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 14th, 2008 25

2
  1                        Appearances
  2  Linda Rothstein      (np) )     Commission Counsel
  3  Mark Sandler              )
  4  Robert Centa         (np) )
  5  Jennifer McAleer     (np) )
  6  Johnathan Shime       (np) )
  7  Ava Arbuck                )
  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      (np)  )     Hospital for Sick Children
 23  Barbara Walker-Renshaw(np) )
 24  Kate Crawford             )
 25

3
  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        (np) )     Association in Defence of
 18  Vanora Simpson            )     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) )

4
  1                 APPEARANCES (cont'd)
  2  Suzan Fraser       (np)   )     Defence for Children 
  3                             )     International - Canada
  4  
  5  William Manuel            )     Ministry of the Attorney
  6  Heather Mackay     (np)   )     General for Ontario
  7  Erin Rizok          (np)   )
  8  Kim Twohig          (np)   )
  9  Chantelle Blom     (np)    )
 10  
 11  Natasha Egan       (np)   )     College of Physicians and 
 12  Carolyn Silver     (np)   )     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 ROBERT ALLAN KEETCH, Sworn 4 5 Examination-In-Chief by Mr. Mark Sandler 6 6 Cross-Examination by Mr. Peter Wardle 160 7 Cross-Examination by Ms. Breese Davies 193 8 Cross-Examination by Ms. Vanora Simpson 220 9 Cross-Examination by Ms. Luisa Ritacca 230 10 Cross-Examination by Mr. William Manual 256 11 12 13 Certificate of transcript 263 14 15 16 17 18 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. Mr. Sandler...? 7 MR. MARK SANDLER: Yes, good morning, 8 Commissioner. Commissioner, commencing today, extending 9 into tomorrow, and also on January the 24th of this 10 month, you'll be hearing from five (5) police officers 11 who had involvement in some of the cases that have been 12 the subject of evidence at this Inquiry. 13 Today you'll be hearing from Inspector 14 Robert Keetch of the greater Sudbury police service, so 15 I'd ask that he'd be sworn in please. 16 17 ROBERT ALLAN KEETCH, Sworn 18 19 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Yes, good morning, 21 Inspector Keetch, again. 22 MR. ROBERT KEETCH: Good morning. 23 MR. MARK SANDLER: Inspector, you will 24 have a Volume in front of you that contains documents 25 that are relevant to your testimony today, and if I can

1 take you to Tab 46, of that document volume, PFP302576, 2 at page 1. 3 This is your curriculum vitae, as I 4 understand it? 5 MR. ROBERT KEETCH: That's correct. 6 MR. MARK SANDLER: Now, it reflects that 7 you are a member of the greater Sudbury Police Service, 8 is that right? 9 MR. ROBERT KEETCH: Yes, sir. 10 MR. MARK SANDLER: And how long have you 11 been a member of that Force? 12 MR. ROBERT KEETCH: Approximately twenty- 13 two (22) years. 14 MR. MARK SANDLER: All right. And prior 15 to that you were a member of the Ontario Provincial 16 Police? 17 MR. ROBERT KEETCH: For approximately 18 four (4) years. 19 MR. MARK SANDLER: All right. And just 20 going through your career advancement, starting from the 21 present and working backwards. You've reflected in your 22 curriculum vitae that from July 2007 to the present, you 23 serve as acting Inspector, Criminal Investigation Branch. 24 Is that right? 25 MR. ROBERT KEETCH: That's correct.

1 MR. MARK SANDLER: And your 2 responsibilities include the oversight of the operations 3 of the Criminal Investigations Division, including 4 general investigations, sexual assault, Drug Intelligence 5 Units, crime analysis, and Forensic -- Forensic 6 Identification Unit. 7 Is that right? 8 MR. ROBERT KEETCH: That's correct. 9 MR. MARK SANDLER: And part of your 10 responsibility is liaising with members of the Crown 11 Attorney's Office, scientists at the Northern Regional 12 Forensic Laboratory, and the Office of the Chief Coroner 13 of Ontario. 14 Is that right? 15 MR. ROBERT KEETCH: Yes, sir. 16 MR. MARK SANDLER: Now the Criminal 17 Investigations Branch within the greater Sudbury Police 18 Service, does that branch investigate homicides, or 19 sudden and unexpected deaths? 20 MR. ROBERT KEETCH: Yes, sir, it does. 21 MR. MARK SANDLER: So you have no 22 discreet homicide unit per se? 23 MR. ROBERT KEETCH: No, we do not have a 24 defined homicide unit. 25 MR. MARK SANDLER: All right. And we see

1 then that for the period January 2007 to July 2007, you 2 were a Staff Sergeant of that same branch. 3 Is that correct? 4 MR. ROBERT KEETCH: Yes, sir. 5 MR. MARK SANDLER: And your 6 responsibilities as a Staff Sergeant included the 7 managing and providing of effective leadership to 8 investigators that were assigned within that branch. 9 Is that right? 10 MR. ROBERT KEETCH: That's correct. 11 MR. MARK SANDLER: So it was a 12 supervisory function? 13 MR. ROBERT KEETCH: Yes, it was. 14 MR. MARK SANDLER: And -- and you've 15 reflected that part of that responsibility included the 16 role of major case manager, responsible for the overall 17 control, direction, and accountability of major case 18 investigations. 19 Is that right? 20 MR. ROBERT KEETCH: Yes, sir. 21 MR. MARK SANDLER: And again, in that 22 role, you also liaised on a regular basis with the 23 Crowns, forensic pathologists, and the scientists at the 24 Northern Regional Forensic Laboratory. 25 MR. ROBERT KEETCH: Yes, sir.

1 MR. MARK SANDLER: Now, you've reflected 2 at the -- at the end of that page and into the following 3 page that you were appointed as the representative from 4 the police service on the Ontario Major Case Management 5 Committee. 6 Could you advise the Commissioner what is 7 the Ontario Major Case Management Committee? 8 MR. ROBERT KEETCH: That was the 9 committee that was established as a result of Justice 10 Campbell's recommendations in relation to the Bernardo 11 inquiry, and was tasked with developing a manual in 12 relation to define major case investigations. 13 And -- and that committee still meets to 14 review that manual and make recommendations in relation 15 to define major case investigations. 16 MR. MARK SANDLER: All right. And I'm 17 going to come back and ask you some questions about major 18 case management and what it means in a few moments, if I 19 may. 20 So continuing on through your curriculum 21 vitae, we see that from November of 2005 to January of 22 2007 you were the major case manager for a particular 23 homicide that was being investigated by the Greater 24 Sudbury Police Service. 25 Is that right?

1 MR. ROBERT KEETCH: Yeah, that was a 2 joint forces investigation in relation to a murder. We 3 were working jointly with members of the Ontario 4 Provincial Police. 5 MR. MARK SANDLER: Okay. Then during the 6 period 2004 to November 2005 you were again Staff 7 Sergeant, Criminal Investigations Branch. And we can see 8 from your curriculum vitae at the bottom of page 2 and 9 into page 3 that -- that you rotated from continuing in 10 that position, 1999 to 2000, to serving as a Sergeant or 11 Staff Sergeant within the Uniform Division. 12 Am I right? 13 MR. ROBERT KEETCH: Yeah, there was a 14 brief stint were I was a assigned to -- as a Staff 15 Sergeant on charge of a platoon for one (1) year. 16 MR. MARK SANDLER: All right. Then we 17 see at the bottom of page 3 that from 1995 to 1998 you 18 were a Sergeant in the Criminal Investigations Branch. 19 And I gather that in that capacity you investigated 20 complex major criminal investigations and you were the 21 lead investigator for four (4) homicide investigations. 22 Is that so? 23 MR. ROBERT KEETCH: That's correct. 24 MR. MARK SANDLER: And -- and we also see 25 -- continuing onto page 4 -- that you were routinely

1 assigned to suspicious or sudden death investigations. 2 And -- and we see in your curriculum vitae that you 3 conducted an extensive investigation into the death of a 4 eleven (11) month old child, which included the 5 preparation of disinterment brief for the Ontario General 6 of Ontario. 7 And I take it that's reference to the 8 Nicholas case that we've been dealing with here? 9 MR. ROBERT KEETCH: Yes, sir, that is. 10 MR. MARK SANDLER: And we'll be coming 11 back to that of course in a few moments. 12 And then we see from 1991 to 1995 you were 13 a constable with the Forensic Identification Branch and 14 your duties included attending crime scenes, identifying, 15 photographing and collecting evidence. You also 16 regularly attended post-mortems and liaised with forensic 17 pathologists and coroners on death investigations. 18 Is that so? 19 MR. ROBERT KEETCH: Yes, sir. 20 MR. MARK SANDLER: Now, could you give 21 the Commissioner just some sense of very, very, roughly 22 of how many homicides would be investigated by the 23 Greater Sudbury Police Service in the course of a year, 24 recognizing the figure varies? 25 MR. ROBERT KEETCH: It varies greatly.

1 We've gone from a high of approximately fourteen (14) 2 homicides one (1) year when we were the -- unfortunately 3 the murder capital of Ontar -- of Canada, per capita, 4 down to where we have none, I would suggest. On an 5 annual basis, we average between three (3) to five (5) 6 homicides. 7 MR. MARK SANDLER: All right. And in 8 addition to the -- to those matters that are 9 characterized as homicides, I take it that you also have 10 to investigate sudden and unexpected deaths including 11 those of children that may not be ultimately be found to 12 be homicides. 13 Is that right? 14 MR. ROBERT KEETCH: Yes, sir, that's 15 correct. 16 MR. MARK SANDLER: And in the course of 17 your work either as a Sergeant -- Staff Sergeant or 18 Forensic Identification Officer, have you been involved 19 in a number of investigations that involved sudden and 20 unexpected deaths, including children? 21 MR. ROBERT KEETCH: Yes, I have. 22 MR. MARK SANDLER: Okay. And I want to 23 ask you, just if we could take a snapshot nowadays, and 24 we'll come back to how this compares to the practice back 25 when Nicholas was investigated, but let's assume nowadays

1 you were to receive or the police were to receive a call 2 about the sudden and unexpected death of a child at home 3 or a child that had been taken to hospital. 4 How would that matter be assigned and 5 dealt with within the greater Sudbury Police Service at 6 present? 7 MR. ROBERT KEETCH: Generally upon re -- 8 receiving a call as the police service, it would be a 9 member -- as supervisory member from the Criminal 10 Investigations branch would be notified; that generally 11 would be a staff Sargent that would be on duty. He would 12 then look at the investigators that you had working that 13 particular day and look for somebody that potentially has 14 the knowledge, skills, and abilities and -- and 15 experience to investigate this type of investigation. 16 I can say that while I was a staff Sargent 17 within the unit, I generally would go because of my 18 previous experience in -- in death investigations 19 involving young children. I would go take an 20 investigator with me and oversee the investigation, and 21 yet mentor the particular investigator at that time, 22 trying to rely on the previous experience that I had 23 developed as a result of the investigation of these type 24 if incidents. 25 MR. MARK SANDLER: Now, just stopping

1 there for a moment, can I take from that that -- that not 2 every investigator, however capable, has experience in 3 the greater Sudbury area with sudden and unexpected death 4 of children. 5 Is that fair enough? 6 MR. ROBERT KEETCH: That's a fair 7 statement. 8 MR. MARK SANDLER: And also, is there 9 specific training that is given to -- to investigators in 10 pediatric death cases? 11 MR. ROBERT KEETCH: There is not -- that 12 training is not pre -- presently available. Obviously, 13 as a police service we would have a policy as follows, a 14 part of our policies and procedures relative to the 15 running of the police service with -- which would deal 16 with sudden unexpected death investigations involving 17 young children, and also there is a protocol which has 18 been developed or -- through the Chief Coroner's Office 19 of Ontario, relative to these type of death 20 investigations, which would be followed, as well. 21 MR. MARK SANDLER: All right. So just 22 teasing out your answer, because it raises two (2) 23 issues, the first is that, I know that one (1) of the 24 recommendations ultimately that you'd like to make to the 25 Commissioner has to do with training, and what -- what

1 recommendation would that be? 2 MR. ROBERT KEETCH: Well, I -- I would 3 like to see a course developed in relation to pediatric 4 death investigations that would be offered, hopefully, 5 through the Ontario Police College which would provide 6 potential investigators some training relative to these 7 type of investigations. 8 MR. MARK SANDLER: All right. And -- 9 COMMISSIONER STEPHEN GOUDGE: Would you 10 see that course, Inspector, as being offered to a 11 specialised group within the Investigation Unit or to 12 all? 13 MR. ROBERT KEETCH: No, I think -- we 14 don't get that many of these type of investigations -- 15 COMMISSIONER STEPHEN GOUDGE: Yes, and 16 that's why I ask. 17 MR. ROBERT KEETCH: Yeah. 18 COMMISSIONER STEPHEN GOUDGE: I mean 19 you'd have to train everybody -- 20 MR. ROBERT KEETCH: No. 21 COMMISSIONER STEPHEN GOUDGE: -- in the 22 Investigation Unit, wouldn't you? 23 MR. ROBERT KEETCH: Yeah, I agree. I 24 think as a police service there's almost an onus on us to 25 identify an individual that we feel has competencies to

1 ta -- take on those type of investigations and then 2 select that individual to attend the training. And I 3 would like to see other police services do that, as well. 4 COMMISSIONER STEPHEN GOUDGE: Right. So 5 it would be, in effect, taking an inspector and making 6 that person a specialist? 7 MR. ROBERT KEETCH: Specialising them in 8 those types of investigations, that's correct. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: All right, thank you. 12 And the second component of your answer to the 13 Commissioner had to do with the protocol that exists. 14 And we've actually seen marked in these proceedings the 15 protocol for police officers in investigating sudden and 16 unexpected deaths. 17 How is the protocol used? It's a 18 checklist of sorts, is it not? 19 MR. ROBERT KEETCH: Yeah, basically it's 20 a checklist of investigative steps, questions, and data 21 that's required specific to that type of an investigation 22 and you proceed through the checklist with either the 23 mother and/or family members there to garner the type of 24 in -- information that's required for this type of 25 investigation.

1 MR. MARK SANDLER: All right. Now, we 2 see at page 5 of your curriculum vitae under "related 3 experience" the -- that you're designated the multi- 4 jurisdictional major case manager by the Campbell 5 Transmission Steering Committee. 6 And what does that mean, as opposed to 7 Item 4, which is Campbell Project Major Case Management 8 Committee Member for the Province of Ontario? 9 MR. ROBERT KEETCH: Okay. As a result of 10 Justice Campbell's inquiry there was a recommendation 11 made that a pool of multi-jurisdictional major case 12 managers be created within the Province that would be 13 tasked with managing a type of investigation similar to 14 the bur -- Bernardo investigation or the Green Ribbon 15 Task Force. 16 It would -- it was a pool that was created 17 initially -- I think there were twenty-four (24) 18 officers, the -- you submitted a resume and the resume 19 was reviewed. I think there were twenty-four (24) 20 individuals selected within the Province; twelve (12) of 21 those being members of the Ontario Provincial Police and 22 then twelve (12) from other outside agencies. 23 And -- and the intent was that this pool 24 would be utilized should a similar type investigation 25 occur and there would be a request made from the

1 investigating agency to have a multi-jurisdictional major 2 case manager assigned to oversee the investigation. 3 MR. MARK SANDLER: Now -- 4 COMMISSIONER STEPHEN GOUDGE: By "outside 5 agencies" you mean municipal police forces, the Greater 6 Sudbury Police Authority and so on? 7 MR. ROBERT KEETCH: Yes. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: All right. Now 11 leaving a solid multi-jurisdictional investigations, am I 12 right that major case management can be applied not only 13 to those kinds of investigations that involve multiple 14 police services, but indeed an investigation that's 15 confined, for example, to the Greater Sudbury Police 16 Service? 17 MR. ROBERT KEETCH: Yes, there's a 18 definition of "major case" within the manual and would 19 identify various types of investigations that meet the 20 criteria to have the manual applied and the software -- 21 there's a software that's used to manage the data during 22 the investigation. 23 And if the type of offence, like a sexual 24 assault, would be, by definition, a major case and would 25 have the major case manager, a primary investigator, and

1 the file coordinator assigned to that investigation. 2 Depending on the complexity of the investigation, you may 3 have one (1) individual fill all those three (3) roles or 4 you may have three (3) separate individuals filling the 5 roles. 6 MR. MARK SANDLER: All right. And if we 7 can turn to Tab 45, which is PFP302516. 8 As I understand it, this is the Ontario 9 Major Case Management Manual that you've been referring 10 to in the testimony. 11 MR. ROBERT KEETCH: That's correct. 12 MR. MARK SANDLER: And if we may just 13 very briefly, and the document is too voluminous to -- to 14 give full justice to in a few moments, but -- but if we 15 can have a look very briefly at several of its features, 16 simply to acquaint the Commissioner with what this 17 document is all about. 18 And if you'd look with me at page 7 of the 19 document, we see at the top that: 20 "The following criteria offences are 21 deemed to be major cases." 22 And we see under (a) all homicides is 23 defined in the named provision of the Criminal Code of 24 Canada, and attempts. We see also sexual assaults. 25 We see under item (e):

1 "...occurrences suspected to be 2 homicide involving found human 3 remains." 4 And Item (g): 5 "Any other case designated as a major 6 case by the Major Case Management 7 Executive Board." 8 Now just stopping there for a moment. Is 9 the Major Case Management Executive Board internal to the 10 Greater Sudbury Police Service or is that a multi- 11 jurisdictional board? 12 MR. ROBERT KEETCH: No, that's a 13 governing body that's appointed with various membership 14 of agencies throughout the Province. It's not just 15 specific to police agency. There would be representation 16 from the police department, var -- some police 17 departments but there's also representation from the 18 Chief Coroner's Office as well. 19 MR. MARK SANDLER: So just -- 20 MR. ROBERT KEETCH: It's a governing 21 body -- 22 MR. MARK SANDLER: All right. 23 MR. ROBERT KEETCH: -- basically. 24 MR. MARK SANDLER: And just stopping 25 there for a moment. We know in the Nicholas case, which

1 we'll turn to in a few moments, that -- that initially it 2 presented as a SIDS or SUDS case with -- with no 3 suspected abuse and then as a result of -- of further 4 work that was done in Toronto and Dr. Smith's 5 consultation report, it was regarded as a -- as a 6 suspicious case. 7 Let me ask you this. Had that case 8 presented itself today, with that background, and just 9 that much background at this point in our discussion, 10 would that have been eligible or potentially eligible to 11 be a major case for the purposes of the management 12 described in this manual? 13 MR. ROBERT KEETCH: The initial component 14 of that investigation, be it the -- probably what could 15 be defined as the first twelve (12) months of that 16 investigation, would not fall within the criteria of a 17 defined major case, because it was, as you stated, a SIDS 18 or SUDS death involving a eleven (11) month old child. 19 That does not meet the definition. 20 I would suggest that when Dr. Smith came 21 to Sudbury and presented his consultation report in 22 relation to his examination of the material that had been 23 forwarded by the Regional Coroner to the Paediatric Death 24 Review Committee, and his opinion based on that 25 documentation would then have raised the bar and had it

1 fall within the criteria that would have met major case, 2 or defined major case. 3 MR. MARK SANDLER: Okay. And -- and 4 you've described some of the features of major case 5 management including access to a very sophisticated 6 software package for managing the file. 7 Is that right? 8 MR. ROBERT KEETCH: That's correct. 9 MR. MARK SANDLER: Also the different 10 roles that are performed by -- by either the same player 11 or various players, as are set out in the manual. 12 Am I right? 13 MR. ROBERT KEETCH: Yes, that's correct. 14 MR. MARK SANDLER: And -- and if we can 15 just look a little bit further along, we see a page 8 of 16 the major cases management definitions, near the bottom 17 of that page, Case Conference, and it says: 18 "Consultation with appropriate 19 representation from all involved 20 agencies and any other experts who may 21 assist in the investigation. This 22 includes obtaining inter-disciplinary 23 input at the earliest opportunity, to 24 assist in developing investigative 25 strategies, establishing priorities,

1 and determining the sequence of any 2 necessary investigative procedures." 3 And we see on the next page, page 9, that 4 "expert" is defined about two-thirds (2/3s) of the way 5 down the page as: 6 "A person other then an employee of a 7 police service, Office of the Chief 8 Coroner or the Centre of Forensic 9 Sciences, with a proven expertise in a 10 scientific or medical discipline who 11 may be consulted during a major case 12 investigation." 13 And if I can take you to one (1) more term 14 in the definition section. It's at the following page, 15 page 10, and it's the second defined term, 16 "investigative consult -- consultant team.": 17 "The group that's formed the case 18 conference. The formation of this team 19 is mandatory in a multi-jurisdictional 20 investigation, and discretionary in a 21 single jurisdiction investigation. An 22 investigative consult team may include, 23 but is not limited to forensic experts, 24 medical experts, Centre of Forensic 25 Science experts, Office of the Chief

1 Coroner, forensic psychiatry, office of 2 the local Crown attorney, forensic 3 pathology, an alternate multi- 4 jurisdictional major case manager, and 5 other experienced investigators. The 6 investigative consultant team shall 7 include members of the command 8 triangle." 9 So, just taking those definitions for a 10 moment, and -- and going back to the Nicholas Case. 11 Assuming that the greater Sudbury Police Service had 12 designated that matter as a matter deserving of major 13 case management, what implications would that have for 14 case conferencing and investigative consulting? 15 MR. ROBERT KEETCH: Well, I -- I don't 16 think it would have really had much of a difference in 17 what we did. We basically had what we would refer to now 18 as a case conference probably in -- in January when Dr. 19 Smith attended, and there were the cor -- local coroner 20 was there, the regional coroner was there, Dr. Smith was 21 there. That would -- could probably be defined as a case 22 conference on that particular date. 23 And then were a series of other case 24 conferences through -- throughout that investigation, 25 that also involved members of the local Crown Attorney's

1 Office, as well as representation from the Office of the 2 Chief Coroner. 3 MR. MARK SANDLER: Okay. And is there -- 4 is there a preference expressed in the -- in the manual 5 for major case management as to how quickly or promptly 6 case conferencing should take place in these kinds of 7 investigations? 8 MR. ROBERT KEETCH: I'd have to be going 9 from my recollection, but I believe that there is a 10 requirement within the major case manager's duties to 11 hold a case conference within, I believe, it's the first 12 seven (7) days of a... 13 MR. MARK SANDLER: Perhaps I'll help you 14 out a little bit. 15 MR. ROBERT KEETCH: Okay. 16 MR. MARK SANDLER: If -- if you'd go to 17 page 43 of the manual, we actually see under Item 6: 18 "Where applicable, the major case 19 manager shall conduct a case conference 20 at the earliest possible opportunity 21 for the purposes of obtaining inter- 22 disciplinary input to assist in 23 developing investigative strategies, 24 establishing priorities, and ranking 25 the sequence of any necessary

1 investigative procedure." 2 So that -- that would appear to reflect 3 not a specified period of time, but the earliest possible 4 opportunity? 5 MR. ROBERT KEETCH: That's correct. 6 MR. MARK SANDLER: All right. And we 7 actually see that that forms part of a section of the 8 manual that starts at page 42, on accessing expert 9 resources through the Office of the Chief Cor -- Coroner 10 is described as: 11 "And integral part of a coordinated 12 multi-disciplinary team response in any 13 major case death investigation." 14 Is that right? 15 MR. ROBERT KEETCH: That's correct. 16 MR. MARK SANDLER: And -- and it reflects 17 that the Office of the Chief Coroner is -- is consulted 18 as -- as part of the process when the major case manager 19 deems it necessary to obtain the services of -- of an 20 expert? 21 MR. ROBERT KEETCH: That's correct. 22 MR. MARK SANDLER: And does that accord 23 with the practice as you understand it? 24 MR. ROBERT KEETCH: Yes. 25 MR. MARK SANDLER: Now we also see at

1 page 44, that the Major Case Management Manual sets out a 2 standardized approach to how post-mortem examinations 3 should take place. 4 Is that right? 5 MR. ROBERT KEETCH: Yes, sir. 6 MR. MARK SANDLER: And -- and we see -- 7 because this has come up in the -- in -- in another 8 context through some of the forensic pathological 9 evidence that we've heard that, in the introduction: 10 "A standardized approach to post-mortem 11 examinations ensures the preservation, 12 integrity, and continuity of evidence. 13 And it reflects that the Major Case 14 Manager shall ensure [at Item 2] that 15 officers attending the post-mortem 16 examination are aware of the duties and 17 responsibilities of the pathologist 18 under the direction of the coroner. 19 The Major Case Manager shall ensure 20 that measures are taken to prevent 21 trace evidence from being transferred 22 between crime scenes and so on, ensure 23 the coroner is advised of the known 24 facts of the investigation, ensure the 25 continuity of the deceased is

1 maintained from the discovery of the 2 body to the completion of the 3 post-mortem examination. In the event 4 that a dispute between the Major Case 5 Manager and the attending coroner 6 and/or pathologist cannot be resolved, 7 the Office of the Regional Coroner and 8 if necessary, the Office of the Chief 9 Coroner shall be contacted to 10 facilitate a resolution. 11 Item (F) Ensure the coroner and the 12 pathologist are advised of any 13 requested post-mortem examinations. 14 (G) Ensure the appropriate 15 investigative personnel attend the 16 post-mortem examination including 17 forensic identification personnel. 18 (H) Ensure an attending officer 19 records the preliminary opinion 20 regarding the cause of death as stated 21 by the pathologist. 22 (I) Ensure notes are maintained that 23 include the following: the date and 24 time the post-mortem was started and 25 completed, individuals present,

1 preliminary opinion regarding the case 2 of death as provided by the 3 pathologists, seizure of evidence, and 4 major findings that may assist with the 5 investigation." 6 And just stopping there for a moment. It 7 would appear that a matter that has been characterized as 8 major case management compels the certain recording of 9 standardized information by the attending officer at the 10 post-mortem. 11 Is that right? 12 MR. ROBERT KEETCH: That's correct. 13 MR. MARK SANDLER: And again, that would 14 be different than the practice that would have been 15 mandated back during the conduct of the Nicholas 16 investigation. 17 Is that fair? 18 MR. ROBERT KEETCH: During the Nicholas 19 investigation, around that timeframe, it depended on who 20 your pathologist was in relation to the amount of 21 information that -- as a forensic identification officer 22 you would be detailing and/or as an investigator that was 23 present at -- during the autopsy. The pathologists 24 basically would determine the amount of information and 25 what information was contained within your notes.

1 MR. MARK SANDLER: All right. Well, let 2 me ask you, as a matter a practice nowadays, if -- if 3 someone's attending from the Greater Sudbury Police 4 Service at an autopsy that's being conducted by a 5 pathologist -- by a forensic pathologist, first of all, 6 information is communicated to the forensic pathologist 7 who's conducting the autopsy, I take it? 8 MR. ROBERT KEETCH: That's correct. 9 MR. MARK SANDLER: And is the information 10 communicated in writing or provided in writing or is it 11 provided verbally? 12 MR. ROBERT KEETCH: Generally, on the -- 13 it would depend on the type of investigation. If it was 14 a suspected homicide then you're going find that the 15 investigators generally are present for the post-mortem, 16 as well as representation from the Forensic 17 Identification Branch. 18 A -- a lot of times you will find that 19 they will print off the reports that are available, 20 relative to that death investigation. Those reports will 21 go regardless of whether it's a Forensic Identification 22 Officer that goes and/or and investigator, but when you - 23 - when you find an investigator goes a lot of times they 24 will take a lot of information that is not captured in 25 the reports, relative to the investigation, but specific

1 to the investigation that they often provide verbally to 2 the pathologist prior to the autopsy commencing. 3 MR. MARK SANDLER: All right. And -- and 4 in fairness, is any -- is any written record kept or any 5 audio tape or video tape of precisely what information is 6 communicated by the investigator to the forensic 7 pathologist, other than the things that are captured in 8 the actual occurrence reports? 9 MR. ROBERT KEETCH: No, there is not a 10 record kept. 11 MR. MARK SANDLER: All right. And -- 12 COMMISSIONER STEPHEN GOUDGE: At least 13 not by the -- 14 MR. ROBERT KEETCH: Not by the police. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: All right. And then - 19 - an typically -- I'll ask you this: Typically, does the 20 forensic pathologist take notes during that interchange 21 between the investigators, or does the practice vary 22 depending upon who you're dealing with? 23 MR. ROBERT KEETCH: The practice varies 24 again, but it would be my experience that they do not 25 take extensive notes during that discussion.

1 MR. MARK SANDLER: Okay. And -- and just 2 stopping there for a moment. We've seen that in the 3 Nicholas case, the original medicolegal autopsy was 4 performed by Dr. Chen. 5 And Dr. Chen was a pathologist familiar to 6 you back during that period of time, I take it? 7 MR. ROBERT KEETCH: That's correct. 8 MR. MARK SANDLER: And was that the only 9 autopsy in a case in which you had been involved that he 10 had performed or were there others? 11 MR. ROBERT KEETCH: No, there were new -- 12 I attended numerous autopsies that Dr. Chen performed. 13 MR. MARK SANDLER: All right, and was 14 there a time when -- when someone else started to perform 15 the lion's share of the autopsies that were referred by, 16 or through, the Greater Sudbury Police Service? 17 MR. ROBERT KEETCH: Would this be after 18 Nicholas? Are you referring specifically -- 19 MR. MARK SANDLER: Yes. 20 MR. ROBERT KEETCH: -- to after Nicholas' 21 death? 22 MR. MARK SANDLER: I am. 23 MR. ROBERT KEETCH: Yeah, there was a 24 decision made, I believe, by the Chief Coroner's Office 25 in relation to the services of Dr. Chen and he was no

1 longer utilized relative to autopsies, and we had a new 2 forensic pathologist, Dr. Martin Queen, move into the 3 area, and basically he was responsible, or has been 4 responsible, for doing forensic autopsies, or autopsies, 5 I guess, in the Sudbury area. 6 MR. MARK SANDLER: All right. And we've 7 actually heard that Dr. Queen is accredited as a forensic 8 pathologist, and that accords with your understanding, as 9 well? 10 MR. ROBERT KEETCH: That's my understand, 11 as well, yes, sir. 12 MR. MARK SANDLER: Now, just continuing 13 on with -- with the -- with the protocol, so to speak, 14 that would occur today, during the autopsy itself, do 15 your officers, in accordance with what I've just read you 16 from the case -- from the major case manual, take notes? 17 MR. ROBERT KEETCH: Very -- a forensic 18 identification officer would be responsible for taking 19 the notes; basically it would record the autopsy number 20 associated with that autopsy, the name of the deceased's 21 date of birth, generally, some generic information 22 relative to clothing descriptions. 23 Again, it -- I think that practice may 24 vary somewhat depending on the identification officer. 25 Generally, you'll find that our officers that are

1 attending are not taking notes relative to specific 2 injuries because there's often a discrepancy in relation 3 to what is an abrasion to a pathologist compared to what 4 is a laceration, so we don't -- we tend not to identify 5 specific injuries which may have been a past practice, 6 but is no longer a practice. 7 We rely on the final autopsy report 8 relative to that, and then, as you -- as stated here, we 9 would ask the pathologist at the conclusion of the 10 autopsy for a preliminary indication relative to cause of 11 death. By then officers would also, obviously, be 12 documenting any exhibits that were seized during that 13 autopsy and turned over to them and -- and maintaining 14 continuity and recording that in their notebook, as well. 15 MR. MARK SANDLER: All right, so -- so 16 from your perspective, the ideal recording on the part of 17 a forensic identification officer during an autopsy would 18 accord with what we see at page 44 of -- of the manual 19 and would not necessarily include recital of -- of the 20 pathological findings. 21 MR. ROBERT KEETCH: That's correct. 22 MR. MARK SANDLER: Okay. And -- and 23 there is a reflection that -- that the attending officer 24 is to record the preliminary opinion regarding the cause 25 of death as stated by the pathologist.

1 Generally speaking, do you get a 2 preliminary opinion from the forensic pathologist? 3 MR. ROBERT KEETCH: Generally we do. I 4 mean it may be nonspecific in relation to non-ano -- 5 anatomical cause of death pending the results of 6 toxicology, but generally we will get a preliminary 7 indication relative to cause of death. 8 MR. MARK SANDLER: And -- and that is to 9 be recorded in the officer's notebook. 10 MR. ROBERT KEETCH: That's correct. 11 MR. MARK SANDLER: All right. 12 COMMISSIONER STEPHEN GOUDGE: And even an 13 indeterminate conclusion -- 14 MR. ROBERT KEETCH: Yeah. 15 COMMISSIONER STEPHEN GOUDGE: -- would be 16 recorded. 17 MR. ROBERT KEETCH: Yeah, generally the - 18 - if it's indeterminate, it will no a -- no anatomical 19 cause of death pending further examination -- 20 COMMISSIONER STEPHEN GOUDGE: Pending 21 results of -- 22 MR. ROBERT KEETCH: -- and/or toxicology 23 results. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25

1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: Okay. And -- and this 3 may -- this may be a simplistic or naive question on my 4 part, but let's assume we're dealing with a sudden and 5 unexpected death of a child that -- that has not 6 necessarily at that point in time been characterized as a 7 major case with -- for the purposes of the manual, would 8 there be any reason why the protocol that we've just 9 identified at page 44 shouldn't equally apply to those 10 kinds of cases, as well? 11 MR. ROBERT KEETCH: I believe the protocol 12 would apply to any autopsy, including the death -- any 13 death involving a young child. 14 MR. MARK SANDLER: Okay. 15 MR. ROBERT KEETCH: It's gen -- that's 16 generally accepted practice relative to how autopsies are 17 conducted and that, at least in Sudbury, if not in 18 Ontario, at this point in time. 19 MR. MARK SANDLER: Okay. And help me out 20 as to this, if a sudden and unexpected death of a child 21 were to take place in Sudbury tomorrow, would it go to Dr. 22 Queen, or would it go to Toronto, or -- or do you know? 23 MR. ROBERT KEETCH: Again, that's going to 24 be a judgment call that the local coroner's going to make 25 in relation to ongoing consultation with the Regional

1 Coroner, and -- and basically we're not involved in that 2 discussion. They make the determination where the autopsy 3 is going to be conducted and then we'll send 4 representation to be in attendance during the autopsy. 5 COMMISSIONER STEPHEN GOUDGE: And Dr. 6 Queen is attached to one of the Sudbury hospitals? 7 MR. ROBERT KEETCH: He is. 8 COMMISSIONER STEPHEN GOUDGE: Which one? 9 MR. ROBERT KEETCH: Well, there's only one 10 (1). I mean -- 11 COMMISSIONER STEPHEN GOUDGE: There's only 12 one (1) there? 13 MR. ROBERT KEETCH: Yeah. There is the 14 Sudbury Regional Hospital by name and then we have three 15 (3) sites. 16 COMMISSIONER STEPHEN GOUDGE: Probably two 17 (2) or three (3) sites because I remember -- 18 MR. ROBERT KEETCH: Three (3) sites and a 19 new -- 20 COMMISSIONER STEPHEN GOUDGE: -- from my 21 law practice -- 22 MR. ROBERT KEETCH: Yeah. 23 COMMISSIONER STEPHEN GOUDGE: -- that 24 there were a number of hospitals up there. 25 MR. ROBERT KEETCH: They're under -- or

1 they're currently under the same management and in the 2 process of moving into a one (1) site location when 3 construction is finalized. 4 5 CONTINUED BY MR. SANDLER: 6 MR. MARK SANDLER: All right. And I take 7 it you've attended, whether as a forensic identification 8 officer or as an investigator, both autopsies that have 9 been conducted in Sudbury and in Toronto. 10 Am I right as to that? 11 MR. ROBERT KEETCH: That's correct. 12 MR. MARK SANDLER: All right. And have 13 you attended case conferences as well? 14 MR. ROBERT KEETCH: Yes, I have. 15 MR. MARK SANDLER: And have those been 16 conducted both in Sudbury and in Toronto, depending upon 17 circumstances? 18 MR. ROBERT KEETCH: Yes, sir. 19 MR. MARK SANDLER: Okay. So we may come 20 back to that in the context of some of the systemic issues 21 that -- that are raised. 22 So just continuing on very briefly in the 23 manual, and I've just about completed what we're going to 24 look at just for the purposes of today's discussion. 25 At page 45 of the -- of the same manual, we

1 also see that the manual sets out obligations to deal with 2 evidence samples. So we see in the middle of the page: 3 "The major case manager shall ensure 4 evidence is preserved using the best 5 current practices and the Centre for 6 Forensic Sciences is consulted for 7 clarification when necessary. The major 8 case manager shall, when appropriate, 9 consult with the coroner and/or the 10 pathologist regarding the seizure of 11 biological samples which may include..." 12 And then there are a number of them that 13 are listed there. 14 And again, that accords with -- with the 15 practice as you understand it? 16 MR. ROBERT KEETCH: That's correct. 17 MR. MARK SANDLER: And just as a matter of 18 curiosity. Reference was made during -- during the 19 recital of your curriculum vitae to the Northern Forensic 20 Laboratory. 21 Do you generally deal, as a police service, 22 with the Centre for Forensic Sciences in Toronto or the 23 Northern Forensic Laboratory? 24 MR. ROBERT KEETCH: Generally, with the 25 Northern Forensic Laboratory.

1 COMMISSIONER STEPHEN GOUDGE: Is it in 2 Sudbury? 3 MR. ROBERT KEETCH: No, it's actually in 4 Sault Ste. Marie. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: All right. And that's 8 -- and that's where samples would go, such as the samples 9 that are described here, when needed? 10 MR. ROBERT KEETCH: Generally. 11 MR. MARK SANDLER: Okay. 12 MR. ROBERT KEETCH: Unless the specific 13 area of testing that we're requiring isn't offered at that 14 location then the samples would be forwarded to the Centre 15 of Forensic Sciences. 16 MR. MARK SANDLER: Okay. Now, if we can 17 leave the manual for a moment and -- 18 COMMISSIONER STEPHEN GOUDGE: Just, this 19 is an obvious question, Inspector, but the major case 20 manager would be the senior police officer involved? 21 MR. ROBERT KEETCH: Not necessarily. I 22 mean, in a -- as I said earlier, we're talking about 23 responsibilities and functions and duties, not 24 individuals. So in a -- and I'd hate to characterize a 25 sexual assault as ever a simplistic sexual assault --

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. ROBERT KEETCH: -- or a minor sexual 3 assault. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. ROBERT KEETCH: But in a minor sexual 6 assault, you may have an investigator filling all three 7 (3) roles -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. ROBERT KEETCH: -- the manager, the 10 primary investigator and the file coordinator. Depends on 11 the complexity of the investigation as to whether you see 12 one (1) individual filling those roles or three (3) 13 specific individuals filling the three (3) specific roles. 14 COMMISSIONER STEPHEN GOUDGE: Right. But 15 they would all be members of the police service? 16 MR. ROBERT KEETCH: Yes. 17 COMMISSIONER STEPHEN GOUDGE: Is the Crown 18 ever involved in the case conference? 19 MR. ROBERT KEETCH: Yes, they are. I 20 believe that was referred to that -- 21 COMMISSIONER STEPHEN GOUDGE: Were they 22 one (1) of the participants? 23 MR. MARK SANDLER: Yes, they are. 24 MR. ROBERT KEETCH: -- they were one (1) 25 of the individuals --

1 COMMISSIONER STEPHEN GOUDGE: Yes, okay. 2 MR. ROBERT KEETCH: -- that was listed -- 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 MR. ROBERT KEETCH: -- to be present 5 during or -- or potentially present. 6 COMMISSIONER STEPHEN GOUDGE: The 7 initiation of the case conference, the timing, is the 8 responsibility of the major case manager? 9 MR. ROBERT KEETCH: That's correct. 10 MR. MARK SANDLER: Okay. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: Now if we can go to the 14 Nicholas case, and I'm going to take you to Tab 1 of your 15 materials, PFP143263, which is the overview report 16 concerning the Nicholas case. 17 And as I understand it, you were the lead 18 investigator in respect of the investigation into the 19 sudden and unexpected death of Nicholas. 20 Am I right? 21 MR. ROBERT KEETCH: That's correct. 22 MR. MARK SANDLER: And Nicholas died, 23 we've heard, on November the 30th of 1995 in Sudbury. And 24 at what stage were you assigned the case as lead 25 investigator, was it right from the outset?

1 MR. ROBERT KEETCH: It was right from the 2 outset, upon the initial call into the police. 3 MR. MARK SANDLER: All right. And was 4 your first attendance at the -- at the home of the 5 deceased or at the hospital? 6 MR. ROBERT KEETCH: Nicholas had been 7 transported to hospital. While ambulance were attempting 8 to resuscitate, the call came into the police. Relative 9 to him arriving at hospital and subsequently passing away 10 and that necessitated my attendance at the hospital 11 initially. 12 MR. MARK SANDLER: All right. And -- and 13 we've actually seen from the overview report -- I'm going 14 to take you to page 8, if I may, at paragraph 23, we see 15 under, "Initial Investigation by the Sudbury Regional 16 Police", that you conducted the initial investigation on 17 November 30th, and that would be the date of death. 18 And December the 1st, you interviewed and 19 took statements from Lianne XXXX, Dr. Main and the 20 ambulance attendants. You also visited Nicholas' home and 21 spoke with his grandfather, Mr. XXXX. You examined the 22 scene, and in particular, the sewing table. 23 And just stopping there for a moment, just 24 to refresh everyone's memory, the reason there's reference 25 to the sewing table is because as I suggest, the account

1 that had been provided to you by Nicholas' mother, is that 2 Nicholas had crawled under the grandmother's sewing 3 machine. She'd heard her son crying, which sounded 4 unusual, and assumed that he'd hit his head on the sewing 5 machine, because she saw him fall from a standing to 6 sitting position. 7 Is that right? 8 MR. ROBERT KEETCH: That's correct. 9 MR. MARK SANDLER: And then -- then the 10 child went into difficulties, which I won't go through 11 with you at this point in time. 12 But that accords with -- with your 13 understanding of -- of the position that was taken by the 14 deceased's mother, is that right? 15 MR. ROBERT KEETCH: That's correct. Just 16 to clarify the -- all of the -- those events took place on 17 the 30th of November. I went to the hospital, I spoke to 18 the attending physician, I interviewed Lianne, and 19 attended on the -- at the residence all on that particular 20 day. And -- and the interview of Lianne actually took 21 place at a hospital. 22 MR. MARK SANDLER: All right. And -- and 23 just to be clear, had this case happened today, would your 24 conduct have been any different than it was on November 25 the 30th?

1 MR. ROBERT KEETCH: The only thing I 2 potentially would do differently, in hindsight, is the 3 interview of Lianne. I would have spent more time in 4 relative -- in relation to that interview, and ens -- 5 ensure that I took a -- a pure version state -- what 6 police refer to as a pure version statement. 7 And just to educate everybody, basically 8 what that does is you ask an open-ended question, and then 9 record their comments or their interview verbatim. And 10 the only thing that does for police is gives the potential 11 to do a statement analysis on that statement. And that 12 would be one (1) of my recommendations relative to SIDS or 13 SUDS death investigations, is that all attempts be made to 14 do a pure version statement with the last known caregiver 15 of -- prior to the death of -- involving the infant child. 16 MR. MARK SANDLER: Now -- 17 COMMISSIONER STEPHEN GOUDGE: What kind of 18 statement did you call it? 19 MR. ROBERT KEETCH: Pure -- it's pure 20 version statement. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: And I'll -- I'll ask 24 you some questions to -- to elucidate what this is all 25 about. As I understand it, one (1) of the investigative

1 tools that is used by some or all police forces is 2 statement analysis. 3 Is that right? 4 MR. ROBERT KEETCH: That's correct. 5 MR. MARK SANDLER: And statement analysis 6 involves an examination by a specialist of the statement 7 that's provided by -- by a party or a suspect, with a view 8 to determining whether it demonstrates, for example, 9 badges of deception. 10 Is that right? 11 MR. ROBERT KEETCH: That's correct. 12 MR. MARK SANDLER: In the choice of 13 phrases that are used, or -- or the language that's 14 employed. 15 Am I right? 16 MR. ROBERT KEETCH: That's one (1) of the 17 things that we would examine, yes. 18 MR. MARK SANDLER: All right. And -- and 19 what you're indicating to the Commissioner is that 20 statement analysis, and -- and people have very different 21 views as to the validity or lack of validity of statement 22 analysis, but -- but one (1) of the premises as I 23 understand it, of statement analysis is that at first 24 instance, a pure version statement should be taken where, 25 in effect, the party is allowed to tell the entire story

1 uninterrupted by questions and answers, so that -- so that 2 you're getting the words of that individual as opposed to 3 the words of the investigator? 4 Do I -- do I have that right? 5 MR. ROBERT KEETCH: That's correct. 6 MR. MARK SANDLER: Okay. 7 COMMISSIONER STEPHEN GOUDGE: And that's 8 the opened ended question? 9 MR. ROBERT KEETCH: One (1) opened 10 question, and then record the response verbatim, and -- 11 and that would be potentially used for statement analysis. 12 And -- and statement analysis is just one (1) of many 13 investigative tools that police have to utilize during 14 various investigations. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: And to jump ahead, that 18 statement was none the less subjected to statement 19 analysis by an officer with the OPP. 20 Am I right? 21 MR. ROBERT KEETCH: That's correct. 22 MR. MARK SANDLER: And -- and he expressed 23 some concerns and formed some opinions about the 24 statement, but as -- as you're indicating to the 25 Commissioner, it's validity was reduced somewhat because

1 the statement was not a pure version statement? 2 MR. ROBERT KEETCH: The manner in which I 3 took the statement, yes. 4 MR. MARK SANDLER: All right. And when 5 you say that it wasn't a pure version statement, I take it 6 that you are eliciting her responses through questions and 7 answers? 8 MR. ROBERT KEETCH: That's correct. 9 MR. MARK SANDLER: Okay. We may come back 10 to that topic a little bit later on, but in any event, we 11 see at page 9 of the overview report that -- that Sergeant 12 Thibeault of the Sudbury Regional Police Forensic Unit 13 attended the autopsy on December the 1st, and stopping 14 there for a moment. 15 Did you attend the -- the initial autopsy? 16 MR. ROBERT KEETCH: No, I did not. 17 MR. MARK SANDLER: And again, would that 18 reflect a practice that would be different today than it - 19 - than it was at the time or can you say? 20 MR. ROBERT KEETCH: There's no requirement 21 that the -- the investigating officer attend. Again, that 22 would be one (1) of the recommendations I think that I 23 would make to this Commission relative to police 24 involvement in SIDS or SUDS death investigations that I 25 think it's in the best interest of all of us that the

1 investigating officer attend that post-mortem. 2 MR. MARK SANDLER: All right. And it's 3 probably self-evident, but what is the value added, as you 4 see it in ensuring that the investigating officer and not 5 only the Forensic Identification Officer attend these 6 autopsies? 7 MR. ROBERT KEETCH: Well, I think you 8 provide the pathologist with firsthand knowledge relative 9 to the investigation, what you observed at the scene, what 10 you potentially observed in relation to injuries present 11 on the child while you've examined the child. 12 I think it just fatili -- facilitates 13 better exchange of information and potentially more 14 information, and -- and I think it's important that the 15 pathologist be provided with as much information that the 16 police are in possession of prior to the autopsy. 17 MR. MARK SANDLER: And I take it there's 18 also an advantage going the other way to -- to have the 19 investigating officer hearing firsthand from the forensic 20 pathologi -- pathologist what he has to say or she has to 21 say? 22 MR. ROBERT KEETCH: Yes, I think that's a 23 fair statement as well. 24 MR. MARK SANDLER: All right. Now, we see 25 from paragraph 25 that on December the 4th, several days

1 later, you contacted Children's Aid Society and learned 2 that there were no prior reports of child abuse concerning 3 Nicholas or ongoing investigations regarding Ms. XXXX. 4 On January the 10th, you received results 5 from the Northern Forensic Laboratory indicating no 6 significant findings to contribute to the death. On 7 January the 10th, you also spoke to Dr. Chen, the 8 pathologist, and according to your notations, Dr. Chen 9 said he would be submitting a report for the coroner 10 attributing Nicholas' death to Sudden Unexpected Death. 11 You recommended that the incident be marked 12 closed. So stopping there for a moment. As -- as I 13 understand it, as of that point in time, this was a matter 14 that was regarded by the Sudbury Police Service and you 15 specifically as the investigator as -- as a natural death 16 and one that did not require further criminal 17 investigation? 18 MR. ROBERT KEETCH: That's correct. 19 MR. MARK SANDLER: All right. And -- and 20 just to be clear, we -- we see -- if I can just take you 21 back to -- to paragraph 19 at page 7 at the bottom of that 22 page. We see that Sergeant Robert Keetch, and that's you, 23 turning to page 8, observed Nicholas' body shortly after 24 death and noted a small bump on the right side of the 25 head.

1 And that's contained in -- in the police 2 investigation report that you prepared and is dated 3 November the 30th of 1995. 4 And again, does that accord with your 5 recollection? 6 MR. ROBERT KEETCH: It does. 7 MR. MARK SANDLER: And -- and again, I 8 take it in the context of the explanation that had been 9 provided by -- by the mother including that part of the 10 explanation where it appeared that she -- she assumed that 11 the child had bumped its head on -- on the sewing table, 12 that would have appeared to you to have conformed to that 13 explanation, at that point in time? 14 MR. ROBERT KEETCH: Appeared consistent 15 with the explanation, yes, sir. 16 MR. MARK SANDLER: Okay. I've 17 deliberately tried to avoid the word "consistent with". 18 But it -- it -- in any event, it -- it appeared -- well, 19 you know what, I'll leave it as is. I won't have you -- 20 COMMISSIONER STEPHEN GOUDGE: Hard to find 21 another word, unfortunately. 22 MR. MARK SANDLER: -- I won't have you 23 wrestle with the dilemma that the rest of us have to deal 24 with, at some point in time. 25 COMMISSIONER STEPHEN GOUDGE: The dilemma,

1 Inspector, is that reports that read "consistent with" 2 can, from some perspectives, be seen to be ambiguous; that 3 is, if it is consistent with the story, it is also 4 consistent with other things or is -- so. 5 MR. ROBERT KEETCH: Okay. 6 COMMISSIONER STEPHEN GOUDGE: How about 7 correspondent with the story? 8 MR. ROBERT KEETCH: That's -- that's fair. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: Much better. 12 MR. ROBERT KEETCH: The one (1) thing I 13 might add, when -- when I was reviewing the information 14 relative to this, and again I speak to attendance at the 15 autopsy, I note that during Dr. Chen's post-mortem report, 16 he indicates -- he speaks to that injury and -- and 17 attributes it to potentially a needle mark which would 18 have been part of the resuscitation effort by the medical 19 practitioners. 20 And again, that's something that I think I 21 missed out on that discussion by not being present at the 22 autopsy and -- 23 MR. MARK SANDLER: Right. 24 MR. ROBERT KEETCH: -- that's the type of 25 information -- you know, an example of the information

1 that could be exchanged between the two (2) of us that 2 could potentially clear up confusion on either of our 3 part. 4 MR. MARK SANDLER: All right. So -- so 5 what we really should say is that -- is that the bump that 6 you observed didn't cause concern, either as a result of 7 the explanation that you had been given, or as it turns 8 out, from reviewing Dr. Chen's report at that point in 9 time, there was an innocent explanation for it? 10 MR. ROBERT KEETCH: That's correct. 11 MR. MARK SANDLER: If we can move from 12 there to one (1) timing issue that arises from all of 13 this, because we see from the material that I've already 14 read you that it appeared that the results or -- or the -- 15 or the exhibits that had been submitted to the Northern 16 Forensic Laboratory for testing had been returned fairly 17 promptly and you -- and that you had -- and that you had 18 findings from the lab in -- in January. 19 But we also know that Dr. Chen's report was 20 not dated until about eight (8) months later. And you'll 21 see this at paragraph 28 at page 10 of the same overview 22 report. So you'll see paragraph 28: 23 "Subsequent toxicology and radiology 24 tests completed in December and January 25 revealed no significant findings. Dr.

1 Chen produced his autopsy final report 2 on August the 14th of 1996." 3 Now, stopping there for a moment, was that 4 typical or atypical for the production of autopsy final 5 reports or post-mortem reports on cases in which you had 6 been involved? 7 MR. ROBERT KEETCH: It tended to be 8 typical. 9 MR. MARK SANDLER: All right. And was it 10 a source of concern or frustration on the part of the 11 police service? 12 MR. ROBERT KEETCH: It could be, depending 13 on the type of investigation. Obviously if it was a 14 homicide investigation, then access to a timely post- 15 mortem report is essential, but I mean in this -- in this 16 investigation Dr. Chen had re -- provided me with his 17 conclusion. The receiving of a document would just be 18 basically a formality if it was -- the conclusions were 19 similar. 20 MR. MARK SANDLER: So -- so had that been 21 the end of the matter, in other words, had -- had his 22 final opinion not been questioned, either through the 23 regional coroner or through a pediatric review committee, 24 then the -- then the delay wouldn't have had any prejudice 25 to -- to any ongoing police investigation, but that, of

1 course, is not often the case, right? 2 MR. ROBERT KEETCH: Yeah, that's correct. 3 MR. MARK SANDLER: Does -- 4 COMMISSIONER STEPHEN GOUDGE: And I take 5 at this point, Inspector, reading the bottom line in Dr. 6 Chen's post-mortem report, the conclusion, as you've said 7 to Mr. Sandler, was natural cause of death. 8 Was the general sense, either yours, or 9 what you saw in Dr. Chen, that it was the bump on the head 10 that had caused the death or was that simply just another 11 factor? 12 MR. ROBERT KEETCH: I don't think we 13 really had a definitive answer, what caused Nicholas' 14 death. And we had the discussion this morning again; I 15 still don't know that we have a definitive answer relative 16 to Nicholas' death, what ultimately caused his death. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. MARK SANDLER: All right. 19 MR. ROBERT KEETCH: And I don't know if I 20 really answered your question. 21 COMMISSIONER STEPHEN GOUDGE: No, you did. 22 I mean, that's a very straightforward answer, you know. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: As a matter of fact,

1 you've -- you've foreshadowed what was later found by a 2 number of forensic pathologists who have said the 3 appropriate characterisation of this death was 4 undetermined. 5 So if I can take you to page 13 of the 6 overview report, paragraph 41, we actually see that on 7 November the 25th of 1996 the regional supervising 8 coroner, Dr. Uzans, referred this case to the Pediatric 9 Review Committee and he reflected in a letter to your 10 Chief at the time, Chief McCauley (phonetic), at paragraph 11 42, that the events described didn't have the features of 12 Sudden Infant Death Syndrome when the cause and manner of 13 death were not al -- elucidated, he requested that members 14 of the Pediatric Review Committee further examined the 15 case. 16 And -- and if you'd look with me at the 17 following page, page 45 -- sorry, paragraph 45, page 14, 18 and you'll see at -- at that paragraph the case was 19 assigned to Dr. Charles Smith of the Hospital for Sick 20 Children for an initial review. 21 One (1) person was assigned for the initial 22 review on the grounds that the PRC could not testify in 23 the event that court testimony was required." 24 Now I want to ask you about this because it 25 raises one (1) of the systemic issues that -- that you

1 would otherwise, I suspect, want to address at the end of 2 your testimony and that is: 3 Did you ever have concern, down the piece, 4 about the fact that this matter had been assigned to Dr. 5 Smith alone as opposed to -- to the Paediatric Review 6 Committee as a whole? 7 MR. ROBERT KEETCH: Now are we talking at 8 that point in time or -- 9 MR. MARK SANDLER: Down the road. 10 MR. ROBERT KEETCH: -- in -- I can tell 11 you now that my personal opinion relative to the position 12 that I sit in now, given all of the information that I 13 have access to, would be that the -- that information 14 should have gone forward to the committee, the entire 15 committee, and been reviewed by the committee and then 16 potentially referral back to the police service as a 17 result of the findings of that committee. 18 MR. MARK SANDLER: All right. And what -- 19 what do you think about the validity of the -- of the 20 position that one (1) person was assigned for the initial 21 review on the grounds that the PRC could not testify in 22 the event that court testimony was required? 23 MR. ROBERT KEETCH: I don't know that I 24 agree with that statement. As I've said earlier, I've 25 been involved in numerous case conferences where

1 representation from the Office of the Chief Coroner has 2 been present as well as representation from the Crown 3 Attorney's Office and I've yet to see any of those 4 individuals subpoenaed to court to provide testimony in 5 relation to the discussions that have taken place. 6 MR. MARK SANDLER: All right. And again, 7 jumping ahead in time for a moment. 8 Did there come to be a time later in this 9 investigation where you would have liked to have the 10 benefit of other opinions than -- than Dr. Smith's? 11 MR. ROBERT KEETCH: Certainly. 12 MR. MARK SANDLER: Okay. Well, now what 13 we see, if we look at the events that followed the 14 assignment of this file to Dr. Smith is that -- and we see 15 this at paragraph 46, that according to a later affidavit 16 that Dr. Smith swore, he had his colleague, Dr. Babyn, 17 review the x-rays and Dr. Smith reflected in this later 18 affidavit that Dr. Babyn initially was reviewing the copy 19 of the -- of the radiographs and that he showed Dr. Smith 20 two (2) changes: 21 "Marked widening of the skull sutures; 22 and 2) Changes to the left side of the 23 mandible which could be interpreted as a 24 mandibular fracture." 25 And he reflected that he showed the copy

1 radiographs to Dr. Armstrong, a neuroradiologist, at the 2 Department of Diagnostic Imaging at the Hospital for Sick 3 Children. Dr. Armstrong, who was unaware of Dr. Babyn's 4 findings, independently confirmed the presence of widely 5 split skull sutures. 6 He indicated he was uncertain of the 7 mandibular changes on the balance of probability it 8 represented a fracture but he wished to review the 9 original films. 10 Now just stopping there for a moment. I 11 won't ask you about the mandibular fracture right now 12 because I know that your understanding of what the 13 evidence showed about the fracture was modified as the 14 investigation progressed. 15 Am I right? 16 MR. ROBERT KEETCH: That's correct. 17 MR. MARK SANDLER: But I just want to 18 focus on that aspect where Dr. Smith talks about getting 19 an opinion from Dr. Babyn at that point that showed 20 "marked widening of the skull sutures," and from Dr. 21 Armstrong that showed "widely split skull sutures." 22 And we see in the following paragraph, at 23 paragraph 47, that Dr. Babyn wrote to Dr. Cairns on 24 January the 13th of 1997. And what he told Dr. Cairns, in 25 part, is reflected at paragraph 3, and it says:

1 "The examination of the skull shows mild 2 diastasis of the coronial and sagittal 3 sutures with an area in the occiput 4 which may be an accessory suture, 5 however, skull fracture is not excluded 6 which may be better seen on the original 7 radiographs." 8 I'm not going to ask you for pathological 9 opinions here, but one (1) of the things that -- that 10 we've heard here is that the College of Physicians and 11 Surgeons later looked at some of the issues arising from 12 the -- from this case and -- and found, in part, that Dr. 13 Smith had overstated what the information that had been 14 provided to him on the extent to which there was a marked 15 widening or widely split skull sutures. 16 In the course of your investigation, were 17 you ever aware of any differences between what Dr. Babyn 18 had to say or Dr. Armstrong had to say and what Dr. Smith 19 was saying about the state of these skull sutures? 20 MR. ROBERT KEETCH: No, the only 21 information -- I -- I had never seen these consultation 22 reports or had access to the consultation reports. The 23 only thing that Dr. Smith had maintained while we were 24 speaking with him, was the widening of the skull sutures. 25 The indication of that in the radiographs -

1 - the original radiographs -- and then subsequently in the 2 second -- the results of the second post-mortem, there was 3 also reference again to the -- the widening of these skull 4 sutures, and that being indicative, potentially, of blunt 5 force trauma to the head and, ultimately, resulting in the 6 death of Nicholas. 7 MR. MARK SANDLER: Just looking at it 8 systemically, would you have liked to see -- and I'll 9 leave aside the debate for others as to whether or not 10 he's accurately captured what he was being told by the 11 radio -- radiologist about these skull sutures. 12 Would you have liked to have seen, as part 13 of the material provided to you on the case, any of the 14 consultation reports that were, in turn, being provided to 15 Dr. Smith? 16 MR. ROBERT KEETCH: I would probably say 17 yes, as long you are going to provide me someone with the 18 medical expertise to interpret them. 19 COMMISSIONER STEPHEN GOUDGE: Yes, and 20 that's the -- 21 MR. ROBERT KEETCH: Or independently 22 interpret them. 23 COMMISSIONER STEPHEN GOUDGE: -- 24 difficulty, Inspector -- 25 MR. MARK SANDLER: That's the challenge.

1 COMMISSIONER STEPHEN GOUDGE: -- isn't it? 2 I mean let's suppose that in a case conference, that -- a 3 hypothetical case conference about a case like Nicholas' 4 you'd been presented with the pathologist's finding, or 5 the pathologist's statement that there was marked widening 6 of skull sutures, and also had the consult from the 7 radiologist saying, in fact, mild widening. 8 Would that be the kind of thing that you 9 would pick up, or would you rely on the pathologist for 10 that? 11 MR. ROBERT KEETCH: I would like to hope 12 that I would -- I mean, I can't answer that question, 13 because I didn't have it. But I would like -- 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 MR. ROBERT KEETCH: -- to hope that I 16 would be able to pick up on that, and then -- 17 COMMISSIONER STEPHEN GOUDGE: That's a -- 18 there's an element of medical sophistication in that 19 distinction that is, at least, a challenge for a non- 20 medical person. 21 MR. ROBERT KEETCH: A -- a definite 22 challenge. And I think you can see that, kind of, 23 indicative on the -- when we go further into the testimony 24 relative to the twenty (20) questions that I had 25 handwritten out to ask Dr. Smith relative to Nicholas'

1 consultation report, was a lot of that; was attempts on my 2 part to try and clarify some of the medical infor -- 3 information that was being provided to me, but really not 4 having, you know, an extensive knowledge in relation to 5 how to interpret that medical information. 6 MR. MARK SANDLER: Just -- 7 COMMISSIONER STEPHEN GOUDGE: The course 8 that you talked about earlier, Pediatric Death 9 Investigation Police College Report, I have no idea what 10 kind of substantive material might be involved in a course 11 like that. 12 Would it ever be conceivable that it would 13 include an element of head injury medicine? 14 MR. ROBERT KEETCH: It could be a 15 component, because a lot of -- I think if you look at 16 history, a lot of deaths involving children, either 17 involving Shaken Baby Syndrome, which is -- you know, you 18 see head injuries associated to that -- 19 COMMISSIONER STEPHEN GOUDGE: Yes, head 20 injuries are a common -- 21 MR. ROBERT KEETCH: -- so it would be -- 22 COMMISSIONER STEPHEN GOUDGE: -- cause -- 23 MR. ROBERT KEETCH: Yeah. 24 COMMISSIONER STEPHEN GOUDGE: -- of 25 pediatric death, which is why I picked that.

1 MR. ROBERT KEETCH: Yep, I think that 2 would be reasonable to provide, you know, an overview 3 relative to that. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 Sorry, Mr. Sandler. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: No, not at all. And if 9 we can just -- and again, I'm -- I'm moving you back and 10 forth in time, and I apologize for that in advance. If 11 you'd go to Tab 10 of the materials, at 139273, which is 12 page 67 for you, Inspector. 13 14 (BRIEF PAUSE) 15 16 MR. MARK SANDLER: Just so you'll know 17 that my last question didn't come out of the depths of my 18 imagination only, we see at page 67 a series of questions 19 that you prepared to put to Dr. Smith for his responses a 20 little bit later in the investigation, am I right? 21 MR. ROBERT KEETCH: Mm-hm. That's 22 correct. 23 MR. MARK SANDLER: And we're going to come 24 to when -- when this took place in the sequence of events, 25 but for now, I'd just look at Item 2 where we see:

1 "Evaluation of extremities compromised 2 because of quality of films produced, 3 written consultation requested of Dr. 4 Babyn." 5 And then you've got the notation, "would 6 like copy of consultation report." So it appears that -- 7 that some thought was being given by you about, at least, 8 the prospect of getting a consultation report from Dr. 9 Baybn, is that right? 10 MR. ROBERT KEETCH: That's correct. 11 MR. MARK SANDLER: Okay. 12 COMMISSIONER STEPHEN GOUDGE: It certainly 13 wouldn't have hurt. I mean, you might conceivably have 14 picked up the distinction in language that you and I 15 talked about a minute ago? 16 MR. ROBERT KEETCH: Yes. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Now if we can go back 20 to the overview report at -- at Tab 1, and I'm going to 21 take you to page 19. And we see -- I'm sorry, and I 22 should go back -- I should go back to the -- the previous 23 -- previous page for a moment. Page 15. I'm sorry. And 24 you'll see page 15 at the bottom of the page. On January 25 the 24th of 1997, Dr. Smith produced a consultation

1 report. 2 And then moving ahead to page 17. We see 3 his conclusion on the middle of the page: 4 "In the absence of an alternative 5 explanation, the death of this young boy 6 is attributed to blunt head injury. 7 Anatomical diagnoses..." 8 And then under head injury, it reflects: 9 "Cerebral edema, increased head 10 circumference, splitting of skull 11 sutures on radiography, fracture of left 12 side of mandible on radiography, and 13 scalp injury." 14 And -- do you see that? 15 MR. ROBERT KEETCH: I do, sir. 16 MR. MARK SANDLER: And I'm going to ask 17 you about the extent to which this information was 18 communicated to you subsequently, so if you'd look with me 19 at page 19 of the overview report, we see that on January 20 the 28th of 1997, four (4) days after that report was 21 signed, a meeting was held at the Sudbury General 22 Hospital. 23 Dr. Deacon, Dr. Uzans, Dr. Smith, and 24 officers from the Sudbury Regional Police discussed miss - 25 - Dr. Smith's consultation report. And -- and were you

1 present at that meeting? 2 MR. ROBERT KEETCH: I was. Just to 3 clarify, I believe that meeting took place at our police 4 headquarters. 5 MR. MARK SANDLER: Okay. And so -- so it 6 shouldn't say Sudbury General Hospital, it should say at 7 the Sudbury Police Headquarters? 8 MR. ROBERT KEETCH: That's correct. There 9 was a further meeting at the Sudbury Regional Hospital 10 that Dr. Deacon, Dr. Uzans, myself, and Dr. Chen were 11 present for, but this particular meeting, I think you're 12 speaking to here, was at the police station. 13 MR. MARK SANDLER: All right. And what do 14 you recall -- in general terms -- you were told about Dr. 15 Smith's conclusions as a -- as a result of his work on the 16 consultation report? 17 MR. ROBERT KEETCH: Basically, he provided 18 us with a copy of the consultation report, took us through 19 it, and -- and based on those criteria in his examination, 20 at this point in time, the death of Nicholas was 21 potentially a hom -- potentially/probably as a result of a 22 homicide. 23 MR. MARK SANDLER: All right. And when 24 you reflected the certain indications, I know you've used 25 the term "pillars" to describe the basis for his opinion.

1 Did -- did he identify the pillars upon 2 which his -- his opinion was based, at that point in time? 3 MR. ROBERT KEETCH: I have -- they would 4 be basically the indications that you had previously read 5 relative to a head injury. I call those five (5) criteria 6 or five (5) indications that he had identified that 7 potentially raised this death investigation to a status of 8 a potential homicide. 9 MR. MARK SANDLER: Okay. 10 COMMISSIONER STEPHEN GOUDGE: The five (5) 11 items under paragraph 2 on page 17? 12 MR. ROBERT KEETCH: That's correct. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: And we're going to come 16 back to -- to those five (5) criteria or pillars or 17 indications in a few moments, but let me just ask you 18 generally now. 19 Did there come a time when -- when you 20 began to believe that some of the pillars or criteria no 21 longer were operative in this case? 22 MR. ROBERT KEETCH: That's correct. 23 MR. MARK SANDLER: And what can you say as 24 to whether Dr. Smith maintained his opinion in the face of 25 some of those criteria or pillars no longer being

1 operative? 2 MR. ROBERT KEETCH: He -- he seemed to 3 maintain his opinion from the initial consultation to the 4 final consultation and -- and used the same five (5) areas 5 basically that were indicative of the -- I would say four 6 (4) areas that were indicative of it potentially being a 7 homicide. 8 As a result of the second post-mortem, 9 obviously the fracture to the -- or potential fracture to 10 the left mandible was eliminated and/or that would leave 11 you with the four (4) pillars. But he didn't seem to vary 12 his opinion based on those four (4) pillars even though 13 some of the information that we'd garnered from, say, 14 family medical records seemed to dispel some of the 15 conclusions that he was making based on information that 16 was within those medical records. 17 MR. MARK SANDLER: And did that cause you 18 any concern? 19 MR. ROBERT KEETCH: It certainly did. 20 MR. MARK SANDLER: And why? 21 MR. ROBERT KEETCH: Well, because, you 22 know, he -- he was listing, let's say, five (5) 23 indications that he potentially felt this incident was 24 potential homicide. And, you know, the one (1) I'll go 25 to, probably the easiest to refer to is the increased head

1 circumference. 2 Three (3) days after Dr. Smith provided 3 this consultation report and met with us, I obtained 4 medical records through a search warrant for Nicholas' -- 5 from Nicholas' family physician, and part of those medical 6 records contained a growth chart or -- and projected 7 growth chart relative to Nicholas' head circumference. 8 And through Dr. Deacon, the coroner 9 assigned, we examined those records and, you know, looked 10 on the chart to project the potential head circumference 11 of Nicholas at the time of his death and I can tell you, 12 Nicholas had a very large head at birth and -- and had a 13 large head throughout his life. 14 And, you know, from examining that growth 15 chart, the poten -- the head circumference at the time of 16 his death was within the -- the range that would be 17 anticipated given his age at that particular time, and Dr. 18 Smith didn't appear receptive to discussions and/or 19 changing his pi -- opinion based on that medical 20 information. 21 MR. MARK SANDLER: Okay. Now, I want to 22 ask you a little bit more about -- about the chronology of 23 and surrounding the head circumstance, so that -- that's a 24 good entree to -- to do it, if we may. 25 So -- so if you'd look at Tab 8 -- sorry,

1 Tab 10, page 8, this is 139273, and these -- and these are 2 the entries contained in your investigations record book, 3 am I right? 4 MR. ROBERT KEETCH: That's correct. 5 MR. MARK SANDLER: And I have to tell you 6 that these are perhaps some of the neatest police officer 7 notebooks that I've ever dealt with in twenty-seven (27) 8 years, so -- so you should be commended for that. 9 MR. ROBERT KEETCH: Thank you. 10 MR. MARK SANDLER: We see the entry under 11 May the 2nd of 1997: 12 "Dr. Deacon attends, discussed medical 13 findings, request info, re deceased's 14 visit for ear infection. Dr. Deacon to 15 plot head circumference on graph, in 16 fact same." 17 And -- and that's a reference to what 18 you've just indicated a few moments ago? 19 MR. ROBERT KEETCH: That's correct. 20 MR. MARK SANDLER: And then we see on May 21 the 7th of 1997, you've reflected that you attend the 22 Sudbury Airport, you pick up Dr. Smith, transport him to 23 CID, and one (1) line down, provided medical records of 24 deceased to view from Sudbury General Hospital and Dr. 25 Anderson.

1 And so is that the reference to having 2 provided the -- the records that addressed, amongst other 3 things, head circumference to Dr. Smith on May the 7th? 4 MR. ROBERT KEETCH: That's correct. 5 MR. MARK SANDLER: All right. Now, if we 6 can freeze -- freeze that chronology in point in time and 7 -- and just look at some later things that were said about 8 this particular issue, because I'd like you to comment on 9 them, if you would. 10 And if you'd go to Tab 32, and Tab 32 is 11 PFP145001, and this is a letter from Mr. XXXX dated June 12 the 20th of 2001, to the investigator at the College of 13 Physicians and Surgeons, re: a complaint that he has made 14 against Dr. Smith that concerns the Nicholas file. 15 And Mr. XXXX reflects at the second 16 paragraph: 17 "If, in the course of your 18 investigation, you've spoken with 19 Detective Sergeant Bob Keetch of the 20 Sudbury Police, he may have provided 21 some revealing facts. Dr. Smith placed 22 great emphasis on Nicholas' head size as 23 proof of severe cerebral edema. When 24 Dr. Halliday provided a projected growth 25 chart showing that Nicholas' head size

1 was not enlarged in death, Dr. Smith 2 claimed that Nicholas' medical file had 3 not been available to him. That same 4 assertion was continued in his response 5 to my complaint." 6 On page 4 of his response, dated March 2, 7 2001, Dr. Smith states: 8 "In this case, I was not provided with 9 the measurements of his head 10 circumference during life. Sergeant 11 Keetch will or did tell you that on May 12 2nd, 1997, he asked Dr. Deacon, the 13 local coroner, to provide a projected 14 growth chart for Nicholas' head size. 15 Dr. Deacon concluded that Nicholas' head 16 size in life was 49 centimetres, the 17 same as in the autopsy report. One year 18 later Dr. Halliday also projected 49 19 centimetres at 11 months of age. More 20 interesting yet is the fact that 21 Sergeant Keetch provided Dr. Smith on or 22 before May 7, 1997 with a copy of Dr. 23 Deacon's projected growth chart and 24 Nicholas' medical file obtained from Dr. 25 Anderson, our family doctor.

1 This growth chart and the doubts about 2 the broken jaw were discussed with 3 Doctors Smith and Cairns during the 4 meeting of May 7, 1997, yet Dr. Smith 5 has conveniently maintained that this 6 information was not available to him. 7 He used the enlarged head as one (1) of 8 the justifications for requesting an 9 exhumation and perpetrating his head 10 injury theory." 11 Insofar as Mr. XXXX has summarized what you 12 did and what -- including what you provided to Dr. Smith, 13 has he accurately set it out? 14 MR. ROBERT KEETCH: Yes, sir. 15 MR. MARK SANDLER: Okay. And -- and in 16 that connection as well, if I can take you to a document 17 that you have, in loose form, beside you and it's 18 PFP145156. And this is the March 2nd, 2001 letter from 19 Dr. Smith to the College of Physicians and Surgeons of 20 Ontario that's referred to in Mr. XXXX's letter that I've 21 just taken you to a few moments ago. 22 And I just want to take you to several 23 passages that -- that relate to work that you did on the 24 investigative side. 25 And you'll see at page 3 of this document,

1 and he's responding to Mr. XXXX's complaint, and: 2 "Badge number 2 has failed to conduct an 3 appropriate review and assessment of the 4 facts pertaining to this case in that he 5 did not investigate Nicholas XXXX's 6 previous medical records, specifically 7 his head circumference in life." 8 And then he said: 9 "The practice of the Paediatric Death 10 Review Committee is to conduct its 11 review based on the documentation made 12 available to it. The adequacy or 13 completeness of that documentation is 14 not the responsibility of any individual 15 committee member. The committee members 16 do not have the authority to obtain 17 previous medical records. That 18 authority lies with the coroner or the 19 Regional Coroner who submits the case to 20 the committee. 21 Furthermore, when a pathologist performs 22 an autopsy for a coroner, the 23 pathologist is not responsible for 24 conducting the investigation or 25 obtaining the relevant documentation.

1 Responsibility for the investigation of 2 a death that falls under the Coroners 3 Act resides with the coroner and/or the 4 police. Relevant information is 5 obtained by means of a coroner's warrant 6 or seizure. Should it clearly be a 7 homicide, then under a criminal warrant. 8 The pathologist has no authority to 9 obtain any of this information. 10 The amount or type of information that 11 is provided to the pathologist on any 12 given case is under the control of the 13 coroner, the police and/or the Crown 14 attorney. 15 In this case, I was not provided with 16 the measurements of his head 17 circumference during life. 18 I recognize that changes in the velocity 19 of head growth are informative. 20 Nicholas' post-mortem head circumference 21 was clearly abnormal. It was measured 22 at fifty (50) centimetres, which is 23 beyond the 95th -- 8th percentile. 24 Regardless of the pre-mortem 25 measurement, such a post-mortem value

1 demands investigation. The presumption 2 here is that if I had known Nicholas' 3 head circumference during life, I would 4 not have concluded that the increased 5 weight of his brain was due to cerebral 6 edema, swelling of the brain. This 7 presumption is incorrect. There are 8 many indicators of cerebral edema of 9 which an increased brain weight is but 10 one (1). A sudden increase in head 11 circumference may also be explained on 12 this basis. 13 The radiographic finding of splitting of 14 the skull sutures is very important. 15 The separation of the bones of the skull 16 is most commonly due to increased inter- 17 cranial pressure from cerebral edema 18 which can result either from trauma or 19 from an underlying disease although 20 there was no evidence of the latter in 21 Nicholas." 22 And I won't read the -- the balance of the 23 passage except for the last line: 24 "The underlying significance of the 25 splitting of the sutures of Nicholas'

1 skull cannot be discounted simply 2 because he had a pre-mortem head 3 circumference that was greater than 4 normal." 5 So it would appear that Dr. Smith is making 6 two (2) points. The first is that he was not provided 7 with the measurements of Nicholas' head circumference 8 during life. 9 Do you agree with that? 10 MR. ROBERT KEETCH: No, I do not, but he 11 was -- the one (1) thing I'd like to refer to is when the 12 initial investigation went to the Death Review Committee 13 obviously that information wasn't -- 14 MR. MARK SANDLER: Right. 15 MR. ROBERT KEETCH: -- contained in the 16 file. But, you know, with reference to my notebooks 17 and/or the questions that I asked specific to that, it was 18 obvious that that information was provided -- 19 MR. MARK SANDLER: All right. 20 MR. ROBERT KEETCH: -- to him at the 21 meeting on the 7th of May. 22 MR. MARK SANDLER: So -- so in fairness to 23 Dr. Smith, although you don't agree with -- with the fact 24 that he was not provided with the measurements of the head 25 circumference during life, he was not provided with those

1 records at the time of his consultation report. He was 2 provided with them shortly thereafter. 3 MR. ROBERT KEETCH: That's correct. 4 MR. MARK SANDLER: Is that right? 5 MR. ROBERT KEETCH: That's correct. 6 That's a fair statement. 7 MR. MARK SANDLER: And -- and secondly, it 8 would appear that the point that he's also making to the 9 College of Physicians and Surgeons is that -- is that 10 regardless of his knowledge or lack of knowledge about 11 Nicholas' head circumference, the splitting of the sutures 12 should also figure prominently in whether cerebral edema 13 exists, is that right? 14 That's what he's saying, in any event? 15 MR. ROBERT KEETCH: That's what he's 16 saying. 17 MR. MARK SANDLER: All right. Now, I want 18 to ask you just about another feature of his response to 19 the College that -- that's contained here. And you'll see 20 at the -- near the bottom of page 2 he is responding to 21 Mr. XXXX's complaint that he did not read or consider 22 police interview reports regarding the circumstances or 23 events of Nicholas' death before he submitted his opinion 24 or conclusion. 25 And then he says:

1 "As indicated in my response to 2A, the 2 initial committee work is dependent on 3 the available documentation. In the 4 beginning, there was no significant 5 police investigation. It was only after 6 initial review of the case, as it had 7 been submitted to the Paediatric Death 8 Review Committee, that it was apparent 9 that a police investigation was 10 required. I was asked by the Chief 11 Coroner to attend a meeting with the 12 Sudbury Regional Police to apprise them 13 of the date, as it was initially 14 understood for purposes of assistance 15 only. Later, as more information was 16 made available to the police, they 17 shared it with me to the extent that 18 they felt it was reasonable and 19 necessary. They were under no duty to 20 share any or all of it with me. The 21 police investigation was not adequately 22 completed as the family of Nicholas XXXX 23 refused to answer questions." 24 And you'll see a similar -- a similar 25 sentiment that -- that is expressed a little bit later at

1 page 8 of the -- of his response to the College, second 2 full paragraph. 3 "I note that the police investigation 4 was never fully completed because of the 5 family's refusal to cooperate. 6 Therefore, whether a full police 7 investigation would have supported the 8 forensic evidence is a moot point. As 9 explained above, I agreed with the 10 decision not to proceed with a criminal 11 charge, given the information 12 available." 13 First of all, did Dr. Smith ever express a 14 concern to you that -- that the information he was 15 receiving as a result of the police investigation was 16 inadequate as a result of the family's refusal to 17 cooperate? 18 MR. ROBERT KEETCH: No, sir. 19 MR. MARK SANDLER: Did you ever feel that 20 the police investigation was inadequate or incomplete as a 21 result of any refusal on the part of the family to 22 cooperate? 23 MR. ROBERT KEETCH: The only refusal or 24 cooperation that I think were -- was present within this 25 investigation was the request to do a disinterment,

1 request for consent to disinter Nicholas' body. And then 2 the only other thing that I would illustrate was during 3 the second interview of Lianne when the -- what would be 4 described as the interview progressed to an interrogation 5 stage. 6 And she invoked her right to counsel, but - 7 - you know, can I understand where the family was coming 8 from in -- in the sense of not wanting Nicholas dug up, 9 yes -- disinterred? And can I understand Lianne invoking 10 her right to counsel, which is her right, yes. But I 11 don't agree that -- with the statements that Dr. Smith 12 makes in his document relative to the lack of cooperation. 13 Aside from those two (2) minor issues, the 14 family was fully cooperative with the police, basically 15 throughout the entire investigation, although at various 16 components or during various aspects of the investigation, 17 they were very upset with the police relative to what was 18 taking place. 19 And in hindsight, probably, I can 20 understand that, but, you know, I can't characterize them 21 as not cooperating with us. I don't think that's correct. 22 MR. MARK SANDLER: All right. Did you 23 ever tell Dr. Smith that you investigation was impeded in 24 any way as a result of the XXXX's refusal to cooperate? 25 MR. ROBERT KEETCH: No, sir.

1 MR. MARK SANDLER: Okay. Let's move back 2 to the chronology, if -- if we may. And -- and I'm going 3 to take you to Tab 1 again, which is this overview report 4 that you're becoming all too familiar with. And so -- 5 just so we understand the sequence, we know that Dr. Chen 6 did a post-mortem, the matter went to Dr. Smith, he 7 prepared a consultation report. 8 And then following the consultation report, 9 we see at page 20 of the overview report, shortly 10 thereafter, on May the 7th of 1997, a meeting was held at 11 the Sudbury Regional Police building with officers from 12 the Sudbury Regional Police, Dr. Cairns, Dr. Smith, and 13 Dr. Uzans. 14 They discussed the opinion of Doctors 15 Cairns and Smith, that it would be valuable to reexamine 16 Nicholas' body. 17 And were you present at that meeting, as 18 well? 19 MR. ROBERT KEETCH: Yes, sir, I was. 20 MR. MARK SANDLER: And -- and does that 21 accurately represent, in essence, what the bottom line was 22 as a result of the -- the meeting of the parties on that 23 date? 24 MR. ROBERT KEETCH: The necessity of a 25 second autopsy on Nicholas' body, yes, sir.

1 MR. MARK SANDLER: Okay. Now, I want to 2 ask you about -- about the questions that you earlier made 3 reference to and which are contained in your notebook. So 4 -- so I'm going to take you though -- to those, if I may, 5 and that -- that will take you back to Tab 10, PFP139273, 6 at page 67 of that tab. 7 8 (BRIEF PAUSE) 9 10 MR. MARK SANDLER: And could you advise 11 the Commissioner how it was that you came to prepare this 12 document, and what did you do with the document? 13 MR. ROBERT KEETCH: These were questions 14 that I wanted answers to when Dr. Smith attended at the 15 police service and, basically, these were from reviewing 16 his consultation report, as well as, you know, some 17 aspects of the investigation. These were areas that I 18 felt needed clarification on my part. 19 So prior to the meeting I wrote these 20 questions out -- specific questions -- that I wanted to 21 ask Dr. Smith rel -- relative to Nicholas' death 22 investigation and his consultation report. 23 MR. MARK SANDLER: And -- and did you ask 24 him these questions? 25 MR. ROBERT KEETCH: Yes, sir, I did.

1 MR. MARK SANDLER: And in some instances, 2 did -- did you record what he had to say about it on -- on 3 this document or -- or not? 4 MR. ROBERT KEETCH: I don't believe I 5 recorded the answers. And again, in hindsight, we should 6 have been taking briefing notes, capturing the various 7 questions and responses, but, you know, we didn't that 8 day. 9 And when you look back at this incident, if 10 there's some things that I could do differently, that's 11 certainly one (1) of things I'd do differently. There 12 would be someone capturing the minutes of these particular 13 meetings. 14 MR. MARK SANDLER: Okay, fair enough. And 15 we actually see that -- that -- in the questions that -- 16 that you posed for Dr. Smith, some issues that resonate 17 with -- with some of the issues that have later been 18 developed in the evidence that we've heard. 19 So we see, for example, wei -- number 3: 20 "Weight of brain significantly greater 21 than expected, supports cerebral edema, 22 evident on microscopic appearance of 23 brain, separation of skull sutures on 24 radiographic examination provides 25 further evidence."

1 And then you've got: 2 "Do -- or new original x-ray support 3 this separation of skull sutures?" 4 MR. ROBERT KEETCH: Yeah, see, originally 5 he had been provided copies of the radiographs from the 6 hospital during his initial meeting with us in January. 7 That's one (1) of the things that we had done. Dr. 8 Deacon, Dr. Uzans and myself had attended up at the 9 Regional Hospital and obtained cop -- or the original 10 radiographs, as well as numerous samples that were still 11 present at the hospital from Nicholas' initial autopsy. 12 So these -- this question is specific to 13 the further examination of those new original x-rays that 14 had been taken to Toronto that were provided to him in 15 January. 16 MR. MARK SANDLER: All right. And then we 17 see Item 4: 18 "Statement; increased head circumference 19 provides further evidence. From 20 examining medical records of Nicholas, 21 head circumference doesn't appear 22 unusually increased in size." 23 And you've already told the Commissioner 24 the -- what had prompted that, and this -- this just 25 reinforces your earlier evidence that this was a matter

1 that, indeed, was brought to his attention and discussed 2 with him. 3 MR. ROBERT KEETCH: That's correct. 4 MR. MARK SANDLER: And then you see -- 5 skipping to Item 8 at the following page, page 68, and I 6 won't take you to all of them, it says: 7 "Traumatic etiology or cause supported 8 by swelling of scalp by..." 9 MR. ROBERT KEETCH: I think that's your -- 10 MR. MARK SANDLER: 11 "...coroner of a mandibular fracture." 12 And then you've noted: 13 "Very, very slight reddish mark, not 14 inconsistent with bumping head. 15 Mandibular fracture, no longer likely." 16 And -- and what you're reflecting here, as 17 I understand it, is both that the mandibular fracture no 18 longer has application, so how does that affect his 19 findings, am I right? 20 MR. ROBERT KEETCH: Well, the information 21 that I had got relative to the examination of Dr. Babyn on 22 the originals was that it was less likely that there was a 23 left mandible fracture, but it couldn't be conclusively 24 eliminated pending the second autopsy. 25 MR. MARK SANDLER: And just stopping there

1 for a moment, because that -- that's a ve -- that's a very 2 fair characterization of the situation. It was only after 3 the exhumation that you were advised that there was no 4 evidence of mandibular fracture, and Dr. Smith reflected 5 as much in his final post-mortem report, is that right? 6 MR. ROBERT KEETCH: That's correct. 7 MR. MARK SANDLER: Okay. 8 COMMISSIONER STEPHEN GOUDGE: How would 9 you come to conclude that it was less likely? 10 MR. ROBERT KEETCH: That would -- I 11 believe that's in my notebooks relative to discussions 12 that I had with Dr. Smith prior to this meeting in -- in 13 May. And it was discussions that the two (2) of us had 14 relative to the examination of those original x-rays by 15 Dr. Babyn, but I believe that's contained in my notes, 16 from reviewing them this morning. 17 COMMISSIONER STEPHEN GOUDGE: So you would 18 have got that from Dr. Smith? 19 MR. ROBERT KEETCH: That's correct. 20 During the conversation that the two (2) of us had had 21 over the telephone. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: Okay. We actually

1 know, and I won't take you to it, but I can just read you 2 the entry that you did record on February the 14th, in a 3 handwritten note, seeming to reflect a conversation with 4 Dr. Smith that: 5 "Two radiologists have examined the 6 original x-rays and are not as convinced 7 that there's a fracture of the left 8 mandible as when they examined the 9 copies of the x-rays." 10 So that's what you're referring to? 11 MR. ROBERT KEETCH: That's correct. 12 MR. MARK SANDLER: And Dr. Smith advised 13 you of that? 14 MR. ROBERT KEETCH: That's correct. 15 MR. MARK SANDLER: Okay. And so back to 16 page 68 of -- of the -- of Tab 10 that we're looking at. 17 So you're -- you're asking how all of this is -- factors 18 in having regard to the fact that the mandibular fracture 19 may be less likely or no longer likely. 20 And you're also reflecting the fact that 21 insofar as there's reliance upon a swelling of the scalp 22 by the coroner, there was a very, very slight reddish mark 23 not inconsistent with bumping the head, so that -- that 24 raised an issue for you, I take it? 25 MR. ROBERT KEETCH: That's correct.

1 MR. MARK SANDLER: And -- and then item 9, 2 thoracic petechia suggests terminal asphyxia. And then 3 you've got: 4 "Cannot tell whether this preceded or 5 was caused by the cerebral edema." 6 Now, was that something that he told you or 7 -- or do you recall? 8 MR. ROBERT KEETCH: I don't recall. That 9 would probably have come as a result of, kind of, doing 10 some reading on my own trying to interpret some of the 11 medical terms he was -- were contained within that report. 12 MR. MARK SANDLER: Okay. And then we see 13 under Anatomical Diagnoses, you've -- you've listed the 14 entries that -- that he had in his consultation report. 15 And we see a head injury with cerebral edema, and there's 16 a checkmark there. 17 Increased head circumference, there's an X 18 there. Splitting of skull sutures, there's nothing there. 19 Fracture of left side of mandible, there's an X there. 20 And scalp injury, there's nothing along side that. Can -- 21 can you decipher that for us. 22 What was -- what was going on there? 23 MR. ROBERT KEETCH: Well, that's me making 24 -- probably making notes while we're going through the 25 discussions and kind of reviewing this diagnosis of his.

1 And as -- as we, kind of, referred to earlier there were - 2 - the foundation was basically built on five (5) pillars 3 and, you know, this is, kind of, reflective of the fact 4 that I see some of those pillars of the foundation 5 beginning to crumble. 6 And, you know, where -- where are we headed 7 with this? 8 COMMISSIONER STEPHEN GOUDGE: Are those Xs 9 your view or -- 10 MR. ROBERT KEETCH: Those are my -- yeah, 11 those are my Xs. 12 COMMISSIONER STEPHEN GOUDGE: But would 13 they reflect Dr. Smith's view that he could no longer rely 14 on the two (2) Xs? 15 MR. ROBERT KEETCH: No, those would be -- 16 I would believe those would reflect my view that we're no 17 longer relying on those -- that portion of the pillar to 18 support the foundation of his conclusion. 19 COMMISSIONER STEPHEN GOUDGE: What about 20 Dr. Smith at this point? Would he have still held to the 21 view that there were five (5) pillars or do you -- 22 MR. ROBERT KEETCH: I -- believe he's -- I 23 -- I don't have any independent recollection of that -- 24 those discussions, but I believe that he still held to 25 those because some of those pillars are still present in

1 the final consultation report that's given to us later 2 that fall. 3 COMMISSIONER STEPHEN GOUDGE: All right. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Okay. All right. If 7 we can move from there in -- in sequence to the overview 8 report yet again at Tab 1. And -- and if you'd look at 9 paragraph 61 of the overview report at page 21. And just 10 so that we have the -- the chronology set here. 11 Here we see that a few days after the 12 meeting was held with Dr. Smith and others, and it was 13 determined that it would be valuable to re-examine 14 Nicholas' body, you provided Ms. XXXX's statement on the 15 date that Nicholas died to Detective Sergeant Jim Van 16 Allen (phonetic), Behavioural Sciences Section, Ontario 17 Provincial Police. 18 And two (2) days later, he provided a 19 statement analysis to you, is that right? 20 MR. ROBERT KEETCH: That's correct. 21 MR. MARK SANDLER: And he stated that: 22 "The language contained in the statement 23 was indicative of possible deception 24 minimizing a responsibility through 25 passive language and tension between Ms.

1 XXXX, Nicholas, and Ms. XXXX's parents. 2 These findings cause me to believe that 3 Ms. XXXX is responsible for the action 4 that lead -- that led to the death of 5 her child. A mechanism of asphyxia is 6 suggested." 7 A couple of questions arising out of that 8 if I may? You've already said that -- that this wasn't a 9 peer version statement, and that had to affect the 10 validity of -- of what should be drawn from it. 11 Notwithstanding that fact, Detective 12 Sergeant Van Allen (phonetic) has expressed his statement 13 of analysis in -- in fairly stark terms, if I might put it 14 that way. 15 How much weight, if any, did you ultimately 16 place upon this statement of analysis? 17 MR. ROBERT KEETCH: It's an investigative 18 tool, and -- and that's all it is, is a tool. I mean it 19 will -- it's not evidence of anything. This -- in 20 fairness at this point in time, based on all of the 21 information that we had relative to the -- you know, the 22 consultation report, the discussions that we had had with 23 Dr. Smith, was I of the opinion that Lianne was 24 responsible for Nicholas' death at this point in time? 25 I would say that that's a fair statement.

1 MR. MARK SANDLER: All right. And did 2 that opinion change? 3 MR. ROBERT KEETCH: Yeah, ultimately the 4 opinion changed over time. I mean there were always some, 5 kind of, underlying issues that I could never resolve. 6 This case kind of -- you know, some cases you're never 7 able to put away. 8 This one (1) seemed to follow me. Not only 9 -- you're thinking about it all the time, it actually 10 lived under my desk for probably, you know, five (5)/eight 11 (8) years. 12 And I was always receiving correspondence 13 from Maurice XXXX, relative to the investigation, and -- 14 and, kind of, was aware of that, and then you know, from 15 reading the newspapers and watching the news, the -- the 16 controversy surrounding Dr. Smith began to become public 17 and -- and evident, and so it -- this thing -- this case 18 never went away. 19 MR. MARK SANDLER: Okay. The other thing 20 I wanted to ask you about is that -- the last line in the 21 overview report, and we actually do have the -- the 22 statement analysis report itself, which makes interesting, 23 and some might say controversial, reading. 24 But the last line says: 25 "A mechanism of asphyxia is suggested."

1 Can you help me out? I mean, what do you 2 do with that? How -- how does statement analysis go from 3 the point of saying that -- that the use of passive 4 language or -- or other indications in the statement may 5 show some involvement on the part of -- of the -- of the 6 speaker, to saying that a mechanism of asphyxia is 7 suggested? 8 MR. ROBERT KEETCH: Yeah, I -- I can't 9 give you an opinion, or my opinion where that conclusion 10 comes from. 11 MR. MARK SANDLER: Okay. 12 MR. ROBERT KEETCH: In all honesty, I 13 don't know. 14 MR. MARK SANDLER: All right. Let's move 15 to the next paragraph, paragraph 62 if we may. And -- and 16 here we see that -- that you and Sergeant West conducted a 17 -- another interview with Ms. XXXX on June the 19th of 18 1997, at which time she provided an exculpatory statement. 19 And -- and does that accord with your 20 recollection? 21 MR. ROBERT KEETCH: Yes, sir. 22 MR. MARK SANDLER: And the overview report 23 reflects that: 24 "During the interview, Sergeant West 25 told Ms. XXXX that there was no doubt in

1 the pathologist's mind, that Nicholas 2 did not die of natural causes." 3 Now stopping there for a moment, -- well, 4 sorry, I'll -- I'll read on a little bit more: 5 "Sergeant West said that the injuries 6 are such that the most probable cause of 7 his death was asphyxiation. Later in 8 the interview, Sergeant West said, The 9 only explanation here is a very 10 traumatic blow to the head; that is far 11 more than a sewing machine can cause." 12 Now did that accurately represent what you 13 were being told by Dr. Smith during that period of time? 14 MR. ROBERT KEETCH: Yeah. That period of 15 time, there were basically -- we had two (2) potential 16 scenarios, an asphyxial death, and/or a -- a blow to the 17 head. 18 There was a decision made going into that 19 interview. We had to focus on one and/or the other 20 initially. And the initial focus was on asphyxiation, and 21 that -- that was an investigative decision based on the 22 fact that there was no visible injuries observed by 23 police, by the coroner, and during the first autopsy, 24 indicative of a head injury. 25 So we kind of focussed the initial -- or

1 that interview and/or interrogation of Lianne, initially 2 on an asphyxial death, and then that subsequently, when 3 unsuccessful, changed to a -- the potential of a traumatic 4 blow to Nicholas' head. 5 MR. MARK SANDLER: Okay. 6 COMMISSIONER STEPHEN GOUDGE: What was the 7 view that the two (2) of you held, Sergeant West and 8 yourself, that -- at that point, of Dr. Smith's view of 9 the most likely mechanism? 10 MR. ROBERT KEETCH: I believe in Dr. 11 Smith's report, he'd given us both potential causes and 12 had not prioritized one above the other. And, as I said, 13 for the reasons that I illustrated, you know, no evidence 14 observed on the child, no evidence observed during the 15 autopsy indicative of a head injury, we, kind of, 16 educated -- 17 COMMISSIONER STEPHEN GOUDGE: And your own 18 sense of the Xs to the pillars supporting the head injury 19 thesis. 20 MR. ROBERT KEETCH: Yes. 21 MR. MARK SANDLER: Okay. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: Now moving ahead if we 25 may to paragraph 67, which is at page 22.

1 We know that shortly after that interview 2 of Ms. XXXX, on June the 26th of 1997, Dr. Smith did 3 conduct the second autopsy of Nicholas and as I understand 4 it, you were present during that autopsy? 5 MR. ROBERT KEETCH: That's correct. 6 MR. MARK SANDLER: And do you recall what 7 dialogue took place, if any, during the autopsy about 8 cause of death with Dr. Smith in your presence? 9 MR. ROBERT KEETCH: I -- I -- there was -- 10 the initial process of the autopsy was to do full skeletal 11 x-rays again. Those were taken over to -- the results of 12 those -- or those -- I guess the films of those x-rays 13 were taken over to Dr. Babyn. 14 I remember a phone call back to forensic 15 pathology relative to the examination of those x-rays and 16 the fact that there were no visible fractures present and 17 then the autopsy commenced. 18 The only specific thing I can recall 19 relative to potential cause was again the discussion of 20 the splitting skull sutures present on the -- on Nicholas' 21 head. And, you know, I can recall -- vividly recall 22 looking at the skull and there was an area across the top 23 that was, you know, a deep -- almost a deep red or purple 24 colour, and to me that was kind of -- in my mind was, you 25 know, kind of an indication or what Dr. Smith was

100

1 referring to. But, you know, the discussions that I'm -- 2 you know, I can recall surrounded that. 3 MR. MARK SANDLER: Okay. And then if 4 you'd go to page 24 of the overview report, we actually 5 see Dr. Smith later produced a report of post-mortem 6 examination. And the report itself is dated August the 7 6th of 1997. 8 As I understand it, the Sudbury Police did 9 not receive the report until sometime after that. Am I 10 right? 11 MR. ROBERT KEETCH: That's correct. 12 MR. MARK SANDLER: And what, if any, 13 involvement did you have in obtaining the written report 14 from Dr. Smith? 15 MR. ROBERT KEETCH: There were numerous 16 telephone calls back and forth to Dr. Smith and the Chief 17 Coroner's Office attempting to obtain a copy of the final 18 autopsy report. 19 MR. MARK SANDLER: Okay. And then we see 20 in his final autopsy report which was provided to -- to 21 the police, according to the overview report on October 22 30th of 1997 -- and I have to say when I read your notes 23 it's not clear to me whether it was received on October 24 30th or early in November, but I'm not sure anything turns 25 on it so -- so I won't take you there.

101

1 But in any event, his final opinion on the 2 cause of death is listed as cerebral edema consistent with 3 blunt force injury. 4 And in the report, we do see that -- that 5 there's no evidence of a mandibular fracture, he says 6 that. And then the summary of abnormal findings are set 7 out at the bottom of page 25 and we see: 8 "Exhumation and second post-mortem 9 examination with no evidence of fracture 10 of bone, hemorrhagic discolouration of 11 right parietal bone, hemorrhagic 12 discolouration along the skull sutures. 13 And in his notable facts, Dr. Smith says: 14 "The exhumation was undertaken in light 15 of the findings at the initial post- 16 mortem examination which revealed 17 cerebral edema as evidenced by brain 18 weight, split skull sutures and 19 increased head circumference. These 20 findings could not be explained by the 21 history available at that time. 22 Repeat microscopic examination of the 23 nervous system suggested that there may 24 also been an acute hypoxic ischemic 25 injury.

102

1 The second post-mortem examination 2 revealed no fracture of bone, although 3 the presence of soft tissue injury could 4 not be excluded. Hemorrhagic 5 discolouration was seen along the skull 6 sutures in keeping with the initial 7 radiograph -- radiographic observation 8 of split sutures. A separate area of 9 hemorrhagic discolouration was found on 10 the right parietal bone. Both the 11 cerebral edema and the parietal 12 discolouration were consistent with 13 blunt force injury, apart from hypoxic 14 ischemic changes, which are also 15 enigmatic, no other pathology was found 16 at either the review of the first or 17 second autopsy. In the absence of a 18 credible explanation, in my opinion, the 19 post-mortem findings are regarded as 20 resulting from non-accidental injury." 21 And were the findings of Dr. Smith 22 communicated to the police at some point subsequent to the 23 receipt of the report? 24 MR. ROBERT KEETCH: Yes, they were. 25 MR. MARK SANDLER: All right, we actually

103

1 see at paragraph 77, that on August the 7th of 1997 Dr. 2 Smith met with Dr. Cairns, Dr. Uzans, Dr. Deacon, and 3 Assistant Crown Attorney and police officers, including 4 you, and does that accord with your recollection? 5 MR. ROBERT KEETCH: That's correct. 6 MR. MARK SANDLER: And it reflects that 7 Dr. Cairns summarized this matter in his memorandum as 8 reflecting Dr. Smith advising you that Nicholas did not 9 die of SIDS or a natural process, he died from cerebral 10 edema consistent with a blunt force injury to the head. 11 Dr. Smith further stated that Ms. XXXX's 12 story that the child died after hitting his head on the 13 underside of a sewing machine was not consistent with the 14 medical evidence, and does that accord with your 15 understanding of Dr. Smith's findings? 16 MR. ROBERT KEETCH: That's correct. 17 MR. MARK SANDLER: All right. Now, if we 18 might move from there, Commissioner, this would be a 19 convenient time for the morning break. 20 COMMISSIONER STEPHEN GOUDGE: All right, 21 we'll be back shortly after 11:30. 22 23 --- Upon recessing at 11:16 a.m. 24 --- Upon resuming at 11:35 a.m. 25

104

1 THE REGISTRAR: All rise. Please be 2 seated. 3 COMMISSIONER STEPHEN GOUDGE: Mr. 4 Sandler...? 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Thank you, 8 Commissioner. Inspector, just before the break we had 9 looked, very briefly, at Dr. Smith's report of post-mortem 10 examination that followed the exhumation; his report dated 11 August the 6th of 1997, which was the subject of a verbal 12 report on August the 7th of 1997, before you received it 13 in writing later in the piece. 14 Do you remember we had that discussion 15 before the break? 16 MR. ROBERT KEETCH: That's correct. 17 MR. MARK SANDLER: And when we just look 18 at his report of post-mortem examination briefly, and I'm 19 looking at page 26 of the overview report again, we see 20 several items that I simply want to ask you about, and 21 that is that in 1.2) he reflects hemorrhagic 22 discolouration of right parietal bone and 1.3) hemorrhagic 23 discolouration along the skull sutures. 24 And we've heard evidence from forensic 25 pathologists at this Inquiry that the her -- hemorrhagic

105

1 discolouration of the right parietal bone and the 2 hemorrhagic discolouration along the skull sutures either 3 may be or is likely to be artifactual; in other words, not 4 representative of pre-mortem pathology, but instead, post- 5 mortem pathology. 6 Was there ever any discussion by Dr. Smith, 7 in his various meetings with you, as to that possibility? 8 MR. ROBERT KEETCH: No, sir, I do not 9 recall those discussions taking place. 10 MR. MARK SANDLER: Okay. And there's also 11 reference in paragraph 76 where Dr. Smith says: 12 "The exhumation was undertaken in light 13 of the findings at initial post-mortem 14 examination which revealed cerebral 15 edema as evidence by brain weight, split 16 skull sutures, and increased head 17 circumference. These findings could not 18 be explained by the history available at 19 that time." 20 Was there ever any discussion by Dr. Smith 21 about the fact that -- that those findings should be 22 modified insofar as they relate to brain weight or 23 increased head circumference as a result of the additional 24 information that the police had brought forward and 25 provided to him?

106

1 MR. ROBERT KEETCH: No, sir. 2 MR. MARK SANDLER: And then we see in the 3 second paragraph: 4 "This second post-mortem examination 5 revealed no fracture of bone, although 6 the presence of soft tissue issue could 7 not -- soft tissue injury could not be 8 excluded." 9 And again, there's reference to the: 10 "hemorrhagic discolouration seen along 11 the skull sutures in keeping with the 12 initial radiographic observation of 13 split sutures. A separate area of 14 hemorrhagic discolouration was found on 15 the right parietal bone." 16 We've heard from forensic pathologists, 17 subsequently, that some of the findings that are reflected 18 here as being found for the first time by Dr. Smith, and 19 not by Dr. Chen, are unlikely, again, to be pre-mortem, 20 because they would have been readily observable by Dr. 21 Chen. 22 What I want to ask you is: Was there ever 23 any discussion or acknowledgement by Dr. Smith that -- 24 that his findings may not be pre-mortem as a result of the 25 fact that Dr. Chen had not made those findings at the

107

1 initial post-mortem? 2 MR. ROBERT KEETCH: No, sir. The only 3 thing that was said in relation -- there was some 4 discussion in relation to Dr. Chen's post-mortem and the 5 quality of it, and the fact that they weren't prepared to 6 rely on any information contained in that res -- report as 7 a result of their perceived post-mortem that Dr. Chen had 8 done on Nicholas. 9 MR. MARK SANDLER: Okay. One (1) of the 10 things you were told is that he had not followed the 11 protocol that existed for these kinds of cases? 12 MR. ROBERT KEETCH: That's correct. 13 MR. MARK SANDLER: And then -- and then 14 Dr. Smith has reflected: 15 "Both the cerebral edema and the 16 parietal discolouration were consistent 17 with blunt force injury. In the absence 18 of a creditable explanation, in my 19 opinion, the post-mortem findings are 20 regarded as resulting from non- 21 accidental injury." 22 Apart from all of the various points that 23 I've -- I've asked you about is -- as being raised in 24 forensic pathology evidence that we've heard, another 25 point that has been raised is that the existence of

108

1 cerebral edema alone may not point to traumatic injury or 2 blunt force injury or even asphyxia but may simply be 3 indicative -- maybe non-specific. 4 Was there every any discussion about the 5 limitations that could be placed upon the finding of 6 cerebral edema? 7 MR. ROBERT KEETCH: I believe that was one 8 (1) of the issues that was contained within the twenty 9 (20) questions. Maybe not specific -- in the same 10 specifics that you phrased it -- 11 MR. MARK SANDLER: Right. 12 MR. ROBERT KEETCH: -- but I thought going 13 from memory, that cerebral edema was one (1) of the areas 14 that I questioned on -- him on relative to that meeting on 15 the 7th of May, and it was indicated during the -- listed 16 during the twenty (20) questions that I asked of him that 17 particular date. 18 MR. MARK SANDLER: And do you remember 19 whether he ever articulated the view that cerebral edema 20 may be non-specific; in other words, may not point to -- 21 to the kinds of cause of death that -- that have been 22 indicated in some of the language in his report? 23 MR. ROBERT KEETCH: No, I don't recall 24 that discussion. 25 MR. MARK SANDLER: Okay. Now if we can

109

1 move from the report of post-mortem examination to a 2 meeting, which I understood took place on November the 3 28th of that same year. 4 Do you recall attending a meeting on 5 November the 28th? If -- I'll help you out -- 6 MR. ROBERT KEETCH: Yeah, please. 7 MR. MARK SANDLER: There was a meeting 8 that subsequently took place at which the Crown attorney, 9 Mr. Rogers, now Mr. Justice Rogers attended, am I right? 10 MR. ROBERT KEETCH: The final case 11 conference relative to this -- this investigation? 12 MR. MARK SANDLER: Right. 13 MR. ROBERT KEETCH: Yes. 14 MR. MARK SANDLER: And we've seen from 15 other documentation that it would appear that that meeting 16 took place on November the 28th of 1997, all right? 17 MR. ROBERT KEETCH: Okay. 18 MR. MARK SANDLER: And perhaps I can 19 assist you. If you'd look at Tab 47, just to make sure 20 that -- that you're comfortable with -- with the 21 chronology as I've suggested it to you. 22 This is an inter-office correspondence 23 PFP302582 from you to Chief McCaully (phonetic), dated 24 April 1999, and the first paragraph reflects that: 25 "On the 28th of November 1997, a meeting

110

1 was held concerning the death of 2 Nicholas, which was attended by 3 yourself, Deputy Chief Cunningham, 4 Superintendent Kingsley, Inspector 5 Grisdale, Sergeant West, Assistant Crown 6 Attorney Greg Rodgers, and myself. At 7 the conclusion of the meeting, a 8 conclusion was reached by all parties 9 that there was insufficient evidence to 10 proceed with criminal charges against 11 Lianne XXXX concerning the death of her 12 son, Nicholas. 13 It was agreed that there was an 14 obligation under the Child and Family 15 Services Act for the Sudbury Regional 16 Police Service to notify Children's Aid 17 Society and provide them with full 18 disclosure of the circumstances 19 surrounding the death of Nicholas. 20 Early disclosure of this information 21 became apparent when it was learned that 22 Lianne was pregnant and expecting 23 another child. 24 With the benefit of this document, does 25 that assist in refreshing your memory as to the date of

111

1 that final case conference? 2 MR. ROBERT KEETCH: Yes, I believe Dr. 3 Cairns and Dr. Smith were present as well for that case 4 conference, were they not? 5 MR. MARK SANDLER: All right. I believe 6 you're right. 7 And what, as you recall it, transpired at 8 that case conference? 9 MR. ROBERT KEETCH: Dr. Smith presented 10 his report and then there were a series of questions in 11 relation to the report. 12 I mean, a lot of the discussion focussed on 13 his conclusion at that point in time. 14 And the conclusion, basically, in the 15 absence of a credible explanation -- and there was 16 considerable discussion with Dr. Smith in relation to that 17 as it would seem to provide a reasonable doubt relative to 18 the conclusion that he had come to that Nicholas died as a 19 result of blunt force head injury and the obstacles that 20 would be associated with that if there was ever a decision 21 to proceed with charges. 22 And I specifically remember having -- 23 questioning Dr. Smith in relation to that and asking him 24 if that was a standard clause that he had written in -- or 25 was writing in to his post-mortem reports because I had --

112

1 you know, the way our Judicial System works is we prove 2 beyond a reasonable doubt. 3 There's no reverse onus on an individual, 4 that they have to provide a credible explanation. And 5 there was some indication that he had written that in 6 previous reports. 7 But, I mean, everybody sitting around the 8 table recognized what that was saying and what was imply - 9 - or the implications that would have relative to 10 Nicholas' death investigation, and that was the fact that 11 the matter would not go forward with criminal charges 12 based on that -- that caveat that was proceeding his cause 13 of death. 14 MR. MARK SANDLER: All right. 15 COMMISSIONER STEPHEN GOUDGE: Did Dr. 16 Smith understand that as far as you could see from the 17 meeting? 18 MR. ROBERT KEETCH: Yes. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: All right. And then 22 when we see -- when we actually see that memorandum that I 23 showed you, it would appear that you reflected: 24 "A conclusion was reached by all parties 25 that there was insufficient evidence to

113

1 proceed with criminal charges." 2 Was that an opinion that was shared by Dr. 3 Smith, regardless of what opinion he had formed about the 4 cause of death in this case? 5 MR. ROBERT KEETCH: I think as a result of 6 the -- the ongoing discussions during that meeting and the 7 fact it was, you know, Assistant Crown attorney Rogers was 8 present, he was made aware of, you know, the implications 9 and the fact that with that final determination that we 10 would not be proceeding forward with criminal charges. 11 MR. MARK SANDLER: All right. Let me ask 12 you a question that may be difficult for you to answer and 13 that's this: 14 That -- assume that you don't know any of 15 the qualifications or limitations upon the opinion that 16 was expressed by Dr. Smith that I've outlined for you from 17 subsequent forensic pathologists, all right? And you 18 actually had occasion subsequently to read some of the 19 affidavits from Dr. Halliday and Dr. Case that were 20 presented in the child -- Children's Aid proceedings? 21 MR. ROBERT KEETCH: That's correct. 22 MR. MARK SANDLER: All right, let's assume 23 you don't know any of that. And let's assume that Dr. 24 Smith's opinion -- report would have read identically to 25 the report as it does read with the exception that the

114

1 words "absent a credible explanation" had not been 2 contained therein, do you think the charge would have 3 proceeded? 4 MR. ROBERT KEETCH: I would have 5 anticipated laying criminal charges, yes, sir. 6 MR. MARK SANDLER: Okay. So very -- it 7 very much spun on the wording that was used in the 8 ultimate opinion expressed by Dr. Smith? 9 MR. ROBERT KEETCH: Yes. 10 MR. MARK SANDLER: Okay. 11 COMMISSIONER STEPHEN GOUDGE: At the 12 meeting, Inspector, did you form a view that the use of 13 that clause, as you put it, reflected Dr. Smith's lack of 14 certainty in his assertion of cause of death? 15 MR. ROBERT KEETCH: No, I would -- I would 16 say no. 17 I mean, I can speak for my own behalf and I 18 think I can speak for a number of the individuals sitting 19 around that table. At that point in time, based on the 20 information that was being provided to us by Dr. Smith and 21 the discussions that we had take -- had taken place, we 22 were of the belief that Lianne was responsible for 23 Nicholas' death. 24 We recognized that that statement precluded 25 any criminal charges going forward but I think the belief

115

1 or common belief surrounding that table was that Lianne 2 was directly responsible for Nicholas' death. 3 COMMISSIONER STEPHEN GOUDGE: Yes, I guess 4 what I am getting at, Inspector, is one (1) of the things 5 we have grappled with in the evidence we have heard is 6 that -- is the degree of certainty pathologists use in 7 articulating their opinions about the cause of death, and 8 you, quite properly, focus on that phrase in the absence 9 of credible explanation as making it difficult for you to 10 go forward with a criminal charge. 11 But I, sort of, infer from that a sense 12 that the Criminal Justice process would use that phrase as 13 an entry to try to render, less than fully certain, Dr. 14 Smith's opinion about the cause of death. 15 Is that, sort of, in lay terms, the concern 16 that was expressed about the use of the phrase? 17 MR. ROBERT KEETCH: I think the phrase 18 created a reasonable doubt in itself. 19 COMMISSIONER STEPHEN GOUDGE: About what 20 the cause of death was? 21 MR. ROBERT KEETCH: Yes. 22 COMMISSIONER STEPHEN GOUDGE: Was that a 23 reasonable doubt, and let me use that in the vernacular 24 rather than the way the Criminal Justice System uses the 25 phrase, but did that reflect, in your view, sitting around

116

1 the table with Dr. Smith, a doubt that he had in his head 2 about the cause of death? 3 MR. ROBERT KEETCH: No. No, sir. I think 4 he was -- he was of the opinion the cause of death was a 5 result of blunt force head -- head injury and -- and was 6 of the opinion Lianne was responsible for that. 7 COMMISSIONER STEPHEN GOUDGE: And so he 8 would have held the opinion or, at least, the perception 9 of those in the meeting with him was that he would have 10 held that opinion with a high degree of certainty, 11 although when it is articulated in the report, it is 12 articulated with a qualifier that suggests some lesser 13 certainty? 14 MR. ROBERT KEETCH: Yeah, and again, from 15 reviewing, you know, some of the documentation that I 16 wasn't privy to and some of the discussions that I wasn't 17 privy to relative to the CAS matter, but I mean he -- he 18 used the per -- a percentage there, 99 percent certain, 19 during that documentation. 20 Well, that -- that 99 percent was never 21 communicated to us during our discussions. And I was 22 quite surprised to see that, and, you know, interested in 23 it. But I mean it was -- 24 COMMISSIONER STEPHEN GOUDGE: It seemed 25 sort of inconsistent with the use of the clause that

117

1 caused you difficulty? 2 MR. ROBERT KEETCH: Yes. 3 COMMISSIONER STEPHEN GOUDGE: But if you 4 would have said to yourself at the end of the meeting with 5 Dr. Smith, what degree of certainty does he hold that 6 conclusion with, that is blunt force trauma, you probably 7 would have said pretty close to a 100 percent certainty 8 even thought he is using the phrase? 9 MR. ROBERT KEETCH: Yeah, the belief was 10 it was quite high. And I mean, it was suppo -- you know, 11 he wasn't the only one sitting around the table of that 12 belief. There were others that -- 13 COMMISSIONER STEPHEN GOUDGE: Yes, I am 14 sure that is right. 15 MR. ROBERT KEETCH: -- maintained that 16 belief as well. 17 COMMISSIONER STEPHEN GOUDGE: How do you 18 explain his use of the phrase if it was not accurately 19 reflecting a doubt in his head about the cause of death? 20 MR. ROBERT KEETCH: Honestly, I can't say 21 why he would put it. You know, I might give an opinion 22 why he would -- 23 COMMISSIONER STEPHEN GOUDGE: Well, if you 24 cannot say, you cannot say. 25 MR. ROBERT KEETCH: -- put on --

118

1 COMMISSIONER STEPHEN GOUDGE: No, no. I 2 do not ask you to -- I just wondered if you formed any 3 view because clearly you, and I think you said you feel 4 comfortable speaking for others, formed the view that he 5 was really certain about the cause of death at that 6 meeting, and yet the qualifier, which you say is the 7 caution that prevents you from proceeding with the 8 criminal charge suggests there is a significant doubt in 9 his head about the cause of death? 10 MR. ROBERT KEETCH: A significant doubt or 11 an escape clause. I don't know how you would -- 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 MR. ROBERT KEETCH: -- you know, you -- 14 COMMISSIONER STEPHEN GOUDGE: Yes, I am 15 just pointing -- I am just sort of focussing on the 16 inconsistency with -- 17 MR. ROBERT KEETCH: Yeah. 18 COMMISSIONER STEPHEN GOUDGE: -- with the 19 certainty that he was articulating at the meeting and the 20 phrasing of the report. 21 MR. ROBERT KEETCH: Yeah. And -- and I 22 mean, I can say, when you sit around the table and he 23 discusses these things with you, he -- you know, he 24 articulates well. And, you know, I can probably say that 25 we're sitting around a table believing what he's telling

119

1 us, and again, coming to the conclusion that Lianne's 2 responsible for Nicholas' death. 3 COMMISSIONER STEPHEN GOUDGE: Yes. I 4 mean, it is just a -- it is a pretty graphic example for 5 us, Inspector, the importance of the choice of language in 6 a post-mortem report; importance for the Criminal Justice 7 System not just for the Medical System. 8 MR. ROBERT KEETCH: I would agree. I -- I 9 was really surprised when he provi -- you know, when I 10 asked him if that was a standardized clause of -- who 11 would put in a report, and to get the answer yes, that 12 kind of surprised me because, you know, if we were facing 13 that obstacle than how many other -- and, you know, I 14 wasn't aware of that -- but potentially were there other 15 people -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. ROBERT KEETCH: -- that were put in 18 the same position -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MR. ROBERT KEETCH: -- where that clause 21 was there within the report. I -- I was kind of -- you 22 know, I just really didn't understand that -- 23 COMMISSIONER STEPHEN GOUDGE: You were 24 puzzled? 25 MR. ROBERT KEETCH: -- the wording. Yeah.

120

1 COMMISSIONER STEPHEN GOUDGE: Yes. 2 Thanks. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: And -- and just for the 6 -- for the record, you've made some reference to some 7 other material that you subsequently read. If you look at 8 the overview report back at Tab 1, 143263. We actually 9 see, at page 30, that at paragraph 84 in December, the 10 Sudbury Police reported the suspicions of abuse to 11 Children's Aid Society; the police telling Children's Aid 12 that Ms. XXXX was expecting another child. 13 And stopping there for a moment. I know 14 that you subsequently had some dialogue with Mr. XXXX 15 about this, but why did the Sudbury Police feel that it 16 had to report the matter to the CAS, notwithstanding the 17 determination that there was no reasonable prospect of 18 conviction in the criminal proceedings? 19 MR. ROBERT KEETCH: That was one (1) of 20 the decisions that was made in that November meeting in 21 consultation with the various people sitting around the 22 table that there was an onus on us to notify Children's 23 Aid. She was tending school. 24 I believe she had intentions of potentially 25 becoming a teacher, and -- and we recognized the -- the

121

1 obligation to notify them, which we did following that 2 meeting in November. And then subsequently, we learned of 3 her expecting a second child. 4 And as I -- I said, there were numerous 5 members of the police service that were -- including 6 myself were -- at this point in time were still of the 7 opinion that she was responsible for Nicholas' death. 8 And, you know, there was a concern, 9 relative to the -- the safety of that future unborn child, 10 so the decision was made to notify. 11 MR. MARK SANDLER: All right. And -- and 12 perhaps just to -- just to make clear because we're going 13 back a long time, but I've actually reviewed your notes in 14 some detail, and it would appear that Mr. XXXX advised you 15 that she was pregnant before the meeting took place on 16 November the 28th. 17 If -- if one actually looks at your notes 18 at Tab 10, page 54. 19 MR. ROBERT KEETCH: You see there's some - 20 - I beli -- 21 MR. MARK SANDLER: Well, I just asked 22 about this -- 23 MR. ROBERT KEETCH: -- it's something I've 24 been struggling with in my mind, trying to -- I mean, I'm 25 trying to remember back twelve (12) years, --

122

1 MR. MARK SANDLER: Right. 2 MR. ROBERT KEETCH: -- and I apologize for 3 that, but I believe -- 4 MR. MARK SANDLER: No, no, that's fine. 5 MR. ROBERT KEETCH: -- that she got -- was 6 not pregnant at the time of that meeting. And I could 7 stand to be corrected, but I think it was -- we learned 8 later on in the following year that she had become 9 pregnant, -- 10 MR. MARK SANDLER: All right. 11 MR. ROBERT KEETCH: -- and we did the 12 notification. 13 MR. MARK SANDLER: I just thought, in 14 fairness, I should point this out to you that -- that at 15 page 53, these are your entries for October the 30th of 16 1997. 17 MR. ROBERT KEETCH: Okay. 18 MR. MARK SANDLER: And -- 19 MR. ROBERT KEETCH: Can you give me the 20 tab for my notes again? 21 MR. MARK SANDLER: Yes, it's Tab 10. 22 MR. ROBERT KEETCH: And page...? 23 MR. MARK SANDLER: And you'll see page 53, 24 near the bottom of the page, we see an entry for Thursday, 25 October 30th of 1997, if you have that?

123

1 MR. ROBERT KEETCH: 30th of October, '97, 2 yes. 3 COMMISSIONER STEPHEN GOUDGE: It is last 4 entry. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: And then if you go -- 8 if you go to the next page, page 54, it says at the end of 9 that very long entry: 10 "Mo (phonetic) advised that Lianne is 11 now pregnant." 12 MR. ROBERT KEETCH: Yeah, I stand to be 13 corrected. 14 MR. MARK SANDLER: Okay. I didn't ask you 15 that to embarrass you just to make sure that the record's 16 clear. 17 MR. ROBERT KEETCH: No, no, I -- as I 18 said, during my initial interview by the counsel, it's 19 hard -- you know, it's hard to remember twelve (12) years 20 back. I apologize. 21 MR. MARK SANDLER: Fair enough. 22 MR. ROBERT KEETCH: I'm getting older and 23 maybe my memory's failing, but now that you bring that up, 24 I do remember having discussions with Maurice relative to 25 Lianne getting pregnant while all of this was unfolding,

124

1 and he was not happy. 2 MR. MARK SANDLER: Okay. And then -- but 3 I -- I take it with the benefit of that information that - 4 - that one (1) of the reasons why this matter was reported 5 to Children's Aid was, notwithstanding the absence of 6 reasonably prospect of conviction in the criminal 7 proceedings, there are statutory obligations on the police 8 in connection with -- with abuse and the duty to report? 9 MR. ROBERT KEETCH: That's correct. 10 MR. MARK SANDLER: And -- and that -- and 11 that don't have to fulfill criminal law standards? 12 MR. ROBERT KEETCH: That's correct. 13 MR. MARK SANDLER: And if you look again - 14 - so we're back at the overview report at page 30. We 15 actually see that -- that the Children Aid's Society held 16 case conferences on April the 7th of 1998 -- and I'm at 17 paragraph 86 here -- and May the 8th of 1998 to discuss 18 how to proceed. 19 And it appears that you were present for 20 the first case conference that is described there, is that 21 right? 22 MR. ROBERT KEETCH: I bel -- yes. 23 MR. MARK SANDLER: And one (1) of the 24 participants notes reflect that at that meeting that was 25 attended by Dr. Cairns as well:

125

1 "Dr. Cairns told the CAS that Nicholas 2 did not die of SIDS but died of a 3 cerebral edema. The autopsy performed 4 by Dr. Chen was flawed." 5 And he made some comments about the 6 herniation of a brain stem. And then we see at the May 7 8th, 1998 meeting: 8 9 "Dr. Smith and Dr. Cairns attended and 10 they were unequivocal that Dr. Smith's 11 diagnosis of Nicholas' death was 12 correct. It was indicated by Dr. 13 Smith, which was not questioned by Dr. 14 Cairns who was present at the time, 15 that he was 99 percent certain that 16 this child had died due to a non- 17 accidental trauma that had been 18 inflicted on the child by the sole 19 caregiver, being the mother, who had 20 the opportunity to do so during the 21 time frame for this type of injury." 22 And I take it that was one (1) of the 23 references that you were referring to when you told the 24 Commissioner that you have seen other material that 25 tended to support the fact that the opinions expressed by

126

1 Dr. Smith and Dr. Cairns were at a high level of 2 certainty. 3 MR. ROBERT KEETCH: That's correct. 4 MR. MARK SANDLER: And we see -- we see 5 another reference in -- in -- to language that is also 6 assertive at page 38 of the overview report where Dr. 7 Smith swore a fifteen (15) page affidavit in the CAS 8 proceedings, and it reflects at paragraph 107: 9 "I am of the opinion at a high level of 10 certainty that the death of Nicholas on 11 November 30th, 1995 was due to non- 12 accidental injury. I cannot be 13 absolutely certain as to the cause of 14 the injury. My opinion is that the 15 injury was due to a blunt impact to the 16 head, although it's possible that it 17 was caused by asphyxia." 18 And again, leaving aside the phraseology 19 that was used in the -- in his report and in his meeting, 20 that accords, as I understand it, with where you thought 21 he was at in the -- in the spectrum of -- of certainty, 22 is that right? 23 MR. ROBERT KEETCH: That's correct. 24 MR. MARK SANDLER: Now, I want to ask you 25 one (1) more thing about the November -- or one (1) or

127

1 two (2) more things about the November 28th, 1997 2 meeting. 3 Your Chief and Deputy Chiefs of Police 4 were present at the meeting, as well, is that right? 5 MR. ROBERT KEETCH: Yes, sir. 6 MR. MARK SANDLER: And what was their 7 perspective on it? Where were they at emotionally, and 8 factually, and the like on -- on this case? 9 MR. ROBERT KEETCH: Both of those 10 individuals had a relationship with the XXXX family; not 11 Lianne so much as Maurice and his wife. The Deputy and 12 the Chief's wife had actually worked with, I believe it's 13 Angela, the -- the -- Lianne's mother, so they had a -- 14 they were familiar with Nicholas. 15 They had a relationship with that family, 16 and the Chief was -- during that November meeting was 17 very upset; that he was one (1) of the individuals that 18 was of the opinion that Lianne was responsible for 19 Nicholas' death and was quite emotional that she was 20 going to get away with being responsible for that death. 21 MR. MARK SANDLER: All right. And 22 despite the emotion that was being articulated by your 23 Chief, no charge was laid, of course. 24 MR. ROBERT KEETCH: Yes, sir. 25 MR. MARK SANDLER: So the question I have

128

1 for you is, did you feel pressure from -- from your 2 police force, and second of all, did you succumb to the 3 pressure? 4 MR. ROBERT KEETCH: I mean, there was -- 5 I was aware of that relationship very early in the 6 investigation, right from the 30th of November, when I 7 responded to this sudden death call, so you -- you know 8 that you're under the microscope. 9 I mean, when they're aware or have an 10 intimate knowledge of the family, everything you've gone 11 -- you do in re -- relation to that investigation is 12 going to be reviewed. 13 Did I feel pressure, I mean not -- 14 obviously, yes. I mean the presence of Assistant Crown 15 Attorney Rogers there, kind of, has, you know, what I 16 would kind of describe as a voice of reason and providing 17 an abet -- objective opinion relative to the reasonable 18 expectation of a con -- conviction kind of took some of 19 the pressure off of me, but, you know. 20 And I don't know that it was direct 21 pressure being placed on me by the Chief. I think it was 22 frustration in the entire -- with the entire -- not -- 23 not so much the investigation, but, as I said, belief 24 that at this point in time, that Lianne was responsible 25 for Nicholas' death and that there were not going to be

129

1 charges laid in relation to that. 2 And -- and the final aspect you asked me, 3 did I succumb to the pressure, no, there was no criminal 4 charge laid in relation to this investigation. And I 5 think he shared our opinion at that meeting of, you know, 6 the likelihood of a conviction being rendered at this 7 point in time relative to Nicholas' death based on the 8 information that we had from the investigation. 9 MR. MARK SANDLER: So to ask you the 10 obvious. The presence of an Assistant Crown Attorney who 11 had reviewed the brief in detail and was prepared to 12 weigh in in an objective way figured prominently in 13 assisting and resolving the matter. 14 Is that right? 15 MR. ROBERT KEETCH: That's correct. 16 MR. MARK SANDLER: Okay. Now you later 17 had occasion I know to apologize to Maurice XXXX. And -- 18 and could you explain to the Commissioner, because I 19 gather that it -- that it was very well received and 20 appreciated on the part of Mr. XXXX, what had prompted 21 you to -- to make that call or to speak to him in that 22 way? 23 MR. ROBERT KEETCH: There was ongoing 24 correspondence between Maurice XXXX and myself relative 25 to the investigation right from, you know, right

130

1 throughout it, and it was -- I can't give you the exact 2 date, but it was the Christmas prior to my being 3 transferred back to uniform. 4 And I'd been reading a lot of the 5 correspondence in the news relative to Dr. Smith and had, 6 kind of, come to a realization in my own mind that Lianne 7 wasn't responsible for Nicholas' death or there was no -- 8 you know, nothing to medically support that belief. 9 And, you know, I kind of harboured a lot 10 of guilt in relation to what I had done, I guess, on 11 behalf of the police service to that family, in relation 12 to the investigation. The fact that we had, you know, 13 done a disinterment, done a second autopsy, done an 14 interrogation of -- of Lianne. 15 And, you know, kind of, throughout that 16 time frame, until Dr. Smith's opinions and reputation 17 began to crumble, kind of, maintained that belief that 18 Lianne was responsible for Nicholas' death. 19 So when I, kind of, resolved in my mind 20 that there was no basis to form that opinion, I called 21 Maurice. And he had always extended a willingness to sit 22 and discuss the case with me because I think he was, kind 23 of, equally interested, as interested as I was in, you 24 know, kind of, finding out what had happened to Nicholas 25 and why he had died on that particular day.

131

1 So this -- I'm -- kind of armed with that 2 information, I met Maurice and the two (2) of us, kind 3 of, sat and had coffee just before Christmas at a local 4 Tim Hortons and, you know, kind of spent a couple of 5 hours going over the investigation; my apologizing. 6 And I mean, Maurice probably has one (1) 7 of the best understandings of Dr. Smith and, kind of, the 8 investigations that are subject to this Inquiry and he, 9 kind of, updated me in relation to that. So, you know, 10 it was, kind of, an opportunity for me to apologize for, 11 kind of, what I had put them through; my actions. 12 And, you know, it wasn't necessarily 13 condoned on behalf of the police service. I was never 14 asked to do this. I just made a decision individually 15 that I wanted to go and apologize for what the family had 16 been put through. 17 MR. MARK SANDLER: All right. I just 18 have a few miscellaneous questions for you, if I may, and 19 we'll go back to paragraph 120 of the overview report. 20 And -- and we see in this paragraph that 21 in an affidavit that Dr. Smith prepared for the 22 Children's Aid proceedings, he responded to a number of 23 the issues raised by Dr. Halliday in an earlier 24 affidavit. And I'm not going to take you through the 25 parry and thrusts of the various affidavits.

132

1 But one (1) of the points here was that 2 Dr. Smith responded to Dr. Halliday's observation: 3 "That it would have been ideal for a 4 trained neuropathologist to perform the 5 neuropathologic aspect of the autopsy." 6 And Dr. Smith stated: 7 "That Dr. Venita Jay, a pediatric 8 neuropathologist, reviewed the case and 9 did not issue a written report but 10 communicated her opinion to me 11 verbally. 12 During the Ombudsman's investigation, 13 Dr. Jay reportedly stated she may have 14 been involved in a peripheral 15 incidental way, she had no specific 16 recollection of the case." 17 And the College of Physicians and Surgeons 18 later stated that: 19 "In our view, the evidence does not 20 definitively show that Dr. Smith did 21 not consult Dr. Jay. We believe it's 22 more likely that a consult of a casual 23 nature occurred is not remembered by 24 Dr. Jay some years after the fact." 25 Now this has been commented on, in part,

133

1 in the context of the importance of documenting 2 consultations that do take place. But I want to ask you. 3 Were you aware of the allegation that Dr. 4 Smith had consulted with a pediatric neuropathology (sic) 5 back when you were conducting the -- the investigation? 6 MR. ROBERT KEETCH: No, sir. 7 MR. MARK SANDLER: Would you have liked 8 to know that if it had occurred? 9 MR. ROBERT KEETCH: Yes, sir. 10 MR. MARK SANDLER: All right. And then 11 if you'd go to paragraph 182. 12 13 (BRIEF PAUSE) 14 15 MR. MARK SANDLER: We actually see, 16 moving forward in time, that on November the 10th of 1999 17 the Fifth Estate aired a story regarding Nicholas' death. 18 The story included an interview with Dr. Cairns. And 19 just stopping there for a moment. You've made reference 20 to Dr. Cairns' attendance at -- at various time and your 21 interactions with him including his presence at at least 22 one (1), perhaps two (2) case conferences. 23 What did you see his position to be and 24 how did it impact upon Dr. Smith's opinion and the 25 credibility or lack thereof, of Dr. Smith's opinion?

134

1 MR. ROBERT KEETCH: He -- he was 2 supporting the opinions that Dr. Smith was providing to 3 us. I -- I think that not only was he doing it verbally, 4 but he was doing it in a written format as well. In all 5 -- in my mind, him -- you know, the Deputy Chief Coroner 6 of Ontario supporting the opinion of the -- the 7 pathologist tended to add weight to the opinion that the 8 pathologist was providing to you. So he -- 9 MR. MARK SANDLER: Okay. 10 MR. ROBERT KEETCH: -- tended to elevate. 11 You know, Dr. Smith kind of was on a pedestal when he 12 initially came forward, and I can remember having the 13 conversation with Maurice during the -- it was actually 14 the day that we had interviewed Lianne, interviewed/ 15 interrogation and, you know, we had had a discussion at 16 the police station that day and, you know, in our minds, 17 Dr. Smith was one (1) of the leading experts within the 18 world in relative to pediatric death investigations and - 19 - and pathology. 20 And I remember having that conversation 21 with him, saying, you know, one (1) of -- this leading 22 expert is telling us that your daughter's responsible for 23 Nicholas' death. And again, Dr. Cairns supporting Dr. 24 Smith tended to raise the -- the bar somewhat in relation 25 to the weight that you were giving that evidence and the

135

1 perceived expertise behind the evidence. 2 MR. MARK SANDLER: Okay. 3 COMMISSIONER STEPHEN GOUDGE: And did you 4 know whether or not Dr. Cairns had any pathology 5 expertise himself, Inspector, or was it really the office 6 he held that added the weight? 7 MR. ROBERT KEETCH: At the time, I 8 didn't. I mean, his office would add the weight 9 definitely. If he had had a pathology background as 10 well, and I would have been aware of that, that would 11 have added further weight, but I had no knowledge at that 12 point in time. 13 COMMISSIONER STEPHEN GOUDGE: But I take 14 it from your perspective whether he did or didn't have 15 pathology expertise, the office he held was what added 16 the weight that you perceived from his support? 17 MR. ROBERT KEETCH: Definitely. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: All right. And just 21 continuing on in paragraph 182, it says -- and we're in 22 November of '99: 23 "The Ministry of the Solicitor General 24 prepared a memo on its appropriate 25 response to the story in regard to the

136

1 role of the OCCO. The recommended 2 response included declining to comment 3 on the ongoing investigation by the 4 Sudbury Regional Police and the OCCO. 5 The memo also noted that an independent 6 expert opinion was sought by the OCCO 7 when there were conflicting expert 8 opinions, and that the OCCO developed a 9 memo on best practices in forensic 10 pathology, some of which addressed 11 issues arising in the XXXX case." 12 And to be clear, in -- in fairness, as of 13 November of 1999, was there any ongoing investigation by 14 the Sud -- Sudbury Regional Police? 15 MR. ROBERT KEETCH: The case was never 16 closed, but at that point in time, the investigation -- 17 you know, all aspects of the investigation had been 18 completed pending any further new information which would 19 have come forward. 20 MR. MARK SANDLER: Okay. Now, did you 21 ever have discussion once -- once information became to 22 be publically disseminated about Dr. Smith in other cases 23 in which he'd been involved. 24 Did you ever have any discussion with 25 other investigating officers either inside or outside of

137

1 your police force as to the use of Dr. Smith? 2 MR. ROBERT KEETCH: Yes, sir. 3 MR. MARK SANDLER: All right. Could you 4 tell us about that? 5 MR. ROBERT KEETCH: I remember having a 6 specific discussion with Detective Matt Crone (phonetic) 7 from -- who worked for Metro Toronto Police Service, and 8 it was -- I was thinking about it driving down trying to 9 date it. And I can tell you that it took place at a 10 homicide conference that was held in the Province at 11 Muskoka Sands in Gravenhurst. 12 And Detective Tony -- I believe it's Ware 13 or Warr (phonetic) from Toronto Police Service was doing 14 a presentation actually at that homicide seminar relative 15 to a pediatric death investigation that had involved Dr. 16 Smith. And I -- Detective Crone was present at that 17 seminar and was hosting it as Matt was on the Major Case 18 Management Committee with me, so I knew Matt very well 19 and actually was the -- designated the Serial Predator 20 Crime Unit Coordinator for the Province and was filling 21 that role so was somewhat involved in -- in the seminar. 22 And I, kind of, questioned him on the side 23 saying, You know, I'm still surprised that given all of 24 the issues surrounding Dr. Smith, that he's still being 25 utilized within the province for pediatric death

138

1 investigations. 2 And I was aware that -- you know, I've had 3 subsequent conversations with Matt Crone relative to that 4 because he had an ongoing criminal trial in a pediatric 5 death investigation where Dr. Smith was the pathologist 6 that was the expert relative to the cause of death and -- 7 MR. MARK SANDLER: This is Kporwodu, was 8 it? 9 MR. ROBERT KEETCH: I can't remember the 10 specifics of the -- like the specific name, but the -- 11 MR. MARK SANDLER: Okay. 12 MR. ROBERT KEETCH: -- XXXX investigation 13 became and -- somewhat involved -- had fringe involvement 14 in that trial process in relation to. I had to disclose 15 some of the infas -- the information from the 16 investigative file of XXXX to, I believe, defence counsel 17 for that trial. 18 So there was some discussions with 19 Detective Crone in relation to Dr. Smith at this point in 20 time, as well. 21 MR. MARK SANDLER: Okay. Now, the last 22 question that I want to ask you about has to do with 23 recommendations. Inspector, you have an opportunity now, 24 if you'd like, to provide any suggestions or 25 recommendations that you'd like the Commissioner to

139

1 consider in -- in making his final report. 2 MR. ROBERT KEETCH: Yeah, I have a series 3 of recommendations that I'd like to put before the 4 Commissioner. The first that, as we've have spoken to 5 earlier, specific training for police officers relative 6 to pediatric death investigation be undertaking and as -- 7 and a component of that training relate to the protocol 8 relative to the death investigations involving children 9 under the age of five (5). 10 That all SIDS and SUDS death 11 investigations be reviewed by the Paediatric Death Review 12 Committee in a timely manner, and -- and when I say 13 "reviewed by the committee", I'd like to see, as we 14 discussed earlier, that the entire committee be made 15 aware of the contents of the investigation, rather than 16 one (1) individual. 17 I'd like to see a verification process 18 instituted on autopsy findings by pediatric fen -- 19 forensic pathologist's opinion evidence. And I'm going 20 to add a caveat to that similar to the fingerprint 21 verification process that we do as police relative to 22 fingerprint identification and/or potential testimony, 23 and I -- 24 MR. MARK SANDLER: Could you explain what 25 you mean by that?

140

1 COMMISSIONER STEPHEN GOUDGE: Yes, 2 explain. I'd like you to explain that -- 3 MR. ROBERT KEETCH: As a forensic 4 identification officer, if I make an identification of a 5 fingerprint and I'm going to go to Court to testify to 6 that and provide opinion evidence, I have to have my 7 opinion verified by an independent equally qualified 8 fingerprint examiner. 9 And I would like to see that instituted 10 relative to the conclusions of the pathologist during 11 pediatric death investigations where it's anticipated 12 that criminal charges are going to be laid. 13 COMMISSIONER STEPHEN GOUDGE: We've 14 referred to that. I think what you're talking about is 15 peer review. 16 MR. ROBERT KEETCH: Yeah. 17 COMMISSIONER STEPHEN GOUDGE: Is that -- 18 MR. ROBERT KEETCH: That would be -- 19 COMMISSIONER STEPHEN GOUDGE: -- an apt 20 phrase? 21 MR. ROBERT KEETCH: Yeah. Timely autopsy 22 reports -- access to timely autopsy reports -- mandatory 23 case conference in all SIDS and SUDS death investigations 24 during the firsting -- first fourteen (14) days after the 25 investigation is concluded, and a second mandatory case

141

1 conference after -- within fourteen (14) days of the 2 final toxicology re -- result being provided. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: Just -- just to 6 clarify, because you may have misspoken or I may have 7 misunderstood, you reflected two (2) time periods, one 8 (1) was fourteen (14) days after, and you said the 9 conclusion of the investigation. 10 MR. ROBERT KEETCH: The investigative 11 component by police, we -- we tend -- in these type of 12 investigations, I'm going to suggest that the 13 investigation by the police service is going to conclude 14 prior to the toxic -- not conclude, but the actual 15 investigative component where we're actively interviewing 16 and -- and doing an investigation will be completed prior 17 to us getting the toxicology result. 18 And then based on that toxicology result, 19 there would be phone calls to the coroner and to the 20 pathologist for a cause and for a final cause of death 21 from the coroner. 22 But once we, as police agencies, are done, 23 the active investigation and waiting for toxicology 24 results, I'd like to see a case conference, a mandatory 25 or potentially mandatory or strongly recommended that we

142

1 hold a case conference as a police agency with the 2 various experts, be it the Regional Coroner, the 3 pathologist, and the investigating officer, IDENT officer 4 and then upon subsequently obtaining the final results of 5 the toxicology and the final results of the -- or 6 determination of cause and manner of death by the 7 pathologist and coroner. I'd like to see one (1) final 8 case conference to discuss it as well. 9 COMMISSIONER STEPHEN GOUDGE: Meshing 10 that timing, Inspector, with the timing that has been -- 11 we have been told about for the typical post-mortem 12 report, the first of your two (2) would happen after the 13 autopsy with the benefit of the preliminary conclusion of 14 the pathologist? 15 MR. ROBERT KEETCH: Yes. 16 COMMISSIONER STEPHEN GOUDGE: And the 17 second would happen after toxicology is returned to the 18 pathologist for the final post-mortem report? 19 MR. ROBERT KEETCH: Yeah, and -- and 20 hopefully, as I said earlier, timely autopsy reports. 21 I'd like to -- you know, I don't think it adds -- I don't 22 think it's acceptable to conduct an autopsy in -- the end 23 of the November and have to wait till August to get the 24 final -- final report -- 25 COMMISSIONER STEPHEN GOUDGE: Right,

143

1 right. 2 MR. ROBERT KEETCH: -- and the potential 3 ramifications that can have on the investigation. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. ROBERT KEETCH: Rec -- I would make a 6 recommendation that investigating officer be required to 7 attend the autopsy of the pediatric death, and we've had 8 discussion relative to my reasoning surrounding that. 9 I would recommend that SIDS and SUDS death 10 be included in the definition of major case -- within the 11 Major Case Management Manual and subjected to the same 12 investigative standards. 13 And that's, kind of, -- from the policing 14 aspect to -- to give you a thirty thousand (30,000) view 15 of the benefits of that. The -- being -- being defined a 16 major case and being subjected to the investigative 17 standards means you have to work within the software 18 associated with that. 19 There's two (2) components to the 20 software, a triggering database, which I think is -- 21 would be of very limited value to SIDS and SUDS death 22 investigations 'cause I don't think it's reasonable to 23 potentially expect that you're going to have multiple 24 SIDS and SUDS deaths with the same caregiver. 25 What I like from mandating that is you're

144

1 going to use the case management aspect of the software, 2 which is excellent in relation to, as a police agency, 3 managing the -- managing, documenting the investigation 4 of these types of deaths. 5 I think it's idul -- ideally sui -- suited 6 for these types of death investigations. As a police 7 service we could, under the legislation, make application 8 to the executive board to have a particular case that we 9 were working on designated as a major case and utilize 10 the -- the case management component of that software. 11 But if the legislation were to change I 12 don't think the -- the work would be that onerous on the 13 police services to do it, yet I can certainly see the 14 benefits of that software if, you know, you end up 15 ultimately working on a suspicious or unusual one and/or 16 a homicide. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Now, just stopping 20 there for a -- 21 COMMISSIONER STEPHEN GOUDGE: Well -- 22 MR. MARK SANDLER: I'm sorry. 23 COMMISSIONER STEPHEN GOUDGE: Sorry. I 24 just want find out a little bit about the software and 25 why it is so helpful.

145

1 MR. ROBERT KEETCH: Basically, that again 2 was one (1) of the recommendations that came out of the 3 Cam -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. ROBERT KEETCH: -- committee that a 6 software be developed. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. ROBERT KEETCH: It tracks your 9 investigation. All investigative data is imported into 10 the investigation. Assignments are generated based on 11 that information which are then tracked. So as data 12 comes in, assignments go out, results in incoming data. 13 There's a very nice audit trail. It is 14 very searchable in a sense of if I want to know specific 15 information; what date, what report, or where it's found, 16 I can search that in a matter of seconds. 17 So it's a very efficient case management 18 tool which will not only be efficient, but it'll ensure 19 that all of the various police agencies within the 20 province are kind of using the same set of rules to 21 govern the data storage of that -- and case management of 22 those type of investigations. 23 COMMISSIONER STEPHEN GOUDGE: Right. And 24 I take it the premise for wanting to include in the major 25 case definition, SIDS and SUDS deaths, Inspector, is

146

1 against the possibility that they will become criminal 2 investigations or suspicious deaths at some point along 3 the way? 4 MR. ROBERT KEETCH: Yeah. I mean, you're 5 front-end loading the system. 6 COMMISSIONER STEPHEN GOUDGE: Right. You 7 are having the widest catchment area really? 8 MR. ROBERT KEETCH: Yes. 9 COMMISSIONER STEPHEN GOUDGE: Is that 10 what you mean by front-end loading? 11 MR. ROBERT KEETCH: Yes. 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: So it -- Commissioner 16 anticipated one (1) of my questions, which was would 17 every single SIDS or SUDS cases, even in the absence of 18 suspicion, be characterized under the definition for 19 major cases or would there be some qualifying criteria 20 that would say SIDS or SUDS cases where suspicion is 21 raised, or -- 22 MR. ROBERT KEETCH: I would like to 23 capture both initially. We have a further caveat that we 24 can break down the -- kind of the work requirement, and 25 we do it for sexual assaults.

147

1 Relative major case investigations, we 2 have threshold/non-threshold sexual assault, and it tends 3 to be -- and again, I don't like to use a minor sexual 4 assault would be non-threshold and there would be a data 5 entry standard which would not be onerous on the police 6 service. 7 I don't see the benefit of establishing a 8 threshold relative to SIDS and SUDS investigations, 9 because the -- we use the threshold to get -- to feed the 10 triggering database. So that if a non-threshold sexual 11 assault links to another one (1), both services are 12 notified and there's early recognition. 13 As I said earlier, I don't see the -- the 14 triggering database being the reason to go in to -- to 15 put SIDS or SUDS within the definition. I see the fact 16 that we're using the cage -- case management aspect of 17 the software to do that. 18 MR. MARK SANDLER: Okay. 19 MR. ROBERT KEETCH: And I can tell you 20 we've had these discussions at a committee level. Now 21 that we're -- there's been growing pains relative to the 22 use of this software, and as police agencies, we had to 23 develop a process to -- to work with the software. 24 But we are now -- most of the agencies are 25 now in a position where they can work with it, and as a

148

1 committee, we're starting to look outside of the scope of 2 what's a defined major case now to see what else we could 3 include, and -- and potentially get the benefit of the 4 various aspects of using that software. 5 The only caution that I put forward, is it 6 is a regulation that has been passed by government, and 7 there is some difficulty in revisiting those regulations. 8 COMMISSIONER STEPHEN GOUDGE: So is the 9 definition of "major case" done by regulation in terms 10 of -- 11 MR. ROBERT KEETCH: The whole manual -- 12 COMMISSIONER STEPHEN GOUDGE: -- 13 legislative tool? 14 MR. ROBERT KEETCH: The whole manual and 15 definitions are -- 16 COMMISSIONER STEPHEN GOUDGE: So it would 17 take a new regulation? 18 MR. ROBERT KEETCH: It would take a new 19 regulation. 20 COMMISSIONER STEPHEN GOUDGE: I see. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: Okay. 24 MR. ROBERT KEETCH: The only -- the -- 25 the final concern that I have, and I am -- I'm only going

149

1 to voice this, I think, as a caution. And I -- 2 MR. MARK SANDLER: All right, and should 3 we put up on the screen, PFP032474. 4 MR. ROBERT KEETCH: We're talking 5 protocol? 6 MR. MARK SANDLER: And Commissioner, you 7 won't have this -- yes. 8 9 (BRIEF PAUSE) 10 11 MR. ROBERT KEETCH: Okay, and I would 12 take you to -- I -- I've reviewed this protocol -- 13 current protofall -- protocol for Sudden and Unexpected 14 Deaths in Children Under Five years of age. 15 And I have concerns with a statement under 16 the Coroner's investigation essential components. 17 MR. MARK SANDLER: This is Item 6? 18 MR. ROBERT KEETCH: Yeah. And I -- Item 19 -- specifically Item 6 of that protocol which states: 20 "The results of the full investigation 21 will be reviewed by the Death Under 22 Five Committee, the Office of the Chief 23 Coroner. The committee will make the 24 final decision on the cause and manner 25 of death."

150

1 And -- and I have concerns with that 2 process in a sense that they will make -- and my concern 3 is, kind of, with the, "they will make the final 4 decision." And the reason I have concerns is individuals 5 potentially with -- without the necessary expertise will 6 be making the final decision. 7 And was this not the exact situation that 8 took place in Nicholas' death, where you had pediatric 9 forensic pathologists, representation from the Chief 10 Coroner's Office of Ontario legal counsel and/or police 11 officers present sitting around a table making this -- 12 this decision? 13 And the concern I have is that had that 14 caveat not been placed on Dr. Smith's conclusion in the 15 absence of a credible explanation, we would have gone 16 forward with criminal charges under these exact 17 circumstances that are, kind of, illustrated in -- in 18 this component of the Death Under Five Protocol. 19 And as I said earlier, I'd be much more 20 comfortable in this peer review or verification process 21 of the ped -- forensic pediatric pathologists opinion. 22 And then as I said here, and it may be just simple words, 23 but I'm comfortable with this group reviewing the final 24 decision, but I don't know that -- my concern is, kind 25 of, from previous experience as I said.

151

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. ROBERT KEETCH: We were in various -- 3 COMMISSIONER STEPHEN GOUDGE: Suppose 4 they were armed with the peer review as well? 5 MR. ROBERT KEETCH: And we -- I -- I look 6 back at Nicholas' investigation and, kind of, view us as 7 potentially being in this position where -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MR. ROBERT KEETCH: -- the exact position 10 that we're asking these individuals to make a final 11 decision. And as I said, I think we would have made the 12 final decision had that caveat -- 13 COMMISSIONER STEPHEN GOUDGE: Absent -- 14 MR. ROBERT KEETCH: -- not been attached, 15 which was a wrong decision. And that kind of concerns 16 me. 17 COMMISSIONER STEPHEN GOUDGE: But what 18 was missing there was the peer review of -- 19 MR. ROBERT KEETCH: The peer review. 20 COMMISSIONER STEPHEN GOUDGE: -- Dr. 21 Smith. 22 MR. ROBERT KEETCH: The peer review. 23 And -- 24 COMMISSIONER STEPHEN GOUDGE: Would you 25 have had the same concern if sitting around the table in

152

1 Sudbury, you'd had Dr. Smith's report and a peer review 2 of it? 3 MR. ROBERT KEETCH: Probably not. If -- 4 I mean, again -- 5 COMMISSIONER STEPHEN GOUDGE: It is the 6 peer review that is critical in your mind? 7 MR. ROBERT KEETCH: It is. And, I mean, 8 I can't -- it's difficult for us, as police officers, to 9 question -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MR. ROBERT KEETCH: -- experts. 12 COMMISSIONER STEPHEN GOUDGE: I was going 13 to ask you about that -- 14 MR. ROBERT KEETCH: Very difficult. 15 COMMISSIONER STEPHEN GOUDGE: -- as one 16 (1) additional -- 17 MR. ROBERT KEETCH: And I mean I felt -- 18 the twenty (20) questions that I asked him, you're 19 walking a fine line. Because I have no medical training, 20 no -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 MR. ROBERT KEETCH: -- medical basis to 23 ask these individuals and, kind of, very delicately 24 question them relative to their opinions. 25 And that's why -- I think that

153

1 verification -- because when I had met with counsel 2 earlier to discuss any potential recommendations, it had 3 been suggested that an outside expert be created for 4 police potentially to access, to their -- to go to 5 relative to the opinion. 6 And I said you're placing the -- the 7 police officer in a terrible position to make that 8 decision, to not accept the, you know -- or potentially 9 second guess -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MR. ROBERT KEETCH: -- the opinion and go 12 seek outside. If it's automatically built in to the 13 process you remove the -- my obligation of making that 14 decision and potentially any ramifications, you know, of 15 future involvement I would have with those -- 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: You make an -- 19 MR. ROBERT KEETCH: -- those experts. 20 MR. MARK SANDLER: You make an 21 interesting point. I mean, I'll ask you about that in 22 another way and, that is, did you ever consider, in the 23 course of the Nicholas investigation, when -- when you 24 felt as a lay person or as a police officer without 25 forensic pathology training that the pillars were -- were

154

1 falling aside but that Dr. Smith was maintaining his 2 position, that you should ask for a second opinion? 3 MR. ROBERT KEETCH: In hindsight should I 4 have? Yes. 5 COMMISSIONER STEPHEN GOUDGE: No, no -- 6 MR. ROBERT KEETCH: But no, I know. No, 7 I didn't -- I didn't know where to go. I mean, I had the 8 Deputy Chief Coroner supporting the -- the forensic 9 pathologist that had done the autopsy. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: And that's your point, 13 isn't it, that the onus should not be on the police to 14 have to determine that a second opinion is warranted or 15 needed or -- or to confront the Chief Coroner's Office 16 with that possibility, as opposed to a system that builds 17 in peer review where that's going to take place without 18 you asking for it? 19 MR. ROBERT KEETCH: I agree. 20 MR. MARK SANDLER: Okay. That's very 21 helpful, thank you very, very much. 22 COMMISSIONER STEPHEN GOUDGE: That's an 23 interesting... 24 I just want to pursue where Mr. Sandler 25 took you just at the end, just a little bit, Inspector.

155

1 I mean, you've made it very clear that for 2 reasons that you articulate very well putting the onus, 3 as Mr. Sandler called it, on the police investigator to 4 determine when the expert opinion that is being received 5 by that officer is questionable is a fairly high 6 standard, an impossible standard. 7 But to come back to a discussion you and I 8 had a little bit. I took those questions that you 9 prepared very carefully and as it turns out, quite 10 insightfully, to be the product of your own reading in 11 part; that is, you would have done some reading about -- 12 about forensic pathology. 13 Am I right about that? 14 MR. ROBERT KEETCH: Yes, I did. I mean, 15 a lot of it was looking up medical terms, trying to find 16 out -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. ROBERT KEETCH: -- you know, what's - 19 - when he's making this statement what is he referring to 20 and what are the -- you know, what potentially -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 MR. ROBERT KEETCH: -- are the medical 23 causes. 24 There was some research done. I can tell 25 you that Dr. Deacon also provided me with some

156

1 information relative to cerebral edema and stuff like 2 that. But -- 3 COMMISSIONER STEPHEN GOUDGE: Yes. I 4 guess what I am getting at is while it is clearly a lot 5 to ask of the investigator to serve as a, kind of, fail- 6 safe against what turns out to be an erroneous post- 7 mortem analysis, is there room within the specialization 8 of police investigation that you talked about at the very 9 beginning for some enhanced education of investigators of 10 pediatric deaths to, at least, make them aware of the 11 kinds of medical terms, maybe medical issues, that can 12 commonly arise in infant deaths? 13 MR. ROBERT KEETCH: Yeah, there certainly 14 is. The one (1) that I didn't get to that I could also 15 recommend is similar to this pool of multi-jurisdictional 16 major case managers that the Province has -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. ROBERT KEETCH: -- relative to major 19 case investigations, maybe a similar pool could be 20 created relative to -- 21 COMMISSIONER STEPHEN GOUDGE: Of 22 expertise? 23 MR. ROBERT KEETCH: -- SIDS and SUDs 24 deaths where, you know, if the Greater Sudbury Police 25 Service is investigating a death of a child under two

157

1 (2), and you always want to bounce opinions and -- and 2 seek outside advice, and if there was a pool created 3 that, you know, I knew Toronto had a certain detective 4 that seemed to have an expertise or -- 5 COMMISSIONER STEPHEN GOUDGE: Right, or 6 may have taken -- 7 MR. ROBERT KEETCH: -- previous 8 experience that I could -- 9 COMMISSIONER STEPHEN GOUDGE: -- 10 specialized courses or something. 11 MR. ROBERT KEETCH: -- that I could 12 consult on an ongoing basis, and that would be -- 13 COMMISSIONER STEPHEN GOUDGE: Does that 14 exist at all in any -- in any other sort of sub-specialty 15 of police investigation in your -- in your major case 16 management? I mean, do you have forensic specialties for 17 the -- for, you know, bullets or -- to pull an example 18 out of the air? 19 MR. ROBERT KEETCH: Footwear examined. 20 It tends to be -- you know, we do have experts, 21 recognized experts, in fingerprint examination, footwear 22 examination; we kind of develop our own experts to that 23 field. 24 You'll see that we develop our own experts 25 relative to traffic reconstruction, as well, it's --

158

1 COMMISSIONER STEPHEN GOUDGE: But does 2 the Major Case Management technique allow you to access a 3 province wide pool of expertise like that? 4 MR. ROBERT KEETCH: The -- the closest 5 you would get to that is the designated multi- 6 jurisdictional Major Case Managers, and then -- 7 COMMISSIONER STEPHEN GOUDGE: And their 8 knowledge of what expertise was available in various 9 police services? 10 MR. ROBERT KEETCH: Well, I mean, that's 11 kind of more word of mouth. Like I know that there are 12 certain -- 13 COMMISSIONER STEPHEN GOUDGE: So it's not 14 formalized in any way. 15 MR. ROBERT KEETCH: No, not that I'm 16 aware of. I mean there are certain, you know, say 17 forensic identification technicians that specialize in 18 footwear examination. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MR. ROBERT KEETCH: Then I would go to 21 per -- to potentially that person. I mean the -- the 22 Chief Coroner's Office also has a list of experts that 23 police can access, you know, in consultation with them 24 say in relation to dentistry or, you know, there is a 25 list not --

159

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MR. ROBERT KEETCH: -- you know, not 3 experts and stuff, but there -- there isn't that -- I'm 4 not aware of any list of, you know, potentially experts 5 and/or on the policing perspective, experts within -- a 6 list of experts within the policing field where you can 7 go and -- and consult these individuals. 8 And I -- I could see value, as I said, for 9 us as a policing community to create such a list and -- 10 COMMISSIONER STEPHEN GOUDGE: Yeah. I 11 mean the Major Case Management Committee structure is a 12 useful vehicle for that kind of specialized expertise if 13 it were seen appropriate to develop it. 14 MR. ROBERT KEETCH: Yeah. 15 COMMISSIONER STEPHEN GOUDGE: Thanks, 16 Inspector. 17 MR. MARK SANDLER: Thank you very much, 18 sir. 19 Commissioner, I've completed my 20 examination-in-chief. What -- what I suggest is perhaps 21 we break early and -- and resume early and -- 22 COMMISSIONER STEPHEN GOUDGE: That's 23 fine. 24 MR. MARK SANDLER: -- and I'll canvass 25 times again for cross-examination.

160

1 COMMISSIONER STEPHEN GOUDGE: Good. 2 Okay, so why don't we break now and come back at, I 3 guess, ten (10) to 2:00. 4 MR. MARK SANDLER: Thank you. 5 COMMISSIONER STEPHEN GOUDGE: We'll rise 6 until then. 7 8 --- Upon recessing at 12:35 p.m. 9 --- Upon resuming at 1:51 p.m. 10 11 MR. REGISTRAR: All rise. Please be 12 seated. 13 COMMISSIONER STEPHEN GOUDGE: Okay. Mr. 14 Wardle, I think we start with you. 15 16 CROSS-EXAMINATION BY MR. PETER WARDLE: 17 MR. PETER WARDLE: Good afternoon, 18 Inspector Keetch. 19 MR. ROBERT KEETCH: Good afternoon. 20 MR. PETER WARDLE: We've already 21 introduced ourselves but I'll -- just for the record I'll 22 remind you that I am Peter Wardle and I act for a number 23 of families affected by conclusions made by Dr. Smith in 24 various cases. And the families that I act for include 25 the XXXX Family.

161

1 MR. ROBERT KEETCH: Okay. 2 MR. PETER WARDLE: I'm going to start, if 3 I might, by just putting to you an observation made 4 earlier by Dr. Pollanen who is now the Chief Forensic 5 Pathologist for the Province. 6 And I don't know if you've had a chance to 7 follow any of Dr. Pollanen's testimony at the Inquiry? 8 MR. ROBERT KEETCH: No, I have not. 9 MR. PETER WARDLE: All right. Well, one 10 (1) of the things that Dr. Pollanen said when he -- he's 11 been here a couple of times, but during his first 12 attendance -- and I'm paraphrasing. But what he said was 13 that in sudden unexplained deaths involving young infants 14 like Nicholas' age, that the medical evidence often 15 becomes critical because there often is no other 16 evidence. 17 There's no witnesses, there's no 18 confession, there's no circumstantial evidence. 19 Oftentimes there's just a crib or a child that arrives at 20 Emergency. 21 And so that in these cases, these often 22 very difficult cases that the Commissioner is examining, 23 the medical evidence takes on an importance that it may 24 not have in many other criminal investigations. 25 Do you agree with that observation?

162

1 MR. ROBERT KEETCH: Yes, I would agree 2 with that statement. 3 MR. PETER WARDLE: Okay. And so I want 4 to just examine a little bit the police investigation and 5 the CAS investigation with that in mind. And I'll take 6 you through a little bit of the chronology that My Friend 7 took you through this morning, but hopefully in shorter 8 order. 9 And would you agree, first of all, that 10 between 1995 when the child died and 1999 with the report 11 of Dr. Case that this was very much a roller coaster ride 12 for the family of the family of the deceased child? 13 MR. ROBERT KEETCH: Yes, I'd agree with 14 that statement. 15 MR. PETER WARDLE: Okay. And what I'm 16 thinking of is we start with Dr. Chen's analysis and his, 17 I assume, informal advice to you at the time of the 18 autopsy that this was a natural death. Correct? 19 MR. ROBERT KEETCH: The telephone 20 conversation that the two (2) -- 21 MR. PETER WARDLE: Correct. 22 MR. ROBERT KEETCH: -- of us had? Yes. 23 MR. PETER WARDLE: And then we go through 24 all the intervening events up to the release of Dr. 25 Case's report in March of 1999, and you know that she

163

1 concluded that this was one (1) of those small category 2 of deaths of infants that's just undetermined. Correct? 3 MR. ROBERT KEETCH: That's correct. 4 MR. PETER WARDLE: And the police 5 investigation, as I heard you this morning, it was only 6 because of perhaps poor terminology chosen by Dr. Smith 7 in his post-mortem report that charges weren't laid. 8 Correct? 9 MR. ROBERT KEETCH: I think the potential 10 was definitely there that absent that -- those words that 11 were preceding his final determination of the cause of 12 death, the potential was there that we would have gone 13 forward with a homicide charge. I think that's a fair 14 statement. 15 I mean, obviously there would have been 16 ongoing consultation with the Crown Attorney's Office in 17 relation to that and it's hard to -- to anticipate what 18 would have occurred had that not been there. But -- at 19 least from my personal standpoint, absent that I thought 20 I was in a position where we potentially, with the 21 information we had at that point in time, the potential 22 was there to go forward with a homicide charge against 23 Lianne. 24 MR. PETER WARDLE: And we don't know why 25 Dr. Smith used those words but I took you to be saying

164

1 this morning, he wasn't using those words to communicate 2 any doubt in his mind about the cause of death. 3 Correct? 4 MR. ROBERT KEETCH: I think that's a fair 5 statement. That he was -- he was of the opinion that 6 Lianne had been directly responsible for Nicholas' death. 7 MR. PETER WARDLE: Now you said something 8 this morning I thought I caught that one (1) possibility 9 is that it was an escape route. 10 And I took you to mean by that that 11 sometimes doctors leave themselves a little bit of room 12 in case something happens later? 13 MR. ROBERT KEETCH: Again, that's -- you 14 know, me -- me analyzing that statement and looking at it 15 from a personal standpoint. It's very -- I'm -- I'm not 16 in a position to say why he put it there, but, you know, 17 the -- the appearance is -- could potentially be there 18 that it was, as I said, an escape clause, you know. 19 MR. PETER WARDLE: All right. So just 20 again in overview, thinking about the police 21 investigation and the subsequent CAS investigation, all 22 of that, you agree, was very traumatic for the family? 23 MR. ROBERT KEETCH: Certainly. 24 MR. PETER WARDLE: And not so much the 25 police investigation, but the CAS investigation ended up

165
  1   being very costly for the XXXX family because they had to
  2   retain experts and counsel, correct?
  3                  MR. ROBERT KEETCH:   I'm of the -- the
  4   understanding that Maurice XXXX went through an extensive
  5   man -- amount of his retired savings -- retirement
  6   savings between the two (2) proceedings.
  7                  MR. PETER WARDLE:   Okay.  So let me just
  8   look at your involvement, Officer, and again, I'm going
  9   to simplify, so if I'm too simplistic, just catch me and
 10   let me know.  
 11                  But the investigation is essentially
 12   closed after the initial autopsy done by Dr. Chen,
 13   correct?
 14                  MR. ROBERT KEETCH:   That's correct.
 15                  MR. PETER WARDLE:   It's reopened again at
 16   the time of Dr. Smith's initial consultation, correct, in
 17   January of 1997?
 18                  MR. ROBERT KEETCH:   That's correct.
 19                  MR. PETER WARDLE:   Okay.  And that --
 20   just to turn that up, his consultation report is in your
 21   binder at Tab 9, I have it.  
 22                  MR. ROBERT KEETCH:   Yes, sir.
 23                  MR. PETER WARDLE:   And that's the report
 24   that has, what you called "the five (5) pillars," which
 25   are found on page 3, correct?

166

1 MR. ROBERT KEETCH: Yes, sir. 2 MR. PETER WARDLE: And, as I understand 3 it, within a day or two (2) of this report being 4 prepared, Dr. Smith flies up to Sudbury and meets with 5 yourself, Dr. Deacons, Dr. Uzans, correct? 6 MR. ROBERT KEETCH: The first information 7 I had on this report was when he attended that meeting. 8 I knew there was a meeting scheduled. I didn't know in 9 advance why were meeting with these individuals other 10 than it related to the XXXX investigation. 11 So the first time I observed this report 12 was during that initial meeting in January. 13 MR. PETER WARDLE: So I have it that 14 during 1997 there were four (4) meetings that you 15 participated in with Dr. Smith; one (1) in January, one 16 (1) in May, one (1) in August, and one (1) in late 17 November? 18 MR. ROBERT KEETCH: That's correct. 19 MR. PETER WARDLE: Okay. And so this was 20 the first one he presented these findings, correct, at 21 that time? 22 MR. ROBERT KEETCH: That's correct. 23 MR. PETER WARDLE: And then do you recall 24 that there were efforts made to get the child's brain 25 from the hospital and from Dr. Chen?

167

1 MR. ROBERT KEETCH: Yeah, those 2 arrangements were made on this particular day when we 3 picked up the original x-rays as well. 4 MR. PETER WARDLE: Because Dr. Smith 5 wanted to examine the brain, correct, which had been 6 fixed? 7 MR. ROBERT KEETCH: That's correct. 8 MR. PETER WARDLE: And just turning to 9 your notes for a moment, and this is at Tab 10, it's 10 PFP139273. And turning to an entry on -- it's page 279, 11 so it's for April -- sorry, it's about the fifth page in 12 from the front. You'll see an entry for -- for -- at the 13 bottom of the page for Friday, April 18, 1997. 14 Just go back, Mr. Registrar -- sorry, 15 forward one (1) page. I think we've got the right page 16 now, Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: Yes. 18 19 CONTINUED BY MR. PETER WARDLE: 20 MR. PETER WARDLE: So looking at that 21 entry at the bottom of the page and over the top of the 22 following page, it's starts: 23 "Speak with Dr. Smith regarding 24 examination of the brain of Nicholas." 25 And then you'll see over the page:

168

1 "Stated cerebral edema present, 2 confirmed by the appearance. No sub -- 3 subarachnoid hemorrhages." 4 And then you'll see it says: 5 "Acute swelling of the brain had to be 6 caused by something. Some causes can 7 be trauma asphyxia." 8 And I take it this is information you were 9 provided by Dr. Smith at this meeting? 10 MR. ROBERT KEETCH: I -- this would have 11 been a telephone conversation, I believe. 12 MR. PETER WARDLE: I'm sorry. This is a 13 telephone call. I'm sorry. Let me back up a little bit. 14 And I'm going -- I'm going a little faster than perhaps I 15 should. 16 Arrangements are made to send the brain 17 down to Sick Kids so that Dr. Smith can examine it, and 18 then you and he have a telephone call when that's taken 19 place? 20 MR. ROBERT KEETCH: That's correct. 21 MR. PETER WARDLE: Okay. So you'll see 22 here just looking at this entry that I focussed on: 23 "Acute swelling of the brain had to be 24 caused by something. 25 And just pausing there; Dr. Chen, of

169

1 course, we know, had fine -- found -- and just let me get 2 the exact reference -- patchy mild cerebral edema was Dr. 3 Chen's finding. This is at -- I'm not going to take you 4 to it, but it's in the overview report at paragraph 30. 5 And then going on a little bit further, we 6 have stated that he still feels that the investigation is 7 more likely a homicide than a sudden death. The 8 radiologist that first thought that there was a fracture 9 of the left mandible how -- have now, after examining the 10 original x-rays, say it is more likely that the left 11 mandible is not fractured. A lot is dependent on what 12 Dr. Chen observed. 13 So I read it that Dr. Smith was pretty 14 focussed at this point on cerebral edema, and that even 15 at that early stage, the issue of the issue of the 16 mandibular fracture was already starting to go away. 17 And it doesn't go away completely until 18 the second autopsy is done, correct, but it's not a 19 factor in the equation for very long. 20 MR. ROBERT KEETCH: That's a fair 21 statement, I think. 22 MR. PETER WARDLE: Okay. And we know 23 from following on in your notes that by May, a second one 24 (1) of the five (5) pillars, which was the increased head 25 circumference, was also going away, correct?

170

1 MR. ROBERT KEETCH: Correct. 2 MR. PETER WARDLE: And, in fact, that 3 really -- well, I'll just take you to your notes again. 4 Mr. Sandler took you to this; the very next page, the 5 entry "Friday, 2nd of May 1997," you'll see the very last 6 entry there: 7 "Dr. Deacon to plot head circumference 8 on graph, and fact same." 9 And then I understand that that was 10 reviewed at the May 7th meeting with Dr. Smith and Dr. 11 Cairns, correct? 12 MR. ROBERT KEETCH: Correct. 13 MR. PETER WARDLE: So that -- that factor 14 also ended up disappearing, if you will, correct? 15 MR. ROBERT KEETCH: Correct. 16 MR. PETER WARDLE: Leaving only three (3) 17 of the original five (5) pillars. 18 MR. ROBERT KEETCH: Correct. 19 MR. PETER WARDLE: And -- and, if you 20 look at the original five (5) pillars -- and just going 21 back to tab 9, PFP007659, the last page, scalp injury, 22 which is one (1) of the -- one (1) of the remaining 23 pillars, that's the very small bruising that you had 24 observed on the forehead, correct? 25 MR. ROBERT KEETCH: Correct.

171

1 MR. PETER WARDLE: And -- 2 MR. ROBERT KEETCH: I would believe that 3 to be correct. That's the only indication that we had of 4 any injury on Nicholas's head. 5 MR. PETER WARDLE: And splitting of skill 6 -- skull sutures on radiography; putting aside the debate 7 over how widely split the sutures are, as I read the 8 material, the reason that appears to be important at this 9 time for Dr. Smith is that it would suggest marked 10 cerebral edema; in other words, it goes to the swelling 11 of the brain. 12 MR. ROBERT KEETCH: That's correct. 13 MR. PETER WARDLE: So we have a case 14 that, now in retrospect -- and I'm not suggesting you 15 have figured this out the time -- but now in retrospect, 16 appears to be built almost entirely around a finding of 17 cerebral edema, correct? 18 MR. ROBERT KEETCH: Correct. 19 MR. PETER WARDLE: Okay. All right, so 20 let's move along in the chronology, then, and again, I'm 21 going to go through this quickly. You have a meeting on 22 the 7th of May with Dr. Cairns and Dr. Smith. 23 And following that meeting you went and 24 retained Sergeant Van Allen from the OPP, as I understand 25 it, within a few days?

172

1 MR. ROBERT KEETCH: I'm not -- 2 MR. PETER WARDLE: Do you want me to take 3 you to that in the -- 4 MR. ROBERT KEETCH: Yeah, I -- I was 5 almost going to -- I mean, my recollection, again, I 6 apologize, twelve (12) years ago, I -- I would have 7 thought that Van Allen would have been consulted earlier 8 in January when the -- the initial consultation report 9 was provided, but you could direct me to -- and I could 10 be correct -- stand to be correct. 11 MR. PETER WARDLE: No, in fact, you could 12 be correct. Let's just have a look quickly at the 13 overview report at paragraph 61. 14 To be fair to you, sir, this simply says 15 that on May the 12th you provided the statement to 16 Detective Sergeant Van Allen; it doesn't say when you 17 first spoke to him, so you may well have spoken to him 18 earlier? 19 MR. ROBERT KEETCH: I met with him that 20 day, but I don't -- I don't recall whether I would have 21 spoken with him in January when we provided the initial 22 report or -- you know, to me this sounds like the two (2) 23 of -- he -- he came to Sudbury and we met, but whether 24 there would have been conversations prior... 25 MR. PETER WARDLE: So it is fair to say

173

1 that some time after getting the original consultation 2 report from Dr. Smith, you got in touch with Sergeant Van 3 Allen and then you made arrangements in May for him to 4 review the statement? 5 MR. ROBERT KEETCH: That's correct. 6 MR. PETER WARDLE: Okay. And the reason 7 you were doing that, I suggest, is that you're looking 8 for other evidence to buttress the medical evidence, 9 correct? 10 MR. ROBERT KEETCH: Well, I -- I'm 11 looking for other indications of deception that would 12 potentially be used to illustrate that Lianne may have 13 been responsible for Nicholas' death. Kind of trying to 14 reassure myself because I -- I know that it has no weight 15 in a court of law, but it also -- you know, as I said, 16 it's a tool that we can use to indicate deception, which 17 may show culpability on Lianne's behalf in Nicholas' 18 death. 19 MR. PETER WARDLE: Correct. Then as I 20 understand it, in June you conduct a full-scale interview 21 of Lianne, correct -- you and another colleague? 22 MR. ROBERT KEETCH: Yes. 23 MR. PETER WARDLE: And I just want to 24 take you to that briefly. It's in the materials at -- 25 it's Tab 17, and it's PFP008195.

174

1 MR. ROBERT KEETCH: I'm there. 2 MR. PETER WARDLE: And is it fair to say 3 that this interview involved not only going through the 4 history again, but at some point in the interview, it 5 became an accusatory interview, correct? 6 MR. ROBERT KEETCH: That's a fair 7 statement. 8 MR. PETER WARDLE: And just looking -- 9 and I'm not doing this to be critical, Officer, because I 10 understand at the time you and your colleagues were 11 convinced, based on what you'd heard from Dr. Smith and 12 Dr. Cairns, that this was not an accidental death and 13 Lianne had been somehow involved, correct? 14 MR. ROBERT KEETCH: Correct. 15 MR. PETER WARDLE: Okay. So, let's look 16 at -- just want to take you to page 24 -- sorry, I'm 17 going to start with page 19. And you'll see that 18 Sergeant West says, about a third of the page down -- and 19 this is after Lianne has been giving an explanation, 20 various explanations for what could have caused the -- 21 his prob -- Nicholas' problems, Sergeant West says: 22 "Well, we aren't talking, that doesn't 23 -- doesn't cover what the problem is 24 here. And, Lianne, both you and I know 25 that there is more here than what

175

1 you've told us about." 2 And she says: 3 "Oh, God..." 4 And then it goes on, and you'll see that - 5 - towards the bottom of the page: 6 "When the coroner reexamined the case, 7 there's no doubt in the pathologist's 8 mind that Nicholas did not die of 9 natural causes." 10 And then going over the next few pages, I 11 took it that there is -- the interview is ratcheted up 12 and there is an attempt to get Lianne to say something 13 inculpatory, correct? 14 MR. ROBERT KEETCH: Correct. 15 MR. PETER WARDLE: And then I want to 16 take you to just one (1) reference, maybe two (2) 17 references. First of all, page 22, top of the page. 18 Sergeant West: 19 "Now, we know that this wasn't an 20 accidental thing. The pathologist is 21 firm on that that this is not an 22 accidental thing." 23 And then a little further on, page 24 at 24 the very bottom, there's a discussion about whether there 25 was some choking involved, and then at the very bottom of

176

1 the page Sergeant West says: 2 "That end of it, you have to understand 3 that these people, they're professional 4 who, the pathologist, the head 5 pathologist for Ontario -- I mean, this 6 is a man who's not making idle 7 speculation. This is a man who knows 8 and who has empowered that knowledge to 9 us that his death was not natural. 10 That's the reality of it." 11 And I took it from that, that this was 12 both a -- a pointer to the firmness with which Dr. Smith 13 held his views and had communicated it to you and your 14 colleague, but also about what you thought about his 15 stature within the profession, correct? 16 MR. ROBERT KEETCH: Correct. 17 MR. PETER WARDLE: Okay. And then going 18 a little further in the chronology, there's the 19 exhumation in June, and you've told My Friend about the 20 exhumation and what follows. 21 And then one (1) thing we didn't cover 22 this morning, after the exhumation in July of 1997, your 23 team made an attempt again to get some inculp -- 24 inculpatory statements from Lianne. 25 You body-packed the boyfriend and arranged

177

1 for a conversation to take place between the two (2) of 2 them, correct? 3 MR. ROBERT KEETCH: Ex-boyfriend, yes, 4 that's correct. 5 MR. PETER WARDLE: Ex-boyfriend. Ex- 6 boyfriend. 7 MR. ROBERT KEETCH: Ex-father. 8 MR. PETER WARDLE: Correct. And as it 9 turns out, Lianne didn't say anything in that 10 conversation that was inculpatory, correct? 11 MR. ROBERT KEETCH: Correct. 12 MR. PETER WARDLE: Okay. Then, as I 13 understand it, there's a meeting in August -- on August 14 the 7th at which Dr. Smith presents the preliminary 15 findings from the post-mortem examination which had taken 16 place in June, correct? 17 MR. ROBERT KEETCH: Correct. 18 MR. PETER WARDLE: And that was at the 19 time when you were asking for the written post-mortem 20 report? 21 MR. ROBERT KEETCH: Probably the first 22 request, yes. 23 MR. PETER WARDLE: Okay. And I don't 24 want to go through all your notes, but you continued to 25 follow up with Dr. Smith, unsuccessfully right into

178

1 October before you got that report at the end of October, 2 correct? 3 MR. ROBERT KEETCH: Correct. 4 MR. PETER WARDLE: And that report was 5 actually dated August the 6th, but you certainly didn't 6 see it before the end of October, correct? 7 MR. ROBERT KEETCH: Correct. 8 MR. PETER WARDLE: Okay. And Dr. Smith's 9 post-mortem report, without belabouring it, although it 10 made clear that there was no mani -- mandibular fracture, 11 it created a new pillar for his opinion, which was the 12 discolouration on the right parietal bone, correct? 13 MR. ROBERT KEETCH: Correct. 14 MR. PETER WARDLE: Okay. Which at the 15 time, to you Officer, would have seemed like a very 16 important piece of information? 17 MR. ROBERT KEETCH: It was probably the 18 only positive -- well, potentially positive information 19 or -- that had come from the second autopsy, or positive 20 -- I mean, the only result or indication that had come 21 from the second autopsy that we weren't aware of 22 previously. 23 MR. PETER WARDLE: In other words, you 24 had started with five (5) pillars. Two (2) of them were 25 gone, correct?

179

1 MR. ROBERT KEETCH: Correct. 2 MR. PETER WARDLE: And the only thing 3 that the autopsy had really confirmed was that the 4 mandibular fracture was out, but now you had this single 5 new finding to support the analysis, correct? 6 MR. ROBERT KEETCH: Well, there was some 7 indication or reference with regard to the splitting of 8 the skull sutures during -- you know, as a result of his 9 second autopsy as well. 10 MR. PETER WARDLE: Right. Also related 11 to the colouration of the bone at autopsy, correct? 12 MR. ROBERT KEETCH: Correct. 13 MR. PETER WARDLE: Okay. All right, so 14 now we move to the end of November, and you have a 15 meeting with the Crown, the investigative team, Dr. Smith 16 -- is Dr. Cairns at that meeting? 17 MR. ROBERT KEETCH: I -- my recollection 18 is he was at that meeting, yes, sir. 19 MR. PETER WARDLE: Okay. And you told us 20 about that this morning; that that's when the decision 21 was made to withdraw the charges? 22 MR. ROBERT KEETCH: Well, there were no 23 charges ever laid. 24 MR. PETER WARDLE: I'm sorry, not to lay 25 charge.

180

1 MR. ROBERT KEETCH: Not to proceed with 2 charges, yes. 3 MR. PETER WARDLE: Okay. Now your 4 opinion at the time though, as I understand it, was that 5 Lianne had injured her child intentionally. 6 That was your view and the view of the 7 rest of the investigatory team, correct? 8 MR. ROBERT KEETCH: I can't -- for the 9 investigatory team, yes. 10 MR. PETER WARDLE: Okay. And it wasn't 11 until some point in 1999 that you changed your view, 12 correct? As a result of new information that came to 13 you? 14 MR. ROBERT KEETCH: Like, I don't know if 15 I can definitively you when I changed my mind. I mean, 16 yeah, I was obviously privy to information and -- and 17 newspaper reportings and various information that was 18 circulating in relation to Dr. Smith. 19 At what point in time I conclusively said 20 to myself, you know, that Lianne was not responsible for 21 his death, I don't know that there's -- you know, I can 22 give you an actual date. If you can reference something 23 in '99 that would -- 24 MR. PETER WARDLE: I -- I can, actually. 25 MR. ROBERT KEETCH: Okay.

181

1 MR. PETER WARDLE: I'm going to ask you 2 to turn up, -- and I'm not sure this is in the binder. 3 It's PFP302582. 4 MR. ROBERT KEETCH: Tab, sorry? 5 COMMISSIONER STEPHEN GOUDGE: You may 6 have to look at it on the screen. 7 8 CONTINUED BY MR. PETER WARDLE: 9 MR. PETER WARDLE: You may just have to 10 look at it on the screen. 11 MR. ROBERT KEETCH: Okay. 12 MR. PETER WARDLE: Are you familiar with 13 this document? 14 MR. ROBERT KEETCH: Yes. 15 MR. PETER WARDLE: Lets just get the Tab 16 in the binder. 17 MR. MARK SANDLER: It's Tab 47. 18 COMMISSIONER STEPHEN GOUDGE: Tab -- 19 20 CONTINUED BY MR. PETER WARDLE: 21 MR. PETER WARDLE: Tab 47. 22 23 (BRIEF PAUSE) 24 25 MR. PETER WARDLE: And you'll see it

182

1 recounts a history of the case from the date when the 2 criminal investigation, you know, stopped in November of 3 1997. It sort of brings the investigation up to date 4 based on information you became aware of involving the 5 CAS process, correct? 6 MR. ROBERT KEETCH: Yes. 7 MR. PETER WARDLE: And then going towards 8 the end, this is as a result of looking at the 9 affidavits, including the affidavit of Mary Case, you'll 10 see your conclusion: 11 "The writer is of the opinion that 12 there is no medical evidence from 13 either of the post-mortems which 14 suggest any criminal responsibility on 15 the part of Lianne XXXX in the death. 16 As such, the investigation into the 17 death should be concluded and the file 18 closed." 19 So I took it at -- as this document as 20 being a pretty good sort of marker as to when your 21 personal opinion of the case started to change. 22 MR. ROBERT KEETCH: Yes. 23 COMMISSIONER STEPHEN GOUDGE: It's really 24 alre -- it's already changed by this point. 25 MR. ROBERT KEETCH: Yeah, I hadn't -- I

183

1 only found this when I was reviewing through the files, 2 and like I said, I didn't know a definitive date as I 3 said earlier. 4 But, I mean, in '99 I was concluding or 5 writing a conclusion to my Chief based on all the 6 information that I was getting from -- you know, through 7 the disclosure through CAS and their reciprocal repo -- 8 reporting agreement that I was reviewing some of the 9 independent examination by other experts. 10 And, obviously, in '99 I had made a -- 11 that determination. 12 13 CONTINUED BY MR. PETER WARDLE: 14 MR. PETER WARDLE: So let's just go 15 backwards, if we can, and just thinking about what we had 16 gone through. We -- we've talked as we've gone along, 17 and you -- and you went through this again this morning 18 with My Friend Mr. Sandler about the various pillars and 19 how these pillars started to crumble at various points in 20 time. 21 But it also seems to me, Inspector Keetch, 22 that despite the fact that those pillars were crumbling, 23 you and your colleagues held very firm views, right up 24 until the end of 1997, about what had taken place in this 25 case. And I just want to explore that a little bit with

184

1 you. 2 In other words, first of all, you know, 3 we're all doing a little bit of a retrospective analysis 4 here -- you're going back and looking at things, you have 5 a lot more information in your head -- but at the time it 6 certainly didn't seem to you that Dr. Smith's opinion was 7 on shaky ground, or you wouldn't have been so close to 8 laying charges, correct? 9 MR. ROBERT KEETCH: Correct. 10 MR. PETER WARDLE: Okay. So, can I 11 suggest that there were a number of factors that played a 12 role in that -- first, Dr. Smith's reputation as it was 13 presented to you. 14 In other words, this gentleman was 15 presented to you as a world class forensic pathologist, 16 correct? 17 MR. ROBERT KEETCH: Correct. 18 MR. PETER WARDLE: And you got that 19 information, I'm going to suggest, from Dr. Cairns, 20 correct? 21 MR. ROBERT KEETCH: Probably, yes. 22 MR. PETER WARDLE: And probably, as well, 23 the Regional Coroner? 24 MR. ROBERT KEETCH: I don't know that I 25 had -- Dr. Uzans was, you know, working out of a

185

1 different city, and the contact that I had with Dr. Uzans 2 specific to this investigation -- he was present during 3 the -- the disinterment, he was present during the two 4 (2) case conferences, but whether he provide -- would 5 have provided that information to me, I don't have any 6 spic -- specific recollection of that. 7 MR. PETER WARDLE: And is it fair to say, 8 from Dr. Smith himself? 9 MR. ROBERT KEETCH: Yes. 10 MR. PETER WARDLE: Okay. So somewhere in 11 these meetings Dr. Smith laid it -- let it be known, 12 perhaps in a quite way, that he was the guy, is that 13 fair? 14 MR. ROBERT KEETCH: Yes. 15 MR. PETER WARDLE: Okay. And you didn't 16 know, I take it, that there had been a case in Timmins, 17 Ontario a few years earlier where Dr. Smith had been 18 severely criticized. 19 MR. ROBERT KEETCH: No, the first 20 knowledge I -- I had of that case was as a result of 21 watching the program on the Fifth Estate where -- where 22 they illustrated it. I had no prior knowledge. 23 MR. PETER WARDLE: I take it when you 24 found out about that case you must have been 25 flabbergasted.

186

1 MR. ROBERT KEETCH: Yes. 2 MR. PETER WARDLE: Okay. And is it fair 3 to say that that's one (1) of the issues that the -- this 4 Inquiry should be focussing on; why that kind of 5 information wouldn't have been shared more widely so that 6 you and your colleagues would have had it when you 7 started this fresh investigation in 1997? 8 MR. ROBERT KEETCH: But, I mean, the 9 decision of who's going to do the -- the post-mortem or 10 the second post-mortem is made with the Chief Coroner's 11 Office. I don't know that I would have a lot of input in 12 relation to that. 13 But I would have hoped that the Chief 14 Coroner's Office would have been aware of that 15 controversy relative to that case, and either had 16 potentially reviewed it to see if the criticism was 17 justified, and if it was justified, then, you know, 18 potentially remove Dr. Smith from the practice of 19 allowing him to conduct further autopsies. 20 MR. PETER WARDLE: Is it also fair to say 21 that an important factor in your mind set throughout the 22 whole criminal investigation was the involvement of Dr. 23 Jim Cairns on behalf of the Coroner's Office? 24 MR. ROBERT KEETCH: As I said earlier, 25 him supporting the conclusions of Dr. Smith tended to

187

1 give them weight. Deputy Chief Coroner for the Province 2 of Ontario, you know, unaware of his medical background, 3 just that position alone would lend weight and 4 credibility. And his acknowledging and accepting the 5 findings of Dr. Smith would add weight to that in my 6 mind, yes. 7 MR. PETER WARDLE: And would you have 8 considered the two (2) of them to be independent of each 9 other or working out of the same office? 10 MR. ROBERT KEETCH: I mean, I think 11 working out of different offices. He would be fulfilling 12 a role for the Chief Coroner's Office but, I mean, my 13 understanding was Dr. Smith was working out of the 14 Hospital for Sick Children and Dr. Cairns was working out 15 of the Chief Coroner's Office but was doing pediatric 16 pathology cases for the Chief Coroner's Office. 17 MR. PETER WARDLE: So regardless of -- 18 putting aside the issue of Dr. Smith's qualifications, he 19 wasn't just one (1) person on his own, he had someone who 20 you thought had a level of independence, who was really 21 buttressing his opinion. Correct? 22 MR. ROBERT KEETCH: Correct. 23 MR. PETER WARDLE: And is it fair to say 24 that a third (1/3) factor in your mindset in the police 25 investigation was the fact that they had the science,

188

1 they were the experts and this wasn't your bailiwick? 2 MR. ROBERT KEETCH: Well, it's way out of 3 the realm of my expertise. So when you get in a position 4 that's similar to that then you would, you know, look for 5 an outside expert to give you an opinion and, I mean, 6 you're almost bound by that opinion. 7 MR. PETER WARDLE: And I'm not being 8 critical of you, your notes indicate that you were very 9 hot on the trail and you got very close in terms of 10 identifying some key forensic pathology issues. But, you 11 know, they had the knowledge in this critical area, you 12 didn't. 13 Is that fair? 14 MR. ROBERT KEETCH: That's fair. 15 MR. PETER WARDLE: Okay. Does that not 16 suggest to us, and I'm coming back to your 17 recommendations, that you made this recommendation about 18 -- let me just make sure I've got it. I'm trying to get 19 it word-for-word but I'm not sure I'm going to succeed. 20 You made a recommendation regarding 21 verification, process and autopsy findings; similar to 22 fingerprint verification evidence. 23 And the Commissioner asked you some 24 questions about peer review. And can we agree, first of 25 all, there's a difference between peer review and getting

189

1 a second opinion? 2 MR. ROBERT KEETCH: I'm uncertain. I 3 mean, a verification, I can tell you from my perspective 4 because we did it for an identification. I would get a - 5 - provide the known fingerprint and the unknown 6 fingerprint, which I guess is basically all the 7 information we have, to the -- an officer within the 8 unit, an equally qualified officer or a qualified 9 officer, and ask for -- them for an independent 10 verification of the fingerprint. 11 A peer review would, you know -- it may be 12 just word smithing, I'm -- 13 MR. PETER WARDLE: It could be but peer 14 review could be, you know, having a colleague look over a 15 completed report and critiquing that report. It might 16 involve looking at all the history and the slides and all 17 -- and the photographs and all that kind of information, 18 as opposed to a completely independent opinion where the 19 raw data is just sent to someone and that person gives a 20 completely new opinion. 21 MR. ROBERT KEETCH: Yeah, see I would be 22 -- I mean, from my perspective I'd like to see the -- the 23 latter of the two (2) scenarios you placed there. And I 24 think when you look at the information and the reports 25 that were done by the outside experts that were consulted

190

1 on behalf of the family, and then ultimately on behalf of 2 the Chief Coroner's Office, that's the type of 3 verification I'm looking for rather than somebody within 4 the same office, you know, doing a peer review. 5 I think it needs to be independent and it 6 needs to be an individual that's equally qualified in 7 that area of expertise to do the verification in my mind. 8 MR. PETER WARDLE: So -- because I think 9 we are on the same page. In these -- sort of this small 10 realm of cases where the medical evidence is so critical 11 there's very little, if any, other evidence regarding 12 what took place, you would be most comfortable with some 13 kind of a second opinion mechanism before the decision is 14 made as to whether or not to lay criminal charges. 15 MR. ROBERT KEETCH: Definitely. 16 MR. PETER WARDLE: Is that fair? 17 MR. ROBERT KEETCH: Yeah, I think we -- I 18 don't think we can afford to mistake -- make mistakes in 19 these type of cases. And I don't think they're that 20 common that it's too onerous a task to undertake. 21 MR. PETER WARDLE: Can I just ask you 22 quickly about a couple of other areas before I finish. 23 One (1) is Officer Crone and I just want 24 to follow this up. You know, I think, that during the 25 Athena case, Officer Crone gave some evidence to the

191

1 court about trying to get a written follow-up opinion 2 from Dr. Smith. 3 Are you familiar with that controversy? 4 MR. ROBERT KEETCH: I didn't really 5 follow that case. I don't have personal knowledge. If 6 you told me that were the case then, given the previous 7 experience that I had with Dr. Smith, I could potentially 8 understand that. 9 MR. PETER WARDLE: Okay. I'm just 10 curious as to your involvement, and I want to take you 11 Volume I, Tab 48. And this is PFP027143. And this is an 12 extract from Detective Crone's cross-examination at a 13 voir dire in the Athena proceedings, or I guess we call 14 them the Kporwodu proceedings. 15 And I want to take you to the fourth page. 16 And this is a question that's asked of Detective Crone by 17 the judge, Justice Trafford, the middle of the page. And 18 the context of this, Officer, is that Detective Crone had 19 had a meeting with Dr. Smith about the timing of Athena's 20 inter -- injuries. 21 Dr. Smith had given him certain 22 information verbally, and Detective Crone had asked for a 23 written follow-up report. So if you see the reference 24 here, the judge asks: 25 "You've indicated that in your judgment

192

1 as an experienced homicide investigator 2 it was appropriate for you, in the 3 circumstances of this case, to wait for 4 the written addendum to the post-mortem 5 report before you proceeded with your 6 belief that murder charges were 7 appropriate against both defendants. 8 THE WITNESS: That's correct. 9 Why did you proceed with such caution 10 in this case? 11 A: I was aware of the controversy 12 surrounding some of Dr. Smith's more 13 recent cases and the difficulties that 14 ensued as a result of that. And, in 15 that context, I felt it was prudent to 16 wait for the written addendum." 17 And then the judge asked: 18 "You were aware of that controversy, I 19 take it, as of July of 1999? 20 THE WITNESS: Yes, sir." 21 Do you think that it's possible that you 22 were one (1) of the people, or you may have been the 23 person, to give Detective Crone the information about Dr. 24 Smith that lead him to be so cautious in or about this 25 time period?

193

1 MR. ROBERT KEETCH: I know we had 2 discussions in relation to Nicholas' death and the issues 3 surrounding Dr. Smith and -- and that investigation. I 4 can't specifically recall whether it was pre 1999. But 5 if this is the trial, I know they were asking for 6 information from the investigative file relative to the - 7 - to Nicholas' death. 8 So the discussions that the two (2) of us 9 would have had would have taken place pre 1999, if this 10 is during the trial. 11 MR. PETER WARDLE: Thank you. And -- 12 just -- 13 COMMISSIONER STEPHEN GOUDGE: You're 14 getting close to the end of your time. 15 MR. PETER WARDLE: I am, I am. And I 16 think I'm going to wrap it up right now, sir. Thank you. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 MR. PETER WARDLE: Thank you, Officer. 19 MR. ROBERT KEETCH: You're welcome 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 21 Wardle. Ms. Davies...? 22 23 CROSS-EXAMINATION BY MS. BREESE DAVIES: 24 MS. BREESE DAVIES: Good afternoon, 25 Inspector. My name is Breese Davies, and I'm one (1) of

194

1 the lawyers for the Criminal Lawyers' Association. So 2 I'm going to ask you some questions, but I'm going to 3 start, hopefully, from a premise that I got right from 4 your testimony this morning that you would agree that the 5 recommendation to the protocols in the Major Case 6 Management Binder dealing with the relationship between 7 officers and pathologists really ought to apply any time 8 a police officer is engaged with a pathologist as a po -- 9 at a post-mortem. 10 Is that correct? 11 MR. ROBERT KEETCH: That's correct. 12 MS. BREESE DAVIES: Okay. And if we 13 could just have that brought up, Registrar. It's 14 PFP302516, and it's Tab 45 in your binder. And if you 15 can just keep it open to page 44 and possibly 45. I'm 16 going to have a few questions as we go along, but I'm 17 going to sort of take that as a starting point and see 18 whether or not you might also agree with some additional 19 recommendations. 20 But before we do that, your recommendation 21 that all SIDS and SUDS cases be captured within this 22 manual; I -- I take it you would agree that it -- it has 23 the added benefit in terms of providing disclosure should 24 the case become a criminal case in the sense that it 25 allows for sort of uniform disclosure of the entire

195

1 database within the criminal context. 2 Is that correct? 3 MR. ROBERT KEETCH: We don't -- we don't 4 generally do disclosure from the software. The Power 5 Case is the major case management -- 6 MS. BREESE DAVIES: Right. 7 MR. ROBERT KEETCH: -- software. There 8 is a move afoot within the Province right now to do 9 electronic disclosure, and that's done through an Adobe 10 format. 11 MS. BREESE DAVIES: Okay. 12 MR. ROBERT KEETCH: But the software -- 13 the transfer of the data from Power Case, the software, 14 to the Adobe is very convenient and very efficient. But 15 they are creating electronic briefs outside of Power Case 16 and within the Adobe software. 17 MS. BREESE DAVIES: But having it all 18 organized electronically within the case management 19 system allows for that easy transfer into a disclosable 20 format. 21 You would agree with that? 22 MR. ROBERT KEETCH: Yes. 23 MS. BREESE DAVIES: Okay. Okay, so let 24 me go back then to the issue of -- of your relationship - 25 - or a police officer relationship with pathologists

196

1 doing autopsies. 2 And you'll see in the protocol, subsection 3 B, it says that one (1) of the rules of the major case 4 manager is to ensure that the coroner is advised of known 5 facts of the investigation. And it specifies certain 6 information that should be provided. 7 But my question is: Does that subsection, 8 or does your understanding of that subsection include 9 providing the pathologist with information about the 10 theory of the case from the police perspective, in terms 11 of the theory of how the homicide occurred, and who 12 committed it? 13 MR. ROBERT KEETCH: I mean, I -- you're 14 asking me a difficult question without providing me kind 15 of an -- and example. Generally, we go in -- I'll -- 16 I'll tell you from kind of generic version. 17 MS. BREESE DAVIES: Sure. 18 MR. ROBERT KEETCH: We will go in, 19 obviously identify the deceased, kind of provide them 20 with a brief overview of the scene as we found it. 21 Potentially an overview of how the call came into the 22 police. 23 We now are in -- have the ability to 24 provide digital images. We'll bring a laptop in with 25 photographs from the scene so the pathologist can

197

1 potentially review those as well. 2 As well as we'll potentially identify 3 and/or may bring physical evidence to the autopsy. I 4 mean, if we have what we believe to be a ner -- murder 5 weapon, we may bring that murder weapon to the -- have an 6 examination of the wor -- murder weapon and see if it's 7 potentially similar or consistent with say a wound found 8 on the deceased. 9 MS. BREESE DAVIES: Okay. 10 MR. ROBERT KEETCH: I don't know if that 11 answers your question? 12 MS. BREESE DAVIES: It does. And -- and 13 maybe I'll just give you one (1) other example of what I 14 was thinking about in terms of the theory. And -- and 15 that's what I meant, sort of, if you had an idea about 16 what the murder weapon would be, or if you had an idea 17 about who the perpetrator might be, you would share that 18 information with the pathologist. 19 Is that fair? 20 MR. ROBERT KEETCH: That's fair. 21 MS. BREESE DAVIES: And I take it that 22 your theory would be, the more information you can 23 provide, the better, to the pathologist? 24 MR. ROBERT KEETCH: Yes, I'd agree with 25 that.

198

1 MS. BREESE DAVIES: And you would leave 2 it to the pathologist to filter out, so to speak, and 3 information they thought was not relevant to their 4 evaluation? 5 MR. ROBERT KEETCH: Correct. 6 MS. BREESE DAVIES: Okay. Now, lets do - 7 - so now you're at the post-mortem examination itself, 8 and I take it, based on reading this protocol in the 9 major case management manual, the police officer is not 10 just an observer in the pathologist. 11 They have a specific role to play during 12 the autopsy itself? 13 MR. ROBERT KEETCH: Yeah, depending on 14 which police officer we're describing. I mean, obviously 15 the forensic identification officer would have the role 16 of seizing and receiving exhibits for submission to the 17 lab and stuff. 18 MS. BREESE DAVIES: Right. And the 19 investigating officer or the major case manager, as 20 described in -- in the manual, has a role in consulting 21 with the pathologist about what specific samples to 22 collect during the autopsy itself, correct? 23 MR. ROBERT KEETCH: Yeah, we have given - 24 - you know, we have discussions relative to what we feel 25 -- what samples we potentially feel are warranted based

199

1 on, you know, the scene examination or the information 2 that we have at that -- that point in time. 3 MS. BREESE DAVIES: Okay. And in turn -- 4 you, then, collect any samples that are obtained that 5 need to be submitted for forensic testing, correct -- 6 either you or the identification officer? 7 MR. ROBERT KEETCH: Correct. 8 MS. BREESE DAVIES: And you said that you 9 generally submit them to the Northern Forensic Laboratory 10 up in -- it's Sault Ste Marie, from your police service? 11 MR. ROBERT KEETCH: Correct. 12 MS. BREESE DAVIES: And I have just a 13 couple of questions about the turn around time from the 14 laboratory. We know from the Nicholas case that you 15 received some samples from within one (1) month and some 16 samples within a two (2) month period. 17 My question is: Is that a typical 18 turnaround time for that laboratory? 19 MR. ROBERT KEETCH: I would suggest that 20 it could be a little more delayed, but you have the 21 ability to request a prioritized testing. I had a 22 working relationship, obviously, being a previous 23 forensic identification officer. I was aware of people 24 that were working at the lab and/or the person 25 responsible for the lab, and have on occasion, when I saw

200

1 a need to prioritize testing, made a personal phone call 2 and requested that, and generally that has been 3 facilitated after you articulate the reasoning behind 4 that prioritised testing. 5 MS. BREESE DAVIES: Okay, so -- so 6 generally speaking, if I understand it, one (1) to two 7 (2) months was relatively short; you might expe -- in 8 fact, expect it to take a little bit longer than that. 9 MR. ROBERT KEETCH: That's my previous 10 experience, yes. 11 MS. BREESE DAVIES: Okay. And in terms 12 of the -- your experience, was only one (1) set of 13 photographs taken during the autopsy by the forensic 14 identification officer, or would the pathologist have 15 other photographs taken that they wanted done? 16 MR. ROBERT KEETCH: The forensic 17 pathologist would request the photographs be taken by the 18 forensic identification officer. So whatever -- we would 19 do overall photographs on our behalf, and then any 20 specific photograph that he wanted taken, we would take 21 on his behalf. 22 MS. BREESE DAVIES: Okay. And if you can 23 look at subsection F of this manual; it says again: 24 "The major case manager is to ensure 25 that the coroner and pathologist are

201

1 advised of any requested post-mortem 2 examinations." 3 Do I take that to mean that the -- there 4 is a role for police officers, based on this protocol, to 5 advise the pathologist of particular forensic issues that 6 you want, sort of, analysed or considered in the post- 7 mortem examination itself? 8 MR. ROBERT KEETCH: Yes. I mean we would 9 -- I can provide you a very quick example of that. If we 10 have, say, fibre evidence that we want to potentially be 11 removed from the deceased prior to the post-mortem taking 12 place, then we would make a request for an examination 13 for various fibres, which would be facilitated by the 14 pathologists. And we'd do an examination and remove the 15 fibres prior to the autopsy or, say, a gunshot residue 16 kit to be done on the hands of the deceased and 17 fingernail scrapings. 18 There is numerous times when we would make 19 a specific request based on the investigative information 20 that we have from the scene prior to going to the post- 21 mortem. 22 MS. BREESE DAVIES: One (1) more 23 question, which is specifically on the protocol. 24 Subsection D says: 25 "In the event that a dispute between

202

1 the major case manager and the 2 attending coroner and/or pathologist 3 cannot be resolved, the Office of the 4 Regional Coroner and, if necessary, the 5 Officer -- Office of the Chief Coroner 6 shall be contacted to facilitate a 7 resolution." 8 What sorts of disputes does that 9 provision, sort of, speak to? Is that about how the 10 autopsy is going to be conducted itself or about disputes 11 later on between the forensic opinion and the -- and the 12 investigative findings? 13 MR. ROBERT KEETCH: I can only speak from 14 personal experience. I've only used that -- you know, 15 invoked that clause -- not really invoked that clause, 16 but there was one (1) particular homicide that we were 17 investigating and there was difficulty in a -- with a 18 pathologist making a final determination in relation to 19 cause of death. 20 And there was a case conference done where 21 we attended forensic pathology through the Chief 22 Coroner's Office, had a discussion with an independent 23 forensic pathologist who -- who had discussions with the 24 actual pathologist that had done the post-mortem. And as 25 -- as a result of those discussions between those

203

1 parties, a final cause of death was determined. 2 MS. BREESE DAVIES: Okay, so that's 3 really -- that deals bo -- does deal with substantive 4 disputes about cause of the death and the, you know, 5 forensic analysis. If the -- if there was any dispute, 6 it can be -- it can go -- you could go to the Office of 7 the Chief Coroner for assistance. 8 MR. ROBERT KEETCH: That's correct. 9 MS. BREESE DAVIES: Okay. Now, the 10 protocol obviously requires the police to collect certain 11 information during the post-mortem examination, which is 12 specified. 13 Is there a practice or would you support a 14 recommendation that the police show the pathologist the 15 notes that they -- that they take to ensure that they are 16 accurate? 17 MR. ROBERT KEETCH: As I said earlier, 18 we're not -- I don't think we're capturing a lot of 19 information relative to the autopsy right now; date, 20 autopsy number, deceased, who's present, the time it 21 commences, the time it concludes, any of the samples that 22 we're seizing or retaining on behalf of the pathologist 23 would be recorded to ensure continuity. 24 And then I'm going to suggest that all we 25 would be doing at the end would be -- oh, potentially the

204

1 clothing that the deceased was wearing -- and then final 2 verbal cause of death, if one in known at that point in 3 time. 4 MS. BREESE DAVIES: And -- 5 MR. ROBERT KEETCH: That's basically the 6 information that we're capturing, and I think it's 7 because we don't -- as I said earlier, we don't want a 8 potential discrepancy between what is being noted and 9 indicated by that pathologist, who has the, you know, 10 medical expertise to interpret that information and/or 11 identify it, and a police officer. 12 MS. BREESE DAVIES: And so you would 13 expect that the police officer would essentially take 14 down verbatim what the pathologist said about the 15 preliminary cause of death at the end? 16 MR. ROBERT KEETCH: Yes. I mean, we 17 obviously -- that's one (1) thing that's kind of a key in 18 the investigation, and we're looking for a determination, 19 if there is one, at the conclusion of the autopsy. It 20 may -- there may not be -- 21 MS. BREESE DAVIES: Right. 22 MR. ROBERT KEETCH: -- a determination 23 made; there may be. 24 MS. BREESE DAVIES: And in -- 25 COMMISSIONER STEPHEN GOUDGE: Can I just

205

1 ask a couple of questions, Ms. Davies, about that point 2 in the investigation, Inspector? 3 Did the police, at the autopsy, ever have 4 a discussion with the pathologist about the certainty 5 with which the pathologist holds the preliminary view or 6 do you accept... 7 That is, suppose you are given a cause of 8 death and it's asserted in the language of every day 9 conversation -- that is, without qualification. 10 Do you ever engage the pathologist in a 11 discussion of whether that is a tentatively held view or 12 a firmly held view or anything like that? 13 Or do you just assume that if it is stated 14 as a conclusion, unqualified, that it is a firmly held 15 view and proceed with your investigation on that basis? 16 MR. ROBERT KEETCH: Yeah, we would -- if 17 he's providing the opinion, I would suggest that that's a 18 firmly held view that may -- 19 COMMISSIONER STEPHEN GOUDGE: You would 20 take it as a firmly held view unless he chose to qualify 21 it? 22 MR. ROBERT KEETCH: Yes, and/or change 23 it, pending, you know, further testing, toxicology, or 24 further examination of any of the samples that were 25 seized.

206

1 But if he's given us an opinion, I think 2 it's a firm opinion at that point in time, and that's the 3 way we interpret it. 4 COMMISSIONER STEPHEN GOUDGE: And that is 5 the way you would conduct yourselves on the basis of it? 6 MR. ROBERT KEETCH: Yes. 7 8 CONTINUED BY MS. BREESE DAVIES: 9 MS. BREESE DAVIES: Do the pathologists, 10 at the end of the autopsy, ever provide advice about how 11 you should go about conducting your further 12 investigation? 13 Let me give you some examples just so you 14 know what I'm -- what questions you might ask a suspect, 15 what evidence you might look for at a house if it's a 16 death in a home, what evidence you might look for or they 17 might want information about from the scene. 18 Do they provide you with those sorts of 19 questions at the end of the autopsy? 20 MR. ROBERT KEETCH: Not specific 21 questions, especially specific questions to ask an 22 accused or suspect. 23 Because, you know, as we're begging to 24 their expertise relative to medical findings, they tend 25 to beg to our expertise --

207

1 MS. BREESE DAVIES: Sure. 2 MR. ROBERT KEETCH: -- relative to the 3 status in the investigation. 4 I can give you an example. Maybe if we 5 went to an autopsy of a shooting victim and we found, 6 say, wadding from a shotgun shell that wasn't evident at 7 the scene but was indicative of the -- the deceased being 8 shot with a shotgun. They may say, you need to 9 potentially go back and look at the scene and see, you 10 know, can you identify a shotgun and can you locate a -- 11 a spent shotgun casing, which would be kind of consistent 12 with the medical findings or the -- 13 MS. BREESE DAVIES: Right. 14 MR. ROBERT KEETCH: -- evidence that 15 they're finding at the post-mortem. That's kind of an 16 example I can provide you. 17 MS. BREESE DAVIES: Okay. 18 MR. ROBERT KEETCH: Generally, they're 19 not dictating specifics relative to the investigation. 20 MS. BREESE DAVIES: Right. But would you 21 keep notes of those sort of suggestions or comments that 22 they make at the end of the post-mortem examination 23 or...? 24 MR. ROBERT KEETCH: Past pra -- my past 25 practice would be no, I would not --

208

1 MS. BREESE DAVIES: Okay. 2 MR. ROBERT KEETCH: -- make notes of 3 that. 4 MS. BREESE DAVIES: And I take it you 5 would support a recommendation, though, would you, that 6 police officers keep track of, in a written format 7 somehow, the information they provide to the pathologist 8 during their discussions before the autopsy and 9 information they receive from the pathologist at the end 10 of the autopsy? 11 MR. ROBERT KEETCH: I would think there 12 would be great difficulty in capturing that information. 13 I mean, I can tell you the problem that we would have 14 relative to that. 15 A lot of the times when -- let's say the 16 homicide occurs at 11:00 at night and we go and attend 17 the scene, the deceased is removed, there's an autopsy 18 scheduled the following morning. 19 A lot of the information relative to that 20 investigation will not be in a written format, so we give 21 it verbally. So there would be the difficult of 22 capturing what was provided verbally to the pathologist. 23 MS. BREESE DAVIES: Could -- could you 24 not just make a note in your notebook of the points that 25 were discussed with the pathologist?

209

1 I'm not suggesting it needs to be a formal 2 written report, but just that there's a record kept of 3 what information was provided, even if it's just a 4 notebook entry. 5 MR. ROBERT KEETCH: It could possibly. 6 That could -- yeah. 7 MS. BREESE DAVIES: Okay. Let me talk 8 about, then, after you've received the post-mortem 9 examination. And I'm -- I'm particularly interested in, 10 sort of, issues that come out after you get the post- 11 mortem examination -- or post-mortem report. Because 12 we've heard evidence at that the post-mortem report 13 generally only details the cause of death. 14 And you'll agree with me that in many 15 cases there are other forensic issues that are relevant 16 to your investigations such as the timing of injuries or 17 the timing of death or the mechanism of death or the type 18 of force that might be needed to inflict a particular 19 injury, and those generally, in your experience, are not 20 captured in a post mortem report, correct? 21 MR. ROBERT KEETCH: Correct. 22 MS. BREESE DAVIES: And so if you know 23 that those issues are relevant to your investigation, I 24 take it you communicate that to the pathologist as early 25 as you can, correct?

210

1 MR. ROBERT KEETCH: Correct. 2 MS. BREESE DAVIES: And do -- in past 3 practice, would you do that in writing? 4 MR. ROBERT KEETCH: No. 5 MS. BREESE DAVIES: So you -- 6 MR. ROBERT KEETCH: I mean -- I mean I 7 can speak to this specific case because we're talking 8 about blunt force trauma to the head. There was some 9 discussion about the bumping of the head under the sewing 10 machine and/or potentially a fall resulting in the 11 injuries that we're potentially perceived here to have 12 caused Nicholas' death. 13 And I can tell you that there was 14 discussions with Dr. Smith in relation to that and, I 15 mean, he provided us, basically, with the description 16 that a child would have to fall three (3) stories and 17 land on his head on a solid concrete or similar surface 18 to -- to have indica -- you know, have a cause of death 19 similar to this. That is wasn't an accidental injury 20 that potentially resulted in his death. 21 So those discussions definitely took 22 place. I have a recollection of them, but were they 23 captured in my notes? They were not. 24 MS. BREESE DAVIES: And you didn't seek a 25 supplementary report from Dr. Smith to detail those

211

1 discussions? 2 MR. ROBERT KEETCH: No, I did not. 3 MS. BREESE DAVIES: Okay. I take it you 4 can see some benefit, in hindsight, of getting those 5 sorts of comments and conversations in some written 6 format? 7 MR. ROBERT KEETCH: Yes. 8 MS. BREESE DAVIES: Okay. It -- 9 MR. ROBERT KEETCH: Now, I would 10 anticipate that that -- I mean those kind of discussions 11 would be -- you would anticipate would be part of his 12 testimony at trial, because I -- you know, if not raised 13 by the Crown, I would certainly anticipate that line of 14 questioning coming from the defence, as well. 15 But no, I did not think to ask -- you 16 know, I thought to ask them, but not to capture it in a 17 written format. 18 MS. BREESE DAVIES: And just you -- we've 19 heard testimony about sort of when you became aware of 20 some of the problems with Dr. Smith or started to have 21 questions about Dr. Smith and, I take it, it might be as 22 early as May of 1997 wherein he refused to or didn't sort 23 of recognize the medical evidence about the circumference 24 of Nicholas's head Certainly, by April of '99, you 25 started to have some concerns.

212

1 And my question is: Did you have 2 discussions with the Crown about your concerns about Dr. 3 Smith as an expert witness? 4 MR. ROBERT KEETCH: I believe we did, 5 yes. 6 MS. BREESE DAVIES: And so I take it you 7 would agree with me that you basically had an obligation 8 to disclose to the Crown your concerns about Dr. Smith. 9 MR. ROBERT KEETCH: I -- I don't know if 10 the -- I mean we -- obviously, we had discussions 11 surrounding that statement that proceeded his conclusion 12 in the cause of death. Did we have discussions around 13 that time with regard to his expertise? Still, at that 14 point in time when we were doing this investigation, he 15 was still perceived as one (1) of the leading experts in 16 Ontario, if not Canada, relative to these type of 17 investigations. 18 MS. BREESE DAVIES: Sure. 19 MR. ROBERT KEETCH: I mean, I've 20 subsequently had discussions with Assistant Crown 21 Attorney -- or now Judge Rogers (phonetic) in relation to 22 those findings and Dr. Smith. But I -- I don't know that 23 they took place, you know, us questioning his expertise 24 when he was providing us the written opinions, because, 25 as I stated, he was -- you know, we perceived hi --

213

1 perceived him as a leading expert within Canada in 2 relation to these type of investigations. 3 MS. BREESE DAVIES: Let me take it 4 outside the context of Dr. Smith. Would you agree with 5 me that as a police officer, if you came into possession 6 of information that made you question the credibility, 7 the reliability, the professionalism of an individual who 8 was being used as an expert witness in a case that you 9 were involved in or co -- your colleagues were involved 10 in, that you have an obligation to disclose that 11 information to Crown counsel who might be involved in the 12 case? 13 MR. ROBERT KEETCH: Potentially, yes. 14 Again, without -- like I'm kind of finding it hard to an 15 -- answer that question. Like, let's take, for example, 16 Matt Crone's case. 17 MS. BREESE DAVIES: Right. 18 MR. ROBERT KEETCH: Obviously we were 19 having discussions relative to his ex -- potential 20 expertise and the use him dur -- throughout that case, 21 yet I chose not to take anything further. Are you 22 suggesting there's an obligation on my part to go to the 23 Crown in relation to that case and voice that opinion? 24 MS. BREESE DAVIES: But -- that was my 25 next question, so I was actually going to sort of shift -

214

1 - I was -- my first question was more in relation to 2 cases that you are involved in. 3 If you come into possession of 4 information, you or your colleagues investigating the 5 same case, come into information that make you question 6 an expert in your cases, you have an obligation to speak 7 to your Crown about that -- that -- 8 MR. ROBERT KEETCH: Yes. 9 MS. BREESE DAVIES: Okay. Now, let me 10 take a step back. When you have information -- same 11 information -- in respect of an expert, would you agree 12 with me that it would be useful to share it with your 13 other police colleagues around the province like you did 14 with Detective Crone? 15 MR. ROBERT KEETCH: Yes. 16 MS. BREESE DAVIES: Is there a mechanism 17 currently that exists, because I don't know of one, so 18 sort of honest question -- is there a mechanism that 19 would allow you to communicate that type of information - 20 - if you had information, sort of, that was relevant to 21 the credibility or -- or usefulness with -- I don't want 22 to get into legal language -- of a particular expert. 23 Is there a mechanism for you to 24 communicate that quickly and effectively to all of the 25 police forces in Ontario that you know of?

215

1 MR. ROBERT KEETCH: No, not that I'm 2 aware of. 3 MS. BREESE DAVIES: But you agree with me 4 that the infor -- that information, as we've seen in the 5 Athena case, can alter the manner is which you conduct an 6 investigation? You may be more cautious. You may get 7 more things in writing. You agree with that? 8 MR. ROBERT KEETCH: Yes. 9 MS. BREESE DAVIES: And so is it your 10 view that the easiest way for that information to be 11 widely disseminated is through the Crown Attorney's 12 associ -- the Crown Attorney system? 13 MR. ROBERT KEETCH: Or if the Chief 14 Coroner's Office would have a -- you know there's kind of 15 a registry of recognized experts -- 16 MS. BREESE DAVIES: Right. 17 MR. ROBERT KEETCH: -- and -- and their 18 area of expertise, and if we, as police agencies, 19 contacted them and -- and utilizes the services of the 20 people they were recommending. But I mean, I don't -- I 21 don't know how I could have gone forward with that 22 information. 23 Again, it's -- I mean, I'm sitting here as 24 a lowly police officer questioning the credentials or 25 expertise of, you know, a world-renowned expert. That --

216

1 that's not the easiest thing to go for -- or it wouldn't 2 be the easiest thing to go forward with. 3 And I don't know how to -- you know, let's 4 say I'd taken the step and -- and found out who Detective 5 Crone's Crown Attorney was and -- and made that call, I 6 don't know how that would have been received. 7 MS. BREESE DAVIES: Right. So there's an 8 issue about who the right person is, and from your 9 perspective the right person to disseminate information, 10 evaluate information about experts is either the Crown's 11 or the Coroner's Office? 12 MR. ROBERT KEETCH: That's a fair 13 statement. 14 MS. BREESE DAVIES: And you're confident 15 that if those two (2) organizations had the information, 16 you would get it when necessary -- 17 MR. ROBERT KEETCH: Yes. 18 MS. BREESE DAVIES: -- as the police? 19 Thank -- thank you. Those are all of my questions. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 21 Davies. This may be too obscure a question to ask you to 22 comment on, Inspector, but as a result of the second 23 post-mortem, Dr. Smith concludes that blunt force trauma 24 is the cause of death, and that in the absence of 25 credible explanation, it is non-accidental.

217

1 Taking yourself back the twelve (12) years 2 or whatever it is to that time frame, did you ever look 3 at those two (2) conclusions separately in distinction? 4 What I am getting at is this. One, we've 5 had some witnesses say to us that the non-accidental 6 designation in a circumstance like that pushes the outer 7 limits of the pathologist's expertise. Obviously, 8 neither conclusion here seems to have had pathological 9 evidence to support it. 10 But the conclusion of accidental/non- 11 accidental, is that something that, up to that point, you 12 had seen commonly from pathologists in death 13 investigations? 14 Did it strike you as, in any way, raising 15 something that went beyond the pathologist's expertise or 16 did you just treat it like another aspect of the 17 pathologist's professional confidence? 18 MR. ROBERT KEETCH: I think it was out of 19 the ordinary to, kind of, get both sides of the coin. 20 Generally, when we're getting a cause of death from the 21 pathologist it is -- let's say it's asphyxia -- 22 COMMISSIONER STEPHEN GOUDGE: Blunt force 23 trauma. 24 MR. ROBERT KEETCH: -- or blunt force 25 trauma, or gunshot, or -- you know, it's definitive.

218

1 It's not -- to me, this was almost you been being 2 presented both sides to the coin. It's blunt -- non- 3 accidental blunt force trauma, and then on the other 4 side, Well, it could be accidental. 5 I know we had discussions relative to that 6 and part of those discussions were kind of the -- 7 Nicholas' last twenty-four (24) hours and -- and where 8 they were spent and, you know, an overview of the 9 residence and -- and could there have been a fall that 10 had taken place at the residence that could have resulted 11 in accidental blunt force trauma that would have -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. ROBERT KEETCH: -- you know, shown 14 the same indications. And there -- 15 COMMISSIONER STEPHEN GOUDGE: The same 16 pathology. 17 MR. ROBERT KEETCH: -- you know, we kind 18 of gave them an overview of the -- the scene and -- and 19 such to Dr. Smith, and as I said, he basically eliminated 20 that saying that, you know, with the scene and with what 21 we had accounted for Nicholas' whereabouts, and what he 22 had -- had taken place that preceding 24 hours, there was 23 no -- you know, the potential for non-accidental blunt 24 force trauma had been basically eliminated. 25 COMMISSIONER STEPHEN GOUDGE: Dr. Smith

219

1 was saying that, but also your own investigation 2 concluded that? 3 MR. ROBERT KEETCH: Well, there was no 4 indication of it -- you know, other than the standing up 5 and bumping his head -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MR. ROBERT KEETCH: -- under the sewing 8 machine -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. ROBERT KEETCH: -- table, there was 11 no indication of a head injury during that, kind of, 12 twenty-four (24) hours. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. ROBERT KEETCH: There was some 15 indication of previous falls and previous head injuries 16 before that, but they didn't -- Dr. Smith didn't feel 17 that you -- the -- the -- 18 COMMISSIONER STEPHEN GOUDGE: That they 19 would explain -- 20 MR. ROBERT KEETCH: -- symptoms that were 21 present -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 MR. ROBERT KEETCH: -- during the 24 autopsies would not -- could not be explained by those 25 previous falls.

220

1 COMMISSIONER STEPHEN GOUDGE: Yes. I 2 guess what I'm getting at, Inspector, is whether another 3 little dimension of any education program engaged in by 4 the Police College for pediatric death investigation 5 might include a discussion of the proper limits of the 6 expertise of various experts, including the pathologist? 7 MR. ROBERT KEETCH: That would be fair. 8 COMMISSIONER STEPHEN GOUDGE: Does that 9 seem like something that would be useful to the 10 investigating officers to, at least, have a sense of how 11 far the range of expertise would go for proper opinions, 12 and what might go beyond the expertise? 13 MR. ROBERT KEETCH: Yes. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 Thanks. Ms. Craig...? 16 MS. ALISON CRAIG: No questions, thank 17 you, Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Then over 19 to AIDWIC, I guess. 20 21 CROSS-EXAMINATION BY MS. VANORA SIMPSON: 22 MS. VANORA SIMPSON: Thank you, 23 Commissioner. Good afternoon, Inspector. 24 MR. ROBERT KEETCH: Good afternoon. 25 MS. VANORA SIMPSON: My questions are

221

1 going to focus on the narrow area of communications 2 between investigating officers and pathologists. And I'd 3 like to start -- I guess you'd agree with me that what 4 the police learn from the pathologist at the time of the 5 autopsy may influence the police investigation in 6 important ways? 7 It may influence what investigatory -- 8 investigative avenues you pursue? 9 MR. ROBERT KEETCH: Correct. 10 MS. VANORA SIMPSON: We heard from one 11 (1) of our international panel of forensic pathologists, 12 that it is his practice to always provide the initial 13 preliminary findings from the autopsy in a written form 14 to the officers that attend. 15 It was his view that it avoided potential 16 misunderstandings and disputes about what may have been 17 said or not said. We've heard today that precise wording 18 can make a very important difference in a case. 19 Would you think it helpful, from the 20 police perspective, to get those preliminary findings in 21 written form from the pathologist? 22 MR. ROBERT KEETCH: Generally, we're 23 getting them verbally, and I know the identification 24 officers are very precise in the manner in which we 25 capture that information so that there's no ambiguity;

222

1 that we're certain as to what he is giving us in a 2 preliminary cause of death. 3 Would it -- I'm going to say in probably 4 nine hundred and ninety-nine (999) out of a thousand 5 (1,000) cases, is it going to make a difference whether 6 it's given verbally or given in writing, no. 7 But potentially that one (1) out of a 8 thousand (1,000) cases, there may be a need for the 9 written one at the time of the conclusion of the post- 10 mortem. Again, I don't know how pathologists would view 11 that, whether they -- you know, if they're giving it in 12 writing as opposed to giving it verbally, if they're 13 going to be less likely to provide you that at the time, 14 that's something -- you know, that's discussion that 15 would have to take place with pathologists. 16 But do I see -- you know, do I see a down 17 side to getting it in writing at the time that the first 18 autopsy, or the initial autopsy is done, no, I don't. 19 COMMISSIONER STEPHEN GOUDGE: If it is 20 timely, it is just fine to get it in writing? 21 MR. ROBERT KEETCH: Yes. 22 COMMISSIONER STEPHEN GOUDGE: I take your 23 concern to be one of timeliness? 24 MR. ROBERT KEETCH: Yes. 25

223

1 CONTINUED BY MS. VANORA SIMPSON: 2 MS. VANORA SIMPSON: So if it was a brief 3 report that could be provided to you with the same 4 efficiency as the pathologist meeting with you in a 5 conference room as soon as the autopsy is done, that 6 might be of assistance in avoiding disputes or 7 misunderstandings? 8 MR. ROBERT KEETCH: Yeah, but I -- again, 9 I reiterate to one of my recommendations that we get 10 timely -- access to timely autopsy reports, because the 11 late autopsy reports potentially delay the investigation 12 and/or investigative steps. 13 So I still think there's a need to -- you 14 know -- you know, to get an autopsy report from August -- 15 from an autopsy in November, I -- I take issue with that. 16 MS. VANORA SIMPSON: And I guess what I'm 17 focussing on is those preliminary findings. 18 MR. ROBERT KEETCH: Okay. 19 MS. VANORA SIMPSON: Yes, I understand 20 that we -- we all want autopsy reports to come in 21 speedily. So that's the first half of the equation, the 22 feedback from the pathologist to the police. The other 23 half of the equation -- and my colleague, Ms. Davies, 24 started with this, it's the information that the police 25 provide to the pathologist before the autopsy.

224

1 And again, I think you'd agree with me 2 that providing that information may have some youth -- 3 use to the pathologist, may influence them in choices 4 that they make? 5 MR. ROBERT KEETCH: Correct. 6 MS. VANORA SIMPSON: Now, if I heard your 7 evidence accurately this morning, and correct me if I'm 8 wrong, it was that it is not unusual that, in your 9 experience, pathologists write down nothing in those 10 meetings? 11 MR. ROBERT KEETCH: Relative to that 12 conversation? I don't -- you know, they do notes 13 relative to the physical autopsy, but the discussions 14 that we have, I would suggest they're not capturing that 15 -- a lot of that information. 16 That's more background information, and 17 they're using that relative to making the determination 18 of various testing that they may do relative to the 19 autopsy. 20 MS. VANORA SIMPSON: But when you're 21 sitting in the conference room before the autopsy starts 22 or wherever you are -- 23 MR. ROBERT KEETCH: Yeah, in the autopsy 24 room, generally, before the autopsy starts. 25 MS. VANORA SIMPSON: -- you don't see

225

1 pathologists typically making notes of the information 2 you're providing them? 3 MR. ROBERT KEETCH: That's correct. 4 MS. VANORA SIMPSON: And I understood 5 that sometimes police are able to provide a occurrence 6 reports if they have them or supplementary reports in 7 writing, more often it's verbal? 8 MR. ROBERT KEETCH: We will bring them -- 9 and again, it depends on -- I mean, we go to a lot of 10 sudden deaths. A lot of sudden deaths that aren't 11 suspicious, are we going to provide the same level of 12 information relative to that to the pathologist that we 13 would, say, to an incident that we know -- is a known 14 homicide? I'm going to suggest for the homicide we're 15 bringing more information and we're providing more 16 information. 17 There's a lot of sudden deaths that, you 18 know -- at least, on initial cursory examination by 19 police -- do not appear suspicious in nature, yet we 20 still attend those autopsies to assist the pathologist. 21 And we wouldn't provi -- you know, we may not provide all 22 the written documentation that we do -- would do for a 23 homicide. 24 MS. VANORA SIMPSON: Now, I understood in 25 response to Ms. Davies' question you said there's no

226

1 reason why you couldn't make, at least, a notebook entry 2 of what information you provide. Then it's written 3 somewhere? 4 MR. ROBERT KEETCH: Do I see value in 5 that? Yes. 6 MS. VANORA SIMPSON: And -- 7 MR. ROBERT KEETCH: And I use this as an 8 example. I'm trying to take my recollection back twelve 9 (12) years and that's difficult, so if it's captured in 10 notes it tends to refresh your memory and bring back the 11 conversations. 12 MS. VANORA SIMPSON: And we've seen, for 13 example, the utility of your May 7th note of the 14 documents that you provided to Dr. Smith? 15 MR. ROBERT KEETCH: Yes. 16 MS. VANORA SIMPSON: And I thought I 17 heard your evidence earlier that, in hindsight, you 18 should have captured minutes or briefing notes from those 19 meetings with Dr. Smith through '97. And it's one (1) of 20 your, sort of, -- if you could -- 21 MR. ROBERT KEETCH: If you would do it 22 differently, yes, I would be capturing minutes of those 23 meetings. 24 MS. VANORA SIMPSON: So would you agree 25 with a recommendation then that not only communications

227

1 with the pathologist before the autopsy, but ongoing 2 communications between the pathologist and the police 3 should be memorialized in some fashion -- what you wished 4 you'd done in this case? 5 MR. ROBERT KEETCH: Well, I can see -- 6 you know, I see some of the benefit of the -- you know, 7 some of the conversations I had with Dr. Smith, the 8 content of those being captured. 9 The problem is that potentially becomes a 10 double-edge sword because things become subject to 11 disclosure and a lot of the stuff we're having is, kind 12 of, investigative discussions and -- and, as you know was 13 brought forward earlier, may be theories in relation to, 14 you know, what we're looking at. 15 And do we always want to put our theories 16 forward, you know, in a written format for defence to 17 examine? I don't know that that's always in our best 18 interest. I mean, there are investigative theories that 19 we have that sometimes, you know, aren't captured. 20 MS. VANORA SIMPSON: As defence counsel, 21 most of the time, although not today, can you see some 22 value in having that information available to either 23 defence counsel or a defence expert in assessing how the 24 pathologist may have generated some of the conclusions? 25 Precisely that double-edge sword may be

228

1 what I'm looking for. 2 MR. ROBERT KEETCH: But again, we need to 3 have the abilities as investigators to have investigative 4 discussions amongst ourselves, and hash out various 5 scenarios and I don't -- I don't know that I can answer 6 that question. 7 I can certainly see the defence 8 perspective in relation to wanting access to that, but I 9 can also potentially see the police perspective, in a 10 sense, that we don't want to -- every theory that we 11 have, we don't want to potentially provide that to -- to 12 the defence. I mean -- 13 MS. VANORA SIMPSON: And I guess I should 14 clarify, this is about conversations with the pathologist 15 not -- 16 MR. ROBERT KEETCH: Pathologist. 17 MS. VANORA SIMPSON: -- internal batting 18 around ideas inside the department. But when you're 19 communicating with your expert that later may be 20 providing a report or testifying, do those comments still 21 -- still apply, that you'd be concerned about having 22 disclosure follow? 23 MR. ROBERT KEETCH: I mean, I guess if I 24 used this case as the example, do I see value in 25 capturing those discussions, I certainly do.

229

1 MS. VANORA SIMPSON: Thank you, sir. 2 Those -- 3 MR. ROBERT KEETCH: That's probably a 4 fair statement. 5 MS. VANORA SIMPSON: Those are my 6 questions. Thank you, Commissioner. 7 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 8 Simpson. HSC, Ms. Crawford...? 9 MS. KATE CRAWFORD: I have no questions, 10 Commissioner. 11 COMMISSIONER STEPHEN GOUDGE: Okay, Ms. 12 Ritacca, do you want to start or do you want to take a 13 break? How long are you going to be? You have got 14 twenty-five (25) minutes, by my count. 15 MS. LUISA RITACCA: I'm going to be about 16 twenty (20) or twenty-five (25) minutes. 17 COMMISSIONER STEPHEN GOUDGE: Do you want 18 to -- 19 MS. LUISA RITACCA: Do you want me to 20 start now? 21 COMMISSIONER STEPHEN GOUDGE: Why don't 22 you start now and we will go for five (5) minutes or ten 23 (10) minutes and find a place to break and then come back 24 for the second half. 25

230

1 CROSS-EXAMINATION BY MS. LUISA RITACCA: 2 MS. LUISA RITACCA: Good afternoon, 3 Inspector Keetch. My name is Luisa Ritacca and I'm one 4 (1) of the lawyers for the Office of the Chief Coroner. 5 Inspector Keetch, could I ask you to turn up Tab 4 of 6 your brief of documents, and that's at PFP099320? 7 And Inspector Keetch, this is called a 8 case history in my -- in my index, and I understand that 9 you prepared this. 10 MR. ROBERT KEETCH: Yes. 11 MS. LUISA RITACCA: And when did you 12 prepare this document? I couldn't find a date; it's not 13 a trick question. 14 MR. ROBERT KEETCH: No, I -- there were 15 two (2) case -- histories prepared, one (1) that was at 16 the -- part of the disinterment brief that I prepared for 17 the Attorney General's Office, and then there was a case 18 history that was prepared in relation to the disclosure 19 to the Assistant Crown Attorney and potential Crown brief 20 that was prepared relative to the investigation. 21 The -- they -- I think the second document 22 kind of flowed out of the first document, case history 23 that was present for the -- or within the disinterment 24 brief. 25 MS. LUISA RITACCA: Okay. If I can

231

1 assist you at all, this case history postdates the 2 disinterment, so there's other events in here after -- 3 MR. ROBERT KEETCH: Yeah, that's what -- 4 I'm tending to believe that this is the case history that 5 was contained within the -- the brief that was provided 6 to the Crown Attorney for review. 7 MS. LUISA RITACCA: Okay. And if I could 8 tur -- ask you to turn starting at page 4 of that 9 document. And what I want to talk to you about with -- 10 in relation to -- to page 4 and page 5 is the role of the 11 investigating coroner in this case in -- in the early 12 stages, in any event. 13 Go down to the bottom of -- of the page at 14 -- it says: 15 "Dr. Mann..." 16 And that was the treating physician in the 17 Emergency Room, is that right? 18 MR. ROBERT KEETCH: That's correct. 19 MS. LUISA RITACCA: 20 "...assessed the eleven (11) month old 21 child presented with a probable 22 respiratory failure followed by cardiac 23 arrest. The events surrounding this 24 are somewhat unclear." 25 And then this next paragraph, it says:

232

1 "Dr. Mann contacted Dr. Deacon, the 2 coroner on call, and advised him of the 3 death of Nicholas. Dr. Deacon advised 4 that he would further the investigation 5 to the death of the child." 6 And if we turn to page 5, I'm skipping 7 over that paragraph where Dr. Mann's taken the history. 8 MR. ROBERT KEETCH: Yeah. 9 MS. BREESE DAVIES: The -- the next -- 10 the full -- the first full paragraph on page 5: 11 "Dr. Deacon, the coroner assigned to 12 investigate the death, contacted the 13 Sudbury Regional Police Service and 14 requested an officer attend the Sudbury 15 General Hospital Emergency Department." 16 And -- and then the following paragraph 17 has: 18 "Sergeant Robert Keetch, a member 19 assigned to the criminal investigation 20 branch of the Sudbury Regional Police, 21 was dispatched to investigate the 22 incident." 23 And does that accurately reflect how you 24 became involved in the case? 25 MR. ROBERT KEETCH: That's correct.

233

1 MS. BREESE DAVIES: Okay. And is that 2 normal procedure for the investigating coroner to 3 initiate police contact or does it vary depending on the 4 case? 5 MR. ROBERT KEETCH: That's generally the 6 -- I guess it depends varying on the case. I mean if the 7 incidents report -- the event is reported to the police 8 department first, then we would contact the -- the on 9 call coroner and vice versa. 10 If the individual presents under these 11 circumstances and passes away at hospital, then, 12 generally, the hospital will -- will contact the on-call 13 coroner who will then contact the police service. 14 MS. LUISA RITACCA: And what was your 15 understanding of your role in -- in this case? 16 MR. ROBERT KEETCH: Investigate the 17 circumstances surrounding Nicholas' death on behalf of 18 the coroner. 19 MS. LUISA RITACCA: Oh, that was going to 20 be my next question. You were investigating on behalf of 21 the coroner? 22 MR. ROBERT KEETCH: Yes. 23 MS. LUISA RITACCA: And I take it there's 24 no -- or you agree that it was appropriate for Dr. Deacon 25 to call you in these circumstances?

234

1 MR. ROBERT KEETCH: Yes. 2 MS. LUISA RITACCA: And, in fact, it was 3 consistent with the protocol in child death investigation 4 at the time? 5 MR. ROBERT KEETCH: Yes. 6 MS. LUISA RITACCA: And then I understand 7 -- if we go further down on page 5 -- both you and Dr. 8 Deacon then investigated the body? 9 MR. ROBERT KEETCH: Viewed the body. 10 MS. LUISA RITACCA: Viewed the body. I'm 11 sorry, that -- 12 MR. ROBERT KEETCH: Yes. 13 MS. LUISA RITACCA: And it says, three 14 paragraphs down from the last one I read: 15 "Sergeant Keetch and Dr. Deacon met 16 with the family and discussed the fact 17 that an investigation would be 18 conducted into the death of Nicholas. 19 The family was escorted in -- to the 20 family room, and Dr. Deacon and 21 Sergeant Keetch examined the deceased. 22 Nicholas was observed to be wearing a 23 blue sleeper, light blue undershirt, 24 socks. A -- a small bump on the right 25 side of the deceased's forehead was

235

1 located. No other trauma or bruising 2 was observed." 3 And in this -- the observation of the 4 small bump was consistent with the history that Dr. Mann 5 had obtained from the -- from Lianne? 6 MR. ROBERT KEETCH: That's correct. 7 MS. LUISA RITACCA: Thank you. And I 8 understand that according to this case history -- and 9 also we've seen this in the overview report -- that 10 following the time that you spent at the hospital that 11 you went to Nicholas' residence. 12 Is that correct? 13 MR. ROBERT KEETCH: That's correct. 14 MS. LUISA RITACCA: And I understand that 15 Dr. Deacon did not go to the residence. 16 MR. ROBERT KEETCH: No, he did not. 17 MS. LUISA RITACCA: And why is that, if 18 you know? 19 MR. ROBERT KEETCH: No, I -- I can't 20 answer that. 21 MS. LUISA RITACCA: And when you went to 22 the prim -- the residence, were you still acting on 23 behalf of the coroner, or were you undertaking an 24 investigation for the police? 25 MR. ROBERT KEETCH: Still acting on

236

1 behalf of the coroner. 2 MS. LUISA RITACCA: Okay. And how do you 3 make that distinction that you're acting on behalf of the 4 coroner as opposed to conducting a police investigation? 5 MR. ROBERT KEETCH: Probably the easiest 6 way to illustrate it here is when the consultation report 7 comes in, the focus of the investigation has now gone 8 from a sudden death investigation to a criminal 9 investigation. 10 So as soon as the investigation takes on a 11 criminal component, it becomes a police investigation 12 rather than a coroner's investigation. 13 So if there was -- you know, once the 14 consultation report was written, you'll see that all 15 information was garnered -- was garnered as -- through 16 search warrants because there was criminal aspects 17 associated with the investigation and we were no longer 18 relying on the coroner's authority relative to death 19 investigations. 20 MS. LUISA RITACCA: And so, if I 21 understand you, it's not until January 1997 that it 22 switches over from -- or the work that you're performing 23 switches over from work for the coroner to work for the 24 police? 25 MR. ROBERT KEETCH: Correct.

237

1 MS. LUISA RITACCA: Commissioner, I'm 2 heading off to a new topic, so it might be a perfect time 3 for a break. 4 COMMISSIONER STEPHEN GOUDGE: That is 5 fine. We will rise then until 3:30. 6 7 --- Upon recessing at 3:15 p.m. 8 --- Upon resuming at 3:30 p.m. 9 10 THE REGISTRAR: All rise. Please be 11 seated. 12 COMMISSIONER STEPHEN GOUDGE: Ms. 13 Ritacca...? 14 15 CONTINUED BY MS. LUISA RITACCA: 16 MS. LUISA RITACCA: Thank you, 17 Commissioner. 18 Inspector, in chief you indicated that 19 you'd worked with Dr. Chen prior to this case. Is that 20 correct? 21 MR. ROBERT KEETCH: That's correct. 22 MS. LUISA RITACCA: And you also 23 indicated that at some point you became aware of the fact 24 that the Coroner's Officer stopped using Dr. Chen, at 25 least for the cases that you were involved in?

238

1 MR. ROBERT KEETCH: That's correct. 2 MS. LUISA RITACCA: And can I ask you to 3 go to Tab 1, which is the Nicholas overview report, 4 PFP143263, at page 13, paragraph 43, and it reads: 5 "In a letter dated July 2nd, 1997, 6 Chief McCauly (phonetic)...? 7 Is that your -- was that your employer at 8 the time or your superior at the time --? 9 MR. ROBERT KEETCH: That's correct. 10 MS. LUISA RITACCA: -- wrote to Dr. 11 James Young, Chief Coroner of Ontario regarding Dr. Chen 12 stating: 13 "With regards to the ongoing problems 14 with Dr. Chen, the pathologist at the 15 Sudbury General Hospital, I wish to 16 bring to your attention several 17 matters." 18 Over the page. 19 "The first being that we have a strong 20 fear that Dr. Chen does not want to get 21 involved in any autopsy which he feels 22 a suspect may be at large. He shows a 23 fear that the board -- that borders on 24 paranoia about the suspects coming 25 after him and his family."

239

1 And then the letter goes on to say: 2 "Your office has been cooperative in 3 agreeing to perform sensitive autopsies 4 for us, but, as you can see, often 5 times it may not be sensitive ones, but 6 the straightforward ones which we -- 7 which we having difficulties with 8 because of the fears that Dr. Chen 9 harbours. There are other pathologists 10 available in Sudbury. Perhaps your 11 office could review the situation and 12 set up alternatives for us locally." 13 Inspector, were you aware that your Chief 14 sent this letter on July 2nd, 1997? 15 MR. ROBERT KEETCH: No, I was not. 16 MS. LUISA RITACCA: And did you ever 17 become aware of this letter prior to prepar -- preparing 18 for this Inquiry? 19 MR. ROBERT KEETCH: No. 20 MS. LUISA RITACCA: And were you aware of 21 the subject matter that your Chief's speaking about here, 22 namely Dr. Chen's unwillingness to get involved in 23 certain types of cases? 24 MR. ROBERT KEETCH: More a paranoia in 25 relation to homicide cases, especially homicide cases

240

1 where a suspect was outstanding. He had voiced those 2 concerns during autopsies. I just wasn't aware there was 3 a letter sent. 4 MS. LUISA RITACCA: All right. A letter 5 where, in fact, your Chief requests that the Coroner's 6 Office stops using Dr. Chen, is that -- 7 MR. ROBERT KEETCH: That's correct. 8 MS. LUISA RITACCA: Okay. And if you 9 could turn to Dr. Chen's autopsy in this case. 10 As I understood your evidence-in-chief, 11 you expressed some concerns regarding the fact that it 12 doesn't appear in the materials that Dr. Chen makes any 13 mention of the bump on Nicholas' head that, at least, 14 you, and Dr. Deacon, and -- and Dr. Mann indicated having 15 seen at the hospital? 16 MR. ROBERT KEETCH: The only indication 17 he makes was, I believe in his autopsy report, he 18 describes an injury in the area that is consistent with 19 what we observed, but associates that injury to a 20 potential needle and the resuscitation efforts that were 21 involved. And that was never clarified with him. 22 MS. LUISA RITACCA: Right. And I -- I 23 think I know what you're referring to. I can ask you 24 turn up page 11 of the overview report, same document. 25 And at paragraph 31 sets out what Dr. Chen set out in his

241

1 report as to the external findings. In the bottom where 2 it starts: 3 "Body weight approximately 35 pounds, 4 rigor mortis is present, patchy 5 posterior post-mortem lividity is seen, 6 decomposition, nil, nourishment normal, 7 skin, small needle puncture wounds are 8 noted on both femoral right forehead 9 and both antecubital fossa." 10 Is that what you're referring to, -- 11 MR. ROBERT KEETCH: That's what I'm 12 referring to. 13 MS. LUISA RITACCA: -- the right 14 forehead? 15 MR. ROBERT KEETCH: Yeah, the -- the body 16 had been -- how do I say -- you know, any evidence of 17 resuscitation efforts had been removed from the body 18 prior to Nicholas being returned to the -- to the mother. 19 And she had spent some time with him. 20 And then Dr. Deacon and I had done an 21 examination, so we -- we wouldn't -- at least, I wasn't 22 aware that -- you know, that mark that potentially we 23 identified on the -- above the right eye was -- may have 24 been associated with resuscitation efforts. 25 MS. LUISA RITACCA: Right. And I also

242

1 understood in your evidence-in-chief that you weren't 2 sure whether or not Dr. Chen knew of the history of the - 3 - the bump under the sewing machine? 4 MR. ROBERT KEETCH: I would have bel -- I 5 would -- I have no personal knowledge, but I believe that 6 Sergeant Thibeault would have taken that information to 7 Dr. Chen prior and communicated that prior to the 8 autopsy. 9 MS. LUISA RITACCA: All right. And if I 10 ask you to just turn back one (1) page to page 10 of the 11 overview report, paragraph 26 excerpts Dr. Deacon's 12 warrant for post-mortem examination. And in the -- in 13 the indented portion, it says: 14 "Previously healthy child off balance 15 lately. Today stood up underneath 16 sewing machine, bumped head, cried, 17 eyes rolled back, collapsed, and 18 stopped breathing." 19 And you have no reason to dispute the 20 fact that Dr. Chen would have had the warrant for post- 21 mortem at the time that he conducted the autopsy? 22 MR. ROBERT KEETCH: Practice is that the 23 warrant accompanies the body. 24 MS. LUISA RITACCA: Right. And if I 25 could ask you to flip to Tab 5, and that's PFP007633. I

243

1 understand this is your sudden death occurrence report? 2 MR. ROBERT KEETCH: That's correct, yep. 3 MS. LUISA RITACCA: And if I read it 4 correctly, and I may not be reading it correctly, it -- 5 it appears that you filed it the 30th of November, 1995 6 at 23:10? 7 MR. ROBERT KEETCH: That's correct. 8 MS. LUISA RITACCA: And does that mean -- 9 when -- when it says filed, does that mean it -- 10 MR. ROBERT KEETCH: That's when -- 11 MS. LUISA RITACCA: -- it appears -- 12 MR. ROBERT KEETCH: -- I'm dictating it. 13 We dictate our reports. 14 MS. LUISA RITACCA: Okay. 15 MR. ROBERT KEETCH: And then they're 16 transcribed. 17 MS. LUISA RITACCA: And how long between 18 the time that they're trans -- that they're dictated to 19 the time that they're transcribed? 20 MR. ROBERT KEETCH: It depends on a case- 21 by-case basis, but for sudden death reports, we call -- 22 what -- we do what's prioritize it which would mean it 23 would go to the top of the list for transcription. It 24 would -- would have been completed prior to the autopsy 25 the following day.

244

1 MS. LUISA RITACCA: All right, that was 2 going to be my question. Do you have any knowledge as to 3 whether or not Dr. Chen received this prior to the 4 autopsy? 5 MR. ROBERT KEETCH: No, I have no 6 personal knowledge. It may be contained in Sergeant 7 Thibeault's statement relative to the investigation, but 8 I'm not familiar with that. 9 MS. LUISA RITACCA: Should he have 10 received a copy of this prior to the autopsy? 11 MR. ROBERT KEETCH: Yes. And/or been 12 verbally communicated. And I can kind of reassure you 13 that Leo -- or Sergeant Thibeault would have done that 14 because he was indirectly related to the -- Lianne's 15 boyfriend at the time, or Peter Thibeault -- 16 MS. LUISA RITACCA: Okay. 17 MR. ROBERT KEETCH: -- is related to Leo, 18 so there was, kind of, a personal interest in relation to 19 this investigation. 20 MS. LUISA RITACCA: All right. And would 21 a -- would your colleague have known the details that are 22 included in this sudden death report, including in 23 particular, that Dr. Mann, the ER doctor, had observed 24 there was a slight swelling on the upper right side of -- 25 of Nicholas' head?

245

1 And at the bottom of the page in relation 2 to what you and Dr. Deacon had identified, there was a 3 slight bump located on the top right side of the head? 4 MR. ROBERT KEETCH: Yes, he should have 5 been aware of that information. 6 MS. LUISA RITACCA: All right. 7 8 (BRIEF PAUSE) 9 10 MS. LUISA RITACCA: Inspector, if I could 11 ask you to flip back to Tab 1, and I apologize for that. 12 It's the overview report again. Go to page 22. 13 14 (BRIEF PAUSE) 15 16 MS. LUISA RITACCA: And this is with 17 regard to the disinterment. I -- according to the 18 overview report, on June 19th, 1997, the Attorney General 19 issues the order for disinterment of Nicholas' body, is 20 that correct? 21 MR. ROBERT KEETCH: That's correct, yes. 22 MS. LUISA RITACCA: And this, as I 23 understand it, following the chronology set out in the 24 overview report is after your May 1997 meeting with Dr. 25 Smith and others regarding his opinion?

246

1 MR. ROBERT KEETCH: Yes, that's correct. 2 MS. LUISA RITACCA: And it's also after 3 your consultation with the police behaviourist, is that 4 correct? 5 MR. ROBERT KEETCH: That's correct. 6 MS. LUISA RITACCA: Okay. And if I can 7 ask you to turn up Tab 4, which is back to your case 8 history, page 9. 9 10 (BRIEF PAUSE) 11 12 MS. LUISA RITACCA: Oh, I'm sorry, 13 Registrar, that's PFP099320. 14 15 (BRIEF PAUSE) 16 17 MS. LUISA RITACCA: And the bottom half 18 of that document, the paragraph starts: 19 "A compilation of documents touching on 20 the Sudbury Regional Police Service 21 criminal investigation into the death 22 of Nicholas, and requiring the 23 disinterment of Nicholas pursuant to 24 Section 57(2), Cemeteries Act, was 25 prepared by Sergeant Keetch."

247

1 The brief was presented to the Attorney 2 General's Office for review on Wednesday the 18th, June 3 1997? 4 MR. ROBERT KEETCH: That's correct. 5 MS. LUISA RITACCA: And so you were 6 tasked with compiling all of the relevant documents for 7 the Attorney General to decide whether or not to order 8 the disinterment, is that correct? 9 MR. ROBERT KEETCH: That's correct. 10 MS. LUISA RITACCA: And this was the 11 police's decision to -- to move forward with the 12 disinterment? 13 MR. ROBERT KEETCH: Well, it was in 14 consultation with Dr. Cairns, as -- there was ongoing 15 discussion during that case conference in May as to 16 whether we were going to get a disinterment order or use 17 the -- a coroner's warrant. 18 And, because, as I said earlier, the focus 19 of the investigation had shifted in January to a criminal 20 investigation, Dr. Cairns came back and consulted with 21 legal counsel, I believe, at the Chief Coroner's Office, 22 and a decision was made that it was a requirement that we 23 prepare a disinterment brief, because at that point in 24 time we were doing a criminal investigation. 25 MS. LUISA RITACCA: So, ultimately -- I -

248

1 - I hear you -- what you're saying, when you were in 2 consultation with Dr. Cairns you made the decision, but 3 ultimately it was the decisions of -- was the police as 4 to move forward with the investigation, is that fair? 5 MR. ROBERT KEETCH: Yeah, I guess that's 6 a fair statement. 7 MS. LUISA RITACCA: Yeah. 8 COMMISSIONER STEPHEN GOUDGE: Who makes 9 the decision to disinter, from your perspective, I mean 10 apart from the ultimate -- 11 MR. ROBERT KEETCH: Well, I mean -- 12 COMMISSIONER STEPHEN GOUDGE: -- 13 authorisation by the Attorney General? 14 MR. ROBERT KEETCH: Yeah, I mean it would 15 be on recommendation of the medical experts, you know, 16 convincing us that there's a value in doing a second 17 post-mortem and then assessing -- 18 COMMISSIONER STEPHEN GOUDGE: So the 19 medical experts come to you and you recommend then to the 20 Attorney General? 21 MR. ROBERT KEETCH: Yeah, that was, you 22 know, discussion in the January meeting and subsequently, 23 a decision made in the May meeting, that there was a need 24 to do a disinterment and a second autopsy on Nicholas, 25 and that was Dr. Smith and Dr. Cairns that were providing

249

1 us with that opinion, but the disinterment brief was 2 prepared by myself and presented to the Attorney General. 3 4 CONTINUED BY MS. LUISA RITACCA: 5 MS. LUISA RITACCA: And, Inspector 6 Keetch, I don't think you need to turn this up, but I had 7 a couple of questions about the Major Case Management 8 manual. 9 And in particular, I was wondering if 10 there was any input from representatives of the Ontario 11 Coroner's Office with regard to the creation of -- of the 12 manual, and in particular, with regard to the 13 standardization of procedures around the autopsy? 14 MR. ROBERT KEETCH: Yeah, that was pre my 15 joining the committee, but it is my belief that, 16 obviously, they were consulted and had input in relation 17 to those standards, so were established. 18 MS. LUISA RITACCA: And I understand from 19 speaking to you earlier that you -- you don't have any 20 knowledge as to who those people from the Coroner's 21 Office might have been or...? 22 MR. ROBERT KEETCH: No, I do not. 23 MS. LUISA RITACCA: And there doesn't 24 continue to be any -- is there any representation from 25 the Coroner's Office on this committee?

250

1 MR. ROBERT KEETCH: No, the policing 2 standards, kind of, oversees the -- the committee, and 3 the manual, and the regulation, and any recommendations 4 that we, as a for -- committee, bring forward. 5 And then there's a steering committee 6 that has membership from the Chief Coroner's Office, I 7 believe, is actually chaired by the -- the Chief Coroner 8 in relation to recommendations that my committee makes to 9 that steering committee relative to any changes in 10 legislation and/or the manual that the Chief Coroner has 11 representation on. 12 MS. LUISA RITACCA: All right. And, 13 Inspector Keetch, I wanted to ask a couple of questions 14 about the current situation with regard to Forensic 15 Pathology Services in Sudbury, and Mr. Sandler alluded to 16 some of that this morning. 17 I understand that homicide and criminally 18 suspicious cases in the Greater Sudbury area are done by 19 Dr. Martin Queen, is that correct? 20 MR. ROBERT KEETCH: That's correct. 21 MS. LUISA RITACCA: Okay. And -- and I 22 understand he's a Certified Forensic Pathologist. I'm 23 not sure if you were aware of that. 24 MR. ROBERT KEETCH: That's correct. Yes, 25 I am aware.

251

1 MS. LUISA RITACCA: And if Dr. Queen is 2 not available, who does the criminally suspicious 3 homicide cases for that region? 4 MR. ROBERT KEETCH: Generally, our bodies 5 are transported to Toronto and would be done at Forensic 6 Pathology, so may be Dr. Pollanen that does it; it 7 depends who is working within that office the particular 8 date that the body gets transported here, but they 9 generally come to Toronto. 10 MS. LUISA RITACCA: And we've heard that 11 there is significant monetary and also human costs 12 associated with transporting a body. 13 And -- and as somebody from the Police 14 Services side of things, are you able to comment on what 15 that means for an investigation, to have police officers 16 coming down to Toronto with a body? 17 MR. ROBERT KEETCH: Well, obviously we 18 would earn -- incur the costs, the vehicle costs, you 19 know, the gas. We would also incur per diem for their 20 meals and then we would incur their hotel while they're 21 here as well. 22 MS. LUISA RITACCA: And what about not 23 necessarily monetary costs but how that impacts on an 24 investigation that might be happening at the same time? 25 MR. ROBERT KEETCH: I mean, it creates

252

1 distance. 2 You know, generally, if it's a homicide 3 then not only are we sending the IDENT officer down, 4 we're sending the investigators as well. And if they're 5 sent here then, obviously, we don't have access to them 6 for the -- you know, several days that they're down here 7 -- potentially two (2) days, I guess, that they're down 8 here for the autopsy when you incur the travel associated 9 with that. But sometimes it's a judgment call. 10 Generally, we have more than one (1) 11 individual working on the homicide and we can afford to, 12 you know, potentially spare the investigator for those 13 two (2) days. 14 MS. LUISA RITACCA: And turning back our 15 attention to Dr. Queen for a moment. 16 Are you able to articulate the value added 17 to having a forensic pathologist in the region performing 18 these types of cases? 19 MR. ROBERT KEETCH: Well, aside from 20 having to send our bodies here to Toronto, I mean, 21 there's the convenience of having a qualified individual 22 there so you get timely results and/or the consultation - 23 - you know, an immediate consultation with him. 24 There's also an air of confidence 25 associated with, you know, a qualified forensic

253

1 pathologist doing your autopsy. I think we, as a 2 service, recognize the benefit of having him within our 3 community, obviously. 4 MS. LUISA RITACCA: Thank you. 5 Finally, Inspector, you spoke a bit when 6 you were discussing your recommendations about the Death 7 Under Five Committee. Were you familiar with the Death 8 Under Five Committee prior to preparing for this Inquiry? 9 MR. ROBERT KEETCH: Prior to Nicholas' 10 death, no. 11 MS. LUISA RITACCA: Okay. The Death 12 Under Five Committee as -- as different from the 13 Paediatric Death Review Committee. 14 MR. ROBERT KEETCH: No. 15 MS. LUISA RITACCA: Okay. So are you 16 familiar that there are, in fact, two (2) -- two (2) 17 committees at the -- 18 MR. ROBERT KEETCH: Only from -- 19 MS. LUISA RITACCA: -- Coroner's Office? 20 MR. ROBERT KEETCH: -- reading some of 21 the documentation associated with this Inquiry -- 22 MS. LUISA RITACCA: All right. 23 MR. ROBERT KEETCH: -- and specifically, 24 Nicholas' death. 25 MS. LUISA RITACCA: And are you at all

254

1 familiar with the Death Under Five Committee's 2 membership? 3 MR. ROBERT KEETCH: No, I'm not. 4 MS. LUISA RITACCA: Okay. And -- are you 5 aware that there are police represented -- 6 representatives on the committee? 7 MR. ROBERT KEETCH: Yes, I am. 8 MS. LUISA RITACCA: From Toronto and from 9 outside of Toronto? 10 MR. ROBERT KEETCH: Yes. 11 MS. LUISA RITACCA: And are you aware 12 that there are a number of pathologists, including Dr. 13 Pollanen, Dr. Chiasson, Dr. Summers, until recently Dr. 14 Taylor, and recently added Dr. Shkrum and Dr. Rao? 15 MR. ROBERT KEETCH: No, I wasn't familiar 16 with all of those names. 17 MS. LUISA RITACCA: And are you aware 18 that when a case goes to the Death Under Five Committee, 19 it's assigned to a primary reviewer -- both a primary 20 reviewing police officer and a primary reviewing 21 pathologist? 22 MR. ROBERT KEETCH: No, I was not. 23 MS. LUISA RITACCA: Okay. And are you 24 aware that the primary reviewers present the case at the 25 committee, and there's discussion by the full committee

255

1 at that time? 2 MR. ROBERT KEETCH: No, I -- I'm not 3 aware of that. No. 4 MS. LUISA RITACCA: And I take it then 5 you're not -- further not aware that if the primary 6 reviewers require additional information, that additional 7 information is sought and obtained? 8 MR. ROBERT KEETCH: I'm not aware of 9 that, but I would anticipate that would be the case. 10 MS. LUISA RITACCA: Okay. And 11 ultimately, the committee's consensus determination as to 12 cause of death and manner of death, that is made for the 13 purposes of the coroner's investigation. 14 Are you famil -- aware of that? 15 MR. ROBERT KEETCH: That's the coroner's 16 mandate, to make those two (2) decisions. Yes, I'm aware 17 of that. 18 MS. LUISA RITACCA: And that's shared 19 with the Regional Supervising Coroner? 20 MR. ROBERT KEETCH: Yes. 21 MS. LUISA RITACCA: Are you aware of 22 that? 23 MR. ROBERT KEETCH: Yes. 24 MS. LUISA RITACCA: Thank you, Inspector. 25 Thank you, Commissioner, those are my

256

1 questions. 2 COMMISSIONER STEPHEN GOUDGE: Thanks, 3 Ms. Ritacca. 4 Mr. Manuel...? 5 6 CROSS-EXAMINATION BY MR. WILLIAM MANUEL: 7 MR. WILLIAM MANUEL: Inspector Keetch, 8 we've been introduced, in passing, so to speak. My name 9 is Bill Manuel. I represent the Crown Attorneys, one (1) 10 of which is Justice -- presently Justice Rogers in this 11 matter. 12 I'm going to have a few questions about 13 your interaction with him -- 14 COMMISSIONER STEPHEN GOUDGE: Well, you 15 really represent the AG. 16 MR. WILLIAM MANUEL: The Province of 17 Ontario, yes. 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 MR. WILLIAM MANUEL: And -- 20 COMMISSIONER STEPHEN GOUDGE: Mr. 21 Cavalluzzo would take great offence for you to say you 22 represent the Crown Attorney. 23 MR. WILLIAM MANUEL: I don't believe so. 24 Mr. Cavalluzzo represents the Association -- 25 COMMISSIONER STEPHEN GOUDGE: Yes, okay.

257

1 MR. WILLIAM MANUEL: -- Commissioner. 2 3 CONTINUED BY MR. WILLIAM MANUEL: 4 MR. WILLIAM MANUEL: If I could ask you 5 to take Tab 1, the Nicholas overview report, page 27. 6 And paragraph 79, specifically, you received in late 7 October or early November Dr. Smith's post-mortem report 8 with the memorable phrase that we've discussed -- that 9 you've discussed with other counsel here in the absence 10 of an alternative credible explanation. 11 And I take it that this is a time frame 12 that you then consulted with Greg Rodgers on this matter? 13 MR. ROBERT KEETCH: Mr. Rodgers would 14 have been consulted prior to that, I believe. I'm -- I'm 15 trying -- I believe that I had provided him written docu 16 -- you know, after the meeting where we received the 17 verbal report from Dr. Smith, I believe that the 18 documentation I prepared relative to the status of the 19 investigation was put together. 20 I consulted him with regard to that. I 21 just -- I can't recall the exact date. But that 22 information was provided to him pending the -- a 23 determination by the Crown Attorney's Office as to 24 whether there was reasonable expectation of conviction. 25 And then, again, to familiarize him with

258

1 investigation, pre a scheduled meeting that he would 2 attend with Dr. Cairns and Dr. Smith to discuss the final 3 autopsy report. 4 MR. WILLIAM MANUEL: Right. In fact, you 5 gave Rodgers a complete Crown brief -- 6 MR. ROBERT KEETCH: Yes. 7 MR. WILLIAM MANUEL: -- with all of the 8 investigation -- the original investigation, the 9 statements, the -- the autopsy reports, including the 10 final autopsy report prior to the meeting? 11 MR. ROBERT KEETCH: That's correct. 12 MR. WILLIAM MANUEL: And the -- the 13 phrase, "in the absence of an alternative credible 14 explanation," raised the question in your minds -- and I 15 suggest Rodger's mind -- whether the necessity to 16 investigate whether there was a credible alternative 17 explanation, correct? 18 MR. ROBERT KEETCH: That was certainly 19 subject to discussions at those meetings. 20 MR. WILLIAM MANUEL: With you and -- 21 MR. ROBERT KEETCH: Yes. 22 MR. WILLIAM MANUEL: -- Rodgers? 23 MR. ROBERT KEETCH: Yes. 24 MR. WILLIAM MANUEL: Right. And there 25 were three (3) things, as I -- I put it to you, that you

259

1 needed to look at. One (1) was natural causes -- whether 2 natural causes was an adequate explanation for what 3 occurred in this case? 4 MR. ROBERT KEETCH: Yes. 5 MR. WILLIAM MANUEL: Whether accident was 6 an adequate explanation for what occurred in this case? 7 MR. ROBERT KEETCH: Yes. 8 MR. WILLIAM MANUEL: And, finally, 9 whether the injuries that occurred on the day that the 10 child was alone with Lianne were -- could be tagged or 11 you could say the -- the injuries exclusive occurred as a 12 result of that incident? That was the third thing that 13 needed to be looked at? 14 MR. ROBERT KEETCH: The incident we're 15 talking about is the bumping of the head or -- 16 MR. WILLIAM MANUEL: On the -- bumping of 17 the head on the sewing machine? 18 MR. ROBERT KEETCH: Yes. 19 MR. WILLIAM MANUEL: Whether the injuries 20 and the -- and the denouement could all be attributed to 21 that one (1) injury or, in fact, it could be attributed, 22 whole or in part, to an earlier injury? 23 MR. ROBERT KEETCH: Yes. 24 MR. WILLIAM MANUEL: All right. And 25 that's, I take it, what caused in November of '97 to take

260

1 further statements in respect of the history of further - 2 - of earlier injuries, which might explain the edema and 3 swelling of the brain, correct? 4 MR. ROBERT KEETCH: Yes. Yes, that's 5 correct. 6 MR. WILLIAM MANUEL: Right. And I take 7 it that -- am I right that when you met -- when Rodgers 8 met with Smith and the group, that Rodgers questioned 9 Smith on all of those areas; on that -- whether natural 10 causes was an adequate, possible explanation for the 11 injuries that occurred. 12 He questioned him on that subject? 13 MR. ROBERT KEETCH: Yes, I believe so. 14 MR. WILLIAM MANUEL: He questioned him on 15 whether accident could be an adequate alternative 16 explanation? 17 MR. ROBERT KEETCH: Yes. 18 MR. WILLIAM MANUEL: And he questioned 19 him whether the injuries could be attributed to the 20 incident with the incident with the sewing machine as 21 opposed to an earlier incident? 22 MR. ROBERT KEETCH: Yes. 23 MR. WILLIAM MANUEL: Correct. And am I 24 right that Dr. Smith's conclusion was that while he did 25 not believe that any of them -- those three (3) -- were

261

1 an adequate alternative explanation, he could not rule 2 them out. 3 Is that correct? Do you remember that? 4 MR. ROBERT KEETCH: I do have some 5 recollection of that, yes. 6 MR. WILLIAM MANUEL: All right. So, in 7 fact, it's the phrase "in the -- in the absence of an 8 alternative explanation" is what caused or highlighted 9 the issue, which is really not so much the phrase, but 10 the substance of it? 11 Can we exclude other reasonable 12 possibilities so that we can say non-accidental head 13 trauma caused by Lianne, isn't that -- 14 MR. ROBERT KEETCH: I think we -- we were 15 aware that we would have to do that to potentially go 16 forward with a charge and a successful prosecution. We 17 had to address those areas that you've illustrated. 18 Yes, that would be correct. 19 MR. WILLIAM MANUEL: Right. And -- and 20 it was Rodgers, as I understand it, his view at the end 21 of that discussion that, in light of the inability to 22 exclude those, meant that there was no reasonable 23 prospect of conviction and that, therefore, the pro -- 24 the Crown would not be prosecuting or proceeding with 25 these -- this case if charges were laid?

262

1 MR. ROBERT KEETCH: I don't recall the -- 2 that specific conversation, but there was -- obviously 3 there was the decision that we weren't going forward for 4 -- you know, for a number of reasons, yes. 5 MR. WILLIAM MANUEL: Including the ones 6 that I've isolated or indicated here? 7 MR. ROBERT KEETCH: Yeah. I believe so, 8 yes. 9 MR. WILLIAM MANUEL: Were there other 10 ones? 11 MR. ROBERT KEETCH: No, I'm just -- I 12 can't remember the speci -- you know, I -- on -- I can't 13 remember the specifics of exactly what Mr. Rodgers said 14 to Dr. Smith, with regard to those specific areas, but 15 there were discussions on -- 16 MR. WILLIAM MANUEL: But he questioned 17 him -- 18 MR. ROBERT KEETCH: Yes. 19 MR. WILLIAM MANUEL: -- on those three 20 (3) areas -- 21 MR. ROBERT KEETCH: Yes. 22 MR. WILLIAM MANUEL: -- and came to the 23 conclusion that there was no reasonable prospect of 24 conviction based on that discussion? 25 MR. ROBERT KEETCH: Yes.

263

1 MR. WILLIAM MANUEL: Thank you. Thank 2 you, Commissioner. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 4 Manuel. Mr. Sandler...? 5 MR. MARK SANDLER: No re-examination, 6 thank you very much. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 Inspector Keetch, well, we are very grateful for you 9 having attended today and the thought you've put into the 10 preparation and delivery of your evidence. It's of great 11 assistance to us, frankly. So, thank you very much, and 12 have a safe trip back to Sudbury. 13 MR. ROBERT KEETCH: Thanks. 14 COMMISSIONER STEPHEN GOUDGE: We will 15 rise then until 9:30 tomorrow morning. 16 17 --- Upon adjourning at 3:59 p.m. 18 19 Certified Correct, 20 21 22 ________________ 23 Rolanda Lokey, Ms. 24 25