1 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 20th 2007 25

2
  1                        Appearances
  2  Linda Rothstein            )     Commission Counsel
  3  Mark Sandler               )
  4  Robert Centa     (np)     )
  5  Johnathan Shime            )
  6  
  7  Luisa Ritacca              )     Office of the Chief Coroner
  8  Brian Gover      (np)     )     for Ontario
  9  Teja Rachamalla   (np)     )
 10  
 11  Jane Langford              )     Dr. Charles Smith
 12  Niels Ortved               )
 13  Erica Baron      (np)     )
 14  Grant Hoole      (np)     )
 15   
 16  William Carter              )   Hospital for Sick Children
 17  Barbara Walker-Renshaw  (np) )
 18  Kate Crawford               )
 19  
 20  Paul Cavalluzzo  (np)       )   Ontario Crown Attorneys'
 21                                   Association
 22  
 23  Mara Greene      (np)      )    Criminal Lawyers'
 24  Breese Davies    (np)     )     Association
 25  Joseph Di Luca   (np)     )

3
  1                   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          )
  8  Daniel Bernstein (np)     )
  9  
 10  Louis Sokolov    (np)     )     Association in Defence of
 11  Vanora Simpson            )     the Wrongly Convicted
 12  
 13  Jackie Esmonde    (np)     )     Aboriginal Legal Services 
 14  Kimberly Murray            )     of Toronto and Nishnawbe
 15  Sheila Cuthbertson         )     Aski-Nation
 16  Julian Falconer  (np)     )
 17  
 18  Suzan Fraser                     Defence for Children 
 19                                   International - Canada
 20  
 21  William Manuel   (np)     )     Ministry of the Attorney
 22  Heather Mackay   (np)     )     General for Ontario
 23  Erin Rizok                 )
 24  
 25

4
  1                   APPEARANCES (cont'd)
  2  
  3  Natasha Egan     (np)     )     College of Physicians and 
  4  Carolyn Silver   (np)     )     Surgeons
  5  
  6  Michael Lomer    (np)     )     For Marco Trotta
  7  
  8  
  9  
 10  
 11  
 12  
 13  
 14  
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1 TABLE OF CONTENTS 2 Page No. 3 4 CHRISTOPHER MARK MILROY, Resumed 5 JACK CRANE, Resumed 6 JOHN BUTT, Resumed 7 8 Continued Examination-In-Chief by Mr. Mark Sandler 6 9 10 11 Certificate of transcript 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:29 a.m. 2 3 REGISTRAR: All rise. Please be seated. 4 COMMISSIONER STEPHEN GOUDGE: Good 5 morning. 6 MR. MARK SANDLER: Good morning, 7 Commissioner. 8 COMMISSIONER STEPHEN GOUDGE: Mr. 9 Sandler...? 10 11 CHRISTOPHER MARK MILROY, Resumed 12 JACK CRANE, Resumed 13 JOHN BUTT, Resumed 14 15 CONTINUED EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 16 MR. MARK SANDLER: Commissioner, we are 17 going to be continuing with the Nicholas matter and 18 Professor Crane. 19 And I'll ask Professor Crane, if he would, 20 to move to Tab 17 of his binder, which is his medical- 21 legal report. This is 135519 at page 4. 22 Now, Professor Crane, you'll recall that 23 when we left off you had advised the Commissioner that as 24 a result of concerns expressed by the Regional Coroner, 25 this matter was referred to the Paediatric Death Review

1 Committee and Dr. Smith was designated as the individual 2 who would engage in that review. Do you remember that? 3 DR. JACK CRANE: Yes, I do. 4 MR. MARK SANDLER: And you also advised 5 the Commissioner of some concern about the -- the 6 different characterization by Dr. Smith in an affidavit 7 of what the copy radiographs showed as opposed to Dr. 8 Babyn's report that we went to a little bit earlier. 9 DR. JACK CRANE: That's correct. 10 MR. MARK SANDLER: Now I want to move to 11 Dr. Smith's consultation report itself if I may and 12 you've summarized its contents at the top of page 4 of 13 your own medical-legal report. 14 Could you please advise the Commissioner 15 what Dr. Smith had to say in his consultation report, and 16 I'll ask you to do it both from the perspective of 17 describing in lay terms what it is that he found and your 18 comments upon their significance. 19 DR. JACK CRANE: Dr. Smith said in his 20 report: 21 "The most significant findings at 22 autopsy review relate to the central 23 nervous system. The weight of the 24 brain is significantly greater than 25 expected supporting a diagnosis of

1 cerebral edema or brain swelling, which 2 was evident on microscopic examination 3 of the brain. 4 The finding of separation of skull 5 sutures on radiographic examination 6 provides further evidence as does the 7 increased head circumference." 8 And I think I explained, Commissioner, 9 that in infants and young children, if the brain does 10 swell the sutures can separate and the head circumference 11 can increase. 12 "The presence of extravasated 13 erythrocytes or red blood cells in the 14 subarachnoid space may represent 15 subarachnoid hemorrhage." 16 Just to explain what the subarachnoid 17 space is. I mentioned yesterday the dura, which is the 18 tough layer over the brain. Below that, there is a very 19 thin translucent layer to which the brain is -- which is 20 actually stuck onto the surface of the brain. 21 We have a material at home called cling 22 film; I don't know whether you have something similar in 23 -- in Canada. They fi -- 24 COMMISSIONER STEPHEN GOUDGE: It's a bit 25 graphic description.

1 DR. JACK CRANE: It's -- it's very fine, 2 translucent; you would use it to perhaps wrap up 3 sandwiches and -- and that sort of thing. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: The risk of 7 advertising for a particular company, we call it Saran 8 Wrap, I believe. 9 DR. JACK CRANE: The arachnoid is like 10 that. It's very closely applied to the brain surface, 11 and it's completely translucent -- tra -- transparent, 12 sorry; it's completely clear. 13 So, what Dr. Smith is saying is that there 14 were some red cells beneath that layer which might 15 suggest bleeding in that space. He then goes on to say 16 herniation of the brain stem would accompany such changes 17 and would be a terminal event. 18 Now, I think what he's saying there is 19 that if the brain was swollen, what he would expect to 20 happen is that you would get herniation of the brainstem. 21 And how that happens is; you consider the brain is 22 contained inside a -- the cranium which is sealed and the 23 only way -- if the brain swells, anyplace for it to go is 24 down through the -- the hole in the base of the -- the 25 skull. And that's what we call herniation of the brain,

1 and when that occurs that can be a fatal event. 2 The CNS changes could have occurred by 3 trauma or on a hypoxic-ischemic basis and what we mean by 4 that, hy -- hypoxic-ischemic, is that if the brain is 5 starved of -- of oxygen. A traumatic etiology is 6 supported by the finding of scalp swelling by the coroner 7 and a mandibular fracture. 8 Actually, I didn't quite understand that. 9 First of all, there was no evidence of scalp swelling 10 that was described by the original -- by the original 11 pathologist, so I'm not quite sure why he's referring to 12 the coroner. And he refers to the mandibular fracture, 13 and of course, the radiologist only raised the suspicion 14 of a mandibular fracture; he didn't actually conclude 15 that there was one. 16 He goes on to say the presence of thoracic 17 petechiae suggest a terminal asphyxia; whether this 18 proceeded or was caused by the cerebral edema cannot be 19 determined. Of significance is the absence of any 20 underlying disease processes. 21 The autopsy does not conclusively exclude 22 the possibility of preexisting traumatic injuries. In 23 the absence of an alternative explanation, the death of 24 this young boy is attributed to blunt head injury. 25 MR. MARK SANDLER: Can you explain to the

1 Commissioner, a) how Dr. Smith appears to move from the 2 findings that you've cited to the conclusion that in the 3 absence of an alternative explanation the death of this 4 young boy is attributed to blunt head injury? 5 DR. JACK CRANE: Well, no, I -- I can't 6 because I couldn't move to that proposition. What we 7 have or what has been postulated is that the brain might 8 be swollen. Now, I -- I think as I've indicated in my 9 evidence earlier to the Commissioner, brain swelling can 10 occur for a number of reasons, of which trauma may only 11 be one (1). 12 And I think what Dr. Smith is suggesting 13 is that there doesn't appear to be any other cause for 14 the swelling, so therefore, he's attributing it to 15 trauma. The concern I have about that is that we have no 16 evidence of trauma in -- in the form of scalp bruising or 17 -- or skull injury, so again, it's -- it's a leap which I 18 think is -- is inappropriate to take. 19 MR. MARK SANDLER: What about the 20 presence of red blood cells in the subarachnoid space? 21 Does that provide any support, in your view, for the 22 proposition that the death of that young boy was 23 attributed to blunt head injury? 24 DR. JACK CRANE: No. The original 25 pathologist examined the brain and did not find any

1 evidence of a subarachnoid haemorrhage. The fact that 2 you get a few blood cells leaking out is -- it's quite 3 common and is of no significance whatsoever. 4 If there had been significant subarachnoid 5 bleeding, that would have been seen and reported upon by 6 Dr. Chan. 7 COMMISSIONER STEPHEN GOUDGE: Dr. Crane, 8 is it ever appropriate to diagnose by exclusion this way? 9 DR. JACK CRANE: Well, again, you can 10 certainly perhaps raise a possibility that a head injury 11 might be one (1) caused, but I don't think that unless 12 you're able to rule everything out conclusively, that you 13 should simply then say, because I haven't found anything 14 else that it's -- it's trauma. 15 I think that's -- that's misleading. 16 COMMISSIONER STEPHEN GOUDGE: So you'd 17 have to get to the point of ruling out conclusively ever 18 other conceivable reason for, in the case, the brain 19 swelling? 20 DR. JACK CRANE: That's right, and -- and 21 as I think I -- I indicated earlier, brain swelling is 22 such a -- a common term of event that really it -- it 23 doesn't have any great significance at all. 24 You -- simply the fact that you stopped 25 during the dying process causes your brain to -- to

1 swell. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. So -- so 5 the brain swelling is non-specific, the presence of red 6 blood cells in the subarachnoid space were -- were -- was 7 not observed by the original pathologist performing the 8 autopsy and -- 9 DR. JACK CRANE: Well -- well 10 subarachnoid hemorrhage wasn't -- I mean a few blood 11 cells is neither here nor there. 12 MR. MARK SANDLER: All right. 13 DR. JACK CRANE: But significant 14 subarachnoid hemorrhage was not described by the original 15 pathologist. 16 MR. MARK SANDLER: Jumping down for a 17 moment, he says, 18 "The traumatic etiology is supported by 19 the finding of scalp swelling". 20 And did you see any evidence of scalp 21 swelling? 22 DR. JACK CRANE: Well the original 23 pathologist did not mention any evidence of scalp 24 swelling or indeed bruising of the scalp. 25 MR. MARK SANDLER: All right. And then

1 the mandibular fracture you've already addressed that -- 2 that we had at it's highest at that point in time, the 3 opinion that a mandibular fracture was suspected? 4 DR. JACK CRANE: Yes, I think Dr. Babyn 5 said he -- he was suspicious of it, but he -- he wasn't 6 by no means saying that there was a definite mandibular 7 fracture. 8 MR. MARK SANDLER: And we'll get there, 9 but you did see some evidence in the documents that 10 subsequently Dr. Babyn was re-engaged and examined x-rays 11 that were taken after the exhumation? 12 DR. JACK CRANE: Yes. 13 MR. MARK SANDLER: And did he form an 14 opinion as to the presence of a mandibular fracture as a 15 result of the further work done post-exhumation? 16 DR. JACK CRANE: Yes, he confirmed that 17 there was no mandibular fracture and, indeed, Dr. Smith 18 himself was able to observe the mandible and find no 19 fracture. 20 MR. MARK SANDLER: All right. So when I 21 asked you the question a little earlier about how do we 22 get to the bottom line from -- that's expressed by Dr. 23 Smith? I'm -- I'm interested in one (1) other passage in 24 the consultation report, and that is: 25 "The CNS [and that's the central

1 nervous system] changes could have 2 occurred by trauma or on a hypoxic 3 ischemic basis." 4 Is that compatible with the conclusion at 5 the end of the piece? 6 DR. JACK CRANE: Well it seemed to me 7 from reading that, you'll notice that Dr. Smith is also 8 referring to terminal asphyxia, so I think that he's 9 suggesting as well that perhaps the brain swelling is 10 caused by an asphyxial event causing the brain to be 11 deprived of oxygen. 12 And he's using the presence of the 13 thoracic petechiae to support that. 14 MR. MARK SANDLER: And you've already 15 addressed in earlier testimony to the Commissioner the 16 concerns about the premise of finding a terminal 17 asphyxial event based upon thoracic petechiae? 18 DR. JACK CRANE: Well I think -- I hope I 19 was maybe more forceful then that. Thoracic petechiae 20 have no significance whatsoever and do not indicate 21 asphyxia. 22 MR. MARK SANDLER: All right. Now if we 23 can move from the consultation report to the autopsy that 24 was subsequently obtained after exhumation. And -- I'm 25 sorry, before doing so, I'll take you very briefly to

1 PFP143263 which is the overview report in this matter, 2 Professor Crane. 3 And if you'd look at page 19 of the 4 overview report, paragraphs 55 and 56. And we see here 5 that -- that according to Dr. Smith's subsequent 6 affidavit and the child protection proceedings, he 7 obtained the original x-rays from the Sudbury General 8 Hospital on January the 28th. 9 And Sargent Keech (phonetic) records in 10 the following paragraph: 11 "Dr. Smith's observation that the two 12 (2) radiologists at Hospital for Sick 13 Children have examined the original x- 14 rays and are not as convinced that 15 there's a fracture of the left mandible 16 as when they examined the copies of the 17 x-rays." 18 Now with that background, perhaps, we can 19 move ahead in the sequence. We see from paragraph 73, 20 page 24, that Dr. Smith produced a report of post-mortem 21 examination dated August the 6th of 1994 -- 1997. His 22 final opinion on the cause of death was cerebral edema 23 consistent with blunt force injury. 24 And if one looks at the following page, 25 page 25, at paragraph 74, it would appear that Dr. Babyn

1 provided a review of the x-ray findings within that 2 report of post-mortem examination. And the last line of 3 the quoted passage within paragraph 74 is: 4 "No definite fracture of the skull, 5 mandible, ribs or visible skeleton is 6 otherwise seen. The post-mortem and 7 soft tissue changes do obscure some 8 bone detail." 9 And we see Dr. Smith's summary of abnormal 10 findings commencing at paragraph 75. And at the top of 11 the following page, page 26, we see: 12 "no evidence of fracture of 13 bone." 14 And that's what you're referring to, I 15 take it, in your earlier testimony about where we were 16 left in terms of the suspected mandibular fracture? 17 DR. JACK CRANE: That's correct. 18 MR. MARK SANDLER: Now Dr. Smith reflects 19 -- and we're still at page 26 of the overview report: 20 "No evidence of fracture of bone; 21 hemorrhagic discolouration of right 22 parietal bone; hemorrhagic 23 discolouration along skull sutures." 24 And then in his notable facts, he says: 25 "The exhumation was undertaken in light

1 of the findings at initial post-mortem 2 examination which revealed cerebral 3 edema as evidenced by brain weight, 4 split skull sutures and increased head 5 circumference. These findings could 6 not be explained by the history 7 available at that time. Repeat 8 microscopic examination of the nervous 9 system suggested that there may also 10 have been an acute hypoxic-ischemic 11 injury. This second post-mortem 12 examination revealed no fracture of 13 bone although the presence of soft 14 tissue injury could not be excluded. 15 Hemorrhagic discolouration was seen 16 along the skull sutures, in keeping 17 with the initial radiographic 18 observation of split sutures. 19 A separate area of hemorrhagic 20 discolouration was found on the right 21 parietal bone. Both the cerebral edema 22 and the parietal discolouration were 23 consistent with blunt force injury. 24 Apart from hypoxic-ischemic changes, 25 which are also enigmatic, no other

1 pathology was found at either the 2 review of the first autopsy or at the 3 second. In the absence of a credible 4 explanation, in my opinion, the post- 5 mortem findings are regarded as 6 resulting from non-accidental injury." 7 Can you take us through his findings, and 8 explain to the Commissioner what it is that they mean and 9 your expert opinion about their reasonableness? 10 DR. JACK CRANE: Well, I think if we go 11 to the second paragraph of his notable facts; Dr. Smith 12 concludes that there was no fracture so I think we can 13 safely say that everyone was agreed at that point that 14 there was no mandibular fracture or there was no fracture 15 of any other bones. 16 He then goes on to say the presence of 17 soft tissue injury could not be excluded. And, quite 18 clearly, this was a re-examination of a body that had 19 been interred for some eighteen (18) months, and 20 obviously that makes the interpretation of soft tissue 21 injury; in other words, bruising and the like, more 22 difficult. 23 But, of course, what we have to take 24 account is that we do have evidence from Dr. Chan that 25 there was no soft tissue injury. Dr. Chan specifically

1 said that there were no external injuries, and he found 2 or did not record the presence of any other injuries. 3 Dr. Smith then refers to hemorrhagic -- 4 MR. MARK SANDLER: Just -- I'm sorry, 5 just stopping there for a moment. 6 This harkens back to some of the questions 7 that the Commissioner was asking you yesterday about 8 terminology of language. 9 You've said that no evidence of soft 10 tissue injury was -- was seen by the original 11 pathologist, and I take it there is no evidence of soft 12 tissue issue that is identified in Dr. Smith's post- 13 mortem report, am I right? 14 DR. JACK CRANE: That's correct. 15 MR. MARK SANDLER: What do you say about 16 the use of the language? 17 "Although the presence of soft tissue 18 injury could not be excluded." 19 DR. JACK CRANE: Well, I -- I think 20 that's true as far as it goes, but I think that comment 21 should also have the rider that this would accord with 22 the fact that there was no evidence of soft tissue injury 23 found at the original post-mortem examination, and, in 24 fact, you might even go further to say that on the basis 25 of that, it would appear that there is no soft tissue

1 injury. 2 But just to say it couldn't be excluded, 3 when quite clearly, it had already been excluded by the 4 first pathologist, I think is misleading. 5 MR. MARK SANDLER: All right. And you 6 were about to go on and deal with the hemorrhagic 7 discolouration. Would you do that, please? 8 DR. JACK CRANE: Yes. Dr. Smith said 9 he'd found a discolouration over the right parietal bone, 10 and that would be the skull bone on the right side of the 11 head above the ear and discolouration along the skull 12 sutures. 13 The -- the inference, I think, and -- and 14 one only can infer -- is that he is suggesting that that 15 discolouration may be indicative of trauma. And you 16 could imagine the situation where if there had been, for 17 instance, trauma to the head and there was bruising 18 beneath the scalp, then you might see discolouration over 19 the -- the skull. 20 But here again, we have to go back to the 21 original autopsy report and Dr. Chan found no evidence of 22 scalp bruising. So, what's this hemorrhagic 23 discolouration? Well, here we have a body that's been 24 subjected to an initial post-mortem examination. The 25 body has been buried. It's been in the ground for

1 eighteen (18) months, and what you're seeing is simply 2 post-mortem staining, artifactual discolouration; it's a 3 very common finding whenever a body has been buried and 4 is subsequently exhumed. 5 It has no significance, whatsoever, and it 6 does not indicate the presence of ante-mortem injury. 7 MR. MARK SANDLER: Then he addresses a 8 separate area of hemorrhagic discolouration found in the 9 right parietal bone. 10 DR. JACK CRANE: And -- and that -- 11 that's the same and probably represents the way the 12 infant wa -- the child was in the co -- or in the -- in 13 the coffin; it might be that the right side of the head 14 was -- was down, but it is purely an artifactual finding. 15 MR. MARK SANDLER: All right. He then 16 notes that both the cerebral edema and the parietal 17 discolouration were consistent with blunt force injury. 18 And stopping there for a moment, the Commissioner has 19 heard a fulsome discussion yesterday about the use of the 20 term "consistent". 21 Do you have some concern in the context of 22 this report as to how consistent would be interpreted by 23 the reader? 24 DR. JACK CRANE: Well, I -- I think the 25 impression one's getting is that -- the fact that you

1 have swelling of the brain and you have discolouration 2 point to a traumatic etiology that this was due to 3 injury. 4 MR. MARK SANDLER: And that's just not 5 so? 6 DR. JACK CRANE: No, they're not 7 consistent with -- with anything at all. 8 MR. MARK SANDLER: All right. And then 9 he says: 10 "Apart from hypoxic-ischemic changes, 11 which are also enigmatic, no other 12 pathology was found in the absence of a 13 credible explanation, in my opinion the 14 post-mortem findings are regarded as 15 resulting from non-accidental injury." 16 How -- how do we get there? 17 DR. JACK CRANE: Well, again, it -- it's 18 a leap too far. I think, even if one, perhaps, conceded 19 that there might be blunt head injury -- and I don't see 20 that there's any evidence of that -- how can you go from 21 saying there's blunt head injury and then saying it's -- 22 it's regard is a non-accident injury. 23 COMMISSIONER STEPHEN GOUDGE: This is a 24 step beyond the blunt force trauma. 25 DR. JACK CRANE: Absolutely. I mean, I

1 could perhaps see if you just said that the swelling and 2 the discolouration might indicate blunt force trauma, but 3 then to say that it's due to a non-accident injury, I -- 4 I think, you know, it's just -- it's beyond the bounds of 5 credibility. 6 MR. MARK SANDLER: And -- and to be 7 clear, are there cases, Professor Crane, in which the 8 nature of the pathology not only supports blunt force 9 injury but enables you to conclude the likelihood that 10 that injury was non-accidental? 11 DR. JACK CRANE: Well, it can be very 12 difficult. There may be certain patterns of injury that 13 may suggest that it was non-accidentally sustained, 14 that's true. But the changes here are so insignificant 15 that, I mean, as I said, even if there was some evidence 16 of injury I -- I don't think you could then say -- take a 17 leap and then say, Okay, we've got some brain injury, 18 we've got some head injury, it must be non-accidentally 19 sustained. 20 COMMISSIONER STEPHEN GOUDGE: Because the 21 finding of non-accidental is so important in the criminal 22 process, Dr. Crane, is there any sort of best practice or 23 accepted practice for forensic pathologists in writing 24 their reports when they get to the point of moving from 25 blunt force trauma to non-accidental, that is -- or is

1 that simply: Where does the evidence take the 2 pathologist? 3 DR. JACK CRANE: Well, as I perhaps 4 indicated earlier, sometimes it can be very difficult to 5 say how a particular injury occurred. But, for instance, 6 if you had evidence of very severe head trauma, perhaps 7 with an underlying fracture of the skull and laceration 8 of the brain, you might be able to say that that 9 particular injury required a considerable amount of force 10 for its infliction. And you might want to say that force 11 could be generated if the head was struck against a hard 12 object or a hard object struck the head. 13 Often one comes to the diagnosis of non- 14 accidental injury because of the -- the combination of 15 injuries. And I think that was perhaps illustrated 16 yesterday with -- with one (1) of Dr. Milroy's cases 17 where we had a combination of injuries and it seemed -- 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: You're talking -- 21 you're now talking about the Jenna case where the issue 22 wasn't whether injuries were inflicted that were non- 23 accidental, but the timing of those injuries? 24 DR. JACK CRANE: Yes. But in that 25 particular case, one could look at that -- those injuries

1 and say that there was no mechanism where they could have 2 been accidentally sustained. 3 Th -- this is a difficult area and 4 pathologists have to be very careful, and often all they 5 can do is say that a particular injury would have 6 required significant force for its infliction and then 7 the decision as to how that was caused may be left to the 8 court. 9 The court may have to cross-examine the 10 pathologist and say, Well, for example, could it have 11 occurred as a result of a fall downstairs? And the 12 pathologist may have to concede yes, it could have. 13 Could it have occurred if the child's head 14 was struck against a hard surface? Yes, it could. 15 And frequently, it's not the pathologist 16 who makes the final decision, that's the decision that 17 the Court has to make. 18 MR. MARK SANDLER: All right. And based 19 upon all of the circumstantial case and not simply the 20 pathology? 21 DR. JACK CRANE: That's right. And one 22 (1) way that might be, for example, is if you had such a 23 severe head injury and the pathologist was told that the 24 explanation given was that the child was lying on the 25 sofa and rolled on to the floor.

1 Now the pathologist might be asked: In 2 your opinion a child rolling on the -- on the floor from 3 a sofa, would that cause the skull fracture that you 4 find? 5 And the pathologist might say: In my 6 opinion that would not account for the severe injury that 7 I found. And, therefore, again he's leaving it open to 8 the court to make their own conclusions based on what the 9 pathologist -- pathologist's opinion is in relation to 10 the severity of the injury. 11 MR. MARK SANDLER: All right. 12 Professor Milroy, you heard the dialogue 13 that's just taken place over the roll of the pathologist 14 as opposed to the circumstantial evidence viewed 15 cumulatively in the case, and -- and I know that -- that 16 you wanted to comment to the Commissioner about his -- 17 his query concerning the use of the term "beyond a 18 reasonable doubt" by pathologists. 19 DR. CHRISTOPHER MILROY: Yes. 20 MR. MARK SANDLER: This seems like an 21 appropriate time to make -- 22 DR. CHRISTOPHER MILROY: Yes -- 23 MR. MARK SANDLER: -- that comment, if 24 you would. 25 DR. CHRISTOPHER MILROY: -- I was

1 thinking that myself as the questioning. 2 It's been my understanding -- and I -- 3 this was once put to me in court, that, of course, the -- 4 beyond reasonable doubt or now in English law "Are you 5 sure?" is a legal standard and it's the case in its 6 entirety that has to be proven beyond reasonable doubt. 7 And as we've heard from the discussion by 8 Dr. Crane, the pathology evidence may not be beyond 9 reasonable doubt, but actually the case can be proven 10 beyond reasonable doubt because of other evidence, and I 11 think that's one (1) reason why I, as a pathologist, am 12 reluctant to use the -- the legal term "beyond reasonable 13 doubt" in placing weight upon the evidence. 14 And the other concern would be, of course, 15 that the pathologist must not use up the function of the 16 jury and give -- try to avoid giving evidence to the 17 ultimate issue, although I understand that that can be 18 permissible in some circumstances. 19 COMMISSIONER STEPHEN GOUDGE: Do you have 20 a set of terms, Dr. Milroy, that you feel more 21 comfortable using to reflect the level of certainty with 22 which you hold an opinion about cause of death? 23 DR. CHRISTOPHER MILROY: Well, I think 24 that one can sometimes say that I am satisfied that, you 25 know, this is the only credible explanation or that I can

1 say I am sure -- I -- I think you can say, I am sure 2 about this piece of evidence. I think it's just that -- 3 COMMISSIONER STEPHEN GOUDGE: Do you use 4 terms like "possible," "probable" -- 5 DR. CHRISTOPHER MILROY: Yes. 6 COMMISSIONER STEPHEN GOUDGE: -- "very 7 probable"? 8 DR. CHRISTOPHER MILROY: Yes, I do use 9 those terms. I -- I -- 10 COMMISSIONER STEPHEN GOUDGE: When you 11 use them, do you have in your head a percentage of 12 possibilities zero (0) to one hundred (100) or anything 13 like that? 14 DR. CHRISTOPHER MILROY: No, I do -- I 15 don't use that and it's -- it is sort of difficult to 16 mathematically quantitate forensic pathology. It just is 17 a -- we recognize this, for example, in terms of a stab 18 wound and the degree of force required to stab somebody. 19 There is some experimental data, but it's 20 experimental; it's not -- and so in fact we -- we come 21 down to a very simplistic score of saying mild, moderate 22 and severe, and you can almost translate that into other 23 -- into -- into possibilities and probabilities on a 24 similar sort of scale. I can't -- 25 COMMISSIONER STEPHEN GOUDGE: I took your

1 view of the case involving the dog bites as being very 2 close to certain. 3 DR. CHRISTOPHER MILROY: Yes. 4 COMMISSIONER STEPHEN GOUDGE: They were 5 not stab wounds -- 6 DR. CHRISTOPHER MILROY: I think -- 7 COMMISSIONER STEPHEN GOUDGE: -- but dog 8 bites. 9 DR. CHRISTOPHER MILROY: That's correct, 10 and I think you can, at times, express those very solid 11 opinions, and I -- I do like the -- I actually think we 12 ought to look more at the way the forensic scientists do 13 it with most -- 14 COMMISSIONER STEPHEN GOUDGE: That sort 15 of terminology. 16 DR. CHRISTOPHER MILROY: -- that sort of 17 terminology. This is -- I -- you know, if you were -- if 18 you -- if you took the dog bite case into their 19 terminology -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. CHRISTOPHER MILROY: -- you would say 22 there is very strong scientific support that these are 23 dog bites. 24 COMMISSIONER STEPHEN GOUDGE: Right. Can 25 I get the comment -- sorry, Mr. Sandler.

1 MR. MARK SANDLER: Oh, right. 2 COMMISSIONER STEPHEN GOUDGE: I'm very 3 interested in the comments of you other two (2) gentlemen 4 about that general approach about articulating levels of 5 certainty of your conclusion. 6 Dr. Crane, you first, and then Dr. Butt. 7 DR. JACK CRANE: Yes, I mean, I -- I 8 think it's important because, of course, our role is to 9 try and help the Court as best we can, and if we can try 10 and convey to the Court how sure or unsure we are of 11 something, I -- I think that -- that can be -- that can 12 be helpful. 13 COMMISSIONER STEPHEN GOUDGE: What 14 terminology is most helpful to do that? 15 DR. JACK CRANE: I think we all use, 16 perhaps, different terminology in doing it. For example, 17 I suppose if you had the case where you had stab wounds 18 and they were obviously stab wounds, I think I would 19 simply say, you know, ths person has been stabbed; these 20 are stab wounds, so there would be no equivocation, there 21 would -- there would be no -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. JACK CRANE: -- there would be no 24 doubt. 25 COMMISSIONER STEPHEN GOUDGE: Right.

1 It's the grey area of cases that are tough to articulate 2 and I guess what I'm getting at is, what kind of language 3 should pathologists -- forensic pathologists -- be 4 looking to in those areas that are hardest to describe 5 with certainty given the way language is understood? 6 DR. JACK CRANE: Well, I sort of think 7 that you -- you probably need to do it two (2) ways. 8 First of all, you might want to des -- describe the 9 mechanism whereby the injury was sustained, so, for 10 example, if it's -- when we're dealing with bruising of 11 the scalp and -- and underlying skull fracture, you may 12 say, This is co -- due to blunt trauma to the head so -- 13 so you're sure that it's blunt trauma to the head. 14 And then what I think -- then you have to 15 go on then to say, Well right, that's helpful to the 16 Court, they know it's blunt trauma. The next thing they 17 want to know is what you think might have cause that 18 blunt trauma, so you might say that, In my opinion, I 19 think there's strong evidence that this trauma was as the 20 result of a forceful blow to the head from a blunt 21 object. 22 So, that -- that's the sort of way I might 23 try and articulate it. 24 COMMISSIONER STEPHEN GOUDGE: Okay, and 25 if the evidence wasn't quite that strong, what kind of

1 language would you use to communicate a conclusion that 2 was likely but not as strong as the one (1) you just 3 articulated? 4 DR. JACK CRANE: Well you might say that 5 the injury was due to blunt trauma. You might say that 6 it could have occurred or there's the likelihood that the 7 amount of force required would indicate that a blow had 8 been struck to the head by a blunt object. 9 However, there remains the possibility 10 that this injury could have occurred as perhaps as a 11 result of a fall down a flight of stairs. So that might 12 be how you do it. 13 I think if you're -- if you're giving 14 possibilities there, I think you have to try and put some 15 weight on -- on which you think is more likely. 16 COMMISSIONER STEPHEN GOUDGE: Sort of a 17 differential analysis? 18 DR. JACK CRANE: That's right. And I 19 think then at the end of the day, it's -- it's still up 20 to the court to make their decision as to how much weight 21 they want to put on -- on your evidence. 22 COMMISSIONER STEPHEN GOUDGE: Right. Dr. 23 Butt...? 24 DR. JOHN BUTT: Well I think if you're 25 making statements like this, that as Dr. Crane has just

1 said, that -- first of all I think to explain the 2 reasonable alternatives is very important. And that -- I 3 put that in two (2) points of view. 4 One (1) is in connection with the primary 5 diagnosis. In other words, you're making a primary 6 diagnosis that includes an interpretation, but you also 7 have an obligation to make sense of the alternatives of 8 that. 9 And I think that the language is very 10 important in doing that. It's very difficult sometimes 11 to say with absolute certainty. There are alternatives 12 to the system, and as the Commissioner may know, in the 13 United States, witnesses are encouraged, at least medical 14 witnesses, are encouraged to use the phrase "the 15 likelihood" expressed as a percentage of medical 16 certainty. 17 In other words, in my opinion this is a 18 certainty within the realm of 70 percent, phrases to that 19 extent. I think, and it's been implied by Professor 20 Milroy, that those things are very difficult to 21 quantitify, and when one (1) is pressed to do those, I 22 think one (1) finds themselves in an awkward position. 23 So just to reiterate, I think it's import 24 -- important to make sure that the alternatives are 25 explained as a way of re-enforcing the primary diagnosis

1 where one (1) does express that this is most probable. 2 DR. CHRISTOPHER MILROY: Can I just add 3 one thing? I actually asked an American, well it's -- 4 it's a group on the Internet, what they understood by "to 5 a degree of reasonable medical certainty," and I got 6 different answers back from different groups. 7 Some said, well I think it's on the 8 balance of probability, and some said, well I think it 9 means beyond reasonable doubt, and some said I think it 10 means somewhere between the two (2). 11 So I don't think that they understand 12 always what their term is. I was just going to add one 13 (1) other thing, not quite the same, but use of 14 statistics, of course, has -- in terms of giving a 15 number, has been fraught with difficulty in the Sally 16 Clark Case, where Professor Suroy Meadow (phonetic) used 17 a statistic -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. CHRISTOPHER MILROY: -- that received 20 severe criticism from the Court of Appeal. And I also 21 understand that the courts have sort of rejected some 22 other statistical theories like Clay's Theorem (phonetic) 23 which I don't fully understand, but it's a method of 24 putting probabilities, and the courts in England, have 25 not liked that.

1 I think probably partly because the jury 2 wouldn't necessarily understand it. 3 MR. MARK SANDLER: Okay. 4 COMMISSIONER STEPHEN GOUDGE: Thanks. 5 Sorry, Mr. Sandler. 6 MR. MARK SANDLER: No, not at all. 7 COMMISSIONER STEPHEN GOUDGE: Helpful. 8 9 CONTINUED BY MR. MARK SANDLER? 10 MR. MARK SANDLER: Professor Crane, if 11 you would look at page 26 of the overview report, 12 paragraph 20 -- sorry, 77. And according to a memorandum 13 to the file by Dr. Cairns, it would appear that Dr. Smith 14 met with Dr. Cairns, the regional coroner, and others 15 including the police on August the 7th of 1997. 16 And according to Dr. Cairns memorandum to 17 the file, "Dr. Smith told the police that Nicholas did 18 not die of SIDS or a natural process". And I won't ask 19 you to comment upon the SIDS portion, because I -- your 20 evidence in that regard is already crystal clear. 21 "But rather died from cerebral edema 22 consistent with a blunt force injury to 23 the head. Dr. Smith further stated 24 that the mother's story that the child 25 died after hitting his head on the

1 underside of a sewing machine was not 2 consistent with the medical evidence." 3 If that accurately reflects what it was 4 that Dr. Smith told the police in August of 1997, was 5 that a reasonable opinion and why or why not? 6 DR. JACK CRANE: No, I -- I don't think 7 it was. First of all, I don't think that in this case we 8 can completely exclude natural process. And I think that 9 I indicated earlier that there were some aspects of Dr. 10 Chan's report which were inadequate and perhaps there was 11 something that he hadn't found because he didn't fully 12 investigate the case, a metabolic process, an infection, 13 so we -- we don't know about that. 14 MR. MARK SANDLER: So that arises out of 15 the failure to do all of the ancillary investigations 16 that you would expect for these kinds of cases? 17 DR. JACK CRANE: That's correct. The 18 cerebral edema, I think I've explained this many, many 19 times, and it doesn't mean anything. 20 Now I think I would accept that I don't 21 think the bump to the head on the sewing machine was 22 responsible for the death and I would accept that. But 23 of course the way that's put would suggest that what Dr. 24 Smith is implying is that this explanation is -- is 25 wrong; that what the mother is saying isn't right, which

1 tends to suggest to me, reading that, that Dr. Smith is 2 implying that this was not a non-accidental head injury. 3 That seems to be the implication of what he's saying. 4 MR. MARK SANDLER: And what about the 5 mother's story? You outlined it earlier for the 6 Commissioner in the narrative. 7 Could the pathology in this case be 8 explained by the mother's story? 9 DR. JACK CRANE: Well, I think, in my 10 view, we don't have an adequate explanation for this 11 child's death. I don't think that it's caused by trauma 12 as a result of the child hitting its head on the 13 undersurface, I just don't think we have an explanation 14 for the death. 15 MR. MARK SANDLER: All right. Was there 16 something in the history that was communicated by -- by 17 the mother that could explain this death or can you just 18 not say? 19 DR. JACK CRANE: Well, what perhaps might 20 have been significant is the fact that the child had been 21 complaining or had had dizzy spells prior to its death. 22 There might be some significance in that that might 23 require further in -- investigation, further elucidation. 24 MR. MARK SANDLER: All right. Now if I 25 can take you back to your medicolegal report at Tab 17.

1 And page 6 of that report addresses the issue of cerebral 2 edema and you've already spoken about that in some 3 detail. This is 135519 at page 6. 4 And I want to ask you is simply about one 5 (1) other feature and that is that it would appear in the 6 last full paragraph of page 6 that Dr. Smith not only has 7 placed great emphasis upon the presence of edema in the 8 brain but in one (1) of his affidavits he describes it as 9 severe. 10 So the question I have for you, first of 11 all: Was there support for the proposition that the 12 cerebral edema was severe and, if so, does its severity 13 change the expert opinion that you've formed? 14 DR. JACK CRANE: No. As I've indicated, 15 the basis for Dr. Smith's concluding that the cerebral 16 edema was severe would appear to be the fact that the 17 brain weight was increased and -- and that the sutures 18 were slightly separated. The sutural diastasis. 19 And -- and what I think is significant and 20 I -- I've commented there, was that there was some 21 evidence to suggest that the circumference of this baby's 22 head was big, that this had -- this child had a big head. 23 Now we all have slightly different heads and children 24 have slightly different heads and the information from 25 Dr. Halliday's report presumably from looking at the

1 medical records suggested that this child's head was up 2 about the 90th percentile, so it's the upper limit 3 perhaps of -- of normal. 4 If that was the case, if Nicholas had a 5 big head, then he has a big brain, and if he has a big 6 brain, he has a heavy brain. So that -- that's an 7 important factor then in -- in gauging just how 8 significant the heavy brain was in this particular case. 9 So the fact that the brain was heavy might 10 not necessarily be due, in its entirety, to swelling. It 11 might simply be due to the fact that it -- it was a big 12 brain. 13 MR. MARK SANDLER: Okay. If I can take 14 you to -- back to the overview report at 143263, Tab 19, 15 and if you'd look with me at page 36, paragraph 101. And 16 this overview report reflects that in June of 1998, Dr. 17 Cairns, the Deputy Chief Coroner, swore an affidavit on 18 behalf of the Children's Aid Society, in the Children's 19 Aid proceedings. 20 And his affidavit reflected in part that 21 he had reviewed the August 6th 1997 report of Dr. Smith, 22 its findings, and had discussed it contents with Dr. 23 Smith. He then goes on to describe the flaws in Dr. 24 Chan's autopsy. And then he says: 25 "I wholly agree with the specific and

1 crucial findings of Dr. Smith, that the 2 cerebral edema suffered by the infant 3 was severe rather than mild as 4 characterized by Dr. Chan. I agree 5 with the conclusions of Dr. Smith that 6 the infant did not die of SIDS. The 7 essential event that lead to the death 8 was severe cerebral edema. The 9 essential variables that lead to the 10 conclusion that the child was harmed by 11 an unexplained intentional use of force 12 are: 13 The findings of Dr. Smith; the 14 statements indicating the child was 15 solely in the care of the mother; the 16 child was cared for in a one (1) story 17 residence of the grandparents, save and 18 except for a walk outside with the 19 child on the sled. 20 I'm aware of the contents of Dr. 21 Smith's affidavit. I share the 22 opinions stated in the affidavit having 23 had the opportunity to review, consider 24 and discuss the opinions expressed by 25 Dr. Smith."

1 Do you have any systemic comments about 2 this affidavit, apart from the merits of Dr. Smith's 3 opinion, which you've already commented on? 4 DR. JACK CRANE: Yes. This caused me 5 some concern, Commissioner, and it seemed to me that the 6 coroner, being an independent judicial officer, really 7 shouldn't be commenting in this way. 8 I think for -- for two (2) reasons. First 9 of all, I think quite clearly, his opinions may carry 10 very significant weight. But perhaps more crucially, in 11 one (1) of the paragraphs he says: 12 "I agree" -- I wholly agree with 13 specific and crucial findings of Dr. 14 Smith. That the cerebral edema 15 suffered by the infant was severe 16 rather than mild." 17 Now that, to my mind, is a pathological 18 conclusion. Now I -- with the greatest respect to Dr. 19 Cairns, he is not a pathologist. He does not have 20 pathological expertise. 21 And in my view, it's wholly inappropriate 22 for a coroner, whether medically qualified to -- or not, 23 to comment, specifically, on a pathological finding. And 24 in fact to -- if you like, to lend support to a 25 pathological finding when he doesn't have that expertise

1 to do so. 2 MR. MARK SANDLER: Now, of course this 3 affidavit is -- is being utilized for -- for court 4 proceedings, and I take it that's the critical context in 5 which you're -- you're making your comments? 6 DR. JACK CRANE: Yes. I mean, as I say, 7 I think an affidavit from a coroner to a court will carry 8 very considerable weight indeed. 9 MR. MARK SANDLER: All right. Now if we 10 can move ahead to paragraph 157, and that's at page 56. 11 And we see from the overview report, and for those who 12 have read the report, they'll know that -- that at one 13 (1) point, a decision was made to engage Dr. Case 14 (phonetic) from St. Louis to weigh in on the pathological 15 issues that had been the subject of some disputed reports 16 from Dr. Smith and Dr. Halliday retained by the family. 17 And Dr. Case produced a report on March 18 the 6th of 1999; in it she concluded that the cause and 19 manner of Nicholas' death should have been designated as 20 undetermined. 21 There were no findings to attribute death 22 to head injury or asphyxial mechanism; she also commented 23 that neither SIDS nor choking were appropriate 24 conclusions. She said this: 25 "I would not attribute this death to a

1 head injury as there were no findings 2 on which to make such a conclusion. 3 The presence of brain swelling or 4 cerebral edema was based primarily on 5 the weight of the brain at autopsy at 6 1,220 grams and some mild splitting of 7 the sagittal and coronal sutures on 8 radiographs. I see many infants and 9 young children dying from a variety of 10 causes who have similar amounts of 11 brain swelling. Brain swelling or 12 cerebral edema should never be used as 13 an isolated finding to make a diagnosis 14 of head injury. Abusive head injuries 15 in young children and infants most 16 frequently are rotational, 17 acceleration, or deceleration injuries 18 and consist of the findings of subdural 19 and subarachnoid haemorrhages, 95 to 98 20 percent, retinal haemorrhages, 80 21 percent, and diffuse axonal injury. 22 The markers of subdural and 23 subarachnoid haemorrhage are used to 24 recognise these injuries. In this case 25 he did not demonstrate any evidence of

1 subdural and subarachnoid haemorrhage 2 grossly. Finding small patches of 3 subarachnoid haemorrhage 4 microscopically is not unusual in any 5 brain at any age due just to 6 manipulation of the brain as it is 7 being handled at autopsy. The red 8 discolouration noted in the exhumation 9 skull in the right parietal bone is not 10 indicative of any injury; many young 11 calvaria will look similarly 12 discoloured after exhumation." 13 Are there any points of departure as 14 between you and Dr. Case? 15 DR. JACK CRANE: I think I would agree 16 with her conclusions. 17 MR. MARK SANDLER: All right. There's 18 some reference there to defuse axonal injury and we're 19 going to hear a lot about that, I suspect, when Dr. 20 Whitwell is here, could you simply advise the 21 Commissioner at this point what it is that that term 22 means? 23 DR. JACK CRANE: Yes, it -- it indicates 24 that there is widespread damage to the nerve cells within 25 the brain and it's usually indicative of trauma to the

1 head and -- and it can be seen usually microscopically by 2 the use of -- of special stains in the head. 3 It -- it was, and I -- I suspect Dr. 4 Whitwell will address this further, it was, if you like, 5 one (1) of the markers of the so-called Shaken Baby 6 Syndrome, although, as you're probably aware that there's 7 a lot of controversy over that, but diffuse axonal injury 8 does indicate damage to the brain as the result of 9 trauma. 10 MR. MARK SANDLER: All right. And if you 11 go to the final document I'm going to take you to in the 12 overview report at page -- 13 COMMISSIONER STEPHEN GOUDGE: Sorry, can 14 I just pause on that answer, Dr. Crane; sorry, Mr. 15 Sandler, does indicate trauma to the brain? 16 DR. JACK CRANE: Yes, there -- there are 17 two (2) types -- 18 COMMISSIONER STEPHEN GOUDGE: It is a 19 factor that one would use to conclude trauma of the 20 brain? 21 DR. JACK CRANE: It is a marker. Now, in 22 -- in saying that, it can be -- it can be occasioned by 23 other things, but it is one (1) of the markers that we 24 use to determine that there has been trauma to a brain, 25 yes.

1 DR. CHRISTOPHER MILROY: Yeah, it should 2 be added that -- that -- I'll just say this for now, that 3 the studies on paediatric head injury have actually shown 4 it's very uncommon in the paediatric age group from the 5 work of Dr. Whitwell. 6 We'll just add that at the moment, but she 7 can expand more in due course. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: Professor Whitwell has 11 written a chapter in her book, Forensic Neuropathology, 12 that deals with this issue in part. 13 DR. CHRISTOPHER MILROY: Well, more than 14 that, she wrote the original papers with Dr. Geddes to -- 15 to analysing brains for diffused dramatic axonal injury 16 and so she's the leading expert. 17 MR. MARK SANDLER: All right, well, we 18 have to leave something to her, so I'll -- I'll move from 19 that. 20 DR. CHRISTOPHER MILROY: No, I said I 21 don't -- but I just think it's worth pointing out at this 22 point that it is actually -- it appears to be quite a 23 rare occurrence in paediatric brains. 24 MR. MARK SANDLER: Thank you. And if 25 you'd look at page 78, Professor Crane, of the overview

1 report, we know from this report that the College of 2 Physicians and Surgeons of Ontario received a complaint 3 in connection with Dr. Smith's work in three (3) cases, 4 including this one (1), and -- and three (3) assessors, 5 two (2) forensic pathologists and one (1) paediatric 6 pathologist, were retained to provide an opinion to 7 assist the college in determining its course of conduct. 8 And as reflected at paragraph 215, the 9 expert panel concluded that 10 "overall Dr. Smith met the standard 11 expected of a pathologist assisting the 12 coroner in an investigation. However, 13 the panel noted a number of 14 deficiencies and omissions in Dr. 15 Smith's approach." 16 And I simply want to go through them to 17 see whether you agree, disagree, or would qualify them: 18 A) Failing to obtain information on 19 Nicholas' head circumference in life? 20 DR. JACK CRANE: I have to say in -- in 21 fairness to Dr. Smith, it's not something that I would 22 normally obtain myself. I think, perhaps though, that 23 having concluded that the brain -- or you thought the 24 brain was swollen, I think under those circumstances, and 25 particularly, if there was some concern about whether it

1 was swollen or not, it might be good practice to go back 2 afterwards to perhaps review the medical history of the 3 child. 4 And by reviewing it, you might very well 5 find evidence of that. 6 MR. MARK SANDLER: B) Over-interpreting 7 findings to suggest a diagnosis of head trauma? 8 DR. JACK CRANE: Yes, I agree with that. 9 MR. MARK SANDLER: Over-stating the case 10 and stating that the skulls sutures were widely split? 11 DR. JACK CRANE: Yes. 12 MR. MARK SANDLER: Exaggerating the 13 wording on the x-ray reports by mis-quoting the 14 radiologic findings respecting the mandible? 15 DR. JACK CRANE: Yes. 16 MR. MARK SANDLER: Implying that 17 herniation of the brain stem was present and would be the 18 terminal event, yet such herniation was not identified in 19 the original autopsy by Dr. Chan? 20 DR. JACK CRANE: Yes. I'm not sure that 21 he did imply it was present. I think he -- he was 22 suggesting that that would be the mechanism whereby death 23 occurred. It was, perhaps, a bit unclear from his report 24 what he was implying, but certainly there was no evidence 25 that that occurred.

1 MR. MARK SANDLER: Implying that blunt 2 head trauma caused cerebral edema which was not supported 3 by the information that Nicholas received a slight bump 4 on the head? 5 DR. JACK CRANE: That's correct. 6 MR. MARK SANDLER: Over-interpreting the 7 findings of cerebral edema, including splitting of the 8 sutures as strongly suggestive for trauma? 9 DR. JACK CRANE: Yes. 10 MR. MARK SANDLER: Wrongly suggesting 11 that cerebral edema was due to blunt force trauma? 12 DR. JACK CRANE: Yes. 13 MR. MARK SANDLER: And not consulting 14 with a neuropathologist before opining on the probability 15 of head injury? 16 DR. JACK CRANE: Yes. I think that's 17 something that I would have done. The brain was 18 available, and I think I would have got an expert opinion 19 on it. 20 MR. MARK SANDLER: And then at paragraph 21 216 it says: 22 "The independent expert panel also 23 noted that Nicholas' heart was not 24 available for examination by Dr. Smith, 25 and that heart disease was a possible

1 cause of the death." 2 What do you say about that? 3 DR. JACK CRANE: Well, here we had a 4 child who was dying suddenly. It raises a number of 5 possibilities, and one (1) of those might be that there 6 might be some inherent abnormality of the heart. 7 And certainly it would be good practice to 8 conduct a detailed examination of the heart to see 9 whether there was any abnormality there that might have 10 caused it to collapse. 11 MR. MARK SANDLER: All right. Lastly, I 12 want to ask each of you a systemic question arising out 13 of what we have in the overview report. For those who 14 have read the overview report in its entirety, we see 15 that Dr. Smith has expressed his opinions on -- on the 16 case. 17 We see that Dr. Halliday has provided as 18 best I can recall, three (3) separate reports addressing 19 the issues in the case. We see that Dr. Desa expressed 20 an opinion as to the case. 21 We see that Dr. Case expressed an opinion 22 as to the case. We see that Dr. Smith filed a lengthy 23 affidavit taking issue with what Dr. Halliday had to say 24 in the various reports. 25 And there was some dialogue contained in

1 the affidavit as to whether Dr. Halliday was coming 2 closer or not to Dr. Smith's opinion as -- as the various 3 affidavits were presented. 4 I take it that each of you would recognize 5 the very difficult task left for the layperson in the 6 administration of justice, or for the judiciary should 7 this matter have proceeded to a full hearing, in trying 8 to reconcile competing expert opinions from pathologists, 9 all of whom were well recognized at the time. 10 And the question that I have for each of 11 you -- and I'll start with Professor Crane -- is, there 12 is some suggestion in the British Isles of what has been 13 characterized as a -- as a 'hot tub' approach to 14 pathologists, namely -- and -- and we're going to see 15 this tomorrow when we look at the criminal procedure 16 rules that exist in England and Wales, and when we look 17 at the -- the Kennedy report. 18 But I just want to ask you generally, do 19 you see some value in experts retained by the different 20 sides in a process getting together in advance of a court 21 proceeding to see whether to not agreement can be reached 22 as to their expert opinions or at the very least, 23 narrowing what is dispute between the parties? 24 Professor Crane, I'll ask you first. 25 DR. JACK CRANE: I think that there is a

1 lot of merit in this approach. Medical evidence and 2 pathological evidence can be very complex. And it may be 3 difficult for a lay jury to fully understand the nuances. 4 And to bombard, perhaps, a jury with four (4) or five (5) 5 different pathological opinions may -- may cause 6 confusion. 7 So I -- I think there is a lot of merit in 8 the pathologists getting together and perhaps trying to 9 agree those issues that can be agreed. And that may 10 result that perhaps there might only be a few issues 11 which perhaps there is some disagreement. 12 It may be that pathologists in the light 13 of discussion with their colleagues may concede various 14 points, so it may bring the various parties closer 15 together. It may crystalize where the areas of 16 disagreement are. And so that rather than all the -- the 17 matters sor -- if you like, being contested, it may be 18 that perhaps there are only a few matters that the jury 19 need to -- to consider. 20 MR. MARK SANDLER: And does that ever 21 happen in Northern Ireland? 22 DR. JACK CRANE: Yes, it does. Normally, 23 what will -- what will happen is that the -- either the 24 experts will get together or we will be provided with the 25 reports and asked to comment on them, and do we agree

1 with the findings, do we have any comments to make. 2 But sometimes beforehand they ask us to 3 get together to see whether we can agree evidence. And 4 often whenever that's agreed, there's often, perhaps, no 5 need for both pathologists to go to court. 6 MR. MARK SANDLER: All right. And 7 Professor Milroy, before I -- 8 COMMISSIONER STEPHEN GOUDGE: Just can I 9 -- I am going to ask each of you a couple of questions 10 about this, Dr. Crane. I take it there are similarities 11 in the process that Mr. Sandler put to you with what I 12 might call peer review prior to the pathologist report 13 being finalized, that is, discussion amongst peers in the 14 same office. 15 I take it that's the same form of 16 scientific exchange? 17 DR. JACK CRANE: Yes. I mean, peer 18 review in these cases is -- is absolutely crucial. Most 19 departments -- and -- and certainly I can speak for my 20 own -- is that before any report in a -- a homicide or 21 suspected homicide or suspicious death goes out, it's 22 reviewed by the other members of the staff. 23 We sit down, and we look at the 24 photographs and -- and discuss it. And that's good 25 practice, I think. And it doesn't matter whether you're

1 the professor or whether you're the junior person, all 2 our cases are scrutinized in -- in that way. And that is 3 very good practice and should always continue. 4 Now, despite that, it may be that there 5 are still areas of -- of disagreement between experts. 6 And if that's the case then it may be that a meeting 7 between the experts may help to resolve those issues. 8 COMMISSIONER STEPHEN GOUDGE: Okay. And 9 do you have any concern dealing with the meeting between 10 experts who would be testifying for opposite sides? That 11 sort of meeting. Do you have any concern about, let me 12 put it bluntly, personality domination by one (1) of the 13 other? 14 DR. JACK CRANE: Well, often the barrier 15 to the experts getting together, Commissioner, are the 16 lawyers. Sometimes the lawyers don't want us to get 17 together to meet. 18 COMMISSIONER STEPHEN GOUDGE: I dare say 19 we will hear from a lawyer -- 20 DR. JACK CRANE: Yes (laughter). 21 COMMISSIONER STEPHEN GOUDGE: -- this kind 22 of thing, but for me it is just dealing with it as a 23 pursuit of truth. 24 DR. JACK CRANE: Yes. I think -- and -- 25 and most of us get on well with each other and, of course

1 -- 2 MR. MARK SANDLER: You're not referring 3 to the lawyers now, you're referring to the pathologists 4 -- 5 DR. CHRISTOPHER MILROY: Some of my best 6 friends -- 7 COMMISSIONER STEPHEN GOUDGE: -- We have 8 a lot -- 9 DR. JACK CRANE: I mean, we normally 10 would share our reports and although we are being called 11 for one (1) side or another, I mean, at the end of the 12 day, the job of whoever's calling us, whether it's the 13 prosecution or defence, we're there to help the court. 14 So we shouldn't be there to score points 15 over each other, so if we can agree certain things then I 16 think that's all the better for the criminal justice 17 process. 18 MR. MARK SANDLER: Well, since we're -- 19 COMMISSIONER STEPHEN GOUDGE: So I take 20 it the professionalism of pathologists is your safeguard 21 against, if I can put it this way, browbeating by one (1) 22 of the other? 23 DR. JACK CRANE: Yes. I mean, I suppose 24 some of us have, perhaps, stronger personalities than 25 others and one has to, you know, try and guard against

1 that, but I would hope that we wouldn't get into a 2 situation where one (1) pathologist would be trying to 3 exert inappropriate or undue influence on one another. 4 Most forensic pathologists usually can -- can stand on 5 their own two (2) -- two (2) feet. 6 COMMISSIONER STEPHEN GOUDGE: Thanks. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: All right. Before I 10 ask you to comment, Professor Milroy, perhaps since we're 11 having this discussion we'll show up two (2) passages 12 that might be of assistance to your discussion. 13 I'm wondering, Mr. Registrar, if you could 14 put on the screen PFP149776? And this is the report of 15 the Baroness Helena Kennedy on Sudden Unexpected Death in 16 Infancy. And if I could take you to page 12 of the 17 report and it says under "Sudden Unexpected Death in 18 Infancy": 19 "After discussions with the Bar and the 20 Judiciary, the working group recommends 21 that the criminal court should adopt 22 the procedure similar to that in civil 23 proceedings as part of good case 24 management. 25 Before there is a criminal trial, there

1 is a preliminary hearing called the 2 "Pleas and Directions Hearing" at which 3 the judge sets out a timetable and 4 makes orders for the conduct of the 5 case. 6 It is our recommendation that in cases 7 that, essentially, turn on expert 8 testimony, the judge should order that 9 the experts meet and clarify areas of 10 conflict and report back to the court. 11 This will help to clarify the issues of 12 contest and enable the court to 13 evaluate whether the case should be 14 proceeding. Following the Court of 15 Appeal judgment in Cannings, if there 16 are two (2) views and both are equally 17 valid it would be unwise to proceed 18 with a trial against an accused as the 19 outcome may well be unjust. However, 20 in civil cases where the central issue 21 is child protection and proof is on a 22 lesser standard, the balance of 23 probabilities, a court may prefer the 24 testimony of one (1) expert and base 25 its judgment on that preference in the

1 interests of the child." 2 And under "Recommendations" it is said: 3 "Trial judges in the criminal courts, 4 in cases where expert testimony is 5 central, should order a pre-trial 6 meeting of experts to establish areas 7 of conflict and set them out in writing 8 for the court." 9 And then in the second highlighted tab: 10 "The Crown Prosecution Service should 11 exercise restraint about proceeding in 12 cases based on medical evidence where 13 valid opinions exist on both sides." 14 And the second portion that I'm going to 15 show you, and then -- because I know you're familiar with 16 both of these -- is an excerpt from the Criminal 17 Procedure Act of 2006. And I'll ask the Registrar to 18 show up PFP150739 at page 14. And you'll see here under 19 Section 33.5: 20 "This rule applies where more than one 21 (1) party wants to introduce expert 22 evidence. 23 The court may direct the experts to 24 discuss the expert issues in the 25 proceedings and prepare a statement for

1 the court of the matters on which they 2 agree and disagree giving their 3 reasons. Except for that statement, 4 the content of that discussion must not 5 be referred to without the court's 6 permission." 7 And then down to 33.6: 8 "A party may not introduce expert 9 evidence without the court's permission 10 if the expert has not complied with a 11 direction under Rule 33.5." 12 And if I could just see the next page, 13 please: 14 "Court's power to direct that evidence 15 is to be given by a single joint 16 expert. 17 Where more than one (1) defendant wants 18 to introduce expert evidence on an 19 issue at trial, the court may direct 20 that the evidence or that issue should 21 be given -- on that issue is to be 22 given by one (1) expert only. 23 Where the co-defendants cannot agree 24 who should be the expert, the court may 25 select the expert from a list prepared

1 or identified by them or direct that 2 the expert be selected in such other 3 manner as the court may direct." 4 Professor Milroy, could you comment on 5 both the Kennedy Report excerpt and on the Criminal 6 Procedure Rules: Do they make sense and what is the 7 practice in England and Wales? 8 DR. CHRISTOPHER MILROY: Yes. Before -- 9 you should be aware that the comments in Cannings have 10 been modified by a subsequent Court of Appeal judgment 11 called Whitewind, and you should -- you should read those 12 two (2) together because they said that Cannings has been 13 too narrowly interpreted. 14 MR. MARK SANDLER: So just stopping 15 there, because some of the people who are listening 16 aren't -- aren't as familiar as -- as you are with -- 17 with the jurisprudence, Cannings, as cited in -- in 18 Kennedy, appeared to stand for the proposition that where 19 there are conflicting experts, the -- the Crown should 20 not proceed, and what you're saying is that in Whitewind, 21 some cautionary limitation was placed upon the breadth of 22 that reasoning. 23 DR. CHRISTOPHER MILROY: Yes, and they 24 said, essentially, it's still for the jury to evaluate 25 the expert evidence.

1 MR. MARK SANDLER: All right, so leave 2 aside that qualifier, which I'm sure we'll discuss in the 3 course of this Inquiry, how about the -- the "hot tub" 4 approach to experts? 5 DR. CHRISTOPHER MILROY: Well, the -- I 6 can only recall one (1) case -- no, well actually, I've - 7 - I've had -- I've had one (1) or two (2) other cases, if 8 you like, of a more minor nature than -- than a murder 9 charge of -- a minor assault charge where the judge said, 10 Do you think you and the other doctor could get together 11 and give me a statement of agreed facts and we did; an 12 opinion. 13 The other case, in fact, where I think we 14 were asked by the Court to get together between the 15 experts was a case -- it was actually a case that 16 Professor Crane and I were both in and were both in the 17 meeting -- and that one (1) didn't work because, 18 arguably, the other person was holding just unreasonable 19 views and wouldn't change, and that's obviously always a 20 problem. 21 COMMISSIONER STEPHEN GOUDGE: I take it 22 you weren't the only two (2) in the meeting. 23 DR. CHRISTOPHER MILROY: There was 24 lawyers. There was -- there was the other side. It was 25 actually the case of -- it was actually the case of

1 Fraser, which the -- ultimately led to a disciplinary 2 tribunal against the person holding what we regarded as 3 unreasonable views. 4 There was a lawyer present. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: And that was -- and 8 that was Dr. Heath. 9 DR. CHRISTOPHER MILROY: Dr. Heath. 10 MR. MARK SANDLER: And you'll -- you'll 11 recall, Commissioner, that the two (2) cases which were 12 the subject of disciplinary proceedings involving Dr. 13 Heath were the Puaca decision, which we referred to 14 yesterday, and Fraser, which has just been referred to. 15 DR. CHRISTOPHER MILROY: But there is -- 16 there are -- there -- there is a growing tendency to ask 17 us to get together, indeed. In fact, my first 18 professional duty on returning to England after this -- 19 and another thing I'm doing next week, is to have a joint 20 meeting of experts; albeit this isn't a coroner's inquest 21 where -- but the pathologists and the ballistic experts 22 have been asked to get together to see if we can agree on 23 a single set of facts. 24 And I have another case involving an 25 inquest where, again, we have a -- I think it's a re --

1 restraint related death where we've been asked to get 2 together. So the -- we are -- those of us who do child 3 protection work are very familiar with this because the - 4 - this is -- this is absolutely standard procedure in 5 child protection work where each of the persons get 6 together -- are asked to get together; a series of 7 questions are often put by the side, and we are asked to 8 answer them, and then say which we agree with and which 9 we disagree with. 10 In criminal trials it really isn't very 11 common yet, but I can see it increasingly happening where 12 there is a dispute. I have to say that it's rare for 13 there to be disputes as op -- where you have really 14 diametrically opposed; it's mostly nuances on the -- on 15 the subtleties of a case. 16 Well, I think that, you know, it -- it's 17 more likely to be expert. I agree with you; I can't 18 exclude y, whereas one (1) pathologist saying, Well, I 19 think it's y, but I agree; I can't exclude x, so it's -- 20 it's sort of putting balances. 21 I think if the -- if the participants are 22 reasonable and they are focussed on the path -- 23 pathological science, then it's a good thing. One (1) of 24 the other -- 25 COMMISSIONER STEPHEN GOUDGE: Does it

1 advance the truth-seeking process? 2 DR. CHRISTOPHER MILROY: Yes, I think it 3 can. I think it can and the -- one (1) of the other 4 problems, actually frankly, is just logistical; it -- 5 it's just not -- it's just with the tight schedules and 6 busy work styles to get pathologists from around England 7 and Wales is difficult. 8 I can imagine the geographic problems with 9 -- with Canada, but -- but those are the logistical 10 problems. It doesn't still argue the -- the basic sense 11 of the -- of -- of the system. 12 As for joint single appointed experts for 13 criminal cases, I think that the defence -- or the Bar in 14 England, because the Bar both prosecutes and defend in 15 England, would be reluctant. 16 One can imagine that until he was 17 discredited, so Roy Metta (phonetic) would have been an 18 ideal single joint expert because of his standing and 19 status. So if your single joint expert's wrong, you're 20 in trouble. 21 22 CONTINUED BY MR. MARK SANDLER: 23 MR. MARK SANDLER: All right. Dr. Butt, 24 we don't have the statute provisions, or we don't have a 25 Kennedy report here in Canada, but as an experienced

1 pathologist testifying many times in -- in Canada, can 2 you describe a practice of getting together with the 3 pathologists on the other side of a case? 4 Does it -- does it happen, and do you 5 welcome it? 6 DR. JOHN BUTT: Well I do a lot of work 7 for the Defence Bar in Canada, both -- and in the United 8 States. I think pathologists in North America find the 9 system very adversarial. 10 And so I use the word "polarity," and 11 there is always that risk, and I think this is a greater 12 topic than just the resolution of disputed facts. I 13 think that the concern of pathologists being allied, for 14 example, to the Crown is a feature that has to come out 15 if -- at some point in discussions. 16 The -- the idea, it seems to me to be a 17 good idea, the sort of as you say, 'hot tub' approach. 18 My -- I see that in the context of polarity. I see it 19 also in the context of the way lawyers deal with issues 20 currently in terms of dispute mediation, and I don't know 21 a great deal about that, but it seems to me to put a 22 group of pathologists in a room -- in this particular 23 case I think you cited -- I wrote down at least five (5) 24 -- four (4) pathologists. 25 I'm not so sure that much would come of

1 that, and I would be very concerned myself that during 2 the cross-examination, that one (1) wouldn't be examined 3 on what went on in that room as much as anything else. 4 So I'm -- I think it's a good idea, but I 5 think it would have to be very carefully mediated. But I 6 don't think there's any experience with it in Canada. 7 How often do pathologists get together to discuss their 8 findings when one (1) is on one (1) side and one (1) on 9 the other? I don't think very often. 10 And I recall this from my experience in 11 Great Britain, where pathologists would be called by the 12 Defence Bar, and in that country for example, at this 13 time organs were kept in connection with homicide cases, 14 and there was a -- a very gentlemanly approach to this 15 thing in which one (1) would say, May I come over and see 16 the specimen, because I've gone over the autopsy report, 17 et cetera. 18 And I don't think that that happens here. 19 MR. MARK SANDLER: All right. 20 DR. CHRISTOPHER MILROY: Perhaps I could 21 also -- just add one (1) thing, in case it's not clear. 22 If we in the UK -- if -- if the defence wished to adduce 23 expert evidence in court, they must give full advanced 24 disclosure. So you cannot -- you cannot spring a expert 25 scientific defence onto the court which is why the

1 process can take -- of meeting can take place. 2 MR. MARK SANDLER: All right. And just 3 completing this discussion, I do note looking back at -- 4 at the criminal rules that exist in England, that 33.5(3) 5 provides that where the court does direct the experts to 6 discuss the issues and prepare a statement on that -- 7 upon which they agree and disagree, it is said that 8 except for that statement, the content of the discussion 9 must not be referred to without the court's permission. 10 And I take it, Dr. Butt, that would 11 address some of the concerns that you've expressed? 12 DR. JOHN BUTT: Yes. 13 MR. MARK SANDLER: All right. Now while 14 we're on the systemic discussion that we've had, I do 15 want to ask Professor Milroy and Professor Crane about 16 one (1) other feature of the system in British Isles, 17 that -- that is of some interest to us, and relate it to 18 what we've talked about. 19 The defence autopsy, Professor Milroy, in 20 England and Wales, what is the defence autopsy? How 21 frequently does it occur? 22 DR. CHRISTOPHER MILROY: Well, the -- on 23 the -- based on the argument of equality of arms, the 24 defence are entitled, although there is no statutory 25 regulation on this to post -- their own post-mortem

69
  1  examination.
  2                 I would suggest that in 80 or 90 percent
  3  of cases where somebody is charged, there will be a
  4  second examination of the body.  The problem with it is
  5  that it then delays the funeral procedures, sometimes for
  6  very long periods of time.  
  7                 And I think there are ways around a
  8  defence autopsy and have proposed some, including
  9  videoing, without sound, autopsies, so that you've got a
 10  -- a -- ultimately, what the defence are trying to do is
 11  to check the work of the first pathologist.  
 12                 And -- and there is a slightly strange
 13  concept in defence autopsies in that it is an implication
 14  that the first guy hasn't done the job properly.  And the
 15  public might regard it as being better to make sure that
 16  the first one was done properly rather than -- than the
 17  second, post-mortem examinations being a destructive
 18  process.  
 19                 That being said, it is almost -- as I say,
 20  it is not quite a universal process.  I'm actually saying
 21  it's funded out of public funds.  And the bar -- the bar
 22  of solicitors who instruct -- sort of separation between
 23  solicitor and bar -- solicitors who instruct us.  
 24                 They can instruct anyone, so they don't
 25  always get forensic pathologists bizarrely, but that's

1 their decision. And that's what happens in England and 2 Wales when we hold on to bodies for a long time. I 3 understand the situation is different in Northern 4 Ireland. 5 MR. MARK SANDLER: Before we turn to 6 Northern Ireland, in many of these cases, a person is not 7 charged for some period of time after the event. 8 Is that -- is that addressed in some way 9 within the context of a defence autopsy in England and 10 Wales? 11 DR. CHRISTOPHER MILROY: Yeah. I mean, 12 most people are charged very rapidly. I think I get the 13 impression they're charged more rapidly in England than 14 they are here, but the -- the -- there are clearly cases 15 where that doesn't happen. And there two (2) mechanisms 16 that -- that allow for a post-mortem examination. 17 Sometimes the coroner will order a second 18 examination and pay for it out of his funds. Or 19 occasionally, the solicitors actually can persuade the 20 legal services commission to fund an examination, saying, 21 Well, you know, it's within the interest of justice for 22 there still to be a second examination. And -- 23 MR. MARK SANDLER: This would be on 24 behalf of someone who would be an interested party or 25 potential suspect?

1 DR. CHRISTOPHER MILROY: Yeah. Yeah, who 2 may have been arrested and released without charge, but, 3 you know, would still be of interest to the police, if 4 you like. And so they -- that one -- the solicitors -- 5 so you can either get instructed by the coroner. 6 Then there are -- there are problems with 7 the coroner ordering it because sometimes the defence 8 solicitors feel that the coroner is part of the Crown and 9 it's really prosecution. So some coroners, when I've 10 done it, say, I'll instruct you, but I don't want to see 11 a report. 12 And I'll just tell the solicitors that if 13 they want the report, you can provide it for them, and 14 I'll never see it, so that it will keep it independent. 15 So there are -- there are ways around it. I mean, the 16 problem is that there is a recommendation from the Home 17 Office that are -- at the end of -- that the -- that the 18 bodies are held for twenty-eight (28) days. 19 So, I mean -- and -- and it can be lon -- 20 longer than that sometimes. So -- and it has to be said 21 that most defence examinations do not turn up anything 22 new. So that's a -- that's one (1) of the issues as to 23 whether it's a waste of time and money, and also, 24 interferes with the -- the legitimate family concerns of 25 bereavement and funeral purposes.

1 MR. MARK SANDLER: All right. In 2 Northern Ireland, what is the practice? 3 DR. JACK CRANE: Up until relatively 4 recently we didn't have that many def -- defence 5 autopsies. Now, most of our homicides or suspicious 6 deaths would have one (1). I think because in the past 7 if someone had been shot or been blown up, usually a 8 defence autopsy wasn't going to add a awful lot more to 9 the finding. 10 I think what's important to remember is 11 that if a -- a second autopsy's being done on behalf of 12 the defence, the first pathologist will have the 13 opportunity to attend, and, indeed, it's good practice 14 that they do attend; for two (2) reasons: 15 First of all, the first pathologist will 16 be able to show the second pathologist his findings. And 17 what is important, I think, is that, hopefully, the 18 findings can be agreed because one can see a situation 19 where, perhaps, the opinions of the pathologists might 20 differ, but what you don't want is a situation in court 21 where one (1) pathologist says that there was a bruise in 22 the back of the head and another pathologist says, No, 23 there wasn't a bruise in the back of the head. 24 So if the findings can be agreed by both 25 pathologists, I think that's a great advantage and great

1 help to the court. It may be then that it's only in the 2 interpretation where there may be some difference of 3 opinion. 4 MR. MARK SANDLER: All right. Now, the 5 last question I want to ask you, Professor Crane, in 6 dealing with the Nicholas case is this: That you 7 indicated that -- that you found commendable a practice 8 where -- where the autopsy that was conducted by Dr. Chan 9 was reviewed by the Paediatric Review Committee; that 10 review took place in the particular circumstances of that 11 case after Dr. Chan had already issued his autopsy 12 report. 13 What do you say about the timing of peer 14 review, whether it be done by a Paediatric Review 15 Committee or by colleagues within a department, what is 16 the appropriate timing for the peer review to take place? 17 DR. JACK CRANE: I think it's -- it's 18 best if it's done prior to the completion of the report 19 because, quite clearly, the result of the review may be 20 that further information is made available or there's an 21 opportunity to perhaps perform additional investigations 22 or to obtain more information. So I -- I think that's 23 the best time. 24 And if it doesn't occur until sometime 25 later and -- and there are new findings, of course there

1 still is the opportunity for the pathologist to write an 2 additional report, a supplementary report. But I think 3 ideally, it should be done before the report is 4 completed. 5 MR. MARK SANDLER: And I should say, 6 Commissioner, that when I asked the -- the systemic 7 questions arising out of these individual cases, as to 8 how things should be done, I -- I am not asking these 9 witnesses, for obvious reasons, whether or not the 10 practices that are identified in these individual cases 11 generally represented the practices in Ontario at the 12 time or, for that matter, what is the current practice in 13 Ontario that -- that addresses these kinds of systemic 14 concerns. We're going to be hearing evidence as to what 15 the current practises -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. MARK SANDLER: -- were in Ontario. 18 "Are" in Ontario and "were" during the relevant time. 19 DR. CHRISTOPHER MILROY: Can I just make 20 one (1) other point I think relevant to the second -- the 21 concept of second autopsies. There are, for example, 22 other jurisdictions that I'm aware of, such as in 23 Australia where second autopsies are a rare occurrence. 24 Indeed, it's only really in England and Wales that -- 25 that the practice is so common.

1 A lot of pathologists work is effectively 2 as individual practice, so they're not in groups. And 3 one (1) way of -- around having second autopsies is 4 actually if you are working in an established department 5 with colleagues, you can take a colleague down the next 6 day and say this is what I found and go over it with a 7 colleague, so that you get a peer review process straight 8 away. Going over, checking the facts, because as -- as 9 Professor Crane has said: what you're interested in the 10 autopsy is establishing the facts. Opinion doesn't come 11 -- it comes from the facts but it -- you don't form your 12 opinions stood over a body, you form it subsequently when 13 you've got all your investigations in. 14 So if you actually have people working out 15 of proper, established departments with colleagues who 16 are, you know, equally qualified and competent then you 17 can do a second look on the -- the next day, which 18 doesn't interfere with releasing of the body but allows a 19 systematic check of the findings. 20 MR. MARK SANDLER: Those are sometime -- 21 COMMISSIONER STEPHEN GOUDGE: Is there 22 any marginal preference, Dr. Milroy or Dr. Crane or Dr. 23 Butt, for a peer review to include outside reviewers; 24 reviewers from outside the institution in which the 25 pathologist who will author the report works?

1 DR. CHRISTOPHER MILROY: That's -- that 2 is proposed and occasionally happens. I look at 3 colleagues -- occasionally look at colleagues' work from 4 -- as a peer review rather not as a second autopsy or 5 defence opinion. And that is proposed. It really hasn't 6 systemically happened within the Home Office system but 7 it's there. And I think that that's a good thing that a 8 selection of cases are reviewed by another unit. 9 I could see, for example, in Ontario you 10 say, Well, some of the cases from Toronto are looked at 11 by Ottawa and some of the cases from Ottawa could be 12 looked at by Hamilton and so on, so that you get a 13 system, hopefully, where you all have the same high 14 standard by checking up what everyone else is doing. 15 COMMISSIONER STEPHEN GOUDGE: Is that 16 better than having them all reviewed within the same 17 institution, peer reviewed in the same institution? 18 DR. CHRISTOPHER MILROY: In my view -- 19 COMMISSIONER STEPHEN GOUDGE: And 20 obviously I am implicitly raising concerns like 21 institutional hierarchy and reviewing of seniors by 22 juniors -- 23 DR. CHRISTOPHER MILROY: Well -- 24 COMMISSIONER STEPHEN GOUDGE: -- common 25 patterns of thinking within an institution --

1 DR. CHRISTOPHER MILROY: Yeah. 2 COMMISSIONER STEPHEN GOUDGE: -- et 3 cetera. 4 DR. CHRISTOPHER MILROY: Well, one (1) of 5 the problems I could see, for example, if you established 6 just one (1) paediatric -- one (1) -- one (1) unit in 7 Ontario to do paediatric cases, that is where you would 8 have that problem because you would then have no other 9 expertise within the province that we'll be able to 10 review, because they would say well, they don't do this 11 work so how -- 12 COMMISSIONER STEPHEN GOUDGE: That 13 assumes there is a problem with intra-institution peer 14 review. I'm asking the question -- 15 DR. CHRISTOPHER MILROY: Well, I think -- 16 COMMISSIONER STEPHEN GOUDGE: -- is that 17 a problem? 18 DR. CHRISTOPHER MILROY: -- I think it 19 can become a problem. Because if you have one (1) set 20 views, that is not necessarily the only view out there, 21 then obviously that is the only one that is going to be 22 promulgated. 23 COMMISSIONER STEPHEN GOUDGE: All right. 24 Dr. Crane, Dr. Butt, do you have a view on this? 25 DR. JACK CRANE: Well I think my view is

1 that internal peer review is -- is essential in any -- 2 any department. I think it's good for everyone. I think 3 everyone learns from it. 4 But equally important, and I think both 5 systems, there has to be some external audit. There has 6 to be some external quality assurance scheme. I'm -- 7 just for an example, the Home Office organized one (1), 8 and what happened was that all Home Office pathologists 9 had to submit a number of their cases. 10 They might be head injury cases. They 11 might be baby cases. And they all had to do this; submit 12 a number of cases. And they -- those cases were then 13 scrutinized by the Scientific Standards Committee. 14 And, as a result of that, we were able to 15 highlight deficiencies, suggest improvements. And it's 16 as a result of that sort of feedback that, I think, 17 pathologists then help to improve their practice. 18 And it also helped to feed into the code 19 of practice that we produced for pathologists producing 20 their reports. 21 COMMISSIONER STEPHEN GOUDGE: External 22 review, you're talking about there is a quality assurance 23 process -- 24 DR. JACK CRANE: Correct. 25 COMMISSIONER STEPHEN GOUDGE: -- and not

1 a process that would vet a report prior to it being 2 finalized? 3 DR. JACK CRANE: No, it -- it wouldn't do 4 that. 5 COMMISSIONER STEPHEN GOUDGE: Dr. Butt, 6 do you have any comments on the external versus internal 7 dimension of peer review? 8 DR. JOHN BUTT: Well, I think what 9 Professor Crane has described, and I think to a degree, 10 Professor Milroy, the issue of in-house conferences 11 following an important autopsy, is -- is a good idea. 12 And I'm sure it's commonly done. I don't 13 think it's the same thing as -- as you have pointed out, 14 as an independent review. And I think that an 15 independent review is an important thing. 16 I mean, one sees this all the time in 17 connection with a variety of investigations. For 18 example, investigations into police issues, and also 19 concerns about hospitals and how they review cases. 20 In-house reviews are sort of not thought 21 of being, particularly, independent. And so, I think it 22 is important to take the review outside the institution 23 and to have it done by people who are vetting, for 24 example, cases across the province. And that's all I can 25 add.

1 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Just two (2) questions 5 arising out of -- out of this. The first, Professor 6 Crane, is this: That apart from external of in -- 7 individual autopsies that have been performed, you've 8 encouraged within your department, external audits to 9 come in and look at the kind of work that's been done at 10 the State Pathologist Office in Northern Ireland, have 11 you not? 12 DR. JACK CRANE: Yes. I'm always 13 concerned that if you're working within a unit, you think 14 that that's the best unit, and that all your systems are 15 -- are good and right and proper. 16 MR. MARK SANDLER: We think that at our 17 law firm. 18 DR. JACK CRANE: And what I've done since 19 taking over my post -- and have done it on several 20 occasions -- is I've got other people in to come and look 21 at it; a fresh pair of eyes. 22 Sometimes the -- the results of that 23 external audit might not make good reading, but at least 24 it's someone looking at it from outside and giving an 25 independent impartial view.

1 The purpose of which is to try and improve 2 the standard of work you're doing. To try and improve 3 how you can produce better work, work quicker, better 4 reports. So -- so I think that is -- that's good 5 practice. 6 MR. MARK SANDLER: And the second 7 question that I have of both for Professor Milroy and for 8 Professor Crane, is this: Each of you respectively are 9 the Chief Pathologists for your department. Who reviews 10 you, and do you see any concerns in that regard? 11 DR. JACK CRANE: Well as -- as far as I'm 12 concerned, my cases are reviewed by my colleagues in 13 exactly the same way. And the fact that I'm the head of 14 the department doesn't make any difference. If my 15 colleagues criticize my reports, then I have to accept 16 that criticism. 17 If it's justified, then I have to modify 18 what I've done. I think, just another point is, that I 19 don't think any of us, whether we're the chair or the 20 junior, none of us should feel that we know everything. 21 There are many cases that we all find 22 difficult. And if we find a difficulty, or if we're 23 unsure, then the right course of action is to go and -- 24 and ask a colleague, you know, Would you come down to the 25 autopsy room and look at this? Can you give me an

1 opinion? I mean I -- I think we all must bear in mind 2 that, you know, none of us our infallible. We can make 3 mistakes and -- and therefore, if we're not sure, I think 4 having humility to -- to get another opinion is -- is 5 very important. 6 MR. MARK SANDLER: Professor Milroy, do - 7 - do you think that the pathologist under your charge 8 might have some reticence criticizing the quality of a 9 report that you've prepared? 10 DR. CHRISTOPHER MILROY: No, he has no 11 reticence, and he's been told not to have. And what 12 happens is, that every case we send out there -- there 13 are -- there are -- there's -- there's another, actually, 14 quite senior pathologist who works with me who's also 15 held a chair, so -- but my -- I have a young, relatively 16 newly appointed colleague and he has to -- he goes over 17 my reports with a fine-tooth comb. 18 He's -- he loves pointing out all my 19 grammatical errors and -- and then will sometimes, you 20 know, more -- more relevantly, challenge some of my, you 21 know, Are you sure about that opinion or haven't you 22 thought about x, you know, and I'll -- we will then 23 discuss it together, but often this process has happened 24 before. 25 If you like the coffee room talk, it's

1 happened before we actually come to the formal peer 2 review process, and when we do the peer review process in 3 my department we have a record of it, so we fill out a 4 sheet. He -- he makes comments, you know, Have we 5 included everything? Is the neuropathology in there, if 6 it's been done? Have you included the toxicology? Are 7 the -- and then the final question we ask in each of our 8 reports, are the conclusions reasonable based on the 9 evidence? Are the conclusions reviewable? And then we 10 sign off the report, and then it goes out. 11 And occasionally, I send my reports out to 12 colleagues on the Home Office list and they do external - 13 - they do reviews for me, as well, so they're sometimes 14 done -- I do occasionally get them done outside the 15 department, as well, although that -- okay. 16 COMMISSIONER STEPHEN GOUDGE: How many 17 would peer review one (1) of your reports? 18 DR. CHRISTOPHER MILROY: Just one (1) 19 other pathologist. 20 COMMISSIONER STEPHEN GOUDGE: Is this a 21 form that you generated in your department or is this -- 22 DR. CHRISTOPHER MILROY: Yes. 23 COMMISSIONER STEPHEN GOUDGE: -- a 24 generally shared one? 25 DR. CHRISTOPHER MILROY: Well, there is

1 one (1) that the Home Office recommended, which in fact 2 sort of came out of something I had suggested to them 3 many years ago. My colleagues then modified it. I 4 believe that mine is of a -- of a more thorough nature 5 than -- that what -- than that which we are required to 6 do. 7 Now, the Forensic Science Service, in 8 general, has an absolute principle that no report goes 9 out from the Forensic Science Service without it having 10 been reviewed by a second forensic scientist or forensic 11 pathologist, and there is always a peer review process on 12 that. It has to be certain. 13 Until about seven (7) years ago, there was 14 no peer review process and reports just went out. I 15 suppose one (1) other thing I would add is if you really 16 do have a difficult case, I sometimes might say, This is 17 my opinion, but this is a difficult case. You ought to 18 go and seek the opinion of a pathologist outside our 19 unit, as well. 20 And I've recommended Professor Crane -- 21 I've recommended other colleagues to give -- to give 22 reports. If we're going into a complex case where 23 there's going to be a trial, you know, I said, You -- you 24 may need more that one (1) pathologist to give the 25 evidence here.

1 Numbers shouldn't alter the -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. CHRISTOPHER MILROY: Numbers, 4 ultimately, shouldn't alter the opinion, but -- and -- 5 but the cynics might say, Well, jurors can count and they 6 can work out -- they may not understand the science, but 7 they count. But realistically, if it is a complex issue, 8 then it is good to have someone else saying, No, this 9 isn't just a flight of fancy by Milroy; it is a -- it is 10 a reasonable proposition, and I agree with him. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: All right, I've put on 14 the screen, Professor Milroy, PFP150629, and can you 15 explain to the Commissioner what that document is? 16 DR. CHRISTOPHER MILROY: Yes, this is the 17 Home Office's critical conclusions check and it outlines 18 what you are -- you need to do. We go beyond this in the 19 Forensic Science Service and we -- we have not only to -- 20 this critical conclusions check, but this is an element 21 of peer review in it, so I think ours is a bit more 22 thorough, but that -- but those are the minimum that we 23 have to comply with on the Home Office. 24 COMMISSIONER STEPHEN GOUDGE: And that's 25 what you referred to a minute ago --

1 DR. CHRISTOPHER MILROY: Yes. 2 COMMISSIONER STEPHEN GOUDGE: -- as the 3 Home Office form for peer review? 4 DR. CHRISTOPHER MILROY: That's -- this 5 is the Home Office guidance, yes. I actually have a form 6 that I have created. I think I actually supplied a copy, 7 to you some time ago, that we produced. I have to say 8 it's my understanding in Ontario in the -- in the Office 9 of the Chief Coroner Forensic Pathology Unit that they 10 have a similar process in place now. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: All right, thank you. 14 We'll return to some of these issues tomorrow, but if I 15 can now turn to the next case that we're going to look 16 at, and that's Dr. Butt's case. 17 So Commissioner, I'll ask you to go to Dr. 18 Butt's volume, and Dr. Butt, if I could take you to Tab 19 12 of your materials PFP142836. 20 And we're now going to examine the case of 21 Baby M, and as one can see at Page 3 of the Overview 22 Report, Baby M was born and died in Pickering, Ontario on 23 November the 8th of 1992. 24 Criminal proceedings were initiated 25 against his mother. The criminal proceedings concluded

1 on September 30, 1994, when the mother pleaded guilty to 2 manslaughter. She received a suspended sentence and 3 probation. 4 The terms "baby" and "birth" are used in 5 the Overview Report as reflected in Footnote 1, because 6 they appear throughout the documents. But I wanted to 7 note, as does the Overview Report, that in this context 8 their use is not intended to predetermine whether or not 9 Baby M was born alive or achieved a separate existence 10 from Baby M's mother. 11 As I understand it Dr. Butt, you were 12 assigned to be the primary reviewer on this case? 13 DR. JOHN BUTT: That's correct. 14 MR. MARK SANDLER: And as I understand 15 it, this case and the next case that we'll be examining, 16 that of Baby F, raised some similar issues most 17 particularly, the task of the pathologist in determining 18 whether the birth was a still birth or a live birth. 19 Am I right? 20 DR. JOHN BUTT: That's correct. 21 MR. MARK SANDLER: Now if I can take you 22 to your medical-legal report that was prepared at the 23 request of the Commission, it's at Tab 10 of your 24 materials, and it is PFP135499. And at Page 2 of your 25 medical-legal report, you briefly describe the background

1 of this case, and could you outline that for the 2 Commissioner, please? 3 DR. JOHN BUTT: Yes. This infant was 4 discovered in the early morning of November the 8th of 5 1992 in a toilet bowl, the resident -- at the residence 6 of the mother and her parents, after the mother had 7 indicated to her sister that she had cramps and was 8 beginning her menstrual period. 9 There was a case history that was provided 10 to Dr. Smith in this matter by the Coroner, and that 11 brought up the question, did a baby live postpartum, 12 which, of course, as you had indicated, Mr. Sandler, was 13 part of the problem in the beginning, before the issue of 14 a pathological diagnosis concerning the death of the 15 child. 16 The question is whether the child was ever 17 alive in the first place. 18 MR. MARK SANDLER: Now, if one looks at 19 Page 3 of your medical-legal report, you've provided the 20 reader with some insight on what the issue is from a 21 pathological perspective. 22 And could you take us through that 23 component of the pathology. Simply with a view to 24 describing what it is that the pathologist has to 25 consider and decide in these kinds of cases.

1 DR. JOHN BUTT: Well, the bottom line is 2 for the pathologist to determine, if possible, that the 3 child was alive outside the birth canal. Only at that 4 point, could it be considered to have been a live birth. 5 There are several possibilities for the 6 interruption of the child's life, including in utero, 7 including in the birth canal itself, and it is sometimes 8 difficult to do this. 9 So I've outlined this. In fact, probably 10 the best thing is to just read directly from it, although 11 I wouldn't want the Commission to think that the issue is 12 one of a crime of infanticide, but it's reasonable to put 13 that word in perspective, because it's used in -- in the 14 course of this case, and in the outcome of this case. 15 The child must have been fully expelled 16 from the birth canal, fully born. It must have had an 17 independent existence after expulsion from the birth 18 canal, and if there is death by infanticide then there 19 has to be a cause by a demonstrable intentional injury or 20 willful neglect of the child. 21 And I'm not referring here particularly to 22 Canadian statute. This is a textbook definition that's 23 given in a reasonably contemporaneous text, at the time, 24 by a well-known American author. 25 MR. MARK SANDLER: So just stopping there

1 for a -- for a moment. 2 DR. JOHN BUTT: Mm-hm. 3 MR. MARK SANDLER: That when considering 4 these issues, it is a pathological issue as to whether 5 the child was fully expelled from the birth canal, and it 6 is a pathological issue as to whether it achieved an 7 independent existence after expulsion from its mother, am 8 I right? 9 DR. JOHN BUTT: That's correct. 10 MR. MARK SANDLER: As for whether its 11 death was caused by intentional injury or willful neglect 12 that has to do with the state of the mind of -- state of 13 mind of the mother, in your view, is -- is that an issue 14 that the forensic pathologist opines on? 15 DR. JOHN BUTT: In terms of the -- of the 16 state of the mind of a mother, it has nothing to do with 17 the pathologist, but the only reference is the -- the 18 issue of demonstrating some medical cause of death that 19 would have occurred after -- after the -- the birth. 20 So that in itself becomes a pathological 21 issue. So there are really three (3) -- three (3) 22 things. The -- the two (2) that you had indicated, and 23 then the matter of demonstrating a medical cause of death 24 that would, for example, indicate trauma to the child, 25 such as a blunt injury.

1 MR. MARK SANDLER: All right. Now, at 2 page 4, you continue your discussion about -- about this 3 issue. Can you provide the Commissioner with -- with 4 some brief insight as to how the pathologist goes about 5 the task of determining, if he or she can, whether there 6 was a live birth of not? 7 DR. JOHN BUTT: Well, for a pathologist 8 who's left in isolation, that is without the benefit of 9 somebody saying, well, the chi -- the child was separated 10 and was crying, this can often be a trying task. And one 11 (1) of the commonest things to do is to examine the lungs 12 very carefully, and to be sure that air has entered into 13 all of the lobes of the lungs. 14 There is a sort of coarse test that 15 antidates any microscopic examination of the lungs, to 16 which is given the -- the name of a floatation test, in 17 which the lungs are dissected on a block and are just 18 simply placed in a vessel with water. 19 And whether they float or not is the 20 issue. I think under those circumstances, such a coarse 21 test may not be entirely revealing of whether there, in 22 fact, has been a -- a separate existence because, for 23 example, there can be a number of features that the 24 pathologist may not know about. 25 And one (1) of them may include the fact

1 that the child has been resuscitated without anybody -- 2 or an attempt made to resuscitate the child without 3 anybody knowing about it, in which case, there would be 4 air in the lungs. So this could give you a false value. 5 So there isn't a great deal to go on and 6 one (1) of the things, for example, and it doesn't apply 7 in this case, is that you may find food in the intestinal 8 tract of the child. That would be a -- pretty strong 9 evidence that the child had had a separate existence 10 because that's going not to occur anytime before the 11 child was fully expelled. 12 So it's not all together an easy matter to 13 -- to prove a separ -- to -- to prove a separate 14 existence. 15 MR. MARK SANDLER: And you made reference 16 to the fact that -- that the pathologist looks to see 17 whether or not there was air in all of the lobes of the 18 lungs. 19 Why all of the lobes of the lungs as 20 opposed to some? 21 DR. JOHN BUTT: Well, I think the -- the 22 theory essentially is that if the -- if the child is 23 breathing then its lungs are going to expand. And that 24 means with the first or second breath the child is going 25 to take air into all the lobes of the lungs, whereas if

1 it doesn't then there remains some suspicion that the 2 child was -- was breathing. 3 And that's about all I can say about it. 4 MR. MARK SANDLER: Okay. 5 DR. JOHN BUTT: I don't think there's 6 much more to -- to the subject. It's a very -- I think, 7 a very coarse science, and I think that it's a very 8 difficult area for pathologists. It begins a case rather 9 awkwardly. 10 MR. MARK SANDLER: All right. Now, you 11 had occasion to examine the way in which Dr. Smith 12 performed the autopsy in this case and the report that 13 followed, did you not? 14 DR. JOHN BUTT: Yes. 15 MR. MARK SANDLER: And were there any 16 concerns or issues as to the way in which the autopsy was 17 conducted? 18 DR. JOHN BUTT: In terms of the way the 19 autopsy was conducted, I don't think that there were 20 significant con -- concerns about it. The way the 21 information was developed was of concern. 22 MR. MARK SANDLER: All right. And, 23 Commissioner, I'm about to turn to that issue now. This 24 would be a convenient time to take our morning break. 25 COMMISSIONER STEPHEN GOUDGE: Thank you.

1 We'll be back then shortly after 11:30. 2 3 --- Upon recessing at 11:17 a.m. 4 --- Upon resuming at 11:35 a.m. 5 6 THE REGISTRAR: All rise. Please be 7 seated. 8 COMMISSIONER STEPHEN GOUDGE: Mr. 9 Sandler...? 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Thank you, 13 Commissioner. Dr. Butt, you had occasion to examine as 14 part of your review of this file, the report of post- 15 mortem examination of Dr. Smith, am I right? 16 DR. JOHN BUTT: Yes. 17 MR. MARK SANDLER: And I'm going to take 18 you back to it in a -- in a few moments, but before I do, 19 you make reference in your medical-legal report to the 20 absence of a history in that report. 21 And we've already addressed that issue 22 through Professor Milray -- Milroy, Professor Crane, and 23 -- and yourself, so I don't intend to -- to raise that 24 issue with you again. 25 But I do want to turn with you to another

1 document that Dr. Smith prepared on this and other files, 2 and that's found at PFP001704. And, Commissioner, this 3 is at Tab 13 of the Dr. Butt materials, and it is a 4 document on The Hospital for Sick Children letterhead and 5 called "Final Autopsy Report". 6 And I'll ask you, Dr. Butt, this was a 7 form that was seen in a number of the files that were 8 reviewed by all five (5) of the forensic pathologists, am 9 I right? 10 DR. JOHN BUTT: I -- I believe that they 11 have, in their own reviews, had a form similar to this in 12 their file. 13 MR. MARK SANDLER: Professor Crane, you - 14 - you saw a similar form to this in -- in some or all of 15 the files that you were dealing with? 16 DR. JACK CRANE: Yes, I did. 17 MR. MARK SANDLER: And Professor 18 Milroy...? 19 DR. CHRISTOPHER MILROY: That's correct. 20 MR. MARK SANDLER: And -- and I expect 21 that we may hear some evidence that this was a form that 22 was utilized for internal purposes within the hospital 23 prepared by Dr. Smith and -- and where a history is 24 provided, unlike the report of post-mortem examination. 25 I want to ask you about it because, Dr.

1 Butt, you've raised some systemic concern about a 2 document such as this. Could you comment on those 3 concerns to the Commissioner, please? 4 DR. JOHN BUTT: Well, I think that -- 5 that it begins with the autopsy being done under the 6 authority of the Coroners Act. And the Coroner's Office 7 is, of course, an independent organization and ought not 8 to be seen to have an association with hospitals, 9 although under certain circumstances that does happen, 10 particularly in the performance of post-mortem 11 examinations. For example, outside of Metropolitan 12 Toronto in particular where the coroner has to use the 13 facilities of hospitals for the sake of the economy. 14 Otherwise, of course, the coroner may 15 become involved in the affairs of a case in a hospital in 16 which his neutrality and the -- the perception of his 17 neutrality is an important issue. And it's difficult for 18 me, as I put in the report here, I just said the purpose 19 of the report is unknown, but it seems to me that the 20 pathologist who's commissioned by the coroner has no 21 interest in putting a report in the hospital files 22 whatsoever. 23 Well, one (1) may take exception to that 24 and say, Well, what about if the death occurs in the 25 hospital? And the answer to that, again, is that the

1 autopsy is performed under the -- under the Coroners Act. 2 And I assume that under the Coroners Act there is a 3 regulation which relates to the distribution of autopsy 4 reports and the fact that they might be given out 5 "automatically" by the pathologist would seem to me to be 6 improper and that's basically my concern. 7 So to recap it -- it speaks -- the -- the 8 issue of the independence of the Coroner's Office, call 9 it "neutrality", is important. 10 And filing documents directly with the 11 hospital, if that was the outcome of this, and I have no 12 reason to believe that it was or that it was not, but 13 it's an important principle in my opinion. 14 MR. MARK SANDLER: Would there be some 15 value to the hospital in learning about the results of an 16 autopsy that was performed within its physical 17 environment and how, if at all, should that be addressed? 18 DR. JOHN BUTT: Well, there are two (2) - 19 - there are two (2) issues that come to my mind there. 20 The first one (1) is whether the -- whether the subject 21 was a patient in the hospital. 22 And under those circumstances, of course, 23 one (1) might be concerned that the report going directly 24 into the hospital files and being used by hospital audit 25 committees directly without some intermediary such as the

1 Coroner's law may very well require, is not the sort of 2 thing that one wants to see in terms of dealing with the 3 public's perception of what went on in that particular 4 case. So that's an important issue. 5 And that again goes back to the issue of 6 neutrality. And those are cases in which the person was 7 in the hospital. 8 If the person was not in the hospital then 9 -- to be blunt about it, then it's none of the hospital's 10 business. It doesn't have anything to do with the 11 hospital. 12 Now if the hospital, for example, said, 13 Well this person was a patient here before, and we needed 14 to close our files, then there is a way of the hospital 15 getting the report. 16 But as a matter of it becoming a -- a 17 direct channel between the pathologist and the hospital, 18 in my opinion, it's wrong. 19 MR. MARK SANDLER: Okay. Now if I can 20 take you back to your medical-legal report at Tab 10, and 21 we're at 135499 again, and specifically at page 5 of that 22 report. You've reflected that the autopsy identified 23 certain pathological features as noteworthy. 24 Could you describe for the Commissioner 25 what the noteworthy features were as identified by Dr.

1 Smith, and your comments as to their significance or lack 2 thereof? 3 DR. JOHN BUTT: The first finding was 4 that a tiny foci of soft tissue haemorrhage in the neck. 5 There was also a focus of haemorrhage of -- in the left 6 lobe of the thyroid gland, which is located in the neck. 7 There were petechial haemorrhages on the 8 thoracic organs, notably the thymus, the heart on the 9 epicardial, or the outer surface of the heart within the 10 heart sac, and scattered haemorrhages well over the -- 11 the covering of the lungs. 12 There was air in the stomach and in the 13 lungs, and there was quote, unquote, "minimal cerebral 14 edema or swelling. 15 Pardon me, I -- I don't know that it's 16 necessary to go into this in great detail, because Dr. 17 Crane yesterday dealt with the issue of intra thoracic 18 petechial haemorrhages. I know it's a matter of record, 19 and it was carefully explained. 20 If you wish me to go over that again, I 21 could do it? 22 MR. MARK SANDLER: No, that's fine. 23 DR. JOHN BUTT: I believe that the issue 24 of small haemorrhages has also been dealt with. Isolated 25 findings such as this, particularly in the field of

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1 dissection, are probably -- they run the risk of being 2 spurious, and as a result of the dissection procedure 3 itself, and therefore are potentially artifactual 4 haemorrhages. 5 And so really we're left with not a great 6 deal, except that there is one (1) important finding here 7 that may relate to the determination of a separate 8 existence, which is air in the stomach and in the lungs. 9 Now those findings may be spurious in 10 terms of what was done or was attempted in terms of 11 resuscitation, for example. The finding of air in the 12 stomachs and the lungs can be spurious under other 13 circumstances such as decomposition, which does not apply 14 in this particular case. 15 So those are the basic issues. There was 16 also said to be some bruising on the left buttock, and 17 there were pictures taken of -- of some of these things. 18 And one (1) of the things I commented upon, in terms of 19 the pictures, what was said to be a portion of a burned 20 cigarette. 21 There was -- in the picture that I 22 examined, there was no way that that could be determined 23 as more, in my opinion, then a piece of paper, a small 24 piece of paper. 25 MR. MARK SANDLER: If I can turn to page

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1 7 of your report. You -- you've reflected near the 2 bottom of the page, your commentary on the case. Most 3 particularly as it relates to the opinion expressed by 4 Dr. Smith. 5 What did he record as the cause of death 6 in this case? 7 DR. JOHN BUTT: The definitive cause of 8 death was -- was given as asphyxia, and in parenthesis 9 next to that was the word infanticide. 10 MR. MARK SANDLER: Could you provide your 11 expert opinion to the Commissioner as to the 12 reasonableness of that cause of death as recorded by Dr. 13 Smith? 14 DR. JOHN BUTT: In summary, it's my 15 opinion that it -- that is not a reasonable cause of 16 death, and that it cannot be substantiated on the basis 17 of the findings. To reiterate, and much of this was 18 covered, again, by Professor Crane. 19 That these petechial haemorrhages are of 20 no material value whatsoever. The two (2) isolated 21 findings in the neck that might tend to focus on some 22 mechanism of asphyxia are really immaterial to a 23 conclusion such as this. They do very little to 24 elaborate anything and, in fact, the findings are 25 basically useless in terms of substantiating a conclusion

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1 of infanticide, which has to do with an issue of 2 violence, and there is just nothing in this case that 3 speaks to violence at all. 4 And I think that that covers it. One (1), 5 I suppose, can accept the issue of a separate existence 6 in this matter. It remains a -- a problem, it remains 7 problematic, but to be fair, it does, in many cases of 8 this sort, as we will see from another case of the same 9 type. 10 So, I've outlined my concerns at the end 11 of the document, including the fact that it remains a 12 problem about conclusive evidence in current -- 13 concerning separate existence. 14 To reiterate the interpretation of 15 petechial haemorrhages, the interpretation of isolated 16 haemorrhages, I had a problem with interpreting the 17 microscopic findings in the lungs insofar as there were, 18 I believe, small haemorrhages defined there, intra- 19 alveolar haemorrhages, I couldn't really say that they 20 added materially to the conclusions. 21 There was air in the lungs, of course, as 22 I mentioned. And my other concern was that the statement 23 of death included the manner of death, which it was an 24 infanticide, and in my opinion, that's beyond not only 25 proof of patho -- in terms of pathology, but also it's

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1 beyond the mandate of the pathologist. 2 MR. MARK SANDLER: So, let me unpack a 3 few of the things that you've said here. The -- the 4 first thing that you've said is that, is it in your view 5 it was unreasonable to opine that the cause of death was 6 asphyxia, and you've articulated the -- the reasons for 7 that. 8 Asphyxia coupled with the term 9 "infanticide," in your view, was problematic, not only 10 for that reason, but because infanticide, in your view, 11 is beyond the scope of appropriate expertise of the 12 pathologist. Do I have that right? 13 DR. JOHN BUTT: That's correct. 14 MR. MARK SANDLER: We heard from Dr. 15 Pollanen last week that historically in Ontario 16 pathologists are discouraged from opining as to manner of 17 death. It may be implicit in the cause of death, as 18 found by the pathologist, but it is not overtly listed as 19 such and it should not be opined on by the pathologist if 20 the manner of death requires a determination beyond the 21 scope of the expertise of the pathologist. 22 So just so that we're clear, infanticide, 23 in your view, falls -- falls where in the spectrum of the 24 pathologist's ability to opine? 25 DR. JOHN BUTT: Well, the term

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1 "infanticide" implies a -- a willful act in general. I 2 mean I'm not going to get into the issues of the criminal 3 code in Canada because it's not my area, but it -- it 4 implies a willful act and it's inappropriate under the 5 circumstances. 6 In terms of making a description, as the 7 Commissioner has already asked us, about the issues of 8 explaining probability, et cetera, if the consideration 9 was there, for example, let's use the word "homicide", 10 then how one is going to justify this may be a matter of 11 the body of the report, particularly in the summary 12 section of the report, in explaining the alternatives and 13 explaining the sense of whether it is more or less 14 probable, we've discussed those issues, but in terms of 15 making a conclusion that the case is distinctly a 16 homicide, there are two issues that are important here. 17 One (1) of them is the issue of blame, 18 which has nothing to do with a pathologist, and the other 19 one (1) is that it immediately requires one (1) to 20 substantiate what they've said, at least -- at the very 21 least. 22 And in this particular case, 23 substantiating the conclusion of homicide is just not -- 24 is just not possible, so apart from the -- the comment 25 being misplaced, there is no -- there is no evidence for

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1 this. 2 MR. MARK SANDLER: So -- so your critique 3 is two-fold; one (1) that there's no evidence that 4 supports it and -- and b), that in any event, if there 5 were, you'd expect it to be explained. 6 DR. JOHN BUTT: I would indeed. I mean 7 there's no mechanism whatsoever, that explains this 8 death, in terms of the report that was given. There 9 isn't a mechanism to explain it. 10 I mean, the word asphyxia, may be regarded 11 as quote unquote, "a mechanism of death" but as alr -- as 12 all -- has already been said, it is so broadly based. We 13 went over this yesterday. It is so broadly based, as to 14 be valueless as a descriptive term. 15 MR. MARK SANDLER: All right. And to -- 16 and you've heard in testimony of your colleagues here, 17 that -- that sometimes asphyxia might be used in a more 18 innocuous sense, rather than to imply a criminal act, or 19 a mechanical asphyxia that would result in culpability. 20 But their concern was that -- that the 21 term is misunderstood. "Asphyxia" coupled with the term 22 "infanticide," I take it, heightens the danger of its 23 use. 24 DR. JOHN BUTT: Well, I -- I -- I hope 25 that that's what I've got across.

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1 MR. MARK SANDLER: Now, if I can take you 2 to a transcript of a preliminary inquiry on a matter that 3 you did not look at but, indeed, we're going to hear from 4 Dr. Milroy on, and that's the Tiffani case, and that's 5 PFP005543. And it's at Page 17 of a transcript that was 6 given in that case. 7 And this is Dr. Smith testifying, and one 8 of the things that he is commenting upon is the use of 9 parentheses in his reports. And you'll recall, I know, 10 that the term "infanticide" was reproduced in parentheses 11 in the report in the case that we're now considering. 12 Is that right? 13 DR. JOHN BUTT: Yes. 14 MR. MARK SANDLER: And, Dr. Smith said 15 this at line 9. 16 "Now one of the standards in pathology 17 when listing anatomical diagnoses is to 18 put in parentheses any diagnosis which 19 a pathologist cannot substantiate, but 20 which may be an important part of 21 information. And I've done it here. 22 You'll notice that the word 23 (malnutrition) is in parentheses." 24 Is that a convention or a standard in 25 pathology with which you are familiar, Dr. Butt?

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1 DR. JOHN BUTT: It is not, no. 2 MR. MARK SANDLER: Professor Milroy, will 3 be dealing with the Tiffani case, so I pose the same 4 question to you. Is that a standard of pathology with 5 which you're familiar? 6 DR. CHRISTOPHER MILROY: No, I'm not. 7 MR. MARK SANDLER: And Professor Crane, 8 did parentheses appear in some of the causes of death 9 that you examined? 10 DR. JACK CRANE: Yes. 11 MR. MARK SANDLER: And were you aware 12 when examining the reports of post-mortem examination 13 that some or all of the items placed in parentheses may 14 reflect information that the pathologist could not 15 substantiate, but was -- but regarded as important? 16 DR. JACK CRANE: No. 17 MR. MARK SANDLER: Do any of you, and 18 I'll start with Professor Milroy and work across. Do any 19 of you see any dangers with the use of parentheses in 20 that way? Professor Milroy...? 21 DR. CHRISTOPHER MILROY: Well, yes, 22 simply. It -- to say that you -- you have something that 23 you can't substantiate raises a suspicion without any 24 objective evidence and the duty of the pathologist is to 25 put down objective evidence, and it's just pure

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1 speculation. 2 MR. MARK SANDLER: All right. Profess -- 3 DR. CHRISTOPHER MILROY: To put things 4 down in that man -- or it appears to be pure speculation. 5 MR. MARK SANDLER: All right. Professor 6 Crane...? 7 DR. JACK CRANE: It -- in my view it's 8 inappropriate to put information in that you can't 9 substantiate. 10 MR. MARK SANDLER: Dr. Butt...? 11 DR. JOHN BUTT: Well, I find the whole 12 matter very confusing, quite frankly. I mean, it just 13 doesn't make any sense to me. If it's meant to be a 14 historical reference, in terms of the document that we're 15 looking at here, which the pathologist can't -- can't 16 prove what he's saying. 17 So one assumes that the issue of 18 malnutrition, for example, is a historical reference. So 19 I'd have certainly a concern about that and, that is, I 20 think as Professor Milroy said, Well of what importance 21 is it, if you can't demonstrate it at the autopsy? 22 But in the context in which it's given in 23 the death of Baby M, then I find it very difficult to see 24 how it's a historical reference. So I don't understand - 25 - I don't understand it.

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1 And if it has to do with the fact that it 2 means, well, I -- I can't substantiate this at the -- at 3 the autopsy then I find it equally con -- confusing. I 4 just don't understand what it means. 5 MR. MARK SANDLER: All right. 6 DR. JOHN BUTT: In terms of the way it's 7 explained here, I don't understand how it's used. 8 MR. MARK SANDLER: And would you have any 9 concern about its use in the hands of a reader uninformed 10 that that is a purported standard of pathology? 11 DR. JOHN BUTT: Well, I think that I 12 would have great concern, and the expressions that one 13 has heard here are rel -- relevant to that. I mean, the 14 issue is one of confusion. And it opens up issues that 15 are obviously ill-defined, not only with reference to the 16 findings themselves of the autopsy, and in terms of 17 substantiate -- substantiating that, but it also brings 18 up the issue of why is it even there. 19 MR. MARK SANDLER: Okay. 20 COMMISSIONER STEPHEN GOUDGE: Can I just 21 ask a question, and not that I have any experience on it, 22 perhaps, but Dr. Smith seems to be saying in that passage 23 in the transcript, these are observations I make about 24 something that I can't substantiate on the basis of 25 pathology alone.

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1 Now, I take it, it is acceptable forensic 2 pathology to use some things from the history, for 3 example, to provide support for autopsy results and yield 4 a forensic pathology conclusion. That is, you can go 5 outside of the autopsy? 6 DR. CHRISTOPHER MILROY: You can have a 7 hypothetical put to you, and you can say based on the -- 8 that hypothetical this could happen. And certainly we -- 9 we are asked to look at witness descriptions or interview 10 transcripts and say, does that then -- how does that -- 11 the pathology fit in to that, so that's -- that is 12 perfectly reasonable. 13 I've just -- I'm -- go back to the 14 parenthesis. Until it was act -- until I discovered that 15 -- 16 COMMISSIONER STEPHEN GOUDGE: How he was 17 using it. 18 DR. CHRISTOPHER MILROY: -- how he was 19 using it, I just assumed that that was part of the 20 conclusions. So -- so I was con -- I was genuinely 21 confused, and I -- and I ca -- I can't imagine a 22 layperson understanding the context in which it was given 23 because I certainly thought that when I saw malnutrition 24 written down, till I read the transcripts, that it meant 25 there's malnutrition present.

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1 COMMISSIONER STEPHEN GOUDGE: Would 2 infanticide ever be a conclusion that a forensic 3 pathologist could draw? 4 DR. CHRISTOPHER MILROY: No, it's a -- 5 well, infanticide in English law is a very specific -- 6 has a very specific meaning. And, I mean, to say, 7 infanticide it would -- cause it's the mother, and can 8 only -- only the mother, in the English law, can be 9 charged with infanticide. 10 To put infanticide down would say that the 11 mother has unlawfully killed the baby, and that it would 12 be murder -- murder other than falling into the specific 13 parts of the Infanticide Act. 14 COMMISSIONER STEPHEN GOUDGE: So it is 15 simply not a pathological conclusion? 16 DR. CHRISTOPHER MILROY: It's not a 17 pathological conclusion. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: All right. Dr. Butt, 21 I think we're going to leave the Baby M case and turn to 22 the Baby F case, at this point, if we may. And I'm going 23 to direct you to Tab 18 of your binder. That is the 24 overview report at PFP-142804 -- 142804. 25 And page 3 of the document, please, Mr.

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1 Registrar. Thank you. We see from the overview report 2 that Baby F was born and died in a city in Ontario on 3 November the 28th of 1996. Criminal proceedings were 4 initiated against Baby F's mother. 5 Those criminal proceedings concluded in 6 June of 1998 when its mother pleaded guilty to 7 infanticide. And in 2006, she was granted a pardon. As 8 in the prior case, the terms "baby" and "birth" are used 9 throughout this overview report because they appear 10 through the documents and, again, their use is not 11 intended to predetermine whether Baby F was born alive or 12 achieved a separate existence from the mother. 13 Dr. Butt, you were assigned, as part of 14 the chief coroner's review, to be the primary reviewer 15 for this case, is that right? 16 DR. JOHN BUTT: Yes, it is. 17 MR. MARK SANDLER: And what I'm going to 18 do, if I may, is take you directly to Dr. Smith's 19 findings, which are to be found in the overview report at 20 paragraph -- excuse me for a moment. I'll go first to 21 page 9, paragraph 23, if I may. 22 Let's provide a little bit more historical 23 context. On December the 1st of 1996, Dr. Walsh 24 conducted an autopsy on Baby F at a hospital in Ontario. 25 And if we move ahead to page 12 of the same document,

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1 you'll see at paragraph 33, that Dr. Walsh requested a 2 second opinion on the case from Dr. Smith. Dr. Smith 3 reviewed Dr. Walsh's report of post-mortem examination; 4 presumably a draft since Dr. Walsh did not sign the 5 report until sometime thereafter. 6 He also reviewed glass microscope slides 7 and the post-mortem radiographs and radiology report, and 8 Dr. Smith provided a consultation report on January 20th 9 of 1997. 10 And if we -- and you've reviewed all of 11 those documents in the course of your review, I take it? 12 DR. JOHN BUTT: I have, yes. 13 MR. MARK SANDLER: And his findings are 14 found at paragraph 36, at page 13 of the overview report. 15 And, perhaps, utilizing paragraphs 36 and 16 following, you could simply explain for the Commissioner 17 what it was that Dr. Smith found. 18 DR. JOHN BUTT: Well, the original 19 autopsy that was performed by Dr. Walsh was, essentially, 20 ratified by Dr. Smith. The important findings in that, I 21 think, are the ones that one ought to outline. I don't 22 know where they are in this reference but I have them in 23 the -- my own report. 24 MR. MARK SANDLER: So why don't you refer 25 then to -- to your own report --

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1 DR. JOHN BUTT: Yes. 2 MR. MARK SANDLER: -- to respond to my 3 question. It is found at 135489 at Tab 16. 4 Which page would you like to take us to? 5 DR. JOHN BUTT: Under the Background 6 Information, the local pathologist's report. 7 MR. MARK SANDLER: All right. So at page 8 2 of your report; why don't you give us the relevant 9 background and findings? 10 DR. JOHN BUTT: This was a three point 11 zero (3.0) kilogram infant that would be regarded as a 12 normal birth weight of a mature infant. There was no 13 evidence of maceration, which means that the skin had not 14 begin -- begun to deteriorate, nor was there evidence of 15 meconium, which is a substance that's in the bowel of the 16 newborn when it's delivered. And sometimes it is 17 expressed into the amniotic fluid and stains the surface 18 of the child as a feature of distress of the infant 19 intra-partum or ante-partum in utero. There was no blood 20 on the skin. These are all Dr. Walsh's findings. 21 The nail beds were blue. The cord was 22 torn off and attenuated near the placental end. 23 There was a marginal clot on what was- 24 otherwise- a normal placenta. That clot was located on 25 the maternal surface of the placenta- and my recollection

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1 is that it occupied an area of about five (5) centimetre 2 diameter. 3 The right lung was aerated. On 4 microscopic examination, there were a few collapsed 5 alveoli. Those are like the cells of a spongy network. 6 If you regard the lung as a sponge, these would be not 7 the structural cells but the cells in which air enters -- 8 chambers; might be small chambers. 9 The lungs were congested with a few intra- 10 alveolar hemorrhages and there was no meconium. This 11 meant that there was no staining with this material that 12 I talked about earlier. 13 The stomach was empty. Presumably, that 14 means of air. There was a caput which is a congestion at 15 the top of the scalp in a vertex or head presentation 16 which occurs during the passage through the birth canal. 17 The brain was normal and there was a microscopic 18 examination of Dr. Walsh's demonstrating in the thymus, 19 which is a gland that is located in the thoracic or chest 20 cavity; a few small petechia. 21 So there's a -- there are a number of 22 issues here that are very similar to the Baby M that we 23 just reviewed. So this was the report that was reviewed 24 by Dr. Smith in January, and I -- 25 MR. MARK SANDLER: Let me just stop you

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1 there for a moment. 2 DR. JOHN BUTT: Yes, yes. 3 MR. MARK SANDLER: Dr. Walsh in his 4 report concluded that the cause of death was anoxia in 5 normal live born female. And we'll come back to that -- 6 DR. JOHN BUTT: Yes. 7 MR. MARK SANDLER: -- term after we 8 analyze what Dr. Smith had to say. So if you'd look at 9 page 5 of your report, you comment on the adequacy of the 10 material. And perhaps you could simply indicate to the 11 Commissioner what your findings were in that regard. 12 DR. JOHN BUTT: The -- I think there 13 were two (2) concerns that I had. One (1) was the issue 14 of the -- of the clot which was demonstrated in one (1) 15 of the photographs, and I don't know that Dr. Smith took 16 or had the opportunity to review these photographs. 17 I would presume that he had the oppor -- 18 presume he had the opportunity to review them. And the 19 other concern that I had was that in one (1) of the 20 photographs, the position of the umbilical cord in 21 circling the neck was apparent. 22 And I'm not so sure that that actually 23 wasn't mentioned by the first pathologist but in any 24 event, it was apparent in the photographs. So those are 25 two things that really add to the conundrum of this case.

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1 And they certainly bring a focus to the 2 issue of live birth as -- as being a problem, and that is 3 in determination as we -- as one discussed in the very 4 beginning about that being an issue in terms of newborn 5 children, and whether or not the child was born alive. 6 So there -- 7 MR. MARK SANDLER: Now, just -- I'm 8 sorry. 9 DR. JOHN BUTT: No, go ahead. 10 MR. MARK SANDLER: Just stopping there 11 for -- for a moment. You've identified two (2) features 12 of the pathology that we're going to come back to in 13 terms of their significance. But so that I understand 14 it, the -- one (1) of the features was a clot, which 15 you've described as: 16 "A clot of significant size, together 17 with the placenta that was described by 18 Dr. Walsh." 19 And did Dr. Smith acknowledge in -- in his 20 review the existence of that pathology? 21 DR. JOHN BUTT: No. 22 MR. MARK SANDLER: And the second item 23 was the umbilical cord partially encircling the infant's 24 neck which you noted in the photographs. 25 And was that identified by Dr. Walsh or

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1 Dr. Smith? 2 DR. JOHN BUTT: No, it was not. But I 3 believe it was by -- it was acknowledged, I think by Dr. 4 Walsh. 5 MR. MARK SANDLER: By Dr. Walsh? 6 DR. JOHN BUTT: Yes, but I don't think by 7 Dr. Smith, no. 8 MR. MARK SANDLER: All right. And if 9 you'd go to page 7 of the medicolegal report that you 10 prepared, what did Dr. Smith opine as the cause of death 11 in this case? 12 DR. JOHN BUTT: Well, Dr. Smith gave the 13 -- gave the medical cause of death in this case as -- the 14 statement reads: 15 "Death is attributed to asphyxia." 16 This is on the following page: 17 "Presuming that no alternative 18 explanation, eg., from toxological 19 analysis is forthcoming." 20 It follows: 21 "The exact means by which the asphyxia 22 was induced could not be determined on 23 review of these materials." Unquote. 24 MR. MARK SANDLER: All right. 25 DR. JOHN BUTT: There was, however, a

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1 following comment, as a conclusion, which is at the end 2 of his report; that the death was asphyxia and the word 3 infanticide appears in brackets. 4 MR. MARK SANDLER: All right. Now going 5 back to page 7, you've articulated, commencing at item 6, 6 your opinion on the case. 7 Could you take us through your opinion 8 with a view to advising the Commissioner what your expert 9 opinion is as to the cause of death, and its 10 reasonableness as expressed by Dr. Smith? 11 DR. JOHN BUTT: Well, we're looking at a 12 number of features here that have been discussed before; 13 not only in the death of Baby M, but also in Professor 14 Crane's evidence yesterday. 15 And these are the -- the non-specific 16 nature of such things as petechial hemorrhages and the 17 thoracic viscera; the word "congestion" of the lungs, and 18 also such things as "cyanotic: which means blueness to 19 the nailbeds. I might say that congestion of the lungs 20 and cyanosis of the nailbed in corpses is almost so 21 universal that it is absolutely worthless as -- as a 22 specific or any other form of indication of a definitive 23 cause of death. 24 And it's much on the same basis as a 25 swelling of the brain. The issue in this case also

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1 brings up the potential for petechial hemorrhages to have 2 occurred in the thoracic viscera during parturition, 3 which is a fact. And -- 4 MR. MARK SANDLER: Just stop for a -- 5 just stop for a moment. What is parturition? 6 DR. JOHN BUTT: During birthing. 7 MR. MARK SANDLER: All right. 8 DR. JOHN BUTT: And -- and that -- that 9 is a fact. And it simply outlines the lack of 10 specificity of petechial hemorrhages in the thoracic 11 organs. The other issue that I haven't explained here is 12 the issue of the condition of the placenta; and the 13 condition of the mother which we haven't discussed. 14 But the mother in this case was in bad 15 shape. And she was taken to hospital, I beli -- I would 16 feature, as a matter of emergency. And she was detained 17 in the hospital with a serious anemia which was due to 18 blood loss. 19 And I don't know of her records in the 20 hospital, so I can't say whether she was transfused or 21 not, but her hemoglobin level, which is basically 22 reflection of her red cell mass, was something about 40 23 percent of normal. And this was due to a vaginal 24 hemorrhage, one presumes. 25 And that vaginal hemorrhage may very well

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1 have been related to a condition called abruptio -- A-B- 2 R-U-P-T-I-O -- or you could add an N to it; abruption of 3 the placenta or abruptio placenta. Certainly, the clot 4 which was located in the margin of the -- of the placenta 5 spoke to this as a distinct pathological issue, and all 6 one can say about it, following that, is that it brings 7 into question the issue of whether this child ever had a 8 separate existence. 9 The same applies to the cord being around 10 the neck. 11 COMMISSIONER STEPHEN GOUDGE: Before you 12 go to the cord. Explain a little more to be about the 13 abruption. 14 DR. JOHN BUTT: Well, of course, the 15 placenta is attached to the wall of the uterus. 16 COMMISSIONER STEPHEN GOUDGE: Yes. 17 DR. JOHN BUTT: It is the lifeblood 18 through the placental cord -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. JOHN BUTT: -- to nourish the child. 21 The early detachment of the placenta from the wall of the 22 uterus in the absence of parturition or birthing provides 23 a space in the -- in the existence of the child where it 24 may be receiving no nourishment including oxygen, and, 25 therefore, it is a perilous situation for the child, and

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1 can lead to intra-partum death of the infant. 2 COMMISSIONER STEPHEN GOUDGE: That is 3 death during the birthing process before -- 4 DR. JOHN BUTT: Even before -- even 5 before that. So while the court may provide more concern 6 over, for example, issues that might occur during the 7 delivery through the birth canal, the issue of the 8 abruption of the placenta, which is not a given fact as a 9 complete entity of this case, in terms of looking at the 10 size of the clot, for example. 11 But, obviously, there was a precipitous 12 event in this case of flooding of blood which is what I 13 understand from the notes about the mother. And -- so it 14 adds another dimension to the concern that this child may 15 not have been born alive. Furthermore, -- 16 COMMISSIONER STEPHEN GOUDGE: Would the 17 blood loss and the clot be enough to allow you to 18 conclude that there had been abruption? 19 DR. JOHN BUTT: It is -- it isn't a 20 complete abruption of the placenta or I think the clot 21 would have been larger. 22 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 23 DR. JOHN BUTT: But I don't think it's 24 possible to say that it didn't threaten the life of the 25 child.

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1 COMMISSIONER STEPHEN GOUDGE: Can you 2 have a partial abruption? 3 DR. JOHN BUTT: Yes, absolutely. 4 COMMISSIONER STEPHEN GOUDGE: And would a 5 smaller clot be consistent with, to use that terrible 6 phrase, -- 7 DR. JOHN BUTT: Yes. Yes, it would. And 8 furthermore, there was a microscopic finding here which 9 had to do with the deposition of -- of blood product; a 10 particular element in blood called fibrin that suggested 11 that there may have been problems with this -- you -- 12 this placental connection before this time. 13 And that area under the microscope would 14 be regarded as what is called a part of an infarction of 15 the placenta, but what the extent of it was, I really 16 don't know because we didn't have the placenta to 17 examine, but that may have been a sort of heralding 18 feature to suggest that there was going to be difficulty. 19 That's about all I can say about it. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: So, just stopping 23 there. 24 COMMISSIONER STEPHEN GOUDGE: Sorry, the 25 -- just because I thought the medicine is interesting to

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1 me, Dr. Butt, how much can you conclude from the air in 2 the lungs about whether there was a live birth or not? 3 That is -- is that on its own a 4 significant independent marker? 5 DR. JOHN BUTT: I think it is, depending 6 on the extent of the air in the lungs, but it carries the 7 qualification that I made during the issue of Baby M in 8 terms if you don't know what the antecedent features are, 9 so if there is resuscitation, an attempt, rather, at 10 resuscitation, the result may be entirely misinterpreted. 11 So it's a -- 12 COMMISSIONER STEPHEN GOUDGE: Is there 13 enough in this case for you to conclude from the air in 14 the lungs alone that there was a live birth? 15 DR. JOHN BUTT: I would -- I -- I would 16 feel that that's probably -- it's a very equivocal issue 17 in this case. I know I'm waffling about it, but I think 18 that it's a difficult call for anybody -- for anyone. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Was there any 22 suggestion -- just to be clear -- was there any 23 suggestion of resuscitation in this case? 24 DR. JOHN BUTT: Not that I know of. 25 MR. MARK SANDLER: All right, so --

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1 DR. JOHN BUTT: No. No. 2 MR. MARK SANDLER: And so does that 3 affect the -- the answers that you gave to -- to the 4 Commissioner? 5 DR. JOHN BUTT: Well, the -- I think the 6 -- my concern here is that there was only partial 7 aeration of the lungs, and I don't think that there was a 8 flotation check done by Dr. Walsh in this matter. 9 So there was only partial aeration of the 10 lungs and I think the way I expressed it at the end of 11 this is -- is of concern in terms of, one is not certain 12 in this case that there was a separate existence. 13 MR. MARK SANDLER: All right, so just 14 stopping there for a moment. We've dealt with one (1) of 15 the features of this case that differentiates it to some 16 degree from the -- from the Baby M, namely that, as I 17 understand it, the -- the partial aeration of the lungs, 18 together with the features that you've just described, 19 raise the possibility that abruptio placenta explains the 20 death of this child before born; am I right so far? 21 DR. JOHN BUTT: It is a possibility. 22 MR. MARK SANDLER: All right. 23 DR. JOHN BUTT: Yes, it's a 24 consideration. 25 MR. MARK SANDLER: And you raised a

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1 second issue that's thrown up by the pathology as you 2 examined it, and that is having to do with the umbilical 3 cord, so could you explain that to the Commissioner now, 4 please? 5 DR. JOHN BUTT: Well, the potential for 6 the umbilical cord to strangle the child is -- is there 7 throughout the birthing process and so when a child was - 8 - for example, is born with a cord around its neck, 9 there's an immediate attempt to release the cord from 10 around the neck as soon as the child has been delivered 11 because it's such a threatening issue. 12 The possibility that the cord has actually 13 interfered with the circulation of the child in utero 14 also remains because if the cord was tight enough to 15 preclude the circulation of blood to the child's head, 16 for example, it would cause serious damage in utero, so 17 there is al -- there are two (2) possibilities that the 18 child can actually strangle in utero. 19 MR. MARK SANDLER: And would you expect - 20 - just transplanting what little I know about 21 strangulation in adult cases, would -- would you expect 22 some pathology in the neck area of the unborn child if 23 this child possibly died as a result of strangulation by 24 the umbilical cord? 25 DR. JOHN BUTT: A demonstration of the

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1 tightness of the cord would be -- what would be 2 indicated, so that would be visible at the time of the -- 3 of the presentation of the infant if the information was 4 recorded properly. Of course, under certain 5 circumstances that isn't recorded. 6 MR. MARK SANDLER: All right. So, the 7 pathology as presented to you raises the issue of whether 8 or not abruptio placenta explains the death here; it 9 raises the issue of whether the -- the umbilical cord 10 being wrapped around the neck of the child explains the 11 death here. 12 And -- and leave aside those possibilities 13 that arise on the pathology, as I understand your 14 evidence, what about the cause of death identified by Dr. 15 Smith as asphyxia (infantacide)? 16 DR. JOHN BUTT: I think that what I've -- 17 have said before and what Professor Crane yesterday, 18 covers pretty well all the bases in this matter in terms 19 of the interpretation of the findings of, particularly, 20 intra-thoracic petechial haemorrhages. 21 I'll just have a quick look at my report 22 here to see whether there's other information that ought 23 to be explained. But the issue of Dr. Walsh's conclusion 24 that there is anoxia is -- is the way it's expressed. 25 And that was expressed in Dr. Walsh's report on the 23rd

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1 of June, which was given three (3) days after Dr. Smith 2 gave his report. 3 And for one (1) reason or another, Dr. 4 Walsh did not change his report from the more general 5 observation that this was an anoxic death to one (1) that 6 appeared to be more distinctive, in terms of that it was 7 an asphyxial death, which one could argue is the same as 8 anoxia. That's -- that's a reasonable argument. 9 But Dr. Walsh did not say anything 10 following that about infanticide, which is the conclusion 11 that I believe Dr. Smith intended. 12 MR. MARK SANDLER: Now just going back 13 for a moment. Is there a distinction between anoxia and 14 asphyxia, whether -- whether in how that term is used by 15 pathologists or whether in the way in which that term 16 would be understood when communicated? 17 DR. JOHN BUTT: Well, anoxia is probably 18 a more scientific term than asphyxia. As Professor Crane 19 expressed yesterday, in the parlance of forensic 20 pathologists much of the word "asphyxia" is -- is 21 understanding the natures of mechanical obstruction to 22 breathing. Such things as a refrigerator falling on your 23 chest or a gag being stuffed in the back of your throat. 24 The -- the word "anoxia" encompasses a 25 very substantial amount in terms of what is in the

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1 textbooks, as does asphyxia. So the narrowness of the 2 term "asphyxia" to more of a -- of a culpable act, for 3 example, is basically a forensic pathological issue. 4 The issue of anoxia includes a huge, huge 5 number of things. For example, anoxia due -- of the 6 brain may be described by a number of things such as 7 gases that -- that prevent oxygen reach -- reaching the 8 brain; lack of blood reaching the ba -- brain for one (1) 9 or another reason, including during cardiac catastrophes. 10 So the word "anoxic" is a very general term and it 11 probably doesn't carry anything like the context of -- or 12 rather of the issue of mechanism that the word "asphyxia" 13 in the forensic realm is -- has implied. 14 But as Professor Milroy indicated 15 yesterday, the word is becoming old hat. 16 MR. MARK SANDLER: All right. Now the 17 last question that I want to ask you in connection with 18 this particular case is this. 19 Let's assume that you were the pathologist 20 consulted in connection with this case, whether 21 performing the initial post-mortem or in consultation as 22 occurred here with Dr. Smith. And the police or -- or 23 the -- or Crown counsel ask to meet with you and they put 24 it in -- in lay terms and say this: 25 Dr. Butt, we're considering whether or

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1 not an infanticide or other charge 2 should be laid against the mother in 3 this case. We understand that's not 4 your decision, it's ours, but what does 5 the pathology tell us about whether 6 this dial -- child died pre-birth, 7 during birth, or after birth? And does 8 the pathology support the fact that 9 this child died at the hands of the 10 mother?" 11 What would you say to them? 12 DR. JOHN BUTT: In one sentence, I would 13 say not enough to make a conclusion about whether the 14 child was either born alive or if it was, what the 15 mechanism of death was. 16 And in terms of the issue of the child 17 being born alive, if one was to make a presumption that 18 the child was born alive, the latter part of the remark 19 still pertains. 20 MR. MARK SANDLER: All right. Thank you 21 very much. Dr. Butt, those are all of the questions that 22 I have on that case. 23 I'm going to turn, Commissioner, if I may, 24 back to Dr. Milroy. And we'll be dealing with the 25 Tiffani case. And we'll be looking at Dr. Milroy's

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1 volume. And this will be Volume 2, of Dr. Milroy's 2 materials, and if I can take you, Dr. Milroy, to Tab 45, 3 which is PFP143440. 4 And if you'd look at Page 4 of the 5 Overview Report with me, Professor Milroy. We see from 6 the Overview Report that Tiffani was born in Kingston, 7 Ontario in March of 1993. Her parents are identified in 8 the Overview Report as Mary and William. Tiffani died on 9 July the 4th of 1993 in Glen Miller, Ontario. She was 10 three and a half (3 1/2) months old at the time of her 11 death. 12 Criminal proceedings were initiated 13 against the parents. On May the 12th of 1995, Mary and 14 William pleaded guilty to the offense of failing to 15 provide the necessities, or the necessaries of life to 16 their child. 17 Mary received a suspended sentence and 18 probation. William received a sentence involving 19 incarceration. 20 As we'll see from the Overview Report, 21 they were originally charged with two offences, and later 22 with an additional offence, which we'll talk about in the 23 course of your evidence. 24 As I recall, as part of the Chief 25 Coroner's review, you were assigned to be the primary

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1 reviewer for this case. 2 DR. CHRISTOPHER MILROY: That's correct. 3 MR. MARK SANDLER: And your medical-legal 4 report is contained at PFP135481, and that's at Tab 43, 5 Commissioner, of your materials. And if you'd look with 6 me, Professor Milroy, at Page 4 of your report. 7 Could you provide the Commissioner with 8 the background history and circumstances, as you 9 understand them, in connection with this case? 10 DR. CHRISTOPHER MILROY: Yes. I was -- I 11 ascertained that Tiffani was born on the 24th of March, 12 1993, at thirty-six (36) weeks gestation. Forty (40) 13 weeks is full-term. 14 She was found dead on the 4th of July, 15 1993 that should be not '94. Then there was a Coroner's 16 warrant issued on the 4th of July that stated that this 17 was a three (3) month old SID, meaning Sudden Infant 18 Death. 19 An autopsy was performed by Dr. Cassidy at 20 Belleville Ho -- General Hospital. Following the initial 21 autopsy, a review of the x-rays revealed fractures of the 22 ribs. 23 Second Coroner's warrant on the 13th of 24 July, 1993 stated that Tiffani was born premature at 25 thirty-six (36) weeks. She was kept in hospital for two

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1 (2) weeks, because of some trouble feeding. Weight gain 2 was marginal. 3 When seen by family doctor in mid May, she 4 had a lesion that was suggestive of a burn. X-ray at the 5 time of the first autopsy revealed three fractures of 6 ribs not seen on the post-mortem examination. 7 The body was exhumed and examined by Dr. 8 Smith and then the parents of Tiffani were subsequently 9 charged with a series of offences. 10 MR. MARK SANDLER: Now, I just want to 11 ask you a systemic question that arises, squarely, as a 12 result of the background history and circumstances and, 13 that is: Should x-ray results be available before a body 14 is released for burial; and if so, what is the practice 15 in England and Wales in that regard? 16 DR. CHRISTOPHER MILROY: Well, first 17 thing is obviously x-raying a child of this age is 18 standard procedure, and clearly should be performed, and 19 was. It is preferable but not always possible that the 20 x-ray has been looked at by a pediatric radiologist 21 before the commencement of the post-mortem examination. 22 That is the optimal thing because that 23 report directs the pathologist to boney injury. And 24 we've already heard about mataficial fractures. These 25 fractures -- bucket handle fractures -- at the ends of

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1 the long bones. 2 They cannot really be picked up with the 3 naked eye, and you must be directed. So if you see them, 4 that will -- you will retain those areas. You'd dissect 5 them out and retain them for microscopic examination. 6 Rib fractures can be missed. It happens, 7 and that's why again, you do the x-rays to direct you 8 towards where the rib fractures are. So the ideal 9 situation is that the x-rays have been reported by a 10 pediatric radiologist before you start the examination. 11 That is not always possible. It may be 12 that the x-rays, you know, you're doing this case over a 13 weekend where people have been arrested, and the police 14 want to know what's going on, and that you're not going 15 to get them reported till after the weekend. 16 It clearly, again, is good practice not to 17 release the body until the report has been formally 18 produced. That if that shows up -- abnormalities that 19 you haven't suspected -- you go back to the body. 20 And that's what we do now in the -- in 21 England and Wales as normal practice. 22 MR. MARK SANDLER: Now just while we're 23 on the topic of x-rays, the Commissioner and parties -- 24 counsel for parties with standing, had an opportunity to 25 attend the Hospital for Sick Children, and view the

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1 available facilities at the Ontario Pediatric Forensic 2 Pathology Unit here in Toronto. 3 And one (1) of the observations made was 4 that CT scans are now figuring prominently in the 5 investigative work that's done and associated with 6 pediatric cases. 7 Are CT scans being routinely used in 8 England and Wales, and whether or not that's the case, is 9 it a sound practice? 10 DR. CHRISTOPHER MILROY: Well, certainly 11 it's very advantageous to have CT scans, and also for 12 that matter, MRI scans. They actually look at different 13 things, CT and MRI. 14 CT is better for bone. MRI is better for 15 soft tissue. They make an ideal pair. You can't just do 16 MRI because you need to know whether there are any 17 metallic objects, for example, because of the nature of 18 MRI being magnets, so -- magnetic, so you need to do CT 19 before you do MRI. 20 They make an ideal combination. They're a 21 patently resource issues with that deg -- comprehensive 22 degree. There are forensic institutes around the world - 23 - I think the Danes have MRI and CT available to them. 24 And I have to take a step back and say 25 it's not routine in England to do CT scans. There are

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1 some places that do it. It is increasing. It would be 2 preferable to do it -- although it has to be said that a 3 good quality skeletal survey will pick up the boney 4 abnormalities that you are looking for. 5 So I think that what is -- the practice 6 that is going on in Toronto is good, and I would 7 certainly commend it. 8 MR. MARK SANDLER: All right. 9 COMMISSIONER STEPHEN GOUDGE: You said 10 that for pediatric cases the x-ray would be standard? 11 DR. CHRISTOPHER MILROY: The x-ray is 12 absolutely standard. You would not conduct a post-mortem 13 examination in the United Kingdom, and I wouldn't expect 14 that anywhere else in the Western World, before you have 15 conducted radiological skeletal survey, which by -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 DR. CHRISTOPHER MILROY: But when I'm 18 talking about routine x-rays, sometimes called rout grums 19 (phonetic) I think is the -- 20 COMMISSIONER STEPHEN GOUDGE: What I was 21 getting at was that you seem to make a point 22 inferentially of saying for infants of this age, it was 23 standard. 24 DR. CHRISTOPHER MILROY: Yes. Because -- 25 COMMISSIONER STEPHEN GOUDGE: Why?

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1 DR. CHRISTOPHER MILROY: Why? Because -- 2 because the -- I think it was many, many years ago, a 3 British forensic pathologist said that the skin and bones 4 tell the story. 5 COMMISSIONER STEPHEN GOUDGE: But why for 6 infants if not for everybody? 7 DR. CHRISTOPHER MILROY: I think it's 8 partly one (1) of practicality. It's also the subtle 9 nature of the injuries that you can see in infants. I 10 mean there is an argument, there are institutions now, 11 Melbourne has a -- the Victoria Institute of Forensic 12 Medicine has a CT scan in the Institute and they CT scan 13 everyone; great if you can get the resources. 14 COMMISSIONER STEPHEN GOUDGE: But it has 15 to do with the subtlety of what you may -- might be 16 looking for with infants -- 17 DR. CHRISTOPHER MILROY: In pediatric -- 18 COMMISSIONER STEPHEN GOUDGE: -- is that 19 it? 20 DR. CHRISTOPHER MILROY: Yes. In 21 pediatric groups, it's really the subtlety. There are 22 other -- there are other occasions in forensic medicine 23 where it would be routine to x-ray a body. For example, 24 if -- if it's -- if it's a shooting case then you're 25 looking for retained bullets and --

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1 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. CHRISTOPHER MILROY: -- other 3 material. But it's not routine to x-ray every single 4 body; there are obviously resource implications. 5 And the -- the value of x-raying someone 6 who's been stabbed over what you will gain from it are 7 very limited. You may do it if you think that the tip of 8 a knife has broken off in somebody, for example. 9 But for most autopsies, it doesn't 10 actually add very much, if anything at all. Although as 11 we come to do CT scans -- I mean, there is a separate 12 argument -- perhaps, I should say about CT scans -- which 13 doesn't directly concern us, but there are -- there are - 14 - especially, amongst certain religious groups who have 15 an objection to autopsy -- they are looking to see 16 whether CT and MRI might replace the need for an invasive 17 autopsy and that's being looked at. That's -- that's a 18 sort of slightly separate argument but some of the use of 19 CT and MRI is developing in that way. 20 COMMISSIONER STEPHEN GOUDGE: Let me ask 21 a question about -- 22 DR. CHRISTOPHER MILROY: Yeah. 23 COMMISSIONER STEPHEN GOUDGE: -- MRI 24 that's comparable, Dr. Milroy. 25 Do you get the same -- well, let me put it

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1 this way: Is MRI as useful in infant deaths as x-rays 2 are compared to non-infant deaths; that is, you have said 3 x-rays are -- are even more important in infant deaths. 4 Could the same be said of MRIs or -- 5 DR. CHRISTOPHER MILROY: Yes. Yes, it 6 could. Again -- 7 COMMISSIONER STEPHEN GOUDGE: And is that 8 again because of the subtlety of what you might be 9 looking for? 10 DR. CHRISTOPHER MILROY: Well, MRIs 11 especially, have a value in looking into the head, so you 12 can see the brain now very well laid out. And, again, it 13 may direct you to say, Oh, we may well have a subdural 14 hematoma in this case. I mean -- 15 COMMISSIONER STEPHEN GOUDGE: But is the 16 comparative advantage for infants again because of the 17 subtlety -- 18 DR. CHRISTOPHER MILROY: Yes. 19 COMMISSIONER STEPHEN GOUDGE: -- of what 20 you might be looking for -- 21 DR. CHRISTOPHER MILROY: Yes. 22 COMMISSIONER STEPHEN GOUDGE: -- with 23 infants? 24 DR. CHRISTOPHER MILROY: Yes. 25 COMMISSIONER STEPHEN GOUDGE: Okay.

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1 Thank you. All right. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: And, Professor Crane 5 or Dr. Butt, did you want to comment on this issue at 6 all? 7 DR. JACK CRANE: The only thing that I 8 would say is that we won't carry out the autopsy unless 9 we have the results of the skeletal survey because -- 10 MR. MARK SANDLER: You're talking about 11 sudden and unexpected pediatric deaths? 12 DR. JACK CRANE: In pediatric deaths. If 13 we ask for skeletal survey, which we do in all these 14 cases, then the autopsy is delayed until the radiologist 15 gets back to us. 16 If that's -- it's a verbal report than 17 that's fine, but he has to contact us with the 18 information as to whether there's any evidence of boney 19 injury. 20 It's just our practice and if it means 21 delaying the autopsy then -- then we delay the autopsy. 22 MR. MARK SANDLER: And indeed, the Royal 23 College of Pathologists guidelines for SUDs cases make 24 the x-ray mandatory, do they not? 25 DR. JACK CRANE: That's correct.

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1 MR. MARK SANDLER: All right. Dr. Butt, 2 did you want to add anything to what's been said? 3 DR. JOHN BUTT: Only the issue of 4 resources and I mean, I'll leave it at that. There's -- 5 certainly, it would be uncommon in my experience and 6 knowledge for MRIs to be available for corpses anywhere 7 in Canada; they're scarcely available for clinical use at 8 times. And the issue of taking a body into a hospital -- 9 a corpse into a hospital -- into an x-ray department is a 10 problem. Those are all -- you know, those are all 11 housekeeping issues. 12 COMMISSIONER STEPHEN GOUDGE: Those are 13 resource-based issues -- 14 DR. JOHN BUTT: They're resource-based 15 issues -- 16 COMMISSIONER STEPHEN GOUDGE: -- as you -- 17 DR. JOHN BUTT: -- very much so, but -- 18 and in -- in the United States, I don't know the 19 availability of CT scans. I do know that some 20 experimental work has been done with MRIs in the medical 21 examiner's realm in New Mexico, but I think it's highly 22 unlikely that MRIs are used. And -- 23 COMMISSIONER STEPHEN GOUDGE: I hear all 24 three of you saying x-rays are more important than MRIs 25 if one had scarce resources to allocate.

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1 DR. CHRISTOPHER MILROY: Yes. 2 DR. JOHN BUTT: Yes. 3 DR. CHRISTOPHER MILROY: It's easier to - 4 - I mean, there are -- it's very expensive to run an MRI 5 and it's much more complicated even than running a CT 6 scan. You can run a CT scan as is shown in Melbourne, in 7 -- in a department. An MRI would be much more 8 complicated. 9 And just to echo what Dr. Butt has said, 10 CT scan is now pretty routine in hospitals but the 11 concept of if you want to do -- I mean, when people do 12 experiments with MRI, they're doing them at two (2) 13 o'clock in the morning because that's the only available 14 time when patients -- and, you know, and -- you do have 15 to, you know, have a balance with what is available. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. MARK SANDLER: All right. Professor 18 Milroy, we know that Dr. Smith performed a second autopsy 19 on Tiffani on July the 13th of 1993. And if I can take 20 you to the -- back to the overview report, PFP-143440 at 21 page 42. And at paragraph 110, we see that in a 22 memorandum, one of the officers on this case wrote the 23 following with respect to the second autopsy: 24 "He, being Dr. Smith, located 25 additional broken ribs on the left side

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1 in various stages of healing. These 2 injuries, in his opinion, were the 3 result of direct blunt impact. In 4 addition, Dr. Smith noted the victim 5 was extremely thin and had failed to 6 thrive. 7 Records indicated the victim had gained 8 only 550 grams since birth. Dr. Smith 9 indicated further microscopic 10 examinations were necessary before he 11 could give further opinions as to cause 12 of death. And if that accurately 13 represents what Dr. Smith had to say at 14 the conclusion of the second autopsy, 15 was that entirely appropriate? 16 DR. CHRISTOPHER MILROY: That was 17 entirely appropriate. 18 MR. MARK SANDLER: All right. And then 19 we see at paragraph 112 that the same officer spoke with 20 Dr. Bechard of the regional coroner on July the 20th of 21 1993. And his notes of the call provided that -- that 22 Dr. Bechard was advising him that Dr. Smith had located 23 eight (8) to nine (9) ribs that are fractured, 24 particularized the various fractures on the left and 25 right side.

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1 There was a pattern of healing. The 2 fractures were not all of the same age -- now just 3 stopping there for a moment. 4 Again, that conforms with the pathology as 5 -- as you reviewed it? 6 DR. CHRISTOPHER MILROY: Yes. And 7 perhaps just to make it clear, we do use x-rays to try 8 and highlight things, but it has to be said that they 9 don't always pick up all the rib fractures. So they may 10 raise suspicions, but you need to look at all infant 11 deaths carefully because not all rib fractures show up on 12 the x-rays. 13 MR. MARK SANDLER: All right. 14 DR. CHRISTOPHER MILROY: So that's not a 15 surprise that more were found. 16 MR. MARK SANDLER: And then at the 17 following page, page 43, according to Detective Inspector 18 Smith's notes, Dr. Bechard advised him that the baby died 19 of asphyxia, as this is the only cause to show at 20 present. The baby's ribs were injured more than on one 21 (1) occasion. 22 And assuming for the purposes of -- of 23 this question that this is information communicated by 24 Dr. Smith through Dr. Bechard, was that an appropriate 25 observation to make?

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1 DR. CHRISTOPHER MILROY: Well, the first 2 approa -- first, that she died of asphyxia is not 3 appropriate. Obviously, the second one is, -- 4 MR. MARK SANDLER: All right. 5 DR. CHRISTOPHER MILROY: -- about the rib 6 fractures. 7 MR. MARK SANDLER: Now, we're going to go 8 then to the chronology at paragraph 123, page 49 -- 9 COMMISSIONER STEPHEN GOUDGE: It is 10 12:45. 11 MR. MARK SANDLER: All right. We can 12 pick it up -- 13 COMMISSIONER STEPHEN GOUDGE: Is this a 14 good place? 15 MR. MARK SANDLER: It's just fine. Thank 16 you. 17 COMMISSIONER STEPHEN GOUDGE: We will 18 rise then until two o'clock. 19 20 --- Upon recessing at 12:45 p.m. 21 --- Upon resuming at 2:01 p.m. 22 23 THE REGISTRAR: All rise. Please be 24 seated. 25 COMMISSIONER STEPHEN GOUDGE: Mr.

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1 Sandler...? 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Thank you, 5 Commissioner. Professor Milroy, we're -- we're going to 6 return to the overview report, if you have that in front 7 of you -- 8 DR. CHRISTOPHER MILROY: Yes, sir. 9 MR. MARK SANDLER: -- for the Tiffani 10 case. And before the lunch-break we -- you had commented 11 upon the fact that on July the 20th of 1993 the 12 documentation reflects, according to Detective Inspector 13 Smith, that Dr. Buchard (phonetic) communicated the 14 finding that this child had died of asphyxia, and I want 15 to go from July the 20th of 1993 chronologically to the 16 next event that I'm going to refer you to and it's page 17 49, paragraph 123. 18 And that reflects that according to 19 Detective Constable Skinner (phonetic) the following 20 occurred with respect to the arrest of Mary and William 21 on July 23rd, this is three (3) days later, at 7:35: 22 "I knocked at the door and invited in 23 by Mary and William; both were up, we 24 all went into the livingroom, and so 25 on. I then informed both of them that

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1 they were being placed under arrest and 2 being charged for the charges of 3 section 215 and 268." 4 And I don't expect that you have memorised 5 the Canadian criminal code, so... 6 DR. CHRISTOPHER MILROY: Not yet, no. 7 MR. MARK SANDLER: That's failing to 8 provide the necessaries of life and aggravated assault, 9 Professor Milroy. 10 DR. CHRISTOPHER MILROY: Yeah. 11 MR. MARK SANDLER: 12 "I read the charges to them both 13 jointly and so on. The same procedure 14 was then done with both William and 15 Mary. Then following this -- " 16 And this is the last paragraph: 17 " -- I further advised them both that 18 they may be further charged with the 19 murder upon Tiffani and may be charged 20 with criminal negligence causing the 21 death of Tiffani. They both advised me 22 they understood and agreed with me that 23 they need not say anything about the 24 charges and so on." 25 And then if I can move from there to page

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1 51, and you'll see at paragraph 132 at the bottom of the 2 page that on the same date, July 23rd, 1993, it would 3 appear from the documentation that both William and Mary 4 were interviewed by the investigating officers. 5 And we see here, during the interview the 6 detectives discussed the medical findings with William. 7 They indicated that Dr. Smith, who is perhaps the leading 8 expert in Canada, if not, North America, performed the 9 second autopsy and located the additional broken ribs. 10 Detective Inspector Smith explained that 11 the experts made findings consistent with an asphyxia- 12 type death. He stated that Tiffani's death was not 13 caused by Sudden Infant Death Syndrome, which was a 14 negative autopsy; William said he had no explanation for 15 it. 16 And then at the following page, paragraph 17 135, Mary, according to the documentation, is also 18 interviewed on the same date. And at that paragraph it 19 reflects that the detectives indicated to Mary that Dr. 20 Smith had performed a second autopsy which revealed nine 21 (9) rib fractures, petechia on her lungs, which were 22 consistent with asphyxia, and the fact that Tiffani had 23 failed to thrive. 24 We already know quite clearly what your 25 views are on the use of "consistent with". In the

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1 context of those interviews does this heighten or reduce 2 your concern about the use of "consistent with", the use 3 of asphyxia and how they're being interpreted in this 4 case? 5 DR. CHRISTOPHER MILROY: Yes, it does. 6 The basis -- 7 MR. MARK SANDLER: Yes it does, which, 8 I've said heighten or reduce? 9 DR. CHRISTOPHER MILROY: It does cause me 10 concern, and therefore heightens the concern. The -- for 11 the reasons already set out on a number of occasions. 12 The diagnosis in this case of asphyxia was based on non- 13 specific findings. 14 Indeed if you actually look at this case, 15 you would not call it Sudden Infant Death Syndrome, 16 because when you have positive findings such as the -- 17 the -- the weight of the child and the presence of rib 18 fractures, that would take it outside the definition of 19 Sudden Infant Death Syndrome. 20 Although it has to be said that the 21 mechanism that brings about -- logically the death in a 22 Sudden Infant Death Syndrome could still be present. 23 MR. MARK SANDLER: You're talking about 24 for example, a natural mechanism that brings about the 25 death --

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1 DR. CHRISTOPHER MILROY: Yes. 2 MR. MARK SANDLER: -- could still occur 3 even in the presence of historical evidence of abuse. 4 DR. CHRISTOPHER MILROY: Yes, and in -- 5 theoretically -- it must theoretically be possible. We 6 just don't, because of the nature of the classification 7 process call it that. 8 COMMISSIONER STEPHEN GOUDGE: We've 9 chosen to define SIDS -- 10 DR. CHRISTOPHER MILROY: We've just 11 chosen, yes. 12 COMMISSIONER STEPHEN GOUDGE: -- as not 13 including cases where the baby is undernourished or where 14 there are old fractures? 15 DR. CHRISTOPHER MILROY: Correct. But of 16 course the mechanism of death that's actually occurring 17 in a child with older fractures, but then dies sudden and 18 unexpectedly, could have -- must obviously also some 19 cases you would expect encompass the mechanism that -- 20 that SIDS cases die from. 21 In SIDS, -- it should be said that one (1) 22 of those common findings in SIDS is the presence of 23 intra-thoracic petechiae. So there was nothing in this 24 death, say that the mechanism that killed the child 25 wasn't the mechanism -- wasn't natural, if I put it in

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1 those terms. 2 So you -- if you are saying that the death 3 is asphyxial, because there are intra-thoracic petechiae, 4 then every SIDS death is asphyxia. Because the same 5 findings are there. 6 Indeed, there is a chart in one (1) of the 7 standard textbooks by a man called Biard (phonetic) who 8 actually -- well he trained in Canada partly, who has a 9 chart of the frequency of petechiae in -- in three (3) -- 10 in a number of situations, and it's most common in SIDS, 11 less common in drownings and suffocations. So that's 12 another indication that it's not specific for asphyxia. 13 So to go and arrest these persons and say 14 this is consistent with asphyxia, in my opinion, was 15 wrong. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: All right. Now if 19 you'd go with me to page 60 of the overview report, 20 paragraph 156, and I simply want to provide you with some 21 of the context to a systemic question or two (2) that I'm 22 going to direct immediately thereafter. 23 This is headed up discussion with Dr. 24 Smith prior to receiving his report of post-mortem 25 examination. And according to the notes of one (1) of

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1 the officers, on August the 17th of 1993 he called Dr. 2 Smith to discuss the case. 3 His notes indicated: 4 "Dr. Smith advised to date he feels 5 cause of death is an asphyxial mode of 6 death. Difficulty is how asphyxia 7 occurred. More work to be done, will 8 take time. Report will be prepared by 9 early October hopefully." 10 And then you'll see on the same date, on 11 the following page, page 61, Detective Inspector Smith 12 writes to Dr. Smith and in essence he advises him that: 13 "It's now a criminal case. The parents 14 have been charged with aggravated 15 assault and failure to provide the 16 necessaries of life. Interviews have 17 been conducted with both parents and 18 the videotapes of the interviews" 19 Portions which I excerpted for you a few 20 moments ago: 21 "were enclosed for any information that 22 may assist you. During the interviews, 23 Mary recalled three (3) separate 24 incidents where the infant may have 25 injured her ribs, these took place in

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1 the bathtub and have been re-enacted in 2 video, we enclose that video." 3 And then it reflects: 4 "In an effort to prepare our case for 5 court and obtain further evidence of 6 homicide or criminal negligence causing 7 death, if it exists, we would request 8 your written opinion and or findings in 9 the following." 10 And the officer lists: 11 "Cause of death, mechanism, or possible 12 mechanism of death, ability to thrive, 13 injuries on the body of the deceased, 14 the mechanism or possible mechanisms of 15 the injury and any other observations 16 or opinions you may be able to 17 provide." 18 And -- and then you'll see at paragraph 19 158 on the following page and following, and I don't 20 intend to -- to read into the record the three (3) 21 paragraphs that follow but, in essence, at the risk of 22 over-simplification, you'll see as reflected in 23 paragraphs 158, 159, 160 and 161, efforts being made on 24 the part of the police to contact Dr. Smith on various 25 occasions; concerns being expressed by the police about

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1 the delay in receiving Dr. Smith's report of post-mortem 2 examination; an effort to -- to cause the coroner to 3 become involved in assisting and obtaining a timely 4 report, having regard to the fact that -- that people 5 have been arrested and charged with an offence arising 6 out of the matter; and ultimately a determination by the 7 police that a subpoena would be obtained ordering Dr. 8 Smith to appear in court on January 19th, 1994. 9 And if we go to paragraph 162, it reflects 10 that following those events that I've just described, on 11 January the 17th of 1994, Detective Constable Skinner -- 12 and this is two (2) days before the subpoena was to be 13 effective in court -- he met with the Crown, Ms. Walsh, 14 Dr. Bechard, Coroner, and Dr. Smith, and he communicated 15 in his Will State what he understood Dr. Smith to say: 16 "Dr. Smith advised us his opinion as to 17 the cause of death of Tiffani was 18 asphyxia. He told us he could not be 19 specific whether or not the injuries 20 occurred all at once due to the make up 21 of the ribs and the healing process. 22 The rib fractures -- the rib injuries, 23 nine (9) fractures, however, are not 24 isolated to one (1) area. He suspects 25 strangulation of the baby."

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1 Stopping there for a moment. You're in 2 the situation where, as the forensic pathologist, you're 3 alive to the fact that the police are awaiting your input 4 on various issues, including whether or not this is a 5 homicide case and whether the pathology supports the 6 existence of homicide charges. 7 Against that background, if this is an 8 accurate reflection of what Dr. Smith communicated, what 9 are your comments? 10 DR. CHRISTOPHER MILROY: Well, my first 11 comment in respect to the request to give a written 12 opinion setting out the cause of death, the mechanisms, 13 and so on, that was in -- well, that was in paragraph 14 157, that is precisely what one would do in an autopsy 15 report. So they should those -- most of those questions 16 should have been answered in the autopsy report because 17 the conclusions should have gone to those very points. 18 MR. MARK SANDLER: Now -- now in 19 fairness, this is before -- these are questions that are 20 being posed before Dr. Smith has produced the post-mortem 21 report. So it can't be said at that point that the post- 22 mortem report was flawed in failing to address -- 23 DR. CHRISTOPHER MILROY: No. 24 MR. MARK SANDLER: -- these issues. 25 DR. CHRISTOPHER MILROY: But they -- that

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1 -- but that is precisely what you would expect to produce 2 in writing. If then, points of clarification are 3 required, either the police would write to me in the UK 4 or the Crown Prosecution Service would -- lawyer would 5 write for points of clarification. 6 If -- I've already given my opinion on -- 7 there wasn't evidence to substantiate asphyxia. The rib 8 fractures are another matter and so is weight of the 9 child. 10 If it is correct that Dr. Smith 11 communicated to the police that he suspected 12 strangulation, there was no evidence to support that. 13 And by strangulation, I take it to mean compression of 14 the neck either by ligature or manually. 15 Those are the -- so I would have -- 16 clearly, I would have concerns if that is correct. And 17 of course it's coming from the police officer not from 18 Dr. Smith. 19 MR. MARK SANDLER: All right. And if we 20 can go to the -- Dr. Smith's report of post mortem 21 examination, which is summarized at page 68 of the 22 overview report. And we see that in paragraph 171 that 23 it would appear that there was also another use of 24 italics or -- or that's identified here at paragraph 171 25 when it says:

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1 "This report includes some information 2 which was recorded by Dr. Cassidy." 3 And as we'll recall before lunch, Dr. 4 Cassidy prepared the first report of post-mortem 5 examination, is that right? 6 DR. CHRISTOPHER MILROY: Yes. 7 MR. MARK SANDLER: The information from 8 Dr. Cassidy's written notes is written below in italics. 9 And you've reviewed the post-mortem report of Dr. Smith, 10 and if you could look to the findings that are abnormal 11 at page 70, paragraph 176, and I expect that -- that you 12 can address in somewhat summary fashion what you have to 13 say about the abnormal findings. 14 I'm interested in your comments on all of 15 them, but in particular item 6, where in parenthesis is 16 marked malnutrition and then a note is placed: 17 "The autopsy findings point to an 18 asphyxial mode of death, the etiology 19 of which cannot be determined on this 20 examination. Of note are the presence 21 of bilateral healing rib fractures, 22 which in the absence of inadequate 23 explanation are considered to be non- 24 accidental in nature. The cause of 25 death is listed as asphyxia."

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1 Could you comment upon the abnormal 2 findings and cause of death? 3 DR. CHRISTOPHER MILROY: Yes. Well, 4 firstly, as with child abuse -- it's a minor point, but 5 whether sudden and unexpected death is technically a 6 finding is a -- that's almost more the history then the - 7 - then an abnormal pathological finding. 8 COMMISSIONER STEPHEN GOUDGE: It is not a 9 defined category like SIDS? 10 DR. CHRISTOPHER MILROY: No. No, it's 11 just saying that the child's died suddenly and 12 unexpectedly, but then so it someone who's shot. The -- 13 then we have the comments really about the -- the use of 14 pulmonary petechiae and cerebral edema that have already 15 been made. 16 I -- I don't disagree with the comments 17 about the rib fractures. Certainly, that -- it looks 18 like this child is malnourished because the body's below 19 the third percentile for weight, and the body length and 20 head circumstance is the fifth percentile. 21 But before one comments further upon that, 22 one would want to see the growth charts of the child 23 since birth because if the weight's falling off it's more 24 significant than if the child has carried along -- along 25 the third centile. It may be just be a small child.

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1 So we've already commented that I wouldn't 2 know that (malnutrition) in brackets meant that this 3 wasn't something that could substantiated reading this 4 report. And I until I saw the explanation it wasn't a -- 5 it wasn't a convention I was aware of. 6 COMMISSIONER STEPHEN GOUDGE: When you 7 say, "explanation" you are referring to the explanation 8 we read this morning about -- 9 DR. CHRISTOPHER MILROY: Given in 10 testimony -- given in testimony. 11 COMMISSIONER STEPHEN GOUDGE: Not about 12 malnutrition, -- 13 DR. CHRISTOPHER MILROY: About the use of 14 parenthesis. 15 COMMISSIONER STEPHEN GOUDGE: -- but 16 about the use of parenthesis? 17 DR. CHRISTOPHER MILROY: Yes. 18 COMMISSIONER STEPHEN GOUDGE: Yes. 19 DR. CHRISTOPHER MILROY: And I've said 20 that the -- a child -- there is a prima facia case, if 21 you like, that a child below the third centile is 22 malnourished. The point being that that falls outside -- 23 97 percent of all children will have a weight -- a weight 24 greater. 25 But if the child has progressed in weight,

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1 but along the third percentile since birth then that 2 wouldn't be an indication of -- necessarily of 3 malnutrition. And I've already made my comments about 4 the asphyxia. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: All right. Now, if we 8 can move from here to page 73 of the overview report. 9 And after this report of post-mortem examination dated 10 January the 17th of 1994 we see that at paragraph 181, 11 page 73, Detective Inspector Smith reflects that on 12 February the 25th he attended a meeting at the Chief 13 Coroner's office with Dr. Smith and others, including the 14 Crown, and where he records: 15 "Dr. Smith cannot give definite 16 mechanism of death as insufficient 17 material available from autopsy to give 18 or make absolute determination as to 19 method of death; suspects homicide, but 20 cannot absolutely..." 21 And there's obviously a word missing 22 there. 23 "...scientific determination." 24 And we'll see in the following paragraph, 25 paragraph 182, the Crown, in a memorandum to another

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1 Crown, dated March the 21st, states that: 2 "Dr. Smith would say that he can find 3 no evidence of disease or non- 4 suspicious reason for Tiffani to have 5 stopped breathing. He cannot, however, 6 rule out completely reasons such as 7 disease. He can, however, say that his 8 findings are consistent with Tiffani 9 being intentionally suffocated; if 10 Tiffani died for any common disease- 11 related reason, this could have been 12 detected if she had been taken to a 13 doctor and would probably be alive. 14 And there cases, although extremely 15 rare, of certain diseases or disorders 16 that may have caused Tiffani to stop 17 breathing which may have not been 18 detected by medical health 19 professionals." 20 Now, I'll just ask you, does it alleviate 21 the concerns that you earlier expressed about what the 22 police and Crown were taking from -- from his comments 23 that Dr. Smith, if this is accurate, was indicating that 24 he could not make an absolute determination of the method 25 of death, although he suspected homicide and that his

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1 findings were consistent with Tiffani being intentionally 2 suffocated, but could not rule out certain kinds of 3 diseases or disorders? 4 DR. CHRISTOPHER MILROY: Well, I think 5 that this -- obviously I'm concerned about the way that 6 they're consistent with intentionally suffocated is used 7 for the reasons already outlined. 8 The commonest cause of sudden and 9 unexpected death in infancy in this age group is the so- 10 called SIDS. So in fact, the commonest cause of death in 11 this age group, which is -- we believe to be natural, has 12 no positive findings. 13 So, in fact, it's not just rare disorders 14 that, you know, can't be ruled out; the -- this is 15 actually the commonest finding in this age group for 16 natural death is you don't find anything. 17 So, it -- in my opinion, it was 18 inappropriate to lay weight on that this could be 19 suffocation because what should have been said is this 20 was -- this was an undetermined cause of death, and that 21 shou -- that's where it had to be left. 22 You cannot -- you can neither positively 23 assert that this was an intentional suffocation, nor can 24 you actually refute it. 25 MR. MARK SANDLER: All right. And we see

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1 at page 74 that on March the 23rd the decision is made to 2 charge Mary and William jointly with manslaughter and 3 that those charges would be coupled with the previous 4 charges that had taken place. 5 And then if we can move from that 6 paragraph to -- to the events that -- that followed. And 7 if I can direct you to paragraph 196 at page 79, and 8 we'll see under this paragraph that on November the 25th 9 of 1994 an amended medical certificate of death was 10 signed stating that the immediate cause of death was 11 asphyxia. 12 And I'll just ask you, in the context of 13 the English and Wales system does it share the 14 characteristic of the Ontario system that the ultimate 15 determination as to cause and manner of death rests with 16 the coroner also responsible for the signing of the 17 medical certificate of death? 18 DR. CHRISTOPHER MILROY: A medical 19 certificate of the cause of death would be signed by a 20 medical practitioner. A coroner's certificate of the 21 cause of death would be a signed by a coroner. And so if 22 there was a post -- if the coroner -- I think that's my 23 understanding of it. 24 So, in fact, there is a medical 25 certificate of the cause of death which is where the

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1 coroner doesn't have any involvement. 2 Where the coroner has the involvement, 3 ultimately the cause of death is signed by the coroner 4 and then the coroner will determine manner of death, 5 either if it's natural at that time or after inquest, if 6 it's an unnatural one. 7 MR. MARK SANDLER: All right. If you'd 8 turn to page 80 of the overview report, under the heading 9 "Discussion Prior to Preliminary Inquiry". In a letter 10 dated April 6th, 1994, to Dr. Smith the Crown, Ms. Walsh, 11 indicated that she had recently reviewed Tiffani's file 12 in preparation for the laying of manslaughter charges. 13 She requested Dr. Smith's assistance with certain 14 questions which are listed there. 15 In the letter, she also stated: 16 "I would ask me -- I would ask that you 17 provide to me your opinion in writing 18 concerning Tiffani's cause of death. 19 In particular, I would ask that you 20 address the issues relating to the 21 charge of manslaughter. It's my 22 understanding that your opinion in 23 general is as follows: 24 Your findings are consistent with an 25 intentional suffocation mode of death;

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1 Your findings are consistent with a 2 cause of death resulting from the 3 failure of Tiffani's parents to take 4 her to a medical doctor; 5 There are one (1) or more medical 6 conditions which you are aware of which 7 Tiffani might have been suffering from 8 which may have caused her death which 9 may not have been detected by a medical 10 doctor if Tiffani had been taken for 11 appropriate medical checkups. 12 I understand you cannot rule out these 13 conditions and would ask that you 14 mention specifically, if you can, what 15 those conditions are." 16 And then you'll see that in a follow-up 17 letter on June the 3rd of 1994, reflected at paragraph 18 202 at page 81, Ms. Walsh says that: 19 "In addition to the above, would you 20 kindly provide your opinion in writing 21 concerning the possible causes of 22 death." 23 And she says: 24 "As you've indicated to me in 25 conversation, it is your opinion that

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1 your observations are consistent with a 2 cause of death resulting from 3 intentional asphyxia by another party." 4 And then skipping down: 5 "As is obvious from the above, the 6 defence will have consulted another 7 pathologist prior to cross-examining 8 you. It is important and our 9 responsibility that we advise the 10 defence specifically of your opinion 11 concerning the cause of death and 12 possible causes of asphyxia. Would you 13 kindly provide that opinion in writing 14 at the same time as you provide the 15 material to the defence pathologist..." 16 And I haven't read you the portion where - 17 - where she has requested that certain material be 18 provided for the use of the defence pathologist as well. 19 "...if not before then." 20 And then moving ahead to paragraph 206 at 21 page 83. In a later memorandum to another Crown 22 attorney, Ms. Walsh said the following with respect to 23 her requests for a written opinion from Dr. Smith: 24 "After the charge was laid, in 25 preparation for the preliminary

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1 inquiry, I asked Dr. Smith to put his 2 opinion as to the cause of death in 3 writing. Dr. Smith has, as far as I 4 understood, agreed to do this. I made 5 several requests, both through 6 telephone messages and in writing for 7 this report for the purpose of 8 disclosure. I have included for your 9 assistance a memo from Inspector Smith 10 to Dr. Bechard indicating that 11 Inspector Smith also made requests 12 without success. 13 I recall that I did reach Dr. Smith by 14 phone in connection with the unanswered 15 requests. He told me that he had 16 consulted the coroner's counsel and 17 received advice that he was not under 18 any obligation to provide any opinion 19 in writing other than the post-mortem 20 report he had prepared. 21 I advised Dr. Smith that if he did not 22 wish to put his opinions in writing, 23 the court would no doubt adjourn the 24 preliminary hearing after his evidence- 25 in-chief to allow the defence to

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1 properly prepare for cross-examination. 2 Dr. Smith would then be obliged to 3 travel to Belleville to give evidence 4 twice instead of just once. Dr. Smith 5 did send something after this phone 6 conversation but for some reason it is 7 not in the material." 8 And rather than read further from -- from 9 that memorandum I'll take you, finally, in this 10 connection to the following paragraph because we do have 11 Dr. Smith's letter written to Ms. Walsh dated August the 12 6th, 1994, and he says: 13 "I'm writing in reply to your unusual 14 request for information in your letter 15 of June 3rd, 1994. The initial autopsy 16 examination of Tiffani found evidence 17 of an asphyxial mode of death. Within 18 the limits of a review and second 19 autopsy, these findings were confirmed. 20 In general the cause of some forms of 21 asphyxia can be determined at post- 22 mortem examination. For example, 23 ligature marks, hot dog obstructing the 24 trachea. Well in many instances the 25 etiology of an asphyxia can not be

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1 determined on morphologic grounds 2 alone. Asphyxia does not necessarily 3 indicate that the death was accidental 4 or non-accidental, because there are 5 some forms of natural disease which 6 have an asphyxial mechanism as well. 7 Tiffani's autopsy findings do not 8 indicate the cause of asphyxia. They 9 are consistent with a non-accidental 10 event such as suffocation. However, 11 the examinations do not rule out the 12 possibility of a natural disease 13 causing her death." 14 Now I want to ask you a series of systemic 15 questions arising out of a rather lengthy portion, isn't 16 it, that I've read to you. The first is, that -- that 17 you've seen Ms. Walsh's characterizations before 18 receiving the written response from Dr. Smith about what 19 she understood as a result of conversation, his opinions 20 to be, including findings consistent with an intentional 21 suffocation mode of death. 22 And this is already undoubtedly self 23 evident, but did those expressions of what the Crown 24 took, rightly or wrongly from Dr. Smith's verbal 25 communications, cause you concern?

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1 DR. CHRISTOPHER MILROY: Yes. For the 2 reasons laid out that the -- stating that this was 3 consistent with intentional suffocation doesn't place any 4 weight upon the validity of that statement. 5 MR. MARK SANDLER: And similarly when she 6 said his observations as she understood it: 7 "are consistent with a cause of death 8 resulting from intentional asphyxia by 9 another party." 10 Same concern? 11 DR. CHRISTOPHER MILROY: Same concerns. 12 MR. MARK SANDLER: And then when -- when 13 the documentation, if accurate, appears to reflect some 14 difficulty securing an answer in writing to the questions 15 that were being posed by the Crown, including 16 confirmation of what it was that he was saying, and -- 17 and his response that he was -- he had sought legal 18 advice, that he was under no obligation to provide it, 19 and that he characterized it as an unusual request. 20 I have several questions arising out of 21 that. The first is, is it an unusual request in England 22 and Wales for clarification to be sought in writing of 23 the content of a report of post-mortem examination? 24 DR. CHRISTOPHER MILROY: It is not -- 25 it's common to -- for clarification to be sought. And

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1 indeed the Court of Appeal have laid out that we must 2 give our opinions in writing. I think in the Bow -- 3 Bowman (phonetic) lays that out, in dealing with how an 4 expert should prepare a report. 5 So we are -- we are -- we have a duty to 6 lay out our op -- our opinions in writing. And if our 7 opinions change, we have a duty to inform the appropriate 8 authorities in writing as well. 9 COMMISSIONER STEPHEN GOUDGE: And would 10 that writing normally go beyond your autopsy report -- 11 DR. CHRISTOPHER MILROY: What it can do-- 12 COMMISSIONER STEPHEN GOUDGE: -- that is, 13 be more elaborate? 14 DR. CHRISTOPHER MILROY: Well there would 15 be a whole series of conclusions, and then what often 16 happens is that the Crown prosecution service come to me 17 and they say, I need some points of clarification. 18 It doesn't always happen, but it can 19 happen. Can you answer the following questions? And 20 they will often list the questions, and then I will, in 21 writing, go back to them laying out the answers to the 22 questions. 23 COMMISSIONER STEPHEN GOUDGE: So if one 24 put that report beside your autopsy report, you would see 25 the first being more elaborate then the second, the

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1 autopsy report? 2 DR. CHRISTOPHER MILROY: Well, no. The 3 autopsy will have a series of conclusions in it anyway. 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 DR. CHRISTOPHER MILROY: So it would have 6 pretty much all of the questions that were asked of -- by 7 Ms. Walsh in the first place. And then there may be 8 short or long clarification depending on the questions 9 that were asked. 10 COMMISSIONER STEPHEN GOUDGE: All right. 11 DR. CHRISTOPHER MILROY: But they would 12 be supplemental to the -- to the original autopsy report. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. And, the 17 other issue that's raised systemically by the 18 correspondence or memoranda that I read to you is a lack 19 of timeliness in receiving first, the post-mortem report, 20 and, second, any written follow-up as being requested by 21 the Crown. 22 Is the timeliness or lack thereof of post- 23 mortem reports in England and Wales an issue? 24 DR. CHRISTOPHER MILROY: Well, we can all 25 be guilty of not being the fastest reporters. And

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1 obviously that varies on workloads and so on, but the 2 nature of our criminal justice system is such that we 3 have abolished committals and preliminary hearings in 4 respect of these cases. 5 After charge, a person is placed before a 6 magistrate's court the next day, and then they have to 7 appear before a Crown court judge by the eighth day. And 8 at that hearing a process is laid out as to the -- the 9 conduct of the case, and at the plea and directions 10 hearing the judge will lay out when reports have to be 11 served by. 12 So we are under judicial pressure to 13 produce our reports. And so the police will -- I will 14 often say to the police, if I've got a long and 15 complicated case, what are the times by which I must 16 produce my report. And they'll say, we have to have the 17 file in by the, you know, 12th of March, so we'll need 18 your report a week before then. 19 So we know when we're going to have to 20 produce our reports by. And the process can now be 21 incredibly quick. I have dealt with cases where we're 22 having from -- from death of the vic -- victim to murder 23 trial in five (5) -- I've seen one in four (4) months. 24 So we're not -- we have -- we can't hang 25 around producing our reports.

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1 MR. MARK SANDLER: All right. And if I 2 can now go to page 87. And at paragraph 210, this is a 3 memorandum to the file from one (1) of the Crown 4 attorneys on the case prior to the commencement of the 5 preliminary inquiry. 6 And it reflects, if accurate, a telephone 7 conversation that the Crown had with Dr. Smith on that 8 date. And it provides that: 9 "He advised me that the death could 10 have been natural causes. He indicated 11 it was difficult to tell because of the 12 botched first autopsy. He indicated 13 that the terminal event was an 14 asphyxial death, but that he could not 15 be any more certain about it than that. 16 He indicated that he could not rule out 17 some unusual natural diseases. He said 18 that these are rare and unusual and may 19 not be seen by some pathologists in 20 their entire career. He indicated that 21 the child's malnourishment may also be 22 due to some natural diseases. He 23 couldn't say that the asphyxia was 24 accidental or non-accidental. He could 25 not diagnose it as SIDS because this is

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1 a diagnosis of exclusion, and he wasn't 2 able to see all that the first 3 pathologist would have been able to 4 see. He did indicate that the child 5 should have been brought to the doctor. 6 Even if the death was natural causes, 7 it's possible that some things that 8 caused her death may have been detected 9 by the physician. His diagnosis was 10 based partly on Dr. Cassidy's autopsy, 11 and, therefore, if there are problems 12 in Dr. Cassidy's autopsy that would 13 affect Dr. Smith's conclusions. The 14 death was consistent with suffocation; 15 however, he also indicated that it was 16 not inconsistent with non-intentional 17 suffocation. In short, his conclusion 18 is that we cannot prove it was a crime 19 because of the botched first autopsy. 20 It appeared to me that Dr. Smith is 21 severely backtracking from what I 22 understood his position to be, 23 particularly given the conclusions he 24 purportedly stated as reflected in 25 Sheila's (phonetic) letter to him of

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1 April 4, 1994. He indicated to me that 2 Dr. Bechard and the police thought this 3 was a crime, and were trying to 4 convince him that the conclusion should 5 be consistent with that, but that he 6 just could not be so certain." 7 Now, several questions arising out of this 8 memorandum. The first is that, if accurate, Dr. Smith 9 has said that it was difficult to make the determinations 10 that he would otherwise like to make because of the 11 botched first autopsy. Any comment on that? 12 DR. CHRISTOPHER MILROY: Well, I -- if 13 you believe that there has been an inadequate first 14 examination, you need to state so in your conclusions. 15 You need to say what was done, what was not done, what 16 should have been done and lay out how that affects your 17 opinion. 18 What is missing or what destructive 19 process has been done that makes it impossible for you 20 now to correctly analyze the data from the autopsy. 21 MR. MARK SANDLER: Did you form an 22 opinion as to whether the first autopsy was appropriately 23 characterized as a, quote, "botched," closed quote, one. 24 DR. CHRISTOPHER MILROY: When I first 25 looked at my review, I wasn't -- I wasn't provided with

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1 the ancillary investigations. And -- but, in fact, they 2 -- ancillary investigations were conducted. 3 Now, they may be more comprehensive in 4 2007, but there was -- there were additional things done. 5 So, there was a reasonably comprehensive autopsy done. 6 But I don't know what Dr. Smith is saying by the "botched 7 first autopsy." In other words, I don't know what he 8 says should have been done that wasn't. 9 But certainly there doesn't appear to have 10 been vitreous humor on examination of the eye fluids for 11 electrolytes that can tell you whether somebody was 12 dehydrated or not. 13 That's something that I haven't -- I don't 14 obvious -- I haven't found the results, if they're -- if 15 in existence then, I'm -- I'm -- I'm glad to acknowledge 16 that. 17 Some of -- I mean some, of these things 18 that are referred to -- certainly some of the -- I'm not 19 quite sure what the -- I don't think anyone knows what 20 the "verity, question mark, train transport defects" is 21 supposed to mean. 22 There are -- there are -- there are 23 various elec -- there -- there are various electrical 24 disorders of the heart, for example, that one can't 25 identify, but never could.

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1 Fatty acid defects can be identified by 2 conducting metabolic studies, so that they may not have 3 been looked for and, therefore, they can't be entirely 4 ruled out. 5 But if he couldn't rule them out, then he 6 should have said so. He -- these should have been 7 expressed at the time, because it's -- you must base your 8 opinion on the data. And if some of the data isn't 9 there, you have to say so. 10 And again, this is what we are now 11 instructed to do from the Court of Appeal. Lay out the 12 reasons for your opinions. If there are contradictory 13 opinions that can be expressed that are against your 14 opinion, you must also state them, so that the Court has 15 the full information. 16 MR. MARK SANDLER: All right. Now in 17 fairness to Dr. Smith, again, if this accurately reflects 18 what he had to say, there could be little doubt that -- 19 that he's articulating the -- the fact that this cannot 20 be proven to be a crime. 21 And that he would appear to be explicit 22 here in the use of the term "consistent" when he says 23 that: 24 "The death was consistent with 25 suffocation, but also not inconsistent

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1 with non-intentional suffocation." 2 Leave aside the grammatical quagmire that 3 -- 4 DR. CHRISTOPHER MILROY: Yes. 5 MR. MARK SANDLER: -- that poses for the 6 reader. But -- but the -- the sentiment appears to be 7 fairly clear. 8 DR. CHRISTOPHER MILROY: Well, I think 9 that this harks back to what we were saying yesterday, 10 where the Court of Appeal in Poacher (phonetic) said, The 11 use of consistent with can confuse. 12 MR. MARK SANDLER: All right. It 13 certainly has confused me. 14 DR. CHRISTOPHER MILROY: Because, you 15 know, too much trust can be laid upon it, and I think 16 that's what's happened in this case. And it should have 17 been spelled out in writing from the start. 18 MR. MARK SANDLER: So -- so giving Dr. 19 Smith his due on this memorandum, which is that -- that 20 he's articulating, again, if accurate, fairly clearly 21 that -- that one can't prove that this is a crime based 22 upon the pathology. 23 Does that alleviate the concerns that 24 you've expressed about how this case has proceeded? 25 DR. CHRISTOPHER MILROY: Well, it doesn't

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1 alleviate the concerns, because it must be wrong for 2 someone to be charged with a serious offence when there 3 is -- there isn't the evidence to support it. 4 There were -- I mean, what is conscious 5 for example that -- I mean it didn't happen in this case, 6 but we're -- you've got be conscious of what happens if - 7 - if you have little evidence and someone is charged. 8 People may react in a -- in a variety of 9 methods, including killing themselves, on the face of a 10 serious charge. And if you're doing it on the basis that 11 there's no really positive evidence, the consequences can 12 be very serious for a variety of reasons. 13 So, there's clearly still questions about 14 the conduct. Some of the charges in this case -- there 15 is clearly other evidence in terms of the other charges, 16 but in terms of the homicide charge, in my opinion, there 17 was never sufficient evidence to charge somebody, 18 certainly among pathology alone. 19 If there had been confession evidence or 20 some other evidence, well so be it. But that's not the 21 concern of the pathologist. 22 MR. MARK SANDLER: Now, the concern as 23 expressed by the Crown here and whether Dr. Smith is 24 backtracking from what the position was earlier 25 communicated, and -- and I take it this reinforces a

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1 point that Professor Crane made yesterday, and that is 2 that putting matters in writing assists, not only on 3 issues of transparacy -- transparency, but to avoid mis- 4 communication, or misinterpretation, or over 5 interpretation, or under interpretation of what the 6 pathologist has had to say. 7 DR. CHRISTOPHER MILROY: Precisely. 8 MR. MARK SANDLER: Now, if we can look 9 briefly at the Preliminary Inquiry testimony that was 10 given by Dr. Smith, and -- and I don't intend to review 11 it in the same detail as -- as other transcripts have -- 12 have been reviewed. 13 I -- I think it's fair to say that if one 14 looks at various paragraphs, and you had an opportunity 15 to read this, a number of concessions are made by Dr. 16 Smith concerning the nonspecific character of cerebral 17 edema here, the nonspecific character of petechial 18 hemorrhages of the pulmonary pleura and the like, and -- 19 and you've seen those concessions -- 20 DR. CHRISTOPHER MILROY: Yes. 21 MR. MARK SANDLER: -- that were made in 22 the course of his testimony. I just want to ask you 23 about several things that -- that arise in his testimony. 24 And if you'd look at page 94; and we see in the -- in the 25 middle of the page about halfway -- or about two-thirds

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1 (2/3) of the way through the very lengthy quote, the 2 passage that I put to Dr. Butt in the course of Dr. 3 Butt's testimony on the Baby M case. 4 Just to put this in context for the 5 Commissioner, here is that portion of the transcript from 6 Dr. Smith where he explains the use of parenthesis in the 7 context of malnutrition. 8 Is that right? Do you see that; it starts 9 with: 10 "Now, one of the standards in pathology 11 when listing anatomic..." 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. MARK SANDLER: 14 "...diagnosis." 15 DR. CHRISTOPHER MILROY: That's it, yes. 16 MR. MARK SANDLER: All right. 17 COMMISSIONER STEPHEN GOUDGE: Sorry, is 18 it in the middle of this long quote here? 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: It is. It's -- I'll 22 ask our registrar just to highlight it for us. 23 DR. CHRISTOPHER MILROY: I think it's 24 eleven (11) lines up, or thereabouts, from the bottom of 25 that paragraph, Commissioner. Yes.

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1 MR. MARK SANDLER: Through the magic of 2 modern technology and a very capable Registrar, it's -- 3 COMMISSIONER STEPHEN GOUDGE: Better than 4 I am. Okay, thanks. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Ask for it and you 8 shall have it. And so that's the passage that was made 9 reference to -- 10 DR. CHRISTOPHER MILROY: Yes. 11 MR. MARK SANDLER: -- earlier in the day? 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. MARK SANDLER: And -- and then the 14 questioning goes on to say: 15 "Okay, I take it one of the things 16 you'd be saying, though, it's not a 17 cause of death or causes of the 18 asphyxia. No, no, malnutrition is not. 19 I mean, I can talk about how the other 20 things may tie into the cause of death, 21 but certainly I cannot attribute 22 malnutrition to that. Now, we can 23 speculate that perhaps whatever caused 24 her malnutrition also caused her death 25 and so it may be a pointer, but it, in

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1 and of itself, is not directly 2 responsible for her death." 3 What would your comment be on that 4 testimony? 5 DR. CHRISTOPHER MILROY: Well, I -- I 6 actually think that of -- of the two (2) -- of whether it 7 was malnutrition or asphyxia, there is more evidence for 8 this death being malnutrition than -- than it is being 9 asphyxia. But to substantiate the diagnosis of 10 malnutrition one would need further data. 11 It's correct that malnutrition did not 12 cause the asphyxia and is not related to the asphyxia. 13 Indeed, if you are proposing that this was an intentional 14 suffocation, then the malnutrition would be really 15 nothing to do with it because, of course, you don't have 16 to be malnourished to be smothered. 17 So, clearly the -- the malnutrition and 18 the asphyxia are separate. As to there being a cause for 19 the malnutrition, in terms of natural disease, nothing 20 was found, and you would have expected, I think, 21 something to have been found to account for the 22 malnutrition. 23 MR. MARK SANDLER: And what about -- 24 leaving the aside the substantive merits of -- of Dr. 25 Smith's opinion, assuming his opinion, as we -- as we

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1 understand it, what about the language: 2 "Whatever caused her malnutrition also 3 caused her -- perhaps whatever caused 4 her malnutrition also caused her death 5 and so it may be a pointer but, in it 6 and of itself, is not directly 7 responsible for a death." 8 DR. CHRISTOPHER MILROY: Well, that's 9 just -- either malnutrition is the cause of death of 10 itself, but it isn't appointed to asphyxia. I mean, if 11 you're -- they're -- they're really two (2) separate 12 entities and I know of no natural disease processes that 13 causes both malnutrition and asphyxia at the same time. 14 MR. MARK SANDLER: Well, isn't this -- I 15 mean when one says "isn't it a pointer" -- 16 DR. CHRISTOPHER MILROY: But it's not a 17 pointer. 18 MR. MARK SANDLER: It's not a pointer 19 pathologically. 20 DR. CHRISTOPHER MILROY: Yes. 21 MR. MARK SANDLER: It could be a pointer 22 in the sense that the Crown could rely upon it as 23 circumstantial evidence to show that a child was abused 24 and, therefore, some evidence on the issue is before the 25 court, I take it?

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1 DR. CHRISTOPHER MILROY: Well, that's -- 2 yes. That's outside the pathology ev -- they can say 3 that there's general evidence of neglect and abuse of the 4 child. 5 MR. MARK SANDLER: And this is the same -- 6 DR. CHRISTOPHER MILROY: Whether -- 7 MR. MARK SANDLER: Sorry. 8 DR. CHRISTOPHER MILROY: Whether they 9 then want to draw the conclusion that they're more -- 10 someone who allows their child to be malnourished and 11 abused with the rib fractures is more likely to be 12 suffocated is -- is not a matter for a pathology 13 evidence. It's -- that's a matter for the tribunal. 14 MR. MARK SANDLER: And this is the very 15 same point that Professor Crane made in relation to one 16 (1) of his cases yesterday. 17 DR. CHRISTOPHER MILROY: Yes. 18 MR. MARK SANDLER: Now if you look at 19 page 95, Dr. Smith said the following about cause of 20 death: 21 "Let me make two statements here. 22 Number 1 is, I've listed the cause of 23 death as asphyxia, and we can argue 24 whether or not that's truly a cause of 25 death. And you'll see in the note that

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1 I wrote above that I've really, really 2 indicated or attempted to indicate that 3 asphyxia is not really a clear 4 pathological cause of death here, but 5 really is more of a statement as to a 6 mode of death or a mechanism of death 7 as opposed to the underlying event 8 which led to death. So, while Dr. 9 Cassidy's examination, as I was able to 10 review it, and my examination would 11 suggest that the final event in 12 Tiffani's life was an asphyxial-type of 13 event, I don't have an explanation for 14 that. So the second statement I would 15 make is that, excuse me, it may be best 16 to think of her death yet as an 17 undetermined cause of death. And so 18 that's -- and so that's really part of 19 my struggle in this case. Though I'm 20 suspicious that whatever killed her 21 had, as a final mechanism, an 22 asphyxial-type mechanism. I don't yet 23 know what it was that killed her; 24 whether it was a natural disease or 25 some accident or some non-accidental

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1 event. 2 "Q: Could it be consistent or not 3 consistent with some form of 4 suffocation?" 5 "It's consistent with that, yes." 6 So let's unpack some of the concepts that 7 are contained in there for a moment. 8 In effect, one (1) of the messages 9 communicated through that passage is that asphyxia may 10 more properly be thought of as a mode or mechanism, 11 rather than a cause of death, and it may be best to think 12 of the death here as undetermined. 13 What's your comment about that? 14 DR. CHRISTOPHER MILROY: I agree with 15 that. This was an undetermined cause of death and 16 asphyxia is a mode of death but not a mecha -- not a 17 cause. But it was, it has to be said, stated as a cause 18 of death in the report. 19 MR. MARK SANDLER: All right. And, 20 similarly, when he says: 21 "I'm suspicious that whatever killed 22 her --" 23 COMMISSIONER STEPHEN GOUDGE: When you 24 say "mode" - sorry, Mr. Sandler - you equate that to 25 mechanism?

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1 DR. CHRISTOPHER MILROY: No, they're 2 different. A mode of death -- a mode and a mechanism may 3 be different, because the mode is -- I mean, for example, 4 heart failure is a mode of death, and the mechanism that 5 brings that about may vary. So they are slightly differ 6 -- they are different, but in this context they almost 7 equate to be the same. 8 He's saying, Well, I think this is 9 asphyxia; the exact mechanism is asphyxia, whether it's 10 smothering or its some natural disease process. Taking 11 his opinion, it cannot be determined. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Could you -- could you 15 just take a moment and provide the Commissioner with an 16 example of a case in which you identify the cause of 17 death as opposed to the mode of death as opposed to the 18 mechanism of death as opposed to the manner of death. 19 DR. CHRISTOPHER MILROY: Yes. Well, you 20 usually talk about mode cause -- to be honest, you 21 usually typically talk about mode, cause and manner; 22 those are three (3) things. And, in fact, on -- on the 23 medical certificate of the cause of death, you are not 24 supposed to state modes. And if you state a mode, you 25 should clarify it with a cause.

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1 So, if you -- if you wrote down acute 2 renal failure as a -- that would be a mode of death and, 3 in fact, the death certificate should not be accepted by 4 -- in England -- by the Registrar of Births, Deaths and 5 Marriages and it should be bounced back to the coroner or 6 bounced to the coroner from a -- from a doctor. 7 So, acute respiratory failure, acute heart 8 failure, asphyxia; these are all, if you like, in those 9 terms, modes. 10 MR. MARK SANDLER: And why are they modes 11 of death? 12 DR. CHRISTOPHER MILROY: Because they 13 just show the way the person is dying, but they don't say 14 why they have died. It doesn't give the cause. So, if 15 you have heart failure, as a -- well, say you've had 16 hemoparicardium as a -- you put hemoparicardium on the 17 cause of death, which means blood in the sac that 18 surrounds the heart. 19 The registrar of Births, Deaths and 20 Marriages will be told in their training, hemoparicardium 21 can be due to a ruptured miocardialifarct, which is 22 natural, or can be due to a stab wound of the heart, 23 which is unnatural. 24 So you -- so it -- without clarification, 25 it's a meaningless -- in terms of the cause of death. So

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1 you then have to put in what the cause of death was. So, 2 if you had hemoparicardium due to a ruptured 3 micardialinfarct, in other words, what we commonly know 4 as a heart attack, that would be -- the mode of death 5 would be hemoparicardium, although it's an anatomical -- 6 it's really a -- well, semi-anatomical, that, maybe on 7 the best, but -- but you'd have to put an explaining 8 line. 9 And if you had, for example, -- if you did 10 an autopsy where you found someone dead with a plastic 11 bag over their head, if you just put asphyxia, that would 12 be the mode of death. 13 The cause of death would be obstruction of 14 the airway by the plastic bag. Sometimes we shorten that 15 to plastic bag asphyxia. 16 Well, that -- so that would be the -- 17 that's the mode, and that's really the cause. And, in 18 that case, it's also the mechanism, because it gives you 19 the -- it gives you the mechanism and the mode at the 20 same time. 21 The manner of death would then be 22 determined by the coroner or the medical examiner in that 23 system. That could be accident, it could be suicide, it 24 could be -- 25 COMMISSIONER STEPHEN GOUDGE: One (1) of

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1 the five (5) categories the coroner's use. 2 DR. CHRISTOPHER MILROY: Essentially one 3 (1) of the five (5) categories that you've obviously been 4 told about. The English coronial system, just to be 5 really confusing adds about another thirteen (13), but 6 they all boil down to -- 7 COMMISSIONER STEPHEN GOUDGE: We'll stick 8 with five (5). 9 DR. CHRISTOPHER MILROY: Yes. They all 10 boil down to the five (5) essentially. 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 DR. CHRISTOPHER MILROY: Natural, 13 accident and so on, homicide, suicide, undetermined. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: And just to be clear, 17 sometimes mode and mechanism are used by some 18 interchangeably? 19 DR. CHRISTOPHER MILROY: They can be used 20 interchangeably when -- that's -- but, if -- if, for 21 example, you had in a -- perhaps a better example; if 22 you're stabbed in the chest, the mechanism of -- of the 23 death -- or the mode of the death would be blood loss. 24 You can -- or the mechanism could be -- 25 MR. MARK SANDLER: And the mechanism

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1 would be? 2 DR. CHRISTOPHER MILROY: -- the stabbing, 3 if you want it in those terms. Penetrating -- 4 penetrating wound of the heart, so it's slightly 5 different. It -- they're very similar, mode and 6 mechanism, but they don't give you cause, and that's the 7 point. 8 So you've got to explain the cause. So in 9 this case, if -- if I had a video of a child being 10 suffocated, and I wanted to use the term asphyxia in my 11 cause of death, I would have it as the first line 12 asphyxia, with the second line -- which in our 13 certificate it says 1(a), the immediate cause of death is 14 asphyxia, and then it's due to, or as a consequence of, 15 and it would be 1(b), suffocation. 16 But I'll only do that if I have that -- I 17 had -- you know, overt evidence for it. 18 MR. MARK SANDLER: Okay. Now, just going 19 back to -- to the passage that we're -- that we're 20 reading, you've agreed that -- that at this point in this 21 case, namely when Dr. Smith is testifying at the 22 preliminary inquiry, he has correctly characterized the 23 cause of death as undetermined. 24 He then says: 25 "Though I'm suspicious that whatever

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1 killed her has as a final mechanism, an 2 asphyxial type mechanism." 3 And I take it for all the reasons we've 4 earlier indicated, you'd be concerned about the use of 5 "suspicion" as language in communicating the state of the 6 pathology to the court? 7 DR. CHRISTOPHER MILROY: Well, there's 8 two (2) problems with the suspicious. One (1) is that 9 the use of the term can have slightly malevolent 10 connotations. 11 That -- but secondly, it's speculative, 12 and it's almost to -- it's almost a stepping back from 13 saying, This is an asphyxial mode, and now he says, I'm 14 suspicious it's an asphyxial mode. 15 In other words, he seems to imply, he 16 doesn't actually know what the motive or mechanism of 17 death is. 18 MR. MARK SANDLER: All right. 19 DR. CHRISTOPHER MILROY: So if he's 20 saying that, he should actually be saying, I don't have a 21 cause of death, but the following are possibilities, 22 would have been a more appropriate way of phrasing it. 23 MR. MARK SANDLER: And then, when you see 24 the question from the Crown: 25 "Could it be consistent or not

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1 consistent with some form of 2 suffocation? It's consistent with 3 that, yes." 4 That's actually the phrase; the 5 "consistent with", that sparked your commentary on the 6 use of the word "consistent" in your medical-legal 7 report, isn't it? 8 DR. CHRISTOPHER MILROY: Absolutely. 9 MR. MARK SANDLER: All right. 10 Commissioner, that completes my questions 11 on the Tiffani case, and we'll then be moving, if we may, 12 back to Professor Crane and looking at the Tyrell case. 13 Professor Crane, I'll -- I'll ask you to 14 look at volume 1 of your materials. 15 And -- and you'll see that the materials 16 on Tyrell, Commissioner, are contained both in Volume 1 17 and Volume 2 of Professor Crane's materials, but I only 18 intend to take him to documents in Volume 1. 19 If we can go to the overview report on 20 Tyrell, which is found at PFP-144019. 21 COMMISSIONER STEPHEN GOUDGE: Tab...? 22 MR. MARK SANDLER: And this is at Tab 38 23 of your materials. 24 COMMISSIONER STEPHEN GOUDGE: Thank you. 25

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1 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: And if we could move 3 to page 4 of that document, please. We see that Tyrell 4 was born in Toronto on February the 1st of 1994. Tyrell 5 was -- died on -- excuse me, died on January the 23rd, 6 1998 in Toronto. Tyrell was almost four (4) years old at 7 the time of his death. 8 Criminal proceedings were initiated 9 against his caregiver. The criminal proceedings 10 concluded on January the 22nd of 2001 when the Crown 11 withdrew a charge of second degree murder that had been 12 laid against the caregiver. 13 Dr. Crane, as I understand it, as part of 14 the Chief Coroner's review, you were assigned to be the 15 primary reviewer for this case? 16 DR. JACK CRANE: I was. 17 MR. MARK SANDLER: And if I can take you 18 to your medical-legal report, which is contained at Tab 19 35 of your binder. Mine's at Tab 36, so I want to make 20 sure that -- that everyone has it. 21 COMMISSIONER STEPHEN GOUDGE: Mine is at 22 Tab 36, too. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: All right. Tab 36 is

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1 it. And -- and if I can take you to the history and 2 circumstances of the case that are reflected at page 2 of 3 your medical- legal report, could you outline for the 4 Commissioner what that history and what those 5 circumstances were? 6 DR. JACK CRANE: Tyrell was aged three 7 (3) years, eleven (11) months and was cared for by 8 Maureen (phonetic). The child's father, his legal 9 guardian, was serving a prison sentence. He had 10 apparently been a healthy child. 11 On the evening of the 18th of January 12 1996, this boy had, according to the carer, been jumping 13 up and down on a couch and jumped backwards off the coush 14 -- couch, fell backwards and hit his head, presumably the 15 back of his head, on a marble table or on the tile the 16 floor. He was able to get up, and as he moved forward he 17 fell again and struck his forehead on the floor. 18 The child set -- initially cried, but then 19 settled and went to sleep. At 4:00 a.m. the following 20 morning, January the 19th, he was found to be 21 unresponsive by his caregiver and taken to the emergency 22 department of Humber River Regional Hospital where, on 23 admission, he was unconscious with unreactive dilated 24 pupils. 25 He was subsequently transferred to the

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1 Hospital for Sick Children and admitted to the critical 2 care unit. He was noted to have a bruise on the right 3 side of the forehead and some nonspecific retinal 4 haemorrhages in the eyes. A CT scan of the brain showed 5 diffuse cerebral edema or brain swelling, and an acute 6 subdural hemorrhage. A skeletal survey revealed no 7 evidence of boney injury. He failed to regain 8 consciousness and he pronounced dead at 15:40 hours on 9 the 23rd of January; this would have been five (5) days 10 after the alleged fall. 11 MR. MARK SANDLER: All right. And we 12 know that the post-mortem examination was performed by 13 Dr. Smith on January the 24th of 1998, and you have 14 summarised the abnormal findings in this case at page 3 15 of your report. 16 DR. JACK CRANE: That's correct. 17 MR. MARK SANDLER: And could you review 18 with the Commissioner what the abnormal findings were in 19 this case; explain what they mean, please? 20 DR. JACK CRANE: Number 1 was given as 21 CNS trauma with subdural hemorrhage, right acute; so this 22 was the accumulation of blood over the right side of the 23 brain; cerebral edema or brain swelling, the right 24 hemisphere being larger than the left; cerebellar 25 tonsillar herniation and hippocampal uncal herniation.

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1 That was what I explained to you earlier, Commissioner; 2 when the brain swells it pushes down. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. JACK CRANE: Neuronal eosinophilic 5 degeneration diffuse, and essentially what that means is 6 -- is the brain is dying off, the -- the brain cells are 7 undergoing acute degeneration. Under 2, a contusions of 8 the scalp, and under 3, bilateral optic nerve sheath 9 hemorrhage with retinol hemorrhage focal, and I just 10 explained that. 11 If you consider the -- the eyeball, at the 12 back of your eye there is a nerve that runs into your 13 brain and that's the optic nerve, and that optic nerve is 14 also covered by dura. 15 So, when you have hemorrhage into that 16 dural sheath surrounding the optic nerve we call that 17 optic nerve sheath hemorrhage. Retinal hemorrhage refers 18 to bleeding at the back of the eye. The retina is the 19 covering at the back of the eye. And there was bleeding 20 there noted. 21 MR. MARK SANDLER: All right. 22 COMMISSIONER STEPHEN GOUDGE: What does 23 "focal" mean there? 24 DR. JACK CRANE: It -- it means that 25 there were some areas of hemorrhage; it wasn't sort of

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1 diffuse hemorrhage at the back of the eye. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: What was given as the 5 cause of death? 6 DR. JACK CRANE: The cause of death was 7 given as CNS trauma. 8 MR. MARK SANDLER: Which means...? 9 DR. JACK CRANE: It means a head injury, 10 essentially. 11 MR. MARK SANDLER: All right. Now, 12 stopping there for a moment, unlike a number of the cases 13 that we've considered in the last couple of days, do you 14 take issue with the cause of death as articulated by Dr. 15 Smith? 16 DR. JACK CRANE: No, I don't. 17 MR. MARK SANDLER: And -- and to be 18 clear, by way of contrast to what we've seen in -- in the 19 last several days, what was it in this case that told you 20 that this was a case of CNS trauma? 21 DR. JACK CRANE: The autopsy findings 22 were entirely consistent with the child dying from a head 23 injury, and I have no difficulty in reconciling that this 24 was a head injury that this child had -- had received. 25 MR. MARK SANDLER: All right. And the

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1 subdural hemorrhage and the -- and the optic nerve sheath 2 and retinol hemorrhages would figure prominently in that 3 determination? 4 DR. JACK CRANE: Yes, that they were all 5 present. 6 MR. MARK SANDLER: And you've said that 7 certain features of this case were of some note. Could 8 you explain what it is that -- that you've indicated 9 here? 10 DR. JACK CRANE: Well, it is the -- the 11 dural, which is that covering over the brain was examined 12 microscopically and the hemorrhage was described as 13 showing early organization. 14 Maybe I don't need to go into the deals, 15 but that -- that would tend to indicate that the -- the 16 hemorrhage was beginning to become organized, and you 17 might expect that after a period of days. 18 So, whenever the hemorrhage is -- is 19 acute, you just find blood and new evidence of 20 organization. And if you find evidence of organization, 21 it means the clot has been there for a period of time. 22 And that sometimes helps you to age how old the clot is. 23 MR. MARK SANDLER: Now -- now, here the 24 child had been in hospital for some days before 25 pronounced dead. Would that have figured into the extent

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1 to which the organization was helpful in pinpointing time 2 of death? 3 DR. JACK CRANE: That -- that's correct, 4 yes. It -- it's helpful in pinpointing when the 5 hemorrhage occurred in relation to the time of death, 6 yes. 7 MR. MARK SANDLER: All right. And 8 continue on, if you would, in that paragraph. 9 DR. JACK CRANE: Also, sections from the 10 frontal cortex of the brain showed focal contusional 11 hemorrhage in the right frontal cortex. Now, I -- the 12 brain was subject to a neuropathological investigation, 13 and I think that was correct and appropriate for Dr. 14 Smith to do that. 15 In head injuries like this here, you don't 16 want to examine the brain in the fresh state, 17 Commissioner, you want to fix it, and, obviously, a 18 neuropathologist is the best person then to -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. JACK CRANE: -- examine the brain. 21 And what the neuropathologist found was 22 that -- among other things -- there was this focal 23 contusional hemorrhage in the right frontal cortex. 24 So what that means is if you consider the 25 front part of the brain on the right side, there was

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1 bruising in the brain in this area here and -- and that 2 was a significant finding. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. And you're 6 going descri -- you're -- we're going to talk about that 7 a little bit more in a moment. 8 So just stopping there for a moment. Dr. 9 Smith, in your expert opinion, has correctly 10 characterized the cause death here and the pathology 11 supports that conclusion. 12 What was the real issue, as you saw it, 13 for the forensic pathologist in this case? Was it cause 14 of death? 15 DR. JACK CRANE: No. What was important 16 is, of course -- and it's a common theme -- it's a 17 discretion as to how the head injury was sustained and 18 this was obviously a crucial point how this injury was 19 sustained. What was the mechanism whereby the child 20 sustained this head injury. 21 MR. MARK SANDLER: And an explanation had 22 been provided by the -- by the history for how it was 23 alleged that it had taken place, and one (1) of the tasks 24 of the forensic pathologist was to evaluate whether that 25 history could co-exist with the existing pathology, is

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1 that right? 2 DR. JACK CRANE: That's correct. I mean, 3 that is sort of one (1) of the most important functions 4 of the pathologist to try and see whether information 5 provided correlates with what the autopsy findings are. 6 MR. MARK SANDLER: Now leave aside the 7 merits for a moment of -- of the opinion that Dr. Smith 8 ultimately gave on -- on that issue. Was the post mortem 9 report that he prepared responsive to the issue in the 10 case? 11 DR. JACK CRANE: No. 12 MR. MARK SANDLER: And -- and could you 13 explain that to the Commissioner? 14 DR. JACK CRANE: Well, as I said, there 15 was no attempt to correlate the injury, for instance, to 16 the scalp with the subdural bleeding or with the surface 17 contusional damage to the brain. 18 So you've got a number of injuries. You 19 have injuries to the scalp, you have bleeding over the 20 surface of the brain, you have injury to the brain 21 itself. So, again, one (1) of the functions of the 22 pathologist would be to try and tie those all up 23 together. What was existing -- 24 COMMISSIONER STEPHEN GOUDGE: Does that 25 help you with mechanism?

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1 DR. JACK CRANE: It does, indeed, 2 Commissioner. 3 COMMISSIONER STEPHEN GOUDGE: Explain 4 that. 5 DR. JACK CRANE: Well, essentially when 6 you have a head injury like this here, there are a number 7 of mechanisms, but perhaps the two (2) most important 8 ones are did this child die as a result of an impact 9 injury to the head. 10 Was his head hit against something, or did 11 somebody hit it with something, or could it have 12 occurred, for example, in a fall. And we have the 13 history of an alleged fall; the child jumping on the 14 sofa, falling backwards. So those, I think, were the 15 issues that -- that needed to be addressed. 16 And it's by putting together the pathology 17 findings that you may be able to and I think one was able 18 to address those issues. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: All right. And -- and 22 you're going to hear, Commissioner, in a moment about how 23 Professor Crane addressed those issues on his own review 24 of the pathology. 25 If we can go to the neuropathology

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1 consultation report. Could you outline for the 2 Commissioner, as you have at page 3, what it was that the 3 neuropathologist had to say here, and then comment upon 4 the merits or lack of merits of the opinions expressed? 5 DR. JACK CRANE: Yes. The -- the 6 following comments were included in the neuropathology 7 report. External examination of the face and scalp 8 indicates, on the basis of the autopsy report, three (3) 9 separate areas of contusions with the main contusion 10 located in the right frontal region. 11 You will see I have made a comment there, 12 that it was on the basis of the autopsy report, which 13 might suggest that the neuropathologist hadn't actually 14 seen the photographs taken at the autopsy and -- and that 15 would cause me concern. I think that if I was going to 16 write a report, I would like to see if there were 17 photographs available. 18 COMMISSIONER STEPHEN GOUDGE: Why do you 19 say it suggests that the other didn't see the 20 photographs? 21 DR. JACK CRANE: Because he's saying "on 22 the basis of the autopsy report." 23 COMMISSIONER STEPHEN GOUDGE: As opposed 24 to on the basis of examining the autopsy photographs? 25 DR. JACK CRANE: It might be the report

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1 and the photographs. 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. 6 DR. JACK CRANE: The report also said the 7 subdural hemorrhage is located onto the major site of 8 impact. And the third one is an important one, 9 Commissioner, no pathologic evidence of a contrecoup 10 brain injury. 11 MR. MARK SANDLER: Now stopping there for 12 a moment. Could you explain to the Commissioner what a 13 contrecoup brain injury is? 14 DR. JACK CRANE: Yes. If I decide to hit 15 Dr. Butt on the -- on the front of the head, he may have 16 bruising on his scalp at the front. He may possibly have 17 injury to his skull underneath, and he may have injury to 18 that part of his brain. And we call that coup injury to 19 the brain. The injury is located subjacent to the point 20 of impact. 21 If on the other hand Dr. Butt was standing 22 up and I pushed him backwards, or he fell backwards, and 23 struck the back of his head on the ground, he would have 24 bruising to the back of his scalp, he may have an injury 25 to the skull at the back of his head, but I would expect

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1 to find the damage to his brain at the site directly 2 opposite to the point of contact. The damage to his 3 brain would be at the front, and we call that contrecoup 4 injury. 5 And it seems to be related to the moving 6 head, moving forward inside the skull, and the front part 7 of the brain gets damaged. 8 And contrecoup injury to the brain is 9 classically associated with backward falls and the back 10 of the head striking the ground or a hard surface. 11 COMMISSIONER STEPHEN GOUDGE: Driving the 12 brain forward. 13 DR. JACK CRANE: Correct. That's right. 14 And you consider what happen -- 15 COMMISSIONER STEPHEN GOUDGE: Why doesn't 16 a blow to the front of the head drive the brain backward? 17 DR. JACK CRANE: Well, it does probably 18 to some extent but -- and -- the interior surface of the 19 back of your brain is a lot smoother, so contrecoup 20 injury in those circumstances is unusual. 21 So even if you -- for example, if you fell 22 in the front of your head, we don't usually see 23 contrecoup injury to the same extent at the back. But 24 below -- 25 COMMISSIONER STEPHEN GOUDGE: Because

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1 your skull is smoother? 2 DR. JACK CRANE: Yes. If you look inside 3 the skull at the back it's very smooth, that's why. 4 Somewhat more irregular at the front. 5 COMMISSIONER STEPHEN GOUDGE: That's 6 interesting. 7 DR. JACK CRANE: And, in general, when 8 you hit someone again there isn't the same degree of 9 motion of the brain that you get whenever the whole head 10 is moving. Because if you consider if you're moving 11 backwards, not only is your head moving, but of course 12 your brain is moving at the same time. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: All right. So if 17 you'd continue on to the top of page 4 and simply 18 complete your summary of the -- of the findings or 19 comments that were contained in the neuropathological 20 consult? 21 DR. JACK CRANE: Yes, the comments were 22 as follows -- and I'm just quoting here: 23 "I have not seen a child of four (4) 24 years die as a result of a fall or jump 25 off a couch. The extent of the

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1 neuropathology suggests the force of 2 impact to be greater than one (1) 3 generated by a household fall." 4 MR. MARK SANDLER: And in your expert 5 opinion, is -- are the opinions and findings reflected in 6 the neuropathological consult reasonable ones? 7 DR. JACK CRANE: No, I thought that they 8 were flawed for a number of reasons. 9 Firstly, there was no comment on the 10 presence of occipital scalp bruising; that is, bruising 11 at the back of the head -- which indeed Dr. Smith 12 commented on in his report -- which would support a fall 13 backwards onto a hard surface such as the marble table or 14 the tile floor. 15 The neuropathologist also commented on the 16 site of the subdural hemorrhage, but to me that's 17 irrelevant. Whenever the hemorrhage occurs, this is 18 blood -- blood simply moves as your head moves and 19 depending what way you're laying, if you're laying to the 20 right side, more blood will accumulate on the right side 21 than the left side. 22 So I don't think the precise location of 23 the subdural hemorrhage is particularly relevant. 24 MR. MARK SANDLER: So this was referable 25 to the comment that the subdural hemorrhage is located

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1 under the major site of impact? 2 DR. JACK CRANE: That's right. 3 MR. MARK SANDLER: You're saying the 4 correlation has no significance? 5 DR. JACK CRANE: No, I don't think it 6 has. 7 COMMISSIONER STEPHEN GOUDGE: And just 8 going back to the first one (1). You say that Dr. Smith 9 referred to the presence of bruising at the back of the 10 head? 11 DR. JACK CRANE: Yes, at his autopsy he 12 commented that there was bruising on the back of the 13 scalp. 14 COMMISSIONER STEPHEN GOUDGE: I see. 15 That's not in his report as an abnormal finding, or at 16 least it wasn't one (1) of -- 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: It's number 2, 20 contusions of scalp. 21 DR. JACK CRANE: He -- he's put 22 "contusions of the scalp". 23 COMMISSIONER STEPHEN GOUDGE: He doesn't 24 say where it is, though. 25 DR. JACK CRANE: No, but in the

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1 Burrough's (phonetic) report he -- he does specify where 2 they were and the size they were. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: Yes. You were about 7 to go to item 3 of -- of the flaws that you've identified 8 in the neuropathology consult. 9 DR. JACK CRANE: Yes. As I say, Dr. 10 Smith did find bruising on the back of the scalp. The 11 neuropathologist found contusion on the right frontal 12 lobe of the brain -- of the brain, and in my opinion, 13 that would be entirely consistent with contrecoup injury, 14 yet the neuropathology report says there was no 15 pathological evidence of a contrecoup injury. 16 MR. MARK SANDLER: Okay. So you, indeed, 17 saw evidence of a contrecoup injury? 18 DR. JACK CRANE: So what I'm saying, 19 Commissioner, is we had evidence of bruising on the left 20 side of the back of the head, as reported by Dr. Smith, 21 and we have evidence of bruising to the right frontal 22 lobe of the brain. 23 So, in my opinion, that is evidence that 24 this could be due to contrecoup injury. 25 MR. MARK SANDLER: And item 4?

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1 DR. JACK CRANE: Yes. In -- in my 2 opinion the force generated by a child jumping from a 3 sofa and striking the back of his head on a hard surface 4 would be consi -- would be sufficient to cause a fatal 5 subdural hemorrhage. 6 Now what we're not talking about is a 7 child standing and just falling backwards; the history 8 was this child was jumping up and down off the sofa. So 9 there was potential movement of the child going upwards 10 and then falling backwards and striking the back of his 11 head on either the marble coffee table or the hard tile 12 floor. 13 MR. MARK SANDLER: All right, how does 14 one come to a view about whether the force of such a fall 15 would be sufficient to cause the contrecoup injury? 16 DR. JACK CRANE: Well, what one has to do 17 is, I think, rely heavily on one's experience of dealing 18 with people who have been injured in falls and I think 19 it's fair to say there is a considerable amount of debate 20 as how much force is needed. And some people take the 21 view that you require a very considerable amount of force 22 to sustain a fatal head injury. 23 But from experience and -- and from some 24 of the literature, we do know that comparatively low 25 level falls may cause significant and indeed fatal

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1 injury. 2 COMMISSIONER STEPHEN GOUDGE: Because low 3 level falls can produce a significant force on the head? 4 DR. JACK CRANE: Yes, they can. 5 DR. CHRISTOPHER MILROY: Can I just say - 6 - just to add to that, there is a growing use of bio- 7 mechanics, and bio-mechanical experimental data shows 8 that quite a lot of force can be generated using crash 9 test dummies by falls. 10 COMMISSIONER STEPHEN GOUDGE: I suspect 11 we will be hearing some of this as we go forward. 12 DR. CHRISTOPHER MILROY: What I was going 13 to say was that I don't want to say any more about this 14 because there are better people than I who can talk about 15 it in due course. 16 MR. MARK SANDLER: And you will be 17 hearing some more about it. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 MR. MARK SANDLER: That would be a 20 convenient time, Commissioner, for the afternoon break. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 We'll come back then at twenty-five (25) to 4:00. 23 24 --- Upon recessing at 3:25 p.m. 25 --- Upon resuming at 3:35 p.m.

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1 2 THE REGISTRAR: All rise. Please be 3 seated 4 COMMISSIONER STEPHEN GOUDGE: Mr. 5 Sandler...? 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Thank you, 9 Commissioner. 10 We're going to go back to the overview 11 report and examine the testimony of Dr. Smith, if we may. 12 And this is back at 144019, Tab 38 of the binder, and the 13 -- the summary of his testimony at the preliminary 14 inquiry commences at page 75. 15 And as reflected at paragraph 166, Dr. 16 Crane, Dr. Smith describes his various autopsy findings - 17 - and I simply want to take you to one (1) of them right 18 now and that is "Ai" for the scalp. 19 And can you explain this finding and how 20 it correlates to what you've told the Commissioner 21 immediately before the break? 22 DR. JACK CRANE: Yes. Dr. Smith did find 23 some contusions on the scalp. He refers to three (3). 24 One (1) in the right frontal forehead region, which he 25 measured at two (2) by three and one-half (3 1/2) inches;

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1 a smaller area of contusion right next to it; and an area 2 of contusion on the opposite side of the skull at the 3 back on the occiput on the left side. 4 The occiput is -- is the back of the head, 5 Commissioner. So it's to the left of the boney 6 prominence at the back of your head, we call that the 7 occiput. And that measured three and a half (3 1/2) by 8 two and a half (2 1/2) inches. 9 MR. MARK SANDLER: All right. And if I 10 can take you to page 79. And we see at the top of the 11 page that -- that Dr. Smith expressed the opinion that 12 the amount of force required to cause Tyrell's head 13 injury could not have occurred as a result of an 14 accidental fall but occurs in the home. And he says: 15 "The literature is very clear that this 16 type of head injury cannot occur as a 17 result of an accidental fall that 18 occurs about the home. The only 19 exception to that rule is at the dural 20 hemorrhage. Children can suffer head 21 injuries that should not be life- 22 threatening, but if it happens that a 23 blood vessel is torn, such that blood 24 accumulates in the epidural space 25 between the dura and the skull, that

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1 can result in death. But it's 2 different, it's a different clinical 3 picture and it's a much different 4 picture pathologically and so that is 5 why." 6 "Different from what happened to 7 Tyrell?" 8 "Yeah, that's right. So that's why 9 it's important for you to keep that in 10 mind because -- because someone can say 11 to you, oh, yes, you know, I know of 12 three (3) cases where children died 13 from falling down a highchair in the 14 kitchen onto a ceramic kitchen floor. 15 Yes, that's possible if there were 16 epidural hemorrhages, and I have seen 17 those kinds of cases. Apart from that, 18 though, children of Tyrell's age cannot 19 die from falling about the home. They 20 do not die when they fall out of a 21 crib. They don't die when they fall 22 off a change table. They don't die 23 when they roll off the coffee table. 24 They don't die when they fall down a 25 set of stairs. So just in terms of the

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1 amount of force, if we think of the 2 equivalent of a household accident, the 3 amount of force is greater than would 4 occur if Tyrell fell in -- in the home 5 where he was living." 6 And then he's shown the marble coffee 7 table and asked: 8 "Is your opinion that Tyrell's death 9 consistent with any sort of a fall wherein 10 he struck his head on that marble coffee 11 table? 12 A: He would have to fall from a 13 considerable height, much more than could 14 occur in a home. 15 Q: When you say "a considerable height," 16 what are you talking about? 17 A: Storeys. 18 Q: You mean building storeys? 19 A: Yeah." 20 Let's just stop there for a moment. Could 21 you comment on the reasonableness of this testimony? 22 DR. JACK CRANE: Yes. I mean, we do know 23 that children die in the home from falls, I've done 24 autopsies in children who died from falls in the home. 25 Falling down the stairs children can sustain fatal head

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1 injury. So it's just not right to say that they don't 2 die from falls. 3 And as our understanding of head injuries 4 accumulates, we do know that, in fact, comparatively low 5 level falls may result in fatal head injury. 6 COMMISSIONER STEPHEN GOUDGE: Can you 7 give some sense, Dr. Crane, to -- you say "as our 8 understanding grows"; how is our understanding today 9 compared to our understanding in 1995? 10 DR. JACK CRANE: I think there's -- 11 there's perhaps two (2) ways of looking at it. What we 12 have to do is first of all consider our own experience in 13 dealing with autopsies on young children. And I would 14 say that, you know, from my own experience and from the 15 autopsies that -- that I would have done, I have 16 certainly dealt with cases where children have died in 17 the home from falls. Those happen, you know. I have 18 seen it. 19 Now, the difficulty is that there are, 20 perhaps, differing views about the amount of force that's 21 required. And certainly, in the '90's there were 22 different views on the amount of force that were 23 required. And some people have been, perhaps, very 24 strident in their views that you require a very 25 considerable fall to do those.

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1 And I think what we have found more 2 laterally, as our understanding increases -- and Dr. 3 Milroy mentioned these bio-mechanical models -- we do 4 know that comparatively low level falls may generate 5 sufficient force; forces that we would expect to cause 6 serious and fatal head injury. 7 I think it's always very dangerous to be 8 very dogmatic about these things, because, as I say, our 9 knowledge does evolve over time and we may have to revise 10 our views on this. 11 But even in the '90s I think, certainly ,I 12 wouldn't be dogmatic in saying that you would have to 13 fall a number of storeys before you would sustain a fatal 14 head injury. Simply because from my own experience, I 15 know that's -- that's not the case. 16 COMMISSIONER STEPHEN GOUDGE: Dr. Smith 17 refers to the literature as a source of that view. Was 18 there such -- I mean, what's your sense of that? 19 DR. JACK CRANE: There certainly was some 20 literature at that time suggesting that the forces 21 required were quite sub -- considerable. And, as I say, 22 sometimes one has to be very careful about, you know, 23 being very slavish in one's adherence to the literature. 24 And my view is that whilst there is debate 25 and, you know, on this very subject, one mustn't just

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1 take all literature -- everything that one reads you 2 know, completely literature -- and say there's no other 3 possibility. It couldn't happen in -- in any other way. 4 I think -- I think that could be -- that 5 could be dangerous. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: All right. So, just 9 to try to put this in a -- in a time frame -- and, 10 Commissioner, we are going to hear more about this from 11 Professor Whitwell a little bit later in the piece. 12 There was a case that you may recall that was assigned to 13 Professor Whitwell where Justice Dunn, in the Amber 14 decision, found -- rejected the evidence of Dr. Smith and 15 favoured the evidence of a number of witnesses that 16 testified for the defence. 17 And the issue in that case was whether or 18 not the injuries could have been caused by a household 19 fall while -- while under the care of a caregiver. 20 So, that would at least tell us -- and I 21 don't want to go any further than this at this point in 22 time -- that -- that there were differing views on the 23 subject, but there was -- there were significant opinions 24 being expressed at that point of time that household 25 falls could create the kinds of -- of injuries that we're

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1 -- we're seeing here and in that case. 2 Am I right? 3 DR. JACK CRANE: That's correct. 4 MR. MARK SANDLER: And -- and that 5 controversy will be discussed, as I say, in a little bit 6 more detail a little bit later at the Inquiry. 7 Leaving aside the literature issue, one 8 (1) of the things that Dr. Smith says in the passage that 9 we've read at page 79, was that the only exception to the 10 rule, namely, that -- that a head injury cannot occur as 11 a result of an accidental fall, is the dural hemorrhage. 12 And he indicates that -- that there's a 13 distinction to be made from this case and the case in 14 which there are epiderm -- dural hemorrhages. 15 Can you help me out on -- on how you would 16 respond, if at all, to that portion of the testimony? 17 DR. JACK CRANE: Well, I suspect what 18 he's referring to is perhaps isolated subdural hemorrhage 19 and nothing else, as opposed to actual injury to the 20 brain itself. I'm presuming that's what he's -- what 21 he's indicating. 22 In this case here we did have evidence of 23 subdural hemorrhage, the was a hemorrhage over the brain. 24 But in addition to that, we -- we did have damage to the 25 brain.

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1 And of course, as I indicated earlier, my 2 view on the damage to the brain was related to the 3 contrecoup injury. And of course, the other thing I said 4 was, in this case we were not simply talking about a 5 simple fall. There was another component to it, or 6 potentially another component to it, and that was that 7 this child had been moving prior to the possible fall 8 onto the back of the head. 9 MR. MARK SANDLER: Now what about that 10 component of Dr. Smith's evidence that said that -- that 11 a child would have to fall from the equivalent of a 12 number of building storeys, and perhaps I'll just keep 13 reading at page 80 for a moment. He says, at the second 14 paragraph: 15 "A number of studies have been 16 published about lethal outcome from 17 children who die in falls from a 18 height. Now those studies have been 19 published over about twelve (12) years 20 now. They come from a number of 21 centres out of New York, Chicago, 22 Oakland, San Diego. California has a 23 very good child investigation program 24 and the studies are all quite 25 consistent. And though they answer the

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1 question in slightly different ways, 2 they are consistent and the statements 3 are this. Number 1, children do not 4 die from a fall of less then fifteen 5 (15) feet, unless it's this, you know, 6 kind of epidural hemorrhage and, you 7 know, something very unusual, which 8 we're not dealing with here. So -- and 9 obviously fifteen (15) feet is more 10 than a height greater than one (1) 11 would normally fall in a home, unless 12 you're dealing with unusual 13 architecture. And, in fact, in order 14 for there to be a reasonable likelihood 15 of death occurring from a fall, a child 16 has to fall not fifteen (15) feet but 17 at least three (3) storeys if not four 18 (4) storeys. And in fact the original 19 study in the area which drew people's 20 attention to this, which was then 21 affirmed by subsequent studies, 22 suggested that children who fall four 23 (4) storeys have a 50 percent chance of 24 survival." 25 And then he reflects two (2) paragraphs

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1 down, that that accords with the experience acquired 2 through Sick Children's cases and through the Office of 3 the Chief Coroner of Ontario. 4 What do you say about that component of 5 his testimony? 6 DR. JACK CRANE: I think two (2) things. 7 First of all, I don't accept that as the case at all. I 8 think that fatal head injury can be sustained with 9 comparatively low level falls. 10 I think the other thing that would concern 11 me about that is evidence like that would have a very 12 profound effect, I think, on -- on a jury. The 13 impression being that this injury could only have 14 occurred if a child was sort of dropped from -- from four 15 (4) storeys. 16 And again, I find comparators like that 17 disturbing, because I think they can have an improper 18 effect on -- on a jury. I think if one is going to use 19 comparatives, one has to be very careful about the 20 comparatives that -- that one use. 21 MR. MARK SANDLER: All right. I take it 22 implicit if not explicit at this point in your testimony, 23 is that you don't accept that the four (4) storey 24 premise? 25 DR. JACK CRANE: Well, I said that

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1 initially. No, I don't. I mean, I think it's basically 2 flawed; I don't think that's the case at all. And 3 certainly it's not the case from my own practice where we 4 have seen fatal injury from comparatively low level 5 falls. 6 MR. MARK SANDLER: Does pathology tell us 7 at this point in time yet why it is that some children 8 can -- can die from relatively low level falls, or falls 9 in the household, and other children can survive the four 10 (4) storey drop? 11 DR. JACK CRANE: Well -- and I think that 12 there are so many different parameters and variables in 13 this. Again, it's another reason why one has to be very 14 careful about being dogmatic in saying that it doesn't 15 happen. 16 I mean, it depends how they fall, it 17 depends on what part of their body hits the ground, it 18 depends on what they fall on. So all these factors may 19 play a part. 20 And, again, from some of the bio- 21 mechanical studies, the forces that are generated may 22 vary different -- may vary considerably just depending on 23 the way the fall was configured. 24 MR. MARK SANDLER: All right. If you'd 25 go to page 82 of the overview report, at paragraph 171,

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1 Dr. Smith testified that: 2 "It was possible that Tyrell was struck 3 on multiple occasions, such that each 4 blow, if he was only struck once, that 5 blow would not have killed. But 6 perhaps he would have struck -- he was 7 struck ten (10) times in a row and the 8 ten (10) blows caused his death." 9 What do you say about the -- the quality 10 of that evidence? 11 DR. JACK CRANE: Well, I think one has to 12 consider what evidence is there that this child was 13 struck ten (10) times, and -- and the answer is, we have 14 no evidence whatsoever. 15 We have three (3) areas of contusion on 16 the scalp and what we could say is that there is evidence 17 that there is possibly three (3) impacts. But to 18 suddenly put in ten (10), again, I think that's improper 19 to put something like that in when there is no 20 pathological evidence to support that, and -- and again, 21 it's the effect that it may have on the jury. 22 MR. MARK SANDLER: All right. And -- 23 now, we know, for example, in this and other transcripts 24 that we've read that this is evidence being given at a 25 preliminary inquiry.

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1 Does -- does that change your opinion as 2 to whether the testimony should or shouldn't be given? 3 DR. JACK CRANE: No, it -- it doesn't. I 4 -- I think this type of testimony is inappropriate, even 5 at a preliminary inquiry. 6 MR. MARK SANDLER: And if you turn to 7 page 84 -- 8 COMMISSIONER STEPHEN GOUDGE: Can I, just 9 before you leave it, Dr. Crane, again there's the 10 language of "perhaps." I mean, how does that strike you 11 as a scientist giving evidence; that kind of language? 12 DR. JACK CRANE: Well, I think -- 13 COMMISSIONER STEPHEN GOUDGE: And this 14 goes back to my "how certain are you". 15 DR. JACK CRANE: Yes. I mean I think 16 it's -- it's the point, what evidence would the 17 pathologist have in this case that there were ten (10) 18 blows struck. Well, there's -- there's none, so why -- 19 perhaps ten (10), I mean it's like saying, Well, perhaps 20 twenty (20) or perhaps thirty (30), there's just no basis 21 for it, Commissioner. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: So, if -- if I can 25 take from -- from your answer, it's -- it's not

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1 necessarily the word "perhaps" that -- that's 2 objectionable. It's -- it's when it's matched up with -- 3 with factual scenarios that are speculative. 4 DR. JACK CRANE: Yeah, I mean I -- I 5 think it's perfectly reasonable to say that there is 6 evidence of more than one (1) impact because -- and there 7 was. To say there appeared to be three (3) impacts; we 8 have evidence for that, that's -- that's perfectly 9 reasonable. 10 MR. MARK SANDLER: All right. If you 11 could go -- if you could go with me to page 84, paragraph 12 178, and Dr. Smith gives certain evidence regarding the 13 possibility to an injury to the black -- back left side 14 of Tyrrell's head, and, a) he says he: 15 "could not tell if there was an injury 16 to the back left of Tyrrell's head, 17 apart from the fact that there was a 18 contusion. 19 There was no subdural hemorrhage in 20 that area. The brain was swollen in 21 general, but the right more than the 22 left, and Tyrrell was put on life 23 support and brains can swell in 24 response to life support." 25 Your comment?

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1 DR. JACK CRANE: Well, I mean, that's 2 just nonsense. He could not tell if there was an injury 3 to the le -- to the back left of Tyrrell's head, apart 4 from the fact that there was contusion. 5 I mean, the contusion indicates that there 6 was an injury to the left side of the back of the head. 7 I mean, that's self-evident. I think I've explained the 8 reason for the subdural hemorrhage. It doesn't really 9 matter where it is, but I -- I'm not surprised that the 10 subdural was on the right side because if there was 11 contracu -- you might expect more bleeding on the right 12 side, than the left. 13 COMMISSIONER STEPHEN GOUDGE: It looks to 14 me as if Dr. Smith is anticipating finding a subdural 15 hemorrhage on the left back, if there had been an injury 16 to the left back. 17 DR. JACK CRANE: And that's a 18 possibility. 19 COMMISSIONER STEPHEN GOUDGE: But you 20 can't rule out the possibility of injury given the 21 absence of that con -- 22 DR. JACK CRANE: Yeah, let me -- what we 23 know is that if what he's saying -- he said, I can't tell 24 if there's an injury to the left -- to the back left of 25 Tyrrell's head.

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1 Well, there was an injury to the back left 2 of Tyrrell's head, but I -- I accept that there was no 3 bleeding there. 4 5 CONTINUED BY MR. MARK SANDLER: 6 MR. MARK SANDLER: All right. And if 7 you'd look with me at what Dr. Smith had to say about the 8 cause of the brain injury at -- at the bottom of 84 and 9 then the top of page 85. He stated the following with 10 respect to the cause of the brain injury, and looking at 11 item b, in particular: 12 "Most likely whatever caused the 13 frontal contusion also caused the brain 14 injury. This was based on the location 15 of the brain injury and its 16 relationship to the contusion, as well 17 as the eye injury. It was less likely 18 that a rear left injury caused the 19 brain injury because the brain injury 20 was not locally related to the rear 21 left injury." 22 DR. JACK CRANE: Well, the -- the point I 23 was making that with contrecoup injury with falls on the 24 back head, one does not usually find injury to the brain 25 at the point of impact. One finds them on the

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1 contralateral side of the brain. 2 And so, the fact that the brain injury was 3 in the right front is entirely consistent with my view 4 that the impact was on the back of the head. The child 5 fell backwards. 6 MR. MARK SANDLER: If you'd go with me to 7 Page 86, and at item B he says this: 8 "Here are the principles and once 9 again, you throw them out if you want 10 to. Blunt force injuries, shaking 11 blunt impact head injury or abdominal 12 injuries are much more likely to be 13 inflicted by a man than a woman. That 14 man is not likely the biological parent 15 of the infant or child. They are a 16 person who usually has a criminal 17 record. Violence is part of their 18 background. They have often grown up 19 in a home where violence has been used 20 to work out family problems. They tend 21 to be someone who has not finished high 22 school. They've not held a job in the 23 last six (6) months. They tend to be 24 on welfare. All of these very 25 unfortunate social factors that come

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1 into play here; probably they may 2 represent some sort of stressors or 3 triggers that lead to this." 4 And then Item C: 5 "Asphyxial deaths are more likely to be 6 caused by women." 7 In a paper that Dr. Smith presented, he 8 found that: 9 "in Ontario, three-quarters (3/4) of 10 the asphyxial deaths were perpetrated 11 by a woman, who was herself depressed, 12 and many of them attempt suicide 13 afterwards." 14 Now, in fairness to Dr. Smith, these are 15 answers that are given in response to questions at a 16 preliminary inquiry directed by Defence Counsel. And one 17 could make the argument that in some respects, if not all 18 respects, the profile that -- that he's developing here 19 for blunt force injuries excludes the accused who's 20 before the court. 21 Having recognized that, in your opinion is 22 this evidence that a pathologist is qualified to give? 23 DR. JACK CRANE: My view is that it's -- 24 it's -- while what he's saying may be correct, it's 25 inappropriate for the pathologist to give this sort of

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1 information. 2 The pathologist is there to try to explain 3 the injuries, and that's our job. Full stop. To try and 4 explain the injuries. 5 MR. MARK SANDLER: And if I could ask the 6 Registrar to go to PFP 143053, and this is the Joshua 7 Overview Report that we dealt with earlier. 8 And if you could go to page 35, we see an 9 entry here in paragraph 89 of the officer's memo book 10 notes of a meeting, that say this. 11 "Met with Dr. Smith. Reviewed cases. 12 Showed medical records. Reviewed 13 actions of mother. Questions for Mr. 14 Smith. Sergeant Blakely asked Dr. 15 Smith's opinion on whether she killed 16 the baby. States he thinks she killed 17 him. States there are some indications 18 in mothers that kill babies. Usually 19 talks about it ahead of time, about the 20 baby dying or that she'll kill it. 21 Relationship or custody battles, 22 getting back at the father, will plan 23 it. May talk about how they will do 24 it." 25 And -- and I'll ask you a similar question

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1 to what I asked you a moment ago in connection with 2 Tyrell. 3 In your view in providing advice or 4 guidance or information to the police, does this content, 5 if accurate, fall within the appropriate scope of 6 pathological opinion? 7 DR. JACK CRANE: No, it does not. 8 MR. MARK SANDLER: And is that for the 9 same reasons that you've indicated just a moment ago? 10 DR. JACK CRANE: Yes, it is. 11 COMMISSIONER STEPHEN GOUDGE: So in terms 12 of the pathologist's relationship with the police, would 13 you see it being defined by parameters any different than 14 the pathologist's relationship to the Court, or is it the 15 same? 16 DR. JACK CRANE: I think it's -- it's 17 probably the same, Commissioner. I think one of the 18 things that perhaps concern me is that it -- it's not the 19 pathologist's role to try to apportion the blame on an 20 individual or perhaps to think what was in that person's 21 mind whenever they might have done something. 22 I mean, I -- I think there are -- with 23 what our role is. either in helping the police or, 24 indeed, in helping the court. 25 COMMISSIONER STEPHEN GOUDGE: Does it

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1 ever happen, Dr. Crane, that in the informal context in 2 which the pathologist/police interface takes place, there 3 is a relaxed vigilance by the pathologist about 4 performing his or her professional role? 5 DR. JACK CRANE: Well, I -- I'm sure -- 6 we're -- we're probably all guilty of that from time to 7 time. As I say, what I think we -- we should never focus 8 on is -- is particular individuals, if you like. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 DR. JACK CRANE: I -- I don't think 11 that's anything to do with our role. 12 DR. CHRISTOPHER MILROY: I was just going 13 to say, I mean, people -- pathologists do research which 14 is wider than the individual pathology case. So, for 15 example, when I did my MD thesis it was about people who 16 kill and commit suicide, so there is a literature that 17 uses data that is beyond the individual case and would -- 18 in this case, to be fair to Dr. Smith, include knowledge 19 that the typical person who kills has the following 20 characteristics. 21 And for -- you may tell the police that, 22 in terms of their -- and this is just a basis for 23 investigation, but you don't go on to say this, 24 therefore, proves that the person killed the victim. I 25 think that for intelligence purposes, you may have

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1 knowledge of literature that the police don't. 2 COMMISSIONER STEPHEN GOUDGE: I guess 3 what I was getting at, Dr. Milroy, is the three (3) of 4 you have all been very careful to describe your views 5 about the outer boundaries of appropriate pathology 6 evidence in a court. 7 And I was trying to see if there was any 8 comparison or contrast when one turns to the interface 9 between the pathologist and the police or whether the 10 same kind of strictures that you have advocated or 11 suggested where the courtroom context should apply? I 12 mean, let me just ask of it precisely -- 13 DR. CHRISTOPHER MILROY: Yeah. 14 COMMISSIONER STEPHEN GOUDGE: -- in terms 15 of your answer, Dr. Milroy. I take it, had that -- if 16 you were giving evidence in court, you would be a little 17 reluctant, perhaps, to talk about your research 18 generically? 19 DR. CHRISTOPHER MILROY: Yes. 20 COMMISSIONER STEPHEN GOUDGE: You might 21 not be reluctant telling the police that? 22 DR. CHRISTOPHER MILROY: That's -- that - 23 - the police have come to me about -- 24 COMMISSIONER STEPHEN GOUDGE: Why the 25 difference?

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1 DR. CHRISTOPHER MILROY: -- murder/suic - 2 - why the difference? Because I think you've got to be 3 very careful on the individual case. You may not have 4 all the facts, but you can give them a general help in 5 their investigation. 6 But I would say, Look, these are the 7 characteristics, but if you want to find out whether 8 someone is psychiatrically disordered, say that, you 9 know, often the people who commit this offence -- for 10 example, a lot of the people who genuinely commit 11 infanticide, the women have a psychic -- well, they must, 12 by definition, have a psychiatric disorder. 13 Well, you may say to the police, This 14 person may have a psychiatric disorder, but if you want 15 to find out whether they've got a psychiatric disorder, 16 go and ask a psychiatrist. So, I mean, that's the sort 17 of difference, I think, that where -- so I said, I'm not 18 going to stand up in court and say that there's proof 19 that this person had a psychiatric disorder. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. CHRISTOPHER MILROY: I'm quite aware 22 that -- that they may well have, but the Court can hear 23 from better evidence than me. But in terms going and 24 conducting their investigation, you may be able to help 25 them.

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1 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 DR. CHRISTOPHER MILROY: That's the 3 difference, I think. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: I suspect, Professor, 8 Crane, that -- that -- from the answer that you gave, 9 that you might be more restrained than giving that kind 10 of -- 11 MR. NEILS ORTVED: Well, don't be giving-- 12 MR. MARK SANDLER: That's fine. I won't 13 ask the question. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: I'm going to ask you 17 one (1) other area, Professor Crane, and that is this -- 18 that -- let's assume that -- that you had done the 19 original work on this matter, and the police came to 20 speak to you about it after the completion of your post- 21 mortem report and any ancillary investigations. 22 And the police said to you something to 23 the effect of, Look, we have to decide what to do here in 24 terms of the criminal process. We've been given an 25 explanation from the caregiver as to the events that she

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1 says took place. 2 Can you give us some sense as to what you 3 think happened here, and the likelihood that the 4 explanation given is or is not credible? 5 And I take it, police officers ask you 6 those very kinds of questions? 7 DR. JACK CRANE: Yes, they do. I think 8 one (1) of my -- where dealing with this is usually at 9 the -- the time of the -- the autopsy. One very rarely 10 has the -- the full picture; all -- all the information. 11 So, at that point, you usually will, 12 perhaps, confine oneself to essentially giving the police 13 an indication of what the cause of death was. The 14 child's died from a head injury; we have found evidence 15 of bruising on the scalp, there might be evidence of 16 contracoo injury. 17 Now I -- that might be at that point the 18 information or all the information that -- that I might 19 be prepared to give them at that point in time. And 20 usually before I -- I would complete my report, what I 21 want from the police then is information that they can 22 give me as to what was the history, the background, the 23 explanation that's been put forward. 24 Because I think I need to know that. Now 25 I -- if we take this case for instance; if the police

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1 came back to me and say, Well, the caregiver says the 2 child was lying on the settee, and rolled off onto the 3 floor. 4 Do I think that that is a credible 5 explanation for the head injuries that were found? And 6 my answer would be, No, I do not think that explains 7 three (3) areas of bruising on the scalp and the 8 possibility of contracoo injury. 9 But if they'd come back to me and said, 10 Well the story we have is this. The child was bouncing 11 on the sofa, fell backwards, it struck its head, possibly 12 either on a table or on a tile floor. It got up, it then 13 fell forwards and struck its head again. 14 I would say, Well that scenario is a 15 satisfactory explanation for the pathology findings. 16 MR. MARK SANDLER: All right. Thank you 17 very much. 18 Now, Professor Crane, we see from the 19 overview report for this case, that a number -- in 20 fairness to Dr. Smith -- a number of the Hospital for 21 Sick Children clinicians, including members of the SCAN 22 team and including Dr. Levin (phonetic) the 23 opthomologist, expressed opinions in -- in a variety of 24 ways that were generally supportive of Dr. Smith's 25 assessment of the case.

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1 And you've seen that as well? And -- and 2 you've described the -- the controversy that -- that has 3 existed over the topic of accidental falls and -- and the 4 likelihood or the possibility that they could cause fatal 5 injuries. 6 Let's assume, as I'm sure you would, for 7 the purpose of the question, that -- that your expert 8 opinion is the correct one. And the opinions that are 9 being expressed to the contrary are incorrect or unduly 10 dogmatic, as you've -- as you've said. 11 How does one address that issue 12 systemically? In other words, as the state of medical 13 knowledge changes, how does one address fixed views that 14 are being expressed that represent, in your mind, either 15 outdated or inaccurate science? 16 DR. JACK CRANE: Well I think -- one (1) 17 of the things I think you find, as you get older, become 18 less dogmatic. I think when we're younger we can be a 19 bit cock sure of ourselves, and perhaps experiences 20 teaches us that, you know, there's no room for dogmatism 21 in -- in forensic pathology. 22 I certainly think that one has to try and 23 keep up to date with literature. I think one has to try 24 an keep abreast of new developments. As I say, I don't 25 think there's any place for very fixed views. One always

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1 has to -- to keep an open mind about things; to consider 2 other possibilities. 3 And I think it's always right to consider 4 the views and opinions of others. I think if one is 5 perhaps unsure, then that's always an opportunity to go 6 and seek another opinion; to get another colleagues view 7 on the matter. 8 So, I think these are the things that we - 9 - we should be doing all the time. Maybe refining our 10 views, taking account of what others think. 11 MR. MARK SANDLER: All right. Dr. Butt 12 or Dr. Milroy, on the last question of the day, do you 13 want to make any additional commentary? 14 DR. JOHN BUTT: Well, I would like to 15 make a comment about this, because I have an opportunity 16 to have more time and review a lot of autopsy reports. 17 And the first thing I would comment is that many people 18 who are in forensic pathology in Canada are pressed for 19 time, and there are not a -- there are not a lot of 20 forensic pathologists around and the workload tends to be 21 quite heavy. 22 In terms of keeping up with the 23 literature, that could be a problem, and that's mainly 24 the point that I want to make. What Professor Crane has 25 said is true, you know, and in essence you're too soon

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1 smart and too late wise, and the opportunity to have time 2 to reflect on these matters is obviously a function of 3 what you're doing most of the time. 4 And when it comes down to doing autopsies 5 and administering a variety of things and looking at 6 literature, I can tell you that the priorities are 7 sometimes not what you'd like to make them, and I think 8 that's essentially my point. 9 The Internet is there; it's a very quick 10 access, there are lots of library resources, but whether 11 one has the opportunity to do it or not is another issue. 12 But there are certainly reviews and abstracts and updates 13 available, but it's not always easy to get -- to get the 14 time to do that. And I think that's a reasonable thing 15 to say. 16 Things are changing very quickly, as we've 17 heard in the most recent piece of evidence, in terms of 18 head injuries in children. Ideas are changing, but how - 19 - how much time forensic pathologists have to deal with 20 the changes in terms of the literature and going to 21 presentations is entirely another matter. 22 MR. MARK SANDLER: And -- and what -- I 23 take it that when -- implicit in what you've said is that 24 one should build into the work environment of a forensic 25 pathologist some time and ability to read and -- and I --

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1 to read and involve -- be involved in continuing 2 education. 3 And I take another component of that would 4 be the ability to be involved in original research, as 5 well. 6 DR. JOHN BUTT: Well, it's a fact, but 7 you know, all these offices are funded by government; 8 there are no private forensic pathology facilities in 9 Canada, except most of the forensic pathologists in 10 British Columbia work privately. 11 And how much attention those people pay to 12 their work; I don't know, particularly. But I do know 13 that in government offices, as I think everybody knows, 14 that the issue of money is a very big problem. And that 15 means how many pathologists are employed and what their 16 workload is, and it all flows from there. 17 As we said this morning, the issue is 18 resources, and it's a very big issue. 19 MR. MARK SANDLER: All right. Professor 20 Milroy...? 21 DR. CHRISTOPHER MILROY: I'll just make 22 two (2) points that haven't been made already, I guess. 23 One (1) is that the -- the doubling time for literature 24 in medicine, in other words, how long -- how much 25 literature is produced com -- compared with the past, is

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1 now, I think, about five (5) years. 2 Every five (5) years the number of papers 3 in existence doubles. 4 COMMISSIONER STEPHEN GOUDGE: Would that 5 be true of pathology, too? 6 DR. CHRISTOPHER MILROY: Ye -- yes, to 7 certain extent, there are more forensic journals being 8 produced. There's a lot of material to wade through; a 9 lot of it rubbish. 10 And you have to pull -- pull out the -- 11 the good stuff from the bad stuff. I mean that's just 12 the reality of a lot of publishing. So, it is a problem 13 and I echo everything that John says about resources to 14 read and to separate out the good from the bad. 15 The second point was just about dogmatism, 16 and I think it -- it reflects some of what we've done 17 today. Interestingly enough, the use of the term 18 "undetermined" or "un-ascertained" as the cause of death 19 is more likely to be given by an experienced pathologist, 20 than it is by an inexperienced pathologist. And the 21 older you get, either the wiser you get or the more 22 indecisive. 23 I think it's probably -- and I think it's 24 probably that we become wiser, I hope. 25 MR. MARK SANDLER: All right.

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1 Commissioner, we are seven (7) minutes ahead of schedule. 2 I don't propose to start with a new case at this point. 3 COMMISSIONER STEPHEN GOUDGE: Well, why 4 don't we break, then, Mr. Sandler, and we'll come back 5 tomorrow at -- at 9:30. 6 MR. MARK SANDLER: Thank you. 7 COMMISSIONER STEPHEN GOUDGE: Thank you. 8 9 --- Upon adjourning at 4:24 p.m. 10 11 12 13 14 Certified correct, 15 16 17 18 ___________________ 19 Rolanda Lokey, Ms. 20 21 22 23 24 25