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 13th, 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 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 ) 14 Grant Hoole ) 15 16 William Carter ) Hospital for Sick Children 17 Barbara Walker-Renshaw ) 18 Kate Crawford ) 19 Paul Cavalluzzo ) Ontario Crown Attorneys' 20 Association 21 22 Mara Greene (np) ) Criminal Lawyers' 23 Breese Davies ) Association 24 Joseph Di Luca ) 25
31 APPEARANCES (CONT'D) 2 James Lockyer ) 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 ) 9 10 Louis Sokolov (np) ) Association in Defence of 11 Vanora Simpson (np) ) 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 (np) ) 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 4 MICHAEL SVEN POLLANEN, Resumed 5 BARRY MCLELLAN, Resumed 6 7 Continued Examination-In-Chief by Ms. Linda Rothstein 6 8 9 10 11 Certificate of transcript 229 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:37 a.m. 2 3 COMMISSIONER STEPHEN GOUDGE: Good 4 morning. We are all set to proceed, Ms. Rothstein? 5 Today I propose to take the lunch break 6 from 1:00 to 2:15, so I hope that doesn't inconvenience 7 anybody, it's just fifteen (15) minutes back from where 8 we normally are. 9 10 MICHAEL SVEN POLLANEN, Resumed 11 BARRY MCLELLAN, Resumed 12 13 CONTINUED EXAMINATION-IN-CHIEF BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: Thank you. Drs 15 Pollanen and McLellan have even more documentation in 16 front of them as do you, Commissioner. Our efforts to go 17 paperless are not entirely successful, but hopefully 18 we'll be able to manage today. 19 Dr. Mc -- Dr. Pollanen, I need you to turn 20 to the general topic that you and I were discussing at 21 the close of your evidence yesterday, the issue about how 22 much pediatric knowledge one needs to do pediatric 23 forensic pathology as compared with forensic expertise. 24 Can you assist us to begin with when it 25 was that you recall first doing pediatric forensic cases?
71 DR. MICHAEL POLLANEN: In the Province of 2 Ontario about -. about 2003, 2004. 3 MS. LINDA ROTHSTEIN: And before that did 4 you have experience in another jurisdiction? 5 DR. MICHAEL POLLANEN: Yes, in 6 Washington, DC. 7 MS. LINDA ROTHSTEIN: And did you, 8 therefore, take any specialized training in pediatric 9 pathology before you commenced doing pediatric forensic 10 cases? 11 DR. MICHAEL POLLANEN: No. 12 MS. LINDA ROTHSTEIN: Do you think it's 13 necessary? 14 DR. MICHAEL POLLANEN: It may be helpful 15 in some cases. If you look at the -- the spectrum of 16 medical/legal autopsies on pediatric cases it runs a very 17 large spectrum from cases that are clearly homicidal, 18 cases that fall into this criminally suspicious category 19 which at the end of the post-mortem or death 20 investigation might be homicidal or not and then you have 21 accidents and then a large category of natural deaths and 22 undetermined deaths. 23 And it would be fair to say that you -- 24 with this spectrum there's a different range of expertise 25 that is best positioned depending where you are on the
81 spectrum. So, for -- as a concrete example if you have a 2 baby that's died suddenly and unexpectedly with an 3 undetected congenital heart disorder, then it may come 4 into the forensic pathologist's environment but in fact 5 the best pathologist to deal with the issues would in 6 fact be the pediatric pathologist with cardiovascular 7 pathology expertise. 8 And that is a recurring theme in forensic 9 pathology because forensic pathology is a great equalizer 10 in death. In other words, people die from several 11 different types of manners and causes but they filter 12 into the forensic environment, and one of the jobs of the 13 forensic pathologist is to sort through those cases using 14 a forensic framework. 15 And it may be that in that process you 16 identify, for example, congenital heart disease, and 17 would obtain consultation from the pediatric forensic 18 pathologist. Or for example in the model that we 19 currently have in the Province of Ontario, the pediatric 20 forensic pathologist takes the lead in the first 21 instance. 22 Contrast this to cases which are clearly 23 homicidal or criminally suspicious. In those 24 circumstances the forensic pathologist is -- is better 25 able to deal with the issues and I think that's self-
91 evident. 2 The -- the sort of third interesting point 3 along this spectrum is the concept of double-doctoring 4 which is an approach that's been used in the United 5 Kingdom and to some extent Australia. And in that 6 approach it's a compromise or hybridization of the 7 forensic pathology approach and the pediatric pathology 8 approach where the autopsy is done essentially by two (2) 9 pathologists collaborating together. And this is a way 10 of recognizing that the pediatric pathologist and the 11 forensic pathologist both bring something unique to the 12 case. 13 COMMISSIONER STEPHEN GOUDGE: Can I ask a 14 question, Dr. Pollanen, about this. Using your five (5) 15 steps in the autopsy yesterday is it possible to say that 16 the specialized, in this case, pediatric knowledge is 17 most applicable at step 4, that is at the ancillary 18 testing point rather than the either external examination 19 or internal examination of the body? Or is that an 20 overgeneralization? 21 DR. MICHAEL POLLANEN: It's probably an 22 overgeneralization but it is interesting because much of 23 the time the value that the pediatric pathologist adds is 24 in fact at the histology step, so -- and that is in the 25 ancillary testing step.
101 For example, I've had cases that have 2 presented to me in a forensic environment, and while I 3 consider myself an able histopathologist, I will actually 4 go and show the slides to a pediatric pathologist to get 5 their view and their opinion on the matter. And that, in 6 my practice, typically happens at -- at step 4, as it 7 were. 8 Conversely, when I've been called by a 9 pediatric pathologist to address issues, it's usually at 10 step 3, sometimes at step 2. 11 So that -- it probably does divide along 12 those lines to some extent. 13 COMMISSIONER STEPHEN GOUDGE: But not 14 start -- 15 DR. MICHAEL POLLANEN: Correct. 16 MS. LINDA ROTHSTEIN: Dr. Pollanen, does 17 it follow from that analysis, that if one could be 18 confident at the front end at the autopsy stage, that 19 this was properly categorized as a criminally suspicious 20 or homicidal death, that one would call on someone with 21 forensic training as opposed to pediatric training to do 22 that autopsy? 23 DR. MICHAEL POLLANEN: Yes. And I -- I 24 think that -- that is supported by the concepts that I've 25 indicated, with the proviso that the lines of
111 communication are open between the forensic pathologist 2 and the pediatric pathologist. 3 Because one thing that is extremely 4 important in death investigation and something that I 5 hope came out yesterday, was that this is a multi- 6 disciplinary team. And at different points in the 7 process different professionals will have more 8 determinative involvement. 9 And part of the -- the job of the forensic 10 pathologist in the autopsy, is to recognize how to 11 harness other disciplines. I'll give you an example of 12 that. Sometimes in skeletonized bodies, I will ask a 13 forensic anthropologist to give an opinion on a case. 14 And in fact, in many skeletonized bodies, the forensic 15 anthropologist is the lead, because the issues surround 16 things like identification, age, and sex which are 17 derived from analysis of the bones. 18 And in that circumstance the forensic 19 pathologist and the forensic anthropologist essentially 20 double doctor the case in -- in the way that I've talked 21 about in the pediatric autopsy. 22 MS. LINDA ROTHSTEIN: And if you can 23 focus on the gross examination, and the internal 24 examination steps in the autopsy, 2 and 3 on your list, 25 is the conduct of a pediatric autopsy more difficult then
121 an adult one? A layperson's question, I suppose. 2 DR. MICHAEL POLLANEN: Well, the -- the 3 actual procedures are essentially the same, except for 4 the addition of certain procedures that we don't use in 5 adult autopsies frequently, such as removal of the eyes. 6 So the -- so the mechanics are the same, but the -- the 7 scale is different. So that does present some challenges 8 with the scale. 9 So, for example, there is -- the 10 dissection of the posterior neck is quite a delicate 11 affair in -- in the child versus the adult, which is -- 12 muscles are larger, the bones are larger. So there -- 13 there are some additional technical considerations that 14 come on that basis. 15 MS. LINDA ROTHSTEIN: And am I right in 16 understanding that the new guidelines that have been put 17 in place for the conduct of those pediatric autopsies 18 actually mandate that it's the pathologist and not just 19 the pathology assistant that's to undertake most of the - 20 - the cutting work of the autopsy? 21 Is that right? 22 DR. MICHAEL POLLANEN: The -- yes, the 23 critical forensic dissections should be done by the 24 forensic pathologist. 25 MS. LINDA ROTHSTEIN: And what's the
131 reason for that, Dr. Pollanen? 2 DR. MICHAEL POLLANEN: Well, there are -- 3 there are two (2) reasons among several. The first is 4 seeing things with your own eyes, and the second and 5 probably more important is the fact that sometimes these 6 dissections produce artifacts. And that is they alter 7 the tissues in a way that may mimic injury. 8 And if you've done the dissection 9 yourself, you are more able to recognize those pitfalls. 10 The -- the common one being, for example, removal of the 11 neck organs. If the neck organs are removed by an 12 assistant, and the process is perhaps a little rough, the 13 highway hyoid bone might be fractured. 14 And if the -- if the pathologist is then 15 presented with the neck organs for dissection, and you 16 have a fractured hyoid bone, there -- that leaves to -- 17 leads to considerable difficulties if, for example, the 18 other parts of the autopsy demonstrate death by heart 19 attack. 20 So these are -- these are part of the 21 reasons that we like the forensic pathologist to 22 undertake those critical dissections. 23 MS. LINDA ROTHSTEIN: All right. Thank 24 you, very much. 25 Commissioner, at this stage I propose to
141 turn away from the legal framework for criminal death 2 investigation and the organization guidelines, procedures 3 and -- and matters that Dr. Pollanen and Dr. McLellan 4 have given evidence thus far and we heard detailed in 5 OCCO's Institutional Report, and introduce the eighteen 6 (18) overview reports, which I made mention of yesterday, 7 and which have been prepared by Commission Counsel and 8 staff. 9 Late last evening, we were able to 10 finalize the last two (2) of those eighteen (18) which 11 will now form part of your record. I pause to reiterate 12 the gratitude of Commission Counsel to the spirit of 13 cooperation that was necessary to work through the 14 suggestions for revisions, additions and deletions that 15 we received from all parties and their counsel. 16 And I believe, Commissioner, that it's 17 important to note that we anticipate additions to at 18 least some of these reports as new documents are 19 incorporated into our database and redacted, as 20 necessary. 21 It is also important for me to underline 22 again that the overview reports contain a significant 23 amount of information that has not been tested for its 24 truth, and may or may not be based on accurate facts. 25 Most of the reports now have a PFP number.
151 If you want the specifics, I'm going to have to call one, 2 my co-counsel, Mr. Centa, but they certainly will by 3 tomorrow. Parties may use these reports to examine 4 witnesses instead of referring to source documents, where 5 that makes sense. And, in this way, we hope that they 6 can expedite their examinations. 7 And, finally, Commissioner, on the subject 8 of overview reports, you have asked me to emphasize that 9 you will, indeed, read them all thoroughly. And when I 10 begin taking Dr. McLellan to various passages of those 11 reports today, and latterly to Dr. Pollanen, in an effort 12 to establish the chronological context, Counsel and their 13 clients must not infer that I or you think that these are 14 the most important paragraphs or the only paragraphs that 15 bear on an issue, but, rather, that we hope it will be a 16 way to present the evidence chronologically. 17 You have urged me to explain to all 18 counsel that they need not need feel compelled at this 19 stage to direct you to other paragraphs or pages of these 20 reports which they believe properly contextualize the 21 events. 22 COMMISSIONER STEPHEN GOUDGE: Thank you. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: So, Dr. Pollanen,
161 just -- just to talk about Dr. Smith and your involvement 2 with him prior to your very significant involvement in 3 conduct at the Chief Coroner's Review. 4 Can you tell us when you recall first 5 meeting him? Can you give us a year at least? 6 DR. MICHAEL POLLANEN: I can't give you a 7 year. Some time ago. Many years ago. My contact was 8 largely informal with Dr. Smith. 9 MS. LINDA ROTHSTEIN: And between the 10 years 1995 and 2001, can you assist us with the extent of 11 your involvement with him? Did you ever attend autopsies 12 with him? Him with you? Can you elaborate for us 13 please? 14 DR. MICHAEL POLLANEN: I think my -- my 15 principal involvement with Dr. Smith would be when I was 16 at The Hospital for Sick Children in the -- I think it 17 was then called the Department of Pathology -- and there 18 were a series of rounds that would be given in the 19 hospital, so I would sometimes attend those rounds, and 20 Dr. Smith would be present at those rounds. 21 And I do remember having several free- 22 ranging discussions with Dr. Smith in his office, you 23 know, regarding many issues, essentially centred around 24 forensic medicine, but they tended to be sort of broad- 25 reaching beyond that.
171 MS. LINDA ROTHSTEIN: At what stage of 2 your career were you at when you had these informal 3 discussions with Dr. Smith? 4 DR. MICHAEL POLLANEN: Largely training. 5 MS. LINDA ROTHSTEIN: All right. And, to 6 answer my specific question, do you recall ever attending 7 an autopsy that Dr. Smith conducted? 8 DR. MICHAEL POLLANEN: No. 9 MS. LINDA ROTHSTEIN: Do you recall him 10 ever attending an autopsy that you conducted? 11 DR. MICHAEL POLLANEN: No. 12 MS. LINDA ROTHSTEIN: Do you recall ever 13 looking under the microscope with Dr. Smith? 14 DR. MICHAEL POLLANEN: Perhaps once or 15 twice but not regularly. 16 MS. LINDA ROTHSTEIN: Dr. McLellan, I'm 17 going to turn to your involvement with Dr. Smith prior to 18 2001. We know that you started as a coroner in '93 and 19 you made your way up through the regional supervising 20 position. 21 Can you assist us prior to 2001, in 22 general terms, about the extent of your relationship with 23 him, if any? 24 DR. BARRY MCLELLAN: I do not recall 25 meeting Dr. Smith prior to joining the office full time
181 in December of 1998, and I expect that we would likely 2 first have met sometime during 1999. I do recall meeting 3 Dr. Smith at rounds at the -- in the Forensic Pathology 4 Unit sometime in 1999; that may or may not have been the 5 first time. 6 MS. LINDA ROTHSTEIN: When was it, Dr. 7 McLellan, that any concerns either about the conduct or 8 performance of Dr. Smith or the timing of his reports 9 first came to your attention? 10 DR. BARRY MCLELLAN: I recall colleagues, 11 other regional supervising coroners, raising concerns 12 about the timeliness of Dr. Smith's reports being 13 received through 1999 and 2000. 14 MS. LINDA ROTHSTEIN: And those 15 colleagues were in what position, Dr. McLellan? 16 DR. BARRY MCLELLAN: These are other 17 regional supervising coroners. At that time, I was the 18 Regional Supervising Coroner for Northeastern Region. 19 This would be one (1) of the other eight (8) regional 20 supervising coroners. 21 MS. LINDA ROTHSTEIN: And can you assist 22 us at all as to the manner in which they expressed those 23 concerns to you; was it casual conversation; was it 24 meetings of the Regional Supervising Coroners? 25 What do you recall about that?
191 DR. BARRY MCLELLAN: I don't recall 2 specific conversations. I do recall the matter being 3 raised at a regional supervising coroners' meeting. I 4 can't say whether that was in 1999 or in 2000. 5 MS. LINDA ROTHSTEIN: Did you ever have a 6 case, Dr. McLellan, in which Dr. Charles Smith was the -- 7 the pathologist who conducted the post-mortem 8 examination? 9 DR. BARRY MCLELLAN: Yes. 10 MS. LINDA ROTHSTEIN: And did you have 11 any contact with him in that capacity? 12 DR. BARRY MCLELLAN: I don't recall the 13 first time that I spoke to Dr. Smith about a case and 14 that it may have been a case where he was the 15 pathologist. The case originated before I started in 16 December of 1998, and an issue may have arisen in 1999 or 17 2000, but I do recall speaking with Dr. Smith over the 18 telephone from my office in Bracebridge about at least 19 one (1) case. Again, whether that was 1999 or 2000, I 20 don't recall. I don't recall the specific case at this 21 time. 22 MS. LINDA ROTHSTEIN: Did you form any 23 impression of him at that time? 24 DR. BARRY MCLELLAN: I would say no 25 impression that I can recall at this date, no.
201 MS. LINDA ROTHSTEIN: And Dr. McLellan, 2 did I hear you suggest that some issue arose with respect 3 to one (1) case that Dr. Smith was engaged in in the 4 '99/2000 period or did I misunderstand you there? 5 DR. BARRY MCLELLAN: Not -- I didn't 6 indicate, I believe, it was an issue. I just recall 7 dealing with Dr. Smith over a case, as I would speak to 8 many other pathologists and other professionals about 9 cases. 10 MS. LINDA ROTHSTEIN: So from your 11 perspective, to the extent that you recall Dr. Smith 12 actually being involved as the pathologist on one of your 13 cases, did you have any concerns about his performance? 14 DR. BARRY MCLELLAN: The only concern 15 that I had at some point and, again, I can't say now 16 whether this was -- whether -- when I was a regional 17 supervising coroner for Northeast Ontario or down in the 18 Greater Toronto area east -- was around timeliness. And 19 that I do recall having a specific concern where a family 20 member was looking for an autopsy report, and I was 21 concerned about how long it had taken for the report to 22 be completed. 23 MS. LINDA ROTHSTEIN: And do you have any 24 recollection as to how long it did take for that autopsy 25 report to be completed?
211 DR. BARRY MCLELLAN: I don't. 2 MS. LINDA ROTHSTEIN: And you've given us 3 some evidence yesterday about the timing issues, 4 generally. 5 Do you recall coming to the conclusion 6 that Dr. Smith was taking longer you had experienced 7 other pathologists to take to complete your post-mortems? 8 DR. BARRY MCLELLAN: Yes, I know I 9 certainly reached that point by January of 2002 -- and I 10 know we're moving ahead at this particular time -- 11 because I did meet with Dr. Smith over this specific 12 concern. So I certainly reached that opinion prior to 13 that. I can't tell you exactly when it was. 14 MS. LINDA ROTHSTEIN: All right. Well, 15 let's -- let's talk about January, 2001, for a moment, 16 Dr. McLellan. Commissioner, you'll -- you don't have to 17 turn up the page, but you will note that in the Tyrell 18 overview report at paragraph 136, we record that on 19 January the 23rd of 2001 the charges against -- the 20 charges against the caregiver in the death of Tyrell were 21 withdrawn or stayed, and that in the Reynolds over report 22 at paragraph 825 on January 25th, 2001, two (2) days 23 later, the charges that had been filed against Ms. 24 Reynolds in the death of her daughter were withdrawn by 25 the Crown.
221 We also know -- and this is really to 2 assist your recollection, Dr. McLellan -- that on January 3 the 25th of 2001, Dr. Smith wrote to Dr. Young requesting 4 that he be excused from the performance of medico-legal 5 autopsies. 6 May we have 127457, please. And Dr. 7 McLellan, you can look at tab 24 of your document, 8 briefly. 9 I understand that many of the monitors 10 have been shut off and I ask counsel to turn on their 11 monitors. 12 COMMISSIONER STEPHEN GOUDGE: That may 13 tax many of them. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Now, at this stage, 17 just to remind all of us, Dr. McLellan, you pulled the 18 position of Metro East Regional Supervising Coroner, if I 19 have the chronology correctly? 20 DR. BARRY MCLELLAN: That's correct. 21 MS. LINDA ROTHSTEIN: And can I start 22 with the decision to withdraw the charges in the death of 23 Tyrrell, did you have any role in that whatsoever, Dr. 24 McLellan? 25 DR. BARRY MCLELLAN: No.
231 MS. LINDA ROTHSTEIN: And the decision to 2 withdraw the charges against Ms. Reynolds in the death of 3 her daughter, Sharon, did you have any role in that 4 decision, Dr. McLellan? 5 DR. BARRY MCLELLAN: No. 6 MS. LINDA ROTHSTEIN: And then looking at 7 this letter, dated January 25th, 2001 addressed to Dr. 8 James Young as the Chief Coroner, were you aware that Dr. 9 Smith wrote this letter to Dr. Young on that date? 10 DR. BARRY MCLELLAN: I was aware that the 11 letter was written and received; I can't say whether it 12 was that day or the following date. I am aware that I 13 attended a meeting where the fact was discussed that Dr. 14 Smith had requested to be excused, but I'm not sure I 15 actually saw the letter. 16 MS. LINDA ROTHSTEIN: Were you involved 17 in any discussions that may have occurred between Dr. 18 Young and Dr. Smith which resulted in this letter? 19 DR. BARRY MCLELLAN: I remember after it 20 became clear that in the case of Sharon and Tyrrell that 21 charges had been withdrawn or -- or stayed, that there 22 was concern expressed and I recall having a discussion 23 with at least Drs Young and Cairns where we all expressed 24 concern. I don't know who exactly was present at the 25 meeting where Dr. Young reviewed this with Dr. Smith. I
241 can say I was not present. 2 MS. LINDA ROTHSTEIN: And you have made 3 note of a meeting that occurred in that approximate time 4 frame. If you would be good enough to turn to Volume II, 5 Tab T, and Mr. Registrar, would you turn up 139736, 6 please? It's at the back. It's one of the new tabs, Dr. 7 McLellan. 8 9 (BRIEF PAUSE) 10 11 MS. LINDA ROTHSTEIN: I understand, 12 Commissioner and Dr. McLellan, that these notes were made 13 by Mr. Al O'Marra, who I understand, Dr. McLellan, was at 14 the time the Chief Legal Counsel to the Office of the 15 Coroner? 16 DR. BARRY MCLELLAN: That's correct. 17 MS. LINDA ROTHSTEIN: And these came from 18 his file and they are still in his handwriting and 19 regrettably for all of us, have not yet been transcribed 20 by him; early days. But they appear to record a meeting 21 that took place on the 26th of January of 2001 and if I'm 22 not mistaken, Dr. McLellan, you are listed at the top, 23 "Barry MCL", as being present at that meeting? 24 DR. BARRY MCLELLAN: Correct. 25 MS. LINDA ROTHSTEIN: I asked you last
251 evening to take a look at these notes. First of all, can 2 I start with a simple question, Dr. McLellan. 3 Looking at these notes does that assist 4 you in recalling the fact of this meeting? 5 DR. BARRY MCLELLAN: It does not. 6 MS. LINDA ROTHSTEIN: Do you remember 7 that there was a meeting of this approximate time frame 8 at which you, it would appear, Dr. Cairns, Dr. Young, and 9 others were in attendance to discuss the fact of the 10 withdrawal of the case against Ms. Reynolds and in the 11 Tyrell matter, among other things? 12 DR. BARRY MCLELLAN: I recall meetings of 13 the Regional Supervising Coroners where this matter was 14 discussed. It appears similar -- it appears that it was 15 similar content that was discussed at those meetings as 16 was discussed at this meeting. It was the facts that the 17 charges had been withdrawn, that Dr. Smith had requested 18 an external review of his work. 19 I don't recall this particular meeting but 20 the content, as I can read it, appears consistent with 21 other meetings that were taking place in and around at 22 the time. 23 MS. LINDA ROTHSTEIN: But just -- just 24 stopping for the moment on who was at this meeting. Am I 25 right in concluding, Dr. McLellan, that the persons at
261 this meeting were not all of the regional supervising 2 coroners? 3 Is that correct? 4 DR. BARRY MCLELLAN: That's correct. 5 MS. LINDA ROTHSTEIN: You were one and so 6 the question arises, Dr. McLellan, why you would have 7 been included in this meeting? 8 Do you have an explanation for that? 9 DR. BARRY MCLELLAN: I -- I don't have an 10 explanation that I can rely upon at this point. I can 11 tell you when matters come up at the office it's not at 12 all uncommon for those who are present in the office to 13 gather in the boardroom and to discuss them. 14 Now, when I look at who is listed as being 15 in attendance here -- these are all people who work at 16 the head office. I was the Regional Supervising Coroner 17 for Greater Toronto Area East so I was working in the 18 office, so I can't really assist beyond that, except to 19 say that based on the initials at the top, it appears 20 that the meeting included the Deputies, the Chief 21 Forensic Pathologist, the, at times Barry Blenkinsop who 22 had the lead for the forensic pathology assistants, Al 23 O'Marra; I'm assuming "Jeff" means Jeff Mainland who was 24 an assistant. 25 So it would include most of the senior
271 personnel in the office who would likely have been 2 present at the time. 3 MS. LINDA ROTHSTEIN: Registrar, can you 4 turn to 055831, please? And, Dr. McLellan, back to 5 Volume I, Tab 25? 6 DR. BARRY MCLELLAN: Just -- while I'm 7 moving backwards I was trying to figure out who "BL" 8 might be. I assume that probably was Bill Lucas and he 9 was the other regional supervising coroner covering the 10 west half of the Greater Toronto Area. 11 MS. LINDA ROTHSTEIN: So it -- would it 12 be fair to me -- for me to conclude from that, that it 13 was those that actually worked out of the Granville 14 Office in senior positions that were in attendance at 15 that meeting? 16 DR. BARRY MCLELLAN: Again, that's the 17 best explanation I can come up with today, again 18 emphasizing I don't actually have recollection of this 19 particular meeting taking place. Sorry, Tab 25? 20 MS. LINDA ROTHSTEIN: Tab 25. We've 21 spoken of this. This occurs on the same day. It is an 22 excerpt from The Kingston Whig-Standard. And I can tell 23 you, Commissioner, that thus far, this is the best record 24 we have of Dr. Young's announcement on that day. 25 Turning to the last line, it's recorded
281 that Young said he decided Wednesday, when he learned 2 that the Crown would withdraw the murder charge, that an 3 internal review was needed. This is in relation to Ms. 4 Reynold's case. 5 So, can I ask you the simple question, Dr. 6 McLellan, did you have any role whatsoever in the 7 discussions which led Dr. Young to announce that an 8 internal review would be conducted? 9 DR. BARRY MCLELLAN: Not that I recall. 10 MS. LINDA ROTHSTEIN: Now, we know that 11 at some point, and we'll ask Dr. Young about this, he 12 determined that the review would not go ahead because of 13 legal advice that he received and as I say, Commissioner, 14 we'll get that from those who have firsthand knowledge. 15 My question for you, Dr. McLellan, is did 16 you have any role in making the decision that Dr. Young 17 ultimately made to put on hold the review that he had 18 announced in January? 19 DR. BARRY MCLELLAN: I have no 20 recollection of participating in any such discussions. 21 MS. LINDA ROTHSTEIN: And I take it, Dr. 22 McLellan, that that would -- it would be unlikely that 23 someone who was still in the Senior Regional Supervisor 24 position to be consulted about such a decision; is that 25 fair?
291 DR. BARRY MCLELLAN: It's not quite that 2 simple in that the -- the office is fairly small, and it 3 is not at all uncommon when conducting day-to-day 4 business for someone to drop by and have a discussion 5 with someone else in their office. 6 Now I have no recollection of any of this 7 taking place; the discussion around an external review 8 not proceeding, but again, it's a small office 9 environment and to be fair, people were frequently having 10 informal discussions. 11 MS. LINDA ROTHSTEIN: So if we can move 12 forward then chronologically from May of 2001, I do 13 understand, Dr. McLellan, that at some point you were 14 asked to become involved in obtaining an external review 15 on the Tamara case? 16 DR. BARRY MCLELLAN: That's correct. 17 MS. LINDA ROTHSTEIN: And if I'm not 18 mistaken, Dr. McLellan, that occurred in April of 2001? 19 DR. BARRY MCLELLAN: That's my 20 recollection. I'm referring to a letter at Tab 26; a 21 letter to my attention from Graeme Dowling, the Chief 22 Medical Examiner in Alberta. And my recollection of my 23 involvement was because I knew Dr. Dowling to request 24 that he assist with reviewing this case, and I recall 25 that it was with a very short -- a request for very short
301 turnaround time. So I noticed that the date is April 2 10th. 3 At this point, unless you can take me to a 4 document, I don't believe I can tell you exactly the day 5 it was sent. 6 MS. LINDA ROTHSTEIN: Okay. Even before 7 we get there, Commissioner, I thought it might assist you 8 to develop the chronology just a little so we can 9 understand the stage at which Dr. McLellan was asked to 10 become involved. You will have the overview report for 11 Tamara's case at Tab 14; Registrar, 143345, paragraph 1, 12 which is on page 4 Registrar, of that same document: 13 "Tamara was born in Scarborough, 14 Ontario, on January 18, 1998. Tamara 15 died on February the 8th, 1999 in 16 Scarborough. She was one (1) year old 17 at the time of her death." 18 Paragraph 2: 19 "Tamara's father was charged with 20 second degree murder arising from her 21 death." 22 I'm going to flip forward to page 64, Dr. 23 McLellan, of your brief; page 67, Registrar, of that same 24 document. And paragraph 163 on May 18, 2000, and you'll 25 understand, Commissioner, I'm skipping ahead a lot.
311 Justice Cole ordered Tamara's father to 2 stand trial for second degree murder. The indictment was 3 filed on June 15, 2000, and the trial was set to commence 4 on April 23rd, 2001 which I think you'll find helpful in 5 recalling, Dr. McLellan. 6 At paragraph 164, the overview report 7 continues: 8 "On February 19, 2001, Crown Attorney 9 Robert Clark wrote to Dr. Jim Cairns, 10 Deputy Chief Coroner, OCCO. Mr. Clark 11 stated, 'This letter will confirm that, 12 given recent developments, your office 13 will review Dr. Smith's report as well 14 as his evidence, and assuming you 15 concur with his opinions, seek an 16 independent opinion from a pediatric 17 pathologist to address credibility 18 issues that may arise at trial. The 19 trial is scheduled to commence on April 20 26th of this year. The Crown would 21 like to be able to reassess the 22 strength of the prosecution case at the 23 earliest possible time.'" 24 And so, Dr. McLellan, that assists us, I 25 believe, in orienting the request that you made of Dr.
321 Dowling in Alberta to provide a review. 2 May we now turn to Tab 26 which, 3 Registrar, is 130016? And, first of all, Dr. McLellan, 4 are we clear that this was the first time in which you 5 had been involved in attaining a second opinion with 6 respect to any work that had been done by Dr. Charles 7 Smith? 8 DR. BARRY MCLELLAN: It's the first 9 information I have in front of me that that was the case, 10 yes. I have no recollection of doing it prior to this. 11 MS. LINDA ROTHSTEIN: And can you assist 12 us as to how you came to select Dr. Dowling to become 13 involved? 14 DR. BARRY MCLELLAN: I knew Dr. Dowling 15 from having met him at previous meetings of the Chief 16 Coroners and Chief Forensic Pathologists in Canada. 17 My understanding is that the request of 18 Dr. Dowling was with, again, very short notice. I 19 appreciate the reference to correspondence from Mr. Clark 20 of February. I recall that when it was brought to my 21 attention, it was closer to the April 10th date when -- 22 when Dr. Dowling has -- has responded. 23 And because I knew him, I was asked to 24 assist with -- because I knew of other Chief Forensic 25 Pathologists who could potentially conduct such a review,
331 I was asked to assist, and I then contacted Dr. Dowling 2 and he kindly agreed to review this -- again, with a very 3 short turnaround time. 4 MS. LINDA ROTHSTEIN: Right. And looking 5 at -- given the short turnaround time, is that the reason 6 why if we look at the penultimate paragraph, he explains 7 that he did not review the autopsy photographs or the 8 histologic glass slides from the autopsy? 9 DR. BARRY MCLELLAN: That would certainly 10 fit with the request for a short turnaround time. 11 MS. LINDA ROTHSTEIN: And as I understand 12 it -- if we can have, Registrar, 081594 -- Dr. Dowling 13 sent a longer opinion to the Toronto Police Services in 14 June of 2001. That's at your Tab 27, Dr. McLellan. 15 DR. BARRY MCLELLAN: Correct. 16 MS. LINDA ROTHSTEIN: And would you have 17 received a copy of that as well, or was your involvement 18 over by June? 19 DR. BARRY MCLELLAN: I don't recall 20 receiving any correspondence on this matter in and around 21 this time, aside from the one (1) letter dated April 10, 22 2001. 23 MS. LINDA ROTHSTEIN: Is it fair to 24 summarize your involvement, then, in this case as 25 facilitating the obtaining of a second opinion from Dr.
341 Dowling and, frankly, little more? 2 DR. BARRY MCLELLAN: Yes. 3 MS. LINDA ROTHSTEIN: If we can then move 4 forward to the following spring, of '02. 5 Am I correct in recalling in your career 6 history, Dr. McLellan, that by that point you were the 7 Deputy Chief Coroner Forensic Advisory Services, in the 8 Spring of '02? 9 DR. BARRY MCLELLAN: That's correct. 10 MS. LINDA ROTHSTEIN: I understand that 11 that was a second occasion in which you were involved in 12 facilitating the obtaining of an opinion -- or second 13 opinion with respect to the work that had been done by 14 Dr. Smith? 15 DR. BARRY MCLELLAN: Correct. 16 MS. LINDA ROTHSTEIN: And do you recall 17 what it was that preceded or initiated -- or 18 precipitated, sorry, your involvement in that particular 19 case? 20 DR. BARRY MCLELLAN: My recollection is 21 that I -- 22 MS. LINDA ROTHSTEIN: And I should say, 23 Commissioner, it's in Jenna's case. 24 DR. BARRY MCLELLAN: My recollection is 25 that, again, I was requested to assist with obtaining
351 another opinion. The request would most likely have come 2 through Dr. Cairns or Dr. Young. I don't have an 3 independent recollection today of who specifically made 4 the request of me, but I did speak with Dr. Dirk Huyer 5 who had some previous involvement with the scan team at 6 The Hospital for Sick Children. 7 Based on the request that was made for 8 someone to review this from a clinical perspective, the 9 individual identified was a Dr. Feldman from Seattle. 10 Now I do have rec -- 11 MS. LINDA ROTHSTEIN: Just before you go 12 any further, I think it might be helpful, Commissioner, 13 if again we were able to place this slightly in context. 14 15 (BRIEF PAUSE) 16 17 MS. LINDA ROTHSTEIN: Jenna, you'll 18 recall, Commissioner, was a twenty (20) month -- twenty- 19 one (21) month old girl who died on January 22, 1997, in 20 Peterborough. Again, we do have the overview report for 21 you at Tab 7 of the overview report binders. 22 Sorry, I'm just looking for the new Begdoc 23 which Mr. Centa tells me I've got. 144684, sorry 24 everyone. 25 We know from paragraph 39, Commissioner,
361 that Dr. Smith performed the autopsy on Jenna's body the 2 same day. Paragraph 2 of the overview report records 3 that eight (8) months later, Ms. Waudby was charged with 4 second degree murder on September 18, 1997, in connection 5 with Jenna's death. 6 We know from paragraph 71, Commissioner, 7 that a preliminary inquiry was held in Peterborough, in 8 October of 1998, and that Dr. Smith testified at that 9 preliminary inquiry, that's paragraph 72, Commissioner. 10 Ms. Waudby was committed for trial at a -- 11 at paragraph 81. Following the preliminary inquiry, Ms. 12 Waudby's defence counsel consulted with several medical 13 experts that disagreed with Dr. Smith. I'm reading from 14 paragraph 82: 15 "After the preliminary inquiry, Mr. 16 Hauraney consulted with several medical 17 experts on the issue of the timing of 18 Jenna's injuries." 19 The experts consulted were Dr. Sigmund 20 Ein, Dr. Peter Fitzgerald, Dr. Ken Finkle, and Dr. Chitra 21 Rao was never drafted the report. 22 They all challenged the testimony of Dr. 23 Smith as to the timing of the fatal injuries and 24 suggested that the injuries were more likely sustained 25 within hours of Jenna's death.
371 On June 11th, 1999 Ms. Waudby pleaded 2 guilty to a charge of child abuse in relation to an 3 incident that took place two (2) days prior to Jenna's 4 death and which was unrelated to Jenna's death. And 5 you'll find that, Commissioner, at paragraphs 100 and 6 101. 7 And on June 15th, 1999 the Crown withdrew 8 the se -- charge of second degree murder. That is 9 paragraph 2. 10 If I could then direct you, Commissioner, 11 to paragraph 124 and help to orient us with respect to 12 Dr. McLellan's involvement. And I don't know if this 13 going to work, Mr. Registrar, but I'm now at 144984. 14 COMMISSIONER STEPHEN GOUDGE: He's got 15 the right -- 16 MS. LINDA ROTHSTEIN: 144984. Anyway, 17 we'll see. But you have it, Commissioner? You have a 18 document -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Great. Paragraph 23 124. On July 11, 2001 Police Chief, Terrence McLaren of 24 the Peterborough Lakefield Community Police Service 25 assigned Detective Constable Charmley to review the prior
381 investigation. 2 The purpose of the review was to have 3 someone not involved in the initial investigation take a 4 fresh and unbiased look at everything to see if there was 5 anything else that could be done. 6 Moving along to paragraph 129. He gave -- 7 his efforts are reported. Until then, Detective 8 Constable Charmley felt that there needed to be an 9 independent review of the medical information to 10 determine what information could be relied on. 11 Now, I see I've gotten ahead of myself on 12 the timing, sorry, everybody. 13 Okay, sorry, that -- that comes later. 14 And next stop -- I'd lost my own thread. 15 All right, sorry. You were involved, Dr. 16 McLellan, back in '02 and I've moved us -- oh, no, right. 17 No, I'm still there. 18 Okay. He be -- he began compiling a 19 medical brief to ensure that the expert who reviewed the 20 case had all the information necessary to reach an 21 informed opinion. 22 Paragraph 130. Detective Constable 23 Charmley also reviewed video and photographic evidence 24 from the morgue autopsy which appeared to corroborate Mr. 25 Hauraney's information about a hair having been found in
391 Jenna's vagina. He also reinterviewed the hospital staff 2 that treated Jenna, including Dr. Friesen (phonetic) and 3 the nurses, all of who recalled seeing a hair on Jenna's 4 vagina. 5 Paragraph 131. On September 18, 2001 6 Detective Constable Charmley and Sergeant Tucker -- 7 Senior Staff Sargent Tucker met with Dr. Porter and Dr. 8 Clark at the OCCO. Detective Constable Charmley provided 9 the medical brief to Dr. Porter, along with a videotape 10 that had been taken of Jenna at the morgue prior to 11 autopsy. 12 Now, the mention of Dr. Porter, I believe 13 Dr. McLellan is to Dr. Bonita Porter. 14 DR. BARRY MCLELLAN: I would assume so. 15 MS. LINDA ROTHSTEIN: Okay. And that's a 16 little bit sooner than we've telegraphed your first 17 involvement in this matter to be. 18 Do you recall any involvement back in 19 September of 2001, sir? 20 DR. BARRY MCLELLAN: No. 21 MS. LINDA ROTHSTEIN: Detective Constable 22 Charmley also submitted a list of twenty-five (25) 23 questions that he was seeking to have answered. Dr. 24 Porter advised that the task of assigning the review and 25 to give it to Dr. Cairns and Dr. Main -- and Mr.
401 Mainland. 2 You've told us Mr. Mainland was pathology 3 of the OCCO. 4 DR. BARRY MCLELLAN: Yes, at this 5 particular time he was an Executive Assistant working 6 with The Paediatric Death Review Committee and Dr. Cairns 7 specifically. 8 MS. LINDA ROTHSTEIN: All right. And 9 then it mentions you, Dr. McLellan. 10 "Dr. Barry McLellan, Acting Chief 11 Coroner, and Mr. Mainland subsequently 12 asked Dr. Ken Feldman, Pediatrician and 13 Scan Consultant, Children's Hospital 14 and Regional Medical Centre in Seattle, 15 Washington to review the case of Jenna. 16 His report was ultimately released on 17 April 17th, 2002." 18 So, it would appear that as a result of 19 those additional efforts that were made to reopen the 20 case, that you were ultimately asked to become involved 21 and solicit some assistance from Dr. Feldman. 22 Is that fair, Dr. McLellan? 23 DR. BARRY MCLELLAN: I'm just checking 24 one (1) fact here. 25
411 (BRIEF PAUSE) 2 3 DR. BARRY MCLELLAN: I think, overall, 4 it's a minor detail, but I was just trying to go through 5 my CV. My recollection is that I became the Acting Chief 6 Coroner in June of 2002 which would not fit with the 7 timing of my request; but I don't think anything is 8 turning on that at this moment. 9 MS. LINDA ROTHSTEIN: I noted that as I 10 went through it because you and I had established that, 11 at this stage, you were, in the Spring of '02, the Deputy 12 Chief Coroner, Forensic Advisory Services, but not yet 13 the Acting Chief Coroner. 14 DR. BARRY MCLELLAN: Yes. It's Forensic 15 Services, not Forensic Advisory Services -- 16 MS. LINDA ROTHSTEIN: Sorry. 17 DR. BARRY MCLELLAN: -- but that -- that 18 is correct. So, yes, this does fit with the context of 19 me having been requested to assist with finding an expert 20 to review the -- the case. And at Tab 28, there is an 21 email message that I sent to Dr. Feldman requesting his 22 assistance. 23 MS. LINDA ROTHSTEIN: Right. And, again, 24 Dr. McLellan, just so we're clear; at the stage that you 25 were asked to get involved in this case, do you remember
421 what background you had? Do you remember what concerns 2 had been expressed to you about the handling of the case 3 thus far? 4 DR. BARRY MCLELLAN: In this case, I 5 remember having reviewed the file and the reason for 6 doing so. I had a background in emergency medicine, as 7 came out yesterday, and one (1) of the requests was 8 whether or not, with my clinical background, I could 9 potentially be of assistance in reviewing this file 10 myself. 11 Based on the age, it very -- I very 12 quickly made the decision this was not in my area of 13 expertise, but I recall at least looking at the file and 14 familiarizing myself with some details. 15 I remember reviewing the autopsy report so 16 I had some information to provide with -- to provide to 17 Dr. Feldman, if requested. So I had some further 18 knowledge at that time than I likely had with the Tamara 19 Thomas case, but that would have been the limit. 20 MS. LINDA ROTHSTEIN: Right. And can you 21 assist us, Dr. McLellan, as to how you came to identify 22 Dr. Feldman as the person who should provide the 23 consulting opinion? 24 DR. BARRY MCLELLAN: The request was for 25 someone who could assist around the issue of timing of
431 death. I remember having some discussions within the 2 office, and Dirk Huyer -- Dr. Huyer became involved as 3 well, and we felt that a specialist who dealt with injury 4 in children may be able to add some value. That's the 5 reason that Dr. Feldman was selected. 6 MS. LINDA ROTHSTEIN: All right. And 7 following the reports that you got from Dr. Feldman, was 8 that the end of your involvement -- 9 DR. BARRY MCLELLAN: I -- 10 MS. LINDA ROTHSTEIN: -- in this -- in 11 this file -- 12 DR. BARRY MCLELLAN: I -- 13 MS. LINDA ROTHSTEIN: -- at this time? 14 DR. BARRY MCLELLAN: In this file, at 15 this time, yes. 16 MS. LINDA ROTHSTEIN: Now, Dr. McLellan, 17 having reviewed the documents in those binders and, 18 indeed, thought about this for some time, are you able to 19 say that the Tamara case and the Jenna case were the only 20 two (2) criminally suspicious cases that -- in which Dr. 21 Smith was involved -- in which you were asked to obtain a 22 review? 23 DR. BARRY MCLELLAN: Those are the only 24 two (2) cases I'm aware of. 25 MS. LINDA ROTHSTEIN: Now, if we talk
441 about the cases in which Dr. Smith did work that are not 2 characterized as either criminally suspicious or 3 homicidal, was there ever a point in which you were 4 involved in reviewing some of those? 5 DR. BARRY MCLELLAN: Yes. And just to 6 return to my previous answer -- we're moving ahead a bit 7 in time here, but I was asked to assist with the review 8 of another case in 2002. That would be the... 9 10 (BRIEF PAUSE) 11 12 MS. LINDA ROTHSTEIN: Dr. McLellan is 13 trying to make sure that he doesn't breach your non- 14 publication order, Commissioner. 15 DR. BARRY MCLELLAN: Just trying to get 16 the first name of the child. 17 MS. LINDA ROTHSTEIN: And there's no 18 problem with your taking a moment just to find that -- 19 COMMISSIONER STEPHEN GOUDGE: Yeah, we -- 20 MS. LINDA ROTHSTEIN: -- case. 21 COMMISSIONER STEPHEN GOUDGE: -- have our 22 glossary there, Dr. McLellan. 23 DR. BARRY MCLELLAN: Yes, we're just 24 trying to look it up. 25 COMMISSIONER STEPHEN GOUDGE: No, that's
451 fine, take a moment. 2 DR. BARRY MCLELLAN: Perhaps, just to be 3 able to move on at this time, there was another case 4 where an autopsy was performed, in and around September 5 of 2002, where Dr. Smith performed the autopsy, and I was 6 asked to find another pathologist to review the case. 7 So, it doesn't fit with this particular time period, and 8 I just, at this time, don't know the first name of the 9 child. I can certainly find it at the break. 10 11 CONTINUED BY MS. ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: All right. We'll 13 find that -- 14 DR. BARRY MCLELLAN: It's a case that you 15 are aware of. 16 MS. LINDA ROTHSTEIN: Okay. I'm not sure 17 I recognized that you were involved in a third case, Dr. 18 McLellan, so at the break you and I will make sure that 19 we cover that off -- 20 COMMISSIONER STEPHEN GOUDGE: And was it 21 a criminally suspicious death? 22 DR. BARRY MCLELLAN: Yes. 23 24 CONTINUED BY MS. ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: So, -- but three
461 (3) would be the total number of criminally suspicious 2 deaths in which you were, in some manner, involved in 3 conducting the review of the work of Dr. Smith? 4 DR. BARRY MCLELLAN: That's correct. 5 MS. LINDA ROTHSTEIN: Was that a 6 dehydration case? 7 DR. BARRY MCLELLAN: Yes. 8 MS. LINDA ROTHSTEIN: All right. So it's 9 not one (1) of the ones that are subject to a non- 10 publication order so you can speak about it out loud, Dr. 11 McLellan. It's not one (1) of our twenty (20). 12 DR. BARRY MCLELLAN: Okay. Well, 13 regardless, it was a dehydration case. It was the only 14 case that I'm aware of that Dr. Smith became involved 15 with that was classified as criminally suspicious after 16 January of 2001. 17 The autopsy was done under circumstances 18 where, as I understand it, another pediatric pathologist 19 could not be found at the time. It was felt appropriate, 20 after, that the case be reviewed, and I assisted with 21 identifying someone to review the case, and at my request 22 the case was reviewed. 23 MS. LINDA ROTHSTEIN: So just to 24 summarize what you've said, because it's a lot, there 25 was, as you understand it, after -- after Dr. Smith sent
471 his letter to Dr. Young in January 2001, he did one (1) 2 criminally suspicious autopsy which was this case of 3 dehydration; is that right? 4 DR. BARRY MCLELLAN: That was the only 5 case, in and around that time, that had been identified 6 as criminally suspicious, correct. 7 MS. LINDA ROTHSTEIN: And you were 8 involved in getting another opinion on that case, as 9 you've described? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: And, Commissioner, 12 it is not one (1) of the twenty (20) that, ultimately, 13 was identified by the international experts in the 14 conduct of the Chief Coroner's review? 15 DR. BARRY MCLELLAN: Correct. 16 MS. LINDA ROTHSTEIN: All right. Moving 17 ahead then to 2003, and your involvement -- or sorry -- 18 DR. BARRY MCLELLAN: I don't believe I 19 actually got to -- 20 MS. LINDA ROTHSTEIN: -- you got -- 21 DR. BARRY MCLELLAN: -- answering your 22 previous questions, yes. 23 MS. LINDA ROTHSTEIN: -- then me finish 24 with the -- the extent to which you were involved in the 25 non-criminally suspicious cases that had been undertaken
481 by Dr. Smith. Could you tell us about that please? 2 DR. BARRY MCLELLAN: I was asked to 3 review files on, to the best of my recollection, two (2) 4 but it could have been three (3) of Dr. Smith's non- 5 criminal cases, in and around this time, as part of what 6 I understood to be an internal review taking place in the 7 office. 8 There was no request for any 9 documentation. I was to report back on any concerns I 10 identified on reviewing the files. I do not have any 11 recollection that this was in the context of a formal 12 review taking place, but I did review, to the best of my 13 recollection, two (2) or maybe three (3) paper files. I 14 don't recall having any concerns. I do not know today 15 which cases those were, but again, they were felt to be 16 uncomplicated, clearly non-homicide, non-criminally 17 suspicious cases. 18 MS. LINDA ROTHSTEIN: So help us with 19 that, Dr. McLellan, who requested that you conduct the 20 review you've just described? 21 DR. BARRY MCLELLAN: I recall that it was 22 Dr. Cairns. It may have been Dr. Young. I don't have an 23 independent recollection of the specific request today. 24 MS. LINDA ROTHSTEIN: And can you assist 25 us at all by estimating a time frame?
491 DR. BARRY MCLELLAN: The length of time 2 to review the files, or when this would have taken place? 3 MS. LINDA ROTHSTEIN: When you were asked 4 to do this. 5 DR. BARRY MCLELLAN: This would have been 6 in 2001, to the best of my recollection. 7 MS. LINDA ROTHSTEIN: Do you remember how 8 long after the January events it was -- 9 DR. BARRY MCLELLAN: I don't. 10 MS. LINDA ROTHSTEIN: -- assist with that 11 as a benchmark. And do you remember reporting to anyone 12 about the conclusions that you reached, if any, following 13 that review? You told us you reached some. 14 DR. BARRY MCLELLAN: Yeah, I do not -- my 15 recollection is that I was asked to report back on any 16 concerns. I don't recall having any concerns, and I 17 don't recall any report back, even orally, following the 18 review. 19 This was a very informal request. 20 MS. LINDA ROTHSTEIN: All right. But 21 having said all of that, Dr. McLellan, did you feel as a 22 emergency physician, that you had the expertise to 23 conduct even that, very limited, internal review on Dr. 24 Smith's work? 25 DR. BARRY MCLELLAN: I did not feel
501 qualified to be reviewing the pathology. I indicated 2 that -- earlier today, that I was aware that there were 3 concerns around issues of timeliness of reports. I 4 considered this more to be of an administrative review, 5 ensuring that in the case it appeared that the 6 appropriate protocol had been followed; that there was a 7 reasonable time for return of the report, those sorts of 8 matters. 9 I did not feel qualified to be reviewing 10 Dr. Smith's pathology. 11 MS. LINDA ROTHSTEIN: And would you have 12 expected that to be known by Dr. Cairns and Dr. Young? 13 DR. BARRY MCLELLAN: Yes. 14 MS. LINDA ROTHSTEIN: All right. That 15 takes us then, in the chronology, Commissioner, Dr. 16 McLellan, to 2003 as we track your involvement, Dr. 17 McLellan and particularly to the involvement that you had 18 in the case of Regina v. Kporwoden. 19 I should tell you, Commissioner, that 20 Commission Counsel have not produced an overview report 21 regarding the case of Baby Athena; a case has been 22 subjected to significant judicial attention, and many 23 findings of fact have already been made. 24 Criminal proceedings, in respect of the 25 death of Athena, terminated on June 23, 2003 when Justice
511 Trafford entered a stay of proceedings on account of 2 unreasonable delay. 3 Justice Trafford issued extensive reasons 4 which have been reported at 2003 176 Criminal Cases of 5 Canada, 3rd 97, and indeed, have been inputted in our 6 database at PFP 014374. 7 The Court of Appeal for Ontario dismissed 8 the Crown's appeal from the Order of Justice Trafford, 9 although the court disagreed with some of Justice 10 Trafford's criticism of, among other things, Crown 11 counsel and the OCCO. 12 That decision is found in our database at 13 PFP 115960. Although no overview report has been 14 prepared, there are some six thousand (6,000) documents 15 in the database that relate to that case, including many 16 of the transcripts from the preliminary inquiry and the 17 trial. 18 Parties are, of course, free to use these 19 documents in their examinations of the witnesses, and I 20 intend to, at least, refer Dr. McLellan to certain 21 aspects of his testimony. 22 Dr. McLellan, you, indeed, testified 23 before Justice Trafford at the trial. The date we have 24 is May 22, 2003; does that accord with your recollection? 25 DR. BARRY MCLELLAN: Yes.
521 MS. LINDA ROTHSTEIN: And, indeed, a 2 transcript of your evidence can be found at Tab 30 and 3 it's at 025665. And your testimony, Dr. McLellan, 4 actually begins at page 11 of that transcript. 5 Just to orient everyone, you, Dr. 6 McLellan, were called by Mr. Mustaphe (phonetic) who was 7 a defence counsel, as I understand it? 8 DR. BARRY MCLELLAN: Yes, my recollection 9 is it was both Mr. Doucette and Mr. Rosen. 10 MS. LINDA ROTHSTEIN: And you were in 11 fact called in the context of the application that had 12 been brought by defence counsel alleging unreasonable 13 delay. 14 DR. BARRY MCLELLAN: Correct. 15 MS. LINDA ROTHSTEIN: And I hesitate to 16 paraphrase your evidence, Dr. McLellan, but as I review 17 it, you indeed recounted the involvement you and I have 18 just gone over, that you had in Tamara's case. 19 DR. BARRY MCLELLAN: Correct. 20 MS. LINDA ROTHSTEIN: And Jenna's case. 21 DR. BARRY MCLELLAN: Correct. 22 MS. LINDA ROTHSTEIN: And the other 23 internal review that you've just described of the non- 24 criminally suspicious cases that had been undertaken by 25 Dr. Smith.
531 DR. BARRY MCLELLAN: Correct. 2 MS. LINDA ROTHSTEIN: I don't propose, 3 then, Dr. McLellan, to have you recite for us what you 4 said before; it's there for the Commissioner to review. 5 So, if I can take you then to the Fall of 6 2003 and ask you to think back to January of 2001. In 7 that period of time did you, Dr. McLellan, have any role 8 in defining the nature and extent of the restrictions 9 that were placed on Dr. Smith's work for the OCCO? 10 DR. BARRY MCLELLAN: No. 11 MS. LINDA ROTHSTEIN: Did you have any 12 discussions with Dr. Smith about concerns about his work? 13 DR. BARRY MCLELLAN: Yes. 14 MS. LINDA ROTHSTEIN: During the period 15 January, 2001 to October, 2003? 16 DR. BARRY MCLELLAN: If -- if including 17 his work, that is including timeliness of his reporting, 18 I did meet with Dr. Smith in and around January of 2002 19 which resulted in a letter that I sent to Dr. Smith at 20 the time. 21 MS. LINDA ROTHSTEIN: All right. 22 DR. BARRY MCLELLAN: I know that's 23 included in the documents. 24 MS. LINDA ROTHSTEIN: Yes, would you find 25 that one because I -- I must say I missed that in my
541 notes, but I know that it's there. Well, we'll find it. 2 We'll find it. Sorry, Dr. McLellan, I've actually missed 3 that one in my notes, but I will find it for you. 4 Can you just orient us as to the purpose 5 of that meeting? 6 DR. BARRY MCLELLAN: Yes, it -- it 7 appears maybe Mr. Centa's assisting you with the document 8 itself, but... 9 MS. LINDA ROTHSTEIN: If we can call up 10 114382. Here we go, January 16th, 2002. 11 DR. BARRY MCLELLAN: So, just because I 12 know it's confusing with respect to different positions I 13 held at different times, as this particular time I was 14 the Deputy Chief Coroner of Forensic Services with 15 administrative responsibilities for Forensic Services, 16 including forensic pathology. 17 With that in mind, I met with Dr. Smith; 18 this was with respect to clerical support for Forensic 19 Services at The Hospital for Sick Children. I was 20 concerned in and around this time, as I indicated earlier 21 today, with the timeliness of Dr. Smith's reports being 22 received. 23 That was the context for a meeting I held 24 with Dr. Smith. This was the letter that followed. I 25 know that there is a second page; I can't recall at this
551 time what's on it. But the suggestion was that steps be 2 taken to improve the -- the level of support in an effort 3 to try to improve the turnaround time of Dr. Smith's 4 reports. 5 MS. LINDA ROTHSTEIN: Please, sir, can we 6 go back to page 1 and I want to just make sure we can 7 clarify a couple of terms? 8 (BRIEF PAUSE) 9 10 MS. LINDA ROTHSTEIN: The second 11 paragraph refers to forensic reports and so we're going 12 to have a little bit of work to make sure everybody 13 understands how we use terminology. And I think 14 Commissioner we'll end up agreeing that not all the 15 players always use it consistently. 16 What sort of report was Dr. Charles Smith 17 still producing in January of 2002 that are characterized 18 there as forensic reports? 19 DR. BARRY MCLELLAN: This would mostly be 20 autopsy reports but it could on occasion include a 21 consultation report; that's the reason for the more 22 general term. And again just to remind you that at this 23 time Dr. Smith was conducting autopsies on non-homicide, 24 non-criminally suspicious cases at The Hospital for Sick 25 Children.
561 MS. LINDA ROTHSTEIN: But so we understand 2 it, they would still be medico-legal reports? 3 DR. BARRY MCLELLAN: Yes. Yes, these are 4 reports arising from coroner's investigations and it may 5 also include a -- beyond an autopsy report, a request for 6 a consultation report. 7 MS. LINDA ROTHSTEIN: So -- but just to be 8 very clear, Dr. McLellan, he was still doing autopsies 9 under coroner's warrant? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: All right. He just 12 wasn't doing autopsies under coroner's warrant in 13 criminally suspicious and homicide cases? 14 DR. BARRY MCLELLAN: Correct. 15 MS. LINDA ROTHSTEIN: And therefore if one 16 uses the term "forensic" to encompass all medico-legal 17 reports. 18 DR. BARRY MCLELLAN: Mm-hm. 19 MS. LINDA ROTHSTEIN: That is to say all 20 reports done under coroner's warrant, then that is -- that 21 is the meaning of "forensic" in your letter? 22 DR. BARRY MCLELLAN: Correct. 23 MS. LINDA ROTHSTEIN: But, Dr. Pollanen, 24 that's not the definition that you gave us yesterday if I 25 recall, where you suggested if I recall where you
571 suggested that it was perhaps appropriate to use the 2 forensic nomenclature to define the smaller subset of 3 criminally suspicious and homicidal deaths? 4 DR. MICHAEL POLLANEN: We use the terms 5 loosely and interchangeably. 6 MS. LINDA ROTHSTEIN: Okay. But -- 7 COMMISSIONER STEPHEN GOUDGE: Yes. In Dr. 8 Smith's letter he asked to be excused from performance of 9 medico-legal autopsies. 10 DR. BARRY MCLELLAN: Yes, there's -- 11 there's terminology that's used interchangeably here and-- 12 COMMISSIONER STEPHEN GOUDGE: But the 13 understanding was he was requesting to be removed from 14 criminally suspicious death autopsies and that's what 15 happened? 16 DR. BARRY MCLELLAN: No. I -- I interpret 17 his request at being excused from doing all coroner's 18 autopsies at that time in January of 2001. And I believe 19 as we go through a chronology, Commissioner, it will 20 become clear that he did start later in 2001 doing 21 coroner's autopsies on cases but it did not include 22 homicide or criminally suspicious cases. 23 COMMISSIONER STEPHEN GOUDGE: I see. So 24 his request was using the correct terminology as you've 25 used it; that is he wanted to be relieved from all
581 coroner's warrant autopsies? 2 DR. BARRY MCLELLAN: Correct. 3 4 CONTINUED BY LINDA ROTHSTEIN: 5 MS. LINDA ROTHSTEIN: But as of January 6 '02 he was in fact doing coroner warrant -- coroner's 7 warrant autopsies again? 8 DR. BARRY MCLELLAN: Correct. 9 MS. LINDA ROTHSTEIN: All right. Did you 10 have any other discussions with Dr. Smith about concerns 11 about his work prior to actually 2004 when you assumed the 12 position of Chief Coroner? 13 DR. BARRY MCLELLAN: Not that I recall. 14 MS. LINDA ROTHSTEIN: All right. And when 15 we get to this issue about defining the nature and scope 16 of the work that Dr. Smith was doing, can I just go back 17 and clarify with you, Doctor McLellan, that you were 18 actually directly involved in making the decisions about 19 which autopsies Dr. Smith should be doing during this 20 period of 2001/2002? 21 DR. BARRY MCLELLAN: That's correct. 22 MS. LINDA ROTHSTEIN: Were you, Dr. 23 McLellan, involved in defining the nature and scope of any 24 review that the OCCO proposed to undertake with Dr. 25 Smith's work, following Dr. Young's announcement in
591 January 2001? 2 DR. BARRY MCLELLAN: No. 3 MS. LINDA ROTHSTEIN: Not until your own 4 involvement as Chief Coroner? 5 DR. BARRY MCLELLAN: Correct. 6 MS. LINDA ROTHSTEIN: All right. And were 7 you involved, Dr. McLellan, in meetings with Crown Counsel 8 to discuss the concerns that either the Ministry of the 9 Attorney General or individual Crown counsel had, with 10 respect to Dr. Smith's involvement in pending criminal 11 matters? 12 DR. BARRY MCLELLAN: Not that I recall. 13 MS. LINDA ROTHSTEIN: Can we then go to 14 again Mr. O'Marra's notes which you will find at Tab U. 15 And, Registrar, if you would turn up 139992, please? 16 17 (BRIEF PAUSE) 18 19 MS. LINDA ROTHSTEIN: We have on that 20 page, and I hope that you had a chance to see our rough 21 attempt at the transcription which we will be happy to 22 circulate to all counsel when we have an opportunity to 23 confirm its accuracy with Mr. O'Marra, but I understand 24 that that records a meeting of October 2, 2003? 25 DR. BARRY MCLELLAN: Correct.
601 MS. LINDA ROTHSTEIN: In which you appear 2 to have been in attendance? 3 DR. BARRY MCLELLAN: Yes. 4 MS. LINDA ROTHSTEIN: And if I can then 5 just orient us all a little bit in terms of October 2003 6 and some of the other events that are reflected in our 7 database, Commissioner, and maybe will assist you, Dr. 8 McLellan. 9 Our database reflects that July 2003 was 10 the last time that Dr. Smith attended a Death Under Two 11 SIDS/SUD's Committee meeting; that's to say that's the 12 last time we found him noted in the minutes. 13 Do you recall any discussion about that in 14 the summer of '03? 15 DR. BARRY MCLELLAN: I don't recall 16 specifically a discussion but I do know that I personally 17 had raised concerns about Dr. Smith's ongoing involvement 18 with committees, with conducting autopsies, and with being 19 the Director of the Unit, in the context of ongoing 20 concerns about his work. 21 MS. LINDA ROTHSTEIN: Who did you raise 22 those concerns with, Dr. McLellan? 23 DR. BARRY MCLELLAN: Dr. Young. 24 MS. LINDA ROTHSTEIN: And do you recall 25 what his response was, sir?
611 DR. BARRY MCLELLAN: I should say both Dr. 2 Young and Dr. Cairns because the specific involvement with 3 the committees -- these were committees that Dr. Cairns 4 was chairing at the time -- with time, Dr. Cairns did take 5 steps and Dr. Smith no longer sat on the Death Under Two 6 Committee or The Paediatric Death Review Committee. He 7 was at the time of this particular meeting, however, still 8 conducting autopsies on non-homicide, non-criminally 9 suspicious cases and he was also still the Director of the 10 Unit at The Hospital for Sick Children. 11 COMMISSIONER STEPHEN GOUDGE: You said you 12 had no involvement with him getting back into the business 13 of coroner's warrant autopsies that were non-criminally 14 suspicious. Who would have cleared that? 15 DR. BARRY MCLELLAN: I can -- I can answer 16 the -- the question. I was not involved myself. 17 COMMISSIONER STEPHEN GOUDGE: Yes, you 18 said that. 19 DR. BARRY MCLELLAN: Who exactly made the 20 decision, whether it was a joint -- I don't know. 21 COMMISSIONER STEPHEN GOUDGE: Be either 22 Dr. Young or Dr. Cairns? 23 DR. BARRY MCLELLAN: Correct. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
621 MS. LINDA ROTHSTEIN: In August 2003, Dr. 2 McLellan, our database reflects that Ms. Waudby, Dr. Smith 3 and the CPSO attended before the panel of the Health 4 Professions Appeal and Review Board in relation to Ms. 5 Waudby's appeal of the CPSO's decision to caution Dr. 6 Smith. 7 Do you remember being a subject of interest 8 or concern at that time? 9 DR. BARRY MCLELLAN: I do not. 10 MS. LINDA ROTHSTEIN: So that takes us 11 then to Mr. O'Marra's notes which appear to reflect, I 12 think you agree with me, a meeting that was held on 13 October 2, 2003, in which Dr. Smith, you, Dr. Young, Dr. 14 Cairns, Dr. Porter and Mr. O'Marra were all in attendance. 15 You looked at Mr. O'Marra's notes and my 16 question is obvious, Dr. McLellan, what do you remember 17 about that meeting? 18 DR. BARRY MCLELLAN: My recollection is 19 that -- again, in the context of ongoing concerns about 20 cases which were continuing to receive media attention, in 21 the context of the decision of Justice Trafford that there 22 were concerns about Dr. Smith continuing to conduct any 23 coroner's autopsies. I had certainly expressed concerns 24 myself, as I indicated earlier this morning. 25 I can't say at this time whether this
631 meeting was precipitated by an event or the totality of 2 the information available, but the meeting would likely 3 have been called by Dr. Young, and he may have more 4 information as to the specific information that lead to 5 him calling the meeting. 6 MS. LINDA ROTHSTEIN: In the last page of 7 that note, our best translation of the report, the 8 following decision by all underlining present can't 9 continue; capital M, hyphen, capital L, PM is capitalized, 10 or committee work, i.e., Death Under Two, or PDRC. 11 COMMISSIONER STEPHEN GOUDGE: Where is 12 this, Ms. Rothstein, I --- 13 MS. LINDA ROTHSTEIN: It's the last page. 14 I'm reading from my transcription of it, Commissioner, 15 which you don't yet have. So, it's on the back. 16 COMMISSIONER STEPHEN GOUDGE: It's on the 17 back page there? 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: That's it. It's 21 139, Registrar, 992 at page 8 of that document. Can you 22 help us with -- 23 COMMISSIONER STEPHEN GOUDGE: Which -- 24 where is it on the page that you -- 25 MS. LINDA ROTHSTEIN: The la -- I'm
641 reading from the very last paragraph with an asterisk just 2 to -- 3 COMMISSIONER STEPHEN GOUDGE: Oh, I see. 4 MS. LINDA ROTHSTEIN: -- the left of it. 5 COMMISSIONER STEPHEN GOUDGE: Decision by 6 all present, he can't -- 7 MS. LINDA ROTHSTEIN: Continue, can we -- 8 COMMISSIONER STEPHEN GOUDGE: -- continue. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: I think PMs is post- 12 mortems, but what's ML? 13 DR. BARRY MCLELLAN: That would likely be 14 medico-legal. 15 MS. LINDA ROTHSTEIN: All right. 16 COMMISSIONER STEPHEN GOUDGE: Medico-legal 17 post-mortems or committee work, i.e., death under two or 18 PRC, I see, okay. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: So it may be that -- 22 is this -- is this a fair inference, Dr. McLellan, that 23 the minutes reflect that Dr. Smith's last attendance was 24 in the summer of that year; there may have been another 25 committee meeting scheduled for the fall which he was
651 asked not to attend as a result of this -- this meeting or 2 can you assist us? 3 DR. BARRY MCLELLAN: I can offer some 4 possibilities that may or may not be of assistance. One 5 would be that a decision had already been made that Dr. 6 Smith not sit on the committees, but he had requested to 7 join them again, or it may be that a decision had not yet 8 made. 9 There were upcoming meetings and this was 10 the decision that he would no longer be in attendance. 11 MS. LINDA ROTHSTEIN: So, Dr. McLellan, 12 Dr. Smith came to this meeting. Do you not have a 13 recollection of what he said, or how he presented, or what 14 is being -- 15 DR. BARRY MCLELLAN: I have very little 16 recollection, but I do recollect that he did not wish to 17 be removed from doing coroner's autopsies. 18 MS. LINDA ROTHSTEIN: And do remember 19 what, if any, explanation he offered for that position? 20 DR. BARRY MCLELLAN: I don't have any 21 independent recollection today, no. 22 MS. LINDA ROTHSTEIN: All right. Well, 23 thanks to -- 24 COMMISSIONER STEPHEN GOUDGE: Before you 25 turn away, Dr. McLellan, would that decision effectively
661 end his work for the Chief Coroner's Office? 2 DR. BARRY MCLELLAN: Yes, the -- the only 3 institution where Dr. Smith was conducting coroner's 4 autopsies at that time was The Hospital for Sick Children, 5 so if the decision was made that he was not going to 6 conduct autopsies under coroner's warrant there, that 7 would end his involvement conducting autopsies -- 8 COMMISSIONER STEPHEN GOUDGE: That and 9 committee work, then, he would no longer -- 10 DR. BARRY MCLELLAN: Well, there's one (1) 11 outstanding matter that I believe Ms. Rothstein will take 12 me to. At that particular time, he was still the Director 13 of the Unit. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: That takes us 18 forward to the spring of the following year, if I recall. 19 COMMISSIONER STEPHEN GOUDGE: Yeah, I 20 don't want to -- 21 DR. BARRY MCLELLAN: Correct. 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: All right. Just 25 while I'm there, if you would turn up Tab 5, Dr. McLellan;
671 again notes that we understand to be -- to have been 2 prepared by Mr. O'Marra reflecting a meeting on October 3 16, 2003 that, at least, he had with JGY, which I 4 understand to be Dr. Young. 5 Does this look like it was something that 6 you were involved in at all or can we infer from the fact 7 that your initials don't appear that this is something we 8 should ask Dr. Young about in his interview? 9 DR. BARRY MCLELLAN: Okay, I have no 10 recollection of the meeting and my interpretation of this 11 document is that is was a meeting between Mr. O'Marra and 12 Dr. Young. 13 MS. LINDA ROTHSTEIN: All right. So, as 14 you've explained to me a couple of times yesterday, you 15 indeed detain the Acting Chief -- or and you became Chief 16 Coroner in April of 2004, correct? 17 DR. BARRY MCLELLAN: Correct. 18 MS. LINDA ROTHSTEIN: And as I understand 19 it, that was a time when you saw fit to deal with the 20 issue of Dr. Smith's continued role as the Head of the 21 OPFPU? 22 DR. BARRY MCLELLAN: Correct. 23 MS. LINDA ROTHSTEIN: Can you tell us 24 about that, please, Dr. McLellan? 25 DR. BARRY MCLELLAN: Yes, I -- I met with
681 Dr. Smith. I indicated that I did not feel he should be 2 continuing in that role. As a result of our meeting, Dr. 3 Smith agreed and, subsequently, wrote to me indicating 4 that he wished to step down. 5 MS. LINDA ROTHSTEIN: And you can turn up 6 Tab 32. Mr. Registrar, may we have 132422? Is that the 7 letter that you're referring to, Dr. McLellan? 8 DR. BARRY MCLELLAN: Yes, it is. 9 COMMISSIONER STEPHEN GOUDGE: When did you 10 meet with him? Do you remember; was it April? 11 DR. BARRY MCLELLAN: I have a note to file 12 that I also believe is in the hands of your counsel, 13 Commissioner, that perhaps we could locate. It would 14 indicate the specific date -- 15 COMMISSIONER STEPHEN GOUDGE: Okay, that's 16 fine. We'll get it. 17 DR. BARRY MCLELLAN: I don't have those -- 18 COMMISSIONER STEPHEN GOUDGE: We'll get 19 it. It won't be a matter of dispute. 20 21 CONTINUED BY MS. ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: But your 23 recollection, indeed, is that it was in April? 24 DR. BARRY MCLELLAN: My recollection is is 25 that it would have been after my appointment in late
691 April, and I can't tell you today whether that would have 2 been, potentially, May or June. It was after the 3 appointment and obviously before July 1st. But there is a 4 dated note to file. 5 MS. LINDA ROTHSTEIN: All right. That's 6 one of the notes that I haven't assembled, and I promise 7 that I will, and we'll get that to you, Commissioner. 8 COMMISSIONER STEPHEN GOUDGE: Thank you. 9 10 CONTINUED BY MS. ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: Are you able to 12 assist us, Dr. McLellan, as to the reason why there is 13 some period of time -- this is July 9, 2004 -- before Dr. 14 Smith responds to your invitation to -- is it an 15 invitation to resign? Is that a fair characterization? 16 DR. BARRY MCLELLAN: We agreed at the 17 meeting -- 18 MS. LINDA ROTHSTEIN: Right. 19 DR. BARRY MCLELLAN: -- that that was the 20 most appropriate course of action, so I didn't have to go 21 any further. You'll note that the letter is written July 22 9th but retroactive to July 1st. 23 And in hospitals, appointments frequently 24 start or end on January the 1st or July 1st. So I can 25 only assume at the time of our meeting, we agreed that
701 July 1st was an appropriate day for him to stop. I do 2 recall indicating to Dr. Smith that I required a letter to 3 that effect. I do recall it being beyond July 1st and not 4 yet having a letter, but Dr. Smith did reply on July 9th. 5 MS. LINDA ROTHSTEIN: Just before we get 6 on to his successor and how that was dealt with; you've 7 been very helpful in identifying this meeting as occurring 8 after you became the Chief Coroner of Ontario, which was 9 at the end of April 2004, right? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: But you were the 12 Acting Chief Coroner for a period of time before that. As 13 I recall it, July 1, 2002 you became the Acting Chief 14 Coroner; Dr. Young was still the Chief Coroner? 15 DR. BARRY MCLELLAN: Correct. 16 MS. LINDA ROTHSTEIN: So, Dr. McLellan, 17 help us. What, if any, responsibility for the concerns 18 that had arisen in relation to Dr. Smith were in your 19 portfolio as Acting Chief Coroner as opposed to Chief 20 Coroner? 21 DR. BARRY MCLELLAN: In assuming the 22 position of Acting Chief Coroner, Dr. Young and I had an 23 agreement that he would maintain carriage of all matters 24 that dealt with Dr. Smith as far as his continuing to do 25 cases, his participation in committees and his specific
711 role as Medical Director. 2 The actual announcement that came out 3 indicated that as Acting Chief Coroner, I was responsible 4 for the day-to-day activities in the office. A number of 5 issues with Dr. Smith had been going on for some period of 6 time. I indicated earlier this morning that I wasn't, 7 myself, in agreement with the fact that Dr. Smith was 8 continuing in certain roles through this period of time. 9 And Dr. Young, in appointing me as Acting Chief Coroner, 10 agreed that it was appropriate for him to maintain 11 carriage of such matters involving Dr. Smith. 12 COMMISSIONER STEPHEN GOUDGE: I take it you 13 and Dr. Young didn't agree on the continuing involvement? 14 DR. BARRY MCLELLAN: We -- we did not 15 agree. It was not, by any means, a matter that we 16 discussed frequently. Dr. Young was aware of my position. 17 I certainly respected his position as Chief Coroner, and 18 we continued. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Dr. McLellan, just 22 to go back to -- you referred to a note that would help 23 you be more specific as to the date of your discussions 24 with Dr. Smith about his continued tenure as the Director 25 of the OPFPU.
721 Just look at Tab 31 and tell me whether 2 that email exchange is what you were hoping I would direct 3 you to or whether it's something else. 4 DR. BARRY MCLELLAN: It is something else. 5 MS. LINDA ROTHSTEIN: Yes. I thought so. 6 So the replacement of Dr. Young as the Director of the 7 OPFPU; what, if any, role as Chief Coroner did you have in 8 selecting his replacement? 9 DR. BARRY MCLELLAN: I believe you said 10 the replacement of Dr. Young. 11 MS. LINDA ROTHSTEIN: Sorry, I meant Dr. 12 Smith. Thank you. 13 DR. BARRY MCLELLAN: So I met with Dr. 14 Taylor who was the Department Head at The Hospital for 15 Sick Children. I met with him prior to July 1st of 2004 16 to ensure that there was a plan in place for services to 17 continue at the hospital and that we had an idea as to who 18 would be most appropriate to take on this role. 19 Dr. Taylor was very busy with many 20 different responsibilities, but agreed that this was very 21 important and said he would take on the responsibilities 22 himself. Dr. Taylor had been conducting autopsies for our 23 office, including complex autopsies; and he and I both 24 agreed that he was the most qualified and appropriate 25 person to take the position of Medical Director.
731 So I wrote to him with the request that he 2 assume that position. 3 MS. LINDA ROTHSTEIN: And when you say 4 that Dr. Taylor had been doing autopsies for your office, 5 you're talking about his capacity as a fee-for-service 6 forensic pathologist engaged by the Ontario Forensic 7 Pathology Unit? 8 DR. BARRY MCLELLAN: That's correct. 9 MS. LINDA ROTHSTEIN: Right. And his 10 letters, or that exchange of correspondence -- we also 11 have as well -- if you could turn up 129852, please, 12 Registrar? 13 COMMISSIONER STEPHEN GOUDGE: Do you have 14 a tab for that, Ms. Rothstein? 15 MS. LINDA ROTHSTEIN: I do. It's 33. 16 COMMISSIONER STEPHEN GOUDGE: Thank you. 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: So that, it would 20 appear, to have been confirmed by the Vice President, 21 Information and Diagnostic Services of The Hospital for 22 Sick Children at the end of July, 2004? 23 DR. BARRY MCLELLAN: Correct. So that 24 July 29th letter is in response to my letter of July 20th, 25 which can be found at Tab 34.
741 COMMISSIONER STEPHEN GOUDGE: Now, at that 2 point, was Dr. Taylor the Head of the Pathology Department 3 at Sick Kids? 4 DR. BARRY MCLELLAN: Yes. 5 COMMISSIONER STEPHEN GOUDGE: So, he 6 became the Director and continued as the Head of the 7 Department? 8 DR. BARRY MCLELLAN: Yes. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: All right. We'll go 12 back one (1) month to June of 2004 which is, as I 13 understand it, Dr. Pollanen, the first time that you 14 became engaged in preparing a consultation report on one 15 of the cases that had been originally conducted by Dr. 16 Charles Smith. 17 DR. MICHAEL POLLANEN: Correct. 18 MS. LINDA ROTHSTEIN: All right. And just 19 to orient you again, Commissioner, we're going to Jenna's 20 overview report which is, again, at Tab 7 of the overview 21 report binder. 22 And I've taken you through to paragraph 23 131. And now I want to move forward, chronologically, to 24 March of 2004 at paragraph 170. 25 You will see that by that stage, which is
751 after Dr. McLellan's original involvement by some year and 2 change, Detective Constable Charmley felt he had exhausted 3 all investigative avenues to uncover further evidence. 4 And as a result, he prepared a report 5 outlining a summary of the initial investigation and the 6 review that was done. His report was to be circulated to 7 others in the hope that it would generate new ideas that 8 would assist in the investigation of Jenna's death. 9 This report was reviewed by police 10 investigators, the Crown attorney's office, and the office 11 of the Chief Coroner of Ontario. And it was thereafter 12 that Dr. Pollanen was asked to conduct a review of the 13 forensic pathology in Jenna's case, and you will find 14 reference to that at paragraph 172. 15 Now the Order of the report reads: 16 "During this same time [it's in the 17 May/June period], Dr. Michael Pollanen 18 was asked to conduct a review of the 19 forensic pathology in the case of Jenna, 20 and we indeed have Dr. Pollanen's 21 report, dated June 16th, 2004, in which 22 Dr. Pollanen concluded that Jenna's 23 death was due to an inner-abdominal 24 hemorrhage from blunt impact trauma to 25 the abdomen, which was inflicted within
761 hours of her death." 2 Now assist us if you can, Dr. Pollanen, do 3 you have any recollection as to how it came to be that 4 your opinion was sought in this case at this time? 5 DR. MICHAEL POLLANEN: It was my 6 understanding that the Peterborough police had reinitiated 7 an investigation into the death of Jenna, and a new 8 investigator had been assigned to do a summaritive review 9 of the case. 10 And part of that review was a review of the 11 forensic pathology. On that basis, our office was 12 contacted, and Dr. Cairns asked me to review the case. 13 MS. LINDA ROTHSTEIN: All right. And do 14 you recall how much before your report of June 16th, that 15 request was made? 16 DR. MICHAEL POLLANEN: No. 17 MS. LINDA ROTHSTEIN: All right. Could 18 you turn up Tab 35, and I will get you the reference, 19 Registrar. 072613. 20 So looking at this, Dr. Pollanen, indeed it 21 reflects on the first page, that the referring coroner was 22 Dr. James Cairns who is the Deputy Chief Coroner 23 Investigations? 24 DR. MICHAEL POLLANEN: Yes. 25 MS. LINDA ROTHSTEIN: So, if you can
771 summarize for us -- well let me start with this -- you 2 haven't outlined for us the process by which one does a 3 consultation as opposed to the original autopsy. 4 So, perhaps, before we get to summarizing 5 the specifics of your findings in this case, you can help 6 us with that. How does one go about doing a consultation 7 or second opinion? 8 DR. MICHAEL POLLANEN: The best way is to 9 do exactly what you do in an autopsy except you follow the 10 reviewable record on the same steps. Now the way you 11 write your report may have to be tailored to exposition of 12 your findings and the major medico-legal opinions. 13 So -- but the -- the actual process is 14 essentially going through the five (5) steps of the 15 medico-legal autopsy in a review format. And this is what 16 makes independent reviewability - something that we talked 17 about yesterday - so important in forensic pathology. 18 Because if you're going to go through a 19 review process, you really do require critical information 20 that is primary data and that is photographs, histological 21 sections. If you're lucky, you may have specimens from 22 the original post-mortem. 23 MS. LINDA ROTHSTEIN: And was this case 24 filed in a state where it was independently reviewable, to 25 use your words?
781 DR. MICHAEL POLLANEN: Yes. 2 MS. LINDA ROTHSTEIN: There wasn't 3 anything that you were missing in order to come to a firm 4 and reasoned conclusion? 5 DR. MICHAEL POLLANEN: Correct. 6 MS. LINDA ROTHSTEIN: All right. And can 7 you -- 8 COMMISSIONER STEPHEN GOUDGE: How do you 9 do the external examination? 10 DR. MICHAEL POLLANEN: You -- 11 COMMISSIONER STEPHEN GOUDGE: From 12 photographs? 13 DR. MICHAEL POLLANEN: By photographs, 14 yes. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: And I -- I take it, 18 Dr. Pollanen, on the Commissioner's point, that there are 19 occasions where photographs have been taken, but they're 20 not good enough to assist you in doing a fair and detailed 21 external examination by photograph. 22 DR. MICHAEL POLLANEN: Yes. Or in fact, 23 no photographs. In that case the -- the reviewing 24 pathologist is hampered. 25 MS. LINDA ROTHSTEIN: But that wasn't the
791 problem in this case? 2 DR. MICHAEL POLLANEN: No. 3 MS. LINDA ROTHSTEIN: All right. And then 4 turning to your opinion and discussion -- Registrar, if 5 you would turn up page 9 of that document -- as I 6 understand it, the thrust of your conclusion is set out in 7 the second paragraph on that page, Dr. Pollanen, where you 8 say that the lethal injuries are perimortem, i.e., 9 inflicted within hours of death. The lethal injuries did 10 not occur, for example, many hours or days prior to death. 11 Is that fair? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. LINDA ROTHSTEIN: All right. Can you 14 assist us as to the reasoning process by which you 15 justified or came to that conclusion? 16 DR. MICHAEL POLLANEN: There were five (5) 17 major reasons. But first I'd just like to explain 18 something about the anatomy. 19 So the -- the findings at autopsy in this 20 case were those of blunt impact abdominal trauma and that 21 is a force delivered on the abdomen in such a way that the 22 internal organs were damaged. Now, the specific internal 23 organs that were damaged, and I'll just speak of two (2) 24 of them, were the pancreas and the duodenum, which is part 25 of the small intestine.
801 And these organs are essentially tucked 2 back in the abdominal cavity and sit on top of the spine. 3 So when a blow is delivered onto the abdomen the organs 4 are displaced backwards into the abdominal cavity, but you 5 have -- you it -- they meet resistance over the spine. 6 And essentially what happens, if the -- if the force is 7 substantive enough, the pancreas and the duodenum 8 essentially will be spit into two (2). 9 This is a well-recognised injury pattern 10 essentially in child abuse related trauma to the abdomen. 11 We occasionally see it in adults, but it's more frequently 12 an injury pattern that we see in children. 13 And this transection or splitting of the 14 pancreas and the duodenum into two (2) halves creates 15 bleeding in the abdomen. It's -- you can imagine the 16 blood vessels that are attached to these organs are opened 17 and blood pours out into the abdomen. That process will 18 eventually lead to shock and death. 19 So the -- the challenge in this case is, 20 once you've identified these tissues that are damaged, is 21 to examine the tissues under the microscope to determine 22 whether the pathology advances some understanding about 23 when the injuries occurred relative to death. 24 And in my exposition yesterday about some 25 of the frailties of pediatric forensic pathology, we can
811 extend that to forensic pathology in general, because one 2 of the difficulties that we often have revolve around 3 answering questions of time; time of death, time of 4 injury, survival intervals, et cetera. 5 So this is an area that is also evolving in 6 forensic pathology, but we have -- there are certain 7 principles that we use. And the main principle that we 8 use to determine the age of an injury is whether or not 9 there is any evidence that the body has reacted to the 10 injury. It's called a vital reaction or healing reaction. 11 So, on that basis, I have five (5) reasons 12 why, in my view, the injuries to the abdomen occurred 13 around the time of death and I'll just briefly -- 14 MS. LINDA ROTHSTEIN: Just -- just before 15 we do, I'm wondering, Commissioner, if we should adjourn 16 at this moment and let Dr. Pollanen take us through those 17 five (5) reasons when we reconvene. 18 COMMISSIONER STEPHEN GOUDGE: By all 19 means. Let's break for fifteen (15) minutes. We will be 20 back a couple of minutes after 11:30. 21 22 --- Upon recessing at 11:17 a.m. 23 --- Upon resuming at 11:31 a.m. 24 25 COMMISSIONER STEPHEN GOUDGE: Ms.
821 Rothstein...? 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: Thank you very much. 5 Dr. Pollanen, just before the break you had 6 told the Commissioner that there were five (5) reasons 7 that supported your conclusion as to the timing of the 8 injuries that were inflect -- inflicted to Jenna prior to 9 her death. Just before you get to those, am I right in 10 understanding, Dr. Pollanen, that in general it is very 11 difficult for forensic pathologists to be at all precise 12 about the timing of injuries? 13 DR. MICHAEL POLLANEN: It is a very 14 problematic area. Histology and other objective methods 15 are helpful but they're not foolproof, they're not 16 precise. 17 MS. LINDA ROTHSTEIN: And -- and just to 18 telegraph some things to come that I expect the forensic 19 experts who are testifying next week will talk about as 20 well, the Truscott case I take it is an exemplar of the 21 evolving nature of forensic pathology on the issue of the 22 timing of injuries. 23 DR. MICHAEL POLLANEN: Time -- time of 24 death -- 25 MS. LINDA ROTHSTEIN: And time of death,
831 yeah. 2 Are those two (2) different things? Should 3 we think of those very differently? Sorry, you've 4 corrected me quite properly. 5 DR. MICHAEL POLLANEN: Yes, they're -- 6 they represent the same problem -- 7 MS. LINDA ROTHSTEIN: Okay. 8 DR. MICHAEL POLLANEN: -- for different 9 reasons. 10 MS. LINDA ROTHSTEIN: All right. So let's 11 get to the timing of the injuries here. You were at page 12 9 of your consultation report, can you walk us through the 13 five (5) reasons, hopefully translating for us some of the 14 medical language which is embedded in your actual report. 15 DR. MICHAEL POLLANEN: Well, the first 16 reason is that the bleeding was recent; it showed no 17 evidence of healing under the microscope. And this is 18 actually quite important for two (2) reasons. 19 First, that the absence of healing would 20 support bleeding occurring around the time of death. And 21 second, we can make this observation because the original 22 autopsy included adequate sampling of the area. 23 The second point was no peritonitis. And 24 the point here is that when you open a segment of your 25 intestines, the intestines spill contents into the
841 abdominal cavity and these contents elicit an inflammatory 2 reaction, and that is called peritonitis. And the absence 3 of peritonitis around the small intestinal injury, again, 4 speaks to its recency. 5 MS. LINDA ROTHSTEIN: How long would it 6 normally take for peritonitis to be evident? 7 DR. MICHAEL POLLANEN: Well, that's when 8 we get into trouble, you see -- 9 MS. LINDA ROTHSTEIN: Okay. 10 DR. MICHAEL POLLANEN: -- because there is 11 no strict accounting of when the -- the different cells 12 come in. There are general parameters, but in this case, 13 the -- that issue was not problematic because there simply 14 is no inflammation. 15 MS. LINDA ROTHSTEIN: Right. Reason 16 number 3. 17 DR. MICHAEL POLLANEN: Number three (3) is 18 that we recognize, particularly in pediatric forensic 19 pathology, there is a relatively unique type of injury to 20 the duodenum. And that is that the duodenum may -- may 21 get injured, but instead of rupturing immediately, the 22 duodenum may essentially just get bruised. 23 And then, over time, the bruised area 24 weakens and then ruptures. So, in that circumstance, you 25 have a little bit of a timing paradox because you have
851 acute or recent changes occurring in the backdrop of a 2 healing injury. And that's because there has been an 3 acute change in the healing injury. 4 And that would be an argument -- if that 5 were present -- an argument for essentially backdating the 6 injury, but that was not present in this case. 7 Fourth; because the pancreas has been split 8 into two (2) and the pancreas contains special -- a 9 special chemical or substance called an enzyme, and these 10 enzymes break down tissue and food. In fact, the pancreas 11 is connected to the small intestine and delivers these 12 enzymes through a duct to facilitate digestion. 13 So, when the pancreas is split into two 14 (2), those enzymes just get released into the surrounding 15 tissues, including the pancreas itself, and those are 16 extremely irritating. And they will produce a very 17 vigorous reaction in the pancreas and surrounding tissues. 18 And the medical terms for that are 19 pancreatitis and fat necrosis. Those were absent. 20 MS. LINDA ROTHSTEIN: And fifth? 21 DR. MICHAEL POLLANEN: And finally when 22 anyone is dying of shock, and they go through this 23 progressive spiral down as they die, due to the lack of 24 blood circulating in the body, that shock is often 25 manifested in the form of certain findings at autopsy.
861 However, if the bleeding injury is 2 relatively large, causing a precipitous drop in blood loss 3 or blood volume rather than a gradual drop, you will not 4 find autopsy evidence of shock. So, in other words, if 5 the -- if the bleeding in the abdomen had been going on 6 for some period of time with a progressive slide into 7 shock, you would find those secondary effects of shock. 8 Now, I would say, to be balanced on this, 9 that the first four (4) points are probably more important 10 than the fifth. The fifth is really corroborative of the 11 first four (4). 12 MS. LINDA ROTHSTEIN: The other thing that 13 you do, starting at the bottom of page 9 of this 14 consultation report, is you make the statement that there 15 are discrepancies with the reported history and the 16 autopsy findings. 17 What did you mean by that, Dr. Pollanen? 18 DR. MICHAEL POLLANEN: Well, this goes to 19 the larger role of the forensic pathologist in the death 20 investigation. And, specifically, here the issue is cause 21 of death, time of death, but also how -- sorry, time of 22 injury -- but also how to reasonably situate the autopsy 23 findings within a medico-legal context. 24 And that -- that is one of the very 25 important roles that the forensic pathologist plays in a
871 criminal justice system. So, based upon the information 2 that was provided to me in the investigative summary, I 3 essentially went through an accounting exercise of looking 4 at what does the autopsy tell us and comparing it to the 5 history. 6 And -- 7 MS. LINDA ROTHSTEIN: And what did you 8 conclude? 9 DR. MICHAEL POLLANEN: Well, I -- I found 10 that there were several forensically important points that 11 emerged in -- in terms of contradiction -- 12 MS. LINDA ROTHSTEIN: All right. 13 DR. MICHAEL POLLANEN: -- or in terms of 14 lack of sufficient explanation. 15 MS. LINDA ROTHSTEIN: Would you walk us 16 through those, please, Dr. Pollanen, starting with number 17 1; the issue of head injuries at the bottom of that page? 18 DR. MICHAEL POLLANEN: Well, there were 19 extensive head injuries, more than one would anticipate 20 from a simple fall; specifically, there was quite a lot of 21 bruising on the scalp in a -- in a rather uniformed 22 distribution and as opposed to a single impact site with a 23 localized bruise. 24 MS. LINDA ROTHSTEIN: And in this case, 25 the report that was inconsistent with the autopsy findings
881 was a report, as I recall, Dr. Pollanen, from a babysitter 2 of a fall, is that correct? 3 DR. MICHAEL POLLANEN: Yes. 4 MS. LINDA ROTHSTEIN: All right. 5 DR. MICHAEL POLLANEN: I think -- I think, 6 if my memory is correct, there may have been a story about 7 a slide, as well. 8 MS. LINDA ROTHSTEIN: Correct. 9 DR. MICHAEL POLLANEN: The second was that 10 there were fractured ribs and the -- the fractured ribs 11 are not well-accounted by anything in the history, and 12 this would imply that there was chest compression or major 13 im -- impulsive impacting force on the chest, breaking the 14 ribs, and that really had no correlate in the history. 15 The third point is the -- the fatal injury 16 that I've described has a specific mechanism that I have 17 already talked about where the -- the organs of the 18 abdomen are pushed against the spine, and these injuries 19 are seen with impact injuries on the upper abdomen and 20 really are not seen with falls. 21 Now, there are, in fact, certain types of 22 falls in the literature which will produce that injury, 23 but they come with specific histories, such as riding a 24 bicycle and having -- being stopped abruptly on -- and 25 having that handlebars impact the abdomen, thee -- these
891 types of things. 2 MS. LINDA ROTHSTEIN: But again, your 3 point was that that -- those autopsy findings were 4 inconsistent with the babysitter's report of how these 5 injured -- injuries had occurred. 6 DR. MICHAEL POLLANEN: Correct. Very 7 troubling were a series of burns on the face, and these 8 burns had both a patterned and non-patterned appearance, 9 and also, in termed -- in terms of their timing were peri- 10 mortem; in other words, occurring around the time of 11 death. 12 And in that circumstance we have in -- in - 13 - from a forensic pathologist's point of view, a very 14 troubling situation because you now have the burns on the 15 face and the impact injury to the abdomen essentially 16 occurring over the same time frame. 17 COMMISSIONER STEPHEN GOUDGE: How do you 18 tell that is when they occurred? 19 DR. MICHAEL POLLANEN: Well, essentially 20 based upon the same argument in terms of lack of 21 histological evidence of healing, et cetera. 22 COMMISSIONER STEPHEN GOUDGE: I see. 23 DR. MICHAEL POLLANEN: The fifth point, 24 which is very important, in my view, is the -- the 25 presence of a bite mark, or at least what I have termed as
901 an annular patterned injury on the right leg. 2 And this is important for -- for many 3 reasons. The first is that, if you recall -- recall, the 4 second step of the medico-legal autopsy is external 5 examination, and the external examination represents a 6 critical opportunity to collect evidence and processing of 7 bite marks is extremely important in forensic pathology 8 because the bite mark gives you information about what has 9 happened; like the nature of the assault that's taken 10 place, but also the pro -- processing of the bite mark may 11 assist in identifying the biter. And that is essentially 12 through two (2) major procedures. 13 First, swabbing the bite mark to obtain 14 saliva which may contain shed cells from the inside of the 15 mouth and, therefore, be a DNA source of the biter. And 16 second, and this is -- suffers from perhaps some frailties 17 in itself, but bite mark comparison or bite mark analysis 18 where the bite mark can actually be studied by a forensic 19 dentist, and there may some opinions that flow from that 20 in terms of comparing dentation from potential biters. 21 Now, the -- the importance of the -- the 22 injury in this case is it's recognition, and then 23 adequately dealing with the evidential concerns that come 24 from the bite mark. 25 And this -- this is an area where forensic
911 pathologists, you know, come to the limit of their 2 expertise, and then we get other experts involved. And so 3 in this case -- although we were, perhaps, fairly down the 4 track as it were, I asked a forensic dentist to -- to make 5 an opinion on -- on this issue. 6 MS. LINDA ROTHSTEIN: And just stopping 7 there again to define some terms, is a forensic dentist 8 the same thing as an odontologist? 9 DR. MICHAEL POLLANEN: Yes. 10 MS. LINDA ROTHSTEIN: Okay. 11 DR. MICHAEL POLLANEN: And then in 12 addition to the first five (5), there was extensive 13 bruising distributed on the body in the extremities. And 14 this was -- the -- the widespread distribution of these 15 injuries really required further explanation. 16 MS. LINDA ROTHSTEIN: All right. Dr. 17 Pollanen, after completing this report, did you have any 18 further involvement in the proceedings that resulted -- 19 the criminal proceedings that resulted in relation to 20 Jenna's death? 21 DR. MICHAEL POLLANEN: I -- I attended 22 some meetings. 23 MS. LINDA ROTHSTEIN: All right. And 24 those were with whom? 25 DR. MICHAEL POLLANEN: One (1) meeting, I
921 believe, was with the investigative team, where I 2 explained my conclusions that I had reached, and discussed 3 with the team what I thought would be reasonable, 4 subsequent, steps to take in the -- in terms of 5 understanding the medical evidence. 6 MS. LINDA ROTHSTEIN: Right. 7 DR. MICHAEL POLLANEN: And somewhat later 8 at the -- when a further criminal justice process had been 9 initiated, defence counsel act -- actually requested to 10 meet me, and I discussed my findings with defence counsel. 11 MS. LINDA ROTHSTEIN: Right. And, 12 Commissioner, you'll recall -- I know that this is a case 13 set out at paragraph 4 of the overview report, where on 14 December the 28th, 2005, JD, the youth who was babysitting 15 Jenna the night she died, was charged with second degree 16 murder. 17 And on December 14, 2006, JD pleaded guilty 18 to manslaughter, and the criminal proceeding concluded on 19 March 1, 2007 when he was sentenced as a youth to twenty- 20 two (22) months incarceration followed by eleven (11) 21 months of community supervision. 22 Do those time benchmarks assist you at all, 23 Dr. Pollanen, in relation to your discussions with defence 24 counsel, or... 25 DR. MICHAEL POLLANEN: I believe it was on
931 the eve of the plea. 2 MS. LINDA ROTHSTEIN: All right. So that 3 was the defence counsel for JD, the babysitter? 4 DR. MICHAEL POLLANEN: Correct. 5 MS. LINDA ROTHSTEIN: Thank you. All 6 right. Obviously, Commissioner, you will hear 7 considerably more evidence about that case, but in moving 8 forward with the chronology in relation to Dr. McLellan 9 and Dr. Pollanen's involvement in these cases, I'm going 10 to -- to turn to the Mullins-Johnson case. 11 COMMISSIONER STEPHEN GOUDGE: Just before 12 you do, let me just ask you one (1) last question about 13 your opinion, Dr. Pollanen. The clinical opinion you were 14 suggesting on the rate of development of symptoms from the 15 fatal injuries; would that have been a normal request had 16 you done the original autopsy? 17 DR. MICHAEL POLLANEN: It may have, and -- 18 and it underlines -- 19 COMMISSIONER STEPHEN GOUDGE: That's what 20 I'm getting at, is how certain are forensic pathologists, 21 and at what point do they normally turn to a clinical 22 opinion about a bodily function? 23 DR. MICHAEL POLLANEN: Well, it's a -- 24 it's a very important point to make, and that is that when 25 forensic pathologists ask for a sy -- for an opinion, lets
941 say from a clinical expert -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. MICHAEL POLLANEN: -- it's not 4 necessarily because we require further clarification of 5 our own opinion. It may, in fact, be in some 6 circumstances, but the forensic pathologist also is a 7 resource person to the other people in the death 8 investigation and can provide them with advice for how 9 other specialists may advance the overall investigation. 10 So, for example, I may -- I may request a 11 clinical opinion to advance my own understanding of the 12 issue, or I may simply say to the investigators, you know 13 this is my view, but you might want to also examine other 14 peoples views on the matter to give a balanced assessment 15 of -- of the evidence when it goes to trial, for example. 16 COMMISSIONER STEPHEN GOUDGE: I read into 17 your opinion the thought process as follows: This is a 18 case where development of symptoms following injury is 19 critical for the timing question. We should also see what 20 a clinician says about that timing? 21 DR. MICHAEL POLLANEN: Correct. 22 COMMISSIONER STEPHEN GOUDGE: Thanks. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: So, Dr. McLellan, if
951 you would turn up Tab 36; Registrar, 003995, please? 2 Dr. McLellan, you're now the Chief Coroner. 3 It's the fall of 2004, and you receive a letter from Phil 4 Downes with the Crown Law Office Criminal in the Ministry 5 of the Attorney General regarding the William Mullins- 6 Johnson case. Is this the first time that you had any 7 involvement in this case? 8 DR. BARRY MCLELLAN: Yes. 9 MS. LINDA ROTHSTEIN: And the letter as we 10 all can see reads that: 11 "We have received a request from Mr. 12 James Lockyer and Mr. David Bayliss in 13 relation to the above individual." 14 And further down that: 15 "The Sault Ste. Marie police 16 investigating this case have 17 investigated this case and have provided 18 assistance over the last eighteen (18) 19 months or so in locating material 20 requested by Mr. Lockyer and Mr. 21 Bayliss. AIDWIC has enlisted the help 22 of Dr. Bernard Knight to assess the 23 pathological evidence in the case. As a 24 result, we have been asked if Dr. Knight 25 could view the original slides examined
961 by Dr. Rasaiah and Dr. Charles Smith in 2 this case or if the originals are not 3 available, re-cuts from the same 4 paraffin blocks..." 5 And if I can just stop there, Dr. Pollanen. 6 I take it from what you've told us that would be the 7 expected procedure, that if anyone was going to undertake 8 a second look, a consultation, a second opinion on a case 9 as a forensic pathologist, they would need the original 10 histological material? 11 DR. MICHAEL POLLANEN: If their review was 12 to include the histology, yes. 13 MS. LINDA ROTHSTEIN: But I take it from 14 what you've told us, sir, that the review would, of 15 necessity, be very limited if they could not review the 16 original histological material? 17 DR. MICHAEL POLLANEN: Certainly in the 18 issues in this case, yes. 19 MS. LINDA ROTHSTEIN: Right. Now, Dr. 20 McLellan, the letter on the second page -- thank you -- 21 reads: 22 "I and Sergeant Romano Carlucci of the 23 Sault Police have made requests to 24 various parties including the Regional 25 Coroner Dr. Legge, Dr. Smith, and Dr.
971 Rasaiah but have been unable to locate 2 any of the forensic material. Dr. Legge 3 suggested that we seek your assistance 4 in determining the whereabouts of this 5 material from Dr. Smith." 6 So are we to understand, based on your 7 previous answer to me, Dr. McLellan, that Dr. Legge had 8 not yet contacted you and directly asked for your 9 assistance in obtaining this material from Dr. Smith? 10 DR. BARRY MCLELLAN: Correct. 11 MS. LINDA ROTHSTEIN: All right. And so 12 you can't help us, Dr. McLellan, as to what steps had been 13 taken by various individuals in attempting to locate the 14 original histological material in the eighteen (18) months 15 that proceeded this letter. 16 Is that fair? 17 DR. BARRY MCLELLAN: Yes. 18 MS. LINDA ROTHSTEIN: All right. 19 Commissioner, here's where I hope the overview reports can 20 fill in, at least, some of the blanks and I would ask you 21 to turn up Tab 18 of the overview report for Valin's case. 22 I know, Commissioner, that the broad 23 strokes of this case are well known to you. Registrar, 24 144323 at page 3 of that document, please. Sorry, 144327 25 at page 4 of that document?
981 "Valin was born in Sault St. Marie on 2 February 11th of 1989 to Paul Johnson 3 and Kim Lavierre (phonetic). She died 4 at the age of four on June 26th and -- 5 or 27, 1993 in Sault Ste. Marie." 6 Paragraph 2: 7 "On June 27, 1993, Mr. Mullins-Johnson 8 was arrested and charged with the first- 9 degree murder and aggravated assault of 10 Valin." 11 Over the page to page 4, Registrar, please; 12 paragraph 10, Commissioner, to move fast forward through 13 an unfortunate trial and appeal process for Mr. Mullins- 14 Johnson culminated two (2) weeks ago in the October 15, 15 2007 Court of Appeal hearing in which Mr. Mullins-Johnson 16 and, indeed, Mr. Pollanen -- Dr. Pollanen -- gave viva 17 voce evidence. 18 And you will note, Commissioner, that after 19 the submissions of counsel, the Court of Appeal acquitted 20 Mr. Mullins-Johnson, although they reserved on the issue 21 of whether a declaration of factual innocence should be 22 made. 23 Paragraph 11 of the overview report. 24 On October 19, 2007, the Court of Appeal 25 delivered its written judgment. The Court confirmed that
991 Mr. Mullins-Johnson was wrongly convicted, that the, 2 quote: 3 "...fresh evidence shows that the 4 appellant's conviction was the result of 5 a rush to judgment based on flawed 6 scientific opinion." Close quote. 7 And that he was: 8 "...the subject of a terrible 9 miscarriage of justice." Close quote. 10 But did not make a declaration of factual 11 innocence. 12 I expect as the morning ensues, we will 13 come back to Dr. Pollanen's evidence and the concerns 14 raised by the Court of Appeal about the flawed scientific 15 opinions that founded the original conviction. 16 But I wanted to assist you, Commissioner, 17 with respect to the efforts that were made by various 18 persons to locate the original histological material that, 19 ultimately, enabled second opinions and the fresh evidence 20 to be tendered. 21 So, if you would turn to paragraph 103, 22 Commissioner, and it's page 58, Mr. Registrar, of that 23 document. 24 On October 28th, 2001, Mr. David Bayliss, 25 on behalf of the Association in Defence of the Wrongfully
1001 Convicted (AIDWIC) wrote to Dr. Cairns. In his letter he 2 stated -- I'm reading from the last paragraph: 3 "On behalf of Mr. Mullins-Johnson, 4 AIDWIC requests that the Coroner's 5 Office review Dr. Smith's work in the 6 Mullins-Johnson case. Although the case 7 is no longer before the courts, it is 8 certainly ongoing in the sense that an 9 innocent man may be imprisoned because 10 of an opinion by a doctor whose 11 reliability in other cases is under 12 scrutiny by his own colleagues. As 13 such, we suggest fairness dictates that 14 Mr. Mullins-Johnson receive the same 15 consideration being extended to accused 16 persons who are presently before the 17 courts." 18 Turning to paragraph 105, an attempt to 19 slightly abbreviate some of the lengthy description of 20 this in the overview report, which I commend to all -- on 21 February 27, 2003, Mr. Lockyer, on behalf of AIDWIC, wrote 22 to Sean Porter of the Ministry of the Attorney General, 23 Crown Law Office Criminal. And his letter is set out 24 there. 25 And paragraph 107 records that on March 4,
1011 2003, Carol Brewer, the Deputy Director of the Crown Law 2 Office Criminal, replied to Mr. Lockyer and advised that 3 Mr. Porter was away and that Mr. Phil Downes, who had 4 worked on the appeal, would be assigned to assist AIDWIC. 5 On March 13th, 2003, Mr. Downes wrote to 6 Mr. Lockyer and advised him that he was assigned to the 7 file and would be taking steps to secure the material you 8 have requested without undue delay. 9 On March 28th, Mr. Downes wrote to the 10 Trial Crown. That same day, a letter was sent on behalf 11 of the Trial Crown to Inspector Tony and so on. 12 For our purposes at the moment, 13 Commissioner, at paragraph 114 -- that's page 61, 14 Registrar -- it's important to recall, Commissioner, that 15 Dr. Smith did not perform the autopsy in this case. The 16 autopsy was performed by Dr. Rasaiah. 17 And, accordingly, paragraph 114 records 18 that on June 4, 2003, Dr. Rasaiah sent a letter to Staff 19 Sergeant Carlucci. He stated: 20 "On the 15th of May, 2003 at 1200 hours, 21 I received a fax from you requesting the 22 slides and blocks on Valin." 23 I turn the page to the last two (2) 24 paragraphs of that letter. That's page 62, Registrar. 25 "On the 22nd of June, 1994, the
1021 microscopic slides and tissue blocks 2 were sent to Dr. Charles Smith of The 3 Hospital for Sick Children at the 4 request of the Crown Attorney, Mr. Glen 5 Wasyliniuk. Our records show that the 6 microscopic slides and tissue blocks 7 were not returned. On the 3rd of June, 8 2003, I telephoned Dr. Charles Smith who 9 indicated to me that he would look for 10 the slides and blocks." 11 Mr. Downes wrote to Dr. Rasaiah on October 12 14, 2003. That's reflected at paragraph 116. Page 63, 13 paragraph 117, Dr. Rasaiah responds. The next day he 14 wrote: 15 "Thank you for your fax letter dated 16 14th October, 2003. As I indicated in 17 my letter dated June 4, 2003, I had 18 telephoned Dr. Charles Smith to return 19 the tissue slides and blocks on Valin 20 but I did not receive any response. I 21 called Dr. Charles Smith's office on the 22 14th of October at 10:00 a.m. and left a 23 message with his secretary but Dr. 24 Charles Smith did not return my call." 25 Paragraph 118. On October 31, 2003, Mr.
1031 Downes wrote to Dr. Smith, he stated: 2 "I understand that in June 2003, Dr. 3 Rasaiah contacted you about these 4 slides." 5 And continues: 6 "I would be very grateful if you could 7 advise me of your knowledge as to the 8 whereabouts of this material or could 9 provide them to me so that they can be 10 given to defence counsel." 11 Paragraph 119 reflects a memorandum to file 12 that Mr. Downes drafted following a telephone call that he 13 had with Dr. Smith on December 29th of 2003, in which he 14 concludes by saying: 15 "I asked Dr. Smith to let me know by way 16 of letter what his final position was on 17 the whereabouts of the material. He 18 agreed to do so." 19 Paragraph 120, on January 6th, 2004, Mr. 20 Bayliss, on behalf of AIDWIC, writes to Mr. Downes again. 21 I ask you to review that at the next opportunity, 22 Commissioner. 23 Mr. Downes' response on January the 12th of 24 2004 is set out in its entirety in paragraph 121, in which 25 he states, among other things:
1041 "I understand your frustration over the 2 delay in receiving the materials you 3 have requested and I had to be away from 4 the office for personal reasons in the 5 late Fall. I had hoped that I would 6 have a favourable response from Dr. 7 Smith to my repeated requests for the 8 forensic material. He informed me on 9 December 29, 2003, that he had been 10 unable to locate the slides. I have 11 asked him to conduct a further search 12 and he has agreed to do so and provide 13 me with a written response to my 14 requests." 15 Further correspondence ensues. Turning to 16 page 66, Registrar, please, paragraph 124. 17 On January 28th of 2004, Mr. Downes wrote 18 again to Dr. Smith as follows: 19 "I understand from our recent telephone 20 conversation that you have so far been 21 unable to locate any of the microscopic 22 slides examined by you in this case. I 23 would greatly appreciate if you could 24 confirm in writing whether this 25 continues to be the case and whether, if
1051 the slides are not available, you have 2 any knowledge of whether the tissue 3 block from the autopsy is nevertheless 4 available from which new slides could be 5 generated. 6 I would appreciate hearing from you at 7 your earliest convenience." 8 Various police officers are then engaged by 9 Mr. Downes thereafter. 10 Paragraph 131, page 68, please, Registrar, 11 reflects another letter from Mr. Downes to Dr. Smith on 12 March 16th, 2004. Followup by police officers. Further 13 correspondence between Mr. Downes and Mr. Bayliss is 14 reflected in the next paragraphs. 15 Paragraph 134, that's page 69 of that 16 document, thank you, on April 13, 2004 Mr. Downes wrote to 17 Mr. Bayliss, he stated: 18 "On March 16, 2004 I sent Dr. Smith a 19 registered letter asking for a response 20 to my earlier letter requesting his 21 written response to my questions about 22 the possible whereabouts of the forensic 23 material in this case. I have not heard 24 back from him. I have asked the police 25 to conduct inquiries with the Officer of
1061 the Coroner in the event that they might 2 be of any assistance. If you see fit to 3 pursue any particular procedure or 4 course of action, I would be pleased to 5 cooperate." 6 Paragraph 135, that's page 70, Registrar, 7 Mr. Bayliss replies on November the 15th, 2004. And that 8 immediately proceeds Mr. Downes' letter to you, Dr. 9 McLellan, as Chief Coroner on November the 17th of 2004. 10 And stopping there for a moment. 11 Am I right in understanding that because 12 Dr. Smith did not do the original post-mortem examination? 13 His work in this case was not strictly speaking under 14 coroner's warrant? 15 DR. BARRY MCLELLAN: That's correct. 16 MS. LINDA ROTHSTEIN: And indeed the 17 coroner would not necessarily have any record -- the 18 coroner's office, I should say, would not necessarily have 19 any record of the fact that Dr. Smith had provided a 20 consulting opinion or an additional opinion in that case. 21 Is that also true? 22 DR. BARRY MCLELLAN: Yes, just to return 23 to your previous question, the original autopsy would have 24 been done under coroner's warrant. At this particular 25 time I don't know exactly what communication may or may
1071 not have taken place between Dr. Rasaiah and Dr. Smith. 2 It is certainly possible for a pathologist 3 to conduct another and extend and ask for assistance, and 4 that is really under the extension of the original 5 coroner's warrant. 6 MS. LINDA ROTHSTEIN: Right. 7 DR. BARRY MCLELLAN: But certainly Dr. 8 Smith was not in receipt of a coroner's warrant asking for 9 his, you know, assistance at the original -- 10 MS. LINDA ROTHSTEIN: All right. 11 DR. BARRY MCLELLAN: -- time, back in the 12 early '90s. 13 MS. LINDA ROTHSTEIN: That -- 14 COMMISSIONER STEPHEN GOUDGE: Surely he 15 would have been operating under the authority of the 16 original warrant to Dr. Rasaiah. 17 DR. BARRY MCLELLAN: Again, not being sure 18 at this moment and perhaps Ms. Rothstein can take me to a 19 passage here, it is potential at some point that a Crown 20 could request the assistance of a pathologist -- 21 COMMISSIONER STEPHEN GOUDGE: I see. 22 Okay. 23 DR. BARRY MCLELLAN: -- and that would be 24 outside of the coroner's warrant -- 25 COMMISSIONER STEPHEN GOUDGE: Okay.
1081 DR. BARRY MCLELLAN: -- so -- 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: And in this case I 5 can take you to it, Dr. McLellan. It's slightly 6 different. We know that Dr. Rasaiah requested the 7 assistance of Dr. Mian, who in turn requested the 8 assistance of Dr. Smith; Dr. Mian being at the time, the 9 head of the Suspected Child Abuse Team at the Sick Kids 10 Hospital. 11 So a rather -- those are the facts. In 12 your world was Dr. Smith someone who was operating under 13 the original warrant in that factual context or not? 14 DR. BARRY MCLELLAN: If no other parties, 15 such a Crown attorney, has made the request specifically, 16 all of that would be under the original coroner's warrant. 17 MS. LINDA ROTHSTEIN: All right. And 18 therefore your office would indeed have some record of Dr. 19 Smith's involvement in that? 20 DR. BARRY MCLELLAN: That is not as clear. 21 And -- 22 MS. LINDA ROTHSTEIN: Okay, help us with 23 that. 24 DR. BARRY MCLELLAN: Well, it would 25 certainly be an expectation now that all of the
1091 consultants who have been involved with a case, and 2 specifically if they have prepared a report or opinion, it 3 would the expectation that that would be part of our 4 record so that we would know all who had participated in 5 the ultimate opinion of -- that led to the conclusion with 6 respect to cause of death. 7 At that particular time pathologists on 8 occasion may have provided opinions and our office would 9 not have been aware. And there was an issue with Dr. 10 Smith in -- in other cases where our office was not aware 11 until sometime later that he had had involvement with a 12 case. 13 MS. LINDA ROTHSTEIN: And I think you and 14 I will come to some discussion of that when we get to the 15 procedures that were used in order to enable the Chief 16 Coroner's review. 17 You -- you encountered some of those 18 difficulties, if I can foreshadow that, is that fair, Dr. 19 McLellan? 20 DR. BARRY MCLELLAN: Yes. 21 MS. LINDA ROTHSTEIN: All right. So 22 having received Mr. Downes' request, can you describe for 23 the Commissioner what your reaction was? 24 DR. BARRY MCLELLAN: Well, I was 25 concerned, having received the letter, that -- without
1101 knowing all of the detail you've provided this morning -- 2 without knowing that at the time -- that attempts that had 3 been made by a number of individuals to obtain the 4 materials and those attempts had been unsuccessful. 5 So with that in mind, I asked Ms. 6 Zwolakowski from our office to assist and to see whether 7 or not we could, through our office at that time, locate 8 the -- the missing slides -- 9 MS. LINDA ROTHSTEIN: Right. 10 DR. BARRY MCLELLAN: -- and blocks. 11 MS. LINDA ROTHSTEIN: And Ms. Zwolakowski 12 held what position at the time, Dr. McLellan? 13 DR. BARRY MCLELLAN: She was an executive 14 officer in the -- in the office. She provided assistance 15 to Dr. Cairns specifically and also support for The 16 Paediatric Death Review Committee and at the time, The 17 Deaths Under Two Committee. 18 MS. LINDA ROTHSTEIN: Right. And so, as I 19 understand it, Dr. McLellan, she, together with Dr. 20 Cairns, engaged in efforts to locate the slides; they did 21 so at your request and under your direction. 22 If I understood what you told me the other 23 day you weren't personally involved in those specific 24 efforts. 25 Is that fair?
1111 DR. BARRY MCLELLAN: That's correct. I 2 did not go to The Hospital for Sick Children myself. 3 MS. LINDA ROTHSTEIN: And so what you're 4 about to outline for the Commissioner, just so he is 5 aware, isn't entirely firsthand knowledge but is the 6 knowledge that you have obtained in the course of your 7 duties from either Ms. Zwolakowski or Dr. Cairns, fair? 8 DR. BARRY MCLELLAN: That's correct. 9 MS. LINDA ROTHSTEIN: All right. 10 Commissioner, we're going to, where we can, avoid the 11 necessity of calling persons like Ms. Zwolakowski, and so 12 I've told Dr. McLellan to feel comfortable giving you what 13 will be in some measure at least, secondhand information 14 about the nature -- 15 COMMISSIONER STEPHEN GOUDGE: All right. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: -- of their 19 searches. 20 If you could turn up Tab 43 and, Registrar, 21 we're at 036 -- 003, sorry, my eyes, 662. 22 We have a case log there, Dr. McLellan, 23 that helps to reconstruct some of the dates of the events. 24 Can you describe for us -- based with that 25 as an aide memoire -- what your understanding of what the
1121 steps were that Ms. Zwolakowski, together with Dr. Cairns, 2 took to locate the slides? 3 DR. BARRY MCLELLAN: Dr. Cairns and Ms. 4 Zwolakowski attended at The Hospital for Sick Children on 5 November the 26th. They met with Dr. Smith at that time 6 with the goal of trying to locate the slides and blocks. 7 At that particular time, the slides and 8 blocks were not located, but on the 29th one of the other 9 staff at the hospital did locate the slides in Dr. Smith's 10 office at the hospital. 11 MS. LINDA ROTHSTEIN: Okay. But were they 12 able to locate the blocks? 13 DR. BARRY MCLELLAN: Not at that time. 14 MS. LINDA ROTHSTEIN: All right. And so 15 having located the twenty (20) microscopic glass sides -- 16 I gather they were twenty (20) in number from looking at 17 this document -- what happened next? 18 DR. BARRY MCLELLAN: Well, the slides were 19 brought to the Office of the Chief Coroner, and at that 20 time I was concerned that this was a smaller number than 21 the complete number of slides so I did request the 22 assistance of Dr. Pollanen in cataloguing the slides and 23 ensuring that we knew which slides we did have and did not 24 have. 25 MS. LINDA ROTHSTEIN: All right. So, Dr.
1131 Pollanen, take us from there, please. 2 COMMISSIONER STEPHEN GOUDGE: How did you 3 know there were more slides than you got back? 4 DR. BARRY MCLELLAN: At that time we did 5 have knowledge -- I'm not sure I can tell you at this 6 moment what the exact number was but it was, I believe -- 7 COMMISSIONER STEPHEN GOUDGE: I assume -- 8 DR. BARRY MCLELLAN: -- thirty-four (34). 9 Dr. Pollanen -- we knew -- 10 COMMISSIONER STEPHEN GOUDGE: From Dr. 11 Rasaiah how many you'd sent or something. 12 DR. BARRY MCLELLAN: We knew from a report 13 that we had available at that time what the number was 14 that was expected and this was short of the number. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 17 CONTINUED BY MS. ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: Dr. Pollanen, that 19 was your first involvement in the Mullins-Johnson case, if 20 I'm not mistaken? 21 DR. MICHAEL POLLANEN: Yes. The slides 22 were brought and essentially I was asked as Dr. McLellan 23 says to catalogue the slides. In other words, go through 24 an accounting exercise to -- to see what we had, what we 25 didn't have, and that was essentially done by comparison
1141 to the post-mortem report. 2 MS. LINDA ROTHSTEIN: And my understanding 3 is that that -- the request was made or -- and/or you 4 first began to look at those slides on December the 7th of 5 2004? 6 DR. MICHAEL POLLANEN: Correct, yes. 7 MS. LINDA ROTHSTEIN: All right. So you 8 got the slides and what did you see, Dr. Pollanen? 9 DR. MICHAEL POLLANEN: Well, initially I 10 had the autopsy report and the slides and when I initially 11 looked at the microscopic slides and compared them to the 12 autopsy report my initial conclusion was I must -- there 13 must be something missing in the -- in the set that I had, 14 because the tissues from the anus and the vagina were 15 essentially normal. 16 When I looked at the labelling of the 17 slides and made a straightforward comparison with the 18 autopsy report, I found that in fact I was not mistaken. 19 The tissues were in fact normal and that the histological 20 preparations had been misinterpreted. 21 At -- at that point in time, I was put into 22 an interesting situation where I had been requested to -- 23 to catalogue materials to facilitate transmission to 24 another expert, but the factual basis for opinions that 25 had been rendered in the autopsy report were clearly
1151 incorrect. 2 When I made further analysis of the autopsy 3 report -- at this point in time I did not have the 4 photographs -- it became apparent to me in the context of 5 the histology that I had that there may have been 6 misinterpretation of post-mortem artifacts, that is 7 features of lividity or post-mortem hypostasis. 8 At -- at this point in time I was very 9 concerned about -- about the discrepancies. And there 10 were two (2) options open to me at that point and that was 11 just to simply report the cataloguing of the slides or to 12 give a substantive view on the incompatibility of the 13 histologic preparations and the reports, so I communicated 14 my concerns to Dr. McLellan shortly thereafter. 15 MS. LINDA ROTHSTEIN: What was your 16 reaction, Dr. McLellan? 17 DR. BARRY MCLELLAN: Well, I -- I was 18 concerned by the information that Dr. Pollanen had given 19 to me. I should mention that there's one (1) step which 20 may not be critical here, in-between, and that's that on 21 November the 30th the Crown was in fact notified that the 22 slides had been located. 23 MS. LINDA ROTHSTEIN: Right. 24 DR. MICHAEL POLLANEN: I discussed the 25 matter with Mr. O'Marra in our office and I felt that we
1161 should arrange a meeting with the Crown -- 2 MS. LINDA ROTHSTEIN: Mm-hm. 3 DR. MICHAEL POLLANEN: -- to explain what 4 Dr. Pollanen had found with a recommendation that the 5 other necessary materials be obtained so that Dr. Pollanen 6 could review the matter with all relevant materials. 7 MS. LINDA ROTHSTEIN: And was such a 8 meeting in fact arranged? 9 DR. MICHAEL POLLANEN: Yes, it was. 10 MS. LINDA ROTHSTEIN: And can you assist 11 us to when that took place? I don't have a note of it, 12 sorry, but we will be able to find it I'm sure. 13 DR. BARRY MCLELLAN: I believe we can find 14 it in Mr. O'Marra's -- 15 MS. LINDA ROTHSTEIN: Okay. On -- Mr. 16 O'Marra -- 17 DR. BARRY MCLELLAN: -- file. It was 18 December the 10th, is my recollection. 19 MS. LINDA ROTHSTEIN: Right. Mr. 20 O'Marra's notes I'm told actually confirm that date, so 21 your memory is very good on that point. Thank you. 22 And so as a result of that meeting was a 23 decision reached, Dr. McLellan and Dr. Pollanen, as to 24 whether Dr. Pollanen should do at least some form of 25 report at that stage?
1171 DR. BARRY MCLELLAN: Yes, Mr. Downes 2 requested that that report be produced and indicated he 3 would assist with obtaining other materials. 4 MS. LINDA ROTHSTEIN: Okay. And am I 5 correct, Dr. Pollanen, that that decision resulted in the 6 first report that you prepared on this case, which is 7 dated January the 19th of 2005? 8 And, Commissioner, you'll find that at Tab 9 44. I'm not going to get into it at the moment, Dr. 10 Pollanen. I think since you did do another report we'll 11 try and do them together, and continue to walk through the 12 chronologically. 13 But that's the first report? 14 DR. MICHAEL POLLANEN: Yes. 15 MS. LINDA ROTHSTEIN: All right. So as 16 matters progress you have at least a first report, Dr. 17 McLellan, from Dr. Pollanen, and I understand that your 18 next step was then again to get into contact with the 19 Crown attorney, Mr. Downes, and advise him that you had in 20 fact received a report from Dr. Pollanen, and that in fact 21 that might want -- he might want to discuss that with Mr. 22 Ken Campbell? 23 DR. BARRY MCLELLAN: Correct. 24 MS. LINDA ROTHSTEIN: All right. I 25 understand that all of that was in order to allow
1181 disclosure of Dr. Pollanen's report to be made to Mr. 2 Bayliss, who was acting for Williams, Small and Strongsen 3 (phonetic)? 4 DR. BARRY MCLELLAN: That's correct. 5 MS. LINDA ROTHSTEIN: All right. And so 6 we can actually walk through, Commissioner, with you at 7 some stage, the database which reveals in various 8 documents, the process by which that occurred. The 9 process by which Mr. Campbell in fact provides -- receives 10 a copy of Dr. Pollanen's report on February the 11th of 11 2005. 12 You can make a note of 59281 which I think 13 is missing one (1) number regrettably, but we'll correct 14 that. 15 And Mr. Campbell sending a copy of Dr. 16 Pollanen's report to the trial Crown on February the 11th 17 at 059322, and indicating that he would be providing 18 defence cop -- counsel with a copy of the report within 19 the week. 20 And indeed on February the 16th of 2005, 21 Mr. Campbell providing a copy of Dr. Pollanen's report to 22 Mr. Bayliss. You might make a note, Mr. Commissioner, 23 059281. 24 I gather that by mid-February, Dr. 25 Pollanen, you and Dr. McLellan were considering at least,
1191 the possibility of other consulting forensic pathologists 2 becoming involved in a review of this case, is that true? 3 DR. MICHAEL POLLANEN: Yes. 4 MS. LINDA ROTHSTEIN: Can you assist us -- 5 I don't know who to ask first, as to how that decision was 6 reached? 7 DR. MICHAEL POLLANEN: I believe it was a 8 decision of the Crown actually. 9 MS. LINDA ROTHSTEIN: All right. 10 DR. MICHAEL POLLANEN: And they requested 11 appropriate names for -- for people who might make such a 12 review. 13 MS. LINDA ROTHSTEIN: And were you the 14 person to try to identify the names of such persons? 15 DR. MICHAEL POLLANEN: Well certainly I 16 was one (1) person asked, yes. 17 MS. LINDA ROTHSTEIN: Right. And who's 18 names did you come up with, Dr. Pollanen? 19 DR. MICHAEL POLLANEN: I -- that's 20 recorded in the letter, or memorandum to Dr. McLellan. 21 And the -- the names, and I'm actually reading from the 22 overview report here. 23 MS. LINDA ROTHSTEIN: It's also at Tab 46, 24 Commissioner, and, Mr. Registrar, 003957. It's a memo 25 from you, Dr. Pollanen, to Dr. McLellan, dated February
1201 the 17th of 2005. 2 DR. MICHAEL POLLANEN: Yes, and I've 3 indicated a list of pathologists that I thought would be 4 useful for this purpose, and that those include: 5 Professor Stephen Cordner of the Victorian Institute of 6 Forensic Medicine; Professor Jack Crane, who's a state 7 pathologist for northern Ireland; Dr. Peter Ellis, who is 8 a senior forensic pathologist at Westmead; Dr. Stephen 9 Leadbeater, who is in fact Professor Knight's successor in 10 Cardiff; Professor Chris Milroy from Sheffield; and 11 Professor Derrick Pounder from Dundee. 12 I also made a note that had the Defence not 13 already appoint Professor Knight, that he would be a 14 reasonable source for an expert opinion. 15 MS. LINDA ROTHSTEIN: Okay. Can you tell 16 us, Dr. Pollanen, which -- as of February 17th, 2005, 17 which if any of these proposed forensic pathologists you 18 knew personally? 19 Did you know Dr. Cordner personally at the 20 time? 21 DR. MICHAEL POLLANEN: Professor Cordner, 22 yes. I knew Professor Cordner, but none of the others. 23 MS. LINDA ROTHSTEIN: And how did you know 24 Professor Cordner? 25 DR. MICHAEL POLLANEN: Professor Cordner
1211 and I share an interest in human rights forensic 2 pathology, so we had worked in East Timor -- not, in fact, 3 at the same time, but during the -- the same general 4 period, and we had shared interest in issues that emerged 5 from that. 6 MS. LINDA ROTHSTEIN: So, given that you 7 didn't know Professor Crane, Dr. Ellis, Dr. Leadbeater, 8 Professor Milroy or Professor Pounder personally, how did 9 you come up with their names? Assist us with that, 10 please. 11 DR. MICHAEL POLLANEN: Well, I would 12 consider this list probably among the top people in the 13 discipline right -- currently. Professor Crane, Professor 14 Milroy and Professor Pounder all have quite a lot of 15 international experience. 16 And Dr. Peter Ellis; I'm not very familiar 17 with, but he had published in the -- in an area that 18 eclipsed the issues in the -- in the case at hand. 19 And Dr. Leadbeater has a reputation for 20 being a very careful and considerate forensic pathologist 21 and, in fact, writes in an area that Professor Cordner and 22 I write on which is determination of the cause of death 23 and the nature of -- of deduction in forensic pathology. 24 MS. LINDA ROTHSTEIN: All right. 25 DR. MICHAEL POLLANEN: To put it -- to put
1221 it sort of succinctly, I would say that if I were in a -- 2 in a situation where I would require a valued opinion on 3 one of my own cases, I would be happy to go to any of 4 these individuals. 5 MS. LINDA ROTHSTEIN: Now, there's some 6 further correspondence between Mr. Bayliss and Mr. 7 Campbell and so on that we can take you to, Commissioner. 8 But to carry on the chronology with these two (2) 9 witnesses -- we know, Dr. McLellan, that on March 31, 2005 10 you announced that an audit would be performed of all 11 tissue samples arising from all homicides and criminally 12 suspicious cases conducted at The Hospital for Sick 13 Children since 1991. 14 And there's no doubt about that, correct? 15 DR. BARRY MCLELLAN: That's correct. 16 MS. LINDA ROTHSTEIN: But the tissue audit 17 that you announced went beyond Dr. Smith's cases, as I 18 understand it. 19 DR. BARRY MCLELLAN: That's correct. 20 MS. LINDA ROTHSTEIN: All right. So can 21 you walk us through the reasoning process that you 22 developed that lead you to that decision? 23 COMMISSIONER STEPHEN GOUDGE: Can I just 24 understand exactly what it was? What did you announce on 25 March the 31st, Dr. McLellan?
1231 DR. BARRY MCLELLAN: I announced that a 2 tissue audit would be performed. This was at a time where 3 there was significant public attention around this 4 particular case; the fact that the slides had been 5 missing. 6 There was also previous concern about 7 another exhibit; a hair in the Jenna case that was 8 receiving significant public attention. 9 And I felt that it was appropriate, in 10 order to maintain public confidence in our ability to keep 11 track of our exhibits and materials from our autopsies, 12 that I announced this audit. 13 And because of -- of the fact that the 14 materials were at The Hospital for Sick Children, it 15 focussed on that hospital as opposed to an individual. 16 COMMISSIONER STEPHEN GOUDGE: And this was 17 an audit of tissues that were attained from autopsies done 18 by, not just Dr. Smith, but others? 19 DR. BARRY POLLANEN: That's correct. So 20 it was the homicide criminally suspicious cases going back 21 to when the Unit had opened at The Hospital for Sick 22 Children -- all of those cases, including any cases we 23 were aware of where materials may have been submitted to 24 the hospital and kept there for some reason. 25 COMMISSIONER STEPHEN GOUDGE: Was this an
1241 audit of their inventory process or of their skill in 2 reading the material? 3 DR. BARRY MCLELLAN: No, it was simply to 4 ensure that the slides, blocks and certain wet tissue 5 specimens could be accounted for. If there was evidence - 6 - documentation -- that these slides, tissue blocks, 7 specimens, should have been available because they were 8 taken at the time of autopsy, I wanted to ensure we could 9 account for them. 10 COMMISSIONER STEPHEN GOUDGE: You made 11 clear to us yesterday that it is obviously an essential 12 practice for, what Dr. Pollanen calls "reviewability", 13 that these exhibits be preserved for reviewability 14 purposes. 15 DR. MICHAEL POLLANEN: That is very 16 important. It's also -- it also was very important to me, 17 at the time, that the public had confidence in us, in our 18 cases; that we could actually account for the materials 19 that they would expect us to have. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Right. And, Dr. 23 McLellan, how are you proposing to have this tissue audit 24 conducted; by your staff, by The Hospital for Sick 25 Children's staff, a combination?
1251 DR. BARRY MCLELLAN: It was a combination. 2 At the time of the original announcement, I didn't have an 3 exact process in mind, so I worked with Dr. Taylor who at 4 this time was the Medical Director. 5 There are minutes which document a series 6 of meetings we had where we originally determined what the 7 extent of the audit should be; where the materials would 8 be found; the relative contributions of staff from our 9 office, and that's primarily Ms. Zwolakowski; which staff 10 would be assisting from The Hospital for Sick Children; 11 how the information would be recorded, so initially Ms. 12 Zwolakowski and I went to the hospital, met with Dr. 13 Taylor. 14 Subsequently, Ms. Zwolakowski attended at 15 The Hospital for Sick Children on many occasions. Dr. 16 Taylor, subsequently, came to my office for follow-up 17 meetings. I was also concerned that this audit be 18 completed in a timely fashion so that I could report, as I 19 -- I did later with, you know, the -- the results, which 20 were, as we'll come to, very positive. 21 MS. LINDA ROTHSTEIN: Okay, but just to 22 remind us all, at the time that you announced the audit, 23 the end of March, 2005, you had not yet -- your staff had 24 not yet located the tissue blocks in the Mullins-Johnson 25 case.
1261 DR. BARRY MCLELLAN: That's correct. 2 There were still outstanding slides and tissue blocks -- 3 MS. LINDA ROTHSTEIN: Right. 4 DR. BARRY MCLELLAN: -- from that case. 5 MS. LINDA ROTHSTEIN: Right. And, in 6 fact, how long did the tissue audit take to complete, Dr. 7 McLellan? 8 9 (BRIEF PAUSE) 10 11 DR. BARRY MCLELLAN: I'm just looking for 12 my actual announcement. I'm not sure if you can assist -- 13 MS. LINDA ROTHSTEIN: You've reported on 14 the results on June the 7th, Dr. McLellan? 15 DR. BARRY MCLELLAN: Which tab might that 16 be? 17 MS. LINDA ROTHSTEIN: Tab 60. 18 DR. BARRY MCLELLAN: Thank you. So, the - 19 - the audit took approximately six (6) weeks, so I -- I 20 can try and find a specific date, but I can tell you in 21 memory it was approximately six (6) weeks, and I can tell 22 you that there was a lot of work done in the six (6) week 23 period. 24 Staff from the hospital; Ms. Zwolakowski 25 worked very had on this. Dr. Taylor was of great
1271 assistance and I did announce the results on June 7th. 2 COMMISSIONER STEPHEN GOUDGE: Was Ms. 3 Zwolakowski essentially your person doing the audit? 4 DR. BARRY MCLELLAN: Yes. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Before we get to 8 that announcement I want to go back and just fill in a few 9 blanks about some of the other things that were happening 10 in relation to the Mullins-Johnson case. 11 I gather, Dr. Pollanen, that at some stage 12 you indeed authored a second report; that was in May of 13 that year? 14 DR. MICHAEL POLLANEN: Yes. 15 MS. LINDA ROTHSTEIN: All right, May 26th, 16 and Commissioner, we -- we are going to come to that, but 17 you can take note that that's at Tab 59 and that, I 18 understand it, is because the tissue audit was able to 19 discover the twenty-eight (28) paraffin tissue blocks and 20 ten (10) microscopic slides that had been missing, with 21 respect to that case, in early May. 22 DR. MICHAEL POLLANEN: Correct, yes. 23 MS. LINDA ROTHSTEIN: All right. And, 24 Commissioner, I don't have the tab number. I do have the 25 document number -- 059254 -- which is -- there it is --
1281 which is a letter from Mr. Campbell of the Crown Law 2 Office to Mr. Bayliss advising, I believe -- you can look 3 at it -- that the twenty-eight (28) paraffin tissue blocks 4 and ten (10) microscopic slides had been found, if we go 5 to the second page. 6 Okay, so I will get you the right number 7 for that at the break. We do have a letter dated May 9th. 8 COMMISSIONER STEPHEN GOUDGE: Well, that 9 is it. 10 MS. LINDA ROTHSTEIN: Is it? 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 MS. LINDA ROTHSTEIN: Okay, it's just my 13 eyes, then. 14 COMMISSIONER STEPHEN GOUDGE: Yes. No, it 15 is May 9. 16 MS. LINDA ROTHSTEIN: Okay, good. 17 COMMISSIONER STEPHEN GOUDGE: There is 18 just nothing on the second page of that -- 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Okay. And so, Dr. 22 Pollanen, you, in turn, reviewed that new material and 23 used it to consider whether any of your initial opinions 24 had to be supplemented or changed? 25 DR. MICHAEL POLLANEN: Correct. Yes.
1291 MS. LINDA ROTHSTEIN: And you will take us 2 through that in a few minutes I expect. 3 And indeed that report, Commissioner, was 4 forwarded by Mr. Campbell -- that is to say, Dr. 5 Pollanen's May 26th, 2005, report was forwarded to Mr. 6 Campbell on May the 30th. That's in our database at 7 059251. And that, I think, does take us back, Dr. 8 McLellan, to Tab 60, which is your announcement of June 9 7th, 2005. 10 So, Dr. McLellan, your announcement on that 11 date -- and may we have, please, Registrar, 033962 -- 12 reflects that some seventy (70) cases were identified as a 13 result of the audit? 14 DR. BARRY MCLELLAN: That's correct. 15 MS. LINDA ROTHSTEIN: Going into it, did 16 the Coroner's Office have any sense of the number of cases 17 in which the tissue audit was relevant? 18 DR. BARRY MCLELLAN: Going into it, we 19 didn't know exactly how many cases but as a result of 20 comparing our records with those of Sick Kids, seventy 21 (70) cases were identified. That was approximately what 22 we had thought. 23 MS. LINDA ROTHSTEIN: And up until that 24 time, had there ever been an attempt to corelate, to use I 25 think the appropriate verb, the records of the Coroner's
1301 Office with the records of The Hospital for Sick Children 2 in relation to coroner's warranted post-mortems at that 3 hospital? 4 DR. BARRY MCLELLAN: No. 5 MS. LINDA ROTHSTEIN: All right. And 6 would it be fair to tell the Commissioner that that wasn't 7 an easy exercise given the lack of, as I understand it, 8 electronid -- electronic records? 9 DR. BARRY MCLELLAN: No. As I indicated 10 earlier, this was very resource-intensive and again 11 completed, in my opinion, in a very short period of time. 12 MS. LINDA ROTHSTEIN: All right. 13 And your announcement also reflects that 14 Dr. Smith was the pathologist in forty (40) of those 15 seventy (70) cases? 16 DR. BARRY MCLELLAN: That's correct. 17 MS. LINDA ROTHSTEIN: All right. You do 18 reflect that there were a very few cases in which a small 19 number of microscopic slides could not be found, but in 20 all of those cases the tissue blocks had been identified 21 which would allow new slides to be prepared. 22 And can I just stop there, Dr. Pollanen, 23 and ask you whether, in fact, having the original tissue 24 blocks is sufficient in most cases of -- in most cases -- 25 DR. MICHAEL POLLANEN: Yes.
1311 MS. LINDA ROTHSTEIN: -- of forensic 2 pathology? 3 DR. MICHAEL POLLANEN: Yes. 4 MS. LINDA ROTHSTEIN: Am I right in 5 understanding that there's the very odd neuropathological 6 case where, perhaps, you need the original slides but 7 those are very, very rare? 8 DR. MICHAEL POLLANEN: There are different 9 cases where that applies. 10 MS. LINDA ROTHSTEIN: Okay. And you also 11 note that as a result of the audit, tissue blocks arising 12 from the autopsy of a four (4) year old girl that were 13 previously unaccounted for were located. That is a 14 reference, indeed, to Valin's case, is it not, Dr. 15 McLellan? 16 DR. BARRY MCLELLAN: Yes, it is. 17 MS. LINDA ROTHSTEIN: Right. These tissue 18 blocks were located in Dr. Smith's office at The Hospital 19 for Sick Children. Can you tell us about that; what you 20 understand to be the location of those slides -- or 21 rather, those tissue blocks? 22 DR. BARRY MCLELLAN: I can't today 23 actually tell you the exact location within the office, 24 but there were a number of searches made through Dr. 25 Smith's office through the audit process, and on one of
1321 those occasions, the tissue blocks and slides were found. 2 MS. LINDA ROTHSTEIN: Okay. 3 COMMISSIONER STEPHEN GOUDGE: Did your 4 audit reveal whether the Hospital had a protocol for 5 keeping this material? 6 DR. BARRY MCLELLAN: It was determined 7 that through much of this period of time they did not, but 8 as a result of some important work that Dr. Taylor did, he 9 developed a protocol -- prior to the time of this audit 10 taking place -- to ensure that materials could be tracked 11 very well going into and out of the Hospital. 12 13 CONTINUED BY MS. ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: Just before we 15 continue with the rest of that announcement, Mr. Centa 16 helpfully advises me that 142476, Registrar, reflects the 17 minutes that Ms. Zwolakowski kept that you referred to, 18 Dr. McLellan, and records the details of her visit on May 19 the 6th, 2005. 20 I can't speak into the microphone and read 21 it at the same time, but it would appear to -- there we 22 go, thank you. 23 So, Commissioner, this would appear to 24 reflect the minutes that she took on the day that the 25 additional slides were discovered.
1331 "At approximately 2:30 p.m., while 2 continuing with clean-up and audit of 3 Dr. Smith's office, M. Johnson located 4 seven (7) microscopic glass slides for 5 the Valin case. She contacted Dorothy 6 Zwolakowski at the OCC who then attended 7 Hospital for Sick Children to receipt -- 8 retrieve the slides [excuse me]. On 9 arrival at the hospital, Dorothy 10 Zwolakowski was informed that M. Johnson 11 had located the paraffin blocks, again 12 for that same case, Valin's case, in Dr. 13 Smith's office. Dorothy Zwolakowski 14 continued to assist M. Johnson in 15 sorting through a number of loose slides 16 which were labelled with various case 17 numbers. On sorting through these 18 slides, three (3) additional microscopic 19 glass slides were located for that same 20 case. Dorothy Zwolakowski returned the 21 slides and blocks relating to the case 22 to the OCC, and informed Dr. McLellan of 23 above. These items have been secured at 24 the OCC." 25 COMMISSIONER STEPHEN GOUDGE: What is the
1341 PFP number for that? 2 MS. LINDA ROTHSTEIN: The PFP number for 3 that is 142476. 4 COMMISSIONER STEPHEN GOUDGE: Thank you. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: So, Dr. McLellan, 8 these are the sorts of minutes that your staff member, Ms. 9 Zwolakowski, kept throughout the auditing process. 10 Is that what you understand? 11 DR. BARRY MCLELLAN: Yes. To be complete, 12 the minutes were generated either by myself, Dr. Taylor or 13 Ms. Zwolakowski. In most circumstances they were created 14 by Ms. Zwolakowski. 15 MS. LINDA ROTHSTEIN: So, going back to 16 your announcement on June the 7th of 2005 -- Registrar, 17 033962, and we're on the second page of that document. 18 Dr. McLellan, suffice it to say your 19 announcement went beyond the announcement of the results 20 of the tissue audit. 21 DR. BARRY MCLELLAN: Yes, it did. 22 MS. LINDA ROTHSTEIN: Would you tell us 23 about that, please, in your own words? 24 DR. BARRY MCLELLAN: Well, at this time, 25 there were other events taking place. Correspondence had
1351 been directed to myself. I'd been copied on other 2 correspondence where there were requests to have a public 3 inquiry. There was -- 4 MS. LINDA ROTHSTEIN: And those requests 5 were from the Criminal Bar? 6 DR. BARRY MCLELLAN: They were from 7 AIDWIC. 8 MS. LINDA ROTHSTEIN: Okay. 9 DR. BARRY MCLELLAN: There were further 10 concerns appearing in the media about cases, and now 11 information coming out about the Valin case. And I was 12 concerned, as Chief Coroner, that notwithstanding the 13 positive results of the audit, that I needed to go further 14 in order to maintain the public confidence in the very 15 important day-to-day work being done by coroners, 16 pathologists and others. 17 So, at this time, I also announced that a 18 review would take place. 19 MS. LINDA ROTHSTEIN: A "formal review" is 20 the language that you use in the second paragraph. 21 DR. BARRY MCLELLAN: Right. And I'm -- 22 I'm actually referring to my speaking notes at the same 23 time as -- as well -- 24 MS. LINDA ROTHSTEIN: Are you? 25 DR. BARRY MCLELLAN: -- but, yes, it was a
1361 formal review. It was defined at that time as being 2 external. In other words, it would involve pathologists 3 external to the office. But at this particular time, the 4 process had yet to be worked out. 5 And I announced at that time that advice 6 with respect to the process would be provided through the 7 Forensic Services Advisory Committee. 8 MS. LINDA ROTHSTEIN: Right. So, 9 Commissioner, Dr. McLellan has made reference to his 10 speaking notes which you'll find at the next Tab, 61, and, 11 Registrar, 033964. 12 And if you would turn to the third page of 13 that document. 14 That's great. If you can just blow up the 15 bottom paragraph a little bit. There you do indeed 16 reflect, Dr. McLellan, that there had been calls for a 17 public inquiry into a number of cases where Dr. Smith 18 conducted autopsies or provided opinions. 19 Up until this stage have you had any 20 conversations with your superiors, the Commissioner in 21 MCSCS, about the possibility that there might indeed be a 22 public inquiry called into this matter? 23 DR. BARRY MCLELLAN: Yes, I did. At this 24 particular time it was the Assistant Deputy Minister. 25 MS. LINDA ROTHSTEIN: Right.
1371 DR. BARRY MCLELLAN: The Commissioner 2 position that we reported directly to developed later. I 3 did meet with the Assistant Deputy Minister and my 4 specific concern at that time was that I was aware that 5 the Attorney General had received a request from AIDWIC 6 for a public inquiry. 7 As noted here and in further notes to 8 follow, as Chief Coroner, I didn't have the authority to - 9 - to call a public inquiry. I did have the authority to 10 announce this review and the review was -- was 11 subsequently conducted. 12 I didn't want to be in a position where I 13 was going to announce this formal external review and have 14 some subsequent announcement days or weeks later that 15 there was going to be a public inquiry, so I did make 16 inquiries as to whether or not the ADM from our Ministry 17 had any knowledge as to whether the Attorney General was 18 going to respond to the letter; not that I needed to know 19 what the response was, but whether or not there was going 20 to be a response. 21 I was unable to obtain information that 22 there was going to be a response and I subsequently made 23 this announcement on June 7th. 24 MS. LINDA ROTHSTEIN: All right. And 25 accordingly, if we continue to your second sentence, which
1381 has been blown up: 2 "As Chief Coroner, I am announcing this 3 formal review at this time, pending any 4 response on the part of Government to 5 these calls for a public inquiry, in an 6 effort to ensure that the conclusions 7 reached by Dr. Smith in his autopsy or 8 consultation reports can be supported by 9 the information and materials available, 10 including the tissues and slides 11 identified as a result of the tissue 12 audit." 13 I take it from what you've told us, Dr. 14 McLellan, that what you were saying is, you're going to 15 get going because you still can't be certain as to whether 16 or not the Government is going to heed the calls for a 17 public inquiry and act. 18 DR. BARRY MCLELLAN: That's correct. 19 MS. LINDA ROTHSTEIN: All right. And then 20 you go on to say, as you've described -- page 4, please, 21 Registrar -- that the specific format for this review was 22 going to be left to others to help you with, and 23 specifically, the Forensic Services Advisory Committee. 24 DR. BARRY MCLELLAN: Correct. Now, I -- I 25 can tell you I did actually say that I would be announcing
1391 the specific format for the review in a few weeks time and 2 I didn't hold to that schedule, as you'll hear when we go 3 to the next announcement, and that relates to the 4 complexity of the review process. 5 MS. LINDA ROTHSTEIN: Right. And I expect 6 that after lunch, Commissioner, Dr. McLellan and Dr. 7 Pollanen will spend some time with us walking through the 8 work that the Forensic Advisory Committee did to come up 9 with the design of the formal review that was eventually 10 undertaken. But I don't want to get ahead of ourselves, 11 so chronologically we are at the stage where Dr. Pollanen 12 has authored two (2) reports in the Valin case. 13 But before I call on Dr. Pollanen to walk 14 us through the details of that case -- which perhaps we 15 shouldn't start until after lunch -- I just wanted to 16 remind you, Commissioner, that a number of medical experts 17 had expressed opinions in writing and at trial in Valin's 18 case. 19 First, as I mentioned, was Dr. Rasaiah, the 20 Pathologist who performed the autopsy and who completed 21 the post-mortem examination and testified at trial. And 22 reference to that can be found in paragraphs 32 and 91 of 23 the overview report. Secondly, Dr. Zare (phonetic), a 24 gynecologist with a speciality in child sexual abuse, whom 25 Dr. Rasaiah asked to attend the autopsy, the examine
1401 Valin, because Dr. Rasaiah had concerns about the 2 possibility of sexual abuse. 3 And you will find reference to that in 4 paragraphs 36, 38, and 91. 5 Dr. Mian, who I've also mentioned, 6 Commissioner, the Director of the Suspected Child Abuse 7 and Neglect Team at The Hospital for Sick Children, 8 otherwise referred to as SCAN. 9 Paragraph 72 of the overview report 10 reflects -- or records rather, that Dr. Rasaiah consulted 11 her for an opinion, and she in turn consulted Dr. Smith. 12 Dr. Mian and Dr. Smith reviewed the autopsy photos and 13 jointly authored a report, and both testified at the 14 trial. That is recorded at paragraph 91. 15 And in addition, there were two (2) 16 pathology witnesses for the defence, Dr. Jaffrey 17 (phonetic) who is referred to in paragraph 80 of the 18 overview report, and Dr. Ferris (phonetic) who is referred 19 to in paragraph 84 and 91 of the overview report. 20 Dr. Pollanen, have I listed the key 21 pathology witnesses that had expressed opinions in the 22 case at the time that you came to review it? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. LINDA ROTHSTEIN: All right. Dr. 25 Pollanen then --
1411 COMMISSIONER STEPHEN GOUDGE: Are you 2 about to go to Dr. Pollanen? 3 MS. LINDA ROTHSTEIN: I was. 4 COMMISSIONER STEPHEN GOUDGE: Would it be 5 better if we did all this in a piece? 6 MS. LINDA ROTHSTEIN: I think so. 7 COMMISSIONER STEPHEN GOUDGE: Okay. To 8 keep to our hour and 15 minutes, lets reconvene just 9 between five (5) after and ten (10) after 2:00. 10 MS. LINDA ROTHSTEIN: Thank you. 11 COMMISSIONER STEPHEN GOUDGE: We'll 12 adjourn for lunch. 13 14 --- Upon recessing at 12:52 15 --- Upon resuming at 2:07 p.m. 16 17 COMMISSIONER STEPHEN GOUDGE: Ms. 18 Rothstein...? 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Thank you very much, 22 Commissioner. We're back, Dr. Pollanen, Commissioner, at 23 Tab 44. Mr. Riley, it's 059642. 24 Dr. Pollanen, this is your January 19th, 25 2005 report; the first report and opinion that you gave on
1421 the death of Valin. 2 DR. MICHAEL POLLANEN: Do you have a tab? 3 MS. LINDA ROTHSTEIN: Yes, I do. It 4 should be at your Tab 44. 5 So, Dr. Pollanen, you have -- you have 6 already walked us through the process by which you came to 7 write this report. You've explained to us at the time 8 that you had photographs from the post-mortem. You had 9 twenty (20) microscopic slides, but not all of them. And, 10 indeed, you make reference to that at the bottom of page 3 11 of your report. That's page 3 of that document, 12 Registrar. 13 And you carefully record in that bottom 14 paragraph: 15 "Thus, my conclusions are restricted to 16 the slides that have been made 17 available, and that the validity of my 18 conclusion may be affected by the 19 inability to review all the original 20 materials." 21 Are there any other procedural issues that 22 you think are important for the Commissioner to understand 23 before you and I begin to walk through the substantive 24 conclusions that you reached in this first report? 25 DR. MICHAEL POLLANEN: Yes. I think the -
1431 - the first point is that the review of a post-mortem 2 examination transits through the five (5) steps that I've 3 previously indicated. 4 But the pathologists, when they're writing 5 their report, often will choose to frame it according to 6 issues. It's a -- these are just different stylistic 7 approaches. 8 So, for example, in this -- in this report, 9 I very quickly come to identify what the substantive 10 medical/legal issues are, and then go through a detailed 11 reconstruction of the pathological evidence relative to 12 those issues. 13 That is a little bit different from the 14 classical approach in that you might write descriptions on 15 every single slide that's present, et cetera; that's not 16 the approach I -- I chose for this document, largely 17 because I wanted to communicate the main issues -- 18 MS. LINDA ROTHSTEIN: Okay. 19 DR. MICHAEL POLLANEN: -- being -- 20 MS. LINDA ROTHSTEIN: And those main -- 21 sorry. 22 DR. MICHAEL POLLANEN: And the -- the 23 second sort of issue, in terms of a greater context, is 24 that the second opinion report does not have, as its 25 focus, a critical analysis of another expert's opinion if
1441 it's not necessary to advance your own opinion without 2 being critical. 3 So, in other words, you have to -- the -- 4 the view -- because you're giving a second opinion report 5 does not necessarily mean that you are deconstructing all 6 elements of the previous pathologist's opinion. 7 COMMISSIONER STEPHEN GOUDGE: You are not 8 critiquing the first report. 9 DR. MICHAEL POLLANEN: Correct. Because 10 there -- in some circumstances, the goal of reviewing 11 somebody's work may be quite different, but that was not 12 the purpose of this report. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Right. 16 DR. MICHAEL POLLANEN: It was to identify 17 and explain my own opinions in the case. 18 MS. LINDA ROTHSTEIN: So, Dr. Pollanen, as 19 I understand it, you focussed in, at least at this stage, 20 on three main forensic pathological issues. They're 21 described at the top of page 5 of that document, please, 22 Registrar, and you could identify those for us, please? 23 DR. MICHAEL POLLANEN: Clearly, one (1) of 24 the central issues was, is there evidence of acute 25 penetrating anal trauma; second, is the cause of death
1451 mechanical asphyxia, and third, was is the time of death. 2 MS. LINDA ROTHSTEIN: All right. And in 3 dealing with that first issue, is there evidence of acute 4 penetrating anal trauma, can you just give the 5 Commissioner a bit of a recap, if you will, about why this 6 was such a central issue to this case? 7 DR. MICHAEL POLLANEN: Well, in my 8 understanding of the -- the sort of intersection of the 9 legal and the medical in this circumstance is that the -- 10 the charge of first degree murder was linked to sexual 11 assault occurring during the homicide or punitive 12 homicide, and on that basis the anogenital injuries became 13 of critical importance, and that, I think, is a general 14 theme in forensic pathology. 15 We pay very close attention to anogenital 16 injuries because they have sort of a disproportionately 17 large legal consequence. 18 MS. LINDA ROTHSTEIN: Okay. Dr. Pollanen, 19 I know before lunch you and I spoke about some of the 20 slides that you prepared and are -- indeed form appendices 21 to your report and were even presented as part of the viva 22 voce evidence that you gave in the Ontario Court of 23 Appeal. 24 I forgot to ask you whether you and the 25 Registrar had sorted out a way of making use of those
1461 slides in the course of this afternoon's evidence. 2 DR. MICHAEL POLLANEN: We have. 3 MS. LINDA ROTHSTEIN: Okay. So, I'm going 4 to leave it to you, then, Dr. Pollanen, to direct the 5 Registrar where it would assist you, since I'm not 6 familiar with the numbering that you've come up with. 7 And can I just tell you, Mr. Commissioner, 8 that obviously some of these slides, some people will find 9 quite disturbing and the screens in the media room have 10 been blocked of these particular photographs. 11 COMMISSIONER STEPHEN GOUDGE: I think 12 that's just being checked. 13 14 (BRIEF PAUSE) 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: Okay. Dr. Pollanen, 18 did you want to deal with the first issue, then, and walk 19 us through the basis on -- or the manner in which you 20 approached it. What -- what the basic approach was that 21 you adopted in answering the question, is there evidence 22 of acute penetrating anal trauma? 23 DR. MICHAEL POLLANEN: The approach that I 24 used for all the questions was an evidence-based approach 25 and this paid attention to the literature, where
1471 available, and the primary reviewable evidence. 2 And on page 5 of my report I introduce the 3 analysis by indicating that these issues are issues of 4 primary concern in forensic pathology, and also that our 5 state of knowledge is progressive over time. 6 I've said knowledge is not frozen and that 7 is a -- that is a feature of scientific disciplines is 8 they -- the knowledge grows over time as we attain more 9 experimental data or more observational data. 10 And as will become apparent, there is a 11 critical publication that appeared in the medical 12 literature in 1996 which is quite relevant to this case. 13 MS. LINDA ROTHSTEIN: All right. 14 DR. MICHAEL POLLANEN: So the first 15 question I dealt with was: Is there evidence of acute 16 penetrating anal trauma? And I've chosen to approach this 17 question in three (3) steps, and the first step is, I give 18 a background about how a pathologist approaches that 19 question in general. 20 So, in other words, this is really not very 21 case specific, just looking at the principles of how a 22 pathologist would answer that question. 23 And then I talk about how the diagnosis was 24 made in this particular case, and then I go through a 25 review of that diagnosis.
1481 MS. LINDA ROTHSTEIN: All right. Well, 2 that seems a sensible approach for us, as well, Dr. 3 Pollanen, so can I ask you to assist the Commissioner with 4 the answer to the first question: How do forensic 5 pathologists approach the question in general? 6 DR. MICHAEL POLLANEN: Well, as I've 7 indicated, there -- there are essentially two (2) groups 8 of pathological evidence that are useful in making the 9 diagnosis. And if you want to take it down to sort of 10 basic operations, it's -- in the context of review, 11 photographs and slides. So this represents the appearance 12 of the anal/genital region at autopsy by naked eye 13 inspection and then examination under the microscope on 14 samples that have been cut from the body. 15 MS. LINDA ROTHSTEIN: All right. 16 DR. MICHAEL POLLANEN: Now, in addition to 17 that, what is important to realize is that forensic 18 scientific evidence may also be helpful, and that is 19 evidence that comes from swabs, for example, or body 20 orifices which may contain things like spermatozoa and 21 alkaline phosphatase, other evidence of seminal emission. 22 Or, indeed, trace evidence in the form of hairs that are 23 transferred from the assailant to the victim. 24 So there's sort of broad categories of 25 evidence, scientific evidence, and medical evidence.
1491 Medical evidence coming from naked eye inspection and then 2 microscopic examination. 3 MS. LINDA ROTHSTEIN: So dealing first 4 with naked eye inspection, in your case, photographic 5 evidence. Can you tell us, first, what had been the 6 evidence at trial that the previous autopsy pathologist 7 had suggested was evidence in -- to the naked eye, acute 8 anal/genital injury? 9 DR. MICHAEL POLLANEN: Well, you've talked 10 specifically about the autopsy pathologist and I haven't 11 been so granular in my -- 12 MS. LINDA ROTHSTEIN: Fine. 13 DR. MICHAEL POLLANEN: -- distribution -- 14 MS. LINDA ROTHSTEIN: Okay. 15 DR. MICHAEL POLLANEN: -- of that. 16 MS. LINDA ROTHSTEIN: Okay. 17 DR. MICHAEL POLLANEN: I can certainly 18 tell you that the opinions at trial of some of the experts 19 was that the naked eye evidence of the anus of Valin 20 supported the view of anal abuse, chronic anal abuse, in 21 fact. 22 MS. LINDA ROTHSTEIN: And why was that? 23 DR. MICHAEL POLLANEN: And that was based 24 upon the appearance of a dilated anus. 25 MS. LINDA ROTHSTEIN: Right.
1501 DR. MICHAEL POLLANEN: Now the -- that, of 2 course, we'll come to in due time but the -- we know as a 3 -- as a matter of standard textbooks in forensic pathology 4 that the dilated or patulous anus is a recognized pitfall 5 in forensic medicine, that is, that we know the anus 6 dilates or can dilate after death and is a pitfall for the 7 post-mortem diagnosis of anal abuse. 8 MS. LINDA ROTHSTEIN: Stopping there just 9 for a moment, Dr. Pollanen. You're using present tense to 10 express the view. For how long has that been known by 11 your profession? 12 DR. MICHAEL POLLANEN: Well, it's -- it's 13 present in very old forensic textbooks as well. I think 14 it would be fair to say that the -- that issue has grown 15 over time. Understanding of that issue has evolved over 16 time and is best evidenced by the fact that the definitive 17 study on the issue was published in 1996. 18 COMMISSIONER STEPHEN GOUDGE: Is that the 19 publication you were referring to? 20 DR. MICHAEL POLLANEN: Yes. And this 21 publication obviously was done because it was recognized 22 as an issue in medico-legal work. 23 24 CONTINUED BY MS. ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Right. But just so
1511 we have a sense of how much that was recognition of an 2 issue that had been discussed elsewhere but perhaps not as 3 comprehensively, you talk about a study in '96, we know 4 that the autopsy was done in '94. 5 So can you assist us with what the state of 6 knowledge would have been on that issue of the potential 7 problems created by naked eye observation of anal dilation 8 two (2) years prior to the publication of this study? 9 DR. MICHAEL POLLANEN: It certainly would 10 appear in the major textbooks of that time. 11 MS. LINDA ROTHSTEIN: Okay. So continue, 12 please, Dr. Pollanen, to walk us through the -- the way 13 one (1) has to deal with this complicated issue of anal 14 dilation. 15 DR. MICHAEL POLLANEN: Well, essentially, 16 we can then -- we can go to making the diagnosis in this 17 case, which is the next heading in my report. 18 MS. LINDA ROTHSTEIN: So we're at page 6, 19 Commissioner, and it's page 6 also, Mr. Registrar, of the 20 Begdoc. 21 DR. MICHAEL POLLANEN: And here a number 22 of features from the autopsy come into play. And the 23 first is that the autopsy findings indicated that the anus 24 was dilated. And in fact the autopsy pathologist Dr. 25 Rasaiah, had measured the anal opening as 1.7 by 1.4
1521 centimetres. And now would be a good time to go to the 2 photos, and -- 3 MS. LINDA ROTHSTEIN: So is it the first 4 photo that you want, Dr. Pollanen? 5 DR. MICHAEL POLLANEN: Yes. So just by 6 way of explaining these two (2) photographs, because on 7 first glance they are perhaps a bit shocking. The body -- 8 this is the -- this is the body of Valin in the autopsy 9 room. 10 The upper photograph shows the anus after 11 the legs have been elevated and spread apart, and the 12 second lower photograph shows the body that's been placed 13 on the front and then put into the knee chest position. 14 In other words, the body has been 15 positioned this way on the autopsy table. And I think you 16 can see immediately that the anus appears gapping. And 17 two (2) things flow just on superficial examination of the 18 -- of these photos. 19 The first is that the position of 20 photography is really one that accentuates the dilation. 21 And second, there can be no doubt the anus is dilated. 22 And this pattern of anal dilation is quite characteristic 23 of the phenomena of port-mortem anal dilation. 24 If you look carefully along the margins of 25 the anus, you will in fact see no evidence of injury. And
1531 this is a -- this is an interesting observation, because 2 this is precisely what Dr. Rasaiah said at post-mortem, 3 that the anus was dilated, but there was no evidence of 4 injury on the margin of the anus. 5 This was in stark contrast to examinations 6 made on photographs and described in a report by Dr. Mien 7 and Dr. Smith, who suggested there may in fact be injuries 8 around the margin of the anus. 9 But in fact, there are none. 10 MS. LINDA ROTHSTEIN: And I take it if 11 young Valin had been sodomized, one would indeed expect to 12 see the injuries present around the margins of the anus as 13 well? 14 DR. MICHAEL POLLANEN: Well I -- the -- 15 the preferable opinion would be that if one had anogenital 16 injury, in terms of laceration, bruising, or other 17 features of injury of the margin of the anus, that would 18 form a good foundation -- 19 MS. LINDA ROTHSTEIN: Okay. 20 DR. MICHAEL POLLANEN: -- for making that 21 diagnosis. 22 MS. LINDA ROTHSTEIN: Okay. 23 DR. MICHAEL POLLANEN: So, the issue then 24 that we have here is one of diameter. It's a quantitative 25 issue, and this is where the study -- the 1996 study of
1541 McMannon (phonetic) becomes so important. Because 2 McMannon et al did in their study, was make a survey of 3 the anal appearances in children over a fairly 4 comprehensive age spectrum in children that were in the 5 normal spectrum. So, in other words, these are not 6 children that had been anally abused or -- these are 7 children that -- that died and came to autopsy in the 8 normal course of events. And that's the second photograph 9 in the slide show, which shows four (4) post-mortem 10 photographs taken from the study of McMannon showing the 11 range of naked eye appearances in the anus. 12 Now what is very interesting about these 13 photographs is first of all, quite -- quite clearly, in 14 all instances, the anus is dilated. Second, that in fact 15 the agent -- the anal margin appears somewhat more 16 irregular even compared to the case of Valin. 17 So the -- the issue that is -- that was 18 made in the McMannon study was that the post-mortem 19 appearance, the qualitative appearance of the anus, is not 20 particularly valuable in determining whether or not the 21 anus has been assaulted and, secondly, that when they 22 measured the anal opening, the diameter of the anal 23 opening, and they set up a sort of -- essentially a range 24 by age, that the measurements that come from Valin's post- 25 mortem examination are, in fact, not out of spectrum.
1551 MS. LINDA ROTHSTEIN: Right. 2 DR. MICHAEL POLLANEN: Now, that is even 3 more interesting when you examine the report of Dr. Zare 4 because, in fact, in Dr. Zare's report she also measures 5 the anus and comes with a measurement that is, in fact, 6 lower than Dr. Rasaiah's. 7 MS. LINDA ROTHSTEIN: And stopping there 8 for a moment, Dr. Pollanen, can you assist the 9 Commissioner with your views as to the advisability of Dr. 10 Zare having been present at this autopsy to provide her 11 views of whether or not young Valin had been assaulted? 12 She doesn't come as a forensic pathologist, 13 she doesn't even come as a pathologist, can you assist us 14 with that? 15 DR. MICHAEL POLLANEN: It's a pitfall. 16 It's a pitfall because the central issue in interpreting 17 the anal appearance in this circumstance comes with 18 understanding post-mortem phenomenon. So a clinician who 19 is not familiar, does not understand the scope of -- of 20 issues related to post-mortem changes is not in a very 21 strong position to -- to give an opinion on those matters. 22 Now, this is not meant to -- to be at all 23 disrespectful to Dr. Zare, I have no view that she was 24 doing anything that she thought was improper in the case, 25 and I don't know what her experience is with the post-
1561 mortem anal appearance of children, but my view would be 2 that this is firmly within the realm of forensic pathology 3 and that forensic pathologists are best able to give an 4 opinion on the matter. 5 MS. LINDA ROTHSTEIN: All right. All 6 right, I interjected at the point that you were I think 7 developing the analysis that the mic -- the macroscopic 8 observations provide no evidence, if I hear you correctly, 9 Dr. Pollanen, of anal abuse in this case and one (1) is 10 forced to look at the histological evidence. 11 DR. MICHAEL POLLANEN: Exactly, so now 12 we're at the point where -- oh, actually there's a third 13 slide that just will make this -- 14 MS. LINDA ROTHSTEIN: Okay, sure. 15 DR. MICHAEL POLLANEN: -- precise. 16 MS. LINDA ROTHSTEIN: The third slide, 17 please. 18 DR. MICHAEL POLLANEN: So what I have done 19 here is I have overlaid four (4) anal photographs from the 20 McMannon paper in a scaled manner and compared to Valin's 21 anus and you can see that the -- the dilatation is all 22 within the same range. 23 MS. LINDA ROTHSTEIN: Valin's is the one 24 (1) photo in the middle, right? 25 DR. MICHAEL POLLANEN: Yes.
1571 MS. LINDA ROTHSTEIN: Okay. 2 COMMISSIONER STEPHEN GOUDGE: Before you 3 move to the histology, Dr. Pollanen, can you recall with 4 any precision the certainty with which Dr. Mannan 5 (phonetic) and Dr. Smith looked at this gross evidence and 6 drew conclusions of, using my word, possible abuse, was 7 it? 8 DR. MICHAEL POLLANEN: I can quote from 9 their report, which is quoted on page 10 of my report, and 10 I've excerpted the following, which is the latter portion: 11 "In the absence of a history of severe 12 constipation, these findings would be 13 suggestive of anal penetration, likely 14 forced by a round blunt object." 15 COMMISSIONER STEPHEN GOUDGE: What does 16 "suggestive" mean to you? 17 DR. MICHAEL POLLANEN: Suggestive would im 18 -- would imply that there is good evidence to support that 19 position, but it's less than definitive. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: And while we're on 23 page 10, Dr. Pollanen, can we go down to the next box 24 referring again to the evidence of Dr. Smith at trial, and 25 I quote:
1581 "The position in which the child was 2 found is suggestive of sodomy." 3 You -- you do explain that even more macro 4 approach, I -- I suppose, to the issues in this case at 5 other paragraphs in your report. 6 Can you assist the Commissioner as to 7 whether or not you, as a forensic pathologist, would put 8 any reliance on the position that young Valin was found 9 in? 10 DR. MICHAEL POLLANEN: Well, in fact, I 11 would say that the position Valin was found in was not the 12 knee-chest position, so, I think there are two (2) issues. 13 MS. LINDA ROTHSTEIN: Okay. 14 DR. MICHAEL POLLANEN: The first is that 15 the distribution of post-mortem changes do not support 16 that she was in that position in the first place; and 17 second, in my view, no safe inference flows from the 18 position of the body at post-mortem examination -- sorry, 19 at the scene. What would be more helpful is objective 20 evidence of injury. 21 MS. LINDA ROTHSTEIN: All right. Which 22 takes us, I think, Commissioner, unless you had some 23 further questions, to where Dr. Pollanen was next pointing 24 us which was the histological evidence. 25 COMMISSIONER STEPHEN GOUDGE: Thank you.
1591 DR. MICHAEL POLLANEN: So when you're 2 confronted with the -- with possible anogenital injuries 3 or you want to objectively demonstrate their presence or 4 absence one (1) of the procedures that we use is removal 5 of all of the organs and we then put that in a solution, 6 formaldehyde, and then cut sections for examination under 7 the microscope. 8 And the point here being that the injuries 9 or punitive injuries that one sees with naked eye 10 inspection will find either support or refutation in the 11 histology. So -- and also in the -- in the presence of 12 straightforward evidence of injury, you make a permanent 13 record histologically. 14 The other thing that the histology allows 15 you to do is enter into some type of -- within the 16 parameters of opinion about timing. 17 So, for example, you may have an anal 18 laceration, you may argue about what's caused the anal 19 laceration, but if there is straightforward evidence of 20 healing that of course is medico-legally relevant. 21 So in this case we are, in fact, fortunate 22 that Dr. Rasaiah took histological preparations of the 23 relevant areas and that forms part of the reviewable 24 record. 25
1601 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: Right. 3 DR. MICHAEL POLLANEN: What's not clear is 4 precisely how those samples were taken and that does 5 create some difficulties for us. 6 MS. LINDA ROTHSTEIN: In what way? 7 DR. MICHAEL POLLANEN: Well, the standard 8 method would be to remove the entire organ block in one 9 (1) piece and then submerge it in formalin and then cut 10 the sections later. 11 And then once all the tissue is hardened, 12 it's not falling under the cutting of the knife, it's much 13 easier to sample the tissues for histology. And it's 14 unclear if that procedure was -- was performed in this 15 case. 16 MS. LINDA ROTHSTEIN: Okay. But given the 17 histological samples that you had, you make the 18 observation -- and I'm now at page 7, thanks -- of your 19 report, Dr. Pollanen, under the heading "Histological 20 Evidence" -- could you blow up that paragraph for us, 21 please, Mr. Riley. 22 "The observations of ulceration, 23 laceration and hemorrhage made by other 24 pathologists are in my view attributable 25 to autolysis or artefacts related to
1611 dissection --" 2 COMMISSIONER STEPHEN GOUDGE: The one (1) 3 right under -- he just asked me -- 4 MS. LINDA ROTHSTEIN: That one. Thank 5 you. 6 COMMISSIONER STEPHEN GOUDGE: -- the one 7 (1) right under the hist -- yes. 8 MS. LINDA ROTHSTEIN: That one (1). 9 COMMISSIONER STEPHEN GOUDGE: Exactly. 10 11 CONTINUED BY MS. LINDA ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: Perfect. 13 "...related to dissection or tissue 14 preparation from microscopy." 15 Help us with that, Dr. Pollanen. 16 DR. MICHAEL POLLANEN: Well, this goes 17 right back to December the 7th when -- when I first 18 received the slides. And when -- when I put the slides 19 under the microscope, it was -- it was clear that none of 20 these observations were present and that -- that 21 represents the fundamental histological disconnection in 22 this case. 23 So, essentially, when you look at tissues 24 under the microscope there is a range of normal and the 25 range of normal is determined by your knowledge of the
1621 anatomy and histology of the area, but also, is related to 2 your knowledge of the various changes that will occur in 3 the tissue after death and the changes that occur in the 4 tissue as a result of its preparation for examination 5 under the microscope. Now, do we call -- the -- the 6 changes attributable to post-mortem effects are called 7 autolysis. "Auto" means "self"; "lysis" means 8 "breakdown." 9 So this is the process of the body breaking 10 itself down after death, and we can see evidence of that 11 under the microscope. 12 Artifacts are those things that, in the 13 context that I'm -- of usage here, are changes that have 14 been produced by human intervention to prepare the tissues 15 for microscopy. 16 Now, it's important to realize that I'm not 17 saying "incompetent human intervention". Those are simply 18 the -- the things that happen during the preparation of 19 the tissues for microscopic examination, because the 20 tissues have to go through different chemical steps, et 21 cetera, in -- in order for them to be cut and put onto a 22 glass slide. 23 So, what you have here, then, is you have 24 tissues from the vagina, the anus and related areas, that 25 have undergone post-mortem changes, and have changes
1631 related to their preparation for examination. And, in my 2 view, the other pathologists in -- in this table here, Dr. 3 Rasaiah and Dr. Ferris, have just simply misinterpreted 4 the -- the findings under the microscope. 5 MS. LINDA ROTHSTEIN: And is that 6 misinterpretation another of what you would describe as 7 the pitfalls of forensic pathology? 8 DR. MICHAEL POLLANEN: I would say yes. 9 That -- 10 MS. LINDA ROTHSTEIN: And how -- sorry. 11 DR. MICHAEL POLLANEN: That autolysis, 12 post-mortem changes, and other artifacts represent one (1) 13 of the major sources of pitfalls in forensic pathology. 14 MS. LINDA ROTHSTEIN: And again, given 15 that this case begins at least in 1994, was that a pitfall 16 that was well known in your profession at that time? 17 DR. MICHAEL POLLANEN: Yes. 18 MS. LINDA ROTHSTEIN: All right. If we 19 turn specifically to focus on the conclusions reached by 20 Dr. Smith on this issue -- and, Registrar, could you turn 21 to page 11 of that document; same, please, Dr. Pollanen 22 and could you please blow up the second -- no, the one 23 above. If you could -- no, whoops. We're going to get 24 good at this. If you could just back, please, Mr. Riley. 25 Yeah, and just blow up the first third of that second
1641 column. Yes, exactly. 2 We have there the comment that you've 3 recorded from Dr. -- Dr. Smith being: 4 "There was a laceration or a fissure or 5 a defect that extended into the 6 underlying tissues." 7 And when you looked at the slides on 8 December the 7th, did you see any such thing, Dr. 9 Pollanen? 10 DR. MICHAEL POLLANEN: I saw an artifact. 11 MS. LINDA ROTHSTEIN: But not a 12 laceration? 13 DR. MICHAEL POLLANEN: Correct. 14 MS. LINDA ROTHSTEIN: All right. And so, 15 indeed, I see that you've recorded on page 11 that the 16 microscopic laceration, in quotes, is a "histologic 17 artifact"? 18 DR. MICHAEL POLLANEN: Yes. 19 MS. LINDA ROTHSTEIN: All right. And can 20 you give us a sense, Dr. Pollanen -- how easy is it to 21 make that misinterpretation; to misinterpret an actual 22 acute injury such as a laceration, from a histologic 23 artifact? 24 DR. MICHAEL POLLANEN: Not very easy. 25 MS. LINDA ROTHSTEIN: Now, you also go on
1651 in talking about the histological evidence, Dr. Pollanen, 2 to focus a little bit on the bruising that you were able 3 to look at specifically under the microscope. 4 And can you assist the Commissioner with 5 that? 6 DR. MICHAEL POLLANEN: You'll have to 7 refer me to... 8 MS. LINDA ROTHSTEIN: Sorry. I'm looking 9 now at the last part of paragraph 12. Oh, no, sorry. 10 That's all about the laceration. Okay. I'm with you. 11 So, Dr. Pollanen, where does that take us 12 in answering the first of the three (3) questions that you 13 asked: Is there evidence of acute penetrating anal 14 trauma? 15 DR. MICHAEL POLLANEN: So, the first 16 question: Is there evidence of acute penetrating anal 17 trauma? The answer is no. 18 MS. LINDA ROTHSTEIN: Dealing then with 19 the second question: Is the cause of death mechanical 20 asphyxia? Can you assist us with the analytical 21 framework you used to address that question? 22 DR. MICHAEL POLLANEN: Yes. So this 23 essentially is another version is -- of the question: 24 What is the cause of death? And the -- the reason I 25 framed it as "Is the cause of death mechanical asphyxia?"
1661 is that the -- the majority of the expert opinion at trial 2 was that, in some form or another, the cause of death was 3 related to mechanical asphyxiation. 4 And their -- in attempts -- in -- in my 5 attempt to reconstruct the relevant issues there, I make 6 specific reference to post-mortem change called 7 "lividity", and I make a discussion of another phenomenon 8 called "petechial haemorrhages". 9 MS. LINDA ROTHSTEIN: Right. Let's start 10 with lividity, if we can, at page 14 of your report. Page 11 15 of that document, please, Mr. Registrar. That's great. 12 And if you can blow up the bottom half of that page, that 13 would be helpful for us to read it. 14 So help us with the significance of 15 lividity in understanding and making appropriate 16 conclusions about the cause of death. 17 DR. MICHAEL POLLANEN: Lividity, also 18 known as "post-mortem hypostasis", is the gravitational 19 pooling of blood in the body after death. We most 20 frequently see this when people are found, for example, 21 dead in bed. Their blood will pool onto their back, and 22 you'll have a sort of a diffuse purple discolouration of 23 the back. 24 Obviously, this purple discolouration will 25 not occur over pressure points, because the blood cannot
1671 gain access into the skin if it's -- if you're up against 2 a pressure point. 3 So, if you die, for example, on your back, 4 the pressure points are your shoulder blades and your -- 5 and your buttock. Those will be pale, but the skin around 6 that will be purple. 7 So that is a -- is a phenomenon and a well- 8 known post-mortem phenomenon that happens essentially in 9 everyone after death. 10 COMMISSIONER STEPHEN GOUDGE: Over what 11 period of time? 12 DR. MICHAEL POLLANEN: That's a little bit 13 more difficult to answer. Again, how post-mortem changes 14 progress over time is one (1) of the big problems in 15 forensic medicine. But I've seen, for example, livor 16 mortis beginning very quickly after death. 17 But it usually does not become prominent -- 18 a prominent feature -- for many, many hours. 19 COMMISSIONER STEPHEN GOUDGE: Half a 20 dozen? 21 DR. MICHAEL POLLANEN: Or longer. So, the 22 -- the interesting thing about post-mortem hypostasis is 23 that it is another great source of pitfalls in forensic 24 pathology. And one (1) of the pitfalls is related to, 25 what I'm going to summarize in -- in very telegraph form,
1681 as the formation of pseudo bruises. 2 And essentially what that means is that the 3 blood vessels that are in areas of -- of extensive post- 4 mortem hypostasis can become so engorged with blood that 5 those blood vessels ruptures. 6 And, in fact, what -- what this rupture 7 causes is something akin to a bruise. The bruises can 8 range in size from very, very tiny pinpoint areas of 9 bleeding called "petechial haemorrhages" to slightly 10 larger -- arbitrarily larger -- spots in the skin called 11 "Tardieu spots" after the great French pathologist, 12 Tardieu. 13 And even still, and of great concern to 14 forensic pathologists, these haemorrhages or this -- these 15 points of bleeding may, in fact, be even larger and 16 simulate bruising. 17 One (1) of the most important aspects of 18 the pitfall that results from hypostat -- hypostasis, and 19 the formation of these pseudo bruises, or hypostatic 20 haemorrhages, is that the pseudo bruise will always be in 21 areas of lividity. And this is the key. This is the key. 22 Now, to make matters complicated, when all 23 of this process happens on the back of somebody who has 24 died of a heart attack, it presents no diagnostic 25 challenges. However, if you're found on your front, and
1691 all of these processes converge in your neck. That's a 2 major pitfall in forensic pathology, because essentially 3 you may mimic the injuries that one sees in neck 4 compression. 5 The -- the major example of that being 6 manual strangulation. So if we now go to the next slide - 7 - here it is -- fascinating. This is -- these are, 8 obviously, two (2) photographs; right and left. On the 9 left side, you see Valin as she lay on the autopsy table 10 at the time of Dr. Rasaiah's post-mortem. 11 And I've shown you, on the right side, a 12 man who died of a drug overdose as a comparative control. 13 MS. LINDA ROTHSTEIN: Mm-hm. 14 DR. MICHAEL POLLANEN: And if we start 15 with the man, you will see that there is this broad area 16 of purple discolouration on the front of the body, as well 17 as, if you look carefully, some small spots in the purple 18 area. 19 And those are -- that -- what you see there 20 is very will developed post-mortem hypostasis, and Tardieu 21 spots. If you compare Valin; it's easy to see you have 22 the exact same process. And, in fact, the pitfall in -- 23 in the case of Valin is that the Tardieu spots -- this -- 24 this process of hypostatic haemorrhage is tending up 25 towards the neck.
1701 MS. LINDA ROTHSTEIN: Mm-hm. 2 DR. MICHAEL POLLANEN: And you can see, 3 for example, in the front of the chest -- in the upper 4 front of the chest, you see the -- the Tardieu spots are 5 almost coming together to form a large area of pseudo 6 bruising. And this is what Dr. Rasaiah has misinterpreted 7 as bruising in his post-mortem report. 8 Now, because the -- because Valin was found 9 on her front, and because this process is occurring on the 10 front of her body, what we have then is the perfect 11 circumstance to create a mimic of pressure on the neck. 12 And, if you go to the next photograph; this 13 is again, Valin in the lower right, and a control -- this 14 is an adult man who's died of a heart attack. And you can 15 see that this man is also found on his front, and you can 16 see exactly the same process. 17 Engorgement of the skin by post-mortem 18 hypostasis, and the Tardieu spots relatively small in the 19 control, but in -- in the case of Valin, you can see that 20 although there are these smaller Tardieu spots and 21 petechial haemorrhages, up towards the jaw line you do 22 actually see a fairly discreet pseudo bruise. 23 Again, all of this occurring in areas of 24 hypostasis. And this is really the -- the pitfall that we 25 see.
1711 The next photograph shows the internal 2 examination. And I'll orient you for the upper 3 photograph, and that is that in the centre of the upper 4 photograph we have the chin and the dissector is holding 5 up a flap of neck tissue. 6 So what's happened here is that the skin 7 has been essentially peeled off the front of the neck, and 8 you can see three (3) relatively round areas of 9 discolouration in the flap. 10 MS. LINDA ROTHSTEIN: Mm-hm. 11 DR. MICHAEL POLLANEN: And these are what 12 Dr. Rasaiah and others took to represent bruises from 13 pressure applied to the neck. But, in fact, all we're 14 seeing is the undersurface of the hypostatic hemorrhages 15 that we saw on the surface of the skin. 16 And the lower photograph shows the same 17 phenomenon, but around the voice box. There -- there's a 18 -- there's a larger discussion that we can have about the 19 hemorrhages found in that location, which may not be 20 necessary, but these hemorrhages have been named in the 21 '50s Prinsloo Gordon hemorrhages. 22 COMMISSIONER STEPHEN GOUDGE: If these 23 were bruises, would you see something different than what 24 we see on the slide? 25 DR. MICHAEL POLLANEN: Very interesting
1721 question, and the answer is: That is my area of research. 2 In other words, we don't know right now how to -- if you 3 give a pathologist a slide of one (1) of these pseudo 4 bruises and say, Is that a bruise or a pseudo bruise, it's 5 not possible right now, in the state of the art of 6 forensic pathology, to tell them apart. 7 COMMISSIONER STEPHEN GOUDGE: So you would 8 differ from Dr. Rasaiah because you would say, We can't 9 tell whether it's bruising or not. 10 DR. MICHAEL POLLANEN: On the basis of the 11 histologic examination, -- 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 DR. MICHAEL POLLANEN: -- correct. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Dr. Pollanen, does 17 that take us to heading number B under "What is the cause 18 of death?" of your report? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. LINDA ROTHSTEIN: If we could turn to 21 page 15, please, Registrar. And you can explain for the 22 Commissioner the importance of considering the petechial 23 hemorrhages and asphyxia and the challenges that presented 24 to the appropriate determination of cause of death in this 25 case.
1731 DR. MICHAEL POLLANEN: Well -- 2 MS. LINDA ROTHSTEIN: No, sorry. Sorry, 3 Mr. Registrar, we're still on 059642, and we're at page 4 16, please. Have you got it at -- in your -- 5 COMMISSIONER STEPHEN GOUDGE: Yes, we're 6 at 15. 7 MS. LINDA ROTHSTEIN: Yeah, we're at 15 of 8 -- of Tab 44. 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 DR. MICHAEL POLLANEN: So the -- the issue 11 now is that in addition to the pseudo bruises and the 12 artifact in the neck from hypostasis -- I'll have to 13 digress very briefly and tell you about petechial 14 hemorrhages. And that is, we recognize -- and this is a - 15 - this is basic forensic pathology -- that when you do 16 have pressure on the neck in the course of, for example, 17 manual strangulation, you may get petechial hemorrhages 18 forming in life as part of the -- of the process. And 19 they are extremely important observations in -- in the 20 correct circumstance. 21 The problem is, the petechial hemorrhages 22 can occur through the -- precisely the same mechanism that 23 I've described for the neck hemorrhages. And because 24 Valin was on her front, the exact same processes that were 25 going on her neck were also going on in her face and,
1741 therefore, creating petechial hemorrhages. 2 So, if you look at the cardinal signs -- 3 autopsy signs -- of strangulation, one (1) of them is 4 bruising in the neck, the other one (1) is petechial 5 haemorrhages of the face and the eyes. You actually do 6 have both in this case, -- 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Right. 10 DR. MICHAEL POLLANEN: -- but they're not 11 produced by violence; they're produced by post-mortem 12 change. So, again, the petechial -- 13 COMMISSIONER STEPHEN GOUDGE: Well, can 14 you say that or do you just don't know which it is? 15 DR. MICHAEL POLLANEN: Well, the weight of 16 all the pathological evidence would support they're as a 17 result of post-mortem changes. There are other 18 considerations about asphyxia. 19 COMMISSIONER STEPHEN GOUDGE: Apart from 20 histology. 21 DR. MICHAEL POLLANEN: Correct, yes. 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 DR. MICHAEL POLLANEN: When you look at 24 all of the -- the findings together -- 25 COMMISSIONER STEPHEN GOUDGE: Okay.
1751 DR. MICHAEL POLLANEN: -- the scene -- 2 COMMISSIONER STEPHEN GOUDGE: But just 3 looking at the histology, you wouldn't be able to tell. 4 DR. MICHAEL POLLANEN: Not possible, 5 correct. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 DR. MICHAEL POLLANEN: So -- so in other 8 words, the -- the significance of the petechial 9 hemorrhages, which is other -- otherwise would be a very 10 important medical/legal point, in this case becomes le -- 11 they become less significant for the same reasons as the 12 neck. 13 And I've -- I've quoted from Knight's 14 Forensic Pathology where -- and actually from Lester 15 Adelson, Pathology of Homicide, where these issues are 16 canvassed; not -- not quite in the same detail as I have 17 ge -- through a mechanistic explanation of hypostatic 18 hemorrhage, but the concept that petechiai are not a fool- 19 proof indicator of asphyxia. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Right. I take it, 23 Dr. Pollanen, back in January of 2005, when you were 24 working through these issues, you then thought it 25 appropriate, given that you were essentially at the point
1761 of a negative autopsy of considering mechanical asphyxia 2 as the cause of death? 3 DR. MICHAEL POLLANEN: Yes. 4 MS. LINDA ROTHSTEIN: Can you walk us 5 through the reasoning process which you applied in order 6 to answer that question. 7 DR. MICHAEL POLLANEN: So, at -- at this 8 point in time, if you're looking at the evidence, you have 9 no positive findings to support a pathologic diagnosis of 10 any type of homicidal asphyxiation that would involve 11 injury. 12 We do recognize that there are certain 13 forms of asphyxiation that can be affected in -- and leave 14 essentially no marks at autopsy. And those are usually 15 related to external compression of the nose and mouth. So 16 upper airway obstruction. 17 And that is sort of in the general rubric 18 of mechanical asphyxia. You know, the -- it would also 19 include manual strangulation, ligature strangulation, but 20 would also include things like smothering, suffocation, 21 which may leave no marks at post-mortem. 22 MS. LINDA ROTHSTEIN: Right. 23 DR. MICHAEL POLLANEN: So, if from a -- 24 from an autopsy point of view, from a consideration purely 25 of the pathological evidence, every negative autopsy has
1771 in its differential diagnosis, smothering and suffocation 2 -- essentially. So for that -- for the reason that it 3 cannot be negated, it's on the differential diagnosis. 4 COMMISSIONER STEPHEN GOUDGE: Meaning by 5 that it is a possibility, but one for which you can supply 6 no pathology? 7 DR. MICHAEL POLLANEN: Correct. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: It can only be based 11 on circumstantial evidence, if I understand the point 12 you're making, Dr. Pollanen? 13 DR. MICHAEL POLLANEN: Yes. For the 14 pathologist, the cause of death is unascertained, but if 15 the pathologist were to make a list of possibilities, it 16 would need to be on the list. 17 MS. LINDA ROTHSTEIN: Right. And do you 18 think it's appropriate for a pathologist to consider the 19 circumstantial evidence that might, in some people's view, 20 be worthy of consideration, whether it's situational 21 factors, background information? 22 Is that the role of the pathologist? 23 DR. MICHAEL POLLANEN: Well, this is the - 24 - this is the very interesting point, because the 25 pathologist must exercise restraint in the appropriate
1781 circumstance. And this was actually summarized in a -- in 2 a paper that I wrote a little while back called "Deciding 3 the Cause of Death After Autopsy Revisited" in response to 4 a paper written by Professor Cordner in -- in the first 5 instance. 6 And this is one of the problematic areas in 7 forensic pathology, and will always be problematic. And 8 the issue is on the one hand, forensic pathology is an 9 integrative specialty and the -- simply recognizing the 10 five (5) steps of the medical/legal autopsy proves that to 11 be the case. 12 In other words, the pathologist has a role 13 in integrating different sources of information in coming 14 to an answer. 15 But the pathologist must exercise 16 restraint, discretion or filter the information that they 17 get and, therefore, not use, for example, highly suspect, 18 potentially inadmissible or speculative aspects of 19 circumstantial evidence to inform their diagnosis. And 20 the reason for that is essentially you are stepping 21 outside of your role as a forensic pathologist. 22 To make it very simple, if you are using 23 straightforward common sense interpretations of 24 circumstantial evidence that does -- does not require 25 expert knowledge in forensic pathology, you are no better
1791 equipped to make those deductions than anyone else. 2 MS. LINDA ROTHSTEIN: Mm-hm. 3 DR. MICHAEL POLLANEN: So this is the -- 4 this is the area that we navigate. And the -- the major 5 pitfall area comes with confession evidence where the 6 forensic pathologist must resist using confession evidence 7 to support a diagnosis. And in that circumstance, we may 8 have, for example, a child with a negative autopsy, who's 9 three (3) months of age, who is certified as SIDS, natural 10 -- the cause of death, SIDS, the manner of death, natural. 11 And then at some later point in time, another child dies 12 in the family or there is a confession that the child was 13 smothered and the pathologist is -- is then on notice. 14 To what extent is it reasonable for a 15 pathologist to then factor in that additional information 16 at arriving at a cause of death? And most forensic 17 pathologists would resist that, and would not be swayed 18 into the overuse of circumstantial information of that 19 type. 20 I haven't done the topic justice. There's 21 a lot more to say about it, but I suspect that will come 22 out. 23 MS. LINDA ROTHSTEIN: And I take it that 24 you're at least hinting that there's a minority opinion in 25 your profession that would disagree with you.
1801 DR. MICHAEL POLLANEN: Oh, yes, for 2 certain. 3 MS. LINDA ROTHSTEIN: But dealing with 4 Valin's case, I take it that in conclusion, based on the 5 evidence that was available to you -- and I kind of 6 breezed over -- you'll forgive me, Dr. Pollanen -- your 7 consideration of the possible sudden natural causes of 8 death that you worked into your analysis -- you ended up 9 concluding that the cause of death had to be 10 unascertained, meaning that both natural and unnatural 11 causes of death were objectively possible. 12 DR. MICHAEL POLLANEN: Correct. 13 MS. LINDA ROTHSTEIN: Now, you had 14 something to say, as well, about the time of death, and 15 that's obviously, Dr. Pollanen, because there was so much 16 evidence and disputed evidence about that at Mr. William 17 Mullins-Johnson's trial. But I take it, having concluded 18 that this was an unascertained cause of death to some 19 extent, from your perspective, anyway, that issue is 20 beside the point. 21 Is that fair? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. LINDA ROTHSTEIN: But -- 24 COMMISSIONER STEPHEN GOUDGE: What do you 25 mean "beside the point". You couldn't say anything about
1811 it? 2 DR. MICHAEL POLLANEN: Well, I certainly 3 have given an analysis of it, but not in as great detail 4 as I have on the other issues. 5 COMMISSIONER STEPHEN GOUDGE: You're 6 hampered because you can't determine a cause of death -- 7 in determining the time of death, is that what you're 8 saying? 9 DR. MICHAEL POLLANEN: No, the -- the 10 issue about time of death becomes less important -- 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 DR. MICHAEL POLLANEN: -- in the context 13 that when the cause of death is un-ascertained. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 MS. LINDA ROTHSTEIN: Sorry, bad leading 16 of a witness, Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: No, that's 18 okay, that's my understanding. I just wanted to make sure 19 I understood. So it wouldn't inhibit you to try to 20 determine a time of death just because you were 21 indeterminate about a cause of death -- 22 DR. MICHAEL POLLANEN: Correct. 23 COMMISSIONER STEPHEN GOUDGE: -- but it is 24 forensically less important. 25 DR. MICHAEL POLLANEN: Correct.
1821 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: And much better put, 4 Commissioner. 5 But, Dr. Pollanen, having said all of that, 6 can you assist us by, at least in summary form, reviewing 7 for the Commissioner the concerns you had about the time 8 of death opinions that had been given in this case at the 9 time that you first reviewed it? 10 DR. MICHAEL POLLANEN: The initial opinion 11 on time of death, I believe, was given at the time of 12 post-mortem examination, or at least a range of possible 13 times of death were given. And this was largely based 14 upon post-mortem change -- oddly -- on things like rigor 15 mortis, the development of livor mortis; and these really 16 are -- do not form firm basis for giving opinions on -- on 17 time of death. 18 And the reasons for this, essentially, are, 19 although forensic pathologists have searched for, we do 20 not have a post-mortem clock. We would like to find 21 changes in the body that would -- would go over a certain 22 time interval that would provide us with a post-mortem 23 clock. 24 People have tried different things like 25 qualitative examination of post-mortem changes, drop in
1831 temperature, electrical conductivity, biochemical changes. 2 The list goes on and on and on, sort of like a search for 3 Holy Grail, but there's nothing -- nothing has actually 4 come out of that research. 5 COMMISSIONER STEPHEN GOUDGE: That 6 provides consistency. 7 DR. MICHAEL POLLANEN: Correct. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: Dr. Pollanen, you 11 authored a much less lengthy supplementary report on May 12 the 24th of that same year. 13 Registrar, we're at 059632. Dr. Pollanen, 14 Mr. Commissioner, we're at Tab 59 in the second volume. 15 16 (BRIEF PAUSE) 17 18 MS. LINDA ROTHSTEIN: And just to remind 19 everyone, Dr. Pollanen, at this stage, I take it you are 20 putting pen to paper again and thinking through the issues 21 in light of the fact there are some newly found materials, 22 being ten (10) additional microscopic slides and a total 23 of twenty-eight (28) paraffin blocks, as you record at 24 page 2, Registrar, of that document? 25 DR. MICHAEL POLLANEN: Yes.
1841 MS. LINDA ROTHSTEIN: And can you tell us 2 how your opinion, with respect to this case, was developed 3 in light of that new material? 4 DR. MICHAEL POLLANEN: The new materials 5 essentially strengthen my previous view and provided more 6 histological evidence from the neck, and -- and, 7 therefore, documents the hemorrhage present in the neck 8 tissues. 9 I -- I viewed that the histological 10 preparations that were provided to me as being 11 confirmatory and extending my previous opinion. 12 MS. LINDA ROTHSTEIN: And, so, to what 13 extent was your previous opinion extended -- to use your 14 word? 15 DR. MICHAEL POLLANEN: In that I had 16 additional factual information -- 17 MS. LINDA ROTHSTEIN: Okay. 18 DR. MICHAEL POLLANEN: -- to confirm my 19 previous thinking. 20 MS. LINDA ROTHSTEIN: But there weren't 21 any new conclusions, per se, or new diagnoses that you 22 came to as a result of that new material? 23 DR. MICHAEL POLLANEN: No. 24 MS. LINDA ROTHSTEIN: Okay. So, that 25 takes us, Dr. McLellan, Dr. Pollanen, back chronologically
1851 -- at least in my mind -- to the announcement of the 2 results of the tissue audit and what we referred to, 3 Commissioner, throughout this Inquiry so far, as the 4 "Chief Coroner's Review." 5 And I think we should stop at this 6 juncture, Dr. McLellan, to explain that, again, we need to 7 be confident that we're using terminology in a way that is 8 understandable and transparent to all. 9 I understand that the Chief Coroner's 10 Review, which you announced in June of 2005, was not a 11 review of Dr. Smith's pathology cases only, but also of 12 the death investigations -- at least some elements of the 13 death investigations -- that underlay his work in those 14 cases. 15 Is that fair? 16 DR. BARRY MCLELLAN: Yeah, I think it 17 best, ultimately, to -- to refer to the November 18 announcement, when the specific materials that were -- 19 MS. LINDA ROTHSTEIN: Okay. 20 DR. BARRY MCLELLAN: -- reviewed had been 21 announced in the context of discussions taking place 22 through the Forensic Services Advisory Committee. 23 MS. LINDA ROTHSTEIN: Okay. The point I 24 wanted to make, though, is that when we talk about the 25 Chief Coroner's Review, that isn't entirely synonymous
1861 with what then, we'll see, in the documents becomes 2 described as "The Smith Review." 3 DR. BARRY MCLELLAN: Correct. 4 MS. LINDA ROTHSTEIN: Right. And the 5 point I'm trying to make, that was probably not apparent 6 to many in the room, is that the Smith Review, in the 7 minutes of the Forensic Advisory Committee, at least, 8 becomes the nomenclature that is used to describe what 9 ultimately became the consideration of forty-five (45) of 10 Dr. Smith's autopsies or consultation reports by five (5) 11 internationally renowned forensic experts. That's the 12 Smith Review. 13 DR. BARRY MCLELLAN: Correct. 14 MS. LINDA ROTHSTEIN: Okay. But the -- 15 COMMISSIONER STEPHEN GOUDGE: Are they two 16 (2) different things? 17 MS. LINDA ROTHSTEIN: Well, the Chief 18 Coroner's Review is bigger than that, Commissioner -- 19 COMMISSIONER STEPHEN GOUDGE: Okay. 20 MS. LINDA ROTHSTEIN: -- just so you have 21 that. And I don't think that that would have been 22 apparent to you, but hopefully will be as we walk through 23 the documentation. 24 The Smith Review contemplates that there 25 was also a paper review of the death investigations that -
1871 - in which those forty-five (45) cases of Dr. Smith's took 2 place -- 3:10, and we can tell. 3 Okay. There was also some paper review of 4 the death investigations that went on. And both of those 5 two (2) things together, at least in Dr. McLellan's world, 6 are contemplated by the language "Chief Coroner's Review." 7 Have I got that right, Dr. McLellan? 8 DR. BARRY MCLELLAN: Correct. 9 MS. LINDA ROTHSTEIN: Okay. So, as I 10 understand it, it was on July the 5th of 2005 that the 11 Forensic Services Advisory Committee first met. And if I 12 could ask everyone to pull up Tab 64, and that's 034168. 13 And I want to stop for a moment, Dr. McLellan, and get you 14 to just assist the Commissioner with the origins of the 15 Forensic Services Advisory Committee, and it's 16 composition? 17 DR. BARRY MCLELLAN: Yes, what would 18 probably be of greatest value, would be if you could draw 19 my attention to the Tab where we have the terms of 20 reference. 21 MS. LINDA ROTHSTEIN: Okay. Or we can go 22 right to the OCCO institutional report, and I can help you 23 with that -- Tab 18. There we go, so it's -- before we go 24 to that minute please, Registrar, can we go back to 25 134282.
1881 There we go. Dr. McLellan, does that 2 assist you in answering my question? 3 DR. BARRY MCLELLAN: Yes, it does. And I 4 -- I thought earlier you may have indicated in your 5 question that the meeting of July 5, 2005 was the first 6 meeting of the Committee. It was the first meeting of the 7 Committee after the announcement of the review. 8 MS. LINDA ROTHSTEIN: That's what I meant, 9 but didn't say. Thank you for that. 10 DR. BARRY MCLELLAN: So the -- the 11 Forensic Services Advisory Committee was formed to provide 12 independent and external advice to the Chief Coroner. The 13 creation of this Committee is such that over a period of 14 many months, I became aware, prior to becoming Chief 15 Coroner, that concerns had been expressed by a number of 16 individuals, many from the Defence Bar, about an apparent 17 perception that the Office was not completely objective in 18 some of its decision making. 19 Now, in 1998 the Centre of Forensic 20 Sciences had created an Advisory Committee and, based on 21 input from a number of different individuals in and around 22 this time. And discussions I had with Dr. Young, who was 23 the Chief Coroner, we agreed that it would be advisable to 24 form this Committee, a multi-disciplinary committee, with 25 the common interest of advancing the quality and
1891 independence of all components of the post-mortem 2 examinations conducted on coroner's cases. 3 The membership included the Chief Coroner, 4 the -- 5 MS. LINDA ROTHSTEIN: Page 2 please, 6 Registrar. 7 COMMISSIONER STEPHEN GOUDGE: What time 8 frame are we talking about here, Dr. McLellan, roughly? I 9 mean, when would this genesis... 10 DR. BARRY MCLELLAN: It would likely have 11 been in early 2004. If I had the first set of minutes I 12 could get that for you specifically -- 13 COMMISSIONER STEPHEN GOUDGE: Just 14 roughly. 15 DR. BARRY MCLELLAN: -- Commissioner. 16 Roughly then. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 DR. BARRY MCLELLAN: So the -- the 19 membership is outlined on page 2. You'll appreciate it is 20 a multi-disciplinary Committee with the Chief Coroner, 21 Chief Counsel to the Office of the Chief Coroner, two (2) 22 Forensic Pathologists -- one (1) of whom is Dr. Pollanen, 23 the Director of the Centre Forensic Sciences, two (2) 24 representatives of the Defence Bar, Director, Criminal Law 25 Policy Branch or delegate, and two (2) or three (3)
1901 members of police services in Ontario. 2 Now, the first Committee also included Dr. 3 Young in his joint capacity as Chief Coroner and also, at 4 that time, I believe, Assistant Deputy Minister or 5 Commissioner. Dr. Young chaired the first Committee. 6 Subsequently, I became Chief Coroner and chaired the 7 remaining meetings until I left in September of this year. 8 MS. LINDA ROTHSTEIN: Okay. So, Mr. 9 Commissioner, I think that's a good time for us to break. 10 When we come back, we can look at the July composition; 11 that's the July '05 composition, and work through the 12 process by which that Committee helped to design the Smith 13 Review. 14 COMMISSIONER STEPHEN GOUDGE: Thank you; 15 3:30. 16 17 --- Upon recessing at 3:16 p.m. 18 --- Upon resuming at 3:45 p.m. 19 20 THE REGISTRAR: All rise. Please be 21 seated. 22 COMMISSIONER STEPHEN GOUDGE: Ms. 23 Rothstein...? 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
1911 MS. LINDA ROTHSTEIN: Mr. McLellan, I want 2 to ask some questions about the reasons for the 3 establishment of the Forensic Services Advisory Committee. 4 And just before we move forward in time, Dr. McLellan, to 5 what that committee was doing in July of 2005, I did want 6 to take you back to one (1) of the documents in book of 7 documents, which you'll find at Tab M. And it's on your 8 screen, Commissioner. It's 140237. 9 This is an email exchange between the 10 OCCO's Chief Counsel, Mr. O'Marra and Mr. Murray Segal, 11 and at the Ministry of the Attorney General. 12 And in it Mr. O'Marra is quoted, among 13 other things, as saying: 14 "You may recall, I mentioned to you at 15 the Fall Regional Crown Attorney's 16 meeting in Toronto that several members 17 of the Defence Bar have expressed an 18 interest in developing some mechanism to 19 convey concerns that they may have about 20 forensic pathology. As you will 21 appreciate, it has arisen in the context 22 of the several controversies that have 23 involved Dr. Charles Smith. 24 Dr. Young, Dr. Barry McLellan, Deputy 25 Chief Coroner for Forensic Services have
1921 expressed a willingness to discuss 2 whether there is a need for such a 3 mechanism, perhaps in the form of an 4 advisory committee." 5 So stopping there for the moment, Dr. 6 McLellan, you've told us in general terms about the 7 reasons for the creation of that committee. 8 In your view, speaking only for yourself, 9 how much, if anything, did it have to do with the 10 controversies that at that stage were surrounding Dr. 11 Smith? 12 DR. BARRY MCLELLAN: Clearly, at that time 13 there were ongoing controversies surrounding Dr. Smith and 14 -- and his work. From my perspective, I was more 15 concerned about some of the more general concerns that 16 were directed towards myself. 17 I had had conversations with Cindy Wasser. 18 I had been interviewed by John Rosen and Dell Doucette 19 prior to my testimony at Kporwodu and Veno. And they had 20 raised concerns, which were general at that time, about 21 access -- 22 MS. LINDA ROTHSTEIN: Just stop for one 23 moment, because the air traffic noise is quite loud. I'm 24 not hearing you. 25
1931 (BRIEF PAUSE) 2 3 MS. LINDA ROTHSTEIN: Thank you. 4 DR. BARRY MCLELLAN: I was starting to 5 talk about my interview, which included John Rosen and 6 Dell Doucette prior to my testimony at Kporwodu and Veno. 7 And concerns were expressed during that interview that the 8 Defence Bar did not have access to forensic pathologists 9 and other experts, that frequently they had difficulty 10 speaking to them in advance of a case going to court. 11 That -- that concerned me. 12 The general observations that I'd heard 13 about a perception that the Office was not seen to be 14 independent in some of its processes and decision making, 15 that was my concern. 16 MS. LINDA ROTHSTEIN: Meaning it was too 17 linked to the Crown? 18 DR. BARRY MCLELLAN: That was the -- that 19 was the perception -- 20 MS. LINDA ROTHSTEIN: Okay. 21 DR. BARRY MCLELLAN: -- that was directed 22 to me. And my concerns were around matters like that. 23 Now, yes, there were concerns about Dr. Smith in the 24 background. But I've taken a look, at the break, at 25 minutes from the first two (2) meetings. And the first
1941 meeting was, Commissioner, in February of 2004. 2 COMMISSIONER STEPHEN GOUDGE: Thank you. 3 DR. BARRY MCLELLAN: And the agenda items 4 at that time dealt with some of those general issues, as 5 an example, education of forensic pathologists. It was 6 through this committee that a course was developed 7 specifically around expert opinion and expert testimony as 8 it related to forensic pathologists. 9 There was a discussion about the need for a 10 standardized electronic record for autopsy reports. Those 11 were the items that were being discussed. 12 And I don't recall specific concerns around 13 Dr. Smith being discussed at those first two (2) meetings. 14 I haven't gone through the minutes in great detail, but I 15 don't recall it, and I was the one who was doing the 16 minutes at the time. 17 COMMISSIONER STEPHEN GOUDGE: Was your 18 sense, Dr. McLellan, that the Defence Bar was concerned 19 they could not access pathology advice of their own or 20 that they couldn't get access to the pathologists who had 21 done the autopsies? 22 DR. BARRY MCLELLAN: It -- it was both, 23 Commissioner. And you'll see, perhaps, if we go through 24 some of the other minutes, that one (1) of the items that 25 came forward was whether we could assist with providing a
1951 list of forensic pathologists who would be willing to 2 provide opinions in future to the Defence Bar. And that 3 list was created through the committee. 4 So, it was really both items that had been 5 brought to my attention. 6 7 CONTINUED BY MS. LINDA ROTHSTEIN: 8 MS. LINDA ROTHSTEIN: All right. That 9 moves us back, then -- or forward, actually -- to July 10 5th, 2005, to Tab 64, Mr. Registrar, to 034168. 11 And this is the first meeting of the 12 Forensic Services Advisory Committee in which any 13 consideration is given to the review of Dr. Smith's cases 14 that you had announced the month before. 15 DR. BARRY MCLELLAN: Correct. 16 MS. LINDA ROTHSTEIN: So let's just stop 17 for a moment, Dr. McLellan, and have you explain to the 18 Commissioner who the various persons on that advisory 19 committee were, who they represented, why they were there. 20 DR. BARRY MCLELLAN: So, there were two 21 (2) forensic pathologists, Dr. Chiasson and Pollanen. 22 There were two (2) representatives of the 23 Defence Bar, Mr. Manischen and Ms. Wasser. 24 Al O'Marra was there as Chief Counsel from 25 our office.
1961 Mr. Porter was there representing Criminal 2 Law Division, Crown Counsel. 3 Dr. Prime was there representing the Centre 4 of Forensic Sciences. 5 There was one (1) police representative at 6 this first meeting, Superintendent Strathdee from the 7 Toronto Police Service. There were two (2) police 8 officers who were unable to attend, Deputy Chief Beazley 9 and Depart -- and Superintendent Ross Bingley (phonetic) 10 from the Ontario Provincial Police. 11 MS. ROTHSTEIN: If we turn to the second 12 page -- second page of that document, please, Registrar, 13 the meeting appears to begin with, or largely be devoted 14 to discussing the scope of and process for the review. 15 And, Dr. McLellan, you refer to the pre-circulated 16 backgrounder document that had been distributed. I 17 believe we can find a copy -- that's at the top, 18 Commissioner, the first two (2) sentences. 19 COMMISSIONER STEPHEN GOUDGE: Right. I am 20 just getting the Registrar to enlarge it. 21 MS. LINDA ROTHSTEIN: Yeah. 22 COMMISSIONER STEPHEN GOUDGE: Thanks. 23 24 CONTINUED BY MS. ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: And the backgrounder
1971 document, if I'm not mistaken, Dr. McLellan, can be found 2 at Tab 62. Dr. Pollanen, you as well, please. 3 DR. BARRY MCLELLAN: The backgrounder 4 document that I was referring to in the minutes is at Tab 5 60. It's the backgrounder document arising from my 6 announcement. 7 MS. LINDA ROTHSTEIN: Right. 8 DR. BARRY MCLELLAN: There is another 9 document that contains background, and that is found at 10 Tab 62 and was discussed at the meeting. 11 MS. LINDA ROTHSTEIN: Okay. And so if we 12 could turn then, Registrar, to 116772. And this 13 background document was prepared by you, Dr. Pollanen? 14 DR. MICHAEL POLLANEN: Yes. 15 MS. LINDA ROTHSTEIN: And it was prepared 16 as a way of helping everyone to orient themselves, I take 17 it, to the task in front of them? 18 DR. MICHAEL POLLANEN: Yes. 19 MS. LINDA ROTHSTEIN: Right, so help us 20 with what you did in order to create this document, the 21 questions you asked yourself and the sort of information 22 that you were able to assemble. 23 DR. MICHAEL POLLANEN: Well, in the first 24 instance it became apparent that this was an unprecedented 25 review, that when I made initial assessments, discussed
1981 the issue with people, and reviewed the literature there 2 was very little to draw on in terms of how to proceed. 3 This is sort of summarized in Section 1, 4 where I found that most of the reviews of pathologists -- 5 pathologists' work had been in the context of greater 6 issues, where the pathology was one (1) component. 7 The -- I guess the major, sort of, 8 exceptions to that would have been the body part retention 9 scandals that occurred in various parts of the world -- 10 those issues were more of a pathological kind -- and then 11 the notable, wrongful convictions of people like Sally 12 Clark and Angela Canning, that tended to enlarge more on 13 pathological issues beyond specific cases dealing with 14 issues such as Sudden Infant Death and the enigmas of the 15 pathology. 16 MS. LINDA ROTHSTEIN: And to be clear, 17 both of those investigations dealt with forensic pathology 18 issues as opposed to more broadly defined medical issues? 19 DR. MICHAEL POLLANEN: Correct, yes. In 20 the case -- I did find one (1) -- essentially, it was a 21 public inquiry into a pathologist's work, but this was in 22 -- in relation to pap smears, where a pathologist had 23 erred in his determination of abnormal cells on pap 24 smears. 25 And this had been identified through civil
1991 litigation and resulted in a retrospective review of a 2 large number of -- of his cases through a rather rigorous 3 review process, ultimately culminating in a Commission of 4 Inquiry in New Zealand. 5 MS. LINDA ROTHSTEIN: That was the 6 Gisborne Cervical Screening Inquiry? 7 DR. MICHAEL POLLANEN: Yes. 8 MS. LINDA ROTHSTEIN: Okay. 9 DR. MICHAEL POLLANEN: And I go on -- 10 perhaps it's not necessary to describe the -- the outcome 11 of the Inquiry. 12 MS. LINDA ROTHSTEIN: Why don't you take 13 us to Part 3 of your background document -- page 4, 14 please, Registrar -- and assist the Commissioner in 15 understanding what you thought some of the specific items 16 related to the review were, what they -- what the real 17 design issues would be. 18 DR. MICHAEL POLLANEN: Well, this is 19 really a free flow of concepts that I thought we should 20 consider as a group in the Committee, to get -- get some 21 sort of consensus or feel as to what the boundary issues 22 or the parameters would be in such a review. And I used 23 the Gisborne Inquiry as some basis for that. 24 And, essentially, I thought we needed to be 25 -- need to have sufficient ethical considerations, because
2001 the -- the issues we're dealing with in the review were - 2 - had great gravity. They were in the criminal justice 3 system, they at least eclipsed elements of credibility of 4 pathologists or a pathologist. And you know, those needed 5 to be properly contextualized. 6 This -- in the early stages of this review 7 it was not entirely clear to what extent we would overlap 8 with miscarriage of justice issues. And those being more 9 legally framed, we needed to very well stay away from. It 10 was not really within our mandate to deal with issues of 11 that type. 12 So we needed to -- we needed to think very 13 carefully about how we were going to frame this review 14 process methodologically to be correct but not go outside 15 of our purview. 16 And the issues related to disclosure were 17 very important. And I thought we needed to consider what 18 our obligations would be in light of those issues. 19 And I thought that one thing that we should 20 keep in mind as a recurrent theme throughout the review 21 was that we were focussing on one (1) pathologist. And 22 there was some ethical obligation on our part to be 23 entirely fair to the pathologist during the process of our 24 review. 25 We also talked about things like civil
2011 litigation and how it -- how that might be involved, not 2 only for the pathologist involved, but also the 3 pathologist that might be reviewing the cases. 4 And I thought it was also very important to 5 let the committee, the greater committee know -- which was 6 clearly not populated only by experts, but by police 7 officers, lawyers, et cetera -- that we needed to 8 recognize that this review -- a review of this type -- 9 was not simply not redoing some laboratory tests. 10 It was not a matter of getting a new and 11 better machine to analyse, retrospectively, blood alcohol 12 concentrations. We were dealing with some extremely 13 complicated issues that were of a forensic medical nature, 14 and by virtue of that, deal with opinions. 15 And in opinion work there is really no gold 16 standard. There is no sort of ultimate test that one can 17 refer to. And on that basis we needed to be mindful that 18 we needed to come to a -- a close -- an approximation to a 19 gold standard that we could. 20 MS. LINDA ROTHSTEIN: All right. And -- 21 sorry. 22 DR. MICHAEL POLLANEN: And finally, we 23 needed to recognize that if we did find errors -- 24 mistakes, as it were -- they needed to have a mechanism to 25 deal with that.
2021 COMMISSIONER STEPHEN GOUDGE: What do you 2 mean by gold standard? 3 DR. MICHAEL POLLANEN: Well let me put it 4 to you this way. In other branches of -- of forensic 5 science, for example, there are ultimate analytical tests 6 that would -- that one can use to adjudicate a scientific 7 issue. 8 The -- the most popular one is hair. In 9 hair microscopy, where you -- where hair is retrieved from 10 a crime scene and is microscopically compared to an 11 exemplar, in the past the -- the hair may have been said, 12 based upon its visual microscopic comparison, to match the 13 -- a source. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. MICHAEL POLLANEN: And we now know 16 that there are technical limitations to hair microscopy. 17 And we know that because there's better technology, which 18 is in the case of hair, usually mitochondrial DNA 19 analysis. 20 So you can think of, in the hair analogy, 21 the mitochondrial DNA analysis representing some gold 22 standard. 23 COMMISSIONER STEPHEN GOUDGE: Certainty? 24 DR. MICHAEL POLLANEN: Certainty, correct, 25 yes. And that is not something that we can offer in
2031 pathology. We can offer methodologically valid, 2 reasonable, balanced, evidence based, but certainty in the 3 same level as a mitochondrial DNA analysis compared to 4 hair microscopy is not something we offer. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Turn to page 3 of 8 your document. Page 5 of this document please, Registrar, 9 under subparagraph H. Even at this early stage in the 10 development of the work of the Smith Review, June of 2005, 11 Dr. Pollanen, you were giving thought to the way to 12 properly populate or constitute the review panel. 13 And I note that in subparagraph 1, you 14 treat as, at least from your purposes, one of the 15 mandatory conditions being recognized as a forensic 16 pathologist, either by training, experience, or 17 qualification, or some combination. But I don't see 18 anywhere any stipulation that someone have pediatric 19 experience. 20 Tell us about that. 21 DR. MICHAEL POLLANEN: Well, that's number 22 2, in fact. 23 MS. LINDA ROTHSTEIN: Oh, did I -- did I 24 miss it? Oh, sorry, yes. Sorry, my -- my apologies. 25 Okay, so you wanted someone who both had
2041 experience doing forensic pathology and autopsies on 2 children. 3 DR. MICHAEL POLLANEN: Yes. 4 MS. LINDA ROTHSTEIN: All right. But you 5 didn't necessarily mean to find people who were actually 6 certified as pediatric pathologists. 7 DR. MICHAEL POLLANEN: Correct. 8 MS. LINDA ROTHSTEIN: Okay. Number 3, 9 then; you're looking for a group of people who are 10 sufficiently acquainted with the coroner's system of death 11 investigation. If a forensic pathologist that is 12 appointed, the review panel is also a medical examiner, 13 the differences are inherent -- that are inherent to the 14 coroner's and medical examiner system should not influence 15 the results of the review process. 16 Tell us about your concerns that someone 17 with too much experience in the medical examiner system 18 would not be appropriate for this task. 19 DR. MICHAEL POLLANEN: There are two (2) 20 major medical models for death investigation; one (1) is 21 the medical coroner system and the other is the medical 22 examiner system. 23 Medical examiner system essentially is 24 populated by forensic pathologists providing the functions 25 that in our system would be provided by forensic
2051 pathologists and coroners. So medical examiner is a 2 forensic pathologist plus coroner equivalent in our 3 system. 4 And there are major administrative and 5 procedural and even philosophical differences between the 6 coroner's death investigation system and the medical 7 examiner's approach. 8 The main difference is that the medical 9 examiner -- the -- the medical examiner tradition or 10 approach to forensic pathology is more broadly integrative 11 than the forensic pathology approach in the coroner 12 system. 13 MS. LINDA ROTHSTEIN: What does that mean; 14 "integrative"? 15 DR. MICHAEL POLLANEN: Well, it means that 16 they would -- they would more likely include some types of 17 data that we would resist incorporating into our expert 18 opinions. 19 MS. LINDA ROTHSTEIN: Such as? 20 DR. MICHAEL POLLANEN: Highly 21 circumstantial evidence, confessions; this type of 22 information. And they are -- the medical examiner is 23 ultimately responsible for determination of manner of 24 death, whereas the forensic pathologist operating the 25 coroner system classically is not.
2061 Now, while the -- that sounds like a very 2 academic discourse, it's manifested in essentially a 3 competition between those people that support a medical 4 examiner's model of death investigation and those people 5 who support a coroner's system of death investigation. 6 And there is -- there is often a tension between the two 7 (2) schools of thought; not necessarily so, but that's -- 8 that's the way it is. 9 And I am cautious -- I was very cautious in 10 -- in my approach to this issue about bringing medical 11 examiner-based forensic pathologists into our review 12 process, largely because I was -- I considered the 13 possibility that the -- if there are adverse conclusions 14 being drawn, they may, in fact, have gone outside of the 15 forensic pathology aspects of the review, and be something 16 greater. 17 In other words -- in other words, I didn't 18 want the process, by design, to become a negative 19 conclusion on the pathologist's role because they were 20 operating in a coroner system, rather than a medical 21 examiner system. 22 MS. LINDA ROTHSTEIN: And to what extent 23 does that explain why, down the line, no forensic 24 pathologists from the United States were selected for this 25 purpose?
2071 DR. MICHAEL POLLANEN: Well, that's one of 2 the significant factors largely because many of the 3 forensic pathologists practising in the United States are 4 medical -- or practice in medical examiner systems. 5 About 50 percent of the death investigation 6 systems in the United States are medical examiner systems. 7 And the coroner systems in the United States are not as 8 well developed or sophisticated as ours, as most of them 9 are lay coroner systems rather than medical coroner 10 systems. 11 Suffice it to say, I didn't want to 12 introduce an error -- a methodological error -- in the 13 review process where we would -- we would undertake a 14 review and then at the end of the review find out that 15 adverse conclusions had been drawn, but they were drawn 16 because of jurisdictional differences. 17 MS. LINDA ROTHSTEIN: May we look at 18 subparagraph 4, Dr. Pollanen. You write: 19 "Have sufficient knowledge of the 20 procedures and historical practises of 21 Ontario's coroner system and the Ontario 22 Paediatric Forensic Pathology Unit at 23 The Hospital for Sick Children." 24 How, if one (1) were to employ persons from 25 outside Ontario, was that objective going to be achieved?
2081 DR. MICHAEL POLLANEN: With great 2 difficulty. But it would be achieved in the way that I 3 thought we achieved it, and that is through education of 4 the -- of the Panel with this basic information. 5 MS. LINDA ROTHSTEIN: Okay. So we'll talk 6 about the extent to which that became an education piece, 7 and the extent to which you think you were successful in 8 providing them with the sufficient foundation for their 9 work as we go on. 10 And then you say, as sub small "v": 11 "Sufficiently respected in the Ontario 12 forensic pathology community so that the 13 results of the review have professional 14 credibility and can stand up to public 15 and legal scrutiny." 16 And I take it that's an easier thing to 17 achieve. There aren't many forensic pathologists that 18 have an international reputation. 19 Is that a -- a fair generalization? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. LINDA ROTHSTEIN: And those that you 22 were considering as a committee would have been well known 23 and well regarded, as a general matter, in the Ontario 24 forensic pathology community. 25 Is that fair?
2091 DR. MICHAEL POLLANEN: Yes. 2 MS. LINDA ROTHSTEIN: All right. All 3 right, you then say in (j) that you prepared a draft 4 autopsy review form for consideration by the Committee, 5 and it's modification of the autopsy audit form that is 6 currently used in the Toronto Forensic Unit. That's at 7 the next tab; Document 167 -- or sorry, 116766, Registrar. 8 So, again, Dr. Pollanen, are we to conclude 9 that at this very early stage in the development of the 10 design for the Smith Review, you had reached the 11 conclusion that this would be the document that would be 12 the foundation of each opinion reached by the Expert 13 Review Panel? 14 DR. MICHAEL POLLANEN: No. 15 MS. LINDA ROTHSTEIN: No? Okay. Well 16 then help us with this form and what you thought it would 17 be used for and forgive me for jumping ahead. 18 DR. MICHAEL POLLANEN: This was my 19 suggestion to the Committee. 20 MS. LINDA ROTHSTEIN: Okay. 21 DR. MICHAEL POLLANEN: All these decisions 22 are made as a committee, so I put some thought into what 23 instrument I thought would be valuable, and I thought 24 extending our audit instrument that we use in the Province 25 to this task was reasonable. But there were no
2101 conclusions made about what the instrument should be -- 2 MS. LINDA ROTHSTEIN: Right. 3 DR. MICHAEL POLLANEN: -- it was for the 4 Committee to decide. 5 MS. LINDA ROTHSTEIN: But I take it that 6 at this stage you, at least on a preliminary basis, had 7 concluded that asking for a full consultation report in 8 the form, for example, that you've just the Commissioner 9 through with respect to Valin's case, was not either 10 appropriate or practical, given the scope of the review 11 that you were about to commence. 12 DR. MICHAEL POLLANEN: Certainly, if you 13 were to contrast a very long, detailed analysis in written 14 format, such as what we've been discussing, versus more of 15 a quality assurance-type analysis, this format is 16 preferred. And this is the format, again, that we use for 17 our quality processes in the Province of Ontario. 18 Again, separating the issue of what the 19 goals are, what -- what you -- what you wish to achieve. 20 Long narrative autopsy consultations typically go into the 21 second opinion-type case; where there's a controversy, you 22 want to have a second opinion of an individual 23 pathologist. These -- this was more framed as a quality 24 assurance review and, therefore, this format seemed more - 25 - most applicable.
2111 MS. LINDA ROTHSTEIN: All right. 2 COMMISSIONER STEPHEN GOUDGE: Were you 3 attempting, Dr. Pollanen, to capture the way Dr. McLellan 4 had put it in his June announcement, which was to focus on 5 whether the conclusions reached by Dr. Smith can be 6 supported by the information and materials available? 7 DR. MICHAEL POLLANEN: Yes. Essentially 8 we wanted to capture that, and we wanted to make the 9 review process -- the form -- as objective as possible. 10 And -- and heralding back to one of the important things, 11 which is independent review ability and an evidence based 12 approach. 13 For example, we wanted there to be a 14 concordance between the injuries described in the post- 15 mortem report and those present in the photographs and in 16 the histology. 17 COMMISSIONER STEPHEN GOUDGE: Would it be 18 wrong for me to interpret the objective, as Dr. McLellan 19 enunciated it or as is implicit in your form, a 20 determination of whether Dr. Smith was right or wrong? Or 21 is that an over-simplification? 22 DR. MICHAEL POLLANEN: I -- I think it's 23 an over-simplification. Coming back to this issue -- 24 COMMISSIONER STEPHEN GOUDGE: And I'll ask 25 Dr. McLellan to respond too, because he agreed with you.
2121 DR. BARRY MCLELLAN: Yes, I agree. That's 2 an over-simplification. 3 COMMISSIONER STEPHEN GOUDGE: I may ask -- 4 can I just ask you, Dr. McLellan, what your sense of the 5 language you used in June was? What were you looking for 6 when you looked for -- was it supportable on the basis of 7 the information? 8 DR. BARRY MCLELLAN: I -- I can answer 9 that now. It may in fact be easier to see how that 10 evolved and moved towards the actually announcement in 11 November, Commissioner, where it actually was broken down 12 into three (3) questions -- 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 DR. BARRY MCLELLAN: -- which I think 15 broke the one (1) down into three (3) separate categories. 16 COMMISSIONER STEPHEN GOUDGE: Okay. Well 17 let's leave it until we get there. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Okay, so we're now 21 back to the minutes of the Special Committee of the 22 Forensic Services Advisory Committee for July 5, 2005, 23 034168. That's Tab 64. Page 2 of that minute records a 24 fulsome discussion as to whether or not the current review 25 should also include an analysis of transcripts arising
2131 from Dr. Smith's testimony at the preliminary hearings or 2 trials. 3 And I know, from reading the documentation, 4 that that discussion continued for some time. So, without 5 in any way suggesting that it was resolved at this early 6 stage, Dr. Pollanen, can you at least outline for the 7 Commissioner what the -- the both pros and cons of that 8 approach as they were expressed at that meeting were? 9 DR. MICHAEL POLLANEN: At the meeting, I 10 don't specifically remember the precise range of 11 discussion, but I do have a recollection of the issue -- 12 MS. LINDA ROTHSTEIN: Okay. 13 DR. MICHAEL POLLANEN: -- more generally-- 14 MS. LINDA ROTHSTEIN: Fair enough. 15 DR. MICHAEL POLLANEN: -- including the 16 emails that were exchanged afterwards and the other 17 discussions. Essentially it -- it came down to whether we 18 could capture what we wanted to measure or assess simply 19 by looking at the autopsy documentation. 20 Recognizing that one of the critical 21 functions of the forensic pathologist is to provide 22 testimony in court. And our initial view -- it certainly 23 was my initial view -- that the transcript should not be 24 included. 25 And that what we should do is concentrate
2141 on -- on making the review as pure as possible, looking at 2 the histology, the photographs, the autopsy report, and 3 anything that was essentially directly relevant to the 4 post-mortem examination. 5 MS. LINDA ROTHSTEIN: I have to ask you, 6 Doctor, why you used the adjective "pure" to describe 7 those features of Dr. Smith's work as contrasted with his 8 testimony. 9 DR. MICHAEL POLLANEN: Because those 10 represent the items that are closest to the post-mortem. 11 And what we were hoping to measure was the quality of the 12 post-mortem examination. 13 And, certainly, I became of the view, and 14 that view was championed by the defence attorneys that 15 were representing stakeholders and the Committee, that you 16 could not separate the -- the quality of the post-mortem 17 examination from the quality of testimony. 18 Because there essentially was an unbroken 19 chain between the two (2). And so there was -- there was 20 a view given by, predominantly, Ms. Wasser that we should 21 include transcripts. 22 COMMISSIONER STEPHEN GOUDGE: Was that 23 because, Dr. McLellan, some of the cases about which you 24 had heard concerns expressed involved not simply the 25 pathology but also the articulation of opinion in giving
2151 evidence? 2 DR. BARRY MCLELLAN: That is the case, 3 yes. That was the case and that -- I have some further 4 recollection of the discussion at this meeting than Dr. 5 Pollanen's. 6 It was felt by certain Committee members 7 that we couldn't possibly review the contribution of Dr. 8 Smith to the ultimate conclusion of the case without 9 looking beyond his autopsy report and including what may 10 have come out in testimony, some of which may have been 11 quite different or additive than what was in the report. 12 COMMISSIONER STEPHEN GOUDGE: Sorry -- 13 MS. LINDA ROTHSTEIN: Sure. 14 COMMISSIONER STEPHEN GOUDGE: -- Ms. 15 Rothstein -- 16 MS. LINDA ROTHSTEIN: Please do, sir. 17 COMMISSIONER STEPHEN GOUDGE: -- but I 18 should have asked you this when we were talking about your 19 June announcement of the concept, Dr. McLellan. 20 You refer there to conclusions reached in a 21 number of cases concerning Dr. Smith that had been 22 concerns expressed to you, that the Office had received. 23 What range of number did you have? 24 I mean, we have obviously reviewed today 25 Jenna's case and Valin's case. They were clearly
2161 uppermost in the minds of the people at the Office. 2 How many more were there about which you 3 had heard concerns? Or is that a question that is 4 difficult to answer? 5 DR. BARRY MCLELLAN: Well, I -- I can tell 6 you. I have to refer back to the list as to how I'm going 7 to refer to the cases. But I can tell you the ones that 8 were concerning me at the time, and it would include the 9 Nicholas case -- 10 COMMISSIONER STEPHEN GOUDGE: All right. 11 DR. BARRY MCLELLAN: -- the Valin case; 12 Jenna, Sharon. 13 14 CONTINUED BY MS. ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Tab 58, Dr. 16 McLellan, may assist you. And it's 115929. 17 DR. BARRY MCLELLAN: Thank you. So we 18 covered off the --- 19 COMMISSIONER STEPHEN GOUDGE: Is that the 20 universe of cases about which you had heard concerns 21 expressed? Without pinning it down, Dr. McLellan, there 22 were clearly that range of cases? 23 DR. BARRY MCLELLAN: Yes. 24 COMMISSIONER STEPHEN GOUDGE: And over 25 what period of time had you heard those concerns
2171 expressed? 2 DR. BARRY MCLELLAN: Well, certainly since 3 January of 2001, going back to two (2) cases, and only one 4 (1) of those is referenced here. And -- 5 COMMISSIONER STEPHEN GOUDGE: What is the 6 other one (1) that is not referenced here? 7 DR. BARRY MCLELLAN: That would be -- 8 COMMISSIONER STEPHEN GOUDGE: If you are 9 going to do this, Ms. Rothstein, I just -- I meant to ask 10 this when -- 11 DR. BARRY MCLELLAN: Sure. That would be 12 Tyrell is the -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. BARRY MCLELLAN: -- other case that's 15 not -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. BARRY MCLELLAN: -- mentioned on this 18 list. 19 COMMISSIONER STEPHEN GOUDGE: Okay. 20 DR. BARRY MCLELLAN: Then, as I indicated, 21 in and around this time there have been significant media 22 coverage around a number of cases. And, Commissioner, 23 that list that is at Tab 58 includes most of those cases. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25
2181 CONTINUED BY MS. ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: And I'm just going 3 to stop for the moment for those who are trying to follow 4 without the benefit of the screens or the knowledge that 5 we have. The cases listed -- 6 COMMISSIONER STEPHEN GOUDGE: Yes, sorry, 7 I did not mean to -- 8 MS. LINDA ROTHSTEIN: -- involve Amber and 9 Nicholas and Sharon, Kporwodu and Veno, Jenna and Valin. 10 Those are the cases that Dr. McLellan has referred to on 11 that document. 12 COMMISSIONER STEPHEN GOUDGE: And then in 13 addition, he referred to Tyrell's case. 14 MS. LINDA ROTHSTEIN: Correct. 15 DR. BARRY MCLELLAN: Correct. 16 COMMISSIONER STEPHEN GOUDGE: Thanks. 17 Sorry, did not -- 18 MS. LINDA ROTHSTEIN: Not a problem. 19 But we -- but we were still on the subject, 20 Dr. Pollanen and Dr. McLellan, of the appropriateness of 21 including a review of the transcripts of testimony of Dr. 22 Smith. 23 And turning away from consideration of him 24 for the moment, can you help us with the context? Is 25 there any peer review process that you know of, Dr.
2191 Pollanen, in which the testimony of a forensic pathologist 2 is regularly reviewed in some way? 3 DR. MICHAEL POLLANEN: Not medical 4 processes. 5 MS. LINDA ROTHSTEIN: So you're talking 6 about the fact that on appeal, lawyers pour over the 7 transcripts of forensic pathologists all the time? 8 DR. MICHAEL POLLANEN: Yes. 9 MS. LINDA ROTHSTEIN: But -- but I'm 10 talking about a peer review process, one (1) that is 11 created by forensic pathologists for forensic 12 pathologists. 13 DR. MICHAEL POLLANEN: Not to my 14 knowledge. 15 MS. LINDA ROTHSTEIN: And how difficult -- 16 I know I'm getting way ahead, and Mr. Sandler will tell us 17 that this is part of the systemic issues that he's going 18 to deal with, but just while we're sitting here, how 19 difficult would it be to design such a process? 20 DR. MICHAEL POLLANEN: To rev -- to 21 systematically review courtroom testimony as part of a 22 quality assurance process, very difficult. 23 COMMISSIONER STEPHEN GOUDGE: Why? 24 DR. MICHAEL POLLANEN: Manpower. 25 COMMISSIONER STEPHEN GOUDGE: So it's a
2201 resourcing issue? 2 DR. MICHAEL POLLANEN: It's a resourcing 3 issue. It's -- there are also issues that flow from discl 4 -- to disclosure obligations and criteria for assessment. 5 Those would be the main issues. 6 COMMISSIONER STEPHEN GOUDGE: Wouldn't it 7 be possible to devise a kind of best practices for giving 8 evidence against which any testimony could be reviewed? 9 DR. MICHAEL POLLANEN: Well we tried to 10 accomplish that in the educational program. The day and a 11 half expert witness workshop is essentially meant to deal 12 with all those issues. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: So turning to bottom 16 of page 2, we're back, Registrar, at 034168, at page 2. 17 The minutes reflect -- and that's Tab 64 again, Dr. 18 Pollanen and Dr. McLellan. 19 The minutes reflect that the discussions of 20 the meeting led, I gather, those in attendance to realize 21 that a subcommittee was necessary. Can you speak to that 22 please, Dr. McLellan? 23 DR. BARRY MCLELLAN: Certainly the fulsome 24 discussion covered a wide range of issues. And it was 25 very clear to me that there was a significant amount of
2211 work that needed to be done in order to design the review 2 process. 3 If you recall, I indicated at the time of 4 the announcement that I was going to try to have a further 5 announcement within weeks as to what that review process 6 might be. 7 And it was clear at this meeting that there 8 was a lot of work to be done. So it was agreed by all 9 present the best way to do that was to strike a 10 subcommittee, a group who could work over the summer 11 months. 12 With that in mind, the subcommittee was 13 created. The members were Michael Pollanen, Shawn Porter, 14 Bob Strathdee, and Cindy Wasser. 15 It was agreed that the committee would meet 16 over the summer and that we would reconvene as a larger 17 committee during the week of August 15th, 2005, to hear 18 the recommendations of the subcommittee. 19 MS. LINDA ROTHSTEIN: So the subcommittee 20 was formed of Dr. Pollanen, one Crown attorney, one 21 representative of the Defence Bar, and a police officer -- 22 senior police officer? 23 DR. BARRY MCLELLAN: Correct. 24 MS. LINDA ROTHSTEIN: And then the list of 25 agenda items for them to move forward on is set out on
2221 page 3 of that document. And the notion was that there 2 would be a further meeting as you've said. 3 So, Dr. Pollanen, can you move us forward 4 in time? I know the minutes don't reflect all the work 5 that was done by the subcommittee. And can you just 6 sketch out for us, in the little bit of time remaining, 7 how the subcommittee went about doing that list of -- of 8 items? 9 DR. MICHAEL POLLANEN: Collaboratively. 10 The -- the subcommittee's purpose was to design a review 11 process set within the perimeters that had been decided in 12 the greater committee and representing the unique 13 perspectives of everybody at the table. 14 And the review process had to encapsulate 15 the -- the main issues that I've previously identified and 16 -- in my view -- most importantly, be methodologically 17 correct. In other words, we had to pay attention to not 18 introducing any type of systematic error within the review 19 process. 20 So the -- the mechanics were achieved, 21 essentially, by meeting. So we met together as -- as a 22 group, and had additional conversations through email and 23 telephone, some of which were quite heated on certain 24 issues. 25 And the -- the main issue, essentially, to
2231 -- to address in the first instance was the transcript 2 issue, in fact. 3 MS. LINDA ROTHSTEIN: Okay. 4 DR. MICHAEL POLLANEN: And the -- it had 5 been decided at the greater committee meeting, the -- the 6 full committee, that transcripts would not be included in 7 the review. 8 And as I've indicated, there was concern on 9 the -- on the part of the Defence Bar that transcripts 10 would not -- that, you know, transcripts should be 11 included. So, we had -- we had several exchanges over 12 that issue. And, again, my initial view was that 13 transcripts should not be included. 14 And through the arguments that were put 15 forth and through discussion, I came to change my view on 16 that topic. And, in fact, the greater subcommittee 17 subsequently changed their -- their view on that. 18 MS. LINDA ROTHSTEIN: We look ahead to Tab 19 72, Dr. Pollanen; it's 129, Registrar, 279. Does that 20 record the first two (2) meetings of the subcommittee? I 21 think it does. 22 DR. MICHAEL POLLANEN: Yes. 23 MS. LINDA ROTHSTEIN: And just a few other 24 mechanics that I think are important for the Commissioner 25 to know; how had the Office of the Chief Coroner
2241 undertaken the task of identifying the cases that were to 2 be the subject of the review and those that weren't, and 3 how much certainty was there around the numbers? 4 DR. MICHAEL POLLANEN: There was some flux 5 over time with the numbers. And we identified the cases 6 largely through looking at our database of records, as 7 well as working with the Crown attorney on the Committee, 8 Mr. Porter, who essentially, on his end, provided 9 information and an RN providing information to identifying 10 -- to identify all the cases. 11 Now, I should point out that although the 12 subcommittee was -- was working very hard on these issues, 13 other members of our office were in fact doing quite a lot 14 of ancillary work to identify cases and one (1) of the 15 issues that became very apparent was stratifying by legal 16 outcome. 17 MS. LINDA ROTHSTEIN: What you're 18 suggesting, Dr. Pollanen, is one (1) of things, at least 19 early on, seemed to be very important to triage the cases 20 in terms of their importance and whether someone was still 21 in prison and, therefore, that case should be given some 22 greater urgency. 23 DR. MICHAEL POLLANEN: Yes. 24 MS. LINDA ROTHSTEIN: Right. 25 DR. MICHAEL POLLANEN: And -- and that
2251 process was actually quite difficult to determine because 2 it required a three (3) point correlation between the 3 Crown, our office, and the police; because all of this 4 information is actually not coordinated in one (1) 5 database. 6 COMMISSIONER STEPHEN GOUDGE: I sort of 7 took as a given that the audit had identified at least the 8 main body of Dr. Smith's cases from 1991. 9 DR. MICHAEL POLLANEN: It would -- 10 COMMISSIONER STEPHEN GOUDGE: That gave 11 you the sort of basic forty (40)? 12 DR. MICHAEL POLLANEN: It would form the 13 major subset, yes -- 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. MICHAEL POLLANEN: -- but would not 16 include, for example, all of the consult cases. 17 COMMISSIONER STEPHEN GOUDGE: I see, and 18 that's how the number moves up from forty (40). 19 DR. MICHAEL POLLANEN: That, in addition 20 to other factors. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: Dr. McLellan, did 24 you want to speak to that? 25 DR. BARRY MCLELLAN: No, simply to say
2261 that the number did increase from that original forty (40) 2 up to forty-three (43) by the time of the meeting of the 3 Forensic Services Advisory Committee, up to forty-four 4 (44) by the time of the November announcement, and forty- 5 five (45) by the time the review was complete. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: And were all of 10 those additions to the -- to the group of cases, 11 consultations as opposed to autopsies? Who knows? 12 DR. BARRY MCLELLAN: I think they were. 13 DR. MICHAEL POLLANEN: I think they were. 14 Well, one (1) of them was, what we've called in the past, 15 "Baby S". 16 DR. BARRY MCLELLAN: Baby S was actually 17 included originally. 18 COMMISSIONER STEPHEN GOUDGE: Originally, 19 all right. 20 DR. BARRY MCLELLAN: Yes. So I believe 21 that they were all consult cases. 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: Right. Just in the 25 last minutes remaining, Dr. Pollanen, the other issue that
2271 is made note of on this document is the difficulty that 2 was, at least initially, experienced recruiting panel 3 members. 4 Tell us about that, please. 5 DR. MICHAEL POLLANEN: It was very 6 difficult to find forensic pathologists that would sit on 7 the panel, for a number of var -- various reasons. 8 First of all, you have to recognise that 9 there are forensic pathologists that are quite capable to 10 perform autopsies. But reviewing cases and having 11 experience in review of autopsies, particularly in 12 controversial cases, is essentially a very sm -- it's a 13 small subset of pathologists that are willing, capable to 14 do that work. 15 So, for example, most forensic pathologists 16 -- of which there are not many -- don't do, as part of 17 their regular practice, review work. So that was a 18 factor. 19 We had set a fairly high bar initially, 20 based upon the -- the principles I'd -- that I had 21 outlined. And I had already set what I thought was a 22 fairly high bar in suggesting a group of pathologists for 23 the Valin review. 24 So I thought that there should be no reason 25 to deviate from that bar that had been set. So these --
2281 that were -- those were some of the initial 2 considerations. 3 Then we had the considerations of 4 geography, which -- which flow from the medical examiner 5 argument, and practical things like availability, because 6 people in this discipline are very busy. 7 So those were some, not all, of the factors 8 that went into making it highly challenging to find 9 pathologists. 10 MS. LINDA ROTHSTEIN: And as of July, the 11 only member of the Panel that had been confirmed was Dr. 12 John Butt? 13 DR. MICHAEL POLLANEN: Yes. He -- he had 14 indicated he was willing to partake in the group. 15 MS. LINDA ROTHSTEIN: So confirmed isn't 16 quite right, but he was willing if asked? 17 DR. MICHAEL POLLANEN: Correct, yes. 18 MS. LINDA ROTHSTEIN: All right. So, 19 Commissioner, we're about at the stage where, if it's your 20 pleasure, we can end for the day. And I can assure that 21 we are well on track to completing the evidence of these 22 witnesses on behalf of the Commission. 23 COMMISSIONER STEPHEN GOUDGE: Good. Thank 24 you, gentlemen. Tomorrow morning at 9:30. 25
2291 (WITNESSES RETIRE) 2 3 --- Upon adjourning at 4:29 p.m. 4 5 6 7 8 Certified correct, 9 10 11 12 13 _____________________ 14 Rolanda Lokey, Ms. 15 16 17 18 19 20 21 22 23 24 25