11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 March 31st, 2008 25
21 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
31 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) )
41 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
51 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
61 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 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
71 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
81 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
91 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
101 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.
111 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
121 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
131 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
141 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
151 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
161 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
171 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
181 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
191 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
201 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
211 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
221 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.
231 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
241 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
251 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
261 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
271 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
281 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,
291 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.
301 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
311 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
321 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.
331 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
341 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?
351 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
361 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,
371 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
381 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
391 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.
401 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.
411 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,
421 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
431 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,
441 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
451 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
461 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.
471 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.
481 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
491 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
501 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.
511 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 --
521 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".
531 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
541 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
551 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
561 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
571 -- 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
581 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
591 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 --
601 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
611 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
621 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
631 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.
641 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.
651 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 --
661 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.
671 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
681 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
691 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.
701 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,
711 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
721 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.
731 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?
741 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.
751 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
761 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,
771 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
781 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,
791 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.
801 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.
811 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
821 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
831 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
841 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?
851 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.
861 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.
871 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
881 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
891 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
901 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
911 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
921 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
931 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
941 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
951 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.
961 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.
971 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
981 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
991 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.
1001 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
1011 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.
1021 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
1031 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
1041 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
1051 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
1061 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,
1071 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
1081 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.
1091 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
1101 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
1111 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
1121 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,
1131 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
1141 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.
1151 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
1161 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
1171 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
1181 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
1191 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
1201 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
1211 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.
1221 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
1231 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
1241 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 --
1251 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
1261 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
1271 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
1281 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
1291 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
1301 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.
1311 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
1321 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
1331 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
1341 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
1351 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
1361 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
1371 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
1381 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
1391 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
1401 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
1411 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
1421 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
1431 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
1441 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
1451 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.
1461 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
1471 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.
1481 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
1491 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
1501 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.
1511 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
1521 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
1531 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.
1541 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
1551 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
1561 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
1571 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.
1581 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
1591 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
1601 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
1611 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.
1621 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.
1631 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,
1641 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 --
1651 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
1661 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
1671 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.
1681 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
1691 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
1701 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
1711 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
1721 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.
1731 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
1741 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.
1751 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.
1761 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
1771 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
1781 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
1791 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
1801 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
1811 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
1821 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
1831 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?
1841 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
1851 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.
1861 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?
1871 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.
1881 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
1891 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.
1901 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. 17 18 19 20 21 22 23 24 25