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 14th 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler (np) ) 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 (np) ) 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 (np) ) of Toronto and Nishnawbe 15 Sheila Cuthbertson ) 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 (np) ) 23 24 Natasha Egan (np) ) College of Physicians and 25 Carolyn Silver ) Surgeons
41 APPEARANCES (cont'd) 2 3 Michael Lomer (np) For Marco Trotta 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS 2 Page No. 3 Opening Comments 6 4 5 MICHAEL SVEN POLLANEN, Resumed 6 BARRY MCLELLAN, Resumed 7 8 Continued Examination-In-Chief by Ms. Linda Rothstein 7 9 Cross-Examination by Mr. Brian Gover 136 10 Cross-Examination by Mr. Niels Ortved 152 11 12 13 Certificate of transcript 228 14 15 16 17 18 19 20 21 22 23 24 25
61 2 --- Upon commencing at 9:30 a.m. 3 4 COMMISSIONER STEPHEN GOUDGE: Good 5 morning. I want to take a moment this morning to address 6 an important concern that I have regarding the use of 7 individual names by the media in covering this 8 Commission. 9 On November 1, 2007, I issued my ruling on 10 the requests for non-publication orders. My ruling was 11 clear and Commission counsel provided the members of the 12 media with a confidential list of all the names that are 13 not to be published. 14 Commission counsel has also provided to 15 the media a list of pseudonyms that can be used. I 16 cannot stress strongly enough the importance of the 17 publication ban. In many cases these individuals have 18 already suffered a great deal of harm as a result of 19 their interactions with the criminal justice system and 20 the practice of pediatric forensic pathology in Ontario. 21 I will not allow those individuals to be 22 re-traumatised by careless reporting of this Commission. 23 Both yesterday and today the Toronto Star's coverage 24 shows a troubling carelessness in this respect; it was in 25 breach of my order.
71 If there are further breaches, then those 2 members of the media may not be granted access to the 3 media room or the materials contained therein. I want to 4 leave no doubt that I take this matter very seriously. 5 Commission Counsel are available to answer any questions 6 that members of the media might have regarding whether or 7 not a particular name can be reported on and I encourage 8 you to consult with them should you have any doubts as to 9 whether or not a name is subject to a publication ban. 10 Ms. Rothstein...? 11 12 MICHAEL SVEN POLLANEN, Resumed 13 BARRY MCLELLAN, Resumed 14 15 CONTINUED EXAMINATION-IN-CHIEF BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Good morning, 17 Commissioner, Dr. Pollanen, and Dr. McLellan. 18 Commissioner, this morning I propose to spend some time 19 with our witnesses navigating the terrain of the process 20 by which the Smith review came to be designed and 21 implemented. 22 I know, Commissioner, that this is of some 23 considerable interest to you. There is a lot of material 24 that we have, documentary and otherwise, that speaks to 25 it, and as I anticipate we'll hear from these witnesses,
81 there were many, many issues that they had to consider in 2 developing the review process. 3 So, Dr. Pollanen, Dr. McLellan, when we 4 left off yesterday we were chronologically in July, mid 5 July of 2005. I believe I had taken you to Tab 72, which 6 is 129279, and you had begun to explain the commiss -- to 7 the Commissioner about the work of the subcommittee of 8 the Forensic Services Advisory Committee that was created 9 in order to deal with a number of very specific issues 10 that arose in creating this process. 11 May I ask whether looking at that document, 12 Dr. Pollanen, which is Tab 72, the minutes of that first - 13 - of the first two (2) subcommittee meetings you are able 14 to assist us as to whether there was any discussion at 15 that early stage about contacts with the media by members 16 of the subcommittee or generally speaking publically about 17 the work of the Smith review? 18 DR. MICHAEL POLLANEN: It was a tacit 19 agreement as to confidentiality. 20 MS. LINDA ROTHSTEIN: And that was 21 because...? 22 DR. MICHAEL POLLANEN: The sensitive 23 nature of the -- of the issues at hand. 24 MS. LINDA ROTHSTEIN: All right. Now, the 25 other thing that you touched on yesterday was the issue
91 about whether or not it was appropriate to look at 2 transcripts of the testimony of Dr. Smith. And I'm 3 wondering if you could assist the Commissioner, Dr. 4 Pollanen, as to whether or not there was a -- a proponent, 5 a particularly vocal proponent of that method of 6 proceeding? 7 DR. MICHAEL POLLANEN: Yes, there was. 8 MS. LINDA ROTHSTEIN: Who was that? 9 DR. MICHAEL POLLANEN: Ms. Wasser. 10 MS. LINDA ROTHSTEIN: And, in contrast, 11 was there one member of your subcommittee who was less 12 enthusiastic about that prospect? 13 DR. MICHAEL POLLANEN: Yes. 14 MS. LINDA ROTHSTEIN: Who was that? 15 DR. MICHAEL POLLANEN: I think it would be 16 Mr. Porter, but also myself. 17 MS. LINDA ROTHSTEIN: Okay. And do you 18 recall what it was that Mr. Porter was concerned about in 19 relation to the use of transcripts for the purpose of this 20 review? 21 DR. MICHAEL POLLANEN: I think there were 22 many issues, but one of them related to delays and 23 difficulties in obtaining transcripts and how that might 24 slow down the process. 25 MS. LINDA ROTHSTEIN: All right. I want
101 to turn your attention, if I may then, Dr. McLellan, to 2 the document that you'll find at Tab 102. And Registrar, 3 you may -- you will find that at 002956. 4 And I just want, Dr. McLellan, you to help 5 assist the Commissioner in understanding the way some of 6 the consultations which Dr. Pollanen ultimately undertook, 7 with respect to some of these cases, where he actually 8 prepared full reports; how that work inter-related with 9 the work that was to be done by the external reviewer. 10 So, that's -- that's really the issue. And 11 I look at this letter, Dr. McLellan, and I see that by 12 this point -- August of 2005 -- there is a -- a report by 13 Dr. Pollanen with respect to the Paolo Case. So, can you 14 help us? Was that part of this review? Was it separate 15 from this review? Your letter creates at least some 16 question around that. 17 DR. BARRY MCLELLAN: There were two (2) 18 cases that arose during the time of the Smith Review. One 19 (1) was the Paolo Case; the other was the Joshua Case. 20 And in both of these cases, I felt it was appropriate for 21 Dr. Pollanen, in his role as Chief Forensic Pathologist, 22 to be reviewing the materials and providing an opinion and 23 a report which was to be sent to myself. 24 The circumstances were different in the 25 Paolo Case. My recollection is that concerns had been
111 brought to our attention with regard to some potential 2 disagreement around certain facts. And I felt it was 3 appropriate, based on the information I had, for Dr. 4 Pollanen to look into the matter and determine whether, as 5 Chief Forensic Pathologist, he felt there was concern with 6 any facts. 7 The circumstances around Joshua were 8 slightly different in that concerns were brought to my 9 attention about a Family Court matter that was taking 10 place in parallel. And I was concerned in that particular 11 case about how long it may take for the external reviewers 12 to complete their work, and I asked for Dr. Pollanen's 13 assistance in preparing a report on that case as well. 14 MS. LINDA ROTHSTEIN: So, fair for the 15 Commissioner to conclude that these two (2) cases were 16 given to Dr. Pollanen because of some concern about the 17 timeliness of full reports on them? 18 DR. BARRY MCLELLAN: That's correct. 19 MS. LINDA ROTHSTEIN: Right. And so, Dr. 20 Pollanen, at that stage, by August, you were at least 21 engaged in three (3) of the cases -- Jenna and Valin. 22 You've told us about the work that you did in those two 23 (2) cases. 24 And now Paolo. May I ask you whether, at 25 that stage, consideration had been given by you as to the
121 nature of the participation that you would then involve 2 yourself in, in the review itself? 3 DR. MICHAEL POLLANEN: Well, there was a 4 lot of discussion in the subcommittee around that issue, 5 and I had views on it myself. And, ultimately, it was 6 decided that my involvement should be minimized in the 7 review process to the point that I would sit on the 8 subcommittee, provide pathological input on the 9 subcommittee, facilitate whatever -- how I could, the 10 medical aspects of the subcommittee's work, but in terms 11 of expert decision making by the panel or for example, 12 their -- the ultimate reconciliation meetings that we will 13 come to in the future, I was not a, as it were, voting 14 member. 15 And when substantive issues were discussed 16 relating to cases that I had previously been involved 17 with, I was excused from official meetings. 18 MS. LINDA ROTHSTEIN: I take it that that 19 took some time to develop as a strategy, but that those 20 discussions started fairly early on in the work of this 21 subcommittee. 22 Is that fair? 23 DR. MICHAEL POLLANEN: Correct. 24 MS. LINDA ROTHSTEIN: All right. Looking 25 at Tab 65 then, gentlemen, and, Registrar, you'll find it
131 at 034171. 2 As I understand it, Dr. McLellan, that was 3 the next meeting of the full Forensic Services Advisory 4 Committee on August 17th of 2005? 5 DR. BARRY MCLELLAN: Correct. 6 MS. LINDA ROTHSTEIN: Would you turn to 7 the second page of that document please, Registrar? 8 Just a small point of process, Dr. 9 McLellan. I note under paragraph 2, report from the 10 Forensic Services Advisory Subcommittee, that there's a 11 reference to three (3) meetings of that subcommittee held 12 since July 5, 2005. 13 I -- I am certain nothing turns on it, but 14 for reasons that I can't assist, we only have minutes of 15 three (3) -- or two (2) rather. I'm wondering if either 16 of you can assist me as to whether there were in fact two 17 (2) subcommittee meetings in July, or three (3) as 18 suggested here? 19 DR. BARRY MCLELLAN: Whether or not two 20 (2) meetings took place in July, or whether there was a 21 third meeting in August, I can't say. I certainly minuted 22 the fact there had been three (3). 23 And I'm not sure if Dr. Pollanen has a 24 different recollection as to the number of subcommittee 25 meetings or not.
141 DR. MICHAEL POLLANEN: I don't. But one 2 possibility, there were occasions where the subcommittee 3 met immediately before the larger committee and on that 4 basis the minutes were sort of rolled into the -- the 5 larger committee meeting. And that was related to 6 challenges in -- in getting very busy people together for 7 meetings. 8 MS. LINDA ROTHSTEIN: Now, Dr. McLellan, 9 we can see that there's some consideration given at this 10 meeting to stratifying the cases. 11 Can you assists the Commissioner with what 12 the thinking was of your committee at that stage, about 13 that issue? 14 DR. BARRY MCLELLAN: Well, first of all, 15 the subcommittee did report through one of it's members to 16 each of the meetings of the Forensic Services Advisory 17 Committee where there had been a meeting between. There 18 were a number of issues that the subcommittee had been 19 asked to address. 20 The subcommittee came forward, with again, 21 a recommendation -- and the subcommittee was only making 22 recommendations to the larger committee -- that there be a 23 stratification of cases. And that was to ensure that 24 certain cases could be given higher priority and reviewed 25 earlier in the review process, because there was
151 potentially some time pressure on having the case 2 reviewed. 3 MS. LINDA ROTHSTEIN: And fair to say the 4 principle time pressure arose from concerns about liberty 5 interests still being restricted, or not? 6 DR. BARRY MCLELLAN: No, that's correct. 7 MS. LINDA ROTHSTEIN: Right. So that when 8 we review the minutes, it's fair for the Commissioner to 9 have the sense that there was always some priority, at 10 least proposed to be given to those cases where the 11 liberty interests of an individual were still very much an 12 issue? 13 DR. BARRY MCLELLAN: That's correct. 14 MS. LINDA ROTHSTEIN: All right. Turning 15 to the last paragraph under sub 2, Dr. Pollanen, there's a 16 last sentence there that's intriguing: 17 "As a result of further discussions at 18 this meeting, it was suggested that 19 where appropriate transcripts of other 20 pathology experts also be reviewed." 21 Can you tell us what the rational for that 22 recommendation was at that stage, please? 23 DR. MICHAEL POLLANEN: Well, at this point 24 we essentially had reversed a -- a decision not to use 25 transcripts. And then the next issue that became apparent
161 was, if we're going to use transcripts for Dr. Smith, and 2 there was other expert evidence, then it would be most 3 proper to contextualize the evidence heard in the trial by 4 looking at the other evidence. 5 MS. LINDA ROTHSTEIN: Now, ultimately we 6 know that wasn't a source of material for the review, and 7 we can walk through the minutes and find that. But can 8 you flash-forward for us simply, Dr. Pollanen, by 9 answering the question. Why in the end was that 10 recommendation not implemented? 11 DR. MICHAEL POLLANEN: Well, it was 12 implemented in some cases; for example, the Valin Case. 13 The difficulties related to technical difficulties in 14 obtaining transcripts, which I was greatly surprised is a 15 very challenging affair, and involved a lot of effort with 16 our team as well as the Ministry of the Attorney General. 17 MS. LINDA ROTHSTEIN: And, so, is the 18 Commissioner to understand from that, Dr. Pollanen, that 19 it -- it felt like it was too big a task to get all of 20 those transcripts? 21 DR. MICHAEL POLLANEN: Yes, it was very 22 difficult to obtain transcripts in the first instance, let 23 alone, for example, reviewing the entr -- entire trial 24 record to determine if there were other expert transcripts 25 available.
171 MS. LINDA ROTHSTEIN: Dr. McLellan, 2 turning to the next steps, you were in number 2 to prepare 3 a protocol for the review of the cases. And there's 4 reference in the second sentence to an in -- to a review 5 by internal pathologists. 6 Can you assist us with what was 7 contemplated by a review by internal pathologists? 8 DR. BARRY MCLELLAN: Right. And what it 9 says is "certain cases may be reviewed", because this was 10 still a matter that was being considered by the 11 subcommittee and was to come back to the larger committee. 12 But it had been identified by the 13 subcommittee that a number of the cases appear to be not 14 complex. And in the interest of completing the review in 15 as timely a fashion as possible, that there may be an 16 advantage of having a subset of the cases reviewed by 17 pathologists within the Province of Ontario, as opposed to 18 asking the external pathologists to review all cases. 19 MS. LINDA ROTHSTEIN: So we should read 20 "internal review" as synonymous with "pathologists who 21 practice in Ontario"? 22 Is that fair? 23 DR. BARRY MCLELLAN: Correct. 24 MS. LINDA ROTHSTEIN: All right. Dr. -- 25 Dr. Pollanen, help us with that. How was there, even at
181 this stage, some notion in your subcommittee that some 2 cases were less complex than others? 3 Were they on the table before all of you? 4 Were you all looking at them? Give the Commissioner some 5 sense of that, please. 6 DR. MICHAEL POLLANEN: Yes. The -- the 7 process for stratifying cases, essentially by judicial 8 outcome or legal importance, necessarily involved 9 familiarization with the spectrum of cases. And there 10 were some cases that were fairly straightforward from a 11 forensic pathology point of view. And, on that basis, an 12 internal review seemed to be most appropriate. But we 13 needed to develop an objective process to identify such 14 cases. 15 One -- one thing that's not captured in the 16 minutes that represents a realization as we went through 17 this process, was that the initial intent was to collate 18 review packages and then send them to the external 19 reviewers. And that process -- so, many of -- in the 20 early days, we were going along the assumption that what 21 we would do is create review packages and send them out 22 for review and collate the reports, centrally, by mail. 23 With our experiences with the external 24 reviewers in the Valin Case, it became apparent that we 25 would not have appropriate control over timeliness of
191 reports if we lost control of a mechanism to ensure 2 reports coming back in a timely fashion. 3 So what we -- this resulted, eventually, in 4 the decision to convene panels. And this was partially 5 practical to ensure that the review would actually be 6 completed. Because it became apparent that if we relied 7 upon several different experts over the world that had 8 very busy schedules, there was a very real possibility 9 that, despite our best efforts, the review may not even in 10 fact come to conclusion in a reasonable timeframe. 11 So, there -- there are a number of 12 additional considerations that are not well documented in 13 the -- in the minutes such as that. And, at some point in 14 time, we made that decision to bring the reviewers to 15 Toronto. 16 COMMISSIONER STEPHEN GOUDGE: Did you have 17 a target time frame? 18 DR. MICHAEL POLLANEN: Dr. McLellan, I 19 believe, had announced one (1) year. 20 DR. BARRY MCLELLAN: I did, at the time of 21 the November announcement. 22 COMMISSIONER STEPHEN GOUDGE: One (1) 23 year? 24 DR. BARRY MCLELLAN: One (1) year. 25
201 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: And -- 3 DR. BARRY MCLELLAN: I believe I said 4 approximately one (1) year. 5 MS. LINDA ROTHSTEIN: And -- and I hope 6 this morning, Commissioner, to develop with these 7 witnesses what some of the obstacles were to meeting that 8 time frame as we go through it. 9 But picking up on what you were just 10 saying, Dr. Pollanen, about the external review that was 11 to be done in the Valin case, as I recall your evidence 12 yesterday, as a result of your review it was agreed that 13 there would be some external reviewers. 14 I think we've seen mention of some of the 15 external reviewers that were at least proposed but, I 16 don't think we've the closed the loop and there's lots of 17 documents here that we could take the Commissioner to, and 18 -- and Commissioner, there really are -- it really is 19 explored in depth in this document book. 20 But can you just encapsulate what occurred, 21 who was identified ultimately to do that and -- and give 22 the Commissioner some sense of how long it took? 23 DR. MICHAEL POLLANEN: Well, this was a 24 very long process that involved consultation between 25 members of the subcommittee, it had also involved some
211 literature reviews on my part. 2 Ultimately we decided on a panel, and an 3 international panel, which in -- included one (1) 4 Canadian, as well as our two (2) ex -- internal 5 pathologists and we defined the internal pathologists as 6 being internal to Ontario, but external to the Toronto 7 Forensic Pathology Unit. 8 If you recall on day 1 I indicated that 9 paediatric forensic cases are also performed in the 10 Hamilton and London Unit, and therefore we asked the 11 directors of those two (2) units to be our internal 12 experts for the purposes of review. 13 MS. LINDA ROTHSTEIN: And their names are 14 again? 15 DR. MICHAEL POLLANEN: Dr. Chitra Rao -- 16 MS. LINDA ROTHSTEIN: Mm-hm. 17 DR. MICHAEL POLLANEN: -- and Dr. Mike 18 Shkrum. And the -- for the external panel we had -- 19 MS. LINDA ROTHSTEIN: Are we talking about 20 Valin's case here specifically or have we gone off track 21 here? 22 DR. MICHAEL POLLANEN: Oh, I'm speaking -- 23 MS. LINDA ROTHSTEIN: Yeah. 24 DR. MICHAEL POLLANEN: -- in general. 25 MS. LINDA ROTHSTEIN: Yeah. No, I -- I --
221 sorry, my question wasn't clear enough and I could tell by 2 your answer that perhaps we were talking about two (2) 3 different things. 4 If I could just ask you to turn up a 5 document and it'll help refresh your memory, Dr. Pollanen, 6 and sor -- I apologise if my question was unclear, Tab 87, 7 003835, the letter that is sent to Dr. Crane from you, Dr. 8 Pollanen, with respect to Valin's case specifically. 9 I was picking up on your comment that you 10 had earlier said about the challenges of getting the full 11 consultation reports back from the external reviewers on 12 Valin's case. And if I look at this document it suggests 13 to me that the -- that Dr. Crane was first provided with 14 materials in September, 2005, is that right? 15 DR. MICHAEL POLLANEN: Correct, yes. 16 MS. LINDA ROTHSTEIN: All right. And can 17 I just ask you a question about that on the second page, 18 please, Registrar, because there is some terminology there 19 that I don't think you've yet familiarised us with. 20 In the third paragraph on that page you 21 make reference to photomicrographs. 22 DR. MICHAEL POLLANEN: Yes. 23 MS. LINDA ROTHSTEIN: Help us with that. 24 DR. MICHAEL POLLANEN: Photomicrographs 25 are microscopic pictures that were present in my report --
231 MS. LINDA ROTHSTEIN: All right. 2 DR. MICHAEL POLLANEN: -- on the Valin 3 case. 4 MS. LINDA ROTHSTEIN: Okay. So, I was 5 really making reference to the fact that Dr. Crane was 6 first asked to conduct his consultation starting in 7 September and I think it's fair to say, if we look through 8 the documents, it took some time for Dr. Crane to complete 9 his report. 10 DR. MICHAEL POLLANEN: Yes. 11 COMMISSIONER STEPHEN GOUDGE: Sorry, can I 12 just ask you, does that mean photographs of slides? 13 DR. MICHAEL POLLANEN: Yes, photographs of 14 the microscopic enlargements of -- 15 COMMISSIONER STEPHEN GOUDGE: What is seen 16 when one looks at the slide through a microscope? 17 DR. MICHAEL POLLANEN: Yes, Commissioner. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: And do those take 21 the place of slides almost completely? 22 DR. MICHAEL POLLANEN: Well, there is a -- 23 there is a selection process that the pathologist uses 24 when they take a photograph of a slide, so it's not 25 entirely representative of the -- of the entire slide;
241 it's representative of what the pathologist believes to be 2 the important content of the slide. 3 COMMISSIONER STEPHEN GOUDGE: But the 4 reproduction allows the histology to be done, as well as 5 of when we're looking at that part of the slide? 6 DR. MICHAEL POLLANEN: Yes. Indeed that's 7 one of the ways we teached (sic) histology is through 8 pictures and textbooks. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: And does this -- 12 where they're available, does this avoid the necessity of 13 actually having to send the original slides to the second 14 reviewer? 15 DR. MICHAEL POLLANEN: Sometimes -- 16 MS. LINDA ROTHSTEIN: All right. 17 DR. MICHAEL POLLANEN: -- but not always. 18 MS. LINDA ROTHSTEIN: Can you just amplify 19 that answer, please? 20 DR. MICHAEL POLLANEN: Well, there is no 21 replacement for actually looking at the slides yourself, 22 particularly if the -- if the case is contentious and 23 interpretation of the histological findings, you know, 24 essentially, is so closely related to the ultimate issue, 25 you have to look at the slides yourself.
251 MS. LINDA ROTHSTEIN: So, two (2) 2 questions, Dr. Pollanen. 3 Firstly, am I right in looking at this 4 material and understanding that it took Dr. Crane some 5 time to prepare his consultation report on the Valin Case? 6 DR. MICHAEL POLLANEN: Yes. 7 MS. LINDA ROTHSTEIN: And can you assist 8 the Commissioner as to why, to your understanding, that 9 did take some time for Dr. Crane to prepare? 10 DR. MICHAEL POLLANEN: I believe he's a 11 very busy man. 12 MS. LINDA ROTHSTEIN: And second question: 13 Was the fact that he was doing an independent consultation 14 report in the Valin Case, did that mean that the Valin 15 Case wasn't going to be subject to the same quality 16 assurance review, the more abbreviated review, that was 17 contemplated by this entire Smith Review process? 18 DR. MICHAEL POLLANEN: No. 19 MS. LINDA ROTHSTEIN: Explain that for us. 20 Why would there be a need to have a full consultation, on 21 the one hand by Dr. Crane, and then have him, as part of 22 the external review of -- of Dr. Smith's cases, also 23 complete a much more abbreviated written document? 24 DR. MICHAEL POLLANEN: Well, in fact, what 25 we did in that case is that Professor Milroy filled out
261 the -- the checklist and that was really for 2 methodological consistency. 3 MS. LINDA ROTHSTEIN: So what I hear you 4 to be saying, Dr. Pollanen, is you wanted to have those 5 documents for all of the cases in the universe that you 6 were reviewing. And, in this case, it made sense to have 7 it done by someone other than Dr. Crane, 'cause obviously 8 he was doing something more fulsome for other purposes. 9 DR. MICHAEL POLLANEN: Well, in fact, 10 Professor Milroy also wrote a fulsome report. We just 11 assigned the checklist -- 12 MS. LINDA ROTHSTEIN: Okay. 13 DR. MICHAEL POLLANEN: -- to Professor 14 Milroy. 15 MS. LINDA ROTHSTEIN: You remind me. 16 Thank you. All right, may I ask you turn up Tab 66 then, 17 Doctor? And, Registrar, this is 034174. 18 This is the revised minutes of the Forensic 19 Services Advisory Committee meeting -- the next meeting, 20 as I understand it, Dr. McLellan, that took place. 21 Can you walk us through what the principle 22 decisions that were made -- can you tell the Commissioner 23 about the principle decisions that were made as a result 24 of that meeting? 25 DR. BARRY MCLELLAN: Yes, I can. Starting
271 on the second page under "Business Arising", Mr. Porter 2 first provided an overview of his review of, at that time, 3 forty-three (43) cases, and that was in order to break the 4 cases down into different categories. 5 And the specific categories are highlighted 6 on pages 2 and the top of page 3. Again, this was to 7 assist with the full Committee understanding how cases 8 were being categorized and how this may help, at the end 9 of the day, with having a more efficient review process. 10 There was agreement that the priority for 11 the review should be the second through fourth categories. 12 The discussion then centred around the materials that 13 should be considered for the review. 14 And on the bottom of page 3, and then on to 15 page 4, the various materials are outlined; the last of 16 which, on page 4, is the transcripts of Dr. Smith's 17 testimony and any other pathology witnesses who testified, 18 when available. 19 There was then a discussion around the four 20 (4) external pathologists to participate in the Review. 21 Now, at this particular time, we did not have curriculum 22 vitae from the four (4) individuals. So, I agreed to 23 collect the CVs, to send them to the Committee members 24 and, in a covering letter, requested that they let me know 25 if they had any concerns.
281 As a result of the discussion at the 2 Committee, the members were in agreement. But, again, it 3 was appropriate that they all have the opportunity to 4 review the curriculum vitae. 5 There was then a discussion around a very 6 important matter, and that was the notification of 7 families as to the fact that a review would be taking 8 place, as well as their counsel, where appropriate. 9 And the only item that was unrelated to the 10 review process itself was item 4 on page 5 and that was an 11 item that I raised yesterday, and that was the ongoing 12 effort to prepare a list of pathologists who would be 13 willing to provide opinions for defence counsel. 14 MS. LINDA ROTHSTEIN: Dr. Pollanen, 15 dealing with the selection of the external pathologists, 16 we touched on this a bit, but the minutes, as minutes, of 17 course, are always a little bit dry. 18 Tell us, if you will, what your impression 19 was of the extent of the debate there was amongst your 20 subcommittee members about who was appropriate to conduct 21 this review, can you give us a -- give a sure sense of how 22 hotly debated that was, how much back and forth there was? 23 DR. MICHAEL POLLANEN: The -- the -- I 24 think it would be fair to say that the early days of the 25 subcommittee were characterised by heated debates on many
291 issues and one of the issues related to the selection of 2 pathologist. 3 And so there was -- there was quite a lot 4 of discussion, and telephone conversations, and email 5 communication surrounding this issue. And ultimately, 6 it's my view that the panel that we constituted 7 represented a very good compromise of interest in the 8 entire group, as well as maintaining a very, what I think 9 to be, a high standard in forensic pathology. 10 And I bring you back to my initial letter 11 regarding reviewers for the Valin case, and there's 12 considerable overlap. I think that the -- the panel that 13 we ultimately constituted represents probably the -- a 14 subset of the all-stars of forensic pathology right now in 15 -- in the world. 16 MS. LINDA ROTHSTEIN: And our database 17 actually discloses, Commissioner, a lot of email traffic 18 about the various other names that were put forward, and 19 certainly in my view it wouldn't be particularly helpful 20 for you to know what the specific names are, but, Dr. 21 Pollanen, can you give the Commissioner again a sense of 22 just how many people were considered at some stage for 23 selection to this panel? 24 DR. MICHAEL POLLANEN: Well, I can only 25 speak -- I can't speak for all the committee members
301 because one of the -- one of the processes that was used 2 was the individual committee members were supposed to 3 communicate with other people in their group, for example, 4 the Defence Bar were to have fulsome discussions to 5 identify pathologists. 6 I'm not certain how many they identified, 7 how many the Crown identified, but ultimately in -- in my 8 sort of analysis or -- or triaging of pathologists, I went 9 through dozens of -- of considerations. 10 And what -- to my great surprise, perhaps 11 not surprise, but my pleasure was that there were 12 recurrent names across different lists and many of those 13 names are represented in the -- in the panel that we have. 14 So I would -- I took this portion of the -- 15 of the early stages to be very -- an important goal 16 because how this review was going to unfold, the 17 credibility of the review, how it was to be viewed by 18 professionals in the legal community and the medical 19 community was in large part to be determined by the panel. 20 COMMISSIONER STEPHEN GOUDGE: You used the 21 word "compromise" in defining one dimension of this group, 22 in what sense do these names represent a compromise? 23 DR. MICHAEL POLLANEN: I think a 24 collaboration is a better word. It was a -- it was a 25 collaboration looking at -- for example, if you used the
311 polar opposites of the Crown and the defence, there are -- 2 most pathologists, by virtue of our employment, testified 3 more frequently for the prosecution. 4 And as a result, there is sometimes a 5 perception in the Defence Bar that, because a witness does 6 not testify for the defence, that they're in some way more 7 closely aligned philosophically with the prosecution. And 8 we did not want to make an error that way or the other 9 way, for example, to identify pathologists that, for the - 10 - for the purposes of the Ministry of the Attorney 11 General, or the prosecution service would seem to be 12 weighted in the other direction. So it -- it was a -- it 13 was a collaboration of professionals to determine the best 14 composition. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: Next Tab 67, 18 Registrar, 034179. 19 I note just in passing, Dr. McLellan, that 20 on that occasion Mr. Porter was unable to attend, so 21 someone else from the Ministry of the Attorney General 22 from the Crown law office, Ms. Rosella Cornaviera intended 23 in his stead. 24 And I take it that didn't create any 25 problems? There was a continuity of information of some
321 kind as between Mr. Porter and Ms. Cornaviera? 2 DR. BARRY MCLELLAN: That's correct. 3 MS. LINDA ROTHSTEIN: And again, Dr. 4 McLellan, if you just want to walk the Commissioner 5 through the highlights of that meeting? 6 DR. BARRY MCLELLAN: Starting on -- on 7 page 2, by this point the four (4) pathologists that we've 8 discussed had been contacted. They had agreed to 9 participate. 10 This meeting was shortly after the previous 11 meeting. The curriculum vitae had not yet been received, 12 but consistent with the minutes of the last meeting were 13 to be sent out when received. 14 And again, if the committee members had any 15 concerns, they were to forward the concerns to my 16 attention. There was agreement with the proposed 17 stratified review process. 18 The timing of the review is -- is outlined 19 on the top of page 3. It was my estimate at the time that 20 the review would take about twelve (12) months to 21 complete. I then outlined for the committee the process I 22 intended to use to inform the public about the review, 23 leading to my November announcement. 24 And the only item of business that was not 25 related to the review was one of the guidelines which Dr.
331 Pollanen was developing for forensic pathologists, and 2 that item was discussed at a future meeting. 3 MS. LINDA ROTHSTEIN: And just ask you to 4 -- to underline for the Commissioner that your estimate at 5 that stage, in October of 2005, is that it would take six 6 (6) months to obtain the transcripts and other materials 7 for review. Was that born out by the facts? 8 DR. BARRY MCLELLAN: It took longer then 9 six (6) months to obtain transcripts. And again, in some 10 cases the case was reviewed without all transcripts. 11 MS. LINDA ROTHSTEIN: And I think, Dr. 12 McLellan, in various subsequent minutes you refer to that 13 feature of the review as being the rate-limiting step? 14 DR. BARRY MCLELLAN: That is the term I 15 used, correct. 16 MS. LINDA ROTHSTEIN: Yes, can we turn 17 then to your November 1 announcement, which, Commissioner 18 and Dr. McLellan, you'll find at Tab 82, Registrar, 19 033969. So this is, as I understand it, Dr. McLellan, the 20 first public information that you provided following your 21 initial June announcement? 22 DR. BARRY MCLELLAN: Correct. 23 MS. LINDA ROTHSTEIN: All right. And 24 again, it's quite detailed. I know the Commissioners had 25 an opportunity to read it before, and will no doubt do so
341 again, but from your perspective, give us a sense of what 2 you felt was important to make public at this juncture in 3 the review process? 4 DR. BARRY MCLELLAN: Well, returning to 5 the point that the review was being conducted to maintain 6 public confidence in the work that was being conducted 7 through the office. 8 I wanted to provide sufficient information 9 so that the public were aware of what types of cases were 10 being reviewed; the fact there was going to be a priority 11 attached to certain cases; to review the three (3) 12 specific areas where the reviewers would be asked for 13 opinion -- I'll return to that in a moment -- the 14 materials that were to be included for review, the names 15 and a brief description of the four (4) experts. 16 At that time I did identify by name the ten 17 (10) cases that were to be prioritized. 18 MS. LINDA ROTHSTEIN: And just stopping 19 there, Dr. McLellan, the ten (10) cases that were to be 20 prioritized were the cases in which it had been determined 21 that there were still liberty restrictions? 22 DR. BARRY MCLELLAN: Correct. 23 MS. LINDA ROTHSTEIN: Okay. And, 24 Commissioner, you may want to note that of the ten (10) 25 cases at the top of page 4: Valin, Paulo, Tyler, and
351 Kenneth ended up being in the twenty (20) cases that are 2 being considered with some detail in this Inquiry. 3 COMMISSIONER STEPHEN GOUDGE: Do that four 4 (4) again for me, Ms. Rothstein. 5 MS. LINDA ROTHSTEIN: Valin, Paulo, Tyler, 6 Kenneth. I think I have that right, do I not, Dr. 7 McLennan? 8 COMMISSIONER STEPHEN GOUDGE: Thank you. 9 DR. BARRY MCLELLAN: Yes, that's right. 10 COMMISSIONER STEPHEN GOUDGE: Thank you. 11 DR. BARRY MCLELLAN: Now, the importance 12 of contacting family members was also highlighted during 13 my press conference. We had had significant challenges in 14 trying to obtain contact information for many of the 15 family members again recognizing that some of these cases 16 went back to the early '90s. There's one (1) case that in 17 fact was from the late '80s. 18 So I took this opportunity to, in fact, 19 request the assistance of the public families to contact 20 us through a 1-800 number if they had any information or 21 questions for the office with respect to the review; 22 specifically in an attempt to contact family members. 23 I did estimate that the entire review would 24 take about twelve (12) months to complete, and at this 25 time, as well, I wanted to make it clear how the results
361 of the review would be communicated at the end. I didn't 2 want there to be expectations with respect to information 3 that would be released twelve (12) months or -- or more 4 down the road. 5 So that was then identified in the 6 subsequent paragraphs and then concluded with highlighting 7 again why this was such an important step for the office 8 to take in maintaining public confidence. 9 Now, the one area that I did go over and 10 this is -- I'd like to highlight now in response to a 11 question the Commissioner had yesterday afternoon that I 12 indicated I would come to when we spoke about the November 13 announcement; on page 2 if I could, Ms. Rothstein? 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Yeah. Can we go 17 back, please, Registrar to page 2? Thank you. 18 DR. BARRY MCLELLAN: The reviewers were 19 asked to provide their opinions on three (3) specific 20 areas: 21 First, whether they agreed that the 22 important examinations were conducted. 23 Second, whether they agreed with the facts 24 reported as arising from these examinations. 25 And third, whether in their opinion the
371 conclusions reached with respect to the cause of death 2 were supported by the materials that were provided for 3 review. 4 MS. LINDA ROTHSTEIN: That's helpful, Dr. 5 McLellan. Thank you. 6 Dr. McLellan, at this stage, can you assist 7 us as to what thought had been given about the extent to 8 which Dr. Smith should be consulted or involved in the 9 review process? 10 DR. BARRY MCLELLAN: There was discussion 11 about that at the larger committee. Dr. Pollanen can 12 indicate the extent of discussion at the subcommittee. It 13 was felt that it would not be appropriate for Dr. Smith to 14 participate, directly, in the review process, and there 15 was a consensus at the level of the full committee on that 16 point. 17 MS. LINDA ROTHSTEIN: And, Dr. Pollanen, 18 at the subcommittee how did those discussions evolve? 19 DR. MICHAEL POLLANEN: Essentially along 20 the same line. 21 COMMISSIONER STEPHEN GOUDGE: Well -- 22 MS. LINDA ROTHSTEIN: May I ask you -- 23 COMMISSIONER STEPHEN GOUDGE: Sorry. 24 MS. LINDA ROTHSTEIN: Sorry. 25 COMMISSIONER STEPHEN GOUDGE: You were
381 going to ask...? 2 MS. LINDA ROTHSTEIN: No, please, 3 Commissioner. 4 COMMISSIONER STEPHEN GOUDGE: Why was it 5 felt appropriate? 6 DR. MICHAEL POLLANEN: Well, in the 7 subcommittee, it was felt appropriate because we believe 8 that the design dealt with the methodological issues that 9 were relevant and that the appearance of the process being 10 independent was best served by not having Dr. Smith 11 intimately involved with the review. 12 I also felt that as a pathologist on the 13 committee that I could give advice to the -- to the -- 14 both the subcommittee and the larger committee on areas 15 that were of a pathological nature and did not require 16 external input from Dr. Smith for those reasons. 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: If you would turn up 20 Tab P, at the back of this second volume, and, Registrar, 21 139919. We have a letter from McCarthy Tetrault, Ms. 22 Langford addressed to Mr. Al O'Marra. 23 24 (BRIEF PAUSE) 25
391 MS. LINDA ROTHSTEIN: This is addressed to 2 Mr. O'Marra, who of course is legal counsel to the OCCO. 3 Am I right in assuming, Dr. McLellan, that 4 this letter would have come to your attention? 5 DR. BARRY MCLELLAN: Yes, Mr. O'Marra 6 shared this letter with me. 7 MS. LINDA ROTHSTEIN: All right. And as I 8 looked through the database, am I right in concluding that 9 this looks to be the first formal response in writing from 10 counsel for Dr. Smith to the -- the review process, and 11 the decisions that had been reached with respect to it's 12 design at -- 13 DR. BARRY MCLELLAN: It's -- 14 MS. LINDA ROTHSTEIN: -- that stage? 15 DR. BARRY MCLELLAN: -- it's the first 16 that I'm aware of. 17 MS. LINDA ROTHSTEIN: All right. And can 18 you tell us looking at the various points that are 19 identified by Ms. Langford, at the bottom of the page she 20 says: 21 "Dr. Smith is aware of the following 22 additional materials that were not 23 expressively identified in Dr. 24 McLellan's statement." 25 I want to go through those, either with
401 you, Dr. Pollanen, or you, Dr. McLellan, as to what the 2 committee ultimately did about inclusion or exclusion of 3 those materials. 4 Who's -- who's in a better position to 5 speak to that? I -- I confess I don't know. 6 DR. BARRY MCLELLAN: It may be in fact 7 that -- it may be appropriate for us to do it point by 8 point. I'm not sure, Dr. Pollanen, if you wish to start 9 with the issue of radiographs or not? 10 DR. MICHAEL POLLANEN: Certainly. So 11 radiographs were included, yeah, in the review -- 12 MS. LINDA ROTHSTEIN: All right. 13 DR. MICHAEL POLLANEN: -- where they -- 14 where they were available. And the -- more importantly 15 the consultant's report, the radiologist that reported the 16 films were in -- was included in the review package. 17 I can tell you that where radiographic 18 interpretations dealt with specific issues in the case, 19 such as in the case of Paulo and Joshua, there was 20 extensive review of the original radiographs. 21 So radiographs were contemplated in the 22 review. 23 MS. LINDA ROTHSTEIN: Okay. Consultations 24 reports? 25 DR. BARRY MCLELLAN: Perhaps I -- I could
411 address this. Again, any written consultation reports 2 that could be found were included for review by the 3 subcommittee. I recall looking into the specific matter 4 of some computerized records that may have been at the 5 hospital but not in the actual hard copy of files. 6 And although I don't have any documentation 7 to support this, recall being told that because of the 8 length of time, that such reports would not be possible to 9 be found. Now I know there were some attempts in some 10 specific cases, and if they could be found, they were 11 included. 12 MS. LINDA ROTHSTEIN: Number 3: 13 "Dr. Smith advises that for many years 14 his investigations were reviewed by Dr. 15 David Chaisson or his replacement, as 16 well as by the appropriate regional 17 coroner." 18 And of course, Commissioner, we're going to 19 hear from Dr. Chaisson himself about the reviews he 20 conducted, and that's obviously a longer subject. 21 But dealing with specifically with the 22 forms that were completed, were those included in the 23 package of materials that were ultimately considered by 24 the reviewers, Dr. Pollanen? 25 DR. MICHAEL POLLANEN: No.
421 MS. LINDA ROTHSTEIN: And why was that? 2 DR. MICHAEL POLLANEN: The forms for the 3 reviews that are described in this letter, essentially are 4 forms indicating that a review had taken place, a review 5 had been completed, but no substantive details or analysis 6 of -- of the review. 7 I should say that the -- the review 8 packages did contain information about the coroner's 9 investigation and to the extent that the coroner's 10 investigation overlaps the pathology, particularly in the 11 fact that the coroner uses the information of the 12 pathologist, that information was provided. 13 MS. LINDA ROTHSTEIN: Number 4. 14 "Dr. Smith advises that the cases in 15 which he was involved were presented to 16 the forensic pathologists of the 17 coroner's building. Each month a list 18 of cases which were presented together 19 with the relevant histories were 20 created. It's not known whether or not 21 these lists and histories were 22 retained." 23 So first question: Are they available? 24 Were they available? 25 DR. BARRY MCLELLAN: So I looked into this
431 matter with the administrative staff and we were unable to 2 find any lists of such cases. 3 MS. LINDA ROTHSTEIN: Number 5. 4 "Dr. Smith advises that the cases were 5 presented at the weekly clinical 6 pathologic conference at the HSC. While 7 no minutes were taken of the discussion, 8 during these conferences we understand 9 that a list is kept of which cases were 10 presented on which days and who was 11 present during those discussions." 12 Did you make any inquiries about that 13 potential source of information, Dr. McLellan? 14 DR. BARRY MCLELLAN: Now, I remember 15 discussing this matter with Dr. Pollanen at the time. I 16 don't actually recall looking into this matter through The 17 Hospital for Sick Children, and my recollection of the 18 discussion was whether or not a case was discussed or not. 19 There would be no minuting of what the discussion was, and 20 I didn't believe that that was going to be value added for 21 the purpose of the reviewers. 22 MS. LINDA ROTHSTEIN: What did you -- 23 DR. MICHAEL POLLANEN: It's what I would 24 call "rounds" what's being referred to here? 25 DR. BARRY MCLELLAN: Yes.
441 MS. LINDA ROTHSTEIN: What did you think 2 about the value of any such material for this review 3 process, Dr. -- Dr. Pollanen? 4 DR. MICHAEL POLLANEN: Well, I've -- I've 5 certainly attended those rounds and the -- there is no 6 output from the round process that would have been 7 informative to the reviewers. 8 Essentially in the rounds, the cases were 9 discussed informally, usually as a teaching vehicle and 10 certain images would be projected on the screen. 11 MS. LINDA ROTHSTEIN: Number 6, Dr. 12 Smith's handwritten notes: 13 "It is possible that Dr. Smith may have 14 handwritten notes in his personal 15 pathology files in relation to some of 16 the forty-four (44) cases to be 17 investigated. We intend to make a 18 search and so on. 19 Can I start from the assumption, maybe 20 wrong, that that would have been something that you, Dr. 21 Pollanen, would have thought the reviewers should have if 22 they were, indeed, available? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. LINDA ROTHSTEIN: All right. And do 25 you recall whether or not any such search was undertaken
451 by Dr. Smith? 2 DR. MICHAEL POLLANEN: Eventually, I 3 became -- I came to realize that his personal files on 4 the individual cases had been located, and they were 5 transmitted to our office and the relevant materials were 6 included. 7 MS. LINDA ROTHSTEIN: Okay. All right. 8 Thanks to Mr. Centa, I'm able, Commissioner, at this stage 9 to just give you an example of one of the forms prepared 10 by Dr. Chaisson so you have a sense of what's been 11 described by out witnesses and indeed is referred to in 12 this letter. May we have 052125, please, Registrar? 13 14 (BRIEF PAUSE) 15 16 MS. LINDA ROTHSTEIN: And may I ask you, 17 Dr. Pollanen, to confirm that indeed that is the sort of 18 form that you were just describing for the Commissioner? 19 DR. MICHAEL POLLANEN: Yes. 20 COMMISSIONER STEPHEN GOUDGE: Thanks. 21 MS. LINDA ROTHSTEIN: We have many of 22 those, Commissioner and, obviously as I've said, we will 23 have the opportunity to hear directly from Dr. Chaisson -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MS. LINDA ROTHSTEIN: -- with respect to
461 how those reviews were conducted. 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 4 (BRIEF PAUSE) 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Commissioner, just 8 for your notes but we don't need to turn it up -- and I 9 don't have my Blackberry here but there's still a lot of 10 buzzing. 11 On November 4th of 2005, 111610 reflects 12 Dr. McLellan's letter, or one (1) of some, to Mr. Porter 13 requesting assistance in obtaining the transcripts and 14 quite a detailed saga with respect to that. 15 Our record also reflects -- the database 16 also reflects -- that on November the 21st of 2005 counsel 17 for Dr. Smith indeed attended at the OCCO to review files 18 in an effort to determine if there were any additional 19 documents that ought to be provided for the purpose of the 20 review. 21 But we don't have a Begdoc number for that 22 yet. Regrettably, Commissioner, that is a new incoming 23 document. I'll certainly advise Counsel as soon as we've 24 been able to identify that by number. 25 Now, mid-November; my understanding is that
471 there was, in fact, a very abbreviated subcommittee 2 meeting of the Forensic Services Advisory Committee that 3 took place in mid-November, Dr. Pollanen. 4 DR. MICHAEL POLLANEN: Yes. 5 MS. LINDA ROTHSTEIN: But our review of 6 the database suggest that there are no minutes of that 7 meeting. Am I right as well in that conclusions? 8 DR. MICHAEL POLLANEN: Correct. 9 MS. LINDA ROTHSTEIN: Right. Can you tell 10 us about that mid-November, 2005 meeting -- why it was 11 abbreviated? 12 DR. MICHAEL POLLANEN: The meeting quickly 13 degenerated. 14 MS. LINDA ROTHSTEIN: You're going to have 15 to explain that one. 16 DR. MICHAEL POLLANEN: There was some 17 controversy surrounding some statements that one of the 18 Committee members made to the press. 19 MS. LINDA ROTHSTEIN: Well, we don't need 20 to belabour this, Dr. Pollanen, but if you could be a 21 little bit more specific it would be helpful. 22 DR. MICHAEL POLLANEN: So, one of the 23 Committee members, Ms. Wasser, who was participating in 24 creating the review process, had made certain statements 25 to the press regarding Dr. Smith and those statements
481 appeared to demonstrate a bias against Dr. Smith. And 2 that event generated great concern to the subcommittee, 3 and ultimately resulted in a deterioration of one of the 4 subcommittee meetings where the subcommittee became 5 fragmented and no substantive decisions were made. And on 6 that basis, no minutes were produced. 7 COMMISSIONER STEPHEN GOUDGE: Did 8 subcommittee operate by consensus, or did it have a 9 notional chair? 10 DR. MICHAEL POLLANEN: Well, I was the -- 11 the notional chair responsible for making sure everybody 12 was heard in the subcommittee. But it was -- was meant to 13 be a collaborative process. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: And I gather that 17 Detective Superintendent Strathdee was particularly 18 unhappy about the media reportage in which Ms. Wasser was 19 involved? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. LINDA ROTHSTEIN: And I -- I gather he 22 left that meeting? 23 DR. MICHAEL POLLANEN: Yes, he -- he left 24 the room and -- and essentially resigned from the process 25 at that time.
491 MS. LINDA ROTHSTEIN: And I understand 2 that Mr. Porter was also -- I'm not saying that you 3 weren't -- but he was also extremely troubled by the 4 report he got at that meeting of Ms. Wasser's comment. 5 DR. MICHAEL POLLANEN: I think it would be 6 fair to say that we were all very troubled by that. 7 MS. LINDA ROTHSTEIN: So, can you walk us 8 through, if you will, Dr. McLellan, what occurred as a 9 result of that issue having made its way into the work of 10 the subcommittee? 11 DR. BARRY MCLELLAN: So, concerns were 12 expressed to me in and around this time. I -- I recall 13 Dr. Pollanen talking to me about the difficult meeting. I 14 can't say it was that day or whether it was shortly 15 thereafter. 16 Subsequently, I received a letter from Mr. 17 Porter outlining his concerns. I shared the same 18 concerns, and I was concerned with someone participating 19 as a member of the subcommittee and the larger Committee 20 and simultaneously taking an opportunity to make public 21 remarks expressing concern about Dr. Smith. 22 So, as a result, I met with Ms. Wasser. 23 There was agreement that it was not appropriate for her to 24 be continuing on the Committee at that time, and not being 25 a member of the larger Committee meant that she would not
501 be a member of the subcommittee. 2 The discussion was that she would not be a 3 member of the larger Committee until the completion of the 4 Smith Review. And subsequently, discussions at AIDWIC 5 resulted in Mr. Lockyer being re -- being recommended to 6 sit on the committee and he then joined both the larger 7 committee and the subcommittee. 8 MS. LINDA ROTHSTEIN: So, help us with 9 that, who made the recommendation that Mr. James Lockyer 10 ought to sit on the subcommittee and the larger committee 11 in the place of Ms. Wasser? 12 DR. BARRY MCLELLAN: I don't recall 13 specifically who communicated with me. 14 MS. LINDA ROTHSTEIN: But did you 15 understand -- well, let me start with this, what was your 16 view as to the characteristics of the person that was to 17 replace Ms. Wasser, what were you looking for as a 18 replacement? 19 DR. BARRY MCLELLAN: Well, Ms. Wasser was 20 a very value-added member of both the subcommittee and the 21 larger committee. Dr. Pollanen has talked about the 22 specific issue of transcripts and I can indicate I was not 23 in favour of transcripts being included initially, as 24 well. And I am convinced at the end of the day that it 25 would have been a mistake not to include transcripts. So
511 there -- there were many contributions being made. 2 We were looking for a member of the defence 3 -- of the Defence Bar who could add value to both the 4 larger committee and the subcommittee and when Mr. 5 Lockyer's name was brought forward, you know, I made the 6 decision that he was appropriate to be added to both 7 committees. 8 MS. LINDA ROTHSTEIN: Were you looking 9 specifically for a representative from AIDWIC, as opposed 10 to the Defence Bar more generally? 11 DR. BARRY MCLELLAN: It wasn't critical 12 that that be the case. I know that Mr. Porter, in his 13 letter to me, had recommended that that would be 14 appropriate; I did not disagree with that. 15 It was not essential that it be someone 16 from AIDWIC, but at the larger committee there was no 17 concern expressed to me about Mr. Lockyer specifically 18 being a member or it, you know, being a concern that it 19 was a member from AIDWIC. 20 MS. LINDA ROTHSTEIN: And what about you, 21 Dr. Pollanen, what were your views as to whether or not 22 the -- the new member of the subcommittee and of the 23 broader committee for this period ought to be Defence Bar 24 generally or specifically AIDWIC? 25 DR. MICHAEL POLLANEN: I thought that
521 AIDWIC would have brought an important element to the 2 work. Having said that, again, it was not a -- a firm 3 requirement, but the -- but the AIDWIC perspective was 4 relevant for two (2) main reasons. 5 The first is that that organisation has 6 credibility within one of the major, to use a lack of a 7 better word, stakeholder group in the criminal justice 8 system. 9 And as we did not know the outcome of the 10 review, the -- the review needed to be credible in all 11 spheres. 12 MS. LINDA ROTHSTEIN: Mm-hm. 13 DR. MICHAEL POLLANEN: So we thought that 14 that would be a ver -- a good reason. Secondly, the -- 15 specifically, Mr. Lockyer has experience on -- on matters 16 that relate to forensic evidence and forensic science and 17 had a long history, for example, with The Centre of 18 Forensic Science Advisory Committee. 19 MS. LINDA ROTHSTEIN: So it's an analogous 20 committee that does a similar kind of work for The Centre 21 for Forensic Sciences? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. LINDA ROTHSTEIN: A creation of the 24 Morin recommendations, as I understand it? 25 DR. MICHAEL POLLANEN: Yes, it was.
531 MS. LINDA ROTHSTEIN: Right. 2 COMMISSIONER STEPHEN GOUDGE: And I got 3 the sense yesterday, Dr. McLellan, that you sort of picked 4 up the idea from The Centre for Forensic Science Advisory 5 Committee. 6 DR. BARRY MCLELLAN: Yes, the committee 7 was modelled very closely to, and in fact, I -- I wrote 8 the terms of reference, or drafted the terms of reference, 9 and I used the terms of reference from The Centre of 10 Forensic Sciences Committee in -- in developing them. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. MICHAEL POLLANEN: There is an 13 additional point to be made about Mr. Lockyer, as well, 14 with -- with regard to AIDWIC, and that was that we were 15 also very concerned that the person who was coming to 16 represent the Defence Bar would also have a relationship 17 with other members, senior members in the Defence Bar; 18 that could provide additional views on issues that were of 19 interest to the committee. And specifically, we had 20 identified Ms. Marliss Edwards (phonetic) and Mr. Phil 21 Campbell as being important resources for Mr. Lockyer to 22 communicate to the rest of his agency. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: And what, if any,
541 consideration was given to the fact that AIDWIC was 2 already acting on a -- I think at this stage, at least 3 three (3) of these cases, and, indeed, Mr. Lockyer 4 specifically was acting on three (3) of the cases that 5 were in the universe of cases that were to be reviewed? 6 Both of you, actually, so whoever wants to 7 go first. Dr. Pollanen, would you begin, please? 8 DR. MICHAEL POLLANEN: Certainly. The -- 9 the main issue for the subcommittee membership was issues 10 surrounding process and procedure, rather than issues 11 related to the professional outcomes of the review 12 process, which would be determined by the panel. 13 So, there was -- there was a cleavage 14 between administrative processes, design process and the 15 actual opinion -- professional opinion -- that came out of 16 the Review. 17 And, because of that separation, we did not 18 feel -- and, certainly, I did not feel -- that having Mr. 19 Lockyer on the subcommittee could influence the latter 20 process. Essentially, you have to remember that forensic 21 pathologists are well used to working in the relatively 22 adverse environment of the criminal justice system. 23 And we -- there is not this influence that 24 is present between counsel and pathology, as it were. 25 And, because of that separation -- the methodological
551 administrative separation and the -- and the expert 2 evidence separation -- we did not think that was 3 problematic. 4 MS. LINDA ROTHSTEIN: But when you talk 5 about a separation and a cleavage, are you talking about 6 an intellectual division, or are you talking about 7 something quite practical? 8 In other words, was Mr. Lockyer going to 9 get easy access to these experts? Was he going to be 10 chatting with them about his cases or not? 11 DR. MICHAEL POLLANEN: No. That's -- that 12 -- that was not contemplated as part of his role in this 13 process. 14 MS. LINDA ROTHSTEIN: So the -- so, 15 because I asked the question probably in a -- in an 16 unfortunate way, your answer may be ambiguous on the 17 record. 18 Am I right, Dr. Pollanen, that there 19 wouldn't have been an opportunity in this process for Dr. 20 -- or, sorry -- for Mr. Lockyer to speak directly in an 21 attempt to influence the reviewers? 22 DR. MICHAEL POLLANEN: Correct. The 23 interaction that -- that the entire subcommittee had with 24 the panel was at the -- the first initial meetings with 25 the panel when they arrived in Toronto and there was a
561 presentation given -- giving a backdrop to the review 2 process. All subcommittee members were present at that 3 time. 4 MS. LINDA ROTHSTEIN: All right. Dr. 5 McLellan, what is your view on all this? 6 DR. BARRY MCLELLAN: The Forensic Services 7 Advisory Committee is an advisory committee to the Chief 8 Coroner. And, consistent with the terms of reference, I 9 was looking for a additional member who could add value. 10 I remember at the time discussing Mr. 11 Lockyer's potential membership with both Mr. O'Marra and 12 Mr. Porter. And it was agreed that he was someone who, 13 you know, could well add value. And, in subsequent 14 meetings, he -- he did, and he fulfilled that role well. 15 And I did not have concerns that, you know, 16 he would be unable to separate himself from any special 17 interests he may have around any individual case. So I 18 was comfortable with him being added as a member at that 19 time. 20 MS. LINDA ROTHSTEIN: And were any 21 particular precautions taken in the design process to deal 22 with the fact that Mr. Lockyer, indeed, represented 23 individuals involved in at least three (3) of the cases? 24 MR. BARRY MCLELLAN: I think probably most 25 appropriate for Dr. Pollanen to discuss that with respect
571 to discussions around individual cases at the level of the 2 subcommittee. 3 MR. LINDA ROTHSTEIN: Can you assist us 4 with that, please, Dr. Pollanen? 5 DR. MICHAEL POLLANEN: Well, yes. The -- 6 there was exclusion at relevant times. For example, I was 7 excluded when I was involved in certain cases, and that 8 was also practised for others. 9 MS. LINDA ROTHSTEIN: And Mr. Lockyer 10 would be one of those others? 11 DR. MICHAEL POLLANEN: Yes. 12 MS. LINDA ROTHSTEIN: Is there anyone else 13 who had to be excluded at various stages of the 14 discussions? 15 DR. MICHAEL POLLANEN: Not that I recall. 16 MS. LINDA ROTHSTEIN: All right. May I 17 ask you to turn then -- so -- so the process of Ms. Wasser 18 resigning, Mr. Lockyer replacing her; I take it took some 19 time? 20 DR. BARRY MCLELLAN: Well, in -- in fact, 21 once I met with Ms. Wasser and, you know, discussed the 22 matter with her, it was very shortly after that when Mr. 23 Lockyer was added to the committee. I'd have to go to the 24 individual terms of reference but I don't recall -- or to 25 the individual minutes -- but I don't recall there being
581 many meetings of the Forensic Services Advisory Committee 2 over that period of time. 3 MS. LINDA ROTHSTEIN: Right. But I guess 4 -- sorry, I'm looking at Tab 73, Dr. McLellan, and it's 5 129281, March 30, 2006, and I'm noting that this appears 6 to be the first meeting in which Mr. Lockyer is in 7 attendance. 8 Perhaps I drew the wrong conclusion, Dr. 9 McLellan, but I wondered whether the reason that the next 10 meeting of the Forensic Services Advisory Subcommittee was 11 not until the end of March was, indeed, because there had 12 -- it had taken some time to work through the process of 13 who was going to serve on this subcommittee? 14 DR. BARRY MCLELLAN: So I think the 15 subcommittee question is better addressed by Dr. Pollanen 16 with respect to timing. 17 MS. LINDA ROTHSTEIN: Can you assist me 18 with that then, Dr. Pollanen? 19 DR. MICHAEL POLLANEN: Yes, that -- that 20 is true. There are in fact other things going on at the 21 same time and that is there -- there are a lot of issues 22 related to obtaining materials, such as transcripts, which 23 is -- which was, as Dr. McLellan has said, a rate-limiting 24 step in our review. And a lot of organization is required 25 so this actually takes several weeks and months to -- to
591 occur and coupled with the issue of getting a replacement 2 on the subcommittee, time has elapsed for these efforts. 3 COMMISSIONER STEPHEN GOUDGE: Do you have 4 a rough date, Dr. McLellan, for when you met with Ms. 5 Wasser? 6 DR. BARRY MCLELLAN: My recollection is, 7 is that it was late January, and there is a copy of an 8 email that's included in the larger documents which 9 indicates my efforts to arrange a lunch meeting, and it 10 would be shortly thereafter. I believe it was late 11 January. 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: And that's January 15 2005? 16 DR. BARRY MCLELLAN: Correct. 17 MS. LINDA ROTHSTEIN: Okay. Commissioner, 18 I'm just going to see if I can help you with a few dates 19 here. 20 COMMISSIONER STEPHEN GOUDGE: '05 or '06? 21 DR. BARRY MCLELLAN: Sorry. 22 MS. LINDA ROTHSTEIN: Sorry, '06. Thank 23 you, everyone. 24 DR. BARRY MCLELLAN: '06. Thank you. 25 COMMISSIONER STEPHEN GOUDGE: Yes.
601 MS. LINDA ROTHSTEIN: Thank you. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: Mr. Porter's letter, 5 again not yet a BEGDOC, Commissioner -- but will be -- his 6 letter to Dr. McLellan is dated January the 20th of 2006. 7 So that would accord with your recollection, Dr. McLellan, 8 that your meeting was after and therefore sometime in late 9 January. 10 DR. BARRY MCLELLAN: And my recollection 11 is is that it was shortly after receiving that letter. 12 MS. LINDA ROTHSTEIN: Oh, we do have it. 13 Mr. Porter's letter has a Begdoc; it's 141671. 14 All right. 15 COMMISSIONER STEPHEN GOUDGE: And it's 16 dated -- 17 MS. LINDA ROTHSTEIN: January 20, 2006. 18 19 (BRIEF PAUSE) 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Okay. So back to 23 March 30th if we can, Dr. Pollanen, and it's 129, 24 Registrar, 281. Can you assist us with the progress of 25 your subcommittee's deliberations as at that time?
611 COMMISSIONER STEPHEN GOUDGE: Give me the 2 tab again? 3 MS. LINDA ROTHSTEIN: Sorry, Commissioner. 4 73. 5 COMMISSIONER STEPHEN GOUDGE: Thank you. 6 7 (BRIEF PAUSE) 8 9 DR. MICHAEL POLLANEN: So at this point in 10 time, the work is progressing. We're -- we're obtaining 11 materials; we are categorizing cases, and at this point I 12 suggest that we use some type of an objective process to 13 categorize the cases, ultimately, then stratifying them. 14 And I, in correspondence, have given a 15 letter to this effect and the committee then has 16 identified four (4) categories of cases. And this 17 provisional classification was meant to inform our 18 discussions and form some objective basis for determining 19 which cases will be externally reviewed or internally 20 reviewed. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: Okay. 24 DR. MICHAEL POLLANEN: The other major 25 activity that's occurring in parallel is that we now have
621 different sources of documents for the files on -- on 2 these individual cases. 3 For example, we have materials that 4 originate from The Office of the Chief Coroner files. We 5 have materials that originate from The Ministry of the 6 Attorney General, which is the transcripts. We have 7 materials that come from The Hospital for Sick Children, 8 which are essentially radiographs, microscopic slides, and 9 then finally we have Dr. Smith's files, his personal 10 files. So all of the information then is being collated 11 for each of the cases. 12 And then the other major task of the 13 committee, the subcommittee, is to define what subset of 14 this material will go into what we've called "the review 15 packages." 16 Now, this is a -- this is an important 17 administrative step and, you know, scientific step, 18 because it -- it really forms the reviewable nature of the 19 record. In other words, we're go -- we're giving the 20 experts a subset of the total. And we thought this was 21 important, but also that each of the committee members 22 should have a say in what documents were put into the 23 review packages. 24 So this -- we've called this process 25 vetting -- vetting review packages. So that is -- that
631 is a process that occurs not, in fact, during our 2 committee meetings; committee members are in fact 3 reviewing those documents outside and then coming with a 4 view to the committee and we discuss it and decide on the 5 package contents. 6 MS. LINDA ROTHSTEIN: All right. We're 7 going to move forward, hopefully just a little bit more 8 quickly without wanting to miss anything important, so 9 please stop me, either of you. 10 Tab 75, June 13th, 2006 meeting of the 11 subcommittee. Mr. Riley, 129288. 12 I note on page 2 of that document, please, 13 that it records -- if you would, please, number 3, thank 14 you: 15 "The role as subcommittee member verses 16 the role as legal counsel. Sherret- 17 Robinson case involves JL as defence 18 counsel and MP as Consultation 19 Pathologist. Possible conflicts may 20 exist for subcommittee when making 21 categorisation." 22 So what's the very specific issue that the 23 committee was concerned created a conflict, even at that 24 stage, before the reviewers show up and there's any 25 concern about, you know, in a -- improperly influencing
641 them? 2 Can you assist with what the very specific 3 concern appeared to be at that stage? 4 DR. MICHAEL POLLANEN: Well, essentially, 5 if -- if I had reviewed a case of Dr. Smith and came to a 6 conclusion that was not in full agreement with Dr. Smith, 7 then the -- to maintain the methodological consistency 8 throughout the entire process, then we decided that if 9 that were the case it should automatically go to external 10 review. So this essentially provided for a review of Dr. 11 Smith's work, but also of my work. 12 MS. LINDA ROTHSTEIN: And what about the 13 potential conflict that is raised here, with respect to 14 Mr. Lockyer's role, both as a subcommittee member and as a 15 legal counsel? 16 DR. MICHAEL POLLANEN: Well, we -- we 17 identified that that would be dealt with on an ad hoc 18 basis. So, for example, in -- in my involvement, any case 19 that I was involved with with Dr. Smith would 20 automatically go to external review, and that was a 21 systematic solution to the fact that my involvement was 22 direct to the case. 23 MS. LINDA ROTHSTEIN: Now, am I right in 24 understanding, Dr. Pollanen, that by mid-July you were at 25 the stage where you could call on your internal reviewers,
651 your Ontario reviewers, to do their review of the cases 2 that had been screened for that first stage internal 3 review? 4 DR. MICHAEL POLLANEN: Yes. 5 MS. LINDA ROTHSTEIN: All right. And the 6 two (2) internal reviewers who -- who were engaged in that 7 process were Dr. Chitra Rao and Dr. Michael Shkrum? 8 DR. MICHAEL POLLANEN: Yes. 9 MS. LINDA ROTHSTEIN: All right. And in 10 the end, as I understand it, they each took on five (5) 11 cases? 12 DR. MICHAEL POLLANEN: I believe so. 13 MS. LINDA ROTHSTEIN: Am I right about 14 that? 15 DR. MICHAEL POLLANEN: That's right. 16 MS. LINDA ROTHSTEIN: Commissioner, in our 17 database -- and again I don't think we need to look at 18 these documents -- we have a document which confirms, 19 032684, that Dr. Rao completed her internal review of five 20 (5) cases on July 17, 2006 and that Dr. Shkrum completed 21 his review -- sorry of ten (10) cases on July 31, 2006; 22 that's 057081. So I may have that wrong. 23 COMMISSIONER STEPHEN GOUDGE: So it's five 24 (5) and ten (10)? 25 MS. LINDA ROTHSTEIN: Five (5) -- five (5)
661 -- and ten (10) if my notes are correct. Can we -- can 2 we see 057081, please? 3 4 (BRIEF PAUSE) 5 6 MS. LINDA ROTHSTEIN: I don't think 7 there's a dispute about it except, perhaps -- well, it's 8 just one (1) example so we'll have to count them -- 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 MS. LINDA ROTHSTEIN: -- but if I'm 11 mistaken in that I'll make sure I clarify that for you, 12 Commissioner, subsequently. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: What -- what was the 16 result of the internal review, Dr. Pollanen? 17 DR. MICHAEL POLLANEN: Well, the output of 18 the internal review was the same as the external review in 19 that the checklists were filled out by the reviewing 20 pathologists and, where appropriate, narrative comments 21 were made. 22 MS. LINDA ROTHSTEIN: And in the end did 23 the internal reviewers find any level of concern that 24 required an external reviewer to also look at those cases? 25 DR. MICHAEL POLLANEN: No.
671 COMMISSIONER STEPHEN GOUDGE: They dealt 2 with three (3) areas the same? 3 DR. MICHAEL POLLANEN: Yes, they -- the 4 review was the exact same as the external review 5 methodologically; it's just that internal pathologists 6 were used. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: But simply put the 11 internal reviewers looked at cases; came to the conclusion 12 that in all of the cases that they looked at Dr. Smith's 13 work did not create any cause for concern? 14 DR. MICHAEL POLLANEN: Correct. 15 COMMISSIONER STEPHEN GOUDGE: That the 16 right exams were undertaken, that the facts were reported 17 properly and the opinions sustainable? 18 DR. MICHAEL POLLANEN: Yes, Commissioner. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Now, the next 22 meeting of The Forensic Service Advisory Committee appears 23 to have been in the Fall. If you would turn up 034189 24 October 23, 2006 and, Commissioner, I am at the moment 25 without a tab number for that. My apologies.
681 2 (BRIEF PAUSE) 3 4 MS. LINDA ROTHSTEIN: 034189. 5 69? Thank you, Mr. Centa. 6 It appears from the introductions that Mr. 7 Siebenmorgan is now joined; as you explained to us 8 yesterday he replaced Mr. O'Marra's chief counsel to the 9 Office of the Chief Coroner before that. 10 Dr. McLellan, can you take the Commissioner 11 through the important aspects of the decisions that were 12 reached at that meeting? 13 DR. BARRY MCLELLAN: Yes, the update of 14 the larger committee is outlined on page 2 of the minutes. 15 The larger committee was updated that the two (2) forensic 16 pathologists, in this case, Drs. Rao and Shkrum, had 17 assisted with reviewing the cases over the summer months. 18 There was an update provided on the 19 subcommittee activities with respect to the triaging of 20 cases and ratifying the packages of material with the 21 exception of transcripts and that was again because the 22 transcripts were the rate-limiting step. 23 I also outlined at that time that 24 additional cases had been identified for review, 25 especially in cases where an opinion had been provided in
691 consultation. I'd expressed previous concern that some of 2 these cases may be identified as the review progressed. 3 This was the first time that the larger 4 committee was aware that a decision had been made to have 5 the external reviewers come to Toronto, and this was as a 6 result of our experience with the Valin case. 7 MS. LINDA ROTHSTEIN: And just -- just 8 help us with that for a moment, Dr. McLellan. The 9 experience was that sending these materials far and wide 10 made it way too slow. 11 Is that fair? 12 DR. BARRY MCLELLAN: That's correct. I 13 mean there was one issue of just the impracticability of 14 having, you know, materials flown across the -- the world 15 and, you know, in the case of Valin, the slides were felt 16 to be very important and so therefore the slides were 17 actually taken to the experts in the custody of a police 18 officer. 19 And this, you know, was one of the learning 20 points from the review and it became clear that in order 21 to move ahead and have this completed in some reasonable 22 time frame, that was just not going to work. So the 23 decision was made to have the reviewers come to Toronto in 24 -- in panels. As well, it was clear, that we were going to 25 require and additional forensic pathologist and Dr. Saukko
701 from Finland was added. 2 There was an update with respect to 3 obtaining transcripts and some of the difficulties we were 4 having obtaining transcripts. And this was also an 5 opportunity for me to update the larger committee that the 6 review was not going to be completed by November 1st, 7 2006, as I had originally estimated, but that by changing 8 the strategy and having the external experts come to 9 Toronto, we felt that we could still complete the process 10 in a reasonably timely fashion. 11 The other agenda items that were discussed 12 were not related to the specific Smith Review, as 13 announced. 14 MS. LINDA ROTHSTEIN: Okay. And I'm sorry 15 we don't have time to deal with those other issues, Dr. 16 McLellan, but we -- we indeed will as this Inquiry 17 develops because some of those issues, such as the extent 18 to which defence counsel has the opportunity to consult 19 with pathologists will, I think, be one of our themes. 20 But if I could ask you to turn to Tab 77, 21 Commissioner, and Registrar, 129294. 22 Dr. Pollanen, I want to turn to you to give 23 us an update on the work of the subcommittee in November, 24 and specifically to focus on the decisions that were 25 reached that are set out in minuted form on page 3 of that
711 document, Registrar, with respect to what your role was 2 going to be precisely, and how this external review 3 meeting process was actually going unfold. 4 DR. MICHAEL POLLANEN: So much -- much of 5 the -- of the minute involves the detailed work of the 6 committee, but one of the issues that we dealt with was my 7 involvement with the panel and how that would unfold. And 8 the -- the issues essentially revolved around my 9 involvement as chair of the process, rather than a voting 10 member. 11 So, in other words, the -- the expert panel 12 was to give the expert opinion on these cases; they 13 weren't my expert opinions. But I was to facilitate the 14 process by, for example, providing them with textbooks, 15 literature, microscopes, while they were in our department 16 doing their work. 17 In addition, it was decided by the 18 committee that it would be helpful to give a background 19 seminar, as it were, about the issues related to Dr. Smith 20 and the review to situate the -- the review in a context. 21 MS. LINDA ROTHSTEIN: Right. 22 DR. MICHAEL POLLANEN: And that actually 23 was also important for another reason and that is because 24 some of the reviewers had been involved recently, around 25 the same time, with a -- a review of a slightly different
721 type, involving a pathologist called Dr. Michael Heath 2 (phonetic). And that review was through the home office in 3 the UK where the review had a slightly different focus, 4 which was not a focus that we wanted to have in the Smith 5 review. 6 So I needed to also explain some of the 7 boundary conditions for our review. 8 MS. LINDA ROTHSTEIN: All right. I note 9 at Tab 78 that the meeting continued that afternoon and is 10 actually set out in a separate minute. It seemed amusing 11 to me, at least, last evening, that the first meeting went 12 from 8:30 a.m. to 2:00 p.m. on November the 2nd and the 13 second meeting started at 2:00 p.m. until 4:20. It shows 14 you the level of humour that I found in his material last 15 evening, perhaps. 16 But I take it that was a long discussion? 17 There were a lot of mechanics still to work out, Dr. 18 Pollanen? 19 DR. MICHAEL POLLANEN: Yes. 20 MS. LINDA ROTHSTEIN: All right. And 21 then, indeed, we move forward in time to the Forensic 22 Services Advisory Subcommittee meeting just three (3) 23 weeks later on November the 20th. That's at Tab 79, 24 Commissioner. And it's 129301, Registrar. 25 And if you could just turn to the second
731 page, paragraph 3, Dr. Pollanen, and introduce us to the 2 discussion that arose at that meeting about the House of 3 Lords debate in relation to Shaken Baby. I know that's a 4 long conversation; I do. But, if you could at least give 5 us a glimpse of the discussions that took place during 6 your Committee meeting on that day about that subject. 7 DR. MICHAEL POLLANEN: Shaken Baby 8 Syndrome is a controversial area in forensic pathology, 9 currently. And I contemplated or thought that our review 10 had a reasonable chance of overlapping with that issue, as 11 it had been previously identified in other jurisdictions 12 and in the medical literature. 13 Because the Shaken Baby controversy is 14 extensive, I was wondering if the Review might aggregate 15 those cases and assign them to a particular reviewer, or 16 whether we should create a new instrument to capture the 17 nuances in the Shaken Baby Syndrome debate. 18 So, for example, we, unlike many of the 19 cases in the review series, the so-called Shaken Baby 20 cases came with them certain additional issues. And I 21 wondered if we should separate those cases off and deal 22 with those issues more contextually within the review 23 process. 24 It was decided that that would not be the 25 approach. It was decided that the -- those cases would
741 not be removed from the Review and identified as a 2 cluster. And it was decided that an additional instrument 3 would not be used; just the same checklist. 4 Having said that, as one of the reviewers 5 was specifically expert in this area, many of those cases 6 were assigned to Professor Whitwell, but not all. 7 COMMISSIONER STEPHEN GOUDGE: Was that 8 done deliberately? 9 DR. MICHAEL POLLANEN: Yes, because of her 10 expertise in the area. 11 COMMISSIONER STEPHEN GOUDGE: Why not all? 12 DR. MICHAEL POLLANEN: Well, as I've 13 indicated, some head injury cases were given to other 14 experts, and there was, in fact, a reconciliation process 15 where each pathologist provided their view, but the 16 overall subcommittee decided not to concentrate all of the 17 cases on one expert. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Dr. Pollanen, Dr. 21 McLellan, we have minutes of December meetings of the 22 Advisory Subcommittee. December 11th, 2006 is at Tab 80, 23 Commissioner. It's 129306. I'm going to just sort of 24 note them in passing, gentlemen, and then focus on the 25 actual work that was done in December by the panels.
751 December 20th, 2006 at Tab 81, 129308. 2 But, as I understand it, Dr. McLellan, you had your first 3 trio of reviewers attend in Toronto between December 4th 4 and December 8th of 2006; Professors Crane, Milroy and 5 Whitwell. 6 DR. BARRY MCLELLAN: Correct. 7 MS. LINDA ROTHSTEIN: And my understanding 8 was, Dr. Pollanen, that it had now been determined that on 9 the first day, you, Mr. Porter, Inspector Strathdee, Mr. 10 Lockyer, would meet with the reviewers and walk them 11 through the materials and the process by which you were -- 12 the process you were asking them to undertake? 13 DR. MICHAEL POLLANEN: Yes. 14 MS. LINDA ROTHSTEIN: Right. Now, my 15 understanding is that in order to enable that to be done 16 in an appropriate and fair way, two (2) documents were 17 prepared. The first document, I understand that was 18 prepared, we can find at Tab 104. It's a PowerPoint 19 presentation that I understand you prepared, Dr. Pollanen? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. LINDA ROTHSTEIN: And, Registrar, 22 032574. 23 And just to lead you a little bit here; am 24 I correct in understanding, Dr. Pollanen, that the purpose 25 of preparing this PowerPoint was to ensure that the
761 reviewers had sufficient background information about the 2 context in Ontario, in relation to Dr. Smith, where he 3 worked and so on that they could approach the examination 4 of individual cases in a reasonably informed way? 5 DR. MICHAEL POLLANEN: Yes. 6 MS. LINDA ROTHSTEIN: All right. So I 7 understand that to actually take one through this 8 PowerPoint takes some time. Can you assist the 9 Commissioner with how long it took you to actually walk 10 the reviewers through this PowerPoint presentation? 11 DR. MICHAEL POLLANEN: I would say 12 approximately an hour. 13 MS. LINDA ROTHSTEIN: Okay. So in much 14 abbreviated form, Dr. Pollanen, can you give the 15 Commissioner a sense of what it was you were trying to 16 communicate to the three (3) reviewers who arrived in 17 Toronto in the first week of December? 18 DR. MICHAEL POLLANEN: Context. 19 Essentially context of how forensic pathology -- pediatric 20 forensic pathology -- was practised. The fact that there 21 were events -- significant events -- that had precipitated 22 the review: the reason for the review; some of the 23 mechanics of how we had gotten to that point in terms of 24 number of cases; the precise content list of the review 25 packages as well as a case breakdown. I also gave them
771 advice or I gave them some boundary conditions about what 2 was not part of the review. 3 And perhaps it would be important to look 4 at one of the slides. It's actually the last group of 5 three (3). 6 MS. LINDA ROTHSTEIN: So that's page 5 of 7 that document, please, Mr. Registrar? Not objectives of 8 the review? 9 DR. MICHAEL POLLANEN: Yes. 10 MS. LINDA ROTHSTEIN: Sorry, it's page 5 11 of that document, Registrar. You've got -- thank you. 12 DR. MICHAEL POLLANEN: So the -- I 13 indicated to the panel that the overall goal was a quality 14 assurance review on methodology and opinion formation. 15 The -- and I've contrasted this to the -- to the recent 16 review of Dr. Heath that some of them had participated in, 17 and I indicated that their judgment of professional 18 competency was really not in the scope of this review. 19 This was not about professional competency 20 and that we felt was more firmly in the jurisdiction of 21 the college. 22 And finally, it was not designed to lay 23 blame on Dr. Smith or anybody else that might be 24 identified in the review process. This was meant to be as 25 an objective exercise as we could make it.
781 MS. LINDA ROTHSTEIN: Turning to the next 2 tab, 105, and, Registrar, we're at 032579. The document 3 is entitled, "Preliminary Observations on Smith Cases for 4 External Review". N equals 35 because you have now having 5 done the internal review created a universe of thirty-five 6 (35) cases that were going to be viewed by your external 7 reviewers, correct? 8 DR. MICHAEL POLLANEN: Correct. 9 MS. LINDA ROTHSTEIN: All right. 10 MS. LINDA ROTHSTEIN: Again, this document 11 was prepared by you, Dr. Pollanen? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. LINDA ROTHSTEIN: And indeed if one 14 looks at it it appears to summarize and -- summarize some 15 of the underlying facts of the case; focus the issues. 16 Were you attempting to influence the 17 reviewers? 18 DR. MICHAEL POLLANEN: No. 19 MS. LINDA ROTHSTEIN: So assist us as to 20 how -- why it was that you created this document and why 21 you believe you didn't do that with this document? 22 DR. MICHAEL POLLANEN: Well, the reviewers 23 had a short period of time to deal with a very large 24 number of issues and I thought it was im -- appropriate, 25 as did the subcommittee, to orient them to some of the
791 main issues that were apparent. 2 Many of these issues are straightforward 3 issues, but some of them do require some familiarity with 4 the case, and on that basis, we thought we should abstract 5 some of those issues. 6 The -- some of my concerns with regard to 7 the shaken baby issue, that we've already indicated, I've 8 highlighted, as well as areas that I thought the reviewers 9 should address in, for example, narrative comments they 10 way -- my wish to make, for example, in the Jenna case 11 relating to issues of timing. 12 So this was meant to be a guide to their 13 work. It was not meant to be determinative. And most of 14 the cases have very little guidance because many of the 15 cases are straightforward, as it were, but in the ca -- in 16 the instance where the cases did have substantive issues, 17 I wanted the reviewers to be aware of those and to deal 18 with them. 19 MS. LINDA ROTHSTEIN: December 8 was the 20 reconciliation meeting day for that first week. 21 As I understand it, that was the 22 terminology used when everyone would get together and 23 discuss their own independent conclusions based on the 24 subset of cases that he or she had examined specifically. 25 DR. MICHAEL POLLANEN: Yes. This was in
801 an -- in an attempt to encapsulate, again, a 2 collaborative view. We did not want the -- any one (1) 3 reviewer essentially to produce a minority report. 4 In other words, if there was -- if one of 5 the reviewers had a view that the other reviewers clearly 6 thought was not relevant or substantiated, we wanted to 7 have a mechanism of identifying that. So the -- this -- 8 the attempt to do that was through this reconciliation 9 meeting where -- where the pathologists sat together, I 10 chaired the meeting, and we had discussions on the matter. 11 MS. LINDA ROTHSTEIN: And minutes were 12 kept? 13 DR. MICHAEL POLLANEN: Yes. 14 MS. LINDA ROTHSTEIN: And we can find 15 those at Tab 106, Commissioner, Document 057040. Indeed, 16 as you've said, Dr. Pollanen, they reflect your presence 17 as chair, except when there were discussions of Sherr -- 18 Sherret's case and Marco's case. 19 DR. MICHAEL POLLANEN: Yes. 20 MS. LINDA ROTHSTEIN: Paulo's case, excuse 21 me. 22 DR. MICHAEL POLLANEN: Yes. 23 MS. LINDA ROTHSTEIN: All right. 24 COMMISSIONER STEPHEN GOUDGE: Can I just 25 ask, was the collection of these three (3) simply a matter
811 of availability, as opposed to another subset of the five 2 (5)? 3 Was there any other reason for these three 4 (3) gathering first? 5 DR. MICHAEL POLLANEN: I believe that 6 these three (3) often work together. So, in other words, 7 Professor Whitwell, Professor Crane, and Professor Milroy 8 are known to each other in the UK and form part of the 9 forensic pathology community together there. So they came 10 together, travelled together. 11 COMMISSIONER STEPHEN GOUDGE: And was that 12 your doing or was that their preference or...? 13 DR. MICHAEL POLLANEN: That was their 14 preference. 15 COMMISSIONER STEPHEN GOUDGE: Yes. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: And do these minutes 19 reflect the sort of key conclusions reached and points 20 made during this reconciliation meeting? 21 DR. MICHAEL POLLANEN: Well, they're not a 22 replacement for the -- the checklist, but it is an attempt 23 to identify consensus views on the issues -- 24 MS. LINDA ROTHSTEIN: All right. 25 DR. MICHAEL POLLANEN: -- and -- and
821 therefore records that. 2 MS. LINDA ROTHSTEIN: Now, Commissioner, I 3 expect that when you hear from the experts, Crane, and 4 Whitwell, and Milroy -- indeed, Mr. Sandler may direct 5 them to some of this documentation, and if not, the issues 6 that are addressed in this documentation will be 7 canvassed. And in -- in an attempt to move things along, 8 I'm not going to ask Dr. Pollanen to work through the very 9 significant forensic pathology issues that are outlined 10 there. 11 Needless to say, they are many and they -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 MS. LINDA ROTHSTEIN: -- require some 14 considerable discussion. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: The second 19 reconcilia -- or rather the second groups of experts, as 20 I understand it, attended the week of December 11 to 15, I 21 understand that Professor Milroy was part of both groups. 22 Is that right? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. LINDA ROTHSTEIN: But for the second 25 week he was joined by Professor Butt and Professor Saukko?
831 DR. MICHAEL POLLANEN: Yes. 2 MS. LINDA ROTHSTEIN: And again, am I 3 correct that the same overview of the Smith Review, the 4 PowerPoint presentation was provided to the reviewers 5 attending during the second week? 6 DR. MICHAEL POLLANEN: Yes. 7 MS. LINDA ROTHSTEIN: And the same 8 document which was entitled, "Preliminary Observations on 9 the Smith Case's for External Review", provided to them in 10 the same orientation process? 11 DR. MICHAEL POLLANEN: Yes. 12 MS. LINDA ROTHSTEIN: All right. Their 13 reconciliation meeting took place, Commissioner, on 14 December 15th, 2006. We have that document, 034, 15 Registrar, 057. 16 And again, Dr. Pollanen, reflects that you 17 chaired the meeting but were not present for the 18 discussions of Jenna and Valin? 19 DR. MICHAEL POLLANEN: Correct. 20 MS. LINDA ROTHSTEIN: Similar process, 21 similar sort of discussion? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. LINDA ROTHSTEIN: And so when the 24 reviewers all left Toronto by the end of December, had 25 their work in fact been completed?
841 DR. MICHAEL POLLANEN: Except for approval 2 of these minutes. That process took longer. 3 MS. LINDA ROTHSTEIN: So they left 4 Toronto, you had the autopsy report forms that they've 5 completed, you prepared minutes, circulated them -- 6 circulated the minutes to all of them, obtained their 7 approval, and then their job was done, so to speak? 8 DR. MICHAEL POLLANEN: Yes. 9 MS. LINDA ROTHSTEIN: Until this 10 Commission of Inquiry suggested that there was further 11 work to be done? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. LINDA ROTHSTEIN: Commissioner, it's 14 time for our morning break. We're moving, more or less 15 ,on schedule I'm happy to say. I don't know whether I'll 16 have to hear from Mr. Sandler as to whether we're in a 17 position to give you the counsel estimates of time they 18 will require for their cross-examination, and you might 19 want to use the break to try and assess those estimates. 20 COMMISSIONER STEPHEN GOUDGE: And you're 21 progressing well enough, we can give ourselves an extra 22 five (5) or ten (10) minutes? 23 MS. LINDA ROTHSTEIN: Sure. 24 COMMISSIONER STEPHEN GOUDGE: Okay. So 25 why don't we break now. It's 11:16. We'll be back in
851 twenty-five (25) minutes. 2 3 --- Upon recessing at 11:16 a.m. 4 --- Upon resuming at 11: 41 a.m. 5 6 COMMISSIONER STEPHEN GOUDGE: Before we 7 begin, Ms. Rothstein, I should say that I have the list of 8 requested times for cross-examination and I can say 9 immediately that counsel have exhibited commendable self- 10 discipline and we can accommodate all the requests within 11 the time available for this panel. That may not always be 12 the case, but it is for this panel. 13 But I do remind counsel to ensure that the 14 time is used to ask questions that will advance the 15 Commissions mandate, and as will not surprise you, I 16 intend to assist to make sure that that happens. 17 Ms. Rothstein...? 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Thank you very much, 21 Commissioner. Tab 108 please, Registrar, 032588. 22 Dr. Pollanen, this is your memo to Dr. 23 McLellan dated January 8th, 2007. Commissioner, it is 24 fifteen (15) pages in length. It covers a wide range of 25 issues, including providing some substantive opinions by
861 Dr. Pollanen with respect to the forensic pathology of 2 certain of the cases that form part of the universe of the 3 Smith Review. 4 In the interest of time, I am going to 5 restrict my examination of Dr. Pollanen on this memo to 6 the process issues, the limits of the review, and the 7 methods of the review. But I am not going to ask for his 8 opinion on the forensic pathology issues. Specifically, 9 Dr. Pollanen as you know will be back, and I expect that 10 Mr. Sandler and others may well want to go back to those 11 substantive forensic pathology issues at that time. 12 Dr. Pollanen, you start your memo by saying 13 that it is part of your job as the Chief Forensic 14 Pathologist for Ontario to provide policy direction; 15 professional direction in the delivery of high quality, 16 effective forensic pathology services to coroners, police, 17 Crown attorneys, lawyers and courts in Ontario and to 18 upgrade the professional and technical knowledge in the 19 field, and so on. 20 And it is in -- with that goal in mind, 21 that you presented these observations following the Smith 22 Review? 23 DR. MICHAEL POLLANEN: Correct, yes. 24 MS. LINDA ROTHSTEIN: So, tell us, Dr. 25 Pollanen, in general terms, what were your observations
871 about the methodology of the Smith Review and any 2 particular concerns you had about that? 3 DR. MICHAEL POLLANEN: I thought, overall, 4 that the review was appropriately executed from a 5 methodological standpoint. And that is given the scope of 6 the review and the boundary conditions of the review, that 7 the methodology was adequate to deal with the issues. 8 MS. LINDA ROTHSTEIN: What about the 9 limits and scope of the review? I think that is something 10 that you discussed at considerable length. If you could 11 turn, Registrar, to page 5 of that document, and you have 12 some very interesting observations about that. 13 Rather than put them to you, I'd be 14 grateful, Dr. Pollanen, if you would express them in your 15 own words to the Commissioner. 16 DR. MICHAEL POLLANEN: When a review is 17 conducted, it's important to understand the overall goal 18 of the review process. And the -- sometimes there is a -- 19 a confusion about what the ultimate goal of the review is. 20 In this case, this was a quality assurance 21 process which, essentially, is a outgrowth of the current 22 quality process scheme that we have in the Office of the 23 Chief Coroner. And the -- this is to be distinguished 24 from, for example, reviews related to professional 25 competency or, indeed, reviews designed to generate second
881 opinions; for example, in a criminal justice process. 2 So the -- this review did not contemplate 3 those issues. This issue was more related to issues such 4 as independent reviewability of the record and whether or 5 not individual diagnoses or forensic conclusions were 6 supported by evidence. 7 MS. LINDA ROTHSTEIN: I note in paragraph 8 25 that you make a comment about the subset of cases that 9 was the subject of review. Could you amplify that, 10 please? 11 DR. MICHAEL POLLANEN: Yes. If you 12 remember back to essentially the first day of evidence, 13 you will remember that in the whole scope of forensic 14 death investigation, the majority of the pathologist's 15 work, and, indeed, the coroner's work, deals with non- 16 criminally suspicious cases. 17 So, in a review of the type that we 18 undertook, we were dealing with a small subset of the 19 total. And that is an important first step in realizing 20 the relevance or the significance of the review results in 21 the greater context of, for example, the mandate of the 22 death investigation system. 23 MS. LINDA ROTHSTEIN: Did you ever 24 determine, or do you know, what the entire universe of 25 cases is with respect to Dr. Smith's work between 1991 and
891 his -- his resignation? 2 DR. MICHAEL POLLANEN: I don't know. That 3 number is available. It would be a very large number; in 4 the several hundreds. 5 MS. LINDA ROTHSTEIN: And we heard Mr. 6 Ortved suggest that it was as much as a thousand (1,000). 7 Would that accord with your sense of it? 8 DR. MICHAEL POLLANEN: It would be in that 9 magnitude, yes. 10 MS. LINDA ROTHSTEIN: Thank you. And what 11 about the use of the audit checklist which you reference 12 at paragraph 26? What limits does that place on the way 13 we look at the results of this review? 14 DR. MICHAEL POLLANEN: Well, the audit 15 checklist, in my view, is actually a very good tool for 16 audit. In other words, it is a -- it identifies certain 17 parameters that can be scored in a binary fashion, yes or 18 no, and we define what constituted a yes or a no. 19 The problem with the checklists that 20 emerges from the fact that it -- it is linked to binary 21 outcomes is that it becomes very easy to select a 22 numerator and a denominator and the -- that issue, 23 essentially, is encompassed by another issue which is an 24 error rate. 25 So if you think, for example, about a ratio
901 with a very small denominator and you have a fairly 2 proportionally large numerator, that would produce a very 3 large error rate. 4 MS. LINDA ROTHSTEIN: Right. 5 DR. MICHAEL POLLANEN: However, if your 6 denominator was bigger -- 7 MS. LINDA ROTHSTEIN: A thousand (1,000). 8 DR. MICHAEL POLLANEN: -- for example, 9 then the error rate would be very small in comparison. 10 So oddly, the checklist provided us a very 11 good objective tool to record information. But because we 12 were -- we were dealing with a relatively small 13 denominator which was not, in fact, representative of Dr. 14 Smith's caseload during the time, it -- it has a tendency 15 for people, who are not familiar with the issues that I've 16 just described, to view Dr. Smith's performance very 17 adversely with regard to an error rate. 18 MS. LINDA ROTHSTEIN: And in your view, 19 potentially, unfairly so? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. LINDA ROTHSTEIN: Paragraph 27, I 22 know, requires some considerable explanation because you 23 make reference to the reviews that have been conducted in 24 England with respect to shaken baby. You touched on this, 25 Dr. Pollanen, but can you give us a little bit of a primer
911 on what the issue was that you were focussed on in that 2 paragraph? 3 DR. MICHAEL POLLANEN: It was predictable 4 to some extent, and it became apparent at the conclusion 5 of the review that many or at least some of the 6 problematic cases were problematic because of growth of 7 knowledge issues in forensic pathology. In other words, 8 that some -- the checklist was not specific enough to 9 differentiate some of those cases where the prevailing 10 view at the time, that was held by the general forensic 11 pathology community, was compatible with Dr. Smith's 12 opinion. 13 So in other words, there were some cases; 14 and this essentially falls into the shaken baby category 15 or the infant head injury category; where in, retrospect, 16 one could draw adverse conclusions related to Dr. Smith in 17 this review the way the instrument was designed, but if 18 you selected any pathologist's cases over the same 19 interval of the same type, they would be susceptible to 20 the same criticisms. 21 So if you think about this in terms of the 22 numerator/denominator, this would be a factor that, 23 relative to Dr. Smith's errors or mistakes if you want to 24 use words like that, that would reduce the numerator. 25 So in other words, in the first instance by
921 increasing the universe of cases, you would increase the 2 denominator and based upon the issue in Point 27, on those 3 considerations you might indeed reduce the numerator. 4 MS. LINDA ROTHSTEIN: And in addition to 5 that, Dr. Pollanen, did it give you any concern about 6 whether a review ought to be conducted more broadly; that 7 is to say beyond the work of Dr. Smith in the area of 8 shaken baby? 9 DR. MICHAEL POLLANEN: Yes. 10 MS. LINDA ROTHSTEIN: And am I right, Dr. 11 Pollanen, that it gave you sufficient concern that on 12 March 13th, 2007, you made a presentation to Crown 13 attorneys on that very issue? 14 DR. MICHAEL POLLANEN: Yes. 15 COMMISSIONER STEPHEN GOUDGE: Can I just 16 ask a question, Dr. Pollanen, about the set of answers 17 you've just given? 18 To what extent was the review process 19 designed to get at an error rate? 20 I appreciate that others looking at it 21 might come to a conclusion that you say for the reasons 22 you've given ought to be discounted somewhat but to what 23 extent was that an objective of the review process as 24 opposed to determining individual cases in which there 25 were errors that would have to be addressed?
931 DR. MICHAEL POLLANEN: It was not an 2 objective of the review process. It -- it became -- 3 COMMISSIONER STEPHEN GOUDGE: "It" being 4 error rate? 5 DR. MICHAEL POLLANEN: Correct. The 6 review process was not designed to essentially give a 7 quantitative result. It was designed to give a checklist 8 result on individual cases. However, the nature of the 9 checklist makes the results easily tabulated -- 10 COMMISSIONER STEPHEN GOUDGE: Prone to 11 error rate calculation. 12 DR. MICHAEL POLLANEN: Correct. And 13 although it was never intended to be used in that manner, 14 some individuals who were looking at the results without 15 the proper context could essentially misinterpret it that 16 way. 17 COMMISSIONER STEPHEN GOUDGE: But for the 18 Chief Commissioner's Office the real issue was were there 19 individual cases that the external review would identify 20 as having serious pathology issues. 21 DR. MICHAEL POLLANEN: Correct. 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: Thank you, 25 Commissioner. And, Dr. Pollanen, with respect to your
941 last comments with respect to the Shaken Baby Syndrome 2 Review, or SBS Review, you've told me that you indeed made 3 a presentation to MAG on March 13th, 2007. 4 Commissioner, we have a document. 032604. 5 I'm not going to pull it up now, Commissioner, because Mr. 6 Sandler and I have discussed it and we think the evidence 7 that Dr. Pollanen has with respect to those concerns and 8 the presentation that he has already made to Crown 9 attorneys is more appropriately addressed after we've 10 heard some more of the forensic evidence on those issues. 11 So we will await Dr. Pollanen's return before we engage 12 him more specifically on that part of -- or on that issue. 13 So, Dr. Pollanen, back to your memo of 14 January the 7th. Can you assist the Commissioner with 15 respect to some of the other key themes that you've 16 identified here, specifically with respect to the scope 17 and limits of the review? 18 DR. MICHAEL POLLANEN: Well, in -- in 19 paragraph 28 I talk about the fact that our review was foc 20 -- focussed on cases, rather than processes. In other 21 words, it was a review conducted at the micro level, 22 rather than the macro level. And that seems to be 23 relatively unimportant given our current context, but it 24 does represent the -- the issue that Dr. Smith worked in 25 the team, The Death Investigation Team.
951 And what we did was identify one (1) member 2 of the team and looked at the critical role of the member, 3 which is the autopsy, rather than a -- a more general view 4 of matters that might impinge upon, for example, the 5 autopsy oversight issues, communication issues; these 6 were really not cont -- contemplated within the -- the 7 scope of our review. 8 MS. LINDA ROTHSTEIN: And specifically, 9 there was no analysis of the coroner's role in the death 10 investigation process? 11 DR. MICHAEL POLLANEN: By the panel, 12 that's correct. 13 MS. LINDA ROTHSTEIN: By the panel. Dr. 14 McLellan, you read Dr. Pollanen's memo identifying that 15 concern. I -- I'm confident that wasn't a new issue for 16 you, but can you tell the Commissioner what, if any, 17 response you developed to that particular concern? 18 DR. BARRY MCLELLAN: Certainly. I think, 19 just to provide a context to that, Dr. Pollanen and I had 20 an opportunity to discuss a number of these matters, both 21 before he wrote his memo of January 8, 2007 and after, and 22 we'll, I assume, this morning have an opportunity to 23 discuss a number of -- of steps that -- that were taken. 24 With respect to the comment about coroner's 25 investigations not being addressed as part of the -- the
961 Smith review, Dr. Pollanen and I felt that there was an 2 opportunity to actually have the coroner's investigations 3 reviewed. So I specifically took the lead and requested 4 that two (2) regional supervising coroners working out of 5 the head office, Dr. Lauwers and Dr. Edwards, specifically 6 review the coroner's investigations and to prepare an 7 analysis and report for me. 8 So I know that there are a number of 9 documents included. I'm not sure if you wish to bring my 10 attention -- 11 MS. LINDA ROTHSTEIN: By all means. 12 DR. BARRY MCLELLAN: -- to any specific -- 13 or do you wish that I actually walk you through? 14 MS. LINDA ROTHSTEIN: Well, Dr. McLellan, 15 I -- I assume that you're referring to the next two (2) 16 documents, at least, in this book of documents, at Tabs 17 109 and 110? 18 DR. BARRY MCLELLAN: Correct. 19 MS. LINDA ROTHSTEIN: Right. Commissioner 20 -- which one would you like to start with, Dr. McLellan? 21 DR. BARRY MCLELLAN: I -- I think it would 22 make more sense to start at Tab 110. 23 MS. LINDA ROTHSTEIN: All right. So, 24 Registrar, we're at 137412, and can you tell the 25 Commissioner about that, please?
971 DR. BARRY MCLELLAN: Certainly. The 2 purpose, goals and objectives are outlined on page 1. 3 The purpose: To review the coroner's death 4 investigation and its possible role on Dr. Smith's 5 examinations and conclusions. So, this is obviously in 6 the context of the larger Smith Review. 7 The specific goals and objectives are 8 outlined. Now, I think it's important to emphasize that I 9 asked Dr. Edwards and Dr. Lauwers to do this, but 10 requested that they actually design what they thought was 11 the appropriate process. I met with them on a few 12 occasions. 13 On the next two (2) pages, you will see 14 that there were -- there was a form that was designed to 15 be followed as they went through various aspects of the 16 death investigation, including the completion of the 17 coroner's warrant, any information that would be available 18 of relevance in the police report, the completion of the 19 coroner's investigation statement and others as noted on 20 the form, leading, ultimately, to a summary which is -- 21 MS. LINDA ROTHSTEIN: Just before we get 22 there -- 23 DR. BARRY MCLELLAN: Mm-hm. 24 MS. LINDA ROTHSTEIN: -- I just want to 25 clarify for the Commissioner, Dr. McLellan, that what we
981 have at Tab 110, 137412, Commissioner, is just the sample 2 form. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 MS. LINDA ROTHSTEIN: We actually have in 5 the database all of the completed forms as well. We've 6 just not included them in the document brief. 7 COMMISSIONER STEPHEN GOUDGE: I may have 8 missed this, Dr. McLellan, but put this in a time frame. 9 When did you create this form, or when did 10 Drs Edwards and Lauwers create it? 11 DR. BARRY MCLELLAN: This was taking place 12 between January and March of this year. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Sorry, Dr. McLellan, 16 I interrupted you as you were about to turn to Tab 109, if 17 I'm not mistaken. 18 DR. BARRY MCLELLAN: Well, certainly, at 19 least to highlight page 3 first, which is on the screen 20 here, which is the -- 21 MS. LINDA ROTHSTEIN: Oh, sorry. 22 DR. BARRY MCLELLAN: -- summary of 23 information. You did indicate that these forms were 24 completed for the individual cases. An example of that is 25 provided at Tab 111. I'm not sure if you wish to draw
991 attention to that, but that's an example of a completed 2 form. 3 And, at the conclusion, I had asked Drs 4 Edwards and Lauwers to provide an overview, a summary, of 5 their conclusions, and that's what's included at Tab 109. 6 MS. LINDA ROTHSTEIN: Just before we get 7 there, Dr. McLellan, am I right in understanding that the 8 manner in which the information was obtained in order to 9 complete these forms was from the paper record that the 10 Coroner's Office maintains? 11 DR. BARRY MCLELLAN: In fact, Dr. Lauwers 12 and Edwards were provided with the same review files -- 13 MS. LINDA ROTHSTEIN: Right. 14 DR. BARRY MCLELLAN: -- that the reviewers 15 -- the external reviewers and internal reviewers would 16 have had. And from that, they obtained paper records to 17 review. 18 MS. LINDA ROTHSTEIN: But they did not 19 conduct any interviews. They did not augment the paper 20 record with other investigation. 21 Is that fair? 22 DR. BARRY MCLELLAN: That's correct. 23 MS. LINDA ROTHSTEIN: Okay. 24 COMMISSIONER STEPHEN GOUDGE: But they did 25 have documents beyond what the external review committee
1001 had? 2 DR. BARRY MCLELLAN: They would have had 3 the same documents that the external review committee had 4 and they would have had the entire file. Now, I can't 5 tell you how different they would have been for the 6 purpose of this review, because I didn't go over the 7 individual files with them, Commissioner. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 DR. BARRY MCLELLAN: The summary is 10 provided at Tab 109. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Registrar, that's 14 137410, please. 15 DR. BARRY MCLELLAN: So, in tabular form, 16 you can see the numbers as they relate to whether 17 sufficient information was provided by the coroner to Dr. 18 Smith; whether the coroner appropriately integrated Dr. 19 Smiths conclusions in the completion of the Investigation 20 Statement; whether significant concerns about the 21 coroner's actions were identified; and whether the 22 identified concerns may have impacted on Dr. Smith's 23 conclusions. 24 Now, although I did indicate that I left 25 the overall review to Drs. Lauwers and Edwards, I did
1011 request that they specifically answer the fourth question. 2 COMMISSIONER STEPHEN GOUDGE: What does 3 "not applicable" mean? 4 DR. BARRY MCLELLAN: It means in certain 5 circumstances -- well, we can go through each of them 6 individually, but they felt that the coroner's 7 investigation was not of any relevance at all to the 8 question that was being put so -- 9 COMMISSIONER STEPHEN GOUDGE: Why wouldn't 10 that give you a "no"? Didn't have any -- I suppose the 11 twenty-three (23) would be cases where there were no 12 concerns and that didn't have any impact? 13 DR. BARRY MCLELLAN: I think that's a fair 14 interpretation, yes. I have discussed this with Drs. 15 Lauwers and Edwards specifically. I didn't put that 16 specific question to them, Commissioner. 17 My greatest concern was in the areas where 18 they had identified concerns, and specifically, I was most 19 interested in Number 4; whether or not they felt -- and 20 again this was their interpretation whether any of the 21 coroner's investigation concerns may have impacted 22 negatively towards Dr. Smith's conclusions, and their 23 opinion was no. 24 I do know that Dr. Edwards and Dr. Lauwers 25 did review files separately but then did meet and go over
1021 the overall results. So, in total, they looked at the 2 same forty-five (45) cases. 3 Concern was expressed that in eleven (11) 4 cases the coroner provided insufficient information and 5 that dealt with the coroner's warrant in most cases. In 6 six (6) cases, the coroner did not appropriately integrate 7 Dr. Smith's conclusions into the completion of the 8 coroner's investigation statement. 9 And then a recommendation arose, as a way 10 to try to address this going forward, and that was that 11 there be direct verbal communication before and after the 12 autopsy between the coroner and the pathologist for each 13 and every non-natural and/or suspicious death requiring 14 autopsy. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: Just pausing there 18 for a moment, Dr. McLellan. I'm not quarrelling with the 19 -- the value of that recommendation standing alone, but 20 isn't it fair to conclude that they wouldn't have known 21 for sure that the requisite verbal communication was 22 absent in any of these cases because they were only 23 looking at the paper review? 24 DR. BARRY MCLELLAN: That's correct. They 25 could only rely on what was recorded, but regardless, this
1031 was not occurring in cases even at the time they conducted 2 their review so that's what I -- that's why I indicated 3 this was a go-forward position. This was a recommendation 4 that was ultimately acted upon. 5 MS. LINDA ROTHSTEIN: So from there -- 6 from what they reviewed they came to the conclusion that 7 historically, based on the paper that they reviewed, there 8 was insufficient verbal communication that required 9 improvement; is that what you're saying? 10 DR. BARRY MCLELLAN: Yes. There was 11 incomplete information provided on Coroner's warrants 12 specifically, recognizing that only so much information 13 can be put onto a warrant. Even in cases where warrants 14 were complete, they felt it was an advantage of having 15 direct verbal communication before and after the autopsy. 16 COMMISSIONER STEPHEN GOUDGE: And was the 17 prior practice of no communication simply accidental or 18 was it driven by any reason? 19 DR. BARRY MCLELLAN: Well, I testified on 20 Monday that it was my own practice, as an investigating 21 coroner, to speak to the pathologist before every autopsy. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. BARRY MCLELLAN: But that was not the 24 norm. That was not an expectation. 25 Now, I did that in uncomplicated natural
1041 death cases. But in many cases, right up until the time 2 of this recommendation, coroners would not communicate 3 with pathologists, even around complex cases including 4 homicides. So this recommendation was meant to apply to a 5 specific group of cases and ultimately led to a memo that, 6 I believe, Ms. Rothstein will take me to. 7 COMMISSIONER STEPHEN GOUDGE: I guess what 8 I was getting at, Dr. McLellan, is that non-communication. 9 Was that deliberate on the part of the coroner? 10 One could theorize that it might be a 11 concern about skewing the pathologist's direction. 12 DR. BARRY MCLELLAN: I'm certainly unaware 13 of that ever being the case. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: All right. That's 17 helpful. If we can go back, Dr. Pollanen, to your memo of 18 January the 8th, 2007, we're at Tab 108, 032588. And if 19 we can turn to page 7 of that document, please, Registrar. 20 You make some observations about the Ontario Pediatric 21 Forensic Pathology Unit which I would like you to address, 22 at least briefly for us, because as I read your memo, Dr. 23 Pollanen, you believe this is also important context for 24 all those who look at the results of this review to bear 25 in mind.
1051 DR. MICHAEL POLLANEN: Yes. Well, I think 2 the -- the main issue in general is that pediatric death 3 investigation and pediatric forensic pathology is evolving 4 and it has been for -- for decades. 5 And it was generally recognized, in the 6 relevant professional communities in the '80s and early 7 '90s, that there were certain challenges with pediatric 8 death investigation and that there was a movement at that 9 time to develop procedures, protocols to enhance death 10 investigation; this was essentially global and that 11 Ontario's response to that was essentially twofold. 12 The first was the creation of the Ontario 13 Pediatric Forensic Pathology Unit at The Hospital for Sick 14 Children. Recognizing that the challenges for pediatric 15 death investigation had, as their major component, 16 pediatric forensic pathology, so that was -- that 17 institution was created, as it were, as part of the policy 18 level response to -- to that issue. 19 The -- the second was the development in 20 1995 of a -- essentially, the first protocol for the 21 investigation of pediatric deaths in the Province of 22 Ontario. 23 MS. LINDA ROTHSTEIN: And let me just 24 pause and underline for everybody which one we're talking 25 about because we've had some discussion, albeit limited,
1061 about this one. 2 You're referring to the protocol for the 3 investigation of sudden and unexpected deaths in children 4 under 2 years of age, which is contained in the coroner's 5 investigation manual, in which you and I and Dr. McLellan 6 spoke of on Monday? 7 DR. MICHAEL POLLANEN: Yes. 8 MS. LINDA ROTHSTEIN: And, Commissioner, 9 for your reference, you will find it in the middle of that 10 manual and the PFP number is 057584. It's at page 351, 11 and it is sometimes referred to as memorandum 631; at 12 least it is in coroner circles, if I'm not mistaken. 13 Is that right, Dr. McLellan? 14 DR. BARRY MCLELLAN: That's correct. 15 MS. LINDA ROTHSTEIN: And so I hear you to 16 be saying -- sorry, Dr. Pollanen, I'll come back to you in 17 a moment -- that this was one of the first protocols of 18 its kind in any jurisdiction. 19 DR. MICHAEL POLLANEN: Yes. 20 MS. LINDA ROTHSTEIN: And to that extent 21 has to be seen as frankly a world leader. 22 DR. MICHAEL POLLANEN: Yes, I would say 23 so. 24 MS. LINDA ROTHSTEIN: Continue, please. 25 DR. MICHAEL POLLANEN: I think the -- just
1071 to talk -- to expand a little bit about the significance 2 of that protocol, it was -- there -- there are a number of 3 interesting things about it. One of them is; it really 4 codifies the team approach to death investigation. 5 So the protocol -- if you examine its 6 appendices you will see -- contains an instrument for 7 recording the features of the death scene which is of use 8 to both the coroner and the police officer who is 9 investigating the case. 10 There is a autopsy guideline, which is in 11 fact -- was in fact written by Dr. Smith, which is 12 essentially applicable today. 13 There was specific advice around ancillary 14 testing using an evidence-based approach, in fact, which 15 included the audit of prior autopsy cases demonstrating 16 the lack of the use of radiology or x-rays in the 17 pediatric case population, and therefore providing policy 18 advice or guidelines to increase the use of, for example, 19 x-rays. 20 So there are -- there are several very 21 important elements, both procedural and conceptual that 22 are found in this document. 23 MS. LINDA ROTHSTEIN: And I take it what 24 you're helping the Commissioner to understand, Dr. 25 Pollanen, is your view that one shouldn't focus on the two
1081 (2) words in the document to understand its importance and 2 its -- well, its importance. 3 DR. MICHAEL POLLANEN: Two (2) words. 4 COMMISSIONER STEPHEN GOUDGE: Which two 5 (2) words? 6 MS. LINDA ROTHSTEIN: The "think dirty" 7 words, Commissioner. 8 DR. MICHAEL POLLANEN: Think dirty. Well 9 I must say that in my view, having read the document over 10 again, the -- nothing changes in the document if that 11 paragraph is removed. 12 That concept does not inform other parts of 13 the con -- conceptual or procedural message that is in the 14 document. And I'll just draw your attention to one (1) 15 aspect. 16 If you look at the evidence-based analysis 17 on the page that's currently on the monitor, where we look 18 at frequency of autopsy, the absence of skeletal x-rays, 19 and the absence of toxicology, the -- the evidence which 20 the protocol is largely based upon, would give as the 21 major advice as due x-rays, not think dirty. 22 And that's the most important point. That 23 the due x-rays provides you the evidence based approach 24 that is necessary to detect the healed fractures which may 25 ultimately be relevant in -- for example, diagnosing child
1091 abuse. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: Dr. Pollanen, if we 5 could go back to your memo of January 8th and, Registrar, 6 I'm going to ask you to flip back again to the Document 7 032588. 8 I -- I appreciate, Dr. Pollanen, that I'm 9 not doing justice to all the observations that you make 10 here, but I do want to focus the Commissioner's attention, 11 at least momentarily, on paragraph 73, which is at page 14 12 of that document. 13 COMMISSIONER STEPHEN GOUDGE: Give me the 14 Tab number again, sorry. 15 MS. LINDA ROTHSTEIN: It's at Tab 108, 16 Commissioner. 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: You say there, Dr. 20 Pollanen, there's a reasonable basis to believe that 21 problems might exist with Dr. Smith's cases prior to 1991. 22 And I take it that is something that you and Dr. McLellan 23 discussed both before you wrote the memo and afterwards? 24 DR. MICHAEL POLLANEN: Yes. 25 MS. LINDA ROTHSTEIN: Okay. And, Dr.
1101 McLellan, I'm going to turn to you and say, What decisions 2 did you make as Chief Coroner in light of that observation 3 by Dr. Pollanen about what, if anything, the Coroner's 4 Office ought to do about the pre-1991 cases? 5 DR. BARRY MCLELLAN: A decision was made 6 to review cases between 1981 and 1991. A process that's 7 ongoing as of today. The cases have been prioritized 8 again through a process guided by the Forensic Services 9 Advisory Committee. 10 In dealing with this particular review, the 11 office has been working closely with the prosecution 12 service. Again, with the goal of identifying the specific 13 cases that should be reviewed first. 14 But with respect to the specific concern, a 15 decision was made to extend the review of specific cases 16 back to 1981. 17 MS. LINDA ROTHSTEIN: And I take it that 18 because you're no longer Chief Coroner, you can't be 19 specific for us about what the -- the actual current 20 status is of that review, or can you be more specific? 21 DR. BARRY MCLELLAN: I happen to know that 22 one (1) case has in fact been reviewed at this time. I 23 know that one (1) other case is in the process of being 24 reviewed. When I say that, materials are being collected. 25 Beyond that, I do not know.
1111 MS. LINDA ROTHSTEIN: Okay. Dr. Pollanen, 2 do you have anything to add about the status of that 3 process for the Commissioner? 4 DR. MICHAEL POLLANEN: The only other 5 detail is that the decision was taken for the review to be 6 limited to those people that were convicted, the cases 7 that re -- resulted in conviction. And where the person 8 wishes to have a review conducted. 9 So there is a -- a separate process that is 10 ongoing right now to identify those individuals. So in 11 addition to the two (2) cases which have already been 12 identified, that Dr. McLellan spoke about, there is a 13 process to identify additional cases and have those cases 14 reviewed. 15 MS. LINDA ROTHSTEIN: Okay. Can we go 16 back to page 7 -- 17 COMMISSIONER STEPHEN GOUDGE: Just before 18 you leave that -- 19 MS. LINDA ROTHSTEIN: Sorry. 20 COMMISSIONER STEPHEN GOUDGE: -- is it 21 easy to articulate, Dr. Pollanen, what in paragraph 73 you 22 meant by reasonable basis? 23 DR. MICHAEL POLLANEN: Well simply -- 24 COMMISSIONER STEPHEN GOUDGE: I guess what 25 I'm getting at, is that anything more than the review that
1121 had taken place of the 1991 to the 2001 cases? 2 DR. MICHAEL POLLANEN: No, other then we 3 had received correspondence from individuals in that time 4 frame requesting for review. 5 COMMISSIONER STEPHEN GOUDGE: Did you 6 receive correspondence during the years 1981 to 1991? 7 DR. MICHAEL POLLANEN: No, as a -- as a 8 result of this review. 9 COMMISSIONER STEPHEN GOUDGE: 10 Correspondence from people saying, Dr. Smith also was 11 involved in the following case. 12 DR. MICHAEL POLLANEN: And please review 13 this case. 14 COMMISSIONER STEPHEN GOUDGE: I see. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: One other aspect of 18 this lengthy memo that I think we do have some time to 19 talk about, Dr. Pollanen, is at paragraph 35. That's at 20 page 7 of the document, Registrar. 21 Your observation that the results of the 22 review are at least partially explained by both policy- 23 level decisions and educational deficiencies in forensic 24 pathology. 25 Can you assist the Commissioner with that,
1131 please? 2 DR. MICHAEL POLLANEN: Well, I then go on 3 to say that this is probably an oversimplification. 4 MS. LINDA ROTHSTEIN: I -- you do. 5 DR. MICHAEL POLLANEN: And -- and that is 6 aptly so, given the fact that we are currently in a public 7 inquiry. But for the purposes of -- of this memo, I can 8 tell you that what I meant to communicate was the 9 following. 10 That it became apparent in the reviews that 11 were undertaken that there were knowledge-based 12 deficiencies in many of the cases that we examined. And 13 those, no doubt, contributed to some of the errors. 14 And the other -- and those issues relate to 15 education, specific training, certification. The other 16 broad area includes policy decisions. And what I'm 17 specifically speaking of there is heralding back to 18 something we've already talked about, which is pediatric 19 forensic pathology. 20 And if you are designing a system or -- or 21 a means to provide service for pediatric forensic 22 pathology, there are two (2), sort of, natural approaches. 23 One is through the pediatric approach, and the other is 24 through the forensic approach. 25 Now we, in fact, talked about a way of
1141 hybridizing the two (2) with -- and the specific mechanism 2 would be like a double-doctoring process. But leaving 3 that aside for a moment, it was -- it's quite clear, 4 historically, that the -- the policy level approach was to 5 go along the pediatric line as opposed to the forensic 6 line. 7 COMMISSIONER STEPHEN GOUDGE: From 1991? 8 DR. MICHAEL POLLANEN: Correct. The -- 9 the creation of the Ontario Pediatric Forensic Pathology 10 Unit, and its situation within a pediatric teaching 11 hospital, was by design. And it was by design related to 12 capitalizing on the strengths that are present in a 13 pediatric hospital. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Dr. McLellan, you've 17 told us already that you discussed, both before and after 18 its creation, the points in this memo with Dr. Pollanen. 19 Did you bring it forward to any of the 20 other members of your team or to any of the committees 21 that you deal with in order for them to formally consider 22 the observations that Dr. Pollanen has made here? 23 DR. BARRY MCLELLAN: A number of the 24 observations and, in fact, some that we have not addressed 25 yet today, were brought forward to a meeting of the
1151 Forensic Services Advisory Committee after the 2 announcement of the results on April 19, 2007. 3 MS. LINDA ROTHSTEIN: Right. And, 4 Commissioner, we will get you the tab for that in a 5 moment, but that does take us, I think, Dr. McLellan, in 6 some of the time remaining, to your public announcement of 7 the review of criminally suspicious and homicide cases 8 where Dr. Charles Smith conducted autopsies or provided 9 opinions. 10 Commissioner, you will find it at Tab 113, 11 as will you, Dr. McLellan; 058378. Again, my apologies, 12 Dr. McLellan, we -- I can't, at least in my questions, do 13 it justice, but I did want to, in the time remaining, give 14 you an opportunity to help the Commissioner to understand 15 the lessons learned that you describe on page 5 of that 16 document, Registrar. 17 DR. BARRY MCLELLAN: And -- 18 MS. LINDA ROTHSTEIN: And, further, on 19 page 6. 20 DR. BARRY MCLELLAN: And I certainly will 21 go through those lessons learned. It -- it may be 22 appropriate, Ms. Rothstein, if you would agree, that I 23 actually back up and address the final two (2) paragraphs 24 on page 4 -- 25 MS. LINDA ROTHSTEIN: Sure.
1161 DR. BARRY MCLELLAN: -- first and that 2 prior to getting to the lessons learned at the time of the 3 press conference and in the backgrounder document, I did 4 provide some contextual information for the review. 5 The first was that in two (2) of the cases, 6 the reviewers noted that the opinions that were reached by 7 Dr. Smith were not inconsistent with the body of knowledge 8 available at the time, and that was specifically with 9 respect to pediatric head injury. 10 So, although the reviewers did disagree 11 with Dr. Smith's opinion, they felt that his conclusions 12 were, in fact, consistent with what other pathologists and 13 medical experts may well have concluded at the same time. 14 And then in providing context -- 15 MS. LINDA ROTHSTEIN: So just stopping 16 there for a moment. It may not be fair to characterize it 17 in some simplistic way as twenty (20) cases where there 18 were errors when those same differing interpretations 19 would have been made by all or many reasonable 20 practitioners at the time; that's your point? 21 DR. BARRY MCLELLAN: Correct. 22 MS. LINDA ROTHSTEIN: Okay. 23 DR. BARRY MCLELLAN: And, furthermore, in 24 the final paragraph on page 4, I addressed the fact that 25 Dr. Smith was conducting his work as one (1) member of a
1171 larger death investigation team -- this includes coroners, 2 police, other forensic experts -- and addressed concerns 3 that we talked about before the break where Dr. Smith 4 frequently presented his findings and opinions at meetings 5 and rounds, both at The Hospital for Sick Children and at 6 the Coroner's Office. 7 As well, that in a number of the cases that 8 other pathologists may well have reviewed and audited Dr. 9 Smith's work and in certain cases where we know that 10 expert testimony was given, defence experts did not appear 11 to have recognized concerns that were brought forward by 12 the completion of the review. 13 I can then move on to lessons learned, Ms. 14 Rothstein? 15 MS. LINDA ROTHSTEIN: Please. 16 DR. BARRY MCLELLAN: These are addressed 17 on the following two (2) pages of the backgrounder 18 document. The first is to draw attention again to the 19 memo that you just took Dr. Pollanen through; the protocol 20 that was developed to follow when investigating pediatric 21 deaths. That was a very important quality assurance 22 measure at the time. The protocol, at that time, focussed 23 on deaths under the age of two (2) years. 24 There has been some subsequent improvements 25 made to the protocol, and it now is applicable to all
1181 child deaths under the age of five (5) years. When I say 2 "all child deaths," we did talk about an example of an 3 exception -- motor vehicle crash death -- but to all 4 sudden unexpected deaths in other circumstances. 5 The second was to outline two (2) review 6 committees that exist at the office of the Chief Coroner. 7 We've spoken about both. One (1) is the Death Under Five 8 Committee and the other is The Paediatric Death Review 9 Committee which do add value and provide reviews of some 10 of the most complex pediatric deaths. 11 The third is that through the period of the 12 -- the early 2000 period more appropriately -- a decision 13 was made that I was involved in where autopsies on 14 children under the age of five (5) years are centralized 15 in one (1) of four (4) centres: London, Ottawa, Hamilton, 16 and Toronto. Prior to that, they were done in a number of 17 different centres. Recognizing that these require special 18 expertise and the assistance of a larger team, a decision 19 was made to have them centralized in the four (4) centres. 20 The fourth point is that all autopsies on 21 criminally suspicious homicide and cases going to inquest 22 undergo a standardized audit process. Earlier in evidence 23 Dr. Pollanen outlined that this began in 1995. It, 24 subsequently, has undergone a number of improvements and 25 also in keeping with evidence that Dr. Pollanen gave
1191 earlier, the current process is intended to ensure that 2 all important examinations have been performed; that the 3 facts arising from these examinations and conclusions 4 reached are logical and clearly supported by the materials 5 available for any subsequent independent review. 6 On the following page, I outlined the 7 guidelines that have been prepared for autopsies on all 8 criminally suspicious and homicide cases; Dr. Pollanen has 9 addressed those already, as well as the addition now of a 10 pediatric module. 11 We've also spoken about the second bullet 12 point here; the guidelines that have been produced for 13 coroners focussing on scene investigation, documentation, 14 communication. 15 In this bullet point, I address the 16 specific findings of Drs. Lauwers and Edwards; that in 17 eleven (11) of the forty-five (45) cases reviewed, the 18 warrants were felt to be wanting and in an effort -- 19 MS. LINDA ROTHSTEIN: Sorry, sir. What 20 does that mean "the warrants were felt to be wanting..."? 21 DR. BARRY MCLELLAN: They -- they were 22 completed with less information than what we would expect 23 now based on the guidelines. 24 MS. LINDA ROTHSTEIN: All right. 25 DR. BARRY MCLELLAN: And that, again, the
1201 feeling of Dr. Lauwers and Edwards was that in the cases 2 that were reviewed, the deficiencies did not impact on the 3 conclusions reached by Dr. Smith. 4 But in going forward, recognizing that it's 5 very important that there be optimal communication between 6 coroners and pathologists, it is now a policy that there 7 is direct telephone or in-person communication between the 8 coroner and pathologist. And this goes beyond the 9 recommendation of Drs Lauwers and Edwards, and that this 10 applies to every criminally suspicious and homicide case, 11 but also all deaths under the age of five (5) years. 12 MS. LINDA ROTHSTEIN: Can I just stop 13 there for a moment and ask, Dr. McLellan, if the policy 14 goes as far as to direct coroners, not only to have the 15 telephone communication, but document the fact of it or 16 the information conveyed? 17 DR. BARRY MCLELLAN: It -- it does not, 18 but certainly the expectation is that the communication 19 takes place and this memo was sent out in late April of 20 this year. 21 MS. LINDA ROTHSTEIN: All right. 22 DR. BARRY MCLELLAN: A special course has 23 been developed. It now has been held on two (2) 24 occasions, focussing on expert testimony for pathology 25 experts, emphasising the importance of balanced and fair
1211 testimony. 2 This is a two (2) day course. It includes 3 mock-examination and cross-examination and at the time of 4 this memo, it indicated the course would be offered again. 5 It has. It's been offered twice and has been very well- 6 received, not only by the pathologists, by -- but the -- 7 but by those who are teaching the course, including both 8 Crown and defence counsel. 9 We've also spoken about the early -- about 10 the importance of case conferences, and specifically, 11 early case conferences. These case conferences ensure 12 that all members of the death investigation team know what 13 has been found at the time of autopsy, what outstanding 14 investigations or test results are necessary and have 15 proven to be a valuable tool for optimizing communication 16 following the autopsy. 17 MS. LINDA ROTHSTEIN: And then I note, Dr. 18 McLellan, at the top of the next page, page 7, you make 19 reference to the 1981 to '91 review that both you and Dr. 20 Pollanen have just explained to the Commissioner. 21 DR. BARRY MCLELLAN: That's correct. 22 MS. LINDA ROTHSTEIN: All right. Dr. 23 McLellan, if you would turn up Tab Q, I believe I have 24 found there the Forensic Services Advisory Committee 25 meeting in which Dr. Pollanen's January 8th, 2007 memo was
1221 discussed together with many of the other items that 2 you've just reviewed for the Commissioner. 3 And, Registrar, that's 583 -- or sorry, 4 058373. Have we found that? So it's a -- it's a memo, 5 Commissioner, or rather the minutes of the Forensic 6 Services Advisory Committee meeting held on June the 22nd, 7 2007. 8 Dr. McLellan, do you want to just assist 9 the Commissioner with the -- the agenda for that meeting 10 and focussed particularly on -- on the way that that 11 committee saw itself as interacting with the outcome of 12 the Smith Review -- 13 COMMISSIONER STEPHEN GOUDGE: Sorry to 14 interrupt, but -- 15 MS. LINDA ROTHSTEIN: Sure. 16 COMMISSIONER STEPHEN GOUDGE: -- can I 17 just ask a question before we move away from the 18 announcement that we've just been dealing with back in 19 April. 20 Dr. McLellan, am I right that one of the 21 main reasons for the time frame between January when you 22 get Dr. Pollanen's review results really, and the 23 announcement is to complete the coroner's review? 24 Is that what was going on in that time 25 frame of three (3) months?
1231 DR. BARRY MCLELLAN: There were a number 2 of things going on. That was one (1), we were also -- 3 COMMISSIONER STEPHEN GOUDGE: And I take 4 it you wanted to have that completed before the review 5 results were announced? 6 DR. BARRY MCLELLAN: Correct. But there 7 were other things taking place as well. This was an 8 opportunity to determine how we were going to communicate 9 with families around the results. 10 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 11 DR. BARRY MCLELLAN: I didn't want to be 12 going public with information without a clear strategy of 13 how we were going to contact the family members -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. BARRY MCLELLAN: -- ensure that they 16 knew how they were going to receive the reports. That 17 took many weeks. As well, when the review was completed - 18 - when the external reviewers completed their work, there 19 still needed to be some time and effort determining 20 exactly how the results were to be tabulated -- presented. 21 I went through an analysis. Dr. Pollanen 22 went through an analysis. And then there was a fair bit 23 of time and effort going into exactly what should be 24 communicated at the time, and how it should be 25 communicated.
1241 And that included privacy issues. A lot of 2 questions were brought forward about how much information 3 could be given about individual cases. That's what was 4 taking place in that period of time. 5 COMMISSIONER STEPHEN GOUDGE: Thank you. 6 Sorry, counsel. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: That's fine, 10 Commissioner. So we're at Tab Q, 058373. 11 Dr. McLellan, you met with your Forensic 12 Services Advisory Committee in June and walked through 13 many of the things you've taken us through. What was your 14 purpose in bringing all of this back to the Forensic 15 Services Advisory Committee? 16 DR. BARRY MCLELLAN: Well, there were -- 17 there were a few purposes. One (1) of the things that did 18 not take place before the April announcement was the 19 creation of a report -- a summary report. 20 Which was, in both Dr. Pollanen and my 21 opinion, important to bring together a lot of the types of 22 observations he'd raised in his January memo and to talk 23 about a number of important steps that were taking place. 24 I felt it was important -- because of the 25 expectation in the minds of the public that there would be
1251 some announcement made -- to focus on the announcement, 2 and not the creation of a report. 3 It wasn't long after my announcement that a 4 public inquiry was called. And at that point, the 5 question was, what does the value add of generating a 6 report when many of these issues are documented in other - 7 - many of the documents that we've come to already today? 8 So the Forensic Services Advisory Committee 9 had not yet had a chance to hear some of the observations 10 that had been made; some of the strengths and weaknesses 11 that we felt were appropriate to be brought to the 12 Committee's attention around the review and to talk about 13 ongoing steps. 14 So, from the perspective of the Forensic 15 Services Advisory Committee, they knew what the results 16 were going to be in advance, but not a lot of the 17 information that's included in these minutes. 18 So, it was an opportunity now post- 19 announcement. Also, in the light of the upcoming public 20 inquiry, to inform the committee about many of the 21 observations we had made and to inform them about many of 22 the steps that were taking place. 23 So in these minutes -- and the meeting was 24 really almost exclusively focussed on that issue -- Dr. 25 Pollanen and I both presented to the committee. So
1261 there's an overview again, to provide a context, and then 2 a focus on, what I refer to on page 3, Ms. Rothstein, as a 3 number of important points arising from the review. 4 The first of which is that the review 5 focussed on the work of Dr. Smith, and was not designed to 6 assess The, overall, Death Investigation Team; the 7 question that the Commissioner put to Dr. Pollanen, just a 8 few minutes ago. 9 And, again, the context in which Dr. Smith 10 was working and that many of these have been addressed in 11 the background or document, and were anticipating, as 12 noted in the minutes, that many of these considerations 13 will be expl -- explored through this current Inquiry. 14 Now, from a methodological point of view, 15 there was no control group to compare the work of Dr. 16 Smith to. Now, in -- in raising a number of the points 17 that I'm going to go through, Dr. Pollanen and I have both 18 conducted research before. And it's not unusual, when 19 you're publishing a paper, to, in the discussion section, 20 address some potential weaknesses of the study. 21 This is, in fact, commonplace and expected 22 that authors would, in fact, do so. So, if there's some 23 methodological concerns, you raise them so that others 24 know how to interpret the information that you're 25 presenting.
1271 So here I addressed the -- the fact that 2 there was no control group, but, quite frankly, we 3 couldn't have determined an appropriate control group 4 because of the sort of review we were doing. 5 As well, we identified the fact that there 6 were some forms of bias that were built into the review. 7 One (1) was a selection bias. The most difficult cases 8 were selected. This was not a review of a thousand 9 (1,000) of Dr. Smith's cases. 10 And that in a number of these cases, 11 concerns had already been expressed. And, so, in some 12 respect, there's something we refer to as a confirmation 13 basis bias; that the review confirmed what had already 14 been brought to our attention. 15 Then I went through and discussed the issue 16 of the checklist and why the checklist wa -- was used and 17 that from the weakness side of the analysis, it somewhat 18 restricted the opinions. It wasn't a large narrative that 19 was provided on each case. On the other hand, it did 20 allow us to complete what was originally announced in a 21 fairly timely fashion. 22 The issue of the cases of head injury, I'd 23 already addressed earlier. And going on to page 4 -- 24 MS. LINDA ROTHSTEIN: Page 4, please, 25 Registrar.
1281 DR. BARRY MCLELLAN: In the first 2 paragraph, Dr. Pollanen and I both addressed at the 3 meeting that although these were important points -- the 4 sort of points we would raise if we were publishing a 5 paper or generating a report -- the review, in fact, was 6 not designed to identify systemic issues, and that the 7 questions to be addressed -- the three (3) questions, in 8 the setting of the public concern and in the interest of 9 maintaining public confidence, were focussed around the 10 work of Dr. Smith. 11 And in this context, Dr. Pollanen and I 12 presented, and all agreed, that the review was properly 13 executed and did appropriately identify the number of 14 cases of concern. 15 Now, the remainder of the meeting focussed 16 on issues around the 1981 to '91 review. The -- one (1) 17 thing that -- one (1) item that is outstanding -- there -- 18 there was a concern raised by Mr. Lockyer here about the 19 appropriateness of restricting that further review to 20 cases where individuals did, in fact, at this stage, still 21 assert their innocence. 22 It was agreed at this meeting that that 23 should still be the original focus, but it did not mean at 24 some time in future that that could not be revisited. 25 And I think those are the important points,
1291 Ms. Rothstein, that I feel are in the minutes. 2 MS. LINDA ROTHSTEIN: Thank you so much, 3 Dr. McLellan. Dr. McLellan, you're not returning -- Dr. 4 Pollanen, you are. So anything that I've left out, I know 5 Mr. Sandler has made note of and will ask you. 6 I really only have a couple of questions 7 for you in the time remaining. Dr. McLellan, you've -- 8 you've helped, I think -- not enough time, of course, but 9 to at least give the Commissioner some sense of the dozens 10 of decisions that you and others had to make with respect 11 to the concerns that had been raised about Dr. Smith. 12 You have told us quite candidly that you 13 first learned of them in early 2001. I'm wondering 14 whether, looking back, there are any decisions that you 15 would make differently? 16 DR. BARRY MCLELLAN: I would certainly, 17 not at the time I was making announcements, set time lines 18 that I couldn't deliver on. And -- and I don't mean that 19 to -- to be amusing. I -- There's an expectation in the 20 minds of the public that when you say you're going to come 21 back with results in a year that you, in fact, do so. 22 Now, I can tell you that one of the 23 benefits of having the Forensic Services Advisory 24 Committee -- and there were many -- but one was that all 25 of the committee members representing many different
1301 constituents were aware of how much work was being done. 2 And whenever there was a question coming forward about, 3 you know, why is this taking long than -- longer than 4 twelve (12) minutes many of those committee members, in 5 fact, addressed the issues with their own constituents, so 6 there wasn't a lot of pressure. 7 But I still think that the time limits, the 8 -- the time frame estimates were problematic, and I would 9 not do that again. 10 One of the other concerns I have, in that 11 regard, is that in setting time limits and -- and the 12 approximately twelve (12) months, I put a lot of stress on 13 our own office and many who were assisting us with this 14 review. 15 The subcommittee worked extremely hard 16 throughout this period of time. We didn't have much 17 additional resource added to the office, and it's already 18 a very busy office, so this was a very time consuming and 19 energy consuming process and trying to compress it into 20 the time frame that it was compressed into, I think, 21 stressed our system; people were working very hard. 22 I think the only other issue, and I've had 23 a chance to reflect on this, obviously, and think back 24 about the process and how it was developed, the only other 25 thing I would likely have done differently would be to
1311 have generated the report that I discussed here today 2 before going forward with the announcement. 3 Now, that's a balancing act because there's 4 an expectation for a public announcement, but I think that 5 that would have ultimately been of assistance. I couldn't 6 forecast that my announcement was going to lead into a 7 public inquiry, but on the other hand, it would probably 8 have been appropriate to have put a lot of the information 9 that I addressed here in the latter part of my -- my 10 testimony, examination-in-chief, to have it in the form of 11 a report first. 12 Certainly, Dr. Pollanen and I both felt 13 ourselves, and others in the office did as well, that 14 there was no real value in generating that in the context 15 of the inquiry. 16 Otherwise, in retrospect, I can't think of 17 anything I would have done differently. 18 MS. LINDA ROTHSTEIN: All right. And then 19 finally, Dr. McLellan, I know that the Commissioner's 20 listened carefully to you describe all the changes that 21 you were responsible for making, part in response to the 22 concerns that were addressed and raised with respect to 23 Dr. Smith, but if you were still Chief Coroner of Ontario, 24 what would be your wish lis -- what -- what would be on 25 your wish list for -- for that office?
1321 DR. BARRY MCLELLAN: Well, I'm going to 2 start with a new physical plant, and I can indicate that 3 when I was the Deputy Chief Coroner of Forensic Services, 4 I started a process then which included having an 5 independent architecture firm come in and do an analysis 6 of the building, quite frankly, anticipating a result 7 which would be that we need a new one. 8 Steps are now in place to get a new 9 physical plant, but that is very important. The building 10 is now more than 30 years old. It's too small for the 11 work that's being done. It's making it very difficult to 12 do high quality work, and a new physical plant is very 13 important. 14 Now, when I took over as Chief Coroner, and 15 when I was acting Chief Coroner, it was my opinion that 16 the overall office was under-resourced. Now, I say that 17 in the context of understanding that there's only so much 18 money available to -- to government, so I -- I do 19 appreciate that. 20 On the other hand, I've spent quite a lot 21 of my time and energy having fees increased for coroners, 22 for pathologists, for those who are involved in body 23 removal for the institutions who were conducting 24 autopsies; salaries, which we've identified as a problem 25 which have gone up but in my estimation need to go up
1331 more. 2 I also believe that there should be more 3 people doing work and that will require business cases. 4 I expect at some point you will have 5 information which will show how much our budget has gone 6 up in the past five (5) years. And it has gone up 7 substantially so differences have been made. 8 But we've heard about some positions that 9 got lost many years ago and I think with appropriate 10 business cases some of those positions should be put back 11 into place, and that there's a need for more resources for 12 the important work that needs to be done. 13 We've talked about education. And 14 education is very important for all members of the Death 15 Investigation Team. We have annual courses. We have some 16 special courses such as the forensic services -- such as 17 the expert committee -- Expert Witness Course. 18 I think that that educational budget could 19 be even greater. I think there's more opportunities to 20 educate than we have the resources for and so I would 21 think that a larger education budget would also be very 22 important. 23 And something that was identified on Day 1 24 here is the fact that the Coroner's Act does not include 25 sections that refer to a Chief Forensic Pathologist, quite
1341 frankly to a pathologist at all. 2 Now, I'll give my opinion here; that I 3 think that Dr. Pollanen and I have an excellent working 4 relationship. I think that in my role as Chief Coroner 5 and Dr. Pollanen's roles as Medical Director, as Chief 6 Forensic Pathologist, that we worked well together. 7 But having -- that should not always be 8 dependent upon two (2) people who work together well. And 9 that doesn't mean it's not going to occur in future, but 10 having that more in legislation, with respect to the role 11 of the Chief Forensic Pathologist, with respect to more 12 codified practice about how things are being done, I think 13 would only be of assistance to others, and -- and quite 14 frankly not only those who are working in the system but 15 those who are trying to interpret how work is being done. 16 So I see advantages to having changes to 17 legislation and to having more codified practice for 18 coroners and pathologists, so it's -- it's clear. That 19 will include the oversight mechanisms. 20 I believe as well that there have been many 21 improvements to the quality of work being done by 22 coroners, pathologists, and other members of The Death 23 Investigation Team; more protocols are in place. But I 24 think that there's more opportunities likely in future and 25 some recommendations I'm sure will come from this Inquiry.
1351 So from a wish list perspective those are 2 the sorts of things I would identify. And I just realized 3 I -- I did give my opinion with respect to Dr. Pollanen, 4 my working relationship. I'm not sure whether or not 5 that's something that should be explored by the other half 6 of this equation but the -- I -- I think that's probably-- 7 MS. LINDA ROTHSTEIN: I'm sure we'll hear 8 about it if need be. 9 Commissioner, did you have any questions 10 arising from that? 11 COMMISSIONER STEPHEN GOUDGE: I'm 12 grateful, Dr. McLellan, for your evidence and you will be 13 cross-examined I know, but as we go forward I would 14 welcome your thoughts on any particularized systemic 15 advancements we can make as a result of what we learn of 16 the events between 1991 and 2001. 17 MS. LINDA ROTHSTEIN: Commissioner, tha -- 18 COMMISSIONER STEPHEN GOUDGE: Thank you. 19 MS. LINDA ROTHSTEIN: Commissioner, that 20 completes my examination. 21 COMMISSIONER STEPHEN GOUDGE: Okay. We 22 will break for lunch now. We will return at ten (10) past 23 2:00 and we'll commence, Mr. Gover with you if that's 24 satisfactory. 25 And over the course of the lunch hour, Mr.
1361 Centa I think is going to distribute a schedule, to which 2 I will hold you all as pleasantly as I can, with timelines 3 on them so that we'll accomplish our objective of 4 completing within the times you've requested. 2:10. 5 6 --- Upon recessing at 12:55 p.m. 7 --- Upon resuming at 2:08 p.m. 8 9 THE REGISTRAR: All rise. Please be 10 seated. 11 COMMISSIONER STEPHEN GOUDGE: Yes, Mr. 12 Gover...? 13 14 CROSS-EXAMINATION BY MR. BRIAN GOVER: 15 MR. BRIAN GOVER: Thank you. Mr. 16 Commissioner. Gentlemen, I have five (5) areas to canvas 17 with you in the next twenty (20) minutes or so, and I'm 18 going to start and finish with money and other resources. 19 Now, the first area involves the historical 20 situation with forensic pathology services in Ontario. 21 And, perhaps, I'll ask that Slide Number 8 be projected, 22 Mr. Registrar. And this, we've heard, depicts the 23 reporting structure for the pre-1993 period. 24 Dr. Pollanen, my first question is for you 25 and it's this: Can you comment on the resourcing of
1371 forensic pathology services since the 1970's? 2 DR. MICHAEL POLLANEN: I don't have 3 firsthand knowledge of that information. I -- the -- my 4 knowledge is limited to the fact that the Forensic 5 Pathology Branch, as it was then called, was a separate 6 branch of government reporting to the Ministry of the 7 Solicitor General at that time. But in terms of budget 8 and how money was -- flowed through the Ministry to the 9 Forensic Pathology Branch, I have no direct knowledge of 10 that. 11 MR. BRIAN GOVER: Right. And are you able 12 though to comment on the question of whether full-time 13 equivalents, that's person years, have been reduced in 14 forensic pathology service in Ontario? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. BRIAN GOVER: Can you elaborate on 17 that, please? 18 DR. MICHAEL POLLANEN: In the initial 19 staffing of the Forensic Pathology Branch, there was 20 provision for what we now call the Chief Forensic 21 Pathologist which was then called the Provincial Forensic 22 Pathologist. 23 There was a deputy for that position, as 24 well, so a deputy for the Provincial Forensic Pathologist. 25 There was contemplated a group of fee-for-
1381 service pathologists that would provide service. That was 2 funded through the Coroner's Office essentially, and then 3 there was core staff which were divided up into 4 administrative and technical. 5 The technical staff included a full-time 6 laboratory technician, a histotechnologist, a full-time 7 photographer, and a full-time radiologist or radiographer, 8 and that really formed the -- the basic complement of the 9 -- of the technical staff in addition to autopsy room 10 personnel which assisted the pathologist in the daily 11 performance of autopsies. 12 There has been a progressive decline in 13 full-time equivalents in those areas such that we no 14 longer have either -- any of those three (3) positions. 15 So we -- we do not have a photographer, a radiographer, or 16 a histotechnologist. And what we have done to replace 17 those services is gone to a hourly wage-type casual 18 employment situation except for photography which now has 19 essentially been provided by police agencies who are in 20 attendance at the post-mortem. 21 COMMISSIONER STEPHEN GOUDGE: Was their a 22 deputy originally? 23 DR. MICHAEL POLLANEN: There was, yes. 24 25 CONTINUED BY MR. BRIAN GOVER:
1391 MR. BRIAN GOVER: When were those full 2 time equivalents or positions lost? 3 DR. MICHAEL POLLANEN: I believe they were 4 lost at around the time of the transition or the 5 integration of the Forensic Pathology branch into the 6 Office of the Chief Coroner. Around -- 7 COMMISSIONER STEPHEN GOUDGE: Remind me 8 when that was? 9 DR. MICHAEL POLLANEN: That was at -- in 10 the mid '90s. Now there was -- there was further detail 11 surrounding that, and I'm not aware of all the forces that 12 were in play, that resulted in loss of those positions, 13 but it was, at least correlated with that integration. 14 15 CONTINUED BY MR. BRIAN GOVER: 16 MR. BRIAN GOVER: Do you understand that 17 constraints imposed by governments, and -- and 18 particularly the -- the Rae Government and then the Harris 19 Government played a role in the reduction of those full 20 time equivalents? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. BRIAN GOVER: Should we attach any 23 significance of the loss of this technical staffing 24 compliment? 25 DR. MICHAEL POLLANEN: Yes.
1401 MR. BRIAN GOVER: What is that? 2 DR. MICHAEL POLLANEN: It had two (2) 3 major consequences. The first is that it im -- it 4 impinges or it impairs service delivery in performing 5 autopsies. The second, and this is probably more 6 important from a future planning point of view, is that 7 without those resources, you -- your growth is severely 8 inhibited. 9 And if you look at histol -- histology, 10 which we've already talked about as one of the important 11 ancillary tests -- you will find that in the history of 12 pathology has included the development of additional 13 ancillary tests in histology. 14 Now with our lack of capacity in providing 15 basic histology, that has necessarily implied our lack of 16 ability to grow and develop in providing additional 17 histological tests. This has resulted in reduced use of 18 such tests, and also outsourcing when required. So it has 19 -- it's had a primary and a secondary effect, those loss 20 of resources. 21 MR. BRIAN GOVER: Now, the second area 22 takes me back to you, Dr. Pollanen, and it has to do with 23 the relationship of the Chief Forensic Pathologist with 24 the regional forensic pathology units. And on Monday you 25 described the relationship as collaborative and
1411 professional. 2 Can -- can you explain how that works in 3 practice; how you perform your role as Chief Forensic 4 Pathologist in working with those who work in the regional 5 units? 6 DR. MICHAEL POLLANEN: My interaction 7 essentially is through the quality process scheme that 8 we've developed. So that means that autopsy reports 9 produced in many of the regional units will come to our 10 office for peer review. That is my -- my primary official 11 contact. 12 And then I have contact with the regional 13 forensic pathology units, and the directors through 14 meeting at educational venues, and also when I consult 15 them on policy decisions, which ultimately impinge upon 16 all of us working professionally in a collaboration. 17 The point there being that one thing I came 18 to realize very quickly when I took the position as Chief 19 Forensic Pathologist, is that policy development cannot be 20 only be for the Toronto units; that the office of the 21 Chief Coroner provides service provincially, and therefore 22 policy development, for it to have any meaning in the 23 context of provincial administration, has to be, in 24 principle, applicable in each of the units. 25 So on that basis I needed to engage the
1421 regional forensic pathology units into -- in a 2 professional collaboration to build consensus on how we 3 should develop policies that are applicable across the 4 Province. 5 This is a key ingredient, but is even more 6 necessary, because there is no formal relationship between 7 the Chief Forensic Pathologist and the regional forensic 8 pathology units. There is not employer/employee 9 relationship. 10 And the service agreements which 11 essentially govern the transfer of funds to the forensic 12 pathology units, do not specify the Chief Forensic 13 Pathologist in having any codified oversight role or 14 directorial role in the administration of the units. 15 MR. BRIAN GOVER: Who do they specify? 16 DR. MICHAEL POLLANEN: The Chief Coroner. 17 MR. BRIAN GOVER: And I take it that 18 rounds and adherence to guidelines also play a strong role 19 in relation to quality assurance. 20 DR. MICHAEL POLLANEN: Yes, the quality 21 insure -- assurance process involves several different 22 initiatives. The development of guidelines, again, 23 through a collaborative model, is one way that we have 24 produced a joint view to quality across the Province. And 25 I've taken the lead to develop that document and consult
1431 with people. 2 Also, the peer review system for auditive 3 autopsy reports. And through the early notification 4 system, which we have not yet discussed, but I have a role 5 in administering that process, which involves the 6 reporting of criminally suspicious cases and homicides to 7 the central forensic pathology unit immediately after the 8 post-mortem examination. 9 And in -- in those circumstances, I, or a 10 member of my staff, will look at the preliminary results 11 of the post-mortem examination to determine if additional 12 assistance is required in case management or recommend 13 accelerated case conferencing; these types of things. 14 And the other interaction is through the 15 educational program, which is both formal and informal; 16 the formal being events that we've already discussed and 17 the informal representing essentially opportunities to 18 engage various pathologists in discussions around cases. 19 MR. BRIAN GOVER: Now, the third area 20 relates to consultation services provided by fee-for- 21 service pathologists, and we've heard that Dr. Smith 22 provided consultation services in Valin's case and others 23 that were part of the review. 24 How did the fact that he performed 25 consulting services in those cases come to the attention
1441 of the Office of the Chief Coroner? I might -- I might 2 ask Dr. McLellan to answer that question. 3 DR. BARRY MCLELLAN: The office may or may 4 not know that that had taken place. If the pathologist 5 generated a report, that report would, hopefully, be 6 forwarded through to the investigating coroner, either 7 directly or through the initial pathologist who may have 8 requested some assistance with the case. 9 It may be that the original pathologist 10 would identify, in his or her autopsy report, that he had 11 sought the assistance of another pathologist. In certain 12 circumstances, historically, this was something that was 13 not known to the Office of the Chief Coroner. 14 MR. BRIAN GOVER: Does submission of an 15 invoice play any role in alerting the office to the fact 16 that consultation services may have been provided? 17 DR. BARRY MCLELLAN: It may or may not. 18 If the second pathologist, in this particular case submits 19 an invoice, we would know. It may very well be that an 20 invoice was not submitted. 21 MR. BRIAN GOVER: And was that the case 22 with consultation services provided by Dr. Smith in any of 23 these instances? 24 DR. BARRY MCLELLAN: I don't recall seeing 25 any invoices submitted to the Office of the Chief Coroner
1451 for consults performed by Dr. Smith; that does not mean he 2 did not do so on occasion. I don't recall ever seeing 3 any. 4 MR. BRIAN GOVER: And, in the case of 5 consultation services performed by the -- by a fee-for- 6 service pathologist for the Crown or the police, is there 7 any mechanism for the office to become aware of that fact 8 occurring? 9 DR. BARRY MCLELLAN: There is no structure 10 mechanism. It may be something that's communicated by the 11 pathologist. It may be communicated by the police or by 12 the Crown, but there's no structured mechanism in place. 13 MR. BRIAN GOVER: And, Dr. Pollanen, if a 14 fee-for-service pathologist performs consulting services 15 for the Crown or police today, can you tell us how he or 16 she would be paid? 17 DR. MICHAEL POLLANEN: It would depend 18 upon the -- the mechanism by which the pathologist was 19 engaged. For example, if it came out of a case 20 conferencing circumstance where the members of the team 21 met and -- and it -- and it was identified that a certain 22 expert would provide a consult; if it was -- if it was a 23 consult that would be related to the coroner's mandate, 24 the Coroner's Office may very well pay for that 25 consultation. If it were more on the criminal sphere,
1461 then the Crown would -- would pay for that consultation. 2 MR. BRIAN GOVER: And we come back to Dr. 3 McLellan's point that, in the case where the Crown pays 4 for it, I take it the Office of the Chief Coroner may well 5 be unaware of the services having been provided. 6 DR. MICHAEL POLLANEN: Correct. 7 MR. BRIAN GOVER: The fifth and final area 8 takes us back to money, and that has to do with the cost 9 of the Chief Coroner's Review. Dr. McLellan, was this 10 something that you were able to budget for? 11 DR. BARRY MCLELLAN: You're talking about 12 the review process that was -- that's been outlined in the 13 documentation here -- should there be a difficult issue -- 14 or are you talking about the review in the context of what 15 we're talking about here today, Dr. Smith and the larger 16 review? 17 MR. BRIAN GOVER: Dr. Smith and the larger 18 review. 19 DR. BARRY MCLELLAN: Right. 20 MR. BRIAN GOVER: Was this something that 21 you were able to forecast for, to go through the estimates 22 process, to make a business case for and to ultimately 23 budget for? 24 DR. BARRY MCLELLAN: No. 25 MR. BRIAN GOVER: And I take it that this
1471 became a draw on resources in the way you described in one 2 of your last answers to Ms. Rothstein; that is on the 3 people of your office, but this must have cost some money 4 as well? 5 DR. BARRY MCLELLAN: Oh, it certainly cost 6 -- cost money, especially for the work performed by the 7 external pathology experts. Now, it's something that I 8 just went ahead and paid. I did have some conversations 9 with the Commissioner indicating that there would be 10 increased costs, but there was never any budget for the 11 Review, itself. 12 MR. BRIAN GOVER: Thank you very much, 13 gentlemen. Those are my questions. 14 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 15 Gover. 16 But before the other parties begin to 17 cross-examine Dr. McLellan, let me ask you a question 18 since you won't be back. 19 You both, but particularly Dr. Pollanen had 20 given us very helpful thoughts on the two (2) approaches 21 in a broad generic sense one might take to pediatric 22 forensic pediatric pathology; that is primary emphasis on 23 the forensic, or primary emphasis on the pediatric 24 specialty. 25 Given the Ontario context, after serving as
1481 Chief Coroner, do you have a view on that debate? 2 DR. BARRY MCLELLAN: My own personal 3 perspective is that right now it's done by a combination 4 of forensic pathologists who have pediatric knowledge and 5 experience, and pediatric pathologists who have some 6 additional forensic knowledge or training. Because of the 7 numbers of pathologists, I expect in future it's still 8 going to be dealt with by a combination of the two (2). 9 One of the goals in our system is to try to 10 ensure that we have the best match between the case and 11 the pathologist who is dealing with the case. If we're 12 looking at a criminally suspicious or homicide case, it's 13 my own opinion that a forensic pathologist should be 14 involved with that particular case, because they have the 15 most expertise in dealing with homicide and criminally 16 suspicious cases. 17 COMMISSIONER STEPHEN GOUDGE: And the 18 hybrid approach that Dr. Pollanen advocated, or at least 19 spoke to -- I won't put advocacy into your mouth, Dr. 20 Pollanen -- does that meet your objective in criminally 21 suspicious death cases? 22 DR. BARRY MCLELLAN: Well, it -- it would, 23 aside from the, you know, complex homicide or criminally 24 suspicious case where, if one's looking at either taking a 25 pediatric pathologist who has some additional forensic
1491 expertise, or the other, the forensic pathologist with 2 pediatric expertise, in my own opinion the best match for 3 that case is the forensic pathologist who has additional 4 pediatric expertise. 5 COMMISSIONER STEPHEN GOUDGE: Thank you. 6 MR. BRIAN GOVER: Mr. Commissioner, may I 7 ask a couple of questions arising out of that? 8 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 9 Gover. I thought I better ask that before everybody, and 10 that includes you. 11 12 CONTINUED BY MR. BRIAN GOVER: 13 MR. BRIAN GOVER: Thank you, sir. And Dr. 14 Pollanen, how long has this practice of double-doctoring, 15 which you said has been embraced in the UK and I believe 16 Australia as well? 17 How long has that been in place in those 18 jurisdictions? 19 DR. MICHAEL POLLANEN: I -- I don't know. 20 MR. BRIAN GOVER: And your views of the 21 benefits of double-doctoring, Dr. Pollanen? 22 DR. MICHAEL POLLANEN: I think there are 23 many benefits to double-doctoring. The -- it allows both 24 perspectives to come out in the first instance. 25 The autopsy occurs very early on in the
1501 death investigation and is in fact one of the earliest 2 events. And if you produce the -- the best approach at 3 the front end to anticipate issues, medico-legal 4 controversies, and you harness the -- the value of the 5 pediatric pathologist and the forensic pathologist early 6 on in the case, I think it's a very good way of navigating 7 pitfalls. It's also a very good way to ensure 8 completeness of examination. 9 MR. BRIAN GOVER: In your view was that 10 feasible in Ontario in the 1990s? 11 DR. MICHAEL POLLANEN: I'd have to 12 consider that. 13 MR. BRIAN GOVER: Well, perhaps others 14 will come back to it. 15 COMMISSIONER STEPHEN GOUDGE: Yes, and we 16 will come back to it, Mr. Gover. It's a very important 17 area from my perspective to consider. 18 Just let me, at the risk of getting Mr. 19 Gover back on his feet, let me ask one (1) other question. 20 When you say "double-doctoring," do you envisage both a 21 pediatric specialist pathologist and a forensic specialist 22 pathologist in the autopsy room? Or can it be done with a 23 pediatric specialist at the microscope, not in the 24 autopsy? 25 DR. MICHAEL POLLANEN: That issue needs to
1511 be explored because the way it's traditionally -- the way 2 it traditionally operates is with both doctors being there 3 at the same time. 4 COMMISSIONER STEPHEN GOUDGE: In the 5 autopsy room? 6 DR. MICHAEL POLLANEN: In the autopsy 7 room. And the analogy for that, as I raised initially, 8 it's sometimes helpful to remove it from pediatric 9 pathology -- 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 DR. MICHAEL POLLANEN: -- to see the value 12 in this approach and that is skeletons, skeletal remains. 13 We frequently, in fact in may cases, 14 double-doctor those cases where the forensic pathologist 15 joins with the forensic anthropologist and we essentially 16 do the post-mortem together. And the value in that is 17 that there is a free and open exchange of ideas from the 18 beginning. 19 So you're both in the autopsy room, you're 20 both looking at the same materials, and you're both 21 discussing conclusions. And that is -- that is a fairly 22 valuable approach. 23 It's not to say that the double-doctoring 24 approach cannot be achieved through other mechanisms but 25 that's been its traditional application.
1521 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 Thank you very much. 3 Okay, Mr. Ortved, you're first. 4 MR. NIELS ORTVED: Thank you, Mr. 5 Commissioner. 6 7 (BRIEF PAUSE) 8 9 CROSS-EXAMINATION BY MR. NIELS ORTVED: 10 MR. NIELS ORTVED: So, Dr. McLellan -- Dr. 11 Pollanen, I don't want you to take this in the wrong way 12 but I'm going to start with Dr. McLellan because as we 13 understand you're here this one time and not returning. 14 And, Dr. Pollanen, you're coming back at 15 least once and -- and maybe more than once, correct? 16 DR. MICHAEL POLLANEN: That's my 17 understanding, yes. 18 MR. NIELS ORTVED: So you won't think I'm 19 ignoring you if I start with Dr. McLellan? 20 DR. MICHAEL POLLANEN: Not at all. 21 MR. NIELS ORTVED: Thank you. And, Dr. 22 McLellan, I'm actually going to -- my -- what I propose to 23 do here is a little different from what we've had to this 24 point in time. What I propose to do is to take you 25 through the -- the coroner's investigation process from
1531 the perspective of a coroner, because that's something you 2 can help us with, and try and tie it to systemic issues. 3 And, Mr. Commissioner, with all of this 4 blizzard of electronic information the document that I 5 actually thought was key to this exercise, namely the list 6 of systemic issues. When I asked about it so that we 7 could pull it up and I'll refer to it, we find it's not 8 yet available electronically. 9 So, it doesn't actually concern me, Mr. 10 Commissioner, that we're dealing with paper on this 11 particular item. So, if I could just give this to the 12 registrar? 13 14 (BRIEF PAUSE) 15 16 Now, what I propose to do, Mr. 17 Commissioner, is just give you and -- and the witnesses 18 copies of this. 19 COMMISSIONER STEPHEN GOUDGE: Thanks. 20 DR. MICHAEL POLLANEN: Thank you. 21 DR. BARRY MCLELLAN: Thank you. 22 23 CONTINUED BY MR. NIELS ORTVED: 24 MR. NIELS ORTVED: So, I actually see that 25 our registrar is sufficiently technologically capable that
1541 he's been able to put this up, so it's not in the 2 database, but apparently we have it electronically. 3 But tell me, Dr. McLellan, is this a -- is 4 this a document that -- that with which you're familiar? 5 Have you seen it previously? 6 DR. BARRY MCLELLAN: No. 7 MR. NIELS ORTVED: Okay. Well, don't 8 worry, we'll come to it and -- and we'll deal with it 9 sequentially. So, just to -- to commence, Dr. McLellan, 10 going back to -- to your background, as you've told us, 11 you -- your specialty training is in emergency medicine. 12 DR. BARRY MCLELLAN: Correct. 13 MR. NIELS ORTVED: And -- and your 14 background prior to joining the Coroner's Office was in 15 the area of emergency medicine. You were the Director of 16 the Trauma and Critical Unit at the Sunnybrook Hospital? 17 DR. BARRY MCLELLAN: Yes, my -- my 18 original clinical practice was in the Emergency 19 Department. With time, I developed a very specific 20 practice around trauma care and trauma resuscitation, and 21 I was the Director of the Trauma Program at Sunnybrook for 22 many years. 23 MR. NIELS ORTVED: Correct. And just so 24 that we're all kind of on the same page here, you don't 25 have training in pathology?
1551 DR. BARRY MCLELLAN: No. 2 MR. NIELS ORTVED: And -- and certainly 3 you don't have training in forensic pathology. 4 DR. BARRY MCLELLAN: No. 5 MR. NIELS ORTVED: And to take it one (1) 6 step further, you don't have any training in pediatric 7 forensic pathology. 8 DR. BARRY MCLELLAN: No. 9 MR. NIELS ORTVED: And what I think you 10 were very fair in conceding to all of us earlier was that 11 you -- you really didn't feel that you had the ability to 12 supervise the work of -- of a forensic pathologist. 13 DR. BARRY MCLELLAN: No. 14 MR. NIELS ORTVED: And -- and then coming 15 to your career as -- in -- in the Coroner's Office, you 16 were an investigating coroner from 1993 to 1998 for about 17 five (5) years? 18 DR. BARRY MCLELLAN: Correct. 19 MR. NIELS ORTVED: And you were then a 20 regional coroner for three (3) years. 21 DR. BARRY MCLELLAN: Correct. 22 MR. NIELS ORTVED: Before you effectively 23 joined management, not to use that term pejoratively. 24 DR. BARRY MCLELLAN: Before I became a 25 Deputy Chief Coroner, yes, correct.
1561 MR. NIELS ORTVED: So, in effect, you -- 2 what you can provide us and the Commissioner with is a 3 perspective on -- on the coronial system really from -- 4 from its investigating coroner perspective right through 5 to the -- the management and -- and Chief Coroner 6 perspective? 7 DR. BARRY MCLELLAN: Yes, I think that's 8 fair. 9 MR. NIELS ORTVED: And you, in fact, were 10 an investigating coroner during the period of time that 11 Dr. Smith was very active doing autopsies on behalf of the 12 Office of the Chief Coroner. 13 DR. BARRY MCLELLAN: That's correct. 14 MR. NIELS ORTVED: And would be familiar 15 with the system as it operated in that period, 1993 to 16 1998. 17 DR. BARRY MCLELLAN: I'm familiar with the 18 coroner system? 19 MR. NIELS ORTVED: Correct. 20 DR. BARRY MCLELLAN: Yes. 21 MR. NIELS ORTVED: And -- and from -- from 22 the perspective of Dr. Smith who was doing these autopsies 23 during that period, of course, it -- it was coroners like 24 yourself with whom he was dealing, correct? 25 DR. BARRY MCLELLAN: He would certainly be
1571 dealing with coroners as well as others, yes, correct. 2 MR. NIELS ORTVED: And what you told us on 3 Monday was that as a coroner, and I'm now talking about as 4 an investigating coroner, that you had concern about 5 dealing with the more complex cases? 6 DR. BARRY MCLELLAN: I -- I don't know 7 exactly what I said on Monday, but I felt that when I was 8 dealing with more complex cases that I certainly would be 9 calling my regional supervising coroner for assistance. 10 I also remember testifying to the fact that 11 I had, prior to becoming a regional supervising coroner, 12 recommended that there be some matching of experience of 13 coroners to complexity of case; specifically around 14 homicide criminally suspicious cases. 15 MR. NIELS ORTVED: Yes, and I'm going to 16 come to that. But -- but I'm -- I'm kind of back at the 17 point where you're -- you're a young coroner, young in the 18 job, unfortunately not -- not young, but 1993, 1994, 1995, 19 in -- in terms of the -- of the more complex cases, those 20 were cases in which you felt less comfortable? 21 DR. BARRY MCLELLAN: Yes, I think that's 22 fair. Until I gained more experience as an investigating 23 coroner, I felt that I required more direct supervision in 24 the cases I was dealing with. 25 MR. NIELS ORTVED: Correct.
1581 DR. BARRY MCLELLAN: I'm not sure 2 comfortable is necessarily the -- the correct descriptor, 3 whether I used that on Monday or not, in that I felt 4 comfortable doing my investigations because I could call 5 for supervision as -- as requested. 6 MR. NIELS ORTVED: I actually think the 7 term you -- you used was concerned, but that's -- it's a 8 difference in terminology. And so, as I understand it, 9 the -- the cases that would be more complex would 10 certainly include the -- the potentially criminally 11 suspicious or homicide cases? 12 DR. BARRY MCLELLAN: Yes. 13 MR. NIELS ORTVED: And in -- in all -- 14 it's -- no exaggeration that these were difficult cases? 15 DR. BARRY MCLELLAN: I agree. 16 MR. NIELS ORTVED: And I suggest to you, 17 particularly difficult where a child was concerned, 18 correct? 19 DR. BARRY MCLELLAN: Yes. 20 MR. NIELS ORTVED: Now as far as your -- 21 as far as the -- the -- the kind of landscape is concerned 22 generally, you've told the Commissioner that there was 23 some three hundred (300) plus investigating coroners, 24 correct? 25 DR. BARRY MCLELLAN: There certainly are
1591 now. I don't know exactly how many there were in the 2 1990's. 3 MR. NIELS ORTVED: But that approximate 4 number? 5 DR. BARRY MCLELLAN: I -- I would expect 6 so. 7 MR. NIELS ORTVED: And -- and it's no 8 secret that these coroners had variable expertise? 9 DR. BARRY MCLELLAN: Correct. 10 MR. NIELS ORTVED: In terms of coverage, 11 you've told us that this was a challenge, and some areas 12 actually were under serviced? 13 DR. BARRY MCLELLAN: Correct. 14 MR. NIELS ORTVED: And then the -- the 15 regional supervising coroners are effectively promoted 16 from investigating coroners, correct? 17 DR. BARRY MCLELLAN: Correct. 18 MR. NIELS ORTVED: So again, there would 19 be variable expertise amongst those individuals? 20 DR. BARRY MCLELLAN: Yes. 21 MR. NIELS ORTVED: And as far as the 22 training for coroners was concerned, you've told us that - 23 - I think you said you had a two (2) day training course - 24 - when you started? 25 DR. BARRY MCLELLAN: That's -- that's
1601 correct. 2 MR. NIELS ORTVED: And did you tell the 3 Commissioner that that is now a two (2) and a half day 4 course? 5 DR. BARRY MCLELLAN: I'm not sure whether 6 I indicated that or not. It is now a two (2) and a half 7 day course. 8 MR. NIELS ORTVED: I thought -- I thought 9 that was the evidence. 10 DR. BARRY MCLELLAN: I may well have, but 11 it -- it is a two (2) and a half day course. 12 MR. NIELS ORTVED: And when you became a 13 supervising coroner, did you have any additional training? 14 DR. BARRY MCLELLAN: No. 15 MR. NIELS ORTVED: And, when you took your 16 residency program to obtain your fellowship in emergency 17 medicine, that would have been, what, a four (4) year 18 program? 19 DR. BARRY MCLELLAN: It was three (3) 20 years post internship, so four (4) years in total. 21 MR. NIELS ORTVED: Correct. And -- and if 22 some -- if a physician today outs -- is training to 23 become, for instance, a family -- a certified family 24 practitioner, that's a -- that's a two (2) year course, 25 correct?
1611 DR. BARRY MCLELLAN: My understanding is 2 it's three (3) years inclusive of the internship, but it 3 may well be two (2) years. 4 MR. NIELS ORTVED: No, it's -- I think -- 5 that's -- I think we're on the same page here; I think 6 it's two (2) years post internship. 7 So, the -- just commencing with my first 8 query concerning systemic issues here, can we agree that - 9 - that the Commissioner might want to devote some time to 10 the consideration of, potentially, increasing the 11 education course for coroners? 12 DR. BARRY MCLELLAN: I don't know how to 13 answer the question. I mean, certainly the Commissioner 14 may wish to recommend that. If you're asking for my 15 opinion in that, that -- that's a different question. 16 MR. NIELS ORTVED: Well, I think what the 17 Commissioner's going to be assisted by is -- is your 18 recommendation. 19 DR. BARRY MCLELLAN: It's a -- it's a 20 balance to try to -- to strike. It's -- it's difficult in 21 many communities to recruit investigating coroners. The 22 two and a half (2 1/2) day course is intensive, and it 23 certainly is understood at the end of that two and a half 24 (2 1/2) days that those new investigating coroners will 25 require supervision and will require further education.
1621 It's going to be difficult to be able to 2 recruit coroners if the expectation is that they were to 3 leave their area of practice to come to a course which 4 could go on, for example, for weeks. 5 And I'm not sure what time period 6 specifically or thinking the Commissioner may -- may 7 recommend, but we have talked may times about increasing 8 the period for -- for training, and the feedback we've 9 received from the new coroners is that they're concerned 10 even being out of some of their communities for what might 11 be three (3) to four (4) days, including travel. So, it 12 is in future, I think, going to still be a difficult 13 balance to achieve. 14 MR. NIELS ORTVED: More education can't 15 hurt. 16 DR. BARRY MCLELLAN: I -- I think that new 17 coroners could always benefit from more education. 18 MR. NIELS ORTVED: This is an important 19 function, correct, Dr. McLellan? 20 DR. BARRY MCLELLAN: I agree. 21 MR. NIELS ORTVED: And the demands on 22 coroners in 2007 are greater than they've ever been, I put 23 it to you. 24 DR. BARRY MCLELLAN: I agree. 25 MR. NIELS ORTVED: And so I'm not
1631 pretending to be some expert who can say what is the 2 optimal time to -- to train a recruited coroner, but if -- 3 if instead of two and a half (2 1/2) days, it were a week, 4 that doesn't actually sound like a huge imposition, does 5 it? 6 DR. BARRY MCLELLAN: Well, I -- I would 7 certainly be supportive of a longer period of education 8 provided the resources were available for the education 9 and provided that, based on an analysis, it was not going 10 to interfere with the recruitment of coroners in the 11 future. 12 MR. NIELS ORTVED: Thank you. Then -- 13 COMMISSIONER STEPHEN GOUDGE: Can I just 14 ask, Mr. Ortved -- 15 MR. NIELS ORTVED: Yes. 16 COMMISSIONER STEPHEN GOUDGE: -- what do 17 you see as the barriers to recruitment now? 18 DR. BARRY MCLELLAN: One of the most 19 significant barriers is that there's a shortage of 20 physicians in the Province. And especially in some 21 communities that are very under-serviced, it's very 22 difficult to recruit and to bring a coroner into the syste 23 -- and be -- bring a physician into the system as a -- as 24 a new coroner, asking them to do more than they were 25 already doing.
1641 Now, the compensation is not attracting 2 people to the work, and here we're talking about the fee- 3 for-service compensation. It's become far more reasonable 4 with time, but it's not considered an incentive if one 5 compares the compensation for doing coroner's work to that 6 of doing clinical work. 7 COMMISSIONER STEPHEN GOUDGE: Is it a 8 disincentive? 9 DR. BARRY MCLELLAN: My own feeling is 10 that physicians apply to be an investigating coroner 11 because they're interested in doing the work, and for 12 those that are interested, I would say right now it's not 13 a disincentive. 14 But there still is that ongoing challenge, 15 Commissioner, in that especially in some of the under- 16 serviced areas, the compensation is certainly not 17 attracting doctors in to do coroner's work. 18 COMMISSIONER STEPHEN GOUDGE: And sorry 19 for pursuing this, Mr. Ortved, but -- 20 MR. NIELS ORTVED: I'm going to deduct 21 this from my time. 22 COMMISSIONER STEPHEN GOUDGE: Yes, you can 23 deduct it from my time. 24 The three hundred (300) or so investigating 25 coroners each have a geographic responsibility?
1651 DR. BARRY MCLELLAN: Yes, they -- they 2 work within set areas of the Province, yes. 3 COMMISSIONER STEPHEN GOUDGE: And are 4 there geographic differentiations in recruitment 5 challenges? 6 DR. BARRY MCLELLAN: Yes. 7 COMMISSIONER STEPHEN GOUDGE: Do you want 8 to elaborate that for a moment? 9 DR. BARRY MCLELLAN: The greatest 10 challenge is in the more rural communities where there are 11 greater challenges with having sufficient physicians to 12 care for patients. 13 Now, there are some larger communities 14 where there's also significant problems with the number of 15 physicians but, in general terms, it tends to be more of a 16 problem when you get out of larger centres and into those 17 with a lower population base. 18 COMMISSIONER STEPHEN GOUDGE: Over your 19 time running the system, was this general recruitment 20 problem increasing or decreasing in difficulty? 21 DR. BARRY MCLELLAN: I would actually say 22 that it was about the same. And I think that our success 23 in increasing the fee was important in that that was 24 decreasing the number of coroners who were leaving the 25 system so we were having to recruit fewer into the system.
1661 But, overall, there still is a shortage of 2 -- of coroners in a number of communities and smaller 3 rural communities especially in the Province. 4 COMMISSIONER STEPHEN GOUDGE: What order 5 of magnitude -- three hundred (300) now? What would an 6 optimal number be? I mean, just roughly. I mean, are we 7 short 25 percent or 3 percent? 8 DR. BARRY MCLELLAN: No, I would say that 9 probably another total of -- and this is an approximate -- 10 another twenty-five (25), you know. No more than fifty 11 (50) coroners would -- would provide the sort of coverage 12 we're looking for recognizing that, again, we're looking 13 at a smaller number -- a small community need. 14 COMMISSIONER STEPHEN GOUDGE: Thanks. 15 Thanks, Mr. Ortved. 16 MR. NIELS ORTVED: Thank you, Mr. 17 Commissioner. 18 19 CONTINUED BY MR. NIELS ORTVED: 20 MR. NIELS ORTVED: So, Dr. McLellan, if I 21 understood your evidence, I think you -- you gave us to 22 understand, I know it's certainly set out in the 23 institutional report that when a death is recognized as 24 requiring the assistance of a coroner that the 25 notification goes out to the on-call coroner, if I can put
1671 it that way, without regard to the skills or expertise of 2 the coroner? 3 DR. BARRY MCLELLAN: That's correct. 4 MR. NIELS ORTVED: It's kind of like a 5 taxi -- a cab rank system; is that fair? It's the on- 6 call person? 7 DR. BARRY MCLELLAN: It's the on-call 8 person, yes. 9 MR. NIELS ORTVED: And -- and this -- 10 this, undoubtedly, creates problems in cases of 11 complexity? 12 DR. BARRY MCLELLAN: Well, the -- I 13 believe your question is, you know, complexity is not 14 matched to the experience of the coroner. 15 MR. NIELS ORTVED: Correct. And -- and -- 16 and this can, I'm suggesting to you, be an issue where you 17 have a coroner who's on his or her first case and it 18 happens to be a criminally suspicious or potentially 19 homicide case, correct? 20 DR. BARRY MCLELLAN: I actually don't have 21 any information to say that that is compromising the 22 investigation in any way, and that the expectation is -- 23 is that that relatively inexperienced coroner will be 24 calling for assistance from their Regional Supervising 25 Coroner early on.
1681 As that coroner develops more experience, 2 they're less likely to be calling for certain types of 3 cases. 4 MR. NIELS ORTVED: That's -- that's the 5 hope. 6 DR. BARRY MCLELLAN: Well, within the 7 guidelines and within, you know, our teaching courses, the 8 expectation is that we -- that coroners will be contacting 9 their Regional Supervising Coroner for homicide and 10 criminally suspicious cases at the time or shortly 11 thereafter. 12 MR. NIELS ORTVED: I'm simply suggesting 13 to you that -- and I think you -- you said as much in your 14 evidence -- that it may be preferable that certain cases 15 be streamed to certain coroners. 16 DR. BARRY MCLELLAN: This was my 17 suggestion prior to becoming a Regional Supervising 18 Coroner. With time, I have learned that that would, in 19 fact, be difficult in many communities. 20 Do I see an advantage to that in larger 21 communities where there's more coroners and the 22 opportunity to better match the experience and skill set? 23 Yes. 24 MR. NIELS ORTVED: Thank you. And -- and 25 it may be of assistance if there were available, to some
1691 subset of coroners, additional education and training in 2 the management of these very complex, criminally 3 suspicious and potentially homicide cases. Correct? 4 DR. BARRY MCLELLAN: If you were to go to 5 the sort of model I've described in those centres where 6 there are enough coroners to be able to -- to match skill 7 set, the answer is yes. 8 MR. NIELS ORTVED: All right. So, now 9 coming to systemic recommendations. If I'm -- I think I'm 10 being fair to your evidence when I suggest to you that, in 11 effect, what you've done is you've made three (3) 12 suggestions to the Commissioner. 13 One is that -- that there be efforts to 14 increase coverage across the Province, correct? 15 DR. BARRY MCLELLAN: I agree. 16 MR. NIELS ORTVED: Secondly, that -- as 17 far as training is concerned, that consideration be given 18 to, potentially, enhancing it and -- and, specifically, in 19 the area of criminally suspicious and potentially homicide 20 cases. 21 DR. BARRY MCLELLAN: And here we're 22 talking about the new -- new coroners? 23 MR. NIELS ORTVED: Yes. 24 DR. BARRY MCLELLAN: Yes, I agree with the 25 provisos I mentioned earlier. Yes, I do.
1701 MR. NIELS ORTVED: Correct. And -- and 2 the -- the -- I think the -- the terminology that you 3 used about one (1) minute before our lunch break was more 4 education was -- was sort of high on your wish list. 5 Correct? 6 DR. BARRY MCLELLAN: Yes. Now, that was 7 in the context of the annual education courses. But, yes, 8 more education is something that I would recommend. 9 MR. NIELS ORTVED: And -- and thirdly, 10 potentially streaming where possible. 11 DR. BARRY MCLELLAN: Potentially streaming 12 where possible and feasible, yes. 13 MR. NIELS ORTVED: Now, coming to the 14 pathologist and, you know, Dr. Pollanen's just going to 15 have to accept the fact that I'm putting these questions 16 about pathology to Dr. McLellan. But, again, from the -- 17 the roles of -- of the -- of the coroner and the 18 pathologist, as we know, for the lay person like myself, 19 they're -- they're frequently confused. 20 DR. BARRY MCLELLAN: Correct. 21 MR. NIELS ORTVED: And, but the -- and, in 22 fact, the pathologist is only called in as deemed 23 necessary by the coroner. 24 DR. BARRY MCLELLAN: Correct. 25 MR. NIELS ORTVED: So the coroner can be
1711 called in to investigate a case and conclude that an 2 autopsy is not necessary? 3 DR. BARRY MCLELLAN: Correct. 4 MR. NIELS ORTVED: And the autopsy carried 5 out by the pathologist is only one (1) aspect of that 6 coroner's death investigation? 7 DR. BARRY MCLELLAN: Correct. 8 MR. NIELS ORTVED: And, in fact, it's the 9 coroner that's responsible for the entire investigation, 10 including its conclusions? 11 DR. BARRY MCLELLAN: Now that I need to 12 qualify. Responsible for the entire investigation? The - 13 - the coroner is the quarterback for the investigation; 14 that's the analogy I used on -- on Monday. And it is the 15 coroner at the conclusion who has legislative 16 responsibility for answering the five (5) questions and 17 completing the investigation. 18 MR. NIELS ORTVED: Correct. 19 DR. BARRY MCLELLAN: Now in your question, 20 I though you said has responsibility for all. That's a 21 bit more of a complicated matter. 22 MR. NIELS ORTVED: Yeah, no, you -- you've 23 actually corrected me, and -- and really what I wanted to 24 -- to communicate, was -- was the fact that it's the 25 coroner that has the obligation to arrive at the
1721 conclusions concerning both cause and manner of death, 2 ultimately? 3 DR. BARRY MCLELLAN: That's correct. 4 MR. NIELS ORTVED: Now one of the things 5 we can all agree on in this Inquiry, is that forensic 6 pathologist is a challenging discipline? 7 DR. BARRY MCLELLAN: I agree. 8 MR. NIELS ORTVED: And I think what Dr. 9 Pollanen has clarified for us as recently as -- in answer 10 to the Commissioner's questions a few minutes ago, is that 11 forensic pathology in the context of a pediatric death 12 maybe has an added aspect of complexity to it? 13 DR. BARRY MCLELLAN: I agree. 14 MR. NIELS ORTVED: And so -- and certainly 15 all criminally suspicious, or potentially homicide cases 16 involving the death of children would fall into the 17 complex category? 18 DR. BARRY MCLELLAN: Correct. 19 MR. NIELS ORTVED: So following up our 20 discussion about education, do you think it would assist 21 coroners, particularly those coroners, if there were 22 additional training in complex cases, that they receive 23 education, to some extent, in the basics of forensic 24 pathology? 25 DR. BARRY MCLELLAN: Okay, I just want to
1731 make sure I do understand your -- your line of 2 questioning, because you were talking about pathologists, 3 and then your question was about additional training for 4 coroners. 5 I just want to make sure I understood the 6 question correctly. 7 MR. NIELS ORTVED: No, you understood it. 8 DR. BARRY MCLELLAN: Okay. 9 MR. NIELS ORTVED: So -- because -- 10 because we know that there are certain cases which -- and 11 we had them within the cohort here, where the -- where the 12 coroner did not order an autopsy, correct? 13 DR. BARRY MCLELLAN: Sorry? 14 MR. NIELS ORTVED: Initially? 15 DR. BARRY MCLELLAN: Yes, correct. 16 MR. NIELS ORTVED: And so my simple 17 question to you is if we -- if we're going to have 18 coroners who are considering whether or not to order 19 autopsies, and their dealing with complex cases, it 20 doesn't strike me as a stretch that we would maybe offer 21 to those coroners as part of their education process, some 22 training in the basics of forensic pathology? What can 23 forensic pathology do? 24 DR. BARRY MCLELLAN: So part of the 25 training of -- of new coroners is around pathology, and
1741 forensic pathology. Part of their ongoing training is, as 2 well. Also, part of their training is when to order an 3 autopsy. 4 Now I -- I do agree that in the context of 5 this larger review, there were cases where autopsies were 6 not ordered initially. 7 MR. NIELS ORTVED: Correct. 8 DR. BARRY MCLELLAN: I don't have any 9 information today to suggest that coroners are not 10 appropriately ordering autopsies -- and again, in the 11 context of this Inquiry -- in pediatric cases. 12 So additional education in general is a 13 good thing, and I spoke to that before the -- the lunch 14 break. I'm not convinced, at present, that if there was 15 an opportunity for additional education tomorrow that 16 necessarily the focus would be around when to order or not 17 to order an autopsy. There could be needs for some 18 further ongoing training in that area, but that may not be 19 the most critical need. 20 Now, in general, could coroners use more 21 education about pathology? Yes. 22 MR. NIELS ORTVED: Okay, well, that's -- 23 that's my question. 24 DR. BARRY MCLELLAN: I just wanted to 25 provide a context for the answer.
1751 MR. NIELS ORTVED: And so, looking at what 2 the Commission here has generated as its list of systemic 3 issues, and looking at number 48 in particular, under the 4 heading "The Role of the Coroner", what education and 5 training should coroners have respecting pediatric 6 forensic pathology issues? 7 I think what you're saying is -- well, what 8 you said is, on pathology -- on forensic pathology, yes. 9 We haven't gone as far as pediatric forensic pathology in 10 -- in your answer. 11 DR. BARRY MCLELLAN: Not yet. You may be 12 taking me to a further very good question. Now, thi -- 13 this deals with pediatric forensic pathology issues and 14 there may be many issues around that, including 15 interpretation and -- and others. 16 But, in general, you know, is there a need 17 for more education, generally? Yes. And you may wish to 18 take me to a specific line of questioning around this. 19 MR. NIELS ORTVED: Well, I think -- I 20 think it follows that -- that -- fairly naturally, that -- 21 that more education on -- generally, more education on 22 forensic pathology and having regard to the focus of this 23 inquiry, including pediatric forensic pathology, appears 24 to make some sense. 25 DR. BARRY MCLELLAN: As part of ongoing
1761 education in the big picture, yes, I agree. 2 MR. NIELS ORTVED: Now, I -- I want to go 3 to -- on in the death investigation and -- and talk about 4 specifics. So, what you've, I think, indicated or -- and 5 that's my note, is that ideally the body should be seen at 6 the -- at -- at the scene? 7 DR. BARRY MCLELLAN: Correct. 8 MR. NIELS ORTVED: And what we are aware 9 is that this is not the invariable practice? 10 DR. BARRY MCLELLAN: That's correct. 11 MR. NIELS ORTVED: I think I can go 12 further and say, in those -- in that subset of cases which 13 are criminally suspicious or potentially homicide cases, 14 actually viewing the body at the scene is critical? 15 DR. BARRY MCLELLAN: It -- it's very 16 important. Now, when you say "at the scene", you know the 17 -- there could be a number of different scenes relevant to 18 a -- a death. It could be that someone has been injured 19 in a particular setting, taken to hospital, dies shortly 20 thereafter; where the death has occurred is in the 21 hospital, so that's the death scene. But the other scene 22 may also be very important, so there may well be more than 23 one (1) scene. 24 MR. NIELS ORTVED: Well, I'm -- I'm 25 looking at the -- the institutional report, page 28,
1771 paragraph 80, and this is a report, Dr. McLellan, which 2 you've reviewed and -- and you -- you adopt, correct? 3 DR. BARRY MCLELLAN: Correct. 4 MR. NIELS ORTVED: And -- and paragraph 80 5 reads: 6 "The investigating coroner's presence at 7 a death scene is critical when the 8 apparent means of death is homicide or 9 suicide." 10 And I'm just stopping there. I've read 11 that correctly, have I not? 12 DR. BARRY MCLELLAN: Yes. 13 MR. NIELS ORTVED: You don't disagree with 14 that, surely? 15 DR. BARRY MCLELLAN: I don't, and then 16 again, the context I just want to put to this is that in 17 certain circumstances it's just not possible for a coroner 18 to be at the death scene in the remote location. 19 MR. NIELS ORTVED: No, I -- I understand 20 that and -- and Dr. Pollanen clarified that, I think 21 yesterday when he talked about how -- or maybe on Monday - 22 - when he talked about how in -- in some cases this may be 23 facilitated through the use of certain photographic 24 techniques. 25 DR. BARRY MCLELLAN: Digital photography,
1781 I believe is what Dr. Pollanen referred to it as. 2 MR. NIELS ORTVED: Right. But ideally -- 3 and here we're -- we're enga -- engaged in a process to 4 make recommendations to -- to improve the system; ideally 5 if -- if you were still the Chief Coroner of Ontario, 6 you'd like to have a coroner at every scene of a 7 criminally suspicious death. 8 DR. BARRY MCLELLAN: Yes. 9 MR. NIELS ORTVED: And we know, from what 10 you've told us and from our review of these files, that 11 that certainly wasn't happening invariably in the late 12 '90s. 13 DR. BARRY MCLELLAN: Correct. 14 MR. NIELS ORTVED: And I think you told us 15 that you, yourself, were concerned about this and, 16 therefore, have incorporated the importance of this into 17 one of your guidelines. 18 DR. BARRY MCLELLAN: Correct. 19 MR. NIELS ORTVED: And when the -- the 20 coroner attends at the scene, as far as you're concerned, 21 I think -- I think we can agree on the following; the 22 coroner should be obtaining information from the police? 23 DR. BARRY MCLELLAN: Correct. 24 MR. NIELS ORTVED: Making observations of 25 the scene him or herself?
1791 DR. BARRY MCLELLAN: Correct. 2 MR. NIELS ORTVED: Certainly making 3 observations of the body? 4 DR. BARRY MCLELLAN: Correct. 5 MR. NIELS ORTVED: Checking various signs, 6 such as rigour mortis, liver mortis, visible external 7 injuries, correct? 8 DR. BARRY MCLELLAN: Correct. 9 MR. NIELS ORTVED: And -- and in addition, 10 obtaining as much information as he or she is able 11 concerning the -- the history of the deceased, correct? 12 DR. BARRY MCLELLAN: Correct. 13 MR. NIELS ORTVED: And that may -- that 14 may be from family members. It may be from those at the 15 scene. It may be -- it may be from attending physicians? 16 DR. BARRY MCLELLAN: Correct. 17 MR. NIELS ORTVED: But, of course, as we 18 know, practices varied, correct? 19 DR. BARRY MCLELLAN: Correct. 20 MR. NIELS ORTVED: And -- and it wasn't 21 every scene that was visited by a coroner, certainly going 22 back to the 1990s. 23 DR. BARRY MCLELLAN: Correct. 24 25 (BRIEF PAUSE)
1801 MR. NIELS ORTVED: And, what my note of 2 your evidence on Monday is that in your own experience, 3 where you were involved in a complex case and -- and you 4 actually attended the scene, and you concluded that an 5 autopsy was necessary, what you said was, 6 "I didn't even have the authority to 7 determine -- to determine where that 8 autopsy was to take place." 9 DR. BARRY MCLELLAN: I don't actually 10 recall saying that exactly; I -- I may have. 11 MR. NIELS ORTVED: That's my note of your 12 evidence. 13 DR. BARRY MCLELLAN: Well, it -- I -- I 14 don't recall saying that, so if you can just read back and 15 then perhaps I can clarify anything to correct it today. 16 MR. NIELS ORTVED: My understanding was 17 that you -- you were addressing the issue of where an 18 autopsy took place, and -- and you indicated that -- that 19 during the period that you were doing these 20 investigations, you didn't have the authority to be able 21 to say it took place in a particular location. 22 DR. BARRY MCLELLAN: I understand. So, in 23 -- in the situation of a complex case where there was a 24 decision as to where an autopsy should be done -- 25 MR. NIELS ORTVED: Right.
1811 DR. BARRY MCLELLAN: -- that an 2 investigating coroner would get guidance from the Regional 3 Supervising Coroner as to where that autopsy should best 4 be done. 5 MR. NIELS ORTVED: Right. 6 DR. BARRY MCLELLAN: Correct. 7 MR. NIELS ORTVED: Now, in the 8 circumstance of pediatric deaths, clearly they're -- all 9 of the obligations incumbent on investigating coroners 10 are, in effect, increased. 11 Can I put it that way? 12 DR. BARRY MCLELLAN: Yes. 13 MR. NIELS ORTVED: And back in 1995, at 14 the time of this protocol, the conclusion was that in 15 connection with pediatric deaths, they sometimes were not 16 being investigated as thoroughly as they might be. 17 DR. BARRY MCLELLAN: So prior to the 1995 18 protocol? 19 MR. NIELS ORTVED: Correct. 20 DR. BARRY MCLELLAN: Correct. 21 MR. NIELS ORTVED: And the 1995 protocol, 22 just to put this in context, Dr. McLellan, was during the 23 period of time that you were actually an investigating 24 coroner. 25 DR. BARRY MCLELLAN: That's correct.
1821 MR. NIELS ORTVED: And this is the 2 protocol that -- that told coroners that they should be, 3 quote, "thinking dirty", close quote? 4 DR. BARRY MCLELLAN: That was part of the 5 protocol, correct. 6 MR. NIELS ORTVED: And, in effect, what 7 they're -- what they were saying was, Coroners in 8 pediatric deaths, in particular, you are obliged to 9 maintain a high index of suspicion. 10 DR. BARRY MCLELLAN: That was how I, as an 11 investigating coroner, interpreted that -- correctly. 12 MR. NIELS ORTVED: And -- and this -- this 13 attitude, that was dictated, applied to the investigating 14 team which included the police, correct? 15 DR. BARRY MCLELLAN: Correct. 16 MR. NIELS ORTVED: It included the 17 coroner? 18 DR. BARRY MCLELLAN: Correct. 19 MR. NIELS ORTVED: And it included the 20 pathologist? 21 DR. BARRY MCLELLAN: Correct. 22 MR. NIELS ORTVED: And as far as you have 23 told us, what you'd like to say in 2007 is that this 24 philosophy -- if I can put it that way -- instead of, 25 quote, "thinking dirty", close quote, should be, quotes,
1831 "keep an open mind", close quote. 2 DR. BARRY MCLELLAN: Correct. 3 MR. NIELS ORTVED: And, effectively, I 4 think what you're saying is think objectively. 5 DR. BARRY MCLELLAN: Correct. 6 MR. NIELS ORTVED: And, so, if I can then 7 take you to 49 -- paragraph -- recommendation 49 in the -- 8 in the preliminary list of possible systemic issues. You 9 see there: 10 "How should the roles of the corner and 11 the pathologist be best delineated in 12 the investigation of pediatric forensic 13 deaths?" 14 I've read that correctly? 15 DR. BARRY MCLELLAN: Correct. 16 MR. NIELS ORTVED: I think what you've 17 told the Commissioner, the following. First, that the 18 coroner should invariably attend the scene in the case of 19 a complex pediatric death, unless it's not feasible to do 20 so. 21 DR. BARRY MCLELLAN: Correct. 22 MR. NIELS ORTVED: And second, that in 23 every case of a potentially suspicious pediatric death, a 24 coroner should be ordering an autopsy. 25 DR. BARRY MCLELLAN: Correct.
1841 MR. NIELS ORTVED: That the coroner should 2 be able to designate or ensure that the autopsy is carried 3 out by a forensic pathologist. 4 DR. BARRY MCLELLAN: From my perspective, 5 if this is a -- and this goes back to the question the 6 Commissioner asked me earlier, that it should be someone 7 who has both forensic and pediatric expertise. 8 MR. NIELS ORTVED: Good. Thank you. 9 DR. BARRY MCLELLAN: And I believe the 10 Commissioner was asking of the two (2), which one did I 11 feel made the most sense in future. And I believe that if 12 the properly trained people are here, the forensic 13 pathologists with pediatric experience makes the most 14 sense. I believe I also indicated 15 that a combination of the two (2) is what's in place right 16 now and I expect in future it will be a combination of the 17 two (2)? 18 MR. NIELS ORTVED: Thank you. And that 19 finally in terms of the attitude that should govern that 20 investigation, it should be one of be vigilant, keep an 21 open mind. 22 DR. BARRY MCLELLAN: Correct. 23 MR. NIELS ORTVED: Thank you. 24 COMMISSIONER STEPHEN GOUDGE: Is this a 25 good place to break?
1851 MR. NIELS ORTVED: Yes, it is, Mr. 2 Commissioner. 3 COMMISSIONER STEPHEN GOUDGE: Okay. We 4 will be back at a couple of minutes after 3:30. 5 6 --- Upon recessing at 3:19 p.m. 7 --- Upon Resuming at 3:34 p.m. 8 9 THE REGISTRAR: All rise. Please be 10 seated. 11 COMMISSIONER STEPHEN GOUDGE: Mr. 12 Ortved...? 13 14 CONTINUED BY MR. NIELS ORTVED: 15 MR. NIELS ORTVED: So, Dr. McLellan, if I 16 could I'd like to turn to communication with the 17 pathologist and that is to say communication on the part 18 of the coroner with the pathologist. 19 So what you told us Monday is that 20 communication among team members is critical? 21 DR. BARRY MCLELLAN: Correct. 22 MR. NIELS ORTVED: And it's expected as a 23 matter of course that the investigating coroner where an 24 autopsy is ordered will contact the pathologist? 25 DR. BARRY MCLELLAN: No. No, I -- I
1861 indicated myself I used to speak to the pathologist in 2 each and every case. There's now a policy for homicide, 3 criminally suspicious cases and deaths under five (5) that 4 that will occur, but the expectation has not been in each 5 and every case that every coroner would speak directly to 6 the pathologist in advance of the case. 7 MR. NIELS ORTVED: All right. So I erred 8 in that I should have clarified for you that I was 9 referring to those complex cases involving criminally 10 suspicious cases or homicide cases and there's -- you've 11 just told us you would expect that the coroner would be in 12 touch with the -- with the pathologist? 13 DR. BARRY MCLELLAN: Right. And that's as 14 of a memo that was issued in April of this year, yes, 15 correct. 16 MR. NIELS ORTVED: But the memo that was 17 issued in April of this year, that's following the 18 announcement of the review, correct? 19 DR. BARRY MCLELLAN: Correct. 20 MR. NIELS ORTVED: But -- but I'm 21 actually going back to before that time and -- and 22 actually into the '90s. It was expected I'm suggesting to 23 you that -- or the hope was that the -- that the coroner 24 would be in touch with the pathologist in these complex 25 cases?
1871 DR. BARRY MCLELLAN: When I was entering 2 the system in '93 and '94 that was not what was taught as 3 part of the course as the coroner would call in each and 4 every complex case in advance. And up until recently that 5 was not done in each and every case. That was the reason 6 for issuing the memo in April of this year. That was 7 therefore a change in expectation. 8 MR. NIELS ORTVED: Okay. So I'm mistaken 9 because I -- I understood it was a variable practice and - 10 - and that is correct up to -- 11 DR. BARRY MCLELLAN: Correct. 12 MR. NIELS ORTVED: -- up until April? 13 DR. BARRY MCLELLAN: That's correct. 14 MR. NIELS ORTVED: And the -- the 15 expectation is that, as of April, 2007, it is now no 16 longer a variable practice. 17 DR. BARRY MCLELLAN: It is supposed to 18 happen in each and every case now, correct. 19 MR. NIELS ORTVED: And furthermore, when - 20 - regardless as whether a coroner were to contact the 21 pathologist verbally in a complex case, as we know, if 22 they -- if an autopsy was ordered, then -- then a warrant 23 had to be completed. 24 DR. BARRY MCLELLAN: Correct. 25 MR. NIELS ORTVED: And the warrant
1881 includes a space for a case history, correct? 2 DR. BARRY MCLELLAN: Yes. 3 MR. NIELS ORTVED: And the expectation was 4 that this would be comprehensive -- as comprehensive as 5 possible. 6 DR. BARRY MCLELLAN: And again, are we 7 talking now in the context of the criminally suspicious 8 homicide case? 9 MR. NIELS ORTVED: Yes, and -- and forgive 10 me, but that's really the context in which I'm putting my 11 questions. 12 DR. BARRY MCLELLAN: Okay. Coroners were 13 taught to be complete in -- in completing the narrative 14 section of the warrants; that has not been the case in 15 each and every case. 16 MR. NIELS ORTVED: Well, we're aware of 17 that, but -- but we're now talking about systemic issues 18 and potential recommendations and -- and it would be, I'm 19 suggesting to you, your recommended practice that this be 20 done and it be done as comprehensively as possible. 21 DR. BARRY MCLELLAN: Yes. 22 MR. NIELS ORTVED: And that would include, 23 as we know from the 1995 memo, the -- the memo we've 24 discussed already, that this would include family history, 25 correct?
1891 DR. BARRY MCLELLAN: That's correct. 2 MR. NIELS ORTVED: And medical records in 3 addition would be forwarded to the pathologist where 4 possible, correct? 5 DR. BARRY MCLELLAN: Correct. 6 MR. NIELS ORTVED: But as you I think 7 indicated earlier this week, the written record is not a 8 replacement for thorough verbal communication. 9 DR. BARRY MCLELLAN: That -- that's 10 correct. And it -- it -- I -- I appreciate that this is 11 confusing, but the protocol, just to be clear, is dealing 12 with the sudden and unexpected death of any child under 13 two (2). And when we're talking pediatric, you know, 14 there may be a child who is seven (7) or eight (8) years 15 of age. 16 So the -- the protocol we're talking about 17 at that time in 1995 was for deaths under the age of two 18 (2). It does not take away from the fact that in each and 19 every homicide and criminally suspicious case the 20 expectation is that the coroner would be comprehensive in 21 completing their warrant. 22 MR. NIELS ORTVED: Correct. And I think 23 that what you told us on Monday was, and I put it in 24 quotes, "There cannot be too much communication", correct? 25 DR. BARRY MCLELLAN: That's what I said
1901 and then Ms. Rothstein asked me a follow-up question to 2 that, yes. 3 MR. NIELS ORTVED: I'm -- I'm not going to 4 put Ms. Rothstein's question to you. 5 But the -- the point her is, and Dr. 6 Pollanen is the one who -- who clarified this, and that 7 is, as he told us on Monday, the pathologist should be 8 maximally informed to start with. 9 You agree with that? 10 DR. BARRY MCLELLAN: I do. 11 MR. NIELS ORTVED: And I gather from what 12 you told us on Monday that the current guideline is -- is 13 that not only should there be a medical history and 14 medical records, but even things such as Children's Aid 15 Society records, correct? 16 DR. BARRY MCLELLAN: Correct. 17 MR. NIELS ORTVED: So, coming then to the 18 list of systemic issues, or possible systemic issues, and 19 specifically Item Number 50: 20 "What information should be made 21 available to each [and that is the 22 coroner and the pathologist] to -- to 23 best discharge those roles?" 24 I think that you would agree that you would 25 urge upon the Commissioner that he consider a
1911 recommendation that there be communication with the 2 pathologist in these complex cases, correct? 3 DR. BARRY MCLELLAN: Well, I would agree, 4 and, in fact, that is in place as of April of '07, as far 5 as a memo from the office. 6 MR. NIELS ORTVED: Yes, but just because 7 it's a memo from the office, Dr. McLellan -- you have to 8 understand that the Commissioner is going to be looking at 9 all of these guidelines that have been emanating out of 10 the Office of the Chief Coroner; some of them as recently 11 as this month or last month, correct? 12 DR. BARRY MCLELLAN: I assume so, yes. 13 MR. NIELS ORTVED: Well, we -- we got one 14 here this week that -- that was only issued last month, 15 correct? 16 DR. BARRY MCLELLAN: I -- I don't in fact 17 that. I have no reason to dispute that. 18 MR. NIELS ORTVED: I thought the 19 Commissioner's comment was that this was "hot off the 20 press". Do you recall that document? 21 COMMISSIONER STEPHEN GOUDGE: That was our 22 press, not their press. 23 MR. NIELS ORTVED: Oh. 24 COMMISSIONER STEPHEN GOUDGE: It was 25 brought in here by Ms. Hogan.
1921 DR. BARRY MCLELLAN: I recall it was warm 2 because it came off the photocopier. I thought that was 3 the context for the question. 4 COMMISSIONER STEPHEN GOUDGE: Yeah. 5 DR. BARRY MCLELLAN: For the comment. 6 7 CONTINUED BY MR. NIELS ORTVED: 8 MR. NIELS ORTVED: But the point -- the 9 point is that the -- the Commissioner is going to be 10 looking at all of these guidelines to decide what, in his 11 view, are appropriate recommendations for the optimal 12 system going forward. 13 Fair enough? 14 DR. BARRY MCLELLAN: I understand. 15 MR. NIELS ORTVED: The document that was 16 produced for us on Monday was, "Guidelines on Autopsy 17 Practice for Forensic Pathologists" dated October 2007. 18 You recall getting that? 19 DR. BARRY MCLELLAN: I do. 20 MR. NIELS ORTVED: So, back to my 21 recommendation in relation to Item Number 50, What 22 information should be made available to the -- to the 23 coroner and to the pathologist to best discharge those 24 roles? 25 I'm suggesting to you that a -- a potential
1931 recommendation here is that there be communication with 2 the pathologist in these complex cases on the part of the 3 coroner? 4 DR. BARRY MCLELLAN: I certainly agree 5 with that, and it's consistent with what we put in place 6 earlier this year. 7 MR. NIELS ORTVED: Correct. That it be 8 comprehensive? 9 DR. BARRY MCLELLAN: Agree. 10 MR. NIELS ORTVED: And that it be early? 11 DR. BARRY MCLELLAN: Agree. 12 MR. NIELS ORTVED: Thank you. So, now I 13 want to come to -- to the post-mortem examination and, to 14 some extent, this bridges into what Dr. Pollanen told us 15 Monday. 16 But Dr. Pollanen indicated that -- that in 17 many of these -- in the ideal case, it would be preferable 18 for even the pathologist to visit the scene. 19 Do you recall that evidence? 20 DR. BARRY MCLELLAN: Yes. In certain 21 circumstances that it would be beneficial, yes. 22 MR. NIELS ORTVED: Correct. Typically, 23 information comes to the pathologist from the police in 24 these criminally suspicious cases? 25 DR. BARRY MCLELLAN: Yes.
1941 MR. NIELS ORTVED: And from the coroner, 2 as we've just discussed? 3 DR. BARRY MCLELLAN: Yes. 4 MR. NIELS ORTVED: From medical records, 5 as we've discussed -- 6 DR. BARRY MCLELLAN: Yes. 7 MR. NIELS ORTVED: -- if they're 8 available? 9 And the fact that a pathologist would wish 10 to know the medical history of a -- a deceased, as 11 revealed by the medical records, does not come as any 12 surprise to you? 13 DR. BARRY MCLELLAN: No. 14 MR. NIELS ORTVED: And the purpose, 15 clearly, is so that the pathology correlates to the 16 clinical conditions, correct? 17 DR. BARRY MCLELLAN: Correct. And to 18 assist the pathologist with their entire autopsy and 19 conclusion. 20 MR. NIELS ORTVED: Correct. And you're 21 aware that police frequently attend the actual autopsy? 22 DR. BARRY MCLELLAN: Correct. 23 MR. NIELS ORTVED: And you also know from 24 your own experience, Dr. McLellan, that this is a 25 potential source of problem?
1951 DR. BARRY MCLELLAN: I -- I need you to be 2 a bit more specific. 3 MR. NIELS ORTVED: Well, I guess putting 4 it succinctly, you don't want the police making decisions 5 about charges based on things that may be said in the 6 course of an autopsy, without fully understanding exactly 7 what it is that is attempting to be communicated? 8 DR. BARRY MCLELLAN: I agree, and that's 9 certainly the reason for the Early Case Conference. 10 MR. NIELS ORTVED: And I'm going to come 11 to the Early Case Conference, but I want to do something 12 first, because I think it was under your aegis that the 13 practice of issuing any kind of pending or preliminary 14 reports was discontinued? 15 DR. BARRY MCLELLAN: It was the 16 preliminary report not pending. 17 MR. NIELS ORTVED: Okay. So I'm mixing up 18 the terminology, but -- but there -- there have been 19 practices in the past where preliminary reports have been 20 issued, correct? 21 DR. BARRY MCLELLAN: Correct. 22 MR. NIELS ORTVED: And that can lead to a 23 source of confusion, correct? 24 DR. BARRY MCLELLAN: Correct. 25 COMMISSIONER STEPHEN GOUDGE: These are by
1961 pathologists? 2 DR. BARRY MCLELLAN: Yes, pathologists in 3 the past, some would issue a preliminary autopsy report, 4 and then subsequently issue a final autopsy report. And I 5 put a stop to this practice. 6 COMMISSIONER STEPHEN GOUDGE: When 7 preliminary, and when final? Prior to the histology for 8 the preliminary or something? 9 DR. BARRY MCLELLAN: The preliminary could 10 be issued within days to weeks, and prior to histology, 11 prior to toxicology. It was a variable practice, and it's 12 one that concerned me, and I put a stop to it, 13 Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: Roughly 15 when? 16 DR. BARRY MCLELLAN: It's a specific memo. 17 I suspect that someone in the room here can draw my 18 attention to it. It would -- 19 COMMISSIONER STEPHEN GOUDGE: If you could 20 give us a date, Mr. Gover? 21 MR. BRIAN GOVER: I can. September 29th, 22 2003. It's PFP032397. 23 COMMISSIONER STEPHEN GOUDGE: Thank you. 24 25 CONTINUED BY MR. NIELS ORTVED:
1971 MR. NIELS ORTVED: So -- and really what 2 we're talking about here is -- is that there can be a 3 change in -- in the conclusion as to, I guess both cause 4 and manner of death between the time of the autopsy and -- 5 and the final autopsy report? 6 DR. BARRY MCLELLAN: Yeah. What I would 7 have some dispute with was conclusion. There may be an 8 opinion at the time with respect to cause of death or -- 9 or manner of death. The conclusion wouldn't be reached 10 until the end of the investigation. 11 But it could be that an early impression or 12 opinion with respect to cause of death would subsequently 13 change as further information becomes available. 14 MR. NIELS ORTVED: That's better put. And 15 -- and coming back to my questions concerning the police, 16 you really -- you don't want charges being laid on the 17 basis of an opinion if it's going to ultimately be changed 18 to be benign as opposed to criminally suspicious? 19 DR. BARRY MCLELLAN: Certainly you 20 wouldn't want a police officer to have an impression that 21 something is criminally suspicious, lay a charge, and find 22 out later that it's not, unless -- you know, police 23 officer needs to understand what the pathologist does and 24 does not know at that particular time, and then base 25 whatever they're going to do for their criminal
1981 investigation and charges with that information. 2 MR. NIELS ORTVED: So then coming to our 3 list of systemic issues, on page number 7, under the 4 heading "The Role of the Police," specifically 5 recommendation number 54, -- 6 COMMISSIONER STEPHEN GOUDGE: These aren't 7 really recommendations, Mr. Ortved. 8 MR. NIELS ORTVED: You know, I -- I get 9 into trouble characterizing things. It's -- it's a 10 preliminary list of possible systemic issues. 11 COMMISSIONER STEPHEN GOUDGE: We'd all 12 pack up and go home if you were right. 13 14 CONTINUED BY MR. NIELS ORTVED: 15 MR. NIELS ORTVED: So coming to the -- 16 this preliminary list, we have, as Number 54: 17 "Should there be guidelines concerning 18 the information the police provide to 19 and receive from the pediatric forensic 20 pathologist during and following the 21 death investigation." 22 And -- and I think that your -- you have 23 just told us you have views on that. You don't want 24 information being communicated to the police that's of the 25 -- that has other than an air of certainty to it?
1991 DR. BARRY MCLELLAN: I'm just reading this 2 very carefully. The first half is concerning the 3 information police provide to. Dr. Pollanen addressed 4 that during his testimony and would like to receive as 5 much relevant information as possible from the police, and 6 if something is not important and relevant, it's the 7 pathologist who's responsible for filtering that out. 8 MR. NIELS ORTVED: Correct. 9 DR. BARRY MCLELLAN: So the other half of 10 this is guidelines with respect to the information police 11 receive from the pediatric forensic pathologist. The 12 police will be in attendance during the autopsy and the 13 memo that's been issued -- and I feel that that's what's 14 most important; you may or may not wish to take me to 15 this -- is that the police need to clearly understand that 16 if they're laying charges or proceeding based specifically 17 on information from the autopsy, the early case conference 18 is an opportunity to make sure that what is and is not 19 known is best understood by the police before making such 20 a decision? 21 MR. NIELS ORTVED: I think that's a fair 22 answer and -- and all I'm suggesting to you is that really 23 care has to be taken in terms of what's communicated to 24 the police at the time of the autopsy and prior to any one 25 of these case conferences which we're going to address.
2001 DR. BARRY MCLELLAN: Yes. 2 COMMISSIONER STEPHEN GOUDGE: Mr. Ortved, 3 I would just like to -- I know you were not focussing on 4 it but the first half of that issue, Number 54, that you 5 paused on, Dr. McLellan, I understood -- and, Dr. 6 Pollanen, correct me if I did not understand you properly. 7 I understood Dr. Pollanen to say, and I may 8 oversimplify it, the pathologist should learn everything 9 the police can tell him or her and then filter out what is 10 irrelevant. In other words it's the pathologist's role to 11 filter out the irrelevant 12 Do you agree with that or is there some 13 notion of guidelines on the police about things they 14 should and should not tell? 15 DR. BARRY MCLELLAN: I -- I would -- I 16 heard what Dr. Pollanen said yesterday; I agree with what 17 he said. Quite frankly the police are conducting a 18 parallel criminal investigation. What they tell the 19 pathologist at the time is obviously up to them but I 20 think what's most important is that the pathologist only 21 interpret what's important and relevant for he or she to 22 reach their opinion with respect to the cause of death. 23 COMMISSIONER STEPHEN GOUDGE: But from the 24 perspective of the death investigation team, the more that 25 is told the better; the irrelevance gets screened by the
2011 pathologist? 2 DR. BARRY MCLELLAN: I don't know how to 3 answer that, Commissioner. I -- I would like to think 4 that if there was a lot of irrelevant information it not 5 be given to the pathologist, that they be given 6 information that would be as relevant as possible. Should 7 something not be irrelevant, potentially misleading, I 8 would expect the pathologist to filter that out. 9 But in sharing information with the 10 pathologist at the time I'm not sure that I today have an 11 opinion from the coroner as to what the pathologist should 12 be telling -- what the police should be telling the 13 pathologist. It should generally be to advance the 14 pathologist's understanding so that he or she can reach 15 their conclusion at the end of their autopsy. I'm -- I'm 16 not sure I can add to that today. 17 COMMISSIONER STEPHEN GOUDGE: I mean, the 18 implication in the question is, is there any risk that 19 police will communicate information that will steer the 20 autopsy one way or the other? 21 DR. BARRY MCLELLAN: I would like to think 22 that the pathologist would be in the best position to 23 determine what is and is not important in reaching their 24 conclusion as to the cause of death. 25 COMMISSIONER STEPHEN GOUDGE: And I take
2021 it I understood you properly yesterday, Dr. Pollanen, you 2 would rely on the pathologist to screen out the 3 irrelevance and not be steered one way or the other? 4 DR. MICHAEL POLLANEN: Yes, Commissioner. 5 6 CONTINUED BY MR. NIELS ORTVED: 7 MR. NIELS ORTVED: Thank you, Mr. 8 Commissioner. So then coming to the report of the post- 9 mortem, Dr. McLellan. 10 We've discussed previously that it's the 11 coroner who has the legislative obligation to arrive at 12 conclusions concerning cause of death and -- and manner of 13 death, correct? 14 DR. BARRY MCLELLAN: Correct. 15 MR. NIELS ORTVED: And the pathologist is 16 effectively only providing that coroner with one aspect of 17 the investigation. 18 DR. BARRY MCLELLAN: The -- the 19 pathologist is providing very important information with 20 respect to the cause of death. 21 MR. NIELS ORTVED: But it's -- it's only 22 one (1) component of a coroner's overall investigation. 23 DR. BARRY MCLELLAN: There is other 24 information that the coroner must consider in answering 25 the five (5) questions.
2031 MR. NIELS ORTVED: And -- and in fact in 2 practice, what we've been told here by Dr. Pollanen on 3 Monday is that it was not the practice, certainly, in the 4 1990s in Ontario for the pathologist to provide 5 information concerning cause of death in an narrative 6 form. 7 You've heard that evidence. 8 DR. BARRY MCLELLAN: I did. 9 MR. NIELS ORTVED: And do you agree with 10 that? 11 DR. BARRY MCLELLAN: I do. 12 MR. NIELS ORTVED: Dr. Pollanen told us on 13 Monday that actually he would urge that this cause of 14 death be provided in a narrative form. 15 You heard that? 16 DR. BARRY MCLELLAN: Yes, in a 17 circumstance where it's going to advance the understanding 18 as to the cause of death. 19 MR. NIELS ORTVED: And -- and do you agree 20 with that? 21 DR. BARRY MCLELLAN: Yes. 22 MR. NIELS ORTVED: And then, as I 23 understand the material that -- that we've been given -- 24 and it's included in the institution report -- the -- 25 teaching, as I understand it, on the part of the Coroner's
2041 Office is that the standard of proof on the part of a 2 coroner in reaching a conclusion as to the manner of death 3 is a balance of probabilities. 4 DR. BARRY MCLELLAN: That's correct. Now, 5 there is further information that the coroner must 6 consider in reaching a conclusion that a death is the 7 result of suicide, but yes, in general, coroners make 8 their determinations based on the balance of 9 probabilities. 10 MR. NIELS ORTVED: And -- and it's -- it - 11 - in your experience, there have been circumstances where 12 the coroner has arrived at a different conclusion as to 13 cause of death than did the pathologist at first instance. 14 DR. BARRY MCLELLAN: Yes. It is not at 15 all common, but it does occur. 16 MR. NIELS ORTVED: And so going back to 17 our preliminary list of systemic issues -- and number 51 18 in particular -- the question put is: 19 "Should the dichotomy between cause of 20 death and means of death be preserved? 21 What role should the coroner and the 22 pathologist each play in their 23 determination?" 24 Can you tell -- 25 DR. BARRY MCLELLAN: Sorry?
2051 MR. MARK SANDLER: If it's of some 2 assistance, Mr. Ortved, that was supposed to read 3 "manner," as opposed to "means". 4 5 CONTINUED BY MR. NIELS ORTVED: 6 MR. NIELS ORTVED: Yeah, and I wondered if 7 the Commission staff were introducing a new concept. 8 so we -- we've been dealing with cause of 9 death and manner of death as set out in the Coroner's Act, 10 correct? 11 DR. BARRY MCLELLAN: Correct. 12 MR. NIELS ORTVED: And so, in terms of my 13 questions I've been talking about, the -- the pathologist 14 opining on cause of death and the coroner drawing a 15 conclusion concerning manner of death, correct? 16 DR. BARRY MCLELLAN: Correct. 17 MR. NIELS ORTVED: And so the question put 18 in -- in number 51 is: Should there be any change in the 19 respective roles? 20 Do you have a view on that? 21 DR. BARRY MCLELLAN: I think the current 22 system works very well. Now, it has come out in evidence 23 at this Inquiry that when a pathologist is reaching 24 certain conclusions as to cause of death, that, de facto, 25 that is leading to an opinion with respect to manner of
2061 death. 2 The current system, in my opinion, works 3 very well. I believe that it is dependent upon open lines 4 of communication between coroners and pathologists. 5 I indicated in my evidence that Dr. 6 Pollanen and I have discussed the issue of manner of death 7 in particular cases, and I have appreciated his opinion on 8 certain cases. And here we're talking about non-homicide 9 cases. 10 In my opinion, the current system works 11 very well. It may be that evidence is going to be heard 12 at this Inquiry of some potential improvement. But short 13 of hearing of a better mechanism of dealing with it in a 14 coroner system, I don't have any opinion with respect to 15 their being any change. 16 MR. NIELS ORTVED: Okay. Thank you. Now, 17 I want to turn to the -- 18 COMMISSIONER STEPHEN GOUDGE: Can I just 19 ask while we're at that point, Mr. Ortved, would you see 20 it to be a retrogressive step, Dr. McLellan, for the 21 coroner to be required to accept the pathologist's 22 conclusion on cause of death? 23 DR. BARRY MCLELLAN: I -- I have a very 24 open mind to such things and I think that one of my 25 phrases is I think one should do whatever makes the most
2071 sense. And if there are very good reasons that are 2 brought forward through this Inquiry at other times in the 3 future for there to be a change, I think they should be 4 considered. 5 Right now, I believe the system works very 6 well. If there are options to improve the system in 7 future, I think they should be considered and if changes 8 are appropriate, they should be made. 9 COMMISSIONER STEPHEN GOUDGE: Thank you. 10 11 CONTINUED BY MR. NIELS ORTVED: 12 MR. NIELS ORTVED: So I want to turn to 13 the circumstance of a -- a potential criminal case. So 14 now, just to put this in context, Dr. McLellan, I'm 15 talking about a case where the police have elected that an 16 Information should be sworn and charges laid, correct? 17 DR. BARRY MCLELLAN: I understand. 18 MR. NIELS ORTVED: And I think that I'm 19 not being unfair when I say, in those circumstances the 20 coroner essentially steps aside for the time being? 21 DR. BARRY MCLELLAN: I don't agree that 22 the coroner steps aside, but I believe that in such 23 circumstances the role of the forensic pathologist in the 24 administration of justice is greater than that, in most 25 cases, than that of the coroner.
2081 2 (BRIEF PAUSE) 3 4 MR. NIELS ORTVED: My -- my recollection 5 of your evidence, I think yesterday, was that in your own 6 view you did not want to see the coroner interfering with 7 the police investigation. 8 DR. BARRY MCLELLAN: The coroner should 9 neither interfere with nor advance a criminal 10 investigation. 11 MR. NIELS ORTVED: Correct. And -- and 12 that, I infer to mean, that the coroner certainly plays a 13 very limited role. 14 DR. BARRY MCLELLAN: I -- I'm not sure 15 that I would say that the role is minimal, and I'm not 16 sure what stage of the investigation you're at here, so 17 maybe I don't understand your question, but the 18 legislative authority for ordering the autopsy is that or 19 the coroner. 20 MR. NIELS ORTVED: Correct. 21 DR. BARRY MCLELLAN: The coroner is 22 providing very important information to the pathologist. 23 MR. NIELS ORTVED: Correct. 24 DR. BARRY MCLELLAN: So perhaps I'm just 25 not clear as to at what stage of the investigation your
2091 question is relevant. 2 MR. NIELS ORTVED: So, just take that 3 scenario and -- and assume, for the purposes of my 4 question that the police have elected as a result of the 5 autopsy, that night, to lay a charge, then certainly on my 6 reading, everything I've seen in -- that's been produced 7 in this Inquiry, the coroner takes very much a backseat 8 from that point forward. 9 DR. BARRY MCLELLAN: The -- the coroner's 10 role is far less than that of the -- of the forensic 11 pathologist. The -- the concern I have with your words of 12 "step aside" is that even with those charging having been 13 laid, the coroner, in this case the regional supervising 14 coroner, will still arrange for a case conference. 15 So there still are responsibilities for the 16 coroner beyond, but as far as the individual case when it 17 comes to determination of cause of death, the testimony 18 that may be in Court, the role of the forensic pathologist 19 is far, far greater than that of the coroner. 20 MR. NIELS ORTVED: I actually don't think 21 that you and I are in disagreement here with one (1) 22 caveat and, that is, you talk about the regional 23 supervising coroner playing a role in the case conference; 24 well, that's -- that's in 2007. 25 DR. BARRY MCLELLAN: Because I -- I'm -- I
2101 wasn't aware that we were talking about a different time 2 frame through this line of questioning. 3 MR. NIELS ORTVED: Well, I -- lets -- 4 lets, for the purposes of this discussion, assume we're in 5 1998. The practice of case conferences was not common in 6 those days. 7 DR. BARRY MCLELLAN: Early case 8 conferences were not, I agree. 9 MR. NIELS ORTVED: And -- and in -- 10 assuming for the purposes of my question, we have a case 11 in the '90s and we have a case where the coroner has done 12 his or her investigation, has ordered the autopsy, as a 13 result of the autopsy the police have elected to lay a 14 charge, back in the '90s the coroner then effectively 15 stood aside while the prosecution went through the system. 16 I don't think that's an overstatement. 17 DR. BARRY MCLELLAN: Now, as far as the 18 administration of justice and the case going through the 19 Courts, I agree, the coroner had a very minimal role. 20 MR. NIELS ORTVED: Correct. And -- and in 21 fact the -- the coroner retained the responsibility to -- 22 to close his or her investigation as far as the Coroner's 23 Office was concerned, which is to say, ultimately, filing 24 a coroner's investigation statement, correct? 25 DR. BARRY MCLELLAN: Correct.
2111 MR. NIELS ORTVED: But -- but typically in 2 the scenario I've described, that would take place 3 following the conclusion of the criminal proceedings. 4 DR. BARRY MCLELLAN: The case would not be 5 closed until the criminal proceedings were over, and by 6 far, the majority of cases, you are correct. 7 MR. NIELS ORTVED: And what you've 8 confirmed to us is that from the point in time that the 9 charge is laid, the -- the critical component arising out 10 of the coroner's system, insofar as that ongoing 11 investigation is concerned, was the pathologist. 12 DR. BARRY MCLELLAN: Correct. 13 MR. NIELS ORTVED: And the -- the -- 14 typically in those types of cases the ongoing 15 communication was as between the police and the 16 pathologist? 17 DR. BARRY MCLELLAN: Correct. And I -- I 18 -- again, I -- I don't think we are necessarily 19 disagreeing on this, but there are still cases where the 20 coroner would obtain some information, may assist with 21 interpretation of a toxicology report of the context of 22 some other information that would be important. So 23 certainly, I agree that the role of the forensic 24 pathologist, in those cases, and the context in the 1990s 25 was far more important than that of the coroner when it
2121 comes to the administration of justice. 2 But the fact that the coroner would have no 3 involvement until the completion of -- of the case in this 4 system, I -- I don't agree with that, but in general 5 terms, I do agree with what you're saying. 6 MR. NIELS ORTVED: Thank you. And -- and 7 the communication between the -- the pathologist and the 8 police, should the matter then proceed to court, was 9 ultimately between the pathologist and -- and the Crown 10 prosecutor, correct? 11 DR. BARRY MCLELLAN: Correct. 12 13 (BRIEF PAUSE) 14 15 MR. NIELS ORTVED: And the -- one (1) of 16 the problems that flowed from that scenario, as I've just 17 discussed it with you, is the fact that the -- the coroner 18 may be able to provide assistance to the police, correct? 19 DR. BARRY MCLELLAN: I'm not sure in which 20 context you're talking about assistance to the police? 21 MR. NIELS ORTVED: Well in -- in terms of 22 the fact, simply stated, Dr. McLellan, that -- that the 23 coroner may have accumulated information concerning a case 24 which may be of assistance in terms of any ultimate 25 prosecution on the part of the police?
2131 DR. BARRY MCLELLAN: Well, the coroner 2 would not be advancing the criminal investigation. If in 3 fact the coroner had important information for the 4 pathologist with respect to the cause of death, he or she 5 would be sharing that with the pathologist so that they 6 had that important information. 7 If the coroner came into possession of 8 information that he or she thought might be important to 9 the police, for some other purpose of their investigation, 10 I would expect that he or she would bring it to the 11 attention of their regional supervising coroner, who would 12 then make a decision as to what to do with that 13 information. 14 MR. NIELS ORTVED: Well -- well that's -- 15 that's the point of the case conference, correct? 16 DR. BARRY MCLELLAN: That's one (1) 17 component of the case conference. 18 MR. NIELS ORTVED: But as we've discussed, 19 case conferences were not in a variable practice back in 20 the '90's? 21 DR. BARRY MCLELLAN: Correct, but that was 22 not the only route for communication to get from a coroner 23 to a regional supervising coroner. 24 MR. NIELS ORTVED: Well all I'm suggesting 25 to you is that there's -- there's the complete spectrum
2141 here of investigations. So, we have situations where 2 coroners have actually done quite a comprehensive 3 investigation in relation to a matter which ultimately 4 becomes a police prosecution; that -- that happens, and 5 has happened frequently. 6 DR. BARRY MCLELLAN: Correct. 7 MR. NIELS ORTVED: And it's unquestionably 8 important that the information gleaned by that coroner in 9 the course of his or her investigation get communicated to 10 the police? 11 DR. BARRY MCLELLAN: If the coroner has 12 information that would be important to the police, 13 recognizing that the police may also have a separate role 14 in advancing the coroner's investigation, then I would 15 expect that information would be in the hands of the 16 police likely through the regional supervising coroner. 17 MR. NIELS ORTVED: Of course it doesn't 18 have to be through the regional supervising coroner, does 19 it? 20 DR. BARRY MCLELLAN: It does not, but in 21 such a circumstance, because of the teaching that coroners 22 are not to be interfering with or advancing a criminal 23 investigation, if it's a difficult matter around a 24 criminally suspicious or homicide case, coroners would 25 usually be in contact with the regional supervising
2151 coroner for advice. 2 MR. NIELS ORTVED: All right. So then 3 fast forward to 2007, and we have these Case Conferences 4 that you've told the Commissioner about, and these 5 include, as you described them, they include the regional 6 supervising coroner, correct? 7 DR. BARRY MCLELLAN: They're usually 8 chaired by the regional supervising coroner. 9 MR. NIELS ORTVED: They -- they include 10 the pathologist? 11 DR. BARRY MCLELLAN: Usually, but not 12 always. 13 MR. NIELS ORTVED: They certainly include 14 the police? 15 DR. BARRY MCLELLAN: Usually, yes. 16 MR. NIELS ORTVED: They may include other 17 experts? 18 DR. BARRY MCLELLAN: Correct. 19 MR. NIELS ORTVED: And just on that topic, 20 these other experts, those -- those would frequently be 21 retained through the Coroner's Office? 22 DR. BARRY MCLELLAN: Correct. 23 MR. NIELS ORTVED: They don't include the 24 coroner and you've told us that you -- you're -- the 25 teaching is that it should be the Regional Supervising
2161 Coroner as opposed to the coroner who's at the case 2 conference, correct? 3 DR. BARRY MCLELLAN: They are usually 4 chaired by the Regional Supervising Coroner. The coroner 5 is in attendance on occasion but it is uncommon. 6 MR. NIELS ORTVED: There's no mystery to 7 this, Dr. McLellan. It's just another filter to the 8 information that might otherwise get communicated directly 9 to the police if it has to go to the Regional Supervising 10 Coroner, correct? 11 DR. BARRY MCLELLAN: Yeah, the -- the fact 12 that it's chaired by the Regional Supervising Coroner is, 13 in large part, due to the fact that these take a lot of 14 time. The Regional Supervising Coroner will make himself 15 or herself available. The investigating coroner is 16 frequently unable to attend and that has been the practice 17 that they have been chaired by the Regional Supervising 18 Coroner or on occasion the Deputy Chief Coroner. 19 MR. NIELS ORTVED: So you're -- you're not 20 going to go so far as to say that you think that it might 21 be advisable to have the coroner in attendance unless the 22 Regional Supervising Coroner doesn't think it's 23 appropriate? 24 DR. BARRY MCLELLAN: The -- the goal here 25 is to ensure optimal communication around the
2171 investigation and there's been a number of different 2 strategies over the years. There were ways of 3 communicating information amongst members of the Death 4 Investigation Team in the 1990s before the development of 5 the early case conference. 6 The goal here is to ensure optimal 7 communication around the case as early as possible. The 8 Regional Supervising Coroner should have all of the 9 relevant information from the investigating coroner at 10 that time to be able to ensure appropriate communication 11 at the early case conference. 12 COMMISSIONER STEPHEN GOUDGE: Is there a 13 norm, Dr. McLellan, as to when this should happen in 14 today's world and then I'm going to ask you the same 15 question about the '90s? 16 DR. BARRY MCLELLAN: Yeah, the -- the memo 17 that I issued around early case conferencing which is in 18 the investigation -- 19 COMMISSIONER STEPHEN GOUDGE: Yes? 20 DR. BARRY MCLELLAN: --- manual talks 21 about, you know, trying to do this within the first few 22 weeks. 23 COMMISSIONER STEPHEN GOUDGE: First few 24 weeks? 25 DR. BARRY MCLELLAN: Of the -- following--
2181 COMMISSIONER STEPHEN GOUDGE: Of the death 2 investigation? 3 DR. BARRY MCLELLAN: Correct. 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 DR. BARRY MCLELLAN: And optimally these 6 are done in the first few days. 7 Now, it's frequently not possible to do 8 that. It's also frequently not value added to do so, each 9 case is different. 10 COMMISSIONER STEPHEN GOUDGE: Would the 11 autopsy have to be completed in order to do a proper early 12 case conference? 13 DR. BARRY MCLELLAN: Yes. 14 COMMISSIONER STEPHEN GOUDGE: And then 15 what about the '90s? 16 DR. BARRY MCLELLAN: Well, in the '90s it 17 would be very uncommon to have had one (1) of these early 18 case conferences. So, there was still communication 19 between the various members of the Death Investigation 20 Team; the Regional Coroner would be communicating with the 21 coroner; may have a conference call. It wasn't formalized 22 and it wasn't 23 encouraged to the level that it was following the memo 24 that was issued. 25 COMMISSIONER STEPHEN GOUDGE: So that's
2191 the first institutional encouragement, if you like, of 2 early case conferences? 3 DR. BARRY MCLELLAN: Correct. 4 COMMISSIONER STEPHEN GOUDGE: Thank you. 5 Thanks, Mr. Ortved. 6 7 CONTINUED BY MR. NIELS ORTVED: 8 MR. NIELS ORTVED: Thank you, Mr. 9 Commissioner. But the individual whom you have indicated 10 is not always in attendance is the Crown, correct? 11 DR. BARRY MCLELLAN: Correct. It's -- 12 it's very unusual for the Crown to be present. 13 MR. NIELS ORTVED: And I think that you 14 and I are probably on the same page in suggesting that it 15 would be helpful if the Crowns were present more 16 frequently? 17 DR. BARRY MCLELLAN: I'm not sure we 18 actually are on the same page there. It should be value 19 added. At this stage of the investigation for most of the 20 case conferences that I've been in attendance, it would 21 not have been value added for the Crown to be there. So I 22 -- I don't -- I don't agree with you. 23 MR. NIELS ORTVED: Well, should a case 24 proceed to court - as many of the cases with which we are 25 here concern did - it's the Crown who is ultimately
2201 responsible for leading the case, correct? 2 DR. BARRY MCLELLAN: Correct. 3 MR. NIELS ORTVED: And the case 4 conference, as you've described them in your evidence, is 5 a way to ensure that everyone understands firsthand the 6 ingredients of the investigation, correct? 7 DR. BARRY MCLELLAN: "Everyone" might be 8 too general a word. It certainly is the death 9 investigation team and when I've identified the members of 10 the death investigation team previously, the Crown hasn't 11 been on that list. So this is at a stage where a death 12 investigation is being conducted, often at the very early 13 stages, and it's been very unusual, in my experience, that 14 Crown has been present at the early case conference. 15 MR. NIELS ORTVED: Well, I know it's 16 unusual because that's what your institutional report 17 says, but I'm canvassing that with you because, surely, 18 you agree that it's important that if the Crown is going 19 to lead a criminal prosecution and it is premised on the 20 evidence of the pathologist, that the Crown know the 21 limits of that opinion. 22 DR. BARRY MCLELLAN: And certainly I'm not 23 trying to de-emphasis the importance of communication with 24 the Crown. Ultimately, be it between the police and the 25 Crown, or the pathologist and the Crown, that's different
2211 than early attendance at a case conference at the time 2 that a death investigation is underway. 3 MR. NIELS ORTVED: Well, as I understand 4 the institutional report, these case conferences aren't 5 limited to this early phase in the death investigation. 6 DR. BARRY MCLELLAN: Right, so certainly 7 later in the day when there are case conferences I have 8 seen Crowns participate in later case conferences and many 9 of those it has been value-added, but I had thought your 10 line of questioning was around the early case conference. 11 MR. NIELS ORTVED: I'm talking about case 12 conferences generally, and -- and I don't want to exclude 13 early case conferences because it's -- it sometimes as a 14 result of an early case conference that a charge is laid, 15 correct? 16 DR. BARRY MCLELLAN: It may well be that 17 the police leave with information and lay a charge. The 18 later case conferences that I believe occur are 19 predominantly those that would involve the Crown, the 20 forensic pathologist, perhaps the police. 21 By that point the contribution of the 22 coroner is usually completed and whether or not they're 23 called case conferences, or conferences, or discussion, I 24 don't want to, again, suggest that such communication is 25 not important, but at that point it's not at the time when
2221 there's an early death investigation going on. 2 MR. NIELS ORTVED: Well, looking at the 3 preliminary list of possible systemic issues, and number 4 58 in particular, 5 "should the Crown have a role in 6 evaluating the accuracy and reliability 7 of pediatric forensic pathology 8 evidence." 9 Just stopping there, the answer is, yes, 10 correct? 11 DR. BARRY MCLELLAN: I -- I really think 12 that's a better question to put to Crown counsel than to a 13 coroner with respect to the role of the Crown in dealing 14 with a criminal investigation and prosecution. 15 MR. NIELS ORTVED: So, you don't have a 16 view on this? 17 18 (BRIEF PAUSE) 19 20 DR. BARRY MCLELLAN: I think it's 21 important that the Crown have early communi -- well, have 22 communication with the forensic pathologist with respect 23 to the results of the autopsy and that there's a 24 discussion between the Crown and the pathologist so that 25 it's clear what the medical evidence is, what the
2231 conclusion is with respect to cause of death. But with 2 respect to the accuracy and reliability of pathology, the 3 "evidence" is the word there that concerns me, because 4 that can go to issues of evidence in court where that 5 would obviously fall directly under the expertise of the 6 Crown; the general term of "evidence." 7 So it's not that I'm questioning the actual 8 question here, but it's not entirely clear to me what's 9 being asked. 10 MR. NIELS ORTVED: Well, I'm suggesting to 11 you that one (1) of the issues that arrises from these 12 cases and which -- in respect of which the Commissioner 13 might want to consider making a recommendation is -- is 14 ensuring that the Crown understands the nature and the 15 limits of the forensic pathology evidence that may be 16 offered? 17 DR. BARRY MCLELLAN: Right. So I think 18 that this is -- is a matter that is more appropriately 19 addressed by Crowns. 20 And to go back to your earlier line of 21 questioning, the relationship at this particular point is 22 with forensic pathologists who have the expertise in 23 forensic pathology and in the area of expert testimony as 24 it relates to forensic pathology. 25 So I think that the question would probably
2241 be better put to the Crowns. 2 MR. NIELS ORTVED: Well, let me put it to 3 Dr. Pollanen, because I think, Dr. Pollanen, if you were 4 to be called as an -- as an expert witness in a criminal 5 prosecution, you would want the Crown attorney to 6 understand, clearly, the nature and limits of your 7 opinion, correct? 8 DR. MICHAEL POLLANEN: I would endeavour 9 to explain those limits and scope to the Crown, yes. 10 MR. NIELS ORTVED: Correct. And -- and 11 having regard to the architecture that we've heard 12 described here, which includes case conferences, an 13 opportunity to do that may be in the context of the case 14 conference? 15 DR. MICHAEL POLLANEN: Well that's a very 16 different matter. Because the -- the way the cr -- the 17 pathologist interacts with the prosecution service is 18 variable. 19 And it typically, and in the best 20 circumstances, involves a meeting with the Crown to review 21 the evidence prior to presentation in court. And that 22 process is partially educational, and it's partially case 23 management related. 24 But that is quite different from early case 25 conferencing which is meant more as an investigative
2251 adjunct. And as a way of identifying, for example, what 2 exhibits will be prioritized for testing in The Centre of 3 Forensic Science. 4 It really is too early in the evolution of 5 the case in the criminal justice system to have the Crowns 6 involved at that time. 7 There are some circumstances where that 8 might be appropriate, but -- but generally speaking, the 9 pathologist interacts with the Crown much later on in the 10 process. 11 COMMISSIONER STEPHEN GOUDGE: Is that 12 optimal, Dr. Pollanen? 13 DR. MICHAEL POLLANEN: It really is 14 dependent on the nature of the case. I don't think there 15 are any straightforward rules that apply on that point. 16 And largely because the -- the case evolves at different 17 rates at different times. 18 And the autopsy, as we've indicated before, 19 is a very early event. And in -- in some circumstances 20 there may be nothing known about the case. The bod -- 21 body may be found with little -- little information. And 22 it takes time to develop the case. 23 So clearly in that circumstance, there 24 would be no value in having a Crown attorney in the very 25 early instances.
2261 Now the -- the police may choose for their 2 purposes to interact with the Crown, but for the 3 pathologist to interact with the Crown in the greater 4 group would not be a value added at that point, in my 5 view. 6 COMMISSIONER STEPHEN GOUDGE: I guess what 7 I was getting at is one could make the case, I suppose, 8 that the autopsy report ought to speak for itself and be 9 sufficiently clear that a Crown attorney could understand 10 precisely what the pathologist's thinking was on the cause 11 of death. 12 On the other hand, one might also say the 13 pathologist might have a greater level of comfort in 14 ensuring the proper communication, not his or her thought 15 process, by some kind of meeting soon after the autopsy 16 report with the responsible Crown, if one had been 17 assigned. 18 DR. MICHAEL POLLANEN: I agree with that, 19 yes. 20 COMMISSIONER STEPHEN GOUDGE: Agree with 21 what; the second alternative? 22 DR. MICHAEL POLLANEN: I -- I agree that - 23 - the -- the point here is I think the -- the thing that 24 we're missing in this -- all this bench-marking is that 25 the report may be issued before the case conference; that
2271 eventually happens with the Crown. Or, if it's an early 2 case conference, the autopsy report may not yet have been 3 finalized. 4 So the -- it depends upon the goal of the 5 case conference and where it is in relation to the 6 prosecution. In many circumstances or the common 7 circumstance now, it would be that the pathologist would 8 have produced the report with a narrative opinion, so the 9 Crown would be maximally informed of the issues. And then 10 that would facilitate a very directed interaction between 11 the prosecutor and the pathologist in the pretrial meeting 12 or the meeting prior to the preliminary inquiry. 13 I guess the point that I'm trying to make 14 here -- it's not as simple as bench-marking the -- the 15 criminal justice process or the investigation process, and 16 saying at this point in time, these individuals should 17 interact here, but not here. It -- it very much is -- is 18 dependent on how the case evolves. And -- and the proper 19 roles at different times are determined largely by that. 20 21 CONTINUED BY MR. NIELS ORTVED: 22 MR. NIELS ORTVED: You wouldn't want a 23 case to go forward without the Crown being aware of your 24 opinion. 25 DR. BARRY MCLELLAN: Correct.
2281 MR. NIELS ORTVED: Thank you. 2 COMMISSIONER STEPHEN GOUDGE: Good place 3 to stop, Mr. Ortved? 4 MR. NIELS ORTVED: It is, Mr. 5 Commissioner. 6 COMMISSIONER STEPHEN GOUDGE: I propose 7 tomorrow -- I just, for my own reasons, I've a doctor 8 appointment -- to start at quarter to 10:00, if that is 9 all right? We will, I hope, make up the time tomorrow if 10 we have to. I suspect we will be able to. 11 So, we will rise now until quarter to 10:00 12 tomorrow morning. Thank you. 13 14 (WITNESSES RETIRE) 15 16 --- Upon adjourning at 4:32 p.m. 17 18 Certified Correct, 19 20 21 22 ___________________ 23 Rolanda Lokey, Ms. 24 25