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 21st, 2008 25
21 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa (np) ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich (np) ) 12 13 Brian Gover (np) ) Office of the Chief Coroner 14 Luisa Ritacca ) for Ontario 15 Teja Rachamalla (np) ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron ) 20 Grant Hoole (np) ) 21 22 William Carter (np) ) Hospital for Sick Children 23 Barbara Walker-Renshaw(np) ) 24 Kate Crawford ) 25
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Association 4 5 Mara Greene ) Criminal Lawyers' 6 Breese Davies ) Association 7 Joseph Di Luca (np) ) 8 Jeffery Manishen (np) ) 9 10 James Lockyer (np) ) William Mullins-Johnson, 11 Alison Craig (np) ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 Peter Wardle ) Affected Families Group 14 Julie Kirkpatrick ) 15 Daniel Bernstein (np) ) 16 17 Louis Sokolov ) Association in Defence of 18 Vanora Simpson (np) ) the Wrongly Convicted 19 Elizabeth Widner (np) ) 20 Paul Copeland (np) ) 21 22 Jackie Esmonde ) 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 (np) ) Defence for Children 3 ) International - Canada 4 5 William Manuel ) Ministry of the Attorney 6 Heather Mackay (np) ) General for Ontario 7 Erin Rizok ) 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 CATHERINE TERRI REGIMBAL, Sworn 4 EDWARD HAROLD BRADLEY, Sworn 5 BRIAN WILFRED GILKINSON, Sworn 6 7 Examination-In-Chief by Mr. Mark Sandler 6 8 9 Certificate of transcript 266 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:34 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Mr. Sandler...? 7 MR. MARK SANDLER: Good morning, 8 Commissioner. 9 This morning you will be hearing from 10 three (3) senior Crown counsel, each of whom had 11 involvement in one (1) of the cases that has been the 12 subject of our review. 13 I would ask that our Registrar swear in 14 each of the witnesses please. 15 16 CATHERINE TERRI REGIMBAL, Sworn 17 EDWARD HAROLD BRADLEY, Sworn 18 BRIAN WILFRED GILKINSON, Sworn 19 20 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Good morning everyone. 22 Mr. Gilkinson, if I could start with you 23 briefly. I understand that you were called to the Bar in 24 1980? 25 MR. BRIAN GILKINSON: That is correct.
71 MR. MARK SANDLER: That you commenced 2 your employment with the Crown Attorney's office in 3 Peterborough in April of that same year? 4 MR. BRIAN GILKINSON: Correct. 5 MR. MARK SANDLER: And as I understand 6 it, you have remained as Crown counsel at the 7 Peterborough office since that time? 8 MR. BRIAN GILKINSON: Yes. 9 MR. MARK SANDLER: Some twenty-seven (27) 10 years? 11 MR. BRIAN GILKINSON: That is correct. 12 MR. MARK SANDLER: And in 1997 and 1998, 13 which is a time period that I'll be asking you some 14 questions about in a few moments, as I understand it the 15 office employed two (2) Crown counsel full-time and one 16 (1) Crown counsel part-time. 17 Is that right? 18 MR. BRIAN GILKINSON: Correct. 19 MR. MARK SANDLER: And at the time, who 20 was the Crown Attorney for Peterborough, Coburg and 21 Lindsay? 22 MR. BRIAN GILKINSON: David Thompson. 23 MR. MARK SANDLER: All right. And as I 24 understand it, in 1998 there was a competition for the 25 new Crown Attorney for Peterborough, and in early 1990
81 you were appointed to that position. 2 Am I right? 3 MR. BRIAN GILKINSON: Yes. 4 MR. MARK SANDLER: And did you have an 5 Assistant Crown Attorney at that point in time? 6 MR. BRIAN GILKINSON: I did, John 7 Marsland. 8 MR. MARK SANDLER: And subsequently, was 9 there an added complement to your team? 10 MR. BRIAN GILKINSON: In September of 11 1999, we hired James Hughes. 12 MR. MARK SANDLER: All right. And 13 currently, could you describe the composition of the 14 Peterborough's Crown's Office? 15 MR. BRIAN GILKINSON: I have five (5) 16 Assistant Crown Attorneys, one (1) Provincial prosecutor 17 and myself as Crown. 18 MR. MARK SANDLER: Okay. And I'm going 19 to be taking you to it in a few moments. but as I 20 understand it you had involvement at one (1) point in the 21 Brenda Waudby prosecution and ultimately in the 22 prosecution of JD concerning the death of Ms. Waudby's 23 daughter, Jenna. 24 Is that right? 25 MR. BRIAN GILKINSON: Correct.
91 MR. MARK SANDLER: If I can leave you for 2 a moment and turn to Ms. Regimbal; Ms. Regimbal, when was 3 it that you were called to the Bar? 4 MS. TERRI REGIMBAL: 1986. 5 MR. MARK SANDLER: All right. And as I 6 understand it that -- that for a point in time you worked 7 in various positions, both as a defence counsel and as 8 Crown counsel. 9 Is that right? 10 MS. TERRI REGIMBAL: Yes, that's correct. 11 MR. MARK SANDLER: Could you very briefly 12 describe for the Commissioner your experience from the 13 call to the Bar on? 14 MS. TERRI REGIMBAL: I started with the 15 Duty Counsel Office at Old City Hall, then I was hired to 16 work full time/part-time for Old City Hall and College 17 Park, and then I was hired at the Etobicoke Crown 18 Attorney's Office as an Assistant Crown Attorney in 1987, 19 I believe the Spring of 1987. 20 And in the -- some point in 1988 I 21 transferred to the Timmins Crown Attorney's Office as an 22 Assistant Crown Attorney and I worked there until March 23 of 1990. And then I became Crown Attorney for the 24 district of Timiskaming. I held that position until 25 1997.
101 I resigned and went into private practice 2 for three (3) years. I did a variety of work criminal 3 defence work, family law, employment law; as we all have 4 to be up there, just a jack of all trades. Then I 5 returned to the Crown attorney's office in, I think, 6 2000, to the North Bay Crown attorney's office, to head 7 up the domestic violence court program. 8 I did that for a year then I returned back 9 to the Timiskaming Crown attorney's office as an 10 assistant Crown. And then in 2003, I believe, I became 11 the district Crown attorney again for the district of 12 Timiskaming. 13 MR. MARK SANDLER: All right. And is 14 that your current position? 15 MS. TERRI REGIMBAL: That's my current 16 position, yes. 17 MR. MARK SANDLER: All right. And I also 18 understand that you either have served or serve now as 19 the acting Regional Director of Crown Operations for 20 North Region. 21 Is that right? 22 MS. TERRI REGIMBAL: Well, I -- I took 23 that in the rotating position from August until the end 24 of November of 2007. Based out of Sudbury. 25 MR. MARK SANDLER: Okay. And as I
111 understand it, you were involved as Crown counsel in the 2 prosecution of what we know here as the case involving 3 the death of Amber. 4 Is that right? 5 MS. TERRI REGIMBAL: Yes, that's correct. 6 MR. MARK SANDLER: Okay. Now if I can 7 turn to Mr. Bradley for a moment, as I understand it, you 8 were called to the bar in 1975? 9 MR. EDWARD BRADLEY: That'S correct. 10 MR. MARK SANDLER: And that you were in 11 private practice from March of 1975 to September 1976, 12 primarily practising criminal law? 13 MR. EDWARD BRADLEY: Correct. 14 MR. MARK SANDLER: And from September 15 1976 to March 1980 you were with the Department of 16 Justice, its Toronto Office in the Criminal Prosecution 17 Section? 18 MR. EDWARD BRADLEY: Correct. 19 MR. MARK SANDLER: And then subsequently 20 you joined the Ministry of the Attorney General, Crown 21 attorney's office in March 1980 as an assistant Crown 22 attorney, and that was in Whitby, I believe? 23 MR. EDWARD BRADLEY: That's also correct. 24 MR. MARK SANDLER: All right. And at 25 some point, I believe in November of 1988, you were
121 appointed the Crown attorney for Lennox and Addington. 2 Is that so? 3 MR. EDWARD BRADLEY: Yes, and I've been 4 there ever since. 5 MR. MARK SANDLER: And for those who are 6 uninitiated, Lennox and Addington is -- is the Napanee 7 office. 8 Am I right? 9 MR. EDWARD BRADLEY: That's correct. 10 MR. MARK SANDLER: Okay. And as the 11 Commissioner has heard, and I'll ask you about this as 12 well a little bit later in the day, you became involved 13 at one point in the prosecution of the case involving the 14 death of the child known as Sharon. 15 Is that right? 16 MR. EDWARD BRADLEY: I did, yes. 17 MR. MARK SANDLER: Okay. Now what I'm 18 going to do, Commissioner, is I'm -- I'm going to lead 19 the evidence first of Mr. Gilkinson in connection with 20 the Jenna case. So, Mr. Bradley and Ms. Regimbal, you 21 can relax for a few moments while I pose some questions 22 of Mr. Gilkinson. 23 Now, Mr. Gilkinson, just by way of 24 background, we have heard from the evidence at this 25 Inquiry that Jenna was born in Peterborough in April 1995
131 and was pronounced dead at 1:50 in the morning on January 2 the 22nd of 1997 at the age of twenty-one (21) months. 3 Ms. Waudby was charged with second degree 4 murder on September the 18th of 1997. Jenna's sister was 5 apprehended by Children's Aid Society on the date of 6 Jenna's death, returned to Ms. Waudby's care three (3) 7 and a half months later and then reapprehended when Ms. 8 Waudby was charged with murder. 9 Now, just to be clear, did you have any 10 involvement in this case or interaction with Children's 11 Aid concerning this case up to the point when the 12 decision was made to charge Brenda Waudby? 13 MR. BRIAN GILKINSON: No. 14 MR. MARK SANDLER: Now we've heard that 15 you later did become involved in this case. Could you 16 describe for the Commissioner at what point in the cases 17 status did you become first involved? 18 MR. BRIAN GILKINSON: Well, it was after 19 the preliminary inquiry. David Thompson went back to 20 Cobourg as the -- as the Crown attorney in Cobourg, once 21 an old system known as the pod system (phonetic) was 22 discontinued and competitions were held for Crown 23 attorneys in both Peterborough and Lindsay. So I became 24 the Crown in Peterborough and -- and David Thompson 25 renewed his -- resumed his -- his position in Cobourg. I
141 took over the case at that time. 2 MR. MARK SANDLER: All right. And so 3 you've described reference -- you've made reference to a 4 preliminary inquiry. We know that the preliminary 5 hearing was held in October of 1998. Did you have any 6 involvement in the preliminary inquiry or did you simply 7 learn about it after the fact? 8 MR. BRIAN GILKINSON: I did not. I did 9 not have no involvement in the preliminary inquiry at 10 all. 11 MR. MARK SANDLER: All right. And did 12 you later have occasion to read Dr. Smith's testimony 13 that had been given at the preliminary inquiry? 14 MR. BRIAN GILKINSON: Yes. 15 MR. MARK SANDLER: And we've heard that - 16 - that the obvious investigative issue for the police was 17 not whether the child had been killed, but when the fatal 18 injuries were inflicted on the child. And that was of 19 particular importance given the fact that Ms. Waudby had 20 been with the child up to shortly before 5:00 p.m. on 21 January the 21st, and the babysitter, JD, had been with 22 Jenna thereafter until the child appeared lifeless and 23 was transported to hospital. 24 And again, was that the issue, as you 25 understood it, that arose in the case?
151 MR. BRIAN GILKINSON: Yes. 2 MR. MARK SANDLER: Now, I'm going to ask 3 you about -- about your earlier involvement in the case, 4 and in order to do that, I'm going to take you to the 5 overview report which is at Tab 1 of your binder of 6 materials, PFP144684. 7 MR. BRIAN GILKINSON: I have it. 8 MR. MARK SANDLER: All right. And if I 9 can take you to paragraph 82 of the overview report, 10 which you'll find at page 55. 11 MR. BRIAN GILKINSON: I have it. 12 MR. MARK SANDLER: And we see reference 13 at paragraph 82 of the overview report to the fact that 14 after the preliminary inquiry Mr. Hauraney, who was the 15 defence counsel for Ms. Waudby, consulted with several 16 medical experts on the issue of the timing of Jenna's 17 injuries. 18 The experts consulted were Dr. Sigmund 19 Ein, Dr. Peter Fitzgerald, Dr. Ken Finkel, Dr. Chitra 20 Rao. They all challenged the testimony of Dr. Smith as 21 to the timing of the fatal injuries and suggested that 22 the injuries were more likely sustained within hours of 23 Jenna's death. 24 Now, just stopping there for a moment. 25 Did you have occasion to speak with Mr. Hauraney about
161 this case and about the availability of other defence 2 experts? 3 MR. BRIAN GILKINSON: I did. 4 MR. MARK SANDLER: And could you describe 5 for the Commissioner in general terms what prompted that 6 discussion and how the discussion went? 7 MR. BRIAN GILKINSON: Well, Mr. Hauraney 8 approached me after the preliminary inquiry, and -- after 9 he realized I was the continuing Crown on the matter, and 10 indicated that he had a collection of expert opinion that 11 would contradict Dr. Smith with respect to the timing 12 issue. 13 MR. MARK SANDLER: All right. And how 14 did you react to -- to that information and what did you 15 do as a result? 16 MR. BRIAN GILKINSON: Well, Mr. Hauraney 17 offered to -- to share the various opinions with me. 18 Obviously, he didn't have one from Dr. Rao, but I 19 certainly accepted his word that he had -- he had 20 consulted with Dr. Rao, and that her opinion was 21 consistent with the others. 22 When he provided that opinion to me, and I 23 had the opportunity to review it there was a very clear 24 divergence of opinion between Dr. Smith and what I would 25 call the preponderance of opinion that -- that he
171 apparently had with respect to the timing of the 2 injuries. 3 I asked Dr. -- or I asked Mr. Hauraney to 4 pick the strongest expert that he thought he had, and we 5 would try and arrange a meeting between that expert, Dr. 6 Smith, the police, and -- and the two (2) of us as 7 counsel would be present in the hopes that we could find 8 some common ground with respect to the issue of timing. 9 MR. MARK SANDLER: All right. So 10 stopping there for a moment because one (1) of the things 11 that the Commissioner is wrestling with are systemic 12 recommendations that -- that have to do with conflicting 13 experts and how one addresses those issues. 14 Did you find it helpful, first of all, for 15 the defence to disclose to you at this point in the 16 proceedings the fact that there were contrary viewed 17 experts that had been obtained? 18 MR. BRIAN GILKINSON: Well, I think it 19 was very helpful to the defence given the fact that the 20 charge was eventually withdrawn. 21 MR. MARK SANDLER: All right. And did 22 you find it a useful exercise to try to bring together 23 the experts with a view to seeing what common ground 24 could be obtained? 25 MR. BRIAN GILKINSON: Absolutely.
181 MR. MARK SANDLER: And -- and again, did 2 you see that as part of your role in the public interest 3 as Crown counsel? 4 MR. BRIAN GILKINSON: Absolutely. 5 MR. MARK SANDLER: All right. So if I 6 can take you to page 56 of the overview report, and -- 7 and in a few moments we'll look at the April 23rd, 1999 8 meeting that actually did take place that you were 9 present for. But the overview report reflects at 10 paragraph 85 that on December the 1st of 1998, Dr. Eins 11 spoke with Dr. Smith. Dr. Ein's notes from that 12 conversation reflected at that -- that at that time Dr. 13 Smith agreed with Dr. Ein's clinical opinion that the 14 fatal injury occurred on the evening of her death. 15 Now just stopping there for a moment. 16 Before you met with Dr. Ein and Dr. Smith and Mr. 17 Hauraney, had you been aware that Dr. Hine -- Ein had 18 already met with Dr. Smith -- 19 MR. BRIAN GILKINSON: No. 20 MR. MARK SANDLER: -- in that regard? 21 MR. BRIAN GILKINSON: No, I did not. 22 MR. MARK SANDLER: Okay. So let's move 23 forward, if we may, to paragraph 92. And paragraph 92 24 reflects that on April the 23rd of 1999, Dr. Ein posted a 25 two (2) hour meeting in his office with Crown counsel,
191 Brian Gilkinson, Mr. Hauraney, Dr. Smith, Detective 2 Constable Lemay, and Sergeant McNevan. 3 Dr. Ein's notes reflected that Mr. 4 Gilkinson asked all of the questions. In particular, he 5 asked a number of questions about the exact timing of the 6 injuries sustained by Jenna. 7 Dr. Ein noted that all of the questions 8 were [quote] "looking for angle to implicate mom" [closed 9 quote]. Dr. Ein told those present that it was 10 impossible to pin down the exact date the inju -- the 11 exact time, excuse me, the injuries were sustained, but 12 that he was 99.9 percent certain from the autopsy 13 findings that the injuries occurred after 17:00. 14 Towards the ends of his notes Dr. Ein 15 wrote: 16 "I think Crown attorney believes the 17 death came greater than 5:00 p.m. that 18 night." 19 Now, just stopping there for a moment. We 20 have Dr. Ein's notes of that meeting. We actually have a 21 reference to doc -- to Mr. Hauraney's notes given to the 22 College of Physicians and Surgeons in connection with 23 that meeting. We have a summary that you've made and a 24 email to Rita Zaied of that meeting, and we have Officer 25 Lemay's notes concerning that meeting. And all of those
201 are in the binder, but I don't intend to take you to them 2 unless -- unless you need any one (1) of them to assist 3 your memory. 4 You tell us what you recollect -- what 5 transpired at that meeting. 6 MR. BRIAN GILKINSON: Well, first of all, 7 all -- all of the notes to which you've just referred, 8 I've reviewed, and I consider them an accurate 9 representation of, given the perspective of the author. 10 With respect to the meeting, Dr. Ein is 11 correct that I essentially asked all the questions. My 12 concern was to go through the preliminary hearing 13 evidence given by Dr. Smith with respect to injuries, the 14 timing of those injuries, how the child would have -- 15 would have behaved given the types of injuries that were 16 described in -- in the post-mortem report. 17 And I wanted to just try again clarify 18 whether or not there was any possibility that Brenda 19 Waudby could be the agent of those injuries, and I think, 20 quite frankly, that led to Dr. Ein's notation that I was 21 looking for an angle to implicate mom. 22 I think it was a situation where we had 23 Ms. Waudby charged with the offence and before I took any 24 action with respect to that charge against her, I wanted 25 to eliminate any possibility that she could have been the
211 perpetrator of the offence. So that was my goal in going 2 into this -- this meeting. 3 So I asked a number of questions of Dr. 4 Smith with respect to the timing, evidence that I gave, 5 whether or not he recalled that, and he did. I asked Dr. 6 Ein's opinion with respect to the various injuries that 7 Dr. Smith had -- had laid out in his preliminary inquiry 8 evidence, and Dr. Eins basically started giving on 9 opinion with respect to the fatal injuries as having 10 occurred; as he's indicated, he was 99 percent certain 11 that they were -- they occurred after 5:00 p.m. That is 12 the ter -- the time the baby was turned over from Ms. 13 Waudby to the babysitter and certain members of her 14 family. 15 And I take it, after 5:00 p.m. is -- is 16 what is meant by -- by the note on paragraph 92 at the 17 bottom of that. 18 MR. MARK SANDLER: All right. And how, 19 if at all, did Dr. Smith react to the information as 20 being communicated by Dr. Ein at the meeting? 21 MR. BRIAN GILKINSON: Dr. Smith was in 22 complete agreement with Dr. Ein's position -- that all of 23 these injuries necessarily occurred after 5:00 p.m. The 24 only injuries that were -- did not fall within that time 25 frame, as I understood it from that meeting, were what
221 were characterized as old rib head fractures, and -- and 2 they were not considered germane to the issue of when the 3 baby Jenna had sustained her fatal injuries. 4 MR. MARK SANDLER: And to be clear, they 5 would be relevant to the question as to whether Jenna had 6 been abused in the past, but not in -- on the issue of 7 causation. 8 MR. BRIAN GILKINSON: That is correct. 9 MR. MARK SANDLER: Now, did it surprise 10 you that Dr. Smith had taken that position, accepting of 11 what Dr. Ein said at the meeting? 12 MR. BRIAN GILKINSON: There wasn't an 13 awful lot of debate back and forth between the two. He 14 was more than accepting. At -- at that stage, I 15 certainly had a preponderance of opinion from Mr. 16 Hauraney that -- that Dr. Smith was mistaken with respect 17 to some of the information he had given at the 18 preliminary inquiry. 19 And so I -- I can't say I was surprised by 20 the ultimate outcome of the meeting, but Dr. Smith's 21 ready acquiescence to Dr. Ein's opinion on timing was, 22 well, I'd say surprising. But quite frankly, it was 23 understandable given the discussion. 24 MR. MARK SANDLER: Now you had mentioned 25 earlier to the Commissioner that you had occasion to
231 review the evidence that Dr. Smith had given at the 2 preliminary inquiry, yeah; I take it before you attended 3 this meeting on April 23rd, am I right? 4 MR. BRIAN GILKINSON: Correct. 5 MR. MARK SANDLER: And the Commissioner 6 has -- has read those passages in their entirety, and 7 they're quite -- quite lengthy indeed. But I want to ask 8 you generally, what did you take from the testimony that 9 Dr. Smith had given at the preliminary inquiry? And did 10 you have any comments upon it? 11 MR. BRIAN GILKINSON: Well, my reaction 12 on reading it was that it depended on the specific organ 13 Dr. Smith appeared to be examining in terms of his 14 estimate of when, in relation to the death of Jenna, that 15 injury would have occurred. 16 And depending on the organ, there was a 17 variety of opinion that stretched from what I understood 18 was a minimum of six (6) to twelve (12) hours pre-mortem, 19 to twenty-four (24) to twenty-eight (28) hours, depending 20 on what organ he was talking about. 21 There was also an indication as evidence 22 that it depended on whether or not he assumed all of 23 these injuries occurred at the same time or they may have 24 occurred at different times. And in giving his response, 25 in particular, to Mr. Hauraney on cross-examination, it
241 appeared that -- that he talked about a number of factors 2 in terms of Jenna's ability to profuse the tissues, in 3 terms of how that would impact timing; whether or not the 4 subject of these wounds would -- would be a healthy 5 individual as opposed to a compromised individual. 6 And quite frankly, the testimony seemed 7 rather confusing in terms of trying to distill from it, a 8 simple indication, and maybe there's not a simple 9 indication, of just how long prior to the girl's death, 10 she sustained the fatal injuries. And that was difficult 11 to discern, from my standpoint. 12 MR. MARK SANDLER: All right. In your 13 mind, did -- did Dr. Smith ever express the opinion 14 during the preliminary inquiry, clearly or otherwise, 15 that -- that some of the fatal injuries that were 16 inflicted -- some or all of the fatal injuries that were 17 inflicted -- must have been inflicted peri-mortem; that 18 means relatively close to the time that the child had 19 died. 20 MR. BRIAN GILKINSON: Well, he did 21 indicate at one point in his preliminary hearing 22 evidence, if I'm not mistaken, that he had started off 23 from a position that -- that in fact, they were within a 24 few hours of the death of the child. 25 He talked about coming to that conclusion
251 by his observations of the naked eye at post-mortem. I 2 don't recall in -- in anything I know about the case, 3 that that was ever communicated to the police. 4 But he did say that in his evidence. But 5 he then went on to rely on microscopic findings as being 6 more reliable on the issue of timing. And that's when we 7 -- that's when he got into a long discussion with respect 8 to the factors that might impact on -- on microscopic 9 evidence of -- of healing and -- and its rate. 10 And it seemed that he was adopting a 11 position at the preliminary hearing, and I use the word 12 "seem", because I'm not sure. This is what I gleaned 13 from it; that we were talking about a time frame of six 14 (6) to twelve (12) hours up to, with respect to some of 15 these, possibly fatal injuries, of twenty-four (24) to 16 twenty-eight (28). 17 MR. MARK SANDLER: Okay. So -- and just 18 in fairness to you, we've actually heard some evidence 19 that -- that at the autopsy, Dr. Smith did initially 20 express the view that the fatal injuries must have been 21 inflicted within several hours of death. But as you say, 22 during the preliminary inquiry, he indicated that the 23 microscopy led him to -- to expand the window of 24 opportunity to -- to the larger timeframe which you've 25 described in your testimony here.
261 Let me ask you the same question that I 2 asked Detective Constable Charmley when he was here the 3 other day. Had Dr. Smith maintained the position with 4 the police, that the fatal injuries must have been 5 inflicted within several hours of death, would the police 6 have had reasonable and probable grounds to charge Brenda 7 Waudby? 8 MR. BRIAN GILKINSON: No, if we're 9 talking about within several hours being nowhere close to 10 the five o'clock turnover time. 11 MR. MARK SANDLER: Now as a result of the 12 meeting on April the 23rd of 1999, where were you at in 13 terms of your state of mind and what did you think should 14 then happen? 15 MR. BRIAN GILKINSON: Well, I indicated - 16 - I had travelled back and forth to that meeting with 17 Constable Lemay and Sergeant McNevan of the Peterborough 18 Community -- Peterborough Lakefield Community Police 19 Service. And I had indicated to them on -- on the way 20 back to Peterborough that in all likelihood I would be 21 withdrawing this charge and -- and they really should -- 22 the police really should turn their attention once again 23 to the babysitter in terms of any involvement he may have 24 had in the death, and anyone else that had contact with 25 the baby while she was in the care of the babysitter.
271 MR. MARK SANDLER: Okay. And did you see 2 that the Crown should take any other steps before a 3 determination was made as to whether these charges would 4 be withdrawn? 5 MR. BRIAN GILKINSON: Well, I did. I had 6 the opinion proffered by Mr. Hauraney; that was 7 concerning. I had the information from the meeting 8 between Dr. Ein, Dr. Smith and the police and counsel. 9 And certainly Dr. Ein's opinion, to that point in time, 10 carried the day vis-a-vis one (1) Crown witness. 11 I thought it important to notify the 12 Office of the Chief Coroner and I spoke with Dr. Bonita 13 Porter and indicated to her the present state of affairs 14 with respect to the Crown's case in this matter and 15 invited her to consult and offer an opinion on what had 16 happened with respect to the difference in medical 17 opinion and what had happened with respect to Dr. Smith's 18 abdication of his opinion in favour of that of Dr. Ein. 19 MR. MARK SANDLER: Now just stopping 20 there for a moment. As I understand it, you raised not 21 the factual issue with Dr. Porter, in other words, what 22 the Chief Coroner's Office could tell you as to where -- 23 where factually the appropriate opinions lay, but you 24 also raised a policy concern of yours, didn't you? 25 MR. BRIAN GILKINSON: Well, I wanted to
281 ensure that we had the most complete record of opinion 2 possible from those people engaged in supplying it 3 initially to -- to the Crown. That's why I went back to 4 the Office of the Chief Coroner and consulted with them. 5 MR. MARK SANDLER: All right. Now if I 6 can just take you from -- from this document for a moment 7 and just look at the overview report at page 90. And I'm 8 interested in one (1) of the systemic issues that's 9 thrown up by -- by the events as you've described them in 10 the Jenna case. 11 And just to let you know what you're 12 reading from, as you may recall Detective Constable 13 Charmley later provided a very detailed report 14 summarizing what his review had shown. And in that 15 detailed report, we see at the bottom of page 90, he has 16 said this: 17 "It is apparent that the initial 18 investigation -- that in the initial 19 investigation, a clinical opinion 20 should have been obtained about Jenna's 21 injuries and how she would behave with 22 such injuries. Dr. Smith is able to 23 provide extended time lines for Jenna's 24 fatal injuries. However, he is not an 25 expert in the living child to advise
291 how Jenna would behave while still 2 living with these injuries. It appears 3 that during ongoing communications 4 between police and medical experts that 5 the necessity of a clinician was either 6 overlooked or determined not to be 7 needed. However, Dr. Smith alleges to 8 have told defence counsel, after the 9 preliminary inquiry, that a clinical 10 opinion should be obtained." 11 Now, several issues arising out of that. 12 The -- the first is, do you agree or did you agree with 13 Detective Constable Charmley that -- that one (1) of the 14 deficiencies in the way this case had progressed was the 15 absence of a clinical opinion early in the process? 16 MR. BRIAN GILKINSON: I did, and I 17 communicated that to Dr. Porter. 18 MR. MARK SANDLER: All right. And just 19 stopping there for a moment. Can you -- can you help the 20 Commissioner out as to where you think the burden lies to 21 -- to determine when a clinical clinician should be 22 weighing in on the issues? How the police or the Crown 23 should know that to be the case? And -- and how that 24 clinician's opinion should be obtained? 25 MR. BRIAN GILKINSON: Well, if we're in
301 the business of each recognizing our own limitations, I 2 don't think the police know where to go or what -- what 3 opinion they may need from an expert, and -- and I don't 4 think the Crown does either. 5 I think when you need to consult with 6 either the Centre of Forensic Sciences or in this case, 7 the Office of the Chief Coroner, you're looking for some 8 assistance by way of laying out the background of what 9 you've got; stating the issues as you see them, and that 10 might be different than what you're getting back from the 11 Office of the Chief Coroner. And then hopefully, people 12 there -- pathologists or otherwise -- may be able to 13 recognize. 14 Or you're going to need a path -- 15 pathological opinion with respect to this particular 16 issue, but you may also need other areas of expertise. 17 In this case, a clinician certainly would have helped in 18 terms of telling us how Jenna would have behaved with the 19 injuries she sustained. 20 So I think quite frankly, it's the first 21 person that should know -- should have some medical 22 expertise and should be able to assist with other areas 23 of medical expertise that can be brought to bear on these 24 issues. 25 MR. MARK SANDLER: All right. So that
311 for example, if the forensic pathologist is the first 2 medical practitioner who -- who is involved in examining 3 the body and the pathology, and if the forensic 4 pathologist is aware that it would be of assistance to 5 the investigative process that -- that a clinician be 6 engaged, you'd expect that information to be communicated 7 to the police. 8 MR. BRIAN GILKINSON: I'd certainly 9 appreciate it, yes. 10 MR. MARK SANDLER: All right. And 11 there's reference made in Detective Charmley -- Detective 12 Constable Charmley's memorandum to the fact that Dr. 13 Smith alleges to have told defence counsel after the 14 preliminary hearing that a clinical opinion should be 15 obtained. 16 And there's some reference elsewhere to -- 17 to what Dr. Smith's involvement was or was not in -- in 18 steering this case to Dr. Ein. Did you have any 19 understanding as to how it was that Dr. Ein became 20 engaged in the case? 21 MR. BRIAN GILKINSON: As I've indicated, 22 Mr. Hauraney engaged Dr. Ein and a number of experts to 23 give him evidence or opinion with respect to the timing 24 of injuries. Once he communicated that opinion to me, I 25 asked him -- I asked Mr. Hauraney to arrange a meeting.
321 And it's my understanding in conversations 2 with Mr. Hauraney that Dr. Smith had nothing to do with 3 that. 4 MR. MARK SANDLER: Okay. Now, if we can 5 move ahead in the -- in the chronology of -- of events, 6 and I'm going to take you to Tab 18 of your materials, if 7 I may, because this tab raises yet another grouping of 8 systemic issues that the Commissioner will be wrestling 9 with. 10 And that is the interaction between the 11 Children's Aid Society and the -- and the criminal 12 process. So we see here on -- if you have that, it's 13 300012 at page 1. 14 15 (BRIEF PAUSE) 16 17 MR. MARK SANDLER: 300012. 18 MR. BRIAN GILKINSON: I have it. 19 MR. MARK SANDLER: Yes, we're just 20 waiting for -- 21 COMMISSIONER STEPHEN GOUDGE: We are 22 waiting for our technology, Mr. Gilkinson. 23 MR. BRIAN GILKINSON: Oh, okay. That's 24 fine. Thank you. 25 COMMISSIONER STEPHEN GOUDGE: It is
331 Monday morning, I guess. Any chance, Chris of -- 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. Let's -- 5 if you have it, I'll read out the relevant entry for 6 those who don't have it on their screen. These are notes 7 from a S. Sullivan at CAS and they're dated April the 8 26th of 1999, and they reflect, at the outset, some 9 dialogue by telephone with Brenda Waudby whether she can 10 attend Justine's baseball game this -- this summer, and - 11 - and we know from other evidence that Justine was -- was 12 one (1) of Brenda Waudby's other children. 13 And -- and we see, moving down, what CAS 14 has to say about it, and then about the middle of the 15 page it says: 16 "I told mom I have contacted hospital 17 to warn them of mom's bail and not to 18 be left alone with baby. And I cannot 19 answer for..." 20 And I can't read the next word. 21 "...about whether CAS will apprehend 22 baby." 23 COMMISSIONER STEPHEN GOUDGE: Her 24 question about whether CAS will apprehend. 25
341 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: 3 "...I cannot answer her question..." 4 Thank you. 5 "...about whether CAS will apprehend 6 baby, as I need more information from 7 Crown." 8 And just stopping there. We've heard 9 other evidence, or seen it, in the overview report that - 10 - that another child is born -- born to Brenda -- Brenda 11 Waudby on May the 1st of 1999. There it is. And then 12 moving ahead, it says: 13 "Mom states Crown attorney was told on 14 Friday that there is no way she could 15 have caused Jenna's murder, but she's 16 not aware of Crown's position." 17 So just stopping there for a moment. It 18 appears that there's some dialogue that Ms. Waudby's 19 communicating to CAS what has transpired on the -- on the 20 Friday, which would have been April the 23rd, and that's 21 being said in -- in the context of what action the CAS 22 might take in terms of the baby to be born and in terms 23 of access to Justine. 24 Did you have contact with CAS through this 25 period?
351 MR. BRIAN GILKINSON: I don't recall any 2 contact I had with the Children's Aid Society, 3 particularly with respect to this date or before this 4 date. I may have contact with the CAS around the time 5 Brenda entered a plea to child abuse. 6 MR. MARK SANDLER: All right, so let's 7 proceed on in -- in the chronology and see whether it -- 8 whether it assists you. And if we can go to the next 9 page of the notes, and it says: 10 "April the 27th of 1999, phone call 11 Crown Attorney's Office, spoke with 12 secretary, Joyce, who states Brian 13 Gilkinson is on the phone and has 14 someone in his office. Left message 15 with Joyce that CAS needs the Crown's 16 brief. Waudby criminal matter for CWC, 17 re: mom's unborn child." 18 Then you see: 19 "April the 28th of 1999, met with Crown 20 Attorney Brian Gilkinson, to request he 21 provide CAS with Crown brief for 22 purposes of CWC. Brian Gilkinson 23 states he is unable to provide CAS with 24 Crown brief, as he is in the middle of 25 preliminary. Brian G. states he will
361 not be dropping charge on Thursday; 2 that mom is definitely a child abuser, 3 but whether she is a child killer needs 4 to be determined." 5 And then you see at 4:00 p.m., there's a 6 phone call to Officer Lemay to request that he provide 7 the CAS with the Crown brief that the police have, as per 8 a Court order for full disclosure of police records. 9 "Lemay states he needs to speak to 10 Crown first as Crown brief is fourteen 11 (14) volumes; took three (3) months to 12 compose it and will take him at least 13 two (2) weeks to copy it. 14 Dan L. states he will speak to Crown 15 attorney then call CAS lawyer." 16 And then going on to April 30th on the 17 following page, just to give context to the questions 18 that will follow: 19 "A phone call, Dan Lemay stating he 20 doesn't have the time to copy all the 21 volumes of the Crown brief, but is 22 available Wednesday, Thursday, or 23 Friday of next week for the CAS to come 24 to the police station to view the 25 brief."
371 Now just stopping there for a moment in 2 the sequence of events. What, if anything, do you recall 3 about any dialogue that's going on with the CAS over 4 their access to the Crown brief and how it might be used 5 by the CAS in connection with their issues? 6 MR. BRIAN GILKINSON: I don't recall any 7 dialogue at all, but that's not to say it didn't happen. 8 And if somebody had a note that I met with them on the 9 28th of April, I'm sure it -- that meeting occurred. 10 MR. MARK SANDLER: All right. Let me ask 11 you systemically. Here you've got Children's Aid Society 12 that has to make determinations as to its position both 13 in relation to Justine, the child already born, and has 14 to make a determination as to its position and relation 15 to the child born to Brenda Waudby on May the 1st. 16 Would you see the Crown brief as being 17 relevant to the CAS's determination, first of all? 18 MR. BRIAN GILKINSON: Yes. At least, 19 some parts of it. 20 MR. MARK SANDLER: All right. And we see 21 reference to the fact that at least according to the 22 Children's Aid worker who's prepared the notes, that 23 there was some pre-existing order that existed that had 24 been made in the child protection proceedings that -- 25 that the police files be -- be provided to CAS.
381 Do -- do you recall any particulars about 2 that? 3 MR. BRIAN GILKINSON: Well, it was 4 brought to my attention and I don't recall seeing an 5 order, but it rings a bell that there may well have been 6 an order emanating out of that court for the police to 7 share information. 8 Whether or not it was the entire brief, I 9 don't know. But I think there was an order that the 10 police, at least, share information with the Children's 11 Aid Society. 12 MR. MARK SANDLER: Okay. What do you see 13 the appropriate interplay being between the Children's 14 Aid and the Crown attorney's office and the police in -- 15 in cases such as this? 16 MR. BRIAN GILKINSON: Well, if -- if you 17 apprehend, either as a police officer or a Crown or any 18 other professional, that a child may well be in need of 19 protection, you've got a duty to report the circumstances 20 of that concern to the Children's Aid Society under 21 provincial legislation. 22 And -- and quite apart from that, if 23 you're dealing with a situation of child abuse and/or 24 homicide, any information that would assist the CAS in 25 protecting other children, I think is -- is -- it's
391 important that you share that information with the 2 Children's Aid Society. 3 MR. MARK SANDLER: All right. And 4 similarly, if the Crown attorney or the police come into 5 possession of information that is exculpatory; for 6 example, information that would tend to point away 7 against the involvement of the mother either in child 8 abuse or in -- in a killing with which she's charged. Is 9 that appropriate information to be sharing with the CAS 10 as well? 11 MR. BRIAN GILKINSON: Whatever is going 12 to allow the appropriate court, if it's necessary, or the 13 appropriate agency -- in this case the Children's Aid 14 Society -- to make a thorough and informed decision on 15 those issues is important to -- to share. 16 MR. MARK SANDLER: Okay. If we can go 17 back to the -- the overview report, 'cause I want you to 18 have the benefit of several of the things that have been 19 said about -- about this dynamic. 20 And if you look at page 17 of the overview 21 report again. And this is a -- taken from again, 22 Detective Charmley's homicide review that we've eluded to 23 earlier. And it says in his review: 24 "That during the course of the 25 investigation into Jenna's death, CAS
401 was in constant contact with the police 2 wanting information about the police to 3 help them with their investigation. 4 Police investigators took the position 5 that they could not share this 6 information as it would jeopardize a 7 successful conclusion of the police 8 investigation." 9 So stopping here, this identifies, I'd 10 suggest to you, a certain tension that exists, because 11 you've made the point that -- that the materials that are 12 in the possession of the Crown or the police would be 13 relevant to the CAS investigation and in the ordinary 14 course as a matter of public interest should be disclosed 15 to the CAS. 16 On the other hand, if Detective Constable 17 Charmley's recollection is accurate, there -- there -- 18 police investigators, at least at some point, took the 19 position that they could not share the information as it 20 would jeopardize a successful conclusion. 21 What do you say about that -- that tension 22 and how it should be addressed in your view? 23 MR. BRIAN GILKINSON: Well, it -- it's a 24 situation where there are competing interests. The -- 25 the primary interest in -- in all of this, needs to be
411 the protection of -- of children from further harm. But 2 there's also a need to protect an investigation by making 3 sure that information extraneous to the CAS concerns 4 isn't turned over as well. 5 If this is accurate, it's a situation 6 where it was an either all-or-nothing view on both the 7 Children's Aid Society and the part of the police. I 8 don't know if that's the case or not. But certainly 9 there was material that would be germane to the 10 Children's Aid Society concerns that could have been 11 turned over. 12 But there was also material with respect 13 to undercover and police investigative techniques that, 14 quite frankly, should not have been turned over at all. 15 Particularly when we're dealing with Constable Lemay 16 who's still in the middle of an eight (8) month 17 investigation into -- into the homicide. 18 So there needs to be a balance. And there 19 needs to be a better protocol than existed here, for 20 determining whether or not the entire brief should go 21 over or parts of it. And if a court had to pass on that, 22 so be it. But -- 23 COMMISSIONER STEPHEN GOUDGE: Is there 24 any protocol now, Mr. Gilkinson or is it -- 25 MR. BRIAN GILKINSON: I'm not aware of --
421 of it. Sometimes, it's a bit like two solitudes in terms 2 of what Family Court or Child Welfare Court does, as 3 opposed to what a Criminal Court does in -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. BRIAN GILKINSON: -- in domestic 6 violence situations. And -- 7 COMMISSIONER STEPHEN GOUDGE: So you 8 would have nothing, sort of issued by 720 Bay or by the 9 Crown, by the Central Crown, about guidelines for dealing 10 with the CAS in a circumstance like this? 11 MR. BRIAN GILKINSON: Well I'm sure I've 12 -- I'm sure there's policy somewhere with respect to -- 13 to that, but not to -- I don't think to the extent of -- 14 of a protocol for determining what issues or information 15 can legitimately -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. BRIAN GILKINSON: -- be turned over 18 and what information can't. 19 COMMISSIONER STEPHEN GOUDGE: And what 20 needs to be protected for the police investigation. 21 MR. BRIAN GILKINSON: And I stand to be 22 corrected, because I'm not going to profess 100 percent 23 knowledge of the Crown Policy Manual. I -- I just can't. 24 25 CONTINUED BY MR. MARK SANDLER:
431 MR. MARK SANDLER: Nobody heard you say 2 that so don't worry about it. 3 MR. BRIAN GILKINSON: I know. I know. 4 COMMISSIONER STEPHEN GOUDGE: Well, you 5 just described it as a better protocol which made me 6 think there might be one already. 7 MR. BRIAN GILKINSON: Well, certainly if 8 a court says, "Thou shall turn over the entire brief", 9 the subject of that order needs to comply or needs to 10 bring an application for review or appeal. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MR. BRIAN GILKINSON: And however you do 13 that, it would nice if, right off the bat, the police, 14 who are the subject of the Child Welfare Court order, 15 were brought in as a party to that -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. BRIAN GILKINSON: -- and able to be 18 heard. Maybe they were, maybe they weren't. It's going 19 beyond my limited expertise to -- to really answer those 20 questions. But I think it's important to balance 21 interests. And there -- and it's important to know that 22 the welfare of the child is the most important when we're 23 talking about lives of vulner -- vulnerable people. 24 But that having been said, there was -- 25 there was a lot that was going on in that police
441 investigation you wouldn't want shared with anyone else. 2 3 CONTINUED BY MR. MARK SANDLER 4 MR. MARK SANDLER: Okay. All right. If 5 we can proceed on in the -- in the chronology, and I'll 6 take you back to Tab 18, if I may, PFP3000110,at page 1. 7 And you find that again, within Tab 18 about four (4) 8 pages in. And I'm just trying to proceed through, Mr. 9 Gilkinson, chronologically with the documents as we have 10 them. 11 MR. BRIAN GILKINSON: Mm-hmm. 12 MR. MARK SANDLER: And this is another 13 note from Children's Aid Society as of May the 6th of 14 1999: 15 "Attended Peterborough police station. 16 Met with Constable Lemay to review 17 evidence for criminal investigation. 18 Affidavit was prepared based upon 19 interview, information, viewing of 20 autopsy photographs and videotape. 21 Caution statement from Brenda Waudby." 22 So it would appear as of May the 6th, some 23 information, at the very least, was being shared as a 24 result of a meeting with Officer Lemay. 25 And then we see on the following day,
451 300011, at page 1, as of May the 7th, 2 "Addendum to BB note re...." 3 MR. BRIAN GILKINSON: Telephone Call? 4 MR. MARK SANDLER: 5 "...telephone call and Dr. Charles 6 Smith. When Dr. Smith was advised that 7 there is a possibility of [And this is 8 the child's name] returning home, he 9 replied, 'Well, I guess I'll be doing 10 his autopsy, too.' 11 He also commented upon Jenna's small 12 size and expressed his concern 13 regarding her being a failure-to-thrive 14 child." 15 And just stopping there for a moment. 16 Were you aware that as of May the 7th of 1999, Dr. Smith 17 had expressed that view, in those words, to Children's 18 Aid? 19 MR. BRIAN GILKINSON: No, I was not. 20 MR. MARK SANDLER: Does that raise any 21 issues for you? 22 MR. BRIAN GILKINSON: I really can't 23 comment on -- on Dr. Smith's communication with 24 Children's Aid Society. I think Dr. Smith appeared to 25 accept, as of April the 23rd in the meeting with Dr. Ein,
461 that Brenda Waudby could not have caused the death of her 2 child. 3 I can see where the issue of child abuse 4 was still a live one, particularly given Brenda's 5 statement to the police that was alluded to on the 6 previous page. 7 I don't know anything about failure-to- 8 thrive, and I -- I'm not aware that that was ever a 9 comment that was made to Constable Kirkland at post- 10 mortem or to the investigating officers at any other 11 time. 12 MR. MARK SANDLER: Okay. If I might move 13 back to the overview report at page 59, at Tab 1. We see 14 that: 15 "On May the 10th of 1999, Detective 16 Constable Lemay, Sergeant McNevan, 17 Constable Donaldson and Mr. Gilkinson 18 attended at the OCCO in Toronto to meet 19 with Dr. Clark and Dr. Bonita Porter, 20 the Deputy Chief Coroner of Inquest, to 21 discuss the case. And Dr. Porter 22 agreed to obtain a further consultation 23 about the medical issues involved." 24 And again, that's a reference to the 25 consultation that you described earlier on in your
471 testimony to the Commissioner? 2 MR. BRIAN GILKINSON: Yes. 3 MR. MARK SANDLER: And if you can turn to 4 the following page, page 60, we see at paragraph 98 that 5 on May the 26th of 1999, which is several weeks later, 6 Dr. Porter writes to you. She concludes: 7 "That the time between the injuries 8 sustained by Jenna on her death had to 9 be less than six (6) hours. There may 10 be different opinions from pathologists 11 given differing experiences with 12 pediatric trauma cases as to how much 13 less, but I think all have agreed that 14 certainly not more than six (6) hours. 15 As you have correctly stated, the 16 interests of justice demand the best 17 possible opinions be sought. 18 Medicolegal examinations and 19 investigations are performed by 20 forensic specialists; pathologists are 21 included in this group. By remaining 22 cognizant of the limits of his or her 23 expertise, the pathologist can avoid a 24 potential situation where their well- 25 meaning but nonetheless speculative
481 comments are given more weight than 2 they deserve in a judicial proceeding. 3 The pathologist may be asked or 4 attempted to give an opinion as 5 physicians about other specialities, 6 i.e., toxicology or clinical practice. 7 The prudent course would be to defer 8 those questions to persons whose 9 expertise lie in the areas of 10 toxicology or active medical practice. 11 In cases such as this, there may be no 12 clear-cut answer that can narrow the 13 timing to other than a few hours with a 14 range based on all available and 15 reliable information. 16 I believe it would be reasonable to 17 conclude that the injury that caused 18 Jenna's death occurred less than six 19 (6) hours before she became lifeless in 20 the care of the babysitter. 21 Based on the opinion of the pathologist 22 and on all of the information available 23 to me, I cannot give an opinion as to 24 how much less than six (6) hours." 25 And again, did you regard that to be
491 responsive to the inquiry that you had put to the Chief 2 Coroner's Office and Dr. Porter? 3 MR. BRIAN GILKINSON: Well, certainly the 4 information with respect to the timing. I wanted the 5 Chief Coroner's Office to -- to consult and give me their 6 best estimate with respect to the time and Dr. Porter did 7 that. And she indicated elsewhere in this correspondence 8 that she did consult with a pathologist with respect to 9 this opinion. 10 So it was responsive, you know, on the 11 issue of timing, and I was satisfied with it. 12 MR. MARK SANDLER: Okay. And we actually 13 see that at paragraph 99 on page 61, you meet with 14 Detective Constable Lemay. 15 You advise Lemay of your conversation with 16 Dr. Porter and you reflect -- or at least the police 17 notes reflect that you also stated that you would be 18 withdrawing the charge against Ms. Waudby pending further 19 evidence, and does that accurately reflect what it was 20 that you told Detective Constable Lemay at that point in 21 time? 22 MR. BRIAN GILKINSON: It does. 23 MR. MARK SANDLER: And how certain was it 24 that the charges were going to be withdrawn against Ms. 25 Waudby as of May the 28th of 1999?
501 MR. BRIAN GILKINSON: No, I was certain I 2 was going to do that. 3 MR. MARK SANDLER: Okay. Now one (1) of 4 the issues that -- that has been raised by counsel for 5 Ms. Waudby is -- is whether or not the Crown's Office 6 should have proceeded promptly to ensure that that 7 message was communicated to Children's Aid Society so 8 that the Family Court Judges on that side of the issue 9 were -- were alive to that position at the earliest 10 possible opportunity. 11 What do you say about that? 12 MR. BRIAN GILKINSON: I can't remember 13 when it was communicated to the Children's Aid Society. 14 I know I did have discussions, as I've alluded to before, 15 with a member of the co -- of the Children's Aid Society, 16 but I can't tell you when that occurred. 17 MR. MARK SANDLER: Systemically, it -- 18 leaving aside whether it was communicated in a prompt way 19 or -- or not, wou -- would you agree that -- that it -- 20 that's an appropriate communication that should come from 21 the Crown Attorney's Office if it's known that -- that 22 the Children's Aid Society is basing their position in 23 part upon the status of a homicide case and it's going to 24 be withdrawn? 25 MR. BRIAN GILKINSON: Absolutely, but
511 whether or not Children's Aid Society would be the first 2 agency I communicate with, no. My first obligation, I 3 think, is to talk to Mr. Hauraney in this situation and 4 explain the situation to him. 5 He knew that we were getting further 6 opinion from the Office of the Chief Coroner, whether it 7 was by way of courtesy or by way of asking the Chief 8 Coroner's Office to take their own steps to confirm the 9 accuracy of what Dr. Ein had to say as the strongest of 10 Mr. Hauraney's experts. 11 MR. MARK SANDLER: Okay. 12 MR. BRIAN GILKINSON: So I would have 13 gone to Mr. Hauraney first. I would have sat down and 14 discussed the case with him and thereafter, communicated 15 to other agencies, but I can't tell you when I spoke with 16 the Children's Aid Society. 17 I can't even tell you now whether or not I 18 initiated that con -- that conversation or if they called 19 my office. I can't tell you if the police did anything 20 with the information, either. 21 MR. MARK SANDLER: Fair enough. 22 COMMISSIONER STEPHEN GOUDGE: Did you 23 ever learn from Mr. Hauraney whether he had supplied the 24 information he had obtained from Dr. Ein and others to 25 the CAS?
521 MR. BRIAN GILKINSON: Well, he was 2 representing Ms. Waudby. I -- I can't be sure of that, 3 but I would have thought that he would be intimately 4 involved with her issues with the Child Welfare Court. 5 I know that Laird Meneley was acting for 6 Brenda Waudby with respect to some family law issues. 7 And the level of communication between Mr. Hauraney and 8 Mr. Meneley seemed to be a bit of a concern when I 9 started getting copies of opinions from Dr. Finkel, for 10 instance, from -- from Laird Meneley that I would have 11 thought he would have known I'd had because Mr. Hauraney 12 was sharing them with me. 13 So, it was at the time I started getting 14 some communication from Mr. Meneley, I was starting to 15 wonder about the level of communication between Mr. 16 Hauraney and Mr. Meneley on -- on the same client, so I 17 ca -- I really can't help beyond that. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Okay. Now we actually 21 see some reference to -- to the interchange between Mr. 22 Meneley and Mr. Hauraney at Tab 20, which I'll take you 23 to because there's been some reference to it. 24 I'm sorry, if I can go to Tab 19 first, 25 and this is PFP160829, and this is Mr. Meneley writing to
531 Mr. Hauraney as of May 18th, and he says: 2 "I feel that my client's case with the 3 CAS would be assisted if there were 4 bail changes or bail review of her 5 current bail terms, and particularly 6 those terms that require her to live 7 with her parents and not to be alone 8 with anyone younger than 16 years of 9 age. Is this possible? If it's 10 possible, can it be done prior to June 11 9th? I feel that the Crown attorney 12 and the CAS worker in this matter are 13 collaborating closely, and this may be 14 the reason why the charges have not 15 been withdrawn. In other CAS files 16 that I have been involved with, the 17 Crown Attorney has not withdrawn 18 unsubstantiated charges in order to 19 have the bail terms assist the CAS with 20 their case. Through disclosure, I have 21 found that the social worker in this 22 matter has been speaking on the 23 telephone with Detective Lemay and Mr. 24 Gilkinson on a regular basis and at 25 least two (2) to three (3) times per
541 month. Please advise me on the above." 2 What comments would you make about what 3 Mr. Meneley is suggesting in this letter? 4 MR. BRIAN GILKINSON: I don't recall 5 having any close or regular communication with the 6 Children's Aid Society. There may have been some 7 communication between the Children's Aid Society and the 8 police that was on a regular basis -- on a close basis -- 9 but not with -- with me as the Crown with carriage of 10 this case. 11 And with respect to the comment and other 12 CAS files: 13 "The -- the Crown has not withdrawn 14 unsubstantiated charges in order to 15 have bail terms assist." 16 I think that's ludicrous. If we don't 17 have a reasonable prospect of conviction in a case, that 18 case gets withdrawn. 19 Now, the timing in this particular case 20 depended on giving the Office of the Chief Coroner an 21 opportunity to address head-on the opinion of Dr. Ein and 22 to get back to us with respect to that. After that, the 23 timing of the withdrawal depended on when we actually had 24 time -- trial time or appearance time -- in the Superior 25 Court in Peterborough.
551 And it's not a court that continually sits 2 in a jurisdiction our size. So we have to go to the 3 trial coordinator and basically find out when a justice 4 is available to address this case. 5 MR. MARK SANDLER: All right. So what I 6 take from your comment is that the timing of the 7 withdrawal wasn't -- wasn't geared in any way to address 8 anything that was happening on the CAS side, at least as 9 far as you were concerned? 10 MR. BRIAN GILKINSON: No, and quite 11 frankly, in terms of where Ms. Waudby was at with respect 12 to her visitation access or otherwise, with respect to 13 her children, I wouldn't be able to tell you. I may have 14 known at the time, but it wasn't large factor in -- in 15 what I did at all. 16 MR. MARK SANDLER: Okay. And -- 17 COMMISSIONER STEPHEN GOUDGE: Mr. 18 Gilkinson, what was your sense of why it was important to 19 give the OCCO, the Chief Coroner's Office, a chance to 20 respond head-on to the timing question? 21 MR. BRIAN GILKINSON: Well, they had 22 essentially -- is -- they're essentially the resource 23 that police and Crown go to with respect to getting 24 opinion on -- on cases to assist police in investigating 25 and hopefully the Crown in -- in prosecuting cases.
561 The one (1) expert that -- that we did 2 have to assist us was Dr. -- Dr. Smith. Dr. Smith's 3 evidence -- or Dr. Smith's position on April the 23rd was 4 materially different than it was -- 5 COMMISSIONER STEPHEN GOUDGE: Right, 6 right. 7 MR. BRIAN GILKINSON: -- at any earlier 8 point. And -- 9 COMMISSIONER STEPHEN GOUDGE: So your 10 sense was in a sense the Chief Coroner's Office was 11 responsible for providing Dr. Smith's opinion in the 12 first place? 13 MR. BRIAN GILKINSON: And they may well 14 need to be able to examine Dr. Smith's present situation 15 and determine whether or not there's any further evidence 16 they could give the Crown to assist in the issue of 17 whether or not it -- we should be withdrawing charges 18 against Brenda Waudby or looking at something entirely 19 different. 20 COMMISSIONER STEPHEN GOUDGE: Okay. But 21 I take it your sense was that Dr. Smith comes to you, 22 sort of, as an agent of the OCCO? 23 MR. BRIAN GILKINSON: That's the view I 24 took of it -- 25 COMMISSIONER STEPHEN GOUDGE: Right.
571 MR. BRIAN GILKINSON: -- from -- it's -- 2 it's through their auspices that we were able to consult 3 and get opinion from Dr. Smith. And I wanted -- it's 4 even common courtesy -- if you can term it that -- I 5 wanted the OCCO to -- excuse me, the Office of the Chief 6 Coroner -- not supposed to use acronyms -- but I wanted 7 them to have the opportunity to examined what's gone on 8 with respect to the medical opinion and comment on it. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. BRIAN GILKINSON: If there's anything 11 that I missed, if there's anything that Dr. Ein or Dr. 12 Finkel missed that they want to bring to my attention, 13 that's fine, but I wanted to -- you know, I was -- I was 14 motivated to do that in the same way I was motivated to 15 give Dr. Ein, I guess, the obvious impression that I was 16 looking for any angle to implicate Brenda Waudby. 17 I was just looking for a clear and safe 18 foundation to withdraw these charges, if that's what 19 should happen. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 Thanks. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: If we can go back to 25 the overview report, if we may, and I apologize I'm
581 making you jump around in the document binder. 2 MR. BRIAN GILKINSON: No, that -- that's 3 fine. 4 MR. MARK SANDLER: So Tab 1, page 61, 5 paragraph 100. And proceeding through on the chronology, 6 we see that on June the 11th of 1999, Ms. Waudby pleads 7 guilty to a charge of child abuse under Section 79 of the 8 Child and Family Services Act in relation to the incident 9 that occurred two (2) days prior to Jenna's death. 10 And you read in the following facts on the 11 plea. And I'm just going to take you to several of them. 12 You've reflected that: 13 "It was determined by expert 14 examination of the body of Jenna that 15 in fact this child had sustained abuse 16 pre-dating the time period over which 17 injuries, which in fact caused the 18 child's death, would have occurred. 19 In particular, post-mortem examination 20 revealed old rib or head injuries that 21 would have occurred during the 22 timeframe set out in the particular 23 Information and would have been 24 unrelated to those injuries that the 25 child sustained that actually caused
591 her death." 2 And then if one goes to the top of the 3 following page, page 62: 4 "That is the factual foundation upon 5 which Ms. Waudby enters a plea of 6 guilty today. And as I said, it is 7 clearly unrelated to those injuries 8 that will be still be under 9 investigation but -- apparently 10 happened to Jenna that occurred on or 11 about January 20th/21st of 1997." 12 So could you advise the Commissioner of 13 what your thinking was in negotiating and accepting this 14 plea from Ms. Waudby to this particular charge. 15 MR. BRIAN GILKINSON: Okay. If I can 16 just clarify one (1) thing, Mr. Sandler -- 17 MR. MARK SANDLER: Sure. 18 MR. BRIAN GILKINSON: -- the post-mortem 19 examination revealed old rib/head injuries. We're not 20 talking about head injuries to Jenna's head, we're 21 talking about rib head being a part of the rib. 22 MR. MARK SANDLER: Right. 23 MR. BRIAN GILKINSON: So I don't think 24 there should be a slash between that and -- we're just 25 talking about rib injuries here at the head of the rib.
601 So I just wanted to clarify that. 2 MR. MARK SANDLER: Thank you. 3 MR. BRIAN GILKINSON: With respect to my 4 thinking in terms of the plea that Ms. Waudby entered to 5 child abuse under the Child and Family Services Act -- 6 and that is the question? 7 MR. MARK SANDLER: It is. 8 MR. BRIAN GILKINSON: Okay. Well, I met 9 with Mr. Hauraney and clearly in conversation with him, I 10 took the position that the Crown's case on the homicide 11 was untenable and there was no reasonable prospect of 12 conviction in my mind with respect to the opinion we had 13 as it presently existed. 14 But it was clear from the meeting with Dr. 15 Ein that the rib head injuries being old in Dr. Smith's 16 opinion was not something Dr. Ein would disagree with at 17 all. And we did have the evidence of Ms. Waudby's 18 statement to the police, statement to the undercover 19 officer, and some of the other comments that she made 20 that seemed to implicate her with respect to child abuse, 21 quite apart from what happened on the evening of January 22 the 21st. 23 I indicated that I had no interest in 24 prosecuting Ms. Waudby in a criminal court with respect 25 to that abuse. She had already been put through enough
611 in terms of the homicide that had -- charge that had been 2 occupying her since September of 1997. 3 I did indicate though I did want to have a 4 plea under the Child and Family Services Act to ensure 5 that the Children's Aid Society did have a basis upon 6 which to closely scrutinize her interaction with her 7 other children. I was aware at one (1) point that she 8 was pregnant with yet another individual; that individual 9 was an infant at this point in time. 10 And I just wanted to make sure that going 11 forward knowing that she apparently, on -- on a lot of 12 opinion, had been guilty of child abuse, that it was 13 established in the court, even on a provincial offence, 14 so that the Children's Aid Society would have -- have an 15 ability to supervise her care of the other children if, 16 in fact, they were entrusted to her care going forward. 17 MR. MARK SANDLER: And -- and did you see 18 that as a decision that was in the public interest, 19 having regard to what you knew about the case? 20 MR. BRIAN GILKINSON: Certainly. 21 MR. MARK SANDLER: All right. And then 22 we see that on June the 15th of 1999, at page 62, you did 23 withdraw the second-degree murder charge against Ms. 24 Waudby, reflecting that -- that there was no reasonable 25 prospect of conviction. And you stated in asking that
621 the charge be withdrawn: 2 "That the prosecution was relying on 3 certain medical opinion evidence that 4 has shifted dramatically." 5 And I'm going to ask you about those -- 6 those words because some issue has been taken with 7 whether or not the medical evidence had indeed shifted 8 dramatically. 9 What do you say about it? Had it? 10 MR. BRIAN GILKINSON: I wouldn't have 11 said if it -- if I didn't think it was true. 12 It had shifted dramatically in that we've 13 gone from a situation where those injuries could well 14 have occurred on Brenda Waudby's watch. Notwithstanding 15 that Dr. Smith said it could have occurred -- you know, 16 some of the injuries could have occurred within the eight 17 (8) hour period that the babysitter had the child to a 18 situation where we were well within the period of time 19 only the babysitter had care of the child, vis-a-vis Ms. 20 Waudby. 21 So to that extent I thought it had shifted 22 dramatically and -- and it was very clear on April the 23 23rd in Dr. Ein's office, that Dr. Smith had abdicated 24 what he'd said in that preliminary hearing transcript 25 about every time estimate that put the possibility on Ms.
631 Waudby's watch. 2 MR. MARK SANDLER: Okay. If we can move 3 ahead to page 64 of the overview report, and at paragraph 4 106 it appears that on June the 22nd -- and this is after 5 the charges have been withdrawn by the prosecution 6 against Ms. Waudby -- Mr. Meneley sends a letter to Dr. 7 Porter reflecting that he's acting for Ms. Waudby in the 8 Child and Family Services Act matter. He says: 9 "I understand that you've had some 10 discussions with Mr. Brian Gilkinson 11 who's a Crown attorney for the County 12 of Peterborough in this matter. Please 13 find enclosed for your records and 14 information a release of medical 15 information signed by Ms. Waudby." 16 And then he reflects that he understands 17 that: 18 "She has expressed some opinions to Mr. 19 Gilkinson concerning the death of 20 Jenna. I would appreciate it if you'd 21 send me a copy of any report that you 22 have prepared." 23 And then we see at paragraph 107, that on 24 June the 25th Dr. Porter sent a letter to Mr. Meneley 25 replying to his letter and saying:
641 "The document you described in your 2 letter was prepared for Mr. Gilkinson, 3 Crown attorney in this matter. I must 4 refer you to him for release of my 5 correspondence." 6 Then we see on June the 28th, three (3) 7 days later, a fax sent from Dr. Porter's office to Mr. 8 Meneley. The fax cover page states: 9 "The faxed copy of letter dated June 10 25th is being sent to you by ordinary 11 mail." 12 There's also a handwritten note on the fax 13 cover page which states: 14 "Note to file, June 28th. Angie at Mr. 15 Meneley's office confirms receipt of 16 fax and indicates the Crown hasn't been 17 cooperative in giving the information." 18 Just stopping there for a moment. Do you 19 know anything about -- about this issue or the Crown's 20 response to Mr. Meneley's inquiries to secure Dr. 21 Porter's opinion letter? 22 MR. BRIAN GILKINSON: No, I don't. And I 23 don't think I ever had a conversation with Mr. Meneley. 24 MR. MARK SANDLER: All right. Had this 25 matter come to your attention, namely that Mr. Meneley
651 was seeking release of the report, and that he had Ms. 2 Waudby's release, would you have had any difficulty 3 turning it over to him? 4 MR. BRIAN GILKINSON: Well I wouldn't -- 5 it wouldn't matter. Ms. Waudby's release was really 6 irrelevant. I'm more than happy to share the opinion Dr. 7 Porter gave me, but quite frankly I viewed -- I -- I 8 thought that he had better opinion in any event, with 9 respect to the materials that he would have received from 10 Mr. Hauraney, from Dr. Ein, Dr. Finkel and -- and that 11 sort of thing. 12 Dr. Porter was a medical doctor basically 13 who indicated in her correspondence of May the 26th, that 14 she consulted with a pathologist. But she didn't vary in 15 any way from -- from the opinion given by -- by qualified 16 people on the issue. 17 MR. MARK SANDLER: Okay. 18 MR. BRIAN GILKINSON: But I don't think 19 Dr. -- well I -- I know Mr. Meneley did not speak to me 20 or contact me. I remember being -- I'm sorry to go on, 21 but I remember being confused, as I said, when he started 22 sending me things, like Dr. Finkel's report, and 23 wondering, why is he sending me these things when Mr. 24 Hauraney obviously would have indicated to him that I 25 already had those -- those reports.
661 MR. MARK SANDLER: Okay. And then if 2 you'd move to page 69, we see that Mr. Meneley later 3 pressed on Ms. Waudby's behalf for a public inquiry to be 4 held into the matter. And he wrote a fairly lengthy 5 letter to the Premiere and others stating the grounds for 6 a public inquiry. 7 And if you'd look at page 70 of the 8 overview report, he's listing questions that -- that in 9 his view ought to be addressed as arising out of this 10 case and question 4 is: 11 "What is the appropriate function and 12 role for a Children's Aid Society when 13 a child dies when subject to an order 14 under the Child and Family Services 15 Act? Should a Children's Aid Society 16 undertake a separate investigatory 17 function in infant homicides as called 18 for in the Child and Family Services 19 Act, or should a Society become 20 completely reliant on the police 21 investigation in these instances?" 22 And just stopping there for a moment. Do 23 you have any views as to the extent to which Children's 24 Aid Society should undertake a separate investigatory 25 function or -- or rely upon the police investigation
671 that's underway? 2 MR. BRIAN GILKINSON: I don't know what 3 the extent of the Children's Aid Society investigatory 4 function is mandated by the Child and Family Services 5 Act. I don't know what that entails. 6 But I know that there's a disconnect 7 between a suggestion that we really -- that rural 8 services may not have the expertise to conduct these 9 investigations. And that's what he mentions in paragraph 10 2 as a concern and a suggestion that Children's Aid may 11 be able to accomplish that purpose on its own or should 12 it be reliant on the police investigation. 13 I think there needs to be a liaison 14 between the two (2) agencies. There needs to be free 15 flow of information from the police to the Children's Aid 16 Society on matters that bear directly on the Children's 17 Aid Society concern for protection of the child. 18 That having been said, I don't know that 19 the Children's Aid Society needs to have any more 20 information from the police investigation than -- than 21 that. 22 MR. MARK SANDLER: Okay. And I should 23 say, Commissioner, we're going to revisit this issue with 24 Dr. Eden on Friday of this week who -- who speaks to some 25 of the protocols that exist for our Children's Aid, and
681 the Coroner's Office, and the investigative side in -- in 2 the Hamilton area. 3 Item 5: 4 "Should a Crown Attorney ever be 5 allowed to use procedural and systemic 6 delay as a lever in plea bargain 7 negotiations? Should a Crown Attorney 8 be allowed to use and rely on bail 9 terms prohibiting contact with one's 10 children as a bargaining chip to 11 procure a guilty plea to an unrelated 12 offence?" 13 And I feel obliged to ask you because he's 14 raised the issues, did you see any of that happening in 15 this particular case? 16 MR. BRIAN GILKINSON: No. 17 MR. MARK SANDLER: Okay. Now, if we can 18 move from there to paragraph 124 of the overview report, 19 and I'm going to ask you a little bit about another 20 feature of this case that the Commissioner has heard 21 quite a bit about, and that is some of the investigative 22 work surrounding the -- the hair. 23 You know what I mean when I'm referring to 24 the hair? 25 MR. BRIAN GILKINSON: I do.
691 MR. MARK SANDLER: We know from paragraph 2 124 and the Commissioner has heard that Detective 3 Constable Charmley was assigned to review the prior 4 investigation that had taken place in July of 2001, and 5 we've heard from him that one (1) of the issues that was 6 brought to his attention by Mr. Hauraney was that a hair 7 noted in Jenna's vaginal hair by Dr. Friesen at the 8 hospital appeared to be missing. 9 And there was some reference to the fact 10 that ultimately Detective Constable Charmley secured a 11 hair from Dr. Smith that was identified, described, in 12 the packet as a hair from the pubic area and which 13 Detective Constable Charmley described as a curly dark 14 hair. 15 Now, you had occasion to review the 16 preliminary inquiry, as you've already described, and as 17 Crown -- as a Crown counsel, had Dr. Smith been in 18 possession at the preliminary inquiry of an exhibit taken 19 at the autopsy labelled "hair from the pubic area" would 20 you have expected him to disclose that to Crown counsel 21 and/or to the Court at the preliminary inquiry? 22 MR. BRIAN GILKINSON: Yes. 23 MR. MARK SANDLER: And would your answer 24 be different if you knew that Dr. Smith believed that the 25 hair was a contaminant trunk hair, which he did not
701 believe to be pubic in origin? 2 MR. BRIAN GILKINSON: Well, I wonder why 3 he brought it to the preliminary inquiry, as he asserted, 4 if he didn't think it was relevant to something. 5 MR. MARK SANDLER: All right. And if you 6 go to paragraph 132 we see that on October the 5th of 7 2001 Dr. Smith called Detective Constable Charmley in 8 response to a message from the police officer. 9 "Charmley asked Dr. Smith about the 10 hair found. Dr. Smith advised that he 11 did not -- that he did recall it, that 12 he had seized the hair -- he described 13 it as a fibre -- that the police did 14 not feel it was pertinent to seize, so 15 he kept it in his files. He believed 16 he still had the item. 17 Dr. Smith further advised that he was 18 surprised the police relied so heavily 19 on the medical evidence when it would 20 be the police investigation that would 21 solve the case. Dr. Smith advised he 22 was upset when he heard it was reported 23 that there was a change in medical 24 opinion. He indicated that he was 25 working with different information than
711 those who reviewed the entire case. He 2 explained that his area of expertise 3 was in the post-mortem body and not the 4 living child. He still stood behind 5 his extended timelines of when Jenna 6 could possibly have received her 7 injuries, but felt that the police 8 should not have relied so heavily on 9 his opinion, given other evidence of 10 Jenna's behaviour prior to her death." 11 Any comment upon that, if it's accurately 12 reported by Detective Constable Charmley? 13 MR. BRIAN GILKINSON: Well, it appears 14 that Dr. Smith is taking or reverting to a position that 15 he advocated in the meeting on April the 23rd, 1999 in 16 Dr. Ein's office. He was very clear that he agreed with 17 Dr. Ein's opinion that these fatal injuries were only 18 sustained within a few hours of the child's death and 19 would not have happened on Brenda Waudby's period of 20 caring for the child. 21 With respect to the hair and the fact that 22 he recalled it and then actually seized it, I believe his 23 evidence at the preliminary hearing was that he did not 24 recall the hair at all, and then on yet another occasion 25 he indicated he had it with him at the preliminary
721 hearing and in fact discussed it with Mr. Hauraney. 2 MR. MARK SANDLER: All right. And what 3 was your fist awareness of the hair issue, so to speak? 4 MR. BRIAN GILKINSON: Well, I was aware 5 of the hair issue early on when Consta -- Constable LeMay 6 and Sergeant McNeven were -- were involved in the 7 original investigation, but I forgot about it because 8 later on during -- now, Sergeant Charmley's review, I 9 asked him, I said, Was there ever any mention of this 10 hair in the original brief? 11 Our office was a very small office in the 12 courthouse, and we would give our completed briefs back 13 to the police just because we didn't have the room to -- 14 to store them. And I remember asking Constable Charmley 15 then to come and -- and get the brief, but hang on to it 16 because obviously we may not have seen the end of this 17 whole situation. 18 So I remember asking Constable Charmley, 19 later on in '01 or '02, was there ever any mention of 20 this hair when I started hearing -- seeing report in the 21 press or whatever, and then I remembered talking to 22 Constable LeMay, and he indicated it was his information 23 that there was some genetic defect that did not allow JD 24 to grow pubic hair. 25 And that was the basis on which it had
731 apparently been discounted by the police as being a -- a 2 factor. 3 MR. MARK SANDLER: Okay. And we see that 4 the conversation that you had with Detective Constable 5 Charmley is reflected at page 82 of the overview report, 6 paragraph 151, as having taken place on March the 15th of 7 2002. 8 MR. BRIAN GILKINSON: Yes. Yes, that's 9 correct. 10 MR. MARK SANDLER: And then jumping ahead 11 in time and -- to page 84 of the overview report, we see 12 that you participated in a meeting on April the 11th of 13 2002 with a variety of individuals including Dr. Cairns 14 and the director of the CFS, Ray Prime, at the 15 Peterborough Police Station. 16 What was the purpose of that meeting, why 17 were you there, and -- and what did you take from it? 18 MR. BRIAN GILKINSON: I think the meeting 19 was -- the hair discovery was the first significant event 20 on the review if we were talking about new evidence that 21 might assist in -- in resolving who committed the crime. 22 So I think at that point in time it was determined by the 23 police and the Coroner's Office to try and get everyone 24 together. I was notified of the meeting and I indicated 25 I would attend.
741 The hair was primarily discussed and what 2 evidentiary -- or what investigatory steps should be 3 taken with respect to it. In the same time, Dr. Cairns 4 basically gave us an overview of his dealings with -- 5 with Dr. Smith, Dr. Smith's information, and what 6 position he was taking with respect to -- to his 7 interaction with Dr. Smith as well. 8 But primarily, it was determined that the 9 hair merited further examination, that the CFS could -- 10 or the Centre of Forensic Sciences could not do 11 mitochondrial DNA analysis and that it would have to go 12 to another lab. 13 MR. MARK SANDLER: Okay. Now moving 14 ahead in time that -- if I can take you to page 87. We 15 see at paragraph 167 that in November of 2002, you sent 16 an email to Ms. Rita Zaied who was Crown counsel on the 17 Kporwodu and Veno prosecution. 18 And -- and I'm not going to take you 19 through -- through the content of -- of this email, but 20 I take it this was in response to an inquiry that had 21 been made through -- through the Ministry about Dr. Smith 22 and any information in possession of Crown counsel? 23 MR. BRIAN GILKINSON: Yes. 24 MR. MARK SANDLER: And -- and did you 25 provide to Ms. Zaied the background as you understood it
751 as to Dr. Smith's involvement in your prosecution? 2 MR. BRIAN GILKINSON: I did. I was 3 inaccurate in terms of the time of pronouncement; I had 4 one (1) -- it was 1:50 a.m. and I've said 1:15 in the 5 email. 6 MR. MARK SANDLER: All right. 7 MR. BRIAN GILKINSON: But I think it's 8 fairly accurate other than that. 9 MR. MARK SANDLER: Okay. Now, at 10 paragraph 172, page 92, we see that Dr. Pollanen was 11 asked to conduct a review of the forensic pathology in 12 the case of Jenna. And that on the following page, page 13 93, it would appear that you attended a meeting on June 14 the 22nd of 2004 at which time Dr. Pollanen's opinion was 15 reviewed with all of the participants, including you. 16 Am I right? 17 MR. BRIAN GILKINSON: Correct. 18 MR. MARK SANDLER: And -- and I'm not 19 going to take you through all of the aspects of that 20 meeting which are summarized by Detective Constable 21 Charmley. 22 Have you read Detective Constable 23 Charmley's summary of what transpired during that 24 meeting? 25 MR. BRIAN GILKINSON: I have.
761 MR. MARK SANDLER: And does it accurately 2 set that out? 3 MR. BRIAN GILKINSON: It does. 4 MR. MARK SANDLER: And -- and how did Dr. 5 Pollanen's opinion weigh in on the issues that you had 6 earlier evaluated. Did it change anything? 7 Did it reinforce anything, or how did it 8 impact upon you, if at all? 9 MR. BRIAN GILKINSON: Well, Dr. Pollanen 10 clearly confirmed the opinion that the injuries occurred 11 within the timeframe that the babysitter had Jenna in her 12 care. 13 I was interested in noting his comments 14 with respect to the laceration of the -- of the liver and 15 whether or not that could have predated -- or some of 16 those injuries to the liver could have predated the fatal 17 injuries that caused her death on January the 22nd. 18 MR. MARK SANDLER: All right. 19 MR. BRIAN GILKINSON: I think that was 20 the first meeting at which we realized that there were -- 21 or that I realized there was apparently some bruising in 22 the form of a bite to the right knee area of Jenna, and I 23 don't recall being aware of that before that meeting. 24 MR. MARK SANDLER: Okay. 25 And then if I can take you to page 101,
771 paragraph 193. We see that on February the 17th of 2005, 2 Detective Constable Charmley receives an email from you 3 stating that your office: 4 "...would not prosecute anyone charged 5 because it appears the evidence will 6 never be definitive enough to mount a 7 prosecution against anyone absent 8 someone entering the station and 9 insisting on giving a full, 10 independently verifiable voluntary 11 confession. Bottomline -- JD...." 12 And I think that shouldn't be "JD's 13 mother." 14 "...Jenna's mother and the sitter are 15 logical suspects but this case is so 16 fraught with evidentiary..." 17 Or sorry: 18 "...JD.'s mother and the sitter are 19 logical suspects but this case is so 20 fraught with evidentiary issues that 21 reasonable and probable grounds for 22 anyone's arrest does not appear to 23 exist." 24 And did that represent your state of mind 25 as of February of 2005?
781 MR. BRIAN GILKINSON: It did. 2 MR. MARK SANDLER: And -- and did the 3 circumstances change in that regard? 4 MR. BRIAN GILKINSON: They did. 5 MR. MARK SANDLER: And just very briefly, 6 how did the circumstances change and what did you do 7 about them? 8 MR. BRIAN GILKINSON: Well, there were a 9 number of consultations by the Office of the Chief 10 Coroner and the police with respect to other recognized 11 experts on the issue of timing. Timing was still kind of 12 an amorphous sort of thing; in terms of we could 13 anticipate problems if we -- if we took a case to trial 14 simply on the basis of medical opinion because there may 15 well have been an ability to push some of the opinion we 16 did have to the outer limits of the babysitter's control 17 over the child. 18 We still had an issue where the babysitter 19 didn't necessarily have exclusive opportunity. And I 20 indicated to -- to Constable Charmley that absent an iron 21 clad confession by someone, it's not likely that we would 22 have -- we would have a case that would -- would be 23 successful. 24 So the police undertook -- once all of 25 these other opinions came in from people like Doctors
791 Walton and Wesson, an undercover operation focussing on 2 the babysitter, JD, and his trust was -- was obtained, 3 and he eventually did give an admission of what he had 4 done to Jenna on the evening of January the 21st, that we 5 did view as -- as a good independently verifiable 6 confession. 7 After it was received, we consulted 8 further with the Office of the Chief Coroner and the 9 experts who were still around the same table, and they 10 agreed that what JD had said was reflected in the 11 injuries that were found on post-mortem examination of 12 Jenna. 13 MR. MARK SANDLER: And had you initiated 14 that -- that analysis? 15 MR. BRIAN GILKINSON: Well, I'd asked for 16 that meeting to take place at the Office of the Chief 17 Coroner once Constable Charmley came to me and said, This 18 is what we have from the undercover operation. 19 MR. MARK SANDLER: And it's probably 20 self- evident to you, but I -- but I want to ask you 21 because of the systemic issue it raises, why didn't you 22 simply take the confession in hand and run with it so to 23 speak, as opposed to taking it to the OCCO to -- to 24 compare it to the available pathology in the case? 25 MR. BRIAN GILKINSON: Well, quite
801 frankly, most people, who have done prosecutions or 2 defence work where a confession was the only dispositive 3 evidence that might be offered, soon learn that what they 4 assumed was inculpatory had exculpatory features to it, 5 or vice versa. 6 And so we wanted to make sure that 7 whatever JD was saying, was, in fact, accurate and 8 consistent with the injuries on the body so that we could 9 have confidence in the sincerity of the confession, that 10 it reflected reality, and that this individual did tell 11 us something that no one else really knew. 12 And -- and the significant point of what 13 he said was not necessarily with respect to the fatal 14 injuries she sustained, but to my mind, the fact that he 15 talked about poking Jenna throughout his involvement with 16 her clearly was consistent with the discoid-type bruising 17 that was on Jenna's body at post-mortem. 18 And that told me -- and I think a lot of 19 people -- he's the individual that clearly did this to 20 this girl. 21 MR. MARK SANDLER: And he ultimately 22 entered a plea of guilt to manslaughter as a -- a young 23 offender and was sentenced accordingly, is that right? 24 MR. BRIAN GILKINSON: That is correct. 25 MR. MARK SANDLER: And one (1) aspect of
811 that I want to ask you about. There -- he also faced a 2 sexual assault charge originally which was withdrawn by 3 the prosecution. 4 MR. BRIAN GILKINSON: There were two (2) 5 counts. There was a three (3) count information. The 6 second two (2) were sexual assault counts if my memory 7 serves. 8 MR. MARK SANDLER: And -- and I take it 9 that was part of the plea negotiative process -- that the 10 sexual assault charges were withdrawn? 11 MR. BRIAN GILKINSON: It was. 12 MR. MARK SANDLER: As a result of the 13 information provided through -- through his statements to 14 the undercover officers, was there evidence available to 15 you of sexual assaults committed by him? 16 MR. BRIAN GILKINSON: There was evidence 17 based on his word that had been contradicted by 18 suggestions by others -- perhaps others, that there was 19 no evidence of sexual assault as well. 20 There were going to be significant 21 evidentiary difficulties with respect to those two (2) 22 counts. And what was decided was that this individual 23 would receive the maximum penalty as a young offender on 24 count one (1) -- that is the manslaughter count. 25 There was really nothing to be gained by
821 trying to throw everything in issue and going through a 2 lengthy trial process on sexual assault counts; just 3 because of sexual accounts that probably would have great 4 evidentiary issues attached to them. 5 MR. MARK SANDLER: All right. And when 6 you say the evidentiary issues arising out of them, are 7 you referring in part to -- to the dispute that existed 8 as to whether or to what extent Dr. Huyer and Dr. Smith 9 had engaged in a sexual examination of -- of the child? 10 MR. BRIAN GILKINSON: Correct. And 11 again, the hair analysis did nothing to advance that -- 12 those counts. 13 MR. MARK SANDLER: Okay. Now I want to 14 ask you some -- some systemic questions if I may. If one 15 looks at your experience on this case. 16 Do you have any comments for the 17 Commissioner on -- from your perspective as to what went 18 right and what went wrong on the file? 19 20 (BRIEF PAUSE) 21 22 MR. BRIAN GILKINSON: Well, it's a 23 situation where I think everybody -- police, Crown and -- 24 and everybody -- really needs to be a little more 25 cognizant of as vis-a-vis, police and Crown. If we're
831 going down to the Office of the Chief Coroner on one (1) 2 of these cases or talking to some other scientist, what 3 is it we're actually asking for? What are the clearly 4 defined issues? 5 And -- and should we be asking the person 6 that's proffered as the expert, Okay, what qualifications 7 do you have, like fully explain the background of the 8 case, then state the issue as you see it. Ask the 9 proffered expert if he sees the issue as the same thing 10 or something else. Ask for an opinion, but ask whether 11 or not the proffered expert is qualified to give that 12 opinion, or is there any other area of expertise that may 13 assist with resolving that issue. 14 And I think if a more comprehensive look 15 at the timing issue had of been taken; if we had of -- 16 if, as police, we had of asked those questions about, Is 17 this the only area we can go for some opinion on timing, 18 then maybe the thought about, Well, we should be talking 19 to a clinician; how do kids with these injuries, how are 20 they going to behave, how are they going to react? 21 And by the same token, part of that 22 background was the fact that Jenna apparently was treated 23 for brain cysts or had brain cysts at some time in -- in 24 the past. Would that impact her response to pain in the 25 face of these injuries and would that impact the si --
841 the clinical picture of how the child would have behaved? 2 There was a suggestion that she hit her 3 head on the -- on the slide in the park, as well. Would 4 a head injury -- there was some suggestion of a head 5 injury -- would that impact how she would react? 6 I think it was a situation where the 7 police did the best they could with the -- with the 8 evidence available at the time. But I think, quite 9 frankly, right off the bat we really have to; what is the 10 issue, what is an area of expertise, or areas of 11 expertise, that would -- would be brought to bear on that 12 and is that all you can say, or can somebody else assist 13 if you're talking to the expert? 14 With respect to the post-mortem 15 examination, again, I don't want to sound critical of the 16 way people deal with their everyday duties. Quite 17 frankly, I should be taking better notes myself of what I 18 do from time to time and don't. 19 But if we had -- if -- if the hair had of 20 been noted on post-mortem; if the consultation that 21 apparently happened between Dr. Smith and Dr. Huyer had 22 of been noted by one (1) or both of them; if it happened, 23 that all would have been front and centre in a report 24 back to the police. And -- and quite frankly, if there 25 was any suggestion that this child could have been
851 sexually assaulted, go through the protocol of taking the 2 swabs and -- and doing the full sexual assault 3 examination. 4 All of that early on may have assisted in 5 focussing on -- on someone other than Brenda Waudby. 6 Now, the police investigation had JD, they had Brenda 7 Waudby, and I don't want to -- I don't want to run on, 8 but quite frankly, it might have been more focussed on 9 one (1) as opposed to other if we had more definitive 10 information and more comprehensive information early on. 11 So, I think what went wrong went wrong, to 12 a certain extent, at post-mortem, and to a certain extent 13 with -- with the time line that was early on given to the 14 police on the basis of Dr. Smith's interpretation of the 15 microscopic findings. 16 That's not to say there weren't other 17 reasons for -- for suspecting that Brenda Waudby may have 18 been involved in the death of her child. There were, but 19 that's what I think went -- went bad -- the approach we 20 take to examining our experts in terms of why can you say 21 this and can somebody else say something else to assist 22 would -- would be of -- of benefit. 23 What went good was Mr. Hauraney's attitude 24 that he had qualified medical opinion that seem contrary 25 to that proffered by the -- by the Crown at the
861 preliminary inquiry, and he was willing to share it. 2 And the fact that he came forward with 3 this medical opinion allowed us to take a look at it and 4 basically joint -- jointly decide on a -- on a course of 5 action in terms of, Well, let's get -- let's get experts 6 together and let's come to some common ground if we can 7 on whether or not timing was resolved -- that helped. 8 The willingness of Dr. Ein to participate 9 in that process certainly helped. And quite frankly, 10 after the withdrawal, every agency -- whether it was the 11 police, the Office of the Chief Coroner -- they were all 12 sincerely devoted to making sure that -- at -- at that 13 stage everything that could be possibly be done to get a 14 qualified opinion was done -- and at no small expense. 15 And that's -- and that's not an -- an 16 important consideration, but it does indicate a measure 17 of the sincerity of the agencies involved in -- in trying 18 to resolve issues as best they could. 19 MR. MARK SANDLER: Okay. I want to ask 20 you about one (1) last area, if I may, Mr. Gilkinson, and 21 that is that -- that in part, as a result of this inquiry 22 being called, I understand that -- that you joined a 23 committee within the Ministry of the Attorney General 24 that was looking at potential initiatives to address some 25 of the expected issues to arise here, am I right?
871 MR. BRIAN GILKINSON: That is correct. 2 MR. MARK SANDLER: And -- and who 3 participated in the committee? 4 MR. BRIAN GILKINSON: Well, I think John 5 Ayre was the Ministry lead with the respect to 6 assembling a team of -- of Crowns that would -- would 7 consider the -- the areas that we anticipated might be 8 examined here insofar as they would impact on -- on the 9 Crowns and Crown conduct of the prosecutions. 10 And we had a number of meetings; we had a 11 number of exchanges by emails with respect of what -- 12 what might assist, and -- and what might assist the 13 Ministry in -- in taking steps to assist us in -- in 14 approaching these issues a little differently. 15 MR. MARK SANDLER: All right. Now, I 16 know that -- that the Province, in an appropriate time, 17 is going to present this in a -- in a more fulsome way, 18 Commissioner, but I -- I've been provided with some of 19 the materials that have already been generated, and 20 perhaps we can just go through them briefly -- 21 COMMISSIONER STEPHEN GOUDGE: Sure. 22 MR. MARK SANDLER: -- with Mr. Gilkinson. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: I guess we'll just put
881 them up on the screen. And, Mr. Gilkinson, why don't -- 2 why don't you take us through this summary of the 3 initiatives that -- that are already on the table as a 4 result of your committee's work. 5 MR. BRIAN GILKINSON: All right. Well, 6 we -- we worked off a definition of child homicide that 7 we would focus on and dealt with children under the age 8 of twelve (12) in any circumstance of suspicious death 9 where pathological evidence would be dispositive on the 10 issues of either whether or not it was a crime or the 11 time that crime occurred. 12 And it involved situations where the Crown 13 is consulted by police or where pediatric forensic 14 patholo -- pathological services are engaged, whether 15 charges are laid or not. 16 So that allows us to basically go into the 17 first real recommendation of tracking when we seek 18 pediatric pathological service and with what result in 19 terms of whether or not we can deal with issues that 20 would be dispositive of whether a prosecution would even 21 be launched. 22 So the -- the first real initiative that, 23 as I understand it, will be -- will be enacted that is to 24 maintain an internal both -- internal searchable database 25 to identify and record all child homicide cases fitting
891 within that definition. 2 And of course, performance measures 3 attached to it would indicate that there's going to be a 4 greater reliability on making sure that that information 5 does go into a database. One (1) of the issues that we 6 had to deal with and face was the fact that, quite 7 frankly, Crowns did experience cases of difficulty, and 8 apparently there's -- we could have improved the ability 9 to communicate those to -- to our superiors and to each 10 other. 11 And this is one (1) way of a Crown being 12 faced with a suspicious death falling within this 13 definition of searching a database and seeing what other 14 Crowns may have dealt with a similar situation to allow 15 communication laterally within the Crown system. 16 We also think it's important given the 17 nature of -- of this activity and the scientific 18 challenges that it presents, and I think the article from 19 -- on the limitations of forensic pediatric pathology 20 that -- from Victoria seems to address an awful lot of 21 material that wasn't within my knowledge. 22 It's important to have a specialized 23 Criminal Law Division lead on these kinds of cases. 24 MR. MARK SANDLER: You're referring to 25 Dr. Cordner's paper from the Victorian Institute that was
901 commissioned for this Inquiry? 2 MR. BRIAN GILKINSON: Yes. There's 3 obviously a need to have someone well versed with those 4 issues and others as a lead in the Ministry so that 5 problems can -- can be reported, tracked and -- and 6 information disseminated. 7 We also think it's important to -- to 8 track any adverse judicial comment in those cases with 9 respect to experts that may have testified. And that 10 there should be a duty -- a mandatory dual reporting 11 process so that it goes to their supervise -- supervisor 12 and to the Criminal Law Division lead for child homicide 13 cases. 14 Indeed, I think we have -- we have policy 15 now that would encourage Crowns to deal with the agency 16 directly itself with respect to the adverse judicial 17 comment or any comments that the Crown may have with 18 respect to the expert's performance on the stand or in 19 the manner in which he or she conducted examinations. 20 The Criminal Law will create an eight (8) 21 person Criminal Law Division Child Homicide Resource 22 Team. Hopefully, that will give us a team of greater 23 expertise with respect to these cases as a resource for 24 prosecuting Crowns to contact and receive advice. 25 Contact with that team should be mandatory
911 so that the team certainly knows what's going on in the 2 Province, and it can offer any advice and assistance 3 possible. 4 And you can see that there's a premium put 5 on contacting that team at the earliest possible stage, 6 that -- 7 MR. MARK SANDLER: If we could go to the 8 next page, please. 9 MR. BRIAN GILKINSON: -- that too may -- 10 may assist in resolving early on exactly where the police 11 should be looking and what they should be doing on 12 issues. 13 We are going to encourage local police 14 forces to engage in pre-charge consultation on these 15 cases because they are -- they are fraught with 16 difficulty with respect to the interpretation of injuries 17 and how they may have occurred. 18 And we're going to encourage pre-trial 19 consultation with police and relevant experts on all such 20 cases, excepting only those where public safety concerns 21 are engaged. And, of course, they should be obvious if 22 an obvious suspect is -- is there and there's a risk of 23 further -- further problems, the police aren't going to 24 wait around before they -- they effect an arrest. So 25 those would be exceptions to that pre-charge
921 consultation. 2 But obviously, the process of consulting 3 with experts and making sure the prosecution is on solid 4 ground should take place as early as possible thereafter. 5 And obviously, all of this requires an 6 educational component with respect to any recommendations 7 this Inquiry makes; with respect to the initiatives that 8 MAG is already introducing. 9 And hopefully, those will be -- those will 10 be done by giving enhanced training to the -- to the team 11 itself, the Division Lead, but also carrying through with 12 education on a regular basis, whether it be through Crown 13 Summer School in association with the Ontario Association 14 of Crown Attorneys or fall conferences as well. 15 MR. MARK SANDLER: Okay. And if we can 16 go to the next page. 17 Now, I'm not going to take you through all 18 of this now, but this information has been provided 19 simply to assist the Commissioner in identifying some of 20 the numbers that are involved, recognizing as you've 21 articulated at the first page, some of the limitations 22 upon the statistics that are currently being kept about 23 child homicide cases. 24 Am I right? 25 MR. BRIAN GILKINSON: Mm-hm.
931 MR. MARK SANDLER: So -- 2 MR. BRIAN GILKINSON: Yes. Excuse me. 3 MR. MARK SANDLER: That's all right. So 4 -- so could you just tell the Commissioner very briefly 5 what it is that -- that has been assembled here and what 6 the limitations are upon it? 7 MR. BRIAN GILKINSON: Well, it's a -- 8 it's a situation where I suppose any -- anybody can read 9 it. We were looking back to see how big a problem do we 10 actually have in this province; how often would we run 11 across cases such as this? 12 So globally we communicated with Crowns' 13 offices and asked them to estimate the number of child 14 homicide prosecutions that would be dealing with children 15 under the age of twelve (12) over the period 1996 to 16 2006. 17 As Dr. Ein said, it's not an exact art or 18 an exact science. But we relied on recollection and I 19 think we determined that there -- there were either 20 completed or ongoing about a hundred and forty-nine (149) 21 homicide matters that had been dealt with or were being 22 dealt with over that period of time. 23 MR. MARK SANDLER: And the period of 24 time, simply for the record, is what? 25 MR. BRIAN GILKINSON: '96 to 2006, if I
941 recall. 2 COMMISSIONER STEPHEN GOUDGE: Those were 3 cases where charges have been laid? 4 MR. BRIAN GILKINSON: Correct -- well, 5 that's my understanding, yes. 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 MR. BRIAN GILKINSON: The charges were 8 laid. We wouldn't be able to remember them otherwise. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. BRIAN GILKINSON: And of course, they 11 include cases that entered the system in 2007 and were 12 presently ongoing. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MR. MARK SANDLER: Okay. Otherwise, I -- 15 I suspect that we can all read the statistics, and if 16 there's any questions arising out of it, we can let you 17 know. That completes my questioning of Mr. Gilkinson. 18 If that would be a convenient time, 19 Commissioner, for morning break? 20 COMMISSIONER STEPHEN GOUDGE: Sure. That 21 is fine, Mr. Sandler. Before we break, just a couple of 22 questions going back to the case involving Jenna, Mr. 23 Gilkinson. Is there an enhanced role for Crowns in -- 24 well, let me start again. 25 You indicated and I think those of us who
951 have read it would agree that Dr. Smith's evidence at the 2 preliminary was somewhat confusing? 3 MR. BRIAN GILKINSON: It was, it was. 4 COMMISSIONER STEPHEN GOUDGE: What role 5 can Crowns play in assisting to address that issue? 6 MR. BRIAN GILKINSON: Well, certainly 7 Crowns that are dealing with -- with any case, given the 8 time, should be meeting with witnesses beforehand, and I 9 assume that that's -- that goes on. And that, with 10 respect to expert evidence, it may be confusing simply on 11 the basis that the language used is beyond the 12 understanding of most lay people, and that we -- we need 13 to try and be cognizant of -- of having witnesses speak 14 in -- in lay terms. 15 With respect to what could -- could 16 address the evidence given in -- in this particular case, 17 I think it was a situation where, as I understand it, Mr. 18 Thompson was somewhat taken aback by the manner in which 19 timing was addressed in cross-examination. 20 That he did not expect the long detailed 21 and -- 22 COMMISSIONER STEPHEN GOUDGE: Answers. 23 MR. BRIAN GILKINSON: -- somewhat 24 confusing answers that Dr. Smith was -- was giving to 25 that one (1) question about, What can you tell us about
961 the timing of these injuries. I think he was -- and -- 2 and again, I had not consulted Mr. Thompson, but I 3 remember at the time understanding from others that were 4 -- were present that this business about him thinking 5 that, quite clearly, it was JD and that was his first 6 involvement was -- or his first belief was somewhat new. 7 I think it's a situation where you just 8 wind up trying to prepare yourself to prepare the 9 witnesses. If you don't understand what a witness is 10 going to say and how he's going to say it, it's not going 11 to go well. I'm talking in general now. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. BRIAN GILKINSON: Mr. Thompson's an 14 excellent advocate. 15 COMMISSIONER STEPHEN GOUDGE: And this is 16 not a dispersion on him by any means. 17 MR. BRIAN GILKINSON: Yeah. 18 COMMISSIONER STEPHEN GOUDGE: It just -- 19 it is a challenge that the system has to deal with. 20 MR. BRIAN GILKINSON: Well, it -- and 21 that's correct. And quite frankly, some experts are much 22 more comfortable in the lab than -- than they are in a -- 23 in a witness box. And it's hard for some Crowns, myself 24 included, to stop using language inappropriate to 25 children when I have a VWAP individual in my -- or Victim
971 Witness Assistance Program person in my office and a 2 child, I'll often times have them telling the child, This 3 is what he means, you know, -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MR. BRIAN GILKINSON: -- and you have to 6 -- you have to step back. So I think it's really 7 important to -- to meet with the witnesses, particularly 8 your experts, see if you can basically have them explain 9 things in layman's terms and focus on what is being 10 asked. 11 There was some speculation in Dr. Smith's 12 evidence with respect to healthy versus unhealthy, and -- 13 and some -- some matters that seemed to be extraneous to 14 the -- to the core issue here. And if -- if we're 15 sitting there beforehand and you have a -- a witness 16 saying, Well, these show a minimum of six (6) to twelve 17 (12) hours, and then there's a maximum in this timeframe 18 of twenty-four (24) to twenty-eight (28) hours or 19 thereabouts, if I knew that before the preliminary 20 hearing, I think I'd be looking for someone else to help 21 me. 22 Not to the exclusion of Dr. Smith, but 23 someone else to bring greater clarity to what are the 24 actual issues driving any -- any estimate of timing or in 25 fact, can you get an accurate estimate of timing.
981 COMMISSIONER STEPHEN GOUDGE: Right, 2 okay. 3 MR. BRIAN GILKINSON: I don't know if 4 that's responsive. 5 COMMISSIONER STEPHEN GOUDGE: No, that's 6 very helpful. 7 And the second sort of general question I 8 have relating to Jenna's case was, when you got into it 9 for the first time did you have any sense yourself of the 10 reputation that Dr. Smith had as a pediatric forensic 11 pathologist? 12 MR. BRIAN GILKINSON: Oh, yeah, and, 13 well, Dr. Smith was accepted to be, I don't know whether 14 you call it the cream of the crop, but he was very, very 15 highly thought of -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. BRIAN GILKINSON: -- and I had no 18 reason to think that Dr. Smith wasn't competent and 19 didn't -- didn't know his opinion and -- and -- 20 COMMISSIONER STEPHEN GOUDGE: Did that 21 affect the way events unfolded at all in this case, from 22 your perspective? 23 MR. BRIAN GILKINSON: I don't think so. 24 Quite frankly, if you have a number of other expert's 25 opinions coming through you, or to you through -- through
991 the defence, I have no reason to think Dr. Finkel doesn't 2 know what he's talking about, or Dr. Ein, or Dr. Rao. 3 I dealt with Dr. Smith in the past in -- 4 in an inquest situation that was non-contentious. I 5 dealt with Dr. Rao. I think as a prosecutor you have to 6 take a look at the content of what is being said and the 7 foundation for it. And once that foundation seems to be 8 in question, you need to make further inquiries to see 9 whether or not it can be resolved. 10 COMMISSIONER STEPHEN GOUDGE: Okay, 11 that's very helpful. Thanks, Mr. Gilkinson. 12 MR. BRIAN GILKINSON: You're welcome, 13 Commissioner. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: Just before we break, 17 one (1) question arising out it. You said very early in 18 your examination that -- that the real issue in this case 19 was the timing of the injuries, as opposed to whether or 20 not the child had been killed. 21 But the post-mortem report itself -- and 22 this isn't a criticism of Dr. Smith, but it's a 23 reflection of how reports of post-mortem are generally 24 done -- doesn't really speak to the timing of issues; 25 timing of the injuries. All of that's developed through
1001 either the exchanges at the preliminary inquiry or 2 dialogue that precedes the preliminary inquiry. 3 Would you see some value in having a 4 report of post-mortem examination, not only articulate 5 the abnormal findings and the cause of death, but also 6 speak to the issues that are of importance to the 7 consumer of the reports, namely -- namely the Crowns, 8 defence counsel, and the Court? 9 MR. BRIAN GILKINSON: Well, it takes a 10 while to generate these reports, so if there was a 11 section in the report, right off the bat the detailed 12 background information supplied by the police, or even 13 attached a synopsis of what the police investigation was 14 all about, then the pathologist might have a better and - 15 - and more clear understanding of -- of the significance 16 of what he's seeing on the autopsy table. 17 And with respect to whether or not we'd be 18 asking the pathologist to address the particular issues 19 in the case, I think that's still better left to case 20 conference, particularly in an air of when we don't have 21 very many certified forensic pathologists, let alone 22 those that specialise in pediatric forensic pathology. 23 So I think giving the pathologist a clear 24 background of information and -- and photographs, if -- 25 if necessary is going to be helpful, but I don't know
1011 whether or not the police at that stage would ever be 2 able to have concluded enough of the investigation to 3 identify exactly where the issues are going to lie, that 4 a -- that a pathologist can speak to. I think I'd rather 5 leave that to case conferencing where you want to be able 6 to ask the pathologist before you seek an opinion, this 7 is the issue, are you qualified to give it, is there 8 someone else that may assist with respect to this issue, 9 or that we should be going to instead of you. 10 Otherwise, we're just relying on police 11 and Crown, who don't necessarily know who can address the 12 issues attaching them as a submission to the pathologist 13 when that might not be appropriate. 14 MR. MARK SANDLER: Okay. Thank you very 15 much. 16 COMMISSIONER STEPHEN GOUDGE: Thanks, 17 that's helpful. We'll rise, then, for fifteen (15) 18 minutes. 19 20 --- Upon recessing at 11:31 a.m. 21 --- Upon resuming at 11:50 a.m. 22 23 THE REGISTRAR: All rise. Please be 24 seated. 25 COMMISSIONER STEPHEN GOUDGE: Mr.
1021 Sandler...? 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Yes, thank you, 5 Commissioner. I'm going to turn to Ms. Regimbal now, if 6 I -- if I may, and ask some questions arising out of the 7 Amber prosecution. 8 We've heard evidence that Amber was born 9 in Timmins on March the 13th of 1987 and died on July 10 30th of 1988 at the age of sixteen (16) months. 11 Criminal proceedings were initiated 12 against Amber's twelve (12) year old babysitter, who was 13 charged with manslaughter. We've also heard that on 14 December the 13th of 1998 Dr. Smith and Young went to 15 Timmins to meet with Crown counsel and the police, and 16 two (2) days later Amber (sic) was charged. 17 Were you involved in the -- that early 18 meeting with Crown counsel or in the decision to charge 19 Amber (sic)? 20 MS. TERRI REGIMBAL: Mr. Thomas was the 21 senior Crown attorney in the office, and I believe he met 22 with Dr. Young and Dr. Smith. And ultimately the 23 decision to assist the police in the charging would have 24 rested with him. 25 I don't believe I was involved with it. I
1031 have no memory of being involved in it. Although I'm 2 sure I was aware that -- it's a small office and I think 3 I would have known if the Deputy Chief Coroner was flying 4 into Timmins to meet with the Crown. 5 MR. MARK SANDLER: Right. And how long 6 had you been with the Timmins Crown's office at that 7 point in time? 8 MS. TERRI REGIMBAL: I joined in 1988, so 9 not that long really. I can't remember the exact month 10 that I was there. 11 MR. MARK SANDLER: 1988? 12 MS. TERRI REGIMBAL: Yes. 13 MR. MARK SANDLER: Okay. All right. And 14 we've heard that the trial commenced on October the 2nd 15 of 1989 and we know from a review of the trial 16 transcript, that you indeed were the one who prosecuted 17 it. 18 Am I right? 19 MS. TERRI REGIMBAL: Yes, I had some 20 assistance from Mr. Thomas. He was there, I think, for 21 the first couple of days, and I believe he examined at 22 least one (1) of the witnesses. 23 MR. MARK SANDLER: All right. And how 24 was it decided or why was it decided that you would carry 25 on the prosecution?
1041 MS. TERRI REGIMBAL: Initially I was 2 assigned as the lead prosecutor even though he had -- he 3 was there, because he had a first degree murder 4 prosecution, I believe, in Cochrane that was ongoing at 5 the same time the manslaughter case was taking place in 6 Timmins. 7 MR. MARK SANDLER: All right. And had 8 you been involved in a pediatric homicide case before? 9 MS. TERRI REGIMBAL: I had been juniored 10 on a second degree -- first degree murder case involving 11 a twelve (12) year old girl, but not anything involving 12 any infants. 13 MR. MARK SANDLER: Okay. And had you 14 been involved in a case that contained an allegation of 15 Shaken Baby Syndrome, or was that relatively new? 16 MS. TERRI REGIMBAL: No, that was my 17 first experience with that phenomenon. 18 MR. MARK SANDLER: Okay. At the 19 beginning of the case, did you have confidence in it? 20 MS. TERRI REGIMBAL: I had great 21 confidence in it. As I said, the Deputy Chief Coroner 22 and -- who I was lead to believe was Canada's leading 23 pediatric pathologist had flown up to Timmins, taken the 24 time to go through the findings of the doctors with Mr. 25 Thomas. And I would have heard about that.
1051 And they were absolutely confident that 2 this was -- the diagnosis was Shaken Baby, and that's 3 what Amber died from. She did not die from the fall down 4 the five (5) stairs onto the padded linoleum floor. 5 And yes, I was very confident. And after 6 I met with Drs Barkers and Drs Driver and Dr. Smith in 7 Toronto in preparation for the case, I remained equally 8 confident in the strength of the Crown's case, because 9 they all presented as very intelligent, experienced, 10 committed professionals with a vast amount of expertise 11 in this area. 12 MR. MARK SANDLER: And of course then 13 they were all associated with the Hospital for Sick 14 Children, that also enjoys its reputation? 15 MS. TERRI REGIMBAL: Well of course, and 16 I -- I would have seen the Hospital for Sick Children as 17 being an internationally renowned centre with an 18 outstanding reputation for skill and ability and 19 knowledge and experience. 20 MR. MARK SANDLER: Okay. What role did 21 the Timmin's police play in assisting you on the file? 22 MS. TERRI REGIMBAL: In the normal 23 traditional sense. If I needed something extra done, I 24 would ask them to do it. I would expect them to execute 25 search warrants and ensure they had all the relevant
1061 documents, take whatever statements they felt necessary 2 or take any follow-up statements that I might ask them to 3 take. 4 MR. MARK SANDLER: All right. Did you 5 have any difficulties or problems with the police support 6 that you received in the case? And I don't ask that in 7 any pejorative was, but I -- I want to understand what, 8 if any, limitations you felt about the assistance that 9 could be provided by the police in this kind of a case? 10 MS. TERRI REGIMBAL: Well, it probably 11 was a case that would have been an unusual type of 12 investigation for them and they wouldn't have had a great 13 deal of experience in investigating homicides involving 14 young persons as suspects. 15 And I think that was evidenced in the fact 16 that despite their knowledge that this was a suspicious 17 death and that they may be involved in a homicide 18 investigation, when they interviewed the babysitter, they 19 did not take a statement in compliance with the Young 20 Offenders Act, which, of course, made them inadmissible. 21 MR. MARK SANDLER: All right. And can 22 you help the Commissioner out systemically, on -- on this 23 issue, to what extent in your experience do the police in 24 your region have training and experience in cases of this 25 medical complexity?
1071 MS. TERRI REGIMBAL: The North Region is 2 comprised of many different policing forces. So when you 3 have small municipal forces, they wouldn't have, for 4 example, the depth of experience or training you might 5 find in the Provincial -- Ontario Provincial Police 6 force. They would have a great -- a deeper experience 7 and also they would have a deeper pool of resources to 8 draw on. 9 And possibly even because of budgetary 10 issues, they -- the individual officers might have 11 received more training because it's often difficult in a 12 municipal budget to find the same dollars for training 13 the officers that you have available through the 14 Provincial force of the Ontario Provincial Police. 15 MR. MARK SANDLER: If we can go together 16 to the overview report, which is at Tab 1 of your 17 materials, PFP143724. And I'm going to take you, if I 18 may, to paragraph 92, which is found at page 33. 19 And we see from a summary of the trial 20 that commences at this page that Dr. Smith was the 21 principal witness for the Crown. He was qualified as an 22 expert witness in pediatric forensic pathology. And we 23 see at paragraph 93 that Dr. Smith acknowledged his 24 expertise in the area of forensic pathology. 25 Now, was there any issue at the time about
1081 his expertise in forensic pathology? 2 MS. TERRI REGIMBAL: No, not as far as I 3 recall. And having scanned as many of the transcripts as 4 I could have, I didn't see that there was any issue in 5 his expertise in that. 6 He was, however, also qualified by the 7 judge as an expert in the Shaken Baby Syndrome. I think 8 that's kind of an important distinction to make and may 9 explain, perhaps, why he was allowed to testify in a 10 rather free-wheeling manner later on in the trial. 11 MR. MARK SANDLER: Okay. And thank you 12 for that. And just focussing on the expertise in 13 forensic pathology, we've heard that he wasn't accredited 14 or trained as a forensic pathologist though he was 15 certainly performing the work of a forensic pathologist. 16 Was anyone alive to the absence of 17 accreditation or training in forensic pathology at that 18 point in time? 19 MS. TERRI REGIMBAL: I don't believe we 20 would have been alive to that. He was considered to be 21 the leading pediatric -- forensic pediatric pathologist 22 in the country. 23 MR. MARK SANDLER: Okay. 24 MS. TERRI REGIMBAL: And that's how he 25 was presented to us by Dr. Young, and that's how the
1091 other doctors viewed him at Hospital for Sick Children, 2 and that's how I perceived him. 3 MR. MARK SANDLER: Now, I'm not going to 4 take you to it, but the report of post-mortem examination 5 -- and -- and you may have heard similar questions that I 6 directed to Mr. Gilkinson earlier in the morning -- sets 7 out the abnormal pathology findings and the cause of 8 death as head injury but doesn't otherwise set out much 9 of what Dr. Smith ultimately had to say about a variety 10 of topics: Shaken Baby Syndrome; the basis for 11 concluding that it was a shaking case; domestic falls and 12 whether they could cause serious injury or death; and the 13 significance of the various pathological findings that 14 were evident in the case; the literature that he relied 15 upon and so on. 16 Did the absence of -- of that kind of 17 information in the report of post-mortem examination pose 18 any difficulties for you? 19 MS. TERRI REGIMBAL: I think that it did 20 pose difficulties for me and for defence counsel as well 21 in preparing to respond to the case and understand the 22 case. 23 MR. MARK SANDLER: All right. You heard 24 the question that I put to Mr. Gilkinson which is: 25 "Would it be of some assistance if
1101 forensic pathologists would prepare 2 more fulsome reports that would address 3 some of the issues that are thrown up 4 by the case, other than simply cause of 5 death or abnormal pathological 6 findings?" 7 Do you have any views on that issue with 8 the benefit of the experience you've gleaned in this and 9 other cases? 10 MS. TERRI REGIMBAL: Yes, absolutely. It 11 would be incredibly important and valuable to all of us 12 to have as much information as possible for the Crown 13 when assessing the case and for the defence counsel when 14 assessing the case in trying to determine how we're going 15 to proceed on this. 16 I have prosecuted another homicide 17 involving an infant, and this case and how my experience 18 through it changed my approach to that case because I 19 didn't want to be caught not knowing all of the details 20 that were going to be said in evidence surrounding the -- 21 it still was a sparse report -- it certainly was more 22 comprehensive than the one I'd received in Amber's case. 23 So I went and met with the pediatric 24 pathologist and spent a long time with him. And even as 25 I was with him, I observed the same issues that had
1111 struck me in Amber's case which is that sometimes doctors 2 will say things to you in a very strong assertive way, 3 and then maybe twenty (20) minutes later in the 4 conversation, they'll have muted it and maybe said it a 5 little softer, and -- so I said that's our same feeling, 6 like, I need to know what the evidence is that the Crown 7 can count on. 8 So when I returned back to my office, I 9 sent the pediatric pathologist a letter with forty (40) 10 questions in it following up from our conversations 11 because again I wanted to be in a position, a) where I 12 understood exactly what he was going to testify to -- 13 exactly what my case consists of. 14 And b) I wanted to be able to have a 15 concrete document to disclose to the defence so that 16 they, as well, would know exactly what they would be 17 facing during the trial. And I give credit to that 18 pediatric pathologist. He answered every single one of 19 my questions. 20 And in them, I included the defence theory 21 as I understood it. And, you know, asking, Can you 22 comment on this? Are the injuries in any way consistent 23 with this account? And then he -- so he wrote me back, 24 and then I wrote him again and sent -- I can't remember - 25 - maybe ten (10) to twenty (20) more questions that
1121 followed up from what he said, and he wrote me back 2 again. 3 And that was all disclosed to the defence. 4 And I felt much more comfortable going into the trial 5 with that kind of foundation. And we all know the field 6 we're on, and we all know what to expect. And in fact, 7 at the end, the extra information he gave me did impact 8 how I proceeded with the case and was one (1) factor that 9 lead me into accepting a plea of manslaughter instead of 10 proceeding on the prosecution of second degree murder. 11 MR. MARK SANDLER: All right. So that -- 12 so that the value in getting answers to those larger 13 questions that arise in the case as both in terms of 14 disclosure and in terms of having -- having some firm 15 expectations of what the evidence will be, and in terms 16 of the exercise of prosecutorial discretion in how the 17 case will proceed? 18 All of those things? 19 MS. TERRI REGIMBAL: All of those things. 20 It's -- it's so crucial. And it was a very helpful 21 experience and I -- sort of reinforced my view that I -- 22 you know, I -- I do this now when I meet with -- anytime 23 cause of death might be remotely an issue; that's my 24 practices. 25 I will meet with the pathologist, and then
1131 I will write back and commit them to writing as to what 2 their position is -- give them that opportunity, you 3 know, This is what you've told me. This is what I'm 4 going to be disclosing -- this letter to the defence. If 5 you have any other matters you wish to add, change, 6 elaborate on please do it now. 7 Because I think I did learn from Amber's 8 case that when evidence is developing and changing on the 9 stand, that's really not the best route to justice. 10 MR. MARK SANDLER: All right. And -- and 11 it's implicit in what you've said already, but I'll -- 12 I'll ask you explicitly. 13 During the Amber case, the -- the spare 14 report of post-mortem examination caused some exchanges 15 between you and Mr. Renaud, defence counsel, concerning 16 additional disclosure of what Dr. Smith had to say, 17 didn't it? 18 MS. TERRI REGIMBAL: Yes, certainly. And 19 I -- I did take some consolation in the fact that I knew 20 Mr. Renaud was going to meet with Dr. Smith prior to Dr. 21 Smith testifying, and that he would have full access to 22 Dr. Smith's thoughts and conclusions. Again, it would 23 have been nicer if we had known in advance and if we had 24 everything documented. 25 I know that the medical field doesn't
1141 always work like the lawyers; we would like everything 2 documented. And a lot -- what I found was a lot of the 3 interactions between the doctors; they were sort of 4 verbal exchanges in hallways or quick updates on phones, 5 and that's sort of how their world has to operate and yet 6 in the legal world, we want precision and we want ample 7 note-taking and statements that we can disclose. It's a 8 bit of a conflict I think between the two (2) worlds. 9 But yes, it became a problem. 10 But I would have to say that at the time 11 back -- and again, you have to remember we're going back 12 eighteen (18) to twenty (20) years ago, things were very 13 different, both in our practices in the legal field and 14 in the medical field. I didn't necessarily expect a lot 15 more by way of a post-mortem report than what I got. I 16 didn't look at it and think, Oh, this isn't sufficient; 17 this is inadequate; this isn't detailed enough. I'd seen 18 other post-mortem reports. I didn't think that it stood 19 out as being -- 20 MR. MARK SANDLER: Atypical. 21 MS. TERRI REGIMBAL: -- much less 22 informative or atypical of what we would have been 23 getting. 24 MR. MARK SANDLER: Okay. Now if I can 25 take you to page 39 of the overview report, paragraph
1151 101. And in this passage, Dr. Smith testified that this 2 own personal experience as a father also suggested to him 3 that short domestic falls do not kill children. And then 4 he went on to describe what happens when his children 5 have a tumble down the stairs and, in effect, they need 6 to be cuddled, get a little loving and kissing, but -- 7 but in effect they don't die or they're not seriously 8 ill. 9 Did you -- did you see any difficulties 10 with the logic of that approach or the scope of the 11 testimony that he was giving at the time? 12 MS. TERRI REGIMBAL: That portion of the 13 evidence, from my perspective, was not something that I 14 felt was necessary for his diagnosis, his conclusions. I 15 felt it was just given as an aside. He didn't place any 16 particular weight on his anecdotal experiences. 17 However, I, in fairness, have to point out 18 that two (2) other -- there were other doctors who 19 referred to their personal anecdotal experiences as well. 20 And I remember quite vividly, Dr. Duhaime, 21 when being asked -- and again, probably something outside 22 of her area of expertise -- as to the fact that there 23 were inconsistent descriptions of the events by the 24 babysitter, she referred to her husband and how her 25 husband had watched their child tumble down some stairs,
1161 and that her husband had been unable to give a detailed 2 description of the events. 3 And, again, I remember Dr. Ommaya had 4 testified to -- when he was testifying about the dynamics 5 of a fall, he had testified to some experiences of his 6 two (2) year old daughter and the observations he'd made 7 about how she fell. 8 And so I didn't see it that anybody would 9 place a lot of weight on it; anymore than they would have 10 placed a lot of weight on what Dr. Duhaime said. 11 From my perspective -- I understand that 12 Justice Dunn chose to comment on that, and I believe he 13 commented on Dr. Duhaime's description of her husband's 14 inability to recollect a traumatic event. So I 15 understand that. But from my perspective as the 16 prosecutor, I didn't really place a lot of weight on any 17 of those three (3) -- 18 MR. MARK SANDLER: Right. 19 MS. TERRI REGIMBAL: -- I don't know what 20 I would call them -- fill-ins. 21 MR. MARK SANDLER: So -- so two (2) 22 points can be taken from that. The first is that -- is 23 that this -- this approach was not unique to Dr. Smith 24 but was also reflective in the way other evidence was 25 given during the trial.
1171 And the second is that to some extent, it 2 was reflective of the approach that the Trial Judge was 3 taking to -- to the admission of evidence. 4 Is that a fair comment? 5 MS. TERRI REGIMBAL: Yes, I think that's 6 very fair. Justice Dunn repeated many times throughout 7 the trial he wanted as much information as possible to 8 assist in -- in making the appropriate decisions. 9 And I think too you have to remember that 10 -- if my recollection is right, Dr. Smith testified for 11 at least three (3) days if not four (4). And I think 12 that the cross-examination had very little to do with 13 this particular paragraph and I think that this just 14 formed a small portion of his overall evidence. 15 MR. MARK SANDLER: All right. And what 16 I'm going to suggest is we actually see another 17 manifestation of the approach here if one looks at 18 paragraph 105 at page 41 of the overview report. 19 "Dr. Smith testified that as a forensic 20 pathologist he could go beyond simply 21 responding to the pure pathology 22 evidence. Instead he offered to assist 23 the Trial judge by trying to put 24 together a series of events that 25 allowed the court to come to some
1181 reasonable conclusion." 2 And then he goes on and -- and the 3 Commissioner has seen the very lengthy passages that 4 follow -- but -- but, in essence, it would appear to be 5 providing some sort of a profile of the kinds of people 6 and the kinds of circumstances under which a -- a baby is 7 shaken. 8 First of all, do you see -- and I'm asking 9 you based upon your experience in this case and others, 10 do you see that kind of evidence as -- as appropriately 11 given by a forensic pathologist? 12 MS. TERRI REGIMBAL: Well, absolutely 13 not. And I don't think it was ever my intention to lead 14 this kind of reflective picture or story, and I -- I -- 15 my recollection is it came out as a result of the judge's 16 questions, and the judge allowing Dr. Smith to -- to give 17 this. 18 It has really no place in a criminal 19 prosecution. It ought not to have been lead. You know, 20 the -- the decision should have been -- come on the facts 21 that were found on the case not on what thing -- what 22 usually happens in cases of caregiver violence on an -- 23 on a child. 24 MR. MARK SANDLER: And again -- 25 MS. TERRI REGIMBAL: And certainly I'd
1191 never ever dream of leading it and would probably object 2 strenuously if anyone tried to lead that type of 3 evidence. 4 MR. MARK SANDLER: But what I was going 5 to say is that, in fairness, if one actually looks at the 6 transcript, one could make the argument that, if 7 anything, it -- it provided more assistance to the 8 defence than it did to the Crown since it appeared that 9 the babysitter didn't necessarily meet the profile that 10 he was articulating. 11 MS. TERRI REGIMBAL: Yeah, I -- yeah, I 12 can't answer it. It would -- that would have all 13 depended on what facts Justice Dunn found, but 14 ultimately, based on the facts he found, that's correct. 15 MR. MARK SANDLER: Okay. Now, we know 16 from a review of the transcript that Mr. Renaud, now 17 Justice Renaud, fairly vigorously cross-examined Dr. 18 Smith on -- on all aspects of -- of his testimony, and 19 indeed, cross-examined, with some vigour, the other 20 experts that were tendered by the prosecution. 21 I'm trying to get some sense of the 22 dynamic there. Here you are in the -- in -- in an office 23 in Timmins. You're prosecuting the case without co- 24 counsel. 25 Did you feel any difficulties in -- in
1201 addressing the science as it was developing either 2 through the cross-examination by Mr. Renaud of your 3 experts or as the defence experts were paraded one by one 4 to the stand, and we know there were nine (9) of them? 5 MS. TERRI REGIMBAL: Yes, well, you know, 6 of course, as we're sitting here in January of 2008, and 7 we have the benefit of twenty (20) years of hindsight, 8 and a -- and a developing understanding of the 9 phenomenon, there -- there's an invaluable benefit 10 really. 11 Certainly, nowadays I could say, Well if I 12 had known what some of that expert evidence would have 13 produced, I -- I probably wouldn't have even prosecuted 14 that case; as well dealing with the changes and the views 15 now about small falls can kill. 16 At the time, that was the general dominant 17 theme of all the literature was that small falls don't 18 kill. But it was difficult to -- to grapple with expert 19 after expert and have perhaps an hour and a half to 20 formulate some sort of intelligible cross-examination in 21 relation to their evidence. 22 I think that through the cross-examination 23 of Dr. Smith, I had a little bit of advance notice of 24 some of the areas that I might expect some of the defence 25 evidence would cover, but it was a challenging process,
1211 to say the least. 2 MR. MARK SANDLER: All right. 3 COMMISSIONER STEPHEN GOUDGE: So no 4 voluntary disclosure, if anything, the defence experts 5 were going to say? 6 MS. TERRI REGIMBAL: No, none at all. 7 And -- and I -- I did have the opportunity, of course, to 8 -- at times, if Mr. Thomas was around, to speak to with 9 him. I also took advantage of the hour an half breaks to 10 call the Hospital for Sick Children and try and track 11 down Dr. Barker or Dr. Driver or Dr. Smith and get some 12 sense of -- Okay, someone has just come and they've told 13 me this, this, and this, and this seems to be in 14 contradiction of what you said on this, this, and this, 15 and -- and how am I reconciling these? What are your 16 suggestions on, you know, how -- how I should handle 17 this? 18 Are you aware of some studies or some 19 other article, or something I'm missing, and so I would 20 be getting advice, but it was not conducive to the best 21 way to prepare, to prosecute, to run a case. 22 And there's no doubt, if I had had the 23 reports in advance, I -- we could have sat -- I could 24 have sat down with the doctors and I think, at the very 25 least -- at the very least -- even if I had had some of
1221 those reports prior to come -- proceeding with the trial, 2 at the very least, I would have sought an independent 3 opinion outside of the Hospital for Sick Children. 4 I would have done that. It would have 5 been the very least I would have done, even in 1989. At 6 the very most, if I had had time to perhaps sit down 7 really with a Dr. Yan Leetsma or a Dr. Charles Ferguson, 8 or a Dr. Patricia Horsham -- all of whom are experts that 9 I could easily acknowledge as being, you know, very 10 foremost in their fields -- if I had time to really sit 11 down with them and discuss some of the positions that -- 12 from the Hospital for Sick Children in a sort of a calmer 13 less time-pressured way, it may very well have resulted 14 in the case not proceeding. 15 MR. MARK SANDLER: All right. Just as a 16 matter of practice, kind of jumping forward to the 17 position you're in now, when -- when you have a case 18 that's dependent upon expert opinion evidence in whole or 19 in part, do you get reciprocal disclosure from the 20 defence of expertise that -- that they rely upon? Tell 21 us about the current experience. 22 MS. TERRI REGIMBAL: Well, I would say on 23 a local level in the District of Timiskaming where I 24 work, generally, we have a very, very good rapport with 25 the Defence Bar.
1231 They know that I'm not asking them for 2 their expert evidence to shore up my case. They 3 understand and they have seen that if they're upfront 4 with me about the expert evidence, you know, and if it 5 raises a reasonable doubt and affects my reasonable 6 prospect of conviction, I'm going to withdraw the case. 7 So, we have a fairly good relationship on 8 reciprocal disclosure, but it's not, of course, a 9 mandatory thing, and not all defence counsel, even in my 10 district, wish to share that information. 11 I have written on a case to the defence 12 counsel where I knew the cause of injury was going to be 13 an issue and I've written to them and I -- I've pleaded 14 with them and said, You know, look, if you have anything 15 there or any doubts, any concerns, any worries about how 16 this case has been assessed or dealt with; if you have 17 any contro -- any kind opposing medical evidence, I'm 18 urging you to disclose it in advance of the trial, before 19 you have to, so that I can look at it and see if it 20 affects my assessment of reasonable prospect of 21 conviction, to see if it would persuade me that I need 22 another outside opinion on the cause of injury, and that 23 -- you know, that -- that's -- that's what I've done. 24 I don't always get it; in that case, I'm 25 not getting it, and it's unfortunate because I really
1241 believe that if we had reciprocal disclosure, if we were 2 able to sit down with each other's experts, not only 3 could we shorten trial processes, but we might be able to 4 eliminate trials either by way of a withdrawal or a 5 guilty plea. 6 MR. MARK SANDLER: A systemic question 7 coming out of that, which I may direct to everyone on the 8 panel, as well, and that is, currently the Criminal Code 9 does have some provisions that address reciprocal 10 disclosure, namely the disclosure in a timely way of the 11 identity of the experts and -- and their background, but 12 disclosure of the contents of a defence expert's report 13 only comes at the end of the Crown's case. 14 I'll ask you first, because you're now 15 dealing with the topic, in your view is that an adequate 16 provision to address the concerns that you've identified? 17 MS. TERRI REGIMBAL: Well, I don't think 18 it is at all. I think that if we can look at this issue 19 and just accept that, as Crown counsel, we have an 20 obligation to assess reasonable prospect of conviction, 21 and any important information that may affect that 22 assessment ought to be disclosed before the end of the 23 Crown's case because it has a negative effect for so many 24 people. 25 I mean if it was going to impact a Crown's
1251 decision to proceed, you wouldn't have an accused person 2 with a charge hanging over their head for so long; people 3 perhaps detained in custody, people with restrictive bail 4 conditions, people having to live with -- in small 5 communities with that cloud above their heads. 6 I just think it would be a lot more 7 effective if the disclosure of defence expert reports 8 came before the trial started. I mean, all it does 9 coming at the end of the Crown case is perhaps give you a 10 better opportunity to prepare your cross-examination at 11 that point. 12 MR. MARK SANDLER: All right. And, Mr. 13 Bradley, I haven't called upon you up until this point in 14 time. Do you have any additional comments than those 15 already expressed or different views in that regard? 16 MR. EDWARD BRADLEY: No, I certainly feel 17 that it's -- it's important that we have some reciprocal 18 disclosure. Just giving us the identity and the 19 background of -- of an expert is -- is not really all 20 that beneficial. 21 And, in fact, if we don't get the defence 22 reports until the end of the Crown's case, all it does it 23 unnecessarily delay matters because depending on the 24 length of the report and the significance of it, it may 25 mean the necessity of requesting a brief adjournment so
1261 that we can fully examine the matter. 2 And I'm sure we'll get to perhaps that -- 3 in my -- the one (1) that I prosecuted, that was one (1) 4 of the problems; you know, lack of reciprocal disclosure 5 on the defence. 6 MR. MARK SANDLER: And we will get there. 7 And, Mr. Gilkinson, we know the benefits 8 of reciprocal disclosure. In your case, Mr. Hauraney 9 brought about the withdrawal of the charges against his 10 client as a result. 11 Do you have any additional comments that 12 you'd like to make as to what you'd see in place -- what 13 you'd like to see in place? 14 MR. BRIAN GILKINSON: Well, I can say 15 that every case depends on its own circumstances. But in 16 a situation where defence has had an opportunity to 17 cross-examine the experts to be offered by the Crown at 18 trial, there doesn't seem to be any need to wait until 19 the -- till the close or close to the close of the 20 Crown's case at trial before disclosing your defence 21 expert evidence. Hopefully, you've established and 22 frozen the evidence of the Crown expert. It's not a 23 situation of necessarily better preparing them for cross- 24 examination at that standpoint. 25 And I think after a preliminary hearing,
1271 if the defence has had an opportunity to cross-examine 2 the Crown expert, that's the time you should start 3 disclosing that material. 4 If the defence hasn't had an opportunity 5 to cross-examine the experts to be offered by the Crown 6 at trial, I'm not going to second-guess their discretion 7 in terms of how they wish to present their case. 8 And they may think it's a valuable 9 exercise not to disclose what their experts are going to 10 say until after they've had an opportunity to freeze the 11 Crown expert on cross-examination. 12 So like I said, it depends on the 13 circumstances facing defence counsel. 14 MR. MARK SANDLER: Okay. All right, I'll 15 go back to the Amber case, if I may. 16 And if I can go to Tab 22 of the 17 materials, PFP120416, and just what I'm taking you to is 18 an exchange of letters between you and Mr. Renaud that 19 concerns the issue of disclosure. 20 And you'll see in the first letter that 21 I've taken you to at Tab 22, you've reflected that you 22 met with Dr. Chuang of the Hospital for Sick Children; 23 that he's reviewed the CT scan, has concluded it does not 24 show a linear fracture. 25 "I've advised him the Crown has no
1281 objection to having a defence expert 2 review the CT scan and he's aware of 3 that. As you are aware, Dr. Smith does 4 not believe there was a linear 5 fracture. 6 I would ask you to send me copies of 7 your expert's report for the purpose of 8 expediting the trial. As you are 9 undoubtedly aware, the complex nature 10 of the evidence given by all these 11 medical individuals and experts in 12 their field requires some careful 13 preparation for cross-examination. I 14 don't wish to protract the proceedings 15 by having to ask for further 16 adjournments in order to prepare my 17 cross-examination. I hope you'll 18 extend me this courtesy." 19 So, there, recognizing that you can't 20 mandate it, you, nonetheless, were reflecting the 21 dynamics that -- that compel you to make the request at 22 least? 23 MS. TERRI REGIMBAL: Yes, that's correct. 24 MR. MARK SANDLER: And then if you go to 25 the next tab, Tab 23, Mr. Renaud at PFP120418
1291 acknowledges receipt of your earlier letter: 2 "Please be advised I am instructed to 3 decline your invitation to provide you 4 with copies of the reports of the 5 eleven (11) medical experts I propose 6 to examine. Indeed, I find your 7 request, predicated as it is upon some 8 aspect of courtesy, somewhat puzzling 9 given the lack of full disclosure I 10 have encountered and your absolute 11 refusal to instruct Dr. Smith to draft 12 a report of his findings and opinions 13 for review by myself and my team of 14 experts. However, should Dr. Smith 15 wish to provide me a full and detailed 16 report, I will seek instructions to 17 release the reports I possess. 18 Further, the expert I've retained to 19 review the CT scan wishes the material 20 be sent to him in Ottawa, and I -- and 21 if it's acceptable to Dr. Chuang, I'd 22 be pleased to discuss it further." 23 So rightly or wrongly, Mr. Renaud's 24 response is that -- is that he's disinclined to provide 25 you with the reports of his medical experts citing --
1301 citing the -- the failure to provide him with a more 2 fulsome report from -- from Dr. Smith, if I -- if I read 3 that accurately, is that right? 4 MS. TERRI REGIMBAL: Yes, that's what it 5 looks like in this letter. 6 MR. MARK SANDLER: And -- and again, 7 whether that position was -- was right or not, it -- it 8 appears that -- that this was almost a me-first -- a me- 9 first situation where he wanted to have something more 10 complete, as he alleges, from -- from Dr. Smith before he 11 released the reports. 12 And you felt that you had given him all 13 that you had from Dr. Smith, and -- and wanted to have 14 his reports to enable you to proceed to evaluate them, do 15 I have that right? 16 MS. TERRI REGIMBAL: Well, yes, but by 17 the time Mr. Renaud was writing the letter, he also had 18 the opportunity to meet with Charles Smith and spend as 19 long as he wanted with him getting whatever details he 20 was looking for that were missing from the post-mortem 21 report. 22 So I -- I think that, perhaps, I felt that 23 that wasn't necessarily the real reason that he was 24 refusing to give me the reports because I was aware that 25 he had had phone calls and a lon -- a lengthy meeting
1311 with Dr. Smith for the very purpose of flushing out the 2 post-mortem report. 3 MR. MARK SANDLER: Okay. 4 COMMISSIONER STEPHEN GOUDGE: I get the 5 sense, Ms. Regimbal, that you like, Mr. Gilkinson, take 6 the view that once the Crown expertise is frozen, and you 7 thought from the meeting that it effectively was frozen, 8 that then calling for the defence to disclose is fair? 9 MS. TERRI REGIMBAL: Yes. 10 COMMISSIONER STEPHEN GOUDGE: And that is 11 the premise of your suggestion, Mr. Gilkinson? 12 MR. BRIAN GILKINSON: That's -- that's 13 correct. I don't know if it's frozen by a verbal 14 conversation that may make defence counsel a witness if 15 the expert says something different in the judicial 16 proceeding -- 17 COMMISSIONER STEPHEN GOUDGE: Yes, the 18 question is what has to happen for it to be frozen then. 19 MR. BRIAN GILKINSON: Yes. 20 COMMISSIONER STEPHEN GOUDGE: And there 21 may be some doubt about any particular fact circumstance, 22 including maybe the Crown saying, Well, I am not going to 23 go out and get another expert. 24 MR. BRIAN GILKINSON: I'm happy with 25 that. I think quite frankly, there's a legitimate
1321 expectation on trying to get some agreement on 2 contentious issues and further a search for the truth 3 after there's no suggestion that there's any strategic 4 advantage to be gained by nondisclosure. 5 And once the Crown experts are committed 6 to writing and in a thorough fashion, I think that we 7 need reciprocal disclosure. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: All right. 12 MS. TERRI REGIMBAL: And if I could just 13 add -- 14 MR. MARK SANDLER: Yes, of course. 15 MS. TERRI REGIMBAL: I didn't really ever 16 feel I had any authority to direct Dr. Smith to do 17 anything. And the fact that I had just received an 18 autopsy report didn't strike me as unusual at all. I 19 didn't expect to receive a fulsome, you know, six (6) 20 page explanation of what all the findings meant. 21 And I suppose I was taken aback by Mr. 22 Renaud's comment about not giving -- about his lack of 23 full disclosure because, of course, I was a great 24 believer in full disclosure back in those days, and I -- 25 I gave everything I had. I kept passing it on.
1331 But I felt that this was something that 2 didn't exist. I didn't have -- I didn't have the 3 authority to order its production and that Mr. Renaud had 4 been given ample opportunity to get all the answers he 5 needed from having direct access to Dr. Smith. 6 MR. MARK SANDLER: And maybe one (1) of 7 the sticking points here was, as you say, you didn't feel 8 you had the authority to take -- to get any more from Dr. 9 Smith then he was obligated to provide and which was 10 typically prov -- 11 MS. TERRI REGIMBAL: Yes. 12 MR. MARK SANDLER: -- provided. And Mr. 13 Renaud felt that notwithstanding that oral conversation 14 with Dr. Smith wasn't adequate for his purposes? 15 MS. TERRI REGIMBAL: Yes. 16 MR. MARK SANDLER: And we actually see -- 17 just so that you don't feel that I've -- I've failed to 18 note it -- that at the following tab, Tab 24, you -- you 19 say much of what we've already described in your response 20 to Mr. Renaud where you say in the third paragraph: 21 "Regarding the comments in your letter, 22 I find them puzzling. You know I've 23 bent over backwards to facilitate 24 disclosure. You know, as well, I 25 cannot give what I do not have. You've
1341 received Dr. Smith's pathology report, 2 and you spent almost two (2) hours 3 talking to the doctor about the case. 4 This is my 6th homicide case, and 5 pathologists do not issue separate 6 reports apart from their autopsy 7 report." 8 And you've already reflected those 9 sentiments here, and they're consistent with what you 10 said back in February of 1990, right? 11 MS. TERRI REGIMBAL: Yes. 12 MR. MARK SANDLER: Well, if we can move 13 from there. One (1) of the people that you did consult 14 with as the defence experts were being presented was Dr. 15 Smith by telephone, is that right? 16 MS. TERRI REGIMBAL: Yes. 17 MR. MARK SANDLER: And was he prepared to 18 speak to you and to -- and to assist you in that regard? 19 MS. TERRI REGIMBAL: If I was able to get 20 a hold of him -- because sometimes it was a problem to 21 get a hold of whichever doctor I might be trying to call, 22 because I just had usually the lunch break or a -- and 23 hour to an hour and a half to try and get a hold of them 24 Sometimes I would fax the report, because 25 Judge Dunn, thankfully, had actually allowed that the
1351 report be introduced. And -- and I do point out that 2 even as the trial was going in, and the Crown's evidence 3 was all on, and Dr. Duhaime, I think, was the first -- I 4 believe she was the first expert witness. 5 And I asked for her report, and defence 6 counsel actually opposed producing it even then, 7 indicating it was listener-client privilege. And that he 8 did not wish to introduce -- he did not wish to produce 9 Dr. Duhaime's report even after she'd given all of her 10 evidence. 11 And Justice Dunn, in the end, said he -- 12 you know, you're going to produce it. That was -- in the 13 end that was the decision. But I would normally be 14 probably fax the report to whatever doctor I was trying 15 to contact. 16 So yeah, I would try to get a hold of Dr. 17 Smith. It -- why I wasn't always able to get a hold of 18 the doctor, but if I did he was always very helpful and 19 happy to help me and bring out issues that maybe I hadn't 20 considered. 21 MR. MARK SANDLER: All right. Now when 22 you were cross-examining the various defence experts, in 23 part based upon advice that you were given from Dr. Smith 24 or Dr. Driver or Dr. Barker or whoever, did you ever 25 challenge the bonafidiness of -- of the defence experts
1361 as opposed to whether or not their evidence ought to be 2 accepted? 3 MS. TERRI REGIMBAL: When you say 4 bonafidiness, do you mean of their credentials? I mean, 5 I know that some of them may be -- may have not been an 6 active pediatricians and yet were testifying about issues 7 of pediatrics. 8 I do know there was one (1) incident with 9 -- with one (1) doctor where his -- I was unsure if his 10 resume was actually really reflective of the work he was 11 actually doing, and I -- I think I would have cross- 12 examined him a bit on that. 13 I -- if that's what you mean in 14 bonafidiness, yes, I might have said, Well, you know, 15 you're a biomechanical engineer, and yet you know, you've 16 --you've given testimony about -- about pediatric issues, 17 but yet you've never -- you've never worked as a 18 pediatrician, and you've never dealt with children day 19 after day. 20 You are -- have given evidence as a 21 neuropathologist, but you were never an Intensive Care 22 Unit doctor, and -- so you haven't seen children come in 23 day after day after day with bruising from falls, isn't 24 that correct? 25 So I mean, in that sense I would have
1371 challenged them. 2 MR. MARK SANDLER: I mean, were you 3 attacking them based on their honesty, is really what I'm 4 asking you? 5 MS. TERRI REGIMBAL: I remember there was 6 an exchange -- not with honesty regarding to the opinion, 7 but there was an exchange with one of the doctors about 8 an issue of what was written on his resume. 9 MR. MARK SANDLER: Okay. Do you remember 10 which doctor that was? 11 MS. TERRI REGIMBAL: It was Dr. Ommaya. 12 MR. MARK SANDLER: All right. And I'm 13 asking you that in -- in part -- well, I'll ask you, Dr. 14 Leetsma was one (1) of the defence experts. You were 15 familiar with him, were you not? 16 MS. TERRI REGIMBAL: Well, yes, because, 17 of course, in preparation for the trial, I had read his 18 book on pediatric pathology. 19 MR. MARK SANDLER: All right. I think 20 that -- 21 MS. TERRI REGIMBAL: And I had referred 22 to it. 23 MR. MARK SANDLER: Okay. 24 MS. TERRI REGIMBAL: In the course of 25 presenting my evidence, the chapter -- he has a -- had a
1381 chapter I recall, on Shaken Baby Syndrome which I was 2 referring to as authoritative. 3 MR. MARK SANDLER: All right. So -- so 4 there you were -- you were trying to limit his opinion or 5 qualify his opinion as opposed to challenging his 6 integrity or his expertise? 7 MS. TERRI REGIMBAL: Absolutely. The -- 8 the only time that integrity was even remotely challenged 9 was just with that one (1) instance with Dr. Ommaya in 10 relation to something on his resume, that's all. 11 MR. MARK SANDLER: Okay. 12 MS. TERRI REGIMBAL: But no, of course, I 13 mean, people like Dr. Leetsma, Dr. Ferguson, Dr. Horsham, 14 Dr. Gilles, I mean, in no way did I seek to challenge 15 their stature, their knowledge, their professionalism, 16 anything like that. 17 MR. MARK SANDLER: All right. The reason 18 I ask is because in another proceeding, and -- and I 19 won't put it up on the screen, but I'll simply read you 20 the -- the relevant portion. Dr. Smith was being asked 21 about a -- his work on the Dustin Case, and it's -- it's 22 another case that we've been examining here at the 23 Inquiry. And he said: 24 "This is a botched autopsy, [and then 25 he described that] how it should be
1391 filed in the -- in the garbage can. I 2 wouldn't accept this report from a 3 resident in a pathology. It's wrong 4 from the word go and so on." 5 And then he's cross-examined about whether 6 others have alleged that he's done shoddy work in the 7 past. Quote: 8 "Judges have said that about you, 9 you've done shoddy work. One (1) judge 10 -- I'm told by you -- one (1) judge 11 wrote that in his submission" 12 And then he says: 13 "I don't know, I don't know what he 14 wrote. That's Judge Dunn, who prior to 15 hearing the defence experts in fact, 16 told me on more than one (1) occasion, 17 private conversation how hasty he was 18 with the work I had done and others had 19 done at the hospital. 20 Q: But experts came in on that 21 particular case. Experts came in and 22 said you did shoddy work. 23 A: That's right. 24 Q: The gentleman from out west in 25 Winnipeg, what's his name, the expert
1401 out there that was flown in from 2 Winnipeg? 3 And that would be referring to Dr. Charles 4 Ferguson. 5 "A: The paid mouth. There's an expert 6 from Winnipeg who's regarded as a paid 7 mouth." 8 And that was his response. Did -- did Dr. 9 Smith ever communicate to you that kind of view of Dr. 10 Ferguson in the course of any input that you were 11 receiving from him? 12 MS. TERRI REGIMBAL: Never anything like 13 that. I mean when Dr. Ferguson came I was very impressed 14 with him. I never really was shaken in the fact that I 15 was impressed that he was a very knowledgeable, 16 experienced individual with a great deal to say on the 17 topic. 18 MR. MARK SANDLER: All right. Now you've 19 made reference to -- to both Dr. Ferguson and to Dr. 20 Leetsma. It's obvious in what you've said that you 21 regarded some or a number of the witnesses for the 22 defence as -- as impressive witnesses, is that fair? 23 MS. TERRI REGIMBAL: Yes, that's true. 24 MR. MARK SANDLER: Did they impact, 25 rightly or wrongly, on your confidence in the merits of
1411 the Crown's case? 2 MS. TERRI REGIMBAL: I think it's pretty 3 clear to say that they raised questions. And I think 4 from my perspective, one (1) of the main issues that they 5 were raising was the thought that they -- that small 6 falls could kill, and that they had seen deaths arising 7 from small falls. 8 Some of them saw things in the photographs 9 that Dr. Smith had said weren't there. Some of them 10 talked about bruising that they believed was current with 11 the time of the fall, but which in fact some of it 12 wasn't. 13 But, yeah, sure it caused me some issues, 14 and that's why I was on the phone to my cadre, a 15 prominent foremost expert saying, Well what about this? 16 Somebody's just put in a study, it show's 17 this. What -- what does this say? Does this -- does 18 this shake your opinion? Is the change your views on 19 things? 20 So I would have been calling and they -- I 21 was always being reassured though by my experts that were 22 on for the cro -- on the Crown witness roster that, No, 23 no, no this -- Amber did not die from that fall. 24 Okay, she didn't die from that fall. And 25 sometimes when I would cross-examine the experts -- see I
1421 would find out they didn't have all the information 2 either. They hadn't been provided with certain 3 information that weakened their opinion in their reports. 4 And that was a repetitive pattern as well. 5 So yes, it caused me to take a look at the case, to 6 rethink the case, to seek further information, which I 7 tried to do. But again, I had no reason to think that 8 Dr.'s -- Dr. Jeffery Barker, who was explained to me to 9 be one of the top ten (10) ICU Pediatric Physicians in 10 the world, and Dr. Driver, senior member of the SCAN 11 Team, and Dr. Charles Smith, a renowned Canadian 12 pediatric pathologist, I had no reason to not accept what 13 they would be telling me in response to these issues that 14 were being raised. 15 And in addition to that, I had evidence 16 that I felt was quite significant as the prosecutor, and 17 that was that there were some markedly different 18 explanations given by the babysitter for what happened. 19 And sure, anyone who is a trial lawyer 20 would know that when you have markedly inconsistent 21 statements about the event, that gives rise to possibly 22 an inference, of what we used to call consciousness of 23 guilt, and that that is something the Judge could have 24 taken into account. 25 And as regards to the facial bruising,
1431 it's important to remember as well, that the first 2 doctors who dealt with Amber -- well, first of all, the 3 ambulance attendant, he saw no visible injuries on 4 Amber's face. 5 Dr. Bronson, the attending Emerg 6 physician, he said he saw the bruise on her forehead. He 7 said he did not believe it to be recent and did not feel 8 it was connected in any way with the devastating head 9 injuries that Amber received. 10 And Dr. Purbi (phonetic), I think the 11 pediatrician, did a visual and manual check of Amber's 12 face and found no swelling and saw no related injuries. 13 A Dr. Sullivan, the surgeon, shaved 14 Amber's head and said there were no visible injuries. 15 Dr. Brunet, another attending physician, saw the bruise 16 on the forehead, and again, she didn't believe it was 17 recent. 18 So I had all of that information that 19 Justice Dunn was going to be before him to consider. And 20 what I found is a lot of the defence experts, for 21 example, they didn't realize there was a change in 22 history, and some of them, you know, found that to be an 23 important factor when looking at this type of situation. 24 COMMISSIONER STEPHEN GOUDGE: A change in 25 the babysitter's stories, is that what you mean --
1441 MS. TERRI REGIMBAL: Yes. 2 COMMISSIONER STEPHEN GOUDGE: -- by 3 "change in history"? 4 MS. TERRI REGIMBAL: Sure, because the 5 evidence would have led that the initial account at the 6 Emerg Department was that the child pushed away the 7 babyseater's -- babysitter's hand and fell or almost 8 jumped off the top of the stairs, didn't hit a single 9 one, fell on her head at the bottom. 10 Then the very same day, the second story 11 was recounted that the baby pushed the babysitter's hand 12 away, and Amber slipped down the stairs and hit every 13 single one (1). And then two (2) days later in the first 14 statement to the police, it was recounted that the baby 15 tripped and stumbled and fell and the initial statement 16 was, the babysitter wasn't sure if the baby's head hit a 17 stair, but that the baby landed on the top of her head at 18 the bottom of the stairs and fell over. 19 And then in a subsequent statement to the 20 police, a very detailed diagram was provided to the 21 police indicating that the baby fell forward, struck her 22 jaw on the third step, and the diagram had a line showing 23 that, and then fell onto the floor on the side of her 24 head and then rolled over and hit the other side. 25 And then when testifying the statement
1451 was, I don't know if the -- if Amber hit her head; I 2 blinked and didn't see what happened. I -- and, you 3 know, I -- I understand Justice Dunn was a -- as was 4 perfectly open to him, chose to find that, you know, 5 those inconsistencies were not significant enough, and he 6 found the babysitter to be a credible witness and that 7 was what he was entitled to do. 8 But from a prosecutorial perspective, you 9 know, one (1) of the -- when you say, "Was I shaken by 10 the defence witnesses or did it...", yes, I mean it 11 surprised me to hear what I was hearing because of what I 12 had been told by the doctors from Hospital of Sick Kids, 13 and not just what I had been told; I'm sure I must have 14 read at least fifty (50) or (60) articles on falls and 15 that they, you know, small falls don't kill. 16 I had gone to every article. I had read 17 it over. I had done research. I had read Dr. Leetsma's 18 book cover to cover, so I had done a fair bit of 19 literature research myself before ever starting it. 20 As the witnesses testified, new studies 21 went in that I would read over and take into 22 consideration. And -- but yeah, I mean, it did cause me 23 some concern in the sense that I felt a need to follow-up 24 and to ask the doctors, Well, you know, what about this? 25
1461 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: All right. So, what I 3 -- what I hear you saying and kind of drawing it all 4 together is that although -- although there were some 5 impressive witnesses that testified for the defence and 6 it caused some concern about -- about the case, you still 7 believe that -- that grounded in the evidence, you had 8 lots of scope for maintaining and arguing the Crown's 9 case? 10 MS. TERRI REGIMBAL: Well, I think that's 11 absolutely true. I mean, in addition, and part of the 12 Crown's case was that this baby was sick; it was vomiting 13 that day. 14 Part of the Crown's case was that the 15 babysitter had been up till 3:30 in the morning watching 16 videos and was tired. 17 Part of the Crown's case was that Amber 18 was very afraid of the stairs and that Amber only ever 19 crawled up and down them, and she was afraid to go up and 20 down them herself. 21 So there was a lot of other factors at 22 play in my ongoing assessments about whether should I be 23 continuing, should I be continuing. 24 But I -- so all of these things were at 25 play and it was up to the Judge to determine, you know,
1471 what interpretation he wanted to put on the facts; what 2 findings of credibility he wanted to make. 3 And at the end of the case despite some of 4 the issues or shortcomings pointed out by some of the 5 defence witnesses about Dr. Smith, I still felt it was 6 open to Judge Dunn to accept that Dr. Smith did the 7 autopsy. He handled the brain, the skull. He said there 8 were no linear fracture. He said there was no subgaleal 9 bruising. It was still open to Justice Dunn to have 10 accepted that, especially in light of some of that other 11 collateral evidence. 12 MR. MARK SANDLER: Okay. 13 COMMISSIONER STEPHEN GOUDGE: This may 14 not be a fair question to ask you, Ms. Regimbal, but you 15 had, very commendably, done a whole lot of your own 16 research about shaken baby and had -- 17 MS. TERRI REGIMBAL: Yes. 18 COMMISSIONER STEPHEN GOUDGE: -- 19 determined that the literature, or at least there was a 20 significant body of literature, that said small falls 21 like this cannot inflict fatal injury. 22 MS. TERRI REGIMBAL: That's correct. 23 COMMISSIONER STEPHEN GOUDGE: If that 24 body of literature had said as some have told us it does 25 today, small falls can cause that kind of head injury,
1481 and you had been left with Dr. Smith saying firmly this 2 fall cannot -- this kind of fall cannot cause the fatal 3 injury, what difference, if any, would that have made? 4 MS. TERRI REGIMBAL: Had I been able to 5 ascertain that information prior to commencing my trial, 6 I most definitely would have sought a second opinion from 7 another pediatric pathologist. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 Thanks. 10 MR. MARK SANDLER: Okay. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: Having articulated, 14 you know, your state of mind as a result of -- of the 15 parade of defence witnesses as they came forward, what 16 was your expectation at the end of the evidence and 17 submissions as to what Justice Dunn would likely do? 18 MS. TERRI REGIMBAL: I -- I -- actually, 19 I didn't really know. I didn't know what he would do. 20 I mean, I wasn't surprised that he 21 acquitted. I felt it was open to him. And clearly 22 reputable medical evidence had been led to state this 23 child could have died from the fall. 24 And given the fact that he discounted the 25 variances in the histories did not obviously attach a lot
1491 of significance to the child being sick or the babysitter 2 being tired or the fact that the child was afraid of the 3 stairs and approached them cautiously. He was -- you 4 know, it was a perfectly -- that was his decision. His 5 decision was well reasoned and a very thoughtful 6 decision. 7 But when I was standing up making my 8 submissions, you know, I believed still that there was a 9 possibility that he could find the babysitter guilty. 10 MR. MARK SANDLER: Okay. If you'd go to 11 Tab 40, and Tab 40 is a letter that Dr. Smith directed to 12 the College of Physicians and Surgeons as a result of a 13 complaint that had been made against him in this case. 14 And if you'd look at page 2 of this 15 document, first paragraph. And he says that: 16 "I'm one (1) of the physicians who was 17 required to testify in this case. It 18 was my opinion that in the absence of a 19 credible history, Amber's death from 20 head injury was non-accidental in 21 nature. Furthermore, it was my opinion 22 that this pattern of injuries could 23 best be explained on the basis of the 24 Shaken Baby Syndrome. 25 In spite of several days of vigorous
1501 cross-examination by the defence 2 counsel for Amber, Mr. Gilles Renault, 3 my opinion did not waiver. Furthermore 4 [and this is the portion that -- that I 5 wanted to cite for you] on two (2) 6 occasions during my week of testimony, 7 the Judge, Patrick Dunn, discussed my 8 evidence with me at length. He 9 repeatedly indicated to me that he 10 believed Amber (sic) to be guilty and 11 that he believed the opinions provided 12 by Dr.'s Barker, Driver -- " 13 MR. WILLIAM MANUEL: Mr. Sandler, I 14 hesitate to rise, but you keep referring to the accused 15 as Amber and it's -- 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: Oh, I'm sorry, SM 19 instead of Amber, thank you very much. Don't hesitate to 20 rise, if -- if that's why you're rising. Thank you. 21 "He repeatedly indicated to me that he 22 believed SM to be guilty and that he 23 believed the opinions provided by Dr.'s 24 Barker, Driver and me." 25 Was it ever indicated to you during the
1511 conduct of the trial that Justice Dunn had spoken to Dr. 2 Smith and indicated to Dr. Smith that -- that SM was 3 guilty? 4 MS. TERRI REGIMBAL: No, it was not. 5 MR. MARK SANDLER: And had that been 6 communicated to you, would you have done something about 7 it? 8 MS. TERRI REGIMBAL: Well most 9 definitely. I mean -- I would have told Gilles Renault 10 right away, and I would have hopefully asked him to join 11 me in an application for a mistrial. 12 MR. MARK SANDLER: All right. And if I 13 could just take you -- it's not in your volume but it's - 14 - it's very similar in nature -- to PFP303004. 15 16 (BRIEF PAUSE) 17 18 MR. MARK SANDLER: Actually, I see it's 19 ten (10) to 1:00. Why don't -- why don't we dig it up 20 over the lunch break and we can continue on. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 We'll come back then at five (5) past 2:00. 23 24 --- Upon recessing at 1:50 p.m. 25 --- Upon resuming at 2:05 p.m.
1521 2 THE REGISTRAR: All rise. Please be 3 seated. 4 COMMISSIONER STEPHEN GOUDGE: Mr. 5 Sandler...? 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Yes. Thank you, 9 Commissioner. 10 Ms. Regimbal, before lunch I was taking 11 you to PFP303004, which is now on the screen. And this 12 is an interview -- these are interview notes of an 13 interview conducted with Dr. Smith by Jane O'Hara of 14 McLean's Magazine. And we see at the top of page 10 it 15 says -- and this Ms. O'Hara: 16 "Okay. Now somewhere along the line 17 when I was doing my research, somebody 18 mentioned to me that during the trial, 19 that you'd said -- and I'm not you'd 20 said it, but that the judge apparently 21 told you during the trial that SM was 22 guilty? 23 That's right. He told me that on 24 several occasions. 25 Was it in open court?
1531 No. I'll tell you when it first 2 occurred -- and this is all off the 3 record. 4 Sure. 5 I testified I flew up there being told 6 I would be on the stand for a few 7 hours. I can't remember the days of 8 the week. I ended up there on Friday 9 or something, and then -- so I was 10 flying back to Toronto for the weekend, 11 and at that time both Canadian and Air 12 Canada or Air Ontario flew up to 13 Timmins. At lunch time just as we were 14 going to break, Justice Dunn asked me 15 how I was returning to Toronto. I 16 indicated to him unbeknownst to me, he 17 was aware that the Canadian flight was 18 I on was cancelled, he made 19 arrangements for me to have my ticket 20 moved to the other airline. Then he 21 made arrangements for me to sit with 22 him on the airplane. And I walked onto 23 the airplane, I was stunned when I 24 found myself sitting next to this man 25 who immediately began discussing the
1541 case with me. 2 O'HARA: At this point you're flying 3 back down to Toronto? 4 Yeah, I'm in the middle of my testimony 5 and I felt extremely uncomfortable 6 discussing the case with him. And he 7 said it's fine because I will base my 8 decision on the evidence in court. He 9 said I can be hearer of the fact and 10 trier of the fact and this is fine. 11 And that was the first occasion in 12 which he told me that SM was guilty as 13 sin. 14 And he made arrangements when I flew 15 back Sunday afternoon to go back and 16 testify some more. I found myself, once 17 again, sitting beside him on the 18 airplane, which I found extremely, 19 extremely unusual. So that was the 20 conversation came from there. I don't 21 know how to handle the manner of the 22 situation. It was absolutely bizarre. 23 As soon as I got there to Timmins on 24 the Sunday night and the Crown 25 attorney, not the one who was
1551 prosecuting the case, but the senior 2 Crown, I guy named Dave Thomas, met me 3 at airport. I said, this thing has 4 happened to me, I don't know to 5 interpret it, what does it mean? And I 6 told Thomas this, and I said, Do I 7 continue, what do we do here? And he 8 said, There's [if we can just continue 9 on to the next page] -- and he said 10 there's been a number of problems in 11 the case and that he would simply take 12 it under advisement and that I would 13 simply -- I was to simply to go on and 14 testify. 15 Q: Wow, I think that's dynamite. Were 16 you actually blown away when you read 17 the judge's seventy-five (75) page 18 judgment. 19 SMITH: I never bothered reading the 20 judgment. 21 Q: You didn't?" 22 And so on. Now you've already said you 23 were unaware during the trial of any allegation on Dr. 24 Smith's part that he was talking to the Judge and the 25 Judge was indicating how guilty SM was.
1561 Did Dave Thomas, your Crown attorney ever 2 communicate to you that that had been alleged to him? 3 MS. TERRI REGIMBAL: No, he didn't. And 4 had it occurred like that I have no doubt that he would 5 have told me about the conversation so that I could take 6 the appropriate action. 7 MR. MARK SANDLER: Okay. Now lets move 8 to July the 25th of 1991. Commissioner has heard that -- 9 that Justice Dunn delivered lengthy reasons for judgment 10 acquitting SM on that date. 11 Were you there when the judgment was 12 actually delivered? 13 MS. TERRI REGIMBAL: No, I wasn't. 14 MR. MARK SANDLER: All right. 15 MS. TERRI REGIMBAL: I had relocated to 16 Timiskaming from Hillerbree (phonetic) Crown's office in 17 March of 1990, and had a very busy, busy caseload. I was 18 the only lawyer in the office at that time. 19 MR. MARK SANDLER: Okay. Were you made 20 aware as to whether or not Justice Dunn had given any 21 direction as to whether the judgment be sent to the 22 Hospital for Sick Children? 23 MS. TERRI REGIMBAL: Somehow I was told 24 that we were to send, or that a judgment -- a copy of the 25 judgment was to be sent to the Hospital for Sick Children
1571 for their review and consideration in light of what he 2 had mentioned by way of criticisms of Dr. Smith and the 3 Hospital for Sick Children. 4 MR. MARK SANDLER: All right. Now 5 recognizing that the judgment did not favour the Crown, 6 nonetheless, how did you regard it at the time? 7 MS. TERRI REGIMBAL: I have to be honest 8 that I don't have any independent recollection of 9 actually reading the judgment. I -- that's really the 10 best I can say to you. I mean it -- obviously then it 11 did not trouble me greatly. I don't think that I would 12 have been surprised by the outcome, but I was -- I was 13 probably at that point either close to being involved in 14 a first degree murder prosecution in front of a jury 15 myself, or preparing for it and I don't remember it 16 having any impact me one way or the other. 17 MR. MARK SANDLER: All right. Have you 18 read it since? 19 MS. TERRI REGIMBAL: Oh yes. 20 MR. MARK SANDLER: All right. 21 MS. TERRI REGIMBAL: I'm sure I read it, 22 don't get me wrong. I'm sure I read it -- 23 MR. MARK SANDLER: You just don't 24 independently recollect the circumstances right now. 25 MS. TERRI REGIMBAL: No, seventeen (17)--
1581 MR. MARK SANDLER: Fair enough. 2 MS. TERRI REGIMBAL: -- years ago I just 3 don't independently recollect reading that judgment over. 4 Although I -- I'm sure I would have read it with great 5 interest. 6 MR. MARK SANDLER: Okay. Well, and -- 7 and have you read it again recently? 8 MS. TERRI REGIMBAL: Yes, I have. 9 MR. MARK SANDLER: All right. Well one 10 (1) of the basis on which it was dismissed in the -- in 11 the public forum was -- was with a comment that was -- 12 was made by Dr. Cairns, that -- that the judge didn't 13 understand the medical evidence. 14 Well you knew the medical evidence -- 15 MS. TERRI REGIMBAL: Yes. 16 MR. MARK SANDLER: -- and you've read the 17 judgment. 18 MS. TERRI REGIMBAL: Yes. 19 MR. MARK SANDLER: Is there any concern 20 on your part from having read that judgment as to whether 21 Justice Dunn understood the medical evidence that had 22 been tendered in that case? 23 MS. TERRI REGIMBAL: No, none at all. 24 MR. MARK SANDLER: All right. And 25 similarly, did he appear to accurately summarize the
1591 relevant evidence and the issues that arose at trial? 2 MS. TERRI REGIMBAL: Yes. I mean, I 3 think overall it's a very lengthy judgment. Obviously 4 from a Crown's perspective there might have been some 5 evidence that I had thought was more important or that I 6 had thought he might have placed greater reliance on. 7 I can't really go through it, it's a very 8 lengthy judgment, but I thought it was well reasoned, I 9 thought it was intelligent, and he -- he certainly had 10 the basis in the evidence that was presented before him 11 to come to the conclusions he did. 12 MR. MARK SANDLER: Okay. Now if I can 13 direct you to Tab 34, which is PFP153148. 14 15 (BRIEF PAUSE) 16 17 MR. MARK SANDLER: And this is a -- an 18 internal note by Dr. Mian and it has to do with setting 19 up a meeting, and it says, October 16th, 1991, it refers 20 to your name: 21 "Interested in pursuing a two (2) hour 22 meeting to review what could have been 23 done better." 24 And -- and then there's some discussion 25 about dates.
1601 Were you approached by the Hospital for 2 Sick Children to -- to attend a meeting to discuss the 3 Amber Case? 4 MS. TERRI REGIMBAL: Apparently yes, I 5 was. 6 MR. MARK SANDLER: All right. 7 MS. TERRI REGIMBAL: I don't have any 8 independent recollection of this conversation with either 9 Dr. Mian or his secretary. I don't really have any 10 independent recollection of that. In fact, until I saw 11 the notes I -- I didn't actually recall the meeting. But 12 I do have some vague recollection of the meeting now, 13 having read over the notes. 14 MR. MARK SANDLER: All right. Then if 15 you'd look within Tab 33 to page 6 within -- just make 16 sure my addition is right -- page 6 within the Tab. It's 17 PFP153149. 18 And again, this appears to be an email on 19 the bottom half of the page from Dr. Mian to Brenda Rau 20 and it reflects, in the last paragraph: 21 "Following the Judge's decision and 22 comments in the Amber case we decided 23 to organize a conference to review this 24 case, what it has to teach us, and how 25 we can do things better in the future.
1611 We are inviting you to attend this 2 conference which will be held on 3 January 30th [and so on]. 4 The conference will be attended by 5 interested members of the SCAN program: 6 Charles Smith, Terri Regimbal, the 7 prosecuting Crown Attorney, Mary Hall, 8 another Crown Attorney." 9 Does that assist in refreshing your memory 10 as to -- as to the purpose that was presented as the 11 rationale for this meeting? 12 MS. TERRI REGIMBAL: Yes. And I have a 13 memory of -- of Mary Hall being there because she was a 14 senior female Crown Attorney. I may have even had a call 15 with her before going down to try and flush out what the 16 purpose was of it. 17 But I mean, I wasn't surprised given 18 Justice Dunn's comments that they would want to take a 19 look at this, because to me, at that point, it would have 20 been in keeping with my impression that the Hospital for 21 Sick Children in Toronto was an excellent, deservedly 22 renowned institution that wanted to improve practises 23 wherever it could. 24 MR. MARK SANDLER: Okay. And if you go 25 to the next tab, Tab 34, which is PFP153134, we see
1621 collected within this tab are -- are a variety of notes 2 that appear to relate to this conference that -- 3 conference that took place on January the 30th of 1992. 4 And have you had occasion to review these 5 notes? 6 MS. TERRI REGIMBAL: Yes, I have. 7 MR. MARK SANDLER: I'm going to ask you 8 about some features of the notes. Dr. Huyer and Dr. 9 Driver were here and they were already asked about their 10 recollections of the meeting. 11 We see under the child's name and date of 12 birth that the referring agency is: 13 "Crown Attorneys and Hospital for Sick 14 Children staff. See attached list. 15 Others present. Post of the Amber 16 case. Reviewed trial and hospital 17 findings. Purpose: Damage control." 18 And I'll stop and ask you: What, if 19 anything, do you recall about damage control being 20 identified as the presenting problem or purpose of this 21 meeting? 22 MS. TERRI REGIMBAL: I can't recall that 23 term being used, and I'm not saying it wasn't, but my 24 understanding was the purpose was to try and see how the 25 process could be improved; that some of the criticisms
1631 Justice Dunn made could be addressed by changing how they 2 did business down at the Hospital for Sick Children. 3 And I felt a -- like I was pretty well the 4 junior person at the table and there were a lot of really 5 senior doctors -- and Dr. Mian, who I would have heard 6 present at child abuse seminars, and Mary Hall, who was 7 Senior Crown Attorney for Scarborough, and the other 8 Crown Attorney who was also much more senior than me and 9 -- that's the only dealing I ever had with the Hospital 10 for Sick Kids, was in relation to the Amber case. And 11 they had had a great deal of cases with them and so they 12 had a pre-established relationship with those people as 13 well. 14 MR. MARK SANDLER: Okay. And then you 15 see immediately underneath that, it says: 16 "Trial, twenty-one (21) days. Defence 17 twenty (20) odd experts." 18 And just stopping there for a moment. 19 Regardless of the total number of witnesses, that wasn't 20 quite accurate as to the number of experts that had 21 actually been called. 22 Am I right? 23 MS. TERRI REGIMBAL: It might have seem 24 like it but it's not actually. 25 MR. MARK SANDLER: Okay. And then at --
1641 and then immediately under it, it says: 2 "Judge 'strange' has rep. Family Court. 3 Known to be strange, not used to 4 criminal standards." 5 Do you know who made any or all of the 6 comments that are captured in that portion? 7 MS. TERRI REGIMBAL: Yeah, I don't have 8 an independent recollection of -- of having said that, 9 but I see it attributed to TR in a couple of locations so 10 I can accept that I might have said that Judge Dunn was 11 known to be strange or was strange, and I can elaborate 12 on that, if you wish. 13 MR. MARK SANDLER: Sure. 14 MS. TERRI REGIMBAL: Well, I think it's 15 important to understand that in no way was it meant to be 16 pejorative of his ability to try the case or of his 17 judgment because actually I found him to be an extremely 18 intelligent man, and I found that his decision was very 19 articulate and well-reasoned. 20 Really, what the comment related to -- and 21 I also want to acknowledge, you know, it wasn't 22 appropriate to mention it in this forum sixteen (16) 23 years ago -- and it wasn't -- it didn't assist in what 24 was trying to be accomplished, but it really was only in 25 relation to certain idiosyncrasies that I would have seen
1651 or experienced or heard of in the duration of the trial. 2 MR. MARK SANDLER: All right. It says: 3 "Not used to criminal standards" 4 Can you help us out in what that might 5 have been referring to? 6 MS. TERRI REGIMBAL: Well, I think it was 7 clear in the course of the trial that, you know, His 8 Honour -- well, we knew he had a -- he was from the 9 Family Court. We knew that he was working in the Family 10 Court, for one (1) thing, when he came to us in Timmons. 11 There were some rulings that were, you 12 know, unexpected, and for example, you know, I had to 13 have a voir dire on a police officer's physical 14 observations of the accused's height and weight. 15 Now, that ought not -- you know, in my 16 respectful perspective, I shouldn't have had to have 17 that, and defence counsel stood up and objected and His 18 Honour wanted us to figure it out and wanted us to work 19 it out, but, of course, we couldn't work it out because I 20 said I don't need a voir dire for physical observations; 21 this isn't -- these are not utterances. 22 And defence counsel says, Well, my view is 23 you do, and so I had -- I -- His Honour ruled that I had 24 to have a voir dire. You know, he did allow two (2) 25 statements of the babysitter to go in at the best of the
1661 defence which, again, is normally not permitted, and that 2 was over my objection, and it wasn't that I objected to 3 the contents going in; from a Crown perspective, it was 4 just two (2) more inconsistent statements. 5 My objection was because the statements 6 were not taken in compliance with the Young Offender's 7 Act. And right on the record I stated my concerns that, 8 That's fine for defence counsel right now to stand up and 9 say, 'I want these statements in', but should those 10 statements become important in Your Honour's 11 deliberations and should they become a key piece of 12 evidence that you may have found -- used to come to a 13 finding of guilt, you know, a year down the road another 14 defence counsel is going to stand up and say, 'That was 15 negligent of defence counsel to introduce these two 16 statements which clearly were inadmissible under the 17 Young Offender's Act'. 18 And, you know, His Honour had a very 19 expansive view and said, I want as much evidence in front 20 me, and so, yes, he let those statements in. And there 21 were other items of evidence that normally I wouldn't 22 have expected to have been introduced as exhibits or to 23 be allowed to be brought forward but, again, it was just 24 in keeping with an expansive perception or -- or 25 perspective from the bench that His Honour wanted as much
1671 evidence as he could possibly have -- as much 2 information, actually, he didn't even always call it 3 evidence, as much information as he possibly could have. 4 And -- and, you know, there was other 5 issues -- maybe some character evidence that ought not to 6 have gone in, from my perspective, but, you know, that 7 was -- His Honour wanted to deal with it that way and I'm 8 -- I would suspect that that might -- that that would 9 have been what I was referring to when I made that 10 comment. 11 Again, it probably wasn't particularly 12 helpful, given the focus of what we were doing there. 13 MR. MARK SANDLER: Okay. 14 MS. TERRI REGIMBAL: And I should 15 probably, you know, not have entered into saying anything 16 at all about that, but that's the way it was sixteen (16) 17 years ago. 18 MR. MARK SANDLER: All right. And if 19 you'd move through the tab to the 4th page, PFP153138. 20 These are also notes that someone has prepared referable 21 to this conference, and -- and we see about a third of 22 the way down the first page: 23 "TR said Judge was strange; the Family 24 Court Judge not used to criminal 25 standards; led character evidence."
1681 And you've already given your explanation 2 for those comments. Then it says: 3 "This judgment is likely to be passed 4 around, therefore, damage control." 5 And -- 6 MS. TERRI REGIMBAL: Mm-hm. 7 MR. MARK SANDLER: And does this assist 8 you at all as to whether you contributed to that aspect 9 of the discussion or someone else did or can you say? 10 MS. TERRI REGIMBAL: I don't really 11 believe I said that. And my only logic for that is I had 12 no reason to say that. First of all, had no reason to 13 believe that -- that they had to worry about damage 14 control. 15 I looked at the meeting as a meeting to 16 improve their process, not to necessarily respond to any 17 public interest or public views of the hospital. 18 MR. MARK SANDLER: Okay, and if you'd 19 look to the next page, page 2 of the notes, we see about 20 half of the way down the page, MM -- 21 MS. TERRI REGIMBAL: Dr. Mian. 22 MR. MARK SANDLER: Dr. Mian. 23 MS. TERRI REGIMBAL: And yeah. And she 24 pretty well was the Chair of this conference. 25 MR. MARK SANDLER: All right.
1691 MS. TERRI REGIMBAL: She was running it 2 pretty well. 3 MR. MARK SANDLER: And it reflects: 4 "Review of functioning, need to 5 document opinions obtained, more likely 6 to believe person who documents an 7 interaction. No precedential value re: 8 medical evidence. Family Court Judge 9 at bottom of heap. Error may be 10 brought up in another case. Acceptable 11 to say we disagree with judge's 12 judgment." 13 And just to be clear, here too, is a 14 reference to Family Court Judge, but it says: 15 "Family Court Judge at bottom of heap." 16 Did you say anything like that? 17 MS. TERRI REGIMBAL: I didn't say that at 18 all, because I thought Justice Dunn was an extremely 19 bright man, and I thought his reason, his judgment was 20 very well-reasoned. My view and thoughts are as that Dr. 21 Mian said this -- whole two paragraphs. 22 Especially because at the end, when it 23 says: 24 "Acceptable to say we disagree with 25 judge's judgment."
1701 That's the doctors who took that view. It 2 was the doctors -- they didn't -- they didn't agree with 3 it. They felt this was just an example of experts 4 disagreeing. I don't think that there was any thought at 5 that meeting that their doctors had made an error. The 6 thought was the judge's -- their view was that the judge 7 was mistaken. 8 MR. MARK SANDLER: Well, you raise an 9 interesting point that I was going to ask you about at 10 the end, but now's as good time as any. We -- we heard 11 from Dr. Huyer that a -- that a conference of this 12 nature, if it were run today would be -- would be 13 somewhat different. 14 He said that based upon the -- the medical 15 evidence that was available in this case, he would have, 16 from the mid '90s on, have characterized this as a fall 17 case. Just given the nature, the quantity of -- the 18 nature, quantity and location of the bleeding, for 19 example, and its unilaterality. 20 And we've also heard from Dr. Pollanen, 21 the Chief Forensic Pathologist that -- that this is a 22 fall case, and we've heard from Dr. Whitwell, that as far 23 as she's concerned, this is a -- this is a fall case, 24 consistent with the history that was provided. 25 Now, that raises a question whether or not
1711 based upon your review of the notes or your independent 2 recollection, there was any introspection at that meeting 3 about the substantive issue at the trial. In other 4 words, apart from the process issues, documentation, 5 communication, access to the autopsy report and so on, 6 that appeared to have been discussed -- 7 MS. TERRI REGIMBAL: Yes. 8 MR. MARK SANDLER: -- at the conference 9 call. Was there any discussion, as far as you can 10 recollect or you can see in the notes, about the -- the 11 merits of the substantive opinions that were being 12 advanced by The Hospital for Sick Children. 13 MS. TERRI REGIMBAL: Could I start at 14 PFP153134/1, and go through tho -- the notes, just to -- 15 MR. MARK SANDLER: Sure. 16 MS. TERRI REGIMBAL: -- make some points? 17 To be clear, I think you couldn't paint everyone with the 18 same brush at that meeting. And I think that's reflected 19 in some of the notes. I think that some doctors may have 20 been interested in discussing the medical evidence and 21 that was based on my review of these notes, and I can 22 point out why as we go through. 23 MR. MARK SANDLER: Sure, please do. 24 MS. TERRI REGIMBAL: I see that on the 25 first page, point Number 4 is:
1721 "Avert mind to defence position. Know 2 what defence position is." 3 So, I didn't take that as meaning no 4 defence position so we can overcome defence position. I 5 took that, that they had a genuine interest in knowing 6 what the defence experts might think about a case in the 7 future. 8 And then if we flip over to PFP153135/1, 9 and this goes back to where I say that -- those comments 10 under Dr. Mian's name, in no way reflected what I thought 11 about this either; that it had no precedential value or 12 that the judge was just wrong. 13 Because the -- under the heading: 14 "Why was Case Lost? 15 I think it's pretty clear that I would 16 have answered that question, and I think I would said, 17 The defence raised reasonable doubt with their expert and 18 called experts from the states. The judge was critical 19 of procedures, lack of documentation of discussion, 20 little organized review of material. 21 Pretty -- it's pretty clear that I would 22 have said those things, and I didn't say the judge was 23 confused, he didn't understand. I said, No, the defence 24 raised a reasonable doubt with the medical evidence they 25 presented 'cause that's exactly how I perceived and
1731 assessed the case. 2 So again, I think I was pointing out that 3 there were differing medical opinions that raised a 4 reasonable doubt in relation to his prosecution. And 5 then on PFP1531352, again I think I raised the issue, at 6 the top line: 7 "Would SCAN like examples of witness 8 statements" 9 Because again that was one (1) of the 10 problems that we had is that -- well, we perhaps did not 11 have sufficient information as to what the doctors were 12 saying, and I -- there was some discussion about whether 13 or not the doctors shouldn't be producing witness 14 statements to pad out reports and findings. 15 And I see that it was Dr. Mian who said 16 that's not necessary. And then again, we say here, it 17 says: 18 "Things change, you can alter opinion." 19 So perhaps that's some evidence that they 20 were looking or considering the defence witnesses expert 21 evidence when they say things change, you can alter your 22 opinion. I don't know. That's one (1) interpretation 23 that you could put on that. 24 If you go down below again, that's got -- 25 where it says transcripts from other experts; copyright
1741 thirty (30) cents a page. Well, that had to come from 2 me. That had to be an offer that I was offering them the 3 opportunity to obtain the transcripts from the defence 4 experts because I would have had those proceedings in my 5 office. 6 I would had the trial proceedings because 7 as the adjournments occurred transcripts were made, and 8 the Crown was provided with a copy of those. And then I 9 think if you go onto the next page, PFP153135/3. Again 10 down at the bottom, Dr. DuHaime and Dr. Charles 11 Ferguson's names are written in the bottom lefthand 12 corner of that sheet. And it says: 13 "Review judgment and let her know who 14 we want." 15 And again, that would have been a 16 reference to me providing them with transcripts of the 17 defence experts, so. 18 MR. MARK SANDLER: And just stopping 19 there. Were you ever asked for transcripts of the 20 defence experts? 21 MS. TERRI REGIMBAL: I can't tell you. 22 Honestly, I don't remember. I have no independent 23 recollection. All I know is that I was making it 24 available for them. And I do -- yeah. So there must 25 have been some discussion as well that I don't have any
1751 independent recollection, but just directly above that on 2 the page where it says: 3 "The neuropathology involved 4 dumbfounded by evidence from US 5 experts. Charles sought opinion from 6 US expert." 7 Now, that was news to me. See, and that 8 was one (1) of my concerns sometimes that there was a lot 9 of these, you know, coll -- collegial sidebar discussions 10 and consultations that I didn't know about until they 11 either came out in evidence or had a meeting like this 12 where it says that Charles Smith sought some input from 13 some US Expert. 14 I -- I never heard that. I never knew 15 that. I would have been interested in speaking to the US 16 expert and maybe subpoenaing them as a witness, had I 17 known that. And then if we go on to PFP153138/2, there 18 is a line saying that there was criticism of reaching an 19 opinion before reviewing all the findings. 20 So I think that might -- that could be 21 taken as possibly accepting the criticism because one (1) 22 of the criticism's Justice Dunn had was that Charles 23 Smith seemed to say they had enough clinical evidence to 24 make a diagnosis of Shaken Baby Syndrome before he ever 25 entered the picture.
1761 And then Dr. Driver and Dr. Barker saying, 2 Well, no, we looked at Dr. Charles Smith to make the 3 diagnosis of shaken baby after the pathology. And I 4 think Justice Dunn found a lack of communication between 5 them, and that perhaps, they were making their 6 conclusions before they were discussing other people's 7 findings as fully as they should. 8 And if you look onto the next page, again, 9 PFP153138/3, I think I would have -- was highlighting 10 some of the issues that were in Justice Dunn's report, 11 and I was indicating that, you know, they had a lack of 12 information in their file about consultation between 13 doctors; that the neuropathology report wasn't noted in 14 the file; that they were contradicting each other in 15 their evidence sometimes. 16 And then it looks like Charles Smith 17 interjected and said he feels he was misunderstood. But 18 then I indicated that he had, in fact, been criticized 19 for not approaching the autopsy with the open -- an open 20 mind, so again, Hey, I'm the only one who mentioned that. 21 But again, there was a sense at the table 22 that people respected Dr. Charles Smith and that he had a 23 very high position in their, you know, view of expertise 24 in this area. 25
1771 (BRIEF PAUSE) 2 3 MS. TERRI REGIMBAL: But I su -- that -- 4 those would be the only lines that might have shown that 5 there was -- it was more than just that "they're wrong, 6 we're right, we-don't-want-to-know-about-it attitude" at 7 the meeting. 8 MR. MARK SANDLER: Yeah, and I -- in 9 fairness, I hadn't meant to suggest that because I think 10 one can see indications, and we actually heard this in 11 the evidence, that -- that there was some serious 12 discussion about -- about the criticisms that had to do 13 with process -- open mindedness, communication, access to 14 the autopsy report, and the like -- but if one thinks 15 about the substantive issues that Justice Dunn was 16 directing his mind to, for example, whether -- whether 17 these kinds of falls can kill -- 18 MS. TERRI REGIMBAL: Yes. 19 MR. MARK SANDLER: -- or whether or not 20 one can have serious brain injury in the absence of focal 21 injury or -- or external obvious bruising. 22 There doesn't appear to be, from the 23 notes, and you correct me if I'm wrong, any discussion 24 about the substantive merits of the opinions that are 25 being expressed by the defence.
1781 Is that a fair comment? 2 MS. TERRI REGIMBAL: I -- I think that 3 would be a fair comment. I -- I would think that -- 4 there was certainly, as far as I can recall and what is a 5 vague recollection, there's no open criticism of the 6 defence experts. But there was this sense that 7 reasonable experts can disagree, but this -- they had 8 their perspective from the Hospital for Sick Children. 9 And I'm sure your call about all -- Dr. 10 Barker, Dr. Driver, Dr. Chuang, Dr. Smith all indicated - 11 - you know, small falls can't kill. We would never have 12 seen this in our experience. It's not found in the 13 literature. And I'm -- even Dr. Barker said, I -- I 14 don't even know of any other colleagues who have had such 15 an experience. 16 So I think that they were still viewing it 17 from their own experience and considering their own 18 experience as a legitimate, if not more legitimate, than 19 the experience of the defence experts, because clearly 20 some of the defence experts had credible examples of 21 cases where small falls had caused devastating internal 22 head injuries. 23 COMMISSIONER STEPHEN GOUDGE: So your 24 sense, Ms. Regimbal, was at the end of the meeting the 25 doctors were as firm in their view about whether small
1791 falls could or could not kill as they were when they had 2 given evidence. 3 MS. TERRI REGIMBAL: Absolutely. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Okay. And if can go 7 to the last page of -- of the notes, PFP153110, at page 8 1. And again, it's not clear whose notes these -- these 9 were, but Item 4 reflects: 10 "Crown would have appreciated a 11 documented opinion from each doctor." 12 And again, that -- that accords with what 13 you've told the Commissioner earlier and -- 14 MS. TERRI REGIMBAL: Yes. 15 MR. MARK SANDLER: -- undoubtedly ex -- 16 reflects something that you did express at the meeting, 17 is that fair? 18 MS. TERRI REGIMBAL: Yes, absolutely. 19 MR. MARK SANDLER: And then there's a -- 20 there's a notation here: 21 "I think the Crown and police did a 22 sloppy job. This was an ill-prepared 23 case." 24 First of all, was that sentiment ever 25 expressed at the conference and your view --
1801 MS. TERRI REGIMBAL: Not verbally. I'm 2 sure I would have remembered that. I would have risen 3 from my seat in indignation. 4 MR. MARK SANDLER: And I take it -- I 5 take it, since we're in a very public process, that -- 6 that you don't agree with -- with that characterization. 7 MS. TERRI REGIMBAL: No, I -- I worked 8 extremely hard on the case. I felt I had done an 9 extremely diligent job. I sought out all kinds of 10 articles and -- and made repeated visits to Toronto to 11 sit with the doctors and meet with them and prepare for 12 evidence-in-chief, and no, I -- I don't think it was an 13 ill-prepared case. 14 And even upon reading the transcripts with 15 trepidation, I'll tell you, when I first opened them up 16 to read twenty (20) years later, I -- I still don't think 17 it was ill-prepared. I think that I did a competent job 18 as the prosecutor. 19 And as for the police. You know, sure 20 there were some mistakes made, but I don't know in a case 21 like this that there was anything else they could have 22 done that would have answered the main issue of the 23 trial, which was, Do small falls kill? And, you know, is 24 that sufficient to raise a reasonable doubt that in 25 exceptional cases small falls can cause devastating
1811 closed internal head injuries with little visible 2 external trauma. 3 MR. MARK SANDLER: Okay. Now -- 4 COMMISSIONER STEPHEN GOUDGE: Can I just 5 ask a question, Mr. Sandler? 6 MR. MARK SANDLER: Yes. 7 COMMISSIONER STEPHEN GOUDGE: Did you 8 ever have any discussions with your Crown colleagues as a 9 result of this case? 10 Because obviously the Crowns were now in 11 the very difficult position of knowing that whatever the 12 HSC expertise said, there was expertise out there to 13 contradict it. 14 MS. TERRI REGIMBAL: Yes. 15 COMMISSIONER STEPHEN GOUDGE: And was 16 there ever any discussion that you know of about whether 17 shaken baby cases should be proceeded with in the same 18 way or should be proceeded with differently as a result 19 of what clearly was a divided view in the medical 20 community about one (1) of the fundamental issues in a 21 shaken baby case? 22 MS. TERRI REGIMBAL: In that timeframe, 23 again going back as far back -- like Dr. Duhaime and the 24 group in Philadelphia who were doing these studies, they 25 were really considered a fringe group investigating --
1821 COMMISSIONER STEPHEN GOUDGE: Sort of 2 outriders? 3 MS. TERRI REGIMBAL: Yes. And I was 4 actually contacted by other Crowns who were doing shaken 5 baby cases, and I would send them all of the articles 6 that defence had introduced at Amber's case for their own 7 perusal to prepare as they saw fit. And if they wanted 8 transcripts, if I had them, I would send them. 9 And I know even in the course of my own 10 case, I got some transcripts on a shaken baby case that 11 Mr. Bradley had done. In antic -- either as Dr. Charles 12 Smith was testifying or in anticipation of leading 13 Charles Smith's evidence, I was able to get those 14 transcripts from that case and it involved a twenty (20) 15 month old child. 16 And so likewise, when I was contacted by 17 colleagues, I would send them all of the articles from 18 Dr. Duhaime or Dr. Thibeault, Dr. Ommaya. That would be 19 pretty well the end of it. I wouldn't -- I was busy 20 enough without -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 MS. TERRI REGIMBAL: -- following up, but 23 I certainly did do that. I can think of probably at 24 least two (2) or three (3) occasions that I was contacted 25 and forwarded those articles on.
1831 And also I felt that the Hospital for Sick 2 Children were Dr. Smith's employer. That's how I saw 3 them, and I felt that they had this -- they had Justice 4 Dunn's decision and that they would do what they saw fit 5 with it. 6 You know, if I -- in retrospect, if I had 7 to sort of make these same decisions, I probably ought to 8 have sent a copy to the Coroner's Office as well. But I 9 primarily saw Dr. Charles Smith as an employee of the 10 Hospital for Sick Children -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MS. TERRI REGIMBAL: -- even though he 13 did the autopsy under the auspices of the Coroner's 14 Office. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: You've heard the 18 initiatives that were introduced by Mr. Gilkinson when he 19 was testifying a little bit earlier in the day and -- and 20 some of those initiatives are obviously designed to -- to 21 provide some sort of fail-safe so that -- so that if a 22 witness' evidence -- an expert witness' evidence in one 23 (1) of these cases is overtly -- adversely commented 24 upon, there's a mandated process that would bring that to 25 the attention of the Ministry at large.
1841 And do you see that as a welcome 2 initiative, having regard to your experience here? 3 MS. TERRI REGIMBAL: Oh, very much, 4 because even back in '88 to '90, we didn't have the 5 computer and the Internet. We weren't all in constant 6 touch. Right now it's very easy. A Crown can just send 7 a global email, If anyone has had any dealing with a 8 shaken baby case, you know, please, you know, give me a 9 call; let's see if you have anything I could use. 10 But I think that beyond that, having 11 something formalized would be an excellent step. 12 MR. MARK SANDLER: All right. Now one 13 (1) other question about the conference that took place 14 at the Hospital for Sick Children. 15 Did you have any sense or understanding as 16 to whether the participants, including Dr. Smith, had 17 reviewed Justice Dunn's decision before the conference 18 took place? 19 MS. TERRI REGIMBAL: Well, I think they 20 must have because some of the points and criticisms made 21 in Justice Dunn's judgment were brought up and 22 specifically referred to the lack of documentation; the 23 lack of -- of discussion between the different 24 physicians. They were discussed. It's obvious from the 25 notes, so some people had to have read that.
1851 MR. MARK SANDLER: Okay. Now, with the 2 benefit of -- of everything you've learned in this case, 3 and subsequently, as a senior Crown counsel, I'll ask you 4 the same question that I asked Mr. Gilkinson, could you 5 briefly outline for the Commissioner what, in your view, 6 went right or wrong in this case and -- and do you have 7 any recommendations to the Commissioner that might 8 advance the issues that we're dealing with here? 9 MS. TERRI REGIMBAL: Well, as for what 10 went right, the right decision was arrived at, and we see 11 that a lot more clearly now in 2008 than in 1991, but 12 clearly that system worked in that sense. 13 14 (BRIEF PAUSE) 15 16 MS. TERRI REGIMBAL: I don't know if 17 standards or practices have changed at various hospitals 18 in the sense of trying to keep a central file of one (1) 19 -- of a patient's records, as opposed to keeping pockets 20 in different departments; that was sometimes a bit 21 troubling and difficult, you might not get all of the 22 documentation. 23 MR. MARK SANDLER: Now, just stopping 24 there for a moment, because we haven't talked about it, 25 but one (1) of the -- one (1) of the frustrations that I
1861 understand you had in connection with this file is that 2 as you dealt with each of the experts from the Hospital 3 for Sick Children, you had to deal with uneven practices 4 about what -- what records existed, when they were being 5 produced, and -- and that was an ongoing issue as the 6 trial continued, am I right about that? 7 MS. TERRI REGIMBAL: Yes, I think that's 8 pretty accurate. I always had this vague unsettling 9 sense that I didn't have everything, and that would be 10 born out by speaking with someone who say, Oh, well, so 11 and so came in and had a consult, and I wouldn't know 12 about so and so, or, you know, the search warrant did not 13 ob -- like we search-warranted the records, but we didn't 14 get everything. 15 And so there were areas where there might 16 be consultations and notes that were not disclosed to me, 17 which meant I could not disclose them to the defence. 18 And I don't want to think that that's just the Hospital 19 for Sick Children because I think even when we search- 20 warranted the files at St. Mary's in Timmins, we didn't 21 get the x-rays. 22 And so there is, perhaps maybe, the keeper 23 of the medical records needs to understand the importance 24 when they receive a subpoena on a criminal matter of 25 checking every single department. Being able to, either
1871 through a computer system or even manually, check every - 2 - every department that treated the child, the doctor's 3 records and files. 4 Everything should be checked because 5 sometimes doctors don't dictate their notes immediately 6 and you might execute your search warrant the day after 7 and that clinical report might not go in until two (2) 8 later or a week later, if someone is waiting for 9 secretarial services. 10 So that's a bit of a difficulty and I 11 think that could easily be rectified by training for the 12 keeper of the records to know what to look for when 13 they're getting a subpoena, and it may already have been 14 done. 15 I don't want to suggest changes that have 16 been taken -- already taken place. But, you know, it was 17 a bit of a frustration because the case could have 18 stronger, the case could have been weaker, depending on 19 what was out there that I didn't have and that I didn't 20 know about. 21 And that's what I would say on -- on -- in 22 the issue with the difficulties, not -- but I was 23 frustrated and I think that sense is clear in some of my 24 letters to -- to Mr. Renault where I'm like, I've given 25 you everything I have; I don't know if there's anything
1881 else out there, but I just always had that -- that sense 2 that maybe there is. 3 And -- and even now, I -- I -- when I go 4 to speak with pathologists on homicide cases, I know they 5 have things that the police haven't got and -- but I know 6 enough to ask them and say, You know what, can I have 7 your handwritten notes? Can I have the diagram that you 8 had beside you when you were doing the autopsy in which 9 you marked the injuries? Did you take any photos for 10 yourself, apart from the photos taken by the police? 11 And I know to ask those things because I 12 will always get something that wasn't in my original 13 Crown brief. And I think that when we talk about setting 14 up a system whereby we have senior experienced Crown 15 counsel to assist younger Crowns who might be taking on 16 these prosecutions, that's the kind of thing I would hope 17 that that younger counsel would know to do. 18 I'd have to say that -- I didn't know when 19 I went to meet with Charles Smith that maybe there was a 20 lot more somewhere that I didn't have. I didn't know to 21 ask. Just as he assumed he had given me everything I 22 needed, I probably assumed he had given me everything 23 that he had. 24 And I suppose he may have assumed or the 25 doctors may have assumed that if I wanted more, I would
1891 know to ask. And here I was assuming they knew I needed 2 everything, so surely they must give me everything. 3 And that's perhaps just a bit of conflict 4 that we see between the medical world and the legal 5 world. I think too that pathologists and doctors, not 6 all experts, are often much more willing to take strong 7 positions when they're speaking to you. 8 And then when they come to testify, things 9 may not be quite as you expected. And I had that 10 experience in this case, as well, whereby some of my 11 conversations with my medical experts were like, No, you 12 know this is shaken baby, it can't be anything else. 13 And then when people would testify it 14 would be kind of watered down a little bit, Well, it's 15 inconsistent with the fall. And I understand that as the 16 you know the way they may speak in the medical circles, 17 but that's why I have the practice now of getting it in 18 writing, so I know exactly -- I know exactly what I'm 19 going to base my prosecution on and the defence knows 20 exactly what they have to defend against. 21 But it still happens. That -- that's not 22 something that was just in 1988 to 1990 because I had a 23 very recent, within the last couple of years, a second 24 degree murder prosecution where I meant -- went to meet 25 the pathologist and he made some very strong utterances
1901 and I knew he would never say that on the stand so I 2 immediately went back to my office and wrote him and 3 said, I need to know exactly what you're going to say. 4 And you know, I got the response back so 5 then I went -- that's what I have to work with now. I 6 can assess my case better. And it wasn't in relation to 7 the other case that I -- I referred to where I sent the 8 forty (40) questions, but I knew -- that's just an 9 experience that you know they're not going to say that in 10 the stand, just a sense of it. 11 So I think it's very important that we not 12 only have a way to capture a fulsome overview of what the 13 experts are going to say, but something that can be 14 transmitted for disclosure purposes, because it's equally 15 important for the defence to know what they have to meet, 16 as it is for me to know what I have to prosecute with. 17 MR. MARK SANDLER: Okay. 18 MS. TERRI REGIMBAL: And I -- I do 19 understand that doctors are in the business of trying to 20 save peoples lives, and that they're often rushing hither 21 and yon and you know, not always easy for them to make 22 notations of heard consultations in a file, but I would 23 hope it would be possible if something is being red 24 flagged as a suspicious possible criminal injury, that 25 they might make an effort to take that five (5) minutes
1911 and document a conversation and place it in the right 2 file with the -- and maybe they're doing that already. 3 Again, I don't want to be critical. I 4 don't know how things are in 2008 in all the major 5 hospitals, but I think that would be very useful. 6 MR. MARK SANDLER: Okay. 7 MS. TERRI REGIMBAL: And lastly, I think 8 I would have to say that the case could have been very 9 different even in 1988 to 1990 if the defence reports had 10 been disclosed to me in advance of the trial -- of the 11 Crown's case. 12 I'd like to think I would have been fair 13 enough to realize that there are either issues that 14 needed to be explored by way of a second independent 15 opinion or possibly maybe even affected my whole 16 assessment about whether the case should be prosecuted. 17 And I say that because even though I did 18 get the report and then would have an hour or an hour and 19 half to review it and prepare cross-examination, many 20 times the doctors hadn't been given all of the 21 information. 22 And part of my cross-examination always 23 was starting off, Did you have the photos? Lots of them 24 hadn't had -- didn't have the autopsy photos. Were you 25 aware there were four (4) inconsistent statements? Most
1921 of them were not aware there were four (4) inconsistent 2 statements. Were you aware that, you know, the child was 3 apprehensive? No, they weren't. 4 Some of them, you know, they would say, 5 maybe this child's too -- too old. Sixteen (16) months 6 is too old, and then I would be saying, while cross- 7 examining, Well are you aware that there have been cases 8 at Hospital for Sick Children where as up to twenty-one 9 (21) months where children have been shaken to death? 10 You see, all of those conversations could 11 have occurred before court and maybe they would have 12 said, You know, I'm aware of that and -- but I -- you 13 have to consider this. And I'm just saying all these 14 things could have affected my view on it. 15 It could have affected their view. You 16 don't want to be doing it while you're on your feet in 17 court. It wasn't perhaps -- didn't have as big an impact 18 as it might have had I had the luxury of being able to 19 meet with the defence counsel, my expert, their expert, 20 and hash these things out; narrow the issues. 21 What are we -- what are we arguing about? 22 What's the -- what's the crux of the conflict between the 23 evidence? That would have been much more effective, much 24 more productive, and I think would have enhanced the 25 whole process a lot more.
1931 MR. MARK SANDLER: Okay. Thank you very 2 much. Mr. Bradley, you've been very patient. 3 MR. EDWARD BRADLEY: Yeah. 4 MR. MARK SANDLER: We'll turn to you now 5 if we may. And -- and I'm going to take you to the 6 Sharon case. And we've heard evidence that Sharon died 7 in Kingston on June the 12th of 1997, at the age of seven 8 and a half (7 1/2) years, that on June the 26th, of that 9 same year, Ms. Reynolds was charged with second degree 10 murder. She was committed to stand trial on November the 11 19th of 1998, and remained in custody until April the 12 26th, 1999, when she was released on the consent of the 13 Crown. 14 Up until that point in time, had you been 15 involved in that case, in any way? 16 MR. EDWARD BRADLEY: Definitely not. 17 MR. MARK SANDLER: When did you first 18 become involved in the case, and how did that come about? 19 MR. EDWARD BRADLEY: The first direct 20 involvement was either at the end of February or the 21 beginning of March of 1999. 22 23 (BRIEF PAUSE) 24 25 MR. EDWARD BRADLEY: In any event, the
1941 first direct involvement I had was at the end of February 2 or the beginning of March 1999 and -- 3 MR. MARK SANDLER: I believe and I don't 4 mean -- do you mean 2000 because -- 5 MR. EDWARD BRADLEY: Oh sorry, 2000. And 6 in fact, I would think it was probably the beginning of 7 March because there was a phone message I had from Ms. 8 Hawthorn, who was the lead counsel for the defence, and 9 it was dated the 1st of March, saying that she had heard 10 that I was perhaps going to be taking over the case. 11 MR. MARK SANDLER: All right. And what 12 was the status of the case at that point in time? In 13 other words, how far had it progressed along? 14 MR. EDWARD BRADLEY: When I took it over, 15 we were hurrying to get ready for applications, pre-trial 16 motions which were starting in the early part of April of 17 2000, and they continued into May of 2000. 18 So I had basically a month to try and 19 bring myself up to speed with a case that had been going 20 on for about two and a half (2 1/2) years, and also at 21 the same time try and prepare to respond to a number of 22 defence applications and a couple of the Crown 23 applications that we were bringing. 24 Certainly as far as animal involvement, 25 there was no question that it was -- after the second
1951 autopsy, it was after Dr. Smith and Dr. Wood had changed 2 their opinions, and they agreed that there was some 3 animal involvement. So I was aware of that. 4 MR. MARK SANDLER: All right. So -- so 5 you were aware of the -- the history of how the forensic 6 opinions on the case had -- had evolved over time, 7 through the first and through the second autopsies? 8 MR. EDWARD BRADLEY: Yes. 9 MR. MARK SANDLER: All right. And at 10 that point in time when you first came onto the file, had 11 you been advised as to whether the Crown had reviewed the 12 case based upon that evolution in opinion evidence and 13 determined whether it should proceed or not proceed? 14 MR. EDWARD BRADLEY: I was aware. I 15 can't give you an exact date, but I was aware fairly 16 early on, when I was raising concerns about the animal 17 involvement and whether that had been considered. 18 I was aware of a meeting which happened. 19 I -- in 1999 and I believe in November of 1999, and I was 20 told that Jim Stewart, Mac Lindsay, Bob Pelletier, who's 21 now a Supreme Court Judge -- or Superior Court Judge -- 22 but at the time, all three (3) of those individuals were 23 very experienced Crown counsel and ones that I had a 24 great deal of respect for, and I had been told they had 25 reviewed it and decided there was still sufficient to
1961 continue to prosecute the case. 2 MR. MARK SANDLER: All right. And if 3 you'd look at the overview report, which is -- which is 4 the first item contained in your binder, in front of Tab 5 1 -- 6 MR. EDWARD BRADLEY: Yes. 7 MR. MARK SANDLER: -- at page 105, and 8 this is 144453. We actually see a reference at 233, just 9 to orient you to -- to apparently a meeting that took 10 place in terms that you've described in November of 1999 11 at the Holiday Inn and it lists the participants which 12 include some of those who you identified in your 13 testimony a moment ago. 14 "They reviewed the Crown's case and 15 decided to continue full steam ahead. 16 Still all sorts of evidence." 17 And just stopping there for a moment. Did 18 you have some understanding that the case for the 19 prosecution was going full steam ahead at that point in 20 time, in part because it was perceived that there was 21 other circumstantial evidence that supported the case 22 against Ms. Reynolds, apart from the forensics? 23 MR. EDWARD BRADLEY: Yes. Yes. 24 MR. MARK SANDLER: And -- and if you'd 25 look to the next page at 106, and I know again this
1971 proceeds -- precedes your involvement but you see at 2 paragraph 237 that in response to the defence position 3 that this charge ought to be withdrawn, Mr. McKenna sent 4 a memorandum to Ms. Hawthorn saying that Ms. Ferguson 5 would be prosecuting the case as he was retiring. She 6 had arranged a meeting with Dr. Chiasson and Wood and 7 would disclose anything new. 8 And he stated: 9 "Although I believe the case against 10 your client is one with a reasonable 11 prospect of conviction, I will advise 12 Ms. Ferguson to have the case reviewed 13 by another senior counsel to avoid any 14 possibility that we have or are acting 15 with tunnel vision." 16 And did you understand that the review 17 that was being referred to by Mr. McKenna was -- was the 18 review that apparently took place in November in 1999, to 19 which a number of senior Crowns attended? 20 MR. EDWARD BRADLEY: That's my 21 understanding, yes. 22 MR. MARK SANDLER: All right. And he 23 makes reference that this case should be reviewed by 24 another senior Counsel to avoid any possibility that 25 we're acting with tunnel vision.
1981 Do you see that systemically as a good 2 practice in -- in a difficult case such as this? 3 MR. EDWARD BRADLEY: Absolutely. I think 4 it's -- it's very important in a case where there are 5 conflicting opinions; there's conflicting versions of the 6 evidence; conflicting differences even within -- the same 7 opinion is changing from over a period of time, from your 8 Crown expert witnesses, that I think it's -- it's a very 9 good idea to have outside experienced counsel. 10 And when you were talking with Mr. 11 Gilkinson about some of the recommendations, and having a 12 committee is one (1) of the recommendations the Attorney 13 General is making, and certainly, I couldn't do anything 14 but support that. 15 MR. MARK SANDLER: Okay. If you'd go 16 with me now to Tab 3 of your binder, and this is 17 PFP087924 at page 1, and this is a confidential memo from 18 Detective Sergeant Andy Bird. 19 And stopping there, he was one (1) of the 20 investigators on this case from the Kingston Police 21 Service. Am I right? 22 MR. EDWARD BRADLEY: In fact, he was 23 referred to as the Case Manager because he was the senior 24 investigator. 25 MR. MARK SANDLER: Okay. And the
1991 memorandum is directed to you and to Assistant Crown, 2 Jennifer Ferguson, and it's dated April the 18th of 2000, 3 and he says: 4 "I'm writing this short note out of 5 profound concern for the Louise 6 Reynolds matter. Eighteen (18) to 7 twenty (20) hour work days have been 8 the all to common reality of this 9 investigation since 1997." 10 This is PFP087924. 11 12 (BRIEF PAUSE) 13 14 MR. MARK SANDLER: Through the magic of 15 modern technology, we'll give you the document -- 16 COMMISSIONER STEPHEN GOUDGE: We have a 17 backup. 18 MR. MARK SANDLER: -- nonetheless. Okay. 19 Next would have been Morse Code. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: So I was reading the 23 memorandum and it says: 24 "It's taken its toll on all police 25 officers involved. I'm sure to degree
2001 -- to some degree, it has affected your 2 office as well. However, of late I 3 have detected a certain air of 4 animosity between the Crown and the 5 police. I have also noted a tinge of 6 hostility between the involved Crowns 7 and sadly I've noted some bickering 8 amongst the police officers themselves. 9 If we are to be successful we have to 10 work as a team. We have to respect 11 each other's input and views. 12 Make no mistake, the right person, 13 Louise, is on trial. If we want 14 justice to be served and her found 15 guilty, it's an absolute must that we 16 get back on track and work towards this 17 common goal. 18 It would seem that the pre-trial 19 motions to this date have not really 20 gone as planned. The police officers 21 that have testified all share a sense 22 of frustration, that they've been left 23 hanging in the wind without Crown 24 support. 25 Of particular concern to the police,
2011 and I'm sure the Crown, is the conduct 2 of Judge Lally. Very informed sources 3 indicate that his actions at the pre- 4 trial are not isolated incidents. It 5 is these source's opinions, non-police, 6 that if the right people were informed 7 of his mental instability, he would not 8 be on the bench. This I put to you as 9 a grave concern and something for the 10 Crown's Office to address. The 11 potential for a mistrial at every bend 12 in the road with this man is a very 13 real possibility. 14 On the plus side, if, and I'm told it's 15 likely, this trial does not go ahead 16 until fall or next spring, fate might 17 dictate that he will not be available 18 and we would be blessed with a Judge 19 whose faculties are intact. I'm told 20 there's no doubt that at lease Louise's 21 first two (2) statements will make the 22 grade and that she was lawfully 23 arrested. I'm also advised that common 24 sense has prevailed and yet another 25 police officer will not be required to
2021 relate, essentially, the same 2 information." 3 And then he reflects some personal 4 details, and he says: 5 "Hopefully in the near future we can 6 sit down and discuss our shared 7 concerns. I definitely would like to 8 touch on the ones I've related to in 9 this memo. Please don't take offence 10 to what I've written, it's from the 11 heart and with a common goal in mind." 12 How did you feel when you received this 13 memorandum with its contents as -- as outlined? 14 MR. EDWARD BRADLEY: Surprised. 15 MR. MARK SANDLER: All right. Why 16 surprised? 17 MR. EDWARD BRADLEY: Because I didn't 18 share them. Number 1, I thought we were doing reasonably 19 well, from the Crown's perspective, with the pre-trial 20 motions. 21 For example, we were successful in getting 22 most of the statements we wanted in; that was a ruling 23 made by Justice Lally. We were successful in opposing a 24 number, if not the majority, of the applications by the 25 defence, and I thought things were going reasonably well
2031 in that regard. And in fact, at the end of the day I -- 2 I would think that we were about 90 percent successful, 3 from the Crown's perspective, as far as the pre-trial 4 motions were concerned. 5 MR. MARK SANDLER: Now -- now just 6 stopping there for a moment. The pre-trial motions may 7 not have been decided at this point, or some or all of 8 them may not have been decided as of April the 18th, but 9 what you're reflecting is that -- is that there -- there 10 was no cause to believe that -- that they were off the 11 rails, so to speak. 12 MR. EDWARD BRADLEY: No, there was 13 nothing in that regard from my perspective. 14 MR. MARK SANDLER: All right. So I 15 interrupted you, you go ahead. 16 MR. EDWARD BRADLEY: Okay. And, of 17 course, I had known Judge -- Justice Lally since I had 18 come to Napanee in November of 1988 and I didn't have any 19 particular concerns about Justice Lally. 20 I didn't have any concerns with regards to 21 the way in which Ms. Ferguson and myself were working 22 together as co-counsel on the -- the case. And in fact, 23 just to ensure that was accurate, I spoke to Ms. Ferguson 24 within the last month or so and she confirmed that my 25 view was an accurate one (1), that there wasn't any
2041 animosity between us. 2 And I personally wasn't aware at that 3 point of any animosity between the police and the Crown, 4 certainly, from my perspective. I hadn't lived with the 5 case for two and a half (2 1/2) years, as -- as the 6 police had. I was an outsider in the sense that I was 7 not from the County of Frontenac; I was brought in from 8 another county, albeit the adjoining county. 9 I hadn't worked on a regular basis with 10 the Kingston Police Service. In my jurisdiction it's all 11 OPP. And so I -- I can imagine that there was some 12 concern that I was an outsider asking a whole bunch of 13 questions about the case and it might have caused some 14 concern, but I didn't perceive that at the time. 15 MR. MARK SANDLER: All right. You've 16 described the fact that you had known Justice Lally for a 17 long time. There was no cause for concern in that 18 regard; that the Crown was by all appearances doing well 19 on the pre-trial motions and that you seemed to be 20 relating well to your junior Crown counsel. 21 But here you've got this perspective 22 that's being articulated by Detective Sergeant Burn that 23 -- Bird -- 24 MR. EDWARD BRADLEY: Bird. 25 MR. MARK SANDLER: -- that makes
2051 reference to mental instability of the trial judge and 2 animosity or hostility between -- between the Crowns. 3 What -- what, if any, concerns did you have about the 4 perspective of the police in this case or objectivity? 5 MR. EDWARD BRADLEY: Rightly or wrongly, 6 I didn't respond to this in writing. My best 7 recollection is that within a few days after receiving 8 this, I got on the phone and spoke with Detective 9 Sergeant Bird. I assured him that there was no problem 10 from my point of view with my co-counsel. I tried to 11 reassure him that we'd keep him advised of what was 12 happening as far as the court proceedings were concerned 13 because he was involved in some other homicide 14 prosecutions in Provincial Court. 15 I also tried to assure him that I thought 16 the evidence was going reasonably well and reasonably 17 favourable to the Crown. And I completed ignored his 18 comments with regards to Justice Lally. I didn't even 19 want to go there. 20 MR. MARK SANDLER: Okay. 21 Now if we can go to the overview report 22 and I'm going to take you to page 120, at 144453. 23 MR. EDWARD BRADLEY: What's the paragraph 24 number? 25 MR. MARK SANDLER: And it's paragraph 272
2061 and following. 2 MR. EDWARD BRADLEY: Okay. 3 MR. MARK SANDLER: Do you have that? 4 MR. EDWARD BRADLEY: Yes. 5 MR. MARK SANDLER: And simply pointing 6 up, since you made reference to the pre-trial motions, 7 that we see that Justice Lally presided over the pre- 8 trial motions heard in April. 9 On May the 4th, Justice Lally ruled there 10 were no Charter breaches in relation to the statements 11 which he made. 12 On June the 26th, Justice Lally dismissed 13 defence motions for trial by Judge alone and a change of 14 venue. 15 And -- and I guess that's referable to 16 what you had just told the Commissioner a few moments ago 17 that the pre-trial motions appeared to have gone fairly 18 well in April 2000, and ultimately you succeeded on -- on 19 significant features of them. 20 Is that right? 21 MR. EDWARD BRADLEY: That's correct. And 22 there were more than just three (3) or four (4) defence 23 pre-trial motions. I think there was closer to nine (9) 24 or ten (10) as I had indicated, and these are just some 25 of the key ones.
2071 MR. MARK SANDLER: Okay. 2 Now if you look at paragraph 277 on page 3 121, there was a Crown motion that was unsuccessful for 4 the production of defence expert reports. 5 And we see that at first instance in 6 February of 2000, Ms. Ferguson wrote to one (1) of the 7 defence counsel requesting the curriculum vitae of Dr. 8 Ferris and Dr. Dorion and all of their reports and expert 9 notes. 10 And then in March, the Crown filed a 11 factum requesting an order granting production to the 12 Crown of all reports and materials in support of the 13 expert opinions upon which the defence intended to rely. 14 And the grounds are set out at page 122, 15 and they're instructive from a systemic perspective, I 16 suggest. You reflected -- or the Crown has reflected: 17 "The defence has put forward the theory 18 that the dog did it. The Crown has not 19 received any particulars from the 20 defence in support of the theory other 21 than a one-page letter from Dr. Dorion. 22 In it, Dr. Dorion states he's viewed 23 the autopsy photographs and in his 24 opinion, there are over twenty (20) dog 25 bites visible in the photographs. To
2081 defer production of the report to the 2 hearing of this application until Dr. 3 Dorion or another expert takes the 4 stand to give evidence, would result in 5 the Crown seeking an adjournment which 6 would unnecessarily delay the trial 7 process. 8 A second consequence of failing to 9 produce the expert's report to the 10 Crown at this stage is that the Crown 11 might choose to stand down the accused 12 and resume cross-examination once the 13 experts have given evidence and the 14 reports are disclosed. 15 The non-granting of production of 16 defence expert's reports could also 17 lead to the Crown being required to 18 split its case. Without knowing the 19 particulars of the defence expert's 20 opinions, it would not be realistic to 21 expect the Crown to deal with the dog 22 evidence in the Crown's case; rather it 23 would be dealt with by way of rebuttal 24 evidence." 25 Difficult argument to succeed on in the
2091 absence of mandated Criminal Code provisions on 2 reciprocal disclosure I take it? 3 MR. EDWARD BRADLEY: Yes, that's correct. 4 We did have some case law, and I think there is the 5 Crown's application in the -- in the binder. 6 MR. MARK SANDLER: There is? 7 MR. EDWARD BRADLEY: And there's a couple 8 of cases, but there's no real -- at least at that time 9 there wasn't, and it's, I don't believe even at present - 10 - no real authoritative decision from an Appellate Court 11 or certainly from the Supreme Court of Canada indicating 12 that there should be reciprocal disclosure. 13 And this was a primary port -- importance 14 in this case because there were two (2) key experts, I 15 guess, from the defence perspective, at least as I viewed 16 it from the Crown. 17 And that was Dr. Ferris. At the time we 18 had zero reports from Dr. Ferris. From -- as far as Dr. 19 Dorion, he indicated he reviewed a number of photographs 20 and then gave a five (5) line -- at least the one (1) 21 page report, a five (5) line statement that in his 22 opinion all of the marks on the -- the body were 23 referable to -- to dog bites. 24 Well I -- I defy most people to define 25 that as an -- as an authoritative, substantiated expert
2101 report. Just making a bland statement of five (5) lines, 2 without any backing, to me is pretty meaningless and -- 3 and is not very instructive or helpful. 4 So from that perspective we had very 5 little, if anything, to support the defence position that 6 the dog did it, other than them saying that the dog did 7 it. 8 MR. MARK SANDLER: And -- and perhaps 9 it's stating the obvious, but leaving aside where the 10 legalities fall on whether the -- the judge should have 11 compelled disclosure, I take it that what I read out to 12 you reflected some of the policy reasons why in your view 13 reciprocal disclosure would have been important? 14 MR. EDWARD BRADLEY: That's correct. And 15 there's one (1) of -- that we didn't put in there, but 16 which was impressed upon as -- as time went on, and that 17 is Ms. Hawthorn, the lead defence counsel spoke to me in 18 person and also sent me a letter later on in the fall 19 urging me to reconsider and withdraw the charge. 20 Because she thought I was fair minded and 21 said a few nice things about me. But -- 22 MR. MARK SANDLER: Was she wrong about 23 that? 24 MR. EDWARD BRADLEY: I'll leave -- I hope 25 not. In any event, once again it's not very helpful that
2111 if you're asking the Crown prosecutor or the lead 2 prosecutor on the case to go to the extent of -- of 3 withdrawing the charge, and you're not prepared to give 4 them the most complete copy of the defence reports, then 5 it's almost a not-sequitur at that point, I would think. 6 MR. MARK SANDLER: Okay. We see at page 7 123 of the overview report, paragraph 280, that you wrote 8 to Ms. Hawthorn on May the 8th regarding the defence's 9 agreement to provide the Crown with a preliminary report 10 of Dr. Ferris, which the Crown had not yet received. 11 And then she faxed you a very brief report 12 from -- from Dr. Ferris. And we'll get into the 13 different reports from Dr. Ferris in a moment, but how 14 did it come about that -- that one (1) moved from the 15 Crown applying to court, ultimately unsuccessfully, for 16 reciprocal disclosure to some agreement on the part of 17 the defence, that -- that at least Dr. Ferris' 18 preliminary report would be provided to you? 19 MR. EDWARD BRADLEY: Even though Mr. 20 Justice Lally refused to order defence disclosure of 21 expert reports, he tried to encourage some sort of -- of 22 agreement to be arrived at between the defence and the 23 Crown, and said he urged us to try and cooperate in that 24 regard and urged that we arrive at some sort of middle 25 ground.
2121 MR. MARK SANDLER: Okay. 2 MR. EDWARD BRADLEY: So it was as a 3 result of that, and then subsequently talking with Ms. 4 Hawthorn that we arrived at this position. 5 COMMISSIONER STEPHEN GOUDGE: Do you 6 remember why he refused, Mr. Bradley? 7 MR. EDWARD BRADLEY: He refused because 8 he didn't feel that the law was such that he was in a 9 position that he could legally require the defence to 10 produce them. 11 COMMISSIONER STEPHEN GOUDGE: Was it a 12 Code-based set of reasons, or a Charter-based set of 13 reasons, or do you remember? 14 MR. EDWARD BRADLEY: It was based on the 15 case law, I believe; that there was no authoritative 16 position requiring the defence and -- to do it, and 17 unless he could be shown that the case law had advanced 18 to the stage or the Criminal Code required it, and we 19 couldn't produce anything from either of those aspects, 20 and so as a result, he declined. 21 MR. MARK SANDLER: Okay. 22 COMMISSIONER STEPHEN GOUDGE: But I take 23 from what you said, that his encouragement actually 24 worked. 25 MR. EDWARD BRADLEY: Yes, it -- to some
2131 extent, yes it did. Yes it did, no question. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Okay. If you'd go 5 with me to page 124 of the overview report -- 6 MR. EDWARD BRADLEY: Paragraph? 7 MR. MARK SANDLER: Paragraph 284 -- 8 MR. EDWARD BRADLEY: Yes, okay. 9 MR. MARK SANDLER: We see that in or 10 around June of 2000, Dr. Wood, who's the Forensic 11 Odontologist who provided one (1) of the reports, or two 12 (2) of the reports to -- to the Crown in this matter, 13 sent an email to David Sweet at the Bureau for Legal 14 Dentistry. And he stated in his email: 15 "Dear David, Can you give me the name 16 of the Crown from Saskatoon who 17 invigilated Dorion this year? If you 18 can also cite the case, that would be a 19 big help. I've received some 20 information from Stan Kogan about a 21 case Bob did ages ago in Northern 22 Quebec which has come under some form 23 of judicial review. It seems that Bob 24 may have cooked some data. The Crown 25 and cops in Kingston have asked me to
2141 do a hatchet job on Dorion, so any help 2 you can offer, in extreme confidence, 3 would be most helpful." 4 Then you see on June the 5th, Mr. Sweet 5 responded to the email providing him the name of the case 6 in Saskatoon, the name and contact information of the 7 Crown counsel, and asked Dr. Wood: 8 "Bob, please keep me informed of your 9 progress. I love this." 10 Can you help me out as to, first to all, 11 whether or not you instructed Dr. Wood, to do any sort of 12 a hatchet job on Dr. Dorion or did you otherwise have 13 conversation with him about investigative work in that 14 regard? 15 MR. EDWARD BRADLEY: Hatchet job was not 16 my phraseology. I think if you look at some of the other 17 memos that have been prepared of conversations with Dr. 18 Wood, he likes to use a particular types of phraseology. 19 For example, when I asked him about Dr. 20 Symes, he used terminology like "he's the go-to guy", 21 "he's the heavy hitter". And even within this email, 22 instead of talking about police, he uses the term "cops". 23 There's no question that I did speak to 24 him and asked him if he knew any background information 25 or anything that we could use for cross-examination.
2151 And if he knew of anything or he knew of 2 anybody that could assist us, that would assist in -- in 3 our cross-examination of Dr. Dorion, then I would 4 certainly want to hear it. And that's the context in 5 which that came about. 6 MR. MARK SANDLER: Okay. If you go to 7 page 126, Paragraph 290, we see that also in -- around 8 the same period, May the 31st of 2000, Ms. Hawthorn does 9 fax you a very brief report from Dr. Ferris, and it would 10 appear -- this is -- this is a shorter, later report that 11 Dr. Ferris had provided to the defence. And we then see 12 at paragraph 290, that in August 2000, you interviewed 13 Dr. Ferris. 14 Tell us how it came about that you 15 interviewed Dr. Ferris. Without getting into too much of 16 the detail of Dr. Ferris' opinion, perhaps you could give 17 us the bottomline that came from your discussion with Dr. 18 Ferris and what your state of mind was at that point. 19 MR. EDWARD BRADLEY: I had occasion to go 20 to Vancouver. A relative of my wife's was getting 21 married, and while I was out there I thought it might be 22 appropriate to see if I could interview Dr. Ferris. I 23 made defence counsel aware of my intentions to do this 24 and I, in fact, sent a letter to Dr. Ferris before I left 25 asking him if he would meet with me.
2161 We met in an interview room at the main 2 courthouse in downtown Vancouver. I had a Vancouver City 3 Police officer with me, and he was quite cooperative up 4 until the point when I was asking some questions and he 5 said, Well, that's explained on page 3 or page 4 -- I 6 can't remember right now which page it was. 7 But the report that we had before I went 8 out there was either a one (1) page or a one and a half 9 (1 1/2) page report, so I had no page 3 or page 4. And 10 he sort of held it up like this and I reached for it and 11 he saw me sort of reach out and he pulled it back and he 12 says, You have a copy of it, don't you? And I said, No. 13 And then he said, Oh, maybe I should speak 14 to defence counsel before we discuss this further [as far 15 as that report, he meant] and I don't think I should give 16 you a copy without the consent of defence counsel. 17 So as soon as I got back, I contacted Ms. 18 Hawthorn and subsequently sent her a letter saying I'd 19 like a copy of this updated report. And eventually in 20 October, I believe it was, we finally got a copy of it. 21 MR. MARK SANDLER: All right. So going 22 back to the conversation with Dr. Ferris. Although he 23 couldn't share his report with you, did he discuss with 24 you his findings in some detail? 25 MR. EDWARD BRADLEY: He was prepared to
2171 answer and he did answer, any question that I asked him. 2 And he also brought along some photographs of other dog 3 attack victims to show me, and he -- I would describe him 4 as quite cooperative. 5 MR. MARK SANDLER: All right. His 6 bottomline as we've already heard in -- 7 MR. EDWARD BRADLEY: Mm-hm. 8 MR. MARK SANDLER: -- testimony here was 9 that -- was that he was expressing the opinion that -- 10 that all of the injuries that were -- that were 11 attributable to Sharon were accounted for by -- by a dog 12 attack. Is that right? 13 MR. EDWARD BRADLEY: That's correct. 14 MR. MARK SANDLER: And did you have some 15 sense of the credibility of his position or the apparent 16 credibility of his position and did you do any due 17 diligence while you were there in connection with Dr. 18 Ferris? 19 MR. EDWARD BRADLEY: I -- I had heard 20 some hearsay before I went out there that he hadn't 21 really done any autopsies out there; questioning whether 22 he was -- his -- was -- his opinions were respected or he 23 was a respected expert. 24 So what I did was, the police officer that 25 was with me, I said, Do you know where the senior Crown
2181 for Vancouver is located? And in fact, he took me to the 2 office of the Regional Director of Crown Attorneys for 3 the area and that person, and I have his business card 4 somewhere in my office, he was kind enough to speak to 5 me. 6 I asked him what Dr. Ferris -- how, you 7 know, his opinions were held by Crowns; whether he was a 8 respected expert by Crowns in BC? 9 This gentleman said he thought that was 10 the case but he would make a few calls and if I wanted to 11 wait for a few minutes he would just confirm his opinion. 12 And he did make a few calls and told me that the Crowns 13 that he spoke to thought that Dr. Ferris was a well- 14 respected expert in British Columbia. 15 MR. MARK SANDLER: All right. And you 16 came back to Toronto and we know as you've described, 17 that you obtained the -- Dr. Ferris' fairly lengthy 18 report in October of 2003. 19 And if I can then take you -- and -- and 20 I'm not going to go through the report which the 21 Commissioner has been provided and which is summarized in 22 great detail in the overview report, but if you'd go to 23 page 131, paragraph 297. 24 25 (BRIEF PAUSE)
2191 2 MR. EDWARD BRADLEY: Yes. 3 MR. MARK SANDLER: Now this reflects a 4 meeting that took place on September the 18th of 2000 5 that involved Detective Kennedy, Dr. Smith and Dr. Wood 6 and -- and yourself. 7 And this would have been after you met 8 with Dr. Ferris in Vancouver, but before his report, as I 9 understand it, had been provided to you. Do I have that 10 right? 11 MR. EDWARD BRADLEY: Yes, we didn't get 12 the report for probably another three (3) weeks or more. 13 MR. MARK SANDLER: All right. And -- and 14 we actually see at page 132 that you have your own notes 15 of -- apart from Detective Kennedy, you have your own 16 notes of this meeting. 17 And with the benefit of -- of those notes 18 and your own recollection, could you briefly describe, 19 what was the purpose of the meeting, and what was 20 accomplished at the meeting? 21 MR. EDWARD BRADLEY: To the best of my 22 recollection, I may have spoken to Dr. Smith on the 23 phone, but it was the first opportunity I really had to 24 have a face-to-face meeting with him. 25 It was also the first opportunity I had to
2201 -- to really find out how sincere he was as to the wounds 2 that he still attributed to non-animal situations and to 3 ask him pertinent questions about that. 4 And just generally to -- to go over his 5 evidence in -- in some detail. 6 MR. MARK SANDLER: All right. And 7 during, or at the end of the meeting, did Dr. Smith 8 maintain the position that had been reflected in his 9 supplementary report or what can you say about that? 10 MR. EDWARD BRADLEY: Yes, he did. And he 11 agreed that some, perhaps even the majority of -- of I 12 believe approximately eighty (80) wounds or injuries that 13 were found on the body of -- of Sharon, that they were 14 maybe attributable to -- to animal, and specifically, dog 15 bites. 16 But that there were still some very key 17 wounds. There were at least two (2) or three (3), or 18 three (3) or four (4) wounds on various parts of the body 19 that were bifurcated which means there was one (1) 20 entrance, but a couple of -- of channels below the 21 surface. 22 And in particular, a very serious wound in 23 what he called "the thoracic inlet", which I believe is 24 in the neck area, the right hand side. And if you put 25 your hand on the -- the small bone right here, it --
2211 there was a wound just in behind that. 2 And he maintained that there was no way 3 that was animal related, and that that was a -- one (1) 4 of the more serious wounds he found on the body. 5 MR. MARK SANDLER: Okay. And Dr. Wood, 6 we've heard evidence that Dr. Wood initially stated 7 unequivocally that there was -- that -- that dogs did not 8 contribute to the -- to the injuries seen here, and then 9 -- and then later did a second opinion in which he 10 expressed the view that a number of wounds were dog 11 related, but -- but some were not. 12 Where did he stand at the end of his 13 meeting with you, Dr. Smith and Detective Kennedy? 14 MR. EDWARD BRADLEY: Basically the same. 15 He maintained that the wounds that Dr. Smith had 16 indicated -- that they were not animal related. 17 And there was also -- and I believe it was 18 on the -- the left -- to the rear of the -- the head, 19 three (3) puncture wounds that went right into the skull, 20 and he was sceptical as to whether or not those could be 21 animal related because he wasn't sure how a dog could get 22 purchase on the -- somebody's head and cause those, and 23 also whether an animal could open their mouth that wide 24 to cause those injuries, so there were a couple of other 25 ones that he maintained he thought were not animal
2221 related. 2 MR. MARK SANDLER: Now, you've reflected 3 at paragraph 298 in the last portion that Dr. Wood seemed 4 embarrassed over his first opinion, but seemed to be 5 sticking to his second report with the qualifications as 6 set out above. 7 And with reference to the -- the 8 embarrassment that -- that you articulated in -- in your 9 notes, did Dr. Wood, to your recollection, ever explain 10 how it was that he had formed the initial opinion in the 11 case, which had to be significantly modified down the 12 road? 13 MR. EDWARD BRADLEY: I -- I think to some 14 extent he indicated he was relying upon Dr. Smith for 15 some of his observations, and that was partly his 16 explanation -- 17 MR. MARK SANDLER: Okay. 18 MR. EDWARD BRADLEY: -- as I understood 19 it. 20 MR. MARK SANDLER: And if you go back to 21 the previous page just for a moment, page 131, and 22 Detective Kennedy's notes of the meetings also recorded 23 some discussion about: 24 "Ferris not allowed to do autopsies in 25 BC. Dorion never published a scientific
2231 artifact. Michael Pollanen has 2 discredited Ferris before at trial. 3 Dorion, Saskatchewan trial, Milgard 4 case for the defence had first seen 5 case. Morning he flew in, had agreed 6 to take same day before." And so on. 7 It sounds like there's some discussion 8 about -- about means of discrediting Dr. Ferris and Dr. 9 Dorion. 10 Is that so and -- and where did those 11 comments emanate from? 12 MR. EDWARD BRADLEY: That's correct. And 13 they emanated as a result of -- of Dr. Wood maintaining 14 his position that there were non-animal related injuries. 15 And in part it may have been part of my questioning, but 16 I believe he also offered some of this information to me, 17 that there were some difficulties with Dr. Ferris. 18 MR. MARK SANDLER: You made some 19 reference a little earlier to the fact that you had heard 20 some hearsay not dissimilar to what we're talking about 21 now, at least in some components of it, in connection 22 with your Vancouver trip. 23 Do you recall what the source of the 24 hearsay had been at the time? 25 MR. EDWARD BRADLEY: To the best of my
2241 recollection, it was from several doctors at the Chief 2 Coroner's Office. Whenever Dr. Ferris' name came up 3 there was always some suggestion that, oh, he left 4 Ontario and he's gone out west, and it was in -- nobody 5 actually said and I didn't ask, but there was some 6 suggestion that he left Ontario under some sort of cloud 7 and decided to move his practice to British Columbia. 8 MR. MARK SANDLER: Okay. And in -- in 9 fairness to Dr. Ferris, who isn't here, I mean that's the 10 extent of what you know about it? 11 MR. EDWARD BRADLEY: That's the full 12 extent to what I know about it. And like I say, that's 13 was -- one (1) of the reasons why I asked when I was in 14 British Columbia, and in fairness to Dr. Ferris, they 15 spoke quite highly of him. 16 MR. MARK SANDLER: Okay. If that would 17 be a convenient time, Commissioner, for the afternoon 18 break. 19 COMMISSIONER STEPHEN GOUDGE: Okay, we'll 20 take fifteen (15) minutes then. 21 22 --- Upon recessing at 3:36 p.m. 23 --- Upon resuming at 3:55 p.m. 24 25 THE REGISTRAR: All rise. Please be
2251 seated. 2 COMMISSIONER STEPHEN GOUDGE: Mr. 3 Sandler...? 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Thank you, 7 Commissioner. Mr. Bradley, if I can take you to the 8 overview report at page 134, paragraph 303, it reflects 9 that in July of 2000 you wrote to Dr. Young regarding the 10 case and made reference to a conversation with Dr. Young 11 the week before. And it appears that this had to do in 12 part with a decision to retain Dr. Symes, a forensic 13 anthropologist from the University of Tennessee. 14 Could you briefly indicate to the 15 Commissioner how it was that the decision was made to 16 involve Dr. Symes in the case? 17 MR. EDWARD BRADLEY: Yes. We -- both Dr. 18 Young and myself were at the University of Western 19 Ontario. That's where for a number of years at the Law 20 School there, the Crown Attorneys have run educational 21 programs. And one (1) of those programs involves 22 inquests and I believe that's why Dr. Young was present. 23 Dr. Young knew me and came up to me and 24 said would I like to have dinner with him that evening. 25 He said there was something he wanted to discuss with me
2261 and I said, Fine. 2 Over dinner we discussed the Reynolds case 3 and he indicated to me that he thought it was important 4 that we go outside of Canada and that we get a leading 5 expert in North America so that somebody that would be 6 authoritative from both the Crown and hopefully the 7 defence perspective. 8 Actually, he mentioned two (2) names, 9 however, we ended up picking Dr. Symes who was with the 10 University of Tennessee and was a forensic anthropologist 11 and had considerable experience with animal bites and 12 tool mark identification and had been involved with 13 numerous, literally hundreds, of autopsies. 14 MR. MARK SANDLER: And what did you 15 understand based on your conversation with Dr. Young to 16 be the concern that had motivated this suggestion? Was 17 the concern about the state of the forensics or Dr. Smith 18 or some combination? Can you help me out as to that. 19 MR. EDWARD BRADLEY: What he said to me 20 is would I have any problem with retaining an expert to - 21 - and I'm not sure if it's an exact quote but it's close 22 to it -- once and for all trying to get to the bottom of 23 the situation involving the Reynolds' matter. 24 MR. MARK SANDLER: Okay. 25 COMMISSIONER STEPHEN GOUDGE: Did he --
2271 MR. EDWARD BRADLEY: And then of course I 2 said I was only too happy to see that happen. 3 COMMISSIONER STEPHEN GOUDGE: Did he tell 4 you why he had developed that concern? 5 MR. EDWARD BRADLEY: He said there were 6 some concerns with regards to the matter. And I believe 7 he mentioned Dr. Smith's name, but we didn't get into 8 specifics and I didn't ask him about specifics beyond his 9 concern that he thought we should, as long as I agreed, 10 try and find out as best we could what the real truth was 11 as to how Sharon presumably died. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: And -- and did you 15 speak to Dr. Cairns in this same connection as well? 16 MR. EDWARD BRADLEY: I did speak to Dr. 17 Cairns. It was sort of through Dr. Cairns and another 18 person in the Coroner's Office that we were to arrange 19 how we were going to go about retaining Dr. Symes and the 20 logistics of getting the information to Dr. Symes and the 21 reports and various other things. 22 MR. MARK SANDLER: And to ask the same 23 question that the Commissioner asked of you in connection 24 with Dr. Young. Did you get some sense of what had 25 prompted from Dr. Cairns' perspective the concer -- this
2281 initiative on the part of the Chief Coroner's Office? 2 MR. EDWARD BRADLEY: I think, once again, 3 Dr. Cairns was concerned that there were conflicting 4 opinions; concerned that Dr. Smith had been so positive 5 at the beginning and now had changed his position and 6 wanted to try and resolve the issue. 7 MR. MARK SANDLER: Did you know from your 8 conversation with either Dr. Young or Dr. Cairns whether 9 their concerns extended beyond the individual case in 10 which you had been involved? 11 MR. EDWARD BRADLEY: There was no -- 12 nothing direct in that regard, but I got the feeling that 13 they did have concerns beyond this case. 14 MR. MARK SANDLER: If you'd go to page 15 136 of the overview report we see that -- that in 16 December 2000, Ms. Hawthorn writes to you and she's 17 concerned about -- about your request for a report from 18 Dr. Symes. 19 Now, she characterizes it as: 20 "Your continuing efforts to get 21 evidence to bolster the Crown's case in 22 -- in this matter" 23 and -- and she reflects that: 24 "This may prompt an application to exclude 25 the evidence based upon an abusive
2291 process, given the timing that Dr. Symes 2 was being asked to be involved." 3 And then you responded back in December of 4 2000 and you stated that: 5 "The OCCO took the initiative to 6 involve Dr. Symes and retained Dr. 7 Symes. It was the Chief Coroner who 8 indicated he wanted to involve Dr. 9 Symes because he had no involvement 10 with either party and no preconceived 11 ideas or contact with any of the 12 evidence." 13 And then you had reflected: 14 "The Crown has had no contact with Dr. 15 Symes up to this point, except to send 16 both the defence and Crown expert 17 reports to him at his request after he 18 had completed his own examination." 19 And then you explain why; that you don't 20 have any control over the Office of the Chief Coroner as 21 to who the Chief Coroner decides to consult and when. 22 And did that accurately represent your 23 state of mind in -- in connection with Dr. Symes' 24 involvement? 25 MR. EDWARD BRADLEY: Not completely. The
2301 one (1) part you -- you didn't read was that Dr. Young 2 contacted our office and said he felt an obligation to 3 try and come to some resolution as to the true cause of 4 death of Sharon. 5 And I -- I guess I was a little bit upset 6 that -- at this point in time, I was hoping that Dr. 7 Symes would resolve the matter one (1) way or the other 8 and that if he came back and said that, in his opinion, 9 the majority, if not all of the -- the indications were 10 that a dog was involved in causing the injuries, then 11 that would be justification for having a real serious 12 look at withdrawing the charge. 13 And the suggestion that I was really 14 trying to bolster the case for the Crown sort of bothered 15 me a little bit because that was far from the truth. It 16 was actually the opposite at that point in time because I 17 was having very serious concerns about the case and I was 18 looking for additional support to assist me in 19 withdrawing the charge, actually. 20 MR. MARK SANDLER: I mean, I -- I take it 21 one (1) of the significant concerns you had about the 22 case, leaving aside Dr. Ferris and leaving aside Dr. 23 Dorion, was even looking at only the Crown witnesses that 24 you had, there had been a very significant turnaround in 25 what they had had to say on one (1) of the key issues in
2311 the case, regardless of the fact that there was some 2 residual opinion evidence that some of the -- some of the 3 injuries were not attributable to dog bites -- 4 MR. EDWARD BRADLEY: Mm-hm. 5 MR. MARK SANDLER: -- is that fair? 6 MR. EDWARD BRADLEY: Yeah. I think, as 7 you mentioned earlier, there was circumstantial evidence, 8 but if the Crown could not prove causation as to who 9 caused the death and the actual cause of death, then we 10 didn't have a case; it was as simple as that. 11 MR. MARK SANDLER: All right. Now, you 12 did receive the report of Dr. Symes, as reflected at 13 paragraph 312 at page 137. And again, this report is 14 familiar to us all from the overview reports, so I'm not 15 going to take you -- take you through it, but it appears 16 that following the receipt of the report from -- to you, 17 at page 138, paragraph 314, you recorded that you spoke 18 to Dr. Symes in several conversations around December the 19 12th and December the 13th, and you've got very, very 20 detailed notes of your conversation with him in the -- in 21 the pages that follow. 22 Can you -- can you give me the bottom line 23 as to what Dr. Symes' evidence had affect -- how it 24 affected, if at all, your assessment of where this case 25 was going?
2321 MR. EDWARD BRADLEY: It was, sort of, 2 what I guess really capped off the sort of sequence of 3 events, because it was shortly after those conversations 4 that I contacted Mr. Stewart -- Jim Stewart -- who is the 5 Director of Crown Attorneys for Eastern Ontario, and 6 indicated I had some very serious concerns about the 7 case, and I would like to try and get a group of senior 8 Crowns together to meet with the police and sort of 9 review whether or not we had a reasonable prospect of 10 conviction. 11 MR. MARK SANDLER: And -- and what was 12 the bottomline as to what Dr. Symes had to say, as far as 13 you were concerned? 14 MR. EDWARD BRADLEY: He basically 15 indicated that from what he saw, and I think as he puts 16 it at the bottom or near the end, that he apologized for 17 his conclusions, realizing this was a murder case, but he 18 said he had to call it as he sees it; in that what marks 19 he saw on the -- on the bones -- and that's what he was 20 going by, not -- that plus the photographs of the 21 autopsy of course. 22 So he had the opportunity of seeing what 23 the actual injuries look like on the skin but the bones 24 clearly identified dog teeth, and I would think it was 25 the canine teeth that made those impressions.
2331 There were some marks on the skull that he 2 couldn't account for; that he said could have been made 3 by a really sharp knife or by a dull scalpel. 4 But the bottomline was that he confirmed 5 that apart from those other marks, that it was all dog- 6 related. 7 MR. MARK SANDLER: All right. And as 8 reflected at paragraph 315 at page 140, you spoke to Dr. 9 Wood. 10 And as you earlier indicated to the 11 Commissioner, Dr. Wood accepted Dr. Symes as the 12 recognized expert in North America and as being "the go- 13 to guy" or "the heavy hitter in the field". Is that 14 right? 15 MR. EDWARD BRADLEY: That's correct. 16 MR. MARK SANDLER: Now, jumping ahead for 17 a moment. We see at page 141 that again during this 18 period of time, you're receiving some input from some of 19 your fellow Crowns; most particularly Lee Burgess, the 20 Acting Crown Attorney in Prince Edward County and Ms. 21 Walsh. 22 And again, the Commissioner is well aware 23 of their commentary in connection with the Tiffany and 24 Joshua cases and their involvement in it. Can you simply 25 indicate in a line or two (2) what you took from the
2341 information that was being communicated to you by your 2 fellow Crowns in December of 2000? 3 MR. EDWARD BRADLEY: That there were 4 difficulties in other cases involving Dr. Smith's 5 opinions and that those difficulties had resulted in 6 either charges being withdrawn or in a reassessment of 7 the case and the Crown taking guilty pleas to quite 8 reduced charges. 9 MR. MARK SANDLER: All right. And did 10 you have occasion either at this point or subsequently to 11 -- to speak to Mr. Armstrong as well? 12 MR. EDWARD BRADLEY: That was in January, 13 and I got a brief call from him indicating to me that he 14 had heard that I had some problems in a case -- a 15 homicide -- with the opinions of Dr. Smith. 16 And I believe I said to him, Yes, but why 17 are you calling, and he said, Because he was about to 18 withdraw a charge of murder in Toronto based on some 19 difficulties with Dr. Smith, and he just wanted to, I 20 guess, reassure himself that his case wasn't an isolated 21 one. 22 MR. MARK SANDLER: And in general tone, 23 without -- without trying to reflect upon the precise 24 words used, what was the tenor of your response to him? 25 MR. EDWARD BRADLEY: I said we were going
2351 to have a meeting and that we were sort of aiming towards 2 withdrawing the homicide charge. 3 MR. MARK SANDLER: Now before that 4 conversation with Mr. Armstrong took place, and before 5 your meeting with Mr. Stewart and others in January of 6 2001, you also had occasion as reflected at page 143, 7 Paragraph 320 and 321, to speak again to Dr. Cairns did 8 you not? 9 MR. EDWARD BRADLEY: Yes, I did. 10 MR. MARK SANDLER: And again, reflecting 11 the bottomline, rather than going into the -- the -- all 12 of the details that are reflected in your notes, what did 13 you take from what Dr. Cairns had to say to you in 14 December of 2000? 15 MR. EDWARD BRADLEY: Dr. Cairns gave me 16 some alternative explanations even for some of the wounds 17 that Dr. Smith was still indicating were non-animal 18 related and possible explanations as how -- to how they 19 could have occurred as a result of a dog, and that I 20 should be careful in assessing the opinion of Dr. Smith. 21 MR. MARK SANDLER: And when Dr. Cairn 22 spoke to you, you've reflected in your notes that he was 23 quite sceptical of Dr. Smith's conclusions. Was -- was 24 that the terminology that he used, or was that what you 25 took from what he had to say?
2361 MR. EDWARD BRADLEY: That was my view. 2 MR. MARK SANDLER: Okay. Now if we can 3 move forward, we can see that -- that at paragraph 323, 4 page 144, you spoke to Dr. Smith. And tell the 5 Commissioner about that conversation if you would. 6 MR. EDWARD BRADLEY: I had tried for a 7 number of days, in fact, once again I have a phone 8 message where I think this was about the tenth or 9 eleventh phone call. And just so happened, Dr. Smith 10 picked the phone up at his office I -- and as a result, I 11 spoke to him. 12 I wanted to go through, with him, some of 13 the things that Dr. Cairns had told me. For example, the 14 bifurcated wounds, that it could be a dog that caused 15 those simply by -- without removing his teeth from -- 16 completely from the body, just loosening his grip 17 slightly and then reasserting it, so you'd have a second 18 channel below the surface. 19 Because it was the opinion of Dr. Smith 20 that those were not animal-related but were consistent 21 with scissors, where they go in and then just below the 22 surface, the scissors open up. 23 Also, Dr. Cairns - the neck wound -- Dr. 24 Cairns had said, be very careful of trying to measure the 25 depth of something where it goes in, there's a space or a
2371 cavity, unless you can see an injury on the other side of 2 the cavity, and -- because you don't really know the -- 3 the exact depth. 4 And so I wanted to discuss that with Dr. 5 Smith. And I think I also, obviously, wanted to review 6 Dr. Simms report with him, and see how he felt about that 7 in some detail. And that was the purpose. 8 MR. MARK SANDLER: And -- and what was -- 9 what did you take from Dr. Smith's reaction to Dr. Symes 10 involvement, Dr. Ferris' report and the other theories or 11 possibilities that you were putting to him in your -- in 12 your call? 13 MR. EDWARD BRADLEY: He accepted Dr. 14 Symes or Dr. Simms as one of the leading experts in the 15 field. He said he understood what Dr. Ferris was perhaps 16 getting at, where you can have compression in the neck 17 area so that you can't accurately measure the full extent 18 of the depth of -- because if you accepted Dr. Smith, you 19 know, we talked about a sabre-toothed dog, where the 20 teeth would have to be far longer than any teeth that we 21 could find on a pit bull. 22 And Dr. Woods had gone to -- I think, the 23 dogpound and measured deceased dogs -- pit bulls, various 24 sizes -- to see what the average size was because we 25 didn't have the head of the dog in this case.
2381 And he said he could see where Dr. Ferris 2 was coming from. He accepted Dr. Symes as the leading 3 expert in the area. Dr. Smith did say that while he 4 accepted these other things, especially Dr. Ferris' 5 explanation about the neck wound as a possibility, he 6 still felt, and I think I have it recorded in there 7 somewhere, that he still felt in his heart that he was 8 correct. 9 But he did say that he didn't envy my -- 10 my task, and he wished me good luck at the meeting 11 because I told him in about four (4) days time we were 12 going to have a scrum to determine whether we were going 13 to still proceed with the prosecution. 14 MR. MARK SANDLER: You've reflected that 15 he said, that in his view, he realized that we would have 16 a real difficulty with meeting, as he put it, the test of 17 the probability of conviction. 18 MR. EDWARD BRADLEY: That's correct. 19 MR. MARK SANDLER: And -- and those are 20 in effect his words? 21 MR. EDWARD BRADLEY: Yes. 22 MR. MARK SANDLER: Now, at paragraph 324 23 at page 146, the overview report refers to a police 24 chronology prepared by the Kingston Police Service that 25 said this in connection with your telephone call to Dr.
2391 Smith on January the 11th: 2 "Ed Bradley phoned Smith, questions him 3 at length, puts possible causes of 4 certain injuries to him, gets Smith to 5 basically tell him that he really 6 didn't look close at the excised scalp 7 which may have assisted in determining 8 several sharp incised wounds at that 9 location. As well, he gets Smith to 10 say that it'll be very difficult now to 11 meet the test of the probability of 12 conviction. Interestingly enough, 13 these phone calls and cross- 14 examination..." 15 And cross-examination is in bold. Or 16 sorry, is -- is in -- 17 MR. EDWARD BRADLEY: Capital. 18 MR. MARK SANDLER: -- capitals. 19 "...of expert witnesses by Bradley was 20 done without any knowledge of the 21 Kingston Police Department's 22 investigators or Bradley's other co- 23 Crown, Jennifer Ferguson." 24 And -- and that's -- that passage is -- is 25 underlined. What do you say about that characterization
2401 of what it was that you were doing? 2 MR. EDWARD BRADLEY: Certainly, I -- I 3 didn't specifically discuss with the police that I was 4 going to call Dr. Smith and ask him all sorts of 5 questions about the -- the most up-to-date information. 6 My co-counsel did know that I was going to 7 speak to Dr. Smith, but as I indicated, I had to make, at 8 least, nine (9) or ten (10) calls before I was able to 9 reach him, so she was not actually present with me when I 10 spoke to Dr. Smith on the phone. 11 The part about the excised scalp was there 12 were these undetermined marks from a double -- double- 13 bevelled instrument of some sort that left marks on the 14 scalp. 15 And Dr. Smith was unable to say whether 16 they were there at the time of the autopsy or not because 17 he just did a gross examination of the -- the skull; he 18 didn't look at it microscopically, as I guess, Dr. Symes 19 did. 20 So, I wasn't aware of that, by the way, 21 until this was brought to my attention. This time line 22 that was prepared by the police, I didn't see until, I 23 guess, a couple of months ago when I was shown it by 24 Commission Counsel. 25 MR. MARK SANDLER: All right. Do you
2411 accept the characterization that you were cross-examining 2 the -- Dr. Smith or do you accept the implicit 3 characterization here, which we see repeated elsewhere, 4 that -- that in effect you're -- you're trying to get the 5 witnesses to -- to take a position adverse to the -- to 6 the investigator's position in the case? 7 MR. EDWARD BRADLEY: I was not cross- 8 examining him. What I was trying to do was trying to 9 determine what his opinion was in light of the other 10 opinions and the other comments of Dr. Cairns, Dr. Symes, 11 and Dr. Ferris -- and that context. 12 MR. MARK SANDLER: All right. We see on 13 the following page, page 147, that on January the 12th 14 and on January the 15th, meetings took place involving 15 the police and Crown to discuss what would transpire in 16 connection with this ongoing prosecution. 17 And we see a reflection that at the 18 meeting of January the 12th, Mr. Stewart was there; Mr. 19 McKenna, who had been the previous Crown on the case; 20 Kingston Crown Bruce Griffith; Ms. Ferguson; you and 21 Detective Sergeant Bird, Sergeant Begbie and Sergeant 22 Kellar. 23 MR. EDWARD BRADLEY: And -- and Mr. 24 Stewart. 25 MR. MARK SANDLER: I said Mr. Stewart.
2421 MR. EDWARD BRADLEY: Oh sorry, I 2 apologize. 3 MR. MARK SANDLER: And Mr. Stewart was -- 4 was the Director in your Region, is that right? 5 MR. EDWARD BRADLEY: That's right. 6 That's right. 7 MR. MARK SANDLER: And can you -- can you 8 tell the Commissioner briefly what it was that transpired 9 at these meetings of January the 12th and January the 10 15th? 11 MR. EDWARD BRADLEY: We went to the 12 Holiday Inn so we would be out of the police station -- 13 out of the Crown's office -- and we presumably would be 14 able, in a setting not associated with the police or the 15 Crown, to review all of the key evidence and come to a 16 full and final conclusion as to whether or not there was 17 a reasonable prospect of conviction. 18 COMMISSIONER STEPHEN GOUDGE: You make it 19 sound like you were on neutral ground. 20 MR. EDWARD BRADLEY: That was the 21 bottomline, that's correct. We wanted to be on neutral 22 ground. I think we were aware that we were going to 23 receive opposition from the police. 24 25 CONTINUED BY MR. MARK SANDLER:
2431 MR. MARK SANDLER: All right. Well, I 2 was about to ask you and it's -- it's probably the under 3 -- the undercurrent of everything that you've said, but - 4 - but there were some very strongly held feelings, to say 5 the least, on the part of the police as to whether this 6 prosecution should continue. 7 Is that fair? 8 MR. EDWARD BRADLEY: I think that's fair. 9 I think in fairness to the police, however, as Detective 10 Sergeant Bird said, since 1997 they had spent long hours 11 involved in the case, and they had lived with it for 12 going on three (3) years plus. 13 MR. MARK SANDLER: All right. And what 14 was the determination that was made and by whom at these 15 meetings of January the 12th and the 15th? 16 MR. EDWARD BRADLEY: We spent about five 17 (5) hours, I believe, discussing the matter in a 18 boardroom or a conference room at the Holiday Inn on the 19 Friday. 20 At the end we went around the table; the 21 Crowns were unanimous and three (3) of the four (4) 22 police officers said they understood where the Crowns 23 were coming from and understood why we were making the 24 decision that there was no reasonable prospect of 25 conviction.
2441 MR. MARK SANDLER: All right. Who didn't 2 take that position and what was the alternative position 3 presented? 4 MR. EDWARD BRADLEY: Harley Kellar, 5 Sergeant Kellar. His position was that the case was 6 before the courts and the courts should decide the 7 matter. 8 MR. MARK SANDLER: All right. Now I'm 9 going to ask you this because of an allegation that was 10 later made, which I'll show to you from -- from the 11 Kingston Police Service, and that is that did you have 12 occasion to speak again to Dr. Smith during this period 13 January the 12th and January the 15th of 2001, before the 14 final decision was made that this case would not proceed? 15 MR. EDWARD BRADLEY: We decided that we 16 would continue the -- even though we took that vote at -- 17 on the Friday, that because even though the police 18 agreed, at least, three (3) of the four (4), it was 19 obviously with some reluctance; it was decided we would 20 discuss the matter further. 21 This time we did avoid neutral ground. We 22 ended up going to the police station and met in a 23 conference room at the police station. 24 And in between Friday and the Monday, it 25 was suggested to me -- I can't be certain but as certain
2451 as I can be, Mr. Stewart suggested that it might be a 2 good idea to get Dr. Smith on the phone; have the senior 3 police officer with me so that there couldn't be any 4 dispute as to what Dr. Smith's final opinion was because 5 his opinion was the definitive one (1). And that's why 6 we contacted Dr. Smith. 7 And -- do you want me to just mention 8 that? 9 MR. MARK SANDLER: Yes. 10 MR. EDWARD BRADLEY: I went down to an 11 interview room where there was an outside line at the 12 police station. I had Detective Sergeant Bird who was 13 the Senior Officer, the case manager with me. We called 14 and were fortunate enough to be able to locate Dr. Smith. 15 I told Dr. Smith that I had Detective 16 Sergeant Bird with me, I said, Is it okay if I put you on 17 the speaker phone so that the officer can hear, and he'll 18 be taking some notes. I indicated that we were in the 19 middle of our discussions and I just wanted to, once 20 again, review what his opinions were in -- in view of the 21 latest information. 22 And I went through it with him. We 23 thanked Dr. Smith for speaking to us. We then went back 24 up to the meeting where everybody else was, and I went 25 through what Dr. Smith had indicated on the phone.
2461 I then turned to Detective Sergeant Bird 2 and said, Have I stated that accurately? And he said I 3 had, so that there would be no dispute as to what Dr. 4 Smith's opinion was. 5 MR. MARK SANDLER: Okay. And if you look 6 at page 1 -- sorry, page 147, paragraph 326, it would 7 appear that according to the police chronology, the 8 Kingston police spoke to Mr. Stewart and Mr. Segal, 9 Director of Crowns for Ontario, regarding the proposed 10 withdrawal of the charges after the meeting that -- that 11 you've just described. 12 Were you aware of that at -- back in 13 January of 2001? 14 MR. EDWARD BRADLEY: No. In fact once 15 again, I was only aware of that a couple of months ago 16 when that was shown to me. 17 MR. MARK SANDLER: Okay. And then we see 18 that on January the 25th, Mr. Griffith appeared on behalf 19 of the Crown's office and withdrew the charge of second 20 degree murder against Ms. Reynolds. 21 And -- and the overview report reproduces 22 what Mr. Griffith had to say about the events that had 23 led to the withdrawal of the charge against Ms. Reynolds. 24 And I just take you to page 151 of the overview report, 25 first full paragraph where it says:
2471 "As a result of this new information 2 from Dr. Symes, Mr. Bradley then spoke 3 to Dr. Charles Smith in early January 4 2001. Dr. Smith's original position 5 had been unequivocal. None of the 6 wounds were dog bites. He testified to 7 this effect at the Preliminary Inquiry. 8 After the second post-mortem he changed 9 his opinion to indicate that some of 10 the wounds were dog bites and some were 11 not dog bites. When he was presented 12 with the new information from Dr. 13 Symes, Dr. Smith then stated that he 14 deferred to the opinions of the other 15 experts. Dr. Smith also now says that 16 there's a possibility that even these 17 other questionable wounds could 18 possibly have been caused by dog bites. 19 Mr. Bradley, out of an abundance of 20 caution, reconfirmed Dr. Smith's 21 assessment of the key injuries to the 22 deceased child, in a telephone 23 conversation with him on January 15, 24 2001." 25 And in your mind, does that accurately
2481 reflect the -- the sequence of events as you've 2 described? 3 MR. EDWARD BRADLEY: Yes, and Mr. Griffin 4 (sic), who read this statement, was present at the 5 meeting on the 15th. And I should add, I was prepared to 6 stand up and read it myself. Mr. Griffin (sic) said, I'm 7 the Crown attorney in Kingston. I would prefer to do it 8 because it's my jurisdiction, and I said fine. 9 MR. MARK SANDLER: Mm-hm. 10 MR. EDWARD BRADLEY: But I was sitting 11 right beside him, so I don't want any suggestion that I 12 sort of disappeared and left the -- 13 MR. MARK SANDLER: That you left town for 14 it? 15 MR. EDWARD BRADLEY: Left town, yeah. 16 MR. MARK SANDLER: Okay. And just while 17 we're on the topic, we heard from Dr. Young earlier at 18 this Inquiry, that -- that he provided some input on 19 behalf of the Chief Coroner's Offie about deleting a 20 reference that had been made that the exhumation was 21 driven by the -- the loss of the -- of the cast that had 22 been taken at the first autopsy by Dr. Smith. 23 And do you recall that the OCCO weighed in 24 on whether that should form a component of the facts that 25 were being read in?
2491 MR. EDWARD BRADLEY: I guess all I can 2 say is that this is the final draft. This was drafted or 3 re-drafted about four (4) or five (5) times, and one (1) 4 of the changes that was made was with regards to the 5 cast. 6 And we did send copies of this, of course, 7 to the assistant or Deputy Attorney General, and we did 8 send copies to the Chief Coroner. 9 MR. MARK SANDLER: All right. If I can 10 then briefly take you to page 154 of the overview report 11 and -- and I should say, Commissioner, that -- that we're 12 relatively close to the end of -- of this examination, 13 but I've canvassed with counsel whether they'd like me to 14 finish off the evidence today, even if we extend fifteen 15 (15) minutes or so beyond 4:30, and everybody is content, 16 begrudgingly, to allow me to do that, and so if I can 17 proceed. 18 COMMISSIONER STEPHEN GOUDGE: Absolutely. 19 Thanks for your patience, the three (3) of you. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: So, if -- if we can go 23 to some very public comments that were made by the Chief 24 of the Kingston Police Service after the withdrawal of 25 the charges, and I'm going to ask you to comment on them.
2501 And they also raise several systemic 2 issues that -- that either I or other counsel may address 3 in our questions. At page 154 of the overview report, 4 you'll see at paragraph 330 that on January the 26th, the 5 -- the Chief, Chief Closs, writes to the Solicitor 6 General and the Attorney General regarding the withdrawal 7 of charges. 8 And he says: 9 "It's the view of the Kingston Police 10 that the withdrawal of the charge 11 effectively obstructed the public's 12 right to know what transpired in this 13 individual case. The pathologist who 14 examined the deceased child was clear 15 in his opinion as to the cause of 16 death. Since that time, Ontario 17 Forensic Pathologists have changed 18 their expert opinion several times 19 based upon unchallenged information. 20 This allowed defence experts to refute 21 without being under oath or subject to 22 cross-examination, the Crown's position 23 and the Crown's forensic pathology 24 experts. In most serious criminal 25 prosecutions, the police often must
2511 rely on expert witnesses and their 2 opinions. When qualified experts 3 offered their advice, guidance, and 4 opinion, it seems to me that in the 5 absence of clear convincing and 6 conclusive evidence to the contrary, 7 they should stand by that advice, 8 guidance, and opinion. If they're 9 going to change their opinion simply 10 because it's challenged with an 11 opposing viewpoint, they should not be 12 used as experts, should not offer their 13 opinion, and should not be qualified as 14 experts. It's the Crown's right to 15 decide to prosecute a case, but how 16 finely do Crown attorneys define the 17 term "reasonable prospect of 18 conviction"? What does the Crown use 19 as a guideline in balancing the impact 20 of expert evidence with other 21 circumstantial or supportive evidence? 22 It's not uncommon for experts from the 23 Crown's side to disagree with experts 24 put forward by the defence. Where 25 truth and credibility lie is based on
2521 the totality of the case as presented 2 and should be left for a Court to 3 decide. It's my view that the search 4 for truth in this investigation has 5 been lost because this case, in its 6 entirety, never went to trial." 7 Your -- your comments? 8 MR. EDWARD BRADLEY: Unfortunate that the 9 Chief sent this letter. I generally have a good working 10 relationship with the police. I was surprised when the 11 Chief sent this letter and I saw its contents. I saw it 12 a few days after it was written and obviously, I disagree 13 with almost every one (1) of those comments. 14 MR. MARK SANDLER: All right. One (1) of 15 the implications of the letter is -- is, in effect, that 16 the defence experts were allowed to refute without being 17 under oath or subject to cross-examination -- the Crown's 18 forensic pathology experts -- what do you say 19 specifically about that? 20 MR. EDWARD BRADLEY: Well, this is not a 21 si -- this was not a situation where experts just 22 disagreed. This was a situation where even the Crown 23 experts were changing their opinions. 24 And in fairness to both Dr. Smith and Dr. 25 Woods -- or Wood, if -- if they're doing this as
2531 scientific experts, which they were in -- in the context 2 as an odontologist and a forensic pathologist, then as 3 scientists, if the -- the circumstances, the facts 4 change, then if you feel it should change your opinion, 5 then you should be prepared to change your opinion, and 6 Dr. Smith and Dr. Woods, to a certain extent, did that. 7 And even Dr. Smith at the -- the final 8 analysis, and I think the -- the one (1) line that we 9 read out in Court, is that Dr. Smith also now says there 10 is a possibility that even those other questionable 11 wounds could possibly have been caused by dog bites. 12 And it's my submission that it's not 13 simply saying, I disagree with this other expert. That 14 wasn't the situation in our case. 15 MR. MARK SANDLER: All right. If you'd 16 look -- and I'm not going to read you all the comments 17 from Chief Closs -- but if you look at 156 -- page 156, 18 and we see that he was writing, requesting a public 19 inquiry into the circumstances of Sharon's death and the 20 resulting criminal investigation and public prosecution. 21 But we see at paragraph 335 that he writes, regarding the 22 OCCO's review of the case, and he says: 23 "At the time the trial was halted, the 24 officers involved were of the opinion 25 that the decision to halt the trial
2541 reflected the wishes of the Crown 2 attorney and Coroner's Offices at the 3 expense of the Kingston police. In 4 other words, the perception was left 5 that the decision to halt the trial was 6 based upon a desire to protect the 7 Coroner's Office because of Dr. Smith's 8 loss of a piece of evidence and 9 subsequent change in opinion to sworn 10 evidence given at the preliminary 11 inquiry. As part of its review, the 12 independent panel of pathologists 13 should consider the other evidence 14 unconnected to Dr. Smith before 15 offering an expert opinion on this 16 case." 17 What do you say about -- about his 18 articulation of the reason why the Crown attorney's 19 office and Coroner's Office decided to halt the trial? 20 MR. EDWARD BRADLEY: Once again I 21 disagree with his phraseology. This was not done to 22 protect anybody other than to follow the Crown policy 23 manual, to follow the sworn obligation that we as Crown 24 attorney's and -- take when we prosecute cases, and that 25 is if at some point in time we conclude that we no longer
2551 have a reasonable prospect of conviction, then we are 2 duty bound to withdraw and not proceed further with the 3 prosecution. And that was the sole purpose and the sole 4 motivation. 5 And the police officers were consulted 6 throughout, and like I say, the two (2) key officers 7 perhaps reluctantly did say they understood why the -- 8 the Crown was withdrawing, and why we no longer had a 9 reasonable prospect of conviction and it was not to -- 10 not because there was some lost piece of evidence on the 11 part of Dr. Smith. 12 MR. MARK SANDLER: And so finally when 13 you look at page 157, in a letter that was written to Dr. 14 McLellan, the Chief Coroner, the last paragraph says: 15 "The investigating officers were not 16 included in the decision to withdraw 17 the charge and believe that the time 18 that the real purpose of the withdrawal 19 was to protect the government." 20 And you've already responded to -- to the 21 accuracy of -- of that proposition? 22 MR. EDWARD BRADLEY: Police were 23 involved, and it was not to protect the government. 24 MR. MARK SANDLER: All right. Now at Tab 25 16 of the materials, PFP099605, there's also a reflection
2561 of correspondence involving John McMahon, Bruce Griffith, 2 yourself and Rita Zaied. And we've already heard about 3 material the Mr. Gilkinson forwarded to Rita Zaied as a 4 result of a request through John McMahon, arising out of 5 the Kporwodu Case. 6 And did you and Mr. Griffith put together 7 a package as well that was forwarded to Toronto as a 8 result of those inquires from the Toronto Office? 9 MR. EDWARD BRADLEY: A package was put 10 together. It wasn't personally put together by myself 11 and Mr. Griffith. It was put together, I believe, by Ms. 12 Ferguson. But as indicated in there, we did confirm that 13 it was put together and was forwarded to Mr. McMahon. 14 MR. MARK SANDLER: All right. Now I'm 15 going to ask you finally, a series of questions that I 16 asked both of your colleagues to your right and left, and 17 that is that when -- when you look at this case, could 18 you articulate what you think went right, what you think 19 might have gone wrong, and what, if any, recommendations 20 that you'd like to make to the Commissioner arising out 21 of your experience on this and other cases? 22 MR. EDWARD BRADLEY: I think the thing 23 that both Mr. Gilkinson and I have in common, and to, I 24 guess, some extent Ms. Regimbal, is that we all came into 25 this -- our cases -- part way through.
2571 And certainly from my perspective, just 2 dealing with the Reynolds case, I came into it -- it was 3 into its fourth year, and I was only involved for just 4 around ten (10) months. I was sort of -- I guess a 5 critical outsider. I had considerable experience in 6 prosecuting homicides, and I think that's important. 7 And I think in the context of having a 8 committee set up where you can go to get that critical 9 outside look, that's a very important initiative and one 10 (1) that I would strongly support. 11 Something that did go wrong and the 12 Commissioner has asked us questions about this, and this 13 is the question of reciprocal disclosure. 14 You have in there a letter and there's 15 other correspondence where from time to time, in the 16 short period of time that I was involved, Ms. Hawthorn 17 was trying to convince me to reassess the case and to 18 withdraw the charge. But for the majority of the time, I 19 didn't even have a report of Dr. Ferris. Certainly, I 20 didn't have the lengthy report of Dr. Ferris, and I never 21 did get more than a five (5) line report of Dr. Dorion. 22 I can't believe that was the only report he prepared. Of 23 course, I've been surprised in the past. 24 But the point is is that if you're going 25 to try and ask the Crown to withdraw something then you
2581 should be willing to -- to show some reasons for it in 2 the -- at least, in the form of your expert's opinion to 3 support that. 4 It's a little different from where you're 5 just trying to crystalize perhaps the Crown experts 6 before you then disclose the reports. Eventually, we did 7 get Ferris' report, and after I saw his report, I saw 8 some things in there that did strongly support the 9 defence position. 10 Accreditation: Even today it's my 11 understanding that there is no Canadian forensic 12 pediatric association -- or even leaving aside the 13 pediatric aspect -- that certifies pathologists as 14 forensic pathologists. You have to go to associations 15 outside of Canada for that. 16 And certainly at the time, there wasn't 17 anything that would accredit Canadian -- or doctors from 18 Ontario as forensic pathologists. 19 I think it's also important that 20 pathologists be given, at least, a reasonable synopsis of 21 the information that the police have available as far as 22 the context in which the body was found. 23 Leaving aside the theory, because then you 24 can always say if you're a defence counsel, Well, you've 25 -- you're not dealing with it as a completely unbiased
2591 scientist. But I think it's important that the 2 pathologists know the context in which body was found. 3 And certainly in this case, it would have, 4 perhaps, been of benefit to have told Dr. Smith from the 5 outset that there was a pitbull -- and I think there was 6 even a second dog, a small little dog -- in the house 7 somewhere at the time. But certainly the pitbull was in 8 the basement at the time the -- Sharon's body was located 9 -- or just prior to the police locating the body. 10 I -- I think the timeliness of reports. 11 We didn't get even from Crown experts, from Gov -- ones 12 that had associations with, like Dr. Smith, with the 13 Coroner's Office and Sick Children's, even though I 14 wasn't involved in the case, I think it was at the 15 Preliminary that he actually produced his notes, so the 16 Crown and the defence saw them for the first time at -- 17 at that point in time, and that was a year and half or 18 perhaps, two (2) years after the -- the death. 19 So, we -- we need timely production of 20 reports. And I appreciate that, doctors especially, 21 everybody's busy and it's difficult, but that's got to be 22 a consideration. 23 The areas of expertise I think are 24 important as Crowns. I'm not sure even today that if I 25 speak to a doctor, I know the -- the -- all the
2601 idiosyncrasies of all of the areas of expertise of 2 medical witnesses that might be of benefit in determining 3 the truth about a particular situation. 4 And it might be helpful if somewhere we 5 had a database that we could go to to -- to assist us in 6 that regard, so that we know if somebody might have more 7 expertise than the particular expert that we're talking 8 to at a given point in time in a -- in a particular 9 medical field. 10 COMMISSIONER STEPHEN GOUDGE: Are you 11 talking about a database of individuals or of defined 12 areas? 13 MR. EDWARD BRADLEY: Perhaps both. 14 Certainly of defined areas; that was my primary 15 direction, but -- 16 COMMISSIONER STEPHEN GOUDGE: I thought 17 that's what you meant. 18 MR. EDWARD BRADLEY: -- but, hey, I'm 19 always open to getting as much help I can get, and if -- 20 if there are individuals that could be listed in those 21 fields that have been recognized as experts in the past, 22 then that would be of additional benefit, I guess. 23 Those are my comments. 24 25 CONTINUED BY MR. MARK SANDLER:
2611 MR. MARK SANDLER: All right, thank you. 2 And at -- at my peril, I'll just look at all three of 3 you, and is there any other comments that you'd like to - 4 - to make before I conclude the examination-in-chief? 5 MR. BRIAN GILKINSON: Well, Commissioner, 6 if I can just make one (1) comment. 7 COMMISSIONER STEPHEN GOUDGE: Absolutely. 8 MR. BRIAN GILKINSON: Dr. Smith indicated 9 and expressed some concern that so much reliance was 10 placed on his opinion in -- in my case, if you will, and 11 that he thought the police investigation should be the 12 thing that determines who was guilty or who wasn't. 13 I think that juxtaposed with the Chief of 14 Police letter from the Kingston Police Service indicates 15 that there's a bit of a disconnect about how integral the 16 approach to a prosecution has to be, and -- and we're -- 17 I think neither of those parties was particularly mindful 18 of the fact that when a charge is contemplated, if you 19 have a visual image of -- of columns, anybody should 20 start with listing the elements of an offence, a 21 contemplated offence, on column 1. 22 If you take a look at what evidence you 23 have as a police officer on column 2, keeping in mind the 24 charter implications of how you got that evidence. Take 25 a look at column 3 or 4, or whatever you want to call it,
2621 and say, where are the gaps in the evidence that would 2 relate to an essential element of the offence that the 3 Crown's going to have to prove and identify the gaps in 4 your case and take a look at column 4 and say, Now, what 5 can I do as an investigator to deal with those gaps? 6 Now, some of those gaps necessarily 7 involve, and in complex cases, qualified opinion 8 evidence. How am I going to go about getting that and 9 what kind of resources and assistance from the Crown, or 10 the Officer of the Chief Coroner, or the Centre of 11 Forensic Sciences, am I going to have to call on to try 12 and get the answers that address those elements of the 13 offence? 14 A causation is an essential element. If - 15 - and I'm not trying to be critical of the Chief of 16 Police. I think, quite frankly, that seemed to be 17 drafted more from emotion than anything. But if you're 18 taking a look at that and -- and trying to work through 19 those gaps, trying to work through that -- those 20 elements, you're either going to come out at the other 21 end of this process with a very good case or you're not 22 going to be able to address an essential element, in 23 which case you have no reasonable prospect of conviction 24 as a Crown of the -- if the police do decide to lay 25 charges.
2631 The police didn't really have reasonable 2 and probable grounds. They had a suspicion, and that's 3 all that really existed. I'm sorry for being 4 presumptuous, but that's a -- that apparently is all that 5 existed with Mr. Bradley's case at the end of the day. 6 So if everybody kept in mind the elements 7 of the offense and -- and took a look at that grid and 8 took a look at how integral expert evidence may be, and 9 you either have it or you don't and if -- and if it dries 10 up and you can't address causation, it should be easily 11 recognized by everybody involved in that situation, if 12 there's been consultation and communication, but that's 13 the end of the story. 14 But there's no need for this recrimination 15 after the fact. 16 COMMISSIONER STEPHEN GOUDGE: Does early 17 case conferencing speak to that kind of issue, Mr. 18 Gilkinson? 19 MR. BRIAN GILKINSON: It should, it 20 really should. 21 COMMISSIONER STEPHEN GOUDGE: Because 22 there you have the opportunity for the various 23 stakeholders to be part of the ongoing process. 24 MR. BRIAN GILKINSON: And everybody feels 25 they've had a say and they've been heard.
2641 COMMISSIONER STEPHEN GOUDGE: So it that 2 -- I mean, if I say to you, what are ways of going about 3 ensuring that there aren't these communication gaps in 4 the cases that we've heard about today, police and Crown? 5 MR. BRIAN GILKINSON: Well if I can put a 6 plug in for the Ministry, initiatives again, the business 7 of having to communicate with a provincial lead and a 8 team. If you've got one (1) of these cases, and -- and 9 basically taking a good look at the advice you're being 10 offered -- 11 COMMISSIONER STEPHEN GOUDGE: That's in 12 for a Crown though, isn't it? 13 MR. BRIAN GILKINSON: Well intra-Crown in 14 terms of -- but that -- that provincial lead or that -- 15 or that team of experienced crowns is going to indicate, 16 this is what you need to be doing with the other players 17 in the -- in the criminal justice system -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. BRIAN GILKINSON: -- and this is how 20 you should conference and get answers to this, that or 21 the other thing. 22 COMMISSIONER STEPHEN GOUDGE: Explaining 23 the essential building blocks that are necessary to go 24 ahead with the case? 25 MR. BRIAN GILKINSON: Well, we should
2651 know, as Crowns, the essential elements of the offense 2 and the evidence that -- and whether or not we've got the 3 evidence. We're going to need help as police and Crowns 4 with respect to where do we go -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 MR. BRIAN GILKINSON: -- when we need 7 qualified opinion evidence. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 That's helpful. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Thank you very much. 13 That completed my examination-in-chief Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: Well, thank 15 you very much -- 16 MR. MARK SANDLER: Thank you all. 17 COMMISSIONER STEPHEN GOUDGE: -- to the 18 three (3) of you for being prepared to stay. We'll rise 19 then until tomorrow at 9:30 and I suspect there will be a 20 few more questions for you. 21 22 (WITNESSES RETIRE) 23 24 --- Upon adjourning at 4:51 p.m. 25
2661 2 3 4 Certified Correct, 5 6 7 8 ________________________ 9 Rolanda Lokey, Ms. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25