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 15th, 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             )     Dr. Charles Smith
 18  Niels Ortved         (np) )
 19  Erica Baron          (np) )
 20  Grant Hoole          (np) )
 21   
 22  William Carter      (np)  )     Hospital for Sick Children
 23  Barbara Walker-Renshaw(np) )
 24  Kate Crawford        (np) )
 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        (np)  )    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          )
 15  Daniel Bernstein     (np) )
 16  
 17  Louis Sokolov             )     Association in Defence of
 18  Vanora Simpson       (np)  )    the Wrongly Convicted
 19  Elizabeth Widner      (np) )
 20  Paul Copeland         (np) )
 21  
 22  Jackie Esmonde        (np) )     Aboriginal Legal Services 
 23  Kimberly Murray      (np) )     of Toronto and Nishnawbe
 24  Sheila Cuthbertson    (np) )      Aski-Nation
 25  Julian Falconer      (np) )

4
  1                 APPEARANCES (cont'd)
  2  Suzan Fraser              )     Defence for Children 
  3                             )     International - Canada
  4  
  5  William Manuel     (np)   )     Ministry of the Attorney
  6  Heather Mackay     (np)   )     General for Ontario
  7  Erin Rizok          (np)   )
  8  Kim Twohig                 )
  9  Chantelle Blom     (np)    )
 10  
 11  Natasha Egan       (np)   )     College of Physicians and 
 12  Carolyn Silver            )     Surgeons
 13  
 14  Michael Lomer      (np)    )    For Marco Trotta
 15  Jaki Freeman        (np)   )
 16  
 17  Emily R. McKernan   (np)   )    Glenn Paul Taylor
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25

1 TABLE OF CONTENTS Page No. 2 3 LARRY WILLIAM ROBERT CHARMLEY, Sworn 4 JOHN SCOTT KIRKLAND, Sworn 5 6 Examination-In-Chief by Mr. Mark Sandler 6 7 Cross-Examination by Ms. Jane Landford 106 8 Cross-Examination by Mr. Peter Wardle 150 9 Cross-Examination by Ms. Alison Craig 165 10 Cross-Examination by Ms. Mara Greene 168 11 Cross-Examination by Ms. Suzan Fraser 175 12 Cross-Examination by Ms. Carolyn Silver 180 13 Cross-Examination by Ms. Luisa Ritacca 195 14 Re-Direct Examination by Mr. Mark Sandler 198 15 16 17 Certificate of transcript 210 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: Mr. 6 Sandler...? 7 MR. MARK SANDLER: Good morning, 8 Commissioner. Commissioner, this morning you'll be 9 hearing from two (2) witnesses, Sergeant Larry Charmley, 10 and a former Constable, Scott Kirkland, from the 11 Peterborough Lakefield Community Police Service. 12 And we have with us as their counsel, and 13 counsel for the police service, Don White, who's seated-- 14 COMMISSIONER STEPHEN GOUDGE: Mr. White. 15 MR. MARK SANDLER: -- front table. I'd 16 ask that the two (2) witnesses be sworn please? 17 18 LARRY WILLIAM ROBERT CHARMLEY, Sworn 19 JOHN SCOTT KIRKLAND, Sworn 20 21 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 22 MR. MARK SANDLER: Good morning, 23 gentlemen. MR. LARRY CHARMLEY: Morning. 24 MR. MARK SANDLER: Sergeant Charmley, I'm 25 going to start with you if I may. And if you would turn

1 to Tab 50 of the document binder that you have in front 2 of you, and this is PFP302590, at page 1. 3 And this is your curriculum vitae as I 4 understand it? 5 MR. LARRY CHARMLEY: Yes, it is. 6 MR. MARK SANDLER: And you have been an 7 officer with the Peterborough Lakefield Community Police 8 Service, formerly the Peterborough City Police Service 9 since 1986, am I right? 10 MR. LARRY CHARMLEY: That's correct. 11 MR. MARK SANDLER: You were promoted to 12 the position of Sergeant in July of 2005 and continue to 13 serve in that rank today? 14 MR. LARRY CHARMLEY: I do. 15 MR. MARK SANDLER: From 2001 to 2004, you 16 served as a Detective Constable in the Major Crime Unit 17 of the Criminal Investigations Branch, am I right? 18 MR. LARRY CHARMLEY: That's correct. 19 MR. MARK SANDLER: And as I understand 20 it, the Major Crime Unit investigates, amongst other 21 things, homicides and sudden and unexpected deaths. 22 Is that true? 23 MR. LARRY CHARMLEY: That's correct, yes. 24 MR. MARK SANDLER: There's no discreet 25 homicide unit as exists in some larger police services?

1 MR. LARRY CHARMLEY: No, there is not. 2 MR. MARK SANDLER: And from 1995 to 1997, 3 you served as a Detective Constable in General 4 Investigations again within the Criminal Investigations 5 Branch? 6 MR. LARRY CHARMLEY: That's right. 7 MR. MARK SANDLER: And as reflected in 8 your curriculum vitae, your courses and training include 9 major crime investigative techniques, major case 10 management, homicide investigation and several homicide 11 seminars? 12 MR. LARRY CHARMLEY: That's correct. 13 MR. MARK SANDLER: All right. 14 Officer Kirkland, if I can turn to you, 15 and I know you're now retired but for convenience, if I 16 may continue to refer to you as Constable Kirkland, it 17 will make my task a little bit easier. 18 You are retired? 19 MR. SCOTT KIRKLAND: Yes, sir. 20 MR. MARK SANDLER: When was it that you 21 retired from the police service? 22 MR. SCOTT KIRKLAND: December 31st, '98. 23 MR. MARK SANDLER: All right. And 24 previously you served as a member of that same police 25 service?

1 MR. SCOTT KIRKLAND: Yes, sir. 2 MR. MARK SANDLER: And how many years 3 were you a member of the force? 4 MR. SCOTT KIRKLAND: Twenty-seven and a 5 half (27 1/2). 6 MR. MARK SANDLER: All right. And for a 7 portion of that time period I understand you were a 8 forensic identification officer. Am I correct? 9 MR. SCOTT KIRKLAND: Yes, for the last 10 eleven (11) years. 11 MR. MARK SANDLER: All right. And as 12 such, did you have occasion to attend autopsies? 13 MR. SCOTT KIRKLAND: Yes, sir. 14 MR. MARK SANDLER: Approximately, and 15 knowing this has to strain ones' memory right from the 16 outset, how many autopsies do you think you attended in 17 your career? 18 MR. SCOTT KIRKLAND: Oh, this is probably 19 a guess but I'd say forty (40) to fifty (50) -- 20 MR. MARK SANDLER: Okay. 21 MR. SCOTT KIRKLAND: -- over eleven (11) 22 years... 23 MR. MARK SANDLER: And did some of those 24 autopsies involve children? 25 MR. SCOTT KIRKLAND: Yes.

1 MR. MARK SANDLER: And were any of those 2 autopsies performed by Dr. Charles Smith? 3 MR. SCOTT KIRKLAND: Yes, three (3) or 4 four (4) of them. 5 MR. MARK SANDLER: All right. And I 6 expect that we'll hear that one (1) of these autopsies 7 took place, in what we describe, as the Jenna case. 8 Am I right? 9 MR. SCOTT KIRKLAND: Yes, sir. 10 MR. MARK SANDLER: And do you remember 11 very, very generally the kinds of cases that Dr. Smith 12 was performing autopsies on that you were present for? 13 MR. SCOTT KIRKLAND: There was a 14 suspicious death where a child allegedly tumbled down 15 stairs. I think two (2) drownings and the Jenna case -- 16 MR. MARK SANDLER: All right. 17 MR. SCOTT KIRKLAND: -- that I can 18 remember. 19 MR. MARK SANDLER: And how did you regard 20 Dr. Smith? 21 MR. SCOTT KIRKLAND: Actually, I had a 22 very high regard for him. I -- he was gracious to me. 23 The first time I was at the Hospital for Sick Children, 24 he came downstairs, met me, took me upstairs. He was 25 performing another autopsy prior to the one (1) I was

1 doing, and he had me sit in his office. I thought he was 2 a fine fellow actually. 3 MR. MARK SANDLER: All right. And -- and 4 did he discuss with you some of his work or some of his 5 speciality areas in the course of your involvement with 6 him over the years? 7 MR. SCOTT KIRKLAND: Yes, he did. And a 8 matter of fact, he bought me lunch I think the first day 9 and we talked generally -- general conversation but part 10 of it was that and his interest in the Shaken Baby 11 Syndrome and -- 12 MR. MARK SANDLER: Okay. 13 MR. SCOTT KIRKLAND: -- sort of thing. 14 MR. MARK SANDLER: And you understood 15 from speaking with him, as I understand it, that he 16 lectured on the topic of Shaken Baby Syndrome and -- and 17 relayed one (1) lecture commitment on his part in 18 Australia, I believe. 19 Is that right? 20 MR. SCOTT KIRKLAND: One (1) of the 21 conversations I had with him he was either just going or 22 had just come back from Australia to give a talk on 23 Shaken Baby Syndrome. 24 MR. MARK SANDLER: All right. Now I'm 25 going to ask you about the Jenna investigation, and the

1 reason I'll turn to you first, Constable Kirkland, is 2 because I intend to proceed as much as possible 3 chronologically. And we know that your involvement in 4 Jenna pre-dated the involvement of Sergeant Charmley who 5 is beside you. 6 So if I can ask you to turn to Tab 1 of 7 that volume that's in front of you and that is PFP144684. 8 And we know that Jenna died on January the 22nd of 1997 9 at the age of twenty-one (21) months in Peterborough and 10 that the autopsy was performed on January 22nd, that very 11 same day. 12 And if I can ask you to turn to page 13 of 13 this overview report, and I'm looking at paragraph 33. 14 And we actually see -- if you have that? 15 MR. SCOTT KIRKLAND: Page 13. I don't 16 have it, it starts at 37. 17 MR. MARK SANDLER: If you -- 18 COMMISSIONER STEPHEN GOUDGE: Use the 19 numbers at the top. 20 MR. MARK SANDLER: -- look at the 21 pagination at the -- 22 MR. SCOTT KIRKLAND: Have I gone too far? 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: If you look at the

1 pagination -- 2 MR. SCOTT KIRKLAND: Oh, yes, sir. 3 MR. MARK SANDLER: -- right at the top. 4 That's fine, thank you. And at paragraph 33, it reflects 5 that Jenna arrived at Peterborough Civic Hospital at 6 approximately 1:02 in the morning. 7 She had no vital signs. Efforts to revive 8 her were unsuccessful and she was pronounced dead at 1:50 9 that same day. And then the overview report reflects: 10 "Dr. Friesen observed numerous areas of 11 bruising on Jenna. He also observed 12 possible rectal stretching and tears in 13 the vulva and a curly hair in the 14 vulva. His emergency record noted 15 'Curly hair found on the vulva area', 16 question, 'source'. Dr. Loukras, who 17 also treated Jenna, noted a rectal 18 tear, genitalia bruising to the anus 19 and a swollen labia. Dr. Loukras 20 suspected both child and sexual abuse. 21 Constable Steve Rudback of the 22 Peterborough Lakefield Community Police 23 Service took possession of Jenna's body 24 after she died. He made notes of his 25 observations of the body, including

1 injuries, and while with Dr. Thompson, 2 the nurse pointed out a thread in the 3 vaginal area, partially imbedded, 4 inserted, between the labia. Nurses 5 Sally Kater, Brenda Love, and Lori 6 Mason all noticed the hair in Jenna's 7 vaginal area." 8 Now, first of all, who was Constable 9 Steven Rudback? 10 MR. JOHN KIRKLAND: He's an officer on 11 our -- our force, and I think that he had been part of 12 the investigation just, sort of, on the periphery, was 13 just there for continuation to say the -- the body was 14 put in where it was put and just stayed with it until he 15 could be relieved. 16 MR. MARK SANDLER: All right. And 17 there's references that I just read to you about certain 18 observations that he made of the body and certain 19 observations that were made by medical and -- and nursing 20 personnel concerning the -- the geni -- the genitalia and 21 -- and a hair or -- or a thread, depending on how it's 22 described, on the body. 23 Were you present or involved in any of 24 those observations? 25 MR. JOHN KIRKLAND: No sir, I was called

1 out, I think it was just before 6 o'clock that morning. 2 MR. MARK SANDLER: Okay. And then if 3 you'd look with me at the following page of the overview 4 report, page 15, we actually see that that same day you 5 transported Jenna's body to the Hospital for Sick 6 Children for post-mortem examination. 7 Prior to transporting Jenna, you took 8 photographs and made a videotape of her body. Upon 9 arrival at the Hospital for Sick Children, you -- you 10 provided Dr. Charles Smith, who was scheduled to conduct 11 the autopsy, with the x-rays and ultrasound that had been 12 done at the Peterborough Civic Hospital. 13 These were ultimately read by the hospital 14 radi -- radiologist who noted that there was nothing 15 remarkable abou -- about them. And those facts are taken 16 from a supplementary occurrence report that you prepared 17 dated January the 29th, and does that accord with your 18 recollection -- 19 MR. JOHN KIRKLAND: Yes, sir. 20 MR. MARK SANDLER: -- what's contained 21 there in the overview report? 22 MR. JOHN KIRKLAND: Yes, sir. 23 MR. MARK SANDLER: Now, if I can take you 24 to Tab 12 of the overview re -- sorry, of the binder; 25 this is PFP101617, at page 1. And what I'm going to

1 suggest to you is that these are your notes for January 2 the 22nd of 1997, am I right? 3 MR. JOHN KIRKLAND: Yes, sir. 4 MR. MARK SANDLER: And I'd like to go 5 through the notes very briefly, if we may, and your 6 recollection is -- is quite correct that you see an 7 entry: 8 "6:30 picked up by..." 9 And: 10 "...the Maxwell Station." 11 And there's a reference to briefing. What 12 would that be a reference to? 13 MR. JOHN KIRKLAND: Well, they would have 14 just -- I think it was Ray Vandervelde -- he was an 15 Inspector at the time and in charge of both the criminal 16 investigation and the identification branch, he just 17 briefed me quickly on what -- what had taken place, that 18 there was a dead ba -- body at the hospital and that I 19 was good to go to Toronto with the body and be present 20 for the post-mortem. 21 MR. MARK SANDLER: Okay. And then we see 22 your attendance at 7:08 at the -- at the Civic Hospital, 23 and could you simply read for the Commissioner the entry 24 for that -- for that part of your work? 25 MR. JOHN KIRKLAND:

1 "Civil Ho -- Civic Hospital Morgue." 2 Just go on reading? 3 MR. MARK SANDLER: Yes, if you would. 4 MR. JOHN KIRKLAND: 5 "The baby was in a body bag..." 6 I can't even read my writing. 7 "...with..." 8 Isn't that awful? 9 MR. MARK SANDLER: I believe: 10 "...the body bag in morgue." 11 But -- 12 MR. SCOTT KIRKLAND: Yes. Thank you. 13 And she was wearing a candy-striped hospital gown. And 14 the IV and everything was still hooked up, still in place 15 -- it wasn't hooked up, I'm sorry, but it was still in 16 place. I didn't want to disturb any evidence, but 17 Inspector Vandervelde, and quite rightly so, wanted a 18 video and some photographs so he could give that to the 19 investigating officers so that they had something to -- 20 to go on. 21 So as disturbing as little as possible, I 22 -- I moved the body bag and opened the gown and took some 23 Polaroid pictures which he would have taken back to the 24 investigating officers and then took a video of the body. 25

1 MR. MARK SANDLER: Okay. And then -- and 2 then we see about three-quarters of the way down this 3 page, a reference to a briefing by Mark Balentine. And - 4 - and again, the briefing appears to extend through the 5 balance of this page and into the following page, am I 6 right? 7 MR. SCOTT KIRKLAND: Yes, sir. 8 MR. MARK SANDLER: And -- and it appears 9 to be -- include a history of an account that had been 10 given by the babysitter who had been with Jenna before 11 she died; am I right as to that? 12 MR. SCOTT KIRKLAND: Yes, sir. 13 MR. MARK SANDLER: And what I want to ask 14 you is this, and I -- and I won't ask you to read out all 15 of the history that is contained at page 1 and page 2 of 16 -- of your notes, but -- but you remember that I -- I 17 read to you just a few moments ago observations made by 18 Officer Rudback and by hospital personnel concerning a 19 curly hair or a thread, as well as suspicions of sexual 20 abuse. 21 Had any of that information, as far as you 22 know, been communicated to you as part of the briefing 23 session that preceded your attendance at the autopsy? 24 MR. SCOTT KIRKLAND: I don't recall 25 anything about that. And I wrote these notes within

1 minutes of -- of talking to -- to Mark. 2 MR. MARK SANDLER: All right. And -- and 3 we're addressing, not with a view to assigning blame, but 4 we're -- we're addressing some of these issues of 5 recording and communication of information with a view to 6 dealing systemically with some of these concerns. 7 So would it have been helpful 8 systemically, knowing what you know now about the issue 9 that's been raised about -- about potential sexual abuse 10 or -- or potential hair that was found on the body of 11 Jenna, if the kind of information that I read out to you, 12 as to observations at the scene, had been communicated to 13 you as part of the briefing before you attended the 14 autopsy? 15 MR. SCOTT KIRKLAND: Oh, it would be very 16 helpful. 17 MR. MARK SANDLER: Okay. Now, and I take 18 it it would be helpful for two (2) reasons. 1) You're 19 the Forensic Identification Officer who's going to be 20 taking photographs at the autopsy itself, am I right? 21 MR. SCOTT KIRKLAND: Yes, sir. 22 MR. MARK SANDLER: So that kind of 23 information might help in form the kinds of pictures that 24 are taken either at the Civic Hospital or at the autopsy, 25 right?

1 MR. SCOTT KIRKLAND: Yes, sir. 2 MR. MARK SANDLER: And as I gather it, 3 you were the Officer that was attending the autopsy, and 4 -- and there was no investigating officer that was with 5 you at the time; am -- am I right as to that? 6 MR. SCOTT KIRKLAND: Yeah. At that -- at 7 that time it wasn't our practice to send investigating 8 officers. I understand that's changed. 9 MR. MARK SANDLER: All right. So -- so 10 again, as the only Officer that would have been attending 11 the autopsy, to the extent to which you're providing 12 information to Dr. Smith, that kind of information that I 13 read out to you might have been of assistance to 14 communicate to him? 15 MR. SCOTT KIRKLAND: I would think it 16 would be of great deal of assistance. 17 MR. MARK SANDLER: Okay. And we know 18 that -- that the autopsy was performed at the Hospital 19 for Sick Children. Was it the only autopsy being 20 performed in -- in the room or -- or can you say? 21 MR. SCOTT KIRKLAND: I'm -- I think there 22 had been one prior to the lunch period, but I -- I can't 23 say with any absolute certainty. There was -- there was 24 -- it wasn't a case of somebody just leaving as I was 25 coming in sort of thing, so.

1 MR. MARK SANDLER: Okay. Do you recall 2 what, if any, information you would have communicated to 3 Dr. Smith before the autopsy commenced? 4 MR. SCOTT KIRKLAND: I was taken -- or 5 given -- I think it was an x-ray and ultrasound, and I 6 gave those to him. And -- and also, I would have 7 communicated what was in my notes as far as the briefing 8 was concerned. 9 MR. MARK SANDLER: All right. And -- and 10 I know we're going back a long time, and you -- you just 11 do the best you can, but do you recall whether or not Dr. 12 Smith took any notes of the information that you 13 communicated to him or can you say? 14 MR. SCOTT KIRKLAND: I -- I don't think 15 he did, but I... 16 MR. MARK SANDLER: Okay. 17 MR. SCOTT KIRKLAND: But he did ask ques 18 -- like he did understand what -- what I had, the 19 information that I had, so. 20 MR. MARK SANDLER: All right. And you've 21 already said that the investigating officer was not 22 present during the autopsy, and you've told the 23 Commissioner that reflected the practice, at least within 24 the police service at that point in time. 25 Do you recall roughly when that practice

1 changed? 2 MR. SCOTT KIRKLAND: Actually, it had 3 changed by the -- the next time I went down to Toronto, 4 and I -- I can't recall whether it was at the Centre of 5 Forensic Pathology or at Sick Childrens again, but there 6 was an investigation officer that came with me at that 7 time. 8 MR. MARK SANDLER: Okay. 9 MR. SCOTT KIRKLAND: Ken Jackman 10 (phonetic). I think it was at the Centre of Foren -- 11 Forensic Pathology. I'm pretty certain that's where that 12 was. 13 MR. MARK SANDLER: Okay. Now did you 14 take notes of the autopsy itself? 15 MR. SCOTT KIRKLAND: As -- as -- while 16 the autopsy is going, I'm not. I'm just focussing on -- 17 on taking pictures as indicated to me, where they should 18 be taken. 19 Any notes that I take would be taken 20 subsequent to that. 21 MR. MARK SANDLER: All right. 22 MR. SCOTT KIRKLAND: At the end of the 23 autopsy. 24 MR. MARK SANDLER: And if we can go to 25 page 3, and again, I'm using those PFP numbers that are

1 at the top of the page rather than the pagination of your 2 notebook. We actually see in the middle of the page: 3 "13:00 hours, post-mortem begins, 4 conducted by Dr. Charles Smith with the 5 assistance of Don Perrin and Jimmy 6 Choi." 7 As I understand it, those were pathology 8 assistants that were present at the autopsy? 9 MR. SCOTT KIRKLAND: Yes, sir. 10 MR. MARK SANDLER: And could you read out 11 for the Commissioner, what notes you've -- you did take 12 concerning the autopsy itself, and then I'm going to ask 13 you some questions about them if I may. 14 MR. SCOTT KIRKLAND: 15 "Photographed the baby, there's 16 numerous bruises -- bruising all over 17 the body, with varying stages of age. 18 There's discolouration ranging from 19 deep purple to yellowish brown. Some 20 abdominal swelling observed. Skin was 21 waxy and pale. There's two (2) areas 22 of abrasion at the vaginal opening. 23 Unusual bruising at left heel and 24 between the toes of the left foot. 25 After incision, large quantity of blood

1 in the abdominal cavi -- cavity 2 indicated extreme internal bleeding. 3 Also evidence of trauma internally. 4 Evidence of some bruising and bleeding 5 inside mouth, nose and some stippling 6 in the eyes. After internal organs 7 removed, there's evidence of trauma. 8 Discolouring at the back, inside of the 9 rib cage. Once scalp incision's made 10 at the back of the head, obvious 11 evidence of hemorrhaging. [I had 12 difficulty spelling hemorrhaging] -- 13 MR. MARK SANDLER: We all do. 14 MR. SCOTT KIRKLAND: 15 -- Dr. Smith concludes that victim 16 suffered a blow with a blunt object. 17 Could be fist or foot, causing a 18 rupture in the duodenal, pancreas and 19 liver. [Excuse me] There was no 20 evidence that this injury had begun to 21 heal. It occurred within a few hours 22 prior to death. Obvious evidence as 23 well of continuous abuse." 24 MR. MARK SANDLER: All right. Now 25 several questions arising out of that. It would appear

1 from -- from what you've just read, that -- that you've 2 placed in your notebook some detailed description of -- 3 of the injuries or observations that were being made 4 during the autopsy. 5 The question I have: Were these 6 observations that you were independently making and 7 recording, or were these observations as described by Dr. 8 Smith in the course of the autopsy in which you're 9 reproducing in your notebook? 10 MR. SCOTT KIRKLAND: Once the autopsy 11 began, it would be what Dr. Smith was indicating to me. 12 MR. MARK SANDLER: Okay. And one (1) of 13 the items that -- that you read out at page 3, was "two 14 (2) areas of abrasion at vaginal opening." 15 And again, I take it that would have been 16 a description that was provided verbally by Dr. Smith in 17 the course of the autopsy, and later recorded by you? 18 MR. SCOTT KIRKLAND: Yes, sir. 19 MR. MARK SANDLER: Now you made reference 20 to what you were doing during the autopsy itself. You 21 said that you were taking photographs. How did you 22 determine what, if any, photographs to take during the 23 autopsy ? 24 MR. SCOTT KIRKLAND: Well, the way Dr. 25 Smith always operated, at least when I was there, he had

1 a photographer with him. When he wanted something 2 photographed, he would tell this photographer, the 3 photographer would take his picture and then the two (2) 4 of them would sort of turn to me as if to say "your turn" 5 and I would -- I would take the picture of the same area. 6 MR. MARK SANDLER: Okay. So the specific 7 photographs that you took in the course of the autopsy 8 were in addition to those that were being taken by the 9 pathology assistant. 10 Am I right? 11 MR. SCOTT KIRKLAND: That's right. I 12 don't think he was an assistant, sir -- 13 MR. MARK SANDLER: Ah. 14 MR. SCOTT KIRKLAND: -- I think he was a 15 photographer employed strictly for that, but I'm not 16 absolutely sure, but... 17 MR. MARK SANDLER: Okay, fair enough. 18 And secondly, the decision as to which 19 photographs were taken was being directed by Dr. Smith? 20 MR. SCOTT KIRKLAND: Yes, sir. 21 MR. MARK SANDLER: And did that accord 22 with the practice that you had employed as a forensic 23 identification officer for other autopsies generally? 24 Namely, that there was both the police 25 photographer and a photographer who was there at the

1 instance of the pathologist and also that the pathologist 2 was directing the kinds of photos to be taken by the 3 police officer. 4 MR. SCOTT KIRKLAND: The pathologist 5 would always determine which photographs were taken but 6 the only time I ever experienced a photographer being 7 there, other than myself, was -- was at Dr. Smith's 8 autopsies. I -- I'd never seen that before. 9 MR. MARK SANDLER: Okay. So in the -- 10 for example, when adult -- adults were the subject of an 11 autopsy that wasn't being performed by Dr. Smith, you 12 were general -- you were the only photographer that was 13 present taking photographs, as you recollect it? 14 MR. SCOTT KIRKLAND: Yes, sir. 15 MR. MARK SANDLER: Okay. Now, how did 16 you know -- how were you labelling the photographs that 17 were being taken? In other words, how did you know what 18 was being shown by the photographs that you were taking? 19 MR. SCOTT KIRKLAND: I really didn't. I 20 -- I could only take or say something very general about 21 the photograph; that it was taken internally. But I -- I 22 don't have the knowledge and didn't have then for sure, 23 to be able to say this is a duodenal and it's -- sort of 24 thing, so... 25 I actually, I don't know if this is what

1 you're getting at but much later I asked one (1) of our 2 identification officers who was going down to the centre 3 -- or to the children's -- Sick Children's Hospital, and 4 he was going to -- whatever he was going to do he was 5 going to be with Dr. Smith, and asked him if he would 6 take these photographs and so that Dr. Smith could just 7 quickly jot on the back what they were. Because he would 8 be the one (1) that would be using them, not -- I 9 wouldn't be, and then I could put a proper label on it, 10 put what that was. 11 MR. MARK SANDLER: All right. And did 12 that happen? 13 MR. SCOTT KIRKLAND: It did. It came -- 14 but it wasn't really very helpful. It was very general 15 terms what he had put too, so... 16 MR. MARK SANDLER: All right. And is 17 that the practice that -- that had been generally 18 employed by you as a forensic identification officer? 19 In other words, the subsequent labelling 20 of the photographs as opposed to some contemporaneous 21 measure to -- to identify what the photographs were? 22 MR. SCOTT KIRKLAND: I would normally do 23 it myself as best I could. I actually can't tell you why 24 I, at the spur of the moment, asked Randy to take these 25 down to Dr. Smith, except that I thought it would be

1 helpful to him. That he would see them and be able to 2 identify them in his way and -- because he would be the 3 one (1) using it, but... 4 MR. MARK SANDLER: Okay. Did anybody, 5 whether Dr. Smith or anybody else, draw your attention to 6 a hair, fibre or thread, however described, found in the 7 genital region during the autopsy? 8 MR. SCOTT KIRKLAND: No. The first I 9 heard of that was much later, and I think maybe even 10 after I retired, and it was identified to me as a fibre. 11 And they asked -- I think it was Randy Donaldson 12 (phonetic) actually, he was a member of the 13 Identification, asked me about that. 14 MR. MARK SANDLER: All right. Now we've 15 -- we've seen some evidence in the documents that the -- 16 that the hair may have been captured incidentally in 17 photographs that were taken during the autopsy, either -- 18 either by the person who was there at Dr. Smith's 19 instance or by you. 20 Were you ever asked to specifically 21 capture the hair on film? 22 MR. SCOTT KIRKLAND: No, sir. 23 MR. MARK SANDLER: And, had you been 24 asked to do so, how would it have been done differently 25 than it -- than it was captured in the photographs?

1 MR. SCOTT KIRKLAND: Well, I -- I would 2 have taken two (2) photographs of it. I would have taken 3 it far enough way so that you can identify whereabouts on 4 the body it was and then I would have taken a photograph 5 in situ, close up, right on the vaginal area but focussed 6 on the hair. 7 MR. MARK SANDLER: Okay. Now, did you 8 separately record the exhibits that were being collected 9 from the body at the autopsy? 10 MR. SCOTT KIRKLAND: No, sir. 11 MR. MARK SANDLER: Can you -- can you 12 advise the Commissioner what the practice was during the 13 time that you were a forensic identification officer as 14 to how the exhibits that were being collected from the 15 body were -- were dealt with and -- and recorded? 16 MR. SCOTT KIRKLAND: Well, if -- if there 17 was anything that was I guess to do with pathology, any 18 of the body fluids, anything to -- that was going to 19 ultimately go to toxicology, anything -- the information, 20 I guess, that Dr. Smith would have needed, he would have 21 -- or his office would have done that; the collection was 22 not made by me, nor were they sent to the centre by me. 23 MR. MARK SANDLER: So just stopping there 24 for a moment. So, insofar as say Dr. Smith is collecting 25 blood for submission to toxicology, would you have any

1 involvement in either the labelling, or the 2 identification, or the transmittal of -- of those 3 exhibits? 4 MR. SCOTT KIRKLAND: No, sir. 5 MR. MARK SANDLER: All right. Were there 6 exhibits? What about -- what about, say, an article of 7 clothing, would that be dealt with differently? 8 MR. SCOTT KIRKLAND: Yeah, had there been 9 an article of clothing, it would have been turned over to 10 me, I would have seized it and I would have taken it back 11 to the -- our -- our station and turned over ultimately 12 to an evidence officer. 13 On major crimes there was an evidence 14 officer, and this had been a practice for years, 15 assigned, and that was his or her sole function, did 16 nothing else in the investigation but control the 17 evidence, and any submissions that were made to CFS would 18 have been done by that evidence officer, and any 19 transporting of evidence would have also been done by. 20 MR. MARK SANDLER: All right. Now what 21 if a determination that had made that a -- that a hair or 22 a fibre should be submitted to the Centre of Forensic 23 Sciences for examination, how would that be dealt with? 24 MR. SCOTT KIRKLAND: I would have taken 25 it and I would have -- I carry evidence bags in -- in my

1 kit and I would have placed in an evidence bag and it 2 would have been taken -- I would have initialled it and 3 taken it back. 4 And this is after it would have been 5 photographed in situ and then it would have taken back 6 and turned over to the evidence officer. 7 MR. MARK SANDLER: All right. Now, there 8 has been some documentation of -- of Dr. Smith's account 9 of what transpired at this autopsy, and -- and I'm going 10 to read to you what -- what has been attributed to him at 11 various times, and then I'm going to ask you to comment 12 upon that if you -- if you will. 13 And the first entry that I'm going to take 14 you to is at tab 25 of the volume that you have in front 15 of you, PFP053096. And I can tell you that this is a 16 response that Dr. Smith submitted to the College of 17 Physicians and Surgeons to a complaint that had been 18 issued by Brenda Waudby in connection with the Jenna 19 case. 20 And if you would go with me to page 2 of 21 this document under the heading "Sexual abuse 22 examination" and I'm going to ask you about this 23 paragraph and I'm going to ask Sergeant Charmley about 24 this paragraph shortly, as well. 25 And Dr. Smith writes this:

1 "At the time of the post-mortem 2 examination a sexual abuse examination 3 was performed by me. In this I was 4 assisted by Dr. Dirk Huyer, the 5 Director of the Suspected Child Abuse 6 and Neglect Scan Program at the 7 Hospital for Sick Children. He and I 8 agreed that there was no evidence of 9 abuse. Nevertheless, appropriate 10 sampling was undertaken. The police 11 who are responsible for the submission 12 of evidence in a homicide investigation 13 chose not to submit this material for 14 analysis. It remained under seal in my 15 care. Following Ms. Waudby's complaint 16 to the College, I have asked the police 17 investigators to reconsider their 18 decision, and they agreed to do so. 19 Subsequently, a member of the 20 Peterborough Police Service obtained 21 the material from me and he gave it to 22 the Office of the Chief Coroner for 23 safekeeping until a final decision is 24 made on whether it will be examined." 25 And then -- and I'll -- and I'll read you

1 all of these portions and then my questions will cover 2 all of them, if I may. 3 If you'd go to tab 38, and tab 38 is 4 PFP116087, and I'm looking at page 1, and this is a 5 report, a newspaper report, concerning an appeal that 6 brought by Brenda Waudby from a finding that had been 7 made by the College of Physicians and Surgeons. And this 8 appeal made its way to the Health Professions Appeal and 9 Review Board. 10 And -- and according to the media - and I 11 underline that - according to the media only it's 12 reflected in the second column: 13 "Smith testified one police officer 14 refused the hair because it was 15 contaminated." 16 And then we see on the next page. Part of 17 this is cut off. 18 "The committee could find no evidence 19 to dispute the information provided by 20 Smith. Smith never testified he didn't 21 see a hair on Jenna's body the Board 22 found. He denied being aware of a 23 pubic hair. The hair found was a trunk 24 hair from a person's back, chest, or 25 arms."

1 There's also a reference to this issue at 2 Tab 48. And Tab 48 and we don't need it up on -- on the 3 screen. This is the evidence that given by Dr. Cairns in 4 these proceedings. And Dr. Cairns testified on November 5 the 27th of 2007. 6 And at page 87 -- so if you'd go to page 7 87 of the testimony, Dr. Cairns is describing what Dr. 8 Smith purported to say to Dr. Cairns and to Jeff Mainland 9 in a meeting that was held some time after your 10 involvement in these matters. And Dr. Cairns reflects at 11 the top of page 87: 12 "The meeting begins with -- this isn't 13 verbatim, but we're very upset that 14 you're not supporting Charles. Why 15 aren't you supporting me? Well, 16 Charles the information I have at this 17 time is you did the original autopsy on 18 Jenna, information now that you 19 discovered a hair or fibre, some object 20 of that nature, in the vaginal area of 21 Jenna, and you've indicated, and I've 22 confirmed with the police, that you 23 took that hair and fibre and that their 24 Police Identification Officer refused 25 to take that from you. I said, I find

1 that a preposterous proposition. I 2 just can't understand that at all." 3 And then if you go to the next page, page 4 88, and again, Dr. Cairns is relating that, and he said: 5 "Well, no, he refused to take it, so I 6 kept it. 7 And I said, Well, that's an extremely 8 serious issue. Where do you have it in 9 your report, your autopsy report, that 10 that occurred? 11 He said, It's not in my autopsy report. 12 I said, Do you have rough notes that 13 indicate that? 14 He said, No, I have no rough notes. 15 Therefore, in turn, I said, do you not 16 feel the critical situation? I've got 17 great difficulty with the fact that 18 you're telling me that he wouldn't take 19 it, but would that not cause you to put 20 a huge note in massive letters and 21 highlighted to that effect..." 22 And so on. And then finally, I'm going to 23 take you Tab 56, if I may, which is a memorandum, and 24 this is 302819 at page 1. And this is a memorandum that 25 was sent by email from Brian Gilkinson, a Crown attorney

1 involved in the Jenna case to one of the senior Crown 2 attorneys, John Sotirakos, re: meeting today, re: the 3 Waudby/Jenna matter. 4 And you'll see about eight (8) lines down 5 it reflects: 6 "Dr. Cairns told us Dr. Smith in 7 responding to the College said that he 8 took trace evidence, put it in an 9 envelope and offered it to the police. 10 And the police were not interested in 11 taking it. However, Dr. Smith made no 12 notation of this trace evidence in his 13 autopsy report or the rough notes he 14 made at the time. He asserted that he 15 had the hair with him at the prelim, 16 and in fact discussed it with the 17 defence counsel. Dr. Cairns spoke to 18 Dave Thompson; he has no recollection 19 of the hair being involved in this 20 case; it was not brought to his 21 attention by Dr. Smith. Dr. Cairns has 22 problems with the position taken by Dr. 23 Smith. He was specifically asked if 24 sexual assault evidence was considered 25 or an examination undertaken to resolve

1 the possibility and he professed no 2 recollection of having done such an 3 exam. It would have been natural for 4 him to mention the hair at that stage 5 of the inquiry if he had it or thought 6 it significant. He asserted he had a 7 bit of a knock down, drag out debate 8 with the police officer over whether 9 the police would take the hair at the 10 time of post-mortem. 11 Scott Kirkland, the only officer there 12 has no recollection of the hair being 13 seen, acquired or discussed during the 14 autopsy. He's an experienced 15 identification officer. We all find it 16 remarkable that the police who 17 generally seize everything and often 18 send too much to CFS would not seize 19 the hair if it was discussed as 20 relevant. I've spoken to Jim Hauraney 21 and he denies that any conversation 22 occurred between Dr. Smith and himself 23 on the subject of the hair." 24 So I want to ask you to comment on what 25 has been attributed, either said by Dr. Smith or

1 attributed to -- to Dr. Smith. 2 Did you ever at any time during this 3 autopsy refuse to take a sample that -- that was 4 suggested be taken by Dr. Smith? 5 MR. SCOTT KIRKLAND: No, sir. 6 MR. MARK SANDLER: Did you ever have an 7 argument over that issue? 8 MR. SCOTT KIRKLAND: No. 9 MR. MARK SANDLER: All right. Would you 10 ever refuse to take a sample that was proposed to be 11 taken by a forensic pathologist? 12 MR. SCOTT KIRKLAND: No, it would be 13 against all my training, all my experience, my personal 14 ethics and it wouldn't even make any sense. 15 MR. MARK SANDLER: All right. And you 16 say "it wouldn't make any sense," why is that? 17 MR. SCOTT KIRKLAND: Well, it would be 18 just common sense. If there's something there that could 19 possibly be evidence, obviously it would be taken. It 20 would have to be taken. It just -- 21 MR. MARK SANDLER: All right. 22 MR. SCOTT KIRKLAND: -- doesn't make any 23 sense that it would not be. 24 MR. MARK SANDLER: And similarly, did you 25 ever make an independent decision or a decision on your

1 initiative in this case not to submit the hair for 2 analysis? 3 MR. SCOTT KIRKLAND: I didn't know it 4 existed, so no. 5 MR. MARK SANDLER: Okay. And would you 6 make such a decision as the forensic identification 7 officer on the case? 8 MR. SCOTT KIRKLAND: No, no. 9 MR. MARK SANDLER: Now I'm going to turn 10 from you, if I may, to Sergeant Charmley. 11 And you heard the passages that I read out 12 to -- to Officer Kirkland and I'm going to return to them 13 in the context of your involvement a little bit later, if 14 I may. But, if we can proceed chronologically. 15 As I understand it you were asked by the 16 Chief of Police on July the 11th of 2001 to review the 17 prior investigation that had taken place in the Jenna 18 matter. 19 Am I right? 20 MR. LARRY CHARMLEY: That's right. 21 MR. MARK SANDLER: And at that point in 22 time the charges against Brenda Waudby had been withdrawn 23 by the police and no charges against anyone else had yet 24 been laid -- 25 MR. LARRY CHARMLEY: That's correct.

1 MR. MARK SANDLER: -- am I right? 2 MR. LARRY CHARMLEY: Yes. 3 MR. MARK SANDLER: And I won't take you 4 to it now but the purpose of the review, as described in 5 your review summary, was to have someone not involved in 6 the initial investigation take a fresh and unbiased look 7 at everything to see if there was anything else that 8 could be done in the case. 9 And does that accurately set out what you 10 perceived your role to be in the case? 11 MR. LARRY CHARMLEY: Yes, it does. 12 MR. MARK SANDLER: And did you proceed 13 that way? 14 MR. LARRY CHARMLEY: Yes, I did. 15 MR. MARK SANDLER: And now there is a -- 16 you've heard a -- a reference in one of the excerpts that 17 I read to Officer Kirkland that came from a response to 18 the CPSO in December 2001 by Dr. Smith, and if I can take 19 you to -- to that passage again. And it's at Tab 25, 20 it's PFP053096 at page 2. 21 And again, I simply wanted to deal with 22 this one (1) item at this point in time and then we'll 23 return and deal with events chronologically after I've 24 completed my questioning of Constable Kirkland. 25 But you recall I read this passage at page

1 2, and part of the passage said: 2 "That -- that the police who are 3 responsible for the submission of 4 evidence in a homicide investigation 5 chose not to submit this material for 6 analysis." 7 And you've heard what Constable Kirkland 8 had to say about that. 9 "It remained under seal in my care. 10 Following Ms. Waudby's complaint to the 11 College, I have asked the police 12 investigators to reconsider their 13 decision and they agreed to do so. 14 Subsequently, a member of the police 15 police service -- Peterborough Police 16 Service obtained the material from me 17 and he gave it to the Office of the 18 Chief Coroner." 19 Does that accurately represent how it came 20 about that that hair was turned over to the Peterborough 21 Police Service? 22 MR. LARRY CHARMLEY: Not from my 23 recollection, no. 24 MR. MARK SANDLER: All right. And what 25 is inaccurate about that account?

1 MR. LARRY CHARMLEY: Well, if he's 2 referring to asking police investigators to reconsider, 3 there's no note of that anywhere by any other 4 investigator and it certainly wasn't to me, who would 5 have been reviewing the case at the time. 6 I, in fact, was the one that called him to 7 inquire about the hair. 8 MR. MARK SANDLER: All right. And when 9 you first made inquiries of him of the hair, whether 10 described as a hair or fibre, and we'll come to that a 11 little bit later, did he know at that point in time for 12 certain whether he still had it? 13 MR. LARRY CHARMLEY): No, he did not. He 14 believed he had it and he was going to have to check his 15 files and get back to me. 16 MR. MARK SANDLER: All right, and who had 17 initiated that contact with Dr. Smith? 18 MR. LARRY CHARMLEY): I had. 19 MR. MARK SANDLER: Okay. Now, we're 20 going to come back, as I say, to that in the context of 21 the chronology, but if I can return to the autopsy and 22 ask some additional questions to Officer Kirkland. 23 There was references, you've heard, to Dr. 24 Huyer, participating in a sexual abuse examination during 25 the course of the autopsy and that appropriate sampling

1 was taken. 2 And your notes refer to the fact that Dr. 3 Smith conducted the autopsy with the assistance of Don 4 Per -- Perrin and Jimmy Choi. 5 Have you made any reference to your notes 6 to the participation of Dr. Huyer? 7 MR. SCOTT KIRKLAND: No, sir. 8 MR. MARK SANDLER: Can you assist the 9 Commissioner as to whether or not Dr. Huyer was consulted 10 at any point during the autopsy? 11 MR. SCOTT KIRKLAND: I -- I do recall in 12 one (1) of the autopsies that I was at that he was 13 talking to Dr. Smith at the back of the room and, as you 14 recall, you had shown me something on TV and I recognized 15 him -- or on the internet. 16 MR. MARK SANDLER: So just stopping there 17 so that those who weren't there -- 18 MR. SCOTT KIRKLAND: Okay. 19 MR. MARK SANDLER: -- will -- will 20 understand what your testimony's all about. When you 21 here meeting with the Commission at the end of last week, 22 Dr. Huyer was actually testifying and -- and you saw his 23 -- his image on the screen and -- and that caused you to 24 remark that you had seen him before. 25 MR. SCOTT KIRKLAND: Yes. Yes, sir, I --

1 I recognized him. If I -- I probably would not have 2 known who he was if it was out of context, but I realized 3 that I had seen him and had seen him talking to Dr. Smith 4 at some point, but I honestly can't say what -- which 5 case that was, but I -- I can say that I -- I'm certain I 6 would have put it in my notes had it been this one. 7 MR. MARK SANDLER: Okay. Excuse me for a 8 moment. 9 10 (BRIEF PAUSE) 11 12 MR. MARK SANDLER: Now, apart from Dr. 13 Huyer's participation or lack of participation in this 14 particular autopsy, was any sexual assault or -- or rape 15 kit used during the autopsy? 16 MR. SCOTT KIRKLAND: Not to my knowledge, 17 sir, no. 18 MR. MARK SANDLER: Were any swabs of the 19 genital area taken during the autopsy that you recall? 20 MR. SCOTT KIRKLAND: I didn't see any, 21 sir, no. 22 MR. MARK SANDLER: Okay. Now, did you 23 continue to perform any role in the investigation that 24 followed the completion of the autopsy? 25 MR. SCOTT KIRKLAND: No, sir. Once I

1 returned -- there's -- there's three (3) of us in the -- 2 our identification branch and the other two (2) had 3 already been assigned to the crime scene, and -- and I 4 have -- of course, was had to be left to do whatever 5 other work was to be done, so, no, I -- 6 MR. MARK SANDLER: Okay. So I'm going to 7 turn from you, if I may, and back to Sergeant Charmley. 8 And you've already described how it was 9 and when it was that you became involved initially 10 reviewing the Jenna death, and I can tell you, Sergeant, 11 that the parties have already received very, very 12 detailed homicide review reports that were authored by 13 you and are contained in the database, so I -- I don't 14 intend to -- to go through all of the aspects of this 15 investigation, much of which has already been heard or 16 read about by the Commissioner in either previous 17 testimony or in the overview reports themselves, but I'm 18 -- I'm going to ask you some questions that focus on some 19 of the continuity issues that I've been discussing with 20 Constable Kirkland earlier on today. 21 So if I can take you to Tab 5 of the first 22 in a series of homicide review reports that you prepared, 23 and it's PFP011009. And if we can go to page 28. And at 24 page 28 of -- of your review, you've outlined the 25 commencement of your full-time review on July the 16th of

1 2001. 2 And with the benefit of this entry, could 3 you describe for the Commissioner how it was that the 4 issue of sexual assault or the hair became known to you? 5 MR. LARRY CHARMLEY: Yeah. When I was 6 assigned to review this case, Mr. Hauraney, who is Brenda 7 Waudby's lawyer for the initial investigation, he wanted 8 to speak with me about the investigation and bring some 9 things to my attention. 10 So we had arranged for the 16th of July to 11 meet at the police station, and on that date, Mr. 12 Hauraney attended the police station, and he advised me 13 of some concerns he had with the initial investigation; 14 one of which included that he believed that there may 15 have been a sexual assault and the other had to deal with 16 the hair as well, he believed had been overlooked, as 17 well as a couple of other issues. 18 MR. MARK SANDLER: All right. And -- and 19 if we can then -- and -- and were you prepared to -- to 20 follow up on -- on the issues that had been raised by Mr. 21 Hauraney through your own review of the case? 22 MR. LARRY CHARMLEY: Absolutely. 23 MR. MARK SANDLER: And if you'd go to -- 24 to page 30 of your review, we see an entry on August the 25 14th of 2001. And it reflects that you attended the York

1 Regional Police Service, that -- that a technician there 2 attempted to enhance two (2) videotapes. 3 One (1) was a videotape that was taken by 4 Constable Kirkland of Jenna's body in the morgue before 5 she was transported for autopsy in the hope that a hair 6 might be observed in the vaginal area. Something similar 7 to a hair was observed extending from between the labia, 8 but could not be confirmed to be a hair. 9 And then you've also reflected that a 10 second was a video taken by Constable Donaldson 11 concerning the -- the scene at -- at the household that - 12 - that was involved. And does that accurately represent 13 steps that you took? 14 MR. LARRY CHARMLEY: That's some of the 15 steps I took, yes. 16 MR. MARK SANDLER: All right. And in the 17 next paragraph you've reflected that you also located 18 photographs that spoke to this issue. 19 So could you describe, with the benefit of 20 -- of your notes, what it was that -- that you learned as 21 a result of your investigation? 22 MR. LARRY CHARMLEY: Well, from -- from 23 reviewing some of the hospital notes at the time that 24 Jenna was taken to the hospital on the night of her 25 death, there was comments made in the emergency physician

1 report that there was a hair in the vaginal area, as well 2 as a couple of the nurses had made mention with regards 3 to a hair in that area. 4 So I started to review everything that we 5 had to see if there was anywhere else that that was 6 located. I did locate, in Constable Rudback's notes, his 7 mention of a nurse pointing out what she believed to be a 8 thread, and what he put in his notes he believed to be a 9 thread sticking out from the vaginal area. 10 I assumed that we might have photographs 11 of that from the autopsy. So I proceeded to look at the 12 vide -- first of all, the video that was taken by 13 Constable Kirkland in the morgue at Peterborough Civic 14 Hospital, and it was a bit blurry, but it did appear that 15 there was something that could be similar to a hair 16 sticking out of the vaginal area. 17 So I had arranged with York Regional 18 Police service, who have very good video enhancement to 19 see what we could do to enhance that video. 20 Unfortunately, it didn't really help a whole lot other 21 than it appeared that it -- it could be a hair from the 22 vaginal area or in the vaginal area. 23 When I was looking through all the autopsy 24 photographs that Constable Kirkland had taken, I didn't 25 find it -- there was specific photos that were taken of

1 the vaginal area that did not depict a hair; however, 2 there was one (1) photo taken that was obviously taken to 3 depict a -- a bruise on Jenna's right knee. 4 And on the edge of that photo it actually 5 encaptured the vaginal area, and you could see what 6 appeared to be a -- a small curly hair sticking out of 7 the vaginal area. And there was just the one (1) photo 8 of that, and it did not appear that it was taken for the 9 purpose of -- of capturing the hair. 10 So as a result of that and from going 11 around and reinterviewing the -- the emergency doctor and 12 the nurses -- most of whom recalled seeing the hair when 13 Jenna was at the emergency room, I was getting to the 14 point where I -- I assumed that this hair must have been 15 lost somewhere because it wasn't noted anywhere. 16 So pretty much as a last resort, I called 17 Dr. Smith -- 18 MR. MARK SANDLER: Okay, and -- 19 MR. LARRY CHARMLEY: -- to get his 20 recollection of it. 21 MR. MARK SANDLER: And we'll get there in 22 a moment. Before we get to your conversation with Dr. 23 Smith, you've reflected at page 31 of -- of your review, 24 that on September the 18th of 2001, you -- you and Staff 25 Sergeant Tucker met with Dr. Porter and Dr. Clark at the

1 Office of the Chief Coroner. 2 A medical brief was provided to Dr. Porter 3 as was prepared by you. And -- and we've seen from the 4 database that it was a very, very extensive brief that 5 contained a lot of information as summarized here by you. 6 But along with the brief, you submitted a 7 list of questions that you wanted listed, is that right? 8 MR. LARRY CHARMLEY: That's correct. 9 MR. MARK SANDLER: And -- and those 10 questions are -- are reproduced at page 31 and page 32 of 11 your review, am I right? 12 MR. LARRY CHARMLEY: That's correct. 13 MR. MARK SANDLER: And I have to say to 14 you, an officer who testified yesterday was commended for 15 being prescient about the kinds of questions that he 16 generated for -- to be directed to Dr. Smith. 17 And -- and I have to say, these are very, 18 very detailed questions that raise a number of the issues 19 that invite consideration in this case as well. Items -- 20 Item 2 reflects: 21 "Was Jenna sexually assaulted in her 22 vaginal/rectal area? If not, how can 23 comments by other nurses -- doctors and 24 nurses be explained? 25 [3] Is there an explanation for the

1 apparent curly hair or thread in 2 Jenna's vaginal area, and why was it 3 not mentioned in the post-mortem 4 report?" 5 And those were but two (2) of the 6 questions that have been generated as a result of your 7 review of the file? 8 MR. LARRY CHARMLEY: That's correct. 9 MR. MARK SANDLER: And what is 10 interesting is that at page 32 of your review, after 11 you've listed these questions, you've said that: 12 "Several of these questions have since 13 been verbally answered, as will be 14 discussed later, but Detective 15 Constable Charmley is still waiting for 16 a written response to these questions 17 for the file." 18 MR. MARK SANDLER: Why did you think it 19 was important to have a written response to the questions 20 that have been generated? 21 MR. LARRY CHARMLEY: Well, in that sense, 22 there can be no confusion as to what opinion somebody has 23 provided, and especially as I've learned in the medical 24 field, which I have virtually no training in other than 25 minimal through investigations I've done through the

1 police service, and at police college. 2 I -- my vocabulary and understanding of 3 terms in medicine are nowhere near the opinions that you 4 often get. So I certainly would want -- I wouldn't want 5 to misinterpret something that was told to me. 6 And I'd also, for cases simply like we're 7 here right now, it's -- it's good to have something 8 written down on paper -- 9 MR. MARK SANDLER: Right. 10 MR. LARRY CHARMLEY: -- as a response. 11 MR. MARK SANDLER: Now I'm going to 12 direct a question to you that was directed to the officer 13 yesterday as well, and that is, what do you do as an 14 investigating officer with a report from the -- from a 15 forensic pathologist -- or rather forensic scientist 16 that's heavily laden with terms with which you're not 17 usually familiar? 18 How does a police officer deal with that? 19 Is -- is it a concern generally, and what comments would 20 you make about that? 21 MR. LARRY CHARMLEY: Well, for me it was 22 a concern, because in Peterborough, we don't do a lot of 23 homicides. We don't do a lot of the autopsy-type 24 investigations, and if we do, because of the number of 25 people in our service, quite -- there's quite often a

1 turnover in the people that would be assigned those 2 investigations. 3 Like quite typically if -- if you're in 4 our Criminal Investigation Branch, you'll be there for 5 three (3) to five (5) years, and then somebody else will 6 come in. So the training you get that -- when somebody 7 else comes in, they have to receive that training again. 8 But perhaps in a place like Toronto, or 9 where they're doing them a lot, and they're assigned a 10 position, they might understand some of these records 11 very easily. For me, in my initial review, I immediately 12 had to get out the medical dictionary. 13 I started reading Dr. Smith's post-mortem 14 examination report, and it was way above my head to 15 understand most of it. So I had the medical dictionary 16 out and I found I was -- one (1) sentence that he 17 indicated, I'd look up a word, and then I'd have to look 18 up another word to explain even that word, and -- so 19 that's -- that's the difficulty I found. 20 And eventually, I mean, I would -- I would 21 present that to the Coroner's Office, some of those 22 issues there, and -- and generally, they were pretty 23 decent in explaining it in more lay terms what some of 24 the terms meant that were of importance. 25 Not the entire report, but certainly it is

1 difficult to understand when you don't have that type of 2 training background. 3 MR. MARK SANDLER: Just stopping there 4 for a moment. I know that one (1) practice that has been 5 adopted by some experts in -- in forensic areas, has been 6 to accompany their reports with a glossary of commonly 7 used terms. 8 Would that be helpful to you? 9 MR. LARRY CHARMLEY: It would be helpful. 10 I don't know if it would be enough, but I know it would 11 be helpful. 12 MR. MARK SANDLER: It would be a start, 13 at the very least? 14 MR. LARRY CHARMLEY: It would be a start. 15 MR. MARK SANDLER: Okay. 16 COMMISSIONER STEPHEN GOUDGE: Can I ask 17 another question, Sergeant Charmley? I mean in a number 18 of -- well, we had a bit of a discussion yesterday about 19 the possibility of having some kind of centralised 20 information bank for investigating officers throughout 21 the Province to be able to access officers who had 22 developed and were able to sustain a particular 23 expertise, for example, in pediatric deaths. 24 If you had had access to that and could 25 have picked up the phone and called somebody in Toronto,

1 for example, would that have helped your ability to 2 understand and bridge this communication gap? 3 MR. LARRY CHARMLEY: That -- that would 4 have helped. I think I would have even liked to taken it 5 a step further and had a medical professional to give me 6 that advice rather than a -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. LARRY CHARMLEY: -- police officer 9 who doesn't have that formal training. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MR. LARRY CHARMLEY: But certainly just 12 in respect to homicides in general, it's often talked 13 about, smaller services being able to job shadow somebody 14 in a bigger service and -- and get exposed to 15 investigative steps. 16 COMMISSIONER STEPHEN GOUDGE: Thanks. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: All right. Now, if we 20 can go to page 33, you earlier were about to tell us 21 about the initial conversation that you had that you 22 initiated with Dr. Smith, and from a review of your 23 document, it would appear that that took place on October 24 the 5th of 2001; am I right? 25 MR. LARRY CHARMLEY: That's correct.

1 MR. MARK SANDLER: And could you relate 2 to the Commissioner what was said in the conversation 3 that was between you and Dr. Smith? 4 MR. LARRY CHARMLEY: Yes, I -- I wanted 5 to talk to Dr. Smith basically about the hair, but we 6 ended up getting into some other areas, as well, but I 7 had questioned Dr. Smith about his recollection of the 8 hair in Jenna's vaginal area, and Dr. Smith immediately 9 advised me that he did recall that and that he had seized 10 it. 11 He then described it to me as being a 12 fibre; that the police did not feel it was pertinent to 13 seize, so he had kept it in his files, and that he 14 believed he still had this item and he was going to have 15 to confirm this and get back to me. 16 MR. MARK SANDLER: All right. And then 17 we also see that, near the bottom of the page, there's 18 some discussion about -- about sexual abuse or child 19 abuse, and you've reflected: 20 "Dr. Smith also advised that he did 21 have a child abuse expert look at Jenna 22 and he's satisfied that there was no 23 evidence of a sexual assault. 24 Detective Constable Charmley advised 25 Dr. Smith that if he did locate the

1 fibre from Jenna's vaginal area, that 2 police would be seizing it for further 3 examination." 4 And again, does that accurately represent 5 the substance of your communication with him? 6 MR. LARRY CHARMLEY: Yes, I told him if 7 he had located it, I would want to seize it. 8 MR. MARK SANDLER: All right, now -- now 9 just stopping there for a moment. You've re -- you've 10 reflected in this notation that -- that he described it 11 or characterised it as a fibre as opposed to a hair. 12 Did he ever represent to you that -- that 13 it was a trunk hair and that that was why it had no 14 significance? 15 MR. LARRY CHARMLEY: No. 16 MR. MARK SANDLER: Ever characterise it 17 as a trunk hair? 18 MR. LARRY CHARMLEY: No. 19 MR. MARK SANDLER: All right. Did he 20 ever tell you that it was contaminated in some way and 21 that was why it had no significance? 22 MR. LARRY CHARMLEY: No. 23 MR. MARK SANDLER: Okay. Now, if you'd 24 go to -- we're going to come back to this review, so you 25 should keep your hand in it, perhaps, because we'll come

1 back to the same location, but if you'd go to tab 24 of 2 the document brief, PFP053106. 3 And I'm interested in the email that is 4 dated November the 6th of 2001 from Charles Smith to Jeff 5 Mainland. Do you see that? 6 MR. LARRY CHARMLEY: Yes, I do. 7 MR. MARK SANDLER: And it says: 8 "Jeff, yes, I have the fibre. I spoke 9 with a member of Durham Regional Police 10 several weeks ago..." 11 And just stopping there for a moment. 12 We've -- we've seen that although you're not a member of 13 the Durham Regional Police, your conversation with him 14 was on October the 5th of 2007, right? 15 MR. LARRY CHARMLEY: That's correct. 16 MR. MARK SANDLER: And then it says: 17 "We agreed that I would keep the fibre 18 until they checked on what should be 19 done with it. The officer I spoke with 20 was going to speak with his colleagues, 21 and if appropriate, speak with someone 22 from the hair [slash]/fibre section of 23 the CFS. I haven't spoken to anyone 24 since then so until I received your 25 message, I was not aware of what was

1 happening. In fact, I don't even know 2 the name of the police officer who is 3 charge of the investigation but he 4 seemed pretty clueless. He wanted 5 Bonnie Porter to get all the Crown and 6 the defence medical experts together in 7 a meeting and have them all agree on 8 the case." 9 And I'm going to come back to that in a 10 moment. 11 "In reference to the fibre, I'm not 12 sure that I will be able to do anything 13 about it this week as I'm tied up in 14 court." 15 Then he reflects: 16 "I started testifying at the 17 preliminary hearing of Kporwodu 18 yesterday. Before I even got to the 19 stand, one (1) of the defence lawyers 20 told the judge that he expected it to 21 be between one (1) and two (2) weeks. 22 The other defence lawyer is also going 23 to cross-examine me. I spent all day 24 yesterday being examined in chief; much 25 of the time was wasted on legal

1 arguments. This is absurd as David 2 Chiasson has said many times, Remember, 3 this is only a four hundred and eighty- 4 five dollar ($485) report." 5 The comment that -- that he directs, and 6 we'll assume for the purposes of our discussion that he's 7 directing to you. 8 First of all, did you have some 9 conversation with him about the possibility of the 10 experts that had been engaged in the case coming together 11 in a meeting to discuss some commonality? 12 MR. LARRY CHARMLEY: Yes, I believe I 13 did. 14 MR. MARK SANDLER: All right. And if 15 it's of some comfort, because I see the characterization 16 there that the officer seemed pretty clueless, we have 17 actually been discussing systemically here the 18 possibility that -- that Crown and defence experts should 19 come together to reach consensus on -- on what can be 20 said about the pathology in an individual case. 21 Do you see that as a -- as something 22 worthy of -- of consideration? 23 MR. LARRY CHARMLEY: Absolute -- I mean, 24 there's certainly lots of opinions out there when you get 25 discussing things but hopefully everybody is in it for

1 the right reason and you can find some common ground on 2 what everybody can agree on. 3 MR. MARK SANDLER: All right. And if we 4 can go back them to -- to your review at page 33. This 5 is again 011009 at Tab 5. 6 And after your conversation on October the 7 5th with Dr. Smith, you reflected: 8 "On October the 18th and November the 9 5th you left messages for Dr. Smith to 10 call about the fibre. 11 On November the 8th, you spoke with 12 Jeff Mainland who confirmed that Dr. 13 Smith had in fact located the fibre 14 from Jenna. He further advised that 15 they were currently considering two (2) 16 experts in the United States to review 17 the medical file." 18 And then you were able to contact Dr. 19 Smith on the 8th and arrangements were made to attend his 20 office. 21 Could you describe for the Commissioner 22 what took place on November the 15th? 23 MR. LARRY CHARMLEY: Yeah. On the 15th 24 of November, 2001, I attended the Hospital for Sick 25 Children in Toronto and I met Dr. Smith, as was pre-

1 arranged with him. And at that time, Dr. Smith turned 2 over to me a sealed white envelope and it had writing on 3 the outside of it that said "Hair from pubic area." 4 MR. MARK SANDLER: So stopping there for 5 a moment. 6 Despite the characterization of this item 7 by Dr. Smith in his discussion with you as a fibre, it 8 had been labelled as "hair from pubic area" on the 9 envelope that was turned over to you? 10 MR. LARRY CHARMLEY: That's correct. 11 MR. MARK SANDLER: All right. Go on, if 12 you would. 13 MR. LARRY CHARMLEY: There was also a 14 seal that was on the envelope and on the seal it 15 indicated that the contents had been seized from Jenna 16 XXXX on the 22nd of January, 1997 at 15:23 hours by Dr. 17 C.R. Smith. 18 So I seized the envelope and placed a 19 property tag from our service on it. 20 MR. MARK SANDLER: And just stopping 21 there for a moment. 22 MR. LARRY CHARMLEY: Yeah. 23 MR. MARK SANDLER: Did you later 24 determine how the numbering that was contained on the 25 item compared to other items that had been seized or

1 utilized during the autopsy? 2 MR. LARRY CHARMLEY: Yes. My curiosity 3 was kind of getting the better of me so I went back to 4 compare the seal number with other seals of evidence 5 seized during the autopsy and it was, in fact, a 6 sequential serial -- or seal number to other seals that 7 were used at that same autopsy. 8 MR. MARK SANDLER: All right. So I take 9 it you inferred from that that this was, indeed, an item 10 that had been seized during the autopsy itself? 11 MR. LARRY CHARMLEY: Based on that, I 12 would have given him the benefit of the doubt that it 13 was, yes. 14 MR. MARK SANDLER: Okay. And then did 15 you subsequently have occasion to view the contents of 16 the envelope? 17 MR. LARRY CHARMLEY: Yes, I did the 18 following day with the assistance of one (1) of our 19 Forensic Identification Officers, Constable Donaldson. 20 We opened the envelope together and viewed the contents. 21 And at that time, we were both satisfied that it did 22 contain a small -- what was kind of like a dark hair with 23 a little curl to it. 24 MR. MARK SANDLER: Okay. And -- and if 25 you'd go to the next page, page 34, we see that on

1 November the 19th you spoke with Scott Kirkland, who's 2 alongside you here, about his recollection of the 3 autopsy. And you've recorded, 4 "he had no recollection of Dr. Smith 5 discussing or seizing anything from the 6 vaginal area. 7 He further doubted that he would say 8 it's not important. He advised that 9 Dr. Smith controlled the autopsy and 10 told him what was important and what 11 pictures to take. He did have a vague 12 recollection of one autopsy with Dr. 13 Smith, but he did not believe it was 14 Jenna's. 15 During that autopsy, Dr. Smith 16 commented upon a fibre in the area of 17 the groin, but that it was common to 18 find this from clothing, and it was not 19 significant." 20 And -- and I'll turn to -- to Officer 21 Kirkland. Does that accurately represent what you would 22 have told Detective Constable Charmley back in November 23 of 2001? 24 MR. SCOTT KIRKLAND: Yes, sir. And -- 25 and since then, I've remembered what autopsy it was. It

1 was a -- it was drowning, and it was a -- a young boy. 2 And there was a -- a number of blue and red fibres, as I 3 recall them, in this underwear, like small knotted. 4 And we decided at that time -- and there 5 was no evidence that anything but drowning had been the 6 cause of his death. 7 MR. MARK SANDLER: Okay. 8 MR. SCOTT KIRKLAND: That they were not 9 significant. 10 MR. MARK SANDLER: And then, Detective 11 Charmley, if we look at page 34. You've set out some 12 views arising out of what you had learned up until that 13 point in time. And -- and you note: 14 "The recovery of this hair raises some 15 concerns about how such a potentially 16 crucial piece of evidence was 17 overlooked and never examined. 18 Potentially, the hair could also lend 19 credibility to the fact that Jenna 20 might have been sexually assaulted. 21 There was an obvious difference in 22 recollection to what had occurred at 23 autopsy. Dr. Smith said the police did 24 not think the hair was pertinent and 25 Constable Kirkland said he never

1 indicated this and that it was Dr. 2 Smith who was telling him what was 3 important. Why would a police officer 4 suggest that a foreign hair in the 5 vaginal area was not important 6 especially given that Jenna was being 7 care for by a fourteen (14) year old 8 male when she died. Further, why would 9 a pathologist accept such a view 10 without further discussion with the 11 officer in attendance, the primary 12 investigator, or other colleagues. 13 Other than the sealed envelope 14 containing the hair, there was no 15 documentation made about the seizure of 16 the hair. Further, the hair was not 17 photographed before removing it from 18 Jenna's body. Although, there was one 19 (1) photograph that has been mentioned, 20 again, it's obvious that this photo was 21 not intended to capture the hair. Dr. 22 Smith was also questioned at the 23 preliminary inquiry about a hair being 24 found on Jenna. He had no recollection 25 of such a hair, but did admit that such

1 a finding would raise alarm bells. 2 Detective Constable Charmley is aware 3 from attending several autopsies over 4 the years that sometimes things do 5 progress quickly; there has to be 6 communication from both sides to ensure 7 the pace is comfortable and knowledge 8 is shared. Unfortunately, only 9 Constable Kirkland was present at the 10 autopsy for the police. Is it 11 reasonable to believe that between 12 making notes and changing camera film 13 that Constable Kirkland may have missed 14 something occurring? Given Dr. Smith's 15 position, should he have pursued 16 advising others of the hair seizure? 17 Police investigators probably gave 18 little thought about the hair given 19 that there was no mention of it being 20 recovered at autopsy; there was no 21 evidence of a sexual assault; and as 22 the investigation progressed, such a 23 hair would presumably have no 24 evidentiary value to charges against 25 Brenda. The recovery of this hair

1 would not be make known to any 2 witnesses or suspects until later in 3 the review." 4 Now -- and did that represent the concerns 5 or your state of mind at that point in the review that 6 was taking place? 7 MR. LARRY CHARMLEY: Yes, it did. 8 MR. MARK SANDLER: Now, you make 9 reference to the preliminary inquiry and what Dr. Smith 10 had to say at that preliminary inquiry. 11 By this point in time, November of 2001, 12 had you reviewed that evidence? 13 MR. LARRY CHARMLEY: I -- yes, I believe 14 -- yeah, I did review the evidence but on the transcript. 15 MR. MARK SANDLER: Okay. And if you'd go 16 to Tab 1 of the documents that you have, namely, the 17 overview report. And I'm going to take you to 144684 at 18 page 31, sorry 32. 19 20 (BRIEF PAUSE) 21 22 MR. MARK SANDLER: And this is cross- 23 examination by Mr. Hauraney at the preliminary inquiry of 24 Dr. Smith, and at the risk of over-simplifying, Mr. 25 Hauraney is putting to Dr. Smith what's contained in the

1 hospital records concerning both suspicions of sexual 2 abuse, and also observations being made of -- of a hair. 3 And you'll see at the top of page 32: 4 "Q: And I take it he'd be looking at 5 some sexual interference at this child 6 as well? 7 A: Be worried about it, yeah. 8 Q: [and then he goes on to say] A 9 curly hair around the vulva area, do 10 you see that? 11 A: Yes. 12 Q: Would you expect this young girl to 13 have a curly hair on her vulva? 14 A: No, I assume that's some pick-up. 15 That's something that's landed there. 16 Q: I understand from speaking to him, 17 and it would be evidence later on, that 18 he was satisfied it was consistent with 19 a dark pubic hair? 20 A: You know something I don't know. I 21 appreciate that. But does that -- does 22 that raise the alarm bells? [Dr. Smith 23 asks] 24 Q: Yes. 25 Yes, sure.

1 Q: And I take it then, as far as you 2 know, the police didn't bring any pubic 3 hair to you for examination? 4 A: No. 5 Q: And did they advise you that there 6 may have been a pubic hair found? 7 A: I can't -- I can't remember. 8 Q: All right. 9 A: I don't know, I'm sorry." 10 Now, did that testimony raise any concerns 11 in your mind? 12 MR. LARRY CHARMLEY: Absolutely. 13 MR. MARK SANDLER: What were those 14 concerns? 15 MR. LARRY CHARMLEY: Well obviously there 16 was a hair there, and it appeared that Dr. Smith had 17 absolutely no recollection of that hair. And I don't 18 know if you want me to get into the comment that I 19 learned later -- 20 MR. MARK SANDLER: Well, I'm going to 21 just ask you about it now then. We -- we do later learn, 22 according to Dr. Cairns, that Dr. Smith represented to 23 him that he had the hair in his pocket while testifying 24 at the preliminary inquiry. 25 And -- and is that something that you

1 learned in the course of your investigation as well? 2 MR. LARRY CHARMLEY: Yes, I learned that 3 through Dr. Cairns. 4 MR. MARK SANDLER: And -- and did that 5 cause you any additional concern? 6 MR. LARRY CHARMLEY: Absolutely. I -- I 7 -- it made me question how truthful Dr. Smith was being 8 in his testimony, or whether he was being untruthful 9 about actually having that to please Dr. Cairns. 10 Because I couldn't understand with that 11 line of questioning, if he had the forethought to gather 12 that envelope before he came to give testimony, and had 13 it in his jacket pocket, why he would not pull it out of 14 his pocket when he's being cross-examined on that very 15 issue. 16 MR. MARK SANDLER: All right. Well now, 17 you've testified earlier that -- that Dr. Smith was 18 describing this in conversation with you, as -- as a 19 fibre. And then we've seen, when we look at the actual 20 exhibit, it's -- it's described as a hair from -- from 21 the pubic area. 22 But leave aside the fact that it was -- 23 that it was discussed as a fibre in his earlier 24 conversations with you. Assume that Dr. Smith might say 25 that he thought it was a trunk hair, not a pubic hair,

1 and -- and it was for that reason that he did not 2 acknowledge possession of it at the preliminary inquiry. 3 Would you have expected him to advise the 4 questioner that -- that this hair had been seized, and 5 was on his possession in response to the questions that 6 were directed at the preliminary inquiry? 7 MR. LARRY CHARMLEY: I -- I would hope 8 so. I mean, you can examine the way the questioning went 9 there, and yeah, nobody -- it wasn't put to him directly. 10 Was it -- as far as just being a hair, it was put to him 11 as far as a pubic hair, so -- I mean, it depends on how 12 far you want to get in examining that. 13 But I would assume anyone would realize 14 where that line of questioning was going and say -- and 15 pull the hair out of their pocket, if they had it, and 16 say, By the way I do have this though, if this is what 17 you're referring to. 18 MR. MARK SANDLER: Now, I've -- I've 19 raised the issue with you that we see -- we've seen later 20 reference to on an appeal that was taken from the College 21 of Physicians and Surgeons a decision by Brenda Waudby. 22 And -- and I just want to take you to Tab 23 29 of the materials for a moment just to see if we can 24 get some insight on -- on the use of the term 'trunk 25 hair'.

1 What do you understand as -- as an 2 investigating officer a 'trunk hair' is referable to? 3 MR. LARRY CHARMLEY: My understanding is 4 a trunk hair is something from the main part of the body 5 which could be chest, arm, pubic area. It's not a head 6 hair or a facial hair. 7 MR. MARK SANDLER: All right. So that 8 even if it's characterized as a trunk hair, a trunk hair, 9 as you understand it, would also include a pubic hair? 10 MR. LARRY CHARMLEY: That's correct. 11 MR. MARK SANDLER: And we see at Tab 29, 12 which is PFP074 -- excuse me for a moment -- 279. And 13 this is the -- for you this would be the second -- second 14 page within Tab 29. 15 MR. LARRY CHARMLEY: Yes. 16 MR. MARK SANDLER: We see that this is 17 one (1) of a series of reports that were received from 18 the Centre of Forensic Sciences, as I understand it, 19 concerning this item, am I right? 20 MR. LARRY CHARMLEY: That's correct. 21 MR. MARK SANDLER: And the bottom line to 22 all of this, at the risk of oversimplifying, was that 23 this item was -- this hair was submitted for examination 24 by the Centre of Forensic Sciences. It was not suitable 25 for nuclear DNA analysis because it was without root, and

1 ultimately it was submitted for testing in -- in the 2 United States together with samples of -- of individuals 3 who could be suspected in this case and, ultimately, it 4 was shown that it did not correlate to any of those 5 individuals, am I right? 6 MR. LARRY CHARMLEY: That's correct. 7 MR. MARK SANDLER: So the bottom line, 8 just in fairness, is that this hair, as it ultimately 9 played out, did not play a role in the ultimate 10 determination or resolution to the case, is that fair? 11 MR. LARRY CHARMLEY: That's correct, it 12 did not. 13 MR. MARK SANDLER: Okay. But what we see 14 here from 074279 is that: 15 "The purpose of the examination is to 16 examine and identify the submitted 17 trace material. The item is hair/fibre 18 from vaginal area of Jenna. And the 19 results show this item consisted of a 20 fragment of a human trunk hair, i.e., 21 chest or pubic, likely of Caucasian 22 origin. It was without root, and is, 23 therefore, not suitable for a nuclear 24 DNA analysis." 25 So just stopping there for -- for a

1 moment. It would appear that the use of the term "trunk 2 hair" by the Centre of Forensic Science is -- accords 3 with your understanding, am I right? 4 MR. LARRY CHARMLEY: That's correct. And 5 that's where I got my understanding from. 6 MR. MARK SANDLER: Okay. Now, if we can 7 go back to Tab 5 and continue on with the -- with the 8 chronology of your investigative work. And we had left 9 off November of 2001. And if I can bring you forward to 10 page 37 of your review document. 11 And that is the entry at the bottom of the 12 page for January the 14th of 2002. Could you describe 13 the conversation that you had with Brenda Waudby and Dr. 14 Smith that took place on that date? 15 MR. LARRY CHARMLEY: Yes. Brenda called 16 me quite a few times during this investigation, and this 17 was one (1) of the occasions that I spoke to her on the 18 phone on the 14th of January, 2002. And she had received 19 the response from Dr. Smith that he provided the College 20 of Physicians and Surgeons with regards to her complaint 21 to the College. 22 I did not have access to that report at 23 the time, so she was telling me about some of the 24 contents in that report. And she indicated that the 25 report from Dr. Smith indicated that he had turned over

1 two (2) samples to the police in relation to the aspect 2 of a sexual assault. 3 And I proceeded to -- based on that 4 information -- 'cause I was totally unaware of that, I 5 proceeded to call Dr. Smith and ask him what he was 6 referring to with regards to those two (2) samples. He 7 advised that the letter that he sent indicates that one 8 (1) sample was taken. 9 And I had questioned him if that was the 10 hair that I -- I believed what he was referring to when 11 he confirmed that it -- it was the hair from the vaginal 12 area. 13 MR. MARK SANDLER: So just stopping there 14 to avoid some confusion here. It -- it -- what it sounds 15 like -- you correct me if I'm wrong -- is that Ms. Waudby 16 assumed that the language and appropriate sampling was 17 taken during the autopsy must have been referring to 18 something other than the hair and tense -- and hence 19 there were two (2) items, and he clarified that the 20 appropriate sampling that was taken was referable to the 21 hair. 22 Do I have that right? 23 MR. LARRY CHARMLEY: That's correct. And 24 when she said that to me, I -- I assumed maybe there was 25 some other swabs or something taken as well that I was

1 unaware of. 2 MR. MARK SANDLER: All right. And then - 3 - and then you also had conversation with him about the 4 expert who -- who he had indicated had viewed Jenna in 5 relation to any sexual abuse. 6 So tell us what was said in that regard? 7 MR. LARRY CHARMLEY: And I don't recall 8 if Brenda mentioned to me about the expert or where that 9 came from, but I did ask Dr. Smith during that 10 conversation if he could provide the name of the sexual 11 abuse expert that viewed Jenna, and he refused to provide 12 me with that name. He indicated that it would be in the 13 report, and I could get it from the report. 14 MR. MARK SANDLER: Did he provide you any 15 explanation for why he wouldn't provide you, as the 16 investigating officer, the name of the individual who had 17 viewed Jenna in respect to any sexual abuse? 18 MR. LARRY CHARMLEY: No, not that I can 19 recall. I was kind of confused as to why he would not 20 want to give it to me. 21 MR. MARK SANDLER: Okay. And go on, I 22 interrupted you, you were -- you were describing the 23 conversation as it took place. 24 MR. LARRY CHARMLEY: And he further 25 suggested that this doctor wouldn't have a report on the

1 viewing that he had done of Jenna at the time of the 2 autopsy. 3 So I proceeded to call back Brenda, 4 knowing that Dr. Smith had indicated that the name was in 5 the report, and Brenda advised me that the doctor's name 6 in the report was Dr. Dirk Huyer. And eventually on -- I 7 would receive a copy of that report, at a later date, 8 that confirmed that information. 9 MR. MARK SANDLER: All right. And then 10 in the next paragraph at page 38, you've -- you've 11 summarized what it was that Dr. Smith had to say in his 12 reply to the College of Physicians and Surgeons. And 13 we've addressed this paragraph right at the outset of the 14 questions that I asked you earlier in the morning. This 15 is the portion where you've reflected that the reply 16 notes: 17 "That a sexual abuse examination was 18 performed by me. There was no evidence 19 of abuse, nevertheless appropriate 20 sampling was undertaken. The police 21 who are responsible for the submission 22 of evidence in a homicide investigation 23 chose not to submit this material for 24 analysis. Following Ms. Waudby's 25 complaint to the College, I have asked

1 the police to reconsider their decision 2 and they agreed to do so." 3 And I take it -- and we've already heard 4 from Dr. Huyer, so I don't intend to go through -- 5 through that aspect in great detail, but did you engage 6 in further inquiries of Dr. Huyer and others to try to 7 determine whether or to what extent Dr. Huyer was 8 involved in ascertaining whether Jenna had been sexually 9 abused? 10 MR. LARRY CHARMLEY: Yes, I did. I 11 phoned Dr. Huyer and had a conversation with him on the 12 phone about his recollection. 13 He did not have a recollection 14 specifically of attending Jenna's autopsy, but he did 15 confirm that he would attend autopsies on a regular basis 16 performed by Dr. Smith, and he would provide his opinion 17 regarding sexual abuse, and they would discuss the cases 18 together. 19 And I requested that he provide something, 20 to that effect, in writing to me which he did prepare a 21 letter and provide to me outlining that. 22 MR. MARK SANDLER: Okay. Now did you 23 also make inquiries as to whether Dr. Smith had any notes 24 -- rough notes -- that supported the account that he had 25 given?

1 MR. LARRY CHARMLEY: Yes. I had asked 2 Dr. Smith at one (1) point whether he had any rough notes 3 relating to his autopsy. 4 MR. MARK SANDLER: Now, just -- let me 5 just stop you there -- 6 MR. LARRY CHARMLEY: Yeah. 7 MR. MARK SANDLER: -- because that's not 8 reflected in -- in the document we're looking at right 9 now. So if I can take you to Tab 3, which is PFP072772, 10 and these are your -- these are the entries in your -- in 11 your actual homicide review notebook, I take it? 12 MR. LARRY CHARMLEY: Yes, they are. 13 MR. MARK SANDLER: And these would be 14 more detailed than your review summary that we've been 15 going through, if that's at all possible. 16 MR. LARRY CHARMLEY: Yes, they are. 17 MR. MARK SANDLER: Okay. And -- and then 18 if -- if we look at the entry for January the 22nd of 19 2002, which is about a week after that conversation that 20 you've described with Dr. Smith, what does this tell us? 21 MR. LARRY CHARMLEY: This is not 22 specifically in -- Dr. Smith is previous in my notes. 23 MR. MARK SANDLER: Right. 24 MR. LARRY CHARMLEY: This particular 25 entry, I also wanted to go to the extent of determining

1 whether his pathology assistants had taken any notes 2 during the autopsy of Jenna. So I had actually left a 3 message for Don Perrin to call me, who was a pathology 4 assistant with Dr. Smith at Jenna's autopsy, to see if he 5 had any notes. 6 I didn't receive a call back from Mr. 7 Perrin. I received a call back from Dr. Smith, and Dr. 8 Smith advised that Mr. Perrin was sick and I told him 9 that I was trying to confirm if Dr. Perrin or -- I'm not 10 sure if he's a doctor -- Mr. Choi, would have had any 11 notes at the autopsy. And Dr. Smith advised me that both 12 Mr. Perrin and Choi are just pathology assistants and 13 neither of them would have notes, and they would jo -- 14 just both assist Dr. Smith at his direction. 15 He further indicated to me that he had 16 spoken to both of them before about Jenna's case, and 17 they did not have much recollection about the autopsy due 18 to the large number that they assist in. 19 MR. MARK SANDLER: Okay. And then if 20 you'd go back to the -- your review report, which is at 21 Tab 5, and I'm looking at page 39, we see at the bottom 22 of the page an entry for April the 11th of 2002 -- 23 MR. LARRY CHARMLEY: Yes. 24 MR. MARK SANDLER: -- which addresses a 25 meeting that took place with your Chief and Deputy Chief,

1 a Staff Sergeant, yourself, the Crown Attorney, the 2 Deputy Chief Coroner, his assistant, Jeff Mainland, a 3 Centre of Forensic Sciences biologist, and the Director 4 of the Centre of Forensic Science. 5 And you've reflected issues surrounding 6 the hair were discussed: 7 "Dr. Cairns advised that there was some 8 concerns about Dr. Smith's performance, 9 but nothing that they could find to 10 suggest that he had been malicious. He 11 agreed that Dr. Smith's wording in his 12 response to the CPSO that appropriate 13 sampling had been done in relation to 14 the sexual assault exam was somewhat 15 misleading. This wording did, in fact, 16 refer to the hair, and regardless of 17 what police might have told him, the 18 hair should have been turned over to 19 the police. Dr. Cairns had spoken to 20 Dr. Smith and Dr. Smith advised that he 21 did not have any rough notes from 22 Jenna's autopsy. Dr. Smith had further 23 indicated to him that he had the hair 24 in the envelope with him at the 25 preliminary inquiry."

1 Now just stopping there for a moment. 2 We've already spoken about Dr. Smith's account to Dr. 3 Cairns about the hair in the envelope at the preliminary 4 inquiry. Dr. Cairns has also related, according to your 5 note, that Dr. Smith has said he didn't have any rough 6 notes from Jenna's autopsy, and did that accord with your 7 understanding? 8 MR. LARRY CHARMLEY: Yes. 9 10 (BRIEF PAUSE: 11 12 MR. MARK SANDLER: And you'll see at page 13 44 -- sorry, at Tab 44 of the materials, PFP011081, that 14 counsel for Dr. Smith, in October of 2004, provided the 15 Office of the Chief Coroner handwritten notes that had 16 been made by Dr. Smith during the post-mortem examination 17 of Jenna, and were these provided to you or were these 18 provided to the Chief Coroner's Office? 19 MR. LARRY CHARMLEY: Well, they weren't 20 provided to me, and to my knowledge, not to the Chief 21 Coroner's Office, either. 22 MR. MARK SANDLER: So you don't -- you 23 don't know. 24 MR. LARRY CHARMLEY: The first I knew of 25 these notes was last week.

1 MR. MARK SANDLER: Okay. So -- so just 2 to be clear, I mean we have heard some evidence that 3 these were indeed provided to the Chief Coroner's Office 4 in October 2004. You weren't privy to any of that? 5 MR. LARRY CHARMLEY: No, I wasn't. 6 MR. MARK SANDLER: And they do reflect, 7 in -- in fairness, and we've heard this, but at page 2 of 8 -- of this document, there is a reflection two-thirds 9 (2/3) of the way down the page, "Hymen examined with Dr. 10 D. Huyer", do you see that entry? 11 MR. LARRY CHARMLEY: Yes, I do. 12 MR. MARK SANDLER: Okay. 13 14 (BRIEF PAUSE) 15 16 MR. MARK SANDLER: Now, if I can take you 17 briefly to Tab 7, and Tab 7 of the documentation is 18 PFP072608. And as I understand it, this is a 19 supplementary homicide review report that you prepared? 20 MR. LARRY CHARMLEY: Yes, it is. 21 MR. MARK SANDLER: And if you'd go to 22 page 2 of this report, it reflects that: 23 "On August the 10th of 2004, you 24 received thirty-five (35) photos and a 25 CD copy of pictures taken for Dr. Smith

1 during Jenna's autopsy. These were 2 photos located by Dr. Pollanen at the 3 Hospital for Sick Children. One (1) of 4 these photos clearly shows the foreign 5 hair in Jenna's vaginal area. Photos 6 and CD's were placed into evidence with 7 a property tag number." 8 And -- and was that the first that you had 9 obtained the photographs that were taken during the 10 autopsy by a person other than Constable Kirkland? 11 MR. LARRY CHARMLEY: Yes, it was. 12 MR. MARK SANDLER: All right. And -- and 13 as I gather from your material, they had been discovered 14 either by or through Dr. Pollanen at the Hospital for 15 Sick Children? 16 MR. LARRY CHARMLEY: That's my 17 understanding. 18 MR. MARK SANDLER: Okay. Now one (1) of 19 the issues that has been thrown up by all of the events 20 that we've been desc -- that we've described is that 21 apart from what the accurate facts are concerning the 22 nature of -- or extent of the sexual assault examination 23 that took place at the autopsy, there's great merit that 24 any such examination be fully documented. 25 And I take it you'd agree with that?

1 MR. LARRY CHARMLEY: I would. 2 MR. MARK SANDLER: And similarly, 3 regardless of -- of a perspective as to whether or not a 4 hair should or shouldn't be seized, and I know what your 5 position is as to whether it should be seized, the 6 conduct in that regard should be fully documented? Am I 7 right? 8 MR. LARRY CHARMLEY: It should be, yes. 9 MR. MARK SANDLER: Okay. Now, one (1) of 10 the issues that is raised by that as well, is whether or 11 not there -- there was evidence of a sexual assault, or 12 sexual abuse directed towards Jenna. 13 And in the course of your investigation, 14 did you ever form an opinion as to whether Jenna had been 15 sexually abused? 16 MR. LARRY CHARMLEY: Yes, I did. 17 MR. MARK SANDLER: And what was your 18 opinion? 19 MR. LARRY CHARMLEY: My opinion was she 20 had been sexually abused. 21 MR. MARK SANDLER: And without getting 22 into the details, what was the basis for that 23 determination on your part? 24 MR. LARRY CHARMLEY: During my 25 investigation, the babysitter, who was eventually charged

1 and convicted, he had provided statements to an 2 undercover officer admitting that he had committed a 3 sexual assault on Jenna. 4 MR. MARK SANDLER: All right. And -- and 5 I take it, ultimately, that didn't form part of the 6 agreed statement of facts that were presented as part of 7 the plea? That was simply an admission that was made -- 8 admission or admissions that were made in the course of 9 the investigation? 10 MR. LARRY CHARMLEY: That's correct. 11 MR. MARK SANDLER: And -- and for those 12 who are not familiar with it, what -- what did transpire 13 here is that your role as reviewer of the investigation 14 kind of morphed into the role as the Lead Investigator; 15 am I right as to that? 16 MR. LARRY CHARMLEY: Yes, it did. 17 MR. MARK SANDLER: And -- and ultimately 18 through investigative techniques, including the use of an 19 undercover officer, the -- the babysitter who was 20 involved was implicated and ultimately, pleaded guilty in 21 this matter; am I right? 22 MR. LARRY CHARMLEY: That's correct. 23 MR. MARK SANDLER: Now one (1) of the 24 other issues that came up in this case was steps that 25 were -- were not taken to address a -- a potential bite

1 mark that was found on -- on Jenna's body. 2 Can you tell us what, if anything, you 3 learned about that particular issue? 4 MR. LARRY CHARMLEY: The first I -- I 5 read about it in Dr. Smith's autopsy report where it 6 refers to as a 'bite like' mark, and again, not knowing a 7 lot about medicine, I -- and it's part of the report, I 8 didn't presume that anything further could be done with 9 it, or it would have been done. 10 But when I -- I went to one (1) of the 11 final reviews after I'd done my first review report under 12 Tab 5 there, for the purpose of everyone reviewing before 13 we case-conferenced, it was during that subsequent case 14 conference that I learned, through Dr. Pollanen, that in 15 fact there -- there was what appeared to be a bite mark 16 on Jenna's right knee. 17 And that it had not been photographed 18 properly -- or sorry, maybe I didn't learn that at that 19 time, it wasn't photographed prop -- but it -- what was 20 indicated to me at that briefing at the Coroner's Office 21 was that whenever a bite mark is located, that the 22 autopsy should be stopped at that point, and a forensic 23 odontologist should be taking a look at the body. 24 And it's them that would look after the 25 photographs and measurements of that particular area so

1 they could use it for -- for reference to any other 2 materials that the police might seize as far as dental 3 records and that. And I later learned Dr. Wood was 4 present, who was a forensic odontologist. 5 He was provided all the materials and, 6 unfortunately, it was not photographed to the extent that 7 it should have been. And we were not able to do anything 8 further other than to expand his opinion that it was a 9 probable human bit mark, but -- 10 MR. MARK SANDLER: That -- I'm sorry. 11 You go ahead. 12 MR. LARRY CHARMLEY: -- but it wasn't 13 suitable to be compared to anything, if I was to obtain 14 dental records or dental impressions. 15 MR. MARK SANDLER: So to be clear, when 16 you make reference to Dr. Wood being present, you're 17 talking about subsequently as a result of -- of Dr. 18 Pollanen and others' input as to what should be done as 19 further investigative steps on the file? 20 MR. LARRY CHARMLEY: That's correct, 21 yeah. Not initially, during the initial autopsy, this is 22 several years later. 23 MR. MARK SANDLER: And was there also 24 discussion as to whether had the proper process been 25 followed a swab should have been taken of the -- of the

1 site? 2 MR. LARRY CHARMLEY: Yes. 3 MR. MARK SANDLER: And what were you told 4 about that? 5 MR. LARRY CHARMLEY: Swab should have 6 been taken because if -- certainly if it was a recent 7 bite mark there might be saliva there where you could 8 obtain DNA or if -- if it was through clothing, you might 9 get some DNA off of the clothing in that particular area. 10 MR. MARK SANDLER: Okay. Now, I know, 11 Detective Constable -- Detective Sergeant Charmley, that 12 -- that you've considered what, if any, recommendations 13 that you'd like to make to the Commissioner arising out 14 of your involvement in this particular case and your 15 experience as a police officer. 16 And now is an opportune time. Could -- 17 could you advise the Commissioner what recommendations 18 you -- you'd like him to consider? 19 MR. LARRY CHARMLEY: Yes. 20 MR. MARK SANDLER: And I know you've 21 actually reduced them to writing, so I'll have our 22 Registrar put them on the screen. 23 MR. LARRY CHARMLEY: There's seven (7) 24 recommendations, and I can expand on them, if need be. 25 My first recommendation is that it should be mandatory

1 for the investigating officer or a designate of a 2 suspicious death investigation, along with a Police 3 Forensic Identification Officer to be present at the 4 autopsy. 5 And I know that might be common place for 6 a lot of bigger services, certainly as Constable Kirkland 7 has -- has indicated, when he attended Jenna's autopsy 8 that was not the case. I know our service now adopts 9 that procedure that we always send the investigating 10 officer, along with the Forensic Identification Officer. 11 And again, there's a lot that happens in 12 that one and a half (1-1/2) to three (3) hour time 13 period. And certainly the more people that are there to 14 record it correctly the better -- and the better 15 information you get and the more you can rely on that 16 information as being correct and not misinterpreted. 17 My second recommendation would be that a 18 written summary of the police investigation should be 19 provided to the forensic pathologist prior to the 20 autopsy. And similarly, a document provided to the 21 police following the autopsy that summarizes the initial 22 findings and cause of death, where possible. 23 COMMISSIONER STEPHEN GOUDGE: That would 24 be prepared by the pathologist? 25 MR. LARRY CHARMLEY: That's correct. And

1 again, for the benefit of the pathologist -- and it 2 doesn't -- doesn't to be an extensive report, but 3 certainly something in writing, two (2) or three (3) 4 paragraphs that outlines the police investigation, so 5 it's very clear on paper what he's dealing with. 6 And likewise, police -- in most of the 7 autopsies I've been to, you're told at the very end, are 8 you ready, write this down, and you write specifically 9 down what's said or the forensic pathologist will write 10 something on a chalkboard or something for you and you 11 write specifically down what the cause of death is, if it 12 can be determined at that time. 13 But it would also help to just have a 14 paragraph or two (2) summary, for instance in Jenna's 15 case, saying possible burn mark on the forehead, multiple 16 bruising on the body. Just something very generalized 17 that may have a disclaimer on it but, again, something in 18 writing so there's no confusion later as to exactly what 19 was communicated. 20 COMMISSIONER STEPHEN GOUDGE: But in 21 writing done by the pathologist? 22 MR. LARRY CHARMLEY: That's correct. I'm 23 not sure what they'd think of that, but certainly from 24 our benefit that takes away any confusion -- 25 COMMISSIONER STEPHEN GOUDGE: Right.

1 MR. LARRY CHARMLEY: -- as to what 2 actually happened there. 3 COMMISSIONER STEPHEN GOUDGE: Right. And 4 what the preliminary findings were? 5 MR. LARRY CHARMLEY: That's correct. My 6 third recommendation is where a deceased person has 7 received pre or post mortem care by a healthcare 8 professional, any records or notes related to that should 9 be provided to the forensic pathologist prior to the 10 autopsy. 11 Now, in this case, Constable Kirkland was 12 given some x-rays and an ultrasound to provide to Dr. 13 Smith, but I don't believe Dr. Smith had access to the 14 emergency physician's report or any of the nurses at that 15 time that made comments about possible rectal stretching, 16 abrasions to the vaginal area or where it's even 17 mentioned about the hair in the emergency physician 18 report. 19 And I think it's only fair that the 20 forensic pathologist have access to that information 21 prior to starting the autopsy or -- to get it after is 22 fine too, and I'm sure -- sure they do, but certainly the 23 more information you have up front the better. 24 So -- and some of that information -- 25 COMMISSIONER STEPHEN GOUDGE: Would that

1 have been possible here, Detective Sergeant; that is, the 2 body gets taken from Peterborough to Toronto quickly, 3 what would you do; run a copy of the ER notes or 4 something? 5 MR. LARRY CHARMLEY: And typically, we 6 wouldn't have access to that, it would be -- it would 7 still be a coroner's investigation and they would have to 8 provide that material to us or potentially fax it to the 9 Coroner's Office or the Hospital for Sick Children for -- 10 COMMISSIONER STEPHEN GOUDGE: So the 11 local coroner would have to be the one to obtain those 12 records and then they would go as the x-rays did, with 13 the body to Toronto? 14 MR. LARRY CHARMLEY: That would be my 15 understanding of the correct way because we, the police, 16 would not be able to obtain those. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 You're still at the stage of the coroner having control 19 over it? 20 MR. LARRY CHARMLEY: That's correct. 21 COMMISSIONER STEPHEN GOUDGE: Okay. But 22 I assume that is how you got the x-rays, Constable 23 Kirkland; that is, the coroner would have obtained them 24 for you in Peterborough, you would have taken them to 25 Toronto?

1 MR. SCOTT KIRKLAND: Actually, I don't 2 know how that happened, Commissioner. They were handed 3 to me I think by Mark Balentine. He had them. So where 4 he got them I couldn't say. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 MR. LARRY CHARMLEY: Now my fourth 7 recommendation would be that there should be a peer 8 review process for forensic pathologists, especially when 9 there's a criminal investigation. 10 I don't know how many forensic 11 pathologists there are in Ontario but certainly I know at 12 the time of this case Dr. Charles Smith was very highly 13 regarded. And I don't even know if there was anyone 14 capable of reviewing his work appropriately at that time. 15 But much like we have in the police 16 service, we have sergeants and staff sergeants and 17 quality control. Especially during these type of really 18 serious investigations that potentially could go to court 19 and are dealing with people going to jail and that, there 20 should definitely be a peer review process. 21 COMMISSIONER STEPHEN GOUDGE: How would 22 you -- would you envisage that as being, in effect, 23 another pathologist looking at the primary data and 24 forming an opinion or would it simply be a review of the 25 original post-mortem report?

1 MR. LARRY CHARMLEY: I don't know that I 2 can really speak to that. 3 COMMISSIONER STEPHEN GOUDGE: Yes -- 4 MR. LARRY CHARMLEY: But -- 5 COMMISSIONER STEPHEN GOUDGE: -- and if 6 you do not feel comfortable, by all means... 7 MR. LARRY CHARMLEY: I would -- I mean, 8 the best case scenario would be to have two (2) people 9 doing the autopsy, but that's just not feasible. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MR. LARRY CHARMLEY: But certainly I 12 would think in the peer review, as in this case, 13 microscopic slides had to be looked at. So I think it 14 would have to go beyond just looking at the report 15 itself, I think you'd have to actually examine some of 16 the tissues and that that are in question. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. LARRY CHARMLEY: Number 5 would be 19 that police services should be provided reports of the 20 post-mortem examination in a more timely fashion. 21 Once again, we're typically looking for 22 something in writing. Certainly the Crown attorneys are 23 -- are wanting something in writing from the forensic 24 pathologist for when things go to court. 25 And in this particular case, the post-

1 mortem examination report wasn't received for almost 2 eight (8) months. And that's been my experience for -- 3 for other autopsies as well, that it's -- it's several, 4 several months, it's not a case of three (3) or four (4) 5 months. 6 And again, I'm not sure how difficult they 7 are to prepare and what goes into them and the time lines 8 that is required but certainly the police would 9 appreciate them much quicker. 10 Number 6 is that any reports provided to 11 police for medical professionals should include an 12 explanation of the contents in lay terms. 13 And that again refers back to me having to 14 pull out a medical dictionary to try and understand Dr. 15 Smith's report and still not having a real understanding 16 of it after trying to do that on my own. 17 However, I have had since -- some of the 18 other expert doctors have provided, as is in this brief, 19 some opinions and they explain it in more lay terms as to 20 how injuries may have occurred. 21 I'm just wondering if doctors can somehow 22 -- and I know it's more work for them. I think 23 everything that is going to come out of this is going to 24 cause more work for everybody but certainly it would make 25 it easier for the police to have this in lay terms.

1 COMMISSIONER STEPHEN GOUDGE: In your 2 police training, Detective Sergeant, did you ever have 3 any training that had a medical dimension to it? 4 MR. LARRY CHARMLEY: There is minimal at 5 Police College that you get. The -- the Coroner's Office 6 usually does have a period of maybe two (2) to three (3) 7 hours, or maybe a half a day, that they'll discuss things 8 with you. There may be a forensic pathologist present. 9 COMMISSIONER STEPHEN GOUDGE: Would it be 10 helpful if there was specialized training for those who 11 were in criminal investigation of major cases to have 12 some ability to access specialized medically oriented 13 training? 14 MR. LARRY CHARMLEY: Well, I think it's 15 definitely a benefit; the question would be, just how 16 much you really need to be qualified -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MR. LARRY CHARMLEY: -- to -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MR. LARRY CHARMLEY: -- really look too 21 deep into it. Knowing how much education doctors 22 receive, I don't know that we could ever receive enough 23 to -- to really have a benefit for us. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MR. LARRY CHARMLEY: And sometimes a

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1 little bit of knowledge -- 2 COMMISSIONER STEPHEN GOUDGE: Dangerous-- 3 MR. LARRY CHARMLEY: -- can be more 4 hurtful and -- yeah. And my final recommendation would 5 be that police services should have access to an expert 6 panel of medical professionals to provide opinions on 7 additional injuries that may not have been the cause of 8 death or related to the cause of death. 9 And what I'm getting at there is, in 10 Jenna's case, and I'm sure several other cases, there was 11 more happening to Jenna than just the injury that caused 12 her death. There was burn marks. There was several 13 bruises. There was indication that she was alive for a 14 period of time suffering a lot of these injuries. And my 15 understanding is the Coroner's Office is not really to 16 speak on a lot of those issues. They're to determine the 17 cause of death. 18 And I think the Coroner's Office is 19 sometimes asked, and I know I've asked them a lot, to 20 give opinions on other things or direct me to other 21 professionals that can provide those opinions, and -- and 22 they're very good at doing that; however, again, there -- 23 there's the time thing where a lot of that takes a lot of 24 time to do. 25 COMMISSIONER STEPHEN GOUDGE: Right.

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1 MR. LARRY CHARMLEY: And then there's the 2 question of who pays for that, and I think there should 3 be something in place. I don't know if it would be 4 another -- whether the Coroner's Office would just fall 5 under another governing body, but there should be -- 6 other than just the Coroner's Office, there should be 7 another body of medical professionals that can speak to 8 things like cardiologist type things, and burn marks, and 9 the -- like the forensic odontologist. 10 COMMISSIONER STEPHEN GOUDGE: Old 11 bruising, old fractures, that kind of thing? 12 MR. LARRY CHARMLEY: Things -- yeah, 13 other things or clinical opinions and stuff like that, 14 whereas right now, my understanding, certainly from our 15 police service perspective, it's kind of -- we get the re 16 -- recommendations from the Coroner's Office, and they 17 direct us where to go. 18 Sometimes they will actually get the 19 opinion for you, but I don't know that that's really in 20 their mandate to do that, and probably causes a lot of 21 burden for them, and it makes it difficult for the police 22 to know who do you really go to get the opinion, that 23 when it comes down to going to Court, that person can 24 actually be the relied upon expert in Court -- 25 COMMISSIONER STEPHEN GOUDGE: Right.

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1 MR. LARRY CHARMLEY: -- or whether you're 2 going to have another three (3) of four (4) different 3 opinions come up. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. LARRY CHARMLEY: And those are my 6 recommendations, Commissioner. 7 MR. MARK SANDLER: All right. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, 9 Detective Sergeant, that's very helpful. 10 MR. MARK SANDLER: Commissioner, I'm 11 going to literally be about three (3) more minutes. I 12 wonder if I should just complete the examination-in- 13 chief, if I may. 14 COMMISSIONER STEPHEN GOUDGE: Yes, why 15 don't you do that, Mr. Sandler, and then we'll take our 16 break. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: All right. Officer, I 20 was going to ask you about one (1) other area, and -- and 21 that takes you to Tab 57 of the document brief, and this 22 is PFP147347 -- 23 MR. LARRY CHARMLEY: Yes. 24 MR. MARK SANDLER: -- at page 1. And 25 this appears to be a memorandum from the College of

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1 Physicians and Surgeons that address some interaction 2 between the Police Service and the College over access to 3 information on their part. 4 So one (1) of the issue that appears to 5 have been engaged when one (1) reviews all the 6 documentation in this case is -- is the extent to which 7 the College can access information that relates to an 8 ongoing criminal investigation. 9 And -- and was that issue discussed within 10 the Police Service when the College made its request for 11 information from you? 12 MR. LARRY CHARMLEY: Yes, it was. 13 MR. MARK SANDLER: And -- and how did you 14 resolve that difficult issue? 15 MR. LARRY CHARMLEY: Well, I didn't make 16 the decision by myself. I -- I contacted the Coroner's 17 Office and got an opinion from our Regional Coroner, Dr. 18 Clark, and I also contacted the Crown Attorney's Office 19 and spoke to Crown Attorney, Brian Gilkinson, to get an 20 opinion; this was earlier in the investigation. 21 MR. MARK SANDLER: Right. 22 MR. LARRY CHARMLEY: And earlier in the 23 investigation, when I was reviewing it, we had decided 24 that we were not going to turn any in -- information over 25 at that time because we thought it could jeopardize our

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1 investigation. 2 Essentially, Brenda was -- was still a 3 suspect at that time, and we were concerned as to how 4 much information she might get access to by us providing 5 it to the College. 6 However, as the investigation went on, and 7 we learned about comments -- finding the hair, or the 8 comments about the hair being in Dr. Smith's pocket at 9 the Preliminary Inquiry, and as things kept progressing 10 that way, we -- we reconsidered our position. 11 And we decided that we should assist the 12 College and provide some of the documentation that we 13 felt wouldn't jeopardize the investigation, and we did 14 forward materials to them. 15 MR. MARK SANDLER: All right. And -- and 16 we see that taking place at Tab 34 of the document brief, 17 which is -- which we see as a follow up to the memo that 18 I just read to you, 147346 -- where the investigator at 19 the College of Physicians and Surgeons is writing to you 20 requesting certain information. 21 And on the following page, 147341, you are 22 providing certain information to -- to the College, in 23 accordance with what you've just described, am I right? 24 MR. LARRY CHARMLEY: That's correct. 25 MR. MARK SANDLER: Okay. Constable

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1 Kirkland, I know that you are a little bit reticent about 2 making recommendations given the fact that you've now 3 been retired for some period of time, and aren't current 4 with what is happening in -- in the police force. 5 Did you want to add anything to -- to what 6 has been said by Detective Sergeant Charmley? 7 MR. SCOTT KIRKLAND: The only thing that 8 I -- I might like to see would -- would be specific 9 training IDENT officers for autopsies. And -- and I 10 think Larry's point is well taken, that a little bit of 11 knowledge can be dangerous -- actually Commissioner said 12 that, and I agree with that. 13 So I -- I would like to -- more in the 14 idea of -- of a protocol set up so that we -- we react in 15 certain ways to certain situations rather than -- than 16 try to -- to learn too much about anatomy. 17 It would be above our pay rate anyway, I 18 think so. 19 MR. MARK SANDLER: So -- so you'd like to 20 -- you'd like to see some training, if it isn't already 21 taking place, for forensic identification officers to 22 assist in -- in what the respective roles should be 23 within the autopsy as it's being performed? That's what 24 I hear you saying? 25 MR. SCOTT KIRKLAND: Yes. That's -- yes,

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1 sir. 2 MR. MARK SANDLER: Thank you very much. 3 That completes my questioning, Commissioner. If we could 4 take the morning break at this point? 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 Thanks. We'll be back then at a quarter to 12:00. 7 8 --- Upon recessing at 11:26 a.m. 9 --- Upon resuming at 11:50 a.m. 10 11 THE REGISTRAR: All rise. Please be 12 seated. 13 COMMISSIONER STEPHEN GOUDGE: Okay. Ms. 14 Langford, I think you are first on my list. 15 16 CROSS-EXAMINATION BY MS. JANE LANGFORD: 17 MS. JANE LANGFORD: Thank you. Good 18 morning, Mr. Commissioner. Good morning, gentlemen. 19 MR. LARRY CHARMLEY: Good morning. 20 MS. JANE LANGFORD: My name is Jane 21 Langford, and I am one (1) of the lawyers for Dr. Smith, 22 and I want to thank you for being here today. 23 Sergeant Charmley, I'm going to start with 24 you if I may. In your very thorough and insightful 25 review of the homicide investigation into Jenna's death,

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1 you reached a number of conclusions about the conduct of 2 the investigation. 3 Is that correct? 4 MR. LARRY CHARMLEY: Yes. 5 MS. JANE LANGFORD: And one (1) of the 6 conclusions that you reached was that the police were, 7 and I'm quoting you here, 8 "open-minded about who could be a 9 suspect in Jenna's death"? 10 MR. LARRY CHARMLEY: You referring to 11 both? The entire investigation? 12 MS. JANE LANGFORD: I am -- 13 MR. LARRY CHARMLEY: Yeah. 14 MS. JANE LANGFORD: -- although I think 15 in your -- in the context of your statement it was, when 16 you first reviewed this case, you were looking back to 17 the initial investigation not your own investigation. 18 MR. LARRY CHARMLEY: Yeah. Based on the 19 number of investigative steps they took with both 20 suspected potential parties, I felt that they did keep an 21 open mind and they did pursue as much as they could. And 22 eventually the evidence started mounting more and more 23 towards one (1) than the other. 24 MS. JANE LANGFORD: Fair enough. And I 25 want to actually look, for a moment, at some of the

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1 investigative steps that the police took in respect of 2 the babysitter. 3 MR. LARRY CHARMLEY: Okay. 4 MS. JANE LANGFORD: He was, of course, 5 one (1) of the initial suspects that the police 6 considered in this case? 7 MR. LARRY CHARMLEY: Yes, he was. 8 MS. JANE LANGFORD: And your report notes 9 that Constables Harnden (Phonetic) and Donaldson attended 10 the playground very early in the investigation. 11 And that's the playground that the 12 babysitter took Jenna on the night of her death? 13 MR. LARRY CHARMLEY: That's correct. 14 MS. JANE LANGFORD: And your report notes 15 that the police obtained a warrant to inspect the 16 babysitter's home and did, in fact, go and obtain 17 evidence from the babysitter's home? 18 MR. LARRY CHARMLEY: Yes, they did. 19 MS. JANE LANGFORD: And I believe 20 specifically, the police seized notes, photos and took a 21 video of the babysitter's home? 22 MR. LARRY CHARMLEY: Yeah, I'd have -- 23 MS. JANE LANGFORD: Do you want me -- 24 MR. LARRY CHARMLEY: There may be more 25 than that.

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1 MS. JANE LANGFORD: -- to give you -- 2 MR. LARRY CHARMLEY: If you know the tab 3 number or... 4 MS. JANE LANGFORD: Yes, I do actually, I 5 will absolutely. It's -- so it's Tab 5, and I believe 6 page 17. 7 MR. LARRY CHARMLEY: Yes, I have it. 8 MS. JANE LANGFORD: In the chart, where 9 you indicate all the evidence that was seized in a -- in 10 association with -- 11 MR. LARRY CHARMLEY: Yes. 12 MS. JANE LANGFORD: -- warrants. 13 MR. LARRY CHARMLEY: And the babysitter's 14 apartment where he actually lived was number 2. 15 MS. JANE LANGFORD: And so that's notes, 16 photos, and I take it the video means you didn't seize a 17 video; that a video was taken of that site? 18 MR. LARRY CHARMLEY: That's correct. 19 MS. JANE LANGFORD: Okay. And in number 20 of places in the report, and I think you'll confirm, that 21 over the course of the first two (2) years of the 22 investigation, the police interviewed the babysitter on 23 multiple occasions? 24 MR. LARRY CHARMLEY: Yes, they did. 25 MS. JANE LANGFORD: And at at least one

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1 (1) of those occasions, the babysitter's interview was 2 videotaped? 3 MR. LARRY CHARMLEY: Yes. 4 MS. JANE LANGFORD: And although never 5 successfully completed, the police, at least, attempted 6 to obtain or conduct a polygraph test on the babysitter? 7 MR. LARRY CHARMLEY: Yeah, three (3) 8 times, I think. 9 MS. JANE LANGFORD: And various other 10 witnesses were interviewed who might have had occasion to 11 observe Jenna with the babysitter on the night of Jenna's 12 death, including Jenna's sister? 13 MR. LARRY CHARMLEY: Yes. 14 MS. JANE LANGFORD: The friends of the 15 babysitter who attended on the evening of Jenna's death. 16 They were also interviewed? 17 MR. LARRY CHARMLEY: Yes, they were. 18 MS. JANE LANGFORD: And the babysitter's 19 mother, who I understand was also a suspect, but in 20 addition to that, may have had observations as to the 21 interaction between her son and Jenna on the night of her 22 death? 23 MR. LARRY CHARMLEY: That's right. 24 MS. JANE LANGFORD: And finally, I note 25 that various medical records were seized in this case

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1 including some medical -- medical records concerning the 2 babysitter's consultation of -- for psychiatric 3 counselling? 4 MR. LARRY CHARMLEY: Yes. 5 MS. JANE LANGFORD: And you note, sir, in 6 your report that by 1999 the police thought they had done 7 everything -- and I'm quoting you here -- 8 MR. LARRY CHARMLEY: Mm-hm. 9 MS. JANE LANGFORD: -- "to try to prove 10 the babysitter was responsible"? 11 MR. LARRY CHARMLEY: Yes. 12 MS. JANE LANGFORD: And I take it you 13 agree with that assessment? 14 MR. LARRY CHARMLEY: Yes. It was my 15 belief that they felt they had done everything they 16 possibly could. 17 MS. JANE LANGFORD: And the babysitter 18 cooperated through that investigation? 19 MR. LARRY CHARMLEY: Yes, he did. 20 MS. JANE LANGFORD: And his story 21 remained consistent through that initial investigation? 22 MR. LARRY CHARMLEY: Yes, it did. 23 MS. JANE LANGFORD: He never gave any 24 statements that were suspicious or inculpatory apart from 25 the statement about the burn on Jenna's face?

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1 MR. LARRY CHARMLEY: That's rig -- I 2 mean, you'd be suspicious of the number of accidents that 3 occurred, but he remained consistent that he -- he didn't 4 do anything purposefully. 5 MS. JANE LANGFORD: Fair enough. And you 6 also note that the police thought that the babysitter was 7 too young, and although you didn't say this, you do refer 8 to his intelligence level, and you indicate that the 9 police thought it was unlikely that the babysitter could 10 withstand cons -- the constant pressure placed upon him 11 by the police during the investigation? 12 MR. LARRY CHARMLEY: That's right. I 13 think they felt they -- they had done what they could do 14 with the babysitter and were believing what he had to say 15 because of his age, and he had withstood that over a 16 number of years. 17 MS. JANE LANGFORD: And so, Sergeant 18 Charmley, you would agree with me that there is simply no 19 evidence to support the allegation that the police either 20 did not investigate the babysitter or inadequately 21 investigated the babysitter at any time during the 22 investigation? 23 MR. LARRY CHARMLEY: Absolutely not. 24 MS. JANE LANGFORD: And they certainly 25 didn't fail to investigate the babysitter or adequately

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1 investigate the babysitter on the base of advice -- on 2 the basis of advice received from Dr. Smith? 3 MR. LARRY CHARMLEY: No, they continued 4 to investigate the babysitter. When you say "on the 5 advice of Dr. Smith," I don't know if you're -- I don't 6 think he ever advised them not to investigate the 7 babysitter. 8 MS. JANE LANGFORD: That's what I was 9 getting at. 10 MR. LARRY CHARMLEY: Yeah. 11 MS. JANE LANGFORD: And as distinct from 12 the police's conclusions, at least initially, about the 13 babysitter, you report in your review that the police did 14 conclude that they had reasonable and probable grounds to 15 charge Jenna's mother in September of 1997, correct? 16 MR. LARRY CHARMLEY: That's correct. 17 MS. JANE LANGFORD: And I take it that 18 you, upon review of their initial investigation, agreed 19 with that assess -- assessment in that you also believed 20 that the police had reasonable and probable grounds to 21 lay charges against Jenna's mother? 22 MR. LARRY CHARMLEY: I would agree with 23 that, yes. 24 MS. JANE LANGFORD: And I take it from 25 your review of the file that those reasonable and

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1 probable grounds include statements made by Jenna's 2 mother to the police including to the undercover police 3 officer? 4 MR. LARRY CHARMLEY: That's right. 5 MS. JANE LANGFORD: And they include the 6 failed polygraph test? 7 MR. LARRY CHARMLEY: That -- that 8 wouldn't be as strong as evidence as -- as the other 9 evidence. 10 MS. JANE LANGFORD: But it would have 11 been included in the pot of evidence that would have -- 12 MR. LARRY CHARMLEY: Yes. 13 MS. JANE LANGFORD: -- been considered? 14 And as well, the police received an anonymous letter 15 implicating Jenna's mother, and that was in the pot of 16 evidence considered? 17 MR. LARRY CHARMLEY: Yes. It didn't 18 specifically implicate her by name, but it was obvious 19 from somebody that they believed somebody in that 20 household had inflicted the injuries -- 21 MS. JANE LANGFORD: And -- 22 MR. LARRY CHARMLEY: -- during a certain 23 time period. 24 MS. JANE LANGFORD: -- and the police 25 investigation revealed that it -- the only person in that

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1 household on the evening of January 20th was Jenna's 2 mother? 3 MR. LARRY CHARMLEY: Yes, among other 4 siblings. 5 MS. JANE LANGFORD: Fair enough, -- 6 MR. LARRY CHARMLEY: Yeah. 7 MS. JANE LANGFORD: -- fair enough. And 8 also in the evidence that the police had available to 9 them was the history of Children's Aid Society 10 apprehension of Jenna and her sister four (4) months 11 prior to her death due to inability to adequately provide 12 care for the children? 13 MR. LARRY CHARMLEY: Yes. 14 MS. JANE LANGFORD: And finally upon 15 arresting Jenna's mother, the police obtained additional 16 information from her specifically, and I refer to her 17 confession to physically assaulting Jenna on January 18 20th, the night before her death? 19 MR. LARRY CHARMLEY: Yes. 20 MS. JANE LANGFORD: And her confession 21 that she was under the influence of marijuana that 22 evening and, as well, on the day of January 21st. 23 MR. LARRY CHARMLEY: Yes. 24 MS. JANE LANGFORD: So all of this was 25 known to the police at the time that they laid charges

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1 against Jenna's mother, as far as you understand? 2 MR. LARRY CHARMLEY: Some of it was 3 learned -- well, before the charge was laid, after the 4 arrest? 5 MS. JANE LANGFORD: After the arrest, 6 yes. 7 MR. LARRY CHARMLEY: Yes. 8 MS. JANE LANGFORD: Fair enough. At the 9 time the lay the charges, though. 10 MR. LARRY CHARMLEY: Yes. 11 MS. JANE LANGFORD: All right. And I 12 take it you would agree with me that together with Dr. 13 Smith's opinion, all of this evidence gave grounds to the 14 police to lay charges against Jenna's mother. 15 MR. LARRY CHARMLEY: Yes, it did. 16 MS. JANE LANGFORD: It was not 17 exclusively Dr. Smith's advice that lent to -- led to the 18 charges against Jenna's mother. 19 MR. LARRY CHARMLEY: Not exclusively. 20 21 (BRIEF PAUSE) 22 23 MS. JANE LANGFORD: Turning to a new 24 topic for a moment, and that is the issue of the hair, or 25 the thread, or the fibre.

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1 Sergeant Charmley, your report notes that 2 in the early hours of January 22nd, Constable Steven 3 Rudback arrived at the Peterborough Civic Hospital to, I 4 quote from your report, 5 "gather information and for continuity 6 purposes." 7 MR. LARRY CHARMLEY: That's right. 8 MS. JANE LANGFORD: And I take it one (1) 9 of your sources in making that statement was Constable 10 Rudback's Will Say statement and handwritten notes that 11 he took when -- of that attendance at the hospital. 12 MR. LARRY CHARMLEY: That's right. 13 MS. JANE LANGFORD: All right. And if we 14 could just turn for a moment to tab 9, and it's PFP 15 document number 073993, and it's actually a couple of 16 pages in. It's the Will Say statement of Steven Rudback 17 taken on January 1st, 1997. 18 Do you see that, Sergeant Charmley? I 19 think that's it. It's -- yeah, it's a typed written one 20 (1) and there's also a handwritten one (1); I think 21 you've got that. 22 MR. LARRY CHARMLEY: Yes. Yes. 23 MS. JANE LANGFORD: All right. And when 24 we look at this Will Say statement, you will note that 25 Sergeant Rudback states that he attended Civic Hospital,

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1 on the first line, 2 "to maintain continuity of the victim 3 in this matter, and to gather pertinent 4 evidence regarding clothing, fluid 5 samples..." 6 et cetera, do you see that? 7 MR. LARRY CHARMLEY: That's right, yes. 8 MS. JANE LANGFORD: Okay. And then if we 9 look at the beginning of that same tab, which are the 10 handwritten notes of Sergeant Rudback, and that, Mr. 11 Registrar, is PFP072916. 12 And if we -- so these are his handwritten 13 notes, correct? 14 MR. LARRY CHARMLEY: Yes, they are. 15 MS. JANE LANGFORD: And you would have 16 made reference to these when you did your report? 17 MR. LARRY CHARMLEY: Yes, I did. 18 MS. JANE LANGFORD: All right. And so if 19 we look at page 3, on the second half of the page, down 20 by the break -- 21 MR. LARRY CHARMLEY: Yes. 22 MS. JANE LANGFORD: -- you'll see the 23 very first entry, it says -- and I think it says, and you 24 can confirm if I'm -- if I'm right: 25 "While with Dr. Thompson, nurse purnt -

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1 - pointed out thread on vaginal area 2 partly imbedded [bracket] (inserted 3 between labia)." 4 Do you see that? 5 MR. LARRY CHARMLEY: Yes, I do. 6 MS. JANE LANGFORD: I take it you would 7 have reviewed that. 8 MR. LARRY CHARMLEY: Yes, I did. 9 MS. JANE LANGFORD: All right. And so 10 this note suggests to you, and -- and I think to us, if 11 you would agree, that at the time that Constable Rudback 12 attended at the hospital he had seen a foreign object, or 13 what he thought was a foreign object, in Jenna's vaginal 14 area, correct? 15 MR. LARRY CHARMLEY: That's correct. 16 MS. JANE LANGFORD: All right. And we 17 know that you spoke to Constable Rudback about this note 18 when you did your review in 2001. 19 MR. LARRY CHARMLEY: Yes. 20 MS. JANE LANGFORD: And I understand that 21 Constable Rudback told you at the time that he was aware 22 of the importance of his observations that morning and 23 would have carefully examined the object. 24 MR. LARRY CHARMLEY: Yes. 25 MS. JANE LANGFORD: All right. And we

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1 can assume by that, that after carefully examining the 2 object, he concluded that it was a thread. 3 MR. LARRY CHARMLEY: That's correct. 4 MS. JANE LANGFORD: All right. And we 5 know from the record that he did not seize that thread at 6 the time he attended at the hospital? 7 MR. LARRY CHARMLEY: No, he did not. 8 MS. JANE LANGFORD: All right. And he 9 did seize the diaper and some clothing from Jenna -- 10 MR. LARRY CHARMLEY: That's right. 11 MS. JANE LANGFORD: -- at the hospital? 12 MR. LARRY CHARMLEY: Yes. 13 MS. JANE LANGFORD: All right. And I 14 take it that we can then conclude or we have to assume 15 that Constable Rudback did not believe the thread was 16 relevant to the investigation because he did not seize 17 it? 18 MR. LARRY CHARMLEY: Well, he wouldn't -- 19 he wouldn't seize something like that off of a body, he 20 would leave it on the body. 21 MS. JANE LANGFORD: Fair enough. And 22 then you would assume then if he thought it was relevant 23 and important for someone else to at least observe it and 24 perhaps seize it, that would have brought -- been brought 25 to the attention of the next officer who had the next

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1 responsibility in the continuity of evidence? 2 MR. LARRY CHARMLEY: That's corr -- prob 3 -- it should have been passed along. 4 MS. JANE LANGFORD: And you're assuming 5 it was not but you, in fact, don't know whether or not it 6 was passed on? 7 MR. LARRY CHARMLEY: I don't know if it 8 was. I -- I can assume that his notes would have been 9 left prior to his going off shift for the investigative 10 team to review them. 11 MS. JANE LANGFORD: And in fact, as we've 12 heard from Constable Kirkland, it's -- in his one (1) 13 briefing that he did with Dr. Smith, it's actually a 14 practice of physicians when they're briefing -- sorry, 15 police officers, when they're briefing the next police 16 officer to make reference to their notes when doing so if 17 they're in person with that new police officer who comes 18 on shift? 19 MR. LARRY CHARMLEY: Yes. 20 MS. JANE LANGFORD: That's not an 21 uncommon practice? 22 MR. LARRY CHARMLEY: No. 23 MS. JANE LANGFORD: So if -- and I 24 recognize that we're speculating here. But if Sergeant 25 Rudback was in the presence of the police officers who

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1 took over continuity of the body, it is not unreasonable 2 to assume that he briefed them and he briefed them with 3 reference to his notes? 4 MR. LARRY CHARMLEY: That would be 5 correct, yes. 6 MS. JANE LANGFORD: But in any event, 7 Sergeant Charmley, you would agree with me that at least 8 at day one (1) of the police investigation into Jenna's 9 death the Peterborough Police were aware of a thread that 10 was found in Jenna's vaginal area? 11 MR. LARRY CHARMLEY: Certainly one (1) 12 member was anyway. 13 MS. JANE LANGFORD: Fair enough. 14 MR. LARRY CHARMLEY: And from this very 15 same note, Sergeant Charmley, and I always hesitate 16 because I get Constable and Sergeant and Detective 17 confused, so -- 18 MR. LARRY CHARMLEY: That's okay. 19 MS. JANE LANGFORD: -- no -- no 20 disrespect to you on that. 21 Sergeant Charmley, we note from this 22 record of Constable Rudback that there was another person 23 present when the nurse pointed out the thread in the 24 vaginal area and that was Dr. Thompson. 25 MR. LARRY CHARMLEY: Yes.

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1 MS. JANE LANGFORD: It says: 2 "While with Dr. Thompson, nurse pointed 3 out thread on vaginal area." 4 MR. LARRY CHARMLEY: Yes. 5 MS. JANE LANGFORD: All right. And you 6 understand that Dr. Thompson was the investigating 7 coroner into Jenna's death? 8 MR. LARRY CHARMLEY: Yes, he was. 9 MS. JANE LANGFORD: All right. And to 10 your knowledge, and at least when I reviewed your report 11 I found no reference to it and it's not in the evidence, 12 Dr. Thompson did not seize the thread? 13 MR. LARRY CHARMLEY: No, he did not. 14 MS. JANE LANGFORD: And I could find no 15 documentation on the part of Dr. Thompson of the 16 existence of this thread. 17 Is that your understanding? 18 MR. LARRY CHARMLEY: I couldn't find 19 anything either. 20 MS. JANE LANGFORD: All right. 21 MR. LARRY CHARMLEY: No. 22 MS. JANE LANGFORD: And that includes the 23 warrant for post-mortem examination, which was given to 24 the pathologist, in this case, Dr. Smith. 25 There was no mention of the thread in that

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1 warrant? 2 MR. LARRY CHARMLEY: No, there was not. 3 MS. JANE LANGFORD: And specifically, 4 there was no direction to Dr. Smith to seize the thread 5 and analyse that thread? 6 MR. LARRY CHARMLEY: No. 7 MS. JANE LANGFORD: So that as at day one 8 (1) of the investigation into Jenna's death, not only 9 does -- did one (1) member of the Peterborough Civic 10 Police -- not only did one (1) member have awareness of 11 the thread found in the vaginal area, but the coroner 12 apparently did as well? 13 MR. LARRY CHARMLEY: Apparently. If he 14 was present while it was mentioned, yes. 15 MS. JANE LANGFORD: And you have no 16 reason to doubt Sergeant Rudback's notes? 17 MR. LARRY CHARMLEY: Well, he -- he says, 18 "While Dr. Thompson was there" but I don't know in 19 proximity where Dr. Thompson was. 20 MS. JANE LANGFORD: You would agree with 21 me that it suggests at least that Dr. Thompson -- 22 MR. LARRY CHARMLEY: It would be -- 23 MS. JANE LANGFORD: -- was present? 24 MR. LARRY CHARMLEY: -- suggestive that 25 he was there.

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1 MS. JANE LANGFORD: Fair enough. 2 And I take it you would agree with me that 3 both Sergeant Rudback, and presumably the investigating 4 coroner Dr. Thompson, would have recognized the 5 importance of careful observation and have closely 6 examined any findings they had, and have documented and, 7 most importantly, conveyed that information to the 8 pathologist if, in fact, they thought it was relevant? 9 MR. LARRY CHARMLEY: I would hope so. 10 MS. JANE LANGFORD: All right. And so 11 one (1) possible explanation for the absence of this 12 information as it got passed through the chain, is it 13 neither thought it was relevant, correct? 14 MR. LARRY CHARMLEY: I don't know about 15 that. I don't know if they would think it was not 16 relevant, but I can see when there's a lot of stuff going 17 on, forgetting to relay that information, as much as you 18 may think it's relevant, which is a lot of my talk before 19 about why there should be actual documents handed over. 20 MS. JANE LANGFORD: Fair enough. And 21 that -- that is one (1) possible explanation, but given 22 that neither seized the hair or made reference to -- and 23 specifically, the coroner gave direction to Dr. Smith or 24 didn't give direction to Dr. Smith, it's one (1) 25 explanation -- not the only explanation -- but one (1)

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1 explanation is that neither thought it was relevant? 2 MR. LARRY CHARMLEY: I can see people 3 thinking that, but I don't know if that's what they 4 thought. 5 MS. JANE LANGFORD: Well, we -- we won't 6 know that, will we? In any event, you did not find, in 7 any of your review of the records, any direction to Dr. 8 Smith about this thread from -- that was discovered at 9 the hospital of -- the Peterborough Civic Hospital? 10 MR. LARRY CHARMLEY: No, I did not. 11 MS. JANE LANGFORD: Fair enough. 12 Constable Kirkland, I'm not ignoring you. On the same 13 topic of the hair, you were one (1) of the officers who 14 relieved Sergeant Rudback on the beginning of the working 15 day on January 22nd, first thing in the morning. 16 MR. SCOTT KIRKLAND: No, I -- I never saw 17 Constable Rudback. 18 MS. JANE LANGFORD: All right. Well, why 19 don't we -- I'm going to take you to his handwritten 20 notes for a minute, and you may be right, I may be 21 misreading his note on this. I believe it is at the same 22 Tab, so Tab 9, page 5 of Constable Rudback's handwritten 23 notes. 24 And at -- towards the bottom of the page 25 at the entry at 07:08, which I take it means eight (8)

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1 minutes after 7:00 in the morning? You see that it says 2 PC Kirkland, Inspector Vandervelde on scene into morgue? 3 MR. SCOTT KIRKLAND: Yes, I do. 4 MS. JANE LANGFORD: All right. And we 5 know frm Constable Rudback's notes that he was, in fact, 6 babysitting the -- the body in the morgue. 7 Does that help you refresh your memory as 8 to whether or not you would have seen Sergeant Rudback 9 the morning of January 22nd? 10 MR. SCOTT KIRKLAND: I don't recall 11 seeing Constable Rudback. I dealt -- 12 MS. JANE LANGFORD: Fair enough. 13 MR. SCOTT KIRKLAND: -- with Constable 14 Balentine. 15 MS. JANE LANGFORD: Fair enough. 16 MR. SCOTT KIRKLAND: He may have been 17 there, he may have seen me, but -- 18 MS. JANE LANGFORD: But you don't reca -- 19 have a specific recollection? 20 MR. SCOTT KIRKLAND: No, and I -- no note 21 of talking with him or -- 22 MS. JANE LANGFORD: Fair enough, fair 23 enough. And I noted your comment about briefing, you've 24 indicated that you recall speaking to Sergeant Balentine. 25 Do you have any knowledge of whether Sergeant Rudback

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1 briefed any of -- Sergeant Balentine or Sergeant 2 Vandervelde, and you said he didn't brief you. 3 But do you have any knowledge about Van -- 4 Sergeant Vandervelde or Sergeant Balentine? 5 MR. SCOTT KIRKLAND: Both Balentine and 6 Rudback are constables, and -- 7 MS. JANE LANGFORD: I'm sorry. 8 MR. SCOTT KIRKLAND: -- Vandervelde was 9 an inspector at that time. No, I just -- to tell you. 10 Excuse me. No, I don't know where Constable Balentine 11 got his information, but it was him that passed on the 12 information to -- to me. 13 MS. JANE LANGFORD: And I think you've 14 indicated that you would like coming out of this Inquiry, 15 a protocol for the Forensic Identification Officer. 16 And I take it you would also agree with me 17 that, perhaps, in that protocol would be instruction to 18 Forensic Identification Officers to be sure to speak to 19 the officer who has continuity of the body before taking 20 it to the next scene or the next place? 21 MR. SCOTT KIRKLAND: Well, what I was 22 referring to actually was a protocol for my -- or 23 identification officer's conduct at the actual autopsy. 24 MS. JANE LANGFORD: I -- I'm aware of 25 that.

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1 MR. SCOTT KIRKLAND: The -- the other may 2 not be practical. I -- I don't know. When I got there, 3 I was directed to Constable Balentine, and he briefed me. 4 I -- I wouldn't have known at that time what part 5 Constable Rudback had played in the investigation at all. 6 So I don't know. 7 MS. JANE LANGFORD: You would have hoped 8 to have learned what -- what was contained in his notes, 9 even if you didn't, you would have wished you had? 10 MR. SCOTT KIRKLAND: Oh, in hindsight, 11 yes. 12 MS. JANE LANGFORD: Yes. 13 MR. SCOTT KIRKLAND: All the information 14 I could have had would have been helpful, yes. 15 MS. JANE LANGFORD: And given that he was 16 the officer who had continuity of the body, a protocol 17 suggesting that the -- the Forensic Identi -- Identifying 18 Officer speak to that officer who has possession of the 19 body would be a good recommendation? 20 MR. SCOTT KIRKLAND: If it -- if it was 21 practical. But often, by the time the identification 22 officer gets there, it's the second or third person who - 23 - excuse me -- who is -- actually has continuity of the 24 body. 25 It -- it wouldn't always be -- and I

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1 arrived just after seven o'clock. Had I arrived just 2 after 8:00, likely it would have been an entirely 3 different shift that was on and -- and -- 4 MS. JANE LANGFORD: Fair enough. I take 5 it though, you would agree with me that the presence of a 6 foreign body on Jenna's body would have been something 7 that you would have liked to have received in your 8 briefing from Sergeant Balentine? 9 MR. SCOTT KIRKLAND: Well, yes, and I -- 10 it would have been useful for us. 11 MS. JANE LANGFORD: And the purpose of 12 that briefing was to then take that information and share 13 it with the pathologist? 14 MR. SCOTT KIRKLAND: Yes. 15 MS. JANE LANGFORD: All right. Now I 16 know you said you don't recall speaking with Sergeant 17 Rudback, and you've indicated your notes refer to a 18 conversation with Detective -- 19 MR. SCOTT KIRKLAND: Constable Balentine. 20 MS. JANE LANGFORD: Constable Balentine. 21 Is it possible you spoke to Sergeant Rudback that morning 22 and just simply don't recall it today? 23 MR. SCOTT KIRKLAND: It's possible I 24 nodded to him and said hello, but I don't think it's 25 possible that I would have had any -- there would be any

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1 exchange of information for us -- between us in respect 2 to this case. 3 MS. JANE LANGFORD: Fair enough. 4 MR. SCOTT KIRKLAND: I would have noted 5 that if it -- 6 MS. JANE LANGFORD: Fair -- fair enough. 7 In any event, you did attend the autopsy? 8 MR. SCOTT KIRKLAND: Yes. 9 MS. JANE LANGFORD: All right. And you 10 spoke with Dr. Smith? 11 MR. SCOTT KIRKLAND: I did. 12 MS. JANE LANGFORD: And you gave Dr. 13 Smith a briefing of the information you received from the 14 Peterborough Civic Hospital? 15 MR. SCOTT KIRKLAND: Yes. 16 MS. JANE LANGFORD: And that information, 17 you believe, came exclusively from Inspector Balentine? 18 MR. SCOTT KIRKLAND: Constable Balentine; 19 that was the only source I had, yes. 20 MS. JANE LANGFORD: Okay. Now I assume 21 then if -- you're saying if Sergeant Rudback had told you 22 or anyone else about the thread, you would have passed 23 that on to Dr. Smith? 24 MR. SCOTT KIRKLAND: Yes. 25 MS. JANE LANGFORD: All right. You

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1 wouldn't have withheld that information? 2 MR. SCOTT KIRKLAND: No. 3 MS. JANE LANGFORD: All right. Now you - 4 - you testified that this issue of a thread or a hair or 5 a fibre, did not come up, to the best of your 6 recollection, during the autopsy of Jenna? 7 MR. SCOTT KIRKLAND: No, I heard no 8 mention of it, and it was not directed towards us. 9 MS. JANE LANGFORD: All right. And you 10 say that notwithstanding with present knowledge, that 11 Sergeant Rudback saw a thread -- thought it was a thread 12 and did not seize it. 13 And you've also been told that Dr. Smith 14 says he saw something, understood it was a contaminant, 15 seized it, but did not submit it for analysis. 16 And you still maintain, notwithstanding 17 both of those people's experience with the thread or the 18 hair or the fibre, that this did not come out during the 19 autopsy? 20 MR. SCOTT KIRKLAND: No, I -- I did not 21 see anything. I -- the first I heard of it, and it was 22 identified as a fibre to me, was long after -- I think 23 perhaps even after I retired, when it came up in -- in 24 Larry Charmley's subsequent investigation. 25 MS. JANE LANGFORD: And indeed, Detective

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1 Charmley called you to ask you about the -- the fibre in 2 2001? 3 MR. SCOTT KIRKLAND: Yes. And he asked 4 me to prepare a statement. 5 MS. JANE LANGFORD: All right. 6 MR. SCOTT KIRKLAND: Which I did. 7 MS. JANE LANGFORD: And perhaps we could 8 just for a moment turn to Detective -- or -- now I'm 9 really confused. 10 MR. LARRY CHARMLEY: That's okay. 11 MS. JANE LANGFORD: Sergeant Charmley's 12 handwritten notes of his conversation with you, which I 13 believe is at Tab... 14 15 (BRIEF PAUSE) 16 17 MS. JANE LANGFORD: -- 4 -- nope, sorry, 18 Tab 3. Now I'm even wrong -- Tab 2 -- Tab 2, and that's 19 PFP072719. 20 21 (BRIEF PAUSE) 22 23 MS. JANE LANGFORD: And if we look to 24 page 26, sir, and over... 25

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1 (BRIEF PAUSE) 2 3 MS. JANE LANGFORD: You might find it 4 easier to read on -- in front of you, just because the 5 handwriting, although very tidy, is small. 6 MR. SCOTT KIRKLAND: And my eyes are very 7 old. 8 MS. JANE LANGFORD: All right, and if we 9 look at November 19th, 2001, down on the bottom right- 10 hand side of the note. The sec -- the second entry there 11 is at 10:40. So bottom right-hand under November 19th. 12 Do you see that, sir? 13 MR. SCOTT KIRKLAND: No, I don't. 14 COMMISSIONER STEPHEN GOUDGE: Lower 15 right-hand corner. 16 MR. SCOTT KIRKLAND: Oh, yes, I do. 17 18 CONTINUED BY MS. JANE LANGFORD: 19 MS. JANE LANGFORD: All right. So I'll 20 just read it out. This is November 19th, 2001 and these 21 are Sergeant Charmley's handwritten notes: 22 "10:40, spoke to Scott Kirkland, 23 retired, on phone about autopsy and his 24 recollection of a hair or fibre taken 25 from vaginal area. Had no recollection

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1 of Smith seizing anything from vaginal 2 area or any discussion about the same. 3 Cannot believe he would suggest it was 4 not important, not necessary to 5 examine. Indicated that Smith 6 basically controlled autopsy, and he 7 was directed what photos -- what 8 pictures to take and what was 9 important. Indicated Smith also had 10 someone taking pictures, and that 11 person probably took more photos than 12 he did." 13 And then it continues at -- to 13:15, and 14 it says: 15 "Received a call back from Scott 16 Kirkland. Did recall one (1) autopsy 17 with Dr. Smith, not sure if male or 18 female, in which Smith indicated a 19 fibre was found in the vaginal or groin 20 area, but that this was common from 21 clothing and was not significant. Did 22 not recall anything further. I'd also 23 advise that he was unaware of any hair 24 being mentioned prior to attending 25 autopsy for XXXX."

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1 Do you see that? 2 MR. SCOTT KIRKLAND: Yes. 3 MS. JANE LANGFORD: All right. I -- I 4 take it, sir, that today when you testified that the 5 memory you had about Dr. Smith discussing a fibre 6 occurred during the post-mortem of a drowning death; that 7 today is the first time that you have had that 8 recollection and have reported it to anyone in this case. 9 MR. SCOTT KIRKLAND: Yeah, the first time 10 I've reported that. I -- I think I -- I might have 11 recalled it, like since talking to Larry, since my 12 statement, and -- because I was trying to think just what 13 it was that was -- was nagging at me, and I do recall 14 there was a drowning in which the undershorts of a -- of 15 the young boy. 16 There was a bunch of red and blue fibres 17 kind of balled up, as -- as they often get, and -- and 18 talking with Dr. Smith about that and us agreeing that it 19 was just something that often occurs and -- and it was 20 not significant, and -- and it was determined that it was 21 a drowning, as -- as suspected. 22 MS. JANE LANGFORD: And so everything but 23 that last sentence that you just gave, that it was 24 determined it was a drowning, sounds awfully like the 25 report that Dr. Smith gave of the autopsy -- of Jenna's

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1 autopsy, and the discussion that he had with you and 2 others present about the hair or the thread, and not 3 withstanding Sergeant Rudback's notes and Dr. Smith's 4 recollection, you still maintain that it was not at 5 Jenna's autopsy that that discussion occurred. 6 MR. SCOTT KIRKLAND: No, it wasn't, at 7 least, not as I recall. 8 MS. JANE LANGFORD: Fair enough. And I 9 take it, sir, you would acknowledge with me that your 10 memory of the incidences in 1997 is -- is not perfect 11 today? 12 MR. SCOTT KIRKLAND: Well, not perfect, 13 no. 14 MS. JANE LANGFORD: And in fact, it's 15 not, indeed, probably very good sitting here ten (10) 16 years after the fact. 17 MR. SCOTT KIRKLAND: It's fairly good, 18 but -- 19 MS. JANE LANGFORD: Well, sir, I -- I 20 question you on that because in 2001, you couldn't 21 remember whether or not it was Jenna's autopsy that the 22 discussion of the fibre came up. 23 MR. SCOTT KIRKLAND: Well, it was -- 24 that's the first time that it was -- that I heard about a 25 fibre in my -- what I was trying to do at that time is

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1 trying honestly to say what I could remember. 2 And that -- and there was something 3 nagging at me about some fibres on one (1) of the -- the 4 autopsies, and I now remember that that -- I'm sure that 5 is the one (1), because I do remember that there was a 6 case of the drowning where there was all these fibres -- 7 MS. JANE LANGFORD: And -- 8 MR. SCOTT KIRKLAND: -- and I'm thinking 9 that this is what was nagging at me. 10 MS. JANE LANGFORD: And at no time prior 11 to today did you report that to anyone? 12 MR. SCOTT KIRKLAND: Probably not, 13 because I hadn't talked to anyone about it. 14 MS. JANE LANGFORD: Well, sir, you -- you 15 did speak to Commission counsel about this. 16 MR. SCOTT KIRKLAND: On -- on Thursday, 17 this last Thursday, yes. 18 MS. JANE LANGFORD: And today remains the 19 first time you've told anyone about this. 20 MR. SCOTT KIRKLAND: It may be; I'm -- 21 I'm not sure whether I -- yes, it probably is. 22 MS. JANE LANGFORD: Now, we've learned 23 from the records and Sergeant Charmley's report that you 24 did photograph the body at Peterborough Civic Hospital, 25 as well as at the autopsy, correct?

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1 MR. SCOTT KIRKLAND: Yes. 2 MS. JANE LANGFORD: All right, and we 3 know that one (1) of your photographs captured the hair 4 or the thread, correct? 5 MR. SCOTT KIRKLAND: I haven't seen that, 6 but I was told that -- that it is in one (1) of my 7 photographs. 8 MS. JANE LANGFORD: Fair enough. And 9 presumably, that's the same hair or thread that Sergeant 10 Rudback appears to have recorded in his records. 11 You would agree with me that that's a safe 12 assumption? 13 MR. SCOTT KIRKLAND: Yes, I would assume 14 it was the same one (1). 15 MS. JANE LANGFORD: All right. And I 16 take it you'd agree with me that presumably it's the same 17 hair or fibre that Dr. Smith refers to when he says he 18 sees something from an -- from the autopsy? 19 MR. SCOTT KIRKLAND: Yeah, I guess so. 20 Yes. 21 MS. JANE LANGFORD: All right. And I 22 assume, sir, you reviewed the photographs after they were 23 developed? 24 MR. SCOTT KIRKLAND: After they 25 developed, yes, and I -- one (1) of the things I have to

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1 do is prepare labels and affix them to the back for -- 2 three (3) copies actually -- for the different parties 3 involved. 4 MS. JANE LANGFORD: All right. And so 5 fair enough, when you were doing that labelling you would 6 have at least had to look at the photographs? 7 MR. SCOTT KIRKLAND: Yes. 8 MS. JANE LANGFORD: All right. And I 9 assume you don't have any recollection of seeing the 10 thread or the hair when you were reviewing those 11 photographs? 12 MR. SCOTT KIRKLAND: No, I don't. 13 MS. JANE LANGFORD: But you may have? 14 MR. SCOTT KIRKLAND: I don't -- I don't 15 know. I don't think so. The way the photograph was 16 described to me, it was actually taking of a picture of a 17 bruise on the knee and when I looked at it that's what I 18 would be looking at. I can't see why I would try to see 19 what else was in the -- in the photograph, but... 20 MS. JANE LANGFORD: Fair enough. 21 And you would then disagree with me that 22 it's possible that you saw it, noted it, but didn't think 23 anything of it because there had been a discussion that 24 the hair or fibre was a contaminant or irrelevant or in 25 some way not significant to the investigation?

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1 MR. SCOTT KIRKLAND: No, I have no 2 recollection of that at all. 3 MS. JANE LANGFORD: Fair enough. 4 And am I -- am I reasonable to assume that 5 Detective Lemay or Constable Lemay would also have had an 6 occasion to review the photographs? 7 MR. SCOTT KIRKLAND: I'm sure he would 8 have. I wasn't present with him when he did, but they 9 would have been available to him. 10 MS. JANE LANGFORD: And I -- I take it 11 that if an investigating officer was given photographs, 12 it's your experience from twenty-seven (27) years on the 13 Force, that investigating officers would have reviewed 14 those photographs carefully? 15 MR. SCOTT KIRKLAND: I assume he would 16 have examined them, yes. 17 MS. JANE LANGFORD: Fair enough. 18 MR. SCOTT KIRKLAND: He's very competent. 19 MS. JANE LANGFORD: Thank you. 20 Back to you, Sergeant Charmley. 21 If we could turn actually, just to make it 22 easier on you, to your homicide report at Tab 5. That's 23 PFP011009 and specifically, page 15. 24 And as I understand the structure of your 25 homicide report, you appear to, sort of, do a narrative

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1 based upon your review of the notes and the materials and 2 then, sort of, later on detail your opinion on the 3 investigation and your thoughts. 4 Is that -- is that an accurate -- 5 MR. LARRY CHARMLEY: Yeah. 6 MS. JANE LANGFORD: -- description? 7 MR. LARRY CHARMLEY: Yes. 8 MS. JANE LANGFORD: Okay. So this is in 9 the narrative section, this page of your report. 10 Correct? 11 MR. LARRY CHARMLEY: Yes. 12 MS. JANE LANGFORD: All right. And if we 13 look at the first large paragraph on that page that 14 begins, 15 "Detective Constable Lemay tried to 16 contact Dr. Smith." 17 Do you see that? 18 MR. LARRY CHARMLEY: Yes, I do. 19 MS. JANE LANGFORD: All right. And the 20 last line in that paragraph -- 21 MR. LARRY CHARMLEY: Yes. 22 MS. JANE LANGFORD: -- it says, "Further" 23 -- well, I should actually read the first -- the sentence 24 above that: 25 "Dr. Smith's feelings were that the

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1 injuries occurred prior to 17:00 hours 2 on 21 January, 1997. Further, Dr. 3 Smith had obtained a second opinion 4 from an expert at the Hospital for Sick 5 Children and there was no evidence of 6 sexual assault." 7 MS. JANE LANGFORD: Do you see that? 8 MR. LARRY CHARMLEY: That's right, yes. 9 MS. JANE LANGFORD: All right. I assume 10 that the source of that information was the handwritten 11 notes of Detective Lemay. And I want to take you to that 12 just to confirm that fact with you. 13 And so if we could look to Tab 11, and 14 these are the notes of Detective Constable Lemay -- 15 MR. LARRY CHARMLEY: Mm-hm. 16 MS. JANE LANGFORD: -- as you understand 17 them, sir? 18 MR. LARRY CHARMLEY: Yep. 19 MS. JANE LANGFORD: All right. And if we 20 could turn to page 3. There's an entry beginning at 21 16:39. 22 MR. LARRY CHARMLEY: Yes. 23 MS. JANE LANGFORD: And I should actually 24 note that this appears to be his notes, on the first 25 page, of January 22nd, 1999 -- 1997.

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1 MR. LARRY CHARMLEY: Yes. 2 MS. JANE LANGFORD: Correct? So as I 3 understand it, these are Detective Lemay's notes on the 4 very day that Jenna was pronounced dead -- 5 MR. LARRY CHARMLEY: Yes, they are. 6 MS. JANE LANGFORD: -- and the very first 7 day of the police investigation. Correct? 8 MR. LARRY CHARMLEY: Yes, they are. 9 MS. JANE LANGFORD: All right. So 10 beginning at page 3, at 16:39. Sir, do you see the entry 11 "call Doc Thompson"? 12 MR. LARRY CHARMLEY:: Yes, I do. 13 MS. JANE LANGFORD: All right. And Dr. 14 Thompson, as we know, is the coroner? 15 MR. LARRY CHARMLEY:: Yes, he was. 16 MS. JANE LANGFORD: So to the best of 17 knowledge, does this look like a note that Detective 18 Lemay has taken of a discussion he had with the coroner 19 on that day? 20 MR. LARRY CHARMLEY:: Yes, it was. 21 MS. JANE LANGFORD: All right. And we'll 22 just read the whole note: 23 "Indicates he just spoke to Dr. Smith. 24 Indicates cause of death, 25 interabdominal trauma causing

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1 laceration to stomach, bowel, liver, 2 internal organs. Evidence of fractured 3 ribs a few days old. Small amount of 4 blood under skull, internal bleeding. 5 Injury to foot, bruising between toes 6 and on heel, therefore, compression. 7 Facial injuries, old." 8 And over the page 4: 9 "No stomach contents due to rupture. 10 Note at this point, Doc Smith's feeling 11 injuries occurred prior to 5:00 p.m." 12 And then inspecifically: 13 "No evidence of sexual assault. Second 14 opinion received from Sick Kids' doctor 15 who is expert in that field." 16 MR. LARRY CHARMLEY:: That's correct. 17 MS. JANE LANGFORD: So as far as I read 18 these notes, and I would like your confirmation of this, 19 this appears to be Detective Lemay's note of a 20 conversation he had, on January the 22nd, with the 21 coroner? 22 And on that date, the coroner appears to 23 have told Detective Lemay that Dr. Smith told him he 24 obtained a consultation from an expert at Sick Kids 25 regarding the possibility of a sexual assault?

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1 MR. LARRY CHARMLEY:: That's right. 2 MS. JANE LANGFORD: That's your 3 understanding of this note? 4 MR. LARRY CHARMLEY:: That's my 5 understanding. 6 MS. JANE LANGFORD: And you have no 7 reason to doubt Constable Lemay's note? 8 MR. LARRY CHARMLEY:: No, I don't. 9 MS. JANE LANGFORD: And you have no 10 reason to doubt Dr. Thompson's advice as recorded by 11 Detective Lemay? 12 MR. LARRY CHARMLEY:: No, I don't. 13 MS. JANE LANGFORD: And at the time you 14 read this note and did your narrative, you had no reason 15 to doubt Dr. Smith's advice that he had obtained a 16 consultation from a -- a sexual assault expert on that 17 day? 18 MR. LARRY CHARMLEY:: No, I didn't. 19 MS. JANE LANGFORD: All right. And 20 indeed, 2001, when you spoke to Dr. Huyer he gave you no 21 reason to doubt that he, indeed, was present there. 22 He didn't remember it, but he gave you no 23 reason to doubt that he was there? 24 MR. LARRY CHARMLEY:: No, he did not. 25 MS. JANE LANGFORD: And I take it, sir,

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1 that you, yourself, never had any doubt that Dr. Huyer 2 was present at the autopsy? 3 MR. LARRY CHARMLEY:: Well, yeah, I 4 wonder, but... 5 MS. JANE LANGFORD: Now, you wonder, but 6 you never had any doubt when you did this entire, very 7 detailed and thorough, review of the homicide? And you 8 did indicate concerns about Dr. Smith and this was not 9 one (1) of them? 10 MR. LARRY CHARMLEY:: I believed it was 11 reasonable he was there based on the fact that Dr. Smith 12 had indicated that and Dr. Huyer's response to me. I 13 believed it was reasonable he could have been there, -- 14 MS. JANE LANGFORD: And so when my -- 15 MR. LARRY CHARMLEY:: -- but I still 16 wondered about it. 17 MS. JANE LANGFORD: Fair enough. And 18 when My Friend took you to the email reporting a 19 conversation with Dr. Cairns, and there was a suggestion 20 that Dr. Smith made a recent assurance that Dr. Huyer was 21 present. In fact, this note belies that, Dr. Smith's 22 assurance that a sexual assault expert was present was 23 not indeed a recent assurance. 24 He had given that advice to the coroner on 25 January the 22nd, 1997, that's your understanding of

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1 these notes? 2 MR. LARRY CHARMLEY:: Yes, he gave that 3 opinion to Dr. Thompson, who then relayed to Detective 4 Constable Lemay. 5 MS. JANE LANGFORD: Okay. And just as I 6 am ending my questions with you, sir, you said you 7 believed that the babysitter -- that there was evidence 8 that the babysitter had sexually assaulted Jenna? 9 MR. LARRY CHARMLEY:: Yes. 10 MS. JANE LANGFORD: All right. And I 11 just wanted to take you briefly to Tab 2 for a moment. 12 Oh, I'm sorry, not Tab 2. My apologies. I am looking at 13 -- just give me a moment -- Tab 7, page 2. 14 So this is your supplementary report, 15 correct? 16 MR. LARRY CHARMLEY:: Yes. 17 MS. JANE LANGFORD: All right. And I 18 just wanted to ask you briefly, in the third paragraph 19 there, you refer to a letter that you received from Dr. 20 Huyer. 21 MR. LARRY CHARMLEY:: Yes. 22 MS. JANE LANGFORD: All right. And at 23 that time, Dr. Huyer had reviewed numerous documents and 24 photographs that related to the possibility that Jenna 25 had been sexually assaulted?

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1 MR. LARRY CHARMLEY:: Yes. 2 MS. JANE LANGFORD: And that -- this is 3 in 2004? 4 MR. LARRY CHARMLEY:: Yes. 5 MS. JANE LANGFORD: All right. It's your 6 understanding that Dr. Huyer reinvestigated this case on 7 -- at the request of the investigators in 2004? 8 MR. LARRY CHARMLEY:: Yes, at my request 9 he did. 10 MS. JANE LANGFORD: Okay. And his 11 opinion, based on the materials that he reviewed in 2004, 12 was that 13 "Jenna suffered multiple traumatic 14 injuries in the time prior to death. 15 Examination of the genitalia did not 16 demonstrate findings specific for 17 sexual abuse. The lack of specific 18 injury to the genitalia of Jenna does 19 not rule out possible sexual abuse, but 20 indicates that forceful penetrating 21 injury did not occur." 22 Do you see that? 23 MR. LARRY CHARMLEY: Yes, I do. 24 MS. JANE LANGFORD: All right. So I take 25 it that you understand that that opinion that was

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1 rendered in 2004, by Dr. Huyer, is indeed consistent with 2 the opinion that he and Dr. Smith arrived at in 1997 when 3 doing the post-mortem examination? 4 MR. LARRY CHARMLEY: That would be. 5 MS. JANE LANGFORD: Okay. Thank you, 6 gentlemen, you've been very patient. Those are my 7 questions. 8 MR. LARRY CHARMLEY: Thank you. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Langford. Ms. Craig...? Or are you going next, Mr. 11 Wardle? 12 MR. PETER WARDLE: I am, if that's okay, 13 sir? 14 COMMISSIONER STEPHEN GOUDGE: Sure. 15 16 CROSS-EXAMINATION BY MR. PETER WARDLE: 17 MR. PETER WARDLE: Good morning, 18 officers. 19 MR. LARRY CHARMLEY: Good morning. 20 MR. SCOTT KIRKLAND: Good afternoon. 21 MR. PETER WARDLE: I'm going to call you 22 officer as well, Retired Officer Kirkland, if that's 23 okay? 24 MR. SCOTT KIRKLAND: Yes. 25 MR. PETER WARDLE: My name is Peter

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1 Wardle and I act for a number of families and caregivers 2 -- caregivers that were affected by various findings made 3 by Dr. Smith in a number of cases. 4 And one (1) of the families I act for is 5 the Waudby family, and particularly Brenda and her 6 daughter. So I just want to pick up, if I may, where My 7 Friend, Ms. Langford, left off. 8 And I'll address these questions to you, 9 Sergeant Charmley. My Friend, Ms. Langford, asked you a 10 number of questions about the initial police 11 investigation and whether the police had reasonable and 12 probable grounds to charge Brenda, do you recall that? 13 MR. LARRY CHARMLEY: Yes, I do. 14 MR. PETER WARDLE: And she went through 15 some of the details of that with you including the 16 statements that were given, and the polygraph -- failing 17 the polygraph, the history of CAS involvement, et cetera, 18 do you recall -- 19 MR. LARRY CHARMLEY: Yes. 20 MR. PETER WARDLE: -- her asking you 21 those questions? 22 MR. LARRY CHARMLEY: Yes, I do. 23 MR. PETER WARDLE: And then right at the 24 end, she said -- she asked some questions about charges 25 being laid and whether there were a number of factors

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1 including Dr. Smith's opinion that led to charges being 2 laid, and you said, "Not exclusively." Correct? 3 In other words, it wasn't -- 4 MR. LARRY CHARMLEY: Yeah -- 5 MR. PETER WARDLE: -- Dr. Smith's opinion 6 exclusively that led to charges being laid? 7 MR. LARRY CHARMLEY: That's correct. 8 MR. PETER WARDLE: And I just want to 9 pick that up for a moment. We've heard evidence already 10 from Dr. Milroy, who is a forensic pathologist from 11 England -- Wales, who examined the Jenna case, that the 12 real issue in the Jenna case was the question of timing 13 of the injuries. 14 Would you agree with that? 15 MR. LARRY CHARMLEY: I'd agree with that 16 as well, yes. 17 MR. PETER WARDLE: Okay. And we know, do 18 we not, that early on Dr. Smith was telling the 19 Peterborough Police that the child's injuries were 20 occurred in a time period that was up to twenty-four (24) 21 hours before death, correct? 22 MR. LARRY CHARMLEY: That's correct. 23 MR. PETER WARDLE: Okay. And I'm not 24 going to take you through all of the references, but just 25 if we look at one (1) of the last references that My

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1 Friend took you to, these are Officer Lemay's notes at 2 Tab 11. 3 4 (BRIEF PAUSE) 5 6 MR. PETER WARDLE: And just starting at 7 the first page, you'll see it says: 8 "These are notes of the -- of the day 9 of Denna's jeath -- of Jenna's death, 10 January 22nd. Note called received 11 from PC. Kirkland [that's you Officer 12 Kirkland] who was with Doc Smith at 13 post-mortem Toronto. Initial 14 examination deceased, abdominal injury 15 which ruptured pancreas, liver, 16 duodenal gland. Injury caused up to a 17 -- up to a few hours before, but no 18 longer than twenty-four (24) hours of 19 her death." 20 Do you see that? 21 MR. LARRY CHARMLEY: Yes. 22 MR. PETER WARDLE: And that's the 23 information that was initially received -- basically 24 right at the conclusion of the autopsy, correct? 25 MR. LARRY CHARMLEY: That's correct.

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1 MR. PETER WARDLE: And then looking over 2 a little further to -- and My Friend did go through you 3 with -- through this with you, although she was looking 4 for another reference -- if we go to the fourth page of 5 these notes. It starts off: 6 "No stomach contents due to rupture. 7 Note at this point, Dr. Smith's 8 feelings, injuries occurred prior to 9 5:00 p.m." 10 Do you see that? 11 MR. LARRY CHARMLEY: Yes, I do. 12 MR. PETER WARDLE: And if Dr. Smith had 13 said that the injuries had occurred within a few hours of 14 death, that would have led the police in a very different 15 direction, correct? 16 MR. LARRY CHARMLEY: Absolutely. I mean, 17 we wouldn't have ruled out everybody initially, but 18 generally, the investigation would have pursued that 19 avenue. 20 MR. PETER WARDLE: So the questions My 21 Friend asked you about reasonable and probable grounds; 22 reasonable and probable grounds, of course, is based on 23 the information known to the police at the time, correct? 24 MR. LARRY CHARMLEY: Yes. 25 MR. PETER WARDLE: And at the time, your

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1 opinion is that you had reasonable and probable grounds 2 to charge Brenda Waudby based on the pathology 3 information that was coming from Dr. Smith, correct? 4 MR. LARRY CHARMLEY: It -- it fit in with 5 all of the other information we investigated and found to 6 make it reasonable given that the information of an 7 assault occurring the night before and the information 8 from Dr. Smith that the injuries that caused death could 9 have occurred up to twenty-four (24) hours prior to 10 death. 11 MR. PETER WARDLE: And had Dr. Smith told 12 you, as we heard recently in this Inquiry from Dr. 13 Milroy, that the child died within a few hours, under six 14 (6) hours, from the infliction of the fatal injury, you 15 would agree with me that the police would not have had 16 reasonable and probable grounds to charge Brenda Waudby, 17 correct? 18 MR. LARRY CHARMLEY: That's correct. Had 19 I been that definite, we would not have reasonable 20 grounds. 21 MR. PETER WARDLE: Thank you, sir. 22 Officer Kirkland, I've got to ask you about the seal and 23 the sampling done at the autopsy because my curiosity is 24 aroused. 25 You said that Dr. Smith did the collection

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1 of sampling -- collection of samples, including the 2 labelling of the samples, at this autopsy. 3 Is that your recollection? 4 MR. SCOTT KIRKLAND: I don't know how 5 much he would personally collect and how much he would 6 direct his two (2) assistants to do, but none of the 7 things that were collected in that regard were turned 8 over to me. 9 MR. PETER WARDLE: Okay. 10 MR. SCOTT KIRKLAND: So when I said "all 11 the labelling", what I meant was that I didn't do it, so 12 I assume that whatever labelling was done was done by him 13 or his office. 14 MR. PETER WARDLE: Is that unusual in 15 your experience as an identification officer? 16 MR. SCOTT KIRKLAND: No, I -- I've never 17 received any -- any swabs or blood samples that were 18 going to toxicology or anything -- I've never received 19 any of them; they've always been sent by the pathologist 20 or his staff. 21 MR. PETER WARDLE: And wha -- where would 22 the pathologist get the seals and that kind -- the 23 envelopes in which samples would be taken, do they have 24 their own supply or do they get it from -- from you? 25 MR. SCOTT KIRKLAND: They'd have their

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1 own supply, and I don't know how similar they are to what 2 we have, but they would be -- I know a lot of the seals 3 that they have were CFS seals, which we did have, as 4 well, and which were provided by the Centre of Forensic 5 Sciences, and I assume, they would supply them, as well. 6 MR. PETER WARDLE: And would you have 7 gotten a log -- would it have been typical for you to get 8 a log of all the samples that were taken by the 9 pathologist and his team? 10 MR. SCOTT KIRKLAND: Not me, ultimately 11 it may have gone to the investigating officer, but no, I 12 -- I don't know even if it would have prepared the log 13 right before I left; it might have been sometime down the 14 road, perhaps even the next day; I don't know. 15 MR. PETER WARDLE: And -- and just -- and 16 maybe, Sergeant Charmley, you can help me with this. 17 At some point when you get the envelope 18 back from Dr. Smith with the hair inside it, you go and 19 look at the seal and you obviously compare it to a list, 20 is that correct? 21 MR. LARRY CHARMLEY: Yeah. 22 MR. PETER WARDLE: And is that some kind 23 of a log that must have been prepared by Dr. Smith or his 24 team during the autopsy? 25 MR. LARRY CHARMLEY: Yes, and I'm -- I

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1 don't have a copy of it here, but I would have compared 2 that to like blood samples and that that he would have 3 directly sent to the CFS for toxicology purposes, and it 4 coincided with seal numbers on other items he had 5 submitted to the CFS. 6 MR. PETER WARDLE: So -- so just let me 7 make sure I understand this. There would have been a 8 number of samples taken during the autopsy. Either Dr. 9 Smith or whoever was working with him -- perhaps one (1) 10 of the assistants -- would have written all the 11 information out. There would have been some kind of a 12 log, and eventually that made its way back to the 13 Peterborough Police. 14 MR. LARRY CHARMLEY: Yes, because we 15 would eventually get a sub -- a response from the Centre 16 of Forensic Sciences as to the content of whatever the 17 toxicology was or whatever other -- other exams were done 18 with regards, usually bodily fluids and swabs are the 19 sort of things that, in my experience, -- 20 MR. PETER WARDLE: Mm-hm. 21 MR. LARRY CHARMLEY: -- the forensic 22 pathologist sends over on their own. 23 MR. PETER WARDLE: So it sounds as if, in 24 this case, it would have been up to Dr. Smith and his 25 team to ensure that, you know, all the necessary samples,

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1 if they were -- if they were logged in some fashion, 2 anything that was supposed to be sent off for analysis 3 was done? 4 I'm just a little curious as to why no one 5 would have noticed that this particular sample had been 6 taken but, you know, it's not obviously on a -- on a log 7 sheet somewhere? 8 MR. LARRY CHARMLEY: I can speculate, but 9 I don't think you want me to do that. 10 MR. PETER WARDLE: Well, maybe you'd 11 agree with me, like, to this extent that it's highly 12 unusual -- it would be highly unusual to take a sample, 13 put it in an envelope, put a seal on the envelope, have a 14 number on the seal, and then not submit it for analysis? 15 MR. LARRY CHARMLEY: That's correct, it 16 would be. And in that sense if it was -- my thought 17 would be, if the forensic pathologist went to the extent 18 of putting his own seal on it that would be something 19 that perhaps they intended to submit rather than turn it 20 over to a police officer who would put a seal on it 21 later. 22 MR. PETER WARDLE: All right. Well, 23 we're not going to answer all of the mysteries 24 surrounding the hair today. Can I just ask you quickly 25 about the photographs.

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1 I took it from what both of you have said 2 that, first of all, Dr. Smith -- your recollection, 3 Officer Kirkland, is that Dr. Smith had his own 4 photographer at this autopsy taking photographs, correct? 5 MR. SCOTT KIRKLAND: He always did. 6 MR. PETER WARDLE: And it -- it appears 7 from what you said, Sergeant Charmley, that those 8 photographs didn't become part of the initial police 9 investigation. 10 You were only able to get them from Dr. 11 Pollanen much, much later in 2004, if I've got that 12 right? 13 MR. LARRY CHARMLEY: That's right. 14 MR. PETER WARDLE: And one (1) of those 15 photographs, as I understand it, showed the hair very 16 clearly, correct? 17 MR. LARRY CHARMLEY: Yes, it did. 18 MR. PETER WARDLE: And that might have 19 been of some assistance to the initial investigators at 20 the early stages, if they'd had that photograph? 21 MR. LARRY CHARMLEY: I would think so. 22 MR. PETER WARDLE: Okay. And similarly 23 with respect to Dr. Smith's notes, the handwritten notes 24 that have surfaced in this inquiry -- and I'll just ask 25 that they be turned up on the screen briefly. They're at

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1 Tab 44. 2 3 (BRIEF PAUSE) 4 5 MR. PETER WARDLE: Sorry, I don't have 6 the PFP number for these. I just have the -- 7 COMMISSIONER STEPHEN GOUDGE: 011082. Is 8 that what you want, Mr. Wardle? 9 MR. PETER WARDLE: That's correct. 10 11 CONTINUED BY MR. PETER WARDLE: 12 MR. PETER WARDLE: So, Sergeant Charmley, 13 you told us this morning that you only became aware of 14 these notes in the period leading up to preparation for 15 today? 16 MR. LARRY CHARMLEY: Last Thursday, 17 that's correct. 18 MR. PETER WARDLE: Okay. And is it fair 19 to say that -- that again you would have appreciated 20 having access to these notes when you were conducting 21 your investigation? 22 MR. LARRY CHARMLEY: Yes, I would. I 23 asked for them, and I was advised there -- there was none 24 -- because I wanted to include them in briefs and that 25 that I was forwarding to the Coroner's Office.

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1 MR. PETER WARDLE: And then they also 2 have been of relevance to the initial investigation team, 3 correct? 4 MR. LARRY CHARMLEY: They could be, 5 although I would expect the report would be much more in 6 detail, but. 7 MR. PETER WARDLE: And of course, since 8 you don't -- you didn't have them, they were not 9 disclosed to the defence, were they? 10 MR. LARRY CHARMLEY: No, they were not. 11 MR. PETER WARDLE: And so Mr. Hauraney 12 did not have access to them in his representation of Ms. 13 Waudby? 14 MR. LARRY CHARMLEY: Not that I'm aware 15 of. 16 MR. PETER WARDLE: And similarly, the -- 17 the phot -- the photographs that we've just been talking 18 about, since they weren't part of the police file -- that 19 is the photographs taken by Dr. Smith's team -- because 20 they were not part of the police file, it's likely that 21 they weren't disclosed to the defence either, correct? 22 MR. LARRY CHARMLEY: I wouldn't think so. 23 I don't believe they were. 24 MR. PETER WARDLE: Thank you. 25 COMMISSIONER STEPHEN GOUDGE: Mr. Wardle,

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1 when you come to an appropriate point -- 2 MR. PETER WARDLE: I am -- I just have 3 two (2) more questions, and I am done, sir. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 MR. PETER WARDLE: If you don't -- if you 6 don't mind -- 7 COMMISSIONER STEPHEN GOUDGE: No, that is 8 fine. 9 MR. PETER WARDLE: -- bearing with me? 10 COMMISSIONER STEPHEN GOUDGE: No, 11 absolutely. 12 13 CONTINUED BY MR. PETER WARDLE: 14 MR. PETER WARDLE: And, Officer Kirkland, 15 just one (1) last couple of questions about the autopsy 16 and Dr. Huyer. Your handwritten notes of the autopsy, 17 which are Tab 12. 18 I notice that you have indicated in your 19 notes who was present at the autopsy and when it began, 20 correct? 21 MR. SCOTT KIRKLAND: Yes, sir. 22 MR. PETER WARDLE: And would that have 23 been your normal practice, to record all those who were 24 present at the beginning of an autopsy? 25 MR. SCOTT KIRKLAND: Yes, sir.

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1 MR. PETER WARDLE: Okay. So just to read 2 again into the record it starts -- this is PFP101617 and 3 it's the third page in: 4 "13:00 hours. Post-mortem begins 5 conducted by Dr. Charles Smith with the 6 assistance of Don Perrin and Jimmy 7 Choi." 8 And then you go on as you've indicated to 9 document the observations that Dr. Smith provided to you. 10 And, of course, there's no indication in 11 these notes of any other person being present during the 12 autopsy, correct? 13 MR. SCOTT KIRKLAND: That's right, sir. 14 MR. PETER WARDLE: And if someone had 15 come in and -- and been there for any period of time, 16 would it have been your normal practice to record that in 17 your notes? 18 MR. SCOTT KIRKLAND: Only if -- if they 19 took part in the examination. 20 MR. PETER WARDLE: So if someone came in 21 the room just to observe you wouldn't note that, but if 22 someone actually approached the body, if I can put it 23 that way -- that may be an awkward way of putting it -- 24 then you would write that down? 25 MR. SCOTT KIRKLAND: Yes, sir.

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1 MR. PETER WARDLE: Thank you. Those are 2 all my questions. Thank you. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, 4 Mr. Wardle. 5 We will rise now, I need a few more 6 minutes at lunch for a phone call. So we will be back at 7 2:15. 8 9 --- Upon recessing at 12:51 p.m. 10 --- Upon resuming at 1:14 p.m. 11 12 THE REGISTRAR: All rise. Please be 13 seated. 14 COMMISSIONER STEPHEN GOUDGE: Okay, Ms. 15 Craig, I guess you are next. 16 17 CROSS-EXAMINATION BY MS. ALISON CRAIG: 18 MS. ALISON CRAIG: Thank you, 19 Commissioner. Good afternoon, gentlemen. 20 MR. LARRY CHARMLEY: Good afternoon. 21 MS. ALISON CRAIG: My name is Alison 22 Craig and I'm one (1) of the lawyers that acts for nine 23 (9) individuals who were convicted of crimes in cases in 24 which Dr. Smith was involved. 25 And, Sergeant Charmley, I just have one

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1 (1) brief line of questioning for you. 2 I take it you would agree that the Jenna 3 case is an excellent example of the importance of 4 thorough documentation in these types of investigations? 5 MR. LARRY CHARMLEY: Yes, I would agree. 6 MS. ALISON CRAIG: And of the importance 7 of being able to review at a later date what has gone on 8 in the investigation at various stages? 9 MR. LARRY CHARMLEY: Yes. 10 MS. ALISON CRAIG: And that people's 11 notes can sometimes be insufficient. For example, as 12 we've seen in the Jenna investigation, there was no 13 notation anywhere about what happened to this hair? 14 MR. LARRY CHARMLEY: Yes. 15 MS. ALISON CRAIG: Would you agree that 16 perhaps videotaping of the autopsy would be a good idea? 17 MR. LARRY CHARMLEY: I would think it 18 would be a good idea. I don't know if the forensic 19 pathologists would think that's a good idea or not. 20 But it would be more -- more work to be 21 done, but I would think it would more accurately tell 22 what went on at the autopsy and maybe even be of 23 assistance to the police investigators to listen to some 24 of the con -- comments that are being made and be able to 25 relate better to where certain injuries have occurred.

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1 MS. ALISON CRAIG: And you would, I 2 assume, agree that it would also be helpful to defence 3 counsel. As we can see in this case, defence counsel was 4 available -- or was aware of the -- the hair. And it 5 would have been of great assistance to him -- 6 MR. LARRY CHARMLEY: Yes. 7 MS. ALISON CRAIG: -- to be able to 8 review that? 9 MR. LARRY CHARMLEY: I would think it 10 might even be of assistance to the forensic pathologist 11 to sit there and listen to it and make notes afterwards 12 rather than trying to do notes during the autopsy. 13 MS. ALISON CRAIG: And then certainly you 14 would also agree that, as someone coming back to review 15 the case several years later, when memories have faded 16 and you're relying on essentially people's notes to 17 recall what has happened and figure out what's happened, 18 that a videotape would have been helpful for you to 19 review? 20 MR. LARRY CHARMLEY: Yes, it would have. 21 MS. ALISON CRAIG: So you would support a 22 recommendation that autopsies be videotaped from the 23 perspective of a police investigator? 24 MR. LARRY CHARMLEY: I would, yes. 25 MS. ALISON CRAIG: Officer Kirkland, do

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1 you have any thing to add to that? 2 MR. SCOTT KIRKLAND: No, I think it would 3 be a good idea. An excellent idea, actually. 4 MS. ALISON CRAIG: Thank you. Those are 5 my questions, Mr. Commissioner. 6 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 7 Craig. 8 Mr. Sokolov...? 9 MR. LOUIS SOKOLOV: No questions, Mr. 10 Commissioner. 11 COMMISSIONER STEPHEN GOUDGE: Thank you. 12 Ms. Greene...? 13 14 CROSS-EXAMINATION BY MS. MARA GREENE: 15 MS. MARA GREENE: Good afternoon. 16 MR. LARRY CHARMLEY: Good afternoon. 17 MS. MARA GREENE: My name is Mara Greene 18 and I act for the Criminal Lawyers Association. And I 19 have only one (1) area that I'd like to get into with 20 you, and it's not specifically about the Jenna case, it's 21 more of a systemic issues, and in fact, relates somewhat 22 to your second policy, Sergeant Charmley, that you've put 23 forward -- or sorry, the second recommendation. 24 And as I understand your recommendations 25 is that it would be ideal if when the officers went into

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1 the autopsy, they gave the pathologist all the 2 information they had and that would help guide the 3 pathologist in his or her autopsy, correct? 4 MR. LARRY CHARMLEY: Yes, it could help 5 provide some guidance, for sure. 6 MS. MARA GREENE: And then similarly, 7 once the autopsy is completed, it would then be helpful 8 for the pathologist to relate any key information to the 9 investigators for -- to guide them in the rest of their 10 investigation, correct? 11 MR. LARRY CHARMLEY: That's correct. 12 MS. MARA GREENE: Okay. And in this 13 particular case, in the Jenna case, you came in, sort of, 14 late in the day to provide a, sort of, fresh, unbiased 15 look at the case, correct? 16 MR. LARRY CHARMLEY: Yes. 17 MS. MARA GREENE: And you would agree or 18 would you agree that sometimes when investigators are 19 being guided on what to investigate, it may, in fact, 20 focus their investigation and keep them from 21 investigating all possible alternatives. 22 Is that fair? 23 MR. LARRY CHARMLEY: I'm not -- 24 MS. MARA GREENE: Well, have you heard -- 25 well --

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1 MR. LARRY CHARMLEY: -- sure what you're 2 saying there. 3 MS. MARA GREENE: -- let me rephrase it. 4 Have you ever heard of the term called 5 "tunnel vision"? 6 MR. LARRY CHARMLEY: Yes. 7 MS. MARA GREENE: Okay. And what tunnel 8 vision essentially is is when an investigator focuses on 9 one (1) possibility and sort of ignores or doesn't 10 consider the other alternatives -- 11 MR. LARRY CHARMLEY: Yes. 12 MS. MARA GREENE: -- correct? Okay. 13 And there's often a risk for that 14 occurring when an investigator is being guided in what to 15 investigate, correct? 16 MR. LARRY CHARMLEY: Yes, I can see you 17 have to be careful that you don't get tunnel vision. 18 MR. MARA GREENE: Okay. And so it -- the 19 -- while it's very helpful for the pathologist to guide 20 the investigators -- and I'm not disputing that that is 21 helpful -- it does also raise the concern or the 22 potential for tunnel vision, is that fair? 23 MR. LARRY CHARMLEY: Yeah, and I'm just - 24 - I just don't want to say that I -- I never thought Dr. 25 Smith guided us or anything like that. He provided an

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1 opinion for this -- 2 MR. MARA GREENE: I'm not -- I'm not 3 relating it specifically to -- 4 MR. LARRY CHARMLEY: Okay. 5 MR. MARA GREENE: -- Dr. Smith in this 6 case. I'm talking about your recommendation, which is 7 that the pathologists give information to the 8 investigators, right? 9 MR. LARRY CHARMLEY: Right. 10 MR. MARA GREENE: And that information 11 should be used by the investigators to guide their 12 investigation? 13 MR. LARRY CHARMLEY: Yes. 14 MR. MARA GREENE: And would you agree 15 that that -- while that is definitely helpful, it does 16 have a potential harm in that it would guide them in only 17 one (1) direction? 18 MR. LARRY CHARMLEY: I don't know. If -- 19 I think if the forensic pathologist is just relaying what 20 has been observed, I mean, there shouldn't really be a 21 direction. It should be a summary of the injuries and 22 the cause of death, and then we can look at everything 23 there, much like we should be providing him everything. 24 And he can -- he can do with it what he 25 likes and -- and perceive what he likes in there. But it

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1 certainly -- I -- in the sense of him -- the pathologist 2 providing us something, I'm not suggesting that there's a 3 guidance to go a specific direction or anything. It's 4 more just them properly documenting rather than us 5 standing and making notes saying there was three (3) 6 scratches on the elbow. 7 And -- and he can make a more -- relate 8 that to what it -- the way it should be termed, and the 9 way it they like it worded. And that's something more 10 that we could rely on and the Crown attorney could rely 11 on; so not necessarily as guidance, but just proper 12 documentation of what did occur during the autopsy. 13 And certainly, if they can -- if they can 14 scientifically, in some way, provide guidance that 15 specifically, this is what caused this or it happened 16 specifically within this time frame then absolutely I 17 would hope that would be provided whenever it could be. 18 MR. MARA GREENE: I'm not disputing the 19 value in the pathologist relating his or her findings to 20 the officer. I think that's a key component of the 21 investigative process. 22 What I'm concerned about is that there is 23 a -- there is a secondary consequence of it that I'm not 24 suggesting can't be resolved in some fashion, but that, 25 for example, you have a pathologist advising the

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1 investigating officer that there are a series of injuries 2 that are likely consistent with child abuse. 3 That that may then lead the investigators 4 to investigate the parents as being potential persons who 5 caused the death of the child, correct? 6 MR. LARRY CHARMLEY: Yes, yes. 7 MR. MARA GREENE: And wouldn't 8 necessarily lead the investigation to consider other 9 persons or other causes of death, correct, means of 10 death? 11 MR. LARRY CHARMLEY: There -- there is 12 potential for that. 13 MR. MARA GREENE: Okay. And so what I 14 would want to focus on is, sort of, how does the 15 investigating officer ensure that they're -- that they're 16 not just invest -- investigating the issues that arose 17 from the pathologist, and that they're keeping their mind 18 open to all other alternatives? 19 MR. LARRY CHARMLEY: From -- from the 20 investigator's side, we -- we would have in-house 21 conferences within the police service where you would 22 have other people with similar experience -- inspectors, 23 supervisors, and that -- and you -- you'd sit at a table 24 and you basically have your -- your case conference 25 within house.

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1 And you just kind of kick ideas around, 2 and what if ideas, and you go from there, and you make 3 your list as far as things that you need to do and what 4 directions you need to follow. 5 And I would assume in -- in today's 6 policing -- maybe not in years past, but I would hope 7 that in most of those in-house case conferences, it's -- 8 there's always that thought in mind; let's not get tunnel 9 vision. Let's go after every piece of evidence that we 10 have and see what it says at the end of the day. 11 MR. MARA GREENE: So now, you're talking 12 about an in-house case conference. I just want to sort 13 of -- is there a protocol place where in the 14 investigative process, early on, there is this in-house 15 conference where alternative investigations are 16 considered? 17 MR. LARRY CHARMLEY: I don't know if it's 18 written down in a protocol. I think it's part of case 19 management that's being taught throughout the province, 20 and I think it's reasonable certainly on midsize and 21 larger services -- well, even smaller services -- that 22 I'm not aware of anybody that doesn't sit down in the 23 early stages to discuss what evidence has come forward. 24 Because initially everybody's kind of 25 doing their own thing and you have to bring that

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1 together, so the primary investigators know everything 2 that's going on. 3 MS. MARA GREENE: But this -- and this 4 meeting of sorts is helpful to ensure that tunnel vision 5 isn't occurring -- 6 MR. LARRY CHARMLEY: That's right, yes. 7 MS. MARA GREENE: Great, thank you very 8 much. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Greene. Ms. Fraser...? 11 12 CROSS-EXAMINATION BY MS. SUZAN FRASER: 13 MS. SUZAN FRASER: Thank you 14 Commissioner. Officers, my name is Sue Fraser, and I'm 15 here on behalf of a children's rights organization called 16 Defence for Children. And, Officer Kirkland, I just have 17 a couple questions that I need to -- your assistance 18 with. 19 Am I right that when you attended with 20 Jenna's body in Toronto, that you were going in your 21 capacity as a forensic IDENT officer with a facilitating 22 homicide investigation? Is that the reason that you went 23 with the body? 24 MR. SCOTT KIRKLAND: Yes, that's right. 25 MS. SUZAN FRASER: All right. And did

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1 you know when you were going that you were going to the 2 Ontario Forensic Pediatric Pathology Unit? Did you know 3 that it, sort of, had that title, and you were going to 4 Dr. Smith in his capacity as Director of that Unit? 5 MR. SCOTT KIRKLAND: I don't think I was 6 aware of the title. I knew I was going to the Sick 7 Children's Hospital, and -- 8 MS. SUZAN FRASER: All right. 9 MR. SCOTT KIRKLAND: -- at that time I 10 knew which floor. I've forgotten now. 11 MS. SUZAN FRASER: All right. And did 12 you have the knowledge as to who Dr. Smith was and that 13 he was considered one (1) of the leading pediatric 14 forensic pathologists? 15 MR. SCOTT KIRKLAND: Yes, I'd already had 16 photographed post-mortems that he conducted -- 17 MS. SUZAN FRASER: All right. 18 MR. SCOTT KIRKLAND: -- at -- at that 19 site. 20 MS. SUZAN FRASER: All right. And you 21 took your own photographs there, and you left with your 22 own photographs, as I understand it. But you left with 23 no other record of the exhibits that were taken or the 24 evidence that was taken at the post-mortem, is that -- is 25 that fair?

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1 MR. SCOTT KIRKLAND: I didn't have a 2 list, nor was I aware of -- of exactly what fluids and 3 swabs and -- and whatever evidence that Dr. Smith took, 4 or -- or he directed his assistants to take. 5 I, in the normal course of events, I 6 wouldn't have. That's -- that's an internal thing with - 7 - with them. And any follow up as far as submitting 8 evidence would be done by them. 9 MS. SUZAN FRASER: And -- and when you 10 say, "them", you've given us your evidence as to who else 11 was in attendance, and I take it that there was no other 12 officer who was there in attendance at the autopsy? 13 MR. SCOTT KIRKLAND: No, I was the only 14 one. 15 MS. SUZAN FRASER: All right. So -- and 16 was there any protocol at the time that guided you as to 17 what to do -- or did -- did they tell you that that was 18 the practice and procedure? 19 What -- I'm just interested -- maybe I'll 20 put it another way is, had you done -- attended at other 21 autopsies in that same capacity? 22 MR. SCOTT KIRKLAND: Many, yes. 23 MS. SUZAN FRASER: All right. And you've 24 given your evidence, I think, that the practice would be 25 different, that you would -- you would be responsible for

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1 the recording of the exhibits, is that fair? 2 MR. SCOTT KIRKLAND: No. No, I -- I 3 would never be responsible for recording the exhibits 4 that were submitted by the pathologist or his -- his 5 office. 6 MS. SUZAN FRASER: All right. 7 MR. SCOTT KIRKLAND: The only exhibits 8 that I'd be responsible for is ones that I took with me, 9 and that would generally be physical evidence such as 10 clothing or anything found on the body during the post- 11 mortem. It wouldn't be submitted at the time. 12 MS. SUZAN FRASER: All right. So in your 13 experience in both with Dr. Smith's autopsies, and the 14 other autopsies that you have attended, but the 15 pathologist keeps their own record of the exhibits taken? 16 MR. SCOTT KIRKLAND: Yes. 17 MS. SUZAN FRASER: All right. And in the 18 non-Dr. Smith autopsies, how have the pathologists been 19 assisted in terms of recording what's taken through their 20 own office or through their own assistant? 21 MR. SCOTT KIRKLAND: They've done it 22 internally. It is -- it's never -- it's never been 23 something that I was involved with in any way at all. 24 It's just standard practice, I assume, for pathologists 25 to make a determination of what they're going to take and

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1 what they're going to submit to the Centre as far as 2 toxicology or whatever other examinations they want made. 3 MS. SUZAN FRASER: All right. 4 MR. SCOTT KIRKLAND: And those are done 5 by them. 6 MS. SUZAN FRASER: All right. And would 7 there be any benefit to you in receiving knowledge of, or 8 a copy of the list of exhibits -- samples seized by the 9 pathologist? 10 MR. SCOTT KIRKLAND: Not -- not a benefit 11 for me in -- in my duties, but it would definitely be a 12 benefit for the investigating officer. 13 MS. SUZAN FRASER: I see. And do you see 14 any reason, based on your experience in attending 15 autopsies, that you couldn't leave the autopsy suite or 16 the autopsy room with a copy of that list once you head 17 back to your own jurisdiction? 18 MR. SCOTT KIRKLAND: If it was prepared 19 by then, but I -- I don't even know when they -- they've 20 done it. I assume that whatever they do is -- is maybe 21 later typed up and, it may even be a day later or 22 something when those submissions are actually made. 23 I -- I have no knowledge of that. 24 MS. SUZAN FRASER: All right. Thank you, 25 sir. Thank you, Mr. Commissioner.

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1 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 2 Fraser. 3 Ms. Silver...? 4 5 CROSS-EXAMINATION BY MS. CAROLYN SILVER: 6 MS. CAROLYN SILVER: Good afternoon. I'm 7 Carolyn Silver and I represent the College of Physicians 8 and Surgeons. I just have a few questions, I think 9 mostly for you, Sergeant Charmley. 10 The first question is about the notes from 11 the -- the medical record or medical notes from the 12 Peterborough Hospital that were taken when Jenna came in. 13 MR. LARRY CHARMLEY: Yes. 14 MS. CAROLYN SILVER: And my first 15 question is, when did the police receive those notes? 16 MR. LARRY CHARMLEY: In my -- in Tab 5, 17 where it lists the search warrants that were conducted on 18 page 18, we first received the civ -- Civic Hospital 19 records on the 7th of February, 1997 after we executed a 20 search warrant at the hospital to get them. 21 22 (BRIEF PAUSE) 23 24 MS. CAROLYN SILVER: And looking at your 25 notes from the investigation, is it fair to say that

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1 these notes from the Peterborough Hospital didn't form an 2 important part of the evidence that the police relied on 3 in conducting its investigation? 4 MR. LARRY CHARMLEY: Sorry, they did or 5 they didn't? 6 MS. CAROLYN SILVER: They did not, and 7 I'm talking specifically about the portion of the notes 8 that refers to a curly hair being found and to possible 9 trauma to the genital area. 10 MR. LARRY CHARMLEY: No, that didn't end 11 up forming a huge part of the initial investigation. It 12 was thought that the sexual abuse was a non issue. 13 MS. CAROLYN SILVER: And when you say "it 14 was thought that the sexual abuse was a non issue", is it 15 fair to say that it doesn't seem that anyone specifically 16 turned their mind to these notes from the Peterborough 17 Hospital, is that fair? 18 MR. LARRY CHARMLEY: Yeah, I -- I believe 19 the initial investigators, based on what they had been 20 told through Dr. Smith's and Dr. Thompson in 21 conversations there was, a sexual abuse exam was done at 22 the post-mortem exam, and the opinion was there was no 23 sexual assault. 24 MS. CAROLYN SILVER: So what I'm just 25 suggesting to you is it seems that no one referred back

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1 to these notes and really took them into account. 2 They relied on what Dr. Smith had told 3 them, fair enough? 4 MR. LARRY CHARMLEY: I think that's fair, 5 yes. 6 MS. CAROLYN SILVER: And when I say "no 7 one", I'm talking about the police investigation. 8 MR. LARRY CHARMLEY: Yes. 9 MS. CAROLYN SILVER: Okay. 10 11 (BRIEF PAUSE) 12 13 MS. CAROLYN SILVER: And just to go back 14 to your evidence about finding that the envelope that you 15 had found, or Dr. Smith eventually turned over, which 16 noted that there was a hair inside, you said you referred 17 it against the log and you saw that it had been one (1) 18 of the things that was numbered sequentially, correct? 19 MR. LARRY CHARMLEY: Yes. 20 MS. CAROLYN SILVER: And from your 21 investigation, it appeared that no one had noticed that 22 this item was missing, correct -- no one at the police? 23 MR. LARRY CHARMLEY: Yes, and I'm not 24 sure if it was a -- I'd have to look at my notes back at 25 the station. I'm not sure if it was a sequential seal in

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1 between or if it was one (1) right at the very end, in 2 which case, it might not be noted. 3 MS. CAROLYN SILVER: Okay. And is it 4 usual for the investigating officers to do that to 5 compare the actual exhibits against the log to make sure 6 that they've all been reviewed? 7 Is that something that should be done 8 usually? 9 MR. LARRY CHARMLEY: Probably -- well, 10 it's maybe something that should be done if going back 11 over several years, I don't know that as much attention 12 was maybe given to homicides as there is today. 13 I think today there's probably not much 14 that's not looked at. 15 MS. CAROLYN SILVER: So I guess there's 16 two (2) answers. One (1) that you're not sure whether it 17 was or was not done, fair enough? 18 MR. LARRY CHARMLEY: I'm not sure if it 19 was or wasn't done. 20 MS. CAROLYN SILVER: And you're not sure 21 whether it was the practice at the time to conduct that 22 kind of comparison between the actual exhibits and the 23 log, correct? 24 MR. LARRY CHARMLEY: I would be 25 surprised, back then, if the initial investigators

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1 actually sat down and compared seal numbers. 2 MS. CAROLYN SILVER: Okay. So even if it 3 was in the middle of the sequence, it's very possible 4 that that kind of comparison wasn't done? 5 MR. LARRY CHARMLEY: True. 6 MS. CAROLYN SILVER: Okay. 7 MR. LARRY CHARMLEY: I mean, if I hadn't 8 had been directed to look for the hair and the issues 9 that arose with it, I might not have realized that 10 either. 11 MS. CAROLYN SILVER: Okay. And I want to 12 talk next about Dr. -- or Drs. Choi and Perrin who were 13 with Dr. Smith during the autopsy of Jenna. 14 MR. LARRY CHARMLEY: Yes. 15 MS. CAROLYN SILVER: And I think Mr. 16 Sandler took you through your notes, and you said that 17 you talked to Dr. Smith about whether Drs. Choi and 18 Perrin would have notes of the autopsy, correct? 19 MR. LARRY CHARMLEY: Yes, I did. 20 MS. CAROLYN SILVER: And Dr. Smith told 21 you that they wouldn't have kept notes, is that right? 22 MR. LARRY CHARMLEY: That's correct. 23 MS. CAROLYN SILVER: And you didn't talk 24 to Doctors Choi and Perrin directly, is that right? 25 MR. LARRY CHARMLEY: No, I took Dr.

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1 Smith's word for it. 2 MS. CAROLYN SILVER: And I'm suggesting 3 to you that you took Dr. Smith's word for it despite the 4 fact that you already had concerns about Dr. Smith's 5 reliability and truthfulness, is that fair? 6 MR. LARRY CHARMLEY: Yes, it is. 7 MR. BYRON WILLIAMS: And in retrospects, 8 do you agree, that, perhaps, you shouldn't have taken Dr. 9 Smith's word for it in those circumstances? 10 MR. LARRY CHARMLEY: Yeah, it was kind of 11 awkward dealing with him 'cause at that stage, I mean, 12 nobody had really proven anything against Dr. Smith. I 13 still don't know what -- what has happened with regards 14 to that but, certainly a man of his stature and -- I 15 mean, in hindsight, should I have -- based on what I 16 know, disregarded what he said and still went and got it 17 anyways? Probably. 18 MS. CAROLYN SILVER: Okay. But you did 19 take his word for it and didn't talk to the two (2) 20 doctors directly? 21 MR. LARRY CHARMLEY: I didn't, that's 22 correct. 23 MS. CAROLYN SILVER: Even though you were 24 starting to have doubts about his truthfulness? 25 MR. LARRY CHARMLEY: Yes.

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1 MS. CAROLYN SILVER: Something perhaps 2 you would have done differently if you could do it over? 3 MR. LARRY CHARMLEY: Yes, I'd -- would go 4 to the extent of talking to them anyways. 5 6 (BRIEF PAUSE 7 8 MS. CAROLYN SILVER: Next I want to talk 9 about your meeting with Drs. Porter and Tucker at the 10 OCCO. 11 MR. LARRY CHARMLEY: Yes. 12 MS. CAROLYN SILVER: And that was on 13 September 18th, 2001, it appears from your summary? And 14 that's -- 15 MR. LARRY CHARMLEY: Yes. 16 MR. BYRON WILLIAMS: Okay. And you made 17 a very detailed list of questions, which Mr. Sandler took 18 you to, that you wanted the OCCO to answer for you, 19 correct? 20 MR. LARRY CHARMLEY: Yes. 21 MS. CAROLYN SILVER: And you said that 22 you received from them verbal responses to many of those 23 questions when you met with them, correct? 24 MR. LARRY CHARMLEY: Yes, I did. 25 MS. CAROLYN SILVER: But you told them

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1 that you wanted a written response so as to avoid any 2 misunderstanding and to make sure that you got the facts 3 right, correct? 4 MR. LARRY CHARMLEY: Yes. 5 MS. CAROLYN SILVER: And did you ever 6 receive that written response to those detailed 7 questions? 8 MR. LARRY CHARMLEY: Not to all of them, 9 no. And I think what I would have really liked, and I 10 again, I don't know how feasible it is -- maybe some of 11 those questions I asked are -- are not reasonable, I 12 don't know -- not having a medical background -- but I 13 would have liked a reply specifically answering each one 14 of those, where it listed my question and then listed the 15 answer to it. 16 And I think what I -- I did end up getting 17 and -- I didn't get all the questions answered, but it 18 was either through verbal communication at case 19 conferences or it's in some of the reports, like, through 20 Dr. Pollanen. Some of those things would be covered in 21 his report, but not specifically in the lay terms that I 22 would have liked it in answer to my questions. 23 MS. CAROLYN SILVER: And do you know why 24 the OCCO did not provide you with a list -- with answers 25 to those detailed twenty-five (25) questions that you

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1 posed at them? 2 MR. LARRY CHARMLEY: No, I don't 3 specifically know why. 4 MS. CAROLYN SILVER: And did you think 5 obtaining the answers in writing was important to your 6 investigation? 7 MR. LARRY CHARMLEY: Yes, I did. 8 MS. CAROLYN SILVER: But you continued 9 and completed the investigation even though you didn't 10 get the written answers -- 11 MR. LARRY CHARMLEY: Yes. 12 MS. CAROLYN SILVER: -- fair enough? 13 MR. LARRY CHARMLEY: Yes. 14 15 (BRIEF PAUSE) 16 17 MS. CAROLYN SILVER: I just want to ask 18 you one (1) -- a couple last questions focussing on your 19 dealings with the College of Physicians and Surgeons. 20 MR. LARRY CHARMLEY: Yes. 21 MS. CAROLYN SILVER: You understood that 22 while you were conducting your investigation for the 23 police, there was an investigation ongoing at the College 24 into this matter of Dr. Smith's dealing with the Jenna 25 case?

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1 MR. LARRY CHARMLEY: Yes. 2 MS. CAROLYN SILVER: And the College 3 contacted you on different occasions asking you questions 4 and asking you for information, correct? 5 MR. LARRY CHARMLEY: Yes, they did. 6 MS. CAROLYN SILVER: And I think we 7 looked at one (1) document where they wrote you a letter 8 -- the investigator wrote you a letter asking for certain 9 information, that you provided, correct? 10 MR. LARRY CHARMLEY: Yes. 11 MS. CAROLYN SILVER: And I just want to 12 turn you to a memo which I understand has now been 13 provided to you. It's a memo of January 10th, 2002 -- 14 MR. LARRY CHARMLEY: Yes. 15 MS. CAROLYN SILVER: -- from Elizabeth 16 Doris (phonetic), College Investigator, to you. 17 MR. LARRY CHARMLEY: Yes. 18 MS. CAROLYN SILVER: And it details a 19 telephone conversation between you and Ms. Doris? 20 MR. LARRY CHARMLEY: That's correct. 21 MS. CAROLYN SILVER: And do you -- do you 22 have an independent recollection of this telephone 23 conversation? 24 MR. LARRY CHARMLEY: I compared my notes. 25 I do have it in my -- my notes that I did have a

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1 conversation with her. As far as an independent 2 recollection, I know I spoke with her on more than one 3 (1) occasion on the phone. 4 MS. CAROLYN SILVER: Right. I take it 5 you don't have an independent recollection of this 6 specific conversation on this day, fair enough? 7 MR. LARRY CHARMLEY: No, I don't. 8 MS. CAROLYN SILVER: Okay. And in the 9 memo, Ms. Doris states that you indicated a number of 10 things to her in discussing whether a sexual abuse 11 examination was conducted on Jenna, correct? 12 MR. LARRY CHARMLEY: That's correct. 13 MS. CAROLYN SILVER: And in the memo she 14 states that it was your -- that you told her that it was 15 your understanding that Dr. Smith did not perform a 16 sexual examination on Jenna. 17 Do you remember telling her that or would 18 you accept that you told her that? 19 MR. LARRY CHARMLEY: I don't remember 20 that, but I would accept that I did tell her that. 21 MS. CAROLYN SILVER: Okay. And that you 22 still had concerns regarding this -- 23 MR. LARRY CHARMLEY: Yes. 24 MS. CAROLYN SILVER: -- as does Ms. 25 Waudby?

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1 MR. LARRY CHARMLEY: Yes. 2 MS. CAROLYN SILVER: You accept that. 3 And that you told her that you recall Dr. 4 Smith obtained a second opinion from an expert in the 5 sexual abuse field who agreed with him that no sexual 6 intercourse had taken place. 7 You agree with that? 8 MR. LARRY CHARMLEY: I -- I agree I would 9 have said that? 10 MS. CAROLYN SILVER: And that you 11 recalled the hearing when Dr. Smith testified that he 12 could not rule out some type of sexual contact, i.e., 13 fondling or rubbing of the genitals? 14 MR. LARRY CHARMLEY: That's correct. 15 MS. CAROLYN SILVER: And last, that to 16 the best of your knowledge -- you told Ms. Doris that to 17 the best of your knowledge, no scrapings or swabs or hair 18 samples were taken. 19 Do you agree with that? 20 MR. LARRY CHARMLEY: I would agree with 21 that. When I see the hair samples, I don't -- I don't 22 know if I maybe just didn't want to tell her with regards 23 to the hair at the time if I knew about it. That I was 24 concerned that that would be evidence I didn't want known 25 at that time or not. But I think that was already a

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1 known issue then in the media. 2 MS. CAROLYN SILVER: Well, let -- to be 3 fair, I put it to you, Sergeant, that you did know about 4 the hair sample. Because in November 2001, you went to 5 Dr. Smith and obtained the envelope with the hair 6 sample -- 7 MR. LARRY CHARMLEY: Yeah -- 8 MS. CAROLYN SILVER: -- correct? 9 MR. LARRY CHARMLEY: -- well, certainly I 10 knew about it -- 11 MS. CAROLYN SILVER: Right. 12 MR. LARRY CHARMLEY: -- I'm just not sure 13 if -- if, in fact, I did know about it and if I told her 14 that no hair samples were taken. Whether I was 15 misleading her about that specific hair or what I was 16 talking about there. 17 MS. CAROLYN SILVER: Okay, but we've gone 18 over and you agree that on November 15th, 2001, you met 19 with Dr. Smith and that's when you obtained the envelope 20 that had written on the outside "Hair from pubic area"? 21 MR. LARRY CHARMLEY: Yes. 22 MS. CAROLYN SILVER: Okay -- 23 MR. LARRY CHARMLEY: Yes. 24 MS. CAROLYN SILVER: -- so that was in 25 November.

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1 And you did some investigation subsequent 2 to that and you knew in November and December of 2001 3 that Dr. Smith had obtained this hair from Jenna at the 4 autopsy, correct? 5 MR. LARRY CHARMLEY: Yes. 6 MS. CAROLYN SILVER: Okay. So what I'm 7 suggesting to you is when you talked to Ms. Doris on 8 January 10th, 2002, you told her for whatever reasons, 9 perhaps -- for whatever reasons the police may have had, 10 you told her that to the best of your knowledge no 11 scrapings or swabs or hair samples were taken. 12 Is that fair? 13 MR. LARRY CHARMLEY: That's fair. 14 MS. CAROLYN SILVER: Okay. Despite the 15 fact that you knew that Dr. Smith had taken a hair. 16 Fair enough? 17 MR. LARRY CHARMLEY: I would have known 18 then, yes. 19 MS. CAROLYN SILVER: Okay. 20 21 (BRIEF PAUSE) 22 23 MS. CAROLYN SILVER: And you're not sure 24 why you would have said that to Ms. Doris, but it's 25 possible that you didn't want her to know what you knew

194
  1  as part of the police investigation, is that correct?
  2                 MR. LARRY CHARMLEY:   Yes, there were --
  3  yeah, there were several issues that we didn't want to
  4  become public and, again, I'm not sure if it was already
  5  public at that time; obviously, maybe it wasn't, and
  6  maybe that's the reason, if I -- if I replied in that
  7  way, maybe that's the reason why I didn't tell her that
  8  we had a hair.
  9                 MS. CAROLYN SILVER:   Not only didn't you
 10  tell her there wasn't a hair, but according to your memo,
 11  you told her, to the best of your knowledge, no hair
 12  sample was taken, fair enough?
 13                 MR. LARRY CHARMLEY:   Correct.
 14                 MS. CAROLYN SILVER:   Okay.  Okay. 
 15                 MR. MARK SANDLER:   Sorry, in the last
 16  comment, this is not his memorandum.
 17                 MS. CAROLYN SILVER:   No, I know, I'm just
 18  -- I -- 
 19                 MR. MARK SANDLER:   Well, you had said,
 20  according to his memorandum.
 21  
 22  CONTINUED BY MS. CAROLYN SILVER: 
 23                 MS. CAROLYN SILVER:   I -- I apologise. 
 24  Sorry, according to the -- the College's memorandum.
 25                 MR. LARRY CHARMLEY:   That's correct, yes.

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1 MS. CAROLYN SILVER: Okay, I just wanted 2 to know if you agreed with that. Okay. Those are my 3 questions, thank you. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 5 Silver. 6 Ms. Ritacca...? 7 8 CROSS-EXAMINATION BY MS. LUISA RITACCA: 9 MS. LUISA RITACCA: Good afternoon. My 10 name is Luisa Ritacca, and I'm one (1) of the lawyers for 11 the Office of the Chief Coroner. And, Sergeant Charmley, 12 I just have one (1) line of questioning for you, and it 13 follows up on something that you said just a moment ago. 14 If I could ask you to turn up the overview 15 report, which I believe is at Tab 1 of your documents and 16 that's PFP144684. 17 18 (BRIEF PAUSE) 19 20 MS. LUISA RITACCA: If we could go to 21 page 74. And, Sergeant Charmley, there's reference at 22 paragraph 131 to a meeting that took place on September 23 18th, 2001 with you and Sergeant Tucker, Dr. Porter, and 24 Dr. Clark. 25 MR. LARRY CHARMLEY: Yes.

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1 MS. LUISA RITACCA: And I understand 2 that's the meeting in which you provided Dr. Porter with 3 the list of questions that we see in your case history, 4 is that right? 5 MR. LARRY CHARMLEY: Yes, there would 6 have been a brief provided to her that also contained 7 that list of questions. 8 MS. LUISA RITACCA: Yes. And if we turn 9 the page over to page 75, there is reference to a letter 10 written to you -- from you by -- to Dr. Porter on October 11 22nd, 2001. 12 Is that the next time that you 13 communicated with Dr. Porter about this case, from 14 September 18th, 2001? 15 MR. LARRY CHARMLEY: I'm sorry, I -- I 16 got lost where I was to be looking there for -- 17 MS. LUISA RITACCA: Oh, I'm sorry, it's 18 paragraph 134 on page 75. 19 MR. LARRY CHARMLEY: Oh, all right. 20 MS. LUISA RITACCA: Would that be the 21 next communication you had with Dr. Porter about the 22 case? 23 MR. LARRY CHARMLEY: I believe so because 24 I believe there was some indication about trying to get 25 the actual notes of the doctors -- rough notes and that.

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1 MS. LUISA RITACCA: All right, and -- and 2 in fairness, the excerpt that we see here in the overview 3 report of your letter says, 4 "further to our meeting of September 5 18th, 2001." 6 So I took that to mean that was the next-- 7 MR. LARRY CHARMLEY: Yes. 8 MS. LUISA RITACCA: -- time that you 9 communicated with her about the case. 10 MR. LARRY CHARMLEY: I believe so. 11 MS. LUISA RITACCA: And as I read the 12 excerpt, and please feel free to read it to yourself, I 13 don't -- I don't see here that you've reminded her or 14 asked her for the answers to the twenty-one (21) 15 questions. 16 Is it fair that you didn't do that in this 17 letter? 18 MR. LARRY CHARMLEY: No, I wouldn't have. 19 MS. LUISA RITACCA: Okay. Did -- did you 20 do it subsequently? 21 MR. LARRY CHARMLEY: I think it -- I 22 brought it up again. It's -- this is one (1) of those 23 things where I presented it, and I thought it would be 24 taken care of. And I knew it was still in the medical 25 brief, and I was always kind of waiting, and hoping, and

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1 it's -- 2 MS. LUISA RITACCA: And -- 3 MR. LARRY CHARMLEY: I guess -- I guess I 4 felt I was constantly asking the Coroner's Office to do 5 stuff for me, and I -- I just was kind of hoping that 6 that would be one (1) of the things that would eventually 7 come out. 8 MS. LUISA RITACCA: And is it fair to say 9 that the Coroner's Office did cooperate with many of your 10 requests? 11 MR. LARRY CHARMLEY: Oh, absolutely. 12 MS. LUISA RITACCA: Including assisting 13 in finding out where the -- the hair was, is that fair? 14 MR. LARRY CHARMLEY: Yes. 15 MS. LUISA RITACCA: Okay. And including 16 canvassing other experts that hadn't been canvassed 17 before in the case? 18 MR. LARRY CHARMLEY: That's correct. 19 MS. LUISA RITACCA: Thank you, those are 20 all my questions. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 22 Ritacca. 23 Mr. Sandler...? 24 25 RE-DIRECT EXAMINATION BY MR. MARK SANDLER:

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1 MR. MARK SANDLER: I just have some brief 2 questions on -- on three (3) areas that were raised in 3 cross-examination. Sergeant Charmley, you were asked 4 about a memorandum to the file from the College of 5 Physicians and Surgeons dated January 10th, 2002. 6 I should say, Commissioner, we just 7 received that today, so we don't have a PFP number -- 8 COMMISSIONER STEPHEN GOUDGE: I gathered 9 that. 10 MR. MARK SANDLER: -- for it. So perhaps 11 we'll just put it up on the screen. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: And just so that we're 17 -- we get your best recollection of what you actually 18 recall in relation to this conversation, I am going to 19 take you to your notes of the same conversation dated 20 January the 10th of 2002. 21 They're found at Tab 2 of the materials. 22 We can keep this current document on the screen, but it's 23 Tab 2 of your materials at page 48. 24 MR. LARRY CHARMLEY: That's correct. I 25 have it.

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1 MR. MARK SANDLER: Do you have that? 2 MR. LARRY CHARMLEY: Yes, I do. 3 MR. MARK SANDLER: So just looking at 4 your notes, they seem to reflect: 5 "Return call to Liz Doris of College of 6 Physicians and Surgeons Ontario. She 7 wanted to know if Dr. Smith did a 8 sexual assault examination on Jenna. I 9 confirmed that he had not done a sex 10 kit, i.e., swabs, et cetera, to my 11 knowledge. However, he did have an 12 expert in that field give him a second 13 opinion and is satisfied there was not 14 sexual intercourse." 15 So stopping there for a moment. The 16 memorandum from the investigator has indicated it's his 17 understanding Dr. Smith did not perform a sexual 18 examination on Jenna. He still has some concerns 19 regarding this as does Ms. Waudby. 20 And your notes say: 21 "that he had not done a sex kit, i.e., 22 swabs and et cetera to my knowledge." 23 Can you assist us as to what, with the 24 benefit of your notes, you likely told the investigator 25 on that topic?

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1 MR. LARRY CHARMLEY: Well, to my -- to my 2 knowledge at that time, and still to today, they're to 3 perform a sexual assault examination. There's a sex kit 4 with a number of steps that you take within that kit, and 5 part of that is taking swabs, and perhaps, pulling hairs 6 or seizing anything that may have been deposited there. 7 And to my knowledge, there were no samples 8 of that other than the hair that was -- had been 9 recovered. 10 MR. MARK SANDLER: All right. So that -- 11 so that in this context, leaving aside the -- the factual 12 issue as to whether or not -- or to what extent Dr. Huyer 13 participated with Dr. Smith in examining the genitalia of 14 Jenna and whether that would be characterized as a sexual 15 assault examination, the reference you're making here is 16 to the failure to perform the traditional sexual 17 examination involving the sex kit; is that right? 18 MR. LARRY CHARMLEY: That's right. 19 MR. MARK SANDLER: And then going on in 20 your notes of January the 10th of 2002, you said: 21 "He did not have an expert in that -- 22 to my knowledge however, he did have an 23 expert in that field give him a second 24 opinion, and is satisfied there was not 25 sexual intercourse per preliminary

202

1 transcript. He could not eliminate 2 possibility that she was fondled. 3 Advised her I had some concerns that 4 Jenna was not swabbed. Advised I have 5 not determined who doctor is that gave 6 second opinion, or what that doctor's 7 opinion was based on, but intend to 8 determine at later date." 9 So I see there's a reference to not being 10 swabbed. But the reference in the investigator's note of 11 January 10th, 2002, is: 12 "to the best of my knowledge, no 13 scraping or swabs or hair samples was 14 taken." 15 Looking at your notes and looking at the 16 memorandum from the investigator, does that provide you 17 any assistance as to the extent to which you made 18 reference to hair samples, or did not make reference to 19 hair samples, or can you say? 20 MR. LARRY CHARMLEY: No, I still -- I 21 still don't know -- I don't know if I specifically said 22 hair samples, but I -- I mean, I don't -- if she says 23 that's what I said then perhaps I did. 24 MR. MARK SANDLER: Okay. 25 MR. LARRY CHARMLEY: But I was --

203

1 MR. MARK SANDLER: And that -- that's the 2 best you can do on that? 3 MR. LARRY CHARMLEY: That's the best I 4 can do. 5 MR. MARK SANDLER: Fair enough. Second 6 of all, in cross-examination, you were asked about this - 7 - this information that you later learned, about the 8 sequencing of the item that Dr. Smith had taken, sealed, 9 a number was placed on it, and it was identified as a 10 hair from the pubic area. 11 What I want to understand is this: Did 12 you acquire some understanding of how the list of 13 sequenced numbers made its way into the police files? 14 Since -- if Constable Kirkland's evidence is accurate, 15 the police had no involvement in that component of the 16 collection of exhibits from the body. 17 Do you understand my question? 18 MR. LARRY CHARMLEY: Yes, I do, yeah. 19 MR. MARK SANDLER: Can you help us out at 20 all on that? 21 MR. LARRY CHARMLEY: I believe in the 22 file there -- there is -- the CFS submission forms, 23 there's about -- I think there's four (4) copies to it. 24 And I believe in the file, there is one (1) of those 25 copies or I got it from the response from the Centre of

204

1 Forensic Sciences -- 2 MR. MARK SANDLER: I see. 3 MR. LARRY CHARMLEY: -- which indicates 4 what submissions were submitted to them including the 5 seal numbers. And I compared it to those submissions. 6 But I have one (1) or the other in the file that I went 7 back to compare to. 8 MR. MARK SANDLER: I'd be grateful if -- 9 if -- and there's no sense of urgency over it, but if -- 10 if you could obtain, from the file, the material that 11 enabled you to conclude what the seqencing was and -- and 12 the missing number and provide that documentation to the 13 Commission. 14 MR. LARRY CHARMLEY: Yes. 15 MR. MARK SANDLER: That's be very 16 helpful. 17 MR. LARRY CHARMLEY: Okay. 18 MR. MARK SANDLER: And -- and the third 19 area that I wanted to ask you and Constable Kirkland 20 about was this, that Mr. Wardle was asking you about the 21 opinion formed by Dr. Smith and the extent to which it 22 contributed to the formation of reasonable and probable 23 grounds. 24 And -- and Mr. Wardle's cross-examination 25 had to do with the fact that -- that Dr. Smith formed an

205

1 opinion -- and I'll say at some point that -- that the 2 fatal blows could have been administered in a period that 3 extended some time, and he made reference to the twenty- 4 four (24) hours, and you remember that cross-examination? 5 MR. LARRY CHARMLEY: Yes. 6 MR. MARK SANDLER: I just wanted to 7 clarify the fact that Mr. Wardle also made reference to 8 that opinion being formed by Dr. Smith from the earliest 9 moment or at a very early time. And as I read the 10 materials, and -- and I'll take you to the overview 11 report at Tab 1. 12 I'll take you both to the overview report 13 at Tab 1, if I may, PFP144684/1 at page 16. Mr. Wardle 14 made reference to the content of -- of what was 15 communicated by Detective Constable Lemay in paragraph 40 16 of the overview report that does indeed speak in terms of 17 the time frames that -- that Mr. Wardle asked you about. 18 But if you look right at the top of the 19 page, the quoted portion at the top of the page 20 represents Constable Kirkland's notes of the attendance 21 at the autopsy when Dr. Smith expresses his very earliest 22 opinion. And -- and what it says is: 23 "Dr. Smith concludes the victim 24 suffered a blow with a blunt object, 25 could be fist or foot, causing a

206

1 rupture in the duodenal pancreas and 2 liver. There was no evidence that this 3 injury had begun to heal, occurred 4 within a few hours prior to death. 5 Obvious evidence as well of continuous 6 abuse." 7 And, Constable Kirkland, you'll recall 8 that when -- when you went through your notes that 9 represented what you recorded as Dr. Smith's opinion as 10 expressed at the conclusion of the autopsy, am I right? 11 MR. SCOTT KIRKLAND: Yes, sir. 12 MR. MARK SANDLER: So -- so, Sergeant 13 Charmley, turning to you, it would appear -- and we 14 actually heard this from Professor Milroy who testified 15 some time ago in review of the file that had -- had this 16 represented the view that Dr. Smith maintained 17 throughout, this would have accurately represented what 18 the forensic pathology should have yielded. 19 So I have two (2) questions. The first 20 is: It would appear from Constable Kirkland's notes that 21 the very earliest expression of opinion by Dr. Smith was 22 that the fatal injury had occurred within a few hours 23 prior to death, am I right? 24 MR. LARRY CHARMLEY: That's right. 25 MR. MARK SANDLER: And -- and if -- if

207

1 that's accurate, if that had been the information that -- 2 that was communicated by Dr. Smith and maintained in the 3 -- in the investigation then would, in your view, the 4 Peterborough Police Service have had reasonable and 5 probable grounds to charge Brenda Waudby? 6 MR. SCOTT KIRKLAND: No, we would not. 7 MR. MARK SANDLER: Okay. Thank you. 8 Those are all the questions I have. Thank you both for 9 your assistance. 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 Thanks, Mr. Sandler. 12 Just one (1) sort of housekeeping 13 question, Sergeant Charmley, when a submission is made by 14 the Coroner's Office or the pathology component of it, 15 from the Coroner's Office to the Centre for Forensic 16 Science, you get a copy of that requisition? 17 MR. LARRY CHARMLEY: We -- 18 COMMISSIONER STEPHEN GOUDGE: I took that 19 to be the implication of you saying that might be where 20 you had got the sequencing of numbers. 21 MR. LARRY CHARMLEY: Yes, I -- we -- we 22 certainly keep a copy of everything we send, and I can 23 vaguely remember being on maybe one (1) or two (2) 24 autopsies where I -- I was even given a copy, because the 25 forms that the forensic pathologists use, at least the

208

1 last ones I had been to, are identical to the submission 2 forms -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MR. LARRY CHARMLEY: -- we use. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. LARRY CHARMLEY: And I have on a 7 couple occasions for other cases -- 8 COMMISSIONER STEPHEN GOUDGE: You just 9 don't know whether it -- 10 MR. LARRY CHARMLEY: -- gotten a form. 11 COMMISSIONER STEPHEN GOUDGE: -- that's 12 one (1) of the four (4) copies is destined for the police 13 service. 14 MR. LARRY CHARMLEY: That's -- yeah, 15 well -- 16 COMMISSIONER STEPHEN GOUDGE: Is that 17 your understanding? 18 MR. LARRY CHARMLEY: Yes, one (1) of them 19 is for the police service and I don't re -- I -- I either 20 got my sequencing from that form itself -- 21 COMMISSIONER STEPHEN GOUDGE: Or from the 22 -- or from the report. 23 MR. LARRY CHARMLEY: -- or from the 24 response from the CFS. 25 COMMISSIONER STEPHEN GOUDGE: Right.

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1 What I was getting at, obviously, the timeliness of all 2 this has been something we've heard a good deal about, 3 and clearly from the police file, one could know, A) when 4 the autopsy was, B) when the submission for assisting 5 toxicology was, and C) when the response from the CFS 6 came back. 7 MR. LARRY CHARMLEY: Yes. 8 COMMISSIONER STEPHEN GOUDGE: Okay, 9 thanks, that's helpful. Okay, well, thank you both very 10 much, you've been of great assistance. 11 MR. LARRY CHARMLEY: Thank you. 12 COMMISSIONER STEPHEN GOUDGE: It really 13 helps us get a complete picture of what we have to look 14 forward to try to make recommendations about, so I'm 15 grateful for the time and thought you've put into your 16 submissions. Safe return to Peterborough. 17 18 (WITNESSES STAND DOWN) 19 20 COMMISSIONER STEPHEN GOUDGE: We'll rise 21 now until 9:30 tomorrow morning. 22 23 --- Upon adjourning at 3:01 p.m. 24 25

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1 2 Certified Correct, 3 4 5 6 ___________________ 7 Rolanda Lokey, Ms. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25