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 22nd, 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 ) 12 13 Brian Gover ) Office of the Chief Coroner 14 Luisa Ritacca ) for Ontario 15 Teja Rachamalla (np) ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron ) 20 Grant Hoole (np) ) 21 22 William Carter (np) ) Hospital for Sick Children 23 Barbara Walker-Renshaw(np) ) 24 Kate Crawford ) 25
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo ) Ontario Crown Attorneys' 3 Veena Verma ) 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 ) 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 ) Defence for Children 3 ) International - Canada 4 5 William Manuel ) Ministry of the Attorney 6 Heather Mackay (np) ) General for Ontario 7 Erin Rizok (np) ) 8 Kim Twohig ) 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, Resumed 4 EDWARD HAROLD BRADLEY, Resumed 5 BRIAN WILFRED GILKINSON, Resumed 6 7 Cross-Examination by Ms. Erica Baron 6 8 Cross-Examination by Mr. Peter Wardle 25 9 Cross-Examination by Ms. Alison Craig 91 10 Cross-Examination by Mr. Louis Sokolov 111 11 Cross-Examination by Ms. Mara Greene 129 12 Cross-Examination by Ms. Jackie Esmonde 170 13 Cross-Examination by Ms. Suzan Fraser 188 14 Cross-Examination by Mr. Brian Gover 204 15 Cross-Examination by Ms. Kate Crawford 221 16 Cross-Examination by Mr. Paul Cavalluzzo 229 17 Re-Direct Examination by Mr. Mark Sandler 259 18 19 Certificate of transcript 282 20 21 22 23 24 25
61 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Okay, I got the list of cross-examination. I 7 was not able to accommodate all your times. I had to cut 8 you all back. 9 But lets begin with you, Ms. Baron. 10 11 CATHERINE TERRI REGIMBAL, Resumed 12 EDWARD HAROLD BRADLEY, Resumed 13 BRIAN WILFRED GILKINSON, Resumed 14 15 CROSS-EXAMINATION BY MS. ERICA BARON: 16 MS. ERICA BARON: Thank you, good 17 morning. My name is Erica Baron. I'm one of the lawyers 18 who acts for Dr. Smith. 19 And Mr. Bradley, and Ms. Regimbal, thank 20 you for your evidence yesterday. I'm not going to have 21 any questions for you today. 22 So, Mr. Gilkinson, I just have a few 23 questions for you. And the questions that I have, the 24 only document that we'll need is PFP144684 which is the 25 overview report on Jenna. And I understand that's Tab 7
71 of the overview report binders. 2 MR. MARK SANDLER: He actually has it at 3 the beginning of his -- 4 MS. ERICA BARON: Does he? 5 MR. MARK SANDLER: -- binder, yeah. 6 MS. ERICA BARON: Okay. So -- sorry, I 7 didn't realize that. Is it -- 8 MR. MARK SANDLER: That's fine. 9 MS. ERICA BARON: Sorry, can you just 10 tell me which tab is it? Is it Tab 1? 11 MR. MARK SANDLER: He's at Tab 1. 12 13 CONTINUED BY MS. ERICA BARON: 14 MS. ERICA BARON: Okay. And I just want 15 to start with -- to clarify a few points from yesterday, 16 Mr. Gilkinson. You said at one point in your evidence 17 that the hair didn't advan -- advance the investigation, 18 that had been seized in this case, and I just want to 19 understand what you meant by that. 20 I -- I take it what you meant was that an 21 analysis was conducted of the hair? 22 MR. BRIAN GILKINSON: And analysis was 23 conducted, yes. 24 MS. ERICA BARON: And the DNA -- DNA was 25 extracted from the hair?
81 MR. BRIAN GILKINSON: Mitochondrial DNA 2 that was not related to any of the major subjects or -- 3 or persons of interest in -- in the investigation. 4 MS. ERICA BARON: Okay. So that's -- 5 when you said it didn't advance, you meant it didn't -- 6 it didn't match to -- 7 MR. BRIAN GILKINSON: Correct. 8 MS. ERICA BARON: -- Jenna's mother for 9 instance? 10 MR. BRIAN GILKINSON: And in the ext -- 11 to the extent that it can be discounted as a factor, I 12 suppose it -- it did advance to that extent. But it 13 certainly didn't have any positive impact in relating to 14 any subject involved in this matter. 15 MS. ERICA BARON: Okay. And you also 16 said early on in your evidence, I think, that there were 17 -- that the only older injuries found on Jenna were the 18 rib fractures. 19 But then later in your evidence you made 20 reference to a liver injury. And I just want to 21 understand. It -- that you understood that the liver 22 injury that was found on Jenna was an older injury? 23 MR. BRIAN GILKINSON: I did not know that 24 at the -- at the time of April the 23rd, 1999 in Dr. 25 Ein's office. What came out of that whole meeting
91 between Dr. Smith and Dr. Ein and the rest of us were the 2 fact that Dr. Smith's opinion that the rib head injuries 3 were old, was unaffected by any discussion with respect 4 to the injuries that actually contributed to Jenna's 5 death. 6 And it was my reliance at that point in 7 time on the fact that the rib head injuries were old and 8 appeared to be consistent with what Brenda had indicated 9 she had done to Jenna a day or two (2) before, that I 10 relied on in going forward with negotiating a plea under 11 the Child and Family Service's Act. 12 Now with respect to the liver injury, I'm 13 still not certain whether that's an older injury than the 14 rest of the injuries that -- that apparently were 15 discussed as -- as being fatal to Jenna. And I think 16 there was some suggestion in -- in the subsequent 17 pathological evidence that perhaps the liver injury was 18 resolving at a different rate, which means it was an 19 older injury. 20 That wasn't the impression I got from Dr. 21 Ein in the meeting on April the 23rd, 1999. 22 MS. ERICA BARON: Okay. And when you 23 were asked about what -- what -- what went right in this 24 investigation, one (1) of the things you identified was 25 Dr. Ein's willingness to -- to come to a meeting and
101 discuss the case? 2 MR. BRIAN GILKINSON: Everybody has to 3 buy into the process of trying to discuss matters before 4 trial and that is one (1) of the things that went right. 5 MS. ERICA BARON: Right. And I take it 6 you weren't meaning to suggest in any way that Dr. Smith 7 was unwilling to attend that meeting? 8 MR. BRIAN GILKINSON: Oh no, he was there 9 and -- 10 MS. ERICA BARON: And -- 11 MR. BRIAN GILKINSON: -- we didn't have 12 to twist any arms to get him there; we just made a 13 request and he certainly was prepared to come. 14 MS. ERICA BARON: And indeed I think you 15 told us that you learned at the time that he'd had a 16 previous meeting with Dr. Ein or that he'd had a previous 17 discussion with -- 18 MR. BRIAN GILKINSON: No -- 19 MS. ERICA BARON: -- Dr. Ein, in any 20 case. 21 MR. BRIAN GILKINSON: -- that didn't come 22 to my knowledge until much later. 23 MS. ERICA BARON: Okay. 24 MR. BRIAN GILKINSON: I don't think 25 anybody acknowledged on April the 23rd, 1999, that Dr.
111 Smith and Dr. Ein had spoken earlier. 2 MS. ERICA BARON: Okay. Now you also had 3 a discussion with Mr. Sandler about who in the 4 investigation process ought to be identifying the need 5 for further opinions. And Mr. Sandler suggested to you 6 that -- well, first of all, you indicated that the Crown 7 and the police might not realize that further opinions 8 might be necessary beyond the pathologist's opinion. 9 MR. BRIAN GILKINSON: Correct. 10 MS. ERICA BARON: And Mr. Sandler then 11 suggested to you that it might be -- the onus might be 12 upon the pathologist to identify that need to the Crown 13 and the police. 14 MR. BRIAN GILKINSON: Or on any expert 15 the Crown and the police go to for assistance initially 16 on any investigation. It might be a pathologist with 17 respect to an investigation such as this, it might be 18 another expert with respect to another set of 19 circumstances. 20 But it's the first expert that is 21 approached that we'll be able to go through a mental 22 calculation of whether or not he or she can assist or if 23 there may be another discipline that should be engaged. 24 MS. ERICA BARON: Right. And I just want 25 to ask you whether -- I assume you're aware that the
121 coroner in this case was Dr. Thompson? 2 MR. BRIAN GILKINSON: Correct. 3 MS. ERICA BARON: And Dr. Thompson is a 4 clinician in Peterborough? He's -- 5 MR. BRIAN GILKINSON: That is correct. 6 MS. ERICA BARON: -- he's a family -- 7 MR. BRIAN GILKINSON: Well -- 8 MS. ERICA BARON: -- doctor. 9 MR. BRIAN GILKINSON: -- he's a family 10 doctor. 11 MS. ERICA BARON: Right. So he deals 12 with -- with individuals, living individuals, in a 13 clinical setting? 14 MR. BRIAN GILKINSON: Well, I -- I 15 imagine he does, given the nature of this practice, yes. 16 MS. ERICA BARON: Right. And I take it 17 you'd agree that there would be a role for the coroner to 18 play in potentially identifying other experts that might 19 be useful in the death investigation process? 20 MR. BRIAN GILKINSON: Oh, absolutely. 21 And we go back to the Office of the Chief Coroner for 22 that kind of assistance of the time. 23 With respect to Dr. Thompson, I don't know 24 when I realized he was the coroner and I don't know what 25 input he had into the initial days following the death of
131 Jenna at all. 2 In terms of whether or not a general 3 practitioner would be able to assist the police in 4 pointing them towards appropriate experts, I don't know 5 whether he could, but he certainly, through the auspices 6 of his office, may be able to make inquiries. 7 MS. ERICA BARON: And I take it part of 8 the reason you don't know how involved Dr. Thompson was 9 early on is because you weren't -- you, yourself, weren't 10 involved during that early phase of the investigation? 11 MR. BRIAN GILKINSON: That is correct. 12 MS. ERICA BARON: And so now if you could 13 turn up paragraph 39 of the Jenna overview report. This 14 is at page 13 -- sorry, page 15 of the document. 15 MR. BRIAN GILKINSON: I'm sorry, if you 16 could just bear with me. I think what I pulled out as an 17 overview isn't necessarily the overview. I'll go back 18 and get that -- 19 MS. ERICA BARON: Fair enough. 20 MR. BRIAN GILKINSON: -- other binder. 21 MS. ERICA BARON: I think it's in Volume 22 I, Tab 7. Sorry, this is -- he's looking at the overview 23 report. 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25 MS. ERICA BARON: What Tab is --
141 COMMISSIONER STEPHEN GOUDGE: Do you have 2 this volume, Mr. Gilkinson? 3 MR. BRIAN GILKINSON: I had that 4 yesterday. Is -- I can deal with that. We've had a 5 couple -- 6 COMMISSIONER STEPHEN GOUDGE: We've got 7 so many volumes it's not surprising they get misplaced 8 from time to time. 9 MS. ERICA BARON: Thank you. 10 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 11 Twohig. It's Tab 1 of the binder with your name on the 12 front of it. 13 MR. BRIAN GILKINSON: I have it now, 14 thank you. Thank you, Commissioner. 15 I'm sorry, what page -- 16 17 CONTINUED BY MS. MS. ERICA BARON: 18 MS. ERICA BARON: So if you can turn 19 forward to page 15 of the overview report. This is the 20 15 that's in the upper most right corner -- 21 MR. BRIAN GILKINSON: I have it. 22 MS. ERICA BARON: -- beside the PFP 23 number. 24 MR. BRIAN GILKINSON: I have it. 25 MS. ERICA BARON: You'll see that there's
151 reference to Dr. Thompson in paragraph 37, then being 2 involved and issuing the warrant for the post-mortem in 3 this case. So that will -- that may just help you in 4 understanding that he -- he was involved from that point. 5 But if you could turn over then to the 6 next -- to the -- to actually paragraph 39 at the bottom 7 of the page. 8 Yesterday you told Mr. Sandler that you 9 didn't believe Dr. Smith had communicated to the police 10 his initial impression that the injuries had been 11 inflicted within hours of death, which you understood was 12 to be his -- you understood that was his evidence at the 13 preliminary inquiry. 14 Do you recall that? 15 MR. BRIAN GILKINSON: His evidence at the 16 preliminary inquiry? 17 MS. ERICA BARON: Was that his first 18 impression was that the injuries were inflicted within 19 hours of death, and you said you didn't think that had 20 been communicated to the police. 21 MR. BRIAN GILKINSON: Yeah, I believe 22 that's correct. 23 MS. ERICA BARON: Okay. I want you to 24 then turn to paragraph 39 of -- of this, and -- and it's 25 a reference to Dr. Smith performing the post-mortem and
161 then at the bottom the very last sentence says: 2 "Constable Kirkland's notes of his 3 attendance at the autopsy stated..." 4 And then over to the next page: 5 "...Dr. Smith concludes that the victim 6 suffered a blow with a blunt object. 7 [Parentheses], (could be fist or foot), 8 [end parentheses], causing a rupture in 9 the duo -- duodenal, pancreas, and 10 liver. There was no evidence that this 11 injury had begun to heal, occurred 12 within a few hours prior to death, 13 obvious evidence, as well, of 14 continuous abuse." 15 MR. BRIAN GILKINSON: Well, I certainly 16 rely on the notes of Constable Kirkland. 17 MS. ERICA BARON: So, it does appear to 18 reflect that Dr. Smith's initial impression indeed was 19 that the injuries were inflicted within hours and that 20 that was communicated to the police. 21 MR. BRIAN GILKINSON: And certainly 22 Constable Kirkland's note is very succinct on that. 23 MS. ERICA BARON: Right. And would you 24 also agree with me that Dr. Smith did indeed point out to 25 the police the importance of ascertaining Jenna's
171 behaviour in the twenty-four (24) hours prior to her 2 death? 3 MR. BRIAN GILKINSON: I understand that 4 he eluded to that. I'm not sure if it was during the 5 autopsy or during the initial conferencing -- 6 MS. ERICA BARON: Okay, so -- 7 MR. BRIAN GILKINSON: -- in the Office of 8 the Chief Coroner. 9 MS. ERICA BARON: -- let me take you to 10 those references, then. If you could turn over to the 11 next page, this is in paragraph 45. 12 MR. BRIAN GILKINSON: Mm-hm. 13 MS. ERICA BARON: So on January 23rd, 14 1997 -- so this is the day after the autopsy: 15 "Detective Constable Lemay spoke with 16 Dr. Peter Clark, the Regional 17 Supervising Coroner, northeast. 18 According to Detective Constable Lemay, 19 Dr. Smith had advised Dr. Clark 20 that..." 21 And if you could just then turn to the 22 second indented paragraph: 23 "...advised of the importance of 24 obtaining the history from J..." 25 Being the babysitter in this case:
181 "...as to the observations of the 2 child, pertaining to such things as 3 eating and behaviour." 4 MR. BRIAN GILKINSON: Okay. 5 MS. ERICA BARON: And then if you could 6 turn over one (1) more page to -- so that's a secondhand 7 Dr. Smith had relayed it to Dr. Clark who in turn relayed 8 it to Constable Lemay. 9 And then if you turn over to paragraph 46 10 it records: 11 "Later that same day..." 12 So we're still on -- we still in January 13 23rd: 14 "...Detective Constable Lemay spoke 15 with Dr. Smith. According to Detective 16 Constable Lemay, Dr. Smith reviewed the 17 autopsy findings with him and advised 18 that it would be important to obtain a 19 history of Jenna's habits and behaviour 20 and any changes prior to her death. 21 According to Detective Constable Lemay, 22 Dr. Smith wished our investigation to 23 focus on determining as best as 24 possible the child's behaviours and 25 habits, the child's natural
191 development, such as speech and 2 activities, when sign of injuries 3 manifested, such as loss of appetite, 4 dizziness, and vomiting." 5 And then talks about the mark on the -- on 6 the deceased's forehead. So I take it you would agree 7 that -- that the -- the importance of Jenna's behaviour 8 was identified to the police by Dr. Smith. 9 MR. BRIAN GILKINSON: It -- it appears to 10 have been identified. I don't know whether or not Dr. 11 Smith requested the police to come back to him or anyone 12 else with respect to that information. 13 MS. ERICA BARON: Right. And I want to 14 just now turn to the portion of your evidence where you 15 said Dr. Smith's evidence shifted dramatically with 16 respect to the timing of the injuries, and essentially he 17 advocated from his former position with respect to when 18 the injuries were inflicted. 19 So, I take it you understood Dr. Smith's 20 evidence at the preliminary inquiry to be that the 21 abdominal injuries, which includes the liver injury in 22 this case, were inflicted -- could be as old as twenty- 23 four (24) to forty-eight (48) -- twenty-four (24) to 24 twenty-eight (28) hours old? 25 MR. BRIAN GILKINSON: I would have to
201 have his evidence in front of me because he detailed a 2 number of injuries and gave them a number of times. So I 3 would need to have it in front of me to be able to say he 4 was talking about the liver injury being twenty-four (24) 5 to twenty-eight (28) hours, as opposed to anything else. 6 I mean -- 7 MS. ERICA BARON: No, I'm -- I'm not 8 asking -- I'm just asking you to agree with me that the 9 -- the top end of the abdominal injuries, taken as a 10 whole, was in the twenty-four (24) to twenty-eight (28) 11 hour range. And I think you told us that yesterday. 12 MR. BRIAN GILKINSON: I understand that-- 13 MS. ERICA BARON: Okay. 14 MR. BRIAN GILKINSON: -- to be the case. 15 MS. ERICA BARON: All right. 16 MR. BRIAN GILKINSON: I always stand to 17 be corrected, though. 18 MS. ERICA BARON: That -- that's fine. 19 So -- so we're -- we're talking that's the upper end. 20 And then you understood that he -- his evidence that -- 21 was that the lower end was in the four (4) to six (6) 22 hour range. 23 MR. BRIAN GILKINSON: I think I -- I 24 think I said six (6) to twelve (12). 25 MS. ERICA BARON: Okay. So six (6) is
211 the lowest, then, was your understanding. 2 MR. BRIAN GILKINSON: That's my 3 recollection of having reviewed the evidence given at the 4 preliminary inquiry. 5 MS. ERICA BARON: Okay. And -- 6 MR. BRIAN GILKINSON: And again, that 7 would depend on me being able to remember what organs he 8 was talking about at that particular time. 9 MS. ERICA BARON: Fair enough. 10 MR. BRIAN GILKINSON: Is it fair to say 11 that you understood that he was making those comments as 12 to timing, based on his examination of the microscopy; 13 ie. the slides taken from those -- from the various 14 organs? 15 MR. BRIAN GILKINSON: It's my 16 understanding that it was based on microscopy, that the 17 opinion in his matter expanded from a short time before 18 death into a time that would have theoretically made -- 19 made Ms. Waudby a legitimate suspect, as well. 20 MS. ERICA BARON: Okay. And Dr. Ein, at 21 the meeting that you had, expressed an opinion about how 22 a child with these sorts of abdominal injuries would 23 behave, correct? 24 MR. BRIAN GILKINSON: That is correct. 25 MS. ERICA BARON: And the investigation,
221 the police investigation, had revealed that Jenna's -- 2 the description of Jenna's behaviour on the day of her 3 death, or the day before her death, were not consistent 4 with how Dr. Ein described a child would behave with the 5 sorts of injuries that she had? 6 MR. BRIAN GILKINSON: I'm still troubled 7 by the fact that if Dr. Ein's description of an 8 individual clear -- in clear extreme pain, not wanting to 9 move, lethargic, you know, perhaps adopting a fetal 10 position, that never appeared to be what Jenna looked and 11 behaved like throughout the evening of January the 21st. 12 MS. ERICA BARON: Okay. Can I just take 13 you back to my question, which was: You understood that 14 the investigation had revealed that Jenna was not acting 15 in a way the Dr. Ein said a child would act with these 16 sorts of abdominal injuries? 17 MR. BRIAN GILKINSON: During the period 18 of time, when? Before five o'clock or after five 19 o'clock? 20 MS. ERICA BARON: Before five o'clock. 21 MR. BRIAN GILKINSON: No, she was going 22 to the park and she was apparently engaging in physical 23 activity. 24 MS. ERICA BARON: Indeed, going to the 25 park was after five o'clock, correct?
231 MR. BRIAN GILKINSON: Oh, and I'm sorry, 2 that's correct. 3 MS. ERICA BARON: Okay. 4 MR. BRIAN GILKINSON: In terms of up to 5 the time when Ms. Waudby turned her over, there didn't 6 appear to be any observation that that child was in 7 difficulty. 8 MS. ERICA BARON: All right. And I just 9 want to understand whether Dr. Smith ever said at the 10 meeting with Dr. Ein, and I put to you that he didn't, 11 that his pathological opinion, based on the review of the 12 microscopy, had changed in the result of what Dr. Ein 13 said? 14 MR. BRIAN GILKINSON: Dr. Ein indicated 15 that the fatal injuries had to have occurred after five 16 o'clock, or at least he was 99 percent sure that that was 17 the case. 18 I went through Dr. Smith's evidence with 19 him initially. I -- what I wanted to do was to go 20 through the preliminary hearing evidence given by Dr. 21 Smith and confirm whether or not he still stuck by his 22 time estimates with respect to that microscopic 23 examination. 24 And he did retreat from that and he did -- 25 I asked him for his opinion, I asked Dr. Ein for Dr.
241 Ein's opinion, and he essentially indicated that there 2 was no way the fatal injuries could have occurred prior 3 to five o'clock. 4 And he was content to agree to Dr. -- with 5 Dr. Ein's opinion. 6 MS. ERICA BARON: And so what I put to 7 you is that Dr. Smith deferred to Dr. Ein's clinical 8 opinion as to how Jenna would have acted with these 9 injures? 10 MR. BRIAN GILKINSON: It wasn't how she 11 would have acted, it was the ultimate bottom line in 12 terms of when those injuries, therefore, must have been 13 inflicted. And he was content to eliminate the longer 14 period of estimates based on healing and based on 15 microscopic examination, and defer to Dr. Ein's opinion 16 that quite frankly the child died much sooner, and -- 17 then -- in relation to her pronouncing time than Dr. 18 Smith had indicated. And Dr. Smith was content to 19 basically indicate the estimates, the time estimates, 20 based on his examination were wrong. 21 MS. ERICA BARON: Did Dr. Smith ever say 22 that he could be more specific about the timing of the 23 injuries based on microscopy alone, at that meeting with 24 Dr. Ein? 25 MR. BRIAN GILKINSON: I'm sorry, did he
251 say he could be more specific? 2 MS. ERICA BARON: Then he had been at the 3 preliminary inquiry, based on microscopy alone? 4 MR. BRIAN GILKINSON: I don't recall 5 that. 6 MS. ERICA BARON: Okay. Thank you, those 7 are my questions. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 9 Baron. 10 Ms. Craig...? 11 MR. PETER WARDLE: Good morning, Mr. 12 Commissioner. 13 COMMISSIONER STEPHEN GOUDGE: Oh, sorry, 14 Mr. -- 15 MR. PETER WARDLE: I've slid in, in Ms. 16 Craig's place. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 MR. PETER WARDLE: She's kindly agreed 19 that I could go first, if that's agreeable to you? 20 COMMISSIONER STEPHEN GOUDGE: That's 21 fine. 22 23 CROSS-EXAMINATION BY MR. PETER WARDLE: 24 MR. PETER WARDLE: Morning. 25 MR. BRIAN GILKINSON: Good morning.
261 MR. EDWARD BRADLEY: Good morning. 2 MR. PETER WARDLE: My name is Peter 3 Wardle and I act for a group of families and caregivers 4 affected by findings made by Dr. Smith in a number of 5 cases, and those include the three (3) cases that you've 6 spoken about in your evidence yesterday. 7 So I act for SM and her father in your 8 case, Ms. Regimbal. I act, obviously as you know, Mr. 9 Bradley, for Louise Reynolds in the Sharon case. And I 10 also act for Jenna in the -- sorry, for Jenna's family, 11 Brenda Waudby and her daughter Justine in your case, Mr. 12 Gilkinson. 13 So I want to start, if I may, with you, 14 Ms. Regimbal, and I want to ask you some questions about 15 the Amber case. And would you agree with me, to start, 16 that this was a complex case? 17 MS. TERRI REGIMBAL: The case became 18 complex. I think that on the initial presentation of the 19 case, on the basis of the evidence that was provided to 20 the Crown attorney's office, it did not appear as complex 21 as it became through the procession of defence witnesses. 22 23 MR. PETER WARDLE: As the case went on 24 and you began to see more and more experts from the 25 defence -- and I'm going to come to this in a minute --
271 but it became a more complex case than you probably had 2 envisaged at the outset. 3 Is that fair? 4 MS. TERRI REGIMBAL: Yes, that's fair. 5 MR. PETER WARDLE: And am I right that it 6 became, to some extent, a dispute over the limits and 7 extent of the Shaken Baby Syndrome? 8 MS. TERRI REGIMBAL: I certainly think 9 that debate arose in the evidence of some of the defence 10 witnesses. The defence witnesses, they did not all share 11 the same opinions. In fact, probably were pretty well -- 12 found themselves all over the spectrum of the issue. 13 MR. PETER WARDLE: And I'm not going to 14 go through these in any detail, but I'm going to suggest 15 to you there were a number of sub-issues in the case, and 16 I'm going to list them and see if you agree with me. 17 One (1) was whether shaking alone could 18 cause the injuries, correct? Do you recall that as being 19 an issue? 20 MS. TERRI REGIMBAL: Well, it was an 21 issue in the sense that the group from the Hospital of 22 Philadelphia indicated that they had been unable to 23 reproduce that type of injury through their experimental 24 models. And while none of them actually said it's 25 impossible, they took the position that they had yet to
281 be convinced it was possible. 2 MR. PETER WARDLE: And that's the Duhaime 3 Study that we've heard a little bit about in these 4 proceedings, correct? 5 MS. TERRI REGIMBAL: Yes, that would be 6 Dr. Duhaime, Dr. Thibault, Dr. Ommaya, Dr. Rorke; I 7 believe that would be the cadre of experts who testified 8 in relation to those points. 9 MR. PETER WARDLE: And then another sub- 10 issue, if I can put it that way, was whether there was 11 evidence of external trauma. And that's the famous 12 subgaleal bruise and who saw it and what did it represent 13 and when did it occur. 14 Do you recall that? 15 MS. TERRI REGIMBAL: Yes. 16 MR. PETER WARDLE: And timing of some of 17 the bruises was also an issue, correct? 18 MS. TERRI REGIMBAL: Yes, that's correct. 19 MR. PETER WARDLE: And as well, the 20 degree of force required to inflict the shaking was also 21 an issue raised by the defence, correct? 22 MS. TERRI REGIMBAL: It depends which 23 aspect of it you're speaking about. If you are 24 discussing that the fact that the defence repeatedly 25 pointed that the babysitter would have been twelve (12)
291 years old, 5 foot 5, 125 pounds, and that they used that 2 often in their examination of experts as to whether or 3 not that individual would be capable of generating enough 4 force to produce that type of closed head injuries. Yes, 5 that's correct. 6 If you're -- you know, there were many 7 different aspects. It was sort of a multi-dimensional -- 8 MR. PETER WARDLE: No, I understand. 9 MS. TERRI REGIMBAL: -- so that's one (1) 10 aspect. 11 MR. PETER WARDLE: And I'm not trying to 12 oversimplify, I'm just highlighting some of the issues. 13 MS. TERRI REGIMBAL: Mm-hm. 14 MR. PETER WARDLE: I'm not going to 15 suggest these are all of the issues. 16 MS. TERRI REGIMBAL: No. So that was one 17 (1) aspect of the degree of force. And the other aspect 18 of the degree of force came from the group from the 19 Hospital of Philadelphia, who indicated that such a 20 significant amount of force would be required, that their 21 understanding to that point was you would need a point of 22 impact for that added jolt to produce the amount of force 23 required in a shaking scenario to produce closed -- the 24 clo -- closed head injuries that would have been referred 25 to as the triad.
301 MR. PETER WARDLE: And do you recall that 2 Dr. Smith in fact gave some evidence on some tests he had 3 conducted on crash test dummies, and he was actually 4 asked some questions about another case that Mr. Bradley 5 had been involved in, the Lawrence case, in which he'd 6 given some evidence about the amount of force that would 7 be capable in a shaking of -- of generating these 8 injuries? 9 Do you recall all that? 10 MR. PETER WARDLE: Well, I certainly 11 recall that the Lawrence case was discussed and that I 12 had transcripts from that case. I don't recall the exact 13 line of questioning surrounding the Lawrence case for Dr. 14 Smith, no. I -- I remember there was some, but I -- I 15 did read over some of the transcripts, but there was a 16 lot of transcripts to read. 17 MR. PETER WARDLE: Of course. And -- and 18 I think we've already covered this, but the age of the 19 child was an issue, whether a classic shaking case would 20 cover a child of this age, and as well the age and size 21 of the alleged perpetrator, correct? 22 MS. TERRI REGIMBAL: I think you're -- 23 you mean to say the age and size of the alleged victim. 24 Is that what you mean to say? 25 MR. PETER WARDLE: Yes.
311 MS. TERRI REGIMBAL: Okay. With regards 2 to -- it wasn't so much -- 3 MR. PETER WARDLE: Although she wasn't a 4 victim at the end of the day with respect, Ms. Regimbal. 5 MS. TERRI REGIMBAL: No, I know, but you 6 called her the perpetrator, you called -- 7 MR. PETER WARDLE: No, no, I said -- 8 MS. TERRI REGIMBAL: -- Amber -- 9 MR. PETER WARDLE: -- the child and also 10 the -- 11 MS. TERRI REGIMBAL: Okay. 12 MR. PETER WARDLE: -- alleged 13 perpetrator. 14 MS. TERRI REGIMBAL: All right. Well, 15 we'll have to be specific because they both would have 16 fit the definition of children -- 17 MR. PETER WARDLE: Well, let me back up 18 and make my -- 19 MS. TERRI REGIMBAL: Sure. 20 MR. PETER WARDLE: -- question more 21 clear. 22 MS. TERRI REGIMBAL: Thank you. 23 MR. PETER WARDLE: The chid who was the 24 alleged victim, one (1) of the issues -- 25 MS. TERRI REGIMBAL: Right.
321 MR. PETER WARDLE: -- was the age and 2 size of the child and whether she fit within the criteria 3 for Shaken Baby Syndrome, correct? 4 MS. TERRI REGIMBAL: Yes. The age and 5 the size of the child, that was an issue that was brought 6 up that caused some of the defence experts some concern 7 about whether or not they would be comfortable in 8 diagnosing Shaken Baby Syndrome. 9 It was also brought up with the experts 10 from the Hospital for Sick Children who indicated that 11 they did not believe it was a problem and that they had 12 infants in their case studies, because they had a 13 statistical overview of Shaken Baby cases through the 14 Hospital for Sick Children. And they indicated that they 15 had children up to, I believe it was twenty-one (21) 16 months, that they had been -- that had been diagnosed, 17 according to their approach, with Shaken Baby Syndrome. 18 So yes, the -- the age was brought up and 19 her height more than her weight because she was a slight 20 -- Amber was a slight girl so she was a bit lightweight. 21 MR. PETER WARDLE: And another issue in 22 the case was the age and size of the alleged perpetrator, 23 correct? 24 MS. TERRI REGIMBAL: Yes, absolutely. 25 Okay.
331 MR. PETER WARDLE: All right. And that's 2 what led Dr. Smith to his famous analogy to his spouse, 3 correct? 4 MS. TERRI REGIMBAL: Well, it -- he 5 certainly did make that analogy. 6 MR. PETER WARDLE: All right. And am I 7 right that on your side you had Dr. Smith and you had a 8 number of clinicians, correct? You had Dr. Driver, Dr. 9 Barker, Dr. Drake -- 10 MS. TERRI REGIMBAL: Dr. Chuang. 11 MR. PETER WARDLE: Correct. 12 MS. TERRI REGIMBAL: And the treating -- 13 some of the treating physicians. Are you meaning on my-- 14 MR. PETER WARDLE: And some of the 15 treating -- 16 MS. TERRI REGIMBAL: -- side in what 17 sense? 18 MR. PETER WARDLE: On the Crown's side of 19 the case. 20 MS. TERRI REGIMBAL: Okay, well, then 21 there was Dr. Pirbhai, Dr. Bronson, Dr. Flatman. And 22 there was a lot more doctors than just the doctors from 23 Hospital for Sick Children. 24 MR. PETER WARDLE: Right. There were the 25 treating doctors from the local hospital in Timmins and
341 there were the doctors from HSC, correct? 2 MS. TERRI REGIMBAL: Right. And from 3 Hospital for Sick Children there would have been Dr. 4 Driver, Dr. Barker, Dr. Smith, Dr. Drake and Dr. Chuang. 5 I believe that was all. 6 MR. PETER WARDLE: And is it fair to say 7 that on the Crown's side of the case, Dr. Smith was 8 probably the most important witness because he'd done the 9 autopsy, correct? 10 MS. TERRI REGIMBAL: I think the other 11 doctors were fairly deferential to Dr. Smith. Obviously, 12 the case could not have proceeded without his opinion, 13 however, I, myself, felt great comfort in knowing that 14 Dr. Jeff (phonetic) Barker, who was known to the be one 15 (1) of the ten (10) top ICU pediatric -- pediatric 16 doctors in the world, you know, shared the views that 17 this was a Shaken Baby Syndrome. 18 And I also found it important that Dr. 19 Driver, who was a senior member of the SCAN Unit agreed 20 with the diagnosis. 21 MR. PETER WARDLE: Mm-hm. 22 MS. TERRI REGIMBAL: And that Dr. Chuang, 23 who was again reputed to be one (1) of the top ten (10) 24 pediatric radiologists in North America, he also agreed 25 with this.
351 So yes, obviously the case could not have 2 proceeded without Dr. Charles Smith's evidence. But 3 there were other medical doctors whose evidence was 4 consistent with his and supportive of his. 5 MR. PETER WARDLE: And is it fair to say 6 that it was important to your case, to the Crown's case, 7 that Dr. Smith's evidence go in well and that he perform 8 as well as he could? 9 MS. TERRI REGIMBAL: Well, I don't really 10 -- I personally wouldn't characterize it that, that he 11 perform as well he could; those are not words that I 12 would use. 13 What I would have hoped is that he would 14 be comprehensive, complete, candid about the issues that 15 he was facing, candid about the points that took Amber 16 outside of the classic definition, fulsome in his 17 explanations about why he felt that those did not detract 18 from a diagnosis of Shaken Baby Syndrome. I just -- 19 MR. PETER WARDLE: And did you feel, as 20 the trial was going along, that that's what he was doing? 21 MS. TERRI REGIMBAL: Yes, I -- I felt he 22 was -- was giving fulsome answers. I mean obviously he 23 gave a lot more fulsome answers in some cases than I 24 might have expected, but when it came to the medical 25 evidence, I think he, in the course of his testimony,
361 answered all the cross-examination questions. He -- I 2 don't think he was particularly evasive or reluctant to 3 discuss the issues that Mr. Renaud brought up. 4 I think that he obviously strayed into 5 areas that he probably did not have -- well, that he did 6 not have expertise to testify in, and I acknowledge that. 7 But again, you had to understand just the atmosphere of 8 the process when Justice Dunn kept repeating, I want as 9 much information as possible, I want as much information 10 as possible. 11 Did I find his references sometimes 12 surprising? Yes. I didn't -- I did not elicit them, you 13 know. 14 MR. PETER WARDLE: You said yesterday 15 that a number of the defence experts were impress -- 16 impressive, and that they raised questions in your mind. 17 Do you recall saying that? 18 MS. TERRI REGIMBAL: Yes. 19 MR. PETER WARDLE: And then you said that 20 it caused you to revisit the case, but you were always on 21 the phone to your cadre at the Hospital for Sick Children 22 and you were reassured by them that Amber did not die 23 from this fall. 24 Do you recall saying words to that effect? 25 MS. TERRI REGIMBAL: Something along
371 those lines, so... 2 MR. PETER WARDLE: Okay. And is it fair 3 to say that throughout the trial -- and this would have 4 been probably the most complex medical case you had done 5 at that point, correct? 6 MS. TERRI REGIMBAL: Yes, overall. I had 7 been involved in a first degree murder case that had 8 complex medical issues just prior to that, that did exact 9 -- did deal with the causation of death and did deal with 10 an exhumed twelve (12) year old who had to be autopsied 11 after burial and after an original autopsy. So we did 12 have some complex medi -- medical issues and I believe 13 that I was responsible for the examination-in-chief of 14 that pathologist, and I would have done that prior to 15 this case. 16 But certainly, overall, it was the most 17 complex in the sense that it called for a great effort to 18 try and understand the subtleties and the intricacies of 19 what Dr. Duhaime and her group were doing, of -- of what 20 the different experts who were called outside of that 21 group were testifying to, so yes, I would say it 22 certainly was the most complex medical case I've been 23 involved in. 24 MR. PETER WARDLE: And -- and is it fair 25 to say you were very reliant on the feedback you were
381 getting from the people you talked to at the Hospital for 2 Sick Children, as the case went along and you began to 3 hear the various theories of the defence experts? 4 MS. TERRI REGIMBAL: Well, I took their 5 comments very seriously. I had a lot of respect for 6 them. And yes, I -- I don't know if the word "reliant" 7 might not be what I would use it -- I was reassured by 8 the information. 9 They pointed, you know, issues out that 10 maybe I would bring back to the cross-examination table 11 to ask defence expert as to why, you know, did you 12 consider this? 13 MR. PETER WARDLE: Mm-hm. I guess what I 14 was getting at, Ms. Regimbal, is I didn't have the sense 15 yesterday that when you talked to your cadre at the 16 Hospital for Sick Children that they had any doubts. 17 Is that fair? 18 MS. TERRI REGIMBAL: Okay, yeah. I -- I 19 wouldn't call them my cadre. 20 MR. PETER WARDLE: That was your term. 21 MS. TERRI REGIMBAL: No, I said they were 22 a cadre of experts; it wasn't my cadre. 23 MR. PETER WARDLE: All right. 24 MS. TERRI REGIMBAL: Right. 25 MR. PETER WARDLE: The cad -- the cadre.
391 MS. TERRI REGIMBAL: Mm-hm. 2 MR. PETER WARDLE: When you talked to the 3 cadre -- 4 MS. TERRI REGIMBAL: Yes. 5 MR. PETER WARDLE: -- at Hospital for 6 Sick Children -- 7 MS. TERRI REGIMBAL: Yes. 8 MR. PETER WARDLE: -- I suggest to you 9 that you never had the sense that they had any doubts. 10 MS. TERRI REGIMBAL: No. 11 MR. PETER WARDLE: And in particular, you 12 never had the sense that Dr. Charles Smith had any doubts 13 whatsoever, correct? 14 MS. TERRI REGIMBAL: I never had the 15 sense that any of them doubted the diagnosis of Shaken 16 Baby Syndrome. 17 MR. PETER WARDLE: And this case 18 proceeded very quickly to trial; there was no preliminary 19 hearing, correct? 20 MS. TERRI REGIMBAL: Well, it was under 21 the Young Offender's Act, so no, there was not a 22 preliminary hearing. And I -- it didn't proceed as 23 quickly, I think, as we would have liked, because I 24 believe, if I recall correctly, we did have an original 25 date of a July date that had to be adjourned, and I do
401 recall that there was numerous adjournments and that at 2 one (1) point Mr. Renaud and I actually wrote -- took a 3 fairly outrageous step of writing. 4 I believe we wrote together a letter to 5 the Senior Regional Judge in the area Justice Dunn 6 presided in, asking him to free Justice Dunn up because 7 the adjournment was going to be -- I can't remember, but 8 maybe six (6) to eight (8) months, and Justice Dunn had 9 indicated he wasn't available -- he had his trial 10 commitments -- and we actually wrote the Regional Justice 11 asking it be freed up. 12 So we tried to expedite it. We all 13 recognized that this was a difficult case, because it's a 14 small community, there was a lot of questions, both 15 Gilles and I wanted to deal with this and have it 16 completed as quickly as -- as possible for everyone's 17 sake. 18 MR. PETER WARDLE: I guess what I'm 19 pointing to is there was some discussion yesterday of 20 freezing of experts -- 21 MS. TERRI REGIMBAL: Yes. 22 MR. PETER WARDLE: -- and whether the 23 defence has a feeling of comfort. Once the experts have 24 given their evidence at a -- 25 MS. TERRI REGIMBAL: Mm-hm.
411 MR. PETER WARDLE: -- a prelim, that now 2 they can disclose without fear that the Crown might 3 misuse the information. 4 MS. TERRI REGIMBAL: Yes. 5 MR. PETER WARDLE: And whether that's 6 valid or not, there wasn't that opportunity in this case, 7 was there? 8 MS. TERRI REGIMBAL: Well, Mr. Renaud had 9 that opportunity to be with -- to meet with Dr. Charles 10 Smith. I don't think, as far as I was aware, there were 11 any restrictions put on what he was doing. I'm sure he 12 could have tape recorded the whole conversation had he 13 been inclined. I wouldn't have been opposed to that. I 14 would have like to have had the tape recording of what he 15 had to say too. 16 So there -- while perhaps he chose not to 17 do that, I don't -- I think the opportunity was there to 18 freeze Dr. Smith's evidence, given the access that Mr. 19 Renaud had to him. Mr. Renaud could have gone back and 20 seen him again and again. I would have not been opposed 21 to that at all. 22 MR. PETER WARDLE: But, Ms. Regim -- 23 Regimbal, isn't that why he was writing to you asking for 24 a more comprehensive medical report? 25 He wanted some way to nail Mr. Smith down,
421 and -- Dr. Smith down. And that would be different then 2 going and interviewing him and potentially having to be a 3 witness himself at -- at the trial. 4 MS. TERRI REGIMBAL: Well, sure I 5 understand he wanted a more fulsome report. I'm not 6 trying to dodge around that question, but the way you 7 framed it, is it imp -- it was impossible to freeze Dr. 8 Smith's evidence. I can't accept that. 9 I -- if I had been defence counsel, I 10 would have taken a tape recorder in there and I would 11 have said, Dr. Smith, you now, I'm slow, I can't keep up 12 with all these medical terms, and I'm sure Dr. Smith 13 would have said fine. He -- he wasn't one to shrink from 14 his opinions from his -- being able to justify his 15 opinions. 16 And in fact -- you know, it's -- now a 17 days, okay, I don't take a tape recorder in when I go to 18 see a pathologist, but I always write them back making 19 sure that I have a written record of it. I think that 20 would have been a very prudent thing to do. 21 MR. PETER WARDLE: Now, let me just ask 22 some questions about after the case. 23 MS. TERRI REGIMBAL: Yes. 24 MR. PETER WARDLE: And I want to make 25 sure I've got your evidence correct. I think what you
431 told us yesterday was, that you're sure you read it, but 2 you can't recall the circumstances in which you first 3 read Justice Dunn's decision, correct? 4 MS. TERRI REGIMBAL: Yes, I would have 5 read it, but I don't have an independent recollection 6 today of sitting down with it in front of me and reading 7 it. 8 MR. PETER WARDLE: You -- you also told 9 us that you weren't surprised that the Judge acquitted, 10 because there was some evidence, some reputable evidence, 11 called by the defence that the child had died as a result 12 of a fall, correct? 13 MS. TERRI REGIMBAL: That the child could 14 have died from a fall, yes. 15 MR. PETER WARDLE: Now what you said to 16 us yesterday in response to a question from My Friend 17 about the conference at Hospital for Sick Children -- 18 MS. TERRI REGIMBAL: Yes. 19 MR. PETER WARDLE: -- you said there was 20 a sense that reasonable experts can disagree. 21 Do you recall saying that? 22 MS. TERRI REGIMBAL: Yes, I think that's 23 fair. 24 MR. PETER WARDLE: And is that the take 25 away you had from the decision when you read it?
441 MS. TERRI REGIMBAL: No, that's not the 2 take away I had from the decision when I read it. 3 MR. PETER WARDLE: And did you have the - 4 - a take away, if I can put it that way, that in fact 5 Justice Dunn was saying something a little more 6 fundamental about what had happened in the case? 7 MS. TERRI REGIMBAL: I -- my -- it was a 8 lengthy, well reasoned, and detailed judgment. I 9 wouldn't want to do it a disservice by giving it a two 10 (2) liner. What I felt was -- or in the judgment that 11 was of significance, was a finding of credibility in 12 favour of the babysitter. 13 MR. PETER WARDLE: Mm-hm. 14 MS. TERRI REGIMBAL: To me, a lot hinged 15 on that -- 16 MR. PETER WARDLE: Mm-hm. 17 MS. TERRI REGIMBAL: -- in the sense of 18 my prosecutorial approach to it. And it was clear that 19 Justice Dunn made a positive finding of credibility, you 20 know, for the babysitter. So that was one (1) thing that 21 I took from it. And once he did that, you know, then 22 that naturally would flow into how he reasoned out other 23 areas and that's, I believe, why he put it at the start 24 of his judgment. 25 I took away from it that he felt Dr. Smith
451 had not done the standard of work that he would have 2 wanted him to do to be able to conclusively rely on his 3 findings and conclusions. 4 I drew from that that he recognized this 5 was a very complex medical area. He -- he did not wish 6 to enter into the arena and try and decide whether you 7 can shake a baby by shaking alone, whether you need 8 trauma, whether you can only have these injuries from 9 trauma. So he clearly did not want to really enter into 10 that and make any conclusions, but I think he 11 acknowledged that there was a debate starting in this 12 area and that he found it to be a reasonable debate. 13 I don't know -- I don't know if this 14 answers your questions. I mean, I -- once he accepted 15 the babysitter's credibility and once he found Dr. 16 Charles Smith to be perhaps not up to the standards he 17 would have wanted in the sense of thoroughness and -- and 18 just general approach to the whole case, then really an 19 acquittal probably would have been an inevitable result. 20 MR. PETER WARDLE: Well, let's just 21 unpack that a little. 22 MS. TERRI REGIMBAL: Okay, sure. 23 MR. PETER WARDLE: Would you agree with 24 me to this extent, that Justice Dunn concluded he 25 accepted the science that short falls can occasionally
461 kill? 2 MS. TERRI REGIMBAL: Yes, because of the 3 experts who came and who testified that within their 4 experience they had seen it, yes. 5 MR. PETER WARDLE: And would you agree 6 with me that he was in fact highly critical of Dr. Smith? 7 MS. TERRI REGIMBAL: Yes. 8 MR. PETER WARDLE: And let me suggest a 9 number of ways in which he made that clear. 10 He was critical of -- that his post-mortem 11 report was not thorough, correct? 12 MS. TERRI REGIMBAL: Maybe you could just 13 refer me to that particular point. 14 I agree there -- he -- I can tell you what 15 I recall from having read it. He certain -- 16 MR. PETER WARDLE: No, you know, 17 unfortunately, I get to ask the questions in this -- 18 MS. TERRI REGIMBAL: No, I'm just trying 19 to -- 20 MR. PETER WARDLE: -- process. 21 MS. TERRI REGIMBAL: No, that's -- I'm 22 not trying to ask questions, I was just going to tell you 23 if I tell you the points that I recall specifically then 24 you can direct me to any points you feel I've missed. I 25 know you --
471 MR. PETER WARDLE: Fair enough. 2 MS. TERRI REGIMBAL: I know -- is that -- 3 MR. PETER WARDLE: Fair enough. 4 MS. TERRI REGIMBAL: -- fair? 5 I know he said that Dr. Smith did not 6 approach it with an open mind, okay, so that was one (1) 7 thing. I know he said that Dr. Smith was overconfident 8 in his responses, even so far as taking the position -- 9 and it was a position that surprised me too by the way -- 10 that even if there had been a linear fracture he still 11 would have diagnosed Shaken Baby Syndrome. He indicate - 12 - and I think Judge Dunn referred to that as "he refused 13 to budge." 14 He didn't follow his own published 15 guidelines for doing a pediatric autopsy which included 16 not having a full skeletal x-ray or not ensuring one (1) 17 was done. 18 He -- those are the ones that I remember 19 that stand out. So, you know, he could have said that 20 the autopsy was not thorough, I just -- I just don't at 21 this particular second have that independent 22 recollection. 23 MR. PETER WARDLE: All right. I think 24 that's really what I wanted to get to. I'll just give 25 you the reference to the post-mortem report not being
481 thorough. 2 MS. TERRI REGIMBAL: Yeah. 3 MR. PETER WARDLE: It's actually in the 4 written decision at page -- in our decision it's -- it's 5 page 47 -- 6 MS. TERRI REGIMBAL: Okay. 7 MR. PETER WARDLE: -- of the computer -- 8 hopefully, you have the same as me. 9 MS. TERRI REGIMBAL: I hope so. 10 MR. PETER WARDLE: It looks like it's 11 page 46 of the Judgment. 12 MS. TERRI REGIMBAL: I've got it. 13 MR. PETER WARDLE: PFP -- 14 MS. TERRI REGIMBAL: 124293? 15 MR. PETER WARDLE: I have a different one 16 (1) but there are a number of copies of Justice Dunn's 17 decision floating about here. It would be page 46 of the 18 written Judgment. 19 MS. TERRI REGIMBAL: Yes. Yes, okay, I 20 remember that now. 21 MR. PETER WARDLE: All right. 22 MS. TERRI REGIMBAL: That he had 23 testified verbally to some things I believe that he had 24 left out of his autopsy report and so -- 25 COMMISSIONER STEPHEN GOUDGE: What is the
491 number again? 2 MS. TERRI REGIMBAL: -- that was a 3 criticism. 4 COMMISSIONER STEPHEN GOUDGE: Look at a 5 version up on the screen. Do have a PFP number there, 6 Mr. Wardle? 7 MR. PETER WARDLE: I have PFP000118. 8 MS. TERRI REGIMBAL: And he criticized 9 the lack of communication I think between Charles Smith 10 and the other individuals -- 11 COMMISSIONER STEPHEN GOUDGE: Forty-four 12 (44). 13 MR. PETER WARDLE: And it would be page -- 14 COMMISSIONER STEPHEN GOUDGE: At what 15 page? 16 MR. PETER WARDLE: -- 46. 17 COMMISSIONER STEPHEN GOUDGE: Forty-six 18 (46). 19 MR. PETER WARDLE: I'm sorry, page 47, in 20 the electronic copy. And you'll see at the bottom of the 21 page the reference to Dr. Smith; had the time to do a 22 thorough autopsy report. 23 MS. TERRI REGIMBAL: Okay, I don't have - 24 - on my 47 is not that. All right. So, okay, I have it. 25 It's my 46. I've got it, yes.
501 2 CONTINUED BY MR. PETER WARDLE: 3 MR. PETER WARDLE: So just -- first of 4 all, dealing with the conference at the hospital. 5 MS. TERRI REGIMBAL: Yes. 6 MR. PETER WARDLE: My Friend, Mr. 7 Sandler, asked you about the substantive issues in the 8 case and whether the kinds of fall that could call death 9 or serious brain injury in the absence of trauma, whether 10 that issue was discussed at this meeting. And he pointed 11 out that it's not really referred to in the notes and you 12 said that was a fair comment. 13 And I know it's a long time ago, but I 14 know you've gone through these notes looking at your own 15 involvement in this meeting; it -- it doesn't appear that 16 there was a discussion about Justice Dunn's conclusion on 17 the short fall issue at the meeting, correct? 18 MS. TERRI REGIMBAL: All I can say is I 19 do see that I offered to give them transcripts from the 20 defence experts, and I did see someone notating that 21 perhaps they wanted Dr. Duhaime and Dr. Ferguson's 22 evidence. To me, that might denote that they were 23 interested in knowing what those two (2) individuals had 24 to say. 25 Dr. Ferguson was a -- a pre -- preeminent
511 expert in his field, and Dr. Duhaime was, in a sense, the 2 leader, the forefront, of the kind of research that was 3 being done at university for Philadelphia. 4 I don't have any specific recollection 5 beyond the fact that I see there's a number of references 6 in those notes to how do we know what defence is going to 7 say, and this reference where I offered to give them the 8 transcripts and told them how much it would cost. And 9 then later in another note, there was Dr. Duhaime and Dr. 10 Ferguson listed. Whether they ever followed up on that, 11 I can't remember that. 12 MR. PETER WARDLE: My -- and the 13 Commissioner asked you a question yesterday which was, at 14 the end of the meeting were the doctors as firm in their 15 view as when they gave their evidence, and you said, yes, 16 absolutely. 17 MS. TERRI REGIMBAL: Yes, I do believe 18 that. 19 MR. PETER WARDLE: And -- and does that 20 seem a little troubling in retrospect, that -- and -- and 21 I'm focussing more perhaps on Dr. Smith, but all the 22 people who attended this meeting don't appear to have 23 taken away very much from judge's -- Justice Dunn's 24 findings on the science. 25 MS. TERRI REGIMBAL: Well, I think that's
521 true; I think they didn't. But I also think that it's 2 always important for us to remember we're in January of 3 2008. This was in 1992, and I think that even -- and 4 again, I -- I didn't go through it intensely, but what I 5 read about in Dr. Whitwell's and -- tran -- testimony -- 6 MR. PETER WARDLE: Mm-hm. 7 MS. TERRI REGIMBAL: -- it wasn't really 8 until the mid '90s and late '90s that there began to be 9 an accepted view that small falls can cause massive 10 devastating internal head injuries. 11 So if you ask me, is it troubling, I have 12 to look at it in the perspective of that. I thought they 13 were all reasonable professional people. I thought that 14 there was a purpose there and I assumed that part of the 15 purpose of that meeting is that they would go back and 16 they would read these transcripts, that they would read 17 Judge Dunn's judgment and that they would take away from 18 it what they want. 19 It wasn't really for me to tell them who 20 was right or wrong about the science. It was only for me 21 to offer my views on what happened in the case and offer 22 them the opportunity to have the transcripts from these 23 experts. And they did make the comment that the defence 24 experts raised a reasonable doubt that perhaps ought to 25 have triggered for them the next thought: Should we be
531 looking close -- more closely at -- 2 MR. PETER WARDLE: Mm-hm. 3 MS. TERRI REGIMBAL: -- this. But did 4 they or didn't they? I don't know what they did after 5 that meeting. 6 MR. PETER WARDLE: So what about the 7 performance of Dr. Smith, one (1) of your key witnesses? 8 MS. TERRI REGIMBAL: Yes? 9 MR. PETER WARDLE: Did you get any sense 10 that there was anyone at Hospital for Sick Children -- 11 MS. TERRI REGIMBAL: Hmm. 12 MR. PETER WARDLE: -- who was looking at 13 that issue? 14 MS. TERRI REGIMBAL: Well, I did bring up 15 the fact that Justice Dunn criticized that he approached 16 it and he didn't have an open mind. I brought that up at 17 the meeting. 18 You know, I have pretty vague 19 recollections of the meeting. I didn't even remember it 20 until I saw the actual notes. And I wouldn't have been 21 the prime mover and shaker there because I didn't have a 22 preestablished relationship with those doctors. But I 23 can't -- I can't remember there being any willingness to 24 look at that. 25 MR. PETER WARDLE: And what about you,
541 Ms. Regimbal? You go onto your next case, do you leave 2 the Amber decision and that's really all you have to do 3 at this point? You step out of the -- of the scene, so 4 to speak? 5 MS. TERRI REGIMBAL: Well, I understand 6 that I had forwarded the judgment to the Hospital for 7 Sick Children. 8 MR. PETER WARDLE: Mm-hm. 9 MS. TERRI REGIMBAL: I viewed them as Dr. 10 Smith's employer. I had taken the time -- it's not a 11 short jaunt from Timmins to Toronto -- I'd taken the time 12 to come to Toronto for this meeting to assist them in 13 assessing it and to try to improve the process. Apart 14 from that, that was the end of my obligation as I saw it. 15 I certainly, when contacted by other 16 Crowns later years, made Justice Dunn's decision and Dr. 17 Duhaime's transcripts or the articles that I had 18 available for them, if they were facing the same 19 situation, but that was pretty well all I did. 20 MR. PETER WARDLE: But you would have 21 realized, presumably, that Dr. Smith would also, just 22 like you, he'd go onto his next case, right? 23 MS. TERRI REGIMBAL: Yes. 24 MR. PETER WARDLE: And you knew he was 25 running this Unit, did you know that, at the Hospital for
551 Sick Children? 2 MS. TERRI REGIMBAL: I don't know. 3 MR. PETER WARDLE: All right. You knew 4 he was an expert on Shaken Baby Syndrome. 5 MS. TERRI REGIMBAL: Certainly. 6 MR. PETER WARDLE: You knew he would be 7 called by the Crown in the next case that came along. 8 MS. TERRI REGIMBAL: Presumably. 9 MR. PETER WARDLE: And did you think you 10 had any obligation to raise any alarm bells about him? 11 MS. TERRI REGIMBAL: No, I don't think I 12 felt I had an obligation at that point. I mean, I could 13 assume safely that this reasonable professional man would 14 read this judgment over, that he may take it to heart, 15 and that he may pull up his socks on some of the areas 16 that Justice Dunn criticized him on. 17 I mean, we had a meeting. To me part of 18 the purpose of that was how to improve, and that included 19 Dr. Charles Smith; how to improve what he was doing. I 20 don't -- I -- I didn't hear really anything negative. 21 I suppose had I heard an alarm, I would 22 have possibly written a colleague and said, Now wait a 23 minute, you better ha -- make sure you have this 24 judgment, but I had no reason in January of 1992 -- 25 sixteen (16) years ago -- to think that he wouldn't take
561 this to heart. 2 There had been, as far as I was aware, no 3 criticisms of him up to this point. He seemed to be 4 someone who, on the exterior, was -- was willing to learn 5 from this. He seemed like a reasonable individual that 6 could take criticism. 7 And so, no, I -- I didn't feel I had any 8 obligation at that point to do anymore than that. I -- I 9 knew that Ms. -- that Gilles Renaud had a copy of it. I 10 assumed that he would circulate it with in -- with 11 friends. 12 I assumed that the criminal lawyers have 13 their network of communication. It was a little bit 14 before internet, like emails, where we could just easily 15 send things to people, but I did keep the box of articles 16 and material in case I was ever going to have to deal 17 with it again; in case someone else would have to deal 18 with it again, so I assumed that -- that Gilles Renaud 19 would have sent the -- this out. 20 In fact, I think he wrote an article on 21 this -- this case that would have been published in a 22 journal. I'm pretty sure I read an article by Gilles 23 Renaud on that. 24 MR. PETER WARDLE: All right, and -- and 25 I -- I don't want to single you out.
571 MS. TERRI REGIMBAL: Mm-hm. 2 MR. PETER WARDLE: There would have been 3 no Crown policy at the time that would have said you need 4 to do anything with this decision, correct, and -- and 5 there still isn't today, aside from the document we 6 looked at yesterday, is that correct? 7 MS. TERRI REGIMBAL: Well, I think there 8 is policies about alerting the Centre of Forensic Science 9 if there's difficulties with certain forensic experts. 10 I don't know it off -- by heart, but 11 certainly if I had difficulties with an expert, I would 12 feel very comfortable in going to my Regional Director 13 and pointing this out and looking at the policy on 14 forensic experts with the Centre of Forensic Science and 15 appro -- and doing whatever I was supposed to do under 16 that policy. 17 But I -- at that time, you know, I -- I 18 did what I thought -- I thought I did what I should do. 19 I attended that meeting. I took time away from my family 20 to go down there and to try and assist. Everybody seemed 21 well-intentioned at the meeting and seemed like they 22 wanted to improve their process. 23 I agree they did not seem to want to 24 consider that their science was wrong, but that may just 25 have been a reflection of it being 1992.
581 And up to that point, I hadn't really 2 heard any criticisms of Charles Smith. All I'd heard, 3 even from the Deputy Chief Coroner of the Province, was 4 this man's the foremost Canadian expert in pediatric 5 pathology. 6 And I noticed that the doctors even 7 deferred to him, someone even like a ju -- Dr. Jeff 8 Barker -- 9 MR. PETER WARDLE: Mm-hm. 10 MS. TERRI REGIMBAL: -- who I had so much 11 respect for because he was so experienced and so well 12 respected internationally. He -- it was obvious he 13 deferred to and had respect to Charle -- for Dr. Charles 14 Smith. 15 MR. PETER WARDLE: Let me -- let me try 16 and put this in a little bit of a different context, Ms. 17 Regimbal. We're -- we're looking at another case in 18 these proceedings -- 19 MS. TERRI REGIMBAL: Okay. 20 MR. PETER WARDLE: -- and it's a case 21 from the late '90s and it's called Tyrell, and it's not a 22 case you will know anything about. 23 MS. TERRI REGIMBAL: That's correct. 24 MR. PETER WARDLE: But let me just tell 25 you a tiny bit about it.
591 MS. TERRI REGIMBAL: Sure. 2 MR. PETER WARDLE: All right? A 3 caregiver brings a child to the hospital in extremis and 4 claims that the child has fallen off a coffee table. The 5 child dies. Dr. Charles Smith does the autopsy. 6 The caregiver is charged as a result of 7 the child's death and Dr. Charles (sic) testifies at the 8 preliminary inquiry, okay? 9 MS. TERRI REGIMBAL: Yes. 10 MR. PETER WARDLE: And I'm giving you 11 just the bare bones, so if I'm over simplifying, someone 12 here will -- will tell me. 13 MS. TERRI REGIMBAL: Sure. 14 MR. PETER WARDLE: But if we just put for 15 a moment, and I'm going to ask you if we can turn up -- 16 this is in the overview reports which would be a binder 17 you may not have -- 18 MS. TERRI REGIMBAL: I don't have it. 19 MR. PETER WARDLE: -- it's Volume II, Tab 20 17. 21 COMMISSIONER STEPHEN GOUDGE: Mr. 22 Gilkinson may have had it. It's a big white book. 23 MR. PETER WARDLE: Yeah. 24 COMMISSIONER STEPHEN GOUDGE: Yes, he had 25 the binder for... They are white binders. Tyrell would
601 be in Volume II, Mr. Manuel, tab... 2 MR. WILLIAM MANUEL: Thank you, sir. 3 COMMISSIONER STEPHEN GOUDGE: Tab 17? 4 MS. TERRI REGIMBAL: Okay, I have the 5 report in front of me. 6 7 CONTINUED BY MR. PETER WARDLE: 8 MR. PETER WARDLE: So just keep the Amber 9 report which I think is in your first Volume, Tab I, in 10 front of you. 11 MS. TERRI REGIMBAL: I don't know if I 12 have enough room to do that. 13 MR. EDWARD BRADLEY: Do you want me to 14 move my stuff? Okay. 15 16 (BRIEF PAUSE) 17 18 MS. TERRI REGIMBAL: All right, I have 19 both overview reports in front of me. 20 MR. PETER WARDLE: So if you go in the 21 Amber report -- 22 MS. TERRI REGIMBAL: Yes. 23 MR. PETER WARDLE: -- and you turn to 24 paragraph 100. 25
611 (BRIEF PAUSE) 2 3 MS. TERRI REGIMBAL: Yes. 4 MR. PETER WARDLE: And you'll recall that 5 this is some of the evidence that Dr. Smith gave at the 6 trial of SM, correct? 7 MS. TERRI REGIMBAL: Yes. 8 MR. PETER WARDLE: Okay. And that 9 evidence was given, according to the footnote, in -- 10 looks like February of 1990, do you see that? Maybe I 11 have a -- maybe I have a date -- sorry, it's -- it's 12 December of 1990. 13 MS. TERRI REGIMBAL: Well, in any event, 14 it's -- it's 1990. 15 MR. PETER WARDLE: It's in 1990. 16 MS. TERRI REGIMBAL: I think he came in 17 February. I'm not sure. I mean, he testified on a 18 number of different occasions, -- 19 MR. PETER WARDLE: All right. 20 MS. TERRI REGIMBAL: -- but it might be 21 February 12th. 22 MR. PETER WARDLE: I'm not sure I need to 23 know the month -- 24 MS. TERRI REGIMBAL: No. 25 MR. PETER WARDLE: -- just the year,
621 1990. 2 MS. TERRI REGIMBAL: Sure. 3 MR. PETER WARDLE: So now let's -- let's 4 just have a look at Tyrell. 5 MS. TERRI REGIMBAL: Yes. 6 MR. PETER WARDLE: Volume 17 and ask you 7 to turn to paragraph 168? It's page 79 of the electronic 8 copy of the overview report, PFP144019. 9 MS. TERRI REGIMBAL: Paragraph 168, 10 'cause I have a different page. 11 MR. PETER WARDLE: Sorry, paragraph 168 12 starts at page 78 of the electronic copy. 13 MS. TERRI REGIMBAL: Okay. Mine's 75, 14 but I've got the -- I've got the paragraph. With respect 15 to the degree of force? 16 MR. PETER WARDLE: Correct. 17 MS. TERRI REGIMBAL: Yes. 18 MR. PETER WARDLE: And if you just read 19 to yourself over the following two (2) pages, and this is 20 evidence given at Tyrell's preliminary inquiry. 21 MS. TERRI REGIMBAL: So you want me to 22 read paragraphs 168 through what? The entire 168 then? 23 MR. PETER WARDLE: Please, if you don't 24 mind. 25 MS. TERRI REGIMBAL: Sure.
631 MR. PETER WARDLE: And you can just -- 2 MS. TERRI REGIMBAL: Sure, no problem. 3 MR. PETER WARDLE: Read that quickly to 4 yourself, and you'll see, in particular, at page 77 of 5 the printed version is the one I'm going to direct you 6 to. 7 MS. TERRI REGIMBAL: Okay, I'll just take 8 a few minutes. 9 10 (BRIEF PAUSE) 11 12 MS. TERRI REGIMBAL: So I've read 13 paragraph 168 now. 14 MR. PETER WARDLE: So first of all, does 15 it ring any bells? Does it seem familiar in any way? 16 MS. TERRI REGIMBAL: I don't know what 17 you mean by that. Do you mean does it reflect what he 18 said at the Amber case? 19 MR. PETER WARDLE: Does it -- does it 20 strike you in any way odd or unusual that almost ten (10) 21 years later, Dr. Smith is still repeating in very similar 22 language -- very definitive language -- the same evidence 23 he gave, that short falls do not kill, in the Amber case? 24 MS. TERRI REGIMBAL: I don't mean to be 25 difficult but he actually says that in unusual cases
641 children could fall and die from epidural hemorrhages. 2 So I think that's quite different. I don't remember that 3 being discussed at all in 1990 -- 4 MR. PETER WARDLE: You don't see any -- 5 MS. TERRI REGIMBAL: -- in my case. 6 MR. PETER WARDLE: -- parallels at all, 7 Ms. Regimbal, between his -- 8 MS. TERRI REGIMBAL: But that's not what 9 you're -- 10 MR. PETER WARDLE: -- his evidence in the 11 two (2) cases? 12 MS. TERRI REGIMBAL: That's not what 13 you're asking me. Of course, I see parallels. I see 14 parallels in the sense that Dr. Smith is testifying that 15 it would be very exceptional for a child to die from a 16 small fall. 17 But in 1990, he said it didn't happen. He 18 didn't even allow for the exceptional. So that's a big 19 difference. 20 Do I see a parallel that he says -- yes, 21 there's a parallel, but it's not the same. It's a big 22 difference between 1990 and whenever this evidence was 23 given. 24 MR. PETER WARDLE: All right. Does it -- 25 does it -- you won't be surprised to learn that Dr. Smith
651 was cross-examined by the defence at the Preliminary on 2 his evidence in the Amber case? 3 MS. TERRI REGIMBAL: No, that would not 4 surprise me. 5 MR. PETER WARDLE: Given the evidence 6 you've just read, it would be the logical place to start, 7 would it not be? 8 MS. TERRI REGIMBAL: Well, I think the 9 logical place to start would be with the literature and 10 what it reflects in the sense of a general scientific 11 consensus. Certainly then, I think, if you were cross- 12 examining an expert you would go back to possibly other 13 area -- times they've testified where you could point to 14 inconsistencies with the positions they took in a 15 previous trial versus what they're taking now in this 16 trial. 17 MR. PETER WARDLE: I guess my -- my point 18 really is, you know, you have this decision. You've told 19 us that you agree that it was highly critical of Dr. 20 Smith? 21 MS. TERRI REGIMBAL: Yes. 22 MR. PETER WARDLE: It had a view of the 23 science which was different than Dr. Smith's view at the 24 time? 25 MS. TERRI REGIMBAL: All of the doctors
661 from Hospital for Sick Kids. 2 MR. PETER WARDLE: All of the doctors 3 from the Hospital for Sick Children. Now we have this 4 case ten (10) years later -- 5 MS. TERRI REGIMBAL: Yes. 6 MR. PETER WARDLE: -- where a very 7 similar theory, I suggest to you, is being put forward by 8 Dr. Smith in his evidence at the Preliminary Inquiry? 9 MS. TERRI REGIMBAL: Yes. 10 MR. PETER WARDLE: Doesn't that raise 11 some systemic issues? And whose responsibility is it to 12 ensure that an expert who works for the Crown on a 13 regular basis is allowed to repeat this evidence again 14 and again? 15 You don't think that raises any issues? 16 MS. TERRI REGIMBAL: Well, I'm just 17 trying to be reasonable. See, I'm not -- I read Dr. 18 Whitwell saying that articles came out in the mid-'90s, 19 okay. I would assume that the Crown, who prosecuted the 20 Tyrell case, would have done what I did, which is access 21 all the available literature they could and read it over 22 to try and gain at least some partial understanding of 23 the medical evidence they're grasping at. 24 I would assume the Crown would be aware of 25 that when they went into this. I don't -- I didn't -- I
671 don't know if they raised a ear. This is one (1) portion 2 of the examination -- cross-examination. 3 I don't know if the Crown raised those 4 recent articles; whether there was some reason Dr. 5 Charles Smith said they didn't apply. I don't know that, 6 and so I think it's a little difficult to point to these 7 two (2) con -- areas of testimony ten (10) years apart 8 and to ask me if it makes a systemic problem. 9 I don't know what happened in the 10 intervening ten (10) years. On the basis of my case, I 11 did not believe that I had any obligation to do anything 12 beyond ensure that Dr. Smith's employer was aware of 13 Judge Dunn's comments, and to assume and trust that Dr. 14 Smith would pull up his socks and perhaps to follow his 15 own pediatric autopsy guidelines the next time he 16 performed a pediatric autopsy, so, no, I'm afraid I don't 17 see a systemic issue. 18 Had there been repeated problems, then 19 what's the Coroner's Office's role in this? Are they not 20 his supervisor's pathologist? Are they not ones -- I 21 mean I'm not sure, okay, but it would seem to me that 22 they would be the ones watching what's going on in the 23 cases that their pathologists are testifying in. 24 MR. PETER WARDLE: And I'm smiling simply 25 because we've been asking those very questions at this
681 Inquiry, so I'm -- I'm not smiling to indicate 2 disagreement with you in the slightest. 3 And I asked it as a systemic issue because 4 I wasn't trying to focus on you, Ms. Regimbal. I was 5 trying to ask a broader question about the responsibility 6 of -- of the Crown, in general. 7 Let me move on, though, if I may, and I 8 have a few questions for you, Mr. Gilkinson, and to some 9 extent, these are going to go over ground that was 10 covered by Mr. Sandler yesterday. 11 You were asked some questions by Mr. 12 Sandler about the interaction between the Crown's Office 13 and the CAS, do you recall that? 14 MR. BRIAN GILKINSON: Yes, I do. 15 MR. PETER WARDLE: And to take us back to 16 the time line, after you became involved in the case, you 17 told us that Mr. Hauraney approached you, correct? 18 MR. BRIAN GILKINSON: That is correct. 19 MR. PETER WARDLE: And told you some 20 information about the defence experts that he had 21 obtained, correct? 22 MR. BRIAN GILKINSON: Mm-hm. 23 MR. PETER WARDLE: And -- 24 MR. BRIAN GILKINSON: Yes. Yes. 25 MR. PETER WARDLE: And I think you said
691 that, you know, you told him to pick his best expert and 2 you would try to set up a meeting, do you recall that? 3 MR. BRIAN GILKINSON: Oh, I don't think I 4 said I'd set up the meeting, but I said pick your best 5 expert and we'd try and get a meeting set up. I think it 6 was Mr. Hauraney that contacted Dr. Ein and -- and 7 confirmed his availability. 8 MR. PETER WARDLE: And then you had the 9 meeting with Dr. Ein on April the 23rd, 1998, correct? 10 MR. BRIAN GILKINSON: Correct. 11 MR. PETER WARDLE: Okay. And that's the 12 meeting where Dr. Ein said he was 99 percent certain that 13 -- that the fatal injuries occurred after 5:00 p.m., 14 correct? 15 MR. BRIAN GILKINSON: Yes. 16 MR. PETER WARDLE: And Smith -- Dr. Smith 17 was in complete agreement with Dr. Ein on the timing of 18 those fatal injuries, correct? 19 MR. BRIAN GILKINSON: He was. 20 MR. PETER WARDLE: Okay. And then, as I 21 understand it, you decided to seek an opinion from the 22 Office of the Chief Coroner and that was Dr. Porter, 23 correct? 24 MR. BRIAN GILKINSON: I approached Dr. 25 Porter to give the Office of the Chief Coroner the
701 opportunity to review the present state of the -- of the 2 medical opinion and to respond to it. 3 MR. PETER WARDLE: And there was a 4 meeting with Dr. Porter on May the 10th, do you recall 5 that? 6 MR. BRIAN GILKINSON: Yes. 7 MR. PETER WARDLE: And then her opinion 8 was delivered on May the 26th. 9 MR. BRIAN GILKINSON: Correct. 10 MR. PETER WARDLE: And the charge was 11 withdrawn on June the 15th. 12 MR. BRIAN GILKINSON: Correct. 13 MR. PETER WARDLE: Okay. Now, am I right 14 that what Dr. Smith had to say at the April 23rd meeting 15 put the Crown's case in some jeopardy, is that fair? 16 MR. BRIAN GILKINSON: The Crown's case 17 against Ms. Waudby -- 18 MR. PETER WARDLE: Correct. 19 MR. BRIAN GILKINSON: -- was if, in fact, 20 what came out of that meeting was Dr. Ein being entirely 21 correct in -- in indicating that those injuries occurred 22 after 5:00 p.m., it was untenable. The Crown's case 23 would be untenable. 24 MR. PETER WARDLE: All right. And I 25 focussed on Dr. Smith because he had been the Crown's
711 witness on cause of death, timing of injuries, at the 2 Prelim, and he was now a -- he was now changing his 3 opinion. 4 Without wishing to go back to the 5 questions Ms. Baron asked you, he was now agreeing with 6 Dr. Ein, correct? 7 MR. BRIAN GILKINSON: Yes, and, you know, 8 sometimes I'm not too quick on the uptake, and with 9 respect to Ms. Baron's questioning in terms of whether or 10 not Dr. Smith admitted he was wrong or admitted that just 11 the microscopy was something he would -- I forget what 12 her last question. 13 But the point of the matter is what was 14 significant for me in terms of the interplay between Dr. 15 Ein and Dr. Smith was the fact that they disagreed on the 16 age of the liver injury. And Dr. Ein gave Dr. Smith an 17 explanation for why that injury could have been 18 consistent with all of the others, and he agreed with 19 that. But I'm still confused, in fairness to Dr. Smith, 20 because I don't know that's the subsequent position taken 21 by Dr. Pollanen. 22 So I'm just saying it's very difficult and 23 -- and confusing to really hear a scientific opinion or a 24 medical opinion and -- and say, I can take that to the 25 bank. And to a certain extent, I've wanted to go back to
721 the Office of the Chief Coroner and give them the 2 opportunity to consult other experts and -- and assist us 3 further before the charge was withdrawn. 4 MR. PETER WARDLE: Is it fair to say that 5 after the meeting with Dr. Ein, in the absence of any new 6 information, the Crown no longer had a reasonable 7 prospect of conviction? 8 MR. BRIAN GILKINSON: Correct. 9 MR. PETER WARDLE: Okay. And you had 10 some discussion with My Friend yesterday about the Crown 11 brief and how that might get disclosed to the CAS, and I 12 took it what you said was that parts of the Crown brief, 13 but not all of it, could be disclosed. 14 MR. BRIAN GILKINSON: Anything that I 15 would think would bear on the issue of children in need 16 of protection, those kinds of things -- certainly the 17 Children's Aids Society has a legitimate interest in, and 18 -- and there's a public interest in making sure that kind 19 of information gets disseminated. 20 MR. PETER WARDLE: All right. And -- and 21 some things you wouldn't want to share; for example, 22 details of undercover operations that were still ongoing, 23 correct? 24 MR. BRIAN GILKINSON: Anything that would 25 jeopardize the further investigation that was going on,
731 because while Ms. Waudby was no longer a suspect that 2 doesn't mean that weren't suspects to be further 3 investigated. And when I say Ms. Waudby was no longer a 4 suspect, that may be inaccurate in terms of how much 5 confidence you have in the medical opinion that -- that 6 we're getting. 7 We certainly had a preponderance of 8 medical opinion that suggested timing was not on her 9 watch. But there were other expressions in that opinion 10 that gave you cause to wonder whether or not Dr. Smith 11 was the only expert that may have overstated some of his 12 -- some of his opinions. 13 There were other aspects of some of the 14 opinions that Mr. Hauraney had that I would have 15 considered as a layperson to be somewhat suspect. 16 MR. PETER WARDLE: Now, My Friend, Mr. 17 Sandler, took you to some handwritten notes from a CAS 18 worker, and it's in your volume at Tab 12, and this is 19 PFP300013. 20 MR. BRIAN GILKINSON: I'm -- I'm sorry -- 21 just for a moment. 22 MR. PETER WARDLE: I'm sorry, it may not 23 have been in your binder. It -- it may simply have been 24 up on the screen. It's -- if you look on the screen, 25 Mr. --
741 MR. BRIAN GILKINSON: Okay. I can deal 2 with it. I know I've got it somewhere. 3 MR. PETER WARDLE: Okay. It's actually 4 staring at you, at both of us. 5 MR. BRIAN GILKINSON: Okay. I'll look at 6 that. 7 MR. PETER WARDLE: So My Friend asked you 8 about a note on -- on April the 28th. So this would be 9 after the meeting with Dr. Ein. 10 "Met with Crown attorney, Brian 11 Gilkinson, to request he provide CAS 12 and Crown brief for purposes of..." 13 And I'm not sure I can read the next word. 14 MR. BRIAN GILKINSON: I assume that 15 that's child welfare court -- 16 MR. PETER WARDLE: Yeah. 17 MR. BRIAN GILKINSON: -- but I'm not 18 certain. 19 MR. PETER WARDLE: And then: 20 "Brian G. states he unable to provide 21 CAS with Crown brief as he in middle of 22 preliminary. Brian G. states he will 23 not be dropping charge on Thursday; 24 that Mom is definitely a child abuser, 25 but whether she is a child killer needs
751 to be determined." 2 Now, I want to just take you, if I can, to 3 a document. It should be in your binder at Tab... 4 5 (BRIEF PAUSE) 6 7 MR. PETER WARDLE: Okay. There should be 8 a joint volume for all three (3) of you, Volume I. 9 MR. BRIAN GILKINSON: I have that. 10 MR. PETER WARDLE: And it's Tab 29. 11 MR. BRIAN GILKINSON: That starts Exhibit 12 F? 13 MR. PETER WARDLE: Correct. 14 MR. BRIAN GILKINSON: Yes. 15 MR. PETER WARDLE: And if you -- and this 16 is PFP -- PFP303267. And you'll see if you read this, 17 Mr. Gilkinson, that this is reasons of a Madam Justice 18 Johnston released on May 27th, but it actually relates to 19 a matter that was heard on May the 7th relating to the 20 newborn child of Brenda Waudby. 21 Do you see that? 22 MR. BRIAN GILKINSON: Yes. 23 MR. PETER WARDLE: Okay. And -- and just 24 going through it -- and you can peruse it, but I'm going 25 to take you to, first of all, page 4 of the decision.
761 This would be the fifth page in from the front. The next 2 page, Mr. Registrar. 3 You'll see it says, in the middle of the 4 page... 5 6 (BRIEF PAUSE) 7 8 MR. PETER WARDLE: So because of some 9 ongoing issues involving the individual in question, 10 we're going to -- we're not going to put this document 11 up on the screen, if that's agreeable. 12 But, Mr. Commissioner, you have it in your 13 binder? 14 COMMISSIONER STEPHEN GOUDGE: I have it, 15 yes. 16 17 CONTINUED BY MR. PETER WARDLE: 18 MR. PETER WARDLE: Okay. So first of 19 all, a brief summary of the evidence is that 20 "The mother of the child is presently 21 awaiting pre-trial and trial in the 22 Superior Court of Justice on a charge 23 of murder that -- murder with respect 24 to another child, Jenna. The mother 25 has had a preliminary hearing and on
771 the basis of the evidence educed at 2 that hearing, has been committed for 3 trial. 4 The test at a preliminary hearing is 5 not the test that would be required to 6 convict a person of such an offense, 7 but it is a test that says there is 8 sufficient evidence of the allegations 9 by the Crown to warrant placing the 10 person on trial." 11 And then going over a couple of pages, to 12 page 6, you'll see -- and I'm going to read all of this 13 before I ask you a question: 14 "It is very clear that the mother's 15 criminal court matter is not going to 16 be resolved on a pre-trial date on the 17 charge of murder. Although, perhaps I 18 should not be quite so firm as that it 19 is so highly unlikely that it would be 20 resolved, that it would be imprudent of 21 this court to rest its decision solely 22 on the unlikely expectation that it 23 would be resolved." 24 And then over one (1) more page, you'll 25 see in the middle of the page that Mr. Meneley appears to
781 be making an argument about the strength of the Crown's 2 case in the criminal charge. 3 And then finally on page 8, you'll see in 4 the middle of the page: 5 "In my view there are reasonable and 6 probable grounds to believe that there 7 is a substantial risk to the child's 8 health or safety. The mere fact that 9 the mother is outstanding on a charge 10 of murther -- murder of another child 11 under her care, in my view, is 12 reasonable and probable grounds to 13 believe that there is a substantial 14 risk to the child's health and safety. 15 The fact that the mother has been 16 committed for trial following a 17 preliminary hearing, in my view, only 18 makes that case stronger." 19 So the point I was making, or I want to 20 make, Mr. Gilkinson, is this relates to a proceeding 21 which took place on May the 7th. You'd had the meeting 22 with Dr. Ein and Dr. Smith on April the 23rd. We've seen 23 the -- the notes from the worker indicating she was 24 trying to get information from you in late April. 25 And wouldn't it have been useful or
791 perhaps ideal if the Judge who heard this matter relating 2 to the young child had disclosure of the information you 3 learned at the meeting with Dr. Ein? 4 MR. BRIAN GILKINSON: Well, it appears 5 that Mr. Meneley had been in contact with Mr. Hauraney if 6 -- if I can infer that from the submissions he was making 7 with Madam Justice Johnston on -- on this particular 8 issue. And it appears that he was alive to the 9 circumstances of whether or not there was -- there were 10 difficulties with the Crown's case. 11 I think -- I don't recall the meeting with 12 Ms. Sullivan -- or the case worker by the name of 13 Sullivan, but I certainly am content to stand by the fact 14 that there was a meeting someplace, and that I indicated 15 I wasn't going to withdraw the charge on Thursday if -- 16 and that I also told her, apparently, that it was not my 17 belief that Ms. Waudby was a child killer; she could well 18 be a child abuser. 19 Now all of that CAS had from me. It 20 looked like Mr. Meneley had a lot of information from Mr. 21 Hauraney and that there was communication there. And I'm 22 sorry, I'm not going to comment on the -- on the words 23 used by Justice Johnston on page 8, that was -- 24 MR. PETER WARDLE: But to be fair, Mr. 25 Gilkinson, the CAS obviously didn't have anything from
801 you indicating that the Crown's case had shifted as a 2 result of that meeting. 3 MR. BRIAN GILKINSON: I don't know what -- 4 MR. PETER WARDLE: And whether they could 5 have got it from Mr. Hauraney and Mr. Meneley is not 6 really my point. My point is really whether that 7 information, in a perfect world, should be shared as soon 8 as it happens? 9 MR. BRIAN GILKINSON: I don't know what 10 they had as of May the 7th, and I don't know if that was 11 a sum total of the discussion I had with the case worker. 12 I can tell you I didn't make notes of it. 13 I don't have an independent recollection. I don't know 14 what else I told her. 15 But clearly, if I gave her a bottom line 16 that I did not believe Ms. Waudby was a child killer but 17 a child abuser, I'm sure there must have been more that 18 passed between her and myself than that. 19 MR. PETER WARDLE: Can -- in fact, if I 20 go back to that note it simply says -- 21 MR. BRIAN GILKINSON: I'm sorry, what was 22 the tab again? 23 MR. PETER WARDLE: That note was on the 24 screen. 25 MR. MARK SANDLER: It's also Tab 18 of
811 your original binder, Mr. Gilkinson. 2 MR. BRIAN GILKINSON: I'm working with 3 the right one now, thank you, Mr. Sandler. 4 5 CONTINUED BY MR. PETER WARDLE: 6 MR. PETER WARDLE: What it actually says, 7 Mr. Gilkinson, to be fair, is it says: 8 "That mom is definitely a child abuser 9 but whether she is a child killer needs 10 to be determined." 11 A little differently than the way you just 12 put it to me, but -- 13 MR. BRIAN GILKINSON: Okay. As I said, I 14 hadn't seen that before yesterday, and I didn't review it 15 before you showed it to me. 16 In terms of whether or not she was a child 17 killer, and that has to be determined, again we had the 18 evidence coming out of Dr. Ein's office, with a position 19 apparently shared between Dr. Ein and Dr. Smith at that 20 point in time. 21 I still wanted to give the Office of the 22 Chief Coroner an opportunity to consult with any other 23 experts -- on the issue of timing -- they wished to and 24 give me what I would then treat as -- as definitive with 25 respect to the Crown's case.
821 MR. PETER WARDLE: Now, one (1) more area 2 for you, Mr. Gilkinson, if I may. 3 Just before the withdrawal of the criminal 4 charge, there was a plea by Ms. Waudby on a charge under 5 the Child and Family Services Act, correct? 6 MR. BRIAN GILKINSON: That is correct. 7 MR. PETER WARDLE: And that's in 8 paragraphs -- if we go to the overview -- 9 MR. BRIAN GILKINSON: Yes. 10 MR. PETER WARDLE: -- I have it as 11 paragraphs 98 and 99. 12 MR. BRIAN GILKINSON: Mine -- 13 MR. PETER WARDLE: I'm sorry, I'm -- I 14 apologize, it's -- 15 COMMISSIONER STEPHEN GOUDGE: I think it 16 is paragraph 100. 17 18 CONTINUED BY MR. PETER WARDLE: 19 MR. PETER WARDLE: -- paragraph 100. 20 Now, you and Mr. Hauraney, as I 21 understand, negotiated this plea in the context of the 22 Crown being in the process of considering dropping the 23 criminal charge, correct? 24 MR. BRIAN GILKINSON: I had already 25 indicated to Mr. Hauraney it was my intention to withdraw
831 the criminal charge, and I made that clear on the record 2 during the course of this plea. 3 MR. PETER WARDLE: All right. And you'll 4 see that if you look at the facts that were read in on 5 the plea, it refers to: 6 "Post-mortem examination revealed old 7 rib head injuries that would have 8 occurred during the timeframe set out 9 in this particular information." 10 Do you see that? 11 MR. BRIAN GILKINSON: Yes. 12 MR. PETER WARDLE: And that's information 13 that had come to you and to Mr. Hauraney through Dr. 14 Smith, correct? 15 MR. BRIAN GILKINSON: That -- that is 16 correct. 17 MR. PETER WARDLE: Okay. And so although 18 you, in particular, were no longer relying on Dr. Smith 19 relating to the timing of the fatal injuries, you were 20 still reliant on him for this information which was the 21 basis for this plea. Correct? 22 MR. BRIAN GILKINSON: There appeared to 23 be a consensus between him and Dr. Ein that those were 24 old injuries that predated the fatal ones. 25 MR. PETER WARDLE: And to be fair, Dr.
841 Hauraney -- sorry, Mr. Hauraney was obviously operating 2 under that assumption as well, correct? 3 MR. BRIAN GILKINSON: I assume so. We 4 had no difficulty in coming to common ground with respect 5 to these facts. 6 MR. PETER WARDLE: If we go forward -- 7 and you've already referred to Dr. Pollanen's report. I 8 think you referred to it in your evidence. 9 Are you familiar with the fact that Dr. 10 Pollanen has done a report in this case? 11 MR. BRIAN GILKINSON: Yes. 12 MR. PETER WARDLE: Okay. 13 MR. BRIAN GILKINSON: Yes. 14 MR. PETER WARDLE: And I'm going to take 15 you, in the overview report, to paragraph 172... 16 17 (BRIEF PAUSE) 18 19 MR. PETER WARDLE: And you'll see a 20 reference to that report. And I'm just going to ask that 21 it be pulled up on the screen for a moment. The report 22 is PFP072613. 23 24 (BRIEF PAUSE) 25
851 MR. PETER WARDLE: And do you recall, by 2 the way, that the rib fractures in this case, there were 3 a number of fractured rib -- ribs, quite a large number, 4 do you recall that? 5 MR. BRIAN GILKINSON: I wouldn't be able 6 to tell you the number. 7 MR. PETER WARDLE: Okay. 8 MR. BRIAN GILKINSON: I -- I simply 9 remember the rib head fractures being discussed. 10 MR. PETER WARDLE: So just looking at the 11 screen, because this is not in your binders, and if you 12 go to page 8 of the written document. 13 14 (BRIEF PAUSE) 15 16 MR. PETER WARDLE: And first of all, 17 looking at Items 2 and 3, you'll see it says: 18 "Blunt impact facial and head trauma 19 peri-mortem." 20 And peri-mortem is, I think we've already 21 established, is in the hours before death. 22 MR. BRIAN GILKINSON: Mm-hm. 23 MR. PETER WARDLE: And it refers in E, F, 24 and G to subscal -- scalpular hemorrhage diffused marked, 25 right subdural hemorrhage diffuse, subarachnoid
861 hemorrhage minimal, and then Item 3, blunt 2 impact/compressional chest trauma, peri-mortem, and then 3 B, rib fractures multiple, do you see that? 4 MR. BRIAN GILKINSON: I do. 5 MR. PETER WARDLE: And over to the next 6 page under Dr. Pollanen's opinion and discussion, you'll 7 see in the second paragraph he says: 8 "The lethal injuries are peri-mortem, 9 ie; inflicted within hours of death." 10 The third sentence: 11 "In reaching the latter conclusions, I 12 have examined the macroscopic and 13 microscopic characteristics of the 14 injuries involving key injured sites. 15 The following reasons support my 16 conclusion." 17 And then you'll see he says: 18 "1. The hemorrhage is recent. The 19 lethal injuries, pancreatic-duodenal 20 transection and mesenteric laceration 21 and many of the other forensically 22 significant injuries, including the 23 subdural hemorrhage, bruising at 24 various sites, seromuscular bowel 25 injury, adrenal injury and rib
871 fractures are characterised by acute 2 hemorrhage without evidence of 3 histologic organization or other 4 evidence of a healing reaction." 5 And just stopping there. That would tend 6 to suggest that in Dr. Pollanen's opinion as of 2004, the 7 head injuries and rib fractures that you and Mr. Hauraney 8 negotiated this plea over several years earlier may, in 9 fact, also have been incurred within hours of death, and 10 if that was the case, then there was no basis for that 11 plea. 12 MR. BRIAN GILKINSON: I agree that that's 13 the import of what his opinion is. That wasn't the 14 opinion we had or we relied on at the time the plea was 15 entered. And I can remember being struck by that in a -- 16 in a case conference that Dr. Pollanen was present at in 17 Toronto. 18 During the course of that meeting, he also 19 indicated that he thought the liver injury, or at least 20 some aspects of it, did have a healing reaction that 21 extended the time. 22 So I'm sitting here wondering whether or 23 not we took a plea -- well, we took a plea on the basis 24 of rib head fractures that were considered old at the 25 time. Dr. Pollanen also indicated there was some aspects
881 of the liver, if I recall his position, that were older 2 and -- and may well have occurred during the time Ms. 3 Waudby had her under care. 4 So quite frankly, again, you wonder what 5 you can make of -- of some of this. You just do the best 6 you can to make the decisions that appear to be 7 appropriate with the information you have at the time. 8 MR. PETER WARDLE: No, and I'm not being 9 critical of you -- 10 MR. BRIAN GILKINSON: I know. 11 MR. PETER WARDLE: -- in this -- in the - 12 - in least, sir. And -- and we've also heard evidence 13 here about the liver injury from Dr. Milroy, who -- who 14 said in his evidence that it could have been anywhere 15 from a few hours to a day or more; he simply couldn't 16 say, so there you have it. 17 MR. BRIAN GILKINSON: I think you 18 understand why I wanted to make sure that any confession 19 we eventually got was independently verifiable. It's -- 20 it's very hard to mount a prosecution just dealing with 21 expert opinion alone. 22 MR. PETER WARDLE: Mr. Bradley, I'd love 23 to spend a lot of time with you talking about the Sharon 24 case, but I can't, so I have only three (3) questions for 25 you.
891 2 (BRIEF PAUSE) 3 4 MR. PETER WARDLE: When you had the 5 critical conversation with Dr. Smith -- and I'm just 6 going to turn it up here in the materials. This is in 7 your volume at Tab 10. 8 MR. EDWARD BRADLEY: Thank you. Yes, I 9 have them. 10 MR. PETER WARDLE: This is PFP136208. 11 You were very careful, sir, to document 12 this discussion, correct? 13 MR. EDWARD BRADLEY: As best I could, 14 yes. 15 MR. PETER WARDLE: And that would be 16 particularly important, given the decision you were 17 contemplating, and the shifting evidence relating to 18 causation, correct? 19 MR. EDWARD BRADLEY: Yes. 20 MR. PETER WARDLE: And in that 21 conversation, or at any other time, did Dr. Charles Smith 22 every say to you that he didn't have experience with 23 penetrating wounds? 24 MR. EDWARD BRADLEY: I don't recall him 25 stating that to me, no.
901 MR. PETER WARDLE: Did Dr. Smith ever say 2 to you that he was not an expert on dog bites? 3 MR. EDWARD BRADLEY: I do recall him 4 saying to me on a couple of occasions that he placed 5 significant reliance on Dr. Wood, because he was the 6 forensic odontologist, and he was the person that was in 7 -- in Dr. Smith's view, more familiar with dog bites. I 8 -- I think that's an accurate recollection. 9 MR. PETER WARDLE: And you'd, I assume by 10 this point, read Dr. Smith's evidence at the preliminary 11 inquiry? 12 MR. EDWARD BRADLEY: Yeah, at some point 13 obviously I'd read it, yes. 14 MR. PETER WARDLE: Okay. Did it come as 15 a surprise to you that Dr. Smith was saying that he 16 relied to come extent on Dr. Wood? 17 MR. EDWARD BRADLEY: Yes. 18 MR. PETER WARDLE: Those are all my 19 questions for you, sir. Thank you very much. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 21 Wardle. 22 Ms. Craig...? 23 24 MS. ALISON CRAIG: Good morning, 25 Commissioner. Good morning everyone.
911 COMMISSIONER STEPHEN GOUDGE: Good 2 morning. 3 MR. EDWARD BRADLEY: Good morning. 4 5 CROSS-EXAMINATION BY MS. ALISON CRAIG: 6 MS. ALISON CRAIG: My name is Alison 7 Craig, and I'm one (1) of the lawyers that represents 8 nine (9) individuals who were convicted of crimes in 9 cases in which Dr. Smith was involved in one way or the 10 other. 11 And I'm really just going to focus on two 12 (2) systemic issues today. None of you were involved in 13 any of the cases that I act for. 14 The first area I want to cover -- and Mr. 15 Wardle started to touch on this -- is the duty of the 16 legal profession, and in this case, Crown attorneys, to 17 report to some governing body concerns that they have 18 about experts. And we have heard throughout this Inquiry 19 evidence about Dr. Smith providing opinions in areas 20 outside of his area a expertise. 21 And, Mr. Bradley, I'll start with you. 22 You obviously developed concerns about the opinions Dr. 23 Smith provided in the Sharon Case? 24 MR. EDWARD BRADLEY: Correct. 25 MS. ALISON CRAIG: And in fact, you
921 consulted, I believe, with other Crown attorneys and 2 discovered they also had concerns? 3 MR. EDWARD BRADLEY: Correct. 4 MS. ALISON CRAIG: And you would agree, 5 you also felt it was appropriate -- or you felt that Dr. 6 Smith was acting at times more as an advocate then as an 7 -- an objective expert. 8 Is that fair? 9 MR. EDWARD BRADLEY: I think I did make a 10 comment when I was asked some questions for the 11 preparation of my overview, especially in the context of 12 my meeting with Dr. Ferris. And I said that certainly I 13 thought that Dr. Ferris, as with a lot of experts, was 14 quite passionate in his opinions and did present himself 15 as an advocate. 16 So that's the context in which I -- I made 17 that comment. 18 MS. ALISON CRAIG: And you would agree, 19 generally, it's -- it's a concern when experts are 20 providing opinions outside of their area of expertise? 21 MR. EDWARD BRADLEY: Well, I guess I'd 22 have to -- to assess the individual situation. If 23 somebody is providing expert -- expert evidence outside 24 of their area of expertise, then I'm not sure that I'd 25 really place a lot of reliance on that aspect of their --
931 of their opinion. 2 MS. ALISON CRAIG: If it was happening -- 3 if they were providing this evidence in court a jury may, 4 for example, place a lot of reliance on it, which is part 5 of the concern, would you agree? 6 MR. EDWARD BRADLEY: I -- I'd have to 7 assess it on the individual facts, and from what you've 8 told me I -- I'm not sure that I can really give -- give 9 a -- a full answer to that comment. 10 MS. ALISON CRAIG: That's fair enough, 11 but with -- with your concerns with Dr. Smith you never 12 reported them to the Coroner's Office or any other body? 13 MR. EDWARD BRADLEY: The Coroner's Office 14 was aware of it, because Dr. Chiasson, Dr. Cairns -- I 15 had a conversation with the Chief Coroner, Dr. Young, 16 so... 17 Dr. Cairns was the Deputy Chief Coroner at 18 the time. Dr. Chiasson was the Chief Forensic 19 Pathologist and Dr. Young was the Chief Coroner. So they 20 key people in the Coroner's Office were all familiar with 21 some concerns about Dr. Smith. 22 MS. ALISON CRAIG: Would you -- 23 generally, do you feel it's your duty to report concerns 24 that you have about experts? 25 MR. EDWARD BRADLEY: Once again, I can
941 only deal with the cases that I've been involved in, and 2 I've only had Dr. Smith on two (2) cases and that was the 3 Lawrence case and -- two (2) criminal cases, to the best 4 of my knowledge -- and that was the Lawrence and that was 5 the Reynold's case. So I can only comment on those. 6 MS. ALISON CRAIG: Okay. And Ms. 7 Regimbal, in the Amber case, Dr. Smith provided certain 8 opinions, social work, commentary, things like that 9 during his evidence, correct? 10 MS. TERRI REGIMBAL: Yes. 11 MS. ALISON CRAIG: And it wasn't 12 questioned by anybody at the time? 13 MS. TERRI REGIMBAL: No, it wasn't. And 14 I do think it's important that rightly or wrongly he was 15 permitted by the judge and by the defence to be qualified 16 as an expert in Shaken Baby Syndrome, which is a little 17 bit different from pediatric pathology. 18 MS. ALISON CRAIG: Absolutely. But he 19 was also providing commentary on social issues, not just 20 on the medical issues that were at hand at the trial. He 21 was -- 22 MS. TERRI REGIMBAL: Are you referring to 23 the time that he sort of went through a hypothetical 24 scenario for Shaken Baby? 25 MS. ALISON CRAIG: That's a good example,
951 yes. 2 MS. TERRI REGIMBAL: Because I would have 3 thought that was in response to His Honour's questioning 4 about -- to give him an -- sort of an example, an 5 overview of what it might look like. 6 I mean, it's very inappropriate. It would 7 be something that wouldn't have ever, I would hope, be 8 allowed in front of a jury. But one would hope that 9 Justice Dunn is -- sort of opening that door, you know, 10 would have given the zero weight it should really have 11 had in the process, and obviously he did. 12 MS. ALISON CRAIG: And we heard -- you 13 provided a copy of a judgment to the hospital, but not 14 the to the Coroner's Officer? 15 MS. TERRI REGIMBAL: No, that's correct. 16 MS. ALISON CRAIG: And, Mr. Gilkinson, in 17 the Jenna case -- I -- we -- I won't go through all this 18 again, but he provided some opinions, then later 19 retracted them. 20 Is that a fair generalization? 21 MR. BRIAN GILKINSON: Well, I -- I've 22 been corrected this morning that he apparently was within 23 a few hours of -- of pronouncing initially with Constable 24 Kirkland a post-mortem. In the first -- in the first 25 case conference, it's my understanding that that expanded
961 and then his evidence at the preliminary indicated, 2 depending on the nature of the injury, his microscopic 3 examination produced a host of other -- other estimates 4 of time. That did change by April the 23rd in Dr. Ein's 5 office. 6 MS. ALISON CRAIG: And I understand that 7 you did in fact report some concerns you had about Dr. 8 Smith to the Coroner's Office. 9 Do I have that correct? 10 MR. BRIAN GILKINSON: That is correct. 11 MS. ALISON CRAIG: And so I take it from 12 your actions, you agree -- you would agree that there is 13 a responsibility, to some extent, on Crown attorneys to 14 report concerns that they have about experts to a 15 governing body of some sort? 16 MR. BRIAN GILKINSON: There is and that's 17 covered by Crown policy. 18 MS. ALISON CRAIG: Okay. And there was 19 some discussion about this: Ms. Regimbal, I think you 20 mentioned the recommendations from the Moran Inquiry 21 regarding -- on the Centre of Forensic Sciences and the 22 reporting duties there. 23 MS. TERRI REGIMBAL: Yes. 24 MS. ALISON CRAIG: And if we can actually 25 pull that up. It's PFP303276. I think it's Tab 32 of
971 your -- of Volume I. 2 MS. TERRI REGIMBAL: From the Moran 3 Inquiry or the police, which one are you trying -- 4 MS. ALISON CRAIG: The Moran Inquiry. 5 MS. TERRI REGIMBAL: Yes. 6 MS. ALISON CRAIG: Tab 32. 7 MR. EDWARD BRADLEY: I'm sorry, Ms. 8 Craig -- 9 MS. ALISON CRAIG: I guess that's the 10 wrong PFP number I've got. 11 MS. TERRI REGIMBAL: PFP303276/1? 12 MS. ALISON CRAIG: Yes, that's what I 13 have as well. 14 MR. EDWARD BRADLEY: What tab is it? 15 MS. TERRI REGIMBAL: It's at Tab 32. I 16 have it open in front of me. 17 MS. ALISON CRAIG: Okay. Well I can -- 18 COMMISSIONER STEPHEN GOUDGE: You've got 19 it open in front of me and -- 20 MS. ALISON CRAIG: -- it's not what I see 21 on -- 22 COMMISSIONER STEPHEN GOUDGE: -- it's the 23 same PFP number. 24 MS. ALISON CRAIG: Yes, exactly. Well, 25 it's not what I see on the screen, but if you have it in
981 front of you, I can just -- 2 MS. TERRI REGIMBAL: I do, Ms. Craig. 3 MS. ALISON CRAIG: -- read it? 4 MS. TERRI REGIMBAL: Yes, thank you. 5 6 CONTINUED BY MS. ALISON CRAIG: 7 MS. ALISON CRAIG: And this is 8 Recommendation 21 that I'm looking at, Protocols 9 Respecting Complaints to the Centre of Forensic Science. 10 And under A, it says: 11 "In consultation with the Advisory 12 Board, the Centre --" 13 There we go. And it's Recommendation 21, 14 which I think is page 7. 15 16 (BRIEF PAUSE) 17 18 MS. ALISON CRAIG: Thank you, Registrar. 19 So at A) it says: 20 "In consultation with the Advisory 21 Board, the Centre should establish, 22 through written protocols, a mechanism 23 to respond to, investigate and act upon 24 complaints or concerns expressed by the 25 judiciary Crown and defence counsel or
991 police officers. The protocol should 2 identify the person to whom a complaint 3 -- complaint or concern should be 4 directed, how it should be investigated 5 and by whom, and to whom the results 6 should be reported and what actions are 7 available to the Centre at the 8 conclusion of the process." 9 And then moving down to C), it says: 10 "The Crown police manual should be 11 amended to provide that Crown counsel 12 should draw to the Centre's attention 13 such concerns together with such 14 particulars that will enable the matter 15 to be investigated by the Centre. The 16 policy should be encouraged through 17 correspondence directed to the Ontario 18 Crown Attorney's Association." 19 Now I know I -- I reviewed those 20 recommendations in initiatives from the Criminal Law 21 Division, and my understanding of that was that there's a 22 suggestion of a duty to report it to the Head Crown, 23 somebody in the Crown's office, do I have that 24 understanding correct? 25 MS. TERRI REGIMBAL: Well, I -- I have --
1001 would have to read over the actual entire policy to be 2 sure. If you had like a paragraph that you could direct 3 me to, I'd be happy to look it up. I -- 4 MS. ALISON CRAIG: Well -- 5 MS. TERRI REGIMBAL: -- I don't know it 6 off by heart. 7 MS. ALISON CRAIG: Okay. Well, my 8 question is, would you agree that a similar 9 recommendation to this would be helpful in providing 10 Crown attorneys with some guidance as to where to go when 11 they have concerns about experts? 12 MR. BRIAN GILKINSON: Do you want my 13 assistance with respect to that question? 14 MS. ALISON CRAIG: Certainly. 15 MS. TERRI REGIMBAL: Because Mr. 16 Gilkinson, I think was on the Committee that were looking 17 at recommendations, and they touched on that issue. 18 MR. BRIAN GILKINSON: It is part of the 19 Crown policy manual on physical scientific evidence, 20 latest form dated March the 21st, 2005, that any concerns 21 Crown counsel may have relating to a scientist's 22 competence as an expert should be confey -- conveyed in 23 writing to the Director of the scientist's laboratory. 24 That's what I had in mind when I agreed 25 that -- with your question, but used the term "governing
1011 body". We're talking about the employer, or the person 2 under whose egis the person -- the expert conducts 3 himself. Not necessarily the governing body, but we do 4 communicate concerns directly to the lab if it's with 5 respect to CFS or the Office of the Chief Coroner if it's 6 with respect to something else. 7 MS. ALISON CRAIG: Okay. Thank you, Mr. 8 Gilkinson. 9 MR. BRIAN GILKINSON: You're welcome. 10 MS. ALISON CRAIG: Commissioner, this may 11 be an appropriate time for a break. I have a second area 12 to move into. 13 COMMISSIONER STEPHEN GOUDGE: We'll break 14 then until 11:30. 15 16 --- Upon recessing at 11:13 a.m. 17 --- Upon resuming at 11:32 a.m. 18 19 THE REGISTRAR: All rise. Please be 20 seated. 21 COMMISSIONER STEPHEN GOUDGE: Ms. 22 Craig...? 23 MS. ALISON CRAIG: Thank you, 24 Commissioner. 25
1021 CONTINUED BY MS. ALISON CRAIG: 2 MS. ALISON CRAIG: The second area I want 3 to move into in my remaining time is to talk a little bit 4 about plea bargaining and really just get your thoughts 5 on some questions I've got. 6 I'll start with a blunt question. You 7 would all agree that sometimes innocent people plead 8 guilty? Is that a fair blunt statement? 9 MR. BRIAN GILKINSON: If you're asking 10 me, I would say that's not a fair statement. It -- 11 MR. EDWARD BRADLEY: I -- 12 MR. BRIAN GILKINSON: -- may be blunt. 13 MR. EDWARD BRADLEY: I wouldn't agree 14 with that either. 15 MS. ALISON CRAIG: Okay. Well, the first 16 -- I'm going to refer to two (2) passages and get your 17 thoughts on them, if I may. And, Mr. Registrar, the 18 first one (1)-- it's not in the database. It's just a 19 quote I want to read. It's from the University of 20 Chicago Law Professor, Stephen schulhofer, and he says 21 there: 22 "The major problem with plea bargaining 23 is that it forces the party into a 24 situation where they have to take a 25 guess about what the evidence is, how
1031 strong the case may be and they have to 2 make a guess against the background of 3 enormously severe penalties if you 4 guess wrong. 5 So defendants, even if they have strong 6 defences and even if they are innocent, 7 in fact, face enormous pressure to play 8 the odds and accept a plea. And the 9 more likely they are to be innocent and 10 the more strong their defences are, the 11 bigger discount and the bigger benefits 12 the prosecutor will offer them. 13 Eventually at some point, it becomes so 14 tempting that it might be irresistible, 15 especially when the consequences of 16 guessing are wrong and disastrous." 17 Do you agree with the comments that are 18 made in that statement or, at least, the possibility of 19 these scenarios existing? 20 MR. BRIAN GILKINSON: Well, I'm sorry, 21 this is an American law professor talking about American 22 law and the American Judicial System. I have a hard time 23 believing that that may be applicable in this situation. 24 MR. EDWARD BRADLEY: In my jurisdiction, 25 if you're represented by counsel, even if it's a first or
1041 second appearance, we always provide them with a copy of 2 the Crown brief which they can review -- see the strength 3 of the Crown's case -- certainly, at that stage prior to 4 entering their plea. 5 And before they -- their plea is accepted, 6 the judge asks them if they admit all of the facts, if 7 they are doing so freely and voluntarily, and a few other 8 comments, so that it's clear on the record that they 9 fully understand their plea and the consequences of their 10 guilty plea. If they're -- 11 MS. TERRI REGIMBAL: And in my -- 12 MR. EDWARD BRADLEY: I was just going to 13 say, if they're unrepresented, we have a full-time duty 14 counsel who's available to speak to them. 15 MS. TERRI REGIMBAL: And in my district, 16 full disclosure is provided on first appearance -- full 17 disclosure of the Crown's brief -- and the intake court 18 is in front of a Justice of the Peace. 19 If an accused indicates they wish to plead 20 guilty, it's put over so they can consult with duty 21 counsel who will advise them of all of these issues that 22 are raised in that paragraph you just read. 23 And then the Judge goes through the 24 mandatory questioning of the accused person to make sure 25 they are pleading voluntarily; understanding what they
1051 are pleading to; understanding even that the Judge is not 2 bound by a joint submission. So I think there are some 3 pretty good safeguards in place. 4 MS. ALISON CRAIG: And I'm certainly not 5 suggesting that's not the case. But would you agree that 6 the process of plea bargaining, particularly in cases 7 when the stakes are high -- the potential of a long, 8 lengthy imprisonment is there -- it puts the Crown in a 9 real position of power. 10 And I don't mean in a malicious sense, but 11 in the sense they can assess the strength of their case 12 and then present somebody facing life in jail, perhaps, 13 with the guarantee of a much lesser sentence should they 14 agree to plead to a lesser charge. 15 I mean, not -- not maliciously, but that 16 is a powerful position, would you agree? 17 MR. EDWARD BRADLEY: If you're talking 18 about somebody who's facing life imprisonment as a 19 potential sentence -- 20 COMMISSIONER STEPHEN GOUDGE: Sure. 21 MR. EDWARD BRADLEY: Okay. 22 COMMISSIONER STEPHEN GOUDGE: Ms. 23 Twohig...? 24 OBJ MS. KIM TWOHIG: Mr. Commissioner, I'd 25 like to object to this line of questioning, on the basis
1061 that the questions being put to the witnesses are 2 appropriate certainly for submissions, but to ask them to 3 engage in a policy discussion under oath is unfair. 4 COMMISSIONER STEPHEN GOUDGE: Where are 5 you going with this, Ms. Craig? 6 MS. ALISON CRAIG: Well -- 7 COMMISSIONER STEPHEN GOUDGE: I mean -- 8 MS. ALISON CRAIG: I'm just trying to -- 9 my only question is I'm not -- I'm not referring to any 10 particular case, but does the possibility exist that 11 people are placed in a position where they -- and I was 12 going to get into some more specific questions -- but 13 people are placed in a position where they are facing 14 damaging evidence and are, in a sense, of emotional 15 trauma and an emotional state, and I was just going to 16 get into some questions about whether that possibility 17 exists or not; certainly not whether the witnesses have 18 ever been involved in that situation. 19 I'm certainly not suggesting that the 20 witnesses have ever -- 21 COMMISSIONER STEPHEN GOUDGE: Mr. 22 Sandler...? 23 MR. MARK SANDLER: Commissioner, while I 24 -- I don't agree respectfully with Ms. Twohig's position 25 that because they're policy driven questions that -- that
1071 the witnesses ought not to be asked them because I think 2 our whole underlying rationale permits of policy driven 3 questions to -- to be asked of the various witnesses who 4 can provide expertise. 5 I'm not convinced that these are the 6 witnesses that can assist you on this particular issue. 7 We're going to be hearing from members of the Defence 8 Bar, and I know that one (1) of the areas that I will be 9 exploring with them on February the 8th includes the 10 pressures of defending serious homicide cases and how 11 that impacts upon the way they approach the task and 12 their interplay with the -- with the defendants. 13 That's probably where you're going to get 14 more useful information on this score in my view. 15 COMMISSIONER STEPHEN GOUDGE: Anything 16 you want to say? 17 MS. ALISON CRAIG: I would just like to 18 get a general sense from -- I mean there's two (2) sides 19 to the plea bargaining process -- the defence and the 20 Crown, and I am just trying to get a sense if the Crown 21 attorneys realize the position of a defendant when 22 they're in this plea bargaining process. It's a two (2) 23 sided process. 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25 Haven't you got that?
1081 MS. ALISON CRAIG: Well, I think I have 2 now, yes. 3 COMMISSIONER STEPHEN GOUDGE: Yes, I mean 4 I think they've given you what help they can. 5 6 CONTINUED BY MS. ALISON CRAIG: 7 MS. ALISON CRAIG: And I agree, 8 Commissioner. And if I... 9 10 (BRIEF PAUSE) 11 12 MS. ALISON CRAIG: If I could just ask 13 two (2) more questions, but I don't think they're policy 14 driven. I think they're based on the experiences of the 15 witnesses. Is it fair to say that when the death of a 16 child is involved, there is great pressure on Crown 17 attorneys from -- well, from the public if it's high 18 profile; from the police. 19 You're under a lot of pressure, is that a 20 fair comment? 21 MR. BRIAN GILKINSON: I don't know that 22 there's anymore pressure brought to bear when there's a 23 death of a child. Every case depends on its individual 24 circumstances, but as Crowns, we are engaged to -- to 25 prosecute criminal offences that have been investigated;
1091 where charges are laid by the police. 2 We review them with respect to reasonable 3 prospect of conviction of public interest, and we go 4 forward with them. In terms of pressure, you're talking 5 about public interest, there's going to naturally be more 6 public interest with respect to some cases than others, 7 but it's not an unusual situation for those kinds of 8 cases involving children or otherwise to -- to occur. 9 And I don't think that changes the manner 10 in which Crowns approach the prosecution and prepare for 11 it and -- and pursue it. I don't necessarily think that 12 changes the way police forces should investigate or -- or 13 react to new evidence as it occurs. 14 So I'm not certain that -- there's my -- 15 there's more interest, but I'm not certain that it's such 16 that would impact in the performance of duties. 17 MR. EDWARD BRADLEY: The way I would 18 answer that is: I don't keep box scores, but my best 19 estimate, as I've prosecuted between thirty (30) and 20 forty (40) homicides in my career, and if pressure is -- 21 is something that you don't like, then you shouldn't be a 22 Crown attorney because you're always going to be under 23 pressure, and particularly so in any homicide. 24 Any death is tragic and usually attracts 25 media attention. And does the death of a child attract
1101 more attention? Obviously, in many cases, that's 2 probably true. But that's something as Crown attorneys 3 we have to accept, and something we have to live with, 4 and we have to still do our job in spite of the pressure. 5 MS. ALISON CRAIG: Okay. And I'll just 6 conclude. Mr. Bradley, I think you said yesterday in 7 relation to the Sharon case something to the effect of, 8 If we didn't have a cause of death, we didn't have a 9 case, it's as simple as that. And then you withdrew the 10 charge. 11 And obviously you agree with me that that 12 was the right thing to do? 13 MR. EDWARD BRADLEY: Yeah, what I said 14 was, if we didn't have causation and we couldn't 15 establish that then we did not have reasonable prospect 16 of conviction. The charge had to be withdrawn. 17 Was it the right thing to do? Yes, it was 18 based on the obligations I have as a Crown attorney. 19 MS. ALISON CRAIG: Okay. Thank you, 20 Commissioner, I'll leave it at that. Those are my 21 questions. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 23 Craig. 24 Mr. Sokolov...? 25
1111 CROSS-EXAMINATION BY MR. SOKOLOV: 2 MR. LOUIS SOKOLOV: Good morning. My 3 name is Louis Sokolov, and I'm counsel for AIDWYC, the 4 Association in Defence of the Wrongly Convicted. Mr. 5 Registrar, can we have document PFP302993, that's at Tab 6 40 of the additional documents binder that you have been 7 provided with. At least I believe that's where it should 8 be. 9 And that's a Crown policy manual with -- 10 with respect to physical scientific evidence dated 11 November 13, 1997. 12 And you all have that in front of you? 13 MR. EDWARD BRADLEY: I'm sharing it with 14 my colleague here. I didn't get a copy for some reason. 15 MR. LOUIS SOKOLOV: All right. The -- 16 and as I understand it, that's not the current issue of 17 the Crown policy manual. There's a 2005 issue, but I put 18 that one in front of you because it's somewhat more 19 detailed than the one that exists at present. 20 Is that your understanding, Mr. Gilkinson? 21 MR. BRIAN GILKINSON: I'd have to review 22 them, but go ahead. 23 MR. LOUIS SOKOLOV: All right. The -- 24 could you turn up page 5, please, of that document, and 25 that's relationship with science witnesses.
1121 And I take it the three (3) of your are 2 generally familiar from time to time with the Crown 3 policy manuals; that that's a document that you're 4 supposed to have on your desk or at least within fairly 5 easy reach? 6 MR. EDWARD BRADLEY: It's in the laptop. 7 MR. LOUIS SOKOLOV: All right. 8 MR. EDWARD BRADLEY: Everybody's laptop. 9 MR. LOUIS SOKOLOV: And I just want to 10 explore some of these propositions that are here under 11 Section 3, Relationship With Science Witnesses. The 12 first one being the first paragraph. 13 "It is the clear duty of government 14 scientists to assist in a neutral and 15 impartial way in criminal 16 investigations. They must act in the 17 cause of justice." 18 And, Mr. Gilkinson, I'll start with you. 19 You -- I take it you would agree with that? 20 MR. BRIAN GILKINSON: Absolutely. 21 MR. LOUIS SOKOLOV: And there's nothing 22 new in this document. I take it, that that was your 23 understanding about the role of the scientific evidence - 24 - scientific evidence witnesses from the time you began 25 as a Crown attorney. Is that --
1131 MR. BRIAN GILKINSON: That's correct. 2 Those kinds of issues get dealt with expert's course and 3 Crown summer school, and -- and presentations that fall 4 in spring conferences, that sort of thing. 5 MR. LOUIS SOKOLOV: And I take it the 6 other two (2) of you would concur as well, Ms. Regimbal? 7 MS. TERRI REGIMBAL: Certainly. 8 MR. LOUIS SOKOLOV: Mr. Bradley...? 9 MR. EDWARD BRADLEY: Absolutely. 10 MR. LOUIS SOKOLOV: And the next 11 paragraph -- I won't read it all, but to -- to summarise 12 it says that the information that should be contained in 13 the report from the Crown expert witnesses has to be 14 comprehensive and contained that -- that's, not only 15 helpful to the Crown position, but -- but simply 16 relevant. 17 "The Crown should advise all experts 18 that they are not to take an 19 adversarial position, but are to 20 provide the Crown with the results of 21 any tests or information which arguably 22 may assist the accused, so that the 23 Crown may make proper disclosure." 24 And what's referenced there is the Martin 25 (phonetic) Committee Report, which the three (3) of you
1141 will be familiar with. But I would suggest to you that 2 there was nothing particularly new in this statement as 3 well. 4 Is that fair, Mr. Gilkinson? 5 MR. BRIAN GILKINSON: To my mind, it's 6 fair. And I mean, it -- it -- the duty of disclosure 7 with respect to anything that's relevant flows from 8 Stinchcombe which predated that. 9 MR. LOUIS SOKOLOV: All right. Now the - 10 - there's a few other propositions here which I want to 11 question you about. The -- at the bottom of the page: 12 "In the normal, core scientists 13 employed in government sponsored 14 forensic laboratories are exposed more 15 frequently to police investigators and 16 to Crown counsel than to 17 representatives of the defence. Indeed 18 the function of the forensic scientist 19 is in part to assist in the 20 investigation of crime which is carried 21 out primarily by police officers. The 22 forensic scientists therefore assist 23 police officers." 24 And then over to the next page, page 6, I 25 just want to draw your attention to the paragraph that
1151 starts with, "However": 2 "Because forensic scientists working in 3 government operated laboratories are 4 more familiar with police and 5 prosecution personnel, and with 6 prosecutorial approaches and concerns, 7 there may be a tendency for them to 8 feel aligned with the Crown." 9 And I'll just pause right there. May I 10 have your comments on -- on that passage, Mr. Gilkinson? 11 Are you aware of that -- 12 MR. BRIAN GILKINSON: Well it -- 13 MR. LOUIS SOKOLOV: -- that issue? 14 MR. BRIAN GILKINSON: -- it's -- it's 15 worded correctly in -- in terms of saying there may be a 16 tendency, but there may also be a perception that that's 17 the case, when in fact it's -- it's not. 18 I think it depends on the individual 19 scientist, and -- and how sincere he is about -- or she 20 is about in giving results and only the facts, exactly as 21 science dictates them to them. 22 MR. LOUIS SOKOLOV: And to the extent 23 that it may be a concern, and it certainly isn't in all 24 the cases, it's -- it's one (1) in which you'd agree 25 Crown attorneys prosecuting cases should be alive to, in
1161 dealing with individual forensic scientists? 2 MR. BRIAN GILKINSON: And if -- 3 MR. LOUIS SOKOLOV: Is that fair? 4 MR. BRIAN GILKINSON: -- if I can -- if I 5 can just say, I think it's -- it's fair to say that any 6 Crown that doesn't want to get rude -- a rude surprise or 7 embarrassed at trial is going to deal with those issues 8 before it ever hits the courtroom. We want to make sure 9 that we have information we can rely on. 10 MR. LOUIS SOKOLOV: Fair enough. And 11 there -- there's another element too and I'm thinking 12 about the -- the twin role of Crown not just as advocate, 13 but as a minister of justice. Did -- 14 MR. BRIAN GILKINSON: There's a quasi- 15 judicial function to make sure that the Crown in 16 proffering opinion evidence deals with it in such a 17 manner that it's given as legitimate weight and effect. 18 MR. LOUIS SOKOLOV: And, Mr. Bradley, 19 you'd agree with that as well, I take it? 20 MR. EDWARD BRADLEY: Yes, I would. In 21 the sense that you have to remember, this was originally 22 put into the Crown policy manual in 1997. And I know as 23 -- as a fact that in the intervening nine (9) years there 24 have -- has been a real active role played by the Centre 25 of Forensic Sciences, for example, to ensure both
1171 ethically and morally that their scientists do act as it 2 says right at the beginning, "neutral and impartial 3 scientists." And certainly that's the way I've found 4 them to be in my recent dealings with them. 5 MR. LOUIS SOKOLOV: And the principles 6 that are expressed here, apply equally out, I would 7 suggest to you, not just to employees of the Centre of 8 Forensic Science -- Sciences, but any scientific evidence 9 who's proffering eviden -- any scientific witness who's 10 proffering evidence on behalf of the Crown? 11 MR. BRIAN GILKINSON: Any expert that's 12 qualified to give opinion evidence, yes. 13 MR. LOUIS SOKOLOV: Now turning back 14 briefly, Ms. Regimbal, to the Amber Case, we -- we heard 15 and -- that following your review of the judgment of 16 Justice Dunn, that you didn't think it necessary, or you 17 didn't think of providing the judgment to your superiors 18 in the Crown's office. And I'm not going to go over that 19 in any great detail with you. 20 MS. TERRI REGIMBAL: Well Mr. Thomas, who 21 would have been my superior received a copy of that as 22 head Crown attorney for the district of Cochrane South. 23 MR. LOUIS SOKOLOV: All right. Beyond 24 Mr. Thomas, you -- you didn't obviously provide it to the 25 regional director or to anyone at 720 Bay in Toronto?
1181 MS. TERRI REGIMBAL: I didn't do that. I 2 can't answer for what Mr. Thomas did. 3 MR. LOUIS SOKOLOV: Now would you agree 4 now that it would have been helpful -- and I appreciate 5 it's with hindsight -- for your colleagues across the 6 Province to know of Justice Dunn's concerns regarding Dr. 7 Smith for when they would be calling his evidence in 8 subsequent cases, so they could at least be alive to 9 those concerns in preparing him in presenting his 10 evidence? 11 Would that not have been helpful to your 12 colleagues across the Province? 13 MS. TERRI REGIMBAL: I can't say that I 14 agree with that 100 percent at the point in time. If I 15 could have done something differently that I think would 16 have been helpful at that time is that I would have -- I 17 would have forwarded a copy of Justice Dunn's decision to 18 the Chief Coroner's Office to ensure that they, as his 19 supervisor in pathology, would also be aware of the 20 criticisms. 21 MR. LOUIS SOKOLOV: Let me -- let me ask 22 you, Mr. Gilkinson, because you mentioned a few moments 23 ago about not wanting to have any bad surprises when 24 you're prosecuting a case, and I think that goes to all 25 of us who are advocates.
1191 But would you not want to know when you're 2 considering calling an expert witness if there are 3 adverse judicial comments about that witness out there or 4 indeed if -- if your colleagues across the Province have 5 had negative experiences with that witness so that you 6 can prepare yourself and prepare the witness? 7 MR. BRIAN GILKINSON: Any information 8 that would assist us in determining whether or not we've 9 got the right expert or a qualified expert is going to be 10 of assistance. 11 And I think Ms. Regimbal has already 12 indicated that certainly since the Criminal Law Division 13 has become computerized that it's not uncommon for Crowns 14 with particular cases to send out a global missive asking 15 for any Crown to assist who's had information or 16 experience with a particular expert, whether proffered by 17 the Crown or proffered by the defence. 18 So there is -- there was an informal means 19 of communication, at least, since 1999 when computers 20 came to my office. 21 With respect to the appropriateness of 22 your suggestion, I -- I hesitate to speak on behalf of 23 the Ministry, but given my participation on the 24 Initiatives Team, I think that's been recognized. And I 25 think the dual reporting system that's being put in place
1201 is going to assist with respect to that as well as other 2 initiatives. 3 MR. LOUIS SOKOLOV: And let me just turn 4 that up then. The -- those are the Criminal Law Division 5 initiatives which were -- which you referred to 6 yesterday? 7 MR. BRIAN GILKINSON: Correct. 8 MR. LOUIS SOKOLOV: Do you have your copy 9 of them in front of you? 10 MR. BRIAN GILKINSON: Well, I'll see if I 11 can find them, if you want to bear with me. 12 MR. EDWARD BRADLEY: Here's a copy. 13 MR. BRIAN GILKINSON: Okay, thanks. I 14 have them. 15 MR. LOUIS SOKOLOV: And you're referring 16 to paragraph 4 for cases where there is adverse judicial 17 comment of the pediatric forensic pathology expert 18 witness? 19 MR. BRIAN GILKINSON: That's the start of 20 it but 4 should be read in conjunction with the -- 21 COMMISSIONER STEPHEN GOUDGE: Kept them 22 loose yesterday, I think? 23 MR. MARK SANDLER: The Registrar has them 24 up there. 25 COMMISSIONER STEPHEN GOUDGE: Can you
1211 grab them, Chris? Just give us a minute here -- 2 MR. LOUIS SOKOLOV: Certainly. 3 COMMISSIONER STEPHEN GOUDGE: -- Mr. 4 Sokolov. 5 MR. LOUIS SOKOLOV: The minutes are 6 precious, Mr. Commissioner. 7 COMMISSIONER STEPHEN GOUDGE: We will 8 stop the clock, Mr. Sokolov. 9 MR. LOUIS SOKOLOV: Thank you, sir. 10 11 CONTINUED BY MR. LOUIS SOKOLOV: 12 MR. LOUIS SOKOLOV: I was referring to 13 paragraph 4 and Mr. Gilkinson, you were saying that needs 14 to be read in -- 15 MR. BRIAN GILKINSON: That needs to be 16 read in conjunction with -- with all of the initiatives 17 as a whole. 18 Obviously, the information is not only 19 going to be going to the supervisor and the CLD lead for 20 child homicide cases, but we have other -- other 21 indications that we just alluded to in the Crown Policy 22 Manual of fostering direct communication with the agency 23 involved. 24 And obviously the -- 25 MR. LOUIS SOKOLOV: Well --
1221 MR. BRIAN GILKINSON: -- the pitfalls are 2 going to be known by the Child Homicide Resource Team as 3 well as the lead and the fact that if you're -- if you're 4 dealing with a pediatric case, there's a mandatory 5 contact that has to be made, and there's a duty on the 6 team to give advice. 7 So hopefully, all of that is going to try 8 and address a situation where we do not proffer experts 9 that can't give legitimate and accurate opinion. 10 MR. LOUIS SOKOLOV: And I don't mean to 11 suggest that this isn't helpful, Mr. Gilkinson, but I 12 just want to explore -- 13 MR. BRIAN GILKINSON: Certainly. 14 MR. LOUIS SOKOLOV: -- where it goes 15 from -- 16 MR. BRIAN GILKINSON: Okay. 17 MR. LOUIS SOKOLOV: -- there. 18 This paragraph number 4 refers to 19 pediatric forensic pathology witnesses. And would you 20 agree that that policy ought to extend to other types of 21 expert witnesses as well? 22 MR. BRIAN GILKINSON: Well, quite 23 frankly, these initiatives are designed to deal with the 24 concerns of this Commission, and I think it's necessary 25 for the Ministry to get experience dealing with these
1231 initiatives and util -- and assessing their usefulness in 2 this area first. 3 I could sit here as an individual and say 4 this may well be good across the board, but I think it's 5 a situation where we're trying to address the concerns of 6 this Commission, and I think the Ministry would like an 7 opportunity to assess how valid these initiatives are; 8 whether or not something else should be added to them, or 9 whether or not they should be extended, and that's no 10 doubt going to be considered in the future. 11 MR. LOUIS SOKOLOV: Well, let me ask you, 12 then, not as a representative as -- of the Ministry, but 13 as a Crown attorney who prosecutes cases in this Province 14 on -- on a daily basis. 15 MR. BRIAN GILKINSON: I think every Crown 16 who prosecutes cases involving expert opinion evidence 17 can act, by analogy, from positions that have already 18 been put in place by the Ministry, whether they're in the 19 Crown policy manual or they're initiatives directly 20 related to the problems that haven't been experienced in 21 pediatric forensic pathology. 22 So Crowns throughout the Province are 23 guided by the Crown policy manual in terms of how they 24 should be behaving, vis-a-vis, experts from the Centre of 25 Forensic Science.
1241 It doesn't take a great leap to think that 2 Crowns are cognizant of those same considerations when 3 they're dealing with other experts. 4 MR. LOUIS SOKOLOV: And in your own 5 experience, it would have been -- or actually, let me 6 then turn to you, Mr. Bradley. When you came onto the -- 7 the matter that you were prosecuting, it would have been 8 helpful to you, I would suggest, to, at least, of known 9 of jester -- Justice Dunn's judgment in the Amber case; 10 that would have been relevant information for you as a 11 prosecuting Crown attorney. 12 MR. EDWARD BRADLEY: I guess anytime you 13 have more information, it's always helpful, but in -- in 14 my case, when I first came onto it, the fact scenario was 15 already starting to change and had changed. The opinions 16 were starting to change, both of Dr. Smith and Dr. Wood, 17 so it's a completely different situation and it 18 progressed from there. 19 So I'm not sure that, with all due respect 20 to Mr. Justice Dunn, that his judgment would have made 21 any difference to me. I -- I had some concerns from the 22 beginning. 23 MR. LOUIS SOKOLOV: All right. Let me 24 turn, then, to another issue, briefly, and if we could 25 have the document at Tab 40, PFP302993, back again, the -
1251 - the Crown policy manual. 2 And if you could turn up paragraph 2, this 3 raises an issue with respect to disclosure that I would 4 like to explore with you in my remaining time. It's 5 PFP302993, Mr. Registrar. 6 7 (BRIEF PAUSE) 8 9 MR. LOUIS SOKOLOV: At page 2. And the 10 issue that I want to explore with you, and I'll ask you 11 first, Mr. Gilkinson, is -- is the issue of -- of Crown 12 meetings with experts and whether the -- the Crown notes 13 of those meetings ought to be subject to disclosure to 14 the defence. 15 At the -- and I'll ask you to refer to 16 subheading (B), "Duty of Disclosure With Respect to 17 Scientific Advisors to the Crown". There's reference 18 there to the -- paragraph 15 of the Crown policy manual: 19 "Disclosure providing that Crown 20 counsel generally need not disclose 21 internal Crown counsel notes, 22 memoranda, correspondence, or legal 23 opinions. Such material reflecting 24 only the thought processes and 25 strategies of counsel is not relevant."
1261 What then of meetings with experts where 2 the Crown counsel is being advised by the expert; where 3 the opinion of the expert may be taking shape? 4 Are those notes subject to disclosure in 5 your view? 6 MR. BRIAN GILKINSON: It's the content of 7 the meeting that is germane to a disclosure obligation. 8 If in meetings with experts after they had given their 9 original written opinion that needs to be disclosed 10 result in any change in that opinion, that has to be 11 disclosed, and it's the change in the evidence that may 12 be relevant to the issue of guilt or innocence that 13 triggers the disclosure obligation. 14 Crown notes in and of themselves don't do 15 that. And in fact, with respect to whether or not the 16 Crown's there taking notes, in all likelihood, there's 17 going to be a third party there taking notes in the -- in 18 -- in the form of a police officer, but no matter who 19 would take notes or record that meeting, the Crown has to 20 be cognizant of any change in opinion relevant to either 21 guilt or innocence, and that's the material that needs to 22 be disclosed. 23 I don't think it's necessary to disclose 24 Crown notes per se. It is necessary to -- to disclose 25 significant change -- well, I shouldn't say significant
1271 changes, any changes on the opinion of the expert. 2 MR. LOUIS SOKOLOV: All right. Now, 3 you'd appreciate there can be some nuance to the issue of 4 whether or not opinion is changed or whether the -- the 5 tone or the tenor of an opinion can change? It's not 6 simply a black and white question? 7 MR. BRIAN GILKINSON: Well, quite 8 frankly, trying to disclose Crown's notes is trying to -- 9 basically looking through the prism of a layperson's 10 interpretation of what the expert has said. It's 11 important for the Crown to listen to what the expert has 12 to say, compare it with what was indicated in writing, 13 and ask the expert, Does this constitute a change in your 14 opinion? How would you express that change? 15 And that needs to be recorded in writing 16 by the expert. That can be disclosed. And at least, 17 you're not looking at it as a defence counsel or anyone 18 else, as a trier of fact, through the eyes of the Crown 19 who may have done a disservice to the expert in -- in 20 taking something away from the meeting that wasn't 21 intended. 22 If there's any significant change, I think 23 the safer -- safer bet is to -- to try and have that 24 reduced to writing by the expert and disclosed. 25 MR. LOUIS SOKOLOV: And you mentioned in
1281 the majority of cases a police officer will be in 2 attendance, in those kinds of -- 3 MR. BRIAN GILKINSON: Well, that would be 4 my expectation. 5 MR. LOUIS SOKOLOV: All right. And those 6 notes by the police officer then are subject to 7 disclosure -- 8 MR. BRIAN GILKINSON: Well again, in 9 terms of whether to not -- what triggers disclosure is -- 10 is a change in the evidence bearing on the issue of guilt 11 or innocence. I still would want to see the disclosure 12 taken through the eyes of the expert and have him express 13 the change in writing to disclose that. 14 Then nothing gets lost in translation. 15 And quite frankly, there's no evidentiary values, as -- 16 as far as I can see, to either a Crown note of a -- of a 17 consultation or a -- a police note of a consultation. 18 The value is what the expert has to say with respect to 19 that opinion. 20 Now, if there's extraneous material or 21 material that may be coming out of that -- of that 22 meeting that clearly isn't interpretative of an expert 23 opinion that may still be relevant to the issue of guilt 24 or innocence, the Crown can disclose that as well. 25 MR. LOUIS SOKOLOV: Okay. Do you agree
1291 it's good practice to have a police officer present when 2 Crowns meet with experts? 3 MR. BRIAN GILKINSON: Some third party 4 that's trained in taking notes and -- and who wants to be 5 a witness at the trial rather than the Crown who doesn't, 6 yes. 7 MR. LOUIS SOKOLOV: Thank you. Those are 8 my questions. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 10 Sokolov. Now, Ms. Greene and Ms. Davies, you are going 11 to split your time somehow? 12 MR. MARA GREENE: I think it's just me, 13 actually. 14 COMMISSIONER STEPHEN GOUDGE: It is just 15 going to you. 16 17 CROSS-EXAMINATION BY MS. MARA GREENE: 18 MR. MARA GREENE: Good afternoon. 19 MR. BRIAN GILKINSON: Good afternoon. 20 MR. EDWARD BRADLEY: Good afternoon. 21 MR. MARA GREENE: I'm going to lead off 22 from where Mr. Sokolov ended dealing with disclosure in 23 practices. And as I understand the evidence that was 24 just given that there's the obligation to disclose any 25 change in the expert's opinion, is that correct?
1301 MR. BRIAN GILKINSON: That's my belief. 2 MR. MARA GREENE: I gather -- and I'll 3 start with you, Mr. Gilkinson -- that you also have an 4 obligation to disclose not only a change in the opinion, 5 but also any elaboration on the opinion or explanation on 6 the opinion that's not clear from the report? 7 MR. BRIAN GILKINSON: I'm content with 8 that. That would fall under the heading of a -- of a 9 change or an addendum, and that's fine. 10 MR. MARA GREENE: Mr. Bradley, do you 11 agree with that as well? 12 MR. EDWARD BRADLEY: I -- I think any 13 variation that occurs from the original opinion should be 14 disclosed, yes. 15 MR. MARA GREENE: So would that -- so if 16 -- when the meeting occurs between Crown counsel and the 17 expert -- to review the report, explain the report, and 18 get a better understanding of the opinion to the extent 19 that the opinion is explained -- the notes of that 20 explanation ought to be disclosed? 21 MR. EDWARD BRADLEY: If there's a -- a 22 difference or a variation. If -- if it's simply 23 explaining it in perhaps two (2) ways, but if it's a 24 difference in any fashion from his opinion then certainly 25 I would agree it should be disclosed.
1311 MR. MARA GREENE: And would you consider 2 an elaboration a difference? 3 MR. EDWARD BRADLEY: I'd have to look at 4 it on a fact-by-fact basis, you know, I can't give a -- a 5 flat answer. I'd have to look at what the extent of the 6 elaboration is. If -- if, for example, it's something 7 very, very minor, you know, where he says, I looked at 8 something on the 15th of whatever month at one o'clock 9 and it turns out it was 1:15, I'm not sure that's a 10 significant difference. 11 MS. MARA GREENE: Ms. Regimbal, do you 12 have any comments on that point? 13 MS. TERRI REGIMBAL: My own practice is I 14 prefer to go back from the meeting and if there are any 15 changes, additions, variations, put them in a letter, 16 send them to the pathologist to make sure that I have 17 understood what those changes, variances, or additions 18 are and have the pathologist, or whatever forensic expert 19 I might be dealing with, confirm that. 20 But I certainly agree that if there are 21 any changes, additions, variances, that they ought to be 22 disclosed to the defence. 23 MS. MARA GREENE: And in fact, yesterday 24 you explained, in great detail, your process of having a 25 meeting, formulating the questions, and sending the
1321 questions off to the pathologists. 2 And I just want to ask you some questions 3 about your disclosure process -- 4 MS. TERRI REGIMBAL: Yes. 5 MS. MARA GREENE: -- in that. The notes 6 of your meeting with the pathologist, you do not 7 disclose, is that fair? 8 MS. TERRI REGIMBAL: I don't think I 9 would say the blanket statement that I do not disclose my 10 notes of the meetings with the pathologist. Certainly, I 11 -- I often am not taking notes. I often would have a 12 police officer with me. 13 If I had notes of what I understood the 14 pathologist to say and it was a change, a variation, or 15 addition, I probably would disclose those portions of the 16 notes along with the pathologist's explanation. 17 MS. MARA GREENE: And if a police officer 18 is present, do you typically provide those notes? 19 MS. TERRI REGIMBAL: Yes. 20 MS. MARA GREENE: Okay. And then the 21 questions you pose to the expert and the answers you get 22 back -- 23 MS. TERRI REGIMBAL: Yes. 24 MS. MARA GREENE: -- do you disclose the 25 questions and the answers?
1331 MS. TERRI REGIMBAL: Yes. 2 MS. MARA GREENE: Thank you. Now, in 3 many of the cases we've discussed over the past day or 4 so, there's been an indication that at times you receive 5 some information that would call into question Dr. 6 Smith's credibility, or competency, or reliability. 7 In particular, Mr. Bradley, Dr. Young gave 8 you some information that caused you some concern about 9 Dr. Smith, is that right? 10 MR. EDWARD BRADLEY: That's correct. 11 MS. MARA GREENE: And did you disclose 12 that information to the defence at the time? 13 MR. EDWARD BRADLEY: Yes, I did. 14 MS. MARA GREENE: Okay. And so you feel 15 that's your obligation to disclose that information. 16 MR. EDWARD BRADLEY: In those 17 circumstances, obviously, yes. 18 MS. MARA GREENE: Okay. And so typically 19 you would agree that any information that tended to 20 discredit or question the reliability or competency of an 21 expert witness ought to be disclosed, Mr. Bradley? 22 MR. EDWARD BRADLEY: I think in a general 23 sense, but once again, I -- I think you have to look at 24 it on a case-by-case basis. For example, in my case I 25 advised defence counsel specifically the name of the --
1341 of the expert we were hiring; what's -- how we were going 2 about it; that we were sending all of the exhibits as far 3 as weapons were concerned "so-called weapons", in 4 quotation marks, knives, scissors that were from the 5 house; that the skeletal remains were being taken down by 6 a police officer, et cetera, et cetera; and, you know, 7 made it clear that as soon as we got the report, we were 8 going to disclose that, and that was -- that was done as 9 early as possible. 10 MS. MARA GREENE: Thank you. Now, I also 11 understand that during the course of your preparation for 12 your case, you investigated the qualifications of Dr. 13 Ferris, is that correct? 14 MR. EDWARD BRADLEY: Yes, I did, in the 15 context of speaking to him when I was out in Vancouver, 16 and -- and then I subsequently came back and did meet in 17 September of 2000 with Dr. Woods and Dr. Smith, and did 18 ask Dr. Wood if -- if he knew of any information that 19 would be of assistance in cross-examining Dr. Ferris 20 should Dr. Ferris be called as an expert, and we heard 21 about some of that yesterday. 22 MS. MARA GREENE: And did you disclose 23 that information to the defence? 24 MR. EDWARD BRADLEY: Yes, I did. 25 MS. MARA GREENE: All right.
1351 MR. EDWARD BRADLEY: In fact, the police 2 officer was present during those discussions, and there's 3 a copy of his notes that's in the volume and that was 4 disclosed. 5 MS. MARA GREENE: And, Mr. Gilkinson, do 6 you believe it's the Crown obligation to disclose to the 7 defence any negative information or positive information 8 they found out about the defence experts? 9 MR. BRIAN GILKINSON: Who finds out about 10 the ne -- the defence expert? 11 MS. MARA GREENE: Where a Crown -- 12 MR. BRIAN GILKINSON: Yes. 13 MS. MARA GREENE: -- or police officer 14 has made attempts to investigate the credibility, 15 reliability, or competency of a defence expert, do you 16 disclose this to the defence? 17 MR. BRIAN GILKINSON: It's all part and 18 parcel of trying to reach a common ground in terms of 19 these issues. If -- if experts can sit down and agree, 20 if counsel can sit down and agree in terms of just 21 exactly the strength of their case, the greater the 22 chance that issues can be resolved or narrowed if a trial 23 is necessary, so yes. 24 MS. MARA GREENE: So you do disclose it. 25 And Ms. --
1361 MR. BRIAN GILKINSON: Mm-hm. 2 MS. MARA GREENE: -- Regimbal, your 3 position? 4 MS. TERRI REGIMBAL: I think it would 5 have to depend on the type of negative information; if it 6 was relevant to the defence expert's evidence, of his 7 reliability, yes. If I had it in advance of the 8 testimony of the expert I would disclose it to the 9 defence. 10 MS. MARA GREENE: Thank you. If I can 11 have document number PFP030788. I think that's tab 12 number 36 in your binders. If I can have the second page 13 of that, please. 14 This is an email that at the time John 15 McMahon, Crown Attorney, wrote to all the Assistant Crown 16 Attorneys asking for information on Dr. Smith and Crown 17 counsel's experience with Dr. Smith. 18 And I know that Mr. Gilkinson, you 19 provided an answer to this and that has been disclosed. 20 Mr. Bradley, do you recall receiving this 21 email and responding to it -- 22 MR. EDWARD BRADLEY: Yes -- 23 MS. MARA GREENE: -- and outlining your 24 experiences? 25 MR. EDWARD BRADLEY: Yes, I did and
1371 somewhere in the other volume, in fact, there's a 2 response where it indicates that a package was -- that's 3 in my volume at Tab 16 -- sending to Mr. McMahon on the 4 29th of November, 2002: 5 "Rita, Ed and I put a package together, 6 we'll Purolate to you, but which office 7 do you want it to go to?" 8 So yes, we complied with that. 9 MS. MARA GREENE: Thank you. And, Ms. 10 Regimbal, did you respond to this? 11 MS. TERRI REGIMBAL: I was off, away from 12 the office from August 2002 till April of 2003 and I 13 didn't see this email. I understand Mr. Thomas responded 14 to it but I have no personal information about his 15 response. 16 MS. MARA GREENE: Thank you. And do you 17 agree that it might be helpful if there was a sort of 18 centralized database that had all this information so 19 that emails like this wouldn't have to go out; that Crown 20 counsel could access immediately by typing the name of a 21 pathologist all prior contact -- negative contact with 22 that pathologist? 23 MR. BRIAN GILKINSON: Well, there's going 24 to be a database kept by CLD Net with respect to 25 information that would allow one (1) Crown to communicate
1381 to another Crown by virtue of the fact that they've had 2 experience with a particular expert. So there's 3 certainly an ability being put in place to allow that 4 kind of communication. 5 MS. MARA GREENE: And with that database 6 existing, would you agree that in every case where a 7 pathologist is being used, if that expert comes up on the 8 database it ought to be disclosed immediately to the 9 defence? 10 MR. BRIAN GILKINSON: No, I indicated 11 that they used to be made -- of the database is to allow 12 the Crown to consult with a colleaguem, with respect to 13 the experience that they had with that particular expert. 14 Again, a decision with respect to 15 disclosure of any information depends on whether or not 16 it's relevant to the issue of guilt or innocence and that 17 would be a decision for the Crown with the case at hand. 18 MS. MARA GREENE: And you would -- would 19 you agree that if the information related to the 20 credibility of the pathologist, that would be relevant to 21 the guilt or innocence of the accused person? 22 MR. BRIAN GILKINSON: Yes, there's been 23 some assessment with respect to reliability of that 24 information and otherwise, the quality of it, yes. 25 MS. MARA GREENE: Thank you. Now my
1391 understanding of the recommendations or the initiatives 2 that you handed out yesterday where this database was 3 being collected and that you were to give, the 4 initiatives requires number 4, that where adverse 5 judicial comment is made you must give it to the 6 supervisor of the expert and also to the Criminal Law 7 Division lead person. 8 MR. BRIAN GILKINSON: The dual reporting 9 process is an internal process of the Criminal Law 10 Division. The Crown involved in the case would -- would 11 disclose that to their supervisor; that is, the Crown 12 Attorney, if it wasn't the Crown Attorney that handled 13 the case. Or if it was the Crown, the Director of Crown 14 Operations for that region. 15 The other person that would receive it in 16 an internal dissemination would be the CLD lead for child 17 homicide cases, and no doubt that's going to be 18 communicated to the team. 19 There's also a policy in place to make 20 sure that the Director of the -- or the supervisor of the 21 expert himself that proved problematic be informed of the 22 issues. That's quite apart from the initiatives that 23 address the concerns of -- of this Inquiry. 24 MS. MARA GREENE: Thank you. I now 25 wanted to move into an area that was touched upon earlier
1401 today, and just delve into it a bit further, which is the 2 pathologist as a pot -- potential advocate. 3 And I think it was agreed -- and correct 4 me if I'm wrong, at least by Mr. Bradley -- that there's 5 -- that there have been occasion and there's always the 6 potential of a pathologist or an expert to act as an 7 advocate instead of the objective scientist that he or 8 she is to be. 9 Is that fair? 10 MR. EDWARD BRADLEY: I think when I used 11 the term advocate, in fairness to Dr. Ferris, I'm not 12 sure that he was -- he was trying to be completely 13 subjective. He was very passionate about his opinion. 14 He was convinced that Dr. Smith had it wrong. And in 15 that sense he was an advocate. That's the context and 16 the sense in which I was using it. 17 MS. MARA GREENE: Sorry. And I was using 18 it in the same context, so -- 19 MR. EDWARD BRADLEY: Okay. If -- if it's 20 that context, then we're in agreement. 21 MS. MARA GREENE: Okay. And in -- and in 22 -- Ms. Regimbal, when you were dealing with Dr. Smith on 23 the SM case many, many years ago, it was also your 24 experience -- experience that the experts that you were 25 dealing with were pretty adamant that their position was
1411 correct, even in the face of alternative positions, 2 correct? 3 MS. TERRI REGIMBAL: It's safe to say 4 they were very confident that they -- their diagnosis was 5 correct, yes. 6 MS. MARA GREENE: And there wasn't a 7 whole lot of room or leeway for these experts to consider 8 or try to adopt or accept the reasonableness of the 9 alternative position? 10 MS. TERRI REGIMBAL: Well, I think they 11 just not accept it. I think they did consider it, and I 12 think that they're positions, which we outlined in their 13 testimony, was that it was outside their experience, 14 experience of colleagues, outside what the literature 15 taught. 16 So I think they did consider these matters 17 that were put to them very extensively in cross- 18 examination, but rejected them on those basis; that they 19 felt some of the -- they questioned some of the studies 20 that were put to them; what the methodology was, what the 21 his -- what the reliability of the histories was. 22 So I think they did consider it, but I 23 think upon considering it they ended up rejecting it on 24 the basis of their understanding of the science at that 25 time, and on the basis of their own experience and
1421 experience of their colleagues. 2 MS. MARA GREENE: And that position did 3 not change, even after trial, when there was a finding 4 made against their science, fair? 5 MS. TERRI REGIMBAL: Yeah, I think that's 6 fair. They -- they continued to believe in the science 7 that they stood up and discussed in the course of the SM 8 trial. 9 MS. MARA GREENE: Now I want to turn to 10 the area of the term that's been used a fair bit over the 11 past day and half, is reciprocal disclosure. And I sort 12 of want to start at basics if we can, and first get a 13 definition for reciprocal disclosure. So when you speak 14 of wanting reciprocal disclosure, what you include in 15 that definition. 16 And I'll start with Mr. Gilkinson. 17 MR. BRIAN GILKINSON: Well in the context 18 of this Inquiry we're talking about reciprocal disclosure 19 of expert opinion evidence bearing on the issues in the 20 case, or the perceived issues in the case. 21 I think that should be triggered, as I 22 said yesterday, by a clear indication to the defence of 23 what the Crown expert has to say, either comprehensively 24 in writing or at the preliminary inquiry, so that the 25 defence should have some reasonable degree of confidence
1431 that there's a clear basis to cross-examine that Crown 2 expert if that opinion changes at trial. 3 At that point in time I think it's 4 important for the defence to share with the Crown the 5 expert opinion evidence in a similar fashion; that is, 6 comprehensively and in writing -- not necessarily by 7 calling them at a preliminary inquiry -- so that there's 8 some meaningful assessment by both Crown and defence of 9 what can be interpreted by the trier of fact, based on 10 the body of expert opinion evidence that's going to be 11 brought to bear. 12 Both sides would then have an opportunity 13 to determine whether or not they've actually got the 14 experts necessary to address the legitimate issues that 15 call for that kind of assistance, and go further in 16 either getting more opinion on other areas that weren't 17 considered, or at least if we're satisfied with the body 18 we've got, lets sit down and talk about whether or not we 19 can resolve some of these issues, or at least narrow them 20 and expedite the trial process in a -- in a legitimate 21 and principled manner. 22 MS. MARA GREENE: So I want to just break 23 that down to what you expect to receive. And I gather 24 you'd expect to receive a report from the expert? 25 MR. BRIAN GILKINSON: Well first of all,
1441 the matter is under six seventy (670) -- six fifty-seven 2 point three (657.3). 3 MS. MARA GREENE: Okay. And that's what 4 you would limit it to? 5 MR. BRIAN GILKINSON: No. 6 MR. MARA GREENE: Okay. 7 MR. BRIAN GILKINSON: First of all, the 8 matters that the code mandates under 657.3 as early as 9 possible, and then a comprehensive report dealing with 10 the issues that have been addressed by the expert for the 11 Crown and any ancillary issues that that defence expert 12 thinks have not been considered or that he should comment 13 on -- he or she should comment on. 14 MR. MARA GREENE: And do you require 15 anything beyond the report then? 16 MR. BRIAN GILKINSON: Well, it would be 17 nice to see his qualifications, as I said, -- 18 MR. MARA GREENE: Right. 19 MR. BRIAN GILKINSON: -- with respect to 20 657.3 just to make it clear on the record. 21 MR. MARA GREENE: And so the CV and the 22 report? 23 MR. BRIAN GILKINSON: Background 24 information that was supplied to the -- to the expert 25 might assist in understanding the opinion. Again, that
1451 may be something that needs to be given further 2 examination depending on whether or not it's based on an 3 explanation given by the -- by the accused that you may 4 not wish to -- to communicate. 5 MR. MARA GREENE: So insofar as the 6 report would make reference to any information given by 7 the accused person that wasn't made in a statement to the 8 police or otherwise, would you expect to get that? 9 MR. BRIAN GILKINSON: If, in fact, the 10 defence plans on proffering that explanation in calling 11 the expert, I see nothing to be lost to the -- the 12 administration of justice by including it. That's just a 13 situation where defence counsel is going to be asked if, 14 in fact, they're proffering expert opinion to disclose 15 the foundation for it by way of background. 16 MR. MARA GREENE: And does that complete 17 your list of items you would -- you would want in 18 reciprocal disclosure? 19 MR. BRIAN GILKINSON: Well, I can tell 20 you that I'm been scratching my head for the last number 21 of months to deal with that particular issue, but I think 22 it's a good start. 23 MR. MARA GREENE: Okay. Mr. Bradley, do 24 you have anything to add to that list? 25 MR. EDWARD BRADLEY: I don't have
1461 anything to add other than once again -- and I -- I hate 2 to sound like a broken record, but I think that in an 3 individual case, you know, it might require something 4 conditional. For example, in the Reynold's case, where 5 defence counsel -- I think there's actually a letter in - 6 - in the binder saying that she views me as -- that's Ms. 7 Hawthorn -- as a reasonable person and would like me to 8 consider withdrawing the charge. 9 It's very difficult to do that if you 10 don't even have a detailed report setting out the basis 11 on which the experts came to their conclusion. And to 12 this very day, Dr. Dorion, all I got was a five (5) line 13 report apart from saying, I looked at some photographs. 14 MR. MARA GREENE: No, I appreciate the 15 difficulties you consider yourself faced with -- 16 MR. EDWARD BRADLEY: So that's why I say 17 you look at it on a case-by-case basis because in that 18 case it was crucial especially when the defence counsel 19 was asking me to do something very drastic as far as the 20 prosecution was concerned. 21 MR. MARA GREENE: So -- 22 MR. EDWARD BRADLEY: So would I require 23 more in that case? Yes, I would. But leaving that 24 aside, the short answer is what Mr. Gilkinson has said 25 that certainly would be the minimum that I would expect
1471 or would hope to see. 2 MR. MARA GREENE: Yes. And, Ms. 3 Regimbal...? 4 MS. TERRI REGIMBAL: The only comment I 5 might add is in a situation that I was dealing with where 6 there was no Preliminary Hearing. I think that part of 7 the concern about freezing the Crown's expert -- the 8 Crown expert's evidence could be answered by defence 9 providing a list of questions they wish answered. 10 I've done that in the past. If they -- 11 defence needs more information from my expert, they've 12 just sent a list of questions to the expert, and he has - 13 - or she has answered the questions, and cc'd me a copy 14 of the answers and the questions. 15 And I think that would assist in dealing 16 with any concerns that the defence might have about not 17 being able to freeze the Crown's evidence in a youth 18 matter. And I underline the importance of knowing what 19 the experts were provided because in the course of the 20 prosecution I did, many of the experts who testified on 21 behalf of the defence did not have all of the 22 information. 23 They were given excised portions. They 24 were given -- some of them hadn't seen photos. Some of 25 them had seen photos. Some of them were completely
1481 unaware of some of the evidence that had been given in 2 the Crown case. And so with each expert, I had to go 3 through the elaborate process to find out exactly what 4 they had happen because sometimes, for example, they 5 might be critical of one (1) of the doctors from Hospital 6 for Sick Children because they didn't do A) and only to 7 find out in cross-examination by being shown the rest of 8 the transcripts, Well, no, they did do that so that 9 criticism is unwarranted. 10 And that was a consistent problem in the 11 presentation of the defence experts. And I felt, from a 12 prosecutorial perspective, that it somewhat weakened 13 their strong opinions in-chief to find out they hadn't 14 had access to all of the relevant information. 15 So I think that underlines the importance 16 of the Crown receiving in the information of what the 17 expert had that they could base their opinion on. 18 MS. MARA GREENE: Now, that takes me to 19 my next area which is the perceived benefits of the 20 reciprocal disclosure, and I -- I want to put what I 21 understand to be your views on the perceived benefits; 22 firstly, that it can assist in narrowing the issues. 23 Is that fair? 24 MR. BRIAN GILKINSON: Correct. 25 MS. MARA GREENE: Okay. And it also
1491 assists Crown counsel in preparing for their case, 2 correct? 3 MR. BRIAN GILKINSON: It -- it assists 4 both counsel. 5 MS. MARA GREENE: It assists Crown 6 counsel in -- it assists the Crown pathologist in 7 understanding what issues -- or what's at issue in their 8 report or their opinion. 9 Is that fair? 10 MR. BRIAN GILKINSON: And what -- what 11 issues haven't been considered, if any. 12 MS. MARA GREENE: And are there any other 13 perceived benefits to a reciprocal disclosure, and I'll 14 start on this end with Ms. Regimbal. 15 MS. TERRI REGIMBAL: Yes, absolutely, 16 because it would definitely assist the Crown in 17 determining reasonable prospect of conviction; whether or 18 not the case ought to proceed. 19 And if there's a legitimate -- and I've 20 done this in my practice where I have been presented with 21 legitimate defence expert reports prior to the trial and 22 it has changed my assessment and I have withdrawn the 23 charge on the basis of the reports or the expert evidence 24 provided to me by defence counsel so I think that's a 25 huge benefit.
1501 MS. MARA GREENE: MR. Bradley, do you 2 agree with that? 3 MR. EDWARD BRADLEY: Yes, I do, and -- 4 well, I -- I appreciate that any trial is an adversarial 5 process. Certainly in smaller jurisdictions -- and I've 6 -- I've practised in Whitby which was a large 7 jurisdiction, even at the time I was there in the '80's - 8 - and that is that if both the defence and the Crown 9 counsel have respect for one another and appreciate that 10 there is -- I may be old fashioned -- actually a search 11 for the truth as part of the trial process, then the 12 exchange of expert evidence when expert witnesses are 13 crucial both to the defence and the Crown perspective, 14 that is a benefit from both sides, both the defence and 15 the Crown. 16 MS. MARA GREENE: Mr. Gilkinson, do you 17 also agree? 18 MR. BRIAN GILKINSON: Anything that's 19 going to eliminate the need for a trial or narrow the 20 issues so that it's not any longer than it needs to be is 21 -- is going to be a benefit, and I'll agree with 22 everything that's been said. 23 MS. MARA GREENE: Thank you. And in fact 24 in your -- the case that you were involved with, you, in 25 fact ultimately, did withdraw the charges.
1511 MR. BRIAN GILKINSON: That is correct. 2 MS. MARA GREENE: And that was, in part, 3 because you did receive additional information, correct? 4 MR. BRIAN GILKINSON: A huge part. 5 MS. MARA GREENE: Okay. 6 MR. BRIAN GILKINSON: A huge part. 7 MS. MARA GREENE: And I want to just 8 discuss that process with you because it didn't -- you 9 received the defence opinion. 10 Is that fair? 11 MR. BRIAN GILKINSON: That's correct. 12 MS. MARA GREENE: And you had a chance to 13 meet with that person, correct? 14 MR. BRIAN GILKINSON: I spoke with Mr. 15 Hauraney initially and he -- and he communicated to me 16 verbally the fact that he had a number of doctors that he 17 had consulted with. And I can't recall in my first 18 meeting with him on this issue whether or not he had that 19 opinion with him at the time. 20 I know in the materials, just to try and 21 clear up a possible point of confusion, that he wrote me a 22 letter dated May the 4th, but I think, quite frankly, that 23 was probably dictated before April the 23rd and just 24 didn't get processed through his office. 25 MS. MARA GREENE: I don't mean to -- to
1521 cut you off, but I, sort of, want to get to, sort of, 2 where this is going, which is, you did ultimately meet 3 with the defence expert. 4 MR. BRIAN GILKINSON: Dr. Ein and I did. 5 MS. MARA GREENE: Yeah. 6 MR. BRIAN GILKINSON: I'm sorry if -- I 7 just wanted to clear up a possible point of confusion in 8 the materials. 9 MS. MARA GREENE: Fair enough, thank you. 10 And at that meeting, and as a result of that meeting, in 11 addition to having the other opinion which would indicate 12 that Ms. Waudby was, in fact, innocent of the offence, you 13 also -- Ms. -- Dr. Smith also changed his opinion, is that 14 fair? 15 MR. BRIAN GILKINSON: That's my perception 16 of what happened, as a layperson at that meeting putting 17 questions to both doctors. 18 MS. MARA GREENE: But at that point in 19 time, you did not make the decision to withdraw the 20 charges. Instead you contacted OCCO to see if they had 21 yet another expert -- that they want to consider looking 22 into yet another expert on the point. 23 Is that fair? 24 MR. BRIAN GILKINSON: Well -- well, yes, 25 and at some point along the line, I had the report of Dr.
1531 Finkel and Dr. Fitzgerald from Hamilton, and I knew 2 verbally what Dr. Rao apparently would agree with in terms 3 of timing. 4 So I indicated the preponderance of opinion 5 seemed to be that this matter happened on the babysitter's 6 watch, but in -- in fairness to the people that had 7 proffered Dr. Smith and involved Dr. Smith in this case 8 and dealing with the issue of timing, I wanted to ensure 9 that, quite frankly, there was no further opinion out 10 there that would cast doubt on -- on what Mr. Hauraney 11 actually had. 12 MS. MARA GREENE: And I want to, sort of, 13 explore that for -- for a minute in the trial context, 14 because as I understand your evidence is that if you get a 15 defence opinion that seems solid and then your own witness 16 now agrees with it, you still wanted to explore if there 17 was yet another opinion that would cast doubt on it. 18 And I'm trying to understand the 19 circumstances or what kind of opinion that could cast 20 doubt on the situa -- that could raise the prospect of 21 there being a conviction when two (2) strong pathologists 22 have now excluded Ms. Waudby as being the perpetrator. 23 MR. BRIAN GILKINSON: Well, what I had was 24 I think one (1) page reports or correspondence from Dr. 25 Finkel and Dr. Fitzgerald and Mr. Hauraney, if I had
1541 those. And I can't tell you when I saw those. 2 I had the letter from Mr. Hauraney dated 3 May the 4th talking about those people and indicating he 4 was intending to call them if the case went forward, but I 5 can't tell you when I saw the actual opinion. 6 But it was one (1) page material. It 7 wasn't what I would have considered a full, comprehensive 8 report detailing their analysis of the Crown disclosure 9 by way of post-mortem examination. 10 So the circumstance you're descri -- we've 11 been theoretically postulating here is not the 12 circumstance that I was faced with in that particular case 13 in terms of a comprehensive opinion and the foundation for 14 it and the CV of the individuals involved. 15 In fact, there were certain aspects of some 16 of that opinion that -- not with respect to timing but 17 with respect to other aspects that I'd be somewhat 18 sceptical of and would want to check out myself; that is, 19 areas where they seemed to be speculating beyond their 20 area of expertise. 21 So I just wanted to make sure that, as I 22 did with Dr. Ein, I wanted to see if there was any 23 possible way Brenda Waudby could be implicated in this 24 particular matter; not because I was interested in 25 prosecuting Brenda Waudby but before I withdraw against
1551 Brenda Waudby, I wanted to be clearly satisfied in my own 2 mind that was the proper thing to do. 3 MS. MARA GREENE: But I'm just trying to 4 understand what kind of opinion would have led you to want 5 to continue the prosecution when you already have two (2) 6 strong pathologists agreeing that it wasn't on her watch. 7 So what kind of opinion -- what kind of 8 expert could come forward that would make you find that 9 there was a reasonable prospect of conviction in that 10 case? 11 MR. BRIAN GILKINSON: You're describing 12 that they were two (2) strong pathologists; are you 13 talking about Dr. Finkel and Dr. Fitzgerald? 14 MR. BRIAN GILKINSON: I'm talking about 15 Dr. Smith and Dr. Ein. 16 MR. BRIAN GILKINSON: Dr. Ein is not a 17 pathologist -- 18 MS. MARA GREENE: Sorry. 19 MR. BRIAN GILKINSON: -- he's a pediatric 20 surgeon. 21 MS. MARA GREENE: Sorry, not pathologists 22 there -- 23 MR. BRIAN GILKINSON: And I'm not -- 24 MS. MARA GREENE: -- are two (2) strong 25 experts that gave you views on timing.
1561 MR. BRIAN GILKINSON: I can tell you, at 2 the point of April the 23rd, 1999, I did not consider Dr. 3 Smith to be a strong Crown witness or a strong expert with 4 respect to this particular case that I was dealing with. 5 I had the information from Dr. Ein. I had 6 some information with respect to Drs. Finkel and 7 Fitzgerald, but I don't know when I saw a one (1) page 8 correspondence to Mr. Hauraney. 9 So you can call them strong. I don't know 10 that as a fact. That's why I went back to the Office of 11 the Chief Coroner, gave Dr. Porter the information I had 12 received and said, I'd like you to consult with whomever 13 you think will assist in giving me a definitive opinion 14 one way or the other with respect to timing. 15 MS. MARA GREENE: Thank you. 16 Ms. Regimbal, I want to take you to the SM 17 case. And you've indicated that if you had reciprocal 18 disclosure, it can assist you in assessing reasonable 19 prospect of conviction; that's a very important component 20 to you. Is that right? 21 MS. TERRI REGIMBAL: Yes, that's an 22 important potential consequence of obtaining reciprocal 23 disclosure on expert reports. 24 MS. MARA GREENE: And in the case of 25 Regina versus SM, you, in fact, did write a letter to
1571 defence counsel requesting reciprocal disclosure. Is that 2 fair? Of the expert opinion? 3 MS. TERRI REGIMBAL: Yes. 4 MS. MARA GREENE: And can we pull up that 5 letter, I think it's at Tab 22 of your binder, it's 6 PFP120416. 7 MS. TERRI REGIMBAL: Sorry, what was the 8 tab? 9 MS. MARA GREENE: 22. 10 11 (BRIEF PAUSE) 12 13 MS. TERRI REGIMBAL: You mean in -- 14 perhaps in the first binder I was in? 15 MS. MARA GREENE: Yes, it would be in the 16 first binder. 17 COMMISSIONER STEPHEN GOUDGE: Your binder 18 from yesterday, Ms. Regimbal. 19 MS. TERRI REGIMBAL: All right. It's on 20 the board anyways. Yes, I have it in front of me. 21 22 CONTINUED BY MS. MARA GREENE: 23 MS. MARA GREENE: Thank you. And the last 24 paragraph of that letter -- that's a letter that you wrote 25 to defence counsel, correct?
1581 MS. TERRI REGIMBAL: It's a letter I wrote 2 to Mr. Renaud, yes. 3 MS. MARA GREENE: And it indicates: 4 "I would ask you to send me copies of 5 your expert's report for the purpose of 6 expediting the trial. As you are 7 undoubtedly aware, the complex nature of 8 the evidence given by all these medical 9 individuals and experts in their field, 10 require some careful preparation for 11 cross-examination. I don't wish to 12 protract the proceedings by having to 13 ask for further adjournments in order to 14 prepare my cross-examination 15 appropriately." 16 MR. MARA GREENE: In that letter, you 17 don't indicate that you want reciprocal disclosure for the 18 purpose of assessing a reasonable prospect of conviction, 19 is that fair? 20 MS. TERRI REGIMBAL: Yes, that standard 21 wasn't in place in 1990, but, I mean, obviously without 22 knowing what was in the reports, it would have been a 23 little premature to indicate that they may affect my 24 assessment of the case. I mean, my overall assessment of 25 the case.
1591 I -- I can certainly say that had I 2 received all of the reports in advance, it would most 3 definitely of -- have affected my approach to the 4 prosecution, and at the very least, I would have sought an 5 independent opinion outside of the Hospital for Sick 6 Children. 7 I would have sent the reports to the 8 experts and said, What about this? They seem to be saying 9 that there was a linear fracture. They seem to be saying 10 there's subgaleal bruising. They seem to be saying 11 children can die from small falls. 12 You know, is -- what is your response to 13 this? And I would have at least -- at the very least, 14 sought an opinion from an external expert -- maybe more 15 than one (1). 16 I would have also hoped to have had the 17 opportunity to speak with people like Dr. Leetsma, Dr. 18 Horsham, Dr. Ferguson; sat down with them and said, Okay, 19 I've got your report. What information did you have when 20 you came to this report? Did you have all the 21 information? Here's all the information. Are you going 22 to come to the same report? 23 I mean, I may very well have satisfied 24 myself on the basis of all of that that there could have 25 been a reasonable doubt even despite the fact that I had a
1601 lot of other corollary evidence that I felt was fairly 2 cogent for His Honour to -- to consider in assessing the 3 entire case from start to finish. 4 So you're right. I don't mention 5 reasonable prospect of conviction. It wasn't a standard 6 that was in place at that time. I didn't have a clue what 7 was going to be in those reports, but I absolutely would 8 have considered them, and if it affected assessment of 9 whether or not the case ought to be prosecuted, I 10 certainly would have taken action on that. 11 MR. MARA GREENE: While you don't use the 12 term, "reasonable prospect of conviction", you indicate 13 didn't occur -- didn't exist at the time, you also don't 14 make any reference of using this material to assess the 15 merits of your case. 16 MS. TERRI REGIMBAL: Well, how could I 17 have without knowing what on earth was going to be 18 contained in it? I don't want to give any sense of false 19 hope or -- or promises. I -- if I'd had a sense of -- of 20 the reputations of the people involved, the content of 21 their evidence, I might have chosen to use that. 22 You know, Mr. Renaud and I had a very good 23 relationship up to this case. I -- I'm sure that he would 24 have described me as an extremely reasonable Crown. I was 25 not known to be someone who was just head down and -- and
1611 into the traces, go forward. I would have hoped that our 2 relationship would have lead him to know that about me in 3 any event. 4 MR. MARA GREENE: You then proceeded with 5 the trial, and at the trial the experts for the defence 6 did, in fact, testify? And after hearing their testimony 7 you still did not change your opinion on whether or not to 8 continue proceeding with the case? 9 And in fact, took it -- the case to 10 conclusion and argued for a conviction? 11 MS. TERRI REGIMBAL: Yes, that's right. 12 And I think I outlined yesterday some of my reasoning for 13 that. It was perfectly open to Justice Dunn to accept the 14 evidence of the doctors from the Hospital for Sick 15 Children. They were just as preeminent as the experts who 16 testified on behalf of the defence. 17 And in addition, I had other evidence that 18 I felt, should Judge Dunn consider it the same way I 19 suggested in my submissions, could have affected his 20 assessment of the entire case. And that was what, to me, 21 appeared to be five (5) fairly inconsistent descriptions 22 of Amber's fall down the stairs. 23 And I think it was -- I'm sure any trial 24 counsel here would agree that where you would have five 25 (5) different versions of a significant event, it would
1621 cause you to cross-examine on it and to urge the trier of 2 the fact to consider that a changing story in criminal 3 matters is often seen to be reflective of prevarication 4 and that the badge of truth is it never changes. 5 I mean, we've all said that, I'm sure, in 6 many trial matters that we've prosecuted. I did have, as 7 I indicated before, other factors. The baby was sick. It 8 was teething. 9 According to my evidence, which I've 10 accepted, she was up till 3:00 -- the babysitting was up 11 till 3:30, not very much sleep. The evidence was the 12 child was afraid of the stairs, which flew directly in the 13 face of some of the accounts that the child pushed the 14 babysitters hand away and Amber launched herself down the 15 stairs. 16 So there were other factors as well. And 17 as I mentioned earlier, many of these experts didn't 18 receive all of the information, they didn't have all of 19 the transcripts, they only reviewed selected portions, 20 and you -- you would see from some of the cross- 21 examinations that a number of them softened their position 22 in cross-examination. 23 And what is of some significance as well 24 today, just as it was back then, that a number of the 25 experts like Dr. Leetsma, like Dr. Ferguson, like some of
1631 -- maybe -- Dr. Horsham, they -- they didn't say this is 2 not a case of Shaken Baby Syndrome. They said this -- 3 this could be a case of Shaken Baby Syndrome, but it could 4 be a fall. All right. 5 And so I -- and I've excluded from that 6 comment obviously the doctors from the Hospital of 7 Philadelphia, because you know, they had a certain 8 perspective based on their own studies, but there -- there 9 was inconsistency about that. Even the defence experts 10 like Dr. Leetsma, he could not accept Dr. Duhaime's 11 position. 12 MS. MARA GREENE: I'm sorry. And just 13 before the lunch break, I'll just ask one (1) question -- 14 MS. TERRI REGIMBAL: Sorry. 15 MS. MARA GREENE: -- following-up from 16 that, which is: Would you then agree with the proposition 17 that reciprocal disclosure best enables you to address 18 reasonable prospect of conviction where your case is 19 largely dependent upon the pathology and not on other 20 circumstantial evidence? 21 MS. TERRI REGIMBAL: No, I don't agree 22 with that, because I think that if I was given those 23 experts reports in 2008, even though I had five (5) 24 inconsistent -- what I perceived as inconsistent 25 statements, knowing what the medical literature is now
1641 about falls, it's quite possible I would not have 2 proceeded with the case. 3 MS. MARA GREENE: Thank you. On that 4 note, we've got a lunch break. 5 COMMISSIONER STEPHEN GOUDGE: We'll rise 6 then until five (5) past 2:00. 7 8 --- Upon recessing at 12:44 p.m. 9 --- Upon resuming at 2:07 p.m. 10 11 THE REGISTRAR: All rise. Please be 12 seated. 13 COMMISSIONER STEPHEN GOUDGE: Ms. 14 Greene...? 15 16 CONTINUED BY MS. MARA GREENE: 17 MS. MARA GREENE: Good afternoon. We've 18 heard evidence, and we've seen some materials to suggest 19 that the defence pathologist is not usually in as good as 20 a position as the Crown pathologist to give an opinion, 21 because they are rarely able to attend the original 22 autopsy. 23 Do you agree with that statement? I'll 24 start with Mr. Gilkinson. 25 MR. BRIAN GILKINSON: I don't know. I
1651 would assume there's a natural advantage to being 2 present, but I also know that other pathologists have re- 3 examined cases with the record and come to their own 4 conclusions. I assume there's an advantage of being 5 present though. 6 MS. MARA GREENE: Mr. Bradley, do you 7 have a position on that? 8 MR. EDWARD BRADLEY: I agree with Mr. 9 Gilkinson's response that I assume being present does 10 provide some advantage. But in most autopsies, 11 especially if there are head injuries involved, there are 12 slides and there are good photographs that are kept and 13 you know, so, as much as that may assist, that's 14 available. 15 MS. MARA GREENE: Well let me then take 16 this the next step. Do you think it's appropriate or 17 fair for the Crown counsel to cross-examine the defence 18 pathologist and suggest that he or she, or that his or 19 her opinion is not as good as the Crown pathologist's 20 opinion because they weren't at the autopsy? 21 MR. BRIAN GILKINSON: No, I think it's 22 fair to ask whether or not an absence from an autopsy 23 would in any way affect the validity of the opinion, and 24 let the pathologist ask that. But I don't think it's 25 necessarily the case that a Crown would necessarily
1661 suggest that their opinion should be discounted because 2 they simply weren't there. 3 It's for the pathologist to determine 4 whether or not that affected the -- his opinion and his - 5 - and his validity. 6 MS. MARA GREENE: And sorry, Ms. 7 Regimbal, I've not asked you this question yet. 8 MS. TERRI REGIMBAL: Well I think -- I 9 agree with what Mr. Gilkinson said, and in the Amber 10 case, I think it was an example of where there was some 11 disagreement over interpretations that could be placed on 12 photographs versus what Dr. Smith testified. 13 And one (1) example would have been that 14 some medical experts for the defence thought they might 15 see a linear fracture. Whereas, Dr. Smith said, Well, I 16 was there and there was no linear fracture. There were 17 CT scans as well, that showed no linear fracture. 18 But that might be an example of where, 19 yes, certainly there was a difference of opinion, it was 20 based on a photograph, and yes, you might wish to cross- 21 examine on that, the fact they weren't there, they didn't 22 see it. 23 But I think every case again, will -- will 24 rise or fall, or this issue will rise or fall on the 25 specifics of the case, and what's being testified to, and
1671 what was necessary to come to their conclusion. 2 MS. MARA GREENE: Now, I know you may not 3 have an answer to this. I'm just going to put this out 4 there anyways. 5 In the situation where you're talking 6 about where there appears to be an advantage from having 7 been at the autopsy, can you think of any mechanism in 8 which you can level the playing field at a trial? 9 MS. TERRI REGIMBAL: Well I think 10 excellent photo taking is something that can level the 11 playing field. In that case there weren't very many 12 photos taken. I think it was a little bit earlier. 13 I know nowadays when I have an autopsy, 14 I'm gonna get about two hundred (200) photos and very 15 good lighting, very professionally done. Hopefully, that 16 would go a great distance to balancing the playing field 17 as you say. 18 Complete access to any microscopic slides 19 or any information. I also think that we go back what's 20 been discussed of the two (2) experts speaking, and 21 having sort of a think tank together about: Well, what 22 about this? Did you do that? You know, I did this, did 23 you do that? 24 I think we've -- there have been some 25 suggestion of a thought of a meeting between the ex --
1681 the defence experts and the Crown and the defence, as 2 being some sort of possibility being looked at. And I 3 think that could go a long way to balancing the playing 4 field as well. That way if there were any issues from 5 non-attendance, they might be able to be dealt with like 6 that in advance of the trial. 7 MS. MARA GREENE: Mr. Bradley, do you 8 have any thoughts on how you'd playing -- level the 9 playing field in the circumstance Ms. Regimbal explained? 10 MR. EDWARD BRADLEY: I agree if you have 11 very good quality photographs that were taken -- and in 12 the Reynolds case, there was probably a couple of hundred 13 photographs that were taken. And certainly when I spoke 14 to Dr. Ferris, who was the defence pathologist in that 15 case, he never suggested that he had any difficulty 16 arriving at his decision because he wasn't present at the 17 initial autopsy. 18 MS. MARA GREENE: Thank you. And, Mr. 19 Gilkinson, do you have anything to add to that? 20 MR. BRIAN GILKINSON: I just think that 21 if there's a protocol for the autopsy to be as 22 comprehensive as possible, in terms of photographs, 23 microscopic analysis, histology, the x-rays that could be 24 taken with respect to whether or not there were linear 25 fractures available, if you can do everything you can to
1691 preserve the record to the point where you shouldn't need 2 a second look at the body itself, hopefully it would -- 3 it would produce a volume of evidence that -- that 4 defence counsel and defence experts can access with 5 nothing left out that would suggest there was any 6 advantage. 7 In terms of whether or not I assume that 8 there's a levelling of the playing field, I don't know 9 whether or not it's been established that a defence 10 expert's opinion is any less valid because he wasn't 11 there. 12 I -- I'm not certain that that's 13 necessarily an established fact that he needs to be there 14 if the record's adequate. 15 MS. MARA GREENE: Thank you. Now, Ms. 16 Regimbal, this line of question is specifically for you, 17 and it relates to a question -- to an answer -- or a 18 couple of answers you gave yesterday and in part I think 19 this morning. 20 You had testified that one (1) of the 21 benefits of having -- in the SM case, if you had had the 22 defence expert's information or reports prior to them 23 testifying, it would have allowed you to explore certain 24 issues to had to explore during the course of the trial. 25 And you gave a number of examples and one (1) -- and a
1701 lot of the examples related to what information the 2 defence counsel had given to the defence expert. 3 MS. TERRI REGIMBAL: Yes. 4 MS. MARA GREENE: And one (1) of the 5 information components that you testified to yesterday 6 was the fact that the person charged had given three (3) 7 or four (4) inconsistent statements. 8 MS. TERRI REGIMBAL: Yes. 9 MS. MARA GREENE: Do you recall giving 10 that evidence? 11 MS. TERRI REGIMBAL: Yes. 12 MS. MARA GREENE: And the experts that 13 you were talking about, that that would be relevant too, 14 what kind of experts were they? 15 MS. TERRI REGIMBAL: The experts that 16 were called on behalf of the defence -- 17 MS. MARA GREENE: No. 18 MS. TERRI REGIMBAL: -- there was -- 19 MS. MARA GREENE: Specifically -- 20 MS. TERRI REGIMBAL: Oh, sorry. 21 MS. MARA GREENE: You asked -- you 22 testified that you had asked some experts whether or not 23 they had been told that the person charged had given 24 inconsistent statements, and I want to know what -- do 25 you ask that of all the experts or was it a certain kind
1711 of experts you asked that question of? 2 MS. TERRI REGIMBAL: Well, that would 3 depend because generally Mr. Renaud was asking them in- 4 chief: Does it -- you know, does it bother you that 5 there may be slightly -- slight variances on the story 6 given by the babysitter? 7 So often it would be something that had 8 been partly raised in-chief, that I would explore further 9 in cross-examination by aligning them and asking, you 10 know, is this possible? 11 I know we had a great deal of examination- 12 in-chief and cross-examination about whether some of the 13 scenarios were actually biomechanically possible to have 14 occurred. So I would think most experts were asked that 15 question, both in-chief and cross-examination or at least 16 in cross-examination and re-examination, but I think the 17 majority would have been asked in both, in-chief and in 18 cross-examination. 19 MS. MARA GREENE: So it wasn't raised by 20 you; it had been already raised by defence counsel -- 21 MS. TERRI REGIMBAL: In -- 22 MS. MARA GREENE: -- is that by and 23 large -- 24 MS. TERRI REGIMBAL: -- in many cases it 25 had been because I think by the time that the defence
1721 witnesses started to testify it was clear that these 2 statements were out there and that this was inconsistency 3 of -- of the history was something that I think had been 4 raised by some of the Crown experts as either something 5 that supports an accidental finding versus something that 6 might raise a red flag -- inconsistent statements. 7 MS. MARA GREENE: So, particularly, did 8 pathologists testify about the effect of the inconsistent 9 statements on their patholo -- their findings as a 10 pathologist? 11 MS. TERRI REGIMBAL: No, actually, I 12 think Mr. Renaud often asked them if inconsistent 13 histories troubled them, because a number of them said it 14 didn't trouble them at all, and that they found that they 15 -- all that mattered to them that there was -- there was 16 a fall and that there was impact on the head. 17 MS. MARA GREENE: Thank you. And 18 finally, my -- my last area, and it relates to a process 19 that's already in place in relation to the CFS, and I 20 want to ask your opinion if you would like this in place 21 for pathologists, as well. 22 And I think as Crown attorneys you're all 23 aware that with the CFS now, when you complete a trial, 24 there's a form you receive from the CFS. 25 Is that your experience, that you be
1731 allowed to comment on their testimony and their work on 2 that case? 3 MR. BRIAN GILKINSON: There certainly is 4 that -- 5 MR. EDWARD BRADLEY: Yeah. 6 MR. BRIAN GILKINSON: -- protocol with 7 the C -- CFS, yes. 8 MR. EDWARD BRADLEY: I think in serious 9 charges, we do get that form, but, you know -- sorry, if 10 we -- if we call a witness at your basic impaired case, 11 I'm not sure we get a form for that. But I definitely 12 remember getting forms and I have completed them when the 13 charges are certainly crimes of violence and, you know, 14 assault, bodily harms, attempted murders. Yeah. 15 MS. MARA GREENE: And do you think that 16 if such a form was put in place for pathologists, would 17 be a good way of notifying the Chief Coroner or the Chief 18 Pathologist of how the witness did and how the expert 19 testified? 20 MR. BRIAN GILKINSON: I don't -- I really 21 would have a bit of a problem with that, simply because 22 again, that kind of -- if in fact something happens 23 that's -- that's clearly -- to any layperson, including 24 the Crown -- was something of deficiency in the expert's 25 evidence, either in not observing due limits or in flip-
1741 flopping and -- and not apparently being able to -- to 2 give his evidence or state an opinion clearly, that's 3 going to raise red flags, that, under the initiatives, 4 will be reported up the line internally within the 5 Ministry. 6 But to send out forms for every time an 7 expert testifies, in particular a pathologist, I don't 8 know if we necessarily have a sufficient understanding to 9 speak to all of the complexities and expertise involved 10 in giving a particular opinion. So I'd want to see the 11 form. 12 I'd want to see some examination of how it 13 would apply or what kinds of things would be asked of a 14 Crown, in terms of assessing what an expert does with his 15 opinion. Some things are beyond our limits. 16 MS. MARA GREENE: What -- what if the 17 form was limited to: Did the expert speak in terminology 18 that was readily understandable? Did the expert give 19 balanced testimony? Did the expert meet with you when 20 requested? 21 So the kinds of stuff that a lay person 22 could assess. 23 MR. BRIAN GILKINSON: Well, I'm certainly 24 willing to see the Ministry examine those kinds of -- 25 kinds of issues and I'm more than happy to -- to hear
1751 what comes out of those examinations. 2 I don't know if you're getting a lot of 3 bang for the buck in -- in sending out these forms, time 4 and time again, with respect to experts that testify in 5 the same manner with respect to their terminology or 6 whatever. I'm not worrying about trees (phonetic) but 7 I'm worried about whether or not that's an initiative 8 that is really going to advance anything in a -- in a 9 concrete or significant fashion. 10 I think we really need to focus -- I 11 think, personally, we really need to focus on those areas 12 where we're concerned that the opinion or the competence 13 of the individual may have played a role in misleading 14 either the police or the Crown or the court, and trying 15 to get back internally and report on -- on those issues 16 and have them addressed. 17 I'm not discounting what you're saying, I 18 just want to see a little bit more detail before I could 19 answer you. 20 MS. MARA GREENE: Thank you. 21 Mr. Bradley...? 22 MR. EDWARD BRADLEY: I'll -- I'll save 23 you the time and say that I -- I agree with what Mr. 24 Gilkinson has said. 25 I think it's important that we be
1761 judicious in the, I guess, critical sense, not the -- not 2 necessarily if the judge made sense. If we are going to 3 use forms on a regular basis for almost every type of 4 scientific expert, I think we have to be very careful 5 that we don't over-paper somebody because I -- I think 6 you can create a problem if you over-paper organizations. 7 They just get swamped by the paper and it doesn't really 8 have the significance as it would if it's done in a more 9 appropriate situation where something significant has 10 happened. 11 MS. MARA GREENE: And, Ms. Regimbal? 12 MS. TERRI REGIMBAL: I don't really have 13 anything to add to those comments. 14 MS. MARA GREENE: Thank you. I have no 15 further questions. Thank you for your time. 16 MR. BRIAN GILKINSON: Thank you. 17 MR. EDWARD BRADLEY: You're welcome. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, 19 Ms. Greene. 20 Ms. Esmonde...? 21 22 CROSS-EXAMINATION BY MS. JACKIE ESMONDE: 23 MS. JACKIE ESMONDE: Good afternoon. 24 MR. EDWARD BRADLEY: Good afternoon. 25 MR. BRIAN GILKINSON: Good afternoon.
1771 MS. JACKIE ESMONDE: My name is Jackie 2 Esmonde, I'm one (1) of the lawyers here representing a 3 coalition of Aboriginal Legal Services of Toronto and the 4 Nishnawbe-Aski Nation. 5 Aboriginal Legal Services of Toronto, if 6 you're not familiar with -- with the services it 7 provides, it's a multi-service Aboriginal legal service 8 agency. It provides services to Aboriginal people across 9 the Province. 10 And Nishnawbe Aski-Nation is a political 11 organization. It represents forty-nine (49) First Nation 12 communities in Northern Ontario. 13 And I'm going to direct most of my 14 questions to you, Mr. Gilkinson, given your presence on 15 the committee that was established with respect to this 16 Inquiry. But I -- I will have some questions for Mr. 17 Bradley and Ms. Regimbal as well. 18 Now, to begin am I -- am I correct that as 19 a Crown for -- for a number of years you've had the 20 opportunity to have some education with respect to issues 21 affecting Aboriginal people and the criminal justice 22 system? 23 MR. BRIAN GILKINSON: Yes. 24 MS. JACKIE ESMONDE: And for Mr. Bradley 25 and Ms. Regimbal, you have as well?
1781 MS. TERRI REGIMBAL: Yes. 2 MR. EDWARD BRADLEY: Yes, yes. 3 MS. JACKIE ESMONDE: And you are familiar 4 -- I -- I take it that there have been a number of 5 studies over the past number of years with respect to 6 Aboriginal repre -- over-representation in the criminal 7 justice system? 8 MR. BRIAN GILKINSON: I am. 9 MS. TERRI REGIMBAL: Yes. 10 MR. EDWARD BRADLEY: Yes. 11 MS. JACKIE ESMONDE: That's not something 12 that's unfamiliar to you. 13 You're aware, I take it, that this over- 14 representation is something that affects every stage of 15 the criminal justice system from charging to sentencing? 16 MR. BRIAN GILKINSON: That's my 17 understanding. 18 MS. JACKIE ESMONDE: Yes. That 19 Aboriginal persons are charged in numbers that are 20 greater than their proportion of the population? 21 MR. BRIAN GILKINSON: That's my 22 understanding. 23 MS. JACKIE ESMONDE: And they are charged 24 with more offences when they are charged? 25 MR. BRIAN GILKINSON: I'll accept that.
1791 MS. JACKIE ESMONDE: Are you aware, as 2 well, on the other hand, the -- on the opposite end of 3 the spectrum, while we're speaking of what could perhaps 4 could be called over-policing, there's also an issue of 5 under-policing in some Aboriginal communities. 6 Ms. Regimbal, you -- you mentioned 7 yesterday that in your experience in Northern Ontario 8 there are some communities that have smaller police 9 forces, that have fewer resources than the OPP, for 10 example? 11 MS. TERRI REGIMBAL: Yes, that's correct. 12 MS. JACKIE ESMONDE: And that the 13 availability of well-resourced police service is 14 something that of course assists in quality death 15 investigations? 16 MS. TERRI REGIMBAL: My experience would 17 be that municipal forces often do and are encouraged to 18 draw on the resources of the Ontario Provincial Police, 19 up in the northeastern -- 20 MS. JACKIE ESMONDE: Yes. 21 MS. TERRI REGIMBAL: -- part of the 22 Province. I know that my small municipal force had a 23 homicide and that's exactly what they did, is they asked 24 the OPP to come in and assist and that's exactly what the 25 OPP did. And I know that's happened several occasions in
1801 Timmins as well. 2 MS. JACKIE ESMONDE: Okay. Now, apart 3 from issues of resources, which you've -- you've just 4 addressed, would you agree with me that some of the 5 reports and studies that have taken place over the number 6 of years have identified an issue of systemic 7 discrimination; that is one (1) of the factors that has 8 lead to the over-representation of Aboriginal people in 9 the criminal justice system? 10 MR. BRIAN GILKINSON: I understand that, 11 but I wouldn't able to point to any particular study. If 12 you wanted to assist me, that's -- that's fine, but I'll 13 accept the overall premise. 14 MS. JACKIE ESMONDE: Okay. I -- I did 15 provide some notice with respect to a number of studies 16 and reports that you may have in the binder. I don't 17 know if you had an opportunity to review any of those. 18 MR. BRIAN GILKINSON: Very briefly. 19 MS. JACKIE ESMONDE: Very briefly. 20 MR. BRIAN GILKINSON: We got them last 21 night. 22 MS. JACKIE ESMONDE: Okay. But you 23 accept as a basic premise? 24 MR. BRIAN GILKINSON: Yes, yes. 25 MS. JACKIE ESMONDE: And I take it, given
1811 that you're aware of this background when you as a Crown 2 attorney are faced with a file involving an Aboriginal 3 accused, these are some of the factors that -- that raise 4 red flags for you when you're dealing with an Aboriginal 5 accused person? 6 MR. BRIAN GILKINSON: They're 7 considerations. 8 MS. JACKIE ESMONDE: And in fact, the 9 Crown policy manual does have an Aboriginal justice 10 policy? 11 MR. BRIAN GILKINSON: That is correct. 12 MS. JACKIE ESMONDE: Perhaps we could -- 13 if I could get that pulled up on that screen. I gave 14 notice on this. This is PFP030216 and I believe it would 15 be in your Tab 11, if you need to take a look at it. 16 Now, you said yesterday, Mr. Gilkinson, 17 that you will not profess to have 100 percent knowledge 18 of the Crown policy manual, but you aware of this policy, 19 I take it? 20 MR. BRIAN GILKINSON: Well, I'm aware of 21 most of them. Whether or not I'm aware of every bit of 22 the content is -- 23 MS. JACKIE ESMONDE: Okay. 24 MR. BRIAN GILKINSON: -- is the -- is the 25 issue.
1821 MS. JACKIE ESMONDE: Well, but -- 2 MR. BRIAN GILKINSON: I -- I'm certainly 3 aware of this. 4 MS. JACKIE ESMONDE: Okay. Are you able 5 to agree with me that this is a policy that addresses 6 mainly issues of sentencing in Aboriginal offenders? 7 MR. BRIAN GILKINSON: Yes. 8 MS. JACKIE ESMONDE: And that it is 9 reflective of Criminal Code provisions and a Supreme 10 Court of Canada case, Gladue, that requires courts to 11 consider the background of Aboriginal offenders in 12 sentencing? 13 MR. BRIAN GILKINSON: Correct. 14 MS. JACKIE ESMONDE: You'd agree with me 15 that there's no policy at the front end of the criminal 16 justice process; that is in terms of Aboriginal people 17 and charge screening, just as an example. 18 MR. BRIAN GILKINSON: That is -- that is 19 correct. 20 MS. JACKIE ESMONDE: The charge screening 21 policy in the Crown police manual addresses screening a 22 post-charge? 23 MR. BRIAN GILKINSON: That is correct. 24 MS. JACKIE ESMONDE: Yes. And the 25 principles that it relies on when you make a
1831 determination about whether to withdraw a charge, there 2 are two (2), right? There are -- 3 MR. BRIAN GILKINSON: Reasonable prospect 4 of conviction and public interest. 5 MS. JACKIE ESMONDE: Yes. And that 6 policy makes no reference to Aboriginal people and the 7 systemic factors that may affect the in the criminal 8 justice system? 9 MR. BRIAN GILKINSON: And there's no 10 direction with respect to how that would be -- how that 11 would be applied. And with respect to pre-charge 12 screening, again, that's a situation that doesn't exist-- 13 MS. JACKIE ESMONDE: Yes. 14 MR. BRIAN GILKINSON: -- in this 15 province, and it's an encouragement of the initiatives 16 with respect to this focus that we encourage the police, 17 with respect to this area, to engage in pre-start -- pre- 18 charge screening with the Crown. 19 MS. JACKIE ESMONDE: Yes. I was 20 interested in that aspect of the document that you showed 21 us yesterday. It's -- it's phrased as an encouragement 22 of pre-charge screening. 23 MR. BRIAN GILKINSON: I think that's 24 about the only way it could be phrased, at this point in 25 time. There's nothing in law or -- or practice to
1841 mandate that the police have to engage in it, and that's 2 not part of the normal relationship in terms of what the 3 police are responsible for and what the Crown's office is 4 responsible for. 5 MS. JACKIE ESMONDE: Yes, at this time? 6 MR. BRIAN GILKINSON: Correct. 7 MS. TERRI REGIMBAL: Could I add -- if I 8 might just -- 9 MS. JACKIE ESMONDE: Yes, please. 10 MS. TERRI REGIMBAL: -- interject? 11 Coming from the North Region, we actually do have two (2) 12 projects that are ongoing involving pre-charge screening 13 in Aboriginal communities in Kenora and Gore Bay. 14 MS. JACKIE ESMONDE: Okay. Could you -- 15 MR. EDWARD BRADLEY: I might also 16 indicate too, that in my area we have from time to time, 17 Aboriginal youth who get into difficulty with the law 18 from Tyendinaga Mohawk Territory, and they have a justice 19 circle. 20 Once again, this deals with after the 21 charge is laid, but in certain charges I've agreed to 22 divert them and let the justice circle deal with -- with 23 them. And I've worked closely with Mary Ann Spencer 24 who's in charge of that justice circle. 25 MS. TERRI REGIMBAL: We have that option
1851 as well, in my district, that we are -- at the youth 2 level, are involved with Aboriginal restorative justice 3 circles for Aboriginal young offenders. 4 MS. JACKIE ESMONDE: Okay. Of course the 5 thrust of my questions is not to say there are no 6 initiatives in the criminal justice system to address 7 Aboriginal offenders, but I am interested in -- so the 8 very -- the beginning end of the spectrum, which is why 9 my questions were addressed to the charge screening 10 aspect. 11 And so I'm interested, Ms. Regimbal, if I 12 could get a little bit more detail on the time I have 13 left -- 14 MS. TERRI REGIMBAL: I'll give you what I 15 have. 16 MS. JACKIE ESMONDE: -- which isn't very 17 much. But you said there are two (2) pilot projects -- 18 MS. TERRI REGIMBAL: Yes. 19 MS. JACKIE ESMONDE: -- and that is in 20 Kenora and Gore Bay. Could you -- is there any other 21 information you can provide me, just briefly about -- 22 MS. TERRI REGIMBAL: Well there are two 23 (2) dedicated -- 24 MS. JACKIE ESMONDE: -- those projects. 25 MS. TERRI REGIMBAL: -- Crowns working --
1861 MS. JACKIE ESMONDE: Mm-hm. 2 MS. TERRI REGIMBAL: -- with the 3 Aboriginal forces out of the Kenora and Dryden offices, 4 and they are indeed involved in pre-charge screening. 5 And they are working closely with the police to screen 6 charges, to consider issues of diversion, to educate, to 7 give enhanced education, as well opportunities to the 8 Aboriginal services. 9 And also in Gore Bay there's a dedicated 10 Crown who again, is working with the Aboriginal policing 11 forces in the now Manitoulin Island, doing the same 12 thing. 13 MS. JACKIE ESMONDE: And how long have 14 these projects been in place? 15 MS. TERRI REGIMBAL: They were just put 16 in place, and I'm going -- a rough approximate date of -- 17 I think these started up in November, the beginning of 18 November of 2007. 19 MS. JACKIE ESMONDE: And when are the 20 projects anticipated to end and some evaluation to take 21 place? 22 MS. TERRI REGIMBAL: Yeah, I -- I can't 23 answer when they're going to end. Obviously our hope -- 24 some of our hope would be that they wouldn't end. Some 25 of our hope would be that they would be successful, that
1871 funding would be continued, and that the projects would 2 be expanded to other appropriate areas. 3 MS. JACKIE ESMONDE: Okay. I just wanted 4 to -- 5 MS. TERRI REGIMBAL: But right now it's - 6 - you know, I'm not familiar enough with the funding 7 details. I don't know what stage the funding -- I'm not 8 involved in that particular project. All I know is those 9 projects are up and running and certainly we're hopeful 10 they'll be extended. 11 MR. EDWARD BRADLEY: Just in that regard 12 as well, about this time last year I spent a year in 13 Cornwall and Akwesasne. It was a program run by the 14 Aboriginal group the you indicated from Toronto and there 15 were a number of Crowns that the -- our Ministry sent to 16 -- to that week long session, who had fairly regular 17 dealings with Aboriginal communities, and that was to 18 heighten our sensitivity to issues surrounding Aboriginal 19 matters and the justice system. 20 MS. JACKIE ESMONDE: And if I could just 21 ask one (1) final question. Thank you, Commissioner, for 22 your indulgence. 23 But, Ms. Regimbal, I understand the 24 projects you've described are very -- very early in their 25 -- their process, are -- are you able to assist us at all
1881 with respect to the experience with that project thus 2 far, whether it's been a helpful project? 3 MS. TERRI REGIMBAL: No, I -- I haven't 4 seen any reports on it, I just know anecdotally that the 5 Crowns who were involved in those projects are very 6 committed to them and that the Criminal Law Division does 7 have a relatively new portfolio of Aboriginal justice 8 issues, and part of their mandate is to explore this type 9 of pilot project. 10 MS. JACKIE ESMONDE: Okay. Thank you 11 very much. Thank you. 12 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 13 Esmonde. 14 Ms. Fraser...? 15 16 CROSS-EXAMINATION BY MS. SUZAN FRASER: 17 MS. SUZAN FRASER: Thank you, Mr. 18 Commissioner. Ms. Regimbal and Mr. Bradley, Mr. 19 Gilkinson, my name is Sue Fraser and I am here on behalf 20 of an organization called Defence for Children 21 International, which is an international grass roots 22 organization for the promotion of children's rights, 23 which was founded in Geneva in 1979, and there's a 24 Canadian chapter, which is -- has standing at this 25 Inquiry.
1891 Mr. Gilkinson, just -- you mentioned in 2 reference to Crown policy, you said it's on my laptop, 3 it's on everybody's laptop, and I took it that you're 4 referring to sort of a government issued laptop that 5 comes equipped with the Crown policy. 6 Am I -- 7 MR. BRIAN GILKINSON: No, it's the fact 8 that you can -- so you found -- you've discovered my lack 9 of technological expertise, but if you go on to my laptop 10 or any laptop -- 11 MS. SUZAN FRASER: Yeah. 12 MR. BRIAN GILKINSON: -- you can access 13 the CLD Net we -- website and you can read anything you 14 want with respect to Crown policy. 15 MS. SUZAN FRASER: All right. 16 COMMISSIONER STEPHEN GOUDGE: It's not 17 your screen saver, I take it? 18 MR. BRIAN GILKINSON: No, it's -- no, 19 it's not, I'm sorry. 20 MS. SUZAN FRASER: Okay. 21 MR. BRIAN GILKINSON: And I don't read it 22 before I go to bed at night. 23 24 CONTINUED BY MS. SUZAN FRASER: 25 MS. SUZAN FRASER: But certainly it's
1901 part of what you do, it's part of what you practice, and 2 it's important to the work that you do, I take it? 3 MR. BRIAN GILKINSON: Well, it is, it is, 4 and you try and access it as much as possible, in 5 particular, if you're facing a particular issue and 6 you're -- and you know you need some assistance and 7 guidance. 8 MS. SUZAN FRASER: All right. 9 MR. BRIAN GILKINSON: But I'm not it's 10 something that you access necessarily on a daily basis. 11 MS. SUZAN FRASER: All right. I have -- 12 I have some questions for you all about the interplay 13 between the criminal justice proceedings and the Child 14 and Family Services Act, and I take it that you all know 15 that there is a piece of legislation called the Child and 16 Family Services Act. 17 MR. BRIAN GILKINSON: Correct. 18 MR. EDWARD BRADLEY: Correct. 19 MS. SUZAN FRASER: All right, you're all 20 nodding your head and you're agreeing, that's good. 21 And I'll start with Mr. Gilkinson. You're 22 aware -- and I wonder if you're aware that there is a 23 policy or principle set out in the Child and Family 24 Services Act that there be early decision making with 25 respect to child protection and child welfare matters.
1911 Is that your -- do you -- do you know 2 that? 3 MR. BRIAN GILKINSON: That's my 4 understanding. 5 MS. SUZAN FRASER: All right. And is 6 that something that you learn through practice or 7 something that you've received education on? 8 MR. BRIAN GILKINSON: I received 9 education, and particularly with respect to Section 72 of 10 the Act in our local Child Abuse Review Team conference. 11 MS. SUZAN FRASER: All right. And is 12 that something -- was there education offered on the 13 Child and Family Services Act at the Crown schools 14 offered in London, Ontario? 15 MR. BRIAN GILKINSON: People from the OCA 16 -- or excuse me, the Ontario Crown Attorneys Association 17 educational wing would be able to tell you whether or not 18 there is at this particular moment, but I believe there 19 is a course with respect to child abuse issues. 20 MS. SUZAN FRASER: All right. And -- 21 and, Mr. Bradley and Ms. Regimbal, have you taken that 22 course or participated in a course involving the Child 23 and Family Services Act? 24 MR. EDWARD BRADLEY: I've been around 25 long enough that I've taken most of the courses a couple
1921 of times. The one (1) course that I think it's involved 2 as part of the course, there's a sexual assault course -- 3 MS. SUZAN FRASER: Yeah. 4 MR. EDWARD BRADLEY: -- and that's part 5 of the -- the sexual assault course, at least that's my 6 recollection. The other thing we have in my jurisdiction 7 is we signed a protocol with Family and Children's 8 Services, as they're called in Lennox and Addington, the 9 police, probation, and victim witness, and I'm probably 10 missing somebody, but there's a written protocol that we 11 signed where we would agree that within certain limits we 12 would exchange information when it comes to child 13 protection issues. 14 MS. SUZAN FRASER: All right. All right. 15 And that's something that was of the -- of your office's 16 own initiative, I take it, or the -- the interested 17 parties or stakeholders within -- 18 MR. EDWARD BRADLEY: Well, it was a joint 19 initiative of -- of Family and Children's Services, my 20 office, the police, yes. 21 MS. SUZAN FRASER: All right. And of 22 course, you may be aware -- and I think the Commissioner 23 will hear this through its policy roundtables -- that 24 there is an object of early decision-making and 25 permanency planning and that there's actually statutory
1931 time limits for when there should be a permanent 2 placement of a child who is the subject of a child 3 welfare proceeding. 4 Are you aware of those statutory time 5 limits and just -- 6 MR. BRIAN GILKINSON: I am not, no. 7 MS. SUZAN FRASER: You're not. All 8 right. So you would not know, Mr. Gilkinson, that there 9 is a mandated permanent placement for somebody who's 10 under the age of six (6) years to happen within twelve 11 (12) months, and when they're over six (6) years that 12 there would be -- the statute would mandate that there 13 would be a placement within two (2) years? 14 MR. BRIAN GILKINSON: I didn't -- I 15 wasn't aware of the time limits. 16 MS. SUZAN FRASER: All right. And -- 17 MR. EDWARD BRADLEY: Once again, just in 18 my area, and I don't want to -- 19 MS. SUZAN FRASER: Yeah. 20 MR. EDWARD BRADLEY: -- cut your time too 21 much, but -- 22 MS. SUZAN FRASER: That's all right. 23 MR. EDWARD BRADLEY: -- I wasn't aware of 24 the time limits either. But if we have a crime of 25 violence, even if it's a domestic violence situation
1941 where children are involved, it's a requirement that the 2 police officers in my jurisdiction note at the bottom of 3 the occurrence report or the synopsis whether or not 4 Children's Aid have been contacted, because they're 5 obligated to. 6 If they haven't, then I personally or 7 somebody from my office directly contacts the intake 8 worker at Family/Children Services and we usually 9 coordinate things through them. 10 MS. SUZAN FRASER: All right. And so if 11 you're now aware -- or if you accept as a premise, which 12 I hope to later be made part of these proceedings, that 13 there are these statutorial time limits, and you 14 juxtapose them with the way that the case is unfolded in 15 both the Jenna case and in the Sharon case, where Ms. 16 Reynolds had surviving children, that those certainly 17 would be, in Jenna's case -- starting with Jenna's case, 18 coming very close to those time lines, of the two (2) 19 year rule for Justine, by the time that the charge was -- 20 was finally disposed of. 21 22 MR. BRIAN GILKINSON: That's correct. 23 MS. SUZAN FRASER: All right. And 24 certainly, Mr. Bradley, your case took much longer to 25 come to a conclusion but certainly there would -- the
1951 resolution of the criminal proceeding would have taken 2 place well outside of that two (2) year outside 3 timeframe? 4 MR. EDWARD BRADLEY: Obviously, it did. 5 In fact, we were into almost three and a half (3 1/2) 6 years from the date of the death of -- of Sharon. 7 But Children's Aid in Frontenac was aware 8 from the early stages of the case and of course charges 9 were -- were initially laid within about three (3) to 10 four (4) weeks, I believe. It was within approximately a 11 month. It was I believe in July. 12 So that while the two (2) year timeframe - 13 - I'm not sure that we can adjust criminal cases in 14 fairness to -- to correspond to timelines because of the 15 Child and Family Services Act, but certainly at the early 16 stages there is communication in -- in these types of 17 situations with Children's Aid. 18 MS. SUZAN FRASER: You'll agree with me, 19 I take it, that there's both two (2) potential negative 20 outcomes for the surviving children if the two (2) 21 proceedings don't -- if there's not good exchange of 22 information. 23 The first possible negative outcome is 24 that in the case where the children really are in need of 25 protection and the parents are guilty of the offence,
1961 that they're not provided with protection at the earliest 2 opportunity. 3 That's one (1) potential negative outcome, 4 would you agree with that? 5 MR. EDWARD BRADLEY: I don't see a 6 problem with that. 7 MS. SUZAN FRASER: All right. And on the 8 other side, that a child could be placed, faced with that 9 two (2) year rule, before and adopted away from the 10 family, which has happened in at least one (1) case here, 11 before the resolution of the criminal charges. 12 MR. EDWARD BRADLEY: Or in the case of -- 13 of Sharon, there were other -- other children involved 14 and of course the case wasn't resolved within the -- I 15 don't think formal adoptions had -- had necessarily 16 occurred as a result of the criminal charges but 17 ultimately the charges were withdrawn. 18 But once again, while -- while I think we 19 want to expedite criminal cases as much as possible, I'm 20 not sure that we can do it necessarily; move a homicide 21 along and get it completed within two (2) years of the 22 date of the death. 23 For example, in my case, there was a 24 lawyer, then another lawyer replaced that original 25 lawyer, and then a junior then got replaced by another
1971 lawyer, so there were at least four (4) lawyers, three 2 (3) of which were -- were new to the case. 3 MS. SUZAN FRASER: All right. I want to 4 put some more specific to -- suggestions to you to see if 5 you think that they would be helpful. 6 Do you, Mr. Bradley, given the protocol 7 that you have out of this joint initiative, do you see 8 there being value for that to be extended throughout the 9 Province, where there's established protocol for what to 10 do, for the exchange of information when there are child 11 of -- who may be in need of protection in an ongoing 12 criminal prosecution? 13 Would that be useful to see province-wide, 14 in your view? 15 MR. EDWARD BRADLEY: Certainly the 16 protocol that I have in my jurisdiction I think would be 17 beneficial to most jurisdictions, yes. 18 MS. SUZAN FRASER: All right. And, Mr. 19 Gilkinson, can you see it being beneficial to Crowns to 20 have the kind of information both about what might be 21 going on in a concurrent and related proceeding and also 22 how your office should be expected to interact with the 23 people on -- in that concurrent proceeding? 24 MR. BRIAN GILKINSON: No, I'm content 25 with sharing relevant information with Child Protection
1981 agencies and the Children's Aid Society in particular. 2 As I said, there needs to be a balance in terms of what 3 information the Children's Aid Society needs for their 4 purposes, with respect to children who may be in need of 5 protection. 6 And indeed I take it that Children's Aid 7 Society can keep the Crown's office informed of -- of 8 what timelines are approaching, what issues are actually 9 existing in child welfare court. 10 To the extent that that information is -- 11 is relevant to the conduct of the criminal prosecution, 12 I'm happy to have it. I just share the -- the same 13 concern that it probably isn't going to be able to drive 14 the rate at which the criminal matter can be resolved. 15 And I -- I think if it's a situation where 16 child welfare court wants to access an accurate review of 17 the state of the criminal case, a protocol or -- is going 18 to have to be developed for basically informing that 19 court, not just the agency, I guess, of -- of where the 20 criminal case is at, and what the timeframe is likely to 21 be, before there's going to be a determination of those 22 issues. 23 And then if there needs to be a change in 24 the approach to the time limitations that you're talking 25 about in individual cases, then perhaps that can be
1991 accommodated on the child welfare side of things. 2 MS. SUZAN FRASER: All right. So it 3 might be the case that the statutory time limits might 4 have to be revisited in light of the fact that we can't 5 advance criminal prosecutions -- 6 MR. BRIAN GILKINSON: Well, you're not 7 speaking to an expert with respect to -- 8 MS. SUZAN FRASER: All right. 9 MR. BRIAN GILKINSON: I don't know the 10 consider -- 11 MS. SUZAN FRASER: But I -- I think 12 that's what you're proposing, is that you're saying that 13 you know, if this is the statutory timeline I can't do 14 anything -- 15 MR. BRIAN GILKINSON: I'm not proposing 16 anything. 17 MS. SUZAN FRASER: Okay. 18 MR. BRIAN GILKINSON: I'm just throwing 19 out considerations that need to be taken into account 20 before -- before protocols can be put into place. 21 MS. SUZAN FRASER: All right. So one (1) 22 -- one (1) consideration that I think you're telling me 23 you would all be in favour of would be early disclosure 24 and disclosure of relevant materials to the child 25 protection --
2001 MR. BRIAN GILKINSON: But that -- there's 2 a protocol initially, with respect to child abuse cases, 3 that they're joint investigations by the Children's Aid 4 Society and the police force, insofar as the 5 representative from the Children's Aid Society will sit 6 in on statements that are -- are being taken of -- of 7 complainants in those kinds of cases. 8 And with respect to the change of inf -- 9 the exchange of information where Children's Aid wasn't 10 initially involved, I am in favour of ensuring that they 11 have as much information from the criminal case as 12 possible that might impact on the protection concerns. 13 MS. SUZAN FRASER: All right. And just 14 on that vein, is it fair to say that in terms of -- of 15 Jenna's Case, that at no time did you tell the CAS about 16 your meeting with Dr. Ein? 17 MR. BRIAN GILKINSON: I don't recall the 18 meeting with Ms. Sullivan that is noted apparently on 19 either the 27th, 28th or 29th. I can't tell you now. I 20 can tell you there must have been some reason for the one 21 (1) line that's attributed to me and I -- and I've 22 indicated already there had to be a lot more to that 23 conversation than what was noted. I'm sorry -- 24 MS. SUZAN FRASER: All right. 25 MR. BRIAN GILKINSON: -- I can't assist
2011 you. 2 MS. SUZAN FRASER: All right. But there 3 -- there's -- you have no record that you actually 4 provided -- 5 MR. BRIAN GILKINSON: I -- I have no 6 record or notation of that -- of that contact. 7 MS. SUZAN FRASER: And -- and is it fair 8 to say that you knew that Ms. Waudby was going to have a 9 baby in early May of 1999? 10 MR. BRIAN GILKINSON: I knew that she was 11 pregnant at one point in time. 12 MS. SUZAN FRASER: Yeah. 13 MR. BRIAN GILKINSON: I did not realize 14 that she actually had the baby in -- you said early May? 15 MR. MARK SANDLER: May 1st. 16 17 CONTINUED BY MS. SUZAN FRASER: 18 MS. SUZAN FRASER: Yeah, I believe it was 19 May the 1st. 20 MR. BRIAN GILKINSON: Yeah, I'm not aware 21 of whether or not I knew that she'd actually delivered. 22 MS. SUZAN FRASER: All right. And in 23 terms of -- 24 COMMISSIONER STEPHEN GOUDGE: You are 25 running out of time, Ms. Fraser.
2021 2 CONTINUED BY MS. SUZAN FRASER: 3 MS. SUZAN FRASER: All right. And in 4 terms of the information that you had -- if you had known 5 when you met with the CAS worker that Ms. -- Ms. Waudby 6 was about to have a baby, and you were at that stage 7 coming to the conclusion or at least considering that 8 your case against her might be untenable, that would 9 certainly be relevant information that -- that ought to 10 be provided to the CAS? 11 MR. BRIAN GILKINSON: Well, I understand 12 the record from May the 7th, Mr. Hauraney supplied that 13 information to Mr. Meneley, and it apparently formed part 14 of the record considered by Justice Johnston. I don't 15 know -- 16 MS. SUZAN FRASER: I'm interested in the 17 information that you provided, sir. 18 MR. BRIAN GILKINSON: And I don't know 19 whether or not I told the person by the name of Sullivan 20 that or not. 21 MS. SUZAN FRASER: All right. 22 MR. BRIAN GILKINSON: But I certainly had 23 some reason for -- for talking with her, if she's got a 24 note indicating we did talk about Ms. Waudby and the 25 situation.
2031 MS. SUZAN FRASER: All right. And 2 certainly, coming -- 3 COMMISSIONER STEPHEN GOUDGE: You are 4 going to have to wind up, Ms. Fraser. 5 6 CONTINUED BY MS. SUZAN FRASER: 7 MS. SUZAN FRASER: This is my last 8 question -- coming the other way, it certainly would 9 have been incumbent upon the -- Ms. Sullivan to tell you 10 that Ms. Waudby was about to give birth and that this is 11 actually a very critical stage, and they were considering 12 apprehension? 13 MR. BRIAN GILKINSON: I don't know what 14 directives -- direct -- drive her sharing of information 15 with me. I don't know whether she told me that or not. I 16 think that note indicated the charge would not be 17 withdrawn on Thursday. 18 MS. SUZAN FRASER: Right. 19 MR. BRIAN GILKINSON: Clearly, there must 20 have been an indication from me that at some point in 21 time that charge is likely to be withdrawn. 22 MS. SUZAN FRASER: I see. Thank you. 23 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 24 Fraser. 25 Mr. Gover...?
2041 2 CROSS-EXAMINATION BY BRIAN GOVER: 3 MR. BRIAN GOVER: Thank you very much, Mr. 4 Commissioner. Ms. Regimbal, Mr. Bradley, and Mr. 5 Gilkinson, I'm Brian Gover, and I represent the Office of 6 the Chief Coroner of Ontario. 7 Now, there's been some discussion, Mr. 8 Bradley, about filling out forms when you conclude cases, 9 but I suggest the reality of the matter is that when you 10 finish a case, there's generally another one waiting for 11 you, is that right? 12 MR. EDWARD BRADLEY: That's -- that's for 13 sure, yes. 14 MR. BRIAN GOVER: And that's the -- a 15 function, Mr. Bradley, of working in a busy Crown 16 attorney's office, isn't that right? 17 MR. EDWARD BRADLEY: Yes, it is. 18 MR. BRIAN GOVER: And that was certainly 19 your experience when you were in Whitby, and it remains 20 your experience in Kingston, is that fair? 21 MR. EDWARD BRADLEY: That's fair. 22 MR. BRIAN GOVER: And, Mr. Gilkinson, 23 that's the reality of it in terms of your practice, your 24 experience, and your many years as Crown counsel, is that 25 right?
2051 MR. BRIAN GILKINSON: It is. 2 MR. BRIAN GOVER: And, Ms. Regimbal, the 3 same holds true for you, is that right? 4 MS. TERRI REGIMBAL: Yes. Yes, that's 5 true. 6 MR. BRIAN GOVER: And back to you, Mr. 7 Bradley. Is it fair to say that that reality limits any 8 ability or opportunity rather to review a case with your 9 colleagues or police investigators once it is completed? 10 MR. EDWARD BRADLEY: It certainly makes 11 it difficult unless it's a really exceptional case and 12 something that you feel really has to be addressed. And 13 that's why I suggested if we were going to fill out 14 forms, it should be where there's something significant 15 has occurred not just every single case. 16 MR. BRIAN GOVER: And am I right, Mr. 17 Bradley, that there is currently no formal mechanism in 18 place within the Crown system to allow for complaints 19 about the conduct of a pathologist during a trial? 20 MR. EDWARD BRADLEY: Certainly, the Crown 21 policy manual specifically refers to scientists as it 22 refers to the Centre of Forensic Sciences at the present 23 time. 24 MR. BRIAN GOVER: So perhaps by analogy, 25 one could apply that process to pathologists, but it
2061 doesn't plainly or directly apply, is that fair? 2 MR. EDWARD BRADLEY: I think that's fair. 3 MR. BRIAN GOVER: And certainly no such 4 formal mechanism existed at the time you prosecuted what 5 we've been calling the Sharon case, is that fair, sir? 6 MR. EDWARD BRADLEY: That's fair. 7 MR. BRIAN GOVER: And the same would hold 8 true, Mr. Gilkinson, of the time when you were 9 prosecuting the Jenna case? 10 MR. BRIAN GILKINSON: Correct. 11 MR. BRIAN GOVER: And of course, Ms. 12 Regimbal, the same would hold true of the time when you 13 were prosecuting what we, in this room, call the Amber 14 case -- 15 MS. TERRI REGIMBAL: Yes. 16 MR. BRIAN GOVER: -- is that fair? 17 MS. TERRI REGIMBAL: That's correct. 18 MR. BRIAN GOVER: And, Mr. Bradley, there 19 is no formal mechanism in place to lodge such complaints 20 with the Coroner's Office, so far as you're aware, is 21 that fair? 22 MR. EDWARD BRADLEY: That's correct. 23 MR. BRIAN GOVER: Now, perhaps I'll turn 24 back to you, Mr. Bradley, given your many years 25 experience as Crown counsel, you are familiar with the
2071 fact that over the years there have been a number of 2 Crown counsel seconded to work within the Office of the 3 Chief Coroner. 4 Is that right? 5 MR. EDWARD BRADLEY: That's right. In 6 fact, I'm aware that Mr. O'Marra was there for a number 7 of years. 8 MR. BRIAN GOVER: Yes, and before him, Mr. 9 Wolski, Bill Wolski, is that right? 10 MR. EDWARD BRADLEY: I remember Mr. 11 Wolski being there, yes. 12 MR. BRIAN GOVER: Yes. And if I were to 13 suggest, Mr. Bradley, that that was in the early 1990's, 14 that Mr. Wolski, as he then was, occupied the position of 15 the -- of Chief Counsel to the Office of the Chief 16 Coroner, does that sound right to you, sir? 17 MR. EDWARD BRADLEY: That's sounds 18 correct, yes. 19 MR. BRIAN GOVER: And that position from 20 the mid 1990's to 2006 was held by Mr. O'Marra, as he 21 then was, is that fair? 22 MR. EDWARD BRADLEY: That's correct. 23 MR. BRIAN GOVER: And presently I 24 understand that Eric Siebenmorgen is Chief Counsel to the 25 Office of the Chief Coroner.
2081 Is that right, Mr. Bradley? 2 MR. EDWARD BRADLEY: I wasn't aware who 3 had replaced Mr. O'Marra, but if you tell me that's Mr. 4 Siebenmorgen's present position, I wouldn't disagree. 5 MR. BRIAN GILKINSON: I'll agree with 6 you. 7 MR. BRIAN GOVER: I'll take it. Thank 8 you, Mr. Gilkinson. And, of course, at the time that 9 each of them held those positions, Mr. Gilkinson, these 10 were your colleagues. 11 Is that fair? 12 MR. BRIAN GILKINSON: That is correct. 13 MR. BRIAN GOVER: And you and other Crown 14 counsel would certainly have known them through Crown 15 attorney conferences, such as the spring conference or 16 through Crown attorney summer school. 17 Is that fair, sir? 18 MR. BRIAN GILKINSON: I knew each of them 19 quite well. 20 MR. BRIAN GOVER: And, Mr. Bradley, that 21 would hold true of you, as well? 22 MR. EDWARD BRADLEY: Correct, yes. 23 MR. BRIAN GOVER: And, Ms. Regimbal, that 24 would hold true of you, too. 25 Is that fair?
2091 MS. TERRI REGIMBAL: Yes, I certainly 2 knew all of those counsel for the Coroner's Office. 3 MR. BRIAN GOVER: And do you agree with 4 me that it is certainly, and I should indicate to whom 5 I'm directing the question. 6 Why -- why not you, Ms. Regimbal, do you 7 agree with me that it's certainly open to Crown attorneys 8 prosecuting cases and using experts from within the 9 Coroner's Office to call a colleague working within the 10 system and express any concerns or frustrations that they 11 may have about the work of an expert working under the 12 auspices of the Coroner's Office? 13 MS. TERRI REGIMBAL: Yes, I can say I 14 wouldn't hesitate to pick up the phone and call Eric 15 Siebenmorgen about an issue I had. It might depend on 16 the particular Crown and their relationship, but I've 17 known Eric Siebenmorgen and I knew Al O'Marra. I knew 18 Bill Wolski; I worked with him in Etobicoke. 19 Other Crowns may not feel that comfort 20 zone because they might not know them; we're such a huge 21 organization nowadays. 22 MR. BRIAN GOVER: Right. And you've told 23 us that you wouldn't feel hesitation if the need arose. 24 Prior to 2001, did you ever speak to Mr. Wolski or Mr. 25 O'Marra about concerns regarding Dr. Smith?
2101 MS. TERRI REGIMBAL: Well, no I -- my 2 dealings with Dr. Smith pretty well ended in 1990 when 3 the end of the prosecution, and then there was the 4 followup meeting in 1992, but I never contacted anyone at 5 the Coroner's Office about Justice Dunn's decision. 6 MR. BRIAN GOVER: Thank you. And -- and, 7 Mr. Bradley, prior to 2001, did you ever speak to Mr. 8 Wolski or Mr. O'Marra voicing concerns about Dr. Smith? 9 MR. EDWARD BRADLEY: No, I didn't. I 10 primarily dealt with Dr. Smith in, I guess, it was 11 '86/'87 when we had the Lawrence case, and, of course, 12 around 2000/2001, Dr. Young, Dr. Cairns, and Dr. Chiasson 13 were well aware of the situation because they were part 14 of -- part of the meetings that I held with regards to 15 Dr. Smith. 16 MR. BRIAN GOVER: Yes, and -- and in 17 fact, you'll agree with me, Mr. Bradley, that Dr. Cairns, 18 the Deputy Chief Coroner, had a high profile within the 19 criminal justice community, is that fair? 20 MR. EDWARD BRADLEY: Yes, and I also got 21 to know Dr. Cairns and Dr. Young because I was involved 22 in the Gendels (phonetic) inquest which went for fifteen 23 (15) months. I was the coroner's counsel for that. 24 MR. BRIAN GOVER: Right. And they were 25 available to you in the sense, Mr. Bradley, that you felt
2111 -- you felt it appropriate to speak to Dr. Young, the 2 Chief Coroner, when you ran into him at a course at the 3 University of Western Ontario, is that right? 4 MR. EDWARD BRADLEY: At the time we -- we 5 certainly knew one another and I had actually appeared at 6 Divisional Court as counsel for him on two (2) occasions 7 during the Gendels inquest and certainly I had met Dr. 8 Cairns on a number of occasions. And that's why when Dr. 9 Cairns expressed some concern about some of the wounds, I 10 immediately tried to get a hold of Dr. Smith because I 11 respected Dr. Cairns' opinions. 12 MR. BRIAN GOVER: Do you agree with me as 13 well, Mr. Bradley, that Dr. Cairns and Dr. Young were 14 available to field complaints or concerns that Crowns may 15 have had regarding a particular pathologist? 16 MR. EDWARD BRADLEY: Certainly from my 17 point of view they were. Whether or not other Crowns 18 would have been as willing to pick up the phone and try 19 and speak to the Chief Coroner of Ontario; it may have 20 been easier for them to get a hold of Coroners' Council 21 and go through that mechanism. 22 MR. BRIAN GOVER: And actually that leads 23 me to the next question, Mr. Bradley, so I'll go right 24 back to you with it. 25 Would it surprise you that both Dr. Young
2121 and Dr. Cairns testified that prior to 2001, they did not 2 receive phone calls or letters from Crown attorneys 3 regarding concerns about Dr. Smith, other than in 4 relation to issues pertaining to timeliness of autopsy 5 reports? 6 MR. EDWARD BRADLEY: I guess nothing 7 surprises me. If you tell me that's his evidence then 8 obviously that's his evidence, but I'm not sure that I 9 can say I'm surprised by it. 10 Like I say, some Crowns, because they 11 didn't know Dr. Young like I did, you know, might be 12 reluctant. That would be almost like the equivalent of 13 calling the Attorney General which I wouldn't do. 14 MR. BRIAN GOVER: All right. And, Mr. 15 Gilkinson, do you agree with me that while there was no 16 formal mechanism in place, there were people to contact 17 within the Coroner's Office if there were serious 18 concerns regarding an expert used in a prosecution? 19 MR. BRIAN GILKINSON: Oh yes, I'd agree 20 with that, and I've taken advantage. 21 MR. BRIAN GOVER: And, Mr. Gilkinson, Ms. 22 Baron asked you about Dr. Thompson's involvement as 23 investigating coroner in Jenna's case this morning. 24 MR. BRIAN GILKINSON: Yes. 25 MR. BRIAN GOVER: Do you recall some
2131 questions about that? 2 MR. BRIAN GILKINSON: Yes. 3 MR. BRIAN GOVER: Now as prosecutor, I 4 understand you had no involvement with Dr. Thompson, is 5 that right? 6 MR. BRIAN GILKINSON: No, I never had any 7 involvement with Dr. Thompson. That was early on and 8 before I became seized with the file. 9 MR. BRIAN GOVER: And generally, though, 10 as a prosecutor, given that cases of this type begin as 11 criminally suspicious cases, your interaction -- a Crown 12 attorney's interaction with an investigating coroner 13 would be minimal. 14 Is that generally true? 15 MR. BRIAN GILKINSON: Early on at the 16 time a warrant for post-mortem examination would be 17 signed, yes. 18 MR. BRIAN GOVER: And, in fact, when you 19 prosecute a case, your primary medical professional 20 contact is the pathologist. Is that right? 21 MR. BRIAN GILKINSON: If you can get in 22 contact with him, yes, that's correct. 23 MR. BRIAN GOVER: Fair enough. And, at 24 least, at first instance then the pathologist is the -- 25 or, at least, a key expert. Is that fair?
2141 MR. BRIAN GILKINSON: Well, it certainly 2 is if you're relying on pathological opinion to establish 3 an essential element of the offence. 4 MR. BRIAN GOVER: And you look to the 5 pathologist, I suggest, Mr. Gilkinson, to tell you about 6 the limits of his or her expertise? 7 MR. BRIAN GILKINSON: Well, you hope the 8 pathologist is -- is alive to that issue and you hope, 9 you as Crown, are as well. 10 MR. BRIAN GOVER: Now while we are 11 speaking, Mr. Gilkinson, I'll ask that PFP144684 be 12 brought up please, and this is at Tab 1; it's the Jenna 13 overview report. Could we go to page 59, please? 14 And we see paragraph 95 here refers to 15 your meeting with Dr. Porter, then the Deputy Chief 16 Coroner, and the Regional Coroner, Dr. Clark, is that 17 correct? 18 MR. BRIAN GILKINSON: Yes. 19 MR. BRIAN GOVER: And you sought advice 20 from the Deputy Chief Coroner in her role as Acting Chair 21 of the Paediatric Death Review Committee. 22 Is that right, Mr. Gilkinson? 23 MR. BRIAN GILKINSON: I sought her advice 24 because she was -- she was there. I don't recall her 25 position as Acting Chair. I just know she certainly was
2151 a person of rank within the Chief Coroner's Office, and 2 she was there, and I certainly wanted to speak to her 3 given her position within the Office. 4 MR. BRIAN GOVER: Am I correct that the 5 purpose of the meeting was twofold? First of all to 6 raise the issue of concern of the timing of Jenna's 7 injuries. You wanted the Office of the Chief Coroner to 8 provide an opinion from someone with the right expertise, 9 is that fair? 10 MR. BRIAN GILKINSON: That -- that is 11 correct. 12 MR. BRIAN GOVER: And the second purpose 13 was you wanted to raise a policy issue about the need to 14 be careful about information given to the police. You 15 wanted to make sure that the medical information was 16 being sought from the appropriate expert? 17 MR. BRIAN GILKINSON: That is correct. 18 And I can tell you that as of that date I was under the 19 impression that the clinical opinion on timing was 20 something not within the expertise of the pathologist. 21 I've been corrected with respect to that 22 in terms of what microscopic examination can tell a 23 pathologist on that issue, but I still stand by the fact 24 that a clinician's opinion with respect to behaviours 25 would have been helpful.
2161 MR. BRIAN GOVER: Yes. And in fact, when 2 you sought that advice, I take it that you understood 3 that Dr. Porter herself is a physician coroner and not a 4 pathologist, is that fair? 5 MR. BRIAN GILKINSON: I didn't 6 necessarily seek advice from her personally. I was 7 trying to give the Office of the Chief Coroner the 8 opportunity to consult with whomever they wished so that 9 they could be satisfied themselves with respect to the 10 timing issue, and -- and where the preponderance of 11 medical opinion would be on it. 12 MR. BRIAN GOVER: I understand that 13 sixteen (16) days later on May 26th, 1999, Dr. Porter 14 provided you with her response to your concerns. 15 Is that right? 16 MR. BRIAN GILKINSON: She did. Yes, she 17 did. 18 MR. BRIAN GOVER: And you testified that 19 her letter was responsive to your concerns regarding the 20 timing of injuries. 21 Is that right? 22 MR. BRIAN GILKINSON: It was. She had 23 indicated she consulted with -- with a pathologist. 24 MR. BRIAN GOVER: And Dr. Porter 25 indicated in her letter to you that she had consulted
2171 with a pathologist. 2 Is that right? 3 MR. BRIAN GILKINSON: That was my 4 understanding. I -- I don't have the complete letter 5 here, but I know I've -- I've reviewed it elsewhere. 6 MR. BRIAN GOVER: And, Mr. Gilkinson, you 7 were satisfied with the opinion. 8 Is that right? 9 MR. BRIAN GILKINSON: I was satisfied 10 with that -- that was going to be the position taken by 11 the Office of the Chief Coroner, and I was going to act 12 on the information I had to that point. 13 MR. BRIAN GOVER: And that was -- 14 COMMISSIONER STEPHEN GOUDGE: Did she 15 tell you who the other pathologist was? 16 MR. BRIAN GILKINSON: I beg your pardon? 17 COMMISSIONER STEPHEN GOUDGE: Did she 18 tell you who the pathologist was that she consulted? 19 MR. BRIAN GILKINSON: Not in the 20 correspondence, and I don't recall if she said. I -- I 21 might have been assuming and -- and probably just 22 assuming it would be Dr. Pollanen, but I'm not certain of 23 that. 24 25 CONTINUED BY MR. BRIAN GOVER:
2181 MR. BRIAN GOVER: And, Mr. Gilkinson, 2 that opinion was consistent with the opinion of Dr. Ein. 3 Is that right? 4 MR. BRIAN GILKINSON: Correct. 5 MR. BRIAN GOVER: Now, Mr. Gilkinson, you 6 testified that in addition to the assistance you received 7 from Dr. Porter in 1999, you sought assistance from the 8 Office of the Chief Coroner again in 2004 when in 9 relation to the investigation and eventual plea by the 10 babysitter, Dr. Pollanen provided you with a report. 11 Is that correct? 12 MR. BRIAN GILKINSON: The babysitter's 13 culpability was established in '05, I believe. We had a 14 number of meetings at the Coroner's Office throughout the 15 course of Constable Charmley's review. 16 Because at the start of engaging new 17 experts, I'd indicated to the police and -- and the 18 Coroner's Office, I'd like to be present for these case 19 conferences so that I don't lose anything; that I'm 20 actually there to hear what is being discussed, so I have 21 a better of idea of the strength of the opinion that is 22 being discussed as we went along. 23 So I think my earliest contact with the 24 Chief Coroner's Office during the review was just 25 basically, Let's see where we're at, at any significant
2191 point along -- along that review stage. 2 MR. BRIAN GOVER: And thank you, and I 3 stand corrected. I take it from what you've said, Mr. 4 Gilkinson, that you're a proponent of Crown Counsel 5 taking part in case conferences at early stages in 6 appropriate circumstances? 7 MR. BRIAN GILKINSON: As long as it 8 doesn't turn them into a witness, yes, I'm more than 9 happy with that. 10 MR. BRIAN GOVER: And hence, appropriate 11 circumstances? 12 MR. BRIAN GILKINSON: Correct, yes. 13 MR. BRIAN GOVER: And I understand that 14 the Office of the Chief Coroner also sought additional 15 opinions from a clinician outside the province, is that 16 right? 17 MR. BRIAN GILKINSON: Actually, more than 18 -- more than one. I think we're talking about Dr. 19 Wesson, and Dr. Walton, I believe, and Dr. Feldman. 20 MR. BRIAN GOVER: And you told us, Mr. 21 Gilkinson, this morning that you go back to the Office of 22 the Chief Coroner, in your words, "all the time for 23 assistance in identifying appropriate experts." 24 Is that right? 25 MR. BRIAN GILKINSON: When did I say
2201 that? 2 MR. BRIAN GOVER: This morning. 3 MR. BRIAN GILKINSON: Did I say that this 4 morning? Well, I hate those words like "all the time, 5 never, always", but what -- 6 MR. BRIAN GOVER: It struck me as an 7 articulate turn of phrase at the time. 8 MR. BRIAN GILKINSON: Yes, well what I 9 feel when I -- when I feel I need assistance from the 10 Chief Coroner's Office, I'm more than happy to go to 11 them. 12 MR. BRIAN GOVER: And, Mr. Bradley, you 13 testified that Dr. Young and Dr. Cairns were central to 14 getting Dr. Symes' report. 15 Is that right? 16 MR. EDWARD BRADLEY: Correct, yes, 17 absolutely. 18 MR. BRIAN GOVER: And do you agree with 19 me, Mr. Bradley, that the Coroner's Office and those 20 working within it were responsive to your concerns, and 21 either when asked or on their own initiative, sought out 22 expert opinions in addition to those originally provided? 23 MR. EDWARD BRADLEY: Yes. 24 MR. BRIAN GOVER: Do you -- is that your 25 experience, as well, Mr. Gilkinson?
2211 MR. BRIAN GILKINSON: It is. 2 MR. BRIAN GOVER: Thank you very much. 3 Those are my questions. Thank you, Commissioner. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 5 Gover. 6 Ms. Crawford...? 7 8 CROSS-EXAMINATION BY MS. KATE CRAWFORD: 9 MS. KATE CRAWFORD: Good afternoon. My 10 name's Kate Crawford. I'm one (1) of the lawyers here on 11 behalf of the Hospital for Sick Children. Ms. Regimbal, 12 I just have a few quick questions for you with regards to 13 one (1) of your suggestions you made yesterday afternoon. 14 MS. TERRI REGIMBAL: Okay. 15 MS. KATE CRAWFORD: Near the end of your 16 evidence yesterday you gave a suggestion with relation to 17 hospital charts and you expressed that you had some 18 concerns during the Amber case; that you didn't always 19 have the full chart, be it from the Hospital for Sick 20 Children or the other hospitals you were dealing with. 21 MS. TERRI REGIMBAL: Yes, I -- I think I 22 expressed the concern I didn't have the full information 23 in case there were notes or -- 24 MS. KATE CRAWFORD: Right. 25 MS. TERRI REGIMBAL: -- reports that
2221 didn't make it into one (1) file folder or another. 2 MS. KATE CRAWFORD: Right. And so what I 3 wanted to do with you is just break that down and discuss 4 it a little bit more in the context of hospital records 5 generally -- 6 MS. TERRI REGIMBAL: Yes. 7 MS. KATE CRAWFORD: -- and then hospital 8 records with relation to the Amber case specifically. I 9 understand now, and -- and I think that you -- you said 10 yesterday that with regards to a hospital chart, more 11 generally speaking, you now understand that when someone 12 -- when you make a request for a hospital chart, the 13 chart may be sent to you before all of the reports have 14 made their way into the chart? 15 MS. TERRI REGIMBAL: Yes, that can 16 happen. 17 MS. KATE CRAWFORD: Okay. And do you 18 also understand now that some items, for example, an 19 original x-ray, wouldn't actually be a part of the 20 hospital chart itself, but would rather be something you 21 would have to request separately? 22 MS. TERRI REGIMBAL: Well, I understand 23 that now. 24 MS. KATE CRAWFORD: Okay. And that's -- 25 that's --
2231 MS. TERRI REGIMBAL: But I mean I -- 2 usually if the search warrant's framed broadly enough it 3 should capture x-rays, as well, copies of x-rays. 4 MS. KATE CRAWFORD: Right. So, do you 5 think that there would be any value in some education, 6 both for Crown or defence lawyers, in -- in hospital 7 charts generally, how they work, when requests should be 8 made, was -- how to frame your warrants so as to capture 9 all of this information? 10 MS. TERRI REGIMBAL: I -- I don't think 11 something like that could hurt. Certainly that would 12 have to be also directed at the police for framing search 13 warrants for medical records. 14 MS. KATE CRAWFORD: Okay. Thank you. 15 Now, with regards to records with regards -- records rega 16 -- relating to post-mortem reports and autopsies, and you 17 testified earlier that although you had some confusion at 18 the time with regards to who, a pathologist, for example, 19 Dr. Smith's employer was, you now understand that it -- 20 it -- in -- in his capacity as -- as doing coroner's 21 autopsies, he's working for the Coroner's Office? 22 MS. TERRI REGIMBAL: Yes. 23 MS. KATE CRAWFORD: Okay. And, in fact, 24 sometimes these children on whom autopsies are being 25 performed are not even patients at the hospital, so they
2241 may not have a hospital chart at all. 2 MS. TERRI REGIMBAL: I accept that. 3 MS. KATE CRAWFORD: Okay. So, when a 4 pathologist performs an autopsy, he'll have a file of -- 5 related to the autopsy, and if there's no hospital chart, 6 then you understand that the doctor's notes with regards 7 to the autopsy -- the notes, photographs, et cetera, will 8 be in the pathologist's individual file? 9 MS. TERRI REGIMBAL: I know that. 10 MS. KATE CRAWFORD: Okay. So, you 11 understand now, and -- and perhaps you understood at the 12 time, that a request for these notes would be 13 appropriately made to the individual pathologists or the 14 Coroner's Office rather than the individual hospital? 15 MS. TERRI REGIMBAL: Well, Dr. Smith was 16 -- you know, he was an employee of the Hospital for Sick 17 Children, and I -- I think that when the warrant was 18 executed, everyone -- they knew what we wanted. 19 I would have hoped the hospital -- 20 somebody would have called us and said, These records 21 aren't being kept here, or that Charles Smith might have 22 said, These records aren't being kept here; whatever 23 records might or might not have existed; I mean I 24 understand that. 25 It's different in the north where often
2251 the pathologist is not a forensic pathologist attached to 2 the tre -- the Toronto Office for the Coroner's Office, 3 but a pathologist who work within a hospital setting and 4 keep all of their notes within that hospital setting, 5 even though they may be doing an autopsy under a 6 coroner's warrant, usually our search warrants will 7 capture that. 8 MS. KATE CRAWFORD: Okay. So, if I hear 9 what you're saying correctly, you'd like to find a 10 mechanism by which the hospital should -- should -- go -- 11 you know, leave no stone unturned, so to speak and -- and 12 find a way to speak with the individual pathologists and 13 everyone requesting these additional notes and -- and 14 photographs that don't necessarily make up part of the 15 chart? 16 MS. TERRI REGIMBAL: Well as a Crown I 17 just want to be sure that I have all of the information 18 available for assessing the case, preparing the case, and 19 disclosing on the case. However we do that -- whatever 20 works is what will work. 21 MS. KATE CRAWFORD: That's certainly 22 understandable. With regards to the records of other -- 23 other positions involved -- and in -- in the 24 circumstances of the Amber Case these were members -- 25 some members of the SCAN Team, other member of, I
2261 believe, neurology or neuroradiology at the hospital. 2 With regards to the SCAN physicians, when 3 they work with a child clinically, their notes will make 4 up part of the hospital chart, correct? 5 MS. TERRI REGIMBAL: I'll accept you 6 that. 7 MS. KATE CRAWFORD: Okay. You -- 8 MS. TERRI REGIMBAL: You know, I -- I 9 don't have an independent recollection of what I received 10 from Hospital for Sick Children, like every document. I 11 don't remember that, what I received in '80 -- 1988 or 12 '89. 13 MS. KATE CRAWFORD: Okay. And when then 14 Crown goes on to retain a physician independently in the 15 course of a criminal prosecution, would it be your 16 expectation that their report and notes as retained by 17 the Crown would make their way into the hospital chart? 18 MS. TERRI REGIMBAL: Do you mean if I was 19 retaining an outside expert for an opinion? 20 MS. KATE CRAWFORD: Correct. And be that 21 an expert that may have been clinically involved with the 22 child at the outset, or someone else from a hospital 23 where the child was treated? 24 MS. TERRI REGIMBAL: Are you talking 25 about a deceased child, a homicide investigation? Or a
2271 child that's being treated -- continuing to be treated by 2 the Hospital for Sick Children? 3 MS. KATE CRAWFORD: A deceased child. 4 MS. TERRI REGIMBAL: And I was retaining 5 an outside expert. I wouldn't expect that that would go 6 back to the Hospital for Sick Children. 7 MS. KATE CRAWFORD: Okay. You wouldn't 8 expect, if the physician providing the opinion was a 9 member on staff at the hospital, that their report should 10 be expected in the char -- included in the chart rather? 11 MS. TERRI REGIMBAL: If the -- if the 12 position I was retaining was a member of the Hospital for 13 Sick Children's staff? 14 MS. KATE CRAWFORD: Correct. 15 MS. TERRI REGIMBAL: I would expect that 16 there would be records within the Hospital for Sick 17 Children by that doctor for what I asked him to do or her 18 to do. 19 MS. KATE CRAWFORD: And would you expect 20 that to be in the chart that was provided to you by the 21 hospital that was under your warrant. 22 MS. TERRI REGIMBAL: Okay. Well, if I 23 had executed the warrant and looked at the records, 24 obviously I would have executed the warrant and then 25 decided to retain another opinion, so no, I wouldn't
2281 expect an opinion that hadn't been created yet to be in 2 there. 3 MS. KATE CRAWFORD: Okay. Thanks. 4 MS. TERRI REGIMBAL: It's very confusing. 5 MS. KATE CRAWFORD: I understand. I'm 6 sorry, I think I -- I -- I'm sorry if I'm asking my 7 questions in a way that's confusing. I think what I'm 8 generally trying to get at is that there -- there are so 9 many different manners in which records can be provided 10 in a hospital, that there may be some value to clarifying 11 for all lawyers involved, and police in fact, the records 12 that can be produced at a hospital and how one might get 13 around being provided with them. 14 Would you agree with that? 15 MS. TERRI REGIMBAL: Whatever's -- 16 whatever can be done to make sure the Crown gets all the 17 information, it should be done. Whoever needs to do it, 18 is fine. If Crowns need to be educated, fine. If 19 keepers of records need to be educated, fine. If police 20 need to be educated about their search warrants, fine. 21 You know, the problem was in the Amber 22 case, that there seemed to be notes that were in 23 different places. There were consultations that weren't 24 recorded, they weren't documented. People were having -- 25 and I understand why -- but they were having hallway
2291 discussions about things and making decisions and 2 conclusions about them, and that was one (1) of the 3 things I think that Justice Dunn found troubling. 4 MS. KATE CRAWFORD: Okay. Those are all 5 of my questions. 6 MS. TERRI REGIMBAL: Okay. 7 MS. KATE CRAWFORD: Thank you. Thank 8 you. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Crawford. We'll rise then for fifteen (15) minutes and 11 come back with you Mr. Cavalluzzo. 12 13 --- Upon recessing at 3:16 p.m. 14 --- Upon resuming at 3:32 p.m. 15 16 THE REGISTRAR: All Rise. Please be 17 seated. 18 COMMISSIONER STEPHEN GOUDGE: Mr. 19 Cavalluzzo...? 20 21 CROSS-EXAMINATION BY MR. PAUL CAVALLUZZO: 22 MR. PAUL CAVALLUZZO: Hello, I'm Paul 23 Cavalluzzo and I am president of the Ontario Crown 24 Attorney's Association. 25 I understand, of which none of you are
2301 presently members, is that correct? 2 MR. EDWARD BRADLEY: That is correct. 3 MR. BRIAN GILKINSON: That's correct. 4 COMMISSIONER STEPHEN GOUDGE: The next 5 question is why not? 6 MR. EDWARD BRADLEY: We're -- we're only 7 members -- only members you're assistant Crown attorneys, 8 that's the answer. 9 MR. PAUL CAVALLUZZO: And indeed that 10 leads me to a couple of questions before I get into a 11 number of systemic issues that I'd like to deal with you. 12 And that is, Ms. Regimbal, when you 13 prosecuted the Amber case you were an Assistant Crown 14 Attorney? 15 MS. TERRI REGIMBAL: That's correct. 16 MR. PAUL CAVALLUZZO: And I understand 17 the reporting structure at that time would have been that 18 you would report to the Crown Attorney -- 19 MS. TERRI REGIMBAL: That's correct. 20 MR. PAUL CAVALLUZZO: -- who was Dave 21 Thomas? 22 MS. TERRI REGIMBAL: That's right. 23 MR. PAUL CAVALLUZZO: And in respect of 24 the decision of Mr. Justice Dunn, did you give that 25 decision to the Crown Attorney, Mr. Thomas?
2311 MS. TERRI REGIMBAL: Well, he would have 2 had that decision because I wasn't in the courtroom to 3 receive it; it came to his office first and then they 4 made a copy and sent it to me. 5 MR. PAUL CAVALLUZZO: Okay. So that you 6 were aware that the Crown Attorney had a copy of that 7 decision? 8 MS. TERRI REGIMBAL: Yes. 9 MR. PAUL CAVALLUZZO: Okay. And the 10 other point I would raise is that this meeting that you 11 had in Toronto subsequent to the Dunn decision with the 12 SCAN Team was quite an unusual meeting, was it not? 13 MS. TERRI REGIMBAL: Yes, it was. 14 MR. PAUL CAVALLUZZO: It was attended to 15 not only by yourself but with two (2) senior Crown 16 Attorneys? 17 MS. TERRI REGIMBAL: That's correct. 18 MR. PAUL CAVALLUZZO: And there was a 19 thorough discussion of the Dunn decision? 20 MS. TERRI REGIMBAL: Yes, there was -- 21 MR. PAUL CAVALLUZZO: Okay. 22 MS. TERRI REGIMBAL: -- I thought so. 23 MR. PAUL CAVALLUZZO: Now the other non- 24 systemic question I would ask you, Ms. Regimbal, as well, 25 and that is I understand this morning that you were asked
2321 a number of questions as to whether questions as to the 2 accuracy or legitimacy of Dr. Smith's report came to mind 3 as you were cross-examining these defence experts. 4 And this was when you were a two (2) year 5 Crown back in I guess the early '90s? 6 MS. TERRI REGIMBAL: Early -- late '80s. 7 MR. PAUL CAVALLUZZO: Late '80s? 8 MS. TERRI REGIMBAL: Yes. 9 MR. PAUL CAVALLUZZO: Now I understand 10 that the babysitter's father in that case filed a 11 complaint with the College of Physicians and Surgeons? 12 MS. TERRI REGIMBAL: Yes, that's correct 13 he did. 14 MR. PAUL CAVALLUZZO: And a decision was 15 made by them in 2002 concerning Dr. Smith's testimony and 16 report? 17 MS. TERRI REGIMBAL: Yes, it was in 18 relation to this case, the Amber case. 19 MR. PAUL CAVALLUZZO: Right. And do you 20 know the -- what the decision of the College was? 21 MS. TERRI REGIMBAL: They found that his 22 conclusion was appropriate -- his conclusion as to cause 23 of death was appropriate for the late '80s, early '90s. 24 They also, I believe, found that his post-mortem report 25 was appropriate. They did find some issues. They did
2331 sanction him on -- 2 MR. PAUL CAVALLUZZO: Right. 3 MS. TERRI REGIMBAL: -- some areas, but I 4 do remember those two (2) they found were appropriate for 5 the time. 6 MR. PAUL CAVALLUZZO: Okay. Now I'd like 7 to move to systemic issues and what I'm going to do, I'm 8 going to throw a question out, it can be answered by any 9 of you. And if I -- any of you have any comments 10 concerning the response of whoever answers it initially, 11 I would ask you to -- to respond. 12 Now first I want to deal with a reciprocal 13 disclosure. And I don't know if you're aware but there 14 was a research paper commissioned by the Inquiry which 15 stated that over the years it has been frequently 16 suggested that there should be mandatory pre-trial 17 disclosure by the defence. For example, the Moran Report 18 is one (1) example. 19 And that paper goes on to say that the 20 call for defence disclosure is almost never on the ground 21 that it will help the defence, but is always in terms of 22 the efficiency of the trial and so on, and so forth. And 23 the author said that he had no empirical evidence to 24 either rebut that statement or not. 25 And I think -- I put it to you that I
2341 think we have empirical evidence, certainly in respect of 2 the Jenna case, Mr. Gilkinson, and the Sharon case, Mr. 3 Bradley, that certainly the pre-trial disclosure that you 4 got in respect of seeing the reports or meeting with you, 5 Mr. Gilkinson, meeting with the defence counsel and his 6 expert, that that in the end of the day benefited the 7 defence. 8 Would you agree or not? 9 MR. BRIAN GILKINSON: Absolutely. Ms. 10 Waudby was -- was -- the prosecution against her was 11 discontinued and she lived with that over her head for a 12 significant length of time. 13 MR. PAUL CAVALLUZZO: Right. And what 14 about you, Mr. Bradley, would you agree with that? 15 MR. EDWARD BRADLEY: Once again I would 16 certainly agree with that. Once we got the -- I can't 17 remember whether it was five (5) pages or six (6) pages, 18 but the five (5) or six (6) page report from Dr. Ferris 19 in October, it provided some explanations which I then 20 put to Dr. Smith and he admitted that he understood. I 21 think what he said was, he understood where Dr. Ferris 22 was coming from. 23 And so yes, it did go quite a ways to 24 ultimately supporting a withdrawal of the charge. 25 MR. PAUL CAVALLUZZO: And I have a
2351 question for you, Ms. Regimbal. 2 Do you think if you saw the defence 3 reports -- and we're talking about nine (9) experts in 4 Amber's case -- that they -- that may have affected your 5 judgment as to the first question that you have to answer 6 as a Crown attorney that has reasonable prospect of 7 conviction? 8 MS. TERRI REGIMBAL: I -- I don't have 9 any doubt that in 2008 if I had those reports it would 10 have dramatically affected my assessment of the case. 11 And I think about the issue of reciprocal disclosure, and 12 I -- I really do believe it can benefit the defence in 13 many ways and -- either by having their defence experts 14 issues answered by the Crown expert. 15 It may end up in a resolution of a plea. 16 It could end up in the resolution of a plea to a lesser 17 offence. It could end up in a resolution by a withdrawal. 18 It could also shorten the process, and I 19 don't think that that's to the determent of the accused. 20 I think that it's to their benefit to have the issues 21 focussed and crystalized so that we can get down to what 22 we're really debating in the trial. And I think that's 23 going to result in -- in shorter trials for -- for the -- 24 the accused person. 25 I don't think that's a bad thing, I think
2361 that's a good thing for them. 2 MR. PAUL CAVALLUZZO: Okay. Now, I'd 3 like to move on now to limited resources. And in fact, 4 you may be aware that there was a Court of Appeal 5 decision which states that Crowns have significant 6 caseloads and considerable resource restrictions. 7 And -- and just apply that to the 8 particular circumstances of each case. Now, Ms. Reg -- 9 Regimbal, you were a two (2) year Crown prosecutor in 10 terms of prosecuting Amber's case. 11 Is that correct? 12 MS. TERRI REGIMBAL: When I actually took 13 the lead role in the prosecution I would have a -- about 14 three (3) out, and I already had juniored on three (3) 15 homicides. 16 MR. PAUL CAVALLUZZO: Right. Okay. 17 MS. TERRI REGIMBAL: But I think that was 18 a reflection of the depth of experience within the 19 Crown's office during that particular time period. 20 MR. PAUL CAVALLUZZO: Right. 21 MS. TERRI REGIMBAL: I think a lot of 22 senior people had left. 23 MR. PAUL CAVALLUZZO: Okay. And in 24 Sharon's case, Mr. Bradley, I think you told us that you 25 were the second or third Crown attorney to have carriage
2371 of that -- that prosecution, and you came in, I guess, in 2 the last year of a three (3) or four (4) years 3 prosecution? 4 MR. EDWARD BRADLEY: I -- I came within 5 the last -- the last year, and I took over from Mr. 6 McKenna, who had been the Crown attorney for Frontenac 7 County. He retired and I was asked to come in by the 8 Regional Director, Mr. Stewart, because he felt they 9 needed somebody with experience. 10 Ms. Ferguson was, at the time -- I think 11 she had only been called to the bar in '95 or '96, -- 12 MR. PAUL CAVALLUZZO: Right. 13 MR. EDWARD BRADLEY: -- something like 14 that. 15 MR. PAUL CAVALLUZZO: Okay. And in -- in 16 terms of Jenna's case, Mr. Gilkinson, I think you -- you 17 told us that you were the third Crown on the case and 18 that you came in after the preliminary inquiry? 19 MR. BRIAN GILKINSON: I was the second 20 significant Crown on the case. I think Mr. Marsland's 21 involvement was only at the initial case conference. 22 MR. PAUL CAVALLUZZO: Okay. Now, I'm 23 going to come back to that in terms of certain 24 recommendations that the association may be making to the 25 inquiry. But before doing that, I want to deal with pre-
2381 charged screening. 2 And -- and certainly the -- as -- as we 3 learned in first year law school the -- the role of the 4 police is to investigate the crime and to lay the 5 charges. The role of the Crown, of course, is to 6 prosecute the -- the criminal charges. 7 And I think -- would you agree with me 8 that those separate and distinct roles of each, within 9 the criminal justice system, should be maintained and 10 respected? 11 MR. EDWARD BRADLEY: Certainly, I think 12 there's -- 13 MR. PAUL CAVALLUZZO: Mr. Gilkinson -- 14 sorry, Mr. Bradley -- 15 MR. EDWARD BRADLEY: -- I think there's a 16 benefit to doing that. However, the one (1) exception is 17 that -- and if often happens in serious offences, and it 18 did, as I understand, happen in Sharon's case. Mr. 19 McKenna, I think, was consulted on some legal issues. 20 And it's not uncommon for Crowns to be 21 consulted on legal issues, but generally, I think it's 22 important, certainly from my perspective, at least -- and 23 I don't speak for the Ministry, -- to -- to separate the 24 roles of the police and the Crown. 25 MR. PAUL CAVALLUZZO: Okay. Now, you all
2391 -- from your evidence, feel that it's a good idea to have 2 these pre-charge screening meetings. 3 And who would -- who would attend? Would 4 it be the police and the Crown attorney, the pathologist, 5 and so on? 6 MR. BRIAN GILKINSON: No, the pre-charged 7 screening, as I understood it -- 8 MR. PAUL CAVALLUZZO: Right. 9 MR. BRIAN GILKINSON: -- to be, was a -- 10 a suggestion that the police consult with the Crowns in 11 these cases, so that we can be -- 12 MR. PAUL CAVALLUZZO: Right. 13 MR. BRIAN GILKINSON: -- assured that 14 charges should be laid and -- against an appropriate 15 individual as soon as possible. And we just -- the 16 initiative basically suggests that we're going to, as a 17 Ministry, encourage the -- 18 MR. PAUL CAVALLUZZO: Right. 19 MR. BRIAN GILKINSON: -- police to engage 20 in that process in this limited -- 21 MR. PAUL CAVALLUZZO: Right. 22 MR. BRIAN GILKINSON: -- situation. I'd 23 -- 24 MR. PAUL CAVALLUZZO: Now, I would assume 25 that -- that the advice that Crown gave the police would
2401 be done after there was a completed and peer reviewed 2 post-mortem report. 3 Is that correct? 4 MR. BRIAN GILKINSON: I assume that the 5 post-mortem report is going to occur within about twenty- 6 four (24) hours of the actual offence itself or the 7 apprehension of -- of the offence -- 8 MR. PAUL CAVALLUZZO: Right. 9 MR. BRIAN GILKINSON: -- and I don't 10 think you're going to see much in the way of contact 11 between police and Crown before that post-mortem report 12 gets completed -- 13 MR. PAUL CAVALLUZZO: And -- 14 MR. BRIAN GILKINSON: -- just in the 15 reality of time. 16 MR. PAUL CAVALLUZZO: Right. And you're 17 aware that these post-mortem reports are peer reviewed by 18 Dr. Pollanen or his or her -- his designate? 19 MR. BRIAN GILKINSON: I'm not sure of 20 that. 21 MR. PAUL CAVALLUZZO: You're not -- 22 you're not aware of that? 23 MR. BRIAN GILKINSON: I -- 24 MR. PAUL CAVALLUZZO: Okay. 25 MR. BRIAN GILKINSON: I don't know
2411 whether or not Dr. Smith's was peer reviewed at that 2 time. Are you suggesting a present practice or -- 3 MR. PAUL CAVALLUZZO: Present practice 4 for the future. 5 MR. BRIAN GILKINSON: Well, that's fine. 6 That's -- that's comforting. 7 MR. PAUL CAVALLUZZO: Would the -- would 8 the advice you give the police be in writing? 9 MR. BRIAN GILKINSON: It could be, as 10 long as I get a brief in writing setting out exactly what 11 background of the investigation there is and what legal 12 opinion they want -- they want the Crown to offer, with 13 respect to RPG or -- 14 MR. PAUL CAVALLUZZO: Right. 15 MR. BRIAN GILKINSON: -- other possible 16 areas of investigation, whatever. 17 MR. PAUL CAVALLUZZO: Now, in terms of 18 that distinction and role that I talked about before, do 19 you think it might be a good idea if a Crown attorney was 20 going to be in -- be involved in the pre-charge 21 screening, that it be a different Crown than the Crown 22 that prosecutes the -- the case? 23 MR. BRIAN GILKINSON: I'm not certain why 24 that would be necessary, unless there's an apprehended -- 25 that -- that somebody apprehends -- there may be a
2421 tendency for the Crown that takes the first view of the 2 case not to change his or her mind as -- as it evolves, 3 and we're under a duty to -- to assess reasonable 4 prospect of conviction all the way through a case. 5 MR. PAUL CAVALLUZZO: Right. 6 MR. BRIAN GILKINSON: So I'm -- I don't 7 know if there's an advantage to that or not. I'm -- I'm 8 more than happy to hear. 9 MR. PAUL CAVALLUZZO: Does anyone 10 disagree with that? 11 MR. EDWARD BRADLEY: I -- I -- well, I'm 12 -- I'm not sure I disagree with it. I think the 13 rationale why it's sometimes the case that you bring in 14 an outside Crown who's not going to be the prosecutor is 15 so that if there's any question about what was discussed, 16 or what the opinion was, or what investigation was 17 suggested as further investigation, that the -- if that 18 person is going to be a witness, that you're not pulling 19 somebody off the case, and that would be, I think, the 20 rationale behind that. 21 MR. PAUL CAVALLUZZO: Right. Ms. 22 Regimbal...? 23 MS. TERRI REGIMBAL: Well, I would just 24 add that it's a bit difficult in smaller offices -- 25 MR. PAUL CAVALLUZZO: Right.
2431 MS. TERRI REGIMBAL: -- where we are 2 disconnected by huge geographic distances to access other 3 people's services. And for example, in my district, as 4 head Crown and the most senior prosecutor, I would be the 5 natural choice for police to come to for legal advice. I 6 am very cautious, however, and when I do provide legal 7 advice, because I've been misquoted over my history, I 8 now -- it's always in writing and I set out the issue and 9 I set out my response and make sure I keep a copy of that 10 memo. 11 MR. PAUL CAVALLUZZO: Right. 12 MS. TERRI REGIMBAL: And it's all -- in 13 likelihood, I will be the one (1) who prosecutes the 14 case, but the types of issues I'm being asked legal 15 advice on often relate to the nat -- which -- what 16 charge, further evidentiary search warrant issues, or 17 that's the general nature of it. 18 MR. PAUL CAVALLUZZO: All right. 19 MS. TERRI REGIMBAL: So I don't really 20 think it hinders me later in the road to reassess the 21 case if there's new developments. 22 MR. PAUL CAVALLUZZO: Okay. Now, I'd 23 like to move on to another area, and that is a second 24 opinion from a pathologist. And -- and even though Dr. 25 Smith or other pathologists who testified on behalf of
2441 the Crown are sometimes called Crown witnesses, the Crown 2 really doesn't have a choice, does he, or her, in terms 3 of which pathologist you have in your case. 4 Isn't that correct? 5 MR. BRIAN GILKINSON: I've never had one. 6 MS. TERRI REGIMBAL: No, we don't have a 7 choice. 8 MR. EDWARD BRADLEY: I've never had one. 9 MR. PAUL CAVALLUZZO: Okay. 10 MS. TERRI REGIMBAL: And even with the 11 experts at the Centre of Forensic Science -- 12 MR. PAUL CAVALLUZZO: Right. 13 MS. TERRI REGIMBAL: -- it's just sent 14 down and it's assigned to whoever's next on the list to 15 get a case. 16 MR. PAUL CAVALLUZZO: And do you know the 17 current practice, in terms of the Crown wanting a second 18 opinion? In other words, if you're not satisfied with 19 the pathologist's report that was given to you or 20 assigned to you from the Coroner's Office, what is the 21 procedure to get a second opinion? 22 Do you know? 23 MS. TERRI REGIMBAL: Well, the procedure 24 is, we have to get approval to get a second opinion -- 25 MR. PAUL CAVALLUZZO: Right.
2451 MS. TERRI REGIMBAL: -- so we have to be 2 able to justify it, we have to be able to provide a cost 3 estimate for how to get names. 4 MR. PAUL CAVALLUZZO: Mm-hm. 5 MS. TERRI REGIMBAL: That depends on the 6 area of specialty that you're going to. 7 MR. PAUL CAVALLUZZO: Right. 8 MS. TERRI REGIMBAL: For example, if we 9 were looking for pathology -- if I was looking for 10 pathology then I probably would call Eric Seibenmorgen at 11 the Coroner's Office and ask for some other names. 12 If I was looking for a pediatric -- 13 MR. PAUL CAVALLUZZO: Right. 14 MS. TERRI REGIMBAL: -- physician, I 15 might contact a pediatrician I knew and ask for some 16 names and look for someone who's reputable, who's got 17 courtroom experience, who would do a competent job. But 18 I don't -- there's no set pattern for me. 19 MR. PAUL CAVALLUZZO: Now if you're an 20 Assistant Crown Attorney there are a couple of 21 bureaucratic hoops; that is, you have to persuade the 22 Crown Attorney; you also have to persuade the Regional -- 23 MS. TERRI REGIMBAL: Yes. 24 MR. PAUL CAVALLUZZO: -- Director of 25 Crown Attorneys.
2461 Now would you agree with me that that kind 2 of decision, the decision to obtain a second report from 3 an expert should be left to the discretion of the Crown 4 prosecuting the case, without having to go through these 5 bureaucratic hoops? 6 MS. TERRI REGIMBAL: I can't agree with 7 that, no, because sometimes someone may be seeking a 8 second opinion unnecessarily and perhaps they just want 9 to unnecessarily buttress the case. I mean, we have to 10 be cognizant of the fact that we're public servants and 11 we don't have unlimited resources and we must -- you 12 know, we must make sure that when we spend them that they 13 are needed in order to -- 14 MR. PAUL CAVALLUZZO: Right. 15 MS. TERRI REGIMBAL: -- come to a just 16 outcome. I have never in twenty-three (23) years had a 17 request for expert opinion denied, ever. 18 MR. PAUL CAVALLUZZO: Okay. 19 MR. BRIAN GILKINSON: There was a -- 20 there was a question with respect to whether or not Dr. 21 Cairns or Dr. Young ever had a Crown actually complain 22 about a pathologist, and apparently they indicated in 23 their experience that hadn't happened. I hope I'm 24 accurate in recounting that -- that portion of -- of 25 what's gone on today.
2471 But with respect to the need for a second 2 opinion, I can recall in a homicide in Peterborough, 3 going to see Dr. Hillsdon Smith because the -- the 4 pathological -- or the post-mortem report listed two (2) 5 causes of death, neither of which made any sense to me. 6 And I went to see Dr. Hillsdon Smith with respect to that 7 and he very promptly referred me out of the Office of the 8 Chief Coroner and down to Dr. David King in Hamilton. 9 I think the fact that I spoke to him and 10 he recognized a clear issue, often paves the way for an 11 Assistant Crown, and I certainly was at that time, having 12 absolutely no trouble making the case to my Crown -- 13 MR. PAUL CAVALLUZZO: All right. 14 MR. BRIAN GILKINSON: -- and he to the 15 Regional Crown at that time, for the funding of that 16 second opinion. 17 MR. PAUL CAVALLUZZO: Okay. Now I'd like 18 to move on to quality assurance. And I think you would 19 all agree that the Crown Attorney or the Assistant Crown 20 Attorney cannot express an opinion on the scientific 21 competence of the forensic pathologist. 22 We all agree on that? 23 MR. BRIAN GILKINSON: Not an informed 24 one, in any event. 25 MR. PAUL CAVALLUZZO: Pardon me?
2481 MR. BRIAN GILKINSON: Not an informed 2 one. 3 MR. PAUL CAVALLUZZO: Okay. Now what I'd 4 like to ask about though is giving a Crown -- an 5 Assistant Crown Attorney giving an opinion concerning the 6 expert witnesses interaction in the criminal justice 7 system. And I'm just -- six (6) or seven (7) things that 8 we've talked about at this Inquiry: Late reports, 9 failure to respond, clarity of evidence, language issues, 10 changing -- changing their opinion when testifying, and 11 testifying outside their expertise. 12 You would agree with me that those are six 13 (6) or seven (7) items that an Assistant Crown Attorney 14 could recognize? 15 MR. BRIAN GILKINSON: I believe so. 16 MR. PAUL CAVALLUZZO: Okay. 17 MR. BRIAN GILKINSON: With respect to the 18 limits on competence though, I made a mistake with 19 respect to whether or not a pathologist could give an 20 opinion with respect to timing, so -- 21 MR. PAUL CAVALLUZZO: Right. 22 MR. BRIAN GILKINSON: -- that last matter 23 may be problematic but the rest of it is just human 24 experience and observation -- 25 MR. PAUL CAVALLUZZO: Okay.
2491 MR. BRIAN GILKINSON: -- I would think. 2 MR. PAUL CAVALLUZZO: And I'm going to 3 put it to you because we're only talking about pediatric 4 homicides, and we've heard there are, I don't know, ten 5 (10) or fifteen (15) per year, so that if you were to -- 6 or if an Assistant Crown Attorney was to be given a form 7 similar to the CFS form to basically fill out at the end 8 of such a -- such a trial, that that would be not 9 bureaucratically onerous. 10 You would agree with that? We're not 11 talking about a lot of examples where this would have to 12 be done in terms of paperwork as -- as it was put. 13 MR. BRIAN GILKINSON: You mean whether 14 there were any issues ascertained or not? 15 MR. PAUL CAVALLUZZO: Yes. No, I'm 16 talking about every pediatric homicide case; this form 17 would be filled out not only by the Crown Attorney but 18 also by the defence counsel. 19 MR. BRIAN GILKINSON: Again, I'm just not 20 certain of what value there is in -- 21 MR. PAUL CAVALLUZZO: Well let me try to 22 help you with that. 23 And what we would contemplate would be 24 that these forms, after they were executed by the Crown 25 attorney and the defence, would go to the Coroner's
2501 Office, in particular the Chief Forensic Pathologist who 2 would have responsibility for forensic pathologists in 3 this province? D o y o u see value in it now? 4 MR. BRIAN GILKINSON: Well, I -- I'm -- 5 the reality has been for a number of years that if you -- 6 if a Crown had a -- one (1) of these cases, there was 7 usually one (1) witness that came to testify in -- in the 8 vast majority of them and that was Dr. Charles Smith. 9 MR. PAUL CAVALLUZZO: Right. 10 MR. BRIAN GILKINSON: And if, in fact, 11 there were no issues with respect to -- to the 12 pathologist's evidence in terms of clarity of speech, 13 that sort of thing, I imagine the supervising pathologist 14 is just going to get a lot of paper that really doesn't 15 tell him much. I would think that -- 16 MR. PAUL CAVALLUZZO: But if you had -- 17 MR. BRIAN GILKINSON: -- when there is an 18 issue -- when there is an issue that there's a clear 19 responsibility to report that to your supervisor and a -- 20 MR. PAUL CAVALLUZZO: Right. 21 MR. BRIAN GILKINSON: -- dual reporting - 22 - and I'm sorry if I have to plug those initiatives, -- 23 MR. PAUL CAVALLUZZO: Right. 24 MR. BRIAN GILKINSON: -- but I think -- 25 MR. PAUL CAVALLUZZO: Mm-hm.
2511 MR. BRIAN GILKINSON: -- they're the 2 kinds of things that don't -- they're the kinds of red 3 lights that people don't drive through. 4 MR. PAUL CAVALLUZZO: But I'm putting it 5 to you, Mr. Gilkinson, that if that form was filled out 6 in the early '90s and throughout the 1990s, that the -- 7 that the Coroner's Office would have discovered some of 8 the failings of Dr. Smith, whether it be late reports, 9 changing his testimony, and so on. 10 Don't you agree with that? 11 MR. BRIAN GILKINSON: Well, certainly I 12 still think even today there needs to be some 13 communication between the Ministry of the Attorney 14 General and the Office of the Chief Coroner on those 15 issues. And I assume that would come either through the 16 initiatives here or some other initiatives or 17 recommendations that this Inquiry may -- may deal with. 18 I worry about -- I worry about seeing a 19 form that doesn't tell you anything, if we're talking 20 about an ordinary pathologist doing a -- a competent job 21 at a trial and seeing those things coming in the way 22 sometimes Crowns get the reports on post-mortem 23 examination and 90 percent of the cases never result in a 24 criminal charge and never really reading them, kind of 25 filing them under G.
2521 MR. PAUL CAVALLUZZO: Well, once again 2 we're talking about pediatric homicide cases. 3 MR. BRIAN GILKINSON: Yes, we are. 4 MR. PAUL CAVALLUZZO: And we're talking a 5 very limited number of forms to be filled out. 6 MR. BRIAN GILKINSON: Well, certainly 7 that's something for -- for the -- the Commission and -- 8 and -- 9 MR. PAUL CAVALLUZZO: Okay. 10 MR. BRIAN GILKINSON: -- the Attorney 11 General's Ministry to consider. 12 MR. PAUL CAVALLUZZO: Now, the -- the 13 next thing -- and I'm -- I'm talking about some of the 14 initiatives now, and -- and I guess it's Initiative 5 15 talks about a -- a Criminal Law Division lead and 16 resource team composed of eight (8) persons that would be 17 advisory only. 18 I want to ask you about that. And I'm 19 going to ask you if you'd consider going one (1) step 20 further then the government's initiative. And what I'm 21 going to suggest to you would be maybe a better 22 initiative would be the following, and that is, we would 23 still have a lead, Criminal Law Division lead, but we 24 would have a Senior Crown from each Region who would be 25 part of the this advisory panel or resource team, or
2531 whatever you want to call it. 2 They would have the same responsibilities 3 in terms of responsibility for education and training on 4 these issues within the Criminal Law Division. And 5 moreover, in the transitional period of two (2) years 6 after this report that the cases would be prosecuted by 7 the Senior Regional Crown from the region in which the 8 case arises along with a Crown attorney, assistant Crown 9 attorney, who would assist. 10 And that after -- hopefully, after a two 11 (2) year period, a body of expertise could be -- could be 12 developed and -- and the local Crowns could prosecute the 13 cases. Would you consider that to be feasible, that kind 14 of team? So it would be more than advisory. 15 There would be an initial period when they 16 would prosecute. 17 MS. TERRI REGIMBAL: Could I just have a 18 quick response from the northern perspective. I mean, I 19 think that would be almost unworkable. 20 MR. PAUL CAVALLUZZO: Mm-hm. 21 MS. TERRI REGIMBAL: You'd be asking 22 someone to say drive a 1,000 kilometres to Thunder Bay 23 and stay there for two (2) months -- 24 MR. PAUL CAVALLUZZO: Right. 25 MS. TERRI REGIMBAL: -- to prosecute it
2541 when Thunder Bay has extremely experienced senior 2 assistant Crown attorneys, as does Kenora. 3 MR. PAUL CAVALLUZZO: Right. 4 MS. TERRI REGIMBAL: And I think it would 5 be an unnecessary cost, and I think it would be an 6 unnecessary dedication of resources. 7 MR. PAUL CAVALLUZZO: See that -- and 8 that's one (1) of the concerns that we're going to have 9 to have at the end of the day in terms of this panel 10 because for the most part you're from small offices. 11 You're from Timiskaming. Mr. Bradley, you're from 12 Napanee -- 13 MR. EDWARD BRADLEY: Correct. 14 MR. PAUL CAVALLUZZO: -- and Mr. 15 Gilkinson, you're from Peterborough? 16 MR. BRIAN GILKINSON: Right. 17 MR. PAUL CAVALLUZZO: So they are smaller 18 offices, and -- and that's obviously a concern that we 19 have. But would you not agree with me in a larger centre 20 or larger centres, that this kind of -- for a 21 transitional period, this kind of team -- this kind of 22 team concept -- you've got it for guns and gangs, why 23 can't you trans -- transfer it into this kind of homicide 24 where we're dealing with the most vulnerable group in 25 society, that is children?
2551 MR. BRIAN GILKINSON: I don't -- I don't 2 know that there's anything -- certainly with dealing with 3 pediatric homicide cases presents some unique challenges 4 with respect to what experts can legitimately do to 5 assist on issues -- if we're talking about this 6 definition of whether or not it actually was a crime, or 7 the time at which, or the opportunity somebody had to -- 8 to commit it. 9 MR. PAUL CAVALLUZZO: Right. 10 MR. BRIAN GILKINSON: But apart from 11 that, I think it's a situation where there are enough 12 educational initiatives in place and enough experience 13 that most Crowns in the province with some significant 14 experience can undertake these prosecutions. 15 You were talking about building an 16 expertise throughout the province to prosecute these. I 17 think there is sufficient expertise in most offices in 18 this province that -- that come to my mind, to be able to 19 do a competent job of prosecuting -- 20 MR. PAUL CAVALLUZZO: Right. 21 MR. BRIAN GILKINSON: -- these kinds of 22 cases. I think what the initiative addresses is the 23 ability to tap in to a limited number of people, wherever 24 they're located, that can meet, that can brainstorm, and 25 advise with respect to the particular circumstances of
2561 the case. 2 I don't know that we wanted to envisage 3 spreading all of these people throughout the province as 4 opposed to having a group that could easily meet, easily 5 brainstorm, and advise the prosecuting Crown. 6 MR. PAUL CAVALLUZZO: But the idea is to 7 spread the expertise across the province, not the -- 8 MR. BRIAN GILKINSON: The idea is to make 9 the advice that allows for competent prosecutions to be 10 disseminated across the province. 11 MR. PAUL CAVALLUZZO: Right, okay. 12 Then -- 13 MR. EDWARD BRADLEY: I think we have to 14 become very careful about not being too specialized. And 15 I think the important factors, in the initiative for 16 example are -- are setting up a -- a procedure whereby 17 you can have people with experience that you go to, which 18 is set out in there and to lead. 19 But I would think that most Crowns that 20 are capable of prosecuting a homicide case -- 21 MR. PAUL CAVALLUZZO: Mm-hm. 22 MR. EDWARD BRADLEY: -- without 23 assistance, should be able to prosecute a pediatric 24 homicide. 25 MR. PAUL CAVALLUZZO: And I guess the --
2571 the concern that underlies this is -- is what we've heard 2 in terms of the evolving sciences, the -- the inadequacy 3 of the interactions between pathologists and Crown 4 attorneys, and that's -- that was the idea. 5 But I -- I want to leave that because 6 we'll come back that in terms of our -- our 7 recommendations. There's really one (1) final area -- 8 Mr. Commissioner, I don't know if I'm running out of 9 time? 10 COMMISSIONER STEPHEN GOUDGE: You are, 11 but go ahead. 12 13 CONTINUED BY MR. PAUL CAVALLUZZO: 14 MR. PAUL CAVALLUZZO: Okay. What I want 15 to talk -- ask a couple of questions about what we've put 16 forward before Dr. Pollanen, and that is to have a roster 17 -- have a roster of forensic pathologists, and this would 18 lis -- just let me give you the scenario and ask you a 19 question about it. 20 And that is that the -- the Ontario 21 Coroner's Office, through the Chief Forensic Pathologist 22 would be responsible for maintaining a roster of 23 qualified and reliable pathologists. 24 And that the listing of the patho -- 25 pathologist, or the de-listing would be done by Dr.
2581 Pollanen, or whoever the Chief Forensic Pathologist was, 2 -- it wasn't obviously with notice to the public when 3 this occurs. 4 And obviously because of the lack of 5 qualified pathologists today, we would have to have a 6 roster from experts outside of Ontario and eve -- perhaps 7 even outside of Canada that would be on this roster. 8 And the other -- the other important point 9 would be that defence counsel would have access to this 10 roster of expert pathologists, and the cost would be 11 assumed by the state. 12 If the defence wanted to have a 13 pathologist outside this roster, the defence would assume 14 the cost. And -- and the Association will be putting 15 forward that recommendation, because in their view, it 16 takes away this idea of the Crown pathologist or the 17 defence pathologist, and just deals with pathologists as 18 scientists. 19 And -- and I'm going to ask you, from your 20 practical perspective with all of your years of 21 experience, whether that would make sense -- practical 22 sense -- into the future. 23 MR. BRIAN GILKINSON: I don't know what 24 the -- 25 MR. PAUL CAVALLUZZO: Mr. Gilkinson...?
2591 MR. BRIAN GILKINSON: I don't know what 2 the resources are to -- to address that and -- and enact 3 it. I know it's directed primarily to the Office of the 4 Chief Coroner to maintain the roster. 5 And I really don't care how we get to a 6 synthesis of Crown and defence positions on any given set 7 of circumstances; I certainly think it could be open for 8 -- for consideration, but again, that's probably more for 9 the Office of the Chief Coroner to determine if it's 10 feasible. 11 MR. PAUL CAVALLUZZO: And what -- 12 MR. BRIAN GILKINSON: You might -- 13 MR. PAUL CAVALLUZZO: I'm sorry, go on. 14 MR. BRIAN GILKINSON: Just one last -- 15 MR. PAUL CAVALLUZZO: All right. 16 MR. BRIAN GILKINSON: -- one last point. 17 I don't know whether or not -- it may be that there are 18 pathologists that can do the post-mortem work on a 19 particular case and -- and some kind of a coincidental 20 team of -- of consulting pathologists, again, for -- of a 21 advisory capacity -- 22 MR. PAUL CAVALLUZZO: Right. 23 MR. BRIAN GILKINSON: -- to ensure that 24 the pathologist is on the right track in something 25 parallel to what the Crown initiative has to say. You
2601 could certainly access leading people outside the 2 country, if that's where you had to go, at a -- at a 3 lower cost, but I'm not here to start talking about 4 economics, and those are just a couple of suggestions or 5 considerations. 6 MR. EDWARD BRADLEY: Okay, yeah. I 7 think, leaving aside the economic aspect, as well, 8 because that's not for me to say who should spend money 9 on what, but certainly as a -- as a Crown attorney and 10 having dealt with a number of situations where I'd like 11 to have access to people who have expertise, any database 12 where a credible organization, such as the Chief 13 Coroner's Office, is going to ensure that people that are 14 properly accredited are put on that database and their 15 expertise and how you would able to contact them. 16 I would personally think that's of 17 benefit. There is a fundamental question, though, we 18 have to look at. 19 MR. PAUL CAVALLUZZO: And what is that? 20 MR. EDWARD BRADLEY: And that is, it's my 21 understanding at present, there still is no Ontario, or 22 for that matter, Canadian accreditation organization that 23 accredits forensic pediatric pathologists; you have to go 24 outside the country to -- 25 MR. PAUL CAVALLUZZO: I would agree to
2611 that, yes. 2 MR. BRIAN GILKINSON: Yeah. 3 MR. PAUL CAVALLUZZO: And Ms. Regimbal? 4 MS. TERRI REGIMBAL: I don't really have 5 anything to add; I agree with what -- 6 MR. PAUL CAVALLUZZO: Okay. 7 MS. TERRI REGIMBAL: -- Mr. Gilkinson and 8 Mr. Bradley have said. 9 MR. PAUL CAVALLUZZO: Okay, all right. 10 Thank you. Thank you, Commissioner. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 12 Cavalluzzo. 13 Ms. Twohig...? 14 MS. KIM TWOHIG: No questions, thank you. 15 COMMISSIONER STEPHEN GOUDGE: Mr. 16 Sandler...? 17 18 RE-DIRECT EXAMINATION BY MR. MARK SANDLER: 19 MR. MARK SANDLER: It's a good sign when 20 I stand up; it means your ordeal is almost over. I am 21 going to ask you a few questions about some of the policy 22 documents that exist, and through the assistance of your 23 own counsel, I have obtained several of these documents 24 that maybe we can have a look at. 25 Before we go to the one (1) that's on the
2621 screen right now, perhaps I'll ask the Registrar to put 2 up again the summary of Criminal Law Division 3 Initiatives. 4 5 (BRIEF PAUSE) 6 7 MR. MARK SANDLER: And, Mr. Gilkinson, 8 these questions are going to be directed to you because 9 you were asked in cross-examination what, if any, 10 disclosure implications flow from -- from these 11 initiatives, and -- and I want to follow up on some of 12 your answers, if I may. 13 We see from Item 4 here: 14 "For cases where there's adverse 15 judicial comment of a pediatric 16 forensic pathology expert witness or 17 the prosecuting Crown has procedural or 18 evidentiary issues with such a witness, 19 the division will develop and implement 20 a mandatory dual reporting process for 21 the prosecuting Crown to their 22 supervisor and the CLD lead for child 23 homicide cases." 24 Was there discussion within your committee 25 as to what form the reporting process would take, so
2631 that, for example, would it be accompanied by transmittal 2 to the supervisor and to the CLD lead of the reasons for 3 judgment where -- where they're operative, or the 4 transcripts that would obtain where they're operative? 5 MR. BRIAN GILKINSON: I don't really 6 recall whether or not we would be transmitting reasons 7 for judgment until we had some reporting back or some 8 contact back indicating what is the nature of the further 9 information that the lead or the supervisor would want. 10 I certainly envisage that if we're talking 11 about adverse judicial comment in a transcript that the 12 best way of getting it accurate is to certainly submit 13 those transcripts if and when they're available. But I 14 don't know that it was wholly discussed in terms of the 15 nature of the reporting up or the nature of the 16 documentation that would accompany it at the point of 17 reporting. 18 MR. MARK SANDLER: And I'm not going to 19 ask you to speak for the Ministry, but would you agree 20 with me to this extent, that certainly as a follow-up to 21 the initiative, consideration is going to be -- is going 22 to be given to what that mandatory dual reporting process 23 entails, including what kind of information should be 24 provided orally and in writing as part of that process? 25 MR. BRIAN GILKINSON: Well, I think the
2641 initial report needs to be in writing, but that is 2 something that would be drafted by the Crown. But I 3 don't think we're going to be asking people to wait until 4 transcripts are available before that report is made 5 simply because we would like to get that issue before the 6 -- before the Ministry as soon as possible. 7 MR. MARK SANDLER: Right. But, I mean, 8 implicit in -- in an effective reporting process and 9 acting upon it, I would suggest at some point, if there 10 is truly adverse judicial comment that is of 11 significance, or there are truly procedural or 12 evidentiary issues with the witness, would be some 13 consideration to obtaining the judgment itself or any 14 transcripts that reflect -- 15 MR. BRIAN GILKINSON: I -- 16 MR. MARK SANDLER: -- the concerns of the 17 Crown? 18 MR. BRIAN GILKINSON: I expect that's 19 going to be in the normal course of events; that there is 20 going to be a request or in fact, that there will be -- 21 there will be a direction that you'll order that as soon 22 as you become aware of it or certainly seek the Crown's 23 approval to order that. 24 MR. MARK SANDLER: Right. And then when 25 -- when one goes up to Item 2 which is that the CLD Net
2651 that involves a searchable database. Was there any 2 discussion as to whether or not, in addition to the 3 identification and recording of all child homicide cases, 4 that the searchable database would include, where 5 appropriate, the kinds of judgments, reasons for 6 judgment, or transcripts that would be obtained as part 7 of the followup process, I would expect, under Item 4? 8 I'm exploring the breadth of the -- 9 MR. BRIAN GILKINSON: I don't -- 10 MR. MARK SANDLER: -- discussion with the 11 committee. 12 MR. BRIAN GILKINSON: Yes. I don't -- I 13 think quite frankly, the internal searchable database was 14 essentially to get tombstone information that could be 15 scanned relatively easily to determine: Was this expert 16 involved in a particular case? If so, who was the Crown? 17 Who was the person that you should contact with respect 18 to the experience; positive or negative with respect to 19 that. 20 With respect to whether or not it was tied 21 in to the dual reporting process in number 4, I don't 22 believe that was contemplated. But obviously the 23 information with respect to -- to number 4 would be 24 disseminated in some fashion. And I'm sure that the 25 Crown, in such a case, would communicate that to the
2661 inquiring Crown. 2 MR. MARK SANDLER: Okay. So assuming for 3 the purposes of our discussion that it's part of the 4 process that's developed following this initiative. 5 There will be some circulation of the -- of the relevant 6 transcripts or of the relevant reasons for judgment or 7 some summary of either of them, and -- and that's yet in 8 the works, I understand, so I'm not sure one can be more 9 precise than that. 10 MR. BRIAN GILKINSON: I can't be more 11 precise. I can tell you -- 12 MR. MARK SANDLER: Fair enough. 13 MR. BRIAN GILKINSON: I can tell you that 14 there are better minds at the Ministry that can probably 15 address some of these concerns than mine. 16 MR. MARK SANDLER: All right. I just 17 wanted to highlight the -- the issue, and we're going to 18 be talking with some of the Crown Counsel in the policy 19 round tables and undoubtedly, the topic will come up. 20 But coming now to the disclosure issue, 21 and that is that -- that as I understand the existing 22 policies for the Crown Law Office, part of the policy is 23 that if the Crown Counsel on an individual case has in 24 his or her possession transcripts of a defence expert or 25 a judgment that relates to a defence expert that that
2671 Crown intends to use at trial, that part of the 2 disclosure obligation is to provide that material to the 3 defence. 4 And you're aware of that, I take it? 5 MR. BRIAN GILKINSON: Yes. 6 MR. MARK SANDLER: So could you see as 7 part of the disclosure obligation that might flow, and I 8 don't want to put it any higher than that because I just 9 want to -- to raise the systemic issue. 10 But part of the disclosure obligation that 11 might flow from the initiative that you've described here 12 is -- is an analogist disclosure obligation that where 13 the transcripts or the reasons for judgment that reflect 14 adversely upon a Crown expert are available within the 15 Crown system, those might be disclosable as on the -- on 16 the same rationale that might obtain to -- to the current 17 existing policy. 18 MR. BRIAN GILKINSON: That could well be 19 the case. 20 MR. MARK SANDLER: Okay. Now, you were 21 asked some questions about what policies do exist within 22 the Crown policy manual that deal with the scientists, so 23 to speak, and it was pointed up to you that there was a 24 fairly lengthy policy that was in place at one point in 25 time, and then there was a narrower policy; a one (1)
2681 page policy that seemed to follow in time. 2 And -- and I've asked your counsel, and 3 they have provided what we understand to be the latest -- 4 the latest policy word on this subject, which -- which 5 I'm going to suggest to you -- and I know I tried to 6 provide you a hard copy shortly before -- incorporates 7 the thoughts in the longer policy and -- and seems to 8 build upon it. 9 Is -- is this, as you understand it -- the 10 document that I'm showing you -- the current policy that 11 is in place that addresses these issues? 12 MR. BRIAN GILKINSON: That's my 13 understanding now. 14 MR. MARK SANDLER: Okay. All right. And 15 -- and lastly, to you, Mr. Gilkinson, I'm just going to 16 show you one (1) -- one (1) document again I just 17 received from your counsel, so if you're not entirely 18 conversant with it blame them, not me. 19 But -- but we won't -- we won't expect 20 perfection in this regard, but this appears to be a -- a 21 policy that exists within the Crown policy manual that 22 the subject of which is Child and Family Services 23 Amendment Act, Child Welfare Reform 1999. 24 And it appears to have been incorporated 25 into the new Crown policy manual as of March 31st of
2691 2006. And I can tell you that it's -- it's largely 2 composed of -- because you don't have the hard copy in 3 front you -- it's largely composed of discussion of the 4 amendments to the child protection legislation and the 5 obligation upon the Crown as part of the duty to report 6 that exists under the legislation. All right. 7 MR. BRIAN GILKINSON: Under Section 72? 8 MR. MARK SANDLER: Yeah. 9 MR. BRIAN GILKINSON: Yes, that's not 10 only a duty on the Crown, but a lot of professionals that 11 have contact -- 12 MR. MARK SANDLER: Correct. 13 MR. BRIAN GILKINSON: -- with this 14 situation. 15 MR. MARK SANDLER: And -- and I know you 16 made reference to the existence both of the duty and your 17 familiarity with it and in responding to questions from 18 Ms. Fraser. I just want to take you to page 4 of the 19 document, if I may. And we're looking at it together for 20 the first time. 21 I've just looked at it, literally, a few 22 seconds before I'm burdening you with it. So if we can 23 look at page 4, we see under Protocol that: 24 "The Crown attorney in each 25 jurisdiction is encouraged to develop a
2701 protocol on reporting children in need 2 of protection with the Children's Aid 3 Society, the local police service, and 4 the Victim Witness Assistance Program 5 where available. While the initial 6 report may be made by telephone, the 7 report should be in writing with copies 8 to the Society and the Crown brief. 9 Generally, due to concerns related to 10 freedom of information, a copy of the 11 Crown brief should not be provided 12 along with the report. Rather where 13 portions of the brief are considered to 14 be potentially relevant to a report of 15 abuse, Crown counsel should refer the 16 Children's Aid Society to the police. 17 The written report should include the 18 names and telephone numbers of those 19 persons who may be helpful in providing 20 information relating to the child, 21 including the names of involved police 22 officers. A draft form is attached and 23 may be modified to suit local 24 conditions." 25 Now, so just stopping there for a moment.
2711 It would appear that the Crown policy manual as it 2 currently exists contemplates the encouragement of Crown 3 attorneys in each jurisdiction to develop a protocol that 4 relates to the obligation to report children in need of 5 protection. 6 And provide some guidance as to how 7 portions of the Crown brief should not -- might be 8 provided through the auspices of the police to fulfill 9 the duty to report. Is that a fair reading of what we've 10 just seen so far? 11 MR. BRIAN GILKINSON: It is a fair 12 reading. 13 MR. MARK SANDLER: All right. And -- and 14 what I want to ask you is: One (1) of the issues that 15 has come up here -- and -- and you were either the 16 lightening rod or the -- or the vehicle through which 17 some of this discussion took place -- is -- is not just 18 the interchange between child protection agencies and the 19 Crown over the duty to report, but also the interchange 20 that might take place during the currency of a child 21 protection proceeding to keep the child protection 22 agencies and the Family Court apprised of the 23 developments, whether inculpatory or exculpatory, in 24 relation to -- to someone who might be looked at in 25 connection with -- with parenting, right?
2721 MR. BRIAN GILKINSON: Yes, I recall that. 2 MR. MARK SANDLER: And what I want to ask 3 you is: Could you see some benefit for -- for Crown 4 attorneys in each jurisdiction -- and Mr. Bradley may 5 have something along these lines already, and we'll have 6 a look at the protocol that does exist in his 7 jurisdiction that he made reference to -- but can you see 8 some value to Crown attorneys in each jurisdiction being 9 encouraged to develop a protocol that addresses what I am 10 going to suggest to you a thorny and often misunderstood 11 issue? 12 And that is: The extent to which 13 Children's Aid Societies and Crown attorneys can 14 communicate on these issues. 15 What can the Children's Aid Society 16 provide to the Crown? What does the Crown do with that 17 information? What, if any, privacy issues arise as a 18 result of the communication from the Children's Aid 19 Society? What communication should be made by Crown 20 attorneys to the Children's Aid and under what 21 circumstances; and some of the timeliness issues that Ms. 22 Fraser raised that Crowns could be made alive to. 23 Would you see some value in a protocol 24 being developed along those lines? 25 MR. BRIAN GILKINSON: I see a great value
2731 in that happening. Privacy issues seem to be a real 2 issue. 3 On a case-by-case basis, if you're 4 requesting information from the Children's Aid Society or 5 the Children's Aid Society is requesting the Crown brief 6 or the police brief from the police, it's often the case 7 where neither entity wants to share everything in their 8 possession. 9 There are protection of privacy interests 10 that need to be taken into account, so if we had more 11 direction with respect to what would be workable, that 12 would be -- that would be fine. 13 And in other circumstances, there have 14 been -- been exceptions in terms of the sharing of 15 information between various agencies in domestic 16 violence. I'm sure something similar could -- could work 17 with respect to the sharing of information between the 18 Children's Aid Society and the prosecution or the police. 19 MR. MARK SANDLER: All right. And, Mr. 20 Bradley, I wasn't sure if I understood the response that 21 you made to someone else's question. 22 Is that the kind of protocol that 23 currently exists in your jurisdiction or is it the -- or 24 is it the more narrow protocol that -- that is 25 contemplated in the Crown Policy Manual that I just read
2741 out or some combination? 2 MR. EDWARD BRADLEY: Yeah. The protocol 3 that we have, it was signed about four (4) years ago -- 4 maybe five (5) years ago -- and it's a -- a fairly broad 5 protocol but it includes the passage of information 6 between the -- the signatories which are the ones that I 7 -- I indicated. 8 And so it is -- it is broader, but it does 9 include this information. 10 The other thing that you said as to how 11 that -- how Children's Aid can help the Crown. 12 Certainly at the bail stage, it's very important to have 13 information as far as the family, especially relating to 14 the children, and even at the later stages; and how we 15 keep contact. 16 In smaller communities that's not so much 17 an issue. You're more easily able to talk directly with 18 one another and sort of keep one another up-to-date. 19 And it's not uncommon in domestic violence 20 cases -- sexual assault cases -- where there's family 21 members involved -- serious assault cases, and yes, 22 homicide cases -- where we talk to one another and, you 23 know, that's one (1) way the exchange of information. 24 It may not be feasible when you're in 25 Toronto but certainly in places like Napanee and -- I
2751 don't propose to speak for Peterborough, but... 2 MR. MARK SANDLER: Okay. And just to be 3 clear, Ms. -- Ms. Fraser kindly asked me to clarify this 4 -- this. 5 These documents that I've referred you to, 6 both on science and -- and on the Children's Aid 7 legislation, they're entitled "Practice Memorandum," but 8 as I understand it, they form part of a Crown Policy 9 Manual and are available to the public. 10 Am I right as to that? 11 MR. BRIAN GILKINSON: Practice Memorandum 12 are not confidential instructions. They're confidential 13 memorandum and as I understand it, that's available. I 14 stand to be corrected with respect to that but practice 15 memorandum usually are -- 16 MR. MARK SANDLER: All right. And are 17 they -- 18 MR. BRIAN GILKINSON: -- or as I 19 understand it. 20 MR. MARK SANDLER: -- part of -- well, 21 actually, this one we know it is because it says at the 22 bottom of this page, "Practice Memorandum" -- you -- you 23 passed the test, Mr. Gilkinson. 24 MR. BRIAN GILKINSON: Okay. 25 MR. MARK SANDLER: Practice Memorandum
2761 are not considered to be confidential and may be given 2 even to defence counsel or other interested parties upon 3 request. 4 MR. EDWARD BRADLEY: I think what -- I 5 think what Mr. Gilkinson's talking about, we have -- we - 6 - we have the Crown policy manual. We have Practice 7 Memorandum which are a way of updating existing policies. 8 And then we do have confidential 9 memoranda, and it's the confidential memoranda that are 10 just for internal use only, and those are the ones that 11 are -- by their -- what the words says are not be 12 disclosed until we're authorized to do so by the higher 13 ups. 14 MR. MARK SANDLER: And -- and Practice 15 Memorandum that aren't at first instance in the Crown 16 policy manual, do they make their way into a Crown policy 17 or how -- how are they retained and kept within the 18 individual Crown offices? 19 MR. EDWARD BRADLEY: There -- there is -- 20 there is a database which we get notified when new a 21 Practice Memorandum comes up, it goes on -- it goes onto 22 what's called our CLD Net, Criminal Law Division Net, and 23 there is a way of searching them and you're told by -- by 24 the very nature of the Practice Memorandum that they're 25 to be considered as part of the existing policy and to be
2771 incorporated on that basis. 2 MR. MARK SANDLER: Okay. And the last 3 question I have is for Ms. Regimbal, and I -- you were 4 asked in cross-examination by -- by one (1) of the 5 counsel for party here that -- whether or not it would 6 have been helpful for you to have sent the judgment of 7 Justice Dunn along to another Crown counsel or to the 8 Crown law office. 9 And you said that -- that you would have 10 found it helpful, perhaps, in hindsight to send it along 11 to the -- to the Chief Coroner's Office, but you didn't 12 necessarily agree with the suggestion that it ought to 13 have been sent or that you should have sent it at the 14 time to -- to the Crown law office or -- or elsewhere 15 within the Crown system. 16 And -- and what I'm trying to do is 17 reconcile that with the new initiative, because as I hear 18 it, and you correct me if I'm wrong, under the new 19 initiative, one would expect that as part of the 20 mandatory reporting obligation, you would be directed to 21 have reported that judgment to -- to both your 22 supervisor, who would have already known about it, Mr. 23 Thomas, as well as to the other designated individual 24 under the policy, and that might very well bring with it 25 a request that the judgment itself be sent down.
2781 And if there's value in the initiative -- 2 MS. TERRI REGIMBAL: Yes. 3 MR. MARK SANDLER: -- can't one agree 4 that there would be value in -- in having sent it, and 5 it's not a criticism of you at the time, but having sent 6 it -- 7 MS. TERRI REGIMBAL: Well, who would I 8 send -- 9 MR. MARK SANDLER: -- to others within 10 the Crown system? 11 MS. TERRI REGIMBAL: I -- I -- first of 12 all -- yeah. 13 MR. MARK SANDLER: I just wanted to 14 understand your answer. 15 MS. TERRI REGIMBAL: Yeah, well, I 16 thought it was when it wouldn't be helpful. There was no 17 person to send it to in 1991. There wasn't a child abuse 18 team, there wasn't one -- 19 COMMISSIONER STEPHEN GOUDGE: There 20 wasn't the lead back then, right. 21 MS. TERRI REGIMBAL: There wasn't a lead. 22 My superior, Mr. Thomas, had the case. You know, I -- 23 when -- the issue was, was it helpful? How would I send 24 it? How would everyone know about it? 25 There was whatever -- four (4) or five
2791 hundred (500) of us -- we didn't have a computer where 2 you could just click send and send to everyone like we do 3 nowadays. So the initiative is great and had this been 4 in place, obviously it would have been great to have sent 5 it so that everyone could have had it. 6 But the issue -- the way your question was 7 phrased, would it have been helpful? I don't know if it 8 would have been helpful because there was really nowhere 9 to send it, it -- 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Okay. 13 MS. TERRI REGIMBAL: -- it would just be 14 sent off and sit in someone's desk at 720 -- or 18 King 15 Street. 16 MR. MARK SANDLER: Right. 17 MS. TERRI REGIMBAL: You know, I -- I 18 just -- I think I was looking at it more from that, not 19 would it be helpful today. I think it's an excellent 20 idea and the initiative -- 21 MR. MARK SANDLER: More helpful at the 22 time given the logistics of the situation. 23 MS. TERRI REGIMBAL: The logistics -- 24 MR. MARK SANDLER: I understand. 25 MS. TERRI REGIMBAL: -- and the fact that
2801 there was no system set up to deal with the -- the 2 receipt of negative judgments about a very specialized 3 area of expertise. 4 So when I thought it would be more helpful 5 to the Coroner's Office because then you would have had 6 someone to send it to; someone who had authority to do 7 something about it and to make the appropriate changes, 8 and someone who was now made aware of an issue that 9 affected one (1) of their employees. 10 MR. MARK SANDLER: All right. Thank you 11 very much. Those are all my questions. 12 COMMISSIONER STEPHEN GOUDGE: Mr. 13 Sandler, do we have copy of Mr. Bradley's protocol? 14 MR. MARK SANDLER: I've already made a 15 request for it and -- 16 MR. EDWARD BRADLEY: I'll see if I can 17 dig one (1) up for you, Mr. Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Yes. And 19 I'm not sure I understand, did you individually create it 20 or was it created -- 21 MR. EDWARD BRADLEY: It was a joint 22 effort, as I indicated, with Family and Children's 23 Services, the police, victim, witness and -- and the 24 Crown's office. 25 COMMISSIONER STEPHEN GOUDGE: You for the
2811 Crown's office? 2 MR. EDWARD BRADLEY: Yes, yes -- 3 COMMISSIONER STEPHEN GOUDGE: Great. 4 Well we'd be grateful if you could provide us with a 5 copy. 6 MR. MARK SANDLER: Through the magic of 7 blackberry and emails, the request was being made, even 8 as Mr. Bradley was uttering the words. 9 COMMISSIONER STEPHEN GOUDGE: Yes, well 10 that's great. That's great. 11 On behalf of all of us, let me thank the 12 three (3) of you for giving us your time and your 13 experience, and your thoughts. They are very helpful. 14 So thank you for coming and -- 15 MR. BRIAN GILKINSON: You're quite 16 welcome, Commissioner. 17 MS. TERRI REGIMBAL: You're welcome. 18 COMMISSIONER STEPHEN GOUDGE: -- you each 19 have a safe trip home. We'll rise then until 9:30 20 tomorrow morning. 21 22 (WITNESSES STAND DOWN) 23 24 --- Upon adjourning at 4:30 p.m. 25
2821 2 3 Certified Correct 4 5 6 7 8 ________________ 9 Rolanda Lokey, Ms. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25