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 November 12th 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer ) 6 7 Luisa Ritacca ) Office of the Chief Coroner 8 Brian Gover ) for Ontario 9 Teja Rachamalla 10 11 Jane Langford ) Dr. Charles Smith 12 Niels Ortved ) 13 Erica Baron (np) 14 15 William Carter ) Hospital for Sick Children 16 Barbara Walker-Renshaw (np) ) 17 Kate Crawford ) 18 19 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 20 Association 21 22 Mara Greene ) Criminal Lawyers' 23 Breese Davies (np) ) Association 24 Joseph Di Luca (np) ) 25
31 APPEARANCES (CONT'D) 2 James Lockyer (np) ) William Mullins-Johnson, 3 Alison Craig ) Sherry Sherret-Robinson and 4 Phil Campbell ) seven unnamed persons 5 6 Peter Wardle ) Affected Families Group 7 Julie Kirkpatrick ) 8 Daniel Bernstein (np) ) 9 10 Louis Sokolov ) Association in Defence of 11 Vanora Simpson ) the Wrongly Convicted 12 13 Jackie Esmonde ) Aboriginal Legal Services 14 Kimberly Murray ) of Toronto and Nishnawbe 15 Aski-Nation 16 17 Suzan Fraser Defence for Children 18 International - Canada 19 20 William Manuel ) Ministry of the Attorney 21 Heather Mackay ) General for Ontario 22 Erin Rizok ) 23 24 Natasha Egan ) College of Physicians and 25 Carolyn Silver ) Surgeons
41 APPEARANCES (cont'd) 2 3 Michael Lomer For Marco Trotta 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS 2 Page No. 3 Opening Comments 6 4 5 MICHAEL SVEN POLLANEN, Sworn 6 BARRY MCLELLAN, Sworn 7 8 Examination-In-Chief by Ms. Linda Rothstein 32 9 10 11 12 Certificate of transcript 246 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:30 a.m. 2 3 COMMISSIONER STEPHEN GOUDGE: Good 4 morning. Today we begin hearing evidence at the public 5 hearings of this commission. It provides a useful 6 opportunity to reiterate what the Commission is about, 7 and to outline the various activities that I and 8 Commission Counsel and Staff have been undertaking in the 9 last few months. 10 As I said in my opening statement last 11 June, a Commission of Inquiry is an investigation into a 12 matter of substantial public interest to a community. It 13 has the power to summons witnesses, to compel the 14 production of documents, and to accept evidence; 15 however, it is not a civil or criminal trial. 16 Public Inquiries are an important 17 component of our Canadian democracy. They play an 18 important role in fact finding, and in educating and 19 informing concerned members of the public. They also 20 play a role in restoring public confidence in 21 governmental institutions. In the end they make 22 recommendations designed to ensure, as best we can, that 23 the concerns that give rise to the Commission are 24 addressed and avoided in the future. 25 This Commission was established by the
71 Province of Ontario on April 25, 2007. The Order in 2 Council requires the Commission to conduct a systemic 3 review of the practice of Pediatric Forensic Pathology 4 and its oversight mechanisms in Ontario, from 1981 to 5 today as they relate to the criminal justice system. 6 As Commissioner, I am to identify systemic 7 failings that may have occurred, and make recommendations 8 to restore and enhance public confidence in pediatric 9 forensic pathology in Ontario, and its future use in 10 investigation and criminal proceedings. 11 The Order in Council makes clear that the 12 Commission is fundamentally systemic in nature. I cannot 13 report on any individual cases that may have been the 14 subject of criminal proceedings; nor can I express any 15 conclusion about the professional discipline of any 16 person, or the criminal or civil liability of any person 17 or organization. 18 While I will not be reporting on 19 individual cases, it is necessary that the Commission 20 review individual cases for the purpose of determining 21 what systemic issues they raise. Central to this are the 22 cases that were the subject of the Chief Coroner's 23 review, the results of which were important in the 24 establishment of the Commission. 25 From this review I am required to identify
81 those failings of the system that occurred that must be 2 addressed if public confidence in pediatric forensic 3 pathology is to be restored. In other words, we need to 4 learn enough about the facts of what happened and why to 5 make practical and effective recommendations. 6 The Order in Council also sets a time 7 limit for the Commission that has required us to act with 8 great expedition from the beginning. It will also 9 require me to run these public hearings with great 10 efficiency. 11 I will turn to the hearing process in a 12 moment, but first let me outline all that the Commission 13 has done since it began. Commission Counsel will speak 14 to the work she, her colleagues and staff have been 15 engaged in. Let me simply publically express my enormous 16 appreciation for the skill and energy they have brought 17 to the task, and for how much has been accomplished. 18 For my part let me briefly describe my own 19 activities. As I said in my opening, one of my first 20 acts was to assemble the team of lawyers, scholars, and 21 administrators to assist me. I am being ably served. 22 Ms. Rothstein is Commission Counsel. Mr. 23 Sandler is Special Counsel Criminal Law. Mr. Centa and 24 Ms. McAleer are our Assistant Commission Counsel. 25 Professor Roach is the Commission's Research Director.
91 And Senator Larry Campbell advises on scientific and 2 medical issues. 3 Commission Counsel has put together an 4 enormously talented group to assist her. Space was 5 quickly located, technology services were put in place. 6 The hearing room was constructed. A significant 7 independent research program was set up and the work she 8 will describe was immediately started. 9 On June 18 I convened the first public 10 session of the Commission, and made an opening statement. 11 The same day, the Commission published its rules of 12 standing and funding, and invited those interested in 13 seeking standing and funding to apply in writing by July 14 16. 15 Later that week I began my private 16 meetings with individuals and families affected by 17 practices in Ontario's pediatric forensic pathology 18 system. I conducted meetings with some in June and with 19 others in August. All who met with me did so 20 voluntarily. As I have said before, this was not part of 21 the Commission's fact-finding process, nonetheless, the 22 insights I was given in those meetings will do much to 23 anchor my work in real human experiences. 24 I am very grateful to those who attended 25 and for the openness and candour they brought to our
101 conversations about very painful, personal subjects. 2 Section 16 of the Order in Council authorises me to 3 provide for counselling services to those individuals and 4 their families, and a number of them have asked that I do 5 so. 6 Through the professional assistance of Ms. 7 Celia Denov, we have determined the type of counselling 8 that would best meet their needs and have put them 9 together with qualified professionals in their 10 communities. I am very hopeful that this will help these 11 individuals and families to move forward with their lives 12 in a positive way. 13 On August 8th I heard motions for standing 14 and funding, and on August 17 I delivered my ruling. I 15 granted standing to three (3) institutions: The Office 16 of the Chief Coroner of Ontario, Her Majesty the Queen in 17 Right of Ontario, and The Hospital for Sick Children. 18 I granted standing to two (2) groups of 19 individuals: The Affected Families Group and The 20 Mullins-Johnson group who were involved in cases examined 21 by the Chief Coroner's review. 22 I also granted standing to five (5) 23 organizations involved in various ways in the criminal 24 justice system: The Ontario Crown Attorneys' 25 Association, The Association in Defence of the Wrongly
111 Convicted, The Aboriginal Legal Services of Toronto and 2 Nishnawbe Aski-Nation Coalition, and Defence for Children 3 Canada. 4 I have also granted funding on certain 5 terms to the two (2) groups of individuals and to the 6 five (5) organizations. 7 On August 31 the Commission posted its 8 rules of procedure. On October 4 I heard a motion for 9 directions brought by The College of Physicians and 10 Surgeons of Ontario. On October 10 I issued my ruling 11 and directed that the CPSO comply with the summons issued 12 by the Commission. 13 On October 12 the CPSO applied for 14 standing, and on October 17 I issued my ruling granting 15 this application. On October 24 Dr. David Ranson, the 16 Deputy Director of the Victorian Institute of Forensic 17 Medicine in Melbourne, Australia, conducted a one (1) day 18 education session for me and counsel for the parties on 19 the basics of forensic pathology. 20 The purpose of the session was to provide 21 us with a common understanding of some of the medical 22 terminology and forensic pathology concepts that will 23 underline some of the evidence we will hear during the 24 public hearings. His presentation was of great 25 assistance to me, and, I am sure, to others. I am
121 confident it will allow counsel to ask more informed and 2 focussed questions of the witnesses. 3 On October 29 and 30 at the invitation of 4 the ALST-NAN Coalition, I visited two (2) Aboriginal 5 communities in Northern Ontario, Mishkeegogamang and 6 Muskrat Dam. I am very grateful to both communities for 7 the warm hospitality they extended to me, to Mr. Sandler 8 and to Ms. Denov. 9 In both communities, I had the opportunity 10 to meet with the leaders and with individuals and 11 families who have suffered the tragedy of unexpected 12 infant deaths. As with the meetings I have held in 13 Toronto, these meetings were not part of the Commission's 14 fact-finding process but were very useful in providing me 15 with background. 16 Among other things, they brought home to 17 me the enormous challenges in Ontario of making available 18 services like pediatric forensic pathology to remote 19 northern communities in general, and in particular, to 20 Aboriginal communities. 21 On October 19 I heard two (2) motions for 22 publications bans: one (1) by Commission Counsel and one 23 (1) by Mr. Lockyer on behalf of certain individuals in 24 the Mullins-Johnson Group. 25 On November 1 I issued my ruling. It sets
131 out in detail a procedure applicable to all parties and 2 to the media that will allow the Commission to do its 3 work in a way that observes the principle of openness 4 applicable to public inquiries, and at the same time 5 protect the identities of individuals where that is 6 required. 7 As we commence this phase of our work I 8 would ask that all those bound by my ruling familiarize 9 themselves with the ruling if they have not done so 10 already. On November 5, I and counsel for all parties 11 visited two (2) institutional sites that will undoubtedly 12 be referred to in evidence. 13 First we were given a tour of the 14 Pathology Department at the Hospital for Sick Children, 15 including its autopsy facilities. Then we were given a 16 tour of the Office of the Chief Coroner of Ontario, with 17 particular attention to the Toronto Forensic Pathology 18 Unit and its autopsy facilities. 19 I am very grateful to the leadership of 20 both institutions for permitting us to do this. It 21 provides a common understanding of a very important 22 backdrop against which we will be hearing evidence. 23 Lastly let me turn to the hearings we are 24 commencing today. I emphasis again that this is a 25 systemic inquiry. The examination of individual cases is
141 important but only as it helps identify systemic failings 2 that must be addressed if public confidence in pediatric 3 forensic pathology is to be restored and enhanced. This 4 is reflected in the fact that the Commission is called 5 the Inquiry into Pediatric Forensic Pathology in Ontario. 6 From the beginning I have asked Commission 7 Counsel to look for techniques that allow us to 8 streamline the hearing process. I have a responsibility 9 to the public to be thorough and fair, while at the same 10 time being mindful of time and cost. It is important 11 that we move at a consistent and efficient pace. Since 12 this is a publically funded process, the public has the 13 right to expect that we conduct our work with economy and 14 efficiency. 15 Proceeding expeditiously is equally 16 important because recommendations to restore public 17 confidence in pediatric forensic pathology should be 18 brought forward as soon as possible given the important 19 role it plays in our criminal justice system. 20 I will be looking to all counsel to make 21 every effort to ensure that their examinations and 22 interventions add value to the Commission's mandate. I 23 urge counsel to consult among themselves to avoid 24 duplication. 25 To assist in ensuring that the
151 Commission's hearings are efficient and helpful, I will 2 provide in advance, time allocations for examination and 3 cross-examination. This will assist counsel in focussing 4 on what really matters. 5 I will use the same practice used by my 6 colleague, Associate Chief Justice O'Connor in his two 7 public inquiries; namely, that the norm will be to 8 allocate no more then the same amount of time to all 9 cross-examinations as is allocated to Commission Counsel 10 for evidence-in-chief. After taking requests for cross- 11 examination time, I will sub-divide the time amongst 12 requesting counsel according to the interests of their 13 clients in the evidence. 14 I am confident that this process will 15 assist the efficiency of the hearing process without 16 compromising its fairness. Let me conclude by saying 17 that with hard work and the continued cooperation of 18 counsel, I know this important phase of our work can be 19 accomplished in both a complete and a timely way. So let 20 us begin. 21 Ms. Rothstein...? 22 MS. LINDA ROTHSTEIN: Good morning, 23 Commissioner. As you've noted, sir, although this is the 24 first day of evidence at the Inquiry's public hearings, 25 much has gone on behind the scenes. I hope you will
161 allow me to briefly review for the public some of that 2 work. 3 We have first of all engaged in ongoing 4 consultations with all parties withstanding, and various 5 other persons having an interest in the work of the 6 Inquiry. We have been extremely gratified by the 7 cooperative spirit demonstrated by all counsel for the 8 parties, and their obvious commitment to making this 9 public inquiry as informative, probing, and streamlined 10 as possible. 11 Commission Counsel have issued summonses 12 to all persons or parties thought to be in possession of 13 potentially relevant documents. Working with counsel for 14 those that were the subject of a summons, we have 15 reviewed hundreds of thousands of pages of paper and 16 electronic documentation, with a view to identifying 17 those documents which were truly relevant to the work of 18 the Inquiry. 19 To the extent possible, we have 20 endeavoured to collect documents of importance. To date, 21 we have collected and scanned more then one hundred and 22 thirty-five thousand (135,000) pages of documents for the 23 database. 24 Our database has been made accessible 25 electronically to all parties with standing, subject to
171 strict and rigorous confidentiality protocols. Our 2 investigation is ongoing; inevitably, new documentation 3 that is relevant to our work will become available as we 4 proceed, but we remain hopeful that the number of new 5 documents that will be added to our database will 6 gradually diminish. 7 A word about privacy issues, if I may. 8 Not surprisingly, documents relating to the mandate of 9 this Inquiry raise many serious privacy or 10 confidentiality issues. You've touched on that. The 11 Inquiry is examining pediatric forensic pathology in its 12 interface with, for example, child protection agencies, 13 young persons as defendants, families, police, Crown 14 counsel and defence counsel. 15 The privacy issues that arise in these 16 contexts are addressed through statutory prohibitions, 17 discretionary and mandatory Court orders, and have also 18 been addressed through your recent ruling. 19 Following your ruling on November the 1st 20 we distributed to counsel a list of individuals whose 21 identities were the subject of your Order, together with 22 a list of pseudonyms by which the Commission proposes 23 that they be referred to in our public hearings. 24 All media reporters in the Inquiry have 25 also been asked to familiarise themselves with the terms
181 of your non-publication orders. Where necessary, web 2 casting of the hearings may be adjusted to permit 3 inadvertent violations of your non-publication order to 4 be addressed. 5 Documents which become part of the record 6 in these hearings will only be released to members of the 7 public after they have been redacted, as necessary, to 8 comply with your Order and applicable schedules. This 9 may take some time, and we appreciate the patience and 10 understanding of those who make requests of the limited 11 time and resources available to address those requests. 12 Witnesses. To date, Commission Counsel 13 and staff lawyers have interviewed a total of forty-eight 14 (48) witnesses and have documented their interviews in 15 detailed interview summaries. Many of those summaries 16 have been provided to counsel. Some are still in the 17 process of being reviewed by those we have interviewed to 18 ensure their accuracy. They will be distributed to 19 counsel as soon as possible. 20 Although these interview summaries will 21 not be used for cross-examination, we are hopeful that 22 they will assist all counsel in preparing their 23 examinations and in identifying the issues of importance 24 to your work. 25 Not all of the witnesses we have
191 interviewed will ultimately testify during our public 2 hearings; in some cases we have determined that their 3 evidence does not address key issues, in other cases 4 their evidence duplicates the evidence of others who will 5 be called to testify. 6 In addition, we are hopeful that we can 7 obtain agreement to present important aspects of the 8 evidence in written form, such that they will not be 9 required for either examination or cross-examination. 10 Again, our objective is to present the evidence you need 11 to make effective recommendations in as streamlined a 12 fashion as possible. 13 As you've explained, Commissioner, the 14 Chief Coroner's review was central to the creation of 15 this Inquiry; it was conducted by two (2) Ontario experts 16 and five (5) internationally-recognised forensic 17 pathologists. They examined forty-five (45) cases of 18 suspicious child deaths where Dr. Charles Smith performed 19 the autopsy or was consulted. In twenty (20) of those 20 cases they found that some of his conclusions were not 21 reasonably supported by the materials available. 22 All five (5) of the external reviewers 23 will be called to testify in order for us to fully 24 understand and test their conclusions. In eighteen (18) 25 of the twenty (20) cases in which Dr. Smith's conclusions
201 were criticised, Commission Counsel, together with our 2 wonderful team of staff lawyers, have prepared something 3 referred to in your terms of reference as overview 4 reports. 5 These summarise the relevant documents in 6 our databa -- database and set out the background and 7 core facts together with their sources. In advance of 8 finalising these reports we provided an opportunity to 9 the parties to comment on their accuracy and to suggest 10 modifications. 11 We are hopeful that the overview reports 12 which will be presented this week will be useful in 13 assisting you and identifying the systemic issues that 14 are relevant to this Inquiry in making findings of fact 15 on the undisputed terrain and enabling you to make 16 recommendations to restore confidence in paediatric 17 forensic pathology in Ontario. 18 It is, however, important to note that the 19 overview reports contain a significant amount of 20 information that has not been tested for its truth. 21 These reports recount the perceptions, information, and 22 views of many people. These accounts may or may not be 23 based on accurate facts. 24 In some cases, the overview reports detail 25 spurious allegations, which were later proven false. In
211 other cases they contain allegations which have not yet 2 been proven one way or the other, or which have not yet 3 been proven one way or the other, or which are incapable 4 of proof. In places, the overview reports set out the 5 views individuals held at a particular time. These views 6 may not accord with the views those same individuals hold 7 today. 8 Commission Counsel believe however, that 9 it is important that the overview reports contain all of 10 this information, because the fact that such views were 11 held or that such allegations were expressed at the time 12 may provide insight into the actions or omissions that 13 ultimately occurred. 14 The full record must be placed before you, 15 Commissioner, so that you may fully appreciate the 16 context in which these cases occurred. We are hopeful 17 that reliance on the overview reports will considerably 18 expedite these proceedings and will dramatically reduce 19 the number of witnesses that we would otherwise need to 20 call, and documents we would need to prove to establish 21 the factual foundation for your work. 22 They will also help to make clear the 23 complex factual matrix at the heart of any death 24 investigation and the importance of looking beyond the 25 autopsy procedures and the work of any individual
221 pathologist to appreciate the full nuanced context. 2 Ultimately it will be for you, 3 Commissioner, to decide how much or how little weight is 4 placed on the information contained within these reports 5 when you make your recommendations. 6 In two (2) of the twenty (20) cases 7 identified by the Chief Coroner's review, we have not 8 prepared overview reports. One of those cases, the 9 Trotta case, was the subject of an appeal to the Supreme 10 Court of Canada in the early fall, and the Supreme Court 11 decision was released just last Thursday. It has ordered 12 a new trial. 13 In these circumstances we are of the view 14 it would be preferable to focus on features of that case 15 as opposed to all of its detailed facts. 16 In the last case, which I am not able to 17 identify by name at this stage, there is an ongoing 18 police investigation. For that reason we are persuaded 19 that it would not assist the work of the Inquiry to 20 present an overview report, or engage in a detailed 21 review of all of the facts of that case; at least not at 22 this juncture. 23 A few words about Dr. Charles Smith. It 24 is true that the Coroner's Review was created to examine 25 his work, and that the twenty (20) cases in which the
231 review panel identified concerns will be the subject of 2 considerable evidence as this inquiry proceeds. 3 But as with others, our job is to 4 critically scrutinize Dr. Smith's work, but not to 5 demonize him; moreover, we can not allow undue emphasis 6 on his role to distract us from our systemic focus. 7 As will become clear from the overview 8 reports, in a number of the cases we will examine, Dr. 9 Smith's opinions were supported by others engaged in the 10 complex and difficult task of pediatric death 11 investigation. 12 Our research. Our Research Director, 13 Professor Kent Roach, has assembled many internationally 14 renowned experts and scholars to write about many of the 15 systemic issues from an academic perspective. These 16 papers will demonstrate that establishing best practices 17 in forensic pathology and pediatric forensic pathology is 18 an issue of concern throughout the world. 19 Three (3) of these papers have been posted 20 on our website this morning. Commissioner, you have 21 asked me to emphasize that the views expressed in these 22 papers do not necessarily represent your views or the 23 views of your counsel, but are the product of independent 24 scholarly work. The issues they raise and the 25 recommendations they propose will be tested in expert
241 round tables in February and the party's written 2 submissions. 3 As you have emph -- as you have 4 emphasized, our task is to conduct a systemic examination 5 of the practice of pediatric forensic pathology and its 6 oversight mechanisms as they relate to the criminal 7 justice system in Ontario. 8 While the list of systemic issues can not 9 be finalized until after public hearings are completed, 10 the Commission has compiled a list of issues that 11 deserves consideration during the public hearings. They 12 can be usefully grouped into four (4) areas of concerns, 13 recognizing that they are not water tight and that the 14 issues do not necessarily relate to only one (1) area. 15 The first group is those issues that are 16 most relevant to insuring that the highest quality of 17 pediatric forensic pathology is available to the criminal 18 justice system. 19 The second group comprises those issues 20 that involve how that pathology is effectively 21 communicated to the criminal justice system. 22 The third group involves issues concerning 23 the roles that can best be played by the main actors who 24 interact with pediatric forensic pathology. These 25 include the Coroner, the hospital, or other institution
251 in which the pathology may be done; the police, the 2 Crown, the Defence, the child protection agencies and the 3 families. 4 The broad challenges to determine how 5 these actors can best assist in ensuring that sound 6 paediatric forensic pathology is supplied to the criminal 7 justice system and how these actors best interface with 8 paediatric forensic pathology to ensure that justice is 9 done. 10 The fourth group concerns those issues 11 that arise after the fact of any inadequate paediatric 12 forensic pathology. The broad challenge is to determine 13 the best corrective measures that ought to be available 14 in these circumstances. 15 Our investigation to date raises issues 16 about systemic failings in all of these areas, in the 17 paediatric forensic pathology available to the criminal 18 justice system, in the communication of it to that 19 system, in the roles played by the other main actors and 20 in the corrective measures available after the fact. Our 21 list of eighty (80) systemic issues has been distributed 22 to the parties for their comments and has been posted on 23 our website this morning. 24 Public Inquiries. As you well know, 25 Commissioner, Canadian Public Inquiries have played an
261 important role in the delivery of justice broadly 2 defined. There is a spectum -- spectrum of approaches to 3 a public inquiry; at one end there are those that more 4 closely resemble the fact-finding processes more often 5 seen in a trial. Witnesses are called to establish every 6 detail, documents are formally entered as exhibits, and 7 policy issues are largely secondary. 8 They are prime -- primarily designed to 9 determine what happened and what ought to be done about 10 it in a very specific context. At the other end of the 11 spectrum are policy-centred inquiries, many of which are 12 carried out largely outside of a public hearing process. 13 Facts are determined by investigators or the Commissioner 14 without viva voce evidence; much of the debate is 15 developed in policy papers, not in an examination or 16 cross-examination. 17 The job of your four (4) Commission 18 Counsel is to chart a course that borrows from each of 19 these approaches and also uses some innovative ones. For 20 example, our first two and one half (2 1/2) days evidence 21 will allow you to hear in tandem, if not, actually 22 simultaneously I hope, from the former Chief Coroner of 23 Ontario, Dr. Barry McLellan and Ontario's Chief 24 Pathologist, Dr. Michael Pollanen. 25 Together they will describe the statutory
271 regime which frames the work of coroners and pathologists 2 engaged in death investigations, and specifically, 3 pediatricly criminal suspicious and homicide cases. 4 Together they will address their 5 respective roles in the establishment and design of the 6 Chief Coroner's review, which in turn led to the 7 establishment of this Inquiry. 8 By calling their evidence in tandem, we 9 hope to develop the broad themes efficiently and allow 10 for any differences of opinion or perspective to be 11 fairly aired. 12 We are also shortening the time required 13 for their testimony and allowing them to return to their 14 demanding jobs by the end of this week by supplementing 15 their oral evidence with a written report. 16 The institutional report prepared by the 17 Office of the Chief Coroner sets out in considerable 18 detail the legal and practical framework for Ontario 19 death investigations. It reviews the work of the 20 Coroner's Office and those who work for it. Although the 21 contents of this report cannot be treated as agreed 22 evidence and the parties may choose to cross-examine Drs. 23 McLellan and Pollanen on the report, it will avoid the 24 painstakingly detailed questions and answers that would 25 otherwise be a feature of their days in the witness box.
281 We plan to call many of our witnesses in 2 panels. Whether a witness testifies alone or as part of 3 a panel of two (2) or more, our goal as Commission 4 Counsel will be to identify the systemic issues, probe 5 and distill the significant facts, and streamline the 6 evidence. As Justice O'Connor has explained, our role as 7 Commission Counsel is to be thorough and evenhanded. 8 Commissioner, because we will be calling a 9 good deal of evidence about Dr. Smith's work and because 10 he is not scheduled to give evidence until late January, 11 Mr. Ortved has asked to make a very brief statement. 12 COMMISSIONER STEPHEN GOUDGE: It seems 13 fair. 14 Mr. Ortved...? 15 MR. NIELS ORTVED: Thank you. So, Mr. 16 Commissioner, as this Inquiry commences and before any 17 testimony is heard, Dr. Smith wishes to publicly 18 acknowledge to the Commission that in the twenty (20) 19 years that he performed autopsies at the direction of the 20 Office of the Chief Coroner of Ontario, he made a number 21 of mistakes for which he is truly sorry. 22 Dr. Smith sincerely regrets these mistakes 23 and apologizes to all who may have been affected by his 24 errors. Dr. Smith wishes to emphasize that any such 25 mistakes were made honestly and without any intention to
291 harm or obstruct the pediatric death investigations in 2 which he was involved. 3 At all times, Dr. Smith endeavoured to use 4 whatever knowledge and expertise he possessed to render 5 accurate pathologic opinions. In retrospect, he 6 understands that in some of the twenty (20) cases which 7 form the basis of this Inquiry, his work, while to the 8 best of his ability at the time, was simply not good 9 enough in certain instances. 10 Contrary to what has been widely reported, 11 during the time that Dr. Smith performed autopsies at the 12 request of the Coroner's Office -- which numbered more 13 than a thousand (1,000) -- Dr. Smith concluded that the 14 death was criminally suspicious in only a small minority 15 of cases; in fact, less that 10 percent. 16 Many of these cases were acknowledged to 17 be the most difficult pediatric death investigations. In 18 the vast majority of cases, Dr. Smith concluded that the 19 cause of death was accidental, natural or not otherwise 20 suspicious. When the case -- whether the case was 21 criminally suspicious or not, Dr. Smith endeavoured to 22 approach each case in the same objective manner. 23 Dr. Smith also wishes to emphasize that 24 his conclusions and testimony represented his opinion as 25 to the cause and mechanism of death. It's important to
301 bear in mind that the practice of pathology, forensic 2 pathology and, specifically, pediatric forensic pathology 3 is, in each case, an inexact science. Furthermore, they 4 are interpretive sciences where opinions will frequently 5 differ. 6 Moreover, the science of pediatric 7 forensic pathology is constantly evolving. 8 Unquestionably, what may have represented a consensus of 9 professional opinion in the 1980s and the 1990s may very 10 well be viewed differently in 2007. 11 Dr. Smith's experience points to an 12 obvious problem with death investigations. 13 Legislatively, it is the coroner who is responsible for 14 conducting the death investigation and reaching a 15 conclusion as to the manner of death. 16 There are literally hundreds of coroners 17 presently in the Province of Ontario. It is not to be 18 critical, but a simple statement of fact that the 19 respective experience and expertise of these coroners 20 varies widely, particularly in relation to criminally 21 suspicious deaths. 22 Thus, in practice, it is frequently not 23 the coroner but the pathologist from whom an opinion on 24 manner of death is sought by the police and later by the 25 Crown. This creates difficulties. There may be an
311 informational disconnect. The coroner may have 2 information concerning the investigation which may very 3 likely not be communicated to the pathologist. And, 4 similarly, the pathologist may arrive at findings which 5 are not adequately integrated by the coroner. 6 To further complicate matters, if the case 7 becomes a criminal investigation and prosecution, the 8 coroner is effectively replaced by the Crown and the 9 police. Should a matter proceed to court, it will 10 invariably be the pathologist that is called as a 11 witness, not the coroner. Yet often the Crown has had 12 little or no involvement with the investigation. 13 If we wish to ensure that the conclusions 14 concerning death investigations are as accurate as 15 possible and the Court is obtaining the optimal opinion 16 evidence, the various arms of an investigation, the 17 police, the coroner, the pathologist, and the Crown 18 prosecutor must be integrated in a more coordinated 19 fashion. 20 In closing, Dr. Smith wishes to make clear 21 that he acknowledges the important systemic objective of 22 this Inquiry. To date, Dr. Smith has refrained from 23 commenting publicly on the individual cases or the 24 systemic issues that will be considered by this 25 Commission in a desire not to attempt to influence or
321 distract the work of the Inquiry. However, he has and 2 intends to continue to provide the Commission with his 3 assistance in the attainment of its important mandate. 4 Thank you. 5 COMMISSIONER STEPHEN GOUDGE: Thank you, 6 Mr. Ortved. We have much evidence to hear. We have 7 evidence to hear from Commission Counsel and evidence 8 from your client, and in due course, I very much look 9 forward to the full policy submissions from all of you. 10 Ms. Rothstein...? 11 MS. LINDA ROTHSTEIN: Dr. Pollanen and 12 Dr. McLellan, please, our first witnesses. 13 14 MICHAEL SVEN POLLANEN, Sworn 15 BARRY MCLELLAN, Sworn 16 17 EXAMINATION-IN-CHIEF BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: Good morning, Dr. 19 McLellan, Dr. Pollanen, you should have a number of 20 documents in front of you, including the two (2) volumes 21 of -- the two (2) volumes of documents that counsel have 22 identified as being documents they would like you to 23 consider in your evidence. 24 You should also have with you a binder 25 entitled "OCCO Institutional Report", at least one (1)
331 copy there. 2 You have that, Dr. McLellan? 3 DR. BARRY MCLELLAN: I do, thank you. 4 MS. LINDA ROTHSTEIN: All right. And 5 just -- just as a starting point, you heard me mention it 6 in my opening remarks, this document was prepared by the 7 Office of the Chief Coroner of Ontario by many hands, I 8 gather, including your counsel? 9 DR. BARRY MCLELLAN: That's correct, 10 yeah. 11 DR. MICHAEL POLLANEN: That's correct, 12 yeah. 13 MS. LINDA ROTHSTEIN: Okay. And, Dr. 14 McLellan, I take it that we can treat it as evidence that 15 you adopt for the purpose of this Inquiry, is that fair? 16 DR. BARRY MCLELLAN: That's correct. 17 MS. LINDA ROTHSTEIN: And you, as well, 18 Dr. Pollanen? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. LINDA ROTHSTEIN: I will try not to 21 ask you questions where you have to answer simultaneously 22 as we progress. There's one other binder that you should 23 have, which is called "The Coroner's Investigation 24 Manual"; of course you'll both be familiar with that. 25 All of these documents are in our
341 database, but we have a separate binder, which I hope you 2 have, as well. 3 DR. BARRY MCLELLAN: Yes, we have that, 4 thank you. 5 MS. LINDA ROTHSTEIN: All right. Well, 6 allow me then to briefly introduce both of you to our 7 Inquiry. I -- I expect that most of the counsel in the 8 room are well familiar with your backgrounds, but the 9 Commissioner is not. Let me begin with you, if I may, 10 Dr. McLellan. 11 Until very recently you were, in fact, the 12 Chief Coroner of Ontario? 13 DR. BARRY MCLELLAN: That's correct. 14 MS. LINDA ROTHSTEIN: Until September 15 17th of this year? 16 DR. BARRY MCLELLAN: Correct. 17 MS. LINDA ROTHSTEIN: And you then left, 18 much to the regret of many of your colleagues, to assume 19 a new position as the Chief Executive Officer of 20 Sunnybrook Health Science Centre. 21 Is that correct? 22 DR. BARRY MCLELLAN: Yes. 23 MS. LINDA ROTHSTEIN: Thank you very much 24 for making the time for us this week. You became the 25 Chief Coroner of Ontario on May -- in May 2004.
351 Is that correct? 2 DR. BARRY MCLELLAN: In fact, late April 3 2004, yes. 4 MS. LINDA ROTHSTEIN: All right. And 5 prior to that, you were actually designated the Acting 6 Chief Coroner for a period of time, if I have that 7 correctly? 8 DR. BARRY MCLELLAN: Yes. 9 MS. LINDA ROTHSTEIN: Indeed, you were 10 the Acting Chief Coroner between July 2002 and May 2004. 11 Is that correct, Dr. McLellan? 12 DR. BARRY MCLELLAN: Correct; until the 13 end of April of 2004. 14 MS. LINDA ROTHSTEIN: Obviously, you are 15 a physician and surgeon licenced to practice in this 16 Province. 17 DR. BARRY MCLELLAN: I am a physician, 18 correct. 19 MS. LINDA ROTHSTEIN: And the licencing 20 body is the College of Physicians and Surgeons of 21 Ontario. 22 DR. BARRY MCLELLAN: Correct. 23 MS. LINDA ROTHSTEIN: You were licenced 24 in 1986, if I read your CV correctly. 25 DR. BARRY MCLELLAN: Would have been
361 licensed in 1985. 2 MS. LINDA ROTHSTEIN: Okay. I say the 3 College of Physicians and Surgeons of Ontario to 4 distinguish it from a body known as the Royal College of 5 Physicians and Surgeons of Canada. 6 Am I correct, Dr. McLellan, that that is 7 the body from which physicians in this Province obtain 8 specialty certification in a wide range of specialties? 9 DR. BARRY MCLELLAN: Correct. 10 MS. LINDA ROTHSTEIN: And you, sir, have 11 specialty certification in emergency medicine and, as 12 such, hold a fellowship with the Royal College? 13 DR. BARRY MCLELLAN: Yes. 14 MS. LINDA ROTHSTEIN: Look at your 15 education, if we may. Still on page 1, I understand that 16 you obtained your medical degree from the University of 17 Toronto, Faculty of Medicine, in 1981. 18 DR. BARRY MCLELLAN: Yes. 19 MS. LINDA ROTHSTEIN: Began your 20 specialty training that year at St. Michael's Hospital -- 21 DR. BARRY MCLELLAN: Yes. 22 MS. LINDA ROTHSTEIN: -- as an intern 23 and, thereafter, as a resident in emergency medicine? 24 DR. BARRY MCLELLAN: Correct. 25 MS. LINDA ROTHSTEIN: Can you tell the
371 Commissioner a little bit about the discipline of 2 emergency medicine and what it comprises? 3 DR. BARRY MCLELLAN: At that time, 4 emergency medicine was recognized as a new specialty. 5 Most emergency physicians will tailor their practice to 6 the Emergency Department, but some of the skills are 7 transferable to other parts of the hospital. And it 8 includes the spectrum from pre-hospital care right 9 through to some specialized areas such as trauma care. 10 MS. LINDA ROTHSTEIN: Dr. McLellan, am I 11 correct that your first appointment as a staff physician 12 was in 1985 at the Sunnybrook Health Sciences Centre? 13 DR. BARRY MCLELLAN: Correct. 14 MS. LINDA ROTHSTEIN: And you continued 15 there, in a variety of positions, until 1998? 16 DR. BARRY MCLELLAN: Correct. 17 MS. LINDA ROTHSTEIN: And I take it that 18 Sunnybrook was -- well, I suppose it's no surprise then 19 that Sunnybrook was anxious to have you back in the 20 position of CEO at the hospital. That's where you 21 started your career. 22 DR. BARRY MCLELLAN: That's correct. 23 MS. LINDA ROTHSTEIN: You've also held a 24 series of university appointments as instructor, research 25 coordinator, lecturer, assistant professor and associate
381 professor at the University of Toronto? 2 DR. BARRY MCLELLAN: Correct. 3 MS. LINDA ROTHSTEIN: And in all of that 4 work, you have had an ongoing interest in emergency and 5 trauma care? 6 DR. BARRY MCLELLAN: Correct. 7 MS. LINDA ROTHSTEIN: So tell us then, if 8 you would, how did you first become interested in the 9 work of the coroner system? 10 DR. BARRY MCLELLAN: My primary clinical 11 work was in trauma resuscitation and spending a great 12 deal of time resuscitating victims, I became more and 13 more interested in prevention. A major component of the 14 coroner system is learning from deaths in order to 15 advance public safety. 16 So I became interested in coroner's work 17 through the early 1990s and was originally appointed as a 18 investigating coroner in 1993. 19 MS. LINDA ROTHSTEIN: And you moved 20 quickly through the coroner system becoming the Regional 21 Coroner for Northeastern Ontario in December of 1998? 22 DR. BARRY MCLELLAN: Correct. 23 MS. LINDA ROTHSTEIN: And just tell us 24 quickly, if you will, Dr. McLellan, what area that 25 comprises.
391 DR. BARRY MCLELLAN: It stretched from 2 Muskoka in the south, up as far north as Kashechewan. It 3 stretched from the western border toward Sault Ste. Marie 4 to the east of Algonquin Park. 5 MS. LINDA ROTHSTEIN: Your office was in 6 Bracebridge? 7 DR. BARRY MCLELLAN: Correct. 8 MS. LINDA ROTHSTEIN: But you somehow 9 managed to continue to reside in Toronto, if I understand 10 it correctly? 11 DR. BARRY MCLELLAN: Just north of the 12 city, correct. 13 MS. LINDA ROTHSTEIN: Okay. And at the 14 time that you became a coroner, and indeed at the time of 15 your promotion to Regional Coroner for north east 16 Ontario, am I correct that Dr. Young was the Chief 17 Coroner of Ontario? 18 DR. BARRY MCLELLAN: Yes. 19 MS. LINDA ROTHSTEIN: Dr. James Cairns 20 was the Deputy Chief Coroner for investigations? 21 DR. BARRY MCLELLAN: Correct. 22 MS. LINDA ROTHSTEIN: And Dr. Bonita 23 Porter was the Deputy Chief Coroner for inquests? 24 DR. BARRY MCLELLAN: Yes. 25 MS. LINDA ROTHSTEIN: Okay. You held the
401 position of Regional Coroner for north eastern Ontario, 2 page 5 of that document, Mr. Registrar -- until December 3 2000? 4 DR. BARRY MCLELLAN: Correct. 5 MS. LINDA ROTHSTEIN: At which point you 6 became the Regional Supervising Coroner for the greater 7 Toronto area east? 8 DR. BARRY MCLELLAN: Correct. 9 MS. LINDA ROTHSTEIN: Toronto's divided 10 in two (2)? 11 DR. BARRY MCLELLAN: It currently is 12 divided into two (2) and it's just the city of Toronto. 13 At that time greater Toronto area east included Durham 14 and York Region. 15 MS. LINDA ROTHSTEIN: Your office was 16 physically at the office of the Chief Coroner of Ontario 17 at 20 Grenville? 18 DR. BARRY MCLELLAN: 26 Grenville, yes. 19 MS. LINDA ROTHSTEIN: 26. Now in -- on 20 June 30th, 2001, you became the Deputy Chief Coroner 21 Forensic Services? 22 DR. BARRY MCLELLAN: Yes. 23 MS. LINDA ROTHSTEIN: Was that a new 24 position for the OCCO, Dr. McLellan? 25 DR. BARRY MCLELLAN: It was. Up until
411 that point in time, Dr. Chaisson was both the Chief 2 Forensic Pathologist and the Deputy Chief Coroner of 3 Forensic Pathology. 4 When Dr. Chaisson resigned, a new position 5 was created, the Deputy Chief Coroner of Forensic 6 Services, and I was the first to occupy that position. 7 MS. LINDA ROTHSTEIN: And in that 8 position, Dr. McLellan, did you have some responsibility 9 for the pathology services that came under the Office of 10 the Chief Coroner of Ontario? 11 DR. BARRY MCLELLAN: I did. I was 12 responsible for the administrative functions related to 13 the forensic services which included setting policy, 14 arranging for educational courses, other administrative 15 matters. 16 MS. LINDA ROTHSTEIN: And so you held 17 that position as we've discussed, until May of '04, when 18 you became the acting Chief Coroner, is that right? 19 DR. BARRY MCLELLAN: I became the Chief 20 Coroner in late April of 2004 -- 21 MS. LINDA ROTHSTEIN: Right. 22 DR. BARRY MCLELLAN: -- and up until that 23 point I had the position of acting Chief Coroner as well 24 as Deputy Chief Coroner of Forensic Services. 25 MS. LINDA ROTHSTEIN: And at the time
421 that you became the acting coroner, was Dr. Young still 2 the Chief Coroner? 3 DR. BARRY MCLELLAN: Yes. 4 MS. LINDA ROTHSTEIN: Help us with that 5 please? 6 DR. BARRY MCLELLAN: Dr. Young had 7 additional responsibilities at that time, predom -- 8 predominately related to emergency management. He wished 9 to stay on as Chief Coroner and I was appointed as acting 10 Chief Coroner and responsible for the day-to-day 11 operations of the office. 12 MS. LINDA ROTHSTEIN: And distinguish 13 that from the responsibilities that Dr. Young continued 14 to hold? 15 DR. BARRY MCLELLAN: Well, Dr. Young 16 continued to retain the OIC appointment of Chief Coroner 17 and was, therefore, responsible for the overall oversight 18 of the office. 19 MS. LINDA ROTHSTEIN: Okay. We'll come 20 back to that in greater detail. If I could just turn to 21 you, Dr. Pollanen, and briefly sketch out some of your 22 background. Mr. Registrar, may we see 057403, and 23 Commissioner, you'll find this at Tab 2 of the document 24 brief. 25 COMMISSIONER STEPHEN GOUDGE: Thank you.
431 2 CONTINUED EXAMINATION BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: Dr. Pollanen, you 4 are currently the Chief Forensic Pathologist for the 5 Province of Ontario? 6 DR. MICHAEL POLLANEN: Yes. 7 MS. LINDA ROTHSTEIN: And you are also an 8 Associate Professor of Pathology in the department of 9 Laboratory Medicine and Patho-biology in the Faculty of 10 Medicine at the University of Toronto? 11 DR. MICHAEL POLLANEN: Correct. 12 MS. LINDA ROTHSTEIN: You are a 13 consulting forensic pathologist for the Department of 14 Pediatric Laboratory Medicine at the Hospital for Sick 15 Children in Toronto? 16 DR. MICHAEL POLLANEN: Yes. 17 MS. LINDA ROTHSTEIN: And a consulting 18 forensic pathologist in many jurisdictions outside of 19 Ontario, and indeed Canada? 20 DR. MICHAEL POLLANEN: Occasionally, yes. 21 MS. LINDA ROTHSTEIN: Can you briefly 22 describe for us what your primary duties are as the Chief 23 Pathologist of Ontario? 24 DR. MICHAEL POLLANEN: Well, the Chief 25 Forensic Pathologist for Ontario essentially has as its
441 oversight -- or overall role to provide an environment 2 that fosters excellence in forensic pathology. 3 And that essentially is divided into -- 4 into four (4) areas in -- in the daily work of the 5 forensic pathologist; those relate to service 6 commitments, administrative duties, educational duties, 7 as well as, in -- in my case as I am cross appointed at 8 the University, a research portfolio, which doesn't 9 formally come under my -- my job as the Chief Forensic 10 Pathologist, but is related to my University duties. 11 MS. LINDA ROTHSTEIN: We'll spend a 12 little bit of time on your education because it will 13 actually be relevant to the work of this Inquiry to 14 understand how someone obtains the correct education for 15 the job you've fulfilled, Dr. Pollanen. 16 You began your post-secondary education at 17 the University of Guelph where you received a Bachelor of 18 Science; that was 1992? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. LINDA ROTHSTEIN: Can we have page 2 21 of that document, please, Mr. Registrar? You then 22 complete a PhD in pathology and neuropathology in just 23 three (3) years, 1995, as I calculated, from the 24 University of Toronto? 25 DR. MICHAEL POLLANEN: Yes.
451 MS. LINDA ROTHSTEIN: And it was only 2 after that that you went to medical school obtaining your 3 MD in 1999? 4 DR. MICHAEL POLLANEN: Correct. 5 MS. LINDA ROTHSTEIN: Okay. You hold a 6 specialty certification in anatomical pathology as a 7 fellow of the Royal College of Physicians and Surgeons in 8 Canada? 9 DR. MICHAEL POLLANEN: Yes. 10 MS. LINDA ROTHSTEIN: Stopping there, Dr. 11 Pollanen, that fellowship from the Royal College is in 12 pathology, but not in forensic pathology or forensic 13 medicine; that's an important distinction, is it not? 14 DR. MICHAEL POLLANEN: Correct. The -- 15 the Royal College recognises different branches of 16 pathology and gives certification in those areas; the -- 17 the two (2) primary branches are anatomical pathology and 18 general pathology, and those form the basic 19 certifications through the Royal College. 20 Recently that's changed and the Royal 21 College has now identified forensic pathology as a sub 22 specialty after certification in either anatomical or 23 general pathology. 24 MS. LINDA ROTHSTEIN: But just so we're 25 absolutely clear, although the Royal College, and we'll
461 hear a lot of evidence about this, Commissioner, has now 2 created the platform upon which someone can get a 3 fellowship in forensic pathology. 4 There is no one to date in Canada who has 5 obtained one from the Royal College, is that correct? 6 DR. MICHAEL POLLANEN: Correct. 7 MS. LINDA ROTHSTEIN: And so you, as I 8 understand it, Dr. Pollanen, had to qualify in forensic 9 pathology by going outside of Canada. 10 DR. MICHAEL POLLANEN: Yes. 11 MS. LINDA ROTHSTEIN: And where did you 12 go? 13 DR. MICHAEL POLLANEN: Well, the 14 certification that I have, or the examination that I have 15 in forensic pathology, comes from the Society of 16 Apothecaries in the United Kingdom, which is the -- the 17 standard forensic path qualification for essentially the 18 commonwealth countries; it's called the Diploma in 19 Medical Jurisprudence in Pathology, the DMJ path, and 20 that qualification has been around since the '60s, and 21 most forensic pathologists in Commonwealth countries 22 write that examination. 23 MS. LINDA ROTHSTEIN: And how long does 24 it take to prepare one's self for that examination, Dr. 25 Pollanen?
471 DR. MICHAEL POLLANEN: Well, it's through 2 in a -- sort of a progressive experiential route with 3 training in recognised centres and then there is a 4 process of examination which includes written tests, the 5 formation of a case book where you describe ten (10) 6 cases that you've been involved in, review the literature 7 on those cases, undergo an oral examination, and then 8 finally perform an autopsy in front of the examiners. 9 MS. LINDA ROTHSTEIN: A few more aspects 10 about your background before we get to some of the basics 11 of your evidence. I understand, Dr. Pollanen, that you 12 are a widely published author in refereed publications 13 that are listed at pages 12 through 22 of your CV. 14 DR. MICHAEL POLLANEN: Yes. 15 MS. LINDA ROTHSTEIN: No need to turn to 16 those, Registrar. And they describe the major thrusts of 17 research? 18 DR. MICHAEL POLLANEN: Yes. 19 MS. LINDA ROTHSTEIN: Could you give an 20 outline to us of the major thrusts of your research in 21 the last five (5) years, please? 22 DR. MICHAEL POLLANEN: Well, the major 23 topical areas that I've been interested in concern head 24 injury, asphyxia, drowning, and more recently, 25 experimental studies on a very interesting phenomenon
481 called hypostatic haemorrhage. 2 MS. LINDA ROTHSTEIN: We'll come back to 3 that in some considerable detail tomorrow, Dr. Pollanen, 4 hold that thought. You are also actively involved in 5 international forensic missions, including postings in 6 East Timor, where I understand you've performed autopsies 7 on some of East Timor citizens who died around the time 8 of the UN-sponsored referendum in 1999? 9 DR. MICHAEL POLLANEN: Correct. That's 10 correct, yes. 11 MS. LINDA ROTHSTEIN: And most recently 12 you worked in the Kingdom of Cambodia, where you 13 performed examinations on skeletal remains dating back to 14 Pol Pot's Khmer Rouge regime. 15 DR. MICHAEL POLLANEN: Yes, the Khmer 16 Rouge genocide in the 70's. 17 MS. LINDA ROTHSTEIN: Commissioner, I 18 think you should also note that Dr. Pollanen was awarded 19 the 1995 gold medal of the Governor General of Canada, as 20 well as several other awards from various agencies. 21 All right, gentlemen. We'll come back to 22 your background in probably more detail as we talk about 23 some of the specific issues, but lets try and map out 24 some kind of broad 30,000 foot look at death 25 investigation by turning to the statistics that help us
491 to encapsulate the number of deaths in Ontario and death 2 investigations that follow from that. 3 Registrar, may we have slide 1? That's 4 not slide 1. There it is. Perfect. 5 So these slides by the way, Dr. Pollanen, 6 I think have been prepared by you and Dr. Mclellan 7 together, to assist us in getting through the evidence? 8 DR. MICHAEL POLLANEN: In fact our entire 9 team at the office. The Chief Coroner participated. 10 MS. LINDA ROTHSTEIN: The team's long, so 11 I won't name them all, but -- but thank you for that. 12 So we're talking in Ontario about 13 approximately eighty thousand (80,000) deaths per year. 14 Can you tell us, Dr. Mclellan, has that 15 figure been static more or less over the last decade? 16 DR. BARRY MCLELLAN: More or less. The - 17 - the range is usually between eighty thousand (80,000) 18 and eighty-five thousand (85,000) per year. 19 MS. LINDA ROTHSTEIN: All right. And 20 what probably isn't well know, but will become well known 21 to everyone in this room, is that there were at least two 22 (2) pieces of legislation that require all deaths to be 23 certified. Correct? 24 DR. BARRY MCLELLAN: Correct. 25 MS. LINDA ROTHSTEIN: And the only people
501 who can certify a death are physicians and registered 2 nurses in an extended class, as I understand it. 3 DR. BARRY MCLELLAN: Correct. 4 MS. LINDA ROTHSTEIN: Now, of the eighty 5 thousand (80,000) deaths per year, we have only twenty 6 thousand (20,000) of them that are investigated by the 7 coron -- coronial system. 8 Is that right? 9 DR. BARRY MCLELLAN: Yes. 10 MS. LINDA ROTHSTEIN: And again, Dr. 11 Mclellan, can you assist us. Has that number been more 12 or less static for the last decade? 13 DR. BARRY MCLELLAN: Yes. 14 MS. LINDA ROTHSTEIN: So if we were to go 15 back even to 1991, which is sort of a benchmark year for 16 our inquiry, would we see again about a quarter of all 17 deaths being the subject of a coronial investigation of 18 some sort? 19 DR. BARRY MCLELLAN: There was a change 20 in the mid 1990s where deaths that took place in nursing 21 homes and other extended care facilities were no longer 22 all investigated. 23 At that time, there were closer to thirty 24 thousand (30,000) death investigations per year. With 25 that change in legislation, it came down to approximately
511 twenty thousand (20,000), and since then, you know, plus 2 or minus a few thousand, it's been consistent. 3 MS. LINDA ROTHSTEIN: All right. But the 4 point, I guess gentlemen, that you know well, and we need 5 to make, is that the OCCO is responsible for 6 investigating and opening files in twenty thousand 7 (20,000) cases per year on average. 8 DR. BARRY MCLELLAN: Correct. 9 MS. LINDA ROTHSTEIN: And what we'll 10 hear, Commissioner, is that the nature and scope of those 11 investigations varies considerably, depending on how 12 complex or not complex the investigation is. 13 May we have the next slide, slide 2 14 please, Mr. Registrar? 15 So in the -- it is, I think, a common 16 misunderstanding, Dr. Mclellan, that all death 17 investigations by your office result in autopsies. 18 Can we go back to that slide please, 19 Registrar? 20 Do you agree with that? 21 DR. BARRY MCLELLAN: I agree with it. 22 MS. LINDA ROTHSTEIN: All right. The 23 reality is approximately one-third (1/3) of all of the 24 death investigations result in an autopsy. 25 Is that right?
521 DR. BARRY MCLELLAN: Correct. 2 MS. LINDA ROTHSTEIN: Okay. And again, 3 the seven thousand (7,000) number, how much has that 4 changed since the early 1990s? 5 DR. BARRY MCLELLAN: That has been quite 6 consistent. Again in the range of sixty-five hundred 7 (6,500) to just over seven thousand (7,000) throughout 8 that period of time. 9 MS. LINDA ROTHSTEIN: Okay. A couple of 10 terminology points we can use: autopsy and post-mortem 11 examination. 12 More or less interchangeably, gentlemen? 13 DR. BARRY MCLELLAN: Yes. 14 MS. LINDA ROTHSTEIN: No problem with 15 that? And the post-mortem examination that is done in 16 the context of the coronal system is done because the 17 coroner issues a warrant for it to be done. 18 DR. BARRY MCLELLAN: Correct. 19 MS. LINDA ROTHSTEIN: Okay. And the 20 important point again then, Dr. Mclellan, for us all to 21 note is that this does not require the consent of the 22 next-of-kin. 23 DR. BARRY MCLELLAN: That's correct. 24 MS. LINDA ROTHSTEIN: It is the decision 25 of the coroner to do it, and it has the power of
531 compelling that result. Am I correct? 2 DR. BARRY MCLELLAN: Correct. 3 MS. LINDA ROTHSTEIN: All right. But 4 again, just to give everybody a view of the world, it's 5 important to understand that there are many other 6 autopsies that take place in hospital settings largely 7 that are not the result of a coroner's warrant. 8 DR. BARRY MCLELLAN: That's correct. 9 MS. LINDA ROTHSTEIN: Dr. Mclellan, I 10 don't know if you know off the top of your head what the 11 approximate number of non-warranted autopsies would be in 12 Ontario on average? 13 DR. BARRY MCLELLAN: I do not know. The 14 number has gone done significantly in the past twenty 15 (20) years, but I do not know the current number. 16 DR. LINDA ROTHSTEIN: And just to help 17 everybody paint the picture, the reason for the autopsies 18 that would occur in hospital that are not the result of a 19 warrant, can you help us with that? 20 DR. BARRY MCLELLAN: These autopsies 21 would be conducted under consent, and would usually be to 22 further the understanding around the cause of death to 23 potentially assist medical practitioners and others with 24 future care. 25 MS. LINDA ROTHSTEIN: Okay. So then if
541 we talk about the number of autopsies in Ontario that are 2 on an annual basis of criminally suspicious or homicides, 3 we have a much smaller subset indeed. 4 DR. BARRY MCLELLAN: Correct. 5 MS. LINDA ROTHSTEIN: Two hundred (200) 6 to two hundred and fifty (250). 7 How has that number been obtained, Dr. 8 McLellan? 9 DR. BARRY MCLELLAN: We track these 10 numbers very carefully each year. The number has gone up 11 over the past decade and is usually in the past five (5) 12 years in the range between a hundred and seventy-five 13 (175) and two hundred and fifty (250). 14 MS. LINDA ROTHSTEIN: Okay. And then if 15 we look at the number of autopsies of children under the 16 age of five (5), it's a very, very small subset which are 17 autopsies into criminally suspicious or homicide cases. 18 Is that fair? 19 DR. BARRY MCLELLAN: Yes. 20 MS. LINDA ROTHSTEIN: All right. And has 21 that number of five (5) to fifteen (15) per year changed 22 since the early '90s. Do you know? 23 DR. BARRY MCLELLAN: It's my 24 understanding that the number has been quite consistent 25 for a decade. I can't say I can go back to the early
551 1990s. I have no reason to believe the number has 2 changed. 3 MS. LINDA ROTHSTEIN: Okay. Slide 3, 4 please, Mr. Registrar. 5 So going back to death investigation in 6 the twenty thousand (20,000) cases on average per year, 7 can you take us through the top portion of that slide, 8 Dr. McLellan, and assist us as to what those categories 9 are, and how they break down? 10 DR. BARRY MCLELLAN: Certainly. At the 11 top of the slide, there's a -- a breakdown by manner of 12 death, and the first five (5) boxes to the left of the 13 slide include homicide, accident, suicide, undetermined, 14 and natural deaths. 15 To the right of the slide, inquests. 16 That's a -- a separate box. That's not one of the 17 manners of death, but what's evident on the slide is 18 that, by far, most cases that are investigated by 19 coroners are natural deaths, approximately three-quarters 20 (3/4). 21 The next largest group, accidents; then 22 suicides; a group of undetermined causes; and then the 23 smallest group overall being homicide. 24 MS. LINDA ROTHSTEIN: Now what this slide 25 doesn't show, because it isn't a manner of death, is
561 where the language "criminally suspicious" fits on this 2 scheme, if you will. 3 And I take it, Dr. McLellan, that that 4 language is the language that suggests that deaths start 5 out as being, at least potentially, homicide or the 6 result of fowl play, but end up in the end, as a result 7 of the full death investigation, being otherwise 8 categorized. Is that fair? 9 DR. BARRY MCLELLAN: Yes. 10 MS. LINDA ROTHSTEIN: All right. So that 11 for example, there would be some death investigations 12 that at the outset would be characterized as criminally 13 suspicious that would, in fact, be classified at the end 14 as accidents, suicides, or undetermined? 15 DR. BARRY MCLELLAN: Yes. 16 MS. LINDA ROTHSTEIN: Even natural 17 deaths? 18 DR. BARRY MCLELLAN: Potentially. 19 MS. LINDA ROTHSTEIN: All right. Going 20 down to the bottom half of this slide, can you assist us 21 with the pediatric death categories, and what that tells 22 us? 23 DR. BARRY MCLELLAN: So this breaks 24 deaths down into those that occur between the age of zero 25 to 5 years.
571 Once again, the largest grouping are 2 natural deaths. The next largest being undetermined, or 3 accidents; almost the same. 4 Suicides do not take place in this 5 category, and the smallest number, as we talked about a 6 few minutes ago, being homicides in the range of five (5) 7 to fifteen (15) per year. 8 MS. LINDA ROTHSTEIN: All right. May we 9 have slide number 5 please, Registrar? 10 Dr. Pollan -- Dr. McLellan, the Coroner's 11 Act is obviously a statute of Ontario, but I take it, it 12 is a very detailed and specific statutory scheme for all 13 death investigation that takes place in this Province. 14 Is that a fair summary? 15 DR. BARRY MCLELLAN: For all coroner's 16 investigations, yes. 17 MS. LINDA ROTHSTEIN: And the duties and 18 obligations and powers of coroners are all contained in 19 that act? 20 DR. BARRY MCLELLAN: Yes. 21 MS. LINDA ROTHSTEIN: Lets look at the 22 organization of the office of the Chief Coroner, which I 23 gather is not actually referred to in the Act, but which 24 comprises many of the officers who are. 25 So first of all there is the Chief
581 Coroner -- 2 DR. BARRY MCLELLAN: Correct. 3 MS. LINDA ROTHSTEIN: -- of the Province, 4 and touching on him, or currently her, for the moment, 5 the Chief Coroner of Ontario, that's an appointment by 6 the Lieutenant Governor in Council as I understand it? 7 DR. BARRY MCLELLAN: Correct. 8 MS. LINDA ROTHSTEIN: And the primary 9 duties of that person are set out in Section 41 of the 10 Act? 11 DR. BARRY MCLELLAN: Correct. 12 MS. LINDA ROTHSTEIN: Can you sketch out 13 very briefly for us what the primary duties of the Chief 14 Coroner are please? 15 DR. BARRY MCLELLAN: Certainly, I can 16 refer directly to the Act: 17 "The Chief Coroner shall administer the 18 Coroner's Act and the regulations. 19 Supervises, directs and controls all 20 coroners in the performance of their 21 duties. Conducts programs for the 22 instruction of coroners and their 23 duties. Brings the findings and 24 recommendations of coroner's jury to 25 the attention of appropriate persons,
591 agencies and ministries. Prepares, 2 publishes and distributes a code of 3 ethics for the guidance of coroners. 4 And finally, performs other such duties 5 as assigned." 6 MS. LINDA ROTHSTEIN: All right. 7 Registrar, could you please pull up 057365. 8 Dr. McLellan, you will find this at Tab 3 9 of your book. It's a copy of the job description -- 10 position description prepared by the Ontario government 11 for the position of Chief Coroner, and I understand this 12 was the position description that would have been in 13 effect when you were carrying out that role? 14 DR. BARRY MCLELLAN: Correct. 15 MS. LINDA ROTHSTEIN: And if we can just 16 -- at the top under "Plan, Organize, and Direct", Mr. 17 Registrar, lets see if we can just highlight that, that 18 first paragraph. 19 The small point I want to make, Dr. 20 McLellan, with the Commissioner at least, is that the 21 obligations of the coroner go beyond the administration 22 of the Coroner's Act. 23 There's also work involved in a variety of 24 other statutes. If you could just very briefly sketch 25 that for the Commissioner, please?
601 DR. BARRY MCLELLAN: Certainly. The 2 other relevant acts include the Anatomy Act, on what 3 you're looking at, it's referred to as the Human Tissues 4 Gift Act that has subsequently been changed to the 5 Trillium Gift of Life Network Act. 6 But also includes the Cemeteries Act and 7 there are portions in all of those statutes that are 8 relevant to the work that coroners perform. 9 MS. LINDA ROTHSTEIN: May we have page 2 10 of that document, please, Registrar? Yeah, and just at 11 the bottom of that first paragraph, Registrar, if you 12 could just highlight the last sentence? 13 I want to talk about what -- the last 14 sentence of the first paragraph. That's it, perfect. I 15 just want to talk about what it is that the position 16 expects in the way of knowledge, and particularly, 17 medical knowledge of the coroner. 18 I notice, Dr. McLellan, that it includes 19 knowledge of pathology? 20 DR. BARRY MCLELLAN: It includes 21 knowledge of pathology. The Chief Coroner, at present, 22 has not been a pathologist, so does not have expertise in 23 the area of pathology, but is expected to have knowledge 24 of pathology in order to appropriately supervise coroners 25 and the work that they do.
611 MS. LINDA ROTHSTEIN: Okay. I hear you 2 say, "supervise coroners", what about supervising 3 pathologists? Does the extent of the pathology knowledge 4 of the cal -- coroner extend to being able to fine tunely 5 -- on a fine-tuned basis, overview the precise 6 pathological opinions of those that work for the OCCO? 7 DR. BARRY MCLELLAN: No. 8 MS. LINDA ROTHSTEIN: Next paragraph 9 deals with the judgment that is required in this job, and 10 I take it, Dr. McLellan, based on your experience, you 11 would agree that this is a job that calls for an 12 extraordinary amount of difficult judgment calls, is that 13 fair? 14 DR. BARRY MCLELLAN: Yes. 15 MS. LINDA ROTHSTEIN: All right. And 16 finally I want to deal with -- if you can scroll down 17 please, Registrar, the contacts -- we're going to come to 18 this in a moment; the reporting structure and so on. 19 It's the last paragraph of that page, Registrar. 20 Your direct report as Chief Coroner is to 21 whom? 22 DR. BARRY MCLELLAN: Currently, it is to 23 the Commissioner. 24 MS. LINDA ROTHSTEIN: And at the time 25 that this was drafted, it contemplates, as I see it, that
621 the report is to the Deputy and Assistant Deputy 2 Minister? 3 DR. BARRY MCLELLAN: Through -- to -- 4 through the Assistant Deputy Minister to the Deputy. The 5 only change since then is it's now through the 6 Commissioner to the Deputy. 7 MS. LINDA ROTHSTEIN: And the 8 Commissioner, excuse me, is...? 9 DR. BARRY MCLELLAN: Commissioner of 10 Public Safety. 11 MS. LINDA ROTHSTEIN: Thank you. All 12 right, can we go back to slide number 5 and talk a little 13 bit about the roles of the Deputy Chief Coroners? There 14 are two (2) of them, as I understand it, and have been 15 for some time. 16 DR. BARRY MCLELLAN: Yes. 17 MS. LINDA ROTHSTEIN: And can you walk us 18 through -- oh, just before we do that, sorry -- can we go 19 to slide 6, please? I didn't want to go any further, Dr. 20 McLellan, without making clear that our current Chief 21 Coroner is, of course, Dr. Bonita Porter who has taken 22 the Chair since your departure. 23 DR. BARRY MCLELLAN: Yes. 24 MS. LINDA ROTHSTEIN: Right. And we have 25 there the dates of Dr. Young's tenure --
631 DR. BARRY MCLELLAN: Yes. 2 MS. LINDA ROTHSTEIN: -- between 1990 and 3 2004, and before him, of Dr. Bennett between April '82 4 and March 1990, and, before him, Dr. Beatty Cotnam. 5 DR. BARRY MCLELLAN: Yes. 6 MS. LINDA ROTHSTEIN: Right. Just 7 quickly about Dr. Porter, because I think our record 8 should reflect this. She was appointed, as I say, in 9 September of '07 and in addition to her medical degree, I 10 understand she holds a Master's Degree in Pharmacology. 11 DR. BARRY MCLELLAN: Yes. 12 MS. LINDA ROTHSTEIN: You probably don't 13 recall when she joined the OCCO, but I'm told it was full 14 time in 1991. 15 DR. BARRY MCLELLAN: I have no reason to 16 dispute that. 17 MS. LINDA ROTHSTEIN: It was just a 18 little bit before your time. She served as the Regional 19 Supervising Coroner for Niagra from '91 to '96, so you 20 would have been Regional Supervising Coroners together 21 for some period of time? 22 DR. BARRY MCLELLAN: In fact, I didn't 23 start as a Regional Supervising Coroner until December of 24 1998, and by that point, Dr. Porter was the Deputy Chief 25 Coroner of Inquests.
641 MS. LINDA ROTHSTEIN: Okay. And that she 2 became in April of '96, I think. 3 DR. BARRY MCLELLAN: I have no reason to 4 dispute that. 5 MS. LINDA ROTHSTEIN: Okay. So, if we 6 can then go back to slide number 5 and talk a little bit 7 about the role of the Chief Forensic Pathologist, Dr. 8 Pollanen? First of all, no mention of the Chief Forensic 9 Pathologist in the Coroner's Act, is that right? 10 DR. MICHAEL POLLANEN: Correct. 11 MS. LINDA ROTHSTEIN: And, indeed, 12 there's really no mention of -- at least in any kind of 13 express or specific way -- of the role of forensic 14 pathologist in that statute. 15 DR. MICHAEL POLLANEN: Forensic 16 pathologists or pathologists in general. 17 MS. LINDA ROTHSTEIN: Right. The only 18 thing we know is that a pathologist is needed to do the 19 post-mortem examination. 20 DR. MICHAEL POLLANEN: No. In fact, the 21 Act says that a legally qualified medical practitioner. 22 MS. LINDA ROTHSTEIN: Okay. Sorry. 23 Thank you for that correction. So, is the word 24 "pathologist" found in that legislation? 25 DR. MICHAEL POLLANEN: No.
651 MS. LINDA ROTHSTEIN: Well, we know 2 something about your position, therefore, not from the 3 Act, but because there is a position description for it. 4 And if I may have Number 057369 please? And, 5 Commissioner, you'll find this at Tab 5. 6 THE COMMISSIONER: Thank you. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN 9 MS. LINDA ROTHSTEIN: Dr. Pollanen, I'm 10 looking at the last page of that document, and I'm noting 11 that it was dated March 30th of 2006, if I'm correct, and 12 my dates haven't been great so far, but you became the 13 Chief Forensic Pathologist in April '04. 14 DR. MICHAEL POLLANEN: April 2006. 15 MS. LINDA ROTHSTEIN: Okay. My dates are 16 really bad so far. That's right. That's what I meant. 17 That's exactly what I meant. My point being that this 18 was the job description that was presumably put in place 19 just before you assumed that position. 20 DR. MICHAEL POLLANEN: Correct. 21 MS. LINDA ROTHSTEIN: All right. Indeed, 22 did you have any hand in its drafting? 23 DR. MICHAEL POLLANEN: Yes. Dr. McCallum 24 and I reviewed the document together. 25 MS. LINDA ROTHSTEIN: All right. So, if
661 we can, Registrar, focus on paragraphs 3 and 4. 2 Paragraph 3 contemplates that your 3 consultative role goes beyond dealing with coroners; that 4 you provide that kind of advisory service to police, to 5 Crown attorneys. It says to lawyers; I take it that 6 would include members of the Defence Bar, Dr. Pollanen? 7 DR. MICHAEL POLLANEN: Yes. 8 MS. LINDA ROTHSTEIN: And that you offer 9 professional interpretation, guidance and authoritative 10 advice on avenues of examination, reference material, et 11 cetera; a principal advisor and senior consultant in the 12 specialized field of forensic pathology. 13 So I take it that in order for someone to 14 occupy this position, they would need the qualification 15 that you obtained outside of Canada in forensic pathology 16 as opposed to, simply, in pathology? 17 DR. MICHAEL POLLANEN: I'm not sure 18 that's a -- a requirement that is codified somewhere in 19 government, but certainly that has come to be how the 20 position has been appointed; that's -- that the person 21 who occupies the position has certification in forensic 22 pathology. 23 MS. LINDA ROTHSTEIN: Right. Now when we 24 go down to paragraph 4, I pause because it says: 25 "Overall responsibility for all
671 autopsies and assumes direct 2 responsibility for the most complex 3 cases pausing on all autopsies." 4 Is that all twenty thousand (20,000) that 5 are part of the coronial -- or seven thousand (7,000) 6 that are part of the annual number of autopsies done 7 under coronial investigation? 8 DR. MICHAEL POLLANEN: It's unclear, in 9 fact. 10 MS. LINDA ROTHSTEIN: What do you think, 11 Dr. Pollanen, is there a way for someone in your shoes to 12 really be responsible for all seven thousand (7,000) 13 post-mortems per year? 14 DR. MICHAEL POLLANEN: No. 15 MS. LINDA ROTHSTEIN: What's more 16 realistic? What can you actually do in relation to those 17 seven thousand (7,000), many of which, let's be clear, 18 are fairly routine; is that -- isn't that true? 19 DR. MICHAEL POLLANEN: Well, typically, 20 we would divide autopsies into those that are criminally 21 suspicious or homicidal and then another category which 22 you've called "routine", and not to diminish their 23 importance, but require less specific knowledge about 24 forensic pathology. 25 But just to come back to a specific
681 interpretation about Number 4. The -- the way I 2 understand Number 4 in terms of overall responsibilities 3 relate to the autopsies in the Provincial Forensic 4 Pathology Unit that is in Toronto. 5 But the overall responsibility in the other 6 sense includes providing guidance through autopsy 7 guidelines, policy development, educational programs, and 8 then, ultimately, being a consultant when cases are 9 difficult or when some member of the Death Investigation 10 Team requires a second opinion. 11 And a major sort of cornerstone of this 12 overall responsibility also includes the development and 13 implementation of quality processes related to review of 14 autopsy reports and that's something no doubt, we will 15 discuss in greater detail later. 16 MS. LINDA ROTHSTEIN: Right, we will. 17 May we have slide 7, please, Registrar? I 18 just want to review with you, briefly, the Chief Forensic 19 Pathologists over the last twenty-five (25) years or so. 20 Dr. Hillsdon Smith was twenty (20) years 21 in that chair as the Provincial Forensic Pathology. Did 22 you have -- have any opportunity to come to know him, Dr. 23 Pollanen? 24 DR. MICHAEL POLLANEN: Yes, I did. 25 MS. LINDA ROTHSTEIN: And he was
691 succeeded after some break -- or he was succeeded, sorry, 2 by Dr. David Chaisson in April of '94? 3 DR. MICHAEL POLLANEN: That's true, yes. 4 MS. LINDA ROTHSTEIN: Who continued until 5 2001, am I correct, is the -- or is 2000? 6 DR. MICHAEL POLLANEN: Well, essentially, 7 the position underwent a name change but the duties were 8 similar. 9 MS. LINDA ROTHSTEIN: All right. And 10 then there's this gap from July 2001 till July of 2004, 11 and I anticipate that we will hear some evidence about 12 that from Dr. Young and from Dr. Cairns, but Dr. 13 McLellan, can you help us just briefly with that. 14 There was apposite, I understand, of 15 persons with the qualifications who were able to step in 16 and assume that responsibility upon Dr. Chaisson's 17 departure in July, 2001, is that fair? 18 DR. BARRY MCLELLAN: I think it's fair 19 that one issue was a lack of people with the appropriate 20 training and experience, and the other was trying to 21 attract someone into the position based on the salary at 22 the time. 23 MS. LINDA ROTHSTEIN: Okay. And we're 24 going to deal with those issues as well, that is to say, 25 the salary differentials.
701 But Dr. Pollanen, briefly, if you will, 2 there is, as I understand it, and still today, some 3 differential between the salary that the forensic 4 pathologists received, that worked for the OCCO and the 5 salary that hospital-employed pathologists receive in 6 this province. 7 DR. MICHAEL POLLANEN: Yes, and indeed 8 forensic pathologists employed by hospitals; quite a 9 large differential. 10 MS. LINDA ROTHSTEIN: And that's 11 historical? 12 DR. MICHAEL POLLANEN: It is. 13 MS. LINDA ROTHSTEIN: Has anyone offered 14 an explanation to you as to why that would be? 15 DR. MICHAEL POLLANEN: Not a satisfactory 16 explanation. 17 MS. LINDA ROTHSTEIN: Needless to say, 18 we'll come back to that. So, Dr. Pollanen, at the time 19 that Dr. Chaisson departed as the Deputy Chief Coroner of 20 Pathology remind us where you were in your career, in 21 July 2001. 22 DR. MICHAEL POLLANEN: I believe I was in 23 residency. 24 MS. LINDA ROTHSTEIN: All right. But 25 upon completing all of that, I understand that you came
711 onboard, initially, as the Medical Director of the 2 Pathology Unit, the Provincial Pathology Unit, is that 3 correct? 4 DR. MICHAEL POLLANEN: No. I began first 5 as a staff pathologist -- 6 MS. LINDA ROTHSTEIN: Okay. 7 DR. MICHAEL POLLANEN: -- and then I 8 became the Medical Director of the Toronto Forensic 9 Pathology Unit responsible for the daily activities in 10 our autopsy service and dealing with quality assurance 11 procedures in the Toronto Forensic Pathology Unit, and 12 then later assumed the role of Chief Forensic 13 Pathologist. 14 MS. LINDA ROTHSTEIN: But at the time 15 that you assumed the role of Medical Director there was 16 no Chief Forensic Pathologist, you were the senior person 17 in that office? 18 DR. MICHAEL POLLANEN: For forensic 19 pathology, yes. 20 MS. LINDA ROTHSTEIN: So, that takes us, 21 if I can, Dr. McLellan, to the role of the Deputy Chief 22 Coroners. Can you tell us about those roles. You -- you 23 filled one of them for a period of time. They seemed to 24 be divided, historically, between investigations on the 25 one side and inquests on the other.
721 Can you speak to that, please? 2 DR. BARRY MCLELLAN: Certainly. 3 Subsection 4(2) of the Coroner's Act indicates that one 4 (1) or may -- more coroners may be appointed as Deputy 5 Chief Coroners, and these individuals have all of the 6 powers and authority of the Chief Coroner during the 7 absence of the Chief Coroner or his or her inability to 8 act. 9 Now the -- the two (2) Deputy Chief 10 Coroner's positions, the Deputy Chief Coroner of 11 Investigations and Inquests during the time that I was 12 Chief Coroner, were there to assist myself and to provide 13 supervision to the regional supervising coroners, as well 14 as on occasion directly, the Investigating and Inquest 15 Coroners. Although they're separate titles, there was 16 significant overlap and that at any given time, it may be 17 that an inquest issue could be brought to the attention 18 of Dr. Cairns or an investigation issue could have been 19 brought to the attention of Dr. Porter. 20 MS. LINDA ROTHSTEIN: All right. Let's 21 look at the Regional Supervising Coroners and their 22 regional boundaries. Mr. Registrar, can you turn up the 23 Institutional Report at page 120, please. 24 And Commissioner, that's the separate 25 binder that you have --
731 COMMISSIONER STEPHEN GOUDGE: Right. 2 MS. LINDA ROTHSTEIN: -- and it's 3 numbered in the top right-hand corner. 4 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 5 Okay. 6 7 CONTINUED BY MS. LINDA ROTHSTEIN: 8 MS. LINDA ROTHSTEIN: So, Dr. McLellan, 9 how many regions? Can you walk us through their basic 10 boundaries? 11 DR. BARRY MCLELLAN: Certainly. There 12 are nine (9) regions in the Province. They are outlined 13 on the current form between the two (2) pages that are to 14 follow. There is the central region which consists of 15 York, Durham, and Peel. There is a central west region, 16 and eastern region, Northeast, Niagra, Northwestern; 17 Toronto is divided into Toronto East and Toronto West; 18 and also Southwestern Ontario. 19 MS. LINDA ROTHSTEIN: And this document 20 appears to have last been updated July 10th, 2007. 21 Have there been any personnel changes that 22 you know of, Dr. McLellan, since then? 23 DR. BARRY MCLELLAN: Yes. There's been 24 some shifting of individuals. 25 We have an upcoming retirement of the
741 Regional Supervising Coroner for Northwestern Ontario. 2 Dr. Evans, who was covering Central West, is now 3 temporarily filling one of the deputy positions. So 4 there have been some changes since this was published. 5 MS. LINDA ROTHSTEIN: And just to go back 6 with a few basics. 7 Obviously the job of the Chief Coroner of 8 Ontario is a full-time salaried position with the Ontario 9 Government? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: So to the Deputy 12 Chief Coroners? 13 DR. BARRY MCLELLAN: Correct. 14 MS. LINDA ROTHSTEIN: So to the Regional 15 Supervising Coroners? 16 DR. BARRY MCLELLAN: Correct. 17 MS. LINDA ROTHSTEIN: But not so the 18 local coroners. Is that right? 19 DR. BARRY MCLELLAN: And we refer to them 20 as "investigating coroners" and correct. The 21 investigating coroners work on a fee-per-service basis. 22 MS. LINDA ROTHSTEIN: And is there a way 23 of estimating the average number of investigating 24 coroners that an individual Regional Supervising Coroner 25 would be responsible for supervising?
751 DR. BARRY MCLELLAN: There's a -- a 2 range. Perhaps it would be of assistance if I indicated 3 that over time there has been between three hundred (300) 4 and three hundred and thirty (330) investigating 5 coroners. 6 We have nine (9) regions. Some of the 7 Regional Supervising Coroners have supervised more than 8 fifty (50) at a time, but the goal is is to try to put 9 together the regions so that the number of investigations 10 are approximately the same. 11 The only difference is Northwestern 12 Ontario because there's only so much of a geographic area 13 that one (1) individual can cover. 14 MS. LINDA ROTHSTEIN: And talking about 15 the investigating coroners, then. They're all medical 16 doctors. 17 DR. BARRY MCLELLAN: Correct. 18 MS. LINDA ROTHSTEIN: Okay. And that is 19 indeed a feature of our legislation that, as I understand 20 it, Dr. McLellan, differentiates it from some other 21 coronial systems in the world. 22 DR. BARRY MCLELLAN: Yes. In Canada, 23 there are two (2) coroner systems where the coroners must 24 legislatively be physicians; Ontario and the much smaller 25 system in Prince Edward Island.
761 By far, most coroner systems across the 2 world are based on models where the coroners are not 3 physicians. 4 MS. LINDA ROTHSTEIN: Sometimes lay 5 people, like in British Colombia? 6 DR. BARRY MCLELLAN: Correct. 7 MS. LINDA ROTHSTEIN: And sometimes 8 lawyers -- 9 DR. BARRY MCLELLAN: Correct. 10 MS. LINDA ROTHSTEIN: -- as in England. 11 And unlike pathologists, the investigating coroners, 12 would it be fair to say, rarely have much formal training 13 in pathology? 14 DR. BARRY MCLELLAN: Yes, that's correct. 15 MS. LINDA ROTHSTEIN: Okay. They do not 16 usually perform autopsies. That's certainly not their 17 role as an investigating coroner. Correct? 18 DR. BARRY MCLELLAN: Correct. The 19 autopsies in the Province are performed by pathologists. 20 MS. LINDA ROTHSTEIN: Okay. So 21 notwithstanding what Dr. Pollanen told us, the practice 22 is that all autopsies in Ontario are performed by 23 pathologists. 24 DR. BARRY MCLELLAN: Currently all 25 autopsies in Ontario are performed by pathologists.
771 There has been, you know, rare exceptions in the past, 2 but not at present. 3 MS. LINDA ROTHSTEIN: Okay. Let's just 4 stop for two (2) moments, if we may, and talk a little 5 bit about the consequences of a coronial model that is 6 based on physicians as its investigating coroners. 7 What are the consequences of that for the 8 system? What does that do to the number of autopsies, 9 for example, Dr. McLellan, that are ordered on an annual 10 basis? 11 DR. BARRY MCLELLAN: Why, I certainly 12 believe there's significant advantages to a coroner's 13 system where the coroners are physicians. 14 With respect to your specific question, 15 because a medical doctor is investigating the death and 16 comes to that investigation with specific medical 17 knowledge, that medical doctor coroner is less likely to 18 order an autopsy than in other jurisdictions where it may 19 be a lawyer, for example, who is investigating the death. 20 MS. LINDA ROTHSTEIN: And is it fair to 21 infer from that that, you know, generally speaking, it 22 may be that our system prevents unnecessary autopsies 23 from occurring as it -- as may occur in other 24 jurisdictions without that medical eye at the front end? 25 DR. BARRY MCLELLAN: I don't think I'd
781 ever want to be quoted as saying that other jurisdictions 2 are doing unnecessary autopsies, but I appreciate what 3 you're saying. 4 We are able to do fewer and still deal 5 with our, you know, legislative duties of appropriately 6 answering the five questions and advancing public safety. 7 MS. LINDA ROTHSTEIN: What are the other 8 advantages of a physician based coronial system? 9 DR. BARRY MCLELLAN: A physician-coroner 10 comes to that investigation with medical knowledge. So 11 we believe they are better able to understand how the 12 individual has come to their death, and to take that info 13 -- information to be able to generate recommendations to 14 advance public safety. 15 We believe that assists with many of the 16 medical deaths, recognizing that three-quarters (3/4) of 17 the deaths are natural deaths. There are many 18 opportunities to learn from those deaths and to improve 19 care in future. And having a physician-coroner makes it, 20 in my opinion, far more likely that that will occur. 21 Now the advantages are not restricted to 22 the natural deaths. I expect at some time I will be 23 talking about the importance of team function, and having 24 a physician-coroner working with the pathologist as 25 another member of the team, to me, is a significant
791 advantage over other systems. 2 MS. LINDA ROTHSTEIN: Can we look at 3 slide number 8 please? So if we look at what we've 4 covered thus far, we have the Chief Coroner as being 5 responsible for the entire office of the Chief Coroner of 6 Ontario, supported by two (2) Deputy Chief Coroners; one 7 (1) in investigations, one (1) in inquests. 8 Dr. McLellan, the current occupant of the 9 Deputy Chief Coroner Investigations is Dr. Cairns? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: And the Deputy 12 Chief Coroner Inquest position is vacant? 13 DR. BARRY MCLELLAN: To the best of my 14 knowledge since September 17th. I don't have all 15 information as to the changes, but I don't believe that 16 Dr. Porter has filled that position. 17 MS. LINDA ROTHSTEIN: All right. The 18 Chief Forensic Pathologist is you, Dr. Pollanen. There's 19 a Chief Legal Counsel who is currently -- 20 DR. BARRY MCLELLAN: Eric Siebenmorgan. 21 MS. LINDA ROTHSTEIN: All right. And 22 they form part of -- is that a senior management team? 23 Should we think of it that way, Dr. McLellan, or not? 24 DR. BARRY MCLELLAN: When we think of the 25 -- the senior team, we in fact broaden it and include
801 Regional Supervising Coroners as a minimum, or depending 2 upon the issue, potentially the larger team as you see it 3 here, short of the local coroners. 4 MS. LINDA ROTHSTEIN: And the local 5 coroners number approximately three hundred (300). They 6 are working, almost all of them, part time for the 7 coronial system? 8 DR. BARRY MCLELLAN: That's correct. 9 There's a small number of coroners, especially in larger 10 cities. Toronto is the best example where they are doing 11 exclusively coroner's work. 12 The most common situation is that a 13 doctor, usually a family doctor, does coroner's 14 investigations as a very small part of his or her total 15 professional work. 16 MS. LINDA ROTHSTEIN: All right. And 17 then, Dr. Pollanen, you have reporting to you -- I think 18 you've mentioned this already, two (2) full time Forensic 19 Pathologists and a Manager of Forensic Services. 20 Your manager is responsible for what 21 functions, Dr. Pollanen? 22 DR. MICHAEL POLLANEN: A variety of 23 functions including the non-medical management of the 24 mortuary facilities, the autopsy room, the coroner's 25 dispatch unit, as well as provides some liaison functions
811 with some of our sort of allied agencies including the 2 Ontario Provincial Police, certain initiatives along 3 those lines. 4 MS. LINDA ROTHSTEIN: Okay. 5 DR. MICHAEL POLLANEN: Also he's 6 responsible for the non-medical staff including the 7 administrative and technical staff. 8 MS. LINDA ROTHSTEIN: So you have two (2) 9 full time Forensic Pathologists and two (2) vacancies. 10 How long have you had those vacancies? 11 DR. MICHAEL POLLANEN: For -- for some 12 time. 13 MS. LINDA ROTHSTEIN: Can you help us 14 with that please? 15 DR. MICHAEL POLLANEN: Forensic Pathology 16 is a challenging discipline. And there are certain 17 aspects of Forensic Pathology in the way Forensic 18 Pathology is practised in Ontario, that make recruitment 19 difficult. 20 So there are some barriers to recruitment, 21 including first of all, and that is for pathology in 22 general, a manpower shortage. There are -- most 23 physicians do not identify pathology as being a career 24 option and so will go into family medicine and surgery, 25 other disciplines, so there's a shortage of physicians
821 interested in pathology in the first instance. 2 The second is that if you are a 3 pathologist there is a wide-spectrum of job opportunity 4 available to you and those include branches of pathology 5 which come with it larger remuneration and less 6 controversy. 7 So, for example, if a -- a senior trainee, 8 a senior resident in pathology, is put into a position 9 where they are balancing, for example, dermatol 10 pathology, pathology of the skin -- which is certainly a 11 fascinating area, not as interesting as forensic 12 pathology -- but if they're balancing the two (2) often 13 the other specialty wins out. So there is a remuneration 14 problem. 15 The second or rather third major barrier 16 to recruitment in our system is that the forensic 17 pathology service is relatively flat. In other words, 18 the -- there isn't a straightforward career progression, 19 and for many forensic pathologists who join an 20 organization they -- one of the attractive features is 21 the opportunity for advancement through the system. 22 So, for example, if you look on the -- the 23 coroner's organizational chart there is a system of 24 deputies and regional supervising corners and that system 25 is not mirrored on the pathology side. And so what we
831 offer, essentially, to a pathology resident coming into 2 our organization is one level of employment with very 3 little opportunity for advancement at a lower salary than 4 everywhere else in the Province. 5 MS. LINDA ROTHSTEIN: In fact, if we 6 could just turn to the next slide, slide 9, the bulk of 7 the work that is done by pathologists for the OCCO is 8 done by fee-for-service pathologists. 9 DR. MICHAEL POLLANEN: That is correct, 10 yes. It's about -- numerically, it's about 50 percent of 11 the cases that are autopsied under coroner's warrant are 12 performed by pathologists working on a fee-for-service 13 basis. 14 MS. LINDA ROTHSTEIN: A hundred and 15 ninety (190) sounds like a very large number of 16 pathologists engaged in the work of the OCCO. 17 DR. MICHAEL POLLANEN: It is. 18 MS. LINDA ROTHSTEIN: What challenges 19 does that pose for you, Dr. Pollanen, as the Chief 20 Forensic Pathologist to the Province? 21 DR. MICHAEL POLLANEN: Well, I think it's 22 important to realize one important statistic here, and 23 that is that while there are a hundred and ninety (190) 24 pathologists performing autopsies across the Province, 25 homicide and criminally suspicious cases are -- the
841 autopsies of those cases are regionalised. 2 MS. LINDA ROTHSTEIN: Right. 3 DR. MICHAEL POLLANEN: For the most-part 4 regionalized, there are some exceptions, and the number 5 of pathologists that provide those autopsies number to 6 twenty-five (25). So the balancing number is one hundred 7 and ninety (190) versus twenty-five (25) for the 8 criminally suspicious cases. 9 MS. LINDA ROTHSTEIN: So stopping there 10 for a moment, Dr. Pollanen. You would see the criminally 11 suspicious and homicide cases as being amongst the most 12 complex of the post-mortems done under the auspices of 13 the OCCO, yes? 14 DR. MICHAEL POLLANEN: Correct. 15 MS. LINDA ROTHSTEIN: And you have 16 twenty-five (25), in effect, specialists dedicated to 17 that work, of the hundred and ninety (190) who do 18 autopsies generally? 19 DR. MICHAEL POLLANEN: Numerically, yes. 20 MS. LINDA ROTHSTEIN: Okay. And how have 21 you come to identify those twenty-five (25) people? 22 DR. MICHAEL POLLANEN: The people are 23 essentially identified by our regional service. So the 24 forensic pathology service across the Province 25 essentially is divided up into three (3) types of
851 institutions. 2 The first is the head office, which is the 3 Toronto Forensic Pathology Unit, where we perform post- 4 mortem examinations on about fifteen hundred (1,500) 5 cases per year. 6 The next level of service is provided by 7 the regional forensic pathology units that are present 8 throughout the Province and those units are staffed with 9 dedicated pathologists for medical/legal work. These 10 regional forensic pathology units, I imagine, we'll 11 discuss in greater detail, but form -- the way I think of 12 it as a -- a network; a collaborative network of 13 pathologists working in these units. 14 There are -- there is no strict 15 administrative or oversight link between, for example, 16 the -- the Chief Forensic Pathologist and the 17 pathologists working in the units, but there is a 18 collaborative link. 19 And then, the regional forensic pathology 20 units, if you go out further from there we have the 21 community hospitals. In the community hospitals where 22 the majority of the one hundred and ninety (190) fee-for- 23 service pathologists who work, have, as their primary 24 function, hospital pathology. They derive a salary from 25 the Ministry of Health to perform hospital duties and
861 they -- and then are paid by the Coroner's Service, fee- 2 for-service, for each of the post- mortems that they 3 perform. 4 MS. LINDA ROTHSTEIN: So, the -- if I 5 understand what you're saying, the majority of these 6 hundred and ninety (190) -- hundred and ninety (190) 7 pathologists are employed by -- employed by hospitals 8 doing fee-for-service work for the OCCO as well. 9 DR. MICHAEL POLLANEN: Correct. 10 MS. LINDA ROTHSTEIN: Okay. Let's go to 11 the last slide just before the break, if we can, which is 12 slide number 12. You've already foreshadowed this, Dr. 13 Pollanen; the regional forensic pathology units. If we 14 treat your office, the OPFPU -- or rather the -- excuse 15 me for that, the Ontario Pediatric -- sorry. My slide 16 looks different. No. Let's go through them one by one, 17 if we can. 18 The Hamilton Unit, that was established in 19 1992, I understand it, Dr. Pollanen. 20 DR. MICHAEL POLLANEN: The Hamilton Unit 21 was formally established by service agreement at that 22 time. But in -- in history, they always had a role in 23 providing forensic pathology service. 24 MS. LINDA ROTHSTEIN: Right. And its 25 current director is Dr. Chitra Rao?
871 DR. MICHAEL POLLANEN: Yes. 2 MS. LINDA ROTHSTEIN: Whom, Commissioner, 3 I expect we will hear from, at some point. 4 Does the Hamilton Unit do pediatric cases? 5 DR. MICHAEL POLLANEN: Yes, they do. 6 MS. LINDA ROTHSTEIN: The Kingston Unit, 7 I understand it, was not established until 2000. 8 Is that right? 9 DR. MICHAEL POLLANEN: It was later, yes. 10 MS. LINDA ROTHSTEIN: Okay. Its current 11 director is Dr. David Dexter? 12 DR. MICHAEL POLLANEN: Correct. 13 MS. LINDA ROTHSTEIN: And does it do 14 pediatric cases? 15 DR. MICHAEL POLLANEN: No. 16 MS. LINDA ROTHSTEIN: Where does it send 17 its pediatric cases? 18 DR. MICHAEL POLLANEN: Typically, Ottawa. 19 20 MS. LINDA ROTHSTEIN: The London Unit, I 21 understand, was established also in 2000. 22 DR. MICHAEL POLLANEN: I'm not certain of 23 the date. 24 MS. LINDA ROTHSTEIN: All right. And its 25 director is Dr. Michael Shkrum?
881 DR. MICHAEL POLLANEN: Yes. 2 MS. LINDA ROTHSTEIN: And it does 3 pediatric cases? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. LINDA ROTHSTEIN: The Ottawa Unit, 6 also established back in about 1992, if I'm not mistaken, 7 Dr. Pollanen? 8 DR. MICHAEL POLLANEN: Yes. 9 MS. LINDA ROTHSTEIN: Current director is 10 Dr. Brian Johnston, yes? 11 DR. MICHAEL POLLANEN: I don't believe 12 Dr. Johnston's the director currently. 13 MS. LINDA ROTHSTEIN: I thought I got 14 that from the Institutional Report. We'll clarify that 15 at the break. Does it -- it -- it does pediatric cases, 16 does it? 17 DR. MICHAEL POLLANEN: The -- the Ottawa 18 Forensic Pathology Unit actually separates the adult from 19 the pediatric cases, where the pediatric autopsies are 20 performed in the Children's Hospital of Eastern Ontario. 21 MS. LINDA ROTHSTEIN: And the Ontario 22 Pediatric Forensic Pathology Unit which, Commissioner, I 23 think we will come to call the OPFPU, is located at the 24 Hospital for Sick Children here in Toronto, correct? 25 DR. MICHAEL POLLANEN: Yes.
891 MS. LINDA ROTHSTEIN: That was 2 established in 1991 by agreement as well with the 3 Government. 4 Is that right? 5 DR. MICHAEL POLLANEN: Yes. 6 MS. LINDA ROTHSTEIN: And Dr. Smith was, 7 indeed, its first director? 8 DR. MICHAEL POLLANEN: Yes. 9 MS. LINDA ROTHSTEIN: Currently, its 10 director is Dr. David Chaisson who previously had been 11 the Chief Forensic Pathologist of Ontario. 12 DR. MICHAEL POLLANEN: Correct. 13 MS. LINDA ROTHSTEIN: Okay. It 14 continues, of course, to do pediatric cases in forensic 15 pathology. 16 DR. MICHAEL POLLANEN: Yes. 17 MS. LINDA ROTHSTEIN: The directors, as I 18 understand it, are all full-time employees of the 19 hospitals, but have this additional role directing 20 forensic pathology, and would be paid per diem for each 21 post-mortem examination they do for the OCCO, or not? 22 DR. MICHAEL POLLANEN: There is 23 variability among the units on that point. 24 MS. LINDA ROTHSTEIN: Why would that be? 25 DR. MICHAEL POLLANEN: I believe it's
901 essentially local arrangements made up in the hospitals. 2 MS. LINDA ROTHSTEIN: So, some of the 3 directors doing exactly the same work as other directors, 4 when they do a forensic autopsy for the OCCO, are paid in 5 addition to their hospital salary, others are not. 6 DR. MICHAEL POLLANEN: Correct. 7 MS. LINDA ROTHSTEIN: Okay. 8 Commissioner, it's 11:15. I think this is the time for 9 our morning break. 10 THE COMMISSIONER: Yes, thank you. We 11 will break now until 11:30, and be back promptly then. 12 Thank you. 13 14 --- Upon recessing at 11:15 a.m. 15 --- Upon resuming at 11:32 a.m. 16 17 COMMISSIONER STEPHEN GOUDGE: Ms. 18 Rothstein...? 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Thank you very 22 much, Commissioner. 23 Dr. Pollanen, I just -- before we move 24 forward and look a little -- look more specifically at 25 the actual fees that are paid to individual pathologists
911 doing work for the OCCO, can you explain to us the 2 difference between the work that is done by the OPFPU; 3 that is to say at the Hospital for Sick Children, and the 4 work that is done by the Provincial Forensic Pathology -- 5 Pathology Unit which you run, which I gather is also some 6 times called the TPFU. 7 DR. MICHAEL POLLANEN: Yes. 8 MS. LINDA ROTHSTEIN: Help us with all of 9 that. 10 DR. MICHAEL POLLANEN: Well, essentially 11 the majority of the infants in the catchment area of the 12 Toronto Forensic Pathology Unit would be autopsied in the 13 OPFPU. 14 So although the -- so essentially there is 15 a triage by age in the greater Toronto area, where cases 16 in the pediatric age spectrum would, for the most part, 17 go to the Hospital for Sick Children rather than my 18 department. 19 MS. LINDA ROTHSTEIN: Okay. And in your 20 department, all you are doing is forensic autopsies. 21 DR. MICHAEL POLLANEN: Correct. 22 MS. LINDA ROTHSTEIN: Unlike the hospital 23 settings, where we see that there are clinical autopsies 24 being performed, your unit is only focussed on forensic 25 autopsies.
921 DR. MICHAEL POLLANEN: Correct. 2 MS. LINDA ROTHSTEIN: All right. And, 3 Dr. Pollanen, again just for terminology purposes, can 4 you and I agree that a forensic autopsy is the same thing 5 as a medical/legal autopsy, or not? 6 DR. MICHAEL POLLANEN: Well, there are 7 different turns of phrase for this. 8 A coroner's autopsy would be the same 9 thing as a medical/legal autopsy. So in other words, 10 it's an autopsy being performed in the public interest to 11 advance medical/legal objectives. 12 MS. LINDA ROTHSTEIN: And not with next- 13 of-kin consent? 14 DR. MICHAEL POLLANEN: Correct. 15 MS. LINDA ROTHSTEIN: Okay. 16 DR. MICHAEL POLLANEN: And then we, as 17 forensic pathologists and other members of the death 18 investigation team, would then differentiate a -- we 19 would sometimes say "forensic autopsy" as representing 20 those medical/legal autopsies that eclipse crim -- the 21 criminal justice system. 22 MS. LINDA ROTHSTEIN: So as a subset of 23 medical/legal autopsies. 24 DR. MICHAEL POLLANEN: Correct. 25 MS. LINDA ROTHSTEIN: So the
931 medical/legal autopsies that are done to determine 2 whether some unfortunate death is accident or suicide, 3 would you put that in the forensic category, or not? 4 DR. MICHAEL POLLANEN: Very interesting. 5 It may, in fact, first present in a forensic category. 6 And, therefore, the -- the role that the forensic 7 pathologist plays is moving it out of the criminally 8 suspicious category into, for example, an accident 9 category. 10 MS. LINDA ROTHSTEIN: Okay. 11 COMMISSIONER STEPHEN GOUDGE: Dr. 12 Pollanen, you use forensic and criminally suspicious as 13 synonyms? 14 DR. MICHAEL POLLANEN: Yes. 15 MS. LINDA ROTHSTEIN: But am I right, Dr. 16 Pollanen, that if we look at some of the published 17 literature -- I was even looking at Knight's book 18 recently -- there is sometimes a use of forensic autopsy 19 as a synonym for medical/legal autopsy? 20 DR. MICHAEL POLLANEN: Yes. The terms 21 are loosely used, and are often used, specifically, in a 22 -- in a particular department, or a geographical area. 23 MS. LINDA ROTHSTEIN: And I take it that 24 you do agree with me, Dr. Pollanen, that the key 25 distinction we have to make is between medical/legal
941 autopsies on the one hand that are the result of the 2 legal authority responsible for death investigation 3 determining that they must occur, and the clinical or 4 hospital or academic autopsies on the other? 5 DR. MICHAEL POLLANEN: Correct. That is 6 a fundamental distinction. 7 MS. LINDA ROTHSTEIN: And it's important 8 for the Commissioner to understand that outside of your 9 unit at the peri -- Provincial Forensic Pathology Unit 10 all of these other centres are engaged in doing both 11 medical legal autopsies and clinical hospital autopsies. 12 DR. MICHAEL POLLANEN: Yes. 13 MS. LINDA ROTHSTEIN: And to that extent, 14 the environment in which these autopsies are done, 15 meaning coronial ones, has some differences? 16 DR. MICHAEL POLLANEN: Yes. 17 MS. LINDA ROTHSTEIN: Okay. Now, that's 18 really helpful. Let's just look at the funding issue, at 19 least briefly, for a moment. May we have the next slide, 20 please, which I believe is slide 13? 21 So these are -- these fees, as I 22 understand it, Dr. Pollanen, are set by the Ontario 23 Government, they're effectively a per-case fee, is that 24 fair? 25 DR. MICHAEL POLLANEN: Yes.
951 MS. LINDA ROTHSTEIN: And the non-complex 2 autopsy is currently paid at a thousand (1,000) per 3 autopsy? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. LINDA ROTHSTEIN: And the complex 6 cases at one thousand three hundred and fifty dollars 7 ($1,350) per autopsy? 8 DR. MICHAEL POLLANEN: Correct. 9 MS. LINDA ROTHSTEIN: And would all 10 criminally suspicious and homicide cases fit in the 11 latter category? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. LINDA ROTHSTEIN: And would all 14 paediatric forensic cases fit in the latter category? 15 DR. MICHAEL POLLANEN: Yes. 16 MS. LINDA ROTHSTEIN: All right. And 17 then just to be clear, you and I were talking earlier 18 about how this money is routed through the system. My 19 understanding is, is that if the autopsy is done at one 20 of the other regional centres, be it Sick Kids, or 21 Hamilton, or London, the OCCO pays this centre this rate 22 -- that centre this rate per autopsy. 23 DR. MICHAEL POLLANEN: Correct. 24 MS. LINDA ROTHSTEIN: And then leaves it 25 to the hospital or centre at which that autopsy is
961 performed to allocate that money to whomever. 2 DR. MICHAEL POLLANEN: That is my 3 understanding. 4 MS. LINDA ROTHSTEIN: And that's why we 5 get the kind of regional variation wherein some centres 6 this money, in large part, goes to the individual 7 pathologist who performed the autopsy, and in other 8 centres that isn't the case. 9 DR. MICHAEL POLLANEN: Correct. 10 MS. LINDA ROTHSTEIN: All right. And can 11 we just go back, while we're talking about money, to deal 12 with the fees for coronial investigations, and if I'm not 13 mistaken, we have some assistance in that regard, as 14 well. 15 Mr. Registrar, may we have page 125 of the 16 OCCO Institutional Report? Dr. McLellan, do you have 17 that? 18 DR. BARRY MCLELLAN: I do. 19 MS. LINDA ROTHSTEIN: All right, can you 20 walk us through the manner in which cor -- coroners are 21 paid for their investigative work and whether there's any 22 difference between routine and complex cases in the way 23 they are remunerated? 24 DR. BARRY MCLELLAN: Coroners are also 25 compensated on a fee-for-service basis. You'll note on
971 the slide that the current rate, which has been effective 2 since April 1 of '06 is three hundred dollars ($300) per 3 case, there is a night premium for those cases done after 4 midnight. There's also compensation for mileage. 5 Now, we have recognised certain cases as 6 being particularly complex where coroners can get extra 7 compensation; the criteria are outlined below. I can 8 tell you that it's not common for there to be extra 9 compensation, so coroners are most normally getting the 10 three hundred dollars ($300) per case. 11 MS. LINDA ROTHSTEIN: But what about 12 criminally suspicious and homicide cases; are they by 13 definition treated as qualifying for the extra 14 compensation that is set out here? 15 DR. BARRY MCLELLAN: Only if they would 16 meet a criteria 2 or 6, as outlined on this slide, where 17 the coroner was requested to attend a specific case 18 conference, or where there was an extra length of time 19 required at the scene because the case was recognised as 20 being particularly complex. 21 MS. LINDA ROTHSTEIN: Now again, at the 22 stage of broad overview, Dr. McLellan, you were good 23 enough to identify for me in this report a document which 24 shows the global annual budget for the last fiscal period 25 for the OCCO.
981 Can you help me with the page number for 2 that? 3 DR. BARRY MCLELLAN: I could have a few 4 minutes ago. I've subsequently turned pages but, in my 5 document, it is page 114. 6 MS. LINDA ROTHSTEIN: Mr. Registrar, it's 7 page 114 of the Institutional Report. 8 I understand that the fiscal year end for 9 the OCCO is March 31, 2007? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: And that this 12 document records the global budget for that last fiscal 13 period? 14 DR. BARRY MCLELLAN: Correct. 15 MS. LINDA ROTHSTEIN: And the total 16 therefore is? Drum roll, Dr. McLellan. 17 DR. BARRY MCLELLAN: Just over twenty-six 18 and a half million dollars; the total budget. 19 MS. LINDA ROTHSTEIN: And broadly 20 describe, if you know it, what percentage of that global 21 budget would be the funding of the fee-for-service 22 coronial work and the fee-for-service pathology work that 23 we've just reviewed. 24 DR. BARRY MCLELLAN: I would actually 25 need a budget breakdown in order to do that for you
991 today. It makes up a substantial portion but to actually 2 give you the exact figure, I would need to work it out. 3 If you wish, I can certainly provide that for you after 4 lunch. 5 MS. LINDA ROTHSTEIN: We'll ask your 6 counsel to see what they can do. Indeed, Commissioner, I 7 expect we'll have much more detailed financial 8 information about the OCCO as we proceed. 9 All right. I want to turn if I can then, 10 gentlemen, just to sort of wrap this piece up, to slide 11 number 10 -- just identifies for us the reporting 12 relationship which is, as you've described it, Dr. 13 McLellan, to the Commissioner of Public Safety, part of 14 the Ministry of Community Safety and Correctional 15 Services; shows clearly the Chief Forensic Pathologist 16 reporting through the Chief Coroner to the Commissioner. 17 Give us a bit of a feel as someone who has 18 been in that job for some time, Dr. McLellan, about how 19 close and how frequent the reporting is between the Chief 20 Coroner and the Commissioner. 21 DR. BARRY MCLELLAN: The reporting 22 relationship is primarily around administrative matters, 23 accountability for budget, requests for budget 24 enhancements. The office functions independently of 25 government influence when it comes to decision-making
1001 around individual cases, but we do function within 2 government and are, therefore, accountable for use of 3 resources. 4 MS. LINDA ROTHSTEIN: And if we look at 5 the historical picture at slide 11, please, Registrar, we 6 can see that pre-1993, there was a different structure in 7 place. 8 Again, Commissioner, I expect that Dr. 9 Young will be quite conversant on these issues and what 10 in fact were the reasons for the change, but formerly the 11 Chief Forensic Pathologists reported directly to the 12 Minister. 13 And, Dr. Pollanen, are you prepared to 14 share with us whether you think there's any advantage to 15 this prior reporting structure or whether you're content 16 to report through the Chief Coroner up to the Ministry? 17 DR. MICHAEL POLLANEN: Well, by way of 18 background on that issue first. 19 The reporting structures as you see them 20 for the pre-'93 arrangement came with it an additional 21 important detail and that was that the forensic pathology 22 service was then called the Forensic Pathology Branch, so 23 it was a separate entity in government. And the Chief 24 Forensic Pathologist was actually called the Provincial 25 Forensic Pathologist, and that was Dr. John Hillsdon
1011 Smith, so it was a separate branch of government entirely 2 from the Office of the Chief Coroner. 3 Although, the legal authority, for 4 essentially all of the functions of the forensic 5 pathology branch, flowed from the Coroner's warrant for 6 post-mortem examination and -- and the reporting 7 structure is as you see it. 8 So the -- the question that you have 9 posed, which is the advantages of these two (2) different 10 models is quite complicated because it would necessarily 11 include information of the latter type that I've given 12 you. So, essentially, it would determine how the 13 forensic pathology service is structured and, therefore, 14 that would be essentially the determinant of re -- of 15 reporting relationships. 16 But I can say in my -- in my own 17 experience as Chief Forensic Pathologist, that I did not 18 feel that my duties were hampered by reporting to the 19 Chief Coroner because the reporting structure was 20 administrative rather then professional. Now that of 21 course is an encapsulated answer which will need to be 22 broadened and contextualized later, but I think that 23 covers the main elements. 24 MS. LINDA ROTHSTEIN: And suffice it to 25 say, Dr. Pollanen, there's no doubt that both on a day-
1021 to-day basis, and on an issue basis, there's a need for 2 extensive collaboration between the Chief Forensic 3 Pathologist and the Chief Coroner? 4 DR. MICHAEL POLLANEN: I would go 5 further, and I would say that their extensive 6 collaboration needs to occur at all levels in the 7 hierarchy. Because the output of death investigation, 8 the quality of death investigation will be ultimately 9 determined by how well the different members of the team 10 perform their function in an integrated fashion. 11 So one of the important aspects of 12 organizational charts is to maintain good working 13 relationships and not putting up barriers to team work. 14 There are other considerations that -- that come into 15 play as well, but I think that's one of the essential 16 elements. 17 MS. LINDA ROTHSTEIN: Well let's turn 18 then to that all important subject of death 19 investigation, and I don't know if you want to take a 20 moment, Dr. McLellan, and just describe from your own 21 experience what you believe the importance of sensitive, 22 high-quality death investigations are to our province? 23 DR. BARRY MCLELLAN: Well I -- I clearly 24 feel it's -- it's very important in that coroner's 25 investigations lead to direct advancements of public
1031 safety. There's a subset of those cases we'll be 2 speaking of, where the investigation is integral to the 3 administration of justice. 4 And certainly the public expect that 5 deaths that are occurring suddenly and unexpectedly, and 6 of unnatural means, will be appropriately investigated. 7 So I feel it's an essential part of -- of public service 8 here in Ontario. 9 MS. LINDA ROTHSTEIN: And indeed I 10 understand, Dr. McLellan, that you were instrumental in 11 bringing into force the first written guideline for 12 coronial death investigations. 13 And I would ask you, Registrar, to please 14 turn up 032371. 15 DR. BARRY MCLELLAN: Could I request a 16 separate Tab number? 17 MS. LINDA ROTHSTEIN: And the Tab number 18 for you is Tab 7, and for you as well Commissioner, 19 sorry. Oh it's -- you know what, it is actually -- yeah, 20 here we go, 7 and 8. 21 So this is a memorandum dated June 27th, 22 2003, at the time, Dr. McLellan, you were the Deputy 23 Chief Coroner of Forensic Services? 24 DR. BARRY MCLELLAN: Correct. I was also 25 the acting Chief Coroner at that time.
1041 MS. LINDA ROTHSTEIN: Okay. And how did 2 it come to be that you assembled for the first time, 3 these written guidelines for death investigation for the 4 OCCO? 5 DR. BARRY MCLELLAN: Through this period 6 of time the office was focussing more on mechanisms to 7 ensure and improve the quality of coroner's 8 investigations. Part of that process was to deliver 9 clear expectations to coroners as to what the office 10 expected when they were conducting death investigations. 11 A Quality Assurance Committee had been 12 struck, and I sat on this committee right from that time 13 it was first started through until I -- I left in 14 September of this year. And there was an opportunity to 15 work with ultimately the Ontario Coroner's Association 16 cooperatively to develop what I feel are some very 17 important guidelines. 18 MS. LINDA ROTHSTEIN: And the Ontario 19 Coroner's Association is the professional association for 20 coroners? 21 DR. BARRY MCLELLAN: Correct. 22 MS. LINDA ROTHSTEIN: Voluntary 23 membership? 24 DR. BARRY MCLELLAN: Correct. 25 MS. LINDA ROTHSTEIN: And at the time its
1051 president was Dr. Albert Lauwers? 2 DR. BARRY MCLELLAN: That's correct. 3 MS. LINDA ROTHSTEIN: Is he still the 4 President? 5 DR. BARRY MCLELLAN: No, Dr. Lauwers 6 subsequently became a Regional Supervising Coroner. 7 MS. LINDA ROTHSTEIN: Okay. Does that 8 disqualify one from being the President of the 9 Professional Association? 10 DR. BARRY MCLELLAN: Yes. Yes, it does. 11 MS. LINDA ROTHSTEIN: Okay. 12 DR. BARRY MCLELLAN: And as I worked 13 closely with Dr. Lauwers when he was President of the OCA 14 and then subsequently worked closely with him when he 15 became a Regional Supervising Coroner. 16 MS. LINDA ROTHSTEIN: Okay. He went into 17 management, so to speak? 18 DR. BARRY MCLELLAN: So to speak. 19 MS. LINDA ROTHSTEIN: All right. And, 20 so, Commissioner, at Tab 8 you have those guidelines, 21 which I understand are fourteen (14) in number, and I 22 expect, Commissioner, that we'll hear considerable 23 amounts of evidence about aspects of these. 24 I just want to foreshadow them for you. 25 And as well, ask you to turn up the next Tab 9 and 10.
1061 And Registrar, may we have 032 -- or 2 sorry, actually wrong one. Yeah, 032495. 3 I understand, Dr. McLellan, that that 4 first addition of the Guidelines for Death Investigation 5 has now been replaced by a second addition from April of 6 this year? 7 DR. BARRY MCLELLAN: That's correct. 8 MS. LINDA ROTHSTEIN: And again was it a 9 similar process of the Quality Assurance Committee 10 working out some modifications to the earlier guidelines 11 in an endeavour to improve them? 12 DR. BARRY MCLELLAN: Yes. 13 MS. LINDA ROTHSTEIN: All right. And 14 specifically, what was the focus of the changes between 15 the '03 guidelines and the '07 guidelines, if you will? 16 DR. BARRY MCLELLAN: There were some new 17 sections added in the area of acceptance of cases, and 18 also completion and issuing of a cremation certificate, 19 and a specific revision to the coroner's investigation 20 statement section, which is four point five (4.5) in the 21 document. 22 MS. LINDA ROTHSTEIN: All right. So 23 before these guidelines, would it be fair to say, Dr. 24 McLellan, that the guidance which coroners had apart from 25 the manual was really founded in the legislation itself?
1071 That is to say the Coroner's Act? 2 DR. BARRY MCLELLAN: Yes. Legislation. 3 There were opportunities to also educate coroners, and 4 Regional Supervising Coroners would be working closely 5 with their individual coroners, but this was an 6 opportunity to develop consistent expectations across the 7 Province. 8 MS. LINDA ROTHSTEIN: Commissioner, 9 you'll note that the Institutional Report prepared by the 10 OCCO conveniently contains a copy of the Coroner's Act. 11 Registrar, page 78 of that document. 12 I want to, if I can, Dr. McLellan, take a 13 few minutes to sketch out the legislative scheme in which 14 these investigations are done. 15 Seventy-eight (78) of the Institutional 16 Report. That's it. 17 Dr. McLellan, you described for the 18 Commissioner briefly what the circumstances are that lead 19 to what is known, I think, in your profession as a 20 "reportable death". 21 DR. BARRY MCLELLAN: Yes. This is 22 covered in Section 10 of the Coroners Act. And in 23 general terms, we summarized this as saying that all 24 unnatural deaths, all sudden and unexpected natural 25 deaths, and all deaths under specific circumstances as
1081 defined in 10(1)(c) through (g), are cases where if an 2 individual has knowledge that someone has died under such 3 circumstances, the case should be reported to a coroner. 4 MS. LINDA ROTHSTEIN: And Registrar, if 5 we could just flip over to 15(1), which is at page 81 of 6 that Institutional Report. 7 Am I right, Dr. McLellan, that if one has 8 a reportable death, that that makes a coroner's 9 investigation of some sort a mandatory obligation of the 10 coroner? 11 DR. BARRY MCLELLAN: Well the coroner 12 must make his or her determination whether or not the 13 information received is correct -- 14 MS. LINDA ROTHSTEIN: Right. 15 DR. BARRY MCLELLAN: -- and if it is, 16 then per subsection 15(1), the coroner will issue a 17 warrant to take possession of the body and conduct an 18 investigation. 19 MS. LINDA ROTHSTEIN: So, can you 20 contrast that for us, please, Dr. McLellan, with the 21 circumstances in which the coroner may conduct an 22 investigation under 15(2)? 23 Could you highlight that, please, Mr. 24 Riley, 15(2) on that page, subparagraph 2 under Section 25 15.
1091 DR. BARRY MCLELLAN: Well, this provides 2 an opportunity for the Chief Coroner to direct that an 3 investigation be conducted, so it provides discretion to 4 the Chief Coroner to order an investigation where an 5 investigation may not yet have commenced. 6 MS. LINDA ROTHSTEIN: Okay. And can you 7 give us a situation, an example, that would help to 8 illustrate the sorts of circumstances that result in 9 those sorts of decisions being made? 10 DR. BARRY MCLELLAN: It would normally be 11 a circumstance where information has come to the Chief 12 Coroner or a Deputy where a death has previously 13 occurred. Some concern may have been brought to the 14 attention of the Chief Coroner, Deputy, or Regional 15 Supervising Coroner thereafter, and the Chief Coroner 16 would feel it was important to investigate and would 17 thereby direct that an investigation take place. That 18 would be the most common circumstance. 19 MS. LINDA ROTHSTEIN: All right. Page 81 20 of that document, please. Walk us through, if you would, 21 Dr. McLellan, the powers of the coroner to conduct an 22 investigation once he ha -- or she has decided that one 23 is necessary or appropriate. 24 DR. BARRY MCLELLAN: So, the 25 investigative powers are defined in Section 16 of the
1101 Act, and this section provides the coroner with 2 legislative authority to view or take possession of a 3 body, to enter and inspect anyplace where a dead body is 4 and any place from which the coroner has reasonable 5 grounds for believing the body was removed. 6 It also provides the coroner with further 7 opportuni -- further powers of inspection, and as well, 8 powers to inspect and extract, specifically, information 9 from records or writings, and finally, under Subsection 10 16(2)(c), powers to seize anything the coroner has 11 reasonable grounds to believe is material for the 12 investigation. 13 MS. LINDA ROTHSTEIN: Page 82, please, 14 Registrar. Thanks. And if you would highlight under 15 delegation of power, Subsection 3. 16 That's the authority the coroner has to 17 authorize, as we've discussed, a legally qualified 18 medical practitioner -- or no, that isn't one of the 19 powers we've discussed, sorry -- or police officer to 20 exercise their powers. 21 Can you help us with that, Dr. McLellan? 22 How often does that occur? 23 DR. BARRY MCLELLAN: It does not occur 24 often, but because of the large size of the Province, the 25 fact that some deaths will occur at a great distance from
1111 where a coroner may be resident, it's essential to be 2 able to conduct a death investigation without having to 3 move the body to a coroner or the coroner moved to the 4 body, so this provides powers of delegation where another 5 physician, non-coroner, or a police officer can exercise 6 all of the powers that are identified in 16(1). 7 MS. LINDA ROTHSTEIN: Okay. And then 8 page 85, please, Registrar, of that same document. 9 There, Dr. McLellan, is the power of the 10 coroner, as we've discussed, to order the post-mortem 11 examination and the analyses that may follow from that. 12 DR. BARRY MCLELLAN: That's correct, and 13 that's defined in subsection 28(1) of the act. 14 MS. LINDA ROTHSTEIN: Now, help us 15 understand in practical terms, if you will, Dr. McLellan, 16 how a coroner carries out this function in tandem with 17 police forces in the context of a criminally suspicious 18 death or homicide. 19 DR. BARRY MCLELLAN: Okay, well, coroners 20 are conducting death investigations in order to answer 21 the five (5) questions and to advance public safety. 22 Coroners do not conduct investigations to advance a 23 criminal investigation. 24 Under a circumstance where someone has 25 died under apparent unnatural means, it is appropriate,
1121 based on what we have discussed, for the coroner to be 2 proceeding with an investigation once that death is 3 reported. So under such circumstances, the coroner, 4 again to answer the five (5) questions and to advance 5 public safety, will initially issue a warrant for post- 6 mortem examination and then subsequently determine what 7 further investigation is necessary. 8 The pathologist is the one who then 9 conducts the autopsy under the authority of the coroner. 10 MS. LINDA ROTHSTEIN: And, just because 11 you've touched on it a couple of times and I haven't 12 taken the Commissioner to the section, can we go back to 13 page 83, Registrar? 14 Subsection 2 of Section 18 talks about the 15 five (5) questions, as I understand it, Dr. McLellan. 16 DR. BARRY MCLELLAN: That's correct. 17 MS. LINDA ROTHSTEIN: And they are...? 18 DR. BARRY MCLELLAN: They are how, when, 19 where and by what means the deceased came to his or her 20 death as well as the identity of the deceased. 21 MS. LINDA ROTHSTEIN: And that is 22 something that must follow, as I understand it, from 23 every case that a coroner has undertaken. 24 DR. BARRY MCLELLAN: That's correct. 25 MS. LINDA ROTHSTEIN: And that's whether
1131 or not there is a corresponding police investigation. 2 DR. BARRY MCLELLAN: That's right. Now, 3 now we're talking in general terms, and police 4 investigation includes police conducting a criminal 5 investigation, but also includes the fact that most 6 commonly a police officer is acting as a coroner's 7 investigator in order to inves -- in order to advance the 8 coroner's investigation. 9 MS. LINDA ROTHSTEIN: Right. And, 10 indeed, is that the majority of the coroner's 11 investigations; there will be police involvement of some 12 kind? 13 DR. BARRY MCLENNAN: Yes. The police 14 would be involved in any death that occurs outside of an 15 institution, so outside of a hospital, nursing home. So 16 that would include many natural deaths that occur at home 17 or, again, outside of an institution. And police would 18 be involved at all apparent unnatural deaths. 19 So it's very common for police to be 20 assisting the coroner with his or her coroner's 21 investigation. There's obviously a very small subset of 22 cases where police are conducting a parallel criminal 23 investigation. 24 MS. LINDA ROTHSTEIN: And if we just talk 25 briefly before we get into some more detail about the
1141 investigation of the criminally suspicious and homicide 2 cases, can we talk about the re -- reporting 3 requirements? 4 As I understand it, there is an obligation 5 on coroners to prepare at least two (2) documents 6 following each and every investigation; one (1), the 7 Coroner's Investigation Statement -- is that right? 8 DR. BARRY MCLELLAN: Correct. 9 MS. LINDA ROTHSTEIN: And the other being 10 the Medical Certificate of Death. 11 DR. BARRY MCLELLAN: Correct. 12 MS. LINDA ROTHSTEIN: And, Commissioner, 13 just for your reference, you will find some helpful 14 material on each of those; the Coroner's Investigation 15 Statement at page 159 of the Institutional Report and the 16 forms for the Medical Certificate of Death at page 161 of 17 that report. 18 Now, help us, Dr. McLellan, feed into this 19 investigation that the coroner is conducting, the 20 decision around whether or not to hold an inquest. 21 DR. BARRY MCLELLAN: So returning first 22 to Section 10 of the Act, there are circumstances where 23 an inquest is mandatory. These will be circumstances 24 where someone dies in custody and also where someone dies 25 as a result of an accident at or in a construction
1151 project, mining plant or mine. 2 There is also another circumstance where 3 an inquest is mandatory. This is a recent change to the 4 Act, and that is now in subsection 22(1) of the Coroner's 5 Act. 6 Now, those mandatory circumstances account 7 for approximately two thirds (2/3s) of all inquests. 8 When a coroner is making his or her decision as to 9 whether a discretionary inquest should be called, he or 10 she takes into account section 20 of the Coroner's Act 11 which sets out three (3) criteria. 12 The first, whether the answers to the five 13 (5) questions are known. 14 The second, the desirability of the public 15 being fully informed of the circumstances of the death 16 and the third, the likelihood that a jury might make 17 recommendations directed to avoidance of death under 18 similar circumstances. 19 MS. LINDA ROTHSTEIN: Now thus far, Dr. 20 McLellan, and I don't want to tax your memory, I know 21 there have been small changes, but is the legislative 22 scheme that you've described the one that was in place 23 when you first became a coroner in the early '90s? 24 DR. BARRY MCLELLAN: Yes. 25 MS. LINDA ROTHSTEIN: The legislation
1161 hasn't changed a lot, but the underlying practices and 2 procedures, I take it, have been a work in process? 3 DR. BARRY MCLELLAN: Correct. 4 MS. LINDA ROTHSTEIN: Okay. All right. 5 With that basic background, I do want to ask if I can 6 focus both of your attention on the investigation of a 7 criminally suspicious death or a homicide. 8 And let me start with the fundamentals, 9 Dr. McLellan. Who decides? 10 Is it necessary at the front end of a 11 coroner's investigation for the coroner to come to some 12 preliminary conclusion about whether this is criminally 13 suspicious or not because that will affect the manner of 14 investigation or is that a misapprehension? 15 DR. BARRY MCLELLAN: Well, the coroner 16 should approach each and every investigation with a 17 broad, open mind. Having said that, if a coroner is 18 originally contacted about a case by police and is 19 informed at that time that currently the police are 20 considering the death criminally suspicious or homicide, 21 the coroner will certainly start the investigation with 22 that information. 23 That does not mean, however, that the 24 coroner does not conduct his or her entire investigation 25 with an open mind.
1171 MS. LINDA ROTHSTEIN: And to what extent, 2 if at all, does the fact that the coroner has, at least 3 on a preliminary basis, concluded that this may be a 4 criminally suspicious one; to what extent does that 5 inform the scope or the nature of the investigation which 6 he or she conducts? 7 DR. BARRY MCLELLAN: Well, it does 8 provide a context that would result in the coroner doing 9 some things differently from the outset. 10 The first is if this is a new or 11 inexperienced coroner, they may take the opportunity to 12 contact the regional supervising coroner for guidance in 13 advance of even attending at the death scene. 14 MS. LINDA ROTHSTEIN: Right. 15 DR. BARRY MCLELLAN: If they're informed 16 by police that the police are considering this to be a 17 potentially criminally suspicious homicide death scene, 18 it's very important that the coroner, in conducting his 19 or her investigation, is not interfering in any way with 20 the parallel criminal investigation. 21 So under such circumstances, the coroner - 22 - coroners are educated to speak to the police in 23 advance, to understand what they know of before going to 24 inspect the body and to ensure that when they are making 25 initial observations, they are in no way disturbing the
1181 body in any way that may affect a parallel criminal 2 investigation. 3 So it does change the way that the coroner 4 will conduct his initial investigation. 5 MS. LINDA ROTHSTEIN: Slide 15, please, 6 Registrar. 7 What about the Death Investigation Team, 8 Dr. McLellan? Does the composition of that team depend, 9 to some degree, on whether or not this is a criminally 10 suspicious death? 11 DR. BARRY MCLELLAN: It does. As you can 12 appreciate, if a coroner is investigating a death in a 13 healthcare institution that's a natural death, that 14 coroner may not require any of the other members of the 15 Death Investigation Team. 16 When the coroner is investigating a death 17 that's considered criminally suspicious, police will be 18 present. The coroner, will almost assuredly unless 19 information changes dramatically, be ordering an autopsy 20 and other experts, other professionals, may be called 21 upon to assist depending upon the investigation. 22 So, that the Death Investigation Team. I 23 think a useful analogy here is a sports analogy that I 24 use when I'm educating coroners and other members of the 25 Death Investigation Team, and that's that the coroner is
1191 very much like a quarterback. And the legislative 2 authority for the death investigation is the coroner's 3 legislative authority. However, every member of the 4 team, depending upon the case, is very important. 5 And depending upon the individual case, 6 using the sports analogy, the individual play, it may be 7 that one or more members of that team become of far 8 greater importance. 9 So, overall, it's the team function that's 10 most important when one's advancing a complex 11 investigation, but the contributions of the team members 12 varies depending upon the individual case. 13 MS. LINDA ROTHSTEIN: All right. Lets 14 just segue for a moment if we can, about the training and 15 education that has been offered to coroners in being 16 quarterbacks of, sometimes, quite large and complex 17 teams. 18 When you began, lets start with that, Dr. 19 McLellan, as a coroner, what was the kind of education 20 that you received? 21 DR. BARRY MCLELLAN: I was provided with 22 some materials in advance: the Coroner's Investigation 23 Manual at the time, copy of the Coroner's Act, some other 24 recent memos. I then attended a two (2) day course that 25 was provided at the office of the Chief Coroner.
1201 The course was predominately put on by 2 senior members of the office, Chief Forensic Pathologist. 3 It included -- and I should mention as well, legal 4 counsel. It included information about legislation, the 5 law as it applies to coroner's investigations. 6 There was education around, you know, when 7 to order an autopsy, how an investigation would be 8 conducted differently based upon circumstances. And much 9 of that teaching was based on case scenarios. 10 MS. LINDA ROTHSTEIN: So that was in 11 1993? 12 DR. BARRY MCLELLAN: Correct. 13 MS. LINDA ROTHSTEIN: And can you assist 14 the Commissioner as to how long that two (2) day 15 education had been in effect for new coroners? 16 DR. BARRY MCLELLAN: It started in the 17 early 1990's. 18 MS. LINDA ROTHSTEIN: Okay. 19 DR. BARRY MCLELLAN: I can't tell you 20 exactly when. I can tell you prior to that there was no 21 formal system in place. And much of the education was 22 done by the regional supervising coroner, one on one, 23 with the new coroner. 24 MS. LINDA ROTHSTEIN: And we'll no doubt 25 spend some considerable time looking at the educational
1211 materials, Dr. McLellan, but just so we have a bit of a 2 picture of the changes that have been evolving at the 3 OCCO, walk us through the kind of training that new 4 coroners would get today? 5 DR. BARRY MCLELLAN: So it now is a two 6 and a half (2 1/2) day course. There are -- it's a very 7 structured program. Now when I say that, we get feedback 8 from coroners at the end of each and every course that 9 results in some changes so that we can try and improve 10 each educational course. 11 But it starts off with an overview of 12 legislation. It includes talks on the death 13 investigation scene, the importance of forensic 14 pathology, the importance of legislation, the committees 15 that are available to advance coroner's investigations, 16 and throughout, a series of -- of case scenarios which 17 has been shown over time to be the most effective way to 18 teach individual coroners. 19 So it -- it covers a lot of material in a 20 short period of time. The new coroners leave very 21 exhausted. One question that frequently has come up is, 22 why is it not longer? 23 And in order to try to strike a balance 24 between providing as much information as possible, and 25 yet also ensuring that we're respecting the time of
1221 physicians who are travelling sometimes across the 2 Province to come, and trying not to dissuade them from 3 coming, this seems to be the most appropriate balance. 4 MS. LINDA ROTHSTEIN: And to what extent, 5 if at all, can the regional supervising coroner triage 6 his or her cases so as to target more experienced 7 investigating coroners with the criminally suspicious and 8 homicide cases? 9 DR. BARRY MCLELLAN: This is not 10 currently done. It's something, in fact, I suggested 11 many years ago, and the -- the coroner's investigations 12 are conducted either on an on-call basis, or by whoever 13 is reporting the death contacting a coroner directly. 14 And currently there is no system in place 15 that tries to match the complexity of the investigation 16 with the training -- well, the experience of the 17 individual coroner. 18 MS. LINDA ROTHSTEIN: And just while 19 we're there, and thinking about the onerous 20 responsibility that these men and women have to 21 undertake, what -- what is the recruitment for -- for 22 coroners? 23 You told us a little bit about your own 24 experience and how you became interested in the coroner's 25 system, but how, in general, does the OCCO recruit its
1231 investigating coroners? 2 DR. BARRY MCLELLAN: So the decision to 3 recruit is based on community need, and it is far more 4 challenging to find coroners in some of the rural and 5 more remote locations. 6 You can appreciate that if there's a 7 community that, right now, is under serviced as far as 8 doctors providing care, it's very difficult to ask these 9 individuals to take additional call, additional 10 responsibilities on top of, so it can be very difficult 11 in some of the areas of the Province where there's 12 already a lack of physician resources. 13 In some of the larger centres, there are 14 many, many applicants that may come forward for one (1) 15 or two (2) positions. In other parts of the Province we 16 have been very unsuccessful in getting any coroners. 17 MS. LINDA ROTHSTEIN: All right. So, if 18 we can focus then again on the subject of the criminally 19 suspicious death or homicide investigation and put 20 ourselves in the shoes of the coroner who's already come 21 to that preliminary conclusion, either because the police 22 have -- have given him or her the sort of information 23 that would inform that view, or otherwise, what are the 24 first steps that he or she would take to advance that 25 investigation in a criminally suspicious or homicide
1241 case? 2 DR. BARRY MCLELLAN: So, the coroner, 3 having arrived at the death scene, having spoken to the 4 lead police officer, would make some examinations of the 5 body, predominantly to assist with that very difficult 6 and contentious question around post-mortem interval, but 7 make observations about rigour mortis, lividity, body 8 temperature without disturbing the body in anyway that 9 may interfere with further examination to take place by 10 the forensic pathologist. 11 The coroner would order an autopsy to be 12 conducted. Now -- 13 MS. LINDA ROTHSTEIN: But just before you 14 get there, I want to go back to one thing. 15 Dr. McLellan, I heard you say the coroner 16 would attend at the scene. Is that an obligation in 17 every criminally suspicious and homicide case? 18 DR. BARRY MCLELLAN: No. 19 MS. LINDA ROTHSTEIN: Okay. 20 DR. BARRY MCLELLAN: In certain 21 circumstances it's just not feasible because of the 22 location. 23 MS. LINDA ROTHSTEIN: All right. Is it 24 something that is more frequent now than if we look back 25 ten (10) years ago?
1251 DR. BARRY MCLELLAN: Yes. 2 MS. LINDA ROTHSTEIN: Okay. My sense, 3 Dr. McLellan, is that the OCCO is doing what it can to 4 encourage investigating coroners to go the scene in 5 criminally suspicious and homicide cases. 6 Is that fair? 7 DR. BARRY MCLELLAN: Yes, it's fair. One 8 of the specific guidelines that we spoke about a few 9 minutes ago addresses the issue of attendance at scenes 10 and our expectations for coroners to attend at scenes. 11 And again prior to that there was no guideline with clear 12 expectations for a coroner to know necessarily what he or 13 she was expected to do. 14 MS. LINDA ROTHSTEIN: All right. 15 DR. BARRY MCLELLAN: Having said that, I 16 assure you that the expectation has always been clear 17 that for a criminally-suspicious homicide case, unless 18 it's in a remote difficult to access location, that the 19 coroner would attend. 20 MS. LINDA ROTHSTEIN: Okay. So, you were 21 taking us, then, to the decision to order the post-mortem 22 examination and I interrupted you, please continue. 23 DR. BARRY MCLELLAN: So there's -- 24 there's not much of a decision in a particular case like 25 this. The coroner would order a post-mortem examination.
1261 Now, that next decision then is where should that autopsy 2 be conducted and by whom. 3 MS. LINDA ROTHSTEIN: Right. 4 DR. BARRY MCLELLAN: We expect that 5 coroners, under such circumstances where they're making a 6 decision, will be in contact with their regional 7 supervising coroner. This may necessitate, you know, a 8 very long trip; it could be in fact very expensive. And 9 before doing so, the investigating coroner must 10 communicate with the regional supervising coroner. 11 In Toronto there is no decision to make. 12 That body wou -- would come to the Toronto Forensic 13 Pathology Unit. 14 MS. LINDA ROTHSTEIN: So the -- the 15 Investigative Coroner and the Regional Supervising 16 Coroner, either together or not, make the decision on 17 where the body will be autopsied, but not which 18 pathologist will do the autopsy? 19 DR. BARRY MCLELLAN: No. So the -- the 20 issue around the where, we now have very clear direction 21 as to where homicide autopsies will be conducted. So 22 there's a lim -- it's not as if the Regional Coroner 23 would be thinking outside of those locations. It would 24 be which of those is most appropriate based on the 25 circumstances.
1271 It may be for a very, very complicated 2 case, even in close proximity to another Regional 3 Forensic Pathology Unit, that that body may be 4 transported to Toronto because of just how complex it is. 5 MS. LINDA ROTHSTEIN: Right. 6 DR. BARRY MCLELLAN: The individuals 7 within the regional units or the other sites, currently 8 Thunder Bay and Kenora, they're already identified as 9 pathologists who we have determined to be appropriately 10 credentialed, qualified to conduct a criminally 11 suspicious homicide autopsy. 12 So the corner will not write a name on the 13 warrant, or it's very unusual to do so, but it is known 14 within our system which forensic pathologists -- which 15 pathologists -- should be conducting those autopsies. 16 MS. LINDA ROTHSTEIN: So, Dr. Pollanen, 17 to what extent, if at all, are you consulted about where 18 the body should be autopsied and, to any extent, who 19 should do the autopsy? 20 DR. MICHAEL POLLANEN: Minimally. 21 MS. LINDA ROTHSTEIN: And, from your 22 perspective, Doctor, would it be better if someone who 23 has the large responsibilities which you do for forensic 24 pathology in the Province had some role in providing some 25 advice and opinion on that?
1281 DR. MICHAEL POLLANEN: Yes. 2 MS. LINDA ROTHSTEIN: Would it be 3 feasible to do? 4 DR. MICHAEL POLLANEN: Not in the current 5 structure. 6 MS. LINDA ROTHSTEIN: Because...? 7 DR. MICHAEL POLLANEN: Essentially, the 8 best way to accomplish that would be to have a system of 9 Deputy Chief Forensic Pathologists that would have a 10 regional role in a way that is symmetrical to the 11 coroner's structure. 12 MS. LINDA ROTHSTEIN: So that it wouldn't 13 be the Chief Forensic Pathologist of the Province that 14 was responsible for fielding those calls and giving the 15 advice. It would be done on a regional basis in tandem 16 with the Regional Supervising Coroner, if I understand 17 you. 18 DR. MICHAEL POLLANEN: Correct. 19 MS. LINDA ROTHSTEIN: All right. All 20 right, so the body has moved to a hospital setting or, 21 indeed, to the Toronto Forensic Pathology Unit for 22 autopsying. Walk us through the continued role of the 23 investigating coroner in a criminally suspicious or 24 homicide case. 25 DR. BARRY MCLELLAN: It may -- it may
1291 actually go back a step from that, in that, you know, in 2 circumstances where there would be value added by having 3 a forensic pathologist attend at the scene and where 4 there is a forensic pathologist available to do so, it 5 may be that a forensic pathologist will attend at the 6 scene before that body is moved in order to assist with 7 the examination they're going to conduct. 8 MS. LINDA ROTHSTEIN: So let me just 9 stop, if I may, Dr. McLellan, and ask you, Dr. Pollanen, 10 how common is it now, in your current post, for you to 11 attend a scene? 12 DR. MICHAEL POLLANEN: I would say it's 13 relatively frequent for me largely because we have -- Dr. 14 McLellan and I instituted a memo at some point in the 15 recent past where we gave advice to the coroners and the 16 police in the Greater Toronto area of the necessity of 17 the forensic pathologist to attend certain scenes. 18 And not all homicide and criminally 19 suspicious cases, but we've identified categories of 20 cases where the issues would benefit from a pathologist 21 scene visit. And I should also say that there is a -- 22 there's become a regionalized practice on this issue as 23 well. 24 For example, traditionally the 25 pathologists working out of the Hamilton Unit have always
1301 had a very robust scene presence through local 2 arrangements with their police services. 3 In other parts of the Province, different 4 -- the different Regional Forensic Pathology Units may 5 not have been so scene-oriented. 6 COMMISSIONER STEPHEN GOUDGE: Who decides 7 that, Dr. Pollanen, the coroner or the pathologist, that 8 is, whether a scene visit is necessary or desirable? 9 DR. MICHAEL POLLANEN: Well, in -- I can 10 speak for Toronto specifically about that issue and that 11 is that the police or the coroner, or sometimes both, 12 will call the forensic pathologist when the body is 13 discovered. And there will be a dialogue over the 14 telephone about the nature of the case. And in the 15 majority of those circumstances, the forensic pathologist 16 will then attend the scene. 17 18 CONTINUED BY MS. LINDA ROTHSTEIN 19 MS. LINDA ROTHSTEIN: And Dr. Pollanen, 20 to what extent can you assist the Commissioner with what 21 was historically the case; how often it was in the late 22 '90s, early 2000, for pathologists to actually attend a 23 scene? 24 DR. MICHAEL POLLANEN: Rare. 25 MS. LINDA ROTHSTEIN: Now this is
1311 something that the Commissioner should appreciate, is 2 really quite a new approach to these cases? 3 DR. MICHAEL POLLANEN: It is in fact the 4 classical approach in forensic pathology for the forensic 5 pathologist to attend scenes. 6 MS. LINDA ROTHSTEIN: But new to Ontario? 7 DR. MICHAEL POLLANEN: I would say in 8 most parts of Ontario, yes. 9 MS. LINDA ROTHSTEIN: Okay. And what 10 challenges does it actually create once we stop being 11 Toronto-centric or even urban in our thinking and look at 12 the vast geographical area of Ontario? 13 To what extent will that ever be something 14 that we could achieve in the majority of criminally 15 suspicious and homicide cases? Can you speak to that? 16 DR. MICHAEL POLLANEN: Well, I think 17 there are two (2) dimensions to that question. 18 The first is that one of our unique 19 challenges in the Province of Ontario with regard to 20 death investigation in general and forensic autopsy 21 services as well, is that our geography inhibits us. 22 It's a very powerful force that limits what we can do in 23 terms of our producing uniformity of service across the 24 Province. 25 So on that note, it will never be
1321 possible, I would say, for there to be a quantitative 2 response to all criminally suspicious scenes and homicide 3 scenes by qualified forensic pathologists. 4 The challenge for us is to, then, say how 5 do we harness alternatives to achieve the same goal. And 6 one of the things that has been very useful lately has 7 been transmitting scene information remotely using 8 digital photography. 9 So, for example, you may have a 10 circumstance where an autopsy is being performed or a 11 scene is -- is being investigated at some remote 12 location, and those digital images can be sent to the 13 forensic pathologist and that will form the basis of some 14 professional decision-making about whether, for example, 15 it's desirable to get on a plane and go to the scene 16 which I've done in the past under those circumstances or 17 whether the information is sufficient encapsulated in the 18 digital photography that a scene visit is not required. 19 So, really, you can view it in one way as 20 a challenge; in other words, how can we think creatively 21 to meet the challenge to improve our quality. 22 MS. LINDA ROTHSTEIN: Okay. Dr. 23 McLellan, back to the process of an investigation into a 24 criminally suspicious or homicide death and let's assume 25 that the body has been sent to a centre for autopsy and
1331 the pathologist has been engaged. 2 First question: How frequent is it for 3 the coroner in those sorts of cases to actually attend 4 the autopsy? 5 DR. BARRY MCLELLAN: It's not frequent. 6 It -- it does happen on occasion. In certain 7 circumstances there may be a value-add. There maybe 8 something the coroner knows of or can add. 9 That is not a common situation so at this 10 particular point the examination of that body is now 11 falling into the expertise of the forensic pathologist 12 and, again, most commonly a coroner will not be there. 13 One thing I just wanted to pick up on from 14 Dr. Pollanen's earlier answer, and I think it's 15 important, is throughout this process there cannot be too 16 much communication. 17 And going back to the team function, there 18 needs to not only be protocols and understanding but an 19 opportunity for coroner, pathologist, other members of 20 the team to be communicating. Thinking of the 21 circumstance where a body may have been moved a distance 22 in Ontario down to Toronto for an autopsy; that would 23 have been a decision that Dr. Pollanen and I would have 24 made together; sharing information, deciding what's the 25 best thing to do in that particular case.
1341 Communication between the coroner and 2 pathologist in such cases as we're talking about, 3 homicide cases, we are encouraging coroners to call the 4 pathologist and actually speak to them to make sure that 5 there's, you know, clear information available, and then 6 we can talk after about the communication going the other 7 direction. But it's very important that there's clear 8 lines of communication. 9 MS. LINDA ROTHSTEIN: Yeah. Dr. 10 McLellan, you said there cannot be too much 11 communication, which I think is gonna read ambiguously on 12 our transcript. 13 By that you meant just that there can 14 never be -- that there must be as much communication as 15 possible. Is that the positive way of putting it? 16 DR. BARRY MCLELLAN: Yes. I -- 17 MS. LINDA ROTHSTEIN: Okay. 18 DR. BARRY MCLELLAN: -- didn't realize it 19 was unclear, but I can see how it may have been. 20 And the importance is, is that the members 21 of the team are communicating very well throughout so 22 important information is in the appropriate hands. 23 MS. LINDA ROTHSTEIN: Right. And, so we 24 don't always judge everything by today's standards, can 25 you think back, Dr. McLellan, to 1993 when you were first
1351 a local coroner -- investigating coroner. 2 First of all, can you give the 3 Commissioner an idea in the years that you were an 4 investigating coroner how many criminally suspicious or 5 homicide cases you were involved in? 6 DR. BARRY MCLELLAN: I can't give you an 7 exact number. It would be a relatively small number 8 because I was not a busy investigating coroner, I was a 9 busy practitioner. You know, I can't give you an exact 10 number. 11 MS. LINDA ROTHSTEIN: Okay. 12 DR. BARRY MCLELLAN: I -- I was invest -- 13 I was involved with cases. 14 MS. LINDA ROTHSTEIN: Right. 15 DR. BARRY MCLELLAN: And, you know, at 16 that time my own personal experience, I would be 17 communicating with the regional supervising coroner in 18 each case. I communicated with the pathologist in each 19 case. 20 In fact, it was my practice to communicate 21 with the pathologist in each and every autopsy, not just 22 homicide or criminally suspicious cases. Going back to 23 the importance of communication. 24 MS. LINDA ROTHSTEIN: All right. And did 25 you ever attend an autopsy during that period of your
1361 career? 2 DR. BARRY MCLELLAN: Yes. 3 MS. LINDA ROTHSTEIN: Okay. All right. 4 So you've emphasized the importance of the communication, 5 and I -- I gather from speaking to both of you at length 6 before today, that the communication couldn't be more 7 important when it comes to some of the key determinations 8 that have to be made following that autopsy and all 9 ancillary testing. 10 And Dr. McLellan, the determinations about 11 cause of death and manner of death are, by virtue of our 12 statute, the coroner's. Correct? 13 DR. BARRY MCLELLAN: That's correct. 14 That's looking at the big picture of the twenty thousand 15 (20,000) death investigations and the analogy I gave 16 earlier of the quarterback, yes. 17 MS. LINDA ROTHSTEIN: Right. 18 DR. BARRY MCLELLAN: The legislative 19 authority is that of the coroner to ultimately deal with 20 cause and manner of death. 21 We may or may not move into this now, but 22 when it comes to a homicide or criminally suspicious 23 case, this is the case where the role of the pathologist 24 becomes very important. 25 It is the pathologist who's going to
1371 examine that body, reach conclusions about cause of 2 death, which lead directly to conclusions about manner of 3 death under such circumstances, and it's the pathologist 4 who will be, you know, communicating with police, the 5 Crown, potentially testifying in Court. 6 So in this particular case, yes, the 7 coroner is ultimately responsible in legislation for 8 completing the Investigation Statement and determining 9 cause and manner of death, but it's certainly my opinion 10 that the role of the pathologist in such cases, overall, 11 is more important than that of the coroner. 12 MS. LINDA ROTHSTEIN: Has that always 13 been the case in your view? 14 DR. BARRY MCLELLAN: That the role of the 15 pathologist is more important than the coroner? In my 16 view it is, yes. 17 MS. LINDA ROTHSTEIN: All right. Dr. -- 18 MR. BARRY MCLELLAN: In these -- in this 19 subset of cases. 20 MS. LINDA ROTHSTEIN: In the subset of 21 cases of criminally suspicious and homicide. 22 Before we talk about the role of the 23 pathologist, I think, Dr. Pollanen, it would be helpful 24 if we could define some terms again, because lawyers 25 throw them around loosely, and God knows, we -- we don't
1381 understand the nuance differences. 2 So manner of death, start with that; and 3 then I want you to distinguish it from mode of death, 4 mechanism of death, so that we all have a level playing 5 field for the terminology. 6 DR. MICHAEL POLLANEN: Well it's -- it's 7 most convenient to start with cause of death. 8 MS. LINDA ROTHSTEIN: Okay. Fair enough. 9 DR. MICHAEL POLLANEN: Because everything 10 essentially flows from cause. 11 The -- the cause of death is the injury or 12 disease that ends life, quite simply. Now it can, in -- 13 in practice, be far more complicated than that, involving 14 analyses -- analysis of causal change, et cetera, but 15 that's ultimately the issue. 16 The manner of death, or rather the 17 mechanism -- lets do the mechanism next. The mechanism 18 of death is the series of abnormal physiological 19 processes that ultimately results in life ending due to 20 the cause of death. So an example of that would be, a 21 cause of death might be a stab wound of the neck, and the 22 mechanism of death would be exsanguination. 23 So it's the loss of blood is really the -- 24 the mechanism of death. Another convenient example would 25 be a cause of death such as manual strangulation, and the
1391 mechanism of death would be asphyxia which is starvation 2 of the -- of the brain of oxygen. 3 So you have cause of death, you have 4 mechanism of death, and cause of death and mechanism of 5 death are then distinguished from the third which is 6 manner of death. And manner of death is defined as the 7 means by which the cause of death occurred. 8 And it -- just a very simple analysis will 9 -- you will see, that the manner of death is more protean 10 and involves a greater set of data; specifically, and 11 most importantly, circumstances. 12 The circumstances of the case, while 13 undeniably important in -- in cause of death, clearly 14 important in cause of death, becomes even more important 15 in manner of death. 16 And a simple example will suffice. 17 Somebody may have a gunshot wound to the head, but it may 18 be suicidal, accidental or homicidal, which are the -- 19 you know, the three (3) cardinal manners of death. And 20 on the basis of the autopsy findings, it may be not 21 possible from purely an examination of the body to 22 determine the manner of death, although the cause and 23 mechanism are -- are quite clear. 24 So we -- we recognize on that basis five 25 (5) universal manners of death: natural, accident,
1401 suicide, homicide, and then an interesting category 2 called undetermined. 3 MS. LINDA ROTHSTEIN: And when you say 4 "universal," Dr. Pollanen, you mean these are universally 5 recognized categories that are used throughout the world? 6 DR. MICHAEL POLLANEN: Yes. 7 MS. LINDA ROTHSTEIN: Okay. Mode of 8 death; you haven't touched on that. 9 DR. MICHAEL POLLANEN: Mode is sometimes 10 used as manner or mechanism, depending on usage. 11 MS. LINDA ROTHSTEIN: All right. So 12 going back to the statutory frame work which requires the 13 coroner to provide the conclusion on cause of death and 14 manner of death, how do you see the role of the 15 pathologist in that system, Dr. Pollanen? 16 DR. MICHAEL POLLANEN: Well if you -- if 17 you go strictly by, for example, the warrant for post- 18 mortem examination, the warrant provides -- rather 19 compels the pathologist to perform a post-mortem. 20 And the specific wording in the warrant is 21 to give an opinion on the cause of death. And the cause 22 of death opinion that's given by the pathologist, on the 23 basis of the autopsy, can either be accepted or rejected 24 by the coroner. 25 Now in practice, it would be quite rare
1411 for a coroner to reject a cause of death given by a 2 pathologist, but you know, that's a possibility. 3 Certainly in controversial matters where there are 4 differences of opinion in -- in cause of death, 5 certification of the death by the coroner then becomes an 6 issue. 7 So the -- you can think of it -- or the 8 way I think of it is that the coroner's warrant provides 9 the basis for the pathologist to give an opinion on the 10 cause of death, but that it is silent on the manner of 11 death. 12 So not only does the pathologist not have 13 the responsibility of providing an opinion on the manner 14 of death, it's -- it's quite different from the cause of 15 death, because not only is the pathologist not certifying 16 the cause of death, but he is giving an opinion on it. 17 So there's two (2) dimensions there. 18 Having said that, in the -- in the circumstance of a 19 criminally suspicious death, or homicide, the pathologist 20 often de facto is determining the manner of death. 21 MS. LINDA ROTHSTEIN: Mm-hm. 22 DR. MICHAEL POLLANEN: And that is easy 23 to see because if the pathologist has come to the 24 conclusion of manual strangulation, then it, necessarily, 25 implies homicide. So there are -- in those cases the
1421 pathologist by virtue of -- of giving the cause of 2 death, will de facto determine the manner of death, but 3 will certify neither. 4 MS. LINDA ROTHSTEIN: Okay. And in your 5 experience, Dr. McLellan, did you ever take issue with 6 the opinion that was formed by the pathologist on the 7 cause of death? 8 DR. BARRY MCLELLAN: Yes. 9 MS. LINDA ROTHSTEIN: Okay. 10 DR. BARRY MCLELLAN: And it would be very 11 uncommon, but there are certain cases where, based on my 12 medical background, I may have felt that there was not 13 sufficient, as an example, of coronary artery disease 14 found to be able to say the death was the result of 15 coronary artery disease. 16 And when such circumstances arose in the 17 past, and thi -- this is not at all common, I would speak 18 to the pathologist. I can't think of a circumstance 19 where at the end of that conversation there was not 20 agreement amongst mys -- between myself and the 21 pathologist as to which way to proceed and the case was 22 then, you know, certified and -- and closed. 23 MS. LINDA ROTHSTEIN: And what about 24 manner and -- manner of death? In your practice did you 25 call on the pathologist to assist you in formulating that
1431 conclusion, as well? 2 DR. BARRY MCLELLAN: Well, the call on 3 the pathologist, as -- as Dr. Pollanen has indicated, 4 often the conclusion reached as to cause of death leads 5 directly -- 6 MS. LINDA ROTHSTEIN: Right. 7 DR. BARRY MCLELLAN: -- to the conclusion 8 as to manner of death. 9 MS. LINDA ROTHSTEIN: Mm-hm. 10 DR. BARRY MCLELLAN: But as an example, 11 in certain circumstances it would not have been unusual 12 for Dr. Pollanen and I to sit down and to talk in a 13 complex case about, you know, how cause of death under 14 such circumstances may appropriately translate to -- to 15 manner of death. 16 MS. LINDA ROTHSTEIN: Right. 17 DR. BARRY MCLELLAN: I look at it very 18 much as a team approach. 19 MS. LINDA ROTHSTEIN: And if there's 20 disagreement -- first of all, have you ever had an 21 ongoing disagreement with the coroner, Dr. Pollanen, 22 about either cause of death or manner of death? 23 DR. MICHAEL POLLANEN: Well, certainly by 24 virtue of -- of my job, I'm often involved in giving 25 second opinions.
1441 MS. LINDA ROTHSTEIN: Mm-hm. 2 DR. MICHAEL POLLANEN: And those second 3 opinions are usually in cases where there is controversy. 4 And so I would say that's quite commonly a circumstance 5 that I'm involved with. 6 I would say, however, that it is -- it 7 would be rare for a -- for a coroner to specifically 8 inquire of the pathologist regarding manner of death. 9 And that -- of course, there is communication between the 10 coroner and the pathologist and I certainly have had 11 conversations regarding manner of death. But -- but 12 there is more a separation of duties between the 13 pathologist and the coroner on that issue. 14 DR. BARRY MCLELLAN: And I -- I agree 15 with that, just to make sure that -- make sure that -- 16 MS. LINDA ROTHSTEIN: Okay. But in 17 saying that, I take it, Dr. Pollanen, that you would be 18 volunteering your views, not only on cause of death, but 19 on mechanism? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. LINDA ROTHSTEIN: And those two (2) 22 together would almost certainly inform the decision made 23 on manner of death. 24 DR. MICHAEL POLLANEN: Yes, it would have 25 si -- significant elements to it.
1451 MS. LINDA ROTHSTEIN: All right. 2 Commissioner, it is quarter to 1:00, it is 3 a convenient time for us to break, if that's your 4 pleasure. 5 COMMISSIONER STEPHEN GOUDGE: Yes. No, 6 that is fine. We will break now until two o'clock and 7 try to start promptly then. Thank you. 8 9 --- Upon recessing at 12:45 p.m. 10 --- Upon resuming at 1:59 p.m. 11 12 COMMISSIONER STEPHEN GOUDGE: Okay, Ms. 13 Rothstein, away we go. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Thank you, 17 Commissioner. 18 Dr. Pollanen, when we left off we were 19 discussing the role of the pathologist in providing 20 advice -- sorry, thank you -- we were discussing the role 21 of the pathologist in providing advice to the coroner 22 with respect to the manner of death. I just want to 23 finish that subject if we can or at least tidy it up a 24 bit. 25 Dealing with that issue, I understood you
1461 to be telling us that it is not, at least in Ontario, the 2 role of the forensic pathologist to express a formal 3 opinion on that issue. 4 DR. MICHAEL POLLANEN: Correct. 5 MS. LINDA ROTHSTEIN: All right. And 6 that, as I understand you, Dr. Pollanen, is a result of 7 our particularly statutory -- particular statutory 8 regime? 9 DR. MICHAEL POLLANEN: Correct. 10 MS. LINDA ROTHSTEIN: Right. Can you 11 assist us, Dr. Pollanen, if that were not the scheme, 12 whether it would be your view that a forensic pathologist 13 has something useful to add to the determination of 14 manner of death? 15 DR. MICHAEL POLLANEN: Yes. Clearly the 16 manner of death determination may, ultimately, derive 17 from elements in the forensic pathology of the case. And 18 on that basis when those circumstances or that 19 contingency occurs, the forensic pathologist isn't 20 probably in the best position to give an opinion about 21 the manner of death and I'll give two (2) examples that 22 would contrast this. 23 One comes from our daily life in forensic 24 pathology, and that is that in many circumstances bodies 25 are brought to us in the criminally suspicious or
1471 homicidal category, and the autopsy is the process which 2 changes its class -- its ultimate classification into a 3 non-criminal event. 4 So in other words, the -- the body may -- 5 may come to the morgue with a established police 6 investigation which is clearly going along on an 7 unnatural track, or at least being considered in that 8 broader scope of unnatural death, and the autopsy 9 demonstrates a clear natural disease that accounts for 10 death. 11 In these circumstances, the forensic 12 pathologist is de facto determining the manner of death 13 and that's extremely useful. 14 Contrast that to, for example, the death 15 of a -- a young man from an overdose of drugs and alcohol 16 where the pathologist performs the autopsy, determines 17 the cause of death as mixed drug intoxication, and then 18 the -- the opinion or the certification of manner of 19 death goes to issues surrounding the greater 20 circumstances of the case and do not flow directly from 21 matters of concern to the forensic pathologist. 22 MS. LINDA ROTHSTEIN: Or more 23 specifically, matters within the expertise of the 24 forensic pathologist, if I hear you correctly? 25 DR. MICHAEL POLLANEN: Well, one could
1481 think of it like that, however, the expertise of the 2 coroner is that of a medical doctor which is similar to 3 the forensic pathologist. So -- 4 MS. LINDA ROTHSTEIN: Right. 5 DR. MICHAEL POLLANEN: -- it's probably 6 not a matter of expertise -- 7 MS. LINDA ROTHSTEIN: Okay. 8 DR. MICHAEL POLLANEN: -- it's more a 9 matter of role. 10 MS. LINDA ROTHSTEIN: Okay. 11 DR. MICHAEL POLLANEN: And I think that - 12 - it would be my view that what we're interested in, in 13 any system of death investigation, independent of statute 14 or administrative structures, is appropriately utilizing 15 the skills and the expertise of the different 16 participants in the death investigation process. 17 I mean, that's ultimately how we want the 18 system to function. 19 MS. LINDA ROTHSTEIN: And so in the ideal 20 system, and we are here to at least spend a little bit of 21 time trying to envisage one. In the ideal system, Dr. 22 Pollanen, would pathologists be permitted in appropriate 23 cases to express opinions on manner of death? 24 DR. MICHAEL POLLANEN: Yes. 25 MS. LINDA ROTHSTEIN: And, indeed, is
1491 that the situation that pertains in other jurisdictions? 2 DR. MICHAEL POLLANEN: Yes. 3 MS. LINDA ROTHSTEIN: Australia, I 4 gather, and even in England, pathologists, from time to 5 time, think it necessary and appropriate to opine not 6 only on cause of death but also manner of death. 7 Am I right? 8 DR. MICHAEL POLLANEN: Well, in most 9 coroner's jurisdictions, that would not be the case. 10 MS. LINDA ROTHSTEIN: All right. 11 DR. MICHAEL POLLANEN: However, in other 12 non-coroner's jurisdictions, it would be the rule. 13 MS. LINDA ROTHSTEIN: Am I mistaken in my 14 understanding of Australia? I didn't think there was 15 anything that prevents them there from expressing 16 opinions on manner of death. 17 DR. MICHAEL POLLANEN: Again, I think 18 that's sort of regionally determined. 19 MS. LINDA ROTHSTEIN: I see. 20 DR. MICHAEL POLLANEN: The point being 21 here that, oftentimes, in other jurisdictions such as the 22 ones that you've indicated, the forensic pathologist is 23 often brought into a case because of a controversy with 24 regard to manner of death, particularly in the second 25 opinion circumstance. The -- the nature of the
1501 controversy may relate to cause of death, but typically 2 it's -- it relates to manner of death. 3 And, in that circumstance, the expert that 4 is sought out to give an expert opinion on the matter is 5 the forensic pathologist. 6 MS. LINDA ROTHSTEIN: In other words, the 7 issue that puts the case in front of the forensic 8 pathologist is, for example, whether it is in fact a 9 homicide? 10 DR. MICHAEL POLLANEN: Correct. 11 MS. LINDA ROTHSTEIN: All right. Well, 12 we'll obviously explore that a bit more as we go, but can 13 we stop for the moment and have you assist the 14 Commissioner, Dr. Pollanen, with what you have taught 15 some of us in this room are the five (5) steps of the 16 autopsy? 17 DR. MICHAEL POLLANEN: The five (5) steps 18 of the medical legal autopsy are: 19 First: Consideration of the scene and 20 history. 21 Second: The external examination of the 22 body. 23 Third: The internal examination of the 24 body or dissection. 25 Fourth: Ancillary testing, which takes a
1511 variety of forms including examination of tissues under 2 the microscope, which we call histology, toxicology, 3 radiology, various ancillary tests. 4 And the fifth step -- and the step, 5 surprisingly, that is often excluded from this analysis - 6 - is the decision-making step -- 7 MS. LINDA ROTHSTEIN: Right. 8 DR. MICHAEL POLLANEN: -- which is -- 9 which is the step in which the forensic pathologist forms 10 an expert opinion, and that does represent an actual 11 discreet step in the process. Of course, it's extended 12 across the other four (4) steps. But the other four (4) 13 steps represent opportunities to obtain data that will 14 then feed into the synthesis or decision-making step. 15 MS. LINDA ROTHSTEIN: All right. Let's 16 go back to number 1 then; consideration of the scene and 17 the circumstances. That, I expect, will be the subject 18 of some discussion as we go through this Inquiry, and the 19 question I have for you at the outset, Dr. Pollanen, is 20 to what extent, in your opinion, is it necessary? 21 To what extent is it appropriate that the 22 forensic pathologist inform himself or herself about all 23 of the circumstances within the police knowledge about 24 this criminally suspicious death or homicide? 25 DR. MICHAEL POLLANEN: One of the myths
1521 that is very difficult to overcome in forensic pathology 2 is the view that the forensic pathologist is presented 3 with the body and then somehow goes through a procedure 4 that magically produces a self-evident answer; that is 5 most definitely not what we do. 6 What is an absolutely critical step along 7 the way is obtaining information about the context of the 8 case. This includes the scene appearance, the medical 9 history including illnesses, medications, the events 10 surrounding the case. These all become very critically 11 important to the point that, in many circumstances, the 12 information is best obtained by the pathologist actually 13 attending the scene. 14 MS. LINDA ROTHSTEIN: Okay. I hear you 15 about that, but what about in a suspicious criminal case 16 -- is it appropriate -- is it necessary for the 17 pathologist to also be informed about the character, the 18 history, the background, the rumours about the suspects? 19 DR. MICHAEL POLLANEN: Well, you're 20 talking about what information that would be considered 21 by me to be more on the prejudicial side as opposed to 22 the set of objective data that would be relevant to the 23 pathologist. 24 Having said that, the pathologists in 25 their -- in their course of their duties, does exercise a
1531 filtration process to the information that -- that comes. 2 For example, we might, in -- in the early part of an 3 investigation, be given information regarding a 4 confession. 5 And that -- most forensic pathologists -- 6 in fact, all forensic pathologists, I would hope -- would 7 recognize that as being the type of information that 8 would not form the objective foundations of their 9 opinion. 10 So, we may get that information, but it's 11 our job to filter that information when it comes to us. 12 Very importantly, as well, we have to realize -- and this 13 is purely on a quantitative basis, this is just straight 14 from the statistics of the matter -- that often times the 15 information that we're provided with is the foundation to 16 direct this type of ancillary testing that we will do at 17 an autopsy. 18 MS. LINDA ROTHSTEIN: Can you give us an 19 example of that? 20 DR. MICHAEL POLLANEN: Well, the best 21 example would be, for example, x-rays. If somebody is 22 shot, by history then we would x-ray the body, whereas, 23 if the -- if the person dies suddenly in bed, we might 24 not; in fact, we probably wouldn't. 25 A certain range of ancillary tests might
1541 include tests that we would not normally think of doing. 2 For example, if somebody dies in the middle of eating 3 their Chinese lunch, and it has shrimp in it, and we 4 don't know to test for anaphylaxis, then we will miss the 5 diagnosis of shrimp allergy, so -- because that -- 6 autopsy findings don't necessarily allow us to conclude 7 directly that there was a shrimp allergy, we need to 8 obtain testing for that. 9 So, these are the -- these are very 10 important issues and so for the pathologist to negotiate 11 the medical legal issues or problems that come, we have 12 to be maximally informed of the information at the onset. 13 And, in my experience, that information often will weigh 14 ultimately against a homicide or criminally suspicious 15 case if the autopsy, you know, goes toward -- in that 16 direction. 17 That -- that information will -- will 18 often provide the basis for the pathologist to move the - 19 - the case out of the homicide or criminally suspicious 20 category. There's a lot more to say about it -- 21 MS. LINDA ROTHSTEIN: Right. 22 DR. MICHAEL POLLANEN: -- but I think 23 that en -- encapsulates it. 24 MS. LINDA ROTHSTEIN: There is -- but 25 let's just finish it off with this. To the extent that
1551 the police, in a criminally suspicious case, communicate 2 to you, the forensic pathologist, information that you 3 think is either irrelevant, or prejudicial, or unhelpful, 4 do you stop them in their tracks or do you just disregard 5 it for the purposes of your investigation? 6 DR. MICHAEL POLLANEN: I think what we 7 would do is we would accept the information that's being 8 given to us and then exercise a professional judgment as 9 to its utility. 10 MS. LINDA ROTHSTEIN: Okay. The external 11 examination; how dependent is that on the precise nature 12 of the case; the scope and nature of that external 13 examination of the body? 14 DR. MICHAEL POLLANEN: Critical. Often 15 the external examination is the data step which allows 16 you to first determine if injuries are present, so it's 17 extremely important. 18 The external examination has really three 19 (3) important elements. The first is detection of -- of 20 injuries, the second is collection of physical evidence, 21 and the third is photography, but it's -- because 22 essentially the entire autopsy process revolves around a 23 core consideration which is the consideration of 24 independent review ability. 25 MS. LINDA ROTHSTEIN: Okay, stop and --
1561 and give that at least a little bit of an explanation. 2 I'm sure that that also will be a recurring theme as we 3 go forward, Dr. Pollanen, but those words may not be 4 known to all. 5 DR. MICHAEL POLLANEN: Independent review 6 ability is very simple. It is -- it is essentially to 7 produce a reviewable record of the case which is linked 8 to the primary data. 9 In other words, this is usually 10 photographs of the body and its changes, preparations of 11 histology, that is microscopic preparations which perform 12 the task of making a permanent record of the tissue 13 alterations, also recording certain test results in the 14 form of, for example, x-ray films that can be, 15 subsequently, reviewed. 16 And this really comes down to the concept 17 that the autopsy is a scientific objective exercise, and 18 one of the important elements of a scientific process is 19 to make the raw data of that process reviewable. It's -- 20 it's a critical point. 21 MS. LINDA ROTHSTEIN: Okay. What are the 22 key elements of the internal examination, the third step 23 in the autopsy? 24 DR. MICHAEL POLLANEN: Well, the key 25 element is comp -- is the extent, and it's the complete
1571 nature of it, most importantly. 2 MS. LINDA ROTHSTEIN: Mm-hm. 3 DR. MICHAEL POLLANEN: That would include 4 the removing and examining the brain, the organs of the 5 neck, chest, abdomen and pelvis. And then in other 6 circumstances, subsequent dissections; for example, if 7 there is evidence of sexual assault or if that's the 8 issue, removing the pelvic organs, the anus, the 9 genitalia. You may remove the spinal cord, remove 10 certain arteries. You may make rather extensive 11 dissection of the soft tissues to look for evidence of 12 bruising. These are the considerations for the internal 13 examination. 14 The internal examination has, generally 15 speaking, two (2) major goals. The first, is to identify 16 evidence of disease and the second is to identify 17 evidence of injury, and other things besides. But in the 18 medical/legal context, those would be the two (2) major 19 issues. 20 MS. LINDA ROTHSTEIN: Okay. Ancillary 21 testing. What are the normal sorts of tests that follow 22 upon the actual autopsy conducted by the pathologist? 23 DR. MICHAEL POLLANEN: The two (2) most 24 common tests would be histology, which is examining 25 tissues under the microscope, and the second would be
1581 toxicology, which is examining blood and other body 2 fluids for drugs, alcohol, poisons. There's a whole 3 additional array of tests that are available to us. 4 And the point to be made about those tests 5 is that critical data often emerges from those tests, but 6 you -- the opportunity to do those tests is determined by 7 the findings at autopsy, and the findings given to you in 8 the history. 9 MS. LINDA ROTHSTEIN: In other words, 10 they can't be obtained, if the initial autopsy is 11 deficient in getting the necessary samples. 12 DR. MICHAEL POLLANEN: Correct. Or if 13 the initial history does not identify the issue that can 14 be dealt with, with testing. 15 MS. LINDA ROTHSTEIN: Drug abuse, 16 whatever it is that may suggest that those sorts of 17 screens are necessary or appropriate. 18 DR. MICHAEL POLLANEN: Correct. 19 MS. LINDA ROTHSTEIN: All right. To what 20 extent, if at all, does the need for the results of the 21 ancillary testing, be it histology or toxicology as the 22 two (2) most common, delay the ability of the forensic 23 pathologist to come to a conclusion about the cause of 24 death? 25 DR. MICHAEL POLLANEN: It may, and we
1591 would -- I would say it like this, that if you consider 2 the first three steps, which is the history, the external 3 and internal examinations, it is often the case that at 4 the end of step 3, the pathologist may be able to give 5 the cause of death. 6 For example, in a gunshot wound to head, 7 perforating the brain, typically we a -- have enough 8 information at the end of step 3 to give the cause of 9 death. If however, the cause of death is not readily 10 apparent at the end of step 3, and there's a -- there's 11 reason to believe sufficient evidence or critical data 12 may come from the ancillary testing, then the cause of 13 death at the time of the post-mortem, will be given as 14 pending. And then, those additional tests will hopefully 15 provide the factual foundation for the answer. 16 Unfortunately, not always, but that is the hope. 17 MS. LINDA ROTHSTEIN: The practice of 18 giving a formulation that is pending -- saying to the 19 police officers in a criminally suspicious case, I can't 20 give you a conclusion, my decision is pending -- is that 21 always the practice in Ontario? Or do you know? 22 DR. MICHAEL POLLANEN: It's had a 23 difficult gestation in Ontario. The whole concept of 24 pending, I would say is now codified -- 25 MS. LINDA ROTHSTEIN: Right.
1601 DR. MICHAEL POLLANEN: -- and that many 2 forensic pathologists understood the significance of that 3 concept. However, it was not universal. 4 MS. LINDA ROTHSTEIN: And it wasn't 5 codified until reasonably recently, if I'm not mistaken, 6 Dr. Pollanen. 7 DR. MICHAEL POLLANEN: Correct. 8 MS. LINDA ROTHSTEIN: All right. Walk us 9 through then, what you say is very much a separate step, 10 but as you've described it, infuses all of the previous 11 four (4), the task of decision making. 12 DR. MICHAEL POLLANEN: Just like to say 13 one more thing about pending -- 14 MS. LINDA ROTHSTEIN: Okay. 15 DR. MICHAEL POLLANEN: -- before we leave 16 that -- 17 MS. LINDA ROTHSTEIN: Okay. 18 DR. MICHAEL POLLANEN: -- and it has to 19 do with step number 5. 20 Sometimes, the cause of death is entirely 21 apparent at the end of step 3. But the forensic 22 pathologist may need to consider other evidence still, to 23 strengthen their conclusion, or make that conclusion 24 tentative by saying the cause of death is pending because 25 additional studies may detract from that conclusion.
1611 So, sometimes the cause of death is given 2 as pending because you don't know, because you -- you 3 lack data. Sometimes the cause of death is given as 4 pending because you need more time to think about the 5 matters, examine the literature, discuss the case with 6 colleagues. 7 So there are -- essentially, there are 8 different types of paths to a pending diagnosis. 9 COMMISSIONER STEPHEN GOUDGE: Where is 10 pending now codified, Dr. Pollanen? 11 DR. MICHAEL POLLANEN: In the guidelines, 12 our 2007 guidelines. 13 MS. LINDA ROTHSTEIN: Which, 14 Commissioner, I can take you to momentarily and I, 15 indeed, had planned to but -- 16 COMMISSIONER STEPHEN GOUDGE: Just do it 17 when you're ready. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Yeah. But so just 21 to go back and actually bring Dr. McLellan a little bit 22 into this conversation. 23 In a situation where the pathologist 24 decides -- because it's a decision -- that his ultimate 25 decision on cause of death is pending, what, if any --
1621 what, if any, preliminary views of it does -- does the 2 pathologist express to the coroner -- the investigating 3 coroner? 4 DR. MICHAEL POLLANEN: Well, I could tell 5 you how I -- how I deal with that issue -- and I think 6 that would represent how many people deal with that issue 7 in the Province of Ontario -- and that is that we engage 8 the coroner in a discussion on the matter. 9 I mean, if the -- if the pending 10 determination is because there's an outstanding 11 toxicology test, but there are empty pill bottles, 12 there's not much of a discussion that's required with the 13 coroner. But in the circumstance where the -- the 14 pending diagnosis is given at the end of autopsy, but it 15 -- you might benefit from having a discussion with the 16 coroner, then, of course, you would discuss the matter 17 with the coroner. 18 The point here being that the coroner is a 19 physician and discussing this -- having a professional 20 exchange between the coroner path -- and the pathologist, 21 is helpful to both. 22 MS. LINDA ROTHSTEIN: Dr. McLellan, I'm 23 wondering if we can call on you just to assist, to the 24 extent you can, about your experience as a coroner with 25 the situations where the forensic pathologist had only
1631 come to a preliminary conclusion or a pending conclusion, 2 what you -- you recall being the prevailing practice, 3 prior to the enunciation of the recent guidelines? 4 DR. BARRY MCLELLAN: At the conclusion of 5 the autopsy, it is important that there's communication 6 between the pathologist and the coroner. The coroner 7 needs to understand what the results are and if there's 8 something outstanding, how long it may take for the 9 further testing to take place. 10 So it is not terribly unusual, now or in 11 the past, for a coroner to be told by the pathologist 12 that at this particular point there's insufficient 13 information. It's appropriate to be waiting for the 14 following testing and that -- that is not something that 15 would concern a coroner. 16 The investigation is often ongoing for 17 many weeks, sometimes months; there's information that 18 one's waiting for such as toxicology. So that -- that's 19 not a concern to a coroner. It's just important that 20 there's communication between the pathologist and the 21 coroner so that it's understood what it's -- what it 22 means in this circumstance and what is outstanding. 23 MS. LINDA ROTHSTEIN: And I think you're 24 both aware that one of the issues that the Commissioner 25 will hear some considerable evidence about is the timing
1641 of taking the conclusion, whatever it is at autopsy, and 2 finally formulating it in an autopsy report. 3 Whose responsibility was it, when you were 4 coming through the coronial system, Dr. McLellan, to 5 ensure that when all the ancillary testing is completed, 6 the autopsy or post-mortem report is prepared in a timely 7 way? 8 Is that the forensic pathologist's job or 9 the investigating coroner's job? 10 DR. BARRY MCLELLAN: Well, it's the 11 responsibility of the pathologist to complete the report 12 when they have all of the information. However, if a 13 coroner is waiting for a report, and either a family 14 member or some other member of the investigation team 15 wonders what the status is, the coroner would then 16 contact the pathologist and find out what's outstanding. 17 But there were circumstances in the past, 18 and there are still circumstances today, where it can 19 take longer for that report to be completed than what's 20 in the best of interest of all in the death investigation 21 system. 22 MS. LINDA ROTHSTEIN: And just so the 23 Commissioner has some kind of a snapshot, if it's 24 possible to take one, of the time it takes to get 25 toxicology reports, in particular, from the Centre of
1651 Forensic Sciences, are there any sort of -- are there any 2 rules of practice, are there any sort of estimates that 3 you can proffer, Dr. McLellan, that would assist the 4 Commissioner in understanding what the norms are? 5 DR. BARRY MCLELLAN: The Centre for 6 Forensic Sciences has tried to have a 90 percent 7 completion within ninety days (90) role, but they have 8 had challenges with respect to their resources, often 9 people, and there is many circumstances where it has 10 taken many months beyond that for reports to come 11 through. 12 Now, we have a constant line of 13 communication open between the Coroner's Office and the 14 Centre of Forensic Sciences; we have met about this many 15 times. But I would say that the most common reason for 16 there to be a delay between a case being completed and 17 what we would expect would be waiting for toxicology 18 results from the Centre. 19 MS. LINDA ROTHSTEIN: Are there any other 20 ancillary tests, because I'm going to -- and I'm going to 21 exclude histology for the moment, Dr. Pollanen, because 22 that, I'm assuming, is pretty much within the control of 23 the forensic pathologist; is that a fair assumption? 24 DR. MICHAEL POLLANEN: No. 25 MS. LINDA ROTHSTEIN: No. Okay, then,
1661 sorry. Help us with that; are there any aspects of the 2 histology that needs to be viewed by the pathologists 3 that are delayed by third parties and how much is that a 4 factor? 5 DR. MICHAEL POLLANEN: Well, it's a major 6 factor. 7 MS. LINDA ROTHSTEIN: Okay. 8 DR. MICHAEL POLLANEN: For example, in 9 the Regional Forensic Pathology Units the laboratory 10 services for histology are, in fact, provided by the 11 hospital and the histology laboratories spend most of 12 their time processing biopsy specimens from living 13 patients, so as a result, and -- and quite properly, 14 there is a -- there is a queue for histology services. 15 So because of this integration of 16 essentially post-mortem histology and surgical pathology 17 histology there may be considerable delays in producing 18 sections for the pathologist. 19 MS. LINDA ROTHSTEIN: Are you able to 20 provide us with some sort of estimate? 21 DR. MICHAEL POLLANEN: Not now, but I 22 certainly can. 23 MS. LINDA ROTHSTEIN: Okay, that would be 24 helpful. And has that been the case for the last decade; 25 has that been an ongoing struggle to get histology for
1671 post-mortems to the pathologist's microscope in a timely 2 way? 3 DR. MICHAEL POLLANEN: Yes. I mean this 4 is because of the pressures of ha -- of essentially 5 running a forensic pathology service which is 6 inextricably linked to a healthcare delivery service, and 7 that is one (1) of our major challenges in forensic 8 pathology in this Province, because the Regional Forensic 9 Pathology Units are defined in hospitals -- 10 COMMISSIONER STEPHEN GOUDGE: All of them 11 are in hospitals, all the regional pathology unit -- 12 forensic pathology units? 13 DR. MICHAEL POLLANEN: Yes. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 DR. MICHAEL POLLANEN: And because of 16 that, the -- the basic resources that go to supporting 17 the Regional Forensic Pathology Units are, ultimately, 18 derived from the hospital. 19 20 CONTINUED MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Okay. So I 22 mistakenly assumed that histology wasn't a problem, but 23 we -- we know -- we now know that it is and we know that 24 toxicology is a problem. 25 Are there any other species of ancillary
1681 testing that are customary in the context of a criminally 2 suspicious case that cause delays, that are problematic? 3 DR. MICHAEL POLLANEN: Not regularly. 4 MS. LINDA ROTHSTEIN: Okay. 5 COMMISSIONER STEPHEN GOUDGE: Is the 6 toxicology all done at the Centre for Forensic Science or 7 is it done at the regional hospitals in most cases? 8 DR. MICHAEL POLLANEN: The -- it's all 9 done at the Centre for Forensic Science. Having said 10 that, in some circumstances where we require expedited 11 testing, usually for alcohol determination, we will send 12 it to a hospi -- hospital laboratory to get a rapid 13 result because the Centre for Forensic Science is not 14 able to -- to provide that for us. 15 The other test that we sometimes will ask 16 for in an expedited manner outside of the centre would be 17 a carbon monoxide level. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: I'm going to ask 21 you to spend some considerable time with us, Dr. 22 Pollanen, on criminally suspicious pediatric deaths, but 23 while we're on the subject of ancillary testing, if I 24 were to ask you the same question, are there a subset of 25 ancillary tests that are necessary in investigating many
1691 criminally suspicious pediatric deaths that are slow to 2 come, in addition to toxicology and the histology, what 3 would your answer be? 4 DR. MICHAEL POLLANEN: I would say that 5 there are, but on a -- on a variable time course. And 6 this again has to do with linkages to the health care 7 system. If you take pediatric forensic pathology as an 8 example, the additional ancillary testings -- testing 9 that's most common would be radiology, and microbiology. 10 Those would be two (2) major tests. Other 11 tests would be metabolic screening tests, which are 12 actually done externally by a private company. And in 13 many organizations the -- the microbiology testing and 14 the radiology testing will be done in the course of 15 normal service delivery. But you are still relying on 16 the hospital infrastructure to provide that. 17 MS. LINDA ROTHSTEIN: So, we walked 18 through at least in very basic terms, the five (5) steps 19 of the autopsy. And I want to now focus a little bit of 20 your attention, Dr. Pollanen, on the preparation of the 21 autopsy report. 22 And have the Commissioner take at look at 23 -- at least the guidelines that have more recently been 24 put in place, the Guidelines for Autopsy Practice for 25 Forensic Pathologist, July 2005, Commissioner, and
1701 doctors at Tab 11. 2 Mr. Registrar, may we please have 033981. 3 And, Dr. Pollanen, you obviously, as we 4 can tell, if we go to the second page of that document 5 please, 2007 Registrar, had a hand in the creation of 6 these guidelines? 7 DR. MICHAEL POLLANEN: Yes. 8 MS. LINDA ROTHSTEIN: Can you tell us a 9 little bit about how they came about? 10 DR. MICHAEL POLLANEN: These are 11 guidelines for autopsy practice for forensic 12 pathologists, and the -- there are essentially two (2) 13 main forces that resulted in these guidelines. 14 The first was, essentially, a global trend 15 in laboratory medicine in general to specify guidelines, 16 performance standards, other standards of practice to 17 increase quality of work; that's the -- the first major 18 factor. And those factors essentially are applicable to 19 all spheres of laboratory medicine, not just forensic 20 pathology. 21 And the second is that in the -- in our 22 organization, there has been a commitment to quality 23 process through death investigation and in autopsy work. 24 And there's quite a history of that, and I 25 won't get into it right now, but to say that this
1711 represents the -- the next step in the evolution of that 2 -- those quality processes. 3 And one of the tasks that I first 4 identified when I was appointed as a Director of the 5 Toronto Forensic Pathology Unit was to codify guidelines. 6 MS. LINDA ROTHSTEIN: Right. 7 DR. MICHAEL POLLANEN: And these were -- 8 these were meant to be guidelines for not only Toronto, 9 but for the province at large. 10 MS. LINDA ROTHSTEIN: And -- 11 COMMISSIONER STEPHEN GOUDGE: And there 12 was nothing before you did this? 13 DR. MICHAEL POLLANEN: There were 14 memoranda from our office that gave advice to 15 pathologists on performing certain aspects of the post- 16 mortem examination. And in 1995, there was an autopsy 17 guideline for sudden infant syndrome autopsies. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Which we'll come 21 to, Commissioner. 22 So, Dr. Pollanen, because you were seeking 23 to apply these throughout the province, as I read page 2, 24 you sought input on their contents from the various 25 regional pathology units and their directors, is that
1721 right? 2 DR. MICHAEL POLLANEN: Yes. 3 MS. LINDA ROTHSTEIN: Right. And if you 4 could turn up page 39 of that same document, Registrar, 5 that deals with the autopsy report as does -- I should 6 say, Dr. Pollanen, page 31 -- actually 31 I suppose is 7 the more generic, is it? 8 DR. MICHAEL POLLANEN: Page 31, is in 9 relation to death during restraint. 10 MS. LINDA ROTHSTEIN: Okay. So you -- 11 what you've done is you've broken down the precise 12 guidelines for the autopsy report dependent upon the 13 nature of the death; is that how I understand it? 14 DR. MICHAEL POLLANEN: Yes. In the first 15 edition that's the way the -- we did that. In the second 16 edition, we have essentially collated that together in 17 one (1) section. 18 MS. LINDA ROTHSTEIN: All right. But 19 looking, for example, at page 32, if we can go back to 20 that, subparagraph 30.4, you say: 21 "The cause of death provided by the 22 forensic pathologist should be 23 explained in the autopsy report." 24 And stopping there, am I right, Dr. 25 Pollanen, that what you're contemplating is not just a
1731 determination or conclusion with respect to cause of 2 death but also the reasoning process by which that 3 conclusion is derived? 4 DR. MICHAEL POLLANEN: Step 5. 5 Essentially providing the reader with a understanding of 6 the analytical process, the evidence base, the logic 7 behind the opinion. 8 MS. LINDA ROTHSTEIN: Now, Dr. Pollanen, 9 you weren't in charge of a forensic pathology unit in the 10 '90s and you had some role at some stage doing them but 11 are you able to assist at all - because I have the sense 12 that you've looked at many, many reports, even 13 historically - as to whether that format, providing 14 reasoning process in addition to the conclusion on cause 15 of death was the norm in Ontario? 16 DR. MICHAEL POLLANEN: It was not. 17 MS. LINDA ROTHSTEIN: And so if we see in 18 the course of this Inquiry that there are many autopsy 19 reports from a range of forensic pathologists that 20 express a conclusion with little, if any, reasoning or 21 commentary, you would say that was typical? 22 DR. MICHAEL POLLANEN: Yes, I would say 23 that it was typical. I would also say that there were -- 24 there would be notable exceptions to that. 25 There are some pathologists that,
1741 independent of guidelines, always reproduced a narrative 2 opinion in their reports, but it would be fair to say 3 that, generally, or the most common practice would not be 4 to do so. 5 MS. LINDA ROTHSTEIN: Right. 6 COMMISSIONER STEPHEN GOUDGE: When you 7 say "narrative," Dr. Pollanen, you mean not just the 8 facts that lead to the opinion but the reasoning process? 9 DR. MICHAEL POLLANEN: Yes. 10 11 CONTINUED BY MS. ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: And why is that so 13 very important? 14 DR. MICHAEL POLLANEN: Well, it's 15 important for so many reasons. 16 The most important reason is that it 17 embodies an evidence-based approach and that is one (1) 18 of the other major cornerstones in modern forensic 19 pathology. The first being independent reviewability and 20 the second being the evidence-based approach. 21 And the evidence-based approach is with 22 reference to primary data from the first four steps of 23 the autopsy and in reference to the foundations that are 24 present in the medical literature and the use of logic to 25 arrive at an opinion in a fashion that can be explained
1751 in -- in a step-wise progression in the autopsy report, 2 ultimately, culminating in your final determination on 3 the forensically-relevant issues. 4 The forensic -- forensically-relevant 5 issues are usually the cause of death but need not be 6 simply the cause of death. It may, for example, be time 7 of death which is -- benefits from an evidence-based 8 approach as well, and other things. 9 MS. LINDA ROTHSTEIN: Circumstances of 10 the death? 11 DR. MICHAEL POLLANEN: Yes, the -- the 12 forensic pathologist may be in -- in many cases, in a 13 unique position to be able to offer a reconstruction of, 14 for example, how injuries occurred and that may flow from 15 this type of evidence-based analysis. 16 MS. LINDA ROTHSTEIN: In other words, the 17 extent to which a particular injury was incurred in self- 18 defence or not, for example? 19 DR. MICHAEL POLLANEN: For example. 20 The other major importance of this 21 opinion, this expert opinion, that is evidence-based is 22 that it provides the consumers of our product as it were, 23 which is the criminal justice system in many 24 circumstances, a transparent analysis or a transparent 25 depiction of our opinion. And that is often very helpful
1761 to both the prosecution and the defence. 2 COMMISSIONER STEPHEN GOUDGE: When you 3 use the term "evidence based," Dr. Pollanen, are you 4 referring just to the facts derived from the earlier 5 steps in the autopsy, or are you also referring to 6 learned journals and what they may say about how one 7 interprets data? 8 DR. MICHAEL POLLANEN: They both form 9 critical elements in an evidence-based opinion. The 10 first is defining high quality, reviewable facts that 11 emerge from the autopsy. 12 And then using logic reason, but also 13 anchored in the evidence base provided by the peer 14 reviewed medical literature to extract value from -- from 15 the literature and use it to interpret your findings. 16 And then make your interpretations 17 transparent in the autopsy report. This is the -- this 18 is the critical step in -- in giving opinions -- expert 19 opinions in forensic pathology. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: And when did 23 forensic pathologists first start to be so insistent that 24 evidence-based conclusions inform their opinions? 25 DR. MICHAEL POLLANEN: It has a very long
1771 history. Suffice it to say, the classical approach to 2 forensic pathology and expert opinion formation is, in 3 part, actually derived by the way the criminal justice 4 system works, but represents two (2) contrasting 5 approaches that are not mutually exclusive but -- but are 6 sufficiently different that they contrast one another. 7 The first was the traditional approach to 8 expert witness testimony which was the traditional 9 approach, which is, opinion from authority; the in-my- 10 experience approach to forensic pathology. 11 Which admittedly may have value. There's 12 no -- there's no question in that, but that was the more 13 classical, time honoured and, in fact, legally preferred 14 in many circumstances approach to giving expert witness 15 testimony; based upon the authoritive experience of a 16 witness of great experience. 17 MS. LINDA ROTHSTEIN: When you say, 18 "legally preferred", do you mean it found receptiveness 19 in courtrooms? 20 DR. MICHAEL POLLANEN: Yes. Often -- 21 often sought after by both prosecution and defence. 22 MS. LINDA ROTHSTEIN: Okay. 23 DR. MICHAEL POLLANEN: And then this is 24 in contrast to the evidence-based approach. 25 Now the differentiation is somewhat
1781 artificial because, clearly, experience informs the 2 evidence-based approach as well. 3 But the evidence-based approach has the 4 characteristics that I've indicated and adds an 5 additional dimension in the criminal justice system. And 6 the interesting dimension is that the evidence-based 7 approach is very compatible with cross-examination for 8 example; whereas the traditional-authoritive approach is 9 sometimes quite refractory to cross-examination. 10 And you might -- you might wonder why a 11 forensic pathologist would contemplate those matters so 12 deeply, but one of our important tasks in the criminal 13 justice system is communication. 14 And how we communicate our findings, and 15 to what extent we make transparent our level of certainty 16 is extremely important. 17 MS. LINDA ROTHSTEIN: Well we're going to 18 come back to those themes, I expect in some detail, but 19 if I can just ask you to turn to paragraph 30.4 again, 20 it's written there, 21 "that if a cause of death can not be 22 concluded, the cause of death should be 23 listed as unascertained." 24 I think the other language we've heard is 25 undetermined? Is that the same, Dr. Pollanen?
1791 DR. MICHAEL POLLANEN: Yes. 2 MS. LINDA ROTHSTEIN: All right. 3 "If the cause of death can not be 4 concluded, then the forensic 5 pathologist should indicate why this is 6 the opinion offered." 7 So what I take from that, Dr. Pollanen, 8 correct me if I'm wrong, is that it's just as important 9 where the forensic pathologist can not give a cause of 10 death, can not exclude natural causes, but can not 11 conclude for example, homicidal ones, that he or she 12 provide again, the reasoned exposition for that 13 conclusion? 14 DR. MICHAEL POLLANEN: Often quite 15 critical. The obscure autopsy, which results usually in 16 the conclusion of cause of death un-ascertained, is a 17 very difficult issue for the forensic pathologist and -- 18 MS. LINDA ROTHSTEIN: Is that known as 19 the negative autopsy, as well? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. LINDA ROTHSTEIN: Okay. 22 DR. MICHAEL POLLANEN: The negative 23 autopsy, obscure autopsy, resulting in the conclusion of 24 un-ascertained is extremely challenging because it does 25 not mean to imply that the autopsy may not have produced
1801 medical legally relevant information; that may be 2 relevant to other aspects of the case, but are sufficient 3 in and of themselves to arrive at the cause of death. 4 And again, it's this engagement in the 5 evidence-based system of accepting there are limits to 6 knowledge and limits to data sets. 7 MS. LINDA ROTHSTEIN: Dr. Pollanen, I 8 gather that these guidelines have been updated in a new 9 edition for 2007. 10 COMMISSIONER STEPHEN GOUDGE: Hot off the 11 press. 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: Hot off the press. 15 And that we don't have a tab yet, but I can tell all 16 counsel that the PFP number is 139350, is that what Ms. 17 Hogan is handing out? I'm not sure. 18 In any event, Dr. Pollanen, I gather there 19 has been a new edition as of this year? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. LINDA ROTHSTEIN: And briefly 22 describe what are the changes in the '07 edition that we 23 ought to be mindful of. 24 DR. MICHAEL POLLANEN: There are three 25 (3) major additions in the second edition; the first is
1811 the incorporation of guidelines for autopsy practice in 2 suspicious or homicidal deaths of infants and children 3 which, in fact, was a separate guideline which has been 4 incorporated into this document. 5 There is a policy statement and an 6 explanation about how we have modified our quality 7 processes surrounding autopsies and autopsy reports and 8 an expanded discussion on the issues of communication. 9 MS. LINDA ROTHSTEIN: All right, so, Dr. 10 McLellan, you receive, as the coroner conducting an 11 investigation, the post-mortem or autopsy report from the 12 Forensic Pathologist, what then is the next step for the 13 Coroner in conducting this investigation into a 14 criminally suspicious death? 15 DR. BARRY MCLELLAN: Well, that report 16 would included with the totality of all of the 17 information with a case that's criminally suspicious or - 18 - or concluded at that point, to be a homicide. The 19 investigation is left open until any criminal proceedings 20 are complete, so, the Coroner would, at that point, 21 submit an investigation report with the understanding 22 that the investigation would not be completed until any 23 criminal proceedings were over. 24 MS. LINDA ROTHSTEIN: So, the Coroner 25 would conclude that the manner of death was homicide and
1821 keep the file open? 2 DR. BARRY MCLELLAN: Yes, provided again, 3 that was the -- the conclusion reached by the pathologist 4 as far as cause of death and it was consistent with the 5 rest of the investigation, yes. 6 MS. LINDA ROTHSTEIN: And in those 7 situations, am I also right in thinking that any 8 discussion of an inquest is also put on hold, pending the 9 outcome of the criminal investigation? 10 DR. BARRY MCLELLAN: That's right, an 11 inquest is not held until any criminal proceedings are 12 complete. 13 MS. LINDA ROTHSTEIN: And so at that 14 stage does the coroner more or less step out of the 15 process and let the police and others shepherd the case 16 through the criminal justice system, is that -- is that 17 how it works? 18 DR. BARRY MCLELLAN: I would say it would 19 depend upon the specific case. Most commonly, from that 20 point forward, the coroner would not have direct 21 involvement. It may be, however, that in a particular 22 complex case there may be a need for a case conference 23 where the various members of the team would come together 24 and the coroner may very well call team members together 25 in order to discuss the findings to determine whether or
1831 not anything further needs to be done, but that's not the 2 most common situation. 3 MS. LINDA ROTHSTEIN: Can you give us an 4 example of where a case conference would be needed at 5 that stage that the coroner would orchestrate? 6 DR. BARRY MCLELLAN: Maybe just to back 7 up a little bit and talk about case conferencing in 8 general terms -- 9 MS. LINDA ROTHSTEIN: Sure. 10 DR. BARRY MCLELLAN: -- because case 11 conferences have been recognised for many years in our 12 system as providing a number of advantages. 13 One of the changes in recent years has 14 been to hold case conferences early on following a -- a 15 death where it's felt to be criminally suspicious or 16 homicide; that's to ensure that all of the members of the 17 team understand what is known and what is not known at 18 that time to make it clear what's outstanding. 19 These will frequently, but not always, 20 involve the pathologist, again, it will be -- it will be 21 dependent upon the case. 22 It is sometimes then appropriate once the 23 autopsy report has been completed to bring the members of 24 the investigation team together again. The early case 25 conferences is what's proven to be most important; later
1841 case conferences are dependent upon the individual case. 2 MS. LINDA ROTHSTEIN: Right. So can you 3 assist us then, Dr. McLellan, do coroners ever go to 4 court? 5 DR. BARRY MCLELLAN: Rarely do coroners 6 go to court but they do on occasion. 7 MS. LINDA ROTHSTEIN: But certainly they 8 do not go to court to express opinions on either cause of 9 death or mechanism of death or any of those features; is 10 that a fair conclusion? 11 DR. BARRY MCLELLAN: I would say it's 12 extremely rare. It has been done in the past but that 13 is, going back to the team concept, the role that the 14 forensic pathologist would fulfill. 15 MS. LINDA ROTHSTEIN: And in general, 16 would it be your view that the participation of the 17 coroner in the trial or the preliminary inquiry should be 18 discouraged, that is to say, as a witness? 19 DR. BARRY MCLELLAN: Well, again, the 20 coroner is not to be advancing a criminal investigation. 21 It may be that there was some observation that a coroner 22 made that was unique where there may be some evidence 23 that is -- that is called upon to advance the criminal 24 proceeding, but the coroner's investigation is not to be 25 advancing the criminal investigation. So it's very rare
1851 for coroners to be involved. 2 MS. LINDA ROTHSTEIN: Okay. Now I want 3 to step back from criminally suspicious for a moment and 4 talk about one (1) aspect of the coroner's work that may 5 be different in those cases from the majority of the 6 investigations that are conducted; I want to talk about 7 communication with the family. 8 As I understand it, Dr. McLellan, that is 9 one (1) of the key roles of the coroner in our system. 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: And so let's leave 12 aside for the moment the subset of cases in which there 13 is some suspicion of criminal activity or foul-play and 14 talk about the other cases. 15 Can you describe for the Commissioner the 16 kind of relationship that the investigating coroner has 17 with the family and the various points at which they are 18 informed about the pro -- progress of the investigation. 19 DR. BARRY MCLELLAN: So in general terms, 20 not dealing with the specific circumstances of a homicide 21 or criminally -- 22 MS. LINDA ROTHSTEIN: Right. 23 DR. BARRY MCLELLAN: -- suspicious case, 24 it's -- 25 MS. LINDA ROTHSTEIN: Let's start with
1861 the easy case, if we can. 2 DR. BARRY MCLELLAN: Right. It's 3 important that the coroner communicate with family as 4 soon as possible. 5 Now it is extremely variable. In certain 6 circumstances a coroner may go to a hospital some hours 7 after a death and have difficulty finding family. It may 8 be that in some remote locations it's difficult for a 9 family member to be contacted. 10 In certain circumstances, the family do 11 not wish to discuss the death at that particular time. 12 But in general terms, coroners should, whenever possible, 13 communicate with the family as soon as possible; it's 14 particularly important if an autopsy is going to be 15 ordered. 16 And then throughout the investigation to 17 ensure that if family members are looking for 18 information, that they know how to get in contact with 19 the coroner to obtain that information. 20 Now the reason it is variable is that in 21 certain circumstances families do not wish to have 22 ongoing communication with the coroner, but the 23 opportunity for families to communicate with the coroner 24 should always be open. 25 MS. LINDA ROTHSTEIN: What about the
1871 results of the post-mortem examination, the autopsy 2 report; how is communication about that ordinarily done? 3 DR. BARRY MCLELLAN: At the time that an 4 autopsy is ordered, the coroner will, whenever possible, 5 offer to provide that information to the family, and 6 should they wish to have the information it could be done 7 orally. Or families are entitled, per Section 18(2) of 8 the Coroners Act, to receive a copy of the coroner's 9 investigation statement and the autopsy at the completion 10 of an investigation. 11 MS. LINDA ROTHSTEIN: So now tell us if 12 you will, Dr. McLellan, about one -- how one, as an 13 investigating coroner, handles communication with a 14 family that is itself suspected of causing the death. 15 DR. BARRY MCLELLAN: Well -- and I can 16 even be more -- 17 MS. LINDA ROTHSTEIN: One (1) or more 18 members 19 DR. BARRY MCLELLAN: -- I can even be more 20 general and say that whether or not the family member, 21 based on information the coroner may have received is 22 involved or not, that in such circumstances, the coroner 23 is to communicate with the Regional Supervising Coroner. 24 And it is left to that individual, or a deputy or the 25 Chief, to have any communication where appropriate.
1881 And in almost all such circumstances, 2 ongoing communication is left to the police. And the 3 concern is that we do not want a coroner, with the best 4 of intentions, to be potentially interfering with aspects 5 of a criminal investigation, most of which they would not 6 be aware of. 7 So, with the best of intentions in trying 8 to keep family updated as to the status of the coroner's 9 investigation, it could be that the coroner would be 10 interfering with a parallel criminal investigation. 11 So, it's in these circumstances where 12 there is less communication and where communication is 13 usually left to the police. 14 MS. LINDA ROTHSTEIN: Okay. And in 15 situations where members of the family are suspected of 16 having had a hand in the death of the person who is being 17 -- whose death is being investigated, do those persons 18 get the same opportunity to see the post-mortem report? 19 DR. BARRY MCLELLAN: Well, no. In any 20 circumstance where it is a criminally suspicious case or 21 a homicide, release of reports -- which I indicated 22 before is done through Section 18(2) -- would not be done 23 until the completion of the investigation; that means the 24 completion of any criminal proceedings, going back to 25 what I mentioned a few minutes ago.
1891 MS. LINDA ROTHSTEIN: Right. So by 2 virtue of the fact that the investigation is put on hold 3 for a period of time and not completed until the outcome 4 of the criminal proceedings, the post-mortem report is 5 not made available in those circumstances. 6 DR. BARRY MCLELLAN: Yes, that's correct. 7 And this is something that can be very frustrating for 8 family members. And -- but that is our policy and, 9 again, the documents are not released until the 10 completion of the criminal investigation. 11 MS. LINDA ROTHSTEIN: And the reasons for 12 your policy? 13 DR. BARRY MCLELLAN: Well, once again, we 14 don't want to have release of documents to family members 15 interfere in any way with the administration of justice. 16 You give an example where a family member is thought to 17 have potentially have been involved. It may be that it's 18 very clear that family members are not involved at all, 19 but if they happen to receive a report and release that 20 information, it could well interfere with the 21 administration of justice. 22 MS. LINDA ROTHSTEIN: And under the 23 system in Ontario, does the pathologist play any role at 24 all in communicating with family members about the 25 forensic pathology work that he or she has undertaken?
1901 DR. BARRY MCLELLAN: It would be very 2 unusual. The communication is almost always through the 3 coroner. There have been circumstances that I've been 4 involved with myself where there's a very specialized 5 piece of information that is best relayed by having a 6 pathologist participate in that communication. 7 In the circumstances I've been involved 8 with, the coroner has participated at the same time. But 9 coroners do rarely communicate, but by far more common, 10 it is the coroner who is responsible for that 11 communication with families. 12 DR. LINDA ROTHSTEIN: All right. So, if 13 I can ask both of you now to focus even on a smaller 14 subset of cases. So we've gone from all of the coroner's 15 investigations; some seven thousand (7,000) a year, or 16 rather -- yeah, twenty thousand (20,000) a year to the 17 seven thousand (7,000) in which there's post-mortem 18 examinations, to the smaller subset in which they're 19 criminally suspicious, and, now, the smallest subset, for 20 our purposes, of the criminally suspicious deaths 21 involving children. 22 And, first of all, is there a way that the 23 Coroner's Office categorizes pediatric deaths? Is there 24 an age benchmark that we should all be using when we look 25 at these statistics or are there various ways for various
1911 purposes? 2 DR. BARRY MCLENNAN: In general terms, we 3 now look at deaths under the age of five (5) years as 4 falling into a category where we have a standardized 5 approach to the investigation which is very thorough and 6 comprehensive. And I don't mean to suggest that the 7 investigation into a six (6) year old is not, but this is 8 consistently applied to the entire group under the age of 9 five (5). 10 So, historically, if I can go back to 11 1995, the Coroner's Office developed and released a 12 protocol to be used at that time for deaths under the age 13 of two (2) years. 14 And this was a protocol that was to be 15 followed by coroners, by police, and included a 16 standardized autopsy examination. And it was one of the 17 most important measures introduced through the office to 18 enhance the quality of those investigations. 19 MS. LINDA ROTHSTEIN: And is that them 20 memo known as Memo 631, Dr. McLellan? 21 DR. BARRY MCLELLAN: It may well be. I - 22 - I can't say I know the number off hand -- 23 MS. LINDA ROTHSTEIN: Okay. 24 DR. BARRY MCLELLAN: -- but if you were 25 to draw my attention to it --
1921 MS. LINDA ROTHSTEIN: But is it the 2 protocol for the investigation of sudden and unexpected 3 deaths in children under two (2), or for all children? 4 DR. BARRY MCLELLAN: It is for children 5 under two (2). 6 MS. LINDA ROTHSTEIN: Okay. So I will 7 find that for you. You can continue. 8 DR. BARRY MCLELLAN: Now, with time, the 9 protocol was extended to the age of five (5) years, and 10 the reason for that was that there's not a large number 11 of deaths between the ages of two (2) and five (5). And, 12 in reviewing a number of them, it was felt that we would 13 benefit by having the same thoroughness applied to the 14 entire group, right up and to the age of five (5). 15 So, more recently, a protocol has been 16 released and it now includes all children up to the age 17 of five (5). 18 COMMISSIONER STEPHEN GOUDGE: When was it 19 extended to five (5), Dr. McLellan? 20 DR. BARRY MCLELLAN: It's within the last 21 year, and I'm sure Ms. Rothstein can bring my attention-- 22 MS. LINDA ROTHSTEIN: I can find that for 23 you, Commissioner, in a moment. 24 DR. BARRY MCLELLAN: Dr. Pollanen is in 25 fact helping me here --
1931 MS. LINDA ROTHSTEIN: It's April -- the 2 April -- 3 DR. BARRY MCLELLAN: October of 2006. 4 COMMISSIONER STEPHEN GOUDGE: Thank you. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Now, that's 8 helpful. But before we look at the specific protocols, 9 Dr. Pollanen, I though it would be helpful if you could 10 help us sketch out some of the particular challenges that 11 encumber investigations of young children's death. 12 So, particularly, let's start with the 13 infants. Whether we define them as one (1) or two (2) 14 years of age, one of the things that many of us have 15 heard spoken of, but have very little real understanding 16 of is SID, Sudden Infant Death Syndrome. 17 Can you help us with the definition of 18 that and some understanding of how -- how far medicine 19 has come in understanding that particular syndrome? 20 DR. MICHAEL POLLANEN: It's a very long 21 topic that I will abbreviate. I'll do my best to 22 abbreviate it. Sudden Infant Death Syndrome, or SIDS, is 23 the -- is an enigma in forensic pathology. 24 And it has a very long and complicated 25 history in forensic medicine. But, currently, we had --
1941 we view SIDS as the unexplained death of an infant less 2 then one -- usually less then nine (9) months, but less 3 then one -- in which the cause of death is unascertained 4 after a comprehensive post-mortem examination and death 5 investigation which includes all of the ancillary tests 6 that are appropriate in -- in the -- in that age group: 7 x-rays, metabolic screening, histology, toxicology, scene 8 investigation, et cetera. 9 It is a determination by convention as 10 really rather then a determination that's dep -- that 11 flows from a discreet science. In other words, we 12 recognize there are some cases of -- of people who die, 13 in which they will have a negative autopsy, but you may 14 do certain special tests, and -- and, therefore, 15 ascertain their cause of death through special testing. 16 But in the case of SIDS, we don't have the 17 test or the group of tests that will ultimately define 18 how these children die. So it is a -- it's a -- it's a 19 major source of frustration for forensic pathologists; a 20 major source of grief for families, because they lack 21 knowledge about what their infant has died of. 22 It's a major area of research, not only in 23 forensic pathology, but in other aspects of medicine such 24 as molecular biology, and it really does represent a -- 25 what has been come to be known in medicine, a diagnosis
1951 of exclusion. 2 So in other words, when you have a child 3 less then one (1) and you have exhaustively gone through 4 an autopsy examination and the cause of death is 5 unascertained, there is a -- there's a view that those 6 cases could be determined to be SIDS. 7 COMMISSIONER STEPHEN GOUDGE: Why was 8 that developed for children under one (1), but where a 9 death is unascertained for an older child, you don't use 10 the same label? 11 DR. MICHAEL POLLANEN: Well, there -- 12 there are subtle reasons for it; the first is 13 epidemiological. When you look at the incidents of death 14 in infancy and in childhood, there is a very large peak 15 less than one (1), so it's a -- it is a homogeneous 16 entity in terms of its descriptive statistics. 17 In other words, if you look, for example, 18 at the frequency of child death in the three (3) to four 19 (4) or three (3) to six (6) age range, it's extremely 20 unusual to have children die in that circumstance for any 21 reason. But when you -- when you graph the infant 22 deaths, you'll find this large set less than one (1), and 23 in -- in this sort of epidemiological definition was part 24 of the reason to -- to define SIDS. 25 The other sort of compelling view that
1961 SIDS is a discreet entity is the result of the -- what's 2 called the Back to Sleep Campaign, which is an 3 epidemiological association of SIDS occurring on babies 4 that slept on their front. 5 And then when public awareness and public 6 health initiatives resulted in advice to put the babies 7 sleeping on their backs -- Back to Sleep Campaign -- the 8 incidents of SIDS decreased. 9 So it's -- it's for these reasons that it 10 is a homogeneous and well-recognised entity in terms of 11 its descriptive statistics, but, to this point, entirely 12 refractory to medical understanding of why it occurs or 13 how it occurs. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: So, is it fair to 17 think of a classic presentation for SIDS -- child 18 sleeping, child in a cot -- are all -- are all those 19 things the subject of newspaper stories, but not science? 20 DR. MICHAEL POLLANEN: Well, I think the 21 best we could say is that there are certain inclusion and 22 exclusion criteria. And the inclusion criteria would be 23 less than one (1) year of age -- mostly less than nine 24 (9) months; epidemiologically more likely to be male than 25 female, more likely to be sleeping on the front than on
1971 the back, some association with prematurity, some 2 association with smoking. 3 And then, in addition, because by 4 convention it's a diagnosis of exclusion, you have to 5 demonstrate the absence of certain things and this 6 includes, for example, fractures -- multiple 7 healed/healing fractures -- which are common pattern in 8 child abuse, need to be demonstrably absent. 9 And this -- these exclusionary criteria -- 10 I could go through many of them -- form the basis of the 11 1995 protocol that was issued by our office. And I'll -- 12 I'll tell you that that -- that did represent a very 13 important contribution to the investigation of infant 14 death in this province, because it was a recognition for 15 the first time that there needed to be an organized 16 response to this -- this unique entity. 17 MS. LINDA ROTHSTEIN: And, Commissioner, 18 if you now turn up the Coroner's Manual, I believe that 19 this protocol that you're referring to, Dr. Pollanen, can 20 be found as memorandum 631 at page 349 of that manual. 21 I'm using, what we call, the begdot (phonetic) numbers at 22 the very top of the page. 23 COMMISSIONER STEPHEN GOUDGE: Yes. 24 MS. LINDA ROTHSTEIN: And so -- 25 COMMISSIONER STEPHEN GOUDGE: Give me the
1981 number, again. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: For you, Registrar, 5 the number is 057584. And, Commissioner, the page number 6 is 349; it's about half way through. Great, now can you 7 turn to page 349, Registrar, please, of that same 8 document. 9 If you look at your screen, Dr. Pollanen, 10 is that the right document? 11 DR. MICHAEL POLLANEN: Yes. 12 MS. LINDA ROTHSTEIN: All right. 13 Terrific. So the computer beats us. So this came into 14 effect in April of 1995 and, as you say, is very 15 important. When this came to -- into effect in Ontario, 16 am I right in understanding from looking at the preamble, 17 that many jurisdictions all over the world were 18 struggling with these deaths? 19 DR. MICHAEL POLLANEN: Yes. And I -- I 20 think it would be fair to say that this represented one 21 of the very early efforts, in a -- in an organized death 22 investigation system, to deal with that issue. 23 MS. LINDA ROTHSTEIN: And turning, first 24 of all, to the definition. Is the definition still one 25 that you would accept as a forensic pathology today -- a
1991 forensic pathologist today? 2 DR. MICHAEL POLLANEN: Essentially. 3 MS. LINDA ROTHSTEIN: All right. You 4 might modify the language slightly, but the -- the 5 language: 6 "Sudden infant death syndrome is 7 defined as the sudden death of an 8 infant under one (1) year of age which 9 remains unexplained after a thorough 10 case investigation which must include a 11 complete autopsy examination of the 12 death scene, a police investigation and 13 a review of the clinical history." 14 That's still a workable definition, is it? 15 DR. MICHAEL POLLANEN: Yes. 16 COMMISSIONER STEPHEN GOUDGE: Why doesn't 17 the title at the top of the page say 'under two (2) 18 years'? 19 DR. MICHAEL POLLANEN: I think the -- the 20 issue here was that the SIDS was -- is defined "less than 21 one (1) year" -- 22 COMMISSIONER STEPHEN GOUDGE: Yes. 23 DR. MICHAEL POLLANEN: -- but that there 24 are infant deaths in the, sort of, greater than one (1) 25 year category that form the outer edge of the frequency
2001 distribution or curve. 2 COMMISSIONER STEPHEN GOUDGE: To which 3 you would apply the same investigatory protocol? 4 DR. MICHAEL POLLANEN: Correct. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: So, Dr. McLellan, 8 if I understood what you were telling us, you were saying 9 this protocol applies for any sudden death under the age 10 of two (2), and not to -- what would be narrowly defined 11 as a SIDS death. 12 Have I fairly put that? 13 DR. BARRY MCLELLAN: Correct. At that 14 time, deaths under two (2), and now all deaths under five 15 (5). 16 MS. LINDA ROTHSTEIN: And when you use 17 the word "all", is it all deaths under five (5), or the 18 sudden and unexpected deaths under five (5) in which this 19 protocol would pertain? 20 DR. BARRY MCLELLAN: It -- it doesn't 21 apply to all -- there may be some very unique 22 circumstances -- but it applies to, by far, most. 23 MS. LINDA ROTHSTEIN: And so, too, should 24 be understand for the deaths of children under two (2) 25 years of age at this time -- in 1995?
2011 DR. BARRY MCLELLAN: Correct. 2 MS. LINDA ROTHSTEIN: All right. Okay, 3 Mr. Commissioner, it's -- I want to take both Dr. 4 Pollanen and Dr. McLellan through certain aspects of this 5 document, but before I do that, I'd propose that we take 6 a slightly earlier than scheduled afternoon break if 7 that's okay with you. 8 COMMISSIONER STEPHEN GOUDGE: That is 9 fine. So we will rise now until 3:30. Thank you. 10 11 --- Upon recessing at 3:13 p.m. 12 --- Upon resuming at 3:29 p.m. 13 14 COMMISSIONER STEPHEN GOUDGE: Ms. 15 Rothstein...? 16 17 CONTINUED BY MS. ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: Thank you, 19 Commissioner. 20 So dealing with this protocol for the 21 investigation of sudden and unexpected deaths in children 22 under two (2) years of age, we dealt with the definition. 23 We've touched on the issues that created 24 the need for this protocol, that are -- Dr. McLellan 25 outlined at the bottom of that first page -- the concern
2021 that autopsies weren't being done enough of the times, 2 skeletal X-rays not being done, toxicology not being done 3 and so on. 4 And I take it that those concerns were 5 concerns that were present in Ontario as well? 6 DR. BARRY MCLELLAN: Yes, they -- they 7 were concerns. Now, in fairness, I wasn't the one who 8 was in the position to be addressing the concerns but, 9 yes, I do know, in retrospect, they were. 10 MS. LINDA ROTHSTEIN: Right. And as I 11 understand it, Dr. McLellan, this was one of the first 12 protocols put in writing which emphasized the importance 13 of teamwork; something that you have been very careful to 14 underline in your testimony. 15 DR. BARRY MCLELLAN: Yes. 16 MS. LINDA ROTHSTEIN: Can you -- can you 17 provide the Commissioner with the perspective of an 18 investigating coroner, and the need for bringing together 19 so many other persons in conducting these very sensitive 20 investigations? 21 DR. BARRY MCLELLAN: Well, it -- it's 22 certainly outlined on page 352, or page 2 of the 23 protocol, that teamwork is essential in these 24 investigations, and outlines who the members of that team 25 should be.
2031 And, in this particular case, that 2 includes the radiologist, a toxicologist and, where 3 necessary, the Paediatric Death Review Committee. So, 4 again, different team members for different types of 5 investigations. 6 MS. LINDA ROTHSTEIN: Dr. McLellan, you 7 and I will spend a little bit of time, hopefully, at the 8 end of today talking about the mandate of the Paediatric 9 Death Review Committee, but, so the Commissioner has a 10 capsule version of its role, can you tell us that now? 11 DR. BARRY MCLELLAN: Yeah, certainly. 12 The Paediatric Death Review Committee was created in 1989 13 in essence to deal with complicated paediatric deaths. 14 This was an area where coroners felt they required the 15 most ongoing assistance with their investigations, with 16 sometimes interpreting complex medical information; so a 17 committee was created at that time to provide expert 18 advice to the Office of the Chief Coroner. 19 MS. LINDA ROTHSTEIN: You'll see then, 20 Dr. McLellan, that I have asked the Registrar to 21 highlight the paragraph immediately following number 7, 22 the Paediatric Death Review Committee, and you'll note 23 that it reads: 24 "Unfortunately, in this day and age, 25 child abuse is a real issue, and it is
2041 extremely important that all members of 2 the investigative team "Think Dirty." 3 They must actively investigate each 4 case as potential child abuse, and not 5 come to a premature conclusion 6 regarding the cause and manner of death 7 until the complete investigation is 8 finished, and all members of the team 9 are satisfied with the conclusion." 10 Now I know, Dr. McLellan, you had no hand 11 in creating this protocol, is that fair? 12 DR. BARRY MCLELLAN: Yes. 13 MS. LINDA ROTHSTEIN: But can you give 14 the Commissioner some understanding of what the thinking 15 or mind set was when this protocol was created, that led 16 to the use of that particular language, "think dirty"? 17 DR. BARRY MCLELLAN: Well, the context 18 that has been provided to me was that there was a concern 19 that coroners and other members of the death 20 investigation team were missing cases where children may 21 have been abused, subsequently died, and, as a result, 22 the cases were inappropriately closed as far as cause and 23 manner of death. 24 So, my understanding is that this "think 25 dirty" phrase was developed in order to heighten the
2051 awareness of the death investigation team, and to ensure 2 that when they were approaching these cases, that cases 3 that were previously missed would not be missed. 4 MS. LINDA ROTHSTEIN: And -- 5 COMMISSIONER STEPHEN GOUDGE: Who had the 6 concern? 7 DR. BARRY MCLELLAN: I -- 8 COMMISSIONER STEPHEN GOUDGE: As far as 9 your understanding? 10 DR. BARRY MCLELLAN: My understanding is 11 it was a shared concern, certainly on the part of 12 coroners and police. I'm not in any position to speak 13 for pathologists as to whether they had voiced concerns 14 at the time, but coroners and police, I'm aware, did have 15 the concern, Commissioner. 16 MS. LINDA ROTHSTEIN: And, Commissioner, 17 so you know, I anticipate that when Dr. Cairns and Dr. 18 Young testify, they will be able to fill in more detail 19 with respect to the context -- 20 COMMISSIONER STEPHEN GOUDGE: Thank you. 21 MS. LINDA ROTHSTEIN: -- in which this 22 paragraph was drafted. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: But looking at it
2061 today, in 2007, Dr. McLellan, and -- in -- if you could 2 place yourself back in the role of Chief Coroner, can you 3 tell the Commissioner what your views of the usefulness 4 or appropriateness of that language is? 5 DR. BARRY MCLELLAN: Well, the message 6 that I have delivered in -- in recent years, is that it's 7 important for all members of the death investigation 8 team, including coroners, to keep an open mind, to 9 consider a range of possibilities. 10 And, consistent with the direction that 11 was provided following the Becken (phonetic) decision, 12 where coroners and members of the death investigation 13 team were directed not to enter an investigation and 14 presume that a death was the result of suicide, but to 15 keep an open mind. And in the case of suicide, only to 16 reach that conclusion after other manners had been 17 reasonably excluded. 18 So, my own teaching in recent years has 19 been that it's important to keep an open mind. But, I 20 can tell you that "think dirty" slides and the phrase 21 "think dirty" was removed from many of the standard 22 presentations that we were giving to members of the death 23 investigation team. 24 When I redid the presentation that the 25 coroner's office gives as part of the major case
2071 management course, that was taken out of the course. So, 2 I can't say that there has been a specific effort to send 3 out a communication saying, Don't think dirty, but the 4 approach has been different through our educational 5 courses, through our new courses for coroners, and the 6 emphasis is to keep an open mind. And, as such, you 7 know, we'll end up with the best quality of death 8 investigation. 9 COMMISSIONER STEPHEN GOUDGE: When did 10 you take it out of the educational material, Dr. 11 McLellan? When you became the Chief Coroner, or before? 12 DR. BARRY MCLELLAN: No, it would be 13 after I became Chief Coroner. It would be in the last 14 two (2) to three (3) years, Commissioner. And it wasn't 15 the result of any specific event or concern. It was just 16 a change in the evolution of the way were approaching and 17 thinking about cases. 18 COMMISSIONER STEPHEN GOUDGE: Right. Can 19 I ask just one (1) other question, Ms. Rothstein? Sorry. 20 This protocol or investigating sudden and unexpected 21 deaths of children under two (2), was it applied to all 22 such deaths or only those were there was criminal 23 suspicion? 24 DR. BARRY MCLELLAN: It would be applied 25 to all such deaths, with the exception -- and -- and to
2081 go back to a question that Ms. Rothstein put to me before 2 the break, if a child, you know, died as a result, 3 clearly, of a motor vehicle crash -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. BARRY MCLELLAN: -- this wasn't 6 applied. So it wasn't applied to all, but it was applied 7 to all sudden deaths, not just those where someone had 8 raised a concern initially about it being criminally 9 suspicious or homicide. 10 COMMISSIONER STEPHEN GOUDGE: Thank you. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: So, Dr. Pollanen, 14 from your perspective as a forensic pathologist, what, in 15 your opinion, is the appropriateness of an encouragement 16 for any member of the death investigation team in dealing 17 with these deaths to think dirty? 18 DR. MICHAEL POLLANEN: The "think dirty" 19 philosophy is not well represented in the major textbooks 20 of forensic pathology. If you survey the major textbooks 21 in forensic pathology, you will find that the 22 philosophical framework for forensic pathologists is 23 usually a search-for-the-truth framework; and that is 24 embodied in -- in other nomenclature, such as think 25 objectively.
2091 And the -- the concept there is to keep an 2 open mind and engage the autopsy and the forensic 3 pathology of the case using this evidence-based approach, 4 specifically to keep your mind open to various 5 possibilities, collect objective findings that both 6 support and negate various medical/legal issues. 7 And this search-for-the-truth platform is 8 mean to -- to allow the pathologist to consider a broad 9 menu of possibilities. 10 "Think Dirty" is a way of segmenting or 11 drawing attention to a certain type of possibility or 12 certain type of death which is, essentially, unnecessary 13 if one is engaging the case from first principles, with 14 an open mind, with a search for the truth. 15 So, the -- the advice that we currently 16 give in the forensic pathology guidelines is, in fact, 17 not to think dirty. We advise people to keep an open 18 mind, to search for the truth, to think objectively. 19 Now, it would be incomplete for me to say 20 that this does not mean that we are closed to the 21 possibilities of child abuse but, rather, that we will 22 let the evidence guide us to that determination; the 23 objective evidence such as fractures, presence of 24 subdural haemorrhage; other evidence of injury will be 25 the guide.
2101 MS. LINDA ROTHSTEIN: And, Dr. McLellan, 2 can I just clarify that this memorandum was sent not only 3 to coroners and pathologists, but also to chiefs of 4 police? 5 DR. BARRY MCLELLAN: That's correct. 6 MS. LINDA ROTHSTEIN: And, indeed, you've 7 suggested that there was some element of an education 8 process that went along with the creation and publication 9 of this protocol? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: And that education 12 would have included coroners and, again, police officers. 13 Is that fair? 14 DR. BARRY MCLELLAN: Correct. 15 MS. LINDA ROTHSTEIN: So, for a period of 16 time - it's hard to know for how long - this message 17 "Think Dirty" would have found its way into the education 18 that was done about investigating sudden and unexpected 19 deaths of children under two (2). 20 Is that a fair conclusion for the 21 Commissioner to draw? 22 DR. BARRY MCLELLAN: Yes. 23 MS. LINDA ROTHSTEIN: All right. Turning 24 over the page then, may we, Mr. Registrar, to 354, can 25 you assist us, Dr. Pollanen, with respect to the unique
2111 features of the autopsy in the context of these case? 2 DR. MICHAEL POLLANEN: Well, the -- the 3 unique features of the autopsy essentially can be divided 4 up into two (2) areas: procedural and conceptual. And 5 the procedures involve items that have been codified in 6 this guideline, which are applicable today, in fact. 7 We've enlarged them somewhat to include, 8 for example, metabolic testing. But the -- the 9 foundations of, for example, doing x-rays and cultures 10 and toxicology actually stem from these guidelines. 11 The post -- the actual procedure for the 12 post-mortem examination follows along the five (5) steps 13 that I've already told you, and will, in many cases, 14 involve additional dissections. For example, in infant 15 head injury cases or cases where the brain is swollen, 16 the eyes may be taken for examination under the 17 microscope; spinal cord may be removed. 18 In cases where there is suspicion of 19 pressure applied to the face or neck, the face may be 20 dissected to seek evidence or the absence of evidence of 21 -- of bruising. 22 So there are additional range of 23 dissections that might be done including removing bones 24 for examination under the microscope. So it sort of 25 depends upon the scope of the post-mortem.
2121 But also, the -- the conceptual approach 2 that I've indicated, the -- the approach that one takes 3 in the actual post-mortem room, involves a very 4 interesting interplay of events which include information 5 provided to the pathologist through the coroner's warrant 6 or perhaps by the coroner themselves; the police in 7 attendance at the post-mortem examination providing the 8 history; if you have not gone to the scene, information 9 transmitted to you by the digital photographs. All this 10 is happening in real time. 11 And the pathologist needs to navigate 12 through the different data sources and -- and contemplate 13 how they will approach the post-mortem. 14 MS. LINDA ROTHSTEIN: Can we turn then to 15 356 of that documents, Registrar. 16 And a new term -- term of art I expect, 17 "Sudden Unexplained Deaths" SUD or SUDS, I've heard it 18 described, Dr. Pollanen, can you assist us with what that 19 refers to? 20 DR. MICHAEL POLLANEN: A slightly more 21 heterogeneous category of case. Essentially, in the SIDS 22 determination, we say it's less -- a negative autopsy 23 less then one (1), and the manner of death by convention 24 is given as natural. 25 Essentially, without getting into
2131 historical analysis, the SUD case is a autopsy which may 2 be in the SIDS age range or may be beyond the SIDS age 3 range, but includes some positive feature that does not, 4 therefore, meet the exclusionary criteria of SIDS. 5 So, an example of that -- some example are 6 -- are given in the text. One (1) -- one (1) frequent 7 example that is often very difficult for the forensic 8 pathologist to deal with, is the otherwise negative 9 autopsy of an infant in the presence of healed fractures, 10 which may, in -- in the appropriate circumstance, 11 indicate chronic physical child abuse. And in that 12 circumstance, it would be folly to give the diagnosis or 13 cause of death as SIDS. 14 The -- the other circumstances are given, 15 which include certain positive findings which may, in and 16 of themselves, not come to the level of giving the cause 17 of death, but provide the pathologist with data to be 18 cautious about coming to a conclusion. 19 And when we -- ultimately what will happen 20 in those cases is that the manner of death will be 21 certified as undetermined. 22 MS. LINDA ROTHSTEIN: So this is an 23 example if -- or this is a situation, if I understand 24 you, Dr. Pollanen, where the relationship -- the integral 25 relationship -- between the conclusion of the pathologist
2141 on the cause of death has an overwhelming influence on 2 what the manner of death determination is by the coroner. 3 If I hear you, it would be folly to call 4 it a SIDS death where there is, in fact, evidence of 5 healed fractures that can not otherwise be explained. 6 Because if one does that, one generates a natural death 7 as the manner of death, and so the pathologist comes to 8 the cause of death conclusion that it's not SIDS, it is 9 indeed SUDS? 10 Is that -- do I understand you, sir? 11 DR. MICHAEL POLLANEN: Yes. 12 MS. LINDA ROTHSTEIN: All right. 13 DR. MICHAEL POLLANEN: Well put. 14 MS. LINDA ROTHSTEIN: And -- 15 COMMISSIONER STEPHEN GOUDGE: Can I ask 16 you a question? Why is the manner of death with SIDS 17 classified as natural? 18 DR. MICHAEL POLLANEN: By convention. 19 This is one (1) of the interesting aspects of pediatric 20 forensic pathology, is that SIDS -- Sudden Infant Death 21 Syndrome -- is determined natural by convention. 22 And the -- there is some -- there are some 23 forensic pathologists that argue that, in fact, the 24 manner of death should be given as undetermined to 25 recognize the symmetry in, for example, the adult or
2151 childhood circumstance where a negative autopsy would be 2 signed out as "unascertained". Many -- in many 3 circumstances, the manner of death would be -- would be 4 certified as "undetermined". 5 But, by convention, in the -- in the 6 circumstance of SIDS, largely for epidemiological 7 reasons, we give the manner of death -- or rather the 8 coroner gives the manner of death as natural. 9 COMMISSIONER STEPHEN GOUDGE: Thank you. 10 DR. MICHAEL POLLANEN: But it is -- it is 11 in fact illogical. 12 COMMISSIONER STEPHEN GOUDGE: Or at least 13 inconsistent. 14 DR. MICHAEL POLLANEN: Yes. 15 16 CONTINUED BY MS. ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: Is the SIDS/SUDS 18 distinction universally applied in this way you've 19 described? 20 DR. MICHAEL POLLANEN: Well, in my view, 21 and in the view of many forensic pathologists, the SIDS 22 and SUDS categories are more about nomenclature; about 23 how we tag things with words -- 24 COMMISSIONER STEPHEN GOUDGE: How we 25 classify?
2161 DR. MICHAEL POLLANEN: -- correct -- 2 rather than the terminology being closely linked to 3 what's actually happened. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. MICHAEL POLLANEN: So, for example, 6 if we say "gunshot wound of head, perforating brain", 7 there's a very -- there's a very specific meaning and 8 certain corollaries flow from that. But it is not the 9 case in SIDS and SUDS. 10 11 CONTINUED BY MS. ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: Is it still useful, 13 in your view, to use those two (2) different cause of 14 death determinations? 15 DR. MICHAEL POLLANEN: It is useful 16 insofar as it provides a framework of thinking that is 17 more compatible with the evidence-based approach, than 18 not. 19 MS. LINDA ROTHSTEIN: Do I hear you to 20 say, It's the best we've come up with so far, Dr. 21 Pollanen? 22 DR. MICHAEL POLLANEN: I would say that - 23 - and I think most forensic pathologists would say that 24 they are extremely frustrated with the state-of-the-art 25 in pediatric forensic pathology around sudden infant
2171 death. And this probably is the best framework that we 2 have available to us right now. 3 And there's an extension of that which is 4 the name classification which we employ in a committee 5 that you will eventually get to called The Death Under 6 Five Committee. 7 MS. LINDA ROTHSTEIN: But before we do, 8 Dr. Pollanen, you've already touched on obviously some of 9 the unique -- if I can call them that -- challenges posed 10 by criminally suspicious pediatric deaths. 11 What are some of the others? 12 DR. MICHAEL POLLANEN: There are several. 13 I think, probably, if we were to -- to give a bird's-eye 14 view of the issue, there is one concept that is so very 15 important in these cases and that's this concept: That 16 in many criminally suspicious cases of pediatric death or 17 cases that are not initially thought to be suspicious, 18 the evidence for homicide or, indeed, that a crime has 19 been committed, in many circumstances, will be entirely 20 medical. And this is in stark contrast to most cases in 21 the criminal justice system. 22 And the best example of that is the infant 23 who dies during sleep, that has no externally apparent 24 evidence of injury, no past medical history, a negative 25 scene investigation by the -- by the Death Investigation
2181 Team working at their -- their height of perfection. The 2 first evidence that you will have a homicidal death, in 3 many circumstances, will be a post-mortem. 4 And this underlies both the -- the power 5 of the medical/legal autopsy, but also one of the 6 greatest difficulties that can emerge and that is if the 7 medical evidence is non-controversial, independently 8 reviewable, evidence-based, the criminal justice system 9 is provided with a very good diagnosis; a very good 10 expert opinion. And the fact that there -- there lacks a 11 large amount of circumstantial or witness statement 12 evidence, et cetera, that is corroborative, is 13 scientifically valid. 14 If, however, circumstances are different, 15 then the forensic pathology evidence may create a serious 16 error in the criminal justice system. That is probably 17 the biggest challenge. And this is extremely closely 18 linked with other frailties of pediatric forensic 19 pathology. 20 First is the enigma of SIDS; the fact that 21 a large amount of the autopsy work done in pediatric 22 forensic pathology is defined by a diagnosis of exclusion 23 and is, in fact, mostly defined by convention in 24 epidemiology, rather than science. 25 The second sort of enigma, or -- or at
2191 least controversial area, is the interpretation and 2 diagnosis of infant head injury. And this includes the 3 spectrum of issues related to the so-called Shaken Baby 4 Syndrome. 5 The issue there being, among many, does 6 shaking cause lethal injury? And this has, you know, a 7 very rich recent history in the medical literature and is 8 -- is currently being debated. 9 These issues -- the enigma of SIDS plus 10 the challenges related to shaken babies and related areas 11 -- further complicate the first instance where you may 12 have -- and -- and this is -- this is self-evidently true 13 -- a child who is found dead in bed under non-suspicious 14 circumstances, that for all intents and purposes to the 15 police and the coroner, appears to be non-suspicious, and 16 in the one circumstance, the autopsy will reveal SIDS, 17 and the other, Shaken Baby Syndrome. And it's an 18 entirely medical determination associated with all of the 19 issues -- the scientific issues -- that underlie those 20 two (2). 21 The SIDS and the shaken baby issue then 22 come together into the concept that -- and of the very 23 important concept in pediatric forensic pathology -- that 24 knowledge is not frozen, that this knowledge progresses 25 and grows over time. And this produces one of the most
2201 defining or important tensions between medicine and law, 2 and that is that the legal system would prefer that 3 answers that are given at some point in the past remain 4 the same. 5 But that is not the nature of knowledge; 6 that is not the nature of medical knowledge. Medical 7 knowledge grows and develops. 8 So, what might be accepted as true and 9 which may form a reasonable basis for expert opinion 10 evidence at some point in the past, may not do so in the 11 present or future circumstance. This produces a 12 fundamental tension between medicine and law, and is very 13 challenging for forensic pathologists. 14 The final sort of non-technical issue that 15 is present in -- in the overall sphere is, what I call, 16 the ultimate issue pitfall. And it is a -- it is a way 17 of saying that, because of all of those concepts that 18 I've described, it may, in fact, be the opinion of the 19 forensic pathologist that is determinative of the 20 ultimate issue in a way that, in many cases in forensic 21 pathology, the forensic pathologist doesn't necessarily 22 come very close to the ultimate issue to be decided. 23 MS. LINDA ROTHSTEIN: The determinative 24 of not only whether there was a crime, but if there was a 25 crime, who did it.
2211 DR. MICHAEL POLLANEN: Correct. And this 2 is -- this is probably the most important legal 3 consequence that the -- the state of knowledge and the 4 nature of the discipline creates great challenges for the 5 ultimate issue. 6 MS. LINDA ROTHSTEIN: And what I hear you 7 to be saying, Dr. Pollanen, is that that is far less 8 frequently the case when -- when forensic pathology is 9 looking at adult cases. 10 DR. MICHAEL POLLANEN: There are notable 11 exceptions in the adult population, but that is generally 12 true and well recognized. 13 MS. LINDA ROTHSTEIN: So, if the 14 Commissioner were to take away from that, that in a large 15 number of pediatric cases the importance of the forensic 16 pathology evidence is much heightened from a non-ped -- 17 from non-pediatric cases, would that be fair? 18 DR. MICHAEL POLLANEN: Yes. In general, 19 that would be true. 20 MS. LINDA ROTHSTEIN: All right. That's 21 most helpful. I do want to direct the Commissioner to a 22 couple of the committees that you have both made 23 reference to and the work that they do. 24 Tab 16 of your document book -- or 25 actually, let's turn up Tab 17 which is the most recent
2221 report of the Paediatric Death Review Committee. 2 Registrar, 057188. 3 And if you would be good enough to turn to 4 page 4 of that document, the Terms of Reference of the 5 Paediatric Death Review Committee are set out there. 6 Dr. McLellan, I've been listening 7 carefully to you and Dr. Pollanen, and I see the terms of 8 reference of a committee as being described to include 9 the determination of the cause and manner of death. Help 10 us with that, please. 11 DR. BARRY MCLELLAN: On occasion, a 12 coroner will request the assistance of one (1) of the 13 expert committees -- Paediatric Death Review Committee 14 being one (1) of them -- to assist with interpreting the 15 investigation findings and to provide an opinion with 16 respect to cause and manner of death. 17 So, the experts on this Committee are, on 18 occasion, asked to assist with that particular 19 determination. That information goes back to the corner, 20 and it's ultimately the coroner who will complete the 21 Coroner's Investigation Statement. 22 MS. LINDA ROTHSTEIN: And have you sat on 23 this Committee at any stage of its incarnation? 24 DR. BARRY MCLELLAN: No, I have not. 25 MS. LINDA ROTHSTEIN: All right. So you
2231 can't assist us with a real-life example, can you, Dr. 2 McLellan, as to the sort of case that would call on a 3 full Committee to assist in determining cause and manner 4 of death? 5 DR. BARRY MCLELLAN: Well, the most 6 common situation would be with a complex natural death 7 where, following an autopsy, there may be the need to go 8 back and to interpret complex medical records. And 9 bringing in experts with pediatric expertise can 10 sometimes assist with better understanding what lead to 11 the death, and then, ultimately, how that relates to the 12 manner of death. 13 MS. LINDA ROTHSTEIN: And if we look at 14 page 29 of that document, Registrar, that gives us a 15 sense, does it not, Dr. McLellan, of the wide, multi- 16 disciplinary composition of this Committee? 17 DR. BARRY MCLELLAN: Yes, on the left 18 side of the screen it outlines the membership of the 19 Paediatric Death Review Committee. 20 MS. LINDA ROTHSTEIN: But the notion, is 21 it, to have a fairly multi-disciplinary approach to the 22 work of this Committee; child welfare, coroners, a 23 pathologist -- one (1) at least -- police officers and so 24 on, all trying to pool their expertise? 25 DR. BARRY MCLELLAN: Correct.
2241 MS. LINDA ROTHSTEIN: We go back to the 2 terms of reference. Again, Registrar, if you'd be good 3 enough to turn back to page 4 of that same document. 4 Can you assist us, Dr. McLellan, with 5 point three (.3) of the Terms of Reference; the -- the 6 notion that the Committee might be called upon to provide 7 expert evidence where requested at inquests and criminal 8 proceedings? 9 DR. BARRY MCLELLAN: I don't know how 10 frequently experts have been called upon to assist at 11 criminal proceedings. Certainly there have been many 12 instances where a representative from the Paediatric 13 Death Review Committee would testify at an inquest, 14 usually around complex medical issues. 15 But certainly there would be an 16 opportunity for an expert to be called upon to assist at 17 criminal proceedings as well. 18 MS. LINDA ROTHSTEIN: And the notion 19 would be that this Committee could be of assistance in 20 identifying the appropriate expert for that evidence, is 21 that -- 22 DR. BARRY MCLELLAN: Correct. 23 MS. LINDA ROTHSTEIN: -- is that fair? 24 All right. 25 COMMISSIONER STEPHEN GOUDGE: Can I just
2251 ask, Ms. Rothstein, when did this Committee come into 2 existence? I'm sure you're going to cover this in 3 detail, but -- 4 DR. BARRY MCLELLAN: It first -- 5 COMMISSIONER STEPHEN GOUDGE: -- interrupt 6 -- 7 DR. BARRY MCLELLAN: -- started in 1989. 8 MS. LINDA ROTHSTEIN: And yeah, I'd 9 wanted to just touch on it if I could, Commissioner, it 10 chaired most recently by Dr. Cairns. He was involved on 11 the ground floor in its creation, and I propose when Dr. 12 Cairns -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 MS. LINDA ROTHSTEIN: -- is here -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MS. LINDA ROTHSTEIN: -- to walk through 17 its work in some considerably more -- considerable more 18 detail. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: I do want to just 22 touch on page 9 of the document. Page 11 for your 23 purposes, Registrar. 24 One of the sad aspects of the work of the 25 Coroner's office that is highlighted in this report, and
2261 was obviously a considerable concern to the PDRC. 2 Many of course of the category of youth 3 that I take it are -- are spoken of here would be older 4 then what some of us would think of as being classified 5 as pediatric cases. 6 But, Dr. McLellan, are you able to assist 7 us at all with the work that the PDRC has done in trying 8 to reduce youth suicide in First Nations communities? 9 DR. BARRY MCLELLAN: This has been a 10 concern of the office for many years. The PDRC did 11 conduct a specific review of a number of suicide deaths 12 in the First Nations communities, and you will note that 13 there are a total of eight (8) recommendations generated 14 with the goal of trying to prevent such deaths in future. 15 MS. LINDA ROTHSTEIN: And then if I 16 understand it correctly, this report also deals with the 17 work of the Death Under Five Committee, which has a 18 rather different set of objectives and composition. 19 Registrar, could you turn to page 12 of 20 that document. And it's page 10 of the annual report, 21 Commissioner. 22 Can you outline for the Commissioner, Dr. 23 McLellan, the purpose of the Deaths Under 5 Committee? I 24 know you've touched on it, but perhaps it would be 25 helpful to emphasize its objectives?
2271 DR. BARRY MCLELLAN: And perhaps I can 2 provide a context by talking about the history of this 3 Committee, Ms. Rothstein. 4 MS. LINDA ROTHSTEIN: That'd be helpful 5 DR. BARRY MCLELLAN: It was created in 6 2000, originally called the SIDS/SUD Review Committee. 7 It was created at that time to try to ensure that cases 8 were being consistently classified, and as well at that 9 time to start to focus more attention on the quality of 10 the death investigations, and that included the 11 pathology. 12 The Committee subsequently evolved to 13 becoming the Death Under Five Committee, and the -- I'm 14 referring now to our institutional report on page 67. I 15 think it nicely describes at paragraph 209, the mandate 16 of the committee. 17 MS. LINDA ROTHSTEIN: The institutional 18 report, page 67 please, Registrar. You can walk us 19 through that, Mr. McLellan -- 20 DR. BARRY MCLELLAN: Very good. 21 MS. LINDA ROTHSTEIN: Thank you. 22 DR. BARRY MCLELLAN: So at -- at 23 paragraph 209 it indicates -- 24 MS. LINDA ROTHSTEIN: Can you highlight 25 that for us please, Registrar? Sorry, Dr. McLellan.
2281 DR. BARRY MCLELLAN: It's okay. It 2 indicates under mandate that this multi-disciplinary 3 committee retrospectively examines the quality and 4 results of the pediatric death investigations in Ontario. 5 This includes the autopsy and 6 specifically, with this Committee, it's focussing on the 7 classification of deaths. 8 There are a number of pathologists who sit 9 and review the quality of the autopsies conducted and 10 it's one (1) of the important quality assurance 11 committees that exists at the Office. 12 MS. LINDA ROTHSTEIN: So let's stop there 13 for a moment. 14 We can see from the tail end of the annual 15 report, Commissioner, which you have at Tab 17, that this 16 Committee is populated with a number of pathologists, 17 including you, Dr. Pollanen -- 18 DR. MICHAEL POLLANEN: That's correct. 19 MS. LINDA ROTHSTEIN: -- your colleague, 20 Dr. David Chiasson, at the Hospital for Sick Children; 21 Dr. Taylor, also of the Hospital for Sick Children. 22 How does this Committee engage in a 23 process of review of pediatric autopsies? How -- how do 24 you do that work as a committee? 25 DR. MICHAEL POLLANEN: Well, I think
2291 what's -- as a starting point to that, what's extremely 2 important to realize in this Committee and the PDRC, is 3 that one (1) of the recurring themes in our death 4 investigation system is this concept of teamwork and 5 inter-disciplinarity and why that is so important is that 6 the death investigation is a very complex exercise that 7 involves input from many different players. 8 And one (1) of the things that I think we 9 can be very proud of in our system in -- in this 10 province, is that we -- we have embraced that concept in 11 forming these committees. These committees are, in fact, 12 not limited to child deaths, there are a number of other 13 committees that perform similar functions for other 14 categories of death and this is a -- this has been a 15 feature for a long time in our system. It is -- it 16 really underscores one of the core values which is this 17 teamwork approach. 18 And the Death Under Five Committee has -- 19 has a very interesting sort of recent evolution, recent - 20 - recent history, because we initially viewed this 21 committee as the last point in the death investigation 22 process where different sources of information would be 23 ultimately integrated in determination of cause and 24 manner of death, and instead of one (1) individual making 25 that determination, multiple minds meet to consider the
2301 issues. 2 So in the -- in a typical meeting, the 3 cases would be assigned to various people, various types 4 of experts on the Committee. So, for example, I might be 5 assigned some autopsy reports; police officers are 6 assigned police reports. The coroners chair the meeting 7 and there's a -- and other people besides but -- and then 8 there's a discussion about the different aspects of the 9 case and ultimately advice is given with regard to 10 ultimate certification. 11 So it's -- it's -- in a way it -- it blurs 12 this very polarized distinction that we made this morning 13 between who certifies the manner of death, for example, 14 because it's sort of a -- it's an interactive discussion 15 on the point. 16 Doesn't, of course, change the fact that 17 the autopsy is one (1) piece of information that flows 18 into this Committee. Doesn't change the autopsy report 19 or the cause of death given by the pathologist. The 20 output of the Committee is more regarding certification, 21 the coroner's certification of cause and manner of death. 22 MS. LINDA ROTHSTEIN: Well, help us with 23 that. It doesn't change the report; but what if it -- 24 the committee, that is, detects that there is some flaw 25 in the report, then what?
2311 DR. MICHAEL POLLANEN: Then there is an 2 opportunity for either reinvestigation of the case or 3 review, for example, of the pathological components. 4 MS. LINDA ROTHSTEIN: Right. 5 So am I right, Dr. McLellan, in 6 understanding that the Death Under Five Committee and its 7 two (2) predecessors, the Death Under Two Committee and 8 the SIDS/SUDS Committee, have all been established since 9 June of 2000? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: Right. And so are 12 we to infer from that that none of these committees was 13 involved in reviewing any of the cases that were 14 ultimately the subject of the Chief Coroner's Review; 15 that is to say, the twenty (20) cases of criminally 16 suspicious or homicide done by Dr. Charles Smith? 17 DR. BARRY MCLELLAN: I don't believe that 18 the Death Under Five/Death Under Two, SIDS/SUD Committee 19 ever reviewed one (1) of those deaths. I'm just thinking 20 that the time frame went up to 2001 -- 21 MS. LINDA ROTHSTEIN: Correct. 22 DR. BARRY MCLELLAN: -- so I would err on 23 the side of caution and say I would need to cross- 24 reference. But I have no recollection of one (1) of 25 those cases coming to this Committee for review.
2321 Now, Dr. Pollanen has just drawn to my 2 attention something here. I just want to make sure he 3 and I are in agreement that he was pointing out on page 4 12, under Deaths Under five Committee, the fact that in 5 1995 a protocol was established. But I believe, Dr. 6 Pollanen -- might be the only time we have to work a 7 little negotiation here -- that the actual review 8 committee started to meet in 2000, the protocol hadn't 9 been established in 1995? 10 DR. MICHAEL POLLANEN: Correct. 11 MS. LINDA ROTHSTEIN: You both agree 12 about that? 13 DR. BARRY MCLELLAN: I'm not sure I'm 14 supposed to pose questions here, but I just thought we 15 would try and get that straight. 16 MS. LINDA ROTHSTEIN: Okay. 17 COMMISSIONER STEPHEN GOUDGE: Dr. 18 McLellan, let me ask this question. The Death Under Five 19 Committee reviews all death investigations of children 20 under five (5)? 21 DR. BARRY MCLELLAN: That's correct. 22 COMMISSIONER STEPHEN GOUDGE: So, whether 23 or not criminally suspicious? 24 DR. BARRY MCLELLAN: That's correct. 25 COMMISSIONER STEPHEN GOUDGE: And does it
2331 do so before the coroner certifies, or does it have, in 2 effect, a graphed certification as part of its input? 3 DR. BARRY MCLELLAN: The intention is 4 that the cases is coming -- the cases come through for 5 review prior to certification. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. BARRY MCLELLAN: I can't say that in 8 some of the cases the coroner may not have already 9 completed a -- an investigation statement with their 10 position with respect to certification of death. But the 11 case would not be completed in our system until it had 12 gone through this Committee. 13 COMMISSIONER STEPHEN GOUDGE: I see. And 14 so the normal protocol would be the coroner would await 15 the review by this Committee before finalizing the 16 certificate. 17 DR. BARRY MCLELLAN: Correct, with the 18 understanding that there's expertise at this Committee 19 that would be assisting them with their ultimate 20 determination. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: Dr. McLellan, by 24 all means, let me know today or tomorrow if your counsel 25 or anyone else is able to clarify whether any of Dr.
2341 Smith's twenty (20) cases were ever reviewed by this 2 committee or its predecessors -- predecessors. 3 DR. BARRY MCLELLAN: I will. 4 MS. LINDA ROTHSTEIN: All right, that's 5 helpful. A little bit of time, then, on some of the 6 other quality assurance steps that have been taken in the 7 last number of years by the OCCO. 8 There is something called a Quality 9 Assurance Committee -- a Quality Assurance Committee, and 10 you've made some passing reference to that, Dr. McLellan. 11 Can you help us with its mandate? 12 DR. BARRY MCLELLAN: The Quality 13 Assurance Committee was established, in general, to look 14 at overall quality. The focus turned out to be on the 15 guidelines, of which you've seen the first and second 16 editions. 17 Other matters of quality right now are 18 dealt with through other processes, and are not going 19 through the Quality Committee. 20 MS. LINDA ROTHSTEIN: All right. It's 21 page 39 of the Institutional Report, if I can assist you, 22 Registrar. 23 So, Dr. McLellan, am I right in having the 24 notion that this is the Committee that creates a variety 25 of guidelines and protocols; it doesn't, itself, look at
2351 individual cases in any way? 2 DR. BARRY MCLELLAN: That's correct. And 3 you mentioned guidelines and protocols; to this point in 4 time the Committee has only dealt with guidelines. 5 MS. LINDA ROTHSTEIN: All right. And -- 6 and what's the difference; is there a term of art that -- 7 that your colleagues would understand that I've entirely 8 missed? 9 DR. BARRY MCLELLAN: Some of our 10 protocols go out under memoranda, and I suspect that we 11 may be visiting some of those over the next day and half. 12 The guidelines are specifically those that have gone out 13 under the guidelines for death investigation, and are 14 generally around expectations, as opposed to a specific 15 protocol as to how to conduct investigations. 16 MS. LINDA ROTHSTEIN: So, a protocol is 17 more specific, and a guideline has broader application; 18 is that what I'm hearing? 19 DR. BARRY MCLELLAN: I think that's fair. 20 And I don't want to suggest that there's a clear wedge 21 between the two (2), but this particular Committee has 22 focussed on the guidelines that we've already discussed. 23 MS. LINDA ROTHSTEIN: Okay. 24 COMMISSIONER STEPHEN GOUDGE: If you were 25 to label either the best practices, which would it be;
2361 the guideline or the protocol? 2 DR. BARRY MCLELLAN: I would say the best 3 practices would include the guidelines and the memoranda 4 that are issued that we'll be visiting here, 5 Commissioner. 6 COMMISSIONER STEPHEN GOUDGE: Thank you. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: May we see 032488? 10 COMMISSIONER STEPHEN GOUDGE: Is that one 11 of our tabs? 12 MS. LINDA ROTHSTEIN: I'm -- I think it 13 is, and I realize that my correspondence kind of fell 14 away late last night. 15 COMMISSIONER STEPHEN GOUDGE: Yes, I 16 think it is Tab 19. 17 MS. LINDA ROTHSTEIN: There we are, thank 18 you, Commissioner. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Yeah, the quality 22 assurance that is done of the Coroner's Investigation 23 Statements; can you assist us with that process please, 24 Dr. McLellan? 25 DR. BARRY MCLELLAN: Specifically, you're
2371 referring to memorandum 0703 which was issued on February 2 28th of this year. And that dealt with a specific 3 process including an audit tool to review Coroner's 4 Investigation Statements. 5 But to answer your question more 6 generally, all Coroner's Investigation Statements have, 7 for a number of years, been reviewed by a Regional 8 Supervising Coroner before the case is completed. 9 That is an overall process of quality 10 assurance that was established years ago and, in my 11 opinion, is a significant opinion to what existed prior 12 to that. This memorandum discusses a very specific audit 13 tool that was developed in order to objectively assess a 14 subset of those investigation statements in order to 15 provide feedback to the investigating coroners. 16 MS. LINDA ROTHSTEIN: Okay. Turning to 17 education, we touched on it this morning, Dr. McLellan. 18 You told us about the training that is available, two and 19 a half (2 1/2) days in length, when someone first becomes 20 an investigating coroner. 21 I know that that isn't the end of the 22 education that is offered to your investigating coroners 23 and others. And perhaps you can tell us about the annual 24 education conference that has been in -- been in place 25 for a number of years.
2381 DR. BARRY MCLELLAN: So there's two (2) 2 formal opportunities for education within the coroners 3 system each year. The first is the annual education 4 course which is a two and a half (2 1/2) day course 5 that's offered for both coroners and pathologists. 6 Coroners are invited to attend this every 7 two (2) or three (3) years. It's just not possible, 8 based on the number of coroners and a budget, to have 9 coroners coming each year. 10 The second opportunity is a educational 11 course that's provided by the Ontario Coroners' 12 Association once per year. It's usually a half day 13 course. That's voluntary; it's something that our office 14 supports, but it's organized by the Ontario Coroner's 15 Association. 16 MS. LINDA ROTHSTEIN: And how long have 17 those annual courses been around the OCCO, and used by 18 the OCCO? 19 DR. BARRY MCLELLAN: The Ontario 20 Coroner's Association courses, as long as I have been a - 21 - a coroner. And the specific date for introducing the 22 annual education course is in our institutional report, 23 and I'd have to refer to it to get you that specific 24 date, if you can bear with me for a minute. 25 MS. LINDA ROTHSTEIN: Don't need to at
2391 the moment. Lets turn, if we can, to the subject of 2 seminars and education for forensic pathologists. 3 There's a lot of them, Dr. Pollanen. There's one hundred 4 and ninety (190) of them, at least, potentially engaged 5 in forensic autopsies in Ontario. 6 They don't all don't do criminally 7 suspicious, you've told us that. But how does one train 8 a group of people of that magnitude? 9 DR. MICHAEL POLLANEN: With great 10 difficulty. The -- first of all, the -- for -- the 11 pathologists in the Province of Ontario have a fellowship 12 from the Royal College of Physicians and Surgeons of 13 Canada in -- in the manner that we described this 14 morning. 15 So. the maintenance of certification 16 requirement includes attendance at continuing medical 17 education events. And that's something that the 18 pathologists, themselves, will deal with. 19 MS. LINDA ROTHSTEIN: But that's not 20 focussed on forensic training, if I understand your 21 evidence. 22 Is that fair? 23 DR. MICHAEL POLLANEN: Correct. So, 24 basically, it would be up to the individual pathologist 25 to identify the need for continuing professional
2401 development in forensic pathology. 2 What we do is offer a course in the 3 context of the joint coroners and pathologists education 4 venue, and this -- in the two and a half (2 1/2) day 5 course we have a pathology day where pathologists are 6 invited from across the Province, on rotation, to 7 participate in this series of lectures, essentially, for 8 -- for that day. 9 They're, of course, invited to attend the 10 other portions of the -- of the conference as well, and 11 we also encourage coroners to attend the pathology 12 portion so there's some cross-fertilization in the 13 meeting. 14 We -- the other sort of major educational 15 event, which is in recent development, is an expert 16 witness workshop, which we have ran twice, and involves a 17 day and a half of didactic and small group sessions. 18 This is aimed specifically at forensic pathologists on -- 19 on how to give expert witness testimony. And we have a 20 variety of prosecutors and defence attorneys who give 21 their time and are involved in -- in that endeavour. 22 That's very popular and -- and is quite effective. 23 We then have a series of seminars that are 24 run out of my department, and those occur six (6) times 25 per year; the last Wednesday of the month during
2411 hospitable months. 2 And in those venues, we bring forensic 3 pathologists; sometimes coroners attend, and sometimes 4 pathologists from across the Province will also attend, 5 but minimally, admittedly. And there we talk about tough 6 issues in forensic pathology. We talk about development 7 of new knowledge in the discipline. We talk about 8 controversies. We review interesting cases. 9 And these educational events are -- they 10 form a very important backbone of our system, largely 11 because, in addition to providing information, it also is 12 a very good way of creating a community of collaborative 13 experts. And one (1) of the big challenges that -- that 14 I have faced, and no doubt my predecessors have faced, is 15 bringing together this group of forensic pathologists 16 that are regionally defined across the Province. 17 And bringing them together conceptually 18 and physically is -- is very challenging. But this is 19 extremely important because it provides communication of 20 the same message educationally, and it is a way of 21 obtaining buy-in and collaboration for the development of 22 guidelines. 23 And I've tried to use those educational 24 venues for that benefit as well. 25 MS. LINDA ROTHSTEIN: Dr. Pollanen, of
2421 the twenty-five (25) pathologists who do autopsies in 2 criminally suspicious and homicide cases currently, how 3 many of them have formal training in forensic pathology? 4 DR. MICHAEL POLLANEN: I would have to 5 review the data. 6 MS. LINDA ROTHSTEIN: Not all of them? 7 DR. MICHAEL POLLANEN: No. 8 MS. LINDA ROTHSTEIN: How important is 9 that? How important is formal training in forensic 10 pathology to do autopsies in criminally suspicious and 11 homicide cases? 12 DR. MICHAEL POLLANEN: Well, I think 13 there are -- there are two (2) elements. There's the 14 training and then there's the certification. 15 Because the training is usually vocational 16 experiential; where you perform autopsies in a 17 medical/legal environment and there's some type of 18 mentoring process, graduated responsibility. And that, 19 certainly, is extremely important. 20 The other element though, also, is 21 certification, and that is getting a qualification by 22 examination. I would say both are very important. 23 The -- the issue right now is that there 24 are some people who -- who may take the training but 25 elect not to sit the examinations. And, quite frankly,
2431 the -- Canada has not been a leader in this area. 2 Specifically, there are many people who I 3 suspect would have opted for training and examination in 4 forensic pathology had it been available domestically. 5 And that's an -- that is a situation where we are, you 6 know, currently standing in an improved state, because as 7 of next summer, we will have training programs and an 8 exam given by the Royal College in forensic pathology. 9 So I think -- I think we would have to say 10 that there is a -- a progressive realization of the 11 importance of those issues. 12 MS. LINDA ROTHSTEIN: And just in the 13 last few minutes before we adjourn for today, in the 14 pediatric environment, how important is pediatric 15 specialization as compared to forensic training? 16 DR. MICHAEL POLLANEN: That is a very 17 large area. I would say -- I would simply say it as 18 this: that if you look at the word Pediatric Forensic 19 Pathology, there are two (2) philosophical approaches; 20 there is the forensic approach, and then there is the 21 pediatric approach. 22 MS. LINDA ROTHSTEIN: And which is the 23 approach you favour, Dr. Pollanen? 24 DR. MICHAEL POLLANEN: For cases 25 involving homicide and criminally suspicious matters, the
2441 forensic approach. 2 MS. LINDA ROTHSTEIN: And can you give us 3 at least the beginnings of your explanation. I promise 4 to follow up tomorrow if that's necessary. 5 DR. MICHAEL POLLANEN: Well Pediatric 6 Forensic Pathology is a branch of pathology that deals 7 with the diseases of infants and children and as such, is 8 part of the clinical discipline of pathology. 9 Whereas forensic pathology forms a better 10 framework or a better structure upon which to deal with 11 issues related to the violent death of children. 12 MS. LINDA ROTHSTEIN: Okay. 13 Commissioner, we're more or less on schedule -- 14 COMMISSIONER STEPHEN GOUDGE: Can I ask 15 just two (2) questions before we adjourn? 16 In terms of the continuing education for 17 your forensic pathologists that you described, is any of 18 that compulsory, or is that all voluntary? 19 DR. MICHAEL POLLANEN: Voluntary. 20 COMMISSIONER STEPHEN GOUDGE: And how 21 well do you attract 100 percent attendance? Probably no 22 better then lawyers, for continuing education. 23 DR. MICHAEL POLLANEN: I would say that 24 the -- the attendance is moderate. 25 COMMISSIONER STEPHEN GOUDGE: Okay. And
2451 then as to the Royal College, you say next summer they're 2 going to begin certifying in forensic pathology? 3 DR. MICHAEL POLLANEN: Well, next summer 4 I've recruited two (2) Fellows to start training in our 5 centre. 6 COMMISSIONER STEPHEN GOUDGE: And their 7 certification will come at the end of your training? 8 DR. MICHAEL POLLANEN: Yes. 9 COMMISSIONER STEPHEN GOUDGE: And that's 10 the first in Canada? 11 DR. MICHAEL POLLANEN: Well, I should not 12 speak too quickly. The Royal College is still in the 13 process of finalizing all of the details, but our intent 14 is to hire the two (2) Fellows in the summer, and then 15 once they are finished their year of forensic training, 16 they will be eligible to sit the examination. 17 COMMISSIONER STEPHEN GOUDGE: Okay, thank 18 you. Thanks, Ms. Rothstein. 19 MS. LINDA ROTHSTEIN: Thank you, 20 Commissioner. 21 COMMISSIONER STEPHEN GOUDGE: So we're 22 adjourned until tomorrow at 9:30. Thank you all very 23 much. 24 25 --- Upon adjourning at 4:30 p.m.
2461 2 Certified correct, 3 4 5 6 7 ______________________ 8 Rolanda Lokey, Ms. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25