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


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


1 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 ) Affected Families Group 14 Julie Kirkpatrick (np) ) 15 Daniel Bernstein (np) ) 16 17 Louis Sokolov ) Association in Defence of 18 Vanora Simpson (np) ) the Wrongly Convicted 19 Elizabeth Widner (np) ) 20 Paul Copeland (np) ) 21 22 Jackie Esmonde (np) ) Aboriginal Legal Services 23 Kimberly Murray (np) ) of Toronto and Nishnawbe 24 Sheila Cuthbertson (np) ) Aski-Nation 25 Julian Falconer (np) )


1 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 (np) ) 8 Kim Twohig (np) ) 9 Chantelle Blom 10 11 Natasha Egan (np) ) College of Physicians and 12 Carolyn Silver ) Surgeons 13 14 Michael Lomer (np) ) For Marco Trotta 15 Jaki Freeman (np) ) 16 17 Emily R. McKernan (np) ) Glenn Paul Taylor 18 19 20 21 22 23 24 25


1 TABLE OF CONTENTS Page No. 2 3 KATY DRIVER, Resumed 4 DIRK HUYER, Resumed 5 MICHELLE SHOULDICE, Resumed 6 7 Cross-Examination by Ms. Erica Baron 6 8 Cross-Examination by Ms. Alison Craig 26 9 Cross-Examination by Mr. Peter Wardle 82 10 Cross-Examination by Mr. Louis Sokolov 142 11 Cross-Examination by Ms. Breese Davies 161 12 Cross-Examination by Ms. Suzan Fraser 190 13 Cross-Examination by Ms. Luisa Ritacca 201 14 Cross-Examination by Mr. William Carter 231 15 Re-Direct Examination by Ms. Linda Rothstein 242 16 17 18 Certificate of transcript 247 19 20 21 22 23 24 25


1 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Ms. Baron...? 7 8 KATY DRIVER, Resumed 9 DIRK HUYER, Resumed 10 MICHELLE SHOULDICE, Resumed 11 12 CROSS-EXAMINATION BY MS. ERICA BARON: 13 MS. ERICA BARON: Good morning, Doctors. 14 My name is Erica Baron, I'm one (1) of the lawyers who 15 acts for Dr. Smith, and I have a few questions for each 16 of you this morning. And I'm going to take the approach 17 that -- that Ms. Rothstein took, starting with Dr. Driver 18 and moving across the panel. 19 So, Dr. Driver, I just want to understand 20 a little bit about your practice makeup, a little bit 21 more about it. So you told Ms. Rothstein yesterday that 22 starting in 1975 about 70 percent of your working life 23 was spent in clinical practice, which I understand was 24 outside of the Hospital for Sick Children. 25 DR. KATY DRIVER: That is correct.


1 MS. ERICA BARON: And am I right that 2 that was a pediatric primary care practice? 3 DR. KATY DRIVER: That is right. 4 MS. ERICA BARON: And can you just tell 5 us briefly the types of cases or problems that you would 6 tend to see in that pediatric primary care practice? 7 DR. KATY DRIVER: I -- I would see the 8 whole gamut from -- well, baby visits to children who had 9 simple ailments, to meningitis, cong -- congenital heart. 10 The full gamut of pediatrics. 11 MS. ERICA BARON: And would that include 12 children who had suffered household accidents? 13 DR. KATY DRIVER: Yes. 14 MS. ERICA BARON: And would it include 15 follow-up visits after being in hospital as a result of 16 household accidents? 17 DR. KATY DRIVER: Sometimes. 18 MS. ERICA BARON: Okay. Dr. Huyer, I now 19 have a few questions for you. 20 You told Ms. Rothstein yesterday that you 21 attended autopsies at the Hospital for Sick Children 22 frequently. 23 DR. DIRK HUYER: Yes. 24 MS. ERICA BARON: And I gather that that 25 meant you attended autopsies on children whose care you


1 hadn't been directly involved in. 2 DR. DIRK HUYER: Both children whose care 3 I had been involved with, but also ones where I had not 4 been involved with. 5 MS. ERICA BARON: And that might even 6 include children who hadn't even been treated at the 7 Hospital for Sick Children. 8 DR. DIRK HUYER: That's correct. 9 MS. ERICA BARON: And sometimes you would 10 attend those autopsies at the request of the pathologist? 11 DR. DIRK HUYER: Occasionally, yes. 12 MS. ERICA BARON: And -- but sometimes 13 you would do it on your own -- sort of for your own 14 educational purposes? 15 DR. DIRK HUYER: I'd say more times than 16 not, and sometimes they would be cases that I had been 17 involved with as a coroner, so I would follow through on 18 those cases as well. 19 MS. ERICA BARON: And I gather that you 20 were generally interested in pathology -- autopsy 21 pathology. That was something that interested you? 22 DR. DIRK HUYER: It fit within my other 23 areas of interest, yes. 24 MS. ERICA BARON: And you felt that it 25 would assist you in your understanding of the cases of


1 living children that you had been involved with? 2 DR. DIRK HUYER: Yes. 3 MS. ERICA BARON: And -- and it would 4 have implications for other living children you might be 5 involved with? 6 DR. DIRK HUYER: Yes. As well as my 7 death investigation as a coroner. 8 MS. ERICA BARON: Right. That was going 9 to be my next question, so. 10 And on the occasions when you were asked 11 to be involved in the autopsy by the pathologist, would 12 it be fair to say that the path -- it was because the 13 pathologist felt there was some issue on which you could 14 be assistance -- 15 DR. DIRK HUYER: Yes. 16 MS. ERICA BARON: -- of assistance? 17 DR. DIRK HUYER: Yes. 18 MS. ERICA BARON: And one (1) of those 19 issues, you told Ms. Rothstein, was the issue of whether 20 the child may have been sexually assaulted? 21 DR. DIRK HUYER: Whether the child had 22 injuries that may be representative of sexual assault, 23 yes. 24 MS. ERICA BARON: Fair enough. And she 25 asked you yesterday -- Ms. Rothstein asked you yesterday


1 -- how many occasions you had assisted with that sort of 2 examination during an autopsy, and I believe you told her 3 that you knew that there were at least two (2) occasions 4 when you had done so. 5 DR. DIRK HUYER: Correct. 6 MS. ERICA BARON: And I gather -- I 7 gather that's because you have been able to locate two 8 (2) reports that you authored in those cases. 9 DR. DIRK HUYER: No, that's recollection. 10 MS. ERICA BARON: Okay. But -- but you 11 recall that you did author reports in those two (2) 12 cases? 13 DR. DIRK HUYER: That's correct. 14 MS. ERICA BARON: And I gather that's -- 15 that's the way you can be certain that you were involved 16 in at least two (2) cases, because you recall repair -- 17 preparing reports. 18 DR. DIRK HUYER: That, or having direct 19 recollection of being there. There's certain times I can 20 directly remember being certain places, but, yes. 21 MS. ERICA BARON: Okay. I'm wondering if 22 you can grab Volume IV -- 23 DR. DIRK HUYER: Yes. 24 MS. ERICA BARON: -- of the briefs in 25 front of you, and it's Tab 30. And, Registrar, it's


1 PFP053105. 2 DR. DIRK HUYER: Yes. 3 MS. ERICA BARON: And I take it this is - 4 - this -- Ms. Rothstein took you to this letter 5 yesterday. 6 It's a letter that you wrote to Detective 7 Constable Charmley -- 8 DR. DIRK HUYER: That's correct. 9 MS. ERICA BARON: -- related to the Jenna 10 case. 11 DR. DIRK HUYER: Yes. 12 MS. ERICA BARON: And Ms. Rothstein 13 reviewed some of this letter with you, but I want to take 14 you to a section that I don't think she reviewed with 15 you. It's the second to last paragraph -- 16 DR. DIRK HUYER: Yes. 17 MS. ERICA BARON: -- where you say: 18 "When I would attend during autopsy 19 procedures, Dr. Charles Smith and I 20 would frequently discuss injuries and 21 autopsy findings. I would generally 22 examine the genitalia in these cases 23 with Dr. Smith. We would discuss the 24 examination." 25 Then you say this:


1 "At that time, I did not..." 2 And just for reference, I take it you mean 3 in 1997 -- 4 DR. DIRK HUYER: Correct. 5 MS. ERICA BARON: -- the time of Jenna's 6 death? 7 "...I did not typically complete notes, 8 and would not have completed a report." 9 DR. DIRK HUYER: Right. That would be in 10 the routine autopsy visits when I would attend, not 11 necessarily ones where I'd be asked to attend for that 12 purpose. 13 So that would be a general part of the 14 examination. And the genitals I would provide my 15 comments at that point, and given that they would likely 16 be normal, then I would discuss them and not do 17 additional notes on those. 18 MS. ERICA BARON: So am I right to 19 understand that in the circumstances where you prepared a 20 report, it was likely because there was some finding that 21 wasn't normal, based on the examination? 22 DR. DIRK HUYER: That or -- and/or I was 23 specifically being asked to attend for that purpose. And 24 so to respond to that specific request I would do it more 25 likely in a report and with notes.


1 MS. ERICA BARON: Okay. And I take it 2 the fact that you haven't been able to locate a report 3 that you authored related to Jenna doesn't really help 4 you with your recollection as to whether you were present 5 at the autopsy performed by Dr. Smith? 6 DR. DIRK HUYER: I think if I had done a 7 report, I think it would have been discoverable. So the 8 lack of the report does not answer the question either 9 way whether I was there or not. 10 MS. ERICA BARON: Right. That -- that's 11 just my point. The fact that you didn't find it doesn't 12 help you with your recollection. 13 DR. DIRK HUYER: That's correct. But I 14 do believe if there was a report I would have found it. 15 MS. ERICA BARON: Fair enough. Now, you 16 -- you told the Commission yesterday that you understood 17 that Dr. Smith had said you were present at Jenna's 18 autopsy? 19 DR. DIRK HUYER: Yes, I've understood 20 that from a variety of sources. 21 MS. ERICA BARON: Okay. And I take it 22 one (1) of the sources -- and correct if I'm wrong -- is 23 the fact that you've now had the opportunity to see Dr. 24 Smith's handwritten notes from the autopsy? 25 DR. DIRK HUYER: I think I was taken to


1 those yesterday or I was taken to the -- the Inquiry -- 2 MS. ERICA BARON: The overview report. 3 DR. DIRK HUYER: -- the overview reports. 4 And that -- that's the first time that I think that I -- 5 I mean, I read the overview report in preparation, but I 6 don't recall seeing the handwritten notes myself. 7 MS. ERICA BARON: Okay. So maybe you 8 could turn to Tab 41 in the binder you've got in front of 9 you. Registrar, this is PFP011082. If you could turn to 10 the second page in those notes. So I -- I know it's 11 somewhat difficult to tell, but you can see on the first 12 page on the second line is the word "Jenna" in Dr. 13 Smith's handwriting and it may not be the easiest to 14 read, but -- 15 COMMISSIONER STEPHEN GOUDGE: Where is 16 that, Ms. Baron? 17 MS. ERICA BARON: In the second line on 18 the first page. 19 COMMISSIONER STEPHEN GOUDGE: Second line 20 on the first page, okay. 21 Yes. Thank you. 22 23 CONTINUED BY MS. ERICA BARON: 24 MS. ERICA BARON: And I think that the -- 25 the case number in the top right-hand corner of the


1 second page corresponds to -- to the Jenna case. 2 So if you turn to the second page, you'll 3 see about two-thirds (2/3s) of the way down the page in 4 the middle of the page -- 5 DR. DIRK HUYER: Yes. 6 MS. ERICA BARON: -- there's a reference 7 that says as follows: 8 "Hymen examined with Dr. D. Huyer." 9 DR. DIRK HUYER: Correct. 10 MS. ERICA BARON: And is this the first 11 time, to your recollection, that you've seen these notes? 12 DR. DIRK HUYER: Yes. 13 MS. ERICA BARON: Okay. Now, Dr. Huyer, 14 you were asked yesterday some questions about the 15 circumstances in which you would perform a sexual assault 16 kit on a child? 17 DR. DIRK HUYER: I -- I don't know if I - 18 - yes. 19 MS. ERICA BARON: And -- and I am correct 20 that the purpose of performing the kit, as distinct from 21 the examination, is that you may be able to collect some 22 sample of -- that would demonstrate semen or DNA of some 23 sort? 24 DR. DIRK HUYER: The -- yeah, the sexual 25 assault evidence kit is to collect potential evidence of


1 sexual assault. Semen or DNA may be examples of those. 2 MS. ERICA BARON: Okay. Could you turn 3 to the next tab in you volume, which is Tab 42. 4 DR. DIRK HUYER: Yes. 5 MS. ERICA BARON: And this is, Registrar, 6 PFP147585. And if you could turn to the second page of 7 the letter? 8 DR. DIRK HUYER: Yes. 9 MS. ERICA BARON: In the third last 10 paragraph, the very last sentence, you provided your 11 opinion to the College of Physicians and Surgeons as 12 follows: 13 "It is my opinion that without specific 14 injury to the hymen, forensic findings 15 of semen/sperm in the vaginal vault 16 would be unlikely in a child of this 17 age." 18 DR. DIRK HUYER: That's correct. 19 MS. ERICA BARON: And you understood that 20 Jenna was twenty-one (21) months old? 21 DR. DIRK HUYER: Yes. 22 MS. ERICA BARON: And I -- I take it what 23 you're saying here is that if there had been a sexual 24 assault that would leave behind semen or sperm, you would 25 expect that there would be an obvious injury?


1 DR. DIRK HUYER: No. 2 MS. ERICA BARON: Okay. Maybe you can 3 explain it to me then. 4 DR. DIRK HUYER: This is where medicine 5 and -- and legal system require that dictionary. So the 6 vaginal vault is the area past the hymen, so above the 7 hymen tissue. So there still is approximately 1 to 2 8 centimetre area from -- that would be outside of the 9 hymen. So there could be -- and also there's the labia 10 majora and labia minora, so the outer part of the 11 genitalia -- those areas could still have evidence 12 present within without penetration past the hymen tissue. 13 So the vaginal vault I was referring to was internal, 14 past the hymen tissue. 15 So with no injury to the hymen then it 16 would be very unlikely that something went inside the 17 vagina, past the hymen. So that's what I was referring 18 to in the letter. But various thing that could be looked 19 -- recognized as evidence could be present outside the 20 hymen and so still within the vaginal area, per se. 21 MS. ERICA BARON: Okay. So then let me 22 take you to the previous -- another previous -- yeah, the 23 previous sentence where you said the following: 24 "Given the age of the child, if there 25 was no specific concerns of sexual


1 assault and there was no evidence of 2 genital injury, I would not likely rec 3 -- I would not have likely recommended 4 completion of specific forensic testing 5 to evaluate for sexual contact." 6 DR. DIRK HUYER: That's correct. 7 MS. ERICA BARON: Okay. 8 DR. DIRK HUYER: On a general -- a 9 general impression, yes. 10 MS. ERICA BARON: All right. So, I want 11 to turn now to talk briefly about the Kenneth case. 12 DR. DIRK HUYER: Yes. 13 MS. ERICA BARON: And you talked about 14 this case with Ms. Rothstein yesterday in the context of 15 your change in practice over time, with respect to 16 reliance on psycho -- psychosocial factors in reaching an 17 assessment about whether injuries to a particular child 18 were accidental or non-accidental. 19 DR. DIRK HUYER: Yes. 20 MS. ERICA BARON: And if I understood 21 your evidence correctly yesterday, while you previously 22 were of the view that some factors could be treated as 23 indicia of non-accidental injury or almost diagnostic of 24 non-accidental injury, those -- those factors are now 25 just considered to be risk factors for non-accidental


1 injury. 2 DR. DIRK HUYER: I don't think that I 3 consider them indicia or factors to make the diagnosis, 4 but -- 5 MS. ERICA BARON: Ever? 6 DR. DIRK HUYER: Not -- 7 MS. ERICA BARON: Okay. 8 DR. DIRK HUYER: -- indicia to make a 9 diagnosis. 10 MS. ERICA BARON: Okay. 11 DR. DIRK HUYER: To contribute to a 12 diagnosis, yes. But the fact that there be psychosocial 13 factors that were positive would not lead to the 14 diagnosis, but they may contribute to the strength of the 15 diagnosis that I made medically. 16 MS. ERICA BARON: All right. Can you 17 explain to me, I take it that some of those psychosocial 18 factors are still, in -- in your words, risk factors. 19 DR. DIRK HUYER: That's correct. 20 MS. ERICA BARON: And can you explain to 21 me, do they still contribute those risk factors? And I 22 recognise that some of them you don't rely on at all 23 anymore, like the reaction of parents to -- to these 24 events. But the -- the risk factors that you still 25 recognise as risk factors, do they contribute to your


1 findings at all now? 2 DR. DIRK HUYER: They don't contribute to 3 my diagnosis -- of my diagnosis or analysis of the 4 injury; they will contribute to concern that may be 5 present within the environment and future protection of 6 that particular child, if it's a live child or future -- 7 well, safety is a better term, future safety of that 8 child or safety of some other. 9 And that safety may be in the form of 10 inflicted injury or it may be in form -- in a form of how 11 safe is it, as far as skills of parenting as far as 12 providing a safe environment to prevent an accidental 13 type of injury. Or to help with the psychological makeup 14 of the environment to help provide better parenting 15 skills to that particular child. And that would fit 16 within the word "safety". 17 So they are important in informing future 18 safety within that environment of the child or family, 19 but as far as impacting or informing the diagnosis of 20 that injury, I don't utilise them at this time -- 21 MS. ERICA BARON: Okay. 22 DR. DIRK HUYER: -- and the literature 23 would support not utilising them at this time. 24 MS. ERICA BARON: Okay. So, let me -- I 25 want to try to understand the implications of that for


1 the opinion that you expressed in the Kenneth case. So, 2 I'm wondering if you can turn up Tab 43 in Volume IV, and 3 this is PFP -- 4 DR. DIRK HUYER: Yes. 5 MS. ERICA BARON: -- 047840. 6 And I gather given the -- your discussion 7 with Ms. Lan -- Ms. Rothstein yesterday that you remain 8 of the view that Kenneth was at risk for a non-accidental 9 injury in view of the psychosocial factors that were 10 present in this case. 11 DR. DIRK HUYER: Kenneth unfortunately 12 passed away, so I'm not sure what you mean by that. 13 MS. ERICA BARON: Let's say, prior to the 14 injuries that he sustained, if you had been asked to give 15 an opinion, or if he hadn't died, you would have said 16 that he was at risk for non-accidental injury in view of 17 the psychosocial makeup. 18 DR. DIRK HUYER: I would say there are 19 significant psycho social concerns that would raise 20 concern about the safety of the environment -- 21 MS. ERICA BARON: Okay. 22 DR. DIRK HUYER: -- in -- at the home 23 environment. And safety no being as -- just to 24 reiterate, safety not necessarily being safety as far as 25 tripping and falling, but safety as far as well-being.


1 Maybe I should rephrase it. Concerns 2 about the environment and how it would impact on 3 Kenneth's well-being, overall well-being. So 4 psychological and physical health. 5 MS. ERICA BARON: Okay. And -- but I 6 take it what you told me is that these factors alone 7 doesn't mean the Kenneth's injuries -- the injuries that 8 Kenneth sustained in this case that ultimately led to his 9 death were necessarily non-accidental in nature. 10 DR. DIRK HUYER: They -- in -- at this 11 stage of my career and my knowledge they would not allow 12 me to add strength to my diagnosis. 13 MS. ERICA BARON: Okay. Can you turn to 14 page 9 of your report? 15 DR. DIRK HUYER: Yes. 16 MS. ERICA BARON: And starting at the 17 third paragraph there you talk about the history that was 18 provided by Kenneth's mother, and you say as following -- 19 as follows: 20 "It is inconsistent with Kenneth's 21 serious clinical condition and ultimate 22 death. The child was found without 23 vital signs by the ambulance attendants 24 on their arrival soon after the 911 25 call. Mother reported that the child


1 was calling to her, not having a 2 seizure and struggling violently while 3 reportedly trapped in a single sheet." 4 And then you go on to explain a bit more 5 about the sheet, and -- and provide some explanation for, 6 what I understand, is your position that the history 7 provided was inconsistent with Kenneth's clinical 8 condition. 9 DR. DIRK HUYER: That's correct. 10 MS. ERICA BARON: And I take it all of 11 this has nothing to do with the psychosocial background 12 involved in -- in Kenneth's case. 13 DR. DIRK HUYER: That's correct. This is 14 the history that was provided to explain the clinical 15 presentation of the child. 16 MS. ERICA BARON: And it was your opinion 17 that that history did not explain his clinical condition. 18 DR. DIRK HUYER: And it continues to be 19 my opinion. 20 MS. ERICA BARON: Okay. Dr. Shouldice, 21 lest you think you're going to be left out, I have a few 22 brief questions for you. If you can turn up Volume I of 23 the volumes, and it's Tab 33. Registrar, it's PFP157748. 24 COMMISSIONER STEPHEN GOUDGE: Sorry, what 25 tab, Ms. Baron?


1 MS. ERICA BARON: 33. 2 COMMISSIONER STEPHEN GOUDGE: Thank you. 3 4 CONTINUED BY MS. ERICA BARON: 5 MS. ERICA BARON: And these are minutes 6 of a SCAN Program team meeting that occurred in 2003, and 7 you have the dubious distinction of being the only member 8 of this panel who was present at that meeting. And so, 9 there's a section in that minute -- in those minutes, 10 that's headed "History Taking by MDs at SCAN." 11 And I take it that this issue was raised 12 by DW, who I assume is Daryl Wolski. 13 DR. MICHELLE SHOULDICE: Yes. 14 MS. ERICA BARON: Can you tell me who 15 Daryl Wolski is? 16 DR. MICHELLE SHOULDICE: Daryl Wolski is 17 a physician from the Niagara Region who does some child 18 abuse work there. And for a period of time, when we had 19 a reduced number of physicians available on our staff, he 20 provided some work with our team one (1) day a week. He 21 also spent a period of three (3) months where he was 22 learning with us or training with us. And I don't recall 23 at -- on this date whether he would have been training or 24 working as a physician with our team. 25 MS. ERICA BARON: Okay. And do you


1 recall this meeting and -- and this discussion in any 2 way? 3 DR. MICHELLE SHOULDICE: Not 4 specifically. 5 MS. ERICA BARON: Okay. You'll note that 6 in the second paragraph under that heading, the very last 7 sentence -- let me just put this question to you: 8 Having briefly looked at this now, do you 9 understand that this discussion was about the Tyrell 10 case? 11 DR. MICHELLE SHOULDICE: No. 12 MS. ERICA BARON: Okay. So let's take 13 that as a given, because I -- I think that -- I think 14 it's clear that Justice Archie Campbell's decision was 15 the decision that I think Dr. Huyer was taken to 16 yesterday about a conversation that the parents -- the 17 stepmother of Tyrell had with Dr. Mian, and that 18 statement was ruled inadmissible by Dr. -- by Justice 19 Campbell. 20 And at the -- in the last -- very last 21 sentence of that second paragraph, it says: 22 "The Crown attorney, therefore, decided 23 to withdraw the charge as a result of 24 that decision." 25 DR. MICHELLE SHOULDICE: Yes.


1 MS. ERICA BARON: Did -- did you have a 2 general understanding or belief that that was the reason 3 why the charges were withdrawn in the Tyrell case? 4 DR. MICHELLE SHOULDICE: You know, I 5 don't know enough about that case to be able to answer 6 the question. 7 MS. ERICA BARON: Okay. And you wouldn't 8 know who had expressed that view at this meeting, because 9 you don't have a specific recollection. 10 DR. MICHELLE SHOULDICE: That's correct. 11 MS. ERICA BARON: Okay. Thank you. 12 Those are my questions, Commissioner. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 14 Baron. I appreciate you finishing early, but it is way 15 under your time. 16 MS. ERICA BARON: Yes. 17 COMMISSIONER STEPHEN GOUDGE: Ms. 18 Craig...? 19 20 CROSS-EXAMINATION BY MS. ALISON CRAIG: 21 MS. ALISON CRAIG: Thank you, 22 Commissioner. Good morning doctors. 23 DR. DIRK HUYER: Good morning. 24 DR. MICHELLE SHOULDICE: Good morning. 25 MS. ALISON CRAIG: My name is Alison


1 Craig and I am one of the lawyers that acts for the 2 interests of nine (9) individuals who were convicted of 3 crimes relating to the deaths of children in which Dr. 4 Smith was involved in one (1) way or another. And mostly 5 I'm just going to concentrate just on specific cases. 6 But Dr. Shouldice, I just wanted to touch 7 briefly on something you said yesterday that I thought 8 was interesting. I think you testified that medical 9 witnesses can become defensive on the stand when they're 10 challenged about their opinions and, therefore, are often 11 likely to strengthen their opinions somewhat as a result? 12 DR. MICHELLE SHOULDICE: I don't think I 13 said "often" or "likely," but I think that's a 14 possibility, yes. 15 MS. ALISON CRAIG: That was the thrust of 16 your -- your testimony. 17 And you can see the danger, I assume, that 18 raises when somebody comes to Court, a medical expert, in 19 front of a jury, and then as a result of, you know, 20 pressure from defence counsel or whomever, strengthens 21 their opinions somewhat, and goes beyond what the medical 22 evidence can support. 23 You can see the danger there? 24 DR. MICHELLE SHOULDICE: Yeah. I think 25 when we were discussing this yesterday, we were using


1 that point to illustrate, I think, the importance of 2 understanding that that may occur, and the importance of 3 recognizing that issue as an expert who may be 4 testifying, in order to -- to be aware of it, and to try 5 to prevent it. 6 MS. ALISON CRAIG: And, so do you think 7 it would be of assistance, therefore, to provide some 8 sort of training to experts, in this case members of the 9 SCAN team, that are going to Court to testify as expert 10 witnesses? 11 DR. MICHELLE SHOULDICE: Yes, I do think 12 that would be helpful. 13 MS. ALISON CRAIG: Okay. And I am going 14 to move now to the specific cases, and, Dr. Huyer, I'm 15 going to be directing most of this to you. 16 Would you agree with me -- and I think you 17 testified yesterday and agreed -- that it's inappropriate 18 for members of the SCAN team, or anybody else with no 19 training in pathology, to be offering opinions on cause 20 of death? 21 DR. DIRK HUYER: Generally speaking, my 22 answer would be yes. I think there are circumstances 23 where opinions could be provided, but generally speaking, 24 my answer would be yes. 25 MS. ALISON CRAIG: Okay. And, Mr.


1 Registrar, if we could pull up please, PFP001546, and I 2 believe that's found in Volume IV, Tab 28. You looked at 3 this yesterday -- 4 DR. DIRK HUYER: I'm sorry, Volume IV? 5 MS. ALISON CRAIG: Yes -- 6 DR. DIRK HUYER: Thank you. 7 MS. ALISON CRAIG: -- Tab 28. Ms. 8 Rothstein took you to this letter yesterday. It's dated 9 March 23rd, 1992 -- 10 DR. DIRK HUYER: Yes. 11 MS. ALISON CRAIG: -- from you to Dr. 12 Robertson of the Children's Aid Society. 13 DR. DIRK HUYER: Yes. 14 MS. ALISON CRAIG: And if we could go to 15 page 2, I believe starting at the fifth paragraph, you 16 say: 17 "The clinical picture of retinal 18 hemorrhages, lack of signs of acute 19 external injury, intracranial 20 hemorrhage, and the pattern observed on 21 this child's CAT Scan, and described 22 above, significant brain injury with 23 resultant sequelae of respiratory 24 difficulties, depressed level of 25 consciousness, seizures, and finally


1 death, without any history of 2 significant trauma or other medical 3 problem is very suggestive of the 4 Shaken Baby Syndrome. The syndrome is 5 classically described to be present 6 when the noted group of clinical 7 features are observed in a child." 8 And then you -- you then go on to describe 9 in more detail Shaken Baby Syndrome, and conclude: 10 "The lack of history to explain the 11 clinical diagnosis is very concerning, 12 and coupled with the known mechanism is 13 very suggestive of non-accidental 14 injury." 15 DR. DIRK HUYER: Yes. 16 MS. ALISON CRAIG: Can we just go to the 17 next page. I see at the bottom there, this letter was 18 directed not only to Dr. Robertson, but to Dr. Smith and 19 to the homicide detective, Detective Prisor. 20 DR. DIRK HUYER: And to the neurologist, 21 and to the medical records, yes. 22 MS. ALISON CRAIG: Correct. And this 23 letter was written shortly after Gaurov passed away, 24 correct? 25 DR. DIRK HUYER: That's correct.


1 MS. ALISON CRAIG: And you attended the 2 autopsy? 3 DR. DIRK HUYER: Yes, I did. 4 MS. ALISON CRAIG: So I'm going to 5 suggest to you that, particularly in light of the 6 preceding paragraphs where the circumstances of Gaurov's 7 death are outlined, the fact that you attended the 8 autopsy and then the fact that this was written after his 9 death, that this letter could quite clearly be taken to 10 be providing an opinion on cause of death. 11 DR. DIRK HUYER: If -- 12 MS. ALISON CRAIG: Is that fair? 13 DR. DIRK HUYER: -- if people didn't read 14 it carefully, yes, I could understand that. But I've 15 been quite careful in the letter to write the clinical 16 diagnosis, and that was speaking to the pre-death 17 diagnosis, and purposefully I would have written that, 18 and also noted that preliminary autopsy results were 19 consistent with my opinion, my diagnosis, as opposed to 20 stating that this was the cause of death. 21 But, yes, I could understand how people, 22 if they did not read it carefully and didn't fully 23 understand the dynamics of the letter, could interpret it 24 that way. 25 MS. ALISON CRAIG: You're not talking


1 about a different set of injuries; you're talking about 2 the injuries that ultimately lead to Gaurov's death. 3 DR. DIRK HUYER: I'm talking about the 4 injuries that I was aware of prior to the death through 5 my clinical evaluation. 6 That's what I'm referring to and 7 commenting upon, and that was the purpose of this letter. 8 MS. ALISON CRAIG: Okay. And I believe 9 you testified yesterday -- 10 COMMISSIONER STEVEN GOUDGE: Can I just - 11 - this is a theoretical medical question, Dr. Huyer. 12 The diagnostic indicators that you use 13 here are all indicators that don't require autopsy? 14 DR. DIRK HUYER: That's correct. All of 15 these were -- yes, they are found through the 16 ophthalmological evaluation; the CAT Scan evaluation -- 17 COMMISSIONER STEVEN GOUDGE: Right. 18 DR. DIRK HUYER: -- the clinical 19 examination -- 20 COMMISSIONER STEVEN GOUDGE: Right. 21 DR. DIRK HUYER: -- skeletal survey, 22 laboratory testing -- 23 COMMISSIONER STEVEN GOUDGE: Right. 24 DR. DIRK HUYER: -- and there was a 25 lumbar puncture in this case, as well.


1 COMMISSIONER STEVEN GOUDGE: How much 2 additional information about these clinical symptoms -- 3 how much additional information is derived from a 4 subsequent autopsy? 5 DR. DIRK HUYER: The subsequent autopsy 6 could reveal some microscopic changes within the brain or 7 could demonstrate some findings such as an abnormality in 8 the blood vessel, development that could lead to a 9 potential aneurismal bleed; less likely, but possible. 10 There could be some infection found within 11 the brain. There could also be other signs of injury 12 that I wouldn't have served -- observed, or other medical 13 problems that potentially could lead to these, albeit 14 unlikely. All of those things could come forward. 15 COMMISSIONER STEPHEN GOUDGE: The source 16 of the re-bleed in this case, would that have been 17 apparent to you on the CAT Scan? 18 DR. DIRK HUYER: There was, on review of 19 the CAT Scan, in my discussion with the neuroradiologist 20 there was evidence of older hemorrhage in the back part 21 of the head, if I recall correctly. And so in my 22 comments yesterday, up in to my knowledge of -- of re- 23 bleeding up to the stage of 2001, when I was still -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. DIRK HUYER: -- very current in the


1 literature, it's my interpretation that this wouldn't fit 2 with -- 3 COMMISSIONER STEPHEN GOUDGE: Right. I 4 understand that -- 5 DR. DIRK HUYER: Yeah. 6 COMMISSIONER STEPHEN GOUDGE: -- and I 7 remember your evidence about that. What I was really 8 getting at was whether the CAT Scan was as good an 9 information source about the re-bleed issue as the 10 autopsy. 11 DR. DIRK HUYER: Anything is better by 12 seeing it directly with your eyes, as opposed to by an 13 imaging study. So yes, the autopsy would be better. So 14 yes, it would help to clarify that issue somewhat. 15 COMMISSIONER STEPHEN GOUDGE: Yes. And 16 do you have any comment on that? 17 DR. MICHELLE SHOULDICE: For example, 18 there may be small areas of bleeding which aren't seen on 19 a CAT Scan which my be evident on autopsy, for example, 20 which -- so that would be one (1) example of something 21 you might see on autopsy that you might see on a CAT 22 Scan. 23 COMMISSIONER STEPHEN GOUDGE: Right, 24 okay, thanks. Thanks, Ms. Craig. 25


1 CONTINUED BY MS. ALISON CRAIG: 2 MS. ALISON CRAIG: Thanks, Commissioner. 3 Something else I wanted to clear up, Dr. Huyer -- 4 DR. DIRK HUYER: Certainly. 5 MS. ALISON CRAIG: -- from your testimony 6 yesterday. I understood you, and correct me if I'm 7 wrong, to testify that at the time you wrote this report 8 you were unaware of reports from the scene that indicated 9 somebody may have shaken Gaurov in an attempt to 10 resuscitate him. 11 DR. DIRK HUYER: I don't have specific 12 recollection, but reading my report and the last 13 paragraph on page 2: 14 "No history of shaking was provided and 15 shaking was denied on direct 16 questioning." 17 That tells me that I was not aware of it, 18 because I can't imagine why I would have written that in 19 there if I was aware of it. 20 MS. ALISON CRAIG: And that, 21 understanding clearly, would have influenced what you 22 were writing in this report. 23 DR. DIRK HUYER: Yes, I wouldn't have 24 written that if that was there, and I would have then 25 opined on the contribution that that may have provided in


1 my clinical findings, and -- and so that would -- similar 2 to what I was talking about yesterday in my report 3 writing now. And even then my report writing likely 4 would have included additional information of how 5 injuries were reported to have occurred because that's 6 part of the analysis that I believe is important for 7 myself in reaching an opinion. 8 MS. ALISON CRAIG: Okay. Well, I wonder 9 if this could help. Registrar, if we could have 10 PFP154330, that's, I believe, Volume II, Tab 12. 11 COMMISSIONER STEPHEN GOUDGE: Sorry, what 12 volume, Ms. Craig? 13 MS. ALISON CRAIG: I believe it's Volume 14 II, Tab 12. 15 COMMISSIONER STEPHEN GOUDGE: Thank you. 16 DR. DIRK HUYER: Yes. 17 18 CONTINUED BY MS. ALISON CRAIG: 19 MS. ALISON CRAIG: And this appears -- 20 this is your handwriting -- 21 DR. DIRK HUYER: Yes. 22 MS. ALISON CRAIG: -- correct? This 23 appears to be a set of notes you made on March the 20th-- 24 DR. DIRK HUYER: Yes. 25 MS. ALISON CRAIG: -- 1992. That would


1 be three (3) days before the report of March 23rd. 2 DR. DIRK HUYER: Yes. 3 MS. ALISON CRAIG: And then if we could 4 go to page 3 of that document, please. 5 DR. DIRK HUYER: Yes. 6 MS. ALISON CRAIG: Three (3) lines down, 7 I read that to say: 8 "Wife picked up child, shook to make 9 breathe." 10 Am I reading that correctly? 11 DR. DIRK HUYER: Sorry, where is that? 12 MS. ALISON CRAIG: The -- starting the 13 third line down, or perhaps the fourth, if you include 14 the heading. 15 DR. DIRK HUYER: Follow the next -- sorry 16 -- the page -- yeah. 17 MS. ALISON CRAIG: Yeah, page 3. 18 DR. DIRK HUYER: Yeah. 19 MS. ALISON CRAIG: It says: 20 "Wife picked up child, shook to make 21 breathe." 22 DR. DIRK HUYER: Yes. 23 MS. ALISON CRAIG: So, in fact it appears 24 that three (3) days before you wrote that report you were 25 aware of reports from the scene indicating someone had


1 shaken Gaurov to resuscitate him. 2 DR. DIRK HUYER: Yeah, it is my 3 recollection that there was no significant violence 4 involved in that -- in the discussions that I had at that 5 time. 6 MS. ALISON CRAIG: You make no mention of 7 that observation in your report. 8 DR. DIRK HUYER: No, I don't. 9 MS. ALISON CRAIG: All right. And if we 10 could also please go to PFP154884, which is Volume II 11 again, Tab 20. This is the notes of Detective Line, who 12 is one (1) of the detectives involved in the case. 13 DR. DIRK HUYER: Yes. 14 MS. ALISON CRAIG: And if we could go to 15 page 14. These notes, again, we can see are made on 16 March 23rd, 1992, which is the date of your report? 17 DR. DIRK HUYER: Yes. 18 MS. ALISON CRAIG: And about halfway down 19 it says -- or at least my interpretation of it says: 20 "Dr. Charles Smith at Sick Kids 21 Hospital, re. update. Still of the 22 opinion that trauma was from either two 23 (2) sources, Shaken Baby/blunt trauma. 24 He has consulted with Dr. Huyer of the 25 SCAN Program. They both have


1 misgivings about criminal element. 2 Quote, 'struggled with this being 3 criminal.'" 4 So I have a couple of questions arising 5 out of that. First, these notes appear to have been made 6 on the same date that you wrote your report indicating 7 that non-accidental injury was a substantial likelihood 8 and likely your conclusion? 9 DR. DIRK HUYER: Yes. 10 MS. ALISON CRAIG: But it appears from 11 these notes, does it not, that you were still having 12 misgivings at the time about whether in fact they were 13 non-accidental? 14 DR. DIRK HUYER: Well, I think there's 15 two (2) steps here. One (1) is it's Detective Line's 16 notes and not -- and not a direct conversation with me 17 according to his notes. 18 MS. ALISON CRAIG: Yeah, fair enough. 19 DR. DIRK HUYER: And so I don't know what 20 he heard from Dr. Smith, and I don't know what Dr. Smith 21 interpreted from what I might have said. And I don't 22 know when Dr. Smith might have had those conversations 23 with me. So my perspective I don't -- I -- there's too 24 many variables for me to assume that to be the case. I'm 25 not saying it's not, but I can't assume it to be the


1 case, based upon that -- post caveats. 2 MS. ALISON CRAIG: Okay. Well, if we 3 could go to Tab 23 of the same volume? 4 DR. DIRK HUYER: Yes. 5 MS. ALISON CRAIG: That PFP154389. 6 DR. DIRK HUYER: Yes. 7 MS. ALISON CRAIG: And this appears to be 8 the notes from a SCAN Team conference on March the 26th 9 of 1992 -- 10 DR. DIRK HUYER: Yes. 11 MS. ALISON CRAIG: -- do I have that 12 correct? And if we look under SCAN members present it 13 says "all team". 14 DR. DIRK HUYER: Yes. 15 MS. ALISON CRAIG: So you were at this 16 meeting? 17 DR. DIRK HUYER: I don't know. I believe 18 so. 19 MS. ALISON CRAIG: Okay. And it shows 20 Dr. Smith there was present as well? 21 DR. DIRK HUYER: Yes. 22 MS. ALISON CRAIG: Then under the 23 Presenting Problem heading sta -- starting at the end of 24 the second line there it says: 25 "Near-miss -- miss SIDS or SBS."


1 Do I read that correctly? 2 DR. DIRK HUYER: It says, "Neurology 3 consult." Question: 4 "Near-miss SIDS or Shaken Baby 5 Syndrome." 6 MS. ALISON CRAIG: Right. So it appears 7 that on March the 26th of 1992 it was still quite unclear 8 in the minds of the SCAN Team and all those involved, 9 whether or not this was non-accidental cause of death? 10 DR. DIRK HUYER: No. That was the 11 neurology consult init -- additional -- or sorry, initial 12 question as to which of those was. So that was the 13 initial consult while the child was still alive, as I 14 recall, and as I interpret this. 15 MS. ALISON CRAIG: What -- 16 DR. DIRK HUYER: Not as I recall, but as 17 I interpret this. 18 MS. ALISON CRAIG: Is it fair to say that 19 this indicates SIDS was still a live issue at this point? 20 DR. DIRK HUYER: I -- I hesitate with the 21 terminology, but this would have been a consultation that 22 would have been the reason for consult while the child 23 was still alive by the neurology, I believe, by looking 24 at this. 25 MS. ALISON CRAIG: I see, okay.


1 DR. DIRK HUYER: So that's while the 2 child was still there. I was called or neurology was 3 called and -- and that was the question being asked while 4 the child was still alive. The neurologist would not be 5 involved after death. So this would have been the 6 initial contact to either the neurologist or myself with 7 that question. 8 MS. ALISON CRAIG: Okay. Well, in any -- 9 as I take it, and correct me if I'm wrong -- SIDS was 10 still being discussed. 11 DR. DIRK HUYER: I'll try to correct you 12 once more. That -- that was the initial consultation 13 request, likely while the child was alive and when the 14 child initially came into the hospital. I would need the 15 hospital chart to clarify that. 16 But this is just a chronology of the sort 17 of information that was present relating to the case, and 18 so this is just one (1) of the initial -- the neurologist 19 got involved by the intensive care unit, likely, with the 20 question at that time while the child was still alive on 21 the ventilator: Could this be Shaken Baby Syndrome? 22 Could this be a near-miss SIDS? 23 The -- that may have been prior to any of 24 the subsequent testing, such as a CAT Scan, such as the 25 ophthalmological evaluation, and so it would be a


1 reasonable initial question to ask. But at the time of 2 this conference that isn't -- it -- my interpretation of 3 this, knowing how these reports were written, that is not 4 the belief of what's occurring at that point. 5 MS. ALISON CRAIG: Okay. Thank you, 6 Doctor. I'm going to turn now briefly to the Valin case. 7 DR. DIRK HUYER: Yes. 8 MS. ALISON CRAIG: And just by way of 9 background because I don't think this one was covered 10 yesterday. Valin was born on February 11th, 1989. She 11 died on June the 26th or 27th, 1993. Her uncle was 12 convicted of first degree murder in 1994. And in October 13 of last year the Ontario Court of Appeal entered an 14 acquittal in the case. 15 DR. DIRK HUYER: Yes. 16 MS. ALISON CRAIG: And if we could go to, 17 please, PFP003220, that's Volume IV, Tab 14. 18 DR. DIRK HUYER: Yes. 19 MS. ALISON CRAIG: And this is a report 20 from the Valin case dated August the 6th, 1993, I 21 believe. 22 DR. DIRK HUYER: Yes. 23 MS. ALISON CRAIG: And if we could look 24 at the third paragraph, please. The chi -- 25 DR. DIRK HUYER: I'm -- you'll take me to


1 the -- counting paragraphs is difficult in this report, 2 so take me to the -- 3 MS. ALISON CRAIG: Yes. Well, it's the 4 paragraph: 5 "The child's face and upper chest show 6 evidence --" 7 DR. DIRK HUYER: Yes. 8 MS. ALISON CRAIG: 9 "-- of petechia and small bruises, if 10 these are confirmed by histologic 11 examination, there pattern is 12 consistent with an asphyxial mode of 13 death, resulting from chest or 14 abdominal compression." 15 And then if we go to the second page, 16 please, and look at the conclusion, it says: 17 "This child's photographs show 18 findings, which is confirmed by the 19 post-mortem examination, indicate death 20 by asphyxiation, trauma to the head, 21 and injury to the perianum and anus. 22 In the presence of a reasonable explana 23 -- reasonable explanation by history, 24 they indicate non-accidental trauma, 25 including abuse."


1 DR. DIRK HUYER: Just to clarify for the 2 record, it's in the absence of a reasonable explanation. 3 MS. ALISON CRAIG: Oh yeah, sorry about 4 that. Thank you, Doctor. 5 DR. DIRK HUYER: You're welcome. 6 MS. ALISON CRAIG: So this appears to be 7 a clear opinion on the cause of death, does it not? 8 DR. DIRK HUYER: With the -- with the 9 caveat that, which if confirmed by post-mortem 10 examination, yes. 11 MS. ALISON CRAIG: Right. Well, we see 12 the terms "asphyxial mode of death", "death by 13 asphyxiation" throughout the letter there. 14 DR. DIRK HUYER: Yes, and -- and -- 15 MS. ALISON CRAIG: And if -- 16 DR. DIRK HUYER: -- with the caveats 17 added that if the post-mortem examination findings 18 confirm the various things that they've identified. 19 MS. ALISON CRAIG: Right. And then if 20 you look at the two (2) signatures at the bottom of the 21 page there, the second one (1) we see is Dr. Smith, the 22 pathologist. 23 DR. DIRK HUYER: Yes. 24 MS. ALISON CRAIG: The first one (1) is 25 Dr. Mian, from the SCAN Team.


1 DR. DIRK HUYER: Yes. 2 MS. ALISON CRAIG: And to your knowledge 3 did Dr. Mian have any training in pathology? 4 DR. DIRK HUYER: No specific training to 5 my knowledge. 6 MS. ALISON CRAIG: She was in fact a 7 pediatrician, as we can see from under her -- her 8 signature there. 9 DR. DIRK HUYER: Was and is. 10 MS. ALISON CRAIG: Was and is, yes. 11 Yeah, she has clearly here; cosigned a report on cause of 12 death with Dr. Smith. 13 DR. DIRK HUYER: And as I read through 14 the volume, it appears to me that she may have been the 15 initial draft report producer of that, as well. So the - 16 - probably the bulk of the authoring was done by her by 17 looking through the volume. I could stand corrected, but 18 it appears to be that way. 19 MS. ALISON CRAIG: Would you agree with 20 me that it's inappropriate for a pediatrician to be 21 authoring a report indicating cause of death? 22 DR. DIRK HUYER: Generally speaking, I do 23 not think it's the role of a pediatrician without 24 additional training or expertise in pathology to be 25 authoring a report that states the cause of death.


1 MS. ALISON CRAIG: And I think it's fair 2 to say that seeing a report coming from an expert in 3 child abuse is fairly to -- it's going to be held in 4 fairly high regard; an opinion coming from the Director 5 of the SCAN Team. 6 Is that fair? 7 DR. DIRK HUYER: In high regard by...? 8 MS. ALISON CRAIG: Well, by anybody who's 9 reading it, frankly. 10 DR. DIRK HUYER: Frankly, I don't think 11 that that's correct, but it would depend on who -- who 12 the audience would be. I think that certainly the 13 criminal justice system would likely hold this in high 14 regard, yes. 15 MS. ALISON CRAIG: A jury, for example, 16 would be likely to hold this opinion in high regard. 17 DR. DIRK HUYER: I think it would depend 18 on how the evidence is presented to the jury and how the 19 criminal justice system responded to that presentation, 20 and in fact, how defence counsel was able to illustrate 21 potential difficulties with this being presented. 22 So I think that that -- I wouldn't be so 23 black and white about it; I really think it's how the 24 criminal justice system is able to respond to such an 25 expert opinion.


1 MS. ALISON CRAIG: Would it have been 2 preferable, do you think, for Dr. Mian to have written 3 her own report, rather than coauthored one (1) with Dr. 4 Smith? 5 DR. DIRK HUYER: My experience over the 6 years, and I've coauthored in the past, my experience is 7 that I now do not coauthor because it's my belief that 8 individuals who read the report should know what the 9 individual who wrote the report is specifically thinking. 10 So while I may have this whole opinion 11 that's written in this -- I'm sorry, I don't share this 12 opinion, by the way, but if I had an opinion that was in 13 a -- it's just hard to tease the two (2) out, and I think 14 it's important for anybody reading to understand who's 15 providing what opinion. 16 So, no, I would not support this. 17 MS. ALISON CRAIG: Okay, thank you. And 18 finally I'm going to turn to the Kenneth case -- 19 DR. DIRK HUYER: Yes. 20 MS. ALISON CRAIG: -- which we've already 21 heard a lot about. We'll start with PFP047840. 22 DR. DIRK HUYER: I'm sorry, that's, if I 23 recall, Volume IV? 24 MS. ALISON CRAIG: Oh, yes, I'm sorry, 25 Volume IV, Tab 43.


1 DR. DIRK HUYER: Thank you. 2 MS. ALISON CRAIG: And this, again, the 3 letter that you wrote to Detective Carroll of the Durham 4 Regional Police Force regarding Kenneth case. 5 DR. DIRK HUYER: That's correct. 6 MS. ALISON CRAIG: And if we could go to 7 page 9 of that report. 8 DR. DIRK HUYER: Yes. 9 MS. ALISON CRAIG: Starting about halfway 10 down it says: 11 "The history that was provided by 12 Kenneth's mother is inconsistent with 13 Kenneth's serious clinical condition 14 and ultimate death. The child was 15 found without vital signs by the 16 ambulance attendants on their arrival 17 soon after the 911 call. The mother 18 reported that the child was calling to 19 her, not having a seizure, struggling 20 violently while reportedly trapped in a 21 single sheet." 22 And you go on to explain more about the 23 circumstances of the death. And then at the very bottom 24 of the page you write: 25 "Kenneth most likely suffered an


1 asphyxial death, which is without 2 adequate explanation. Non-accidental 3 asphyxiation is, therefore, a likely 4 explanation. Suffocation is one (1) of 5 the forms of non-accidental 6 asphyxiation. When children are 7 suffocated, mechanical obstruction of 8 the airway is forcibly produced." 9 And you go on with a more detailed 10 commentary on asphyxiation. Then, in the final 11 paragraph, you state: 12 "In summary, Kenneth suffered a fatal 13 asphyxial injury which remains 14 unexplained medically by his history or 15 by his mother." 16 Sir, would it be fair to say that that 17 comes across as an opinion on cause of death? 18 DR. DIRK HUYER: Yes, without the caveats 19 that I added in my previous report. This one was 20 commenting directly on the cause of death, yes. 21 MS. ALISON CRAIG: Okay. And that's 22 without any formal training in pathology, whatsoever? 23 DR. DIRK HUYER: Well, no, I wouldn't go 24 that far. I was a coroner at that point. I had worked 25 in the autopsy suite and done a thousand (1,000)


1 autopsies. I didn't have formal -- formal pathology 2 training, but I certainly had a lot of exposure to 3 pathology prior to that time. But, no, I did not have 4 formal training. 5 MS. ALISON CRAIG: So you would agree it 6 was inappropriate to be making that -- that finding. 7 DR. DIRK HUYER: At this stage of my 8 career, I would not be doing -- writing a report as I 9 wrote at that time. 10 MS. ALISON CRAIG: Okay. And then just 11 before we move on, Ms. Rothstein covered this briefly 12 yesterday; item number 6, in your list of -- 13 DR. DIRK HUYER: Yes. 14 MS. ALISON CRAIG: -- of suggestive non- 15 accidental concerns: 16 "Mother's behaviour during Kenneth's 17 end stages at the ICU and at HSC." 18 And I take it from your evidence yesterday 19 and, in fact, this morning, you would agree that that 20 observation -- the observations made about the mother at 21 the hospital -- could be explained by any infinite number 22 of things. 23 DR. DIRK HUYER: Yeah, I wouldn't try to 24 explain them any more, and I think that this was part of 25 a -- an attempt to explain that behaviour. And now, not


1 only do I not try to explain that, but I also, my -- 2 personally and professionally, do not pay heed to that 3 appearance and I educate and teach on a regular basis 4 about not utilizing such behaviour as a determinant in 5 how a diagnosis might be made. 6 MS. ALISON CRAIG: Okay, thank you. And 7 you were right in your prediction yesterday. I'm just 8 going to turn briefly to your testimony in Kenneth's 9 case; PFP006091, Tab 86, Volume II. 10 And I'm -- I'm raising this -- I 11 understand that you no longer feel this type of testimony 12 is appropriate, but -- 13 DR. DIRK HUYER: Sorry, can you take me 14 the tab again? 15 MS. ALISON CRAIG: Yes, it's Tab 86, I 16 believe, of Volume II. 17 DR. DIRK HUYER: Thank you. 18 MS. ALISON CRAIG: But, if I understood 19 you correctly yesterday, there's a lot of people that 20 still do refer to this type of -- of demeanor evidence as 21 indicative of -- of abuse. I believe that's what you 22 said yesterday. 23 DR. DIRK HUYER: I said that frequently I 24 interact with investigators who appear to be aware and 25 appear to make comments and, at times, appear to direct


1 their investigations are based upon -- or not -- sorry, 2 not directly based upon, but are impacted by demeanor 3 evidence. 4 MS. ALISON CRAIG: Okay. 5 DR. DIRK HUYER: Yes, I do believe that's 6 an ongoing problem. 7 MS. ALISON CRAIG: So, I -- 8 DR. DIRK HUYER: Whether that leads to 9 criminal prosecution and whether that leads to child 10 protection findings is another issue. I can't 11 specifically say that, but I can say that on a frequent 12 basis, demeanor issues are brought forward to me in my 13 role as a coroner investigator or my child maltreatment 14 role. 15 MS. ALISON CRAIG: Okay. So if we can 16 look, I believe, at page 17. It would be 637 in the top 17 corner. 18 DR. DIRK HUYER: Yes. 19 MS. ALISON CRAIG: You're being 20 questioned by the Crown attorney; you've been talking 21 about your interactions with Kenneth -- Kenneth's mother 22 and his hospitalization. Ms. Cameron asks you: 23 "Dr. Huyer, can I just pause there? 24 What was her demeanor like at this 25 point in the interview?"


1 And you answer: 2 "During most of the interview, 3 Kenneth's mother was quite calm, at 4 times appearing giddy, and her 5 descriptions towards me, towards the 6 information provided about Kenneth, at 7 times laughing and appearing, as I say, 8 fairly calm throughout. She was not 9 outwardly demonstrating tearfulness or 10 crying or outwardly demonstrating any 11 significant upset." 12 And then over to the next page you're 13 talking about her demeanor and reaction when told of 14 Kenneth's grave condition. And at the bottom of the 15 page, we continue. 16 "Kenneth's mother -- as I observed 17 Kenneth's mother with Kenneth --" 18 DR. DIRK HUYER: Sorry, bott -- bottom of 19 which page? 20 MS. ALISON CRAIG: Well, I believe it 21 would be page 18. 22 DR. DIRK HUYER: Up top there's numbers - 23 - oh, 18, okay. 24 COMMISSIONER STEPHEN GOUDGE: Sorry, 25 where is it, Ms. Craig?


1 DR. DIRK HUYER: I'm trying to find where 2 you're at. 3 MS. ALISON CRAIG: I had it -- a six 4 thirty-eight (638). 5 DR. DIRK HUYER: And just -- oh, I know 6 why because you've substituted a name. There's where I 7 got confused. 8 MS. ALISON CRAIG: Yes, yes. I 9 substituted a name -- 10 DR. DIRK HUYER: I'm sorry that was -- my 11 apologies. 12 COMMISSIONER STEPHEN GOUDGE: Sorry, 13 start the quote again, so I can -- 14 15 CONTINUED BY MS. ALISON CRAIG: 16 MS. ALISON CRAIG: 17 "As I observed Kenneth's mother with 18 Kenneth, she appeared to be quite 19 calm." 20 DR. DIRK HUYER: I still am not finding 21 that. 22 COMMISSIONER STEPHEN GOUDGE: Yes. 23 DR. DIRK HUYER: That's on -- sorry, 24 Commissioner. It's -- it's the second paragraph on 639 25 in my -- my binder --


1 COMMISSIONER STEPHEN GOUDGE: Okay. 2 DR. DIRK HUYER: -- PFP/19. 3 COMMISSIONER STEPHEN GOUDGE: Yes, I got 4 it. 5 MS. ALISON CRAIG: Thank you, Doctor. 6 I'm just going by my notes here. Thank you. 7 COMMISSIONER STEPHEN GOUDGE: Thank you. 8 DR. DIRK HUYER: Thank you. 9 10 CONTINUED BY MS. ALISON CRAIG: 11 MS. ALISON CRAIG: So we have: 12 "As I observed Kenneth's mother with 13 Kenneth, she appeared to be quite calm 14 again at the bedside and laughing on 15 occasion. She said to Kenneth during 16 talking to him that it was after his 17 bedtime. And when he was having a 18 seizure his eyes would open and make 19 unusual movements." 20 Then starting in the middle of the next 21 paragraph you're describing how Kenneth's mother and her 22 husband were going to get something to eat and offered to 23 get you something. And you acknowledged it may have been 24 inappropriate. Said: 25 "That's okay. If you want to go out


1 and get something, Kenneth is not going 2 to come -- not going to go anywhere." 3 And they responded to that comment: 4 "Me not understand the irony of it, 5 laughing to my comment. Both Kenneth's 6 mother and her husband spontaneously 7 laughing to that." 8 Now, this was testimony you were providing 9 in front of a jury? 10 DR. DIRK HUYER: A judge and jury. 11 MS. ALISON CRAIG: A judge and jury, 12 correct. In hindsight, do you regret giving that 13 evidence? 14 DR. DIRK HUYER: I'm not sure that I 15 regret giving the evidence because it was factual 16 information, and I was asked that information by the 17 Crown attorney. So I don't regret giving evidence. 18 MS. ALISON CRAIG: Well, you have no 19 formal training in the study of human behaviour or 20 psychology, correct? 21 DR. DIRK HUYER: I've interacted with a 22 lot of different people, but I don't have any formal 23 training in that, and these were my observations that I 24 did at the time. So I'm not -- I think that I would 25 probably -- in preparation for trial with the Crown


1 attorney, at this stage, try to understand what they were 2 going to ask me. 3 And I would point out that while if they 4 wanted me to give that information, if I happen to 5 collect that information during a history, which I 6 wouldn't do now, but if I did happen to collect it that I 7 would be reticent to provide any comment on the 8 significance of that information. 9 MS. ALISON CRAIG: Well, are these 10 observations in any way relevant to your clinical medical 11 opinion that you were there to provide as an expert? 12 DR. DIRK HUYER: At this stage, my answer 13 would be no. At that stage, I think that not only I, but 14 also the Crown attorney felt that they were relevant and 15 defence certainly didn't obtain a -- a ruling from the 16 judge, at that time, to not have this evidence put 17 forward. 18 So when I go to court, I answer the 19 questions that are asked of me, much as I'm doing today 20 in this Inquiry, and so if I'm asked the question I'm 21 going to answer the question. But now what I would do 22 and what I do regularly is I put some boundaries on the 23 conclusions that may be drawn. 24 So if defence counsel asks me the 25 significance of this information, I would say, You know


1 what it seemed very unusual, but I don't think it had any 2 significance on my medical diagnosis in -- in a -- in a 3 case these days. 4 COMMISSIONER STEPHEN GOUDGE: You said a 5 moment ago, Dr. Huyer, that you would not collect this 6 information today. 7 DR. DIRK HUYER: No, I wouldn't. 8 COMMISSIONER STEPHEN GOUDGE: So you 9 would not make a note of it at all? 10 DR. DIRK HUYER: Oh, if it was provided 11 to me, but this is -- this is the example of where we 12 were collected histories from the parents, so I spent 13 probably an hour, an hour and a half, with Kenneth's mom 14 getting details about the events that lead to the 15 hospitalization. A detailed analysis -- 16 COMMISSIONER STEPHEN GOUDGE: And this 17 would come from that history? 18 DR. DIRK HUYER: Correct. So -- 19 COMMISSIONER STEPHEN GOUDGE: So you 20 would have a note of it as part of your history taking? 21 DR. DIRK HUYER: If -- oh, that's what 22 all this was in my notes. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. DIRK HUYER: Yeah. 25 COMMISSIONER STEPHEN GOUDGE: Right. So


1 when you said you would not collect it, I take it what 2 you mean is you wouldn't make use of it in your 3 diagnostic task? 4 DR. DIRK HUYER: Well, first of all, I 5 wouldn't be collecting this kind of history in the 6 detail -- 7 COMMISSIONER STEPHEN GOUDGE: You 8 wouldn't be even asking the questions? 9 DR. DIRK HUYER: -- given the discussion 10 that we had earlier yesterday -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. DIRK HUYER: -- about not collecting 13 history because this was a case that -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. DIRK HUYER: -- on presentation would 16 have raised significant concern for me. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. DIRK HUYER: And I would have let the 19 investigators take charge, as opposed to me -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. DIRK HUYER: -- potentially 22 duplicating investigator's role -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. DIRK HUYER: -- or taking over their 25 role.


1 COMMISSIONER STEPHEN GOUDGE: Fair 2 enough. Okay. 3 DR. DIRK HUYER: But if the information 4 was in the hospital chart that would be something that 5 I'd be aware of -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. DIRK HUYER: -- and if asked about 8 that information, yes, I would provide it, but -- 9 COMMISSIONER STEPHEN GOUDGE: But put the 10 boundaries around it, you just recited? 11 DR. DIRK HUYER: Correct. 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 Thanks. 14 DR. DIRK HUYER: You're welcome. 15 16 CONTINUED BY MS. ALISON CRAIG. 17 MS. ALISON CRAIG: Thank you. And you 18 testified yesterday that as a professional you have the 19 ability to tease out this kind of information to 20 determine what's relevant and what's not, in coming to 21 your conclusions? 22 DR. DIRK HUYER: I believe that that's an 23 important aspect of an expert in this area. 24 MS. ALISON CRAIG: Would you agree that a 25 jury, for example, of laypeople may not have the ability


1 to do that? 2 DR. DIRK HUYER: Yes. 3 MS. ALISON CRAIG: And that when they see 4 an expert coming to court who has been found by the court 5 to be an expert in the area of child abuse, who is then 6 providing these types of opinions and observations about 7 the mother's behaviour -- the mother or the parent 8 caregiver who is on trial at that time in front of this 9 jury, that that can be very damaging evidence? 10 DR. DIRK HUYER: I think it could be, but 11 I think it speaks to more than just the jury. 12 Speak of -- I think it speaks to the 13 criminal justice system and the presentation, in -- in 14 allowing of that evidence to be put forward before the 15 jury. 16 So not only is it the witness's 17 responsibility, in my opinion it's also the judge, 18 defence counsel, and Crown attorney, as to what evidence 19 is put forward before the jury. But in -- that's the 20 long answer to your question. 21 If the jury did receive that evidence from 22 a child -- an expert who was found to be able to provide 23 opinion evidence in the area of child maltreatment, yes, 24 I believe that that expert could potentially be -- and 25 that evidence could have a greater weight, and a greater


1 significant to the jury. 2 MS. ALISON CRAIG: Would it be prudent 3 perhaps to issue a protocol or directive of some sort to, 4 in this case members of the SCAN team, but really to all 5 parties involved in death investigations, about the 6 dangers of this kind of demeanor evidence? 7 DR. DIRK HUYER: I think that -- I think 8 that practice is informed by knowledge of the literature; 9 experience in the field, and I think it would be prudent 10 to know if this was being used, that it was not correct. 11 But whether a protocol, I'm not sure that 12 it's -- it's a protocol responsive type of thing. I 13 think it's important for people to recognize it, so... 14 MS. ALISON CRAIG: Training of some sort, 15 perhaps. Would that be a good alternative? 16 DR. DIRK HUYER: I -- I think that's 17 going on, as I've talked about. I train about this on a 18 regular basis, so I think that that's known. I think it 19 speaks to the degree of the expertise and their ability 20 to keep up with knowledge and literature within the 21 field. 22 So I don't think you can respond to that 23 lack of knowledge of the evolving field that we have in 24 medicine and -- and in -- specifically in child 25 maltreatment by developing protocols on a regular basis.


1 I think it's important, and it speaks to an expert on the 2 -- the fact that it's very important to keep up with 3 changing knowledge and -- and to maintain their 4 continuing education. 5 So I think that that's more important, 6 that -- that there is a clear expectation of ongoing and 7 continuing medical education, and peer support and peer 8 review, or peer discussion. 9 That being far -- far more -- from my 10 perspective, more important than a protocol, because you 11 just can't protocol everything. And, so one (1) protocol 12 -- you can have another protocol, another protocol; it -- 13 it sort of doesn't -- I don't think you can respond to it 14 with protocols in an easy way. 15 MS. ALISON CRAIG: Dr. Shouldice, back to 16 the issue of courtroom testimony, as the Director of the 17 SCAN team, is this the kind of testimony that you would 18 appreciate being brought to your attention, if -- if a 19 member of your team perhaps is going to Court and 20 delivering this kind of evidence? 21 Would you like to be aware of that? 22 DR. MICHELLE SHOULDICE: Yes, I would 23 like to be aware of that. I don't believe that currently 24 any of the physicians practising in our program would 25 provide this type of evidence, because of all the changes


1 that we've discussed so far. 2 MS. ALISON CRAIG: Would it be help -- 3 you're not going to be aware, obviously, if this kind of 4 testimony is being provided unless you go to Court on 5 what I imagine is probably a daily basis, or at least 6 frequently, and -- and you don't do that. Obviously you 7 have other duties. You can't attend Court every day that 8 a member of your team is going to. 9 DR. MICHELLE SHOULDICE: Correct. 10 MS. ALISON CRAIG: So should there be 11 some way perhaps that you review transcripts of courtroom 12 testimony as part of your job as Director, in order to 13 ensure, not just this type of evidence, but in order to 14 review -- peer review the evidence that's being provided 15 in Court by members of your team? 16 DR. MICHELLE SHOULDICE: I think peer 17 review of transcripts may be helpful, yes. 18 19 (BRIEF PAUSE) 20 21 MS. ALISON CRAIG: Just one (1) other 22 area I'm going to cover quickly, and this is more of a 23 systemic issue. 24 If we can please pull -- this is Volume 25 IV, Tab 33, and it's Dr. Chiasson's testimony on December


1 the 11th. 2 DR. DIRK HUYER: Volume IV...? 3 MS. ALISON CRAIG: Tab 33, as I have it. 4 DR. DIRK HUYER: Yes. 5 MS. ALISON CRAIG: And when he was here, 6 he was talking about how members of the SCAN team 7 function as part of the forensic medical profession, 8 because they have a necessary interface with the criminal 9 justice system. 10 And at page 178 -- I'm sorry, Registrar, I 11 don't have a PFP number, but if you have it, I can just 12 read it out, what I've got here. It's page 178. 13 And Ms. Fraser is questioning Dr. Chiasson 14 in the context of what I was just talking about, and 15 says: 16 "All right. And do they have the same 17 -- is there a -- same kind of forensic 18 training body, you're -- you have your 19 specialty and then there's similar 20 forensic specialty or certification 21 process for this area of expertise?" 22 Dr. Chiasson answered: 23 "That's a good question. I don't the 24 answer." 25 So Dr. Huyer and Dr. Shouldice, I suppose,


1 is the Director now. My question is, I'm not sure this 2 is clear, although I think we've talked about it a bit, 3 is there any kind of training in forensics that members 4 of the SCAN team are required to participate in? 5 DR. DIRK HUYER: I'll speak to how I 6 developed my expertise and then I'll let Dr. Shouldice 7 speak about the current status of -- of that area. 8 I did not receive formal training. If you 9 talk about the formal training and medical education 10 approach, I received on-the-job formal training, because 11 I was closely supervised during my first number of year - 12 - I think certainly my first year, if not longer, and I 13 learned from reading text books, reading literature, 14 attending conferences in the -- in the area of child 15 maltreatment, and case specific learning, as well as from 16 my colleagues within the hospital from the various 17 subspecialties. 18 I did not -- I did not -- I'm not a 19 pediatrician. I did not receive specific training in a 20 fellowship type of program, which is -- a fellowship is 21 when you've achieved your medical training and then go 22 forward to have subspecialty training with strict 23 supervision and -- and education through that period; I 24 did not receive that. 25 Dr. Shouldice was -- did undergo a


1 fellowship -- or did undertake a fellowship under my 2 direction and that led to her developing her expertise 3 within child maltreatment as form -- as a -- as a degree 4 of formal training, because it was a specifically goals 5 and objectives designed fellowship with expectations and 6 review that was done with me, and specific supervision 7 recognising the level of expertise that she had. 8 With -- so, I would have direct patient 9 contact when she would have direct patient contact during 10 her fellowship year, in contrast to myself, where I 11 always have the direct patient contact, and then somebody 12 would review in discussion with me. 13 Clearly not every case that Dr. Shouldice 14 was involved with during her fellowship I saw, but the 15 vast majority I saw, from what I recall. And -- 16 COMMISSIONER STEPHEN GOUDGE: Did you get 17 anything on forensic medicine as an undergraduate medical 18 student? 19 DR. DIRK HUYER: I think I had one (1) 20 lecture by Dr. Hillsdon Smith, from what I recall. 21 COMMISSIONER STEPHEN GOUDGE: Dr. 22 Shouldice, you shook your head. 23 DR. MICHELLE SHOULDICE: Nothing. 24 Nothing. 25 COMMISSIONER STEPHEN GOUDGE: Nothing.


1 Thank you. 2 DR. DIRK HUYER: So Dr. Shouldice can 3 speak to the current status of training better than I. 4 5 CONTINUED BY MS. ALISON CRAIG: 6 MS. ALISON CRAIG: Please. 7 DR. MICHELLE SHOULDICE: So currently any 8 pediatrician who would work on our team as a staff member 9 would be trained within a fellowship program. And 10 training is increasingly being formalised within this 11 area of child maltreatment as far as pediatrics goes. 12 In the United States they're -- they are 13 going -- undergoing a process by which child abuse 14 pediatrics is being certified as a subspecialty of 15 pediatrics. 16 COMMISSIONER STEPHEN GOUDGE: That's 17 interesting. 18 DR. MICHELLE SHOULDICE: Yeah. It's just 19 gone through -- has been approved by the American Board 20 of Pediatrics as a subspecialty, and all of the programs 21 across the states are formalising their fellowship 22 programs and board exams. 23 COMMISSIONER STEPHEN GOUDGE: And that's 24 a post-residency qualification? 25 DR. MICHELLE SHOULDICE: Post-residency


1 qualification, a two (2) to three (3) year -- 2 COMMISSIONER STEPHEN GOUDGE: How many -- 3 two (2) to three (3) year -- 4 DR. MICHELLE SHOULDICE: -- a two (2) to 5 three (3) year fellowship. 6 COMMISSIONER STEPHEN GOUDGE: And how 7 much of that fellowship would be forensic, as opposed to 8 subspecialising in identification of injury? 9 DR. MICHELLE SHOULDICE: I don't actually 10 have -- 11 COMMISSIONER STEPHEN GOUDGE: By 12 forensic, I'm talking about things like, Dr. Shouldice, 13 drafting reports that will get to the legal system and 14 interfacing with actors in the legal system, police, 15 Crown, and giving evidence. Those sorts of -- 16 DR. MICHELLE SHOULDICE: Mm-hm. I don't 17 know specifically how much of the fellowships will be 18 directed towards those areas specifically, but all -- 19 almost all the education overlaps between clinical, 20 forensic, because -- because of the type of work that 21 we're doing -- 22 COMMISSIONER STEPHEN GOUDGE: Exactly. 23 DR. MICHELLE SHOULDICE: To some extent 24 you could call it all of forensic relevance. 25 COMMISSIONER STEPHEN GOUDGE: Right.


1 DR. MICHELLE SHOULDICE: Yeah. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. MICHELLE SHOULDICE: And so those -- 4 those programs -- there will be board exams now in child 5 abuse pediatrics for those who are working in the area in 6 order for them to be board certified as a subspecialist. 7 COMMISSIONER STEPHEN GOUDGE: Okay. That 8 one would have to go and get tested on in the United 9 States -- 10 DR. MICHELLE SHOULDICE: That's right. 11 COMMISSIONER STEPHEN GOUDGE: -- in order 12 to be board qualified -- 13 DR. MICHELLE SHOULDICE: That's right. 14 COMMISSIONER STEPHEN GOUDGE: -- as 15 forensic pathology used to be, up until -- 16 DR. MICHELLE SHOULDICE: That's right. 17 COMMISSIONER STEPHEN GOUDGE: -- almost 18 today and -- 19 DR. MICHELLE SHOULDICE: That's right. 20 In Canada we're a little further behind. There are fewer 21 people -- fewer pediatricians working in this field in 22 Canada. As a field, it's been around for much less time 23 in Canada, and we don't even have experts at all of the 24 academic training centres across Canada yet, although 25 it's getting closer to that.


1 So here we will -- we are -- we will be 2 following along with the States to try to develop a 3 similar subspecialty here with Board certification in 4 Canada. But that is a long term goal for us, and I -- I 5 would be actively involved in that development. 6 COMMISSIONER STEVEN GOUDGE: A long 7 term -- 8 DR. MICHELLE SHOULDICE: Well -- 9 COMMISSIONER STEVEN GOUDGE: -- what 10 would your ideal be? 11 DR. MICHELLE SHOULDICE: The ideal -- 12 DR. DIRK HUYER: Ideal? 13 DR. MICHELLE SHOULDICE: -- would be now. 14 COMMISSIONER STEVEN GOUDGE: Yesterday. 15 DR. MICHELLE SHOULDICE: The reality will 16 be, I would say at least ten (10) years. 17 COMMISSIONER STEVEN GOUDGE: Oh my 18 goodness. 19 DR. MICHELLE SHOULDICE: It's a very 20 lengthy process in order to develop the programs, and 21 then go through the process of obtaining Royal College 22 certification. 23 COMMISSIONER STEVEN GOUDGE: Okay. Is 24 there a -- is there any work being done at the Royal 25 College level about creating a subspecialty?


1 DR. MICHELLE SHOULDICE: So it will be up 2 to those of us who work clinically in the area to develop 3 the programs, and then present it to the Royal College. 4 COMMISSIONER STEVEN GOUDGE: How many of 5 you would there be across the country? Rough number. 6 DR. MICHELLE SHOULDICE: So there are -- 7 I think there are programs at ten (10) of the sixteen 8 (16) academic training centres across Canada, was last -- 9 the last I heard, which was a survey done -- 10 COMMISSIONER STEVEN GOUDGE: Fellowship 11 programs? 12 DR. MICHELLE SHOULDICE: -- a couple of 13 years. No, those are peop -- physicians -- those are 14 child abuse programs with physicians working within a 15 defined program. 16 COMMISSIONER STEVEN GOUDGE: I see. 17 Active service delivery programs. 18 DR. MICHELLE SHOULDICE: Act -- active 19 clinical programs. 20 COMMISSIONER STEVEN GOUDGE: Okay. 21 DR. MICHELLE SHOULDICE: So that's ten 22 (10) of the sixteen (16) programs -- 23 COMMISSIONER STEVEN GOUDGE: Right. 24 DR. MICHELLE SHOULDICE: -- across 25 Canada. There may be a couple more now since that survey


1 was done. 2 Child abuse fellowship training programs: 3 there are only formal programs, as far as I'm aware, at 4 the Hospital for Sick Children. I think there is one (1) 5 training program in Montreal, and there has been one (1) 6 fellow in Alberta. 7 COMMISSIONER STEVEN GOUDGE: I got the 8 sense, maybe wrongly, in the descriptions I've heard of 9 your fellowship, that it was sort of a one-off design. 10 DR. MICHELLE SHOULDICE: Mine -- mine 11 was. 12 COMMISSIONER STEVEN GOUDGE: Yeah. 13 DR. MICHELLE SHOULDICE: Since then, we 14 have formalized that fellowship. 15 COMMISSIONER STEVEN GOUDGE: And do you 16 have an annual fellow? 17 DR. MICHELLE SHOULDICE: Almost. We've 18 had almost -- a fellow almost every year since -- since I 19 trained as a fellow. 20 And in fact, there have been a couple of 21 years that we have had two (2) fellows. 22 COMMISSIONER STEVEN GOUDGE: Is there any 23 part of the general pediatric residency that's devoted to 24 forensic? 25 DR. MICHELLE SHOULDICE: So training


1 within the area of child maltreatment, we've been 2 increasingly encouraging within the pediatric training 3 program. 4 Over the last three (3) years, we've 5 managed to have all of the fourth -- the final year 6 pediatric residents who will be completing their 7 residency in general pediatrics come to us for one (1) 8 month as a mandatory rotation. That took some doing. 9 We presented a proposal for that to happen 10 back in 1998, Dr. Huyer and I, and it was not accepted 11 due to limitations in time within the training program. 12 COMMISSIONER STEVEN GOUDGE: Mm-hm. 13 DR. MICHELLE SHOULDICE: But over the 14 last, I think three (3) or four (4) years, we've had 15 residents on a regular basis, and we've increasingly 16 provided training sessions as part of the regular 17 teaching program for the residents. 18 COMMISSIONER STEVEN GOUDGE: What is the 19 demand, then, for the fellowship you have? 20 DR. MICHELLE SHOULDICE: The demand has 21 been increasing. Not all from Canadian trained 22 pediatricians. There is an enormous demand for -- from 23 fellows from abroad, but the demand has been increasing, 24 I would say. 25 COMMISSIONER STEVEN GOUDGE: Have you


1 done anything to promote it? 2 DR. MICHELLE SHOULDICE: So we -- by 3 formalizing the fellowship, it has become part of the 4 fellowships that are offered through the Division of 5 Pediatric Medicine, which are advertised quite widely 6 across the country -- 7 COMMISSIONER STEVEN GOUDGE: Mm-hm. 8 DR. MICHELLE SHOULDICE: -- to all the 9 training programs. So, yes. 10 COMMISSIONER STEVEN GOUDGE: Okay. I 11 mean, I'm asking the kind of promoting question because 12 of obvious difficulties -- 13 DR. MICHELLE SHOULDICE: Yes. 14 COMMISSIONER STEVEN GOUDGE: -- in supply 15 into forensic pathology. 16 DR. MICHELLE SHOULDICE: It -- it remains 17 a very difficult area to recruit people into, having said 18 all of that, because of some of the challenges that we've 19 discussed over the last couple of days, and some of the 20 difficulties in recruiting people -- recruiting medical 21 trained people into an area where there's a heavy 22 medicolegal component. 23 COMMISSIONER STEVEN GOUDGE: Yeah. 24 DR. MICHELLE SHOULDICE: It scares people 25 off.


1 COMMISSIONER STEVEN GOUDGE: How do you 2 get by that? 3 DR. DIRK HUYER: I think it's the 4 personality. It requires the personality to be somebody 5 who -- 6 COMMISSIONER STEVEN GOUDGE: Of the 7 leaders who are all ready in the field. 8 DR. DIRK HUYER: The leaders, but also 9 the recruiting. The fellows that I have dealt with were 10 varying in personality, and some couldn't deal with the - 11 - the issues that arise, the adversarial issues, but also 12 the emotional issues, and the -- the greyness of the -- 13 of the cases at times, so the uncertainty. 14 COMMISSIONER STEVEN GOUDGE: What I would 15 call the difficulty of the cases. 16 DR. DIRK HUYER: Absolutely. And those - 17 - many personalities cannot respond to those. So in the 18 recruiting and in the interviewing for fellowship, that 19 was something that I would explore and then would explore 20 in thinking through who would be good fellows and who 21 could deal with this particular kind of work, because 22 it's very challenging. And it's very different than con 23 -- to -- to typical medicine, as you can imagine, and -- 24 and I think understand. 25 COMMISSIONER STEVEN GOUDGE: Yes, because


1 you -- this field shares with forensic pathology this 2 challenge -- 3 DR. DIRK HUYER: Yeah. 4 COMMISSIONER STEPHEN GOUDGE: -- of 5 recruitment. 6 DR. DIRK HUYER: Well, we're -- and we're 7 even more challenging than forensic pathology because 8 pathology in and of itself has a uniqueness within 9 medicine. As pediatricians, it's not that unique, but 10 the medicolegal is very unique and it's with -- still 11 within the typical medical model. 12 So forensic pathology is outside of the 13 typical -- 14 COMMISSIONER STEPHEN GOUDGE: I see. 15 DR. DIRK HUYER: -- medical day-to-day 16 practice. 17 COMMISSIONER STEPHEN GOUDGE: As 18 laboratory medicine -- 19 DR. DIRK HUYER: Right. And we think of 20 Dr. Driver doing 75 percent of her work on day-to-day 21 pediatrics -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DIRK HUYER: -- and then doing 25 24 percent of the medicolegal work, the two (2) really -- 25 COMMISSIONER STEPHEN GOUDGE: Those are


1 two (2) different worlds? 2 DR. DIRK HUYER: Exactly. And so it's 3 even more challenging being in that day-to-day practice 4 doing this work has been my experience. There's one (1) 5 other comment that I wanted to build on as far as what's 6 going on and happening right now. 7 And I don't think you mentioned it is that 8 the Royal College has just -- just made it mandatory that 9 there's specific knowledge objectives in the area of 10 child maltreatment to be able to be board certified in 11 Canada in pediatrics now. 12 COMMISSIONER STEPHEN GOUDGE: So that 13 will require as part of every pediatric residency -- 14 DR. DIRK HUYER: Right. 15 COMMISSIONER STEPHEN GOUDGE: -- certain 16 objectives to be met on the forensic issues? 17 DR. MICHELLE SHOULDICE: That's right. 18 DR. DIRK HUYER: But again -- 19 COMMISSIONER STEPHEN GOUDGE: Is that 20 new? 21 DR. MICHELLE SHOULDICE: That's brand 22 new. 23 COMMISSIONER STEPHEN GOUDGE: That is 24 interesting. 25 DR. DIRK HUYER: And just to build on a


1 little bit of what Dr. Shouldice talked about is the fact 2 that in 1998 Dr. Shouldice and I -- well, frankly, Dr. 3 Shouldice did most of the writing, I did the promoting of 4 trying to get a specific rotation within the Hospital for 5 Sick Children four (4) year pediatric training mandated 6 to come to see us. 7 There was too many things to do. And so 8 there wasn't enough -- too many other areas of medicine 9 in pediatrics to learn -- 10 COMMISSIONER STEPHEN GOUDGE: And it's a 11 zero sum game. 12 DR. DIRK HUYER: -- and so we did not 13 have that opportunity. We were able to creatively 14 develop some things, which, as you've heard, there needs 15 to be creativeness in these fields in recruiting and in - 16 - in responding to broader issues. 17 And so we -- we developed a selective so 18 that the third year residents could choose to come to see 19 us. And we actively recruited. So we'd go out and talk 20 to people and explain things, and say, Come see us 21 because that was initially how Michelle got her interest 22 was coming and doing a month and -- and learning and 23 gaining from that. 24 And we also instituted that on a certain 25 service where consultations were required within the


1 hospital for any pediatric problem. Those con -- consult 2 team pediatric residents would be the primary consultant 3 in our cases and so would work with us. 4 So they were exposed to areas of child 5 maltreatment and some of the issues that we've talked 6 about in the testimony today and yesterday. So those are 7 some of the creative things that we've done, and 8 Michelle's -- or Dr. Shouldice -- has been able to carry 9 that forward to get a -- a mandatory rotation in fourth 10 year for some of the residents -- not all of them -- just 11 the ones that are going on to general pediatrics. 12 So those who are sub-specializing, say, in 13 cardiology -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. DIRK HUYER: -- or endocrinology 16 would not be expected to carry that forward. 17 COMMISSIONER STEPHEN GOUDGE: Okay. That 18 is helpful. Thank you. Thanks, Ms. Craig. 19 MS. ALISON CRAIG: Thank you, Mr. 20 Commissioner. Those are all my questions. 21 DR. DIRK HUYER: Thank you. 22 COMMISSIONER STEPHEN GOUDGE: Those are 23 all my questions too. 24 DR. DIRK HUYER: Are you sure? 25 COMMISSIONER STEPHEN GOUDGE: No, I --


1 sorry, if I -- 2 DR. DIRK HUYER: No, don't apologize. 3 COMMISSIONER STEPHEN GOUDGE: -- eroded 4 on your time, Ms. Craig. 5 Mr. Wardle...? 6 7 CROSS-EXAMINATION BY MR. PETER WARDLE: 8 MR. PETER WARDLE: Good morning, Doctors. 9 DR. DIRK HUYER: Good morning. 10 MR. PETER WARDLE: Good morning, Mr. 11 Commissioner. 12 COMMISSIONER STEPHEN GOUDGE: Good 13 morning, Mr. Wardle. 14 15 MR. PETER WARDLE: Doctors, my name is 16 Peter Wardle, and I act on an -- behalf of a number of 17 families and caregivers who were affected by findings 18 made by Dr. Smith. And in -- specifically for questions 19 I'm going to ask this morning, I act for the caregiver 20 and the father of the caregiver in the Amber case. 21 That's SM, as she's been known here. And 22 I also act for the caregiver in the Tyrell case. And I 23 want to start, if I may, with Justice Dunn's decision. 24 And I have some questions for you, Dr. Driver, and also 25 for Dr. Huyer. And that decision is found in Volume I,


1 Tab 44, it's PFP000118. 2 3 (BRIEF PAUSE) 4 5 MR. PETER WARDLE: And can we agree, 6 first of all, Dr. Driver and Dr. Huyer, that in this 7 decision, Justice Dunn accepted the evidence of the 8 defence experts that serious head injury could result 9 from small household falls? 10 DR. KATY DRIVER: Yes. 11 MR. PETER WARDLE: And just for your 12 reference, Commissioner, that's really found at page 37 13 of the decision we have here; it's page 36 of the 14 judgment. 15 And second, Doctors, would you agree that 16 Justice Dunn in that decision was critical of the fact 17 that the Hospital for Sick Children physicians who 18 testified, and that would include Dr. Smith, you, Dr. 19 Driver, and Dr. Barker, said it was out of their 20 experience? 21 DR. KATY DRIVER: Yes. 22 MR. PETER WARDLE: And again, that's 23 found at page 59, Commissioner, of the decision that you 24 have. So just putting those two (2) facts together, is 25 it fair to say that Justice Dunn was critical of the


1 knowledge of the Sick Kid's physicians who testified in 2 the case; the scientific knowledge that they had 3 regarding closed head injury. 4 Is that a fair summary of his conclusions? 5 DR. KATY DRIVER: I think that's a fair 6 summary. 7 MR. PETER WARDLE: All right. And I 8 understood Dr. Huyer to say yesterday, and I just want 9 you to confirm that for me, that after the fact, at -- 10 within the SCAN Team, this was considered to be a case as 11 simply one (1) where the experts disagreed, correct? 12 DR. DIRK HUYER: I can only speak from my 13 recollection as opposed to the broader SCAN program. My 14 recollection was that that's what this case was. 15 MR. PETER WARDLE: And would you agree, 16 Dr. Driver, that at the time when you got the decision 17 and you had the meeting, that's the way it was 18 characterized within the program? 19 DR. KATY DRIVER: That is correct, yeah. 20 MR. PETER WARDLE: I want to just turn 21 briefly to Marcellina Mian's notes of the meeting you 22 had, and that's at Volume I of the documents you have, at 23 Tab 53. 24 DR. DIRK HUYER: Just for clarification 25 for the record, it's Marcellina Mian.


1 MR. PETER WARDLE: I will try my hardest. 2 DR. DIRK HUYER: You can say Dr. Mian, 3 and then it will be easier for you. 4 MR. PETER WARDLE: Dr. Mian is fine. So 5 it's Volume I, Tab 53, and that is PFP153138. And Dr. 6 Driver, I'll -- I'll just ask some of these questions to 7 you, and maybe, Dr. Huyer, if you want to chime in that's 8 fine, because you were at this meeting although I 9 understand you don't have a recall today of the meeting, 10 correct? 11 DR. DIRK HUYER: No, I don't. 12 MR. PETER WARDLE: Okay. 13 DR. DIRK HUYER: But I will chime in if I 14 think it's appropriate. 15 MR. PETER WARDLE: There's -- on the 16 first page there's a -- you'll see a list of who's 17 present. It's not -- we have a more comprehensive list 18 in another document, but it appears the entire SCAN Team 19 was there, Dr. Smith, the Crown, Terri Reginbald, and two 20 (2) other Crowns, correct? 21 DR. KATY DRIVER: Yes. 22 MR. PETER WARDLE: Okay. And then you'll 23 see there's a -- someone gave a brief -- Katy Driver, I 24 guess that would be -- 25 DR. KATY DRIVER: Yes.


1 MR. PETER WARDLE: -- gave a brief 2 summary? 3 DR. KATY DRIVER: Yes. 4 MR. PETER WARDLE: TR, that would be 5 Terri Reginbald, the Crown from Timmons? 6 DR. KATY DRIVER: Yes. 7 MR. PETER WARDLE: Said: 8 "The judge was strange, Family Court 9 judge, not used to criminal standards, 10 led character evidence." 11 So I take it there was some criticism, if 12 I can put it that way, of the -- of the judge who tried 13 the case, correct? 14 DR. KATY DRIVER: I think that's how it 15 looks. 16 MR. PETER WARDLE: Okay. And then just 17 below that it says: 18 "This judgement is likely to be passed 19 around, therefore damage control." 20 And then there's a list of issues. 21 And, you know, we see record keeping, and 22 I know record keeping was one (1) of the things that 23 Justice Dunn had raised in the decision, correct? 24 DR. KATY DRIVER: That is correct. 25 MR. PETER WARDLE: Discussion about --


1 I'm not sure I can completely read this, but it appears 2 to be, "Communication"? 3 DR. KATY DRIVER: Yes. 4 DR. DIRK HUYER: Correct. 5 MR. PETER WARDLE: That communication was 6 an issue in that case, and: 7 "Consider defence position, experts 8 raised different evidence, lack of 9 documentation of interdisciplinary 10 [maybe] discussions." 11 So there's a -- there's a discussion about 12 communication, correct? 13 DR. DIRK HUYER: Correct. 14 DR. KATY DRIVER: That is correct. 15 MR. PETER WARDLE: Then if we go over to 16 the second page, and just to take you towards the bottom 17 of the page, we've got a -- a paragraph, and Ms. 18 Rothstein took you to this briefly yesterday, but I want 19 to come back to it. It says: 20 "No presidential value, re: medical 21 evidence. Family court judge at bottom 22 of heap. Error may be brought up in 23 another case. Acceptable to say we 24 disagree with judge's judgment." 25 Now just putting aside the comments about


1 Just -- Justice Dunn and whether he was a good judge or a 2 bad judge, what I read that to say is that the people who 3 were at this meeting were not really thinking about 4 Justice Dunn's conclu -- conclusions regarding the 5 science. 6 In other words, it was perfectly 7 acceptable coming out to this -- of this meeting to 8 testify in another case that we disagree with his 9 conclusions, correct? 10 DR. KATY DRIVER: Yes. 11 DR. DIRK HUYER: And I think that would 12 speak to my general recollection of the case. 13 DR. KATY DRIVER: Yes. 14 MR. PETER WARDLE: And would it be fair 15 to say that, at this time, those present in the SCAN team 16 and certainly the Crowns who participated, there wasn't 17 any mindset at that point towards changing your thinking 18 about closed head injuries as a result of this case? 19 DR. KATY DRIVER: I'm not sure that this 20 100 percent true. But certainly reading from this, the 21 appearances that we were not willing to change. 22 MR. PETER WARDLE: And then I -- I want 23 to just take you to one (1) more reference, and I'll need 24 two (2) sets of notes to do this. If you go to the next 25 page, so we have a section that starts at the top,


1 "Charles Smith". And this it says: 2 "Involved outside opinion: Our 3 standard is higher than theirs but 4 still has to be held to higher 5 standards relied on police photos." 6 Do you see that? 7 DR. KATY DRIVER: Yes. 8 MR. PETER WARDLE: And then I just want 9 to take you to another set of notes that deals with the 10 same subject matter. And this is at Volume I, Tab 50, 11 PFP153135. This is the same meeting, and I'm not sure if 12 I recall who the author of these notes are. 13 DR. DIRK HUYER: Brenda Rau, the Program 14 Coordinator. 15 MR. PETER WARDLE: Thank you. Dr. 16 Driver, if you've got those notes in front of you, -- 17 DR. KATY DRIVER: I do. 18 MR. PETER WARDLE: -- if you could turn 19 to the third page. So in the middle of the page, there's 20 a reference. And I link it to the last -- the last note 21 I read to you. And you'll see why in a moment. It says: 22 "Neuropathology involved, dumbfounded 23 by evidence from US experts. Charles 24 sought opinion from US expert, re: 25 autopsy, asked for their standard.


1 Ours is higher than theirs." 2 And I took it from -- from this that what 3 one (1) of the things that was being discussed at this 4 meeting was the fact that there had been some 5 neuropathologists testifying from the United States, and 6 that, at least, it was the -- it was the opinion of some 7 people at the meeting that standards in the United States 8 were lower than in Canada? 9 DR. KATY DRIVER: I think that's how it 10 looks. 11 MR. PETER WARDLE: All right. 12 DR. KATY DRIVER: I don't have a 13 recollection. 14 MR. PETER WARDLE: Okay. Now, can we 15 agree, looking backwards, Dr. -- Dr. Driver and Dr. 16 Huyer, that, in retrospect, the conclusions of Justice 17 Dunn should have been treated more seriously by the SCAN 18 Team after the decision was released? 19 DR. KATY DRIVER: Yes. 20 MR. PETER WARDLE: Thank you. 21 DR. DIRK HUYER: Some of the conclusions. 22 I don't think that the whole -- the whole judgment. 23 Would I accept the medical findings and the comments 24 about the approach that was undertaken by the physicians? 25 To -- to -- much of that I would agree, but there's other


1 aspects with the judgment that I wouldn't necessarily 2 agree with. 3 MR. PETER WARDLE: Fair enough, Dr. 4 Huyer, but I'm primarily interested in the science. 5 DR. DIRK HUYER: And I thought that was 6 valuable to clarify that. 7 MR. PETER WARDLE: Thank you. 8 DR. DIRK HUYER: It was my observations 9 as well. 10 MR. PETER WARDLE: And coming back to 11 this issue of difference of opinion because we've had 12 this issue occur in this Commission over and over again. 13 The issu -- you know, when do you identify a difference 14 between competing experts as opposed to something a 15 little more fundamental? Is it fair to say that Justice 16 Dunn couldn't have made it more clear that in his view 17 this was more than just a difference of opinion? 18 DR. DIRK HUYER: I think that my review 19 of the transcript -- 20 DR. KATY DRIVER: Yes. 21 DR. DIRK HUYER: -- supports that comment 22 of yours. 23 MR. PETER WARDLE: Okay. And, Dr. 24 Driver, I don't want to be -- to single you out, but you 25 were taken yesterday to the College complaint and the


1 process by one (1) of my clients to try to get the 2 doctors in the case to concede that perhaps, in 3 retrospect, their opinions could have been a little 4 different. 5 Do you recall that? 6 DR. KATY DRIVER: Yes. 7 MR. PETER WARDLE: And you were taken to 8 one (1) document in particular; it's at Volume I, Tab 69. 9 And you'll recall Ms. Rothstein asked you 10 some questions about this document, and I'm not going to 11 go through all of it again, but in the co -- course of 12 the College complaint, you and Dr. Barker were sent a 13 number of documents from the case, including some of the 14 expert's reports and the photographs, and you were asked 15 to -- to provide some comments, do you recall that? 16 DR. KATY DRIVER: Yes. 17 MR. PETER WARDLE: And if you go the 18 second page of this document, in the middle of the page, 19 you'll see it says, "After review"; this is in the third 20 paragraph starting, "I am satisfied". 21 Second sentence: 22 "After review and discussion of the 23 totality of information, both 24 physicians acknowledged evidence of 25 blunt trauma injury, but are unable to


1 establish the nature of its origin." 2 And as I piece this together, this was the 3 debate about the bruise on the forehead; the fact that 4 when you saw the child, the head was covered up with 5 bandages and you relied on certain information from Dr. 6 Smith, which, in retrospect, may not have been correct, 7 correct? 8 DR. KATY DRIVER: That is correct, yeah. 9 MR. PETER WARDLE: Can I just ask you to 10 turn quickly, then, to one (1) further letter on this 11 subject, and that's the next tab, Volume I, Tab 70. 12 Now, this is a letter you may or may not 13 have seen, Dr. Driver, because it -- it was sent to the 14 father, and -- but I'd ask you just to quickly review it. 15 Have you seen it before? 16 DR. KATY DRIVER: Only when this document 17 -- this whole file was given to me. 18 MR. PETER WARDLE: Fair enough. So 19 you'll see in the second paragraph -- I guess the third 20 paragraph -- under "Re. two (2)", this is the 21 investigator again dealing with the information he had 22 obtained from you and from Dr. Barker. 23 And it says: 24 "As I understand, at the time Amber was 25 assessed at Sick Kids, neither


1 physician was aware of the subgaleal 2 bruise, due to the fact Amber's head 3 was always covered with bandages from 4 her previous surgery in Timmins. 5 Having then viewed the photos, both 6 physicians admitted to me, as I stated 7 in my previous letter to you, that 8 there was a possibility her injuries 9 may have resulted from an insult other 10 than shaking, and if so, may possibly 11 have contributed in some way to her 12 death." 13 So I take it that one (1) of the 14 advantages from the College process was that you had an 15 opportunity to communicate, however indirectly, with the 16 family that, in retrospect, you had some thec -- second 17 thoughts about your opinion in that case, is that fair? 18 DR. KATY DRIVER: I think that is fair. 19 When the child was admitted, I think the possibility of 20 shaken baby was considered; it was one (1) of the 21 differential diagnoses. We certainly -- that was the 22 reason for wanting an autopsy; to confirm that there, 23 indeed, was evidence of blunt trauma. 24 When -- and if there had been -- if we had 25 been given the information that there was evidence of


1 blunt trauma, I don't think it would have proceeded any 2 further. 3 MR. PETER WARDLE: Okay. Now, I want to 4 move ahead, if I can, a little bit. And, Dr. Huyer, I 5 understood you to say yesterday that you agreed that this 6 case involved a misdiagnosis, correct? 7 DR. DIRK HUYER: Yes. 8 MR. PETER WARDLE: And you now would 9 characterize the case very differently. 10 DR. DIRK HUYER: Yes. 11 MR. PETER WARDLE: And you were asked 12 about your opinion today, and you gave that opinion, 13 correct? 14 DR. DIRK HUYER: Yesterday. 15 MR. PETER WARDLE: Yesterday to Ms. 16 Rothstein. 17 DR. DIRK HUYER: Yesterday and today, 18 yes. 19 MR. PETER WARDLE: And you were asked 20 about your opinion yesterday, and you gave your opinion 21 yesterday. 22 DR. DIRK HUYER: Yes. 23 MR. PETER WARDLE: And you said, as well 24 -- My Friend asked you, you know, when that opinion would 25 have changed, and you said, By the 1990's I would have


1 reached that opinion, and you said, Sort of the mid to 2 late '90's; do you recall that? 3 DR. DIRK HUYER: Yes. 4 MR. PETER WARDLE: Okay. So I took it as 5 your view, Dr. Huyer, that as the medical debate on these 6 issues, and that is the shortfall shaken baby -- that 7 whole constellation of issues -- as that continued to 8 develop, people within SCAN began to assimilate that 9 information and learn from it, correct? 10 DR. DIRK HUYER: Yeah, I'm not sure I'd 11 characterize it as the debate, but increasing knowledge 12 in evolving -- evolving field. I mean, certainly it fits 13 within, but I think that this is separate and abo -- 14 beyond Shaken Baby. This is understanding of the types 15 of forces that kids can suffer injuries from. So Shaken 16 Baby would fit within there, but it's a subtle difference 17 in characterization. 18 So it's not just the debate that brought 19 this forward. This is increasing knowledge, and 20 increasing clarity within the areas of falls, not part of 21 a controversy. This, in fact, is much more clear than 22 the controversy. 23 MR. PETER WARDLE: All right. So let's-- 24 DR. DIRK HUYER: So this out sep -- 25 separate from a Shaken Baby controversy case.


1 MR. PETER WARDLE: Correct. 2 DR. DIRK HUYER: This was misdiagnosed, 3 in my mind, as a Shaken Baby. So not controversial. 4 This is a misdiagnosis, I believe. 5 MR. PETER WARDLE: Fair enough. So lets 6 now move forward in time, and I want to take you to the 7 next case, which is ten (10) years almost to the day from 8 Amber's case, and that's Tyrell's case. 9 DR. DIRK HUYER: Yes. 10 MR. PETER WARDLE: And if we can turn 11 that up in the overview reports; it should be Volume II, 12 but I'm not sure I have the tab. 13 COMMISSIONER STEVEN GOUDGE: I think it 14 17. 15 MR. PETER WARDLE: Sorry. Tab 17. 16 DR. DIRK HUYER: Yes. Thank you, 17 Commissioner. 18 19 (BRIEF PAUSE) 20 21 CONTINUED BY MR. PETER WARDLE: 22 MR. PETER WARDLE: And I don't know, Dr. 23 Huyer, if in preparation for this week you've had a 24 chance to look at this case at all. 25 DR. DIRK HUYER: I did not spend specific


1 time looking at Tyrell, as I was not involved in any real 2 aspect of Tyrell -- 3 MR. PETER WARDLE: I Understand that. 4 DR. DIRK HUYER: -- except for proceeding 5 Justice Campbell's Decision and taking -- 6 MR. PETER WARDLE: Understand. So I'm -- 7 DR. DIRK HUYER: -- steps similar to his. 8 MR. PETER WARDLE: -- just going walk you 9 through it -- 10 DR. DIRK HUYER: Certainly. 11 MR. PETER WARDLE: -- very briefly. If 12 you look at the overview, starting at page 1 -- page 4 -- 13 DR. DIRK HUYER: Yes. 14 MR. PETER WARDLE: -- paragraph 1. 15 DR. DIRK HUYER: Yes. Page 4, paragraph 16 1. I don't -- oh, paragraph -- 17 MR. PETER WARDLE: Page 4 of the 18 electronic document. 19 DR. DIRK HUYER: And is it -- 20 COMMISSIONER STEVEN GOUDGE: Those 21 numbers on the top. 22 DR. DIRK HUYER: Thank you, Commissioner. 23 24 CONTINUED BY MR. PETER WARDLE: 25 MR. PETER WARDLE: Sometimes it's helpful


1 just -- 2 DR. DIRK HUYER: Yes. 3 MR. PETER WARDLE: -- to use paragraph 4 numbers. So -- 5 DR. DIRK HUYER: Yes. 6 MR. PETER WARDLE: -- paragraph 1, you'll 7 see that Tyrell died January 23, 1998, in Toronto. He 8 was almost 4 years old at the time of his death and there 9 were criminal proceedings that were initiated against his 10 caregiver. 11 DR. DIRK HUYER: Yes. 12 MR. PETER WARDLE: And just to take you 13 to the involvement of the SCAN team in this case; it 14 starts at page 21 of the written document, paragraph 44. 15 DR. DIRK HUYER: Yes. 16 MR. PETER WARDLE: And perhaps we can 17 even start a little bit earlier, just because none of you 18 have the background. 19 You'll see that Tyrell arrives at the 20 emerg department at Sick Kids on January 19, 1998. 21 That's at paragraph 26 and following. 22 DR. DIRK HUYER: So we're going way back 23 to twenty-six (26)? 24 MR. PETER WARDLE: Yes. 25 DR. DIRK HUYER: Okay. Okay.


1 MR. PETER WARDLE: So you'll see if you 2 go to paragraph 44, that there was a referral to SCAN, 3 and then in paragraph 47, the involvement of Dr. Mian, 4 and you'll see she -- there's a paragraph giving the 5 history that Dr. Mian had been given at the time she gets 6 involved. 7 DR. DIRK HUYER: Okay. 8 MR. PETER WARDLE: And then over the 9 page, there are some interviews of the caregiver by Dr. 10 Mian, and by a social worker with the SCAN Unit; that's 11 Ms. McLachlin. And that's -- 12 DR. DIRK HUYER: I take it you'll 13 recognize that I'm merely briefly looking at that word -- 14 that name in the paragraph, and recognizing that I'm 15 certainly not digesting these paragraphs -- 16 MR. PETER WARDLE: No, I'm -- 17 DR. DIRK HUYER: -- in the timeframe that 18 you're jumping too. 19 MR. PETER WARDLE: -- that -- that's fair 20 enough, and I'm -- 21 DR. DIRK HUYER: Just so that you're -- 22 I'm not quite that good at speed reading, but -- 23 MR. PETER WARDLE: I'm -- 24 DR. DIRK HUYER: -- just so that we're on 25 the same page here.


1 MR. PETER WARDLE: That -- that's fair 2 enough. So -- 3 DR. DIRK HUYER: So what paragraph did 4 you take me now? 5 MR. PETER WARDLE: I'm taking you to the 6 paragraphs that start at paragraph 49, "Interview of 7 Maureen by the SCAN Team". 8 DR. DIRK HUYER: Okay. 9 MR. PETER WARDLE: And then you'll see 10 there's an explanation provided by the caregiver, and 11 that's summarized a little further on at paragraph 54, 12 and following. 13 DR. DIRK HUYER: Yes. 14 MR. PETER WARDLE: Now I want to go 15 forward, if I can, after Tyrell's death. If we go 16 forward to paragraph 93. 17 DR. DIRK HUYER: Yes. 18 MR. PETER WARDLE: So this is an opinion 19 provided by Dr. Mian to the Children's Aid Society? 20 DR. DIRK HUYER: Okay. 21 MR. PETER WARDLE: And it might be 22 helpful if we just actually got the document on the 23 screen. This is a summary of the document. It might be 24 better to look at the actual letter. It's PFP012320. 25 So you'll see that now, Dr. Huyer, on the


1 screen. 2 DR. DIRK HUYER: Yes. 3 MR. PETER WARDLE: And you'll see if you 4 start at the first paragraph it -- it describes the 5 events that lead to Tyrell arriving Sick Kids. And 6 you'll see in the first paragraph it says: 7 "The caregiver reported that Tyrell had 8 had a fall the previous day." 9 Starts into the medical information. 10 DR. DIRK HUYER: Yes. 11 MR. PETER WARDLE: And if we could turn 12 over to page 2, there's a psychosocial history. 13 DR. DIRK HUYER: Yes. 14 MR. PETER WARDLE: And then you'll see 15 there's a history with respect to the injury about four 16 (4) paragraphs into that section of the report. It 17 starts, "With regard to the child's injury." And I'll 18 just read that paragraph. 19 "With regard to the child's injury, the 20 history given by Maureen, the caregiver, 21 was that the previous evening this 22 perfectly healthy three (3) year old had 23 fallen after jumping off a couch backwards 24 and losing his footing and banged his head 25 on a marble coffee table or tile floor.


1 He then rose and fell forward striking his 2 head. Maureen added that she went to help 3 the child, and he fell forward onto the 4 floor again. He cried but was otherwise 5 well initially. However, he was found 6 unresponsive at about 4:00 a.m." 7 And then if you go down to the paragraph 8 summary and conclusion. 9 DR. DIRK HUYER: Yes. 10 MR. PETER WARDLE: And -- and 11 remembering, Doctors, all of you, that Dr. Mian is not 12 here, and none of you authored this report. 13 DR. DIRK HUYER: Okay. 14 MR. PETER WARDLE: But you'll see the 15 point I want to get to in a moment. 16 "Summary and conclusion: This three 17 (3) year old suffered a severe closed 18 head injury that lead to his death. 19 This injury was not consistent with the 20 history of trivial trauma available and 21 most consistent with the severe shaking 22 episode, likely with associated impact 23 trauma in light of the froma -- 24 forehead hematoma." 25 And so my question is, you know, Dr. Mian


1 was present, as I understand it, at the -- at the post- 2 mortem of Amber's case. 3 DR. DIRK HUYER: At the -- at the case 4 discussion, I'm presuming that you -- 5 DR. KATY DRIVER: The case discussion. 6 MR. PETER WARDLE: I'm sorry, the case 7 discussion. 8 DR. DIRK HUYER: I don't think she was at 9 the autopsy. 10 DR. KATY DRIVER: None of us were 11 present. 12 MR. PETER WARDLE: I'm sorry. Back up. 13 The SCAN team meeting after Amber's case, -- 14 DR. DIRK HUYER: Yes. 15 MR. PETER WARDLE: -- was Dr. Mian 16 present at that? 17 DR. KATY DRIVER: Yes. 18 DR. DIRK HUYER: Yes. 19 COMMISSIONER STEPHEN GOUDGE: The SCAN 20 team's post-mortem? 21 MR. PETER WARDLE: The SCAN team's post- 22 mortem. 23 DR. DIRK HUYER: I hope not. 24 25 CONTINUED BY MR. PETER WARDLE:


1 MR. PETER WARDLE: Now, we're ten (10) 2 years later, -- 3 DR. DIRK HUYER: Yes. 4 MR. PETER WARDLE: -- and we have a case 5 with a short fall, right? And we have ten (10) years of 6 developments in the literature, and Dr. Mian -- doesn't 7 take her very long to sweep that explanation away. 8 And I guess what I'm asking is ten (10) 9 years after the case, you know -- seven (7) years after 10 the release of Justice Dunn's decision, has the SCAN Team 11 learned anything from Amber's case?? 12 DR. DIRK HUYER: Well, I can't speak for 13 Dr. Mian. And clearly people and professionals and 14 experts within the field have difference of opinions. 15 And what you've done with me today, I think, took one (1) 16 of the international reviewers probably a week to do, and 17 so if you gave me the week to review this case I could 18 provide you a more wholesome opinion. I'm -- I'm 19 reticent to give you any more of an opinion at this 20 point, given the limited information that you've drawn me 21 to and the very rapidity that I've gone through this case 22 with you. 23 So I can't speak about Mr. Mian and her 24 opinion on this. I can speak to the fact as I did 25 yesterday in my testimony about the fact that in my


1 belief, mid-'90s and certainly late '90s, falls and 2 direct trauma were significant considerations in how a 3 head injury could occur. 4 I can't speak further than that, at this 5 time. 6 MR. PETER WARDLE: Well, but -- but 7 listen, Dr. Huyer, I'm not trying to pin the tail on the 8 donkey on you, because you didn't author an opinion in 9 this case. 10 DR. DIRK HUYER: Right. 11 MR. PETER WARDLE: But I'm acting -- 12 asking about the program that you were the Director of, 13 correct? 14 DR. DIRK HUYER: I was the Director as of 15 July 1998. 16 MR. PETER WARDLE: Right. 17 DR. DIRK HUYER: Yeah. 18 MR. PETER WARDLE: And I'm asking about 19 the program that Dr. Shouldice is now the Director of. 20 DR. DIRK HUYER: Yeah. 21 MR. PETER WARDLE: And the question is a 22 very simple one: Ten (10) years after Amber's death, 23 seven (7) years after Justice Dunn's decision, had the 24 SCAN Team learned any of the lessons about the science, 25 that were outlined in Justice Dunn's decision?


1 That's not a difficult question to answer, 2 Dr. Huyer, -- 3 DR. DIRK HUYER: First of all -- 4 MR. PETER WARDLE: -- with respect. 5 DR. DIRK HUYER: With respect in return, 6 Justice Dunn didn't outline significant issues with the 7 respect to the SCAN program. There was minimal comments 8 about recommendations and how to move forwards. 9 What he commented in his judgment, as 10 we've talked about before, is that he accepted the 11 defence findings, and did not accept the -- the findings 12 that were put forward by the prosecution, as I interpret 13 it. And I agree with those findings. 14 However, the specifics of an individual 15 case in the general belief and understanding of how fall 16 analysis has -- has occurred, it's far more complex, and 17 stating it categorically as you did earlier, or 18 characterizing this as Dr. Mian rapidly came to that 19 conclusion, I don't think we know that, nd I don't think 20 you can make that presumption. She may have had lots of 21 conversations with various different professionals 22 including the SCAN program team members. 23 I don't know and I don't remember, because 24 I haven't had the opportunity to look through this case 25 in any great detail.


1 So I think that you're over simplifying 2 it, is what I think you're doing. And with respect, I'm 3 saying that. 4 The -- I -- I think that you could -- this 5 could be a single case, or it could be a representative 6 of Dr. Mian's opinion generally on that area. I don't 7 believe that's the case. I do believe that we frequently 8 -- and I recall directly, thinking about falls and how 9 head injuries can occur from falls, there still is 10 ongoing controversy now about the height or the distance 11 or the significance of a fall, about how severe a head 12 injury could result from that. That is an area of 13 controversy. 14 This has a number of aspects that could 15 add confusion to it. There's a timeframe after the 16 injury until the child was brought to Hospital, so that 17 could have contributed to the severity of injury, 18 similarly to what occurred in the Amber Case. 19 So the fall occurred at eleven o'clock, it 20 was 4:00 in the morning before -- and 5:00 in the morning 21 before the child was brought to medical attention, that 22 could contribute. 23 The purported mechanism could involve a -- 24 varying degrees of severity, given the developmental 25 ability of the child and how much force he could generate


1 from that motion of his own -- jumping -- and how much 2 did that contribute. 3 So there's various variables that would 4 require further careful evaluation by myself to give you 5 a better answer to this case -- 6 MR. PETER WARDLE: I mean, I'm not 7 suggesting, Dr. Huyer, for a moment, that this isn't a 8 complex issue. 9 DR. DIRK HUYER: Right. 10 MR. PETER WARDLE: I'm -- I'm well aware 11 that it's a complex issue, but the point I'm making is 12 very simple. In 1988, in Timmons, Dr. Smith, Dr. Barker, 13 Dr. Driver, went up to Court, told the judge certain 14 things about a case, about short falls not being able to 15 cause those kinds of injuries, that turned out to be 16 wrong in retrospect. 17 DR. DIRK HUYER: Yes. 18 MR. PETER WARDLE: Ten (10) years later, 19 same people, Dr. Smith, Dr. Mian are involved in this 20 case, somewhat similar features, caregiver giving an 21 explanation of a short fall, and again it appears, in 22 retrospect, that they were wrong and it's -- it's of 23 concern. It has to be of concern to this Commission 24 whether or not the SCAN Team appreciated the lessons that 25 Justice Dunn drew from Amber's Case.


1 DR. DIRK HUYER: And not to reiterate, 2 but I don't think there were specific lessons that he 3 laid out in that case. The diagnosis was incorrect, I 4 recognize that. There are some similarities as far as 5 the mechanism of injury, the medicals findings as I've 6 briefly read are not the same exact medical finding. 7 This is not a uni-lateral significant space occupying 8 lesion where it's a black and white diagnosis, I believe 9 at this state. 10 And I can only answer to you repetitively 11 that yes, I believe, we at the SCAN program, specifically 12 myself and others that were working there recognize that 13 small falls, short falls could be fatal. 14 I can tell you that, you can choose to 15 believe that or not believe that, based upon one (1) case 16 that your ari -- you're bringing forward, or not, and I 17 can't convince you any differently than that, but tell 18 you the facts as I recall them, and -- and the belief 19 that I have. 20 MR. PETER WARDLE: Mr. Commissioner, this 21 might be an appropriate time to take the morning break. 22 COMMISSIONER STEPHEN GOUDGE: Sure. You 23 have, I think about fifteen (15) more minutes, Mr. 24 Wardle. 25 MR. PETER WARDLE: Yes, sir.


1 COMMISSIONER STEVEN GOUDGE: So we'll 2 come back at 11:30. 3 4 --- Upon recessing at 11:11 a.m. 5 --- Upon resuming at 11:30 a.m. 6 7 THE REGISTRAR: All rise. Please be 8 seated. 9 COMMISSIONER STEVEN GOUDGE: Mr. Wardle, 10 we have picked up a little time, and I am optimistic we 11 will pick up a little more time this afternoon, so you 12 have got twenty-five (25) more minutes if you need it. 13 MR. PETER WARDLE: Thank you very much, 14 sir. 15 16 CONTINUED BY MR. PETER WARDLE: 17 MR. PETER WARDLE: Dr. Shouldice, the 18 next questions I want to ask, I want to direct to you, 19 and I want to go away a little bit from the shortfall 20 issue we've been discussing, and just talk a little bit 21 more generally about Shaken Baby Syndrome. 22 DR. MICHELLE SHOULDICE: Yes. 23 MR. PETER WARDLE: And you gave us 24 yesterday an outline of what steps you would take within 25 the unit today in dealing with a suspected shaken baby


1 case. Do you recall that? 2 DR. MICHELLE SHOULDICE: Yes. 3 MR. PETER WARDLE: And what I heard you 4 say, and you can help me with this if I've got this 5 right, is that in a case where there was significant 6 suspicion; first of all, SCAN wouldn't take the history 7 directly from the patient, but would -- or the patient's 8 -- sorry, the patient's family, but would review the 9 chart, and get the information from others who'd been 10 involved in the primary care, correct? 11 DR. MICHELLE SHOULDICE: We wouldn't 12 initially take the history. We may, at some point, have 13 contact with parents or caregivers at a later time after 14 the initial investigative interviews have been completed. 15 MR. PETER WARDLE: And you would -- you 16 would do a physical examination of the child? 17 DR. MICHELLE SHOULDICE: Yes. 18 MR. PETER WARDLE: You would review tests 19 done by the treating physicians? 20 DR. MICHELLE SHOULDICE: Yes. 21 MR. PETER WARDLE: You would do 22 consultations in certain cases, for example, with 23 neurosurgery? 24 DR. MICHELLE SHOULDICE: Yes. 25 MR. PETER WARDLE: And probably


1 radiology? 2 DR. MICHELLE SHOULDICE: Yes. 3 MR. PETER WARDLE: And other specialties 4 within the hospital -- 5 DR. MICHELLE SHOULDICE: Yes. 6 MR. PETER WARDLE: -- if necessary? 7 DR. MICHELLE SHOULDICE: Yes. 8 MR. PETER WARDLE: And at some stage, if 9 there was still significant suspicions, Children's Aid 10 would be notified? 11 DR. MICHELLE SHOULDICE: Fairly 12 immediately, Children's Aid would be notified, yes. 13 MR. PETER WARDLE: Fair enough. And then 14 I think you told us that it -- there would be -- at some 15 point in the process, once Children's Aid was involved, 16 there would be feedback, and you would have an 17 opportunity to consider accidental explanations that 18 might be given by the family or by the caregiver, 19 correct? 20 DR. MICHELLE SHOULDICE: That should be 21 what happens, yes. 22 MR. PETER WARDLE: All right. And one 23 (1) of the things I wasn't quite clear on; the diagnosis. 24 And I'm not even sure it's a diagnosis, but the label of 25 Shaken Baby Syndrome.


1 Is it your unit that would be responsible 2 for making that call? 3 DR. MICHELLE SHOULDICE: It would be -- 4 yes and no. 5 First of all, we're using abusive head 6 trauma as the term more generally now because of some of 7 the controversies in the field. 8 COMMISSIONER STEVEN GOUDGE: Abusive head 9 trauma? 10 DR. MICHELLE SHOULDICE: Abusive head 11 trauma, or inflicted brain injury. Either of those two 12 (2) terms. 13 In terms of the degree, or the suspicion 14 of abusive head trauma, it would be primarily our team 15 who would be involved in -- in providing an opinion in 16 that area. 17 However, others within the hospital -- 18 other services within the hospital may also be part of, 19 or make that diagnosis; for example, the neurosurgeons or 20 the Intensive Care Unit physicians or the opthamologists; 21 based on their part in the case. 22 23 24 CONTINUED BY MR. PETER WARDLE: 25 MR. PETER WARDLE: And is there any


1 protocol or written procedure that's used at the hospital 2 in making the diagnosis? By your team, or by anyone 3 else. 4 DR. MICHELLE SHOULDICE: No. 5 MR. PETER WARDLE: Okay. I want to just 6 show you a -- a document -- 7 COMMISSIONER STEVEN GOUDGE: Can I just 8 ask, Mr. Wardle? When did you change the terminology, 9 Dr. Shouldice, from SBS to -- 10 DR. MICHELLE SHOULDICE: Within the last 11 five (5) years, I would say. 12 Shaken Baby Syndrome itself may appear 13 somewhere in our reports still, depending on the type of 14 findings that had occurred, but the final diagnosis won't 15 read Shaken Baby Syndrome any longer. 16 COMMISSIONER STEVEN GOUDGE: Right. 17 DR. MICHELLE SHOULDICE: And I would say 18 within the fat -- last five (5) years. 19 COMMISSIONER STEVEN GOUDGE: Both you, 20 Dr. Driver, and you, Dr. Huyer, sound like you agree with 21 that. 22 DR. KATY DRIVER: Yeah. 23 DR. DIRK HUYER: I was starting to move 24 that way, and -- in -- in my later days with SCAN, so. 25 COMMISSIONER STEVEN GOUDGE: Does that


1 reflect a general move in the literature, or -- 2 DR. DIRK HUYER: I think that that's 3 generally fair. So I'm not -- not -- 4 COMMISSIONER STEVEN GOUDGE: I mean, a 5 terminological move. 6 DR. MICHELLE SHOULDICE: Yes, I would say 7 so. 8 DR. DIRK HUYER: Both of us are kind of 9 going, yes. 10 COMMISSIONER STEVEN GOUDGE: Yeah. 11 DR. DIRK HUYER: So generally speaking, 12 but not uniformly and -- 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 DR. DIRK HUYER: -- and I think -- 15 COMMISSIONER STEPHEN GOUDGE: All right. 16 DR. DIRK HUYER: -- that there's been so 17 many different terms used over the years, it's been 18 somewhat confusing. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. DIRK HUYER: And even with respect to 21 thinking about our terminol -- our discussions yesterday, 22 as far as the name of the program, the Suspected Child 23 Abuse and Neglect Program, now we're on a mu -- abusive 24 head trauma, so, in fact, does that pre-decide a criminal 25 or a -- or a Civil Court finding -- I mean a Family Court


1 finding by the fact that that's the terminology, so I 2 think even that terminology has its own problems. 3 COMMISSIONER STEPHEN GOUDGE: Right. The 4 English Court of Appeal used non-accidental head injury. 5 DR. DIRK HUYER: Which would be the same 6 sort of thing. 7 COMMISSIONER STEPHEN GOUDGE: Yes. 8 DR. DIRK HUYER: You're still at -- 9 making a diagnosis that may be best left to the Courts to 10 make a decision. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 12 Wardle. 13 14 CONTINUED BY MR. PETER WARDLE: 15 MR. PETER WARDLE: So just to take you to 16 a couple of documents in the -- in Volume IV. First of 17 all, at Tab 38, and I won't refer to this in any detail, 18 but PFP094981 is the original Duhaime study, which I take 19 it all of you are now familiar with, correct? 20 DR. MICHELLE SHOULDICE: Yes. 21 DR. DIRK HUYER: Yes. 22 MR. PETER WARDLE: And then I want to go 23 to another document that Dr. Duhaime was involved in, and 24 this is at Volume IV, Tab 44, PFP114926. And this a, as 25 I understand it, a fairly large study that was conducted


1 by several US hospitals, and Dr. Duhaime was one (1) of 2 the participants in the study, and I -- I don't know if 3 you're -- Dr. Shouldice, are you familiar with this 4 particular study? 5 DR. MICHELLE SHOULDICE: Yes. 6 MR. PETER WARDLE: And I'm not so 7 interested in the study results as the methodology, and 8 you'll see if you turn to page 2, As I understand it, 9 one (1) of Dr. Duhaime's contribution to the research was 10 to add the biomechanical perspective, if I can put it 11 that way, is that correct? 12 DR. MICHELLE SHOULDICE: I think that's 13 fair to some extent. 14 DR. DIRK HUYER: I'm not sure I'd -- if 15 you look at the previous article that you referred to -- 16 what tab was that? 17 MR. PETER WARDLE: It was Tab 38. 18 DR. DIRK HUYER: Tab -- I think she was 19 one (1) of the authors that was trying and -- and 20 Gennarelli would be more, and Thibault, would be more of 21 the biomechanical people, and so they probably -- but the 22 article itself in -- in answer would be "yes", because 23 this was where the biomechanical and the research models 24 were initially designed as in a first attempt to try to 25 answer some of these questions.


1 MR. PETER WARDLE: Correct. So just 2 again looking at the second article at Tab 44, first of 3 all, one (1) of -- one (1) of the things I found kind of 4 interesting, Dr. Shouldice, was that for this study there 5 was a biomechanical profile that was used at the time of 6 admission into the hospital or upon entry into the study, 7 and you'll see that at the second page of the article; 8 there's a -- there's a summary of it, and there's a 9 questionnaire. 10 And is anything like that, as far as you 11 know, used in any Canadian hospital in connection with 12 suspected shaken baby cases? 13 DR. MICHELLE SHOULDICE: So this would 14 have been developed, I think, specifically for the 15 research study -- 16 MR. PETER WARDLE: Correct. 17 DR. MICHELLE SHOULDICE: -- in order to - 18 - in order to ensure that the same information is 19 collected in every case. 20 MR. PETER WARDLE: Correct. 21 DR. MICHELLE SHOULDICE: And these would 22 be specific points that were chosen as relevant to this 23 particular research study, so we don't use this 24 particular -- this exact biomechanical profile. 25 MR. PETER WARDLE: Do you -- do you use


1 any kind of biomechanical profile when you're looking at 2 a suspected shaken baby case? I'm not so interested in 3 the specifics of this, but just the idea that for -- and 4 I know this was done for a study, not for clinical work, 5 but just the idea that you might, as part of, you know, 6 taking the history, get this kind of information, is that 7 done at any Canadian hospital? 8 DR. MICHELLE SHOULDICE: So I don't know 9 of a specific outlined series of steps like this one (1) 10 here, but certainly reading through this quickly, the 11 elements that are within here would be the typical types 12 of information that we would seek out, so it would be our 13 practice, although not outlined specifically in a series 14 of steps. 15 MR. PETER WARDLE: And -- and what do you 16 rely on in tor -- in considering biomechanical issues, if 17 I can put it that way, and when you're looking at one (1) 18 of these cases? Where do you get that information? Do 19 you get it from the literature? Do you get it from other 20 people at the hospital? Where do you -- where does that 21 come into play? 22 DR. MICHELLE SHOULDICE: I'm not sure 23 what you mean by biochem -- "biomechanical" information. 24 MR. PETER WARDLE: Well, I'm talking 25 about -- going back to the first Duhaime study, you know


1 -- if you look at the third page of the study. 2 DR. DIRK HUYER: What tab was that again? 3 MR. PETER WARDLE: Really talking about 4 forces and how they impact with the child's head. 5 DR. MICHELLE SHOULDICE: Sorry, which tab 6 was that? 7 MR. PETER WARDLE: I'm at -- 8 DR. MICHELLE SHOULDICE: 38, 9 MR. PETER WARDLE: -- it's at Tab 38. 10 DR. MICHELLE SHOULDICE: Mm-hm. So are 11 you ask -- 12 MR. PETER WARDLE: So see in -- in that 13 study, as I understand it, the authors of the first study 14 had -- had done some biomechanical studies using dummies 15 to -- 16 DR. MICHELLE SHOULDICE: Yes. 17 MR. PETER WARDLE: -- determine the -- 18 the amount of force that could be applied to a baby's 19 head to establish shaking? 20 DR. MICHELLE SHOULDICE: Right. 21 MR. PETER WARDLE: Right. And going 22 forward and looking at this study -- the one we're 23 looking at now -- the authors obviously thought that some 24 kind of a -- what they call a biomechanical profile would 25 be useful. And I was just asking a more general


1 question, which is, you know, when you get one (1) of 2 these cases -- comes into your hospital or another 3 Canadian hospital, you know, do you consider these kinds 4 of issues and how do you consider it? 5 Who do you go to for that kind of 6 information? Is it just looking at the literature? Is 7 there somebody at Sick Kids who knows all about these 8 issues? How do you do it? 9 DR. MICHELLE SHOULDICE: So just to again 10 try to be clear, this biomechanical profile that you're 11 speaking of is specifically a series of information which 12 is collected in a case with respect to the -- to the 13 history that's been provided. It's not a way of 14 analysing the case. And I -- I -- 15 MR. PETER WARDLE: I understand that. 16 DR. MICHELLE SHOULDICE: So they -- with 17 respect to the questions on the history that are provided 18 and where -- what's the background that allows us to know 19 what questions to ask, that would be knowledge of the 20 literature in the area. With respect to how best to 21 analyse those, -- 22 MR. PETER WARDLE: Yes. 23 DR. MICHELLE SHOULDICE: -- that would 24 also be familiarity with general pediatrics, with 25 injuries in general, so clinical experience, information


1 that's available in the literature, consultation with 2 other specialists, all of that comes into play in sort of 3 formulating how best to analyse that information. 4 MR. PETER WARDLE: Okay. 5 DR. MICHELLE SHOULDICE: I'm not sure if 6 that answers your question or not? 7 MR. PETER WARDLE: It helps a little bit. 8 Let me just go a little further in this. One (1) of the 9 things I also found interesting in this particular study 10 is there's an algorithm set out. And you'll see -- if 11 you just follow on the second page of the document at 12 page 180. 13 It describes at the bottom of the first 14 column, an algorithm which had been developed by the 15 authors. And then the algorithm is actually in the 16 diagram on the right-hand side. And again without 17 debating whether this algorithm works or it doesn't work 18 or is the best kind of thing, is that a kind of a useful 19 tool that could be developed? 20 And has anyone in Canada been using 21 something like this? 22 DR. MICHELLE SHOULDICE: As far as I 23 know, there's no algorithm specifically that's in current 24 clinical use in Canada. As far as I'm aware. 25 MR. PETER WARDLE: Have you seen anything


1 like this in use anywhere else in North America? 2 DR. MICHELLE SHOULDICE: For use 3 clinically, not that I'm aware of. 4 MR. PETER WARDLE: And -- 5 DR. MICHELLE SHOULDICE: There -- but the 6 series, I think, of steps that are being discussed in 7 this particular algorithm, are the steps that I think I 8 described earlier that we go through in trying to come to 9 a formulation in any particular case. 10 MR. PETER WARDLE: I guess what I'm 11 wondering is in -- you know, in a clinical setting you 12 have a case -- comes in and these are very complex 13 cases, -- 14 DR. MICHELLE SHOULDICE: Yes. 15 MR. PETER WARDLE: -- you know, is there 16 any standard protocol in writing to follow or does 17 everybody do it slightly differently? 18 DR. MICHELLE SHOULDICE: There is no 19 standard protocol in writing, and I think that all of us 20 go through the same types of steps with respect to the 21 type of information we look at and the types of 22 considerations that we make of each particular medical 23 finding. 24 So I think the general process is very 25 similar amongst us all, but there is no written protocol.


1 MR. PETER WARDLE: Okay. And I just want 2 to ask some questions about research in this area; Shaken 3 Baby Syndrome. 4 DR. MICHELLE SHOULDICE: Yes. 5 MR. PETER WARDLE: And first of all, I 6 wanted to start with pathology, which is obviously not 7 the speciality of any of the three (3) of you. But -- 8 and I want to go back to the 1990s. We have in the 9 material -- and I'm just going to point to it without 10 asking any questions about it. 11 But if you look at Volume IV, Tab 37. 12 This is PFP095522. This is, as I understand it, the only 13 peer-reviewed study involving Shaken Baby Syndrome in 14 which Dr. Smith was a co-author. And the reason I say 15 that is -- is because of information that's come out 16 through his CV, which we have in the database. 17 And perhaps, Dr. Huyer, you can answer 18 this question. Do you know if one (1) of Dr. Smith's 19 research interests was Shaken Baby Syndrome? 20 DR. DIRK HUYER: It was my understanding 21 that that was an area that he had interest in. 22 MR. PETER WARDLE: All right. And do you 23 know if anyone else at the hospital during the '90s in 24 the pathology department, first of all, was doing 25 research into Shaken Baby Syndrome?


1 DR. DIRK HUYER: No, I don't know. 2 MR. PETER WARDLE: Okay. And do you know 3 if anyone today at Sick Kids, in the pathology 4 department, is doing research into Shaken Baby Syndrome? 5 Do any of you know the answer to that question? 6 DR. MICHELLE SHOULDICE: There are a 7 couple of research proposals I know of that had been put 8 forward for Ethics Board review that involved -- that 9 involved a pathologist as one (1) of the investigators 10 that are relevant to Shaken Baby Syndrome, yes. 11 MR. PETER WARDLE: Now, just thinking 12 more broadly about the hospital as a whole, and including 13 clinicians, has there been anyone else doing primary 14 research at the hospital into Shaken Baby Syndrome, in 15 the period from 1990 to the present, as far as any of you 16 are aware of? 17 DR. DIRK HUYER: Dr. -- Dr. Mian 18 participated in a Canadian-wide study. I think the lead 19 author was Dr. King, if I recall correct, based out of 20 Ottawa. And I had recollection that she had made 21 attempts to be involved in another study, but I -- I 22 can't characterize that one. 23 MR. PETER WARDLE: Okay. And -- and I 24 did have a brief discussion with you, Dr. Shouldice, at 25 the -- about the King study at the break.


1 DR. MICHELLE SHOULDICE: Yes. 2 MR. PETER WARDLE: And without getting 3 into the document, because I found it late last night and 4 my efforts to put it into evidence this morning would 5 undoubtedly be unsuccessful, but that -- that document -- 6 that study was a study done by a large group of 7 researchers from a number of hospitals across Canada, 8 correct? 9 DR. MICHELLE SHOULDICE: Yes. 10 MR. PETER WARDLE: And it appears to have 11 been published in 2003? 12 DR. MICHELLE SHOULDICE: That's my 13 recollection. 14 MR. PETER WARDLE: Okay. And it was -- 15 I'll just read the title, so that we at least have it in 16 the record. It's called, "Shaken Baby Syndrome in 17 Canada: Clinical Characteristics and Outcomes of Hospital 18 Cases". 19 And my reading of it was it was an 20 analysis of the statistics that had been gathered from 21 the various hospitals that participated, correct? 22 DR. MICHELLE SHOULDICE: Yes. 23 MR. PETER WARDLE: Okay. So -- 24 DR. DIRK HUYER: And just to add to it. 25 There were a number -- at least two (2) studies that --


1 that were looking at, the eye findings in Shaken Baby 2 Syndrome with the ophthamology department being lead 3 authors of those. One (1) published in 2002 and another 4 one published in 2003. The lead -- number 1 author was 5 the last name of Morad, M-O-R-A-D, and I was a 6 contributor in both of those articles -- 7 MR. PETER WARDLE: All right. 8 DR. DIRK HUYER: -- as well. 9 MR. PETER WARDLE: And -- and were there 10 participants from Sick Kids, aside from -- I'm not sure 11 if you were at Sick Kids at that point, but were there 12 contributors from Sick Kids in -- 13 DR. DIRK HUYER: They were all Sick Kids. 14 MR. PETER WARDLE: All right. So there 15 has been some primary research done by the ophthalmology 16 department at Sick Kids? 17 DR. MICHELLE SHOULDICE: Yes. 18 MR. PETER WARDLE: Okay. 19 DR. MICHELLE SHOULDICE: And there 20 continues to be. 21 MR. PETER WARDLE: And aside from that, 22 are you aware of any other specialties within Sick Kids 23 that are doing ongoing research into Shaken Baby 24 Syndrome? 25 DR. MICHELLE SHOULDICE: So again there


1 is a research proposal which is going forward shortly 2 from the Intensive Care Unit in the area of abusive head 3 trauma. 4 I've been involved in a clinical research 5 study looking at the results of testing for rare bleeding 6 disorders in cases of suspected abusive head trauma. 7 There's certainly significant ongoing 8 research by Dr. Alex Levin in the area of retinal 9 hemorrhages and their significance, as well as models, 10 animal and other types of models, for abusive head 11 trauma. 12 There -- and then the radiology 13 department, I think has also been trying to put together 14 some proposals for research studies relevant to radiology 15 findings in the area. 16 MR. PETER WARDLE: So just talking about 17 some recent developments, we heard evidence from Dr. 18 Whitwell, and from Dr. Pollanen, about a series of papers 19 called The Geddes -- Geddes, or Geddes/Whitwell. 20 Are you familiar with those papers? 21 DR. MICHELLE SHOULDICE: Yes. 22 MR. PETER WARDLE: And I -- I gather that 23 those papers were fairly revolutionary when they 24 appeared. 25 Is that -- is that fair to say that?


1 DR. MICHELLE SHOULDICE: Revolutionary is 2 an interesting word. I think they raised interesting 3 ideas in the area and I've con -- 4 MR. PETER WARDLE: Revolutionary is 5 probably not a good word; I could think of a better one. 6 DR. MICHELLE SHOULDICE: -- and can 7 contribute -- I think have contributed to some of the 8 controversies and some of the developments in the -- in 9 the area. 10 MR. PETER WARDLE: All right. 11 DR. MICHELLE SHOULDICE: Yes. 12 MR. PETER WARDLE: So, how do we ensure 13 that those involved in a clinical basis in these cases 14 are up-to-date and, you know, familiar with the latest 15 developments in the literature. Because, you know, going 16 back to Amber's case, one (1) of the -- one of the things 17 that could be said about the physicians from Sick Kids 18 who testified in that case is that they maybe were not 19 up-to-date on current findings like the Duhaime study. 20 So coming forward to today, and I'm -- and 21 I'm not really singling out even your hospital, how do we 22 make sure that clinicians are aware of these debates in 23 the literature and are taking them into account? 24 DR. MICHELLE SHOULDICE: I mean, I don't 25 think this is unique to this area of medicine.


1 MR. PETER WARDLE: Of course not. 2 DR. MICHELLE SHOULDICE: And we have 3 expectations from our college of continuing education for 4 that specific purpose. So that would be one (1) way in 5 which there's some formal documentation that you have to 6 provide in -- in order to maintain certification; that's 7 a general sort of out -- mechanism. 8 I think increasingly we, in our field, 9 have recognised the importance of peer review and of -- 10 of case consultation and ensuring that -- that there is 11 good communication between the different types of 12 specialties involved in -- in particular cases, and that 13 facilitates ongoing discussion of new developments and 14 how they may be differently interpreted by different 15 areas. 16 But I think formalising peer review is -- 17 is a very good way to ensure that there is discussion of 18 ongoing developments. We -- we have an expectation that 19 those practising in the field are discussing current 20 papers through a journal -- what we call "journal clubs" 21 where -- 22 MR. PETER WARDLE: Mm-hm. 23 DR. MICHELLE SHOULDICE: -- on a regular 24 monthly basis we would bring articles forward for review 25 and discussion, so that's another mechanism.


1 And then there is an expectation, for 2 example, amongst our program that all of us participate 3 in conferences in the area where current developments are 4 discussed, and that we do so on a regular basis. 5 MR. PETER WARDLE: The last question for 6 you, Dr. Shouldice. We -- we've heard evidence from Dr. 7 Pollanen that there -- there may be cases out there in 8 which there was a fatality and there was a finding of 9 Shaken Baby Syndrome that came up in a criminally spe -- 10 suspicious case, either a criminal case or in a child 11 protection case, that, you know, as -- as yet -- is as 12 yet undiscovered and there may be a need to go back and 13 review those cases. 14 Has the hospital considered, in light of 15 all the controversy about this area over the last ten 16 (10), fifteen (15) years, whether there's some need to go 17 back and look at cases where there was not a fatality, 18 but there may have been a finding or an opinion given by 19 someone at SCAN on a Shaken Baby case that may have been 20 used in a criminal case or a child protection case? 21 DR. MICHELLE SHOULDICE: So I think, you 22 know, this issue of evolving medical information and the 23 implications it has for anything that's done clinically 24 is not unique to our area, but would be true of all of 25 medicine.


1 So there is no que -- 2 MR. PETER WARDLE: Per -- perhaps what's 3 unique is your intersection with the criminal justice 4 system, correct? 5 DR. MICHELLE SHOULDICE: It's not 6 completely unique, I would say. It perhaps occurs more 7 so in our area than in some other areas, but I wouldn't 8 say unique, no. 9 So I think that is a challenge that we 10 face every day, with respect to recognising that there 11 has been evolving medical knowledge that does influence 12 an -- our opinions, and that the state of medical 13 knowledge today is quite different than it would have 14 been ten (10) years ago or twenty (20) years ago. 15 So, yes, we have considered it and, yes, 16 it's a considerable challenge and I don't have an answer 17 to what we should do or how we should best do it. 18 COMMISSIONER STEPHEN GOUDGE: Are you 19 going to move on to another subject? 20 MR. PETER WARDLE: Yes, sir. 21 COMMISSIONER STEPHEN GOUDGE: It won't be 22 part of your time, but I'd like to just ask a little bit 23 more about this evolving knowledge base regarding shaken 24 baby or abusive head trauma, Dr. Shouldice. 25 Within the general area that you are a


1 specialist in, would this be one (1) of the areas that is 2 the greyest and in which there is the greatest focus of 3 research or are there others? 4 DR. MICHELLE SHOULDICE: No, there are 5 others. 6 COMMISSIONER STEPHEN GOUDGE: Okay. Is 7 there an example you could easily give me of another 8 that...? 9 DR. MICHELLE SHOULDICE: Other areas -- 10 COMMISSIONER STEPHEN GOUDGE: Just so I 11 would have a comparator? 12 DR. MICHELLE SHOULDICE: Other areas 13 would include fractures in young infants where there is 14 some degree of reduced bone density or what's called 15 osteopenia. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. MICHELLE SHOULDICE: And how to 18 interpret those findings. 19 COMMISSIONER STEPHEN GOUDGE: And the 20 amount of force that would be necessary -- 21 DR. MICHELLE SHOULDICE: The amount of 22 force. 23 COMMISSIONER STEPHEN GOUDGE: -- to 24 produce the fracture? 25 DR. MICHELLE SHOULDICE: Yes.


1 COMMISSIONER STEPHEN GOUDGE: Okay. 2 DR. MICHELLE SHOULDICE: That would be a 3 very good example. 4 COMMISSIONER STEPHEN GOUDGE: That is a 5 good example. To come -- to come back to the abusive 6 head trauma issue, Mr. Wardle was asking you about the 7 biomechanically oriented studies. My general sense is 8 that the biomechanical dimension of shaken baby is 9 something that has increasingly been injected into the 10 information base about this particular diagnosis. 11 Is that an accurate generalization? 12 DR. MICHELLE SHOULDICE: I think that's 13 accurate. 14 DR. DIRK HUYER: My difficulty with what 15 I've observed with the biomechanical injection -- as you 16 phrase it -- I think that's a good phrase because to some 17 extent that's what it's been -- is it hasn't matched, 18 necessarily, with the clinical -- the clinical day-to-day 19 observations. So there's been -- 20 COMMISSIONER STEPHEN GOUDGE: Explain 21 that. 22 DR. DIRK HUYER: There's been -- 23 COMMISSIONER STEPHEN GOUDGE: What do you 24 mean "has not matched," Dr. Huyer? 25 DR. DIRK HUYER: Well, there's been an


1 article or more than one (1) article where you can 2 calculate -- where there's been calculations done -- 3 mathematical calculations -- that say a child falling 2 4 inches can suffer the severe massive head trauma that you 5 would get clinically from a car crash. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. DIRK HUYER: So the two (2) just 8 don't come together effectively. So there's some 9 additional variables that are missing from the 10 mathematical calculation to what is going on clinically 11 in -- in the -- in a child and in the baby 'cause there's 12 so many other things that are going on in a live body. 13 The other biomechanical calculations that 14 are sometimes forgotten is the initial study by Duhaime. 15 Those biomechanical calculations and those research 16 models showed substantial force was required -- like a 17 lot of force is required. 18 COMMISSIONER STEPHEN GOUDGE: More force 19 than you could produce by shaking? 20 DR. DIRK HUYER: Well, yes and -- most 21 generally speaking, that's what it says. And then with 22 an impact, it would cause a greater degree. But it also 23 has -- the biomechanical studies have then gone -- 24 mathematical have said, Well, we can't -- you can't 25 generate enough force bio -- by their mathematical


1 calculations to do this from shaking. 2 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 3 DR. DIRK HUYER: So the two (2) just -- 4 the math isn't quite jiving with the clinical thing. It 5 informs and injecting is -- as I say, is a good 6 terminology 'cause it's another piece of information 7 that's important in looking at how these injuries occur. 8 And it adds to the evolving field, and it 9 contributes to the controversy. So I think it's a -- 10 very valuable, and I think it should be carried on and 11 continued. 12 COMMISSIONER STEPHEN GOUDGE: And pursued 13 as a research dimension of this -- 14 DR. DIRK HUYER: Absolutely. 15 COMMISSIONER STEPHEN GOUDGE: -- 16 challenge? 17 DR. DIRK HUYER: But it needs to be -- I 18 think as Mr. Wardle was alluding to, I wasn't quite sure, 19 but needs to be by a biomechanical expert who then can 20 link that through a research model or a clinical model -- 21 COMMISSIONER STEPHEN GOUDGE: To the 22 physiological findings, for example. 23 DR. DIRK HUYER: Exactly, exactly. So I 24 don't think it's a -- I know it's not as simple as 25 mathematical calculations.


1 COMMISSIONER STEPHEN GOUDGE: Okay. And 2 Mr. Wardle asked you a number of question related to 3 this, Dr. Shouldice, and let me ask it this way. In 4 approaching diagnosis of abusive head trauma, how do 5 people on your team learn to factor in the biomechanical 6 component? Is it by experience, experience plus 7 literature, conferences, and so on? 8 DR. MICHELLE SHOULDICE: I think all of 9 the above. Recognizing that we are not experts in 10 biomechanics and -- 11 COMMISSIONER STEPHEN GOUDGE: Well, that 12 is why I asked because you are not. 13 DR. MICHELLE SHOULDICE: Yeah. And that 14 we're really -- I think we're able to use the information 15 out there as we see it to be clinically relevant. And 16 that's a challenge, I would say. 17 COMMISSIONER STEPHEN GOUDGE: Right. As 18 you look forward, what ways are there to bridge that? 19 DR. MICHELLE SHOULDICE: Hmm. I think -- 20 COMMISSIONER STEPHEN GOUDGE: Because it 21 clearly is, at least potentially, Dr. Huyer, an important 22 piece of this puzzle? 23 DR. MICHELLE SHOULDICE: Yeah. 24 DR. DIRK HUYER: As are many things. 25 COMMISSIONER STEPHEN GOUDGE: As are many


1 things. Fair enough. As are many things. 2 DR. MICHELLE SHOULDICE: I think if there 3 were more local people who were interested in 4 biomechanics and in this area in particular, it would be 5 wonderful to be able to have -- 6 COMMISSIONER STEVEN GOUDGE: Right. 7 DR. MICHELLE SHOULDICE: -- those people 8 participate as part of our -- 9 COMMISSIONER STEVEN GOUDGE: To get that 10 expertise directly into the process -- 11 DR. MICHELLE SHOULDICE: Abso -- 12 COMMISSIONER STEVEN GOUDGE: -- of 13 diagnostics. 14 DR. MICHELLE SHOULDICE: Absolutely. 15 Although there's no one that I'm aware of -- 16 COMMISSIONER STEVEN GOUDGE: Yeah. 17 DR. MICHELLE SHOULDICE: -- in that area 18 locally. 19 COMMISSIONER STEVEN GOUDGE: I mean, we 20 have enough trouble getting -- 21 DR. MICHELLE SHOULDICE: Mm-hm. 22 COMMISSIONER STEVEN GOUDGE: -- the known 23 specialties, let alone the new ones. 24 DR. MICHELLE SHOULDICE: So -- so you 25 know, I think the next best is to hear those people


1 discuss these issues at continuing education events -- 2 COMMISSIONER STEVEN GOUDGE: Right. 3 DR. MICHELLE SHOULDICE: -- at 4 conferences -- 5 COMMISSIONER STEVEN GOUDGE: Fair enough. 6 DR. MICHELLE SHOULDICE: -- and read what 7 they write in the literature. 8 COMMISSIONER STEVEN GOUDGE: Okay. 9 That's helpful. Thanks. 10 Sorry, Mr. Wardle. 11 12 CONTINUED BY MR. PETER WARDLE: 13 MR. PETER WARDLE: So I'm almost 14 finished. I just -- and the last few questions I have 15 are really for you, Dr. Driver, and Dr. Huyer. 16 Just coming back to Justice Dunn's 17 decision, and sort of closing the circle, you would agree 18 with me that in retrospect, it was very critical of Dr. 19 Smith, correct? 20 DR. KATY DRIVER: I think, it certainly 21 was critical of HSC, myself included. 22 MR. PETER WARDLE: All right. Well, I'm 23 going to ask a few questions about Dr. Smith. 24 One (1) of the things Justice Dunn 25 concluded was that Dr. Smith had not done a thorough


1 enough autopsy report, correct? 2 DR. KATY DRIVER: Yeah. 3 MR. PETER WARDLE: That he didn't 4 seriously consider possibilities other than shaking, 5 correct? 6 DR. KATY DRIVER: That's what he said. 7 MR. PETER WARDLE: And that he gave 8 anecdotal evidence that was less than helpful, correct? 9 DR. KATY DRIVER: Yes. 10 DR. DIRK HUYER: In Dr. -- in Justice 11 Dunn's opinion. 12 DR. KATY DRIVER: That's his -- 13 MR. PETER WARDLE: In Justice Dunn's 14 opinion. 15 And finally, that in some sense he had 16 prejudged the outcome, correct? 17 DR. KATY DRIVER: That's what he wrote. 18 MR. PETER WARDLE: All right. And those 19 are themes that we've heard again and again in some of 20 the cases that we're examining in this Commission. 21 And my question really is: In retrospect, 22 thinking back to your -- your -- I hate to use the word 23 "post-mortem", but your meeting and your discussion 24 around the case once you had the judgment, wouldn't it 25 have been a useful opportunity for someone to perhaps


1 have raised a red flag about Dr. Smith, and about his 2 approach in this case, and whether that approach was 3 being used in other cases? 4 DR. KATY DRIVER: I don't know. 5 DR. DIRK HUYER: It's a challenging 6 question. And I think that we've explored how the 7 meetings tenor was by looking at the documents, so I 8 don't think that that necessarily was a consideration by 9 the leaders of the meeting, and including by outside 10 resources who were brought in to assist with the meeting. 11 So I don't think that the tenor allowed 12 that -- that step to be made. 13 MR. PETER WARDLE: Thank you very much. 14 Those are all of my questions. 15 COMMISSIONER STEVEN GOUDGE: Thanks, Mr. 16 Wardle. 17 Mr. Sokolov...? 18 19 CROSS-EXAMINATION BY MR. LOUIS SOKOLOV: 20 MR. LOUIS SOKOLOV: Good afternoon, 21 Doctors. My name is Louis Sokolov, and I'm a counsel to 22 the Association in Defence of the Wrongly Convicted, 23 AIDWYC, a public interest organization who is -- who is 24 concerned with identifying and correcting wrongful 25 convictions, as well as preventing wrongful convictions.


1 I'm going to return you to where Mr. 2 Wardle just left off, and that's the meeting in January 3 1992 regarding the Amber case, and the opportunity that 4 it presented, or may have presented. 5 Let me first take you to a -- a document 6 which is one (1) of the documents at Tab 46, PFP153149. 7 COMMISSIONER STEVEN GOUDGE: Volume I, 8 Mr. Sokolov? 9 MR. LOUIS SOKOLOV: Volume I, I'm sorry. 10 DR. DIRK HUYER: Tab which? 11 MR. LOUIS SOKOLOV: Tab -- 12 COMMISSIONER STEVEN GOUDGE: 46. 13 MR. LOUIS SOKOLOV: -- 46. 14 DR. DIRK HUYER: Okay. 15 16 CONTINUED BY MR. LOUIS SOKOLOV: 17 MR. LOUIS SOKOLOV: And that -- that's an 18 email. And I'm taking you to this because it seems to 19 show what the -- at least the initial intention was of 20 the meeting before it started. 21 And if you look at the bottom part of the 22 meal -- email exchange, it's an email from Dr. Mian to 23 Ms. Rau, suggesting that the decision of Justice Dunn be 24 faxed to Crown attorney Mary Hall. 25 And just following further down there,


1 after it says, "Happy New Year from the SCAN program" -- 2 DR. DIRK HUYER: Sorry, what page -- 3 COMMISSIONER STEVEN GOUDGE: Sorry. What 4 are you looking at? 5 DR. DIRK HUYER: -- what page are you on? 6 COMMISSIONER STEVEN GOUDGE: Yeah. I'm-- 7 MR. LOUIS SOKOLOV: Oh, it's the sixth 8 page in. 9 COMMISSIONER STEVEN GOUDGE: Okay. 10 MR. LOUIS SOKOLOV: It's an email 11 exchange. It has a header saying, "Printed by Brenda 12 Rau", on top. 13 COMMISSIONER STEVEN GOUDGE: They all -- 14 they all do. 15 DR. DIRK HUYER: Dated 1/7/1992? 16 MR. LOUIS SOKOLOV: Yes, dated January 7, 17 1992. I'm sorry. I was going by the electronic version. 18 DR. DIRK HUYER: All right. 19 MR. LOUIS SOKOLOV: Does -- does everyone 20 have that now? 21 DR. DIRK HUYER: Yes, yes. 22 COMMISSIONER STEPHEN GOUDGE: Yes, it's 23 the last page in Tab 46. 24 25 CONTINUED BY MR. LOUIS SOKOLOV:


1 MR. LOUIS SOKOLOV: So after "Happy New 2 Year" at the bottom of the page, this is where it 3 expresses what the intention was at the meeting, and that 4 was: 5 "According to Dr. Mian, following the 6 Judge's decision and comments in the 7 Amber case we decided to organise a 8 conference to review this case, what it 9 has to teach us and how we can do 10 things better in the future." 11 And you -- you'd agree with me, I take it, 12 that, certainly from what you now know looking at that 13 judgment, that it had a fair bit to teach the SCAN Unit 14 about how to do its job? 15 Would you agree with me, Dr. Driver? 16 DR. KATY DRIVER: I'm sorry? 17 MR. LOUIS SOKOLOV: That the -- the 18 judgment had a fair bit to teach you on how the SCAN Unit 19 was to go about doing its duties. 20 DR. KATY DRIVER: Yes. 21 MR. LOUIS SOKOLOV: And, Dr. Huyer, you 22 would agree with me as we;;? 23 DR. DIRK HUYER: I -- I wouldn't say that 24 it had a fair bit to teach. I think it illustrated that 25 there was a difference of opinion and that it illustrated


1 some areas that, in reading through the judgment, could 2 lead to improvement, but I don't know if I would 3 characterise it as a fair bit. 4 MR. LOUIS SOKOLOV: All right. Well, 5 aside from that characterisation, maybe I'll -- I'll just 6 take you back to some testimony, which I will read to 7 you, that Dr. Pollanen gave before the Christmas break 8 when he was asked by Mr. Sandler on December the 5th from 9 a forensic pathologist perspective that Justice Dunn 10 correctly articulate what the issues that forensic 11 pathology issues were, both in the way in which the death 12 investigation was conducted and where the pathology 13 should lead you. 14 Dr. Pollanen said: 15 "I think it was a masterful analysis of 16 the case, frankly, and I think that in 17 a way it was an analysis that was 18 perhaps slightly before its time 19 because I think that the growth of 20 knowledge in the area has really 21 evolved further in the direction that 22 was elucidated in that ruling. It's a 23 very lucid analysis of the -- the 24 issues." 25 That -- that's how Dr. Pollanen referred


1 to -- to the judgment, and would -- would you agree with 2 that, Dr. Huyer? 3 DR. DIRK HUYER: I don't dispute that, 4 it's the "fair bit" part that I think is sort of a bit 5 nebulous. 6 MR. LOUIS SOKOLOV: All right. In -- in 7 any event, there were lessons for the SCAN Unit to learn 8 from the Dunn judgment, correct? 9 DR. DIRK HUYER: Yes. 10 MR. LOUIS SOKOLOV: And -- and that was 11 the intention. So you -- you look then at who was 12 invited; it was the members of the SCAN Unit -- Unit, 13 correct? 14 DR. DIRK HUYER: Yes. 15 MR. LOUIS SOKOLOV: And the Crown 16 attorney, Mr. Reginbald, who was the prosecuting Crown 17 attorney in the case. 18 DR. DIRK HUYER: I'm not sure if he was 19 the prosecuting attorney, but he was certainly the 20 Crown -- 21 MR. LOUIS SOKOLOV: Right. 22 DR. DIRK HUYER: -- from that area. I 23 didn't know if he was or wasn't. She -- she -- 24 MR. LOUIS SOKOLOV: Excuse me. Mary 25 Hall --


1 DR. DIRK HUYER: Thank you. 2 MR. LOUIS SOKOLOV: -- who is a very 3 senior Crown attorney, who was the Chief Crown in the 4 Scarborough Region at the time, correct? 5 DR. DIRK HUYER: I don't know if she was 6 at the time, but I would not dispute that. 7 MR. LOUIS SOKOLOV: And she was one who 8 had worked with the SCAN Unit to a considerable degree in 9 the past, correct? 10 DR. DIRK HUYER: I don't know the amount. 11 MR. LOUIS SOKOLOV: All right. And Sandy 12 Kingston, a Crown attorney who had worked with the SCAN 13 Unit in the past? 14 DR. DIRK HUYER: Again, I don't know the 15 amount. 16 MR. LOUIS SOKOLOV: The -- looking then 17 at the way that the meeting proceeded, and you made 18 reference to the -- the tenor of the meeting before with 19 My Friend, Mr. Wardle. 20 DR. DIRK HUYER: I made reference to the 21 interpretation of the tenor from the documents, because I 22 don't really specifically recall the meeting. 23 MR. LOUIS SOKOLOV: All right. Well, let 24 -- let's just turn up a couple of the documents again. 25 And I -- I would ask you first to turn up the document at


1 Volume I, Tab 50, which is PFP153135. 2 DR. DIRK HUYER: Yes. 3 MR. LOUIS SOKOLOV: And the -- the first 4 line, "Why was case lost" -- do you see that? 5 DR. DIRK HUYER: Yes. 6 MR. LOUIS SOKOLOV: Do -- do you have any 7 recollection of who referred to the -- the case in those 8 terms, Dr. -- 9 DR. DIRK HUYER: I have no recollection 10 of the meeting. 11 MR. LOUIS SOKOLOV: And Dr. Driver...? 12 DR. KATY DRIVER: I don't. 13 MR. LOUIS SOKOLOV: But that was -- in 14 any event, that's the tenor of the meeting; it was all 15 about why this case was lost. 16 DR. DIRK HUYER: I think that tenor was - 17 - this -- if we can interpret the documents, that appears 18 to be what that tenor was, similar to that, and what 19 future difficulties may occur from the judgment, and was 20 there something -- I think that there was information 21 within these documents, what can SCAN learn from this, as 22 well. 23 I don't think it's solely that, but I 24 think that that's certainly an -- is evident in -- in 25 some of the documents, that there was this, to some


1 extent, maybe -- maybe a defensive posturing -- 2 MR. LOUIS SOKOLOV: Right. 3 DR. DIRK HUYER: -- or a defensive 4 concern about what would happen long term from this and 5 all sorts of things -- 6 MR. LOUIS SOKOLOV: And -- and I'll get 7 to that in a moment. I just wanted to highlight the -- 8 that language: "why was the case lost". 9 And let me ask you this -- and I'll ask 10 you first, Dr. Driver -- from SCAN's perspective was the 11 case lost? Why is an acquittal a loss to SCAN? Should 12 SCAN have cared one (1) way or the other whether there 13 was an acquittal or a -- or a conviction? 14 DR. KATY DRIVER: I -- it's difficult to 15 answer that question. 16 MR. LOUIS SOKOLOV: All right. Dr. 17 Huyer, do have an answer from the perspective of SCAN? 18 Should it care one (1) way or the other whether there is 19 an acquittal or a conviction? Should it have 20 characterized it in terms of a win or a loss? 21 DR. DIRK HUYER: I think it should be 22 characterized on the finding and what was the finding. 23 And that finding whether it's an acquittal or whether it 24 was a conviction the reasons behind those committals -- 25 or I mean, acquittals or convictions would be important


1 to know and important to learn from. 2 And so I think that the characterization 3 of a loss is -- is frankly not surprising that somebody 4 would characterize things in that way in our adversarial 5 system. I don't support it or agree with it 'cause I 6 don't think it is important either/or, but I think that 7 if there was an acquittal and that the role that was 8 provided by the SCAN physicians may have contributed in a 9 -- in a way that didn't make sense scientifically or 10 makes sense clinically or make sense from a procedural 11 point of view then there should be a look as to why that 12 acquittal might have occurred and what -- what we could 13 improve from. 14 MR. LOUIS SOKOLOV: Right. But that wou 15 -- that's prejudging that Justice Dunn was wrong in his 16 finding and that SCAN -- that -- that your evidence and 17 the evidence of Dr. Smith was right? 18 DR. DIRK HUYER: I don't think I said 19 that at all. 20 MR. LOUIS SOKOLOV: But isn't that the 21 implication from what you just said? 22 DR. DIRK HUYER: No. I can repeat that, 23 if you wish and try to elucidate a little bit better. 24 MR. LOUIS SOKOLOV: The -- Now, the -- 25 the tenor of the meeting was one of a very defensive


1 posture on the part of the people who were leading the 2 meeting, correct? 3 DR. DIRK HUYER: I can only interpret -- 4 my -- I can only interpret the documents, and I think 5 that there was some degree of defensiveness by my reading 6 of the documents. 7 MR. LOUIS SOKOLOV: Well, let me turn to 8 you then, Dr. Driver, because you have some independent 9 recollection of -- of the meeting? 10 DR. KATY DRIVER: I think -- I don't 11 think that there was -- I think the idea was to learn 12 what -- why the decision went the way it did, and whether 13 there was something that the SCAN Team did or did not do 14 that contributed to it. I think it was a learning 15 process. 16 MR. LOUIS SOKOLOV: All right. Now, at 17 Tab 53 -- Volume I, Tab 53, 153138, which is the notes 18 that Dr. Mian took. There's reference to Ms. Reginbald 19 referring to the -- the judge in somewhat disparaging 20 terms as "strange". We've -- we've seen that. 21 DR. KATY DRIVER: Yes. 22 MR. LOUIS SOKOLOV: And there is 23 reference at the -- on the second page to the judge being 24 referred to -- again in disparaging terms as a -- "at the 25 bottom of the heap".


1 And do you recall that second term, was 2 that a reference that came from one (1) of the Crown 3 attorneys or was that a reference that came from someone 4 else at the meeting, Dr. Driver? 5 DR. KATY DRIVER: I don't know. 6 MR. LOUIS SOKOLOV: At -- is it fair to 7 say -- and judging from these notes I don't see that 8 there was anyone at the meeting who even raised the issue 9 that Justice Dunn might have been right on the science, 10 is that fair? That -- that possibility was never even 11 entertained at the meeting. 12 And again I'll ask you, Dr. Driver, 'cause 13 you have something of an independent recollection of the 14 meeting? 15 DR. KATY DRIVER: I don't. 16 MR. LOUIS SOKOLOV: And -- and, Dr. 17 Huyer, I won't ask you because we can read the notes as 18 well as you can. 19 DR. DIRK HUYER: Yeah, well, I -- I can 20 speak to some of the personalities a little bit, so 21 that's why I commented before, but I'll respect the fact 22 you're not asking me. 23 MR. LOUIS SOKOLOV: So accepting the idea 24 that -- that this kind of meeting can be a useful 25 exercise, that there are things to learn from judgments


1 such as this one. And if you'll accept the idea that 2 this opportunity was, to a large extent, a missed 3 opportunity in the Amber case -- if you accept that, and 4 I see you -- I see you nodding, Dr. Driver and Dr. Huyer. 5 DR. KATY DRIVER: Yes. 6 DR. DIRK HUYER: I could accept that, 7 yes. 8 MR. LOUIS SOKOLOV: Do you -- do have any 9 suggestions how in the future if there's a meeting like 10 this, a post-mortem of a negative judgment, how it can 11 actually be conducted in a more effective and more 12 constructive way? 13 DR. DIRK HUYER: I think it speaks to the 14 facilitator, to some extent, and the ability of the 15 facilitator to have recognition that this is not an 16 attack necessarily. 17 That there's opportunity to learn and gain 18 from this, and I can speak to my knowledge of the 19 professionalism of the SCAN Program Team members now, and 20 say that I believe that a similar meeting would be held 21 differently. 22 MR. LOUIS SOKOLOV: All right. And what 23 about the personalities invited to a meeting? Is it 24 helpful, or would it be helpful to have people who are 25 more independent minded to -- to assist and to give you


1 advice? 2 DR. DIRK HUYER: It could be, but I think 3 again it speaks to the facilitator, and the recognition 4 of the value of a learning opportunity. 5 So the -- the benefit of bringing a more 6 independent minded may be that there's -- the facilitator 7 may think that that's a value, because there may be some 8 people who are less independent minded, and so there may 9 be balancing out. 10 So many times the -- the potential way of 11 learning and -- and gaining is to develop a good 12 discussion group that would be able to influence each 13 other within the meeting, or gain from the perspectives 14 of others, shall we say. 15 MR. LOUIS SOKOLOV: Now, the -- you'll 16 recall, Doctors, Ms. Rothstein yesterday, taking you to 17 the judgement of Dr. -- of -- of Justice Nasmith. 18 COMMISSIONER STEVEN GOUDGE: Before you 19 go to that, Mr. Sokolov. I'll stop your clock while I 20 ask this. 21 In a sense, I suppose, and I guess I look 22 at both you, Dr. Huyer, and you, Dr. Shouldice, as having 23 been Directors of the program, one could think of what 24 happened in the Amber trial as a kind of peer review 25 session, albeit conducted in the adversarial context of


1 the courtroom? 2 Viewed that way, if what happened in the 3 Amber trial had happened at peer review, would there have 4 been the same -- at least, perception, not defensiveness? 5 How much of that is contributed to by the adversarial 6 context in which this takes place? 7 The question -- and really what lies 8 behind my question is, is it possible that one (1) 9 suggestion that Mr. Sokolov's line of questioning leads 10 to, is to have some form of enhanced -- I don't want to 11 use the word "education", but understanding of what the 12 Justice System process is all about on the part of 13 professionals, so they can treat the difference of views 14 of experts more like peer review than as a war? 15 DR. MICHELLE SHOULDICE: Yeah. I mean, I 16 think the -- the whole issue of difference of opinion 17 within the field has, I think, evolved considerably since 18 this time, and I think any current discussion of a 19 similar type scenario would be conducted quite 20 differently, much more from an academic and peer review 21 approach. 22 So I think that times have changed, and 23 things have changed within the field. I -- I'm not sure 24 if that answered your question. 25 COMMISSIONER STEVEN GOUDGE: I just


1 wonder how much of the -- 2 DR. MICHELLE SHOULDICE: Well, we -- 3 COMMISSIONER STEVEN GOUDGE: -- the 4 perceived defensiveness that one can -- 5 DR. MICHELLE SHOULDICE: Yeah. 6 COMMISSIONER STEVEN GOUDGE: -- at least, 7 as Dr. Huyer does, read into these documents is the 8 product of the context in which the quote "peer review" 9 took place. 10 DR. DIRK HUYER: Oh, I absolutely think 11 so. There's no question that the Adversarial System, and 12 the Criminal Justice System, and the Family Court System, 13 and -- 14 COMMISSIONER STEVEN GOUDGE: The Court 15 System in general. 16 DR. DIRK HUYER: -- these -- the Court 17 System generally is, as we've talked about I think 18 earlier, is foreign to us as physicians, and so when you 19 feel like you may have -- and it may -- I'm not sure of 20 this, but there -- the judgment may have been a slap 21 towards the SCAN Program, and -- and instead of -- 22 COMMISSIONER STEVEN GOUDGE: You 23 attribute that we lost concern to the system? 24 DR. DIRK HUYER: Absolutely. And -- 25 COMMISSIONER STEVEN GOUDGE: And I guess


1 what I was getting at, Dr. Huyer, whether there was any 2 merit in considering some form of enhanced understanding 3 of the Justice System, to try to diminish that sense of-- 4 DR. DIRK HUYER: I'm sorry. Of the 5 justice system learning from us, or us learning from the 6 justice system? 7 COMMISSIONER STEVEN GOUDGE: Of you 8 learning about the Justice system, so that competing 9 experts can treat themselves more as if they were in a 10 peer review context, rather than a war. 11 DR. DIRK HUYER: I -- I think that that 12 has happened over the past number of years, but what I 13 have not seen as much is the Criminal Justice System 14 understanding the roles that we provide. 15 COMMISSIONER STEPHEN GOUDGE: Fair 16 enough. Fair enough. 17 DR. DIRK HUYER: And that I've seen far 18 more problematic both with -- well within all are -- 19 aspects of the -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. DIRK HUYER: -- Criminal Justice 22 System. So I think we have taken this on, and we 23 regularly have conversations about roles in the courtroom 24 and -- and roles as an expert witness, and the importance 25 of understanding and listening to others.


1 So I think that we have evolved 2 significantly from this, the -- the perceived tenor of -- 3 COMMISSIONER STEPHEN GOUDGE: In terms of 4 broad attitudes about -- 5 DR. DIRK HUYER: Absolutely. 6 COMMISSIONER STEPHEN GOUDGE: -- what 7 might result from a case like this? 8 DR. DIRK HUYER: And I know both of us 9 teach on this area and talk about this area on a regular 10 and an ongoing basis, and that it's been part of the 11 field. I recall a number of years back where I was 12 requested to give an opinion in a sexual assault case for 13 a prominent defence counsel who is not present here. 14 And the -- 15 COMMISSIONER STEPHEN GOUDGE: I thought 16 we had all of them. 17 DR. DIRK HUYER: They may just not be abs 18 -- they may be absent today. And -- and I'm wide open to 19 doing that, and I was -- I'm enthused to do that, because 20 I believe that everybody has -- should have the equal 21 opportunity to obtain the expertise that's available in 22 an area. 23 So I have a strong belief of that. And 24 so, when I present -- I -- I was -- my name was brought 25 forward by the defence counsel at the trial, and that was


1 many years ago, but the response of some of the other 2 involved parties was, Oh, he'll work for anybody. You 3 know, they'll pay -- anybody that pays money. 4 And I thought, you know, that's a 5 ridiculous comment, but that sort of speaks to some of 6 the general attitudes that were -- were present around 7 that time. And I think our field has evolved immensely 8 since that -- over the past -- certainly over the past 9 five (5) years -- much more rapidly over the past five 10 (5), but over the past ten (10) years. 11 A little more slowly in the first five 12 (5). 13 COMMISSIONER STEPHEN GOUDGE: Anything 14 you want to add, Dr. Shouldice? 15 DR. MICHELLE SHOULDICE: No. 16 t Ch Oa Mn Mk Is S. S I OS No Er Rr y S, T EM Pr H. E NS o Gk Oo Ul Do Gv E. : Okay, 17 MR. LOUIS SOKOLOV: Mr. Commissioner, 18 that line of questioning led into the area that I was 19 going to in any event, so I've -- 20 COMMISSIONER STEPHEN GOUDGE: Okay, away 21 you go. 22 MR. LOUIS SOKOLOV: -- completed my 23 examination. 24 MR. LOUIS SOKOLOV: Thank you. 25 DR. DIRK HUYER: Thank you.


1 DR. MICHELLE SHOULDICE: Thank you. 2 COMMISSIONER STEPHEN GOUDGE: Okay, Ms. 3 Davies -- Ms. Davis...? 4 5 CROSS-EXAMINATION BY MS. BREESE DAVIES: 6 MS. BREESE DAVIES: Good morning, my name 7 is Breese Davies. I'm counsel for the Criminal Lawyer's 8 Association -- 9 DR. DIRK HUYER: Good morning. 10 MS. BREESE DAVIES: -- here in Ontario. 11 Dr. Driver please forgive me, but my clients are most 12 interested in, sort of, a going forward and current 13 policy basis, so I may direct most of my questions to the 14 other two (2) members of the panel. 15 And I'm going to start with you, Dr. 16 Shouldice, and ask you, particularly, questions about 17 questioning of parents and caregivers, and if I slip into 18 language just of parents, I mean, sort of, the whole 19 group of people you might interview in -- in taking your 20 statements. 21 And you described the circumstances in 22 which you don't conduct a psychosocial assessment, and I 23 just want to make sure I understand that that -- what 24 you're really talking about is circumstances in which you 25 won't conduct the primary investigative interview in a


1 particular case, is that fair? 2 DR. MICHELLE SHOULDICE: That's fair. 3 MS. BREESE DAVIES: Okay. But you said 4 in response to -- 5 DR. MICHELLE SHOULDICE: Well, wait a 6 second, sorry. Let me take a step backwards. 7 MS. BREESE DAVIES: Sure. 8 DR. MICHELLE SHOULDICE: I think you may 9 be mixing the primary investigative interview and the 10 psychosocial assessment together into one (1) sentence 11 there. 12 MS. BREESE DAVIES: Okay. 13 DR. MICHELLE SHOULDICE: And they are two 14 (2) separate components. 15 MS. BREESE DAVIES: Okay. That was my 16 question. They are two (2) separate things? 17 DR. MICHELLE SHOULDICE: Yes, they are 18 two (2) separate things. 19 MS. BREESE DAVIES: Okay, so when psy -- 20 DR. MICHELLE SHOULDICE: They may have 21 been in the past merged together, but currently would be 22 considered two (2) separate things. 23 MS. BREESE DAVIES: Okay. So is it fair 24 to say that the SCAN Team does not in any circumstance 25 conduct the primary investigative statement anymore?


1 DR. MICHELLE SHOULDICE: We don't conduct 2 investigations, so... 3 MS. BREESE DAVIES: Okay. So that -- 4 DR. MICHELLE SHOULDICE: Or -- so I would 5 say, yes, we do not conduct investigative interviews. We 6 gather history that's relevant to a medical opinion. 7 MS. BREESE DAVIES: Okay. 8 DR. MICHELLE SHOULDICE: And whether we 9 do that, and how we do that directly, and when that 10 occurs, varies according to the type of case that we're 11 consulted on. 12 MS. BREESE DAVIES: Okay. So let me take 13 a few steps back and see whether I can sort of pin this 14 down. 15 You described, or perhaps Dr. Huyer 16 described, grey cases where you may interview the parents 17 and conduct a psychosocial assessment, is that fair? 18 DR. MICHELLE SHOULDICE: Yes. 19 MS. BREESE DAVIES: Okay. And in doing 20 so you would interview the parents about their background 21 and the circumstances of the injury, and stressors in 22 their life, is that fair? 23 DR. MICHELLE SHOULDICE: My role would be 24 to take a history relevant to the medical opinion. So it 25 may be the history of any injury event that occurred and


1 a medical history. The remainder of the psychosocial 2 history relevant to the environment the child was in, and 3 specific information about the parents would be taken by 4 a psychosocial member of our team, generally a social 5 worker. 6 MS. BREESE DAVIES: Okay. But that both 7 aspects of that would be done by someone who is 8 associated with your team in those grey cases? 9 DR. MICHELLE SHOULDICE: In those -- in 10 those particular cases, yes. 11 MS. BREESE DAVIES: Okay. And would you 12 agree with me that the purpose of those interviews, 13 either by you or by other members of your team, is to 14 assist you in either ruling out a suspicion of child 15 abuse or determining that there is a suspicion of child 16 abuse? 17 DR. MICHELLE SHOULDICE: So the role of 18 the history that I would take as a physician is with 19 respect to providing an opinion about the possibility of 20 abusive injury, yes. 21 The role of the social worker in the 22 psychosocial assessment would be to look at whether there 23 are circumstances within the environment of the child 24 that may place the child at risk of harm separate from -- 25 not necessarily specific to the injury event itself.


1 MS. BREESE DAVIES: Okay. And as a 2 result of those interviews that you conduct or anybody 3 else on your team, there could, in fact, be a report to 4 the police or the CAS? 5 DR. MICHELLE SHOULDICE: Yes. 6 MS. BREESE DAVIES: Okay. So in the grey 7 case, you would agree with me that some of the grey cases 8 become not suspicious, correct? 9 DR. MICHELLE SHOULDICE: Yes. 10 MS. BREESE DAVIES: And some of the grey 11 cases become more suspicious as you gather information or 12 you become more concerned about abuse? 13 DR. MICHELLE SHOULDICE: Concerned about 14 the possibility of risk of harm to the child. Not 15 necessarily specifically around the injury itself, but 16 more the environmental issues within the -- 17 MS. BREESE DAVIES: So do I understand 18 that the interview -- are you saying that the interview 19 doesn't make it more likely that you will form the 20 opinion that the injury that you've observed is a product 21 of abuse? Isn't that the point of your interview is to 22 determine whether the injury is likely the product of 23 abuse? 24 DR. MICHELLE SHOULDICE: So some elements 25 of the history -- I'm going to call it the history rather


1 than -- 2 MS. BREESE DAVIES: Sure. 3 DR. MICHELLE SHOULDICE: -- the interview 4 because I think -- I'm trying to be very clear that what 5 I'm taking is a medical history and not conducting an 6 investigative interview. 7 MS. BREESE DAVIES: Okay. 8 DR. MICHELLE SHOULDICE: So some of the 9 elements of the history specifically with respect to the 10 injury events, for example, may influence my opinion, 11 yes. 12 MS. BREESE DAVIES: Okay. And so you 13 would agree with me then that there could still be cases 14 like the one that was faced by Justice Campbell in the 15 Tyrell case with statements or history attributed to a 16 parent taken by the SCAN Team becomes part of a record in 17 a criminal proceeding, could happen still? 18 DR. MICHELLE SHOULDICE: I suppose that's 19 possible, yes. 20 MS. BREESE DAVIES: Okay. And I take it 21 that your change in practice to not do that in clearly 22 suspicious cases is to minimize the chances of that, but 23 it doesn't eliminate the chances of that happening, is 24 that fair? And perhaps, Dr. Huyer, you can jump in 25 seeing --


1 DR. DIRK HUYER: Yeah, I can -- 2 MS. BREESE DAVIES: -- you were there 3 right around the time. 4 DR. DIRK HUYER: -- I can comment on this 5 a little bit. 6 MS. BREESE DAVIES: Sure 7 DR. DIRK HUYER: I think that there's 8 perspective issues here. The -- it's quite clear that 9 when there's a case that's very suspicious of child 10 maltreatment, there is not a role for us to be leading an 11 investigation. So it's black and white. 12 MS. BREESE DAVIES: Right. 13 DR. DIRK HUYER: There's no role and 14 clearly we would be then furthering an investigation as 15 opposed to trying to sort through something. Or 16 furthering an investigation in the grey case, we're 17 pretty -- first of all, we have -- in my experience, in 18 my years, and -- and I -- I'm pretty sure 'cause I've -- 19 we've had ongoing case discussions that continued 20 experience -- I'll let Dr. Shouldice comment on it -- but 21 it -- it's a pretty unlikely case to be -- so we have a 22 low threshold to -- to make that decision that this is 23 suspicious. 24 So if it's suspicious of child 25 maltreatment, it's not going to be fitting in the grey


1 category. It's going to be pretty unlikely in the outset 2 to be thought of as -- as maltreatment. So even if it is 3 going to proceed potentially to a police or Children's 4 Aid investigation -- and -- and it would be Children's 5 Aid first who then would contact the police, by the way, 6 just from legalities point of view, that's the process. 7 Then I think that we're going in with very 8 good intent and very good process related purpose. In 9 other words, we're going in, we're introdu -- introducing 10 ourselves as injury evaluators from the Suspected Child 11 Abuse and Neglect Program not thinking that this was an 12 abusive injury. So it's a different mindset completely. 13 And from a voluntariness, I would defer to 14 the Criminal Justice System, but our approach is this is 15 important information that we think we can sort through 16 and probably is going to help us to clarify this issue 17 and then in turn, we're going to -- the injury issue and 18 then in turn, we're going look at the environment with 19 the psychosocial thing. 20 MS. BREESE DAVIES: And just so you're 21 clear in terms of my questions, I'm not suggesting any 22 intent or -- or, sort of, ill intent on anybody's part; 23 I'm trying to, sort of, work through the process of -- 24 DR. DIRK HUYER: Absolutely. 25 MS. BREESE DAVIES: -- of the -- the


1 possibilities. So, I take it from your answer, the 2 threshold of when you back out of doing an interview or 3 taking a history from the parents is quite low. 4 DR. DIRK HUYER: I would say that's fair. 5 And what do you think? 6 DR. MICHELLE SHOULDICE: I'm not even 7 sure I understood that. Could you just -- 8 MS. BREESE DAVIES: The threshold in 9 terms of your level of suspicion, or maybe I've got it 10 backwards, but if you really have any suspicion of abuse 11 you back away from taking a statement from parents, is 12 that fair, or a history from parents? 13 I'm -- I'm trying to get a sense of when 14 it happens and when it doesn't and -- and perhaps -- 15 DR. MICHELLE SHOULDICE: I think it's 16 easier to say the other way around. I think if there's 17 clear -- if there's clearly a possibility or a suspicion 18 of child abuse raised, there is no question that we bu -- 19 under the CFSA, we are mandated to immediately report to 20 CAS anyway, so those are cases where it's very clear -- 21 MS. BREESE DAVIES: Right. 22 DR. MICHELLE SHOULDICE: -- that we do 23 not take in a -- we do not take a history. 24 MS. BREESE DAVIES: Okay. So, let me 25 then talk about the cases where you might take a history


1 from parents, all right -- 2 DR. MICHELLE SHOULDICE: Yes. 3 MS. BREESE DAVIES: -- that it's in the 4 category of the grey cases where you might take a history 5 from the parents. Do you tell parents or caregivers that 6 they don't have to speak to you? 7 DR. MICHELLE SHOULDICE: Yes. So, our -- 8 in those cases in which we're speaking about now, the 9 grey cases -- 10 MS. BREESE DAVIES: Yes. 11 DR. MICHELLE SHOULDICE: -- as you've -- 12 as we've all been referring to them, there is actually a 13 protocol that the social workers follow prior to speaking 14 with the families where they are very clear who we are; 15 that we're from the Suspected Child Abuse and Neglect 16 Program. 17 They're very clear with the families that 18 they do not -- they're -- they do not have to participate 19 in this discussion. They're very clear with parents that 20 information that the parents share with them and with us 21 may lead to a report to the Children's Aid Society. They 22 explain what the Children's Aid Society is and what their 23 mandate is. 24 MS. BREESE DAVIES: Okay. 25 DR. MICHELLE SHOULDICE: And with respect


1 to specifically whether they inform them that the police 2 may become involved or the Criminal Justice System may 3 become involved, I honestly would have to look at the 4 specific wording, but I believe that's also in there. 5 It's not a hospital protocol, so I'm not 6 sure whether it's -- 7 MS. BREESE DAVIES: Oh. 8 DR. MICHELLE SHOULDICE: -- actually in 9 all of the documents. 10 MS. BREESE DAVIES: Okay. 11 DR. MICHELLE SHOULDICE: It's a SCAN sort 12 of practice guideline that's been utilized, I would say, 13 for the last, I don't remember exactly when they started 14 utilizing it, but I would say for the last five (5) 15 years, anyway. 16 DR. DIRK HUYER: Yeah, there was -- it 17 was not -- not as -- it wasn't, I'm trying to look for 18 the word, scripted isn't necessarily the word, but it 19 wasn't as systematic when I was still there. 20 MS. BREESE DAVIES: It was not as -- 21 DR. DIRK HUYER: It was not as systematic 22 but -- 23 MS. BREESE DAVIES: Okay. 24 DR. DIRK HUYER: -- that information was 25 provided.


1 COMMISSIONER STEPHEN GOUDGE: Was it 2 written down anywhere? 3 DR. DIRK HUYER: In -- when I was there, 4 no -- 5 DR. MICHELLE SHOULDICE: It is now. 6 DR. DIRK HUYER: -- I don't believe so. 7 I don't believe it was; I may be wrong, but certainly it 8 was discussed and there was -- it was an approach that 9 was taken by the social workers. 10 11 CONTINUED BY MS. BREESE DAVIES: 12 MS. BREESE DAVIES: So there's a sort of 13 standard blurb or -- 14 DR. MICHELLE SHOULDICE: Yes. 15 MS. BREESE DAVIES: -- series of points a 16 social worker says to the parents before any information 17 is collected. 18 DR. MICHELLE SHOULDICE: It's pretty much 19 a script. 20 MS. BREESE DAVIES: Okay. Let me deal 21 briefly, then, with the quality assurance issue, and I 22 know you've talked about reports not being peer reviewed. 23 I take it that there's also then no mechanism for 24 periodic or random audits of reports that go out of the 25 SCAN Unit to -- to the Court System, Family or Criminal,


1 is that true? 2 DR. MICHELLE SHOULDICE: Our reports go 3 to the Children's Aid Society -- 4 MS. BREESE DAVIES: Right. 5 DR. MICHELLE SHOULDICE: -- and may go to 6 the police if there's a joint investigation, either by 7 consent or through the Children's Aid Society, so that's 8 the route by which they go into the Justice System. 9 And there is no formal process in place, 10 no. 11 MS. BREESE DAVIES: Okay. And I take it, 12 repo -- there are other reports generated when you're 13 consulted by Crown attorneys and they go directly into 14 the Criminal Justice System, and that's fair, too? 15 DR. MICHELLE SHOULDICE: By Crown 16 attorneys or defence attorneys, yes. 17 MS. BREESE DAVIES: Okay. Let me ask you 18 a couple of questions, Dr. Huyer, about, and -- and I've 19 already asked you this question, and I know the answer, 20 but I'm going to see if -- if I can help you. 21 I understand you don't recall how soon 22 after you joined the SCAN Team you were first qualified 23 as an expert to give an opinion about the interpretation 24 of injuries, is that -- 25 DR. DIRK HUYER: No, it's -- my


1 recollection was, it was in Brampton in -- but I don't 2 remember -- and it was a sexual abuse case, but I don't 3 remember specifically when. 4 MS. BREESE DAVIES: Can you help me 5 whether it was months or years after you joined the SCAN 6 Team? Sort of ballpark. 7 DR. DIRK HUYER: I would suspect that it 8 was based upon the rapidity -- or the -- the typical 9 speed of the Criminal Justice System; it was probably 10 about a year after I joined. 11 MS. BREESE DAVIES: Okay. And at that 12 point in your career, certainly compared to today, you 13 had relatively little experience in the area specifically 14 of injury interpretation in children. Is that fair? 15 DR. DIRK HUYER: Yes. 16 MS. BREESE DAVIES: And looking back at, 17 sort of, the first time you were qualified as an expert, 18 and knowing what you know now, would you say that you, in 19 fact, had the expertise and experience to be qualified in 20 the area of child injury interpretation, at that point in 21 your career? 22 DR. DIRK HUYER: As -- as -- in a role as 23 an educator to the Court, yes. 24 MS. BREESE DAVIES: Okay. Do you recall 25 how -- the extent to which your expertise was challenged


1 in that case by defence counsel? 2 DR. DIRK HUYER: No, I don't. It was -- 3 as I say, it was a sexual abuse trial first. I don't 4 recall that. 5 I do recall a Family Court matter early in 6 my career where I was extensively challenged by the 7 Family Court. That was out of Hamilton, and I was 8 extensively challenged in that area and was accepted by 9 the Family Court judge. 10 MS. BREESE DAVIES: And was -- is that 11 unusual in your experience, or was that, sort of, the 12 beginning of a series of harsh challenges to your 13 expertise? 14 DR. DIRK HUYER: I mean I guess harsh is 15 a relative term. I was challenged extensively in many 16 cases. I don't know the percentage. 17 MS. BREESE DAVIES: Mm-hm. 18 DR. DIRK HUYER: It wasn't in -- it 19 wasn't all cases, and -- but I was challenged 20 extensively, and continue to be challenged extensively in 21 -- in some cases; not as extensive lately, but certainly 22 was challenged on a regular basis. 23 MS. BREESE DAVIES: And, Dr. Shouldice, 24 I'd just like your view on that as well. Sort of -- same 25 sort of questions.


1 How long after you joined the SCAN team 2 were you first qualified as an expert in the area of 3 injury interpretation, and sort of picked the -- the 4 broadest one (1) I think we've described? 5 DR. MICHELLE SHOULDICE: So I started my 6 Fellowship in 1998. Came on staff in 1999. And I think 7 my first experience as an expert witness was in 2000. 8 So I guess one (1) year after becoming a 9 staff member on the team; two (2) years after beginning-- 10 MS. BREESE DAVIES: Working there. 11 DR. MICHELLE SHOULDICE: -- working in 12 the field. 13 MS. BREESE DAVIES: Okay. And again, is 14 your experience that your expertise has been extensively 15 challenged, or not? And I'm focussed -- or most 16 interested in criminal matters. 17 DR. MICHELLE SHOULDICE: I would think 18 not extensively challenged. 19 MS. BREESE DAVIES: Not extensively 20 challenged. 21 And then I have a couple of questions. 22 Both you, Dr. Shouldice, and you, Dr. Huyer, said that 23 the vast majority of the testimony you've provided is -- 24 is in relation -- in criminal cases is for the Crown, but 25 you have testified on occasion for the defence.


1 And my question is to both of you. In 2 circumstances where you are going to be presented as a 3 Crown witness, is there a policy at the SCAN team, and 4 what is your practice if there isn't a policy, in respect 5 of speaking to the defence counsel involved in those 6 cases? 7 DR. DIRK HUYER: It was a verbal policy 8 of mine, with everybody -- it wasn't written policy, that 9 there's -- there's no reason you would not be speaking to 10 any -- any -- whether it be prosecution or -- or Crown, 11 or Family Court lawyers if there was no confidentiality 12 issues involved that you should be speaking to them. 13 MS. BREESE DAVIES: Okay. Dr. Shouldice? 14 DR. MICHELLE SHOULDICE: There is no 15 formal policy in place, but it's my practice to speak to 16 any type of counsel in any type of case, as long as the 17 consent issues are -- 18 MS. BREESE DAVIES: Okay. 19 DR. MICHELLE SHOULDICE: -- are dealt 20 with. 21 MS. BREESE DAVIES: And -- and do you 22 both -- have you both found that those discussions, to 23 the extent that you've had them, are helpful to ensure 24 that defence counsel, or opposing counsel, whichever side 25 you're on, understand your opinions and the limits of


1 your opinion? 2 DR. DIRK HUYER: I would say it depends 3 on the personality of the defence counsel. 4 There's been a number of occasions where 5 comments that I made during those meetings were brought 6 back to me to try and undermine my credibility, and 7 that's occurred on a number of occasions, and frankly, it 8 makes one less interested in meeting with counsel. 9 MS. BREESE DAVIES: Sure. 10 DR. DIRK HUYER: However, that hasn't 11 stopped me, because again, I'm well aware of that 12 potential issue that may arise, so -- but otherwise, 13 there's been an -- I would say more times than not, 14 defence counsel have understood the perspective and the - 15 - or prosecution in the other -- other aspect, have 16 understood the perspective and the basis of my opinion, 17 and it's probably decreased my time in testimony, and 18 enhanced understanding of the -- of the process. So I'm 19 -- I'm always keen to do it. As the less time on the 20 stand, and the more people understand things, the better. 21 MS. BREESE DAVIES: Dr. Shouldice, is 22 your experience similar or different? 23 DR. MICHELLE SHOULDICE: With respect to 24 a particular preliminary hearing, or a trial in Criminal 25 Court, I've had very little experience at being requested


1 by defence to speak to them prior to -- to that 2 proceeding. 3 MS. BREESE DAVIES: Oh, okay. One (10) 4 other question, and I'll -- I'll direct it to you, Dr. 5 Huyer, since you seem to have had more experience with 6 this. 7 In those circumstances where you do speak 8 to defence counsel in advance of testimony at a 9 preliminary inquiry or a trial, is it your practice or 10 did you know whether there was a policy at SCAN about 11 reporting those conversations back to the Crown attorney? 12 DR. DIRK HUYER: There was -- in my 13 earlier years, that was, as I understood, a -- an 14 approach that was undertaken by my colleague, Dr. Mian. 15 I think initially I followed that approach, but over the 16 years after that I didn't feel that that was necessarily 17 indicated, or a necessity. 18 There may be conversation about some of 19 the conversations during preparation for trial; that 20 could occur. 21 MS. BREESE DAVIES: So just so I -- if I 22 understand that, initially there was a -- a, sort of, a 23 routine practice of if you spoke to defence counsel, you 24 would report that back to the Crown? 25 Now it's a more informal -- if they ask


1 you about a discussion, you might tell them or you might 2 raise an issue with the Crown that comes up, but there's 3 no automatic reporting back, is that -- 4 DR. DIRK HUYER: Yes. 5 MS. BREESE DAVIES: -- what I understand? 6 DR. DIRK HUYER: I definitely don't 7 automatically report back. I mean there may be some very 8 valid issues that are brought up by defence counsel that 9 require me to re-explore an opinion that I may have 10 provided, and -- and that would clearly be something that 11 I would bring up with -- with a Crown counsel, if that 12 was -- if that was something that I was re-exploring. 13 Because clearly that may change the whole 14 approach that the Criminal Justice System is taking. So 15 there may be some new information that I was not aware of 16 that's brought to me, that would clearly allow a change 17 in -- in the approach that I'm taking, and therefore a 18 change in what I think the Criminal Justice System may 19 follow. 20 MS. BREESE DAVIES: All right. Okay. 21 Just one (1) other area which I think will be quite 22 quick. Dr. Shouldice, you described how there was some 23 scepticism on the part of some people around accepting 24 the alternative explanations for the injuries that might 25 have been consistent with shaken baby or might be


1 consistent with these alternate explanations. 2 Do you remember that testimony yesterday 3 about the sort of scepticism on the part of some around 4 the alternative explanations? 5 DR. MICHELLE SHOULDICE: Yeah, and I 6 would -- I think I refer to that as very early on in the, 7 sort of, evolution of some of these controversies. 8 MS. BREESE DAVIES: Right, and I think 9 you were talking about how the evolution has sort of -- 10 there's been a bit of -- of a snowballing more recently, 11 in more recent years as the built -- the -- the con -- or 12 the understanding of the alternative explanation's built, 13 is that fair to say? 14 DR. MICHELLE SHOULDICE: I would say 15 there's been certainly an evolution, and then knowledge 16 in the area and the -- the differing types of theories 17 and information available in the literature, yes. 18 MS. BREESE DAVIES: Okay. Would you 19 agree that the SCAN members generally were among those 20 whose were sceptical of the alternate explanations? 21 DR. MICHELLE SHOULDICE: As -- as I said 22 yesterday, this was early on I think, in the -- in the 23 evolution of some of these theories, and I wasn't there 24 at the time that very early information was evolving, so 25 I don't think I can answer that question.


1 MS. BREESE DAVIES: Dr. Huyer...? 2 DR. DIRK HUYER: Yes. 3 MS. BREESE DAVIES: The answer is yes? 4 And -- 5 DR. DIRK HUYER: But I think that may not 6 been as sceptical as some of the others in the field. 7 MS. BREESE DAVIES: Okay. 8 DR. DIRK HUYER: And I think that with 9 continued evolution and learning, I think that that 10 scepticism decreased fairly -- you know, I think it 11 continued to decrease as more knowledge was there. 12 So I think there was some one-off 13 situations that clearly were looked at sceptically, but 14 as it became more than just a one-off situation, then 15 people started to recognize, Well wait a sec, this isn't 16 just a one-off being put forward. 17 Because there are many one-off things that 18 are out there that really have no scientific basis. And 19 once some -- some additional information came forward, 20 more study, more understanding of how that one-off -- or 21 now more than one-off could, in fact, be scientifically 22 based, I think that that enhanced the -- the 23 understanding, and led to increased recognition of the 24 potential controversies and how that would affect 25 different diagnoses.


1 MS. BREESE DAVIES: And is there any 2 recommendation or thoughts that you have about how we can 3 avoid those sorts of scepticisms or slow willingness to 4 adopt alternative explanations in the future when there 5 are other developments in medical issues? 6 DR. DIRK HUYER: I think that many of the 7 approaches that Dr. Shouldice has talked about earlier, 8 which is peer review, peer discussion, collegial 9 discussion, conferences and recognition that now these 10 things do occur that -- that we don't know everything. 11 I think that's a general acceptance now 12 more in our field, whereas earlier on people were pretty 13 sure they knew what was going on, and now with all of the 14 -- with continuing development of knowledge and -- and 15 knowledge of controversies, I think we're more willing 16 now, as a field, to accept change and accept 17 controversies. 18 And there are certainly is discussions at 19 conferences about that and recognition amongst those 20 experts that are coming through in the field that this is 21 an area that we need to listen to these things, and we 22 need to consider them. 23 I don't think you can change initial 24 scepticism if it flies in the face of everything else 25 that's present. I think it needs to continue to be


1 considered, but if one looks at one sceptically, it 2 doesn't mean they didn't look at it. 3 MS. BREESE DAVIES: Fair enough. 4 DR. DIRK HUYER: So I think that that's 5 an important thing to remember. 6 MS. BREESE DAVIES: Fair enough. Thank 7 you. Those are my questions. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 9 Davies. I have just one (1) practical question for both 10 you, Dr. Huyer, and you, Dr. Shouldice. If -- if a SCAN 11 doctor is retained by the defence, is that of their 12 regular workday or do they do that on their own time? 13 DR. MICHELLE SHOULDICE: I would say a 14 little bit of both. There is no regular workday for us, 15 unfortunately and -- 16 DR. DIRK HUYER: That's about -- 17 DR. MICHELLE SHOULDICE: -- our -- our 18 regular workday is so all consumed by the daily cases 19 that we're involved with that, in reality, it would 20 probably occur on our time. But our own time is not our 21 own time really, anyway. A lot of the work that we do is 22 done after hours or outside of our regular workday. 23 COMMISSIONER STEPHEN GOUDGE: Yes. I 24 guess what I was getting at is that I envisage your team, 25 like any other part of a busy tertiary hospital, being


1 fully engaged in the work that comes to you through the 2 hospital in the variety of sources that you have 3 described to us, but if a defence lawyer were to phone 4 you up, Dr. Shouldice, and say I would like to get your 5 help on this case? 6 DR. MICHELLE SHOULDICE: I would consider 7 that part of the work that I do within the auspices of 8 the program. 9 COMMISSIONER STEPHEN GOUDGE: And is 10 there room within the institution of the hospital to 11 accommodate that recognizing the pressures of, sort of, 12 the work that comes through the regular stream? Or is 13 this simply seen as an add-on that is going to be 14 difficult to accommodate? 15 DR. MICHELLE SHOULDICE: I -- I think, -- 16 you know, as I've said, within our program, we would 17 consider that part of the work that we do, and offering 18 opinions to anybody who -- 19 COMMISSIONER STEPHEN GOUDGE: Yes, and 20 I -- 21 DR. MICHELLE SHOULDICE: -- has such an 22 opinion would be part of our program. As to how 23 difficult it is to accommodate, it's extremely difficult 24 to accommodate requests for any type of review in a case 25 where we haven't been directly involved just because of


1 restrictions based on the numbers of -- of personnel we 2 have. 3 COMMISSIONER STEPHEN GOUDGE: Yes. No, I 4 mean, I understand that. 5 DR. MICHELLE SHOULDICE: So -- 6 COMMISSIONER STEPHEN GOUDGE: I am not 7 saying this in any pejorative sense. 8 DR. MICHELLE SHOULDICE: No. 9 COMMISSIONER STEPHEN GOUDGE: This is 10 just a fact of life. But given the narrow -- 11 DR. MICHELLE SHOULDICE: It is a fact of 12 life. 13 COMMISSIONER STEPHEN GOUDGE: -- field of 14 expertise and the importance to the Justice System of 15 having experts available to both the Crown and the 16 defence, this is a practical dilemma. 17 DR. MICHELLE SHOULDICE: I think we do do 18 it, and we all think it's an important part of what we 19 do. It's, as I said, a very -- practically difficult 20 thing to do, but we have continued to offer that. 21 COMMISSIONER STEPHEN GOUDGE: Dr. 22 Huyer...? 23 DR. DIRK HUYER: And I'll -- I'll build 24 on that a little bit because when there's less physicians 25 available at Sick Kids day-to-day, there's another person


1 they call, and that would be myself. 2 And so some of the cases will get shunted 3 to me whether it's a review kind of case -- that's 4 outside of abusive head trauma because I've drawn that 5 line or whether it's a defence counsel case. Again, not 6 specifically to abuse trauma, but even more practically - 7 - practical importance to consider is there's a small 8 number of experts, so it's not uncommon that I receive an 9 email, a telephone call, a letter saying, Dr. Huyer, we - 10 -we know of you, we've heard from my colleague, so and 11 so, we understand you'd be prepared to provide an opinion 12 to the defence. Could you provide an opinion on a child 13 who suffered injuries? 14 And I'll send back the email, and I'll 15 say, I first of all want to let you know that if that 16 child was seen at Sick Children's, my close colleague is 17 Dr. Michelle Shouldice. I have no difficulty commenting 18 on her reports. I have no difficulty providing you 19 opinion for that, but you need to know that she's a 20 colleague and -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. DIRK HUYER: -- she's a friend. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. DIRK HUYER: And that's not an 25 uncommon occurrence.


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. DIRK HUYER: And Dr. Shouldice 3 doesn't necessarily know that because of confidentiality 4 issues from client confidentiality -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. DIRK HUYER: -- or attorney/client -- 7 attorney/expert confidentiality. 8 COMMISSIONER STEPHEN GOUDGE: Right, 9 right. 10 DR. DIRK HUYER: But that's another issue 11 that needs to be thought of. 12 COMMISSIONER STEPHEN GOUDGE: That is a 13 whole other issue. 14 DR. DIRK HUYER: Absolutely, but a 15 practical one. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. MICHELLE SHOULDICE: And I think -- 18 we also get requests that we do turn away. For example, 19 there are some requests from out of Province for second 20 opinions or expertise in -- in cases. 21 COMMISSIONER STEPHEN GOUDGE: And you 22 just don't have the time or -- 23 DR. MICHELLE SHOULDICE: And we just 24 don't have time or -- 25 COMMISSIONER STEPHEN GOUDGE: -- the


1 horsepower to do it. 2 DR. MICHELLE SHOULDICE: -- resources to 3 do it, and we would redirect those to other people where 4 -- you know, where there are resources. 5 COMMISSIONER STEPHEN GOUDGE: All right. 6 And remind me why you draw the line, Dr. Huyer on -- 7 DR. DIRK HUYER: On the abusive head 8 trauma? Because I'm outside of the academic institution 9 and I don't -- 10 COMMISSIONER STEPHEN GOUDGE: And it's a 11 matter of keeping up with -- 12 DR. DIRK HUYER: Right, the literature. 13 And I -- I mean Peel doesn't have -- 14 COMMISSIONER STEPHEN GOUDGE: Yes, you've 15 said that to us before. 16 DR. DIRK HUYER: Peel doesn't have head 17 injury analysis, so I can't keep up. 18 COMMISSIONER STEPHEN GOUDGE: Thanks. 19 Okay, well we'll rise now and come back at five (5) past 20 2:00 with you, Ms. Fraser. 21 22 --- Upon recessing at 12:50 p.m. 23 --- Upon resuming at 2:05 p.m. 24 25 THE REGISTRAR: All rise. Please be


1 seated. 2 COMMISSIONER STEVEN GOUDGE: Ms. 3 Fraser...? 4 5 CROSS-EXAMINATION BY MS. SUZAN FRASER: 6 MS. SUZAN FRASER: Thank you, Mr. 7 Commissioner. Good afternoon. 8 Good afternoon, Doctors. My name is Sue 9 Fraser, and I'm here on behalf of an organization called 10 Defence for Children International, which is an 11 international charity grassroots organization based in 12 Geneva, whose aims are to promote and protect the rights 13 of the children, as set out in the UN Convention, 14 including their freedom -- their right to be free from 15 violence, and including their right to -- to their 16 identity. 17 So I just have a few questions for you 18 today, and my time is limited, so to the extent that 19 you're able to answer in a yes or no fashion, that would 20 be of great assistance to me, but if you can't, I 21 understand that as well. 22 And I'll -- I'll frame my questions just 23 sort of -- because Dr. Shouldice, you're there now, the 24 Director, part of what you do, I understand, relates to 25 injury interpretation, but I understand that there's


1 another aspect of child maltreatment, where the injuries 2 might not actually be obvious. Where there's an illness, 3 and it's suspected that the illness is due to 4 maltreatment. 5 Am I correct? 6 DR. MICHELLE SHOULDICE: Hm, I'm trying 7 to think of a scenario that might fall into that 8 category, and I honestly can't think of one (1) off the 9 top of my head. 10 MS. SUZAN FRASER: Okay. So is it fair 11 to say that primarily the SCAN team is called in when 12 there's an injury interpretation question? 13 DR. MICHELLE SHOULDICE: No, not 14 necessarily. That would one (1) piece of what we would 15 do. 16 MS. SUZAN FRASER: Okay. 17 DR. MICHELLE SHOULDICE: From a physician 18 point of view, we could be involved in any type of 19 concern of physical abuse. Also concerns of neglect. 20 MS. SUZAN FRASER: Yes. 21 DR. MICHELLE SHOULDICE: Also concerns 22 where there may be concerns that parent's non-adherence 23 to medical recommendations may place a child at risk of 24 harm; what we call -- what we term "medical neglect." 25 MS. SUZAN FRASER: All right. So the


1 treatment team is rema -- recommending a particular 2 course of treatment that -- that they think will be -- 3 will improve the child's health. The parents as the con 4 -- as being in a position to give consent have declined 5 that treatment, and there's a concern that that is not in 6 the best inference --interest of the child. 7 Is that the type of example that you're 8 thinking of? 9 DR. MICHELLE SHOULDICE: That is the type 10 of example. 11 MS. SUZAN FRASER: Okay. So in those 12 circumstances, you would be called to give an opinion, or 13 you're called in terms of a resource to the treatment 14 team as to what to do in those circumstances? 15 DR. MICHELLE SHOULDICE: More the latter. 16 A resource to the treatment team in terms of what to do, 17 and when a threshold has been reached that would require 18 reporting to the Children's Aid Society. 19 MS. SUZAN FRASER: All right. So what my 20 understanding is, is that part of your expertise is in 21 determining the -- where the medical meets the legal in 22 terms of what triggers a report to the Children's Aid 23 Society. 24 Is that fair? 25 DR. MICHELLE SHOULDICE: That would be


1 frequently what we're asked to provide advice on, yes. 2 MS. SUZAN FRASER: Okay. And then in 3 those circumstances where the team determines that a 4 contact to the Children's Aid Society must be made, do 5 you take over carriage, for lack of a better word, of the 6 contact with the Children's Aid Society? 7 DR. MICHELLE SHOULDICE: That varies -- 8 MS. SUZAN FRASER: Okay. 9 DR. MICHELLE SHOULDICE: -- depending on 10 our degree of involvement with the case. 11 MS. SUZAN FRASER: All right. So in some 12 circumstances, you might become the primary contact and 13 liaison with the Children's Aid Society? 14 DR. MICHELLE SHOULDICE: In some 15 circumstances, yes. 16 MS. SUZAN FRASER: All right. And in 17 some circumstances, that might remain with the treatment 18 team? 19 DR. MICHELLE SHOULDICE: That's correct. 20 MS. SUZAN FRASER: Okay. And does that 21 determination made based on the individual treatment 22 team's comfort with -- can the treatment team choose to 23 have you do that, and say, you know, I'm not comfortable? 24 I'm just trying to get a sense of the dynamic. 25 DR. MICHELLE SHOULDICE: It would be more


1 who has the most direct knowledge of the primary area of 2 concern. 3 MS. SUZAN FRASER: All right. 4 DR. MICHELLE SHOULDICE: So, for example, 5 if it's a social worker that has a concern based on some 6 psychosocial information, then we would encourage that it 7 be that person that makes the referral. 8 MS. SUZAN FRASER: I see. And you would 9 facilitate that, I take it, in terms of how that's to be 10 done and -- and what steps to be taken? 11 DR. MICHELLE SHOULDICE: Perhaps to some 12 extent sometimes just providing the advice that a 13 referral needs to be made and who best to contact. 14 MS. SUZAN FRASER: I see. And then in 15 terms of the -- sorry, going back to the example of 16 neglect, if there's a case where there is determined some 17 sort of neglect, is there a treatment aspect to that, as 18 well as the referral? 19 Is there a way that you assist in -- in 20 treating children who may be subject to neglect by their 21 -- by their caregivers? 22 DR. MICHELLE SHOULDICE: So our 23 psychologist would ha -- does provide some treatment 24 services most in the area of where children have 25 experienced trauma.


1 MS. SUZAN FRASER: Yes. 2 DR. MICHELLE SHOULDICE: And so in some 3 cases of neglect that trauma experience is maybe a part 4 of that and she may become involved in a family in a 5 treat -- treatment capacity in that type of a case. 6 MS. SUZAN FRASER: All right. And I -- I 7 take it, then, that the SCAN Team can provide services, 8 whether or not there is a referral to a Children's Aid 9 Society. You might continue to be involved in the 10 treatment of a particular patient whether or not there's 11 a referral to the Children's Aid Society. 12 DR. MICHELLE SHOULDICE: Yes, an example 13 would be -- again, our psychologist provides services to 14 families where a child has certain types of sexual 15 behaviours which may actually be not at the level to 16 raise concern or not of a cause to raise concern of 17 sexual abuse, necessarily. 18 And the CAS may be currently involved, may 19 not be currently involved, may have been involved in the 20 past and she may provide treatment services in that type 21 of a circumstance. 22 MS. SUZAN FRASER: All right. And in the 23 cases where you do sort of become the primary liaison or 24 contact with Children's Aid Society, then you become the 25 person who actually gives evidence in Court.


1 Is that fair? 2 DR. MICHELLE SHOULDICE: Or probably one 3 (1) of the people. 4 MS. SUZAN FRASER: All right. And in 5 your experience it's not just the SCAN person who comes 6 where there's a question of abuse, there are other 7 physicians who might attend or are required to attend? 8 DR. MICHELLE SHOULDICE: In Court? 9 MS. SUZAN FRASER: Yes. 10 DR. MICHELLE SHOULDICE: I would say 11 typically there -- there is more than just the SCAN 12 physician that would attend, particularly in the types of 13 complex cases we've been discussing here. 14 MS. SUZAN FRASER: All right. 15 DR. DIRK HUYER: Although that -- that 16 has changed over the years. Probably, in my early years 17 and certainly from many years of my practice, I would be 18 the primary person who would attend, and the other 19 physicians would not attend and I would provide the 20 opinions that they had provided to me in testimony. 21 That changed over the late '90's to the 22 fact that more inclusive to involving more physicians to 23 get there opinion. So it was almost the consensus report 24 that I had written and then -- signed only by me, but 25 taking that information. And so that's changed now that


1 other physicians would now more -- much more frequently 2 be contacted and attend. 3 MS. SUZAN FRASER: And -- and I'm just -- 4 I'm standing here thinking about the -- the challenge 5 that a lawyer would be faced and somebody coming with the 6 reputation of the -- on behalf of all of the Hospital for 7 Sick Children's physicians in providing that sort of 8 consensus, that would be something -- if somebody wanted 9 to challenge that report, that might be a difficult for - 10 - thing for them to do. 11 DR. DIRK HUYER: It could be. 12 MS. SUZAN FRASER: All right. Just on a 13 final note, Dr. Shouldice, when you give evidence in 14 Court in a child protection proceeding do you get paid 15 for your services by whoever calls you as a witness? 16 DR. MICHELLE SHOULDICE: In a child 17 protection proceeding -- 18 MS. SUZAN FRASER: Yes. 19 DR. MICHELLE SHOULDICE: -- in Family 20 Court? 21 MS. SUZAN FRASER: Yes. 22 DR. MICHELLE SHOULDICE: So we charge 23 expert witness fees if we testify as an expert in Court. 24 MS. SUZAN FRASER: Yes. 25 DR. MICHELLE SHOULDICE: I personally


1 don't get that money -- 2 MS. SUZAN FRASER: Okay. 3 DR. MICHELLE SHOULDICE: -- because my 4 testimony would be provided on -- during the daytimes 5 when I am employed by the hospital -- 6 MS. SUZAN FRASER: Yes. 7 DR. MICHELLE SHOULDICE: -- and the 8 hospital pays me a salary. 9 MS. SUZAN FRASER: Right. 10 DR. MICHELLE SHOULDICE: That money comes 11 back to the hospital; it doesn't come to me personally. 12 MS. SUZAN FRASER: All right. So just in 13 terms of billing, the hospital bills your time and the 14 hospital has an account where the money is received. 15 DR. MICHELLE SHOULDICE: The -- my 16 secretary bills the time -- 17 MS. SUZAN FRASER: Yes. 18 DR. MICHELLE SHOULDICE: -- and the money 19 comes back into an account. 20 MS. SUZAN FRASER: I see. All right. 21 COMMISSIONER STEPHEN GOUDGE: Who fixes 22 your fee? 23 DR. MICHELLE SHOULDICE: It's the 24 Ministry of the Attorney General fee schedule that we 25 use.


1 COMMISSIONER STEPHEN GOUDGE: What is it? 2 DR. MICHELLE SHOULDICE: I couldn't tell 3 you, honestly. 4 COMMISSIONER STEPHEN GOUDGE: You just 5 go, Dr. Shouldice -- 6 DR. MICHELLE SHOULDICE: I just tell my 7 secretary -- 8 COMMISSIONER STEPHEN GOUDGE: -- and do 9 an -- 10 DR. MICHELLE SHOULDICE: -- I went to 11 Court and she does the billing. I honestly don't know. 12 DR. DIRK HUYER: As -- as I do bill 13 because I'm -- I'm not salary -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. DIRK HUYER: -- otherwise the fees 16 that the Ministry of Attorney General, as I understand 17 them to be -- and what I bill is a hundred and twenty- 18 five dollars ($125) per hour for testimony, a hundred 19 dollars ($100) per hour for -- for preparation of 20 reports. 21 COMMISSIONER STEPHEN GOUDGE: This is for 22 child protection cases? 23 DR. DIRK HUYER: No, this is -- no, that 24 would be Ministry of Attorney General, so the others 25 would be under the -- the different Ministry --


1 COMMISSIONER STEPHEN GOUDGE: Different-- 2 DR. DIRK HUYER: -- those are criminal 3 cases. And then Legal Aid rates are similar or a little 4 bit lower, and whenever I'm asked as far as defence 5 counsel, am I willing to accept Legal Aid rates, I say 6 yes. 7 So whatever the Legal rate -- Aid rates 8 are as well. I think they might be a touch lower, but 9 pretty close. 10 COMMISSIONER STEPHEN GOUDGE: Okay, 11 thanks. 12 13 CONTINUED BY MS. SUZAN FRASER: 14 MS. SUZAN FRASER: Does a hundred and 15 eight dollars ($108) an hour ring a bell? So, yeah -- 16 DR. DIRK HUYER: Yeah, that's why I say, 17 a touch lower, a little bit -- 18 MS. SUZAN FRASER: But that would -- 19 DR. DIRK HUYER: -- pretty close though. 20 Yeah. 21 MS. SUZAN FRASER: Just throwing that 22 out, because I think that's what the rate is, but I'm not 23 certain, Mr. Commissioner. 24 I think that I'm almost at the end and I 25 just -- on that issue then, Dr. Huyer, you said those are


1 the Ministry of the Attorn -- Attorney General rates, the 2 hundred and twenty-five dollars ($125) an hour, but 3 that's something that you would bill whether you were 4 attending in a child protection proceeding in Family 5 Court or in a criminal case? 6 DR. DIRK HUYER: No, I haven't attended 7 in a Family Court matter for a while -- 8 MS. SUZAN FRASER: I see. 9 DR. DIRK HUYER: -- but I -- I -- I 10 reduced the rates in Family Court to a hundred dollars 11 ($100) per hour in testifying, given that the -- it seems 12 to me the budgets are a little bit lower for the 13 Children's Aid Societies, because it's directly billed to 14 the Children's Aid Society, as far as funding goes. So 15 that had always been my approach to -- to utilize for 16 years. 17 MS. SUZAN FRASER: Thank you. Thank you, 18 those are my questions, Mr. Commissioner. 19 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 20 Fraser. 21 I think we're over to you, Ms. Ritacca, 22 next. 23 24 CROSS-EXAMINATION BY MS. LUISA RITACCA: 25 MS. LUISA RITACCA: Afternoon, doctors.


1 I will be addressing most of my questions to Dr. Huyer, 2 but I may on occasion, Dr. Shouldice, ask you for your 3 input as well. 4 Dr. Huyer, could I ask you to turn up 5 Volume IV, Tab 28, and that's PFP001546 if I've recorded 6 it correctly. 7 8 (BRIEF PAUSE) 9 10 DR. DIRK HUYER: Yes. 11 MS. LUISA RITACCA: This is the report 12 that you prepared in the Gaurov Case that Ms. Craig and 13 Ms. Rothstein brought you to both earlier this morning 14 and yesterday? 15 DR. DIRK HUYER: Yes. 16 MS. LUISA RITACCA: And do you recall why 17 you wrote a letter in this case to the Children's Aid 18 Society? 19 DR. DIRK HUYER: My recollection is that 20 I had initially contacted the Children's Aid Society, 21 given the concerns of child abuse or child maltreatment, 22 and there was -- my understanding also that there was a 23 sibling, at least one (1) sibling in the family, and the 24 Children's Aid Society were likely of need for 25 information to present to the Family Court to support


1 their -- to support their apprehension of the other 2 child, as I recall. 3 MS. LUISA RITACCA: And -- and can -- can 4 you help us understand why a discussion about injuries on 5 one (1) child are -- are important for the Children's Aid 6 Society with respect to remaining children? 7 DR. DIRK HUYER: Depending on how 8 injuries may have occurred, and the -- the source of 9 those injuries, if it was within a family unit there's 10 well documented risk to another child within the same 11 family unit. That's documented through literature and 12 through experience that there is risk of danger to 13 another child within the same family unit. 14 MS. LUISA RITACCA: And so is it fair to 15 say that in this case, as an example, what's primarily 16 the most relevant information for the Children's Aid 17 Society, is your clinical finding with respect to the 18 injuries, and not the cause of death, as it were? 19 DR. DIRK HUYER: Oh, I think that both 20 would be of importance to the Children's Aid Society, but 21 the -- as much information that they can have, as early 22 that they can have it, because after an apprehension, 23 there's a mandated attendance at Family Court within five 24 (5) days to show that that apprehension is warranted. 25 And there's an opportunity for judicial review at that


1 point. 2 And so within those five (5) days, they 3 need to build -- or prepare their case to illustrate 4 their -- if they believe the apprehension was warranted, 5 to demonstrate why that was warranted to the -- the 6 justice -- to the -- to the judge that would be presiding 7 at that point. 8 COMMISSIONER STEVEN GOUDGE: Does the 9 literature, Dr. Huyer, say anything about the degree to 10 which the risk is increased as a result of one (1) 11 incident with one (1) child for another child? 12 DR. DIRK HUYER: I don't believe so, but 13 I don't know for sure. 14 COMMISSIONER STEVEN GOUDGE: And do you 15 know, Dr. Shouldice? 16 I mean, I'm interested in two (2) things. 17 First, if that is the kind of thing that anybody can ever 18 put any kind of assessment on, in terms of the degree of 19 increased risk. 20 And secondly, whether there is any sense 21 of how imminent the risk is; that having harmed a child 22 once, or allegedly harmed a child once, how likely it is 23 that very soon after that the risk arises for another 24 child. 25 And the reason I raise the second is that


1 a number of the cases we have examined show the CAS 2 moving instantaneously if they can, immediately following 3 an alleged criminal event. 4 DR. DIRK HUYER: And I can tell you I've 5 had one-off cases where that's occurred in -- in twins, 6 and in one (1) child who's admitted to hospital with an 7 abusive injury, and then the second child was injured 8 while that child was in hospital. So I can tell you 9 anecdotally I've seen that. 10 COMMISSIONER STEVEN GOUDGE: Yes, right. 11 DR. DIRK HUYER: But I don't think 12 there's any easy way you could develop research that 13 would be able to do it, because it's -- deaths in 14 children in child maltreatment are thankfully uncommon. 15 COMMISSIONER STEVEN GOUDGE: Right. 16 DR. DIRK HUYER: And so given that 17 uncommonness, and given the multiple risk factors, and 18 the risk -- risk constructs that -- 19 COMMISSIONER STEVEN GOUDGE: It would be 20 very hard to -- 21 DR. DIRK HUYER: Extremely difficult to 22 be able to -- 23 COMMISSIONER STEVEN GOUDGE: -- deal 24 with. 25 DR. DIRK HUYER: -- illustrate in -- in a


1 good demonstrative way, I think. 2 COMMISSIONER STEVEN GOUDGE: I take it 3 you agree with that, Dr. Shouldice? 4 DR. MICHELLE SHOULDICE: I agree. 5 COMMISSIONER STEVEN GOUDGE: Yes. 6 7 CONTINUED BY MS. LUISA RITACCA: 8 MS. LUISA RITACCA: Just so the record's 9 clear on this case, Commissioner, if we flip the tab to 10 Tab 29, and this is -- I don't think we need to go there, 11 but just because of your question, Commissioner -- it's 12 PFP001505. This is the social work report from the 13 Hospital for Sick Children. It's -- on the fifth page. 14 It indicates that Gaurov's older sibling 15 was apprehended by the Children's Aid Society on March 16 20th, 1992. So actually apprehended in advance of Dr. 17 Huyer's report. 18 DR. DIRK HUYER: Right. And my -- my 19 report was dated March 23rd, which would be consistent 20 with my earlier opinion that I was providing it to -- at 21 the request of the Children's Aid in a -- a more rapid -- 22 COMMISSIONER STEVEN GOUDGE: Within the 23 five (5) day window of justification. 24 DR. DIRK HUYER: Correct. 25


1 CONTINUED BY MS. LUISA RITACCA: 2 MS. LUISA RITACCA: And, Dr. Huyer, was 3 the Children's Aid Society accustomed to getting reports 4 from you, as a child maltreatment expert? 5 DR. DIRK HUYER: Oh, yes. 6 MS. LUISA RITACCA: And was it your 7 impression that they knew the limits of your expertise? 8 DR. DIRK HUYER: On an ongoing basis, or 9 in -- in that -- at that timeframe? Which -- which are 10 you referring to? 11 MS. LUISA RITACCA: In this timeframe. 12 DR. DIRK HUYER: I don't know. I suspect 13 so, because the -- when there's a -- and I -- I'll give 14 you the reasons why I suspect, but don't know for sure. 15 When there's a situation such as a death, 16 certainly Dr. Robertson would have know the level of 17 experience I had. She'd been the Medical Director and 18 involved around that time, prior to my arrival, so I knew 19 her and she knew of me. So she definitely would have 20 known my limitations. 21 MS. LUISA RITACCA: And would she of had 22 any reason to believe that you had forensic pathology 23 expertise? 24 DR. DIRK HUYER: I think that would be 25 doubtful.


1 MS. LUISA RITACCA: Okay. And just to 2 follow-up, Dr. Shouldice, with you on a line of 3 questioning that started off with mith -- Ms. Rothstein 4 yesterday, and continued with Ms. Davies this morning, I 5 just want to clarify some confusion in -- in my own mind. 6 I'm not sure if it's in anybody else's mind. 7 Between when you take a medical history 8 and when you take psycho -- psychosocial assessment -- so 9 this is how I understood your evidence in the last two 10 (2) days, and let me know if I'm wrong. 11 The psychosocial assessment, if it is 12 done, it is done by a social worker? 13 DR. MICHELLE SHOULDICE: Yes. 14 MS. LUISA RITACCA: Okay. And will not 15 be done in cases of obvious criminal activity? Or 16 obvious -- highly suspicious activity? 17 DR. MICHELLE SHOULDICE: Would not be 18 done in cases where there's significant suspicion of 19 child abuse. 20 MS. LUISA RITACCA: All right. Is done 21 in what we've been calling the grey zone cases. 22 DR. MICHELLE SHOULDICE: Yes. 23 MS. LUISA RITACCA: All right. And then 24 if we flip to the history, and when you use the word 25 "history", I -- I took you to mean medical history.


1 DR. MICHELLE SHOULDICE: Yes. 2 MS. LUISA RITACCA: And that's not unlike 3 any doctor or clinician would -- would do as part of his 4 or her practice in seeing a patient. 5 DR. MICHELLE SHOULDICE: Right. 6 MS. LUISA RITACCA: Okay. And so do you 7 always do a medical history in every circumstance? 8 DR. MICHELLE SHOULDICE: So we always 9 obtain a medical history. Remember that when we are 10 consulted in cases -- particularly cases such as those 11 that we're discussing here of very severe outcomes in 12 children -- those children have already been seen in our 13 hospital by several nurses and several physicians and 14 extensive medical history is typically already documented 15 in the chart, probably from more than one (1) hospital. 16 Usually the child goes to another hospital 17 first and is transferred to us. So, I would definitely 18 review that historical information in the chart, and then 19 any further medical history that would be required, I 20 would gather at some point. 21 MS. LUISA RITACCA: And now what do you 22 mean by "at some point"? 23 DR. MICHELLE SHOULDICE: So probably -- 24 MS. LUISA RITACCA: Mm-hm. 25 DR. MICHELLE SHOULDICE: -- in cases like


1 these where the concern is significant of the possibility 2 of child abuse and an investigation is going to occur -- 3 MS. LUISA RITACCA: Yes. 4 DR. MICHELLE SHOULDICE: -- the 5 investigative interviews would occur first and then any 6 subse -- any direct contact between myself and the family 7 would probably occur after those interviews -- 8 MS. LUISA RITACCA: Oh, I see. 9 DR. MICHELLE SHOULDICE: -- in -- 10 typically, in most cases. 11 MS. LUISA RITACCA: Thank you. And, Dr. 12 Huyer, during your tenure with the SCAN Team, on average, 13 if you're able to say, how many children that were seen 14 by such -- the SCAN Team actually ended up dying? 15 DR. DIRK HUYER: It thankfully was an 16 infrequent occurrence. I would say in the range of two 17 (2) to three (3) per year. 18 MS. LUISA RITACCA: And, Dr. Shouldice, 19 is that a reasonable figure for today? 20 DR. MICHELLE SHOULDICE: Yes, I would 21 have said one (1) to two (2) per year; perhaps we've been 22 up to three (3), but that would be reasonable, yeah. 23 MS. LUISA RITACCA: And, Dr. Huyer, 24 following up a bit on the first line of questioning when 25 I asked you about the Gaurov case, how do you balance the


1 need to provide cautious and well thought out opinions 2 about injuries in -- in a child death case, and -- and 3 particularly, in cases where there may not -- a 4 definitive answer may not be possible, with the time- 5 sensitive concerns in child protection cases? 6 DR. DIRK HUYER: I -- I've been involved 7 in a number of those cases; I think I've commented on a 8 few of them yesterday. Over the years, and it's been 9 some degree frustrating to me in the -- the fact that the 10 timeliness has not necessarily been as prompt as one may 11 like, the children -- Children's Aid Society and I think 12 society, in general, would be supportive of -- and 13 Children's Aid do do this, as -- as commented early -- 14 just a minute ago by the Commissioner, when a child dies 15 and there's suspicious circumstances, the other child is 16 likely, almost for sure, going to be removed from that 17 home environment. 18 How long that child may remain out of the 19 home environment is a real issue that I think needs to be 20 recognized and addressed in some manner because reports 21 from the pathology department can take upward of seven 22 (7) to eight (8) months. 23 And when there's an issue that's not 24 straightforward, that this isn't a straightforward injury 25 as a clear obvious inflicted injury, like a gunshot wound


1 or something of that nature, and it's an abusive head 2 trauma case where there may be other potential 3 explanations that need to be considered and evaluated 4 through additional testing, it puts a real hold on that 5 child who's been removed in that family's life. 6 And so I think it behoves the organization 7 to try to make -- make those cases priorities. So I 8 think they should be moved up the list. I recognize 9 there's a large volume of work to be done in -- in each 10 individual case and also the totality of cases, but I 11 think that these cases need to be recognized as -- as a 12 large priority, especially if it's a younger child, 13 because if a child's taken out of the home at age six (6) 14 months, and it takes six (6) months to sort through this 15 problem, the amount of development that's occurred that 16 time, during that timeframe, is substantial. 17 And our child -- Child and Family Services 18 Act recognizes the importance of that timeframe and -- 19 and getting to a better and a quicker response. The -- 20 the question is can other things be done to try to answer 21 these questions more quickly. 22 And I think that -- it's my understanding 23 that the Coroner's Office does try to facilitate 24 answering these questions prior to the final autopsy 25 report being available. And I think that if there could


1 be -- I think that it needs to be remembered about the 2 importance and -- and involving various professionals; 3 not just the forensic pathology people in these sorts of 4 cases where I think there are other clinicians who might 5 have been involved prior to death. 6 Say it was a case where the suspected 7 Child Abuse and Neglect Team was involved prior; the 8 opthamologist was involved, the neurosurgeon was 9 involved, the intensive care unit physician was involved. 10 I think they can provide some significant input to help 11 make some early decisions, if possible, coupled with the 12 forensic pathologist in their preliminary findings. 13 MS. LUISA RITACCA: And -- and how do you 14 communicate with the Family Court -- let's stick with 15 child protection issues -- that -- that there is the 16 ongoing effort to -- to find the answer, and that there 17 may not be a definitive answer, where the Family Court 18 needs an answer, you said, within five (5) days in some 19 circumstances? How -- how do you deal with that? 20 DR. DIRK HUYER: What I've seen, 21 historically, happen is that a letter's been written by 22 either the Deputy Chief Coroner or somebody that's in a 23 senior position with the Coroner's office giving brief 24 information that there's significant concern of 25 maltreatment -- something of that nature.


1 And that the -- my understanding is that 2 the Family Court judges have accepted that as ample 3 evidence to maintain the Children's Aid following the 4 pathway which they've followed which is keeping that 5 child out of that particular environment. 6 They may develop some approaches -- some 7 creative approaches -- of other family members moving in 8 or the child being placed in -- in another family setting 9 with parents having liberal access. 10 There's a variety of approaches that are 11 utilized by the Children's Aid Society, but I think that 12 the communication would occur from whoever in the senior 13 management at the Coroner's Office or whoever's managing 14 that -- that case in the priority focus then communicates 15 directly with somebody identified at the Children's Aid 16 Society who would be in a -- a senior role, as well so 17 that there's a direct line of communication between the 18 two (2). 19 MS. LUISA RITACCA: And do you see a role 20 for SCAN in -- in that com -- prioritizing of -- of those 21 types of cases, even where there's been a death then? 22 DR. DIRK HUYER: I -- I see a role of not 23 just SCAN but other clinicians with expertise in injury 24 analysis depending on the type of injury that that child 25 may have suffered that may have lead to their death.


1 I see a role in -- in any of those 2 providing input into the process and the understanding of 3 what may have lead to the child dying; albeit that the 4 forensic pathologist would have the ultimate final 5 opinion and the Coroner's Office would receive that 6 opinion. 7 But I think in the -- in the process, the 8 forensic pathologist can gain information from the 9 previous involvement from those clinicians and utilize 10 that in their formulation of their opinion. 11 And also, they may be able to come up with 12 a -- a preliminary opinion that requires additional 13 testing from the forensic pathology perspective, but this 14 is the clinical one, similar to what I did in the Gaurov 15 case; gave my clin -- clinical opinion. 16 And that -- but -- but in this case, with 17 the participation of the forensic pathology. And fine 18 tuning exactly how that would work, I think would be 19 case-by-case specific, but I think that it's important 20 that information moves -- all information's gathered as 21 quickly as possible and that may -- and then there's a -- 22 a preliminary opinion provincially provided and then what 23 additional work is -- is quickly recognized as need to be 24 done and then that's prioritized in whatever way 25 possible.


1 COMMISSIONER STEPHEN GOUDGE: The ideal 2 would be to get the full post-mortem report -- 3 DR. DIRK HUYER: That's -- 4 COMMISSIONER STEPHEN GOUDGE: -- as 5 quickly as possible because that's the best information? 6 DR. DIRK HUYER: Right. And I think 7 that the forensic pathologist needs to be -- fully 8 informed and ensure that full information from all -- 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 DR. DIRK HUYER: -- the clinicians is 11 available to the forensic pathologist. 12 COMMISSIONER STEPHEN GOUDGE: Yes. In 13 the experience of the SCAN team, is it the pathology 14 report that is most -- where there is a significant 15 delay, is that the cause? 16 DR. DIRK HUYER: I -- I can only speak 17 for my time during the SCAN Program. Those pathology 18 reports were rarely provided to SCAN, and SCAN was rarely 19 involved in that -- in that decision process -- 20 COMMISSIONER STEPHEN GOUDGE: Okay. But 21 when you spoke of -- when you spoke of the concern over 22 delay before a final determination about protection could 23 be made, implicit -- 24 DR. DIRK HUYER: That would be my role -- 25 COMMISSIONER STEPHEN GOUDGE: -- in that


1 was the problem is the pathology report. 2 DR. DIRK HUYER: Correct. And that was 3 my role as a coroner. And my experience in -- in 4 receiving pathology reports in my investigations as a 5 coroner and also as a child maltreatment consultant to 6 Children's Aid Society. 7 COMMISSIONER STEVEN GOUDGE: Right. 8 DR. DIRK HUYER: So Peel Children's Aid 9 Society will call me and say, Can you learn what the 10 pathology showed? We're trying to case plan here. 11 COMMISSIONER STEVEN GOUDGE: Right. 12 DR. DIRK HUYER: And, so I would direct 13 them to the proper protocol in receiving that 14 information. 15 COMMISSIONER STEVEN GOUDGE: Right. So 16 from your experience, the pathology report is the timing 17 bottleneck, if one had to identify one. 18 DR. DIRK HUYER: That certainly has been 19 my experience, yes. 20 COMMISSIONER STEVEN GOUDGE: Yeah, and 21 within that, I take it, it would be things like 22 histology, toxicology; those sorts of secondary testings 23 that would be the cause of the -- 24 DR. DIRK HUYER: Yeah. The volume of 25 work as well, and in clinical work that has to be done.


1 So I think that it's not just the testing results. 2 I think the testing results can be 3 available more quickly, but it's then getting to that 4 case in amongst the other cases that need to be done, 5 amongst the other work that needs to be done. 6 COMMISSIONER STEVEN GOUDGE: Well, that's 7 the pathologist getting to the work. 8 DR. DIRK HUYER: Correct. 9 COMMISSIONER STEVEN GOUDGE: Yeah. 10 DR. DIRK HUYER: Right. 11 COMMISSIONER STEVEN GOUDGE: Okay. 12 Thanks, Ms. Ritacca. 13 14 CONTINUED BY MS. LUISA RITACCA: 15 MS. LUISA RITACCA: And, Dr. Huyer, you - 16 - you anticipated my last set of questions, because I am 17 going to ask you to put on your coroner's hat now. 18 Earlier in the week, we heard from Dr. 19 Lauwers, and Dr. Edwards, and Dr. Lucas. They were asked 20 by the Commissioner with regard to whether there would be 21 value in setting up some kind of system where certain 22 cases were triaged to particular coroners, depending on 23 the nature of the case, and the particular skillset of 24 the coroner. 25 So for example, given your expertise in


1 child maltreatment, you would be called in for all 2 complex suspicious child death within a certain area. 3 I'm interested in whether or not you see there's a value 4 in setting up some kind of triage system like that? 5 DR. DIRK HUYER: There would definitely 6 be value. It's the practicality of doing that in the 7 Province of the size that we have, and the -- the 8 infrequency of these cases. 9 So if I can take that little further down 10 the road, Commissioner, in fact, I offered to do that. I 11 offered to do that a number of years ago to -- when I 12 left Sick Kids, I offered -- excuse me -- to be the child 13 maltreatment -- 14 COMMISSIONER STEVEN GOUDGE: To the OCCO? 15 DR. DIRK HUYER: Yeah, to the OCCO. And 16 that I would go wherever and be available if transport 17 could be provided to me. It was an enthusiastic offer, 18 shall we say, because it didn't see -- it wasn't 19 practical as far as distances go. So that's one (1) 20 issue, is distances. 21 Then the infrequency of these is another 22 impracticality. So if there was say, four (4) or five 23 (5) identified across the Province to cover-off 24 geographic area, the infrequency would limit the ability, 25 I think, to be immediately available.


1 So if I was ready for that, I still have 2 my other call commitments, and my other practice 3 commitments, which if I had to go a distance would not 4 allow that to happen. 5 Secondarily, it -- it takes away, I think, 6 from the potential broad knowledge that our coroner 7 system tends to bring to death investigations. So each 8 individual coroner tends to have a broad knowledge of 9 investigation, and should then have the support of a 10 Regional Supervising Coroner, or the -- the Centres of 11 Excellence, or the -- the -- individual forensic 12 pathology units that can then support through and -- and 13 help with the further diagnosis of those cases. 14 Now, there is -- there are cases 15 transferred. So I've had -- one (1) of the reasons 16 supervising coroners call me after an initial 17 investigation was done and then I took over the 18 investigation because of my expertise in the area of 19 child maltreatment, but that isn't a frequent occurrence. 20 But that has happened. 21 And so that opportunity remains for the 22 office and that process to occur, again depending on 23 availability and depending on practical considerations. 24 So in theory, I think it's a reasonable 25 consideration, but I think that much of the work is done


1 by the forensic pathologist in a criminally suspicious 2 case. 3 So if in fact protocols are set up -- and 4 I think this is a position -- a place for potential 5 protocols, because these are identifiable situations. So 6 it's an identifiable case of a -- a potentially 7 criminally suspicious case in a child. Then you can have 8 a protocol, because it's fairly uncommon and it can be 9 facilitated, and then the forensic pathologist would do 10 more of the work than the coroner would, generally 11 speaking. 12 And then there's the oversight 13 availability, and the -- and the resource availability of 14 the regional supervising coroners. So I think they, in 15 the role of the regional supervising coroner, has to have 16 some degree of expertise and knowledge. If not 17 immediately of the -- the -- the pathology or the -- the 18 medical findings, at least be able to link in quickly to 19 somebody who can guide that process in the right way. 20 MS. LUISA RITACCA: And my last area for 21 you, Dr. Huyer, again as your role as coroner, you spoke 22 yesterday about how you testified on many occasions as a 23 child maltreatment expert, and you also said you 24 testified as a coroner and I'd like to ask you about your 25 experience testifying as a coroner.


1 Can you describe when you would typically 2 be asked to give evidence as a coroner? 3 DR. DIRK HUYER: It's an infrequent 4 occurrence, but I mean, I'm always testifying as a 5 coroner, because I've always been a coroner. But 6 seriously, I -- the -- when I have been asked 7 specifically in my role as a coroner, the occasions have 8 been either as a factual witness, but I end up being 9 qualified as an expert, but as a factual witness to 10 describe the scene evaluation that I observed when I went 11 in. 12 And I probably would be called a little 13 more frequently again, because of the volume of work that 14 I do, the number of criminally suspicious cases I've been 15 involved with. So I may have more awareness of -- of 16 noting information such as that and testifying about it. 17 But I've also testified about the findings 18 on initial observation of the body. And that, generally 19 speaking, has not been injuries, but the lividity pattern 20 and the rigour mortis pattern, and how they were 21 positioned at the time of the -- the initial death 22 investigation and the significance of those findings. 23 MS. LUISA RITACCA: And when you're 24 giving evidence as a coroner in those circumstances, how 25 do you articulate the limits of your expertise?


1 DR. DIRK HUYER: Just as I do in any 2 other area. I limit myself to what areas I feel that I 3 confidently can provide testimony as an expert. In some 4 occasions, it's limited by the qualifications by the 5 Justice -- 6 MS. LUISA RITACCA: Yes. 7 DR. DIRK HUYER: -- by the Crown and the 8 defence agreement, but essentially I would not be 9 testifying about injuries in -- in the deceased if in 10 fact there was a forensic pathologist that was involved 11 and spoke about how that injury may have contributed. 12 I may comment on the fact that I observed 13 injuries, but then when asked, Well what was the 14 significance of that injury, I say, Well I'm aware that 15 there was an autopsy done by a forensic pathologist and 16 for -- from my perspective, I'm not a pathologist, and I 17 didn't therefore analyse the significance of that 18 mechanism and how it contributed to the death. So I'll 19 acknowledge and recognize there's an injury. I don't 20 have a problem seeing injuries on bodies, that's straight 21 forward. 22 And there may be a pattern injury that I 23 can say, Well, that pattern to me was likely this, but 24 how it contributed and led to the death, I would defer 25 that to the forensic pathologist. That's exactly what I


1 do. I say, Well I would defer that opinion to the 2 forensic pathologist who I know is involved. 3 MS. LUISA RITACCA: And is it your 4 impression that the trier of fact, Judge, jury, is able 5 to understand the limits of your expertise? 6 DR. DIRK HUYER: Hm -- 7 MS. LUISA RITACCA: Or I'm sorry, or 8 understand that there are limits to your expertise when 9 it comes to death investigation? 10 DR. DIRK HUYER: I guess I would look to 11 the Commissioner and other counsel within the room to see 12 if they understood me over the past two (2) days. I -- I 13 think that I articulate it fairly carefully and fairly 14 rigidly, and I'm fairly boundaried about that. 15 And I will continue to say as I may have 16 demonstrated this morning in repeating myself in an 17 answer, that that's outside of my area of expertise. I 18 do not feel confident in testifying about that. I have 19 more knowledge than many, but I don't believe that that's 20 an area that I should be testifying in. 21 And I'll tell you that Crowns and -- and 22 defence have said to me, Well, I appreciate that's your 23 thought, but could you just please answer that question. 24 And I say, No, I don't feel comfortable answering that 25 question.


1 And then sometimes the opposing counsel 2 will rise, sometimes the judge will comment, sometimes 3 the jury will be asked to leave. But generally speaking, 4 I stay rigid with that. And another example of that is 5 when being asked whether I believe it's child abuse or 6 not, and I say from my perspective, irrespective of 7 what's written in my report, from my perspective when I'm 8 testifying I think that that's -- that's a decision for 9 the trier of fact. 10 And the Crown will still say, But in your 11 report it says that, and obviously if they ask me the 12 question what's in my report and they read it to me, I 13 answer the question. But I -- I try to maintain that 14 boundary that I -- well my interpretation of how the 15 injury might happened, I believe that it's up to the 16 trier of fact to determine if it's pending a criminal 17 act. 18 MS. LUISA RITACCA: Thank you. Those are 19 my questions. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 21 Ritacca. And I think you have told us, Dr. Huyer, that 22 one (1) of the things you teach is observance of 23 expertise in giving evidence? 24 25 DR. DIRK HUYER: Yes.


1 COMMISSIONER STEPHEN GOUDGE: Has the 2 attitude to that amongst the medical professionals 3 involved with the Court System changed, developed, become 4 -- has there been more awareness of the importance of 5 that over the last ten (10) years? 6 DR. DIRK HUYER: Of observing? 7 COMMISSIONER STEPHEN GOUDGE: Yes. 8 Recognizing that obviously the responsibility for that 9 does not rest only with the professional, far from it. 10 There are other actors in the system that are designed to 11 ensure staying within expertise, but just in terms of the 12 way evidence is initially offered? 13 DR. DIRK HUYER: Do you mean observance 14 of the boundaries by the expert themselves? 15 COMMISSIONER STEPHEN GOUDGE: Yes. 16 DR. DIRK HUYER: I think that that's 17 developing, but I think that there still is a fair room 18 for improvement. 19 COMMISSIONER STEPHEN GOUDGE: You are 20 nodding, Dr. Shouldice? 21 DR. MICHELLE SHOULDICE: I'd agree. 22 COMMISSIONER STEPHEN GOUDGE: I see. Is 23 that an area that -- the kinds of education that both of 24 you were involved with is directed to? I assume that 25 that is part of the way over this hurdle?


1 DR. MICHELLE SHOULDICE: To some extent, 2 yes, but I think it is an area that still -- there's 3 still a long way to go in terms of why recognition of 4 what the limits are of what we can say. 5 COMMISSIONER STEPHEN GOUDGE: What are 6 ways to enhance understanding of the importance of that? 7 I mean, surely education is the biggest way, at least for 8 the expert. Clearly vigilance on the part of the actors 9 in the Court system is also vital and needs to be 10 enhanced. 11 But from the prospective of the expert, is 12 there anything that you can think of in addition to 13 education by people such as yourselves? It is a 14 critically important issue and one that has been front 15 and centre in what we have heard. 16 DR. MICHELLE SHOULDICE: I don't know 17 what there -- what there could be besides education -- 18 COMMISSIONER STEPHEN GOUDGE: Yes, I do 19 not either, but we would welcome any thoughts. 20 DR. MICHELLE SHOULDICE: But I think -- I 21 think -- I really do think that a large part of -- of 22 those boundaries needs to be -- to come from the legal 23 side. 24 COMMISSIONER STEPHEN GOUDGE: Yes, I 25 agree.


1 DR. MICHELLE SHOULDICE: Because I just - 2 - the -- I think from a physician's perspective, if 3 they're repeatedly asked questions that are outside their 4 area of expertise, I think it's -- unless you've had 5 significant experience in this area, I think it's 6 difficult to even -- 7 COMMISSIONER STEPHEN GOUDGE: Having the 8 confidence to resist and say, I cannot answer is a -- 9 DR. MICHELLE SHOULDICE: Absolutely. 10 COMMISSIONER STEPHEN GOUDGE: -- neat 11 trick. 12 DR. MICHELLE SHOULDICE: Yeah, 'cause you 13 think you're supposed to answer the question. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. MICHELLE SHOULDICE: So I think if 16 you're repeatedly asked the same kinds of questions over 17 and over again, it's a difficult -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 Okay. That is helpful. Thank you. 20 DR. DIRK HUYER: And I -- 21 COMMISSIONER STEPHEN GOUDGE: Dr. 22 Huyer...? 23 DR. DIRK HUYER: Sorry, I -- I do -- 24 COMMISSIONER STEPHEN GOUDGE: No, sorry, 25 Dr. Huyer.


1 DR. DIRK HUYER: -- I do -- I've -- it's 2 an example of how the education hasn't been necessarily 3 successful. Every summer I attend Crown school to 4 provide education and expert testimony; so working with 5 the legal people who are going to be calling the experts, 6 and I still continue to be amazed at the number of times 7 that I am called -- and I'm going to testify as an 8 expert, and I'm not prepped. 9 And -- and they haven't even called an 10 expert before ever. They meet me half an hour before and 11 they go, We've never called -- I've never called an 12 expert, how do you do this? So I'm telling the Crown 13 attorney how to qualify me as an expert, what process to 14 follow. 15 And it's -- it's unbelievable to me at 16 times that that can continue to happen despite my best 17 efforts. Because I say, Look, I'll come meet with you or 18 we'll have an email conversation or I'll -- I make myself 19 available, which in uncommon within the medical field 20 because basically I sit at home all the time, and so I'm 21 available to do that in contrast to Dr. Shouldice who 22 would be working -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. DIRK HUYER: -- actively at the 25 hospital.


1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. DIRK HUYER: And it -- it just 3 continues to surprise me that that happens. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. DIRK HUYER: And then the questions 6 will come during the prep that are totally outside of -- 7 even -- we've even talked about the area of expertise and 8 fine tuned it, as we talked about yesterday, and they're 9 still asking questions that would be -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. DIRK HUYER: -- broad from that. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. DIRK HUYER: And then I -- I think 14 again, my -- my -- to echo on what Dr. Shouldice has 15 said, I've watched many people testify. And when you get 16 asked the same question or you get -- and you swear to 17 tell the truth, the whole truth, and nothing but the 18 truth, you think you're supposed to answer -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. DIRK HUYER: -- and -- and so it's a 21 very challenging area for us. It's totally foreign -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DIRK HUYER: -- to physicians to come 24 into this -- not this, but into -- 25 COMMISSIONER STEPHEN GOUDGE: No, I


1 recognize that, and I -- part of our task is to see what 2 we can do about that. 3 Mr. Carter...? 4 5 (BRIEF PAUSE) 6 7 CROSS-EXAMINATION BY MR. WILLIAM CARTER: 8 MR. WILLIAM CARTER: Thank you, 9 Commissioner. Dr. Shouldice, I just have a couple of 10 questions arising out of some of your earlier evidence 11 today. 12 The first deals with the subject of peer 13 review. You mentioned at some point in your evidence 14 that there was a formalized process of peer review in the 15 SCAN Team, as it's currently constituted. Can you expand 16 on that, please? 17 DR. MICHELLE SHOULDICE: So the current 18 process for physical abuse cases -- I'll stick with 19 physical abuse cases, has -- occurs in our team meetings. 20 So twice weekly, we sit in our team 21 meetings with the entire SCAN Team. All cases that 22 involve in-patients, or significant injuries in children 23 who are not necessarily admitted to hospital are reviewed 24 amongst the group of us, and the -- our opinions are 25 discussed.


1 And if there is disagreement, or 2 suggestions, those are taken forward then to -- to result 3 in further evaluation, or further outside opinions, or 4 further peer review by external people, if necessary. 5 MR. WILLIAM CARTER: Where would you go - 6 - when you say "external people", you mean external to 7 the SCAN team, or to the hospital, or both? 8 DR. MICHELLE SHOULDICE: Sometimes. 9 Sometimes both. 10 MR. WILLIAM CARTER: Okay. 11 DR. MICHELLE SHOULDICE: And, so that's 12 when -- 13 COMMISSIONER STEVEN GOUDGE: Like Dr. 14 Huyer. 15 DR. MICHELLE SHOULDICE: -- it's -- might 16 be Dr. Huyer -- 17 COMMISSIONER STEVEN GOUDGE: Yeah. 18 DR. MICHELLE SHOULDICE: -- it may be -- 19 it may be others within the child abuse community. 20 The other form of -- of peer review, or 21 peer discussion, that we have is having Dr. Huyer come to 22 the program on a monthly basis, and we sit down and have 23 case discussions. 24 He brings case -- cases for discussion. 25 We present -- present ours for discussion. And again,


1 it's a form of peer review; peer discussion between us 2 around cases. 3 4 CONTINUED BY MR. WILLIAM CARTER: 5 MR. WILLIAM CARTER: Okay. And I take it 6 this takes place in respect of those cases that are 7 considered opened files, as it were, that the team is 8 dealing with? 9 DR. MICHELLE SHOULDICE: Some may be open 10 files; some may be -- it depends how you define "open 11 files" -- a child that we've recently seen. Some may be 12 cases which are coming up for -- where a question has 13 been raised by somebody, or children who have represented 14 to hospital with further injuries. They could be cases 15 where someone has raised a concern of some sort. 16 MR. WILLIAM CARTER: Okay. I guess what 17 I'm trying to explore is how a case finds its way onto 18 your agenda? 19 I suppose there are cases that under 20 active investigation at the hospital. 21 DR. MICHELLE SHOULDICE: Yeah. So most 22 of the cases would be recent cases -- 23 MR. WILLIAM CARTER: Yeah. 24 DR. MICHELLE SHOULDICE: -- currently 25 ongoing cases.


1 MR. WILLIAM CARTER: But it's not limited 2 to those? 3 DR. MICHELLE SHOULDICE: That's correct. 4 MR. WILLIAM CARTER: Okay. 5 COMMISSIONER STEVEN GOUDGE: Just -- 6 sorry, Mr. Carter. 7 I think you said yesterday, Dr. Shouldice, 8 that there is not any sort of standardized way of 9 actually reviewing reports that go out of the SCAN office 10 into the Court system. But I -- 11 DR. MICHELLE SHOULDICE: That's correct. 12 COMMISSIONER STEVEN GOUDGE: -- but I 13 take it you -- would you feel it was a step forward to 14 introduce something like that? 15 Where, for example, and I look at you as 16 the Head of the SCAN team, have a responsibility for 17 reviewing reports before they go into the Justice System? 18 DR. MICHELLE SHOULDICE: I don't think 19 logistically I could do that. 20 COMMISSIONER STEVEN GOUDGE: It is just - 21 - there -- what -- it is -- 22 DR. MICHELLE SHOULDICE: Too -- too many; 23 too much work; not enough time. 24 COMMISSIONER STEVEN GOUDGE: I see. Fair 25 enough. Fair enough.


1 DR. DIRK HUYER: In -- in my -- 2 COMMISSIONER STEVEN GOUDGE: But -- 3 DR. DIRK HUYER: -- my experience within 4 the peer review team -- team meeting processes, generally 5 speaking, the -- there would be -- generally speaking, a 6 consensus opinion about the case -- 7 COMMISSIONER STEVEN GOUDGE: Right. 8 DR. DIRK HUYER: -- following that. Not 9 always, but generally speaking. 10 COMMISSIONER STEVEN GOUDGE: Right. 11 DR. DIRK HUYER: So I think that that -- 12 COMMISSIONER STEVEN GOUDGE: So that that 13 covers it up? 14 DR. DIRK HUYER: Not necessarily. That 15 was the step that was taken that was logistically 16 available and practically available. 17 COMMISSIONER STEVEN GOUDGE: Okay. 18 DR. MICHELLE SHOULDICE: That's what I 19 meant, when I said the content of those reports would 20 have been reviewed, but not the actual -- 21 COMMISSIONER STEVEN GOUDGE: Not the -- 22 DR. MICHELLE SHOULDICE: -- written 23 report. 24 COMMISSIONER STEVEN GOUDGE: -- not the 25 actual language.


1 DR. MICHELLE SHOULDICE: Yes. 2 COMMISSIONER STEVEN GOUDGE: Yeah. 3 Thanks, Mr. Carter. 4 5 CONTINUED BY MR. WILLIAM CARTER: 6 MR. WILLIAM CARTER: Yeah. The other 7 thing you might do is consider the development of 8 standard approaches to certain types of reporting, 9 without necessarily formulating a -- a standard type of 10 report? 11 DR. MICHELLE SHOULDICE: There is a 12 standard approach -- 13 MR. WILLIAM CARTER: Okay. 14 DR. MICHELLE SHOULDICE: -- to producing 15 a report, amongst the three (3) of us that provide the 16 primary evaluations in these cases. 17 MR. WILLIAM CARTER: Okay. So you -- you 18 have a framework for approaching the preparation for 19 reports? 20 DR. MICHELLE SHOULDICE: Yes. 21 MR. WILLIAM CARTER: And you have a 22 method of discussing among your peers and colleagues the 23 conclusions that are reached and then formulated by the 24 person who has the task of preparing the report. 25 DR. MICHELLE SHOULDICE: Yes.


1 MR. WILLIAM CARTER: Okay. The other 2 matter I just wanted to address with you relates to the 3 opportunity that might be afforded to the team by 4 reviewing transcripts of evidence or indeed decisions and 5 reasons for decisions that come from the Judicial System. 6 It's been mentioned, both to this panel 7 and to other witnesses who have given evidence at this 8 hearing, that there -- there's a great deal of 9 opportunity to learn and inform oneself from reading the 10 panels, if you like, of the Judicial System, either by 11 way of decisions or the actual transcripts of expert 12 testimony. 13 Can you think of any practical barriers 14 that, in your environment, would impede your ability to 15 benefit from that kind of recommendation? 16 DR. MICHELLE SHOULDICE: I don't actually 17 know, entirely, the mechanism that we would have to go 18 through in order to access all of -- all of that 19 information. When I have -- I've been involved in a case 20 where there has been a judgment or I've testified and 21 would like to look at the transcripts, my process has 22 been to call up the person who called me, generally the 23 Crown attorney, and ask for a copy of that information to 24 be provided. 25 And that sometimes has happened and


1 sometimes has never happened and so, you know, I think 2 there may be some logistic barriers there that I don't -- 3 MR. WILLIAM CARTER: Well, fir -- 4 DR. MICHELLE SHOULDICE: -- know exactly 5 how to -- 6 MR. WILLIAM CARTER: First of all, you -- 7 you -- 8 DR. MICHELLE SHOULDICE: -- manage. 9 MR. WILLIAM CARTER: -- not every case 10 that goes to trial generates a transcript, I take it. 11 You wouldn't know that, but I -- but it's usually those 12 cases that go to -- on to Appellate review that generate 13 a transcript. 14 There isn't necessarily a transcript 15 prepared for every case that isn't the subject of review, 16 are you familiar with that? 17 DR. MICHELLE SHOULDICE: In terms of 18 transcripts of my own testimony? 19 MR. WILLIAM CARTER: Yeah, or -- or your 20 colleagues. 21 DR. MICHELLE SHOULDICE: As far as I -- 22 as -- as far as I knew, I thought there was always a 23 transcript provided -- 24 MR. WILLIAM CARTER: I see, okay. 25 DR. MICHELLE SHOULDICE: -- but --


1 MR. WILLIAM CARTER: But you don't always 2 get one (1) if you ask for one (1). 3 DR. MICHELLE SHOULDICE: Not always. 4 MR. WILLIAM CARTER: Okay. And I take it 5 that when you're called to give evidence, your -- you 6 rely on the person who called you to inform you of the 7 outcome. 8 DR. MICHELLE SHOULDICE: Generally, yes. 9 MR. WILLIAM CARTER: And if -- if they 10 don't and you remember to follow up, you contact them 11 yourself. 12 DR. MICHELLE SHOULDICE: Yes. 13 MR. WILLIAM CARTER: But the system 14 itself, and by that I mean the -- the child protection or 15 the Criminal Justice System doesn't search out you as a 16 witness and let you know how it's managed your evidence. 17 DR. MICHELLE SHOULDICE: Not typically. 18 MR. WILLIAM CARTER: No. And so the onus 19 is on you or whoever has called you to give testimony to 20 inform you of the outcome. 21 DR. MICHELLE SHOULDICE: Yes. 22 MR. WILLIAM CARTER: Okay. And the 23 transcripts themselves, if you get them, may be of 24 yourself. Do you ever request them of your colleagues? 25 DR. MICHELLE SHOULDICE: No, I never


1 have. 2 MR. WILLIAM CARTER: Okay. And do your 3 colleagues typically tell you when they're going to 4 Court? 5 DR. MICHELLE SHOULDICE: Yes. 6 MR. WILLIAM CARTER: Okay. And I assume 7 they do that partly for scheduling purposes so -- 8 DR. MICHELLE SHOULDICE: Yes. 9 MR. WILLIAM CARTER: -- there's no 10 coverage deficits. 11 DR. MICHELLE SHOULDICE: Yes. 12 MR. WILLIAM CARTER: And partly because 13 they feel you should, as Director and as a colleague, 14 know what they're up to. 15 DR. MICHELLE SHOULDICE: Yes. 16 MR. WILLIAM CARTER: Okay. And when they 17 come back from Court, do they generally share with you 18 their experience? 19 DR. MICHELLE SHOULDICE: Yes. 20 MR. WILLIAM CARTER: Okay. And it -- 21 would it be a good idea from your perspective to try to 22 encourage your team members to followup with their 23 interface with the Justice system to try to determine, to 24 the extent possible, how their evidence was received? 25 DR. MICHELLE SHOULDICE: I think


1 generally that is the practice -- 2 MR. WILLIAM CARTER: Right. 3 DR. MICHELLE SHOULDICE: -- amongst the 4 group of us. 5 MR. WILLIAM CARTER: And that's -- that's 6 actually a fairly human thing, is it not, to see how you 7 did and how -- what, if any, impact you had on an 8 important event for somebody's -- somebody -- a -- a 9 patient's welfare? 10 DR. MICHELLE SHOULDICE: I would say and 11 also to know the final outcome of something that we were 12 involved with, yes. 13 MR. WILLIAM CARTER:: Yes. So if there 14 was a system that was developed that emanated from the 15 Justice System to inform you of the decisions that either 16 affected or involved members of your team that would be 17 of some benefit to you? 18 DR. MICHELLE SHOULDICE: Yes. 19 MR. WILLIAM CARTER:: But it's not 20 something that you or members of your team are really 21 able to initiate on your own? 22 DR. MICHELLE SHOULDICE: We can initiate 23 it, but we -- I don't think we have necessarily control 24 over the result of that initiation. 25 MR. WILLIAM CARTER:: Right. Okay.


1 Okay. Thank you. 2 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 3 Carter. 4 Ms. Rothstein...? 5 6 RE-DIRECT EXAMINATION BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Thank you. Just 8 two (2) questions, thank you. First for you, Dr. Huyer, 9 and arising out of Mr. Wardle's cross-examination of you 10 on the decision of Justice Dunn in the Amber case. 11 You'll find it at Tab 44 of Volume I, if you want to 12 refer to it again in answering my question. 13 You conceded -- you're very candid, Dr. 14 Huyer, in acknowledging that looking at that case today 15 you agree with Justice Dunn on the science that, indeed, 16 there was a misdiagnosis in the case, but you didn't 17 agree with all aspects of Justice Dunn's criticisms of 18 either Dr. Smith and/or other members of the Hospital for 19 Sick Children. 20 And I'd be grateful if you'd just 21 elaborate as to the points in Justice Dunn's decision 22 with which you disagree today? 23 DR. DIRK HUYER: I think that there was 24 significant reliance on the presentation and the 25 appearance in the psychosocial factors. There was


1 significant reliance on that in the judgment. And so 2 that was probably the most significant factor for me that 3 I had disagreement with. The -- I'm trying to -- 4 MS. LINDA ROTHSTEIN: And just unpacking 5 that for a moment. You're referring to those criticisms 6 that Justice Dunn made of, for example, Dr. Driver, in 7 not doing more to support the psychosocial assessment of 8 this accused, is that right? 9 DR. DIRK HUYER: Yes. 10 MS. LINDA ROTHSTEIN: And you're saying 11 that today, you wouldn't put forward any reliance on a 12 psychosocial assessment in coming to a diagnosis in this 13 case? 14 DR. DIRK HUYER: Correct. 15 MS. LINDA ROTHSTEIN: All right. 16 DR. DIRK HUYER: And also, his reliance 17 within the judgment -- the -- on those factors -- 18 COMMISSIONER STEPHEN GOUDGE: His own 19 reliance? 20 DR. DIRK HUYER: Yes, his own reliance of 21 those factors, I thought, was a significant portion of 22 his judgment and -- in -- in forming his opinion. Trying 23 to remember the other specific areas. It was more of a 24 general answer to Mr. Wardle as opposed to things -- the 25 -- I think that there was the challenge of the


1 communication between the pathologist and -- and the -- 2 and the SCAN Program, which I did agree with. 3 I think that the autopsy portion and the - 4 - the timeframe to that autopsy portion was not an HSC 5 issue -- well, it was a -- a medical records issue, but I 6 didn't think it was a HSC physician issue. So I thought 7 that was another issue that didn't -- wasn't correct. 8 That was a -- a coroner's issue, in -- in 9 my opinion. And then a medical records mixup, but the 10 coroner was still given an opportunity after the medical 11 records mixup was noted to -- to help with that. 12 I also didn't think there were that many 13 recommendations or specific criticisms of the hospital 14 itself apart from communication difficulties, and my 15 interpretation of the question was that it was a very -- 16 that there were a lot of points made about Sick 17 Childrens, so I think that was part of my response to Mr. 18 Wardle, as well. 19 That there were specific points made by 20 Justice Dunn on how Sick Kids could improve the practice, 21 where I didn't see actually that detailed. I found more 22 comments on the physician's approach to things and how it 23 didn't match the defence counsel opinions. So I think 24 that's most of the issues that I was referring to or -- 25 or commenting in my response.


1 MS. LINDA ROTHSTEIN: Okay. Dr. 2 Shouldice, in answering the questions of Ms. Davies, you 3 made reference to a document which sets out the -- a 4 script, if you will, that you -- your team uses before 5 they interview a parent in aid of a -- or a caregiver in 6 aid of a psychosocial assessment. 7 DR. MICHELLE SHOULDICE: Yes. 8 MS. LINDA ROTHSTEIN: And over the break, 9 I gather you were able to get a copy of that document, 10 and I believe, Registrar, that we have provided it to 11 you, and you can put it up on our screens because we 12 haven't yet photocopied it. And it's entitled, 13 "Empirically Based Clinical Decision Making Interview." 14 Is that the document that you were 15 referring to in Ms. Davies evidence? 16 DR. MICHELLE SHOULDICE: Yes. 17 MS. LINDA ROTHSTEIN: All right. So tell 18 us what that is, and how it works, and who uses it? 19 DR. MICHELLE SHOULDICE: So this -- this 20 is the first page or the first part of what I have termed 21 the psychosocial interview, previously, as we've been 22 speaking about this. This is the tool that's used by our 23 social workers when they do a psychosocial interview in 24 those grey cases that we've discussed. 25 And this page basically outlines the


1 script, when the social worker is meeting with the 2 family, in terms of how they introduce themselves, and 3 their role, and the family's voluntariness in terms of 4 participation with a interview. 5 MS. LINDA ROTHSTEIN: And how long has 6 this document been in use? 7 DR. MICHELLE SHOULDICE: I -- you know, 8 I don't recall specifically when it's -- when we first 9 used it, but I would -- some time over the past five (5) 10 years we -- we instituted it, and it's gone through a 11 couple of iterations along the way. This is the most 12 recent version. 13 MS. LINDA ROTHSTEIN: Any further 14 questions about that, Commissioner? 15 COMMISSIONER STEPHEN GOUDGE: No, I think 16 I'm fine, thanks. 17 MS. LINDA ROTHSTEIN: Okay. Well, we 18 will assign that a PFP number in due course, counsel. 19 And, Commissioner, unless you have any further questions, 20 that completes our examination of these witnesses. 21 COMMISSIONER STEPHEN GOUDGE: No. I 22 think I simply want to thank the three (3) of you for 23 devoting the time and thought you have to coming to 24 assist us. I found it very, very helpful. So thank you 25 all very much.


1 DR. DIRK HUYER: You're welcome. 2 DR. KATY DRIVER: You're welcome. 3 4 (WITNESSES STAND DOWN) 5 6 MS. LINDA ROTHSTEIN: Thank you very 7 much. Thank you, Commissioner. Tomorrow we will begin 8 and end with the evidence of Dr. Thorner. Ms. McAleer is 9 leading his evidence. She feels confident that she will 10 be able to complete his evidence in-chief by the morning 11 break, and if we sit a little longer than the normal 12 lunch break we should be able to indeed to complete all 13 of the evidence of Dr. Thorner before lunch tomorrow. 14 COMMISSIONER STEPHEN GOUDGE: With that 15 incentive, we will rise until 9:30 tomorrow morning. 16 17 --- Upon adjourning at 3:09 p.m. 18 19 Certified Correct, 20 21 22 23 ___________________ 24 Rolanda Lokey, Ms. 25