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 16th 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer ) 6 7 Luisa Ritacca ) Office of the Chief Coroner 8 Brian Gover ) for Ontario 9 Teja Rachamalla 10 11 Jane Langford ) Dr. Charles Smith 12 Niels Ortved ) 13 Erica Baron ) 14 Grant Hoole ) 15 16 William Carter ) Hospital for Sick Children 17 Barbara Walker-Renshaw ) 18 Kate Crawford ) 19 Paul Cavalluzzo ) Ontario Crown Attorneys' 20 Association 21 22 Mara Greene ) Criminal Lawyers' 23 Breese Davies ) Association 24 Joseph Di Luca ) 25
31 APPEARANCES (CONT'D) 2 James Lockyer ) William Mullins-Johnson, 3 Alison Craig ) Sherry Sherret-Robinson and 4 Phil Campbell (np) ) seven unnamed persons 5 6 Peter Wardle ) Affected Families Group 7 Julie Kirkpatrick (np) ) 8 Daniel Bernstein ) 9 10 Louis Sokolov ) Association in Defence of 11 Vanora Simpson ) the Wrongly Convicted 12 13 Jackie Esmonde ) Aboriginal Legal Services 14 Kimberly Murray ) of Toronto and Nishnawbe 15 Sheila Cuthbertson ) Aski-Nation 16 Julian Falconer ) 17 18 Suzan Fraser Defence for Children 19 International - Canada 20 21 William Manuel (np) ) Ministry of the Attorney 22 Heather Mackay ) General for Ontario 23 Erin Rizok ) 24 25
41 APPEARANCES (cont'd) 2 3 Natasha Egan ) 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 Discussion 6 4 5 MICHAEL SVEN POLLANEN, Resumed 6 BARRY MCLELLAN, Resumed 7 8 Continued Cross-Examination by Mr. James Lockyer 24 9 Cross-Examination by Mr. Brian Gover 106 10 Re-Examination by Ms. Linda Rothstein 124 11 12 13 Certificate of transcript 127 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:30 a.m. 2 3 COMMISSIONER STEPHEN GOUDGE: Good 4 morning. 5 Mr. Lockyer...? 6 MR. JAMES LOCKYER: Good morning, Mr. 7 Commissioner. Thank you. 8 MR. NIELS ORTVED: Mr. Commissioner...? 9 COMMISSIONER STEPHEN GOUDGE: Yes, Mr. 10 Ortved? Sorry. 11 MR. NIELS ORTVED: I have a matter on 12 which I'd like to address you if I might before Mr. 13 Lockyer... 14 COMMISSIONER STEPHEN GOUDGE: Sure. 15 MR. NIELS ORTVED: So I apologize for 16 interrupting My Friend's cross-examination. I don't -- 17 this is not simply a device to deny him his time, Mr. 18 Commissioner, but there are two (2) issues of concern -- 19 I -- I say of serious concern -- that arise out of Mr. 20 Lockyer's questions yesterday. 21 22 (BRIEF PAUSE) 23 24 MR. NIELS ORTVED: I want to give the 25 background first. And the background concerns the
71 integrity of the review process and similarly the 2 integrity of this process. 3 So what Ms. Rothstein took Dr. McLellan 4 and Dr. Pollanen through for you concerning the review 5 process were the circumstances concerning Ms. Wasser in 6 January of 2006. And simply stated the issue was that 7 Ms. Wasser -- there was a perception of bias. And part 8 of that bias flowed from the fact that she was acting for 9 at least one (1) individual whose conviction was possibly 10 an issue. 11 And the issue was her having declared her 12 position. Did that then taint the process of the review 13 proceedings, and the conclusion on the part of all 14 parties was that it did. 15 And it flowed in part from a letter 16 written by Mr. Porter, to which you were referred. And 17 what Mr. Porter, and I don't have the begdoc for this, 18 but Mr. Centa I know will pull it up in thirty (30) 19 seconds. 20 But what Mr. Porter said in his letter to 21 Dr. McLellan, of January 20, 2006, was in part: 22 "As you are well aware, enormous effort 23 has gone into ensuring the fairness and 24 objectivity of the Inquiry into Dr. 25 Smith's conduct. This is as it must
81 be. The people of Ontario, people 2 whose children have died, people whose 3 lives have been affected by Dr. Smith's 4 opinions, including accused persons, 5 other participants in the justice 6 system and Dr. Smith himself, all 7 deserve an impartial, diligent, and 8 comprehensive inquiry. That applied to 9 the review process --" 10 COMMISSIONER STEPHEN GOUDGE: Sorry? 11 MR. ROBERT CENTA: That document's found 12 at 141671 and Tab S of your binder. 13 COMMISSIONER STEPHEN GOUDGE: Thank you. 14 MR. NIELS ORTVED: And it's page 4, Mr. 15 Registrar. First full paragraph. Page 4, Commissioner. 16 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 17 MR. NIELS ORTVED: First full paragraph. 18 So the sentence I just read was that: 19 "The people of Ontario, people whose 20 children have died, people whose lives 21 have been affected by Dr. Smith's 22 opinions, including the accused 23 persons. Other participants in the 24 justice system and Dr. Smith himself 25 all deserve and impartial, diligent,
91 and comprehensive inquiry. That 2 applied to the review process, it 3 applies to this process." 4 And what Mr. Porter was concerned about as 5 he sets out on page 2, at the top of the second paragraph 6 is that: 7 "My concern basically is that Ms. 8 Wasser has conflicting interests. And 9 more importantly that her public 10 comments have demonstrated apparent 11 bias and personal animus against Dr. 12 Smith whose conduct is the very subject 13 matter of the review. As you are 14 aware, Ms. Wasser is not only a member 15 of the Forensic Services Advisory 16 Committee and the subcommittee dealing 17 with the review with respect to Dr. 18 Smith, but she is also counsel to 19 persons whose lives may have been 20 affected by Dr. Smith's opinions." 21 And Mr. Porter concludes at page 5, last - 22 - penultimate paragraph, first sentence: 23 "Most obviously, if at the end of the 24 day the review is critical of Dr. 25 Smith, then he and his supporters might
101 quite reasonably point to Ms. Wasser's 2 comments and complain that the review 3 process was fatally flawed -- fatally 4 biassed [sorry] from it's very 5 inception." 6 So in consequence of that position being 7 advanced to Dr. McLellan, in my respectful submission, 8 Dr. McLellan did exactly the appropriate thing and it was 9 arranged that Ms. Wasser would step down. 10 So the issue then is was the process 11 tainted? The conclusion was, yes. 12 Should Ms. Wasser be excluded on the basis 13 of conflict? The answer was, yes. 14 The second part of the background I come 15 to Mr. Lockyer. So, Mr. Lockyer replaced Ms. Wasser and 16 in that regard from January of 2006 onward Mr. Lockyer 17 had complete access to all of the information concerning 18 all of these cases. 19 He had personal individual access to each 20 and every member of the Review Panel; you heard that. So 21 when the Review Panel came to -- when the Review Panels, 22 in two (2) separate instances, came to Toronto to 23 consider these cases, as we were told in the evidence, 24 they were addressed by, among others, Mr. Lockyer. 25 So, the question is: Did that taint the
111 process? I come to the first set of questions yesterday; 2 Exhibit number 1. Mr. Lockyer knows from that exercise 3 that the universe of cases that Dr. Smith did for the 4 Chief Coroner's Office in the period in question numbered 5 in the hundreds, and I've suggested to you in excess of a 6 thousand (1,000). Many of those cases were potentially 7 suspicious and Dr. Smith concluded in many of those 8 instances were not suspicious. 9 Out of that universe of cases the Review 10 Committee selected forty-five (45) that they would ask to 11 be reviewed. They were reviewed and of those forty-five 12 (45) -- of that subset of forty-five (45), twenty-five 13 (25) were found to be of no concern, not an issue. That 14 left twenty (20) out of hundreds that needed to be 15 considered as potential problems. 16 Now, Ms. Rothstein, in complete fairness, 17 addressed all of that in examination-in-chief with Dr. 18 Pollanen, so much so that I didn't have to touch it in my 19 questions of Dr. Pollanen. 20 So what happens in Mr. Lockyer's first 21 series of questions? He say -- he takes the position 22 that the issue here concerns twenty (20) cases out of 23 thirty-five (35) cases reviewed, namely an error rate of 24 57 percent. 25 And in my respectful submission to you and
121 to -- and to Mr. Lockyer, that is a complete and -- and 2 irresponsible distortion and it raises the question, I 3 suggest to you, Mr. Commissioner, whether Mr. Lockyer's 4 participation in that review process tainted it, if 5 that's his position today. 6 COMMISSIONER STEPHEN GOUDGE: What are 7 you asking me to do? 8 MR. NIELS ORTVED: I'm going to come to 9 that. 10 COMMISSIONER STEPHEN GOUDGE: I'm 11 curious. 12 MR. NIELS ORTVED: Mr. Lockyer, as we now 13 know, was representing no fewer than nine (9) clients. 14 We knew he was representing some number; we know it's now 15 nine (9). And in my respectful submission, Mr. Lockyer 16 has now put himself in the position of becoming a 17 potential witness concerning the review process. 18 And the corollary is, and I leave this 19 with you whether he has disqualified himself from serving 20 as counsel. 21 That's my first issue. I have a second 22 issue. 23 COMMISSIONER STEPHEN GOUDGE: And is it 24 your argument that because you think he may have put 25 himself in a position to be a witness that he can't act?
131 Is that the bottom line? 2 MR. NIELS ORTVED: I'm not there yet but 3 I'm stating my position now so that it's -- it's no 4 surprise to you and it's no surprise to Mr. Lockyer. 5 COMMISSIONER STEPHEN GOUDGE: What's no 6 surprise? That you may eventually ask that? 7 MR. NIELS ORTVED: That I may advance 8 that. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 MR. NIELS ORTVED: I'm not doing it 11 today. 12 COMMISSIONER STEPHEN GOUDGE: Okay. And 13 your second? 14 MR. NIELS ORTVED: My second issue, and I 15 take the position this is of actually more concern, in -- 16 in your terms -- in the terms of reference that set the 17 parameters of this Inquiry, Item Number 5: 18 "In fulfilling its mandate the 19 Commission shall not report on any 20 individual cases that are, have been, 21 or may be subject to a criminal 22 investigation or proceeding." 23 That includes all nine (9) cases in 24 respect of which Mr. Lockyer acts. 25 Number 6:
141 "The Commission shall perform its 2 duties without expressing any 3 conclusion or recommendation regarding 4 professional discipline matters 5 involving any person or the civil or 6 criminal liability of any person or 7 organization." 8 So this is no news to you, Mr. 9 Commissioner. You made it clear in your opening remarks 10 that this was not an -- an error -- correction -- 11 exercise. And specifically you said on June 18th of 200: 12 "The Commission will not report on 13 individual cases. I wish to underline 14 that this Commission does not have the 15 jurisdiction to consider whether or not 16 any criminal conviction should be 17 considered a miscarriage of justice." 18 So I come to Mr. Lockyer's second series 19 of questions which were in their entirety about one (1) 20 of his cases, the Gaurov case, and putting to Dr. 21 McLellan whether or not there should be an effort on the 22 part of the Coroner's Office to assist in the correction 23 of what he says was an erroneous conviction. 24 And in my respectful submission, that 25 series of questions is contemptuous of the strictures
151 imposed on this Commission. I say it is -- they were at 2 least disrespectful of your admonition to all of us as to 3 what this Commission would do and what it would not do. 4 And I take the position that they were wrong and at a 5 minimum Mr. Lockyer should be curtailed in this. 6 And I say this because we've had a whole 7 week of testimony here and as far as I am concerned 8 everyone else has played by the rules, your rules, as to 9 what is and is not within your mandate. And in my 10 respectful submission, there shouldn't be one (1) set of 11 rules for all of us and another set of rules for Mr. 12 Lockyer. 13 So I am asking you, in relation to Mr. 14 Lockyer, to admonish him to stay within what is within 15 the terms of reference and what is not. Thank you. 16 COMMISSIONER STEPHEN GOUDGE: Mr. 17 Lockyer...? 18 MR. JAMES LOCKYER: Thank you, Mr. 19 Commissioner. I'm sorry, I didn't know this was coming. 20 My Friend hadn't -- 21 COMMISSIONER STEPHEN GOUDGE: Nor did I. 22 MR. JAMES LOCKYER: -- advised me, so I'm 23 a little taken by surprise. In fact, a lot taken by 24 surprise by the whole thing, so if my response is a bit 25 garbled and a little brief, I hope you understand that.
161 COMMISSIONER STEPHEN GOUDGE: Yes, focus 2 on the second because the first is really -- Mr. Ortved's 3 simply tabling a position that -- 4 MR. JAMES LOCKYER: Fair enough. Could I 5 just -- a couple of -- of factual errors My Friend made. 6 First of all, Ms. Wasser did not -- had 7 not ever and has not ever represented anyone convicted as 8 a result of Dr. Smith's evidence; that just hasn't -- 9 that's never been the case. And as far as I'm concerned, 10 and I'm -- was a bit reluctant to get into myself, but as 11 far as I'm concerned, at the time that the Committee was 12 meeting, I did, indeed, represent three (3) individuals 13 not nine (9), as My Friend had suggested in his 14 submissions. And that was declared -- and I think you've 15 heard evidence about that -- that I took no part in any 16 consideration of those three (3) cases. 17 Now, as I stand before you, obviously I 18 represent the nine (9) individuals that you granted 19 standing to. I also represent a tenth person who I have 20 not sought standing for, so, in fact, at the present, I 21 actually represent ten (10). 22 So I just thought I'd clear up those -- 23 those facts. 24 To -- to deal with the -- the latter point 25 then, that Mr. Ortved's made, I was not -- I -- I would
171 have thought it was pretty clear -- I was not trying to 2 have Gaurov's father declared innocent or declared 3 wrongly convicted by you, Mr. Commissioner. 4 I was using his case an example, like 5 others have been doing in the course of their questioning 6 as well, symptomatic and representative of all the 7 individuals for whom I have standing and, in effect, 8 seeking -- and I think I made this abundantly clear 9 yesterday -- seeking from you a systemic recommendation 10 that in order to resolve these cases, whether they are 11 wrongly convicted or not -- either way -- then it would 12 be helpful if a more pro-active position was taken by the 13 Chief Coroner's Office and, arguably, as well by Dr. 14 Pollanen as the Chief Forensic Pathologist. 15 That's a -- a very -- very much a systemic 16 suggestion, because one of the obvious problems that 17 arises out of the review conducted into Dr. Smith's work 18 is that we now have a whole series of cases that do have 19 to be addressed by the criminal justice system. And if 20 you, Mr. Commissioner, are able to assist in making 21 systemic recommendations -- systemic in the sense of 22 recommending processes that can be engaged and employed 23 by individuals and by offices in an attempt to resolve 24 the cases in which ever direction they need to be 25 resolved in the future -- then that is surely a -- a part
181 of your work and very much a part of fulfilling your 2 obligations under your terms of reference, which include 3 making -- and I quote: 4 "To make recommendations to restore and 5 enhance public confidence in pediatric 6 forensic pathology in Ontario." 7 The public will not, I would think, have - 8 - or have that confidence restored in their minds into 9 pediatric forensic pathology in Ontario, so long as there 10 are a series of outstanding cases where individuals may 11 or may not have been convicted of crimes that never 12 happened. 13 And if you, Mr. Commissioner, can speed up 14 that process, make recommendations that may help speed up 15 that process, then you are surely fulfilling your role in 16 restoring and enhancing public confidence in the 17 pediatric forensic pathology profession in this Province. 18 It is not -- and I stress again -- it is 19 not asking you to say that Gaurov's father was wrongly 20 convicted. Not at all. It's for you to say a way of 21 resolving the case of Gaurov's father may be to get all 22 the -- all the concerned parties into the same room, so 23 to speak, to thrash out the issues of the case to see if 24 everyone can come to an acceptable resolution of that 25 case, and of the other cases, just using Gaurov's
191 father's case as representative of the other cases that 2 still have to be resolved in the future. 3 Those are my submissions. 4 COMMISSIONER STEPHEN GOUDGE: Thank you. 5 Ms. Rothstein...? 6 MS. LINDA ROTHSTEIN: Thank you very much 7 Commissioner. Commissioner, these are still early days 8 in our proceedings and perhaps we will have to spend a 9 little bit of time trying to assist all the parties in 10 identifying what the fair way of proceeding is and what 11 the appropriate ground rules are to raise issues and 12 concerns. 13 In my submission to you, sir, you ought to 14 urge all counsel to raise objections in a timely way. If 15 a counsel is asking questions that another counsel 16 believes are inappropriate for any reason, I urge you to 17 urge all counsel to raise that issue with you 18 immediately, as opposed to sometime thereafter. 19 Secondly, Commissioner, I urge you to urge 20 all counsel to advise Commission Counsel if they wish to 21 raise an issue with you of some complexity before the 22 outset of your proceedings or at some juncture where that 23 desire to raise an issue has not been properly identified 24 in your schedule. 25 With respect to the precise issues that
201 Mr. Ortved has raised, I have two (2) submissions, sir. 2 To the extent that he suggests that the extent of Mr. 3 Lockyer's participation in the Review Panel taints the 4 process, I say to you that indeed that will be something 5 for you to consider when you come to write your report. 6 Indeed it will be for you to consider 7 whether Mr. Lockyer's participation or the participation 8 of any other person in that panel in any way undermines 9 the work that that panel finally produced. But in our 10 submission, Commissioner, it would premature for you to 11 reach any conclusions about that issue at this stage; 12 that is something for your final report. 13 On the issue of jurisdiction, which Mr. 14 Lockyer -- or excuse me, Mr. Ortved has also put forward 15 as a reason to be concerned about the questions which Mr. 16 Lockyer addressed to the witnesses yesterday evening, we 17 say this: 18 I trust you will remember, Commissioner, 19 that I, too, stood at a very -- for a moment, anyway, to 20 ensure that Mr. Lockyer's questions were not asking these 21 witness -- these witnesses to opine on whether or not 22 there had indeed been miscarriages of justice in this 23 case, because in your Commission counsel's view, that 24 would indeed go outside your mandate as set out in the 25 terms of reference, and it would be unfortunate if even
211 the way the questions had been put led to the 2 misapprehension that that was what this Commission was 3 proposing to do. 4 Having said that, as Mr. Lockyer has said, 5 we acknowledge that there is a systemic issue, or at 6 least a potential one, that is more specific than -- or 7 rather that goes beyond the suggestion that there have 8 been miscarriages of justice in this case, and is about 9 whether or not there is a process in place of on -- in 10 Ontario that deals with how potential miscarriages of 11 justice should be addressed and by whom. 12 And to that extent we agree with Mr. 13 Lockyer that questions of that nature and kind are 14 appropriate. With respect to Mr. Ortved's suggestion 15 that Mr. Lockyer may have to be a witness, I remind all 16 counsel that our rules provide that it is ultimately up 17 to Commission Counsel to make that decision in the first 18 instance, subject to a motion to you. 19 So again, I hear Mr. Ortved to be telling 20 all of us that he may be urging Commission Counsel at 21 some stage to call Mr. Lockyer and I hear him to be 22 putting us all on notice to that effect. 23 But in my submission, Commissioner, you 24 are not being asked to rule about Mr. Lockyer's continued 25 participation in these proceedings at this time and in my
221 submission you ought not to. Thank you. 2 COMMISSIONER STEPHEN GOUDGE: I thank all 3 three (3) of you. Let me simply respond this way -- I 4 will do it now because I feel able to do it now -- I want 5 to say three (3) things in response, Mr. Ortved, to your 6 proposals. 7 First, I think there's much merit in what 8 Commission Counsel says about those who object to lines 9 of questioning; it will assist the process enormously if 10 those objections are raised in a timely fashion. If 11 there's to be something more substantive than that, as we 12 go forward I will ask all counsel to make arrangements 13 with Commission Counsel for those sorts of arguments to 14 be raised on notice and at appropriate times. 15 So if counsel want to object to questions, 16 please do so at the time. If there are arguments that 17 are more substantive, than this question should not be 18 asked, I will hear those motions at a time to be arranged 19 by Commission Counsel after parties have notice. So 20 that's the process point. 21 Mr. Ortved has fairly put on the record 22 his position about Mr. Lockyer's participation in the 23 review process. He has not asked that the Commission do 24 anything. I propose to do nothing unless and until a 25 request is made and then I will consider it, given the
231 circumstances that exist at that time. 2 As to the one (1) request that Mr. Ortved 3 does make of me, that I ask then Mr. Lockyer to stay 4 within the terms of reference, let me simply say three 5 (3) things. 6 First of all, I more than anyone am 7 conscious of the terms of reference of this Inquiry. I 8 dare say I have read them a multiple, more than anyone in 9 the room and I intend to abide by them to the letter. 10 Secondly, I confess I can understand how 11 one (1) or two (2) questions that were asked yesterday of 12 witnesses, inviting opinions as to whether there were 13 instances in particular cases of wrongful convictions 14 could raise the kind of apprehension that Mr. Ortved 15 perceived. Dr. Pollanen answered them firmly and 16 professionally. And when they were repeated, I answered 17 for both Dr. McLellan and Dr. Pollanen with the answers 18 they themselves had given. 19 The third thing is there is, I think, a 20 systemic question that is relevant to this area. If our 21 systemic issues list is looked at there is a concern on 22 that list of corrective measures; that is, what should 23 the role of the coroner and the Office of the Chief 24 Coroner of Ontario be after the fact of inadequate 25 pediatric forensic pathology in the future.
241 So far as we can learn from the past about 2 what has or has not happened, and build better answers to 3 that question in the future, I think that is within my 4 mandate. So I propose Mr. Ortved not to do anything more 5 then to say to all of you, including Mr. Lockyer, as we 6 go forward, I trust that you will pay careful attention 7 to the terms of reference and observe them. Thank you. 8 Mr. Lockyer...? 9 MR. JAMES LOCKYER: Do I lose a half an 10 hour there? I haven't asked a question yet. 11 COMMISSIONER STEPHEN GOUDGE: We'll give 12 you the whole hour and a half if you use it within the 13 terms of reference, how's that? 14 MR. JAMES LOCKYER: That's -- I'll drink 15 to that, yes. 16 17 MICHAEL SVEN POLLANEN, Resumed 18 BARRY MCLELLAN, Resumed 19 20 CONTINUED CROSS-EXAMINATION BY MR. JAMES LOCKYER: 21 MR. JAMES LOCKYER: Gentlemen, I just 22 wanted to start today with something sort of carrying on 23 from -- from yesterday. 24 25 (BRIEF PAUSE)
251 MR. JAMES LOCKYER: I just want to, yes, 2 pursue something that you'd said yesterday, Dr. Pollanen, 3 that I've been thinking about overnight. 4 You expressed a -- a concern yesterday 5 when I was suggesting, or perhaps inferring that your 6 office, that of Forensic Chief Pathologist, and Dr. 7 McClellan's office, that is the Chief Coroner's Office, 8 might play a more pro-active role in the cases that still 9 need to be resolved in one way or another. And you 10 expressed a concern that if you were to do that you might 11 be seen to lose your objectivity. 12 Do you remember saying that, sir? 13 DR. MICHAEL POLLANEN: Well I -- I 14 believe I said it was not the job of the forensic 15 pathologist to be an advocate. 16 MR. JAMES LOCKYER: I think you also did 17 put it in terms of losing your objectivity, which is the 18 same thing in essence? 19 DR. MICHAEL POLLANEN: Well, I would put 20 it as follows, that the -- that the forensic pathologist 21 has a role in the criminal justice system, broadly 22 defined, including death investigation, trial processes, 23 and post-conviction processes to provide the criminal 24 justice system with the best expert information that they 25 can.
261 And that's dependent on a number of 2 variables. But the role of the forensic pathologist is 3 that of a witness. And in my view that is the best way 4 the forensic pathologist can interact with the system. 5 MR. JAMES LOCKYER: If the system 6 though, whatever that might mean, requests further 7 involvement on your part by way of assistance in 8 resolving these outstanding cases, presumably your -- 9 you'll agree to help insofar as you can? 10 DR. MICHAEL POLLANEN: Certainly. If 11 there are processes in place -- 12 MR. JAMES LOCKYER: Mm-hm. 13 DR. MICHAEL POLLANEN: -- where the 14 resources of the forensic pathology service in Ontario 15 can be accessed and contribute to the process, certainly. 16 MR. JAMES LOCKYER: All right. And if -- 17 if I now move into the next area that I wanted to at 18 least raise early on in the course of this Inquiry -- and 19 again, I'm going to address you for a bit more, Dr. 20 Pollanen -- first of all problems in pathology are not 21 exclusive obviously to paediatric pathology. 22 Am I right? 23 DR. MICHAEL POLLANEN: There are pitfalls 24 in forensic pathology -- 25 MR. JAMES LOCKYER: Mm-hm.
271 DR. MICHAEL POLLANEN: -- that are not 2 solely linked to -- to the younger part of the age 3 spectrum. 4 MR. JAMES LOCKYER: And in fact there's 5 already -- just thinking back into recent years -- 6 there's two (2) cases in the eastern provinces which I 7 think you're aware of in which pathology appeared to play 8 a substantial role in a wrongful conviction in the cases 9 of Clayton Johnson and Ronald Dalton. 10 You're familiar with those cases? 11 DR. MICHAEL POLLANEN: I'm -- I'm 12 generally familiar with those cases. 13 MR. JAMES LOCKYER: One (1) -- the first 14 being in Nova Scotia and the second being the subject of 15 an inquiry in Newfoundland? The -- 16 DR. MICHAEL POLLANEN: Yes. 17 MR. JAMES LOCKYER: -- Ronald Dalton 18 case. 19 And in those cases the issue was, was 20 there a homicide or not. 21 DR. MICHAEL POLLANEN: I believe that's 22 one (1) of the issues, yes. 23 MR. JAMES LOCKYER: It -- it was really 24 the sole issue, was it not? 25 DR. MICHAEL POLLANEN: Again, I'd have to
281 read the cases -- 2 MR. JAMES LOCKYER: Okay. 3 DR. MICHAEL POLLANEN: -- to be sure. 4 MR. JAMES LOCKYER: It was: Did Clayton 5 Johnson's wife die from a fall down the stairs, natural 6 causes so to speak -- an accident, if you like -- or 7 did -- 8 DR. MICHAEL POLLANEN: Yeah, quite 9 different -- natural from an accident. 10 MR. JAMES LOCKYER: Okay, accident. Did 11 Ronald Dalton's wife die as a result of choking while 12 eating cereal or was she murdered? Those were the -- the 13 -- to -- to synopsize the cases, those were the issues. 14 DR. MICHAEL POLLANEN: Those would be 15 very brief summaries, yes. 16 MR. JAMES LOCKYER: Yes. And problems in 17 paediatric pathology and its potential to create 18 miscarriages of justice are certainly not exclusive, as 19 we've already heard, to Ontario? There have been 20 certainly problems in the United Kingdom that we've heard 21 about? 22 DR. MICHAEL POLLANEN: Very well 23 documented cases -- 24 MR. JAMES LOCKYER: Yes? 25 DR. MICHAEL POLLANEN: -- in the UK.
291 MR. JAMES LOCKYER: Where paediatric 2 pathology has led directly to a number of miscarriages of 3 justice in that jurisdiction? 4 DR. MICHAEL POLLANEN: One might quibble 5 with the word, "directly." It was -- the medical 6 evidence was pivotal in providing criminal justice system 7 with information that was factored by the Trier of Fact 8 into resulting in conviction. 9 MR. JAMES LOCKYER: And in the United 10 States there has certainly been some cases and there are 11 many outstanding where these problems have been found to 12 exist and may exist as well? 13 DR. MICHAEL POLLANEN: Yes. 14 MR. JAMES LOCKYER: Now, you heard me 15 just a few minutes ago take the Commissioner to his terms 16 of reference which include to restore and enhance public 17 confidence in pediatric forensic pathology in Ontario. 18 And -- and you recognize then that that 19 public confidence is not just a public confidence that 20 needs to be restored in the cases that Dr. Smith may have 21 reviewed but in paediatric for -- excuse me, forensic 22 pathology right across the province? 23 DR. MICHAEL POLLANEN: That's my 24 understanding of the terms of reference. 25 MR. JAMES LOCKYER: And the pediatric
301 autopsies that have -- paediatric forensic autopsies that 2 have been done over the years haven't just been done by 3 Dr. Smith -- 4 DR. MICHAEL POLLANEN: No. 5 MR. JAMES LOCKYER: -- in Ontario? 6 They've been done by other pediatric pathologists within 7 the Hospital for Sick Children? 8 DR. MICHAEL POLLANEN: Yes. 9 MR. JAMES LOCKYER: They've been done by 10 other pediatric pathologists from outside the Hospital 11 for Sick Children? 12 DR. MICHAEL POLLANEN: Yes. 13 MR. JAMES LOCKYER: And they've been done 14 by pathologists, what we might call loosely "forensic 15 pathologists" elsewhere in the province as well? 16 DR. MICHAEL POLLANEN: By a pathologist 17 and forensic pathologist, yes. 18 MR. JAMES LOCKYER: Yes. And just to 19 take a very simply example: the pathologist in Valin's 20 case was a pathologist -- forensic pathologist -- I'm not 21 sure which you'd call him -- and certainly had never 22 purported to be a paediatric pathologist. 23 Is that right? 24 DR. MICHAEL POLLANEN: Correct. 25 MR. JAMES LOCKYER: Okay. And all of
311 those individuals whether Dr. Smith or other pediatric 2 pathologists at the HSC, or other pediatric pathologists 3 in Ontario, or other forensic pathologists who have done 4 pediatric cases were -- for many years have been all 5 operating under a "think dirty" regime? 6 DR. MICHAEL POLLANEN: Well, "regime" 7 might be a slightly inflammatory word. I would say that 8 there are some guidelines that we've discussed, during 9 the course of evidence, where the "think dirty" issue was 10 tabled in the context of keeping a high index of 11 suspicion for child abuse cases. 12 MR. JAMES LOCKYER: And one could well 13 say that perhaps in Valin's case, Dr. Rasaiah was 14 operating under a "think dirty" way of thinking? 15 DR. MICHAEL POLLANEN: I don't know what 16 Dr. Rasaiah was thinking. 17 MR. JAMES LOCKYER: And that in itself 18 raises the issue of if we're going to restore public 19 confidence in pediatric forensic pathology, we've got to 20 look a lot broader then just Dr. Smith's cases. 21 Do you agree with that? 22 DR. MICHAEL POLLANEN: I would agree, 23 yes. 24 MR. JAMES LOCKYER: Mm-hm. If we go back 25 to your January 8th memo to Dr. McLellan, sir -- it's
321 032588 -- and go to page 14 of that memo that you wrote 2 on January 8th. And just to give it a time frame, that's 3 essent -- that is after all of the cases have been 4 reviewed in December, a month or so earlier. 5 MS. LINDA ROTHSTEIN: Tab 106, sorry, 6 Mr. Lockyer. 7 8 CONTINUED BY MR. JAMES LOCKYER: 9 MR. JAMES LOCKYER: That's right. 10 They've all been reviewed now by the external reviewers 11 in the first -- 12 COMMISSIONER STEPHEN GOUDGE: It's 13 actually 108. 14 MS. LINDA ROTHSTEIN: Sorry. 15 COMMISSIONER STEPHEN GOUDGE: I've got it 16 memorized. 17 MS. LINDA ROTHSTEIN: Thank you, sir. 18 19 CONTINUED BY MR. JAMES LOCKYER: 20 MR. JAMES LOCKYER: -- in the first week 21 or two (2) of December, and you're now doing a memo which 22 has -- in which you have in your mind the results that 23 they have -- or the conclusions that they have come to in 24 the various individual cases that they've reviewed, 25 correct?
331 DR. MICHAEL POLLANEN: Yes. 2 MR. JAMES LOCKYER: I just want to get 3 the context in which you write this. 4 And in paragraph 74, sir, you sort of, at 5 least, seem to elude to the point I'm sort of moving into 6 now: 7 "A search of the coroner's information 8 system database indicates that in the 9 interval between 1986 and 2000, there 10 were more then fifty (50) cases of 11 infant or childhood head injuries that 12 have been coded as homicide. It is 13 uncertain how many of these cases 14 resulted in convictions." 15 And you say that under the heading, 16 "Issues Arising From Smith Review," right? 17 DR. MICHAEL POLLANEN: Yes. 18 MR. JAMES LOCKYER: So really -- I think 19 I'd be right in saying that you and I are on the same 20 page in -- in this regard, is that one (1) of the issues 21 that arises from the Smith Review is what about all the 22 other pediatric cases across the Province that have 23 resulted in that period, in -- at least potentially 24 resulted in convictions -- insofar as they were coded as 25 homicide, above and beyond the ones in which Dr. Smith
341 was involved? 2 DR. MICHAEL POLLANEN: I think I was 3 trying to capture something slightly different, and that 4 was in the context of the controversy surrounding infant 5 head injury; I was drawing attention to that subset of 6 case -- 7 MR. JAMES LOCKYER: Fair. 8 DR. MICHAEL POLLANEN: -- rather than a 9 larger group. 10 MR. JAMES LOCKYER: That's true. I 11 hadn't picked up on head injuries. So, in fact, if we 12 took out the word "head", so to speak, of seventy-four 13 (74), there will be far more, potentially -- 14 significantly more -- then fifty (50) cases of infant or 15 childhood injuries that have been coded as homicide. 16 Would that be right? 17 DR. MICHAEL POLLANEN: Certainly that 18 would be a fact. There would be more -- 19 MR. JAMES LOCKYER: There would be more 20 then fifty (50)? 21 DR. MICHAEL POLLANEN: -- more cases that 22 would involve injuries that were greater then the head. 23 MR. JAMES LOCKYER: I hadn't realized 24 that. Okay. If we then move on -- 25 COMMISSIONER STEPHEN GOUDGE: Can I just
351 ask a question, Mr. Lockyer? 2 MR. JAMES LOCKYER: Sure. 3 COMMISSIONER STEPHEN GOUDGE: In terms of 4 this coding you refer to in the paragraph, Dr. Pollanen, 5 that's coding done at what stage; after autopsy, after 6 coroner's report classifying the death in one (1) of the 7 five (5) categories? 8 DR. MICHAEL POLLANEN: Yes, it's based 9 upon the coroner's classification. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: If you move on to the 14 next page of the same document, sir, and look at Item 81 15 on that page -- if that could be highlighted -- you then 16 say, in 81 -- that's 80. You then say: 17 "I do not present the above issues..." 18 And this is a continuation under the same 19 heading of Issues arising from Smith Review. 20 "I do not present the above issues to 21 be provocative. I raise these points 22 because Dr. Smith was only one (1) part 23 of a death investigation system, and it 24 seems that one (1) individual rather 25 then the system has been publically
361 recognized as requiring review. I'm 2 not sure that view is now sustainable 3 and it could be misleading to focus too 4 much attention on one (1) person who's 5 responsible for the quality of his 6 work, not the overall death 7 investigation, rather then on system- 8 wide quality and accountability." 9 There, interpreting what you're saying, 10 sir, you're actually moving out of just the head injury 11 cases, and you're moving more generally into all 12 pediatric cases rather in the manner that I'm trying to 13 present them to you in this questioning. 14 Is that right? 15 DR. MICHAEL POLLANEN: I -- that was not 16 my intent, no. My intent in that paragraph was to try 17 and bring to the forefront the issue that Dr. Smith was 18 working as part of our team and, in those cases where 19 there were issues raised by the panel, that it would seem 20 to be reasonable to then look at the greater death 21 investigation process and input of information, for 22 example, from other team members, to determine whether or 23 not there were contributory or additional observations 24 that might be relevant to our understanding of the 25 issues.
371 And, you could think of it like this. The 2 Smith Review, as we've been discussing it, told us what - 3 - what happened in terms of how many cases and -- and 4 what the issues were, but it didn't tell us why. And the 5 "why" comes from a broader analysis. 6 It's not sufficient to simply say, Well, 7 this skull fracture was mis-diagnosed. That provides us 8 with certain types of information regarding how people 9 make diagnoses, how people communicate diagnoses, how 10 those are in -- those diagnoses are interpreted by the 11 system, but it does not inform us as to why any of those 12 things occurred. 13 MR. JAMES LOCKYER: But if you look at 14 the "what", Dr. Pollanen, the "what" resulted, so to 15 speak, from the death investigation process, as it was, 16 in individual cases. The "what" is how many other 17 miscarriages of justice outside anything -- any cases 18 that Dr. Smith was involved in, might have occurred 19 within that system which appears to have some significant 20 faults. 21 And what I'm really suggesting to you, Dr. 22 Pollanen, is that if we're going to really restore public 23 confidence in pediatric forensic pathology, the first 24 thing -- or certainly, one of the things that we must 25 do, is try and ensure that any miscarriages of justice
381 that may have occurred, whether Dr. Smith was involved in 2 them or not, in a pediatric forensic context, must be 3 found and sorted out as soon as possible. 4 DR. MICHAEL POLLANEN: Mr. Lockyer, I -- 5 essentially, I just find this a variant of our discussion 6 yesterday, where we're talking about issues of 7 miscarriage of justice. 8 The forensic pathologist has a role to 9 play in the system that is circumscribed. We do not 10 contemplate issues of miscarriage of justice. 11 MR. JAMES LOCKYER: All right, well, let 12 me -- 13 DR. MICHAEL POLLANEN: They're not part 14 of the post-conviction relief process. 15 MR. JAMES LOCKYER: Perhaps I'll go to 16 Dr. McClellan then, because Dr. McClellan is, if you 17 like, the -- the -- more the systemic person of the -- of 18 the two (2) of you in, in that he holds -- or held -- the 19 Office of Chief Coroner. 20 And, so, Dr. McClellan, would you agree, 21 sir, that in the circumstances that have been identified 22 already in this Inquiry, where forensic -- pediatric 23 forensic pathology was operating under a guideline -- a 24 diktat -- whatever you want to call it -- let's call it a 25 guideline; a nice soft word -- of thinking dirty by the
391 direction of your predecessor, do you believe, sir, that 2 it's now the responsibility of your office to, in some 3 way, review and ensure that there have been no further 4 miscarriages of justice? 5 COMMISSIONER STEPHEN GOUDGE: Can we use 6 the word "bad pathology"? 7 MR. JAMES LOCKYER: Did I use that word 8 or -- 9 COMMISSIONER STEPHEN GOUDGE: No. Can 10 you use that word? 11 MR. JAMES LOCKYER: As opposed to...? 12 COMMISSIONER STEPHEN GOUDGE: I mean, 13 you're going to get the same answer from Dr. McLellan you 14 got yesterday -- 15 MR. JAMES LOCKYER: And -- and -- 16 COMMISSIONER STEPHEN GOUDGE: -- which 17 is, It's not my business to talk about wrongful 18 convictions. 19 MR. JAMES LOCKYER: Well -- 20 COMMISSIONER STEPHEN GOUDGE: There are 21 processes for past cases of wrongful convictions, Mr. 22 Lockyer. What you're interested in, surely, is what 23 happens with other cases where they may have been 24 pathology that, with hindsight, appears to be erroneous. 25 MR. JAMES LOCKYER: Well, Mr.
401 Commissioner, the Office of the Chief Coroner, because of 2 concerns about Dr. Smith, of its own initiative, 3 undertook the review that it did, and I'm now suggesting 4 to the Office of the Chief Coroner that, on its own 5 initiative or with your guidance, it might do the same at 6 a broader level and go beyond Dr. Smith's cases. 7 And I don't understand how the office on 8 the one hand can feel it's appropriate to conduct a 9 review of Dr. Smith's cases, but not appropriate to 10 conduct a review of other cases. 11 COMMISSIONER STEPHEN GOUDGE: Why don't 12 you ask the question that way? Sorry. 13 MS. LINDA ROTHSTEIN: Commissioner, with 14 respect to Mr. Lockyer, he was away for my examination 15 and, no doubt, hasn't had a chance to read the entire 16 transcript, but you will recall, sir, that when we came 17 to paragraph 74 of that same memo I highlighted for you 18 that Dr. Pollanen, indeed, will be talking -- or 19 providing further evidence about the SBS cases, in 20 particular, when he returns to the witness box under Mr. 21 -- or in a -- in a week or so, probably two (2) weeks. 22 And sec -- the second point I make, 23 Commissioner, is that I'm not really sure that Dr. McLell 24 -- Dr. McClellan, who no longer can speak for the office, 25 should be put in the position of having to answer such a
411 question. 2 MR. JAMES LOCKYER: I'm not so sure he's 3 not in a perfect position; it's sort of easier to comment 4 on what you might do now you've left the position than 5 when you're in it. 6 COMMISSIONER STEPHEN GOUDGE: Well, I'm 7 content if you ask the question, Mr. Lockyer, should a 8 similar review be done of the OCCO files, other than the 9 ones done by Dr. Smith. 10 I mean that's really what you're 11 interested in. 12 MR. JAMES LOCKYER: It is, yeah. 13 COMMISSIONER STEPHEN GOUDGE: I mean, I 14 think that Ms. Rothstein's right; we heard that answer 15 before. But to get on with it, why don't you address 16 that, Dr. McClellan? 17 18 CONTINUED BY MR. JAMES LOCKYER: 19 MR. JAMES LOCKYER: No, I'm -- I'm well 20 outside head injuries; I mean, all pediatric cases of -- 21 so has consi -- has consideration been given to a broader 22 provincial review, sir, by your office? 23 DR. BARRY MCCLELLAN: Not that I am aware 24 of. Certainly, prior to leaving the office September 25 17th, I had not made any decision for there to be any
421 further review. Now, I can say that Dr. Pollanen and I 2 have addressed the specific issue of Shaken Baby, as Mr. 3 Rothstein just mentioned. 4 My own feeling on this, Mr. Lockyer, is 5 that post conviction review is a very complicated matter, 6 in general. To go back to look into specific cases, such 7 as what was done with the Smith Review, is a process that 8 I know of no other chief coroner's office ever 9 undertaking; it may have been done to this extent, I have 10 not been able to find any evidence of it. 11 That doesn't mean that it should not be 12 done, but it is very resource intensive. It's very 13 complicated to do and my own feeling is that the efforts 14 right now should be spent on improving the quality of 15 current and future investigations; a number of steps have 16 already been taken. I believe that there will be future 17 opportunities to improve quality, as well. 18 And my own feeling is that going back and 19 looking at cases, especially which have involved the 20 administration of justice in court proceedings, is a 21 process where the lead should come from the Ministry of 22 the Attorney General, not the Coroner's Office. That 23 does not mean that the Coroner's Office should not 24 participate, but that the lead should not come from the 25 Coroner's Office.
431 MR. JAMES LOCKYER: Or -- I -- you -- I 2 think we did this yesterday, or the Commissioner? 3 DR. BARRY MCLELLAN: Well, certainly 4 whatever recommendations are made should be, you know, 5 paid close attention to by -- by all who are in a 6 position to -- to implement them, Mr. Lockyer. 7 MR. JAMES LOCKYER: And Dr. Pollanen, I 8 want to come back to you now on this because -- and I 9 appreciate we're at the beginning of the Inquiry -- I 10 don't want to get into this in detail, but I think it's 11 as good a time as any to -- to raise it now -- and that 12 is, you have some familiarity, and I -- I appreciate it 13 won't be a whole lot of familiarity -- but certainly 14 through knowing Dr. Crane, Dr. Whitwell, and Dr. Milroy 15 as well as you do, through them you have acquired some 16 familiarity with the British system for dealing with 17 miscarriages of justice. 18 Is that right, sir? 19 DR. MICHAEL POLLANEN: Through my 20 interactions with them -- 21 MR. JAMES LOCKYER: Yes. 22 DR. MICHAEL POLLANEN: -- but also 23 through reading, yes. 24 MR. JAMES LOCKYER: Yes. Indeed. And in 25 particular, sir, you have some familiarity with the
441 process that has been set up there since 1997, the 2 Criminal Cases Review Commission. 3 Is that right? 4 DR. MICHAEL POLLANEN: Yes. 5 MR. JAMES LOCKYER: And the Criminal 6 Cases Review Commission, I don't know if you're able to - 7 - to adopt this, but it's conducted -- it's a -- it's a 8 body independent of government, which conducts reviews of 9 individual cases on what we call as lawyers, an 10 inquisitorial basis. 11 Are you aware of that, sir? 12 DR. MICHAEL POLLANEN: Yes. 13 MR. JAMES LOCKYER: In other words, they 14 sort of take on the role of investigators as well as 15 adjudicators of individual applications? 16 DR. MICHAEL POLLANEN: After the criminal 17 conviction process, yes. 18 MR. JAMES LOCKYER: Yes. It's a post- 19 conviction review process, in other words? 20 DR. MICHAEL POLLANEN: Yes. 21 MR. JAMES LOCKYER: And Dr. Crane -- I 22 know we're going to hear from him next week, and 23 certainly I hope to flush more -- others may too, flush 24 more out of him about it -- but Dr. Crane, Dr. Milroy, 25 and Dr. Whitwell have all played a significant role in
451 the development of individual cases that have gone 2 through the CCRC process. 3 Is that right? 4 DR. MICHAEL POLLANEN: I don't have 5 specific knowledge on that. 6 MR. JAMES LOCKYER: All right. 7 DR. MICHAEL POLLANEN: You'd have to ask 8 them. 9 MR. JAMES LOCKYER: Okay. But you're 10 certainly aware that they've had some involvement? 11 DR. MICHAEL POLLANEN: Yes. 12 MR. JAMES LOCKYER: Yes. And would you 13 see any particularly difficulty, sir, from your point of 14 view, or any reason, from your point of view as the Chief 15 Pathologist for the Province, wrestling with the problems 16 of possible miscarriages of justice having arisen as a 17 result of opinions expressed by members of your 18 profession, opinions expressed by members of -- or people 19 who are under the jurisdiction of the office of the Chief 20 Coroner? 21 Would you see the creation of a Criminal 22 Cases Review Commission, in Canada, because it would have 23 to be a Federal matter, as being one (1) potential way of 24 addressing other miscarriages of justice that may or may 25 not be out there?
461 DR. MICHAEL POLLANEN: Well, certainly it 2 would represent an institution -- 3 MR. JAMES LOCKYER: Yes. 4 DR. MICHAEL POLLANEN: That could set up 5 procedures to deal with those issues, and some of those 6 procedures might include tapping into forensic pathology 7 expertise in the provinces. 8 MR. JAMES LOCKYER: So if we go back to 9 some of the questioning I was -- some of the questions I 10 was asking you yesterday, if such a commission was 11 created, sir, you would, at least as far as that 12 commission's dealings were concerned, take the 13 adversarial out of the review because you wouldn't have a 14 counsel on behalf of an aggrieved individual and a 15 counsel on behalf of the Crown investigating and 16 adjudicating on the issue. You'd have an independent 17 body of people which includes experts in your field as 18 adjudicators looking at the individual cases. 19 Is that right? 20 DR. MICHAEL POLLANEN: I'm not very 21 familiar with the precise structure -- 22 MR. JAMES LOCKYER: Yes? 23 DR. MICHAEL POLLANEN: -- but my 24 understanding is that the Criminal Case Review Commission 25 has that general structure.
471 MR. JAMES LOCKYER: Mm-hm. 2 DR. MICHAEL POLLANEN: In other words, it 3 is to essentially make a third party to organize the 4 information, develop expert opinions and then ultimately 5 has the ability to refer the case back to an appellate 6 process. That's my understanding of it. 7 MR. JAMES LOCKYER: Dr. McLellan, I don't 8 know how familiar you are with the process in the UK, but 9 you heard what Dr. Pollanen said, and suspect you have 10 made a point of getting some familiarity with it. 11 Would you welcome the creation of such an 12 institution from the perspective of your office, sir, and 13 the problems that have been encountered in your office in 14 the last few years? Would you welcome the creation of 15 such a commission? 16 DR. BARRY MCLELLAN: I know of the 17 commission. Dr. Pollanen and I, in fact, have discussed 18 this over the past year, so I'm familiar with it. I 19 don't think I know enough about it to say that I would 20 advocate for it, but certainly I would say that if a 21 process was set up, that the expertise and resources of 22 the Office of the Chief Coroner should be used to advance 23 such a process where it would seem to -- to be a benefit. 24 MR. JAMES LOCKYER: No doubt it would. I 25 mean, if you take -- lets -- lets take just for the sake
481 of argument, Gaurov's case again. Gaurov's father would 2 make an application to the Commission. Presumably one of 3 the first things the Commission would likely do would be 4 come to your office and potentially say, Could we ask for 5 Dr. Pollanen's opinion on this case, as a method of 6 assisting us in adjudicating it. And presumably in those 7 circumstances your answer would be, Why not? 8 DR. BARRY MCLELLAN: Well, it would -- 9 again, I can't speak for who would be the chief coroner 10 at the time, but my own opinion is, is that the answer 11 should be "yes". And it fits with what we talked about 12 yesterday afternoon in that that is contributing and 13 assisting with the process, but not taking the lead in 14 the process. 15 MR. JAMES LOCKYER: No problems of 16 tampering with your objectivity in those circumstances? 17 You're not being called upon by one side or the other for 18 an opinion, you're being called upon from an opinion -- 19 for an opinion by an independent body who is seeking your 20 assistance in resolving a case? 21 DR. BARRY MCLELLAN: To assist in a 22 process where the lead is coming from some other 23 organization, correct. 24 MR. JAMES LOCKYER: All right. Let me 25 move on from there in -- into the next issue that I
491 wanted to at least embark upon at this early stage of the 2 Inquiry, and that is the issue of initiating a review 3 through your office or seeking through your office a -- a 4 second opinion. And I want to look at it in two (2) 5 parts. 6 And the first part would be that the early 7 stages of an investigation, someone has died, it's viewed 8 as a suspicious death by -- and I guess I'm addressing 9 you, Dr. Pollanen -- sorry, Dr. McClellan, at least 10 initially -- the autopsy is done and the person is either 11 charged with a homicidal offence or it's anticipated that 12 a person may be charged with a homicidal offence; that 13 person already has counsel and counsel wants his own 14 pathologist to have a chance to view the body before it's 15 buried or cremated in order that he or she can form his 16 or her own opinions. 17 Do you have a process that allows for 18 that, first of all, Dr. McClellan? 19 DR. BARRY MCCLELLAN: We don't have a 20 written protocol. At least there was no protocol in 21 place prior to my leaving on September the 17th, but it 22 is something that we're supportive of in providing access 23 and in fact facilitating a second opinion under such 24 circumstances. 25 MR. JAMES LOCKYER: One -- one of the
501 documents that we provided for the purposes of this -- 2 this questioning of you two (2) was the Royal College of 3 Pathologists Code of Practice from the UK. 4 Is that right? You've seen that? 5 DR. BARRY MCCLELLAN: I have. I have not 6 read the document -- 7 MR. JAMES LOCKYER: Okay. 8 DR. BARRY MCCLELLAN: -- but I saw that 9 it was provided. 10 MR. JAMES LOCKYER: If you -- if you were 11 to look at it -- and I don't really want to take you to 12 it because it's not so much in the interests of time to 13 do that -- but at page 21 of that document there's 14 specific provision for the defence to have access to a 15 body for the purposes of conducting its own -- its own 16 autopsy. 17 Were you aware of that? 18 DR. BARRY MCCLELLAN: Yeah, I have no 19 reason to dispute that. I think if there's going to be a 20 line of questioning, it would be more appropriate to call 21 up the document and -- for me to look at it, but I have 22 no reason to dispute what you're saying. 23 MR. JAMES LOCKYER: All right. Were you 24 aware of that, Dr. Pollanen? 25 DR. MICHAEL POLLANEN: Well, there's a
511 tradition of -- 2 MR. JAMES LOCKYER: Mm-hm. 3 DR. MICHAEL POLLANEN: -- defence 4 autopsies in the UK. 5 MR. JAMES LOCKYER: And you -- I mean I 6 don't mind pulling up the document. I don't know how to 7 identify because it's the Royal College of Pathologist's 8 Code of Practice, which was filed by us as a part of -- 9 COMMISSIONER STEPHEN GOUDGE: Commission 10 counsel may be able to get you one. 11 MR. JAMES LOCKYER: -- this questioning. 12 DR. BARRY MCLELLAN: If it would assist, 13 Mr. Lockyer, if you simply want me to acknowledge that 14 I'm aware of the practice, I can do so. 15 16 CONTINUED BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: All right. 18 DR. BARRY MCLELLAN: My concern is, is 19 that you're outlining a specific part of a document and I 20 really couldn't -- 21 MR. JAMES LOCKYER: Well -- 22 DR. BARRY MCLELLAN: -- comment on the 23 document without it being brought to my attention. 24 MR. JAMES LOCKYER: I -- I think my point 25 is that since it is documented by the Royal College of
521 Pathologists, that might be a way of satisfying you that 2 it may be a good idea if it was documented, as well, by 3 the Chief Coroner's Office so that it was something well 4 known and a procedure well set out for the purposes of 5 Defence Bar. 6 DR. BARRY MCLELLAN: In fact, I think I 7 can answer that without you bringing my attention to 8 that. I believe that such documentation is a good thing. 9 And there's been many practices that have been put into 10 written protocols, memoranda, and I can see an advantage 11 of doing so in this circumstance, as well. 12 MR. JAMES LOCKYER: All right. Because 13 the importance of this, at least looking at it from a 14 defence lawyer's perspective, is every time -- well, not 15 every time, but more often than not, in a criminal trial 16 where there's a -- a pathology dispute and the defence 17 calls a pathologist, you can pretty well be sure that one 18 of the first questions you're going to hear from the 19 Crown in cross-examination of a defence pathologist is, 20 Well, don't you agree that the Crown pathologist has an 21 advantage over you because he saw the body? 22 DR. BARRY MCLELLAN: Right. In fact, one 23 of the memos that is in the coroner's investigation 24 manual now deals with the release of a body following an 25 autopsy on a homicide or criminally suspicious case. And
531 that policy now is that the release should not take place 2 until the pathologist and the Regional Supervising 3 Coroner -- 4 MR. JAMES LOCKYER: Right. 5 DR. BARRY MCCLELLAN: -- have both signed 6 off and agreed the release is appropriate. And one of 7 the reasons for that is to ensure that there's not a 8 concern that's been expressed, perhaps by counsel, for 9 someone who has been charged, where they wish to, in 10 fact, examine the body -- conduct a second autopsy -- 11 before it's released. 12 MR. JAMES LOCKYER: And do you think, 13 sir, it might be helpful to enter into some discussions 14 with representative of the Defence Bar as to how this 15 protocol could be put into effect for maximum use by the 16 defence in the future? 17 DR. BARRY MCCLELLAN: Again, you do 18 recognize I'm no longer the Chief Coroner -- 19 MR. JAMES LOCKYER: I understand that. 20 DR. BARRY MCCLELLAN: -- but my opinion 21 on the matter is that this would be an excellent matter 22 to bring forward to the Forensic Services Advisory 23 Committee. This, in fact, is one of the reasons that the 24 Committee was created, was to deal with such matters. 25 MR. JAMES LOCKYER: All right. And the -
541 - that committee, of course, has representatives of the 2 Defence Bar and AIDWIC on it? 3 DR. BARRY MCCLELLAN: Correct. 4 MR. JAMES LOCKYER: All right. Now -- 5 DR. MICHAEL POLLANEN: If I could just 6 enlarge on that there? 7 MR. JAMES LOCKYER: Yes, of course. 8 Sorry. 9 DR. MICHAEL POLLANEN: I think there are 10 two (2) additional points to make here, and that is that 11 the document that you're referring to is from a 12 professional organization, the Royal College of 13 Pathologists, and, in my view, the Canadian Association 14 of Pathologists might be a -- a reasonable source for 15 such a code of practice. And you would -- will be 16 interested to know, I'm sure, that, historically, there 17 hasn't been a forensic pathology section in the Canadian 18 Association of Pathologists, but this past summer, the 19 membership voted one in. 20 And I'm currently the -- the first Chair, 21 and I'm producing an executive committee and one (1) of 22 our first tasks is this issue; contemplating issues about 23 what type of professional guidelines can come from the -- 24 from the national body. 25 MR. JAMES LOCKYER: Mm-hm.
551 DR. MICHAEL POLLANEN: So I think that -- 2 that's another way of promoting this concept, is not 3 purely through government policy, as it were, but through 4 professional organizations which have a role in -- in 5 this area as well. 6 And -- and the second point being that we 7 have to remember that there are many actors in the 8 criminal justice system and in many cases the Defence Bar 9 is really the organization that has to initiate these 10 processes. 11 So, for example, when a -- when a 12 pathologist is doing an autopsy on a homicide or 13 criminally suspicious case, again, we -- we cannot 14 anticipate all eventualities; that -- that the Defence 15 Bar is engaged in the issue of second autopsy is a 16 requirement -- in addition for us developing policies -- 17 it is a requirement that they make the request to do so. 18 So it's -- it's not just, for example, the 19 Government Office, like the Office of the Chief Coroner. 20 It's not just the professional bodies such as the Royal 21 College. But it's also the Defence Bar that has to be 22 aware that that's an option open to them and explore 23 mechanisms of obtaining that expert service. 24 MR. JAMES LOCKYER: And since this 25 Inquiry is dealing with pediatric forensic pathology, it
561 is, perhaps, as important, if not more important or more 2 likely to be something that -- that would be helpful in a 3 pediatric case when, as often as not, the issue may be 4 whether there was a homicide in the first place. 5 DR. MICHAEL POLLANEN: My own view is 6 that that's an extension of the whole double-doctoring 7 philosophy, where, in this case, we have identified as 8 the other doctor, essentially a defence pathologist, 9 which may be a convenient way of labelling the person for 10 the criminal justice point-of-view, but from a 11 professional point-of-view simply represents another 12 pathologist who the initial pathologist can interact 13 with. 14 MR. JAMES LOCKYER: And, Dr. McLellan, I 15 hadn't sort of planned to ask this question but it's sort 16 of come to me as I'm listening to the answers that you're 17 giving. 18 Certainly, at least, in one (1) of these 19 cases -- and I'm thinking of Baby Joshua's case -- you 20 ordered an exhumation of the body -- 21 DR. BARRY MCLELLAN: I did. 22 MR. JAMES LOCKYER: -- some six (6) or 23 seven (7) years after his burial. And I think that was 24 on the advice of Dr. Pollanen. 25 Is that right, sir?
571 DR. BARRY MCLELLAN: Yes, that's correct. 2 MR. JAMES LOCKYER: Yes. And the way the 3 legislation presently stands, I think I'm right in saying 4 -- and I haven't researched this recently -- but it's 5 only you and the Attorney General of the Province who 6 have the power to order an exhumation. 7 Is that right? 8 DR. BARRY MCLELLAN: In -- in fact it's 9 not quite that simple. It's -- it's within the 10 Cemeteries Act -- 11 MR. JAMES LOCKYER: Right. 12 DR. BARRY MCCLELLAN: -- and I can't give 13 you the exact section -- but it includes the Attorney 14 General, Coroner, under court order, and also -- 15 MR. JAMES LOCKYER: All right. 16 DR. BARRY MCCLELLAN: -- on family 17 consent; that latter is more relevant for a family who 18 wishes to have a body moved from one location to another. 19 MR. JAMES LOCKYER: I see. 20 DR. BARRY MCCLELLAN: I think it would be 21 most appropriate to get the detail for later when someone 22 can call up the specific section of the Act, but there is 23 legislation, and it does include at least those four (4). 24 MR. JAMES LOCKYER: Presumably in -- in 25 Joshua's case, you ordered the exhumation, pursuant to a
581 notion of -- of the interests of justice. 2 Is that fair? 3 DR. BARRY MCCLELLAN: I ordered it in 4 order to advance a Coroner's investigation in that there 5 were now new questions with respect to the cause of 6 death. 7 MR. JAMES LOCKYER: And is that 8 specifically legislated for in the Cemeteries Act or is 9 this just you exercising a discretion which isn't defined 10 in the Act? 11 As I say I haven't read it so I'm -- I'm 12 asking these questions without having read the Act. 13 DR. BARRY MCCLELLAN: Yeah, I think the 14 most appropriate thing would be to pull up the section of 15 the Act so -- 16 MR. JAMES LOCKYER: All right. 17 DR. BARRY MCCLELLAN: -- that we're not, 18 perhaps, misinterpreting. 19 MR. JAMES LOCKYER: Well -- 20 DR. BARRY MCCLELLAN: I -- I -- there's 21 also an option for the Solicitor General to -- to order 22 an exhumation. 23 MR. JAMES LOCKYER: Might it be helpful, 24 in the context of these kinds of cases, sir, if -- if the 25 -- if the Act -- assuming for a moment that it doesn't
591 provide for this -- if the Act did provide for the 2 exercise of your discretion in the -- whenever it seemed 3 to further the interests of justice? 4 DR. BARRY MCCLELLAN: It seems to me 5 that, under those circumstances, there's options for the 6 Attorney General to order the -- to order the exhumation 7 or for court order. I think it best myself that the 8 Coroner would order an exhumation to advance a coroner's 9 investigation. 10 MR. JAMES LOCKYER: All right. Let me 11 move into -- 12 COMMISSIONER STEPHEN GOUDGE: Can I ask 13 then just a couple of questions before you move, Mr. 14 Lockyer? 15 MR. JAMES LOCKYER: Of course. 16 COMMISSIONER STEPHEN GOUDGE: Dr. 17 Pollanen, we talked a little about this earlier in the 18 week, but going back to your five (5) steps of autopsy, 19 given one of the models that Mr. Lockyer was putting to 20 you, that is the preservation of the body to permit a 21 second autopsy, presumably a defence autopsy, is there 22 any way of generalizing how much is lost by the second 23 pathologist not having Steps 1, 2, and 3 to go through, 24 or is that a case-specific set of issues? 25 DR. MICHAEL POLLANEN: I think it's case
601 specific. I would say that I am aware that one of the 2 limitations with second autopsies in other jurisdictions 3 is delay. And, of course, if there is significant delay, 4 even if the body is refrigerated, you will get 5 decomposition. 6 So, the defence autopsy, if it's too far 7 down the track, will not be a very meaningful exercise if 8 you are looking, for example, for missed findings that 9 might be subtle. 10 COMMISSIONER STEPHEN GOUDGE: I assume 11 though, that by the time one gets to a second autopsy, 12 for example, the important internal organs will have been 13 removed and tissue samples taken, and so that step in a 14 second autopsy, in effect, has already been done. 15 DR. MICHAEL POLLANEN: Well, in my 16 experience doing second autopsies, still quite a lot can 17 be gained by examining the dissected organs. 18 COMMISSIONER STEPHEN GOUDGE: I see. 19 DR. MICHAEL POLLANEN: So the -- the 20 organs are put back into the body and in -- in our 21 jurisdiction most bodies are embalmed -- 22 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 23 DR. MICHAEL POLLANEN: -- and if they're 24 embalmed well and you are aware of the pitfalls 25 associated with doing second autopsies on embalmed
611 bodies, you can get quite a lot of information from a 2 second post-mortem. 3 COMMISSIONER STEPHEN GOUDGE: Okay. So 4 there is, perhaps, some loss but, I mean, depending on 5 the case, not a significant loss? 6 DR. MICHAEL POLLANEN: Correct. And -- 7 and sometimes the second post-mortem examination is also 8 augmented by specimens that have been kept in the first 9 instance. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. MICHAEL POLLANEN: So those can be 12 given to the person -- 13 COMMISSIONER STEPHEN GOUDGE: Second 14 pathologist? 15 DR. MICHAEL POLLANEN: Exactly. 16 COMMISSIONER STEPHEN GOUDGE: Okay. Then 17 let me ask one (1) question of you, Dr. McClellan. 18 In terms of the interests at stake in 19 preserving rather than releasing the body, is the main 20 interest in releasing it the family interest in burial? 21 DR. BARRY MCCLELLAN: Yes. 22 COMMISSIONER STEPHEN GOUDGE: Are there 23 any other significant interests? 24 DR. BARRY MCCLELLAN: It almost always is 25 the interests of the family to move on and to have the
621 body buried or and -- and Dr. Pollanen didn't cover this 2 -- one (1) of the circumstances is cremation. And 3 obviously with cremation the -- the body is then, you 4 know, lost for further examination -- 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. BARRY MCCLELLAN: -- which is one of 7 the reasons we want to ensure that there's no request for 8 further examination before the body's released. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 Okay. 11 DR. BARRY MCCLELLAN: And for the -- we 12 don't need to -- to call it up at this time, Mr. Lockyer 13 or Commissioner, but I did refer to that memorandum, so 14 it is in PFP057584 on page 226. It's dated January 13, 15 2004 and it's entitled, "Release of Bodies on Homicide 16 and Criminally Suspicious Cases." 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 Thanks, Mr. Lockyer. 19 20 CONTINUED BY MR. JAMES LOCKYER: 21 MR. JAMES LOCKYER: one of the things, 22 Mr. Commissioner, if I have time, I may get into is 23 because it does sort of arise out of your questions is 24 the issue of taping and videotaping autopsies. But I 25 don't know if I'll have time for that.
631 But let me move on into the second part of 2 this issue of -- of a second go at an autopsy or at least 3 a second go at a review of a case and I want to look at 4 it now from, not -- not in terms of the early days when 5 the person dies and the autopsy is done, but the post- 6 conviction time. 7 And, Dr. McClellan, I want to address this 8 to you first of all. Certainly, in recent times, sir, at 9 least one (1), if not more than one (1), but one (1) in 10 particular is in my mind, request has been made of you by 11 AIDWIC for a case in the past to be reviewed by your 12 office. 13 Is that right, sir? 14 DR. BARRY MCCLELLAN: Yes. 15 MR. JAMES LOCKYER: And at least until 16 this time, sir, your office has not agreed to do that 17 review. 18 Is that right? 19 DR. BARRY MCLELLAN: I'm not sure I 20 understand the question. In this particular case -- 21 MR. JAMES LOCKYER: Yes. 22 DR. BARRY MCLELLAN: -- you're suggesting 23 that it was agreed the -- 24 MR. JAMES LOCKYER: No, it has not been 25 agreed. The Office has, to date, refused to conduct the
641 -- the requested review. 2 DR. BARRY MCLELLAN: The Office has 3 agreed to review cases in the past. I'm not sure which 4 specific case you're referring to, Mr. Lockyer to know 5 whether or not it has or has not been agreed to review. 6 MR. JAMES LOCKYER: Mr. Commissioner, may 7 I identify the case by a first name which I'm sure will 8 help, certainly Dr. Pollanen, to know which case I'm 9 talking about? 10 COMMISSIONER STEPHEN GOUDGE: Certainly. 11 If you are going to use an identifier, use a first name. 12 13 CONTINUED BY MR. JAMES LOCKYER: 14 MR. JAMES LOCKYER: It's a case of Jeff 15 (phonetic). You're aware of the case, Dr. Pollanen? 16 That didn't work. 17 DR. MICHAEL POLLANEN: I -- I know the 18 case that you're speaking of. 19 MR. JAMES LOCKYER: Good. Okay. Does 20 that help you, Dr. McLennan? 21 DR. BARRY MCLELLAN: It does. 22 MR. JAMES LOCKYER: Okay, good. And it 23 was actually a case in which Dr. Smith did not testify or 24 provide a written opinion, but it was a case where, I 25 think to your knowledge, he provided some verbal opinions
651 to other doctors at the Hospital for Sick Children. 2 Is that right, sir? 3 DR. BARRY MCLELLAN: That information has 4 been provided to me, yes. 5 MR. JAMES LOCKYER: Now, could you tell 6 us and I'm -- I'm really not asking this in the context 7 of Jeff's case more -- I'm asking more at a more general 8 specific -- or sorry, a systemic level just using his 9 case as -- as the example -- why would your office, sir, 10 not automatically agree to conduct a review of a case 11 from the past, assuming, if I may, that the person making 12 the request has some legitimacy with you in the first 13 place? 14 It's not -- you're not being asked by an 15 organization or an individual who has no credibility, but 16 you are being asked by an organisation, hopefully, with 17 some credibility. 18 Why would you not automatically say yes? 19 DR. BARRY MCLELLAN: It seems to me this 20 is an area that we -- we've covered in part already, Mr. 21 Lockyer. My -- my answer is that the Office should not 22 be taking the lead in a post-conviction review. And in 23 this particular case, this was a circumstance where there 24 was a conviction. 25 There can be many circumstances related to
661 that conviction that fall well outside of the area of 2 expertise of the office, including pathology, 3 pathologists, and for that reason I don't believe the 4 Office should take the lead in a post-conviction review. 5 And my understanding of this case is that that was what 6 the request was for. 7 MR. JAMES LOCKYER: But in the case of 8 Valin, sir, you did it without even being asked to do it. 9 So I don't understand why, if you do it when you're not 10 asked to do it, you wouldn't do it when you are asked to 11 do it. 12 I mean are you saying, for example, if the 13 request in Valin's case from AIDWIC had not been, Could 14 you please provide us with the tissue samples so we can 15 send them off to Professor Nidem Whales (phonetic) so he 16 can look at them; but if instead of asking that, we had 17 asked you, Could you please review this case, you would 18 have not reviewed it? 19 DR. BARRY MCLELLAN: Yeah, the case of 20 Valin was a very unique case in that the request was for 21 materials and had those materials been easily located, 22 they would have been sent to another pathologist who 23 would have conducted the review. 24 In the case of Valin, what was unique is 25 that I was provided by information -- provided with
671 information from Dr. Pollanen as a result of a request to 2 catalogue, and based on that information I felt it was 3 appropriate to review the case. 4 MR. JAMES LOCKYER: In -- in Joshua's 5 case, sir, you were asked specifically by AIDWIC to have 6 a review conducted by your office and -- and God bless 7 you, you agreed to it. 8 And I'm wondering why in that case you 9 agreed to it and in another case you wouldn't agree to 10 it? 11 DR. BARRY MCCLELLAN: That particular 12 case was one that was identified already as part of the 13 Smith Review. What was brought to my attention in that 14 case was a separate Family Court matter and the review 15 was expedited by having it reviewed internally. So 16 again, both of those are unique circumstances, Mr. 17 Lockyer, in my opinion. 18 MR. JAMES LOCKYER: Well, you might say, 19 I suppose, the unique circumstance in this third case, 20 for example, would simply be that it was a case in which 21 the Hospital for Sick Children played a very significant 22 role. I think there were six (6) or seven (7) of their 23 people who testified at the trial. 24 DR. BARRY MCCLELLAN: Well, again, I -- I 25 think I've -- I've identified why I asked Dr. Pollanen to
681 review Valin and Joshua's case. And the other case that 2 you have raised is a separate post-conviction review 3 request and I don't believe the Office of the Chief 4 Coroner should be taking a lead role in reviewing cases 5 where there's a post -- where it's a post-conviction 6 review. 7 MR. JAMES LOCKYER: This may not be a 8 nice question, Dr. McClellan, but I'm going to ask it 9 anyway. 10 If the request in Jeff's case had come 11 from the Crown would you have agreed to conduct the 12 review? 13 DR. BARRY MCCLELLAN: I think I'd have to 14 know what the specific request was and what the reason 15 for the request was. 16 MR. JAMES LOCKYER: If -- let's assume 17 that the request from the Crown was that we have concerns 18 about this case, which is exactly why AIDWIC requested 19 you to review the case; We have concerns about this case. 20 So, let's assume the Crown said, We have 21 concerns about, in essence, the validity of a conviction; 22 would you -- surely you would have reacted by referring 23 the case, almost certainly, to Dr. Pollanen and ask him 24 to review it. 25 DR. BARRY MCCLELLAN: Right. And I think
691 that fits with my previous answer, as well, in that the 2 lead for a post revic -- post-conviction review -- review 3 should come from the Ministry of the Attorney General. 4 So if the Crown, seized with further and 5 additional information, requested a review with the 6 understanding that that information would then be sent to 7 the Crown and to the Ministry of the Attorney General so 8 that they could consider it in the context of other 9 information, I believe at that time I would have 10 requested that the case be reviewed within the office, 11 yes. 12 MR. JAMES LOCKYER: Doesn't that 13 automatically lock you into that very concern what the 14 public may have of a bias on the part of the Office of 15 the Chief Coroner, that you're far more likely to react 16 to a legitimate request from the Attorney General then 17 you are to react for -- to a legitimate request by a 18 third party or third party organization? 19 DR. BARRY MCLELLAN: Well, I -- I think 20 you're aware, Mr. Lockyer, how concerned I am that the 21 Office is seen to be independent and -- 22 MR. JAMES LOCKYER: I know. 23 DR. BARRY MCLELLAN: -- have taken many 24 steps to try to deal with that. I do think that this is 25 a different circumstance around a post-conviction review
701 and it may be a matter that will come forward for 2 discussion at the Forensic Services Advisory Committee. 3 But today my feeling is that the lead for such a review 4 should not come from the Office of the Chief Coroner. 5 MR. JAMES LOCKYER: We keep coming back 6 to this. I'm trying to bypass the committee, because I 7 have a commissioner who can make recommendation that, in 8 a sense, can certainly make the committee sit up and take 9 notice. 10 But let me -- let me take you to the 11 Centre of Forensic Sciences as a parallel, if I may, 12 because I imagine you're aware that since time 13 immemorial, the Centre of Forensic Sciences has been 14 prepared to conduct testing at the request of the 15 defence, without qualification but for being satisfied 16 that there's a legitimate purpose behind the defence 17 request for a particular course of testing to be 18 conducted. 19 You're aware of that, are you? 20 DR. BARRY MCLELLAN: I don't know the 21 details, but I do know the concept that you're 22 describing. 23 MR. JAMES LOCKYER: Right. So if, for 24 example, I had a case of -- a post-conviction review case 25 where I wanted post-conviction DNA testing done on the
711 basis that its results may establish a wrongful 2 conviction, to just to take a simple case. And it's 3 certainly happened in this country and in this province 4 and elsewhere as well. And the Centre of Forensic 5 Sciences is of the view that the request is legitimate in 6 the sense that if a results obtained, it could have 7 meaning, in terms of the validity of a conviction, and 8 the Centre will go ahead and do the testing. I think -- 9 I think we can say that. 10 And I'm wondering why you -- as -- as 11 really -- you're right next door to them and you sort of 12 operate in so many ways similar to them, why you wouldn't 13 take the same position; that a request by the defence -- 14 pre-conviction, post-conviction, who cares; it's all to 15 do with justice -- for a review of a case would be 16 undertaken by your office, as long as it has a legitimacy 17 to it? 18 DR. BARRY MCCLELLAN: It -- it's 19 difficult to, I think, attach a specific level to what 20 legitimacy means. It's -- it's very difficult to 21 interpret that from correspondence and a request for a 22 case to be -- to be reviewed, Mr. Lockyer. 23 Suffice it to say that advances in the 24 recent past have include -- included steps to ensure that 25 prior to any conviction, perhaps prior to charges even
721 being -- well, perhaps even prior to charges being laid, 2 that we're facilitating second examination of a body 3 before release; we've covered that. We've also talked 4 about methods to improve access of the Defence Bar to 5 experts to assist them through obtaining second opinions. 6 I'm not sure how, exactly, the testing 7 protocol was established at the Centre of Forensic 8 Sciences. You may, in fact, know whether it went through 9 the advisory committee at the time. 10 MR. JAMES LOCKYER: Long preceded that, 11 sir. 12 DR. BARRY MCLELLAN: Okay. 13 MR. JAMES LOCKYER: Long preceded. 14 DR. BARRY MCLELLAN: But I think that 15 it's a matter for discussion at the new Forensic Services 16 Advisory Committee, and that does not by any means 17 suggest that it shouldn't arise as a -- a recommendation 18 from this Inquiry. 19 MR. JAMES LOCKYER: Good. 20 DR. BARRY MCLELLAN: But as of today -- 21 MR. JAMES LOCKYER: You keep saying that. 22 DR. BARRY MCLELLAN: -- I believe that it 23 should go to the committee. 24 MR. JAMES LOCKYER: All right. So -- but 25 certainly, just for clarification, your rejection of the
731 request on behalf of Jeff had nothing to do with the 2 legitimacy or lack of legitimacy of the request? 3 DR. BARRY MCLELLAN: No. 4 MR. JAMES LOCKYER: No, I don't think it 5 did. You got supplied with, matter of fact, more than a 6 box of materials with a twenty-five (25) page letter 7 attached explaining the case? 8 DR. BARRY MCLELLAN: I recall -- I recall 9 significant materials arriving. 10 MR. JAMES LOCKYER: Indeed. And does it 11 -- sorry, does it boil down as much as anything, Dr. 12 McLellan, and -- and please be forthright if this is the 13 case -- does it boil down, as much as anything, to a 14 question of resources? 15 DR. BARRY MCLELLAN: I would say that 16 that is not, in fact, the fundamental reason. I just 17 know of no chief coroner's office who has taken the lead 18 in such post -- post-conviction review matters. And, 19 again, I don't know of a chief coroner's office that's 20 taken the lead in the type of review, such as the Smith 21 Review. 22 So it doesn't mean that it shouldn't be 23 done in future, but I believe it needs to be considered 24 carefully. 25 MR. JAMES LOCKYER: Well, taking the lead
741 in the Smith Review -- in a sense, that's what you did -- 2 in the context in which I'm talking now, it's not your 3 taking the lead, the lead's being taken by the person 4 making the request. And your response to that request is 5 to, at least in -- in -- in at least one (1) case and I 6 think it's right to say more than one (1) -- is to turn 7 down the request. 8 DR. BARRY MCLELLAN: Well, I can 9 certainly say today that such a request has been turned 10 down. 11 MR. JAMES LOCKYER: Mm-hm. 12 DR. BARRY MCCLELLAN: I don't think I can 13 do more today than to explain why. It may be a matter 14 that will be reconsidered in future. And my position, as 15 of today, Mr. Lockyer, is that such reviews should come 16 through the Ministry of the Attorney General as -- as has 17 occurred in other cases. 18 MR. JAMES LOCKYER: And this issue, sir, 19 has been raised, in fact, at the -- by the Advisory 20 Committee. 21 Am I not right? 22 DR. BARRY MCCLELLAN: I remember a brief 23 discussion about this. 24 MR. JAMES LOCKYER: Mm-hm. 25 DR. BARRY MCCLELLAN: I can't say it's
751 had fulsome discussion, Mr. Lockyer. 2 MR. JAMES LOCKYER: Mm-hm. Dr. Pollanen, 3 you've been listening to this no doubt and you're 4 familiar with what Dr. McClellan and I have been 5 discussing. 6 Could you give us your comments, sir? 7 DR. MICHAEL POLLANEN: It's rather open-- 8 MR. JAMES LOCKYER: It is, sir. In -- in 9 my profession, it's called "exposing your chin". 10 DR. MICHAEL POLLANEN: Well, I think 11 there are -- there are a number of points that emerge out 12 of that discussion and I would say that I, essentially, 13 agree with Dr. McClellan in everything that he said 14 there. 15 And these are in no particular order, but 16 I think that they -- they sort of capture my view. I 17 think there's great value in harmonizing policies on this 18 issue across the forensic sciences and forensic 19 pathology. So, insofar as we can set a standard that's 20 common between the Centre of Forensic Science and the 21 Coroner's Office, that, I think, should be explored. 22 Because, essentially, the issue is the 23 same. The nature of the post-conviction -- conviction 24 testing is different, but the issue is the same. 25 The other -- the other issue is we can't
761 lose sight of the fact that we have lots of forensic 2 pathologists in the world and that many advocates, such 3 as yourself, can hire or consult other forensic 4 pathologists for opinions in cases. And those 5 pathologists need not be affiliated with a governmental 6 institution. There are other consultants available. 7 So the -- the -- 8 MR. JAMES LOCKYER: Of course, the -- the 9 beauty, without -- I suppose I am cutting you off -- but 10 the -- the beauty of coming through your office, sir, is 11 that since you're certainly perceived from a defence 12 perspective as being a part of the system, so to speak, 13 any opinion, any favourable opinion, coming from you or 14 your office is likely to hold, one would hope, great sway 15 with the -- with the Attorney General's Office. 16 DR. MICHAEL POLLANEN: I -- I really 17 can't speak to that. I mean, I would say that 18 individuals give opinions, not offices. 19 MR. JAMES LOCKYER: Do -- do -- 20 DR. MICHAEL POLLANEN: That's the way I 21 would interpret it. 22 MR. JAMES LOCKYER: Do -- do you not 23 think that this could be -- I mean, I don't think it 24 would surprise you to hear that you -- you would be 25 viewed by the Defence Bar, rather like the Centre of
771 Forensic Sciences was before the Morin Inquiry, as being 2 very much a part of the prosecution system in -- in the 3 Criminal Justice system. 4 And I'm wondering if you don't think that 5 a good way of getting out of that culture would be to be 6 prepared to provide opinions on request of the -- the 7 defence, so long as those opinions have legitimacy in the 8 first place? 9 DR. MICHAEL POLLANEN: I would say that I 10 recognize that there is a role for the pathologist and 11 the defence; working with the defence, working through 12 scientific issues, education, perhaps ancillary testing. 13 I think there is a -- there is a big role for the 14 pathologist in the defence. 15 How that is accomplished administratively 16 in the post-conviction scenario is the issue. I don't 17 think anybody would advance the position that the defence 18 should not have access to high quality forensic pathology 19 in the post-conviction scenario. The -- the challenge is 20 how do we create administrative structures that best 21 facilitate that? 22 MR. JAMES LOCKYER: Oh, I like that. And 23 -- and that administrative structure, if we're talking 24 about setting up an administrative structure, if you use 25 the Centre of Forensic Science's model, is a model of
781 acute interest to anyone working in the post-conviction 2 field because it's a model where the Centre of Forensic 3 Science absorbs all costs and does not charge for the 4 work that it's doing. And that would be a model that, 5 from the perspective of anyone involved in post- 6 conviction work and putting it into -- into your -- into 7 the Office of the Chief Coroner, would be a positive 8 delight if we could be ensured of -- of free access to 9 good opinions that might well influence the -- the other 10 side, meaning the Attorney General. 11 DR. MICHAEL POLLANEN: We seem -- we seem 12 to have jumped from an administrative structure -- 13 MR. JAMES LOCKYER: You've got it. 14 DR. MICHAEL POLLANEN: -- to our office 15 again. 16 MR. JAMES LOCKYER: Who's paying for it? 17 DR. MICHAEL POLLANEN: But having said 18 that, administrative structures need not involve, as 19 you've indicated, governmental bodies; they may involve 20 third party bodies or arm-length bodies such as a 21 criminal case review commission. 22 So, there are many administrative models 23 that one could use for this. Or as I've indicated as has 24 happened in the past -- and as I would say is most 25 frequent in the post-conviction scenario -- where there
791 is a -- essentially, a defence attorney hires a 2 pathologist to -- to give an opinion and then presents 3 that opinion. 4 But I will come back to one thing that I - 5 - that I think is important, and that is that there is 6 some value, in my mind, to there being some harmony in 7 how that issue is approached on the medical side and the 8 scientific side. And what I mean by that is the Centre 9 of Forensic Science and our office. 10 COMMISSIONER STEPHEN GOUDGE: And do you 11 see this harmony now, or do you know enough about it to 12 be able to say? 13 DR. MICHAEL POLLANEN: This is an issue 14 that I've thought about and we've discussed and I agree 15 that the Centre of Forensic Science, essentially, has 16 policy on the matter, and we do not have codified policy 17 on the matter. And there is some reason -- there is some 18 value in looking at what the Centre has done and seeing 19 if that applies to us or if we can harmonize our policy 20 on the matter. 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: And -- and it was 24 addressed by Commissioner Kaufman of the Morin Inquiry 25 too, to your knowledge?
801 DR. MICHAEL POLLANEN: Yes. 2 MR. JAMES LOCKYER: Yes. Because just 3 staying for a moment on the cost issues, sir, at the 4 moment the -- AIDWIC is trying to assist seven (7) of the 5 nine (9) individuals that I'm here for, without any -- 6 without any access to resources; where, potentially, we 7 are looking to go to seven (7) different pathologists for 8 opinions on their cases. I mean, it's pretty easy to see 9 that that could potentially cost an enormous amount of 10 money. 11 Whereas, if we could come through the 12 Office of the Chief Coroner and obtain opinions in some, 13 or all of the cases for that matter, from within the 14 Office of the Chief Coroner, certainly we would have 15 solved our financial problem. We may have created some 16 for the Office of the Chief Coroner in the process. 17 DR. MICHAEL POLLANEN: It still costs 18 money and -- 19 MR. JAMES LOCKYER: Mm-hm. 20 DR. MICHAEL POLLANEN: -- and is 21 resource-intensive. One (1) dimension that, perhaps, has 22 -- has not come out in what we've discussed so far is 23 that doing a post-conviction pathology review, having 24 done several of them now, I can tell you is a very time- 25 consuming effort.
811 MR. JAMES LOCKYER: Mm-hm. 2 DR. MICHAEL POLLANEN: Largely, because 3 you have to cast a very broad net, the record is 4 voluminous and there's an additional pressure on the 5 pathologist to be very complete; and, for example, that 6 will include extensive reviews of the literature and it 7 may include additional testing. In the case of Joshua, 8 it involved an exhumation. 9 These are -- these are very significant 10 undertakings and, for example, if -- if we were to 11 continue a line that you've suggested which is 12 essentially transferring the responsibility of X number 13 of post-conviction pathology reviews -- 14 MR. JAMES LOCKYER: You mean the cost, not 15 responsibility; the cost? 16 DR. MICHAEL POLLANEN: Well, the duty to 17 do them. If you -- if you say -- 18 COMMISSIONER STEPHEN GOUDGE: Cost goes 19 with that, I think, Mr. Pollanen. 20 21 CONTINUED BY MR. JAMES LOCKYER: 22 MR. JAMES LOCKYER: Yeah, I don't like 23 the respons -- it's not like we're passing the 24 responsibility. As a part of the responsibility we're 25 asking for opinions.
821 Anyway, it's -- it's just -- 2 DR. MICHAEL POLLANEN: We won't argue 3 with the words. 4 MR. JAMES LOCKYER: -- perhaps I'm 5 quibbling. 6 DR. MICHAEL POLLANEN: The -- the issue 7 there is though, that if -- if you're saying that my 8 department, for example, would then provide these reviews 9 and produce the documents, for example, -- 10 MR. JAMES LOCKYER: Mm-hm. 11 DR. MICHAEL POLLANEN: -- that I've 12 produced with Joshua and Valin, for example, which are 13 extensive documents, and in one (1) case involved an 14 exhumation; if you're saying that we want you to do that 15 unit of work as a one (1) time situation or, for example, 16 as part of a -- part of our program, part of the services 17 that we offer in addition to our routine autopsy 18 services, that would have to come with a huge increase in 19 budget. 20 And -- and we haven't talked about 21 budgetary issues in forensic pathology -- they're 22 extremely complicated -- but let's say this; that if that 23 were something that my department was tasked with, 24 essentially that would come with a huge burden on 25 professional time, technical time, and that would very
831 much challenge our ability to do work that is currently 2 before us, for example, in cases that are currently 3 before the criminal justice system. 4 MR. JAMES LOCKYER: But right now that 5 budgetary problem falls on, to take the seven (7) cases, 6 an organization which certainly doesn't have the funds to 7 deal with these kinds of problems. 8 DR. MICHAEL POLLANEN: Well, I -- I 9 suspect that -- I'm not sure how you're funded, how your 10 organization is funded -- but I suspect -- I have no 11 reason to -- to disagree with you that you find 12 resourcing a challenge, as well. 13 MR. JAMES LOCKYER: All right, let me -- 14 can I move on into the next area -- sorry. 15 COMMISSIONER STEPHEN GOUDGE: Let me just 16 ask one (1) economic question, Dr. Pollanen. You've 17 described the magnitude of the task of doing a post- 18 conviction review. 19 Can you put a multiple on it comparing it 20 to the original autopsy and death investigation process? 21 Is it normatively twice as costly or the same cost? 22 You describe it, inferentially, as a 23 significantly more costly process; resource intensive 24 process. 25 DR. MICHAEL POLLANEN: The -- there are
841 some post-conviction reviews that come to the pathologist 2 as part of a completeness exercise where the pathology is 3 really not an issue -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. MICHAEL POLLANEN: -- but what it's 6 covered off as an issue, as it were, in the -- in the 7 post-conviction process. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. MICHAEL POLLANEN: Those cases may -- 10 may not take very long. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. MICHAEL POLLANEN: But the types of 13 cases that we're talking about, I -- or that I've assumed 14 that we're talking about -- 15 COMMISSIONER STEPHEN GOUDGE: Where the 16 pathology was critical to the conviction? 17 DR. MICHAEL POLLANEN: Yes. Those are -- 18 those are very -- they're very difficult to predict in 19 terms of their workload, but there is considerable 20 workload. 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: And of course, the 24 third case you can -- 25 COMMISSIONER STEPHEN GOUDGE: More than--
851 MR. JAMES LOCKYER: Sorry. 2 COMMISSIONER STEPHEN GOUDGE: -- the 3 first time around? 4 DR. MICHAEL POLLANEN: In order of 5 magnitude, more than the first time around. The Valin 6 case -- I mean, I can't begin to count the hours on the 7 Valin case. The -- the Joshua case involved an 8 exhumation, going to the graveyard. I mean there is -- 9 there is lots of time and effort involved in those 10 processes. These are not -- these are not simple 11 undertakings. 12 13 CONTINUED BY MR. JAMES LOCKYER: 14 MR. JAMES LOCKYER: The Steven Truscott 15 case, too, I imagine was time consuming. 16 DR. MICHAEL POLLANEN: This -- the 17 Truscott case consumed weeks -- 18 MR. JAMES LOCKYER: Yes. 19 DR. MICHAEL POLLANEN: -- not months of 20 time. 21 MR. JAMES LOCKYER: All right. Can I 22 move and I -- I think I'm only going to have time for one 23 (1) more area, but I want to -- I want to deal with this 24 area of clinicians that there's been some discussion of 25 already.
861 And you'll recall, Dr. Pollanen, you got 2 one (1) question from the bench when you were testifying 3 in the Court of Appeal a few weeks ago, and that was from 4 Justice Rosenberg about the presence of Dr. Zehr at the 5 -- the autopsy of Valin. 6 Remember that, sir? 7 DR. MICHAEL POLLANEN: I do, yes. 8 MR. JAMES LOCKYER: Yes. And I'm not 9 sure, and I -- I was away the first three (3) days, as 10 you know -- but I'm not sure you've ever actually 11 expressed why it's a problem, potentially, having 12 clinicians present at an autopsy and/or providing 13 opinions, potentially, on -- on causes of death at later 14 dates. 15 And I just thought perhaps a way of doing 16 that was to take you through a couple of things that took 17 place at Valin's case and just see if you could comment 18 on them. 19 The first one was, I provided the -- as a 20 part of our presentation for this questioning, the 21 evidence of Dr. Zehr at the trial of Valin's uncle. 22 And if we could go to page 244 of that 23 document. We're in the midst here, sir, of the 24 examination-in-chief notice of -- by the Crown that is, 25 of Dr. Zehr, at page 244.
871 COMMISSIONER STEPHEN GOUDGE: It's not in 2 the binder, Mr. Centa. 3 MR. JAMES LOCKYER: It's up. He's got it 4 up -- there it is. 5 COMMISSIONER STEPHEN GOUDGE: It's on the 6 screen. But it's not in the binder I have? 7 MR. ROBERT CENTA: I don't believe -- I 8 think we have a hard copy though. 9 COMMISSIONER STEPHEN GOUDGE: That's 10 okay, I'll look at the screen. 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: But line 5, sir, Dr. 14 Zehr is asked by the Crown: 15 "Q: You had indicated that in your 16 observations, I think that the first 17 area that you looked at..." 18 And this is, of course, bearing in mind 19 that she was at the autopsy, present, while it was 20 proceeding. 21 "...was the anal area, the rectum, in 22 that area?" 23 And then skip down to her answer at line 24 22, which is really where she answers the question in 25 full. She says:
881 "When you look at the photograph, the 2 most striking feature is the size of 3 the anal gaping which is not normal. 4 The size I measured was about 10 by 12 5 millimetres. When I looked closer, and 6 this photograph doesn't completely 7 demonstrate that, it was clear to see 8 that the normal folds around the anus 9 were missing. It looked very smooth 10 and attenuated, which is a medical term 11 for wearing away or smoothing of an 12 area, which looked very abnormal. And 13 it's also what you see in children who 14 have been sexually assaulted or 15 sodomized. 16 Q: Based on that observation, what if 17 anything can you tell what it was 18 caused from? 19 A: Penetration with a penis or an 20 object of some kind. Repetitive 21 penetration would give you this kind of 22 a picture. 23 And by repetitive, are you in any 24 position to say how often? 25 A: No, I can't put distinct time
891 frame on that. I would say there have 2 been multiple episodes or it's been 3 fairly longstanding to get this degree 4 of change in the tissues." 5 And what I want to ask you, Dr. Pollanen: 6 Is that series of questions and answers -- and in a way 7 the very presence of Dr. Zehr on the witness stand in 8 this case reciting her observations and her conclusions 9 from the autopsy that had taken a case -- that had taken 10 place in that case -- is that a good example of the 11 dangers of allowing clinicians to move into the pathology 12 fields, sir? 13 14 (BRIEF PAUSE) 15 16 MR. JAMES LOCKYER: I mean she is surely 17 there testifying as if she is a pathologist, is she not? 18 DR. MICHAEL POLLANEN: I -- I'm not sure 19 that's the inference that can be drawn. What -- what I 20 take from this transcript is that -- that Dr. Zehr 21 attended the post-mortem, made some observations, and now 22 is giving an opinion about those observations. I agree 23 with the observations, I disagree with her conclusion. 24 MR. JAMES LOCKYER: Mm-hm. 25 DR. MICHAEL POLLANEN: And in my view --
901 in my presentation on the issue, I reconstruct that her 2 conclusion is in error because of the failure to 3 appreciate the phenomenon of post-mortem anal dilation. 4 MR. JAMES LOCKYER: As you told Justice 5 Rosenberg, sir, if it had been -- I'm not sure you put it 6 quite this way -- but if it had been you conducting that 7 autopsy, Dr. Zehr would not have been present at it? 8 DR. MICHAEL POLLANEN: Correct. 9 MR. JAMES LOCKYER: And if we then go to 10 the report on Valin's case, sir, that was prepared by Dr. 11 Smith, dated August 6th of 1993; it's a two (2) page 12 document that was filed as well, as a part of this 13 questioning. 14 15 (BRIEF PAUSE) 16 17 MR. JAMES LOCKYER: It's a two (2) page - 18 - the report of Dr. Smith dated August 6th, 1993. It was 19 filed as a part of this -- 20 COMMISSIONER STEPHEN GOUDGE: How much 21 longer are you going to be, Mr. Lockyer? 22 MR. JAMES LOCKYER: I could use all my 23 time if I may, Mr. Commissioner. 24 COMMISSIONER STEPHEN GOUDGE: So you got 25 another fifteen (15) minutes?
911 MR. JAMES LOCKYER: I do. I'm -- 2 COMMISSIONER STEPHEN GOUDGE: Yes, I 3 think maybe what -- 4 MR. JAMES LOCKYER: We could take a break 5 now? 6 COMMISSIONER STEPHEN GOUDGE: -- we'll 7 do, because we may go a little beyond you with Mr. Gover, 8 and Commission Counsel, we'll take a morning break now. 9 Before we do, I want to ask a totally 10 different question, Dr. McLellan. This has to do from 11 reviewing my notes last night, and it's pure 12 housekeeping. Let me just see if I can dig it out. 13 In your evidence-in-chief, you have Dr. 14 Chiasson down as the Deputy Chief Coroner of Pathology 15 from October 2000 to July 2001. 16 Was he also at that stage -- did he hold 17 two (2) titles? Was he also the Chief Forensic 18 Pathologist during that period of time? 19 DR. BARRY MCLELLAN: Yes. I mean, he had 20 all of the duties of the Chief Forensic Pathologist and 21 this was an additional title given to that position. And 22 at that time he was also appointed as a coroner. So he-- 23 COMMISSIONER STEPHEN GOUDGE: All right. 24 Right. And in terms of the administrative structure, 25 when you become a deputy chief coroner in 2001, in June I
921 think -- 2 DR. BARRY MCLELLAN: Correct. 3 COMMISSIONER STEPHEN GOUDGE: -- you 4 succeed, not to his title, but you take his place as the 5 third Deputy Chief Coroner? 6 DR. BARRY MCLELLAN: Correct. 7 COMMISSIONER STEPHEN GOUDGE: Okay. And 8 then when you become the Acting Chief Coroner a year 9 later, you've described to us how Dr. Young continues to 10 be responsible for the supervision of Dr. Smith. 11 DR. BARRY MCCLELLAN: Correct. 12 COMMISSIONER STEPHEN GOUDGE: Where is 13 Dr. Young once he ceases to be the Chief Coroner in July, 14 2002? That is, I assume, he's no longer in the Office of 15 the Chief Coroner of Ontario. 16 What's he doing at that point? 17 DR. BARRY MCCLELLAN: Sorry, as of...? 18 COMMISSIONER STEPHEN GOUDGE: As of the 19 time you become the Acting Chief Coroner in July of 2002. 20 DR. BARRY MCCLELLAN: Dr. Young still 21 maintained an office in the Office of the Chief Coroner. 22 COMMISSIONER STEPHEN GOUDGE: Did he move 23 to another job? 24 DR. BARRY MCCLELLAN: He had -- he became 25 Commissioner --
931 COMMISSIONER STEPHEN GOUDGE: Okay. 2 DR. BARRY MCCLELLAN: -- of, I believe, 3 it was Commissioner of Emergency Management. I don't 4 know the exact title at that time. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. BARRY MCLELLAN: But still maintained 7 an office at the Office of the Chief Coroner -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. BARRY MCLELLAN: -- and did deal with 10 some Chief Coroner duties through that period of time. 11 COMMISSIONER STEPHEN GOUDGE: Right. The 12 agreement that you and he had concerning Dr. Smith, was 13 that ever reduced to any kind of letter exchange or was 14 that simply an understanding you had? 15 DR. BARRY MCLELLAN: It was an 16 understanding. The appointment as Acting Chief Coroner, 17 there was an announcement which indicated it was to deal 18 with the day-to-day activities in the Coroner's Office. 19 There is a written document to support 20 that, but nothing with respect to our understanding as to 21 how to deal with outstanding matters involving Dr. Smith. 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 Thanks. Sorry, Mr. Lockyer. We'll break now for fifteen 24 (15) minutes and be back shortly after 11:30. 25
941 --- Upon recessing at 11:19 a.m. 2 --- Upon resuming at 11:33 a.m. 3 4 THE REGISTRAR: All rise. Please be 5 seated. 6 COMMISSIONER STEPHEN GOUDGE: Mr. 7 Lockyer...? 8 MR. JAMES LOCKYER: Yes, thank you, Mr. 9 Commissioner. 10 11 CONTINUED BY MR. JAMES LOCKYER: 12 MR. JAMES LOCKYER: Yes, if we could look 13 at this document. It's dated August 6th of 1993 and it's 14 the opinion of -- the written opinion of Dr. Smith on 15 Valin's case, sir or sirs -- 16 MR. NIELS ORTVED: And Dr. Mian. 17 MR. JAMES LOCKYER: Oh, I'm coming to 18 that. That's the whole point of -- of going to the 19 report. I just haven't got there yet. 20 21 CONTINUED BY MR. JAMES LOCKYER: 22 MR. JAMES LOCKYER: And if we look at -- 23 you're familiar with this document, Dr. Pollanen, 24 particularly? 25 DR. MICHAEL POLLANEN: Yes.
951 MR. JAMES LOCKYER: Yes. And if we go to 2 the second page of it, sir, and we look at the 3 conclusion. The conclusion is: 4 "This child's photographs show 5 findings, which if confirmed by the 6 post-mortem examination indicate death 7 by asphyxiation, trauma to the head, 8 and injury to the perineum and anus. 9 In the absence of a reasonable 10 explanation by history they indicate 11 non-accidental trauma including sexual 12 abuse." 13 So there you have a clear opinion as to 14 cause of death. Is that fair, Dr. Pollanen? 15 DR. MICHAEL POLLANEN: Well, it's -- it's 16 a qualified opinion about -- 17 MR. JAMES LOCKYER: As to cause of death? 18 DR. MICHAEL POLLANEN: -- issues. 19 MR. JAMES LOCKYER: Yes. And the first 20 signatory, sir, as Mr. Ortved's just pointed out isn't 21 actually Dr. Smith, it's Dr. Marcellina Mian. 22 And Dr. Mian as far as you're aware, sir, 23 has no pathology qualifications, am I right? 24 DR. MICHAEL POLLANEN: I've not reviewed 25 her CV but that's my understanding.
961 MR. JAMES LOCKYER: She's, in fact, a 2 pediatrician, as she says there, in the SCAN Unit at the 3 Hospital for Sick Children; she was then, and I believe 4 she still is now, although I think she's in -- somewhere 5 out in the Middle East at the moment. 6 DR. MICHAEL POLLANEN: It's my 7 understanding that that's not her position now, but I may 8 be -- 9 MR. JAMES LOCKYER: Okay. 10 DR. MICHAEL POLLANEN: -- incorrect. 11 MR. JAMES LOCKYER: I think she's 12 seconded but still a member of SCAN, but I may be wrong. 13 I think she's out in Kuwait or somewhere at the moment. 14 But leaving that aside, you have there a 15 pediatrician, obviously in company with Dr. Smith, and 16 one would assume with his approval and likely 17 encouragement, co-authoring an opinion as to cause of 18 death qualified or not, right, sir? 19 DR. MICHAEL POLLANEN: I'm not sure how 20 much encouragement went between the two (2) experts. 21 MR. JAMES LOCKYER: Mm-hm. 22 DR. MICHAEL POLLANEN: Clearly, they have 23 signed a common report. 24 MR. JAMES LOCKYER: And if we go back to 25 Justice Rosenberg's questions, sir, a few weeks ago in
971 the Court of Appeal, I would think this might be the 2 height of concern that one could have in a case such as 3 Valin's, that we have a pediatrician presenting an 4 opinion and signing off on an opinion as to cause of 5 death in Valin's case. 6 DR. MICHAEL POLLANEN: It may be the 7 height of your concern. I -- I have other concerns about 8 the case, but one (1) of them is that I recognize that 9 the forensic pathologist is best able to give opinions on 10 these matters. 11 MR. JAMES LOCKYER: If we -- 12 COMMISSIONER STEPHEN GOUDGE: Is it wise 13 or unwise to sign a joint opinion like this? 14 DR. MICHAEL POLLANEN: I think it creates 15 some confusion as to whose expert opinion is being 16 expressed and on what issue. However, there are 17 circumstances where opinions are jointly signed, so I 18 wouldn't exclude that as a -- 19 COMMISSIONER STEPHEN GOUDGE: As a viable 20 option? 21 DR. MICHAEL POLLANEN: Yes. But in this 22 report it's unclear whose views are represented where in 23 the report. 24 25 CONTINUED BY MR. JAMES LOCKYER:
981 MR. JAMES LOCKYER: Well, one would 2 assume that a signature by Dr. Mian and Dr. Smith would 3 suggest that they both support all the conclusions 4 expressed in the page and a half opinion to which they've 5 affixed their signatures. 6 DR. MICHAEL POLLANEN: It's not an 7 unreasonable conclusion to make. 8 MR. JAMES LOCKYER: No, it's not. 9 DR. MICHAEL POLLANEN: I'm -- what I need 10 to communicate is that it may be that different portions 11 of the report are correlated with the expertise of one or 12 the other, but clearly both people are signing the 13 report. 14 MR. JAMES LOCKYER: Really, to put it 15 bluntly, Dr. Pollanen, Dr. Mian had no business signing 16 off on a cause of death in a pediatric case. No business 17 at all. 18 DR. MICHAEL POLLANEN: The -- the trouble 19 I have with your -- with the way you've put this is that 20 it sounds like I'm making a judgment about Dr. Mian. I - 21 - I would clearly say the following, that based upon what 22 I know about the case the most effective way of dealing 23 with the issues is through forensic pathology. I do not 24 believe forensic pediatrician is a very effective way of 25 getting to the issues in this case and it -- it stems
991 back to the issue of interpreting post-mortem changes. 2 Pediatricians which have as their 3 experience living children, do not, on that basis, have 4 experience with the dead anus, in this circumstance, 5 therefore are not fully appreciative of the artifacts 6 associated with that. 7 So, this is where the -- where the issues 8 arise. 9 MR. JAMES LOCKYER: Dr. McClellan, 10 presumably you had some -- you had jurisdiction, so to 11 speak, over Dr. Smith back in the time this opinion was - 12 - was prepared. 13 Am I right? 14 DR. BARRY MCCLELLAN: No. 15 MR. JAMES LOCKYER: He was not acting, 16 sort of, pursuant to a request coming from a pathologist 17 under whose supervision -- who you supervised, in a 18 sense? I mean Rasaiah would have asked for this opinion. 19 DR. BARRY MCCLELLAN: Right. And the 20 date of this opinion? 21 COMMISSIONER STEPHEN GOUDGE: Yes, go 22 back to page 1 -- 23 24 CONTINUED BY MR. JAMES LOCKYER: 25 MR. JAMES LOCKYER: I'm sorry, I say
1001 "you". I always mean your office; I don't mean you 2 personally. 3 DR. BARRY MCCLELLAN: Okay. 4 MR. JAMES LOCKYER: It's -- it's not a 5 personal question. It's "you" meaning "your office". 6 DR. BARRY MCCLELLAN: I misinterpreted 7 your question. 8 MR. JAMES LOCKYER: You did. 9 DR. BARRY MCCLELLAN: Yes. Yes, this 10 would have been done -- 11 MR. JAMES LOCKYER: Yes? 12 DR. BARRY MCCLELLAN: -- as an extension 13 of the coroner's warrant. 14 MR. JAMES LOCKYER: Right. But 15 certainly, Dr. Mian would not fall under your office's 16 jurisdiction in any way? 17 DR. BARRY MCCLELLAN: Well, any -- any 18 expert who is called upon to advance a coroner's 19 investigation would be under the jurisdiction of the 20 coroner. 21 MR. JAMES LOCKYER: All right. 22 DR. BARRY MCCLELLAN: In this particular 23 case, I don't know who actually requested the opinion. 24 MR. JAMES LOCKYER: All right. Now, Dr. 25 Pollanen, in -- in, certainly, many of the cases where
1011 I'm -- that have put me standing where I am now, the 2 members of the SCAN Unit and other -- from other parts of 3 the Hospital for Sick Children as well, seem to have 4 played a significant role in the development of homicide 5 prosecutions. And I want to take you to an example of 6 that, if I may, so I can ask you about it. 7 Going back to Gaurov's case; if we can go 8 to the overview report of Gaurov at 143828, please? And 9 then go to paragraph 47 of that report. 10 COMMISSIONER STEPHEN GOUDGE: Sorry, give 11 me the paragraph number again. 12 MR. JAMES LOCKYER: 47, Mr. Commissioner. 13 COMMISSIONER STEPHEN GOUDGE: Thank you. 14 MR. JAMES LOCKYER: Paragraph 47. I'm 15 sorry, I don't know the page. Actually, I do know the 16 page; page 17. 17 COMMISSIONER STEPHEN GOUDGE: It's page 18 19 here, but let's use the paragraph numbers. 19 MR. JAMES LOCKYER: Yes, 47. Could you 20 move on a page -- two (2) pages? Sorry. Thank you. 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: You look there, sir. 24 This is a discussion -- or this is an overview report on 25 Gaurov's death and it reflects -- paragraph 47 -- a
1021 meeting that took place on March the 26th of 1992. And I 2 hasten to add that this is before charges have been laid. 3 This is before Gaurov's father has been charged with, 4 what came to be, the second degree murder of his son. 5 "On March the 26th of 1992, Gaurov's 6 case was discussed at a SCAN Team 7 conference. Present at the meeting 8 were Brenda Rao, SCAN Coordinator; Dr. 9 Katy Driver, SCAN Pediatrician; Frank 10 Serra, SCAN Social Work Student; David 11 Birtwustle, SCAN Social Worker; Len 12 Bethune, SCAN Nurse; Elain MacLauchlan, 13 SCAN Social Worker; Leslie Magill, SCAN 14 Social Worker, Jaquelyn Vay, SCAN; Dr. 15 Marcellina Mian [there she is again] 16 SCAN; Dr. Dirk Huyer, SCAN; [and, 17 finally, we get to a pathologist] Dr. 18 Charles Smith; Pat Sisson, CAS; Franc - 19 - Francine Mackenzie, CAS Supervisor; 20 [and then] Mary Hall, Crown Attorney; 21 Constable John Line (phonetic); 22 Constable Saul Bazim and Detective Rolf 23 Prisor of the Homicide Squad." 24 So we have -- at this meeting, sir, we 25 have one (1), two (2), three (3), four (4), five (5), six
1031 (6), seven (7), eight (8), nine (9), ten (10) people from 2 the SCAN Unit. I don't know how many people there are on 3 it, but it must be most of them, I would think, if not 4 all. 5 We then have the one (1) pathologist. We 6 then have CAS there; two (2) of them. And then, finally, 7 a Crown and three (3) police officers, including a 8 detective of the Homicide Squad. 9 This in a case, sir, where Gaurov did not 10 have a previous history with either Children's Aid or 11 with the SCAN Unit at the Hospital for Sick Children. 12 So there was no history of him having -- of them having 13 dealt with him prior to -- to his death. 14 And it -- it may seem a little unfair, 15 because again, I'm asking -- I'm not really asking you to 16 comment on the individuals, I'm asking you to comment on 17 the systemic problems that could be seen to arise out of 18 this, sir; that you have a group of people coming out of 19 a unit whose lives are devoted to uncovering and dealing 20 with abuse and sexual abuse of children and they are 21 clearly in the vast majority of this meeting. And this 22 meeting is a part of the development of a second degree 23 murder charge against Gaurov's father. 24 COMMISSIONER STEPHEN GOUDGE: Is there a 25 question lurking in there, Mr. Lockyer?
1041 2 CONTINUED BY MR. JAMES LOCKYER: 3 MR. JAMES LOCKYER: That's a real 4 problem, isn't it, Dr. Pollanen; the very fact that this 5 meeting ever took place in the first place? 6 DR. MICHAEL POLLANEN: I don't think the 7 fact of the meeting is of -- is, in fact, a problem. I 8 think that one of the themes that has -- has been 9 developed over the past few days has been a notion that 10 the death investigation process is a teamwork process. 11 It involves the input from multiple experts. It involves 12 an early case conference whenever possible so all members 13 of the team are familiar with the issues, and I think 14 that's what, in fact, this is; an early case conference. 15 The -- the issue that I see with the 16 meeting is the absence of a forensic pathologist. 17 MR. JAMES LOCKYER: But all of these SCAN 18 people, sir, and the CAS people who are there are people 19 who had no previous dealings with Gaurov, so their 20 presence there is -- is a presence that -- that, seems to 21 me, has to be questionable. 22 DR. MICHAEL POLLANEN: Well, I -- I 23 believe they're the physicians involved in Gaurov's 24 admission to hospital. 25 MR. JAMES LOCKYER: Well, the -- you
1051 might say that, but I'm not sure if that's true of Dr. 2 Driver, but when you're talking about SCAN coordinators, 3 and social work students, and social workers, and nurses, 4 I mean, do they really have a role to play, sir, in 5 whether or not a homicide is being dealt with, as opposed 6 to a natural death? 7 Isn't that something that should be 8 addressed, at least in this group, by Dr. Smith and Dr. 9 Smith only; even if he's not a forensic pathologist he's 10 still the one (1) person who should have had the 11 authority in that meeting? 12 DR. MICHAEL POLLANEN: You'll have to ask 13 the people in the meeting -- 14 MR. JAMES LOCKYER: Mm-hm. 15 DR. MICHAEL POLLANEN: -- how the meeting 16 unfolded. 17 MR. JAMES LOCKYER: All right. Mr. 18 Commissioner -- 19 COMMISSIONER STEPHEN GOUDGE: You're 20 running out of time. 21 MR. JAMES LOCKYER: Well, I -- I could 22 make an application for more, but I won't, so. 23 COMMISSIONER STEPHEN GOUDGE: I don't 24 think it would be successful. 25 MR. JAMES LOCKYER: No, nor do I, that's
1061 why I won't. I -- I have some common sense. Thank you 2 very much, gentlemen. Those are my questions. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 4 Lockyer. 5 Mr. Gover...? 6 7 CROSS-EXAMINATION BY MR. BRIAN GOVER: 8 MR. BRIAN GOVER: Gentlemen, I have a -- 9 very few questions for you. 10 I'll turn first to you, Dr. Pollanen, and 11 in questioning you, Mr. Ortved suggested that the result 12 of the Smith Review was effectively predetermined. You 13 testified there were categories of cases where the 14 outcome was predictable. 15 My question for you is this, Dr. Pollanen: 16 Did you have any expectations as to what the outcome of 17 the Smith review would be? 18 DR. MICHAEL POLLANEN: An overall view 19 about whether the conclusions would be the way they came 20 at the end, no. We did know, however, that embedded 21 within the group, the larger group of review cases, as I 22 have documented in our subcommittee minutes, that it was 23 predictable that we would, essentially, rediscover the 24 shaken baby issue that was highlighted by the Goldsmith 25 Review. That was -- that in -- that outcome was
1071 predictable. 2 And it is true that the case -- some cases 3 were included in the study in which conclusions had 4 already been drawn by other experts that led to a 5 different view that -- that Dr. -- than Dr. Smith. So, 6 in my view, those are -- those are two (2) subsets in 7 which there are some -- some prediction can be made, but 8 they do not represent a predetermined outcome of the 9 entire review. 10 MR. BRIAN GOVER: Dr. McLellan, you told 11 Mr. Ortved that Dr. Smith was not consulted in either the 12 Smith Review or the review of the work of the coroners 13 involved in those cases. You also agreed that Dr. Smith 14 was not a participant in either of those two (2) reviews. 15 My question for you, Dr. McLellan, is 16 this: Was Dr. Smith given an opportunity to participate 17 in the Smith Review? 18 DR. BARRY MCLELLAN: To my recollection, 19 there was no invitation for Dr. Smith to participate 20 directly in the review. A letter was received by his 21 counsel or but -- from his counsel. This was referred 22 to, in evidence, earlier this week. 23 MR. BRIAN GOVER: Perhaps I could 24 interrupt you for a moment and ask that PFP139919 be 25 projected, please, Mr. Registrar.
1081 DR. BARRY MCCLELLAN: Do you have a tab 2 number, Mr. Gover? 3 MR. BRIAN GOVER: And I don't. 4 MR. ROBERT CENTA: I'll get that. Carry 5 on. 6 7 CONTINUED BY MR. BRIAN GOVER: 8 MR. BRIAN GOVER: Mr. Centa will provide 9 it shortly though. 10 So, pardon me for interrupting, Dr. 11 McClellan. You had said that to your recollection, a 12 letter had been received. And if, perhaps, you could go 13 to the next page, please, Mr. Registrar. 14 MS. LUISA RITACCA: It's actually 139919. 15 MR. BRIAN GOVER: There we are. Thank 16 you. 17 MR. ROBERT CENTA: That's Tab P, Mr. 18 Gover. 19 MR. BRIAN GOVER: Tab P. 20 COMMISSIONER STEPHEN GOUDGE: Thank you. 21 22 CONTINUED BY MR. BRIAN GOVER: 23 MR. BRIAN GOVER: And, Dr. McClellan, you 24 were in the course of telling us about a letter received 25 by, as I understand it, the Office of the Chief Coroner.
1091 Is that correct? 2 DR. BARRY MCCLELLAN: Correct. 3 MR. BRIAN GOVER: And this then is the 4 letter that we have before us now; November 3rd, 2005 5 from Ms. Langford (phonetic) to Mr. O'Marra. 6 Is that correct? 7 DR. BARRY MCCLELLAN: Correct. 8 MR. BRIAN GOVER: Reflecting what might 9 be described as some -- some input into the review. 10 Is that right? 11 DR. BARRY MCCLELLAN: Yes, that -- that's 12 correct. And in the second paragraph of the letter on 13 the first page, if I could draw your attention to a few 14 lines in the second paragraph: 15 "We wish to confirm that Dr. Smith is 16 willing to cooperate in any way with 17 the review, although he understands the 18 necessity of an independent and 19 objective review. Should you wish any 20 assistance, please do not hesitate to 21 contact me directly." 22 As I indicated in evidence earlier this 23 week, the six (6) points identified on pages 1 and 2 were 24 considered as part of the review. 25 A discussion did take place at the larger
1101 Forensic Services Advisory Committee with respect to the 2 appropriateness or inappropriateness of Dr. Smith 3 actually participating directly in the review. And it 4 was a consensus opinion that he should not participate 5 directly beyond the considerations that were in this 6 letter. 7 MR. BRIAN GOVER: Thank you. And, Dr. 8 McLellan, Mr. Ortved established that in eleven (11) of 9 the forty-five (45) cases, insufficient information was 10 given to Dr. Smith by coroners. And what -- you might be 11 assisted in answering the next question, by reference to 12 PFP137412. 13 And my question, Dr. McLellan, is: What 14 were the parameters of the review conducted by Drs 15 Lauwers and Edwards? 16 DR. BARRY MCLELLAN: The purpose is 17 outlined. It was to review the coroner's death 18 investigation and its possible role on Dr. Smith's 19 examinations and conclusions. The goals are itemized one 20 (1) through four (4). 21 It was to determine what information the 22 coroner provided to Dr. Smith, whether or not the coroner 23 appropriately integrated Dr. Smith's findings into the 24 final coroner's investigation statement, whether any 25 significant concerns about the coroner's actions can be
1111 identified, and whether the identified concerns may have 2 impacted on Dr. Smith's conclusions. 3 MR. BRIAN GOVER: And then the items for 4 review were listed and -- and there are five (5) in 5 number and they are at the bottom of the page, under 6 "objectio -- objectives," it that correct? 7 DR. BARRY MCLELLAN: Correct. 8 MR. BRIAN GOVER: And I note that these 9 include the coroner's warrant for autopsy, the police 10 report, the coroner's investigation statement, Dr. 11 Smith's autopsy report, and conclusions of the 12 independent reviewer. 13 Is that correct? 14 DR. BARRY MCLELLAN: Correct. 15 MR. BRIAN GOVER: Now, Dr. Pollanen, 16 could failure to complete the warrant for autopsy impact 17 on the errors made by Dr. Smith in misinterpreting his 18 pathology findings? 19 DR. MICHAEL POLLANEN: Yes. 20 MR. BRIAN GOVER: In what way? 21 DR. MICHAEL POLLANEN: The ultimate 22 pathologic diagnosis is through correlation with the 23 history and one of the vehicles of providing history to 24 the pathologist is the coroner's warrant. 25 MR. BRIAN GOVER: Right. And you
1121 understand, and this is by reference to PFP137410 -- 2 MR. ROBERT CENTA: Tab 109. 3 4 CONTINUED BY MR. BRIAN GOVER: 5 MR. BRIAN GOVER: -- Tab 109, Dr. 6 Pollanen -- that the reviewers, Drs. Lauwers and Dr. 7 Edwards, concluded that the identified concerns -- well, 8 they -- they answer that in none of the cases did the 9 identified concerns -- could they have impacted on Dr. 10 Smith's conclusions. 11 You see that as Item Number 4 in the 12 summary? 13 DR. MICHAEL POLLANEN: Yes, I do. 14 MR. BRIAN GOVER: Do you have any reason 15 to disagree with their conclusion in that respect? 16 DR. MICHAEL POLLANEN: I have not 17 undertaken a review independently. 18 MR. BRIAN GOVER: Okay. Dr. McClellan, 19 in your view, was external review of the work of the 20 coroners really an option? 21 DR. BARRY MCCLELLAN: It was not, for a 22 few reasons. I couldn't determine easily who would be 23 readily available and appropriate with an understanding 24 of the Ontario coroner's system, and as well, there was 25 some time pressure in order to complete this,
1131 appropriately complete it, but complete it, because of my 2 goal to try to publically announce the results of the 3 Smith Review. 4 Dr. Lauwers and Edwards, in my opinion, 5 conducted an independent and objective review. 6 MR. BRIAN GOVER: And, Dr. Pollanen, Mr. 7 Sokolov asked you questions about quality assurance, and 8 in particular, quality assurance for pathologist's 9 testimony in court. 10 Can you comment on the role of other 11 participants in the criminal process, including Crown and 12 defence lawyers and pathologists called by the other 13 party in promoting quality assurance? 14 DR. MICHAEL POLLANEN: Yes, I think it 15 goes to the fact that the Criminal Justice system has 16 multiple participants and we're all unified in our goal 17 to provide the best information, the best knowledge, to 18 promote justice. And on that basis there is, in my view, 19 a shared responsibility for quality. 20 MR. BRIAN GOVER: Dr. Pollanen, you told 21 Mr. Sokolov that filtering out information that is 22 extraneous to your fact-finding role as a pathologist is 23 a training issue. 24 Do you recall that? 25 DR. MICHAEL POLLANEN: Yes, I -- I
1141 remember discussing training and also indicated that this 2 was highly correlated with judgment. 3 MR. BRIAN GOVER: And you are responsible 4 for training a Fellow currently, is that correct? 5 DR. MICHAEL POLLANEN: Yes. 6 MR. BRIAN GOVER: And in your role in 7 mentoring the Fellow who is training under you, what do 8 you do to instill in him in terms of filtering out 9 extraneous information? How do you teach judgment? 10 DR. MICHAEL POLLANEN: It's actually a 11 her. 12 COMMISSIONER STEPHEN GOUDGE: So there. 13 14 CONTINUED BY MR. BRIAN GOVER: 15 MR. BRIAN GOVER: So there. I won't make 16 that mistake again, thank you. 17 DR. MICHAEL POLLANEN: Well, I -- we have 18 several processes for that and I'll tell you my -- my own 19 view about how that's best achieved in training. And -- 20 and I -- permit me just to digress for a moment to 21 describe this because I think this is actually a critical 22 issue, and that is that the process -- the quality 23 process -- for forensic pathology in the Toronto Forensic 24 Pathology Unit starts at 8:30 in the morning. 25 And what we do at 8:30 in the morning is
1151 we bring the regional coroners, all pathologists, 2 investigating coroners are -- sometimes attend as well, 3 and other staff involved in the death investigation to 4 the main autopsy room. 5 And we do two (2) things at that time. We 6 review cases from the previous day by discussion, as well 7 as cases of a homicidal or criminally suspicious nature 8 from the regional units. And then we walk through the 9 morgue with the bodies laid out on stretchers and we 10 discuss, as a group, the approach to the autopsy. 11 And our discussions have two (2) sort of 12 major paths: one (1) is educational and the other is 13 practical, because we have to get the work done. So we - 14 - we essentially look at the information that we're 15 given. We come to a conclusion about how that 16 information would inform how we perform, essentially, 17 steps 2, 3 and 4. 18 Then, there's an educational component 19 which is, for example, what type of information from the 20 police report is relevant, what type is -- what is not 21 relevant; what has the coroner provided to us? Is it 22 contradictory or complementary to the police report? 23 What information do we lack? Do we need to get more 24 information to support our process? 25 Sometimes the conclusion is we will not
1161 proceed with the autopsy until we get that information. 2 Sometimes we say it will be adequate to get that 3 information as long as it's provided on the same day. 4 So there -- that is 8:30 in the morning. 5 It's the first item of business. 6 This, in my view, really goes to 7 augmenting whatever judgment you have on these issues. 8 The second part of this happens at the end 9 of the Fellow's post-mortem. 10 COMMISSIONER STEPHEN GOUDGE: Before you 11 go to that: Is the practice you just described one you 12 introduced as Chief Forensic Pathologist? 13 DR. MICHAEL POLLANEN: The practice -- 14 the answer is yes. The practice prior was to sit in a 15 meeting room and have the morning meeting based upon 16 documents. 17 COMMISSIONER STEPHEN GOUDGE: All right. 18 DR. MICHAEL POLLANEN: I -- I added the 19 dimension of going to the post-mortem room because the 20 additional piece of information was the external 21 appearance of the body. And it is my view that forensic 22 pathology should always be practised around the unit of 23 analysis, which is the dead body. So that's why I -- 24 when I came I, sort of, refocused our attention into the 25 mortuary.
1171 And I'll just pause and say one thing. I 2 think you can see how, for example, the Sharon case might 3 have unfolded quite differently in that context. 4 So now, it will come to the second step in 5 the judgment issue and that is, at the end of the 6 fellow's post-mortem, so the Fellow has now transited 7 through steps 1, 2 and 3. 8 I come down to the PM room, the post- 9 mortem room, and we have a discussion about the 10 appearances of the organs to the naked eye. We discuss 11 the nature of ancillary testing that should be performed. 12 And then the last question I ask the Fellow is: How 13 shall we give the cause of death? And that question, 14 essentially is: Is it pending today or not? 15 And if it's pending, then the paperwork is 16 filled out as pending. If we give the cause of death at 17 the time, we just identify the ancillary testing that we 18 will be using to corroborate the case. 19 So there are two (2) elements in -- in 20 the, sort of, the daily training of the Fellow that go to 21 that judgment issue. The first is in the morning round 22 and the second is in the putting-it-all-together phase at 23 the end of the post-mortem. 24 MR. BRIAN GOVER: And the judgment 25 obviously plays a role in the filtering that you've been
1181 discussing as well? 2 DR. MICHAEL POLLANEN: Yes. And that -- 3 that is accomplished, really at all steps in the post- 4 mortem, but principally in the first instance, when we're 5 looking at the information coming from the coroner and 6 from the police and other sources that might provide it. 7 MR. BRIAN GOVER: Now, Dr. Pollanen, Ms. 8 Greene asked you a series of questions about differences 9 in opinion among pathologists. Can you comment on the 10 benefits of early communication between experts on a 11 case? 12 DR. MICHAEL POLLANEN: I think that 13 enhances a good outcome. And in my experience, in fact, 14 the later -- the -- the greater the delay in the 15 communication among experts, the greater the potential 16 problems are. And this has to do with a -- with a number 17 of issues, but -- but I think that's generally true. 18 That's -- that's not to say, however, if a 19 defence pathologist is engaged, for example, on the eve 20 of trial that there is not benefit of the defence 21 pathologist and the original pathologist communicating 22 about issues. 23 MR. BRIAN GOVER: How best do we 24 facilitate early communication between pathologists, 25 then?
1191 DR. MICHAEL POLLANEN: Well, there are 2 two (2) issued -- there are two (2) ways of doing it. 3 First is reciprocal disclosure. 4 The second way of doing it is to -- it 5 puts -- this is putting the onus on the defence 6 pathologist, to obtain an agreement from the lawyer that 7 is instructing the pathologist for permission to directly 8 communicate with the original pathologist. And in this 9 way you can identify common ground in areas where there 10 is -- where there is a significant dispute. 11 And the -- then the issues that are 12 presented at trial may revolve around precisely the area 13 that the cross-examinations need to be focussed on. It 14 also gives an -- an opportunity to engage further 15 testing, if necessary. 16 COMMISSIONER STEPHEN GOUDGE: In your 17 experience, does that happen often? 18 DR. MICHAEL POLLANEN: It does not happen 19 often, no. 20 COMMISSIONER STEPHEN GOUDGE: Fingers of 21 one (1) hand, I mean does that... 22 DR. MICHAEL POLLANEN: Yes. 23 24 CONTINUED BY MR. BRIAN GOVER: 25 MR. BRIAN GOVER: And Dr. McClellan, you
1201 testified that although the attendance at the death scene 2 may be delegated to a police officer, by legislation the 3 coroner remains in charge of the death investigation. 4 And you disagreed with Mr. Falconer's suggestion that 5 there was no need for a physician to be involved. 6 How can a coroner contribute to a high- 7 quality death investigation despite their inability to 8 attend at the scene? 9 DR. BARRY MCCLELLAN: The scene 10 investigation is only part of a coroner's investigation. 11 The coroner may, under such circumstances, order an 12 autopsy. He may have an opportunity later to review 13 photographs, other documentation, may decide to seize 14 medical records and review medical records. So there's 15 many materials and information that a coroner may 16 consider in -- in answering the five (5) questions, and 17 where appropriate, generating recommendations. 18 And the scene visit is important, but 19 there's much else for the coroner to consider. 20 MR. BRIAN GOVER: Now, Mr. Lockyer asked 21 a series of questions about whether the Office of the 22 Chief Coroner should take the lead in post-conviction 23 case reviews. 24 And perhaps I'll ask the registrar to turn 25 up, please, the Valin overview report, which is 144327,
1211 and Mr. Registrar, if you could go to page 70, please. 2 3 (BRIEF PAUSE) 4 5 MR. BRIAN GOVER: And we have this in 6 some measure in paragraph 136, Dr. McClellan. 7 COMMISSIONER STEPHEN GOUDGE: I'm sorry, 8 136? 9 MR. BRIAN GOVER: Yes. 10 11 CONTINUED BY MR. BRIAN GOVER: 12 MR. BRIAN GOVER: And my question, Dr. 13 McLellan is: Can you explain how the review regarding 14 Valin's case came about? 15 DR. BARRY MCLELLAN: Yes, the original 16 request from Mr. Downes was to assist with obtaining 17 materials: slides, tissue blocks. As a result of having 18 found some slides, but not all, I requested that Dr. 19 Pollanen assist with cataloguing the slides. 20 In doing so, he made an observation and 21 raised a concern to me with respect to what was 22 correlated in his examination -- the correlation between 23 what he found and what was in the autopsy report. That 24 concern was brought to the attention of Mr. Downes, and 25 as result of that he requested that the case be reviewed.
1221 MR. BRIAN GOVER: And that, then, Dr. 2 Pollanen, if we turn to page 73 and paragraph 144. 3 That then led you to conduct a review and 4 prepare a report, is that correct? 5 DR. BARRY MCLELLAN: That's correct, yes. 6 MR. BRIAN GOVER: And, Dr. McLellan, you 7 suggested that discussion of Gaurov's case, for example, 8 could usefully take place at the Forensic Services 9 Advisory Committee. 10 Is that correct? 11 DR. BARRY MCLELLAN: I believe what I had 12 suggested was that whether such a review would take place 13 in such a case is a matter that could go forward to the 14 Forensic Services Advisory Committee; that the decision 15 about whether or not to conduct such a review and where 16 it should be conducted and where the lead should come 17 from are matters that would be appropriately discussed at 18 the Forensic Services Advisory Committee. 19 MR. BRIAN GOVER: Right. And, Dr. 20 Pollanen, you've met with Mr. Lockyer on many occasions, 21 is that correct? 22 DR. MICHAEL POLLANEN: Several, yes. 23 MR. BRIAN GOVER: And would that be the 24 same for you Mr. -- Dr. McClellan? 25 DR. BARRY MCCLELLAN: Yes.
1231 MR. BRIAN GOVER: And has either of you - 2 - I'll turn first to you, Dr. McClellan -- refused to 3 meet with Mr. Lockyer? 4 DR. BARRY MCCLELLAN: No. 5 MR. BRIAN GOVER: Dr. Pollanen...? 6 DR. MICHAEL POLLANEN: No. 7 MR. BRIAN GOVER: You've -- Dr. Pollanen, 8 in particular, you've exchanged ideas with Mr. Lockyer 9 about the role of forensic pathology in the criminal 10 justice system. 11 Is that fair? 12 DR. MICHAEL POLLANEN: Yes. 13 MR. BRIAN GOVER: And you've discussed 14 the role of the Office of the Chief Coroner and the role 15 of the Chief Forensic Pathologist in the administration 16 of justice with him. 17 Is that fair? 18 DR. MICHAEL POLLANEN: Yes, I have. 19 MR. BRIAN GOVER: And my question to you 20 then, Dr. Pollanen, is: Before yesterday did Mr. Lockyer 21 ever suggest to you that the Office of the Chief Coroner 22 should take the lead in post-conviction relief processes? 23 DR. MICHAEL POLLANEN: Mr. Lockyer has a 24 tendency to be very protean on these issues. 25 MR. BRIAN GOVER: Thanks for the warning.
1241 DR. MICHAEL POLLANEN: But I -- I'm sure 2 that issue has been raised in discussion. 3 MR. BRIAN GOVER: Thank you very much. 4 Those are my questions. 5 COMMISSIONER STEPHEN GOUDGE: Finally, 6 Ms. Rothstein. 7 8 RE-EXAMINATION-IN-CHIEF BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Thank you, 10 Commissioner, very briefly. Just one (1) question, Dr. 11 Pollanen. I know you're coming back on December the 5th 12 and 6th, but it arises out of Mr. Gover's questions to 13 you about the Sharon case. And your comment, as I 14 understood it, that based on how rounds are conducted 15 today, the conclusions in that case might have been 16 differently. 17 Did I understand your evidence correctly? 18 DR. MICHAEL POLLANEN: Yes. 19 MS. LINDA ROTHSTEIN: Can you just 20 elaborate on that please for us? 21 DR. MICHAEL POLLANEN: Well the -- the 22 issue in the Sharon case revolves essentially around 23 correlation of autopsy findings on external examination 24 in the history. And the round process is a way of 25 marrying the two (2).
1251 So, it represents a very good opportunity 2 to explore what became to be the issue in the Sharon 3 case, which is dog bites versus sharp force injuries. 4 So that -- the round process is a very 5 good way of bringing that issue out, and then deciding on 6 what types of information or approaches might be useful 7 to deal with the question. 8 MS. LINDA ROTHSTEIN: And do I understand 9 you to be suggesting that the round process is one in 10 which there's a lot of proving -- probing about exactly 11 what the history is? 12 DR. MICHAEL POLLANEN: Yes. 13 MS. LINDA ROTHSTEIN: And a comparison of 14 that history with the pathological findings? 15 DR. MICHAEL POLLANEN: Correct. 16 MS. LINDA ROTHSTEIN: All right. Mr. 17 Sandler may well want to probe that with you further upon 18 your return. 19 And indeed, Commissioner, I anticipate 20 that throughout this inquiry we will spend some time 21 dealing with the issue that Mr. Lockyer could only touch 22 on in his latter questions of Dr. Pollanen, which is to 23 say the interface between CAS and the Death Investigation 24 Team and the role of the SCAN team in the death 25 investigation process.
1261 But if I might just direct you, 2 Commissioner, to the Gaurov overview report which you'll 3 have at Tab 6 of your binder. And, Registrar, it's 4 143864. 5 I'll just ask you to note that Mr. 6 Lockyer, of course, took you to paragraph 47 of that 7 overview report which records the attendees at the March 8 26th, 1992 case conference of the SCAN team and ask you 9 to take note of the fact that at paragraph 36 of the 10 overview report, it is recorded: 11 "Due to suspicions about his death, 12 Gaurov's brother was apprehended by the 13 Toronto Children's Aid Society, CAS, on 14 March 20th, 1992." 15 Dr. Pollanen, I don't need you to comment 16 on that. As I say, I anticipate that Mr. Sandler will 17 have some questions for you about the parameters of the 18 role of the SCAN Team in the death investigation process 19 and the interface with CAS when you return. 20 Commissioner, I have no further questions. 21 Unless you have further business, I think we can finally 22 excuse Dr. McLellan, but say adieux only temporarily to 23 Dr. Pollanen. 24 COMMISSIONER STEPHEN GOUDGE: As we do 25 so, let me simply say that I'm enormously grateful to
1271 both of you for the time and thought you have shared with 2 us this week. 3 Dr. Pollanen, you'll be back; Dr. 4 McLellan, you won't, but we wish you well at Sunnybrook. 5 DR. BARRY MCLELLAN: Thank you, 6 Commissioner. 7 COMMISSIONER STEPHEN GOUDGE: We'll rise 8 now until 9:30 on Monday. 9 10 (DR. BARRY MCLELLAN STANDS DOWN) 11 (DR. MICHAEL POLLANEN RETIRES) 12 13 --- Upon adjourning at 12:14 p.m. 14 15 Certified Correct, 16 17 18 19 ___________________ 20 Rolanda Lokey, Ms. 21 22 23 24 25