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 24th, 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 ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich (np) ) 12 13 Brian Gover ) Office of the Chief Coroner 14 Luisa Ritacca (np) ) for Ontario 15 Teja Rachamalla ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron ) 20 Grant Hoole (np) ) 21 22 William Carter (np) ) Hospital for Sick Children 23 Barbara Walker-Renshaw(np) ) 24 Kate Crawford (np) ) 25
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Veena Verma ) Association 4 Mara Greene ) Criminal Lawyers' 5 Breese Davies (np) ) Association 6 Joseph Di Luca (np) ) 7 Jeffery Manishen (np) ) 8 9 James Lockyer (np) ) William Mullins-Johnson, 10 Alison Craig ) Sherry Sherret-Robinson and 11 Phillip Campbell (np) ) seven unnamed persons 12 Peter Wardle (np) ) Affected Families Group 13 Julie Kirkpatrick (np) ) 14 Daniel Bernstein (np) ) 15 16 Louis Sokolov (np) ) Association in Defence of 17 Vanora Simpson ) the Wrongly Convicted 18 Elizabeth Widner (np) ) 19 Paul Copeland (np) ) 20 21 Jackie Esmonde (np) ) Aboriginal Legal Services 22 Kimberly Murray (np) ) of Toronto and Nishnawbe 23 Sheila Cuthbertson (np) ) Aski-Nation 24 Julian Falconer (np) ) 25
41 APPEARANCES (cont'd) 2 Suzan Fraser ) Defence for Children 3 ) International - Canada 4 5 William Manuel (np) ) Ministry of the Attorney 6 Heather Mackay (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 Michelle Booth (np) ) Robert Wood 20 21 22 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 BRIAN RICHARD BEGBIE, Sworn 4 GREGORY BRUCE MACLELLAN, Sworn 5 6 Examination-In-Chief by Mr. Mark Sandler 6 7 Cross-Examination by Ms. Erica Baron 178 8 Cross-Examination by Ms. Alison Craig 184 9 Cross-Examination by Mr. Peter Wardle 201 10 Cross-Examination by Ms. Mara Greene 242 11 Cross-Examination by Mr. Brian Gover 252 12 Cross-Examination by Ms. Kim Twohig 258 13 Re-Direct Examination by Mr. Mark Sandler 265 14 15 16 Certificate of transcript 268 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 10:03 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Mr. Sandler...? 7 MR. MARK SANDLER: Good morning, 8 Commissioner. This morning we have two (2) witnesses, 9 Sergeant Greg MacLellan of the Ontario Provincial Police 10 and Inspector Brian Begbie of the Kingston Police Service 11 and I'd ask that they be sworn, please. 12 13 BRIAN RICHARD BEGBIE, Sworn 14 GREGORY BRUCE MACLELLAN, Sworn 15 16 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 17 MR. MARK SANDLER: Good morning, 18 gentlemen. 19 MR. BRIAN BEGBIE: Good morning, sir. 20 MR. MARK SANDLER: What I intend to do is 21 elicit some evidence from each of you about your 22 backgrounds and ranks with your respective police 23 services, and then I will proceed to examine Sergeant 24 MacLellan about one (1) of the cases in which he was 25 involved, which we call the Joshua case here, and then I
71 will examine Inspector Begbie about one (1) of the cases 2 that we have been examining here, namely, the Sharon 3 case. All right? 4 So if I can start with you, Sergeant 5 MacLellan, you are an officer with the Ontario Provincial 6 Police, am I right? 7 MR. GREGORY MACLELLAN: Yes. 8 MR. MARK SANDLER: And you have been a 9 member of that Force for some three and a half (3 1/2) 10 years. 11 MR. GREGORY MACLELLAN: Yes. 12 MR. MARK SANDLER: And prior to that, you 13 were an officer with the Trenton Police Force for some 14 nineteen (19) years, if I recollect correctly? 15 MR. GREGORY MACLELLAN: Yes. It was 16 Trenton Police, which later became Quinte West Police. 17 MR. MARK SANDLER: All right. And -- and 18 that Police Force, ultimately -- its policing services 19 were taken over by the OPP, hence your involvement now as 20 an OPP officer. Am I right? 21 MR. GREGORY MACLELLAN: Yes. 22 MR. MARK SANDLER: And as I understand 23 it, you obtained the rank of Inspector while with the 24 prior police service. Am I right? 25 MR. GREGORY MACLELLAN: Yes.
81 MR. MARK SANDLER: And while you were an 2 officer with the Trenton Police Service, as I understand 3 it you performed a variety of -- of duties including a -- 4 a stint with the criminal investigation's branch while 5 you served as a Staff Sergeant. Am I right? 6 MR. GREGORY MACLELLAN: Yes. 7 MR. MARK SANDLER: And as I understand 8 it, the Joshua case occurred, or your involvement in it 9 occurred very shortly after you moved back into the 10 criminal investigation's branch, from other duties? 11 MR. GREGORY MACLELLAN: Yes, the same 12 month. 13 MR. MARK SANDLER: All right. And I'm 14 going to turn to Inspector Begbie for a moment. And as I 15 understand it, you are a member of the Kingston Police 16 Service. Am I right? 17 MR. BRIAN BEGBIE: Correct. 18 MR. MARK SANDLER: And you have been a 19 member of that Force for some twenty-three (23) years? 20 MR. BRIAN BEGBIE: Yes. 21 MR. MARK SANDLER: You're currently of 22 Inspector rank, and have been an Inspector for 23 approximately one (1) year? 24 MR. BRIAN BEGBIE: Correct. 25 MR. MARK SANDLER: Prior to that, you
91 served as a Staff Sergeant with that police service for 2 approximately three (3) years? 3 MR. BRIAN BEGBIE: Yes. 4 MR. MARK SANDLER: And while serving as a 5 Staff Sergeant, you performed a variety of functions, 6 including a stint at one (1) point as the Unit Commander 7 of the Criminal Investigations Bureau, and a stint 8 involved in the investigation of cold cases. 9 Am I right? 10 MR. BRIAN BEGBIE: That's correct. 11 MR. MARK SANDLER: And prior to that, you 12 were a Sergeant with the criminal investigation's branch 13 of that same police service for approximately eleven and 14 a half (11 1/2) years. 15 MR. BRIAN BEGBIE: Yes. 16 MR. MARK SANDLER: And you were involved 17 in what we've described as the Sharon case, as one (1) of 18 the investigating officers. Am I right? 19 MR. BRIAN BEGBIE: You are. 20 MR. MARK SANDLER: And the documents make 21 reference to Detective Sergeant Bird. Was he the case 22 manager as I understand it, and one (1) of the 23 investigators on the case as well? 24 MR. BRIAN BEGBIE: Correct. 25 MR. MARK SANDLER: All right. And what
101 was your rank when you were involved in the case? 2 MR. BRIAN BEGBIE: I was a Constable 3 then. 4 MR. MARK SANDLER: All right. And what 5 was his rank when he was involved in the case? 6 MR. BRIAN BEGBIE: He was a Detective 7 Sergeant. 8 MR. MARK SANDLER: Okay. I'll probably 9 continue to refer to you by your current ranks, each of - 10 - each of you, to avoid confusion on my part, if not 11 yours. 12 So I'm going to turn to Sergeant 13 MacLellan, if I may, and -- and discuss with you the -- 14 the Joshua case. And you have a binder of documents in 15 front of you, and if you'd go with me to Tab 1 of that 16 binder, PFP143053. 17 And at page 3 of that document, which is 18 our overview report, we have the basic information in 19 connection with the Joshua case. And I'll simply outline 20 it just to provide context in time and place for -- for 21 all of the listeners. 22 Joshua was born in Belleville, in 23 September of 1995, to Sherry Leanne Sherret, and Peter. 24 Joshua had an older half-brother. Peter, Joshua, and 25 Joshua's brother all resided together in Trenton.
111 Joshua died on January the 23rd of 1996 at 2 the age of 4 months, in Trenton. On March the 27th, 3 1996, Sherry, his mother, was charged with first degree 4 murder in Joshua's death. After a preliminary inquiry, 5 she was committed to stand trial on that charge. 6 Subsequently, the committal was quashed, and she was 7 ordered to stand trial on a charge of second degree 8 murder. 9 And in January of 1999, a new indictment 10 charging infanticide was placed before the Court. She 11 entered a plea of not guilty, however the Crown then read 12 into the record certain agreed facts. The defence called 13 no evidence in response to those facts, and did not 14 dispute them. As a result, she was convicted of 15 infanticide. 16 And as reflected in paragraph -- 17 paragraphs 5 and following, Joshua's mother and family 18 members were also the subject of proceedings instituted 19 by the Northumberland Children's Aid Society. All right? 20 So against that background, Sergeant 21 MacLellan, that -- that I'm going to ask you some 22 questions about this case. 23 You've said that at the time of Joshua's 24 death you were the head of the Criminal Investigations 25 Branch for the Trenton Police Force. Am I right?
121 MR. GREGORY MACLELLAN: Yes, I had just 2 taken over that role. 3 MR. MARK SANDLER: And did you attend the 4 home where the baby had gone into distress, shortly after 5 the baby died? 6 MR. GREGORY MACLELLAN: Yes, I did. 7 MR. MARK SANDLER: And was there a 8 protocol in place at that point in time as to how 9 investigations, sudden and unexpected deaths of infants, 10 should be conducted? 11 MR. GREGORY MACLELLAN: There was a 12 protocol that concerned Sudden Infant Death Syndrome. 13 MR. MARK SANDLER: All right. And that 14 was a protocol, as I understand it, that you were 15 familiar with and were mindful of when you attended the 16 scene? 17 MR. GREGORY MACLELLAN: Yes. 18 MR. MARK SANDLER: All right. Was that 19 province-wide protocol or was that a protocol that we 20 geared to your individual police service, or do you 21 recall? 22 MR. GREGORY MACLELLAN: I believe it was 23 a document that came out of the Chief Coroner's Office -- 24 MR. MARK SANDLER: All right. 25 MR. GREGORY MACLELLAN: -- so I assume it
131 was province-wide. 2 MR. MARK SANDLER: All right. And -- and 3 as I understand it, you then proceeded to the hospital 4 where you and the coroner interviewed the mother. Am I 5 right? 6 MR. GREGORY MACLELLAN: I sat in on the 7 interview; the coroner, Dr. Bonn, asked the questions. 8 MR. MARK SANDLER: Okay. And -- and why 9 was it that -- that the coroner assumed the questioning 10 at that point in the investigation? 11 MR. GREGORY MACLELLAN: At that point in 12 the investigation it was a coroner's case, a coroner's 13 investigation, and as such, we act as basically the 14 investigative arm of the coroner, but if they choose to 15 ask the questions in a meeting, that's quite all right. 16 MR. MARK SANDLER: All right. And if 17 you'd go to page 13 of the overview report, paragraph 39, 18 the conversation that took place at the hospital that you 19 have described is set out in this paragraph, and -- and I 20 just want to highlight one (1) of the answers about eight 21 (8) answers down. 22 The coroner asks where the baby was put to 23 sleep and she indicates: 24 "In the livingroom because he can't 25 sleep in the bedroom.
141 Why not? 2 I have a mould and mildew problem that 3 was affecting him. We used to use a 4 bassinet, but it was full of mould and 5 mildew; we switched him to the 6 playpen." 7 And do you recall the issue of -- of mould 8 being raised by her and being the subject of 9 investigation as your work on this file progressed? 10 MR. GREGORY MACLELLAN: Yes. 11 MR. MARK SANDLER: All right. And I'm 12 going to come back to that and -- and some of the 13 exchanges with Dr. Smith, surrounding the issue of mould. 14 If we can move on, there was a point, as I 15 understand it, where this moved from a coroner's 16 investigation to a criminal investigation. Am I right? 17 MR. GREGORY MACLELLAN: Yes. 18 MR. MARK SANDLER: And if one goes to 19 paragraph 44, page 15, of the overview report -- I'm 20 sorry, page 17 of the overview report, we see that -- 21 that as a result of work that was requested by -- by the 22 coroner, the radiologist at Belleville General Hospital 23 reported the observation of a fracture: left distal 24 tibial metaphyseal fracture, otherwise known as a bucket 25 handle fracture.
151 Am I right? 2 MR. GREGORY MACLELLAN: Yes. 3 MR. MARK SANDLER: And I take it, and 4 we've already heard about this to some extent, that that 5 was a fact that caused this investigation to be converted 6 into a criminal investigation, right? 7 MR. GREGORY MACLELLAN: Yes, it suddenly 8 became a suspicious death -- 9 MR. MARK SANDLER: Okay. 10 MR. GREGORY MACLELLAN: -- I'll opposed 11 to SIDS. 12 MR. MARK SANDLER: And as one (1) of the 13 byproducts of -- of the conversion of the investigation, 14 based upon that finding, was it determined that the 15 autopsy would be performed by Dr. Smith in Toronto? 16 MR. GREGORY MACLELLAN: Yes. 17 MR. MARK SANDLER: And had you dealt with 18 Dr. Smith before? 19 MR. GREGORY MACLELLAN: No. 20 MR. MARK SANDLER: Did you have any 21 understanding at that time as to why the case was going 22 to go to Dr. Smith, in particular? 23 MR. GREGORY MACLELLAN: Timing is -- is 24 the question here. I did become aware that he was the 25 person that coroners were to direct any suspicious infant
161 deaths. I may have heard that before this; certainly I 2 knew it after this, at that point in time, I can't say 3 for sure. 4 MR. MARK SANDLER: All right. And if 5 you'd go with me to page 18 of the overview report, 6 paragraph 52, we actually see that on January the 24th of 7 1996, Joshua's body was transferred from the Belleville 8 General Hospital to the Hospital for Sick Children. 9 You and Constable LeLong -- DeLong, 10 accompanied Joshua's body to the Hospital for Sick 11 Children, is that right? 12 MR. GREGORY MACLELLAN: Yes. 13 MR. MARK SANDLER: And can you describe 14 for the Commissioner, what transpired when you met Dr. 15 Smith for the first time? 16 MR. GREGORY MACLELLAN: We were in an 17 examining room and there were other infants to be 18 examined. 19 MR. MARK SANDLER: All right. 20 MR. GREGORY MACLELLAN: We spoke to Dr. 21 Smith and at that point he asked me to go for coffee for 22 an hour, they weren't ready for us yet. 23 MR. MARK SANDLER: Okay. 24 MR. GREGORY MACLELLAN: It was a 25 discussion around continuity. I -- I wished to stay with
171 Joshua and he insisted that I leave. 2 MR. MARK SANDLER: All right. So just 3 stopping there for a moment. You felt that -- that it 4 was your obligation to stay with Joshua as part of the 5 continuity that police officers are always concerned 6 about? 7 MR. GREGORY MACLELLAN: Yes. 8 MR. MARK SANDLER: And -- and what did he 9 say about that? 10 MR. GREGORY MACLELLAN: He said that it 11 was his examining room and that he now had the 12 responsibility of continuity, and that I was to leave. 13 MR. MARK SANDLER: All right. And -- and 14 did you accept that at the time? 15 MR. GREGORY MACLELLAN: I wasn't 16 comfortable with it, I left. I put that up to my 17 experience at the time with these types of cases. I -- I 18 would not have done that later in my career. 19 MR. MARK SANDLER: All right. And -- and 20 when you make reference to -- to experience or lack 21 thereof at that point in time, had you done a pediatric 22 death case before? Or do you recall? 23 MR. GREGORY MACLELLAN: Not a suspicious 24 death. I'd never been involved in an autopsy of -- of 25 anyone really at that point.
181 MR. MARK SANDLER: All right. And so in 2 -- in fairness to you, you not having been involved in an 3 autopsy before and Dr. Smith obviously having -- and 4 doing them for a living, you deferred to him in that 5 instance? 6 MR. GREGORY MACLELLAN: I did. 7 MR. MARK SANDLER: Just so that I 8 understand the -- the protocol, or the process that 9 currently exists, now as an experienced officer, what's 10 your view as to -- as to the officer's role in 11 maintaining continuity of the body, in -- in the same 12 kinds of circumstances? 13 MR. GREGORY MACLELLAN: I feel now and I 14 felt then that I should have stayed with the body. And 15 now I would have been more forceful about it. 16 MR. MARK SANDLER: Okay. So then you did 17 depart with your fellow officer and returned at some 18 point I take it? 19 MR. GREGORY MACLELLAN: Exactly one (1) 20 hour. 21 MR. MARK SANDLER: Exactly. All right. 22 And what transpired upon your return? 23 MR. GREGORY MACLELLAN: We -- we waited, 24 and then the examination did take place. 25 MR. MARK SANDLER: All right. And can
191 you describe what you recall, in general terms, about -- 2 about the examination? 3 MR. GREGORY MACLELLAN: Without referring 4 to notes, it would be very general, that an autopsy was 5 performed. There were several people in the room. It 6 wasn't just Dr. Smith, there were other doctors involved. 7 There were photographs taken by Constable 8 DeLong who was working as a forensic Ident officer at the 9 time, and also photographs taken by a member of the 10 medical team. 11 MR. MARK SANDLER: All right. And did 12 officer DeLong receive any direction as to what 13 photographs to take, or do you recall? 14 MR. GREGORY MACLELLAN: I can't recall 15 specifically what she might have been told. They might 16 have -- they might have pointed things out to her. 17 Again, I'm standing back, she was closer to -- to the 18 table. 19 MR. MARK SANDLER: All right. And I'm 20 going to come back to the issue of photographs, because - 21 - because I take it there, later -- somewhat later in 22 time there -- there's a discussion that Dr. Smith and you 23 are parties to, as to whether photographs had been taken 24 by someone other than the -- the Trenton Identification 25 Officer.
201 Am I right as to that? 2 MR. GREGORY MACLELLAN: Yes. And -- and 3 we'll get to that in the chronology if we may. What 4 about note taking? Was there any discussion about -- 5 about note taking on your part or anyone else? 6 MR. GREGORY MACLELLAN: Dr. Smith asked 7 me not to take notes. I had my notebook out. It's a 8 standard habit of mine to -- to make notes. And it's 9 certainly, I feel, an obligation of a police officer to 10 make notes. And he -- he instructed me not to take 11 notes. I insisted that I -- I would take notes. They 12 would just be general notes, but that I would take notes. 13 MR. MARK SANDLER: All right. Was there 14 any discussion about the -- about why it was that he 15 didn't want you to take notes at the autopsy? 16 MR. GREGORY MACLELLAN: I'm not clear 17 exactly why. He did say to me that Toronto police don't 18 take notes. And I explained that I didn't work for the 19 Toronto police. But I didn't understand really why he 20 had a problem with it. 21 MR. MARK SANDLER: All right. And -- and 22 I take it, unlike the continuity of the body issue, 23 notwithstanding his comment or direction or suggestion, 24 however one characterizes it, you continued to take 25 notes?
211 MR. GREGORY MACLELLAN: I felt much more 2 on solid ground. I had enough experience to know that 3 officers take notes. 4 MR. MARK SANDLER: All right. And -- and 5 had you intended to take notes, because I have to say in 6 fairness to Dr. Smith, we've heard that -- that there is 7 different views in the forensic pathology community as to 8 the extent to which, or whether officers should take 9 notes, particularly of the things that are being said 10 about the pathology during -- during the autopsy. 11 What did you find of significance to be -- 12 to be recording in -- in your notebook in -- in general 13 terms during the autopsy? 14 MR. GREGORY MACLELLAN: When -- when I 15 say "general terms", I mean I wasn't trying to record 16 everything that was said. I was interested in things 17 like who was working on -- on the autopsy, so I tried to 18 acquire the names of the medical people involved. 19 I made notes that there were photographs 20 taken by my officer and by a member of that team. There 21 -- I think I made some notes about different things that 22 went on, but they -- they certainly weren't comprehensive 23 and I didn't try to record everything that was being 24 said. 25 MR. MARK SANDLER: All right. And I
221 won't take you through them, but we actually see the -- 2 the nature of the notes that you took, at page 19 of the 3 overview report, paragraph 54. 4 And -- so there is the reference to 5 various times that events were taking place, the 6 participants, when they came and went, the photographs 7 that were being taken by whom, and some of the most basic 8 activity that was taking place during the autopsy, such 9 as the removal of the skull. 10 Is that right? 11 MR. GREGORY MACLELLAN: Yes. 12 MR. MARK SANDLER: Okay. 13 MR. GREGORY MACLELLAN: And I felt it was 14 -- like I felt it was important to record who was there. 15 This is a -- the evidence, people were handling the 16 evidence, and that's why I took the names. 17 MR. MARK SANDLER: All right. Would you 18 do anything differently today? 19 MR. GREGORY MACLELLAN: No. 20 MR. MARK SANDLER: And if you'd go ahead 21 then to page 21 of the overview report, paragraph 57, we 22 see that -- that you shortly thereafter met with Dr. 23 Smith, together with Constable DeLong, in a conference 24 room at the Hospital for Sick Children. And -- and your 25 notes of the meeting reflect that:
231 "Dr. Smith was in the room; states that 2 he has an asphyxial mode of death. The 3 question is what set it off? Concerns 4 about hemorrhaging behind the ear and 5 the fracture of the ankle. Unable to 6 tell us when these occurred right now. 7 Will eventually give us a range of 8 time. It may not be very definitive. 9 States it's consistent that someone 10 smothered the child, but cannot say 11 that it is not natural causes either, 12 if really examined. Injuries need to 13 be explained. Cannot fit this into the 14 latest definition of SIDS. States this 15 is a very difficult case. States it 16 would be unusual for the fracture to 17 occur after death, but cannot say it 18 did not now. Minor swelling of brain 19 indicates that death was not immediate. 20 Not seen in SIDS deaths. Minor 21 hemorrhages on skull are suspicious, 22 but can't say what caused them. 23 Hemorrhage around ear is not post- 24 mortem. Did not occur after death. 25 I asked if it would take a lot of force
241 to cause the injury around the ear. 2 States no, that one (1) blow could 3 cause this injury around the ear. Was 4 on the left side. The blow that caused 5 this injury could have caused -- could 6 also have caused the swelling on the 7 brain." 8 And does that accurately reflect what it 9 was that -- that you took from Dr. Smith's meeting with 10 you that day? 11 MR. GREGORY MACLELLAN: Yes. 12 MR. MARK SANDLER: And -- and I asked you 13 what you took from it. Could you just tell me in a 14 general sense, as the investigator, what did you take 15 from what Dr. Smith had said, in lay terms? 16 Where were you at in terms of your 17 investigation, as a result of what he was saying to you 18 up until that point in time? 19 MR. GREGORY MACLELLAN: That we had a 20 death, that we had injuries that needed to be explained, 21 that it could be smothering, but it could also be from 22 natural causes; the death. 23 MR. MARK SANDLER: All right. 24 MR. GREGORY MACLELLAN: That we just 25 didn't know.
251 MR. MARK SANDLER: And did you have any 2 sense from your conversation with Dr. Smith as to which - 3 - whether he favoured one (1) as opposed to the other, or 4 -- or did you know? 5 MR. GREGORY MACLELLAN: No, I -- I can't 6 say I had a sense of that. 7 MR. MARK SANDLER: Okay. 8 MR. GREGORY MACLELLAN: Just -- I -- I 9 certainly went away just thinking it possibly could be 10 foul play, but maybe it's not. 11 MR. MARK SANDLER: All right. And were 12 you prepared as an officer to remain open to either 13 possibility? 14 MR. GREGORY MACLELLAN: Yes. 15 MR. MARK SANDLER: And then if you go to 16 page 23 of the overview report, paragraph 62, we see here 17 that -- that at 9:15 -- excuse me for a moment. 18 This would be on January the 25th, the 19 following day, you called the Children's Aid Society 20 reviewing the information that you had and advised the 21 CAS worker that you had very real concerns about the 22 safety of Joshua's brother, and the CSA (sic) worker made 23 certain notations of the call. 24 And why was it that you contacted 25 Children's Aid Society?
261 MR. GREGORY MACLELLAN: Well, when -- 2 when faced with a circumstance like this, to me, from the 3 police perspective of conducting an investigation, you 4 sort of conduct it in the way that, you know, all 5 possibilities are there, so if it's possible that it's 6 foul play, then -- then you try to cover all your bases, 7 and one (1) of those things, certainly, would -- would be 8 to ensure the safety of the other child in the home. 9 MR. MARK SANDLER: All right. And -- and 10 we've heard that -- that police officers and others have 11 a duty to report in some circumstances of suspected 12 abuse, whether they meet the threshold of criminal, 13 reasonable and probable grounds. 14 And does accord with your understanding, 15 as well? 16 MR. GREGORY MACLELLAN: Yes. 17 MR. MARK SANDLER: And we actually see, 18 and I'm not going to take you to all the entries, but we 19 actually see that -- that you were involved in an ongoing 20 dialogue with Children's Aid as the investigation 21 progressed, sharing information. 22 And does that accord with your 23 recollection, as well? 24 MR. GREGORY MACLELLAN: Yes. 25 MR. MARK SANDLER: And would that be for
271 the same reason, keeping Children's Aid apprised of -- of 2 the state of the investigation and having regard to the - 3 - to the public interest concerning the other children? 4 MR. GREGORY MACLELLAN: Yes. 5 MR. MARK SANDLER: And I'm going to jump 6 ahead a little bit now, but are there protocols that 7 exist, as you understand it, that -- that regulate the 8 exchange of information between Children's Aid Society 9 and police services in these kinds of situations? 10 MR. GREGORY MACLELLAN: Yes. 11 MR. MARK SANDLER: All right. And -- and 12 have you been involved in -- in the kind of dialogue that 13 led to the creation of those kinds of protocols? 14 MR. GREGORY MACLELLAN: Yes, but it 15 occurred after this event. 16 MR. MARK SANDLER: Right. Fair enough. 17 Sometime after, I take it? 18 MR. GREGORY MACLELLAN: Yes. 19 MR. MARK SANDLER: And -- and through 20 your counsel we've actually been provided with an 21 existing protocol that applies to -- to your police 22 service, as well, and -- and we'll put that on our 23 database and share it with all the parties involved, so 24 that they'll have some idea about -- about what protocol 25 exists in --
281 MR. GREGORY MACLELLAN: Can I take one 2 (1) second -- 3 MR. MARK SANDLER: -- in your 4 jurisdiction. 5 MR. GREGORY MACLELLAN: When you say 6 "your police service", I -- I really think I should 7 qualify that. When I speak of issues in this case, I'm 8 speaking from the perspective of a small police service 9 of which I was part of at the time. 10 MR. MARK SANDLER: Right. 11 MR. GREGORY MACLELLAN: I"m not speaking 12 on behalf of the OPP. And they -- they would have had a 13 different experience, I'm sure. 14 MR. MARK SANDLER: I understand. All 15 right. We'll -- 16 COMMISSIONER STEPHEN GOUDGE: Is the 17 present protocol an OPP protocol? 18 MR. GREGORY MACLELLAN: It is, but it 19 developed locally, so you will see differences in 20 different regions. 21 COMMISSIONER STEPHEN GOUDGE: I see. 22 MR. GREGORY MACLELLAN: And I know 23 sometimes that -- that the OPP would like things 24 provincially -- 25 COMMISSIONER STEPHEN GOUDGE: Uniform.
291 MR. GREGORY MACLELLAN: -- but that's 2 certainly not the way it is right now. There -- there 3 may be slight differences; there may be similarities, but 4 differences. 5 COMMISSIONER STEPHEN GOUDGE: So in your 6 region you have a, sort of, locally adapted protocol? 7 MR. GREGORY MACLELLAN: Yes, we do. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: And we're going to 11 take your comments only as applying to that period of 12 time and that you were an officer with the Trenton Police 13 Service, and we won't generalise beyond that. 14 MR. GREGORY MACLELLAN: Yes. 15 MR. MARK SANDLER: All right. Now, 16 moving ahead, we see at paragraph 63 at page 23, that 17 also on that same date you received a telephone call from 18 Sherry, Joshua's mother, about a mould problem in her -- 19 her apartment. 20 And again, in the course of your 21 investigation of this matter, did -- did she raise 22 concerns with you as to whether or to what extent mould 23 had played a role in the death of her child? 24 MR. GREGORY MACLELLAN: Yes, she did. 25 MR. MARK SANDLER: And what is reflected
301 at the last line of paragraph 63 is that you advised her 2 that all aspects of the death would be investigated. 3 And -- and that was an accurate statement? 4 MR. GREGORY MACLELLAN: Yes. 5 MR. MARK SANDLER: And one (1) of the 6 aspects that you were intent on investigating was the 7 possibility that mould had contributed or caused this 8 death. 9 Is that right? 10 MR. GREGORY MACLELLAN: Yes. 11 MR. MARK SANDLER: And we're actually 12 going to see that you actually take the initiative and -- 13 and call a number of experts from various locations in 14 North America to -- to investigate that. Am I right? 15 MR. GREGORY MACLELLAN: Yes. 16 MR. MARK SANDLER: Now, if we can move 17 from there, in sequence -- and I'll actually take you to 18 some of this evidence and I'm going to do it very quickly 19 as a lead-in to -- to how you dealt with it in the 20 context of Dr. Smith and -- and his reporting. 21 If you go to page 28 of the overview 22 report, paragraph 78, we see that on February the 1st of 23 1996, and this is after -- and I haven't taken it to you 24 -- after other conversation -- at least another 25 conversation with Sherry about the health department
311 coming to inspect her apartment, and so on, you contact 2 Dr. Bickus, an expert in toxicology, to discuss the mould 3 issue. 4 And what did you take from what Dr. Bickus 5 told you about this issue? 6 MR. GREGORY MACLELLAN: I -- I took his 7 information very seriously; that mould can cause deaths 8 in -- in infants, that there is investigations into how 9 this might happen and why, trying to figure it out 10 exactly. So it certainly brought to the forefront in my 11 mind that this -- this is a real possibility. 12 MR. MARK SANDLER: And he reflected to 13 you that he was aware of cases in Chicago and elsewhere 14 in the United States of a type of mould causing death to 15 infants under one (1) years of age, is that right? 16 MR. GREGORY MACLELLAN: Yes. 17 MR. MARK SANDLER: And so moving there, 18 paragraph 79 says that after ending that call you 19 immediately called Dr. Smith's office and left a message 20 with his secretary, that you had new information that 21 mould could cause death in infants and for Dr. Smith to 22 call you back. 23 What did you want to say to him? What did 24 you want him to do? 25 MR. GREGORY MACLELLAN: I wanted him to
321 be aware of what I had learned. I really wanted him to 2 have that information and to ensure that the, I don't 3 know if it's the right term, but the pathological 4 investigation, his investigation, would include that 5 possibility. 6 MR. MARK SANDLER: Okay. And we see that 7 at paragraph 81, that later on in the same day you 8 assigned Constable DeLong to contact the toxicologist to 9 learn how to collect mould samples, and a warrant was -- 10 was granted to seize samples from Sherry's former 11 apartment, and -- and mould samples were actually taken 12 and later submitted to Dr. Richard Summerbell for 13 testing. 14 Is that right? 15 MR. GREGORY MACLELLAN: Yes. 16 MR. MARK SANDLER: Now, if we can move 17 from there to paragraph 84, at page 31, and again we see 18 that -- that you're receiving additional information from 19 Dr. Bickus, who in turn has received information from the 20 Centre for Disease Control in Atlanta about what a 21 pathologist should look for to determine if mould is 22 involved in a death, and that you asked that that 23 information be faxed to him. 24 Had that been as a result of a request on 25 your part to Dr. Bickus to -- to learn what a pathologist
331 should be looking for in -- in mould-related deaths? 2 MR. GREGORY MACLELLAN: I may have said 3 that in the conversation with him. I'm sure I expressed 4 my interest in learning all I could about this. 5 MR. MARK SANDLER: Okay. Against that 6 background if we could move to a meeting that took place 7 on February the 8th of 1996. And reference is made to it 8 at page 32, paragraph 88, of the overview report. 9 And -- and it reflects that you and 10 Sergeant Blakely (phonetic) met with Dr. Smith at Dr. 11 Smith's office in Toronto. And you prepared a written 12 list of questions to ask Dr. Smith in advance and 13 subsequently typed in Dr. Smith's answers. And this will 14 probably be perfectly self-evident to you but this is now 15 the third occasion that we've seen officers preparing a 16 list of typewritten questions to facilitate their 17 conversation with Dr. Smith. 18 So I'll ask you -- and for the 19 Commissioner's benefit what you did is found at Tab 7 of 20 -- of the materials -- why did you do it that way? 21 MR. GREGORY MACLELLAN: Well, there were 22 a couple reasons. One (1), it certainly assists me in 23 organizing my thoughts and ensuring that I've covered all 24 the material I want to cover. It also -- I tried to 25 control the conversation to some extent to -- to keep it
341 in areas that were, you know, relevant to the 2 investigation. And it provided me a written, even though 3 it's my writing, record of his responses. 4 MR. MARK SANDLER: All right. And did 5 you raise the issue of mould with him? 6 MR. GREGORY MACLELLAN: I believe I did. 7 I have to look to see which question it is, right. 8 MR. MARK SANDLER: All right. I can tell 9 you that one (1) -- one (1) of the questions does indeed 10 have to do with -- with mould. You'll actually see... 11 12 (BRIEF PAUSE) 13 14 MR. MARK SANDLER: If one goes to Tab 15 7... 16 17 (BRIEF PAUSE) 18 19 MR. MARK SANDLER: Excuse me for a 20 moment. 21 22 (BRIEF PAUSE) 23 24 COMMISSIONER STEPHEN GOUDGE: On page 3, 25 there's any indication consistent with mould being
351 associated to the death. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Do you see that? 5 MR. GREGORY MACLELLAN: The last question 6 -- or second to the last question. 7 MR. MARK SANDLER: Right. 8 COMMISSIONER STEPHEN GOUDGE: Second to 9 the last question on page -- 10 MR. MARK SANDLER: Right. 11 COMMISSIONER STEPHEN GOUDGE: -- 3 of 12 that document. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: And he says, "No." 16 COMMISSIONER STEPHEN GOUDGE: Then 17 there's some handwriting under it. Is that another 18 question, Sergeant MacLellan? 19 MR. GREGORY MACLELLAN: Yes, it is. 20 COMMISSIONER STEPHEN GOUDGE: Okay. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: So help me out as to 24 this, at this meeting and -- and perhaps at other 25 meetings which I'll ask you about, you raise the issue of
361 mould, and whether or not it could explain the death. 2 What was Dr. Smith's attitude or 3 responsiveness to -- to the issue of mould, if I may put 4 it that way? 5 MR. GREGORY MACLELLAN: He -- he was very 6 dismissive of the -- of the theory of -- and I found it 7 frustrating. I -- I didn't mind that -- if he was going 8 to say, No, it didn't cause the death. 9 I just wanted to understand that he was 10 saying this scientifically, that he had done the 11 investigation and could support that statement, rather 12 than just off hand -- 13 COMMISSIONER STEPHEN GOUDGE: Did he 14 explain it to you, or did he just give you a flat no? 15 MR. GREGORY MACLELLAN: Just -- just a 16 no. And then in later conversations, when -- when I 17 discussed my investigation into the deaths in Cleveland 18 that were being studied, and the fact that the Centre for 19 Disease Control had funded some very large amounts of 20 money towards this, that -- that these people are going 21 to look like they're legitimate experts and have a 22 legitimate investigation going on, that he felt that -- 23 that they weren't professional and that it was probably 24 just cases of child abuse as well. 25
371 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: So let's -- let's just 3 unpack that for a moment. You made reference to a 4 Cleveland study, and as I understand it, this was a study 5 that had identified, in their view, cases in which 6 children had died as a result of mould, am I right? 7 MR. GREGORY MACLELLAN: Yes. 8 MR. MARK SANDLER: And -- and you raised 9 that study with him at one (1) point? 10 MR. GREGORY MACLELLAN: Yes. 11 MR. MARK SANDLER: And -- and his 12 response to the study was what? 13 MR. GREGORY MACLELLAN: I can't -- in 14 general terms, he was dismissive of it, just out of hand, 15 and felt the cases might be child abuse as well. 16 MR. MARK SANDLER: All right. Did you 17 know whether he'd been familiar with the study before you 18 brought it to his attention, or can you say? 19 MR. GREGORY MACLELLAN: I don't believe 20 that he was. 21 MR. MARK SANDLER: All right. And did 22 you end up giving him a copy of the study or did he 23 indicate that he'd obtained a copy of the study before 24 he'd indicated that -- that the cases were possibly or 25 probably just child abuse cases?
381 MR. GREGORY MACLELLAN: I don't believe I 2 ever had a full copy of the study. And I don't -- I 3 don't know that he ever did either. So I -- I don't 4 think so. 5 MR. MARK SANDLER: Okay. Now if we can 6 go to paragraph 89 of the overview report at page 35. We 7 see that your memo book notes of the meeting reflect some 8 conversation that seems to take place -- well, I'll ask 9 you, this is near the end of the meeting, or is -- or is 10 this at the beginning of the meeting that -- that these 11 notations make reference to? 12 MR. GREGORY MACLELLAN: Which part of the 13 paragraph are you talking about? Where -- 14 MR. MARK SANDLER: I'm -- 15 MR. GREGORY MACLELLAN: -- Sergeant 16 Blakely asked Dr. Smith's opinion? 17 MR. MARK SANDLER: Right. 18 MR. GREGORY MACLELLAN: That's at the 19 very, very end as we're leaving. 20 MR. MARK SANDLER: All right. So tell us 21 what happened? 22 MR. GREGORY MACLELLAN: Sergeant Blakely 23 asked Dr. Smith's opinion on whether she, meaning the 24 mother, killed the baby. He responded that he thinks she 25 killed him.
391 He went on to list some indications in 2 mothers -- signs in mothers that kill babies -- and he 3 went on to describe some of those; as usually talks about 4 it ahead of time about the baby dying, or that she will 5 kill it, relationship problems, custody battles, getting 6 back at the father, will plan it, may talk about how they 7 will do it. 8 MR. MARK SANDLER: All right. And did 9 you regard these as matters upon which a forensic 10 pathologist could opine? 11 I'm just wondering what your mind set was 12 when -- when he's indicating to you that -- that there 13 are indications that -- in mothers that kill babies, such 14 as their relationship problems, their custody battles, 15 getting back at the mother (sic), that they tend to plan 16 it, they'll talk about how they're going to do it. 17 What -- what did you take from that? 18 MR. GREGORY MACLELLAN: I was very 19 uncomfortable with the conversation. I wouldn't have 20 asked the question myself. 21 And I felt he had no expertise to talk 22 about those -- those indicators. And it really didn't 23 mean a lot to me. 24 MR. MARK SANDLER: All right. It's 25 probably self-evident from what you've said as a -- as an
401 investigating officer. What, if any, use did you think 2 you should make of that information as communicated to 3 you? 4 MR. GREGORY MACLELLAN: I just remember 5 thinking it was -- it was a problem; that it was -- I was 6 uncomfortable with the conversation. It didn't help me. 7 And I thought it could be a -- a problem down the road at 8 a trial. 9 MR. MARK SANDLER: Okay. And a problem 10 down the road -- 11 COMMISSIONER STEVEN GOUDGE: Did you form 12 a view, Sergeant MacLellan, about Dr. Smith's objectivity 13 as a result of the conversation? 14 MR. GREGORY MACLELLAN: I felt he was out 15 of line to -- to make those kind of descriptions at this 16 -- at this point in an investigation. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: All right. If you'd 20 go to page 38 of the overview report; paragraph 97. 21 We see that on February the 21st, Richard 22 Summerbell, the Chief Medical Mycologist with the Ontario 23 Ministry of Health, sent a report to Constable DeLong 24 regarding the mould that was found in the Sherret 25 apartment.
411 And how was it that Richard Summerbell had 2 -- had become involved in providing information to the 3 Trenton Police Service? 4 MR. GREGORY MACLELLAN: The Centre for 5 Forensic Science has advised that they couldn't conduct 6 the testing of the mould to identify what was there. 7 And through a series of phone calls, we 8 learned that the Health Sciences Labs -- the Provincial 9 Health Sciences Labs in Toronto could do that testing, 10 and that's where Dr. Summerbell came in. 11 MR. MARK SANDLER: Okay. And we see at 12 the following page, page 39; paragraph 101; that -- that 13 on -- two (2) days later, Constable DeLong spoke by 14 telephone with Sergeant Summerbell -- with -- sorry, with 15 Dr. Summerbell, who confirmed that the mould found in the 16 Sherret apartment was the same strain believed to have 17 played a role in some infant deaths. 18 And -- and again -- did Constable DeLong 19 make that phone call at -- at your direction? 20 MR. GREGORY MACLELLAN: Yes, it would 21 have been. 22 MR. MARK SANDLER: All right. And then 23 you go to the following page; page 40; and we see that 24 you actually speak, as well, by telephone with Sergeant - 25 - with -- sorry -- with Dr. Summerbell of that same
421 Ministry of Health Laboratory. 2 He advised that the mould suspected of 3 being involved in the deaths of infants were present in 4 the samples from the Sherret apartment. 5 What did you do as a result? 6 MR. GREGORY MACLELLAN: I called Dr. 7 Smith. 8 MR. MARK SANDLER: All right. And your 9 memo book has -- has reflected the -- the content of the 10 conversation at paragraph 103: 11 "Dr. Smith called -- returned my calls. 12 I asked him about the fracture of the 13 left leg. He states the fracture 14 definitely occurred prior to death. 15 Probably within a couple of days of 16 death. The fracture is a healing type 17 fracture. I asked what kind of ba -- 18 pain the baby was in; states that the 19 initial pain would be similar to that 20 of a sprained ankle, but later it 21 wouldn't cause pain unless pressure was 22 applied. Dr. Smith has also noted 23 microscopic hemorrhages in the neck 24 which suggests that pressure was 25 applied. He can only suggest this as
431 other explanation; one (1) possible, 2 but unlikely. 3 I advised Dr. Smith of the mould tests, 4 and the importance of investigating the 5 possibility of mould being involved. 6 Dr. Smith is very firm that there's no 7 evidence of mould being involved. I 8 urged him to do every test and explore 9 every angle, so that there are no 10 unanswered questions concerning the 11 mould. 12 I gave him Dr. Summerbell's phone 13 number and faxed a copy of Summerbell's 14 letter to Dr. Smith." 15 And again, here it is your -- your own 16 notes reflect that you're urging him to do every test and 17 explore every angle so that there's no unanswered 18 questions. 19 Why did you feel compelled to make that 20 point with Dr. Smith? 21 MR. GREGORY MACLELLAN: Well, now we have 22 the same strain of mould in this apartment where the -- 23 the infant died as what's being investigated by the -- 24 the study in Cleveland, and -- and is believed to cause 25 death in infants.
441 To me, that's a huge possibility -- that 2 maybe this child died from mould. 3 MR. MARK SANDLER: All right. And then 4 if you'd go to page 42; paragraph 114. 5 We actually see that -- that you spoke 6 with Dr. Smith again on March the 8th after you had, 7 earlier in the day, spoken to Sheila Walsh, the -- the 8 Crown attorney in the matter, and what was it that you 9 were requesting of Dr. Smith in this telephone 10 conversation on March the 8th of 1996? 11 MR. GREGORY MACLELLAN: Which paragraph 12 are we referring to? 13 MR. MARK SANDLER: Paragraph 114 at page 14 42. 15 MR. GREGORY MACLELLAN: Okay. 16 17 (BRIEF PAUSE) 18 19 MR. GREGORY MACLELLAN: I asked him at 20 that time for a preliminary report. He states he doesn't 21 normally do this but would for out-of-town forces. I 22 asked if he would cover the mould issue. He states that 23 he only puts in very brief clinical facts in a prelim 24 report and urged me not to suggest that he had -- that he 25 add anything as a defence lawyer would suggest, I tainted
451 his report. 2 MR. MARK SANDLER: So -- so just stopping 3 there for a moment. So -- so his position was that, at 4 least as communicated at -- at that point in the 5 conversation, was that -- is that you should not be 6 suggesting that he -- that he add any facts that relate 7 to the mould issue because that could be seen as tainting 8 his report? 9 MR. GREGORY MACLELLAN: Let me use a -- 10 he told me not to suggest anything about the report; to 11 suggest that he add anything in about the report as it 12 may be questioned later on. 13 MR. MARK SANDLER: All right. And did 14 you see anything improper in the suggestion that had been 15 put to him? 16 MR. GREGORY MACLELLAN: No, I felt that 17 asking him to just cover off an issue wasn't going to 18 taint his report. I felt that all I'm doing is -- is to 19 say, Include that you have covered this investigation. 20 I'm not telling him what to put in there as to what his 21 investigation was, or what his results were, or anything 22 along those lines. 23 MR. MARK SANDLER: Okay. 24 COMMISSIONER STEPHEN GOUDGE: I take it 25 you were looking for his explanation of why he was
461 dismissing mould. 2 MR. GREGORY MACLELLAN: Yes. 3 MR. MARK SANDLER: And -- 4 COMMISSIONER STEPHEN GOUDGE: I take it 5 you never really got that. 6 MR. GREGORY MACLELLAN: Eventually, we do 7 get to a point where we think he has covered the issue. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: So continuing on in -- 11 in the paragraph, you -- you said: 12 "I advised him to just do whatever he 13 would normally do in a way of a 14 preliminary report. I also requested 15 that he ensure thorough investigation 16 of mould. States he has no evidence of 17 mould causing this death and feels that 18 the cases being studied by Atlanta are 19 not caused by mould or could be 20 murders, as well." 21 Now, up until that point in time, did you 22 know whether he had conducted any independent 23 investigation of the -- of the matters that had -- were 24 being brought to your attention? 25 MR. GREGORY MACLELLAN: No, I -- I don't
471 believe so. I just had his dismissal on it. 2 MR. MARK SANDLER: All right. And did 3 this raise any concerns with you? 4 MR. GREGORY MACLELLAN: Yes. 5 MR. MARK SANDLER: And -- and what were 6 they? 7 MR. GREGORY MACLELLAN: I felt it had to 8 be investigated, and I felt that he wasn't taking the 9 mould seriously or these other people are investigating 10 the mould seriously, you know, based on his comments to 11 me, and my impression of Dr. Smith was -- was becoming 12 less and less over time. 13 MR. MARK SANDLER: All right, now -- now 14 that doesn't speak to the issue about whether, indeed, 15 this death had anything to do with the mould or not. I 16 mean, he may very well have been right about -- about the 17 issue of mould. Your concern was that you wanted it 18 seriously addressed, and you -- and you wanted it 19 reflected in writing; is -- is that a fair comment? 20 MR. GREGORY MACLELLAN: Yes. 21 MR. MARK SANDLER: Okay. Now, if we move 22 from -- from that conversation -- well, I guess I should 23 ask you, where was it left at the end of the 24 conversation? Did you -- did you expect, first of all, 25 to get a preliminary report from him?
481 MR. GREGORY MACLELLAN: I was hoping to 2 get one (1). 3 MR. MARK SANDLER: All right. And did 4 you expect that the preliminary report would talk about 5 mould? 6 MR. GREGORY MACLELLAN: No. 7 MR. MARK SANDLER: All right. Then we 8 move ahead in -- in time to the following page of the 9 overview report, paragraph 116, which reflects on March 10 the 16th you called Dr. Smith to inquire about the 11 preliminary report. 12 You say: 13 "I asked him about the preliminary 14 report that was supposed to be here 15 yesterday." 16 Now, just stopping there for a moment. 17 Can I take from that that there must have been some 18 dialogue about -- about the fact that he was going to 19 give you a preliminary report and when it was going to 20 arrive? 21 MR. GREGORY MACLELLAN: Well, I believe 22 there was a date we had requested it by. 23 MR. MARK SANDLER: Okay. And then it 24 says: 25 "He states that they've stolen his
491 secretaries and a temporary person was 2 supposed to have faxed it out. He will 3 ensure they do. I asked about samples 4 he sent for toxicology and advised him 5 the Centre Forensic Sciences can't test 6 for evidence of toxin from mould. He 7 agrees and states there's nothing to 8 look for, that this mould is just a 9 theory, and to his knowledge nobody can 10 say how the mould would cause death; 11 that the case in the States involved 12 finding the mould spores in the lungs 13 and also finding hemorrhaging in the 14 lungs that was unexplained. 15 I asked if he had reached Dr. 16 Summerball (sic). States can't, due to 17 strike. I advised him no charge is 18 laid yet and that we want to be sure of 19 our evidence. 20 I asked Dr. Smith if he can say that 21 the physical evidence is consistent 22 with the child being smothered, but not 23 that the child was smothered for sure. 24 He states definitely he can say this. 25 I asked if he sent a preliminary
501 report, or letter to Dr. Bonn, the 2 local coroner. He says no, but he did 3 send one (1) to Dr. Bechard, the 4 Regional Coroner." 5 And does that accurately capture what -- 6 what it was that occurred during that conversation? 7 MR. GREGORY MACLELLAN: Yes. 8 MR. MARK SANDLER: And here at least it 9 would appear, in fairness to Dr. Smith, that -- that he's 10 providing you some explanation for why he's not prepared 11 to accept mould as -- as a factor in Joshua's death. 12 Is -- is that a fair comment? 13 MR. GREGORY MACLELLAN: Yes. 14 MR. MARK SANDLER: All right. And at -- 15 and at that point in time, you ask him if he had reached 16 Dr. Summerball (sic). Had there been some conversation 17 that he would speak to Dr. Summerball (sic) directly 18 about this issue, or do you recall? 19 MR. GREGORY MACLELLAN: I -- I believe 20 that in some of these conversations I had urged him to 21 talk to the people that I was talking to, and Dr. 22 Summerbell would have been one (1) of those. 23 MR. MARK SANDLER: All right. 24 MR. GREGORY MACLELLAN: I may have asked 25 him to speak to some of the other doctors that I
511 contacted through the investigation. I felt if he could 2 hear it from them, rather than from me, it might assist. 3 MR. MARK SANDLER: Okay. So then you see 4 at paragraph 118 that on March the 14th, two (2) days 5 later, you spoke with Dr. Summerbell, who advised you 6 that it was unlikely that any tests could be conducted on 7 the blood, or tissue, to reveal toxin from mould. 8 However, he wasn't certain of this, so 9 that he'd get you the name and number of an expert who 10 could advise on -- on what tests. And then he referred 11 you to Dr. Miller. 12 Paragraph 119. You spoke with Dr. Miller. 13 And what did you take from what Dr. Miller had to say to 14 you? I won't read out that whole passage, but could you 15 describe for the Commissioner what you took, in essence, 16 from what Dr. Miller had to say? 17 18 (BRIEF PAUSE) 19 20 MR. GREGORY MACLELLAN: What -- he starts 21 off with that he doesn't think our case meets the 22 criteria for the disease. And I was trying to ensure 23 that all tests that could relate to proving the disease - 24 - disease's presence have been conducted. 25 I explained reservations of Dr. Smith,
521 about the Atlanta cases being possibly child abuse. 2 Miller supported that investigation, in -- in the sense 3 that he felt this was a real disease. But he gave 4 information about how many babies had died, and that 5 there were two (2) cases in Canada, but both kids 6 survived, and that there was a set of diagnostics that 7 must be present for the disease. And he gave me some 8 information as to who to call, Dr. Dearborn, in the 9 Cleveland, Ohio, investigation. 10 MR. MARK SANDLER: All right. So -- 11 MR. GREGORY MACLELLAN: Sure -- 12 MR. MARK SANDLER: -- so the bottom line 13 was that -- that he didn't think that your case sounded 14 like it met the criteria, but -- but he rejected the 15 suggestion that -- that the Atlanta cases were child 16 abuses. This was a legitimate disease that had been 17 raised, and he gave you the name of the -- of the expert 18 in -- in Cleveland that could speak to the issue. 19 MR. GREGORY MACLELLAN: And -- and he 20 told me there was clearly things in that study to look 21 for -- 22 MR. MARK SANDLER: All right. 23 MR. GREGORY MACLELLAN: -- to -- to say 24 whether it is present in the autopsy or not. 25 MR. MARK SANDLER: All right. So did you
531 feel you were moving ahead, because he was identifying 2 some diagnostic criteria to be applied against what you 3 had here? 4 MR. GREGORY MACLELLAN: Well, exactly. 5 That's exactly what I was looking for to provide Dr. 6 Smith, so that he could, you know, compare that to his 7 examination -- 8 MR. MARK SANDLER: All right. 9 MR. GREGORY MACLELLAN: -- and say 10 whether this is present or not. 11 MR. MARK SANDLER: And then we actually 12 see that -- that on March the 18th, you do speak to Dr. 13 Dearborn. He describes, for you, the signs of -- the 14 signs that one looks for, and he faxed a report to you 15 later that day regarding pulmonary hemorrhages in infants 16 that have been exposed to this particular toxin. 17 Am I right? 18 MR. GREGORY MACLELLAN: Yes. 19 MR. MARK SANDLER: Now we see at page 47 20 of the overview report, paragraph 124, that you forwarded 21 Dr. Dearborn's letter to Dr. Smith. It says: 22 "I've attached a copy of the letter I 23 obtained from Dr. Dearborn who's 24 involved in the investigations of the 25 infant deaths attributed to mould in
541 the Cleveland area. The preliminary 2 report you sent does not indicate any 3 pulmonary hemorrhage. Is it possible 4 for you to indicate in writing the fact 5 that this type of hemorrhage was not 6 found during your investigations? 7 In our conversations, you've stated 8 that you conduct the iron stains for 9 hemosiderin-laden macrophages. Is this 10 condition present or not? Dr. Dearborn 11 confirms that at present there's no 12 conclusive test that could be conducted 13 on the blood sample that would assist 14 our investigation. 15 This issue of the mould being 16 investigated in the death of Joshua 17 must be investigated to the fullest 18 extent. The assistant Crown attorney's 19 anxious that I receive some results in 20 writing from you on this issue. The 21 report you sent me was very brief as 22 you indicated it would be." 23 And then you go on to talk about the 24 fracture, saying: 25 "You indicated the fracture was in some
551 state of healing. This fact was 2 something that I thought you were going 3 to include in your report. Is this a 4 fact, and if so, could you please 5 indicated this in writing? I know what 6 you've told me about not usually 7 providing preliminary reports. All of 8 the above issues are critical in 9 deciding our course of action. The 10 suspect in this case has another child. 11 The child's been taken into the custody 12 of CAS. There are hearings taking 13 place to determine if the child will be 14 returned to the family. 15 Our decisions regarding any criminal 16 charges will have a direct bearing on 17 these hearings. Sheila Walsh has told 18 me she does not want to make these 19 decisions until I obtain the above info 20 in writing. [and in writing is in 21 quotes from you] I agree that this 22 information is critical and needs to be 23 put down so that there is not chance of 24 misinterpretation." 25 And had you had a conversation with Ms.
561 Walsh about the -- why it was desirable in this 2 particular case to get whatever Dr. Smith was going to 3 give to you, quote "in writing" closed quote? 4 MR. GREGORY MACLELLAN: Yes. 5 MR. MARK SANDLER: So tell us about that? 6 MR. GREGORY MACLELLAN: Throughout the 7 investigation, Sheila Walsh had dealt with Dr. Smith on a 8 previous case and did not have confidence that he would 9 repeat on the stand what he would say verbally during an 10 investigation. 11 She felt it very important to pin him down 12 on details in writing so she could understand what his 13 evidence would actually be. 14 MR. MARK SANDLER: Okay. Now two (2) 15 systemic questions are -- are raised by what you've said 16 so far. The first is, leaving aside Dr. Smith and any 17 difficulties with him in particular, do you see the 18 desirability that -- that what a forensic pathologist or 19 forensic expert has to say on -- on issues of 20 complication, should be reduced to writing? 21 Do you see that as an important value? 22 MR. GREGORY MACLELLAN: You lost me in 23 part of that question there. 24 MR. MARK SANDLER: I -- 25 MR. GREGORY MACLELLAN: Can somebody --
571 MR. MARK SANDLER: -- I can understand 2 that, it wasn't worded very well. What I'm asking you is 3 that, here you are urging, on a number of occasions, Dr. 4 Smith to reduce his opinions on issues that are of 5 importance to you, in writing. 6 And what I'm saying, leave aside whether 7 part of that was prompted by Ms. Walsh's prior experience 8 with Dr. Smith, do you see that, systemically, as 9 something that you'd like to see, generally, as an 10 investigator? 11 MR. GREGORY MACLELLAN: Yes, I would like 12 to see what they can say and what they can prove in 13 writing, and I don't -- I don't see why that can't be 14 provided once they have established -- that something is 15 proven -- I don't understand why that can't be provided. 16 MR. MARK SANDLER: All right. And the 17 second issue that arises is that, and again, trying to 18 divorce this from whether the mould theory had -- had any 19 merit or didn't have any merit, what's interesting here 20 is that we see that you're running around, or your 21 officer, Constable Delong, is running around speaking to 22 experts at various locations around the world with a view 23 to determining what are the diagnostic criteria for -- 24 for this mould disease: Does the mould disease really 25 exist? What is the validity of the study on
581 mould?...with a view to feeding this to the forensic 2 pathologist so he'll speak to the issue? 3 Do you see that systemically as -- as the 4 role that the police should be playing, when that kind of 5 issue arises? 6 MR. GREGORY MACLELLAN: I -- I don't have 7 a problem with that, really. As far as -- as, you know, 8 a theory or a possibility developing in an investigation 9 and officers just doing groundwork in connecting the 10 right experts, then I don't see a problem with that. 11 MR. MARK SANDLER: Okay. 12 MR. GREGORY MACLELLAN: As long as that 13 expert then follows through in -- in his part of the -- 14 of the role as a pathologist. 15 MR. MARK SANDLER: Which is to take the 16 information that's been -- 17 MR. GREGORY MACLELLAN: Yeah. 18 MR. MARK SANDLER: -- assembled by you 19 and -- 20 MR. GREGORY MACLELLAN: And investigate 21 it and compare it -- 22 MR. MARK SANDLER: -- and investigate 23 and -- 24 MR. GREGORY MACLELLAN: -- scientifically 25 to what he has learned in his examination.
591 MR. MARK SANDLER: Okay. Then we go at 2 page 48 to paragraph 126. We see that Dr. Smith advises 3 you that -- that: 4 "Pulmonary hemorrhage exists [I take 5 it, in the Joshua case] but that the 6 patterns of the pulmonary hemorrhages 7 in this case are different than what 8 Dr. Dearborn is talking about." 9 He says that: 10 "Dr. Dearborn does not understand how 11 to view this from a pathologist's point 12 of view. I asked for this in writing - 13 - [and nobody can accuse you of not 14 being persistent] I asked you for this 15 in writing and that the fracture was 16 healing in writing. He states 'yes' 17 when he gives me his final report. He 18 states it is done waiting to be typed, 19 that he has no secretary right now, he 20 is the only pathologist for the next 21 few days, so he's typing it at home at 22 night. 23 I stated I really need it for next 24 Tuesday, as the CAS has got an 25 extension. It'll be back in Court next
601 Wednesday. He does not think it will 2 be ready by then." 3 So stopping there for a moment. Again, 4 without asking you to assess whether he's right or wrong, 5 the merits of his opinion, it does appear from your -- 6 your note that -- that he both acknowledges the existence 7 of pulmonary hemorrhages in this case, but has formed an 8 opinion that these are different kinds of pulmonary 9 hemorrhages than those that are being described by Dr. 10 Dearborn, is that right? 11 MR. GREGORY MACLELLAN: Yes, he -- 12 MR. MARK SANDLER: And -- and assuming he 13 would put that in writing, did -- did that do it for you 14 at that point in time? 15 MR. GREGORY MACLELLAN: It's hard to say 16 exactly what point in time I -- I was satisfied with Dr. 17 Smith, but I felt he was addressing it now, that he 18 wasn't dismissing it out of hand. 19 MR. MARK SANDLER: All right. Now, in 20 terms of timeliness, at this point you're now waiting for 21 the final report to be received from -- from Dr. Smith, 22 is that right? 23 MR. GREGORY MACLELLAN: Yes. 24 MR. MARK SANDLER: And -- and we see, and 25 I'll just kind of buzz --
611 MR. GREGORY MACLELLAN: Sorry. 2 MR. MARK SANDLER: And I'll -- and we'll 3 buzz through very, very quickly, that if one looks at 4 page 49 you speak on March the 21st to Sheila Walsh in 5 person, advise her of the conversation with Dr. Smith. 6 She states: 7 "He did that last time, kept saying 8 another week. I asked if she could 9 call John Cairns..." 10 Or it probably should be Jim Cairns. 11 "...or make whatever call she could to 12 get Smith to get at this report faster. 13 She agreed." 14 Then you spoke with Dr. Bechard, the 15 Regional Coroner. 16 "Dr. Bechard advised that he has spoken 17 to Dr. Smith and requested his report 18 by Tuesday. He will attend the meeting 19 with the Crown, Sheila Walsh. He 20 agrees that Dr. Smith must be pinned 21 down on what he's been saying; must be 22 put in writing." 23 Then at paragraph 130 you call Dr. Smith's 24 office and leave a message urging him to send the autopsy 25 report for the following day. March the 26th you call
621 Dr. Smith and again request a copy of the autopsy report 2 and he says that he's sent the report to Dr. Bechard. 3 And -- and ultimately, I take it, an 4 autopsy report was indeed received from Dr. Smith, is 5 that right? 6 MR. GREGORY MACLELLAN: Yes, eventually 7 we did get one (1). 8 MR. MARK SANDLER: Now, we know from 9 moving ahead to page 55 of the overview report, that on 10 March the 27th of 1996, Sherry was arrested and charged 11 with first degree murder. 12 And do you recall -- and I -- I may be 13 able to show you document to assist, but I'll ask you 14 first: Do you recall whether you had a signed report of 15 post-mortem examination from Dr. Smith on or prior to the 16 date that she was arrested and charged with first degree 17 murder? 18 MR. GREGORY MACLELLAN: I would have to 19 see the exact date -- 20 MR. MARK SANDLER: All right. 21 MR. GREGORY MACLELLAN: -- I really 22 would. 23 MR. MARK SANDLER: Let's -- let's move 24 ahead, if we may. And if you'd go to page 57 of the 25 overview report, paragraph 148.
631 It reflects that on April the 11th -- and 2 this is a couple of weeks after the charges have been 3 laid -- a meeting was held at the Crown's office. In 4 attendance were Ms. Walsh, you, Dr. Cairns, Dr. Bechard, 5 and Dr. Smith. 6 And Dr. -- and -- and Sergeant Blakey's 7 notes reflect that it was at this meeting that Dr. Smith 8 signed his report of post-mortem examination. 9 And does that assist in refreshing your 10 memory as to -- as to that aspect of this? 11 MR. GREGORY MACLELLAN: Yes. I believe 12 that would have been the date it was signed. 13 MR. MARK SANDLER: All right. And do you 14 remember him actually signing an unsigned report in your 15 presence? 16 MR. GREGORY MACLELLAN: Yeah. I remember 17 him attending in Belleville -- 18 MR. MARK SANDLER: Right. 19 MR. GREGORY MACLELLAN: -- and signing 20 the report, and that Dr. Cairns was at that meeting, and 21 Dr. Bechard. 22 MR. MARK SANDLER: Okay. And I want to 23 ask you that, before you made reference to a conversation 24 that you'd had with Ms. Walsh about her concerns about 25 Dr. Smith, and -- and whether what he would say in Court
641 would be the same as -- as what he was saying verbally, 2 did you have any discussion with Ms. Walsh about getting 3 somebody else, another forensic pathologist, to be 4 involved in the case? 5 MR. GREGORY MACLELLAN: I believe we did 6 at some point, and -- and her -- her feeling was that we 7 couldn't, that, you know, we were sort of stuck with Dr. 8 Smith. 9 MR. MARK SANDLER: All right. Did she 10 indicate why you were stuck with Dr. Smith, or do you 11 recall? 12 MR. GREGORY MACLELLAN: Well, I -- I 13 learned, and I'm not sure if it's entirely through Sheila 14 Walsh or through other sources as well, that Dr. Smith 15 was the person that all coroners were to send suspicious 16 deaths of infants to. He was the one (1) expert. 17 And that I believe there'd been a previous 18 inquiry, or study, into infant deaths that possibly foul 19 play was being missed and in an effort to ensure these 20 cases got a proper review, I think the system involving 21 Dr. Smith was brought forth. But you know, I'm -- I'm 22 hearing this from various sources in -- in policing, and 23 probably in discussions with Sheila as well. 24 MR. MARK SANDLER: Okay. Now just before 25 I go to the April 11th meeting, how was the decision
651 made, or who did make the decision, to -- to charge 2 Sherry with first degree murder? 3 MR. GREGORY MACLELLAN: It was made in 4 consultation with Sheila Walsh. 5 MR. MARK SANDLER: All right. And -- and 6 without getting into all of the details surrounding the - 7 - the case, you've described the state of the pathology 8 evidence; did you think that the pathology evidence alone 9 was sufficient to -- to warrant the charge, or -- or in 10 your view, or in Ms. Walsh's view, was the case dependent 11 upon other circumstantial evidence? 12 MR. GREGORY MACLELLAN: The pathology 13 evidence by itself would not warrant the charge. 14 MR. MARK SANDLER: Okay. And when you 15 say that Ms. Walsh was involved in the decision, in -- if 16 one looks at the respective roles of the Crown, and the 17 police, and evaluator -- 18 MR. GREGORY MACLELLAN: The police lay 19 the charge. 20 MR. MARK SANDLER: The police lay the 21 charge. Was she consulted as to whether or not in her 22 view the evidence was sufficient to lay the charge? 23 In other words, did she figure prominently 24 in the decision? 25 MR. GREGORY MACLELLAN: Well, I stand by
661 the decision to lay the charge, and she was certainly 2 consulted as to what charge she felt the evidence would 3 support. But I had reasonable grounds to lay the charge. 4 MR. MARK SANDLER: Okay. Now if we go 5 ahead to the April 11th meeting, we see that your notes 6 reflect, and this is page 57: 7 "Doctors would not have noticed 8 fracture in a general exam. Explain to 9 Hugh Parker..." 10 Who was Hugh Parker? Do you recall? 11 MR. GREGORY MACLELLAN: Hugh Parker was 12 the counsel for the Northumberland Children's Aid 13 society. 14 MR. MARK SANDLER: Okay. 15 "Explain to Hugh Parker that Dr. Smith 16 should not testify at the CAS 17 proceeding prior to criminal trial. 18 Smith unable to get transcript from 19 evidence he gave at a Family Court, and 20 now is facing cross-examination on what 21 he said there." 22 Do you recall what -- what that 23 conversation had to do with? 24 MR. GREGORY MACLELLAN: Sheila Walsh was 25 concerned about other proceedings taking place prior to a
671 trial, and the -- the ability of -- of defence to have 2 transcripts, and to have a witness, you know, be -- be 3 cross-examined on their initial statements and then 4 transcripts and then a prelim transcript, then it becomes 5 difficult for a witness and she wanted to minimize that. 6 MR. MARK SANDLER: Okay. And then we see 7 that there's reference made to the pathologist report, 8 significant points, and these are listed. 9 And I take it these are points that -- 10 that are being obtained from -- from Dr. Smith in the 11 course of the dialogue? 12 MR. GREGORY MACLELLAN: In the dialogue 13 and in the report, I would -- 14 MR. MARK SANDLER: Okay. 15 MR. GREGORY MACLELLAN: -- think. 16 MR. MARK SANDLER: And then it says: 17 "Both are consistent with someone 18 right-handed pushing baby's head down." 19 Do you remember who would have provided 20 that comment? 21 MR. GREGORY MACLELLAN: I couldn't say 22 exactly. 23 MR. MARK SANDLER: Okay. Now I'll just 24 take you, just so that we're clear, Tab 13 of the brief 25 that you have, we actually have the post-mortem report,
681 the final post-mortem report of Dr. Smith, and you see at 2 page 6 of the document, it's PFP008524, that -- that it - 3 - there's a typewritten date of March the 21st of 1996 4 and then Charles Smith's signature. 5 Your recollection, based upon the notes 6 that read out to you, is that he signed this report in 7 your presence and that would have taken place on April 8 the 11th, is that right? 9 MR. GREGORY MACLELLAN: Yes. 10 MR. MARK SANDLER: Okay. Now if we can 11 move ahead in time from -- from April the 11th. And I'm 12 going to take you -- I'm sorry, before I move from that 13 document -- sorry, I did that a little too hastily -- if 14 you go back to page 3 of the report of post-mortem 15 examination. This is PFP008524, at page 3, we see that 16 under "Head, skull and Osseous System," about two-thirds 17 (2/3s) of the way down under skull, it says: 18 "Normal. There was no evidence of 19 skull fracture." 20 MR. GREGORY MACLELLAN: Yes. 21 MR. MARK SANDLER: And -- and was that 22 the information that had been communicated to you through 23 Dr. Smith's report at that time, in -- 24 MR. GREGORY MACLELLAN: Yes. 25 MR. MARK SANDLER: -- namely April of
691 1996? 2 MR. GREGORY MACLELLAN: Yes. 3 MR. MARK SANDLER: And that changes later 4 on, doesn't it? 5 MR. GREGORY MACLELLAN: Yes. 6 MR. MARK SANDLER: And we're going to go 7 there in a few moments. 8 Now if I can take you back to the overview 9 report and if you'd go to page 59, paragraph 152, and 10 here we see that on January the 10th of 1997, in 11 anticipation of the -- of the preliminary inquiry that's 12 about to commence, Mr. Hillier, who's the defence 13 counsel, writes to Sheila Walsh, copy to you, and 14 reflects: 15 "As you know we've tried unsuccessfully 16 on several occasions using various 17 methods of communication to get Dr. 18 Smith to provide us with the slides as 19 per our agreement before Christmas. 20 The matter was left with Dr. Smith, 21 given his apparent family crisis, that 22 he would get back to us upon his return 23 with respect to the slides. 24 It's now January 10th and we've heard - 25 - we haven't heard from anyone and the
701 purpose of this letter is simply to 2 communicate to you firstly, and 3 secondly to advise you that I will be 4 asking and attempting to insist that my 5 cross-examination of Dr. Smith not take 6 place as and until I have the slides 7 and have them reviewed by my expert." 8 And then he also reflects at the -- at the 9 end of -- of the letter, at page 60: 10 "I am reminded that the x-ray of the 11 foot is also part of this package that 12 we've been seeking for some 13 considerable period of time and I would 14 ask that someone remind Dr. Smith about 15 that in the event that he's eventually 16 going to produce this material." 17 Was there an issue about the production of 18 the slides or the x-rays that arose in anticipation of 19 the preliminary inquiry, that you can recall? 20 MR. GREGORY MACLELLAN: Again it was -- 21 it was difficult to reach Dr. Smith and then there was 22 various reasons; we hadn't had time to prepare things or 23 we just couldn't tee-up, scheduling problems. It was 24 just difficult to facilitate this transfer of -- of these 25 slides to the defence.
711 MR. MARK SANDLER: All right. Now, 2 another issue appears to have arisen, as reflected at 3 paragraph 154, and this reflects that on January the 4 15th, Crown counsel writes to the defence and says: 5 "I've just been informed by Dr. Smith 6 that one (1) of the microscopic slides 7 from the post-mortem discloses a skull 8 fracture. Dr. Smith apparently just 9 realized that the fracture is not noted 10 in his report. I have asked Dr. Smith 11 to send me a description of the 12 fracture and will disclose this as soon 13 as I receive it." 14 And we can see immediately below that, 15 that Ms. Walsh writes to Dr. Smith regarding his amended 16 opinion. She says, at the top of page 61: 17 "Kindly send your amended description 18 concerning the skull fracture. Upon 19 review of your post-mortem report, I 20 note that at page 3, paragraph 7, the 21 description is skull normal, there was 22 no evidence of skull fracture. Would 23 you therefore include a brief note 24 explaining what happened, i.e., does 25 this mean there was no evidence of
721 fracture that was visible to the plain 2 eye, but was later discovered through 3 microscopic examination? I appreciate 4 you're very busy, however, a very short 5 note could provide the necessary 6 information for me to disclose to 7 counsel for the defence." 8 And then if you skip ahead to page 63 you 9 see that on April the 8th, which is four (4) months 10 later, Ms. Walsh writes to Dr. Smith and says: 11 "Please find enclosed a copy of a 12 letter from defence counsel requesting 13 further information from you concerning 14 the skull fracture of the deceased 15 infant. Would you be able to comply 16 with this request?" 17 Now, we've noted at paragraph 159, the 18 Commission doesn't currently have a record of Dr. Smith's 19 written reply, if any. Do you know whether Dr. Smith 20 ever provided, in writing, the information concerning the 21 skull fracture that was being requested, both by the 22 Crown and by Mr. Hillier? 23 MR. GREGORY MACLELLAN: I can't say if he 24 ever did or not. I know Commission got their materials 25 in -- in large part from the brief that was still at the
731 Quinte West OPP detachment, but it was torn apart and 2 condensed, and I can't say if -- if we ever received a 3 written reply or not. 4 MR. MARK SANDLER: Okay. It appears that 5 -- that you hadn't received it as of April the 8th of 6 1997, in any event. 7 MR. GREGORY MACLELLAN: Apparently not. 8 MR. MARK SANDLER: Now, had you had 9 conversation -- had either you or Ms. Walsh had 10 conversation with Dr. Smith as to how it was that -- that 11 this skull fracture was only coming to light well after 12 his post-mortem report had been prepared and provided to 13 you? 14 MR. GREGORY MACLELLAN: We had a meeting 15 with him in Toronto. Myself and Sheila Walsh came out 16 and spoke to him in -- in preparation for his evidence in 17 the prelim. 18 MR. MARK SANDLER: All right. And what 19 explanation, if any, did he provide as to why it was that 20 the skull fracture was only coming to light? 21 MR. GREGORY MACLELLAN: I believe he said 22 it was a typo -- that it wasn't included in the original 23 report. I -- I questioned him as to whether he had, in 24 fact, discovered this fracture in his preparation for the 25 preliminary hearing, and if so, to state it that way.
741 And he insisted that no, he had discovered 2 it during the initial exams, before the final report, and 3 that it was, I believe, a typo as to why it didn't appear 4 in the report. 5 MR. MARK SANDLER: All right. So that -- 6 so that -- I take it, your question arose, in part, 7 because his report of post-mortem examination wasn't just 8 silent on whether -- silent on the issue, but it actually 9 said, "no evidence of skull fracture", and here he was 10 saying there was a skull fracture. 11 MR. GREGORY MACLELLAN: And I had 12 numerous conversations with him through that period, and 13 it was not mentioned. 14 MR. MARK SANDLER: Okay. But he said 15 that he had seen it all along, but it, just through a 16 typo, hadn't made its way into the report. You actually 17 have to say -- 18 MR. GREGORY MACLELLAN: Correct. 19 MS. MARA GREENE: -- "yes" or "no" -- 20 MR. GREGORY MACLELLAN: Correct. 21 MR. MARK SANDLER: -- so it's picked up. 22 Okay. So let's move ahead, if we may. Now, if I can 23 take you to paragraph -- excuse me for a moment. I'll 24 ask you something else before I go there. 25 Leaving aside the discussion about the
751 skull fracture, did you have any discussion with him 2 about the photographs that had been taken at the autopsy? 3 MR. GREGORY MACLELLAN: Yes. 4 MR. MARK SANDLER: Tell the Commissioner 5 about that discussion if you would? 6 MR. GREGORY MACLELLAN: Again, at the 7 same meeting, I think it was February 10th, in Toronto, 8 myself, Sheila Walsh and Dr. Smith at Sick Kids Hospital. 9 And at one point, Sheila Walsh asked him about 10 photographs taken by the autopsy team as they needed to 11 be disclosed to defence. 12 And he -- he replied, What photographs? 13 And she pointed out to him in -- in my notes that there 14 were photographs taken. At which time he turned to me, 15 and you know, he was quite upset. He pointed his finger 16 at me, I told you not to take notes. 17 And I advised him that, you know, he was 18 not going to tell me how to do my job. 19 MR. MARK SANDLER: All right. How were 20 you feeling about Dr. Smith at this point in time? 21 MR. GREGORY MACLELLAN: You know, my 22 opinion of Dr. Smith is not good at -- at this point in 23 time. And I had been asked not to talk to him directly 24 anymore, as it -- it was too upsetting for him. 25 And I'm sitting here with Sheila Walsh.
761 She's making a legitimate request about photos that I 2 noted, and they have to be disclosed. And he's upset 3 about it, and I don't understand why. 4 MR. MARK SANDLER: All right. Now you 5 made reference of the fact that you'd been told not to 6 directly speak to him again. Who -- who gave you that -- 7 news? 8 MR. GREGORY MACLELLAN: The Regional 9 Coroner for our area, Dr. Bechard. 10 MR. MARK SANDLER: All right. And what 11 was it that he had told you? 12 MR. GREGORY MACLELLAN: Well, literally 13 that. It was after a lunch -- after a meeting and we 14 were walking back from a restaurant to the Crown's office 15 in Belleville, and he just felt that my calls or -- and 16 conversations for Dr. Smith could come through him, as me 17 contacting him directly was too upsetting. 18 MR. MARK SANDLER: All right. Did you 19 have any indication as to what it was about your contacts 20 with Dr. Smith that had so upset Dr. Smith that he didn't 21 want to deal with you directly? 22 MR. GREGORY MACLELLAN: Well, I don't 23 want to be guessing, but I would think it was my 24 persistence. 25 MR. MARK SANDLER: Okay.
771 (BRIEF PAUSE) 2 3 MR. MARK SANDLER: Now if we could move 4 to page 64 of the overview report, we actually see that - 5 - that the preliminary hearing was held in January and on 6 dates in May and September of 1997 and early January of 7 1998, before Justice Hunter in Quinte West in Ontario. 8 And that Dr. Smith testified on January 9 the 12th of 1998. And -- and there's reference 10 immediately thereafter to the fact that Ms. Walsh wanted 11 to speak to him in anticipation of his preliminary 12 hearing evidence. 13 And the meeting that did take place, is 14 that the meeting that you're making reference to where 15 there was discussion both concerning the photographs that 16 had been take by the autopsy staff, and -- and also the 17 discussion about how it was that the skull fracture had 18 not made it's way into the report of post-mortem 19 examination? 20 MR. GREGORY MACLELLAN: No, in 21 preparation for this, I'm -- I'm pretty sure it was the 22 10th of February. 23 MR. MARK SANDLER: Okay. 24 MR. GREGORY MACLELLAN: That meeting. We 25 could look at it in my notes to confirm?
781 MR. MARK SANDLER: All right. So -- so 2 you've looked at your notes, and that's -- that's when 3 you're confident -- 4 MR. GREGORY MACLELLAN: That's my memory 5 from -- 6 MR. MARK SANDLER: -- it took place? All 7 right. And that would have been February of -- 8 MR. GREGORY MACLELLAN: '97. 9 MR. MARK SANDLER: -- 1997? 10 MR. GREGORY MACLELLAN: Yes. 11 MR. MARK SANDLER: All right. Now if we 12 can move from the Preliminary Inquiry, and I don't intend 13 to ask you about his evidence at the Preliminary Inquiry. 14 We've heard quite a bit about it -- a lot up until this 15 point in time. 16 If you'd go to page 88. 17 18 (BRIEF PAUSE) 19 20 MR. MARK SANDLER: Sorry, I'll go back to 21 -- to page 87. And this is the section of the overview 22 report that deals with preparation for -- for the 23 upcoming trial. And Ms. Walsh is writing to -- to a Mr. 24 Peltier, seeking approval from him for funding for the 25 production of transcripts of police interviews.
791 And she reflects at the fourth paragraph: 2 "The investigating Police Force is 3 Quinte West Police. In the time since 4 this charge was laid, the Force went 5 through a bidding war with OPP, and won 6 the municipal contract to police the 7 area. As a result of their low bid, 8 they have no money. The Force is 9 refusing to provide transcripts." 10 She talks about the cost of the 11 transcripts: 12 "Time is running out. This case has 13 already taken a long time to get to 14 trial. A great deal of the delay is 15 attributable to a Crown witness, Dr. 16 Smith. I'm very worried about the 17 consequences if this trial is adjourned 18 because we don't have transcripts. I 19 understand that our Ministry's position 20 is that the police must provide 21 transcripts of videotaped evidence. 22 The investigating officer and I both 23 believed up until now that Quinte West 24 would do so. There was a possibility 25 that the case would be resolved by way
801 of plea of guilty up until the last 2 week of October '98. I agreed with the 3 investigating officer it made sense not 4 to incur the expense until we were sure 5 that the trial would proceed. As soon 6 as I knew there would be no plea of 7 guilt, I advised the investigating 8 officer and asked for the transcripts. 9 Now the Deputy Chief who controls the 10 finances refuses to authorize the 11 funding." 12 And -- and she's making a request for 13 funding for the transcripts, and I'm not going to ask you 14 about all of the machinations that were going on within 15 the police service and why money was so short for 16 transcripts, but -- 17 MR. GREGORY MACLELLAN: Well, on that 18 point, since it's stated here -- 19 MR. MARK SANDLER: Sure. 20 MR. GREGORY MACLELLAN: -- it -- it's -- 21 I don't agree entirely with her comments here. 22 MR. MARK SANDLER: Okay. 23 MR. GREGORY MACLELLAN: It had nothing to 24 do with the bidding. This -- this was a new area for us. 25 We -- we were just -- during this investigation, we were
811 just moving to a computer system. 2 We were, you know, in -- in the early 3 stages of beginning to take videotaped statements. We -- 4 we hadn't done a lot of videotaped statements before 5 that. 6 There was a real dispute as to who was to 7 provide transcripts. We were to provide, and -- and our 8 understanding, all of the evidence we'd collected to the 9 Crown. But to come back and say, You shall do the 10 transcript, we didn't agree. 11 We had a lot of dispute with the Crown 12 about disclosure issues. Our duty was to provide one (1) 13 copy of everything. And we didn't even like making the 14 extra copies for the Crown, and we stopped doing it 15 eventually. 16 And it was quite a -- quite a discussion 17 and negotiation with Sheila Walsh over time when she 18 became the actual Crown. That had continued for some 19 time, so. 20 MR. MARK SANDLER: Okay. Well, I'm glad 21 you clarified that then. 22 She makes reference to the fact that 23 there's been discussions, which, at least, at that point 24 in -- in her communication, appear to have fallen 25 through, about a possibility of a guilty plea.
821 And -- and were you aware that that -- 2 that that dialogue was going on with the defence? 3 MR. GREGORY MACLELLAN: Yeah. I couldn't 4 tell you the exact date I became aware. I think it went 5 on for some time before I became aware. 6 MR. MARK SANDLER: All right. 7 MR. GREGORY MACLELLAN: But I -- I did 8 know about it before the trial. 9 MR. MARK SANDLER: And -- and had you had 10 discussions with Ms. Walsh about the state of the Crown's 11 case, and whether or not this was a case where the Crown 12 should entertain some negotiated disposition? 13 MR. GREGORY MACLELLAN: We had 14 discussions about the elements of the offense; 15 infanticide and how the evidence applied. 16 We -- we had discussions about the 17 elements of the offense for second degree murder and how 18 the evidence applied. 19 So -- so yeah, we did discuss that. 20 MR. MARK SANDLER: All right. And was 21 Ms. Walsh, or you, confident that reasonable doubt could 22 be overcome in connection with the second degree charge - 23 - murder charge that was before the Court? 24 MR. GREGORY MACLELLAN: I was confident 25 that I had reasonable grounds to put this before the
831 Court. And she -- Sheila Walsh was, as well; that she 2 had no problem going forward with the charge, and -- and 3 through the process; did receive a committal at a 4 preliminary hearing. 5 So again we had confidence to take it 6 forward, but at the same time, when you review 7 infanticide, that there -- the elements of the offense 8 were met. And there's no doubt that there were, you 9 know, things about this case, in that it's a 10 circumstantial case; there's no exclusive opportunity; we 11 don't have a pathologist that says it's murder or 12 homicide; it could be natural causes as well. 13 So there certainly was room for a defence 14 to try to raise reasonable doubt. 15 MR. MARK SANDLER: Okay. And ultimately, 16 as I understand it, this was -- this proceeded to Court 17 by way of what the lawyers would call, even though we 18 don't formally have this, a no-contest plea -- where -- 19 where facts are read in; the defence did not admit guilt 20 but did not dispute the facts; and on that basis, a 21 finding of guilt on the charge of infanticide was made. 22 Is that right? 23 MR. GREGORY MACLELLAN: Yes. That was 24 kind of new to me. 25 MR. MARK SANDLER: All right. Was your
841 understanding -- was your understanding that -- that that 2 was rooted in the fact that she wasn't admitting that -- 3 that she had committed the crime, but didn't want to 4 contest it? 5 Is -- is that how you understood what the 6 "no plea -- no contest" meant? 7 MR. GREGORY MACLELLAN: The -- the "no 8 contest" meant that she was not going to stand up and say 9 she had committed the crime and that she would not agree 10 to that. 11 MR. MARK SANDLER: Okay. Now, if you 12 would go to page 94, and I just want to ask you about 13 some of the events that occur after the conviction takes 14 place and -- and sentencing has occurred. 15 We see that on December the 19th, and this 16 is page 94, paragraph 187. December the 19th, 2000, Ms. 17 Walsh writes to Mr. Bradley, who was then prosecuting the 18 Sharon case which we'll hear a little bit more about in a 19 few minutes, and she was writing to him regarding the 20 Tiffani and Joshua cases. 21 And stopping there for a moment. You've 22 already alluded to the fact that Ms. Walsh had been 23 involved with Dr. Smith in another case prior to the 24 Joshua case, is that right? 25 MR. GREGORY MACLELLAN: Yes.
851 MR. MARK SANDLER: And she says: 2 "With respect to the Joshua case, Dr. 3 Smith initially prepared an autopsy 4 report which said that there was no 5 injury in the baby's skull. He then 6 later called me to say that upon 7 reexamination of the autopsy slides, he 8 discovered a skull fracture. Again, I 9 requested a written report concerning 10 this fracture and again, he would not 11 provide it. We were not depending on 12 Dr. Smith to prove the cause of death, 13 but rather to rule out certain things. 14 The presence of the skull fracture was, 15 of course, extremely important to the 16 case. Again, I never did get a report 17 about this. 18 Dr. Smith's very quick to condemn other 19 pathologists who miss things during the 20 post-mortem. Of course, this opened 21 the door for the defence to say that he 22 could have missed other things. The 23 defence retained their own pathologist 24 and obtained an order for the release 25 of the autopsy slides on certain
861 conditions to the defence expert for a 2 second opinion. We worked out a plan 3 to have the slides delivered. The 4 slides did not get delivered. Again, 5 Dr. Smith ignored my calls and letters. 6 Finally, I found out that he had lost 7 the slides. They remained lost for a 8 period of time, but they were 9 eventually found. If they had not been 10 found, our case would have likely been 11 at an end. Some x-rays were also lost 12 and were never found. I don't know if 13 this was Dr. Smith's fault or it was 14 someone else's." 15 And just stopping there for a moment. 16 Were -- were you aware of the facts that she's described 17 there in terms of the autopsy slides, first not being 18 provided, then apparently being lost, then apparently 19 being found? 20 MR. GREGORY MACLELLAN: I'm not aware of 21 the lost part. I -- I do remember that it was a long 22 time and a lot of effort to, eventually, get those 23 slides. 24 MR. MARK SANDLER: All right. And she 25 makes reference to some x-rays that were lost and were
871 never found. Can you assist as to whether that was the 2 case? 3 MR. GREGORY MACLELLAN: When myself and 4 Sergeant -- I guess Constable DeLong, at the time, when 5 we went to Belleville General Hospital and escorted 6 Joshua to Sick Kids, we were given original x-rays that 7 were taken at Belleville General Hospital. 8 I turned those over to Dr. Smith, and they 9 were never found again. 10 MR. MARK SANDLER: Okay. And in the last 11 paragraph of her letter it says: 12 "In the Joshua case, I ultimately took 13 a plea of guilt to failing to provide 14 necessaries." 15 And stopping there. She's -- she's wrong 16 about that, it was an infanticide charge, right? 17 MR. GREGORY MACLELLAN: Correct. 18 MR. MARK SANDLER: It says: 19 "While there are a number of 20 considerations that went into that 21 decision, one (1) significant one (1) 22 was my experience with Dr. Smith." 23 And what I want to ask you, did you have a 24 discussion with Ms. Walsh that -- that reflected that in 25 part, one (1) of the considerations for her in accepting
881 the reduced charge of infanticide had to do with 2 confidence issues concerning Dr. Smith and what he would 3 say? 4 MR. GREGORY MACLELLAN: I can't say 5 specifically we had that conversation. I mean, like she 6 made it very clear to me her lack of confidence in Dr. 7 Smith from early on. I can't say she phrased it in that 8 way. 9 MR. MARK SANDLER: All right. Now, if 10 you'd go to page 110 of the overview report, we actually 11 see -- and I -- I may be moving into this a little bit 12 too quickly. If I go back to 106, just so you'll have 13 some context, we see that in -- in 2006, Dr. Pollanen, 14 the Chief Forensic Pathologist for the Province of 15 Ontario, was asked by the Chief Coroner's Office to 16 review the forensic pathology in the Joshua case. 17 And -- and his findings were -- are 18 reproduced. His summary of conclusions is reproduced at 19 page 109, extending into 110. 20 And what I want to ask you: Did you 21 continue to be involved in the case during the review by 22 Dr. Pollanen of the findings that had previously been 23 made by Dr. Smith? 24 MR. GREGORY MACLELLAN: No, I wasn't made 25 aware of any of this until -- until after they had really
891 decided that it was going to be one of the cases for this 2 Commission to look at. 3 MR. MARK SANDLER: Okay. He finds -- if 4 one looks at page 110, he says: 5 "In summary, my major conclusions upon 6 review of the available materials are: 7 There is no neck injury. The neck 8 hemorrhages reported by Dr. Smith are 9 autopsy artifacts." 10 Stopping there for a moment, did -- did 11 Dr. Smith ever discuss with you the possibility that the 12 neck hemorrhages were -- were artifacts or do you recall? 13 And -- and I'm not speaking to some of -- 14 some of these issues were addressed at the preliminary 15 inquiry, I'm just asking the extent to which, prior to 16 the preliminary inquiry, he had any discussions with you 17 along these lines? 18 MR. GREGORY MACLELLAN: I'm not sure I 19 ever heard the term "artifacts". 20 MR. MARK SANDLER: All right. 21 MR. GREGORY MACLELLAN: And I'm not sure 22 I fully understand it here today. 23 MR. MARK SANDLER: All right. An 24 artifact would be something that's produced as a result 25 of the dying process or -- or the work that was done on
901 the body post-death. That's how the term artifact has 2 been described here. In other words, these are findings 3 that are unrelated -- unrelated to events that preceded 4 death. 5 MR. GREGORY MACLELLAN: Okay. There were 6 discussions around, I believe I asked questions around, 7 could the -- the work that the -- the emergency doctors 8 and the medics did to try to revive Josh, well, could 9 that have caused the fracture on the left ankle, could it 10 have caused the -- the bleeding, I believe, in the skull 11 and stuff like that. So there were questions like that 12 asked. 13 MR. MARK SANDLER: Right. And -- and in 14 general terms, do you remember how he responded to that? 15 MR. GREGORY MACLELLAN: The facture in 16 the left ankle was determined to -- in their examination 17 to be healing, so therefore they said it was -- it 18 occurred prior to death and that they didn't believe the 19 insertion of the intravenous, the attempt to put into the 20 bone, had caused the fracture. 21 MR. MARK SANDLER: Right. 22 MR. GREGORY MACLELLAN: And the -- I 23 don't remember exactly, as far as the bleeding. I 24 couldn't tell you exactly what was said. 25 MR. MARK SANDLER: Okay. Just skipping
911 to Item 4: 2 "There's a hazardous sleeping 3 environment that readily explains death 4 on an accidental basis." 5 He's got that under Item 4 and then also 6 under Item 5 on that same page. 7 Was there any discussion about the 8 possibility with Dr. Smith that -- that the cause of 9 death or the scene supported an accidental asphyxial 10 death in an unsafe or hazardous sleeping environment? 11 MR. GREGORY MACLELLAN: There were 12 discussions around, could the baby smother in the 13 blankets type thing. 14 MR. MARK SANDLER: All right. And -- and 15 did he accept that as a possibility? 16 MR. GREGORY MACLELLAN: I -- I believe he 17 felt like in an ex -- it would have be extreme. He 18 didn't think this case was a result of that type of 19 suffocation. 20 MR. MARK SANDLER: Okay. And then 21 there's -- 22 COMMISSIONER STEPHEN GOUDGE: Did he 23 explain why? 24 MR. GREGORY MACLELLAN: I'm trying to 25 remember. I believe he addressed it somewhere in his re
921 -- in -- in his -- maybe I'm talking now from his 2 transcript but, which I read recently but I -- I don't' - 3 - can't explain to you how he explained why, right now; 4 like, he didn't feel it was the cause. 5 COMMISSIONER STEPHEN GOUDGE: Because you 6 did not understand the explanation when you read it? 7 MR. GREGORY MACLELLAN: It -- 8 COMMISSIONER STEPHEN GOUDGE: Or because 9 you cannot recall it? 10 MR. GREGORY MACLELLAN: I can't recall. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: All right. And -- and 14 in fairness to Dr. Smith, those -- a number of these 15 matters are dealt with during the preliminary inquiry in 16 cross-examination. I'm really just interested in what 17 you recall of the conversations that preceded the 18 preliminary inquiry while -- and if you don't recall, 19 that's fine. 20 We also know that as a result of Dr. 21 Pollanen's view that this was likely not a skull 22 fracture, that a decision was made to exhume Joshua's 23 body. 24 Again, were you involved in the exhumation 25 decision in any way?
931 MR. GREGORY MACLELLAN: No. 2 MR. MARK SANDLER: And were you made 3 aware of the fact that after exhumation Dr. Pollanen 4 opined that -- that this was definitely not a skull 5 fracture case? 6 MR. GREGORY MACLELLAN: I wasn't aware of 7 any of that until things started coming out in the -- in 8 the press. 9 MR. MARK SANDLER: Okay. Now I've 10 completed the questions that I want to ask you, Sergeant 11 MacLellan, about the Joshua case. 12 Are there recommendations that you'd like 13 to direct to the Commissioner arising out of your 14 experience in this case or others to assist him in the 15 work that he's doing? 16 MR. GREGORY MACLELLAN: Yes, if I may? 17 MR. MARK SANDLER: Yes, please. 18 MR. GREGORY MACLELLAN: I've -- I've now 19 worked almost twenty-three (23) years in policing, and 20 I've been very involved in the criminal investigation 21 side of things, and as such, I've also been heavily 22 involved in local committee work in the -- in the Quinte 23 area as far as domestic violence, sexual assault, and inv 24 - involving the Children's Aid Society as well. 25 And as part of a -- one of the committee's
941 work, we obtained funding from a Trillium grant, and did 2 a lot of work around the development of protocols between 3 agencies so that we could get some consistency. 4 For instant, the CAS deals with several 5 police services, and they would certainly like to have a 6 similar experience with each police service. So 7 protocols were developed, over time, that assisted in 8 each play and understanding the roles of the others in an 9 investigation when we work together. 10 Because we -- we can't solve things 11 independently; we have to work together. And we each 12 have a role, and sometimes that role is -- is slightly 13 different. In that with Children's Aid, it's the 14 protection of the child that is paramount. 15 Where in policing, that is certainly -- 16 safety is number 1, but also things have to be done in 17 such a manner that it will support an investigation and 18 stand up as evidence down the road. 19 So interviewing has to be conducted in a 20 certain way. So -- and this was a -- I'm from a small 21 service at that time, no experience, never done a 22 suspicious death type investigation where you treat it as 23 a homicide until proven otherwise as far as investigative 24 purposes. 25 And a protocol, had there been one in
951 place, that I could have referred to in what to expect 2 from pathologist searches; Dr. Smith; what could I expect 3 from the Chief Coroner's Office; and what -- what the 4 role of the police would be, say in an examining room, 5 would have helped; would have helped a lot in my 6 understanding of -- of just where I should be at. 7 And I know that protocols are general 8 terms. They're guidelines. They're certainly not 9 something you -- you live by with -- that people don't 10 refer to them day to day, but they always include a 11 dispute resolution portion as well, that when you are 12 having problems, it's something you can pull out and -- 13 and see whether we're on the right track; whether we're - 14 - here's what we've all agreed is our part in these types 15 of investigations. 16 And if things are going not well, you can 17 come back to that type of document, remind everyone of, 18 Hey, here's how we work together, and go forward, and, 19 hopefully, resolve whatever issues have arose. 20 COMMISSIONER STEPHEN GOUDGE: Would you 21 envisage a protocol, Sergeant, between the Office of the 22 Chief Coroner and the OPP or -- that is, who on the 23 police services side? 24 MR. GREGORY MACLELLAN: Well, I think we 25 can talk about policing in general, because there are
961 policing standards that -- that sort of require all 2 police services in Ontario -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MR. GREGORY MACLELLAN: -- to meet in the 5 same standards. And we keep such a protocol general 6 enough that you could have all police services be -- 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 MR. GREGORY MACLELLAN: -- be 9 represented. But part of what I wanted to talk about is 10 the uniqueness of a small service who would not be faced 11 with such a case very often. 12 COMMISSIONER STEPHEN GOUDGE: I take it, 13 in the context of your experience in the case you've 14 described this morning, that you would have really 15 appreciated a protocol to know what the timeliness of 16 response would be that you could expect from the Chief 17 Coroner's Office and the pathologist that they had 18 obtained? 19 MR. GREGORY MACLELLAN: Sure. Some -- 20 some guidelines surrounding times, like maybe not -- 21 COMMISSIONER STEPHEN GOUDGE: But that's 22 an example. 23 MR. GREGORY MACLELLAN: -- in general. 24 COMMISSIONER STEPHEN GOUDGE: But that 25 presumably would be the product of a discussion between
971 policing on one side and the Chief Coroner's Office on 2 the other? 3 MR. GREGORY MACLELLAN: Yes. 4 COMMISSIONER STEPHEN GOUDGE: Who on the 5 policing side? 6 MR. GREGORY MACLELLAN: Well, I think you 7 would have to, in Ontario, probably have something from 8 the provincial level, the Ministry -- 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 MR. GREGORY MACLELLAN: -- as well as you 11 know, representatives from major and -- and smaller 12 services -- 13 COMMISSIONER STEPHEN GOUDGE: Right. So 14 some representative -- 15 MR. GREGORY MACLELLAN: -- to help them 16 out, yeah. 17 COMMISSIONER STEPHEN GOUDGE: -- group of 18 policing services. 19 MR. GREGORY MACLELLAN: Yes. But in -- 20 in -- then within that, some sort of recognition and -- 21 and addressing of the needs of a smaller service might be 22 different. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 Right. 25 MR. GREGORY MACLELLAN: And they may even
981 need a liaison officer assigned to assist or -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 MR. GREGORY MACLELLAN: -- or something 4 along those lines, and certainly a dispute resolution 5 process that could help keep everyone on track if things 6 were -- people were experiencing difficulties. 7 And these -- these may not be because of 8 individuals doing anything wrong. It's just, sometimes, 9 sitting people down and bringing back in focus is all it 10 takes. I think the protocol would be certainly 11 important. 12 Along with protocols come training; su -- 13 such training would have to exist for officers and the 14 pathologists involved, and whoever the oversight is from 15 the Chief Coroner's Office. 16 Certainly training for -- this will be a 17 new point -- training for pathologists on rules of 18 evidence continuity. I think, and -- and this is purely 19 my own impression from looking back, that sometimes the - 20 - the strict scientific method is maybe okay. 21 They understand the scientific method, 22 therefore, everything is covered off as far as continuity 23 and rules of evidence, but it's -- I don't believe it is 24 exactly the same and there are differences. And then 25 there's difference between such continuity for a civil
991 proceeding versus a criminal, so I don't think they have 2 -- I certainly didn't think Dr. Smith had an 3 understanding of that process very well. 4 And the -- I had a case sometime after 5 this where again I was directed to send an infant that 6 had passed away to Dr. Smith by a coroner, in which I 7 argued against, but at that time, it still existed that, 8 No, he is the one (1) person, and that basically, the 9 Regional Coroner told me I have no choice and that's 10 where it is, and so I'd just like to make the point that 11 having one (1) person -- setting one (1) person up as a 12 sole person is not good. 13 I -- I know, in reviewing the materials 14 here, that some of the systems elsewhere have a peer 15 review and it sounded like a good process to me, before I 16 solve it. So these are just general things and that's 17 it. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Thank you very much. 21 COMMISSIONER STEPHEN GOUDGE: It's very 22 helpful. Thank you, Sergeant. 23 MR. GREGORY MACLELLAN: You're welcome. 24 MR. MARK SANDLER: Commissioner, would 25 this be an appropriate time?
1001 COMMISSIONER STEPHEN GOUDGE: Sure. We 2 will break, then, for fifteen (15) minutes. 3 4 --- Upon recessing at 11:47 a.m. 5 --- Upon resuming at 12:08 p.m. 6 7 THE REGISTRAR: All rise. Please be 8 seated. 9 COMMISSIONER STEPHEN GOUDGE: Mr. 10 Sandler...? 11 MR. MARK SANDLER: Commissioner, when I 12 proposed we started a half an hour late today, why don't 13 we go, I'd suggest, to lunch at the normal time and I'll 14 continue on after lunch, and if it means we have to go a 15 little bit later at the end of the day, I trust that that 16 works for you. 17 COMMISSIONER STEPHEN GOUDGE: That's 18 fine. Yes, I think that's the sensible way to do it. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: All right. Inspector 22 Begbie, if I can turn to you now and ask you some 23 questions in connection with the Sharon case, and you've 24 indicated right at the outset of today's proceedings that 25 you were one (1) of the investigating officers in
1011 relation to that homicide case, is that right? 2 MR. BRIAN BEGBIE: I -- I was. 3 MR. MARK SANDLER: All right. And let me 4 just ask you generally, do -- do the Kingston Police 5 generally have involvement in pediatric forensic death 6 cases or is that very much the exception? 7 MR. BRIAN BEGBIE: Thankfully, we don't 8 get very many and haven't had very many, but if they 9 occurred in our jurisdiction, we would do them, 10 obviously. 11 MR. MARK SANDLER: All right. And can 12 you tell me, prior to this case, had you attended 13 autopsies as -- as whether in an adult or pediatric death 14 investigation? 15 MR. BRIAN BEGBIE: Yes, both. 16 MR. MARK SANDLER: And over in the -- 17 over the years, have you attended a number of autopsies? 18 MR. BRIAN BEGBIE: A number. 19 MR. MARK SANDLER: All right. And to 20 your knowledge, Detective Sergeant Bird, who was the case 21 manager on this file, has attended many autopsies over 22 the years, as I understand it. 23 MR. BRIAN BEGBIE: Many more than I, yes. 24 MR. MARK SANDLER: Okay. And what I do 25 want to ask you, systemically, is -- is the kind of
1021 information that should be communicated, in your view, to 2 the forensic pathologist, and I'll tell you what I'm 3 thinking about. 4 In -- in the Sharon case, we know that the 5 police had accumulated information that I'm going to ask 6 you about a little bit later, about the mother's 7 involvement with Children's Aid proceedings, for example, 8 right? 9 MR. BRIAN BEGBIE: Sorry? 10 MR. MARK SANDLER: That the police, in 11 the course of your investigation, had accumulated 12 information about CAS proceedings and -- and the like? 13 MR. BRIAN BEGBIE: Sorry, yes. Correct. 14 MR. MARK SANDLER: Right? 15 MR. BRIAN BEGBIE: Correct. 16 MR. MARK SANDLER: And -- and as well, 17 the -- the police had accumulated information that -- 18 that was relied upon as inculpatory, or arguably 19 inculpatory statements from -- from Sharon's mother, am I 20 right? 21 MR. BRIAN BEGBIE: Yes, correct. 22 MR. MARK SANDLER: This is what I want to 23 ask you: When presenting to the forensic pathologist, in 24 your view, how much of that information should be 25 communicated by the police?
1031 MR. BRIAN BEGBIE: I can speak from my -- 2 my experience. Very little of that information is even 3 known, generally speaking, at the time of the autopsy 4 because the first few days of -- of a homicide, or of a 5 death investigation, are very intense, and you throw a 6 lot of resources at them. 7 And in that particular case, it wasn't one 8 (1) of the investigators that went to the autopsy. 9 MR. MARK SANDLER: Okay. 10 MR. BRIAN BEGBIE: It was somebody from 11 the Forensic Identification Unit, and they wouldn't have 12 had access to that information, per se, anyway, unless it 13 was something that had to be relayed. But they wouldn't 14 have had all the background, the CAS. They wouldn't have 15 had all that. 16 MR. MARK SANDLER: All right. But -- but 17 leave that aside for -- for a moment, and -- and I'm not 18 really going to talk about the Sharon case -- for -- for 19 just two (2) minutes. 20 Let's just assume that prior to the 21 autopsy, the police are all ready made aware of an 22 inculpatory statement that's been made by a suspect, or 23 already aware of a -- in a pediatric death investigation, 24 of prior difficulties that a suspect may have had with -- 25 with Children's Aid proceedings.
1041 In your view as a matter of systemic 2 interest, do you feel it's appropriate to communicate 3 that kind of information to the forensic pathologist? 4 MR. BRIAN BEGBIE: I would have to say, 5 on a case by case kind of basis and what the actual 6 information was, generally speaking I'd say it's probably 7 not something that they have to know at that time. 8 Generally speaking. 9 But if there was say another child that 10 had suffered severe injuries, or -- or abuse, or 11 something of the nature and we suspected it here, it may 12 be in fact something that we would discuss. 13 MR. MARK SANDLER: Okay. Now on -- we 14 know in the Sharon case that on June the 12th of 1997, 15 the night of Sharon's death, officers attended the home 16 and found Sharon's body in the basement. And that 17 evening, were the police, as far as you were aware, alive 18 to the presence of a pit bull in the home earlier that 19 evening? 20 MR. BRIAN BEGBIE: No, we were not. 21 MR. MARK SANDLER: All right. Was there 22 some awareness of another dog named Snoopy, at that point 23 in time? 24 MR. BRIAN BEGBIE: Yes. 25 MR. MARK SANDLER: All right. And that
1051 was a smaller dog, as I understand it. 2 MR. BRIAN BEGBIE: It was a tiny, little, 3 furry white mutt. 4 MR. MARK SANDLER: Okay. And if I can 5 take you to the overview report, PFP144453, which is at 6 Tab 1 of your materials. And I'm going to take you to 7 page 15 if I may, paragraph 39. I'm sorry, page 14, 8 paragraph 39. 9 MR. BRIAN BEGBIE: Okay. 10 MR. MARK SANDLER: And we see that on 11 June the 13th of 1997, you were involved in a videotaped 12 and cautioned interview that was conducted with Ms. 13 Reynolds, which you described to her as a quote, 14 "accusatory style of interview," close quote. 15 And do you recall that interview? 16 MR. BRIAN BEGBIE: I do. 17 MR. MARK SANDLER: And -- and by an 18 accusatory style of interview, I take it you meant that 19 in part she was confronted with the suggestion that 20 Sharon had died as a result of a confrontation that -- 21 that Sharon had had with -- with her mother. 22 In other words, it was -- it was put to 23 her as an allegation, in effect? 24 MR. BRIAN BEGBIE: Yes. 25 MR. MARK SANDLER: All right. And one
1061 (1) of the things that the Commissioner has to wrestle 2 with, and I -- I'm starting with the most difficult 3 issues in some respects, the systemic issues, is -- is 4 how an investigation proceeds in circumstances that can 5 have a devastating impact upon affected family members, 6 because at that point in time, you don't know whether or 7 not the mother is truly engaged in the offense, or -- or 8 is simply a -- a grieving mother? 9 How do you decide whether to deal with it 10 in a confrontational style, or deal with it otherwise? 11 MR. BRIAN BEGBIE: It was a -- that's a 12 very good question. It was a very difficult struggle. 13 You'll see some time lapse from a written version, where 14 she wasn't challenged at all, and it was just: Tell us 15 the -- the situation, or your version. 16 And it was because there was two (2) other 17 pieces of information that were highly contradictory, and 18 high -- very, very important and there was a conflict in 19 that information. 20 So we discussed: Do we leave it for now? 21 Do we -- do we have to address that right now? And right 22 or wrong, we felt that it -- it had to be addressed. It 23 was that significant, so that's why we did what we did. 24 Now going in, we were bound by certain 25 laws and -- and our job is to get admissible -- or
1071 evidence in admissible fashion. And I'm already going 2 into an interview now, I've taken a -- a statement from 3 her, and I'm going in with some questions that if -- if 4 on the face of the information I've got is correct, then 5 she's not being completely truthful. 6 So I have to weight that and that's why 7 the interview was -- I've got to put some tough questions 8 to you, and you -- as a result of, you know the -- your 9 answers, you may be charged with -- to give her her 10 rights up-front, to know that there is some jeopardy 11 attached to this. 12 And that's why it was handled the way it 13 was. 14 MR. MARK SANDLER: Okay. Now we've heard 15 that the autopsy took place on June the 13th and June the 16 15th. Dr. Smith in his testimony said that the autopsy 17 proper, in other words, the most significant part of the 18 autopsy, actually took place on the second day, June the 19 15th. 20 And we've also heard that Constable 21 Goodfellow was present for the autopsy on behalf of the 22 police. 23 And does that accord with your 24 understanding as well? 25 MR. BRIAN BEGBIE: Correct.
1081 MR. MARK SANDLER: And what role was 2 Constable Goodfellow playing in the investigation at that 3 point in time? 4 MR. BRIAN BEGBIE: He was a -- tasked or 5 assisting Chris Barrett who was in charge of our forensic 6 identification unit in charge of the case. He was the 7 senior guy. 8 MR. MARK SANDLER: All right. And if 9 you'd go to page 19 of the overview report, paragraph 57, 10 we actually see that according to the notes of Constable 11 Goodfellow, on June the 15th, at the conclusion of the 12 autopsy, Dr. Smith advised him that the cause of death 13 was exsanguination, secondary to multiple stab wounds. 14 And we see that Detective Sergeant Bird in the following 15 paragraph records similar information retained from PC 16 Goodfellow, who in turn had obtained it apparently from 17 the forensic pathologist. 18 What I want to ask you is: As one (1) of 19 the part -- as one (1) of the members of the 20 investigative team, were you aware, fairly shortly after 21 the autopsy, that Dr. Smith was expressing that view, 22 that this was a case of multiple stab wounds causing 23 death? 24 MR. BRIAN BEGBIE: Well, those first few 25 days we didn't get a lot of sleep, so I probably would
1091 have known within minutes of Detective Sergeant Bird as 2 the other investigators as well. 3 MR. MARK SANDLER: And -- and just to be 4 clear, as part of the management of a homicide case, the 5 Kling -- Kingston Police Service would -- would 6 conference, as between the officers, on the activities 7 that would take place on an ongoing basis. 8 Is that fair? 9 MR. BRIAN BEGBIE: That's fair. 10 MR. MARK SANDLER: How frequently would 11 you do that? 12 MR. BRIAN BEGBIE: In the first -- in the 13 first few weeks, certainly we met regularly. Sometimes 14 it may be one (1) or two (2) times a day. 15 MR. MARK SANDLER: All right. So that 16 you'd be alive to the -- to the developments in each day 17 in -- in the homicide investigation as one (1) of the 18 officers? 19 MR. BRIAN BEGBIE: Yes. 20 MR. MARK SANDLER: Now if I can move from 21 -- from June the 15th to paragraph 71 of the overview 22 report. And you'll see that is at page 32. 23 24 (BRIEF PAUSE) 25
1101 MR. MARK SANDLER: And again, we're -- 2 we're alive based on other testimony that's been given to 3 -- to a number of the facts in the Sharon Case, so I'm -- 4 if I proceed at too speedy a pace, you -- you slow me 5 down, and -- and I'll comply. 6 But what we see from these paragraphs, 71 7 and following, is that fairly early in the investigation 8 the Kingston Police received information concerning a pit 9 bull named Hat Trick. And there's a reference in 10 paragraph 71 to information received from someone who 11 we're describing as Gary, that -- that he picked Hat 12 Trick up from the Reynold's residence. He noticed that 13 Hat Trick had a red substance on his paws and chest. He 14 stated that Ms. Reynolds told him it was tomato juice or 15 tomato soup. 16 And -- and this was all reflected in his 17 statement given to police on June the 7th of -- June 17th 18 of 1997. 19 And again, does that accord with your 20 recollection? 21 MR. BRIAN BEGBIE: That's correct, the 22 evening of the 17th. 23 MR. MARK SANDLER: The evening of the 24 17th. And reflected at paragraph 72 is that Ms. 25 Reynold's stated that -- that she had put Hat Trick in
1111 the basement, had told Gary that the red substance much 2 be tomato juice, soup or something from the garbage in 3 the basement. 4 And we know that that came out of a 5 further videotape statement that was taken from Ms. 6 Reynolds on June the 20th of 1997, is that right? 7 MR. BRIAN BEGBIE: That's right. 8 MR. MARK SANDLER: And finally we see 9 that in the earliest of the three (3) statement that I'm 10 going to take you to, on June the 16th, Mr. Strowbridge 11 stated that he believed that Hat Trick had been in the 12 basement on June 12th of 1997, and he described certain 13 odd behaviour on the part of Hat Trick in the days 14 following Sharon's death, am I right? 15 MR. BRIAN BEGBIE: Yes, and that's when 16 we had to find out who Hat Trick was. 17 MR. MARK SANDLER: Okay. So am -- am I 18 right at looking at all of this that -- that the first 19 information that the police had that alerted you that 20 there was an issue involving a pit bull named Hat Trick, 21 would have come from Mr. Strowbridge's June 16th, 1997 22 statement? 23 MR. BRIAN BEGBIE: Correct. 24 MR. MARK SANDLER: Do I have that right? 25 MR. BRIAN BEGBIE: Correct.
1121 MR. MARK SANDLER: Okay. Now, at 2 paragraph 74 there's a reflection of the fact that on 3 June 17th, so this is the day after Mr. Strowbridge has 4 provided his statement, Constable Goodfellow telephoned 5 Dr. Smith regarding the markings on Sharon's back and he 6 records -- Constable Goodfellow records a conversation: 7 "We have concerns about upper back 8 marks. 9 A: Not domestic or wild animal in any 10 way." 11 And then you see in the following page, if 12 you with me to page 34, that Constable Goodfellow, on the 13 same day, reports the conversation to Detective Sergeant 14 Bird, who notes that Constable Goodfellow spoke to Dr. 15 Smith who said: 16 "The injuries to Sharon were definitely 17 not caused by domestic or wild animal." 18 And then also notes, 19 "She had no broken bones." 20 So stopping there for a moment. First of 21 all, do you know, as one (1) of the investigators on the 22 case, how it came to be that Constable Goodfellow was 23 posing questions about animal to Dr. Smith on the 17th? 24 MR. BRIAN BEGBIE: At the request of 25 Detective Sergeant Bird.
1131 MR. MARK SANDLER: All right. 2 MR. BRIAN BEGBIE: That was as a result 3 of one (1) of the case meetings I'm referring to. It 4 would have happened -- I happened the 17th, in the 5 morning. And of course, we learned about the dog the day 6 before. 7 So we were asking about the dog, and it 8 was one (1) of the actual members of the investigative 9 team, Bill Kennedy, whose side hobby has a lot of 10 involvement with training dogs and whatever and thought 11 that the one (1) mark -- he was concerned. 12 He goes, I'm not so sure, like -- and that 13 started some roundtable discussions and conversation and 14 that's when Andy Bird decided, Well, we'll ask, like -- 15 and the Regional Coroner, Dr. Bechard, was there and -- 16 and he -- at the time he basically scoffed it off and 17 said, Dog -- like I remember it when we were in the 18 training room at the station, and he -- he said, Dog, a 19 dog didn't do this, all these wounds, there's -- these 20 are stab wounds -- or these are, yeah, stab wounds. 21 MR. MARK SANDLER: Okay. So what I take 22 from that is several things. And you'll be delighted to 23 know that -- that I'm not going to engage in much of the 24 discussion of the pathology itself with you, because 25 we've heard a lot about the pathology and the various
1141 opinions expressed on it. 2 But -- but just to get the -- the 3 chronology straight, as of June 17th, 1997, first of all, 4 the police had already begun to at -- at least address 5 their minds to an issue that might be raised by the 6 presence of this pit bull. 7 Am I right so far? 8 MR. BRIAN BEGBIE: Yeah, we were very 9 concerned -- our concern was much heightened on the 10 evening of the 17th, when the information came about 11 tomato soup or tomato sauce on the dog. That was very 12 alarming. 13 MR. MARK SANDLER: Okay. Second of all, 14 can I take from the note of Constable Goodfellow and your 15 discussion with Dr. Bechard that the views that you were 16 getting, at least from the representative of the coroner, 17 as well as from Dr. Smith, as of June 17th was that a dog 18 had not caused the injuries in this case. 19 MR. BRIAN BEGBIE: Absolutely. 20 MR. MARK SANDLER: All right. And -- and 21 at that point in time had there been any discussion about 22 bringing Dr. Wood into this case or the need to consult 23 Dr. Wood before -- before an opinion was reached, as to 24 whether this was a dog bite case? 25 MR. BRIAN BEGBIE: None, that I'm aware
1151 of. 2 MR. MARK SANDLER: Okay. Now, I want to 3 move from -- from there to paragraph 77, which is at page 4 34. And we see from paragraph 77 and 78 that, again, it 5 seems that more information is coming in about -- about 6 Hat Trick and that the police are engaging in further 7 investigation concerning Hat Trick. 8 So we see, for example, at paragraph 78 9 that you received some information that -- that a fellow 10 had observed, within one (1) or two (2) days of Sharon's 11 death, Hat Trick's feces had blonde hair in it. 12 So tell me how that affected your state of 13 mind and what you saw should be done investigatively to 14 address the dog issue, so to speak. 15 MR. BRIAN BEGBIE: Well, I'll -- and I'll 16 just clarify on the paragraph 77, on June 18th we took 17 that dog to the -- the vet. We -- actually, the second 18 that got told to us on the 17th, the evening we went and 19 found that dog, kept it overnight and as soon as we could 20 get it to the vet in the morning; that's when we got the 21 collar, and shaved the dog down, and took whatever 22 samples, hoping that there was some kind of trace 23 evidence left, if it was in fact blood. 24 So then with this -- and -- and obviously 25 we took a videotaped statement from Gary. And then the
1161 next day with this other revelation from -- it's actually 2 Gary's brother, Ken -- again took another statement, and 3 were alarmed, obviously. 4 MR. MARK SANDLER: Okay. And how did you 5 translate the alarm? And -- and by -- by that I mean, 6 what did you see had to be done by the police to address 7 the dog issue? 8 MR. BRIAN BEGBIE: We notified -- sorry, 9 we notified the -- the Regional Coroner, again; this -- 10 we got this additional information. They were pretty 11 unequivocal; these weren't -- weren't dog wounds. 12 MR. MARK SANDLER: Okay. Do you know 13 whether or not anybody at this point in time picked up 14 the phone, and called Dr. Smith, and advised Dr. Smith 15 that we now had some additional information about a pit 16 bull, about what had been observed surrounding the pit 17 bull? 18 Did that happen? Or -- or did you feel 19 that that had been addressed through the earlier 20 conversation that Constable Goodfellow had had with him? 21 MR. BRIAN BEGBIE: Well certainly the -- 22 the early one (1) that I do know of, and my understanding 23 is that was done through the Regional Coroner, Dr. 24 Bechard, who's -- who had been liaising with the 25 Coroner's Office.
1171 MR. MARK SANDLER: All right. So you -- 2 you certainly had an understanding at least that Dr. 3 Bechard would communicate the -- this information about 4 the pit bull to Dr. Smith? 5 MR. BRIAN BEGBIE: Correct. 6 MR. MARK SANDLER: All right. Do you 7 know whether any officer participated in -- in the 8 communication of that information, or can you say? 9 MR. BRIAN BEGBIE: I -- I can't honestly 10 say. 11 MR. MARK SANDLER: All right. Now, we 12 know that Ms. Reynolds was arrested on June the 26th of 13 1997, and -- and I take it -- and again, it -- it's not 14 for the Commissioner ultimately to decide what the merits 15 of the -- of the case, or lack of merits was, but just to 16 be clear, I take it, it was the position of the Kingston 17 Police Service that it had accumulated circumstantial 18 evidence, apart from the pathology, that supported the 19 laying of that charge. 20 Is that right? 21 MR. BRIAN BEGBIE: Yes, it is. 22 MR. MARK SANDLER: And in -- and in 23 brief, what was the nature of the circumstantial evidence 24 that -- that was being relied upon by the Kingston Police 25 Service?
1181 MR. BRIAN BEGBIE: At -- at that point in 2 time, we -- it was statements from -- from a number of 3 people in the area. 4 We had two (2) -- two (2) eyewitnesses 5 that put the victim with her mom at a -- a time frame -- 6 a very, very narrow time frame. And it was just -- it 7 was really -- it was an ongoing -- the interviews that we 8 had, some of the evidence that was coming out from some 9 of the interviews, and her past behaviour. And -- and it 10 was the combination of the CAS file. We'd -- we executed 11 a search warrant. 12 It was a -- kind of a -- a total package 13 thing. 14 MR. MARK SANDLER: Okay. 15 MR. BRIAN BEGBIE: We'd went -- we'd 16 consulted the Crown attorney on the 20th, and again on 17 the -- I believe the 25th, or just -- just the day maybe 18 prior to, and it was consensus that we were in shape to 19 go and make an arrest. 20 MR. MARK SANDLER: Okay. Now, if -- if 21 you'd look with me at page 47 of the overview report, 22 paragraph 109, and here we're moving forward in time, 23 somewhat, to December the 10th of 1997. So -- so we're 24 now about a half a year after the laying of the charges. 25 And this is a memorandum from Jennifer
1191 Ferguson, who is the Assistant Crown attorney to Mr. 2 McKenna, who I understand at that point in time was the 3 lead Crown counsel on the file. 4 Do I have that right? 5 MR. BRIAN BEGBIE: That's correct. 6 MR. MARK SANDLER: And she is summarizing 7 a conversation that she's had with Mr. Rumble, who was 8 then the defence counsel on the file. And -- and we see 9 under cause of death at the bottom of page 47 that: 10 "Rumble told me that he's going to 11 retain his own pathologist to look at 12 the photographs. He thinks the 13 injuries are bite marks. He may try to 14 have Sharon's body exhumed. Will he 15 have to exhume the dog too to compare 16 the dental impressions to the injuries? 17 [is -- is asked} Sergeant Bird feels 18 that Dr. Smith can give the evidence 19 that the injuries were not caused by 20 biting. 21 Dr. Bechard called this morning to tell 22 us he had spoken to Rumble yesterday. 23 He told me about Rumble's theory re. 24 the dog, and advised Dr. Woods (sic), a 25 forensic dentist, could nip that theory
1201 in the bud, if we wanted a consultation 2 with him. He would examine the photos, 3 indicate which injuries were likely to 4 be bite marks and computerize the 5 images. I told him I would speak to 6 you." 7 And we actually see on the -- on the 8 following page that -- excuse me for a moment, at 9 paragraph 113, that on January the 27th of 1998, which 10 would be a little bit more than a month later, Ms. 11 Ferguson sent a fax to Mr. McKenna stating in part: 12 "Dr. Wood, no charge to look at photos. 13 Then Dr. Wood, to contact you re: 14 further involvement." 15 Can you assist the Commissioner as to how 16 it was that Dr. Wood became engaged to render an opinion 17 in this case? 18 MR. BRIAN BEGBIE: There's a little bit 19 missing there, and it -- it goes from the 10th of 20 December memo on the -- by the time she got a hold of Mr. 21 McKenna, and I don't know the exact date, but there's a 22 notation on that actual memo from Mr. McKenna that says: 23 "I think we should do this." 24 MR. MARK SANDLER: Okay. 25 MR. BRIAN BEGBIE: And then there's a
1211 note beside that that she contacts me on the 16th of 2 January and to get a hold of Sergeant Bird, discuss it 3 with him and we're going to go ahead with this. 4 And I believe it's a day later she 5 contacts and leaves a message for Sergeant Bird to -- and 6 we used Chris Barrett through Ident -- and we've got a 7 fee structure, and that's what that 27th of January, '98 8 memo is in reference to, what the fee was going to be and 9 -- and what have you -- so it was -- the whole Dr. Wood 10 thing started with the Regional Coroner, Dr. Bechard, to 11 Jennifer Ferguson, who ran it by her senior Crown, and 12 then it -- it came via that way to us. 13 MR. MARK SANDLER: All right. Do you 14 know whether Dr. Smith had any involvement in -- in 15 bringing Dr. Wood into the file? 16 MR. BRIAN GOVER: None, to my knowledge. 17 All the -- even the correspondence that followed up was 18 all directed to -- to Chris Barrett; us, the reports and 19 what have you are -- that the material that he needed, 20 anything to -- to further his examinations was all 21 through Chris. 22 MR. MARK SANDLER: Okay. Now -- and -- 23 and we actually see that and heard it from Dr. Wood 24 yesterday, that his dealings at first instance were with 25 Constable Barrett that provi -- who provided him with --
1221 with the materials upon which he expressed his opinion. 2 And he said that he -- he expressed -- he 3 provided his opinion in writing within one (1) or two (2) 4 weeks of first being consulted about it, even though he 5 gave a verbal answer, basically, no dog, first, and does 6 that accord with the time frames that -- that you 7 understood in -- in the investigation, or can you say? 8 MR. BRIAN BEGBIE: I -- I think that's -- 9 that's pretty accurate, yes. 10 MR. MARK SANDLER: Okay. Now, several 11 questions arising out of that; the first is, one (1) of 12 the things that Dr. Wood told the Commissioner yesterday 13 was that -- is that he -- he expressed the view that this 14 wa -- this was not a dog case, but he also didn't see it 15 as a -- as a scissors case. 16 Did that message make its way either to 17 you, as one (1) of the investigators, or to your 18 knowledge, to Dr. Smith? 19 MR. BRIAN BEGBIE: I can't -- I can't 20 speak to Dr. Smith. I'm not -- I'm not certain of that. 21 I don't know what, if any, communication they had, and I 22 wouldn't be able to answer that. 23 That information being relayed back to us, 24 I -- I'm not aware of it. 25 MR. MARK SANDLER: Okay. All right.
1231 Given some of things that were later said by Dr. Smith 2 about the -- either possibility or likelihood of scissors 3 having been involved in the case, would it have been of 4 assistance or importance or of interest to you to learn 5 what Dr. Wood had to say about the possible use of 6 scissors? 7 MR. BRIAN BEGBIE: Well, it would have 8 been in that we would have had two (2) differing opinions 9 at a very early stage. 10 MR. MARK SANDLER: Okay. Now, moving 11 ahead for a moment, the other systemic issue that -- 12 that's raised is, was there any consideration given about 13 whether Dr. Wood's opinion should actually be physically 14 provided to Dr. Smith prior to Dr. Smith's completion of 15 his report of post-mortem examination? 16 MR. BRIAN BEGBIE: Again, I -- I can't 17 speak to that. I don't know whether it was -- it's 18 nothing that I recall within -- within our investigation 19 or whether it was done through the Coroner's Office; I'm 20 not certain. 21 MR. MARK SANDLER: Okay. Now, moving 22 ahead in time, if I may, were there any investigative 23 issues in the course of your work in accessing Dr. Smith 24 or getting responses from him? 25 MR. BRIAN BEGBIE: Yes. It -- it got to
1241 the point, it was really about the production of his 2 report. It took a long time to get that first post- 3 mortem report. And I believe it was even right down to 4 the, kind of the eleventh hour and there was an affidavit 5 sworn and it was going to be, like, basically a 6 production order to get him into Court with that and 7 explain why in fact that report's not done, and it -- it 8 appeared at that magical hour. 9 MR. MARK SANDLER: All right. And let me 10 just ask you, based upon your experience in Kingston, was 11 that something that's typical in your interrelationship 12 with the forensic pathologists that are local or was that 13 a particular problem in this case? Or can you say? 14 MR. BRIAN BEGBIE: Oh, no. We've -- it 15 was problematic in that case. It wasn't a problem I've 16 seen within our own local jurisdiction. 17 MR. MARK SANDLER: All right. So 18 generally your experience in recognizing it's largely in 19 adult cases has been that you've been getting timely 20 reports? 21 MR. BRIAN BEGBIE: Yes. We're -- we're 22 content with them, certainly, yeah. 23 MR. MARK SANDLER: Okay. Now, just if 24 you'd go with me to page 58 of the overview report, we 25 actually see that -- that set out in the overview report
1251 in a number of paragraphs that follow, are the facts 2 surrounding the -- the delay in obtaining Dr. Smith's 3 report. And -- and based upon your general answer I'm 4 not going to take you this, other than in a very prompt 5 way and for the purpose of just asking you one (1) or two 6 (2) questions. 7 We actually see at paragraph 133, at page 8 58, that -- that the Crown sends a letter to Mr. Rumble 9 in November of 1997 and reflects that the police are 10 making their best efforts to speed up the production of 11 the pathologist post-mortem report. It's simply not yet 12 available. 13 On December the 2nd, Mr. Rumble files a 14 notice of application to bring a motion for disclosure, 15 including a request for the final autopsy report. 16 On the following page, page 59, we see on 17 December the 1st, Mr. Rumble writes to Dr. Smith 18 enclosing that application and informing him he's going 19 to be served with a subpoena. 20 At paragraph 137, we see Ms. Ferguson 21 indicating that Dr. Bechard advises he's been in touch 22 with Dr. Smith several times regarding the report. And 23 she notes that Dr. Bechard spoke to Mr. Rumble, told him 24 he's been after Dr. Smith one (1) time a week: 25 "No stat time to produce, some of the
1261 lab work not completed; good reasons 2 for not ready." 3 Then you see at paragraph 138, a counsel 4 resolution meeting is held. The defence isn't prepared 5 to set a preliminary hearing date until the autopsy and 6 forensic reports are completed. 7 Then the press reports on the item, 8 because the judge adjourns the defence motion to give 9 both sides time to itemize and put in writing what's left 10 to be disclosed, and there's reference made to the 11 failure to receive the report of the autopsy. 12 And hen you see at paragraph 141, on 13 December 30th of 1997, Ms. Ferguson writes to Mr. Rumble 14 and anticipates that at least a preliminary report will 15 be ready in the next two (2) weeks. 16 Then we see Mr. Rumble writes to Dr. Smith 17 copying a variety of individuals at the Chief Coroner's 18 Office speaking to this issue. 19 And then we see at page 61, a handwritten 20 note located in the Crown's materials: 21 "No news from CFS and pathologist. No 22 further reports." 23 Mr. McKenna writes on January the 27th to 24 Dr. Smith, requesting his report of post-mortem 25 examination, indicating that the Crown had been delaying
1271 defence counsel for some time. Indeed he threatened to 2 subpoena you (sic) at an earlier date to get the report. 3 "It's now become a bit of an 4 embarrassment for my office. Should 5 the report not be complete at this time 6 any preliminary report which you could 7 provide us would be most helpful." 8 Then you see at paragraph 146, a subpoena 9 is issued to Dr. Smith ordering him to attend Court and 10 bring the report with him. 11 And then you skip to page 63, where -- 12 this is a reference to notes within the Crown's office: 13 "Called Dr. Smith, he had not examined 14 the scalp and recently received it back 15 from Indiana. The rest has been done 16 for ages. He will have his report 17 faxed to us Wednesday afternoon." 18 And then finally at paragraph 153, Ms. 19 Ferguson prepares a memorandum indicating she was 20 expecting a fax from Dr. Smith regarding the case. He 21 faxes his report of post-mortem examination indicating 22 that the delay was because he could not finalize the 23 report until he received the excised scalp back from Dr. 24 Haskell. 25 Now what I want to ask you -- and
1281 apologize that I read you so much, but I thought I should 2 give you the benefit of -- of the chronology that relates 3 to this issue as we understand it. 4 Were you ever advised that -- that the 5 delay in obtaining the report from Dr. Smith related in 6 any way to having to see, or read, or incorporate, Dr. 7 Wood's report before his report was finalized? 8 MR. BRIAN BEGBIE: No. The only one (1) 9 that -- that was waiting for the results was from 10 Indiana, which was Dr. Haskell. He was a forensic 11 entomologist. And it was a check of the scalp for head 12 lice. 13 MR. MARK SANDLER: All right. And if we 14 can move from there to Dr. Smith's evidence at the 15 preliminary inquiry, and the -- the Commissioner has all 16 ready heard what Dr. Smith had to say at the preliminary 17 inquiry, and so I don't intend to go through it here. 18 Did you attend the preliminary inquiry? 19 MR. BRIAN BEGBIE: I did, but there was 20 an exclusion of witness, so I -- I did not see his -- or 21 hear his testimony. 22 MR. MARK SANDLER: All right. Was there 23 discussion within the police investigative team at the 24 conclusion of the preliminary inquiry, or after his 25 evidence, about how he had done; how he had presented;
1291 how he had done; and -- and what the police took from -- 2 from the testimony that he'd given? 3 MR. BRIAN BEGBIE: There was discussion. 4 I -- I'd obviously remember -- I remember talking to 5 Detective Sergeant Bird. You know, how did it go, and 6 comments like he's a -- you know, an extremely strong, 7 dominating witness; like he's a -- a very -- come across 8 very, very knowledgeable and -- and very, very strong, 9 and -- and vocal on the stand. 10 MR. MARK SANDLER: All right. And we 11 know, moving ahead, that -- that, at some point, a 12 decision is made that -- that Sharon's body is going to 13 be exhumed and a second autopsy performed. 14 And -- and I want to discuss with you what 15 the police role was that, and what your understanding was 16 in connection with why that was taking place. 17 So first of all, what was it that was 18 happening in the investigation, as you understood it, 19 that prompted discussion about the possibility of 20 exhuming her body? 21 MR. BRIAN BEGBIE: Conflicting medical 22 opinion on the nature of the injuries or the cause of the 23 injuries, to -- to Sharon. 24 The defence side had experts that felt 25 that the conclusions reached by Dr. Smith were
1301 inaccurate. 2 MR. MARK SANDLER: All right. And 3 there's some evidence of a meeting that took place on 4 March the 29th of 1999, at the University Club in 5 Kingston. Were you present at that meeting? 6 MR. BRIAN BEGBIE: I was not. 7 MR. MARK SANDLER: All right. Did you 8 learn afterwards from -- first of all, were there any 9 members of the Kingston Police Service, as you understood 10 it, that -- that were present at that meeting? 11 MR. BRIAN BEGBIE: Sergeant Bird. 12 MR. MARK SANDLER: All right. And did 13 you acquire an understanding of what had happened at that 14 meeting, and where the investigation was going as a 15 result? 16 MR. BRIAN BEGBIE: Well, the -- one (1) 17 of the -- one (1) of the key issues that was spoke about 18 was the fact that there was a pin -- a polyvinyl ciloxan 19 cast of the skull that Dr. Smith had made. 20 And it was a cast that he'd referred to 21 and had at the preliminary hearing; was allowed to take 22 it from the preliminary hearing for further tests, or -- 23 or examination, and that was now gone. It couldn't be 24 located. 25 Now we have these differing defence expert
1311 witness opinion, and some of my understanding is some of 2 the description of the wounds by Dr. Smith were 3 problematic for Dr. Chiasson, and they didn't have the 4 cast to go and actually look at some of the injuries, 5 like the deep thoracic -- there's one (1) in the thoracic 6 inlet; that they were gone, so they didn't have that 7 option. 8 So with the differing opinions, and the 9 lost -- the lost cast of the -- of the injuries of the 10 skull, a decision was made that there would be an 11 exhumation. 12 MR. MARK SANDLER: All right. And if 13 you'd move ahead with me to page 98 of the overview 14 report; paragraph 215. 15 We actually see that on April the 19th of 16 1999, Detective Sergeant Bird swore an affidavit in 17 support of the application to disinter the remains of 18 Sharon. 19 And again, was there discussion within the 20 investigative team as to the basis upon which the 21 affidavit would be sworn in support of the application? 22 MR. BRIAN BEGBIE: Just the information 23 that was provided at that meeting through the discussions 24 with the medical people, and -- and the missing cast of 25 the skull.
1321 MR. MARK SANDLER: All right. And -- and 2 Detective Sergeant Bird reflects in the affidavit, at 3 page 98 of the overview report, that -- at B): 4 "The doctors concluded that the wound 5 description as provided by Dr. Smith's 6 report was somewhat unclear to them. 7 They discussed the matter with Dr. 8 Smith. They learned that the cast of 9 the wound prepared by Dr. Smith were no 10 longer available. The absence of the 11 cast precluded Dr. Wood from engaging 12 in further detailed examination." 13 Then there's a reflection of the meeting 14 at the University Club. Dr. Chiasson stated that because 15 of his concerns after reviewing the case, he felt it was 16 necessary to have a second post-mortem examination to 17 view and describe in more detail, the wounds to her body, 18 and in particular, to the skull area. 19 And Detective Sergeant Bird says that: 20 "It was a unanimous conclusion that the 21 disinterment and second post-mortem 22 examination would be necessary to clear 23 up the questions about the wound depths 24 and description and to help identify 25 more clearly the cause of those
1331 wounds." 2 The reason I ask you all these things is 3 that the affidavit contains, as the grounds for the 4 disinterment and second autopsy, various features, but 5 including the loss of this cast, right? 6 MR. BRIAN BEGBIE: Correct. 7 MR. MARK SANDLER: And -- and was that 8 the understanding of the police, that -- that the loss of 9 the cast figured in -- in some way to a greater or lesser 10 extent in the decision to exhume? 11 MR. BRIAN BEGBIE: It was clearly, and I 12 wasn't at the meeting, but it was clearly a -- a topic of 13 their conversation because Sergeant Bird actually filed 14 an independent statement on that meeting, as did Chris 15 Barrett. 16 And that's included in their statement, 17 not just in there as well. 18 MR. MARK SANDLER: And -- and the reason 19 I ask you about it is because I -- I know the police have 20 -- and the police -- and I don't mean to talk to -- about 21 you collectively -- but I know that the investigative 22 team has some concerns about -- about ultimately the 23 agreed -- or the facts that were read in when the charges 24 were withdrawn, and that's one (1) feature of it. 25 So we'll kind of store that there for a
1341 moment, and we'll revisit it when we look at the charges 2 being withdrawn a little bit later in the piece, okay? 3 MR. BRIAN BEGBIE: Okay, thanks. 4 MR. MARK SANDLER: Now if we can move 5 from there -- you obtained, in new reports, as I 6 understand it, from Dr. Wood and Dr. Chiasson and 7 ultimately Dr. Smith after the second autopsy had taken 8 place, am I right? 9 MR. BRIAN BEGBIE: You're right, yes. 10 MR. MARK SANDLER: And we've heard the 11 tenor of those reports, and in essence, at the risk of 12 over-simplifying, we've heard that Dr. Wood and Dr. 13 Chiasson expressed the view that there were a number of 14 injuries on the body that could be or were attributable 15 to a dog attack. 16 But Dr. Chiasson went on to say that he 17 could not exclude the possibility that a weapon had also 18 been involved in the attack, and Dr. Wood said that there 19 were certain injuries that could not be explained, in his 20 opinion, by a dog attack. 21 Have I fairly summarized where they were 22 at as you understood it? 23 MR. BRIAN BEGBIE: You have, yes. 24 MR. MARK SANDLER: Okay. And where did 25 you think that left you as an investigative team, as a
1351 result of -- what I think it's fair to say, is a certain 2 about-face as to -- as to the role that dog bites or a 3 dog attack had played in -- in the -- in this child's 4 injuries? 5 MR. BRIAN BEGBIE: Well it -- it forces 6 you to analyse the case and look at okay, what you may 7 have thought happened before based on the -- based on the 8 reports that you had in the first interim -- or first -- 9 first time -- first post-mortem and the testimony of Dr. 10 Smith. 11 Now -- now we do know that the dog -- the 12 experts are saying the dog was there and inflicted some 13 of these injuries. So now you have to view all your 14 evidence again and -- and see how that factors into 15 things. 16 So there's a reassessment done, certainly. 17 MR. MARK SANDLER: All right. And then 18 if you go to page 105, and this is the last paragraph 19 I'll ask you about before our break, and we'll continue 20 on afterwards. 21 We see that -- that according to a 22 document entitled "Reynold's Homicide", which is a 23 chronology of events prepared by the Kingston Police, and 24 I'll just stop there to ask you, do you know who prepared 25 that document?
1361 MR. BRIAN BEGBIE: It's -- it's not 2 coming up on my screen, sir. 3 MR. MARK SANDLER: All right. If you 4 look at Tab 11 of your -- 5 MR. BRIAN BEGBIE: Okay. 6 MR. MARK SANDLER: -- materials, which is 7 -- hold your hand into the overview report, because we'll 8 come back to it, but the document is at PFP011703. 9 MR. BRIAN BEGBIE: Yes, sir. 10 MR. MARK SANDLER: Do you know who 11 prepared this document? 12 MR. BRIAN BEGBIE: I do. 13 MR. MARK SANDLER: And who did? 14 MR. BRIAN BEGBIE: Me. 15 MR. MARK SANDLER: All right. That'll 16 make my questioning a lot -- 17 MR. BRIAN BEGBIE: It makes it easy. 18 MR. MARK SANDLER: -- that'll make my 19 questioning after lunch a lot easier. So just going 20 back, as I say, to complete this aspect, at page 105 of 21 the overview report, that chronology reflects that: 22 "The Crown's office and the police held 23 a strategy meeting in November of 1999 24 at the Holiday Inn." 25 And since you've authored the document, I
1371 take it you'd agree that that indeed took place? 2 MR. BRIAN BEGBIE: That indeed took 3 place. 4 MR. MARK SANDLER: All right. And could 5 you describe for the Commissioner, why did the meeting 6 take place, who attended the meeting, and what was the 7 result of the meeting? 8 MR. BRIAN BEGBIE: I can. Myself, 9 Inspector Pringle, who was in charge of the CIV Unit, the 10 entire office, Mac Pelt -- Bob Pelltier, Mac Lindsey, who 11 are two (2) Crown attorneys from other jurisdictions that 12 didn't know this case, Crown McKenna, and I believe Mr. 13 Stewart, who was director of Crown operations, and 14 Jennifer Ferguson, I believe. 15 MR. MARK SANDLER: All right. And what 16 was the purpose of the meeting? 17 MR. BRIAN BEGBIE: The purpose was now 18 with the changed pathology evidence, we would sit down 19 and we'd -- it's that -- it's the reassessment, I guess, 20 before some people that -- fresh eyes on it with this 21 kind of a reassessment of the case. 22 MR. MARK SANDLER: All right. And then 23 we --we actually see as a quotation from -- from your own 24 chronology, that -- that the decision was made to 25 continue, quote:
1381 "Full steam ahead. Still all sorts of 2 evidence." Close quote. 3 And did that reflect the consensus of both 4 the Crowns and the police that, notwithstanding the -- 5 the significant difficulties that had arisen in the 6 pathology, the -- the entire case was such that -- that 7 it ought to continue to proceed? 8 MR. BRIAN BEGBIE: That was a unanimous 9 agreement. 10 MR. MARK SANDLER: Okay. That would be a 11 convenient time, Commissioner, and -- 12 COMMISSIONER STEPHEN GOUDGE: Okay. Why 13 don't we try to come back -- we'll shave a few minutes 14 off -- come back at two o'clock, our usual starting time 15 after lunch and pick up from there. 16 17 --- Upon recessing at 12:51 p.m. 18 --- Upon resuming at 2:04 p.m. 19 20 THE REGISTRAR: All Rise. Please be 21 seated. 22 COMMISSIONER STEPHEN GOUDGE: Mr. 23 Sandler...? 24 25 CONTINUED BY MR. MARK SANDLER:
1391 MR. MARK SANDLER: Thank you, 2 Commissioner. 3 Inspector Begbie, if we may move ahead 4 from the meeting that you described immediately before 5 lunch, to the next chronological event that I'm going to 6 take you to, and it's at Tab 27 of your materials. And 7 it's PFP087924. 8 And this is a memorandum from Detective 9 Sergeant Bird to Crown attorney Ed Bradley, and to 10 assistant Crown Jennifer Ferguson. 11 And Detective Sergeant Bird writes this 12 short note out of profound concern for the Reynolds 13 matter. He reflects the toll that the case has taken on 14 the officers: 15 "I'm sure to some degree it's affected 16 your office as well. However, of late 17 I've detected a certain air of 18 animosity between the Crown and the 19 police. I've also noted a tinge of 20 hostility between the involved Crowns 21 and sadly I've noted some bickering 22 amongst the police officers themselves. 23 If we're to be successful we have to 24 work as a team. We have to respect 25 each others input and views. Make no
1401 mistake, the right person, Louise, is 2 on trial. If we want justice to be 3 served and her found guilty, it's an 4 absolute must that we get back on track 5 and work towards this common goal. It 6 would seem that the pre-trial motions 7 to the date have not really gone as 8 planned. The police officers that have 9 testified all share a sense of 10 frustration that they've been left 11 hanging in the wind without Crown 12 support. A particular concern to the 13 police, and I'm sure the Crown, is the 14 conduct of Judge Lally. Very informed 15 sources indicate his actions at the 16 pre-trial are not isolated incidents. 17 It's the sources, that if the right 18 people were informed of his mental 19 instability, he would not be on the 20 bench. I put this to you as a grave 21 concern and something for the Crown's 22 office to address. The potential for a 23 mistrial at every bend in the road with 24 this man is a very real possibility." 25 And then there's some discussion about:
1411 "The plus side, if the trial doesn't go 2 ahead, fate might dictate that he won't 3 be available, and we'd be blessed with 4 a judge whose faculties are intact." 5 And then just jumping down to the bottom: 6 "Please don't take offense to what I've 7 written. It's from the heart and with 8 a common goal in mind." 9 And were you aware that that memo was 10 being sent by Detective Sergeant Bird to the Crown's in 11 the case? 12 MR. BRIAN BEGBIE: At the time I didn't 13 know the -- the memo was going, no. 14 MR. MARK SANDLER: All right. Did you -- 15 did you later learn or have discussion with Detective 16 Sergeant Bird about the memo? 17 MR. BRIAN BEGBIE: Yes. 18 MR. MARK SANDLER: And I'd just be 19 interested generally in -- in your comments upon it? 20 MR. BRIAN BEGBIE: Certainly. It's not a 21 -- not an easy answer, but I'll -- I'll do my best. We - 22 - when it became apparent that this may surface at the 23 Inquiry, we actually tried to make efforts not to have 24 that happen. 25 It was meant as a confidential memorandum
1421 between the -- Sergeant Bird and the police and the 2 Crown, and we're here today with it having surfaced. 3 I know that Crown Bradley has expressed 4 that he didn't feel any animosity, and there was 5 certainly no problem between his co-counsel. 6 And again, that's his opinion, and I'd 7 have to take exception to that because I had direct 8 conversation with his co-counsel, and I have information 9 to the contrary. And that's unfortunate, but -- so there 10 was some difficulty there, once he come on, I know that 11 to be fact. 12 I also testified at the -- at the pretrial 13 motions, and one (1) of the motions you have to keep in 14 mind was -- and -- and this is our thought process -- was 15 judge-alone trial. 16 And right or wrong, our thought through 17 that the pretrial motion was -- there was -- we thought 18 the judge -- Judge Lally, who's a -- who's a super -- 19 super guy; I -- I think highly of him -- but we felt that 20 he was having a difficult time, at times, following the 21 evidence. 22 And I've got the transcripts. I've 23 reviewed them three (3) or four (4) times and stand by 24 that. So having said that, we're faced with a very 25 complex case, and there's a chance that this could go to
1431 a judge-alone trial. 2 So now we're in a real quandary. What do 3 we do? You're talking about an officer, thirty (30) 4 years on the job, and he's never had to make that 5 decision before. I know he lamented a long time over it, 6 and I know that he -- I'm certain today that he wishes it 7 -- it hadn't gone. 8 But at the time he felt it had to be said. 9 We did it -- he did it privately, and invited 10 conversation with the Crown over it, and I guess we 11 still, if -- if we missed something, and there was 12 another avenue that we could have taken with those 13 concerns -- they weren't frivolous concerns -- they were 14 very real concerns that we had -- who did we go to? 15 And we thought, or Andy, and -- and I'd 16 agree with him, that that was who we thought we had to go 17 to. The Crown. 18 MR. MARK SANDLER: Okay. I guess the 19 question that I'd ask you, I mean first of all, this -- 20 the notion of: 21 "Make no mistake, the right person's on 22 trial. If we want justice to be 23 served, and her found guilty, it's an 24 absolute must that we get back on track 25 and work towards the common goal."
1441 Are you comfortable with the language 2 there? 3 MR. BRIAN BEGBIE: No. No, and -- and I 4 think that -- well, I know that if he thought for a 5 second this was going to ever be made a pub -- public 6 document, so -- certainly wouldn't have been written in 7 this fashion, if written at all. It would have been a 8 verbal conversation. 9 Our job, and Andy certainly knows that 10 he's -- he's far more experienced than even I, that -- 11 you know what, it's not our job to determine guilt or 12 innocence. It's our job to get the evidence in an 13 admissible fashion, and then we liaise -- work with the 14 Crown, and the Crown presents that evidence. 15 And so that's -- you know, it's an 16 unfortunate comment. It's there. That document should 17 have probably been more carefully worded, but it's not, 18 and -- and that's the thought behind it. 19 Greg talked about it, or alluded to it 20 earlier -- about a -- a dispute process, or something to 21 work out when you kind of get to an area, and -- and get 22 everybody focussed again, and this is really where we're 23 at here. 24 We just had a meeting in November with 25 five (5) Crown attorneys that all said, Full steam ahead,
1451 and it's only a couple months later, and it's all kind of 2 -- felt like gloom and doom when Mr. Bradley come in, 3 quite frankly. 4 And -- and then when the conversations 5 come with co-counsel, we're -- it's -- it's an awkward 6 situation. So it was a kind of a rah-rah, let's get back 7 together; lets stay focussed; we all have a job to do. 8 We don't have to be best friends, but, you know, we've 9 got jobs to do here, and that's kind of the underlying 10 theme. 11 I know that's the theme -- why it was 12 prepared, and why it was written, and -- 13 MR. MARK SANDLER: All right. Fair 14 enough. I -- I have to ask you this, because it kind of 15 arises naturally from -- from the memo, and -- and its 16 contents. 17 Should there be any concern that -- that 18 perhaps, kind of viewed retrospectively, that -- that 19 maybe the police were too invested in the theory of the 20 case? 21 That -- that Sharon was guilty and -- 22 sorry, that Ms. Reynolds was guilty, and some of the 23 language that's used in this memo maybe -- maybe reflects 24 a certain lack of objectivity about it? 25 MR. BRIAN BEGBIE: My personal belief is
1461 that isn't the case, and -- and it -- it's shown by how 2 far and what lengths we took with the dog; to follow that 3 dog avenue investigation and other suspects, even 4 subsequent to the withdrawal of the case; work that we 5 continue to do on it. 6 MR. MARK SANDLER: Okay. 7 MR. BRIAN BEGBIE: So I would say that 8 that's not the case, and it's more reflective of a -- 9 it's a frustrating situation. 10 And no investigation -- it's -- no 11 investigation is perfect. You can, I'm sure, find flaws 12 with any investigation. And I don't think this is unique 13 to this investigation. 14 It's just we have this piece of paper, and 15 I wish it wasn't here, but it is, and that's my best 16 explanation for it. 17 MR. MARK SANDLER: You understand why I 18 have to ask you questions about it? 19 MR. BRIAN BEGBIE: Absolutely. 20 Absolutely. 21 MR. MARK SANDLER: All right`. And the 22 other question that -- that arises from it, and I suspect 23 -- I suspect the answer will be similar, and that is 24 that: Do you think there's a possibility that Mr. 25 Bradley came on the scene and -- and started to look
1471 quite critically at whether or not this case could 2 survive scrutiny and that -- and that maybe that wasn't 3 the approach that -- that was being taken previously and 4 that that may have explained some of -- some the tension 5 that -- that you felt between police and Crown? 6 MR. BRIAN BEGBIE: I think it was a total 7 different way in which he handled it. We -- we had a -- 8 we worked very closely with Mr. McKenna and Ms. Ferguson 9 and I -- I feel strongly that we explored all kinds of 10 different avenues and tried to be as exhaustive as we 11 could, but we always felt we were part of that process, 12 and honestly, when Mr. Bradley came in, that feeling was 13 gone. 14 MR. MARK SANDLER: Okay. If you'd go 15 back to the overview report at page 124, paragraph 284. 16 MR. BRIAN BEGBIE: I'm sorry, what page 17 number, sir? 18 MR. MARK SANDLER: Page 124. 19 MR. BRIAN BEGBIE: Okay. 20 MR. MARK SANDLER: And it's paragraph 21 284. We see that in or around June of 2000, Dr. Wood 22 sent an email to a colleague of his at the Bureau for 23 Legal Dentistry, and you may have heard this evidence 24 yesterday from Dr. Wood. Part of what he said was that, 25 with reference to Dr. Dorion, who appeared to be a
1481 defence retained expert, he reflects: 2 "It seems that Bob may have cooked some 3 data. The Crown and cops in Kingston 4 have asked me to do a hatchet job on 5 Dorion, so any help that you can offer 6 in extreme confidence would be most 7 helpful." 8 Can you assist the Commissioner as to how, 9 if at all, Dr. Wood was approached and what, if anything, 10 he was approached to do? 11 MR. BRIAN BEGBIE: Again, I think that's 12 the case. My opinion of that is that it's another 13 document that's quite poorly worded and some -- maybe 14 some legal jargon or legal slang -- the hatchet job and 15 the -- and that type of thing -- we would been looking 16 for, because we didn't have -- we didn't get these 17 reports disclosed from the defence. 18 We knew who the defence experts were going 19 to be -- sorry -- but we didn't have the reports and we 20 didn't have CV's. So we were trying to find background 21 on them; who are they, what are they, where have they 22 testified, that kind of thing, much the same that defence 23 do with -- with Crown witnesses. They get background on 24 them to challenge their credibility, and it's -- it's no 25 more, no less, maybe poorly worded.
1491 MR. MARK SANDLER: Okay. And then if 2 you'd go to page 131 of the overview report, paragraph 3 297. And we know that a meeting took place on September 4 the 18th of 2000, involving Detective Kennedy, Mr. 5 Bradley, Dr. Smith, and Dr. Wood in Toronto. 6 And we also know, from the chronology, 7 this is after Mr. Bradley has met with Dr. Ferris in 8 British Columbia, but before the Crown and the police 9 have obtained Dr. Ferris' lengthy report on the case, 10 okay -- 11 MR. BRIAN BEGBIE: Yes. 12 MR. MARK SANDLER: -- just to orient you 13 in certain terms of time. Were you at this meeting in 14 Toronto? 15 MR. BRIAN BEGBIE: No, I was not. 16 MR. MARK SANDLER: Were you aware that 17 such a meeting was taking place or -- or had taken place? 18 MR. BRIAN BEGBIE: I feel comfortable 19 saying I -- I would have known within a day or two (2) of 20 that, either prior or just after, certainly. 21 MR. MARK SANDLER: Okay. And if you're 22 unable to answer these questions, I certainly understand 23 because you were not at the meeting, but there's some 24 references there again to -- to some aspects of what the 25 defence expert's background might well be:
1501 "Ferris not allowed to do autopsies in 2 BC. Dorion never published a 3 scientific artifact. Michael Pollanen 4 has discredited Ferris before at trial. 5 Some information about Dorion's 6 involvement in -- in other cases." 7 And then on the following page, at 132, it 8 says: 9 "Dirt on Dorion and Ferris; commit to a 10 theory and stick to it." 11 Do you know what, if anything, the -- 12 might have been reflected by those comments as -- as 13 indicative of what was happening in the police 14 investigation? 15 MR. BRIAN BEGBIE: Well, these -- the -- 16 these two (2) fellows, Dorion and -- and Ferris, these 17 doctors had the opposing view, so -- and I -- and I 18 wasn't there and -- and I can only, I guess, try to 19 interpret what I -- what I think probably is -- is 20 happening there; is they're saying that they can get that 21 -- some negative articles, or some negative examples, 22 maybe for lack of a better word, to -- to challenge them 23 with if they come forward and actually do take a stand at 24 a -- at a case; they'd be -- their credibility -- that 25 they'd be challenged with the -- whatever we had.
1511 And commit to a theory and stick to it 2 would be -- now that there's dog -- doctors are saying 3 there's dog interference and injuries not consistent with 4 dog, that's that reassessment of the evidence, see where 5 it is, see how it fits will all the case and... 6 MR. MARK SANDLER: All right. We know 7 that Dr. Ferris' report, a lengthy report had been 8 prepared much earlier in September of 1998, but it was 9 ultimately provided to the Crown in October of this same 10 year that we're in now, 2000. 11 And at some point, were you provided with 12 Dr. Ferris' more lengthy report? 13 MR. BRIAN BEGBIE: Late October 2000, I 14 believe. The 3rd of October maybe, 2000. 15 MR. MARK SANDLER: And -- and from your 16 perspective as an investigator, how, if at all, did it 17 affect the investigative theory of the case? 18 MR. BRIAN BEGBIE: Well we didn't have -- 19 we had basically a cover sheet or a summary or synopsis. 20 And I believe that he actually sent two (2). He sent one 21 (1) to the original counsel and then he sent one (1) -- 22 when new counsel took over, he sent another one to them, 23 and we still didn't get the full report from the second 24 set of counsel. 25 And it wasn't until, as I say, in October
1521 '03, so there was -- or October 2000 rather. 2 MR. MARK SANDLER: Right. 3 MR. BRIAN BEGBIE: So you know, we -- we 4 certainly had his contradictory medical opinion that we 5 didn't have before. We had kind of general scope 6 comments and the report itself broke things down much 7 finer. 8 MR. MARK SANDLER: And -- and having 9 received the more fulsome report from Dr. Ferris in 10 October or November of 2000, how did it impact upon the 11 investigative view of the case? 12 MR. BRIAN BEGBIE: Well, it -- it 13 certainly challenged the findings of Dr. Smith and Dr. 14 Wood's original findings that there was no dog. It's 15 very unequivocal that there's dog, according to Dr. 16 Ferris in his report. Interesting enough for us, there 17 was no comment on the marks on the skull that aren't 18 attributed to dog, in Dr. Ferris' report, at least that I 19 could see. 20 And so he addresses all the -- all the 21 injuries that he feels strongly are -- are canine, but he 22 doesn't go near the other injuries that we have already 23 identified by Chiasson, by Wood, by Smith. 24 So we have still contradictory opinions. 25 MR. MARK SANDLER: Okay. One (1) of the
1531 things that he did do, I'm going to suggest, if one looks 2 at page 130 of the overview report, at Item N, is that he 3 reflects that: 4 "Dr. Smith concluded that the depth of 5 the penetration of one (1) of the necks 6 -- neck injuries could not have been 7 made by a canine tooth, which measures 8 up to 2 centimetres. In Dr. Ferris' 9 opinion, the skin of the neck and 10 tissues of the neck were capable of 11 distortion and stretching and it's 12 possible that the true depth of the 13 penetration of this injury might have 14 been as little as 1.5 centimetres." 15 So I take it -- I take your point, that -- 16 that his report did not address those incision like marks 17 that some attributed to a scalpel like object on the 18 head. It did address that deep thoracic injury that was 19 also one of the concerns that had been raised in the 20 course of the investigation. 21 Is that fair? 22 MR. BRIAN BEGBIE: That's fair. 23 MR. MARK SANDLER: All right. So if we 24 move from that report -- I'm just going to ask you about 25 a few of these and then we'll kind of see where we're all
1541 -- where we're at, at the end of the piece. 2 If you'd go from there to page 137. Here 3 we have Dr. Symes' report dated December the 7th of 2000. 4 And were you aware at the time that through the 5 assistance of the Chief Coroner's Office, Dr. Symes, a 6 leading anthropologist, was retained to -- to address the 7 issues in this case as well? 8 MR. BRIAN BEGBIE: Yes. Chris Barrett 9 actually delivered the exhibits to him from -- 10 MR. MARK SANDLER: Okay. And when his 11 report came back, did -- did you have occasion to become 12 familiar with what he had to say? 13 MR. BRIAN BEGBIE: I did. 14 MR. MARK SANDLER: And as reflected, at 15 page 137, he makes certain observations and -- and they 16 have been summarized here and I'm just going to take you 17 to -- to two (2) of them. At Item A he says: 18 "Large carnivore chewing attack in my 19 opinion is definitely indicated on the 20 arm bone. Conservatively with the 21 presence of carnivore evidence, the 22 punctures in the skull must be 23 considered strongly indicative of dog 24 attack as well. As well, the punctures 25 to the vertebrae must be considered as
1551 dog bites as well, assuming that a dog 2 could get to that area to bite." 3 And then he deals with the fresh cut marks 4 on the -- the skull which you've talked about, right? 5 MR. BRIAN BEGBIE: Correct. 6 MR. MARK SANDLER: And we're going to 7 come back to that. And then at Item C, he says: 8 "Upon reviewing a number of objects 9 seized from the Reynolds' home and 10 presented by Constable Barrett, while 11 no definitive comparisons were made, 12 there was no indication that any of 13 these weapons are highly suspect." 14 Right? 15 MR. BRIAN BEGBIE: Correct. 16 MR. MARK SANDLER: So, so am I right that 17 then one has presented to the police Dr. Symes' opinion 18 and Dr Symes' opinion adds to the mix in a couple of 19 ways. He's probably stronger in some of the views as to 20 dog attack that had existed at various locations on the 21 body. 22 He is prepared to say that none of the 23 weapons that were presented from the home, by Constable 24 Barrett, appear to be highly suspect in the case, but 25 what remains as a result of Dr. Symes' report are these
1561 fresh cut marks on the skull that appear to be fine 2 incisions that were created by a knife with thin-edged 3 bevel. 4 Have I fairly summarized where we're at at 5 the end of Dr. Symes? 6 MR. BRIAN BEGBIE: You have. 7 MR. MARK SANDLER: Okay. So, we've heard 8 from Mr. Bradley when he testified here that he actually 9 spoke with Dr. Symes in various conversations after the 10 report was received. 11 And -- and he took detailed notes of -- of 12 that conversation and you'll see at page 139 of the 13 overview report, he's asking him about -- about the 14 various marks and at the top of page 139: 15 "There was one (1) mark on both the 16 vault and the main part of the skull 17 that was caused by the saw used to cut 18 the skull which isn't uncommon in an 19 autopsy. The other marks were on the 20 side of vault. He described them to me 21 as being very fine cuts made 22 perpendicular to the skull surface. He 23 said these are consistent with a 24 scalpel or a sharp knife. He said a 25 scalpel can easily cut the surface of
1571 the bony skull. 2 I asked whether these marks could have 3 been caused by scissors, either a sharp 4 point of scissors or one blade of 5 scissors. His answer was that he could 6 not conceive of scissors causing these 7 marks." 8 And then jumping down to about the third 9 last paragraph: 10 "I asked about any of these marks being 11 caused by a paring knife as one of the 12 knives was a paring knife. Dr. Symes 13 said he couldn't rule it out, but that 14 he would say that, in his view, it 15 would be very unlikely and in any 16 event, not the paring knife he saw from 17 the officers. He said the cuts at the 18 side of the skull are not consistent 19 with the normal autopsy cuts used to 20 retract the scalp. 21 I also asked him, are cuts consistent 22 with anybody intentionally or 23 accidentally removing the scalp. And 24 he said no, 'cause except for the one 25 (1) small area where there was a
1581 scraping or shaving mark at the back of 2 the skull, all the other six (6) cuts 3 were what he would call straight 4 incision marks where the blade was 5 perpendicular to the bone surface, so 6 therefore not the type of mark that you 7 would expect where the instrument was 8 sliding under the surface of the scalp. 9 He consulted with some of his 10 colleagues in pathology, and they 11 agreed with his conclusions. He 12 apologized for his conclusions 13 realizing this was a murder case, but 14 he said he had to call it as he sees 15 it." 16 So putting together where the police were 17 at at this point, as a result of now receiving Dr. Symes' 18 report, now receiving Dr. Ferris' report, what was the 19 police mind set as to where the case was at as a result 20 of this added information? 21 MR. BRIAN BEGBIE: Well, at the risk of 22 being over simplistic because there's a lot of very long 23 medical terms and descriptions of injuries, we still 24 looked at it with, Ferris hasn't even went to describing 25 the cut marks; he's described every other one including
1591 the thoracic inlet. So that's where he's at. 2 MR. MARK SANDLER: Right. 3 MR. BRIAN BEGBIE: Dorion; all we ever 4 had from him was a report that said he looked at a 5 hundred and some-odd photos, and he says at least twenty 6 (20) are dogs. So, okay, we know that already. So 7 that's not particularly helpful at this point in the -- 8 in the game. 9 MR. MARK SANDLER: Fair enough. 10 MR. BRIAN BEGBIE: We have Wood, that's 11 standing by his version saying, you know what? There are 12 dog injuries or injuries that -- that a dog caused on 13 this little girl. 14 Smith says the same thing. He stands by 15 these cut marks. There's cut marks that a dog clearly 16 couldn't have done. 17 And then you have Symes saying the marks 18 are there, he -- he's looked at, not all of the injuries 19 that the girl had; obviously he's looking at a skull and 20 a humerus, I believe, at that point. So he offers his 21 opinion, but he still talks about these -- 22 MR. MARK SANDLER: Cut marks. 23 MR. BRIAN BEGBIE: -- these incised marks 24 on the -- or cut marks -- 25 MR. MARK SANDLER: Right.
1601 MR. BRIAN BEGBIE: -- on the skull. So 2 from that, we went back, to the person that actually did 3 the cutting at the autopsy and we took a statement from 4 him, and it was Barry Blenkinsop. And Barry Blenkinsop 5 said, I didn't have to cut there; the skull was already - 6 - or the scalp was already removed; there was no reason 7 to cut. So -- 8 MR. MARK SANDLER: So his recollection -- 9 MR. BRIAN BEGBIE: -- we have the mystery 10 still. 11 MR. MARK SANDLER: Right. So his 12 recollection -- 13 MR. BRIAN BEGBIE: So we're -- 14 MR. MARK SANDLER: -- was that he 15 wouldn't have had to cut there, and that was part of the 16 investigative process to respond to what we had. 17 MR. BRIAN BEGBIE: Right. And it's -- 18 it's consistent with what Symes says: You wouldn't 19 expect to see autopsy cuts there. And that's what 20 Blenkinsop says: I didn't cut there; this -- the scalp 21 was already gone. 22 So we've come full circle again. 23 MR. MARK SANDLER: Well -- well -- sorry, 24 in fairness, didn't Dr. Symes say, not that you wouldn't 25 ever expect autopsy cuts there, but you wouldn't expect
1611 autopsy cuts there to remove the scalp? 2 MR. BRIAN BEGBIE: I'm just going on the 3 -- he -- he said the cuts at the side of the skull are 4 not consistent with the normal autopsy cuts used -- 5 correct, to retract the skull. 6 MR. MARK SANDLER: Right. Okay. So -- 7 so hearing everything that you've said now, so one has to 8 put together a theory of the case. So, what did you see 9 as the -- as the theory of the case, having regard to 10 now all of this infusion of expert conflicting evidence 11 bearing upon the issues? 12 MR. BRIAN BEGBIE: Because the pathology 13 was so complex at this point and, you know, it's a mess. 14 We turned to the rest of the evidence in the case. And - 15 - and that's why we were prepared to -- and why we 16 basically took a stand that we still felt we had a case 17 that should go to Court. 18 MR. MARK SANDLER: Okay. And -- and I 19 guess what I'm asking is -- and -- and I understand that, 20 and as you've said earlier, the police view was that 21 there was -- there was significant circumstantial 22 evidence apart from the pathology that pointed in the 23 direction of -- of Ms. Reynolds. 24 I guess what I'm asking is: When 25 confronted with all of this expert testimony -- because
1621 we've moved from no dog bites to some dog bites to quite 2 a few things attributed to dog bites, including the deep 3 thoracic wound, to a residual series of incised wounds 4 that appeared to have been inflicted by a scalpel like 5 object, but that didn't seem to corelate to any of the 6 items found in the home that were put to -- to Dr. Symes. 7 So, I guess my question is: Recognising 8 that you felt that you had the circumstantial evidence of 9 consciousness of guilt or -- what did you see as the 10 theory of the -- of the police, as to what happened here? 11 MR. BRIAN BEGBIE: That -- that we felt 12 that the mother and the dog took part in that attack of 13 the little girl in the basement. That's -- that was our 14 -- based on all of the evidence, not just the patho -- 15 the pathology evidence, based on all the evidence, taken 16 all in the kind of totality, that's -- that was our 17 position. 18 MR. MARK SANDLER: All right. And was it 19 your theory that the dog had started or the dog had 20 followed up in what the had mother done, or did you know? 21 MR. BRIAN BEGBIE: I really didn't know. 22 I mean you're hypothesising at that point what took 23 place, but we felt quite strong, based on our other 24 evidence, that the mom was there, as well, and that the 25 cut marks -- the dog couldn't have done the cut marks.
1631 The dog couldn't have done -- accounted for or attributed 2 for some of the other evidence in the case. 3 And that's -- that's why we -- where we -- 4 why we stayed where we were with our position. 5 Having gotten Ferris' report and having 6 gotten the other expert's report, it was only a very, 7 very short time and a meeting was called at the Holiday 8 Inn, between the Crowns and the police and -- 9 MR. MARK SANDLER: Right. And I'm going 10 -- about to ask you about that in about -- in about 11 thirty (30) seconds, but if I -- if I can first ask you 12 one (1) other question, and that is if you look at page 13 146 of the overview report, we see that in -- in the 14 police chronology that you prepared, you reflect that: 15 "Ed Bradley phoned Smith, question him 16 at length, puts possible causes of 17 certain injuries to him, get's Smith to 18 basically tell him that he didn't 19 really look close at the excised scalp, 20 which may have assisted in determining 21 several sharp incised wounds at that 22 location. As well, he gets Smith to 23 say it will be very difficult now to 24 meet the test of the probability of 25 conviction. Interestingly enough,
1641 these phone calls and cross-examination 2 of experts witness by Bradley was done 3 without any knowledge of the Kingston 4 investigators or Bradley's other co- 5 Crown, Jennifer Ferguson." 6 I mean, I'll just ask you straight up. 7 What -- what is it that -- that you were implying, or -- 8 or suggesting in -- in that regard? 9 MR. BRIAN BEGBIE: Well, I go back to the 10 statement I made earlier with -- that we -- we kind of 11 part -- it was like a team. We knew what was going on; 12 we were part of the decision-making process. 13 When Mr. Bradley come on, that wasn't the 14 case, and -- and there -- the Crown attorney that's 15 working with them, isn't even aware of some of those 16 interviews that are taking place. 17 I don't know what the practice is with 18 other Crowns' offices, but I know in Kingston, when 19 they're going to interview potential witnesses, there's 20 always a police officer there because there's evidence 21 that comes forward; who's going to give it. 22 MR. MARK SANDLER: All right. And -- 23 MR. BRIAN BEGBIE: Who's going to take 24 the report; who's going to take the statement? 25 MR. MARK SANDLER: What I -- what I take
1651 from you is that your concern was -- was more about the - 2 - the process and the lines of communication, as opposed 3 to Mr. Bradley's right to confront Dr. Smith with the 4 tough questions that arose in the case. 5 MR. BRIAN BEGBIE: Correct. 6 MR. MARK SANDLER: Okay. If you move 7 from there to -- to what happened at the Holiday Inn on 8 January the 12th and January the 15th, could you describe 9 for the Commissioner, briefly, what it is that happened 10 on that date, as you see it? 11 MR. BRIAN BEGBIE: Well, there was -- we 12 -- we met at the Holiday Inn, and it was said that it was 13 going to be a review, and basically, like the one (1) we 14 did in November of '99, I guess, to see where we were at, 15 with everything that -- where we're at now with the -- 16 the mess, kind of, the pathology evidence was at, or all 17 the contradictions, and -- and where that had gone to -- 18 MR. MARK SANDLER: And -- and -- 19 MR. BRIAN BEGBIE: -- combined with all 20 our other evidence. 21 MR. MARK SANDLER: Right. I'm sorry. I 22 didn't mean to interrupt. 23 MR. BRIAN BEGBIE: Oh, that's fine. 24 MR. MARK SANDLER: What I wanted to ask 25 you is that we're going to get to what the bottomline was
1661 at the end of the meeting, but did the police -- whether 2 yourself or any other officer -- take any issue with the 3 fact that the developments in the case compelled having 4 this kind of a meeting? 5 MR. BRIAN BEGBIE: Oh, no. Not having 6 the meeting, no. 7 MR. MARK SANDLER: Okay. So -- so at the 8 meeting, I -- I take it there was a review of -- of the 9 evidence that was available in the case; not only the 10 pathology evidence, but the other body of circumstantial 11 evidence that you've made reference to? 12 MR. BRIAN BEGBIE: Went through a -- a 13 fair amount, yes. 14 MR. MARK SANDLER: Okay. And we heard 15 from Mr. Bradley what his perception was as to how the -- 16 the meeting concluded, at least the meeting of January 17 the 12th. 18 And what do you have to say as to what the 19 bottomline was for the various participants at the 20 meeting? 21 MR. BRIAN BEGBIE: Well, the bottomline 22 was they were going to withdraw the charge because the 23 word that kept coming up was "causation". They can't 24 prove causation. Without causation, they can't move 25 forward.
1671 MR. MARK SANDLER: All right. And was 2 that the view of all of the Crown attorneys at the 3 meeting, first of all? 4 MR. BRIAN BEGBIE: I would say yes. 5 MR. MARK SANDLER: And was that -- 6 MR. BRIAN BEGBIE: The ones that 7 certainly made their opinion known, yes. 8 MR. MARK SANDLER: Fair enough. And was 9 that the view of the police officers at the meeting? 10 MR. BRIAN BEGBIE: No. 11 MR. MARK SANDLER: All right. So we 12 heard from Mr. Bradley about going around the room, and 13 the -- and the opinions expressed, and his -- his 14 perception was that all but one (1) of the officers, and 15 -- and I don't know if he used the word "begrudgingly", 16 or -- or otherwise, but that the officers, at least, 17 understood the decision that was being made not to 18 proceed. 19 What was your state of mind at -- at the 20 end of this review of the various facts in the case? 21 MR. BRIAN BEGBIE: I -- I would -- his 22 assessment isn't quite what mine was. I think all the 23 police there certainly respected the fact that -- the 24 decision -- the ultimate decision to go ahead is the 25 responsibility of the Crown attorney.
1681 We -- we recognized that. And the fact 2 that they're going ahead doesn't necessarily mean that we 3 have to agree with it or like it, but that's just -- 4 that's the way it is. That's their responsibility. 5 We had different opinions. We had opinion 6 we felt that we could still, in fact, proceed with this 7 case based on all the total -- the total evidence. The 8 whole -- everything that was available to us. 9 I mean there's -- there's case law that 10 you can, you know, proceed without -- homicide 11 investigations without bodies. We did one (1) just a 12 couple years ago. You certainly couldn't prove causation 13 there either, but the -- the evidence package was strong 14 enough that we proceeded, and we were successful of that. 15 MR. MARK SANDLER: It might -- it might 16 be more accurate to say you could prove causation in that 17 case, but through the circumstantial evidence rather than 18 the pathology? 19 MR. BRIAN BEGBIE: Well, it's -- it's 20 another -- yeah, it's another whole case, but the -- the 21 evidence -- the evidence, aside from the medical in that, 22 was -- was strong. And we felt strongly about this too. 23 MR. MARK SANDLER: Okay. And Mr. Bradley 24 said that on the -- on the second date, January the 15th 25 of 2001, he actually got Dr. Smith on the phone to
1691 confirm what Dr. Smith had had to say about the pathology 2 in light of the more recent evidence, and that -- and 3 that one (1) of the officers was actually listening in on 4 the other line when that conversation took place. 5 Were you a party to that? 6 MR. BRIAN BEGBIE: No. 7 MR. MARK SANDLER: Were you aware that 8 that was taking place? 9 MR. BRIAN BEGBIE: Yes. 10 MR. MARK SANDLER: Okay. Now moving 11 ahead, we actually see that on January the 21st of 2001, 12 the -- the charges were withdrawn against Ms. Reynolds, 13 and a fairly lengthy statement was read into the record 14 in support of the withdrawal of the charges. 15 And -- and I know that -- that you and the 16 Kingston Police Service, had some concern about the -- 17 the process that -- that you -- that you want to make 18 reference to, so -- so tell me what happened. 19 What was the -- what was the police role 20 in the statement that was crafted? 21 MR. BRIAN BEGBIE: Well, right after the 22 meeting at the Holiday Inn, there was another one (1) 23 within a couple days, and it was to prepare -- everyone 24 was basically sworn to secrecy. They were afraid of 25 media leaks at that point.
1701 And it was to prepare what was going to be 2 released in -- in the -- in the Court forum. And we were 3 assured several times, Don't worry. It's not going to 4 reflect badly on the police. And they said it's not -- 5 we're not worried it's -- I mean, this is -- it's not 6 about that. 7 But there was a -- there was a drafted 8 release that was going to be read in by the Crown, and I 9 guess, in a nutshell, what happened with that is that 10 again, one (1) of those eleventh hour things in the 11 morning that it's going to be read into Court, there's a 12 paragraph that goes missing from that particular package 13 to read in. 14 And it's -- it dealt entirely with the 15 missing evidence from the coroner's office. Because 16 along with the cast, there was x-rays lost as well. 17 MR. MARK SANDLER: All right. And -- and 18 I -- I take it what you're saying is that -- that you 19 wanted to be heard on whether that item should be deleted 20 from the facts that were read into the Court, and the 21 police felt that -- that that component was something 22 that ought to have been articulated as part of the 23 withdrawal reasons? 24 MR. BRIAN BEGBIE: Everybody at the table 25 did, because that's why it was in, prior to. That was
1711 the -- that was what was going in. That was what was 2 prepared and agreed upon to go in. 3 So when it got changed at, as I say, the 4 eleventh hour the morning of, and we challenged that with 5 Crown Ferguson. She said, It's not my decision. I had 6 nothing to do with it, so. 7 MR. MARK SANDLER: Okay. After the 8 withdrawal took place, your Chief was very, very public 9 in expressing concerns about what had transpired in the 10 case, including the decision to withdraw, and -- and the 11 process that had led to it. 12 And you're aware of that, I take it? 13 MR. BRIAN BEGBIE: I am. 14 MR. MARK SANDLER: And at page 157, and 15 I'm not going to take you to all of the passages in -- in 16 Chief Closs' correspondence, but what he reflects there 17 at the last quoted paragraph at page 157, in the middle 18 of the page: 19 "The investigating officers were not 20 included in the decision to withdraw 21 the charge and believed at the time 22 that the real purpose of the withdrawal 23 was to protect the government." 24 Does that accurately represent the state 25 of mind of the investigating officers on the case?
1721 MR. BRIAN BEGBIE: We didn't -- we didn't 2 actually know what the underlying reason was, other than 3 -- I mean, what we're talking about here today is the 4 changed pathology -- but we still felt very strongly that 5 the rest of the evidence that we had was being 6 overlooked. And no one would explain the reasons why 7 when we give the arguments about -- what about -- I mean, 8 this stuff has to factor into it. 9 It's not just a pathology case. And 10 again, in the end, it wasn't our -- wasn't our decision 11 to pull that. The -- I think the protecting of the 12 government talks to the protecting of Dr. Smith and -- 13 and that's the feeling. 14 Like if a police officer makes a mistake, 15 at a prelim or whatever, he has to take the stand, and -- 16 and explain. I made a mistake. We've seen that. I made 17 a mistake, and you know what, I'm human. And it was like 18 he didn't -- he -- he was shielded from that. So, yes, 19 that was certainly some of the thought process. 20 COMMISSIONER STEVEN GOUDGE: What were 21 the mistakes from the police point of view, Sergeant? 22 Were they the pathology mistakes, or losing the x-rays, 23 or losing the cast, or all? 24 MR. BRIAN BEGBIE: I -- I'm -- the -- 25 from our perspective, what the mistakes were?
1731 COMMISSIONER STEVEN GOUDGE: Yes. 2 MR. BRIAN BEGBIE: Well, it was the 3 pathology was -- was -- what everybody kept talking 4 about, causation, causation, without really -- I mean we 5 -- we went around the table at that meeting, but it 6 really kept coming back to causation, and we didn't think 7 that enough weight got given on what we felt was pretty 8 significant other evidence. 9 As far as mistakes in the investigation, I 10 -- I've said earlier, you know, somebody could probably 11 go through it and critique it, absolutely; you could go 12 through anyone, but I mean the -- the most highly 13 publicized, and the most highly charged is obviously the 14 pathology evidence in this case. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: I -- I should ask you, 18 in -- in fairness to -- to those who prepared the 19 statement, that -- that if -- if one (1) of the mistakes 20 that Dr. Smith made in the case was -- was the change -- 21 the change or the earlier mis-diagnosis in -- in the 22 pathology, the withdrawal certainly highlighted that 23 change in evidence, did it not, in the reasons that were 24 given? 25 MR. BRIAN BEGBIE: Well, it -- it
1741 certainly come out -- yes -- eventually, yes -- maybe not 2 so much that morning, but certainly in the days, and 3 months, and years that followed it has. 4 MR. MARK SANDLER: But -- but I mean that 5 -- that when one -- when one reads the -- the basis upon 6 which the withdrawal was articulated by Mr. Griffith in 7 Court, it included a very detailed discussion of the 8 original unequivocal opinion that had been expressed by 9 Dr. Smith and how that opinion had changed as a result of 10 the -- the later events, did it not? 11 MR. BRIAN BEGBIE: Well, it -- it did to 12 some degree, but I think it's -- it's watered down to the 13 fact that -- I mean that -- they were pretty significant 14 things in the case that those things -- certainly the 15 cast was lost; it played a role in the case and it just 16 -- it just disappeared, so -- 17 MR. MARK SANDLER: Okay. 18 MR. BRIAN BEGBIE: -- without a whole lot 19 of explanation as to why. 20 MR. MARK SANDLER: Now -- 21 MR. BRIAN BEGBIE: Any explanation as to 22 why. 23 MR. MARK SANDLER: All right. Now, in my 24 questions, I've endeavoured to cover a variety of areas 25 in which the police perspective as being communicated
1751 through you on this particular case. 2 I want to direct this question to -- to 3 you personally, and not necessarily representative of 4 what anybody else things, but what you think. Based upon 5 your experience in this case and your experience 6 generally as a seasoned police officer, are there 7 recommendations that you'd like to advance to the 8 Commissioner for his consideration? 9 MR. BRIAN BEGBIE: There's -- there's 10 some that I've already heard, I think are excellent 11 ideas. The reciprocal disclosure is -- is a huge issue. 12 We've seen it in this case with both defence experts 13 reports. We didn't get them for some time, well, 14 particularly Ferris'. 15 I must confess that somebody was -- 16 testified before Your Honour here at -- regarding CFS 17 issues and submissions. 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 MR. BRIAN BEGBIE: And I have not had an 20 opportunity to read the transcripts or the evidence 21 there, and just when I -- I got a glimpse of it, I 22 thought it had to do with submissions and dates and 23 timely submissions, and -- and I know an issue and I 24 don't know whether it come up that day, and if does, I 25 apologize for repeating it, but it's not so much timely
1761 submissions. 2 I think you'll find that in a lot of 3 investigations, the investigators, they want to get all 4 the stuff there as fast as they can. It's just CFS can't 5 handle it. They don't have the resources, and they're 6 very particular what they'll take. 7 You have to fight to get a lot of stuff. 8 You have to articulate and -- and I've had to attend 9 meetings there to get them to -- to test and to examine 10 certain things. 11 And I completely understand that because 12 they can only do so much with what they have, and they 13 have to do all the cases, so that is an issue. They -- I 14 -- I think they're resource-strapped, and when you have a 15 death investigation, you could wait five (5), six (6) 16 months for tox or something else -- for toxicology to 17 come back -- and that's problematic. 18 So resources for CFS, that's kind of a 19 broad one (1), but it certainly impacts on policing. 20 Peer review has been mentioned. I think 21 that's a good idea. I -- I don't sit here and pretend to 22 be the person that has the exact formula or -- or program 23 that -- that's going to achieve what we're looking for, 24 but I think the -- the concept of peer review is a good 25 one (1).
1771 And another one (1) that is -- is somehow, 2 and I don't know how it can be incorporated, is -- is 3 people staying within their scope of authority of their 4 expertise. We had, what I thought were, very 5 inappropriate comments by Dr. Ferris. 6 He's a doctor and he's telling Ed Bradley 7 in a trip out west, You should be pulling this charge if 8 it was out here. Well, he's not a lawyer. He's not a 9 Crown. It's not his responsibility. He's -- in my 10 opinion, he shouldn't -- not ought to be commenting on 11 what should be going ahead and what not. He's -- he's -- 12 he can offer his medical opinion on the -- on the 13 examinations and things, you know, but he doesn't have 14 the rest of the picture of the evidence, so I think 15 comments like that are -- I think people need to stay 16 within their scope of expertise. That's what really 17 comes to mind for me. 18 MR. MARK SANDLER: Thank you very much. 19 COMMISSIONER STEPHEN GOUDGE: Thanks, 20 Inspector, that is helpful. 21 MR. MARK SANDLER: Those are my 22 questions. Thank you, Commissioner. 23 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 24 Sandler. 25 We have a rather longer set of times than
1781 the times would be available without gritting our teeth, 2 but since we were responsible for starting half an hour 3 late we will grit our teeth. But I will invite all of 4 you to try and do it in a little less than the time you 5 have proposed. 6 So, Ms. Baron, we will start with you, 7 twenty (20) minutes, do it in fifteen (15) if you can. 8 MS. ERICA BARON: I'll probably do it in 9 ten (10), Commissioner. 10 COMMISSIONER STEPHEN GOUDGE: Even 11 better. You will set the momentum in place. 12 MS. ERICA BARON: That's right. 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 MS. ERICA BARON: No criticisms for using 15 less time today, I'm sure. 16 17 CROSS-EXAMINATION BY MS. ERICA BARON: 18 MS. ERICA BARON: Sergeant MacLellan, 19 I've got a few follow-up questions for you about your 20 evidence this morning. 21 I take it from what you said that Dr. 22 Smith told you -- sorry, I act for Dr. Smith, my name is 23 Erica Baron. I'm trying to be efficient here. 24 Dr. Smith, I take it, told you from the 25 outset that this was a challenging case from a pathology
1791 perspective? 2 MR. GREGORY MACLELLAN: I think the word 3 was "difficult" case. 4 MS. ERICA BARON: Okay. And he told you 5 from the outset that he couldn't rule out that Joshua may 6 have died from natural causes? 7 MR. GREGORY MACLELLAN: Yes. 8 MS. ERICA BARON: And I take it that 9 remained his opinion, to your understanding, throughout 10 the case? 11 MR. GREGORY MACLELLAN: Yes. 12 MS. ERICA BARON: And when you talked 13 about having grounds upon which to -- reasonable grounds 14 upon which to lay charges against Joshua's mother, I take 15 it the basis was the circumstantial evidence that you had 16 surrounding the case and less so the pathology evidence? 17 MR. GREGORY MACLELLAN: The pathology 18 evidence was important in that it allowed for -- the 19 death was, in his words, consistent with smothering but 20 still possible through other causes, as opposed to a 21 pathology report that pointed to another cause which 22 certainly would have had a huge impact on the case. 23 MS. ERICA BARON: Right. But I take it 24 there was other evidence that led you to believe that 25 Joshua's mother may have responsible for his death?
1801 MR. GREGORY MACLELLAN: Yes. Based on 2 the pathology report alone we would not have laid the 3 charge, sorry, it's -- it's reviewing all of the evidence 4 together. 5 MS. ERICA BARON: Okay. And when Dr. 6 Smith disclosed the existence of the skull fracture that 7 he believed to have found on microscopy, I take it he 8 told you at that time that he didn't view it as being 9 very important? 10 MR. GREGORY MACLELLAN: Yes, that was my 11 impression of the conversation; that it didn't have a lot 12 of significance other than the fact that it wasn't 13 mentioned at the beginning. I felt that problematic, as 14 far as him giving evidence and his credibility. 15 MS. ERICA BARON: Setting aside that 16 issue, in terms of his belief about the case or his 17 understanding of the case you didn't understand him to be 18 saying that it was an important finding from a 19 pathological perspective? 20 MR. GREGORY MACLELLAN: No, I can't talk 21 to his beliefs, but his comments to me made me believe 22 that the -- the skull fracture could have occurred 23 naturally, even at child birth. 24 MS. ERICA BARON: Okay. Thank you. 25 Those are my questions for you.
1811 Now, sorry, you don't have a -- Inspector 2 Begbie, I -- do I -- 3 MR. BRIAN BEGBIE: Yes. 4 MS. ERICA BARON: -- that right? Okay. 5 I just have a few general questions for 6 you first. 7 Very early on in Mr. Sandler's examination 8 he asked you about whether you typically share 9 inculpatory statements made by potential suspects with 10 pathologists, and the answer you gave didn't -- didn't 11 quite connect for me and so I just have a follow-up 12 question on that point. 13 Would you typically share with a 14 pathologist doing a post-mortem the nature of the -- of a 15 confession that the police may or may not have -- may 16 have received from a potential suspect in a case? 17 MR. BRIAN BEGBIE: I'd have to qualify 18 that. It may depend on the situation. If it was a case 19 that -- we've had not very oft -- I certainly haven't had 20 a confession before an autopsy takes place but if that 21 ever were the case, and say it was somebody that said, 22 Yes, I did it, I -- I suffocated them using a pillow or I 23 did something else, it would be important because you 24 could -- it could be a false confession for all we know, 25 and it could be a -- a situation you have to include or
1821 exclude and -- and it would be important that he could 2 look for certain things then. 3 It may be you get -- well, that's probably 4 as good as an example that I can give. 5 MS. ERICA BARON: So your point being 6 that sometimes the -- not necessarily who's made the 7 confession but the nature of the confession might help 8 direct the pathologist to look for particular signs on 9 the body that they might otherwise miss if they didn't 10 know about those -- that potential inculpatory statement? 11 MR. BRIAN BEGBIE: That's fair, yes. 12 MS. ERICA BARON: Okay. And you hear 13 Sergeant MacLellan talk a little bit about taking notes 14 during autopsies. 15 You have attended autopsies with numerous 16 pathologists I take it? 17 MR. BRIAN BEGBIE: Yes. 18 MS. ERICA BARON: And would you agree 19 with me that pathologists typically ask you not to take 20 notes during autopsies? 21 MR. BRIAN BEGBIE: Generally they'll -- 22 I'll tell them if I'm taking a note. It'll -- I'm just 23 noting this or I'm noting this. But I don't -- I don't 24 take notes of their free speech, like their talking. 25 Some -- some talk through it; like they'll
1831 do an exercise and they'll be talking as they go, and 2 it's not necessarily etched in stone opinion. It's ideas 3 that they're doing. I would not note that, but -- 4 MS. ERICA BARON: Okay. 5 MR. BRIAN BEGBIE: -- if something was 6 given to me, evidence, something like that, obviously I 7 would make note of that. 8 MS. ERICA BARON: All right. Now, I just 9 want to lastly turn to the issue of what Dr. Smith was 10 aware of with respect to the potential of a dog 11 involvement at the time the post-mortem examination was 12 conducted. 13 I gather from the evidence you gave this 14 morning, or before the lunch break anyway, that the 15 possibility of a pit -- a pit bull involvement in 16 Sharon's death could not possibly have been communicated 17 by Constable Goodfellow to Dr. Smith at the time of the 18 post-mortem, because the police simply didn't know about 19 that possibility? 20 MR. BRIAN BEGBIE: That's correct. 21 MS. ERICA BARON: And that -- in fact 22 didn't even know that there had been a pit bull in the 23 house at the time? 24 MR. BRIAN BEGBIE: Correct. 25 MS. ERICA BARON: Thank you, those are my
1841 questions. 2 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 3 Baron. 4 Ms. Craig...? 5 COMMISSIONER STEPHEN GOUDGE: Twenty-five 6 (25) minutes. 7 MS. ALISON CRAIG: Yes. And I will not 8 use it all. 9 COMMISSIONER STEPHEN GOUDGE: See how 10 much you can beat it by. 11 MS. ALISON CRAIG: I absolutely will, 12 thank you, Commissioner. 13 14 CROSS-EXAMINATION BY MS. ALISON CRAIG: 15 MS. ALISON CRAIG: Good afternoon, 16 gentlemen. My name is Alison Craig and I'm one (1) of 17 the lawyers acting for nine (9) individuals who were 18 convicted of crimes in cases in which Dr. Smith was 19 involved in one way or the other, including Joshua's 20 mother. 21 So, Sergeant MacLellan, my questions are 22 going to be directed at you. And I understand you had no 23 previous experience in childhood death investigations 24 before Joshua's Case, is that fair? 25 MR. GREGORY MACLELLAN: I may have been
1851 involved in some SIDS type deaths, but this was the first 2 suspicious. 3 MS. ALISON CRAIG: Fir -- okay. 4 MR. GREGORY MACLELLAN: Death. 5 MS. ALISON CRAIG: And had you ever been 6 the lead investigator before in a homicide investigation 7 of any sort? 8 MR. GREGORY MACLELLAN: No. 9 MS. ALISON CRAIG: All right. And if we 10 could turn us please, Registrar, PFP128333, and it's Tab 11 2 of your binder, it's a transcript of your notes, and 12 I'm looking at page 12. Page 12 of the document. I 13 think it's page 9 of your notes. 14 15 (BRIEF PAUSE) 16 17 MS. ALISON CRAIG: And then towards the 18 bottom, the last main paragraph, about halfway through, 19 it says: 20 "I requested that an OPP investigator 21 be contacted to assist. I feel that 22 what has been said so far should be 23 analysed by an experienced homicide 24 investigator to ensure that the next -- 25 the right approach is taken and nothing
1861 is missed." 2 And then on the next page we can see that 3 you attended the deputy's house, and your notes indicate 4 you explained that quote: 5 "I've never been involved or trained in 6 homicide investigation. Requested 7 assistance from OPP. After lengthy 8 discussion, reluctant to allow OPP to 9 take over but will give me the help of 10 an experienced office -- officer." 11 So that request was made right at the 12 beginning of the investigation? 13 MR. GREGORY MACLELLAN: Yes. 14 MS. ALISON CRAIG: And you were being 15 very honest here, and I -- I'd -- fair to say you were 16 somewhat uncomfortable, were you, being in the position 17 of the lead investigator? 18 MR. GREGORY MACLELLAN: I wanted to 19 ensure everything was done right. You know, I was a good 20 investigator, which the Deputy reminded me of -- 21 MS. ALISON CRAIG: Right. 22 MR. GREGORY MACLELLAN: -- but still the 23 lack of experience concerned me. 24 MS. ALISON CRAIG: Right. And I'm not 25 being critical. You felt you were doing the responsible
1871 thing by asking for some assistance, is that fair? 2 MR. GREGORY MACLELLAN: Yes. 3 MS. ALISON CRAIG: Okay. Why was the 4 Deputy reluctant to give you help, do you know? 5 MR. GREGORY MACLELLAN: I think you'd 6 have to speak to the politics of small town policing, and 7 the dynamics with the OPP, and the taking over of small 8 town police services by the OPP. 9 MS. ALISON CRAIG: So in the end, you 10 were really left on your own with the offer of assistance 11 in certain circumstances, is that fair? 12 MR. GREGORY MACLELLAN: Well, I wouldn't 13 say I was left on my own. The issue with the OPP at that 14 time, they -- you can go -- I could go to an OPP special 15 unit, such as surveillance, behavioural sciences, Ident 16 people, you can access -- if you need diaries, you can 17 access these units quite easily, and that was all 18 available to me, whatever I needed in that type of scope. 19 And we did make use of that; through behavioural sciences 20 obtained an interviewer. 21 The -- at that time, to get investigators 22 from the OPP to have, say an experienced homicide 23 investigator assigned, they would only do that if they 24 took over the case. And that's where the -- the politics 25 come in; the actually --
1881 MS. ALISON CRAIG: Okay. 2 MR. GREGORY MACLELLAN: -- taking over 3 the case. 4 MS. ALISON CRAIG: Okay. Thanks. And 5 just briefly, on the tibia fracture. Now, I understand 6 it -- at the beginning of your investigation, it was a 7 coroner's case, and it was the tibia fracture that turned 8 it into a suspicious case. Is that fair? 9 MR. GREGORY MACLELLAN: Yes. 10 MS. ALISON CRAIG: Okay. And Dr. Smith, 11 it seems to me, placed a good deal of weight, or 12 significance, on this tibia fracture. 13 Did you nod? Is that fair? 14 MR. GREGORY MACLELLAN: He -- he was 15 consistent throughout in saying that it's indicative. It 16 -- it's one (1) that statistically is indicative of child 17 abuse. 18 MS. ALISON CRAIG: Okay. 19 MR. GREGORY MACLELLAN: And I believe all 20 of the other doctors that ever became involved where 21 consistent with that, too. 22 MS. ALISON CRAIG: Okay. But is it fair 23 to say that there were several doctors all present during 24 the resuscitation attempt, who in their statements to 25 police, described hearing a pop at the time of, I think
1891 it was inserting an IV into -- into the tibia. 2 MR. GREGORY MACLELLAN: Mm-hm. 3 MS. ALISON CRAIG: Several doctors 4 described that. 5 MR. GREGORY MACLELLAN: Yes. 6 MS. ALISON CRAIG: Yeah, but is it fair 7 to say that ultimately on that issue, you deferred to Dr. 8 Smith's interpretation of it? 9 MR. GREGORY MACLELLAN: Dr. Smith, and I 10 believe eventually Dr. Babin, talk about the healing 11 nature of the fracture, which eliminated it occurring in 12 the emergency room. 13 MS. ALISON CRAIG: Okay. Now, prior to 14 the autopsy -- when you attended for the autopsy, do you 15 recall if you told Dr. Smith about the circumstances in 16 which Joshua was found, and by that I mean being 17 surrounded by blankets, and the sleeping environment he 18 was in? 19 Do you know if you gave him that 20 information? 21 MR. GREGORY MACLELLAN: I could look at 22 my notes. I couldn't tell you exactly how much 23 information was exchanged. Like I say, when we got 24 there, and we were -- were told to leave for an hour, 25 that kind of stuck in my mind. But there -- there may
1901 have been some exchange of information there. 2 MS. ALISON CRAIG: Well, from my reading 3 of your notes, it's -- it's not in there anywhere. 4 Please correct me if I'm wrong. 5 MR. GREGORY MACLELLAN: No, if we can go 6 to where that is in my notes. 7 MS. ALISON CRAIG: I believe they're 8 contained at Tab 2. 9 10 (BRIEF PAUSE) 11 12 COMMISSIONER STEVEN GOUDGE: So rather 13 than go through them all, Ms. Craig, it -- 14 MR. GREGORY MACLELLAN: No, I see the 15 spot. It's -- it's here at -- 16 COMMISSIONER STEVEN GOUDGE: Have you 17 found it? 18 MR. GREGORY MACLELLAN: -- page 10. 19 COMMISSIONER STEVEN GOUDGE: Page 10? 20 MR. GREGORY MACLELLAN: I'm talking about 21 the are -- area in the notes where it describes us first 22 having contact with Dr. Smith -- I believe that was your 23 question -- right, at that time period. 24 25
1911 CONTINUED BY MS. ALISON CRAIG: 2 MS. ALISON CRAIG: Yes. Yes, thank you. 3 MR. GREGORY MACLELLAN: I don't believe 4 there was a lot of conversation there. I don't think a 5 lot of information was exchanged, because very quickly we 6 were told to leave the room -- 7 MS. ALISON CRAIG: Okay. 8 MR. GREGORY MACLELLAN: -- and the 9 conversation centred around that. I know there's a bit 10 of a I didn't want to leave, and he wanted me to leave. 11 MS. ALISON CRAIG: And if we could pull 12 up the overview report please, at page 108, paragraph 13 213. And this is Dr. Pollanen's report from 2006 that 14 I'm referring to. 15 16 (BRIEF PAUSE) 17 18 MS. ALISON CRAIG: Page 108. 19 MR. GREGORY MACLELLAN: Yes, I have it. 20 MS. ALISON CRAIG: And at the bottom he 21 says: 22 "An important consideration in this 23 case is the scene, since it may have 24 been -- it may have important 25 implications for the cause of death.
1921 Specifically, the infant was found face 2 down in a makeshift crib, the crib was 3 constructed from a playpen using a 4 sleeping bag and a quilt as a sleeping 5 surface. In addition, Joshua's mother 6 indicated to the police that the 7 comforter had been bunched up at the 8 end of the playpen around his head, and 9 the infant had only been recently 10 sleeping in the playpen, rather than a 11 basinet. 12 Based on prevailing thinking, this 13 could very well be a significant factor 14 to explain death. Forensic 15 pathologists have become increasingly 16 aware that unsafe sleeping environments 17 are often associated with sudden death 18 in infancy." 19 For the sake of time, I won't read the 20 rest, as intended, but we know this was your first 21 experience in investigating a suspicious death of a 22 child. 23 We've established that, correct? 24 MR. GREGORY MACLELLAN: Yes. 25 MS. ALISON CRAIG: And you were a little
1931 unclear this morning, but I'm going to suggest to you, 2 from my review of your notes, perhaps you can't remember, 3 but it seems to me that nowhere during this investigation 4 was the topic of an unsafe sleeping environment seriously 5 taken into consideration by yourself or in your 6 discussions with Dr. Smith. 7 Is that fair? 8 MR. GREGORY MACLELLAN: No, there were 9 conversations where it was brought up, I believe by me. 10 You know, could -- could an infant smother in blankets 11 type of thing. 12 I can't remember the ex -- explanation 13 why, but the answer, he didn't feel -- he didn't feel 14 that -- that would happen or was so very unlikely to have 15 happened. And I understand over time that theory has 16 developed; not necessarily that it was a strong theory at 17 the time we were conducting this investigation. 18 MS. ALISON CRAIG: Okay. And the last 19 issue I will address with you is, again, I'll refer to it 20 as the "mould theory". And we covered -- Mr. Sandler 21 covered that in some good depth this morning, so I won't 22 have to, but you would agree with me that right from the 23 outset of the investigation, Joshua's mother was 24 expressing concern that mould in her apartment may have 25 had something to do with -- with Joshua's death.
1941 MR. GREGORY MACLELLAN: Yes. 2 MS. ALISON CRAIG: And we know that in 3 January, before Joshua's death, his mother again 4 expressed concerns on several occasions. She had called 5 her superintendent to complain. 6 MR. GREGORY MACLELLAN: Yeah, and I 7 understand that occurred. 8 MS. ALISON CRAIG: And she took Joshua to 9 the doctor because he was short of breath. 10 MR. GREGORY MACLELLAN: I believe so. 11 MS. ALISON CRAIG: And in fact, I believe 12 she had made arrangements to move out of the apartment 13 because of the mould problem. 14 MR. GREGORY MACLELLAN: Yes. 15 MS. ALISON CRAIG: And I believe you are 16 aware that the two (2) months prior to his death, Joshua 17 was treated for nashal -- nasal congestion, dry cough, 18 vomiting and diarrhea, flu-like symptoms. 19 MR. GREGORY MACLELLAN: I would have gone 20 over the medical reports at the time. We have tried to 21 obtain every medical report in his short life. 22 MS. ALISON CRAIG: Okay, so it's fair to 23 say that the information that Joshua's mother was 24 providing you was certainly substantiated by other parts 25 of your investigation.
1951 MR. GREGORY MACLELLAN: I'm sorry? 2 MS. ALISON CRAIG: That her concerns 3 about mould were substantiated by some of these other 4 parts of your investigation that the -- the blanket; 5 there was a blanket that tested positive for mould. 6 MR. GREGORY MACLELLAN: It showed -- it 7 showed me that she was concerned about mould all along, 8 yes. 9 MS. ALISON CRAIG: But -- but it wasn't 10 just her concern, it was other aspects of your 11 investigation substantiated it, and, in fact, am I -- 12 MR. GREGORY MACLELLAN: When we -- when 13 we explored for mould and then we determined that there 14 was the same type of mould was being investigated in 15 Atlanta, certainly, and she had -- she had seen a news 16 documentary talking about it, and we went and got that. 17 Now all these things -- 18 MS. ALISON CRAIG: Right. 19 MR. GREGORY MACLELLAN: -- made the mould 20 theory stronger. 21 MS. ALISON CRAIG: And I -- I think it's 22 quite clear from both the documents and your evidence 23 that you did pursue this quite diligently and consulted 24 several experts. I won't review them all again, but I do 25 have a question or two (2) about a couple of them.
1961 Dr. Summerbell, the Chief Medical 2 mycologist for the Ontario Administrative Health, was the 3 one, I believe, that invi -- advised you that the type of 4 mould found in the apartment was the type that leads to 5 lethal disease in infants. 6 MR. GREGORY MACLELLAN: Yes, it was his 7 office that conducted the tests on the samples we took. 8 MS. ALISON CRAIG: Right. And if we 9 could go briefly to the overview report, page 38, 10 paragraph 97. This is the report you received on 11 February 21st from Dr. Summerbell, and under the analysis 12 section at the bottom there, it says midway through: 13 "The principle presenting symptom 14 manifested by the affected infant was 15 massive pulmonary hemorrhage." 16 And then towards the end, and I'm not 17 going to attempt to pronounce some of these, which is why 18 I'm sort of selectively reading here, but: 19 "This condition has been known for 20 several decades and has a variety of 21 potential manifestations, usually 22 consisting of transient influenza-like 23 symptoms." 24 And then the sentence I'm most interested 25 in, the last one:
1971 "This toxin has no known signs evident 2 in pathological examination." 3 So, first he says, the principle symptoms 4 from exposure to this are flu-like symptoms, is that 5 fair? 6 MR. GREGORY MACLELLAN: Yes. 7 MS. ALISON CRAIG: Which we -- and know 8 reports, at least, indicated Joshua had been exhibiting, 9 correct? 10 MR. GREGORY MACLELLAN: Yes. 11 MS. ALISON CRAIG: And Dr. Smith did, at 12 some point, acknowledge that there was pulmonary 13 hemorrhage present in Joshua, correct? 14 MR. GREGORY MACLELLAN: I'd have to look 15 at it again to say how he described them. 16 MS. ALISON CRAIG: Okay, that's fair 17 enough. Did you ever discuss with Dr. Smith, Dr. 18 Summerbell's contention at the end that -- that this 19 particular toxin exposure has no known signs evident in 20 pathological examination? 21 MR. GREGORY MACLELLAN: I'm not sure if I 22 -- I discussed his exact phrasing of that word. I -- I 23 urged Dr. Smith to talk to Dr. Summerbell, so that -- I - 24 - I felt a better flow of information would occur. 25 But I believe it was one (1) of the other
1981 doctors -- I'm not sure if it was a Dr. Miller or 2 Dearborn -- that later talked about how the toxin 3 produced by the mould can't be tested for. They didn't 4 believe there was a good test of blood to determine 5 whether it was present or not. 6 MS. ALISON CRAIG: Right. And while 7 we're on that, I'm a little unclear, do you know if Dr. 8 Smith ever did talk to Dr. Summerbell? It may just be me 9 that's not -- 10 MR. GREGORY MACLELLAN: I don't know. 11 MS. ALISON CRAIG: You don't know, okay. 12 And no known -- no pathological symptoms -- indeed it was 13 Dr. -- Dr. Smith based his rejection of the mould theory 14 on the fact that there were no known -- no pathological 15 symptoms, is that fair? 16 MR. GREGORY MACLELLAN: I believe he did 17 -- eventually, he looked at -- not -- not from Dr. 18 Summerbell's statement, because Dr. Summerbell is, I 19 believe, referring to stuff he's heard about. 20 It was the information we received from 21 Atlanta, from Dr. Dearborn, that talked about things to 22 look for to determine whether -- whether this is a case 23 involving death by mould, and it was those -- that 24 information, I think, Dr. Smith used to compare against 25 his examination --
1991 MS. ALISON CRAIG: Okay. 2 MR. GREGORY MACLELLAN: -- of Joshua. 3 MS. ALISON CRAIG: And you spoke to Dr. 4 Smith, we know, on the phone several times about this 5 issue. Is it fair to say, for the most part, he never 6 provided you with any particular scientific explanation 7 for rejecting this theory, at least until -- until the 8 last conversation? 9 MR. GREGORY MACLELLAN: It was -- it was 10 quite well along before he was talking in a way that made 11 me feel like he had actually investigated this, as 12 opposed to just casually dismissing it. 13 MS. ALISON CRAIG: And so I'm just trying 14 to understand here. We have experts from around the 15 world saying that the type of mould found in the home is 16 the type that could have caused death. We have Joshua 17 exhibiting flu-like symptoms, as were described. We have 18 experts saying that there would be no detectible 19 pathology symptoms present. 20 And despite all of these factors put 21 together, I'm just -- 22 MR. GREGORY MACLELLAN: Okay, I don't 23 accept the last comment there. 24 MS. ALISON CRAIG: Okay, okay, fair 25 enough. But despite all of these experts and all of
2001 these factors put together, it seems to me that it was, 2 in the end, Dr. Smith who you relied on in rejecting the 3 mould theory, that's fair? 4 MR. GREGORY MACLELLAN: Yes. 5 MS. ALISON CRAIG: And is it fair to say 6 that by the time you had -- you had arrested Joshua's 7 mother, you had not yet received anything in writing with 8 a scientific basis for rejecting the mould theory? 9 MR. GREGORY MACLELLAN: We hadn't 10 received a signed final report, that's true. 11 MS. ALISON CRAIG: Okay. Thank you, 12 Commissioner. I think those are my questions. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 14 Craig. 15 Mr. Wardle...? 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER STEPHEN GOUDGE: Why don't 20 we go for about ten (10) minutes and then if you can find 21 a place to break we'll -- 22 MR. PETER WARDLE: Okay, sir. 23 COMMISSIONER STEPHEN GOUDGE: Is that 24 okay? Ten (10) or fifteen (15) minutes, whatever? 25
2011 CROSS-EXAMINATION BY MR. PETER WARDLE: 2 MR. PETER WARDLE: That's fine. Sergeant 3 MacLellan, I won't have any questions for you. 4 Inspector Begbie, I think you probably 5 know who I am. I'm Peter Wardle and I act for, among 6 others, Louise Reynolds. 7 Inspector Begbie, I want to look at three 8 (3) time periods; I want to look at the beginning of your 9 investigation. I want to look briefly at the preliminary 10 inquiry, and then I want to look at the end, okay? 11 MR. BRIAN BEGBIE: Okay. 12 MR. PETER WARDLE: So let's just start 13 right at the beginning, and you interviewed Louise on the 14 morning of June the 13th, 1997 at around 9 o'clock in the 15 morning, do you recall that? 16 MR. BRIAN BEGBIE: Is that the one (1) 17 that was the written statement or was that the one (1) on 18 video, sir? 19 MR. PETER WARDLE: That's the video. 20 MR. BRIAN BEGBIE: Oh. 21 MR. PETER WARDLE: That's the first 22 videoed statement. 23 MR. BRIAN BEGBIE: Okay, yes. 24 MR. PETER WARDLE: And that's the -- the 25 accusatory statement, if I can put it that way; she was
2021 cautioned. 2 MR. BRIAN BEGBIE: Sure. 3 MR. PETER WARDLE: All right. And what 4 you told us this morning was that you had conflicting 5 information, at that point in time, and you decided to 6 read her her rights, do you recall that? 7 MR. BRIAN BEGBIE: Yes. 8 MR. PETER WARDLE: And is it fair to say 9 at that point, based on what the police had seen, that 10 they thought this case was a homicide? 11 MR. BRIAN BEGBIE: Fair. 12 MR. PETER WARDLE: That was the operative 13 theory at that point in time. 14 MR. BRIAN BEGBIE: ThatĘs fair. 15 MR. PETER WARDLE: Okay. And the 16 conflicts in evidence that you spoke about briefly this 17 morning, I just want to unpack them a little bit if I 18 might. 19 MR. BRIAN BEGBIE: Okay. 20 MR. PETER WARDLE: First of all, there 21 was a boyfriend and you haven't said anything about the 22 boyfriend but there was a boyfriend sleeping on the couch 23 that evening, right? 24 MR. BRIAN BEGBIE: There was. 25 MR. PETER WARDLE: And that boyfriend,
2031 who I think here we're calling "Gord," as I understand it 2 is now serving time with Her Majesty, correct? 3 MR. BRIAN BEGBIE: Correct. 4 MR. PETER WARDLE: As a result of an 5 earlier murder which your Force was unaware of at the 6 time of this investigation, correct? 7 MR. BRIAN BEGBIE: That every Force was 8 unaware of, correct. 9 MR. PETER WARDLE: And I -- this Force, 10 every Force, no one was aware that this gentleman 11 actually had killed someone, a stabbing, some years 12 earlier in Newfoundland, if I recall correctly? 13 MR. BRIAN BEGBIE: Correct. 14 MR. PETER WARDLE: And he was on the 15 couch at the time you thought the little girl had died 16 that evening, right? He was on the couch in the living 17 room, supposedly asleep? 18 MR. BRIAN BEGBIE: Correct. 19 MR. PETER WARDLE: Okay. And his version 20 and Louise's version about when they had last been 21 together with Sharon were very different, correct? 22 Sorry -- 23 MR. BRIAN BEGBIE: Their versions for 24 each other? 25 MR. PETER WARDLE: No, their versions
2041 about when they had last seen Sharon -- 2 MR. BRIAN BEGBIE: Yes, correct. 3 MR. PETER WARDLE: -- were quite 4 different. 5 MR. BRIAN BEGBIE: Correct. 6 MR. PETER WARDLE: So when you 7 interviewed the two (2) of them, almost immediately you 8 got these different versions, correct? 9 MR. BRIAN BEGBIE: That is correct. 10 MR. PETER WARDLE: And isn't it also fair 11 to say that almost immediately two (2) neighbours came 12 forward, a man and a woman who lived together, who said 13 that they had seen Louise coming back to the house with 14 Sharon at a particular time in the evening, correct? 15 MR. BRIAN BEGBIE: Correct. The -- the 16 order is opposite, the two (2) come forward first before 17 we got that from Gord, but... 18 MR. PETER WARDLE: That -- that's fair 19 enough. I'm not -- 20 MR. BRIAN BEGBIE: Yes. Okay. 21 MR. PETER WARDLE: -- really interested 22 in that. But you had these neighbours come forward and 23 they said that they had seen Louise with Sharon coming 24 back to the house at a particular time, and that was 25 different than what she told you in her written
2051 statement, correct? 2 MR. BRIAN BEGBIE: That's correct. 3 MR. PETER WARDLE: And those issues 4 raised alarm bells for you and the people on your team, 5 is that fair? 6 MR. BRIAN BEGBIE: ThatĘs fair. 7 MR. PETER WARDLE: Okay. And am I right 8 that at the time you first interviewed her, to the extent 9 that anyone was a suspect at that point, she was your 10 primary suspect. 11 Is that fair? 12 MR. BRIAN BEGBIE: We had the two (2) -- 13 two (2), what I thought were fairly critical differences 14 there that we wanted to attack or -- or go at or explore, 15 but she was -- the rest we were just taking a statement 16 from at that point. We didn't have anything of a similar 17 nature to go at anybody else at that early juncture, so. 18 MR. PETER WARDLE: And in fact when I 19 look at the statements you took from some of the other 20 people -- for example, Gary and Gordon -- those weren't 21 caution statements? You never got to that point with 22 those gentlemen, correct? 23 MR. BRIAN BEGBIE: No, eventually there 24 were some KGB statements taken, some sworn statements 25 taken --
2061 MR. PETER WARDLE: Right. 2 MR. BRIAN BEGBIE: -- but not in an 3 accusatory -- no, correct. 4 MR. PETER WARDLE: Okay. And then as I 5 understand it, the very day you were having this first 6 accusatory interview with Louise, the autopsy is starting 7 to happen in Toronto, correct? The body is being taken 8 down to Toronto with Constable Goodfellow? 9 MR. BRIAN BEGBIE: Correct. 10 MR. PETER WARDLE: And it takes place 11 June 13th and June 15th and you get some results, almost 12 immediately, through Constable Goodfellow, correct? 13 MR. BRIAN BEGBIE: Through -- I -- I 14 actually got it through Sergeant Bird, but ultimately, 15 yes, you're correct, they -- they come through Constable 16 Goodfellow. 17 MR. PETER WARDLE: And I'm going to 18 suggest to you that there's three (3) very important 19 things you learn from what's going on at the autopsy. 20 The first is that Dr. Smith says, This girl died of 21 multiple stab wounds, correct? 22 MR. BRIAN BEGBIE: That's important. 23 MR. PETER WARDLE: And that confirmed the 24 police working hypothesis, correct? 25 MR. BRIAN BEGBIE: Correct.
2071 MR. PETER WARDLE: Second, that the 2 weapon might be scissors, correct? 3 MR. BRIAN BEGBIE: I'm not certain when 4 the information about the bifurcated wounds come, whether 5 it come on the 17th or maybe within a few days of -- of 6 then, but it certainly -- it -- it came fairly early on. 7 MR. PETER WARDLE: Either at the autopsy 8 or within a couple of days after the autopsy -- 9 MR. BRIAN BEGBIE: Soon. 10 MR. PETER WARDLE: -- you learn that Dr. 11 Smith thought that a pair of scissors might have been the 12 murder weapon, right? 13 MR. BRIAN BEGBIE: Or responsible for at 14 least a few of the injuries, yes. 15 MR. PETER WARDLE: Right. And so that 16 led the police to look at various objects they had seized 17 in the house, correct? 18 MR. BRIAN BEGBIE: Correct. 19 MR. PETER WARDLE: And thirdly, Dr. 20 Smith, I suggest, was definitive that there had been a 21 scalping and he found head lice on the scalp, correct? 22 MR. BRIAN BEGBIE: Yes. 23 MR. PETER WARDLE: And that immediately 24 led the police to think about why someone would scalp 25 this poor little girl, correct?
2081 MR. BRIAN BEGBIE: We've certainly got to 2 understand why, yes. 3 MR. PETER WARDLE: All right. And over 4 time, you began to gather information about the fact that 5 Sharon had head lice, that Louise wasn't very happy about 6 that, that she'd been away from school, and that all 7 eventually fed into what became an important part in the 8 police motive for this case, correct? 9 MR. BRIAN BEGBIE: Correct. 10 MR. PETER WARDLE: And all of that 11 information -- 12 MR. BRIAN BEGBIE: Part of it. I would 13 say part of it. It's -- 14 MR. PETER WARDLE: Part of it, not all of 15 it to -- 16 MR. BRIAN BEGBIE: That's correct 17 MR. PETER WARDLE: -- be fair. But all 18 of this information I've just come -- I've just gone 19 through with you: the stabbing, scissors, the scalping, 20 and the head lice, all came from information you were 21 provided directly or indirectly through Dr. Charles 22 Smith, correct? 23 MR. BRIAN BEGBIE: Correct. 24 MR. PETER WARDLE: Okay. And then as I 25 understand it, and My Friend took you through this, and
2091 I'm not going to go through it in detail, but in the 2 period between June the 16th, and the 18th, you begin to 3 give in -- get information from a variety of sources 4 about the pit bull, Hat Trick, correct? 5 MR. BRIAN BEGBIE: Correct. 6 MR. PETER WARDLE: And you told us this 7 morning that that information was very alarming, correct? 8 MR. BRIAN BEGBIE: Correct. 9 MR. PETER WARDLE: And what I heard this 10 morning, and I want to confirm it with you, is that 11 Constable Goodfellow spoke to Dr. Smith on the 17th about 12 certain of the marks, correct? 13 MR. BRIAN BEGBIE: Correct. 14 MR. PETER WARDLE: And relayed what he 15 had been told by Dr. Smith back to the team? 16 MR. BRIAN BEGBIE: Correct. 17 MR. PETER WARDLE: And that's something 18 you would have relied on, at that time, in the way in 19 which you pursued the investigation, correct? 20 MR. BRIAN BEGBIE: I pursued that avenue 21 of the investigation, because also during that critical 22 time we're also looking at Gord, that you mentioned; 23 we're also looking at a fellow named Randy, that you 24 mentioned, we're also looking at a fellow named Gary, 25 that you mentioned; and now the dog is factored into it,
2101 so it wasn't going down, you know, one (1) path. It was 2 kind of multi-faceted at that point. We didn't know 3 where it was going. 4 MR. PETER WARDLE: No, I understand that. 5 But if we can just turn up -- and let me see if I can 6 find it quickly, the information that's relayed by 7 Constable Goodfellow. And it's in paragraph 74 of the 8 overview report, and -- and I can just put it to you, 9 sir. I'm sure you remember it. 10 MR. BRIAN BEGBIE: Okay. 11 MR. PETER WARDLE: His recording of the 12 conversation is: 13 "We have concerns about upper back 14 marks. 15 A: Not domestic or wild animal in any 16 way." 17 And I suggest to you that Dr. Smith 18 couldn't have been more definitive, correct? 19 MR. BRIAN BEGBIE: That's definitive. 20 MR. PETER WARDLE: And that's a factor 21 that would have been important to you and your team in 22 figuring out where to go next in this very complex 23 investigation, correct? 24 MR. BRIAN BEGBIE: It -- it factored in, 25 yes.
2111 MR. PETER WARDLE: All right. And -- 2 MR. BRIAN BEGBIE: But if I may -- if I 3 may add, it -- it didn't absolutely shut that door to the 4 dog either for us, because within a month we're actually 5 eliciting the help of Dr. Gary Landsburg on our own, 6 because things just aren't meshing, and on the 17th we 7 get the -- the hair and feces, and we get the -- 8 MR. PETER WARDLE: Right. 9 MR. BRIAN BEGBIE: -- so we're -- we're 10 still exploring that. Even though they've shut us down 11 and basically said it's not, we're still going there. 12 MR. PETER WARDLE: You get other 13 information about the dog between the 16th and the 18th, 14 correct? 15 MR. BRIAN BEGBIE: Correct. 16 MR. PETER WARDLE: And you have a meeting 17 with Dr. Bechard present, the Regional Coroner, on the 18 17th, correct? 19 MR. BRIAN BEGBIE: Yes. 20 MR. PETER WARDLE: And I took it from 21 what you said this morning that Dr. Bechard didn't think 22 much of the idea that a dog was responsible for the 23 death, correct? 24 MR. BRIAN BEGBIE: That's fair, yes. 25 MR. PETER WARDLE: All right. Now, you
2121 may not have turned your mind to this, but the 2 information you collected during that week that set out, 3 you know, through -- through Gord, through Gary, through 4 Gary's brother, Kenny, I think is the -- was his name -- 5 MR. BRIAN BEGBIE: Mm-hm. 6 MR. PETER WARDLE: -- are you confident 7 that that information was relayed back to Dr. Smith? 8 MR. BRIAN BEGBIE: Which information? 9 With regards to the dog? 10 MR. PETER WARDLE: The information you'd 11 obtained, regarding the dog. 12 MR. BRIAN BEGBIE: All I can say is, I 13 didn't, but I didn't have contact with Dr. Smith. I 14 understood that the Regional Coroner was -- was doing 15 that, but -- 16 MR. PETER WARDLE: Did you relay that 17 information to the Regional Coroner? 18 MR. BRIAN BEGBIE: Yes. 19 MR. PETER WARDLE: And did you understand 20 that he was in communication with Dr. Smith? 21 MR. BRIAN BEGBIE: Yes. 22 MR. PETER WARDLE: All right. And did 23 you assume from that, that Dr. Smith got that 24 information? 25 MR. BRIAN BEGBIE: Yes.
2131 MR. PETER WARDLE: Okay. And did you 2 ever hear from Dr. Smith, for example, where it -- when 3 he came down for the preliminary inquiry, that the police 4 hadn't given him information? Did he ever say that to 5 you? 6 MR. BRIAN BEGBIE: Not to me, no. 7 MR. PETER WARDLE: Okay. 8 9 (BRIEF PAUSE) 10 11 MR. PETER WARDLE: Now at some point, as 12 I understand it, you were confident that you could rule 13 out the dog as the cause of death, at least in this early 14 stage of the investigation before Louise was charged, 15 correct? 16 MR. BRIAN BEGBIE: Well, we had Dr. Smith 17 unequivocally saying it's not. We had the Regional 18 Coroner saying it's not. And I'm trying to take my mind 19 back to when we actually illicit -- or got the assistance 20 of Dr. Wood, but that would have been in the end of '97 I 21 guess, going into '98, so that's fair. 22 MR. PETER WARDLE: Okay. Certainly by 23 the time you charged Louise with murder, which was on the 24 26th of June, you must have been able to rule that out as 25 the cause of death, correct?
2141 MR. BRIAN BEGBIE: Yes. Yes, we felt 2 that -- yes. 3 MR. PETER WARDLE: All right. And that 4 would have been based on the information you had from the 5 Coroner's Office, Dr. Bechard, and primarily Dr. Smith, 6 correct? 7 MR. BRIAN BEGBIE: Correct. 8 MR. PETER WARDLE: Okay. Now lets go 9 forward a little bit in time to the preliminary inquiry. 10 And... 11 COMMISSIONER STEPHEN GOUDGE: Do you want 12 to pause there, Mr. Wardle? Is that -- 13 MR. PETER WARDLE: That's a perfect time 14 to pause, sir. I'm sorry, I got a little carried away 15 with my flow. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 We'll come back in 15 minutes and Ms. Arbuck, I think, 18 may canvas the remainder of you to see how the times are 19 doing. 20 21 --- Upon recessing at 3:25 p.m. 22 --- Upon resuming at 3:41 p.m. 23 24 THE REGISTRAR: All rise. Please be 25 seated.
2151 COMMISSIONER STEPHEN GOUDGE: Okay, Mr. 2 Wardle, my sense of it is you have about thirty (30) 3 minutes more, is that about right? 4 MR. PETER WARDLE: That's correct. 5 6 CONTINUED BY MR. PETER WARDLE: 7 MR. PETER WARDLE: So, Inspector Begbie, 8 just before we go on, I wanted to look quickly at one (1) 9 document. It's in your binder at Tab 2, and it's called 10 "The Synopsis". 11 And this would have been a synopsis 12 prepared by the team for disclosure purposes at some 13 point. 14 MR. BRIAN BEGBIE: I believe it was 15 actually prepared by Sergeant Bird, but -- he was the 16 officer in charge of the case. I'm -- I'm certain that 17 he prepared it, but -- 18 MR. PETER WARDLE: All right. 19 MR. BRIAN BEGBIE: -- I've seen the 20 document. 21 MR. PETER WARDLE: And just looking at it 22 quickly, and I'm not going to take you through all of it, 23 but I notice at -- first of all, at page 6 of the 24 document, you'll see it says -- and this is dealing with 25 various steps in the investigation interviews.
2161 In the middle of the page: 2 "Guarding against tunnel vision, the 3 police commenced an intensive area of 4 canvass and witness interviewing 5 blitz." 6 And then over to the next page: 7 "As a result of the post-mortem 8 examination..." 9 And this is about a third of the way down. 10 "...it was learned that the deceased, 11 Sharon XXXX, had died as the result of 12 severe blood loss secondary to multiple 13 stab wounds, head, neck, upper body 14 area, a large part of her scalp had 15 been removed. There was evidence of 16 head lice infestation. 17 Weapon: Probably one (1) of knives or 18 pair of scissors seized at scene. It 19 was subsequently learned, also, that 20 there was no evidence to indicate that 21 a sexual assault had taken place." 22 And again, that's information that would 23 have been relayed to you as a result of the post-mortem 24 examination done by Dr. Smith, correct? 25 MR. BRIAN BEGBIE: That's correct.
2171 MR. PETER WARDLE: And then, just going 2 over the page, you had, at this point, engaged -- is it 3 Sergeant Van Allen from the OPP -- 4 MR. BRIAN BEGBIE: Correct. 5 MR. PETER WARDLE: -- who had done a 6 review of certain of the statements of Ms. Reynolds? 7 MR. BRIAN BEGBIE: Correct. 8 MR. PETER WARDLE: And he'd given you an 9 opinion, and you'll see at page 8 in the middle 10 paragraph, is that the result of Sergeant Van Allen's 11 analysis? 12 MR. BRIAN BEGBIE: Yes. 13 MR. PETER WARDLE: Okay. And I'll -- 14 I'll just read it quickly: 15 "These circumstances include limited 16 access to the child by others being 17 killed in her home; the random sloppy 18 and tightly clustered nature of the 19 crime scene; the spontaneous nature of 20 the crime consistent with an outburst 21 of temper; the depersonalization of the 22 body by scalping; the body being left 23 at the crime scene; the exclusion of 24 other probable motives; the use of a 25 weapon of opportunity that was located
2181 in the house." 2 And just stopping there. You were never 3 able to find a single knife, or pair of scissors, or some 4 other instrument that could be identified with some 5 certainty as the murder weapon, were you? 6 MR. BRIAN BEGBIE: No. 7 MR. PETER WARDLE: Okay. And the -- and 8 then just finishing the sentence: 9 "...the personality characteristics of 10 Louise Reynolds and the nature of her 11 relationship with the victim." 12 And then going over the page, you'll see 13 the reference to the two (2) -- 14 MR. BRIAN BEGBIE: Just if I can -- 15 sorry, to interrupt, Mr. Wardle, the -- 16 MR. PETER WARDLE: Yes? 17 MR. BRIAN BEGBIE: Just so you know that 18 that -- those are the criteria that he -- how he reached 19 his decision or his -- his opinion. Those are the -- 20 that's the criteria he used and that's what he based it 21 on that -- 22 MR. PETER WARDLE: Correct, and I'm -- 23 and I'm -- there is reference to his report in the 24 overview report. 25 MR. BRIAN BEGBIE: Okay.
2191 MR. PETER WARDLE: Going over the page, 2 then, you'll see reference in the first third of the page 3 to those two (2) independent witnesses we talked about 4 just before the break. 5 MR. BRIAN BEGBIE: Yes. 6 MR. PETER WARDLE: And am I right, just 7 looking at that and without going into the details, that 8 from the evidence of these two (2) people, Ms. Cope and 9 Mr. Trenchard, the police theory was that the crime had 10 occurred between 8:20 p.m. and 8:45 p.m.? 11 In other words, in a fairly narrow time 12 period, correct? 13 MR. BRIAN BEGBIE: I think it went -- 14 yeah, whatever -- that -- that would be accurate. I was 15 going to say 9 o'clock, but I think it is closer to a 16 quarter to or ten (10) to, so that's -- that's accurate. 17 MR. PETER WARDLE: All right. So on the 18 police theory, first of all, Ms. Reynolds would have had 19 to commit the killing. She would have had to dispose of 20 the murder weapon in some fashion. And she would have 21 had to change her clothes so that on 8:45 p.m., she could 22 be seen by an observer on her front step, right? 23 MR. BRIAN BEGBIE: Well, as far to 24 getting rid of any potential murder weapon, the police 25 weren't called and didn't get to the scene until 9:30, so
2201 when they went out and did their -- their search that was 2 taking place in the neighbourhood, some of what you just 3 said could have occurred then, hypothetically. 4 But yes, for time frame what you're 5 talking about is correct. She's on the step. 6 MR. PETER WARDLE: And just -- I'll note 7 parenthetically that there was no blood found on Ms. 8 Reynolds, and there was no blood found on the clothes 9 that she turned over to your officers, correct? 10 MR. BRIAN BEGBIE: There was no blood 11 found on her. I'd have to double check on the clothes. 12 If I may just have a moment? 13 MR. PETER WARDLE: Sure. 14 15 (BRIEF PAUSE) 16 17 MR. BRIAN BEGBIE: I'm just checking some 18 of the results against what we seized. 19 MR. PETER WARDLE: Just help us with the 20 document you're looking at, just so -- 21 MR. BRIAN BEGBIE: Just -- I'm looking at 22 the CFS submission sheets under Tab 32. 23 MR. PETER WARDLE: That's PFP089799, 24 November 2000, and it's Tab 32 of your binder. 25
2211 (BRIEF PAUSE) 2 3 MR. BRIAN BEGBIE: So I have on the 4 report May 27th of '98. On B13(1), it says, "blood stain 5 from the shorts of Louise Reynolds." So I just got to 6 follow that up here. 7 8 (BRIEF PAUSE) 9 10 MR. BRIAN BEGBIE: There was blood found 11 on the shorts, and it's -- the conclusions are on 12 PFP089814-3. It's right at the top five (5), and it 13 talks about from at least two (2) sources. 14 One (1) matches the DNA profile of Gary 15 Lee. 16 MR. PETER WARDLE: Right. 17 MR. BRIAN BEGBIE: And the other is -- 18 matches no other profile in this case. 19 MR. PETER WARDLE: So there was no blood 20 on the shorts that matched the deceased? 21 MR. BRIAN BEGBIE: That's correct, yes. 22 MR. PETER WARDLE: Okay. So just 23 finishing the chronology in this synopsis, just going 24 over to page 11, there's a reference to the motive, and I 25 just wanted to note again that there's a number of things
2221 described there, but one of them is Louise's pent-up 2 frustration over Sharon's head lice problem. 3 Sorry, I may be flipping documents too 4 quickly. 5 MR. BRIAN BEGBIE: No that's okay. No, 6 that's fine. And what page is that, sir? 7 MR. PETER WARDLE: And back to the 8 synopsis at -- at page 11. 9 MR. BRIAN BEGBIE: Okay, thank you. 10 MR. PETER WARDLE: So there's the 11 reference to motive in the synopsis and the reference to 12 the head lice problem and that's again, the subject we 13 were discussing just before the break? 14 MR. BRIAN BEGBIE: One (1) of the -- a 15 couple things they talk about; her violent temper as 16 well. 17 MR. PETER WARDLE: Right. 18 MR. BRIAN BEGBIE: Yes. 19 MR. PETER WARDLE: Okay. Now let's just 20 go on then if we can, to the preliminary inquiry. And I 21 don't want to take you through this in any detail. 22 You said earlier to My Friend that Dr. 23 Smith was a strong dominating witness, correct. 24 MR. BRIAN BEGBIE: That was what -- I did 25 not actually hear him. I've only read the transcripts,
2231 and what I got back was he -- was very strong on the 2 stand. 3 MR. PETER WARDLE: Somewhat I'm 4 interested in is how it reflected back to your team, and 5 that's what you heard from whoever was there? Would it 6 have been Sergeant Bird? 7 MR. BRIAN BEGBIE: Yeah, that was just a 8 conversation Sergeant Bird and I had actually at the 9 court. How did it go? Oh, he's a really good witness. 10 He's a really strong witness. It was nothing more and 11 nothing less than that. 12 MR. PETER WARDLE: Now, do you recall 13 that there were concerns -- maybe not concerns but the 14 police were aware that there were issues around -- around 15 the defence counsel that Ms. Reynolds had for the first 16 part of the preliminary inquiry? 17 MR. BRIAN BEGBIE: Yes. 18 MR. PETER WARDLE: And the police were 19 aware of those concerns as to his competence, correct? 20 MR. BRIAN BEGBIE: As to some of the 21 goings on, I'll say yes. 22 MR. PETER WARDLE: A number of goings on 23 some -- 24 MR. BRIAN BEGBIE: Mm-hm. 25 MR. PETER WARDLE: -- of which were
2241 bizarre, and we don't need to review them here, correct? 2 MR. BRIAN BEGBIE: Correct. 3 MR. PETER WARDLE: But one (1) of the 4 things that happened was that this defence counsel, and 5 I'm not even sure we need to get into who it was, but he 6 put the dog theory forward very vigorously at the 7 preliminary, correct? 8 MR. BRIAN BEGBIE: He did. 9 MR. PETER WARDLE: In fact, he threatened 10 to call evidence at the preliminary? 11 MR. BRIAN BEGBIE: Correct. 12 MR. PETER WARDLE: And that was from your 13 experience a very unusual move, correct? 14 MR. BRIAN BEGBIE: Yes. 15 MR. PETER WARDLE: And you've read Dr. 16 Smith's evidence at the preliminary, right? 17 MR. BRIAN BEGBIE: Yes, sometime ago but 18 yes, I have read it. 19 MR. PETER WARDLE: And you'll recall that 20 the dog theory was put out to him in some detail? 21 MR. BRIAN BEGBIE: Yes. 22 MR. PETER WARDLE: And he knocked it down 23 pretty definitively, correct? 24 MR. BRIAN BEGBIE: Correct. 25 MR. PETER WARDLE: Is it fair to say that
2251 at that time the dog theory was actually the subject of 2 ridicule by the Crown and the police? You weren't taking 3 it seriously because of the way it had been brought up 4 and the person who was bringing it up? 5 MR. BRIAN BEGBIE: Well, I wouldn't say 6 ridicule. It was certainly a topic of conversation, and 7 I would throw it to other defence counsel in that as 8 well. One that became her eventual counsel had some very 9 marked words towards that defence, to myself. 10 MR. PETER WARDLE: Right. But -- 11 MR. BRIAN BEGBIE: So yeah. It was a 12 topic of conversation, that's for sure. 13 MR. PETER WARDLE: All right. And we're 14 not going to get into this in any detail but both you and 15 the Crown, Ed Bradley, both talked about your concerns 16 about disclosure of defence reports later in the case. 17 Is it fair to say that certainly at the 18 time of the preliminary, the dog theory had been largely 19 discredited by Dr. Smith in his evidence? 20 MR. BRIAN BEGBIE: At the time of the 21 preliminary... 22 MR. PETER WARDLE: At the time of the 23 preliminary, the dog theory had been largely discredited 24 by Dr. Smith in his evidence? 25 MR. BRIAN BEGBIE: Yes.
2261 MR. PETER WARDLE: So let's go to the 2 later period, and I'm not going to cover this in any 3 detail, but I wanted to start with one (1) of the letters 4 from Chief Closs, and this is in the overview report at 5 paragraph 336. It's page 157 of the document. 6 MR. BRIAN BEGBIE: I have that. 7 MR. PETER WARDLE: And My Friend, Mr. 8 Sandler, took you to this letter, and I think you 9 indicated you're -- you're familiar with it now. 10 You may not have been familiar with it at 11 the time, right? 12 MR. BRIAN BEGBIE: I am, yes. 13 MR. PETER WARDLE: Okay. And he took you 14 to the last paragraph of the letter as quoted here on the 15 page that we're looking at on our screen just before 16 heading "C". 17 I want to go back one (1) paragraph and I 18 just want to take you to an analogy that the Chief used. 19 And this is what he said: 20 "Building a case is much like building 21 a wall, brick by brick. Evidence is 22 compiled until it can be ascertained 23 that the case will withstand battery by 24 defence counsel." 25 Now, do you agree that that's a correct
2271 analogy for the building of a case? 2 MR. BRIAN BEGBIE: Brick by bick? Sorry, 3 brick by brick, piece by piece, yes. 4 MR. PETER WARDLE: And your team, at this 5 point, had done a lot of work in assembling this very 6 complex murder investigation, correct? 7 MR. BRIAN BEGBIE: There had been a lot 8 of work done, yes. 9 MR. PETER WARDLE: There'd been a huge 10 number of statements taken? 11 MR BRIAN BEGBIE: Mm-hm. 12 MR. PETER WARDLE: A lot of people 13 working long hours, right? 14 MR. BRIAN BEGBIE: Correct. 15 MR. PETER WARDLE: This was a case with 16 high profile in the community, correct? 17 MR. BRIAN BEGBIE: Very, yes. 18 MR. PETER WARDLE: You had a mother in 19 custody, right? 20 MR. BRIAN BEGBIE: Correct. 21 MR. PETER WARDLE: You had people 22 picketing the Children's Aid Society, correct? 23 MR. BRIAN BEGBIE: That's correct. 24 MR. PETER WARDLE: You had death threats 25 against the mother, right? Do you recall that?
2281 MR. BRIAN BEGBIE: I don't. I'm not 2 saying it didn't occur. I just -- it eludes me right 3 now. 4 MR. PETER WARDLE: Okay. And so now a 5 series of events start to happen and I want to deal with 6 them, sort of, very quickly. There's the -- first of all 7 there's the cast. You discover -- your Force discovers 8 that the cast is missing, correct? 9 MR. BRIAN BEGBIE: Correct. 10 MR. PETER WARDLE: And am I right that 11 around the same time you became aware that there had been 12 a meeting of some of the doctors involved in the case in 13 Toronto, do you recall that? 14 MR. BRIAN BEGBIE: There was a lot of 15 meetings in this case. Have you got a specific date I 16 can -- I can check? 17 MR. PETER WARDLE: I don't. If I did, I 18 would put it to you. This would be sometime before the 19 exhumation, but after the preliminary inquiry, and I 20 don't know whether an office from your Force was present 21 or not. 22 MR. BRIAN BEGBIE: That doesn't help me, 23 unfortunately. I'm -- I'm not saying it didn't take 24 place; it may well have. 25 MR. PETER WARDLE: Okay.
2291 MR. BRIAN BEGBIE: I just -- it doesn't -- 2 MR. PETER WARDLE: So the cast is lost. 3 You've told us about the reasons for the exhumation. The 4 exhumation takes place, and it's clear as result of the 5 exhumation that there are marks on the bones which come 6 from a dog's teeth, correct? 7 MR. BRIAN BEGBIE: That's the opinion, 8 yes. 9 MR. PETER WARDLE: And what you said was 10 that it forced you, and I think you meant the collective 11 you or we, to re -- to analyse and reassess now that you 12 knew that the dog was on the scene, correct? 13 MR. BRIAN BEGBIE: Correct. 14 MR. PETER WARDLE: Okay. Did the police, 15 at this point, after the exhumation, but before the 16 events a little later, give serious consideration to 17 whether, in fact, there had been a homicide at all? 18 MR. BRIAN BEGBIE: We were -- based on 19 the other evidence we have, the -- some of the cleanup 20 that took place, some of the confessions -- based on that 21 evidence that we had, that's why we continued on with 22 what -- what tho -- the -- the tact we took, so we felt - 23 - still felt strongly. 24 And we realized the pathology evidence had 25 changed, but we still felt strongly with that in the eyes
2301 of that other evidence that, you know, we may not have 2 the sequence right of what took place downstairs, but we 3 felt we had the right individual. 4 MR. PETER WARDLE: So let me just repeat 5 -- repeat my question. Did the police at this point, 6 after the exhumation, give serious consideration to 7 whether this was a homicide at all? 8 MR. BRIAN BEGBIE: I would say that in 9 the November meeting, yes, that we went around -- we 10 didn't doubt that it still was. The pathology evidence 11 had changed, and maybe I didn't articulate that very 12 clear, but in the face of the other evidence that I just 13 talked about, the pathology evidence isn't what we 14 thought it was, but we still had this other evidence, so 15 we were still convinced that, in fact, yes, it was. 16 MR. PETER WARDLE: So now, as I 17 understand it, we have the involvement of a new face at 18 the table, and that is Crown Bradley, correct, and he 19 comes in in about March of 2000. 20 MR. BRIAN BEGBIE: Yeah, maybe February. 21 Yeah, right around that time, yes. 22 MR. PETER WARDLE: I think he said in his 23 evidence this week -- 24 MR. BRIAN BEGBIE: Did he? Okay. 25 MR. PETER WARDLE: -- February/March, to
2311 be -- 2 MR. BRIAN BEGBIE: Fine. 3 MR. PETER WARDLE: You -- your 4 recollection may be quite accurate. 5 MR. BRIAN BEGBIE: Okay, thank you. 6 MR. PETER WARDLE: And you said this to 7 us in response to a question from Mr. Sandler, that he 8 was not -- you didn't feel he was completely behind the 9 prosecution and that it felt like gloom and doom, and -- 10 and I appreciate you're being candid with us, sir; I'm 11 not being critical for your choice of language, but 12 that's what you said, right? 13 MR. BRIAN BEGBIE: Yes. 14 MR. PETER WARDLE: Okay. And is it fair 15 to say that as we start to go into 2000 that thinking 16 about Chief Closs' analogy, once you built a brick wall, 17 brick by brick, it's pretty hard to start taking it 18 apart, isn't it? 19 MR. BRIAN BEGBIE: The -- the way you've 20 just described it, I would -- I would look at it like a 21 puzzle -- that's the one I usually use -- is like a 22 jigsaw puzzle, and you know what, ideally you'd like 100 23 percent of all the pieces, and the more pieces you can 24 get, the clearer the picture is. 25 And I mean that's oversimplified, but
2321 that's kind of the way I approach things. So sometimes 2 the piece that you thought you had that fits there, it 3 doesn't fit there anymore, but you get through more 4 pieces that fit somewhere else and make the picture as 5 clear or clearer. 6 MR. PETER WARDLE: But when you get a 7 piece that doesn't fit, to use your analogy, you've got 8 to reassess your entire case, don't you? 9 MR. BRIAN BEGBIE: You have to put it 10 aside and continue on. Maybe you've missed something 11 somewhere else and that's the -- you know, the meetings 12 that you have, like the November or the -- the case 13 meetings, where you sit and go, Okay, what's the 14 significance now. 15 What -- what -- how the pathology changed 16 on us there; it forces you to -- it forces you to 17 reassess other evidence. Maybe the -- the fact it's 18 changed places a brand new significance on something else 19 that wasn't significant before. 20 MR. PETER WARDLE: So isn't that what 21 Crown Bradley was doing as a fresh set of eyes at the 22 table? I mean, if we look at the steps he took during 23 the year 2000, he was going back, testing some of these 24 links in the chain, talking to some of the critical 25 witnesses, making notes, trying to get information from
2331 the defence, and isn't all of that just trying to make 2 sure whether the puzzle fits this way or whether the case 3 needs to be reassessed? 4 MR. BRIAN BEGBIE: But the real complaint 5 I had wasn't that he was doing it, it was how he was 6 doing it; largely without us knowing or without the 7 other Crown attorney knowing, which just wasn't the way 8 we'd operated up to that point, and quite frankly isn't - 9 - not been my experience with, certainly Crown's out of 10 Kingston. We've been very, very fortunate. 11 MR. PETER WARDLE: All right. Now I 12 don't want to get into detail about Dr. Ferris, but you 13 made some comments to My Friend about Dr. Ferris' report, 14 and I think what you said is that Dr. Ferris didn't opine 15 on some of the marks on the bones. 16 MR. BRIAN BEGBIE: That's -- that's how I 17 understood that report, yes. 18 MR. PETER WARDLE: And just in fairness 19 to Dr. Ferris, if you'll look at the material, and I'm 20 not sure if My Friend, Mr. Sandler realized this when he 21 put these questions to you, both of Dr. Ferris' reports 22 were before the exhumation, so he wouldn't have seen the 23 bones at that point. He didn't do a new report after the 24 exhumation. 25 MR. BRIAN BEGBIE: Fair enough. Yeah.
2341 MR. PETER WARDLE: Okay. So just help me 2 with Dr. Symes, because My Friend took you to Dr. Symes 3 report, and he took you to Mr. Bradley's notes at 4 paragraph 314 of the overview report of an interview with 5 Dr. Symes. 6 And I think what My Friend put to you was, 7 you know, you'd started out with no dog; after the 8 exhumation there was clearly a dog there. As time went 9 on and you got more and more information it now appeared 10 that more and more of the injuries were caused by the 11 dog. Now you had this report and what was your theory 12 after receiving this information. 13 And you said, I -- and I hope I've got 14 this right -- that the theory of the police at the time 15 was that the dog and mother had been involved together 16 somehow, you weren't quite sure how. 17 Am I right about that? 18 MR. BRIAN BEGBIE: Basically, whether the 19 -- the mother was involved and the dog joined in, or 20 whether the dog come down and foraged later, that's -- 21 MR. PETER WARDLE: Right. 22 MR. BRIAN BEGBIE: -- we -- we weren't 23 able to tell that. 24 MR. PETER WARDLE: You agree with me 25 though that police officers have to accept the science.
2351 If they get unequivocal science, they do have to accept 2 it, right? 3 MR. BRIAN BEGBIE: Absolutely. 4 MR. PETER WARDLE: Dr. Symes wasn't a 5 defence expert, right? 6 MR. BRIAN BEGBIE: Correct. 7 MR. PETER WARDLE: Dr. Symes had been 8 retained by the Coroner's Office, right? 9 MR. BRIAN BEGBIE: Correct. 10 MR. PETER WARDLE: In fact, we heard 11 yesterday that he'd been retained at the suggestion of 12 Dr. Wood, who was one of the Crown experts, correct? 13 MR. BRIAN BEGBIE: Correct. 14 MR. PETER WARDLE: So the Kingston Police 15 Force should have had a lot of comfort that Dr. Symes was 16 the right guy, correct? 17 MR. BRIAN BEGBIE: Fair. 18 MR. PETER WARDLE: And when I look at 19 this note, and just thinking about these remaining marks 20 on the -- on the skull, if you look at page 136, at the 21 very bottom, and I'm not sure if Mr. Sandler read you -- 22 read this to you -- sorry, I've got the -- let me just 23 get the paragraph number, because my page numbers are 24 different. 25 It's paragraph 314 and it's the second
2361 page, so the next page of -- page 139, Mr. Registrar. 2 COMMISSIONER STEPHEN GOUDGE: Which 3 paragraph, Mr. Wardle? 4 MR. PETER WARDLE: It's the very bottom 5 of the page, Mr. Commissioner. 6 COMMISSIONER STEPHEN GOUDGE: "I also 7 asked him"? 8 9 CONTINUED BY MR. PETER WARDLE: 10 MR. PETER WARDLE: "I also asked him;" do 11 you see that, Inspector? 12 MR. BRIAN BEGBIE: I do. 13 MR. PETER WARDLE: So you'll see it says: 14 "I also asked him, are cuts consistent 15 with anybody intentionally or 16 accidentally removing the scalp? 17 And he said, no. Except for the one 18 (1) small area where there was a 19 scraping or shaving mark at the back of 20 the skull, all the other six (6) cuts 21 were what he would call straight 22 incision marks where the blade was 23 perpendicular to the bone's surface, so 24 therefore, not the type of mark that 25 you would expect where the instrument
2371 was sliding under the surface of the 2 scalp." 3 And I take it -- I'm not a pathologist, 4 you're not a pathologist, and you're not a forensic 5 anthropologist as this gentleman was -- but he seems to 6 be saying the direction of these marks, let alone the 7 fact that they're made by a sharp knife or a scalpel, the 8 direction of these marks are completely inconsistent with 9 the theory that there was a scalping. 10 MR. BRIAN BEGBIE: That was -- that was 11 the initial -- from the onset of the case there was a 12 scalping. The scalp come off somehow. Maybe the -- 13 maybe the dog is what's responsible, and that's -- some 14 of the defence experts have said with the -- the injuries 15 to the head is what's removed the -- the scalp but the 16 mother still could have inflicted injuries before. Not 17 one (1) defence expert, I stand to be corrected, has been 18 able to definitively say all of these wounds -- 19 MR. PETER WARDLE: Well, -- 20 MR. BRIAN BEGBIE: -- all of these wounds 21 were caused by a dog. 22 MR. PETER WARDLE: We can debate that 23 somewhere else. But the point -- 24 MR. BRIAN BEGBIE: Well, -- 25 MR. PETER WARDLE: -- I'm making to you,
2381 sir, is that the Crown's own expert is saying: These 2 remaining marks which were made with a -- either a 3 scalpel or a very sharp knife -- not a pair of scissors - 4 - not any of the instruments that have been seized from 5 the house, these are inconsistent with a scalping. 6 And I would have thought at that point 7 that the Kingston Police Department would start thinking 8 about taking down that wall. 9 MR. BRIAN BEGBIE: Well, the dog didn't 10 put the marks there, so what did? That's why we went 11 back to, the prudent thing to do was, Let's figure out 12 how those marks got there. 13 MR. PETER WARDLE: Well, maybe -- 14 MR. BRIAN BEGBIE: So that's what we did. 15 We went to Barry Blenkinsop. 16 MR. PETER WARDLE: It's not a secret to 17 you, sir, to know that today many people think that those 18 marks were made at the first autopsy and they're simply 19 artifacts. 20 MR. BRIAN BEGBIE: So what were they 21 cutting? There was no scalp there. There was nothing to 22 cut. 23 MR. PETER WARDLE: That's a matter we can 24 conjecture on. But you know -- you know that theory. 25 And I guess all I'm saying is, when the science changes
2391 and -- and the science in this case changed dramatically 2 from the beginning from where we were before the break; 3 when you had this case before the preliminary to after 4 the exhumation to after the problems with the cast to 5 after getting the defence reports. 6 Now you've got this expert who the Crown 7 has picked and says things that are, I would have 8 thought, pretty inconsistent with any reasonable theory. 9 MR. BRIAN BEGBIE: Who the coroner 10 picked, actually and the Crown agreed with it, -- 11 MR. PETER WARDLE: Right. 12 MR. BRIAN BEGBIE: -- correct? 13 MR. PETER WARDLE: Doesn't the -- isn't 14 the obligation of the police at that point to say, Okay, 15 we have a Crown attorney here. That's what the Crown is 16 for. They've made a decision to withdraw. That's a 17 sensible decision; we go along with that? 18 MR. BRIAN BEGBIE: But if you don't go 19 along with it? 20 MR. PETER WARDLE: Well, I hear you loud 21 and clear that you don't go along with it, sir. 22 MR. BRIAN BEGBIE: We -- wait -- wait -- 23 and -- and your opinion is, and that's fine. We -- I -- 24 I've already testified, we totally respect the fact that 25 the Crown's have that obligation, that -- that
2401 responsibility; that's -- that's their call. 2 But we are also talking; we haven't talked 3 here today about the other evidence that exists in this 4 case. That has to be factored in. You just can't turn a 5 blind eye to that. And that's -- 6 MR. PETER WARDLE: Well, let me -- let me 7 put this to you, sir, and then you won't find this a 8 surprise, but given what I read to you in the synopsis 9 about tunnel-vision, have you ever thought, sir, that 10 maybe your force was exercising tunnel-vision; that maybe 11 you got too invested in this case? 12 You built up that wall to a very large 13 height and when it became clear that it had to be taken 14 down, you weren't the ones that were going to do it. 15 And -- 16 MR. BRIAN BEGBIE: I -- 17 MR. PETER WARDLE: And you've been, with 18 respect, sir, crapping all over the people who actually 19 did, namely Mr. Bradley and the other Crowns who were 20 involved in that decision, isn't that right? 21 MR. BRIAN BEGBIE: I -- I take offence to 22 that. I think "crapping over" is not appropriate. We're 23 entitled to an opinion. We've expressed it like 24 everybody else and I've been pretty straightforward with 25 the -- my evidence, I believe, today and -- and answering
2411 the questions as best I can. 2 And -- and this, you know, to say "tunnel- 3 vision," we forget, or don't forget, the -- in the media 4 we've been quiet over a lot of this case. Other than 5 calling for a public inquiry, we haven't discussed the 6 evidence or the facts of the case. 7 And, in fact, it was the police that 8 brought the dog forward and pursued it in the face of 9 everyone saying it wasn't a dog in beginning. So I'm not 10 sure how you can equate that with tunnel-vision because 11 we wouldn't potentially even be here today had we not 12 done that. 13 I think we kept things very open. After 14 the case was withdrawn, the fellow that you talked about 15 on the couch, part of that arrest was precipitated by us. 16 We were the ones that set up that sting. We've been down 17 and interviewed him. We've done all kinds of follow-up 18 on this case. So to suggest tunnel vision is offensive. 19 MR. PETER WARDLE: All right. Well, the 20 -- the one thing I can't say about you, sir, is that your 21 -- that you don't express your views with candour. I 22 appreciate that. Thank you very much. 23 MR. BRIAN BEGBIE: Thank you. 24 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 25 Wardle.
2421 Ms. Greene...? 2 3 CROSS-EXAMINATION BY MS. MARA GREENE: 4 MS. MARA GREENE: Good afternoon. My 5 name is Mara Greene and I'm counsel for the Criminal 6 Lawyers Association, and I have very few questions and 7 they're just for you, Sergeant MacLellan. 8 And they relate to, by and large, the 9 issue of disclosure. 10 Now, my understanding from your testimony 11 earlier today is that early on in the investigation, 12 Crown counsel Mrs. Walsh or Ms. Walsh, advised you to get 13 any information from Dr. Smith in writing and her reason 14 for that was because she'd had a prior experience with 15 Dr. Smith where he testified differently from what he 16 told her orally; is that fair? 17 MR. GREGORY MACLELLAN: Yes. 18 MS. MARA GREENE: And this obviously 19 caused her some concern about the reliability of his 20 information orally, correct? 21 MR. GREGORY MACLELLAN: Yes. 22 MS. MARA GREENE: And did you take a note 23 of her -- of her information? Did you put that in your 24 notebook? 25 MR. GREGORY MACLELLAN: It may be there
2431 somewhere. 2 MS. MARA GREENE: No, did you put that in 3 your notebook when she told you that? When you are 4 investigating, you have a police notebook -- 5 MR. GREGORY MACLELLAN: Are you asking 6 about a certain day, a certain conversation? 7 MS. MARA GREENE: This conversation with 8 Ms. Walsh. Did you take notes of that conversation? 9 MR. GREGORY MACLELLAN: That was over a 10 period of time. I'm -- I'm sure there may be a couple of 11 notes. 12 MS. MARA GREENE: So when she told you 13 specifically of her prior bad experience with Dr. Smith, 14 you made a note of that? 15 MR. GREGORY MACLELLAN: I may not have 16 made a note every time. 17 MS. MARA GREENE: But at some point -- 18 MR. GREGORY MACLELLAN: But I think 19 there may be a couple of references to it -- 20 MS. MARA GREENE: In your notes? 21 MR. GREGORY MACLELLAN: -- in notes if we 22 go through all the notes but I'd be able to find them 23 but... 24 MS. MARA GREENE: Okay. Sorry, I don't 25 have all your notes so I'm just trying to get an
2441 understanding of whether or not that information was then 2 passed on to the defence. Are you -- do you know whether 3 or not it was passed on to the defence? 4 MR. GREGORY MACLELLAN: No, I don't know 5 that it was passed on to the defence. 6 MS. MARA GREENE: Okay. Do you agree 7 that would be important? 8 MR. GREGORY MACLELLAN: If it was in my 9 notes and -- and my notes would have been in the brief, 10 that was passed on to the defence. 11 MS. MARA GREENE: Right, and that's why I 12 asked if they were in your notes because I was quite 13 confident your notes would have gone to the police. 14 MR. GREGORY MACLELLAN: I -- I think 15 somewhere in there it's expressed about how we had to pin 16 him down in writing and -- and the gist of that comment 17 is expressed in my notes somewhere. If you ask me the 18 exact day and what did I write, we'd have to go searching 19 but... 20 MS. MARA GREENE: No, I guess what I'm 21 really trying to get at, from you, is whether or not that 22 information, to your knowledge, if it had been disclosed 23 to the defence. 24 MR. GREGORY MACLELLAN: If -- like I say, 25 the notes were disclosed to defence, any references to
2451 that in the notes would have been in part of that 2 disclosure. 3 MS. MARA GREENE: Okay. And you agree 4 that that would be important information for the defence 5 to have? 6 MR. GREGORY MACLELLAN: The opinion of -- 7 of the Crown Attorney on, you know, relying -- whether to 8 rely on the verbal statement of an expert or not, I'm not 9 -- I'm not sure that that's necessarily discloseable 10 but... 11 MS. MARA GREENE: Well, she didn't just 12 give you her opinion. What she gave you was a facts 13 scenario in a prior incident with him, correct? 14 MR. GREGORY MACLELLAN: It was still her 15 -- her opinion of it. I never read the transcripts from 16 that previous case. I certainly wasn't involved in that 17 previous case. I mean, I had a lot of respect for Sheila 18 Walsh. She didn't have to spell it out in a lot of 19 evidence for me and prove it for me, but I never asked 20 her to do that so I'm sort of taking her word for that. 21 MS. MARA GREENE: All right. And what 22 she had told you was that, in the past, she had received 23 oral information from him that was different from what he 24 had testified to, correct? 25 MR. GREGORY MACLELLAN: Yes, not phrased
2461 in the same way. 2 MS. MARA GREENE: Now, you also testified 3 that there had been a meeting between yourself, Ms. 4 Walsh, and Dr. Smith where the issue of photographs was - 5 - was addressed; is that fair? 6 MR. GREGORY MACLELLAN: Yes. 7 MS. MARA GREENE: And at that meeting, 8 Ms. Walsh specifically asked Dr. Smith about the 9 photographs someone from his office took, right? 10 MR. GREGORY MACLELLAN: Yes. 11 MS. MARA GREENE: And he originally then 12 questioned or essentially denied that his office had 13 taken such photographs; is that fair? 14 MR. GREGORY MACLELLAN: You can read it 15 as a denial if you wish. The words were: What 16 photographs? So was he reaching for the memory or was he 17 denying? 18 MS. MARA GREENE: He then expressed some 19 annoyance, is that fair, being asked about these 20 photographs -- 21 MR. GREGORY MACLELLAN: Oh, yes. 22 MS. MARA GREENE: -- that you had taken - 23 - and that you had taken notes of those -- the fact that 24 someone had taken photographs? 25 MR. GREGORY MACLELLAN: Yes. Yes.
2471 MS. MARA GREENE: Okay. And I gather 2 ultimately you received those photographs? 3 MR. GREGORY MACLELLAN: I never saw them, 4 I don't think. 5 MS. MARA GREENE: Okay. Now, do you -- 6 did you take a note of that meeting and was that 7 disclosed to the defence? 8 MR. GREGORY MACLELLAN: I took a note of 9 that meeting. I did not write down all the terms. I -- 10 I didn't write down about -- I mean we could go to that 11 date -- I know that date -- and give you specifics but I 12 know I didn't write down the whole context of the 13 conversation and him being upset with me for taking notes 14 and stuff. 15 I don't think that's in there. We can to 16 that date; it was February 10th. I have those notes. I 17 think they were passed around. 18 MS. MARA GREENE: They were. I, 19 unfortunately, have not had a chance to review them all. 20 If you can open your notes then to February 10th to see 21 what was recorded? 22 MR. GREGORY MACLELLAN: Just one (1) sec. 23 24 (BRIEF PAUSE) 25
2481 COMMISSIONER STEPHEN GOUDGE: Are they 2 the ones that were... 3 4 (BRIEF PAUSE) 5 6 MR. MARK SANDLER: When -- when the 7 sergeant testified this morning, he made reference to the 8 February 10th date and we noticed that we didn't have 9 that date and a couple of the notes -- 10 COMMISSIONER STEPHEN GOUDGE: So we now -- 11 MR. MARK SANDLER: -- in the databank -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MR. MARK SANDLER: -- so we distributed 14 them -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. MARK SANDLER: -- in hard copy. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 MS. MARA GREENE: Yes. 19 MR. MARK SANDLER: I can provide you -- 20 MS. MARA GREENE: I apologize, 21 Commissioner, I just haven't had a chance to review all 22 these notes so... 23 24 (BRIEF PAUSE) 25
2491 MR. GREGORY MACLELLAN: Do you want me to 2 run through them in general, the notes from that meeting? 3 4 CONTINUED BY MS. MARA GREENE: 5 MS. MARA GREENE: Have you had an 6 opportunity to read your notes from that meeting? 7 MR. GREGORY MACLELLAN: Yeah, do you want 8 me to run through the gist of -- 9 MS. MARA GREENE: Yes, please. 10 MR. GREGORY MACLELLAN: -- it here? 11 COMMISSIONER STEPHEN GOUDGE: Where does 12 it start? 13 MR. GREGORY MACLELLAN: At Monday -- 14 COMMISSIONER STEPHEN GOUDGE: Yes, I 15 thought -- 16 MR. GREGORY MACLELLAN: -- February 10th. 17 COMMISSIONER STEPHEN GOUDGE: What time? 18 MR. GREGORY MACLELLAN: 9:50. 19 COMMISSIONER STEPHEN GOUDGE: That's the 20 9:50 entry? 21 MR. GREGORY MACLELLAN: Yes. So we meet 22 Dr. Smith, we're in the cafeteria, we review reports from 23 -- the reports from Cleveland. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MR. GREGORY MACLELLAN: Basically seen to
2501 use cyclosporin peaks, and we talk about these peaks, and 2 then the children in the study die of pulmonary 3 hemorrhage and Joshua didn't; we talk about the brain, 4 well, there's things that occur in SIDS. 5 We talked about the skull fracture, and 6 it's not spelled out well in my notes, but at -- at this 7 time I suggested to him, you know, did you find this now 8 when you were preparing -- you know, in recent months 9 when you were preparing for the preliminary hearing; if 10 you did, say so. 11 And he insisted that, no, he found them 12 during the initial examination and that it was a typo 13 that it didn't get into the report. And let's see. 14 COMMISSIONER STEPHEN GOUDGE: What are 15 you looking for, particularly, Ms. Greene? 16 MS. MARA GREENE: In particular, I'm 17 looking for whether or not there's a note as to Dr. Smith 18 -- Smith's comments about the photographs -- 19 MR. GREGORY MACLELLAN: And it's not -- 20 it's not there. 21 MS. MARA GREENE: -- and then him being 22 angry at the -- Sergeant McLellan for taking notes. 23 COMMISSIONER STEPHEN GOUDGE: The "what 24 notes" phrase? 25 MS. MARA GREENE: Yes, "what photograph"
2511 phrase. 2 MR. GREGORY MACLELLAN: And it's not 3 there. 4 5 CONTINUED BY MS. MARA GREENE: 6 MS. MARA GREENE: And is there any 7 mention in your notes about Dr. Smith being angry at you 8 for having taken notes of that -- 9 MR. GREGORY MACLELLAN: No. 10 MS. MARA GREENE: -- at the autopsy? 11 MR. GREGORY MACLELLAN: No, I didn't 12 write it down. 13 MS. MARA GREENE: Now, you further 14 indicated to us today that at a certain point in time, in 15 particular, at this meeting you had some concerns about 16 Dr. Smith, is that right? 17 MR. GREGORY MACLELLAN: I -- I was 18 frustrated with Dr. Smith and -- and my concerns were 19 around whether -- you know, I had a lot of concerns 20 around whether -- early on about whether he was taking me 21 serious with the mould investigation. 22 I had difficulty reaching Dr. Smith. I 23 had difficulty scheduling. As a matter of fact, when 24 other people had difficulty reaching Dr. Smith, Sheila 25 Walsh seemed to come to me because I was the only one (1)
2521 that managed to get through to him, usually, after great 2 effort. 3 And -- and yeah, in all the comments, 4 Sheila talked about the previous case, and then he's 5 sitting here talking about a skull fracture that -- you 6 know, in all those conversations, it was never mentioned 7 to me during the early parts of the investigation -- 8 MS. MARA GREENE: Did you --- 9 MR. GREGORY MACLELLAN: -- and I had 10 concerns. 11 MS. MARA GREENE: Did you ever record 12 those concerns in your notes? 13 MR. GREGORY MACLELLAN: I don't believe 14 so. 15 MS. MARA GREENE: And did you ever 16 disclose your concerns to the defence? 17 MR. GREGORY MACLELLAN: No. 18 MS. MARA GREENE: Okay, thank you. I 19 have no further questions. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms 21 Greene. 22 Mr. Gover...? 23 24 CROSS-EXAMINATION BY MR. BRIAN GOVER: 25 MR. BRIAN GOVER: Thank you,
2531 Commissioner. 2 Inspector Begbie and Sergeant MacLellan, 3 my name is Brian Gover, and I act for the Office of the 4 Chief Coroner. And Sergeant MacLellan, I don't have any 5 questions for you, but I have a few for you, Inspector 6 Begbie, and they all relate to the role of the coroner at 7 the scene of a criminally suspicious death. 8 And I -- I take it that it's appropriate, 9 in your view, for the police to be concerned about 10 contamination of death scenes, is that right, sir? 11 MR. BRIAN BEGBIE: That's fair, yes. 12 MR. BRIAN GOVER: And the investigation 13 of Sharon's death was treated as a criminally suspicious 14 death from the outset, is that right? 15 MR. BRIAN BEGBIE: That's -- that's 16 right. 17 MR. BRIAN GOVER: It was, for all intents 18 and purposes, a police investigation from the start, is 19 that fair? 20 MR. BRIAN BEGBIE: That's fair. 21 MR. BRIAN GOVER: And I'm informed that 22 the police did not call the coroner until several hours 23 after Sharon's body was discovered. Does that accord 24 with your recollection, sir? 25 MR. BRIAN BEGBIE: I -- I can't dispute
2541 that. I -- I don't know right now, to be honest. I -- 2 I -- 3 MR. BRIAN GOVER: All right. And perhaps 4 I could draw on your experience, then, from your many 5 years as an investigator, including a homicide 6 investigator. 7 In a criminally suspicious case -- one (1) 8 that's criminally suspicious from the outset that is -- 9 it's -- it's not unheard of for there to be several hours 10 pass before a coroner is notified, and that's because of 11 issues like contamination of the scene concerns, is that 12 right? 13 MR. BRIAN BEGBIE: Well, a lot of the 14 times we'd still notify them. They'd come, they -- they 15 wouldn't go in the scene, depending on what we -- we give 16 them or we explain to them. 17 But we would still -- I'm -- I'm surprised 18 that there was that time lag. I'd -- I'd have to check 19 that, but if it existed, typically we'd still phone them 20 and then tell them what we had. 21 MR. BRIAN GOVER: Right. And what I'm 22 told and I'm informed is that the coroner was told to 23 wait until he was further contacted in this instance, in 24 the case of -- the investigation of Sharon's death? 25 MR. BRIAN BEGBIE: Okay, so he was
2551 contacted and told we will -- we'll be back in touch. 2 That's -- that's quite possible. 3 MR. BRIAN GOVER: And that would be a -- 4 a fairly normal practice, is that right? 5 MR. BRIAN BEGBIE: Thank heavens, we 6 don't get a lot, but that would be -- that's 7 understandable. 8 MR. BRIAN GOVER: Fair enough. And now 9 what we're also informed is that he went to the scene on 10 the next morning on his own initiative; that he wasn't 11 further contacted. Is that -- first of all, do you agree 12 or disagree with that? 13 MR. BRIAN BEGBIE: I -- I can't do either 14 at this time. 15 MR. BRIAN GOVER: Fair enough. And is it 16 fair to say that the coroner's ability to view Sharon's 17 body was limited by the fact that the scene was being 18 treated as a death scene? 19 MR. BRIAN BEGBIE: That would -- that 20 would be an accurate assessment. 21 MR. BRIAN GOVER: And what we understand 22 is that the coroner did not view the body up close, is 23 that your recollection as well, sir? 24 MR. BRIAN BEGBIE: Again, I wasn't at the 25 scene when the coroner was there, but it would certainly
2561 accord, I think, with keeping the -- the body and the -- 2 the recovery site as pristine as possible for any 3 potential evidence, so I -- I wouldn't disagree with 4 that. 5 MR. BRIAN GOVER: Right. And what we've 6 heard from Dr. Lauwers, a Regional Supervising Coroner, 7 who conducted a review of the coroner's conduct, in this 8 case is that the coroner, Dr. McLlquham told him that he 9 was led to a doorway in the basement and saw the child 10 but did not examine her. 11 Is that your understanding as well, 12 Inspector Begbie? 13 MR. BRIAN BEGBIE: Again, that particular 14 facet, I -- I -- it just eludes me right now. That -- 15 that may, in fact, be true. Dr. McQuilkum, yeah, he's 16 the -- one of our area coroners. 17 MR. BRIAN GOVER: And thank you for the 18 help with the pronunciation. 19 MR. BRIAN BEGBIE: It's just as hard to 20 spell. 21 MR. BRIAN GOVER: It -- it -- from your 22 standpoint, Inspector, it was appropriate in the 23 circumstances for the coroner to pronounce Sharon's death 24 from a distance, is that fair? 25 MR. BRIAN BEGBIE: I think under the
2571 circumstances, yes. 2 MR. BRIAN GOVER: And there was a 3 forensic pathologist in Kingston at the time, is that 4 right? 5 MR. BRIAN BEGBIE: For adults, I believe, 6 but not for children. 7 MR. BRIAN GOVER: And that was Dr. 8 Dexter, is that fair? 9 MR. BRIAN BEGBIE: Yes. 10 MR. BRIAN GOVER: And finally, Inspector, 11 to your knowledge, did the police ever consider asking 12 Dr. Dexter or any other forensic pathologist to attend at 13 the scene of Sharon's death? 14 MR. BRIAN BEGBIE: I couldn't speak to 15 that. I don't know whether that was something Detective 16 Bird considered or not. 17 MR. BRIAN GOVER: All right. Thank you 18 very much, gentlemen, those are my questions. 19 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 20 Gover. Ms. Verma...? 21 MS. VEENA VERMA: I don't have -- no 22 questions. 23 COMMISSIONER STEPHEN GOUDGE: Thank you. 24 Ms. Twohig...? 25
2581 CROSS-EXAMINATION BY MS. KIM TWOHIG: 2 MS. KIM TWOHIG: Thank you, Mr. 3 Commissioner. My name is Kim Twohig, and I act for the 4 Province of Ontario. I have a few questions for you 5 Inspector Begbie. You told us about two (2) meetings 6 that you attended -- or a meeting over a two (2) day 7 period, January 12th and 15th of 2000 -- regarding the -- 8 the prosecution? Do you recall that meeting? 9 MR. BRIAN BEGBIE: 2001. 10 MS. KIM TWOHIG: 2001, that's right, 11 thank you. Do you recall that meeting? 12 MR. BRIAN BEGBIE: I do. 13 MS. KIM TWOHIG: And you attended a 14 meeting in December of 1999 as well with Crown attorneys 15 and police? 16 MR. BRIAN BEGBIE: November '99. 17 MS. KIM TWOHIG: I'm close. 18 MR. BRIAN BEGBIE: Close. 19 MS. KIM TWOHIG: And you had other 20 meetings and conversations with the Crown attorneys I 21 assume, over the period of the investigation and 22 prosecution? 23 MR. BRIAN BEGBIE: Yes. 24 MS. KIM TWOHIG: So -- in fact, the 25 police were consulted quite regularly about the state of
2591 the prosecution, weren't they? 2 MR. BRIAN BEGBIE: Yes, we were -- we 3 were part and parcel for sure. 4 MS. KIM TWOHIG: And this was throughout 5 the process? Fair? 6 MR. BRIAN BEGBIE: Yes. 7 MS. KIM TWOHIG: Okay. So when you 8 stated -- or when the Kingston Police stated in the 9 letter written to the Attorney General that the police 10 were not consulted, that wasn't true was it? 11 MR. BRIAN BEGBIE: Wasn't consulted with 12 the -- Mr. Bradley contacted Mr. Stuart. We had no input 13 in that meeting was going to take place, and then we were 14 invited, and it was -- felt like it was a foregone 15 conclusion. 16 We walked into that meeting but -- 17 MS. KIM TWOHIG: But you were consulted 18 over a two (2) day period and you had lengthy discussions 19 about the prosecutions -- 20 MR. BRIAN BEGBIE: Yeah, the second day 21 was actually not a -- the decision had already been made 22 on the one (1) day just to set the record straight there. 23 The second day was really drafting what was going to be 24 put into the court record, but it was done in the one (1) 25 meeting on the 12th.
2601 MS. KIM TWOHIG: All right. And there 2 was a great deal of discussion on that day I assume? 3 MR. BRIAN BEGBIE: There was some 4 discussion, yes. 5 MS. KIM TWOHIG: Yes. Do you recall at 6 that meeting, you did mention that Detective Sergeant 7 Bird, I believe, was -- went out of the room with Mr. 8 Bradley and participated in a teleconference with Dr. 9 Smith. Do you recall that? 10 MR. BRIAN BEGBIE: I remember once I had 11 refreshed my -- my -- going through the case again -- I 12 remembered. I didn't remember it until I -- I had 13 actually reviewed the -- some of the material. 14 MS. KIM TWOHIG: All right. I'd like to 15 take you to document PFP302821, which is found at Tab 44 16 of your binder. This is an e-mail written by Mr. Bradley 17 to Mr. Stewart, and it was subsequently shared with a few 18 other Crown attorneys. 19 MR. BRIAN BEGBIE: Okay. 20 MS. KIM TWOHIG: Do you have it before 21 you? 22 MR. BRIAN BEGBIE: I do. 23 MS. KIM TWOHIG: This is Mr. Bradley's 24 response to the letter that was written by the Kingston 25 police. And you'll notice, in the last paragraph on the
2611 first page of that document, that he's discussing the 2 conversation that took place with Dr. Smith. 3 COMMISSIONER STEPHEN GOUDGE: What is the 4 number again? Sorry, Ms. Twohig, our machinery is 5 getting tired at the end of the day. 6 MS. KIM TWOHIG: That's understandable. 7 COMMISSIONER STEPHEN GOUDGE: It is 8 PFP303042. 9 MS. KIM TWOHIG: I'm sorry, it's got 10 several PFP numbers and I think the number that is in the 11 binder is -- 12 COMMISSIONER STEPHEN GOUDGE: Is that a 13 wrong number or something? 14 MS. KIM TWOHIG: I think there's another 15 number. 16 MR. MARK SANDLER: I believe there are 17 several PFPs for the same document. 18 MS. KIM TWOHIG: Sorry, -- 19 COMMISSIONER STEPHEN GOUDGE: Oh, is this 20 the one where we had a duplicate the first day? 21 MR. MARK SANDLER: No. 22 COMMISSIONER STEPHEN GOUDGE: This is one 23 that has several PFP numbers? 24 MR. MARK SANDLER: Yeah. There's 25 actually quite a few that have several PFPs.
2621 COMMISSIONER STEPHEN GOUDGE: Yes. No, I 2 know. 3 MS. KIM TWOHIG: Do you have it at the 4 top of your page at Tab 44, Inspector Begbie? 5 MR. BRIAN BEGBIE: I do. It -- 6 COMMISSIONER STEPHEN GOUDGE: Yes. We 7 have got it -- 8 MS. KIM TWOHIG: Perhaps you could -- 9 MR. BRIAN BEGBIE: Oh, sorry. 10 COMMISSIONER STEPHEN GOUDGE: -- in the 11 book here. 12 MS. KIM TWOHIG: Oh you do, okay. 13 MR. BRIAN BEGBIE: Oh, yeah. Yeah. 14 COMMISSIONER STEPHEN GOUDGE: We have it 15 in the book, it is just not on the screen. 16 MS. KIM TWOHIG: Okay. Could -- 17 COMMISSIONER STEPHEN GOUDGE: Yes, we 18 will put it up on the screen manually -- 19 MS. KIM TWOHIG: Thanks. 20 COMMISSIONER STEPHEN GOUDGE: -- here. 21 Why don't you go ahead, Ms. Twohig. 22 23 CONTINUED BY MS. KIM TWOHIG: 24 MS. KIM TWOHIG: Okay. Thank you. I'd 25 just like to take you to the bottom of that page
2631 regarding the call -- 2 MR. BRIAN BEGBIE: Yeah. 3 MS. KIM TWOHIG: -- and where it says in 4 bold letters: 5 "This call, with the case manager for 6 the police listening, is important 7 because the Chief, by implication, 8 makes it looks like his officers had no 9 idea what was happening, when they were 10 a part of the process including my 11 reconfirming as a double-check for 12 accuracy. 13 Plus the fact that Detective Sergeant 14 Bird confirmed the change in the 15 opinions of Dr. Smith when we went back 16 in the meeting on the Monday, to the 17 rest of the group, as to what Dr. Smith 18 was now saying." 19 Do you remember that confirmation by 20 Detective Sergeant Bird? 21 MR. BRIAN BEGBIE: All that detail that I 22 would have gotten then, I -- I can't say today. I -- I 23 know he went and -- and I read it and I wasn't privy to 24 what went on downstairs, but I know that he went down and 25 they had that discussion.
2641 It's -- my take on that is it's the exact 2 conversation. He's just reiterating that he did by 3 himself on a prior occasion. 4 MS. KIM TWOHIG: That's right. Then do 5 you remember a Detective Sergeant Bird coming back into 6 the room where the meeting was taking place and 7 confirming that, in fact, it appeared Dr. Smith was 8 changing his opinion? 9 MR. BRIAN BEGBIE: I -- do I have 10 independent recollection right now? No. 11 MS. KIM TWOHIG: Okay. Continuing on, 12 and Mr. Bradley says: 13 "In addition, it was Detective Sergeant 14 Bird who, in your presence at the 15 Monday meeting, said he understood why 16 the Crown had concluded there was no 17 reasonable prospect and quote 'I will 18 take the bull by the horns and say I 19 agree with the decision'." 20 Do you recall Detective Sergeant Bird 21 saying those words? 22 MR. BRIAN BEGBIE: No. 23 MS. KIM TWOHIG: Do you agree that he did 24 agree with the Crown whether or not he used those words? 25 MR. BRIAN BEGBIE: I -- I said earlier I
2651 don't -- that wasn't my impression of that. So no, I -- 2 I don't recall that. 3 MS. KIM TWOHIG: Okay. And I take it you 4 have no recollection of Mr. Bradley going around the 5 table and asking everyone if they agreed with the 6 decision to withdraw the charges? 7 MR. BRIAN BEGBIE: No. And I don't have 8 any notes in -- in stuff that I've reviewed that would 9 help me with that. 10 MS. KIM TWOHIG: Right. And you have no 11 reason to deny that that happened? 12 MR. BRIAN BEGBIE: I -- I can't say that 13 it didn't. 14 MS. KIM TWOHIG: Thank you. Those are my 15 questions. 16 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 17 Twohig. 18 Mr. Sandler...? 19 20 RE-DIRECT EXAMINATION BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Just one (1) area, 22 Inspector Begbie, if -- if I could explore with you. 23 In response to questions from Mr. Wardle 24 and -- and you recall he was -- he was pressing you on 25 this tunnel-vision point and -- and in the course of your
2661 answers on the issue of tunnel-vision, you made reference 2 to your involvement or your police force's involvement in 3 the subsequent investigation that led to the apprehension 4 of Mr. Strowbridge. 5 Is that right? 6 MR. BRIAN BEGBIE: That is correct. 7 MR. MARK SANDLER: And in the course of - 8 - and this was -- and I don't want to get into too many 9 details about it, but this was what has come to be known 10 as a "Mr. Big" operation, is that right? 11 MR. BRIAN BEGBIE: And that's why, if it 12 was a little awkward when I was trying to respond, I was 13 trying to be very guarded and not give out anything. 14 Because it is a "Mr. Big" operation, and it involves a 15 lot of techniques. And I found -- catching myself from 16 saying things I didn't want to say because that's not 17 stuff I want to put into evidence. 18 MR. MARK SANDLER: All right. Well, the 19 only thing that I want to ask you about it, then, is that 20 in the course of the investigative work, and if you feel 21 you can't answer this, that's fine, we'll, of course, 22 respect it, but did you engage in a process that invited 23 some scrutiny of whether he was involved in the Sharon 24 case, in addition to any investigative work that was done 25 to implicate him in the case in Newfoundland?
2671 MR. BRIAN BEGBIE: Yes. 2 MR. MARK SANDLER: All right. Thank you. 3 Those are all the questions I have. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 5 Sandler. 6 Well, gentlemen, it's been a long day. I 7 just want to thank counsel for being so direct and 8 expeditious, but thanks in particular to the two (2) of 9 you. We value the time you spent preparing and we value 10 the information you have given to us, so thank you for 11 coming. 12 MR. GREGORY MACLELLAN: Thank you. 13 MR. BRIAN BEGBIE: Thank you, sir. 14 COMMISSIONER STEPHEN GOUDGE: We'll rise, 15 then, and we're back to our usual starting time tomorrow 16 of 9:30. 17 18 (WITNESSES STAND DOWN) 19 20 --- Upon adjourning at 4:33 p.m. 21 22 23 24 25
2681 2 3 4 Certified Correct 5 6 7 8 9 ________________ 10 Rolanda Lokey, Ms. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25