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 16th, 2008 25

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

3
  1                   APPEARANCES (CONT'D)
  2  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
  3                                   Association
  4  
  5  Mara Greene               )     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        (np) )     Association in Defence of
 18  Vanora Simpson            )     the Wrongly Convicted
 19  Elizabeth Widner      (np) )
 20  Paul Copeland         (np) )
 21  
 22  Jackie Esmonde             )     Aboriginal Legal Services 
 23  Kimberly Murray      (np) )     of Toronto and Nishnawbe
 24  Sheila Cuthbertson    (np) )      Aski-Nation
 25  Julian Falconer      (np) )

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            )     General for Ontario
  7  Erin Rizok          (np)   )
  8  Kim Twohig          (np)   )
  9  Chantelle Blom     (np)    )
 10  
 11  Natasha Egan              )     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 MICHELE MANN, Sworn 4 ELIZABETH DORIS, Sworn 5 ROCCO GERACE, Affirmed 6 7 Examination-In-Chief by Mr. Robert Centa 6 8 Cross-Examination by Ms. Carolyn Silver 175 9 Cross-Examination by Ms. Erica Baron 202 10 Cross-Examination by Mr. Peter Wardle 206 11 Cross-Examination by Ms. Suzan Fraser 231 12 Cross-Examination by Ms. Vanora Simpson 238 13 Cross-Examination by Ms. Jackie Esmonde 246 14 Cross-Examination by Mr. Brian Gover 259 15 Cross-Examination by Mr. William Carter 301 16 Re-Cross-Examination by Ms. Carolyn Silver 326 17 18 19 Certificate of transcript 331 20 21 22 23 24 25

1 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 Mr. Centa...? 8 MR. ROBERT CENTA: Good morning, 9 Commissioner. Today we are jointed by three (3) 10 witnesses from the College of Physicians and Surgeons of 11 Ontario: Dr. Rocco Gerace, Ms. Michele Mann, and Ms. 12 Elizabeth Doris. They'll be with us for today. I'll 13 complete my examination by the lunch break. 14 So if the Registrar would like to swear in 15 the witnesses. 16 17 MICHELE MANN, Sworn 18 ELIZABETH DORIS, Sworn 19 ROCCO GERACE, Affirmed 20 21 EXAMINATION-IN-CHIEF BY MR. ROBERT CENTA: 22 MR. ROBERT CENTA: Good morning. Dr. 23 Gerace, I'd like to begin with you. First, to facilitate 24 your evidence today, the College of Physicians and 25 Surgeons of Ontario has prepared an institutional report.

1 I understand you've had an opportunity to 2 review the institutional report. 3 DR. ROCCO GERACE: I have. 4 MR. ROBERT CENTA: And you adopt its 5 contents as part of your evidence today? 6 DR. ROCCO GERACE: Yes. 7 MR. ROBERT CENTA: Commissioner, that 8 document has a Beg Doc, PFP302481, and it is the 9 institutional report of the College of Physicians and 10 Surgeons. Dr. Gerace, if you turn in ta -- to Tab 1 of 11 Volume I, your CV is found at PFP302473. 12 And you received your Doctor of Medicine 13 degree from the University of Western Ontario in 1972? 14 DR. ROCCO GERACE: That's correct. 15 MR. ROBERT CENTA: And from 1976 to 16 present you've held a variety of academic positions at 17 the University of Western Ontario? 18 DR. ROCCO GERACE: Yes. 19 MR. ROBERT CENTA: And for part of your 20 career were you essentially full-time on faculty at the 21 University of Western Ontario? 22 DR. ROCCO GERACE: It was a full-time 23 faculty appointment, but that's associated with clinical 24 practice. 25 MR. ROBERT CENTA: Okay. And your time

1 at the University of Western Ontario and the variety of 2 appointments is set out at page 2 of your -- of your CV. 3 You are currently the Registrar of the 4 College and Physicians and Surgeons of Ontario? 5 DR. ROCCO GERACE: Yes. 6 MR. ROBERT CENTA: And since 1995 you've 7 held a variety of positions at the College? 8 DR. ROCCO GERACE: Yes. 9 MR. ROBERT CENTA: Commissioner, at the 10 College's institutional report, PFP302481, pages 4 to 8 11 of that document set out and describe a number of the 12 committees, and counsels, and roles with which Dr. Gerace 13 has been associated in his time, so I refer you to that 14 for the description of the committees that I'm going to 15 refer to just briefly with you now, Dr. Gerace. 16 In 1995 and '96 you were a non-counsel 17 member of the College's Discipline Committee. 18 DR. ROCCO GERACE: That's correct. 19 MR. ROBERT CENTA: And from 1996 to 2002 20 you were a member of the College's counsel. 21 DR. ROCCO GERACE: That's correct. 22 MR. ROBERT CENTA: From '98 to 2002 you 23 sat on its Executive Committee in a variety of roles. 24 DR. ROCCO GERACE: Yes. 25 MR. ROBERT CENTA: You were Vice-

1 President of the College of Physicians and Surgeons in 2 1999/2000. 3 DR. ROCCO GERACE: Yes. 4 MR. ROBERT CENTA: And you followed that 5 with a term as its President in 2000/2001. 6 DR. ROCCO GERACE: That's correct. 7 MR. ROBERT CENTA: Part of your evidence 8 today is going to focus on your time at the Complaints 9 Committee, and I understand between 1996 and 2000 you sat 10 on the Complaints Committee. 11 DR. ROCCO GERACE: That's correct. 12 MR. ROBERT CENTA: And you served as it's 13 co-chair from 1997 to '99? 14 DR. ROCCO GERACE: Yes. 15 MR. ROBERT CENTA: And you were Chair of 16 the Complaints Committee from 1999 to 2000. 17 DR. ROCCO GERACE: Yes, that's right. 18 MR. ROBERT CENTA: You assumed the ti -- 19 your current position as Registrar in 2002. 20 DR. ROCCO GERACE: Yes. 21 MR. ROBERT CENTA: Ms. Mann, turning next 22 to you, you joined the College of Physicians and Surgeons 23 in August of 1989. 24 MS. MICHELLE MANN: That's correct. 25 MR. ROBERT CENTA: And what was your job

1 title when you started at the College? 2 MS. MICHELLE MANN: Investigator of 3 clinical investigations. 4 MR. ROBERT CENTA: Since that time you've 5 had -- held a number of positions at the College all 6 related to investigations? 7 MS. MICHELLE MANN: That's correct. 8 MR. ROBERT CENTA: And could you just 9 briefly give the various titles that you've filled 10 through that time? 11 MS. MICHELLE MANN: At one (1) point I 12 was in the title of Senior Investigator in charge of a 13 team of investigators, and with some restructuring, the 14 position was eliminated and I went back to a position of 15 Investigator, and I'm currently Team Leader of clinical 16 investigations. 17 MR. ROBERT CENTA: At a variety of 18 different times during your career at the College you've 19 had a responsibility for supervising investigators? 20 MS. MICHELLE MANN: Yes, that's correct. 21 MR. ROBERT CENTA: And providing them 22 with feedback and advice on how to conduct 23 investigations. 24 MS. MICHELLE MANN: Correct. 25 MR. ROBERT CENTA: Prior to joining the

1 College of Physicians and Surgeons, you were a nurse. 2 MS. MICHELLE MANN: That's correct. 3 MR. ROBERT CENTA: And where did you work 4 as a nurse? 5 MS. MICHELLE MANN: In Mississauga 6 Hospital in the Gynaecology Unit for about two (2) years, 7 and then at St. Josephs Hospital in Hamilton in critical 8 care nursing, and then after that, at Durham College as a 9 clinical nursing instruction, a year two (2) medical 10 surgical nursing. 11 MR. ROBERT CENTA: Okay. And, Ms. Doris, 12 you also worked at the College as a investigator. 13 MS. ELIZABETH DORIS: I did. 14 MR. ROBERT CENTA: And when did you join 15 the College? 16 MS. ELIZABETH DORIS: In 2000. 17 MR. ROBERT CENTA: And you worked at the 18 College from that time until May 2003? 19 MS. ELIZABETH DORIS: Correct. 20 MR. ROBERT CENTA: And at that point you 21 went off on a maternity leave. 22 MS. ELIZABETH DORIS: Correct. 23 MR. ROBERT CENTA: And did you return to 24 the College after that? 25 MS. ELIZABETH DORIS: No, I did not.

1 MR. ROBERT CENTA: Okay. Prior to 2 joining the College, I also understand you were a 3 Registered Nurse. 4 MS. ELIZABETH DORIS: Yes. 5 MR. ROBERT CENTA: And where did you 6 work? 7 MS. ELIZABETH DORIS: At Toronto General 8 Hospital. 9 MR. ROBERT CENTA: For approximately what 10 time period? 11 MS. ELIZABETH DORIS: From 1988 until 12 2000. 13 MR. ROBERT CENTA: Thank you. 14 Mrs. Mann, I'd like to turn and ask you 15 some questions about your awareness of certain debates 16 taking place at the College of Physicians and Surgeons, 17 in general, regarding the jurisdiction of the College to 18 investigate complaints regarding coroners. 19 MS. MICHELE MANN: Mm-hm. 20 MR. ROBERT CENTA: If you would turn in 21 Volume I to Tab 14, which is PFP152519. This is a letter 22 to you dated November 29, 1996 from Richard Steinecke, 23 correct? 24 MS. MICHELE MANN: Correct. 25 MR. ROBERT CENTA: It's an opinion

1 regarding the College's jurisdiction to investigate 2 complaints against coroners? 3 MS. MICHELE MANN: That's correct. 4 MR. ROBERT CENTA: And is it fair to 5 summarize this opinion, that Mr. Steineke sets out a 6 number of principles. First, that the College did have 7 jurisdiction over the conduct of the coroners? 8 MS. MICHELE MANN: Correct. 9 MR. ROBERT CENTA: But it may not have 10 jurisdiction over the quasi-judicial decisions of 11 coroners conducted -- made during an inquest? 12 MS. MICHELE MANN: That's correct. 13 MR. ROBERT CENTA: Mr. Steineke does 14 suggest in the opinion that: 15 "Most complaints about cor -- about the 16 coroner system or coroners would 17 probably be more sensibly processed 18 through the coroner's complaint 19 system." 20 MS. MICHELE MANN: Correct. 21 MR. ROBERT CENTA: "And the College could 22 well decide to refer all complaints 23 about coroners except for the most 24 serious complaints, complaints where 25 the complainant refused to accept the

1 recommendation to refer the matter to 2 the Office of the Chief Coroner and 3 situations where the welfare of 4 coroner's patience was in jeopardy." 5 MS. MICHELE MANN: That's correct. 6 MR. ROBERT CENTA: Did that opinion 7 reflect your understanding of the College's practice in 8 1996? 9 MS. MICHELE MANN: Yes. 10 MR. ROBERT CENTA: You then prepared a 11 memo to Dr. Carlisle, and this is down as PFP145760, 12 dated January 23rd, 1997. It's at Tab 17 of your binder. 13 And who was Dr. Carlyle? 14 MS. MICHELE MANN: At the time, Dr. 15 Carlyle was the Deputy Registrar of the College. 16 MR. ROBERT CENTA: And this memo sets out 17 your understanding of the practice at the College of 18 Physicians and Surgeons as of January 1997? 19 MS. MICHELE MANN: That's correct. 20 MR. ROBERT CENTA: And why did you write 21 this memo? 22 MS. MICHELE MANN: As a means of 23 affirming for Dr. Carlyle that the staff had been 24 apprised of the College's position with regard to 25 investigation involving coroners and to let him know --

1 confirm for him that staff had been advised of this, and 2 we're of the current understanding of what our practice 3 was now. 4 MR. ROBERT CENTA: Your memo indicates 5 that there were an increasing number of complaints about 6 coroners. Do you recall what kinds of complaints those 7 were? 8 MS. MICHELE MANN: There would be a 9 variety of different types of complaints. Some might 10 have been coming to us for the first time, not having 11 been to the Coroner's Office at all and not aware of the 12 Coroner's Council. And some might have been individuals 13 who had been to the Coroner's Office and were maybe not 14 satisfied with what had been done there and therefore 15 wanted to come to the College. 16 MR. ROBERT CENTA: Do you recall why they 17 were dissatisfied with what had been done at the 18 Coroner's Office? 19 MS. MICHELE MANN: I think they were just 20 not happy. They didn't get the outcome that they 21 expected they might get at the Coroner's Office. 22 MR. ROBERT CENTA: The memo indicates: 23 "That the staff will refer complaints 24 where possible to the Chief Coroner." 25 And then it says [quote]:

1 "However, if a complainant insists on 2 dealing with us, we will proceed in the 3 usual manner." 4 And what was the usual manner? 5 MS. MICHELE MANN: To take the matter to 6 Complaints Committee for review and for a decision. 7 MR. ROBERT CENTA: So you would treat the 8 complaint as if it had been made against any physician? 9 MS. MICHELE MANN: That's correct. 10 MR. ROBERT CENTA: Did you receive any 11 response to this memo? 12 MS. MICHELE MANN: No. 13 MR. ROBERT CENTA: So you understood that 14 it was accepted that this was an accurate description of 15 the College's policy at -- 16 MS. MICHELE MANN: That -- 17 MR. ROBERT CENTA: -- that time? 18 MS. MICHELE MANN: That's correct. 19 MR. ROBERT CENTA: If we could, 20 Registrar, call up PFP145592, this is found at Volume I, 21 Tab 20 of your materials and it's minutes from a July 22 3rd, 1997 meeting of the Senior Management Group. 23 Dr. Gerace, at this time you were co-chair 24 of the Complaints Committee. Were you at -- did you 25 attend meetings of the Senior Management Group at that

1 time? 2 DR. ROCCO GERACE: I did not. 3 MR. ROBERT CENTA: Mrs. Mann, would you 4 have been at these meetings? 5 MS. MICHELE MANN: I would have been at 6 some of the meetings, not necessarily all of them. 7 MR. ROBERT CENTA: Do you recall whether 8 or not you were at this specific meeting? 9 MS. MICHELE MANN: I don't recall, no. 10 MR. ROBERT CENTA: Dr. -- the minutes 11 record that Dr. Carlyle indicated that [quote]: 12 "The CPSO does not have jurisdiction 13 over the coroner and if a complaint was 14 received, it was sent to Coroner's 15 Counsel unless the coroner misconducted 16 himself or herself outside of the 17 duties of the coroner." 18 And the minutes reflect that Drs. Young 19 and Cairns would be invited to the September meeting of 20 the Executive Committee to discuss that issue. 21 And do you recall whether or not Doctors 22 Young and Cairns did attend an Executive Committee 23 meeting -- to discuss this issue? 24 MS. MICHELE MANN: My understanding was 25 they did, but I wasn't at that Executive Committee so I

1 couldn't say for certain. 2 MR. ROBERT CENTA: And at that time, did 3 you attend Executive Committee meetings on a regular 4 basis? 5 MS. MICHELE MANN: No. 6 MR. ROBERT CENTA: Okay. If I could turn 7 to Tab 21, PFP145571, this is a memo dated September 8 24th, 1997 from Dr. Carlisle, the Deputy Registrar, to 9 the Executive Committee, and it is a background briefing 10 in anticipation of the visit to the Executive Committee 11 by doctors Young and Cairns. 12 Dr. Gerace, did you see this memo before 13 you were preparing for the Inquiry? 14 DR. ROCCO GERACE: I did. 15 MR. ROBERT CENTA: You did? 16 DR. ROCCO GERACE: Yes. 17 MR. ROBERT CENTA: At when did you see 18 it? 19 DR. ROCCO GERACE: It would have been 20 within the last couple of weeks. 21 MR. ROBERT CENTA: But prior to preparing 22 to come to give evidence -- 23 DR. ROCCO GERACE: I'm sorry. 24 MR. ROBERT CENTA: -- at the Inquiry. 25 Did you receive it in 1997?

1 DR. ROCCO GERACE: I did not. 2 MR. ROBERT CENTA: So you wouldn't have 3 seen it at the time, only much later? 4 DR. ROCCO GERACE: That's correct. 5 MR. ROBERT CENTA: Mrs. Mann, did you see 6 this memo before preparing for the Inquiry? 7 MS. MICHELE MANN: I can't honestly 8 recall if I did see it or not. I might have, but I don't 9 recall. 10 MR. ROBERT CENTA: In any event, the -- 11 it appears from the minutes of the Executive Committee 12 meeting that the Executive Committee did meet with 13 doctors Young and Cairns on October 15th. 14 If we could have PFP152529, which is 15 Volume I, Tab 23 of your material, the minutes do record 16 that the Executive Committee met with Dr. Young and Dr. 17 Cairns. 18 It was pointed out that: 19 "The provisions currently under the 20 Medicine Act and the Coroner's Act 21 result in confusion and overlapping 22 jurisdiction, when matters are raised 23 relating to the coroner's actions when 24 a question arises as to the appropriate 25 conduct. The Chief Coroner and

1 coroner's counsel have specific powers 2 and duties with regard to complaints 3 against coroners. However, the health 4 professions procedural code requires 5 the College to investigate all 6 complaints made again physicians and it 7 does not stipulate an exemption for 8 coroners. It was agreed by both 9 parties that the ultimate solution is 10 amendment to the legislation. However, 11 until either the Coroner's Act or the 12 RHPA is opened, the College will act as 13 outlined in the appended summary of the 14 meeting prepared by Dr. Carlisle." 15 Ms. Mann, you don't recall being at that 16 Executive Committee meeting? 17 MS. MICHELE MANN: No. 18 MR. ROBERT CENTA: Dr. Carlisle's memo is 19 set out at Tab 24, PFP148172, and it's dated October 20 29th, 1997. And Mrs. Mann, would you have seen a copy of 21 this memo in October of 1997? 22 MS. MICHELE MANN: It's possible I may 23 have, I don't recall. 24 MR. ROBERT CENTA: And if you didn't see 25 this specific memo, would the content have been

1 communicated to you as reflecting the College's policy? 2 MS. MICHELE MANN: Yes. 3 MR. ROBERT CENTA: Am I correct that the 4 memo essentially sets out an agreement with the Office of 5 the Chief Coroner that for acts done by a coroner as part 6 of the practice of medicine, complaints should go to the 7 Complaints Committee, and not to the Office of the Chief 8 Coroner? 9 MS. MICHELE MANN: Yes. 10 MR. ROBERT CENTA: But for acts done by a 11 coroner in the exercise of the duties of the Office of 12 the Coroner, the complaints would go to the Office of the 13 Chief Coroner and not to the Complaints Committee? 14 MS. MICHELE MANN: Correct. 15 MR. ROBERT CENTA: And it does also 16 provide that if a complainant were to insist that a 17 complaint about a coroner be dealt with by the Complaints 18 Committee, the coroner would be required to reply only to 19 the extent required to establish that the acts complained 20 of were not the practice of medicine, but were performed 21 in the exercise of the Office of the Coroner, and at that 22 point the Complaints Committee could then dismiss the 23 matter and refer to the Office of the Chief Coroner? 24 MS. MICHELE MANN: Correct. 25 MR. ROBERT CENTA: And am I correct that

1 that represented the functioning policy of the College of 2 Physicians and Surgeons as of November 1997? 3 MS. MICHELE MANN: Correct. 4 MR. ROBERT CENTA: Thank you. Mrs. Mann, 5 I'd now like to ask you some questions about a complaint 6 filed by DM to the College regarding Dr. Smith's conduct 7 in Amber's Case. 8 Commissioner, the Amber overview report is 9 found at PFP143724, and I'm just going to refer briefly 10 to a couple of it's paragraphs as background. Paragraph 11 1: 12 "Amber was born in Timmins, Ontario on 13 March 13th, 1987. She was the child of 14 Francis and Richard. She died on July 15 30th, 1998 at the age of sixteen (16) 16 months at the Hospital for Sick 17 Children in Toronto. 18 Paragraph 2: 19 Criminal proceedings were initiated 20 against Ambers twelve (12) year old 21 babysitter, SM. She was charged with 22 manslaughter on December 15th, 1988. 23 Her trial commenced on October 15th, 24 1989. There were thirty (30) hearing 25 days over the next thirteen (13)

1 months, and the trial concluded on 2 November 6th, 1990. On July 25th, 3 1991, Justice Dunn acquitted SM." 4 Now, Mrs. Mann, you took over carriage of 5 DM's complaint to the College in approximately October, 6 1996? 7 MS. MICHELE MANN: That's correct. 8 MR. ROBERT CENTA: Why did you take over 9 the file? 10 MS. MICHELE MANN: The previous 11 investigator had left the College. 12 MR. ROBERT CENTA: What did you do first 13 when you received the file? 14 MS. MICHELE MANN: I thoroughly reviewed 15 all the material that was contained within the file, that 16 was the first job I did. And following that, I made 17 arrangements to contact the family, the DM, and arrange a 18 meeting with DM, his wife and SM. 19 MR. ROBERT CENTA: Okay. Registrar, 20 PFP148678 is a letter to DM to Mr. Newport and it's found 21 at Tab 4 of Volume I. 22 And am I correct that this represents the 23 first letter from DM to the College of Physicians and 24 Surgeons, Mrs. Mann? 25 MS. MICHELE MANN: Yes.

1 MR. ROBERT CENTA: This -- DM's letter 2 reads: 3 "In regards to our recent telephone 4 conversation, I've enclosed the 5 judgment and other documentation to 6 support my complaint that doctors at 7 the Hospital for Sick Children were 8 negligent in forming a diagnosis of 9 child abuse [bracket] (shaking) [close 10 bracket] in the death of the infant, 11 Amber, that resulted in a charge of 12 manslaughter onto my twelve (12) year 13 old daughter." 14 The final paragraph: 15 "Our case has been a tragedy but let's 16 not have this repeat itself. My fear 17 is that many of the problems arising in 18 our case are endemic to the SCAN and 19 quality control problems at the 20 Hospital for Sick Children." 21 Mrs. Mann, you read this letter when you 22 got the file? 23 MS. MICHELE MANN: Correct. 24 MR. ROBERT CENTA: And you also read the 25 Judgment of Justice Dunn that was attached to the letter?

1 MS. MICHELE MANN: Correct. 2 MR. ROBERT CENTA: If I could have 3 PFP145583, this is a memo, December 31st, 1991, from Dr. 4 Carlisle to Dr. Dixon. 5 Dr. Gerace, you didn't see this memo at 6 the time it was prepared? 7 DR. ROCCO GERACE: That's correct. 8 MR. ROBERT CENTA: And Mrs. Mann, you 9 would have read it only when you reviewed the file? 10 MS. MICHELE MANN: Which tab are we at, 11 please? 12 MR. ROBERT CENTA: Volume I, Tab 5. I'm 13 sorry. PFP145 -- 14 MS. MICHELE MANN: Correct. 15 MR. ROBERT CENTA: -- 583. And the memo 16 at the bottom of page 1, the last paragraph, says: 17 "The case raises the fundamental issue 18 which has plagued our College on a 19 number of occasions. That issue is 20 whether the complaints process of our 21 College was intended to deal with 22 clinical failures and clinically- 23 related misconduct or whether it was 24 the intention of the legislation to 25 deal with all conduct of physicians

1 even that of an administrative nature." 2 Dr. Gerace, you sat on the Complaints 3 Committee that eventually dealt with the DM complaint? 4 DR. ROCCO GERACE: Yes. 5 MR. ROBERT CENTA: And at that time you 6 read Justice Dunn's Judgment? 7 DR. ROCCO GERACE: I did. 8 MR. ROBERT CENTA: In your opinion, were 9 the SCAN physicians involved in Amber's case engaged in 10 the practice of medicine when they made their diagnosis 11 of suspected child abuse? 12 DR. ROCCO GERACE: They were. 13 MR. ROBERT CENTA: Was Dr. Smith engaged 14 in the practice of medicine when he performed his post- 15 mortem examination? 16 DR. ROCCO GERACE: Yes. 17 MR. ROBERT CENTA: Did DM's complaint 18 implicate physician conduct that could be fairly 19 described as only of an administrative nature? 20 DR. ROCCO GERACE: It was my view that 21 all of these physicians were engaged in the practice of 22 medicine, so I don't believe it was administrative. 23 MR. ROBERT CENTA: Mrs. Mann, you were 24 not involved in the file at the time, but on January 25 14th, 1992, the Executive Committee ordered an

1 investigation into SCAN under the terms of the Public 2 Hospitals Act. 3 PFP152524, which is Volume I, Tab 6, page 4 2. And those are the minutes from the Executive Committee 5 meeting held in January of 1992. Turn up page 2, 6 Registrar. 7 And that indicates in the complaint, the 8 Executive Committee ordered an investigation under the 9 authority of the Public Hospitals Act into the SCAN Team. 10 Can you assist: What is the significance 11 of this complaint being investigated as a -- under the 12 Public Hospitals Act? 13 MS. MICHELE MANN: As an investigation 14 under the Public Hospitals Act this enables the College 15 to obtain records from a hospital facility without 16 necessarily having consent of the patient. 17 MR. ROBERT CENTA: Thank you. Now 18 despite this investigation having been ordered, if we 19 look at Tab 7 of Volume I, PFP148654, on March 24th, 20 1992, approximately two (2) months later, DM filed a 21 formal complaint regarding Dr. Smith and the members of 22 the SCAN Team. 23 And, Mrs. Mann, is it fair to say that 24 DM's complaint focussed on first, the criticisms of Dr. 25 Smith and the other Hospital for Sick Children's SCAN

1 physicians that were set out in Justice Dunn's seventy- 2 five (75) page decision? 3 MS. MICHELE MANN: Yes, DM's complaint 4 initially did involve all three (3) physicians. 5 MR. ROBERT CENTA: But that the 6 criticisms were -- were linked to the criticisms of 7 Justice Dunn that were set out in the -- in the decision? 8 MS. MICHELE MANN: Very closely linked, 9 yes. 10 MR. ROBERT CENTA: And the second element 11 of his complaint focussed on the strongly held opinions 12 of the nine (9) defence experts who had disagreed with 13 Dr. Smith and the other doctors during the trial. 14 MS. MICHELLE MANN: Correct. 15 MR. ROBERT CENTA: Mrs. Mann, is it the 16 College's practice to provide the -- the physician about 17 whom the complaint is made with a copy of the complaint? 18 MS. MICHELLE MANN: Yes. 19 MR. ROBERT CENTA: Did that happen in 20 this case? 21 MS. MICHELLE MANN: Yes, I believe it 22 did. 23 MR. ROBERT CENTA: If you look at Tab 8, 24 PFP148309, this is a transmittal letter to Dr. Smith from 25 Mr. Newport attaching the complaint and requesting a

1 response. Mrs. Mann, did -- Dr. Smith provided a 2 response to this complaint? 3 MS. MICHELLE MANN: Yes, he did. 4 MR. ROBERT CENTA: If you'd look at Tab 5 9, PFP147101, is this Dr. Smith's response to DM's 6 complaint? 7 MS. MICHELLE MANN: Yes, it is. 8 MR. ROBERT CENTA: If I could have page 9 2, Registrar, of that document, and Mrs. Mann, if you 10 could take a look at page 2. Dr. Smith writes: 11 "I am one (1) of the physicians who is 12 required to testify in this case. It 13 was my opinion that in the absence of a 14 credible history, Amber's death 15 resulted from head injury; it was non- 16 accidental in nature. Furthermore, in 17 my opinion, that this pattern of 18 injuries could best be explained on the 19 basis of Shaken Baby Syndrome. In 20 spite of several days of vigorous 21 cross-examination by the defence 22 counsel for es -- essay on Mr. Renault, 23 my opinion did not waiver. 24 Furthermore, on two (2) occasions 25 during my week of testimony, the Judge,

1 Patrick Dunn, discussed my evidence 2 with me at length. He repeatedly 3 indicated to me that he believed SM to 4 be guilty, and that he believed the 5 opinions provided by Drs. Barker and 6 me." 7 Mrs. Mann, after you were assigned this 8 file, did you read this response? 9 MS. MICHELLE MANN: I did. 10 MR. ROBERT CENTA: Do you recall what 11 reaction, if any, you had to Dr. Smith's statements about 12 his discussions with Justice Dunn? 13 MS. MICHELLE MANN: I was surprised, and 14 I was concerned. 15 MR. ROBERT CENTA: Why were you 16 surprised? 17 MS. MICHELLE MANN: Because I didn't 18 think it was appropriate for a Judge to be discussing a 19 case with a witness. 20 MR. ROBERT CENTA: And why were you 21 concerned? 22 MS. MICHELLE MANN: Because I felt that 23 it -- Judges aren't allowed to discuss cases with a 24 witness when a witness is still involved in the process 25 of a trial --

1 MR. ROBERT CENTA: At that -- 2 MS. MICHELLE MANN: -- and it seemed to 3 me to be inappropriate. 4 MR. ROBERT CENTA: At that time who did 5 you think this statement reflected badly on, Dr. Smith or 6 Justice Dunn? 7 MS. MICHELLE MANN: If I were to have 8 believed the statement as set out, the concern lay with 9 Justice Dunn for having engaged in a discussion, if, in 10 fact, he had, with Dr. Smith. 11 MR. ROBERT CENTA: At the time did you 12 believe the statement to be true? 13 MS. MICHELLE MANN: I had no reason to 14 believe it wasn't true. 15 MR. ROBERT CENTA: Dr. Smith's response 16 was provided to DM, correct? 17 MS. MICHELLE MANN: That's correct. 18 MR. ROBERT CENTA: And that's found at 19 Tab 10 of your binder, Vo -- Volume I, PFP148308. And DM 20 then replied to Dr. Smith's response, and this is found 21 at Tab 11 of your binder, PFP145975. 22 And Mrs. Mann, I take it you read DM's 23 response. 24 MS. MICHELLE MANN: Yes, I did. 25 MR. ROBERT CENTA: If I could turn you to

1 page 5 in that document, it is the last page, and the 2 last paragraph of the rep -- of DM's reply, it reads: 3 "Finally, Dr. Smith has made 4 inappropriate and unsubstantiated 5 remarks persane -- pertaining to the 6 opinion of Judge Dunn in this case. In 7 light of Judge Dunn's strong criticism 8 of Dr. Smith in the reasons for 9 judgment and Judge Dunn's comment in 10 Court that Dr. Smith gave incomplete 11 testimony, I submit that Dr. Smith is 12 fabricating this point to mislead the 13 reader. I'm of the opinion that Judge 14 Dunn should be asked to comment on Dr. 15 Smith's remarks. Furthermore, Dr. 16 Smith is completely out of line with 17 his comments about my family's request 18 for compensation." 19 And skipping to the last sentence of that: 20 "In my opinion, Dr. Smith cannot be 21 trusted." 22 Mrs. Mann, to the best of your knowledge, 23 did Mr. Newport followup on DM's suggestion to contact 24 Justice Dunn? 25 MS. MICHELLE MANN: I'm not aware that he

1 did. 2 MR. ROBERT CENTA: When you took over the 3 file, did you ask Justice Dunn to comment on Ms. -- Dr. 4 Smith's remarks? 5 MS. MICHELLE MANN: No, I did not. 6 MR. ROBERT CENTA: Why not? 7 MS. MICHELLE MANN: Because I felt if 8 this had occurred, it was a matter for the Criminal 9 Courts to deal with and not a matter for the College as 10 it didn't involve the practice of medicine. 11 MR. ROBERT CENTA: During your time 12 handling this file, did Dr. Smith ever discuss this 13 allegation any further? 14 MS. MICHELLE MANN: The allegation of his 15 discussion with Justice Dunn? 16 MR. ROBERT CENTA: Yes. 17 MS. MICHELLE MANN: No. 18 MR. ROBERT CENTA: Ms. Doris, you 19 subsequently took over this file after some period of 20 time? 21 MS. ELIZABETH DORIS: Yes. 22 MR. ROBERT CENTA: And while you were 23 investigating the file did you ever ask Justice Dunn to 24 comment on Dr. Smith's allegations? 25 MS. ELIZABETH DORIS: No, I did not.

1 MR. ROBERT CENTA: Why not? 2 MS. ELIZABETH DORIS: I felt that if, in 3 fact, that was true that it was a judicial issue. 4 MR. ROBERT CENTA: Commissioner, 5 Commission Counsel have obtained an affidavit from 6 Justice Dunn that addresses the allegations Dr. Smith 7 made about having discussed the SM Case with him. 8 And the allegations made in -- in two (2) 9 forums that I'll bring up. Before the affidavit was 10 circulated -- before the affidavit was introduced today, 11 it was circulated to parties with standing. 12 And we have also provided an advance copy 13 to Dr. Smith's counsel, and they've advised us that Dr. 14 Smith does not object to the affidavit being filed with 15 the Commission. 16 And that Dr. Smith does not intend to 17 challenge the contents of this affidavit during this 18 Inquiry. If I could turn you to Volume III, Tab 1, 19 PFP302594. This is a copy of the affidavit of Justice 20 Dunn, sworn December 19th, 2007. 21 And as I indicated, it was sworn in 22 response to the allegations made by Dr. Smith in two (2) 23 places. First, to -- in the response to the College, but 24 also in an interview, that was transcribed, that Dr. 25 Smith had with Jane O'Hara from Maclean's Magazine.

1 So in order to understand the affidavit, 2 having looked at the response to the College, I would ask 3 that the Registrar call up PFP302679, which is found in 4 Volume III, Tab 5, and is Exhibit D to Justice Dunn's 5 affidavit. 6 And on page 2 of this excerpt from the 7 interview with Jane O'Hara, Ms. O'Hara is asking him a 8 question. So if -- Registrar, if I could have page 2 of 9 that document? 10 COMMISSIONER STEPHEN GOUDGE: Sorry, what 11 Tab, Mr. Centa? 12 MR. ROBERT CENTA: This is Volume III, 13 Tab 5 -- 14 COMMISSIONER STEPHEN GOUDGE: Thank you. 15 MR. ROBERT CENTA: -- Commissioner. 16 PFP302679. 17 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 18 19 CONTINUED BY MR. ROBERT CENTA: 20 MR. ROBERT CENTA: And on page 2, in the 21 first part of the transcript that is -- follows the 22 letters "JO", which stand for Jane O'Hara, Ms. O'Hara 23 says: 24 "I'm not sure you'd said it, but the 25 Judge apparently told you during the

1 trial that SM was guilty? 2 DR. SMITH: That's right. 3 DR. SMITH: He told me that on several 4 occasions. 5 MS. O'HARA: Was that in open court? 6 DR. SMITH: No. I'll tell you when it 7 first occurred, and this is all off the 8 record. 9 MS. O'HARA: Sure. 10 DR. SMITH: I testified. I flew up 11 there being told I'd be on the stand 12 for a few hours, and I can't remember 13 the days of the week, but I ended up 14 there on a Friday or something. And 15 then so, I was flying back to Toronto 16 for the weekend, and at that time, both 17 Canadian and Air Canada or Air Ontario 18 flew up to Timmins. At lunchtime, just 19 as we were going to break, Judge Dunn 20 asked me how I was returning to 21 Toronto, and I indicated to him. 22 Unbeknownst to me, he was aware that 23 the Canadian flight I was on was 24 cancelled. Then he made arrangements 25 for me to have my ticket moved to the

1 other airline. And then he had made 2 arrangements for me to sit with him on 3 the airplane. And I walked onto the 4 airplane and was stunned when I found 5 myself sitting next to this man who 6 immediately began to disc -- began 7 discussing the case with me. 8 MS. O'HARA: At this point, you're 9 flying back down to Toronto? 10 DR. SMITH: Yes. I'm in the middle of 11 my testimony, and I felt extremely 12 uncomfortable discussing the case with 13 him, and he said, It's fine, because I 14 will base my decision on the evidence 15 in court. He said, I can be hearer of 16 the fact and trier of the fact, and 17 this is fine. And that was the first 18 occasion in which he told me that SM 19 was guilty as sin. And he made 20 arrangements when I flew back Sunday 21 afternoon to go back and testify some 22 more, I found myself once again sitting 23 beside him on the airplane, which I 24 found extremely -- extremely unusual. 25 So that was the conversation came from

1 there. I don't know how to handle the 2 man or the situation. It was 3 absolutely bizarre." 4 And then, Commissioner, Justice Dunn's 5 affidavit is found in Tab 1 of Volume III. It was 6 PFP302594, and Justice Dunn has affirmed as follows: 7 "I am a Justice of the Ontario Court of 8 Justice in Brampton, Ontario. In 9 October 1989 -- in February -- October, 10 November 1990, I presided over the case 11 of R and SM in Timmins, Ontario. As 12 such, I have personal knowledge of the 13 matters to which I hear and oppose." 14 He then attaches his decision released on 15 July 25th, 1991. He states as follows, in paragraph 3: 16 "During the course of the trial, I flew 17 back and forth to Tor -- between 18 Toronto and Timmins. On one (1) 19 occasion I was on the same flight from 20 Timmins to Toronto with Dr. Charles 21 Smith. Dr. Smith and I exchanged 22 pleasantries on the flight. Although I 23 do not have a specific recollection of 24 my conversation with Dr. Smith, I am 25 certain I did not discuss the merits of

1 the case or the evidence with Dr. 2 Smith. I may have commented on the 3 Susan Nelles case, because I understood 4 Dr. Smith had some involvement in that 5 case. I recall speaking to Dr. Smith 6 on one (1) other occasion, about a year 7 after the SM Case. I attended a Family 8 Law Conference, Dr. Smith was one (1) 9 of the presenters. 10 I spoke to Dr. Smith very briefly at 11 the conference, perhaps while Dr. Smith 12 was setting up his slides for the 13 presentation. I do not have a specific 14 recollection of what we discussed. I 15 have reviewed Dr. Smith's letter to the 16 College of Physicians and Surgeons of 17 Ontario dated May 4th, 1992. 18 At no point during the course of the 19 trial did I discuss Dr. Smith's 20 evidence with him or indicate to Dr. 21 Smith that I believed SM to be guilty. 22 I also did not indicate to Dr. Smith 23 that I believed the opinions provided 24 by Drs. Barker, Driver, and Smith, as 25 alleged in Dr. Smith's letter to the

1 CPSO. A copy of Dr. Smith's letter is 2 attached. 3 I have reviewed Dr. Smith's report of 4 our conversation at the Family Law 5 Conference outlined in paragraph 4 of 6 my affidavit, as detailed in Dr. 7 Smith's email to Jane O'Hara of 8 MacLean's Magazine of May 7, 2001. Dr. 9 Smith's report of our conversation is 10 inconsistent with my recollection. I 11 am certain I did not approach Dr. Smith 12 to discuss the SM case. I did not 13 agree with Dr. Smith that [quote] 'If 14 the case had gone to trial in the late 15 '90s as opposed to the early '90s, the 16 uncertainties at that trial would have 17 been obviated.' 18 In fact, I have no recollection 19 discussing the SM case with Dr. Smith 20 at the Family Law Conference or at any 21 other time. I would not have discussed 22 the case with Dr. Smith. I would have 23 let the written judgment speak for 24 itself. A copy of Dr. Smith's email is 25 attached at Exhibit C.

1 I reviewed an excerpt of the transcript 2 of a taped interview between Dr. Smith 3 and Ms. O'Hara on May 8th, 2001. I 4 never informed Dr. Smith during the 5 trial or at any other point that I 6 thought SM was guilty. I have no 7 recollection of making any arrangements 8 with regards to Dr. Smith's airline 9 tickets, and I do not believe I would 10 have made any such arrangements. I 11 never engaged in a conversation with 12 Dr. Smith about the merits of the case, 13 as alleged by Dr. Smith in his 14 conversation with Ms. O'Hara. I 15 certainly never indicated to Dr. Smith 16 that I thought SM was guilty as sin. I 17 also have no recollection of discussing 18 Dr. Ommaya or Dr. Duhaime with Dr. 19 Smith at the Family Law Conference 20 referenced in paragraph 4 of my 21 affidavit. I do not recall having any 22 other communications with Dr. Smith 23 since I presided over the SM case." 24 Mrs. Mann, in 1996, would the information 25 now provided by Justice Dunn in that affidavit have been

1 relevant to your investigation of DM's complaint? 2 MS. MICHELLE MANN: I believe it would 3 have been. 4 MR. ROBERT CENTA: Why? 5 MS. MICHELLE MANN: Because the -- that 6 meant that Dr. Smith's reply to the College was, in fact, 7 falsely stated in terms of his discussions with Justice 8 Dunn. 9 MR. ROBERT CENTA: Would you have shared 10 Justice Dunn's statements with the Complaints Committee? 11 MS. MICHELLE MANN: Yes. 12 MR. ROBERT CENTA: Ms. Doris, do you 13 think the information provided by Justice Dunn would have 14 been relevant to your investigation? 15 MS. ELIZABETH DORIS: Yes. 16 MR. ROBERT CENTA: And why? 17 MS. ELIZABETH DORIS: Now we have a 18 statement from Justice Dunn that is in dispute with Dr. 19 Smith. 20 MR. ROBERT CENTA: And, Dr. Gerace, as a 21 former co-chair of the Complaints Committee, would you 22 have wanted to have this information when you were 23 considering this file? 24 DR. ROCCO GERACE: Yes. 25 MR. ROBERT CENTA: Why?

1 DR. ROCCO GERACE: Well, this would speak 2 to the credibility of -- of Dr. Smith, if, indeed, he had 3 made a statement that was subsequently found not to be 4 true. 5 MR. ROBERT CENTA: Mrs. Mann, returning 6 to the investigation just before you were -- became 7 involved, Mr. Newport wrote to DM to apologize for the 8 delay and acknowledging that the investigation was 9 dragging on? 10 MS. MICHELLE MANN: Correct. 11 MR. ROBERT CENTA: And from your review 12 of the file, how much activity was there on this 13 investigation between October '92 and October 1995? 14 MS. MICHELLE MANN: Very little, if any. 15 MR. ROBERT CENTA: Can you ex -- 16 MS. MICHELLE MANN: There didn't appear 17 to be any activity. 18 MR. ROBERT CENTA: Can you explain why? 19 MS. MICHELLE MANN: I cannot explain why, 20 no. 21 MR. ROBERT CENTA: And other than this 22 letter, is there any activity until -- from October '95 23 to October '96, when you took over the file? 24 MS. MICHELLE MANN: Not that I can see. 25 MR. ROBERT CENTA: So four (4) years had

1 been past since the complaint was filed, and there -- it 2 had not yet been referred to the Complaints Committee in 3 October of 1996? 4 MS. MICHELLE MANN: That's correct. 5 MR. ROBERT CENTA: Is that normal? 6 MS. MICHELLE MANN: No. 7 MR. ROBERT CENTA: Is that a longer 8 period of time than would be acceptable? 9 MS. MICHELLE MANN: Much longer, yes. 10 MR. ROBERT CENTA: In October of '96, you 11 took over the investigation, and I believe you said that 12 you set up a meeting to meet with DM and his family. 13 MS. MICHELLE MANN: That's correct. 14 MR. ROBERT CENTA: At Tab 28 of Volume I, 15 PFP147877, you'll find a letter that you wrote to DM that 16 is an update that you wrote approximately one (1) year 17 after you took over the file, and you've had an 18 opportunity to review this letter? 19 MS. MICHELLE MANN: Yes. 20 MR. ROBERT CENTA: And it accurately 21 records the steps you took in that year during your 22 investigation. 23 MS. MICHELLE MANN: That's correct. 24 MR. ROBERT CENTA: And -- and the letter 25 indicates that you -- on November the 9th, 1996 you met

1 with the family in Timmins. 2 MS. MICHELLE MANN: Correct. 3 MR. ROBERT CENTA: And the letter records 4 what took place at that meeting? 5 MS. MICHELE MANN: That's correct. 6 MR. ROBERT CENTA: During your 7 discussions with -- with DM on that date, did he 8 distinguish among the group of doctors he'd complained 9 about? 10 MS. MICHELE MANN: He did. DM was more 11 focussed and more concerned with regard to Dr. Smith's 12 involvement with the case more so than he was with the 13 other two (2) physicians, Dr. Driver and Dr. Barker. He 14 did have some concerns about them, but his primary focus 15 was with Dr. Smith. 16 MR. ROBERT CENTA: Given what Doc -- what 17 DM told you about his concerns, what strategy did you 18 begin to develop around responding to the complaint? 19 MS. MICHELE MANN: I felt that the issues 20 involving Drs. Driver and Barker were issues which would 21 be -- could be potentially resolved through some 22 discussion, and Ms. -- DM had been in agreement with that 23 strategy. 24 And we devised a plan to share information 25 contained in our investigation as submitted by DM for

1 their review. So they had an opportunity to go through 2 these documents and then would, subsequently, meet with 3 me and go over the information. 4 And following the meeting with these two 5 (2) physicians, I was going to share the information from 6 the meeting with DM and his family for their 7 consideration to see if they would be amenable to the 8 resolution of those issues, so that they would be 9 separated from the issues involving Dr. Smith which 10 seemed to be more of a concern to them. 11 MR. ROBERT CENTA: And your letter, at 12 the bottom of page 1 and over to page 2, records a 13 meeting that you did have with the other doctors from the 14 Hospital for Sick Children? 15 MS. MICHELE MANN: That's correct. 16 MR. ROBERT CENTA: And were you able to 17 successfully resolve that aspect of DM's complaint? 18 MS. MICHELE MANN: Yes. 19 MR. ROBERT CENTA: Did you and DM discuss 20 Dr. Young, the Chief Coroner of Ontario, at this first 21 meeting? 22 MS. MICHELE MANN: DM had some questions 23 as to some of the activity that had gone on in the 24 Coroner's Office and Dr. Young's involvement with the -- 25 with the case at our meeting, yes.

1 MR. ROBERT CENTA: Did you agree to meet 2 with Dr. Young? 3 MS. MICHELE MANN: I don't recall if I 4 initially had agreed to meet with Dr. Young but it 5 certainly was something I was considering. So if it 6 wasn't discussed at that first meeting, it would have 7 been something I would have discussed with DM following 8 the meeting. 9 MR. ROBERT CENTA: And what did you do to 10 try and answer the questions that DM had with respect to 11 Ms. -- Dr. Young? 12 MS. MICHELE MANN: Well, I had reviewed 13 the entire file and all the information contained in it 14 and had four (4) -- I believe four (4) questions that 15 were of concern; that DM had. It was his questions that 16 he had. He was concerned with respect to Dr. Young's 17 involvement in this matter. So I planned a meeting with 18 Dr. Young in order to discuss these four (4) issues. 19 MR. ROBERT CENTA: If you turn to Tab 18 20 in your binder, PFP152788, are these the notes of your 21 meeting with Dr. Young? 22 MS. MICHELE MANN: Yes, they are. 23 MR. ROBERT CENTA: And it indicates that 24 you met with him on February the 14th, 1997? 25 MS. MICHELE MANN: Correct.

1 MR. ROBERT CENTA: Had you met with Dr. 2 Young prior to this occasion? 3 MS. MICHELE MANN: No, not in a one-on- 4 one meeting with him. No. I may have seen him at the 5 College occasionally but... 6 MR. ROBERT CENTA: Had you ever met with 7 Chief Coroner of Ontario as part of an investigation 8 before? 9 MS. MICHELE MANN: Never. 10 MR. ROBERT CENTA: Where did you meet 11 him? 12 MS. MICHELE MANN: At his office in the 13 Coroner's building. 14 MR. ROBERT CENTA: Was anyone else 15 present during the meeting? 16 MS. MICHELE MANN: No. 17 MR. ROBERT CENTA: Approximately how long 18 did the meeting last? 19 MS. MICHELE MANN: It's hard to recall 20 this long ago, but I would say it was not a brief 21 meeting. I'd say roughly about forty-five (45) minutes, 22 half (1/2) an hour, forty-five (45) minutes. 23 MR. ROBERT CENTA: And -- 24 MS. MICHELE MANN: Possibly even as much 25 as an hour. I don't think quite as long as an hour.

1 MR. ROBERT CENTA: What did you tell Dr. 2 Young was the purpose of your meeting with him? 3 MS. MICHELE MANN: I told him that there 4 were some questions that the complainant had about how 5 his -- Dr. Smith's conduct had been during the -- the -- 6 the investigation of Amber's death. 7 And when I initially met with him then I 8 reviewed with him the -- the fact that this family had 9 practically bankrupted themselves in efforts to defend 10 their daughter; that several witnesses had been called 11 from various locations around the world to testify for 12 the defence, and that these opinions of these witnesses 13 had been completely different from what Dr. Smith's 14 findings had been and his analysis of the case. 15 And I also discussed with Dr. Young the -- 16 Judge Dunn -- Justice Dunn's decision which had also been 17 very critical of the actions of Dr. Smith in the 18 investigation of Amber's death. 19 So all of these issues were discussed with 20 him upfront as a means of putting some context into the 21 meeting before these questions, contained on this 22 document, were actually put to him. 23 MR. ROBERT CENTA: Other than the 24 questions and the answers that you've recorded in your 25 note, do you recall anything -- anything else that Dr.

1 Young said to you during that meeting? 2 MS. MICHELE MANN: I remember that he 3 felt very strongly that SM had killed this child, and I 4 remember being surprised at that comment. It was a very 5 strong assertion that he believed she'd done it, and I 6 was taken a little bit aback by that, given the Judge's 7 decision. 8 MR. ROBERT CENTA: You indicated that you 9 had referenced Justice Dunn's lengthy decision in your -- 10 to Dr. Young? 11 MS. MICHELE MANN: Yes, that's correct. 12 MR. ROBERT CENTA: Do you know whether or 13 not Dr. Young had read Justice Dunn's decision at the 14 time you met with him? 15 MS. MICHELE MANN: I don't know if he'd 16 read it. 17 MR. ROBERT CENTA: Was he aware of the 18 fact of the decision when you met with him? 19 MS. MICHELE MANN: He didn't certainly 20 seem surprised by any of the information I gave him. He 21 didn't ask any further probative questions of me. I 22 certainly got the impression that he -- this was not news 23 to him. 24 MR. ROBERT CENTA: Did he ask you for a 25 copy of the judgment during your meeting?

1 MS. MICHELE MANN: No, he didn't. 2 MR. ROBERT CENTA: Dr. Young was asked 3 some questions about this when he testified on November 4 29th, 2007. And on November 29th, 2007, at page 171 of 5 the transcript, Mr. Sandler asked Dr. Young as follows: 6 "Now, you've indicated to the 7 Commissioner that you [Dr. Young] were 8 unaware of these reasons for judgment 9 and did not read them back in 1991, and 10 indeed, had not read them until this 11 Inquiry commenced, is that right? 12 DR. YOUNG: That's right; sadly but 13 correct. 14 MR. SANDLER: Apart from reading the 15 actual reasons for judgment themselves, 16 did you ever become aware of two (2) 17 facts; first of all, that a number of 18 expert witnesses had testified for the 19 defence in this Timmins' case? 20 DR. YOUNG: No. 21 Was that fact ever -- 22 DR. YOUNG: No. 23 MR. SANDLER: -- come to be known by 24 you? 25 DR. YOUNG: No.

1 MR. SANDLER: And did the fact ever -- 2 ever come to be known, by you, before 3 this Inquiry, apart from the acquittal, 4 that Justice Dunn had been very sharply 5 critical of the Hospital for Sick 6 Children and the methodology that was 7 used in this case? 8 DR. YOUNG: No, the opposite. I mean, 9 as I said, I had the reassurance from 10 Dr. Smith, in fact, that Justice Dunn 11 had changed his mind but never heard 12 critic -- never heard of criticism of 13 either the Hospital for Sick Children 14 or Dr. Smith." 15 Mrs. Mann, how do you react to Dr. Young's 16 testimony? 17 MS. MICHELE MANN: I don't believe it's 18 accurate at all. 19 MR. ROBERT CENTA: Why? 20 MS. MICHELE MANN: Because those facts 21 were discussed with him in the context of my meeting with 22 him in February of '97. We had discussed the witness 23 information, not in fine detail, but that there had been 24 several witnesses -- recognized experts in the field of 25 pathology -- who had disagreed strongly with Dr. Smith's

1 position on the matter and that Justice's Dunn's decision 2 had been quite critical. These were the main reasons why 3 the -- the SM family came to the College in the first 4 place. So he - -they were discussed with him. 5 MR. ROBERT CENTA: And, Mrs. Mann, as 6 your investigation continued, did you become aware that 7 there were discussions at the College with respect to the 8 specific question of the jurisdiction to investigate a 9 complaint against a pathologist acting as agent for the 10 coroner? 11 MS. MICHELE MANN: Yes, I was aware that 12 there were discussions at a higher level on this issue. 13 MR. ROBERT CENTA: If you could turn to 14 Tab 29 of Volume I, PFP145588, this is an email from 15 Howard Maker to Dr. Carlisle regarding the question of 16 jurisdiction. 17 Were you aware of this email at the time? 18 MS. MICHELE MANN: No, I wouldn't have 19 been aware of that. 20 MR. ROBERT CENTA: At Tab 30 of the 21 volume, January 19th, 1998, PFP148251, this is a letter 22 that you wrote? 23 MS. MICHELE MANN: Yes. 24 MR. ROBERT CENTA: And written to coun -- 25 now counsel for Dr. Smith on this file?

1 MS. MICHELE MANN: Correct. 2 MR. ROBERT CENTA: Prior to this date or 3 around January 19th, 1998, were you aware there was any 4 lawyer acting for Dr. Smith in respect to this file? 5 MS. MICHELE MANN: No, I don't believe 6 so. 7 MR. ROBERT CENTA: And, Mrs. Mann, am I 8 correct that the -- DM's complaint finally moved towards 9 the Complaints Committee for its hearing in March of 10 1998? 11 MS. MICHELE MANN: That's correct. 12 MR. ROBERT CENTA: And it met over three 13 (3) days, March 9th to 11, 1998? 14 MS. MICHELE MANN: Correct. 15 MR. ROBERT CENTA: If you could turn to 16 Tab 31 in your binder, which is PFP145565, this is a 17 letter from Dr. Young to you dated March 4, 1998. 18 In this letter, Dr. Young asserts that the 19 College of Physicians and Surgeons has no jurisdiction 20 over complaints against pathologists who are acting under 21 sec -- subsection 28(1) of the Coroner's Act? 22 MS. MICHELE MANN: Mm-hm. 23 MR. ROBERT CENTA: Were you surprised to 24 receive this letter? 25 MS. MICHELE MANN: No. There had been, I

1 think, a series of letters that Dr. Young had sent to the 2 College trying to outline his position with regard to 3 this issue. 4 MR. ROBERT CENTA: And did you understand 5 this letter to be consistent with the position that the 6 Office of the Chief Coroner had taken with respect to the 7 College's jurisdiction to investigate complaints against 8 pathologists? 9 MS. MICHELE MANN: Yes. 10 MR. ROBERT CENTA: Had he expressed -- 11 had Dr. Young expressed his opinion to you when you met 12 with him in February of 1997? 13 MS. MICHELE MANN: In essence, yes. Dr. 14 Young didn't feel that the College had any business 15 investigating his coroners. 16 MR. ROBERT CENTA: And who should 17 investigate his coroners? 18 MS. MICHELE MANN: He felt that the 19 Office of the Chief Coroner should be doing that in the 20 context of the Coroner's Council. 21 MR. ROBERT CENTA: Dr. Gerace, you were 22 the Co-Chair of the Complaint's Committee in March of 23 1998? 24 DR. ROCCO GERACE: That's correct. 25 MR. ROBERT CENTA: If you could look in

1 Volume I, Tab 64, at page 4, which is PFP302856. 2 DR. ROCCO GERACE: I'm sorry, Tab 64? 3 MR. ROBERT CENTA: 64. 4 5 (BRIEF PAUSE) 6 7 MR. ROBERT CENTA: I think the correct 8 document is on the screen, but I fear I've given you a 9 wrong Tab number. It's Volume III, I'm sorry, not in 10 Volume I, in Volume III. But you may not need to turn it 11 up. If you can just look at the screen -- do you 12 recognize that document? 13 DR. ROCCO GERACE: I recognize the format 14 of the document. 15 MR. ROBERT CENTA: And it -- it is an 16 index to -- to some binders? 17 DR. ROCCO GERACE: That's what it appears 18 to be. 19 MR. ROBERT CENTA: Okay. And from our -- 20 we obtained this document from the College of Physicians 21 and Surgeons, and I'm advised that it's the index to the 22 material that was before the Complaint's Committee. 23 Or, at least, it contains part of the 24 material that was before the Complaint's Committee in 25 March of 1998. It appears to have been prepared for a

1 somewhat later purpose. 2 DR. ROCCO GERACE: It alludes to a 3 February -- 4 MR. ROBERT CENTA: Mm-hm. 5 DR. ROCCO GERACE: -- 2000 decision -- 6 MR. ROBERT CENTA: Mm-hm. 7 DR. ROCCO GERACE: -- so... 8 MR. ROBERT CENTA: Well, starting with 9 the Letter of Complaint and Enclosures, what you see as 10 the third line down? 11 DR. ROCCO GERACE: Yes. 12 MR. ROBERT CENTA: And then through to 13 Dr. Smith's comments at the bottom of the page. The 14 index indicates that it contained about twelve hundred 15 (1,200) pages? 16 DR. ROCCO GERACE: Yes. 17 MR. ROBERT CENTA: And is that consistent 18 with your recollection of the volume of material that was 19 placed before you? 20 DR. ROCCO GERACE: I do recollect that it 21 was a large file. 22 MR. ROBERT CENTA: And was twelve hundred 23 (1,200) pages of material -- was that larger than the 24 usual file that would have been put before the 25 Complaint's Committee?

1 DR. ROCCO GERACE: It would be 2 considerably larger than -- than most complaint files. 3 MR. ROBERT CENTA: And you would have 4 read the material before the Complaint's Committee 5 deliberated upon it? 6 DR. ROCCO GERACE: That would have been 7 my practice at the time. 8 MR. ROBERT CENTA: Do you recall at the 9 time, in March of 1998, whether you felt that the 10 investigation had been thorough? 11 DR. ROCCO GERACE: I actually don't have 12 independent recollection of -- of -- other than having -- 13 having really been quite taken by Dr. -- or Justice 14 Dunn's decision. 15 MR. ROBERT CENTA: You recall reading the 16 decision? 17 DR. ROCCO GERACE: I do recall the 18 decision, and I do recall reflecting on the decision. 19 MR. ROBERT CENTA: What was your reaction 20 to it at the time? 21 DR. ROCCO GERACE: I -- I thought it was 22 quite scathing in respect to Dr. Smith's performance both 23 at the time of his performing the autopsy and his 24 testimony. 25 MR. ROBERT CENTA: And do you recall

1 reading the portion of Dr. Smith's response to the 2 College where he made his statements alleging 3 conversations with Justice Dunn mid-trial? 4 DR. ROCCO GERACE: I don't recall that. 5 MR. ROBERT CENTA: And did the 6 Complaint's Committee finally dispose of DM's complaint 7 in March of 1998? 8 DR. ROCCO GERACE: The -- the Complaint's 9 Committee took -- elected not to take jurisdiction over 10 the complaint. 11 MR. ROBERT CENTA: But in -- in March of 12 1998, before finally determining -- 13 DR. ROCCO GERACE: Oh, I'm sorry. 14 MR. ROBERT CENTA: -- did they make a 15 final determination of that in March of 1998? 16 DR. ROCCO GERACE: No. No. 17 MR. ROBERT CENTA: If you could turn in 18 Volume I, to Tab 35, PFP145629. This is a memo that 19 Howard Maker sent -- sent to you and Mr. Walker -- Dr. 20 Walker? 21 DR. ROCCO GERACE: Yes. 22 MR. ROBERT CENTA: And do you recall 23 seeing this memo in 1998? 24 DR. ROCCO GERACE: I don't have an 25 independent recollection right now of seeing that memo.

1 MR. ROBERT CENTA: Do you recall that he 2 drafted a memo that would go from the Complaint's 3 Committee to the Executive Committee seeking advice on 4 the policy question of whether or not the Complaint's 5 Committee should deal with DM's complaint? 6 DR. ROCCO GERACE: I don't have an 7 independent recollection of that fact, but I -- I 8 recognise that from the material that I've read in 9 preparation. 10 MR. ROBERT CENTA: And in this memo Dr. - 11 - Dr. -- or sorry, of Mr. Maker, asks for your feedback? 12 DR. ROCCO GERACE: He does. 13 MR. ROBERT CENTA: And if you turn in 14 that same tab, to the final page in that tab, PFP145638, 15 this is an email that appears to have been sent by you to 16 Mr. Maker, and also to Dr. Walker, on the subject of Dr. 17 Smith, and you had a chance to review this email? 18 DR. ROCCO GERACE: I have. 19 MR. ROBERT CENTA: And this is an email 20 that you would have sent at that time? 21 DR. ROCCO GERACE: Yes. 22 MR. ROBERT CENTA: And turning your 23 attention to the paragraph in the middle of the page, 24 it's says: 25 "In rereading the material and the

1 Coroner's Act, it would seem that we 2 have a responsibility to take on the 3 Smith case. He was practising medicine 4 in his assistance of the coroner, 5 rather than doing coroner's activities. 6 It will be interesting to exec's spin 7 on this." 8 And that reflected your views at the time? 9 DR. ROCCO GERACE: It did. 10 MR. ROBERT CENTA: In considering whether 11 the Complaints Committee should have assumed -- or should 12 have taken on the complaint, is the expertise of the 13 Complaints Committee to deal with a complaint a relevant 14 consideration? 15 DR. ROCCO GERACE: I'm not sure I 16 understand the question. Certainly it would be my view 17 that the Complaints Committee should consider all 18 complaints against physicians, and where the expertise of 19 the Complaints Committee is lacking, there is the 20 opportunity to -- to seek assistance or seek an 21 independent opinion from an expert in the area. 22 MR. ROBERT CENTA: And given your views, 23 as expressed in the email, why did you think it was 24 important to seek the guidance of the Executive Committee 25 on this matter?

1 DR. ROCCO GERACE: And again, I have no 2 independent recollection, and I can only suppose that at 3 the time this seemed to be an issue of discussion around 4 College policy. 5 And the Complaints Committee did not 6 determine College policy and -- and it would appear that 7 the Committee sought the -- the opinion of the Executive 8 Committee to determine if there was policy in this area. 9 MR. ROBERT CENTA: Can I ask you to turn 10 to Tab 36 in Volume I, which is PFP145631. This is a 11 memo dated March 13th, 1998 from Dr. Carlisle to Dr. 12 Bonn, the Registrar. 13 Did you -- do you recall whether or not 14 you saw this email in March of 1998? 15 DR. ROCCO GERACE: I have no 16 recollection. 17 MR. ROBERT CENTA: Okay. In paragraph 2 18 of the memo there's a -- the section I've highlighted up 19 on the screen, "you'll recall the discussion" -- this is 20 Dr. Carlisle writing: 21 "You'll recall the discussion that the 22 Chief Coroner had at the Executive 23 Committee in which we reached an 24 understanding about the College's 25 attitude towards complaints against

1 coroners. You will also recall at that 2 time that there was an explicit 3 understanding about complaints against 4 Crown pathologists. That understanding 5 was that the Chief Coroner understood 6 that in all likelihood, an assertion of 7 lack of jurisdiction on the part of the 8 College in respect of Crown 9 pathologists would fail legally." 10 Did -- do you recall whether or not anyone 11 made you aware of that -- what he describes as an 12 explicit understanding in March of 1998? 13 DR. ROCCO GERACE: I have no 14 recollection. 15 MR. ROBERT CENTA: Down two (2) 16 paragraphs it says: 17 "Jim finds..." 18 Jim, and I believe that's Dr. Young. 19 "...finds himself compelled to give the 20 best appearance he can of trying to 21 protect Crown pathologists because of 22 coroner's in -- concerns in their 23 office, that in the event that they 24 appear not to be willing to protect 25 such people, there will not be anyone

1 who will be willing in some areas of 2 the Province to fulfil the 3 responsibilities. Personally, I feel 4 that is a little stretched, but it's 5 their song and we agreed to give as 6 much deference to it as we could." 7 Do you recall whether or not in March of 8 1998 you were aware that the -- the rationale -- of the 9 rationale that is expressed in this memo that Dr. Young 10 was concerned about being appear -- being -- of giving 11 the appearance of trying to protect pathologists? 12 DR. ROCCO GERACE: I have no independent 13 recollection. My recollection of the discussion is that 14 there are -- there were a variety of venues through which 15 a complaint against a pathologist in this circumstance 16 could be dealt with, in particular, through the 17 Complaints Committee or through the Coroner's Council. 18 I don't -- while I don't recall exactly 19 what was said, it would have been my expectation that 20 both venues had the same ultimate intent, and that was a 21 public interest protection responsibility that both the 22 Office of the Chief Coroner and the College of Physicians 23 and Surgeons would have had at the time. 24 So my understanding is the discussion is: 25 Where would this be best heard? And at the time, the

1 Coroner's Council was made up of a number of external 2 individuals, who would have expertise, who would be able 3 to review the concerns. 4 And so I can only surmise that it was a 5 decision not to duplicate activity but certainly to 6 ensure that concerns were dealt with. 7 MR. ROBERT CENTA: In March -- or sorry, 8 in April of 1998, the Executive Committee passed a 9 motion. This is found at PFP152522, Volume I, Tab 37 at 10 page 2. 11 And this is I believe, Dr. Gerace, a 12 motion in response to the request of the Complaints 13 Committee for some guidance on the policy question? 14 DR. ROCCO GERACE: It would appear so, 15 yes. 16 MR. ROBERT CENTA: And the motion reads 17 as carried: 18 "When a physician acts under the 19 instruction of a coroner and reports 20 back to the coroner, then any complaint 21 received by the College with respect to 22 that physician's action as agent of the 23 Coroner's Office should be referred to 24 the Chief Coroner's Office." 25 And that was the -- the recommendation

1 that came back from Executive Committee? 2 DR. ROCCO GERACE: It would appear so, 3 yes. 4 MR. ROBERT CENTA: Now, was the 5 Complaints Committee bound by that vote of the Executive 6 Committee? 7 DR. ROCCO GERACE: I -- now I would say 8 they would not be bound. Now I would say that the 9 Complaints Committee has an independent responsibility to 10 deal with the complaint. At the time, I can't recall 11 what my perception was. 12 MR. ROBERT CENTA: Do you recall whether 13 or not you agreed with the decision of Complaints 14 Committee as reported back to you through this minute? 15 DR. ROCCO GERACE: I -- I have no 16 independent recollection. 17 MR. ROBERT CENTA: If you turn to Tab 38 18 in your volume, on May 13th this is a decision of the 19 Complaints Committee, PFP148207, dealing with the DM 20 complaint? 21 DR. ROCCO GERACE: Yes. 22 MR. ROBERT CENTA: And you signed this 23 decision? 24 DR. ROCCO GERACE: I did. 25 MR. ROBERT CENTA: If you could turn to

1 page 2 of the Decision, it reads, in the second 2 paragraph: 3 "On the basis of the information 4 provided to the committee by Dr. Smith 5 and Dr. Young, Chief Coroner, the 6 committee accepts that the Chief 7 Coroner retained Dr. Smith to conduct 8 the autopsy on behalf of the coroner. 9 He concluded the neurotrauma suffered 10 by the child was consistent with Shaken 11 Baby Syndrome and with the Chief 12 Coroner discussed the matter with the 13 Crown following which the charge of 14 manslaughter was laid. 15 The committee concludes that..." 16 In the last paragraph: 17 "...committee concludes that Dr. 18 Smith's involvement in this matter was 19 undertaken as an agent of the Chief 20 Coroner's Office. Under the Coroners 21 Act, jurisdiction to deal with 22 complaints against physicians acting as 23 coroners or otherwise, as agents of the 24 Chief Coroner in the performance of 25 those functions, is conferred upon the

1 Chief Coroner. As such, this committee 2 has no jurisdiction to take any action 3 in this matter." 4 And that was the decision of the 5 Complaints Committee at that time? 6 DR. ROCCO GERACE: That's correct. 7 MR. ROBERT CENTA: And do you have any 8 independent recollection of how the Complaints Committee 9 reached that decision? 10 DR. ROCCO GERACE: None. None. 11 MR. ROBERT CENTA: As we know, subsequent 12 to this decision, Dr. Gerace, DM pursued an appeal to 13 HPARB? 14 DR. ROCCO GERACE: Yes. 15 MR. ROBERT CENTA: And what is HPARB? 16 DR. ROCCO GERACE: The Health Professions 17 Appeal and Review Board. It's a lay appeal board that 18 has jurisdiction over dealing with certain complaint 19 matters heard at health colleges. 20 MR. ROBERT CENTA: And we'll come to what 21 the decision -- their decision in that appeal -- somewhat 22 later. 23 Mrs. Mann, if you could look at Tab 39, 24 PFP144835. 25 MS. MICHELE MANN: Yes.

1 MR. ROBERT CENTA: This is a letter from 2 Maurice Gagnon making a complaint to the College about 3 Dr. Smith. 4 MS. MICHELE MANN: That's correct. 5 MR. ROBERT CENTA: Were you assigned 6 carriage of this matter? 7 MS. MICHELE MANN: Yes. 8 MR. ROBERT CENTA: Is it fair to say that 9 this complaint focussed on Dr. Smith recommending the 10 disinterment of Mr. Gagnon's grandson, Nicholas, and Dr. 11 Smith having brought his son to the disinterment? 12 MS. MICHELE MANN: I think it's fair to 13 represent that the focus of Mr. Gagnon's complaint at 14 this time was that the -- the timing which had been 15 agreed to for the disinterment occurred later than what 16 he had been advised. So he was upset about that because 17 it resulted in some onlookers being present during the 18 course of the disinterment which was upsetting to him. 19 And the second concern was that he noticed 20 during the disinterment that there was a child with Dr. 21 Smith, whom he later identified as a -- as a son of Dr. 22 Smith and he was upset and offended that Dr. Smith had 23 brought his son to the disinterment; those seem to be the 24 two (2) areas of focus of his concern. 25 MR. ROBERT CENTA: If you can turn to Tab

1 40 in Volume I, PFP144831. This is a letter that you 2 wrote to Mr. Gagnon. 3 MS. MICHELE MANN: Correct. 4 MR. ROBERT CENTA: And it indicates that 5 you had a discussion with -- you -- with Mr. Gagnon 6 regarding the complaint. 7 MS. MICHELE MANN: Correct. 8 MR. ROBERT CENTA: And how did that 9 discussion resolve itself? 10 MS. MICHELE MANN: Well, we indicated to 11 him that the best avenue for him to seek redress for his 12 concerns would be through the Coroner's Office and the -- 13 the Coroner's Council, and so it was suggested to him 14 that he may wish to bring his concerns to the Coroner's 15 Office and -- and have them looked into there. 16 Following that discussion he was in 17 agreement with that and I also agreed to forward the 18 materials that he had sent, essentially the letter of 19 complaint, over to the Coroner's Office on his behalf and 20 with his agreement. 21 MR. ROBERT CENTA: In providing that 22 advice to Mr. Gagnon, you were re -- reflecting the 23 policy as passed by the Executive Committee? 24 MS. MICHELE MANN: That's correct. 25 MR. ROBERT CENTA: In your view, was --

1 was Mr. Gagnon satisfied with the resolution that had 2 been reached during your telephone call with him? 3 MS. MICHELE MANN: He appeared to be 4 satisfied with it; he didn't -- I don't recall him having 5 any other issues besides those two (2) issues. 6 MR. ROBERT CENTA: If you can look at Tab 7 44, which is PFP144827. This is a letter dated March 8 9th, 1999 to Mr. Gagnon from Dr. Young, and if you look 9 at the bottom of page 2 of that letter you'll see that 10 your -- you, among others, are copied on the letter. And 11 you received a copy of this letter? 12 MS. MICHELE MANN: I did. 13 MR. ROBERT CENTA: And do you recall 14 reading it at the time? 15 MS. MICHELE MANN: I did. 16 MR. ROBERT CENTA: Did this letter pose 17 any concerns to you? 18 MS. MICHELE MANN: It didn't pose any 19 concerns because it appeared that the two (2) issues that 20 Mr. Gagnon had brought forward to the College and 21 subsequently to the Coroner's Office had been addressed 22 in this letter. 23 MR. ROBERT CENTA: And what, if any, 24 action did you take after that on this particular matter? 25 MS. MICHELE MANN: At this point the file

1 had been closed, so this material -- any material that 2 comes in on a file that's already closed results in the 3 investigator reviewing the material and then insuring 4 that the material is secured into the file, so the file 5 was brought up from storage, the material is added to it, 6 and then sent back down to storage again. 7 MR. ROBERT CENTA: Okay. If you could 8 look at Volume -- in Volume I, Tab 46, PFP144824. This 9 is a letter dated November 30th, 1999 from Mr. Gagnon to 10 the College of Physicians and Surgeons. 11 MS. MICHELE MANN: Correct. 12 MR. ROBERT CENTA: Were you assigned to 13 deal with this letter? 14 MS. MICHELE MANN: I don't recall being 15 re -- assigned to this. I do notice in the top right 16 hand corner that there is a file number there with my 17 initials after it, which would indicate that initially 18 this may have been thought to go into the -- the file 19 which had been closed, so I'm not certain where it went. 20 I don't recall seeing it and I don't 21 recall having any involvement with Mr. Gagnon after this 22 point. 23 MR. ROBERT CENTA: In the middle of the 24 first page of that document Mr. Gagnon writes: 25 "On February 17th, 1999 I filed yet

1 another complaint against Dr. Charles 2 R. Smith, this time with the Ontario 3 Coroner's Council. According to the 4 Coroner's Act, the function of the 5 Coroner's Council is [ quote] 'to 6 receive complaints respecting the 7 misbehaviour, or incompetence of, or 8 the neglect of duty by coroners.' [end 9 quote] 10 However, I soon learned that the Harris 11 Administration had, like the Police 12 Complaint Board, abolished the 13 Coroner's Council on or about February 14 1, 1999. My complaint was given to Dr. 15 Young, the Chief Coroner, for his 16 review and disposition." 17 And then over the page onto page 2, the 18 third last paragraph, Mr. Gagnon writes: 19 "I would suggest that the College has 20 unwarily, with the elimination of the 21 Coroner's Council, inherited the 22 responsibility or jurisdiction to 23 handle complaints against pathologists 24 such as Dr. Smith." 25 And Mrs. Mann, is fair to say that the --

1 the -- Mr. Gagnon here is asking whether or not the 2 College, in light of the circumstances that he has set 3 out, will consider this complaint? 4 MS. MICHELE MANN: I think that's a fair 5 representation, yes. 6 MR. ROBERT CENTA: On January the 10th, 7 2000, Mr. Gagnon wrote to the College, and this is -- if 8 you look at PFP -- or sorry, your Tab 49, PFP145296, this 9 is Mr. Gagnon providing the College with additional 10 information, and in this letter he included his complaint 11 from February 17th, 1999. And that complaint is found in 12 Volume I at Tab 43. And, Registrar, if you can call up 13 PFP133637, and -- 133637, and please turn -- or please go 14 to page 15 in that document. 15 And Mr. Gagnon wrote under the heading," 16 President, Crown and SM": 17 "If nothing else, Dr. Smith is 18 consistent. The negligence, 19 recklessness and arrogance so evident 20 in Nicholas's case are a mirror image 21 of the SM case in Timmins. This case 22 was heard by Judge Dunn in 1989/90. I 23 will later quote from Judge Dunn's 24 Reasons for Judgement dated May 24, 25 1991."

1 And he then goes on to describe the SM 2 Case, and then over the page onto page 16 he sets out a 3 series of lengthy quotes from the judgment of -- of 4 Justice Dunn. And this material is provided to the 5 College in support of Mr. Gagnon's request that the 6 College assume jurisdiction over his complaint, correct? 7 MS. MICHELE MANN: Correct. 8 MR. ROBERT CENTA: Okay. Just to step 9 back a bit, on December 17th, 1999, so before Mr. Gagnon 10 provided his complaint, if you look at Tab 47 you'll see 11 that Dr. Young wrote to Dr. Bonn, then the Registrar of 12 the College, and he is responding in this letter to Mr. 13 Gagnon's letter to the College asking them to look into 14 his complaint. 15 And if you look at the first paragraph, 16 Dr. Young writes: 17 "I recently received a faxed copy of 18 the letter sent to you by Mr. Gagnon 19 regarding the death of his grandson 20 Nicholas, and his complaint concerning 21 the medicolegal opinions of Dr. Charles 22 Smith. In reviewing the letter I 23 recognized that I had neglected to send 24 you a copy of my reply to Mr. Gagnon in 25 regards to his February 17th, 1999

1 complaint." 2 And if you turn over the page Dr. Young 3 writes in the last sentence: 4 "I took the concerns of Mr. Gagnon very 5 seriously, and based upon -- based on 6 the information available to me, stand 7 by my conclusions." 8 You see that written there? 9 MS. MICHELE MANN: I do. 10 MR. ROBERT CENTA: And Ms. -- Dr. Young 11 with that letter attached his letter dated May 6th, 1999, 12 and you'll find that at your Tab 45, PFP133657. This is 13 Dr. Young's response to Mr. Gagnon's February complaint. 14 He writes in the first paragraph: 15 "This is in regard to your letter and 16 the brief that you submit on February 17 17, 1999, complaining of the actions of 18 Dr. Smith." 19 Last sentence of that paragraph: 20 "I have read your brief in detail, and 21 considered it very carefully." 22 And if you turn over the page to the top 23 of page 2, Dr. Young wrote: 24 "I met with Dr. Smith and discussed the 25 issues raised in your brief in

1 considerable detail. He has been given 2 a copy of your brief prior to the 3 meeting and was therefore familiar with 4 it." 5 And finally at page 3 Dr. Young wrote: 6 "I hope that you accept this office has 7 taken your complaint very seriously." 8 And along with that letter, Dr. Young has 9 provided Mr. Gagnon with some information about changes 10 that had been made at the Office of the Chief Coroner. 11 Now, Mrs. Mann, as an investigator, if you 12 are assigned a complaint to investigate, how much of that 13 written complaint would you read? 14 MS. MICHELE MANN: Absolutely everything. 15 MR. ROBERT CENTA: And why is that 16 important? 17 MS. MICHELE MANN: Because it's important 18 to get a full flavour of what the details of the 19 complaint for are, and in order that you can take plans 20 to undertake your -- your plan as to how you are going 21 to investigate. 22 MR. ROBERT CENTA: Are all parts of the 23 complaint relevant to your investigation at the first -- 24 at the first step? 25 MS. MICHELE MANN: Well it may be that

1 not everything is relevant, but you can't know it's 2 relevant unless you've read through everything. And in 3 order to be thorough and to -- fair to all parties, you 4 need to read everything. So we -- I always would read 5 the letter of complaint and any attachments that would be 6 submitted by a complainant in an investigation. 7 MR. ROBERT CENTA: Part of your duties at 8 the College involve supervising other investigators, 9 correct? 10 MS. MICHELE MANN: That's correct. 11 MR. ROBERT CENTA: If an investigator 12 that you worked with read only part of a complaint, would 13 you consider that to be acceptable? 14 MS. MICHELE MANN: No, I would not. 15 MR. ROBERT CENTA: And in your view, are 16 -- are the passages set out in Mr. Gagnon's complaint, 17 that deal with Justice Dunn's criticisms of Dr. Smith in 18 the SM Case, potentially relevant to Mr. Gagnon's 19 complaints about Dr. Smith? 20 MS. MICHELE MANN: I think potentially 21 they are, yes. 22 MR. ROBERT CENTA: Mrs. Mann, Dr. Young 23 testified about this matter on November 29th, 2007, at 24 page 175 to 176 of the transcript. Commission Counsel, 25 Mr. Sandler, asked -- asked Dr. Young some questions

1 starting at line 7, and he's asking about Mr. Gagnon's 2 February complaint. 3 Dr. Young wrote: 4 "I saw the report from Mr. Gagnon, and 5 I believe I corresponded back to him 6 saying that I had read the complaint 7 and considered the complaint. I have 8 absolutely no memory of having read 9 this part..." 10 And by "this part", he's referring to the 11 excepts from Justice Dunn's reasons. 12 MS. MICHELE MANN: Correct. 13 MR. ROBERT CENTA: 14 "...and I suspect strongly that the 15 reason is that I probably didn't read 16 that part. And the reason that I 17 wouldn't read that part, I believe, is 18 that a complaint about a coroner is a 19 complaint about a particular case. 20 It's not a complaint that you can start 21 quoting all kinds of other cases. 22 We've had many, many experiences; some 23 where families from one (1) inquest 24 want standing in the next inquest -- it 25 sounds like it's similar. And all you

1 can do is mess facts together that -- 2 from one (1) case to another that are 3 very often misquoted. 4 So I regret, I regret deeply, that I 5 didn't read this. It didn't register, 6 and it didn't signal something in me. 7 But I don't think I read it because I 8 believe that when I was going through - 9 - often people do this when they submit 10 letters to the Chief Coroner, they mix 11 a whole bunch of things in. 12 And that's not the way they can be 13 adjudicated, and that's not the way I 14 consider them. So I very likely 15 stopped reading at that point 'cause I 16 have absolutely no recollection. I 17 think it would be fair to say -- 18 dumbfounded -- in your office when you 19 showed me the judgment and referred to 20 it the first time. 21 So on a number of occasions I had 22 opportunities to find out about it. 23 None of them struck with me, and I 24 regret it deeply, but I can't go back 25 and change history."

1 Then Mr. Sandler says: 2 "All right. So just to be clear there, 3 I would suggest to you there was 4 nothing more that Mr. Gagnon could 5 possibly have done to bring to the 6 attention of the Chief Coroner of the 7 Province the concerns that had been 8 raised by Justice Dunn and by himself 9 and the parallels between the SM case 10 and the Nicholas case. Isn't that 11 fair? 12 He's the only one that did it, but he 13 is the one that did it and I missed it. 14 As I say, I think the reason for that, 15 but I'm not saying, you know, in the 16 clear light of day what he says is 17 astoundingly accurate and I've 18 explained why I wouldn't have done it. 19 And I regret that I didn't, but I 20 didn't hear from anyone else either." 21 Now, Mrs. Mann, based on your description 22 of your -- your recollection of the meeting with Dr. 23 Young, do you agree with Dr. Young's statement that no 24 one (1) else brought the fact of Justice Dunn's decision 25 to his attention?

1 MS. MICHELE MANN: Absolutely not. 2 MR. ROBERT CENTA: And would you -- would 3 you accept the approach of reading only part of a 4 complaint from one (1) of your investigators at the 5 College? 6 MS. MICHELE MANN: I would not. 7 MR. ROBERT CENTA: If you turn it to Tab 8 50, January 17th, 1999, the College declined to deal with 9 Mr. Gagnon complaint. This is PFP144806, Volume I, Tab 10 50. 11 And the College wrote to Mr. Gagnon: 12 "I am now taking time to carefully 13 review the file with regard to your 14 correspondence in which you raise 15 concerns over the conduct of Dr. Smith 16 in his capacity as a forensic 17 pathologist for the Office of the Chief 18 Coroner. 19 In addition, I have reviewed 20 correspondence received from Dr. Young. 21 The Executive Committee of the College 22 of Physicians and Surgeons has 23 determined that our policy in such 24 matters where a physician acts under 25 the instruction of a coroner and

1 reports back to the coroner is that any 2 concern received by the College with 3 respect to that physician's actions as 4 the agent of the Coroner's Office 5 should be referred to the Chief 6 Coroner's Office for disposition. 7 Our Provincial Government has placed 8 responsibility for the administration 9 of the function of the Coroner's Office 10 in the hands of Dr. Young, Chief 11 Coroner. 12 Our view of this matter has indicated 13 that Dr. Young, in his capacity as the 14 Chief Coroner, has addressed the 15 concerns that you have raised and acted 16 appropriately." 17 Dr. Gerace, you weren't the Registrar at 18 the time, but having read this letter, in your opinion is 19 the College relying on the investigation conducted by Dr. 20 Young in making its decision as to how to deal with this 21 complaint? 22 DR. ROCCO GERACE: It would appear that 23 that was the case. 24 MR. ROBERT CENTA: And ultimately, Mr. 25 Gagnon disputed the CPSO's determination that the -- of

1 the CPSO's decision not to deal with the complaint. 2 If you look at Tab 52, Mrs. Mann, you see 3 Mr. Gagnon this time is dissatisfied with the Decision of 4 the College to defer jurisdiction. 5 MS. MICHELE MANN: Correct. 6 MR. ROBERT CENTA: And that's different 7 from the first time that you had dealt with Mr. Gagnon -- 8 MS. MICHELE MANN: That's correct. 9 MR. ROBERT CENTA: -- on this matter. 10 MS. MICHELE MANN: Mm-hm. 11 12 (BRIEF PAUSE) 13 14 MR. ROBERT CENTA: Now, Dr. Gerace, we, 15 some time ago, spoke about the Complaints Committee's 16 decision to decline jurisdiction over DM's complaint. 17 DR. ROCCO GERACE: That's correct. 18 MR. ROBERT CENTA: And as we discussed, 19 DM appealed that decision to HPARB. If you look at Tab 20 54 of Volume I, PFP145923, this is the decision of HPARB 21 in that matter. And -- and the first page indicates, 22 Mrs. Mann, that you were present at the hearing. 23 MS. MICHELE MANN: Yes, that's correct. 24 MR. ROBERT CENTA: Do you recall anything 25 about the hearing?

1 MS. MICHELE MANN: Not a lot, no. 2 MR. ROBERT CENTA: And over on page 6 of 3 the HPARB decision, they overturn the decision of the 4 Complaints Committee and find that: 5 "While there may be overlap with regard 6 to Dr. Smith's accountability to both 7 the Coroner's Office and the College, 8 the involvement of the Coroner's Office 9 does not displace the College's 10 responsibility to govern its members. 11 The Committee must, in some manner, 12 determine if any action is warranted by 13 the College as a result of the conduct 14 and actions of the member complained 15 against. 16 As the Committee declined to make such 17 a determination, the Board finds that 18 the Committee's decision -- finds the 19 Committee's decision to be 20 unreasonable." 21 And then under "Disposition": 22 "For all of the reasons given and 23 pursuant to sections 35(1) and 26(2) of 24 the code, the board returns this matter 25 to the Committee and requires it to

1 address the complaint filed by DM." 2 And, Dr. Gerace, were you aware that -- of 3 the HPARB decision when it was made? 4 DR. ROCCO GERACE: I have a recollection 5 that -- that the decision was returned with the direction 6 that it be investigated by the College. 7 MR. ROBERT CENTA: And from that point 8 forward, has the College dealt with complaints against 9 pathologists and coroners in the fashion articulated by 10 HPARB? 11 DR. ROCCO GERACE: The College has dealt 12 with complaints and has taken jurisdiction of complaints, 13 both against coroners and against pathologists, yes. 14 MR. ROBERT CENTA: Now, the -- the HPARB 15 directed the College to confirm the scope of the 16 complaint. Mrs. Mann, were these files returned to you 17 at this point? 18 MS. MICHELE MANN: They were returned to 19 the College for further investigation, yes. They weren't 20 returned directly to me. 21 MR. ROBERT CENTA: And, Ms. Doris, they 22 were -- as I understand it, you were assigned to 23 conducting further investigation into DM's complaint. 24 MS. ELIZABETH DORIS: Correct. 25 MR. ROBERT CENTA: And as directed by

1 HPARB, your first job was to confirm the scope of the 2 complaints. 3 MS. ELIZABETH DORIS: Correct. Correct. 4 MR. ROBERT CENTA: And how did you go 5 about doing that? 6 MS. ELIZABETH DORIS: First, I reviewed 7 the files in detail, and then I contacted DM for the 8 purpose of introducing myself and for the purpose of 9 clarifying his concerns. 10 MR. ROBERT CENTA: And am I correct that 11 you were also in contact with Mr. Gagnon at this time? 12 MS. ELIZABETH DORIS: I believe it was 13 during this time. 14 MR. ROBERT CENTA: And the process by 15 which you would attempt to firm the complaints up or 16 confirm the scope of the complaints, did you summarize 17 the concerns that they expressed to you -- the 18 complainants expressed to you in writing? Did you send 19 them to them in writing? 20 MS. ELIZABETH DORIS: Yes. 21 MR. ROBERT CENTA: And this was an 22 attempt to understand the contours of the complaint? 23 MS. ELIZABETH DORIS: Yes. 24 MR. ROBERT CENTA: And it was then your 25 responsibility to provide Dr. Smith with letters

1 outlining the content of the complaints. 2 MS. ELIZABETH DORIS: Correct. 3 MR. ROBERT CENTA: And if you look at Tab 4 59 of your binder, PFP145051, this is your letter to Dr. 5 Smith, care of his counsel, clarifying Mr. Gagnon's 6 concerns? 7 MS. ELIZABETH DORIS: Yes, it is. 8 MR. ROBERT CENTA: And am I correct that 9 having done this, this -- the -- the complaints, as 10 articulated in this letter, form the boundaries of the 11 investigation that you are then going to conduct? 12 MS. ELIZABETH DORIS: That's correct. 13 MR. ROBERT CENTA: And it is to these 14 concerns that Dr. Smith is requested to reply. 15 MS. ELIZABETH DORIS: That's correct. 16 MR. ROBERT CENTA: And that -- and -- and 17 unless these are amended, that is the -- the basis of the 18 investigation. 19 MS. ELIZABETH DORIS: Correct. 20 MR. ROBERT CENTA: Shortly thereafter, if 21 we look -- if you look at Tab 64 of your -- of your 22 binder, you'll see that Mr. Gagnon wrote to you in 23 January 26th of 2001. PFP145031, and in this letter, Mr. 24 Gagnon is bringing to your attention the fact that the 25 Crown had decided to withdraw charges in two (2) other

1 criminal matters involving Dr. Smith, correct? 2 MS. ELIZABETH DORIS: Correct. 3 MR. ROBERT CENTA: And those matters were 4 involving Louise Reynolds, and Maureen, who for the 5 purpose of the Inquiry refer to as Tyrell's caregiver. 6 What, if anything, did you do with this information? 7 MS. ELIZABETH DORIS: I recall at the 8 time reading a letter that was provided by, I believe his 9 name was Bradley Grass (phonetic). I read that letter 10 that discussed the Louise Reynold's issue. 11 There was a follow-up letter to Mr. Grass 12 indicating if he wished this matter before the College 13 that he needed to contact Ms. Reynolds to provide the 14 complaint directly to the College. 15 In addition to that I remember myself 16 attempting to contact, to locate Ms. Reynolds, and was 17 unable to do that. 18 MR. ROBERT CENTA: And did -- other than 19 what you've described, did receiving this information 20 affect your investigation in any other way? 21 MS. ELIZABETH DORIS: It did not. 22 MR. ROBERT CENTA: And why was that? 23 MS. ELIZABETH DORIS: It didn't relate to 24 the matters before me. It didn't relate -- I was 25 investigating the Gagnon matter and the DM matter.

1 MR. ROBERT CENTA: Now after you had 2 provided Dr. Smith with the outline of the complaints 3 from Mr. Gagnon and DM -- 4 MS. ELIZABETH DORIS: Mm-hm. 5 MR. ROBERT CENTA: -- the College invited 6 Dr. Smith to respond? 7 MS. ELIZABETH DORIS: Correct. 8 MR. ROBERT CENTA: And if you look at Tab 9 66 of your Volume Number I, which is PFP145156, this is a 10 letter addressed to you from Dr. Smith responding to Mr. 11 Gagnon's complaint? 12 MS. ELIZABETH DORIS: Correct. 13 MR. ROBERT CENTA: And is it the practice 14 at the College to then provide the response of the 15 respondent to the complainant for consideration? 16 MS. ELIZABETH DORIS: Yes, it is. 17 MR. ROBERT CENTA: And you did that in 18 this case? 19 MS. ELIZABETH DORIS: I did. 20 MR. ROBERT CENTA: And you invited Mr. 21 Gagnon to respond? 22 MS. ELIZABETH DORIS: Correct. 23 MR. ROBERT CENTA: And I'm going to -- 24 without going through it, this -- this process went on on 25 a number of occasions, correct?

1 MS. ELIZABETH DORIS: Correct. 2 MR. ROBERT CENTA: And, Commissioner, 3 without turning them all up, I can advise that Mr. Gagnon 4 replied to Dr. Smith's response on March 12th, 2001, and 5 that's PFP145375. 6 Dr. Smith responded to Mr. Gagnon's reply 7 on April 20th, 2001, which is PFP145395. On May 5th, 8 2001, Mr. Gagnon replied to the last letter from Dr. 9 Smith, PFP145398, and on June 20th, Mr. Gagnon added 10 additional information to that reply. 11 And that's found at PFP145001. And am I 12 correct that this is a -- this process is not unusual, 13 that there will be letters traded back and forth? 14 MS. ELIZABETH DORIS: No, that is not 15 unusual. 16 MR. ROBERT CENTA: But it does add to the 17 volume of material in the complaint? 18 MS. ELIZABETH DORIS: Yes, it does. 19 MR. ROBERT CENTA: And the same process 20 took place with respect to Mr. -- to the DM complaint, is 21 that correct? 22 MS. ELIZABETH DORIS: Yes, it did. 23 MR. ROBERT CENTA: And, Commissioner, I 24 can advise that Dr. Smith responded to the DM complaint 25 at Tab 67 of your binder, PFP146324. DM replied to that

1 response on March 13th, PFP146332. 2 On April 20th, Dr. Smith responded to the 3 reply of DM at PFP146337. And on May 16th, 2001, DM 4 provided a further reply to that document. Now we've 5 talked about DM's complaint, Ms. Doris, and Mr. Gagnon's 6 complaint. 7 You were eventually were assigned a third 8 complaint involving Dr. Smith, is that correct? 9 MS. ELIZABETH DORIS: Yes. 10 MR. ROBERT CENTA: And who made that 11 complaint? 12 MS. ELIZABETH DORIS: Ms. Waudby. 13 MR. ROBERT CENTA: If you look at Tab 77 14 of your binder, PFP146426, -- 15 MS. ELIZABETH DORIS: Sorry, could you 16 repeat the Tab? 17 MR. ROBERT CENTA: Tab 77. 18 MS. ELIZABETH DORIS: Thank you. 19 20 (BRIEF PAUSE) 21 22 MR. ROBERT CENTA: And this is a letter 23 from Ms. Waudby? 24 MS. ELIZABETH DORIS: Yes, it is. 25 MR. ROBERT CENTA: And was this her first

1 complaint, the first complaint document that she filed at 2 the College? 3 MS. ELIZABETH DORIS: Yes, it was. 4 MR. ROBERT CENTA: At the bottom of page 5 1, Ms. Waudby wrote: 6 "There's evidence, not only noted by 7 the hospital staff, that there were 8 signs of sexual abuse. Dr. Smith did 9 not perform a rape kit. The report 10 filed by the emergency room attending 11 physician clearly states, 'A black 12 curly hair found. Source [question 13 mark]? The hair was lost.'" 14 And Ms. Waudby was writing in respect of 15 the death of her daughter, Jenna, correct? 16 MS. ELIZABETH DORIS: Correct. 17 MR. ROBERT CENTA: And the issue that Ms. 18 Waudby raises of the -- of the hair, was that a -- was 19 that a feature of this investigation? 20 MS. ELIZABETH DORIS: It included the 21 investigation. Yes, it did. 22 MR. ROBERT CENTA: The investigation 23 included looking into circumstances around the hair? 24 MS. ELIZABETH DORIS: Yes, it did. 25 MR. ROBERT CENTA: And for the purpose of

1 clarifying Ms. Waudby's concerns, as a investigator what 2 did you do? 3 MS. ELIZABETH DORIS: Reviewed the letter 4 of complaint in detail and then placed a call to Ms. 5 Waudby for the purpose of introducing myself, reviewing 6 investigative process, and I also asked whether I could 7 meet with her to discuss the specific areas of concern. 8 MR. ROBERT CENTA: If you look at Tab 83 9 of Volume I, PFP147214, do you recognize that document at 10 Tab 80 -- 83? 11 MS. ELIZABETH DORIS: Yes, I do. 12 MR. ROBERT CENTA: And this is a note of 13 your conversation with Ms. -- with Ms. Waudby? 14 MS. ELIZABETH DORIS: Yes, it is. 15 MR. ROBERT CENTA: Did you in fact meet 16 with her? 17 MS. ELIZABETH DORIS: Yes. 18 MR. ROBERT CENTA: If you look at Tab 84, 19 PFP147208, these are the notes of that interview? 20 MS. ELIZABETH DORIS: Yes. 21 MR. ROBERT CENTA: And what do you recall 22 -- did -- first of all, do these notes accurately reflect 23 your recollection of the meeting? 24 MS. ELIZABETH DORIS: Yes. 25 MR. ROBERT CENTA: Now what do you

1 remember being Ms. Waudby's primary concerns? 2 MS. ELIZABETH DORIS: She primarily was 3 concerned about -- she felt that Dr. Smith failed to 4 perform a sexual examination, or as she put it "a rape 5 kit." 6 She thought that he had misdiagnosed the 7 timing of the injuries. She was concerned -- I'm not 8 sure, let's see -- she mentioned the hair. 9 MR. ROBERT CENTA: If you turn to Tab 88 10 of Volume I, PFP147161, this is a letter that you wrote 11 to Dr. Smith about Ms. Waudby's complaint? 12 MS. ELIZABETH DORIS: Yes, it is. 13 MR. ROBERT CENTA: And this is the 14 attempt to -- to describe the areas of concern? 15 MS. ELIZABETH DORIS: Yes. 16 MR. ROBERT CENTA: And you describe that 17 Ms. Waudby was complaining that: 18 "Dr. Smith had failed to provide 19 appropriate care in the management of 20 Jenna and that he failed to ascertain 21 whether or not Jenna was raped. For 22 example, Dr. Smith failed to perform a 23 rape kit and failed to scrape under her 24 nails. 25 That Dr. Smith incorrectly identified

1 the time of Jenna's abdominal blows at 2 twenty-four (24) to forty-eight (48) 3 hours before her death. 4 That Dr. Smith failed to provide an 5 accurate account of Jenna's old 6 injuries despite expert opinion 7 indicating all injuries could have 8 occurred on the evening of January 21. 9 That Dr. Smith testified in court that 10 Jenna's burn marks on her forehead were 11 the result of an accident, whereas Dr. 12 Finkle expert opinion indicated that 13 the burns could not have been 14 accidental and suggested that Ms. 15 Waudby's charge be reduced to 16 manslaughter despite three (3) expert 17 witnesses indicating she could not have 18 murdered her daughter, Jenna." 19 And those are the concerns that -- that 20 were confirmed by Ms. -- by Ms. Waudby? 21 MS. ELIZABETH DORIS: Yes, they were. 22 MR. ROBERT CENTA: Okay. And from that 23 point, this investigation would continue along the same 24 lines as your other investigations? 25 MS. ELIZABETH DORIS: Correct.

1 MR. ROBERT CENTA: You provided the 2 concerns to Dr. Smith -- 3 MS. ELIZABETH DORIS: Yes. 4 MR. ROBERT CENTA: -- and he was invited 5 to respond? 6 MS. ELIZABETH DORIS: Yes. 7 MR. ROBERT CENTA: I'd like you to help 8 us understand the scope and the contours of the three (3) 9 investigations that you conducted on the three (3) 10 complaints involving Dr. Smith. 11 First, if you look at -- if could take 12 Volume III, Tab 65. It's PFP302860. 13 MS. ELIZABETH DORIS: Yes. 14 MR. ROBERT CENTA: And you recognize this 15 form of table of contents? 16 MS. ELIZABETH DORIS: Yes. 17 MR. ROBERT CENTA: And what is it? 18 MS. ELIZABETH DORIS: That looks to be 19 the table of contents that would have been provided to 20 the Complaints Committee. 21 MR. ROBERT CENTA: And as an investigator 22 to the College, at the completion of your investigation 23 you often provide material to the Complaints Committee 24 for it to make its determination on how to proceed? 25 MS. ELIZABETH DORIS: Correct.

1 MR. ROBERT CENTA: This -- does this 2 index then reflect the categories of documents that you 3 would have collected as part of your investigation? 4 MS. ELIZABETH DORIS: Yes. 5 MR. ROBERT CENTA: And if we look at the 6 type of documents that you collected, there are comments 7 from the -- there's the complaint itself and additional 8 material provided to you by the complainant? 9 MS. ELIZABETH DORIS: Yes. 10 MR. ROBERT CENTA: There's responding 11 material provided to you by Dr. Smith? 12 MS. ELIZABETH DORIS: Yes. 13 MR. ROBERT CENTA: There are hospital 14 records from Peterborough Civic Hospital? 15 MS. ELIZABETH DORIS: Yes. 16 MR. ROBERT CENTA: And from the Hospital 17 for Sick Children? 18 MS. ELIZABETH DORIS: Yes. 19 MR. ROBERT CENTA: And a collection of 20 expert opinions? 21 MS. ELIZABETH DORIS: Yes. 22 MR. ROBERT CENTA: And if you look at the 23 bottom of the -- the page, you'll see that there are -- 24 there are approximately two hundred and fifty (250) pages 25 of trial testimony that you collected?

1 MS. ELIZABETH DORIS: Yes. 2 MR. ROBERT CENTA: And over the page, you 3 obtained police reports? 4 MS. ELIZABETH DORIS: Yes. 5 MR. ROBERT CENTA: And witness 6 statements? 7 MS. ELIZABETH DORIS: Yes. 8 MR. ROBERT CENTA: And additional 9 information provided by the Peterborough Police Service? 10 MS. ELIZABETH DORIS: Yes. 11 MR. ROBERT CENTA: And we'll talk about 12 some of the difficulties you -- you may have experienced 13 along the way, but at some point in your investigation 14 you obtained material from the police service, correct? 15 MS. ELIZABETH DORIS: Yes, I did. 16 MR. ROBERT CENTA: And then also we'll -- 17 we'll get to this, material provided to the panel of 18 assessors. And if you could quickly describe, in this 19 case, who are the -- what was the purpose of the panel of 20 assessors? 21 MS. ELIZABETH DORIS: If the Complaints 22 Committee feels that they don't have specific expertise 23 to dispose of this complaint, they will hire an 24 independent opinion. And in this case, they decided to 25 hire a panel of experts.

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1 MR. ROBERT CENTA: And you also collected 2 -- and those experts were to assess the material that you 3 provided to them? 4 MS. ELIZABETH DORIS: Correct. 5 MR. ROBERT CENTA: Okay. And we'll talk 6 about that in more length. You also obtained, it looks 7 like, material from the Chief Coroner's Office and some 8 autopsy photos as well? 9 MS. ELIZABETH DORIS: Yes. 10 MR. ROBERT CENTA: This deals with the 11 documents you collected. 12 MS. ELIZABETH DORIS: Mm-hm. 13 MR. ROBERT CENTA: In another document, 14 you have described some of the investigative steps you 15 took, and some of the conversations that you had. If you 16 look at Volume II, Tab 66, PFP152289. 17 And what is -- what is this document? 18 MS. ELIZABETH DORIS: This is the 19 investigative summary. It would include telephone calls 20 to, telephone calls from. When letters arrived, that 21 sort of thing. 22 MR. ROBERT CENTA: And why did you 23 prepare this document? 24 MS. ELIZABETH DORIS: This, as well, goes 25 to the Complaints Committee.

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1 (BRIEF PAUSE) 2 3 MR. ROBERT CENTA: If you look at page 13 4 of the document, of the Investigative Summary. It 5 indicates it includes letters sent in February of 2003. 6 Is it poss -- is it possible this -- this document was 7 not prepared for the Complaints Committee, but rather for 8 HPARB? 9 MS. ELIZABETH DORIS: That's possib -- it 10 is possible. 11 MR. ROBERT CENTA: Okay. In either 12 event, it sets out the -- the personal contact that you 13 had and the documents that you received during your 14 investigation? 15 MS. ELIZABETH DORIS: Yes. 16 MR. ROBERT CENTA: And over -- from pages 17 1 to 13, that records various conversations and meetings 18 that you would have had? 19 MS. ELIZABETH DORIS: Yes. 20 MR. ROBERT CENTA: Telephone calls with 21 the complainant and with the counsel for Dr. Smith? 22 MS. ELIZABETH DORIS: Yes. 23 MR. ROBERT CENTA: And if you can, 24 relative to other files you'd investigated, how did this 25 file compare in terms of complexity?

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1 MS. ELIZABETH DORIS: The most complex. 2 MR. ROBERT CENTA: And why was that? 3 MS. ELIZABETH DORIS: The seriousness, 4 the volume; the -- the number of areas of concern in each 5 complaint. 6 MR. ROBERT CENTA: And is that also true 7 of the investigations conducted into the DM complaint and 8 Mr. Gagnon's complaint? 9 MS. ELIZABETH DORIS: Yes. 10 MR. ROBERT CENTA: So those three (3) 11 complaints, relative to the other investigations you 12 conduct, were more complex? 13 MS. ELIZABETH DORIS: Yes. 14 MR. ROBERT CENTA: Did they involve more 15 categories of documents then you would normally be 16 collecting? 17 MS. ELIZABETH DORIS: Yes. 18 MR. ROBERT CENTA: And also more volume 19 of documents? 20 MS. ELIZABETH DORIS: Yes. 21 MR. ROBERT CENTA: Was it normal in your 22 investigations -- did you often contact police services 23 to obtain documents? 24 MS. ELIZABETH DORIS: I had not, in any 25 other investigation, attempted to contact a police

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1 department. 2 MR. ROBERT CENTA: Had any other of your 3 investigations involved obtaining court transcripts or 4 transcripts of evidence? 5 MS. ELIZABETH DORIS: I don't believe so. 6 MR. ROBERT CENTA: Okay. When we -- and, 7 Commissioner, there are similar documents prepared, 8 indexes to material collected and contacts, the 9 investigative summary, for both the DM complaint and the 10 Gagnon investigation. 11 Ms. Doris, is -- if I -- without having to 12 turn them up, are they similar in nature? 13 MS. ELIZABETH DORIS: Yes. 14 MR. ROBERT CENTA: And, Commissioner, the 15 -- those documents are found at PFP302856, which is the 16 index of documents provided to the Complaints Committee 17 in the DM investigation. The investigative summary in 18 that case is PFP145906. And the index of documents in 19 the Gagnon investigation is found at PFP145343. 20 Now, Ms. Doris, when I look at the 21 contours of the investigation, did you conduct many 22 witness interviews? 23 MS. ELIZABETH DORIS: With respect to 24 these three (3) complaints? 25 MR. ROBERT CENTA: Yes.

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1 MS. ELIZABETH DORIS: Live interviews? 2 MR. ROBERT CENTA: Live interviews. 3 MS. ELIZABETH DORIS: Not that I recall, 4 no. 5 MR. ROBERT CENTA: And you didn't 6 interview police officers that were involved in the 7 investigations, is that correct? 8 MS. ELIZABETH DORIS: Not live 9 interviews. 10 MR. ROBERT CENTA: It was -- was it 11 primarily a paper review of notes and other memoranda? 12 MS. ELIZABETH DORIS: Yes, and there were 13 telephone calls as well. 14 MR. ROBERT CENTA: Yeah. How does -- in 15 your investigation, what advice are you given about 16 weighing credibility and making credibility 17 determinations through your investigation? 18 MS. ELIZABETH DORIS: I'm not sure if I 19 understand your question. 20 MR. ROBERT CENTA: Is part of your job, 21 as an investigator, to try and make determinations of 22 what actually happened where there are contested versions 23 of the facts or do you simply record information? 24 MS. ELIZABETH DORIS: I -- I record 25 information.

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1 MR. ROBERT CENTA: So it's not part of 2 your job to -- to make determinations about what version 3 of events is more likely to be true, you're simply the 4 fact collector? 5 MS. ELIZABETH DORIS: That's correct. 6 MR. ROBERT CENTA: And you provide those 7 facts to the Complaints Committee -- 8 MS. ELIZABETH DORIS: Correct. 9 MR. ROBERT CENTA: -- for its 10 determination? 11 MS. ELIZABETH DORIS: Yes. 12 MR. ROBERT CENTA: As an investigator, 13 what general powers are you granted under the statute, 14 absent a special appointment from the Registrar or the 15 committee? 16 MS. ELIZABETH DORIS: We can obtain, with 17 the con -- so, for example, there's a complainant and 18 they provide their consent for me to obtain medical 19 records. The physician or the respondent has an 20 opportunity to respond to that and then that material is 21 sent to the Complaints Committee. 22 MR. ROBERT CENTA: If you turn to Volume 23 II, Tab 2, there's a memorandum that you wrote to Dr. 24 Carlisle -- this is PFP144985 -- and it's dated 25 September 4, 2001.

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1 And your memo says: 2 "The Complaints Committee considered 3 the above-noted complaints on July 24, 4 2001." 5 And then this is in respect of the three 6 (3) complaints about Dr. Smith? 7 MS. ELIZABETH DORIS: Mm-hm. 8 MR. ROBERT CENTA: 9 "It has instructed me to forward to you 10 its request that you appoint 11 investigators to conduct an 12 investigation under section 75(c) of 13 the Health Professions Procedural Code 14 in respect thereof." 15 Skipping down a paragraph: 16 "Regarding all three (3) complaints, 17 the Complaints Committee requests an 18 appointment of investigators to include 19 a panel of medical inspectors to obtain 20 further information including 21 conducting any interviews with hospital 22 or other personnel as required to 23 provide an opinion regarding the 24 standard of practice. 25 Regarding File 27860, the Complaints

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1 Committee does not have consent from 2 the legal representative of the 3 deceased patient, Amber; therefore, it 4 has not been able in the course of its 5 investigation to obtain certain records 6 pertaining to Amber, including original 7 radiographs and autopsy photographs. 8 The Committee is requesting the said 9 appointment in order to assist in 10 obtaining the material that it requires 11 to complete the investigation, 12 including the above items." 13 MS. ELIZABETH DORIS: Yes. 14 MR. ROBERT CENTA: And what is the 15 purpose of the Complaints Committee requesting an 16 appointment under section 75(c)? 17 MS. ELIZABETH DORIS: It allows for 18 broader powers. So, for example, if we do not have 19 consent for a medical record, it would allow us to go in 20 and obtain that record without consent. 21 MR. ROBERT CENTA: And until you have the 22 appointment under 75(c), your powers are more limited? 23 MS. ELIZABETH DORIS: Yes. 24 MR. ROBERT CENTA: Am I -- if you turn 25 over the page to page 2, there is an Appointment there of

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1 you and some other individuals signed by the Interim 2 Registrar? Is -- 3 MS. ELIZABETH DORIS: Yes. 4 MR. ROBERT CENTA: And that was your -- 5 that was your section 75 Appointment? 6 MS. ELIZABETH DORIS: That's correct? 7 MR. ROBERT CENTA: Okay. And had you had 8 difficulty in conducting the investigation before 9 September 2001 in obtaining certain materials in respect 10 to these files? 11 MS. ELIZABETH DORIS: I had. 12 MR. ROBERT CENTA: If you'd turn in 13 Volume I to Tab 89, which is PFP147185. This is a letter 14 from Dr. Cairns, the Deputy Chief Coroner for Ontario, 15 writing to you re: Jenna. It says: 16 "Thank you for your letter of August 17 3rd requesting a copy of our reports 18 with regards to the death of Jenna. 19 For your information, at the present 20 time this case has been reactivated and 21 a further investigation is presently 22 underway; therefore, I am unable to 23 furnish you with the requested 24 documents until the investigation is 25 completed. Please be assured that our

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1 reports will be forwarded to you once 2 we have closed the case." 3 And when Dr. Cairns writes that there's an 4 investigation ongoing, what kind of investigation was 5 that? 6 MS. ELIZABETH DORIS: A police 7 investigation. 8 MR. ROBERT CENTA: And would the 9 documents that you were requesting from the Chief 10 Coroner's Office have been of assistance to you during 11 your investigation? 12 MS. ELIZABETH DORIS: It's difficult to 13 say. I don't know what would have been in those records. 14 MR. ROBERT CENTA: And if you turn in 15 Volume II to Tab 1, this is PFP147189, and it's a letter 16 from the Peterborough Police, also in regards to your 17 investigation of the complaint involving Jenna. 18 And the Chief of Police has written: 19 "I am responding to your letter, dated 20 August 3rd, that -- that re -- that 21 requests records pertaining to the 22 above mentioned, Jenna. As per your 23 phone conversation on August 13th, 2001 24 with Detective Constable Charmley, it 25 is the decision of our service that we

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1 will not disclose these records to you 2 at this time. These records are 3 evidence in an ongoing homicide 4 investigation. Detective Constable 5 Charmley has spoken to our local Crown 6 Attorney and Regional Coroner, who 7 concur." 8 And is that another example of having 9 difficulty obtaining some of the records? 10 MS. ELIZABETH DORIS: Yes. 11 MR. ROBERT CENTA: And that was caused by 12 the ongoing police investigation? 13 MS. ELIZABETH DORIS: Yes. 14 MR. ROBERT CENTA: Commissioner, this 15 might be a convenient time to take the morning break. 16 COMMISSIONER STEPHEN GOUDGE: Sure. We 17 will rise, then, until 11:30. 18 19 --- Upon recessing at 11:15 a.m. 20 --- Upon resuming at 11:35 a.m. 21 22 THE REGISTRAR: All rise. Please be 23 seated. 24 COMMISSIONER STEPHEN GOUDGE: Mr. 25 Centa...?

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1 CONTINUED BY MR. ROBERT CENTA: 2 MR. ROBERT CENTA: Thank you, 3 Commissioner. Ms. Doris, as we know, the -- the interim 4 registrar appointed a panel of three (3) assessors to 5 assist the Complaints Committee with the investigation 6 into Dr. Smith? 7 MS. ELIZABETH DORIS: Correct. 8 MR. ROBERT CENTA: And if you turn to 9 Volume III, Tab 9, PFP147943. That's the CV for Dr. 10 Cohle. And Dr. Cohle was the Chair of the Panel of 11 Assessors? 12 MS. ELIZABETH DORIS: Yes, he was. 13 MR. ROBERT CENTA: And if -- on page 2 of 14 his -- of his CV, it indicates that he held the 15 professional position from 1982 to present as a forensic 16 pathologist for Spectrum Health, is that correct? 17 MS. ELIZABETH DORIS: Correct. 18 MR. ROBERT CENTA: And he was from the 19 United States? 20 MS. ELIZABETH DORIS: Yes. 21 MR. ROBERT CENTA: The second member of 22 the panel -- if you turn to Tab 10, PFP147927, Dr. 23 Denmark? MS. ELIZABETH DORIS: Yes. 24 MR. ROBERT CENTA: And Dr. Denmark at the 25 time of the appointment was the Deputy Chief Medical

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1 Examiner in the province of Alberta? 2 MS. ELIZABETH DORIS: Yes, he was. 3 MR. ROBERT CENTA: And he was also an 4 Assistant Clinical Professor in the Department of 5 Pathology? 6 MS. ELIZABETH DORIS: Yes. 7 MR. ROBERT CENTA: Turning to Tab 11, 8 PFP147954. Dr. -- is it Trevenen? 9 MS. ELIZABETH DORIS: Trevenen. 10 MR. ROBERT CENTA: Trevenen -- 11 MS. ELIZABETH DORIS: Mm-hm. 12 MR. ROBERT CENTA: -- was the third 13 member of the panel? 14 MS. ELIZABETH DORIS: Yes. 15 MR. ROBERT CENTA: And Dr. Trevenen, on 16 page 2 of her CV, indicated that she was a pathologist at 17 the Alberta Children's Hospital? 18 MS. ELIZABETH DORIS: Yes. 19 MR. ROBERT CENTA: And had held a number 20 of prior positions in pathology and in the -- as a 21 Director of Laboratories at the Alberta Children's 22 Hospital? 23 MS. ELIZABETH DORIS: Yes. 24 MR. ROBERT CENTA: And do you recall how 25 the College came to locate these three (3) people to sit

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1 on the panel of -- of assessors? 2 MS. ELIZABETH DORIS: I recall Dr. 3 Michael Jewel (phonetic), who is or was the Medical 4 Advisor at the College at the time, writing a letter that 5 was sent to different department heads at various 6 hospitals outlining what was required at the College. 7 And subsequent to that, I received 8 telephone calls, and I would provide them brief summaries 9 of what we needed for the three (3) cases to -- for them 10 to review documents and provide an opinion. We received 11 several, maybe six (6), maybe a few more, CVs, and there 12 was a senior management meeting to determine which of 13 those CVs or which of those people would be selected for 14 the panel. 15 MR. ROBERT CENTA: Do you recall what 16 criteria were used to select the panel members? 17 MS. ELIZABETH DORIS: I recall that they 18 wanted both a forensic pathologist and a pediatric 19 pathologist on the panel because Dr. Smith was practising 20 forensic pathology. 21 MR. ROBERT CENTA: And if you look at -- 22 in Volume II at Tab 11, PFP148421, this is a letter that 23 you wrote to Dr. Cohle on December 21st, 2001? 24 MS. ELIZABETH DORIS: Sorry, could you 25 repeat the tab, please?

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1 MR. ROBERT CENTA: It's Tab 11 in Volume 2 II. And I'll read: 3 "The investigation involves a review of 4 Dr. Smith's practice as an anatomical 5 pathologist. The panel is asked to 6 provide an opinion as to whether the 7 care provided by Dr. Smith meets the 8 standard of practice of the profession. 9 Specifically, please address the 10 following in your report: 11 1. Does the care provided to patients 12 by Dr. Smith meet the standard of 13 practice of the profession? 14 In discussing the standard of practice, 15 please consider what is reasonably 16 expected of a competent practitioner in 17 the member's field of practice. 18 2. Does Dr. Smith's care display a 19 lack of knowledge, skill or judgment or 20 disregard for the welfare of his 21 patients? The deficiency need not be 22 in all of these areas but any one (1) 23 of them. 24 3. Are you of the opinion that Dr. 25 Smith's clinical practice, behaviour or

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1 conduct exposes or is likely to expose 2 his patients to harm or injury. Please 3 notify me immediately if you form this 4 opinion during the drafting of your 5 report." 6 And over the page: 7 "In each case, please make reference to 8 specific patient charts or documents or 9 evidence to support your answer." 10 Ms. Doris, do you recall why the phrase 11 "anatomical pathologist" was used to describe the review 12 of Dr. Smith's practice as opposed to forensic pathology? 13 MS. ELIZABETH DORIS: I cannot recall but 14 it is my understanding that Dr. Smith -- that is his 15 discipline. 16 MR. ROBERT CENTA: Okay. And -- but in 17 the selection of the panel of assessors, the College was 18 interested in ensuring that there was forensic pathology 19 expertise? 20 MS. ELIZABETH DORIS: Correct. 21 MR. ROBERT CENTA: And that was because 22 Dr. Smith's practice also incorporated forensic 23 pathology? 24 MS. ELIZABETH DORIS: Correct. 25 MR. ROBERT CENTA: And will you agree

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1 with me the three (3) complaints -- that the complaint 2 that you were investigating related to the practice of 3 forensic pathology? 4 MS. ELIZABETH DORIS: Yes. 5 MR. ROBERT CENTA: Okay. If you can turn 6 in Volume II to Tab 12, PFP146438, this is Dr. Smith's 7 response to the Waudby complaint. 8 And if you turn to page 3 of that 9 document, Dr. Smith wrote in regard to the sexual abuse 10 examination: 11 "At the time of the post-mortem 12 examination, a sexual abuse examination 13 was performed by me. In this, I was 14 assisted by Dr. Dirk Huyer, the 15 Director of Suspected Child Abuse and 16 Neglect [bracket] (SCAN) program at the 17 Hospital for Sick Children. He and I 18 agree there was no evidence of abuse. 19 Nevertheless, appropriate sampling was 20 undertaken. 21 The police, who are responsible for the 22 submission of evidence in a homicide 23 investigation, chose not to submit this 24 material for analysis. It remained 25 under seal in my care. Following Ms.

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1 Waudby's complaint to the College, I 2 have asked the police investigators to 3 reconsider their decision and they 4 agreed to do so. Subsequently, a 5 member of the Peterborough Police 6 Service obtained the material from me, 7 and he gave it to the Office of the 8 Chief Coroner for safekeeping until a 9 final decision is made on whether it 10 will be examined." 11 Do you recall reading this paragraph at 12 the time you received the letter? 13 MS. ELIZABETH DORIS: Yes, I do. 14 MR. ROBERT CENTA: And do you remember, 15 what was your reaction to it? 16 MS. ELIZABETH DORIS: I recall when he 17 indicated that there was appropriate sampling done, I 18 thought that was vague. 19 MR. ROBERT CENTA: And what did you do, 20 if anything, to follow up on your concerns? 21 MS. ELIZABETH DORIS: I wrote a letter to 22 Dr. Smith. 23 MR. ROBERT CENTA: And if you turn to Tab 24 13 in Volume II, page 2 of that tab, PFP146455, is this 25 the follow-up letter that you wrote?

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1 MS. ELIZABETH DORIS: Yes, it is. 2 MR. ROBERT CENTA: It reads: 3 "Dear Dr. Smith: Thank you for your 4 response dated December 21, 2001. 5 Would you please provide clarification 6 regarding the following: 7 1. One (1) of Ms. Waudby's concerns is 8 that you did not perform a rape kit. 9 You indicated that you performed a 10 sexual abuse examination and took 11 appropriate sampling." 12 And then you ask a series of sub -- 13 follow-up questions to that: 14 "Please explain the difference between 15 a rape kit and a sexual abuse 16 examination. Please indicate what a 17 sexual abuse examination entails and 18 extent of the sexual abuse examination 19 in this case. 20 Please indicate what samples were 21 taken. Did you indicate in the post- 22 mortem report that a sexual abuse 23 examination was performed; if not, 24 why?" 25 And, at some point later, you did receive

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1 a response to this letter? 2 MS. ELIZABETH DORIS: Yes. 3 MR. ROBERT CENTA: And we'll -- we'll get 4 there as we move through the chronology. Was it part of 5 your responsibility to collect and provide to the Panel 6 of Assessors the material that they were going to 7 consider? 8 MS. ELIZABETH DORIS: Yes. 9 MR. ROBERT CENTA: And if you turn in 10 Volume II to Tab 20, this is a letter, although the -- 11 the recipient of the letter has been redacted, I believe 12 this is a letter that you wrote to Dr. Cohle. 13 MS. ELIZABETH DORIS: I believe so, yeah. 14 MR. ROBERT CENTA: And this is in regard 15 to the DM complaint that you were investigating? 16 MS. ELIZABETH DORIS: Yes. 17 MR. ROBERT CENTA: And you ask Dr. Cohle 18 and the members of the panel to consider nine (9) 19 specific questions in relation to the file? 20 MS. ELIZABETH DORIS: Yes. 21 MR. ROBERT CENTA: And if we could -- if 22 you turn in that same document, I believe there should be 23 another document in that tab. No. If we could just look 24 at the screen, if I could get a PFP146372. This is an 25 index titled, "Table of Contents for Panel", and do --

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1 when we were -- when this says, "panel", that -- that 2 refers to the Assessor's Panel? 3 MS. ELIZABETH DORIS: Yes. 4 MR. ROBERT CENTA: So this is the index 5 to the material that you provided to the Panel of 6 Assessors. 7 MS. ELIZABETH DORIS: Correct. 8 MR. ROBERT CENTA: Okay, and it included 9 various responses from the College -- or from -- from the 10 member, and if you turn over the page, Mr. Registrar, a 11 series of witness statements and opinions rendered in the 12 DM case; about a thousand (1,000) pages of material. 13 MS. ELIZABETH DORIS: Correct. 14 MR. ROBERT CENTA: Okay. And you 15 prepared a similar list in respect of the Gagnon 16 complaint -- 17 MS. ELIZABETH DORIS: Yes. 18 MR. ROBERT CENTA: -- collecting the 19 information to provide to the Panel of Assessors. 20 MS. ELIZABETH DORIS: Yes. 21 MR. ROBERT CENTA: Did the Panel 22 Assessors ever ask you for additional information that 23 you hadn't provided to them? 24 MS. ELIZABETH DORIS: I recall in one (1) 25 instance, I believe, it was Dr. Trevenen felt that she

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1 didn't have -- in -- in the Waudby case, she thought that 2 she didn't have some testimony relating to the 3 babysitter, and I believe I went back and -- I indicated 4 that I would go back to my files to see whether I had it, 5 and if it was relevant, I would provide it to her. 6 7 (BRIEF PAUSE) 8 9 MR. ROBERT CENTA: And were you able to 10 provide her with that? 11 MS. ELIZABETH DORIS: I would have to 12 check my records. 13 MR. ROBERT CENTA: Other than that, was 14 the Panel of Assessors satisfied that you had provided 15 them with sufficient information to permit them to answer 16 the questions that you had asked of them? 17 MS. ELIZABETH DORIS: Yes, they were. 18 MR. ROBERT CENTA: Okay. Ms. Doris, I'd 19 like to ask you some questions now about a meeting that 20 you had with Dr. Carlisle in early April of 2002. And if 21 you could turn up vol -- in Volume II, Tab 36, and this 22 is a memo that Dr. Carlisle wrote to you on April 10, 23 2002. 24 MS. ELIZABETH DORIS: Yes. 25 MR. ROBERT CENTA: And does this memo

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1 fairly record your recollection of your meeting with -- 2 with Dr. Carlisle? 3 4 (BRIEF PAUSE) 5 6 MS. ELIZABETH DORIS: Yes. 7 MR. ROBERT CENTA: And what, if anything, 8 do you remember Dr. Carlisle telling you about any views 9 of the Office of the Chief Coroner, in and around April 10 of 2002, with respect to Dr. Smith? 11 MS. ELIZABETH DORIS: What I recall about 12 that meeting was Dr. Carlisle told me that he had had a 13 discussion with Dr. Cairns; that there was some level of 14 frustration at the Coroner's Office. And then Dr. 15 Carlisle and I discussed the recent media around the 16 events. Then he requested -- he wanted to know where the 17 file was -- or where the investigation was, and I 18 provided him with those details. 19 MR. ROBERT CENTA: And did Dr. Carlisle 20 relate to you the -- the contents of his conversation 21 with -- with the Office of the Chief Coroner? 22 MS. ELIZABETH DORIS: Not in detail. I 23 do not recall -- 24 MR. ROBERT CENTA: Do you recall if he 25 told you who he spoke with?

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1 MS. ELIZABETH DORIS: Dr. Cairns. 2 MR. ROBERT CENTA: Dr. Cairns. And do 3 you recall whether or not he shared with you Dr. Cairns' 4 impressions of what was happening, other than a general 5 sense of frustration with Dr. Smith? 6 MS. ELIZABETH DORIS: I do not recall 7 that. 8 MR. ROBERT CENTA: Okay. And, Dr. 9 Gerace, if you turn to, in your Volume II, Tab 37, 10 PFP145664. This is a memo to file from Dr. Carlisle. 11 And I note that if you -- if you turn to page 3, it 12 indicates that the memo to file was blind copied to you? 13 DR. ROCCO GERACE: Yes. 14 MR. ROBERT CENTA: And in April of 2002, 15 what position would you have held at the -- at the 16 College? 17 DR. ROCCO GERACE: I would have been 18 appointed as -- the decision was made to appoint me as 19 Registrar, but would not yet have assumed the position of 20 Registrar. I assumed that position on the 1st of May. 21 MR. ROBERT CENTA: So you were -- you 22 were coming into the Registrar's position? 23 DR. ROCCO GERACE: That's correct. 24 MR. ROBERT CENTA: And before you assumed 25 that position, Dr. Carlisle was acting as the Interim

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1 Registrar? 2 DR. ROCCO GERACE: That's correct. 3 MR. ROBERT CENTA: Do you have any 4 recollection of receiving this memo in April of 2002? 5 DR. ROCCO GERACE: I do not. 6 MR. ROBERT CENTA: Ms. Doris, this memo 7 to file from Dr. Carlisle sets out, in some detail, his 8 conversation with Dr. Cairns. And Dr. Cairns is asked a 9 number of questions about this memo when he -- when he 10 testified. Was this memo ever shared with you? 11 MS. ELIZABETH DORIS: No, it was not. 12 MR. ROBERT CENTA: And if you turn and 13 look at page 3, it says, at the bottom: 14 "This memorandum will be for my record 15 and will not form part of the 16 complaints file." 17 And is it correct that this memo did not 18 make its way into the complaints file? 19 MS. ELIZABETH DORIS: That's correct. 20 MR. ROBERT CENTA: And was not -- would 21 not have been shared with the Complaints Committee? 22 MS. ELIZABETH DORIS: Correct. 23 MR. ROBERT CENTA: And wasn't shared with 24 you as the investigator? 25 MS. ELIZABETH DORIS: Correct.

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1 MR. ROBERT CENTA: And is there 2 information in this memo that you were not aware of at 3 the time you were conducting your investigation? 4 MS. ELIZABETH DORIS: I have since had an 5 opportunity to read it, and when he is discussing the 6 facts of the case, those details were not new to me. 7 MR. ROBERT CENTA: Because you were 8 already aware of them? 9 MS. ELIZABETH DORIS: Correct. 10 MR. ROBERT CENTA: If you had received 11 this memo, would you have -- do you think you would have 12 followed up with Dr. Cairns? This is a hypothetical 13 question, because you didn't have the memo, but would you 14 have followed up with Dr. Cairns to obtain more 15 information? 16 MS. ELIZABETH DORIS: I may have. 17 MR. ROBERT CENTA: And at that time, 18 April of 2002, had the Office of the Chief Coroner 19 provided you with its file? 20 MS. ELIZABETH DORIS: No, they had not. 21 MR. ROBERT CENTA: And -- 22 MS. ELIZABETH DORIS: In a letter, they 23 said they would not provide me with information. 24 MR. ROBERT CENTA: And in that letter, 25 Dr. Cairns said he couldn't provide you with the

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1 information because of the ongoing police investigation? 2 MS. ELIZABETH DORIS: Correct. 3 MR. ROBERT CENTA: But he was -- he did 4 have this conversation with Dr. -- with Dr. Carlisle? 5 MS. ELIZABETH DORIS: Right. 6 MR. ROBERT CENTA: Do you think it would 7 have assisted you in your invest -- investigation had you 8 received this memo in April of 2002? 9 MS. ELIZABETH DORIS: It may have. 10 MR. ROBERT CENTA: Dr. Gerace, the memo 11 indicates at the -- at the bottom of page 3, that the -- 12 it was for the record of the Registrar, and would not 13 form part of the complaints file. You are now the new 14 Registrar, would you consider that practice to be 15 advisable? 16 DR. ROCCO GERACE: I -- I would not 17 consider the practice to be advisable. In fact, that 18 practice would not occur at the present time. 19 MR. ROBERT CENTA: What would happen 20 today? 21 DR. ROCCO GERACE: Certainly, if -- if I 22 received information -- and we have a -- a practice at 23 the College that if information comes to any member of 24 the staff about a member, that the person providing that 25 information is -- is told up front that that information

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1 will be acted on. 2 There are -- there are no confidential 3 documents that are not acted on. So if a -- if a 4 conversation of this sort were to have occurred today, I 5 would -- I would send a note to the relevant individuals 6 outlining the content of that conversation. 7 MR. ROBERT CENTA: And who would the 8 relevant individuals have been in April of 2002 on this 9 file? 10 DR. ROCCO GERACE: In this case, it would 11 have gone to the investigation's department through the - 12 - through the Directors to the Investigator, and 13 ultimately, to the Committee. 14 MR. ROBERT CENTA: Okay. In Volume II, 15 Tab 38, Ms. Doris, PFP146464, -- Tab 38 of Volume II. 16 This is a letter signed by Dr. Smith on April the 11th, 17 2002. And if you look at page 3 of that document, Dr. 18 Smith has ridden -- written below the heading 1C, "Please 19 indicate what samples were taken." 20 And that was the question you had posed to 21 him in your letter? 22 MS. ELIZABETH DORIS: Yes. 23 MR. ROBERT CENTA: He responded: 24 "The only physical evidence that was 25 present was a hair or fibre that was

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1 allegedly noted to have been seen on 2 the lower abdomen at the end of 3 resuscitation at Peterborough Civic 4 Hospital. Even though it was reported 5 to me to be a contaminant, I collected, 6 sealed, and stored it appropriately. I 7 brought this physical evidence to the 8 attention of Police Officer Kirkland, 9 who was at the autopsy in the role of a 10 Forensic Identification Officer and 11 was, therefore, involved in the 12 investigation of Jenna's death. He 13 included it in his photographs of the 14 body, but chose not to accept it or 15 other specimens [bracket] (eg. blood 16 and stomach contents) [closed bracket] 17 that I obtained during the course of 18 the post-mortem examination. Following 19 discussions with the Regional Coroner, 20 Dr. Peter Clark (phonetic), the blood 21 and stomach contents were submitted to 22 the Centre of Forensic Sciences where 23 only the blood was analysed." 24 Do you recall your reaction to reading 25 that portion of Dr. Smith's response?

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1 MS. ELIZABETH DORIS: I don't recall my 2 reaction. 3 MR. ROBERT CENTA: What, if anything, did 4 you do after receiving this response? 5 MS. ELIZABETH DORIS: I contacted the 6 Peterborough Police Department, in particular, the lead 7 investigator, Constable Charmley. 8 MR. ROBERT CENTA: And -- and how did you 9 contact him? 10 MS. ELIZABETH DORIS: Via telephone. 11 MR. ROBERT CENTA: If you look at Tab 42 12 of Volume II, PFP147347. 13 Is this the conversation you're recalling? 14 MS. ELIZABETH DORIS: Yes. 15 MR. ROBERT CENTA: And it's dated May 16 28th, 2002, bullet point 2, Constable Charmley indicated 17 that: 18 "He's discussed the matter with the 19 Chief of Police related to their 20 concerns with respect to Dr. Smith. 21 They're willing to provide us with 22 certain information that will not 23 jeopardize their ongoing 24 investigation." 25 So this represented a change in the

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1 position of the police service? 2 MS. ELIZABETH DORIS: Correct. 3 MR. ROBERT CENTA: And previously, they 4 had not provided you with information? 5 MS. ELIZABETH DORIS: Correct. 6 MR. ROBERT CENTA: And what did you 7 understand was the reason that they had changed their 8 mind? 9 MS. ELIZABETH DORIS: Their concerns with 10 respect to Dr. Smith. 11 MR. ROBERT CENTA: What were those 12 concerns, if you were aware of them? 13 MS. ELIZABETH DORIS: I don't recall 14 specifically what he said in that conversation related to 15 that. 16 MR. ROBERT CENTA: Do you recall whether 17 or not the Peterborough Police were -- was aware of Dr. 18 Smith's response to your question of whether he had taken 19 any samples and what they were? 20 MS. ELIZABETH DORIS: I recall having a 21 conversation with the police department in January of 22 '02, and I contacted them because Dr. Smith had again 23 been vague. He was vague in his sampling so I contacted 24 the police department to ask them what they knew about 25 sampling.

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1 They said they didn't know -- well, we 2 would have to refer to that, but they didn't have any 3 specific information about that -- 4 MR. ROBERT CENTA: Okay. 5 MS. ELIZABETH DORIS: -- and again, said 6 they wouldn't provide me with information. 7 MR. ROBERT CENTA: And you followed up 8 your conversation of May 28th by writing a letter to Dr. 9 -- for -- to Constable Charmley. That's found at Tab 43 10 of the binder, PFP147346. 11 MS. ELIZABETH DORIS: Yes. 12 MR. ROBERT CENTA: And you requested 13 Constable Charmley to provide you with police notes 14 relating to any property Dr. Smith had in his possession, 15 Constable Kirkland's notes, documents that indicated 16 which specimens Dr. Smith had obtained, and indicating 17 which specimens were provided to Constable Kirkland. 18 And am I correct that at Tab 44 of your 19 binder, PFP302823 is the response you received from 20 Detective Constable Charmley? 21 MS. ELIZABETH DORIS: Yes. 22 MR. ROBERT CENTA: And it included that 23 material? 24 MS. ELIZABETH DORIS: Yes. 25 MR. ROBERT CENTA: And with your -- with

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1 the assistance of your counsel, we've attempted to 2 reassemble the material that was attached to this letter, 3 and you've had a chance to flip through it, and -- and to 4 the best of your recollection, this is the material that 5 was provided to you? 6 MS. ELIZABETH DORIS: To the best of my 7 recollection, yes, it is. 8 MR. ROBERT CENTA: Okay. And it deals 9 with the material that was seized during the autopsy -- 10 MS. ELIZABETH DORIS: Yes. 11 MR. ROBERT CENTA: -- by Dr. Smith? 12 MS. ELIZABETH DORIS: Yes. 13 MR. ROBERT CENTA: Did you ever conduct a 14 personal interview of Constable Kirkland? 15 MS. ELIZABETH DORIS: Not a live 16 interview. 17 MR. ROBERT CENTA: Commissioner, 18 yesterday at the inquiry, Mr. Sandler examined Mr. 19 Kirkland, who's now retired from the police service, and 20 at page 39 of the transcript, Mr. Sandler asked: 21 "Did you ever, at any time, during this 22 autopsy refuse to take a sample that 23 was suggested be taken by Dr. Smith? 24 MR. KIRKLAND: No, sir. 25 MR. SANDLER: Did you ever have an

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1 argument over that issue? 2 Mr. KIRKLAND: No. 3 Mr. SANDLER: All right. Would you 4 ever refuse to take a sample that was 5 proposed to be taken by a forensic 6 pathologist? 7 MR. KIRKLAND: No, it would be against 8 all my training, all my experience, my 9 personal ethics, and it wouldn't even 10 make sense. 11 MR. SANDLER: All right. And you say 12 it wouldn't make sense, why is that? 13 Well, it would be just common sense. 14 If there's something there that could 15 possibly be evidence obviously it would 16 be taken. It would have to be taken." 17 And, Ms. Doris, would that information 18 from Constable -- or from Mr. -- now Mr. Kirkland, would 19 that information have been relevant to your investigation 20 into Ms. Waudby's complaint? 21 MS. ELIZABETH DORIS: I had received a 22 statement from Kirkland that indicated something very 23 similar to what you've just outlined. 24 MR. ROBERT CENTA: In your view, did the 25 testimony of yesterday add anything to the material you

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1 had received from the Peterborough Police Service? 2 MS. ELIZABETH DORIS: No. 3 MR. ROBERT CENTA: At one (1) point, 4 during the Panel of Assessor's consider -- or assistance 5 to the Complaints Committee, it was decided that they 6 would interview Dr. Smith. 7 Do you recall that? 8 MS. ELIZABETH DORIS: Yes. 9 MR. ROBERT CENTA: And who would conduct 10 the interview with Dr. Smith? 11 MS. ELIZABETH DORIS: Dr. Cohle. 12 MR. ROBERT CENTA: And if you look at Tab 13 40 -- sorry, Tab 46 in Volume II, am I correct that you 14 provided Dr. Smith with copies of the questions that 15 would be asked? 16 MS. ELIZABETH DORIS: Yes. 17 MR. ROBERT CENTA: And that's set out 18 there at PFP144880? 19 MS. ELIZABETH DORIS: Yes. 20 MR. ROBERT CENTA: And these -- 21 MS. ELIZABETH DORIS: Yes. 22 MR. ROBERT CENTA: And these are the 23 areas of questioning that the Panel would take Dr. Smith 24 through? 25 MS. ELIZABETH DORIS: Yes.

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1 MR. ROBERT CENTA: And if you turn to Tab 2 47, PFP147797, these are notes taken from the interview 3 with Dr. Smith? 4 MS. ELIZABETH DORIS: Correct. 5 MR. ROBERT CENTA: And do you know 6 whether or not these notes were provided to Dr. Smith and 7 his counsel for their review and approval? 8 MS. ELIZABETH DORIS: I do not believe 9 that they were. 10 MR. ROBERT CENTA: Okay. How would you - 11 - do you have a recollection of this meeting? 12 MS. ELIZABETH DORIS: A vague 13 recollection, yes. 14 MR. ROBERT CENTA: If you can be of 15 assistance, what was the -- what was the tone of the 16 meeting? 17 MS. ELIZABETH DORIS: It was collegial. 18 It was professional. 19 MR. ROBERT CENTA: And was it -- what was 20 the format of the meeting? 21 MS. ELIZABETH DORIS: Dr. Cohle would 22 pose the question, and Dr. Smith would answer the 23 question. 24 MR. ROBERT CENTA: And do you recall if 25 Dr. Cohle was showing Dr. Smith documents during the

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1 meeting or was it more of a fluid conversation? 2 MS. ELIZABETH DORIS: More of a fluid 3 conversation. 4 MR. ROBERT CENTA: Okay. And if you look 5 at page 20 of the notes of the interview, PFP147797, page 6 20, you'll see that there are -- the last -- or part way 7 down the page there's a break, and it says -- it looks 8 like there was a discussion of the hair in the Jenna 9 case? 10 MS. ELIZABETH DORIS: Correct. 11 MR. ROBERT CENTA: And it's noted that: 12 "The hair in the Jenna case. Police 13 said it was contaminated and refused to 14 take it. Police Officer Kirkland said 15 it was contaminated, but it was 16 photographed; you can see the hair in 17 the photos. I was happy someone took 18 the envelope last Fall." 19 Do you recall -- do you have any 20 independent recollection, beyond what's recorded in the 21 notes, about the discussion of the Jenna hair in the 22 interview between the Panel of Assessors and Dr. Smith? 23 MS. ELIZABETH DORIS: No. 24 MR. ROBERT CENTA: Okay. Now, if you 25 look at Volume III, I believe it's Tab 61, PFP147327,

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1 this is a letter from you to Dr. Cohle, and there's an 2 indication on it that this letter was hand-delivered. 3 MS. ELIZABETH DORIS: Correct. 4 MR. ROBERT CENTA: And it says: 5 "Dr. Cohle, I received from the 6 Peterborough Police Department a 7 summary of evidence for medical review 8 and notes of Detective Constable 9 Charmley. I am forwarding those to you 10 to assist you in your assessment of Dr. 11 Smith's practice." 12 June 18th was the day of the interview? 13 MS. ELIZABETH DORIS: Correct. 14 MR. ROBERT CENTA: Do you recall whether 15 or not you provided this material to Dr. -- to Dr. Cohle 16 before or after he interviewed Dr. Smith that day? 17 MS. ELIZABETH DORIS: I remember meeting 18 with Dr. Cohle that morning, and I believe that I 19 provided that to him that morning. 20 MR. ROBERT CENTA: And did he have an 21 opportunity to review that statement before he 22 interviewed Dr. Smith? 23 MS. ELIZABETH DORIS: Yes, he would have. 24 MR. ROBERT CENTA: And do you recall 25 whether or not Dr. Cohle raised any of the material that

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1 was provided to him by you from the Peterborough Police 2 Service in his interview with Dr. Smith? 3 MS. ELIZABETH DORIS: Not to my 4 recollection. 5 6 (BRIEF PAUSE) 7 8 MR. ROBERT CENTA: In July of 2002, the 9 Panel of Assessors reported its results, and this is 10 found at Volume II, Tab 51, it's PFP145095, and that's 11 the wrong tab. 12 13 (BRIEF PAUSE) 14 15 MR. ROBERT CENTA: Oh, I think it should 16 be Tab 50, Volume II, Tab 50. 17 MS. ELIZABETH DORIS: Yes. 18 MR. ROBERT CENTA: And this is the report 19 of the Panel of Assessors. 20 MS. ELIZABETH DORIS: Correct. 21 MR. ROBERT CENTA: In your role as the 22 Investigator, did you have any role in the deliberations 23 of the Panel of Assessors over the content of their 24 report? 25 MS. ELIZABETH DORIS: I did not.

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1 MR. ROBERT CENTA: Did they -- they had 2 their deliberations without you present? 3 MS. ELIZABETH DORIS: They would discuss 4 -- we would have teleconferences and they would discuss 5 the matter during the teleconference, and I was at that 6 teleconference. 7 MR. ROBERT CENTA: But they wrote -- they 8 wrote the report? 9 MS. ELIZABETH DORIS: Yes, they did. 10 MR. ROBERT CENTA: And they did that 11 without your input. 12 MS. ELIZABETH DORIS: Yes. 13 MR. ROBERT CENTA: If you turn to -- just 14 to discuss the structure of the report for a minute, 15 there's a -- there's a four (4) page overview that deals 16 with the broad questions that you had posed in your 17 letter of December 21st, is that correct? 18 MS. ELIZABETH DORIS: Yes. 19 MR. ROBERT CENTA: And then appendices 20 that address each of the three (3) individual complaints. 21 MS. ELIZABETH DORIS: Correct. 22 MR. ROBERT CENTA: And in -- on page 2 of 23 PFP145095, the third paragraph from the bottom -- it 24 says: 25 "Regarding the sexual assault

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1 examination of Jenna, Dr. Smith did 2 retrieve a hair from the body which 3 apparently the police refused to submit 4 to the crime lab. To Dr. Smith's 5 credit, he retained that hair and 6 eventually, the police did accept it 7 for examination." 8 Do you see that? 9 MS. ELIZABETH DORIS: Yes. 10 MR. ROBERT CENTA: Do you recall any -- 11 any further discussions around that -- the issue of the 12 hair? 13 MS. ELIZABETH DORIS: I do not. 14 15 (BRIEF PAUSE) 16 17 MR. ROBERT CENTA: After the Panel of 18 Assessors released its report, what happened next to the 19 complaints? 20 MS. ELIZABETH DORIS: Dr. Smith was 21 provided a copy of that for his review. 22 MR. ROBERT CENTA: And am I -- he 23 responded to the -- he provided a response to the report? 24 MS. ELIZABETH DORIS: He did. 25 MR. ROBERT CENTA: And that's at

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1 PFP145084. 2 MS. ELIZABETH DORIS: What's the tab 3 number? 4 MR. ROBERT CENTA: If you just look at it 5 on the screen. 6 MS. ELIZABETH DORIS: Oh, okay. 7 MR. ROBERT CENTA: I'm not going to take 8 you to it in any detail; that's -- that's the response 9 that -- that he provided to -- to the College. 10 MS. ELIZABETH DORIS: Yes. 11 MR. ROBERT CENTA: And after -- that's 12 dated September 12th, 2002, up at the top right-hand 13 corner. 14 MS. ELIZABETH DORIS: Yes. Yes. 15 MR. ROBERT CENTA: Am I correct that from 16 there, the matter was put before the Complaints 17 Committee? 18 MS. ELIZABETH DORIS: Yes. 19 MR. ROBERT CENTA: And are you involved 20 in the deliberations of the Complaints Committee in any 21 way? 22 MS. ELIZABETH DORIS: No. 23 MR. ROBERT CENTA: Are you present during 24 the deliberations of the Complaints Committee? 25 MS. ELIZABETH DORIS: Yes.

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1 MR. ROBERT CENTA: I'm not going to ask 2 you about specific questions about the deliberations of 3 the Complaints Committee -- 4 MS. ELIZABETH DORIS: Mm-hm. 5 MR. ROBERT CENTA: -- but I will ask you 6 about the decisions that they -- they released, briefly. 7 If you look at Volume II, Tab 55, PFP034523, this is the 8 decision of the Complaints Committee in respect of the 9 Maurice Gagnon complaint. 10 MS. ELIZABETH DORIS: Yes, it is. 11 MR. ROBERT CENTA: And am I correct that 12 the Complaints Committee released the three (3) decisions 13 in respect of the -- Mr. Gagnon's complaint, the DM 14 complaint, and Ms. Waudby's complaint at the same time? 15 MS. ELIZABETH DORIS: Yes. 16 MR. ROBERT CENTA: And, in fact, there 17 are elements of the decisions of the Complaints Committee 18 that are common among the three (3) cases? 19 MS. ELIZABETH DORIS: Yes. 20 MR. ROBERT CENTA: If you turn to page 8 21 of that decision, PFP034523, I'm just going to take you 22 through some of the common elements to the decision. 23 MS. ELIZABETH DORIS: Okay. 24 MR. ROBERT CENTA: Among the three (3) 25 decisions. So in each case the Complaints Committee

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1 wrote: 2 "Due to the difficult and specialized 3 nature of this case, the Committee decided 4 to seek the opinion of a trio of 5 independent assessors prior to making a 6 final decision in this matter. A panel 7 consisting of two (2) forensic 8 pathologists and one (1) pediatric 9 pathologist was assembled to review the 10 material in this file. One (1) panel 11 member also conducted an interview with 12 Dr. Smith. 13 In reaching its decisions on this 14 complaint, the Committee has benefited 15 greatly from the analysis and 16 conclusions arrived at by these 17 qualified and experienced assessors." 18 And then in -- in -- in each complaint, 19 they then go -- or in the decision, in respect to each 20 complaint, they then go on to address and provide their 21 analysis with respect to the specific complaints in each 22 case? 23 MS. ELIZABETH DORIS: Correct. 24 MR. ROBERT CENTA: Correct? Another 25 common feature to the three (3) decisions is found at

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1 page 13 of that decision, and here the Complaints 2 Committee is discussing the general findings of the panel 3 of assessors, correct? 4 MS. ELIZABETH DORIS: Correct. 5 MR. ROBERT CENTA: It says: 6 "The review panel assembled by the 7 College concluded that overall Dr. 8 Smith met the standard expected of a 9 pathologist assisting the coroner in a 10 investigation. However, the panel 11 noted a number of deficiencies and 12 omissions in Dr. Smith's approach in 13 this case. Some of these have already 14 been discussed above. In summary, the 15 deficiencies noted by the panel 16 included..." 17 And then in each decision the panel sets 18 out what those deficiencies were, correct? 19 MS. ELIZABETH DORIS: That's right. 20 MR. ROBERT CENTA: And finally, if you 21 can turn over the page to page 14, the final common 22 element among the three (3) decisions is in the 23 disposition and direction: 24 "The Committee acknowledges the expert 25 panel's opinion that Dr. Smith's

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1 overall approach was acceptable. 2 Nevertheless, the Committee is 3 extremely disturbed by the deficiencies 4 in his approach in this case as set out 5 above. Accordingly, the Committee will 6 require Dr. Smith to attend before a 7 panel of the Complaints Committee to be 8 cautioned with respect to those points. 9 The caution, in person, is a serious 10 outcome for members of the medical 11 profession. It is a tangible symbol of 12 the disapproval on ones' peers, and a 13 sharp reminder about the need for 14 improvement in future practice." 15 And then a direction provided: 16 "Dr. Smith is hereby required to attend 17 at the College to be cautioned in this 18 matter." 19 And that was the disposition the 20 Complaints Committee provided in respect to those three 21 (3) complaints? 22 MS. ELIZABETH DORIS: Correct. 23 24 (BRIEF PAUSE) 25

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1 MR. ROBERT CENTA: And, Dr. Gerace, I'll 2 have a few questions for you about that disposition, but 3 I want to follow this path through a little bit 4 procedurally first, and then return to you. 5 Ms. Doris, what did -- did DM accept the 6 decision of the Complaints Committee? 7 MS. ELIZABETH DORIS: He did not. 8 MR. ROBERT CENTA: And what did he do? 9 MS. ELIZABETH DORIS: He appealed to 10 HPARB. 11 MR. ROBERT CENTA: And if you look at Tab 12 61, in Volume II, PFP148103. That is -- that is the -- 13 the notice by which DM commenced his appeal? 14 MS. ELIZABETH DORIS: Correct. 15 MR. ROBERT CENTA: And similarly, did Ms. 16 Waudby file a notice of appeal? 17 MS. ELIZABETH DORIS: Yes, she did. 18 MR. ROBERT CENTA: And if you find that 19 at Tab 62, PFP152371. And that's a letter dated November 20 29, 2002 to the Registrar of HPARB? 21 MS. ELIZABETH DORIS: Yes, it is. 22 MR. ROBERT CENTA: And if you turn over 23 to Tab 63, PFP152374, this is a supplementary notice of 24 appeal, I guess, filed -- or written by Mr. Hauraney to 25 the Registrar, and it says:

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1 "On behalf of Ms. -- [this is 2 PFP152374] on behalf of Ms. Waudby, we 3 wish to request a review of the above 4 referred to matter. Further, it has 5 come to my attention that there is 6 nothing in the report of the Complaints 7 Committee or the College of Physicians 8 and Surgeons report dated October 15, 9 2002, in reference to Dr. Smith holding 10 a pubic hair in his office in an 11 envelope for a period of five (5) years 12 and just revealing this hair after Ms. 13 Waudby had made numerous complaints. 14 We wish to request a review as to why 15 this was not considered in the 16 Committee's investigation. Kindly 17 direct any inquiries or review matters 18 to the office of the writer." 19 Was that a -- that was a focus of Ms. 20 Waudby's appeal? 21 MS. ELIZABETH DORIS: Yes, it appears to 22 be. 23 MR. ROBERT CENTA: And if you turn in 24 Volume II to Tab 68, PFP146400, this is the decision of 25 HPARB --

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1 MS. ELIZABETH DORIS: Yes, it is. 2 MR. ROBERT CENTA: -- in the complaint? 3 And it doesn't appear that you attended the HPARB hearing 4 because -- am I correct, this is after you had gone on 5 mat leave? This is July 31st, 2003. 6 MS. ELIZABETH DORIS: Yes, I was gone. 7 MR. ROBERT CENTA: Okay. And HPARB, at 8 page 4 of the Decision, under the heading "Adequacy of 9 the Investigation," concludes: 10 "The investigation was adequate." 11 And turning over to page 5, it says -- 12 just the second -- the first full paragraph: 13 "The Board was not made aware of any 14 additional information which, had it 15 been acquired, might reasonably be 16 expected to have affected the 17 Committee's decision regarding the 18 complaint. Accordingly, in having 19 reviewed the information in the record, 20 the Board determines that the 21 Committee's investigation was 22 adequate." 23 And I am correct that, in your view, the 24 evidence that Mr. Kirkland provided yesterday to the 25 Commissioner, was consistent with documents that had been

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1 provided to the Panel of Assessors and the Complaints 2 Committee? 3 MS. ELIZABETH DORIS: Yes. 4 MR. ROBERT CENTA: And in your view would 5 that information have affected the deter -- in your view 6 then, it would not have affected the determination? 7 MS. ELIZABETH DORIS: Correct. 8 MR. ROBERT CENTA: The -- HPARB then goes 9 on to consider the reasonableness of the Panel -- the 10 Complaints Committee's decision and in the final 11 paragraph on page 5 writes: 12 "Thus, in the first of these concerns, 13 "Concealment", the Panel of Assessors' 14 letter to the committee states that Dr. 15 Smith retained the hair, and the 16 suggestion is apparent that the 17 assessors believe that it was held by 18 him in good faith as a function of 19 safekeeping. It was apparently offered 20 to the police but the police chose not 21 to accept it." 22 And that's consistent with what the Panel 23 of Assessors wrote? 24 MS. ELIZABETH DORIS: Yes. 25 MR. ROBERT CENTA: Would you agree with

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1 me that there was other evidence before the Panel, in the 2 statements from Constable Charmley and the other material 3 from the Peterborough Police, that could have supported 4 another conclusion? 5 MS. ELIZABETH DORIS: I don't understand 6 the question. 7 MR. ROBERT CENTA: The Panel concluded 8 that the -- Dr. Smith offered the hair to the police, and 9 they chose not to accept it. 10 MS. ELIZABETH DORIS: Right. 11 MR. ROBERT CENTA: And would you agree 12 with me that there was information and material before 13 the Panel of Assessors and before the Complaints 14 Committee, in the form of the material from -- provided 15 to you by the Peterborough Police, that could have 16 supported a different conclusion? 17 MS. ELIZABETH DORIS: Yes. 18 MR. ROBERT CENTA: And ultimately HPARB 19 dismissed Ms. Waudby's appeal in this decision? 20 MS. ELIZABETH DORIS: Yes. 21 MR. ROBERT CENTA: And am I correct that 22 HPARB also dismissed Mr. Gagnon's appeal? 23 MS. ELIZABETH DORIS: Yes. 24 MR. ROBERT CENTA: And that is found at 25 Tab 69 of Volume II, PFP146982. No, I'm sorry, I'm going

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1 to take a step back. 2 Ms. Waudby appealed the decision from 3 HPARB? 4 MS. ELIZABETH DORIS: Yes, she did. 5 MR. ROBERT CENTA: DM appealed the 6 decision from HPARB? 7 MS. ELIZABETH DORIS: Yes. 8 MR. ROBERT CENTA: Mr. Gagnon did not 9 appeal -- 10 MS. ELIZABETH DORIS: No -- 11 MR. ROBERT CENTA: -- the decision -- 12 MS. ELIZABETH DORIS: -- he did not. 13 MR. ROBERT CENTA: -- from HPARB? 14 And the document at Tab 69 is HPARB's 15 disposition of the DM appeal. And they've used -- 16 they've used -- instead of using the acronym "DM" they've 17 used the acronym "X"? 18 MS. ELIZABETH DORIS: Yes, it is. Yes. 19 MR. ROBERT CENTA: And that -- HPARB 20 dismissed that appeal as well? 21 MS. ELIZABETH DORIS: Yes. 22 MR. ROBERT CENTA: And am I correct that 23 following HPARB's dismissal of the appeals, the decision 24 of the Complaints Committee stood? 25 MS. ELIZABETH DORIS: Yes.

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1 MR. ROBERT CENTA: And was -- was 2 essentially complete? 3 MS. ELIZABETH DORIS: Yes. 4 MR. ROBERT CENTA: And at that point 5 became effective and the dis -- the direction to Dr. 6 Smith to attend to receive a caution would come into 7 effect? 8 MS. ELIZABETH DORIS: Yes. 9 MR. ROBERT CENTA: If you turn to -- in 10 Volume II to Tab 71, PFP146392. This is a memo, I take 11 it, signed by the Acting Chair of the Complaints 12 Committee, is that correct? Is that -- 13 MS. ELIZABETH DORIS: It appears to be, 14 yes. 15 MR. ROBERT CENTA: Dr. Gerace, can you 16 help us with that. Is that the Acting Chair of the 17 Complaints Committee? Is that what that refers to? 18 DR. ROCCO GERACE: He would have been the 19 Co-Chair of the Complaints Committee and likely, acting 20 Chair of the panel, but he -- he was certainly a member 21 of the committee, and I believe he was Chair at the time. 22 MR. ROBERT CENTA: And Dr. Gerace, this 23 is a form that records that the caution was administered 24 to Dr. Smith on May the 26th? 25 DR. ROCCO GERACE: Yes.

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1 MR. ROBERT CENTA: And those four (4) 2 members of the panel, would those all be members of the 3 Complaints Committee? 4 DR. ROCCO GERACE: Yes. 5 MR. ROBERT CENTA: Am I correct -- Dr. 6 Gerace, if you look at Tab 72 of Volume II, PFP146393. 7 This is a -- what is this form? 8 DR. ROCCO GERACE: This is described as a 9 record of interaction between the panel and Dr. Smith. 10 MR. ROBERT CENTA: And when would a panel 11 member fill out this form? 12 DR. ROCCO GERACE: I would assume 13 immediately after the -- the interaction. This is -- 14 this was a new process from the time I had left the 15 Complaints Committee, so that would be my assumption, but 16 I don't know for sure. 17 MR. ROBERT CENTA: Dr. Gerace, if I could 18 ask you, in general, what is the purpose of administering 19 a caution in -- in -- at the College of Physicians and 20 Surgeons? 21 DR. ROCCO GERACE: Well, a caution is a 22 disposition set out in the legislation that expresses 23 concern or the view of a panel of peers in respect to the 24 doctor's behaviour or clinical activity or the matter 25 that was before the -- before the committee.

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1 MR. ROBERT CENTA: And generally, in -- 2 without specific reference to this case, in what 3 circumstances is -- do you consider it appropriate to use 4 a caution as opposed to the other statutory dispositions 5 that -- that are available to the committee? 6 DR. ROCCO GERACE: Well -- well, there's 7 a range, as you know, of dispositions ranging from no 8 action to a referral to the Discipline Committee. And 9 the committee will frequently make a judgment where in 10 that spectrum the disposition should occur. 11 Obviously, if they are of the view that 12 nothing untoward occurred they -- they would likely take 13 no action. If they're of the view that it's egregious 14 behaviour, they may take the position of referring it to 15 the Discipline Committee. 16 A caution is in the middle of that, and 17 within the context of a caution, there can be both a 18 written caution or a caution in person; a caution in 19 person being more severe. So these various dispositions 20 express the -- the feelings or the opinions of the 21 Complaints Committee in regard to the matter having been 22 considered. 23 MR. ROBERT CENTA: And you indicated that 24 a -- that a caution in person was seen as a more serious 25 disposition than a written caution. Why would that be?

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1 DR. ROCCO GERACE: Well, the member is 2 required to attend at the College. This is certainly 3 much more serious. He has to face a panel of his peers. 4 He has to be prepared to discuss the events that 5 occurred. In some cases, he will be required or she will 6 be required to present evidence that they have done 7 certain activity, perhaps, reviewing a clinical matter of 8 that sort. 9 So it -- so it seemed to be, I think, more 10 severe. It's -- it's always more difficult to be facing 11 a panel of your peers and -- and receiving this 12 information than to receive it in a letter or a decision. 13 MR. ROBERT CENTA: Can you please 14 describe, from your perspective, how cautions 15 administered in person advance the public interest in -- 16 in the goals of the College? 17 DR. ROCCO GERACE: Well, I -- I can tell 18 you as a physician, I would find a caution devastating. 19 I -- I think this is really a statement of -- of my peers 20 as saying that -- that I had not acted properly. I think 21 the average physician would take that very seriously and 22 would take measures to ensure that -- that not happen 23 again. 24 It's -- it's, I think, perceived by the 25 profession as being as significant outcome. Indeed many

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1 doctors will -- will appeal to HPARB, a decision of the 2 committee to issue a caution, so it's taken very 3 seriously. 4 MR. ROBERT CENTA: And do you have any 5 sense of how successful cautions are from the College's 6 point of view in achieving the goals that you've 7 indicated? 8 DR. ROCCO GERACE: This would just be 9 intuitive, and I think again, there would be a range of 10 responses, because there are certainly doctors that are 11 cautioned on more than one (1) occasion. These perhaps 12 are physicians that did not alter their behaviour, their 13 clinical practice following a caution. 14 But there are many doctors who are not 15 cautioned again. I don't have numbers in respect to 16 that, but I would think that the average physician having 17 taken this outcome seriously would -- would attempt to 18 correct their behaviour; would -- would ensure that 19 whatever had happened, not happen again. 20 MR. ROBERT CENTA: In returning to the 21 record of interaction found at Tab 72, PFP -- 22 COMMISSIONER STEPHEN GOUDGE: Just ask 23 you, Dr. Gerace, do you ever couple a caution with a 24 remedial prescription? 25 DR. ROCCO GERACE: Yes. There are cases,

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1 for example, in a clinical matter when a physician might 2 have misread a cardiogram. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. ROCCO GERACE: And the remedial 5 prescription will -- would be something along the line 6 that the doctor will demonstrate having reviewed and 7 learned about reading cardiograms. 8 9 CONTINUED BY MR. ROBERT CENTA: 10 MR. ROBERT CENTA: And, Commissioner, if 11 I can point out on -- on Tab 72, PFP146393, the second 12 table on the page, the final box, that indicates whether 13 or not a request was made for the member to undertake 14 further homework subsequent to caution. And there's a 15 space there to indicate whether or not the Committee did 16 ask the member to undertake, as they put it, further 17 homework. 18 DR. ROCCO GERACE: We refer to it as 19 homework, yes. 20 COMMISSIONER STEPHEN GOUDGE: And neither 21 is circled, is that right? 22 DR. ROCCO GERACE: That's correct. 23 COMMISSIONER STEPHEN GOUDGE: What does 24 that mean? 25 DR. ROCCO GERACE: I would imply by that

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1 that the member was not asked to do homework. 2 COMMISSIONER STEPHEN GOUDGE: So that 3 really means no? No request? 4 DR. ROCCO GERACE: Yes. I think there's 5 another form where it's actually circled as no. 6 MR. ROBERT CENTA: Well, if you'd look at 7 Tab 73, Dr. Gerace, if I can be of assistance, PFP146394, 8 is another form and it indicates that the member had not 9 been asked to complete homework in advance of the 10 caution, and therefore the -- no indication of whether 11 the homework requested was completed. 12 We'll see at the lunch break if we can 13 identify any other forms that may record that information 14 to be of assistance to you. 15 COMMISSIONER STEPHEN GOUDGE: All right. 16 17 CONTINUED BY MR. ROBERT CENTA: 18 MR. ROBERT CENTA: Returning to 19 PFP146393, at Tab 72, this records the impressions of the 20 -- the panel member, and in a number of categories: 21 Whether or not the member was willing to 22 discuss the subject of caution in an open and frank 23 manner. 24 Whether or not the member acknowledges, 25 recognizes and understands their error in cases under

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1 review. 2 Whether or not the member was 3 confrontational, argumentative and/or defensive during 4 the course of caution. 5 And whether or not the member appeared to 6 resent the obligation to appear at the caution. 7 And, Dr. Gerace, I take it those are set 8 out because those are indicators to the panel member of 9 the members attitude to the caution? 10 DR. ROCCO GERACE: Yes. 11 MR. ROBERT CENTA: And it's an attempt to 12 assess in part how the panel member perceives the effect 13 of the caution and whether or not it was an effective 14 meeting or not? 15 DR. ROCCO GERACE: That's correct. 16 MR. ROBERT CENTA: And at the bottom 17 that's recorded on that chart from one (1) to ten (10). 18 And this member has indicated that the 19 circled ten (10) indicating that the panel members 20 overall sense regarding the extent to which the caution 21 was served useful, educate a function that was very 22 useful, and is recorded that the member understands his 23 role in this complaint and has instituted appropriate 24 changes. 25 DR. ROCCO GERACE: That's correct.

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1 MR. ROBERT CENTA: Looking at this form 2 and the next form where the member has indicated a score 3 of nine (9), and that's PFP146394 at Tab 73, these 4 documents would indicate that the panel members perceived 5 this as being a very successful meeting? 6 DR. ROCCO GERACE: It would seem so. 7 MR. ROBERT CENTA: Okay. 8 COMMISSIONER STEPHEN GOUDGE: In terms of 9 the previous document, Dr. Gerace, let me just ask you a 10 couple of questions. The appropriate changes remain 11 obscure from that document. You can't tell what either 12 Dr. Smith suggested he might make changes in, or what the 13 panel might have suggested he make changes in. 14 That would be lost in the mist of time I 15 take it? 16 DR. ROCCO GERACE: I -- it's my 17 impression that it was simply not recorded -- 18 COMMISSIONER STEPHEN GOUDGE: Oh, Okay. 19 DR. ROCCO GERACE: -- what may have 20 occurred. 21 COMMISSIONER STEPHEN GOUDGE: I guess the 22 question I have with this as a process in this kind of 23 speciality, is how does the panel either hearing the 24 individual members proposed appropriate changes or 25 suggesting it, how do they deal with the expertise that

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1 the member has that they may not have? That is, this is 2 a highly specialized area that required the use of 3 investigators who were specialized? 4 DR. ROCCO GERACE: Yes. 5 COMMISSIONER STEPHEN GOUDGE: How do you 6 get to appropriate changes as a panel that doesn't have 7 the same level of sophisticated expertise that the 8 investigators do? 9 DR. ROCCO GERACE: Well, keep in mind 10 that -- that members of the panel are physicians -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. ROCCO GERACE: -- and they -- they 13 would understand -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. ROCCO GERACE: -- this is my 16 interpretation -- would understand the expert report -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. ROCCO GERACE: -- and the 19 implications of the expert report. And so would be able 20 to talk about the expert report. 21 COMMISSIONER STEPHEN GOUDGE: The 22 deficiencies that the expert report had -- 23 DR. ROCCO GERACE: Exactly. 24 COMMISSIONER STEPHEN GOUDGE: -- pointed 25 out.

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1 DR. ROCCO GERACE: Exactly. 2 COMMISSIONER STEPHEN GOUDGE: I see. And 3 so they'd be derived from that? 4 DR. ROCCO GERACE: Yes. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 Thank you. 7 8 CONTINUED BY MR. ROBERT CENTA: 9 MR. ROBERT CENTA: Dr. Gerace, if you 10 could turn to Tab 74 in binder number 2, PFP145675. This 11 is a letter dated September 26th, 2005. Approximately a 12 year and four (4) months after the caution we just 13 discussed, and it's from the College of Physicians and 14 Surgeons of Saskatchewan. 15 Do you remember receiving this letter? 16 DR. ROCCO GERACE: I -- I don't 17 specifically remember the letter. I -- I do recall that 18 there was an inquiry made. 19 MR. ROBERT CENTA: And the letter reads, 20 this is PFP145675: 21 "As I suspect you are aware, there's 22 been significant media interest in Dr. 23 Smith, the pathologist who is 24 previously pract -- was practising at 25 Sick Children's Hospital in Toronto,

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1 and is not practising in Saskatchewan. 2 There appears to be a significant 3 discrepancy between the information 4 that he provided to us and the 5 information that was recently published 6 in the Toronto Star." 7 And -- and skipping to the next paragraph: 8 "Dr. Smith answered no to the following 9 questions on his application form. 10 Have you ever been suspended, 11 disqualified, censured, or had any 12 disciplinary action taken against you 13 as a member of any profession? 14 Have you ever been the subject of an 15 Inquiry or investigation by a medical 16 licensing authority or hospital? 17 Are you aware of any complaint or 18 charge pending against you by any 19 medical licensing authority which might 20 result in you being suspended, 21 reprimanded or otherwise disciplined?" 22 And the College encloses -- the College of 23 -- the Saskatchewan College encloses the material 24 provided by Dr. Smith and asks for your College to 25 provide any assistance it can.

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1 At Tab 75, Dr. Gerace, PFP145667, this is 2 the response that the CPSO provided to the College in 3 Saskatchewan? 4 DR. ROCCO GERACE: That's correct. 5 MR. ROBERT CENTA: And it indicates in 6 paragraph 2 that: 7 "On October 15th, 2002, the Complaint's 8 Committee of the College of Physicians 9 and Surgeons of Ontario considered 10 three (3) complaints against Dr. Smith. 11 Their decision on these three (3) 12 matters was to require Dr. Smith to 13 appear before a panel of the Committee 14 to be cautioned regarding his clinical 15 performance." 16 It then explains the statutory basis of 17 that jurisdiction and states that: 18 "The complaints were not referred to 19 the Discipline Committee of our College 20 for a formal hearing. And I -- and I 21 assume you will determine whether this 22 action by Complaint's Committee 23 constitutes a censure as contemplated 24 by question 3 of your licensor 25 application. With regards to question

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1 11, the CPSO has no pending complaints 2 against Dr. Smith. In regard to 3 question 10, the above referenced 4 disposition of the Complaint's 5 Committee of the Ontario College was 6 the result of an investigation 7 conducted by our College into the 8 standard of care provided by Dr. Smith 9 in three (3) separate complaints." 10 And just to remind you, Dr. Gerace, 11 question 10 on the Saskatchewan complaints form was: 12 "Have you ever been the subject of an 13 inquiry or investigation by a medical 14 licensing authority or hospital? 15 Dr. Gerace, is this matter presently under 16 consideration? 17 DR. ROCCO GERACE: I can tell you that -- 18 and again, I don't have documentation, that the 19 Saskatchewan College initiated proceedings against Dr. 20 Smith in this regard. 21 MR. ROBERT CENTA: If you'd -- 22 DR. ROCCO GERACE: And -- 23 MR. ROBERT CENTA: Sorry, go ahead. 24 DR. ROCCO GERACE: And -- and the results 25 of those proceedings were communicated to us.

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1 MR. ROBERT CENTA: If you turn to Tab 79 2 in Volume II, PFP302854, this is the newsletter of the 3 College of Physicians and Surgeons of Saskatchewan from 4 the summer of 2007. And if you turn to page 2 in that 5 Tab, there's a heading, "Disciplinary Action". 6 And under that heading -- the heading 7 reads: 8 "Dr. Charles Smith - Dr. Smith admitted 9 unprofessional conduct in his response 10 to the standard questions asked of 11 physicians applying for a license. He 12 was asked, 'Have you ever been the 13 subject of an inquiry or investigation 14 by a medical licensing authority or 15 hospital?' He admitted that his answer, 16 'No' was false or misleading. He had 17 been the subject of disciplinary 18 investigations in Ontario that had 19 resulted in him being cautioned by the 20 Ontario College. Dr. Smith asserted 21 that he did not intend to deliberately 22 mislead the College. The College did 23 not dispute that statement. Dr. Smith 24 received a reprimand and was required 25 to pay the cost of the investigation

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1 and hearing in the amount of two 2 thousand four hundred and seven dollars 3 and eighty-two ($2,407.82) cents. Dr. 4 Smith paid the costs and applied for a 5 license to practice. He was granted a 6 license, but with the restriction that 7 he was prohibited from practising 8 forensic pathology." 9 And then it says: 10 "This is the second time in the resent 11 past that a physician has been 12 disciplined for providing untrue or 13 misleading statements in an application 14 for licensure. It demonstrates the 15 importance of ensuring that all 16 information provided to the College is 17 completely accurate." 18 And without ref -- specific reference to 19 Dr. Smith, do you agree with the sentiments that are in 20 the last paragraph, that: 21 "It's important to ensure that all that 22 all information provided to the College 23 is completely accurate." 24 DR. ROCCO GERACE: Yes. 25 COMMISSIONER STEPHEN GOUDGE: Do you know

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1 what the reference is to the second time in that 2 paragraph? 3 DR. ROCCO GERACE: I'm reading it that 4 this is the second physician that was disciplined for a 5 matter of this nature. 6 COMMISSIONER STEPHEN GOUDGE: I see. 7 DR. ROCCO GERACE: That's my 8 interpretation. 9 COMMISSIONER STEPHEN GOUDGE: That makes 10 sense. 11 MR. ROBERT CENTA: But I mean the second 12 physician in Saskatchewan? 13 DR. ROCCO GERACE: In Saskatchewan. 14 COMMISSIONER STEPHEN GOUDGE: Thank you. 15 16 CONTINUED BY MR. ROBERT CENTA: 17 MR. ROBERT CENTA: Now, Dr. Gerace, we've 18 a -- a little bit of time left, and thank you for 19 agreeing to return to be with us one (1) more time in 20 February on a Policy Roundtable to discuss issues of 21 oversight and accountability. 22 So many of the questions relating to your 23 broad views on -- on that can be deferred until that 24 occasion. However, I do have a couple of questions for 25 you in that area.

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1 Following the decision of HPARB to refer 2 the DM complaint back to the College, so your complaint - 3 - the Complaint's Committee had declined jurisdiction 4 with reflecting the -- reflecting on the policy of the 5 Executive Committee, and had been declined jurisdiction 6 HPARB sent it back. 7 Had you -- said to me earlier that that 8 was the -- the College was now conducting itself and its 9 investigations consistent with HPARB's direction, is that 10 correct? 11 DR. ROCCO GERACE: Yes. 12 MR. ROBERT CENTA: How do you, today, 13 articulate the boundaries of the investigations that you 14 will conduct into a coroner or a pathologist acting under 15 coroner's warrant? 16 We saw in earlier memos at the College 17 there's an attempt to try and distinguish between the 18 quasi judicial actions of a coroner exercising their -- 19 their statutory duties and a coroner's conduct of medical 20 practice. 21 Is that distinction one (1) that -- that 22 the College finds useful today? 23 DR. ROCCO GERACE: Today the College, if 24 it receives a complaint, will investigate the complaint. 25 Whether it's a complaint about a pathologist acting under

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1 the direction of a coroner, I can't recall that there has 2 been one (1) recently, but I know recently there has been 3 a complaint against the coroner in his job as a coroner 4 and the Committee investigated and issued a decision in 5 that complaint. 6 MR. ROBERT CENTA: And can you help us 7 with what did -- what a -- what the coroner's decision 8 was that was being complained about? 9 DR. ROCCO GERACE: And -- and subject to 10 correction, because I actually can't recall that I 11 actually read the decision. My recollection is that it 12 was a coroner investigating a death and having issued a 13 decision in that death. 14 And so it was clearly acting in the role 15 of a coroner. 16 MR. ROBERT CENTA: And we'll see over the 17 lunch break if we can track that -- that decision down 18 for you and you can have a chance to review it and 19 refresh your memory. 20 Similar and related question, does the 21 College currently assert jurisdiction to investigate 22 complaints about physicians who provide expert testimony 23 in courts? 24 DR. ROCCO GERACE: Yes. 25 MR. ROBERT CENTA: And have you had any

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1 cases like that? 2 DR. ROCCO GERACE: I'm aware of two (2) 3 cases. In one (1) case a physician who misrepresented 4 his credentials, it was brought to the attention of the 5 College, and in fact there was a discipline hearing 6 related to that case, and the doctor was -- I can't 7 remember all of the outcomes, but there was a discipline 8 finding in relation to that doctor. 9 In the second case I'm aware that it 10 occurred -- I recused myself because I had a conflict, 11 and so I can't talk about what the outcome was. 12 MR. ROBERT CENTA: And do you think that 13 the Complaint's Committee and the Discipline Committee at 14 the College have the expertise to assess the test -- the 15 expert testimony provided by medical professions -- 16 professionals in -- in Ontario? 17 DR. ROCCO GERACE: I would say that if -- 18 if the expertise does not exist in the panel, that they 19 would seek the esper -- expertise necessary to provide 20 that assessment. 21 So there are -- there are not 22 infrequently, for example, complaints in respect to 23 reports about child custody issues. And so if -- if 24 indeed it becomes complex, the -- the Committee will -- 25 will get the advice of an expert in that area to provide

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1 an opinion regarding the integrity of the report. 2 MR. ROBERT CENTA: Ms. Doris and Mrs. 3 Mann, you -- 4 COMMISSIONER STEPHEN GOUDGE: Sorry -- 5 MR. ROBERT CENTA: Yes. 6 COMMISSIONER STEPHEN GOUDGE: -- can I 7 just ask -- I'm delighted you're prepared to come back, 8 Dr. Gerace, because obviously there's a lot of policy 9 ground that we would like to cover with you, but let me 10 ask a specific question that's been the subject of a good 11 deal of evidence here. 12 Would it be something that the College 13 would consider within the bounds of proper investigation 14 and the discipline process if necessary, if it was 15 alleged that the medical doctor giving evidence went 16 beyond the proper bounds of his expertise? 17 DR. ROCCO GERACE: I would say yes. 18 COMMISSIONER STEPHEN GOUDGE: And I take 19 it, if necessary, a panel would get the same kind of 20 expert assistance that they had in the cases that Mr. 21 Centa's taken the three (3) of you to? 22 DR. ROCCO GERACE: If necessary they 23 would, yes. 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25 Thanks, Mr. Centa.

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1 2 CONTINUED BY MR. ROBERT CENTA: 3 MR. ROBERT CENTA: Mrs. Mann, and Ms. 4 Doris, you've not been asked to come back to join us 5 again. 6 Do you have any -- having reflected on the 7 -- the investigations and understanding the work of the 8 Inquiry, do you have any suggestions you'd like to make 9 to the Commissioner regarding systemic changes that could 10 be made, from your perspective, to make the job of 11 investigators in these kinds of cases easier? 12 MS. ELIZABETH DORIS: If I could just 13 comment on the difficulty with obtaining records with the 14 police department and with the Coroner's Office that may 15 have helped with respect to the Waudby Case. 16 MR. ROBERT CENTA: And what -- 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 18 Doris. 19 20 CONTINUED BY MR. ROBERT CENTA: 21 MR. ROBERT CENTA: Mrs. Mann...? 22 MS. MICHELE MANN: I can't think -- we've 23 had some changes in -- procedurally and how we conduct 24 investigations and collect information and I can't see 25 this sort of situation recurring again, so I don't have

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1 any suggestions at this time. 2 MR. ROBERT CENTA: Thank you. 3 MS. MICHELE MANN: Thank you. 4 MR. ROBERT CENTA: Commissioner, unless 5 you have any other questions, that concludes my 6 examination. 7 COMMISSIONER STEPHEN GOUDGE: Okay, 8 that's great. Thanks, Mr. Centa. Thanks, the three (3) 9 of you. We'll ask you to return at two o'clock and there 10 will be additional questions for you. 11 We'll try over the lunch hour to 12 accommodate as best we can the request for time. We may 13 not be able to do that entirely, and to do our best we 14 may ask each of you, all of you, to stay a little bit 15 beyond our usual break time. 16 So we'll rise now until two o'clock. 17 18 --- Upon recessing at 1:40 p.m. 19 --- Upon resuming at 2:02 p.m. 20 21 THE REGISTRAR: All rise. Please be 22 seated. 23 COMMISSIONER STEPHEN GOUDGE: Okay. Well 24 we have done our best to -- I have done my best to 25 accommodate the times; I am afraid I could not do

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1 everything for everybody. But Ms. Silver, if you would 2 lead off, please. 3 MS. CAROLYN SILVER: Thank you. 4 5 CROSS-EXAMINATION BY MS. CAROLYN SILVER: 6 MS. CAROLYN SILVER: Dr. Gerace, you gave 7 evidence that today, if a complaint were received about a 8 pathologist who was doing work for the Coroner's Office, 9 the College would take jurisdiction in that matter? 10 DR. ROCCO GERACE: Yes. 11 MS. CAROLYN SILVER: And can you -- you 12 mentioned other cases where the College does take 13 jurisdictions where there are complaints about physicians 14 acting as experts? 15 DR. ROCCO GERACE: Yes. 16 MS. CAROLYN SILVER: And I think you 17 mentioned child custody cases. Would you be able to 18 elaborate on that? 19 DR. ROCCO GERACE: Well, if it -- if 20 there is a concern brought to the College about a report 21 produced by a physician in respect to a child custody 22 issue, the -- the Complaints Committee would take 23 jurisdiction of that case, review it, and if need be, 24 seek expert assistance in -- in coming to a disposition. 25 MS. CAROLYN SILVER: And you said the

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1 College would take jurisdiction; have they taken 2 jurisdiction in those types of cases? 3 DR. ROCCO GERACE: Yes, frequently in the 4 past. 5 MS. CAROLYN SILVER: Okay. And are there 6 other examples of types of expert opinion given by 7 physicians where there are complaints -- where the 8 College takes jurisdiction? 9 DR. ROCCO GERACE: I alluded to 10 complaints about expert testimony in, I believe, it was 11 civil liti -- civil litigation, where the College took 12 action. 13 Frequently, doctors will do independent 14 medical examinations and -- and complaints about the 15 independent medical exam is -- is investigated and a 16 decision rendered. 17 MS. CAROLYN SILVER: And you mentioned a 18 case where there had been a complaint about the coroner 19 conducting the coroner's investigation where the College 20 assumed jurisdiction and conducted an investigation? 21 DR. ROCCO GERACE: That's correct. 22 MS. CAROLYN SILVER: And do you know if 23 there was a decision; a discipline decision? Is this a 24 matter that went to discipline? 25 DR. ROCCO GERACE: This did not go to

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1 discipline. This was a complaints investigation, and the 2 Complaints Committee issued a decision. 3 MS. CAROLYN SILVER: Okay. I just want 4 to return to the issue of the jurisdiction between the 5 College and the Coroner's Office back in 1997 and 6 previous to the Complaints Committee not assuming 7 jurisdiction in May 1998. 8 And you're aware that there were 9 discussions between the College and the Coroner about who 10 should and could assume jurisdiction over complaints 11 about coroners and pathologists working for the coroner, 12 correct? 13 DR. ROCCO GERACE: Yes. 14 MS. CAROLYN SILVER: And there have been 15 references in some of the documents -- I won't take you 16 there -- but reference to -- references to the Coroner 17 stating that the coroner would litigate over this issue 18 if necessary; litigate over the jurisdiction issue. 19 Were you aware of that? 20 DR. ROCCO GERACE: Yes. I was not aware 21 at the time, I'm aware now having read the documentation. 22 MS. CAROLYN SILVER: Okay. And was it 23 your understanding that the College was afraid of 24 litigating with the Coroner's Office? 25 DR. ROCCO GERACE: No, that was not my

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1 understanding. 2 MS. CAROLYN SILVER: And what was your 3 understanding of how the position of the coroner saying 4 it would litigate was relevant to the College's 5 consideration of the jurisdiction issue? 6 DR. ROCCO GERACE: Well, my understanding 7 is that -- is that both parties were debating who should 8 investigate the complaint and who should ensure that -- 9 that the standard was met. And -- and my understanding 10 of the deliberation at the time is -- is why expend 11 resources to determine who was going to do it, but rather 12 ensure that it was done and -- and assuming it would be 13 done appropriately. 14 MS. CAROLYN SILVER: And sorry, when you 15 say assuming it would be done appropriately, who was 16 assuming it would be done appropriately? 17 DR. ROCCO GERACE: Well, certainly I -- I 18 would imagine -- I -- I would assume that if the 19 Coroner's Office was going to investigate a complaint, it 20 would be a full investigation and -- and there would be 21 whatever is necessary to -- to ensure that the standard 22 of practice was being met, much as we had done. 23 MS. CAROLYN SILVER: And in your evidence 24 before the lunch break, you said that you understood that 25 there were a variety of venues where a complaint such as

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  1  the one against Dr. Smith could be dealt with either
  2  through the Complaints Committee or the Coroners'
  3  Council?
  4                 DR. ROCCO GERACE:   Yes.
  5                 MS. CAROLYN SILVER:   And you said that it
  6  was your expectation that both venues had the same
  7  interest was -- which was the protection of the public
  8  interest.  Can you explain that?
  9                 DR. ROCCO GERACE:   Well, I -- I -- again,
 10  I don't know the Coroners Act.  I certainly know the RHPA
 11  and the -- the primary responsibility of the College in
 12  carrying out its responsibility is to serve and protect
 13  the public interest.  
 14                 I would assume that the responsibility of
 15  the Coroner's Office in carrying out its activity is
 16  similarly the public interest.  So the focus would be the
 17  same, and that's ensuring public interest protection.
 18                 MS. CAROLYN SILVER:   And did you have any
 19  reason at the time to think that the Coroner's Office
 20  wouldn't deal with these types of complaints
 21  appropriately in the public interest?
 22                 DR. ROCCO GERACE:   None whatever.
 23                 MS. CAROLYN SILVER:   Did you have any
 24  reason to believe that the Coroner's Office wouldn't
 25  investigate these complaints properly?

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1 DR. ROCCO GERACE: None. 2 COMMISSIONER STEPHEN GOUDGE: Do you have 3 any sense, Dr. Gerace, about since the HPARB decision 4 that invited the College to take jurisdiction, what 5 volume of complaints have you had? If you had the two 6 (2) wickets and coroner and pathologist, putting them 7 both together, what -- do you have any sense of that? 8 I mean, are we talking five (5) 9 complaints, five (5) a year? 10 DR. ROCCO GERACE: I -- I don't actually 11 know the answer. I would think it would be under ten 12 (10) in total since that time and now, but I -- I'm sure 13 we could find that out. It would be a very small number. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 Thanks. 16 17 CONTINUED BY MS. CAROLYN SILVER: 18 MS. CAROLYN SILVER: In light of the 19 coroner's insistence on taking jurisdiction over these 20 types of complaints, was it your understanding that the 21 College was relying on the coroner to properly deal with 22 these complaints and fully investigate them? 23 DR. ROCCO GERACE: I would have assumed 24 that -- having gone through the testimony and the -- the 25 extent to which complaints are investigated by us and the

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1 -- the gathering of information, I would have assumed 2 that there would have been a similar process in the 3 Coroner's Office; that the extent of investigation would 4 have been at least as rigorous, if not more rigorous, 5 than our process. 6 MS. CAROLYN SILVER: And did you believe 7 at the time -- and I'm talking about at the time of the 8 Complaints Committee decision in May of 1988 -- that the 9 coroner could properly investigate and address complaints 10 that were directed to them by the College? 11 DR. ROCCO GERACE: Absolutely. And 12 again, in '98, there was still an understanding that 13 there was a Coroners' Council that was struck 14 specifically to -- to do just that. And so it would have 15 been my view at the time that -- that's what would have 16 happened. 17 MS. CAROLYN SILVER: And I just want to 18 pull up a document. It's PFP133657, and it would be 19 found in Volume I at Tab 45, Dr. Gerace. You understand 20 that Mr. Gagnon's complaint was directed to the Coroner's 21 Office? 22 DR. ROCCO GERACE: Yes. 23 MS. CAROLYN SILVER: And just looking at 24 the first paragraph, this is a letter from the Office of 25 the Chief Coroner, and it's signed by James Young to Mr.

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1 Gagnon. The last sentence of the first paragraph reads: 2 "I have read your brief in detail and 3 considered it very carefully." 4 Do you see that? 5 DR. ROCCO GERACE: Yes. 6 MS. CAROLYN SILVER: And reading that in 7 that letter, would you have understood that either Dr. 8 Young or someone at the Coroner's Office had carefully 9 reviewed and read in its entirety, Mr. Gagnon's 10 complaint? 11 DR. ROCCO GERACE: Yes. 12 MS. CAROLYN SILVER: And would you have 13 understood that that would have entailed some sort of 14 investigation as well? 15 DR. ROCCO GERACE: Again, I would have 16 anticipated -- and again, not knowing that the Coroner's 17 Council had been -- been disbanded, I would have 18 anticipated a degree of investigation as rigorous or more 19 rigorous than our investigation. 20 MS. CAROLYN SILVER: And if you turn with 21 me to Tab 47 of that same volume, it's PFP144812, this is 22 a letter of December 17th, 1999, from Dr. Young to Dr. 23 Bonn at the College. 24 Just turning to page 2 of that document. 25 At the end of the last full paragraph, Dr. Young says:

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1 "I took the concerns of Mr. Gagnon very 2 seriously and based on the information 3 available to me, I stand by my 4 conclusions." 5 And I want to ask you the same sort of 6 question. Reading that letter that Dr. Young sent to Dr. 7 Bonn, would you have understood that Dr. Bonn (sic) read 8 the entire complaint? 9 DR. ROCCO GERACE: That Dr. Young would 10 have read -- 11 MS. CAROLYN SILVER: Yes. 12 DR. ROCCO GERACE: -- the entire 13 complaint? Yes. 14 MS. CAROLYN SILVER: We've now heard 15 evidence from Dr. Young that he, in fact, did not read 16 the entire complaint filed by Mr. Gagnon. 17 What's your reaction to that? 18 DR. ROCCO GERACE: Well, I was surprised 19 and disappointed that that's what had occurred. 20 MS. CAROLYN SILVER: And I take it you 21 didn't know that at the time? 22 DR. ROCCO GERACE: I did not. 23 MS. CAROLYN SILVER: And what if you did 24 know -- while there were these discussions about 25 jurisdiction going on, what if you were aware of the fact

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1 that Dr. Young wasn't going to read the entire complaint? 2 DR. ROCCO GERACE: It would have been my 3 view at the time, as it is now, that we should have taken 4 -- I would have more strenuously argued that we should 5 have taken jurisdiction of the matter. 6 I was, at the time, as you know, of the 7 view that we should have taken jurisdiction anyway, but I 8 would have been far more strenuous in my argument. 9 MS. CAROLYN SILVER: Now Dr. Young gave 10 evidence that the Coroner's Office had a network of 11 people that they could contact to conduct review of the 12 work of forensic pathologists and testimony given by 13 forensic pathologists in court, and the CPSO, the 14 College, might not have access to that same network. 15 Do you agree with that? 16 DR. ROCCO GERACE: I do not. 17 MS. CAROLYN SILVER: Can you elaborate? 18 DR. ROCCO GERACE: Well, we heard this 19 morning that when the issue arose when we attempted to 20 gather a panel to review the matter of Dr. Smith, that we 21 were -- we were actually interviewing to get people for 22 the panel. So we were, in fact, able to gather enough 23 names that we put together this panel. 24 MS. CAROLYN SILVER: And was it usual for 25 the College to gather a panel of three (3) experts?

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1 DR. ROCCO GERACE: Not usual, that was 2 somewhat unique. Right around that time we had begun -- 3 and I can't remember the exact dates, but had begun to 4 consider the use of panels for various matters. 5 An example is, in obstetrics, when there 6 are obstetrical matters, we had gathered a panel of 7 experts to consider many -- many of the matters that came 8 to the attention of the College around obstetrics. So 9 the concept of a panel, while new, it was not unique. 10 Indeed, as you're looking -- in going 11 forward, we're looking at that even further today in 12 terms of clusters of complaints and the value of having 13 panels consider those complaints. 14 MS. CAROLYN SILVER: Ms. Mann, I'd like 15 to turn to you and ask you a couple of questions. 16 You gave evidence about your meeting with 17 Dr. Young when you discussed the case -- the complaint by 18 DM? 19 MS. MICHELE MANN: Correct. Yes. 20 MS. CAROLYN SILVER: And -- 21 MS. MICHELE MANN: Yes. 22 MS. CAROLYN SILVER: And you went to him, 23 you said, to answer some outstanding questions that DM 24 had? 25 MS. MICHELE MANN: Yes.

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1 MS. CAROLYN SILVER: And you said that 2 you recalled the meeting lasted between a half an hour 3 and an hour? 4 MS. MICHELE MANN: Roughly. I don't 5 recall exactly how long. It wasn't a ten (10) minute 6 meeting. It was a fair bit of time. 7 MS. CAROLYN SILVER: Right. And we 8 looked at your notes of that meeting, and I won't bring 9 you back to them, but they're quite limited, would you 10 agree with that? 11 MS. MICHELE MANN: Yes. 12 MS. CAROLYN SILVER: And you gave 13 evidence that you discussed with Dr. Young, Dr. Dunn's 14 (sic) decision in the case of DM's daughter. 15 MS. MICHELE MANN: Justice Dunn's 16 decision, yes. 17 MS. CAROLYN SILVER: And you also 18 discussed that Dr. Dunn was critical of Dr. Smith, as 19 well as the Hospital for Sick Children, correct? 20 MS. MICHELE MANN: Correct. 21 MS. CAROLYN SILVER: And that there were 22 a number of experts who testified that gave opinions that 23 were contrary to Dr. Smith's. 24 MS. MICHELE MANN: That's correct. 25 MS. CAROLYN SILVER: And none of that

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1 seems to be reflected in those brief notes you have of 2 that meeting, is that true? 3 MS. MICHELE MANN: That's correct. 4 MS. CAROLYN SILVER: Can I ask you why? 5 MS. MICHELE MANN: Generally speaking, if 6 I meet with a witness to interview them with a view to 7 asking questions, before -- you don't just simply just 8 walk into a room and start asking someone questions; you 9 usually try to put the case in context. 10 And so this was the first meeting I had 11 had with Dr. Young. And to the best of my recollection - 12 - I think the first even discussion I'd had with Dr. 13 Young with respect to this matter. And so in order to 14 help him to understand why I was there, I put some 15 context on the case by explaining to him why the -- why 16 the DM family had come to us in the first place with 17 their concerns. 18 And so that was simply putting context 19 onto the complaint so he understood where it was coming 20 from and why I was there, and then I would have gone into 21 the questions. 22 MS. CAROLYN SILVER: And you seem to have 23 a reasonably clear recollection of this meeting with Dr. 24 Young, is that fair? 25 MS. MICHELE MANN: Yes, that's fair.

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1 MS. CAROLYN SILVER: And is there a 2 reason why you have such a clear recollection, or does 3 this meeting stand out for any reason? 4 MS. MICHELE MANN: It stands out from one 5 (1) perspective in that it's not every day that an 6 investigator interviews the Chief Coroner of Ontario. 7 This was the first time I'd had an interview with the 8 Chief Coroner of Ontario and the only time, and so that - 9 - I remember it for that reason. 10 And I also remember a lot of the details 11 about the case in itself because I had, at the time, two 12 (2) -- three (3) children who were around the age of the 13 accused who also babysat, so the case was of particular 14 interest to me for that reason. 15 16 (BRIEF PAUSE) 17 18 MS. CAROLYN SILVER: Dr. Gerace, I want 19 to turn back to you and talk about the Hospital for Sick 20 Children. And the Hospital for Sick Children -- the 21 witnesses presented, gave evidence, that they were aware 22 of concerns about Dr. Smith's work as a pathologist while 23 he worked at the Hospital for Sick Children, and I think 24 you've had an opportunity to review those transcripts. 25 DR. ROCCO GERACE: Yes.

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1 MS. CAROLYN SILVER: And the evidence was 2 that there were concerns at the Hospital for Sick 3 Children about the -- Dr. Smith's opinions regarding 4 cause of death in certain forensic cases. 5 DR. ROCCO GERACE: Yes. 6 MS. CAROLYN SILVER: And they had 7 concerns, as well, about the timeliness of his reports. 8 DR. ROCCO GERACE: Yes. 9 MS. CAROLYN SILVER: And you've had the 10 opportunity now to look at some of the letters that the 11 Hospital of Sick Children wrote to Dr. Smith and an email 12 that was sent from Dr. Becker to Dr. Smith? 13 DR. ROCCO GERACE: Yes. 14 MS. CAROLYN SILVER: I just want to take 15 you briefly to a few of those. The first is PFP137837. 16 And I'll just ask you about it; it's not -- it will be up 17 on the screen. 18 DR. ROCCO GERACE: Thank you. 19 MS. CAROLYN SILVER: And this is a letter 20 from Dr. Becker letting Dr. Smith know that he has failed 21 to meet departmental standards, and they talk about three 22 (3) incomplete cases. Was the College made aware of this 23 letter? 24 DR. ROCCO GERACE: Not to my knowledge. 25 MS. CAROLYN SILVER: And then the next is

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1 PFP137850. It's a letter dated April 18th, 1997 from Dr. 2 Becker to Dr. Smith; it's unsigned. And you've had an 3 opportunity to review this letter? 4 DR. ROCCO GERACE: I have seen it more 5 recently, yes. 6 MS. CAROLYN SILVER: And in paragraph 2, 7 it says: 8 "Neither Paul or I -- nor I can see any 9 improvement in the reporting time or 10 the accuracy of your reports over the 11 past two (2) years." 12 Would that have been significant to you 13 that there had been no improvement, according to the 14 hospital, in Dr. Smith's reporting time or the accuracy 15 of his reports? 16 DR. ROCCO GERACE: Yes. 17 MS. CAROLYN SILVER: Why so? 18 DR. ROCCO GERACE: Well, clearly there 19 were problems with -- with Dr. Smith's practice. Those 20 problems were identified. He was given an opportunity to 21 correct the deficiencies. He didn't do so, and this has 22 been going on for two (2) years. 23 And clearly there was not going to be a 24 response to the hospital administration to improve 25 deficiencies in practice, so this is concerning.

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1 MS. CAROLYN SILVER: And when you say 2 "clearly there are problems with his practice", did the 3 College know about this? 4 DR. ROCCO GERACE: Not to my knowledge. 5 MS. CAROLYN SILVER: Okay. And then it 6 says: 7 "I regret to inform you my -- I must 8 curtail your responsibilities in 9 surgical pathology until you prove to 10 me evidence of successful completion of 11 continuing education courses that will 12 improve your skills in surgical 13 pathology." 14 And it goes on, and the last sentence in 15 that paragraph says: 16 "Your salary from the division of 17 pathology will be reduced by twenty 18 thousand dollars ($20,000) for 1997." 19 Having read that, in your view, is this 20 information that should have been reported to the 21 College? 22 DR. ROCCO GERACE: This would rea -- this 23 would represent to me, a restriction in his -- in his 24 responsibilities, and as such, subject for a mandatory 25 report.

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1 MS. CAROLYN SILVER: And did you -- did 2 the College receive a mandatory report to your knowledge? 3 DR. ROCCO GERACE: Not to my knowledge. 4 MS. CAROLYN SILVER: And then turning 5 last to PFP137707, this is a -- an email from Dr. Becker 6 to Dr. Smith. And it starts out saying: 7 "I have been reviewing the late 8 surgical and autopsy reports for the 9 past year and note that you have a long 10 list of outstanding cases." 11 Were you made aware of these concerns in 12 2002? 13 DR. ROCCO GERACE: I was not. 14 MS. CAROLYN SILVER: So as far as you 15 know, was any of this information from the Hospital for 16 Sick Children provided to the College? 17 DR. ROCCO GERACE: Not to my knowledge. 18 MS. CAROLYN SILVER: And would this 19 information have been significant to the College had it 20 been provided? 21 DR. ROCCO GERACE: I think it would have 22 been significant. I think knowing that there were 23 deficiencies in practice, coupled with the complaints, 24 this may have had some impact. I'm not sure what that 25 impact would have been, but it certainly would have been

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1 significant. 2 MS. CAROLYN SILVER: And is there any 3 significance in your view to the fact that these concerns 4 seem to run over a period from 1995 into 2002? 5 DR. ROCCO GERACE: It represents to me 6 the fact that -- that the Hospital was not ensuring that 7 it -- that the standard of practice was being maintained 8 by Dr. Smith. 9 MS. CAROLYN SILVER: And is that 10 something the College would have wanted to know? 11 DR. ROCCO GERACE: It indeed would have 12 wanted to know that. And I -- it's fair to say, we 13 talked this morning about Dr. Smith's application for a 14 Certificate of Registration in Saskatchewan, and the 15 usual course in applying for such a certificate would be 16 Saskatchewan seeking information from the College in 17 Ontario. 18 And this is standard when there is any new 19 application. And certainly if there had been 20 deficiencies reported to the College, that might have 21 been something that would have been reported to 22 Saskatchewan, and indeed, something that Saskatchewan 23 should have known in considering his application. 24 MS. CAROLYN SILVER: And outside of 25 reporting it to Saskatchewan, would the College have

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1 acted upon this information some manner? 2 DR. ROCCO GERACE: Yes. Yes. Normally 3 if information of this sort comes to our attention, it's 4 my responsibility to consider the infor -- information 5 and determine whether or not there are reasonable 6 probable grounds for the appointment of investigators. 7 I then would put that -- that matter in 8 front of the Executive Committee. 9 COMMISSIONER STEPHEN GOUDGE: What's the 10 threshold for hospital reporting in these circumstances, 11 Dr. Gerace? It may not be easy to articulate, except you 12 know it when you see it, but -- 13 DR. ROCCO GERACE: I -- I actually am not 14 sure. I know that we do get mandatory reports, but I 15 also know that there are cases where, in my view, reports 16 should have been submitted, and -- and we hear about it 17 through another means -- or another -- another source. 18 And so I can't really speak to the source. 19 What I can say, and what I think is -- is quite 20 concerning, is that the reports don't occur as regularly 21 as I think they likely should. 22 COMMISSIONER STEPHEN GOUDGE: Thanks. 23 24 CONTINUED BY MS. CAROLYN SILVER: 25 MS. CAROLYN SILVER: Just turning to you,

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1 Ms. Doris, for a moment. And you mentioned your 2 discussions with Constable Charmley in January of 2002? 3 MS. ELIZABETH DORIS: Yes. 4 MS. CAROLYN SILVER: And there's a memo 5 of January 10th, 2002, that I'd like to ask you about. I 6 don't think it's been assigned a PFP number, but I 7 understand we can put it up on the screen. 8 9 (BRIEF PAUSE) 10 11 MS. CAROLYN SILVER: I'm going to leave 12 that for a moment, because I understood a copy was being 13 brought down to put up on the screen, and I only have one 14 (1) copy. 15 16 (BRIEF PAUSE) 17 18 MS. CAROLYN SILVER: We do have it. 19 Thank you. 20 21 (BRIEF PAUSE) 22 23 MS. CAROLYN SILVER: And I take it you 24 spoke to Constable Charmley in the course of 25 investigating the portion of the complaint that dealt

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1 with Dr. Smith's failure to perform a sexual abuse 2 examination, is that correct? 3 MS. ELIZABETH DORIS: Correct. 4 MS. CAROLYN SILVER: And that was one (1) 5 of the concerns of the complainant that you were 6 following up on? 7 MS. ELIZABETH DORIS: Yes. 8 MS. CAROLYN SILVER: And you spoke with 9 the police in that regard? 10 MS. ELIZABETH DORIS: Correct. 11 MS. CAROLYN SILVER: And in the memo, you 12 state that Mr. Charmley indicates a number of things to 13 you? 14 MS. ELIZABETH DORIS: Yes. 15 MS. CAROLYN SILVER: And they're five (5) 16 bullet points of things that you say Mr. Charmley told 17 you. Does that memo accurately reflect what he did tell 18 you on that day? 19 MS. ELIZABETH DORIS: Yes. 20 MS. CAROLYN SILVER: And the first is 21 that Dr. -- it was his understanding Dr. Smith didn't 22 perform a sexual examination of Jenna XXXX? 23 MS. ELIZABETH DORIS: Yes. 24 MS. CAROLYN SILVER: And then just going 25 down to the last bullet point, you say that Mr. Charmley

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1 indicated the following: 2 "That to the best of his knowledge, no 3 scrapings or swabs or hair samples were 4 taken." 5 Is that what Mr. -- is that what you were 6 told on that day, by Constable Charmley? 7 MS. ELIZABETH DORIS: Yes. 8 MS. CAROLYN SILVER: And are you certain 9 that he told you specifically that there were no 10 scrapings or swabs or hair samples taken? 11 MS. ELIZABETH DORIS: That's what I 12 recollect, yes. 13 MS. CAROLYN SILVER: And did you rely on 14 the information that Constable Charmley gave you during 15 your investigation? 16 MS. ELIZABETH DORIS: Yes, I did. 17 MS. CAROLYN SILVER: And did you have any 18 reason to doubt what he told you, or suspect that the 19 information he gave you was not accurate, or true? 20 MS. ELIZABETH DORIS: No, I did not. 21 MS. CAROLYN SILVER: I take it you later 22 learned that the police had obtained the hair that Dr. 23 Smith had put in an envelope in November of 2001? 24 MS. ELIZABETH DORIS: Correct. 25 MS. CAROLYN SILVER: And what was your

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1 reaction after learning that, knowing that Constable 2 Charmley told you in January of 2002 that there were no 3 hair samples taken? 4 MS. ELIZABETH DORIS: I can tell you when 5 I found out. It was a telephone call from Ms. Waudby in 6 February; mid February. 7 She indicated that she had discovered that 8 a hair had been obtained by the Peterborough police 9 department from Dr. Smith, and she -- she wondered about 10 that. So I indicated to her that I wanted her to put all 11 of her concerns in writing; all of her additional 12 comments in writing. 13 MS. CAROLYN SILVER: Right. 14 MS. ELIZABETH DORIS: And I would provide 15 that to Dr. Smith. 16 MS. CAROLYN SILVER: Okay. And I guess 17 my question is, what was your reaction when you learned 18 that it didn't appear that -- that Constable Charmley was 19 -- gave you accurate information in January of 2002? 20 MS. ELIZABETH DORIS: I was surprised. 21 MS. CAROLYN SILVER: And -- 22 COMMISSIONER STEVEN GOUDGE: You have got 23 two (2) minutes left, Ms. Silver, and I am going to have 24 to be pretty precise about times this afternoon. 25 MS. CAROLYN SILVER: I thought I had four

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1 (4) minutes. I'm looking at that clock. 2 3 CONTINUED BY MS. CAROLYN SILVER: 4 MS. CAROLYN SILVER: Okay. I just have a 5 few more questions. You were asked, Ms. Doris, about a 6 memo that Dr. Carlisle wrote regarding his conversation 7 with Dr. Cairns, and I won't take you back to that, but 8 it's PFP145664, and you were asked whether it would have 9 assisted you in your investigation. 10 And I think your answer was it may have. 11 MS. ELIZABETH DORIS: Mm-hm. 12 MS. CAROLYN SILVER: Can you explain how 13 it may have assisted you in your investigation? 14 MS. ELIZABETH DORIS: If there were any 15 new details in that memo, it may have been helpful. 16 MS. CAROLYN SILVER: Okay. And just two 17 (2) last areas for Dr. Gerace. 18 The first is in Volume II at Tab 77; there 19 is a letter from Dr. -- there is a note of a conversation 20 with Dr. Laxer at the Hospital for Sick Children, and 21 it's PFP148629. And it states that: 22 "Dr. Laxer advised that there has been 23 no indication that Dr. Smith's 24 pathology work was suspect while he was 25 on staff at HSC; however, to assure

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1 themselves they had an external 2 consultant review his work." 3 Knowing what you know now, how do you 4 react to that information from Dr. Laxer? 5 DR. ROCCO GERACE: It seems inconsistent 6 with the correspondence between Dr. Becker and -- and Dr. 7 Smith. 8 MS. CAROLYN SILVER: And then finally, 9 Dr. Gerace, I just want to finish off by following up 10 with some questions the Commissioner asked you about 11 cautions that are given at the College. 12 And a caution was given to Dr. Smith, we 13 know, in this case, and there was a question about the 14 affect on the behaviour of physicians. 15 And I wanted to ask you, you said that the 16 College doesn't keep statistics, but do you know whether 17 a caution versus a discipline process -- what kind of 18 effect that has on the behaviour of a physician? 19 Does one (1) have a greater or lesser 20 effect than another? Or do you know? 21 DR. ROCCO GERACE: Well, I don't really 22 know that. I think I said I -- I wasn't aware of 23 statistics in respect to the effect of cautions. 24 I -- I would suggest that a discipline 25 hearing being held in public, and -- and published would

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1 be a little more concerning to a physician than a 2 caution, not minimizing the effect of a caution. 3 I think both of them -- and again, it 4 would depend on the individual doctor. I would think the 5 average doctor who receives a caution would -- would take 6 that very, very seriously. There are doctors who get 7 multiple cautions who ultimately go to discipline based 8 on a pattern of behaviour. 9 Clearly, in those cases it may not have 10 worked. There are doctors who go to discipline on 11 numerous occasions. And it seems not to work in terms of 12 altering their behaviour. 13 MS. CAROLYN SILVER: And does the College 14 look at a doctor's history in terms of how many cautions 15 they've had or discipline proceedings in making a 16 decision of how to dispose of a complaint? 17 DR. ROCCO GERACE: The -- the committee - 18 - the committee will -- will look at that history in -- 19 in making its determination, and indeed, if there is 20 behaviour that is concerning to the committee, the 21 committee will advise the doctor in a letter that 22 accompanies the decision saying, This is concerning 23 behaviour; we would anticipate that it will not occur 24 again. 25 And there is a series -- if -- if indeed,

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1 it is repetitive behaviour, there are a series of letters 2 that will then form the basis for the doctor's referral 3 to a discipline hearing, if indeed that -- that is their 4 decision. 5 MS. CAROLYN SILVER: And I guess just my 6 last question. In your view in having worked at the 7 College, in your experience, can a reprimand have the 8 desired affect in certain cases or as a discipline 9 proceedings when a doctor's -- in terms of affecting a 10 doctor's behaviour? 11 DR. ROCCO GERACE: It can and -- and it 12 also cannot. It -- it can, I think, serve as a notice to 13 the doctor and affect their behaviour subsequently, but 14 in some cases it seems to have no affect. 15 MS. CAROLYN SILVER: Okay. Thank you. 16 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 17 Silver. 18 Ms. Baron...? 19 20 CROSS-EXAMINATION BY MS. ERICA BARON: 21 MS. ERICA BARON: Dr. Gerace, I just have 22 a few questions for you about the Panel of Assessors that 23 was selected by the College to review the three (3) cases 24 that were before it for consideration. And I'm one (1) 25 of the lawyers who acts for Dr. Smith in this case.

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1 I'm wondering if you can first turn up Dr. 2 Cohle's CV which is at Tab 9 of Volume III? It's 3 PFP147943. And Mr. Centa took you to the fact that Dr. 4 Cohle was a forensic pathologist practising in Michigan, 5 and I just wanted to review with you briefly that the 6 College understood that in order to have that 7 designation, he had undertaken a year of post-graduate 8 training in forensic pathology at the Institute of 9 Forensic Sciences in Dallas, Texas? 10 DR. ROCCO GERACE: I -- I see that 11 written here. I was not aware of that until you pointed 12 it out, but, yes. 13 MS. ERICA BARON: So were you not 14 involved in -- in the selection of the individuals for 15 the Panel of Assessors? 16 DR. ROCCO GERACE: I -- I was not. I was 17 not. 18 MS. ELIZABETH DORIS: Okay. Ms. Doris, 19 were you involved in that selection process? 20 MS. ELIZABETH DORIS: I was not involved 21 in the decision. It was -- 22 MS. ERICA BARON: So I -- I take it 23 though that -- that you'll -- you'll agree with me that 24 his resume does appear to reflect the fact that he did 25 have both the year of forensic pathology, post-graduate

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1 training, Dr. Gerace -- 2 DR. ROCCO GERACE: Yes. 3 MS. ERICA BARON: -- as well as the -- 4 his specialty boards in forensic pathology? 5 DR. ROCCO GERACE: Yes. 6 MS. ERICA BARON: And in addition to 7 that, if you turn to page 3 of his resume, you'll also 8 see that there is reference to the fact that he was 9 involved in teaching pathology residents in their 10 forensic rotation? 11 DR. ROCCO GERACE: Yes. 12 MS. ERICA BARON: And then just turning 13 forward to page 5. This is a list of his publications 14 that Dr. Cohle had been involved with. And at Item 42, 15 you'll see that he co-authored a -- a textbook entitled, 16 "Sudden Death in Infancy, Childhood, and Adolescence"? 17 DR. ROCCO GERACE: Yes. 18 MS. ERICA BARON: And I take it you would 19 agree with me, not having been involved in the selection 20 process, but with the benefit of having reviewed the CV 21 now, that that placed Dr. Cohle in a -- in a good 22 position to review the cases in issue in this case 23 because he had experience and expertise in -- expertise 24 in both forensic pathology and its interplay with 25 pediatrics?

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1 DR. ROCCO GERACE: Yes. 2 MS. ERICA BARON: All right. And then 3 just turning briefly to Dr. Denmark's CV, which is found 4 at Tab 10 of Volume III. It's PFP147927. And Mr. Centa 5 pointed out that he -- at the time of this CV, was the 6 Deputy Chief Medical Examiner in the Province of Ontario, 7 but you'll see under his post-graduate qualifications is 8 referenced to a Diploma of Medical Jurisprudence. It's - 9 - it's the -- sort of the second heading in -- in his 10 resume under -- 11 DR. ROCCO GERACE: Yes, yes. 12 MS. ERICA BARON: -- post-graduate 13 qualifications. And you understand that that's the UK 14 equivalent of the forensic certification. 15 DR. ROCCO GERACE: I did not know that, 16 but will take your word for it. 17 MS. ERICA BARON: All right. It was your 18 impression that Dr. Denmark was a forensic pathologist. 19 DR. ROCCO GERACE: I'm sorry, I hadn't 20 reviewed this CV until this moment. I -- I didn't look 21 at it and had no -- no role in selecting him. 22 MS. ERICA BARON: But you were aware of - 23 - you're aware now of -- that the assessors were selected 24 and -- and that there were three (3) assessors, and your 25 understanding is that two (2) of them were forensic

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1 pathologists and one (1) was a pediatric pathologist. 2 DR. ROCCO GERACE: That's correct. 3 MS. ERICA BARON: And Dr. Denmark was one 4 (1) of those two (2) forensic pathologists. 5 DR. ROCCO GERACE: That's correct. 6 MS. ERICA BARON: Okay. Thank you. 7 Those are my questions. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 9 Baron. 10 Mr. Wardle...? 11 12 CROSS-EXAMINATION BY MR. PETER WARDLE: 13 MR. PETER WARDLE: Ms. Mann, Ms. Doris, 14 Dr. Gerace, my name is Peter Wardle and I'm counsel for a 15 number of families affected by findings made by Dr. Smith 16 in a number of cases. 17 And in fact, all of my families were the 18 subject of proceedings before the College. I act for the 19 Gagnon family, I act for DM and his daughter, SM, and I 20 also act for Brenda Waudby. 21 And I want to start with you, Ms. Mann, 22 and take you back to the questions this morning about the 23 initial complaint from DM that was received in the fall 24 of 1991, and do you recall My Friend, Mr. Centa, took you 25 through the original complaint letter?

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1 MS. MICHELE MANN: Yes, I do recall. 2 MR. PETER WARDLE: And do you recall that 3 at the end that the letter said, and I'm paraphrasing, 4 "Our case has been a tragedy, but let's 5 not have this repeat itself." 6 Do you recall those words in the complaint 7 letter? 8 MS. MICHELE MANN: I recall seeing that 9 in the complaint letter. 10 MR. PETER WARDLE: And do you agree with 11 me that, in retrospect, that's a very prescient comment, 12 given what we've been examining over the last few months, 13 correct? 14 MS. MICHELE MANN: Correct. 15 MR. PETER WARDLE: Now, I took you to say 16 this morning that when you got -- sorry, you got the file 17 four (4) years later, correct? 18 MS. MICHELE MANN: In the fall of 1996, I 19 believe, yes. 20 MR. PETER WARDLE: And you're unable to 21 explain the delay, except to say that it's not something 22 that would normally happen with a complaint file at the 23 College, correct? 24 MS. MICHELE MANN: That's -- that's 25 correct.

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1 MR. PETER WARDLE: And when you got the 2 file, you saw Dr. Smith's letter of May 1992 in which he 3 made the comments about his so-called discussions with 4 Justice Dunn, and you were surprised and concerned by 5 those comments. Correct? 6 MS. MICHELE MANN: Correct. 7 MR. PETER WARDLE: And what I took you to 8 say was that if you believed the comments, the concerns 9 were with Justice Dunn, ie; that he might have done 10 something inappropriate, correct? 11 MS. MICHELE MANN: That's correct. 12 MR. PETER WARDLE: And then you said to 13 My Friend, you had no bel -- reason to believe at the 14 time that the statement was untrue; that is the statement 15 by Dr. Smith, do you recall that? 16 MS. MICHELE MANN: I believe I recall I 17 said that, yes. 18 MR. PETER WARDLE: Okay. And then My 19 Friend did take you to a response from the complainant, 20 DM, and I'm not going to turn that up, but he makes you 21 provide DM's -- sorry, you provide Dr. Smith's letter to 22 the complainant, and he writes a response back in which 23 he suggests that Dr. Smith had been untruthful, correct? 24 MS. MICHELE MANN: Correct. 25 MR. PETER WARDLE: And I took you to say

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1 that no attempts were made by the College to investigate 2 that issue further, correct? 3 MS. MICHELE MANN: That's correct. 4 MR. PETER WARDLE: Okay. And -- and you, 5 sort of, closed this discussion with My Friend by saying: 6 "If it was true, it was a judicial 7 issue." 8 Do you recall saying that? 9 MS. MICHELE MANN: Something to that 10 effect or for the Criminal Justice System, yes. 11 MR. PETER WARDLE: Correct. But would 12 you agree with me that if it was false, it would have 13 been an issue for your body, correct? 14 MS. MICHELE MANN: If Dr. Smith's 15 statement about this was false -- 16 MR. PETER WARDLE: Correct. 17 MS. MICHELE MANN: -- it would have been 18 -- yes, it would have been something that I would want to 19 have looked into further. 20 MR. PETER WARDLE: It would have been a 21 false and misleading statement to his regulating body, 22 correct? 23 MS. MICHELE MANN: Correct. 24 MR. PETER WARDLE: And you would have 25 wanted to treat that very seriously.

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1 MS. MICHELE MANN: Correct. 2 MR. PETER WARDLE: So why wasn't it 3 investigated further? 4 MS. MICHELE MANN: Again, it was a matter 5 that I felt because it was involving the actions of a 6 person acting in their capacity as a Judge in a -- in a 7 criminal trial, that it was something for the Criminal 8 Justice System to deal with, and not something that fell 9 into our jurisdiction as being looking into medical 10 concerns -- the standard of practice of medicine. 11 MR. PETER WARDLE: Well, would it be -- 12 would it be accurate to say that at that time you had no 13 reason to dispute Dr. Smith's veracity? 14 MS. MICHELE MANN: That's fair enough to 15 say. 16 MR. PETER WARDLE: And so you took no 17 steps to investigate it further, and you didn't pass it 18 on to any other body that might have had jurisdiction to 19 look into it, correct? 20 MS. MICHELE MANN: No. 21 MR. PETER WARDLE: Let me -- let me go 22 take a step forward, if I may then and I want to ask 23 primarily Ms. Doris but perhaps, all of you some 24 questions about the process that led up to the interview 25 of Dr. Smith by the Panel of Assessors in June of 2002.

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1 So we're now moving forward in time. 2 And I want to take you first, Ms. Doris, 3 if I may, to a letter, and it's in Volume II at Tab 34, 4 it's PFP144922. 5 Now, Ms. Mann, just a question for you. 6 You had interviewed Dr. -- Dr. Young briefly in 1998? Do 7 I have that correct? 8 MS. MICHELE MANN: I'd have to refer to 9 the actual document. I believe it was 1997. 10 MR. PETER WARDLE: 1997. 11 MS. MICHELE MANN: I believe. 12 MR. PETER WARDLE: So now, Ms. Doris, 13 we're in the process that's leading up to the meeting of 14 Dr. Smith with -- in June of 2002 with the Panel of 15 Assessors or at least the Chair of that Panel, and this 16 letter comes in to you from Dr. Young. 17 And do you recall receiving this letter? 18 MS. ELIZABETH DORIS: I have seen this 19 letter, yes. 20 MR. PETER WARDLE: It appears to have 21 been one (1) of the documents that was provided to the 22 Complaints Committee. And the reason I know that is 23 because it's in the index of documents for the Complaints 24 Committee. And I can take you to that if you don't trust 25 me on that, but --

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1 MS. ELIZABETH DORIS: No, it's not 2 necessary. 3 MR. PETER WARDLE: All right. Do you 4 know if this -- do you know if this letter was provided 5 to the Panel of Assessors? 6 MS. ELIZABETH DORIS: I would have to 7 look through the indexes that -- the indices that went to 8 the Panel of Assessors before I answer that. 9 MR. PETER WARDLE: All right. And I'm 10 not sure if we have those in the material. Mr. Centa is 11 going to try and figure it out for us. 12 But just looking at this letter, did you 13 know at the time you received this letter, that since 14 January of 2001, Dr. Smith had not been allowed by the 15 Office of the Chief Coroner to conduct coroner's 16 autopsies in criminally suspicious cases? 17 MS. ELIZABETH DORIS: I did not know 18 that. 19 MR. PETER WARDLE: And is it fair to say 20 that when you read through this letter that that 21 information is in no way communicated by Dr. Young, 22 correct? 23 MS. ELIZABETH DORIS: Correct. 24 MR. PETER WARDLE: Nor does Dr. Young 25 communicate that his office has any concerns about Dr.

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1 Smith's performance or competence, correct? 2 MS. ELIZABETH DORIS: Correct. 3 MR. PETER WARDLE: In fact, would it also 4 be fair to say that anyone reading this letter would say 5 that the Office of the Chief Coroner effectively stands 6 behind their pathologist, is that fair? 7 MS. ELIZABETH DORIS: I would have to re- 8 read the contents of this letter before I answer that 9 question. 10 MR. PETER WARDLE: Do you mind just 11 taking a moment? 12 13 (BRIEF PAUSE) 14 15 MS. ELIZABETH DORIS: And could you pose 16 the question one (1) more time? 17 MR. PETER WARDLE: I'll make it a little 18 simpler. 19 MS. ELIZABETH DORIS: Yeah. 20 MR. PETER WARDLE: Generally speaking, 21 it's a supportive letter -- 22 MS. ELIZABETH DORIS: Yes, it is. 23 MR. PETER WARDLE: -- correct? And 24 anyone reading it would think that the Office of the 25 Chief Coroner has no issues surrounding Dr. Smith's

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1 competence or performance of his job functions -- 2 MS. ELIZABETH DORIS: Yes. 3 MR. PETER WARDLE: -- correct? 4 And you would agree with me, Ms. Doris, 5 that if you'd received information at that time that, in 6 fact, Dr. Smith was no longer performing coroner's 7 autopsies in criminally suspicious cases that would have 8 lead you to take other steps, correct? 9 MS. ELIZABETH DORIS: I would have 10 included that information in my investigative report. 11 MR. PETER WARDLE: And you, for example, 12 might have wanted to interview Dr. Young or Dr. Cairns, 13 correct, and find out what was going on with Dr. Smith at 14 the Coroner's Officer, correct? 15 MS. ELIZABETH DORIS: That's possible. 16 MR. PETER WARDLE: And Dr. Gerace, if I 17 could direct this question to you, would you agree with 18 me that had that information made its way to the 19 Complaints Committee, that would have been information 20 that would have relevant to their determinations? 21 DR. ROCCO GERACE: Yes. 22 MR. PETER WARDLE: In fact, highly 23 relevant depending on the circumstances, correct? 24 DR. ROCCO GERACE: I think -- I think the 25 fact that we -- the facts that we now know surrounding

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1 this letter, the fact that -- that firstly, it was 2 written by counsel for another party and signed by Dr. 3 Young. Secondly, that there were known concerns around 4 the performance of Dr. Smith at the time. 5 And thirdly, that the concerns that had 6 been presented to the Coroner's Office via the College 7 thus far had not been considered fully. All of those 8 points would have prompted a great deal of concern to me 9 in respect to this letter. 10 MR. PETER WARDLE: Is it -- is it fair to 11 say, Dr. Gerace, that, in retrospect, this letter is 12 somewhat misleading? 13 DR. ROCCO GERACE: I -- I find this 14 letter somewhat disappointing in -- in -- for the reasons 15 that I stated. 16 MR. PETER WARDLE: And let's go forward a 17 little bit, if I may, on the same subject. And I'd like 18 to take all of you to Volume II, Tab 47. And this is 19 PFP147797, I believe. 20 So now we're two (2) months later. This 21 is, the meeting of -- where Dr. Smith is interviewed by 22 Dr. Cohle who, as I understand it, was the Chair of this 23 assessment panel, correct, Ms. Doris? 24 MS. ELIZABETH DORIS: Correct. 25 MR. PETER WARDLE: And you were at this

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1 meeting, correct? 2 MS. ELIZABETH DORIS: Yes, I was. 3 MR. PETER WARDLE: And Dr. Smith was 4 there together with his counsel for McCarthy's, correct? 5 MS. ELIZABETH DORIS: Correct. 6 MR. PETER WARDLE: And Dr. Smith had been 7 given a list of questions in advance to answer, correct? 8 MS. ELIZABETH DORIS: Yes. 9 MR. PETER WARDLE: So let's just have a 10 look at the transcript or the -- these -- this isn't a 11 transcript, obviously. Who -- who would have typed up 12 these notes, by the way, do you know, Ms. Doris? 13 MS. ELIZABETH DORIS: Ms. Ellen Spiegel 14 (phonetic). 15 MR. PETER WARDLE: And she was one (1) of 16 the participants? 17 MS. ELIZABETH DORIS: She was the 18 recording secretary. 19 MR. PETER WARDLE: Okay. So if we go to 20 the middle of the document, and I'm just going to give 21 you the page number in a moment, at page 12. So under 22 the heading, "General Questions": 23 "Do you feel you have significant 24 forensic training to handle the 25 difficulty of cases that you are now

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1 handling." 2 Do you see that? 3 MS. ELIZABETH DORIS: Yes. 4 MR. PETER WARDLE: And if we go down 5 towards the bottom of the page, you'll see Dr. Smith is 6 talking about various things at -- relating to the 7 Forensic Unit at HSC. And then over the top of the page: 8 "We deal with -- within pure pediatric 9 child abuse, SBS [that would be Shaken 10 Baby Syndrome]. I'm comfortable with 11 that. Last year on trial basis, 12 brought in Dr. David Chiasson, Chief 13 Forensic Pathologist for the province. 14 If the case looked like a homicide, 15 David would come over. Somewhere in 16 autopsy we would determine who was the 17 most responsible pathologist. If one 18 (1) pathologist was doing the abdominal 19 injury, I don't want to do it. He's 20 done it from the start so he will do 21 the autopsy." 22 And then a little further down you can see 23 in terms of his own comfort, he talks about his 24 qualifications. And then the very last bullet -- very 25 last two (2) bullets:

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1 "The science of pathology is better at 2 handling tough forensic cases." 3 Last bullet: 4 "Without bragging, I think I have the 5 ability to handle them given apro -- 6 appropriate support and resources." 7 Now, nowhere in that interchange does Dr. 8 Smith say, does he, that he, in fact, was no longer doing 9 forensic autopsies in criminally suspicious cases, 10 correct? 11 MS. ELIZABETH DORIS: Correct. 12 MR. PETER WARDLE: And in fact, we've 13 heard evidence at this inquiry about the role of Dr. 14 Chiasson after Dr. Smith had been removed from the list 15 of those pathologists doing coroner's autopsies in 16 criminally suspicious cases. 17 And it's very different than the way it's 18 presented here. And again, would that not have been of 19 interest, first of all to the person who conducted this 20 interview, and secondly to the Complaints Committee? 21 And I guess I can ask any of you that 22 question. 23 DR. ROCCO GERACE: Yes. 24 MR. PETER WARDLE: The third area I want 25 to cover in the time I have left deals with this issue

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1 about the hair, and I'm going to ask these questions of 2 you, Ms. Doris. 3 MS. ELIZABETH DORIS: Mm-hm. 4 MR. PETER WARDLE: And first of all, just 5 to set the stage. I understand that from the beginning, 6 the hair was one (1) of the issues that Ms. Waudby wanted 7 investigated, correct? 8 MS. ELIZABETH DORIS: She didn't outline 9 that specifically in her areas of concern. It was 10 mentioned in her initial letter. 11 MR. PETER WARDLE: But I took it that it 12 was one (1) of the iss -- issues that you considered 13 within the investigation? 14 MS. ELIZABETH DORIS: It was -- was -- 15 yeah, under the -- kind of the area of the sexual 16 examination. 17 MR. PETER WARDLE: And just looking at a 18 document that we covered this morning very quickly, at 19 Tab -- Volume II, Tab 37. This is PFP145664. 20 And this is the memo to file from Dr. 21 Carlisle, April 10, 2002. And just to be fair to you, 22 Ms. Doris, the timing of this document, it's the very day 23 before you got a second response from Dr. Smith that 24 dealt with the sampling in the Waudby case. 25 MS. ELIZABETH DORIS: Correct.

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1 MR. PETER WARDLE: Do you recall that? 2 MS. ELIZABETH DORIS: Yes. 3 MR. PETER WARDLE: Okay. So looking at 4 this memo, and My Friend took you to parts of it, but I 5 want to just go through it again. 6 Going to the second page, and perhaps we 7 can start at the bottom of the first page. This is 8 recounting a conversation between Dr. Carlisle and Dr. 9 Cairns, and it says: 10 "Dr. Cairns wished me to tell me 11 secondly that he had discussed the 12 matter with Dr. Smith, and that Dr. 13 Smith had revealed to him what had 14 actually happened." 15 And then it goes on to go through the 16 details of what Dr. Cairns recounted, and then at the 17 very bottom of the paragraph on -- the first paragraph on 18 page 2, it says: 19 "Dr. Cairns states that he had no 20 notice of this prior to Dr. Smith's 21 revelation, but as a result of the 22 revelation, he believed that Dr. Smith 23 would be in some serious difficulty and 24 that he'd not wish -- he did not wish 25 to be party as Chief -- Deputy Chief

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1 Coroner to any deception." 2 And I understood your answer this morning 3 that you do not recall this memo and do not believe that 4 you saw it, correct? 5 MS. ELIZABETH DORIS: I did not see this 6 memo. 7 MR. PETER WARDLE: Okay. If we go to the 8 middle of page 2, there's a -- a paragraph halfway down. 9 It starts: 10 "In speaking to Ms. Doris, the 11 Investigator in this matter, I 12 discovered that it does not, in fact, 13 seem likely that the College would be 14 proceeding in the immediate future. 15 Apparently some consideration is being 16 given to having the Chair of the 17 Complaints Committee interview Dr. 18 Smith, and I suggested to Ms. Doris 19 that it be carefully considered with 20 the prosecutor before any plans are 21 finalized or communicated." 22 And then the next sentence reads: 23 "In addition, since it seems highly 24 possible, if not probable -- probably, 25 that Dr. Smith has submitted a response

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1 to the Waudby complaint which at -- is 2 at best misleading and at worse 3 disingenuous, if not untrue. We 4 discussed the advisability at some 5 point of taking that up with Dr. 6 Smith." 7 Now I must say I read this to suggest that 8 you and Dr. Carlisle had had a conversation about this 9 issue. Is that fair? 10 MS. ELIZABETH DORIS: We had a 11 conversation about -- about the hair and the sampling 12 because there just had been -- there was a media -- the 13 media had come out with that at the time, so we discussed 14 that. 15 So there was nothing new about the hair. 16 MR. PETER WARDLE: Well, do you recall in 17 that conversation Dr. Carlisle ever telling you that he'd 18 had a telephone call from the Deputy Chief Coroner? 19 MS. ELIZABETH DORIS: Yes. 20 MR. PETER WARDLE: And what did he tell 21 you about that call? 22 MS. ELIZABETH DORIS: He -- he -- I do 23 not recall specifics in the meeting. I recall him saying 24 something like there was a level -- there was frustration 25 from the Coroner's Office, that's what I recall.

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1 MR. PETER WARDLE: All right. And just 2 going further and just thinking a little bit about the 3 information you received about the hair, and I'm not 4 going to go through it all again because there's a lot of 5 documents involved -- 6 MS. ELIZABETH DORIS: Mm-hm. 7 MR. PETER WARDLE: -- but you eventually 8 did get some information from the Peterborough Police 9 Department, correct? 10 MS. ELIZABETH DORIS: Yes. 11 MR. PETER WARDLE: And you got a 12 statement from the Identification Officer, Officer 13 Kirkland? 14 MS. ELIZABETH DORIS: Yes. 15 MR. PETER WARDLE: A handwritten 16 statement; do you recall that? 17 MS. ELIZABETH DORIS: Yes. Yes, I do. 18 MR. PETER WARDLE: And I've looked at the 19 statement and I -- we can turn it up if you wish but it 20 doesn't actually say anything about the hair. 21 MS. ELIZABETH DORIS: No, it doesn't. 22 MR. PETER WARDLE: And the only other 23 document you appear to have gotten from the Peterborough 24 Police Department bearing on this issue is -- and I'll 25 just take you to it, it's Volume III, Tab 51, PFP043639.

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1 And do you recall that this was a document 2 you received at some point from the Peterborough Police 3 Department and that it was passed on to the assessment 4 panel? 5 MS. ELIZABETH DORIS: Yes, it was. 6 MR. PETER WARDLE: And this certainly 7 says that -- in the middle of the page -- that Constable 8 Charmley had spoken to Dr. Smith, Dr. Smith recalled the 9 hair, and it says: 10 "He recalled it to be more like a fibre 11 and said police did not feel it was 12 significant to seize so he kept it in 13 his files." 14 And then down at the -- towards the bottom 15 it says: 16 "On November 19, 2001, Constable 17 Charmley spoke to now retired Constable 18 Kirkland. He had no recollection and 19 does not believe that he would have 20 told Dr. Smith that such a finding was 21 not significant." 22 So, I take it that what you had at the 23 time this matter went to the assessment panel, was you 24 had this document, correct? 25 MS. ELIZABETH DORIS: Yes.

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1 MR. PETER WARDLE: And you had the three 2 (3) page handwritten document from Constable Kirkland? 3 MS. ELIZABETH DORIS: Yes. 4 MR. PETER WARDLE: You had the 5 communication you've told us about with Dr. Carlisle, and 6 you didn't have anything else relating to the hair except 7 Dr. Smith's letters on that subject, correct? 8 MS. ELIZABETH DORIS: And Ms. Waudby's 9 letters. 10 MR. PETER WARDLE: Correct. Did you 11 think at that time that it might have been useful to 12 speak to Officer Kirkland and try to nail this down a 13 little bit better? 14 MS. ELIZABETH DORIS: No. 15 MR. PETER WARDLE: And in retrospect, is 16 that something -- and, you know, I realize that we're now 17 looking at everything, you know, in -- through a 18 different lens, but in retrospect is that something you 19 would have wanted to pursue? 20 MS. ELIZABETH DORIS: He indicated he 21 provi -- he had no recollection of it, that's what -- 22 the question I would have put to him -- 23 MR. PETER WARDLE: Because to be fair, 24 the evidence he gave here the other day was a little 25 stronger than that. It was that it --

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1 MS. ELIZABETH DORIS: Okay. 2 MR. PETER WARDLE: -- it wouldn't have 3 been consistent with his training and his experience not 4 to accept a sample. 5 MS. ELIZABETH DORIS: So it's more -- it 6 is just strongly worded. 7 MR. PETER WARDLE: It was a little more 8 strongly worded, I -- to be -- to be blunt about it, than 9 I think My Friend put to you this morning. 10 And in retrospect, would it have been a 11 good idea to speak to him, do you think? 12 13 (BRIEF PAUSE) 14 15 MS. ELIZABETH DORIS: In retrospect, it 16 may have helped the Complaints Committee. 17 MR. PETER WARDLE: And then the last area 18 I want to cover, I want to just deal with the interview 19 again. 20 And perhaps I'm focussing on the interview 21 because it seems clear from what I'm reading that the 22 Complaints Committee relied to a large extent on the 23 Panel of Assessors. 24 Is that fair? 25 MS. ELIZABETH DORIS: Yes.

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1 MR. PETER WARDLE: Okay. So back to the 2 interview at -- and I'm going to ask that it be turned 3 up. It's at Volume II, Tab 47. 4 And first of all, Ms. Doris, just taking 5 you to page 7, and dealing with the hair, I don't want to 6 take you to Dr. Smith's prior letters, but in the prior 7 letter of -- in April, he had said that the police didn't 8 accept the sample; he used the word "accept", I think is 9 the word. 10 You'll see, if we look at what's here in 11 the writ -- on the printed page is Dr. Smith says, 12 according to these notes: 13 "The officer refused to take hair 14 sample, and blood, and stomach 15 contents." 16 And again, perhaps the subtleties of this 17 would not have been apparent to those in the meeting. 18 But -- but that's a -- that's a little bit 19 different than, it wasn't accepted for analysis, correct? 20 MS. ELIZABETH DORIS: Yes. 21 MR. PETER WARDLE: All right. And you'll 22 see it then goes on to -- to say: 23 "I kept the hair because nothing in 24 meeting with police that hair had any 25 value. I just kept it in my file, I

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1 took it to Court with me." 2 And I just wanted to go over the page, and 3 this is perhaps of more interest to us and to the 4 Commission than to you, Ms. Doris, but I want to just go 5 to the comment at the bottom of page 8. 6 And you'll see Dr. Cohle had asked about 7 timing of injuries. And at the bottom of the page it's 8 reported that Dr. Smith says: 9 "My position all the time in meetings 10 with police and regional coroners is 11 that the (killer), [in brackets], was 12 someone other than the babysitter 13 because is was not the twenty-four (24) 14 hour mark. The real issue is that the 15 mother left home eight (8) to nine (9) 16 hours prior to the child's death; she 17 was to come back within the hour, but 18 came back eight (8) or nine (9) hours 19 later." 20 And then over the page: 21 "Mom left Jenna with [blocked out] at 22 5:00 p.m. Jenna was dying around 12:30 23 a.m." 24 So it seems that Dr. Smith in this 25 interview went out of his way to point out that the

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1 mother -- he still considered the mother to be the 2 logical suspect and that one (1) of the factors in his 3 mind was the fact that she had gone out for an hour, but 4 not come back until many hours later. 5 Would you agree with that? 6 MS. ELIZABETH DORIS: Yes. 7 MR. PETER WARDLE: And then over the page 8 to page 10, and I'm going to just start perhaps with the 9 question at the bottom of page 9. You'll see there's a 10 question from Dr. Cohle, and he asks some questions 11 about, really, consultation, and then you'll see it has 12 at page 10 Dr. Smith's response: 13 "What we do as a standard is hold a 14 combined clinical pathological 15 conference where there will be twenty 16 (20), thirty (30) people in the room. 17 A forensic pathologist usually helps us 18 with pediatric cases from intensive 19 care. The case is discussed about two 20 (2) or three (3) weeks after we have 21 the autopsy." 22 And again, we've heard some evidence 23 before this Inquiry that's very different than what Dr. 24 Smith appears to have said, if these notes are accurate. 25 And I guess perhaps a general question for

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1 you, Ms. Doris, and for you, Dr. Gerace, first of all, 2 the poor Dr. Cohle doing this assessment, he wouldn't be 3 in a position to evaluate Dr. Smith's credibility, would 4 he? 5 DR. ROCCO GERACE: He would not. 6 MR. PETER WARDLE: All right. And 7 because this matter never proceeded to discipline, the 8 Complaints Committee really wasn't in the best position 9 to evaluate his credibility, either, correct, because 10 they had to rely on a paper record? 11 DR. ROCCO GERACE: The Complaints 12 Committee generally has difficulty evaluating credibility 13 in the absence of -- of clear indications that it's an 14 issue. 15 MR. PETER WARDLE: And do you agree with 16 me that some of these con -- comments, if it now appears, 17 from evidence at this Commission, that they in fact are 18 incorrect, it raises serious professional issues about 19 this position, does it not? 20 DR. ROCCO GERACE: I -- I would -- I 21 would certainly agree that there are inconsistencies in 22 the various documents that are here. 23 24 (BRIEF PAUSE) 25

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1 MR. PETER WARDLE: And I take it, Ms. 2 Doris, that after this interview there were no -- the 3 investigation would have been concluded at that point, 4 there was no further investigation following this 5 interview? 6 MS. ELIZABETH DORIS: Well, Dr. Smith had 7 an opportunity to -- I believe he responded. There was a 8 letter from Dr. Smith that -- that was about it. 9 MR. PETER WARDLE: All right. Those are 10 all my questions. Thank you very much. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 12 Wardle. 13 We're not quite at the break yet, so, Ms. 14 Fraser, you're next. 15 16 CROSS-EXAMINATION BY MS. SUZAN FRASER: 17 MS. SUZAN FRASER: Good afternoon. My 18 name is Sue Fraser, and I'm here on behalf of a 19 children's rights organization called Defence for 20 Children International, and I have five (5) minutes for 21 questions, so I'll try to -- not to speak to quickly, but 22 I'm going to try and move quickly. 23 Dr. Gerace, it's fair to say that as part 24 of what the College does, in terms of public protection, 25 is to maintain a registry of its members history, so that

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1 the public can actually access discipline history if it 2 contacts the College either by telephone or through its 3 website? 4 DR. ROCCO GERACE: There is a -- there is 5 a listing of disciplinary findings on the website and can 6 be accessed by calling the College, that's correct. 7 MS. SUZAN FRASER: All right. But in the 8 -- in respect of cautions, that is not something that is 9 publically available if someone were to look at a 10 registration history either through their website or by 11 contacting the College. 12 Is that -- 13 DR. ROCCO GERACE: That's -- 14 MS. SUZAN FRASER: -- fair? 15 DR. ROCCO GERACE: -- that's correct. 16 MS. SUZAN FRASER: All right. And so 17 while it may be serious for somebody to appear before the 18 Complaints Committee to be cautioned, or to receive a 19 caution in another fashion, the significant difference 20 between that an discipline is -- is the degree to which 21 it's made public. 22 Is that fair? 23 DR. ROCCO GERACE: That is a significant 24 difference. 25 MS. SUZAN FRASER: All right. Not the

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1 only one, clearly. 2 Now just in terms of -- 3 DR. ROCCO GERACE: Could I just add that 4 that's not a decision of the College. 5 MS. SUZAN FRASER: Yes. 6 DR. ROCCO GERACE: That that is a factor 7 of the legislation. 8 MS. SUZAN FRASER: Right. Right. And 9 I'm sorry if I didn't make that clear, but I -- I 10 understood that personally. And so that you don't have a 11 -- you don't -- that's not something the College can 12 decide; there would be legislative change in order for 13 that case to be different? 14 DR. ROCCO GERACE: That's correct. And 15 indeed when -- in 19 -- about the year 2000, the -- the 16 Health Professions Regulatory Advisory Council made a 17 recommendation that verbal cautions -- cautions in person 18 be part of the pubic record. 19 That recommendation was made to government 20 in -- in consideration of legislative change. So that 21 has been considered. It was the view of the legislature 22 that that was not appropriate. 23 MS. SUZAN FRASER: All right. 24 COMMISSIONER STEPHEN GOUDGE: Is that 25 still the College position?

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1 DR. ROCCO GERACE: The College did -- did 2 not take a position. I can't recall. That was not the 3 College's position, that was the position of -- of HPRAC. 4 COMMISSIONER STEPHEN GOUDGE: I see. 5 DR. ROCCO GERACE: That was not a College 6 position. 7 COMMISSIONER STEPHEN GOUDGE: I see. The 8 College has no position on that particular -- 9 DR. ROCCO GERACE: Not at the present 10 time that I'm aware of, no. 11 12 CONTINUED BY MS. SUZAN FRASER: 13 MS. SUZAN FRASER: And is that something 14 that you could personally support outside of your 15 position with the College? 16 DR. ROCCO GERACE: I'm here on behalf of 17 the College, I'm not sure it would be appropriate for me 18 to express -- 19 MS. SUZAN FRASER: All right. 20 DR. ROCCO GERACE: -- personal views. 21 MS. SUZAN FRASER: All right. And when 22 another college, like the Saskatchewan, contacts you for 23 information, you talked about the mandatory reporting 24 information that would have been available if that -- if 25 things had gone that way with the Hospital for Sick

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1 Children. 2 Would information relating to a college be 3 available to another college in another jurisdiction? 4 DR. ROCCO GERACE: Information related to 5 a college, or to a caution? 6 MS. SUZAN FRASER: I'm sorry, to a -- 7 about a caution. So it's not generally available to the 8 public -- 9 DR. ROCCO GERACE: That's correct. 10 MS. SUZAN FRASER: -- information about a 11 caution; would it be available to another college? 12 DR. ROCCO GERACE: Generally speaking in 13 a certificate of standing, a caution represents the 14 completion of the matter and that is not generally 15 reported. 16 MS. SUZAN FRASER: All right. I'm 17 interested, Mr. Gerace, if the Complaint's Committee has 18 dealt with the matter, and subsequently to a matter -- to 19 the matter being dealt with, information becomes 20 available that would significantly have made a dif -- or 21 which appears to -- I don't know why I can't string my 22 words together, but I'll try and slow down, that might be 23 part of the problem. 24 If information comes to the College -- 25 College's attention, that calls into question whether the

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1 Complaint's Committee had all the information available 2 to it, is there a way in which an investigation can be 3 reopened? 4 Does the College have its own 5 jurisdiction, or does it require a complaint by an 6 individual? 7 DR. ROCCO GERACE: I -- I would have to 8 get help with that. I'm not sure of the answer to that. 9 There's, I think, some indication that once a complaint 10 has been completed and closed, that the College no longer 11 has jurisdiction, but I would -- I would have to ask for 12 help in that. 13 MS. SUZAN FRASER: All right. And in 14 terms of the jurisdictional component -- I'm shifting 15 gears to another area -- in terms of the jurisdiction of 16 the College over coroners acting in their administrative 17 capacities versus in a -- providing medical treatment or 18 acting in a medical capacity, I'm interested, Dr. Gerace, 19 if you have somebody who is a physician acting in the 20 capacity of Chief Coroner. 21 And I'm not going to make specific 22 reference to Dr. Young, but hypothetically, you have 23 somebody who's acting in that chief position of public 24 trust, but also wearing the hat of Chief Coroner who 25 appears to have mislead a -- the regulatory college,

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1 their own regulator college. 2 Would that be something that the College 3 would take jurisdiction over? 4 DR. ROCCO GERACE: The College will take 5 -- will receive any complaints from members of the 6 public. And the College will -- will certainly consider 7 any complaints about any doctor from a member of the 8 public. 9 MS. SUZAN FRASER: All right. So in the 10 case of somebody whose duties -- who are a physician, but 11 whose duties might not be day to day providing of medical 12 treatment, the College does receive complaints and does 13 deal with complaints about those physicians? 14 DR. ROCCO GERACE: Yes, yes. 15 MS. SUZAN FRASER: All right. Thank you. 16 Thank you, Mr. Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 18 Fraser. 19 Why don't we not rise now, and we will 20 come back just before 3:30 and begin with you, Ms. 21 Simpson. 22 23 --- Upon recessing at 3:11 p.m. 24 --- Upon resuming at 3:30 p.m. 25

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1 THE REGISTRAR: All rise. Please be 2 seated. 3 COMMISSIONER STEPHEN GOUDGE: Okay, all 4 set. And Ms. Simpson? 5 6 CROSS-EXAMINATION BY MS. VANORA SIMPSON: 7 MS. VANORA SIMPSON: Thank you, 8 Commissioner. Dr. Gerace, I'm going to be directing my 9 questions to you. My name is Vanora Simpson, and I am 10 for the Association and Defence of the Wrongly Convicted. 11 And my questions are going to explore a little bit the 12 role that a licensing authority or professional 13 association has in setting guidelines or standards for 14 physicians when they give expert evidence in court. 15 And I'd start by taking you, if I could, 16 to Volume II, Tab 7. It's PFP147154. And this is a 17 letter dated in the year 2000 from you predecessor, which 18 sets out the view that the College does not have a role 19 in policing or supervising the testimony of physicians 20 given as experts in court. 21 You're familiar with that letter? 22 DR. ROCCO GERACE: I am. 23 MS. VANORA SIMPSON: I take it from what 24 you said before lunch today that is no longer the 25 College's position and it's not your position?

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1 DR. ROCCO GERACE: The College has, as I 2 mentioned before lunch, taken action in respect to what 3 was felt to be misconduct in the course of -- of a 4 physician providing expert testimony. 5 MS. VANORA SIMPSON: I'd like to take you 6 to two (2) court decisions that explore this issue 7 somewhat further. The first one (1) is at Volume III of 8 your materials, Tab number 26. 9 DR. ROCCO GERACE: I'm sorry, tab...? 10 MS. VANORA SIMPSON: 26. 11 DR. ROCCO GERACE: Thank you. 12 MS. VANORA SIMPSON: Austin versus the 13 American Association of Neurological Surgeons. And to 14 simplify greatly, the question is whether the Association 15 could appropriately sanction or suspend a member based on 16 testimony that Dr. Austin gave in court. 17 I'd like to take you specifically to page 18 6 on the lefthand side, halfway through the first 19 paragraph. Justice Posner (phonetic) writes: 20 "The Association had an interest. The 21 community at large had an interest in 22 Austin's not being able to use his 23 membership to dazzle judges and juries 24 and deflect the close and sceptical 25 scrutiny that shoddy testimony

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1 deserves. It is no answer that judges 2 can be trusted to keep out such 3 testimony; judges are not experts in 4 any field except law. Much escapes us, 5 especially in a highly technical field 6 such as neurosurgery." 7 While this, I understand, is a voluntary 8 association, that you'd agree the same notion applies to 9 the College; that physicians who testify would cite their 10 College membership as a reason for their expertise and 11 their credibility? 12 DR. ROCCO GERACE: That would certainly 13 be one (1) indication of their status, yes. 14 MS. VANORA SIMPSON: And would you agree 15 with these comments from Justice Posner in general? 16 DR. ROCCO GERACE: I -- I must admit I 17 was given a package of material yesterday and have not 18 had an opportunity to review the material, but based on 19 what you've said generally, I think it is -- is certainly 20 incumbent on any physician that they represent themselves 21 appropriately and provide testimony that's within the 22 their scope of expertise and do so honestly. 23 MS. VANORA SIMPSON: I'd like to take you 24 to another decision, this is a British decision in the 25 Meadow (phonetic) case, it's at Tab 24 of Volume III,

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1 PFP302749. 2 And again, to simplify greatly, the issue 3 here was whether Sir Meadow had immunity from 4 disciplinary proceedings because the complaint was 5 premised on evidence that he gave in court in the Sally 6 Clark case. 7 And in particular, I wonder if you'd turn 8 up handwritten page 17, in the corner of your binder. 9 And I'm going to take you to paragraph 113, and in 10 particular the last sentence: 11 "Put another way, why should an expert 12 witness be entitled to go into the 13 witness box, secure in the knowledge 14 that what he says will have immunity 15 not only from civil suit, say in 16 negligence or other civil wrong, but 17 also disciplinary proceedings for 18 conduct so bad that if established 19 would bring his profession into 20 disrepute and --" 21 COMMISSIONER STEPHEN GOUDGE: I am just 22 getting the Registrar to go to page 17. 23 MS. VANORA SIMPSON: I apologize. 24 COMMISSIONER STEPHEN GOUDGE: Is that the 25 right page, Ms. Simpson?

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1 MS. VANORA SIMPSON: It is. I'm in 2 paragraph 113, the last sentence, starting "Put another 3 way..." 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 6 CONTINUED BY MS. VANORA SIMPSON: 7 MS. VANORA SIMPSON: "Put another way, 8 why should an expert witness be 9 entitled to go into the witness box 10 secure in the knowledge that what he 11 says will have immunity not only from 12 civil suit, say in negligence or other 13 civil wrong, but also disciplinary 14 proceedings for conduct so bad that if 15 established would bring his profession 16 into disrepute, and if unchecked be 17 potentially harmful to the public." 18 In the end of this case as you can 19 imagine, they decided there was no such immunity and that 20 Sir Meadow was subject to disciplinary proceedings. 21 Would you agree with this position? 22 DR. ROCCO GERACE: Not having -- again, 23 not having read the entire decision and taking the 24 statement out of context, I would agree with that 25 statement.

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1 MS. VANORA SIMPSON: I'd like to turn now 2 to -- beyond the disciplinary process guidelines and 3 policy that might emanate from the College. 4 And I understand that the College has 5 issued or published guidelines or policies on a wide 6 variety of issues? 7 DR. ROCCO GERACE: We have. 8 MS. VANORA SIMPSON: That offers some 9 assistance to your members to guide them in their 10 practises? 11 DR. ROCCO GERACE: That's correct. 12 MS. VANORA SIMPSON: They also perform an 13 important educative function? 14 DR. ROCCO GERACE: Yes. 15 MS. VANORA SIMPSON: And I understand 16 there are not such guidelines published with respect to 17 physicians testifying as experts in court? 18 DR. ROCCO GERACE: That's correct. 19 MS. VANORA SIMPSON: Could you turn to 20 Volume III, Tab 23. And what we've done here -- 21 COMMISSIONER STEPHEN GOUDGE: Do you have 22 a PFP number for that? 23 MS. VANORA SIMPSON: 302733. 24 COMMISSIONER STEPHEN GOUDGE: Thank you. 25

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1 CONTINUED BY MS. VANORA SIMPSON: 2 MS. VANORA SIMPSON: What we've done here 3 is collated a number -- I think it's seven (7) or eight 4 (8) sets of guidelines from American Medical Associations 5 for their members testifying as witnesses in courts. 6 And on the first page you'll see we start 7 with the American College of Physicians. 8 Roman Numeral I, Recommended 9 Qualifications, Point B. It talks about the physician 10 having the appropriate expertise. 11 And then Roman Numeral II, General 12 Guidelines Point A. It sets out the requirement that the 13 expert witness should testify honestly, fully, and 14 impartially about the qualifications. 15 Several pages on, on page 4, of this 16 document, this is from the American Academy of 17 Pediatrics. And you'll see in this document, I'm going 18 to highlight point 2, the expectation of those members, 19 that the physician's review of medical facts should be 20 thorough, fair, objective, and impartial and should not 21 exclude any relevant information in order to create a 22 perspective favour in either the plaintiff or the 23 defendant. 24 The ideal measure for objectivity and 25 fairness is a willingness to prepare testimony that could

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1 be re -- presented unchanged for use by either the 2 plaintiff or the defendant. 3 It goes on at point 6 and point 7 that the 4 witness should be willing to submit the transcript for 5 peer review, and point 7, be open to discussing expert 6 witness's issues with either side. 7 Throughout the tab we continue on with a 8 variety of guidelines in the same sort of themes that 9 have been developed by the various associations. The 10 standards or expectations that appear as a theme are 11 honestly, objectivity, neutrality, testifying within the 12 scope of the expertise, and with current knowledge in the 13 field. 14 Would you agree with those sort of 15 expectations of your members when they testify as 16 witnesses? 17 DR. ROCCO GERACE: Absolutely. 18 MS. VANORA SIMPSON: Do you think 19 publishing guidelines like this might be of assistance to 20 your members? 21 DR. ROCCO GERACE: I don't know the 22 answer to that. Certainly I would -- if -- if the 23 suggestion is made, I would be willing to put a 24 recommendation in front of my Executive Committee and 25 council and let them make that determination.

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1 MS. VANORA SIMPSON: Has there been any 2 discussion or consideration, you're aware of, at the 3 Executive Committee or council level of such guidelines 4 being implemented? 5 DR. ROCCO GERACE: Not since I've been at 6 the College, that I can recall. 7 MS. VANORA SIMPSON: Thank you, sir. 8 Those are my questions. Thank you, Commissioner. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Simpson. 11 Ms. Esmonde...? 12 13 CROSS-EXAMINATION BY MS. JACKIE ESMONDE: 14 MS. JACKIE ESMONDE: Good afternoon. My 15 name is Jackie Esmonde. I'm one (1) of the lawyers for 16 Aboriginal Legal Services of Toronto and Nishnawbe-Aski 17 Nation. Aboriginal Legal Services of Toronto is a multi- 18 service Aboriginal legal service agency that provides 19 services to Aboriginal people across the Province. 20 Nishnawbe-Aski Nation is a political 21 organisation that represents forty-nine (49) First 22 Nations' communities in northern Ontario, it includes 23 forty-five thousand (45,000) First Nations members, and 24 occupies approximately two-thirds (2/3s) of the Province 25 of Ontario, just to give you some background on who I'm

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1 representing. 2 And like many of My Friends before me, I'm 3 interested in the issue of jurisdiction over complaints 4 about coroners, so I'll start there. 5 Now, first of all, I'll direct most of my 6 questions to you, Doctor, given that you're the 7 Registrar. 8 But, you would agree with me, in terms of 9 jurisdiction over complaints, that comes mainly from 10 statute, right? It's statutory obligations that are 11 imposed on the College? 12 DR. ROCCO GERACE: That's correct. 13 MS. JACKIE ESMONDE: And I understand 14 from testimony you've provided today that the -- that 15 your College now does accept jurisdiction over complaints 16 about pathologists and coroners. And if I can focus in 17 on complaints concerning coroners, I take it the 18 acceptance of jurisdiction arises in part from a 19 recognition that in their role as coroners, they do 20 perform certain duties that are related to their status 21 as physicians. 22 DR. ROCCO GERACE: Well, it's my 23 understanding in the Province of Ontario, to be a 24 coroner, one has to be a physician, and -- and we 25 certainly have jurisdiction over physicians.

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1 MS. JACKIE ESMONDE: Yes. 2 DR. ROCCO GERACE: And so by extension, 3 we would have jurisdiction over physicians acting as 4 coroners. 5 MS. JACKIE ESMONDE: You are well aware, 6 as well, I'm sure, that coroners, as part of their 7 duties, do make determinations with respect to cause and 8 manner of death? 9 DR. ROCCO GERACE: Yes. 10 MS. JACKIE ESMONDE: And they do sign 11 medical certificates of death? 12 DR. ROCCO GERACE: Yes. 13 MS. JACKIE ESMONDE: In terms of the -- 14 we saw this morning you were taken through and some of 15 the -- the other colleagues on your panel were taken 16 through some of the memos that were prepared in the -- 17 the late '90's with respect to the position the College 18 was taking about jurisdiction. Are there similar memos 19 today that set out what is now a different position with 20 respect to complaints about coroners? 21 DR. ROCCO GERACE: I'm not aware of any-- 22 MS. JACKIE ESMONDE: You're not? 23 DR. ROCCO GERACE: -- particular memos, 24 no. 25 MS. JACKIE ESMONDE: What about motions

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1 or decisions made by the Executive Committee? Is there 2 anything like that, that now sets out the new position of 3 the College? 4 DR. ROCCO GERACE: I -- I don't recall 5 any discussion about this particular issue at any 6 Executive Committee meetings. I don't recall any 7 correspondence related to this issue. This is simply 8 what we do. 9 MS. JACKIE ESMONDE: And how is that 10 change in policy communicated to investigators and those 11 who are vetting complaints that come into the College? 12 DR. ROCCO GERACE: I -- I don't know 13 specifically, but clearly we -- we accept complaints 14 about doctors, that's our role, and I would assume that - 15 - that all investigators would know about it. If there 16 was question, their supervisors would be asked, and -- 17 and they would receive instruction. 18 MS. JACKIE ESMONDE: I see. Would you 19 not think it would be beneficial to set that out in 20 writing, given that there has been a change in policy? 21 DR. ROCCO GERACE: I have not put my mind 22 to that question. It might be. 23 MS. JACKIE ESMONDE: Now, one (1) aspect 24 of some of the policy decisions in the late 1990s about 25 jurisdiction was the fact that there was a Coroners'

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1 Council in the Office of the Chief Coroner that could 2 deal with complaints about coroners. 3 That -- that was certainly a factor that 4 was considered, is -- am I right? 5 DR. ROCCO GERACE: That's correct. 6 MS. JACKIE ESMONDE: And you've told us 7 this morning that the College didn't want to duplicate 8 activity, but was concerned to ensure that complaints 9 were appropriately dealt with? 10 DR. ROCCO GERACE: That was my 11 interpretation of the correspondence. 12 MS. JACKIE ESMONDE: Now, am I right that 13 depending on the complaint, it's very possible today that 14 there are a number of different places where a complaint 15 could be dealt with? There are a number of overlapping 16 jurisdictions? 17 DR. ROCCO GERACE: I assume so. I -- I'm 18 not aware of other jurisdictions in with -- in which 19 complaints about doctors are considered. 20 MS. JACKIE ESMONDE: Okay. Well, setting 21 aside the Office of the Chief Coroner, if someone wished 22 to make a complaint about a doctor who worked in a 23 hospital, then a hospital can deal with complaints as 24 well? 25 DR. ROCCO GERACE: Yes.

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1 MS. JACKIE ESMONDE: The Ontario Human 2 Rights Commission can deal with complaints that relate to 3 allegations of discrimination by a doctor? 4 DR. ROCCO GERACE: Yes. 5 MS. JACKIE ESMONDE: And the Ombud's 6 Office has been known to deal with complaints relating to 7 phy -- physicians as well? 8 DR. ROCCO GERACE: I'm not aware of that. 9 I -- I am of the first two (2), but not -- 10 MS. JACKIE ESMONDE: Okay. 11 DR. ROCCO GERACE: -- the Ombudsperson. 12 MS. JACKIE ESMONDE: But you'd agree with 13 me the fact that there are other processes available does 14 not take away the jurisdiction of the College that you 15 receive from statute? 16 DR. ROCCO GERACE: Again, I would 17 reiterate, I think we have jurisdiction over any 18 complaint that is made about a doctor in this province. 19 MS. JACKIE ESMONDE: That's corr -- 20 right. And the fact that there are overlapping 21 jurisdictions does not affect that jurisdiction? 22 DR. ROCCO GERACE: That's correct. 23 MS. JACKIE ESMONDE: You'd agree with me, 24 would you, sir, that other mechanisms can have different 25 strengths and weaknesses. There are different processes

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1 available in terms of the ones I've described to you now? 2 DR. ROCCO GERACE: They certainly could 3 be different, yes. 4 MS. JACKIE ESMONDE: And how familiar 5 were you with the Coroners' Council when it was 6 available? 7 DR. ROCCO GERACE: I was -- I -- my only 8 knowledge at the time was having read the -- that 9 particular portion of the Coroners Act, so not at all 10 familiar. 11 MS. JACKIE ESMONDE: Now, in addition to 12 the investigative role that the College has, Ms. Simpson 13 was asking you about the College's role in developing 14 policies and guidelines, and you -- you'd agree with me 15 that's an important function that the College serves? 16 DR. ROCCO GERACE: I -- I would agree 17 with you, yes. 18 MS. JACKIE ESMONDE: And would you agree 19 with me as well that there is a growing recognition in 20 the medical profession that there are gaps and barriers 21 in terms of access to medical care across the Province? 22 DR. ROCCO GERACE: Yes. 23 MS. JACKIE ESMONDE: And that one (1) 24 particular gap and barrier is access to medical care in 25 remote communities in Ontario?

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1 DR. ROCCO GERACE: I would suggest there 2 is a problem with access to medical care throughout the 3 Province. 4 MS. JACKIE ESMONDE: While that may be 5 so, you'd agree with me the problem could me more acute 6 in remote areas of the Province? 7 DR. ROCCO GERACE: I -- I don't know that 8 for a fact. I -- I -- we know that in urban centres 9 there are hundreds of thousands of people that -- who 10 cannot access primary care. So I'm not sure if you're 11 looking at it from a numerical perspective. All I can 12 say is I agree with you that there certainly are problems 13 with access. 14 MS. JACKIE ESMONDE: Are you familiar 15 with any of the reports or studies that have come out in 16 recent years about gaps and barriers for Aboriginal 17 people in terms of accessing health care in remote 18 communities? 19 DR. ROCCO GERACE: I -- I'm certainly 20 aware that there are those gaps. I'm -- I'm not -- I 21 can't recall any particular report at this time. 22 MS. JACKIE ESMONDE: I see. And there 23 were some reports that were placed in Volume III; I take 24 it from your comments earlier, you didn't have an 25 opportunity to review those in detail?

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  1                 DR. ROCCO GERACE:   I certainly didn't see
  2  those reports in preparing for this Hearing, no.
  3                 MS. JACKIE ESMONDE:   I take it though,
  4  the College would see gaps and barriers to accessing
  5  health care as a significant public heath concern;
  6  something that's of great concern to the College?
  7                 DR. ROCCO GERACE:   It certainly is, yes.
  8                 MS. JACKIE ESMONDE:   And the complaint
  9  system is -- is an import -- performs an important
 10  function in that way, in terms of gaps and barriers being
 11  identified to the College through complaints?
 12                 DR. ROCCO GERACE:   I'm -- I'm not sure of
 13  your question, so I'll answer what I think you asked, and
 14  I'm --
 15                 MS. JACKIE ESMONDE:   It was very
 16  awkwardly worded.  If you want me to rephrase it, I'm
 17  happy to do that.
 18                 DR. ROCCO GERACE:   I -- I would suggest
 19  that -- that I'm not sure how the complaints system will
 20  address the access issues that currently exist, if that's
 21  the question.
 22                 MS. JACKIE ESMONDE:   I -- I can see why
 23  you may have taken that from my question, but I meant
 24  something slightly different.
 25                 DR. ROCCO GERACE:   Okay.

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1 MS. JACKIE ESMONDE: In that would you 2 agree with me the complaint system is one (1) way in 3 which patients can bring concerns about their health care 4 to the attention of the College? 5 DR. ROCCO GERACE: I think the complaint 6 system is a way that patients can bring their concerns 7 about their interaction with a physician to the College, 8 yes, which is different. 9 MS. JACKIE ESMONDE: Well, if a patient 10 had a concern that they were not obtaining the health 11 care they required, for a variety of reasons, they could 12 bring that as a complaint to the College? 13 DR. ROCCO GERACE: I think if -- if it -- 14 if it was a concern related to a particular physician or 15 group of physicians, a patient could bring that concern 16 to the College. 17 I would suggest to you that the majority 18 of concerns that I hear about access, is that there are 19 not physicians available -- 20 MS. JACKIE ESMONDE: Right. 21 DR. ROCCO GERACE: -- to treat patients. 22 And that is not an issue -- while we would take that very 23 seriously from a public policy perspective, I'm not sure 24 how that particular concern could be put in the form of a 25 complaint about a particular doctor.

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1 MS. JACKIE ESMONDE: Right. I take your 2 point. There has to be a doctor for there to be a 3 complaint, right? 4 DR. ROCCO GERACE: Yes. 5 MS. JACKIE ESMONDE: Okay. Now, I did 6 provide -- 7 COMMISSIONER STEPHEN GOUDGE: You're 8 running out of time, Ms. Esmonde. 9 MS. JACKIE ESMONDE: Yes, I'm -- I'm just 10 wrapping up, if I may. 11 COMMISSIONER STEPHEN GOUDGE: Thanks. 12 13 CONTINUED BY MS. JACKIE ESMONDE: 14 MS. JACKIE ESMONDE: I did provide in my 15 document notice a -- a guide that was put out by the 16 Society of Obstetricans and Gynaecologists of Canada, and 17 that is in your Volume III, Tab 16. It's PFP302683. 18 Now first of all, have you seen this 19 document before? 20 DR. ROCCO GERACE: I have not. 21 MS. JACKIE ESMONDE: You have not. 22 You're familiar with the Society of Obstetricians and 23 Gynaecologists of Canada? 24 DR. ROCCO GERACE: I am. 25 MS. JACKIE ESMONDE: And just for the

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1 record, this -- this document is entitled, "A Guide for 2 Health Professionals Working with Aboriginal Peoples", 3 and it is a policy statement issued by the Society of 4 Obstetricians and Gynaecologists of Canada, dated 5 December 2000. 6 Now I understand you say that you haven't 7 seen this before. 8 DR. ROCCO GERACE: That's correct. 9 MS. JACKIE ESMONDE: I -- I have seen 10 this before as a link from the College's website. So 11 I'll try to formulate my questions given that you haven't 12 seen this before. 13 Now first of all this is available as a 14 link on your site, as a resource for physicians. I take 15 it it's not a policy statement that has been formally 16 adopted by the College? 17 DR. ROCCO GERACE: I'm not -- I -- this - 18 - this document has not been adopted by the College, no. 19 MS. JACKIE ESMONDE: And the College does 20 not have a similar policy statement with respect to 21 providing health services to Aboriginal peoples? 22 DR. ROCCO GERACE: Not specifically for 23 Aboriginal peoples. 24 MS. JACKIE ESMONDE: The fact that it's 25 available as a link on your website, can I take from

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1 that, that somebody at the College has made a 2 determination that this is a useful resource for 3 physicians? 4 DR. ROCCO GERACE: I'm -- I'm not sure 5 what you can assume, and I'm not sure whether the link is 6 directly to this document or to the Society's website, 7 which would be different, and I just don't know the 8 answer to that. 9 10 (BRIEF PAUSE) 11 12 MS. JACKIE ESMONDE: Assuming that it is 13 a link to the website, the web page that has this 14 document available on it -- it, I take it if it's a link 15 on the website, it's because somebody has decided that 16 this web page is of use as a resource for physicians and 17 it's credible? 18 DR. ROCCO GERACE: I -- I can -- again, 19 we have a number of links to a number of medical 20 organizations in our web -- on our website. The fact 21 that those occur don't necessarily indicate that the 22 College has adopted the positions that may be espoused in 23 those website. 24 I can't speak specifically for the reasons 25 behind the link to this website. I simply don't know

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1 the -- 2 MS. JACKIE ESMONDE: Okay. 3 DR. ROCCO GERACE: -- answer to that. 4 COMMISSIONER STEPHEN GOUDGE: You are 5 going to have wind up, Ms. Esmonde. 6 MS. JACKIE ESMONDE: Okay. I have two 7 (2) more questions if I may. 8 9 CONTINUED BY MS. JACKIE OSMOND: 10 MS. JACKIE ESMONDE: Now you've said that 11 the College does not have any similar policy or 12 guideline. Are there any discussions being -- taking 13 place in any of the committees with respect to the 14 development of a guideline or resource for physicians 15 providing health services to Aboriginal people? 16 DR. ROCCO GERACE: There is not. 17 MS. JACKIE ESMONDE: Thank you. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 19 Esmonde. 20 Mr. Gover...? 21 22 CROSS-EXAMINATION BY MR. BRIAN GOVER: 23 MR. BRIAN GOVER: Thank you, Mr. 24 Commissioner. 25 Dr. Gerace, Ms. Doris and Ms. Mann, I'm

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1 Brian Gover and I represent the Officer of the Chief 2 Coroner and professionals associated with it, including 3 Dr. Cairns and Dr. Young. 4 And I'll turn to you first, Ms. Mann. You 5 took over the file concerning the investigation of DM's 6 complaint from Duncan Newport, is that correct? 7 MS. MICHELE MANN: That is correct, yes. 8 MR. BRIAN GOVER: And he had been a 9 complaints investigator, is that right? 10 MS. MICHELE MANN: That's correct. 11 MR. BRIAN GOVER: And at the time of 12 leaving the College, Mr. Newport was manager of the 13 Discipline and Legal Office, is that right? 14 MS. MICHELE MANN: I believe that was his 15 title, yes. 16 MR. BRIAN GOVER: And DM's complaint 17 about Dr. Smith had been outstanding since 1991? 18 MS. MICHELE MANN: That's correct. 19 MR. BRIAN GOVER: Now, if I could take 20 you to Volume I, Tab 17, and this is PFP145760. This is 21 your memorandum to Dr. Carlisle, the Deputy Registrar, of 22 January 23rd, 1997. Is that right? 23 MS. MICHELE MANN: That's correct. 24 MR. BRIAN GOVER: And I note that you say 25 here in the -- within the first sentence:

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1 "We have experienced an increasing 2 number of complaints from members of 3 the public who have expressed concerns 4 with particular physicians who are 5 acting in their capacity as coroners." 6 I've read that correctly? 7 MS. MICHELE MANN: I believe so, yes. 8 MR. BRIAN GOVER: Now what led you to 9 make that comment in this memorandum to the Deputy 10 Registrar? 11 MS. MICHELE MANN: Well, the fact that 12 there were concerns that were coming to our attention 13 with regard to people who were acting as coroners or for 14 the Coroner's Office. 15 MR. BRIAN GOVER: Now you said: 16 "...people acting as coroners or for 17 the Coroner's Office." 18 in the course of responding to my question. 19 And is it possible there, Ms. Mann, that 20 you were referring to both pathologists and coroners? 21 MS. MICHELE MANN: It's possible, yes. 22 MR. BRIAN GOVER: Now you've testified 23 about a meeting with Dr. Young on February 14th, 1997? 24 MS. MICHELE MANN: That's correct. 25 MR. BRIAN GOVER: And portions of Dr.

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1 Young's testimony have been reviewed with you in the 2 course of your testimony today? 3 MS. MICHELE MANN: That's correct. 4 MR. BRIAN GOVER: Are you aware that when 5 he testified, Dr. Young was not asked about any meeting 6 with you? 7 MS. MICHELE MANN: I can't be certain 8 whether he was asked that. I've only reviewed certain 9 portions of his -- of his testimony. 10 MR. BRIAN GOVER: Right. Now the meeting 11 had as its purpose, from your standpoint, resolving some 12 outstanding questions raised by DM. Isn't that right? 13 MS. MICHELE MANN: That's correct. 14 MR. BRIAN GOVER: And if we go to Volume 15 I, Tab 11, and this is PFP145975. First of all, this is 16 a letter, Ms. Mann, dated August 19, 1992 to Mr. Newport 17 and it's from DM, is that right? 18 MS. MICHELE MANN: That's correct. 19 MR. BRIAN GOVER: And is it fair to say 20 that the outstanding questions that you wanted to review 21 with Dr. Young are contained in this letter? 22 MS. MICHELE MANN: I wouldn't say it 23 would be fair to assume that. My -- again, I'd have to 24 look at the letter in more detail, but my recollection is 25 that the questions which were put to Dr. Young in my

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1 meeting with him were arising more from the meeting that 2 I had had with the DM family. 3 MR. BRIAN GOVER: Well, let's look at the 4 letter. At the bottom of page 1, in about the third line 5 from the bottom of the page, we see that DM wanted to 6 know how it was appropriate for Dr. Smith to alter the 7 death certificate, isn't that right? 8 MS. MICHELE MANN: Correct. I see that. 9 MR. BRIAN GOVER: And if we turn to the - 10 - roughly the middle of page 2, the last sentence in that 11 paragraph that concludes around the middle of page 2: 12 "DM wanted to know if Dr. Young knew 13 that Dr. Smith..." 14 MS. MICHELE MANN: Sorry. I'm sorry, I - 15 - I'm not where you are. You're in the middle of the 16 document, did you say -- 17 MR. BRIAN GOVER: Yes. 18 MS. MICHELE MANN: -- on page 2? 19 MR. BRIAN GOVER: Yes, almost precisely 20 in the middle. Do you see the centre of -- 21 MS. MICHELE MANN: Of the third 22 paragraph? 23 MR. BRIAN GOVER: Well, it's -- it will 24 be the second full paragraph, but let's -- let me just 25 ask the question and maybe you'll find the words. Do you

264

1 see the words: 2 "Does Dr. Young know that Dr. Smith 3 altered the medical death -- 4 certificate of death in hi -- this 5 case." 6 Do you see that? 7 MS. MICHELE MANN: No. 8 MR. BRIAN GOVER: All right. 9 COMMISSIONER STEPHEN GOUDGE: The last 10 sentence of that paragraph. 11 MS. MICHELE MANN: I see it now, okay. 12 13 CONTINUED BY MR. BRIAN GOVER: 14 MR. BRIAN GOVER: Yes. So that's 15 something, as well, that DM wanted to know, is that fair? 16 MS. MICHELE MANN: Yes. 17 MR. BRIAN GOVER: And at the bottom of 18 that page, we see that DM wanted to know who Dr. Smith 19 approached in making the request for exhumation. 20 MS. MICHELE MANN: Correct. 21 MR. BRIAN GOVER: And also at the bottom 22 of the second page, he wanted to know what reason Dr. 23 Smith had provided in making the request for exhumation. 24 MS. MICHELE MANN: Yes. 25 MR. BRIAN GOVER: Furthermore, at the

265

1 bottom of page 2, he wanted to know how the Attorney 2 General's Office became involved. 3 MS. MICHELE MANN: Yes. 4 MR. BRIAN GOVER: He wanted to know who 5 made the initial contact. 6 MS. MICHELE MANN: Correct. 7 MR. BRIAN GOVER: And he wanted to know 8 whether it was Dr. Young. 9 MS. MICHELE MANN: Yes. 10 MR. BRIAN GOVER: And if we turn to the 11 next page, page 3, in the first full paragraph, he wants 12 to know if it was normal practice for Dr. Smith to go to 13 Timmins, is that fair? 14 MS. MICHELE MANN: Yes. 15 MR. BRIAN GOVER: And I'd suggest that 16 those were the issues that you wanted to discuss with Dr. 17 Young on February 14th. 18 MS. MICHELE MANN: Some of them were, 19 yes. 20 MR. BRIAN GOVER: And you knew, did you, 21 that he had been involved in the case at the initial 22 stages when he was Deputy Chief Coroner. 23 MS. MICHELE MANN: That's correct. 24 MR. BRIAN GOVER: And you took, I 25 suggest, DM's August 19th, 1992 letter with you when you

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1 went to the meeting with Dr. Young. 2 MS. MICHELE MANN: I don't recall 3 bringing that letter with me. I may have, but I don't 4 recall. 5 MR. BRIAN GOVER: Right. You did not 6 take Justice Dunn's decision with you, did you? 7 MS. MICHELE MANN: No, I did not. 8 MR. BRIAN GOVER: And you're aware that 9 Justice Dunn's decision is seventy-five (75) pages long, 10 is that fair? 11 MS. MICHELE MANN: I can't say exactly 12 how many pages, but I do know it's lengthy, yes. 13 MR. BRIAN GOVER: And you've told us that 14 you expect complaints' investigators to review the entire 15 complaint, is that fair? 16 MS. MICHELE MANN: Correct. 17 MR. BRIAN GOVER: And is -- you now 18 supervise a team of investigators, isn't that right? 19 MS. MICHELE MANN: No, that's not 20 correct. 21 MR. BRIAN GOVER: No? 22 MS. MICHELE MANN: No longer, no. I 23 just -- 24 MR. BRIAN GOVER: You have supervised a 25 team of investigators.

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1 MS. MICHELE MANN: In the past, yes. 2 MR. BRIAN GOVER: And in that role, you 3 expected investigators to take notes of anything relevant 4 to their investigation, isn't that right? 5 MS. MICHELE MANN: Correct. 6 MR. BRIAN GOVER: And after all, they may 7 have to refer to some relevant information years later, 8 is that fair? 9 MS. MICHELE MANN: Possibly, yes, that's 10 fair. 11 MR. BRIAN GOVER: Now, if we go to Volume 12 I, Tab 18, and this is PFP152788, and, Ms. Mann, this is 13 the sum total of your notes of the meeting with Dr. Young 14 on February 14th, 1997, isn't that right? 15 MS. MICHELE MANN: That's correct. 16 MR. BRIAN GOVER: And on your evidence, 17 this meeting lasted between thirty (30) and sixty (60) 18 minutes. 19 MS. MICHELE MANN: I can't say exactly 20 how long it lasted. It wasn't a brief meeting of five 21 (5) or ten (10) minutes. It was a meeting of some 22 significant length. I would say roughly about half an 23 hour/forty-five (45) minutes. 24 MR. BRIAN GOVER: Right. 25 MS. MICHELE MANN: I'm not sure that it

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1 lasted as long as sixty (60) minutes. I think that would 2 probably be a generous estimate. 3 MR. BRIAN GOVER: We're going to go 4 through your notes line by line then, and -- and let me 5 know if I've misread them. 14/2/97, meeting with Jim 6 Young. Have I got that correctly? 7 MS. MICHELE MANN: Correct. 8 MR. BRIAN GOVER: 9 "Criminal invest..." 10 -- that's short for investigation -- 11 MS. MICHELE MANN: Yes. 12 MR. BRIAN GOVER: 13 "...will cause exhumation to take 14 place?" 15 MS. MICHELE MANN: Correct. 16 MR. BRIAN GOVER: 17 "In those days, was required by AG of 18 Ontario." 19 MS. MICHELE MANN: Yes. 20 MR. BRIAN GOVER: 21 "Especially if criminal invest..." 22 Short for investigation? 23 MS. MICHELE MANN: Yes. 24 MR. BRIAN GOVER: And in parentheses: 25 "(Vital Statistics Act) or on..."

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1 And I must say, I can't make out the last 2 two words. 3 MS. MICHELE MANN: Parental consent. 4 MR. BRIAN GOVER: 5 "Parental consent." 6 The next line: 7 "Coroner often goes to speak to parents 8 or police throughout the prov..." 9 P-R-O-V, short for province, fair? 10 MS. MICHELE MANN: Correct. 11 MR. BRIAN GOVER: The next line: 12 "Who is coroner, Smith or Ouchterlony" 13 Have I read that correctly? 14 MS. MICHELE MANN: Yes. 15 MR. BRIAN GOVER: And does that tell us 16 that as of February 14th, 1997, there was some question 17 in your mind as to whether Dr. Smith was functioning as a 18 coroner on this occasion? 19 MS. MICHELE MANN: No, that arose from 20 the changes that were made on the death certificate. And 21 I was trying to determine who it was that was most 22 responsible for this. 23 MR. BRIAN GOVER: And you -- 24 MS. MICHELE MANN: At the time that the 25 documents were -- were altered.

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1 MR. BRIAN GOVER: Fair enough. And then 2 you've recorded: 3 "Chief Coroner requested Dr. Smith to 4 become involved." 5 Is that right? 6 MS. MICHELE MANN: Correct. 7 MR. BRIAN GOVER: And you understood that 8 that was Dr. Young when he was the Deputy Chief Coroner, 9 is that fair? 10 MS. MICHELE MANN: That's correct. 11 MR. BRIAN GOVER: The next line: 12 "He has authority under Coroners Act to 13 do so." 14 MS. MICHELE MANN: Yes, that's correct. 15 MR. BRIAN GOVER: 16 "Revise death certif... [short for 17 certificate] ...all along." 18 MS. MICHELE MANN: Yes. 19 MR. BRIAN GOVER: 20 "Okay, done regularly." 21 MS. MICHELE MANN: Yes. 22 MR. BRIAN GOVER: So we've now reviewed 23 the entirety of your notes, is that fair? 24 MS. MICHELE MANN: That's the points that 25 I wanted to review in particular with Dr. Young, correct?

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1 MR. BRIAN GOVER: Right. We've reviewed 2 the entirety of your notes? 3 MS. MICHELE MANN: That's correct. 4 MR. BRIAN GOVER: Right. And this is a 5 half page of notes, is that right? 6 MS. MICHELE MANN: That's correct. 7 MR. BRIAN GOVER: You make author -- you 8 make reference to authority to exhume the body? 9 MS. MICHELE MANN: Mm-hm. 10 MR. BRIAN GOVER: Is that a "yes"? 11 MS. MICHELE MANN: Yes. 12 MR. BRIAN GOVER: Yes for the record. 13 Right. You make reference to whether Dr. Smith or Dr. 14 Ouchterlony was the coroner, is that fair? 15 MS. MICHELE MANN: Yes. 16 MR. BRIAN GOVER: And your notes refer to 17 Dr. Young's role in the case when he was Deputy Chief 18 Coroner? 19 MS. MICHELE MANN: Which part of the note 20 are you -- 21 MR. BRIAN GOVER: Well, your notes -- 22 MS. MICHELE MANN: -- referring to? 23 MR. BRIAN GOVER: -- in the context of: 24 "Chief Coroner requested Dr. Smith to 25 become involved."

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1 That refers to his role, you've agreed, 2 when he was Chief Coroner, is that right? 3 MS. MICHELE MANN: I don't -- I'm not 4 certain at the time of this taking place that Dr. Young 5 was actually the Chief Coroner. I mean, at the time of 6 the interview he was, yes. 7 MR. BRIAN GOVER: Right. And I thought 8 you agreed with me a moment ago you understood he was the 9 Deputy Chief Coroner at the time of investigation? 10 MS. MICHELE MANN: That's -- he was the 11 Deputy Chief Coroner at the time of the investigation. 12 MR. BRIAN GOVER: And your notes, of 13 course, make no reference whatsoever to Justice Dunn's 14 decision, do they? 15 MS. MICHELE MANN: No. 16 MR. BRIAN GOVER: And you knew going into 17 the meeting that the gist of DMs complaint was an ill- 18 conceived child abuse diagnosis? 19 MS. MICHELE MANN: That's correct. 20 MR. BRIAN GOVER: And that, for example, 21 was how he described his complaint in a letter to the 22 College dated August 19th, 1992? 23 MS. MICHELE MANN: Correct. 24 MR. BRIAN GOVER: And, Mr. Commissioner, 25 for the record that's at Volume I, Tab 11, PFP148654, and

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1 I won't refer to it in view of the witnesses agreement. 2 And, Ms. Mann, Dr. Young's view of the soundness of the 3 diagnosis would have been relevant to the complaint had 4 Dr. Young expressed it, is that fair? 5 MS. MICHELE MANN: Sorry, could you 6 repeat the question? 7 MR. BRIAN GOVER: Dr. Young's view of the 8 soundness of the diagnosis -- 9 MS. MICHELE MANN: The diagnosis of child 10 abuse? 11 MR. BRIAN GOVER: Yes. 12 MS. MICHELE MANN: Yes. 13 MR. BRIAN GOVER: -- would have been 14 relevant, if expressed? 15 MS. MICHELE MANN: Yes. 16 MR. BRIAN GOVER: Now, there's no 17 reference to any statement by Dr. Young that he felt 18 strongly that SM had killed this child, is there? 19 MS. MICHELE MANN: No. 20 MR. BRIAN GOVER: And when we look at 21 your notes at Volume I, Tab 18, PFP152788, clearly it's 22 not as if you ran out of space on this page to make any 23 further notes, is it? 24 MS. MICHELE MANN: No. 25 MR. BRIAN GOVER: And your office was

274

1 only a few short blocks away from the Office of the Chief 2 Coroner, isn't that right? 3 MS. MICHELE MANN: That's correct. 4 MR. BRIAN GOVER: And you made no 5 additional notes when you got there? 6 MS. MICHELE MANN: Got to the office, or 7 got to -- 8 MR. BRIAN GOVER: Got -- when you 9 returned to the office from your meeting with the Chief 10 Coroner you made no additional notes? 11 MS. MICHELE MANN: No. 12 MR. BRIAN GOVER: Isn't that right? 13 MS. MICHELE MANN: That's correct. 14 MR. BRIAN GOVER: And you made no 15 additional notes concerning this meeting 16 contemporaneously or near contemporaneously with the 17 event, isn't that fair? 18 MS. MICHELE MANN: Yes. That were in the 19 file you mean? 20 MR. BRIAN GOVER: Yes. You made no 21 additional -- 22 MS. MICHELE MANN: Mm-hm. 23 MR. BRIAN GOVER: -- notes concerning the 24 meting? 25 MS. MICHELE MANN: No.

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1 MR. BRIAN GOVER: Now if we could go to 2 Volume I, Tab 28, this is PFP147877. 3 MR. PETER WARDLE: Mr. Commissioner, I 4 wonder if before My Friend is going to move to a new 5 area, if I might just address you for a moment? 6 COMMISSIONER STEPHEN GOUDGE: What's it 7 about? 8 MR. PETER WARDLE: It relates to -- My 9 Friend put a question to this witness about Dr. Young, 10 and the supposition... 11 12 (BRIEF PAUSE) 13 14 MR. PETER WARDLE: Well, that's -- I have 15 to get to the mic, I'm afraid. We don't have objections 16 here often enough that anybody is used to the procedure. 17 But the question put to her was that Dr. 18 Young was not asked about this meeting during his 19 evidence. And I just wanted to make it clear, that, in 20 fact, it is reflected in the transcript on November 30th, 21 at -- starting at pages 113 and following, that Dr. Young 22 was asked specifically about this meeting with this 23 investigator from the College. 24 COMMISSIONER STEPHEN GOUDGE: Thank you. 25

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1 (BRIEF PAUSE) 2 3 COMMISSIONER STEPHEN GOUDGE: We'll sort 4 that out, Mr. Gover, I mean I... 5 6 CONTINUED BY MR. BRIAN GOVER: 7 MR. BRIAN GOVER: Yes, thank you, Mr. 8 Commissioner. Now back to this letter of December 15th, 9 1997. This is your letter to DM, is that correct? 10 MS. MICHELE MANN: That's correct. 11 MR. BRIAN GOVER: And at page 3 in the 12 second full paragraph, you say this: 13 "Finally, I did meet with Dr. James 14 Young to discuss the circumstances of 15 this case and to seek answers to some 16 of your outstanding questions. He did 17 have a very good recollection of this 18 case, and asked that I relay the 19 following information to you and your 20 family. 21 The order for exhumation of Amber was 22 made by the Attorney General of 23 Ontario, as was the protocol in 1988, 24 on the basis that there was a criminal 25 investigation being conducted.

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1 Since that time the Chief Coroner of 2 Ontario now has the ability to order an 3 exhumation independent of the Attorney 4 General. It is common practice for 5 coroners to speak to parents, police 6 and other authorities anywhere 7 throughout the province as part of 8 their investigation. The Chief Coroner 9 of Ontario has the authority under the 10 Coroner's Act to request a pathologist 11 to become involved with a case, if 12 required. 13 Finally, revisions can and are made to 14 a death certificate if additional 15 information comes forward which might 16 result in a change in the cause of 17 death. A case in point which has been 18 well publicized recently is the Tammy 19 Homolka death." 20 Have I read that correctly, Ms. Mann? 21 MS. MICHELE MANN: You have, yes. 22 MR. BRIAN GOVER: And that is a fair 23 representation of what your notes reflect as the 24 discussion with Dr. Young, is that fair? 25 MS. MICHELE MANN: It's not the full

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1 discussion, but it's the questions -- answers to the 2 questions that DM was seeking at the time. 3 MR. BRIAN GOVER: Right. It's a fair 4 reflection of what your notes indicate -- 5 MS. MICHELE MANN: It appears to be. 6 MR. BRIAN GOVER: -- the discussion was 7 with Dr. Young -- 8 MS. MICHELE MANN: It appears -- 9 MR. BRIAN GOVER: -- is that fair? 10 MS. MICHELE MANN: -- to be, yes. 11 MR. BRIAN GOVER: And no where in the 12 letter do you say that you discussed Justice Dunn's 13 decision with Dr. Young? 14 MS. MICHELE MANN: That's correct. 15 MR. BRIAN GOVER: Now I note that at 16 pages 1 and 2 of the letter, you catalogued the items 17 that you provided to Drs. Barker and Driver, prior to 18 your meeting with them, and you summarize your interview 19 with them, is that right? 20 MS. MICHELE MANN: Correct. 21 MR. BRIAN GOVER: And one (1) of the 22 items that you provided to them was Justice Dunn's 23 decision, isn't that right? 24 MS. MICHELE MANN: Correct. 25 MR. BRIAN GOVER: And you refer to the

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1 fact that the Hospital for Sick Children received a copy 2 of the decision and the changes within the SCAN Team had 3 been made as a consequence, is that right? 4 MS. MICHELE MANN: I indicated that the 5 Judgment had been sent to Sick Children's Hospital, and I 6 indicated that changes had been made within Sick 7 Children's but that were in relation to, not only this 8 case but, other cases that had been brought to their 9 attention. 10 So in other words, the DM case was not the 11 sole catalyst resulting in changes at Sick Childrens. It 12 was that case along with others. 13 MR. BRIAN GOVER: And that's fair enough. 14 At page 1, just before you refer to 15 information that you sent to Drs. Driver and Barker, you 16 say: 17 "Finally, [you] had some outstanding 18 questions regarding the Coroner's 19 Office involvement with this case and 20 requested I speak with the Chief 21 Coroner of Ontario, Dr. James Young." 22 Is that right? 23 MS. MICHELE MANN: I'm just not seeing 24 where that is in the letter. If you could point that out 25 to me, please.

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1 MR. BRIAN GOVER: It's toward the bottom 2 of the page, just before the paragraph -- 3 MS. MICHELE MANN: Oh yes. 4 MR. BRIAN GOVER: -- that starts with, 5 "In February of 1997..." 6 MS. MICHELE MANN: Yes. 7 MR. BRIAN GOVER: And you don't indicate 8 that you'd sent anything to Dr. Young prior to the 9 meeting, is that fair? 10 MS. MICHELE MANN: That's correct, yes. 11 MR. BRIAN GOVER: And, in fact, you 12 didn't send anything to Dr. Young prior to the meeting? 13 MS. MICHELE MANN: That is correct. 14 MR. BRIAN GOVER: And apart from your 15 half page note and this letter, you can point to nothing 16 else in written form to confirm your recollection of what 17 was discussed at that meeting almost eleven (11) years 18 ago -- 19 MS. MICHELE MANN: That is -- 20 MR. BRIAN GOVER: -- is that fair? 21 MS. MICHELE MANN: -- correct. 22 MR. BRIAN GOVER: And you're not in a 23 position to give a verbatim account of what was said by 24 Dr. Young, is that fair? 25 MS. MICHELE MANN: That's fair, yes.

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1 MR. BRIAN GOVER: And you're not in a 2 position to give a verbatim account of what you said to 3 him either, is that fair? 4 MS. MICHELE MANN: That's fair. 5 MR. BRIAN GOVER: And what we're left 6 with then, Ms. Mann, is your impressions of what was said 7 in the meeting, is that fair? 8 MS. MICHELE MANN: You're left with my 9 recollections of what was said in the meeting, yes. 10 MR. BRIAN GOVER: And what I suggest to 11 you in this respect is that Dr. Young, what he said to 12 you in the meeting was that -- was this, or words to this 13 effect -- that he had not seen any evidence that Dr. 14 Smith was wrong. 15 Does that -- does that help you recall 16 what Dr. Young said? 17 MS. MICHELE MANN: No. 18 MR. BRIAN GOVER: Now when were you 19 interviewed by Commission Counsel in this matter? 20 MS. MICHELE MANN: I believe it was 21 initially the first or possibly second week of December. 22 MR. BRIAN GOVER: Of 2007? 23 MS. MICHELE MANN: Of 2007, I believe. 24 MR. ROBERT CENTA: If I can be of 25 assistance. Commission counsel met with Ms. Mann the

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1 first time on December the 3rd, 2007. 2 MR. BRIAN GOVER: Thank you. 3 4 CONTINUED BY MR. BRIAN GOVER: 5 MR. BRIAN GOVER: Now, Ms. Doris, was any 6 forensic pathologist in Ontario involved in identifying 7 and retaining the three (3) assessors used to assist in 8 the Complaints Committee matter? 9 MS. ELIZABETH DORIS: No. 10 MR. BRIAN GOVER: I take it that no 11 forensic pathologist in Ontario was involved in 12 formulating the questions to be put to the assessors 13 either. Is that fair? 14 MS. ELIZABETH DORIS: Correct. 15 MR. BRIAN GOVER: And if we look at 16 Volume II, Tab 11, and this is PFP148421. This is your 17 letter to Dr. Cohle. Is that right? 18 MS. ELIZABETH DORIS: Yes. 19 MR. BRIAN GOVER: And I note that -- and 20 I always get into trouble it seems when I try to place 21 somebody within a page but roughly halfway down the page 22 we see the statement: 23 "The investigation involves a review of 24 Dr. Smith's practice as an anatomical 25 pathologist."

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1 You see that? 2 MS. ELIZABETH DORIS: Yes. 3 MR. BRIAN GOVER: And in fact, was that 4 your understanding as of December 21st, 2001, that the 5 investigation of the complaints concerned his work as an 6 anatomical pathologist? 7 MS. ELIZABETH DORIS: My understanding 8 was that he was working in the capacity of doing 9 pediatric pathology, pediatric forensic pathology. Yeah. 10 MR. BRIAN GOVER: And in fact as a 11 forensic pathologist, do you agree that the questions put 12 to Dr. Cohle ought to have been tailored more to the 13 practice of forensic pathology, as opposed to the 14 questions that we appear to -- that appear here, is that 15 fair? 16 MS. ELIZABETH DORIS: I can't speak to 17 that. I didn't pose the question myself. 18 MR. BRIAN GOVER: Do you agree with me 19 that these questions are -- are standard or generic in 20 nature? 21 MS. ELIZABETH DORIS: They are broad. 22 MR. BRIAN GOVER: And these are standard 23 questions that you'd ask in a standards of practice case, 24 is that fair? 25 MS. ELIZABETH DORIS: That's fair.

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1 MR. BRIAN GOVER: And you ask, for 2 example, whether Dr. Smith's clinical practice behaviour 3 or conduct exposes or is likely to expose his patients to 4 harm or injury, in the third question, do you see that? 5 MS. ELIZABETH DORIS: Yes. 6 MR. BRIAN GOVER: And that's -- that 7 would be an unusual question in the context of forensic 8 pathology, is that fair? 9 MS. ELIZABETH DORIS: Can you say that 10 question again, please? 11 MR. BRIAN GOVER: The -- for a forensic 12 pathologist who does autopsies, that would be an unusual 13 question to put to an expert like Dr. Cohle, is that 14 fair? 15 MS. ELIZABETH DORIS: I see what you're 16 saying. Yes, I see what you're saying. Yes, that would 17 be fair. 18 MR. BRIAN GOVER: And in retrospect, 19 something more precise or more specific to the practice 20 of forensic pathology would have been a more helpful 21 question to put to Dr. Cohle, is that fair? 22 MS. ELIZABETH DORIS: Yes. 23 MR. BRIAN GOVER: Now, Dr. Gerace, you've 24 told us that you were taken aback when you read Justice 25 Dunn's decision in the SM case. Is that correct?

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1 DR. ROCCO GERACE: Yes. 2 MR. BRIAN GOVER: And nevertheless, as a 3 Complaints Committee member, you declined to exercise 4 jurisdiction in relation to DM's complaint in May 1998, 5 is that fair? 6 DR. ROCCO GERACE: I can't recall the 7 specific discussion that occurred at the Panel, but the 8 Panel -- the Panel elected to not take jurisdiction, 9 that's correct. 10 MR. BRIAN GOVER: Right. And we know 11 that the Health Professions Appeal and Review Board, or 12 HPARB, returned the case to the College. 13 DR. ROCCO GERACE: That's correct. 14 MR. BRIAN GOVER: And, Ms. Doris, perhaps 15 I'll take you to Volume II, Tab 57, and this is 16 PFP029060. 17 18 (BRIEF PAUSE) 19 20 MR. BRIAN GOVER: And this is the 21 Complaints Committee decision regarding DM's complaint, 22 is that right, Ms. Doris? 23 MS. ELIZABETH DORIS: Yes, it is. 24 MR. BRIAN GOVER: Now, I note at pages 5 25 and 6, we see itemized, the various documents that were

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1 obtained in the course of the investigation by the 2 Committee. 3 MS. ELIZABETH DORIS: Yes. 4 MR. BRIAN GOVER: And we see, for 5 example, that the -- the enclosures to the letter of 6 complaint, as the first item on page 5, include Justice 7 Dunn's decision, is that right? 8 MS. ELIZABETH DORIS: Yes. 9 MR. BRIAN GOVER: And at the top of page 10 6 we see letters from the defence experts who 11 contradicted Dr. Smith's opinion, is that right? 12 MS. ELIZABETH DORIS: Yes. 13 MR. BRIAN GOVER: And again, a little 14 more than halfway down the page, an excerpt from Dr. 15 Ommaya's testimony and enclosures related to public 16 complaints in coroner's autopsies, is that right? 17 MS. ELIZABETH DORIS: Yes. 18 MR. BRIAN GOVER: And in answering 19 question 1(c) at page 8, the Review Panel -- and this 20 will be right below the heading, Ms. Doris -- the Review 21 Panel indicated it was satisfied that Dr. Smith had 22 properly reviewed the material available before 23 proceeding with the post-mortem, is that right? 24 MS. ELIZABETH DORIS: Yes. 25 MR. BRIAN GOVER: And at pages 11 and 12,

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1 it answered questions 2(c) and (e) by reference to the 2 report provided by the Panel of Assessors, is that right? 3 MS. ELIZABETH DORIS: Could you show me 4 that, like could you point that to me? 5 MR. BRIAN GOVER: Yes. You'll see that 6 at page 12 in the indented portion -- 7 MS. ELIZABETH DORIS: Oh. 8 MR. BRIAN GOVER: -- with respect to the 9 diagnosis of SBS. 10 MS. ELIZABETH DORIS: Yes. 11 MR. BRIAN GOVER: And it indicated in the 12 first indented portion there that Dr. Smith listed 13 accepted criteria for the diagnosis of this injury, but 14 appropriately addressed the issue of the difficulty in 15 determining whether blunt injury was present in that 16 case, is that right? 17 MS. ELIZABETH DORIS: Yes. 18 MR. BRIAN GOVER: And a little farther 19 down we see that the report also indicates: 20 "In general, this indicated a good 21 understanding by Dr. Smith of the 22 diagnostic criteria for Shaken Baby 23 Syndrome and the pitfalls in making the 24 diagnosis." 25 Is that right?

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1 MS. ELIZABETH DORIS: Yes. 2 MR. BRIAN GOVER: And in the next 3 indented portion: 4 "The independent panel concluded and 5 it's reflected in the Complaints 6 Committee decision that his opinion, 7 that the cause of death was head 8 injury, was acceptable." 9 Is that right? 10 MS. ELIZABETH DORIS: Yes. 11 MR. BRIAN GOVER: Do you see that in the 12 first line of the next indented portion? 13 And although the Panel noted deficiencies, 14 at the next page under the heading "General Remarks" it 15 points out or it says: 16 "The review panel assembled by the 17 College concluded that overall in this 18 case, Dr. Smith met the standard 19 expected of a pathologist assisting the 20 coroner in an investigation." 21 Have I read that correctly? 22 MS. ELIZABETH DORIS: You're going to 23 have to point that to me again. 24 MR. BRIAN GOVER: It's under the heading 25 "General Remarks" on page 13.

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1 MS. ELIZABETH DORIS: Yes. 2 MR. BRIAN GOVER: Now -- 3 MS. ELIZABETH DORIS: Yes. 4 MR. BRIAN GOVER: -- at Tab 69 of the 5 same volume, PFP146982, we have the HPARB decision 6 concerning the review of the Complaints Committee 7 decision in this matter. And HPARB confirmed the 8 Complaints Committee decision in relation to the DM 9 complaint, is that right? 10 MS. ELIZABETH DORIS: Correct. 11 MR. BRIAN GOVER: And it did that on 12 January 22nd, 2004? 13 MS. ELIZABETH DORIS: Yes. 14 MR. BRIAN GOVER: Now, Ms. Doris, in 15 relation to the complaint made by Mr. Gagnon, we see the 16 Complaints Committee decision at Volume II, Tab 55, which 17 is PFP034523. 18 And, Ms. Doris, at pages 5 through 8, we 19 see listed the information obtained by the Complaints 20 Committee in the course of the investigation. 21 MS. ELIZABETH DORIS: Yes. 22 MR. BRIAN GOVER: And toward the bottom 23 of page 7 we see reference, for example, to the warrant 24 for post-mortem examination dated June 25, 1997. 25 Do you see that, a little more than about

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1 -- well, about two-thirds (2/3s) of the way down the 2 page? 3 MS. ELIZABETH DORIS: Warrant for...? 4 MR. BRIAN GOVER: Post-mortem 5 examination, June 25, 1997. 6 MS. ELIZABETH DORIS: Yes. 7 MR. BRIAN GOVER: And -- and then at the 8 bottom of the page, the last ten (10) or so points refer 9 to affidavits and opinions of experts who contradicted 10 Dr. Smith. Is that right? 11 MS. ELIZABETH DORIS: They're the 12 affidavits by the experts. 13 MR. BRIAN GOVER: Yes. 14 MS. ELIZABETH DORIS: Yes. Yes. 15 MR. BRIAN GOVER: Who presented an 16 opposing view to the one given by Dr. Smith? 17 MS. ELIZABETH DORIS: Yes. 18 MR. BRIAN GOVER: And at the next -- 19 MS. ELIZABETH DORIS: Could I just 20 clarify? I'm not sure about the affidavit by Dr. Chen. 21 MR. BRIAN GOVER: Right. 22 MS. ELIZABETH DORIS: I don't believe Dr. 23 Chen was an expert. 24 MR. BRIAN GOVER: He was the initial 25 pathologist.

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1 MS. ELIZABETH DORIS: Exactly. 2 MR. BRIAN GOVER: Right. 3 MS. ELIZABETH DORIS: Yes. 4 MR. BRIAN GOVER: Thank you. 5 And if we turn to the next page, page 8, 6 you'll see reference there in the first two (2) bullet 7 points: 8 "Letter from Dr. Jay. Letter from Dr. 9 Babyn." 10 And -- these were also contrary to Dr. 11 Smith's position, is that fair? 12 MS. ELIZABETH DORIS: I believe that was 13 the recollection of events. I would have to read their 14 letters to answer that question. I don't know if it was 15 contrary. 16 MR. BRIAN GOVER: Fair enough. Well, 17 I'll skip to the disposition in view of the time then. 18 And "Disposition" is the heading at page 19 14 and the first paragraph there says: 20 "The Committee acknowledges the expert 21 panel's opinion that Dr. Smith's 22 overall approach was acceptable 23 nevertheless, the Committee is 24 extremely disturbed by the deficiencies 25 in his approach in this case as set out

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1 above." 2 I've read that correctly? 3 MS. ELIZABETH DORIS: Yes. 4 MR. BRIAN GOVER: Now, at page 12, in 5 relation to questions 5 and 6(a), and just a little more 6 than halfway down the page again, the third paragraph 7 under that heading you'll see: 8 "In the Committee's view the elapsed 9 time of just over forty (40) days from 10 the date of the autopsy to the date on 11 the report was entirely reasonable." 12 Have I read that correctly? 13 MS. ELIZABETH DORIS: Yes. 14 MR. BRIAN GOVER: And the review panel 15 was not prepared to conclude that Dr. Smith unduly 16 delayed the release of his report. We see that within 17 the same paragraph as the concluding sentence, is that 18 right? 19 MS. ELIZABETH DORIS: Yes. 20 MR. BRIAN GOVER: Now, that was even 21 though he waited a further three (3) months to release 22 the report, is that right? 23 MS. ELIZABETH DORIS: I would have to be 24 directed to notes for that. 25 MR. BRIAN GOVER: All right. And

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1 question 6(c) was: 2 "Did Dr. Smith cause the exhumation of 3 Nicholas by providing misrepresented 4 and/or exaggerated facts to the 5 Attorney General?" 6 And the expert panel concluded, we see 7 from the first sentence: 8 "It was reasonable for Nicholas' body 9 to be exhumed." 10 Is that right? 11 MS. ELIZABETH DORIS: Yes. 12 MR. BRIAN GOVER: Now, Mr. Gagnon did not 13 initiate a review of the Complaints Committee's decision 14 to HPARB, did he? 15 MS. ELIZABETH DORIS: Correct. 16 MR. BRIAN GOVER: Now, turning then to 17 Ms. Waudby's complaint, Volume II, Tab 54, starting at 18 the second page, we see the Complaints Committee decision 19 and reasons, is that right? 20 MS. ELIZABETH DORIS: Yes. 21 MR. BRIAN GOVER: And at pages 4 and -- 22 and I ought to have given the PFP number; this is 23 PFP147233. At pages 4 and 5, we see listed the 24 information obtained by the Complaints Committee in the 25 course of the investigation, is that right?

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1 MS. ELIZABETH DORIS: Yes. 2 MR. BRIAN GOVER: And at the bottom of 3 page 4, we see "Under Investigation", where those things 4 are listed, we see the opinion of a number of experts who 5 contradicted Dr. Smith regarding the timing of the 6 injuries, Dr. Innis (phonetic), Dr. Fitzgerald, and Dr. 7 Finkle, is that right? 8 MS. ELIZABETH DORIS: I know that Dr. 9 Ines spoke to -- I -- I can think that Dr. Ines spoke 10 directly to the timing of injuries; I would have to 11 review Dr. Fitzgerald and Finkle's opinion as well. 12 MR. BRIAN GOVER: Right. And at page 8, 13 under "Disposition", the Committee acknowledged the 14 expert panel's opinion that Dr. Smith's overall approach 15 was acceptable, but expressed its -- its -- the fact that 16 it was extremely disturbed by deficiencies in his 17 approach, is that right? 18 MS. ELIZABETH DORIS: Yes. 19 MR. BRIAN GOVER: Now, under "General 20 Remarks" on the same page, the review panel concluded 21 that, overall, Dr. Smith met the standards expected of a 22 pathologist assisting the coroner in an investigation, is 23 that right? 24 MS. ELIZABETH DORIS: Yes. 25 MR. BRIAN GOVER: And at Volume II, Tab

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1 68, PFP146400, we see that the Health Professions Appeal 2 and Review Board confirmed the Complaints Committee's 3 decision in relation to Ms. Waudby's complaint, is that 4 right? 5 MS. ELIZABETH DORIS: Yes. 6 MR. BRIAN GOVER: And that was November 7 10th, 2003. 8 MS. ELIZABETH DORIS: Yes. 9 MR. BRIAN GOVER: And in doing so, if we 10 could go to page 4 of the Decision -- in doing so, we see 11 that at the bottom of the page, HPARB concluded that the 12 investigation was adequate, is that right? 13 MS. ELIZABETH DORIS: Yes. 14 MR. BRIAN GOVER: And in relation to the 15 hair, at page 5 -- or pardon me, page 6, the -- the two 16 (2) paragraphs at the top of the page, and I'll read them 17 quickly: 18 "Regarding the second hai -- concern, 19 possession of the hair, Dr. Smith 20 states that he found the hair on the 21 body at the time of the autopsy at the 22 Hospital for Sick Children. As the 23 Board understands that police 24 photographs taken at this time show the 25 hair in place, there is no information

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1 in the record to dispute this. It is 2 reasonable for the Committee to have 3 acted as it did in light of this. It 4 appears with respect to the third 5 concern, Dr. Smith's testimony, that 6 Dr. Smith denied being aware of the 7 existence of a pubic hair on the body, 8 he did not deny awareness that a hair, 9 which was apparently not a pubic hair, 10 was found. It was reasonable for the 11 Committee to have acted as it did in 12 light of this." 13 And that was the -- the conclusion reached 14 by HPARB in that regard, is that right? 15 MS. ELIZABETH DORIS: Yes. 16 MR. BRIAN GOVER: And finally, Dr. 17 Gerace, I'll take you to the Office of the Chief 18 Coroner's Institutional Report, which is PFP149431, and 19 in particular, to paragraph 116. 20 DR. ROCCO GERACE: Do -- do I have that 21 document, Mr. Gover? 22 MR. BRIAN GOVER: We will have it on the 23 screen shortly or there should be an extra copy 24 available. I see Mr. Centa is about to assist us. And, 25 Dr. Gerace, it's -- at page 37, you'll see paragraph

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1 116. And this refers to the Chief Coroner's review 2 process, which was established in April 2006 to address - 3 - to to ensure, rather, that any serious concerns 4 regarding the work or conduct of a coroner would be fully 5 and fairly investigated through a transparent process. 6 Are you familiar with the fact that -- 7 that currently, as of April 2006, that there is a Chief 8 Coroner's review process in place to address those 9 issues? 10 DR. ROCCO GERACE: I was not aware of 11 that. 12 MR. BRIAN GOVER: If I could take you to 13 the -- first of all, I take it you welcome the 14 establishment of such a review process by the Office of 15 the Chief Coroner? 16 DR. ROCCO GERACE: I know nothing about 17 it. I -- I think there has to be an accountability 18 framework. If that provides an accountability framework, 19 it would be -- it would be very welcome. 20 MR. BRIAN GOVER: Because, as you've 21 said, like the College of Physicians and Surgeons of 22 Ontario, the Office of the Chief Coroner has a mandate to 23 act in the public interest or you'd expect it to, is that 24 fair? 25 DR. ROCCO GERACE: Yes.

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1 MR. BRIAN GOVER: If I could turn to the 2 Institutional Report of the College of Physicians and 3 Surgeons of Ontario, PFP302481 at page 13. And you will 4 likely have a copy of this with you, Dr. Gerace. 5 DR. ROCCO GERACE: Do you have a tab 6 number? 7 COMMISSIONER STEPHEN GOUDGE: It is your 8 Institutional Report. 9 DR. ROCCO GERACE: Yes, I just -- sorry. 10 MS. ELIZABETH DORIS: Page 13? 11 DR. ROCCO GERACE: The College's 12 Institutional Report. I -- I don't where -- I -- I may 13 have it. I just don't know where it is. 14 COMMISSIONER STEPHEN GOUDGE: Ms. Silver 15 will -- 16 DR. ROCCO GERACE: Thank you. 17 18 CONTINUED BY MR. BRIAN GOVER: 19 MR. BRIAN GOVER: Thank you. Mr. 20 Silver's helping out this time. 21 DR. ROCCO GERACE: And I'm sorry, 22 page...? 23 MR. BRIAN GOVER: Page 13. 24 DR. ROCCO GERACE: Yes. 25 MR. BRIAN GOVER: And paragraph 36. We

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1 see a list of nontraditional roles which is said to be 2 nonexist -- nonexhaustive there. Where do you see 3 coroners fitting into that list, if at all, Dr. Gerace? 4 DR. ROCCO GERACE: Well, the -- the -- I 5 would suggest that coroners would be part of that list. 6 It's not there. It's not written down, but again, it is 7 said that the list is nonexhaustive. 8 MR. BRIAN GOVER: Right. And I take it 9 from what you said a moment ago that you agree that in 10 having a review process that there's a role for the 11 Office of the Chief Coroner in reporting to the College 12 instances where physicians who work for it engage in 13 what, in your view, would be professional misconduct, is 14 that fair? 15 DR. ROCCO GERACE: I don't recall having 16 said that but I certainly do believe that. 17 MR. BRIAN GOVER: But -- but in terms of 18 -- for example, conduct that would fall under the 19 definition of disgraceful, dishonourable, or 20 unprofessional behaviour, especially, that would be 21 conduct that -- that a physician performing in a 22 nontraditional role would find themselves under the 23 jurisdiction of the College, is that fair? 24 DR. ROCCO GERACE: Yes. 25 MR. BRIAN GOVER: And --

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1 COMMISSIONER STEPHEN GOUDGE: You are 2 going to have to wind up, Mr. Gover. 3 MR. BRIAN GOVER: I will, Mr. 4 Commissioner. 5 6 CONTINUED BY MR. BRIAN GOVER: 7 MR. BRIAN GOVER: As the professional 8 regulator, the College is the ultimate arbiter concerning 9 whether its members conduct themselves in a professional 10 and competent way, is that fair, Dr. Gerace? 11 DR. ROCCO GERACE: Yes. 12 MR. BRIAN GOVER: And that's regardless 13 of what oversight measures are in place relating to 14 physicians in nontraditional roles, -- 15 DR. ROCCO GERACE: Yes. 16 MR. BRIAN GOVER: -- is that fair? 17 DR. ROCCO GERACE: Yes. 18 MR. BRIAN GOVER: And, Dr. Gerace, what 19 role did alternative dispute resolution processes play in 20 standards cases in the mid to late 1990s? 21 DR. ROCCO GERACE: I'm not actually sure. 22 My -- my -- there -- I -- I recall there having been a 23 couple of cases. The whole ADR process was winding down 24 as I became involved. I can recall having read in the 25 College publi -- publication about some ADR decisions,

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1 and I vague --- vaguely recall some of the cases that 2 came before the Complaints Committee, but that -- that 3 process was ending about the time that I began to get 4 involved. 5 MR. BRIAN GOVER: And is it -- finally, 6 is it fair to say that in fact in 2002 in relation to 7 standards cases, the College made a deliberate policy 8 change to focus more on education than punishment through 9 the discipline process? 10 DR. ROCCO GERACE: Yes. 11 MR. BRIAN GOVER: Thank you very much. 12 Those are my questions. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 14 Gover. 15 Mr. Carter...? 16 17 CROSS-EXAMINATION BY MR. WILLIAM CARTER: 18 MR. WILLIAM CARTER: Thank you Mr. 19 Commissioner. Ms. Mann, Ms. Doris, and Dr. Gerace, I am 20 Bill Carter. I am counsel for the Hospital for Sick 21 Children and in the time I have available, I think my 22 questions with be directed to you, Dr. Gerace. 23 Could we have document PFP148629, please? 24 This is a document that is appear -- apparently a 25 memorandum from a Ms. Cheryl McDougall, and you were

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1 referred to this in your evidence, Doctor. 2 DR. ROCCO GERACE: Yes. 3 MR. WILLIAM CARTER: Again, it's there. 4 Now, who is Ms. McDougall? 5 DR. ROCCO GERACE: Cheryl McDougall is an 6 Investigator at the College. 7 MR. WILLIAM CARTER: And this is her note 8 of a telephone conversation with a Dr. Laxer at Sick 9 Kids. 10 DR. ROCCO GERACE: Yes. 11 MR. WILLIAM CARTER: Do you know Dr. 12 Laxer? 13 DR. ROCCO GERACE: I have met Dr. Laxer, 14 yes. 15 MR. WILLIAM CARTER: And in the second 16 last paragraph there's reference to a blinded review, a 17 random blinded review. 18 DR. ROCCO GERACE: Yes. 19 MR. WILLIAM CARTER: Okay. If we could 20 have, for the moment, document PFP138186. Since you 21 followed some of the evidence, Doctor, you may be aware 22 that a Dr. Dimmick, a pathologist in British Columbia, 23 was called upon to review some of Dr. Smith's surgical 24 cases in 2005. 25 DR. ROCCO GERACE: Yes.

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1 MR. WILLIAM CARTER: Are you familiar 2 with that at a general level? 3 DR. ROCCO GERACE: I -- I was -- at a 4 general level, yes. 5 MR. WILLIAM CARTER: Okay, I just want 6 you to take a look for a moment at this letter dated May 7 12th, 2005. That predates the memorandum from Ms. 8 McDougall by several months. 9 So this is the review that Dr. Laxer was 10 referring to in his conversation with Ms. McDougall, is 11 that fair. You're -- does that seem reasonable to you? 12 DR. ROCCO GERACE: I -- I will accept 13 that if you say so. I don't know that for a fact. 14 MR. WILLIAM CARTER: Okay, you'll note 15 that -- that Dr. Laxer, in this letter, is described as 16 Vice-president Clinical and Academic affairs at the 17 Hospital for Sick Children. 18 And in this review, if we could just go to 19 the bottom paragraph where he summarizes his conclusions, 20 he says: 21 "In general, I find Dr. Smith's reports 22 to be appropriately informative, 23 thorough, and diagnostically accurate." 24 And if you want to read the rest, you can, 25 but it's not germaine for the -- the purpose of my

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1 question. If we could then just go back to the document 2 that we were looking at summarizing Ms. McDougall's 3 conversation with Dr. Laxer. 4 Do you have that again? The bottom -- he 5 says a -- she says: 6 "A random blinded review of sixty (60) 7 cases was completed; the slides and 8 diagnosis and -- was compared. Based 9 on the positive report about Dr. 10 Smith's work, the hospital was 11 confident that there was no issues 12 related to his pathology work." 13 Would it be fair to say that the report of 14 Dr. Dimmick was a favourable review, as you understand 15 it? 16 DR. ROCCO GERACE: Judging from the area 17 you pointed out to me, yes. 18 MR. WILLIAM CARTER: Yeah, so this -- 19 this -- the spirit of that has been fairly captured in 20 Ms. McDougall's note here. 21 DR. ROCCO GERACE: I think we were -- we 22 were looking specifically at the second paragraph of Ms. 23 McDougall's note. 24 MR. WILLIAM CARTER: No, I'm -- for the 25 purposes of my question, the second last paragraph

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1 summarizing the review with Dr. Dimmick has been fairly 2 captured in -- 3 DR. ROCCO GERACE: Yes. 4 MR. WILLIAM CARTER: -- Ms. McDougall's - 5 - okay. 6 DR. ROCCO GERACE: Yes. 7 MR. WILLIAM CARTER: Now, if we go up to 8 the top of this note, the complainant here is the College 9 of Physicians and Surgeons of Saskatchewan. I take it 10 that's -- they were not in fact the complainant; they had 11 lodged an inquiry, or launched an inquiry with the 12 College, is that fair? 13 DR. ROCCO GERACE: I'm not sure how that 14 came -- as designated as a complainant. I -- I don't 15 know the answer to that. 16 MR. WILLIAM CARTER: Okay. Well, as I 17 understand it from your earlier evidence, the College -- 18 the Saskatchewan College had been interested to know 19 whether the problems that Dr. Smith had encountered 20 around this time or a little before this time, related to 21 his work as a pathologist for the Coroner's Office, 22 whether this had been the subject of review at the 23 College of Physicians and Surgeons? 24 DR. ROCCO GERACE: My recollection of the 25 letter from Saskatchewan was that it asked about whether

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1 there had been matters considered by the College that 2 were inconsistent with the answers to the questions on 3 the application -- 4 MR. WILLIAM CARTER: Fair enough. 5 DR. ROCCO GERACE: -- to the College in 6 Saskatchewan. 7 MR. WILLIAM CARTER: But that -- nothing 8 turns to this -- it's the context in which this inquiry 9 is being raised. The context is an inquiry from 10 Saskatchewan to the College in Ontario? 11 DR. ROCCO GERACE: Around the -- 12 MR. WILLIAM CARTER: Around the 13 performance of Dr. Smith? 14 DR. ROCCO GERACE: I can't speak 15 specifically -- 16 MR. WILLIAM CARTER: Okay. 17 DR. ROCCO GERACE: -- for the context of 18 this particular memo. I'm sorry. 19 MR. WILLIAM CARTER: Okay. Well, -- 20 DR. ROCCO GERACE: I -- I'm referring 21 back to the letter from Mr. Saulte (phonetic) to me in 22 reference to the answers to the questions on the 23 application. 24 MR. WILLIAM CARTER: Okay. Well, let's 25 just take a look at this memo. The first sentence is:

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1 "October -- on October 7th, 2005, Dr. 2 Ron Laxer, Chief of Staff at the 3 Hospital for Sick Children, returned my 4 call." 5 Would you agree with me that in fact is 6 not his title? He's Vice President, as indicated in this 7 letter? Are you aware that Sick Kids does not have a 8 Chief of Staff? 9 DR. ROCCO GERACE: I was not aware of 10 that. 11 MR. WILLIAM CARTER: Okay. And the -- 12 you do have some association with the Hospital for Sick 13 Children, do you not or you did have at one time. 14 DR. ROCCO GERACE: I did. I -- I was on 15 the -- I was a staff member of the Hospital for Sick 16 Children. 17 MR. WILLIAM CARTER: In infectious 18 diseases? 19 DR. ROCCO GERACE: In toxicology. 20 MR. WILLIAM CARTER: Toxicology. But you 21 weren't aware there was no Chief of Staff at Sick Kids? 22 DR. ROCCO GERACE: No. 23 MR. WILLIAM CARTER: Okay. And the next 24 paragraph says: 25 "Dr. Laxer advised there had been no

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1 indication that Dr. Smith's pathology 2 work was suspect." 3 Now, we know at the time of this inquiry 4 that his work as a forensic pathologist was subject of 5 considerable media interest and attention at the 6 Coroner's Officer, is that fair? This is the -- 7 DR. ROCCO GERACE: Yes. 8 MR. WILLIAM CARTER: -- summer -- 9 DR. ROCCO GERACE: Yes. 10 MR. WILLIAM CARTER: -- or the fall of 11 2005? 12 DR. ROCCO GERACE: Yes. 13 MR. WILLIAM CARTER: It was notorious, 14 was it not, at that point? 15 DR. ROCCO GERACE: We were aware of the - 16 - of the issues, yes. 17 MR. WILLIAM CARTER: Right. So in this 18 note of Ms. McDougall, surely what she's referring is 19 just non-forensic pathology work, is that fair? But she 20 doesn't make that distinction clear? 21 DR. ROCCO GERACE: That -- that would be 22 my interpretation. 23 MR. WILLIAM CARTER: Right. And that 24 would be fortified by the paragraph we've already 25 discussed where Dr. Dimmick's review is mentioned, which

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1 relates to his surgical work? 2 DR. ROCCO GERACE: Yes. 3 MR. WILLIAM CARTER: Okay. And you'll 4 agree with me that this is Ms. McDougall's summary. 5 Nowhere in it does she actually quote anything Dr. Laxer 6 has said? 7 DR. ROCCO GERACE: That's correct. 8 MR. WILLIAM CARTER: She's attempted to 9 characterize in her own language her conversation with Dr. 10 Laxer? 11 DR. ROCCO GERACE: Yes. 12 MR. WILLIAM CARTER: Okay. Now, the other 13 matter I wanted to address with you is the mandatory 14 reporting obligations, and indeed, the monitoring of 15 medical staff in a clinic institutional setting. 16 Now, you told us that although you weren't 17 specifically aware of the mandatory reporting obligations, 18 in your view, based on the information made available to 19 you, in the circumstances of Dr. Smith at some point over 20 his tenure at Sick Kids, you felt that there was some 21 mandatory obligation to report? 22 DR. ROCCO GERACE: I believe what I said 23 was given my interpretation of the mandatory reporting 24 requirements that -- that there was a restriction in his 25 activity and this formed the grounds for a mandatory

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1 report. 2 MR. WILLIAM CARTER: I see. Now, you have 3 worked, yourself, in a clinical setting for a considerable 4 period of time? 5 DR. ROCCO GERACE: That's correct. 6 MR. WILLIAM CARTER: And you would agree 7 with me that in a clinical setting, which is highly 8 regulated such as a Academic Health Science Centre such as 9 the one you worked in, there are all kinds of means and 10 mechanisms for monitoring the quality of medical care 11 that's given. 12 DR. ROCCO GERACE: There are certainly 13 methods of doing so, yes. 14 MR. WILLIAM CARTER: Yeah. And I take it 15 that your -- it's not your position that whenever a 16 physician fails to adhere to an institutional norm or 17 standard of practice set by the institution that's 18 automatic grounds for reporting to the College of 19 Physicians and Surgeons? 20 DR. ROCCO GERACE: That's correct. 21 MR. WILLIAM CARTER: Okay. And I think 22 you'd agree with me that those who are aware of the 23 performance of the medical staff and whose responsibility 24 it is to monitor, are in a position where they have to 25 form judgments about the quality of their colleague's

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1 care? 2 DR. ROCCO GERACE: Yes. 3 MR. WILLIAM CARTER: And I'm sure from 4 your own experience, you've encountered situations where 5 members of medical staff, that you're familiar with, have 6 deviated from accepted norms from time to time? 7 DR. ROCCO GERACE: Yes. 8 MR. WILLIAM CARTER: And in those 9 circumstances, their shortcomings have been identified and 10 pointed out to them? 11 DR. ROCCO GERACE: Yes. 12 MR. WILLIAM CARTER: And they have been 13 given an opportunity to address those? 14 DR. ROCCO GERACE: Yes. 15 MR. WILLIAM CARTER: And sometimes they're 16 successful in addressing those? 17 DR. ROCCO GERACE: I would think for the 18 most part, in my experience, they have been successful in 19 addressing those. 20 MR. WILLIAM CARTER: Yeah. And when they 21 are successfully addressed, that would constitute a 22 successful management of a medical staff issue? 23 DR. ROCCO GERACE: Correct. 24 MR. WILLIAM CARTER: And that's what you 25 would expect from the proper management of medical staff

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1 deficiencies: "Identification and Rectification?" 2 DR. ROCCO GERACE: Sure. 3 MR. WILLIAM CARTER: Yeah -- 4 DR. ROCCO GERACE: Those wouldn't be my 5 words, but identification and education allowing 6 remediation of those deficiencies. 7 MR. WILLIAM CARTER: And -- and if -- if 8 those opportunities are given and allowed to bear fruit, 9 that would constitute successful management technique and 10 execution? 11 DR. ROCCO GERACE: I think that's a very 12 important component of -- of dealing with physicians -- 13 MR. WILLIAM CARTER: Right. 14 DR. ROCCO GERACE: -- in a clinical 15 setting, yes. 16 MR. WILLIAM CARTER: And in those 17 circumstances -- and I'm talking in the very broadest of 18 terms because there's always exceptions, but in those 19 circumstances, it would not be automatic that a physician 20 necessarily have his or her conduct reported to the 21 College? 22 DR. ROCCO GERACE: I'm not sure where 23 we're going with this, but in my experience dealing with - 24 - with isolated deficiencies, there was never a situation 25 in which a physician failed to correct the deficiencies

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1 such that the terms of their providing the service have 2 been restricted. 3 MR. WILLIAM CARTER: Okay, but we're -- 4 but you're making -- 5 DR. ROCCO GERACE: And so -- and so -- I'm 6 sorry. 7 MR. WILLIAM CARTER: Yeah. 8 DR. ROCCO GERACE: And so I can tell you, 9 and I just want to make this point, that during my 10 clinical years, I actually did not have an awareness of 11 these issues. 12 MR. WILLIAM CARTER: Did you have any 13 supervisory responsibilities in your clinical years? 14 DR. ROCCO GERACE: Moreso for trainees 15 than for colleagues, but I did have some supervisory 16 responsibility for colleagues, yes. 17 MR. WILLIAM CARTER: Okay. And you would 18 agree with me that the -- your concern in answering my 19 question was diverted onto your assessment of some facts 20 as you understand them in this case, related to somebody 21 being taken off a service? 22 DR. ROCCO GERACE: I'm sorry -- 23 MR. WILLIAM CARTER: Or restricted -- 24 DR. ROCCO GERACE: -- I'm not sure I'm 25 understanding your question.

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1 MR. WILLIAM CARTER: Well, maybe I 2 misunderstood your answer then. 3 You agree with me that it's important to 4 manage the medical staff in a way that encouraged their 5 best performance and identified deficiencies and give them 6 an opportunity to improve through education and other 7 forms of instruction? 8 DR. ROCCO GERACE: Yes. 9 MR. WILLIAM CARTER: Okay. And in doing 10 that, that process, that's a natural process of learning 11 and personnel management? 12 DR. ROCCO GERACE: Yes. 13 MR. WILLIAM CARTER: Okay. And that -- 14 that -- when those things occur they don't necessarily 15 give rise to reporting obigations? 16 DR. ROCCO GERACE: That's correct. 17 MR. WILLIAM CARTER: At the College? 18 DR. ROCCO GERACE: That's correct. 19 MR. WILLIAM CARTER: What you were 20 concerned about I think, in your answering my questions, 21 was situations where somebody is restricted from 22 exercising their privileges and maybe therefore, required 23 to have their conduct reported to the College? 24 DR. ROCCO GERACE: I think what I'm 25 suggesting is that if there is a restriction placed on a

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1 doctor's privileges, there is a statutory obligation to 2 make a report to the College. 3 MR. WILLIAM CARTER: Okay. But a 4 restriction, there -- you know, that's an elastic term, 5 and a restriction may be a decision reached by the parties 6 to spend less time doing a certain time of work to enable 7 them to do other types of work for which they're perfectly 8 qualified. 9 DR. ROCCO GERACE: I'm not sure that I 10 would classify that as a restriction, but I -- I think we 11 could come up with a number of definitions for 12 restriction. 13 MR. WILLIAM CARTER: Well, maybe we could. 14 So if there are a number of definitions, than there are a 15 number of responses for those who are under a duty to 16 respond to interpret the facts. 17 DR. ROCCO GERACE: Yes. 18 MR. WILLIAM CARTER: Okay. And so for 19 those who are under a duty to respond, what you consider a 20 restriction may not be in their view a restriction. 21 DR. ROCCO GERACE: I think -- I'm not sure 22 how I can answer what someone else will think. I know 23 what I would find to be a restriction and -- and I think 24 what I had been trying to impart is my concern regarding 25 the lack of reporting when restrictions occur.

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1 And the question that was posed to me was 2 whether or not the restriction that was outlined in the 3 letter was a restriction that -- that was significant, and 4 my response was, Yes, it was, and that it -- it was my 5 view that it should have been the subject of a mandatory 6 report. 7 MR. WILLIAM CARTER: Well, what you were - 8 - let -- let's go to the letter. Could I have document 9 137850, please? 10 DR. ROCCO GERACE: Can you direct me to 11 the printed version? 12 COMMISSIONER STEPHEN GOUDGE: And do you 13 have tab number for that? 14 MR. WILLIAM CARTER: I -- I don't. I'm so 15 sorry, I -- 16 COMMISSIONER STEPHEN GOUDGE: That's okay, 17 somebody will have one (1). Mr. Centa, do -- 18 MR. ROBERT CENTA: Volume 3, Tab 67. 19 COMMISSIONER STEPHEN GOUDGE: Thank you. 20 21 CONTINUED BY MR. WILLIAM CARTER: 22 MR. WILLIAM CARTER: It is on the screen, 23 Doctor, if that is of any assistance to you, but I'm -- 24 DR. ROCCO GERACE: It's hard -- it's hard 25 with the glasses. Okay.

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1 MR. WILLIAM CARTER: Okay, the evidence, 2 Doctor, is that this document may or may not have, in 3 fact, been sent to Dr. Smith, do you appreciate that? 4 DR. ROCCO GERACE: Yes. 5 MR. WILLIAM CARTER: Okay. And do 6 appreciate that the author is deceased? 7 DR. ROCCO GERACE: I'm sorry, that the 8 author is...? 9 MR. WILLIAM CARTER: Deceased. 10 DR. ROCCO GERACE: I -- I wasn't aware of 11 that. 12 MR. WILLIAM CARTER: Dr. Becker has died 13 several years ago. 14 DR. ROCCO GERACE: I didn't know that. 15 MR. WILLIAM CARTER: Okay. So you 16 appreciate that Dr. Becker is not here to explain what he 17 meant, whether he gave this to Dr. Smith, and if he 18 didn't, why he didn't. 19 DR. ROCCO GERACE: I -- I would gather 20 that's a position from your previous statement, yes. 21 MR. WILLIAM CARTER: Right, okay. So, if 22 you go to the second paragraph in the second sentence, I 23 think this was the operative line you were directed to. 24 It says: 25 "Therefore, I regret to inform you that

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1 I must curtail your responsibilities in 2 surgical pathology." 3 Is that the pivotal phrase from your 4 perspective? 5 DR. ROCCO GERACE: Well, that's one (1) of 6 them, yes. 7 MR. WILLIAM CARTER: Okay. And were you 8 aware that the evidence was that surgical pathology was 9 one (1) of the rotations that the pathologists -- one (1) 10 of the du -- duty rosters, if you like, that the 11 pathologists were expected to fill? 12 DR. ROCCO GERACE: I was not aware of 13 that. 14 MR. WILLIAM CARTER: Okay. Surgical 15 pathology is one (1) of many of the rotations that Dr. 16 Smith exercised. 17 DR. ROCCO GERACE: Okay. 18 MR. WILLIAM CARTER: He exercised hospital 19 autopsy duty, medicolegal autopsy duty, weekend on-call 20 coverage, which included everything including surgical 21 pathology, and the evidence is, that on evenings, when he 22 was doing autopsy work, he was also covering surgical 23 pathology, even though he wasn't doing the surgical 24 pathology rota, were you aware of that evidence? 25 DR. ROCCO GERACE: I was not.

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1 MR. WILLIAM CARTER: Okay. So the 2 evidence is that even if his surgical pathology rota was 3 curtailed, he would still be doing considerable surgical 4 pathology as it came in as a result of his other 5 responsibilities on the duty roster, were you aware of 6 that? 7 DR. ROCCO GERACE: I was not. 8 MR. WILLIAM CARTER: Okay. So, you would 9 agree with me that the -- the author of this letter, of 10 course, would be aware of that because he was the Head of 11 the Division and responsible, ultimately, for setting the 12 duty roster, does that seem reasonable to you? 13 DR. ROCCO GERACE: It does. 14 MR. WILLIAM CARTER: That was the evidence 15 of Dr. Thorner who was his Associate Chief, and who was, 16 in fact, set out the duty roster. And it was his evidence 17 that in his judgment, Dr. Smith was a competent surgical 18 pathologist and that he had got himself in a situation 19 where he may have been overworked. 20 And that in discussions with Dr. Becker, it 21 was decided to allow him to do less surgical pathology for 22 a period of time so that he could focus more on his 23 autopsy work, some of which was medicolegal, and this 24 would give him an opportunity to get caught up. 25 And he was also encouraged to get some more

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1 education in this area because there was a concern that he 2 was maybe not as focussed as he should be. Although, Dr. 3 Thorner was of the view that he understood the basics and 4 indeed, he -- in the year after this letter was written, 5 he was double board certified by the American Board of 6 Pathologists in pediatric pathology. 7 And Dr. Thorner felt that that was an 8 adequate indication of his skills in the area of surgical 9 pathology. Were you aware of all those facts? 10 DR. ROCCO GERACE: No. 11 MR. WILLIAM CARTER: Okay. 12 DR. ROCCO GERACE: But -- but if -- if I 13 can be allowed, that's one (1) particular component of 14 this letter. The other components were the fact that he 15 had been reminded about these deficiencies over a period 16 of two (2) years. They clearly had not been dealt with. 17 And the third component is that he -- he 18 suffered a cut in his income or that was what was 19 suggested. And again, I don't know what happened. And 20 the combination of those three (3) issues, if you had told 21 me that his - his responsibilities were shifted, and he 22 was doing less of one (1) thing and more of another thing, 23 than that might be different. 24 I interpret from this letter, though, that 25 there was actually a restriction in the totality of his

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1 responsibilities such that his income was -- was adjusted 2 downward. 3 MR. WILLIAM CARTER: Okay. 4 DR. ROCCO GERACE: That implies to me a 5 restriction. 6 MR. WILLIAM CARTER: Okay. Now, if you're 7 wrong about those facts, you'd have to be wrong about your 8 conclusion as well? 9 DR. ROCCO GERACE: I'm basing that 10 conclusion on these facts, yes. 11 MR. WILLIAM CARTER: Right. So if -- if 12 it turns out that, in fact, his salary was not reduced 13 then that would be another component that would be absent 14 from your analysis? 15 DR. ROCCO GERACE: That would be one (1) 16 of three (3), yes. 17 MR. WILLIAM CARTER: Right. So now -- 18 you'd now be missing two (2) of three (3)? 19 DR. ROCCO GERACE: I might be. 20 MR. WILLIAM CARTER: Yeah. But the 21 evidence was that in respect of his salary, there was no 22 adjustment in his salary. And that the twenty thousand 23 dollars ($20,000), according to Dr. Thorner, was a 24 calculation determined to put Dr. Smith on an even footing 25 with his colleagues because he was doing more medicolegal

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1 work for which he was paid a fee-for-service while he was 2 still on full hospital salary. 3 And so Dr. Thorner had gone through a 4 calculation which he shared with Dr. Becker arriving at 5 twenty thousand dollars ($20,000) as being an offset to 6 cover the cost to the -- offsetting cost, if you like, to 7 the hospital of the amount of time Dr. Charles Smith was 8 spending doing fee-for-service work, and these were the 9 fees that he calculated. 10 So in fact, this was not meant to be a 11 penalty, according to Dr. Thorner. It was meant to be an 12 adjustment to put him on equal footing with his 13 colleagues. And in any event, there's no evidence that, 14 in fact, it was implemented. So would you -- if those 15 were the facts? 16 DR. ROCCO GERACE: As I look at this case 17 and -- and we can -- we can sit and debate the various 18 facts -- is that there were deficiencies over a two (2) 19 year period that were not dealt with. If we look at the 20 legal versus the ethical responsibilities, my view is that 21 regulation of doctors is a continuum. 22 It's a continuum from the individual doctor 23 to the institution to the regulatory body. When there are 24 problems that are ongoing, it's -- it's my impression that 25 frequently hospitals are reluctant to report and, in fact,

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1 don't report. 2 And I find that factor troubling. And this 3 is not necessarily relati -- relevant to Sick Kids, but to 4 hospitals across this Province. This letter, as it was 5 presented to me, represents an indication of a failure to 6 report when there are concerns that longstanding and not 7 being dealt with. 8 And I think that's the tenor, so we can 9 talk about the legal requirements, whether it meets the 10 legal definition of a restriction. 11 I would ask respectfully that that be 12 debated by the lawyers, but we can also talk about the 13 ethical responsibility; that there be a continuum. 14 It would be clear from this letter, 15 notwithstanding, which facts are actually true, that there 16 was a problem and that this problem was persistent, and -- 17 and it's really that issue generally that gives rise to 18 concern. 19 So we can -- and in -- in my review of the 20 -- of the evidence that was led previously is that there 21 was reference both to the legal obligation and the ethical 22 obligation, and so my -- my point is, I would interpret 23 this as a legal obligation and you may be able to persuade 24 many that it's not, but I think there is an obligation for 25 a continuity of regulation when there are persistent

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1 problems. 2 MR. WILLIAM CARTER: Right, but you would 3 agree with me that what drives the interpretation of this 4 letter is the facts as they existed at the time. 5 DR. ROCCO GERACE: The -- the -- sure. 6 MR. WILLIAM CARTER: Yeah, I mean, you -- 7 DR. ROCCO GERACE: Yeah. 8 MR. WILLIAM CARTER: -- you know, whether 9 or not he was being restricted or he was being redeployed, 10 whether or not he lost twenty-thousand dollars ($20,000) 11 or he didn't, these are facts that matter, do they not? 12 DR. ROCCO GERACE: Or whether or not there 13 were reminders over a period of two (2) years over the 14 delay and completion of reports. 15 MR. WILLIAM CARTER: I understand. 16 DR. ROCCO GERACE: Completion of reports - 17 - timely completion of reports if not done is a -- is a 18 grounds for professional misconduct. 19 MR. WILLIAM CARTER: Yes. It may be. 20 DR. ROCCO GERACE: May be. 21 MR. WILLIAM CARTER: But it -- it depends 22 who's set the parameters and whether they're parameters of 23 the profession or whether they're institutional parameters 24 that may be higher than those of the profession. Those 25 are factors, are they not?

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1 DR. ROCCO GERACE: There are many factors. 2 MR. WILLIAM CARTER: Right. 3 DR. ROCCO GERACE: And that would be -- 4 that would be a determination made by a panel of peers, 5 yes. 6 MR. WILLIAM CARTER: Which takes me -- 7 COMMISSIONER STEPHEN GOUDGE: You're 8 running out of time, Mr. Carter. 9 10 CONTINUED BY MR. WILLIAM CARTER: 11 MR. WILLIAM CARTER: -- takes -- it's a 12 perfect segue. Doctor, I take it, that in your view, the 13 reporting obligations of members and institutions is 14 something which you personally believe, as Registrar and 15 in your role as Registrar, is a matter that requires 16 ventilation here at the Commission, is that fair? 17 DR. ROCCO GERACE: I believe that that -- 18 that -- 19 MR. WILLIAM CARTER: And your -- 20 DR. ROCCO GERACE: -- does require 21 attention. 22 MR. WILLIAM CARTER: And you're 23 participating in a -- in a policy discussion in which this 24 will be a topic. 25 DR. ROCCO GERACE: I -- I know I'm

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1 participating in a policy discussion. I'm heartened to -- 2 to know that that will be discussed. 3 MR. WILLIAM CARTER: And would you agree 4 with me that that's the appropriate place to have this 5 discussion? 6 DR. ROCCO GERACE: I -- I -- 7 COMMISSIONER STEPHEN GOUDGE: It's another 8 place where we can have this discussion, Mr. Carter. 9 DR. ROCCO GERACE: I don't know where the 10 appropriate place is. I will be guided by you and others 11 where the appropriate place is. 12 MR. WILLIAM CARTER: Well, I'm note -- I'm 13 not asking you to make a legal interpretation of this 14 document. 15 COMMISSIONER STEPHEN GOUDGE: It will be 16 discussed. 17 DR. ROCCO GERACE: Wonderful. 18 MR. WILLIAM CARTER: Thank you, 19 Commissioner. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 21 Carter. 22 Ms. Silver...? 23 24 RE-CROSS-EXAMINATION BY MS. CAROLYN SILVER: 25 MS. CAROLYN SILVER: Thank you. Just one

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1 (1) issue I'd like to raise with you, Ms. Doris. You were 2 asked by counsel, Mr. Wardle, and he put to you that the 3 only information you had with respect to Inspector 4 Kirkland's position was the information from the 5 Peterborough Police Department, and that was the summary 6 prepared by Sergeant Charmley, which I think is at Volume 7 III, Tab 51. 8 So if you could just turn with me to Volume 9 III, Tab 51, that's PFP043639. 10 11 (BRIEF PAUSE) 12 13 MS. CAROLYN SILVER: And he turned you to 14 the second last paragraph of that summary of evidence. 15 MS. ELIZABETH DORIS: Yes. 16 MS. CAROLYN SILVER: In terms of that, he 17 said -- I think he said to you that was the information 18 you had with respect to Dr. -- with respect to Constable 19 Kirkland's position on what had happened at the autopsy 20 with respect to the hair. 21 MS. ELIZABETH DORIS: Yes, but there was 22 another document, as well, that was referred to. 23 MS. CAROLYN SILVER: That was referred to 24 by who? 25 MS. ELIZABETH DORIS: I believe Mr. Wardle

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1 referred to it. 2 MS. CAROLYN SILVER: Okay. 3 MS. ELIZABETH DORIS: I thought he 4 identified that first. He didn't take me to that 5 document, but I thought he indicated two (2) documents and 6 then took me to this document. 7 MS. CAROLYN SILVER: Okay, I -- I want to 8 turn you to another document. If you would flip with me 9 to Tab 49 of that same binder. And that's PFP147780. And 10 if you go to page 7, and you'll see the page numbers at 11 the top of the page. And we're looking at the bottom of 12 that page. 13 I don't -- I don't think Mr. Wardle took 14 you to this. Did you have this information before you -- 15 as well, during your investigation? 16 MS. ELIZABETH DORIS: Yes, I did. 17 MS. CAROLYN SILVER: Okay. 18 MS. ELIZABETH DORIS: Thank you. 19 MS. CAROLYN SILVER: And if you would just 20 look at that information, I'm asking you -- I'm suggesting 21 to you that we would -- we don't have to do it right now, 22 but if you compare what is contained in Tab 51 at Volume 23 III to what is contained here, and it continues from the 24 bottom of page 7 to the top of page 8. 25 It is slightly different in terms of the

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1 information received from -- from Sergeant Kirkland. 2 MS. ELIZABETH DORIS: It may be slightly 3 different. I'd have to go through it. 4 COMMISSIONER STEPHEN GOUDGE: I take it we 5 can do that at some point, Ms. Silver. 6 7 CONTINUED BY MS. CAROLYN SILVER: 8 MS. CAROLYN SILVER: Okay. So I just 9 wanted to put to you, so it's clear for the record, that 10 you had this addi -- I'm suggesting there's additional 11 information and really an additional statement from, I 12 think, it's Constable Kirkland here at the top of page 8. 13 It says: 14 "He indicated that Smith controlled the 15 autopsy, and he was directed what 16 pictures to take and what was 17 important." 18 And then it goes on. 19 "That is not information that was 20 contained in the other document." 21 Correct. 22 MS. ELIZABETH DORIS: Correct. 23 MS. CAROLYN SILVER: And what Constable 24 Kirkland said, I suggesting is also slightly different. 25 He says:

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1 "He cannot believe that he would suggest 2 it was not important or necessary." 3 MS. ELIZABETH DORIS: Correct. 4 MS. CAROLYN SILVER: And you had this 5 information as well, correct? 6 MS. ELIZABETH DORIS: Yes, I did. 7 MS. CAROLYN SILVER: And you also provided 8 this information to the experts, correct? 9 MS. ELIZABETH DORIS: Yes, I did. 10 MS. CAROLYN SILVER: And they had that 11 prior to meeting with Dr. Smith? 12 MS. ELIZABETH DORIS: Yes, they did. 13 MS. CAROLYN SILVER: And this information 14 was also before the Complaints Committee, correct? 15 MS. ELIZABETH DORIS: Yes, it was. 16 MS. CAROLYN SILVER: Okay. Those are my 17 questions. Thank you. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 19 Silver. Mr. Centa...? We are on the last lap. 20 MR. ROBERT CENTA: No questions, 21 Commissioner. Just to thank the witnesses. 22 COMMISSIONER STEPHEN GOUDGE: So let me 23 say this has been a long day. We are very grateful, 24 particularly to you, Dr. Gerace. And it has been a long 25 day. We find your evidence very helpful and the thought

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1 you put into it we are grateful for. So thank you for 2 coming. 3 MS. ELIZABETH DORIS: You're welcome. 4 COMMISSIONER STEPHEN GOUDGE: We will rise 5 then until 9:30 tomorrow morning. 6 7 (WITNESSES STAND DOWN) 8 9 --- Upon adjourning at 5:10 p.m. 10 11 12 13 Certified Correct, 14 15 16 17 ___________________ 18 Rolanda Lokey, Ms. 19 20 21 22 23 24 25