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 15th 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 20 Paul Cavalluzzo ) Ontario Crown Attorneys' 21 Association 22 23 Mara Greene ) Criminal Lawyers' 24 Breese Davies ) Association 25 Joseph Di Luca )
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 Julian Falconer ) 17 18 Suzan Fraser Defence for Children 19 International - Canada 20 21 William Manuel ) Ministry of the Attorney 22 Heather Mackay ) General for Ontario 23 Erin Rizok (np) ) 24 25
41 APPEARANCES (cont'd) 2 3 Natasha Egan (np) ) College of Physicians and 4 Carolyn Silver ) Surgeons 5 6 Michael Lomer (np) For Marco Trotta 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 4 5 MICHAEL SVEN POLLANEN, Resumed 6 BARRY MCLELLAN, Resumed 7 8 Continued Cross-examination by Mr. Niels Ortved 7 9 Cross-Examination by Mr. Peter Wardle 40 10 Cross-Examination by Mr. Louis Sokolov 104 11 Cross-Examination by Ms. Mara Greene 126 12 Cross-Examination by Mr. Julian Falconer 141 13 Cross-Examination by Ms. Suzan Fraser 182 14 Cross-Examination by Mr. William Manuel 198 15 Cross-Examination by Mr. William Carter 199 16 Cross-Examination by Mr. James Lockyer 222 17 18 19 Certificate of transcript 247 20 21 22 23 24 25
61 --- Upon commencing at 9:44 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Mr. Ortved, 6 whenever you're ready. You have about forty-five (45) 7 minutes. 8 MR. NIELS ORTVED: Thank you, Mr. 9 Commissioner. 10 11 (BRIEF PAUSE) 12 13 MR. NIELS ORTVED: And just to confu -- 14 just to clarify something, Mr. Commissioner, yesterday, I 15 think in response to an observation you made, I was 16 referring to this list of what I understood to be a 17 preliminary list of possible systemic issues which -- a 18 copy of which I had -- was dated in September, but I 19 understand that the copy that you have and that we were 20 referring to I think properly speaking yesterday, is 21 dated November 12 and it's entitled simply, "List of 22 Systemic Issues." 23 COMMISSIONER STEPHEN GOUDGE: Thank you. 24 25 MICHAEL SVEN POLLANEN, Resumed
71 BARRY MCLELLAN, Resumed 2 3 CONTINUED CROSS-EXAMINATION BY MR. NIELS ORTVED: 4 MR. NIELS ORTVED: So, gentlemen, good 5 morning; Dr. McLennan, Dr. Pollanen. 6 Dr. Pollanen, I'd like to direct a few 7 questions to you if I might and some of these I think 8 will not be troublesome for you in terms of answering 9 first. Forensic pathology, as you told us many times 10 this week, is a challenging discipline. 11 DR. MICHAEL POLLANEN: It is. 12 MR. NIELS ORTVED: And pediatric forensic 13 pathology I think adds and additional dimension of 14 complexity. 15 DR. MICHAEL POLLANEN: Yes. 16 MR. NIELS ORTVED: And going back to some 17 of your evidence earlier in the week you will confirm 18 that forensic pathology generally is an interpretive 19 science? 20 DR. MICHAEL POLLANEN: Yes. 21 MR. NIELS ORTVED: And by that we mean, 22 as you've told the Commissioner, it's -- it's not a 23 science where you can reach mathematical certainty? 24 DR. MICHAEL POLLANEN: That's correct. 25 MR. NIELS ORTVED: And you -- you
81 illustrated that having regard to the -- to the Valin 2 case where -- where the pathologist who conducted the 3 autopsy in that case reviewed the anus and came to 4 certain conclusions, correct? 5 DR. MICHAEL POLLANEN: Yes. 6 MR. NIELS ORTVED: And that conclusion 7 was shared by a specialist, Dr. Zehr? 8 DR. MICHAEL POLLANEN: I'm not sure how 9 to apportion different opinions to individuals. My 10 understanding is that Dr. Rasaiah requested Dr. Zehr's 11 view on the case and asked her to attend the post-mortem 12 room to give a view on the anus. 13 MR. NIELS ORTVED: And Dr. Zehr's view 14 ,as you understand it, having regard to your extensive 15 research of that case, concurred with that of Dr. 16 Rasaiah? 17 DR. MICHAEL POLLANEN: My understanding 18 is that Dr. Rasaiah did make well defined opinions about 19 the anus with regard to its diameter and naked eye 20 appearance, but relied upon other experts for that. 21 MR. NIELS ORTVED: But in terms of the 22 conclusion that there had been anal penetration, that was 23 Dr. Rasaiah's conclusion? 24 DR. MICHAEL POLLANEN: Again, we'd have 25 to go back to the original record because I -- I'm not
91 certain that those conclusions were specifically of Dr. 2 Rasaiah's. 3 There were multiple issues around the 4 anus; one (1) was whether or not there was a laceration, 5 one (1) was whether it was dilated, the other related to 6 certain observations made on photographs, and this cul -- 7 culminated in the issue of whether there was acute anal 8 injury, chronic anal injury, or both. 9 And right now I -- I'm not certain -- my 10 memory is not sufficient to clearly differentiate which 11 expert believed which combination of opinions. 12 MR. NIELS ORTVED: Well, let's just keep 13 it simple and -- and stick with dilatation; Dr. Rasaiah 14 was of the view it was dilated. 15 DR. MICHAEL POLLANEN: That's my 16 recollection, but as I said I would have to go back to 17 the record to really see what Dr. Rasaiah said about the 18 anus. 19 MR. NIELS ORTVED: And your conclusion 20 was that it was very likely not dilated more than might 21 be accepted within the normal range? 22 DR. MICHAEL POLLANEN: Correct. 23 MR. NIELS ORTVED: Interpretive 24 conclusions, correct? 25 DR. MICHAEL POLLANEN: Opinions.
101 MR. NIELS ORTVED: Interpretive opinions, 2 correct? 3 DR. MICHAEL POLLANEN: Yes. Facts and 4 then using expert knowledge, you generate opinions and 5 between that there's an interpretation. 6 MR. NIELS ORTVED: Correct. And 7 similarly, as you've told us in your evidence, pediatric 8 forensic pathology -- forensic pathology generally -- are 9 evolving sciences? 10 DR. MICHAEL POLLANEN: Yes. 11 MR. NIELS ORTVED: The terminology you 12 used were -- was that the opinions are not, quote, 13 "frozen", closed quotes? 14 DR. MICHAEL POLLANEN: Knowledge is not 15 frozen. 16 MR. NIELS ORTVED: Knowledge is not fro - 17 - is not frozen. Answers may change with the growth of 18 knowledge. 19 DR. MICHAEL POLLANEN: Yes. 20 MR. NIELS ORTVED: And in that regard, I 21 think you've made specific reference to the phenomenon of 22 possible Shaken Baby Syndrome. 23 DR. MICHAEL POLLANEN: Yes. 24 MR. NIELS ORTVED: And that's an area of 25 controversy, I understand, even at this time, 2007.
111 DR. MICHAEL POLLANEN: Yes. 2 MR. NIELS ORTVED: But again, not to get 3 too complicated at this point in time, injuries that 4 might have been broadly considered to be indicative of 5 suspected homicide in the 1980s may in some circumstances 6 be viewed more skeptically in 2007. 7 DR. MICHAEL POLLANEN: Yes. 8 MR. NIELS ORTVED: And then in relation 9 to this area of science we also have the whole issue of 10 reports of other physicians, correct? 11 DR. MICHAEL POLLANEN: Well, certainly in 12 cases there may not be just one (1) expert involved. 13 MR. NIELS ORTVED: And -- and as the 14 pediat -- well, as the forensic pathologist, you've 15 given us examples already where you may place reliance on 16 the reports of other physicians, correct? 17 DR. MICHAEL POLLANEN: Yes. 18 MR. NIELS ORTVED: And an example, I 19 guess, might be a pediatric radiologist? 20 DR. MICHAEL POLLANEN: Yes. 21 MR. NIELS ORTVED: Who might interpret a 22 -- a CT Scan done during the time that the patient was 23 still alive? 24 DR. MICHAEL POLLANEN: Yes. The concept 25 here being that the autopsy is a multi-step process; the
121 first step is organising information that comes to you. 2 That information may be in the medical record. That 3 record will be created by other physicians; among one (1) 4 of them would be a pediatric radiologist. 5 MR. NIELS ORTVED: Sure. And -- and to 6 the extent that there are positive findings on the part 7 of that pediatric radiologist for instance, indicative of 8 subdural hemorrhage, or subarachnoid hemorrhage, those 9 are findings that you will want to take into account in 10 terms of your ultimate opinion. 11 DR. MICHAEL POLLANEN: Well, those were - 12 - those are findings that you would seek to either 13 confirm or deny at autopsy. 14 MR. NIELS ORTVED: Precisely. But these 15 opinions of other physicians run a spectrum, I think we 16 can say, between, for instance, the results of a CT scan 17 which we've just canvassed, which I think as far as 18 you're concerned, assuming the capability of the 19 radiologist, has a high degree of reliability? 20 DR. MICHAEL POLLANEN: Well, it's one (1) 21 -- it's one (1) piece of information that the pathologist 22 factors into the mix. 23 MR. NIELS ORTVED: And then also on that 24 spectrum, and I think we're going to be debating in the 25 course of the Inquiry where -- where it falls on that
131 spectrum, are opinions of clinicians? 2 DR. MICHAEL POLLANEN: Opinions of 3 clinicians are often present in cases of this type if the 4 child has been hospitalized, or the opinions are sought 5 by others during the death investigation. 6 MR. NIELS ORTVED: Correct. And -- and 7 taking for example, the issue of opinions by clinicians 8 in the course of -- of a -- of an infants hospitalization 9 prior to death, those, I take it -- the extent to which 10 they have to be factored into the forensic pathologist's 11 conclusions is controversial? 12 DR. MICHAEL POLLANEN: Well there's a lot 13 to say about it for certain. 14 MR. NIELS ORTVED: Right. And I think 15 that this is where you would apply your approach that 16 you've described to the Commissioner as being one of 17 having to filter the information? 18 DR. MICHAEL POLLANEN: Correct. 19 MR. NIELS ORTVED: Which I think again, 20 emphasises this point about the science being an 21 interpretive one, correct? 22 DR. MICHAEL POLLANEN: Certainly judgment 23 and interpretation goes to making good opinions. 24 MR. NIELS ORTVED: Correct. So then 25 coming to our list of systemic issues -- I think I'm
141 stating the obvious here; I think you have it there on 2 page number 1, item number 1: 3 "What training and ed -- what education 4 and training should be required for 5 those doing pediatric forensic 6 pathology in Ontario?" 7 It's -- there's really no dispute about 8 the fact that -- that the training should be in the area 9 of a) forensic pathology as opposed to just pathology, 10 correct? 11 DR. MICHAEL POLLANEN: Yes. 12 MR. NIELS ORTVED: And -- and to the 13 extent that it includes pediatrics, that also would be 14 beneficial? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. NIELS ORTVED: Now as far as the 17 actual post-mortem is concerned, Dr. Pollanen, you've 18 given a lot of evidence about this, and I'm not going to 19 review it in it's entirety, obviously, but I'm just going 20 to take some points out of it. 21 So first, you've -- you've made it clear 22 to the Commissioner that in your view there should be 23 firm guidelines? 24 DR. MICHAEL POLLANEN: Yes. 25 MR. NIELS ORTVED: And -- and actually
151 you've produced a set of those that we saw yesterday, 2 dated October 2007? 3 DR. MICHAEL POLLANEN: Yes, through a 4 collaborative process, the forensic pathology -- the 5 forensic pathologist in Ontario have produced the 6 guidelines, and I admittedly drafted them and -- and 7 initially supported their use, yes. 8 MR. NIELS ORTVED: Correct. And the -- 9 the -- what you've I think indicated is that you, as the 10 Chief Forensic Pathologist in Ontario, would like to 11 actually have the ability to designate which particular 12 forensic pathologist does an autopsy in a particular 13 case. 14 DR. MICHAEL POLLANEN: Well, I think 15 there are several dimensions to that. I mean, first of 16 all, I think it's highly desirable to have input from the 17 forensic pathology service on how autopsies are done and 18 by whom. But, as I've indicated, we work in a 19 collaborative system. 20 So, if, for example, you use a regional 21 model, which is the model that we have, there would be, 22 in my view, an opportunity for communication between the 23 Regional Supervising Coroner and, for example, the Chief 24 Forensic Pathologist or a Deputy Chief Forensic 25 Pathologist, to determine how best to manage the
161 pathologic aspects of the case. 2 But in the decision-making process, the 3 forensic pathologist would take the lead. 4 MR. NIELS ORTVED: Right. And -- and as 5 far as the philosophy that governs that post-mortem 6 examination, you agree with what we discussed with Dr. 7 McLellan yesterday that it should be an attitude to think 8 objectively. 9 DR. MICHAEL POLLANEN: Correct. 10 MR. NIELS ORTVED: And that, you -- you 11 agree would -- would be a -- a change from what prevailed 12 back in the '90s. 13 DR. MICHAEL POLLANEN: I think what 14 you're contrasting is "think objectively" to the other 15 phrase that has been used, which is "think dirty". 16 MR. NIELS ORTVED: Correct. 17 DR. MICHAEL POLLANEN: And what I would 18 say is I would prefer "think objectively" as the platform 19 embodying the concept of "search for the truth". 20 MR. NIELS ORTVED: Correct. And then 21 there's no controversy about this point because you've 22 told us this already, but I should confirm it with you. 23 You -- you actually think that the post-mortem report 24 should contain some narrative describing the thought 25 process on the part of the author to arrive at the cause
171 of death. 2 DR. MICHAEL POLLANEN: And other 3 forensically relevant issues. 4 MR. NIELS ORTVED: Correct. And that 5 would be a change from what prevailed in the 1990s? 6 DR. MICHAEL POLLANEN: Yes. A change, 7 generally. Having said that, as I've indicated, there 8 were some pathologists, notably for example, the 9 pathologists in the Hamilton Unit, that, by tradition, 10 made narrative opinions. 11 So the -- the practice was non-uniform 12 across the Province, in terms of providing narrative 13 opinions in the post-mortem report, but, generally 14 speaking, there would be a small amount of narrative. 15 COMMISSIONER STEPHEN GOUDGE: When you 16 say "narrative", Dr. Pollanen, do you mean the doctor 17 reciting what the pathologist did with the tests and so 18 on, or do you mean the thinking process that you were 19 talking about before; that is, the logical links from 20 facts to opinion? 21 DR. MICHAEL POLLANEN: Yes, Commissioner. 22 The expert opinion; the logical links between facts, the 23 arguments, the basis of the conclusion. 24 COMMISSIONER STEPHEN GOUDGE: So when the 25 Hamilton tradition was narrative, that's the tradition
181 you were referring to? They did that? 2 DR. MICHAEL POLLANEN: Yes, in -- there 3 was, again, variation in the Hamilton Unit -- 4 COMMISSIONER STEPHEN GOUDGE: Fair 5 enough. 6 DR. MICHAEL POLLANEN: -- by and large, 7 yes; that approach. 8 9 CONTINUED BY MR. NIELS ORTVED: 10 MR. NIELS ORTVED: And so, coming to our 11 list of systemic issues, and Item Number 27 in 12 particular: 13 "What guideline should there be for the 14 content of the post-mortem report?" 15 As we've just discussed, as far as you're 16 concerned, there should be something to in -- indicate 17 the thought process for these forensically significant 18 items. 19 DR. MICHAEL POLLANEN: Yes. 20 MR. NIELS ORTVED: So, then coming to the 21 review, you were very fair yesterday in indicating 22 certain of the, what you characterized as being 23 methodological weaknesses of that exercise. 24 DR. MICHAEL POLLANEN: Yes, I've listed 25 some.
191 MR. NIELS ORTVED: And, just so we're all 2 on the same page here: This review that was carried out 3 is not what one would typically see in an objective, 4 randomized quality assurance study? 5 DR. MICHAEL POLLANEN: Well, it's a 6 quality assurance study that's not randomized. 7 MR. NIELS ORTVED: It's a quality 8 assurance study relative to a specific individual. 9 DR. MICHAEL POLLANEN: Correct. And the 10 cases are not randomly selected. 11 MR. NIELS ORTVED: Correct. 12 DR. MICHAEL POLLANEN: There were a 13 series of criteria used to select the cases. 14 MR. NIELS ORTVED: And -- and, in fact, 15 the cases were pre-selected for possible problems? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. NIELS ORTVED: And -- and more than 18 that they were actually pre-reviewed by you among others? 19 DR. MICHAEL POLLANEN: Yes. Many of the 20 cases, in fact, had already been identified as having 21 issues through processes that had come before the review. 22 MR. NIELS ORTVED: Right. But other 23 cases were selected out of the entire cohort of cases of 24 -- of Dr. Smith and -- and identified as possibly 25 revealing problems?
201 DR. MICHAEL POLLANEN: Well -- well, the 2 construction was, if I just sort of sketch it out, the 3 Ontario pediatric forensic pathology Unit was created in 4 '91 and the inclusion criteria where criminally 5 suspicious cases and homicides from '91 onward in which 6 Dr. Smith made the post-mortem examination, but also 7 including those cases which came to him for expert 8 opinion. 9 MR. NIELS ORTVED: Correct. And -- and 10 you've describe the process. I don't think we have to 11 spend a lot of time on it. Those that -- through 12 possible problems were collected and circulated for 13 review by the review panel? 14 DR. MICHAEL POLLANEN: Well, certainly we 15 -- we created a subcommittee, devised a procedure, and we 16 brought the pathologist to Toronto -- 17 MR. NIELS ORTVED: Right. 18 DR. MICHAEL POLLANEN: -- to review the 19 cases. 20 MR. NIELS ORTVED: To -- to review the 21 forty-five (45) cases which had been pre-selected as 22 indicating possible problems? 23 DR. MICHAEL POLLANEN: Thirty-five (35), 24 because ten (10) were reviewed internally. The -- the 25 external review panel reviewed thirty-five (35).
211 MR. NIELS ORTVED: Okay. So let's go 2 back. Out of the cohort of Dr. Smith's cases, forty-five 3 (45) cases were selected that as far as the Committee was 4 concerned threw up possible problems, correct? 5 DR. MICHAEL POLLANEN: No, no. The -- 6 the Committee did not define the inclusion criteria. The 7 inclusion criteria were defined before the Committee 8 contemplated the methodology. 9 MR. NIELS ORTVED: Okay. So the -- the 10 Committee took those inclusion criteria and concluded 11 that these forty-five (45) cases might fit? 12 DR. MICHAEL POLLANEN: No. As I've 13 indicated, it was decided there was -- at the beginning 14 of the review, it was decided that the inclusion criteria 15 would be as I've indicated. Those forty-five (45) cases 16 were selected on that basis, and the subcommittee was 17 tasked with making a review process for those forty-five 18 (45) cases. The Committee did not decide on the forty- 19 five (45). 20 MR. NIELS ORTVED: And when you talk 21 about "The Committee," you're talking about the Forensic 22 Services Advisory Committee? 23 DR. MICHAEL POLLANEN: And the 24 subcommittee. 25 MR. NIELS ORTVED: And the subcommittee.
221 But then you, Dr. Pollanen, actually reviewed those 2 forty-five (45) cases and -- and prepared the spreadsheet 3 that was referred to yesterday referring to them, 4 correct? 5 DR. MICHAEL POLLANEN: That's correct, 6 yes. 7 MR. NIELS ORTVED: And -- and identified 8 the possible problems that might be found within them? 9 DR. MICHAEL POLLANEN: The issues, yes, 10 correct. 11 MR. NIELS ORTVED: And, as you've told 12 us, there was -- there was no control group for this 13 study? 14 DR. MICHAEL POLLANEN: Correct. 15 MR. NIELS ORTVED: It -- it was specific 16 to Dr. Smith's cases, cases in which he had been 17 involved, correct? 18 DR. MICHAEL POLLANEN: Yes. In fact a 19 subset of his larger total. 20 MR. NIELS ORTVED: Correct. And it 21 really -- it doesn't tell us how another pathologist, 22 similarly busy in the same field might fare, having 23 regard to a similar analysis over the same period of 24 time. 25 DR. MICHAEL POLLANEN: That analysis was
231 not done. 2 MR. NIELS ORTVED: And, we don't know how 3 another randomly selected pathologist might fare. 4 DR. MICHAEL POLLANEN: Well, we have some 5 notion of -- about how they might fare, yes, but we 6 haven't done the study to determine it. 7 MR. NIELS ORTVED: But what we -- what we 8 know, just from the evidence you've given here in 9 relation to the Valin case, that -- that there certainly 10 were -- there was, for instance, another pathologist who 11 made one of the same mistakes that you -- that the 12 committee concluded might possibly apply as far as Dr. 13 Smith's analysis was concerned, correct? 14 DR. MICHAEL POLLANEN: Well, certainly 15 there were -- there were multiple experts involved in the 16 Valin case and many of those experts, in retrospect, made 17 misinterpretations; it was not only, for example, Dr. 18 Smith. 19 MR. NIELS ORTVED: Right. And what 20 you've also been very fair, I think, in telling us is 21 that there was separation of cases for factors beyond Dr. 22 Smith's control. 23 DR. MICHAEL POLLANEN: Correct. 24 MR. NIELS ORTVED: And here we're talking 25 about those cases where, as you've indicated, knowledge
241 has grown. 2 DR. MICHAEL POLLANEN: For example, in 3 the infant head injury category. 4 MR. NIELS ORTVED: Right. And -- and so 5 the result of the independent review, in respect of 6 certain of these cases, was effectively predetermined, 7 wasn't it? 8 DR. MICHAEL POLLANEN: I'm not so certain 9 I could say it was predetermined, other than recognizing 10 that it was predictable that the cases that we inclu -- 11 some of the cases that were included had already been 12 identified as problematic. 13 For example, the Sharon case had already 14 been identified as problematic, but was included in the - 15 - the subset for review. So, in so far as the set -- the 16 forty-five (45) contained cases that have already been 17 identified as problematic, your statement is true. 18 And then there were cases that fell into 19 the shaken baby category or the infant head injury 20 category where similar issues could be predicted, and 21 that's recorded in the subcommittee minutes. 22 MR. NIELS ORTVED: Correct. 23 DR. MICHAEL POLLANEN: So while the -- 24 while the overall result of the review was not 25 predetermined, there were categories of cases where
251 issues had become apparent already. 2 MR. NIELS ORTVED: But ju -- just 3 sticking with the -- the Shaken Baby Syndrome cases, what 4 you told us yesterday is that these cases were being 5 circulated for review by -- by an expert panel of 6 international renown? 7 DR. MICHAEL POLLANEN: Yes. 8 MR. NIELS ORTVED: And -- and certainly 9 that panel -- those individuals -- you would expect would 10 be familiar with current thinking? 11 DR. MICHAEL POLLANEN: Yes. 12 MR. NIELS ORTVED: And you would expect 13 them to be familiar with the current thinking in relation 14 to Shaken Baby Syndrome. 15 DR. MICHAEL POLLANEN: Yes. 16 MR. NIELS ORTVED: And so to the extent 17 that those cases involved Shaken Baby Syndrome, you -- 18 you -- or I suggest to you, Dr. Pollanen, expecting that 19 those reviewers would indicate to you that there were 20 question marks about those cases. 21 DR. MICHAEL POLLANEN: That was 22 predictable, as I've indicated. 23 MR. NIELS ORTVED: Right. 24 DR. MICHAEL POLLANEN: Just perhaps to 25 enlarge on that, that was an issue that had already been
261 identified, for example, in the Goldsmith reviews in the 2 UK. This was not an issue that was novel to this review 3 or novel to Ontario; it is -- it flows out of this 4 increased understanding of -- of the issues related to 5 infant head injury. 6 MR. NIELS ORTVED: And so -- and -- and 7 as we know from the Goldsmith Review, to the extent that 8 problems or issues are raised about certain conclusions 9 and certain of these shaken baby cases regarding Dr. 10 Smith's opinions, you would -- well, you know that there 11 have been issues raised about similar opinions by other 12 pathologists elsewhere? 13 DR. MICHAEL POLLANEN: Yes. 14 MR. NIELS ORTVED: So then, coming to 15 your January 8, 2007 memorandum, and that is 032588, Mr. 16 Registrar. 17 COMMISSIONER STEPHEN GOUDGE: Do you or 18 Ms. Rothstein have a tab number for that? Mr. Centa 19 does, I'm sure. 20 MR. NIELS ORTVED: I do. 21 DR. BARRY MCLELLAN: Tab 108. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Dr. 23 McLellan. 24 25 CONTINUED BY MR. NIELS ORTVED:
271 MR. NIELS ORTVED: What you tell us in 2 the paragraph at the bottom of the first page there, Dr. 3 Pollanen, is that, in your view, at least at January 8th 4 of 2007, you thought that the terms of reference of the 5 review were too limiting and, therefore, the results of 6 the review are incomplete and possibly misleading. 7 I've read that correctly? 8 DR. MICHAEL POLLANEN: Correct. 9 MR. NIELS ORTVED: And -- and you explain 10 that in paragraph 79, if I am understanding your 11 evidence. And that's at page 15 of this. 12 So what you say in paragraph 79 is that: 13 "This [and I'm going to come back to 14 paragraph 78] raises the issue of 15 whether it is valid to draw definitive 16 conclusions about Dr. Smith's work 17 without a similar analysis of the death 18 investigation in these cases. To focus 19 attention on the pathology aspects of 20 the death investigation might lead to 21 an inappropriate perception that Dr. 22 Smith was functioning autonomously. 23 Dr. Smith was not functioning 24 autonomously. It would seem to be 25 inequitable to publicly disclose
281 shortcomings of Dr. Smith without 2 recognition that he worked in the 3 coroner system of death investigation 4 that has not been subjected to the same 5 level of scrutiny." 6 That was your opinion on January 8 of 7 2007? 8 DR. MICHAEL POLLANEN: Yes. 9 MR. NIELS ORTVED: And -- and you explain 10 that in the -- in the prior paragraph, paragraph 78, am I 11 correct? 12 DR. MICHAEL POLLANEN: It's a concept 13 that's developed across the memo, but -- 14 MR. NIELS ORTVED: But this -- this -- 15 DR. MICHAEL POLLANEN: -- certainly there 16 are elements in 78. 17 MR. NIELS ORTVED: Right. And what you 18 say is that: 19 "Since I have examined all the cases in 20 the Smith review, I suggest that some 21 deficiencies in Dr. Smith's work were 22 not isolated events that occurred 23 within perfect death investigations. I 24 suspect that in many of the cases with 25 errors, eg [certain cases are named]
291 the coroner's death investigation would 2 not stand up to the level of scrutiny 3 that Dr. Smith's work has been placed 4 under. Based on a provisional 5 assessment, there seemed to be three 6 (3) types of issues with the death 7 investigations in the problematic 8 cases." 9 And you list them. 10 Number 1: 11 "No substantive death investigation by 12 the corner with the investigation 13 relinquished to the police and the 14 pathologist." 15 Item Number 2: 16 "Incomplete and ineffective death 17 investigations that might have 18 otherwise found evidential 19 inconsistencies that cast doubt on Dr. 20 Smith's conclusions." 21 And Number 3: 22 "Problematic case management after the 23 autopsy, including questionable 24 decision-making or opinions by other 25 professionals beyond Dr. Smith."
301 Again, I've read that correctly? 2 DR. MICHAEL POLLANEN: Yes. 3 MR. NIELS ORTVED: And -- and you agree 4 that that was your opinion back on January 8th of this 5 year? 6 COMMISSIONER STEPHEN GOUDGE: Can I ask 7 what you meant by the second point there, Dr. Pollanen? 8 "Incomplete and ineffective death 9 investigations that might have 10 otherwise found evidential 11 inconsistencies." 12 Does that mean, had they been complete and 13 effective they might have found? 14 DR. MICHAEL POLLANEN: Yes. 15 COMMISSIONER STEPHEN GOUDGE: Thank you. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. NIELS ORTVED: 20 MR. NIELS ORTVED: And so, then, coming 21 to you, Dr. McLellan, what you told us yesterday is, I 22 think in fairness, that this is what prompted the review 23 that you asked to be undertaken on the part of Dr. 24 Edwards and Dr. Lauwers? 25 DR. BARRY MCLELLAN: Yes, that's correct.
311 Dr. Pollanen and I had discussed this in advance of him 2 sending the memo, but it was this concern that did lead 3 to me requesting the -- the review by Dr. Lauwers and 4 Edwards. 5 MR. NIELS ORTVED: And, Mr. Registrar, 6 I'm going to be referring to 137410. 7 COMMISSIONER STEPHEN GOUDGE: You've got 8 about ten (10) minutes, Mr. Ortved. Just to let you 9 know. 10 MR. NIELS ORTVED: I've got my eye on the 11 clock, Mr. Commissioner. 12 COMMISSIONER STEPHEN GOUDGE: Good. 13 DR. BARRY MCLELLAN: Do you have a Tab 14 number? 15 16 CONTINUED BY MR. NIELS ORTVED: 17 MR. NIELS ORTVED: No tab -- I don't have 18 a tab number, but I will. 19 DR. BARRY MCLELLAN: It's 109. 20 MR. NIELS ORTVED: Thank you very much. 21 So, as of the completion of the review and the receipt of 22 Dr. Pollanen's memorandum, Dr. McLellan, you -- you were 23 aware that this was something that required some 24 additional work on the part of -- of the Office of the 25 Chief Coroner?
321 DR. BARRY MCLELLAN: Correct. 2 MR. NIELS ORTVED: And at that point in 3 time, you had the option to arrange for either an 4 internal review or an external review, correct? 5 DR. BARRY MCLELLAN: Correct. 6 MR. NIELS ORTVED: And what you did was 7 you opted for an internal review? 8 DR. BARRY MCLELLAN: Correct. 9 MR. NIELS ORTVED: And what -- what you - 10 - what you did was to request to Regional Supervising 11 Coroners to undertake this study; Dr. Lauwers and Dr. 12 Edwards, correct? 13 DR. BARRY MCLELLAN: Correct. 14 MR. NIELS ORTVED: And these are -- these 15 were two (2) long-serving members, long-serving coroners? 16 DR. BARRY MCLELLAN: They had both been 17 coroners for a long period of time. I can't tell you 18 exactly how many years. 19 MR. NIELS ORTVED: But they had gone on 20 from serving as investigating coroners to becoming full 21 time staff members? 22 DR. BARRY MCLELLAN: Correct. 23 MR. NIELS ORTVED: They -- they were not 24 independent of the Coroner's office, we can agree with 25 that?
331 DR. BARRY MCLELLAN: I agree. 2 MR. NIELS ORTVED: And -- and their 3 study, just by definition, had to be a far cry from the 4 type of independent analysis conducted by a world 5 renowned panel of experts that reviewed Dr. Smith's 6 cases? 7 DR. BARRY MCLELLAN: It was not the same 8 level of review, and it was not conducted by external 9 reviewers. 10 MR. NIELS ORTVED: Not withstanding, what 11 they concluded was that -- and I'm looking at their 12 report -- that in eleven (11) cases insufficient 13 information was provided to Dr. Smith in those forty-five 14 (45) cases, correct? 15 DR. BARRY MCLELLAN: Correct. 16 MR. NIELS ORTVED: And looking at item 17 Number 3, what they indicated as well, was that there 18 were concerns about the coroner's actions in fifteen (15) 19 of those forty-five (45) cases? 20 DR. BARRY MCLELLAN: Correct. 21 MR. NIELS ORTVED: And so it -- they are, 22 I suggest to you, in effect, confirming Dr. Pollanen's 23 concerns expressed in paragraph 78 of his January 8th 24 report, that there were certainly imperfect coroner's 25 investigations in a number of these cases?
341 DR. BARRY MCLELLAN: Yes, I agree. 2 MR. NIELS ORTVED: And that's on the 3 basis of this internal review, correct? 4 DR. BARRY MCLELLAN: Correct. 5 MR. NIELS ORTVED: But what they went on 6 to say was that those concerns that they concluded 7 existed, in relation to those cases they reviewed, did 8 not impact Dr. Smith's conclusions in a single solitary 9 case? 10 DR. BARRY MCLELLAN: That was their 11 conclusion. 12 13 (BRIEF PAUSE) 14 15 MR. NIELS ORTVED: Drs. Lauwers and 16 Edwards are not pathologists. 17 DR. BARRY MCLELLAN: They are not. 18 MR. NIELS ORTVED: And, I suppose, 19 whether or not those imperfections might have impacted a 20 pathologist is somewhat difficult for them to say with 21 certainty? 22 DR. BARRY MCLELLAN: It certainly was 23 their opinion having conducted the review. I can't say 24 that others who reviewed the records may not come to 25 different conclusions.
351 MR. NIELS ORTVED: Correct. What we -- 2 what we can, at least, say for certain, based on their 3 conclusions, is that the pathologist in those cases was 4 not maximally informed as Dr. Pollanen has told us he 5 would like the pathologist to be, correct? 6 DR. BARRY MCLELLAN: I agree. 7 MR. NIELS ORTVED: So, there is -- as we 8 compare these two (2) studies -- and I'm talking about 9 the Smith review by the independent panel and the review 10 conducted by Drs. Lauwers and Edwards -- there is a 11 similarity that can be found between them, correct? 12 DR. BARRY MCLELLAN: I'm not sure I 13 understand the question, Mr. Ortved; if you could just 14 repeat it again? 15 MR. NIELS ORTVED: Well, the similarity 16 between them is that, in neither of those cases, was Dr. 17 Smith consulted? 18 DR. BARRY MCLELLAN: Dr. Smith was not 19 consulted in either of the two (2) reviews? 20 MR. NIELS ORTVED: Correct. 21 DR. BARRY MCLELLAN: Correct. 22 MR. NIELS ORTVED: And -- 23 COMMISSIONER STEPHEN GOUDGE: You just 24 have a couple of minutes, Mr. Ortved. 25 MR. NIELS ORTVED: Thank you.
361 CONTINUED BY MR. NIELS ORTVED: 2 MR. NIELS ORTVED: You're familiar with 3 the concept that we attempt to apply, which is to say 4 that you should have an opportunity to state your view 5 before adverse conclusions are reached concerning your 6 conduct? 7 DR. BARRY MCLELLAN: Am I familiar with 8 the concept that an individual, who may be subject to 9 criticism, should have an opportunity to present their 10 own views; is that...? 11 MR. NIELS ORTVED: Correct. 12 DR. BARRY MCLELLAN: I'm familiar with 13 the concept. 14 MR. NIELS ORTVED: It wasn't applied 15 here? 16 DR. BARRY MCLELLAN: Dr. Smith was not a 17 participant in either what's been referred to the -- as 18 the "Smith Review" or to this review conducted by the two 19 (2) coroners. 20 MR. NIELS ORTVED: Thank you. Those are 21 my questions. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 23 Ortved. I just have one (1) question arising out of 24 these two (2) documents so if anything flows from this, 25 Mr. Ortved, you can ask it.
371 In paragraph 78, the second concern you 2 raise, Dr. Pollanen, as I read it, is a proper death 3 investigation might have caught some of these concerns? 4 DR. MICHAEL POLLANEN: Yes. 5 COMMISSIONER STEPHEN GOUDGE: Which of 6 the questions in the summary in the Lauwers/Edwards 7 study, if any, capture that concern? 8 9 (BRIEF PAUSE) 10 11 DR. MICHAEL POLLANEN: It's difficult for 12 me to -- to interpret that. 13 COMMISSIONER STEPHEN GOUDGE: None jump 14 off the page at me, I guess is my concern -- my question. 15 DR. MICHAEL POLLANEN: Number -- Number 1 16 comes close in that the -- what I'm thinking of here is, 17 if there were critical observations made by the coroner 18 in the death investigation, for example, in their 19 analysis of the scene -- 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 DR. MICHAEL POLLANEN: -- that ultimately 22 were incompatible with the autopsy opinion, then marrying 23 those two (2) issues together would essentially reveal a 24 contradiction and then that would go to saying there may 25 be a problem.
381 COMMISSIONER STEPHEN GOUDGE: Okay. 2 DR. MICHAEL POLLANEN: Tha -- that's what 3 I'm contemplating. 4 COMMISSIONER STEPHEN GOUDGE: Okay. I 5 took the first question in the summary to be, implicitly, 6 reflecting a chronology of events; coroner provides 7 information, pathologist creates report. 8 Whereas, I took your concern to be after 9 the report of the pathologist, coroner receives it and 10 part of the death investigation is what the coroner then 11 does with the report. 12 DR. MICHAEL POLLANEN: Well, that's a 13 dimension, but, I mean, we -- it comes back to this whole 14 concept of the team. We're a team. And the coroner is a 15 medical doctor. They are resources in terms of special 16 knowledge, and that is of great benefit to our system for 17 all of the reasons that we've talked about previously. 18 And one of the benefits of that is that if 19 the coroner makes certain observations in the course of 20 their investigation, those are -- represent opportunities 21 to compare their findings, essentially, with the data in 22 the autopsy and the -- that represents an opportunity to 23 determine, among many things, whether errors of 24 interpretation have occurred. 25 COMMISSIONER STEPHEN GOUDGE: Okay, thank
391 you. 2 Anything arising on that, Mr. Ortved? 3 4 CONTINUED BY MR. NIELS ORTVED: 5 MR. NIELS ORTVED: No. Just one (1) 6 question, going -- going to the Commissioner's question 7 to you and your answer that -- that the closest the 8 report comes is question Number 1, the -- the findings 9 are in that in fully 25 percent of the cases, there was 10 insufficient information provided, correct? 11 DR. MICHAEL POLLANEN: Eleven (11) out of 12 thirty-five (35) -- out of thirty-five (35). 13 MR. NIELS ORTVED: It's out of forty-five 14 (45), isn't it? 15 DR. MICHAEL POLLANEN: Forty-five (45), 16 correct, yes. 17 MR. NIELS ORTVED: Thank you. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 19 Ortved. 20 MS. LINDA ROTHSTEIN: Commissioner, if I 21 may? 22 COMMISSIONER STEPHEN GOUDGE: Yes, 23 absolutely. 24 MS. LINDA ROTHSTEIN: Just to assist the 25 parties and you, sir, with the schedule, which is
401 slightly different based on our start time, we do have a 2 revised schedule put before you for your consideration. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 MS. LINDA ROTHSTEIN: It will assist you. 5 COMMISSIONER STEPHEN GOUDGE: Thank you. 6 Great, that's great. 7 Okay, so you're next, Mr. Wardle. Start 8 the clock at 10:33. 9 10 CROSS-EXAMINATION BY MR. PETER WARDLE: 11 MR. PETER WARDLE: Good morning, Mr. 12 Commissioner. Good morning, Dr. McLellan and Dr. 13 Pollanen. 14 DR. BARRY MCLELLAN: Good morning. 15 DR. MICHAEL POLLANEN: Good morning. 16 MR. PETER WARDLE: Doctors, I just want 17 to introduce myself. I'm counsel for the Affected 18 Families Group, and that's a group of family members and 19 in one (1) case a caregiver for these five (5) deceased 20 children; Athena, Jenna, Nicholas, Sharon, and Tyrell -- 21 just so that you have that information before I start. 22 I want to start, Dr. Pollanen, with you, 23 and I have a number of questions for you dealing with the 24 role of the forensic pathologist in integrating 25 information -- that was the phrase you used a couple of
411 times -- and with respect to the objectivity of a 2 forensic pathologist work. 3 So I want to start with a portion of the 4 Coroner's Manual, and it's PFP057584. 5 And I'm afraid, gentlemen, I don't have 6 your tab numbers, so -- 7 DR. BARRY MCLELLAN: Okay. 8 MR. PETER WARDLE: -- we'll have to just 9 very slowly do this. Your manual I gather is a separate 10 binder? 11 DR. BARRY MCLELLAN: Yes. 12 DR. MICHAEL POLLANEN: It has page 13 numbers. 14 MR. PETER WARDLE: It may have page 15 numbers, but my version doesn't have page numbers. So 16 I'm at page 057851, which is memorandum 0410, July 12, 17 2004. 18 Page number is 057851. 19 DR. BARRY MCLELLAN: Just while we're 20 looking, could you give the title of the memo? 21 MR. PETER WARDLE: Sir, the title is, 22 "Physical Scientific Evidence". 23 24 (BRIEF PAUSE) 25
421 MR. PETER WARDLE: Shall I repeat the 2 page number again? It's page PFP057851. 3 DR. BARRY MCLELLAN: And the date of the 4 memo? 5 MR. PETER WARDLE: July 12th, 2004. 6 DR. MICHAEL POLLANEN: I believe it's 7 actually in our third binder at Tab 6. July 12, 2004. 8 MR. PETER WARDLE: Correct. 9 DR. MICHAEL POLLANEN: Memo 0410? 10 MR. PETER WARDLE: Correct. But we need 11 to pull it up on the screen, and we seem to have the 12 first page of the Coroner's Manual, but I'm asking for 13 us -- 14 COMMISSIONER STEPHEN GOUDGE: If it was 15 the right memo, we have another PFP number for the 16 document at Tab 6. 17 MR. PETER WARDLE: Okay. I was actually 18 going to start with that, but I thought it would confuse 19 everyone. 20 COMMISSIONER STEPHEN GOUDGE: Well, we've 21 stopped your clock for a minute or two (2), so don't 22 worry. 23 24 CONTINUED BY MR. PETER WARDLE: 25 MR. PETER WARDLE: Thank you, sir.
431 PFP032438. 180 Dundas Street Bingo Hall. 2 So, Dr. Pollanen, do you have that in 3 front of you now? 4 DR. MICHAEL POLLANEN: I do. 5 MR. PETER WARDLE: And I want to just use 6 this if I can as a convenient jumping off point. So it 7 deals with physical scientific evidence, and this is a 8 memo that's directed to coroners, pathologists, forensic 9 anthropologists, and forensic dentists in Ontario, 10 correct? 11 DR. MICHAEL POLLANEN: Yes. 12 MR. PETER WARDLE: And it starts out in 13 the introduction on the first page, saying that: 14 "Physical scientific evidence often 15 plays an important part in the 16 determination of criminal liability." 17 And I assume that's a statement you agree 18 with? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. PETER WARDLE: And then over the 21 page, on page 2, you'll see there's a paragraph under 22 "Duty to obtain written record". It says: 23 "Crown counsel should not take any 24 action affecting an accused or suspect 25 based on an oral opinion or report made
441 by a forensic expert which is not 2 reported in writing." 3 Do you see that? 4 DR. MICHAEL POLLANEN: Yes. 5 MR. PETER WARDLE: And -- and that's an 6 important signal in this memo to be sent to all the 7 people to whom it's addressed, correct? 8 DR. MICHAEL POLLANEN: It is an important 9 message, yes. 10 MR. PETER WARDLE: Okay. And I'm -- and 11 I'm -- I anticipate we'll be coming back to that, but 12 that's not primarily at this point why I'm directing you 13 to this memo. I want to turn over a couple more pages to 14 page 4. 15 And you'll see under "Retention of 16 Evidence for Replicate Testing", it starts: 17 "The hallmark of scientific reliability 18 is the ability to reproduce the 19 result." 20 Correct? 21 DR. MICHAEL POLLANEN: It's one (1) of 22 the factors, yes. 23 MR. PETER WARDLE: So for example, if 24 there has been a -- a dissection of tissues, and a tissue 25 block has been prepared as a result of an autopsy, and
451 slides have been prepared from that tissue block, as I 2 understand it, the tissue block allows you to cut new 3 slides at a point in the future, correct? 4 DR. MICHAEL POLLANEN: Correct. 5 MR. PETER WARDLE: So you can replicate 6 that result with some certainty? 7 DR. MICHAEL POLLANEN: No, you can -- you 8 can replicate the substrate to make an expert opinion. 9 It's quite different. 10 MR. PETER WARDLE: All right. I think I 11 understand your qualification but I want to go back a 12 little bit further. When the forensic pathologist does 13 the autopsy, as a result the body as it was before the 14 autopsy is no longer in existence, correct? 15 The condition of the body changes very 16 significantly? 17 DR. MICHAEL POLLANEN: Irreversibly. 18 MR. PETER WARDLE: All right. And so 19 that's something that makes this discipline different 20 from certain other types of scientific testing, correct? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. PETER WARDLE: At least as it -- at 23 least as we're talking about the autopsy itself, correct? 24 DR. MICHAEL POLLANEN: Correct. 25 MR. PETER WARDLE: And the things that
461 are done at what you called the other day "Stage 2" of 2 the process -- so for example observations of the body, 3 photographs of the body, all those kinds of things that 4 are done before the autopsy proper starts are all 5 extremely important for that reason, correct? 6 DR. MICHAEL POLLANEN: Yes. 7 MR. PETER WARDLE: And I take it that a 8 second autopsy after the first one is performed, I gather 9 there are such things? 10 DR. MICHAEL POLLANEN: Yes. 11 MR. PETER WARDLE: But whoever does the 12 second autopsy, it's within a short period of time. 13 There would be certain things that would be lost because 14 of what takes place during the first autopsy? 15 DR. MICHAEL POLLANEN: Potentially. Not 16 always but much of the time. 17 MR. PETER WARDLE: So for example the 18 only way for the defence to replicate what takes place at 19 the first autopsy might actually be to have someone 20 there? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. PETER WARDLE: And would you agree 23 with me that there may be circumstances where it's 24 important that the physical remains are not destroyed 25 after the first autopsy?
471 DR. MICHAEL POLLANEN: Well, I would 2 agree that if you are contemplating a second autopsy then 3 a prerequisite for it is to have the body and, for 4 example, the body not be lost or cremated. 5 MR. PETER WARDLE: So cremation for 6 example would destroy certain physical remains that might 7 in fact lead -- lead you to evidence later if there was 8 another autopsy, correct? 9 DR. MICHAEL POLLANEN: If the evidence 10 was not collected in the first instance. 11 MR. PETER WARDLE: All right. And you 12 may be aware that in one of these cases, Athena's case, 13 there was a controversy about cremation of the remains. 14 Are you aware of that, Dr. Pollanen? 15 DR. MICHAEL POLLANEN: Not in detail but 16 I understand that. 17 MR. PETER WARDLE: All right. And in 18 Sharon's case, just to give you an example you may be a 19 little more familiar with, if in fact Sharon's body had 20 been created after the first autopsy there might have 21 been no way to go back later and get the kind of 22 information we now have about what happened in Sharon's 23 case, correct? 24 DR. MICHAEL POLLANEN: I don't think that 25 applies in Sharon's case.
481 MR. PETER WARDLE: All right. But the 2 simple point I want to make for now is that all of these 3 things that happen at which you called "Stage 2" are 4 critical because once Stage 3 takes place, the body as it 5 existed before the autopsy has really been changed very, 6 very significantly, correct? 7 DR. MICHAEL POLLANEN: That's -- that's 8 one of the major issues, yes. 9 MR. PETER WARDLE: Now, let me come to 10 the role of information, and you described forensic 11 pathology as an integrative specialty, correct? 12 DR. MICHAEL POLLANEN: Yes. 13 MR. PETER WARDLE: And in fact you said 14 to us, I think on Tuesday, that one of the myths of 15 forensic pathology is that the forensic pathologist 16 examines the body and produces an answer. 17 DR. MICHAEL POLLANEN: Yes. 18 MR. PETER WARDLE: Do you remember saying 19 that? 20 DR. MICHAEL POLLANEN: I do. 21 MR. PETER WARDLE: And you said you must 22 get information regarding the context of the case, scene 23 appearance, and history for example? 24 DR. MICHAEL POLLANEN: Yes. 25 MR. PETER WARDLE: And My Friend, Mr.
491 Ortved, reminded you of this: You have to be maximally 2 informed, right? 3 DR. MICHAEL POLLANEN: Correct. 4 MR. PETER WARDLE: And you gave us the -- 5 the shrimp example. If you didn't know that the person 6 had had the shrimp lunch before they died, you might not 7 know to conduct certain tests, correct? 8 DR. MICHAEL POLLANEN: That was one (1) 9 example I gave, yes. 10 MR. PETER WARDLE: Now, then you told us 11 about a concept that you called "filtration". That's 12 what I want to focus on for a few minutes. 13 And you -- you came back to this a couple 14 of times, and I want to just start by repeating what I 15 think you said the first time. You said: 16 "The forensic pathologist must exercise 17 restraint and discretion and filter, 18 and not use, highly suspect or 19 speculative information." 20 Correct? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. PETER WARDLE: For example, a 23 confession. 24 DR. MICHAEL POLLANEN: One of the pitfalls 25 is using confessions, yes.
501 MR. PETER WARDLE: Now, when you talked 2 about filtering, Dr. Pollanen, I took it as that -- that 3 you were talking almost about a professional obligation. 4 DR. MICHAEL POLLANEN: I would say that 5 it's part of the -- of the method of forensic pathology. 6 MR. PETER WARDLE: But it's not a 7 scientific concept or a scientific parameter, is it? 8 DR. MICHAEL POLLANEN: It overlaps 9 significantly with the scientific. For example, if you 10 are engaged in a scientific test, you require some type 11 of judgment about the extent of the testing that you 12 might perform or what calibration standards you're going 13 to use on a machine. 14 So there's -- even in science, because 15 science -- in this case we're talking about forensic 16 science -- is performed by scientists which are people. 17 There's always an element of judgment that comes into the 18 matter. 19 MR. PETER WARDLE: So, even in what we 20 would call "pure science", there's still an -- an element 21 of judgment and professional good sense, if I can put it 22 that way, correct? 23 DR. MICHAEL POLLANEN: Well, I think 24 judgment encapsulates it. 25 MR. PETER WARDLE: Right. And if we
511 examine, as I think we must in this process, how you 2 create that filter -- and I suggest to you that one thing 3 that might be very important -- one thing that might be 4 very important would be training, correct? 5 DR. MICHAEL POLLANEN: Yes. 6 MR. PETER WARDLE: And mentoring would be 7 part of that process. 8 DR. MICHAEL POLLANEN: Very useful. 9 MR. PETER WARDLE: Case studies might be 10 part of that process. 11 DR. MICHAEL POLLANEN: Yes. 12 MR. PETER WARDLE: Pitfalls... 13 14 (BRIEF PAUSE) 15 16 MR. PETER WARDLE: Your experience as a 17 forensic pathologist might help you with that filtering 18 process, correct? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. PETER WARDLE: And that process might 21 include, for example, testifying in court? 22 DR. MICHAEL POLLANEN: Yes. 23 MR. PETER WARDLE: And watching others 24 testify in court? 25 DR. MICHAEL POLLANEN: Yes.
521 MR. PETER WARDLE: And, the extent to 2 which you document observations at the post-mortem is 3 also an important part of that filtering process. 4 DR. MICHAEL POLLANEN: Well, there's a 5 decision about how extensive to make documentation at 6 autopsy. It's slightly different from filtering 7 information that comes to you. But, depending on the 8 type of case, you may choose to describe injuries with a 9 greater -- with more extensive detail in some cases 10 versus others. 11 MR. PETER WARDLE: Put it this way; you 12 would certainly want to document all of the information 13 you collected that forms a part of your analysis and 14 opinion, correct? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. PETER WARDLE: And one of the reasons 17 for that is so that it can be reviewed by others, if need 18 be, later. 19 DR. MICHAEL POLLANEN: Yes. Coming back 20 to this issue of review -- reviewability. 21 MR. PETER WARDLE: And you'd agree that 22 the decision-making process for the forensic pathologist 23 has to be transparent? If I can use that phrase. 24 DR. MICHAEL POLLANEN: Yes. 25 MR. PETER WARDLE: And you've also told
531 us about the team approach, and I take it that the team 2 approach is also -- can be useful in terms of filtering 3 information. 4 DR. MICHAEL POLLANEN: The team approach 5 is probably more useful in identifying the scope of 6 information. So, for example, the coroner would make 7 certain observations; the police, certain observations, 8 if it's a fire death; the fire marshal's office certain 9 observations, and all of the information comes to the 10 pathologist. It's a scope, and then the pathologist 11 filters it. 12 MR. PETER WARDLE: And you would also 13 agree that the Death Investigation Team needs to keep an 14 open mind, correct? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. PETER WARDLE: In other words, it's 17 in -- there's not much use in having a team if they all 18 take the same viewpoint, right? 19 DR. MICHAEL POLLANEN: One of the 20 benefits of the team is that different people bring 21 different expertise and experience to the matter. 22 MR. PETER WARDLE: So one of the roles of 23 the team, I suggest to you, is the ability to perhaps be 24 sceptical and to criticize the opinions and analysis of 25 other members of the team.
541 DR. MICHAEL POLLANEN: Healthy critical 2 analysis is part of that process, as opposed to 3 destructive analysis, but critical analysis is healthy, 4 yes. 5 MR. PETER WARDLE: Now, let me suggest to 6 you, and I think you will agree with this, that in the 7 absence of that filtering process that you've talked 8 about and we've gone through, the forensic pathologist 9 may have a problem. 10 DR. MICHAEL POLLANEN: In the absence of 11 filtering, it becomes difficult to prioritize what 12 elements of the history are more relevant than not, and 13 that may ultimately affect your conclusions. 14 MR. PETER WARDLE: Let me just give you - 15 - I'd like to just take you to a concrete example, if I 16 may, for a moment, and I want to turn up PFP 144159, 17 which is the Kenneth case overview. 18 MS. LINDA ROTHSTEIN: Tab 11, Mr. 19 Commissioner. 20 COMMISSIONER STEPHEN GOUDGE: Thank you. 21 It's in Volume I of those white binders. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER STEPHEN GOUDGE: Do you want
551 a particular page there, Mr. Wardle? 2 MR. PETER WARDLE: I do. I just wanted 3 to make sure Dr. Pollanen had it. 4 I'd like to take you to page 32 and it's 5 paragraphs 104 and following. Hopefully my page 32 6 matches your page 32, Dr. Pollanen. 7 COMMISSIONER STEPHEN GOUDGE: It starts 8 with paragraph 96? 9 MR. PETER WARDLE: My page 32 starts at 10 paragraph 9 -- 104. 11 COMMISSIONER STEPHEN GOUDGE: Why don't 12 we use paragraph numbers. 13 MR. PETER WARDLE: Paragraph 104. 14 COMMISSIONER STEPHEN GOUDGE: It's under 15 the heading "Autopsy"? 16 MR. PETER WARDLE: That's correct. 17 18 CONTINUED BY MR. PETER WARDLE: 19 MR. PETER WARDLE: So, Dr. Pollanen, 20 you'll see there's a little bit of this case in 21 paragraphs 104 and 105; it gives you a little bit of 22 context. And then I want to take you to paragraph 107, 23 and this is an undated final autopsy report and it has a 24 section -- a short history section, do you see that? 25 DR. MICHAEL POLLANEN: Yes, I do.
561 MR. PETER WARDLE: Now, there's a bit of 2 a difficulty with this document, Mr. Commissioner, 3 because in fact, Robert is the biological father of 4 Kenneth, but I want to just put that aside for a moment. 5 It may be relevant, Dr. Pollanen, to the 6 Death Investigation Team, and particularly to the 7 forensic pathologist, that the father was not in the home 8 at the time of the incident, correct? 9 DR. MICHAEL POLLANEN: I -- I'm not sure 10 I follow. 11 MR. PETER WARDLE: Okay. Looking at 12 paragraph 107, and I'm going to break it up into parts, 13 and I just want to start with that first sentence: 14 "Social history indicates that the 15 mother's husband, Robert, was not in 16 the home at the time of the incident." 17 That may be a relevant fact for the death 18 investigation team, correct? 19 DR. MICHAEL POLLANEN: For some, yes. 20 MR. PETER WARDLE: It may not in fact be 21 a relevant fact for the forensic pathologist, correct? 22 DR. MICHAEL POLLANEN: It may not. 23 MR. PETER WARDLE: But lets go ahead to 24 the next two (2) sentences: 25 "Robert, who married Kenneth's mother
571 about three (3) months ago is not 2 Kenneth's father." 3 And I want you just to skip that sentence 4 and go to the last sentence. 5 "He was not present at the time, 6 because he was at Scarborough hospital 7 attending to his girlfriend that was 8 giving -- was giving birth to his 9 baby." 10 Now, can I suggest to you that that 11 sentence is likely not relevant to the death 12 investigation team, and it's certainly not relevant to 13 the forensic pathologist who's doing the autopsy. 14 DR. MICHAEL POLLANEN: Well I would say 15 that I can't speak for all members of the team. I mean, 16 that very well may be relevant, for example, in the 17 police investigation. I can't speak to that. 18 However, without getting into the details 19 of -- of the case, I don't see how that would form part 20 of a clinical pathological correlation. 21 Meaning, often when we do an autopsy we 22 try to correlate a finding at autopsy with a finding in 23 the history to advance our or another team members 24 understanding of the case. I don't know how that 25 information would lead to such an analysis.
581 MR. PETER WARDLE: In fact would you go 2 so far as to agree with me to this extent, that it's 3 somewhat troubling to find this sentence in this final 4 autopsy report, which appears to have been authored by 5 Dr. Smith? 6 DR. MICHAEL POLLANEN: I would say that 7 that's the type of information that would be usually 8 filtered out. 9 MR. PETER WARDLE: Okay. And that's 10 precisely the point I want to make. When the 11 Commissioner looks at making recommendations -- and 12 remember his recommendations affect not only you, Dr. 13 Pollanen, but all the other forensic pathologists across 14 the Province who do criminally suspicious deaths. 15 One of the things he has to look at is how 16 do we ensure that that filter is in place in every case 17 when an autopsy is done in a criminally suspicious death, 18 correct? 19 DR. MICHAEL POLLANEN: I understand that, 20 yes. 21 MR. PETER WARDLE: And you'd agree that 22 that's very important and relevant to the mandate of this 23 Commission? 24 DR. MICHAEL POLLANEN: I recognize it as 25 one of the issues.
591 MR. PETER WARDLE: Okay. In other words, 2 we have to build a system not just for the best and the 3 brightest -- and I put you in that category based on what 4 I've seen over the last few days -- but we have to build 5 a system for all -- for all the people who are going to 6 do this work, right? 7 DR. MICHAEL POLLANEN: We have to 8 continue to improve our system to achieve that goal. 9 MR. PETER WARDLE: Okay. Now I want to 10 talk to you briefly about a concept that is related to 11 what we've just been discussing, and that is the question 12 of bias. 13 And first of all, can you agree with me 14 that all of us, including forensic pathologists, have 15 inherent biases that influence our thinking? 16 DR. MICHAEL POLLANEN: Generally speaking 17 people have biases, whether you're a forensic pathologist 18 or not. 19 MR. PETER WARDLE: And am I right that 20 much has been roll -- written -- and we're not going to 21 go into it this morning -- about the role of bias in 22 science, correct? 23 DR. MICHAEL POLLANEN: Yes. 24 MR. PETER WARDLE: Particularly with 25 respect to scientific testing as it intersects with the
601 criminal process, correct? 2 DR. MICHAEL POLLANEN: There's a -- 3 there's a -- very rich literature on that, yes. 4 MR. PETER WARDLE: All right. And I -- I 5 don't want to go into this in any detail, but I want to 6 talk to you a little bit about the concept of 7 confirmation bias. 8 And you're familiar with that concept? 9 DR. MICHAEL POLLANEN: Yes. 10 MR. PETER WARDLE: And I'm just going to 11 give you a definition and see if you accept this. I 12 understand there's something called cognitive 13 confirmation bias which is a term to describe our 14 tendency to seek out and interpret evidence in ways that 15 fit existing beliefs. 16 Are you familiar with that concept? 17 DR. MICHAEL POLLANEN: Yes. 18 MR. PETER WARDLE: Okay. And there's 19 also a concept called behavioural confirmation bias or 20 self fulfilling prophecy, which is the tendency for 21 people to unwittingly procure support for their beliefs 22 through their own behaviour. 23 And again, are you familiar with that 24 concept? 25 DR. MICHAEL POLLANEN: No.
611 MR. PETER WARDLE: Okay. Well, lets just 2 deal with the first; confirmation bias. 3 Can we agree that this potentially can be 4 a danger in forensic pathology? 5 DR. MICHAEL POLLANEN: It is a potential 6 pitfall, I would say. And this comes out of the opposite 7 view which is -- or demonstrated through the opposite 8 view which is present in the Morin Report, for example, 9 where as opposed to seeking to confirm a hypothesis that 10 one should also develop an approach to find data which is 11 capable of refuting it. 12 I think that's the -- the concept that's 13 important here is that the goal, for example -- to bring 14 it to what we're talking about -- the goal of the autopsy 15 is not to prove a predetermined outcome or a theory that 16 is presented to the pathologist; the -- it's a search for 17 the truth. It is a way of finding things using a special 18 procedure called an autopsy and let those findings guide 19 you to an interpretation, as opposed to an interpretation 20 made previously doing the guiding. 21 This is -- this touches on a number of 22 related issues that we've talked about today but I think 23 that's the concept or that's my understanding of the 24 concept. 25 MR. PETER WARDLE: I think we're on the
621 same page. And one of the things we'd be concerned about 2 is we'd be concerned about not only predetermined 3 outcomes that the person conducting the autopsy knows 4 about -- in other words, a conscious thinking -- but we'd 5 also be concerned about unconscious bias influing -- 6 influencing the results, correct? 7 DR. MICHAEL POLLANEN: Frankly, I haven't 8 contemplated that. 9 MR. PETER WARDLE: All right. But we may 10 -- we may have to and that's what I'm coming to. 11 Let me suggest to you that someone could 12 potentially see what they want to see under the 13 microscope. 14 That's not impossible? 15 DR. MICHAEL POLLANEN: We're getting a 16 bit far afield I think. 17 MR. PETER WARDLE: We might be getting a 18 bit far afield from your expertise but we, with respect, 19 are not getting far afield with the work of this Inquiry. 20 And let me just repeat the question again. 21 Someone who could potentially see what 22 they want to see under the microscope... 23 DR. MICHAEL POLLANEN: I think the -- the 24 best way to answer that question is if you are paying 25 attention to the objective details that you are observing
631 under the microscope, you will not fall into that 2 pitfall. 3 I just want to enlarge on -- on one 4 concept here about confirmation bias. 5 And it's very important to realize that 6 sometimes things are exactly as they seem. So in may 7 cases -- and this is particularly true in homicide -- 8 the -- the dangers of confirmation bias do not abound. 9 When people are shot in the head, stabbed in the heart, 10 and when there are good investigations confirmation bias 11 is really not a major issue. 12 So we don't -- I don't want to give the 13 impression that this is a -- a pervasive issue that 14 extensively causes difficulties in forensic pathology. 15 Sometimes things are exactly as they are presented to the 16 pathologist and the -- the autopsy does, in fact, become 17 an exercise in finding corroborative or supportive 18 evidence. 19 In some cases it doesn't. It produces a 20 fact or an interpretation which negates the information 21 that is coming into the autopsy and our challenge at that 22 time is to recognize it. Because if you do not recognize 23 the contradiction -- and to put it in greater terms, if 24 you do not have mechanisms, policies, procedures to 25 recognize those contradictions, then the team will go
641 down the wrong track. 2 MR. PETER WARDLE: Now, let me follow up 3 on that answer by suggesting to you that the potential 4 dangers of confirmation bias are accentuated in pediatric 5 cases where there may be no circumstantial evidence like 6 a gun or, you know, all of the things that there usually 7 are in a police investigation. 8 DR. MICHAEL POLLANEN: You have a greater 9 chance of falling into confirmation bias if you adopt a 10 platform from the outset that is not a search for the 11 truth platform. 12 MR. PETER WARDLE: In -- in pediatric 13 cases, correct? 14 DR. MICHAEL POLLANEN: In all cases. 15 MR. PETER WARDLE: Okay. And am I right 16 that dealing with a dead child leads all of us to an 17 emotional reaction, and I'm not speaking, for a moment, 18 of the forensic pathologist, but just generally. 19 The death of a child is a very emotional 20 matter for human beings, correct? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. PETER WARDLE: And that's especially 23 so in circumstances where the death is criminally 24 suspicious, correct? 25 DR. MICHAEL POLLANEN: Reasonably.
651 MR. PETER WARDLE: You'd agree it's a 2 highly emotional environment for the family, and even for 3 others involved in the death investigation, like the 4 police? 5 DR. MICHAEL POLLANEN: It can be, yes. 6 MR. PETER WARDLE: For the forensic 7 pathologist, you would agree that in dealing with child 8 deaths it's, perhaps, more important, than even in other 9 cases, to remain objective and unemotional. 10 DR. MICHAEL POLLANEN: We're not 11 computers, Mr. Wardle. There is -- there is an element 12 of being a physician, as well, and that can't be lost in 13 this. We're not calculators and pure scientists like 14 physicists are; we're doctors, so there -- there is a -- 15 there is an element of that in our work. 16 The challenge is to balance this, and so I 17 -- I agree with you to some extent, but the challenges 18 are in the balance. 19 MR. PETER WARDLE: And I wasn't trying to 20 suggest that you -- that a forensic pathologist is not a 21 caring physician and that -- that wasn't the premise of 22 my question. But the premise was that in dealing with a 23 child death that touches all these deeply held emotional 24 issues, it may be more important than ever for the 25 pathologist to, you know, do that balancing, if I can use
661 your phrase, correct? 2 DR. MICHAEL POLLANEN: Well, certainly if 3 you feel you're emotionally affected by the case, you 4 would have to recognize that and balance it. 5 MR. PETER WARDLE: And in fact, that may 6 be something that needs to be dealt with during the 7 training process. In other words, there may be certain 8 types of individuals who are not -- who shouldn't be 9 doing this work because they don't have the ability to do 10 that balancing; they're too emotional. 11 DR. MICHAEL POLLANEN: I haven't thought 12 of that before. 13 MR. PETER WARDLE: All right. But, for 14 example, your training as a pathologist would have 15 involved, you know, years of working with other people in 16 all sorts of situations, including pediatric death cases. 17 DR. MICHAEL POLLANEN: Yes. 18 MR. PETER WARDLE: All right. 19 DR. MICHAEL POLLANEN: I will tell you 20 one (1) thing from my own experience that might assist 21 you, and perhaps this is unique to me or unique to 22 forensic pathologists, but what I found far more 23 troubling during my track through medical training was 24 not, so much, the issues that you're talking about but 25 more the suffering of living people in the hospital.
671 So, I actually think that that exacts more 2 of an emotional toll on -- on most physicians than 3 contemplating issues of death; that's -- that's my own 4 personal view. 5 I -- I will recognize, however, that 6 approximately a year or two (2) ago, I autopsied a 7 multiple murder case involving children. And after the 8 post-mortem examinations, we did offer counselling to the 9 staff because many people in the -- on the staff were 10 severely affected by the nature of the injuries and the 11 fact that a -- that a family was killed. And that does 12 go to highlight the issue that emotions do play a role in 13 this. 14 Now, having said that, I performed the 15 three (3) autopsies in that multiple murder and I did not 16 feel emotionally disturbed by the -- by the case. 17 MR. PETER WARDLE: You also told us, 18 earlier in the week, that the role of the forensic 19 pathologist in the criminal process becomes accentuated 20 in a pediatric death where there may not be a lot of 21 additional evidence beyond the post-mortem and the 22 report, correct? 23 DR. MICHAEL POLLANEN: That is -- that is 24 a major issue, and has come in -- has been displayed in 25 various forms, including some major appeal decisions in
681 the UK. 2 MR. PETER WARDLE: So, would you agree 3 with me that in these, you know, fairly uncommon cases -- 4 and just to use the statistics that came up earlier in 5 the week from the Institutional Overview of the Office of 6 the Chief Coroner -- I think the figure I plucked out was 7 five (5) to fifteen (15) homicides a year of pediatric 8 cases. 9 DR. MICHAEL POLLANEN: Yes. 10 MR. PETER WARDLE: Okay. That's not a 11 very large number. 12 DR. MICHAEL POLLANEN: No. 13 MR. PETER WARDLE: Would you agree with 14 me that it's critical that forensic pathology, in dealing 15 with these cases, has to avoid confirmation bias? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. PETER WARDLE: And, just to touch on 18 one (1) last concept that I'm sure we're going to be 19 hearing lots about; the concept of "tunnel vision". Let 20 me put it -- put it to you this way and see if you agree 21 with me. You may have a better -- a better definition of 22 "tunnel vision" that I have. 23 But there can be a danger that rather than 24 keeping an open mind during an investigation, one leaps 25 to a conclusion that the suspect is guilty, and
691 investigative efforts then centre on marshalling facts 2 and assembling evidence to convict that suspect. 3 Does that definition make sense to you? 4 DR. MICHAEL POLLANEN: I don't -- I don't 5 detect inconsistencies in it. It's certainly not 6 directly applicable to forensic pathology because it 7 involves legal outcomes and so on. I think there is a -- 8 there's another dimension to it though. 9 That is, you're talking about a process 10 that seeks facts to support one (1) direction. That's 11 going down the tunnel, but I think there is another 12 dimension, too. And that is not recognizing 13 contradictory facts when they appear; not assigning the 14 appropriate significance to contradictory facts. 15 And I can -- there are several examples in 16 the overview reports. 17 MR. PETER WARDLE: And would you put that 18 in your -- your sort of definition of "tunnel vision"? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. PETER WARDLE: Okay. And -- and 21 there are examples you can think of, without spending a 22 lot of time, from the overview reports that you've seen? 23 DR. MICHAEL POLLANEN: Yes. 24 MR. PETER WARDLE: Okay. And can we 25 agree that if, in one (1) of these pediatric cases, where
701 that role of the forensic pathologist is elevated and 2 they have a -- more of a lead role in the death 3 investigation, that if there is tunnel vision, that can 4 have an influence on the rest of the members of the death 5 investigation team? 6 DR. MICHAEL POLLANEN: Yes. Because the 7 -- the team concept is that we work collaboratively. 8 MR. PETER WARDLE: So, if I give you an 9 example, and I'm going to make it hypothetical to help 10 you, but if in Sharon's case, for example, the forensic 11 pathologist told the police at an early state that he 12 could rule out the involvement of an animal in the death, 13 that may have influenced how they investigated. Correct? 14 DR. MICHAEL POLLANEN: Certainly, when 15 you communicate to police at an autopsy, you're mindful 16 that the results that you give may direct investigation. 17 The -- it is, in fact, not as simple as that because in 18 addition -- because we work in a team and other members 19 are applying their own expertise that -- that comes to -- 20 comes to bear on the case. 21 They also represent opportunities to find 22 contradictory evidence. And that's not really 23 contemplated in your version of "tunnel vision", but I 24 think it is a very important variant of that in 25 pathology.
711 Because, just to make the point again, you 2 can -- you can find facts to go down a straight path that 3 may be false. But the other variant is that if you 4 bypass contradictory facts that have the ability to bump 5 you onto the right path, it's equivalent; the outcome is 6 the same. 7 MR. PETER WARDLE: So let's use Sharon's 8 case. If the police are gathering information which 9 suggest that there's an animal at the scene, those are 10 contradictory facts which the pathologist needs to take 11 into account? 12 DR. MICHAEL POLLANEN: Correct. 13 MR. PETER WARDLE: And that's really an 14 element of your concept of tunnel vision? 15 DR. MICHAEL POLLANEN: Yes. 16 MR. PETER WARDLE: Okay. Now I want to 17 take you briefly to Memorandum 631. 18 19 (BRIEF PAUSE) 20 21 MR. PETER WARDLE: So I have a PFP number 22 of -- our numbers are identical -- PFP057584. 23 DR. MICHAEL POLLANEN: Yes. 24 MR. PETER WARDLE: 351? 25 DR. MICHAEL POLLANEN: Yes.
721 MR. PETER WARDLE: All right. Now I 2 understand both of you -- both Dr. McLellan and you -- 3 Dr. Pollanen, to say yesterday that this document was, in 4 many ways, a major step forward for us in Ontario when it 5 was created in 1995? 6 DR. MICHAEL POLLANEN: Yes. 7 MR. PETER WARDLE: And I'm only going to 8 pass over the document lightly, but I think you can 9 anticipate that we'll be focussing, many of us, on one 10 paragraph, and that's the paragraph on page 4. 11 My Friend, Mr. Ortved put to Dr. McLellan 12 yesterday, that what this paragraph, the "think dirty" 13 paragraph suggested, was that there should be a high 14 index of suspicion in pediatric deaths. 15 And I think Dr. McLellan agreed with that 16 general proposition. I simply wanted to direct your 17 attention, Dr. Pollanen, and maybe get comments from both 18 of you about the second sentence of this paragraph which 19 really has two (2) parts. 20 "They [meaning the investigation team] 21 must actively investigate each case as 22 potential child abuse." 23 That's one part of the paragraph and the 24 second part is: 25 "And not come to a premature conclusion
731 regarding the cause and manner of death 2 until the complete investigation is 3 finished and all members of the team 4 are satisfied with the conclusion." 5 So there's sort of two (2) halves to it, 6 if you like. And, Dr. Pollanen, would you agree with me 7 that today, in 2007, you don't tell a -- members of the 8 Death Investigation Team or forensic pathologist to 9 actively investigate each case as potential child abuse? 10 DR. MICHAEL POLLANEN: In -- in our 11 guidelines to forensic pathologists we -- we give the 12 advice to think objectively, and this is compatible with 13 the search for the truth platform. 14 And then we specify what types of 15 procedures might be relevant in providing positive or 16 negative evidence regarding the child abuse issue. So we 17 -- we start off, essentially, in an undifferentiated 18 position and then say this is the evidential exercise in 19 the autopsy that you should go through to find evidence, 20 and let the evidence be your guide. 21 MR. PETER WARDLE: So just looking at 22 this sentence -- and because I'm a lawyer, I tend to 23 parse sentences -- but there's nothing wrong with the 24 last part of the sentence, is there? 25 It -- it -- you -- you could say something
741 like this -- you may have said something like this 2 already this week, that you shouldn't come to a premature 3 conclusion regarding the cause and manner of death until 4 the complete investigation is finished, and all members 5 of the team are satisfied. 6 That -- that's something we don't disagree 7 about, right? 8 DR. MICHAEL POLLANEN: Correct. 9 MR. PETER WARDLE: Okay. But the first 10 part of the sentence is potentially problematic, isn't 11 it? 12 DR. MICHAEL POLLANEN: For the reasons 13 that you've outlined there are potential problems with 14 that approach, yes. 15 MR. PETER WARDLE: All right. And one of 16 the things -- do you agree with this, Dr. Pollanen, one 17 of the things we may have to get to grips with in this 18 Commission is whether that thinking, the thinking 19 embodied in the first part of this sentence, had some 20 influence in the events that we're going to be examining? 21 DR. MICHAEL POLLANEN: I can see that as 22 an issue. 23 MR. PETER WARDLE: Mr. Commissioner, I 24 don't know when you were going to take the morning break 25 but this might be an appropriate time.
751 COMMISSIONER STEPHEN GOUDGE: Sure. We 2 can break now and we'll come back at 11:35. 3 4 --- Upon recessing at 11:20 a.m. 5 --- Upon resuming at 11:41 a.m. 6 7 THE REGISTRAR: All rise. Please be 8 seated. 9 COMMISSIONER STEPHEN GOUDGE: Mr. 10 Wardle...? 11 12 CONTINUED BY MR. PETER WARDLE: 13 MR. PETER WARDLE: Dr. Pollanen, just to 14 finish this area we've been talking about -- and again, 15 I'm just touching lightly on some very complex concepts, 16 I think we agree on that; confirmation bias in particular 17 is a complex concept, correct? 18 DR. MICHAEL POLLANEN: Yes. 19 MR. PETER WARDLE: All right. But one of 20 things that might lead us towards in thinking about 21 recommendations, both confirmation bias, tunnel vision, 22 the whole concept of filtering that we've been discussing 23 this morning, if we had a perfect world, one (1) thing we 24 could do is have more than one (1) pathologist do an 25 autopsy, correct?
761 DR. MICHAEL POLLANEN: Well, one of the 2 models that -- that I've discussed for pediatric forensic 3 pathology is a double doctoring model and I've used our 4 approach to skeletal remains wit -- in which the forensic 5 pathologist and a forensic anthropologist work together 6 as an example of that principle. 7 MR. PETER WARDLE: Now, the one thing we 8 haven't discussed at all is how much that would cost. 9 And I'm assuming that there's cost limitations that may 10 come into play, but there's also availability of 11 resources. There aren't very many of these people with 12 this kind of expertise, right? 13 DR. MICHAEL POLLANEN: Correct, and 14 available at a moment's notice. Forensic pathology is 15 not a predictable specialty. And that is that when 16 people die and how many people die, is determined by many 17 factors, and it's not something you can plan for. 18 So the -- the workforce issues -- the 19 manpower issues -- also involve the unpredictable nature 20 of the -- of the work. 21 MR. PETER WARDLE: So, if we were going 22 to go to a double-doctoring system for autopsies in 23 pediatric cases, we'd have to make sure that we were able 24 to have those resources in place. There'd have to be 25 both the forensic pathologist and a pathologist with
771 pediatric training really available on short notice to 2 conduct these autopsies; bearing in mind that there 3 aren't that many of them. Right? 4 DR. MICHAEL POLLANEN: If we were using 5 the double-doctoring approach, yes. 6 MR. PETER WARDLE: And is that an 7 approach that is used in other jurisdictions to deal with 8 these kinds of deaths? 9 DR. MICHAEL POLLANEN: Yes. 10 MR. PETER WARDLE: Can you name some for 11 us? 12 DR. MICHAEL POLLANEN: Mostly the UK and 13 Australia. The United States does not use that approach. 14 Most -- most medical examiners' offices do not use a 15 double-doctoring approach. It's more forensic pathology 16 driven. 17 COMMISSIONER STEPHEN GOUDGE: When you 18 say "these kinds of cases", Mr. Wardle, I took you to 19 mean pediatric deaths that are criminally suspicious. 20 DR. MICHAEL POLLANEN: Correct. 21 MR. PETER WARDLE: And I -- I assume Dr. 22 Pollanen thought the same? 23 COMMISSIONER STEPHEN GOUDGE: That's what 24 you understood? 25 DR. MICHAEL POLLANEN: Yes.
781 2 CONTINUED BY MR. PETER WARDLE: 3 MR. PETER WARDLE: And, just so that 4 we're clear, Dr. Pollanen, the double-doctoring would 5 have to apply, no only to the autopsy process -- the 6 autopsy proper, I'm sorry -- but it would have to apply 7 to the entire process; the five (5) steps that you 8 outlined earlier this week. 9 DR. MICHAEL POLLANEN: Well, I think the 10 Commissioner observed that the different players would 11 have different emphasis at different steps. And one 12 could develop a double-doctoring model where the 13 pediatric pathologist was more associated with the 14 histology end; the Step 3 end. The other model would be 15 essentially both working together through all steps. 16 COMMISSIONER STEPHEN GOUDGE: Which is 17 used in the UK and Australia? 18 DR. MICHAEL POLLANEN: The -- the panel 19 that's coming next week would be better able -- 20 COMMISSIONER STEPHEN GOUDGE: Okay. 21 DR. MICHAEL POLLANEN: -- to give you the 22 details. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 25 CONTINUED BY MR. PETER WARDLE:
791 MR. PETER WARDLE: But if he had -- 2 COMMISSIONER STEPHEN GOUDGE: May I ask 3 just one (1) other question, Mr. Wardle? 4 MR. PETER WARDLE: Of course, sir. 5 COMMISSIONER STEPHEN GOUDGE: This 6 discussion arose out of the discussion you were having 7 with Mr. Wardle about confirmation bias. When you and I 8 discussed it the other day, Dr. Pollanen, I was coming at 9 it, not so much from the confirmation bias concern, but 10 from the concern of the availability of second 11 specialties; pediatrics as well as forensics. 12 Does it assist as well in muting the risk 13 of confirmation bias to have double-doctoring? 14 DR. MICHAEL POLLANEN: In my view, yes. 15 COMMISSIONER STEPHEN GOUDGE: Just 16 elaborate on that a little bit. 17 DR. MICHAEL POLLANEN: Well, it stems 18 from the fact that the forensic pathologist is coming 19 with a series of experiences and educational background 20 and expertise. And then you have the pediatric 21 pathologist with their own set of experiences, et cetera. 22 And when you get two (2) professionals 23 together like that and you, for example, engage in a 24 process of filtering. Different people are going to 25 share, in a truly collaborative model -- I mean, clearly,
801 you can have double-doctoring where people just appear in 2 the same room and don't talk to one another, but I'm 3 talking about an effective -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. MICHAEL POLLANEN: -- way of doing 6 this. Then it minimizes, in my view, the confirmation 7 bias issue, because there's a -- there's a free exchange 8 between the pathologists. And that free exchange is to 9 identify the important matters in the history that will 10 guide, for example, the autopsy, and provide a 11 collaborative view on how to make the correlations -- the 12 clinical pathological correlations. 13 I guess it's a long way of saying that in 14 this case, two (2) minds are better than one (1), 15 particularly when the two (2) minds come from a slightly 16 different expertise. 17 18 CONTINUED BY MR. PETER WARDLE: 19 MR. PETER WARDLE: And -- and just to 20 follow that up, if we were concerned that confirmation 21 bias might be a factor in, what you call, sort of Steps 1 22 through 3, we might was to sure -- ensure that the second 23 doctor is involved in those steps. 24 DR. MICHAEL POLLANEN: Reasonable. 25 MR. PETER WARDLE: Thank you. All right,
811 thank you, Dr. Pollanen. 2 Dr. McLellan, I have some questions for 3 you relating to the period from 2001 to 2004. And I -- 4 just to orient you, I'm going to go back a little bit. 5 As I understand it, January '01 you became 6 the Regional Coroner for Toronto east? 7 DR. BARRY MCLELLAN: Correct. 8 MR. PETER WARDLE: June of '01 you became 9 the Deputy Chief Coroner for Forensic Services? 10 DR. BARRY MCLELLAN: Correct. 11 MR. PETER WARDLE: That was a position 12 that had been occupied with a slightly different title by 13 Dr. Chiasson earlier in time? 14 DR. BARRY MCLELLAN: Correct. 15 MR. PETER WARDLE: And it had been vacant 16 for a period of time? 17 DR. BARRY MCLELLAN: A short period of 18 time. 19 MR. PETER WARDLE: Okay. And am I right 20 that when you took on this position, your administrative 21 responsibilities included the OPFPU at the Hospital for 22 Sick Children? 23 DR. BARRY MCLELLAN: It included the 24 administrative responsibility for all forensic services 25 which would have included the Sick Children's Unit.
821 MR. PETER WARDLE: Okay. I'd prefer to 2 call it the Sick Children's Unit just because I can't get 3 my tongue around all those initials. 4 Dr. Smith was the director of the unit at 5 that time, correct? 6 DR. BARRY MCLELLAN: Correct. 7 MR. PETER WARDLE: And am I right that he 8 reported to and was accountable to you? 9 DR. BARRY MCLELLAN: With respect to 10 administrative matters I can't say that there was a 11 direct reporting relationship on any professional issues. 12 But with respect to policy setting matters that I met 13 with Dr. Smith about in early 2002, the answer is yes. 14 MR. PETER WARDLE: I wanted to just turn 15 up, if I may, a document in the database. It's PFP056 -- 16 the Registrar is smiling at me -- 288. And it won't be 17 in your binders, I don't believe. 18 19 (BRIEF PAUSE) 20 21 MR. PETER WARDLE: Do you have that on 22 the screen, Dr. McLellan? 23 DR. BARRY MCLELLAN: I have a job 24 description on the screen. 25 COMMISSIONER STEPHEN GOUDGE: Is there
831 any chance you could enlarge that? I had my eyes checked 2 this morning and I can't see anything. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER STEPHEN GOUDGE: Thank you. 7 8 CONTINUED BY MR. PETER WARDLE: 9 MR. PETER WARDLE: Now this document is 10 undated; I just culled it from the database. So I want 11 to be very careful to point that out to you, sir. 12 Have you seen anything like this before? 13 14 (BRIEF PAUSE) 15 16 DR. MICHAEL POLLANEN: I have no 17 recollection of having seen that before. 18 MS. LINDA ROTHSTEIN: Commissioner, if I 19 may assist? 20 COMMISSIONER STEPHEN GOUDGE: Yes, what 21 is it? 22 MS. LINDA ROTHSTEIN: The best we know is 23 that it's attached to a document dated April 1999. 24 COMMISSIONER STEPHEN GOUDGE: But is it a 25 hospital document or do we know?
841 MR. ROBERT CENTA: It's attached to a 2 document titled, "Revisioning the Pediatric Forensic 3 Pathology Unit". It was a document that we received from 4 the office of the Chief Coroner. 5 DR. BARRY MCLELLAN: Just to help me, was 6 that a document that may have been authored by Dr. 7 Chiasson at the time? 8 MS. LINDA ROTHSTEIN: I believe that's 9 right, yeah. 10 11 CONTINUED BY MR. PETER WARDLE: 12 MR. PETER WARDLE: So this, as I 13 understand it, is a proposal. It's not a -- it's not to 14 reflect something that's actually in existence. 15 DR. BARRY MCLELLAN: I'm not sure from 16 that I can actually conclude that. It's -- it was 17 appended. Whether or not it existed in some form before, 18 I -- I can't help you. 19 MR. PETER WARDLE: Okay. Well one of the 20 things I'm just trying to get a grip on, and -- is what 21 were Dr. Smith's responsibilities as director of this 22 unit and who did he report to if anyone? 23 And can you help me with that, as of the 24 point in time that you got involved? 25 DR. BARRY MCLELLAN: At the point of time
851 I was involved, I felt that I had administrative 2 responsibility for all forensic services. That included 3 forensic pathology; that would therefore include forensic 4 pathology as it related to the Hospital for Sick 5 Children. 6 Now earlier in evidence, I believe when 7 Dr. Pollanen was testifying, he indicated it's just not 8 possible for he in his role to be monitoring 9 professionally all of the autopsies being performed in 10 the Province. And certainly I felt the same with respect 11 to administrative responsibility for all of the forensic 12 services taking place. 13 But it was important at the time that 14 somebody have a role, an administrative role, at the time 15 when there was no chief forensic pathologist and that's 16 why this new position was created. 17 MR. PETER WARDLE: No, and I -- and, Dr. 18 McLellan, to be fair I wasn't trying to suggest in my 19 question that you had oversight for, you know, post- 20 mortem work done by Dr. Smith for example. That wasn't 21 part of my question. 22 But let me just flip the question. As 23 Director of the Unit, did Dr. Smith have responsibilities 24 for supervising the work of others in the unit? 25 DR. BARRY MCLELLAN: Yes.
861 MR. PETER WARDLE: Okay. And this 2 document -- and again bearing in mind we don't know very 3 much about this document at this point -- suggests in the 4 second bullet point: 5 "Supervises and provides consultative 6 support for all pathologists at HSC 7 OCC, in matters of pediatric forensic 8 pathology." 9 Is that how you understood Dr. Smith's 10 responsibilities to be at the time you took this 11 position? 12 13 (BRIEF PAUSE) 14 15 DR. BARRY MCLELLAN: Yes. 16 MR. PETER WARDLE: And I want to just 17 explore with you this question about the fact that Dr. 18 Smith stayed in that position until, as I understand it 19 from your evidence, July of 2004, correct? 20 DR. BARRY MCLELLAN: Correct. 21 MR. PETER WARDLE: And so, during this 22 time you were first Deputy Chief Coroner for Forensic 23 Services starting in June '01, right? 24 DR. BARRY MCLELLAN: Correct. 25 MR. PETER WARDLE: And, then in July '02
871 you became Acting Chief Coroner, correct? 2 DR. BARRY MCLELLAN: Correct. 3 MR. PETER WARDLE: And, then in May of 4 '04 you became Chief Coroner, correct? 5 DR. BARRY MCLELLAN: It's late April of 6 '04, yes. 7 MR. PETER WARDLE: Okay. And during this 8 whole period you were working at the Grenville Street 9 location, as I understand it? 10 DR. BARRY MCLELLAN: Correct. 11 MR. PETER WARDLE: And you were 12 interacting on a daily basis with Dr. Cairns and Dr. 13 Young to the extent that they were there. I know Dr. 14 Young had other responsibilities. 15 DR. BARRY MCLELLAN: To the extent they 16 were there, I would have interacted far more often with 17 Dr. Cairns than with Dr. Young. 18 MR. PETER WARDLE: Okay. Now, I just 19 want to explore the controversy that started to develop 20 in those years, understanding you've already given 21 evidence, sir, that you did not play a central role in 22 dealing with the controversy. But I want to go back and 23 just start with January of '01 and work forward. 24 January '01, there was a withdrawal of 25 charges first in Tyrell's case and in Sharon's case,
881 correct? 2 DR. BARRY MCLELLAN: Yes, there was the 3 two (2) cases. I can't say which one came first but I 4 have no reason to dispute what you've said. 5 MR. PETER WARDLE: All right. And they 6 were both pediatric deaths that involved Dr. Smith? 7 DR. BARRY MCLELLAN: Correct. 8 MR. PETER WARDLE: And given the small 9 number of criminally suspicious deaths that occur in a 10 particular time frame, this was a pretty unusual event to 11 have charges withdrawn the same month? 12 DR. BARRY MCLELLAN: Yes, it was. 13 MR. PETER WARDLE: And in Sharon's case, 14 in particular, there was already some media following 15 this case and a bit of a public controversy, correct? 16 DR. BARRY MCLELLAN: Yes. 17 MR. PETER WARDLE: Okay. And part of 18 that controversy was that there was a physical exhibit -- 19 a cast of the girl's skull -- which had been misplaced, 20 correct? 21 DR. BARRY MCLELLAN: Correct. Now, I 22 can't indicate exactly when I became aware of that. I 23 remember reading media coverage, in and around that time, 24 but I can't say exactly when it was. 25 MR. PETER WARDLE: And I take it it's --
891 I think we were all -- we all accept this was a case that 2 was -- the original autopsy was conducted under a 3 coroner's warrant, correct? 4 DR. BARRY MCLELLAN: Correct. 5 MR. PETER WARDLE: So it would have been 6 of concern to your office that a cast of the skull had 7 been misplaced? 8 DR. BARRY MCLELLAN: Correct. 9 MR. PETER WARDLE: Okay. And then as I 10 understand it, in January of '01 Dr. Smith advised the 11 Coroner's office -- the Chief Coroner's office -- that he 12 no longer wished to perform medico-legal autopsies, 13 correct? 14 DR. BARRY MCLELLAN: Correct. 15 MR. PETER WARDLE: And within a day of 16 that, there was an announcement by Dr. Young of the 17 external review, correct? 18 DR. BARRY MCLELLAN: It was very shortly 19 thereafter. I believe it was within a day, yes. 20 MR. PETER WARDLE: And you told us that 21 that review did not proceed, and you didn't have any -- 22 you weren't involved in that decision making process, 23 correct? 24 DR. BARRY MCLELLAN: In the decision 25 making process, no. We did review earlier this week
901 notes that Mr. O'Marra had made of a meeting that I was 2 in attendance at, in and around that time, but I have no 3 recollection of being a participant in the decision- 4 making. 5 MR. PETER WARDLE: But the point, I 6 guess, I want to put to you is that although Dr. Smith 7 stopped doing medico-legal autopsies, he continued to be 8 Director of the unit with supervisory responsibilities 9 for others, correct? 10 DR. BARRY MCLELLAN: Correct. 11 MR. PETER WARDLE: And as I understand 12 it, after January of '01, Dr. Smith never did any autopsy 13 again in a criminally suspicious case, except for one 14 (1), is that right? 15 DR. BARRY MCLELLAN: To the best of my 16 knowledge, that's correct. 17 MR. PETER WARDLE: All right. And that 18 was a dehydration case; do you know when that autopsy 19 took place? 20 DR. BARRY MCLELLAN: I recall it being in 21 and around July to September of '02, but I can't tell you 22 the exact date without you bringing a document to my 23 attention. 24 MR. PETER WARDLE: And who was it who 25 allowed Dr. Smith to conduct that autopsy?
911 DR. BARRY MCLELLAN: My understanding is 2 that there was a discussion between Dr. Smith and Dr. 3 Cairns at the time. And the decision was, that based on 4 the circumstances of the case and a problem with avilla - 5 - availability of another appropriate pathologist to 6 conduct the autopsy, that the decision was made that Dr. 7 Smith would conduct the autopsy. 8 MR. PETER WARDLE: And after January '01, 9 as I understand it, Dr. Smith continued to do other 10 medico-legal autopsies in non-criminally suspicious 11 deaths, correct? 12 DR. BARRY MCLELLAN: There's a period of 13 time after January of '01 when Dr. Smith conducted no 14 coroner's autopsies. I believe he started again in and 15 around June or July of '01. 16 MR. PETER WARDLE: And that's after 17 something called the Carpenter Review, correct? 18 DR. BARRY MCLELLAN: I believe the 19 Carpenter review had been completed at that time. I 20 don't have the exact date that the Carpenter review was 21 completed today. 22 MR. PETER WARDLE: All right, and you -- 23 COMMISSIONER STEPHEN GOUDGE: Sorry, the 24 date when he resumed? June '01, roughly? 25 DR. BARRY MCLELLAN: Roughly, June '01,
921 yes, Commissioner. 2 COMMISSIONER STEPHEN GOUDGE: Thanks. 3 4 CONTINUED BY MR. PETER WARDLE: 5 MR. PETER WARDLE: And, then in May of 6 '01 you will recall, I take it, that there was a major 7 article in MacLean's Magazine about Dr. Smith. 8 DR. BARRY MCLELLAN: Correct. 9 MR. PETER WARDLE: And that article dealt 10 with a number of cases, including Amber's case and 11 Nicholas's case, correct? 12 DR. BARRY MCLELLAN: Correct. 13 MR. PETER WARDLE: And was that the first 14 time you had read about any controversy involving Dr. 15 Smith in those cases? 16 DR. BARRY MCLELLAN: I had read about the 17 Nicholas case through other sources than the MacLean's 18 article, and today I can't tell you the timing of that in 19 relationship to the MacLean's article. 20 MR. PETER WARDLE: So, do I take it from 21 that answer that what the MacLean's article had to say 22 about Amber's case was new to you? 23 DR. BARRY MCLELLAN: That's the first 24 recollection I have of reading it. I can't say that, 25 prior to that, there hadn't been discussion at a meeting
931 or a hallway discussion where I had heard about the Amber 2 case. 3 That was the first time I had been aware 4 of details around the Amber case. 5 MR. PETER WARDLE: And then very shortly 6 after that, Dr. McLellan, there are some events that took 7 place in Jenna's case, and I just want to take you to 8 that. Hopefully I will -- I'll get Bingo this time. 9 PFP144684. And I'm going to the overview report in 10 Jenna's case. 11 MS. LINDA ROTHSTEIN: It's Tab 7, 12 Commissioner. 13 COMMISSIONER STEPHEN GOUDGE: Thank you. 14 15 CONTINUED BY MR. PETER WARDLE: 16 MR. PETER WARDLE: I'm sorry, would this 17 particular document be -- we've got it. 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 20 CONTINUED BY MR. PETER WARDLE: 21 MR. PETER WARDLE: And I want to take you 22 to paragraphs -- be page 72, paragraph 124 and following. 23 24 (BRIEF PAUSE) 25
941 MR. PETER WARDLE: And I want to start if 2 I can with paragraph 128, and just by way of background, 3 Dr. McLennan -- McLellan, there is -- you'll see that 4 this Detective Constable Charmley meets with defence 5 counsel and -- who advises him that he was concerned 6 that a sexual assault on Jenna had been overlooked, and 7 that a hair noted in Jenna's vaginal area by Dr. Friesen 8 was missing, do you see that? 9 DR. BARRY MCLELLAN: I do. 10 MR. PETER WARDLE: And then if you keep 11 going through the next few paragraphs, you'll see that 12 Detective Constable Charmley eventually makes his way to 13 the Office of the Chief Coroner. And that's at paragraph 14 131. 15 16 (BRIEF PAUSE) 17 18 MR. PETER WARDLE: And he comes with a 19 list of questions, and you'll see in paragraph 131 that 20 the questions are -- appear to be given to Dr. Cairns and 21 Mr. Mainland. 22 And just stopping there. Mr. Mainland, 23 where does he fit into the picture at the Office of the 24 Chief Coroner? 25 DR. BARRY MCLELLAN: Mr. Mainland was an
951 executive assistant to Dr. Cairns and providing support 2 to The Paediatric Death Review Committee at the time. 3 MR. PETER WARDLE: It seems clear from 4 paragraphs 130 and 131 that Detective Constable Charmley 5 is investigating what had happened to this hair. 6 Do you see that? 7 DR. BARRY MCLELLAN: I do. 8 MR. PETER WARDLE: And eventually, if we 9 go over to paragraph 134 -- I'm sorry, paragraph 135, Dr. 10 Smith sends Mr. Mainland an email saying that he has the 11 hair. 12 Do you see that? 13 DR. BARRY MCLELLAN: I do. 14 MR. PETER WARDLE: That's over four (4) 15 years after the original autopsy, which was done in 1997? 16 DR. BARRY MCLELLAN: Correct. 17 MR. PETER WARDLE: And I take it that 18 this information not only made its way to Mr. Mainland, 19 but made its way to others in the Office of the Chief 20 Coroner, further up? 21 DR. BARRY MCLELLAN: I would assume so, 22 correct. 23 MR. PETER WARDLE: Okay. And were you 24 one of the people who became aware at around this time, 25 that Dr. Smith had this hair from the original autopsy?
961 DR. BARRY MCLELLAN: I can't say exactly 2 when I became aware, but I did at some point hear that 3 Dr. Smith had the hair in his office. 4 MR. PETER WARDLE: It's not standard 5 practice for a forensic pathologist to keep a physical 6 exhibit in their office, is it? 7 DR. BARRY MCLELLAN: In a circumstance 8 such as this, no. 9 MR. PETER WARDLE: Okay. And were there 10 any steps taken by the Office of the Chief Coroner at 11 this time to determine whether Dr. Smith had any other 12 physical samples from criminal cases in his office? 13 DR. BARRY MCLELLAN: I don't recall 14 whether steps were taken at that time or not. 15 MR. PETER WARDLE: And do you know what 16 steps were taken to deal with this issue internally at 17 the Office of the Chief Coroner? 18 DR. BARRY MCLELLAN: I myself was not 19 involved in any steps that were taken at that time. 20 MR. PETER WARDLE: Okay. I can't find 21 anything in the database, and I may have missed it, 22 indicating that any -- there was any written 23 communication from the Office of the Chief Coroner to Dr. 24 Smith about this issue at this time? 25 DR. BARRY MCLELLAN: I'm not aware of any
971 written communication. 2 MR. PETER WARDLE: And in fact the only 3 communication I could find around this time is the letter 4 that you wrote to Dr. Smith in January of 2002. That's a 5 document we looked at earlier this week at PFP114382. 6 7 (BRIEF PAUSE) 8 9 DR. BARRY MCLELLAN: I expect you don't 10 have a tab number to go with that. 11 MR. ROBERT CENTA: Tab Y. 12 13 CONTINUED BY MR. PETER WARDLE: 14 MR. PETER WARDLE: Tab Y. And I don't 15 want to be unfair to you, Dr. McLellan -- to some extent 16 I'm asking about your knowledge about what other people 17 were doing -- but when I look at this letter, this is a 18 very polite letter to Dr. Smith about administrative 19 issues with respect to turnaround time of reports, 20 correct? 21 DR. BARRY MCLELLAN: Correct. 22 MR. PETER WARDLE: And in retrospect -- 23 and you'll recall My Friend, Ms. Rothstein, asked you 24 these questions at the end of your evidence -- in 25 retrospect, shouldn't the Office of the Chief Coroner, at
981 this time, once it became aware of the issue regarding 2 this hair, have taken more steps to investigate what Dr. 3 Smith was up to? 4 DR. BARRY MCLELLAN: Well, I can only 5 speak to my own knowledge and involvement at the time. I 6 became aware of and was concerned about the matter of 7 turnaround time; that's why I met with Dr. Smith over 8 that specific issue. 9 I did not have carriage at that time for 10 issues around cases that you've mentioned to present, and 11 the major issue that I had at that particular time as a 12 turnaround time matter related to outstanding cases that 13 Dr. Smith had been involved with. 14 I was unable to find at the time any other 15 documentation dealing with the issue of turnaround time 16 and that's why I wrote the -- the letter at the time. 17 MR. PETER WARDLE: But, you know, my 18 question is still the same, you're part of senior 19 management now -- and I -- and I know that you're going 20 to tell me that Dr. Cairns and Dr. Young were dealing 21 with Dr. Smith, but in retrospect it appears that they 22 may not have been dealing with Dr. Smith. 23 And I guess my question is: In 24 retrospect, once the Office of the Chief Coroner became 25 of the hair, wouldn't that have been a time when some
991 alarm bells should have gone off? 2 DR. BARRY MCLELLAN: Yes. Again, I can 3 only speak to my own knowledge and own responsibility at 4 the time and what I did from January of 2001 on. I think 5 that that question and others may appropriately be put to 6 future witnesses. I can only speak to my own involvement 7 at the time, Mr. Wardle. 8 MR. PETER WARDLE: All right. Well, 9 let's now talk about your own involvement in the summer 10 of 2002 when you became Acting Chief Coroner, correct? 11 DR. BARRY MCLELLAN: Correct. 12 MR. PETER WARDLE: And as I understood 13 your evidence, you said: 14 "Dr. Young and I agreed that all 15 matters relating to Dr. Smith would 16 remain his responsibility." 17 Is that right? 18 DR. BARRY MCLELLAN: Correct. 19 MR. PETER WARDLE: And as I understand 20 it, that was at your request. 21 DR. BARRY MCLELLAN: It was. 22 MR. PETER WARDLE: And why did you make 23 that request? 24 DR. BARRY MCLELLAN: I had had 25 discussions with Dr. Young prior to that, that I was
1001 concerned that Dr. Smith was continuing to do autopsies, 2 that he was continuing to sit on two (2) committees at 3 the time, and I had concern that he was continuing in his 4 role as Director of the unit. 5 I expressed the concerns. Dr. Young felt 6 that it was appropriate for him to be continuing in those 7 roles. I respected his opinion as Chief Coroner, but I 8 indicated at the time that any ongoing matters with Dr. 9 Smith should therefore mo -- more appropriately be dealt 10 with by Dr. Young in his role as Chief Coroner, and he 11 agreed. 12 MR. PETER WARDLE: And so I take it you 13 and Dr. Young had a disagreement about Dr. Smith's 14 continued role. 15 DR. BARRY MCLELLAN: Correct. 16 MR. PETER WARDLE: Okay. And what -- 17 what rationale did Dr. Young give you in and around this 18 time for allowing Dr. Smith to continue to be in place as 19 Director, to continue to be allowed to do autopsies, and 20 contin -- to continue, at least on paper, to supervise 21 the work of other people involved in his unit? 22 What did he tell you? 23 DR. BARRY MCLELLAN: Well, my concerns 24 centred around how family members and other members of 25 the death investigation team may feel with Dr. Smith
1011 continuing to do work, as I've outlined, at a time when 2 there were outstanding concerns. 3 And Dr. Young did not share that same 4 level of concern and felt that it was appropriate for Dr. 5 Smith to be continuing. 6 I don't have any recollection of there 7 being a longer explanation provided. 8 MR. PETER WARDLE: And am I not right -- 9 COMMISSIONER STEPHEN GOUDGE: Can I just 10 ask, Dr. McLellan, was your concern about the perception 11 of families, or were you developing your own concerns 12 about Dr. Smith's competence? 13 DR. BARRY MCLELLAN: At that particular 14 time, my greater concern was that of families; a family 15 member who may receive an autopsy report prepared by Dr. 16 Smith on a uncomplicated case. But in the backdrop of 17 some of these outstanding concerns that existed that were 18 still being dealt with, I could see a family member being 19 concerned. 20 I also knew that other members of the 21 death investigation team were concerned, including some 22 in our own office. That, at that particular time, was 23 really my level of concern. 24 COMMISSIONER STEPHEN GOUDGE: It didn't 25 alarm you at all that he'd kept the hair?
1021 DR. BARRY MCLELLAN: Oh, I was quite 2 concerned about -- about him having kept the hair. I 3 guess it's difficult, in retrospect, to say whether or 4 not any one (1) issue stood out as being any greater than 5 the other. 6 I think it fair to say, at this point in 7 time, that it was the totality of the information. 8 9 CONTINUED BY MR. PETER WARDLE: 10 MR. PETER WARDLE: And just to follow up 11 that; as we get into 2002 and 2003, there are on -- the 12 controversy involving Dr. Smith, it doesn't go away. 13 DR. BARRY MCLELLAN: Correct. 14 MR. PETER WARDLE: In fact, it gets -- 15 new cases bubble up to the surface. 16 Isn't that right? 17 DR. BARRY MCLELLAN: Well the, I guess, 18 major case that I would say was a new case for me, where 19 there had not been previous coverage in the media or 20 concern expressed, would have been the Valin case. 21 MR. PETER WARDLE: And the Valin case is 22 a little later. But in 2002 and 2003, there was the 23 Kporwodu case was going through the courts. 24 DR. BARRY MCLELLAN: Correct. 25 MR. PETER WARDLE: And -- and you and Dr.
1031 Young and Dr. Cairns knew that, in that case, one of the 2 issues was a critical delay by Dr. Smith in providing a 3 report on the timing of the injuries, right? 4 DR. BARRY MCLELLAN: Correct. 5 MR. PETER WARDLE: And that matter was, 6 you know, playing itself out in full before a preliminary 7 inquiry and eventually at a trial before Justice 8 Trafford, right? 9 DR. BARRY MCLELLAN: Correct. 10 MR. PETER WARDLE: And, in this time 11 period, there were various families who were attempting 12 to go to The College of Physicians and Surgeons and -- 13 and make complaints about Dr. smith. 14 And that was all playing out in the media, 15 wasn't it? 16 DR. BARRY MCLELLAN: Correct. 17 MR. PETER WARDLE: And, still, your 18 office took no steps to remove him as Director of this 19 unit until you became Chief Coroner in the summer -- I'm 20 sorry, late April or May of 2004, right? 21 DR. BARRY MCLELLAN: Correct. 22 MR. PETER WARDLE: All right. Those are 23 all my questions for you. Thank you, sir. 24 COMMISSIONER STEPHEN GOUDGE: Thank you, 25 Mr. Wardle.
1041 Next, Mr. Sokolov...? 2 3 (BRIEF PAUSE) 4 5 CROSS-EXAMINATION BY MR. LOUIS SOKOLOV: 6 MR. LOUIS SOKOLOV: Good afternoon, 7 Doctors. My name is Louis Sokolov and I represent AIDWIC 8 at this Inquiry. 9 The first area that I'd like to take you 10 to, and particularly you, Dr. Pollanen, is the issue of 11 quality assurance. And I'd ask you to turn up the 12 October 2007 guidelines; that was the document that was 13 delivered hot off the press the other day. And the 14 number is 139 -- Mr. Registrar, 139350. 15 COMMISSIONER STEPHEN GOUDGE: We had it 16 as a loose document -- 17 MR. LOUIS SOKOLOV: Yes. 18 COMMISSIONER STEPHEN GOUDGE: -- when it 19 was passed around. I don't know whether the two (2) of 20 you got it as a loose document or not. 21 22 (BRIEF PAUSE) 23 24 CONTINUED BY MR. LOUIS SOKOLOV: 25 MR. LOUIS SOKOLOV: Do you have that or
1051 the -- I'll have the relevant sections put up on the 2 screen. 3 DR. MICHAEL POLLANEN: Which version? 4 MR. LOUIS SOKOLOV: October 2007, Second 5 Edition. 6 DR. MICHAEL POLLANEN: Yes, I have it. 7 MR. LOUIS SOKOLOV: Thank you. The 8 quality assurance and peer review section, as I read it, 9 is at pages 11 to 15 in this document. And, Mr. 10 Registrar, if you'd turn to page 11. 11 And -- and I don't propose to read all of 12 this with you, I assume, Mr. Commissioner, you'll 13 obviously pay great attention to this in due course. But 14 the -- you set out four (4) main types of quality 15 assurance there: The early central notification, The 16 peer review of the autopsy record, The guidelines, The 17 consolation. 18 Do you see that under Section 10? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. LOUIS SOKOLOV: And you say that the 21 other important aspects of quality assurance are 22 professional development and continuing medical education 23 activities? 24 DR. MICHAEL POLLANEN: Correct, yes. 25 MR. LOUIS SOKOLOV: And am I correct that
1061 that's really the -- the four (4) corners of the quality 2 assurance that you're referring to there? 3 DR. MICHAEL POLLANEN: Yes. 4 MR. LOUIS SOKOLOV: Now the -- you made 5 the point, I believe it was on Monday, in a different 6 context -- in the context of talking about ev -- the 7 evidenced based approach -- that one of the key parts of 8 a forensic pathologist's job is the communication of his 9 or her findings in testimony under oath at court? 10 DR. MICHAEL POLLANEN: Yes. 11 MR. LOUIS SOKOLOV: And the -- just to -- 12 to illustrate the importance of this in the -- in the 13 context of cases for this commission, if you would turn 14 up, I believe it's Tab 108 of your volumes. 15 And the document number, Mr. Registrar, is 16 032588. That is the memorandum. Just a moment please. 17 18 (BRIEF PAUSE) 19 20 MR. LOUIS SOKOLOV: That's the memorandum 21 that you wrote, Dr. Pollanen, of January 8, 2007. If you 22 could please turn up page 3 of that document. And under 23 paragraph 9 you wrote that: 24 "The external review revealed that 25 there were significant problems with
1071 Dr. Smith's opinion on the cause of 2 death and/or courtroom testimony in 3 several cases. Refer to the individual 4 check lists for details." 5 And just on -- on the same theme, and I 6 don't want to overly belabour it, but I think it's 7 important to -- to go back to the original source. We 8 have the December 8, 2006 -- no, I'm sorry, before -- 9 before we do that, let's stay with this document, and 10 turn over to the next page which is page 4. 11 Paragraph 16; again you highlighted the -- 12 the problems with testimony and paragraph 18, the panel 13 noted that Dr. Smith's testimony was sometimes unbalanced 14 and misleading, and there were two (2) marry -- major 15 areas of concern. 16 The first one (1), developing the 17 misleading comparisons and testimony. And the second 18 one, introducing new facts or novel concepts that were 19 not previously recorded in the autopsy report. 20 If you then turn to Tab 106 in your 21 documents, and your documents, Mr. Commissioner, and 22 that's Document Number 057040, Mr. Registrar. That's the 23 December 8 reconciliation meeting, I believe it was 24 referred to as. 25 The first reconciliation meeting; and I
1081 just want to take you then to paragraph 7 which is on the 2 final page of that document. Professor Crane puts the -- 3 the issue, somewhat, more strongly, that: 4 "In some cases there were serious 5 discrepancies between the autopsy 6 report and the court testimony. This 7 included altering the cause of death, 8 or presenting new factual findings that 9 were not recorded in the autopsy 10 report." 11 And, just to be thorough then, the -- the 12 next reconciliation meeting, the second one, was December 13 15, 2006; that's at Tab 107 of your documents and it's 14 Document 034057. 15 16 (BRIEF PAUSE) 17 18 MR. LOUIS SOKOLOV: The -- if you turn up 19 page 4 of that document -- the panel there -- at 20 paragraph 4, indicated that Dr. Smith's testimony had a 21 tendency to become unbalanced. 22 This, combined with a lack of knowledge in 23 forensic pathology, sometimes resulted in unreasonable 24 testimony and there are the three examples there. 25 When asked questions, Dr. Smith tended to
1091 develop elaborate answers which were sometimes 2 misleading. The second one; a motive and an unbalanced 3 testimony regarding force required to produce injuries 4 and three; advancing new evidence in oral testimony that 5 is not disclosed or discussed in the autopsy report. 6 So suffice it to say the -- at least in 7 some of those cases -- the manner in which the evidence 8 was presented in court posed a serious level of concern 9 to members of the panel, correct? 10 DR. MICHAEL POLLANEN: Correct. 11 MR. LOUIS SOKOLOV: And, I take it it 12 posed a serious level of concern to yourself as well? 13 DR. MICHAEL POLLANEN: They're in the -- 14 they're in the range of -- of issues that are of concern, 15 yes. 16 MR. LOUIS SOKOLOV: Right. And the -- 17 going back then to the -- this aspect of communication of 18 the findings in court being a -- a key aspect of what the 19 forensic pathologist does, I don't see anything in your 20 quality assurance other than, I assume some training to 21 try and -- and monitor that or -- or peer review; that 22 and I believe the Commissioner asked you a question about 23 that on Monday. 24 DR. MICHAEL POLLANEN: There is no 25 monitoring or peer review of courtroom testimony right
1101 now. 2 MR. LOUIS SOKOLOV: Right. 3 DR. MICHAEL POLLANEN: All the mechanisms 4 would be largely informal. So, for example, the fellows 5 and residents that would rotate in our unit would watch 6 the pathologists testify and gain some experience in that 7 process but, certainly, right now we don't have a - an 8 audit or peer review process for testimony. 9 MR. LOUIS SOKOLOV: Now, the -- the 10 Commissioner asked you on Monday whether that would be 11 difficult and you replied that that would be very 12 difficult to put forward? 13 DR. MICHAEL POLLANEN: It would, yes. 14 MR. LOUIS SOKOLOV: And I -- I expect 15 that I and some other people in this room may recommend a 16 process like that at the end of the day and the 17 Commissioner -- if he sees fit to entertain such a 18 recommendation, how would you go about dealing with that 19 difficulty? 20 How could you do that? 21 DR. MICHAEL POLLANEN: How could you 22 provide a peer review of courtroom testimony - 23 MR. LOUIS SOKOLOV: Yes. 24 DR. MICHAEL POLLANEN: -- of a forensic 25 pathologist --
1111 MR. LOUIS SOKOLOV: Yes. 2 DR. MICHAEL POLLANEN: -- for example in 3 a trial? 4 MR. LOUIS SOKOLOV: Yes. 5 DR. MICHAEL POLLANEN: Is that your 6 question? 7 MR. LOUIS SOKOLOV: Yes. 8 DR. MICHAEL POLLANEN: How would you 9 design such a process? Well, I think you -- my starting 10 point, if you would consider the issues, would be to, for 11 example, look at how the Centre of Forensic Science has 12 approached the issue with the court monitor letter. 13 And that is part of their -- of a -- of a 14 greater issue that we haven't yet discussed which is 15 accreditation, and that's an accreditation requirement 16 for -- for certain forensic accreditations and the 17 science as opposed to the medicine. So that would be a 18 good source to start looking at. 19 However, you quickly identify problems 20 with applying that to forensic pathology. And the -- the 21 main issue, sort of in comparison to the forensic 22 scientists, is that the forensic pathologists are 23 physicians and there is -- there are processes for 24 physicians, in terms of oversight of physicians, that 25 would tend to be traditionally applied in testimony.
1121 And that is because we're registered with 2 a college; whereas forensic scientists are not registered 3 with a body so they require those additional processes 4 such as the court letter. The -- 5 COMMISSIONER STEPHEN GOUDGE: Could I 6 make sure I understand that? I mean, is that saying, 7 well, the CPSO should be monitoring Court performance? 8 DR. MICHAEL POLLANEN: Well, it's -- what 9 I'm saying is that it's out -- within the scope of the 10 professional aspects of what the pathologist does, so one 11 (1) opportunity for that is through the college. 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 DR. MICHAEL POLLANEN: The other issue 14 that arises with pathologists providing peer review in 15 Court is the issues related to disclosure and how do you 16 devise a system where, for example, a forensic 17 pathologist is sitting in the courtroom watching a 18 colleague testify and, fundamentally, agreeing with the 19 testimony, but, perhaps, having some nuanced differences 20 and interpretation or suggestions about how testimonies 21 should be given or ought to be given. 22 And to what extent does the pathologist 23 who is essentially using this as an exercise in 24 professional development have an obligation then to enter 25 into the criminal justice process? What's the dividing
1131 line, as it were? 2 And that's a very real issue because it 3 may have undesirable affects in the criminal justice 4 process. 5 The other issues that emerge from that 6 include manpower. If you look at The Centre of Forensic 7 Science -- and I've discussed this aspect with them and 8 have certainly been to committee meetings where this has 9 been discussed; it's -- it's quite a major resource 10 intensive process to have peer review. 11 So in other words, supervisors have to 12 travel, sometimes great distances to go to Court with the 13 expert that's testifying, so it takes two (2) people out 14 of the work rotation. 15 16 CONTINUED BY MR. LOUIS SOKOLOV: 17 MR. LOUIS SOKOLOV: Let me just stop you 18 right there, if I may. And that's not a problem that 19 would -- that would be present if the review was done on 20 the basis of transcripts; there's nothing stopping 21 transcripts being ordered and then being reviewed at a 22 later date. 23 DR. MICHAEL POLLANEN: Correct. You 24 could do -- you could alter that particular problem with 25 a transcript review. The -- the other issues associated
1141 with review of testimony include things like the Court 2 letter. 3 And if, for example, you have a -- a 4 contentious case where the expert evidence is hotly 5 debated in Court and the -- for whatever reason -- well- 6 founded reasons, or not particularly well-founded reasons 7 -- those comments are committed to writing and then go to 8 a monitoring process. You then get issues related to how 9 those results should be -- then be dealt with. 10 So, there is -- and what I mean to say is 11 that it's not simply a monitoring process then. You have 12 to have certain policies in place to deal with corrective 13 measures, so the -- they're linked. 14 And that comes with it a separate set of 15 issues such as; what obligation does the organization 16 then have to inform the college, what obligations are 17 there for further disclosure of the issues related in the 18 -- brought to the attention of, for example, our office 19 through the -- through the letter. 20 And those -- those issues need to be 21 contemplated as related because they -- they are pre -- 22 they predictably flow from the first. 23 So it's actually quite a difficult area, 24 and the approach that we've used, so far, is through 25 education, as opposed to peer review and monitoring.
1151 MR. LOUIS SOKOLOV: So, I -- I take it 2 from your -- your last answer, then, that -- that there 3 hasn't been any assessment of the manner in which other 4 forensic pathologists in your office are giving evidence 5 since the issues regarding Dr. Smith came to light? 6 DR. MICHAEL POLLANEN: In an organized 7 fashion, though. 8 MR. LOUIS SOKOLOV: And what about in -- 9 in an unorganized fashion? 10 DR. MICHAEL POLLANEN: Well, sometimes we 11 discuss our evidence together where one of us has 12 testified in -- in Court and there's been a certain line 13 of questioning and we may actually discuss how best to 14 approach that line of questioning later. 15 Sometimes we exchange transcripts to see 16 how one (1) person has dealt with a particular issue. 17 Those are the types of things that we engage -- engage 18 in. 19 COMMISSIONER STEPHEN GOUDGE: Can I just 20 ask a question related to this, Mr. Sokolov? Mr. Sokolov 21 -- again this discussion with you, Dr. Pollanen, by 22 taking him to the 2007 guidelines and the quality 23 assurance piece for autopsies. 24 Is it fair to say that those quality 25 assurance steps are largely aimed at ensure that the
1161 autopsy report, before it is released, is as accurate as 2 possible? Or are some -- do some of them implicitly 3 contemplate, after the fact of the autopsy and the 4 autopsy report, a review of how good it was? 5 DR. MICHAEL POLLANEN: These are meant to 6 be procedures that occur before the report is released to 7 the Crown. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 Because there is one (1) sort of methodological 10 difference between testifying and producing a report. 11 It's hard to vet testimony before it's given. 12 DR. MICHAEL POLLANEN: Certainly, yes. 13 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 14 Sokolov. I was just curious to know whether -- do you 15 have any after-the-fact review of autopsy reports to see 16 how good they were, with hindsight, as opposed to quality 17 assurance to make sure they're as good as possible going 18 out the front door? 19 DR. MICHAEL POLLANEN: After the fact -- 20 after -- 21 COMMISSIONER STEPHEN GOUDGE: After the-- 22 DR. MICHAEL POLLANEN: -- trial? 23 COMMISSIONER STEPHEN GOUDGE: Yes. 24 DR. MICHAEL POLLANEN: No, no. 25
1171 CONTINUED BY MR. LOUIS SOKOLOV: 2 MR. LOUIS SOKOLOV: Let me -- let me 3 turn, then, to another issue in my time remaining. And 4 this is a theme that you dealt with extensively, 5 particularly on Monday, and that was the evidence-based 6 approach that you prefer and that you advocate and, 7 indeed, which is now the policy of your office. 8 DR. MICHAEL POLLANEN: Well, it certainly 9 appears in the guidelines. 10 MR. LOUIS SOKOLOV: Yes. So, and -- and 11 as I understand it, one (1) of the -- the main aspects, 12 again, dealing with the second key part of what a 13 forensic pathologist does -- the communication in court - 14 - is it brings a level of transparency and accountability 15 to the opinion that the pathologist presents in court. 16 Is that right? Is that a fair 17 characterization? 18 DR. MICHAEL POLLANEN: More transparency 19 than accountability, but, yes. 20 MR. LOUIS SOKOLOV: Well, and 21 accountability in the sense that the -- the underlying 22 basis for the opinion can be checked and verified by 23 other persons. 24 DR. MICHAEL POLLANEN: Yes. Can be 25 tested, yes.
1181 MR. LOUIS SOKOLOV: Right. And you made 2 the point that an evidence-based approach is compatible 3 with cross-examination as opposed to the traditional 4 authoritative approach which you refer to as "sometimes 5 quite refractory to cross-examination;" I believe was 6 your terminology. 7 DR. MICHAEL POLLANEN: Yes. 8 MR. LOUIS SOKOLOV: And refractory in the 9 sense because, as you know, for one to probe or test the 10 basis of an opinion, you have to probe or test the 11 underlying facts or evidence that go into the opinion. 12 DR. MICHAEL POLLANEN: And reasoning, 13 logic -- yes. 14 MR. LOUIS SOKOLOV: Right. And so if 15 there are elements of the opinion which are not 16 transparent, it's "refractory", as you put it? 17 DR. MICHAEL POLLANEN: Yes. 18 MR. LOUIS SOKOLOV: Now, the -- the 19 process that -- that you describe includes a large amount 20 of communication with other persons; such as the coroner, 21 such as the police, such as other experts or clinical -- 22 clinical treaters, for example. 23 DR. MICHAEL POLLANEN: Members of the 24 team, yes. 25 MR. LOUIS SOKOLOV: Yes. And, as I
1191 understand it; these other sources of information, very 2 little parts of them or very few parts of them are going 3 to be in writing. Most of these are going to be verbal 4 conversations. 5 Is that fair? 6 DR. MICHAEL POLLANEN: Some of it will be 7 verbal. Much of it will be written. And there is now a 8 greater trend to creating a written record of that 9 communication. 10 MR. LOUIS SOKOLOV: Let's talk then about 11 information from the police, for example; information 12 from the police when the pathologist attends the scene. 13 Is that going to be verbal or is that 14 going to be written? 15 DR. MICHAEL POLLANEN: Well, the 16 information will be transferred verbally to the 17 pathologist. 18 MR. LOUIS SOKOLOV: Yes. 19 DR. MICHAEL POLLANEN: And the 20 pathologist then has different -- different options open 21 to them. They may, as I do when I go to the scene, bring 22 a dictaphone and dictate as I walk through the scene. 23 And I will include, in that dictation, a 24 summary of what the police have informed me. 25 MR. LOUIS SOKOLOV: And is that your --
1201 just your personal practice, or is that a standard 2 practice? 3 DR. MICHAEL POLLANEN: It's a variable 4 practice. 5 MR. LOUIS SOKOLOV: All right. Is -- is 6 there any reason why that shouldn't be dictated as a 7 standard practice amongst forensic pathologists? 8 DR. MICHAEL POLLANEN: Well, some people 9 like to dictate; some people like to take notes. Some 10 people like to, after the fact, sit at a computer and 11 type out the information. It's -- it's really sort of 12 personal preference. 13 MR. LOUIS SOKOLOV: Right. Is there any 14 reason why there can't be a policy that forensic 15 pathologists have to reduce to writing, in that 16 relatively contem -- contemporaneously fashion, all of 17 the relevant information that they receive from others at 18 the scene? 19 DR. MICHAEL POLLANEN: There's no reason 20 why that should not be done. 21 COMMISSIONER STEPHEN GOUDGE: But I take 22 it it's the best practice from your perspective? 23 DR. MICHAEL POLLANEN: Yes, that's 24 certainly the way I would like to see people practice. 25 That's the way I practice.
1211 2 CONTINUED BY MR. LOUIS SOKOLOV: 3 MR. LOUIS SOKOLOV: And I want to then 4 turn to -- to this issue that was -- that you dealt with 5 the other day and are dealing with again today; the idea 6 of a forensic pathologist using a filter in his or her 7 mind to separate out the irrelevant information. 8 And the -- the first point I'd like to ask 9 you about is, do you have any -- any list or any 10 comprehensive outline of what the types of relevant 11 information are as opposed to the irrelevant information? 12 And you gave the example as -- of a 13 confession as being something that's irrelevant and 14 should be excluded from the forensic pathologists 15 consideration. 16 And Mr. Wardle took you to an earlier 17 example where a -- where information regarding the -- the 18 marital status or the romantic status of one of the 19 parents was put into a report, and you agreed that that 20 was irrelevant information. 21 DR. MICHAEL POLLANEN: Correct. 22 MR. LOUIS SOKOLOV: So beyond it being 23 something where you know it when you see it, is there any 24 way that you can, more comprehensively, articulate for 25 the forensic pathologist what they're supposed to include
1221 and what they're supposed to filter out? 2 DR. MICHAEL POLLANEN: Include anything 3 that's relevant to an evidence-based opinion, and exclude 4 those things that are not. 5 MR. LOUIS SOKOLOV: That -- help me with 6 that; I find that to be a bit circular. 7 DR. MICHAEL POLLANEN: Well, I would say 8 that there's no list that one can give to ensure good 9 judgment. I mean, some of this will ultimately come down 10 to judgment, and the best that we can hope to do, in my 11 view, is to provide a framework -- a valid framework -- 12 within which to practice forensic pathology. 13 And that is, in my view, the evidence- 14 based framework. And -- and do what we can to promote an 15 environment which fosters excellence. And what I'm 16 talking about there are things like collaboration between 17 experts, open lines of communication, adequate access to 18 ancillary testing. 19 These -- these are the concepts that 20 embody this approach that I'm -- that I'm suggesting. 21 But is there a recipe for the right answer? There's no 22 recipe. There's a framework within to -- within which we 23 work that we hope provides us something close to the 24 truth. 25 If we search for it, we'll let the
1231 evidence guide us there. But I -- I -- there is no 2 recipe for it, and there's no short list of things that 3 is going to be relevant in this case and not relevant in 4 that case. 5 MR. LOUIS SOKOLOV: Let me just try and - 6 - and probe that a little further, and -- 7 COMMISSIONER STEPHEN GOUDGE: You have 8 about five (5) minutes, Mr. Sokolov. 9 MR. LOUIS SOKOLOV: Yes. 10 11 CONTINUED BY MR. LOUIS SOKOLOV: 12 MR. LOUIS SOKOLOV: If -- would you 13 consider, in your own view as a forensic pathologist, the 14 socioeconomic status of a family to be a relevant factor 15 that you sh -- should be considering, or is that 16 something that should be filtered out? 17 DR. MICHAEL POLLANEN: Well, I -- I'm 18 sure if I sat long enough I would find an example where 19 the socioeconomic background might in fact be relevant. 20 MR. LOUIS SOKOLOV: All right. 21 DR. MICHAEL POLLANEN: But I think what - 22 - if I understand what you're -- what you're saying is 23 that when you have a criminally suspicious case or 24 homicide, could there be factors or bits of history that 25 are given to the pathologist that are not necessary to
1241 produce an evidence-based opinion? The answer is yes 2 that frequently happens. 3 And the path -- how to guard against that 4 includes exercising judgment and not factoring those 5 extraneous bit of information into the opinion, and the 6 way to ensure that are through the mechanisms that I've 7 described; sort of, for example, the evidence-based 8 framework. 9 MR. LOUIS SOKOLOV: Now, I -- I take it 10 you're of the view, and I'm -- I'm not disputing you that 11 you, believe that you personally have a good filter and 12 that you can go through this process in a professional 13 and detached and responsible way. 14 DR. MICHAEL POLLANEN: I try my best. 15 MR. LOUIS SOKOLOV: And -- and again, I'm 16 sure that you do, but what I'm having some difficulty 17 understanding is what processes are in place to ensure 18 that the other people who are out there doing autopsies 19 and offering testimony in Court in criminally suspicious 20 cases have good filters. 21 Or do we just leave it up to their 22 individual judgment and -- and hope that they -- the know 23 how to exercise it? 24 DR. MICHAEL POLLANEN: Up until recently 25 there has been no training program, domestic training
1251 program for forensic pathology. Now, the Royal College 2 has identified forensic pathology as a specialty and that 3 will form part of the training. 4 MR. LOUIS SOKOLOV: All right. So it's a 5 training issue then? 6 DR. MICHAEL POLLANEN: It's a training 7 issue, yes. 8 MR. LOUIS SOKOLOV: Thank you, Mr. 9 Commissioner. Thank you, Doctors. Those are my 10 questions. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 12 Sokolov. 13 MS. LINDA ROTHSTEIN: Just to assist, 14 we're going to ask the registrar to call up on the screen 15 -- the schedule is not revised and proposed for after 16 lunch. This has been revised yet again, Commissioner, 17 from the one you have. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 Okay, so on this schedule we will begin at 2 o'clock with 20 you, Ms. Greene? 21 MS. MARA GREENE: Yes. 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 Okay, let's rise now then until 2 o'clock. 24 25 --- Upon recessing at 12:42 p.m
1261 --- Upon resuming at 2:00 p.m. 2 3 THE REGISTRAR: All rise, session 4 resumed. Please be seated. 5 COMMISSIONER STEPHEN GOUDGE: Ms. 6 Greene...? 7 MS. MARA GREENE: Good afternoon. 8 COMMISSIONER STEPHEN GOUDGE: Good 9 afternoon. 10 11 CROSS-EXAMINATION BY MS. MARA GREENE: 12 MS. MARA GREENE: My name is Mara Greene, 13 and I'm one (1) of the lawyers acting for the Criminal 14 Lawyers Association. I think this afternoon I've got one 15 (1) main area that I'd like to go into with most likely - 16 - I'm mostly going to be talking to Dr. Pollanen. 17 My understanding of the evidence so far is 18 that pediatric forensic pathology is an inexact science. 19 Is that right? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. MARA GREENE: And that it's based on 22 interpretation? 23 DR. MICHAEL POLLANEN: Yes. 24 MS. MARA GREENE: And that is in an area 25 where reasonable experts can disagree?
1271 DR. MICHAEL POLLANEN: Yes. 2 MS. MARA GREENE: So -- and when we talk 3 about reasonable experts being able to disa -- to 4 disagree, we're talking about reasonable experts having 5 reasonable opinions that are different on the same 6 subject matter, or based on the same evidence? 7 DR. MICHAEL POLLANEN: That sometimes 8 occurs, yes. 9 MS. MARA GREENE: Okay. And taking that 10 concept then, I want to step back to the process in your 11 office, and then the process moving into the court 12 process. 13 If we start from that premise, that 14 reasonable experts can disagree on the same facts, in 15 your office you've already told us about the case 16 conference and how that's an opportunity early on for a 17 multi-disciplinary approach for people to sit and discuss 18 the case. 19 Is that right? 20 DR. MICHAEL POLLANEN: Yes. 21 MS. MARA GREENE: And at that conference, 22 it is an opportunity for different opinions to be voiced 23 about the evidence thus far? 24 DR. MICHAEL POLLANEN: Yes. 25 MS. MARA GREENE: Is that right?
1281 DR. MICHAEL POLLANEN: Yes. 2 MS. MARA GREENE: And sometimes 3 reasonable persons at that conference will have different 4 opinions about that evidence? 5 DR. MICHAEL POLLANEN: Yes. 6 MS. MARA GREENE: And that in fact does 7 happen, is that right? 8 DR. MICHAEL POLLANEN: It does, yes. 9 MS. MARA GREENE: And what is the 10 mechanism by which those differing opinions are recorded? 11 DR. MICHAEL POLLANEN: Well, you're 12 talking now about a case conference, and if I understand 13 what you're talking about, just so we're clear on the -- 14 on the same issue, this is a case conference called by 15 and chaired by the coroner which involves the different 16 members of the investigation team and may or may not 17 involve the pathologists. 18 But in the circumstance where the 19 pathologist is involved, and there is another 20 pathologist, for example, in attendance, and there is a 21 difference of opinion, that difference of opinion may be 22 part of a consensus building approach to get at the 23 correct diagnosis. Or a collaborative approach where, 24 for example, one (1) pathologist might say to another, 25 Perhaps you should try this test or do this type of
1291 examination. And so on that basis there may be 2 reasonable disagreement, but there is a collaboration 3 that sort of continues this search for the truth. 4 So -- so most of the time the -- the 5 outcome of the meeting is not continued polarization or 6 disagreement between the experts. 7 The -- the -- in other words, the case 8 conference is not designed to polarize experts. It's 9 designed as a process to continue managing or 10 investigating the case. 11 But if the process does result in a 12 fundamental polarization where, you know, two (2) 13 pathologists just cannot agree on a substantive issue. 14 I can tell you that the practice has been 15 in -- recently, to document and transmit that 16 information to the Crown. 17 MS. MARA GREENE: Okay, so, I wanted to 18 get that -- just two (2) steps back. That case 19 conference, first of all, is there a process for taking 20 notes or recording the discussions that occur at that 21 case conference? 22 DR. MICHAEL POLLANEN: Yes. 23 MS. MARA GREEN: All right. And is that 24 each individual takes their own notes? Is there an 25 assigned note-taker?
1301 DR. MICHAEL POLLANEN: The policy of the 2 Office of the Chief Coroner at this time is that there -- 3 the Regional Coroner produces a note about the case 4 conference, records the people in attendance and records 5 the outcome of decisions made. 6 MS. MARA GREENE: And I think what you've 7 indicated is that if, at the conclusion of the meeting, 8 there is still disagreement, that gets passed on to the 9 prosecuting attorney -- to Crown Counsel. 10 DR. MICHAEL POLLANEN: Certainly, in my 11 experience, yes. 12 MS. MARA GREENE: And is that a policy 13 that that is to go to the Crown Counsel? 14 DR. MICHAEL POLLANEN: It's not a written 15 policy, but it is -- it flows from the guidelines. The 16 issues of disclosure, you know -- the -- that particular 17 eventuality has not been documented somewhere to say that 18 if two (2) pathologists disagree in a case conference, 19 that disagreement must be recorded and transmitted to the 20 Crown, but it's embodied by the process that I've talked 21 about. 22 MS. MARA GREENE: Anyone reading the 23 guidelines would know that's expected of them? 24 DR. MICHAEL POLLANEN: Yes. 25 MS. MARA GREENE: So there's no need to
1311 create a separate document, or would it be beneficial, 2 out of -- out of caution, to create a separate -- 3 separate document? 4 DR. MICHAEL POLLANEN: Or add it to the 5 next revision of the guidelines, for example. 6 MS. MARA GREENE: Okay. Now, the next 7 step -- and you'll have to excuse my confusion on this - 8 - is within your -- within the office of the Pathology 9 Department, and once you have the case conference and a 10 report is ultimately generated and given to the Crown, 11 besides the case conference, is there another opportunity 12 for review of the substance of the opinion before it goes 13 to the Crown's office? 14 DR. MICHAEL POLLANEN: So, just to 15 reconstruct this. The report has gone through the 16 quality processes that I've described earlier on. 17 MS. MARA GREENE: Right. 18 DR. MICHAEL POLLANEN: And the 19 pathologist then transmits the report to the coroner, and 20 the corner has then transmitted the report to the Crown. 21 So which stage would you like me to 22 address? 23 MS. MARA GREENE: The stage before the 24 coroner. 25 DR. MICHAEL POLLANEN: So, before the
1321 coroner would be our quality processes. And once the 2 quality process scheme is finished, then the report would 3 go to the coroner; the coroner would produce it to the 4 Crown. 5 MS. MARA GREENE: And in your quality 6 assurance process which, when you look at -- is it 7 evidence-based? Do you look at the report for all the 8 key things you've outlined? 9 Is there -- if there -- if a different 10 opinion arises then -- has that ever happened, first of 11 all; a different opinion arising then, in that process? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. MARA GREEN: And what happens with 14 that different opinion at that stage? 15 DR. MICHAEL POLLANEN: Typically, a 16 separate report is written by the pathologist who is -- 17 well, it's a -- this is a larger issue. I can give you 18 -- I can give you the range of options, okay? 19 So let's take -- let's take it to the 20 point that we have a case where there has been a 21 significant divergence in expert opinion, and let's take 22 it to the point of prior to report going to Crown. 23 So the different options that are open are 24 a quality assurance audit which identifies no issue, a 25 quality assurance audit that would precipitate a
1331 conversation between the two (2) experts to arrive at 2 some type of shared view or collaborative process to 3 think about the conclusions offered. 4 In the rare case, but, admittedly, it does 5 happen -- in the rare case where the review process or 6 the quality assurance process comes to a conclusion that 7 the initial autopsy was inadequate or incomplete, the 8 body may be exhumed and a second autopsy is performed. 9 MS. MARA GREENE: I don't want to get 10 into where there's a prob -- problem with the quality 11 assurance. I want to talk about where reasonable experts 12 disagree. 13 So you have a report that's reasonable and 14 the conclusion is evidence based and it's not an 15 incorrect conclusion, it's reasonable, and then a second 16 reviewer comes to a second reasonable but different 17 opinion. 18 DR. MICHAEL POLLANEN: You'll have to 19 assist me with an example. 20 MS. MARA GREENE: Well, I can't which is 21 why I started -- my first point was are there -- is this 22 the kind of science where reasonable experts can 23 reasonably disagree? 24 DR. MICHAEL POLLANEN: Yes. 25 MS. MARA GREENE: And you indicated yes.
1341 And so accepting that -- 2 DR. MICHAEL POLLANEN: Okay. Let me re- 3 frame your question. Are you asking me does our review 4 process capture the spectrum of reasonable opinion to 5 generate a separate document? 6 MS. MARA GREENE: Yes. 7 DR. MICHAEL POLLANEN: The answer is not 8 likely. And the reason for that is if you -- if you go 9 to the guidelines for Autopsy Practice, second edition, 10 last page this is the scheme for the peer review form. 11 And the review of expert opinions which is 12 the final section contemplates three (3) questions. 13 Is a cause of death independently 14 reviewable? We discussed that. 15 Do you agree with the cause of death? 16 Well, you might agree with the person's cause of death 17 but have a different nuanced interpretation, for example, 18 of how the cause of death statement might be worded. 19 Do you agree with the other medical legal 20 opinions? Same -- same thing. 21 So in other words you may -- you may come 22 to a view that you agree with their opinion because it's 23 reasonable. You may hold a different view but it's not 24 sufficiently different because of the concept that you're 25 talking about to generate something other than a "yes" on
1351 the checklist. 2 MS. MARA GREENE: Okay. So there's no 3 process for sort of refining it at that stage? 4 DR. MICHAEL POLLANEN: At this stage, no. 5 MS. MARA GREENE: Okay. I then want to 6 go -- 7 COMMISSIONER STEPHEN GOUDGE: Can I ask a 8 question here, Ms. Greene, because lawyers have this 9 concept of right/wrong/reasonable as distinct concepts 10 and I'm interested as to whether this document 11 contemplates the same kind of thing. 12 Suppose, as a team member you came to the 13 conclusion, on the second last line, that you had a 14 different view of the cause of death but the cause of 15 death put forward by the pathologist was in your view 16 reasonable. 17 Which box would you check? 18 DR. MICHAEL POLLANEN: I would likely 19 have a conversation with the pathologist to ascertain and 20 understand their view. And I may in that circumstance 21 suggest for example an enlargement of their narrative 22 opinion -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. MICHAEL POLLANEN: -- to explore 25 perhaps issues or areas that I've identified as more
1361 important and so -- to sort of embed that in the report. 2 But it would be really an exchange between the peer 3 reviewing pathologist and the original pathologist. 4 If you felt strongly about the matter, 5 though, let's say you felt that the opinion was 6 reasonable but you in fact disagreed with it then you 7 would in all likelihood initiate a parallel process if 8 the pathologist did think it was appropriate to 9 incorporate that information in their report. 10 11 CONTINUED BY MS. MARA GREENE: 12 MS. MARA GREENE: I want to go back to 13 the scenario where you talk -- where you indicate that 14 you would talk to the other pathologist and maybe ask 15 them to expand a report. 16 How would that be disclosed ultimately to 17 the Crown and then to the defence? 18 Is the document written up where the peer 19 reviewer indicates I've had this discussion, I made these 20 suggestions and this is how I would change it? 21 DR. MICHAEL POLLANEN: Yes, there would 22 be -- there would be some record in -- in the file about 23 that interchange. 24 MS. MARA GREENE: And then want -- 25 DR. MICHAEL POLLANEN: An email
1371 correspondence or telephone message. 2 MS. MARA GREENE: I want to take it to 3 the step further which is the trial process, because at 4 some point what happens is the autopsy report and 5 supporting documents go to the -- the Crown and then to 6 the defence counsel, and in many cases that counsel then 7 retains another expert who creates a either similar 8 opinion or a second opinion. 9 DR. MICHAEL POLLANEN: In very few cases 10 that happens. 11 MS. MARA GREENE: Okay. Well, in the 12 case where it does happen and a second opinion is 13 generated as a result does -- is it the expectation that 14 your office would get the second opinion so that the 15 original pathologist can review it? 16 DR. MICHAEL POLLANEN: We would certainly 17 like to have that second opinion, but it is my 18 understanding that that's not a requirement. 19 MS. MARA GREENE: Okay. It would be 20 beneficial in the truth finding process; it's free to 21 have that document. 22 DR. MICHAEL POLLANEN: It's all 23 compatible with the search for the truth platform; that 24 it would -- most forensic pathologists would be -- would 25 welcome the opportunity to hear and examine what another
1381 colleague had to say about the case. 2 Now, I'm -- clearly there are human 3 elements involved and perhaps some egos may get involved 4 in this process, but -- but ultimately it is -- it is 5 professionally beneficial and beneficial to the criminal 6 justice system to have that engagement among experts. 7 The point here being that the -- the 8 forensic expert -- the forensic pathologist -- is 9 supposed to be above the fray, so we're supposed to be 10 engaged in a professional activity to put forward expert 11 opinions into the Court and not to become too closely 12 identified with either the -- the prosecution or the 13 defence, so this type of reciprocal disclosure really 14 facilitates that process. 15 And I just wanted to enlarge on one thing 16 that I, perhaps, didn't do justice to. When we were 17 talking about interactions between the peer reviewing 18 pathologist and the original pathologist, there's another 19 important aspect that we have to keep in mind and that's 20 professional autonomy. 21 A lot of these processes that we're 22 talking about are aimed at increasing the quality, and 23 part of the resistance to them sometimes is because they 24 -- they may be perceived to a erode professional 25 autonomy; in other words, the right of the expert to come
1391 to their own view and to give their own view. 2 And that's -- that's a challenge when 3 we're dealing with quality processes like this because 4 you want to have -- it would be nice to say that we have 5 this free and open collaborative communicative process, 6 but it can be challenging sometimes for, you know, for 7 example, my -- one (1) of my reports being reviewed and a 8 pathologist calling up and saying, "Well, I don't think 9 you actually got that quite right." 10 There is an -- there is an element that 11 you have to get past to then get into the engagement, so 12 it's -- it's not as simple as -- perhaps as it appears on 13 the surface. 14 COMMISSIONER STEPHEN GOUDGE: Ms. Greene, 15 you're running out of time I'm afraid. 16 17 CONTINUED BY MS. MARA GREENE: 18 MS. MARA GREENE: I'm going to just 19 finish this last question. When you -- if you do get the 20 second opinion and it is a -- viewed to be a reasonable 21 opinion, but different from the one of your office, what 22 is the approach? 23 DR. MICHAEL POLLANEN: Offices don't have 24 opinions. 25 MS. MARA GREENE: Well, no -- well, no,
1401 given the pathologist who created the original autopsy 2 report. So, if the second opinion coming in is a 3 different opinion, but reasonable, right, and the 4 pathologist is alerted to it, is there a protocol in 5 place for how the pathologist is to deal with that second 6 opinion? 7 DR. MICHAEL POLLANEN: No. You're 8 talking about a defence opinion. 9 MS. MARA GREENE: Well, yeah, but -- 10 DR. MICHAEL POLLANEN: A reciprocally 11 disclosed defence opinion. 12 MS. MARA GREENE: Right, which would also 13 be a second opinion. 14 DR. MICHAEL POLLANEN: Correct. There's 15 no guideline for that. 16 MS. MARA GREENE: And so what would you 17 expect to happen if that second opinion is reasonable and 18 supportable, but -- on the evidence, but different? 19 DR. MICHAEL POLLANEN: It would largely 20 depend on the case, I think. 21 MS. MARA GREENE: And can you -- 22 DR. MICHAEL POLLANEN: Well, I think -- 23 MS. MARA GREENE: -- elaborate on that? 24 DR. MICHAEL POLLANEN: What I would like 25 to see happen would be that the report went to the
1411 original pathologist and the re -- the original 2 pathologist examined that report and in -- in pre -- in 3 some circumstances communicate with the defence 4 pathologist -- if you want to view it like that -- to 5 undergo the same type of collaborative process that I've 6 described in our quality assurance system. 7 MS. MARA GREENE: Okay, thank you. I 8 have no further questions. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Greene. 11 ALST. Mr. Falconer...? 12 13 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 14 MR. JULIAN FALCONER: Good afternoon, Mr. 15 Commissioner. Dr. McLellan, Dr. Pollanen, my name is 16 Julian Falconer, and I act on behalf of Aboriginal Legal 17 Services of Toronto and Nishnawbe Aski-Nation. 18 For the record, Aboriginal Legal Services 19 of Toronto is a multi-service Aboriginal Legal Service 20 Agency providing services to Aboriginal communities 21 across the province. 22 In terms of Nishnawbe Aski-Nation, it is a 23 political organization that represents forty-nine (49) 24 First Nations Communities in Northern Ontario, spanning 25 approximately forty-five thousand (45,000) First Nations
1421 members, and occupying approximately two thirds (2/3s) of 2 the province of Ontario. 3 With that weight on my shoulders, I -- I 4 want to ask, primarily, frankly, Dr. McLellan some 5 questions with respect to the delivery of services to 6 remote communities. 7 Dr. McLellan, I picked up from your 8 institutional report, or the institutional report of the 9 Office of the Chief Coroner, which is reflected as -- as 10 I understand as a separate binder. 11 And it's -- in terms of document numbers, 12 is Document 16003 -- 160003. What I gleaned from certain 13 references there, and in other aspects of the materials, 14 that there's an acknowledged reality that there is a 15 challenge in delivering services to remote communities, 16 and then I also picked it up from reading the transcripts 17 of your evidence and listening to you on the web cast, is 18 that fair? 19 DR. BARRY MCLELLAN: Yes. 20 MR. JULIAN FALCONER: And I also picked 21 up the reference to the delegation of an investigative 22 coroner's powers in certain circumstances given -- 23 depending on the remoteness of access. 24 Is that fair? 25 DR. BARRY MCLELLAN: Yes.
1431 MR. JULIAN FALCONER: Could you explain 2 that delegation a little bit? 3 DR. BARRY MCLELLAN: In circumstances 4 where a coroner is unable to attend at a death scene, the 5 Coroner's Act provides legislative authority for the 6 coroner to identify a police officer or a legally 7 qualified medical practitioner to act at the scene and 8 there by provide assistance with the investigation. 9 MR. JULIAN FALCONER: And when one has 10 regard to the guidelines for death investigations, and of 11 course I'm referring -- I'll provide the site to you. 12 I'm referring to what appears in your Volume I at Tab 10, 13 the guidelines of April 12th, 2007. 14 It's apparent that one (1) of the criteria 15 you develop is where it's necessary to travel for more 16 than sixty (60) minutes. 17 Is that fair? You'll see that at, Mr. 18 Commissioner, your Volume I, Tab 10. 19 DR. BARRY MCLELLAN: And which specific 20 page are you looking at? Is it the investigative 21 coroners attendance at scene, Mr. Falconer? 22 MR. JULIAN FALCONER: Yes. So if one has 23 regard -- it -- it -- there's subsections called 24 timeliness of investigative coroner's response, and then 25 if one has regards specifically to page 9 of that
1441 document, which is Document 032504. If one has regard to 2 page 9: 3 "When the time to travel to a death 4 scene is more than sixty (60) minutes." 5 Do you see that? 6 DR. BARRY MCLELLAN: I do. 7 MR. JULIAN FALCONER: And it's fair to 8 say that even though you create a mandatary requirement, 9 and I say you, and to be fair, I don't mean to improperly 10 use the colloquial. Even though the Office of the Chief 11 Coroner creates a mandatory requirement about attending 12 at all death scenes where the apparent means of death is 13 homicide or suicide, or the deceased is a child less than 14 twelve (12), there's an or: 15 "Where unable to attend at these scenes 16 should call the regional supervisor and 17 coroner and review the circumstances of 18 death prior to the body being released 19 from the scene. Investigative coroners 20 should attend at accidental death 21 scenes when police at the scene 22 specifically request assistance, or 23 when unable to attend at these scenes 24 should call the regional supervising 25 coroner and review the circumstance."
1451 Et cetera. 2 DR. BARRY MCLELLAN: Correct. 3 MR. JULIAN FALCONER: It's -- it's fair 4 to say that, in essence -- under the criteria of when the 5 time to travel to a death scene is more then sixty (60) 6 minutes, in essence, there are -- there is a lot of 7 flexibility for an investigating coroner not to attend 8 the scene. 9 Is that fair? 10 DR. BARRY MCLELLAN: Yes. 11 MR. JULIAN FALCONER: And you would agree 12 with me, and -- and knowing your tenure as Chief Coroner 13 -- and I'll say this for the record -- that I noticed you 14 agree with this, that there is no reason to distinguish 15 or discriminate in the services provided to First Nations 16 communities simply because they're First Nations. 17 Is that fair? 18 DR. BARRY MCLELLAN: Yes. 19 MR. JULIAN FALCONER: And you would agree 20 with me that a significant percentage -- in fact, through 21 the document notices we provided to you -- over 50 22 percent of the population of First Nation community 23 members actually live in remote communities. 24 You know that? 25 DR. BARRY MCLELLAN: I have no reason to
1461 dispute that. 2 MR. JULIAN FALCONER: And, so, to the 3 extent one is discussing the deliveries of services to 4 remote communities, one is often speaking about First 5 Nations communities, correct? 6 DR. BARRY MCLELLAN: Correct. 7 MR. JULIAN FALCONER: And you also know 8 that it's not a matter of choice. People didn't leave 9 cities to go be a place. 10 These are their homelands, is that fair? 11 DR. BARRY MCLELLAN: I -- I generally 12 agree with you. I can't say in a specific circumstance 13 someone didn't -- didn't leave a city and make a 14 conscious decision. But I generally agree with you, Mr. 15 Falconer. 16 MR. JULIAN FALCONER: In your tenure as 17 Chief Coroner -- as Chief Coroner -- first Acting Chief 18 Coroner, 2002 to 2004, and then from 2004 to 2000 -- I 19 believe -- and seven (7) -- in your tenure as Chief 20 Coroner, you were required, as part of your job duties, 21 to become sensitive to the First Nations issues that -- 22 that cropped up on a regular basis during your work. 23 Is that fair? 24 DR. BARRY MCLELLAN: Yes. 25 MR. JULIAN FALCONER: And you, as
1471 Regional Supervising Coroner for the Northeast Region, 2 were also called upon to be sensitive to First Nations 3 issues. In fact, Kashechewan would have been one of the 4 areas under your jurisdiction, fair? 5 DR. BARRY MCLELLAN: It was at that time, 6 yes. 7 MR. JULIAN FALCONER: And so you became 8 familiar with the reality that, for many, these are their 9 homes. These are the homes they inherited from their 10 ancestry. 11 This is their legacy, is that fair? 12 DR. BARRY MCLELLAN: Yes. 13 MR. JULIAN FALCONER: And, so, delivery 14 of services to them isn't about them getting a privilege; 15 it's about whether they, for example, in the case of the 16 death of one of their children, get the same level of 17 investigation as someone in an urban area. 18 That's the real issue, isn't it? 19 DR. BARRY MCLELLAN: Not sure I -- I 20 fully understand your question. If you could repeat it. 21 MR. JULIAN FALCONER: It was an awkwardly 22 phrased question so I just withdraw it. I'll start over. 23 I apologize. 24 When we look at this issue about access to 25 services for these people, it's about trying to level the
1481 playing field, isn't it? 2 DR. BARRY MCLELLAN: We try and provide 3 the best service we can throughout the Province with the 4 resources we have available. 5 MR. JULIAN FALCONER: And that issue of 6 availability of resources; you addressed it in your 7 examination-in-chief. You answered some questions from 8 the Commissioner about this. 9 You spoke about potentially an additional 10 twenty-five (25) to fifty (50) investigating coroners, 11 correct? 12 DR. BARRY MCLELLAN: I believe I said 13 twenty-five (25) to fifty (50), but it was in that range, 14 correct. 15 MR. JULIAN FALCONER: That's what I said. 16 And -- and -- twenty-five (25) to fifty (50). And you 17 identified an issue, though, and I want to track it and 18 understand it. 19 You said that investigating coroners being 20 doctors, being medical practitioners, there's a reality 21 which is simply providing medical services, generally, in 22 remote communities is a big challenge, correct? 23 DR. BARRY MCLELLAN: Correct. 24 MR. JULIAN FALCONER: Correspondingly, 25 the doctor that's in that remote community is likely to
1491 be overworked, overtaxed -- yes? 2 DR. BARRY MCLELLAN: In many 3 circumstances, yes. 4 MR. JULIAN FALCONER: And, so, the 5 additional coroner's duties are a particularly heavy 6 burden for doctors in those circumstances. 7 DR. BARRY MCLELLAN: They can be, yes. 8 MR. JULIAN FALCONER: Hence, it's not 9 surprising to you that in some cases -- many cases -- 10 coroners are simply not able to make the trips to 11 communities you would prefer they made, fair? 12 DR. BARRY MCLELLAN: Yes. 13 MR. JULIAN FALCONER: And -- and I want 14 to draw a very bright line for a moment as I address this 15 -- a very bright line -- because Mr. Commissioner 16 indicated in his opening remarks that on October 29th and 17 October 30th, he visited the communities of 18 Mishkeegogamang and the community of Muskrat Dam. 19 And I'm not referring to those visits, all 20 right? I'm not referring to those visits; however, I, in 21 my capacity as counsel, on October 3rd, along with my co- 22 counsel, Ms. Murray, as part of our job, attended those 23 communities. 24 And, in the context of our attendance on 25 October 3rd and 4th, certain questions were asked. And I
1501 want to ask you -- you can treat it as a hypothetical, 2 but I -- but I want to ask you if you're particularly 3 surprised by this. 4 For example, the leadership in 5 Mishkeegogamang had never heard of a coroner, had never 6 met a coroner. 7 COMMISSIONER STEPHEN GOUDGE: You're 8 going to get yourself in the position of giving evidence 9 in about two (2) seconds, Mr. Falconer. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 MR. JULIAN FALCONER: No, I said a 13 hypothetical -- I said a hypothetical, and you can reject 14 it. In other words, I'm not asking you to say that it's 15 true they said it, but would that come as a surprise to 16 you? 17 DR. BARRY MCLELLAN: Well, it -- it comes 18 as a surprise to me. There are very small communities in 19 the Province where there may be very rare deaths, and it 20 may very well be that members of those communities are 21 unaware of coroners. 22 In a -- in a community as large as -- I 23 believe, in your hypothetical, you said three hundred -- 24 I am surprised that members of the community were unaware 25 of a coroner but should that, based on your hypothetical,
1511 never happen, you know, I could see how it could happen, 2 but it still surprises me. 3 In -- in terms of the community of 4 Mishkeegogamang at Tab 17 of your Volume 3 binder and you 5 don't need to turn it up; I'll simply delivery one (1) or 6 two (2) of the statistics that are particularly 7 startling, and I suspect as Chief Coroner you would be, 8 somewhat, aware of them. 9 In the community of Mishkeegogamang and 10 you'll -- as I said we're talking about Tab 17 of Binder 11 3, Mr. Commissioner. 12 In that community -- whereas the death 13 rate nationally for the country, death due to accidents 14 is 6 percent -- in that community, death due to accidents 15 is 52 percent. 16 That's quite a startling difference would 17 you agree, Dr. McLellan? 18 DR. BARRY MCLELLAN: I do. I'm not sure 19 what particular page you're looking at if you wish to 20 draw my attention to a table. I guess my question is I'm 21 not sure whether or not that's as a -- as a proportion of 22 a total or -- or -- I'm not sure how to interpret the 23 figure you've given me. 24 MR. JULIAN FALCONER: Certainly. If you 25 go to -- in the document if you -- if you -- if I could
1521 direct your attention, please, to page 8? And this is a 2 report -- an assessment report -- on the health of the 3 Mishkeegogamang Ojibwa Nation. 4 At page 8, I read this passage to you -- 5 second paragraph under the subtitle "Population". 6 "A high proportion of the population is 7 under the age of twenty (20) and 8 relatively few are over the age of 9 forty-five (45). This picture which is 10 very different from mainstream Canadian 11 communities reflects the high death 12 rate of adults in Mishkeegogamang and a 13 birth rate that is approximately double 14 the Canadian average rate." 15 Quote: 16 "The people of Mishkeegogamang die at a 17 much younger age than does the general 18 population of Canada reflecting the 19 large number of alcohol-related deaths 20 and the large number of accidental 21 deaths. The number of young men dying 22 is very high." Close quotes. 23 "Between 1982 and 2001, 52 percent of 24 the deaths in Mishkeegogamang were 25 accidental as compared with 6 percent
1531 in the general Canadian population." 2 You'd agree with me that that's a 3 startling difference? 4 DR. BARRY MCLELLAN: Yes. 5 MR. JULIAN FALCONER: And just to canvas, 6 briefly, the significance of death by accident; it's fair 7 to say that it's to be contrasted for -- from, for 8 example, death by natural causes in that according to 9 your definitions used in the Offices of the Chief 10 Coroner, it's a death that happens in one form or another 11 by misadventure, fair? 12 DR. BARRY MCLELLAN: Yes. 13 MR. JULIAN FALCONER: And you use a death 14 for which there would be a lack of foresight or lack of 15 expectation? These are the words you used, correct? 16 DR. BARRY MCLELLAN: Yes. 17 MR. JULIAN FALCONER: And in the 18 situation of someone's life being cut off due to an 19 unforeseen incident, you'd agree with me that the risk 20 increases; that that death might actually be a criminally 21 suspicious death or a homicide? The risk increases 22 versus a death by natural causes; is that fair? 23 DR. BARRY MCLELLAN: I think that's fair. 24 MR. JULIAN FALCONER: And so we pay 25 particular attention to deaths by accident because we
1541 want to be assured, as your institutional report says, 2 that no death goes overlooked, ignored, or concealed, 3 correct? 4 DR. BARRY MCLELLAN: Correct. 5 MR. JULIAN FALCONER: Would you agree 6 with me and -- and this is in -- and -- and I'm simply 7 drawing from your institutional report; that to the 8 extent a Coroner -- a Supervising Coroner -- is going to 9 visit with a First Nations community that it's important, 10 and you learned this yourself, that -- that coroner, to 11 some extent, introduced himself to the leadership of the 12 community; is that true? 13 DR. BARRY MCLELLAN: I agree. 14 MR. JULIAN FALCONER: That's -- that's 15 part of the protocol, fair? 16 DR. BARRY MCLELLAN: I can't say it's a 17 protocol. I think that that would be a reasonable 18 expectation on the part of a Regional Supervising 19 Coroner. 20 MR. JULIAN FALCONER: And it's 21 particularly important in circumstances of a remote 22 community where the leadership of that community is 23 truly, truly the centre and hub of what goes on that 24 small community, fair? 25 DR. BARRY MCLELLAN: It would be
1551 important to do so in such a community, yes. 2 MR. JULIAN FALCONER: And First Nations 3 communities refer to their elected leaderships as "Band 4 Councils". 5 Is that right? 6 DR. BARRY MCLELLAN: Yes. 7 MR. JULIAN FALCONER: Now, in the 8 hypothetical I put to you before over a thirteen (13) 9 year period, three (3) years of current Chief Connie -- 10 Chief Connie McVeigh (phonetic), and before that, Chief 11 Donald Roundhead (phonetic), thirteen (13) years no one 12 met a coroner. 13 DR. BARRY MCLELLAN: And -- and this is a 14 hypothetical that you're -- 15 MR. JULIAN FALCONER: Yes, yes. 16 DR. BARRY MCLELLAN: Right. So, what -- 17 what is the question arising from the hypothetical? 18 MR. JULIAN FALCONER: My question to you 19 was, given the accidental death rates you see here, if 20 that hypothetical is accurate would you agree with this, 21 that something has gone awfully wrong? 22 DR. BARRY MCLELLAN: Well, I would hope 23 that there had been attempts at communication, either 24 from a coroner regional supervising coroner or someone 25 else in the -- in the office. I, based on your
1561 hypothetical, wouldn't know, you know, what sort of 2 attempts were made or -- or were not, but I do know from 3 my own experience, having attempted to communicate with 4 leaders in the First Nation Community, that is has been 5 difficult. 6 That's not meant to be defensive in 7 respect to your hypothetical -- 8 MR. JULIAN FALCONER: Mm-hm. 9 DR. BARRY MCLELLAN: -- but it sounds 10 like somewhere communication has broken down. 11 MR. JULIAN FALCONER: Now, Muskrat Dam 12 doesn't necessarily suffer from the level of destitution 13 at all that Mishkeegogamang does; it's another community 14 that my co-counsel and I visited in early October. All 15 right. The same hypothetical; never met a coroner, whole 16 Band and Council. 17 Now, is it possible -- is it possible that 18 in these remote communities where, for example, in the 19 case of Mishkeegogamang, you fly to Pickle Lake for 20 Thunder -- from Thunder Bay for an hour and then you 21 drive for forty-five (45) minutes into Mishkeegogamang, 22 or in the case Muskrat Dam, where it's a pure fly-in 23 community, is it possible that in essence investigating 24 coroners are exercising their powers through local police 25 officers?
1571 DR. BARRY MCLELLAN: Is it possible, in a 2 hypothetical such as that, that police officers are 3 attending at those death scenes, as opposed to coroners 4 travelling that distance. 5 MR. JULIAN FALCONER: Yes. 6 DR. BARRY MCLELLAN: Yes. 7 MR. JULIAN FALCONER: Is it possible that 8 all communications over death investigations are 9 happening through police officers? 10 COMMISSIONER STEPHEN GOUDGE: Are you 11 dealing now with a hypothetical or -- 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 MR. JULIAN FALCONER: Yes. 15 DR. BARRY MCLELLAN: Is it possible in 16 your hypothetical? 17 MR. JULIAN FALCONER: Yes. 18 DR. BARRY MCLELLAN: Yes. 19 MR. JULIAN FALCONER: Is it fair to say 20 that you, during your time as Chief Coroner, had not 21 developed, nor do you know of today a tracking system for 22 determining to what extent regional supervising coroners 23 actually attend at remote communities? 24 There's no way of actually knowing that, 25 is there?
1581 DR. BARRY MCLELLAN: Tracking, as in are 2 there computerised records of that, no. 3 MR. JULIAN FALCONER: Quality assurance? 4 DR. BARRY MCLELLAN: Well, in order to 5 track that, were I Chief Coroner, I would actually speak 6 directly to the regional supervising coroners; it's not a 7 large group and I suspect I could obtain answers to the 8 questions. Is it tracked on a prospective basis? No. 9 MR. JULIAN FALCONER: And if it were -- 10 COMMISSIONER STEPHEN GOUDGE: Did you 11 track visits to scenes generally, as opposed to use of 12 surrogates, police officers? 13 DR. BARRY MCLELLAN: Yes, we have started 14 to that as part of our new quality assurance and audit 15 process. 16 COMMISSIONER STEPHEN GOUDGE: 17 Starting...? 18 DR. BARRY MCLELLAN: Well, it was 19 formally started earlier this year, but the regional 20 coroners have done audits of particular coroners looking 21 at attendance at death scenes going back now for three 22 (3) years. And the information may come from the 23 coroner's investigation statement, it may come from the 24 police report -- 25 COMMISSIONER STEPHEN GOUDGE: -- right.
1591 DR. BARRY MCLELLAN: -- it may come from 2 both, but we've had to make sure that in -- in doing such 3 audits that we would have the information available. 4 COMMISSIONER STEPHEN GOUDGE: All right. 5 DR. BARRY MCLELLAN: So it has been done, 6 but my understanding, Commissioner, is it's been done a 7 coroner basis, not on a community basis. 8 COMMISSIONER STEPHEN GOUDGE: And how 9 were the coroners who were audited selected? 10 DR. BARRY MCLELLAN: The were usually 11 selected because there some concern expressed from the 12 community about an individual coroner or coroners with 13 respect to scene attendants. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. BARRY MCLELLAN: Now we're actually 16 dealing with this prospectively and not waiting for there 17 to be an issue or concern raised, but that's new. 18 COMMISSIONER STEPHEN GOUDGE: Thank you. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 MR. JULIAN FALCONER: And may I address 22 that briefly, that -- that last answer you gave? You'd 23 agree with me that a community such as Mishkeegogamang, 24 where destitution is a reality, they're probably one of 25 the more vulnerable communities in this Province?
1601 Is that fair? 2 DR. BARRY MCLELLAN: Yes, I mean I think 3 it's fair to say that the more vulnerable communities are 4 those that are particularly rural and remote, and that -- 5 whether it's a hypothetical or this specific example, 6 yes, I would agree. 7 MR. JULIAN FALCONER: And when one is 8 dealing -- as an institutional head, such as yourself -- 9 is dealing with a vulnerable community, you appreciate 10 that they may be in the weakest position to assert their 11 rights or register complaints. 12 You'd agree with that. 13 DR. BARRY MCLELLAN: I can see how 14 potentially they could be in that position. I wouldn't 15 say that all such -- 16 MR. JULIAN FALCONER: No, fair. 17 DR. BARRY MCLELLAN: -- communities would 18 be. It would depend upon other methods of advocacy. 19 MR. JULIAN FALCONER: It's not an 20 absolute rule. 21 And in being in one of the weaker 22 positions; for example, they're education as to the 23 access to services may be almost non-existent, fair? 24 DR. BARRY MCLELLAN: It could be, yes. 25 MR. JULIAN FALCONER: And, in those
1611 circumstances, they might not even necessarily know 2 enough to express a concern about a coroner not coming in 3 because they don't know about a corner and what a 4 coroner's duties are. 5 That's -- that's a challenge, isn't it? 6 DR. BARRY MCLELLAN: I could see that as 7 possible, yes. 8 MR. JULIAN FALCONER: If you could turn 9 now to the Institutional Report that's Document Number 10 160003, and in particular page 1. And it's the -- when I 11 say "page 1", I'm talking about the text after the table 12 of contents under "Office of the Chief Coroner for 13 Ontario". 14 Under the subtitle "Mandate", it says: 15 "The Office of the Chief Coroner of 16 Ontario serves the living through high 17 quality death investigations and 18 inquests to ensure that no death will 19 be overlooked, concealed or ignored." 20 Correct? 21 DR. BARRY MCLELLAN: Correct. 22 MR. JULIAN FALCONER: Would you agree the 23 corollary would -- would have to be true that the absence 24 of a high quality death investigation creates a risk that 25 deaths could be overlooked, ignored or concealed?
1621 Would you agree -- 2 DR. BARRY MCLELLAN: Yes. 3 MR. JULIAN FALCONER: -- with that? 4 You also, in the Institutional Report, 5 speak to the issue that findings from these high quality 6 death investigations are used to generate recommendations 7 to help improve public safety and prevent deaths in 8 similar circumstances. True? 9 DR. BARRY MCLELLAN: Correct. 10 MR. JULIAN FALCONER: You'd agree that 11 when we speak of the public, in terms of public safety, 12 it's an inclusive term, and it -- and it's certainly not 13 intended to exclude First Nations, correct? 14 DR. BARRY MCLELLAN: Correct. 15 MR. JULIAN FALCONER: They should 16 consider themselves part of the public whose safety you 17 are charged with improving, correct? 18 DR. BARRY MCLELLAN: Correct. 19 MR. JULIAN FALCONER: Again, similar to 20 my last question: If there is a pronounced lack of 21 access to high quality death investigations, then the 22 prospects of recommendations aimed at improving safety 23 for First Nations would be significantly diminished, 24 wouldn't it? 25 DR. BARRY MCLELLAN: It could be, yes.
1631 MR. JULIAN FALCONER: I just -- looking 2 for a moment at the -- at the last line, "preventing 3 deaths". If the prospects for improving safety for First 4 Nations were diminished, I take it you and I can agree 5 that there would be a significant risk that, due to that 6 diminished prospect of safety, that preventable deaths 7 could happen again. 8 Can we agree? 9 DR. BARRY MCLELLAN: There could be such 10 a risk, yes. 11 MR. JULIAN FALCONER: Ultimately 12 discharging the duties as an investigating coroner in 13 ensuring high quality death investigations can actually 14 be about saving lives. 15 Isn't that right? 16 DR. BARRY MCLELLAN: Yes. 17 MR. JULIAN FALCONER: And in a community 18 with a 52 percent accident rate, you'd agree with me that 19 that would be a community you would want to pay very 20 close attention to in terms of preventable deaths, 21 correct? 22 DR. BARRY MCLELLAN: We would be paying 23 attention to each and every death where we had 24 information with the ultimate goal of learning from that 25 death investigation and preventing deaths in future, be
1641 it in that community or broader throughout the entire 2 Province. 3 4 (BRIEF PAUSE) 5 6 MR. JULIAN FALCONER: In circumstances of 7 a delegation of a coroner's powers to a police officer, 8 one of the effects of that is instead of an investigating 9 coroner with a medical practitioner's degree, you have a 10 police officer without medical training, correct? 11 DR. BARRY MCLELLAN: At the scene, 12 correct. 13 MR. JULIAN FALCONER: And can you assist 14 me with that? Isn't that a very significant 15 disadvantage, potentially undermining the death 16 investigation? 17 DR. BARRY MCLELLAN: Well it -- it can be 18 a disadvantage. Obviously, it depends upon the 19 individuals involved. Having dealt with this 20 circumstance myself, one tries to spend as much time as 21 possible communicating with the individual. 22 There are other options available 23 including digital photography and images, but I would say 24 that there is no substitute for being at the scene 25 oneself.
1651 COMMISSIONER STEPHEN GOUDGE: Do you 2 know, Dr. McLellan, if police officers get any training 3 in site attendance in place of the coroner? Do you know 4 that or -- there's no reason you should, but... 5 DR. BARRY MCLELLAN: I wouldn't say, 6 specifically, in place of, Commissioner, but we do a 7 significant amount of training with police officers as 8 one (1) member of the Death Investigation Team. 9 And that includes our expectations at 10 scenes and the importance of observations at scenes. But 11 it's not -- 12 COMMISSIONER STEPHEN GOUDGE: Where they 13 are surrogates for the investigating coroner? 14 DR. BARRY MCLELLAN: I'm not aware of it 15 being done under those specific circumstances. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. BARRY MCLELLAN: It's done under more 18 general circumstances. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 MR. JULIAN FALCONER: And -- I'm sorry, 21 Mr. Commissioner. 22 COMMISSIONER STEPHEN GOUDGE: That's 23 okay, thank you. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1661 MR. JULIAN FALCONER: What method has 2 existed over the last five (5) years, for example, Dr. 3 McLellan, to -- I'm sorry, you're reading, so -- 4 DR. BARRY MCLELLAN: No, no, that's fine. 5 MR. JULIAN FALCONER: -- please take your 6 time, it's okay. 7 DR. BARRY MCLELLAN: That's fine. 8 MR. JULIAN FALCONER: All right. What -- 9 what method, over the last five (5) years, do you know of 10 that the office of the Chief Coroner has for determining 11 the number of times that an investigating coroner has 12 used a police officer as a surrogate in remote 13 communities? Is there a way of knowing that? 14 DR. BARRY MCLELLAN: I don't believe that 15 there is any computerized mechanism to do so. 16 MR. JULIAN FALCONER: All right. And I 17 want to be clear, I -- I would agree with you that that 18 would be the logical way to track, but I don't 19 necessarily restrict my question to computerized 20 tracking; any kind of formal, reliable auditing 21 technique. Is there one? 22 DR. BARRY MCLELLAN: Formal and reliable, 23 not necessarily. However, to go back to -- to what we've 24 covered up to this point in time, most of these 25 circumstances that you've described are in Northwest
1671 Ontario and Northeast Ontario. 2 The regional coroners in those two (2) 3 regions frequently are communicating with their coroners, 4 and have a chance to deal with -- I guess concerns, 5 issues, that may be specific to a coroner or particular 6 to a part of the province. 7 So under such circumstances, I can't say 8 that regional coroners aren't, as part of ongoing 9 education dialogue communication, probing such issues. 10 But if it was being done, it's being done at a regional 11 level, not at a head office level. 12 MR. JULIAN FALCONER: And -- and 13 meaning no disrespect or criticism of that kind of 14 communication, it is a form of ad hoc auditing, isn't it? 15 DR. BARRY MCLELLAN: Yes. 16 MR. JULIAN FALCONER: Now, in terms of 17 the actions of a police officer where the investigating 18 coroner doesn't come into the community, is there some 19 kind of written delegation? Is there some kind of 20 notification to the officer? Is there something formal 21 that happens? 22 DR. BARRY MCLELLAN: Uh -- 23 MR. JULIAN FALCONER: Because there's 24 formal paper for other forms of coroner's directions, 25 that's why I ask.
1681 DR. BARRY MCLELLAN: There's no specific 2 warrant or form for that purpose. 3 MR. JULIAN FALCONER: Mm-hm. 4 DR. BARRY MCLELLAN: The coroner would 5 document on their coroner's investigation statement. The 6 police officer would document in his or her record, but 7 there's no specific form that's used for that delegation. 8 MR. JULIAN FALCONER: And I take it then, 9 it follows that there's no actual statement as to which 10 of the powers under section 16(5) of the Coroner's Act 11 are being delegated at the time? 12 There's no formal requirement for that? 13 DR. BARRY MCLELLAN: There's no formal 14 requirement, no. 15 COMMISSIONER STEPHEN GOUDGE: Do you have 16 guidelines, Dr. McLellan, about what the surrogate should 17 do in scene attendance? 18 DR. BARRY MCLELLAN: No specific 19 guidelines for the police officer. 20 COMMISSIONER STEPHEN GOUDGE: Would that 21 be useful? 22 DR. BARRY MCLELLAN: I think, actually, 23 it would. And I think that -- 24 COMMISSIONER STEPHEN GOUDGE: I assume it 25 would involve things like photographs and the kinds of
1691 things that both you and Dr. Pollanen have discussed 2 before? 3 DR. BARRY MCLELLAN: It would include a 4 lot of the information that we provide in our guidelines 5 around expectations of a coroner at a death scene. 6 COMMISSIONER STEPHEN GOUDGE: Right, and 7 perhaps more in the sense of things that could be made a 8 permanent record like digital photographs? 9 DR. BARRY MCLELLAN: And it would, 10 actually potentially, include the early transmission of 11 such images -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. BARRY MCLELLAN: -- so that in 14 certain circumstances they could be viewed before a body 15 was moved from a scene. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 MR. JULIAN FALCONER: And I wonder, Dr. 20 McLellan, there's another aspect to the work, isn't 21 there? It's not just technical, it's not just scene 22 evidence gathered. There's a whole piece of the puzzle 23 here that relates to communications with the family. 24 Isn't that right? 25 DR. BARRY MCLELLAN: Yes, communication
1701 with the family around the circumstances of death are 2 very important. 3 MR. JULIAN FALCONER: Parents 4 hypothetically lose a nine (9) month old, and in the 5 context of losing the nine (9) month old it becomes 6 absolutely imperative, doesn't it, that there be some 7 contact, communication, between the coroner's office and 8 the family about what's happened to their child's body 9 and ultimately what the cause of death was that was 10 determined? 11 That would be crucial, wouldn't it? 12 DR. BARRY MCLELLAN: Yes, we would have 13 an expectation that there would be communication; whether 14 or not it would directly through the -- fro -- from the 15 coroner to the family member would depend on the 16 individual circumstance. 17 MR. JULIAN FALCONER: It would be a rare 18 circumstance that the coroner -- the regional supervising 19 coroner wouldn't at least ensure there was telephone 20 communication between the grieving mother and the 21 coroner's office, that would be rare. 22 DR. BARRY MCLELLAN: That would not 23 usually be monitored at the level of the regional 24 supervising coroner. The coroner is the one who would 25 maintain responsibility for communication. Again, that
1711 communication could take place through a number of 2 different routes. 3 I know from speaking to Dr. Legge about 4 this in the past, the Regional Supervising Coroner 5 Northwest Ontario, that he has used leaders in some of 6 the First Nation's communities to communicate with family 7 members. So I'm just saying that it may not be directly 8 from the coroner to the family member, but it's very 9 important that we try to communicate with families around 10 each and every death. 11 MR. JULIAN FALCONER: Did Dr. Legge 12 mention to you using leaders in Muskrat Dam or using 13 leaders in Mishkeegogamang? 14 DR. BARRY MCLELLAN: Not that I ever 15 recall. 16 MR. JULIAN FALCONER: Did he mention 17 using leaders in Deer Lake, another First Nation's 18 community? 19 DR. BARRY MCLELLAN: He -- he may where - 20 - very well have mentioned the community at the time. I 21 have no recollection -- 22 MR. JULIAN FALCONER: Very well. 23 DR. BARRY MCLELLAN: -- of the specific 24 communities. 25 MR. JULIAN FALCONER: In -- to -- to
1721 somewhat break this down, it's fair to say that that 2 communication with family, as you put it, can be through 3 a number of routes ultimately leading to the conclusion, 4 based on what you've said, that it wouldn't take 5 necessarily a medical practitioner to speak to the 6 family. True? 7 DR. BARRY MCLELLAN: True. Optimally it 8 would, but not out of necessity. 9 MR. JULIAN FALCONER: Right. Doctors 10 represent an overtaxed resource in remote communities. 11 It's very to difficult to a doctor into a remote 12 community, much less a doctor as a coroner. 13 What level of thought has been given to 14 the reality that, if the doctors are just using 15 surrogates anyway, why don't investigating coroners 16 expand beyond medical practitioners since they can't do 17 the job anyway? 18 DR. BARRY MCLELLAN: So, if I understand 19 your question correctly, why do we not look at a model 20 where coroners are not required to be physicians and look 21 at alternatives? 22 MR. JULIAN FALCONER: You have 23 investigating coroners who can't deliver, for all the 24 reasons you've indicated, and the stress on the medical 25 community doesn't look like it's going to be relieved
1731 soon, correct? 2 DR. BARRY MCLELLAN: I think that's fair. 3 MR. JULIAN FALCONER: And with that 4 stress comes the reality that investigating coroners in 5 the remote communities are going to continue to be taxed 6 and have the limitations they've been facing for years, 7 correct? 8 DR. BARRY MCLELLAN: Correct. 9 MR. JULIAN FALCONER: And the person that 10 gets delegated, the surrogate, so far is either a police 11 officer or someone else, correct? 12 DR. BARRY MCLELLAN: Correct. 13 MR. JULIAN FALCONER: A non-medical 14 practitioner? 15 DR. BARRY MCLELLAN: Correct. 16 MR. JULIAN FALCONER: And the person 17 potentially having communications with the family doesn't 18 have to be a medical practitioner, correct? 19 DR. BARRY MCLELLAN: Correct. 20 MR. JULIAN FALCONER: Isn't there a -- an 21 alternative that presents itself, which is to start 22 thinking about creating investigative coroners, 23 consistent with what other provinces have done, so that 24 you actually do reach these communities, even if it's not 25 through a doctor?
1741 Isn't -- isn't that something we should 2 give some thought to? 3 COMMISSIONER STEPHEN GOUDGE: You mean 4 non-medical? 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 MR. JULIAN FALCONER: That's right. 8 Well, we're doing it anyway. 9 DR. BARRY MCLELLAN: It's certainly a 10 very significant change to the -- to the coroner's 11 system. Just in your line of questioning here this 12 afternoon, we've talked about other mechanisms that are 13 used; police officers. I've addressed the fact that, you 14 know, council members, you know, leaders within the 15 community may be used. 16 We've talked about a method to perhaps 17 provide better education and direction to police 18 officers. Perhaps that could include communication with 19 the family at the conclusion of an investigation. 20 So I'm not ready today to suggest that 21 your proposed mechanism is better than others but I think 22 we need to look at a number of alternative ways to 23 improve communication with First Nations and all remote 24 communities. 25 MR. JULIAN FALCONER: But it's not just
1751 communication is it, because we create the impression 2 through a statute that we have investigative coroners 3 responsible for investigating deaths and creating high- 4 quality death investigation services. 5 That's the impression we create as a 6 society, correct? 7 DR. BARRY MCLELLAN: That is the system 8 that we are trying to, well, maintain, yes. 9 MR. JULIAN FALCONER: And I say "we." 10 DR. BARRY MCLELLAN: Yeah. 11 MR. JULIAN FALCONER: We're all 12 responsible for it. And in creating that impression we 13 can't actually deliver for some communities. We can't do 14 it. 15 DR. BARRY MCLELLAN: Well, you're -- 16 you're making the assumption that we don't have high- 17 quality death investigations in these circumstances. 18 Now, we've talked about issues with communication and 19 that's one (1) measurement of a high-quality death 20 investigation. 21 MR. JULIAN FALCONER: Yes. 22 DR. BARRY MCLELLAN: But I have worked 23 with police officers on a number of these death 24 investigations and feel that they have done an excellent 25 job at the scene. I know in those same cases because
1761 I've been involved with the communication myself, the 2 communication has gone back to the family. 3 So I don't think it's fair to make the 4 assumption that in all of these circumstances where a 5 coroner is not present at the death scene that the 6 investigation is not one of high quality. 7 MR. JULIAN FALCONER: I see your point. 8 And ultimately your point is you don't have to be a 9 medical practitioner to conduct a high-quality death 10 investigation. 11 Isn't that right? 12 DR. BARRY MCLELLAN: Well, in fact the 13 death investigation is still legislatively under the 14 coroner in the circumstances we've been talking about. 15 MR. JULIAN FALCONER: In the end over 16 many, many years, ten (10) to fifteen (15) years, pre- 17 dating your tenure as Regional Supervising Coroner, 18 Deputy Chief Coroner, Chief Coroner, over the years it 19 has been a pronounced absence of funding that is at the 20 source of this issue, correct? 21 DR. BARRY MCLELLAN: No, I don't agree 22 that this is -- is all a funding issue. If there was 23 more money available right now in many of these remote 24 communities we still would not have enough coroners to 25 provide on-scene attendance.
1771 MR. JULIAN FALCONER: All right. To use 2 an example that is definitely going to be putting me on 3 thin ice with the Commissioner, to use an example the 4 Chief Justice faces a problem with the court system in 5 terms of ability for prosecutions to move within a 6 reasonable time; we're talking historically, different 7 times. In a statement opening the courts the Chief 8 Justice might actually say we are getting close to a 9 crisis in terms of our ability to process trials within a 10 reasonable time. The systemic issues are such that we 11 are getting close to a crisis point. 12 Can you point to where the Office of the 13 Chief Coroner -- you as Chief Coroner or your predecessor 14 -- ever sounded the alarm for lack of access for services 15 for remote communities when it comes to the deployment of 16 investigating coroners? 17 Is there any point in time that you can 18 think of where this was raised directly with government? 19 DR. BARRY MCLELLAN: Raised as an 20 alarming issue -- 21 MR. JULIAN FALCONER: Yes. 22 DR. BARRY MCLELLAN: -- and a great 23 concern? No, it's something we have discussed frequently 24 as a team. It's information that in the past I have 25 shared with those who have been responsible for
1781 supervising the office. But as far as to use your words 2 I believe "raise the alarm -- alarm bell," that has not 3 been done. It's been known throughout the Province for 4 many years in our system that it just is not possible to 5 have on-scene attendance of coroners in many parts of the 6 Province. 7 So it goes back to the issue of what is 8 the highest quality death investigation that can be done 9 in these remote communities? And in our system we've 10 taken many steps to try to have the highest quality of 11 death investigation, through having police officers and 12 on occasion medical practitioners attending in the 13 absence of a coroner, and then we've talked about a 14 number of the other steps we have tried to take to ensure 15 best communication. 16 COMMISSIONER STEPHEN GOUDGE: You have 17 five (5) minutes, Mr. Falconer. 18 MR. FALCONER: Thank you. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 MR. JULIAN FALCONER: And -- and may I 22 ask you this: Would you agree that, based on the 23 experience you had as Chief Coroner and -- and as 24 Supervising Coroner for Northeast, that you respect the 25 fact that many, many of the issues -- the fundamental
1791 root issues -- to be dealt with with First Nations are 2 expected to be dealt with on a Nation-to-Nation basis; 3 that is, there is a notion of First Nations as a 4 government to be negotiated with, whether it's protocols 5 for death investigations or other government imperatives; 6 you're expected, as an institutional head, to deal with 7 First Nations on a Nation-to-Nation basis? 8 Is that fair? 9 DR. BARRY MCLELLAN: I -- I don't think I 10 can advance this Inquiry by answering that question. I 11 don't think I have sufficient knowledge base, unless I 12 misunderstood your question, to talk about some of the 13 governmental and other issues that are dealing with the 14 larger picture of First Nations issues. 15 MR. JULIAN FALCONER: Well, the reason I 16 ask you that is because when we speak about alternatives 17 to medical practitioners who can't get there, presumably 18 one (1) of the alternatives is to sit down with First 19 Nations leaders, First Nations communities, and start 20 empowering them to create their own death investigation 21 services. 22 Isn't that one (1) of the realities that 23 we have to look at? 24 DR. BARRY MCLELLAN: I'm not -- I'm not 25 clear that it -- that it is. And when we're looking at
1801 the picture here, we're looking at remote communities in 2 general; not focussing on specific remote communities. 3 MR. JULIAN FALCONER: Well, you'll forgive 4 me, but based on Nishnawbe-Aski Nation and Aboriginal 5 Legal Services, I'm looking at First Nations remote 6 communities. 7 DR. BARRY MCLELLAN: I appreciate -- 8 MR. JULIAN FALCONER: All right. 9 DR. BARRY MCLELLAN: I just think it's 10 important that any answer I give, is given a proper 11 context -- 12 MR. JULIAN FALCONER: No, that's fair. 13 DR. BARRY MCLELLAN: -- and it's clear 14 that we're focussing on the larger province and the 15 bigger system. 16 MR. JULIAN FALCONER: Fair enough. 17 DR. BARRY MCLELLAN: So, with that in 18 mind, we've taken many steps to try to conduct the 19 highest quality of death investigations for these remote 20 communities with the resources we have and mechanisms we 21 have in place. 22 Today, through a question the Commissioner 23 put to me, I've already heard of what might be one (1) 24 potential way of improving the quality of scene 25 investigation. I think that we should be working with
1811 all communities, and with anyone else who can add value 2 to the discussion to try to decide how we can best 3 provide death investigations in future. 4 MR. JULIAN FALCONER: But at the end of 5 the day, the current situation is unacceptable, isn't it? 6 DR. BARRY MCLELLAN: I don't know whether 7 I would agree that it's unacceptable. I would say that 8 we need to work to have the highest quality system in 9 future. 10 I think that based on the resources 11 available -- and here I'm talking about people who are 12 available in the communities -- that there are a lot of 13 very high quality death investigations taking place in 14 remote communities in the Province. 15 MR. JULIAN FALCONER: Just to close out, 16 because I -- I think my five (5) minutes are -- are just 17 about up. 18 In the end, the assurance you give about 19 your feeling about the quality of service, you and I can 20 agree, it's not based on any formal training of police 21 officers on how to accept delegated services? 22 We can agree on that. 23 DR. BARRY MCLELLAN: Correct. 24 MR. JULIAN FALCONER: We can agree that 25 your view is not based on any formal auditing system for
1821 the number of times the delegations happen, correct? 2 DR. BARRY MCLELLAN: Correct. 3 MR. JULIAN FALCONER: And it's not based 4 on any formal tracking system to determine how many times 5 and how often coroners are actually going to these 6 communities. 7 DR. BARRY MCLELLAN: Correct. 8 MR. JULIAN FALCONER: Thank you. Those 9 are my questions, Mr. Commissioner. 10 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 11 Falconer. 12 Ms. Fraser...? 13 14 CROSS-EXAMINATION BY MS. SUZAN FRASER: 15 MS. SUZAN FRASER: Thank you, Dr. 16 McLellan, Dr. Pollanen. I'm Suzan Fraser. We've met. 17 I have one (1) question that is troubling 18 me, and I'm trying to determine whether there is any 19 significant difference between a criminally suspicious 20 death and a suspicious death. And I'm -- the term 21 "criminally suspicious" has been used throughout these 22 proceedings, but I'm interested in both of your opinion 23 as to if there's a difference between criminally 24 suspicious and suspicious, starting with Dr. McLellan, I 25 suppose.
1831 DR. BARRY MCLELLAN: I -- I think, in 2 large part, the two (2) terms are used interchangeably. 3 We've talked about the importance of keeping an open mind 4 when approaching any death investigation if it, in 5 quotes, "is suspicious," I think that means that we're 6 thinking that that is potentially unnatural, and thinking 7 broadly that would include the possibility of it being 8 criminally suspicious. 9 And I think in many ways the terms are 10 used interchangably. 11 MS. SUZAN FRASER: All right. Now we've 12 also used, sometimes homicidal/criminally suspicious 13 cases. That's been used as a title in some of the 14 guidelines, and homicidal/criminally suspicious implies 15 some sort of thinking about the manner of death. 16 Would you agree? 17 DR. BARRY MCLELLAN: Yes. 18 MS. SUZAN FRASER: And, Dr. Pollanen, 19 your view as to whether there's any value added to the 20 use of the word criminally in terms of criminally 21 suspicious versus plain old suspicious? 22 DR. MICHAEL POLLANEN: Well, I think it - 23 - it comes from the fact that the police are involved. 24 These cases when they arrive to the morgue facilities are 25 attached to police investigations, and often higher
1841 levels of police investigation including homicide 2 detectives. 3 So the -- by virtue of police involvement 4 we -- we call them criminally suspicious. 5 MS. SUZAN FRASER: All right. And -- 6 DR. MICHAEL POLLANEN: Just -- just to 7 sort of give you a nuanced version of that. Sometimes we 8 get cases that are brought in as routine matters, and the 9 pathologist is the one who generates the suspicion. 10 MS. SUZAN FRASER: Yes? 11 DR. MICHAEL POLLANEN: Based upon the 12 autopsy findings. 13 MS. SUZAN FRASER: Yes, I see. All 14 right. Dr. McLellan, I have some questions for you. Dr. 15 Pollanen, you're off the hook for probably the balance of 16 it, but we'll just see how we do here. 17 Picking up on Mr. Falconer's point, Dr. 18 McLellan, in terms of the information that's given to a 19 family following the death of a child, and particularly a 20 young child, I take it that the office of the Chief 21 Coroner and coroners have no standard information that 22 they give to family members of the deceased upon the 23 sudden or unexpected death of a loved one? 24 There's no standard information pamphlet 25 about the death investigation process. Is that fair?
1851 DR. BARRY MCLELLAN: There actually is a 2 pamphlet through the office about the coroner's death 3 investigation -- 4 MS. SUZAN FRASER: Yes? 5 DR. BARRY MCLELLAN: -- that is given out 6 frequently to families. But as far as what communication 7 takes place around an individual case, the circumstances 8 are virtually always so different that it's not, to use 9 your term, standard communication. 10 MS. SUZAN FRASER: All right. So -- I'm 11 sorry, I didn't know about the existence of that; that 12 overlooked my notice. 13 But it's not mandated that coroners give 14 that pamphlet or that information sheet to family 15 members? 16 DR. BARRY MCLELLAN: It's not mandated, 17 but it's been circulated to coroners with a memo 18 encouraging that it be used and given to -- to families 19 whenever possible. 20 MS. SUZAN FRASER: I see. Thank you. In 21 terms of pediatric forensic pathology, the Office of the 22 Chief Coroner had -- has drawn a distinction between 23 those who are under five (5) and other children in youth. 24 Is that fair? 25 DR. BARRY MCLELLAN: Yes, as far as the
1861 standardized investigation, correct. 2 MS. SUZAN FRASER: And I understand that 3 to be because for those children who are five (5) and 4 under, there is -- the pathology is more complicated for 5 then children who are over five (5). 6 Is that fair? 7 DR. BARRY MCLELLAN: It's because the 8 death investigation itself is more complicated. 9 MS. SUZAN FRASER: All right. 10 DR. BARRY MCLELLAN: And that includes 11 the issue of -- of pathology. 12 MS. SUZAN FRASER: All right. But in the 13 common medical understanding of the word pediatrics, 14 pediatrics is medicine, as I understand it, for children 15 and youth; that would include infants, toddlers, and 16 young adolescents. 17 Is that fair? 18 DR. BARRY MCLELLAN: The term pediatric 19 can, in different situations, refer to different age 20 groups, correct. 21 MS. SUZAN FRASER: All right. And in 22 terms of The Paediatric Death Review Committee, what is 23 the age range -- age range for the deaths that that 24 committee reviews? 25 DR. BARRY MCLELLAN: There is no absolute
1871 cutoff. There have been deaths reviewed up to the ages 2 of eighteen (18), and there have in fact, in isolated 3 circumstances been some complicated deaths over the age 4 of eighteen (18) that have still been reviewed by that 5 committee. 6 MS. SUZAN FRASER: All right. So it -- 7 The Paediatric Death Review uses a more common -- is it 8 more common in terms of the word -- takes the common -- 9 never mind that questions at all. 10 But generally what we understand for 11 pediatrics being used in general medicine, if you go to a 12 pediatrician, that the committee would look at young 13 people who would be eighteen (18) and under. 14 Is that fair? 15 DR. BARRY MCLELLAN: This may be of 16 assistance. We have other review committees in the 17 office. One is the Patient Safety Review Committee. 18 And it may be that for a complex medical 19 manner that in -- in one (1) situation where it appears 20 that it's of more pediatric expertise, it may go to The 21 Paediatric Death Review Committee. And another it may 22 appear to be surrounding an issue that may potentially be 23 more systemic in a hospital environment, and in that case 24 it may go to The Patient Safety Committee, so it's up to 25 the regional coroner to use discretion as to where best
1881 to send the case for review. 2 MS. SUZAN FRASER: All right. And in 3 terms of your office, I take it that the office of the 4 Chief Coroner during your time did not have a youth 5 advisory committee or a young people advising either The 6 Paediatric Death Committee or your office. 7 DR. BARRY MCLELLAN: There has not been a 8 youth advisory committee, no. 9 MS. SUZAN FRASER: All right. And in 10 terms of the -- turning to the legislation, the deaths 11 that are to be reported, and in terms of children, we 12 understand that deaths must be reported where a child 13 dies in a child residence -- and if it's helpful, Dr. 14 McLellan, I can have the registrar pull up the 15 legislation. 16 Would that be helpful? 17 DR. BARRY MCLELLAN: Well, it may be 18 helpful for others; I have it right in front of me here. 19 MS. SUZAN FRASER: All right, that's -- 20 that's from the institutional report, Mr. Registrar, and 21 it's page 76. And if you could turn to the next page, 22 page 77. 23 DR. BARRY MCLELLAN: In my document it's 24 page 78, but -- 25 MS. SUZAN FRASER: And I think that's
1891 what it will end up being, Dr. McLellan. 2 DR. BARRY MCLELLAN: It's Section 10 3 you're probably looking for. 4 MS. SUZAN FRASER: Yeah. If you could go 5 to page 78, Registrar. My apologies. Page 79. Thank 6 you. 7 We have both where a child dies in 8 residence; and I take it that would include a group home? 9 DR. BARRY MCLELLAN: Yeah, so I -- on my 10 document here, it's on the bottom of page 78, we have 11 subsection 2(b), a children's residence under Part 9, 12 Licensing of the Child and Family Services Act or 13 premises. 14 MS. SUZAN FRASER: Yes. And that would 15 include a group home? 16 DR. BARRY MCLELLAN: Correct. 17 MS. SUZAN FRASER: All right. And we 18 also know that it would also include -- would it include 19 foster care? 20 DR. BARRY MCLELLAN: Depending upon where 21 the foster care is provided, yes. 22 MS. SUZAN FRASER: Yes, all right. And 23 in terms of children -- death involving children who are 24 outside of the care of their parents, they may be in the 25 custody of the state in a youth justice facility, and in
1901 those circumstances a death would -- an investigation 2 would be mandatory and in inquest would be mandatory. 3 DR. BARRY MCLELLAN: Correct. 4 MS. SUZAN FRASER: All right. And for 5 the children who are in the care of the Children's Aid 6 Societies or who have had contact or an open file with 7 the Children's Aid Society under the current mandate of 8 The Paediatric Death Review Committee, those deaths would 9 be reviewed by that committee. 10 Is that fair? 11 DR. BARRY MCLELLAN: Correct. 12 MS. SUZAN FRASER: All right. And are 13 you aware, Dr. McLellan, that in 2003 Defence for 14 Children International produced a report, and that's at 15 Tab 20 of Volume III, and for counsel, that was produced 16 separately in PDFs from our office on Monday. 17 Do you have it, Dr. McLellan? 18 DR. BARRY MCLELLAN: I do. 19 MS. SUZAN FRASER: All right. And that 20 report really was about the need for there to be an 21 independent advocate for children and youth, but at page 22 23 it touched on the death review process in The 23 Paediatric Death Review Committee, so I'd ask you turn 24 that up, please. 25
1911 (BRIEF PAUSE) 2 3 MS. SUZAN FRASER: So it starts on page 4 23 and then turning to page 24: 5 "What the report does is it details the 6 fact that The Paediatric Death Review 7 Committee was formed under the 8 leadership of the Ontario Association 9 of Children's Aid Societies and the 10 Office of the Chief Coroner." 11 And did the report get that right, Dr. 12 McLellan? 13 DR. BARRY MCLELLAN: I would have to go 14 back in history. My understanding is is was formed under 15 the leadership of the Office of the Chief Coroner. 16 MS. SUZAN FRASER: All right. But it 17 indicates further down that: 18 "The committee meets monthly and 19 reviews an average of eight (8) to ten 20 (10) suspicious deaths per meeting." 21 Is this correct? 22 DR. BARRY MCLELLAN: I think that's 23 reasonable. 24 MS. SUZAN FRASER: All right. 25 DR. BARRY MCLELLAN: Now, when it says,
1921 "suspicious deaths per meeting," I think it probably is 2 more accurate to say it reviews an average of eight (8) 3 to ten (10) deaths per meeting. 4 MS. SUZAN FRASER: All right. The 5 committee often makes recommendations in response to 6 death reviews. 7 Is that correct? 8 DR. BARRY MCLELLAN: Yes. 9 MS. SUZAN FRASER: "But the committee 10 does not have the power to impose time 11 limits on recommended actions, nor does 12 it presently have the resources to 13 follow up investigations and to monitor 14 implementation of recommendations." 15 Would you agree with that conclusion? 16 DR. BARRY MCLELLAN: Yes. 17 MS. SUZAN FRASER: All right. And then 18 the report goes on to talk about the benefit of having 19 this type of review but then is critical of the 20 committee. Looking to the right-hand side of page 24 the 21 report states: 22 "While The Paediatric Death Review 23 Committee does represent significant 24 progress for health and safety of the 25 interests of children in general, the
1931 current model is not adequate when 2 reviewing the deaths of young people 3 who were in the care of public 4 institutions such as Child Protection, 5 Mental Health, and Young Offender 6 Services." 7 And it goes on to make that criticism 8 because of the representatives of the Children's Aid 9 societies who sit on The Pediatric Death Review 10 Committee. 11 And I take it you'll agree with me, Dr. 12 McLellan, that there is a need for there to be actual and 13 perceived independence in a death review process? 14 DR. BARRY MCLELLAN: Yes, I agree. 15 MS. SUZAN FRASER: All right. And so if 16 a -- if the Children's Aid Society or a children's aid 17 society has -- is the corporate parent or is responsible 18 for a child and is also on The Death Review Committee, 19 it's logical that there would be a perceived conflict in 20 terms of the constitution of the death review. 21 DR. BARRY MCLELLAN: I'm not sure I agree 22 with that. The committee is multi-disciplinary. 23 MS. SUZAN FRASER: Yes? 24 DR. BARRY MCLELLAN: There are many 25 different representatives. I believe that the terms of
1941 reference were reviewed on Monday or Tuesday. 2 MS. SUZAN FRASER: Yes. 3 DR. BARRY MCLELLAN: The Chair always has 4 the power to add -- 5 MS. SUZAN FRASER: Yes. 6 DR. BARRY MCLELLAN: -- additional 7 members as necessary for an investigation and I myself 8 have not had a concern that there was a lack of 9 independence when it came to reviewing deaths and 10 generating recommendations. 11 MS. SUZAN FRASER: All right. You'll 12 agree with me though -- and I think that when Dr. Cairns 13 comes we will see that the majority of the child welfare 14 specialists on that committee are from within or 15 primarily from either the Ontario Association of 16 Children's Aid Society or other regional children's aid 17 societies and if that bears out to be true, then wouldn't 18 you then agree with me that there at least would be a 19 perceived concern about independence of that committee? 20 DR. BARRY MCLELLAN: I'm not even sure I 21 can agree with that because I would need to know what the 22 issue was at hand. The committee reviews many different 23 types of deaths. There are again multiple disciplines 24 who can bring input into the investigation. 25 And I myself have not had concerns brought
1951 to my own attention with respect to a lack of 2 independence when it came to reports being generated or 3 conclusions reached because of the membership. It may 4 well be that this has been brought to Dr. Cairns' 5 attention but it hasn't been brought to my own attention. 6 MS. SUZAN FRASER: All right. 7 COMMISSIONER STEPHEN GOUDGE: Ms. Fraser, 8 you're almost out of time. 9 MS. SUZAN FRASER: And I'm almost done, 10 Mr. Commissioner. 11 12 CONTINUED BY MS. SUZAN FRASER: 13 MS. SUZAN FRASER: The current model of - 14 - in terms of the institutional deaths and particularly 15 those who are in youth custody, certainly at the time 16 this report was written and for most of the time that you 17 were Chief Coroner, Youth Justice was controlled by the 18 Ministry of Community Safety and Public -- Ministry of 19 Community Safety and Correctional Services and its 20 predecessors, which was also the ministry responsible for 21 the Coroner's office. 22 DR. BARRY MCLELLAN: Correct. 23 MS. SUZAN FRASER: All right. And you'll 24 agree with me that, at least in terms of independence, 25 whether it bears out in fact or not there would be a
1961 concern about the perceived independence of the Coroner's 2 Office given that it was from within the same ministry as 3 the Youth Justice facility? 4 DR. BARRY MCLELLAN: I'm not sure I agree 5 with that either. The -- the office investigates many 6 in-custody deaths -- deaths in correctional facilities -- 7 that right now come under the Ministry of Community 8 Safety and Correctional Services, and I, as Chief 9 Coroner, have not been concerned about the independence 10 of those death investigations. 11 As you're aware, when someone dies in 12 custody, in a correctional facility, there's an inquest 13 that's held -- 14 MS. SUZAN FRASER: Yes. 15 DR. BARRY MCLELLAN: -- and I'm not aware 16 that concern has been expressed, through our death 17 investigations or inquests, about a lack of independence 18 because the office happens to be in the same ministry as 19 Correctional Services. 20 MS. SUZAN FRASER: All right. So, for 21 you -- from your -- in your experience, that's not a 22 problem. 23 Do you acknowledge that there could be a 24 perception of that -- 25 COMMISSIONER STEPHEN GOUDGE: I'm going
1971 to have to ask you to wind up, Ms. Fraser. 2 3 CONTINUED BY MS. SUZAN FRASER: 4 MS. SUZAN FRASER: All right. This is my 5 last question -- from outside of your office? 6 DR. BARRY MCLELLAN: If you were to tell 7 me that there is such a perception today, I would not 8 dispute that, but I've not been aware of it myself in my 9 position as Chief Coroner. 10 MS. SUZAN FRASER: Thank you. 11 Thank you, Mr. Commissioner. 12 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 13 Fraser. 14 We'll break now, come back at twenty-five 15 (25) to 4:00 with you, Mr. Carter. Am I wrong about 16 that? Have I got that wrong? 17 MR. ROBERT CENTA: Counsel for the 18 Province of Ontario has requested a brief opportunity to 19 ask some questions. 20 COMMISSIONER STEPHEN GOUDGE: Okay, so 21 I'll put you down for three (3) minutes, Mr. Manuel 22 MR. WILLIAM MANUEL: Very brief. 23 COMMISSIONER STEPHEN GOUDGE: -- five (5) 24 minutes. 25 And we'll be back at twenty-five (25) to
1981 4:00. 2 3 --- Upon recessing at 3:20 p.m. 4 --- Upon resuming at 3:35 p.m. 5 6 THE REGISTRAR: Please be seated. 7 COMMISSIONER STEPHEN GOUDGE: Mr. 8 Manuel...? 9 10 CROSS-EXAMINATION BY MR. WILLIAM MANUEL: 11 MR. WILLIAM MANUEL: Thank you, Mr. 12 Commissioner. 13 Dr. Pollanen, I just have one (1) area 14 that Mr. Ortved touched on that I'd like to explore with 15 you and that is the issue of communications between the 16 pathologists and the Crown, because I represent Crown 17 Attorneys. 18 And you agree with me that -- I think he 19 suggested that it was important for the Crown to 20 appreciate the limitations in the pathologist's opinion, 21 correct? 22 DR. MICHAEL POLLANEN: Correct. 23 MR. WILLIAM MANUEL: You would agree that 24 it's important for all the actors in the criminal justice 25 system to appreciate those limitations?
1991 DR. MICHAEL POLLANEN: Yes. 2 MR. WILLIAM MANUEL: And would you agree 3 with me that the only effective way to communicate the 4 facts to all of them is in a written report? 5 DR. MICHAEL POLLANEN: It's certainly the 6 -- in my view -- the best way to do so. 7 MR. WILLIAM MANUEL: And the earlier the 8 better? 9 DR. MICHAEL POLLANEN: Well, at the time 10 that the autopsy report is prepared, that would be the -- 11 the first opportunity that our system gives for a written 12 report. 13 MR. WILLIAM MANUEL: I mean earlier the 14 better in the criminal justice process. 15 DR. MICHAEL POLLANEN: Oh, definitely, 16 yes. 17 MR. WILLIAM MANUEL: Thank you. 18 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 19 Manuel. 20 Mr. Carter...? 21 22 CROSS-EXAMINATION BY MR. WILLIAM CARTER: 23 MR. WILLIAM CARTER: Thank you, 24 Commissioner. 25 Dr. McLellan and Dr. Pollanen, my name is
2001 Bill Carter. I'm counsel for the Hospital for Sick 2 Children. 3 I have a question for each of you. I will 4 begin with Dr. McLellan. I would like to just briefly 5 explore with you the relationship between a coroner and a 6 pathologist who has been directed by warrant to conduct 7 an examination on a body. 8 Could I begin by observing that, as you 9 indicated to us, all the cases that get referred to the 10 Coroner's Office, pursuant to the legislation, do not 11 necessarily result in a referral to a pathologist. 12 DR. BARRY MCLELLAN: Correct. 13 MR. WILLIAM CARTER: And, as I read the 14 legislation, it's in the discretion of a coroner to make 15 the determination of whether or not there be an 16 examination of the body. 17 DR. BARRY MCLELLAN: Correct. 18 MR. WILLIAM CARTER: And the legislation 19 does not make it clear that the examining party 20 necessarily be a physician. 21 Is that fair? It's silent. 22 23 (BRIEF PAUSE) 24 25 MR. WILLIAM CARTER: I'm referring to
2011 Section 18, I think. 2 DR. BARRY MCLELLAN: I was looking at 3 28(1). 4 MR. WILLIAM CARTER: I'm sorry, that's -- 5 I think you've got the right section. 6 Now, it just doesn't say. 7 DR. BARRY MCLELLAN: Correct. It does 8 not say. 9 MR. WILLIAM CARTER: Now, nothing 10 necessarily turns on this. As I understand it in the 11 regulations the warrant form indicates that it's a 12 licensed medical practitioner to whom you direct the 13 warrant, but the statute itself does not indicate that 14 the examination is to be conducted by a physician? 15 DR. BARRY MCLELLAN: Correct. 16 MR. WILLIAM CARTER: But I take it that 17 that is the invariable practice? 18 DR. BARRY MCLELLAN: Yes. 19 MR. WILLIAM CARTER: And in those cases 20 where an examination is conducted by a physician it isn't 21 necessarily a pathologist who conducts the examination. 22 Is that fair? 23 DR. BARRY MCLELLAN: Now it is only a 24 pathologist who completes the examination. Historically 25 there were non-pathologists who completed post-mortem
2021 examinations. 2 MR. WILLIAM CARTER: And when did that 3 change in practice occur? 4 DR. BARRY MCLELLAN: To the best of my 5 knowledge I dealt with the last non-pathologist within 6 the last five (5) years. It may be within the last three 7 (3) years. 8 MR. WILLIAM CARTER: Okay. So the 9 practice has evolved to the point now where it's fair to 10 say that all referrals for medical examination are to 11 pathologists? 12 DR. BARRY MCLELLAN: Correct. 13 MR. WILLIAM CARTER: And the relationship 14 between the coroner and the pathologist is governed, is 15 it not, by the obligation or duty on a coroner to answer 16 the various questions that are set out in the 17 legislation? 18 DR. BARRY MCLELLAN: Correct. 19 MR. WILLIAM CARTER: And the purpose of 20 the referral is to have the expert pathological 21 examination of the body to assist or facilitate the 22 coroner in answering those questions? 23 DR. BARRY MCLELLAN: Correct. 24 MR. WILLIAM CARTER: And the -- so this - 25 - this is a different kind of medical relationship. It's
2031 not the conventional therapeutic relationship between a 2 physician and a patient. This is more of a consultation 3 relationship between an instructing coroner and an expert 4 who is performing an investigation of a specific type on 5 his or her behalf? 6 DR. BARRY MCLELLAN: Correct. 7 MR. WILLIAM CARTER: And the 8 communication flow is between those two (2) parties for 9 the most part -- 10 DR. BARRY MCLELLAN: Correct. 11 MR. WILLIAM CARTER: -- until the coroner 12 is satisfied that he or she is in a position to certify 13 the death as required by the legislation. 14 DR. BARRY MCLELLAN: Correct. 15 MR. WILLIAM CARTER: Now, if during the 16 course of the examination of the body the pathologist 17 makes findings, or indeed tentative findings that suggest 18 that the cause of death may be due to intentionally 19 inflicted injuries which might give rise to criminal 20 proceedings, that is something that you would expect the 21 pathologist to communicate to you as a -- as a coroner 22 issuing a warrant? 23 DR. BARRY MCLELLAN: Correct. 24 MR. WILLIAM CARTER: It's not necessarily 25 something you'd expect the pathologist to communicate to
2041 anyone else without bringing the information to the 2 coroner first? 3 DR. BARRY MCLELLAN: Correct. 4 MR. WILLIAM CARTER: And similarly if a 5 pathologist in examining a body made findings that 6 suggested that there were old injuries, healing injuries, 7 which were suggestive of child abuse or a history of 8 child abuse, that would give rise to a potential concern 9 for child protection proceedings, might it not? 10 DR. BARRY MCLELLAN: It -- it may. I 11 just want to return to your last question. 12 MR. WILLIAM CARTER: Sure. 13 DR. BARRY MCLELLAN: You -- you jumped 14 into your next before I had a chance to completely 15 finish. 16 MR. WILLIAM CARTER: Sorry. 17 DR. BARRY MCLELLAN: And that's that in a 18 situation where a pathologist is conducting an autopsy it 19 may well be that a police officer is present at the 20 autopsy and may therefore be in receipt of information 21 before a pathologist can communicate with the coroner. 22 MR. WILLIAM CARTER: Very good. In that 23 -- that -- in that circumstance, that's likely to be a 24 case where -- that has been described here as a 25 criminally suspicious case, is it not?
2051 DR. BARRY MCLELLAN: Well, a police 2 officer could be in attendance at an autopsy where it is 3 not a homicide or criminally suspicious case, and still 4 would be in receipt of some information before the 5 pathologist communicates with the coroner. 6 MR. WILLIAM CARTER: I understand. In 7 that circumstance the police constable would be there as 8 an agent of the coroner? 9 DR. BARRY MCLELLAN: Correct. 10 MR. WILLIAM CARTER: So that would -- 11 that would be the coroner's investigating constable? 12 DR. BARRY MCLELLAN: Correct. Or the 13 individual police officer who's there documenting the 14 autopsy as an identification officer. 15 MR. WILLIAM CARTER: Okay, thank you. 16 And thank you for completing your answer. If we could 17 move on to the circumstance where there might be findings 18 that would give rise to child protection concerns. 19 Again, the pathologist may or may not know 20 whether the deceased in the case of a child had siblings. 21 Is that fair? 22 DR. BARRY MCLELLAN: Yes. 23 MR. WILLIAM CARTER: But you would expect 24 a pathologist who made finding suggestive of some history 25 of child abuse to raise with the coroner -- or bring
2061 these findings to the coroners attention, so that 2 appropriate agencies could be contacted if necessary? 3 DR. BARRY MCLELLAN: Yes. And the 4 pathologist need not make the determination as you raised 5 in your question, of child abuse, just previous injuries, 6 and then the coroner could take the next appropriate 7 steps. 8 MR. WILLIAM CARTER: So if we talk about 9 child abuse, that's -- that's a conclusion. I suppose we 10 would avoid that. We would say injuries giving rise to a 11 concern about potential child abuse. 12 DR. BARRY MCLELLAN: Correct. 13 MR. WILLIAM CARTER: Thank you. So in 14 this relationship, the pathologist is performing this 15 examination and reporting to the coroner as the agent of 16 the coroner to enable to coroner to complete the 17 certification process? 18 DR. BARRY MCLELLAN: Correct. 19 MR. WILLIAM CARTER: Thank you. And I 20 would now like to ask Dr. Pollanen a few questions. 21 Could I ask for slide 4 to be -- thank 22 you. 23 Dr. Pollanen, in the evidence, I think on 24 Monday -- I think it was you, but it might have been Dr. 25 McLellan who addressed some of the statistics that are
2071 outlined in this slide. 2 You're familiar with them? 3 DR. MICHAEL POLLANEN: Yes. 4 MR. WILLIAM CARTER: Thank you. And the 5 bottom half of this slide addresses what are described as 6 pediatric deaths, children under the age of five (5), 7 right? 8 DR. MICHAEL POLLANEN: Yes. 9 MR. WILLIAM CARTER: It doesn't -- it 10 doesn't give any specific years here. I take it these 11 are kind of historic averages? There's a range? 12 DR. MICHAEL POLLANEN: That's my 13 assumption. 14 MR. WILLIAM CARTER: Okay. I know 15 there's some other slides further on that may help 16 amplify the information that's summarized here. 17 But would you agree with me that what is 18 depicted here is a fair representation of the, first of 19 all the number of pediatric, as defined under the age of 20 five (5) deaths in the Province of Ontario in current 21 years? 22 DR. MICHAEL POLLANEN: Yes. 23 MR. WILLIAM CARTER: And that the 24 breakdown among the categories is a fair representation, 25 although it's apparent from the range that it varies from
2081 year to year? 2 DR. MICHAEL POLLANEN: Well, I'm not sure 3 we can talk about varying from year to year, but there's 4 a range. 5 MR. WILLIAM CARTER: Well for instance if 6 we deal with homicides, that's -- it suggests five (5) to 7 fifteen (15); that would be a range, would it not? 8 DR. MICHAEL POLLANEN: Oh yes, I see what 9 you're saying, that some years there may be more, some 10 years there may be less, yes. 11 MR. WILLIAM CARTER: So -- but I 12 understand the slide, and so that we can assist the 13 Commission, I take it that the box for instance saying 14 "homicide," showing five (5) to fifteen (15) is 15 suggesting that over a number of years, which isn't 16 disclosed, there's a range between five (5) and fifteen 17 (15) per annum? 18 DR. MICHAEL POLLANEN: Correct -- 19 MR. WILLIAM CARTER: Is that fair? 20 DR. MICHAEL POLLANEN: -- yes. I'm 21 following now. 22 MR. WILLIAM CARTER: Okay. And that 23 would be true of the other ranges in the other boxes? 24 DR. MICHAEL POLLANEN: Yes. 25 MR. WILLIAM CARTER: Okay. And can we
2091 conclude therefore that the -- the box that's been 2 highlighted, the homicide, now those are cases I take it 3 that there was a -- a finding of homicide at the 4 conclusion of the death investigation? 5 DR. MICHAEL POLLANEN: Yes. 6 MR. WILLIAM CARTER: Okay. And I suppose 7 it's possible that some of them started out in some other 8 category, and through the process of the death 9 investigation ended up in the homicide box? 10 DR. MICHAEL POLLANEN: Well, as we've 11 indicated, most of them start off in the undifferentiated 12 category, and then get assigned to one of these 13 categories. 14 MR. WILLIAM CARTER: I understand. Some 15 of them start out, though, as a suspicious death. 16 DR. MICHAEL POLLANEN: Correct, not sort 17 of encompassed here. 18 MR. WILLIAM CARTER: Yeah. Yeah right, 19 okay. But can we conclude from this information that the 20 -- within the scope of the coronial process by which 21 pediatric deaths are investigated we're looking at 2 to 5 22 percent in the homicide area, per annum? 23 DR. MICHAEL POLLANEN: The smallest 24 proportion, yes. 25 MR. WILLIAM CARTER: Yes. And the
2101 largest percent of pediatric deaths reviewed in the 2 coronial system, by far, is the natural death, is it not? 3 DR. MICHAEL POLLANEN: Correct. 4 MR. WILLIAM CARTER: Okay. And you 5 indicated to us that the -- in your view -- and I think 6 there have been a number of questions directed to this 7 issue, and indeed it's one of the issues on the list of 8 issues for this Commission to address itself to. 9 But in your view the debate about whether 10 you should have a forensic pathologist doing pediatric 11 post-mortem examination or a pediatric pathologist doing 12 forensic post-mortem examination is driven, to some 13 extent, by whether the case in question is in the 14 homicide box on the one hand or out in the natural death 15 box on the other. 16 Is that fair? 17 DR. MICHAEL POLLANEN: Yes, those 18 contrasts would embody that concept. 19 MR. WILLIAM CARTER: Right. And we'd 20 have to recognise that there's a bit of a spectrum here, 21 too, isn't there, where some of the attributes of the 22 forensic pathologists may assist in the determination of 23 some of the deaths that are natural deaths. 24 DR. MICHAEL POLLANEN: Yes. 25 MR. WILLIAM CARTER: And as you fairly
2111 represented to us on a number of occasions, ideally this 2 is a collaborative process. 3 DR. MICHAEL POLLANEN: Ideally, yes. 4 MR. WILLIAM CARTER: And as I understand 5 it, of the two hundred and fifty (250) deaths that are 6 examined in the coronial system for pediatrics in 7 Ontario, a large number of them are conducted at the 8 Hospital for Sick Children. 9 Is that not fair? 10 DR. MICHAEL POLLANEN: That's one of the 11 major sites, yes. 12 MR. WILLIAM CARTER: Right. More than 13 half would be done at Sick Kids? 14 DR. MICHAEL POLLANEN: I think that's 15 true. 16 MR. WILLIAM CARTER: Okay. Well, let's 17 say it's approximately half. Nothing turns on the 18 precise number. 19 But you'd agree with me that at the 20 Hospital for Sick Children, this is the pediatric 21 forensic unit that's called the Ontario Pediatric 22 Forensic Unit by the Coroner's Office, if not by the 23 hospital, is examining cases referred to it by coroner's 24 warrant amounting to more than a hundred (100) per year? 25 DR. MICHAEL POLLANEN: Yes.
2121 MR. WILLIAM CARTER: And, of course, it's 2 also doing pediatric post-mortem examinations for cases 3 that are not referred to it by the Coroner's Office. 4 DR. MICHAEL POLLANEN: Correct. 5 MR. WILLIAM CARTER: Right. And at the 6 Hospital for Sick Children, indeed this is true of the 7 other pediatric facilities where the forensic pathology 8 units around the Province are located, there are a 9 variety of sub-specialties and specialties available to 10 the pathologist. 11 DR. MICHAEL POLLANEN: Yes. 12 MR. WILLIAM CARTER: Yeah. And you, or 13 your -- whoever prepared the overview report on behalf of 14 the Coroner's Office, made the point that in the -- and I 15 can take you to the document, but I suspect this isn't 16 contentious -- that in those locations where you're 17 conducting pediatric autopsies, it's of great assistance 18 to the coroner's system to have available the resources 19 found in a pediatric academic health sciences centre. 20 DR. MICHAEL POLLANEN: If those resources 21 are not provided elsewhere, yes. 22 MR. WILLIAM CARTER: Right, well, they're 23 provided for the conduct of coronial autopsies at the 24 units that exist in the Province, are they not? 25 DR. MICHAEL POLLANEN: Well, I would say
2131 that there is benefit to having forensic pathology units 2 situated in institutions that are well resourced 3 providing the scope of ancillary tests required for the 4 post-mortem examination. And one of the benefits, one of 5 the benefits of the, for example, Hospital for Sick 6 Children, is that there is advanced medical imaging which 7 is -- can be quite beneficial to the post-mortem. 8 MR. WILLIAM CARTER: So when we talk 9 about medical imaging, there's a number of -- of 10 techniques that we know about. There's the X-ray and 11 there's the CT scan and there's the MRI. Those are all 12 available, certainly, at the Hospital for Sick Children 13 to be mobilized where appropriate in the case of a 14 pediatric post-mortem exam. 15 DR. MICHAEL POLLANEN: Correct. 16 MR. WILLIAM CARTER: Whether it's 17 forensic or otherwise? 18 DR. MICHAEL POLLANEN: Correct. 19 MR. WILLIAM CARTER: Yeah. And, indeed, 20 at the Hospital for Sick Children there's a -- a 21 department with a -- with a division within the 22 Department of Diagnostic and Laboratory Medicine, called 23 the Division of Pathology, which contains -- it varies, 24 but eight (8) or ten (10) pediatric pathologists. 25 DR. MICHAEL POLLANEN: Yes, I'm .. I'm
2141 cross-appointed there. 2 MR. WILLIAM CARTER: Well, I was going to 3 get to that. 4 DR. MICHAEL POLLANEN: Yeah. 5 MR. WILLIAM CARTER: And what's -- what's 6 particularly important for us to know about the Division 7 of Pathology at the Hospital for Sick Children is that it 8 contains a number of specialities and sub-specialties to 9 pathology that, first of all, they relate to pediatric 10 pathology. 11 You would agree this is a subdivision of 12 pathology? 13 DR. MICHAEL POLLANEN: Yes. 14 MR. WILLIAM CARTER: And within the 15 subdivision there are further sub-subdivisions, if you 16 like. For instance, there is neuropathology. 17 DR. MICHAEL POLLANEN: Yes. 18 MR. WILLIAM CARTER: And that's the 19 examination of the nervous system and, in the case of the 20 pediatric autopsy, it involves a study of the brain? 21 DR. MICHAEL POLLANEN: Yes. 22 MR. WILLIAM CARTER: And there are two 23 (2) neuropathologists -- pediatric neuropathologists -- 24 at the Hospital for Sick Children currently? 25 DR. MICHAEL POLLANEN: There are, yes.
2151 MR. WILLIAM CARTER: And those special 2 resources are available to you or anyone else who's 3 conducting a post-mortem examination at the hospital, 4 whether it's forensic or otherwise, are they not? 5 DR. MICHAEL POLLANEN: Correct. 6 MR. WILLIAM CARTER: And I take it that 7 while you favour in those cases that would benefit more 8 from the forensic approach, you do recognize there are 9 some cases that don't require the input of a forensic 10 pathologist; they're more straightforward, if you like, 11 from a forensic perspective. 12 DR. MICHAEL POLLANEN: I would say that 13 there are some pediatric cases that come under Coroner's 14 Warrant which are best served by pediatric pathologists. 15 MR. WILLIAM CARTER: Yes. And that may, 16 in fact, be the majority at the Hospital for Sick 17 Children. 18 DR. MICHAEL POLLANEN: If you use natural 19 deaths as an indicator, yes. 20 MR. WILLIAM CARTER: Yes. Okay. But, in 21 any event, in the ideal system, you would have available, 22 not only those whose specialty is pediatric pathology, 23 but you would have those whose specialization was in 24 forensic pathology, even though they might not have a 25 particular specialization in pediatrics.
2161 DR. MICHAEL POLLANEN: In an -- 2 MR. WILLIAM CARTER: Such -- such as 3 yourself. 4 DR. MICHAEL POLLANEN: -- in an ideal 5 system -- 6 MR. WILLIAM CARTER: Right. 7 DR. MICHAEL POLLANEN: -- there are many 8 things you would like. 9 MR. WILLIAM CARTER: Yeah. Well, in fact, 10 at the Hospital for Sick Children there is a full-time 11 pathologist -- pediatric pathologist on staff. He used 12 to be Chief Forensic Pathologist for Ontario and that's 13 Dr. Chaisson. 14 Is that not true? 15 DR. MICHAEL POLLANEN: Correct. 16 MR. WILLIAM CARTER: And, of course, 17 there's yourself, sir. As we know, you are a pediatric - 18 - or, excuse me -- a forensic pathologist. 19 DR. MICHAEL POLLANEN: Correct. 20 MR. WILLIAM CARTER: You are on staff 21 there. 22 DR. MICHAEL POLLANEN: I am, yes. 23 MR. WILLIAM CARTER: And you do conduct 24 post-mortem examinations there, do you not? 25 DR. MICHAEL POLLANEN: I do.
2171 MR. WILLIAM CARTER: Yes, and when you do 2 that, we do have here the best of all words, do we not? 3 We have you with the ability to collaborate with other 4 pediatric pathologists and other forensic pathologists, 5 and we have access to all of the specialized laboratory 6 techniques, procedures and equipment that the Hospital 7 for Sick Children can bring to bear. 8 DR. MICHAEL POLLANEN: Well, there 9 certainly are many desirable features to the Unit -- 10 MR. WILLIAM CARTER: Right. 11 DR. MICHAEL POLLANEN: -- and the people 12 that staff the Unit. 13 MR. WILLIAM CARTER: So, the 14 collaborative model that you advocate, to some extent, 15 currently exists now at the Hospital for Sick Children. 16 DR. MICHAEL POLLANEN: To some extent. 17 MR. WILLIAM CARTER: Okay, thank you. 18 COMMISSIONER STEPHEN GOUDGE: Before you 19 move away from that slide, Mr. Carter, can I just ask Dr. 20 Pollanen -- that slide obviously represents a 21 categorization at the end of the death investigation 22 process. 23 DR. MICHAEL POLLANEN: Yes. 24 COMMISSIONER STEPHEN GOUDGE: If one 25 began at the front end of the death investigation process
2181 can you give me some sense of how many of the two hundred 2 and fifty (250) cases would best profit from the forensic 3 specialty rather than the pediatric specialty? 4 I mean at the front end you don't know 5 going in and so there'll be a penumbra around the five 6 (5) to fifteen (15). I mean what are we talking about? 7 Are we talking about seventy-five (75) of the two hundred 8 and fifty (250) or are we talking about thirty (30) of 9 the two hundred and fifty (250)? 10 Or is that a question that's impossible to 11 answer? 12 DR. MICHAEL POLLANEN: It's -- I'm not 13 sure if it's impossible to answer it. I've been thinking 14 about it for several days and here's the problem with 15 answering the question. 16 And the problem comes back to the -- the 17 challenge that I identified at the beginning with 18 pediatric forensic pathology and that is that in many of 19 these cases the case that will ultimately be determined 20 to be SIDS and the case that will ultimately be 21 determined to be a homicide appear the same at the 22 beginning, at the outset. 23 So if you were designing -- 24 COMMISSIONER STEPHEN GOUDGE: But SIDS 25 goes into your natural --
2191 DR. MICHAEL POLLANEN: Correct. So in 2 other words, if you could -- you could have in this -- in 3 this undifferentiated group before they're -- before 4 they're classified, you could have a case that would be 5 indistinguishable that would ultimately be a homicide or 6 a natural case. 7 So what does that mean for the front end? 8 What does that mean about how we triage or how we group 9 cases? For example, to use the -- the issue that's been 10 raised here, if you were to sort of harness the pediatric 11 and harness the forensic appropriately we know that after 12 the fact it's -- the majority of the cases are natural 13 and therefore benefit greatly from the pediatric 14 pathologist. 15 The problem is how to do that in -- in the 16 knowledge vacuum when the data doesn't flow? And the -- 17 COMMISSIONER STEPHEN GOUDGE: That's 18 exactly the question I asked but much better put. 19 DR. MICHAEL POLLANEN: Well, I'm 20 struggling with it and -- and the best approach that I 21 can -- that I can think of right now -- and believe me 22 I'm -- I'm going to continue to think about this question 23 -- is that the forensic environment is really the -- the 24 safest step, initially. 25 COMMISSIONER STEPHEN GOUDGE: Why?
2201 DR. MICHAEL POLLANEN: Because it's the 2 forensic process that will ultimately triage the case. 3 And the -- 4 COMMISSIONER STEPHEN GOUDGE: That isn't 5 self-evident. You'll have to explain why that's so to 6 me. 7 DR. MICHAEL POLLANEN: Well, let's put it 8 like this. If the -- if the case goes to the -- the 9 pediatric unit and is -- and is autopsied therefore by 10 the pediatric hospital pathologist and the case is 11 congenital heart disease, then the autopsy's best served 12 by having the pediatric cardiovascular pathologist. 13 If, however, the autopsy is proceeding and 14 the chest and abdomen are open and there are no findings 15 and the head gets opened and all of a sudden you're into 16 the shaken baby issue, where is it best served? Where is 17 that case best served? 18 And I wonder if it is best served in a 19 forensic environment. But this then closely links to 20 this whole issue of can we accomplish the same high- 21 quality end result in a collaborative process -- 22 COMMISSIONER STEPHEN GOUDGE: Right, 23 right. 24 DR. MICHAEL POLLANEN: -- by for example 25 double-doctoring.
2211 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. MICHAEL POLLANEN: And this is what 3 I'm struggling with. I'm trying -- I'm trying to think 4 of how that could be accomplished in terms of, for 5 example institutional relationships -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. MICHAEL POLLANEN: -- professional 8 relationships, guidelines. It's a very difficult 9 question. 10 COMMISSIONER STEPHEN GOUDGE: Well, I'd 11 be grateful if you'd continue to think about it. 12 DR. MICHAEL POLLANEN: I will. 13 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 14 Carter. 15 MR. WILLIAM CARTER: Thank you, 16 Commissioner. Those are my questions. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 Back to my pencilled outline here. I think, am I right, 19 Mr. Centa, we're at Mr. Lockyer? 20 MR. ROBERT CENTRA: Yes. 21 22 (BRIEF PAUSE) 23 24 COMMISSIONER STEPHEN GOUDGE: I think, 25 Mr. Lockyer, in terms of time my suggestion is that we go
2221 for thirty (30) minutes now and then pick up the balance 2 of your time tomorrow. 3 MR. JAMES LOCKYER: That's all right with 4 me, Mr. Commissioner, sure. 5 6 CROSS-EXAMINATION BY MR. JAMES LOCKYER: 7 MR. JAMES LOCKYER: Dr. Pollanen, perhaps 8 I'll just introduce myself. James Lockyer, I'm here for 9 nine (9) individuals, and we'll come to who they are in 10 one (1) form or another in a minute. 11 Dr. Pollanen I just want to put the -- the 12 figures into some kind of perspective very quickly. The 13 -- the external or the review took on forty-five (45) 14 cases all together. 15 Is that right, sir? 16 DR. MICHAEL POLLANEN: Yes. 17 MR. JAMES LOCKYER: And ten (10) of them 18 were not subjected to external -- first of all, they were 19 all the suspicious death cases that Dr. Smith looked at 20 in the eleven (11) year period, '91 to 2002? 21 DR. MICHAEL POLLANEN: The sus -- 22 MR. GRANT HOOLE: 1988. 23 COMMISSIONER STEPHEN GOUDGE: There's one 24 (1) from '88, but I think that -- 25
2231 CONTINUED BY MR. JAMES LOCKYER: 2 MR. JAMES LOCKYER: There was one (1) 3 intruder, yes, that's true, from 1988, but effectively 4 from '91 to 2002? 5 DR. MICHAEL POLLANEN: Defined as 6 criminally suspicious cases, homicides in which Dr. Smith 7 performed the post-mortem or made a consultation. 8 MR. JAMES LOCKYER: Right. So they were 9 the ones where he at least superficially played an 10 important role in which the criminal justice system was 11 affected in one (1) way or another? 12 DR. MICHAEL POLLANEN: Well many -- some 13 of the cases did not enter the criminal justice system or 14 did not lead to trial or conviction, but -- but yes, 15 those were -- those were the perimeters or the inclusion 16 criteria. 17 MR. JAMES LOCKYER: And ten (10) of them 18 were determined, really by you, to be quite capable of 19 internal review because they were uncontroversial and the 20 -- the pathology work was really fairly simple, am I 21 right? 22 DR. MICHAEL POLLANEN: The ten (10) were 23 stratified by the sub-committee where I played a large 24 role in assessing the pathological nature of those ten 25 (10) cases.
2241 MR. JAMES LOCKYER: And I describe that 2 pathological nature reasonably accurately? They were 3 non-controversial, not what might be considered difficult 4 cases? 5 DR. MICHAEL POLLANEN: "Difficult" is a 6 relative term. They were non-controversial in so far as 7 the -- the pathological findings were self evident, and 8 that was therefore confirmed or recognized by the 9 internal review. 10 MR. JAMES LOCKYER: The remaining thirty- 11 five (35) were certainly capable of being considered 12 controversial, and the findings were not necessarily self 13 evident, is that fair? 14 DR. MICHAEL POLLANEN: The thirty-five 15 (35) cases ran quite a large spectrum in the criminally 16 suspicious homicidal category. 17 MR. JAMES LOCKYER: And of those thirty- 18 five (35) then, as we've heard, in twenty (20) of them 19 Dr. Smith's opinions in one way or another was -- were 20 challenged by the external reviewers? 21 DR. MICHAEL POLLANEN: Using the -- the 22 check list instrument, yes. 23 MR. JAMES LOCKYER: Which was -- which if 24 you look -- took it -- put it into a percentage figure, 25 that would be 57 percent of those cases were cases that
2251 the external reviewers felt were -- should be challenged? 2 DR. MICHAEL POLLANEN: Precisely the type 3 of analysis that I hope would ever -- would not happen in 4 this case. 5 MR. JAMES LOCKYER: But if you look at it 6 from the criminal justice system point of view, sir, 7 those figures hold, do they not? 8 DR. MICHAEL POLLANEN: Well certainly 9 that's a -- that's a ratio. 10 MR. JAMES LOCKYER: Mm-hm. 11 DR. MICHAEL POLLANEN: That's the 12 percentage of that ratio. 13 MR. JAMES LOCKYER: And it's really the 14 criminal justice system that we are concerned about as 15 much as anything in this Inquiry? 16 DR. MICHAEL POLLANEN: I thought the 17 Inquiry was into pediatric forensic pathology. 18 MR. JAMES LOCKYER: And how it effects 19 the criminal justice system? 20 DR. MICHAEL POLLANEN: That's one (1) 21 element. 22 MR. JAMES LOCKYER: And, Dr. McLellan, if 23 I can just move to you for a minute, of those twenty (20) 24 cases, thirteen (13) of them as we've heard, resulted in 25 findings of guilt in one (1) way or another. Twelve (12)
2261 of them in convictions and one (1) of them in a not 2 criminally responsible finding. 3 Is that right, sir? 4 DR. BARRY MCLELLAN: That's correct. 5 MR. JAMES LOCKYER: And as you know I 6 think, I'm here on behalf of nine (9) of those thirteen 7 (13)? You're aware of that? 8 DR. BARRY MCLELLAN: I am. 9 MR. JAMES LOCKYER: And, Dr. Pollanen, 10 you're familiar with each of those nine (9) cases to a 11 fairly considerable degree? 12 Am I right, sir? 13 DR. MICHAEL POLLANEN: Yes. 14 MR. JAMES LOCKYER: Mm-hm. In your 15 January 8th, 2007 memo to Dr. McLellan, sir, it's 032588, 16 if we go to page 3 of it. 17 DR. MICHAEL POLLANEN: 108. 18 DR. BARRY MCLELLAN: Tab 108. 19 COMMISSIONER STEPHEN GOUDGE: Do you have 20 a tab number, Mr. Centa? 21 MS. LINDA ROTHSTEIN: 106. 22 COMMISSIONER STEPHEN GOUDGE: 106, 23 thanks, Ms. Rothstein. 24 MR. ROBERT CENTA: 108. 25 COMMISSIONER STEPHEN GOUDGE: 108.
2271 2 CONTINUED BY MR. JAMES LOCKYER: 3 MR. JAMES LOCKYER: At page 3, item 10, 4 sir, you say, and this is your memorandum to Dr. 5 McLellan, are you with me? 6 DR. MICHAEL POLLANEN: Yes. 7 MR. JAMES LOCKYER: You say that: 8 "In twenty-one (21) of the thirty-five 9 (35) external review cases someone was 10 convicted of homicide or a related 11 offence." 12 I'm not quite sure it isn't -- that -- 13 that's not really quite right the way you've worded that; 14 it should be in twenty (20) of the thirty-five (35) cases 15 someone was charged with or convicted -- and/or convicted 16 of homicide or a related off -- offence, right? 17 And then -- so actually you haven't worded 18 it quite right there, but I -- I'm not too concerned with 19 the first sentence; it's the next sentence: 20 "In these twenty-one (21) cases it's my 21 view that there were six (6) cases that 22 had significant problems related to 23 forensic pathology." 24 And you then list six (6) cases, do you 25 see that?
2281 DR. MICHAEL POLLANEN: Yes, I do. 2 MR. JAMES LOCKYER: And, as you know, 3 five (5) of those cases are a part of the nine (9) that I 4 represent who have standing. 5 DR. MICHAEL POLLANEN: I didn't know that 6 by name, but I accept that. 7 MR. JAMES LOCKYER: Valin, Joshua, 8 Gaurov, Kassandra, and Dustin. 9 DR. MICHAEL POLLANEN: I accept that. 10 MR. JAMES LOCKYER: And you're aware of - 11 - of the other four (4), sir, are you, that I'm also here 12 for, Baby M, Baby F, Tamara, and Kenneth? 13 DR. MICHAEL POLLANEN: Yes. 14 MR. JAMES LOCKYER: Okay. And to take 15 the five (5) -- five (5) -- the five (5) cases, sir, out 16 of those six (6) that appear in that paragraph, would you 17 agree, Dr. Pollanen, that in those five (5) cases there's 18 a reasonable basis to conclude that there may have been a 19 miscarriage of justice in one (1) or more of those five 20 (5) cases, indeed in one (1) of them we know that has, 21 Valin's case, but in the others, as well. 22 DR. MICHAEL POLLANEN: Forensic 23 pathologists don't make that determination. 24 MR. JAMES LOCKYER: I'm not asking you to 25 prove there was, just -- there's a basis to conclude
2291 there was and the pathology is now questioned. 2 DR. MICHAEL POLLANEN: Mr. Lockyer, 3 that's not the -- the role of the pathologist. 4 MR. JAMES LOCKYER: I'm not really trying 5 to get at -- at the role to have you declare that as a 6 fact, sir, I'm more interested in -- in if the pathology 7 is wrong in a case, then obviously it opens the door to a 8 potential for a miscarriage of justice. 9 COMMISSIONER STEPHEN GOUDGE: It's going 10 to be hard for him to say that without knowing anything 11 about the standard and everything, isn't it, Mr. Lockyer? 12 MS. LINDA ROTHSTEIN: And, Commissioner, 13 if I may, I'm just concerned about restrictions on our 14 mandate, unless there be some misperception about what we 15 are doing here and what we're not. 16 17 CONTINUED BY MR. JAMES LOCKYER: 18 MR. JAMES LOCKYER: Well, re -- really 19 what I'm -- I'm trying to do, Mr. Commissioner -- I'll 20 move onto Dr. McLellan and I think you'll see what -- 21 what I'm -- what my aim is here because -- Dr. McLellan, 22 to come back to you as -- as the -- sort of the person 23 who -- whose office has presided over all the proceedings 24 that -- that came out of the various cases that have been 25 reviewed that Dr. Smith worked on, there must be a
2301 concern on the part of your office that Dr. Smith's 2 conclusions, assuming that they are erroneous in many 3 cases, as the external reviewers have decided, there must 4 be concern in your office that there is a potential here 5 for a series of miscarriages of justice. 6 DR. BARRY MCLELLAN: Mr. Lockyer, I don't 7 think I can do better than to read from a paragraph in 8 the April 19, 2007 backgrounder document, it's found on 9 page 4 of the document. 10 "The Chief Coroner appreciates the 11 public concern that may arise as a 12 result of the reviewers having 13 expressed differing opinions in cases 14 where there were subsequent convictions 15 or a finding of not criminally 16 responsible. As indicated, the 17 opinions of the external reviewers and 18 the concerns leading to this opinion 19 for all of these cases have been or are 20 in the process of being shared with 21 appropriate Crown and defence counsel. 22 The significance of the concerns 23 expressed by the reviewers specifically 24 with respect to the role, any medical 25 evidence may have played in a finding
2311 of guilt will therefore be 2 appropriately considered." 3 Now, I did indicate at the time of the 4 press conference that as Chief Coroner I was concerned 5 with the overall results but in answer to your specific 6 question I don't think I can do better than to refer to 7 that specific paragraph. 8 MR. JAMES LOCKYER: Well, what I want to 9 ask you, Dr. McLellan, is this. What do you perceive to 10 be the responsibility of your office from this point on 11 where these cases are concerned? It is your opinion it's 12 enough to hand the cases over to the Attorney General's 13 office and leave it to them? 14 DR. BARRY MCLELLAN: I identified a 15 number of lessons learned and they have also been covered 16 earlier in evidence here, Mr. Lockyer. 17 I've also indicated earlier in evidence 18 that there will be a further review conducted by the 19 Office of cases between 1991 -- between 1981 and 1991. 20 The Office -- as you're aware I'm no longer the Chief 21 Coroner but has been interested in learning from cases 22 and investigations. I believe that there have been a 23 number of quality assurance mechanisms put in place prior 24 to, during, and as a result of this review. 25 MR. JAMES LOCKYER: I -- I hate to cut
2321 you off but you're really not answering the question with 2 respect. The question was: 3 What do you perceive to be the Chief 4 Coroner's Office's responsibility now if any, with 5 respect to the individual cases? Is it enough to just 6 hand the problem over to the Crown and that's the end of 7 your responsibility? 8 DR. BARRY MCLELLAN: Well, in fact I was 9 just about to conclude and I think answer the question. 10 MR. JAMES LOCKYER: It's individual cases 11 I'm asking you about -- 12 DR. BARRY MCLELLAN: Right. 13 MR. JAMES LOCKYER: -- not the -- not 14 other issues. 15 DR. BARRY MCLELLAN: I appreciate that 16 but in the individual cases if there's lessons to be 17 learned for the larger coroner's system, then we need to 18 take those lessons and ensure that the information is 19 made available to those in our death investigation system 20 and others. 21 As far as the individual cases here and 22 any implications they may have for the criminal justice 23 system, I do not believe that the Office of the Chief 24 Coroner has any further responsibility with the cases. 25 MR. JAMES LOCKYER: What about the
2331 implications for the individuals, sir? 2 They presently are convicted of crimes 3 where the pathology has been undermined by the external 4 reviewers. Do you see your office as having a further 5 responsibility towards the individuals who may have 6 suffered a miscarriage of justice as a consequence of 7 that? 8 COMMISSIONER STEPHEN GOUDGE: You mean 9 apart from the criminal justice system? 10 MR. JAMES LOCKYER: Apart from just 11 passing it over to the Crowns and saying here you go. 12 COMMISSIONER STEPHEN GOUDGE: No, but he 13 said he doesn't think he has any for the criminal justice 14 system. Do you mean apart from the criminal justice 15 system? 16 MR. JAMES LOCKYER: No, insofar as what 17 happens to those individuals now within a continuing 18 criminal process. 19 COMMISSIONER STEPHEN GOUDGE: He's 20 answered that question, Mr. Lockyer. He says the 21 institution doesn't have any. 22 DR. BARRY MCLELLAN: That was my answer. 23 24 CONTINUED BY MR. JAMES LOCKYER: 25 MR. JAMES LOCKYER: All right. So have
2341 you for example ever met with any of the Crowns who are 2 assigned to any of these cases --- to discuss the cases 3 with them or have you, Dr. Pollanen, for that matter? 4 DR. BARRY MCLELLAN: I have not met with 5 any of the individual Crowns. 6 MR. JAMES LOCKYER: Dr. Pollanen? 7 DR. MICHAEL POLLANEN: In the Valin case 8 and in the Paolo case. 9 MR. JAMES LOCKYER: All right. And in 10 the other seven (7) that I'm particularly concerned with 11 you haven't? 12 DR. MICHAEL POLLANEN: No. 13 MR. JAMES LOCKYER: Have you requested 14 meetings with the individual Crowns -- you or Dr. 15 McLellan? 16 DR. MICHAEL POLLANEN: I have not, no. 17 DR. BARRY MCLELLAN: No. 18 MR. JAMES LOCKYER: Do you think that 19 might be a worthwhile exercise that you might be able to 20 impart information to them that could help them in their 21 assessments of the cases? 22 DR. BARRY MCLELLAN: I'm going to go back 23 to my original answer which was the long one that you -- 24 you cut me off on earlier and that's that if there are 25 lessons to be learned from any of these cases, I believe
2351 those lessons need to be shared broadly within our death 2 investigation system and that the Office has an 3 obligation to do so. 4 As far as meeting with individuals, I 5 certainly had no intention of doing so before I left the 6 Office. 7 MR. JAMES LOCKYER: So if we go back to 8 Item 10 in -- in Dr. Pollanen's letter of January 8th of 9 this year, we have three (3) names there in particular; 10 Gaurov, Kassandra and Dustin, where, really, no input has 11 been made as such by either you, Dr. McLellan, or you, 12 Dr. Pollanen, with the Attorney General's Office. 13 Am I right? 14 DR. BARRY MCLELLAN: Not myself. 15 DR. MICHAEL POLLANEN: I have not 16 initiated anything with the Attorney General's Office 17 with the understanding that the forensic pathologist's 18 role is not that of an advocate. 19 The forensic pathologist's role is to 20 provide an expert opinion and communicate that expert 21 opinion for other people, in this case, legal actors to 22 act on. 23 MR. JAMES LOCKYER: Dr. McLellan, you 24 don't think there's an obligation on the part of your 25 office, if an individual in your office has done
2361 something that may have caused a miscarriage of justice, 2 to proactively try and do something about it? 3 DR. BARRY MCLELLAN: Well, once again, if 4 there's lessons to be learned, they should be 5 communicated broadly; not just to an individual who may 6 have been involved with a case. 7 MR. JAMES LOCKYER: I wouldn't disagree 8 with that. But I'm -- I'm not saying not just to the 9 individual; I'm saying "broadly and to the individual". 10 You're saying "broadly and not to the individual", as 11 best I can understand you. And I'm saying it should be 12 both. 13 DR. BARRY MCLELLAN: My -- my "broadly" 14 would include the individual, but not be specifically 15 directed to them. 16 MR. JAMES LOCKYER: So, in essence, you 17 have neither -- neither of you have either sought to make 18 input into how these cases move from here, nor has any 19 input been sought from you with regard to these cases 20 from the Attorney General's Office as to where they 21 should go from here. 22 Is that a fair summary -- leaving out the 23 Valin's case and the -- 24 COMMISSIONER STEPHEN GOUDGE: The two (2) 25 cases he mentioned.
2371 2 CONTINUED BY MR. JAMES LOCKYER: 3 MR. JAMES LOCKYER: Two (2) cases, Paolo 4 case. It's been neither sought nor given -- input. 5 DR. MICHAEL POLLANEN: Correct. 6 DR. BARRY MCLELLAN: Correct. 7 MR. JAMES LOCKYER: Have you considered 8 this before you left office, Dr. McLellan? Had -- had 9 you -- had you discussed this between you as to what role 10 you should play now in the individual cases; as to 11 whether you should get involved and be proactive on the 12 individual cases, rather than let the lawyers deal with 13 them? 14 DR. BARRY MCLELLAN: I have no 15 recollection of having such a discussion with Dr. 16 Pollanen. He may have a different recollection, but I 17 don't recall ever discussing us having any specific 18 involvement with these cases. Dr. Pollanen...? 19 DR. MICHAEL POLLANEN: Not focussed 20 discussions on how we should subsequently manage issues 21 of this type. 22 MR. JAMES LOCKYER: One of the things 23 that you do in these cases, and you've told us about it, 24 is have case conference meetings involving all the 25 concerned parties, which will often include pathologists,
2381 police officers, one (1) or more Crown attorneys and 2 perhaps other individuals as well -- especially, 3 potentially people from Centre of Forensic Science -- 4 case management meetings to decide where you go from here 5 in a particular case, right? 6 DR. MICHAEL POLLANEN: That's a frequent 7 practice, yes. 8 MR. JAMES LOCKYER: Is there any reason 9 why that practice couldn't be engaged now, sir, in these 10 individual cases where there may have been miscarriages 11 of justice, where all the interested parties could get 12 together, perhaps at your instigation, as -- as 13 objective, non-partisan individuals; to call together the 14 Crowns, the Defence, the police officers -- all concerned 15 parties, but this time including the Defence as well to 16 see if these miscarriages of justice, if such they be, be 17 resolved on a non-adversarial basis? 18 Any problem with that? Why not use the 19 same strategy, if you will, to try and solve a problem 20 after it's happened as opposed to trying to see how you 21 should deal with something before it's happened? 22 DR. MICHAEL POLLANEN: Well, the two (2) 23 are very different. 24 MR. JAMES LOCKYER: Mm-hm. 25 DR. MICHAEL POLLANEN: And the -- the
2391 difference there is that the -- the forensic pathologist 2 is an expert. They're -- they're not driving a post- 3 conviction relief process. There are institutions and 4 statutes and -- and other legal apparatuses that are 5 available for that, and it's -- it's not really the duty 6 of the forensic pathologist to be the advocate of that 7 process. 8 And besides, it would -- it would be in my 9 view quite dangerous for the forensic pathologist to 10 advocate for that type of process. Because you're really 11 stepping out of your role. 12 MR. JAMES LOCKYER: Not if you invite 13 both sides to the dispute so to speak, and discuss the 14 issues that need to be resolved in a particular case. 15 Especially when the problem if such it be has come out of 16 your office in the first place. 17 DR. MICHAEL POLLANEN: I -- I just don't 18 see how -- how the institutional role as I understand it 19 could be enlarged to encompass that goal. 20 MR. JAMES LOCKYER: Let me try it this 21 way, sir. If you were requested by one (1) of the 22 parties to get involved in such a process, a non- 23 adversarial process, would you have any objection to 24 being involved in it? 25 And I'm looking at you Dr. Pollanen, but
2401 really it's a question more for Dr. McLellan as the -- as 2 the policy maker, but more directed to you as the person 3 who would be the one likely in attendance at such a 4 meeting? 5 DR. MICHAEL POLLANEN: Well perhaps I'll 6 let Dr. McLellan answer first then. 7 DR. BARRY MCLELLAN: That was very 8 smooth, Dr. Pollanen. 9 COMMISSIONER STEPHEN GOUDGE: I was 10 afraid you'd say that. 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: You see, I mean just 14 to preface it a little more. The problem with these 15 cases is they're now -- they're now suddenly moved into 16 an adversarial system where lawyers tend to take their 17 stances, one (1) set on one side, one (1) set on the 18 other side, and you end up with a dispute that sure a 19 court can resolve, and it can take years to resolve. 20 And it's just occurred to me that if we 21 could get everyone in the same room to talk about lets 22 say Gaurov's case for example. If we could get all the 23 people that count in one (1) room on Gaurov case, and 24 talk it through, which to a degree is what was done in 25 Valin's case with you, Dr. McLellan, if you recall? I'm
2411 sure you do. 2 Where the defence and Crowns met with you 3 and talked about how to resolve Valin's case. Do you not 4 think it would be a helpful process to do the same in, to 5 take an example, Gaurov's case as well? 6 DR. BARRY MCLELLAN: I just don't see the 7 office becoming involved in the dispute resolution 8 process, which is really what you're -- you're asking. I 9 don't believe that that is in the best interest of the 10 mandate of the office in dealing with coroner's 11 investigations and public safety. 12 Quite frankly I think it would be a useful 13 item to discuss at the Forensic Services Advisory 14 Committee. There have been some excellent discussions 15 there about the development of processes, how to deal 16 with -- with such matters. 17 I think that's where the discussion should 18 take place. 19 COMMISSIONER STEPHEN GOUDGE: Would your 20 concern, Dr. McLellan, be about leading it or 21 participating in it, or both? I mean is it the leading 22 it that you're implicitly concerned about -- 23 DR. BARRY MCLELLAN: It is. 24 COMMISSIONER STEPHEN GOUDGE: -- or is it 25 the participation in it.
2421 DR. BARRY MCLELLAN: It's taking the lead 2 in a matter that is right in the middle of the criminal 3 justice system. That I don't see the office having a 4 lead role in a post conviction review. I don't see the 5 office having a lead role in this type of dispute 6 resolution. 7 As a participant, if it was well thought 8 through, if it was felt to be value added and as a result 9 of the sort of discussion that can take place at the 10 Forensic Services Advisory Committee, which is where I 11 believe such discussion should take place, it may be that 12 there is a model in future that would -- would be of 13 value. 14 But taking the lead does not feel right to 15 me today. 16 17 CONTINUED BY MR. JAMES LOCKYER: 18 MR. JAMES LOCKYER: So if I took the 19 lead, Dr. McLellan, and suggested to take Gaurov's case 20 as an example, that Gaurov's counsel, Crown counsel 21 assigned to Gaurov's case, yourself, Dr. Pollanen -- well 22 not yourself now, but your successor I suppose, Dr. 23 Pollanen, and conceivable Dr. Whitwell when she's here in 24 December, because she's the one (1) who reviewed that 25 particular case -- that if we all met it's conceivable
2431 that at the end of it we could all walk out of there 2 agreeing where Gaurov's case should go from here. 3 DR. BARRY MCLELLAN: It's conceivable. 4 It just seems to me that it's a discussion that should 5 take place outside of a public inquiry and that it's -- 6 it's a very appropriate discussion to take place at the 7 Forensic Services Advisory Committee, so am I dismissing 8 it at hand in saying that there's absolutely no potential 9 benefit, no. 10 I don't believe the Office of the Chief 11 Coroner should take the lead; I do see a number of 12 potential problems with it, but as you're aware, we have 13 come up with some very innovative go-forward solutions 14 with problems in the past and the way they've been 15 developed is because those with different interests have 16 got together and came up with the best solution. 17 MR. JAMES LOCKYER: And I'm raising it, 18 sir, because I am sort of bypassing the Forensic Advisory 19 Board and hoping perhaps the Commissioner will recommend 20 it, and obviously if he does, then you would follow the 21 course. 22 DR. BARRY MCLELLAN: Well, as you're 23 aware of my current position, it -- it wouldn't be 24 applicable, but by -- 25 MR. JAMES LOCKYER: I understand. Your
2441 office, is what I mean by that. 2 DR. BARRY MCLELLAN: I -- I would expect 3 that my successor would, you know, move forward in the 4 appropriate fashion. 5 MR. JAMES LOCKYER: Because certainly -- 6 to just finish this and perhaps finish the day -- in 7 Valin's case there was a meeting in your office in your 8 presence where the Crowns and the defence thrashed out a 9 series of agreements as to how the case should proceed 10 once the ministerial review application -- it had already 11 been filed by this time, and it was a case of how the 12 Attorney General's Office was going to respond to it -- 13 and we thrashed out a position where we all agreed on the 14 next series of moves, which ultimately led directly to 15 the joint position taken before the Court of Appeal, I 16 guess less than a year later, right? 17 DR. BARRY MCLELLAN: I -- I recall the 18 meeting. 19 MR. JAMES LOCKYER: Mm-hm. 20 DR. BARRY MCLELLAN: I felt it was a very 21 positive meeting, it was based on the individual 22 circumstances of that particular case at the time and it 23 was felt by all parties participating to be the right 24 thing to be doing at the time. 25 I think if you're looking at a more
2451 general concept of dispute resolution, that that requires 2 a broader discussion. 3 COMMISSIONER STEPHEN GOUDGE: I guess the 4 question I have in my head, Dr. McLellan -- and let me 5 take it away from individual cases, as much as Mr. 6 Lockyer may prefer otherwise -- but after the fact of 7 pathology that comes under scrutiny and question and just 8 dealing with the responsibilities of the Coroner's 9 Office, I hear you to say clearly that you think it would 10 be antithetical to the responsibilities of that office to 11 lead some kind of alternative dispute resolution process 12 aimed at determining an agreed outcome for such a case. 13 But I also hear you say you wouldn't be 14 adverse to at least thinking about your office and the 15 pathology in it participating in that, but I sense that 16 you still feel there are some concerns that you would 17 have? 18 DR. BARRY MCLELLAN: I -- I think it 19 needs to be well thought out because certainly this is 20 not something that a Chief Coroner's office has been 21 involved with in the past. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. BARRY MCLELLAN: It doesn't mean it's 24 not the right thing to do in the future, but, you know, 25 it needs to be something that's very well thought out.
2461 I wouldn't want to be participating in 2 something that would potentially be creating further 3 problems down the road. So I don't want to be sending 4 the message today that I'm dismissing this as not -- 5 COMMISSIONER STEPHEN GOUDGE: Oh, no. 6 No, and you -- 7 DR. BARRY MCLELLAN: -- having any 8 potential benefits. 9 COMMISSIONER STEPHEN GOUDGE: There 10 obviously is -- the Valin case is an ad hoc instance 11 where something like that occurred -- 12 DR. BARRY MCLELLAN: And -- 13 COMMISSIONER STEPHEN GOUDGE: -- as I 14 hear the exchange here. I just am interested in you 15 having been charged with the responsibility for the 16 institution, whether there are institutional concerns 17 about that being available in the future as some kind of 18 outcome in a case where in future pathology was put under 19 question after the fact of its use in the criminal 20 justice system. 21 DR. BARRY MCLELLAN: Absolutely 22 dismissing it, no, and quite frankly, if that was the 23 case, I would not have participated actively and -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. BARRY MCLELLAN: -- directly as I did
2471 in the Valin meeting -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. BARRY MCLELLAN: -- which again, in 4 my opinion, assisted significantly in moving that 5 particular case forward. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 Okay, Mr. Lockyer, it's 4:33. I think that might be a 8 good place to stop. We will pick up tomorrow at 9:30 9 for your hour and a half and then with luck we may be 10 able to conclude by the break tomorrow. Thank you. 11 12 (WITNESSES RETIRE) 13 14 --- Upon Adjourning at 4:33 p.m. 15 16 Certified Correct, 17 18 19 20 ___________________ 21 Rolanda Lokey, Ms. 22 23 24 25