1
  1  
  2  
  3               THE INQUIRY INTO PEDIATRIC FORENSIC
  4                      PATHOLOGY IN ONTARIO
  5  
  6  
  7  
  8                   ********************
  9  
 10  
 11  BEFORE:        THE HONOURABLE JUSTICE STEPHEN GOUDGE,
 12                 COMMISSIONER
 13  
 14  
 15  
 16  Held at:
 17                      Offices of the Inquiry
 18               180 Dundas Street West, 22nd Floor
 19                         Toronto, Ontario 
 20  
 21  
 22                   ********************
 23  
 24                     March 31st, 2008
 25  

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

3
  1                   APPEARANCES (CONT'D)
  2  William Carter            )     Hospital for Sick Children
  3  Barbara Walker-Renshaw (np))
  4  Kate Crawford             )
  5  
  6  Paul Cavalluzzo           )     Ontario Crown Attorneys'
  7                                   Association
  8  
  9  Mara Greene          (np) )     Criminal Lawyers'
 10  Breese Davies        (np)  )    Association
 11  Joseph Di Luca            )
 12  Jeffery Manishen      (np) )
 13  
 14  James Lockyer        (np) )     William Mullins-Johnson, 
 15  Alison Craig               )    Sherry Sherret-Robinson and
 16  Phillip Campbell     (np) )     seven unnamed persons
 17  
 18  Peter Wardle         (np) )     Affected Families Group
 19  Julie Kirkpatrick          )
 20  Daniel Bernstein     (np) )
 21  
 22  Louis Sokolov        (np) )     Association in Defence of
 23  Vanora Simpson            )     the Wrongly Convicted
 24  Elizabeth Widner      (np) )
 25  Paul Copeland         (np) )

4
  1                 APPEARANCES (cont'd)
  2  Jackie Esmonde             )     Aboriginal Legal Services 
  3  Kimberly Murray    (np)   )     of Toronto and Nishnawbe-
  4  Sheila Cuthbertson  (np)   )     Aski Nation
  5  Julian Falconer    (np)   )
  6  
  7  Suzan Fraser              )     Defence for Children 
  8                             )     International - Canada
  9  
 10  William Manuel            )     Ministry of the Attorney
 11  Heather Mackay     (np)   )     General for Ontario
 12  Erin Rizok          (np)   )
 13  Kim Twohig                 )
 14  Chantelle Blom     (np)    )
 15  
 16  Natasha Egan              )     College of Physicians and 
 17  Carolyn Silver            )     Surgeons
 18  
 19  Michael Lomer              )    For Marco Trotta
 20  Jaki Freeman        (np)   )
 21  
 22  Emily R. McKernan   (np)   )    Glenn Paul Taylor
 23  
 24  
 25  

5
  1                   TABLE OF CONTENTS                  Page No.
  2  
  3  Submissions by Mr. Peter Wardle                             6
  4  Submissions by Ms. Suzan Fraser                            75
  5  Submissions by Mr. Joseph Di Luca                          94
  6  Submissions by Mr. Paul Cavalluzzo                        117
  7  Submissions by Mr. William Manuel                         138
  8  Submissions by Ms. Carolyn Silver                         162
  9  Submissions by Mr. William Carter                         176
 10  
 11  
 12  Certificate of transcript                                190
 13  
 14  
 15  
 16  
 17  
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25  

6
  1  --- Upon commencing at 9:30 a.m.
  2  
  3                 THE REGISTRAR:   All Rise.  Please be
  4  seated.
  5                 COMMISSIONER STEPHEN GOUDGE:   Good
  6  morning.  Well, we are here for oral submissions, Ms.
  7  Rothstein.  I take it we just begin with Mr. Wardle, is
  8  that right?
  9                 MS. LINDA ROTHSTEIN:   That's correct,
 10  Commissioner.
 11                 COMMISSIONER STEPHEN GOUDGE:   Mr. Wardle,
 12  when you are ready why don't you come up and we can
 13  begin.
 14  
 15                       (BRIEF PAUSE)
 16  
 17  SUBMISSIONS BY MR. PETER WARDLE:
 18                 MR. PETER WARDLE:   Mr. Commissioner, in a
 19  letter from the Birmingham jail in 1963, Martin Luther
 20  King said this: "Injustice anywhere is a threat to
 21  justice everywhere."  And that's a profound statement
 22  which has many implications, but I'm going to suggest
 23  that it has particular meaning, and if I can use that
 24  word, resonance, for this Inquiry.
 25                 In this Inquiry we've heard evidence of

7
  1  how Pediatric Forensic Pathology as it was practised in
  2  Ontario from 1991 to 2001 intersected with twenty (20)
  3  cases in the criminal justice system.  And we can put
  4  aside for the moment issues of legal cause and effect, of
  5  liability and culpability of who and how and when, and we
  6  can instead ask ourselves the much more important
  7  question:  Was there injustice in these cases?
  8                 And surely, Mr. Commissioner, the answer
  9  to that question has to be, Yes.  Who could defend the
 10  way the justice system worked in these cases?  Who is
 11  prepared to say, for example, with respect to the clients
 12  whom I represent, that the system worked properly; you
 13  were acquitted, the charges were stayed or withdrawn, you
 14  have nothing to complain about.  
 15                 And if there was individual injustice in
 16  these cases, as I suggest there was, then what were the
 17  consequences?  
 18                 You haven't heard evidence from
 19  individuals during this Inquiry, but you did meet
 20  privately with many of them.  And you understand, I'm
 21  sure, Mr. Commissioner, that the consequences have been
 22  devastating: loss of liberty, loss of reputation,
 23  families split, children separated from their mothers,
 24  financial hardship.  Consequences that are lifelong.
 25                 To come back to King's phrase, what is the

8
  1  threat to justice everywhere which stems from these
  2  individual injustices?  In my submission it is a loss of
  3  confidence; it is a feeling that the system has failed us
  4  and might fail again; it is a feeling that we one day
  5  might be in a similar situation to one of the families
  6  here if we lost a child in unusual suspicious
  7  circumstances.
  8                 So your specific mandate to make
  9  recommendations to restore and enhance public confidence
 10  in pediatric forensic pathology in Ontario in my
 11  submission is just another way of saying that your task
 12  is to assist restoring confidence to the justice system
 13  as a whole.
 14                 Our clients have never believed that this
 15  Inquiry was about Dr. Charles Smith.  They have
 16  understood from the beginning that the issues were much
 17  bigger than one (1) individual.  They have always
 18  understood that his failings simply underscored much
 19  larger systemic issues; ones involving the very nature of
 20  forensic pathology itself, of oversight and
 21  accountability, and with the way expert evidence is dealt
 22  with by the justice system at large.
 23                 However, they do want you to find the
 24  facts to uncover the truth, as Justice Cory put it during
 25  the blood inquiry reference.  And the want you not to

9
  1  assign blame in a legal sense, but to outline what
  2  happened in a way that makes it clear how the conduct of
  3  individuals played a central role in systemic failures. 
  4  And of course they want you to make practical repen --
  5  recommendations that when implemented will make it
  6  impossible for these problems to ever happen again and
  7  will restore public confidence in the justice system as a
  8  whole.
  9                 Now your mandate requires you to look at
 10  the three (3) time periods.  You have an obligation to
 11  review, and assess, and report on the specific matters
 12  covered in your mandate during the time period from 1991
 13  to 2001.  As I interpret the mandate, you have to assess,
 14  and review, and report on changes from 2001 to the
 15  present.  And finally, of course, you have to look
 16  forward into the future in making recommendations.
 17                 Our written submissions emphasise the
 18  initial time period, because in our perspective it is
 19  very important that you uncover the truth of the events
 20  which took place during that time period.  And we
 21  acknowledge that there are many important changes which
 22  have taken place since 2001 and which you will have to
 23  take into account; that hasn't been our primary focus, it
 24  has been the focus of others.  And while we've made a
 25  number of recommendations we have not tried to encompass

10
  1  all of the areas that you'll be considering because there
  2  are others here that may be better situated to do this.
  3                 My submissions from this point forward are
  4  organised to dovetail with the mandate set out in the
  5  Order in Council, and I'll be really de -- dealing with
  6  them in four (4) sections.
  7                 First, I want to speak briefly about the
  8  nature of forensic pathology, and my submission will be
  9  that it is -- was, is, and remains an inexact
 10  interpretive science, one that is as much art as science.
 11                 Secondly, I will make submissions
 12  regarding Dr. Smith's practices during the years of the
 13  mandate.  And my submission is that he lacked three (3)
 14  essential ingredients for an expert working within the
 15  coroner's system: competence, professionalism, and
 16  objectivity.
 17                 Thirdly, I'll make submissions dealing
 18  with oversight and accountability.  Our thesis in our
 19  submission is that during 1991 to 2001 and beyond, up
 20  until as late as 2003 no one at the Chief Coroner's
 21  Office took responsibility for Dr. Smith's errors, nor
 22  was he held accountable for them. 
 23                 And finally, I will turn to our specific
 24  recommendations, and while I won't deal with all of them,
 25  I will try to cover the most important.  I'm not, Mr.

11
  1  Commissioner, going to review the six (6) cases involving
  2  our clients individually, we've done that in our written
  3  submissions, but I will touch occasionally on key aspects
  4  of them.  
  5                 So my first submission deals with forensic
  6  pathology itself.  And in my submission, it's important
  7  at the outset for you to draw some conclusions from the
  8  evidence about the nature for forensic pathology.
  9                 And we've heard from many of the witnesses
 10  that it has inherent limits and flaws.  It is an inexact
 11  science that depends to a certain degree on the
 12  application of judgment.  Like other forensic sciences,
 13  it is not suitable for the calculation of error rates. 
 14  It's only moving now towards the adoption of more
 15  scientific approaches and standards.
 16                 And I want to refer briefly to two (2) of
 17  the papers that were submitted to the Inquiry, and these
 18  are -- these extracts are in my closing documents brief. 
 19  And the first one is Dr. Gruspier's article, and I'll
 20  give the PFP reference as 175420.  It's in my brief at
 21  the very last tab, Tab 15.
 22                 And if we turn to page 4 of her article,
 23  you'll see Dr. Gruspier refers to an important review,
 24  the Saks and Koelhler article based in part on earlier
 25  publications on the changing nature of the forensic

12
  1  identification sciences.
  2                   "Until now traditional forensic science
  3                   has relied on the assumption of
  4                   discernible uniqueness in matching such
  5                   things as handwriting, fingerprints,
  6                   tool marks, hair, tire marks, bite
  7                   marks and so forth.
  8                   When there was no observable difference
  9                   between two (2) things, they were
 10                   assumed to have been produced by the
 11                   same person or object."
 12                 And then the authors go on to say:
 13                   "Although lacking theoretical or
 14                   empirical foundations, the assumption
 15                   of discernible uniqueness offers
 16                   important practical benefits to the
 17                   traditionally forensic sciences.  It
 18                   enable forensic scientists to draw bold
 19                   definitive conclusions that can make or
 20                   break cases.  It excuses the forensic
 21                   sciences from developing measures of
 22                   object attributes, collecting
 23                   population data on the frequencies of
 24                   variations in those attributes, testing
 25                   attribute independence, or calculating

13
  1                   and explaining the probability that
  2                   different objects share a common set of
  3                   observable -- observable attributes."
  4                 And then you'll see a little further down
  5  on the page:
  6                   "And integral part of scientific
  7                   testing is the estimation of error
  8                   rates with the method used.  Error
  9                   rates allow the scientist and the Court
 10                   to objectively assess how likely an
 11                   expert opinion given in a trial is to
 12                   be true, or how closely it approaches
 13                   the truth."
 14                 Unfortunately as Saks and Koehler point
 15  out:
 16                   "This concept has not yet been embraced
 17                   by forensic scientists.  Instead, when
 18                   faced with a mistake, the forensic
 19                   scientist attempts to distinguish
 20                   between method error and practitioner
 21                   error."
 22                 And then over the page to page 6, around
 23  the middle of that long paragraph, and you'll see she
 24  says:
 25                   "Practitioner error can include

14
  1                   elements of observer bias -- [I'm
  2                   sorry] observer effect and confirmation
  3                   bias.  Observer effect is defined as an
  4                   error of apprehension recording recall
  5                   computation or interpretation that
  6                   results from the -- some straight --
  7                   some trait or state of the observer.  
  8                   Confirmation bias is defined as the
  9                   tendency to test the hypothesis by
 10                   looking for instances that confirm it
 11                   rather than by searching for
 12                   potentially falsifying instances.  To
 13                   date when errors have been discovered
 14                   in pediatric forensic pathology in
 15                   Ontario, the error has been determined
 16                   to be practitioner error as opposed to
 17                   methal -- methodological error."
 18                 And then she says:
 19                   "There have been very few published
 20                   tests for practitioner error presented
 21                   in the forensic scientific literature
 22                   to-date.  A recent test of fingerprints
 23                   identified a third source of error that
 24                   appears to be a species of confirmation
 25                   bias in practitioner error.  The

15
  1                   authors define it as in essence a
  2                   epistemological problems that derive
  3                   from the mechanisms of the human
  4                   cognition and the workings of the
  5                   mind."  
  6                 And then she refers to a specific paper
  7  dealing with fingerprint experts.  And you'll see at the
  8  bottom of that paragraph:  
  9                   "In approximately 17 percent of the
 10                   cases the examiners changed their
 11                   findings to match that of the context,
 12                   thereby giving an incorrect result."
 13                 And this perhaps the point of reading this
 14  extract: 
 15                   "It is an accepted assumption that
 16                   methodological error in forensic
 17                   pathology can be minimized by utilizing
 18                   a standard format or autopsy protocol. 
 19                   Practitioner error in the form of
 20                   observer effect can be minimized by
 21                   education and corrected by peer review. 
 22                   Practitioner error in the form of
 23                   confirmation bias can be minimized by
 24                   education and how to apply the
 25                   scientific method, and by undertaking

16
  1                   scientific research.  As for the
  2                   cognitive source of practitioner error,
  3                   or the third source or error, as with
  4                   technological and instrumentation
  5                   advantages that have improved their
  6                   limits, accuracy, and levels of
  7                   precision, so can human performance be
  8                   improved with correct selection,
  9                   training, and procedures.  However,
 10                   such endeavours need to be based on
 11                   systematic and scientific research, and
 12                   even then they will not totally
 13                   eliminate human error of category 3."
 14                 And then very briefly I also want to refer
 15  -- and this will be the last of the academic articles
 16  I'll refer to -- the article by Bruce McFarlane at the
 17  previous tab, Tab 14, and this is PFP175326.  
 18                 And the extract I've given you starts at
 19  page 29 dealing with tunnel vision and I'm going to take
 20  you page 36.  And you'll see he starts at the bottom of
 21  that page by saying:
 22                   "The human tendency towards tunnel
 23                   vision is in large measure innate.  It
 24                   is a distinctive feature of our
 25                   psychological makeup.  Psychologists

17
  1                   see tunnel vision as the product of
  2                   various cognitive biases.  Properly
  3                   understood these biases individually or
  4                   collectively are capable of explaining
  5                   how and why tunn -- tunnel vision is so
  6                   common, even among well meaning and
  7                   otherwise honest justice system
  8                   participants.  
  9                 And other on the next page, you'll see at
 10  the bottom of the page under the heading, Confirmation
 11  Bias:
 12                   "Confirmation bias involves the
 13                   tendency to seek or interpret
 14                   information in ways that support
 15                   existing beliefs, expectations, or
 16                   hypothesis.  In part, this bias
 17                   reflects the reality that when testing
 18                   a hypothesis or conclusion people tend
 19                   to look for information that confirms
 20                   their view, avoiding or ignoring
 21                   information that challenges it."
 22                 And then going down a little further:
 23                   "A subset of this bias involves belief
 24                   perseverance; the tendency to resist
 25                   changing one's initial hypothesis even

18
  1                   in the face of new dispositive evidence
  2                   that undermines the initial theory. 
  3                   This bias causes -- causes even
  4                   experienced professionals to question
  5                   information that conflicts with their
  6                   existing belief and interpret new
  7                   information in a way that supports
  8                   their belief rather than disconfirming
  9                   it.
 10                 And then finally over to page 40, more
 11  broadly:
 12                   "A form of confirmation bias may assist
 13                   in understanding why scientists in
 14                   England, Australia, New Zealand, the
 15                   United States, and Canada working in
 16                   government or police operated
 17                   laboratories felt aligned with the
 18                   prosecution, resulting in a perception
 19                   that their mandate was to support the
 20                   theory of the police."
 21                 And if that sounds familiar, Mr.
 22  Commissioner, it's because we heard evidence to that
 23  effect from one (1) of the witnesses at this Inquiry, Dr.
 24  Charles Smith.  
 25                   "Wrongful convictions resulted in each

19
  1                   country, and in some instances multiple
  2                   miscarriages of justice occurred.  It
  3                   is to say the least, disconcerting that
  4                   these inappropriate alignments arose in
  5                   vastly legal, social, and political
  6                   contexts, again, tending to support the
  7                   view that the psychological forces at
  8                   play lie deep in the psyche of
  9                   otherwise decent people."
 10                 And we've heard evidence at this Inquiry
 11  not only about Dr. Smith himself and how he felt he was
 12  aligned at times with the prosecution, but we've heard
 13  evidence more broadly that suggest that there was tunnel
 14  vision, in the broadest sense, taking place in some of
 15  these cases.
 16                 And to give you just one example, in the
 17  Sharon case you'll recall in 2000 when Ed Bradley became
 18  involved in the case and began to look at the evidence
 19  with an open mind, asked questions, and probed some of
 20  the assumptions which everyone in the -- else in the case
 21  had made up to that point -- and you'll recall that even
 22  after the exhumation and after the evidence that emerged
 23  the police and the Crown at that point were still
 24  prepared to go to trial with that case.  Ed Bradley began
 25  to ask questions and those questions eventually led him

20
  1  to Dr. Smith.  And he put to Dr. Smith all he had
  2  learned, and that's in the document brief at Tab 7. 
  3                 And I won't take you through that, but
  4  what it demonstrates is that when confronted with all of
  5  this information Dr. Smith backed away, backed away, and
  6  backed away to a point where really there was nothing
  7  left of his original opinion.
  8                 But what's interesting about this case is
  9  that even at this point -- and remember one (1) of these
 10  phone calls -- one (1) of these conversations with Dr.
 11  Smith was in a room with police officers present.  The
 12  Crowns and the police are gathered, huddled in Kingston;
 13  Ed Bradley picks up the phone and calls Dr. Smith;
 14  there's an off -- there's officers involved in that call. 
 15  Even after that, after the charges are withdrawn, the
 16  police are still angry that the case wasn't allowed to go
 17  to trial.
 18                 And you'll see that at the next tab.  The
 19  next tab is an email chain.  After Chief Closs sends his
 20  letter Ed Bradley writes an email to James Stewart in the
 21  Attorney General's office and he explains the rationale
 22  he had followed and the steps he had taken, including the
 23  fact that the police were involved in the conversation
 24  with Dr. Smith. 
 25                 And you'll see if you look over at the

21
  1  second page, in the middle of the page -- and of course
  2  by this time Ed Bradley had actually met with one of the
  3  defence experts, Dr. Ferris, and he says: 
  4                   "I must also say that it was only after
  5                   Ferris' review of the photos of the
  6                   original autopsy that in many spots on
  7                   the body, especially the back and
  8                   shoulders, that you could see where the
  9                   large canine teeth had punctured, and
 10                   then when they lost their grip gouged
 11                   down the back.  And there were several
 12                   spots where you could see arches with
 13                   multi -- multiple marks clearly what
 14                   even a layperson would associate with a
 15                   bite impression.  Obviously with tunnel
 16                   vision, as Justice Kaufman mentioned,
 17                   everybody, including Smith and Wood
 18                   failed to pick this up.  They,
 19                   including Wood, realised that they had
 20                   made a mistake and changed their
 21                   opinion accordingly as new evidence and
 22                   facts became apparent.  
 23                   In fairness to them it was not just a
 24                   paper change, as the Chief suggests. 
 25                   Also as scientists are they supposed to

22
  1                   take a position and never change it,
  2                   even if new opinions and facts come to
  3                   light."
  4                 And then a paragraph down about going
  5  outside of the Court bou -- boundaries, and this is the -
  6  - over the issue of the retention of Dr. Symes -- or Dr.
  7  Symes, Dr. Wood when asked about Dr. Symes said: 
  8                   "He's the expert when it comes to tool
  9                   marks and marks on bones.  And Dr.
 10                   Smith, he's the leading expert in North
 11                   America in this area of expertise. 
 12                   When Dr. Young says to me that he wants
 13                   to get the top expert in North America
 14                   because he wants to know the truth once
 15                   and for all, are we supposed to say the
 16                   Jack Nicholson line in the movie: 'You
 17                   don't want the truth because you can't
 18                   handle the truth.'"
 19                 And that's one (1) case and one example. 
 20  And perhaps all this really tells us is something that we
 21  knew already, we knew as a result of the Kaufman Inquiry,
 22  that expert evidence, here forensic pathology, can have a
 23  powerful impact on those involved in the criminal justice
 24  system, and it can play a major role in wrongful arrests
 25  and prosecutions.

23
  1                 However, in my submission the frailties of
  2  forensic pathology and its vulnerability to cognitive
  3  biases has direct implications for this Inquiry for two
  4  (2) reasons. 
  5                 First, it means that in your review and
  6  assessment and report on the period 1991 to 2001, you
  7  will need to make findings of fact on whether Dr. Smith's
  8  work was subject to these biases.  And I'll come back to
  9  that subject in a moment.  
 10                 Second, in looking in the future and
 11  designing the pediatric forensic pathology system of the
 12  future, you have to consider this issue.  And that's not
 13  to say that what Dr. Pollanen talked about in his
 14  evidence, the evidence-based approach, the object of
 15  reviewability, that's not to say that any of that should
 16  be thrown out.  Nor do we think it's practical to say
 17  that this form of science doesn't meet reliability
 18  thresholds to be accepted by the Courts.  
 19                 We have to be pragmatic.  The justice
 20  system needs forensic science and can't do without it. 
 21  It's that simple.  
 22                 But we do submit that all those who work
 23  within the system should recognize that there are limits
 24  to what proper education and training can do.  Filtering,
 25  to use a concept of Dr. Pollanen's, is not a scientific

24
  1  concept at all, it's a -- it's a concept that's
  2  completely dependent on the judgment of the filterer.  So
  3  we say that you should be concluding, to put it bluntly,
  4  that this area of science is particularly prone to the
  5  kind of biases outlined in the McFarlane and Gruspier
  6  papers.  And I submit that this has a number of
  7  implications.  
  8                 First, the culture of the Coroner's Office
  9  and the culture of the people who work there is
 10  important.  And you'll recall we made submissions in our
 11  written material about that corporate culture, the
 12  culture of think dirty. 
 13                 Second -- and here I am on the same, I
 14  think, page at Dr. Pollanen -- peer review, audit,
 15  quality assurance, second opinions are vital.  
 16                 Third, all of these things together can
 17  minimize cognitive biases, but they can't eliminate it
 18  completely.  And I'll come back to that when I deal with
 19  recommendations.  
 20                 So let me turn then to my second
 21  submission, and that is Dr. Smith's conduct; a lack of
 22  competence, professionalism, and objectivity.  Competence
 23  is the simplest subject to discuss because Dr. Smith
 24  admits it himself.  He was self taught.  He didn't get
 25  any education and training in forensic pathology.  He

25
  1  worked in isolation from other forensic pathologists,
  2  such as Dr. Chiasson.  
  3                 His lack of competence shows up in many
  4  ways;  in the asphyxia cases, for example; in his
  5  analysis in Nicholas; in his initial opinion on the
  6  penetrating wounds in Sharon's case.  
  7                 Professionalism.  In our submission, this
  8  is equally important, and it's linked to a whole
  9  constellation of other factors that you have to consider:
 10  training, quality assurance, standards, oversight.  Now,
 11  professionalism can be defined broadly as the inchoate
 12  qualities we expect of members of a profession.  
 13                 Dr. Smith exhibited unprofessional conduct
 14  in many ways: losing exhibits for example; the loss of
 15  slides or a cast in a chaotic office; mislabeling DNA
 16  samples; putting a hair in a desk drawer and leaving it
 17  there for five (5) years; chronic tardiness; bringing
 18  one's son to exhumation; casual comments like, I guess
 19  I'll be doing his autopsy too then.  
 20                 These are all, in my submissions,
 21  symptomatic of an individual who does meet, perhaps
 22  cannot meet, the standard we the public expect of a
 23  professional, especially one involved in both medicine
 24  and science, one who is an expert.  
 25                 Third, objectivity.  And we suggest that

26
  1  on the record as a whole there is a -- an overwhelming
  2  amount of evidence to suggest that Dr. Smith did not
  3  approach his work in an objective fashion, either because
  4  he was subject to cognitive biases which played a role in
  5  his subconscious thinking, or because as he himself
  6  admitted, he saw his role in the process to support the
  7  Crown.
  8                 In the document brief I have one (1) very
  9  simple example taken from Amber's case and that's at Tab
 10  3.  It's PFP045338.  And this is a letter written during
 11  the course of SM's Trial to one of the defence experts,
 12  Dr. Lucy Rorke.
 13                 And I'm really going to direct you just to
 14  the fourth paragraph in which Dr. Smith says:
 15                   "Mr. Rorke have explained the reason
 16                   for the exhumation.  It was not
 17                   undertaken to substantiate the
 18                   diagnosis of child abuse, for there was
 19                   ample clinical evidence to support such
 20                   a diagnosis, but rather to look for
 21                   evidence which might prove the
 22                   babysitter to be innocent."
 23                 Now I cite this example for a reason. 
 24  This specific letter formed part of one of DM's
 25  complaints to the College.  You have in the record a

27
  1  detailed explanation from Dr. Smith responding to all of
  2  the complaints made about this letter.
  3                 And I would agree with My Friend, Mr.
  4  Ortved, that you could not make findings of fact relating
  5  to Dr. Smith's bias and lack of objectivity if the record
  6  was limited to one (1) or two (2) instances of this kind.
  7                 Sadly that's simply not the case.  We see
  8  from a variety of sources, comments made in autopsy
  9  history's, comments made in Dr. Smith's own
 10  correspondence, affidavits, testimony, that he often
 11  approached the autopsy from a default diagnosis; that the
 12  death must have occurred in the resul -- as a result of
 13  foul play in the absence of a reasonable explanation. 
 14  And that of course, as Dr. Pollanen pointed out, is not a
 15  scientific approach at all.  
 16                 And in my submission, it really leads
 17  directly to a form of confirmation bias; the tendency to
 18  interpret information in a way that supports an existing
 19  hypotheses; here, that the death resulted from foul play. 
 20  And I suggest, Mr. Commissioner, that that explains much
 21  of Dr. Smith's conduct.  It explains his conduct in
 22  Amber.  It explains the change in his approach in
 23  Nicholas, for example.  
 24                 After the -- what Inspector Keetch called
 25  the five (5) pillars of his initial opinion began to

28
  1  crumble, a post-mortem artifact suddenly became something
  2  new that was brought into the diagnosis.
  3                 It explains, for instance, why in the
  4  Joshua case he could see a slide under the microscope and
  5  see something that no one else saw, or has ever seen. 
  6  Having made an initial default diagnosis, all of the
  7  evidence was viewed through that lens.
  8                 And I suggest that Dr. Smith funnelled and
  9  reflected back information he was given about extraneous
 10  factors; information about the background of the family,
 11  for example.  And that -- and I'm not saying consciously
 12  -- somehow became a part of his thinking.  And it's
 13  reflected again and again in some of him comments, for
 14  example, in the -- in the autopsy documents.
 15                 Take just one (1) example, the Jenna case. 
 16  Dr. Smith was given information early on, likely before
 17  the autopsy, and that is in his notes, which is in our
 18  little document brief.  I have the typed version of the
 19  notes at Tab 12.  
 20                 So you'll remember on the first page,
 21  about five (5) lines down, the words "coffee" and
 22  "arrow":
 23                   "Six (6) to seven (7) hours [question
 24                   mark]?  Hooker".   
 25                 Five (5) years later the case is done,

29
  1  Brenda Waudby's been acquitted or the charges have been
  2  withdrawn against her, she complains to the College.  Dr.
  3  Smith comes in to meet with Dr. Cohle, who was the Chair
  4  of the panel of assessors.  
  5                 And at the previous tab I put the notes of
  6  that interview.  And if you go to page 417 -- I'm sorry,
  7  I'll for the -- for the room I'll give the reference. 
  8  It's PFP1479 -- sorry 147797.  And these pages are
  9  numbered in the top right corner.  It's page 8 of the
 10  document, Mr. Registrar.
 11                 Now I should point out, to be fair, that
 12  this is a summary of what took place at the meeting. 
 13  It's not verbatim.  But you can see Dr. Cohle asks a
 14  question about the timing of the injuries, Dr. Smith's
 15  response, and then towards the bottom of the page, the
 16  last couple of bullets:
 17                   "The real issue is that the mother left
 18                   home eight (8) to nine (9) hours prior
 19                   to the child's death.  She was to come
 20                   back within the hour, but came back
 21                   eight (8) or nine (9) hours later."
 22                 It's just astonishing that five (5) years
 23  later Dr. Smith's takeaway of this case.  With all the
 24  issues about forensic pathology that it involves, that's
 25  his takeaway.

30
  1                 So how can we have confidence, how can Ms.
  2  Waudby have any confidence that Dr. Smith's widening of
  3  the time window in that case early on isn't somehow
  4  connected to this information he was given?  And put in
  5  another way, Mr. Commissioner, isn't that directly
  6  related to issues you have to consider in terms of
  7  recommendations; in terms of information provided to the
  8  forensic pathologist; how that information is documented,
  9  how that information is used?
 10                 Another example of lack of objectivity, in
 11  my submission, is the misuse of the literature on short
 12  falls.  There is a continuing debate over short distance
 13  falls and it's outlined in the Cordner paper that you
 14  have as part of the record.
 15                 And that debate could have been fairly
 16  acknowledged and dealt with by way of scientific analysis
 17  and opinion.  Instead over and over we see in these cases
 18  that Dr. Smith swept the literature away with
 19  generalizations such as the literature is strong on this
 20  point and in the intervening years is even more
 21  definitive.
 22                 And of course lack of objectivity was one
 23  of the issues which troubled Justice Dunn in Amber's case
 24  and which he dealt with directly in his reasons.  In our
 25  submission it's vital that you make findings of fact

31
  1  regarding Dr. Smith's competence, his professionalism,
  2  and his objectivity.  In our submission those findings
  3  are critical for you to make recommendations about the
  4  future. 
  5                 Now that takes me to my third submission;
  6  oversight and accountability.  My submission is that no
  7  one took responsibility for Dr. Smith's errors, nor was
  8  he held accountable.  
  9                 I won't repeat today what is in our
 10  written brief regarding the institutional arrangements. 
 11  Having read some of the response material it -- it seems
 12  to be generally accepted by almost everyone here that
 13  those arrangements were flawed, so let me simply
 14  summarise them.
 15                 Dr. Smith did most of his work for an
 16  organization which did not employ him.  It is unclear who
 17  he reported to or what his reporting obligations were. 
 18  No one appears to have exercised formal oversight over
 19  him.  The people who did exercise informal oversight, Dr.
 20  Cairns, Dr. Young, were poorly suited to that task
 21  because they were not forensic pathologists.
 22                 And we've summarized admissions by Dr.
 23  Cairns in particular to underscore that issue.  Hospital
 24  For Sick Children, Dr. Smith's employer, did not share
 25  concerns it had about Dr. Smith's surgical work with the

32
  1  Chief Coroner's Office, who would have benefited from
  2  that information.
  3                 Dr. Chiasson was not in a position to
  4  exercise oversight of Dr. Smith for various reasons
  5  including his own inexperience, Dr. Smith's attitude, and
  6  the fact that there was no reporting structure.  There
  7  was no line on a box, because there was no box.  The
  8  OPFPU was a virtual unit that existed on no
  9  organizational chart.  
 10                 With respect to quality assurance, for a
 11  significant period there was none.  Dr. Chiasson
 12  attempted to bring Dr. Smith within his regime, but was
 13  unsuccessful for reasons that had little to do with him,
 14  but a lot to do with the limited tools he was given for
 15  that task.
 16                 In effect, during this period from 1991 to
 17  2001, Dr. Smith occupied the small but critical position
 18  within the Coroner's Office, and within that domain he
 19  was ungoverned.  Ungoverned but not ungovernable, and
 20  that's the shame and irony of it.  How easy it would have
 21  been to put parameters and limits and boundaries around
 22  Dr. Smith, but it was never done.  
 23                 I do want to spend a moment on the
 24  symbiotic nature, if I can put it that way, of the
 25  relationship between the Chief Coroner's Office and Dr.

33
  1  Smith.
  2                 And in the document brief I have two (2)
  3  goalposts if I -- if I may refer them that way.  First is
  4  Dr. Smith's CV from 2001, and that's at Tab 1, and it's
  5  PFP095493.  And then at Tab 2 for you, Mr. Commissioner,
  6  I have an extract from my cross-examination of Dr. Cairns
  7  held November 28, 2007, beginning at page 103.
  8                 And that evidence revealed that Dr. Smith
  9  began doing coroner's autopsies in 1981.  He began
 10  lecturing on forensic pediatric pathology in the mid-'80s
 11  on behalf of the Coroner's Office.  By the late 1980s and
 12  early 1990s he'd become a fixture at educational courses
 13  for participants in the criminal justice system.  
 14                 And then you'll see from the extract from
 15  the transcript, starting at page 109, after going through
 16  some of the things Dr. Smith did, I said to Dr. Cairns:
 17                   "And is it fair to say that all of that
 18                   comes -- [this is page 109] all of that
 19                   comes at that time with the assistance
 20                   and encouragement of the Office of the
 21                   Chief Coroner?  That's something you
 22                   office very much wanted him to do?
 23                 And the answer is:
 24                   "This is slightly before my time, but I
 25                   can indicate that yes, the offices of

34
  1                   the Chief Coroner were very interested
  2                   in Dr. Smith getting more and more
  3                   involved."
  4                 And then over the page, of course he
  5  becomes Director of the unit, and this is at page 111. 
  6  And starting at -- I'll start at page 110:
  7                   "And then in 1991 when what we're
  8                   calling the OPFPU is formed at Sick
  9                   Kids, he's made the first director in
 10                   1992, correct?
 11                   A:  Correct.
 12                   So now he has formal status.  He's not
 13                   just Charles Smith, MD, he's running a
 14                   unit, right?
 15                   A:  He's running a unit that's being,
 16                   in fact, supported by funds from our
 17                   office, correct.
 18                   Right.  And it's listed on his resume. 
 19                   If we went back to the beginning it
 20                   would have been on his resume through
 21                   that period?
 22                   A:  Yes.
 23                   And is it fair to say that being
 24                   director of that unit would have
 25                   enhanced his prestige?

35
  1                   I think that's a fair statement."
  2                 And then going over the page, I take Dr.
  3  Cairns through some of the other items in the resume: the
  4  fact that he was going to international conferences that
  5  Dr. Young attended; he was giving lectures to judges. 
  6  And then over to page 113 towards the bottom, it's page 7
  7  of the little extract:  
  8                   "And is it fair to say that throughout
  9                   -- through this period -- and this is a
 10                   period when you were in the Office from
 11                   1991 forward -- that Dr. Young was
 12                   actively assisting Dr. Smith's career.  
 13                   He was.  
 14                   He was promoting him wherever he could,
 15                   isn't that right? 
 16                   A:  That's correct.
 17                   So I guess the point I'm making Dr.
 18                   Cairns is Dr. Smith didn't come out of
 19                   nowhere and become an icon overnight,
 20                   did he?
 21                   That -- that's exactly correct.  
 22                   And his career steps all the way along
 23                   from mid '80s right forward to the
 24                   point we're at now, the mid to late
 25                   '90s, all of these steps were taken

36
  1                   with the active encouragement and
  2                   involvement of the Office of the Chief
  3                   Coroner?
  4                   A:  That's correct.
  5                   And let me suggest to you, one (1) of
  6                   the reasons for that encouragement was
  7                   that it was very useful for your office
  8                   to have someone with this expertise and
  9                   with the stature, isn't that right?
 10                   Correct.
 11                   So for example, in the Nicholas case,
 12                   it was very useful for you to be able
 13                   to go to a meeting with the police and
 14                   bring Dr. Smith along because of his
 15                   credibility and stature?
 16                   Correct.
 17                   And if you had a meeting with the
 18                   children's Aid on that case, you'd be
 19                   able to bring Dr. Smith, again someone
 20                   of stature in the community, correct?
 21                   Correct.
 22                   And the people at the Sudbury
 23                   Children's Aid wouldn't have any way of
 24                   knowing whether any of that expertise
 25                   and credibility was true or false,

37
  1                   would they?
  2                   A:  From their background, no, they
  3                   wouldn't."
  4                 And then over the page to page 127.  This
  5  is page 14 of your extract, middle of that page:
  6                   "But isn't it true that your office had
  7                   a vested interest in Dr. Smith's
  8                   continuing success?
  9                   A:  We had a vested interest in
 10                   continuing to be able to use Dr.
 11                   Smith's services.
 12                   All right.  And if Dr. Smith turned out
 13                   to have feet of clay that would have
 14                   unfavourable impact on your office,
 15                   isn't that right?
 16                   A:  It would have -- it would have an
 17                   unfavourable impact on our office
 18                   because we would be left with someone
 19                   with no expertise, and we'd be lacking
 20                   in something that he possessed that did
 21                   not appear others possessed."
 22                 And then you'll see I persist:
 23                   "Noted.  But to be fair, if Dr. Smith
 24                   turned out to have feet of clay that
 25                   would be highly embarrassing for your

38
  1                   office, would it not?  Having built him
  2                   up, having worked with him over a
  3                   period of in excess of ten (10) years,
  4                   if this individual turned out to have
  5                   feet of clay it would be highly
  6                   embarrassing?"
  7                 And Dr. Cairn's responds:
  8                   "It would depend on why he had feet of
  9                   clay."
 10                 So I would simply suggest that My Friend,
 11  Ms. Fraser, put it in her closing submissions, they
 12  needed him and he needed them.  It was symbiotic
 13  relationship.  
 14                 And that, in my submission, had huge
 15  implications for oversight.  It meant that the Chief
 16  Coroner's Office having had a major role in building up
 17  the reputation of the icon was reluctant to tear it down
 18  because of the ramifications for the reputation of the
 19  Office and for Dr. Young himself.  
 20                 And that helps explain the events in 2001
 21  and beyond when, as we put it, Dr. Smith was being
 22  sheltered and protected by Dr. Young in particular.  
 23                 It's also our submission -- and this will
 24  be shared by others I'm sure -- that the evidence
 25  discloses that the Chief Coroner's Office was not

39
  1  sufficiently independent of the justice system.  It
  2  appears to have seen itself, to some extent at least, as
  3  a resource for the prosecution side or the child
  4  protection side of the system.  And the two (2) examples
  5  that we've given you that we focussed on are Dr. Cairn's
  6  filing an affidavit in the Nicholas case, and his
  7  knowledge of Dr. Smith's meeting with the family member
  8  in the Barrie case.  
  9                 In Nicholas, the troubling fact is not so
 10  much that Dr. Cairns was not an expert and shouldn't have
 11  filed that affidavit; he wasn't qualified, that's not the
 12  issue.  The issue is that it was inappropriate for the
 13  Deputy Chief Coroner to be taking a direct position in
 14  child protection proceedings in an individual case.
 15                 And given Dr. Cairns' admitted lack of any
 16  forensic pathology training one can only characterize it
 17  as an example of noble cause corruption; the means
 18  justified the end.  
 19                 In the Barrie case it's troubling, of
 20  course, that Dr. Smith didn't have a problem meeting with
 21  the family member with a wiretap in the room.  It's
 22  deeply troubling. But it's more troubling, in my
 23  submission, that Dr. Cairns understood that was happening
 24  and doesn't appear at the time to have recognized that it
 25  was problematic.

40
  1                 And one could add to that the Athena case
  2  where the post-mortem was withheld by the Chief Coroner's
  3  Office from the family until the police could wiretap the
  4  hotel room where the family were staying, so that they
  5  could gauge their reaction to what was in the report.
  6                 So we say that the Chief Coroner's Office
  7  lacked independence, and that of course is something you
  8  have to consider when thinking about governance for the
  9  future. 
 10                 As problems began to emerge about Dr.
 11  Smith, as they began to bubble to the surface, they
 12  weren't perceived as problems or they were minimized.
 13                 And take Justice Dunn's decision itself,
 14  drawn to Dr. Young's attention several times, once by one
 15  of my clients, and that's the -- the submission that Mr.
 16  Gagnon wrote and it's in my little brief at Tab 5.  And
 17  he quotes in that brief from the decision.
 18                 And you'll see it, for example, at -- this
 19  is PFP008359, and there's a number of references starting
 20  at page 16.  Pretty hard to avoid reading if you go
 21  through pages 16 through to page 19.  Mr. Gagnon's
 22  actually gone to the trouble of italicizing the extracts
 23  from Justice Dunn's decision.   
 24                 Well, according to My Friends from OCCO
 25  the Justice Dunn's decision didn't resonate with Dr.

41
  1  Young.  That's the phrase they use: "resonate."  And that
  2  simply sidesteps, in my submission, the real question
  3  which is:  Why didn't it resonate?  Why?  
  4                 Similarly in the Nicholas case, once the
  5  decision of Mary Case was received, making it clear that
  6  there were no findings to support Dr. Smith's opinion,
  7  why didn't that resonate?
  8                 Dr. Young tells us that he took the
  9  decision seriously -- sorry, took the opinion seriously. 
 10  He had Dr. Smith in for a chat.  He told him he shouldn't
 11  be on the leading edge, he should be hugging the trunk. 
 12  And you'll recall that evidence.
 13                 But that's not was Mary Case's opinion was
 14  all about.  It wasn't about Dr. Smith being at the
 15  leading edge, it was about basic competence and lack of
 16  objectivity.
 17                 And in the Sharon case, once the cast had
 18  been lost and the exhumation had taken place and there
 19  had been the meeting in the United States, once all of
 20  that had unfolded, and we accept that Dr. Cairns and Dr.
 21  Young acted properly in coming back from that meeting and
 22  taking some steps, but after all of that unfolded and the
 23  exhumation took place, one has to wonder why at that
 24  point some alarm bells didn't go off at the Chief
 25  Coroner's Office.  Now three (3) cases, Amber, Nicholas,

42
  1  Sharon, where there are serious questions about the work
  2  done by this individual.
  3                 It's also disturbing that the Jenna case -
  4  - completely below Dr. Young's radar.  He has no idea, he
  5  told us, what was going on in that case; no idea that Dr.
  6  Porter had prepared an opinion; no idea that Dr. Smith
  7  had deferred to Dr. Ein; no idea that the charges had
  8  been withdrawn.
  9                 So the point I'm making is that the fact
 10  that these events didn't resonate with Dr. Young is
 11  hardly an explanation or an excuse.  
 12                 Eventually, of course, the problems grew
 13  to the point where they were impossible to avoid.  And in
 14  January 2001 that lead Dr. Young, for the first time, to
 15  take some concrete steps and he suspended Dr. Smith from
 16  the performance of autopsies in criminally suspicious
 17  cases.
 18                 But I suggest that Dr. Young's explanation
 19  of this in his evidence is quite illustrative.  This is
 20  what he said:
 21                   "Dr. Smith had become an enormous
 22                   lightening rod and would benefit from
 23                   time away.  Everything he did from that
 24                   point forward would attract undue
 25                   attention, and that was a problem both

43
  1                   for the Office and for him."
  2                 And you -- you may recall, Mr.
  3  Commissioner, you yourself asked Dr. Young whether the
  4  decision was about competence or effectiveness and Dr.
  5  Young said, "effectiveness."  In other words, the
  6  decision was made in order to quell controversy.  It
  7  wasn't made because of any underlying concerns about
  8  competence, professionalism, or objectivity of Dr. Smith.
  9                 Now perhaps alone, of the parties in this
 10  room, I have attempted in the written submission to
 11  summarize the reviews of Dr. Smith -- Dr. Smith's work,
 12  considered or conducted by the Chief Coroner's Office in
 13  2001.  I will not do so here, and you may be glad to hear
 14  that.  
 15                 But let me suggest this, and I did suggest
 16  this to Dr. Cairns in his evidence, throughout this
 17  period the operating policy of Dr. Young was obfuscation. 
 18  His conduct was designed to protect the reputation of the
 19  Office and of his own reputation while also giving
 20  shelter and protection to Dr. Smith, at least up to the
 21  point where that became untenable, once the Valin case
 22  began to unravel in 2003.
 23                 At Tab 9 in the brief is the press release
 24  in the Sharon case -- relating to the Sharon case --
 25  PFP043561.  And that's the press release where -- sorry,

44
  1  it's a newspaper article where Dr. Young tells a reporter
  2  there's going to be a review.
  3                 And I won't take you through it, but all I
  4  can say is that one shakes one's head in wonder at the
  5  smoke laid across this trail in the months that followed
  6  until the so-called review was quietly cancelled.  And as
  7  for the internal review conducted by Dr. Cairns, that
  8  ended up being the subject of the testimony in the
  9  Kporwodu case, the evidence  -- and we've summarized it
 10  in our brief -- suggests it really was a whitewash.  It
 11  was not a bona fide review.
 12                 And you'll recall Justice McMahon's
 13  evidence and his surprise that the review was not in-
 14  depth, and it didn't consider the possibility of wrongful
 15  convictions. 
 16                 But, you know, if we left it in 2001, that
 17  would be something, but of course we know there's more. 
 18  We know that Dr. Cairns and Dr. Young became aware of Dr.
 19  Smith's explanation for his taking the hair in the Jenna
 20  case and putting it in his desk.
 21                 And you heard evidence about the meeting
 22  Dr. Cairns had with Dr. Smith and his wife in early 2002,
 23  and you heard him say, quite candidly, that at the end of
 24  that meeting he simply did not believe Dr. Smith's
 25  explanation for those events.  And he briefed Dr. Young

45
  1  and Dr. Young acknowledged to me that the issue of the
  2  hair raised serious questions about Dr. Smith's
  3  competence, his veracity, and potentially obstruction of
  4  justice.  
  5                 And it was in that context that Dr. Young
  6  wrote the letter to the College that's -- it's in Tab 10
  7  of the brief, PFP144922.  It's almost incomprehensible
  8  that given what was known to the Chief Coroner and his
  9  deputy at this point in time that this letter was
 10  actually signed and delivered.  
 11                 And I want to just refer briefly, if I
 12  may, to a transcript reference.  And I'm just going to
 13  hand up a printed copy of it, Mr. Commissioner.
 14                 COMMISSIONER STEPHEN GOUDGE:   Thank you.
 15                 MR. PETER WARDLE:   This is from the
 16  cross-examination of the College witnesses on January
 17  16th, and it's my cross-examination.  It starts at page
 18  211.  
 19                 And I asked Ms. Doris and Dr. Gerace some
 20  questions about this letter, and I just want to take you
 21  through the questioning that starts at page 211.  
 22                   "So now, Ms. Doris, we're in the
 23                   process that's leading up to the
 24                   meeting of Dr. Smith with -- in June of
 25                   2002 with the panel of assessors, or at

46
  1                   least the chair of that panel, and this
  2                   letter comes into you from Dr. Young,
  3                   and do you recall receiving this
  4                   letter?  
  5                   I have seen this letter, yes.  
  6                   It appears to have been one (1) of the
  7                   documents that was provided to the
  8                   Complaints Committee, and the reason I
  9                   know that is because it's in the index
 10                   of documents for the Complaints
 11                   Committee.  And I can take you to that
 12                   if you don't trust me on that, but --
 13                   No, it's not necessary.
 14                   All right.  Do you know if this -- do
 15                   you know if this letter was provided to
 16                   the panel of assessors?
 17                   A:  I would have to look through the
 18                   indexes that -- the indices that went
 19                   to the panel of assessors before I
 20                   answer that."
 21                 And then you'll see there's a reference to
 22  Mr. Centa. 
 23                   "But just looking at this letter, did
 24                   you know at the time you received this
 25                   letter, since January of 2001, Dr.

47
  1                   Smith has not been allowed by the
  2                   Office of the Chief Coroner to conduct
  3                   coroner's autopsies in criminally
  4                   suspicious cases?
  5                   A:  I did not know that.
  6                   And is it fair to say that when you
  7                   read through this letter that that
  8                   information is in no way communicated
  9                   by Dr. Young, correct?
 10                   A:  Correct.
 11                   Nor does -- not -- Dr. Young
 12                   communicate that his Office has any
 13                   concerns about Dr. Smith's performance
 14                   or competence, correct?
 15                   Correct.
 16                   In fact, would it also be fair to say
 17                   that anyone reading this letter would
 18                   say that the Office of the Chief
 19                   Coroner effectively stands behind their
 20                   pathologists, is that fair?"
 21                 And then she rereads the letter, I
 22  rephrase the question:
 23                   "Generally speaking, it's a supportive
 24                   letter?
 25                   A:  Yeah.  Yes, it is.

48
  1                   And anyone reading it would think that
  2                   the Office of the Chief Coroner has no
  3                   issues surrounding Dr. Smith's
  4                   competence or performance of his job
  5                   functions?
  6                   Yes.
  7                   And would you agree with me, Ms. Doris,
  8                   that if you'd received information at
  9                   that time, that in fact Dr. Smith was
 10                   no longer performing coroner's
 11                   autopsies in criminally suspicious
 12                   cases that would have lead you to take
 13                   other steps, correct?
 14                   A:  I would have concluded that in -- I
 15                   would have included that information in
 16                   my investigative report.
 17                   And you, for example, might have wanted
 18                   to interview Dr. Young's or Dr.
 19                   Cairn's, correct, and find out what was
 20                   going on with Dr. Smith at the
 21                   Coroner's Office, correct?
 22                   That's possible.
 23                   And, Dr. Gerace, if I could direct this
 24                   question to you, would you agree with
 25                   me that had that information made its

49
  1                   way to the Complaints Committee that
  2                   would have been information that would
  3                   have been relevant to their
  4                   determinations?
  5                   A:  Yes.
  6                   In fact, highly relevant depending on
  7                   the circumstances, correct?
  8                   I think -- I think the fact that we --
  9                   the facts that we now know surrounding
 10                   this letter, the fact that -- that
 11                   firstly, it was written by counsel for
 12                   another party and signed by Dr. Young,
 13                   secondly, that there known concerns
 14                   around the performance of Dr. Smith at
 15                   the time, and thirdly, that the
 16                   concerns that had been presented to the
 17                   Coroner's Office via the college thus
 18                   far had not been considered fully.  All
 19                   of those points would have prompted a
 20                   great deal of concern to me in respect
 21                   of this letter.  
 22                   Is it -- is it fair to say, Dr. Gerace,
 23                   that in re -- retrospect this letter is
 24                   somewhat misleading?
 25                   A  I -- I find this letter somewhat

50
  1                   disappointing in -- for the reasons
  2                   that I stated."
  3                 And that really says it all, doesn't it?  
  4                 So to end this section of my submissions I
  5  ask this question parenthetically:  Why did -- why -- why
  6  did things take place this way?
  7                 Well, in my submission there are a number
  8  factors.  
  9                 First, lack of understanding of the
 10  problems, of the nature of the problems with Dr. Smith. 
 11  To give Dr. Cairns and Dr. Young their due, they didn't
 12  have the right tools, they were not forensic
 13  pathologists, and they may have had a limited
 14  understanding of some of the problems. 
 15                 Secondly, the symbiotic nature of the
 16  relationship.  The fact that they needed each other and
 17  that these two (2) individuals, particularly Dr. Young,
 18  had played an important role in mentoring and assisting
 19  Dr. Smith's career.
 20                 Third, the consequence of critical
 21  oversight for the organization and for its reputation;
 22  the adverse publicity for, at least with respect to Dr.
 23  Cairns, the icon status that Dr. Smith had attained.  
 24                 And finally, the desire to protect a
 25  professional colleague and friend.

51
  1                 And in my submission you have to get to
  2  the bottom of this to really understand what took place,
  3  why it too place, and how that assists us in going
  4  forward.  
  5                 So having made this tour through the
  6  evidence let me turn then to recommendations.  And in a
  7  couple of places here I'll be referring to some of the
  8  recommendations found in the materials submitted by My
  9  Friends, on behalf of the Office of the Chief Coroner.
 10                 If you could turn up our written
 11  submissions, Mr. Commissioner, and the recommendations
 12  are at the end.  And they start at page 78 and I'll take
 13  you -- the first one I want to deal with, this really
 14  starts at page 79, I'm going to deal with the question of
 15  governance and deal with three (3) specific topics:
 16  changes to the Coroner's Act, governing counsel, and
 17  disbanding the OPFPU.
 18                 First of all, with respect to changes to
 19  the Coroner's Act, we've reviewed the changes proposed by
 20  the Chief Coroner's Office and our submissions are
 21  somewhat more extensive, and I wanted to draw two (2) to
 22  your attention.
 23                 In paragraph three hundred and -- three-
 24  fourteen (314) we've outlined what in our submission
 25  should be in a revised Coroner's Act.  On some of this --

52
  1  on much of this we're on common ground with others here,
  2  but with respect to "D" in particular our submission is
  3  that the responsibilities of pathologists conducting
  4  post-mortem examination should be made explicit in the
  5  statute.  And that's a change that doesn't appear to be
  6  recommended by the Coroner's Office in their own
  7  recommendations.
  8                 And the importance of it is because the
  9  existing statute is woefully inadequate.  You know if
 10  you've read section 28, as I'm sure you have, and I've
 11  had occasion to mean it -- read it many times, including
 12  before this -- these proceedings began, it's -- it's
 13  woefully inadequate.
 14                 So if there are going to be these changes
 15  and if there is a groundswell, for example, to in -- to
 16  make the role of the Chief Forensic Pathologist in the
 17  legislation in detail, surely to goodness the statute
 18  should outline specifically what the pathologist
 19  conducting a post-mortem examination is to do.  
 20                 And I should tell you that the words used
 21  here we took from Dr. Pollanen's 2007 autopsy guidelines. 
 22  
 23                 COMMISSIONER STEPHEN GOUDGE:   The words
 24  used in "D"?
 25                 MR. PETER WARDLE:   The words used in "D".

53
  1                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
  2                 MR. PETER WARDLE:   Now, secondly, at page
  3  -- paragraph 355, which is a little further on, dealing
  4  with the role of the family.  
  5                 COMMISSIONER STEPHEN GOUDGE:   Before you
  6  leave that, Mr. Wardle --
  7                 MR. PETER WARDLE:   Yes?
  8                 COMMISSIONER STEPHEN GOUDGE:   -- I take
  9  it your rationale for including it in the Act is what you
 10  viewed to be its high level of importance, as opposed to
 11  leaving it for some lower level of either legislative
 12  device or guideline?
 13                 MR. PETER WARDLE:   Correct.  It shouldn't
 14  -- you know, the -- the proposal, as I understand it, of
 15  the Coroner's Office that it would be left in a
 16  guideline.  The Chief Forensic Pathologist would have the
 17  responsibility under statute of promulgating the
 18  guideline, but that particular issues would be left to a
 19  guideline.
 20                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
 21                 MR. PETER WARDLE:   And second point --
 22  and this is --
 23                 COMMISSIONER STEPHEN GOUDGE:   I take it
 24  your vision though is that ultimately it would be the
 25  Chief Forensic Pathologist that would have in effect the

54
  1  ultimate responsibility for individual reports, although
  2  not authoring them?
  3                 MR. PETER WARDLE:   Correct.
  4                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
  5  Sorry.
  6                 MR. PETER WARDLE:   The second
  7  recommendation dealing with legislative change is found
  8  in paragraph 355, and this access by the family to the
  9  post-mortem report.  And you'll recall that Section 28
 10  right now has a limited number of recipients for that
 11  report.  
 12                 It appears to be acknowledged in the Chief
 13  Coroner Office's submissions that family members are a
 14  client group or a stakeholder for OCCO.  I must say a
 15  appear -- I use appear -- appear to be because I couldn't
 16  find it explicitly set out in the closing submissions,
 17  but there is a definition found in a footnote of Client
 18  Group.  
 19                 And it seems to us that the legislation
 20  should provide explicitly for the right of the family to
 21  get the post-mortem report.  
 22                 COMMISSIONER STEPHEN GOUDGE:   At what
 23  stage?
 24                 MR. PETER WARDLE:   Immediately.  
 25                 COMMISSIONER STEPHEN GOUDGE:   How do you

55
  1  balance --
  2                 MR. PETER WARDLE:   If -- if --
  3                 COMMISSIONER STEPHEN GOUDGE:   How do you
  4  balance that and the police investigation where a family
  5  member may be a suspect?
  6                 MR. PETER WARDLE:   I -- I think first of
  7  all you say, OCCO is -- should not be -- they should be
  8  completely divorced from the police investigation.  It
  9  should not be a consideration for OCCO as it has been in
 10  the past.  If OCCO is to be truly independent of the
 11  police and the Crown, as My Friends for example as
 12  suggesting, this should not be a factor in that equation.
 13                 COMMISSIONER STEPHEN GOUDGE:   Okay.  It
 14  may not be for -- let me just play devil's advocate for a
 15  moment -- it may not be for the OCCO to decide that
 16  balance.  
 17                 Do you acknowledge there is a balance
 18  there?
 19                 MR. PETER WARDLE:   I don't acknowledge
 20  that there's a balance.  My view is that it's a document
 21  that -- that is important -- it's -- that the rights of
 22  the families and a family member should be respected, and
 23  it's something they need to have.  
 24                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
 25                 MR. PETER WARDLE:   And -- and you have an

56
  1  evidentiary foundation, in my submission, to make that
  2  kind of finding.
  3                 COMMISSIONER STEPHEN GOUDGE:   Right,
  4  right.
  5                 MR. PETER WARDLE:   Let me turn then to
  6  the governing counsel.  There seems to be almost a
  7  consensus by many of the parties that there needs to be a
  8  body like a governing counsel.  And -- and My Friends
  9  from the Chief Coroner's Office have obviously put a lot
 10  of time into their proposal, which I've reviewed.  
 11                 My only criticism, and it's a -- it's a
 12  small, but important one, deals with who would be
 13  represented.  And if you turn up the OCCO submissions, at
 14  page 190.
 15                 COMMISSIONER STEPHEN GOUDGE:   I do not
 16  have them here, but I --
 17                 MR. PETER WARDLE:   All right.
 18                 COMMISSIONER STEPHEN GOUDGE:   -- I have
 19  got them pretty well committed to memory as I have with
 20  all the submissions.  I've read them so many times.
 21                 MR. PETER WARDLE:   I'm sure you have them
 22  committed to memory, Mr. Commissioner.
 23                 COMMISSIONER STEPHEN GOUDGE:   Do not test
 24  me on that, Mr. Wardle.
 25                   MR. PETER WARDLE:   But you'll see that

57
  1  -- you'll see that they've outlined a number of
  2  stakeholders who should participate in the council.  And
  3  -- and a lot of these are very good ideas.  
  4                 They've suggested, for example, the Chief
  5  Forensic Pathologist is an ex-officio member of the
  6  Director of Quality, which is something -- we're on the
  7  same page as an ex-officio member.  
  8                 President and CEO of a health care
  9  corporation.  I'm not quite sure where that comes from. 
 10                 Dean of Medicine of an Ontario Medical
 11  School.  Hard to quarrel with that. 
 12                 Nominee of the Minister of Health and Long
 13  Term Care.
 14                 Nominee of the Attorney General.
 15                 But there's nothing really very specific
 16  about families for children.  And if families -- families
 17  of deceased individuals are stakeholders, there should be
 18  some effort made to make sure that their rep -- their
 19  interests are represented here.  I'm not sure of the best
 20  way to do it, but simply having four (4) members of the
 21  public nominated by the chair and appointed by the
 22  Lieutenant Governor and Council, in my submission,
 23  doesn't do it.
 24                 I'm sure you're going to hear from others
 25  present that not having the Defence Bar represented, or

58
  1  an organization like AIDWYC, that's another useful
  2  suggestion to try and balance this group.
  3                 COMMISSIONER STEPHEN GOUDGE:   It would be
  4  one (1) of the issues I am clearly going to have to
  5  grapple with on this particular issue is the concept of a
  6  stakeholder council.
  7                 MR. PETER WARDLE:   Yeah.
  8                 COMMISSIONER STEPHEN GOUDGE:   If you look
  9  at the Victoria Institute as example, to take a paradigm
 10  that is a little different, there is not that much
 11  stakeholder involvement.  Meaning by stakeholder: private
 12  interests, Defence Bar, Crown, families, et cetera.
 13                 Should this be a stakeholder built
 14  organization, a council?
 15                 MR. PETER WARDLE:   Well, I think the best
 16  way to answer that is what are we trying to -- what
 17  problem are we trying to fix?  And it seems to me that
 18  we're trying to fix an issue of culture.  We're trying to
 19  make sure that this organization is independent and has
 20  the right corporate culture.  And I'm just concerned that
 21  it is balanced and it represents the interests of all
 22  stakeholders in doing that.
 23                 COMMISSIONER STEPHEN GOUDGE:   Again, to
 24  play the devil's advocate, one (1) consequence that at
 25  least is potential for a stakeholder driven council is

59
  1  internal division with no ability to resolve those
  2  conflicts.
  3                 MR. PETER WARDLE:   I understand that. 
  4  But I'm -- I'm not sure that's better than the
  5  alternative.
  6                 COMMISSIONER STEPHEN GOUDGE:   Take a
  7  council that has Crown and defence on it, to take an
  8  obvious example of interests that could be opposed.
  9                 MR. PETER WARDLE:   But this is a fairly
 10  large group.
 11                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
 12                 MR. PETER WARDLE:   And simply having, you
 13  know, a representative of a defence organization on a
 14  fairly large board, I wouldn't have thought is going to
 15  lead to a deadlock, for example.
 16                 COMMISSIONER STEPHEN GOUDGE:   Okay.  So
 17  and you say a stakeholder be family inclusion.  How does
 18  one get that?
 19                 MR. PETER WARDLE:   I'm not sure.  I --
 20  and it may be, for example, an office like the Office of
 21  the Child Advocate.  It may be -- it may be something
 22  built in to make sure that there's some --
 23                 COMMISSIONER STEPHEN GOUDGE:   I take it
 24  you do not mean necessarily by that, representative of
 25  families who have been affected --

60
  1                 MR. PETER WARDLE:   No.
  2                 COMMISSIONER STEPHEN GOUDGE:   --
  3  necessarily?
  4                 MR. PETER WARDLE:   No.  
  5                 COMMISSIONER STEPHEN GOUDGE:   All right. 
  6                 MR. PETER WARDLE:   I just want to make
  7  sure this group is balanced --
  8                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
  9                 MR. PETER WARDLE:   -- because we've had a
 10  --
 11                 COMMISSIONER STEPHEN GOUDGE:   Fair
 12  enough.
 13                 MR. PETER WARDLE:   -- problem in the past 
 14  and --
 15                 COMMISSIONER STEPHEN GOUDGE:   Fair
 16  enough.
 17                 MR. PETER WARDLE:   -- we need to...
 18  
 19  CONTINUED BY MR. PETER WARDLE:
 20                 MR. PETER WARDLE:   All right, third, I
 21  will stand up for the submission which is the disbanding
 22  of the OPFPU.  And I'm supported in that submission by
 23  Dr. Cutz who -- I'll just refer you to his submissions,
 24  if I can find them.
 25                 COMMISSIONER STEPHEN GOUDGE:   It was very

61
  1  similar to his evidence?
  2                 MR. PETER WARDLE:   Very similar, and his
  3  submissions are at PFP176 --
  4                 COMMISSIONER STEPHEN GOUDGE:   Right.
  5                 MR. PETER WARDLE:   -- 274.
  6                 COMMISSIONER STEPHEN GOUDGE:   Right.
  7                 MR. PETER WARDLE:   And I'll simply say
  8  that much of the evidence you've heard suggests that
  9  there is substantial benefits to having the autopsies of
 10  child deaths that are criminally suspicious done in one
 11  (1) central location.
 12                 We don't really care -- and I shouldn't
 13  say we don't really care, but it's not our place to make
 14  suggestions as to how non-criminally suspicious autopsies
 15  should be done.  There's no reason why those shouldn't
 16  continue to be done at the Hospital for Sick Children,
 17  but we believe that the evidence suggests that criminally
 18  suspicious cases should be done in one (1) central
 19  location.
 20                 We have a situation now where we have a
 21  forensic pathologist at Hospital for Sick Children.  That
 22  may not always be the case in the future.  
 23                 So let me turn to conduct at the autopsy.
 24                 COMMISSIONER STEPHEN GOUDGE:   Well,
 25  before you leave that I have a couple of questions to ask

62
  1  you.  In terms of the -- how can I put it -- one (1) of
  2  the issues you raise is that the council should have
  3  under its jurisdiction the creation of a charter of
  4  bereaved persons.  
  5                 How do you see that evolving and what do
  6  you see it covering?
  7                 MR. PETER WARDLE:   I see it cover basic
  8  communications between coroners; anyone involved in the
  9  death investigation process and a family member.  I was
 10  struck by something that actually I read over the weekend
 11  and I couldn't find the exact reference, but I know it's
 12  in the material.  
 13                 It's a -- one (1) of my clients had a --
 14  Mr. Gagnon had a meeting with Dr. Cairns after the police
 15  investigation was complete in Nicholas' case in --
 16  involving Nicholas' mother, but before the Children's Aid
 17  investigation really got underway, so it was -- it was
 18  sort of between December and May.
 19                 COMMISSIONER STEPHEN GOUDGE:   Yes.
 20                 MR. PETER WARDLE:   And at that meeting he
 21  came -- he met with Dr. Cairns to express his concerns
 22  about, you know, what had happened and asked whether
 23  there was an explanation for the death and there's --
 24  there's a memo that he wrote that outlines their
 25  conversation.  And -- and that conversation took place

63
  1  within a month of Dr. Cairns going up and meeting with
  2  the Children's Aid to persuade them that they should be
  3  taking child protection proceedings against the mother.
  4                 And it -- it's just the kind of -- Dr.
  5  Cairns obviously felt that he had to meet with Mr.
  6  Gagnon, but the conduct, in my submission, is deplorable,
  7  and that's the kind of conduct that needs to be covered
  8  in future.  And that's -- that's just one (1) example.
  9                 COMMISSIONER STEPHEN GOUDGE:   But is it -
 10  - is the basic thrust of this, Mr. Wardle,
 11  communications?
 12                 MR. PETER WARDLE:   The basic thrust of it
 13  is communications.
 14                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
 15  Okay, thanks.  Okay, sorry, over to the autopsy and its
 16  conduct.
 17                 MR. PETER WARDLE:   All right.  Many of
 18  the recommendations that have been made about the conduct
 19  of the autopsy are similar with respect to documentation,
 20  documentation of what, you know, the -- the pathologist--
 21                 COMMISSIONER STEPHEN GOUDGE:   The
 22  incoming and the outgoing.
 23                 MR. PETER WARDLE:   Incoming and out
 24  coming.  We all have the same --
 25                 COMMISSIONER STEPHEN GOUDGE:   Right.

64
  1                 MR. PETER WARDLE:   -- similar
  2  recommendations.  I'm not going to --
  3                 COMMISSIONER STEPHEN GOUDGE:   It's --
  4                 MR. PETER WARDLE:   -- I'm not going cover
  5  those.
  6                 COMMISSIONER STEPHEN GOUDGE:   Okay.
  7                 MR. PETER WARDLE:   All right.  But I have
  8  two (2) specific recommendations made relating to my pet
  9  peeve: confirmation bias, and tunnel vision.  And those
 10  are in paragraphs 317 and 319.  
 11                 The autopsy guidelines today don't deal
 12  with this concept at all directly; they certainly deal
 13  with it in -- indirectly in many ways, and our
 14  recommendation is that they should; that there should be
 15  something specific in the 2007 or 2008, I guess, autopsy
 16  guidelines, the post-Inquiry guidelines, that deals
 17  directly with this issue and warns forensic pathologists
 18  about the dangers.  It's a simple recommendation.  
 19                 The post-mortem report, again we're on the
 20  same page here with many others, and in fact, many of the
 21  things that we've outlined here have already been changed
 22  and are taking place under Dr. Pollanen.
 23                 I want to make -- I want to draw one (1)
 24  specific recommendation to your attention and that is
 25  paragraph 326.

65
  1    
  2                       (BRIEF PAUSE)
  3  
  4                 MR. PETER WARDLE:   You obviously have to
  5  struggle with the language issue, and how language is
  6  used, and you've heard a lot of evidence about that.  And
  7  I'm not sure I can be of great help on that, but I -- I
  8  do want to draw your attention to the last sentence of
  9  that paragraph.
 10                   "That's something that should be
 11                   specifically set out in a guideline."  
 12                 And it -- and I was struck, in preparing
 13  our submissions, thinking about Tyrell's case, and the
 14  opinion of Dr. Humphrey's.  And again it's in our -- it's
 15  in our brief, but Dr. Humphrey looked at the explanation
 16  of the caregiver, and simply took it at face value.  He
 17  didn't make any judgments about it; whether it was true,
 18  or it was false.  He just said, Okay, if this was the
 19  case, then does it fit? And he says, It could fit.  
 20                 And it's a very matter of the fact way of
 21  dealing with it, and it seems to me that that kind of
 22  exercise needs -- it -- it needs to be mandated.  
 23                 Testimony --
 24                 COMMISSIONER STEPHEN GOUDGE:   I have one
 25  (1) other --

66
  1                 MR. PETER WARDLE:   Yes.
  2                 COMMISSIONER STEPHEN GOUDGE:   -- one (1)
  3  little question for the conduct of the autopsy, and it's
  4  the peer review that you propose in the most difficult
  5  cases, at paragraph 336.
  6                 I just want to make sure, I take it --
  7                 MR. PETER WARDLE:   I'm going to come back
  8  to that in a minute.
  9                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
 10  Okay.
 11                 MR. PETER WARDLE:   Let me deal with
 12  testimony.  We support guidelines.  From the evidence
 13  we've heard, and from some of the academic papers that
 14  have been submitted, those guidelines should be as broad
 15  as possible. And the CPSO, as I read their written
 16  submissions, they're prepared to consider seriously
 17  drawing up guidelines for expert medical witnesses.
 18                 And in the materials submitted by AIDWYC,
 19  are some very useful examples from the United States. 
 20  We've simply outlined here what these guidelines should
 21  cover, and that's in paragraph 329.
 22  
 23                       (BRIEF PAUSE)
 24  
 25                 COMMISSIONER STEPHEN GOUDGE:   Okay. 

67
  1  Thanks.
  2                 MR. PETER WARDLE:   Quality Assurance.  We
  3  are very pleased to see the idea in the Chief Coroner's
  4  submissions about a director -- I think that's the right
  5  term -- a director of quality assurance, because we -- we
  6  think there should be a specific position within OCCO,
  7  and -- and it shouldn't just fall to the Chief Forensic
  8  Pathologist.  There should be somebody -- and they should
  9  elevate it to a level of visibility within the
 10  organization.
 11                 We made some specific recommendations at
 12  paragraphs 334 and following, and I must say, these do
 13  not fit neatly with what Dr. Pollanen is doing right now,
 14  in terms of peer review; they were based really on the
 15  Australian practice.  And the suggestion in paragraph 336
 16  -- somebody's made a -- a criticism of this in their
 17  submissions, and I think the criticism is accurate.  It
 18  really shouldn't be the role of the Chief Forensic
 19  Pathologist to determine whether a second opinion is
 20  necessary.
 21                 But the concept I was trying to get across
 22  was that in these -- you know, if you take the -- the --
 23  the numbers we're all familiar with, five (5) to fifteen
 24  (15) cases a year, there's going to be a smaller subset
 25  of that case -- of those cases, maybe a very small

68
  1  subset, where the forensic pathology evidence is it.
  2                 And in those cases, surely there should be
  3  some guideline, and perhaps it's a guideline, or a
  4  recommendation directed to the Crown, that says to the
  5  Crown you need to get a second opinion before you lay a
  6  charge based only on this evidence.
  7                 COMMISSIONER STEPHEN GOUDGE:   Is that the
  8  vital issue, or is the outside the province sourcing of
  9  it the vital issue?  I take it you are more concerned
 10  with getting a second opinion --
 11                 MR. PETER WARDLE:   More -- more concerned
 12  with getting a second opinion.
 13                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
 14  Thanks.  That was the question I had for you about that
 15  paragraph.
 16                 MR. PETER WARDLE:   Okay.  So let me turn
 17  to  -- again, some of our submissions relating to the
 18  role of police are going to be covered by others.  I want
 19  to turn to the complaints process.
 20  
 21                     (BRIEF PAUSE)   
 22  
 23                 MR. PETER WARDLE:   And just one (1) last
 24  reference to the brief.  If -- if you remember Mr.
 25  Gagnon's letter, the Coroner's Council complaint, at the

69
  1  very end of it -- this is at Tab 5, PFP008359 -- Mr.
  2  Gagnon -- at the last page, it's page 20 of the document
  3  -- he says:
  4                   "I asked that the Coroner's Council
  5                   render Dr. Smith accountable for his
  6                   actions." 
  7                 And I read that as -- as suggesting that
  8  there should be consequences.  Accountability involves
  9  consequences.  The proposal on the table from the Office
 10  of the Chief Coroner for a complaints process doesn't do
 11  that.  It doesn't have teeth.
 12                 As I read it -- and I may be reading it
 13  wrong -- but it's a committee that would have a limited
 14  mandate and no ability to hold anyone accountable.  It --
 15  it could stream things in various directions, it could
 16  make determinations, but the only effective powers it
 17  would have would be to order remedial measures.
 18                 And it seems to us there needs to be
 19  something in addition.  And what that could be, without
 20  ousting the mandate of the CPSO, it could simply be the
 21  power of this committee to suspend someone or take them
 22  off the roster.
 23                 COMMISSIONER STEPHEN GOUDGE:   To suspend
 24  from the register --
 25                 MR. PETER WARDLE:   Yeah.

70
  1                 COMMISSIONER STEPHEN GOUDGE:   -- or take
  2  them off the register?
  3                 MR. PETER WARDLE:   Yeah.
  4                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
  5                 MR. PETER WARDLE:   And we don't have a
  6  problem with overlapping jurisdiction, and that there are
  7  certain cases that will have to go to the CPSO, but if
  8  there's going to be a complaints mechanism associated
  9  with this new organization, it should have some teeth.
 10                 All right.  So let me turn last -- I see
 11  I've timed it just perfectly -- to compensation.  And let
 12  me say this first: your mandate, Mr. Commissioner,
 13  extends to making recommendations to restore and enhance
 14  public confidence in pediatric forensic pathology.  Our
 15  recommendations on compensation are found right at the
 16  end, at paragraphs 362 and following.  
 17                 My submission is, that public confidence
 18  has suffered precisely because of the consequences of the
 19  injustices in these individual cases.  Precisely because
 20  the public is aware that errors in pediatric forensic
 21  pathology had real consequences for specific individuals. 
 22                 So my submission is that you can't fulfill
 23  your mandate unless you deal with that issue.  You'd be
 24  leaving your mandate unfulfilled.  
 25                 Let me put it another way.  It would be,

71
  1  in my submission, absurd and inequitable for you to make
  2  recommendations to the Government of this province about
  3  long term funding for a new improved coroner's
  4  organization, and leave on the sidelines the very
  5  individuals whose cases, whose tragedies, have brought us
  6  here to begin with.
  7                 The suggestion by the province, in their
  8  written submissions, that these cases and this issue is
  9  best left to, and I'll just quote, "Established
 10  processes, such as civil actions, arbitrations, or
 11  meditations," in my submission, is the polite equivalent
 12  to go-fish for these families.  
 13                 Now you can't make recommendations in
 14  individual cases.  Your mandate prevents you from doing
 15  that. And that's why we haven't had any evidence about
 16  the individual cases.  But with all due respect to My
 17  Friends on behalf of the province, that's not what we're
 18  recommending.
 19                 And you'll see in paragraph 363, that
 20  we're simply suggesting that there be a process.  We're
 21  suggesting who should be included in the process.  We're
 22  not suggesting specific individuals or families.  It
 23  would be up to an assessment officer at the end of the
 24  day to make that determination.
 25                 COMMISSIONER STEPHEN GOUDGE:   The

72
  1  province, I take it, says I cannot even do that as a
  2  matter of structuring of the Order in Council, that the
  3  Order in Council essentially means existing institutions
  4  are what should deal with compensation, meaning civil
  5  litigation in terms of compensation.
  6                 MR. PETER WARDLE:   And -- and I say you
  7  can read your mandate -- and maybe we can just have a
  8  look at the terms of reference -- your mandate requires
  9  you to make recommendations to restore and enhance public
 10  confidence in forensic pathology, pediatric forensic
 11  pathology, in Ontario.
 12                 You can't report -- the word -- the word
 13  used in the mandate is "you can't report" on individual
 14  cases that have been or may be subject to criminal
 15  investigations and proceedings and you can't express any
 16  conclusion or recommendation regarding the civil or
 17  criminal liability of any person or organization.
 18                 In my submission, Mr. Commissioner, that
 19  shouldn't stop you from making the kind of recommendation
 20  that's encompassed in these paragraphs.
 21                 COMMISSIONER STEPHEN GOUDGE:   I took them
 22  to point as well to, in effect, the whereas that says
 23  there are civil proceedings that have arisen that are the
 24  appropriate forum for adjudicating these matters.
 25                 MR. PETER WARDLE:   Correct.

73
  1                 COMMISSIONER STEPHEN GOUDGE:   Bracket
  2  compensation they would include.
  3                 MR. PETER WARDLE:   But adjudication of
  4  specific issues is different than compensation.  The
  5  government can make compensation that's not on a fault
  6  based model.
  7                 COMMISSIONER STEPHEN GOUDGE:   Is that
  8  what you are proposing when you say "as a result of the
  9  errors?"  That is not --
 10                 MR. PETER WARDLE:   Well, in a -- in a --
 11                 COMMISSIONER STEPHEN GOUDGE:   -- fault
 12  based, it is --
 13                 MR. PETER WARDLE:   It's not fault based. 
 14  It's not -- it's in a --
 15                 COMMISSIONER STEPHEN GOUDGE:   Is it cause
 16  based?
 17                 MR. PETER WARDLE:   It's cause based. 
 18  It's based on -- it's based on the evidence that's been
 19  heard here.
 20                 COMMISSIONER STEPHEN GOUDGE:   Right.  And
 21  what would you see it compensating?  Loss?
 22                 MR. PETER WARDLE:   That's -- it would --
 23  it would --
 24                 COMMISSIONER STEPHEN GOUDGE:   Or is that
 25  wide open?

74
  1                 MR. PETER WARDLE:   That would be wide
  2  open.
  3                 COMMISSIONER STEPHEN GOUDGE:   Okay.
  4                 MR. PETER WARDLE:   I'm not suggesting
  5  that you be specific, but you're leaving a -- my point is
  6  really you're leaving a very important part of the story
  7  off the table.
  8                 COMMISSIONER STEPHEN GOUDGE:   Right.
  9                 MR. PETER WARDLE:   And -- and, you know,
 10  the public at large, they know what's happened to these
 11  families and they know of the tragedies and what they've
 12  been through, and to restore public confidence, to right
 13  the justice system, if I can put it that way, in my
 14  submission you have to deal with that issue.
 15  
 16                       (BRIEF PAUSE)
 17  
 18                 MR. PETER WARDLE:   Can I say in closing,
 19  Mr. Commissioner, that it's been a great pleasure for all
 20  of us to appear in front of you and you have indeed been
 21  very patient with us, and it's been a great privilege to
 22  represent these clients in this very important inquiry.
 23                 Thank you very much.
 24                 COMMISSIONER STEPHEN GOUDGE:   Thank you,
 25  Mr. Wardle.  We will rise then for fifteen (15) minutes.

75
  1  
  2  --- Upon recessing at 11:06 a.m. 
  3  --- Upon resuming at 11:26 a.m.
  4  
  5                 THE REGISTRAR:   All rise.  Please be
  6  seated.
  7                 COMMISSIONER STEPHEN GOUDGE:   Ms.
  8  Fraser...?
  9  
 10  SUBMISSIONS BY MS. SUZAN FRASER:
 11                 MS. SUZAN FRASER:   Thank you, Mr.
 12  Commissioner.  I'm going to just start by expressing my
 13  client's thanks, and our gratitude for allowing us to
 14  participate in the Inquiry, and the amazing abilities of
 15  your counsel, who've been able to synthesize what's
 16  happened, and their openness to our perspective.  Of
 17  course, we want to thank you for the way you've presided
 18  over the proceedings. 
 19                 And I also want to acknowledge, Mr.
 20  Commissioner, the work of a youth advisory group.  I
 21  think you'll recall in our standing application, we said
 22  that we would have a young -- a group of young people
 23  helping us out, and they did.  They met over four (4)
 24  times, and we've made reference to that in our
 25  submissions.  And they were assisted by Central Toronto

76
  1  Youth Services, in terms of professional support, and the
  2  Provincial Advocates.  So we're grateful to all of those
  3  people.
  4                 We thought that it was important to
  5  acknowledge at the outset in our submissions the
  6  unfortunate reality that children are victims of
  7  violence, abuse, and neglect, sometimes at the hands of
  8  their parents, their guardians, and their caregivers.  
  9                 And I think it's important that we
 10  acknowledge that, and that although there are problems,
 11  numerous problems, that we continue to acknowledge that
 12  it is a real problem, and that the failings here don't
 13  take away from the fact that it is our shared
 14  responsibility to protect children, and that
 15  responsibility can't be delegated to a particular agency. 
 16  It is the community's responsibility to protect our
 17  children, and to prevent violence.
 18                 To the extent that children can be
 19  protected by the criminal justice system, they are best
 20  protected, in our view, when the system pre -- produces
 21  the right result; when the innocent are exonerated, and
 22  the guilty are convicted, and hopefully ultimately
 23  rehabilitation.  And that is why, I think, that often
 24  when I had anticipated at the outset that our
 25  perspectives would differ from some of the families here,

77
  1  that ultimately we are looking for the same result.
  2                 And in terms of the system where children
  3  are to be protected, the child welfare system, it has
  4  been described in these proceedings as the poor cousin, I
  5  think, to the criminal justice system.  At least that's
  6  the word I've used.  There was some reference to -- it
  7  does -- not having the prestige.  And I've referenced
  8  that in our submissions.
  9                 But there are certain rules that -- at
 10  play within that system that do not always operate in the
 11  child's best interests.  And the two (2) sort of
 12  principles that I think have come out have been all or
 13  nothing solutions for children.  And although I haven't
 14  made reference to it in my written submissions, we heard
 15  evidence about the one year/two year (1/2) rule.
 16                 Those are not things that, I think, that
 17  you can resolve on the evidence that you have, but they
 18  certainly are important to your considerations on the
 19  evidence, and how it applies to investigations other than
 20  criminal investigations.
 21                 As you know, and you've heard throughout
 22  these proceedings as I've introduced myself, DCI was
 23  founded in 1979, which is the international year of the
 24  child.  And I want -- I think it's important to sort of
 25  identify some of the key rights that are at issue in

78
  1  these proceedings.
  2                 Particularly Article 3, which says that:
  3                   "In all actions concerning children,
  4                   whether undertaken publicly or
  5                   privately, by social welfare
  6                   institution, courts, or law, the best
  7                   interests of children shall be a
  8                   primary consideration."
  9                 And our respectful consid -- submission is
 10  that that includes you, Mr. Commissioner; that the best
 11  interests of the children shall be one (1) of your
 12  primary considerations.
 13                 We have seen the other conflicting rights. 
 14  The freedom of children to be -- the right of children to
 15  be free from violence, abuse, and neglect.  That's
 16  spelled out in Article 19.  
 17                 We have seen Article 9, that children have
 18  the right not to be separated from their parents against
 19  their will, except when competent authorities determine
 20  that it's in their best interests.
 21                 So those rights are at play, in our
 22  respectful submission, and we ask that you bear those in
 23  mind.  They form part of the evidentiary record we've put
 24  the commission -- the convention into evidence.
 25                 But I want to then turn to your mandate,

79
  1  Mr. Commissioner.  Reference was made to the Order in
  2  Council, which of course is what governs what you may do. 
  3  But you also made an opening statement, Mr. Commissioner,
  4  where you identified a  number of objects that flowed
  5  from your terms of reference and those, I think, really
  6  speak to what we've tried to respond to.  
  7                   "Ensuring that no one endure the horror
  8                   of being criminally charged or having
  9                   their families pulled apart because of
 10                   fla -- fal -- [pardon me] flawed
 11                   pathology findings or evidence; that
 12                   pediatric forensic pathology
 13                   appropriately society's interest in
 14                   protecting children from harm and
 15                   ensuring that those who do harm to
 16                   children are brought before the Courts;
 17                   and that when a child dies in
 18                   circumstances that might be criminally
 19                   suspicious that the death investigation
 20                   is detailed, thorough, compassionate,
 21                   and balanced."
 22                 And I think, Mr. Commissioner, at the end
 23  of the day, based on the evidence that we've heard, that
 24  those things remain important objects flowing from your
 25  terms of reference.  

80
  1                 So as you know, in terms of our interests
  2  in these proceedings, when we applied for standing, we
  3  identified as our primary concern the integrity of death
  4  investigations for children who are in the care, custody,
  5  and control of residential facilities, and that they not
  6  be overlooked in these proceedings.  
  7                 Partly by your order in granting us
  8  standing and the evidence heard, we have evolved in our
  9  position to take an interest in the surviving children,
 10  and what we think the Commission ought to recommend in
 11  respect of the surviving children.  
 12                 So I will focus my submissions on these
 13  two (2) areas: what are int -- what are obligations are
 14  to the surviving children; and a reformed pediatric death
 15  review system.  
 16                 As you know, Mr. Commissioner, DCI has
 17  suggested to you that your ought to recommend that there
 18  be a task force to deal with the surviving children.  And
 19  we've made this recommendation based on the principles of
 20  truth -- best interests of the child.  
 21                 And we recommended a task force -- if
 22  you'll recall Professor Bala's evidence; he thought that
 23  this might be accomplished through legislation; it might
 24  be accomplished by the child advocate having an expanded
 25  mandate.  

81
  1                 At the end of the day we chose not to
  2  recommend either one of those avenues.  Our concerns in
  3  terms of legislation that to have a specific bill that
  4  the process would take too long and that what -- and the
  5  powers that a task force needs could be delineated and
  6  prescribed by Order in Council.  
  7                 And so we have made that submission,
  8  because in our respectful submission this process of
  9  informing the young people of what happened to them is
 10  critical and it should not be subject to any delay.  
 11                 Obviously, anybody charged with this type
 12  of mandate is going to have to take some time to get
 13  their head around the problem, to assemble the
 14  appropriate expertise in order to assist them so that the
 15  best interests of the child are respected, but we think
 16  that you ought to recommend that this process be started
 17  as soon as possible.  And that's why we've recommended a
 18  task force.  
 19                 So we have recommended that you recommend
 20  that a process be established to review all cases where
 21  the opinion of Dr. Smith affected child welfare
 22  decisions.  And that where a child was separated from a
 23  parent or caregiver that a further process be established
 24  to review the circumstances of that child.  
 25                 We are not talking about disrupting stable

82
  1  placements.  We are talking a prod -- a process that
  2  would allow a child to access his or her family on his or
  3  her terms in accordance with his or her wishes and best
  4  interests.  And there isn't going to be one (1) solution
  5  that works for every child.  But the best interests
  6  should be at the forefront.  
  7                 COMMISSIONER STEPHEN GOUDGE:   And are
  8  these children, whether they've been adopted or are still
  9  in care?
 10                 MS. SUZAN FRASER:   Yes.  And I think that
 11  there's also going to be a right of children who were
 12  returned to their parents to be informed of what happened
 13  to them.
 14                 There are children who would -- have been
 15  separated from their parents and returned to their
 16  parents who may not know that this happened.  But they
 17  have a right to know what happened to them as well.
 18                 So I'm not prescribing it too narrowly,
 19  but I think if you work from the fundamental principles
 20  that truth and best interests should be the dictating
 21  factors along with the best interest of the child.
 22                 What -- what we're not recommending is
 23  that the birth parents have rights.  We're not saying
 24  that there's an absolute right for the birth parents to
 25  be re-involved in the life.  We're saying lets look at

83
  1  the child, lets inform the child, and then give the child
  2  the appropriate support so that they can come to those
  3  terms on their own.
  4                 But it can't be the case that we say that
  5  there's an absolute right here; that the best interest
  6  has to dictate, so --
  7                 COMMISSIONER STEPHEN GOUDGE:   Suppose the
  8  child has been returned to the natural parents?
  9                 MS. SUZAN FRASER:   Yes?
 10                 COMMISSIONER STEPHEN GOUDGE:   Is -- do
 11  somebody else other than the parents have the right to
 12  determine best interest?
 13                 MS. SUZAN FRASER:   The --
 14                 COMMISSIONER STEPHEN GOUDGE:   Or would
 15  you leave it to the parents to determine whether it's in
 16  the best interest of the children?
 17                 MS. SUZAN FRASER:   I think that the --
 18  that what I would recommend is that the Task Force have
 19  the abilities to work with the parents, to give them the
 20  right information.  But where the child is capable -- and
 21  this is  -- this flows from the convention of forming his
 22  or her own views -- they have a right to be informed and
 23  express their wishes about a proceeding.
 24                 So I wouldn't necessarily say that the --
 25  what the parents say dictate is what happens, that there

84
  1  has to be a best interest approach and the child's voice
  2  has to be heard throughout the process.
  3                 I think that you've heard clearly from the
  4  Child Welfare people that it's our moral and -- our moral
  5  obligation to the children who may have been wrongfully
  6  separated from their parents to establish a process where
  7  they can learn about what happened to them.
  8                 Our next obligation, what we say -- and
  9  this comes back to what I just told you -- is to allow
 10  the children to decide what happens to them in terms of
 11  the nature of the contact.  
 12                 There's no process currently where a
 13  wrongful adoption can be set aside.  And indeed that may
 14  not be in the child's best interest, but there has to be
 15  a humane way of dealing with what has happened.  We say
 16  that you can do this -- as flowing from your mandate --
 17  because you have the mandate to restore public
 18  confidence.  
 19                 And when I discuss my participation in the
 20  Inquiry with people, and -- and most particularly with
 21  the young people, their first question is:  Well what
 22  happened?  What -- how did this happen?  How did it
 23  happen that all these -- that there was this flawed
 24  pathology?  How did it happen that this person was
 25  wrongfully convicted?  

85
  1                 That's the first question, and that's part
  2  of your mandate to look at the policies, practice, and
  3  procedures that were in place.
  4                 But the second, and what's a more major
  5  preoccupation for the young people is:  What's going to
  6  happen?  So what's going to happen?  
  7                 And I'm pretty certain that that is
  8  because when they make mistakes they're asked to own them
  9  and to make things right.  And that's what we expect of
 10  our kids, is that you make a mistake, you own up to your
 11  mistake, and then you try and make it right.  And if we
 12  expect it of our kids we certainly should expect it of
 13  the adults, and we certainly should expect it of our
 14  leaders.
 15                 And so we say that you can make
 16  recommendations that would suggest to the province how
 17  they can make it right, and that's how you restore public
 18  confidence.  Otherwise, if you're a child looking at the
 19  system -- and this is what an Inquiry is supposed to be
 20  about, this is what accountability is supposed to be
 21  about -- I don't know how we can say to our kids, Own
 22  your mistakes.
 23                 So part of our recommendations are for
 24  getting our government to make it right, and the second
 25  part is for institutional and cultural change.

86
  1                 COMMISSIONER STEPHEN GOUDGE:   By getting
  2  it right, can you unpack that a little bit for me?
  3                 MS. SUZAN FRASER:   Well, I expect at the
  4  end of the day you're going to say that the system failed
  5  in a number of ways.  I think there have been
  6  acknowledgements by people throughout these proceedings
  7  that the system failed, so I don't think I'm saying
  8  anything shocking.
  9                 But I don't know what we tell a child who
 10  spent some of the most important years of his or her life
 11  in another country with grandparents rather than their
 12  parents.  I don't know what we can do to them -- do for
 13  them other than to say, We're sorry, number 1.
 14                 We've made a suggestion in our -- as part
 15  of our legal submissions to you, and I'll -- I'll just
 16  turn it up.  I think you've got it before you.
 17                 COMMISSIONER STEPHEN GOUDGE:   Mm-hm.  
 18                 MS. SUZAN FRASER:   Is for information to
 19  be given to those children.  And we've talked about
 20  information about their right to legal redress.  And that
 21  doesn't mean that the task force will actually provide
 22  that legal redress, but that the child should know --
 23  part of owning that mistake is to say to the child, This
 24  was a wrong that happened on our watch, and you're
 25  entitled to redress.

87
  1                 So that's -- that's part of -- part of
  2  making it right, is the truth telling process.  
  3                 And the second part of getting it right is
  4  establishing a process to make available to the child
  5  what they need to overcome the problem.  So it may be
  6  that they need to have counselling.  It may be that they
  7  need to have legal information.  It may be that in some
  8  circumstances they need to state a preference as to how
  9  they want contact to occur with somebody from whom
 10  they've been separated.
 11                 It may be a way to providing mediation
 12  services to the child to say -- the child may say, I want
 13  to know my siblings; I don't know my siblings.  I'm not
 14  prepared to meet my parents yet, but I want to know who
 15  my siblings are.
 16                 So it's setting up a process that would be
 17  flexible to respond to what the child's needs are.  And
 18  that's how we make it right: is to hear -- to tell the
 19  truth, to hear what the child needs, and to facilitate
 20  what they need to get past it.
 21                 So I don't know if that helps.
 22                 COMMISSIONER STEPHEN GOUDGE:   Thanks.
 23                 MS. SUZAN FRASER:   The Crown in its
 24  submissions, identified some concerns and identified some
 25  other statutory provisions and mechanisms for birth

88
  1  parents.  I don't actually think at the end of the day if
  2  you look at them carefully, that they're going to assist
  3  in the way that they suggest they are.  They're actually
  4  mechanisms for the adopted parents to create an openness
  5  plan, so I don't think it goes far enough in terms of
  6  allowing the child.  
  7                 But what we've said should be the -- the
  8  sort of determinative factor, is the best interests of
  9  the child, and the child's voice.  So the mechanisms that
 10  they've identified in their submissions don't actually
 11  speak to that. 
 12                 Some of the provisions relied on by the
 13  Crown -- which the Crown suggests prohibit disclosure of
 14  certain information saying that it's governed by statute. 
 15  And they make reference to Sections 161 and 165 of the
 16  Child and Family Services Act.  Those provisions have
 17  actually been repealed, as I understand, in adoption
 18  disclosures now governed by regulations.
 19                 So I think -- at the end of day if there
 20  needs to be an amendment to legislation, so be it.  But I
 21  don't think that My Friend's reading of the Child and
 22  Family Services Act is actually correct or applicable in
 23  the circumstances.
 24                 We did suggest, in our submissions, that
 25  it may be that every file -- every Child Welfare file has

89
  1  to be reviewed, and My Friends took issue with that, and
  2  I think probably quite rightly.  The way to probably do
  3  it is to look at if -- if Dr. Smith can't assist anymore
  4  than he's offered to, is to look at every pediatric
  5  autopsy.  What -- the point we were trying to make in our
  6  submissions --
  7                 COMMISSIONER STEPHEN GOUDGE:   You started
  8  with Dr. Smith's cases, those are the cases you're
  9  looking at?
 10                 MS. SUZAN FRASER:   I think so.
 11                 COMMISSIONER STEPHEN GOUDGE:   Yes.
 12                 MS. SUZAN FRASER:   I think so.  Others
 13  have suggested it should be broader than that.   
 14                 COMMISSIONER STEPHEN GOUDGE:   Would it be
 15  any universe of cases beyond those that were criminally
 16  suspicious?
 17                 MS. SUZAN FRASER:   I think that --
 18                 COMMISSIONER STEPHEN GOUDGE:   That is if
 19  that was determined to be natural that presumably had no
 20  impact on the child protection proceedings.
 21                 MS. SUZAN FRASER:   Well, I think that the
 22  important point is to determine whether -- that the
 23  opinion played a role in a child welfare proceeding.  I
 24  don't know if you can draw the line as to something being
 25  natural.  I'm not sure.  I just don't know -- we don't

90
  1  know enough about that.  
  2                 We know that there are other cases that
  3  Dr. Smith was involved in that -- where there was no
  4  underlying criminal proceeding, there was a child welfare
  5  proceeding.  So I think, at the end of the day --
  6                 COMMISSIONER STEPHEN GOUDGE:   How would
  7  his evidence have been relevant, in any case, where he
  8  was not testifying about a criminally suspicious death? 
  9  If he was testifying about a natural death, would that
 10  have any relevance in a child proceeding -- a child
 11  protection proceeding?
 12                 MR. SUZAN FRASER:   I don't know.  I don't
 13  know.
 14                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
 15                 MR. SUZAN FRASER:   The point I was trying
 16  to make in -- in terms of the -- look at all CAS files is
 17  to say as a society, we should be prepared to do what it
 18  takes to meet our moral obligation to the kids.  
 19                 And so it may be that this will dovetail
 20  with other recommendations for further review -- 
 21                 COMMISSIONER STEPHEN GOUDGE:   Yes.
 22                 MS. SUZAN FRASER:   -- but in any event,
 23  where is opinion played a role, is -- it's a file that
 24  should be reviewed.  
 25                 I -- I'm coming very close to the end of

91
  1  my time, Mr. Commissioner, so I just want to touch
  2  briefly, if I may, on the Paediatric Death Review
  3  Committee.  
  4                 COMMISSIONER STEPHEN GOUDGE:   Yes.  
  5                 MS. SUZAN FRASER:   I think we've made it
  6  clear that there is a need for an independent transparent
  7  death review system for children in Ontario's
  8  institutions, and that the Paediatric Death Review
  9  Committee doesn't meet that requirement.  
 10                 If you look back to the Child Mortality
 11  Task Force, it's interim report, there was this
 12  announcement in 19 -- in September of 1996 -- and I think
 13  it's -- if you have an opportunity, Mr. Commissioner, to
 14  look in our -- our chronology, which is in no means
 15  comprehensive, but it is a very effective tool to look at
 16  how things start to come down the tracks, especially with
 17  the climate that occur -- that was -- that we say was the
 18  case in 1996 and 1997 in terms of this -- the series that
 19  ran in the Toronto Star, all of those things.  But if you
 20  look at that, in the -- in the midst of that the
 21  Paediatric Death Review Committee said: 
 22                   "We broadened authority to review all
 23                   deaths of -- of children in receipt of
 24                   child protection services and that this
 25                   augments the authority of the

92
  1                   Paediatric Death Review Committee to
  2                   review a suspicious death."
  3                 And just for your reference, Mr.
  4  Commissioner, in terms of that time period, it's at Tab A
  5  of our materials.
  6                 COMMISSIONER STEPHEN GOUDGE:   Yes.  
  7                 MS. SUZAN FRASER:   And just in terms of
  8  how much that may have played a role -- just jumping
  9  around a bit because I want to finish in the time that I
 10  have -- if you look at page 49 of our brief.
 11                 COMMISSIONER STEPHEN GOUDGE:   Yes.  
 12                 MS. SUZAN FRASER:   April 18th is that
 13  letter from Dr. Becker to Dr. Smith regarding the
 14  reduction of surgical pathology -- the reduction of his
 15  salary of twenty-thousand dollars ($20,000) -- the letter
 16  that was never sent.  Two (2) days later -- and this is
 17  at PFP056807 -- two (2) days later the Toronto Stun --
 18  Star runs on its front page:
 19                   "Missed Clues, Lost Lives.
 20                   Too often fatal mistakes by MDs. 
 21                   Police, Children's Aid end up on a cold
 22                   metal autopsy table of pathologist
 23                   Charles Smith."
 24                 So there was a lot going on in 1997,
 25  including the announcement by the Paediatric Death Review

93
  1  Committee that it was going to respond to the needs of
  2  children who were under the care of the CAS.  
  3                 That being said, there's no mandate to
  4  review chil -- kids who are in the care of children's
  5  mental health facilities, it's not part of the Paediatric
  6  Death Review Committee, and there's no mandate for it to
  7  review other institutional deaths.  And we've identified
  8  those in our submissions and throughout the proceedings.  
  9                 So it is clear that there was a call for
 10  there to be more oversight, and that the Paediatric Death
 11  Review Committee responded to say, We're going to provide
 12  it.  But at the end of the day with only two (2) reports
 13  from that committee in almost nineteen (19) years about
 14  the state of -- about how children come to their end, it
 15  has not met its promise.  So we've made some
 16  recommendations in that respect.
 17                 The fact that the Committee was housed
 18  within the Office of the Chief Coroner, which was part of
 19  the Ministry of the Solicitor General, did not help in
 20  terms of the perception of independent, in our respectful
 21  submission.
 22                 So I'm -- I think I'm out of time, so I am
 23  going to end by saying that we have made other
 24  recommendations about the use of opinion evidence, about
 25  the prevention of miscarriages of justice in child

94
  1  welfare proceedings, about the corporate governments
  2  culture, and we ask that you pay attention to those as
  3  well.  And when you're making recommendations in respect
  4  of crim -- criminal proceedings, that you think about the
  5  way that that can also play out in child welfare
  6  proceedings.
  7                 So thank you again, Mr. Commissioner, for
  8  the opportunity to participate.
  9                 COMMISSIONER STEPHEN GOUDGE:   Thank you,
 10  Ms. Fraser.
 11                 Mr. Di Luca...?
 12  
 13                       (BRIEF PAUSE)
 14  
 15  SUBMISSIONS BY MR. JOSEPH DI LUCA:
 16                 MR. JOSEPH DI LUCA:   Thank you, Mr.
 17  Commissioner.  The Criminal Lawyers Association wishes to
 18  thank this commission of inquiry at the outset for the
 19  opportunity to participate in this matter, a matter which
 20  is obviously of great importance to our membership, and
 21  indirectly, to our clients.
 22                 As you are no doubt aware, Mr.
 23  Commissioner, the CLA represents approximately one
 24  thousand (1,000) defence lawyers from across, and outside
 25  the province.  Along with the Ontario Crown Attorneys

95
  1  Association, we represent the frontline workers of the
  2  criminal justice system.  
  3                 In recent times, it has become ever more
  4  popular to fault defence counsel for the troubles of the
  5  system.  At every turn, we are told we take too long to
  6  fight trials, we turn the trial of an accused into a
  7  trial of a police investigation, we abuse the Charter.  A
  8  broad, but critical brush, has been applied to the
  9  Defence Bar, yet it is the Defence Bar that rose to
 10  challenge Dr. Smith.  It is the Defence Bar that
 11  instigated this Public Inquiry.
 12                 This -- the evidence at this Inquiry has
 13  shown the defence occupies a singularly important role in
 14  the criminal justice system.  We are tasked with the
 15  heavy burden of ensuring that accused persons, our
 16  clients, get fair trials, and we often stand alone, and I
 17  add underpaid, in this endeavour.  Our task is made that
 18  much more difficult when our clients are charged with
 19  heinous offences, such as killing, or hurting, children.
 20                 If we want a complacent, and silent
 21  Defence Bar that admits everything, challenges little,
 22  plays nice, that's a choice that our society can make. 
 23  It may result in fewer, and shorter, trials, but it will
 24  also create a need for more public inquiries like this
 25  one.

96
  1                 To be blunt, a complacent, and silent
  2  Defence Bar will result in miscarriages of justice.  A
  3  complacent, and silent Defence Bar will not serve as a
  4  constitutional check and balance against the power of the
  5  state.  A complacent, and silent Defence Bar will not
  6  root out the Dr. Smith's of this world.  
  7                 We urge you, Mr. Commissioner, to find
  8  that a vigorous, principled, and dedicated Defence Bar is
  9  essential to ensure that the fair trial rights of accused
 10  persons are respected and that the product of the justice
 11  system is indeed just.  And it's against that backdrop
 12  that I'd like to turn to some of the key recommendations
 13  found in our brief.  I won't address all of them.  
 14                 I'll address the following:
 15                 First, the Legal Aid Tariff.  
 16                 Secondly, the test for admissibility of
 17  scientific evidence, along with jury instructions.  
 18                 And lastly, plea bargaining.
 19                 Time permitting, I have some very brief
 20  comments to make on education, accountability, and
 21  oversight, and reciprocal disclosure.
 22                 On that last point, reciprocal disclosure,
 23  I think everyone agrees that there's no need for a rule,
 24  but I will address some of the constitutional dimensions,
 25  and some of the practical issues.

97
  1                 Starting with Legal Aid.  It goes without
  2  saying that a properly defended -- sorry, a properly
  3  funded Defence Bar is a vital component of a fair
  4  criminal justice system.  The current tariff rates and
  5  structures are manifestly unfit; they create powerful
  6  disincentives. 
  7                 Senior and experienced counselled -- are
  8  either not taking on long complex cases, or taking on
  9  fewer of them.  
 10                 Junior counsel are filling this void. 
 11  They are not receiving the traditional mentoring that
 12  goes along with sitting as junior counsel with senior
 13  counsel on these complex cases.  Instead, they're taking
 14  them on themselves.  And I think it's a truly sad and
 15  dangerous state of affairs when you consider John
 16  Struthers' observation that for many young lawyers their
 17  first jury trial is a homicide.
 18                 In this regard the CLA asks this
 19  Commission to recommend an increase to the rates paid
 20  under Legal Aid.  We recommend that increase be across
 21  the board.  This matter is currently with Professor
 22  Trebilcock (phonetic) who is studying the issue, so we
 23  submit respectfully that the issue as to what the
 24  appropriate rate should be is obviously best left for
 25  another forum, but if you will see fit to make the

98
  1  recommendation, or at least the observation that the
  2  rates are manifestly inadequate that serves our purpose
  3  and our client's purposes.
  4                 COMMISSIONER STEPHEN GOUDGE:   Where is
  5  Professor Trebilcock's report at, do you know?
  6                 MR. JOSEPH DI LUCA:   It is in the
  7  consideration stage is my understanding.  Various groups
  8  including the Criminal Lawyer's Association have made
  9  submissions, so my understanding is that it's in the
 10  works, but that's the extent of it.  We have filed
 11  extensive written submissions on the issue.
 12                 COMMISSIONER STEPHEN GOUDGE:   Okay.  In
 13  the works with him.
 14                 MR. JOSEPH DI LUCA:   Correct.  And -- and
 15  to add to that, the Criminal Lawyer's Association was
 16  also granted Intervenor status before Justice Major at
 17  the Air India Inquiry.  And we advanced a similar request
 18  in terms of Legal Aid funding before that Commission of
 19  Inquiry, namely that the fair conduct, and indeed the
 20  efficient conduct of trials is better fostered when
 21  defence counsel are properly and fairly compensated.  And
 22  that's for a variety of reasons, not the least of which
 23  is that when you attract experienced and competent
 24  counsel to these types of cases they will be in a
 25  position to make the tough calls that will lead to a

99
  1  proper presentation of a defence.
  2                 In that vein, we submit, that a
  3  recommendation should go regarding the creation of a
  4  fourth tier of counsel rates.  As you may be aware,
  5  there's only three (3) tiers at this stage; the third
  6  tier starting at tenth year, so an eleven (11) year
  7  lawyer to a forty (40) lawyer is paid the same rate and
  8  obviously there's great differences.
  9                 That fourth tier, we submit, should also
 10  have meaningful criteria, in terms of qualification and
 11  eligibility not simply related to passage of time.  And
 12  that's --
 13                 COMMISSIONER STEPHEN GOUDGE:   It should
 14  not just be seniority?
 15                 MR. JOSEPH DI LUCA:   No.
 16                 COMMISSIONER STEPHEN GOUDGE:   What else?
 17                 MR. JOSEPH DI LUCA:   There should be a
 18  skill component to that to ensure that counsel taking on
 19  these types of cases and meriting the highest rate of
 20  public funding have the requisite skill set.
 21                 And there's suggestions in the Crown brief
 22  about having a joint education program between the Crown
 23  Attorney Association and the Criminal Lawyer's
 24  Association, and making that a mandatory component of
 25  qualification for this high rate or an enhanced rate. 

100
  1  That is one (1) option.
  2                 I wouldn't want it to be limited to that
  3  option.  It can be a demonstration of a variety of
  4  skills.  If a lawyer has done thirty (30) murder trials,
  5  many of the involving pediatric death, I highly doubt
  6  that attending the one (1) course on it should be the
  7  sine qua non of qualification.  There should be other
  8  means of qualifying, perhaps even looking at whether the
  9  person is designated by the Law Society as a specialist
 10  in the area.
 11                 And Legal Aid is already working towards
 12  doing that, but it needs to be done because it's clear
 13  that there is a caliber component to effectively and
 14  properly defending people charged with these types of
 15  offences.
 16                 COMMISSIONER STEPHEN GOUDGE:   You have
 17  described it as a fourth tier to take on complex and
 18  highly and likely criminal cases.
 19                 MR. JOSEPH DI LUCA:   Yes.
 20                 COMMISSIONER STEPHEN GOUDGE:   So it is a
 21  broad fourth tier, not just one (1) confined to pediatric
 22  death cases?
 23                 MR. JOSEPH DI LUCA:   I think that's fair. 
 24  Indeed at the Air India Commission we talked about
 25  complex terrorism type cases.  I think the issues raised

101
  1  here squarely fall within the pediatric forensic
  2  pathology and the complexities of it, but that replicates
  3  itself in other areas of criminal law.  That will be
  4  something for Legal Aid to decide, how broadly they want
  5  to structure that fourth tier and what types of --
  6                 COMMISSIONER STEPHEN GOUDGE:   But it
  7  should at least include pediatric death cases?
  8                 MR. JOSEPH DI LUCA:   Absolutely.
  9                 COMMISSIONER STEPHEN GOUDGE:   Okay.  And
 10  then I was not clear, Mr. Di Luca, as to whether the
 11  assertion was in order to get a certificate to defend one
 12  (1) of these cases you had to be on the fourth tier.
 13                 MR. JOSEPH DI LUCA:   There is an obvious
 14  tension in the sense that one (1) of the wonderful and --
 15  and perhaps constitutionally wonderful hallmarks of our
 16  system is that it respects -- our certificate system in
 17  Legal Aid; respects the right to counsel of choice.
 18                 COMMISSIONER STEPHEN GOUDGE:   Right.
 19                 MR. JOSEPH DI LUCA:   Having said that, it
 20  is obviously an expenditure of public funds.  It's an
 21  expenditure of public funds that needs to be done
 22  responsibly.  I think Legal Aid has that obligation, and
 23  we as defence counsel have a similar overlapping
 24  obligation to ensure that the expenditure of public funds
 25  is done appropriately.  

102
  1                 So to the extent possible, the system
  2  should accommodate right to counsel of choice, but I can
  3  see a valid argument and in fact accept that there is a
  4  valid argument in certain cases to ensure that lawyers
  5  are properly qualified to deal with those cases.   So it
  6  -- 
  7                 COMMISSIONER STEPHEN GOUDGE:  Does the CLA
  8  have a position on whether you have to be on the fourth
  9  tier to get a certificate for these cases?
 10                 MR. JOSEPH DI LUCA:  I -- I think
 11  depending on how the -- the strictures are -- are set up
 12  to define what is a case that falls --
 13                 COMMISSIONER STEPHEN GOUDGE:   Right.  
 14                 MR. JOSEPH DI LUCA:  -- within the fourth
 15  tier, and assuming that the Criminal Lawyers' Association
 16  is granted input in -- in structuring that system, it is
 17  something we can see our way towards agreeing to.
 18                 COMMISSIONER STEPHEN GOUDGE:   Right.  
 19                 MR. JOSEPH DI LUCA:   But having said
 20  that, it remains theoretical at this stage, in that we
 21  don't know how it's going to be structured.
 22                 COMMISSIONER STEPHEN GOUDGE:   Right.  
 23                 MR. JOSEPH DI LUCA:   But in principle, we
 24  accept that that is likely going to be required.  
 25                 And Mr. Sandler just points out there is a

103
  1  distinction obviously between whether the senior counsel
  2  on the file needs to be on the list, on the fourth tier,
  3  or both the senior or junior.  
  4                 And I just want to be clear that if we
  5  want to create an incentive for the fostering of
  6  mentoring to raise junior counsel up through the ranks,
  7  there shouldn't be a requirement that all counsel on the
  8  file be on that fourth tier.  Obviously, a lead counsel
  9  needs to be in that tier, and the remaining counsel can
 10  apprentice under the senior counsel, if you will, much as
 11  it was in previous times.  
 12                 COMMISSIONER STEPHEN GOUDGE:   Right.  
 13                 MR. JOSEPH DI LUCA:   Tied to that is the
 14  need, in my respectful submission, to recognize that the
 15  rates paid to experts under Legal Aid can be the source
 16  of -- of difficulties and problems.  Legal Aid rate --
 17  Legal Aid plan right now pays experts at a rate far below
 18  market value.  It likely pays at a rate far below what
 19  the Crown pays for the same experts to testify on its
 20  behalf.
 21                 COMMISSIONER STEPHEN GOUDGE:   We heard
 22  something about that, in fact.
 23                 MR. JOSEPH DI LUCA:   And -- and if that
 24  doesn't automatically tilt the balance of the playing
 25  field  -- I mean it's a starting point.  We're -- we're

104
  1  just not in a position to -- to pay the same expert the
  2  same amount of money that the Crown is.  And that's a
  3  difficulty that Legal Aid needs to square, but a
  4  recommendation from this Commission would go some
  5  distance to addressing that issue.
  6                 And tied to that are minor points,
  7  including having a defence expert present during the
  8  testimony of a Crown expert.  Those are minor details,
  9  but valuable and important details, in that it's not
 10  merely the preparation of a report and the testimony
 11  simpliciter, it also is attending potentially for an in-
 12  person review of materials and/or autopsies, attending
 13  with defence counsel to prepare for cross-examination and
 14  being present, it's a little bit broader.  
 15                 I'll leave the Legal Aid issue and move to
 16  the test for admissibility for scientific evidence, as I
 17  suspect that this is one (1) of the issues that is most
 18  troubling and perhaps most complex to deal with.  And I'm
 19  not sure that the answer is readily discernible.  
 20                 In our respectful submission, the key
 21  concern with admissibility is the potential unreliability
 22  of scientific evidence.  If we've learned one (1) thing
 23  from this Inquiry it's that the state of scientific
 24  knowledge is obviously in flux, and what we accept at one
 25  (1) point may turn out later, with disastrous

105
  1  consequences, to not be nearly as reliable as we once
  2  safely assumed.  
  3                 In our submission, it is essential that
  4  trial judges perform a rigorous gatekeeping function to
  5  ensure that scientific evidence undergoes a threshold
  6  reliability screening as a condition precedent to
  7  admissibility.  The case law on this, I say at this
  8  stage, is encouraging.  
  9                 While starting back at the Mohan test,
 10  reliability wasn't an explicit sine qua non of
 11  admissibility.  It has now, through a variety of
 12  incarnations and machinations, become an issue which can
 13  be grappled with from the gatekeeper point of view, from
 14  the initial admissibility point of view.  
 15                 And I just point to cases like JLJ
 16  (phonetic) and Trochym as examples of cases where trial
 17  judges are -- are encouraged to exercise a true
 18  gatekeeper function on a reliability threshold.  
 19                 Now, where that test falls and at what
 20  level do we say that it's sufficiently reliable to be put
 21  to a jury is -- is a live question.  It's obviously a
 22  question that the Courts will continue to grapple with.
 23                 But as a -- a fundamental --
 24                 COMMISSIONER STEPHEN GOUDGE:   As a
 25  conceptual matter, you are talking about threshold

106
  1  reliability, not ultimate reliability.
  2                 MR. JOSEPH DI LUCA:   No, ultimate rel --
  3  reliability has to be left with the trier of fact.
  4                 COMMISSIONER STEPHEN GOUDGE:   Right.
  5                 MR. JOSEPH DI LUCA:   But tied to that,
  6  there needs to be a recognition that if the jury is not
  7  in a position to make a determination about the ultimate
  8  reliability, then the evidence shouldn't be going in.
  9                 And if we have a situation, and it's set
 10  out in our submissions, where there is a sharp divide in
 11  the scientific community over the very essence of the
 12  science behind the opinion evidence that's given, at a
 13  certain level it becomes ultimately unfair to present the
 14  two (2) sides of the debate to a jury, and ask them to
 15  resolve that debate; a debate which the scientists have
 16  failed to resolve.  
 17                 And there's a difficulty, in that through
 18  Trochym and -- and JLJ, we learned that we can challenge
 19  novel scientific evidence on -- on the basis of -- of
 20  reliability.  Other cases like Dimitrov & Ho, from our
 21  Court of Appeal, suggest that we can also challenge it
 22  for well settled areas of -- of scientific evidence.
 23                 We seek to somewhat expand, or at least
 24  modify, that view to suggest that there is a reliability
 25  function, or at least a threshold reliability function,

107
  1  where the evidence, at least the scientific opinion
  2  underlying the evidence, is in -- in a state of divide.
  3                 And it's set out in our factum, at
  4  paragraphs 47 to 52, page 30 to 33, where we discuss, in
  5  effect, an application of -- it would become, in effect,
  6  the L -- sorry, the Daubert criteria for reliability, but
  7  an application of them, found at page 31, and there's a -
  8  - a listing of four (4) bullet points there, starting
  9  with:
 10                   "Where there is a clear controversy
 11                   within the scientific community, the
 12                   theory has not been sufficiently tested
 13                   to determine which side of the
 14                   controversy is correct."
 15                 And B:
 16                   "While the competing theories..."
 17                 MR. JOSEPH DI LUCA:   Sorry.
 18                 COMMISSIONER STEPHEN GOUDGE:   What do you
 19  mean by clear controversy?
 20                 MR. JOSEPH DI LUCA:   That --
 21                 COMMISSIONER STEPHEN GOUDGE:   I mean, do
 22  you have as the paradigm in the back of your head the
 23  shaken baby?
 24                 MR. JOSEPH DI LUCA:   Absolutely.
 25                 COMMISSIONER STEPHEN GOUDGE:   So that is

108
  1  kind of what you are driving at with it?
  2                 MR. JOSEPH DI LUCA:   Sure.  Sure.  And --
  3  and that's -- that's an example that's been made very
  4  clear through the evidence before the Inquiry.  It -- it
  5  serves as a great example to work through an analysis on
  6  it.
  7                 COMMISSIONER STEPHEN GOUDGE:   Yes.
  8                 MR. JOSEPH DI LUCA:   But it's not
  9  obviously the only example of it.  There may be other
 10  examples.
 11                 And ultimately as a matter of threshold
 12  reliability, a test will have to be articulated.  And
 13  there's not going to be a -- a bright line rule.  It's
 14  going to be a matter of -- of degree.  
 15                 And a trial judge sitting on the issue
 16  will have to examine how close the proffered opinion goes
 17  to the  -- the issue at the heart of the case.  And --
 18  and the closer you are to the ultimate question, the more
 19  rigorous the standard should be for threshold
 20  reliability.
 21                 Ultimately a judge will have to sit there
 22  and consider, and I expect that at a certain stage, the
 23  case law will flush out the criteria that will let us
 24  know when the divide is -- is sharp enough to warrant
 25  intervention at the threshold reliability stage.

109
  1                 But I think we have to at least move in
  2  the direction of recognizing that a trial judge may be,
  3  at a certain point in time, called upon to say the divide
  4  in this scientific evidence is so sharp that it is unsafe
  5  and unfair to simply put it to a jury and ask them to
  6  pick which side they believe.
  7                 COMMISSIONER STEPHEN GOUDGE:   Even if the
  8  judge could determine that both sides reach a threshold
  9  reliability?
 10                 MR. JOSEPH DI LUCA:   In my submission, if
 11  we get to the stage where both sides reach a threshold
 12  reliability, and there's no distinguishing feature
 13  between the two (2), the jury is not in any position to
 14  settle that debate and the logical probity of that
 15  evidence plummets, because the jury then is not in a
 16  position to, in any meaningful way, choose as between the
 17  two (2).
 18                 And -- and really then it becomes an issue
 19  of can you safely say the jury should rely on one (1)
 20  side, or the other.  And if we can't, then there's a
 21  danger of a miscarriage of justice, and we're staring at
 22  it in the face, knowing that it -- initially going into
 23  the matter.
 24                 So I acknowledge --
 25                 COMMISSIONER STEPHEN GOUDGE:   Would it be

110
  1  enough if the jury were told about the existence of the
  2  controversy?
  3                 MR. JOSEPH DI LUCA:   I -- I think as a
  4  fallback position, jury instructions need to go to the
  5  jury to bring to their attention very clearly, Look
  6  there's this controversy out here.  You're not required
  7  to settled the controversy.  You should also know that in
  8  effect it's a controversy in which two (2) sides, both
  9  respectable, both reasonable, have disagreed upon.  Draw
 10  from that what inference you want, but be very cautious
 11  in doing so.
 12                 COMMISSIONER STEPHEN GOUDGE:   Right.
 13                 MR. JOSEPH DI LUCA:   And ultimately in
 14  our position, is that in the correct case, the threshold
 15  screening function should remove that evidence.  Failing
 16  that, if it's not the clearest case, it may be that a
 17  judge can fashion appropriate jury instructions to deal
 18  with the issue. 
 19                 And -- and secondary to that initial jury
 20  instruction, would be also a jury instruction cautioning
 21  on the frailties of interpretive science and opinion
 22  evidence based on interpretation.
 23                 And in our respectful submission, there
 24  should be a recommendation that a jury instruction be
 25  fashioned, much along the lines of the jury instruction

111
  1  we give for identification evidence --
  2                 COMMISSIONER STEPHEN GOUDGE:   Right. 
  3                 MR. JOSEPH DI LUCA:   -- cautioning a jury
  4  to be very careful before they rely on this type of
  5  evidence.  And I'll just leave the issue of the expert
  6  evidence with a recognition that ultimately -- I believe
  7  it was Justice Rosenberg who noted that a lot of these
  8  cases which are taking a standing for a legal principle
  9  in terms of admissibility, are really factual findings
 10  that should be open to review.
 11                 And if anything, we've seen in this
 12  Inquiry, that if we were to take a finding of
 13  admissibility of expert evidence and turn it into an envi
 14  -- and enviable legal principle, we run the very real
 15  risk of not permitting the science to develop and
 16  improve.  And so we've learned that, and I think we need
 17  to be cognizant of that.  
 18                 I just want to touch briefly on plea
 19  bargaining.  I won't go into the details of the corrosive
 20  elements of plea bargaining other than to note that
 21  they're well documented, and they exist.  And when left
 22  unchecked, those corrosive elements can undermine the
 23  safe operation of the plea bargaining system.  
 24                 And we know from the Martin Committee that
 25  plea bargaining is contingent upon all the actors

112
  1  operating in that system, acting in accordance with their
  2  professional obligations and with the utmost integrity. 
  3  It is the starting point of an effective and fair plea
  4  bargaining system.  
  5                 And in my submission there's a real risk
  6  when the plea bargain that is being offered presents such
  7  a manifestly disproportionate punishment to that which
  8  might be occasioned following a trial.  There is a real
  9  risk that a person who did not commit an offense will
 10  rise to that bait. 
 11                 And we've heard evidence on that issue,
 12  and beyond that evidence, from an academic perspective,
 13  the academic writing on the -- on the risk of convicting
 14  the innocent through plea bargaining is -- is well
 15  settled.  We know it's out there, we can't necessarily
 16  quantify it, but it is a risk.  
 17                 And in terms of dealing with this issue,
 18  it is an interesting issue, because I suspect that in
 19  most cases all counsel, Crown and defence, do undertake
 20  plea bargaining with a view to the utmost integrity and
 21  their professional responsibilities.
 22                 I just want to add a couple items, because
 23  in the Martin Committee Report, recommendation was made,
 24  in effect, to formalize the reasonable prospect of
 25  conviction test.  In my respectful submission, that test,

113
  1  while formalized -- and in the Martin Committee Report is
  2  -- is restated with reference to admissible or
  3  inadmissible evidence, it's restated with respect to
  4  credibility of cases.  It needs to be restated with an
  5  acknowledgement of the frailties of expert evidence, in
  6  particular, expert pediatric pathology evidence, such
  7  that any Crown -- and quite frankly, defence lawyer
  8  sitting down -- will be operating under a series of
  9  principles which make explicit reference to the fact that
 10  if you're plea bargaining these types of cases, your view
 11  to reasonable prospect of conviction, which quite frankly
 12  really sets the -- the tone of how a plea bargain
 13  unfolds, must be done with a view to looking at the
 14  strength and weaknesses of this evidence.
 15                 And I just want to add one (1) additional
 16  point.  Recommendation 28 of our brief reads as follows,
 17  that:
 18                   "The Crown's position on the
 19                   appropriate charge and facts for a
 20                   guilty plea not be formulated simply
 21                   for reasons of expediency and not
 22                   otherwise bring the administration of
 23                   justice into disrepute."  
 24                 That recommendation, Number 28, is a
 25  rewording of a recommendation that's found in the Martin

114
  1  Committee Report.  The Martin Committee Report words that
  2  recommendation by reference only to the sentence position
  3  of the Crown.
  4                 In my respectful submission, and on behalf
  5  of the Criminal Lawyer's Association, that's not far
  6  enough; that recognition there needs to go further.  It
  7  should be in relation to the appropriate charge and the
  8  facts that underlie that charge, so that when deals are
  9  reached in that context, the overarching duty to make
 10  sure that the deal is appropriate.
 11                 The deal shouldn't be a way to save face
 12  or to save a case, but it should match the facts that are
 13  available and the fair and correct charge in the
 14  circumstances.  
 15                 And the only other issue I want to leave
 16  with on -- on the issue of plea bargaining, the Criminal
 17  Law Division --
 18                 COMMISSIONER STEPHEN GOUDGE:   Just a sec,
 19  I just want to make sure --
 20                 MR. JOSEPH DI LUCA:   Sure.
 21                 COMMISSIONER STEPHEN GOUDGE:   -- I have
 22  that, Mr. Di Luca --
 23                 MR. JOSEPH DI LUCA:   Yes.
 24                 COMMISSIONER STEPHEN GOUDGE:   -- because
 25  I did not pick that up when I read your brief. 

115
  1  Recommendation 28 --
  2                 MR. JOSEPH DI LUCA:   Correct.
  3                 COMMISSIONER STEPHEN GOUDGE:   -- is a
  4  transposition of the Martin recommendation relating to
  5  the Crown's position on sentence?
  6                 MR. JOSEPH DI LUCA:   Correct, the Martin
  7  -- so the committee report -- the Martin Committee report
  8  only says the Crown's position on the appropriate
  9  sentence --
 10                 COMMISSIONER STEPHEN GOUDGE:   Okay.
 11                 MR. JOSEPH DI LUCA:   -- must not be
 12  formulated simply for reasons of expediency. 
 13                 COMMISSIONER STEPHEN GOUDGE:   Okay,
 14  thanks.
 15                 MR. JOSEPH DI LUCA:   And to that we seek
 16  to add the appropriate charge or the facts underlying
 17  that charge for a guilty plea.  It's an expansion of --
 18  of the obligations set out in the Martin Committee
 19  report.
 20                 COMMISSIONER STEPHEN GOUDGE:   Right.
 21                 MR. JOSEPH DI LUCA:   And -- and lastly,
 22  on the issue of the Criminal Law Division initiatives put
 23  forward by the Crown Attorney Association, we applaud and
 24  accept that initiative.  
 25                 The only thing we ask is an ability to

116
  1  have access to that Committee, such that if the defence
  2  feels at a certain point that a plea that is being
  3  offered as perhaps outside of the boundaries of what is a
  4  proper plea, we can have a second of eyes look at that
  5  plea and -- and assist us in -- in ensuring, or taking
  6  that extra step to make sure that the plea that is being
  7  proposed is fair.
  8                 Noting my time, I'll just leave two (2)
  9  minor points.  You're asked in a variety of contexts, in
 10  a variety of submissions, to create either counsels, or
 11  committees, or oversight mechanisms and oversight groups. 
 12  The Criminal Laywer's Association just asks that if any
 13  of these committees are recommended by this Commission,
 14  where feasible and where appropriate we ask that a member
 15  of the Defence Bar, either through the Criminal Lawyer's
 16  Association or through another criminal law organisation,
 17  be included in terms of the organizational structures. 
 18                 And we feel that that's important to make
 19  sure that a balanced viewpoint is -- is forwarded in any
 20  of these committees; be that education, be it a list of -
 21  - of approved pathologists, be it an accountability and
 22  oversight mechanism.
 23                 Mr. Commissioner, I know my time has
 24  passed.  The Criminal Lawyer -- Lawyer's Association
 25  thanks you for your patience and your time.  We look

117
  1  forward to receiving your report on this matter, and
  2  moreover, we look forward to assisting and working
  3  towards the quick implementation of your recommendations. 
  4  Thank you.
  5                 COMMISSIONER STEPHEN GOUDGE:   Thanks, Mr.
  6  Di Luca.  
  7                 Mr. Cavalluzzo...?
  8  
  9  SUBMISSIONS BY MR. PAUL CAVALLUZZO:
 10                 MR. PAUL CAVALLUZZO:   Mr. Commissioner,
 11  at the outset let me, as well, on behalf of the Crown
 12  Attorney's Association to thank you, your counsel, and
 13  your staff for the assistance and courtesy that you have
 14  given all counsel throughout.
 15                 Now like any public inquiry, simply your
 16  role is to do three (3) things: the first is to find out
 17  what happened; secondly, to find out why it happened; and
 18  thirdly, to come up with recommendations to ensure that
 19  this kind of public tragedy does not recur in the future.
 20                 Now with respect, and I say this with
 21  great respect because I know the difficult challenge
 22  which faces you and your staff, I observe that your most
 23  important role, it seems to me, will be to restore public
 24  confidence in public institutions which have failed us,
 25  and in the administration of justice in respect of the

118
  1  prosecution of pediatric death cases.
  2                 Now, in its submission the Ontario Crown
  3  Attorney's Association has focussed upon the role of the
  4  pathologist in the criminal justice system in these
  5  pediatric death cases.
  6                 Our perspective, obviously, is that of the
  7  Crown prosecutor who plays a unique role in the system. 
  8  In the past our Courts have often commented on his or her
  9  role which has been described as a quasi-judicial role,
 10  and some commentators have described the Crown attorney
 11  or Crown counsel as being the local minister of justice
 12  in the region in which he or she is appointed by Order in
 13  Council.
 14                 Now there is an inevitable tension between
 15  the -- this office between the advocacy role and the
 16  quasi-judicial role.  And it seems to me that the
 17  necessary balance that must be struck was best described
 18  by Justice Rand in the Bushey case, and if I can just
 19  read a few words that he said because it's a very
 20  important backdrop to our submissions.
 21                 His Lordship said back in 1955 that:
 22                   "It cannot be overemphasized that the
 23                   purpose of the criminal prosecution is
 24                   not to obtain a conviction.  It is to
 25                   lay before a jury what the Crown

119
  1                   considers to be credible evidence
  2                   relative to what is alleged to be a
  3                   crime.  
  4                   Counsel have a duty to see that all
  5                   available legal proof of the facts have
  6                   been presented.  It should be done
  7                   firmly  and pressed to its legitimate
  8                   strength, but it also must be done
  9                   fairly.  The role of the prosecutor
 10                   include -- excludes any notion of
 11                   winning or losing; his function is a
 12                   matter of public duty which in civil
 13                   life there can be none charged with
 14                   greater personal responsibility."
 15                 Now with the fundamental -- as we say in
 16  the submissions, the fundamental responsibility of Crown
 17  counsel is to ensure that justice is done in a system,
 18  which has as its ultimate aim the seeking of truth.
 19                 In light of this, our submissions are
 20  intended to ensure that the system has access to and can
 21  rely upon accurate and reliable pediatric pathology
 22  evidence.  Any wrongful conviction has tragic personal
 23  consequences on the accused.  However on a broader scale,
 24  it is a tragic demonstration that the system and the
 25  players in it, have failed to meet the ultimate aim of

120
  1  the system, which once again is the attainment of truth
  2  through a fair process.
  3                 Now, I'd like to briefly take you through
  4  and highlight some of the submissions that the
  5  Association has made.  You should have a blue brief in
  6  front of you.  And in the time I have I'd like to focus
  7  and highlight certain submissions.
  8                 The first, if we can start at page 3 of
  9  the brief, the -- the Crowns talk about a roster or
 10  registry of qualified pathologists.  And in this regard
 11  we submit that the Coroner's Office through the Chief
 12  Forensic Pathologist will have overall responsibility for
 13  the quality of pathologists.
 14                 The roster will be -- will designate
 15  forensic pathologists and pediatric pathologists who will
 16  be selected, supervised, and removed for cause by a
 17  committee chaired by the Chief Forensic Pathologist.  In
 18  terms of the procedural rule, such as challenging that
 19  removal that will be up to the committee that we -- we
 20  contemplate.
 21                 We go on to say that only pathologists
 22  from this roster should be performing autopsies pursuant
 23  to a coroner's warrant in cases of suspicious pediatric
 24  death. 
 25                 And we also say that defence counsel

121
  1  should have access, full access, to this roster or
  2  registry for second autopsies or a consultation that they
  3  need in the course of representing their -- their
  4  clients.
  5                 We then move on to page 6 to what we call
  6  double-doctoring, and where we believe that the ideal
  7  system would be to have a quali -- to have qualified
  8  pathologists, both forensic pathologists and pediatric
  9  pathologists.
 10                 We are not wedded to this particular
 11  recommendations.  We say that the coroner and the
 12  Hospital for Sick Children recommend a multi-disciplinary
 13  approach.  That is certainly a pro -- an improvement from
 14  what we've seen in the past and we would certainly, in
 15  light of the paucity of pathologists in this province
 16  today, would agree with that recommendation.
 17                 We then go on, Commissioner, at page 7 to
 18  recommend a quality assurance program.  And here we are
 19  concerned with the performance of the forensic
 20  pathologist in what's been referred to in these
 21  proceedings as the judicial phase of their work.  And --
 22  and from reading the other submissions, it would appear
 23  that there is a consensus that a council monitoring
 24  letter similar to that used in respect of witnesses from
 25  the CFS would be a good idea.  

122
  1                 And behind Tab A of the brief, we -- we
  2  have come forward with a -- a sample letter which could
  3  be used and obviously reflects the present letter from
  4  the CFS.  But this -- these are the kinds of questions --
  5  you may recall in my questioning of Dr. Pollanen and
  6  Justice McMahon that these are the kinds of issues that
  7  would relevant, and would be excellent feedback in
  8  respect of the quality of pathologist as evident -- as --
  9  as witnesses, and the kind of information that the Chief
 10  Forensic Pathologist should have in terms of the register
 11  or roster that we have recommended.
 12                 COMMISSIONER STEPHEN GOUDGE:   Did the
 13  OCAA have any views, Mr. Cavalluzzo, on disclosability of
 14  quality assurance information like this?
 15                 MR. PAUL CAVALLUZZO:   Yes, we do.  And --
 16  and we -- we touch on that, but just let me answer that
 17  right now.  Our -- our submission to you is that there
 18  should be a balance between quality assurance, whether it
 19  be peer review or whatever, and disclosure.  We're
 20  concerned that the disclosure may impede upon a fully
 21  robust peer review or quality assurance, and we think
 22  that it's really not rocket science to come up with some
 23  kind of consistency where we can have a good professional
 24  development program for pathologist.
 25                 Whereas at the same time have disclosure

123
  1  in respect of errors which have been -- which have been
  2  done.  But we're concerned about that tension between the
  3  scope of the disclosure --
  4                 COMMISSIONER STEPHEN GOUDGE:   Do you have
  5  any views on the rocket science that would resolve it?  I
  6  mean, how do you strike the balance?
  7                 MR. PAUL CAVALLUZZO:   Well, we -- we have
  8  -- we have come up with -- it's not exactly rocket
  9  science, but we have come up with a -- a suggestion in
 10  the brief as to what -- what occurs in the -- in the
 11  Centre of Forensic Science.  And -- and you've heard
 12  evidence there.  And that is referred to in paragraph 33. 
 13                 And -- and you may recall from the
 14  evidence of Dr. Prime that he -- that he's concerned
 15  about disclosure requests, and he's also concerned about
 16  to have a candid and frank professional development
 17  process.  
 18                 And -- and his answer to the disclosure is
 19  that if there are any errors or mistakes which have been
 20  discovered then a revised report will be issued, and at
 21  that point in time there will be disclosure respecting --
 22                 COMMISSIONER STEPHEN GOUDGE:   Right.  
 23                 MR. PAUL CAVALLUZZO:   -- the quality of
 24  the  -- of the -- in our case -- the pathologist.  
 25                 COMMISSIONER STEPHEN GOUDGE:   Who strikes

124
  1  the balance in the end?  I mean, is it the -- in our case
  2  -- in his case, he would take the first cut at it, I
  3  assume.
  4                 MR. PAUL CAVALLUZZO:   Right.  
  5                 COMMISSIONER STEPHEN GOUDGE:   In the case
  6  we're dealing with would it be the Chief Forensic
  7  Pathologist?
  8                 MR. PAUL CAVALLUZZO:   That's correct. 
  9  Ultimately from our perspective, it is the Chief Forensic
 10  Pathologist  who is responsible.  He or she will have a
 11  committee who will assist them, but certainly it will be
 12  he or she that ultimately is responsible.  
 13                 And -- and leads to a point that -- 
 14                 COMMISSIONER STEPHEN GOUDGE:   I take it
 15  that general note -- because this is an issue that
 16  clearly affects everybody.  At some point there is a
 17  balancing, as you say, between the gravity of the quality
 18  assurance comment and disclosure?
 19                 MR. PAUL CAVALLUZZO:   That's correct.  
 20                 COMMISSIONER STEPHEN GOUDGE:   And it's
 21  really a question, I take it from your perspective, of
 22  fine tuning that?
 23                 MR. PAUL CAVALLUZZO:   That's correct.
 24                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
 25                 MR. PAUL CAVALLUZZO:   And there will --

125
  1  there will reach a point -- there will reach a point --
  2  and if you refer to page 8 in Recommendation 11 -- there
  3  will reach a point whereby the quality of the pathologist
  4  is such that he or she will be removed from the list, and
  5  there will be obviously full disclosure at that point in
  6  time, but there will be other implications in respect of
  7  that.
  8                 And in paragraph 11 we talk about if that
  9  occurs, if there is such a removal, that the Attorney
 10  General -- and in conjunction with the Coroner's Office
 11  will conduct and -- immediately review of all cases where
 12  individuals may have been prejudiced as a result of the
 13  evidence that has been given by the pathologist, so that
 14  there are real and severe implications. 
 15                 COMMISSIONER STEPHEN GOUDGE:   Mm-hm.  
 16                 MR. PAUL CAVALLUZZO:   If we can move on
 17  then, Mr. Commissioner, to -- to page -- page 14.  And
 18  this reciprocal disclosure -- and as My Friend, Mr. Di
 19  Luca pointed out, there seems to be consensus here, and -
 20  - and from the Crown's perspective, this is a crucial --
 21  a crucial part of the process.
 22                 Obviously we talk about, in terms of
 23  improving this kind of evidence, we talk about a register
 24  or a roster, we talk about quality assurance programs,
 25  and -- and would be coming to joint education.  But we

126
  1  agree that although it is of such important -- there are
  2  constitutional impediments where it should not be
  3  mandatory.  However, the system should encourage it to a
  4  point where it becomes the expectation rather than the
  5  exception.  
  6                 Obviously we've seen evidence before you
  7  where it -- it does work in other countries.  It
  8  obviously to a certain extent works in our civil system
  9  of advocacy.  And -- and if we look at its -- its purpose
 10  -- and people have said, Well that could narrow the
 11  issues, it could clarify the issues, and certainly that's
 12  an important part of it, but from our perspective, it's
 13  so important because it advances the ultimate aim of the
 14  system, which is the truth seeking function.  
 15                 And -- and if I can just stop at this
 16  point to -- just to look at some brief evidence before
 17  you, because we see graphically -- we see graphically in
 18  the evidence before you, what happens when there is
 19  reciprocal disclosure and what happens when there isn't.
 20                 And -- and if we can look, for example,
 21  just at two (2) cases you heard in respect of the -- of
 22  the Crown panel that you heard some months ago, and that
 23  is we heard the Sharon case.  We heard that earlier this
 24  morning from Mr. Wardle where Mr. Bradley was involved,
 25  and where Mr. Bradley had full access to the defence

127
  1  expert evidence.  And -- and we saw how that led to a
  2  just result, because it was in the true nature of a
  3  scientific inquiry, in respect of the scientific
  4  evidence.
  5                 Graphically compared to that, we look at
  6  the evidence in the Amber case where we saw that a young
  7  Crown attorney who was two (2) years out was in effect
  8  bombarded with nine (9) or eleven (11) expert reports on
  9  the verge of the experts testimony.  And we saw what --
 10  and that ultimately lead to the -- Mr. Justice Dunn's
 11  judgment.  
 12                 So that we are strong -- strongly urge you
 13  to recommend that the system strongly support reciprocal
 14  disclosure, because in the nature -- of the nature of any
 15  kind of scientific method, this is a very, very,
 16  important -- important part of it.
 17                 There is one (1) -- one (1) point that I
 18  want to draw to your attention which you may have to
 19  resolve, because there is a dispute here between the
 20  Crown attorney's and defence counsel on this point.  We
 21  heard in the evidence some suggestion that if the defence
 22  discloses its pathology evidence that the Crown's
 23  evidence is somehow frozen or crystalized at -- at that
 24  point in time.  And the purpose behind this
 25  crystallization was -- as was put, to prevent the Crown

128
  1  from shoring up its case.  
  2                 Now we submit that this suggestion should
  3  be rejected in light of the ultimate purpose of the -- of
  4  the system and of the reciprocal disclosure, which is to
  5  give the Court accurate and reliable evidence.  And as --
  6  was I saying, repeat -- was demonstrated in the Sharon
  7  case, the defence's expert evidence was crucial in regard
  8  to what ultimately happened.  
  9                 And -- and what we submit is that the
 10  reciprocal disclosure of pathological evidence should be
 11  viewed as part of the scientific -- scientific inquiry,
 12  and not another aspect of the adversarial process.  If a
 13  Crown counsel is abusing the process, there are sanctions
 14  which are available.  It shouldn't be such that you throw
 15  the baby with the bath water so to speak, in the sense
 16  that you interfere with the scientific inquiry process by
 17  crystalizing or by freezing the science at a particular
 18  point in time.
 19                 Mr. Commissioner, part of the reciprocal
 20  disclosure that I won't expand on is the -- is the pre-
 21  trial meetings of experts.  I think there's a consensus
 22  from everybody that that is a  -- a excellent idea.
 23                 The only dispute would appear to be
 24  whether lawyers should be attending at these meetings,
 25  and I think that other than that, there is -- is

129
  1  consensus.
  2                 Moving on now to what has been referred to
  3  as -- in our submissions, as voir dires, and demonstrable
  4  reliability.  And there has been a -- a -- this is at
  5  page 18.
  6                 COMMISSIONER STEPHEN GOUDGE:   Right.
  7                 MR. PAUL CAVALLUZZO:   There has been a
  8  suggestion, particularly in a paper, that there should be
  9  a requirement that a voir dire be held before pathology
 10  evidence is admitted to ensure demonstrable reliability.
 11                 And -- and we submit respectfully, because
 12  we do have a great deal of respect for the paper, which
 13  was produced by Professor Edmond for you, but we submit
 14  that this is not a sound proposal for a number of
 15  reasons, which basically reflect what Justice Rosenberg
 16  had said to you.  And -- and these are captured in -- in
 17  paragraph 49, on page 19.  
 18                 He testified first that it's very
 19  questionable as to whether reliability is an appropriate
 20  test.
 21                 How does one adequately access
 22  reliability, and who should be doing this assessment. 
 23  Former Chief Justice LeSage was concerned that this
 24  suggested approach may involve the judge entrenching upon
 25  the -- the province of the jury as a trier of fact.  And

130
  1  we make a suggestion that perhaps a clearer test would be
  2  whether the evidence is of prima facia reliability.  Such
  3  a test is more in keeping with a judge's role as
  4  gatekeeper.  
  5                 Secondly --
  6                 COMMISSIONER STEPHEN GOUDGE:   That sounds
  7  like Mr. Di Luca's threshold reliability.
  8                 MR. PAUL CAVALLUZZO:   That's correct. 
  9  And -- and it's just that we -- we underline what Justice
 10  Rosenberg said, that we don't have any empirical evidence
 11  as far as the kinds of suggestions that are being put
 12  forward, and we've got to -- we've got to move in an
 13  incremental fashion.  It's very -- it's very easy, for
 14  example, to say where -- where there is a clear
 15  controversy in the scientific community if we can move
 16  back from the evidence that we have heard.  
 17                 For example, is there -- as far as climate
 18  change is concerned, is there a clear controversy in the
 19  scientific community?  Well, most people would say no,
 20  but there are ten or 15 percent of scientists who say
 21  that this is all nonsense.  
 22                 So that for us to be put in a -- in -- in
 23  tightly bound general rules saying this kind of thing, I
 24  don't -- I think we have to move very, very carefully,
 25  and very, very slowly in this regard.

131
  1                 Justice Rosenberg also talked about scarce
  2  judicial resources.  We've heard a lot of comment, indeed
  3  in the Saturday Globe and Mail.  We heard a lot of
  4  comment about the time that -- that criminal trials are
  5  taking because of  -- of pretrial motions, and so on, and
  6  so forth.
  7                 I'm not criticising anybody, but scarce
  8  judicial resources, as you know, is an important feature
  9  that we have to take into account.
 10                 And then finally, he talked about pre-
 11  trial process in which the defence is not actively
 12  engaged, will not lead to more informed decisions on
 13  reliability.
 14                 And then on the next page, Commissioner,
 15  in paragraph --
 16                 COMMISSIONER STEPHEN GOUDGE:   But that
 17  sentence, there is sort of a fair number of negatives in
 18  that.  
 19                 Does that mean that if there were to be a
 20  pre-trial process, the OCAA says the defence should be
 21  actively engaged?
 22                 MR. PAUL CAVALLUZZO:   Yes.  And we -- we
 23  refer to that on the next page, because we say that
 24  before we -- we move to a mandatory requirement that
 25  these kinds of voir dires should take place, we say that

132
  1  there are other policy options which are available to us. 
  2  And for example, we -- we've talked already about a -- a
  3  roster.  We're going to talk about a comprehensive joint
  4  education program.  We're going to encourage reciprocal
  5  disclosure.  We're going -- going to encourage pre-trial
  6  meetings.  
  7                 And then we go on to say that obviously
  8  we're not opposed to pre-trial motions, or at least voir
  9  dires concerning the admissibility of this kind of
 10  evidence if it's requested by the defence, and if there's
 11  justifiable reasons for conducting these kinds of
 12  proceedings.
 13                 And we're saying that these kinds of
 14  proceedings will become more meaningful if we have all of
 15  these other things like reciprocal disclosure, joint
 16  education, a roster of qualified pathologists, and so on. 
 17  And the final point we make is that we agree that the --
 18  particularly in this area, that the judge should be in a
 19  position at the end of the case to draw whatever limits
 20  or problems he or she sees with the evidence.  And -- and
 21  that's a very important direction which the judge can
 22  give.
 23                 One (1) -- one (1) final note on this
 24  area, and -- and that is that the Crown says that
 25  hopefully the result of this Inquiry will not be that all

133
  1  pathology evidence will be viewed with serious suspicion
  2  and scepticism.  What we saw in these proceedings,
  3  unfortunately, was pathology evidence being given by a
  4  witness who was not qualified or competent to give such
  5  evidence and who had very little systemic supervision and
  6  oversight.
  7                 In our view pathology is a legitimate and
  8  reliable science, which is of fundamental importance, as
  9  -- as Mr. Wardle said, to our criminal justice system. 
 10  And I think if we just look back and -- and review some
 11  of the evidence of some of the pathologists we've heard,
 12  such as Dr. Pollanen and so on, we can understand the
 13  importance and reliability of this kind of evidence. 
 14  Obviously there are limits to it.  
 15                 It's a constantly evolving or changing
 16  science, but certainly that should not detract from its
 17  fundamental importance in the system.  And -- and
 18  certainly the gatekeeper role which is to be played by
 19  the judge will be a very important one in -- in
 20  supervising the use of this kind of evidence.
 21                 Commissioner, we move on now to page 21,
 22  and here we are talking about joint education.  As you
 23  know, currently there is no education program in
 24  pediatric pathology.  This kind of program is not
 25  available to the Defence Bar.  And here I emphasize we're

134
  1  talking about the Defence Bar, or as Mr. Di Luca put it,
  2  the frontline workers in the system.
  3                 Two (2) very experienced Crown attorneys
  4  have worked on a sample course, and if you go to Tab B of
  5  the brief we have a syllabus of what we think would be
  6  very, very important aspects of -- of such a course; both
  7  the legal aspect as well as the medical aspects.  And --
  8  and we emphasize that this is a matter very much in
  9  process, that the Crown attorneys will be -- will be and
 10  have be -- have sought input not only from the Criminal
 11  Lawyer's Association, but from the judiciary, as well as
 12  the -- as well as the Chief Forensic Pathologist.
 13                 So this is a very, very important step,
 14  but it's one (1), once again -- and I emphasize it's in
 15  process  -- we want a lot of input from other
 16  stakeholders.
 17                 What we see in terms of the scope of this
 18  program is that it would be an annual event.  It would be
 19  funded by the Ministry of the Attorney General and the
 20  Chief Coroner's Office.  It would be a two (2) day annual
 21  course, which would be put on DVD and available to those
 22  counsel that cannot attend the course.  We foresee that
 23  it would be a course where there would be availability
 24  for about seventy (70) participants, both Crown -- Crowns
 25  and defence counsel, and obviously those that conduct or

135
  1  will conduct pediatric death cases.
  2                 So we think that that's -- that's very
  3  important, but once again we -- we will be receiving more
  4  input as far as the content of the course is concerned.  
  5                 Two (2) -- two (2) final matters, Mr.
  6  Commissioner -- I think I'm reaching my -- my dead point
  7  -- but I -- I think I -- I can briefly summarize them. 
  8  If we move now to page 23, which we refer to as
  9  "Prosecutions in the Transitional Period."  
 10                 Now I want to -- to say at the outset that
 11  we do agree with the -- that the Government initiatives
 12  which have been put forward by the Ministry of the
 13  Attorney General is a good first step.  We don't think
 14  that they go far enough, because we believe that the team
 15  that will be established by these initiatives should have
 16  more than an advisory role in a transition or the first -
 17  - we call it a two (2) years period, which will be the
 18  transitional period.  
 19                 We -- we think it's important that the
 20  team would have a regional representation so that the
 21  expertise would be spread across the province.  And we
 22  say that in the transitional period or the two (2) years
 23  that senior trained counsel from the team would -- would
 24  prosecute the cases in their own region, that is the
 25  region from which they came, as lead counsel along with

136
  1  another Crown counsel from the region.  
  2                 Now although and -- and certainly we
  3  emphasize that although each region has experienced
  4  counsel to prosecute cases generally, this Inquiry has
  5  shown the serious complexity of a pediatric homicide
  6  prosecution.  And we respectfully submit that until
  7  adequate expertise is developed across Ontario that these
  8  prosecutions should be lead by specially trained Crowns
  9  in the -- in the transitional period.  
 10                 COMMISSIONER STEPHEN GOUDGE:   And
 11  thereafter it becomes an advisory --
 12                 MR. PAUL CAVALLUZZO:   That's correct.
 13                 COMMISSIONER STEPHEN GOUDGE:   -- takes on
 14  an advisory role?
 15                 MR. PAUL CAVALLUZZO:   That's correct. 
 16  Finally, Commissioner, we -- we deal with the pre-charge
 17  screening at page 27 of the brief.  And -- and just two
 18  (2) points that I would make is that first of all, we
 19  submit that Crown should not take an active role in the
 20  investigative phase of the coroner's process except in
 21  very exceptional circumstances.  
 22                 And -- and we say here that unlike the
 23  police, prosecutors really don't have a lot to add in
 24  respect of the process at this early stage in the death
 25  investigation.  We think that it's a good check and

137
  1  balance to keep the Crown independent from the process at
  2  this early -- early stage to avoid confirmation bias or
  3  tunnel vision.  
  4                 And secondly, as far as the police are
  5  concerned, we -- we suggest that the Crown should not
  6  take an active role in the criminal investigation
  7  conducted by the police except the traditional role to
  8  provide legal advice regarding available charges.  And if
  9  -- if advice is going to be given -- legal advice is
 10  going to be given, it should only be done after the
 11  completion of the autopsy report.  
 12                 So in -- in conclusion, Commissioner, once
 13  again we thank you and your counsel and your staff, and -
 14  - and we hopefully are -- are of some assistance to you. 
 15  And we submit that these recommendations are intended to
 16  andr -- address -- view to be the main systemic issue
 17  facing the Inquiry, and that is the need for reliable and
 18  accurate pathology evidence.  
 19                 From the perspective of the criminal
 20  justice system, the reliability of such evidence is
 21  crucial in fulfilling the truth seeking function of a
 22  process.  From the perspective of Crown counsel, the
 23  reliability of such evidence is crucial in that it goes
 24  to ensure that justice is done.  
 25                 Finally, from the perspective of the

138
  1  accused, the reliability of such evidence is fundamental
  2  in that it ensures a fair trial and will avoid the kinds
  3  of miscarriages of justice that unfortunately we have
  4  reviewed in this proceedings.  
  5                 Thank you very much.
  6                 COMMISSIONER STEPHEN GOUDGE:   Thank you,
  7  Mr. Cavalluzzo.  
  8                 We will rise now, I think, until 2:15, and
  9  resume with you, Ms. Twohig.
 10  
 11  --- Upon recessing at 11:51 a.m.
 12  --- Upon resuming at 2:15 p.m.
 13  
 14                 THE REGISTRAR:   All Rise.  Please be
 15  seated. 
 16                 COMMISSIONER STEPHEN GOUDGE:   Mr.
 17  Manuel...?
 18  
 19  SUBMISSIONS BY MR. WILLIAM MANUEL:
 20                 MR. WILLIAM MANUEL:   Commissioner.  Like
 21  all the other counsel that have begun speaking before
 22  you, Ontario is also pleased with the conduct of this
 23  Inquiry, needless to say, Commissioner, and the manner in
 24  which it has been proceeded with.
 25                 The written submissions of the parties

139
  1  have been comprehensive, and we've attempted to file
  2  written submissions dealing with the issues of concern to
  3  the Ministry of the Attorney General, Crown Attorney's,
  4  the Ministry of Community Safety and Correctional
  5  Services and the OPP and the Ministry of Children and
  6  Youth Services.
  7                 In the time that's allotted, I would like
  8  to cover -- highlight a few points and areas beginning
  9  with the Ministry of the Attorney General initiatives in
 10  this matter,  addressing a few issues in respect to the
 11  coronial system, the review of past cases and, finally, a
 12  few comments on compensation that has been submitted to
 13  you.  
 14                 I have other points, if time permit, but
 15  those are the points that I would like to cover.
 16                 Dealing with the MAG initiatives, Your --
 17  Commissioner, it's important to note that the concept
 18  behind them is an advisory team.  It is not a prosecution
 19  team.  And the concept behind them is that the expertise
 20  in this area is not necessarily a prosecution expertise.  
 21                 It's not that the Ministry lacks
 22  prosecution expertise throughout the Province, the issue
 23  is how to concentrate and make available, to those
 24  prosecutors, the expertise in forensic pediatric
 25  pathology.  And that's the purpose of the team and -- and

140
  1  the initiatives that have been adopted.
  2                 To address some of the initiatives but,
  3  first of all, tracking of pathologists; that will allow
  4  immediate and comprehensive review of cases where issues
  5  arise.  That's an important initiative from our
  6  perspective.
  7                 Also tracking adverse judicial comment. 
  8  That remains to be determined and defined, exactly what
  9  we're talking about there, but everyone understands that
 10  Justice Dunn's decision is -- should have been perceived
 11  as an adverse judicial comment, and it should have had
 12  some recognition within the system and should have been
 13  addressed.  
 14                 And the purpose of tracking that type of
 15  information is to ensure that those responsible, it comes
 16  to their attention, and it's not left to individual Crown
 17  attorney's to decide what is -- is or is not necessary.
 18                 We're pleased to see that, without
 19  exception, the parties involved here adopt the
 20  initiatives and approve of the initiatives.  There are a
 21  couple of points that we can say they quibble with, and
 22  that is, first of all, is a dedicated team of
 23  prosecutors.
 24                 And from our perspective, Commissioner,
 25  that was looked at.  It's simply not feasible.  These

141
  1  cases are being prosecuted today.  Are they to be taken
  2  away from the prosecutors that are doing them and to be
  3  given to new prosecutors?
  4                 These cases -- to say that the team would
  5  prosecute all cases for a period of two (2) years; any
  6  case starting now, it's unlikely to finish in two (2)
  7  years.  The -- the concept of a dedicated team of
  8  prosecutors, apart from its practical hardships that it
  9  would impose on that team, is simply not feasible.
 10                 The other issue that has been raised in
 11  respect of the -- the resource team is direct access by
 12  defence counsel to the team and, if appropriate, and if
 13  needed, that can be done.
 14                 But the concept is again, that these
 15  people --this team is not to assume responsibility for
 16  the prosecution of these cases.  The prosecution of these
 17  cases has to remain in the hands and the responsibility
 18  of the prosecutor.
 19                 So there is a process where issues are
 20  taken with -- as with any Crown attorney, to go through
 21  the system and if, as part of that, access to the team is
 22  needed, it will be arranged.
 23                 But understand that part of the concept of
 24  this, that all these prosecutors are going to be
 25  reporting on their cases to the team.  They're going to

142
  1  be taking guidance from the team.
  2                 Decisions are going to be made in the
  3  consistent manner, and with a -- with an appreciation of
  4  the overall picture, rather than focussed on the
  5  individual cases.
  6                 I think, Commissioner, those are really
  7  the points that I wanted to emphasize in respect of the
  8  Criminal Law Division Child Homicide Resource Team.
  9                 The other aspect I -- I think is worth
 10  mentioning is that we are going to encourage, and -- the
 11  Team and Crown attorneys are going to encourage pre-
 12  charge consultation on a legal issue, not on the
 13  evidence.
 14                 Not to mean -- I take Mr. Cavalluzzo's
 15  point.  Crown attorneys are not there to investigate, but
 16  where the pathology is so fundamental, you know, it -- it
 17  -- and crucial to was there a crime?  When did the crime
 18  commit?  
 19                 So crucial to these issues of charging
 20  that perhaps legal advice is advisable to -- to determine
 21  is there a reasonable prospect of conviction in the same
 22  manner that it was done in the Nicholas case, where Crown
 23  Attorney Young met with Dr. Smith, and reviewed the
 24  evidence to determine is there a reasonable prospect of
 25  conviction of a charge to be laid here, and determined

143
  1  there wasn't.
  2                 So I think that's an additional safeguard
  3  in these cases.
  4                 COMMISSIONER STEPHEN GOUDGE:   How would
  5  you see that being put into effect?
  6                 MR. WILLIAM MANUEL:   Well, it's -- in the
  7  -- in respect of the individual police force, of course,
  8  it's their decision.  We can't -- we're not in a position
  9  to tell the police that they must consult.
 10                 So, it's a case of our -- the Ministry of
 11  the Attorney General and Crown attorneys in the area,
 12  recommending and encouraging them.
 13                 Now, I should say that in the majority of
 14  the cases that you have reviewed, that was done.  The
 15  Crown attorneys were consulted in these cases.
 16                 So, I think police have a sensitivity to
 17  the complexity of the case that they're -- they're met
 18  with.  It's one (1) thing if you find -- not to take --
 19  to take one (1) example, but you find a baby in a -- in a
 20  plastic bag in a -- in a closet, or a baby in a -- in the
 21  toilet.
 22                 I mean, I think, in those cases, charges
 23  were laid without consult -- consultation, but -- but
 24  where you have a complex case, I think -- I stand to be
 25  corrected, but the majority of the cases that I

144
  1  recollect, there was pre-charge consultation.
  2                 So, I don't think that it should be a --
  3                 COMMISSIONER STEPHEN GOUDGE:   So it would
  4  be on the basis --
  5                 MR. WILLIAM MANUEL:   -- something --
  6                 COMMISSIONER STEPHEN GOUDGE:   -- of
  7  encouraging?
  8                 MR. WILLIAM MANUEL:   Correct.
  9                 COMMISSIONER STEPHEN GOUDGE:   Not
 10  requiring?
 11                 MR. WILLIAM MANUEL:   Not requiring. 
 12  That's correct, sir.
 13                 And, in addition, as part of the team, the
 14  team is committing to enhanced education of the members
 15  of the team, so that they are current with the issues as
 16  they evolve in the science, and can advise appropriately
 17  the Crown attorneys handling these cases.
 18                 So, I think those initiatives, from our
 19  perspective, MAG feels -- the Ministry of the Attorney
 20  General wants to ensure you and the public that the
 21  Ministry of the Attorney General wants to be part of the
 22  solution here.
 23                 So tracking pathologists, tracking adverse
 24  judicial common, creating an expertise in the science
 25  within the -- the Ministry, and making that available to

145
  1  prosecutors dealing with these cases, should help ensure,
  2  with all of the other changes that are going to take
  3  place, that we don't find ourselves in a repetition of
  4  this situation.
  5                 COMMISSIONER STEPHEN GOUDGE:   The
  6  tracking you are referring to would be tracking through
  7  the Crowns that are in contact with the pathologist?
  8                 MR. WILLIAM MANUEL:    Correct.  Yeah. 
  9  Well, what the concept, Your Hon -- Commissioner, is --
 10  is caught in Number 2.
 11                 That what we would do is we would create
 12  an internal searchable data base which would be a
 13  requirement that all child prosecutions be registered
 14  there with the pathologists, so that they're tied.
 15                 So that if we need to review a
 16  pathologist, and find out what happened, we can do that. 
 17  That would of, I think, assisted in the reviews, or -- of
 18  Dr. Smith's cases, had we had such a system.
 19                 Moving from there to the reforms to the
 20  coronial system, it's important to the Province that all
 21  the parties appear to support the continuation of the
 22  coronial system.
 23                 And I think that's a -- a recognition that
 24  it has strengths, and that it's a case of ensuring that
 25  it performs properly going forward.

146
  1                 From our perspective, the most important
  2  feature, we believe, in restoring confidence in pediatric
  3  forensic pathology in respect of the coronial system is
  4  improved oversight, peer review quality control,
  5  training, and education.
  6                 I -- we say, with respect, that's -- the
  7  quality of the product is the issue.  And that is what's
  8  going to ensure the quality of the product, in our
  9  respectful submission.
 10                 That's the focus of the Inquiry, and we --
 11  we ask that it be the focus of the recommendations going
 12  forward so that that is -- the public can know that --
 13  have confidence in pediatric forensic pathology.
 14                 On a side issue on that, in terms of
 15  disclosure, our position on quality control and peer
 16  review is that the purpose of that is the quality of the
 17  product that goes out.  And that is -- the purpose of
 18  that is to guarantee the reliability of the product that
 19  goes out.  It should not be subject to routine disclosure
 20  in subsequent cases; it will defeat the purpose if that
 21  is done, in our respectful submission.
 22                 COMMISSIONER STEPHEN GOUDGE:   When do you
 23  say disclosure should be required?
 24                 MR. WILLIAM MANUEL:   No, that's -- that's
 25  when we get to the point where if the quality control and

147
  1  the peer review works, right, and the objective of the
  2  organization is that they stand behind the report that
  3  goes out the door.
  4                 Now, as you hear from Mr. Prime, if
  5  something happens to throw that report into doubt, of
  6  course that would be disclosed; of course, that's no --
  7  no issue.  But what goes behind the report, getting to
  8  the report, all the steps getting to that report are not
  9  subject to disclosure.  It's the report that stands on
 10  its own and the person --
 11                 COMMISSIONER STEPHEN GOUDGE:   What about
 12  other quality assurance devices like counsel letters?
 13                 MR. WILLIAM MANUEL:   Well --
 14                 COMMISSIONER STEPHEN GOUDGE:   Are they
 15  disclosable in the next case?
 16                 MR. WILLIAM MANUEL:   They aren't, and the
 17  CFS  -- I commend to you the system that the CFS works,
 18  uses, and -- and that has worked well for them.  If these
 19  letters are going to be received, they're going to be a
 20  double-edged sword.
 21                 I mean, it's -- it's -- you put yourself
 22  at risk if every counsel letter has to be disclosed. 
 23  It's just -- I think it's not the purpose of the
 24  objective there.  The objective is to ensure the quality
 25  of the product.

148
  1                 If the quality of the product is thrown
  2  into question -- for example, if there is a second
  3  opinion within the organization -- I think we heard it
  4  from the Australian pathologist in one (1) case where he
  5  said he just couldn't agree with it, but he produced a
  6  second report and they both went forward and -- and let
  7  the system decide on that.
  8                 But, absent that situation, the -- the
  9  safeguards and the protections to ensure the quality of
 10  the report should remain behind the report.  
 11                 Now, the coroner is separately
 12  represented, as you know, in this -- in this matter, and
 13  I don't intend to speak on their behalf about the
 14  improvements they've already made and the ones that they
 15  propose in detail, but to say -- safe to say a few things
 16  -- one (1) a point of principle.  Not all of the
 17  improvements require legislation and regulation.
 18                 I commend to you the CFS, after the
 19  Kaufman Inquiry; there is no legislation there, there is
 20  no regulation there.  They put in all their quality
 21  control and peer review and all their systems that work. 
 22  You know, the -- the procedures and policies that are in
 23  place, if they're put into legi -- legislation is hard to
 24  achieve, it's inflexible, hard to amend.
 25                 There's something -- times where you jump

149
  1  to the most extreme remedy, whereas what we're saying is
  2  lets look at the less -- the immediately effective and
  3  less extreme remedies first before we go to enshrining
  4  things in legislation, and that most of what we believe
  5  needs to be addressed can be addressed by proper policies
  6  and procedures.
  7                 The changes, in our view, have to be
  8  sustainable and defenceable regardless of personalities. 
  9  They shouldn't depend on personalities; that's the point
 10  of having processes and procedures, so that the system
 11  works regardless of whoever -- who is the incumbent in
 12  the position.
 13                 And the goal, as I think all parties
 14  recognise, must be to ensure that bad pathology is not
 15  presented to the Court and that good pathology is.  
 16                 Your Honour, those are my -- Commissioner,
 17  those are my comments on the coronial system issue.
 18                 The review of past cases; a review is an
 19  ambiguous term.  The devil is undoubtedly in the details
 20  in that respect.   We start from noting that Dr. Smith's
 21  cases had been reviewed from 1991 to 2001, as you've seen
 22  through the coroner's review and this Inquiry.
 23                 OCCO has established a subcommittee of the
 24  Forensic Sciences Advisory Committee, which includes
 25  AIDWYC and MAG representation, to address Dr. Smith's

150
  1  pre-1991 cases that resulted in a conviction, so that
  2  process is there to be used.
  3                 MAG will respond to the findings of a
  4  review of any of Dr. Smith's earlier cases with the same
  5  cooperation that showed in respect of the 1991 to 2001
  6  cases, as in Mullins-Johnson.
  7                 The focus had got to be, is there a
  8  question about the pathology; is this a case of bad
  9  pathology?  If it is, then the significance of that can
 10  be assessed in the context of the overall prosecution,
 11  but, fundamentally, the first question is:  Is there --
 12  is this is a case of bad pathology?
 13                 And -- and considering the necessity or
 14  scope of any review of further cases, it's important to
 15  emphasize that we cannot assume -- and I think it would
 16  grossly unfair to the other pathologists that you heard
 17  testify in front of you -- that they would suffer from
 18  the same failings as Dr. Smith, the same failure to
 19  appreciate his own abilities and that he was giving
 20  opinions outside his area of expertise.
 21                 You heard from Dr. Rao, Dr. Shkrum,
 22  doctors from the Hospital for Sick Kids.  These are
 23  people that -- cases that you would be reviewing if you
 24  asked -- adopted what AIDWYC suggest and  review all
 25  shaken baby cases, review all pediatric cases.  

151
  1                 There's simply no basis, I submit, in the
  2  evidence to suggest that the problems that we found with
  3  Dr. Smith, which are fundamentally a lack of expertise
  4  and a failure to appreciate that lack of expertise, are
  5  endemic in the pathology profession, I think would be, I
  6  say, grossly unfair for them to proceed on that kind of
  7  an assumption.  
  8                 COMMISSIONER STEPHEN GOUDGE:   A number of
  9  the parties are asking about Shaken Baby Syndrome --
 10                 MR. WILLIAM MANUEL:   They are.
 11                 COMMISSIONER STEPHEN GOUDGE:   -- cases. 
 12  What is the Province's position on that?
 13                 MR. WILLIAM MANUEL:   Well, first of all,
 14  let me say the Province is waiting for your
 15  recommendation on that.  We're --
 16                 COMMISSIONER STEPHEN GOUDGE:   So I go
 17  first, is that --
 18                 MR. WILLIAM MANUEL:   Well, no, I have
 19  more to say.  I just said "first."  Well, we want to be
 20  sensitive, Commissioner, that we're not appearing to
 21  preempt of suggest that having asked to you make a
 22  recommendation --
 23                 COMMISSIONER STEPHEN GOUDGE:   No, but I
 24  would welcome any thoughts you have on that.
 25                 MR. WILLIAM MANUEL:   Okay.  Our position

152
  1  on that is that shaken baby is a continuing controversy. 
  2  The most important service that could be done in that
  3  field would be to adopt the recommendation -- it's a
  4  worldwide problem, first of all.  It's not an Ontario
  5  problem -- and to adopt the recommendation.  
  6                 And the -- the plea, if I heard it
  7  correctly, of all the pathologists that you -- that have
  8  testified before you is a consensus has got to be
  9  achieved in the science on this issue.  And until that
 10  happens, these cases are going to continue to be decided
 11  on a case-by-case basis.  
 12                 That's the reality of our criminal justice
 13  system.  That's the reality of our civil justice system. 
 14  In the absence of a consensus, the cases have got to be
 15  examined on their merits.  Of course, that makes -- that
 16  sort of begs the question of what's on their merits.  
 17                 And it's important when we consider, on
 18  their merits, that any ambiguity that the -- the opinions
 19  be put into proper perspective; that the contrary view be
 20  put.  All of that is very, very important.  But I -- you
 21  know, I just take from one (1) paragraph of our reply, if
 22  I could ask, Commissioner, if you could pull up --
 23                 COMMISSIONER STEPHEN GOUDGE:   Sure.
 24                 MR. WILLIAM MANUEL:   -- it's paragraph
 25  21.  And I tried -- we tried to deal there -- it's in the

153
  1  context of the test for admissibility of scientific
  2  evidence, but we refer back to the experience in England
  3  when they had the shaken baby cases reviewed -- the
  4  Cannings' case -- and they -- the Court of Appeals
  5  appeared to state this principle that, you know, in a
  6  case of a clear confict -- conflict it would be unsafe to
  7  proceed.  
  8                 Well, a few years later the same court had
  9  to retreat from that when the -- it realized that each
 10  case has got to be decided on its facts.  And the
 11  ultimate question in each is:  Is the case proven beyond
 12  a reasonable doubt.  So we don't commend either the --
 13  the -- this concept of interjecting into the assessment
 14  of the evidence in these cases some tests that would
 15  exclude the evidence.  
 16                 The science is not there.  The science is
 17  not there to justify excluding the evidence.  There is a
 18  justification for making sure it's put into proper
 19  perspective, but each case has got to be decided on its
 20  own basis.  
 21                 As Dr. Rao said, they've been doing these
 22  cases since 1970.  They're doing them now.  They're
 23  having to testify in court today.  Are we to pull all
 24  those cases and review them before they happen?  That is
 25  the function of a court.  

154
  1                 And I don't take the Criminal Lawyers'
  2  Association skepticism of juries.  Juries don't decide
  3  questions of -- of disputes between science, but what
  4  they do decide are cases on specific the facts.  And
  5  sometimes they have to take into account an exper -- a
  6  difference in expert opinion and make their choice, not
  7  on which is the better opinion absolutely or abstractly,
  8  but which better fits the facts of the case that they
  9  have.  
 10                 So, I say to -- I, a doctor, recommend to
 11  you, Dr. Rao's position.  Until we know what we're
 12  looking for, we really can't do what you would want us to
 13  do.  
 14                 COMMISSIONER STEPHEN GOUDGE:   I take from
 15  the way you phrased paragraph 21, Mr. Manuel, that there
 16  is sort of an implicit endorsement of the English Court
 17  of Appeal approach?
 18                 MR. WILLIAM MANUEL:   To the --
 19                 COMMISSIONER STEPHEN GOUDGE:   That is, do
 20  not exclude, make sure there is a clear exposition of the
 21  controversy, let the trier decide?
 22                 MR. WILLIAM MANUEL:   Correct.  I think
 23  any -- correct.  That's our position.  
 24                 Now, I want to ensure that, you know, part
 25  of what we're saying here is the -- are the steps that

155
  1  the Coroner's Office is taking to ensure that
  2  pathologists are trained, competent, and reliable, and if
  3  there are any further cases that are identified, the
  4  processes are in place within the Ministry of the
  5  Attorney General to examine any conviction where the
  6  pathology or particular work of a particular pathologist
  7  is brought into a question, if it's a case of bad
  8  pathology.  
  9                 And if that's the opinion, then we will
 10  look at that, but we need to be told that.
 11                 COMMISSIONER STEPHEN GOUDGE:   Right.  
 12                 MR. WILLIAM MANUEL:   By say -- "we," I
 13  mean the Ministry of the Attorney General.   
 14                 And as you've heard and -- MAG will
 15  continue to cooperate in expediting the process of a
 16  review by the Minister.  
 17                 We have confidence that the Criminal Code
 18  provisions and the procedures and policies in place can
 19  address this.  If it requires an expansion of the
 20  Forensic Services Advisory Committee mandate, the multi-
 21  disciplinary body is there.
 22                 There's no need to create, in our
 23  respectful submission, new bodies to review either
 24  pathology or to review convictions.  They are -- the  --
 25  the bodies and people are there to be used, and can be

156
  1  used and should be used.
  2                 COMMISSIONER STEPHEN GOUDGE:   But you are
  3  really referring to the Forensic Services Advisory
  4  Committee?
  5                 MR. WILLIAM MANUEL:   Correct.  And -- and
  6  then all of the -- the -- the Ministerial review process,
  7  MAG's process for reviewing convictions --
  8                 COMMISSIONER STEPHEN GOUDGE:   Right.
  9                 MR. WILLIAM MANUEL:   -- the Court of
 10  Appeal, the Supreme Court of Canada.  In our submission,
 11  there's no demonstrated need to establish an entirely new
 12  system to address these problems.  The elements of the
 13  solution are there.  
 14                 Now, I think, Your Honour, those are my
 15  comments on the review of past cases.  
 16                 Compensation; to be clear, Commissioner,
 17  the -- Ontario is not saying no compensation.  Ontario is
 18  saying this is not the proper form, it was not examined
 19  into, evidence was not led on it, and the Order in
 20  Council, I say with respect, is clear on this; that the
 21  Government, as a matter of public policy, has reserved to
 22  itself the right to deal with issues of compensation
 23  after it receives your report; that the purpose of your
 24  report -- if you look at the mandate of the Commission
 25  under paragraph 4, the closing phrases which have been

157
  1  often quoted to you, have only been partially quoted to
  2  you:
  3                   "That the mandate shall conduct a
  4                   systemic review and assessment and
  5                   report on various things in order to
  6                   make recommendations to restore and
  7                   enhance public confidence in pediatric
  8                   forensic pathology in Ontario and it's
  9                   future use in investigations and
 10                   criminal proceedings."
 11                 That's the context of your mandate.
 12                 COMMISSIONER STEPHEN GOUDGE:   Mr. Wardle
 13  says he's not asking for compensation.  He's simply
 14  urging a recommendation for a process about compensation. 
 15                 What do you say to that?
 16                 MR. WILLIAM MANUEL:   I -- I say --
 17                 COMMISSIONER STEPHEN GOUDGE:   And my
 18  Order in Council.
 19                 MR. WILLIAM MANUEL:   Right.  Your Honour,
 20  the processes are there for you to interpret your mandate
 21  that you could go to where he wants you to go which is,
 22  in essence, he doesn't want you to recommend a process --
 23  lets call a spade a shovel.
 24                 He wants you to recommend a process that
 25  will provide no fault compensation.

158
  1                 COMMISSIONER STEPHEN GOUDGE:   I'm not
  2  sure I heard him put it that way.
  3                 MR. WILLIAM MANUEL:   Well, I think when
  4  you asked -- I -- that's how I heard it when you asked
  5  him a question -- is it fault based or cause based?  And
  6  it's -- his answer was it's not fault based.
  7                 Now, you know, that's a matter of public
  8  policy.  There -- the Government is not saying -- let me
  9  repeat myself -- not saying no compensation to people
 10  that have suffered.  But the evidence is not before you
 11  to create a whole alternative system.
 12                 What guidance would you give this
 13  assessment officer?  What would you do is hand him -- in
 14  essence, if you adopt Mr. Wardle's suggestion, you would
 15  hand him a blank chequebook and he would write -- start
 16  writing cheques for individuals.
 17                 That's not a compensation process or
 18  scheme, in my -- I respectfully submit.  
 19                 Now, a couple of other points; I think
 20  I've dealt with the threshold reliability.  In essence,
 21  it really relates -- in our view is in terms of
 22  admissibility evidence, the test is there in Mohan.
 23                 If it's clearly unreliable, of course it
 24  shouldn't be admitted.  But to put any further test that
 25  would take the case in essence out of the hands of the

159
  1  jury, which is what the Criminal Lawyer's Association
  2  recommendations amount to is, I think, going too far.
  3                 Now, on a few other issues -- points -- 
  4  Commissioner, I'd like to emphasize that the Ontario
  5  Provincial Police is aware of the complexities of these
  6  cases, and they will be working with OCCO and MAG to
  7  ensure that they're throughly investigated.
  8                 They are available to -- as a resource to
  9  other police forces.  And something that I think was
 10  averted to in passing, MAG's concept or -- or advisory
 11  team; if that could be done across police forces, there
 12  might be some benefit to that.
 13                 Of course it's not easy -- it's easy for
 14  MAG to do it, because we're one (1) entity, whereas
 15  police forces are across the Province.  But I think
 16  you've heard that there is expertise in Toronto and in
 17  the OPP that could be made available, and that's
 18  something you may want to consider.
 19                 COMMISSIONER STEPHEN GOUDGE:   Province
 20  wide?
 21                 MR. WILLIAM MANUEL:   On Aboriginal
 22  issues, we'd like to emphasize, Commissioner, that the
 23  OPP has a positive relationship with many Aboriginal
 24  communities.
 25                 They've gone through the experience of the

160
  1  Ipperwash Report, and the work, the improvements and the
  2  policies and the programs that they put in place to
  3  promote relationship building were complimented by the
  4  Commissioner in that report.
  5                 So I think it's unfair to suggest that the
  6  OPP is not adequately providing services to the remote
  7  communities and Aboriginal communities in death
  8  investigations.
  9                 They have the expertise, they provided
 10  their assistance in these cases, and I suggest that that
 11  should continue.
 12                 The -- they are sensitive, as they must be
 13  in law, to the distinction between a coroner's
 14  investigation, and a police investigation.
 15                 There's no suggestion in the evidence that
 16  they're not, so I -- I don't think that that should
 17  factor into their involvement in your consideration.
 18                 In the terms of the child welfare
 19  protection issues, the most significant one (1) that was
 20  dealt with in submissions is the whole issue of this --
 21  of notice and dealing with children that might have been
 22  adopted.
 23                 It would have been useful if we had some
 24  mag -- idea of the magnitude of that, because it's not
 25  clear to me how many of the cases the children were

161
  1  adopted outside the family members, that they would --
  2  ought not know where they came from, they would not know
  3  the circumstances.
  4                 I say -- and we tried to put this -- point
  5  this out in our submissions -- I say, with respect, the
  6  ramifications of -- of the suggestions that are being
  7  made to you by DCI have not been fully thought out.
  8                 And I submit it would be -- I don't like
  9  to say it's beyond your mandate, but it's -- seems to me
 10  a little bit removed from your mandate to go where the
 11  DCI would have you go in respect of these issues.
 12                 The best interests of the children, of
 13  course, that's the issue.  But if they had been adopted,
 14  then they're an adoptive family.  They have parents.
 15                 If they're adults, then there are
 16  processes that can be employed.  Dr. Smith has undertaken
 17  to -- to identify the cases that he was involved with in
 18  child protection proceedings.
 19                 So, I don't know that the recommendations,
 20  I say with respect, are ones that you should adopt in
 21  this -- in this matter.
 22                 The Province wishes to thank you,
 23  Commissioner, for your attentiveness and fairness.  And
 24  counsel -- Commission counsel for the way they dealt with
 25  this.

162
  1                 I -- I say this with respect, sir.  Your
  2  focus on the systemic issues and your focus on your
  3  mandate has -- has done you well.
  4                 Good service has done us all.  Good
  5  service in getting us here in the time frame, and I think
  6  it will serve equally in terms of guiding your
  7  recommendations.
  8                 Thank you, sir.
  9                 COMMISSIONER STEPHEN GOUDGE:   Thank you,
 10  Mr. Manuel.
 11                 Ms. Silver...?
 12  
 13                       (BRIEF PAUSE)
 14  
 15  SUBMISSIONS BY MS. CAROLYN SILVER:
 16                 MS. CAROLYN SILVER:   Good afternoon.  I
 17  had given word that I wasn't going to spend much of your
 18  time, but I understand that you have a few questions
 19  based on the submissions of the College, and I will try
 20  and address those, Commissioner.
 21                 And, hopefully, I'll have the questions
 22  right, or you can ask me any other questions.
 23                 COMMISSIONER STEPHEN GOUDGE:   I have got
 24  my little list here.
 25                 MS. CAROLYN SILVER:   Okay.

163
  1                 COMMISSIONER STEPHEN GOUDGE:   Okay.
  2                 MS. CAROLYN SILVER:   The first question
  3  that I understand from Mr. Centa is that you are looking
  4  for some clarification with respect to the threshold for
  5  reporting of the registry of forensic pathologists to the
  6  College.
  7                 And the College has made a recommendation
  8  that it supports information sharing between a reg -- the
  9  registry, or any registry that's set up in the College.
 10                 And we have said in recommendation number
 11  five (5) that it should be a condition of registration
 12  that a physician consent to information being shared
 13  between the College, and the organization maintaining the
 14  registry prior to and during registration.
 15                 COMMISSIONER STEPHEN GOUDGE:   Right.
 16                 MS. CAROLYN SILVER:   In the College's
 17  reply submissions at paragraph 2, we have also stated
 18  that we want to ensure that the College receives all
 19  information the registry obtains or generates, such as
 20  evaluations and assessments.
 21                 COMMISSIONER STEPHEN GOUDGE:    Right.
 22                 MS. CAROLYN SILVER:   So, it's
 23  clarification on that, that I assume you are looking for.
 24                 COMMISSIONER STEPHEN GOUDGE:   So it is
 25  different than a threshold that applies to hospitals now,

164
  1  or might apply with the amendment?
  2                 MS. CAROLYN SILVER:   Yes.
  3                 COMMISSIONER STEPHEN GOUDGE:   Why?
  4                 MS. CAROLYN SILVER:   Okay.  Our
  5  submission -- first and foremost, you can see from the
  6  College's submission that we want to emphasize the
  7  importance of information sharing.
  8                 And it is our --
  9                 COMMISSIONER STEPHEN GOUDGE:   As far as
 10  all institutions are concerned?
 11                 MS. CAROLYN SILVER:   All institutions.
 12                 COMMISSIONER STEPHEN GOUDGE:   Right.
 13                 MS. CAROLYN SILVER:   And it is our
 14  submission that effective regulation can only occur when
 15  there is appropriate information sharing between
 16  different entities.  And that is why we support a much
 17  lower threshold than is currently in the legislation and
 18  even the threshold that will be in force in June in
 19  Section 85.2.
 20                 And that will require facilities to report
 21  physicians incapacity and incompetence.
 22                 COMMISSIONER STEPHEN GOUDGE:   Regardless
 23  of there being a triggering event, right?
 24                 MS. CAROLYN SILVER:   Correct.  Right now
 25  there's triggering events --

165
  1                 COMMISSIONER STEPHEN GOUDGE:   Like
  2  retirement or something?
  3                 MS. CAROLYN SILVER:   Correct.  Or if
  4  privileges were suspended --
  5                 COMMISSIONER STEPHEN GOUDGE:   Right.
  6                 MS. CAROLYN SILVER:   -- or meant to be
  7  suspended --
  8                 COMMISSIONER STEPHEN GOUDGE:   Right.
  9                 MS. CAROLYN SILVER:   -- now there is a
 10  new requirement.  It used to be only --
 11                 COMMISSIONER STEPHEN GOUDGE:   So anytime
 12  the institution discovers incompetence, misconduct or
 13  negligence, that's a reportable occurrence?
 14                 MS. CAROLYN SILVER:   Correct.  I think
 15  the legislation states that it will -- if they believe --
 16  or if they have -- if there are reasonable grounds to
 17  believe that the member has sexually abused a patient or
 18  is incompetent or incapacitated.
 19                 And it is the College's recommendation
 20  that that threshold be lower, and there should be record
 21  -- reporting requirement from the registry to the College
 22  of all complaints received by the registry if that -- if
 23  it embodies a complaint system.
 24                 And all information --
 25                 COMMISSIONER STEPHEN GOUDGE:   Can I just

166
  1  back you up?
  2                 MS. CAROLYN SILVER:   Yes.
  3                 COMMISSIONER STEPHEN GOUDGE:   Because I'd
  4  sort of, in my own head, Ms. Silver, and I didn't read it
  5  carefully, I confess, thought that the amendment that'll
  6  be proclaimed, you hope, in -- or in effect in June would
  7  simply remove the triggering events, but continue the
  8  incompetence, negligence or misconduct?
  9                 MS. CAROLYN SILVER:   No, it does not --
 10                 COMMISSIONER STEPHEN GOUDGE:   It's not
 11  that?
 12                 MS. CAROLYN SILVER:   It does not remove
 13  the triggering events.  It is in addition to.  
 14                 COMMISSIONER STEPHEN GOUDGE:   Okay, so
 15  for triggering events, it still remains incompetence,
 16  negligence and misconduct.  For other occurrences, it is
 17  the threshold that you recited?
 18                 MS. CAROLYN SILVER:   The -- the tri --
 19                 COMMISSIONER STEPHEN GOUDGE:   Reasonable
 20  belief of --
 21                 MS. CAROLYN SILVER:   The -- there --
 22                 COMMISSIONER STEPHEN GOUDGE:   Is that the
 23  way it's going to work?
 24                 MS. CAROLYN SILVER:   The amendments --
 25  the -- the legislation that is in place now under the

167
  1  Public Hospitals Act and the Regulated Health Professions
  2  Act -- and that's at pages 15 and 16 --
  3                 COMMISSIONER STEPHEN GOUDGE:   Right.
  4                 MS. CAROLYN SILVER:   -- of our submission
  5  -- which says that there must be reporting when the
  6  application of the physician for appointment or
  7  reappointment --
  8                 COMMISSIONER STEPHEN GOUDGE:   Right.
  9                 MS. CAROLYN SILVER:   -- is rejected, the
 10  privileges are restricted or cancelled or there's a
 11  voluntary/involuntary -- there are a number of --
 12                 COMMISSIONER STEPHEN GOUDGE:   Right.
 13                 MS. CAROLYN SILVER:   Okay, those will
 14  maintain in force.  
 15                 COMMISSIONER STEPHEN GOUDGE:   Those
 16  continue?
 17                 MS. CAROLYN SILVER:   Correct.  What has
 18  been added is the mandatory reporting requirements.  Up
 19  till now, there had only been mandatory reporting
 20  requirements for sexual abuse.
 21                 And that requirement is that every member
 22  of the College has a mandatory obligation to report
 23  sexual abuse.  And, also, that a person who operates a
 24  facility is required to file a report of sexual abuse --
 25                 COMMISSIONER STEPHEN GOUDGE:   Okay.

168
  1                 MS. CAROLYN SILVER:   -- under section
  2  85.2.
  3                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
  4                 MS. CAROLYN SILVER:   What's now been
  5  added is that a person who operates a facility must also
  6  report incompetence or incapacity.
  7                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
  8                 MS. CAROLYN SILVER:   So that would
  9  require a facility, if they had reasonable grounds to
 10  believe there was --
 11                 COMMISSIONER STEPHEN GOUDGE:   Right.
 12                 MS. CAROLYN SILVER:   -- incompetence --
 13                 COMMISSIONER STEPHEN GOUDGE:   Right.
 14                 MS. CAROLYN SILVER:   -- and then you
 15  don't get into, were we going to restrict the privileges
 16  --
 17                 COMMISSIONER STEPHEN GOUDGE:   Exactly.
 18                 MS. CAROLYN SILVER:   -- or is the person
 19  going to resign?  And that is --
 20                 COMMISSIONER STEPHEN GOUDGE:   Just that
 21  we for a reasonable belief that?
 22                 MS. CAROLYN SILVER:   Correct.  And that
 23  we say is certainly a step in the right direction.  But
 24  the position of the College is that the threshold -- if
 25  there's a registry established, the threshold for

169
  1  reporting from that registry should be even lower.
  2                 And I have a number of reasons to support
  3  that submission.
  4                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
  5                 MS. CAROLYN SILVER:   Here are the top
  6  three (3) -- given the time limit.  The first is the
  7  concern about the -- reaching the threshold for reporting
  8  and the institution making that decision on whether the
  9  threshold is reached.
 10                 Even if that decision is made in good
 11  faith, we submit that sometimes an error is made, and
 12  there really is evidence to support incompetence, but the
 13  institution says, We don't believe there are reasonable
 14  grounds to believe that this physician is incompetent, so
 15  there's no reporting.
 16                 If that information were given to another
 17  party, they may reach a different conclusion.
 18                 COMMISSIONER STEPHEN GOUDGE:   But that
 19  applies to hospitals, too, doesn't it?
 20                 MS. CAROLYN SILVER:   Absolutely, it does.
 21                 COMMISSIONER STEPHEN GOUDGE:   I guess
 22  what I'm getting at.  Is there a public policy reason
 23  that the CPSO would advance as to why the registry ought
 24  to be treated differently than hospitals?
 25                 MS. CAROLYN SILVER:   Well, our submission

170
  1  is that this is an area where a concern -- where there
  2  has been concerns and problems with forensic
  3  pathologists.  Now what is being proposed is instituting
  4  a whole new system just to regulate forensic
  5  pathologists.
  6                 And, in our submission, we should err on
  7  the side of information sharing to ensure that we don't
  8  encounter the same problems that occurred in the past,
  9  such as -- that's why I started off saying, number 1 is
 10  making that decision.  Even in good faith there can be
 11  errors.  
 12                 And the second concern about not reporting
 13  is the con -- the problems that we've seen occurred,
 14  which is a general reluctance of institutions to report,
 15  a concern to tell the regulator when there are problems,
 16  and the instinct to try and fix things internally and not
 17  tell the regulator.
 18                 And we are concerned that there should be
 19  a second check and balance -- an objective other body --
 20  and that's the regulator -- in the case, the College --
 21  to receive that information and make its own decision.  
 22                 The second is that the College obtains
 23  information about physicians from various sources.  And
 24  what seem like a low level concern, or number of
 25  concerns, about a forensic pathologist on the registry

171
  1  may be important information if disclosed to the
  2  regulator, given other information the regulator may
  3  have.  
  4                 And we saw that happen in this case; the
  5  CPSO has certain information, the Hospital for Sick Kids
  6  had certain information, and the OCCO had certain
  7  information, and that information was not all shared.  
  8                 So that what may seem like unimportant
  9  information or low level concerns may be a small but
 10  important piece of a puzzle.  
 11                 The third reason that favours a lower
 12  threshold and broader information sharing with the
 13  College is that sharing of assessments and evaluations
 14  will not only assist in identifying concerns, but will
 15  also coincide with the movement by the College to conduct
 16  practice assessments on physicians to ensure competence.  
 17                 So, the sharing of assessments and
 18  evaluations is not to necc -- necessarily look for issues
 19  or problems, but also to receive confirmatory evidence
 20  that a physician is meeting the standard.  
 21                 Even if there is a higher threshold for
 22  reporting, such as the threshold that's now in the
 23  legislation for facilities that there must be reasonable
 24  grounds to believe there's incompetence, the College
 25  still maintains the recommendation it has made that a

172
  1  physician should be required to consent to information
  2  sharing both ways, between the College and the registry
  3  and the registry and the College.  
  4                 So that if either party has some concerns
  5  about a physician -- either the registry has concerns or
  6  the College has concerns -- that organization can obtain
  7  information from the other organization to try and fill
  8  in the blanks and get the rest of the information from
  9  the organization.  
 10                 And there won't be -- number 1, you won't
 11  have to worry about whether the information meets the
 12  requirement for incompetence because it may be some
 13  information, but together with other information, may be
 14  important.  And neither organization will have its hands
 15  tied with respect to information sharing, because a
 16  physician will have consented to the sharing of
 17  information, if requested.  
 18                 I have to point out that the College is
 19  very concerned with the submission in paragraph 48 of the
 20  OCCO's reply submissions.  And it has taken the position
 21  that it disagrees with the College's recommendation
 22  number 5 that pathologists placed on the registry consent
 23  to the information sharing.  The OCCO has said that it
 24  cannot accept this proposed recommendation, and it seems
 25  to give three (3) reasons.  

173
  1                 1.  It says that the OCCO is unaware of
  2  any such requirement imposed in other healthcare
  3  settings.  
  4                 2.  It says that there may be privacy
  5  implications, and 
  6                 3.  They say that it would no doubt have a
  7  chilling effect on those applying for inclusion on the
  8  registry.  
  9                 And, with respect, the College submits
 10  that none of these are valid reasons to reject the
 11  College's recommendation.  
 12                 First, the fact that this is not currently
 13  done in other healthcare settings is not a reason to
 14  reject it out of hand.  We submit that we should learn
 15  from the past and try and improve the system.  
 16                 Second, we say that privacy considerations
 17  should be dealt with by the physicians consenting.  
 18                 And third, and most importantly, the
 19  submission that it would no doubt have a chilling effect
 20  on those applying for -- for registration, in our
 21  submission, is pure speculation.
 22                 There really is no evidence that this will
 23  have a chilling effect and that there will be no forensic
 24  pathologist applying to be on the registry.  And whereas
 25  there is no evidence to support that, there is evidence

174
  1  that you have seen through this Inquiry of what happens
  2  when there is regulation by one (1) body that attempts to
  3  deal with issues and concerns in house, and where that
  4  can lead when there is no check and balance by another
  5  body.
  6                 And, in my submission, the suggestion by
  7  some parties that there should be reporting only when
  8  there is de-listing of a pathologist from the list; the
  9  college submits that that is too late -- that reporting. 
 10  There has to be earlier reporting, and by that time the
 11  damage may well be done.
 12                 The second question that I understood you
 13  had is who should make a determination with respect to
 14  credentialing for forensic pathologists on the registry,
 15  and whether the college proposes to make that
 16  determination or defer to other bodies.  
 17                 Do I have that question correct?
 18                 COMMISSIONER STEPHEN GOUDGE:   Yes, you
 19  refer to it in paragraph 5 of your reply submissions as a
 20  partnering between the OCCO and CPSO.
 21                 MS. CAROLYN SILVER:   Right.
 22                 COMMISSIONER STEPHEN GOUDGE:   And I just
 23  wondered what you envisage by that; whether you envisage
 24  CPSO, for example, having a veto over what was required
 25  to get onto the registry.

175
  1                 MS. CAROLYN SILVER:   We don't.  We don't
  2  envision having a veto.
  3                 COMMISSIONER STEPHEN GOUDGE:   So that is
  4  consultation really, is it?
  5                 MS. CAROLYN SILVER:   Yes.
  6                 COMMISSIONER STEPHEN GOUDGE:   Okay.
  7                 MS. CAROLYN SILVER:   It's consultation. 
  8  And we certainly would defer -- like the College defers
  9  currently to the Royal College and other bodies with
 10  expertise, we would defer to another body with expertise. 
 11  We don't propose to have a final veto over the registry -
 12  - over deciding who is allowed to --
 13                 COMMISSIONER STEPHEN GOUDGE:   Right.
 14                 MS. CAROLYN SILVER:   -- become a member
 15  of the registry.
 16                 COMMISSIONER STEPHEN GOUDGE:   Okay.  So
 17  that was my other question.
 18                 MS. CAROLYN SILVER:   Does that answer all
 19  your questions?
 20                 COMMISSIONER STEPHEN GOUDGE:   It does.
 21                 MS. CAROLYN SILVER:   Okay, on behalf of
 22  the College, I want to thank you very much for this
 23  opportunity.
 24                 COMMISSIONER STEPHEN GOUDGE:   Thanks, Ms.
 25  Silver.  

176
  1                 Mr. Carter...?
  2  
  3  SUBMISSIONS BY MR. WILLIAM CARTER:
  4                 MR. WILLIAM CARTER:   Thank you,
  5  Commissioner.  On behalf of the Hospital for Sick
  6  Children, I would like to take this opportunity to thank
  7  the Commission and Commission counsel for the high
  8  standards that have been set in the conduct of this
  9  proceeding.
 10                 This has been a learning experience for
 11  all of us, and there is no party to this Commission and
 12  no actor in the -- within the scope of the Commission's
 13  mandate who can turn their back on this opportunity to
 14  gain important knowledge based on our past conduct.
 15                 I would like to begin by just briefly
 16  responding to Ms. Silver's answers to your questions
 17  about the forensic pathologist's registry which has been
 18  mentioned by some of the parties.
 19                 As a -- as an institution, I suppose the
 20  hospital might be one (1) of those whose knowledge or
 21  information about physicians who are pathologists might
 22  be called upon to engage in some of this reporting that
 23  she suggests be implemented as a result of some
 24  recommendation you might make.
 25                 I don't see, in her answers to your

177
  1  questions, any principle basis for differ --
  2  differentiating between the conduct of forensic
  3  pathologists and the conduct of any other physicians. 
  4  And there is currently no call for across-the-board
  5  reporting of this kind of information about physicians to
  6  the College.
  7                 I would adopt the paragraph 48 submission
  8  of the College -- or excuse me, of the Coroner's Office
  9  which seems to put forward, what are, in my submission,
 10  cogent reasons for not doing this.
 11                 And I would add that I don't -- I -- I
 12  think there's a -- there's an underlying premise that has
 13  yet to be explored in Ms. Silver's submission that the
 14  reporting of information to the College is a -- a benign
 15  exercises that leads to nothing but the public good.
 16                 I think that may or may not be true, but I
 17  don't think we're in a position to make that assumption.
 18                 The mandate of the College is to regulate
 19  the profession in the public interest, like the Law
 20  Society does for the legal profession.
 21                 And while it has an important role to
 22  play, it is not the repository of all dubius data about
 23  medical practitioners, and nor should it be.
 24                 In my submission, this could lead to very
 25  significant unintended consequences, and -- such as the

178
  1  chilling effect that it might have for those engaged in
  2  this kind of practice.
  3                 I see no reason to distinguish between a
  4  forensic pathologist register, or a -- a list of doctors
  5  who might wish to work in an emergency department or any
  6  other group of physicians who decided to exercise, some
  7  collect -- in some collective way, the delivery of some
  8  aspect of health care.
  9                 Now, I would like to just turn briefly to
 10  the submissions of the hospital.  The hospital has been,
 11  as you know from the evidence, engaged in the exercise of
 12  pediatric aut -- forensic autopsies for many decades. 
 13  And for the past fifteen (15), sixteen (16) years or so,
 14  it has been the home of the Ontario Pediatric Forensic
 15  Pathology Unit.
 16                 And the focus of this Inquiry has been on
 17  that narrow segment of the Unit's work, which is in the
 18  realm of the criminally suspicious pediatric death.
 19                 I would like to remind the Commission and,
 20  through you, the public, that the -- the number -- vast
 21  number of pediatric autopsies conducted at the Hospital
 22  for Sick Children over the year -- over the years, has
 23  not given rise to the concerns before this Commission.
 24                 In fact, the evidence of this Commission
 25  has been that the overwhelming majority of the forensic

179
  1  work done at the hospital has not given rise to any
  2  issues whatsoever.
  3                 It is that small group, perhaps in the
  4  order of as much as 5 to 7 percent, where there are
  5  criminally suspicious circumstances that gives rise to
  6  the kinds of considerations that have brought about this
  7  Commission.
  8                 And so, it -- while this has been an
  9  important learning experience for the hospital, we've had
 10  an opportunity to review the shortcomings in the
 11  management and oversight arrangements that were
 12  instituted back in the early 
 13  '90s.
 14                 We've had an opportunity to hear and
 15  reflect  upon the evidence as to how these various
 16  participants have -- have been brought to grief, as it
 17  were, in -- with respect to some cases.
 18                 We are able to say that, at this juncture,
 19  the work of this Unit has been vindicated, and that there
 20  is a great deal of good and important work being done
 21  today and much of which has been informed by the
 22  experience of the last ten (10) years, and some of it
 23  just by advances in medical science.
 24                 And I would like to just briefly touch on
 25  some of the recommendations that the hospital makes in

180
  1  its written submissions.
  2                 The first, and I think it's
  3  uncontroversial, is that the hospital continue to conduct
  4  forensic autopsy for the Coroner's Office here in
  5  Toronto.
  6                 And that it continue to perform those
  7  autopsies in respect of all coroner of warrants --
  8  coroner's warrants cases and, where appropriate,
  9  criminally suspicious cases.
 10                 There has been no controversy about the
 11  non-criminally suspicious cases.  I think many of the
 12  parties recommend that the hospital continue to do that
 13  important work.
 14                 The reasons are -- among many, are that
 15  the public is entitled to expect to have first class and
 16  reliable forensic -- or excuse me, pediatric autopsies,
 17  and that goes a long way to advancing the interests of
 18  the healthcare system and addressing the important needs
 19  of families who are grieving the loss of their children.
 20                 When it comes to the criminally suspicious
 21  cases, there is room to debate where the proper situs of
 22  that activity should be.  And that decision, in my
 23  submission, should be made where the public interest in
 24  having reliable forensic autopsies can be performed
 25  should be taken into account.  And in -- in -- as -- as

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  1  things evolve, there are times when there may be more or
  2  less resources available at different institutions.
  3                 Currently, we're fortunate because at the
  4  hospital, as you've heard, we have the full panoply of
  5  resources available, including a fully qualified forensic
  6  pathologist in Dr. Chaisson, who's now been there, I
  7  think, five (5) years.  We have a part time staff member
  8  who's a fully qualified forensic pathologist in Dr.
  9  Pollanen.  And it would be my submission that the
 10  hospital continue, wherever appropriate, to conduct
 11  criminally suspicious pediatric forensic autopsies under
 12  the direction of the Chief Forensic Pathologist.  
 13                 So that if he's satisfied -- or she, as
 14  the case may be, is satisfied -- that the resources and
 15  expertise are available at the hospital, then -- and at -
 16  - at no risk to the system, then that activity occur.
 17                 If those circumstances don't exist, then,
 18  of course, it would be appropriate for the autopsy to be
 19  done elsewhere.  In fact, that's how things are done now,
 20  and, in my submission, that kind of flexibility reflects
 21  the best interests of the -- of the public.
 22                 Just moving on to the second
 23  recommendation the hospital makes is -- and this is one
 24  (1) of the significant learnings from the hospital's
 25  perspective related to the -- the evidence we've heard at

182
  1  this Inquiry.  
  2                 It would be our submission that a
  3  recommendation be made mandating that the contractual
  4  relationship between the Forensic Pathology Unit and the
  5  Office of the Chief Coroner contain certain elements that
  6  address many of the issues which have arisen in the
  7  course of this Commission.
  8                 For instance, it should be mandated that
  9  there be some form of quality assurance program
 10  instituted to ensure that the work product of the unit
 11  meets the highest possible standards.
 12                 It should be mandated that the director of
 13  the unit be a qualified forensic pathologist.  
 14                 It should be mandated that criminally
 15  suspicious cases, so identified by the Office of the
 16  Chief Coroner, be performed either by the director or his
 17  or her qualified delegate.
 18                 And the director of this unit should have
 19  clear authority delineated for operational issues which
 20  would be reported to the clinical chief, which would be
 21  the head of the Division of Pathology, and in respect of
 22  the forensic pathology issues, to the Chief Forensic
 23  Pathologist so that it's clear that there are two (2)
 24  reporting lines depending on the nature of the issue.
 25                 We would also recommend that this unit

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  1  have an executive team or committee comprised of
  2  representatives of both parties who are sufficiently
  3  senior in their respective institutions to make policy
  4  and to meet, at least annually, to review issues that are
  5  of interest to this unit.
  6                 This would result in significantly
  7  enhanced communications and might address concerns that
  8  we've heard about from Dr. Cairns, which he indicated he
  9  would like to have heard something from somebody, perhaps
 10  Dr. Becker, about some of Dr. Smith's clinical
 11  shortcomings.
 12                 It strikes me that a forum of this kind at
 13  a senior level with the -- the purpose of properly
 14  managing this unit would be an appropriate place for
 15  sensitive information of this kind to be exchanged.   
 16  The --
 17                 COMMISSIONER STEPHEN GOUDGE:   Are you
 18  going to go to your third recommendation, because I have
 19  got a couple of questions to ask you about this one.
 20                 MR. WILLIAM CARTER:   Sure.
 21                 COMMISSIONER STEPHEN GOUDGE:   Okay.  In
 22  terms of the quality assurance program you are
 23  envisaging, Mr. Carter, I take that is one (1)
 24  instituted, as you envisage it, by either the Chief
 25  Forensic Pathologist or the OCCO itself?

184
  1                 MR. WILLIAM CARTER:   Yes, yes.
  2                 COMMISSIONER STEPHEN GOUDGE:   And so it
  3  would govern the work of the pathologists in the division
  4  who were doing forensic work, not just the criminally
  5  suspicious work?
  6                 MR. WILLIAM CARTER:   Yes.
  7                 COMMISSIONER STEPHEN GOUDGE:   Okay.  And
  8  in terms of the reporting lines, what do you -- is it
  9  easy to unpack your notion of operational matters?
 10                 MR. WILLIAM CARTER:   Well, I meant --
 11                 COMMISSIONER STEPHEN GOUDGE:   What do you
 12  mean by that?
 13                 MR. WILLIAM CARTER:   Well, what I mean by
 14  that are the -- the "administrative."  We've used that
 15  term; we've talked about support, we've talked about
 16  facilities, we've talked about secretarial assistants,
 17  we've talked about -- that's the sort of thing I'm
 18  referring to, as opposed to the --
 19                 COMMISSIONER STEPHEN GOUDGE:   Well, quote
 20  a specific example.  We have heard a lot of evidence
 21  about timeliness of post-mortem reports.
 22                 MR. WILLIAM CARTER:   Yeah.
 23                 COMMISSIONER STEPHEN GOUDGE:   Is that
 24  operational or not?
 25                 MR. WILLIAM CARTER:   Yeah, I think that's

185
  1  probably both.  I think that would be a subject -- and
  2  I'm not suggesting that they're mutually exclusive.  I
  3  think they -- one could see operational aspects that go
  4  to timeliness, one could see, what I would call, issues
  5  of professionalism that go to timeliness.
  6                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
  7                 MR. WILLIAM MANUEL:   And -- and those, I
  8  think -- it would be a joint responsibility of the --
  9                 COMMISSIONER STEPHEN GOUDGE:   Somebody is
 10  going to have to make that a little more expansive than
 11  simply the term "operational" if this were to be put into
 12  place, eh?
 13                 MR. WILLIAM CARTER:   Fair enough, yeah,
 14  but this is meant to give an idea of how the
 15  accountabilities would be envisioned.
 16                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
 17                 Then the last question is one you touched
 18  on because we obviously heard a lot of information, a lot
 19  of evidence, about information that went up silos but not
 20  across between silos about deficiencies in Dr. Smith's
 21  work.  
 22                 I took from your elaboration of point F
 23  that you would envisage a sharing of information of that
 24  kind between the two (2) institutions at the executive
 25  team level.  

186
  1                 Is that your vision of this working
  2  agreement?
  3                 MR. WILLIAM CARTER:   Yeah, I would,
  4  subject to this caveat.  It's very difficult to, in the
  5  abstract, characterize a piece of information and say
  6  that's something that would necessarily be shared.  I
  7  think if -- I mean, whoever has the information on board
  8  has to make a judgment about whether or not this is
  9  appropriate information to share.  
 10                 Clearly, some information wouldn't be,
 11  it'd be considered personal, what have you.  But if there
 12  was comfort in -- if -- in sharing the information,
 13  recognizing that it was -- it was -- there was a -- there
 14  was a -- a joint and common responsibility -- and I think
 15  the problem we're addressing is, in the past, it would
 16  appear that there were silos and there was no sense of
 17  shared enterprise between the hospital and the Coroner's
 18  Office by those who had responsibility.
 19                 COMMISSIONER STEPHEN GOUDGE:   Both silos
 20  had problems with timeliness.  They did not know the
 21  other did.
 22                 MR. WILLIAM CARTER:   Right.  Or if they
 23  did, they didn't know it to --
 24                 COMMISSIONER STEPHEN GOUDGE:   That sort
 25  of information ought to be shared, should it not?

187
  1                 MR. WILLIAM CARTER:   Yes, agreed.  
  2                 COMMISSIONER STEPHEN GOUDGE:   Yes.
  3                 MR. WILLIAM CARTER:   Yeah.  
  4                 COMMISSIONER STEPHEN GOUDGE:   Okay.  And
  5  you would see the executive team as the setting for that?
  6                 MR. WILLIAM CARTER:   I would see it --
  7                 COMMISSIONER STEPHEN GOUDGE:   Some --
  8                 MR. WILLIAM CARTER:   -- it would be the
  9  default setting, if it didn't occur at a --
 10                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
 11                 MR. WILLIAM CARTER:   -- at the Director's
 12  level.  
 13                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
 14  Okay.  Thanks.
 15                 MR. WILLIAM CARTER:   Okay.  
 16                 The -- I don't want to dwell too much on
 17  the recommendation concerning funding.  I just want to
 18  remind you, Mr. Commissioner, that the -- a funding model
 19  that was constructed for this unit back in 1991 was, by
 20  everyone's acknowledgement, inadequate to address the
 21  actual costs of running the unit, which were also not
 22  poorly identified.  
 23                 And, of course, it's axiomatic that --
 24  that hasn't changed since 1991, although the value of
 25  monies diminished considerably.  

188
  1                 It would be our request to you, Mr.
  2  Commissioner, that you recommend that there be a more
  3  rational means of funding the activities of this unit.  
  4                 The proposal we make or the suggestion we
  5  make is that it be done on an identified per-unit cost
  6  and that there be some means of sharing the funding
  7  between those parties that derive the benefit from it.  
  8                 The -- I -- I think all parties, in their
  9  submissions, have -- reflect agreement that one (1) of
 10  the important take-aways from this process has been the
 11  knowledge that the status of forensic pathology in this
 12  jurisdiction, whether it be pediatric or general, is
 13  suffering.
 14                 It -- it is suffering for a number of
 15  reasons, some of which have to do with education, some of
 16  do have -- have to do with institutions.  And it would be
 17  the recommendation of the Hospital that your comor --
 18  your report address this issue and make recommendations
 19  designed to enhance interest and funding and facilities
 20  for improving the education of -- of pathologists,
 21  particularly forensic pathologists in this part of the
 22  world.
 23                 The -- the model proposed by Dr. Pollanen,
 24  which was the interdisciplinary centred presumably at the
 25  University of Toronto, has a lot of appeal to the

189
  1  Hospital because it's multi-disciplinary.  
  2                 It would enable -- because Hospital for
  3  Sick Children, among others, are affiliated teaching
  4  facilities -- it would enable students, whether they be
  5  medical or nursing or from other disciplines -- social
  6  work, et cetera -- to rotate through the pediatric unit
  7  at the Hos -- in the Division of Pathology at the
  8  Hospital for Sick Children, and would have the desirable
  9  effect of improving the education of people engaged in
 10  forensic pathology, and bring a fresh perspective to the
 11  milieu at the Hospital.
 12                 This seems like a very good suggestion of
 13  Dr. Pollanen's, and the Hospital for Sick Children
 14  embraces it.  I appreciate that it's -- it's a bit --
 15  it's in the early architectural phases, but it's a good
 16  idea.
 17                 So those are my submissions, Mr.
 18  Commissioner, on behalf of the Hospital.  Thank you.
 19                 COMMISSIONER STEPHEN GOUDGE:   Thank you
 20  very much, Mr. Carter.  
 21                 I think we've completed our roster for
 22  today.  We will then adjourn until tomorrow at 9:30 and
 23  begin with the Mullins-Johnson group and AIDWYC, Ms.
 24  Craig.
 25                 I take it that'll be Mr. Sokolov and Mr.

190
  1  Lockyer?
  2                 MS. ALISON CRAIG:   It will, yes.
  3                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
  4  We'll rise then until 9:30 tomorrow morning.
  5  
  6  --- Upon adjourning at 3:17 p.m.
  7  
  8  
  9  
 10  Certified correct
 11  
 12  
 13  
 14  
 15  _________________________
 16  Rolanda Lokey, Ms.
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