11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 January 18th, 2008 25
21 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler (np) ) 4 Robert Centa (np) ) 5 Jennifer McAleer ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich (np) ) 12 13 Brian Gover (np) ) Office of the Chief Coroner 14 Luisa Ritacca (np) ) for Ontario 15 Teja Rachamalla ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron ) 20 Grant Hoole (np) ) 21 22 William Carter (np) ) Hospital for Sick Children 23 Barbara Walker-Renshaw(np) ) 24 Kate Crawford ) 25
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo ) 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 (np) ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 Peter Wardle (np) ) Affected Families Group 14 Julie Kirkpatrick (np) ) 15 Daniel Bernstein ) 16 17 Louis Sokolov (np) ) Association in Defence of 18 Vanora Simpson (np) ) the Wrongly Convicted 19 Elizabeth Widner (np) ) 20 Paul Copeland (np) ) 21 22 Jackie Esmonde (np) ) Aboriginal Legal Services 23 Kimberly Murray (np) ) of Toronto and Nishnawbe 24 Sheila Cuthbertson (np) ) Aski-Nation 25 Julian Falconer (np) )
41 APPEARANCES (cont'd) 2 Suzan Fraser ) Defence for Children 3 ) International - Canada 4 5 William Manuel (np) ) Ministry of the Attorney 6 Heather Mackay ) General for Ontario 7 Erin Rizok (np) ) 8 Kim Twohig (np) ) 9 Chantelle Blom (np) ) 10 11 Natasha Egan (np) ) College of Physicians and 12 Carolyn Silver (np) ) Surgeons 13 14 Michael Lomer (np) ) For Marco Trotta 15 Jaki Freeman (np) ) 16 17 Emily R. McKernan (np) ) Glenn Paul Taylor 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 DAVID FRANCIS DEXTER, Resumed 4 CHITRA RAO, Resumed 5 MICHAEL JAMES SHKRUM, Resumed 6 7 Cross-Examination by Ms. Teja Rachamalla 6 8 Cross-Examination by Ms. Erica Baron 43 9 Cross-Examination by Ms. Alison Craig 57 10 Cross-Examination by Ms. Julie Kirkpatrick 86 11 Cross-Examination by Ms. Mara Greene 101 12 Cross-Examination by Ms. Suzan Fraser 131 13 Cross-Examination by Mr. Paul Cavaluzzo 146 14 Cross-Examination by Ms. Heather McKay 163 15 Re-Direct Examination by Ms. Jennifer McAleer 165 16 17 Certificate of transcript 167 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:45 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Sorry for the delay in starting, we seem to 7 have had some hitches this morning. 8 Ms. Rachamalla...? 9 10 DAVID FRANCIS DEXTER, Resumed 11 CHITRA RAO, Resumed 12 MICHAEL JAMES SHKRUM, Resumed 13 14 CROSS-EXAMINATION BY MS. TEJA RACHAMALLA: 15 MS. TEJA RACHAMALLA: Thank you, Mr. 16 Commissioner. Good morning, doctors. 17 DR. CHITRA RAO: Good morning. 18 DR. MICHAEL SHKRUM: Morning. 19 DR. DAVID DEXTER: Good morning. 20 MS. TEJA RACHAMALLA: Yesterday, you 21 answered some questions from the Commissioner and from 22 Commission Counsel regarding the insufficiency of funding 23 that the units receive from the Ministry of Community 24 Safety and Correctional Services, and I'd like to ask you 25 a little bit more about this.
71 We heard from you, Dr. Shkrum, that the 2 London unit is undergoing a detailed analysis of the 3 costs associated with performing medicolegal autopsies. 4 Can you elaborate a little more on some of the cost 5 concerns that the unit faces? 6 DR. MICHAEL SHKRUM: Well, when we were 7 funded in 2001, it was a hundred and fifty thousand 8 dollars ($150,000). Obviously, those are 2001 dollars. 9 The -- the funding has remained static until -- well, 10 since that time, since the unit was initially funded. 11 Of course wages rise; we have some 12 positions that are identified that are funded by that 13 hundred and fifty thousand dollars ($150,000). Those 14 wages rise, benefits rise, operational costs rise. 15 Our case volume has increased 16 considerably, and the complexity of those cases has also 17 increased. So there are increased costs overall with -- 18 in terms of human resources as well as operational -- 19 operational costs. 20 So certain -- certainly we do need more 21 funding in that -- in that regard. 22 MS. TEJA RACHAMALLA: And was the funding 23 in -- originally intended to cover all of your costs? 24 DR. MICHAEL SHKRUM: No. The -- the 25 intent never was to cover all the costs, but obviously,
81 costs have risen since 2001 so there should be -- should 2 be some recognition of that. 3 MS. TEJA RACHAMALLA: And what mechanisms 4 do you think there needs to be in place to ensure that 5 your units receive adequa -- adequate funding? 6 DR. MICHAEL SHKRUM: Well, I think it's 7 going to be dependent probably on our -- our case-costing 8 exercise. I think we'll have a truer idea as to what 9 these case cost the hos -- hospital, in terms again, 10 operations, support staff, and -- and professional 11 staffing. 12 MS. TEJA RACHAMALLA: Do you think there 13 needs to be any changes in your contracts or the way you 14 negotiate your contracts that might assist in this 15 process? 16 DR. MICHAEL SHKRUM: Well, I think 17 certainly the contracts should recognize that -- that the 18 increased volume and complexity of cases, and obviously 19 the funding should increase accordingly. Again, the 20 other Directors may -- may wish to elaborate on that too. 21 MS. TEJA RACHAMALLA: Dr. Rao, Dr. 22 Dexter, do you have any comments you wish to make about 23 this? 24 DR. CHITRA RAO: I think I'll let Dr. 25 Dexter answer, because they have facts, they have gone
91 into the costs, whereas in my unit the Laboratory 2 Director looks after the financial aspect of it so I'm 3 not very familiar with it. 4 But I've already told them that I would 5 like to have a breakdown because the only thing I hear 6 from my Laboratory Director is the money we generate 7 through medicolegal autopsies, as well as what money we 8 get. 9 Two hundred thousand (200,000) is not 10 enough to support two (2) professional staff in the 11 department, two and a half (2 1/2) secretaries and two 12 (2) morgue attendants who we share with the hospital 13 side. But the actual breakdown I'm not familiar, so -- 14 but once I get that, then I'll forward it to the 15 Commission. 16 DR. DAVID DEXTER: Much of what Dr. 17 Shkrum has said is applicable to our unit, as well. 18 We've received the same amount of funding -- a hundred 19 and fifty thousand dollars ($150,000) -- two thousand and 20 one dollars ($2001), and facing the same issues, and 21 there's -- really, I'd just be repeating what he said. 22 MS. TEJA RACHAMALLA: Okay. Well, in the 23 last few years all of you have faced increasing 24 responsibilities in your positions in the form of peer 25 reviews, as well as collaborating with your peers on
101 various initiatives; for example, the recent revised 2 autopsy guidelines. 3 Do you receive any compe -- compensation 4 for these additional duties? 5 DR. DAVID DEXTER: No. 6 DR. CHITRA RAO: No. 7 DR. MICHAEL SHKRUM: Yes. 8 MS. TEJA RACHAMALLA: Can -- can you tell 9 us about that, Dr. Shkrum? 10 DR. MICHAEL SHKRUM: It's all upfront 11 there; it's in the annual report. No, I receive a 12 stipend of ten thousand dollars ($10,000). Again, this 13 is actually the similar stipend that other medical legars 14 -- medical leaders in our department receive; that is a 15 medical leader for the surgical pathology area, cytology, 16 et cetera, so there are medical leaders that also receive 17 a similar stipend. 18 MS. TEJA RACHAMALLA: Okay. 19 DR. DAVID DEXTER: Perhaps I should 20 clarify. I do receive a small stipend for Directorship 21 of the Autopsy Unit and it does encompass, I think, 22 intrinsically with -- with that -- the Forensic Unit -- 23 although it's not specified to that. 24 It's a small amount of money, and it's a 25 little similar to Dr. Shkrum's setup; not as much as Dr.
111 Shkrum's, though. 2 MS. TEJA RACHAMALLA: Do -- do you think 3 these are sufficient -- do you think these are sufficient 4 for compensating for the time that you spend on these 5 additional administrative and other duties? 6 DR. MICHAEL SHKRUM: I'll keep 7 temporarily quiet for now and let the others answer that. 8 DR. CHITRA RAO: No, I don't get anything 9 for being the Director of the Unit, and I don't get 10 anything for reviewing. And occasionally the Regional 11 Supervising Coroner, he may say, Okay, you can bill me, 12 but so far, I haven't received any. 13 And we have a new Regional Supervising 14 Coroner appointed to -- actually, he was our coroner, but 15 he is coming back to our area as a Regional Supervising 16 Coroner. He has said that if I review some cases for 17 him, I could bill him, but so far, I haven't received 18 anything for reviewing or -- for conferences -- not con - 19 - for discussion about the cases. 20 And when we have case conference of the 21 homicide suspicious, sometimes it can take two (2), three 22 (3) hours we don't get anything. And we go out of town, 23 nothing; we don't get anything, not even a mileage. 24 MS. TEJA RACHAMALLA: So there are 25 significant demands on your time with these additional
121 duties? 2 DR. CHITRA RAO: That's correct. 3 MS. TEJA RACHAMALLA: Okay. 4 DR. MICHAEL SHKRUM: I should just add, 5 then, that, you know, the stipend I receive is basically 6 benchmark. My -- my Chair in Chief, Dr. Garcia, has 7 commented that -- you know, the amount of monies we 8 receive doing our administrative function, as the other 9 medical directors and myself -- it's probably not enough 10 in recognition of what we do, so, you know, if there's 11 going to be some type of negotiation to increase the 12 stipends from zero or, you know, up -- upward, you know, 13 ten thousand dollars ($10,000) is probably just a 14 benchmark. 15 I mean, we do a considerable amount of 16 work, particularly, in the last couple of years with this 17 peer review process. I do receive a -- Dr. Stanborough 18 actually -- our Regional Coroner's negotiated a small 19 fee of two hundred and fifty dollars ($250) that can be 20 given to us if we do review a case of a pathologist from 21 outside our area, so there is bit of money there, but 22 certainly it's -- you know, it's really a small token of 23 a recognition of our -- our efforts in those cases. 24 MS. TEJA RACHAMALLA: Okay. Are there 25 any other examples of static funding in the system?
131 DR. MICHAEL SHKRUM: Yes, there are. 2 Another example would be the witness fees for going to 3 Court. Currently they stand at six hundred and fifty 4 dollars ($650) per day and three hundred and twenty-five 5 dollars ($325) for a half day and a hundred and twenty- 6 five dollars ($125) per hour and -- sorry, part of a half 7 day for -- for pathologists to go as a expert witness in 8 a -- in a criminal case. 9 This funding has been in place for many 10 years; it has not changed. The Ontario Association of 11 Pathologists -- and historically, the OAP, the Ontario 12 Association of Pathologists has actually negotiated the 13 medicolegal autopsy fee for many years with -- with the 14 Ministry. In addition, in this particular initiative, 15 they actually took it upon themselves to -- to try to 16 negotiate an increase in this witness fee realizing that 17 many other members actually do not do this kind of 18 activity. 19 It's just a small, small number of people 20 that actually participate in coroner's autopsies. There 21 were a series of letters that were sent to the Ministry 22 of the Attorney General in 2006 by actually Dr. Divaris, 23 who is a past president of the OAP -- and incidentally, 24 both Dr. Dexter and I are past presidents of the OAP -- 25 and he sent this letter to the Ministry, and when I spoke
141 to Dr. Joshi -- that's J-O-S-H-I -- he's the current 2 president of the OAP -- a few days ago he said that no 3 progress has been made in that -- in that regard. 4 MS. TEJA RACHMALLA: Okay. With regard 5 to your evidence about the current peer review system 6 that's now in place for homicide and criminally 7 suspicious cases, do you think that this system helps to 8 ensure that a quality product in -- in other words, the 9 post-mortem report, is being provided to the various 10 consumers of that product -- the coroners and the court? 11 MS. CHITRA RAO: Yes. 12 DR. MICHAEL SHKRUM: Yes. 13 DR. DAVID DEXTER: Yes. 14 MS. TEJA RACHMALLA: Okay. There's been 15 a lot of evidence at the inquiry about the timeliness of 16 autopsy reports, and this has become an important issue 17 here at the Inquiry. Dr. Rao, has timeliness been an 18 issue at your unit? 19 MS. CHITRA RAO: Yes, and this has been 20 ongoing. And the reason being, Hamilton is -- our unit 21 is a very busy unit. We handle roughly between six 22 hundred (600) and six hundred fifty (650) cases a year, 23 and we have two (2) full-time pathologists. And at the 24 time when Dr. King was retiring, he had quite a lot of 25 backlog of cases and so he had to finish his before he
151 left the department. 2 So I had to relieve him one (1) month -- 3 or two (2) months -- his cases -- so that he could 4 complete. At that time, I had to take the additional 5 cases so I built up more backlog. And we also had acute 6 shortage of technologists. And the reason being two (2) 7 of the staff -- one (1) went on stress leave, another one 8 went on pregnancy -- and -- maternity leave, so they 9 cannot be replaced. 10 And to -- so -- and there was a time we 11 were finding difficulty to hire technologists. So -- and 12 for their priority is surgicals because due to 13 amalgamation, the surgical material from Hamilton General 14 and Henderson was processed at Hamilton General. 15 So for them that was a priority so the 16 autopsy slides were put aside. Then when they realized 17 Dr. King was leaving and they had to finish his cases so 18 his cases took priority. And then when he left, then I 19 had a Resident. So then the Resident's cases took 20 priority, then the Fellow. 21 So in the process, I started accumulating, 22 and I have got vast numbers of cases to complete. And 23 now what I do is on a priority basis, like every time I 24 go to my department, my secretary will say, I received a 25 phone from this Crown or this coroner.
161 He wants this report to become completed. 2 So I go through that and then I try to sign off. 'Cause 3 I try to do all the homicide cases, inquest cases first, 4 and then the hospital-admitted cases later on. And then 5 I'm also involved -- as a Director. I have to go for 6 these meetings and then we have those conferences, 7 reviewing process. That takes a lot of time. 8 And I sometimes work in my department 9 until 11:00 p.m., and -- and that's staff. And 10 especially at my stage -- 11 MS. TEJA RACHMALLA: And you're tired. 12 MS. CHITRA RAO: -- it's very difficult. 13 And -- and, you know, my family is affected by that. And 14 -- but there is no solution. If I -- only thing is my 15 secretary says, Dr. Rao, stop doing new cases, just 16 complete this. Then who -- who's is going to get the 17 load? My colleague, Dr. Fernandes. So he's going to 18 face the same situation. 19 And -- and then our facility's fee 20 increased from forty (40) to four hundred (400), so then 21 we put pressure on the administration saying that now 22 you're getting extra money, you have to hire somebody -- 23 technologist -- and help us. So then they realized that 24 and they did. 25 So it's one (1) or two (2) technologists.
171 They can process about fifteen/twenty (15/20) cases a 2 day, but you can't expect the pathologist to sign fifteen 3 (15) cases a night. It takes time. So I don't know the 4 solution. The only solution is we have to have more 5 manpower. We have to work with more forensic 6 pathologists in our unit. 7 MS. TEJA RACHMALLA: So you -- you have a 8 large backlog of cases and a heavy workload and not 9 enough people to -- to -- or resources to address this? 10 MS. CHITRA RAO: That's correct. 11 MS. TEJA RACHMALLA: And too, Dr. Shkrum 12 or Dr. Dexter, do you have anything like you'd like to 13 add? 14 DR. DAVID DEXTER: When we reviewed our 15 current status of incomplete cases -- cases that were 16 pending -- we tried to determine the reason why they were 17 pending, and the biggest factor was waiting for 18 toxicology reports. 19 And everything else was done. It was just 20 waiting to confirm whether or not there were findings in 21 that area. So that would be an issue for -- for our 22 unit. The manpower aspect of things is not as critical 23 in -- in our area, but toxicology would be a problem. 24 MS. TEJA RACHAMALLA: Okay. 25 DR. MICHAEL SHKRUM: I agree with Dr.
181 Dexter about the toxicology, but also to realize that one 2 (1) of the disadvantages of a hospital-based model where 3 you have a number of pathologists performing coroner's 4 autopsies, and I should just add that -- you know, I work 5 with an excellent group of pathologists, and they're 6 quite willing to do these cases -- these routine cases. 7 They provide important consultative 8 activity, you know, for me, and -- consultation for -- on 9 some of my difficult cases. But the problem we have is 10 that in a hospital-based setting, there are patient care 11 issues. Patients have priority. There are surgical 12 specimens from those pasins -- patients, so obviously our 13 report turn-around-time is critical in those cases 14 because obviously treatment may be affected by that. 15 So, if there are delays -- now we do have 16 a mechanism in place in our department if there are 17 inquiries made through the department -- if a coroner 18 phones or family phones inquiring about a report, I am 19 notified and I'll make a walk down the hall and have a 20 little discussion with the pathologist as to what the 21 delay is. 22 And I've certainly urged our pathologists 23 to get -- you know, get any notification like that, you 24 know, put that at the top of your list. Much like Dr. 25 Rao, in that case deserves priority. It may not be
191 criminally suspicious obviously because they -- these 2 other pathologists are not doing cases like that, but is 3 of critical concern to the family. 4 DR. DAVID DEXTER: I'll just reiterate 5 that our setting is very similar. I've got a lot of very 6 good colleagues who do these regular medicolegals, but in 7 just the same setting, they have a very high work load of 8 clinically focussed pathology to do. 9 And I take the same role, that if 10 inquiries are coming -- and it's often coming through the 11 Regional Coroner -- that there's an inquiry about the 12 status of a report; that I will take it upon myself to 13 determine what those issues are and see if I can expedite 14 it in any way. 15 And again, ensure that my colleague puts 16 it to the top of the many important things that they -- 17 they have to do. 18 DR. CHITRA RAO: Can I add a few more 19 things? 20 MS. TEJA RACHAMALLA: Sure. 21 DR. CHITRA RAO: We have, of course, two 22 (2) part-time cardiac vascular pathologists, and so 23 sometimes when we ask their help, there is a slight delay 24 because one (1) person comes three (3) days in a -- a 25 course of two (2) weeks, and the other pathologist.
201 So if a person has received one heart on 2 their time -- so they have to wait exactly another month 3 before they could process, so there is a slight delay 4 there; and toxicologists, definitely. 5 And then second is we are in a teaching 6 environment and quite a lot of -- about 15 percentage of 7 total cases -- are complicated medical cases -- come from 8 the admission. And those take a long time to complete. 9 And chart after chart you have to go 10 through, and you have to review all aspects of the 11 medical management. And those are the headache issues. 12 And we always tell the Regional Supervising Coroner, Is - 13 - is there a necessity to make those cases a medicolegal 14 cases? Some, of course, there is, treatment, concern and 15 management, but other than that. 16 So those are the cases again delays. And 17 just two (2) of us, and now these three (3) days I've 18 been here, so my colleague is taking over. Monday I have 19 to go to court in one jurisdiction that's in Milton. 20 Tuesday I have to go to court in 21 Brantford. Wednesday I have to go to court in St. 22 Catharine's. So that takes time, so that means I'm away 23 from the department for six (6) days. 24 MS. TEJA RACHAMALLA: So all of these 25 have demands on your time --
211 DR. CHITRA RAO: Yes. 2 MS. TEJA RACHAMALLA: -- and difficult 3 for you to -- to get to some of the cases that are 4 backlogged. I want to move on to another issue that's 5 come up. There's been a great deal of discussion about 6 the desirability of reviewing past criminal cases where 7 there's been a diagnosis of Shaken Baby Syndrome. 8 Dr. Rao, what's your view about this type 9 of a proposal? 10 DR. CHITRA RAO: I have no objection in 11 undertaking the review of one hundred and forty-two (142) 12 cases. But before the Committee decides to do that, 13 first of all, we have to agree on the issue. 14 And we know now the -- the entity of 15 Shaken Baby Syndrome has been there for some quite time 16 since 1970, but now all of a sudden, there's such a small 17 group of expertise posing that entity. So what we have 18 to do is, first of all, we have to decide where do we 19 stand in the case of Shaken Baby Syndrome. 20 So what they have to do is get these two 21 (2) groups together with like a general panel discussion 22 including the pathologist and find out what do we call as 23 shaken baby; what are the criteria, when can we call it? 24 And we have to have a general consensus before we say, 25 Let's review it.
221 And especially like Dr. Michael Shkrum and 2 myself, we do these cases. We don't know where we stand. 3 So there has to be some general opinion as to where do we 4 go from. So before we undertake the interview -- the 5 review process -- I think we have to get the people 6 together -- people who don't agree and who agree -- and 7 to see what their general -- what can we do to come to 8 some general agreement as to whether this happens or that 9 happens. 10 Because even though everybody quotes Dr. 11 Geddes -- now been recent two (2) articles against her 12 piece when she had published a paper saying that hypoxic 13 in -- conditions of hypoxic ischemic and encephalopathy, 14 they can have subdural hemorrhage and they can have 15 retinal hemorrhage, but there are two (2) other articles. 16 One (1) by Dr. Roger Baird (phonetic), he 17 -- they did a study involving experts from Denmark, 18 involving experts from London, Germany, and states, and 19 United Kingdom. And they have said -- they have reviewed 20 cases -- and they've said, In all our cases of hypoxic 21 ischemic conditions of varying causes, we did not find 22 subdural hemorrhage or retinal hemorrhage so we don't 23 agree with her theory. 24 There is another paper from England 25 authored by Punt (phonetic). He says the same. So now
231 already we have got two (2) and plus I have done -- my 2 fellow has done research on reviewing all the retinal 3 hemorrhages cases under two (2) years, and we did not 4 find -- in cases of not only natural disease, but cases 5 of motor vehicle accident, cases of accidental fall from 6 short fall or long fall -- we did not find subdural or 7 retinal hemorrhage. 8 So there are lots of questions. So people 9 who do studies on this, they all have to meet around the 10 table and say, Come on, you know, before putting -- 11 everything has to be peer reviewed. 12 MS. TEJA RACHAMALLA: Dr. Shkrum, do you 13 have anything that you'd like to say about this? 14 DR. MICHAEL SHKRUM: Yes, it might be 15 like putting cats and dogs in the same room, but never -- 16 nevertheless, I think, you know, there has to be some 17 type of consensus before you proceed with a review like 18 that. It's not just the pathology aspects of it, but 19 also the investigative aspects also play a role; the role 20 of confessions, et cetera, et cetera. 21 I think, you know, there has to be a 22 consensus. You know, the gate -- great Canadian 23 compromise may come out of that sort of exercise, but at 24 least, there are now criteria that says, Okay, these 25 cases do not have to be reviewed. They're quite
241 straightforward. Everybody accepts that this is a so- 2 called Shaken Baby Syndrome, but there are other cases 3 that need to be -- need to be reviewed. 4 So -- and also, it also fulfills a very 5 important educational component 'cause it -- during that 6 process if you get the, as I said yesterday, the thin 7 grey -- grey line of people that continue to do these 8 cases in that same room, we also become educated in that 9 process. 10 And it also provides a guidas -- guidance 11 to us in the future when we do those kind of cases. 12 COMMISSIONER STEPHEN GOUDGE: Dr. Shkrum, 13 in that kind of attempt to build consensus, would you be 14 looking for a common pathology view? 15 DR. MICHAEL SHKRUM: Well, I would hope 16 that something common would -- there must be some common 17 themes that all these experts would accept that might 18 indicate that there's been some type of suspicious trauma 19 that's occurred. I mean, the trouble with a review like 20 that is it may be skewed to the experts that you pick to 21 review. 22 If you have a camp that says, you know, We 23 don't believe in this particular entity or this triad to 24 whatever that is associated with it, well, that's the 25 kind of review you're going to get. If you get experts
251 to say, well, definitely that's what it is just based on 2 a few findings, well, that's the kind of review you're 3 going to get. 4 So as I said, there probably has to be 5 some type of consensus on a provincial basis in our own 6 sort of system that will -- and proceed with the review 7 process. 8 COMMISSIONER STEPHEN GOUDGE: Is it a 9 realistic prospect that that consensus is achievable? 10 DR. MICHAEL SHKRUM: Well, it might be 11 like cats and dogs, as I said. 12 COMMISSIONER STEPHEN GOUDGE: Yes, I 13 guess my sense is -- the three (3) of you know much more 14 about it than I do -- is that the science has moved from 15 a relatively stable consensus of the triad being 16 indicative of Shaken Baby Syndrome to a present state 17 where there is significant disagreement -- 18 DR. DAVID DEXTER: Yes. 19 COMMISSIONER STEPHEN GOUDGE: -- among 20 the scientists -- 21 DR. MICHAEL SHKRUM: Well, you know -- 22 COMMISSIONER STEPHEN GOUDGE: -- as to 23 whether the triad constitutes enough to diagnosis shaken 24 baby? 25 DR. MICHAEL SHKRUM: Well, it might be
261 starting off like, What is the triad? 2 COMMISSIONER STEPHEN GOUDGE: Something-- 3 DR. MICHAEL SHKRUM: That -- that'll be a 4 start. Like what is this triad that we're talking about. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. MICHAEL SHKRUM: People might have 7 different definitions for that. 8 COMMISSIONER STEPHEN GOUDGE: Right. And 9 I guess a second layer of challenge seems to me to be in 10 each of the cases, albeit let's take the number that Dr. 11 Pollanen used -- a hundred and forty-two (142) -- while 12 they were classified as shaken baby, each case would have 13 its own unique facts so that it might be triad; it might 14 be triad plus a little; it might be triad plus a lot. 15 DR. MICHAEL SHKRUM: That's correct. 16 COMMISSIONER STEPHEN GOUDGE: So what 17 would one be looking for even if one developed a 18 consensus about the science? 19 DR. MICHAEL SHKRUM: I guess that remains 20 to be seen. 21 DR. CHITRA RAO: Seen. 22 DR. MICHAEL SHKRUM: Yeah. We -- we -- 23 that's why we would need this kind of discussion to take 24 place with -- with the appropriate experts. 25 COMMISSIONER STEPHEN GOUDGE: Yeah. Dr.
271 Dexter, do you have -- is my, sort of, lay description of 2 the evolution of the science anywhere close to an 3 accurate description of where it's moved? 4 DR. DAVID DEXTER: It's -- it's my 5 understanding and -- that -- yes, you're on the ball 6 here. The challenges we're trying to -- strike standards 7 of what appears to be a moving target, and that's a 8 terribly difficult thing to do. 9 And we've had consensus statements before, 10 you know. This is not an uncommon thing in difficult 11 areas of pathology. People meet -- world experts -- they 12 sit around the table -- and in 1992, consensus statement 13 on the diagnosis of, but things change. 14 And so I -- I support my colleague's 15 premise that given what's out on the table -- what this 16 Commission has heard, for example. We do need to know 17 what we're looking and what we're looking at, and what 18 sort of [in quotes], "facts" or questionable facts are 19 out there; issues with regards to definitions of the 20 triad. 21 My colleagues have expressed some concerns 22 about whether somebody's definition is the same as 23 somebody else's. We -- we need to look at that with an 24 open mind and to see where we are with it. 25 Now, let's move five (5) years forward.
281 There may be more scientific information coming forward. 2 It may change the -- the set of cards that we've been 3 dealt with yet again. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 Right. 6 DR. DAVID DEXTER: And this, I think, 7 probably defines this area reasonably well; it -- it's 8 difficult, but I think we do have to take into account 9 what we've -- what we know today, and I mean today, given 10 what you've heard. 11 COMMISSIONER STEPHEN GOUDGE: And what we 12 know today isn't just Ontario; it's a worldwide 'we'. 13 DR. DAVID DEXTER: Yes, it's a worldwide 14 'we'. 15 COMMISSIONER STEPHEN GOUDGE: Okay, 16 thanks. 17 18 CONTINUED BY MS. TEJA RACHAMALLA: 19 MS. TEJA RACHAMALLA: Okay, I want to ask 20 you about questions you -- you had yesterday regarding 21 police taking notes during your autopsies. All three (3) 22 of you indicated that you discouraged the taking of such 23 notes because there are a number of free flowing 24 discussions that take place that are of a preliminary and 25 educational nature that may be misleading if taken out of
291 context. 2 What are your thoughts about the idea of 3 videotaping or audio taping during the autopsy? 4 DR. DAVID DEXTER: No to both of those. 5 These things may go on for hours in a prolonged autopsy, 6 and again, I -- I don't think this is helpful. I would 7 not support that. The only setting in which I have 8 raised the issue of the use of video -- and it is video 9 without sound and without tape -- is to move some of the 10 people out of the autopsy room in dealing with issues 11 relating to bio-hazards; rather than having the 12 identification officers, the detectives, and -- and maybe 13 the fire marshal -- all in the autopsy room makes it a 14 crowded environment. 15 And those people need perhaps to observe 16 the post-mortem. I don't have a problem with that, but 17 in our physical setting, the role of a video to record 18 the acti -- I -- I have to be careful, I should not use 19 the word "record", but to allow what is going on in the 20 autopsy room to be looked at from a safe environment in a 21 distant room would be helpful to us. 22 We don't have a window on the autopsy 23 suite to allow for a viewing room. That's the only 24 circumstance in which I found a reasonable argument for 25 that. The only other time we use videotape is if we're
301 doing a very specialized procedure and we might want to 2 videotape it for an educational purpose. 3 MS. TEJA RACHAMALLA: Do you have 4 concerns about the discussions that take place during the 5 autopsy; that if you had an audiotape, or a videotape 6 with audio component, that that would be of concern to 7 you? 8 DR. DAVID DEXTER: Yes, it would be. 9 MS. TEJA RACHAMALLA: Okay. And, Dr. Rao 10 and Dr. Shkrum, you feel the same way? 11 DR. CHITRA RAO: I don't like it. 12 MS. TEJA RACHAMALLA: Okay. 13 DR. CHITRA RAO: And only thing is we 14 have occasionally videotaped an autopsy for educational 15 purposes. 16 MS. TEJA RACHAMALLA: Okay. 17 DR. MICHAEL SHKRUM: Yes, again audiotape 18 would be inhibiting for any sort of free -- free 19 discussion, particularly teaching. Videotaping I think 20 is -- is -- these cases can go for hours. It's a lot of 21 videotape. 22 We do have guidelines in place, and as 23 part of those guidelines for our criminally suspicious 24 case -- cases, there are images taken that will 25 memorialize both positive and negative findings in a
311 particular case. 2 That -- that should be sufficient in most 3 instances. 4 MS. TEJA RACHAMALLA: Okay. What role do 5 hospital or medical records play to a pathologist at the 6 start of a case, and specifically, how do they come to 7 you? Dr. Dexter? 8 DR. DAVID DEXTER: In our system, when a 9 body is brought into the morgue. It has to go through 10 admitting. It has to be entered into the hospital 11 system. It's given a unique hospital number. 12 That number may reflect on the fact that 13 that person has been a patient in that hospital before. 14 We receive the chart; the medical chart. 15 It's pulled from medical records; is 16 available to us for review, along with the warrant; along 17 with all the other sources of information prior to 18 beginning the post-mortem examination. 19 MS. TEJA RACHAMALLA: Who -- 20 DR. DAVID DEXTER: That's the standard 21 practice. 22 MS. TEJA RACHAMALLA: Okay. And if a 23 patient had been in the emergency room, who would provide 24 you with those records? 25 DR. DAVID DEXTER: Those records would
321 come through the same route. We also receive the records 2 from the -- the emergency paramedics. That is also 3 incorporated in our -- in our records available to us. 4 DR. CHITRA RAO: It's a standard 5 practice, but sometimes we do have difficulties. 6 Sometimes we have the body and no medical charts; 7 especially cases coming from out of town. 8 And sometimes the death occurring in 9 another hospital and the coroner goes and signs out. 10 He'll have to make sure that the chart comes with the 11 body, and he would have given instruction, but the person 12 now seems surprised, so had -- they may overlook that, 13 and there can be delay. 14 And cases with emergency, I do not start 15 an autopsy until I have that record. 16 MS. TEJA RACHAMALLA: Is it the coroner's 17 responsibility to ensure that you have those records? 18 DR. CHITRA RAO: Yes. 19 MS. TEJA RACHAMALLA: Is that the case? 20 DR. MICHAEL SHKRUM: Yes, I agree. In 21 our London cases, we automatically get our charts from 22 the Health Records Department; both current charts as 23 well as past medical records. 24 There is a reliance on coroners to review 25 clinical notes from outside the hospital, such as family
331 doctor's notes, and if we get cases from other centres, 2 then we rely on the coroner to obviously make the 3 appropriate photocopies for -- for us to review. 4 MS. TEJA RACHAMALLA: Okay. Has a 5 coroner ever refused to provide you with medical records 6 or hospital records, should you need them? 7 DR. MICHAEL SHKRUM: No. 8 DR. DAVID DEXTER: No. 9 DR. CHITRA RAO: No. 10 MS. TEJA RACHAMALLA: Okay. Dr. Shkrum 11 and Dr. Rao, you've recently joined the Death Under Five 12 Committee on a rotational basis with Dr. Pollanen. 13 Do you think that there should be greater 14 regional representation on such committees, as the Death 15 Under Five; PDRC? 16 DR. CHITRA RAO: Yeah. I strongly agree 17 there. And not only in pediatric but other committees, 18 like genecology and obstetrics, and you know, different 19 committees; Anaesthetic Deaths Review Committee. 20 They should have representation. People 21 from other units. They shouldn't just select members 22 only from the Toronto Unit. 23 DR. MICHAEL SHKRUM: I agree, as well. I 24 -- I think it provides a different perspective to the -- 25 that committee, from a different region. It also
341 fulfills an educational component. 2 DR. CHITRA RAO: We learn from that. 3 MS. TEJA RACHAMALLA: We heard testimony 4 from the Regional Supervising Coroners: Dr. Lauwers; Dr. 5 Lucas; and Dr. Edwards; that as a means of ensuring 6 appropriate oversight, there should be a structure for 7 pathologists that mirrors the structure that exists for 8 coroners. 9 So in other words, have a new structure 10 that includes the Chief Deputies and Regionals. Do you - 11 - any of you have any views on this proposal, or this 12 suggestion? 13 DR. CHITRA RAO: I think I agree with 14 them in the sense, like they have Chief Coroner; Deputy 15 Chief Coroner; and Supervising Regional Coroner; and then 16 coroner, like that, we also should have Chief Forensic 17 Pathologist; Deputy Chief Forensic Pathologist; then 18 medical directors; and forensic pathologists. 19 And those Deputy Forensic Pathologists 20 should be a -- represent from other region. Again, that 21 shouldn't be only in Toronto. It has to be from other 22 regions so then we have a good representation from all 23 the regions. And that should also be rotated, like maybe 24 three (3) year term or two (2) year term and so somebody 25 else will also have that chance.
351 So you start getting administrative 2 experience that way. And plus one (1) -- it -- just 3 having only Chief Forensic Pathologist, the workload can 4 be too much, and than maybe they can get backlogged. And 5 so this way, if you have deputy, they can help to share 6 his duties. 7 And when he's not in town, it can -- the 8 one or the other Deputy Chief Coroner -- Pathologists can 9 take over. 10 MS. TEJA RACHAMALLA: Okay. 11 DR. MICHAEL SHKRUM: I'd be interested to 12 see the job description of that position. 13 MS. TEJA RACHAMALLA: Okay. Do you think 14 there should be an expansion in the units in the 15 province, Dr. Dexter? 16 DR. DAVID DEXTER: Yes, I think so. The 17 -- the big challenge we have in Ontario is the geography. 18 There's no question that the integrity and completeness 19 of case examination is of significant advantage to have 20 it fairly close to a forensic unit so that we're not 21 moving the body many, many thousands of kilometres; that 22 we're not moving the police force and the identification 23 officers. 24 We've talked about this yesterday to some 25 degree, so what would be the solutions to this? You have
361 to look at large centres; population centres. It is, I 2 think, of significant advantage to have it associated 3 with an academic centre or a medical school. 4 So if one looks at the map, there is an 5 issue in Northern Ontario. Thunder May -- Thunder Bay 6 might be a location that would be appropriate to consider 7 establishing such a unit, and than the other site might 8 be a place such as Windsor which is of significant 9 population; does have a linked medical school. 10 And that would certainly assist in dealing 11 with cases from those areas. My colleagues may have 12 other suggestions. 13 COMMISSIONER STEPHEN GOUDGE: What's the 14 link to the medical school in Windsor? 15 DR. MICHAEL SHKRUM: It's the University 16 of Wes -- University of Western Ontario. There -- 17 there's a satellite campus there. 18 COMMISSIONER STEPHEN GOUDGE: But the 19 medical faculty is all at London? 20 DR. MICHAEL SHKRUM: That's correct. I - 21 - I -- you know, I have a vested interest in mentioning 22 Windsor because they do a huge caseload. And, you know, 23 there -- there should be a continued medically -- or 24 coroner's autopsy presence there. 25 If that city ever decided to stop doing
371 coroner's autopsies, they would come down the 401 to 2 London. That's a huge number of cases, close to four 3 hundred (400) cases. So I think there's a vested 4 interested in -- in -- and, you know, not only from the 5 academic point of view, but also maintaining facilities 6 like that that do those kind of cases. 7 Bear in mind that most of their cases are 8 routine, but nevertheless take time. 9 COMMISSIONER STEPHEN GOUDGE: All right. 10 Thanks. 11 12 CONTINUED BY MS. TEJA RACHAMALLA: 13 MS. TEJA RACHAMALLA: And who should have 14 oversight over the professional acts of forensic 15 pathologists working under coroner's warrant? 16 Do you have any thought -- do we -- do you 17 think we require a legislative amendment to ensure that 18 oversight is present? 19 DR. CHITRA RAO: Okay. I think so. So 20 far, the forensic pathology hasn't had public 21 recognition. And even now if you hear suddenly they are 22 reporting media -- reporting about a case -- and say, Oh, 23 coroner will be doing the autopsy and, you know, will 24 send the report. 25 So in order the forensic pathology needs
381 recognition. It should be included in the Coroners Act. 2 And what we feel as the forensic pathology -- and the 3 Chief Forensic Pathologist and Chief Coroner should have 4 the same position. 5 The pathology -- the Chief Forensic 6 Pathologist will take care of the death investigation or 7 the pathology aspect of that investigation, and the 8 coroner will be in charge of the other investigation 9 factors relating to death. And -- and I think they 10 should have the same position. And that's the way it 11 should be. 12 DR. MICHAEL SHKRUM: I think at, a 13 minimum, it should be in a contractual arrangement that 14 there is this kind of oversight by the Chief Forensic 15 Pathology -- Pathologist of the units. Bear in mind that 16 in -- in a hospital-based setting, there's other 17 oversights in that particular institution as well. 18 But there should be that kind of 19 accountability to the Chief Forensic Pathologist in the - 20 - in the province. Whether it requires a legislation, 21 but -- I don't know in terms of oversight, but certainly 22 it should be in the contractual arrangements. 23 DR. DAVID DEXTER: I would be in 24 agreement with that. 25 MS. TEJA RACHAMALLA: Okay. We talked a
391 lot yesterday about education and recruitment. What 2 suggestions do you have for providing incentives to 3 recruit Residents and Fellows to forensic pathology? 4 Dr. Rao...? 5 DR. CHITRA RAO: I think we have to start 6 initiating from the medical school. They have to have 7 more exposure. The students should have more exposure on 8 medicolegal aspect of that investigation and forensic 9 pathology. 10 And then once they go into a Residency in 11 pathology, I think the incentive should come from the 12 Coroner's Office -- Chief Coroner's Office -- saying 13 that, Okay, we will send you for a year of Fellowship; we 14 will support it, and then when you return from your 15 Fellowship, there'll be a job waiting. 16 And if they say that, I'm sure there'll be 17 more people coming in. And now with the Royal College 18 recognizing forensic pathology as a submission- 19 speciality, that's a small incentive, and that's the only 20 way we can get people. 21 So, indirectly what we're saying is, We 22 need more funding. And with that funding, we can attract 23 more people because there's no point in asking a resident 24 to do a Fellowship and then there is no job. 25 MS. TEJA RACHAMALLA: Just a --
401 DR. MICHAEL SHKRUM: I should also just 2 add that the -- the positions that are created, there 3 should be flexibility. This is a Ontario Forensic 4 Pathology service. It's not just limited to Toronto. 5 There are acute needs, I think, 6 particularly in Hamilton with -- with the human resources 7 issue there. It's a -- it's a province-wide service. 8 There should be the opportunity for pathologists to 9 practice not only full time forensics, but maybe some 10 type of hybrid; that it may be more appealing for certain 11 pathologists to -- following their pathology residency -- 12 the skill set that they develop there, they may want to 13 continue that practice, but also do forensic pathology as 14 a -- as a part time practice. That's how I started and - 15 - and obviously I've changed, but certainly in other 16 units like Kingston, you know, it's not a full time 17 practice. 18 It makes the position attractive, full 19 time versus -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. MICHAEL SHKRUM: -- hybrid. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DAVID DEXTER: I think the other side 24 of the hybrid aspect of things is when you look at an 25 academic department, it allows the attraction or the
411 appointment of individuals that are multi-facet -- 2 faceted; they can -- whilst there might not be a full 3 time position for the forensic work -- the work does not 4 justify a full time position, although it needs to be 5 done -- it allows the flexibility for pathologists to be 6 hired with significant interest in that area and to 7 supplement the other needs of that department by 8 providing surgical pathology skills; a variety of 9 different things. 10 So it gives flexibility in the academic 11 type of milieu so that you get, I think, a very 12 appropriate title; a hybrid-type position. I think 13 fundamentally we are going to see a mix of those that are 14 full time forensic pathologists, and I -- there probably 15 will be a finite number of those, and there will be 16 probably a larger number, perhaps, of so-called hybrid 17 types. 18 DR. MICHAEL SHKRUM: It also may allow 19 someone to practice both pediatric pathology and forensic 20 pathology. 21 22 CONTINUED BY MS. TEJA RACHAMALLA: 23 MS. TEJA RACHAMALLA: Okay. One (1) 24 final question. Dr. Rao, you mentioned yesterday that 25 you're not comfortable providing testimony in Toronto.
421 Do you wish to elaborate a little bit about the reasons 2 behind this? 3 DR. CHITRA RAO: I think because of my 4 experience. And the was the first case I was coming to 5 Court and they challenged about my credibility and they 6 challenged about my qualification and -- and the whole 7 process. The Crown was really hostile, and so I felt I 8 wasn't given the professional courtesy, and I felt very 9 awkward in that situation. 10 And then I realized it's not worth it. 11 And even though it could be just isolated, like I had 12 only that one (1) experience, the first experience was so 13 bad, I decided I won't come to Toronto. And at the same 14 time, my colleague was also giving evidence for the 15 defence in Toronto, he had the same experience, so it's 16 two (2) incidences from the same unit. 17 And I think what I felt was the -- at 18 least the mentality of that Crown. That particular Crown 19 was, You're coming from a small town. How dare you come 20 to testify against my expert? 21 MS. TEJA RACHAMALLA: Right. You were 22 testifying for the defence, do you think that this is 23 representative of all Crown attorneys in -- in Toronto, 24 in the Toronto area? 25 DR. CHITRA RAO: I -- I can't answer that
431 because I just had an experience with only that 2 particular Crown so I can't generalize. 3 MS. TEJA RACHAMALLA: Okay, thank you 4 very much. 5 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 6 Rachamalla. 7 Ms. Baron...? 8 9 CROSS-EXAMINATION BY MS. ERICA BARON: 10 MS. ERICA BARON: Good morning. My name 11 is Erica Baron. I'm one (1) of the lawyers who acts for 12 Dr. Smith and I have a few, just followup, questions on 13 some things that came up yesterday and today. 14 So, starting with case conferences, Dr. 15 Rao, you -- you told Ms. Rachamalla that you are 16 typically are not compensated for participating in these 17 case conferences which can be very time consuming? 18 DR. CHITRA RAO: That's correct. 19 MS. ERICA BARON: But I take it you view 20 them as useful? 21 DR. CHITRA RAO: Yes, that's an educative 22 process. I learn from that too. 23 MS. ERICA BARON: Because you can get 24 some additional information from the coroner and the 25 police about how the investigation may have proceeded
441 since you first met with them? 2 DR. CHITRA RAO: That's correct. 3 MS. ERICA BARON: And you're also able to 4 share with them any additional information you have -- 5 may have acquired since the autopsy, based on toxicology 6 or histology, for instance? 7 DR. CHITRA RAO: That's correct. 8 MS. ERICA BARON: And I gather that 9 neither the Crown attor -- let me -- sorry, is the Crown 10 attorney sometimes presence -- present at these case 11 conferences? 12 DR. CHITRA RAO: Not all the time, no. 13 It's the Regional Supervising Coroner, and sometimes the 14 Investigating Coroner, the police and the pathologist. 15 Occasionally the toxicologists are there, or maybe we can 16 -- we have teleconference with a biologist of Centre. 17 MS. ERICA BARON: And would it be that as 18 the matter gets closer to trial, there may be case 19 conferences where the Crown attends as well? 20 DR. CHITRA RAO: Yes. 21 MS. ERICA BARON: Okay. And is it fair 22 to say that neither the Coroner's Office nor the Crown 23 attorney compensates you for the time spent in those case 24 conferences? 25 DR. CHITRA RAO: If the case conference
451 is -- if it is organized by the Regional Supervising 2 Coroner, I'm not compensated. But if a case conference, 3 before going to court -- suppose I get a subpoena, and 4 then I contact the Crown and I say, Okay, you know, when 5 do you need me? 6 And then he may say, -- he or she may say, 7 I'd like to come and discuss a case, then I can bill them 8 for consultation, and the rate is hundred dollars ($100) 9 and hour. 10 MS. ERICA BARON: Okay. And has that 11 always been the case, or is that the case now? 12 DR. CHITRA RAO: No, no. That's always 13 been in Hamilton. 14 MS. ERICA BARON: Okay. 15 DR. CHITRA RAO: Yes. 16 MS. ERICA BARON: And has that rate 17 remained the same throughout the time you've been doing 18 this work? 19 DR. CHITRA RAO: Yes. 20 MS. ERICA BARON: Okay. Dr. Shkrum, have 21 you had a similar experience to Dr. Rao in terms of 22 compensation for the time spent in these sorts of 23 conferences? 24 DR. MICHAEL SHKRUM: Yes. It would be my 25 understanding is that if the conference -- case
461 conference exceeds an hour, there is a potential then to 2 -- to bill a law -- I don't think I've done that 3 frequently, so. 4 MS. ERICA BARON: Okay. And, Dr. 5 Dexter...? 6 DR. DAVID DEXTER: Yes, for case 7 conferences there's never been any billing in my 8 experience. But if it moves on to the beginnings of 9 consultation with a Crown attorney coming up for a 10 preliminary, just as Dr. Rao has said, I'm in the same 11 situation for billing capability. 12 MS. ERICA BARON: And would it be fair to 13 say that all of you view these case conferences -- if 14 requested by the Regional Senior Supervising Coroner or 15 the Investigating Coroner -- you view your participation 16 as mandatory, essentially? If you're asked? 17 DR. DAVID DEXTER: I would use the term 18 mandatory and critical. 19 DR. CHITRA RAO: Critical. 20 DR. MICHAEL SHKRUM: I agree. 21 DR. CHITRA RAO: I agree. 22 MS. ERICA BARON: And now I just want to 23 turn briefly to clinical information. You talked a bit 24 yesterday about involving clinicians in autopsies and the 25 circumstances where you might do that.
471 And you talked a little bit today about 2 medical records and how they might be helpful to you. So 3 I just want to explore that a little bit more. 4 I take it that when a child or -- or an 5 individual is admitted to the hospital for a period of 6 time prior to death, the clinical records can be very 7 important in the process that you go through in trying to 8 come up with an opinion as to cause of death, is that 9 fair? 10 DR. CHITRA RAO: That's correct. 11 DR. DAVID DEXTER: Yes. 12 DR. MICHAEL SHKRUM: Yes. 13 MS. ERICA BARON: And not only will it be 14 the observations that are recorded by the clinicians and 15 the records, which are important, but also there can be 16 test results from that period of admission that will be 17 important in the determination of the cause of death? 18 DR. CHITRA RAO: Very important. 19 DR. MICHAEL SHKRUM: Yes. 20 DR. DAVID DEXTER: Yes. 21 MS. ERICA BARON: And that might include 22 things like x-rays or other imaging taken during the per 23 -- patients life? 24 DR. DAVID DEXTER: Yes. 25 DR. MICHAEL SHKRUM: Yes.
481 MS. ERICA BARON: And ocular 2 examinations, for instance, in cases of suspected Shaken 3 Baby Syndrome might be important? 4 DR. DAVID DEXTER: Yes. 5 DR. CHITRA RAO: Yes. 6 DR. MICHAEL SHKRUM: Yes. 7 MS. ERICA BARON: And toxicology from 8 when the person was first admitted to the hospital will 9 also be important? 10 DR. CHITRA RAO: That's correct. 11 DR. MICHAEL SHKRUM: Yes. 12 DR. DAVID DEXTER: Yes. 13 MS. ERICA BARON: And would it be fair to 14 say that the toxicology from admission may be more useful 15 to you in -- in figuring out whether that contributed to 16 the cause of death, then toxicology, say, three (3) or 17 four (4) days after admission when the patient actually 18 dies? 19 DR. MICHAEL SHKRUM: Well -- 20 DR. CHITRA RAO: Okay, go ahead. 21 DR. MICHAEL SHKRUM: It provides a guide. 22 Realizing that the -- the admission toxicology that's 23 done in the hospital may simply be a screen perhaps just 24 of the urine. 25 There may be some blood results. Those
491 samples ultimately have to be seized -- the admission 2 samples -- because they're -- they're the most useful 3 samples. Those are the -- they reflect what the blood 4 levels of a particular drug would have been at the time 5 of an incident as opposed, to say several days later 6 where that particular drug has obviously metabolized. 7 DR. CHITRA RAO: I agree with him. 8 DR. DAVID DEXTER: The only comment I 9 would make, is there is a window of opportunity -- 10 DR. MICHAEL SHKRUM: Mm-hm. 11 DR. DAVID DEXTER: -- and that usually 12 reflects the retention of those samples within the 13 laboratory. I think in Kingston General Hospital, we 14 keep those samples for approximately seven (7) days. 15 So if the death occurs on day nine (9) or 16 ten (10), that original sample -- that critical sample 17 from the first draw in the emergency room -- may have 18 been discarded at that point. 19 DR. CHITRA RAO: But -- 20 DR. DAVID DEXTER: Now, there's one (1) 21 caveat to that. If there is concern expressed about the 22 nature of injuries, or the circumstances of that patient, 23 then those samples can be set aside in expectation. 24 MS. ERICA BARON: And is that an 25 expression that would be expressed by the clinicians or
501 the police? I take it's not something that you, as a 2 pathologist, would typically be involved in. 3 DR. CHITRA RAO: I think sometimes 4 investigating officers -- 5 DR. DAVID DEXTER: Yes. 6 DR. CHITRA RAO: -- they may make sure, 7 you know, that they would like to have a sample. And if 8 the hospital has a child abuse team, then they may know 9 it's important, and they'll agree and they'll inform the 10 laboratory. 11 Even in our area, they only keep sample 12 for one week and after that they discard, so. 13 DR. MICHAEL SHKRUM: Sometimes we're 14 actually alerted. Now again, the coroner doesn't have 15 jurisdiction at this point -- 16 DR. CHITRA RAO: No. 17 DR. MICHAEL SHKRUM: -- because the -- 18 the child is not dead, but the coroner may be alerted by 19 the clinicians, or -- you know -- so in turn, they -- he 20 or she may alert us. 21 And then as a hospital, we can -- or as a 22 department, we can simply phone and say, Just set those 23 samples aside because there's an expectation that this 24 child may die. 25 MS. ERICA BARON: And that's sometimes in
511 the context of -- of potential for organ donation, that 2 the coroner might be contacted before the child dies? 3 DR. MICHAEL SHKRUM: That's correct. 4 DR. CHITRA RAO: That's correct. 5 DR. DAVID DEXTER: Yeah. 6 MS. ERICA BARON: And, Dr. Shkrum, you 7 said yesterday that you sometimes involve the, I think 8 they're called the Child Advocacy Program -- no, that's 9 in Hamilton. 10 So the -- the individuals from the child 11 abuse program in -- in London, because they have more 12 experience. They have more opportunity to see children 13 who have had injuries potentially inflicted upon them. 14 They have more experience with dealing with that than -- 15 than you would as a pa -- as a pathologist doing all 16 sorts of kinds of work -- 17 DR. MICHAEL SHKRUM: Well, certainly they 18 would have -- deal with a larger case volume in terms of, 19 you know, the number of children that we -- they would 20 see. 21 Obviously we deal with a skewed population 22 of deceased children. It doesn't form a large part of 23 our practice. 24 But they would certainly see a lot of 25 injuries. Certainly patterned injuries that --
521 certainly, I mean, I can describe injuries; I can 2 appreciate injuries; but there may be some patterns there 3 that I'm not familiar with, and they can certainly 4 provide some valuable role in that -- in that -- that 5 sort of instance. 6 MS. ERICA BARON: And -- and I take it 7 then that not only are there observations of the injuries 8 that they may record in the clinical records important, 9 but their opinions as to what those injuries might 10 represent, either expressed before the child dies, or -- 11 or indeed at the autopsy with you, that's im -- 12 DR. MICHAEL SHKRUM: Sure 13 MS. ERICA BARON: -- that's relevant and 14 useful information for you to have as a pathologist? 15 DR. MICHAEL SHKRUM: Certainly. I mean, 16 they -- they're obviously -- they're probably involved at 17 the inception of the case, during the clinical course, 18 and then certainly, they may become involved subsequent 19 to -- to the death of that child by viewing the images. 20 And we -- or we, and I say, the coroner; 21 the police, may seek their input as to the clinical 22 outcome potentially, or the clinical presentation of a 23 particular injury that we can't comment on. 24 MS. ERICA BARON: But -- but you as a 25 pathologist are interested in the opinions expressed by
531 the clinicians during the child's care about what the 2 potential causes of the injuries might be. 3 DR. MICHAEL SHKRUM: Yes. 4 DR. CHITRA RAO: One (1) thing I have to 5 add is yes, they have more experience. They have more 6 numbers of clinical cases than us. 7 But we also have to understand, do they -- 8 can they interpret injuries or changes which occurs after 9 death? 10 MS. ERICA BARON: But -- 11 DR. CHITRA RAO: And, so one has to be 12 careful. 13 MS. ERICA BARON: I -- I hear you on that 14 point, Frampton (phonetic), I'm just thinking about the 15 period of time when they're actually involved in the care 16 of the child while they're still alive. 17 It's not uncommon for those clinicians to 18 express opinions of their own about what the potential 19 causes of those injuries might be. 20 DR. CHITRA RAO: That's correct, yeah. 21 MS. ERICA BARON: And -- and those 22 opinions are useful to you as a pathologist. 23 DR. CHITRA RAO: Yes, useful -- at least, 24 it'll come into as a differential diagnosis. 25 MS. ERICA BARON: Because as Dr. Dexter
541 said, you -- you don't view autopsies as an intellectual 2 exercise. This is -- you -- you want as much information 3 as possible to help you get where you're going. 4 DR. CHITRA RAO: Definitely. And then 5 you collate all those findings: what you get from the 6 medical records; what you see at autopsy; what you have 7 findings from toxicology; and what you get from the 8 previous medical history or the birth history. 9 You collate all that, and then you come to 10 your conclusion as to cause of death. 11 MS. ERICA BARON: Right. Dr. Dexter, do 12 you agree with that generally, recognizing that you don't 13 do that in the context of pediatrics? 14 DR. DAVID DEXTER: Yes, I do. Just to 15 sort of move it away from obviously findings that people 16 are seeing on the external examination of the body: a 17 bruise, a bite mark, and so forth. 18 Reflecting on the clinical aspect of 19 things, the physicians that are examining this child -- 20 there's -- there's a parallel in medical diseases -- so 21 that if they are examining somebody, and they're making a 22 judgment call that we believe this person has asthma; we 23 believe this person has bronchopneumonia, and so opinion 24 is expressed. 25 A diagnosis is proffered, and it would be
551 no different in that type of setting when one might be 2 examining a child for potential injury patterns, so it's 3 -- it's part of a -- it's -- it's no different is what 4 I'm trying to get at. 5 It's part of a consortium of things that 6 is the responsibility of those people handling the 7 clinical aspect of patient care. 8 DR. CHITRA RAO: Another aspect I think 9 I'd like to refer to the clinician and I'd like to get 10 their input is the development, because they are in a 11 position to say, okay, such as -- this, can this child of 12 two months could have done this or is it possible, or an 13 eight (8) month, ten (10) month, so -- because they are 14 doing clinical and they're following up the children, 15 Okay, so that is very helpful for me. 16 MS. ERICA BARON: Okay. 17 DR. MICHAEL SHKRUM: May -- may I just 18 add one (1) remark -- 19 MS. ERICA BARON: Of course. 20 DR. MICHAEL SHKRUM: -- just going on Dr. 21 Dexter's remark. I think we've -- you've heard the term 22 "confirmation bias". I mean, when -- when we approach an 23 autopsy in general terms, say a hospital-consent autopsy, 24 yes, the clinician has a series of diagnoses that he or 25 she has made.
561 The autopsy isn't simply to confirm what 2 the clinical aspects are. 3 DR. DAVID DEXTER: Yes. 4 DR. MICHAEL SHKRUM: Yeah, we got all 5 these fancy tests -- x-rays, biochemical tests -- they 6 think it's something else -- or they think it's a 7 particular diagnosis. Well, you can actually get 8 surprised at autopsy. 9 The autopsy still remains the gold 10 standard for quality assurance. Unfortunately it's not 11 used as much now in -- in the hospital-based autopsies. 12 In fact, there are many studies done, even more recent 13 studies, that show that there's actually about a 5 to 10 14 percent discrepancy rate between the clinical diagnosis 15 and what's found at autopsy, such that if that was known 16 during that person's clinical course, it would have 17 altered their outcome. 18 COMMISSIONER STEPHEN GOUDGE: That's 19 interesting. 20 DR. DAVID DEXTER: If I can add one (1) 21 supplement to that, in -- in ICU -- intensive care 22 patients -- the percentage in some papers is as high as 23 20 percent variance of new information coming from the 24 autopsy that would have influenced decisions with regards 25 to patient care and diagnosis.
571 COMMISSIONER STEPHEN GOUDGE: That's 2 interesting. 3 MS. ERICA BARON: Thank you. Those are 4 my questions. 5 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 6 Baron. Ms. Craig...? 7 8 CROSS-EXAMINATION BY MS. ALISON CRAIG: 9 MS. ALISON CRAIG: Thank you, 10 Commissioner. Good morning. Good morning, Doctor. 11 DR. MICHAEL SHKRUM: Good morning. 12 DR. DAVID DEXTER: Good morning. 13 MS. ALISON CRAIG: My name is Alison 14 Craig and I'm one (1) of the lawyers that represents nine 15 (9) individuals who were convicted of crimes in cases in 16 which Charles -- Dr. Charles Smith was involved. 17 And I'm just going to cover a few systemic 18 issues with you and get your input, if I may, starting 19 with the note-taking issue that we've heard a lot about. 20 Dr. Shkrum, when you receive information from the police, 21 you make notes. 22 DR. MICHAEL SHKRUM: Yes, I do. 23 MS. ALISON CRAIG: I think you testified 24 -- all of you do. 25 DR. DAVID DEXTER: Yes.
581 MS. ALISON CRAIG: Are these notes kept 2 in a central file of some sort? Where are they kept? 3 DR. MICHAEL SHKRUM: They are kept in my 4 personal file, and basically I ba -- scribble notes or 5 hieroglyphics on a -- on a back page of -- of my 6 worksheets. It's put into my file. 7 It's certainly available for disclosure, 8 if -- if required, and those files I have stored in a -- 9 in warehouse offsite from the hospital. And there's a 10 requirement that -- generally, there are files, as -- and 11 these are requirements from the Office of the Chief 12 Coroner that we retain our files for twenty (20) years, 13 and certainly in cases of -- pediatric cases, I -- I 14 think it's recommended it's a longer -- a longer period 15 of time. 16 DR. CHITRA RAO: Permanent. 17 DR. MICHAEL SHKRUM: Yeah, per -- 18 actually permanent, that's right. Yeah, just in case 19 that somebody has to go back and review that -- review 20 that file. So all the notes I've taken, everything that 21 is associated with the case, from my perspective, is kept 22 in that file. 23 MS. ALISON CRAIG: And do you write down 24 everything that the police tell you or just what you deem 25 relevant for your purposes?
591 DR. MICHAEL SHKRUM: Well, I try to keep 2 up, and I -- I usually write down a lot of information 3 that actually may be extraneous to -- to my purposes, but 4 I try to write down as much as I can. 5 I don't write down specific names, 6 necessarily, but I try to write down as much as I can. 7 MS. ALISON CRAIG: If they tell you, for 8 example, their theory of what happened, would that be 9 recorded by you? 10 DR. MICHAEL SHKRUM: I would put a 11 question mark, asphyxia, or, you know -- you know, some - 12 - some -- I might put that down or I might just simply 13 consider it and then obviously tailor my approach at 14 autopsy to address that concern. 15 MS. ALISON CRAIG: Okay. And you also 16 testified yesterday, and just something I thought was 17 interesting that sometimes when you're provided with 18 information such as a confession, you struggle with what 19 to do with that -- would -- and you would appreciate 20 guidance? 21 DR. MICHAEL SHKRUM: Yes, I mean, that's 22 -- I mean, that's been a subject of discussion at a 23 number of our meetings as to what -- what the role of a 24 confession is in -- in guidance of our -- in the 25 performance of our autopsy. I know Dr. Pollanen has
601 strong feelings about that. 2 He -- he feels that they should not be 3 considered. On the other hand, are they a form of 4 witness statement? I mean, I -- I don't know. I mean, 5 obviously the witness that they may be accused, but I -- 6 I really would -- really need some -- probably some legal 7 guidance on how that should be interpreted. 8 I -- I did say that -- you know, I might 9 not want to know the details of the confession, but if 10 the police simply said, Well, Doctor, could you consider 11 sexual assault? Could you consider neck compression? 12 Well, that would help. It -- it helps in a very general 13 terms not in -- in a sense that I don't know the details 14 of the confession, but nevertheless, it would address the 15 -- the police concerns as to how the case should be -- 16 how -- how it should proceed. 17 COMMISSIONER STEPHEN GOUDGE: Would you 18 be more comfortable with that then having the confession 19 itself reported to you by the police -- 20 DR. MICHAEL SHKRUM: I think I would be 21 more comfortable with that, yes. 22 DR. DAVID DEXTER: Yes. 23 24 CONTINUED BY MS. ALISON CRAIG: 25 MS. ALISON CRAIG: And I take it you
611 would agree that some path -- pathologists could be 2 subconsciously affected in their judgment or the way they 3 conduct an autopsy or even consciously by what the police 4 tell them? Obviously, that's a factor that's taken into 5 consideration? 6 DR. MICHAEL SHKRUM: Well, I think it's 7 part of human nature, sure. 8 DR. CHITRA RAO: Yeah, that can happen. 9 DR. DAVID DEXTER: Yes. 10 DR. MICHAEL SHKRUM: Yes. 11 MS. ALISON CRAIG: And I take it then 12 that you would agree it's important for a defence lawyer, 13 later down the line, to be aware of what the pathologist 14 had been told, what the police had shared with the 15 pathologist, and consequently, what the pathologist may 16 have been considering when conducting the autopsy? 17 DR. CHITRA RAO: That comes in disclosure 18 because normally I am asked in court what kind of 19 information did you get. And then -- can -- so I said 20 everything, what we will have, it's in our file. And we 21 have the police report, so they fill in -- and then we 22 also get a copy of their incident report. 23 And the after the autopsy and before we 24 release a report, there may be sometimes calls, and the 25 police may say, We foun -- we got this additional
621 information. Then I take down, if I have received a 2 phone call, and that goes into the file. 3 So whatever phone calls or any discussions 4 which has taken place in regard to that case is in my 5 file. So in court if the defence wants to see, they're - 6 - tell anybody they can go through. Only time we don't 7 take notes is when the Regional Supervising Coroner 8 chairs a case conference for a homicide. 9 That's the only time as a pathologist I 10 don't take any notes. And then they send a summary of 11 meeting, who were present at the meeting, and what 12 decision took place. That is there so that goes into my 13 file. 14 MS. ALISON CRAIG: And I thin -- Dr. 15 Shkrum, I think you said there may be information that is 16 provided to you that don't write down, you just take into 17 consideration? 18 DR. MICHAEL SHKRUM: Yes, for example, 19 you know, specific names of people mentioned, I wouldn't 20 necessarily write that down. I might say, you know, 21 father, mother, you know, sister, something like that, 22 but I wouldn't write, you know, addresses, names, things 23 like that. 24 MS. ALISON CRAIG: And would you agree, 25 presumably, different pathologists have different methods
631 of note-taking. Some may write more than others? 2 DR. CHITRA RAO: Sure. 3 DR. DAVID DEXTER: Yes. 4 DR. MICHAEL SHKRUM: Yes. 5 MS. ALISON CRAIG: And if we could just 6 pull please, Mr. Registrar, PFP151657, and it's Volume 7 III, Tab 7, I believe, in -- in your materials. And 8 these are a series of recommendations that were made 9 following the inquiry into the wrongful conviction of Guy 10 Paul Morin. 11 If we could go to page 4, Recommendation 12 13. 13 DR. CHITRA RAO: I have only got page 14 48 -- 15 DR. MICHAEL SHKRUM: No -- 16 DR. CHITRA RAO: -- oh, yes -- 17 COMMISSIONER STEPHEN GOUDGE: Top of the 18 page, Dr. Rao. 19 DR. CHITRA RAO: Yes. 20 MS. ALISON CRAIG: Yes. Thank you. 21 DR. DAVID DEXTER: Yes, I have it. 22 23 CONTINUED BY MS. ALISON CRAIG: 24 MS. ALISON CRAIG: Recommendation 13; the 25 policy respecting documentation of contacts with third
641 parties. And I should say these are recommendations, at 2 least the ones that I'm going to cover, that refer to the 3 Centre of Forensic Science, and the Commissioner may see 4 fit to make similar recommendations as a result of this 5 inquiry: 6 "The Centre of Forensic Science should 7 establish a written policy requiring 8 its analysts and technicians to record 9 the substance of their contacts with 10 police, prosecutors, defence counsel, 11 and non-centre experts. 12 This policy should regulate the form 13 content, preservation, and storage of 14 such records. When such records are 15 referable to the work done on a 16 criminal case, they must be located 17 within the file respecting that 18 criminal case. 19 And the Centre of Forensic Sciences 20 should ensure that all employees are 21 trained to comply with these recording 22 policies." 23 So given that different pathologists may 24 have different styles of note-taking -- some may be 25 unsure as to what is required and -- and what is not to
651 record -- would you all agree that this may be an 2 appropriate and helpful recommendation for pathologists? 3 DR. CHITRA RAO: Yes. In my unit, all 4 three (3) of us maintain whatever information we have 5 had, whatever contact. Everything is written either 6 rough note or something, but it goes into the file, yes. 7 DR. MICHAEL SHKRUM: But -- I just have a 8 but here. It says, "the substance of their contacts with 9 the defence counsel." That raises -- does raise an issue 10 though. 11 What -- what do you mean by the "substance 12 of contact"? I mean, defence counsel may contact me on a 13 case, and I supposed to rec -- I'm not asking the 14 questions here, obviously it rhetorical, but -- but am I 15 supposed to -- to record all those find -- or discussions 16 with defence counsel? 17 I mean, I would -- I would need some 18 guidance on that regard. 19 MS. ALISON CRAIG: Thank you. And I'm 20 next going to consider the topic of courtroom testimony 21 which we talked about yesterday. And I'll direct some of 22 these questions just to all of you to get your feedback. 23 Obviously an important part of the 24 pathologists -- pathologist's job is testifying in court. 25 You would all agree with that?
661 DR. CHITRA RAO: Yes. 2 DR. DAVID DEXTER: Yes. 3 DR. MICHAEL SHKRUM: Yes. 4 MS. ALISON CRAIG: And you would also 5 agree that most pathologists receive little or no formal 6 training in how to go about testifying in court, save 7 this new program that's being instituted by the Coroner's 8 Office? 9 DR. CHITRA RAO: That's correct. 10 DR. MICHAEL SHKRUM: It's literally on- 11 the-job training. 12 DR. CHITRA RAO: Yes. 13 DR. DAVID DEXTER: Yes. 14 MS. ALISON CRAIG: And you're all also 15 often faced with unexpected questions? 16 DR. CHITRA RAO: All the time. 17 DR. MICHAEL SHKRUM: All the time. Maybe 18 today. 19 MS. ALISON CRAIG: And asked about issues 20 that go beyond your expertise? 21 DR. CHITRA RAO: Yes. 22 DR. DAVID DEXTER: Yes, indeed. 23 DR. MICHAEL SHKRUM: Yes. 24 MS. ALISON CRAIG: And the Commissioner 25 touched on this yesterday, but I take it you would agree
671 that some pathologists, perhaps with less experience and 2 no training in courtroom testimony and how to go over to 3 answering questions, may feel pressured to provide 4 opinions that go beyond their expertise? 5 DR. CHITRA RAO: Yes. 6 DR. MICHAEL SHKRUM: Yes. 7 MS. ALISON CRAIG: It is -- it's a 8 pressure packed situation? 9 DR. CHITRA RAO: Definitely. 10 DR. MICHAEL SHKRUM: Yes. 11 DR. DAVID DEXTER: Yes. 12 MS. ALISON CRAIG: Lawyers often don't 13 give up easily? 14 DR. MICHAEL SHKRUM: That's correct. 15 MS. ALISON CRAIG: We all agree? 16 DR. DAVID DEXTER: Mm-hm. 17 MS. ALISON CRAIG: And we've also heard 18 testimony from -- from other witnesses that medical 19 experts can sometimes tend to feel defensive when they're 20 being challenged on the stand and may provide stronger 21 opinions then what the medical evidence actually supports 22 as a result. 23 Wou -- do you agree that's a possibility? 24 Have you ever experienced that? 25 DR. MICHAEL SHKRUM: Well, certainly
681 there's pressure. I -- I think, again, that's -- that's 2 a fine line that we have to walk. I mean, you know, 3 there -- there are various roles that are played by 4 different participants in the court process. 5 I mean, I view -- you know, my cross- 6 examination of the defence -- I mean, you are doing your 7 job as a defence lawyer. I'm trying to answer your 8 questions. I'm trying to assist the court. 9 So there is that potential, I mean, that's 10 human nature, but I think if you get beyond that, if you 11 take the attitude that you're trying to assist the court, 12 if the defence is asking good questions, they've done 13 their homework, they've perhaps have sit -- sought other 14 advice; I'm there try -- try to assist the court. 15 MS. ALISON CRAIG: And you talked 16 yesterday about the new program, the training program 17 that's being implemented by the Coroner's Office. Am -- 18 am I correct that that is -- it's not a mandatory 19 program, it's voluntary? 20 DR. MICHAEL SHKRUM: I think there's an 21 expectation that, you know, people attend that course. 22 DR. CHITRA RAO: Yes. 23 DR. MICHAEL SHKRUM: I don't think it's 24 been considered mandatory, but -- 25 DR. CHITRA RAO: No.
691 DR. MICHAEL SHKRUM: -- you know, the 2 invitation's issued, and I think it's in ones own 3 interest -- good interest to -- to participate in a 4 course like that. 5 MS. ALISON CRAIG: Certainly, but it's 6 not required? You're not mandated to be there? 7 DR. CHITRA RAO: I don't know whether we 8 can put it that way, because I think the Chief Forensic 9 Pathologist will have a list of practising forensic 10 pathologists, and he's going to review who has attended 11 and who has not attended. And then he may have the right 12 to question that person, Why haven't you attended this? 13 We are -- you know, giving these courses for your 14 benefit. 15 And I think, so far most of us who do 16 forensic cases, we have utilized those courses and we go. 17 Even though I may not be able to go every year because 18 they have to give a chance for all the pathologists who 19 are doing forensic cases. 20 So I didn't go the first year, but I went 21 last year. So this year maybe somebody else may go. I 22 may not go. Dr. King or Fernandes would go. So it 23 depends. 24 But then I think -- I'm sure the for -- 25 Chief Forensic Pathologist is going to say, People who
701 are practising forensic work should attend this. He -- 2 so far he has just put it as, you know, he hasn't said 3 it's mandatory, but then I think very soon it will come. 4 DR. DAVID DEXTER: I -- I viewed the -- 5 the invitation as a strong expectation of attendance. 6 MS. ALISON CRAIG: Okay. And would you 7 all appreciate getting feedback about the courtroom 8 testimony that you provide? 9 DR. DAVID DEXTER: Yes. 10 MS. ALISON CRAIG: Would that be helpful 11 to you? 12 DR. DAVID DEXTER: Yes. 13 DR. CHITRA RAO: Yes. 14 DR. MICHAEL SHKRUM: Yes. 15 MS. ALISON CRAIG: If we could pull up 16 then, Mr. Registrar, PFP151691, it's same Volume, Tab 9. 17 Again, this is a recommendation from the Guy Paul Morin 18 proceedings. 19 And if we go to page 2, Recommendation 24; 20 it's on the monitoring of courtroom testimony and it 21 says: 22 "The Centre of Forensic Sciences should 23 more regularly monitor courtroom 24 testimony given by its employees. 25 Monitoring should, where practicable,
711 be done through personal attendance by 2 peers of supervisors. Monitoring 3 should exceed the minimum accreditation 4 requirements. All scientists, 5 regardless of seniority, should be 6 monitored and any concerns should 7 promptly be taken up with the 8 testifying scientist." 9 Now, as Directors of the Units, we've 10 heard about the extensive reviews that you conduct of all 11 the files that go through your office, but that doesn't 12 include a review of courtroom testimony, am I right in 13 that? 14 DR. MICHAEL SHKRUM: Yes. 15 DR. CHITRA RAO: Yes. 16 MR. DAVID DEXTER: I -- that observation, 17 with regards to recommendation 24, doesn't specifically 18 address the issue of pathologists. 19 MS. ALISON CRAIG: Right. 20 DR. DAVID DEXTER: It deals with 21 employees of the Centre of Forensic Science. 22 Nonetheless, I'm very open to having an assessment of my 23 performance in Court. 24 MS. ALISON CRAIG: And if pathologists 25 from your units were attending Court and providing
721 opinions that were beyond their expertise or making 2 inappropriate comments while testifying, that's something 3 you'd like to be aware of, presumably. 4 DR. MICHAEL SHKRUM: Yes. 5 DR. CHITRA RAO: Yes. 6 DR. DAVID DEXTER: Yes. 7 MS. ALISON CRAIG: And to your knowledge, 8 there is currently no peer review or quality assurance at 9 any level of courtroom testimony in the Province, am I 10 right in that, for pathologists? 11 DR. DAVID DEXTER: That's my 12 understanding. 13 DR. MICHAEL SHKRUM: I think -- yes. 14 DR. CHITRA RAO: Yes. 15 MS. ALISON CRAIG: And so given what 16 you've said, I take it you would support a similar 17 recommendation. 18 DR. CHITRA RAO: We would, but then the 19 question is: Who is going to do that? 20 MS. ALISON CRAIG: Right. 21 DR. CHITRA RAO: If they're going to give 22 that additional responsibility to the Medical Directors 23 of each unit, that's going to be a heavy burden. 24 DR. DAVID DEXTER: And if it also is a 25 job that is assigned to lawyers, when lawyers, of course,
731 would be interested in -- in how the evidence is put 2 forward by the expert pathologist, one would wonder 3 whether it would be in favour of the Crown or in favour 4 of the defence; it would be an issue, and perhaps a job 5 for the Judge. 6 COMMISSIONER STEPHEN GOUDGE: I do that 7 when I go to work. 8 DR. MICHAEL SHKRUM: And also, if you 9 have a two (2) man unit, or two (2) person unit, so one 10 (1) person goes to Court, the other person monitors their 11 -- who's -- who's going to be doing the work? 12 DR. CHITRA RAO: It's staff. 13 DR. MICHAEL SHKRUM: Yeah. 14 15 CONTINUED BY MS. ALISON CRAIG: 16 MS. ALISON CRAIG: Thank you. And then 17 the last area I'm going to cover is on the issue of 18 defence opinions or work for the defence, there's two (2) 19 areas, and I'm going to start with the early stages of a 20 death investigation. 21 When a body is brought to one (1) of your 22 centres for the autopsy, the autopsy is done, somebody is 23 perhaps charged criminally and would like to retain their 24 own pathologist to conduct a second autopsy, are you 25 aware of any protocol currently in place that mandates
741 how that happens? 2 DR. CHITRA RAO: I'm not aware of it. 3 DR. DAVID DEXTER: I'm not. 4 DR. MICHAEL SHKRUM: No. 5 MS. ALISON CRAIG: You would all agree, 6 I'm sure, that in a criminal trial when there's a dispute 7 over pathology and there's a defence expert that provides 8 a second opinion based on photographs, charts, records, 9 often an argument would be that the Crown pathologist, or 10 the expert testifying on behalf -- for the Crown, had a 11 better go at it; they had the body, whereas the defence 12 expert didn't, that's a fair argument? 13 DR. CHITRA RAO: That's a fair argument, 14 but then if the original pathologists have documented 15 everything and that can be substantiated with the 16 photographs, I think that's equally a good method of 17 reviewing. 18 DR. MICHAEL SHKRUM: I agree with Dr. 19 Rao. 20 MS. ALISON CRAIG: Okay, if we could pull 21 up, please, PFP149750, and that's Tab 8 of the same 22 volume, and this is the "Home Office Code of Practice and 23 Performance Standards For -- for Forensic Pathologists". 24 Are you familiar with this; I'm not sure you would be, 25 but...?
751 DR. CHITRA RAO: Yes, I've had a look at 2 it before in the past. 3 MS. ALISON CRAIG: And -- 4 DR. MICHAEL SHKRUM: I -- I haven't had a 5 chance to read it, I'm sorry. 6 MS. ALISON CRAIG: Okay, at page 20 -- 7 DR. DAVID DEXTER: Neither have I. 8 MS. ALISON CRAIG: Page 24, I think, it 9 says: 10 "The pathologist will make every 11 attempt to attend any additional --" 12 DR. CHITRA RAO: Excuse me. I think we 13 have 23. 14 MS. ALISON CRAIG: It ends -- oh, dear. 15 Oh, yeah, I'm looking at the top of the page; the bottom 16 would be page 21 if you're looking at those numbers. 17 DR. CHITRA RAO: Oh, okay. 18 DR. MICHAEL SHKRUM: Okay. 19 MS. ALISON CRAIG: Okay, it says: 20 "The pathologist will make every 21 attempt to attend any additional 22 autopsy made by a pathologist retained 23 on behalf of any person charged in 24 relation to the death, the defence 25 pathologist; make available to that
761 defence pathologist with the approval 2 of the coroner a copy of any report; 3 ensure that the existence of the 4 material in the pathologist's preve -- 5 possession and any report arising from 6 any further investigation is, with the 7 approval of the coroner, disclosed to 8 any defence pathologist. Where..." 9 And then looking down at the second 10 paragraph: 11 "Where a second autopsy is to be 12 carried out, the Crown pathologist 13 should share all of the information 14 that he has obtained, whether or not he 15 has concluded that it provides an 16 explanation for the death. The autopsy 17 may have caused changes to the body 18 that will obscure findings made during 19 the course of that examination. It may 20 also prevent the observation of other 21 significant features. There is also a 22 clear responsibility to avoid any 23 interference with the body unless it is 24 necessary to reach a proper 25 understanding of the death."
771 So there is a protocol from the Home 2 Office outlining standard and procedure for a defence 3 second autopsy. And we've heard that the Office of the 4 Chief Coroner is supportive of implementing such a thing 5 here. 6 I'm just wondering if you -- first of all, 7 would you be supportive of this kind of guideline? 8 DR. CHITRA RAO: Yes. And, if I'm doing 9 a second autopsy for the defence, this is exactly what I 10 would like to have. And I would have no objection in the 11 original pathologist to be present when I'm examining, so 12 in that way I can discuss and I can, you know, relate, 13 and I agree with this because the different pathologists 14 should not give opinion on very limited information. 15 They should be exposed to everything what 16 the primary pathologist had access to. 17 MS. ALISON CRAIG: And as -- as the 18 people -- oh, sorry, go ahead Dr. Shkrum. 19 DR. MICHAEL SHKRUM: I support this in 20 theory, but again, Item A; Make every attempt to attend 21 the additional autopsy. 22 So again, there's -- the flip side of that 23 is the logistics. 24 DR. CHITRA RAO: Yeah. 25 DR. MICHAEL SHKRUM: To get that defence
781 pathologist in -- in a large geographic area -- I mean, 2 this is fine. This is in Great Britain. A small 3 geographic area. You know, it's easy to travel around. 4 Difficult in the Province of Ontario. 5 DR. DAVID DEXTER: I think that would be 6 my comment, is that while one might support this from, 7 oh, the best practice type of perspective, the 8 deliverable is a challenge. 9 MS. ALISON CRAIG: Absolutely. And 10 finally, we talked about this yesterday; defence provide 11 -- doing work for the defence; providing second opinions 12 for the defence. 13 You all said theoretically you -- you 14 support that, and would like to get involved in -- in 15 doing that and do when you can. 16 DR. MICHAEL SHKRUM: Well, I'm involved 17 now. 18 DR. DAVID DEXTER: Me, too. 19 MS. ALISON CRAIG: Dr. Rao, when you 20 receive a request, is it of any concern to you who the 21 original pathologist was that conducted the autopsy? 22 DR. CHITRA RAO: Yeah. I want to know 23 who's the original pathologist because the reason being, 24 if happens to be a pathologist from the Unit than I 25 wouldn't agree.
791 And all -- if a pathologist from the 2 Toronto who's case I have reviewed than I may not take 3 that case. So that's why I would like to know who the 4 original pathologist is. 5 MS. ALISON CRAIG: And you testified -- 6 sorry, go ahead. 7 DR. MICHAEL SHKRUM: Sorry. I -- I also 8 want to know who the pathologist is. I also tell the 9 defence lawyer that, Yes, I -- to -- to make it up front, 10 I know this pathologist, 'cause -- because this is a 11 small world in -- in Ontario. 12 DR. DAVID DEXTER: Yeah. 13 DR. MICHAEL SHKRUM: There's very few of 14 us that do this work, and I -- and I can also vouch for 15 that pathologist's reputation. I mean, I -- you know, 16 for example, Dr. Rao. I know her quite well; she does 17 excellent work. 18 So I should ma -- I make that up front to 19 the defence pathologist. You're going to get an 20 excellent product; I'm quite willing to review it. But 21 just to make them aware that it is a small world that we 22 deal with. A very small number of people that do this 23 work. 24 MS. ALISON CRAIG: And, Dr. Rao, I think 25 you testified yesterday that time constraints is a big
801 issue for you. The bad experience you had in Toronto is 2 a big issue for you. 3 And for that reason, you often decline 4 requests from the defence to do -- 5 DR. CHITRA RAO: That's right. 6 MS. ALISON CRAIG: -- second opinions? 7 Now, you don't have the option, obviously, of declining a 8 request from the Coroners Office. When there's an 9 autopsy to be done, it needs to be done. 10 DR. CHITRA RAO: Yes, because I'm not 11 intimidated on that occasion, no. 12 MS. ALISON CRAIG: And I believe -- I 13 just want to see if I got your words white -- right 14 yesterday. You testified -- and I think you said this 15 this morning again: 16 "Why am I subjecting myself to this? 17 I'm quite happy where I am." 18 When you had the bad experience in 19 Toronto? 20 DR. CHITRA RAO: That's correct. 21 MS. ALISON CRAIG: And I think you also 22 testified, and correct me if I'm wrong, that when you 23 have a request from the defence to do a second opinion, 24 you call the Crown to run it by them and see if they have 25 a problem with that?
811 DR. CHITRA RAO: I do notify them, and -- 2 as -- as a courtesy, but I'm not going to ask them, Do 3 you object, no. 4 DR. MICHAEL SHKRUM: I agree with Dr. 5 Rao. I -- I will, simply out of courtesy, notify the 6 Crown. I guess the Crown would have the option if they 7 wanted someone to attend such a meeting with the defence, 8 but I -- I'm not the property of, you know, any 9 particular -- you know, the Crown; I'm -- I'm going to 10 assist the Court. 11 And -- and I feel free -- I should be able 12 to meet with the defence. 13 DR. DAVID DEXTER: I feel very strongly 14 about just that particular point. I'm not there for the 15 Crown, and I'm not there for the defence; I'm there to 16 assist the Court. 17 MS. ALISON CRAIG: I wonder if you could 18 just -- I'm just try to get my head around this. As an 19 impartial witness, why is it necessary to inform the 20 Crown in the first place? 21 I mean, does -- do you see how that makes 22 you -- it appear less than impartial? 23 DR. MICHAEL SHKRUM: I think I just 24 simply do it out of courtesy. I mean, again guidelines 25 would be appreciated if I'm not supposed to notify the
821 Crown, fine. But I just do it out of courtesy that -- 2 that that's occurred -- this contact has occurred. 3 DR. CHITRA RAO: And even though we are 4 not a representative of either the Crown or the defence, 5 but who calls us to testify. It's usually subpoenaed by 6 the Crown. And so we testify and to be at their witness. 7 So again, we let them know as a courtesy, but not 8 representing them. 9 DR. MICHAEL SHKRUM: The -- the other 10 issues that's arisen is that obviously we have an 11 interaction with the defence, you know, what are -- are 12 we obliged to divulge any information to the Crown if -- 13 if they ask. And again, I just put that out there. I 14 think we need guidance in that matter. I -- I mean, I 15 personally -- I don't feel I should be divulging 16 strategies or queries that the defence raises. 17 I mean, that's -- that's not my role. I - 18 - you know, I'm there to try to be an impartial witness. 19 MS. ALISON CRAIG: And certainly you 20 would all agree that it's just as important for a defence 21 counsel to be able to retain a pathologist for opinion? 22 I mean, I think that's clear from what you've all said? 23 DR. CHITRA RAO: Yes. 24 DR. MICHAEL SHKRUM: Yes. 25 DR. DAVID DEXTER: Yes.
831 MS. ALISON CRAIG: And you would agree 2 and you've testified about the very limited pool of 3 pathologists that are available, for either Crown or 4 defence consultations? 5 DR. CHITRA RAO: That's correct. 6 DR. DAVID DEXTER: Yes. 7 DR. MICHAEL SHKRUM: Yes. 8 MS. ALISON CRAIG: If I could just pull 9 up finally then, please, PFP151631. Again, it's Volume 10 III, Tab 4, and I'm looking at page 2, Recommendation 27. 11 "Defence Access to Forensic Work in 12 Confidence". And it says: 13 "The Centre of Forensic Sciences, in 14 consultation with other stakeholders in 15 the administration of criminal justice, 16 should establish a protocol to 17 facilitate the ability of the defence 18 to obtain the forensic work in 19 confidence. 20 The Centre should facilitate the 21 preparation of a registry of duly 22 qualified recognized independent 23 forensic experts. This registry should 24 be accessible to all members of the 25 legal profession."
841 So resources aside, obviously that's going 2 to be the biggest issue, you would support a similar 3 recommendation? 4 DR. CHITRA RAO: Yes. 5 MS. ALISON CRAIG: In regard to medical 6 experts and pathologists, in particular? 7 DR. CHITRA RAO: Yes, -- 8 DR. MICHAEL SHKRUM: Yes. 9 DR. CHITRA RAO: -- and I think the 10 Office of the Chief Coroner do -- they do have a list of 11 experts not only in pathology and all the other line. 12 And if I need some help, I can always go to them or the 13 Regional Supervising Coroner, Who can I contact in this 14 line, and they have list. So it is a good one to have, 15 yes. 16 MS. ALISON CRAIG: And -- 17 DR. DAVID DEXTER: Yes, I would support 18 it. I would support it as well. 19 MS. ALISON CRAIG: And given that time 20 constraints seems to be an obvious issue, would it be 21 helpful if there was a -- a policy implemented where a 22 certain number of hours per work week -- not evenings, 23 not weekends, but a certain number of hours per work week 24 were to be devoted to defence work, if needed? 25 I mean, would that be a helpful guideline?
851 DR. CHITRA RAO: It'd be helpful, but I 2 don't think at this situation as we are -- I don't think 3 that's going to be implemented. Even if they implement, 4 I don't think that we can carry that out. 5 DR. MICHAEL SHKRUM: And -- and I would - 6 - basis -- as a -- as a hospital-based pathologist and 7 employed by a hospital -- again I would have to -- to 8 discuss that with my Chair and Chief. And I mean, as I 9 mentioned yesterday, I do have some administrative time 10 that allows me to do administrative work and -- and do 11 consultative work, but that's something that would have 12 to be negotiated and discussed further at a -- at a 13 hospital level, a department level. 14 MS. ALISON CRAIG: But if it was 15 negotiated and worked out, it's something that you would 16 support? You see the need for it? 17 DR. MICHAEL SHKRUM: Well, it would be 18 great, yes. 19 DR. CHITRA RAO: Yes. 20 MS. ALISON CRAIG: Okay. Thank you, 21 Commissioner. Those are my questions. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 23 Craig. 24 Ms. Kirkpatrick... 25
861 CROSS-EXAMINATION BY MS. JULIE KIRKPATRICK: 2 MS. JULIE KIRKPATRICK: Good morning, 3 Doctors. Good morning, Commissioner 4 DR. CHITRA RAO: Good morning. 5 DR. MICHAEL SHKRUM: Good morning. 6 DR. DAVID DEXTER: Good morning. 7 MS. JULIE KIRKPATRICK:. My name is Julie 8 Kirkpatrick, and I'm one (1) of the lawyers who 9 represents a number of families affected by the systemic 10 issues that have given rise to this Inquiry. In 11 listening to the evidence yesterday, I heard all three 12 (3) of you speak about the importance of mentorship. 13 And for lack of a better word, I -- I 14 might suggest "succession planning". Dr. Rao, you spoke 15 of a young woman who told you you couldn't leave until 16 she came so that she could take your job. And -- and 17 that -- that made me think about the issue of mentorship. 18 And I want to ask you some questions about 19 that. Dr. Rao, yesterday you referenced your experiences 20 and your training with, I believe, Drs. Foster, Dr. 21 Ferris, and Dr. King. And it -- it seemed that the 22 tradition -- you talked about report writing in the way 23 that you were trained and the way you learned to -- to 24 write your reports dating back to 1978. 25 That's been a very important factor in
871 your career, would you agree? 2 DR. CHITRA RAO: That's correct. 3 MS. JULIE KIRKPATRICK: And, Dr. Shkrum, 4 you stated that it was your good fortune in Ottawa to 5 come into contact with Dr. King early in your career and 6 that that cemented your future career path -- 7 DR. MICHAEL SHKRUM: Yes. 8 MS. JULIE KIRKPATRICK: -- correct? This 9 morning I -- I came across a document, and I apologize, 10 it's not in your binders, Commissioner, but it is -- and 11 we don't need to pull it up. I just wanted to reference 12 it on the record, PFP141534. 13 This is a newsletter with an article about 14 forensic pathology in Canada. It was written by Dr. King 15 in 1992. Dr. Rao, I see -- 16 DR. CHITRA RAO: Yes. 17 MS. JULIE KIRKPATRICK: -- you nodding, 18 so -- 19 DR. CHITRA RAO: Yeah. 20 MS. JULIE KIRKPATRICK: Oh, and it's up 21 on -- on your screen. Thank you, Mr. Registrar. I 22 understand that you were in -- you were practising with 23 Dr. King at that time, correct? 24 DR. CHITRA RAO: That's correct. 25 MS. JULIE KIRKPATRICK: And can you
881 confirm that, in 1992, there were some very similar 2 issues as to what we are discussing now with respect to 3 retention, with respect to education, training, 4 certification, in -- in the field of forensic pathology? 5 DR. CHITRA RAO: Yes, that's correct. 6 MS. JULIE KIRKPATRICK: Okay. And do you 7 have any further comments on that point before I -- I 8 move on that you'd like to -- 9 DR. CHITRA RAO: I think Dr. King is very 10 pleased that what he started -- initiated, that the 11 College should recognize us -- that's happening, even 12 though it didn't happen his time of work. But, at least, 13 he's glad that's being taken into consideration, and 14 thanks to Dr. Michael Shkrum now, hopefully it will come 15 into effect soon. 16 MS. JULIE KIRKPATRICK: Back to the issue 17 of -- of mentorship and professional relationships, I 18 take it then that given the nature of the work that you 19 do, those relationships are -- are very important. It's 20 important not to become isolated, is that correct? 21 DR. CHITRA RAO: That's correct. 22 DR. MICHAEL SHKRUM: Yes, and I think, 23 you know, we worked for years in isolation, I mean not 24 splendid isolation, but we -- we didn't have very much -- 25 very much contact with our colleagues in other units.
891 In fact, I would probably see Dr. Rao more 2 at an American meeting than I would see any place in 3 Canada. 4 MS. JULIE KIRKPATRICK: And has that 5 changed? 6 DR. MICHAEL SHKRUM: Yes. 7 DR. CHITRA RAO: Yes. 8 DR. DAVID DEXTER: Yes. 9 MS. JULIE KIRKPATRICK: Dr. Shkrum, 10 yesterday you told us that the work that you do, that 11 it's not only intellectually and technically challenging, 12 but it's mentally and emotionally challenging, as well, 13 isn't it? 14 DR. MICHAEL SHKRUM: Yes, it is. 15 MS. JULIE KIRKPATRICK: And so avoiding 16 that isolation, avoiding that, what -- what you say, 17 operating in isolation, that would be important not only 18 for training and retention of younger pathologists, but 19 also to ensure that they're developing an -- an 20 appropriate skill set, gaining experience, having older 21 mentors to bounce ideas off of -- and -- and problems 22 that they're encountering as they -- they grow in the 23 profession. 24 Isn't that right? 25 DR. MICHAEL SHKRUM: Yes, definitely.
901 DR. CHITRA RAO: Definitely. 2 MS. JULIE KIRKPATRICK: And quite 3 frankly, it's important to make sure that younger 4 pathologists coming up through the ranks are -- are able 5 to handle or are handling the -- the pressures that are - 6 - that are at work upon them. 7 Is that correct? 8 DR. MICHAEL SHKRUM: Yes. 9 DR. DAVID DEXTER: Yes. 10 DR. CHITRA RAO: Yes. 11 MS. JULIE KIRKPATRICK: And, Dr. Rao, not 12 to -- to focus on your bad experience again, but I just 13 wanted to -- to ask you something about that. When you 14 say "because of that experience", you questioned, Why am 15 I subjecting myself to this; I don't need this -- 16 basically, I -- I understood your evidence. 17 In terms of defence ac -- access to 18 forensic pathologists, that's a problem. If someone with 19 your experience is -- is not prepared to -- to do defence 20 work in that adversarial context, that is potentially a 21 problem, would you agree? 22 DR. CHITRA RAO: Yes. 23 DR. MICHAEL SHKRUM: Yeah, I don't think 24 we should be like Rodney Dangerfield when we enter Court. 25 You know, there should be respect for what we do.
911 DR. DAVID DEXTER: I would strongly 2 support that. 3 MS. JULIE KIRKPATRICK: Okay. But I take 4 it, Dr. Rao, that in terms of -- of that issue, you do 5 see that there has been a role for yourself outside the 6 courtroom, as well. You've been available to meet with 7 defence lawyers, correct? 8 DR. CHITRA RAO: Yes. 9 MS. JULIE KIRKPATRICK: I -- I believe 10 yesterday your evidence was that you may take the case, 11 you may discuss the case, you may advise the defence, and 12 then if they want you to testify, you'll say, Well, maybe 13 you should go and talk to someone else, so you've -- 14 you've pointed defence lawyers in another direction, 15 correct? 16 DR. CHITRA RAO: Yes, but before even I 17 discuss a case, I tell them, Do you want me to come and 18 testify, if so, then you have to get somebody else, but 19 if you just want to help with the report and to explain 20 the medical aspect of the cause of death or the case, I'm 21 willing to do so. 22 MS. JULIE KIRKPATRICK: Okay. And a good 23 example of this, I would suggest, and I'm not going to -- 24 to focus on the specifics of the case, but in the Jenna 25 case, we have heard that you met with defence counsel in
921 that case and provided some names. 2 And keeping that in mind, Mr. Registrar, 3 if you could pull up PFP302927, and that's at Volume III, 4 Tab 5 in your binder. 5 6 (BRIEF PAUSE) 7 8 MS. JULIE KIRKPATRICK: This is a -- a 9 letter -- do you have it in front of you, Dr. Rao? 10 DR. CHITRA RAO: Yes -- 6, Tab 6. 11 MS. JULIE KIRKPATRICK: Okay. It's a 12 letter dated April 8th, 1999 to you from defence counsel 13 for Ms. Brenda Waudby, and it encloses a preliminary 14 inquiry transcript. And it advises that there's an 15 upcoming meeting between the defence counsel, the Crown 16 attorney and the investigating officer with Dr. Ein, and 17 indicates that Dr. Smith would also be in attendance on 18 that day. 19 And at the bottom of the second paragraph: 20 "I'm wondering if you feel it's 21 necessary for you to attend it as 22 well?" 23 I just wanted to confirm, you were not at 24 -- present at that meeting, correct? 25 DR. CHITRA RAO: No, because I was out of
931 the country. 2 MS. JULIE KIRKPATRICK: Okay. Otherwise 3 would you have -- have attended? 4 DR. CHITRA RAO: Yes, because I got 5 involved in the case, yes. 6 MS. JULIE KIRKPATRICK: Okay. And did 7 you write a written report? 8 DR. CHITRA RAO: No. At that time -- he 9 didn't need a report at that time. And the question why 10 I referred two of the clinicians was this was an area 11 about timing. Not only timing, about the abdominal 12 injuries when the symptom starts. 13 And as a forensic pathologist our case 14 exposure is limited whereas the clinicians have more 15 cases. And especially a surgeon, they deal with acute 16 abdomen. So I recommended Dr. Walton to do that so that 17 he could give them exactly statistics -- how I have had 18 so many cases, and usually the symptom arises within two 19 (2) hours of the incident or six (6) hours after the 20 incident. 21 And then I also recommended Dr. Finkel who 22 is the senior pediatrician who was in the Child Abuse 23 team. And so then he was going to -- after he had 24 discussion with me he was going to contact those two (2) 25 and then later on he told me that he'll let me know
941 whether he needed a written report. 2 And plus he also said, There is a 3 possibility you may have to come and testify at the 4 preliminary. 5 MS. JULIE KIRKPATRICK: Okay. Thank you. 6 And the next document I want to -- to bring up is 7 PFP302928 which is Volume III, Tab 6. 8 9 (BRIEF PAUSE) 10 11 MS. JULIE KIRKPATRICK: And this is a 12 letter dated June the 22nd, 1999 from Mr. Laird Meneley. 13 If we go to the next page, page 2, we see that Mr. 14 Meneley was counsel for Ms. Waudby in concurrent child 15 protection proceedings, and he was asking you for a 16 report. 17 And I just want to highlight paragraph 4 18 of this letter. Mr. Meneley writes: 19 "I'm acting on a rather limited 20 retainer in this matter, and the 21 maximum amount that I can afford to 22 spend pursuant to that retainer for 23 medical reports is one hundred dollars 24 ($100), inclusive of goods and services 25 tax."
951 That's in 1999. So I have two (2) 2 questions. Is that adequate for in 1999? 3 DR. CHITRA RAO: No. 4 MS. JULIE KIRKPATRICK: And are you aware 5 that there's been any change with respect to the -- the 6 amount that Legal Aid will pay for medical reports? 7 DR. CHITRA RAO: No, it remains the same. 8 MS. JULIE KIRKPATRICK: There's been no 9 change? 10 DR. CHITRA RAO: No. 11 MS. JULIE KIRKPATRICK: Okay. Now 12 there's another issue that's raised by this letter, I 13 think, and that's the effective use of resources where 14 there are concurrent proceedings. 15 So if you have a criminal proceeding at 16 the same time as you have a trial protection proceeding 17 and both the defence counsel in the criminal proceeding 18 and counsel in the child protection proceeding require 19 the same information, how can that be built into the 20 system? 21 Do you have any -- efficiently and cost 22 effectively, and -- and time effectively, do you have any 23 comments on that? 24 DR. CHITRA RAO: I have problem in the 25 sense -- couple of cases have involved the CAS. They
961 have court appearance because in case they have to take 2 the custody of the remaining siblings. 3 And they request me to go and give my 4 evidence in pathology. I'm a bit concerned about that 5 because if I had to go and give evidence there before the 6 criminal proceedings have taken place, that may 7 compromise the case. 8 So in those cases I have requested that 9 Crown attorney -- I'll call the Crown attorney and I'd 10 say, I don't feel confident to go, so you know, what do 11 you think? So sometimes they say, That's fine, I'll 12 handle it. You know, you don't have to go. 13 But one (1) case recently I had to go so I 14 waited there for about eight (8) hours and then later on 15 they said, No, we don't need you. But I -- I don't like 16 that issue, because especially if the criminal 17 proceedings haven't taken place. 18 MS. JULIE KIRKPATRICK: All right. Okay, 19 thank you. 20 COMMISSIONER STEPHEN GOUDGE: It's 11:20, 21 Ms. Kirkpatrick. 22 MS. JULIE KIRKPATRICK: How much time do 23 I have? 24 COMMISSIONER STEPHEN GOUDGE: Well, I 25 just wondered if we could take the morning break?
971 MS. JULIE KIRKPATRICK: I'll be -- 2 Commissioner, I'll be about five (5) more minutes, if we 3 can keep going. 4 COMMISSIONER STEPHEN GOUDGE: Okay. Let 5 us go to your finish. That would be great. 6 MS. JULIE KIRKPATRICK: All right. To 7 turn to the issue or note-taking, all of you indicated 8 that you did not want police taking notes during the 9 autopsy. 10 DR. CHITRA RAO: That's correct. 11 MS. JULIE KIRKPATRICK: And that you 12 prefer to summarize your findings at the end. And when 13 you were done, you said there were two (2) things that -- 14 that needed to be done: 15 Number 1. Contact the coroner who had 16 issued the warrant. 17 DR. CHITRA RAO: Yes. 18 DR. MICHAEL SHKRUM: Yes. 19 MS. JULIE KIRKPATRICK: And Number 2. 20 Speak with the police who were looking for your findings. 21 DR. MICHAEL SHKRUM: And -- and actually 22 add Number 3. Contact the Regional Supervising Coroner 23 as well. 24 DR. CHITRA RAO: Yes. 25 DR. MICHAEL SHKRUM: I forgot to mention
981 that. 2 MS. JULIE KIRKPATRICK: So -- 3 DR. CHITRA RAO: Three, and fourth one is 4 inform the Chief Forensic Pathologist that we have done 5 this, that -- 6 DR. MICHAEL SHKRUM: Oh, okay. Okay. 7 DR. CHITRA RAO: -- so now four (4). 8 MS. JULIE KIRKPATRICK: So there are four 9 (4) things you have to do immediately. 10 DR. DAVID DEXTER: Yeah, I just reminded 11 that these are in homicide and -- 12 DR. CHITRA RAO: Yeah, yeah. 13 MS. JULIE KIRKPATRICK: Yes, that's 14 right. 15 DR. DAVID DEXTER: -- suspicious cases. 16 MS. JULIE KIRKPATRICK: Now, which comes 17 -- which of those four (4) would come first? 18 DR. CHITRA RAO: For me, the police 19 because they're attending, so at the end of the autopsy - 20 - sometime you may not be able to contact the coroner, so 21 I will tell the police at the end of the autopsy, these 22 are the findings, and this is my preliminary cause of 23 death. 24 That may change, depending upon what I 25 find in toxicology, what I find in micro. And then I let
991 them write what I have written, my provisional, cause of 2 that. 3 MS. JULIE KIRKPATRICK: Okay. And Dr. 4 Shkrum...? 5 DR. MICHAEL SHKRUM: Yes, I -- I speak 6 with the police first. Obviously, there -- there -- they 7 may come from distance, you want to get them on the road. 8 And then followed by phone calls to the investigating 9 coroner and the Regional Supervising Coroner. 10 The last step would be the notification of 11 the Unit in Toronto. There is a problem with that 12 though. The notification forms that are sent usually 13 probably go out the next day? 14 DR. DAVID DEXTER: Correct. 15 DR. MICHAEL SHKRUM: Yeah. I mean, -- 16 DR. CHITRA RAO: Yeah. 17 DR. MICHAEL SHKRUM: -- they may go out 18 the next and then they're reviewed, I think, at their -- 19 their morning rounds, so there is a delay there. It's -- 20 we don't get immediate feedback on a case that's, say, 21 done the preceding day. 22 MS. JULIE KIRKPATRICK: Okay. And Dr. 23 Dexter...? 24 DR. CHITRA RAO: Yeah, but if we have 25 done during the day before four o'clock then we can fax
1001 it, -- 2 DR. MICHAEL SHKRUM: Yes. 3 DR. CHITRA RAO: -- and then they can 4 include that for the following day. And even though the 5 theory is they'll review and we are supposed to hold the 6 body before releasing, but we have -- like you said, we 7 have had no feedback. 8 So, I presume, if you have no feedback, 9 that means there's no problem and we can -- 10 DR. MICHAEL SHKRUM: Yeah. I guess the 11 point is that whether that review could take place even 12 earlier, not -- not at morning rounds, but actually maybe 13 the -- actually the actual day of the autopsy. I'm not 14 sure, again, logistically that's possible in the Toronto 15 Unit. 16 DR. DAVID DEXTER: I think the system in 17 Kingston is virtually identical to Dr. Shkrum's. The -- 18 the issue of getting information to the Centre of 19 Forensic Science, the -- the -- Dr. Pollanen's unit -- 20 we've talked about faxing, we've talked about a variety 21 of ways of getting that information there. 22 We've also talked about the issue of doing 23 a phone call. We -- at the present time, the only 24 experience that we've had is through the faxing process, 25 but the phone call issue is there, and -- and Dr.
1011 Pollanen has certainly been supportive of that type of 2 more instant, if you wish, communication. 3 MS. JULIE KIRKPATRICK: Okay. Thank you. 4 Those are my questions. 5 DR. CHITRA RAO: Thank you. 6 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 7 Kirkpatrick. We will rise now until twenty (20) to 8 12:00. 9 10 --- Upon recessing at 11:25 a.m. 11 --- Upon resuming at 11:39 a.m. 12 13 THE REGISTRAR: All rise. Please be 14 seated. 15 COMMISSIONER STEPHEN GOUDGE: Ms. 16 Greene...? 17 18 CROSS-EXAMINATION BY MS. MARA GREENE: 19 MS. MARA GREENE: Good morning. 20 DR. DAVID DEXTER: Good morning. 21 MS. MARA GREENE: My name is Mara Greene 22 and I act for the Criminal Lawyers Association and I just 23 want to cover a few areas with you on system -- systemic 24 issues. 25 I'd like to first start off with an issue
1021 that was raised by Ms. Craig earlier this morning; and it 2 relates to the defence pathologist not being in the same 3 position as the Crown pathologist because they've not 4 done that first autopsy. 5 In your material at Volume III, Tab 18, is 6 a research paper written by Christopher Sharon. 7 Do you have that document in front of you? 8 DR. CHITRA RAO: Yes. 9 DR. MICHAEL SHKRUM: Yes. 10 MS. MARA GREENE: Okay, and it's 11 PPF170358. And if I can take you to page 34 of that 12 document. 13 DR. CHITRA RAO: Or the bottom page 14 number? 15 MS. MARA GREENE: That's the bottom page 16 number. 17 DR. CHITRA RAO: Mine -- mine says 4. 18 DR. MICHAEL SHKRUM: Okay, let's see 19 here. 20 MS. MARA GREENE: At page 34, the -- the 21 title is "Part 4, Disadvantages of the Defence 22 Pathologist" -- 23 DR. CHITRA RAO: Oh, okay. 24 DR. MICHAEL SHKRUM: Okay, I see. 25 MS. MARA GREENE: -- is the title of that
1031 page. 2 DR. DAVID DEXTER: I have it. 3 DR. CHITRA RAO: I have it. 4 MS. MARA GREENE: Okay. And what, 5 Christopher Sharon writes is that: 6 "That the literature suggests that a 7 pathologist assisting the defence is 8 almost always inevitably at a 9 disadvantage relative to the 10 pathologist who is assisting the 11 Crown." 12 And he goes into explaining that: 13 "That they're not there to do the 14 original autopsy." 15 Dr. Shkrum, since you do the most defence 16 work, do you agree with that position? 17 DR. MICHAEL SHKRUM: Well, again, just 18 bearing in mind that when Dr. Jaffey wrote his book, he 19 may not have had -- I don't think he would have had these 20 guidelines in place. 21 As I -- as I mentioned before, there -- 22 the guidelines set out certain images that need to be 23 taken to memorialize the autopsy, both positive and 24 negative. So, -- in fact we do have some advantage 25 there, maybe compared to maybe defence pathologists that
1041 were doing work in the past. 2 It's -- it's not perfect, but, 3 nevertheless, there -- there is some -- you know, some 4 ability to look at images from the autopsy. 5 MS. MARA GREENE: So -- and I want to 6 talk about now. I don't want to get into a debate as to 7 whether or not this statement is correct or not. 8 I want to know your opinion. As someone 9 who does both defence and Crown work in pathology -- 10 DR. MICHAEL SHKRUM: Mm-hm. 11 MS. MARA GREENE: -- do you feel as when 12 you do defence work that you are at a disadvantage? 13 DR. MICHAEL SHKRUM: Well, it -- it would 14 be ideal to be present at the autopsy. 15 MS. MARA GREENE: Okay. But -- so, by 16 not being at the autopsy, you feel -- are you at a 17 disadvantage? Are you in a lessor position to give an 18 opinion than the Crown pathologist? 19 DR. MICHAEL SHKRUM: Somewhat at a 20 disadvantage, yes. 21 MS. MARA GREENE: Dr. Rao, do you feel 22 the same way, or differently? 23 DR. CHITRA RAO: Yes, but then if I have 24 images and if I have a report which is a detailed, good 25 report -- describe all the injuries -- and then if I can
1051 compare and if it is reviewable, then it's fine. 2 Otherwise it's a disadvantage. 3 MS. MARA GREENE: Now, Dr. Dexter, I know 4 you don't normally do defence work, but considering this 5 issue as an expert pathologist, do you think the defence 6 pathologist is in a disadvantaged position? 7 DR. DAVID DEXTER: There can be elements 8 of that, yes. 9 MS. MARA GREENE: Okay. So the next 10 question that I want to ask, and I'll do all of you in 11 turn, is how to even the playing field? What can we do 12 for the system to put that defence pathologist in as good 13 as a position as the Crown pathologist? 14 Dr. Shkrum, do you have any suggestions? 15 DR. MICHAEL SHKRUM: Well again, ideally, 16 if the -- if the defence pathologist -- you know, once 17 there's an accused and a defence lawyer's been retained, 18 and a defence pathologist is contacted, that that defence 19 pathologist can then go to the autopsy. 20 But, obviously, realizing that that may 21 take some time, that may take some days. I mean, the 22 autopsy may have already been done. And also, as I 23 mentioned before, the logistical issues of getting a -- a 24 defence pathologist, particularly one that's in current 25 or active practice as opposed to, say, someone that's
1061 retired, to -- to pull them out of their practice to -- 2 to attend that. 3 I mean, there -- there's some real time -- 4 time constraint issues there. 5 MS. MARA GREENE: So barring -- lets 6 assume for a second that it's not realistic in most cases 7 to get a defence pathologist at the original autopsy. 8 Can anything be done to level -- even the 9 playing field? 10 DR. MICHAEL SHKRUM: Well, as Dr. Rao has 11 mentioned, I mean, we do have images, we do have a 12 report, we have ancillary reports such as toxicology, we 13 have images that have been taken by the police and -- and 14 perhaps the pathologist. There are microscopic slides. 15 I mean, obviously, all that material 16 should be available to the defence pathologist to review. 17 MS. MARA GREENE: Okay. So lets assume 18 that the original pathologist has done a good job, 19 retained the appropriate photographs, tissue samples, and 20 slides. When you say that you're still at a disadvantage 21 as a defence pathologist, can you quantify the 22 disadvantage? 23 DR. MICHAEL SHKRUM: I should just add -- 24 I mean, my colleagues may want to add to this, I -- I -- 25 okay. The ideal would be the actual -- to see the
1071 autopsy. You know, there may be nuances that are not 2 obviously memorialized by images or recorded in a report. 3 But, again, other than actually going to 4 the autopsy, with all the time constraints, I'm not sure 5 what the solution would be. Now, you know, do you have 6 some type of video-conferencing ability? Well, I get 7 back to the issue of videotaping and -- and -- you know, 8 that sort of live -- live -- live action. 9 I mean, you get -- you get into issue 10 there about, you know, something that's going to last for 11 hours and hours. Now, arguably, as a defence 12 pathologist, you might be there for hours and hours as 13 well. 14 So, I'm -- I'm not sure. I mean, it 15 depends on the capability of the system that -- to -- to 16 allow that kind of event to occur. And, again, whether 17 the resources would be available. 18 MS. MARA GREENE: Dr. Rao, do you have 19 any comments on this topic? 20 DR. CHITRA RAO: No, I agree with what 21 Dr. Shkrum said. And then again, we have to know when 22 does the defence get involved. And that depends upon the 23 speed of the investigation by the police. 24 They have to get the perpetrator -- if you 25 have -- in time before the autopsy or during the autopsy
1081 if you know and then -- then the defence is contacted, 2 and then maybe a possibility -- because we keep all 3 suspicious and homicide case bodies for a day. 4 After twenty-four (24) hours we release, 5 so within that period, if, you know, they have the a 6 defence lawyers contacted and then he has opportunity to 7 get a pathologist to come interview before we release the 8 body. 9 And because we are so acutely short of 10 forensic pathologists in this Province, I don't know 11 whether that's going to be feasible. Once every unit is 12 complimented with adequate forensic pathologist then 13 maybe that'll work. 14 MR. MARA GREENE: Dr. Dexter, do you have 15 any further comments on this point? 16 DR. DAVID DEXTER: Now, the -- I mean, 17 many of the things that my colleagues have said are 18 absolutely on the -- on the ball. There are other 19 circumstances where -- for example, a body is found, the 20 autopsy proceeds in the fashion that we described, with 21 all the documentation. There is no accused, at that 22 point in time. 23 Days may pass, months may pass, years may 24 pass. Even in the sense of a relatively compressed 25 timeframe, there may be an accused, the issue of getting
1091 a lawyer involved, all of those sorts of things pose 2 problems. 3 So whilst one might say it's absolutely 4 not ideal not to have two (2) pathologists working 5 together on the same case, that would be the Utopian 6 concept. The deliverables are going to be 7 extraordinarily challenging. 8 MR. MARA GREENE: So, I gather from all 9 of you that you agree that it will often be difficult to 10 have a defence pathologist at the autopsy, correct? 11 DR. MICHAEL SHKRUM: Yes. 12 DR. CHITRA RAO: Yes. 13 DR. DAVID DEXTER: Yes. 14 MR. MARA GREENE: Okay. And in addition 15 to that, you all agree -- and correct me if I'm wrong -- 16 that while a defence pathologist can come close to the 17 same position as a Crown pathologist without being at the 18 autopsy, they will never be at the same position as the 19 Crown pathologist if they're not at the autopsy. 20 Is that fair? 21 DR. MICHAEL SHKRUM: Yes. 22 DR. CHITRA RAO: Yes. 23 DR. DAVID DEXTER: Yes. 24 MR. MARA GREENE: Okay. So given that 25 position, I recognize your lack of support, I guess, for
1101 the videotaping concept. Would you agree that 2 videotaping the autopsy so that a defence pathologist can 3 later see it is the next best thing to actually being at 4 the autopsy? 5 DR. CHITRA RAO: If we take adequate 6 pictures of negative and positive findings, that equals 7 to videotaping. And videotaping the entire procedure is 8 -- it's time consuming, and somebody has to be there 9 constantly. And then that will limit us from open 10 discussion. 11 We discuss many possibilities during the 12 autopsies. And sometimes, like Dr. Dexter put in, we 13 have residents, we have medical students; they may ask 14 questions, or even the investigating officer may ask 15 questions or that -- that has nothing to do with the case 16 in question, but he may see something abnormal. 17 MR. MARA GREENE: Well, set -- let's set 18 aside sound. Let's say there's no audio, it's just 19 video, so that it won't hamper your discussions, it won't 20 hamper the teaching component; it's just video. 21 DR. MICHAEL SHKRUM: What a cure for 22 insomnia, watching hours and hours of -- 23 DR. CHITRA RAO: Yeah. 24 DR. MICHAEL SHKRUM: -- procedure like 25 that.
1111 COMMISSIONER STEPHEN GOUDGE: Which would 2 you prefer, Dr. Shkrum, as a defence pathologist; to be 3 able to see a video of the autopsy or to be able to see 4 good pictures? 5 DR. MICHAEL SHKRUM: Good pictures. 6 DR. CHITRA RAO: Same. 7 DR. DAVID DEXTER: Same. 8 9 CONTINUED BY MS. MARA GREENE: 10 MR. MARA GREENE: So if good pictures put 11 you in the same position as the video, what is the 12 benefit of being physically at the autopsy as compared to 13 not being at the autopsy? 14 DR. CHITRA RAO: Maybe you can pick up 15 something which the original pathologist would have 16 missed or not thought about it. Sometimes you can also 17 communicate your questions or suppose there's some 18 particular lesion in the organ and the forensic 19 pathologist -- the original pathologist -- may think in a 20 different line. And the defence -- a pathologist can ask 21 questions at that time, you know, What do you think about 22 this. 23 There has to be an open communication 24 between -- if the defence pathologist's going to be there 25 at the time of autopsy, I think there should be an open
1121 communication between the original pathologist and the 2 defence pathologist. 3 DR. DAVID DEXTER: I think the comment I 4 would make is that there has to be a little bit of 5 recognition of -- of who's in charge. The forensic 6 pathologist who is charged with a warrant to do the case 7 must be the lead hand, but the advantages of having 8 another equally component colleague representing the 9 defence does allow for interplay of questions of debate 10 about possibilities and so forth. There is value in 11 that. 12 The nuances that Dr. Shkrum referred to 13 may be of value; I mean it's an opportunity for those to 14 come forward. 15 DR. MICHAEL SHKRUM: There would also be 16 the value of, you know, if there was procedural issues, 17 you know, in terms of evidentiary collection, or evidence 18 collection, the, you know, the defence pathologist may -- 19 may be able to address those during the course of the 20 autopsy. 21 DR. DAVID DEXTER: I think the last 22 positive things that I could imagine coming out of this 23 is there -- there would be a set of standard facts of 24 agreement that would be established between those two (2) 25 professionals working together on the case.
1131 MS. MARA GREENE: Thank you. I want to 2 move into a new area now, and it relates to when there is 3 a defence pathologist on a case, and I'll start with you, 4 Dr. Rao. 5 Have you, as a -- testified as a Crown 6 pathologist in cases where there awful -- also been a 7 defence pathologist testifying? 8 DR. CHITRA RAO: Yes. 9 MS. MARA GREENE: Yes. Okay. And, in 10 any of those cases, has the defence pathologist agreed 11 with you on sort of a fundamental point relating to guilt 12 or not guilt and that person also been acquitted -- found 13 not guilty? 14 DR. CHITRA RAO: Yes. 15 MS. MARA GREENE: Okay. Now, in that 16 kind of situation where you've had a defence pathologist 17 testify with a different opinion relevant to guilt or not 18 guilt, what -- what I want to ask you, what is the -- 19 what debriefing occurs after the Court case? 20 So are you notified or told about this 21 different opinion and that it was accepted and yours 22 wasn't? 23 DR. CHITRA RAO: Yes, sometimes the Crown 24 does contact you and say that, you know -- this is after 25 the event --
1141 MS. MARA GREENE: Right. 2 DR. CHITRA RAO: -- not before -- saying 3 this is what happened and the person was acquitted and -- 4 but sometimes it's very difficult to get the entire 5 information because the Crown may not be able to go in 6 detail what happened. 7 And sometimes in Court when the Crown 8 pathologist testifying, the defence brings their expert 9 and base it in Court listening. But that never happens 10 with the Crown. When the defence bring their expert, the 11 Crown pathologists are not always there. 12 I've only been once or twice when the 13 defence pathologist were testifying. So, I think the 14 Crown pathologist also should be given that opportunity, 15 and then we'd know -- because it can be genuine. Maybe 16 the Crown pathologists have overlooked something which 17 has been pointed out with the defence pathologist, and 18 then I'll accept that. If I made a mistake, I'll accept 19 that, yes, that's a possibility I never considered, so 20 that's fine. 21 And that's a gain in education, so we 22 learn from that experience. 23 MS. MARA GREENE: So I gather that you 24 would agree that in cases where defence pathologist has 25 testified, that evidence accepted, it would be to your
1151 benefit to have an opportunity to at least review the 2 report and maybe even discuss with the other pathologists 3 so that you can learn about that area. 4 DR. CHITRA RAO: Definitely. 5 MS. MARA GREENE: Okay. Dr. Shkrum, 6 would you agree with this? 7 DR. MICHAEL SHKRUM: I agree. 8 MS. MARA GREENE: And Dr. Dex -- 9 DR. DAVID DEXTER: Yes. 10 MS. MARA GREENE: And -- and how much of 11 that happens now? 12 DR. CHITRA RAO: Very rarely. 13 DR. DAVID DEXTER: Yeah, I have not had 14 that experience. 15 MS. MARA GREENE: I want to move into 16 something that was raised yesterday, and it was during 17 the course of the questions put to you about the review 18 of your work by Dr. Pollanen. 19 And I had understood, I think all three 20 (3) of you, but in -- in particular, I recall Dr. Rao and 21 Dr. Shkrum both testifying that there had been occasions 22 where Dr. Pollanen had reviewed your work, you report, 23 and whatever other material you provided, and he had 24 contacted you afterwards, either by written letter, 25 email, or telephone advising that he either had a
1161 different opinion or he wanted you to consider some other 2 factors. 3 Is that correct, Dr. Rao? 4 DR. CHITRA RAO: Yes. 5 MS. MARA GREENE: Okay, and Dr. Shkrum, 6 is that also -- 7 DR. MICHAEL SHKRUM: Yes. 8 MS. MARA GREENE: And, Dr. Dexter, has 9 that happened with you, as well? 10 DR. DAVID DEXTER: Yes. 11 MS. MARA GREENE: And in that scenario -- 12 I'll start with Dr. Rao -- how do you record that 13 discussion? 14 DR. CHITRA RAO: Usually he sends me an 15 email and so that that goes into my file. And if it is a 16 telephone conversation, I note it, and then if something 17 he wants me to consider, and then I will co -- consider 18 that option and I'd look at it, and if I don't agreo -- 19 agree, I'll let him know. 20 And I may put in writing or I may 21 telephone again back. If he has given me a telephone 22 opinion, then I'll telephone him back and say, Michael, I 23 have done this. I think I want to keep my opinion. I 24 don't think what you suggested applies to this particular 25 case, and then I'll write that in a report.
1171 If he had put -- like -- I just had about 2 a couple of months ago, one (1) of my pediatric cases, he 3 raised a couple of options. And he put it in writing. 4 And so then I called him back and I said, 5 Yes, I've looked into that, but in this particular case, 6 because of the age of the -- of the child, and plus that 7 clinical information, plus the neuropathological 8 findings, all that, it's more supportive of my opinion 9 than yours. If it was an older child, I would have taken 10 all that option you indicated. 11 Then he agreed and he said, That's fine. 12 Then I told him, I'm going to put another report, then he 13 said, No, write it in that my report saying that you have 14 discussed without telephone -- by phone, and now I agree 15 with you. 16 You -- you write that and say the date, so 17 that's what I did. 18 MS. MARA GREENE: Okay. So the contact, 19 be it by phone or email or letter, gets recorded -- 20 DR. CHITRA RAO: Yes. 21 MS. MARA GREENE: -- and the disagreement 22 and the discussion gets recorded? 23 DR. CHITRA RAO: Definitely. 24 MS. MARA GREENE: Does that happen with 25 you as well, Dr. Dexter?
1181 DR. DAVID DEXTER: Yes, it does. 2 MS. MARA GREENE: Does it happen with you 3 also, Dr. Shkrum? 4 DR. MICHAEL SHKRUM: Similar procedure, 5 yes. 6 MS. MARA GREENE: Okay. Now has there -- 7 we'll start with Dr. Dexter -- ever been a time where you 8 don't reach a consensus? And if so, how is that 9 recorded? 10 DR. DAVID DEXTER: I haven't had a 11 situation where there has been an issue with consensus. 12 I've had issues where it's, perhaps, clarification of 13 areas, perhaps formulating the report slightly 14 differently. 15 These were not substantive issues of 16 pathologic interpretation. 17 MS. MARA GREENE: Dr. Rao, how about 18 yourself? 19 DR. CHITRA RAO: No, only the incidents I 20 have quoted. Other than that, no. 21 MS. MARA GREENE: Okay. Dr. Shkrum...? 22 DR. MICHAEL SHKRUM: I assume by -- in 23 one (1) particular case my formal feedback to Dr. 24 Pollanen's initial concerns was not answered. I assumed 25 that he agreed with -- with my proposal.
1191 DR. MICHAEL SHKRUM: Okay. Thank you. I 2 want to go into another area that had been raised 3 yesterday in detail, and I was left a bit confused, and I 4 just want to clear it up, for my sake -- I may be the 5 only one confused on this. 6 And it was about logging the exhibits. 7 When there is an autopsy, items are seized, be it samples 8 or tissues or anything found on the person that you're 9 doing the autopsy on. 10 The responsibility of documenting or 11 logging what is seized; does that lay with the 12 pathologist, the pathologist assistants, or the police 13 officer? 14 DR. MICHAEL SHKRUM: I -- I view it, 15 personally, as a joint responsibility. I will log in my 16 worksheet as to what items are seized. Obviously, it's 17 the police officer's responsibility to log -- obviously, 18 log what I turn over to the -- to them. 19 And, of course, sometimes I -- I may, if 20 there's a large number of exhibits, I may have missed 21 something. So, in turn, I will ask for an exhibit list 22 to be provided to me by the police on occasion. 23 MS. MARA GREENE: Dr. Rao...? 24 DR. CHITRA RAO: In my situation, I 25 dictate. I use a micro-Dictaphone, and so if I see a
1201 trace evidence, I'll dictate that and we are taking 2 photographs. So we have two (2), three (3) morgue 3 attendants, so one (1) will be assisting me and one (1) 4 will be a clean person. 5 So, suppose I'm taking a hair sample 6 retrieving, so that person will have their envelope ready 7 for me to hand over, and the Ident officer's there or the 8 exhibit officer. He usually times, Okay, at 10:00 a.m. 9 this was, you know, retrieved. But I don't give the 10 time. 11 I just go through. And then that's done 12 and it's put on the counter table there. And then like 13 that every step as we retrieve. So there's one (1) clean 14 person morgue attendant will give me -- like blood; I 15 retrieve blood so he'll keep the tube ready so that for 16 me to transfer the blood into that tube. 17 So, all that is done and it's put on the 18 table, at the end of the autopsy the exhibit officer and 19 myself will sit. And we also have labels. So as soon as 20 one (1) assistant takes that sample, he'll have the 21 label, that label is put in the tube, put the medicolegal 22 number there so there's no mix up. 23 And when everything is organized, then we 24 both sit, we signed the seal, co-sign, and then we'll 25 seal the specimen, and then hand over. And as we do --
1211 you saw a copy of the exhibit sheet we have in the 2 department, that's all documented. 3 MS. MARA GREENE: All right. And 4 exhibits that do not go to the police or do not get sent 5 to CFS for testing, you still document those on your 6 exhibit sheets? 7 DR. CHITRA RAO: Exactly. And only 8 exhibits which the police don't take sometimes is that -- 9 sometimes it may start as a suspicious death, and then 10 later on it's made it, you know, at the end of the 11 autopsy, doesn't look like, then the exhibit officer may 12 say -- especially blood sample, urine sample, Dr. Rao, 13 you can forward it to the Centre of Forensic Sciences. 14 But sometime if you have seal, if he is 15 there, I'll get his signature. 16 MS. MARA GREENE: Dr. Dexter...? 17 DR. DAVID DEXTER: I'll -- my situation 18 is similar to Dr. Shkrums. I view it as a combined team 19 effort between the pathologist and the identification 20 officers. Generally the responsibility of documation -- 21 documentation is -- I need the complete documentation, 22 and I take specific responsibilities with regards to some 23 of those samples, particularly the toxicological ones, 24 the fingernail scrapings and so forth, that are coming 25 off the body.
1221 Things like clothing and so forth will be 2 a more simpler handoff to the identification officer, who 3 will bag and -- and label them appropriately. So there 4 are -- it depends a little bit on the case; on the 5 numbers of samples being generated as to how complex it 6 is. 7 With regards to the responsibility of 8 submitting those samples, i.e., what happens to them at 9 that point post-mortem, the identification officer is 10 usually responsible for many of the pills that might have 11 been found, many of the trace evidence off clothing, and 12 the clothing-type -- type of exhibits; they will take 13 them with them. 14 In a homicide and suspicious death, there 15 will be a discussion as to whether the toxicological 16 samples of fluids -- blood, urine, vitreous -- will be 17 the responsibility of the police to transport it down to 18 the Centre of Forensic Sciences, or whether we, as a 19 unit, will transport it down through courier. 20 All of these things are covered with 21 forensic seals and appropriately documented on specimen 22 submissions sheets. 23 MR. MARA GREENE: But at the end of the 24 day, with all three (3) of you, you will have in your own 25 office a list of everything seized with the seal number
1231 attached to it. 2 Is that fair? 3 DR. DAVID DEXTER: Yes. 4 DR. CHITRA RAO: Yes. But only thing is 5 in criminally suspicious and homicide, we don't handle -- 6 like, we give it to the exhibit officer. They routinely 7 transfer it to the Centre of Forensic Sciences. 8 And in other cases where we start 9 suspicious, but that later on turned out to be okay -- 10 but in those cases if you had done vaginal swab or oral 11 swab, we don't retain in the department. 12 We give it to the police, and the 13 identification officer, they have to retain. And once 14 after six (6) or eight (8) months, if they say the case 15 is not proceeding and it's straightforward, it's up to 16 them to discard, but we don't keep it in our department. 17 DR. MICHAEL SHKRUM: I just want to add 18 something, too. I seal some of the samples. I seal the 19 toxicology samples; the samples for analysis for alcohol 20 and drugs. Other samples that I turn over from the 21 autopsy, I rely on the Forensic Identification Officer to 22 do that just because of the -- the time factor. 23 I don't always have the seal numbers that 24 the Forensic Ident Officer has -- has made at the time, 25 but those could be available later on in an exhibit list
1241 or in their submission to the Centre of Forensic 2 Sciences, as there's invariably an exhibit list that's 3 attached to that. 4 The other thing is that there -- sometimes 5 there are the rare samples that would be retained within 6 the hospital for a period of time. In a homicide or 7 criminally suspicious death, one (1) sample that would be 8 retained for at least a short period of time would be the 9 vitreous sample, which is the eye fluid sample. 10 If there's an -- and issue of dehydration 11 in an individual, such as a child, that eye fluid can be 12 tested for -- to assess that. But that testing is not 13 available at the Centre of Forensic Science; it's 14 available in hospital laboratory. 15 If it is a criminally suspicious death, 16 that sample then may actually go from the autopsy suite 17 up to a lab to be analysed in the hospital. 18 If that is the instance then -- and I've 19 had this happen in the past where I've actually taken a 20 sample myself, accompanied by a police officer, the 21 analysis is done at -- at that time, and then the sample 22 then is returned back to us, so there's continuity. 23 It's recorded who's handled that sample, 24 it then is -- is returned back to us and then sealed, and 25 then kept by the police.
1251 MR. MARA GREENE: I gather there's no 2 protocol that you -- that has been given out for Ontario 3 on how to deal with exhibits. You each have all 4 developed your own process for this. 5 Is that fair? 6 DR. CHITRA RAO: We have developed our 7 own process in the past, but now in the guidelines there 8 is outlined what you should do, yes. 9 DR. MICHAEL SHKRUM: There's a general 10 principle of continuity of -- 11 DR. CHITRA RAO: A principle -- 12 DR. MICHAEL SHKRUM: -- evidence. 13 MR. MARA GREENE: But the actual process 14 is up to you as to how you ensure the continuity of 15 evidence? 16 DR. MICHAEL SHKRUM: Yes. 17 DR. CHITRA RAO: The underlying principle 18 is that. 19 DR. DAVID DEXTER: Yeah. 20 DR. CHITRA RAO: You have to maintain the 21 chain of custody. 22 MR. MARA GREENE: Now, Dr. Rao, earlier 23 today you were asked some questions about testifying at 24 Children's Aid Society type hearings. 25 And, if I understood your evidence
1261 correctly -- and please correct me if I'm wrong -- I 2 think what you testified to today is that you don't like 3 to testify at CAS hearings prior to criminal trials 4 because you're concerned that you can compromise the 5 criminal trial. 6 And I'd like you to expand on that 7 position. Why do you think your evidence at a CAS 8 hearing would compromise a criminal trial? 9 DR. CHITRA RAO: Sometimes these cases 10 come up even before we are completely -- completed the 11 case; it could be just preliminary, and so we are giving 12 evidence of that. And on that preliminary we may have a 13 certain opinion, and then later on when we really 14 finalize the report, we then receive more information or 15 report -- toxicology report -- so ba -- we may change 16 that, and that may be a question. 17 And then we are subjected to more cross- 18 examination -- But you said this and how have you 19 changed? why have you changed? 20 MS. MARA GREENE: But I gather your 21 change in opinion would be justified and appropriate. 22 DR. CHITRA RAO: Yes, that's right. 23 MS. MARA GREENE: So, there would be no 24 actual jeopardy to the criminal proceeding. It would 25 just be -- take a matter of explaining the changes in
1271 opinion. 2 DR. CHITRA RAO: I suppose that's 3 correct, yes. 4 MS. MARA GREENE: All right. Dr. Shkrum, 5 do you have any opinions about testifying at the CAS; 6 concerns about it would jeopardize a criminal trial? 7 DR. MICHAEL SHKRUM: I've only had, I 8 think, one (1) experience where there was a custody 9 hearing for a child that was born subsequently to a child 10 that died. And in that case the autopsy was already 11 available, it was sort of out there, and as I recall, 12 that was the only documentation I really provided to the 13 -- to this particular hearing, so I have limited 14 experience in that regard. 15 MS. MARA GREENE: Dr. Dexter...? 16 DR. DAVID DEXTER: No, no experience in 17 this. 18 MS. MARA GREENE: Okay. And then I just 19 have one (1) area left, and I -- and I don't know if 20 you're able to answer this question, and it deals with 21 only the two (2) of you who do pediatric cases. 22 But we've heard a substantial amount of 23 evidence during the course of this Inquiry about Shaken 24 Baby Syndrome and the changes in science and -- and the 25 potential and the request for a review of some hundred
1281 and forty-two (142) cases, and I know you don't have your 2 -- your files in front of you, and I wouldn't ask you to 3 sort of reveal any names of any cases, but I'll start 4 with Dr. Rao. 5 Thinking back now over the past, you know, 6 decade or so, can you think of cases where you've 7 testified on shaken baby cases where there had been 8 convictions where, to your knowledge, the science has 9 changed and might have altered your opinion had you known 10 now -- known then what you know now? 11 DR. CHITRA RAO: It again depends upon 12 the circumstances. And I would like to know why you made 13 the diagnosis and what kind of information. At that 14 time, for example, there was nothing, no history, only 15 history was that Kara (phonetic) was trying to feed the 16 child and the child suddenly became blue and collapsed. 17 And then at the time of autopsy, I'm 18 seeing evidence of subdural and retinal haemorrhage, and 19 perineal sheet haemorrhage, and detailed microscopic 20 examination of the brain showed diffused axonal injury. 21 On that basis, I made the diagnosis of Shaken Baby 22 Syndrome. 23 And later on, it supposed to cour -- it 24 went to Court and the conviction was none, but later on 25 if there is any information, there's a possibility of --
1291 there is a history of a fall; if I had that information, 2 maybe then I'll rethink, and again, fall is, one also has 3 to come to the -- I think there were lots of discussion 4 about short fall can cause brain injuries, such at this. 5 But for me, more than the distance of the 6 fall, for me, the important factor I'll take into 7 consideration is the impact surface;, if the child came 8 in contact with a unyielding surface. 9 And so if there -- there -- if there is an 10 element, yes. If I can't differentiate whether this fall 11 could have caused those conditions, then maybe I would 12 just say acute cranial cerebral trauma. 13 And I will take that possibly if I'm 14 questioned. Could that have caused these injuries you're 15 seeing? And then if I'm not sure, I'll -- I'll have to 16 agree, yes, there is a possibility. 17 MS. MARA GREENE: And, I guess, looking 18 back now over the cases you've testified on over the 19 past, you know, fifteen (15) years or so -- 20 DR. CHITRA RAO: Correct. 21 MS. MARA GREENE: -- can you think of any 22 cases where now, given the change in science, your 23 testimony or your opinion would be different? 24 DR. CHITRA RAO: I don't think I can 25 answer that un -- until I know what are the
1301 circumstances, on what basis they're questioning that. 2 MS. MARA GREENE: Dr. Shkrum, can you 3 think of any cases? 4 DR. MICHAEL SHKRUM: I'm not aware of 5 any. I've done fewer cases in this kind of scenario than 6 Dr. Rao has, but I work in close liaison with a 7 neuropathologist who is very interested in forensic work, 8 Dr. David Ramsay, who I mentioned yesterday. 9 I think we're very careful when we 10 approach these cases, and we've worked out some criteria 11 as to how to approach them. But, certainly, if, you 12 know, the science has changed and if -- if there's some 13 type of consensus that develops that, you know, requires 14 these cases to be reviewed, well, you know, so be it. 15 I'm certainly open to such a review. 16 MS. MARA GREENE: And I'm correct, Dr. 17 Dexter, you don't do pediatric cases, is that correct? 18 DR. DAVID DEXTER: Not since about 1999, 19 so... 20 MS. MARA GREENE: So -- well, do you have 21 cases from the 1990s, then, where you've testified on 22 that related to Shaken Baby Syndrome cases that, because 23 of the change in science, your opinion might be different 24 today than it was then? 25 DR. DAVID DEXTER: I have no such cases.
1311 MS. MARA GREENE: Thank you. I have no 2 further questions. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 4 Greene. Thanks, Ms. Greene. 5 And Ms. Fraser...? 6 7 CROSS-EXAMINATION BY MS. SUZAN FRASER: 8 MS. SUZAN FRASER: Thank you, Mr. 9 Commissioner. Doctors, my name is Sue Fraser and I'm 10 here on behalf of a children's rights organisation called 11 Defence for Children International, which is an 12 international movement in support of children's rights. 13 Dr. Shkrum, yesterday you spoke very 14 briefly about the 10 percent of cases in deaths under 15 five (5) where you would follow a protocol to rule out 16 suspicious trauma, and I just wanted to -- 17 DR. MICHAEL SHKRUM: Not 10 percent, but 18 all -- all deaths under five (5). 19 MS. SUZAN FRASER: All deaths under five 20 (5). And just -- 21 DR. MICHAEL SHKRUM: With some 22 exceptions. 23 MS. SUZAN FRASER: All right. And the 24 protocol I understood you to be speaking about is the 25 protocol established by the Office of the Chief Coroner.
1321 Is that correct, or is -- 2 DR. MICHAEL SHKRUM: Yes, it goes back to 3 memorandum 631. 4 MS. SUZAN FRASER: All right. All right. 5 And I just wanted to clear that up. I'm going to move to 6 a discussion, and Dr. Dexter, I'll probably leave you out 7 of this since I don't -- I understand you don't have 8 experience with the committees, but I had some questions 9 for you about your experiences with the Paediatric Death 10 Review Committee and the Death Under Five Committee. 11 And, Dr. Rao, I understand that you did, 12 in the early -- or in the late 1980s, attend 13 approximately three (3) meetings of the Paediatric Death 14 Review Committee. 15 Is that correct? 16 DR. CHITRA RAO: That's correct. 17 MS. SUZAN FRASER: And I understand that 18 you had met Dr. Cairns at a meeting of the American 19 Academy of Forensic Sciences and, at the time, the 20 Committee was updating its protocol on autopsy 21 procedures. 22 Is that correct? 23 DR. CHITRA RAO: That's correct. At that 24 time it was a protocol for pediatric deaths under two 25 (2).
1331 MS. SUZAN FRASER: All right. And had 2 you met Dr. Cairns before that? 3 DR. CHITRA RAO: Oh, yes. 4 MS. SUZAN FRASER: Okay. Okay, so it 5 just happened you were both there and you had -- 6 DR. CHITRA RAO: Correct. 7 MS. SUZAN FRASER: -- this discussion and 8 that led to the invitation to come to the Paediatric 9 Death Review Committee. 10 DR. CHITRA RAO: That's correct. 11 MS. SUZAN FRASER: All right. And you 12 did assist them in terms of, not the death investigation 13 protocol, but a protocol about what procedures are to be 14 taken in pediatric autopsies. 15 DR. CHITRA RAO: That's correct. 16 MS. SUZAN FRASER: All right. And I 17 understand that you did not attend the Paediatric Death 18 Re -- Review Committee after that. 19 DR. CHITRA RAO: No. 20 MS. SUZAN FRASER: All right. I 21 understand that you're -- and I'm -- I know that there 22 are -- you're -- you've currently been invited to attend 23 at the Death Under Five Committee, so I sort of wanted to 24 talk a little bit about the past before I get to what's 25 currently the situation, if I may.
1341 And I understand that when you do a 2 pediatric post-mortem report, that you send that report 3 to your Regional Supervising Coroner, is that correct? 4 DR. CHITRA RAO: That would be in the 5 past, yes. 6 MS. SUZAN FRASER: All right. And that 7 that pediatric -- or the Regional Supervising Coroner 8 would then send that under the death -- to the Death 9 Under Five Committee. 10 DR. CHITRA RAO: That's correct. At that 11 time -- are you talking about the past or the present? 12 MS. SUZAN FRASER: In the past. 13 DR. CHITRA RAO: Past is under two (2) -- 14 under two (2). 15 MS. SUZAN FRASER: All right. 16 DR. CHITRA RAO: And then again they have 17 two (2) committee; one (1) Paediatric Death Review 18 Committee, and another was Review Committee Under Two. 19 MS. SUZAN FRASER: Right. 20 DR. CHITRA RAO: So, they will send the 21 report, yes. 22 MS. SUZAN FRASER: All right. So in the 23 -- before the establishment of the Death Under Two 24 Committee ,you only had the Paediatric Death Review 25 Committee, as I understand it.
1351 DR. CHITRA RAO: Yes. 2 MS. SUZAN FRASER: All right. And so 3 later on you were sending those reports either to the 4 Death Under Two and what's now the Death Under Five 5 Committee. 6 DR. CHITRA RAO: I wasn't sending, but 7 the report was forwarded through the Regional Supervising 8 Coroner. 9 MS. SUZAN FRASER: Right. And I take it 10 that you were never invited to the Committee to discuss 11 your decisions and the pathology and the autopsy work. 12 Is that fair? 13 DR. CHITRA RAO: That's correct. 14 MS. SUZAN FRASER: All right. So the 15 Committee -- the Death Under Five or the Death Under Two 16 or whatever committee was discussed in the post-mortem 17 report -- would have this discussion about the cause and 18 manner of death in absence of the pathologist who 19 actually did the autopsy. 20 DR. CHITRA RAO: That's correct. 21 MS. SUZAN FRASER: All right. And I take 22 it that there would have been some benefit for you, 23 personally, to attend those meetings to understand what 24 the discussion and the concerns might be or -- or what 25 the Committee thought of the report.
1361 DR. CHITRA RAO: Yeah, there's a benefit 2 to that. And even -- even if you don't attend, if you 3 have a report summation saying what took place; whether 4 they agreed with our opinion or if there is a difference 5 of opinion, we would like to hear that. But, 6 unfortunately, in the past, we have had no communication 7 to that effect. 8 Or if -- if we ask the Regional 9 Supervising Coroner what has happened, they'll say, oh, 10 the -- you know, satisfactory or that was okay, no 11 concern. But even if there's no concern, we would have 12 liked to know what it is. 13 MS. SUZAN FRASER: Okay. Okay, and Dr. 14 Shkrum, are your experiences the same? 15 DR. MICHAEL SHKRUM: Well, I've only had 16 -- I've attended one (1) meeting of the Death Under Five 17 Committee. 18 MS. SUZAN FRASER: I'm sorry, I didn't -- 19 I didn't hear that. 20 DR. MICHAEL SHKRUM: I -- I've only 21 attended one (1) meeting of the Death Under Five 22 Committee. 23 MS. SUZAN FRASER: All right. 24 DR. MICHAEL SHKRUM: That was in 25 December. And again, I -- I asked Dr. Pollanen whether
1371 we could have some, you know, further educational 2 opportunities to -- for -- for pediatric forensic 3 pathology -- pathology, and he thought it would be a good 4 idea to have Dr. -- Drs. Rao and I participate in that 5 committee. 6 Also, to actually alleviate some of his 7 workload, so we would rotate on a rotational basis. 8 MS. SUZAN FRASER: You're not the first 9 person to express the concern about the workload that Dr. 10 Pollanen's taking on. 11 DR. MICHAEL SHKRUM: He has a lot of work 12 to do. 13 MS. SUZAN FRASER: All right. 14 DR. MICHAEL SHKRUM: In -- in the past 15 though, and similar to Dr. Rao's experience, I -- I did 16 ask a number of years ago a member of that -- of that 17 committee, and I -- again, I can't recall who it was, so 18 I don't want to make the wrong attribution, but I asked - 19 - you know, we don't get any feedback from that committee 20 regarding our work. 21 And the reply was, Well, we have -- your - 22 - your work is fine, there are large problems in the 23 Province. 24 MS. SUZAN FRASER: All right. One (1) of 25 the issues that my client has raised is that in -- in
1381 different forms, is that we don't know the work that the 2 Pediatric Death Review Committee is doing until it 3 produces a report, and it doesn't report on all of its 4 cases. 5 Would you, as pathologists, find a benefit 6 to having regular reporting on the types of discas -- 7 cases that are discussed and the problems either in the 8 pathology or the discussions that they have. 9 Would that be useful to you, as 10 pathologists? 11 DR. CHITRA RAO: Yes, it's useful. 12 MS. SUZAN FRASER: Dr. Dexter's nodding 13 his head. 14 DR. DAVID DEXTER: Yes, I am. 15 DR. CHITRA RAO: Yes, it's useful. And 16 that report -- sorry. 17 DR. MICHAEL SHKRUM: I'm sorry, go ahead. 18 DR. CHITRA RAO: -- that copy of that 19 report can also go into our file, so in future in ten 20 (10) years time, somebody else is reviewing, so all the 21 facts will be in that file. 22 MS. SUZAN FRASER: All right. 23 DR. MICHAEL SHKRUM: Besides that would 24 be very helpful. 25 MS. SUZAN FRASER: All right. So not
1391 just your own cases, but what's going on in cases of 2 other pathologists or other cases that are going before 3 the -- either the Death Under Five Committee or the 4 Pediatric Death Review Committee? 5 DR. CHITRA RAO: The pathologist who is 6 responsible for the autopsy case should be notified of 7 the committee's finding. 8 DR. MICHAEL SHKRUM: But I think, as a 9 general principle of education, there should be some 10 feedback, if there -- you know, there are -- there are 11 issues that are being discussed during that meeting that 12 impact on our practices, in a general way, we should be 13 informed about it. 14 MS. SUZAN FRASER: It -- it seems to me 15 it's already a sort of built-in peer review, except that 16 the feedback's not getting back to the pathologist. 17 Is that fair? 18 DR. MICHAEL SHKRUM: Well, my experience 19 at this meeting -- I mean, there were issues raised 20 regarding other pathologist's report, and my 21 understanding there would be some type of feedback that 22 would be given to them by the committee. 23 MS. SUZAN FRASER: All right. And you're 24 currently, Dr. Shkrum and Dr. Rao, you've been invited to 25 participate in the Death Under Five Committee, and Dr.
1401 Shkrum you -- you talked about how you had those 2 discussions with Dr. Pollanen. 3 And I understand that that's on a 4 rotational basis with one (1) of you attending every 5 three (3) months, is that...? 6 DR. CHITRA RAO: Yes, Dr. Michael Shkrum 7 attended in December. I've been asked to attend in 8 February. 9 MS. SUZAN FRASER: All right. And prior 10 to you attending there, the -- the pathologists who 11 formed part of that committee were all from the Toronto 12 area. 13 Is that correct? 14 DR. CHITRA RAO: Most of the committee 15 members were -- consisted of people from the Toronto 16 unit, that's correct. 17 DR. MICHAEL SHKRUM: Yes. 18 MS. SUZAN FRASER: All right. All right. 19 Just want to turn briefly to the guidelines for 20 criminally suspicious deaths in infancy. And that's at 21 Tab -- and that's part of the general October 2007 22 protocol. You'll find it at Tab 2 -- sorry, Tab -- 23 DR. CHITRA RAO: Volume. 24 MS. SUZAN FRASER: 53. Volume II, Tab 25 53. Pardon me. And that's PFP139350. So just looking
1411 at the first page; this, I understand, as what you 2 identified as being the current practice. And if we 3 could turn, Mr. Registrar, to page 35. 4 DR. MICHAEL SHKRUM: And understand that 5 these are not standards of practice, they -- they are 6 guidelines. I'm -- I'm sure that's been pointed out 7 already. 8 MS. SUZAN FRASER: Right. 9 DR. CHITRA RAO: And it's -- made it very 10 clear that the individual pathologist can choose -- 11 DR. MICHAEL SHKRUM: Mm-hm. 12 DR. CHITRA RAO: -- you know, their way 13 of doing, but as long as we have the general principle of 14 it. 15 MS. SUZAN FRASER: All right. And these 16 guidelines, are they helpful to you, Dr. Rao? 17 DR. CHITRA RAO: Yes. 18 MS. SUZAN FRASER: All right. Dr. 19 Shkrum...? 20 DR. MICHAEL SHKRUM: Yes. 21 MS. SUZAN FRASER: All right. And if you 22 could turn -- I'm at the portion, you'll see on page 35, 23 with homicidal or criminally suspicious in infancy or 24 childhood. And I just wanted to turn the page to the 25 section that deals with the special challenges of
1421 pediatric forensic pathology that are set out at 45.4. 2 So that's on page 36 of that document. 3 DR. CHITRA RAO: Yes. 4 MS. SUZAN FRASER: And all of these 5 things, from the lay perspective, sound good to me, but I 6 want to know whether they speak to you as pathologists in 7 terms of you understanding what is meant by them. I 8 understand you've had some involvement and consultation 9 with respect to that. 10 So just looking at the pathology of the 11 different forms of acute and chronic physical and child 12 abuse, is that something that you understand as being 13 established into the literature as to what that pathology 14 is? 15 DR. CHITRA RAO: Yes. 16 DR. MICHAEL SHKRUM: Yes. 17 MS. SUZAN FRASER: And the pathology of 18 neglect and starvation, that is something that you as 19 pathologists understand what your looking for? There's a 20 general consensus on those issues? 21 DR. CHITRA RAO: Yes. 22 DR. MICHAEL SHKRUM: Yes. 23 MS. SUZAN FRASER: All right. And the 24 evolving nature of forensic pathology of infantile head 25 injury including the so called Shaken Baby Syndrome, what
1431 does that mean to you, Dr. Rao? 2 DR. CHITRA RAO: There are many cases 3 where a child can develop subdural hemorrhage. Every 4 subdural hemorrhage doesn't have to be Shaken Baby 5 Syndrome. And sometimes you also infantile -- during 6 difficult childbirth, the child can have some forms of 7 evidence of brain injuries. 8 So one has to take that into 9 consideration. And what it says is you know, you have to 10 know the background information and then correlate that 11 information with the autopsy findings and then come to a 12 correct conclusion of the case. 13 MS. SUZAN FRASER: All right. And I take 14 it that each of the -- the special challenges identify 15 sort of particular frailties of pediatric forensic 16 pathology, challenges that you might face in terms of 17 your decision making, and these point you to what you 18 need to be alive to, is that fair? 19 DR. CHITRA RAO: That's fair. 20 DR. MICHAEL SHKRUM: Yes. 21 MS. SUZAN FRASER: Okay. And just 22 finally, you talked a little this morning about 23 practising in isolation, and now that -- that there's a 24 change. And I take it, having listened to your evidence 25 over the course of two (2) -- or a day and a half now,
1441 that part of that is the development of the Regional 2 Forensic Pathology Units, that's -- that's part of moving 3 out of isolation, is that fair? 4 DR. CHITRA RAO: Yes. 5 DR. MICHAEL SHKRUM: Yes. 6 MS. SUZAN FRASER: Another factor would 7 be changes from the Toronto Office or the Chief Forensic 8 Pathologist that involves pathologists outside of 9 Toronto, is that fair? 10 DR. MICHAEL SHKRUM: Yes. 11 DR. DAVID DEXTER: Yes. 12 DR. CHITRA RAO: Yes. 13 MS. SUZAN FRASER: Okay. Dr. Dexter, can 14 you -- do you share that, that the practice has become 15 less iso -- isolationist and more collegial? 16 DR. DAVID DEXTER: Absolutely. And this 17 has been most marked since Dr. Michael Pollanen was 18 appointed. 19 MS. SUZAN FRASER: All right. 20 DR. DAVID DEXTER: He's made very -- very 21 strong efforts to do that. He's visited our unit, for 22 example, and spent a day educating us and seeing our 23 facilities and so forth. 24 He's reached out in many different ways. 25 MS. SUZAN FRASER: All right. And are
1451 there other factors that you would identify, Dr. Rao? 2 DR. CHITRA RAO: Factors in relation to? 3 MS. SUZAN FRASER: In terms of the 4 change. You -- you -- I think you spoke positively about 5 the changes -- 6 DR. CHITRA RAO: That's correct. 7 MS. SUZAN FRASER: -- that are occurring, 8 and I want to just -- if you wanted to identify any other 9 things that you think help in terms of making the 10 practice of forensic pathology more collegial and more 11 instructive to you, so that you benefit, or -- 12 DR. CHITRA RAO: Yes. I think Dr. Shkrum 13 had highlighted earlier that we have to have more 14 education courses concerning pediatric forensic 15 pathology. And then especially when a matter comes up 16 such as Shaken Baby Syndrome where there's so much 17 controversy, we have to be exposed to that and a decision 18 has to be made. Where do we stand on this? 19 MS. SUZAN FRASER: All right. 20 DR. CHITRA RAO: And it should be a 21 uniform -- uniformity across the province. 22 MS. SUZAN FRASER: And so what I -- I 23 think I hear you're say -- what you're saying is that you 24 would benefit from further development of consensus type 25 statements within the Ontario pathologists of how to
1461 approach particular problems; dilemmas that you might 2 face like what to do with confessions, sort of, on the 3 practical side as -- and also on the scientific side, is 4 that fair? 5 DR. CHITRA RAO: That's correct. 6 DR. DAVID DEXTER: Yes. Yes. 7 DR. MICHAEL SHKRUM: In a sense, these 8 guidelines are a consensus. They're the consensus built 9 up amongst forensic pathologist in the province, but 10 there may be some consensus required on legal issues such 11 as confessions. 12 MS. SUZAN FRASER: All right. Thank you 13 very much for your -- your answers, and thank you very 14 much for -- for the work that you do on behalf of my 15 client. 16 DR. MICHAEL SHKRUM: Thank you. 17 MS. SUZAN FRASER: I'd like to extend 18 that, thank you. 19 DR. DAVID DEXTER: Thank you. 20 DR. CHITRA RAO: Thank you. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 22 Fraser. 23 Mr. Cavaluzzo...? 24 25 CROSS-EXAMINATION BY MR. PAUL CAVALUZZO:
1471 MR. PAUL CAVALUZZO: Good afternoon, my 2 name is Paul Cavaluzzo and I represent the Ontario Crown 3 Attorney's Association and Crown attorneys who are not 4 part of management. 5 My focus this afternoon is going to be 6 related to systemic issues in respect of your interaction 7 with the Legal System, indeed with -- with lawyers. But 8 one (1) question for clarification at the commencement of 9 my examination relates to peer review in respect of 10 homicide cases and criminally suspicious cases. 11 Now, I -- I understand that -- that Dr. 12 Pollanen will review all of the reports that you do in 13 this regard, is that correct? 14 DR. CHITRA RAO: I don't know whether 15 they -- he reviews all the reports, but all suspicious 16 and criminally suspicious and homicide cases either he -- 17 from the -- issued by the Medical Directors of Regional 18 Forensic Unit. 19 MR. PAUL CAVALUZZO: Right. 20 DR. CHITRA RAO: Either he reviews it or 21 he may delegate somebody else to that. 22 MR. PAUL CAVALUZZO: Or it's delegated, 23 okay. Now what I -- 24 MR. DAVID DEXTER: Yes. 25 MR. PAUL CAVALUZZO: Oh, I'm sorry.
1481 DR. DAVID DEXTER: No, I was just going 2 to agree with that. 3 MR. PAUL CAVALUZZO: Okay. What I'd like 4 to -- just to clarify in my own mind, and I may be the 5 only one in the room that doesn't understand this, is the 6 role that is played by the Death Under Five Committee, 7 and I'm talking about the present time. I'm talking 8 about present time in -- in the future. 9 Now if a peer review is done by Dr. 10 Pollanen and/or his delegate, does it then go to the 11 Committee for Death Under -- Under Five? 12 DR. CHITRA RAO: Yes, it does. 13 MR. PAUL CAVALUZZO: So it -- it goes -- 14 first, there is the initial peer review by Dr. Pollanen 15 or his delegate, and then it goes to the Committee for 16 Death Under Five, is that correct? 17 DR. MICHAEL SHKRUM: I think that would 18 be my understanding. I did not see any actual reviews at 19 my -- the meeting I attended, but I would think that 20 would be the process. 21 MR. PAUL CAVALUZZO: Okay. And is your 22 report finalized when it is completed or reviewed by the 23 Death Under Five Committee? 24 DR. MICHAEL SHKRUM: These are all 25 completed reports, I think, yes.
1491 MR. PAUL CAVALUZZO: Okay. Now, I'd like 2 to move to your interaction with lawyers, dealing first 3 with your communication with defence counsel. 4 And I think that you would all agree, and 5 if you don't, tell me, and that it would be valuable for 6 defence counsel to approach you if you are testifying for 7 the Crown as the pathologist, is that correct? 8 DR. CHITRA RAO: Yes. 9 DR. MICHAEL SHKRUM: Yes. 10 DR. DAVID DEXTER: Yes, it is. 11 MR. PAUL CAVALUZZO: Okay. And the next 12 question would be, are you aware as to whether the Crown 13 Attorney would object to this approach by the defence 14 counsel? 15 DR. CHITRA RAO: I don't think so, not -- 16 DR. MICHAEL SHKRUM: I -- I'm not aware 17 of that, no. 18 MR. PAUL CAVALUZZO: Okay. Now, you told 19 us, I guess, yesterday, and let me just summarize, that 20 one (1) of the -- there are a couple of purposes here as 21 to this approach by defence counsel. 22 In other words, you can convey the meaning 23 of language that you are using. You can convey limits to 24 your opinion and limits to your expertise, and so on and 25 so forth. And you told us this morning that if this is
1501 done, if the approach is made by defence counsel, then 2 you call the Crown Attorney as a courtesy, is that 3 correct? 4 DR. MICHAEL SHKRUM: That's been my 5 practice. 6 DR. CHITRA RAO: Yes. 7 MR. PAUL CAVALUZZO: And it's not for the 8 permission of the Crown Attorney, but for -- as a matter 9 of courtesy. 10 DR. CHITRA RAO: Yes. 11 DR. MICHAEL SHKRUM: Yes. 12 DR. DAVID DEXTER: Yes. 13 DR. CHITRA RAO: That's only the cases we 14 have done -- 15 MR. PAUL CAVALUZZO: Okay. 16 DR. CHITRA RAO: -- in that area. 17 MR. PAUL CAVALUZZO: And -- and a 18 question that I would have related to that is, after 19 you've had the meeting with defence counsel, do you then 20 phone the Crown Attorney and tell the Crown Attorney what 21 took place at this meeting with -- with the defence 22 counsel? 23 DR. MICHAEL SHKRUM: No. 24 DR. DAVID DEXTER: No. 25 DR. CHITRA RAO: I have done it
1511 occasionally. 2 MR. PAUL CAVALUZZO: I'm sorry, you have 3 never -- 4 DR. CHITRA RAO: I have done that, yeah. 5 MR. PAUL CAVALUZZO: So two (2) "no's" 6 and one (1) "occasionally". 7 DR. CHITRA RAO: Yeah. 8 MR. PAUL CAVALUZZO: Is there a reason 9 why you contacted the Crown Attorney to advise? 10 DR. CHITRA RAO: When I just -- as a 11 courtesy call I have informed, and then the Crown 12 Attorney may say, Okay, will you let me know what took 13 place or something like that. 14 MR. PAUL CAVALUZZO: Right. 15 DR. CHITRA RAO: And then I'll just -- I 16 may not go into detail -- 17 MR. PAUL CAVALUZZO: Right. 18 DR. CHITRA RAO: -- but I'll just say 19 these are the issues, yeah. 20 MR. PAUL CAVALUZZO: Okay. 21 DR. DAVID DEXTER: I would like to 22 clarify on my point -- 23 MR. PAUL CAVALUZZO: Yes. 24 DR. DAVID DEXTER: -- this has happened 25 on only one (1) occasion.
1521 MR. PAUL CAVALUZZO: Right. 2 DR. DAVID DEXTER: And the communication 3 was one (1) of a courtesy call to the coroner to say that 4 I'd been asked to talk to the defence. I just wanted to 5 let you know that I will have an open and frank 6 conversation with them about the case material, but I 7 have not reported any content of that -- 8 MR. PAUL CAVALUZZO: Okay. 9 DR. DAVID DEXTER: -- discussion with the 10 defence lawyers back to the Crown. 11 MR. PAUL CAVALUZZO: Right. And -- and 12 presumably, from what you're saying, I think you said 13 earlier that you would benefit from guidelines in this 14 regard as to inter -- interactions with defence counsel. 15 DR. MICHAEL SHKRUM: That would be 16 certainly helpful. 17 MR. PAUL CAVALUZZO: Okay. 18 DR. DAVID DEXTER: Yes. 19 MR. PAUL CAVALUZZO: Does the Crown ever 20 attend this meeting that you have with defence counsel? 21 DR. CHITRA RAO: Occasionally. I've had 22 a couple of cases where -- especially in pediatric deaths 23 and -- 24 MR. PAUL CAVALUZZO: Okay. 25 DR. CHITRA RAO: -- the defence
1531 pathologist wanted to come and review the pictures and 2 the defence wanted to be there, so we had a combined 3 meeting and we went through all the pictures, and that 4 cut short our time on the stand. 5 MR. PAUL CAVALUZZO: So it is beneficial 6 if both counsel attend. It defines the issues and cuts - 7 - could cut a good deal of time in respect of the amount 8 of time you have to spend in -- in court? 9 DR. CHITRA RAO: I agree there. 10 DR. MICHAEL SHKRUM: I agree. 11 DR. DAVID DEXTER: I agree. 12 MR. PAUL CAVALUZZO: Okay, thank you. 13 Now I'd like to move on to another area, and that is 14 communication -- communications with the pathologists 15 called by the defence. And you've just had some 16 interaction with that in terms of some of your 17 questioning. 18 And I think you would agree as scientists, 19 that this is a good idea, is that correct? 20 DR. MICHAEL SHKRUM: Yes, I think so -- 21 yes. 22 DR. CHITRA RAO: I think so, yes. 23 DR. DAVID DEXTER: Yes. 24 MR. PAUL CAVALUZZO: Okay. And once 25 again, it would narrow the -- could narrow the issues
1541 between both pathologists, is that correct? 2 DR. MICHAEL SHKRUM: Yes. 3 DR. DAVID DEXTER: Yes. 4 DR. CHITRA RAO: Yes. 5 MR. PAUL CAVALUZZO: Have you ever had a 6 meeting with defence -- with the defence pathologist 7 wherein you changed your mind or were given other 8 information that could have affected your opinion? 9 DR. CHITRA RAO: I haven't had that -- 10 DR. MICHAEL SHKRUM: No, in fact I don't 11 think I've ever met with a defence pathologist. 12 MR. PAUL CAVALUZZO: Okay. 13 DR. DAVID DEXTER: I haven't either, no 14 experience in that. 15 MR. PAUL CAVALUZZO: Okay. But would you 16 agree with me as a scientist, that if the defence 17 pathologist was to give you different information, other 18 information, it could possibly affect your opinion before 19 the trial? 20 DR. MICHAEL SHKRUM: That's possible, 21 yes. 22 DR. CHITRA RAO: That's possible. 23 DR. DAVID DEXTER: That's possible. 24 MR. PAUL CAVALUZZO: And you would agree 25 with me that that would be beneficial for the
1551 administration of justice? 2 DR. MICHAEL SHKRUM: I agree. 3 DR. DAVID DEXTER: Yes. 4 DR. CHITRA RAO: Yes, in one (1) of my -- 5 one (1) instances where the Crown called me and said that 6 the defence had approached two (2) experts and then their 7 opinions slightly differs and he said, What do we do? 8 So I said, First of all before I testify, 9 I would like to have the report and then I said, if you 10 have any concern maybe you should consult another 11 pathologist to review my case. 12 And that's -- that's exactly he did, and 13 then it worked out very well. 14 MR. PAUL CAVALUZZO: Right. So that as a 15 -- as a scientist, before you testify, you would prefer 16 to see the reports of the defence pathologist? 17 DR. CHITRA RAO: It think it's fair. 18 DR. MICHAEL SHKRUM: Yes, it would be 19 fair. 20 MR. PAUL CAVALUZZO: All agree? 21 DR. DAVID DEXTER: Yes. 22 MR. PAUL CAVALUZZO: Okay. Now I'd like 23 to briefly move on to what some have referred to as -- as 24 quality assurance or feedback. And you've told us, much 25 to our surprise, that you have received absolutely no
1561 feedback whatever concerning the testimony which you gave 2 in -- in court. 3 And I'd -- let me just make some 4 suggestions to you. When you were asked about the 5 forensic science, the procedure there -- let me just put 6 a couple of things to you. 7 First of all, do you think it might be 8 beneficial if a form was developed where by both defence 9 counsel and the Crown attorney submitted feedback on 10 agreed upon criteria such as how you testified, the 11 clarity of your testimony, whether you changed your 12 testimony, and so on and so forth? 13 Do you think that kind of feedback would 14 be useful to you if it was coming from both sides, not 15 just one (1) side or the other? 16 DR. CHITRA RAO: I think it would 17 definitely be useful. 18 DR. MICHAEL SHKRUM: Very useful, as long 19 as it's not an onerous document for either side to fill 20 out. 21 MR. PAUL CAVALUZZO: Okay. 22 DR. DAVID DEXTER: I would agree. 23 MR. PAUL CAVALUZZO: Now the other 24 practical concern you raised in respect of this is who 25 would collect it. We've got limited resources at the
1571 Regional Units, and therefore, it would be difficult for 2 your colleagues to collect this information. 3 But wouldn't you agree with me that it 4 might be very useful for the Chief Forensic Pathologist 5 of Ontario to compile all of this information and to 6 maintain some kind of registry of -- of qualified 7 pathologists in this province? 8 DR. MICHAEL SHKRUM: I think that would 9 be good. I mean, that's part of his oversight function. 10 In fact, he might have to form some type of committee 11 that would vet those reports. 12 MR. PAUL CAVALUZZO: Right. And any 13 feedback or any problems that you experience in terms of 14 your performance in court could be given to you by this 15 committee or by the Chief Forensic Pathologist? 16 DR. MICHAEL SHKRUM: Yes. 17 DR. CHITRA RAO: That would be very 18 helpful. 19 DR. DAVID DEXTER: Absolutely. But it 20 also offers an opportunity for potential retraining or -- 21 MR. PAUL CAVALUZZO: Right. 22 DR. DAVID DEXTER: -- education on how to 23 approach those particular problems encountered or 24 described. 25 MR. PAUL CAVALUZZO: Okay.
1581 DR. DAVID DEXTER: So it's a -- a 2 tremendous opportunity. 3 DR. MICHAEL SHKRUM: Yes, it would have 4 to be the appropriate mechanism for remedial action. 5 MR. PAUL CAVALUZZO: Right. And that 6 really lends me into my final area, and that is education 7 and training. 8 And it would seem that from all of your 9 evidence that you would agree that it would be 10 beneficial, at least once a year, if all of the important 11 stakeholders in the system got together -- that is not 12 only pathologists, but perhaps police and certainly 13 defence counsel, Crown attorneys and indeed, judges on 14 occasion? You would all agree with that? 15 DR. CHITRA RAO: Yes. 16 DR. DAVID DEXTER: Yes. 17 DR. MICHAEL SHKRUM: I agree. 18 MR. PAUL CAVALUZZO: And certainly, Dr. 19 Rao, you commented that you have attended certain 20 seminars and education conferences put on by Crown 21 Attorneys where mock trials were performed and you 22 thought that that was very valuable. 23 DR. CHITRA RAO: Excellent. It was. 24 MR. PAUL CAVALUZZO: Okay. A couple of 25 questions in that regard. I note that, Dr. Dexter, you
1591 and Dr. Shkrum both are located in cities wherein there 2 are law schools, Queens and -- and, of course, Western. 3 Is there any interaction at all between 4 your offices and the law school? 5 DR. MICHAEL SHKRUM: Well, a number of 6 years ago my colleague, Dr. Ramsey,(phonetic) and I 7 participated in a mock Court exercise for law students 8 and this occurred over several years. 9 We -- we actually picked out cases from 10 our own files, obviously sanitized in terms of 11 identification. 12 MR. PAUL CAVALUZZO: Right. 13 DR. MICHAEL SHKRUM: This was actually at 14 the -- at the request of Mr. Mike Cormier; C-O-R-M-I-E-R. 15 He was in charge of the legal aid clinic at -- at the -- 16 at the law school at Western, and also in charge of this, 17 what you call a clinical legal education course, so he 18 had about a half a dozen students that participated in 19 this exercise, but unfortunately, once he left the law 20 faculty, that basically, sort of, petered out. 21 There were some limited involvement 22 following that, an occasional lecture, but ironically, I 23 do have an email that I saw just before I left from a 24 first year law student at Western who read Professor 25 Sharon's paper that was provided here and asked -- has
1601 asked me to speak to me again, so -- 2 MR. PAUL CAVALUZZO: Right. Right. 3 DR. MICHAEL SHKRUM: -- so I'm happy to 4 do so. 5 MR. PAUL CAVALUZZO: So that is the -- 6 the limited interaction you have with law schools -- 7 DR. MICHAEL SHKRUM: That's right. 8 MR. PAUL CAVALUZZO: -- at Western and -- 9 DR. MICHAEL SHKRUM: And fortunately that 10 hasn't been a consistent exercise. 11 MR. PAUL CAVALUZZO: Right. And -- and 12 the same is true at Queens? 13 DR. DAVID DEXTER: We -- under the 14 direction of Dr. Andrew McCallum, (phonetic) he talked to 15 the Faculty of Law at Queens and we had a meeting, and I 16 can't recall the -- the particular law profession, but 17 the idea was to look at some interaction between senior 18 law students and ourselves in the Forensic Unit to, sort 19 of, open up an educational opportunity. 20 This was approximately two (2) years ago 21 and it's been pretty quiescent since -- 22 MR. PAUL CAVALUZZO: Right. 23 DR. DAVID DEXTER: -- so there's been no 24 activity since then. I -- I still view it as a -- as an 25 opportunity, however.
1611 MR. PAUL CAVALUZZO: And, Dr. Rao, I 2 won't ask you because McMaster doesn't have a law school 3 yet. I understand they're -- 4 DR. CHITRA RAO: No. 5 MR. PAUL CAVALUZZO: -- going to, but... 6 DR. CHITRA RAO: No, but I just wanted to 7 highlight, when Dr. Rex Ferris was running the 8 department, annually, we had a one (1) day meeting for 9 the Crown and the defence. 10 MR. PAUL CAVALUZZO: Right. 11 DR. CHITRA RAO: And then in briefing, 12 they will decide what cases and then they will put 13 different hypothetical situations and then they will 14 discuss, and it was very useful. 15 MR. PAUL CAVALUZZO: Right. 16 DR. CHITRA RAO: At that time I was a 17 resident. And then after he left, it has never been. 18 And once or twice, we have had a show and tell kind of 19 thing. The defence lawyers have come through our 20 department and we show them some cases and we'd discuss; 21 otherwise, we don't have anything regular. 22 MR. PAUL CAVALUZZO: Were you aware that, 23 although it's not the centre of the universe, Ottawa, the 24 Ottawa Law School has a course, a full term course, in 25 forensic science of which a unit is -- is pathology where
1621 students are taught how to deal with the pathological 2 evidence and so on, were you aware of that? 3 DR. DAVID DEXTER: Yes, Trent University 4 also has some forensic training and we actually do 5 support individuals coming from Trent to spend some time 6 with the Forensic Unit. 7 In fact, tomorrow they are -- a coachload, 8 were supposed to arrive in Kingston to spend some time 9 with me and a couple of other individuals to go over 10 things forensic and facilities and -- and issues, 11 wherever they may take us in discussion. 12 MR. PAUL CAVALUZZO: Okay. Just one (1) 13 -- one (1) final question to Dr. Rao, and you -- you 14 described this unfortunate isolated infe -- incident in 15 Toronto, and -- and from your testimony this morning, is 16 it fair to say that -- that the concern expressed was 17 more a fact that you were coming into the big city to 18 testify with big city experts, as opposed to you were 19 going to be testifying on behalf of defence? 20 DR. CHITRA RAO: Yeah, that's the 21 impression I got from the Crown. And the Crown also 22 objected in the sense -- the Crown didn't think I was 23 qualified because I did not spend any time in the Centre 24 of Forensic Sciences -- 25 MR. PAUL CAVALUZZO: Okay.
1631 DR. CHITRA RAO: -- Pathology Department. 2 MR. PAUL CAVALUZZO: Thank you very much. 3 Thank you, Commissioner. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 5 Cavaluzzo. Ms. Mackay...? 6 7 CROSS-EXAMINATION BY MS. HEATHER MACKAY: 8 MS. HEATHER MACKAY: My name is Heather 9 MacKay and I'm one (1) of the lawyers representing the 10 Province of Ontario at the Inquiry. 11 And, Dr. Rao, I'm just going to follow-up 12 on the last topic that Mr. Cavaluzzo raised as well. I 13 understand that the incident occurred when you testified 14 outside of your regular jurisdiction? 15 DR. CHITRA RAO: Yes. 16 MS. HEATHER MACKAY: And it's not a 17 regular occurrence when you testify for the defence 18 within your regular jurisdiction? 19 DR. CHITRA RAO: That's correct. 20 MS. HEATHER MACKAY: And it hasn't 21 stopped you from testifying for the defence in your 22 regular jurisdiction? 23 DR. CHITRA RAO: That's correct. 24 MS. HEATHER MACKAY: Is it fair to say 25 that you and your extensive qualifications are well known
1641 to Crown attorneys and defence counsel within the 2 jurisdiction in which you testify? 3 DR. CHITRA RAO: I hope so. 4 MS. HEATHER MACKAY: And is it also fair 5 to say that you haven't worked as frequently with counsel 6 in the Toronto area? 7 DR. CHITRA RAO: That's correct, but 8 there are some lawyers, the Crown as well as defence, 9 that know me because as some lawyers have transferred 10 from Toron -- from Hamilton and they've gone to Toronto, 11 so they know about me, yes. 12 MS. HEATHER MACKAY: That you generally 13 would work more with counsel in your own area? 14 DR. CHITRA RAO: That's correct. 15 MS. HEATHER MACKAY: And so would it be 16 fair to say then that you would be less well known and 17 your extensive qualifications would be less well known to 18 counsel in Toronto? 19 DR. CHITRA RAO: I don't think that's the 20 issue because if they really want there are ways they can 21 find out. And in this particular case, the Crown did 22 take that step and wanted to know where we were -- I had 23 worked, whether -- you know, how I had done, and whether 24 -- they really wanted to know whether there was any 25 skeleton in the closet.
1651 MS. HEATHER MACKAY: Right. 2 DR. CHITRA RAO: And so there's no 3 question. What my question is the lack of giving 4 professional courtesy in court. That was my objection. 5 And -- and especially in front of twelve (12) jurors you 6 take a -- and it was really very intimidating and it's -- 7 I was upset, and it took me a long time to overcome that. 8 MS. HEATHER MACKAY: Yes. And it was an 9 isolated incident, you haven't -- 10 DR. CHITRA RAO: That's correct. 11 MS. HEATHER MACKAY: -- encountered that 12 since -- 13 DR. CHITRA RAO: That's correct. 14 MS. HEATHER MACKAY: -- that time? 15 DR. CHITRA RAO: Yes. 16 MS. HEATHER MACKAY: Thank you. Those 17 are all of my questions, Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 19 MacKay. Ms. McAleer. 20 21 RE-DIRECT EXAMINATION BY MS. JENNIFER MCALEER: 22 MS. JENNIFER MCALEER: Just one (1) quick 23 point of clarification, Mr. Commissioner. Doctors, you 24 were asked some questions earlier today about courtesy 25 calls that you make to the Crown attorneys, and I think
1661 we're all clear that in situations where it's anticipated 2 that you will testifying for the Crown if you are, in 3 fact, contacted by defence counsel, you will make a 4 courtesy phone call to the Crown that's in charge of the 5 case, correct? 6 DR. DAVID DEXTER: Yes. 7 DR. CHITRA RAO: Yes. 8 DR. MICHAEL SHKRUM: That's correct. 9 MS. JENNIFER MCALEER: In other 10 situations, though, where you are contacted, let's say, 11 out of the blue by defence counsel and requested to do a 12 consultation or potentially testify for the defence in a 13 case in which you've had no prior involvement, in those 14 circumstances, you do not contact Crown counsel, is that 15 correct? 16 DR. CHITRA RAO: That's correct. 17 DR. MICHAEL SHKRUM: That's correct. 18 DR. DAVID DEXTER: That's correct. 19 MS. JENNIFER MCALEER: Thank you. That's 20 my only point of clarification. 21 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 22 McAleer. Well, it remains for me to thank the three (3) 23 of you very much. 24 DR. MICHAEL SHKRUM: Oh, thank you. 25 COMMISSIONER STEPHEN GOUDGE: We benefit
1671 enormously from the time you take and the wisdom you have 2 been good enough to impart to us. So -- 3 DR. MICHAEL SHKRUM: We appreciate the 4 opportunity. 5 DR. CHITRA RAO: We appreciate the 6 opportunity. 7 COMMISSIONER STEPHEN GOUDGE: Well, we 8 are very grateful for you coming, so -- 9 DR. DAVID DEXTER: Thank you. 10 COMMISSIONER STEPHEN GOUDGE: -- safe 11 trips back to your various destinations. 12 DR. CHITRA RAO: Thank you. 13 COMMISSIONER STEPHEN GOUDGE: We will 14 rise now until Monday morning at 9:30. 15 16 (WITNESSES STAND DOWN) 17 18 --- Upon adjourning at 12:45 p.m. 19 20 Certified Correct, 21 22 ___________________ 23 Rolanda Lokey, Ms. 24 25