1

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 21st 2007 25

2

1 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 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 ) Association in Defence of 11 Vanora Simpson (np) ) the Wrongly Convicted 12 13 Jackie Esmonde (np) ) Aboriginal Legal Services 14 Kimberly Murray ) of Toronto and Nishnawbe 15 Sheila Cuthbertson (np) ) 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 ) For Marco Trotta 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

5

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 Cross-Examination by Ms. Jane Langford 143 10 11 Certificate of transcript 252 12 13 14 15 16 17 18 19 20 21 22 23 24 25

6

1 --- Upon commencing at 9:30 a.m. 2 3 COMMISSIONER STEPHEN GOUDGE: Morning. 4 MR. MARK SANDLER: Good morning, 5 Commissioner. 6 COMMISSIONER STEPHEN GOUDGE: Mr. 7 Sandler...? 8 9 CHRISTOPHER MARK MILROY, Resumed 10 JACK CRANE, Resumed 11 JOHN BUTT, Resumed 12 13 CONTINUED EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Thank you, 15 Commissioner, and good morning, gentlemen. 16 DR. CHRISTOPHER MILROY: Morning. 17 DR. JOHN BUTT: Good morning. 18 MR. MARK SANDLER: Commissioner, we'll be 19 doing three (3) more cases this morning. I expect in a 20 more abbreviated fashion then the earlier cases. If I 21 can ask Dr. Butt to turn to his volume Tab 6, PFP143979. 22 This is the overview report on the 23 Katharina matter. 24 COMMISSIONER STEPHEN GOUDGE: What Tab, 25 Mr. Sandler?

7

1 MR. MARK SANDLER: Tab 6. 2 COMMISSIONER STEPHEN GOUDGE: Thank you. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: And at page 3 of the 6 overview report, it is reflected that Katharina was born 7 in Toronto on March the 20th of 1992. She was found dead 8 in her mother's apartment on September 15th 1995, in 9 Toronto at the age of three and a half (3 1/2). 10 Criminal proceedings were initiated 11 against her mother on September 15th, 1995. On November 12 the 3rd of 1997, the mother was found not criminally 13 responsible for Katharina's death. 14 She received an absolute discharge from 15 the Ontario Review Board in December of 2001. The 16 Catholic Children's Aid Society was involved with this 17 family from October 1994 until September 1995. 18 As I understand it, Dr. Butt, as part of 19 the Chief Coroner's review, you were assigned to be the 20 primary reviewer for this case? 21 DR. JOHN BUTT: That's correct. 22 MR. MARK SANDLER: Pursuant to the 23 Commission's request, you prepared a medicolegal report 24 that expanded upon the findings that were prepared for 25 the Chief Coroner, and that is found at Tab 4 of your

8

1 binder, PFP135508. 2 And at page 3 of your medicolegal report, 3 you set out a brief background relevant to what follows. 4 Could you outline for the Commissioner briefly what you 5 understood this case to be about? 6 DR. JOHN BUTT: Yes. In this case there 7 was reference material that alluded to the domestic 8 problems in the family and there was a -- a report of an 9 attempted suicide. Police arrived to execute a court 10 order and discovered the body of a child dead on a bed. 11 The autopsy was per -- performed on the 12 child and the cause of death was given by Dr. Charles 13 Smith on -- around the time of the autopsy which was the 14 middle of September the 16th of 1995. And he indicated 15 at that time to the police that the cause of death was as 16 -- was asphyxia in a pattern of neck or chest 17 compression. 18 MR. MARK SANDLER: Now what I'm going to 19 ask you to do is, with the benefit of your medical-legal 20 report, provide the Commissioner with an overview of what 21 you regarded to be your significant findings and expert 22 opinion concerning this case. 23 DR. JOHN BUTT: Well, I think the most 24 important issue here is the -- are the findings related 25 to haemorrhages and vague marks on the right side of the

9

1 neck; that's the principle finding. There were some 2 other areas of concern. I'll read my opinion at this 3 point and then come back to that. 4 There was a conclusion about asphyxia. It 5 was my opinion that there was little information 6 pathologically upon which to make this conclusion. There 7 was additionally a parenthetical comment about filicide, 8 ergo a homicide. And again, the issues that had been 9 discussed before now in these hearings related to the 10 manner of death being juxtaposed with the medical cause 11 of death -- 12 MR. MARK SANDLER: And just stopping 13 there -- 14 DR. JOHN BUTT: -- issue arise -- 15 MR. MARK SANDLER: And just stopping 16 there for a moment. We find what you have to say about 17 that point at page 5 of -- 18 DR. JOHN BUTT: That's correct. 19 MR. MARK SANDLER: -- of your -- 20 DR. JOHN BUTT: Of the opinion. 21 MR. MARK SANDLER: -- medical-legal 22 report "opinion" section. 23 DR. JOHN BUTT: The -- a further issue 24 arises that there was nothing that tied together the 25 conclusion of asphyxia. We visited upon this before.

10

1 The police document, interestingly enough, 2 was the document that had recorded a more specific cause 3 of death: asphyxia in a pattern of neck or chest 4 compression. 5 Where this information came from directly, 6 I'm not exactly certain because that isn't the way that 7 it was recorded on the report by Dr. Smith. 8 MR. MARK SANDLER: It was recorded in the 9 report of Dr. Smith, as I understand it, as asphyxia and 10 then filicide in parenthesis. 11 DR. JOHN BUTT: Yes, that's correct. 12 MR. MARK SANDLER: All right. 13 DR. JOHN BUTT: The situation in the 14 evidence of Dr. Smith in the court was, I think, of most 15 concern to me. 16 Again, before that time we had some 17 interpretation of petechial haemorrhages, which we have 18 dealt with before now, and the comments, I think, have 19 been exhaustive in that area, so I won't review them. 20 I believe that there was a 21 misunderstanding again by Dr. Smith about the value of 22 these haemorrhages and I think that in the absence of 23 other findings, using these haemorrhages as evidence of 24 sine qua non of asphyxia is -- is unwise. And I've 25 commented upon -- I commented upon that.

11

1 The marks at the autopsy on the neck were 2 not of -- in my opinion, were not sufficient to make any 3 judgment about pressure on the neck. 4 At the time following the autopsy, Dr. 5 Smith requested of Dr. Jay that there be a -- an 6 examination of the brain, and that was to find its way 7 into the autopsy report of Dr. Smith without attribution 8 to Dr. Jay and it was also to find its way through Dr. 9 Smith into his interpretation at the preliminary hearing. 10 This brings me in conclusion to my 11 concerns about the issues in the case and, in summary, 12 the error that the medical cause of death was poorly 13 formulated, developed on weak pathological evidence that 14 is particularly for the diagnosis of asphyxia. 15 At the preliminary hearing in connection 16 with the brain, a mechanism was described by Dr. Smith of 17 a slow asphyxial death, and in my opinion this was 18 misleading because, in the first place, there was no 19 indication by the neuropathologist of swelling of the 20 brain. 21 Statistically the weight of the child's 22 brain, in accordance with tables that I reviewed, it was 23 not statistically significant, the increase in the weight 24 of the child's brain. 25 MR. MARK SANDLER: Just stopping there

12

1 for a moment. 2 DR. JOHN BUTT: Yes. 3 MR. MARK SANDLER: And I don't mean to 4 interrupt, but your comment in this regard, for those who 5 are following, are contained at page 8 of your -- 6 DR. JOHN BUTT: Yes. 7 MR. MARK SANDLER: -- report. 8 DR. JOHN BUTT: That's correct, 8 and 9. 9 MR. MARK SANDLER: Go ahead, please. 10 DR. JOHN BUTT: The -- well, I think I've 11 commented on the marks on the right side of the neck. 12 The balance between what was in the autopsy report and 13 what was said in the Court was, in my opinion, distorted. 14 15 The comments on the autopsy report said, 16 one (1) thing, what was said in the courtroom was quite 17 another, and it -- it was, I suppose, an exaggeration. I 18 think that if -- that's not too strong a term of anything 19 that was said by the neuropathologist who, in fact, never 20 mentioned the word "cerebral swelling". 21 Before now of -- we have -- or I have 22 reviewed the issue of the juxtaposition of these issues 23 and cause of death with the manner of death and I've said 24 it again this morning. 25 There was also a concern to me of the way

13

1 the information was delivered to the police and to the 2 coroner; those are matters of administration, but they -- 3 there was enough informality to that, that there is no 4 clear understanding, in my mind, of how the police 5 reported one (1) thing and it is another thing recorded in 6 both the coroner's report and in the pathologist's, Dr. 7 Smith's, report. 8 MR. MARK SANDLER: All right, so stopping 9 there for a moment. If one looks at the top of page 6 of 10 your medicolegal report, you reflect that the police in a 11 document, which is a synopsis dated September 17, 1996, 12 recorded asphyxia in a pattern of neck or chest 13 compression, and the same document in the penultimate 14 paragraph said: "Further investigations have 15 revealed that on Thursday, 16 September 14th, 1995, sometime 17 in the evening the mother 18 smothered her child over a 19 period of three (3) hours." 20 Now, in fairness, you don't know whether or 21 not those investigations were confined to the pathology or 22 extended to other aspects of the case that were available 23 to the police? 24 DR. JOHN BUTT: I do not. 25 MR. MARK SANDLER: All right. If the

14

1 police had approached you on this case and said that, does 2 the pathologist -- does the pathology tell us how this 3 child died and, in particular, does the pathology, leaving 4 aside whatever circumstantial evidence would otherwise 5 exist, tell us whether the child was smothered? What 6 advice would you give to the police in that regard? 7 DR. JOHN BUTT: I would tell the police 8 that the pathology in the case is very weak in terms of a 9 commitment to any real medical cause of death, but by the 10 same token, if their information suggested that a 11 mechanism of smothering was involved. 12 Then that in forensic pathology, this is a 13 diagnosis that is sometimes, in fact, I think often 14 elusive in terms of the pathological features of 15 smothering which very frequently do not include any 16 physical findings at all, including the issue of petechial 17 haemorrhages. So for example, smothering in a pillow or 18 plastic bag smothering, for example, there's often no 19 stigmata at autopsy. 20 MR. MARK SANDLER: Now if you'd look at 21 page 7 of your report, at the top. You almos -- you also 22 comment upon testimony that Dr. Smith gave concerning 23 rigour mortis? 24 DR. JOHN BUTT: Yes. 25 MR. MARK SANDLER: And -- and one (1)

15

1 should say at once, that it -- did it appear that -- that 2 the presence or absence of rigour mortis, or how rigour 3 mortis operated on this body figured prominently in -- in 4 how the case should be resolved? 5 DR. JOHN BUTT: Well the issue of rigour 6 mortis probably is related only to the time of death. In 7 this particular matter, as in any forensic pathology 8 investigation, in general the time of death is elusive on 9 the basis of the pathological findings, in general -- 10 MR. MARK SANDLER: All right. 11 DR. JOHN BUTT: -- which means more often 12 than not. Very frequently the police have information 13 that they may share with the forensic pathologist to do 14 with witnesses, which is sometimes helpful to them, but it 15 doesn't -- you know, it may factor in to, in a very 16 general way, to an assessment. 17 But there's nothing from the post-mortem 18 assessment that can be used to clearly fix the time of 19 death, even in a -- a signi -- significantly broad span, I 20 can't think that a pathologist would want to narrow the 21 time of death down to more then to say, plus or minus two 22 (2) or three (3) hours, even when the body was very warm. 23 And I feel at this point that I may be 24 extending myself further then I should be, in making those 25 comments. But it is illustrative of the fact that there

16

1 is concern about any science related to the time of death, 2 and regrettably, the more one (1) listens to television 3 programs, the more forensic pathologists have to deal with 4 the -- with the concerns of the court that he may not be 5 as accurate as people that are on television. 6 And that is really a problem which of 7 course is alluded to in the so-called CSI effect, but it's 8 been in existence for forensic pathologists for a long, 9 long time before CSI, over the issue of time of death, and 10 I think I've said enough. 11 But in terms of this particular case, I 12 mean, what was recorded here by Dr. Smith in his testimony 13 on cross-examination -- this was not in the autopsy report 14 -- was a -- a couple of statements about how rigour mortis 15 develops, and I quote: 16 "It begins to set in the small muscles 17 around the eyes." 18 That means it begins to be featured in 19 small muscles around the eyes and the mouth, and then 20 slowly continues downward which I assume means, exactly as 21 it says, inferiorly as we say in the lexicon of medicine 22 "To affect the whole body". But this is incorrect. That 23 is not the way rigour mortis is established. 24 It is established in the smaller muscles 25 first and then the larger muscles latterly. And it has

17

1 nothing to do with the condition of the body top to 2 bottom, so to speak. So this is -- if I may, this is of 3 concern because it's very basic information that one (1) 4 would expect a medical student to have a good grasp on. 5 MR. MARK SANDLER: Okay. And does that 6 complete an overview of the issues raised for you in 7 connection with the Katharina case? 8 DR. JOHN BUTT: Yes, sir, it does. 9 MR. MARK SANDLER: Thank you very much. 10 Commissioner, we're now going to be turning to the last 11 case that I'll be asking Dr. Milroy about, and that is 12 Tamara. And this material is found in volume II of Dr. 13 Milroy's documents. 14 And if I can ask you, Dr. Milroy, to turn 15 to Tab 36 of your binder, 143345. And at paragraph at -- 16 sorry, at page 4 of the overview report we see that Tamara 17 was born in Scarborough, Ontario on January the 18th of 18 1998. She died on February the 8th, 1999 in Scarborough, 19 she was one (1) year old at the time of her death. 20 Her father was charged with second degree 21 murder arising from the death. The criminal proceedings 22 concluded on August 30, 2001, when he entered a plea of 23 guilt to manslaughter in the death of Tamara. He was 24 sentenced to fifteen (15) months of time served plus three 25 and a half (3 1/2) years imprisonment.

18

1 On February the 11th of 1999, three (3) 2 days after Tamara died, the local Children's Aid Society 3 initiated proceedings in respect of Tamara's two (2) 4 sisters. 5 As I understand it, as part of the Chief 6 Coroner's review, Dr. Milroy, you were assigned to be the 7 primary reviewer in this case. 8 DR. CHRISTOPHER MILROY: That's correct. 9 MR. MARK SANDLER: And we see from the 10 overview report at page 12, paragraph 32, that the warrant 11 for post-mortem examination provided a short history of 12 the family situation. And included in that history in the 13 second paragraph quoted was that -- that the doctor 14 reported the following behaviour: 15 "The father came into the resuscitation 16 room after the child was pronounced, 17 pulled back the sheet covering the body, 18 lifted the [and it says "LEF"] of the 19 infant and checked the genital area. 20 Infant had no obvious trauma but for a 21 one (1) centimetre denuded area of skin 22 on the inner aspect of the left buttock 23 and question-marked evidence of a small 24 amount of blood from the anus." 25 I'm going to ask you about the significance

19

1 of that in a few moments. 2 We also see from paragraph 33 that Dr. 3 Smith conducted the post-mortem examination in this case 4 on February 9th of 1999. 5 Now if I can take you to your medical-legal 6 report that was prepared in this matter and it is found at 7 Tab 34 of the binder. PFP13543 -- sorry, 457. It's 8 unnerving that our Registrar is so good, the document is 9 up even when I say the wrong number and haven't finished 10 outlining -- 11 COMMISSIONER STEPHEN GOUDGE: He's batting 12 a thousand (1,000) a day, Mr. Sandler. 13 MR. MARK SANDLER: He certainly is. 14 COMMISSIONER STEPHEN GOUDGE: He's ahead 15 of you. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: Professor Milroy, could 19 you briefly outline as reflected at page 3 of the 20 document, what you understood the background history and 21 circumstances to be in this case? 22 DR. CHRISTOPHER MILROY: Yes. I was -- I 23 ascertained that Tamara died on the 8th of February, 1999. 24 She had been born on the 16th of January, 1998, so was 25 nearly thirteen (13) months old at the time of her death.

20

1 Coroner's warrant describes Tamara as a third child. 2 Father did not live with the family but visited. 3 Tamara had suffered a fractured femur in 4 January, 1999. On the day of Tamara's death, her mother 5 had left her in the care of her father; that's the father 6 of Tamara. On returning she found her child lifeless. 7 She had tried to call 911 but had been prevented from 8 doing so. 9 In the Homicide and Sudden Death Report, 10 the child is reported as having been resuscitated by the 11 male with the emergency services taking over and death 12 being reported at 14:57 hours on that day. 13 And then the coroner's report is saying 14 there was bleeding in the anal area and a laceration to 15 the buttock. 16 MR. MARK SANDLER: All right. Now if I 17 can take you to page 5 of the medicolegal report. We see 18 under investigations, you have reflected in the 2nd line: 19 "No swabs of the genitalia are recorded 20 as having been taken, although the 21 coroner had stated he had seen bleeding 22 in the anal area. Although the coroner 23 may have been mistaken, the possibility 24 of sexual assault could not be excluded, 25 and the swabs are simple to take."

21

1 And in fairness, I'm -- I'm going to ask 2 you to harken back for a moment to the overview report at 3 PFP143345, again, at Tab 36. And at page 13 we see in the 4 overview report - and this actually comes from the case 5 submission document - that Dr. Smith referred the case to 6 the Centre of Forensic Sciences for testing of blood 7 samples, and the anal swab, and a case history was 8 provided on the referral form. 9 So in -- in fairness to Dr. Smith, it 10 appears from the case submission form that's included in 11 the overview report, that swabs -- an anal swab was indeed 12 taken and referred to the Centre of Forensic Sciences. 13 And -- and I should say, and I won't take 14 you there, but subsequent analysis did not reveal the 15 presence of any semen? 16 DR. CHRISTOPHER MILROY: Yes. 17 MR. MARK SANDLER: So I just ask you to 18 comment on what you've put in page 5 of your report having 19 regard to that additional information which I'm providing 20 you from the overview report? 21 DR. CHRISTOPHER MILROY: Well, I think 22 that there's two (2) points. One (1) is that obviously 23 the swabs were taken, but on the facts of the papers in 24 Dr. Smith's report, one (1) would not know whether they 25 had or had not been taken. It's a point referred to back

22

1 to the exhibits taken that post-mortem should be listed in 2 the post-mortem examination report. 3 MR. MARK SANDLER: All right. So -- so 4 it's -- it's simply a -- a documentary issue as opposed to 5 a failure to do that -- 6 DR. CHRISTOPHER MILROY: Yes. 7 MR. MARK SANDLER: -- which should have 8 been done at the autopsy? 9 DR. CHRISTOPHER MILROY: Yes. It's a 10 documentary issue that also has -- issues over indicating 11 what was and what was not done, continuity of evidence and 12 so on. 13 MR. MARK SANDLER: All right. Now 14 you've read the report of post-mortem examination prepared 15 by Dr. Smith. What was it that he opined as the cause of 16 death in this case? 17 DR. CHRISTOPHER MILROY: It listed the 18 cause -- the anatomical findings as asphyxia and -- based 19 on petechial haemorrhages of thoracic viscera. And then 20 there was also the other thing in the anatomical findings, 21 haemorrhage left sterno mastoid muscle acute. 22 MR. MARK SANDLER: Now just stopping there 23 for a moment, we're back to page 5 of your medicolegal 24 report 135457. And I apologize that I'm taking you back 25 and forth between the two (2) documents, but it seems to

23

1 be the easiest way to -- to address this -- this case. 2 So we see the reference to the anatomical 3 findings under item 5 -- item 5 opinion, is that right? 4 DR. CHRISTOPHER MILROY: Yes. 5 MR. MARK SANDLER: And the Commissioner is 6 -- is now well versed in the meaning of petechial 7 haemorrhages of thoracic viscera. 8 Could you explain the haemorrhage to the 9 left sterno mastoid muscle acute? 10 DR. CHRISTOPHER MILROY: Yes. Well there 11 was an area of bleeding in the sterno mastoid muscle which 12 is the large muscle in the neck, there's one (1) on either 13 side that actually runs from the sternum up to the mastoid 14 process, which is the boney prominence behind the ear. 15 So, that's why it's called sterno mastoid, 16 and there was a small area of bleeding on -- on the left 17 side. 18 MR. MARK SANDLER: All right. And what 19 was described in the report of post-mortem examination as 20 the actual cause of death? 21 DR. CHRISTOPHER MILROY: I -- I think it 22 was asphyxia, but I just -- 23 MR. MARK SANDLER: I'll take you to -- 24 DR. CHRISTOPHER MILROY: If you could take 25 me to the --

24

1 MR. MARK SANDLER: I will. I'll take you 2 to -- back to the overview report at paragraph 41, at 3 14334 -- 345, page 16, paragraph 41. Dr. Smith completed 4 the report of post mortem examination. He determined that 5 the cause of death was a -- 6 DR. CHRISTOPHER MILROY: Yeah. 7 MR. MARK SANDLER: -- asphyxia associated 8 with multiple traumatic injuries. 9 DR. CHRISTOPHER MILROY: That's correct. 10 MR. MARK SANDLER: And knowing that this 11 will undoubtedly bring you back to your own medical-legal 12 report at 135457 -- this is largely being done, Professor 13 Milroy, as a test for our Registrar and not for you. 14 At -- at page 5 and following, could you 15 advise the Commissioner what your expert opinion is as to 16 the cause of death as expressed by Dr. Smith? 17 DR. CHRISTOPHER MILROY: Well, in my 18 opinion, this is a case where the cause of death has to be 19 recorded as undetermined or unascertained because whilst 20 there are questionably multiple injuries on this case, 21 they are -- the actual -- those are all -- there's -- 22 there's the fracture of the femur and there were other 23 injuries. 24 The asphyxia is based, again, on these 25 nonspecific findings in the chest organs of the petechiae.

25

1 So whilst inevitably one has, if you like, concerns about 2 this case, this case being a -- very suspicious on the 3 circumstances and the fact that there are skeletal 4 fractures of varying age, which are -- have the 5 appearances of being non-accidental. 6 The actual cause of death cannot be 7 determined on this autopsy. 8 MR. MARK SANDLER: And did you have 9 occasion to review the testimony that Dr. Smith gave at 10 the preliminary inquiry? 11 DR. CHRISTOPHER MILROY: I did. 12 MR. MARK SANDLER: And I -- I don't intend 13 to take you through it passage by passage in the way that 14 has been done previously. 15 Could you provide the Commissioner with 16 your comments as to any concerns or opinions that you have 17 as to the testimony given in this case? 18 DR. CHRISTOPHER MILROY: Well, again, the 19 major problem was the use of the term asphyxia without 20 further clarification. And there's also the use of the 21 term consistent with. The -- so that is the -- like a 22 number of the other cases we've heard that is the 23 principal concern that I had with the testimony. 24 I mean, to be fair -- to be fair to Dr. 25 Smith, there were -- there was, for example, -- there was

26

1 a single petechia in the eye and he said that he would not 2 go -- he -- he didn't place great emphasis on that, but -- 3 MR. MARK SANDLER: And that was an 4 appropriate cautionary note -- 5 DR. CHRISTOPHER MILROY: And that was an 6 appropriate cautionary note. But there still remains the 7 fundamental use of the term asphyxia based on the 8 intrathoracic petechiae. 9 MR. MARK SANDLER: And if I can take you 10 to page 6 of your medical-legal report. You've reflected 11 about a quarter (1/4) of the way down that Dr. Smith and 12 his testimony distinguish between two (2) types of 13 pulmonary haemorrhage in his testimony based on age, 14 though not in his report. 15 It is not clear on what basis this 16 distinction is made. Did you examine the histology in 17 this matter? 18 DR. CHRISTOPHER MILROY: Yes. Perhaps I 19 should say that having re-looked at his report, I think I 20 can -- I now can interpret it that he did -- he talks 21 about something being remote. And so in fact, that could 22 be interpreted. 23 It wasn't clear to me and it certainly 24 isn't laid out in any conclusions that there was actually 25 two (2) ages of the pulmonary haemorrhage, so I think I

27

1 should say that. Although, I have to say it wasn't the 2 clearest way of doing it. 3 That the -- there is a -- there is an issue 4 as to whether the pulmonary haemorrhage that was old was 5 associated with the rib fractures, which is a possibility, 6 although it's -- it's not common and there are other 7 reasons including it -- basically, when you have iron in 8 the lungs that indicates previous bleeding. 9 The previous bleeding can be due to a 10 number of causes. You can see it, for example, in -- in 11 heart disease. People have done studies showing that 12 there are a percentage of infant deaths that have a 13 background of -- of this. And so the exact reason why its 14 present is not clear; that's why I said it's a 15 controversial area. 16 One (1) other reason is that previous 17 episodes of -- of obstruction of the airway, a partial 18 smothering can cause it, so it -- it can have, if you 19 like, potentially sinister connotations, but of itself it 20 doesn't allow us to say how it came about. 21 22 And then the fresh pulmonary haemorrhage, 23 again, it's a common finding in deaths of -- of young 24 children and infants and one (1) explanation is that the 25 child could have been smothered or had its airway

28

1 obstructed, but it -- it of itself is a not very specific 2 finding. 3 MR. MARK SANDLER: All right. Now, if I 4 can take you back to the overview report at PFP143345 at 5 page 81. The overview report reflects that Dr. Ferris was 6 retained to provide an opinion in connection with the 7 cause of death in this matter and in his discussion of 8 cause of death and conclusions he stated at paragraph 200: 9 "It is my opinion that death was a 10 direct consequence of aspiration 11 pneumonia and that the episode of 12 choking which lead to the fatal 13 aspiration pneumonia occurred several 14 hours before death. There's no 15 foundation for the conclusion that death 16 was as a result of asphyxia due to 17 multiple traumatic injuries. Dr. Smith 18 appears to have concluded that there is 19 evidence of asphyxia smothering and even 20 neck compression. In my opinion there 21 is no definitive evidence to support any 22 of these conclusions; there's no 23 evidence of any significant traumatic 24 injury to the body of Tamara sustained 25 immediately before her death."

29

1 And then he -- he goes on to reflect under 2 conclusions, and I'll come back to with reference to Dr. 3 Dowling in a moment -- or back to Dr. Dowling in a moment, 4 he reflects: 5 "In my opinion, Tamara sustained a 6 number of bone fractures, including 7 fractures of the left seventh rib, the 8 right and left femurs, the right hand. 9 She also had evidence of an impact 10 injury to the mouth. In my opinion this 11 combination of injuries and multiplicity 12 of fractures could be interpreted as 13 evidence of child abuse." 14 What do you say about the opinion -- I'm 15 sorry, and I should continue on, in fairness, at page 82: 16 "However, in my opinion it's not 17 possible to accurately date any of these 18 fractures and it's not possible to 19 completely exclude that some of these 20 fractures may be the result of accident. 21 In my opinion the death of Tamara was 22 due to aspiration pneumonia directly due 23 to an episode of choking on vomit 24 several hours before her death." 25 And your comment on Dr. Ferris'

30

1 conclusions? 2 DR. CHRISTOPHER MILROY: Well, I agree, 3 and I have said in my medicolegal report there is evidence 4 of aspiration; in fact, I hadn't had Dr. Ferris' report at 5 the time of the -- preparing mine, so when I saw his 6 report I went back, and I have in this last week, reviewed 7 the histology of the slides. 8 In my opinion he's wrong to state that this 9 was of several hours duration; I -- I don't believe that. 10 I think it's a much more acute aspiration; there's -- 11 there's very little inflammatory response. 12 There is an injury to the mouth; it's not 13 significant in the sense that it -- it's an injury that 14 itself will cause death, but it is significant in that 15 characteristically when you see frenular injuries, that 16 frenulum is the piece of tissue that connects the lip to 17 the -- the gum; there's one (1) at the top and one (1) at 18 the bottom, that is a very characteristic injury of -- of 19 child abuse, although it can occur sometimes if there is 20 vigorous resuscitation by -- especially by people who 21 aren't trained in it. 22 I think that when -- when you have this 23 constellation of fractures it's difficult to conceive of 24 the innocent explanations for them, so in my opinion this 25 -- this child shows evidence of child abuse.

31

1 The exact mechanism of death is not 2 determined, as I -- by the au -- autopsy findings, 3 although, if you like, there are non-innocent explain -- 4 or nonnatural explanations for it, including something 5 being pushed into the mouth and effectively the child 6 choking -- or smothering -- smothering possibly with an 7 element of choking, there may have been some vomit in -- 8 in that process which has gone into the stomach and caused 9 aspiration. 10 MR. MARK SANDLER: Now, Dr. Ferris has 11 also made -- has also opined that cause of death was 12 aspiration pneumonia, and I emphasize the word 13 "pneumonia." What -- 14 DR. CHRISTOPHER MILROY: Yeah, I don't 15 accept that. 16 MR. MARK SANDLER: Okay. 17 DR. CHRISTOPHER MILROY: I -- I think that 18 there isn't sufficient evidence to say that this child had 19 developed pneumonia. 20 MR. MARK SANDLER: Now if I can take you 21 back to page 73 and ask you about two (2) other opinions 22 that were obtained in this case. We know from the 23 overview report at page 73 that Dr. Graeme Dowling, the 24 Chief Medical Examiner for Alberta at the time, was asked 25 to review this matter, including Dr. Smith's preliminary

32

1 hearing testimony. And you'll see at paragraph 178 that 2 he concluded: 3 "That based upon my review of these 4 materials, I believe that Dr. Smith has 5 provided the court with a very balanced 6 and reasonable presentation of his 7 autopsy findings and conclusions 8 regarding the death of Tamara. Where 9 there is uncertainty in his opinion, he 10 makes it clear that there is uncertainty 11 where ground can be given to other 12 possible explanations for his findings 13 as brought by defence counsel in cross- 14 examination, this ground is graciously 15 given. 16 Furthermore, whenever Dr. Smith realizes 17 the questions he's about to answer may 18 take him beyond the precise area of his 19 expertise, he openly advises the court 20 of this and indicates what other type of 21 expert may be capable of providing a 22 more precise answer to the question." 23 Dr. Dowling goes on to -- to make some 24 specific comments in relation to Dr. Smith. Those have 25 been reproduced at paragraph 179 and -- and 180. But it's

33

1 fair to say that Dr. Dowling's overall view of Dr. Smith's 2 testimony is -- is a very favourable one (1) -- 3 DR. CHRISTOPHER MILROY: Yes. 4 MR. MARK SANDLER: -- is that right? 5 DR. CHRISTOPHER MILROY: Yes. 6 MR. MARK SANDLER: And -- and secondly, 7 Dr. Dowling provided a second opinion, particularly 8 focussed upon the pathology, including the ultimate 9 question of cause of death. And we see at page 87 of the 10 overview report that in addressing the ultimate question 11 of cause of death, Dr. Dowling stated: 12 "Like Dr. Smith, I'm very concerned that 13 Tamara died as a result of some form of 14 mechanical or obstructive asphyxia. The 15 difficulty with deaths due to 16 smothering, neck compression or other 17 forms of asphyxia in infants is that 18 there's rarely any definitive evidence 19 of these injuries. Pathologists are 20 faced with making a diagnosis by the 21 exclusion of other possibilities as 22 opposed to being able to identify direct 23 evidence of the cause of death. 24 The best that I am able to do as a 25 pathologist is express my concern that I

34

1 do not see a clear-cut underlying cause 2 of death, and in particular that I see 3 no clear-cut evidence of any natural 4 disease process to account for death; 5 therefore an asphyxial mechanism of 6 death, which includes underlying causes 7 of death like smothering, neck 8 compression and chest compression 9 becomes a distinct possibility." 10 And then skipping down: 11 "I'm afraid that I also have to muddy 12 the waters even more by suggesting one 13 (1) possibility in terms of an 14 underlying cause of death that no one 15 (1) seems to have considered, that being 16 positional asphyxia. Positional 17 asphyxia occurs when an individual is 18 rendered unconscious in a position that 19 compromises the airway and/or the flow 20 of blood to and from the brain. 21 Tamara's mother indicates she found 22 Tamara lying on her back on a pillow in 23 her playpen with her head tilted 24 backwards. We, of course, do not know 25 exactly how far backwards her head was

35

1 tilted and, therefore, we do not know if 2 her airway or blood flow was 3 compromised. I can only put this 4 forward as a further possibility. The 5 essential question would then be: How 6 did she come to be unconscious in this 7 particular position? 8 As I've mentioned, the best a 9 pathologist can do in a case like this 10 is indicate a concern and a high degree 11 of suspicion that this death was not due 12 to any natural disease and that an 13 asphyxial cause and mechanism of death 14 is either a distinct possibility or the 15 only reasonable possibility. The 16 concern and suspicion is heightened by 17 the presence of several injuries that 18 appeared to be of varying ages, many of 19 which are highly suspicious for having 20 been caused by non-accidental trauma. 21 The bruise on Tamara's left cheek is the 22 only visible physical injury of a highly 23 suspicious nature for non-accidental 24 causation which appears to have occurred 25 in close proximity to her death given

36

1 the evidence of Tamara's mother. The 2 question for the Crown is whether or not 3 they have sufficient evidence to support 4 Dr. Smith's and my concern that Tamara's 5 death resulted from a criminal act of an 6 asphyxial nature." 7 Your comments, both on -- on both aspects 8 of the report that -- that he provided? Are the reports 9 plural that he provided? 10 DR. CHRISTOPHER MILROY: Well, I'm -- Im 11 not very convinced by the positional asphyxia suggestion, 12 firstly, because there's no real evidence of it and, 13 secondly, there's no evidence for any impact to render 14 Tamara unconscious. But the general tone saying, well, 15 this is a course -- this is a case that has concerns, it's 16 an obviously injured child, there is no obvious cause of 17 death, I agree with. 18 And that in -- deliberately inflicted 19 airway obstruction must be a strong possibility in this 20 case. 21 MR. MARK SANDLER: Okay. 22 COMMISSIONER STEPHEN GOUDGE: Can I just 23 ask you, Dr. Milroy, would you say that there was any 24 pathological support for deliberate airway obstruction? 25 DR. CHRISTOPHER MILROY: Well, there is

37

1 the frenulum injury, which would certainly support 2 something being pushed into the mouth. And one is always 3 worried when we see that. There has also been aspiration, 4 which again, could support that. That can happen during 5 airway obstruction. It's -- it's not -- it's not the only 6 potential cause. 7 There was some scarring seen in the brain. 8 Once you have scarring in the brain there is a risk of -- 9 of a child -- well, any person having a fit. 10 And during a fit, one could aspirate and 11 die in that process. So there -- there are, unlikely, but 12 possible alternative explanations. That -- if the fit 13 wouldn't account for the frenular (phonetic) tear, you 14 would then have to account for the other findings by 15 resuscitation, and you're beginning to have a series of 16 coincidences, if I can put it in those terms, that then 17 raise -- make your -- that less likely. 18 COMMISSIONER STEPHEN GOUDGE: So what 19 level of certainty would you be prepared to ascribe in a 20 report that you did about deliberate obstruction of the 21 airway? 22 DR. CHRISTOPHER MILROY: I would -- I'm -- 23 I would say that this -- if -- if you like, on the scale 24 of weak, moderate, strong, very strong, I would say 25 there's strong evidence to -- that this was --

38

1 COMMISSIONER STEPHEN GOUDGE: You would 2 put it at the strong? 3 DR. CHRISTOPHER MILROY: I think I would 4 put it at the -- yes, I think I would, in this case, with 5 all the -- with all the other findings present. 6 COMMISSIONER STEPHEN GOUDGE: Okay. What 7 about the approach that we talked about a little before 8 that Dr. Dowling seems to be advancing hereof diagnosis by 9 exclusion? Is this a case where you could advance a 10 diagnosis of cause of death by exclusion? 11 DR. CHRISTOPHER MILROY: Well, I think 12 that you can to a certain extent because you point out 13 that in this age group sudden, natural death is very rare. 14 And especially -- 15 COMMISSIONER STEPHEN GOUDGE: A child of 16 this age? 17 DR. CHRISTOPHER MILROY: A child of this 18 age with no -- no positive findings. You've -- you've got 19 to -- you've got a child that's injured, that's been 20 injured on a number of occasions pointing to child abuse. 21 And you have a -- this frenular injury, which again is 22 very suspicious. 23 And when you begin to put all of these 24 things, I think it's -- it provides -- it would provide 25 strong support, but it wouldn't -- you -- you can't state

39

1 -- I still don't believe you can state the cause of death. 2 You have to put the alternative, and I think that of the 3 alternatives that the strongest is for the upper airway 4 obstruction. 5 But I would have to say also, I cannot 6 exclude entirely a seizure because of the scarring in the 7 brain, nor can I, for example -- there are some rare -- 8 cardiac disorders that one couldn't exclude 'cause they 9 can occur with a normal heart. 10 Now, then into that process, the tribunal, 11 in fact, may have other evidence that they can adduce, as 12 well, that's nonpathological. 13 COMMISSIONER STEPHEN GOUDGE: Right. And 14 when you began in answer to Mr. Sandler's question, I made 15 a note that you would have said the cause is 16 unascertained? 17 DR. CHRISTOPHER MILROY: I would have 18 given the cause of death as unascertained, but I would 19 have then in my conclusions listed the alternat -- 20 possibilities, placing more weight on upper airway 21 obstruction then on other causes because of the -- the 22 nature of the case. 23 COMMISSIONER STEPHEN GOUDGE: So a strong 24 evidence of upper airway obstruction, -- 25 DR. CHRISTOPHER MILROY: I think there

40

1 would be some support -- 2 COMMISSIONER STEPHEN GOUDGE: -- although 3 cause of death unascertained? 4 DR. CHRISTOPHER MILROY: Or strong 5 possibility. 6 COMMISSIONER STEPHEN GOUDGE: Strong 7 possibility -- 8 DR. CHRISTOPHER MILROY: Strong 9 possibility -- and then a much weaker possibility for the 10 other alternatives. 11 COMMISSIONER STEPHEN GOUDGE: Okay, thank 12 you. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: All right. Thank you. 16 And those are all of the questions I have of you, 17 Professor Milroy, in connection with the Tamara case. 18 If we can now return to Professor Crane. 19 And Professor Crane, I'm going to ask you some questions, 20 if I may, about the Paolo case, and the materials in this 21 regard are found at Volume II of your binder, Professor 22 Crane. 23 And Mr. Registrar, I'll ask that you put up 24 on the screen the Supreme Court of Canada decision; it is 25 in PDF format. And if you could turn to page 5. Thank

41

1 you. 2 Commissioner, you'll recall that in this 3 particular case an overview report was not prepared having 4 regard to the state of this matter in the Supreme Court of 5 Canada. 6 We have placed reliance upon the 7 transcripts, which Professor Crane has available to him, 8 together with the factum that were presented in the 9 Supreme Court of Canada on the fresh evidence application, 10 together with the -- some other materials that -- that 11 I'll be taking him to, and -- and we'll do it in a way 12 that -- that I want to spend as little time as possible, 13 Commissioner, addressing any of the facts in the case, 14 other than the strict pathology. 15 Simply put, Professor Crane, this case 16 involved an eight and a half (8 1/2) month old child. The 17 parents were charged and first convicted of culpable 18 homicide and other offences concerning the death of -- of 19 that child. 20 What transpired thereafter is that their 21 appeals initially to the Ontario Court of Appeal were un - 22 - were unsuccessful. The matter was then appealed further 23 to the Supreme Court of Canada where fresh evidence was 24 presented to the Court, which included the evidence of Dr. 25 Avis, former Chief Medical Examiner of Newfoundland and

42

1 Labrador, Dr. Pollanen, and your brief report that was 2 prepared for the purposes of the Chief Coroner's review 3 was also filed as part of the materials that were before 4 the Supreme Court of Canada on the fresh evidence 5 application. 6 At the conclusion of the proceedings before 7 the Supreme Court of Canada, the Crown having conceded 8 that the fresh evidence should be admitted and that the 9 pathology evidence that had been introduced by Dr. Charles 10 Smith and -- and by Dr. David Chan was flawed, 11 characterised as unreliable; the convictions were set 12 aside and new trials were ordered on all counts. 13 And you're aware of -- of that brief 14 background of -- of this case? 15 DR. JACK CRANE: Yes, I am. 16 MR. MARK SANDLER: And -- and if I can 17 take you, if I may, and -- and I should add, as well, that 18 the documentation that I just made reference to makes 19 clear that Dr. David Chan performed the original autopsy 20 in the matter, designated the cause of death initially as 21 SIDS. 22 There was an exhumation, Dr. Charles Smith 23 then performed a further examination resulting in a report 24 and ultimate testimony both by him and by Dr. Chan. 25 Dr. Chan adopting the position -- and I'm

43

1 oversimplifying, but adopting the position that had been 2 taken by Dr. Smith in large measure in his testimony. And 3 against that background, if I can take you to some of the 4 portions of the transcript that have been reproduced in 5 the factum filed in the Supreme Court of Canada. 6 And if you would go with me to Tab 25 of 7 your binder, volume 2, this is document PFP131787. And if 8 I can take you to page 4, and this is a summary, including 9 a transcript -- transcript excerpts of the testimony of 10 Dr. Smith in connection with the Paolo case. 11 And the factum reflects, at paragraph 4 -- 12 I'm sorry, paragraph 5 under "Recent Skull Fracture", and 13 this is referable, we'll see, from the context to a skull 14 fracture in the right parietal bone, is that right? 15 DR. JACK CRANE: Left, actually. 16 MR. MARK SANDLER: Oh left. I'm sorry. 17 The left parietal bone. And, again, remind us the left 18 parietal bone is? 19 DR. JACK CRANE: Above the (INDICATING). 20 MR. MARK SANDLER: Okay, and as reflected 21 here, Dr. Smith found that Paolo had what he described as 22 a recent skull fracture; it could be seen on x-ray 23 examination and was visible to the naked eye at the re- 24 autopsy. It had been missed by Dr. Chan at the first 25 autopsy and he testified as follows at the top of page 5:

44

1 "And so the central issue concerning 2 bony issues really was the skull 3 fracture. Where it was located and 4 whether there was any information that 5 would help us understand when it may 6 have occurred. So that was really the 7 main reason for doing the exhumation and 8 a skull fracture was found on Paolo's 9 head. It was a fracture that was ten 10 and a half (10 1/2) centimetres in 11 length, which would be about four (4) 12 inches long and it was about his left 13 ear. It ran largely in a horizontal 14 plane and it began at one (1) of the 15 suture lines or one (1) of the points of 16 fusion of the bones that make up the 17 skull and then ran backwards or 18 posteriorly to another suture line at 19 the back." 20 And the factum reflects that at first Dr. 21 Smith testified it's not possible to know exactly how old 22 the skull fracture is, then suggested that the fracture 23 may have been a lethal injury. And then his response to 24 questions from the Crown, this exchange took place: 25 "Q: Dr. Babyn was not able to assist us

45

1 beyond that in terms of timing that last 2 fracture. So if we don't have anything 3 from the x-rays about timing, if we have 4 to keep that aside, what are you able to 5 tell us then? 6 A: Then if you assume that the 7 fracture was associated with the 8 contusions, I think it's reasonable to 9 say that it occurred within a couple of 10 days of death. And here I'm at the 11 limits of the photographs and such but a 12 couple of days would be a reasonable 13 limit. But you can push me farther 14 based on the fact that I can't see the 15 colour change well. 16 Q: All right. And I assume you're 17 speaking of an outside limit? 18 A: Yeah. 19 Q: What would be the closest? 20 A: The inner limit? 21 Q: Yes. 22 A: Oh, ten (10) minutes, fifteen (15) 23 minutes, half (1/2) an hour, something 24 like that. Those would be other 25 possibilities.

46

1 Q: And that would give sufficient time 2 for this brain swelling to occur? 3 A: That's right. 4 Q: All right. So we're looking at 5 anywhere from ten (10) minutes to a 6 couple of days? 7 A: Yeah, but if it's a couple of days 8 then it's not the lethal event. 9 Q: If it's a couple of days then there 10 would have to be -- 11 A: Then something else has happened. 12 Q: Something such as asphyxiation that 13 has occurred? 14 A: Something has happened after that, 15 yeah." 16 Could you comment upon the reasonableness 17 of the opinion expressed in connection with the skull 18 fracture? 19 DR. JACK CRANE: Well, I think the issue 20 here was how recent the -- the skull fracture was and it 21 was clearly Dr. Smith's opinion that this was a recent or 22 fairly recent fracture, either within minutes or -- or 23 days. And -- and quite clearly, if the fracture occurred 24 with a close temporal relationship to when the child died, 25 the inference might be that it was in some way related to

47

1 the -- the death. And that's not an unreasonable 2 assumption to take. 3 The flow in -- in Dr. Smith's evidence was 4 that in fact this was not a recent fracture, this was a 5 healing fracture and had not occurred as recently as -- as 6 Dr. Smith was suggesting. 7 MR. MARK SANDLER: All right. And -- 8 COMMISSIONER STEPHEN GOUDGE: You say a 9 healing fracture, Dr. Crane, can you put a time frame on 10 that? 11 DR. JACK CRANE: We didn't take sections 12 from the skull, which you can do and look at under the 13 microscope, but looking at the skull the margins were 14 smooth and rounded. So we're probably talking about 15 something in the region of weeks, Commissioner, certainly 16 not days. 17 MR. MARK SANDLER: All right. Could the 18 skull fracture, as raised by Dr. Smith, have contributed 19 to the death here? 20 DR. JACK CRANE: Well, I think that the 21 fact that it had occurred sometime before the death 22 occurred, I think we can, therefore, exclude it as being 23 related to the death of this child. 24 MR. MARK SANDLER: All right. 25 COMMISSIONER STEPHEN GOUDGE: Sufficiently

48

1 before the death that you can exclude it? 2 DR. JACK CRANE: Yes. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. If I can 6 then turn to a -- to a second feature of Dr. Smith's 7 testimony that had been given at the trial. And at page 6 8 of this factum, there was some evidence that Dr. Smith 9 suggested a -- a likely linkage between the bruising on 10 Paolo's left forehead, which was observed by Dr. Chan at 11 the first autopsy, and the skull fracture that we've just 12 talked about. 13 And Dr. Smith said, quote: 14 "That he was suspicious that the two (2) 15 occurred at a single point in time, 16 caused by a single event, but they may 17 not have been." 18 Your comment about the linkage and 19 significance, if any? 20 DR. JACK CRANE: Well, if the -- the 21 bruising on the forehead was recent, as it appeared to be, 22 then you can't link the bruising on the forehead with the 23 skull fracture. 24 Furthermore, it's not quite clear where the 25 -- the bruising is. It's referred to as the "forehead,"

49

1 although I think, from memory, it was more described as 2 being in the temple region of the head, which might not be 3 directly subjacent to where the fracture was. But I think 4 -- because of the difference in timing, I think that 5 they're not related. 6 MR. MARK SANDLER: All right. The third 7 aspect of Dr. Smith's testimony that I want to ask you 8 about arises out of the weight of Paolo's brain. And we 9 see, commencing at paragraph 7, at page 6 of the document, 10 that -- that: 11 "Dr. Chan weighed Paolo's brain at the 12 first autopsy, did not consider its 13 weight to be out of the ordinary. After 14 Dr. Smith presented the opinion that the 15 brain was grossly overweight, Dr. Chan 16 testified differently at the trial. 17 However, [and it's alleged this in the 18 factum, and I'll ask you about it], he 19 had made no observations at the autopsy 20 that were consistent with an excessive 21 brain weight. He saw no damage or 22 swelling or brain edema to the brain." 23 And then Dr. Smith said: 24 "That if the weight of Paolo's brain as 25 recorded by Dr. Chan is real, which it

50

1 sounds like it is, then that's clearly 2 out of the range of norm; that's much 3 heavier then it should be." 4 He doubted that there could have been a 200 5 gram error in the weight of the brain. That would have 6 been a major observer error, and testified that: 7 "Paolo's brain was as much as 30 to 35 8 percent heavier then normal for an 9 infant of his age." 10 And Dr. Smith concluded: 11 "That the brain was severely swollen, 12 indicative of an impact to the head 13 consistent with the recent skull 14 fracture." 15 Now we know what you have to say about the 16 -- the skull fracture. First of all, did you have 17 occasion to review Dr. Chan's original autopsy report -- 18 DR. JACK CRANE: Yes, I did. 19 MR. MARK SANDLER: -- together with the 20 testimony that's described here? 21 DR. JACK CRANE: Yes, I did. 22 MR. MARK SANDLER: All right. And -- and 23 does the factum accurately raise the issues of -- of 24 pathology in the case? 25 DR. JACK CRANE: Well, certainly, Dr.

51

1 Chan, in his original report, did not mention that the 2 brain appeared swollen, nor did he mention that there was 3 and evidence of injury or damage to the brain. So -- he 4 was the one who looked at it. 5 In saying that, what he didn't do, and what 6 -- what was a major flaw in the report, was he didn't keep 7 the brain for proper examination, and there was no 8 material of the brain left to examine. 9 But just relying on the weight of the brain 10 as evidence of brain swelling, as I think I've indicated 11 before, is not -- is not accurate. There are a lot of 12 other factors that need to be taken into consideration. 13 Big heads, you have a big brain. There's 14 great variation in the weight of the brain. If you have a 15 terminal event where breathing stops, the brain undergoes 16 a degree of swelling. 17 MR. MARK SANDLER: All right. 18 COMMISSIONER STEPHEN GOUDGE: Was Dr. 19 Smith right that the recorded weight was 30 to 35 percent 20 heavier then normal? 21 DR. JACK CRANE: There was some debate 22 about that in relation to the figures, I know, in some of 23 the other reports that were commented on. I -- I wouldn't 24 like to comment too much on that, because I think too much 25 can be made of, you know, sticking rigidly to -- to

52

1 figures. It -- it might have been, to a slight extent, 2 heavier than what you might expect for a child of this 3 age, but I don't think much can be read into it, 4 Commissioner. 5 COMMISSIONER STEPHEN GOUDGE: Is there a 6 range of normal for...? 7 DR. JACK CRANE: Yes, there -- there are 8 tables that you can use. And, as I say, they do have to 9 be used with a degree of -- of caution. So just simply 10 relying on weight alone is not an accurate way of 11 determining whether the brain is swollen or not. 12 COMMISSIONER STEPHEN GOUDGE: Okay. So, I 13 take it, your view would be -- let us take as a given that 14 it is 30/35 percent above the normal range, that does not 15 indicate swelling? 16 DR. JACK CRANE: Not necessarily, no. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: All right. Just as a 21 matter of interest, just arising out of the Commissioner's 22 questions, if you could look at page 19 here. We -- we 23 see that there's some discussion in the written materials 24 of -- of what Dr. Avis had to say in his report on the 25 issue of the weight of Paolo's brain.

53

1 And -- and one has to re -- recall that 2 this is -- the issue here which was that Dr. Chan 3 indicated that the brain weighed 940 grams at the time of 4 first autopsy. And Dr. Avis said this, at paragraph 35: 5 "The evidence that there was edema to 6 the brain is based on the finding that 7 the brain weight at autopsy exceeded the 8 normal range for infants of similar 9 ages. These normal ranges were 10 established between forty (40) and sixty 11 (60) years ago and do not reflect modern 12 knowledge. Even Dr. Smith, himself, on 13 page 2,300 of his testimony in the 14 context of the thymus gland, alluded to 15 the fact that these ranges were 16 historical and were not accurate today. 17 One must also consider that these normal 18 ranges are a statistical measure, not a 19 physiological parameter. Normal is 20 defined as taking the average of a 21 number of brain weights then adding and 22 subtracting two (2) standard deviations. 23 The resulting graph is what is referred 24 to as the 'bell curve'." 25 Then Dr. Avis described a recent peer-

54

1 reviewed study that found that the normal brain weight for 2 an eight (8) month old infant was between 624 and 1,080 3 grams, a range within which the weight of 940 grams 4 recorded for Paolo's brain comfortably fell. So he said 5 the conclusion, therefore: 6 "That the brain weight of Paolo reflects 7 cerebral edema is not valid. The 8 recorded weight was 940 grams, within 9 the normal range for his age. Indeed, 10 this would substantiate Dr. Chan's 11 observation that there was no visible 12 evidence of brain swelling at autopsy." 13 And he notes at the following page, page 14 20, quoting from Dr. Smith in his evidence. 15 "Were there no increase in brain weight, 16 then we could discard the possibility 17 that he died as a result of blunt force 18 head injury." 19 Your comments on what Dr. Avis has had to 20 say? 21 DR. JACK CRANE: Yes, I mean, I wouldn't - 22 - as I say, I -- I don't believe one should slavishly look 23 at tables and say that it's outside the range. I think 24 you have to consider the case as a whole. If you have a 25 large head, you're going to have a large -- you're going

55

1 to have a heavy brain. And if you have a small child and 2 a very heavy brain, that might be more significant. 3 But, my view is that increased brain 4 weight; it may represent brain swelling, it may not. And 5 even if it does represent brain swelling, that doesn't 6 necessarily indicate brain injury. 7 MR. MARK SANDLER: All right. If you go 8 back to page 7 of -- of this document. And under item 9 little 4, there is reference to abnormality of the dura at 10 the exhumation. And -- and it was noted by Dr. Smith that 11 Paolo's dura was adherent to the skull to a degree greater 12 than normal. And he said, quote: 13 "That's a change that can be seen 14 consequent to an injury in the repair 15 process or the laying down of scar 16 tissues, so I'm suspicious that that may 17 indicate a sight of previous injury." 18 Closed quote. 19 Any comment upon that? 20 DR. JACK CRANE: Well, I think what we're 21 talking about is Dr. Smith conducting an examination on a 22 body that a) had already been subject to an initial post- 23 mortem examination, and a body that had been interred. 24 And one has to be very careful about interpreting 25 findings.

56

1 It is my view that there was nothing in the 2 dura to indicate there was any evidence of old injury. 3 And I think what one would be looking for in a case liked 4 this would be evidence of bleeding, particularly subdural 5 haemorrhage, that might be either old or recent. And, 6 again, Dr. Chan found new evidence of -- of haemorrhage; 7 found new evidence of either old or recent haemorrhage 8 beneath the dura. 9 COMMISSIONER STEPHEN GOUDGE: What's the 10 concept, Dr. Crane, of adherent to the skull to a degree 11 greater than normal, but is -- 12 DR. JACK CRANE: And I -- 13 COMMISSIONER STEPHEN GOUDGE: -- that a 14 concept is part of a pathology investigation? 15 DR. JACK CRANE: I mean, the fact that 16 it's adherent is -- is neither here nor there. Sometimes 17 bits of dura are more difficult to get off the skull than 18 -- than other bits. And it's -- it's of no significance, 19 unless, as I say, he's trying to suggest that there was 20 some inflamation there; there was some haemorrhage there 21 that was causing it to be more adherent to it. 22 COMMISSIONER STEPHEN GOUDGE: So, adherent 23 with an accompanying sign of haemorrhage would indicate, 24 perhaps, something about injury. 25 DR. JACK CRANE: Well, it's the

57

1 haemorrhage that would be important -- 2 COMMISSIONER STEPHEN GOUDGE: Yes. 3 DR. JACK CRANE: -- rather than the 4 adherence. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Okay. If you'd go to 9 the next item at page 7, "signs of neck compression", and 10 Dr. Smith noted petechial haemorrhages in the strap 11 muscles of Paolo's neck, acknowledging that haemorrhages 12 of this sort could be post-mortem artifacts, but were more 13 likely caused by ante-mortem neck compression. 14 And he said: 15 "If I were to put numbers on it in terms 16 of a greater than or less than, I would 17 say it's reasonable to state that 18 haemorrhage within the muscle belly is 19 more likely to be real than artifact. 20 So it's 51 percent versus 49 percent, or 21 more than 50 percent versus less than 50 22 percent, but I don't know how far I want 23 to go because there are just so many 24 variables. The proper way to do the 25 dissection is, before touching the neck,

58

1 to also remove the brain and drain all 2 the blood out of the area. If that had 3 been done, then we could be quite 4 certain about the significance of this, 5 but without that, even in the hands of a 6 careful dissector, the problem is that 7 the amount of hemorrhage that's present 8 is so small it's really only microscopic 9 in nature, so it could not be seen with 10 the naked eye, that anyone could induce 11 such an artifact. So, I think it's 12 real, but I'm far from certain that it's 13 real." 14 Your comments? 15 DR. JACK CRANE: I think we had commented 16 on the finding on microscopy of a little bit of bleeding 17 in the tissues, and almost certainly this represents 18 artifact; whenever the sections are be taken you're 19 getting a little bit of bleeding. 20 There is no evidence of bleeding in the 21 neck structures, so I think it can be excluded as being of 22 any significance, whatsoever. 23 MR. MARK SANDLER: All right. At page 8 24 of the same document, Dr. Smith's conclusions as to the 25 cause of death are -- are reflected. And at paragraph 12,

59

1 it is noted by the appellant that in the post-mortem 2 report Dr. Smith reported the cause of death as 3 undetermined. 4 Now stopping there for a moment. Was that 5 a correct designation of the cause of death in this case? 6 DR. JACK CRANE: In my opinion it was, 7 yes. 8 MR. MARK SANDLER: All right. Then going 9 on it says: 10 "Dr. Smith presented two (2) 11 possibilities as to the cause and manner 12 of Paolo's death. The Crown asked him - 13 - " 14 And I -- I'd prefer, rather than the 15 characterisation, I'm -- I'm going to ask you about the 16 actual transcript references, and that's really what I'm 17 going to ask you to comment on. 18 "Are you able to assist us in putting 19 this together as to what may have 20 happened with Paolo? I can give you two 21 (2) possibilities, and there's only two 22 (2) that I can reasonably entertain; one 23 (1) is that he died of a head injury, 24 which is presumably on a non-accidental 25 basis, and the second is that he died of

60

1 an asphyxial event." 2 And then below he says: 3 "Well, there's two (2) possibilities. 4 If there's a relationship, there's two 5 (2) possibilities I can give you, and I 6 don't know which of the two (2) is 7 correct. And to understand the tie-in 8 between the two (2) we need to 9 understand that I don't know when the 10 head injury occurred. Though the brain 11 weight would suggest that it's a 12 substantial head injury and brain weight 13 would be sufficient to explain death, I 14 can't be absolutely sure. I don't know 15 if the head injury occurred minutes 16 before he died, or hours before he died, 17 or even a day or two (2) before he 18 died." 19 And then on the topic of asphyxia as the 20 alternative, he said: 21 "If the head injury and asphyxia are 22 tied together, I think the best 23 explanations are going to be, one (1), 24 that he did suffer from head injury, and 25 as part of that, suffered seizures or

61

1 status epilepticus or otherwise, in the 2 dying process, lost his ability to 3 control or protect his airway. And 4 remember that as you slip further and 5 further into unconsciousness, one (1) of 6 the things that you lose is the ability 7 to control your airway; your cough or 8 your gag refere -- reflex is one (1) of 9 the last protective mechanisms which are 10 lost in a dying process. And so, as 11 part of the dying process, if he's 12 unconscious; if he's lost his cough and 13 gag reflex, is it possible that 14 something obstructed his airway to cause 15 these asphyxial changes? The answer 16 is, Yeah, it's quite possible." 17 And then it's noted immediately before 18 that, as an alternative, there's discussion about neck 19 compression or smothering causing asphyxiation. Quote: 20 "The vast majority of mechanical 21 asphyxial deaths in kids associated with 22 airway obstruction show no external 23 marks of injury." Closed quote. 24 Then he says: 25 "Outside compression, compression of the

62

1 neck, can cause asphyxia or compression 2 of the necks can cause -- compression of 3 the chest can cause asphyxia. And those 4 are some mechanical examples of where 5 asphyxia can occur. Obviously, the 6 presence of hemorrhage into the neck 7 muscles becomes worrisome, because that 8 would point to some sort of mechanical 9 injury neck compression. And so it may 10 well be that Paolo's final event was one 11 associated with asphyxia on the basis of 12 neck compression. What would be an 13 example of that? Manual strangulation 14 would be the most common type of 15 explanation. 16 Now, assuming that we don't have any 17 other exterior injuries present, are you 18 able to help us with another example 19 that might explain the finding here? 20 Let's for minute just ignore the issue 21 of hemorrhage into the strap muscle of 22 the neck. If we ignore that, there are 23 other autopsy findings that point to a 24 terminal asphyxial event, and those were 25 related to the pinpoint hemorrhages on

63

1 the surface of his thymus and lungs, and 2 those as seen in mechanical asphyxia. 3 They can also be seen through a terminal 4 asphyxial event which occurs 5 superimposed on another process. And, 6 so, my struggle here is know what the 7 relevance of the head injury is to his 8 death, and what the relevance of the 9 asphyxia is, and did the head injury 10 anti-date death by one (1) or two (2) 11 days, and that he was suffocated? 12 Perhaps someone pinched his nose and 13 held his lips together, which is a very 14 easy way of asphyxiating an infant. Or 15 were the terminal asphyxial changes 16 simply those which occurred because of 17 dying from some other process? And I 18 can't answer that, because I don't 19 exactly which of these two (2) 20 possibilities, in fact, were operative 21 in Paolo." 22 Your -- your comments as to the testimony 23 given on the cause of death here? 24 DR. JACK CRANE: Well, I think what Dr. 25 Smith gave in his report was that the cause of death in

64

1 this case was -- was unascertained. Now I -- I think that 2 that's the testimony he should have given in court. 3 We really don't have any evidence at all 4 that he died of a recent head injury. There certainly was 5 evidence that he -- this infant had suffered a head injury 6 in the past; there's no question of that. 7 And that compined -- combined with other 8 injuries that were found, are in my view, indicative of -- 9 of abuse in the past. But we don't have any definitive 10 evidence of a recent head injury. 11 And, in particular, Dr. Chan found no 12 evidence of injury to the brain, or certainly didn't 13 describe any injury to the brain. So, therefore, I cannot 14 see how I -- we can ascribe death to head injury. 15 Now, as regards to the asphyxial event, I 16 suppose Dr. Smith's arguing that if he had a head injury 17 and he -- he suffered a fit, and there's no doubt that 18 fits can occur following head injury. Of course, in this 19 case, we have no way of knowing whether this child had a 20 fit or did not have a fit. 21 So, again, I think that it -- it's really 22 just speculation to put that in. And then going on to 23 neck compression or other forms of asphyxia, such as 24 suffocation. Again, in -- in my view there is no positive 25 pathological evidence to put that forward as a credible

65

1 explanation. 2 Albeit, I would accept, and it's been said 3 before, that suffocation or obstruction of the airway in 4 an infant may not be associated with any pathological 5 findings. But -- as I say, I think the correct cause of 6 death should have been given as unascertained. 7 I think the pathologist should simply say, 8 I don't know, and leave it at that. And I think to put in 9 a number of causes, I think can be confusing to put all 10 these in; the head injury, the fit, the neck compression, 11 smothering. I think that can be confusion -- confusing to 12 the Court. 13 COMMISSIONER STEPHEN GOUDGE: What's your 14 view about saying to the Court that manual strangulation 15 can leave no pathological sign? 16 DR. JACK CRANE: Well manual strangulation 17 is the one (1) actually that will leave a sign, 18 Commissioner. 19 COMMISSIONER STEPHEN GOUDGE: Sorry, yes. 20 Smothering? 21 DR. JACK CRANE: Smothering will not. And 22 I -- I think that's -- that's okay, you -- you can say 23 that. The way you -- you might do it -- I think what you 24 have to say, to start with, is that there is no 25 pathological findings to indicate how the infant died,

66

1 because I think you have to say that first and foremost. 2 And then I think you have to -- and I think 3 it would have been fairer for Dr. Smith, perhaps, to say 4 that his examination was limited to some extent. It was 5 limited because a previous autopsy had been done 6 inadequately; the brain hadn't been kept for detailed 7 examination. So he was in a -- in a difficult position, 8 but I -- I think he has to spell that out to the Court. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: And in fairness, that 12 component of it was spelled out by Dr. Smith. 13 DR. JACK CRANE: Yeah. 14 MR. MARK SANDLER: Yeah. And if you then 15 go to the two (2) other passages that I'm going to read to 16 you. Page 10 of this document, paragraph 15, and we've 17 already seen that portion where he spoke of the 18 possibility of a plastic film from a dry cleaning bag over 19 Paolo's face, or somebody pinching his nose and holding 20 his lips together, which is a very easy way of 21 asphyxiating an infant. 22 He then says: 23 "The other way to tie them in is to have 24 two (2) separate events, but a baby with 25 a head injury initially, if he she has

67

1 not lost consciousness, is going to be 2 very irritable and crying. And the 3 reality is that there are caregivers 4 around who attempt to silence irritable 5 children by holding a pillow over their 6 face or by flipping them over and 7 forcing their face into a pillow or 8 mattress to keep them quiet. And, in 9 doing so, asphyxiate them. They don't 10 always kill them, but it does happen. 11 And, so, an alternative suggestion that 12 I would make to you that would tie the 13 two (2) in, could be that Paolo did 14 suffer a head injury; he was irritable, 15 and then someone decided to keep him 16 quiet by obstructing his airway so he 17 couldn't cry, and in doing so, ended up 18 delivering the coup de grace." 19 What do you say about that testimony? 20 DR. JACK CRANE: Well, the suggestion is 21 to -- to the mechanism of -- of death, first of all, is 22 simply pure speculation. Now, as I said, I -- I don't see 23 any difficulty in saying that you can smother a child and 24 -- and that might not be associated with any pathological 25 finding. I have no difficulty with that concept and --

68

1 and that's -- that's a fact. But then to speculate it's 2 pinching the nose, or it's putting a bag over their head, 3 or plastic film, I think is inappropriate when, again, 4 there's absolutely no evidence to -- to suggest that. 5 And I think to put in a scenario where, 6 again, there is no evidence for it, and to use a term like 7 "coup de grace" I think is rather pejorative and -- and 8 certainly it wouldn't be a term that -- that I would use. 9 MR. MARK SANDLER: All right. And then, 10 finally, at page 11 of the document, at the conclusion of 11 his reexamination by Crown counsel Dr. Smith is asked -- 12 this is he bottom of the page: 13 " Are you able to tell us what the cause 14 of death was not?" 15 Answer: 16 "I don't have any evidence of natural 17 disease to explain Paolo's death. If I 18 accept the history that you gave me; 19 that is, that he was seemingly well at 20 7:00 in the morning and dead at 7:30, or 21 an extremist such that he ultimately 22 died a little while afterwards -- if 23 that's true, and here, once again, you 24 understand how frustrating this is 25 because I don't know. There's a whole

69

1 series of things I don't know whether 2 they're true or not true. If that's 3 true, then I have to regard Paolo's 4 death as being non-accidental in nature 5 until an alternative credible 6 explanation is given." 7 Do you comment? 8 DR. JACK CRANE: Well, if he doesn't know 9 and -- and I don't know, then I think you simply say you 10 don't know and -- and leave it at that. And, again, I 11 think that it's -- it's worrying to say that it's non- 12 accidental in nature until an alternative -- an 13 alternative credible explanation is put forward. 14 I think the answer is, We don't know. Is 15 there a possibility it might be natural? Well, yes, there 16 is a possibility. We have inadequate material to come to 17 a definitive conclusion. 18 MR. MARK SANDLER: All right. And -- and 19 I'm going to ask you about this a little bit later in the 20 context of systemic, but he -- he expresses a certain 21 frustration on his part about not knowing. 22 Is there a frustration that the forensic 23 pathologist should have about -- about not being able to 24 answer the question of how or why? 25 DR. JACK CRANE: I -- I think the is. I

70

1 mean I -- I think it's -- it's fair to say that cases 2 involving infants and young children can, at times, be 3 some of the most difficult and challenging cases that 4 pathologists have to do. And frequently, at the end of 5 having conducted a very detailed examination, 6 Commissioner, one has to simply say, We haven't 7 established a satisfactory cause of death. 8 And it's frustrating for the pathologist 9 doing it; it's often very frustrating for the family of -- 10 of the deceased; and it's -- obviously it's frustrating, 11 perhaps, for the authorities, particularly if they suspect 12 that something untoward has happened to that child. 13 But that's the reality of -- of pathology; 14 it is not always an exact science. We don't always find 15 something that allows us to say with a degree of certainty 16 as to the cause of death. 17 MR. MARK SANDLER: Okay. 18 COMMISSIONER STEPHEN GOUDGE: Looking back 19 over the last fifteen (15) years, Dr. Crane, is there any 20 way of, even impressionistically, giving a view about 21 whether cause of death unascertained is now more readily 22 used as a conclusion than it was fifteen (15) years ago? 23 DR. JACK CRANE: I certainly think I use 24 it more, Commissioner, than I did. And as I say -- 25 COMMISSIONER STEPHEN GOUDGE: That is the

71

1 getting-older factor -- 2 DR. JACK CRANE: And I think that's -- 3 COMMISSIONER STEPHEN GOUDGE: -- you and I 4 both understand. 5 DR. JACK CRANE: -- that's getting older. 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 DR. JACK CRANE: I think -- I think there 8 probably is. I think we are now being more careful in how 9 we consider cases. I -- I think we -- we are trying to do 10 them in a -- with greater care. I think we take greater 11 time over them. And for all those reasons, I think, 12 perhaps, we, in many cases, are slightly reticent to, you 13 know, nail our colours to the mast and be -- be definitive 14 about things. 15 And I don't think there's any shame in 16 saying you don't know. I mean, I think that's -- if you 17 don't know, then I think you should say that. 18 COMMISSIONER STEPHEN GOUDGE: I appreciate 19 it is impressionistic, but do either of the other two (2), 20 Dr. Milroy or Dr. Butt, have any comment on -- 21 DR. CHRISTOPHER MILROY: I'm -- 22 COMMISSIONER STEPHEN GOUDGE: -- change, 23 if any -- 24 DR. CHRISTOPHER MILROY: Yeah, I -- 25 COMMISSIONER STEPHEN GOUDGE: -- in the

72

1 use of that diagnosis? 2 DR. CHRISTOPHER MILROY: I've got two (2). 3 We started to use "unascertained" in a lot of our infant 4 deaths that didn't fit directly into the SIDS category. 5 So if there was, for example, co-sleeping or there was 6 some other things that worried us. And we actually got 7 criticized for that by some of the pediatric groups 8 saying, Well, you should call these SUDI, but -- which 9 means "Sudden Unexpected Death in Infancy, but the reality 10 is it's the same thing. 11 And, certainly, I think that there has been 12 a greater willingness to use "unascertained," not just 13 because we're getting older, but because I think that it's 14 appreciated that, you know, we shouldn't guess in the way 15 we may have done. And it's now, if you like, a standard 16 chapter in textbooks and in articles, you know, the 17 "negative autopsy." 18 And, so, we're increasingly recognizing 19 that, in fact, although, for example, in toxicology terms, 20 we used to be very sure that a post-mortem concentration 21 of the drug had relevance. Now we are less sure because 22 we appreciate that there are factors that affect the 23 concentration, including the person's habituation to drugs 24 and so on. 25 So, even where you have a drug

73

1 concentration that seems to be potentially fatal, it may 2 not be. So, we're learning, actually, to doubt more. 3 Time of death is something that we were more positive of 4 forty (40) years ago than we are now. So, that there is a 5 sort of culture of questioning more than we did in 6 previous times. 7 COMMISSIONER STEPHEN GOUDGE: Dr. Butt...? 8 DR. JOHN BUTT: Well, I agree with that, 9 and -- and I won't go farther than that except to say 10 that there are tools that -- and -- and reports, for 11 example, in the scientific treatises that -- that help to 12 sharpen diagnosis. 13 And I think that that -- it's true to say 14 that one becomes more conservative about these things, I 15 think, with experience. But I don't put a gloomy picture 16 and I don't think the others mean too either. 17 In fact, I think that the diagnostic tools 18 actually have increased in value, and they've added 19 materially to the ability to make a good diagnosis. So 20 it's -- I think it has to be put into balance. 21 DR. CHRISTOPHER MILROY: Perhaps I should 22 add one (1) thing, Commissioner. Just to say that if you 23 -- you look at the surveys of an experienced departments 24 of forensic pathology, the number of autopsies in which no 25 cause of death is determined is upwards of 5 percent, 3 to

74

1 5 percent. So it's not an uncommon problem. 2 COMMISSIONER STEPHEN GOUDGE: Thank you. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. Two (2) 6 other documents that I'm going to briefly take you to, 7 Professor Crane. The first is your own autopsy report 8 review form at Tab 14, which is PFP002910. And if I can 9 take you to page 2 of that document. 10 And the reason I'm putting this to you, 11 Professor Crane, is that -- is that affidavit evidence in 12 the Supreme Court of Canada -- I'm sorry, viva voce 13 evidence, as well as written evidence, in the Supreme 14 Court of Canada addressed, in part, an interpretation of 15 one (1) line contained in your report. 16 So we're going to go to the source and -- 17 and clarify what is was that was meant in one (1) item 18 here. You've reflected under -- excuse me for a moment - 19 - narrative under "cause of death." 20 "Not reviewable because of deficiencies 21 in original autopsy and failure of first 22 pathologist to detect the left parietal 23 fracture and consider the possibility of 24 underlying brain injury." 25 Now stopping there. That's a reference, in

75

1 part, to some of the difficulties that Dr. Smith had at 2 the stage of his intervention? 3 DR. JACK CRANE: That's correct. 4 MR. MARK SANDLER: And then you go on: 5 "However, giving the cause of death as 6 undetermined is reasonable, bearing in 7 mind the deficiencies of the original 8 autopsy." 9 And, again, you've confirmed that in your 10 testimony a little earlier today. And then it says: 11 "This was not a natural death on the 12 available evidence, nor was this a SIDS 13 case." 14 Could you explain what you mean by the 15 phrase, 16 "This was not a natural death on the 17 available evidence, nor was this a SIDS 18 case"? 19 DR. JACK CRANE: Yes. On what was 20 available to me to look at, I find no evidence of natural 21 disease to account for the death. But I could only go on 22 what material was presented to me whenever I did this -- 23 this review. So I wasn't excluding the possibility of a 24 natural disease process. What I was saying was that, on 25 material I looked at, I find no evidence of a natural

76

1 disease. 2 MR. MARK SANDLER: You couldn't 3 affirmatively find it? 4 DR. JACK CRANE: That's correct. 5 MR. MARK SANDLER: All right. And as for 6 the SIDS, this was not a SIDS case. You've made it 7 abundantly clear through the evidence that you gave in the 8 Nicholas (phonetic) matter, those circumstances under 9 which a case should be characterized as a SIDS case. 10 And I -- I take it that the existence of 11 the other injuries that have been described in the record 12 would preclude this being characterized as a SIDS case? 13 DR. JACK CRANE: That -- that's correct. 14 There -- there were positive findings and -- and, 15 therefore, those pine -- findings take it out of the SIDS 16 category. 17 MR. MARK SANDLER: All right. And 18 finally, if I can take you to Tab 20 of your binder, and 19 this is PFP-014595. And this is a letter dated September 20 the 27th, 2002 from Dr. Cairns, Deputy Chief Coroner for 21 Ontario, to Ms. Cecchetto, Senior Counsel, Crown Law 22 Criminal. And we know that she was the Crown who had 23 carriage of this matter that we've been talking about. 24 And he says: 25 "My apologies for the delay in getting

77

1 this report to you. At your request, I 2 have completed a thorough review of Dr. 3 Smith's work in relation to the death of 4 Paolo. This review included an 5 examination of the original autopsy 6 report prepared by Dr. Chan, and the 7 subsequent autopsy report prepared by 8 Dr. Smith, as well as autopsy 9 photographs and all other photographs of 10 the deceased. I also read transcripts 11 of the testimony given by the following 12 individuals at the trial before the 13 Honourable Justice Strong [should be 14 Stong]. And he lists Mr. Lymer, Mr. 15 Dardaine, Dr. Chan, Dr. Huyer, Dr. 16 Babyn, and Dr. Smith. The result of my 17 review; I have no concerns regarding the 18 opinion given by Dr. Smith, and see no 19 reason, whatsoever, for our office at 20 the -- or the Crown Attorney to hire 21 another expert." 22 Your comment? 23 DR. JACK CRANE: Well, I have con -- some 24 concerns that Dr. Cairns is essentially giving his opinion 25 on pathological evidence. And it seems to me that -- as I

78

1 comment on previously, I think it's inappropriate for a 2 coroner to do that. 3 This was obviously a pathological matter, 4 and I think if -- if anyone was going to, if you like, 5 review that material, it probably should be a forensic 6 pathologist, to see whether there's anything in Dr. 7 Smith's testimony that required to be looked at again. 8 MR. MARK SANDLER: Okay. Thank you very 9 much. Those are all of the questions that I have on -- on 10 the Paolo matter, Commissioner. Commissioner, we're now 11 going to turn for the balance of the morning to addressing 12 some of the systemic issues that we've identified, and 13 some of the systemic materials that have been made 14 available to us from -- from the British Isles. 15 Now what I'm going to suggest is, that even 16 though it's earlier then we normally break, if we take our 17 fifteen (15) minute break at this point, perhaps our panel 18 can reassemble the systemic materials, as can you, and 19 that we can proceed at that time. 20 COMMISSIONER STEPHEN GOUDGE: Okay. We'll 21 come back at 20 past 11:00. Thank you. 22 23 --- Upon recessing at 11:04 a.m. 24 --- Upon resuming at 11:25 a.m. 25

79

1 THE REGISTRAR: All rise. Please be 2 seated. 3 COMMISSIONER STEPHEN GOUDGE: Mr. 4 Sandler...? 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Professor Crane, I'm 8 going to start with you if I may. We've heard from all 9 three (3) of you about some of the issues raised in 10 connection with both the content and way in which opinions 11 are expressed both in autopsy reports, and in testimony to 12 the courts. 13 And I know you've give quite a bit of 14 thought to -- to the themes that arise here from the 15 review that has been done by -- by all of you. 16 Could you provide the Commissioner with 17 your comments in that regard? 18 DR. JACK CRANE: Yes. One (1) of the 19 things I accept, Commissioner, is that obviously forensic 20 pathology practice varies from jurisdiction to 21 jurisdiction. And I'm coming at it from a UK perspective. 22 But one (1) of the things that we did in 23 the UK, was to develop a -- a code of practice on 24 performance standards, and, jointly with our Royal 25 College, and jointly with the Home Office.

80

1 COMMISSIONER STEPHEN GOUDGE: Who is "we"? 2 DR. JACK CRANE: The Home Office and the 3 Royal College of Pathologists. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 DR. JACK CRANE: This was a joint 6 document. And the purpose of that document was to try to 7 standardize how pathologists should perform; how autopsy 8 reports should be prepared. 9 And one (1) of the principles in that 10 document is that conclusions -- or opinions should be 11 included in all autopsy reports, and that those 12 conclusions and opinions should have a signed pathological 13 basis. 14 And that all pathological evidence 15 presented should be both reasonable and reviewable. 16 COMMISSIONER STEPHEN GOUDGE: When did you 17 do that? 18 DR. JACK CRANE: It started off, first of 19 all, as a set of guidelines, and that was produced, I 20 think, in the late '90's. And then in 2000 -- 21 COMMISSIONER STEPHEN GOUDGE: By the same 22 duality? Home -- 23 DR. JACK CRANE: It was initially by the 24 Home Office. 25 COMMISSIONER STEPHEN GOUDGE: Home Office.

81

1 DR. JACK CRANE: Yes. And what we then 2 decided to do was to make it a Code of Practice as opposed 3 to guidelines, and that was produced -- 4 COMMISSIONER STEPHEN GOUDGE: What's the 5 distinction? 6 DR. JACK CRANE: Well, the code of 7 practice means that you're expected to adhere to it, and 8 that if you deviate from the code of practice, you have to 9 -- and some issue arises, then you have to justify why you 10 have deviated from the standards in the Code of Practice. 11 COMMISSIONER STEPHEN GOUDGE: Justify both 12 to the Home Office and to the College? 13 DR. JACK CRANE: Yes. It would probably 14 be the Home Office, because they would be responsible for 15 any subsequent disciplinary proceedings that might ensue 16 as -- as a result of perhaps a failure -- 17 COMMISSIONER STEPHEN GOUDGE: In relation 18 to your presence on the register? 19 DR. JACK CRANE: That's correct. And that 20 joint document was first produced in 2004. 21 MR. MARK SANDLER: All right. 22 COMMISSIONER STEPHEN GOUDGE: And was 23 there any set of occurrences that caused the production of 24 the document? 25 DR. JACK CRANE: The reason for it was

82

1 that we had been -- as I think I indicated previously, 2 been asking the home office pathologist to do audits of 3 the work. We were asking them to submit to the Scientific 4 Standards Committee autopsy reports. Maybe half a dozen 5 reports at a time, which would then be reviewed by the 6 Committee, and that included -- the Committee included 7 other pathologists, coroner, people like that. 8 And what was apparent was that there was 9 variation in the standard and quality and the way reports 10 were presented. So by producing this document, what we 11 were trying to do was to guide pathologists in how they 12 should do their work, and how they should produce their 13 reports. 14 MR. MARK SANDLER: And just stopping there 15 for a moment, the code is actually found at Tab 8 of your 16 materials, Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: Tab 8 of the 18 systemic book? 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Yes. Volume 1. And 22 it's PFP 149750. 23 And you'll see at page 4 of the document, 24 the page headed up Introduction, at the highlighted 25 portion, that the Code of Practice is consistent with the

83

1 recommendation of the Council of Europe on the 2 harmonization of medical/legal autopsy rules adopted by 3 the Committee of Ministers in February 1999, and takes 4 account of the judgment handed down in April 2003 by the 5 Court of Appeal in relation to the Sally Clark case. 6 Professor Milroy, just stopping there, why 7 is the Sally Clark case figure prominently in this code? 8 DR. CHRISTOPHER MILROY: Well it was one 9 (1) of the first series of cases that involved medical 10 expert witnesses being challenged in the court of Appeal, 11 and so that's -- and it -- it was an important miscarriage 12 of justice. 13 MR. MARK SANDLER: All right. So, 14 Professor Crane, if you could continue on in -- in the 15 outline that you were going to provide. 16 DR. JACK CRANE: Yes. One (1) aspect of 17 the -- the code is, as I said, the pathology reports. 18 The view that we took was that the police, 19 coroner, the prosecutors, and indeed the defendants, need 20 to be aware of the significance of pathological findings. 21 How these have been interpreted by the 22 pathologist; the likely significance in respect of 23 causation; the strength of any opinions held by 24 pathologists; alternative explanations for the findings; 25 and how their evidence is likely to be presented in Court

84

1 proceedings. 2 Because in -- in many cases, that 3 information may be crucial when a decision regarding a 4 prosecution has to be made, and of course, may alter the 5 nature of any charges that -- that may be preferred. 6 Furthermore, the defence are entitled to 7 know before trial the opinions of the pathologist and 8 obviously give them the opportunity to consider these, 9 possibly seeking advice from their own pathologist. 10 MR. MARK SANDLER: And just stopping there 11 for a moment. Commissioner, you'll see on the screen, 12 it's at page 19 of -- of the document, the standards for a 13 pathologist autopsy report as set out in the Code of 14 Practice. 15 Professor Crane...? 16 DR. JACK CRANE: Yeah. I think as -- as I 17 indicated before, how one (1) produces a report may vary 18 from jurisdiction to jurisdiction, and, of course, 19 individual pathologists may have their own style in how 20 they produce it. 21 Some coroners may want reports written in a 22 particular format, but allowing for these sources of 23 variation the -- the autopsy report should follow some 24 form of standardised structure; it should be clearly laid 25 out and easily readable in a sort of section by section

85

1 format and -- and that's the format that is expected of 2 pathologists in the United Kingdom; a preamble, a history 3 section, a scene examination, the findings external and 4 internal, the results of any supplementary findings, 5 commentary and conclusions, and a cause of death. 6 MR. MARK SANDLER: Now, perhaps you could 7 speak a little bit more directly about commentary and 8 conclusions in the report. 9 DR. JACK CRANE: The home office and 10 indeed the -- the college think that the pathologist must 11 attempt to explain in easily understood language the cause 12 and -- and mechanism of death, as well as commenting on 13 other relevant findings. 14 And this must be clearly set out in a 15 comprehensive manner to allow interpretation of the 16 information by the police, coroner, prosecution, counsel 17 and so forth. 18 The opinions expressed must be fair and 19 unbiased and should not be written to assist one (1) side 20 or the other. And no information which may have a 21 significant bearing on the death should be excluded, and - 22 - and that brings in the issue, of course, of complete 23 disclosure of all the information. 24 I think one (1) of the difficulties that 25 the reviewers had when reading Dr. Smith's report was it -

86

1 - it wasn't apparent as -- as to his views on the 2 significance or causation in the autopsy findings. 3 And I'm quite sure that Dr. Smith discussed 4 these verbally, for example, with the, for example, the 5 investigating police officers and so forth, but I think, 6 as I had indicated before, these conversations can be open 7 to -- to misinterpretation. 8 The police sometimes hear what -- what they 9 want to hear, and of course, are no help to others who 10 simply have the report and are relying on the report to 11 make a decision, for example, in respect of laying charges 12 or -- or preferring -- or -- or in a prosecution. 13 And of course, again there -- the defence, 14 if -- if there is going to be a prosecution, need to know 15 what the pathologist's views, and thoughts, and opinions 16 are on a case. 17 In many cases it -- it may not be possible 18 for a pathologist to state categorically how a particular 19 injury or injury occurred, or indeed how -- what the cause 20 of death was, so it's important to -- to give some 21 indications of the limits of reliability of such 22 conclusions and possible alternative explanations or 23 opinions should also be given. 24 Decisions made by pathologists can have 25 serious legal implications and sometimes decisions are

87

1 made based solely on the opinions of the pathologist. The 2 autopsy report, and specifically, the conclusions must be 3 sufficiently detailed to allow those decisions to be made. 4 The report, therefore, must be written in a 5 fair and impartial way. I could perhaps go on now, 6 Commissioner, just to comment about the -- the 7 presentation of evidence in Court, if -- if that's what 8 you wish, Mr. Sandler. 9 MR. MARK SANDLER: Yes, please. 10 DR. JACK CRANE: I think it's probably 11 fair to say that the -- the majority of senior forensic 12 pathologists have -- have not received any formal training 13 in the presentation of evidence and in giving testimony in 14 the Courts. 15 And for those of us who have been in 16 practice for a number of years, we have probably relied 17 heavily on -- on experience gained -- gained initially 18 perhaps in the lower Courts, going to inquests, and of 19 course, listening to our -- our senior colleagues. 20 And -- and I think it's recognised that 21 some experts are better at presenting evidence than 22 others. And of course, some people may be perceived as 23 being good witnesses. Because their testimony is 24 forceful, they may be unprepared to consider alternative 25 explanations or, indeed, to concede points in

88

1 cross-examination. And courts, and sometimes juries, are 2 often impressed by those medical experts who appear very 3 sure of their ground, whilst perhaps being less impressed 4 with the expert who's prepared to say, Well, I don't know, 5 I don't know what the answer is or the one who's prepared 6 to consider alternate explanations. 7 One (1) of the concerns we had with some of 8 Dr. Smith's testimony was that his evidence didn't always 9 appear to be presented in a very clear or logical manner, 10 and at times, seemed to be rather confused and -- and 11 disjointed. We thought that some of his theories on the 12 mechanism of -- of injuries had no scien -- scientific or 13 -- or pathological basis. We were concerned about the 14 misinterpretation of some autopsy findings, for example, 15 the thoracic petechiae. 16 We also were concerned about, perhaps, the 17 inappropriate use of comparators for injuries, which, 18 perhaps, could affect a jury. And, of course, in one (1) 19 instance there was the presen -- presentation of new 20 evidence without actually producing a supplementary report 21 in respect of that new evidence. 22 In addition to that document, we also 23 prepared an -- another document and it's called, "Good 24 Medical Practice in Forensic Pathology". 25 MR. MARK SANDLER: And just stopping there

89

1 for a moment. If -- if we could bring up PFP150634, and 2 Commissioner, you'll find this at Tab 19 of Volume 1 of 3 the Systemic Materials binder. 4 DR. JACK CRANE: All -- 5 COMMISSIONER STEPHEN GOUDGE: And the "we" 6 here is the same team of the Home Office and the College? 7 DR. JACK CRANE: No, in fact, it's me. 8 DR. CHRISTOPHER MILROY: The royal we. 9 MR. MARK SANDLER: It's not the Royal 10 College; it's the royal we. 11 DR. JACK CRANE: All doctors in the United 12 Kingdom are subject to regulation by the General Medical 13 Council. 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. JACK CRANE: And the General Medical 16 Council provides advice to doctors as to how they should 17 behave in -- in their practice. And that's called Good 18 Medical Practice. And because I sit on the -- the General 19 Medical Council and the fitness to practice, I produced 20 this document in relation to Good Medical Practice in 21 forensic pathology. 22 It follows, essentially, what all doctors 23 are sup -- supposed to do, but specifically related to 24 pathology, and how we expect doctors to behave. And I'll 25 -- I'll only take you to, perhaps, one (1) of the comments

90

1 that I've made in responsibilities of forensic 2 pathologists, as an expert witness. And it's -- and it 3 reads as follows: 4 "Be prepared to reconsider and, if 5 necessary, change your advice, 6 conclusions, or opinion in the light of 7 new information or new developments in 8 the relevant field now to take the 9 initiative in informing those who have 10 made a -- who have made a le -- 11 legitimate interest in your advise, 12 conclusions, or opinions promptly of any 13 such changes made." 14 So the onus is on the pathologist if he has changed his 15 mind or he has different views to ensure that those who 16 have a -- a proper right to have that information are 17 informed promptly. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: All right. Now, I'm 21 going to ask you, Professor Crane, one (1) more question 22 and then I'll direct my questions to -- 23 COMMISSIONER STEPHEN GOUDGE: Can I just 24 ask you a question about these two (2) documents, Dr. 25 Crane? Was there consideration given in either -- in

91

1 either the code of conduct or in your good practice memo - 2 - to speaking about language that should or should not be 3 used in preparing reports or in giving evidence? 4 I mean, I'm thinking about the consistent 5 with kind of language that the three (3) of you have 6 discussed over the last two (2) days. 7 DR. JACK CRANE: There hasn't been any 8 specific advice given in that, but I -- I have to say in - 9 - in the light of the comments that -- that you, yourself, 10 has made, I think that it's an area that usually should be 11 explored because I think that there -- one (1) of the 12 important things - and I think we have stressed this over 13 and over again - is good communication and how we put 14 across our views and opinions, and how those views and 15 opinions are interpreted by others. 16 So, I think, there is work to be done 17 there, Commissioner, and I think it's something that we 18 should consider doing. 19 COMMISSIONER STEPHEN GOUDGE: We talked 20 about, at least, a couple of things, both the "better not 21 to do's," like "consistent with" and expressing levels of 22 certainty in one's opinion? 23 DR. JACK CRANE: Yes. And I think those 24 points are very valid and I think they're worth 25 considering to see, perhaps, how -- what sort of

92

1 vocabulary we should be using in producing our reports. 2 COMMISSIONER STEPHEN GOUDGE: Is that 3 doable, I mean, recognizing that there are a variety of 4 people authoring these documents across the United 5 Kingdom? 6 Is it a realistic expectation? 7 DR. JACK CRANE: Well, I think we won't 8 know unless we give it a go and try it. And I think that 9 it's an exercise that is worth -- worth pursuing. 10 DR. CHRISTOPHER MILROY: People have 11 written about this before so it's -- it's not entirely 12 new. I mean -- so it's, I think, as Dr. Crane says, it's 13 an exercise that should be done. 14 COMMISSIONER STEPHEN GOUDGE: Has it been 15 done anywhere in the world, as far as you know? 16 DR. CHRISTOPHER MILROY: Well, people have 17 -- I mean, I've written it -- with a Queen's Counsel, a 18 chapter in Professor Whitwell's book in which we do 19 comment on the use of the term "consistent with." 20 COMMISSIONER STEPHEN GOUDGE: But in terms 21 of some normative guide -- 22 DR. CHRISTOPHER MILROY: No -- 23 COMMISSIONER STEPHEN GOUDGE: -- put out 24 by -- 25 DR. CHRISTOPHER MILROY: -- not to my

93

1 knowledge. 2 COMMISSIONER STEPHEN GOUDGE: -- an 3 authoritative body, Dr. Milroy? 4 DR. CHRISTOPHER MILROY: No, not to my 5 knowledge. 6 COMMISSIONER STEPHEN GOUDGE: It is one 7 (1) thing to put it in a text -- 8 DR. CHRISTOPHER MILROY: Yeah. 9 COMMISSIONER STEPHEN GOUDGE: -- as, in 10 effect, "best practice," it is another to put it in as a 11 guide or a regulatory tool -- 12 DR. CHRISTOPHER MILROY: Yeah. 13 COMMISSIONER STEPHEN GOUDGE: -- which is 14 what these two (2) documents are. Okay. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: And just as a matter of 18 interest, as I listened to the discussion I've asked that 19 the Kennedy report be placed up on the screen. And, 20 Commissioner, I won't take you to the full report right 21 now, which is at Tab 9, but -- but up on the screen is 22 7.6, and it's on terminology. And it says: 23 "There has been considerable variation 24 between pathologists and the terminology 25 used to report the initial findings from

94

1 the post-mortem examination. Some 2 pathologists have taken the view that 3 since at this stage, the full results of 4 the various testing is not available, 5 it's not appropriate to the use the term 6 "Sudden Infant Death Syndrome." Some 7 pathologists have therefore used the 8 term "unascertained" as an honest 9 statement of their ignorance of the 10 cause of death at this stage with a view 11 to giving a more precise cause later, if 12 possible. Others have used the term 13 "Sudden Unexpected Death in Infancy," a 14 tautology, in order to signify that 15 while no cause has been yet identified, 16 and the definition of SIDS cannot yet be 17 met, they have no cause for suspicion 18 and the funeral can therefore proceed 19 with the death being initially 20 registered as "SUDI" with a more precise 21 diagnosis, which may be SIDS, following 22 the full results of investigations. 23 Yet, other pathologists reserve the term 24 "unascertained" for those cases in which 25 they have serious concerns about the

95

1 possibility of unnatural causes or where 2 they feel that further investigation is 3 needed to rule out this possibility. 4 The working group formed the opinion 5 that it is essential that the 6 interpretation of these terms and their 7 use must be standardized between 8 pathologists and between coroners." 9 So if we look at the dialogue that has 10 developed in the last few days, it would appear that there 11 -- there might be some benefit in having a document 12 prepared that addresses the communicative issues that 13 you've raised in your testimony; the use of the term 14 "asphyxia"; the use of the term "consistent with". The 15 gradation of level of confidence in the -- in the opinions 16 that are given. And in the uniform use of terms such as 17 "SIDS" and "SUDI," "unascertained" or "undetermined". 18 Do you all agree that that would be a 19 recommendation that should be considered by the 20 Commissioner? 21 DR. JACK CRANE: Yes, I do. 22 MR. MARK SANDLER: All right. 23 DR. CHRISTOPHER MILROY: Yes. 24 MR. MARK SANDLER: Professor Crane, I was 25 going to ask you another question before we moved to -- to

96

1 the other panelist, and that's this: 2 That the Commissioner has heard in the 3 evidence that -- that there are areas of forensic 4 pathology where knowledge is -- is ever increasing; where 5 the opinions that have been expressed may -- may be 6 outdated or obsolete as a result of new work that's done 7 in the area. 8 We saw, for example, on the Tyrell case 9 that -- as you had indicated -- that although you didn't 10 accept the opinion of Dr. Smith that was given, that there 11 was not only some literature but also the opinions of 12 others including the neuropathology consult, that appeared 13 to provide support for the opinions that he was being 14 expressed, at least on accidental falls as causing fatal 15 injuries. 16 The Commissioner is going to hear from 17 Professor Whitwell a little bit later in the piece that 18 some of the opinions being expressed by Dr. Smith on 19 Shaken Baby Syndrome may have represented conventionally 20 expressed views at the time by a number of pathologists. 21 So the question is: Does the British Isles 22 -- or do the British Isles provide us any sort of guidance 23 or insight on how flawed or obsolete pathology can be 24 corrected after the criminal process has gone through 25 trial and appeal?

97

1 DR. JACK CRANE: Yes, one (1) of the 2 things that has been developed in the United Kingdom is a 3 body set up by the government, and that's the Criminal 4 Cases Review Commission. 5 And the purpose of that body is that it 6 will consider cases where it's suggested that there may 7 have been a miscarriage of justice. Now, it's an 8 independent, but statutory body, and the Commissioners 9 will look at cases and, if necessary -- if they feel there 10 is -- there is some evi -- some aspect of the case that 11 needs to be investigated, then they will investigate it. 12 That may mean, for example, if it's a 13 pathology issue, en -- engaging a pathologist to review 14 cases to -- to look at the case and to provide the 15 Commission with new evidence. It may be on forensic 16 science, so in -- in which case they may again engage a 17 forensic science -- scientist. They may ask for 18 additional work on the case to be done. 19 And the advantage of that is that, say that 20 although they're a statutory body, they are independent; 21 they make their own mind up. And -- and they can then, 22 having considered the case, if necessary, refer a case to 23 the Court of Appeal again. 24 MR. MARK SANDLER: All right. Now, I 25 know, Professor Milroy, that both you and Professor Crane

98

1 have been involved in providing advice to -- to the 2 Commission on cases that have been referred to it. 3 How has forensic pathology faired at the 4 Commission? Or put another way, how do you see, from a 5 forensic pathologist's perspective, the successes or 6 failures of the Commission in dealing with the issue that 7 we're raising here? 8 DR. CHRISTOPHER MILROY: Well, in -- from 9 my perspective the -- the advantage of the CCRC is it 10 provides an independent nonpolitical reexamination of 11 cases where -- where they feel that there is some 12 question. They -- they sometimes get -- I've actually 13 been involved in two (2) processes really; one (1) is by 14 providing pro bona reports for solicitors and then those 15 going forward to the Commission who will then seek other 16 advice and then the Commission have come directly to me. 17 I think that Professor Crane has the -- so 18 far, the cases I have dealt with have not resulted in 19 referrals. Although I have been involved separately in 20 cases that have been referred, if -- if I've come in 21 through the solicitor route, rather than the CCRS result, 22 and, in fact, in -- certainly in one (1) of them, the case 23 was subsequently retried with ultimately an acquittal. 24 And I think Professor Crane has experience 25 of actually a case being quashed upon his evidence through

99

1 the CCRS, so I think I view it as a good -- I certainly 2 view it as -- as a -- as an improvement on the previous 3 system. 4 MR. MARK SANDLER: All right. I'm going 5 to switch topics, if I may, and ask you a little bit 6 about -- 7 COMMISSIONER STEPHEN GOUDGE: Well, you're 8 going to come back to it. In terms of the policing 9 mechanism for, in effect, the pathologist professionally, 10 we talked a bit on Monday about the home office process. 11 Is there a comparable process on the Royal 12 College side? 13 DR. CHRISTOPHER MILROY: The Royal College 14 doesn't have a -- per se, a policing role. The Royal 15 College sets standards, keeps an eye on people doing 16 continue -- well, runs the continuing professional 17 development. Although if you don't do continued 18 professional development, you -- you're not removed from 19 being a college member, although you are then held not to 20 be in good standing with the college, so you can't serve 21 on committees, act as an examiner. 22 You can be dis -- I think you can be 23 dismissed from being a member of the college if you bring 24 it into disrepute, but that's the only -- 25 COMMISSIONER STEPHEN GOUDGE: That's --

100

1 DR. CHRISTOPHER MILROY: -- that's really 2 the only mechanism that they have. 3 COMMISSIONER STEPHEN GOUDGE: I see. 4 DR. CHRISTOPHER MILROY: And I don't 5 recall anyone it -- it ever happening. So they're not -- 6 they're not really -- they don't really have a -- have a 7 regulatory function. 8 They set standards, and they hold exams, 9 and they -- they -- they're responsible for training, and 10 they're responsible for standards, but they then -- they 11 then don't regulate those standards. 12 COMMISSIONER STEPHEN GOUDGE: So the 13 policing function for pathologists is the home office 14 process you described? 15 DR. CHRISTOPHER MILROY: And the General 16 Medical Council. 17 THE COMMISSIONER: And the General Medical 18 Council. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: And perhaps you could 22 describe, just before we leave this topic, the General 23 Medical Council and the extent to which it has addressed 24 issues of forensic pathology. 25 DR. CHRISTOPHER MILROY: Well it certainly

101

1 -- I mean, certainly forensic pathologists have been 2 placed before the General Medical Council. 3 One (1) for -- in respect of giving expert 4 testimony, or -- one (1) or two (2). In fact, there have 5 -- there have been at least two (2) forensic pathologists 6 who have been disciplined and found guilty of serious 7 professional misconduct. 8 One (1) in the Sally Clark case for failing 9 to disclose information in the Sally Clark case, and 10 another for altering a report that -- that was held to 11 have been a breach of good medical practice, and was sued 12 for professional misconduct. 13 Sir Roy Meadow (Phonetic) also was before 14 the General Medical Council, of course, and so the General 15 Medical Council does have a role. 16 There is a -- there is a tension between 17 the home office and the General Medical Council, and they 18 have tried to meet to set to -- certainly, in questions of 19 performance, that the first people that will look will be 20 the hone office, but the General Medical Council always 21 has an overarching responsibility. 22 COMMISSIONER STEPHEN GOUDGE: But are they 23 essentially both reviewing the same conduct; that is 24 whether the pathologist's report, evidence, was up to 25 professional standards?

102

1 DR. CHRISTOPHER MILROY: Well, in fact in 2 both those cases, both were seen by the home office and by 3 the General Medical Council, so there was a duality in 4 that. 5 THE COMMISSIONER: What's the theory 6 behind having two (2) processes? 7 DR. CHRISTOPHER MILROY: Well, the home 8 office have a register that they have to regulate. 9 COMMISSIONER STEPHEN GOUDGE: So the home 10 office says, We need to regulate our registers, so we must 11 have some form of scrutiny? 12 DR. CHRISTOPHER MILROY: Yes. I think 13 that would be fair, wouldn't it, Dr. Crane? 14 DR. JACK CRANE: Yes. And of course, the 15 GMC has an overarching responsibility as regulating all -- 16 all doctors. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 Right. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: All right. 22 Commissioner, I'm -- I'm going to come back to the Kennedy 23 report just as a vehicle to discuss some of the systemic 24 issues that -- that have been raised. 25 So if we can go to page 7 of the Kennedy

103

1 report; once again, you have at Tab 9 of Volume 1 of the 2 systemic materials. 3 And one (1) of the issues that -- that was 4 raised is in the -- the first highlighted portion on this 5 page, and it says: 6 "A number of excellent protocols for the 7 investigation of infant deaths already 8 exists, but we decided to draw on the 9 experience of one (1) of our own members 10 who devised another protocol, adjusting 11 it where we felt it was necessary. The 12 protocol calls for a pediatrician 13 working with a specially trained senior 14 police officer to visit a bereaved 15 family at home within twenty-four (24) 16 hours of death to take a complete 17 history, and offer initial support." 18 So, the first question that I have, I'm 19 going to direct to -- to Dr. Butt. One (1) of the 20 systemic issues that -- that's raised in the context of 21 death investigations is -- is how families become informed 22 of the pathology associated with their case. 23 Is that the role, in your view ,for a 24 forensic pathologist, and are there any limits upon that? 25 DR. JOHN BUTT: Well, I think it is the

104

1 role of the forensic pathologist. He's the one with the 2 firsthand information and the experience of the autopsy. 3 The only concerns that I can see are in 4 certain cases that are going to be related to the Court, 5 where the family may play a role. And the other situation 6 is the available of manpower, or resources, to do this. 7 Although it's obvious that there are not 8 that many deaths involving children, it still is a 9 difficult thing to apportion a forensic pathologist's 10 time. 11 But I think it's a -- I think it's an 12 important area, and I think it's one that deserves the 13 attention of the forensic pathologist. 14 If one were to say, Well, what are the 15 alternatives and that you could have somebody else do it, 16 well, one (1) thing that is commonly done is a copy of the 17 autopsy report in "benign situations," quote/unquote, can 18 be sent to the family doctor or family pediatrician who 19 can explain the autopsy results. 20 The other option, of course, is to use 21 somebody that's in the chain of command of the Coroner's 22 Office, such as the coroner, himself, or a representative 23 of the Coroner's Office; for example, a lay investigator 24 who may be attached to the Office who has sensitivities 25 and training in the Province of Alberta, Nova Scotia,

105

1 Manitoba. 2 Such people are forensic nurses -- death 3 investigative nurses. 4 MR. MARK SANDLER: And -- and that -- 5 DR. JOHN BUTT: And I think that that's 6 about as much as I'd like to say under the circumstances. 7 MR. MARK SANDLER: All right. 8 COMMISSIONER STEPHEN GOUDGE: Are any of 9 those satisfactory or would you have a preference as to 10 the vehicle for training? 11 DR. JOHN BUTT: Well, I think that a 12 number of them is satisfactory, and I think the obvious 13 one that is the best solution is to have the forensic 14 pathologist involved in the thing. 15 At the same time, there are certain 16 sensitivities by forensic pathologists about meeting with 17 families and their own ability to handle things 18 emotionally -- that's a fact -- you know, in terms of 19 meeting with families who have lost children, it's 20 sometimes a very sensitive issue for everybody. 21 My own experience with that is that ought 22 not to hinder anybody from meeting with the family. The 23 fact that they, themselves, as a pathologist is sensitive 24 to the issues is something that the family would be -- 25 would realize is a compassionate approach, which is really

106

1 what the story is here. Because the family needs to be 2 dealt with in a way that is deserving of their needs and 3 recognize their grievance. 4 COMMISSIONER STEPHEN GOUDGE: I take it, 5 then most cases where it is a criminally suspicious death, 6 it would be the police that ought to make the judgment 7 about whether the communication or when the communication 8 can take place? 9 DR. JOHN BUTT: Obviously, it's going to 10 be regulated, is -- is that answer. Whether that's 11 regulated by the police or whether it's regulated by the 12 Crown is -- is a matter, I think, for discussion. But, 13 clearly, in some circumstances, the information has to be 14 guarded. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: All right. Professor 18 Milroy, the recommendation in Kennedy, which was looking 19 at the investigation of sudden and unexpected deaths of 20 infants and how they should be dealt with, suggested a 21 protocol involving a pediatrician with a specially trained 22 senior police officer to visit the bereaved family and, 23 indeed, take the history that would be provide in turn to 24 the forensic pathologist. 25 Has that approach been adopted in England

107

1 and Whales, and what do you think of it? 2 DR. CHRISTOPHER MILROY: Well, no it 3 hasn't been adopted. I think that there are -- there are 4 three (3) tensions. One (1) is, the police may not be 5 very keen a doctor interviewing someone before they have, 6 for the -- for obvious legal reasons. 7 The second is obviously it's resour -- 8 resource intensive on pediatricians who have other job -- 9 have -- you know, their principal role is in hospital care 10 of children. 11 There is no training of pediatricians in 12 death scene investigation. There is training, actually, 13 in forensic pathologists in death scene investigation. So 14 those are the tensions. We do, as forensic pathologists, 15 visit scenes occasionally, although it has to be said, 16 most babies are removed from these scenes and brought to 17 hospital. 18 So in the first instance, the scene 19 examination is not going to be always very helpful, 20 although it can be to reconstruct. And there are, for 21 example, programs where nurses go out and, with dolls, ask 22 for the position of the baby. 23 And -- and clearly these things are very 24 good, it's a question of whether the resources are 25 available to conduct them.

108

1 MR. MARK SANDLER: All right. If we can 2 move down to the second highlighted portion on the Kennedy 3 report, and it says -- it talks about the protocol 4 requiring: 5 "That the post-mortem examination in 6 these kinds of cases be conducted by a 7 pediatric pathologist who has access to 8 the information gathered at the home 9 visit. On a number occasions, the 10 pathologist engaged in these cases has 11 had extensive experience of adult 12 deaths, but inexperienced in dealing 13 with babies. It is for this reason that 14 we recommend the use of pediatric 15 pathologists or of a forensic 16 pathologist with some training in 17 pediatric pathology who's properly 18 credited to do this work. It should be 19 noted, however, that there's currently a 20 severe shortage of both forensic 21 pathologists and pediatric pathologists; 22 a problem that will have to be addressed 23 with some urgency, as our subsequent 24 recommendations indicate." 25 Professor Milroy, I'll stay with you for a

109

1 moment. Did the Kennedy report get the balance on how -- 2 how these cases should be assigned right? 3 DR. CHRISTOPHER MILROY: I'm not actually 4 convinced it did. I still think that forensic 5 pathologists have more of a role than they are putting 6 forward. 7 I think there's -- there's two (2) things 8 to point out. All forensic pathologists now in -- in the 9 UK have training in pediatric pathology, so that's -- and 10 that's now standard. 11 Secondly, not all pediatric pathologists 12 have training in autopsy pathology, but they may just be a 13 tumour diagnosis expert in a hospital. So one has got to 14 be careful; the title is not so important as the training. 15 There's no question that the double-doctor 16 system has many merits, but it mustn't -- and this -- this 17 is not clear from the report -- it mustn't distract from 18 using forensic pathologists where there is clearly overt 19 suspicion. 20 So, there is a role for -- there is a role 21 for both pediatric pathology and forensic pathology, but 22 ultimately the most important thing is the training and 23 experience of the person doing the work. 24 COMMISSIONER STEPHEN GOUDGE: Just remind 25 us, Dr. Milroy, of how the Kennedy Committee came into

110

1 being and its makeup and then what happened to this 2 report? 3 DR. CHRISTOPHER MILROY: Well, it came out 4 of -- it was actually after a letter written by the father 5 of Sally Clark, who was a senior police officer, who wrote 6 to the College and said that he was concerned about the 7 way that -- 8 COMMISSIONER STEPHEN GOUDGE: Which 9 college? 10 DR. CHRISTOPHER MILROY: He wrote to the 11 Royal College of Pathologists. And the Royal College of 12 Pathologists got together with the Royal College of 13 Paediatrics and Child Health to try and work out a 14 protocol. 15 COMMISSIONER STEPHEN GOUDGE: And the 16 second is the counterpart of the Royal College of 17 Pathologists -- 18 DR. CHRISTOPHER MILROY: Yes, they -- 19 COMMISSIONER STEPHEN GOUDGE: -- for those 20 practicing pediatrics? 21 DR. CHRISTOPHER MILROY: Correct. And 22 what was interesting, actually, at the launch is -- and I 23 took issue with this -- Baroness Kennedy actually said, 24 Well, one (1) of the problems was -- was forensic 25 pathologists overcalling things.

111

1 And I had to point out that in the Sally 2 Clark case and the other -- the Cannings, the -- the 3 prosecution had both forensic pathologists and experienced 4 pediatric pathologists on their team. So it wasn't as if 5 it was forensic pathologists just saying their thing and 6 there being no pediatric input. There was actually 7 pediatric input into all of those cases. And I felt that 8 that was somewhat misleading and I think that was 9 conceded. 10 COMMISSIONER STEPHEN GOUDGE: What was the 11 makeup of the Kennedy Committee? 12 DR. CHRISTOPHER MILROY: Well, in fact, it 13 was pediatricians -- I was involved very -- at the very 14 start and the very end but not the Committee, per se. 15 They didn't have a forensic pathologist on it. They did 16 have a ped -- they did have a pediatric pathologist who 17 was the only accredited Home Office pathologist, but they 18 didn't have someone like myself or Professor Crane, who 19 does both. 20 COMMISSIONER STEPHEN GOUDGE: All right. 21 And what has happened to the report? I thought you said 22 it has not been adopted. 23 DR. CHRISTOPHER MILROY: Well, there is an 24 encouragement to use pediatric pathologists and forensic 25 pathologists, and that's really, I think, all that's come

112

1 out of it. There certainly isn't the home visit 2 situations. 3 The protocol for how you conduct the 4 autopsy was pretty much in place anyway, and people were 5 using it. There's been a couple of additions. For 6 example, toxicology was never in the old protocol, and, in 7 fact, the forensic pathologists probably pushed for that 8 more, recognizing poisoning as an occasional -- 9 COMMISSIONER STEPHEN GOUDGE: Well, I 10 guess what I am getting is, has either College, in effect, 11 somehow adopted this report as a good standard of 12 practice? 13 DR. CHRISTOPHER MILROY: Oh yes. I mean, 14 they've adopted it as a good standard of practice -- the 15 College have -- but out there in the real world, so to 16 speak, it's not -- this isn't followed to the letter but 17 the -- 18 COMMISSIONER STEPHEN GOUDGE: The Home 19 Office has not insisted on it? 20 DR. CHRISTOPHER MILROY: No, the Home 21 Office doesn't insist. It's up to the coroner and the 22 senior investigating officer as to how he investigates. 23 But when you've got someone like myself who is a forensic 24 pathologist with pediatric experience, it does fulfil the 25 requirements of the Kennedy Report anyway.

113

1 COMMISSIONER STEPHEN GOUDGE: All right. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Okay. Moving ahead to 5 page 8 of the report, we see at the bottom "The Role of 6 the Expert Witness." And I simply highlight this because 7 it seems to reflect language that Professor Crane utilized 8 earlier in -- in his testimony. 9 "Those who give medical evidence to 10 courts have a duty to ensure that the 11 foundation of the evidence is sound. 12 Unfortunately, doctors are occasionally 13 drawn into error because they base their 14 testimony on medical belief rather than 15 scientific evidence. There's also the 16 temptation, particularly in the very 17 adversarial arena of the criminal 18 courts, to be pushed into certainties 19 where there's none. Barristers for the 20 Crown hate the words "I don't know," 21 whereas the defence lawyer loves them. 22 In criminal cases where guilt must be 23 based on the high standard of proof 24 beyond a reasonable doubt, an expert's 25 reservation may be the rock upon which a

114

1 prosecution founders. However, the 2 expert witness should constantly remind 3 himself or herself they're independent 4 and not there to win for a side. This 5 can be very difficult, because just as 6 lawyers and judges can experience case 7 hardening, so can doctors. Those 8 regularly involved with child abuse can 9 find it hard to be dispassionate, and, 10 indeed, sometimes become hawkish. A 11 doctor can be convinced, based on his or 12 own -- her own experience, that a 13 defendant is guilty, but unless there is 14 compelling evidence supported 15 scientifically, he or she should not 16 express that view in criminal 17 proceedings." 18 I want to ask you a couple of questions 19 arising out of that. I'll -- I'll direct it first to -- 20 to Dr. Butt. 21 One (1) of the things that we've heard is 22 that police officers attend upon the forensic pathologists 23 and provide a history. And I think it fair to say that -- 24 that there may well be two (2) schools of thought on -- on 25 that history being provided.

115

1 One (1) school of thought is that the 2 forensic pathologist should, in ess -- essence receive 3 anything that could conceivably be relevant to his or her 4 task, and the job of filtering that out and remaining 5 objective in the face of it is that of the forensic 6 pathologist. 7 The other school of thought is that 8 forensic pathologist opinions can be coloured by 9 significant prejudicial information that's provided by -- 10 by the police, and that could ultimately create some sort 11 of a tunnel vision in the opinions that are ultimately 12 expressed. 13 Where do you fall on -- on that issue? 14 DR. JOHN BUTT: Well, I -- I think in -- 15 the forensic pathologist doesn't want to be blind-sided. 16 To find out information, for example, where he's confident 17 enough to express something about the time of death, and 18 then find out that the person was actually alive at that 19 time because there's a reliable witness. 20 MR. MARK SANDLER: Tha -- that would be a 21 problem. 22 DR. JOHN BUTT: Well, it could be. The -- 23 the -- I -- I think that it probably deserves more 24 formality in having a structure. So let's look at it from 25 the point of view of who is in the mortuary at the time.

116

1 And that number is usually fairly regulated under the 2 Canadian system; it may be one (1) police officer if 3 there's less suspicion, and maybe four (4) if there is a 4 greater to be -- degree of suspicion about the case. 5 But I think there has to be a structure as 6 to who is giving the information to the pathologist and 7 that anecdotes are not going to come into that and 8 speculation by the police, for example, by people who 9 might come in during the middle of the process and say, 10 Oh, have you heard this bit of news? And that does 11 happen. 12 So I think that is of -- I think that's of 13 significant concern and one -- there is an opportunity 14 like this, through this Inquiry, to sharpen the focus on 15 communication all around; I think that that's a very 16 important issue. 17 There's a couple of things that are 18 ancillary to this, and maybe I can have a little license 19 to discuss that. 20 One (1) is the sense of advocacy that may 21 develop as a result of that association. And it has been 22 said, in fact, by somebody in this room -- and I thought 23 it was an astute comment in the media -- that forensic 24 pathologists have to learn about their relationships with 25 the Crown and the police. And I'll leave that statement

117

1 at that. And I think there's a great deal to it. 2 I think it has to do with the training of 3 the forensic pathologist and in -- and how he sees himself 4 fitting into the situation. So in one (1) respect, the 5 forensic pathologist could be actually employed directly 6 through the Justice Department, which is the case in the 7 Province of Alberta. 8 On the other situation, you could have a 9 substantial distance between the forensic pathologist and 10 authority by stationing him in a university background -- 11 in a university situation, rather. 12 But I think that the Commission has to 13 really think about those issues, and I won't say anything 14 more. 15 MR. MARK SANDLER: Professor Cra -- I'm 16 sorry. Professor Crane, we know from the earlier comments 17 that -- that you made to the Commissioner that one (1) 18 thing you feel very strongly about here is memorialising 19 whatever is said in that room. 20 Any other comments that you'd like to make 21 about this issue? Should there be a filter of information 22 from you? 23 DR. JACK CRANE: I think filtering 24 information can be dangerous, and -- and as Dr. Butt said, 25 what you don't want to do is not be provided with some

118

1 information at the time of the autopsy, and then when 2 you're standing up in the witness box then be told 3 something else that was -- that was crucial that -- that 4 you should have known about. So, I -- I think it is 5 important. 6 I think, as far as the police are 7 concerned, they may not necessarily know all the 8 information that the pathologist requires; I mean, there 9 may be subtle things that can be important. 10 And we get rounded by giving the police a 11 infant death protocol form stating the sort of information 12 that we need to know; things like the -- who -- who's in 13 the family, how many other children there are. Things 14 like the medical history so that they know to go on and 15 inquire about it -- the medical history. The sleeping 16 arrangements. 17 COMMISSIONER STEPHEN GOUDGE: When do you 18 do that? 19 DR. JACK CRANE: Well, when it -- 20 COMMISSIONER STEPHEN GOUDGE: Case by 21 case, or is there a -- 22 DR. JACK CRANE: They have to do it for 23 every death of a child under two (2) years of age. The 24 police have those forms and they have to complete them for 25 every case. So, that's quite useful because we have a lot

119

1 of police coming to autopsies. 2 They may not know that it's important 3 whether the mother and father smoke or not. They're 4 instructed to take the temperature of the bedroom that the 5 child is in. So information like that; they know what to 6 collect for us. 7 MR. MARK SANDLER: All right. 8 COMMISSIONER STEPHEN GOUDGE: Do you have 9 any views on how the inf -- the communications in the 10 autopsy room are best memorialized? 11 DR. JACK CRANE: Well, the way that I do 12 it is that I sit down with the police officer and simply 13 write down what he tells me. So I sit down, I take a 14 history, and that is there for everyone to see. 15 And if -- for example, if it comes to 16 court, and I'm asked, Well, what information were you 17 told? The information is there, written down; that's what 18 I was told. 19 COMMISSIONER STEPHEN GOUDGE: What about 20 videotaping? 21 DR. JACK CRANE: I think videotaping an 22 autopsy can have some benefits, but I think it's only 23 limited benefit. First of all, I -- I don't think there 24 should be sound to the taping. Lots of people say things 25 in the autopsy that -- the language sometimes can be

120

1 unrepeatable. 2 But the -- the only advantage, I think, of 3 video is whether something is done or whether it's not 4 done. And, to my mind, it's often unnecessary because if 5 I do something -- for example, if I take a sample of 6 something or I take a swab, that's recorded. That's in my 7 report. So there's no question that people are scratching 8 their heads to say, Well, did he do that or did he not do 9 that? 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Professor Milroy, what 13 do you think about videotaping? I know you hold certain 14 views on that. 15 DR. CHRISTOPHER MILROY: Well, we actually 16 have put a -- we've just built a new forensic suite, so 17 the forensic suite's being built around the -- England and 18 Whales at great expense. And one (1) of the thi -- 19 features we have in them is a video camera with the 20 ability to video, but not audio sound the autopsy because 21 it shows procedure. And then that, combined with 22 photographs. We -- and we're just, if you like, in the 23 experimental stages of -- of using that. 24 The problem with audio is that it probably 25 stops the free flow of thinking. The police may want to

121

1 ask you something, but if they knew that it was going to 2 be recorded, they may be reluctant to bec -- because you 3 may -- they may have a -- a question that you -- you are 4 rather dismissive of, and they -- they -- and so on, and 5 they want to put their -- and it also has to be said that 6 there are -- there is a certain type of humour within the 7 mortuary as a coping mechanism that people may not wish 8 others to hear. It's not meant to be disrespectful, but 9 it -- that's just what happens. 10 So I -- I don't -- I -- I think that 11 videoing can have -- may well have a place. Otherwise, I 12 do what Professor Crane does. I write down what the 13 police tell me at the start of an examination. And you 14 don't always know what's going to be relevant information, 15 so I don't see how you can filter it. So -- 16 COMMISSIONER STEPHEN GOUDGE: Although you 17 would have a stage at the beginning where you took the 18 history? 19 DR. CHRISTOPHER MILROY: We sit down with 20 the senior police officer -- and by "senior" I mean, often 21 the rank of superintendent -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. CHRISTOPHER MILROY: -- who will sit 24 down with you -- 25 COMMISSIONER STEPHEN GOUDGE: That is the

122

1 structured communication that Dr. Butt was talking about? 2 DR. CHRISTOPHER MILROY: Yeah. And he 3 sits down and says, well, this is what we know. This is a 4 thirty-five (35) year old male who's -- and then, you 5 know, and we've got some antecedent history and as far as 6 we know he's been found dead, last seen alive at... 7 COMMISSIONER STEPHEN GOUDGE: Right. What 8 about the less formal communication that takes place 9 during the actual autopsy? No record made of that? 10 DR. CHRISTOPHER MILROY: No, there -- 11 there doesn't tend to be a record. This is -- but 12 obviously, it's your examin -- 13 COMMISSIONER STEPHEN GOUDGE: Is that a 14 negative, or is that simply -- would that be going further 15 than is necessary? 16 DR. CHRISTOPHER MILROY: I think it's just 17 further than is necessary. You can't record every single 18 thing that's going on. But what the pathologist is doing 19 -- remembering it's his autopsy, so to speak -- is he is - 20 - there is a flow backward and forwards. 21 Oh, look, there's a stab wound, oh, look, 22 there's a gunshot wound, have a look here, this means he's 23 bled out. 24 But at the end of it, you then debrief the 25 senior investigating officers to what you found at the

123

1 autopsy. 2 COMMISSIONER STEPHEN GOUDGE: And that 3 would be recorded? 4 DR. CHRISTOPHER MILROY: So -- and that is 5 recorded, yes. He writes that down. So you do have a re 6 -- you have a recording process before, and you have a 7 recording process after. And in the meantime, the 8 pathologist is making his notes of the examination. 9 COMMISSIONER STEPHEN GOUDGE: Thank you. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: All right. I'm going 13 to stay with you for a moment, Professor Milroy, and the 14 move across the table. What role, if any, should a 15 suspected child abuse and neglect team -- known at the 16 Hospital for Sick Children here is the SCAN Team -- play 17 in assisting the pathologist? Should it serve in an 18 assessment capacity, in an investigative capacity, neither 19 or both? 20 DR. CHRISTOPHER MILROY: Well, I think 21 that, for the reasons already expressed, one has to be 22 careful about clinicians getting involved in deaths of 23 children in terms of interpreting post-mortem findings 24 because they are different. 25 And also, the dif -- one (1) of the

124

1 differences that forensic pathologists are trained in 2 injury examination in the way that really no other 3 speciality is. The other con -- so, I mean clini -- 4 clinicians may have a very important role to play in terms 5 of what the symptoms of a child will be expressing, how a 6 child might be behaving, what activities the child have so 7 that there clearly is a role. 8 The other concern that has been expressed 9 about some of the people who do child protection -- 10 clinical child protection work -- is that they see 11 themselves as advocates for the child, and once the -- one 12 (1) sense that's clearly laudable. 13 It may bias them in terms of objectivity. 14 They may come to a conclusion that the child has been 15 abused; they will -- they will not then be as objective as 16 they may have been. 17 Now that -- that is a criticism; of course, 18 you can laugh at the pathologist, as well, but I've 19 certainly heard it levelled at -- sometimes at these 20 groups that actually term themselves, "Advocates for the 21 Child. 22 MR. MARK SANDLER: All right. If we could 23 turn to page 9 of the Kennedy report because this seems a 24 natural segue to ask you about child protection 25 proceedings. And in the Kennedy report, it says -- it

125

1 says it in a big way; that's a big screen: 2 "Nor are doctors sufficiently trained in 3 the differences between the Courts -- " 4 And we're talking about the differences 5 between criminal and Family Courts. 6 "The evidence that the practitioner 7 gives in the Family Courts is subject to 8 a different standard of proof and has 9 given subject to an injunction about 10 protecting the paramount interests of 11 the child. The situation in the 12 Criminal Courts is quite different 13 because liberty is at stake and the 14 preferred truth must be that the person 15 on trial is not guilty; this is the 16 presumption of innocence. However, 17 doctors who spend most of their time 18 giving expert testimony in Family Courts 19 may not be conscious of a need to make a 20 transition. Unfortunately, textbooks, 21 professional journals, specialist 22 training syllabuses, and other material 23 often provide insufficient guidance on 24 these points." 25 Professor Crane, I'll -- I'll start with

126

1 you. Should there be more latitude on the part of a 2 forensic pathologist in expressing opinions in a child 3 protection proceeding than opinions expressed in a 4 criminal proceeding? 5 DR. JACK CRANE: My own view is that I 6 don't think the opinions are -- are going to differ. If 7 we're interpreting an injury, and we're asked how we think 8 that injury has been caused or what are the possible 9 mechanisms, I don't think that our opinion on that is -- 10 is going to change depending on whether it's a child 11 persec -- protection issue or whether it's -- it's in the 12 Criminal Court. 13 But clearly the difference might be as to 14 the degree of certainty we are, and it may be that we may 15 not be as certain about the causation of an injury, and we 16 may have to say that -- certainly in a criminal case -- 17 we're not sure enough to say that it was caused in a 18 particular way. But it may be that in a child protection 19 case we may say that, on the balance of probabilities, 20 this injury is more likely to have been non-acci -- 21 accidentally sustained than accidentally sustained. 22 COMMISSIONER STEPHEN GOUDGE: That gets us 23 back to the language -- 24 DR. JACK CRANE: Correct. 25 COMMISSIONER STEPHEN GOUDGE: -- used for

127

1 communicating the certainty of view and -- 2 DR. JACK CRANE: Tha -- that's right. 3 COMMISSIONER STEPHEN GOUDGE: -- we talked 4 earlier in the week about whether one uses phrases like 5 "beyond a reasonable doubt" -- 6 DR. JACK CRANE: Yes. 7 COMMISSIONER STEPHEN GOUDGE: -- or "on 8 the balance of probabilities". Frankly, I took the three 9 (3) of you, largely, to agree that one ought not to use 10 either, but should use the kind of language that forensic 11 people use that Dr. Milroy spoke to. 12 DR. JACK CRANE: No. I think it's -- it's 13 difficult because you're in a situation where the Court 14 wants to know how -- how certain you are and -- 15 COMMISSIONER STEPHEN GOUDGE: Using the 16 Court's language. 17 DR. JACK CRANE: They will use that 18 language to you. They will say to you, How sure are you; 19 that's -- that's often the difficulty, so... And again, 20 it's a -- it's a -- 21 COMMISSIONER STEPHEN GOUDGE: So what 22 should the pathologist do? 23 DR. JACK CRANE: Well, I -- I think it's a 24 judgment call. I think he has to decide in his own mind 25 how sure he is of -- of that opinion.

128

1 COMMISSIONER STEPHEN GOUDGE: Well, but 2 using the language of the Court's standards, that is, if 3 it's a Criminal Court, Judge alone, beyond a reasonable 4 doubt? 5 DR. JACK CRANE: In -- in the Criminal 6 Courts, you know, I will say one can say that one's sure 7 or reasonably sure or -- I think we can use that. Not 8 necessarily using the legal term or the -- the lawyer's 9 term. 10 COMMISSIONER STEPHEN GOUDGE: Dr. Milroy, 11 you look like you want to say something? 12 DR. CHRISTOPHER MILROY: No -- well of 13 course -- well the thing is, that in English law, "sure" 14 has to say that "sure" -- 15 COMMISSIONER STEPHEN GOUDGE: "Sure" has 16 replaced "beyond a reasonable doubt"? 17 DR. CHRISTOPHER MILROY: -- has replaced 18 "beyond a reasonable doubt" anyway, so you've got to be -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. CHRISTOPHER MILROY: -- it is both a 21 legal and a non-legal term. I was just going to make the 22 point that you obviously shouldn't -- you shouldn't temper 23 your -- your evidence to the tribunal. 24 I actually think that -- I mean, that 25 they're not correct by saying doctors are not familiar

129

1 with the family in the criminal courts if they're a 2 forensic pathologist, 'cause it's part of our training to 3 understand the differences -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. CHRISTOPHER MILROY: -- in the legal 6 courts we work in. But there is a difference in the 7 family courts, in that we are very specifically asked by 8 the lawyers, can you say on the balance of probability, 9 and we're often asked that. 10 Whereas we're not asked that same question 11 in the criminal courts. And in any case as I've already 12 said, it's always my understanding, it's the case -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. CHRISTOPHER MILROY: -- that has to be 15 proven beyond a reasonable doubt, not any one (1) 16 individual piece of evidence. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: So -- so if I were to 20 put a proposition just for -- for your consideration, and 21 that is that the -- that the nature of the evidence or 22 level of certainty might be expressed precisely the same 23 way -- whether it's in a criminal proceeding or in a civil 24 or family proceeding, the difference may well be the -- 25 the consequences of the expression of that opinion having

130

1 regard to the different burdens of proof in the criminal 2 as opposed to the civil? 3 DR. CHRISTOPHER MILROY: Well, I mean, 4 it's an example if you have multiple healing rib 5 fractures. If you're asked, Do you believe on the balance 6 of probability that these have been -- these are evidence 7 of abuse? 8 You may well say in the family proceedings, 9 on the balance of probability, yes, because we have no 10 other explanation proffered. And the consequences of 11 which will then flow that the judge will make a judgment, 12 if you like, of abuse and with the consequences that may 13 flow from that. 14 Frankly, I have never been asked that 15 question in a criminal case, because no lawyer is going to 16 say, Well do you think on the balance of probability? 17 Well, because it doesn't -- 18 MR. MARK SANDLER: No lawyer on either 19 side would ask that question. 20 DR. CHRISTOPHER MILROY: No -- no lawyer 21 on either side would ask, because it doesn't help them one 22 (1) way or the other. It's just not a question I've ever 23 been asked in a criminal case. 24 COMMISSIONER STEPHEN GOUDGE: Are you 25 comfortable doing it in a family case? I mean, we had the

131

1 debate earlier in the week about the difficulty of 2 translating the kinds of articulations you were using, 3 into percentages. 4 DR. CHRISTOPHER MILROY: I -- I think it's 5 difficult. But I think that there are cases where you can 6 express that opinion. If you have a -- I mean, if you are 7 saying, for example, if there was a -- if there was a burn 8 like in Jenna, can you conceive of it being anything other 9 then a deliberately inflicted injury? 10 And you say, No, I cannot conceive of it 11 being anything other then deliberate. You are really 12 giving a -- you are giving evidence beyond balance of 13 probability, aren't you? 14 COMMISSIONER STEPHEN GOUDGE: So in a case 15 like that, what you would be thinking to yourself is, 16 whatever the percentage I actually am thinking in my own 17 mind, it's greater then 50 percent plus one (1)? 18 DR. CHRISTOPHER MILROY: Yes, and we get 19 questions directly put to us by the lawyers in -- in our 20 expert meetings. Do you on the balance of probability? 21 Do you on the -- and those have been agreed by the court. 22 So we are specifically asked to make -- 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 DR. CHRISTOPHER MILROY: But sometimes I 25 will say, I cannot make a determination one (1) way or the

132

1 other. 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: All right. I'm going 5 to switch and ask you one (1) more topic, and frankly one 6 could -- one could literally engage you for a week on some 7 of the systemic issues that -- that are involved, but I 8 want to ask you about one (1) -- one (1) final area, and 9 then invite each of you to comment on any recommendations 10 that you might like the Commissioner to consider. 11 And the last area has to do with oversight. 12 You've described to the Commissioner your support for -- 13 for peer review, both internal and, at times, external. 14 You've outlined your support for the disciplinary 15 processes that exist in England, Wales, and Northern 16 Ireland, to -- to address some of the issues that have 17 arisen there. 18 I want to ask you about provisions that 19 exist in the Crown Disclosure Manual in England and Wales. 20 And the Crown Disclosure Manual is at Volume 2 of the 21 systemic materials, at Tab 1, Commissioner. 22 And there's some interesting concepts that 23 arise here. And -- and to give this a little bit of a 24 context, you'll recall from -- from several of the 25 overview reports, that -- that they reflect that -- that

133

1 there was a time when -- when in a proceeding, which is 2 not one (1) of them that we're dealing with as part of the 3 twenty (20), a -- an issue arose in the court as to the 4 extent to which Dr. Smith's involvement in other files 5 should be put before the court and utilized as affecting 6 his credibility. 7 And -- and the Crown Disclosure Manual has 8 something to say about -- about some of these issues, so I 9 want to ask you about them. We have here: 10 "Investigators fulfill the duty to 11 pursue all reasonable lines of inquiry 12 by requiring expert witnesses, whose 13 evidence is being relied upon, to reveal 14 any information that might had adversely 15 affect credibility and/or competence as 16 an expert witness. Where an expert 17 fails to reveal information that 18 adversely affects credibility or 19 competence, this may lead to a 20 prosecution being halted or delayed, 21 adverse judicial comment, convictions 22 being found to be unsafe on appeal, 23 professional embarrassment, disciplinary 24 proceedings, or civil actions by an 25 accused. By way of example only,

134

1 information that might undermine the 2 competence and/or credibility of an 3 expert witness might be the discovery 4 the expert hasn't used established 5 procedures; scientific theories have 6 been applied -- that have been applied 7 had been discredited in the mainstream; 8 the expert has been partial on the 9 information and material that has been 10 taken into account in arriving at an 11 opinion." 12 Then we've got the expert's self-certificate. 13 "The expert instructed should submit to 14 the investigating officer or disclosure 15 officer a completed self-certificate 16 revealing whether or not there is 17 information which may be capable of 18 adversely..." 19 And if we could go on to the next page: 20 "...affecting his or her competence 21 and/or credibility as an expert. This 22 should be submitted to the investigating 23 or disclosure officer as soon as the 24 expert is instructed." 25 And if we could -- if we could go to the next page,

135

1 please. There's also a provision for -- for bad 2 character, and then unresolved complaints and disciplinary 3 proceedings: 4 "Complaints about expert witnesses or 5 disciplinary matters that are under 6 investigation and have not yet been 7 concluded should be revealed by the 8 disclosure officer to the prosecutor. 9 The information that such unresolved 10 allegations reveal may be relevant and 11 the prosecutor should consider whether 12 it satisfies the disclosure test." 13 And if we can go to the -- the next page, please. Adverse 14 judicial findings: 15 "An adverse judicial finding is a 16 finding by a civil or criminal court, 17 expressly by or by inevitable inference, 18 that an expert witness has knowingly, 19 whether on oath or otherwise, mislead 20 the court. With regard to experts, this 21 definition may be extended to include 22 unintentional misleading of the court, 23 i.e, incompetence. It's the duty of any 24 advocate representing the CPS [and 25 that's the Crown prosecution service] to

136

1 record an adverse judicial finding in 2 full. A transcript should be requested 3 whenever available. Any adverse 4 judicial finding against an expert 5 witness should be reported by the 6 advocate to the CPS, who will pass the 7 information to CPS policy directorate. 8 There's no mechanism for the court to 9 rescind and adverse judicial finding; 10 however, if subsequent information comes 11 to light that casts doubt on the 12 finding, this should be reflected in the 13 certificate and this will be a factor to 14 be taken into account by the prosecutor 15 when deciding whether applying the 16 disclosure test to disclose the 17 information. When information is 18 received that casts doubt over the 19 reliability of an expert witness and/or 20 the expert's technical area of 21 expertise, consideration should be given 22 to whether further disclosure is needed 23 in current and past cases involving the 24 expert." 25 Professor Milroy, how, if at all, have

137

1 these provisions been utilized in England and Wales? 2 DR. CHRISTOPHER MILROY: Well, on a -- as 3 I already said, we don't produce a report, we produce a 4 criminal justice statement. So we -- we make a 5 declaration in that now that we have read the disclosure 6 manual. It's one (1) of the things, and then there's a qu 7 -- we'd say that -- and then we'd provide -- and we're 8 providing objective on biassed evidence for the court not 9 for the side that causes. 10 So those -- those are part and parcel of 11 the -- of the behaviour that we have to. What one (1) 12 interesting thing is, of course, that -- what is doesn't 13 quite take account is that sometimes doing post-mortem 14 examinations, you started for the coroner before it's 15 necessarily a -- a criminal proceeding. 16 And you produce your report before you've 17 technically been instructed as an expert. But as far as - 18 - I think that obviously the -- the reason behind is that 19 there have been adverse court judgments, and obviously 20 there are then criminal convictions that an expert might 21 have that would be relevant such as a conviction for 22 dishonesty or some other conviction that cause them to 23 doubt their probity. 24 MR. MARK SANDLER: Is there any 25 provision in the British Isles that imposes an obligation

138

1 upon a forensic pathologist to disclose a lack of 2 competence or a lack of honesty or skill or training on 3 the part of another forensic pathologist? 4 DR. CHRISTOPHER MILROY: That, well, if 5 you -- certainly general medical council rules state that 6 if we believe that any medical practitioner is not 7 performing to the correct standard, then -- or you find 8 something that questions their probity, then you are duty 9 bound to refer it to the appropriate authorities. 10 That might be the General Medical Council, 11 that might be the Home Office. And that is -- that is why 12 Professor Crane and myself made the complaint that we did. 13 And if there are other cases that come up, we're duty 14 bound to it. 15 For -- and it flows into things like you 16 can't write references for people to get rid of them if 17 you like -- that was said to be the practice in the past - 18 - where you write a good reference. That is absolutely 19 forbidden now. 20 It -- it happened. And all these questions 21 of probity are now dealt with at various levels. 22 MR. MARK SANDLER: Now in three (3) 23 minutes each -- and I apologize for the brevity -- I'm 24 going to call upon each of you to suggest any 25 recommendations that you'd like the Commissioner to

139

1 consider. Dr. Butt...? 2 DR. JOHN BUTT: I think the principal 3 thing that I would leave with the Commissioner is the 4 lines of authority between the forensic pathologist and 5 the coroner or his other employer, which could be a 6 hospital, but in particular here, the Office of the Chief 7 Coroner in the province of Ontario; historically in that 8 office, beginning -- and I have a reasonable knowledge 9 about this first hand -- going back to about 1968, sir. 10 And there was an independent of the 11 forensic pathologist for a substantial period of time. I 12 think one (1) of the things that begot change was the 13 development of the Drew Building, and its location off 14 Young Street, and a structure that allowed for a Chief 15 Coroner, a Chief Forensic Pathologist, and the head of the 16 laboratory service all on a line as individuals. 17 And I would suggest that that be re- 18 established, and that there not be a direct reporting 19 relationship between the Chief Forensic Pathologist and 20 the Chief Coroner. 21 There are other things that can be said 22 about it in terms of reporting issues, but I think since 23 we're narrowed by time here, that's it. 24 MR. MARK SANDLER: Professor Crane...? 25 DR. JACK CRANE: One (1) of the things

140

1 that was developed in the United Kingdom, Commissioner, 2 was a forensic pathology council. And that includes all 3 parts of the United Kingdom. 4 We have representatives from England and 5 Wales; from Scotland and from Northern Ireland. We have 6 representatives on that council; people from the Royal 7 College of Pathologists, police representation, 8 representation from the coroners, and from the Crown 9 prosecution service. 10 And -- and that is, if you like, a 11 strategic body overseeing and reviewing forensic 12 pathology, looking at strategic decisions as to how 13 forensic pathology should be delivered. Not on a local 14 level, but overall, perhaps high policy can be developed 15 to, perhaps, coordinate so that we're all, if you like, 16 singing from the same hymn sheet; all doing the same 17 things. 18 And issues that may arise, these can be 19 discussed. 20 MR. MARK SANDLER: All right. Thank you. 21 Professor Milroy...? 22 DR. CHRISTOPHER MILROY: I echo what Dr. 23 Butt has said. I think that there should be a forensic 24 pathology service for Ontario that is separate from the 25 coronial service.

141

1 Forensic Pathology is now a post-graduate 2 discipline with its own training and standards, and it 3 cannot be overseen by the coroners. And I think that 4 we've had illustrations of that where non-pathology 5 coroner has agreed with opinions that have subsequently 6 shown to be wrong. 7 I think you should have -- look to having a 8 Chief Forensic Pathologist with regional deputies. And I 9 -- in fact, I believe that the most appropriate people to 10 determine who should do an autopsy once the decision has 11 been taken to do the autopsy, should be forensic 12 pathologists. 13 And they can decide whether it -- this can 14 be done by a forensic pathologist or if it's one (1) that 15 can be done by an anatomic pathologist. And I do think 16 that there should be in -- in those -- in that regional 17 structure, there should be more then one (1) unit in -- 18 that conducts pediatric forensic pathology to prevent 19 institutional bias. 20 MR. MARK SANDLER: All right. I should 21 say to you, gentlemen, that although you were able to 22 provide several recommendations in a very brief period of 23 time, the Commission would welcome, through the course of 24 its duration, any other recommendations that would come to 25 your mind to be communicated to us and distributed to the

142

1 parties and we -- I'm sure the Commissioner would consider 2 those and the ones that you've made here, very carefully, 3 in the course of our work. 4 Thank you very much. That's my 5 examination-in-chief, Commissioner. 6 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 7 Sandler, and thank you gentlemen. I think the sensible 8 thing to do is to break for lunch and to resume at two (2) 9 o'clock and we'll begin -- I think Mr. Centa has handed 10 out a cross-examination schedule -- and we are going to 11 begin with you, Ms. Langford, I think. 12 MS. JANE LANGFORD: Yes. 13 COMMISSIONER STEPHEN GOUDGE: And you will 14 see when you get it that I have allocated the times as I 15 think the issues reflect it best. Ms. Langford, you will 16 have the four (4) hours and... 17 Has this been distributed? Then why don't 18 I simply read it to you if I can make out the -- 19 MR. MARK SANDLER: Well, Commissioner, I 20 should say we do have copies of it, and we can distribute 21 it at the break because Ms. Langford will be the entire 22 afternoon. So -- so I think we can -- 23 COMMISSIONER STEPHEN GOUDGE: Yes. Nobody 24 else need worry until tomorrow, and I think we've made the 25 order to accommodate you, Mr. Carter --

143

1 MR. WILLIAM CARTER: Thank you. 2 COMMISSIONER STEPHEN GOUDGE: -- I know 3 you have... 4 So we will rise now until two (2) o'clock 5 and we'll come back and commence with you, Ms. Langford. 6 7 --- Upon recessing at 12:40 p.m. 8 --- Upon resuming at 2:02 p.m. 9 10 THE REGISTRAR: All rise. Please be 11 seated. 12 COMMISSIONER STEPHEN GOUDGE: Good 13 afternoon. Ms. Langford, whenever you are ready. 14 15 CROSS-EXAMINATION BY MS. JANE LANGFORD: 16 MS. JANE LANGFORD: Thank you, Mr. 17 Commissioner. 18 Good afternoon gentlemen. 19 DR. CHRISTOPHER MILROY: Good afternoon. 20 DR. JACK CRANE: Good afternoon. 21 MS. JANE LANGFORD: We've greeted one 22 another in the hallways, but for the record my name is 23 Jane Langford and I am one (1) of the lawyers for Dr. 24 Smith. And I want to thank you for your insight in these 25 difficult cases.

144

1 You will be relieved to learn that I do not 2 intend to take you, line by line, case by case, through 3 your opinions in the twenty (20) cases in this matter. 4 The mandate of this Inquiry is systemic, and my questions 5 will focus on the systemic issues that arose from your 6 testimony over the last few days. 7 Now Mr. Sandler also did a lot of my work 8 for me so I hope I won't re -- go over that stuff with you 9 but I will ask you to confine yourself to commenting on 10 the questions that I put to you directly, and I will, 11 hopefully, be able to sit down more quickly that way. 12 Is that fair? 13 DR. JACK CRANE: Yes. 14 MS. JANE LANGFORD: Dr. Butt, I want to 15 start by talking a little bit about the style and format 16 of post-mortem reports. 17 DR. JOHN BUTT: Yes. 18 MS. JANE LANGFORD: And I want to pick up 19 on your comments about Form 12. We will no doubt be 20 hearing recommendations about the content and style of 21 post-mortem reports. 22 And I noted in your evidence -- that you 23 quite fairly pointed out -- that the form of the post- 24 mortem report under the Coroners Act was a mandatory 25 requirement as far as you understood it; for pathologists

145

1 who perform post-mortems under the Coroners Act? 2 DR. JOHN BUTT: That's correct. 3 MS. JANE LANGFORD: And I take it by 4 mandatory, what you understood by that, is that is a 5 legislative requirement for pathologists in that context? 6 DR. JOHN BUTT: I believe that to be the 7 case. 8 MS. JANE LANGFORD: And we've heard 9 comments and suggestions about the minimalist approach or 10 style to post-mortem reports. 11 I take it, sir, that you would agree with 12 me that this is not simply a question of style, rather 13 this is a style dictated by the form? 14 DR. JOHN BUTT: Yes, I think that it is a 15 style dictated by the form. I understand the question. 16 MS. JANE LANGFORD: And I think your words 17 were that the form was quite strict? 18 DR. JOHN BUTT: Well, it's -- it appears 19 to be confining in terms of captions. It's -- you know, I 20 don't -- I don't want to embellish the point, but it it 21 seems to be quite strict in what it asks for. 22 MS. JANE LANGFORD: And I think to -- to 23 be fair to you, what you said was that the information 24 requested of the pathologists is listed there, and that is 25 what, in fact, the pathologist has asked for.

146

1 DR. JOHN BUTT: Yes. 2 MS. JANE LANGFORD: All right. Now -- 3 COMMISSIONER STEPHEN GOUDGE: Do you know 4 -- sorry, Ms. Langford. Do you know how old it is, Dr. 5 Butt? 6 DR. JOHN BUTT: I can't say, Commissioner, 7 how old it is. I -- 8 COMMISSIONER STEPHEN GOUDGE: Sounds like 9 you and it had long familiarity. 10 DR. JOHN BUTT: I -- I -- I'm sure that 11 it's been there for twenty (20) years. 12 COMMISSIONER STEPHEN GOUDGE: Thank you. 13 Sorry. 14 15 CONTINUED BY MS. JANE LANGFORD: 16 MS. JANE LANGFORD: That's fair enough. 17 Now we -- before we go into recommendations for the 18 future, I think it's fair that we look at some of the 19 post-mortem reports, which I don't think have been in -- 20 in the evidence at all in this Inquiry to date. 21 So I want to go through three (3) post- 22 mortem reports with you, and I'll point out right at the 23 outset that none of these reports are, in fact, Dr. 24 Smith's post-mortem reports. 25 So I'd like to take you first to Tab 27 of

147

1 your -- I think it's the documents referred to by Parties 2 With Standing in cross-examination. And it's document 3 number PFP001982. 4 DR. JOHN BUTT: I have the document, and I 5 see it on the screen. 6 MS. JANE LANGFORD: Fair enough. And to 7 be fair to you, Dr. Butt, this is not, I believe, a post- 8 mortem report that you've seen before? 9 DR. JOHN BUTT: I have not seen this 10 before. 11 MS. JANE LANGFORD: All right. And this 12 is the post-mortem report for one (1) of the cases -- 13 Dustin. 14 DR. JOHN BUTT: Yes. 15 MS. JANE LANGFORD: And this is a post- 16 mortem report of -- dated November 1992? 17 DR. JOHN BUTT: Yes. 18 MS. JANE LANGFORD: All right. Now I want 19 to take you through this post-mortem report, and part of 20 the reason I'm taking you to a report that you have not 21 seen before, sir, is that we've talked a lot about 22 transparency of post-mortem reports, and what another 23 reader ought to be able to -- to tell from a post-mortem 24 report. 25 DR. JOHN BUTT: Yes.

148

1 MS. JANE LANGFORD: So first of all, 2 looking at page 1, you'll agree with me that the only 3 information requested of the pathologist, with respect to 4 history, is the time and place of death, the time the 5 examination commenced, and the coroner who issued the 6 warrant? 7 DR. JOHN BUTT: Yes, I agree. 8 MS. JANE LANGFORD: And you'd agree with 9 me then, that by reading this report, we don't know the 10 history that was provided to the pathologist by either the 11 coroner or the police? 12 DR. JOHN BUTT: I agree with that. 13 MS. JANE LANGFORD: And if you note under 14 section 2, that there's an additional piece of 15 information, and that is simply which police officer 16 identified the body to the pathologist? 17 DR. JOHN BUTT: Pardon me. That's 18 correct. 19 MS. JANE LANGFORD: All right. And then 20 Number 3, the pathologist is asked to describe the 21 external examination? 22 DR. JOHN BUTT: Yes. 23 MS. JANE LANGFORD: Is that correct? 24 DR. JOHN BUTT: Yes, it is. 25 MS. JANE LANGFORD: And then if you turn

149

1 to the next page, the pathologist is asked to describe the 2 internal examination? 3 DR. JOHN BUTT: Yes, that's correct. 4 MS. JANE LANGFORD: And then that goes 5 along to page 4. The pathologist is invited to, in brief, 6 detail the microscopic and laboratory findings? 7 DR. JOHN BUTT: Yes, at the foot of page 8 4. 9 MS. JANE LANGFORD: And at the top of page 10 5, -- or sorry, in the centre of page 5, the pathologist 11 has again requested to, in brief, detail the x-ray 12 findings, if any. 13 DR. JOHN BUTT: Yes. 14 MS. JANE LANGFORD: All right. 15 DR. JOHN BUTT: That's correct. 16 MS. JANE LANGFORD: And I take it you 17 would agree with me that you don't know the exhibits that 18 were taken from this post-mortem by -- by what you've seen 19 so far in this document? 20 DR. JOHN BUTT: That's correct, one does 21 not know that. 22 MS. JANE LANGFORD: And you don't know 23 which photographs or how many photographs were taken? 24 DR. JOHN BUTT: I have no idea from this 25 report.

150

1 MS. JANE LANGFORD: And you don't have a 2 complete list of the histologic sections? 3 DR. JOHN BUTT: That's correct. 4 MS. JANE LANGFORD: And I take it you 5 would agree that we don't know by this post-mortem report 6 whether the pathologist consulted with any other physician 7 during the course of the -- of the examination or prior to 8 the report being issued? 9 DR. JOHN BUTT: That's correct. 10 MS. JANE LANGFORD: And then if we turn to 11 num -- the Number 7 on page 5, you agree with me that the 12 pathologist is requested to detail the abnormal findings 13 in a summary fashion? 14 DR. JOHN BUTT: Yes, it's -- that's 15 correct. That's the last caption. 16 MS. JANE LANGFORD: And then turning to 17 page 6 for a moment. Point Number eight (8) entitled 18 "Cause of Death." 19 And here the pathologist is asked to 20 certify that the pathologist has examined the body, has 21 opened and examined the above-noted cavities and organs as 22 indicated, and to state "In my opinion the cause of death 23 was." 24 You agree with me that that's the only 25 opinion that the pathologist is invited to detail in this

151

1 report? 2 DR. JOHN BUTT: That's all it says, yes. 3 MS. JANE LANGFORD: And although we have 4 the pathologist's cause of death in this case stated, we 5 don't have any analysis or commentary or impressions from 6 that pathologist, do we? 7 DR. JOHN BUTT: There is nothing of that 8 sort, no. 9 MS. JANE LANGFORD: And to be fair to this 10 pathologist, we don't have those things because the report 11 doesn't invite that information? 12 DR. JOHN BUTT: That's likely the case, 13 yes. 14 MS. JANE LANGFORD: And we can't tell from 15 this post-mortem report, can we, what other key issues 16 were in -- in this death investigation? For example, 17 timing of injuries or time of death or whether or not 18 there was a sexual assault that was contemplated. We 19 don't know any of those things from this post-mortem 20 report. 21 DR. JOHN BUTT: In terms of the report 22 itself or in terms of the structure? 23 That's a question. 24 MS. JANE LANGFORD: That's fair enough, 25 sir. We don't know what the key issues that were

152

1 identified by the death investigation that became the 2 subject of -- of any kind of discussion or dispute in this 3 case by this post-mortem report? 4 DR. JOHN BUTT: Yes, I hesitate because 5 there is no opening for it, if that is your point. 6 MS. JANE LANGFORD: That's correct. 7 And I take it you would agree that we, of 8 course, don't see any relevant extracts from literature 9 that may be germane to the issue in this case? 10 DR. JOHN BUTT: That -- there is nothing 11 in the report, no. 12 MS. JANE LANGFORD: And there's no 13 academic qualifications or accreditations or experience 14 listed of the pathologist who's under -- who's performing 15 this cross -- this post-mortem examination? 16 DR. JOHN BUTT: In terms of his signature, 17 you mean? In connection with who he is? 18 MS. JANE LANGFORD: Correct. All we know 19 is the address of the pathologist. 20 DR. JOHN BUTT: And his name. 21 MS. JANE LANGFORD: And in this case 22 it's -- 23 DR. JOHN BUTT: But there are no 24 qualifications listed. 25 MS. JANE LANGFORD: Correct. And in this

153

1 case it's Dr. Nag. And this is Dr. Nag's post-mortem 2 report in the Dustin case. 3 Turning to Tab 26 of your binder, sir. 4 DR. JOHN BUTT: Yes. 5 MS. JANE LANGFORD: And that's PFP003199. 6 COMMISSIONER STEPHEN GOUDGE: Perhaps just 7 as you leave it, can I ask -- sorry, Ms. Langford, but I 8 take it from your earlier evidence, put against what has 9 just been elicited from you, this form is no longer 10 adequate? 11 DR. JOHN BUTT: I think the form, as it 12 stands, might be regarded at this point as an aide 13 memoire. 14 COMMISSIONER STEPHEN GOUDGE: What do you 15 mean by that? 16 DR. JOHN BUTT: If you kept it in the 17 mortuary and used it to remind yourself that there are 18 certain things that you should include in the -- in the 19 dictation that you're doing. But in terms of the 20 formality that the report suggests that you respond to it, 21 I think that the form is inadequate to the -- to the needs 22 of the pathologist and others that may -- 23 COMMISSIONER STEPHEN GOUDGE: -- coming to 24 the needs of the system? 25 DR. JOHN BUTT: Yes.

154

1 DR. CHRISTOPHER MILROY: Can -- 2 COMMISSIONER STEPHEN GOUDGE: Dr. 3 Milroy...? 4 DR. CHRISTOPHER MILROY: Well, I was just 5 going to say that a similar form existed in England. So 6 that -- 7 COMMISSIONER STEPHEN GOUDGE: You put that 8 in the past tense. 9 DR. CHRISTOPHER MILROY: Yes. Well, 10 because we don't -- it's just not fit for purpose. And it 11 -- when I first started in pathology, as a resident, that 12 was the sort of form that we would type up onto and it had 13 limited in -- information required for that -- for that 14 form, but certainly even for -- for example, for homicide 15 reports they were not being used; people just didn't use 16 them because they just weren't adequate. 17 So, a similar form exists; it's not fit for 18 purpose and we've moved away from -- from using them. 19 COMMISSIONER STEPHEN GOUDGE: Do you have 20 a form that you substitute? 21 DR. CHRISTOPHER MILROY: No, we just have 22 the -- we have a -- we just have a, I suppose, a template 23 on a -- on a computer document. You have to put it in -- 24 there are certain -- the only requirements we have to put 25 in is that we state that -- that it was performed for the

155

1 coroner, it cannot be released to a third party without 2 the coroner's permission, and there used to be, I think, a 3 declaration on them about whether there was a pacemaker or 4 not, and those were the only things that were specifically 5 required. 6 But because we didn't think they were fit 7 for purpose, we don't use them, but they were are very 8 common form and commonly used for medicolegal autopsies. 9 10 CONTINUED BY MS. JANE LANGFORD: 11 MS. JANE LANGFORD: So, Dr. Butt, before 12 we get to the inadequacies of these -- these post-mortem 13 reports -- 14 COMMISSIONER STEPHEN GOUDGE: Sorry, I 15 didn't mean to preempt you, Mr. Langford. 16 MS. JANE LANGFORD: No, that -- that's 17 okay. That's quite all right. 18 COMMISSIONER STEPHEN GOUDGE: I remember 19 what it was like when I was in your position. 20 21 CONTINUED BY MS. JANE LANGFORD: 22 MS. JANE LANGFORD: Yes. The report of 23 porst -- post-mortem up on the screen in front of you, 24 sir, is this is Valin's post-mortem examination. 25 DR. JOHN BUTT: Yes.

156

1 MS. JANE LANGFORD: And you've seen this 2 post-mortem report before? 3 DR. JOHN BUTT: I have, yes. 4 MS. JANE LANGFORD: This is the post- 5 mortem report of Dr. Rasaiah, who was the original 6 pathologist who conducted the post-mortem examination in 7 Valin's case. 8 DR. JOHN BUTT: That's correct, yes. 9 MS. JANE LANGFORD: All right. And I'll 10 just ask you to turn through the pages, and perhaps, Mr. 11 Registrar, you could just slowly go through page 1 through 12 to 5. 13 14 (BRIEF PAUSE) 15 16 MS. JANE LANGFORD: I'm glad you're way 17 ahead of me, sir. 18 COMMISSIONER STEPHEN GOUDGE: He's too 19 good for Mr. Sandler, as well, Ms. Langford, so... 20 21 CONTINUED BY MS. JANE LANGFORD: 22 MS. JANE LANGFORD: All right, so page 2 23 and then page 3, page 4, and page 5, and pausing there. 24 Perhaps if we could just see the Number 8, "Cause of 25 Death". This again, sir, is another case where the

157

1 pathologist is asked only his opinion with respect to the 2 cause of death itself? 3 DR. JOHN BUTT: That's correct, it's the 4 same prefacing comment as -- 5 MS. JANE LANGFORD: And in fact -- sorry. 6 DR. JOHN BUTT: It's the same prefacing 7 comment about the -- in my opinion, the cause of death 8 was. 9 MS. JANE LANGFORD: And in this case Dr. 10 Rasaiah has described that cause of death in five (5) 11 words. 12 DR. JOHN BUTT: That's correct. 13 MS. JANE LANGFORD: And we know from 14 evidence already heard at this Inquiry that the key issues 15 in this case included whether or not there was sexual 16 assault of Valin and what the time of death was. 17 And I take it you'd agree with me that 18 there's no analysis or comments by Dr. Rasaiah about those 19 issues in this report. 20 DR. JOHN BUTT: In terms of conclusions, 21 there is nothing. 22 MS. JANE LANGFORD: All right. And then 23 finally, sir, I'll take you to another post-mortem 24 report -- 25 COMMISSIONER STEPHEN GOUDGE: Just before

158

1 you do, Ms. Langford, does anything turn on this being 2 labelled a form 14, as opposed to a form, or were you 3 going to come to that? 4 5 CONTINUED BY MS. JANE LANGFORD: 6 MS. JANE LANGFORD: No, but thank you for 7 reminding me; I -- I should have said so. 8 Dr. Butt, you referred to form 12 and I'm - 9 - I'm fairly certain that it turned -- it went from form 10 12 and then a later version of the legislation it became 11 for -- form 14, and where I think it remains today, but is 12 that your understanding? 13 DR. JOHN BUTT: That's news to me. 14 MS. JANE LANGFORD: Okay. All right, 15 well, perhaps we will -- 16 COMMISSIONER STEPHEN GOUDGE: I assume 17 this is a matter of statutory record someplace. 18 MS. JANE LANGFORD: I -- I believe so. I 19 believe so. 20 COMMISSIONER STEPHEN GOUDGE: So, at some 21 point why doesn't somebody just tell me that? 22 MS. JANE LANGFORD: We'll clarify that, 23 sir. 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25

159

1 CONTINUED BY MS. JANE LANGFORD: 2 MS. JANE LANGFORD: So turning to your Tab 3 20 of your -- your own binder. 4 DR. JOHN BUTT: Yes. 5 MS. JANE LANGFORD: And that's PFP009911, 6 the post-mortem report of Baby F. 7 DR. JOHN BUTT: Yes. 8 MS. JANE LANGFORD: And this is again a 9 post-mortem report you have already seen, sir? 10 DR. JOHN BUTT: Yes, it is. 11 MS. JANE LANGFORD: And this is the post- 12 mortem report of Dr. Walsh, the original pathologist in 13 the Baby F case? 14 DR. JOHN BUTT: That is correct. 15 MS. JANE LANGFORD: And in this case you 16 testified, I believe, yesterday, sir, that a key 17 pathologic issue was whether or not the infant had lived a 18 separate existence from its mother? 19 DR. JOHN BUTT: That is a primary 20 pathological issue in this matter. 21 MS. JANE LANGFORD: One in which the 22 justice system was primarily interested in? 23 DR. JOHN BUTT: I would assume so. 24 MS. JANE LANGFORD: Okay. And if we look 25 at page 5 of -- well actually, why don't we do the same

160

1 thing and go through -- scroll through the pages one (1) 2 at a time. Page 3, page 4, page 5, and page 6. Oh, I'm 3 sorry, it must be on the bottom of page 5. 4 COMMISSIONER STEPHEN GOUDGE: It's on the 5 bottom of page 5. 6 7 CONTINUED BY MS. JANE LANGFORD: 8 MS. JANE LANGFORD: There it is. And so 9 you would agree with me, Dr. Butt, that under 8, cause of 10 death, there's no discussion or analysis of the kind we 11 saw in your medicolegal report on the issue of whether or 12 not Baby F had, indeed, a separate existence from her 13 mother? 14 DR. JOHN BUTT: There is no discussion of 15 that sort here, no. 16 MS. JANE LANGFORD: And there's no -- none 17 of the references to the literature that you cited in your 18 report on that issue? 19 DR. JOHN BUTT: That's correct. 20 MS. JANE LANGFORD: All right. Now, Dr. 21 Butt, would you agree with me that all of these reports 22 that I've taken to you, and indeed the reports that you've 23 seen of Dr. Smith's, are consistent with what you've 24 described as a -- a succinct, non-descriptive, non- 25 analytical, post-mortem report that was typical for

161

1 pathologists doing post-mortem reports in the 1990's? 2 DR. JOHN BUTT: Apparently in this system; 3 that is in the province of Ontario. I know that that was 4 not the case elsewhere. 5 MS. JANE LANGFORD: Fair enough. And so 6 when we heard evidence, and I suspect there may well be a 7 consensus on this issue, that this report may well not be 8 adequate. 9 And its inadequacies as you've pointed out, 10 are its limits to the analysis, the description, the 11 impressions of the pathologist. 12 If we were to make a recommendation for a 13 more fulsome post-mortem report of pathologists, you would 14 agree that that would be a substantial departure from the 15 form that was being used in the 1990's in Ontario? 16 DR. JOHN BUTT: Yes, I think that's a fair 17 statement. 18 MS. JANE LANGFORD: And in -- in fact, Dr. 19 Butt, what appears to be advocated, and I -- I saw it with 20 reference to the United Kingdom standards that are -- that 21 are being used today, what appears to be recommended is 22 something more akin to the medicolegal reports that you, 23 and Dr. Crane and Dr. Milroy issued in the Smith Review? 24 They're more of that style? 25 DR. JOHN BUTT: I would call that an open

162

1 -- more of an open-ended document in which the structure 2 is not nearly as paramount as it is here. There is some 3 need for the pathologist to have a style that goes before 4 the impressions. 5 That is to -- and most pathologists have 6 done enough autopsies that they complete this through -- 7 pardon me -- you know, they have a pattern that they use 8 to dictate the material, but the style is generally an 9 open-ended style. 10 There have been reports that have been, 11 somewhat, structured that are more -- much more open then 12 this form is. But, in general, I think the narrative form 13 of report as opposed to this pro-forma is not only a 14 better, but is probably a more current style. 15 MS. JANE LANGFORD: Fair enough. And your 16 reports and, indeed, Drs. Crane and Milroy's reports in 17 the Smith Review; they, for the most part, identified the 18 key pathological issues. They stated the opinions and 19 impressions of -- of each of you, and the basis for them. 20 And where appropriate, cited reference. 21 That's the kind of thing we see in a -- a 22 more narrative style medicolegal report? 23 DR. JOHN BUTT: Yes, particularly in a 24 report of -- of importance that -- that's so, yes. I'd -- 25 I make that distinction because there are a lot of routine

163

1 autopsies in which references really are not that 2 appropriate. 3 MS. JANE LANGFORD: When you say important 4 though, I take it you'd agree that a -- a report that was 5 in a criminally suspicious death would, by definition, 6 would be deemed important? 7 DR. JOHN BUTT: As much information as 8 possible is -- is desirable, as long as it's, you know, 9 pertinent. 10 MS. JANE LANGFORD: Okay. And just while 11 we're talking about your reports in the Smith review, I 12 take it, sir, you would agree with me that in addition to 13 having been given the post-mortem report of Dr. Smith, and 14 the tissue slides, and the photographs, and any other 15 material that was taken at the post-mortem exam, you were 16 also given any consul -- medical-legal consultation 17 reports that existed in each of the files? 18 DR. JOHN BUTT: To the best of my 19 recollection, that's the case, yes. 20 MS. JANE LANGFORD: All right. And just - 21 - just so that we -- I don't want to trick you into 22 answering that. Let's -- let's look at, for example, the 23 Valin's case, and if we could just turn to PFP004065, page 24 2. And you know what, I'm only going to go to one (1) 25 page, so I think if you --

164

1 DR. JOHN BUTT: Okay. 2 MS. JANE LANGFORD: -- follow on the 3 screen it would be easiest. 4 DR. JOHN BUTT: Yes, that's fine. 5 MS. JANE LANGFORD: And I'm looking 6 specifically at page 2, sir. 7 DR. JOHN BUTT: Yes, understood. 8 MS. JANE LANGFORD: This is a -- a list of 9 material upon which you relied when you conducted your 10 review and wrote your report in this case? 11 DR. JOHN BUTT: That's correct, yes. 12 MS. JANE LANGFORD: And if you look at 13 number 7, you received the report of James Ferris? 14 DR. JOHN BUTT: That's correct. 15 MS. JANE LANGFORD: And Dr. Ferris is a 16 pathologist, to the best of your knowledge? 17 DR. JOHN BUTT: Yes, he is. 18 MS. JANE LANGFORD: All right. And you 19 also received the report of Frederick Jaffey (phonetic) -- 20 DR. JOHN BUTT: That's correct. 21 MS. JANE LANGFORD: -- that's number 8? 22 DR. JOHN BUTT: Yes. 23 MS. JANE LANGFORD: And he, too, is a 24 pathologist? 25 DR. JOHN BUTT: Yes.

165

1 MS. JANE LANGFORD: And number 13. I'm -- 2 my understanding, sir, is that number 13 is the report of 3 Dr. Pollanen. You did receive his report on this case? 4 DR. JOHN BUTT: Yes, if that's what it is. 5 I mean, I -- I'm just not clear about that one (1) item. 6 MS. JANE LANGFORD: Do you -- do you 7 recall having reviewed Dr. Pollanen's report when you 8 were -- 9 DR. JOHN BUTT: Vaguely, yes, -- 10 MS. JANE LANGFORD: -- preparing yours? 11 DR. JOHN BUTT: -- vaguely. 12 MS. JANE LANGFORD: All right. And on 13 page -- the next page, number 15 -- oh, I'm sorry, at the 14 bottom of the previous page. My apologies, Mr. Registrar. 15 Number 14, you received the report of Professor Bernard 16 Knight? 17 DR. JOHN BUTT: Yes. 18 MS. JANE LANGFORD: And Dr. Knight is a 19 pathologist? 20 DR. JOHN BUTT: Yes. 21 MS. JANE LANGFORD: And then over on page 22 15 -- sorry, page 3, number 15. You received an 23 additional report from Dr. Ferris, and this was issued ten 24 (10) years after his original report? 25 DR. JOHN BUTT: Yes.

166

1 MS. JANE LANGFORD: All right. And then 2 number 16, you received, what you've described as, 3 "unsolicited letters of Dr. Rasaiah." 4 And it appears to be there are three (3) 5 there, and we -- we know that Dr. Rasaiah is the 6 pathologist, and he was the original pathologist in this 7 case? 8 DR. JOHN BUTT: Yes. 9 MS. JANE LANGFORD: All right. Now, sir, 10 without wishing to suggest that you did not reach in an 11 independent opinion, and I know you did, you would agree 12 with me, though, that having read these reports, they were 13 of assistance to you in identifying and analyzing and 14 providing your opinion on the key pathologic issues in 15 this -- these case? 16 DR. JOHN BUTT: Of course. 17 MS. JANE LANGFORD: And these reports were 18 of assistance to you in understanding, amongst other 19 things, the range of opinions that were stated at the time 20 of the trial and at the time of the death investigation? 21 DR. JOHN BUTT: That's correct. 22 MS. JANE LANGFORD: All right. And I take 23 it, you would agree with me, that the pathologist 24 undertaking a post-mortem exam would not typically have 25 the benefit of this kind of insight from pathologic

167

1 colleagues? 2 DR. JOHN BUTT: At the time of the 3 examination, no. But, with respect, you know, one can 4 have consultations -- 5 MS. JANE LANGFORD: Fair. 6 DR. JOHN BUTT: -- at the time of the 7 exam. 8 MS. JANE LANGFORD: Fair enough. And in 9 your experience, though, although one is always capable of 10 obtaining consultations, it would be highly unusual for a 11 pathologist to seek the consultation of one (1), two (2), 12 three (3), four (4), five (5) other pathologists in either 13 doing a post-mortem exam or arriving at conclusions in a 14 post mortem report? 15 DR. JOHN BUTT: That's correct, yes. 16 MS. JANE LANGFORD: And that's largely 17 because pathologists who are undertaking the original post 18 mortem-exam are working in real life and in real time? 19 DR. JOHN BUTT: Oh, of -- of course, 20 that's true. 21 MS. JANE LANGFORD: And -- and you very 22 fairly noted yesterday the limitations of, amongst other 23 things, resources. 24 DR. JOHN BUTT: Yes. 25 MS. JANE LANGFORD: And I think you also

168

1 pointed out that time was of the essence for a lot of 2 these pathologists who are working in the front lines in 3 Ontario and, particularly, given the shortage that we've 4 heard of -- of qualified pathologists? 5 DR. JOHN BUTT: I'm sure that's true. 6 MS. JANE LANGFORD: And that would also 7 limit the possibility of the range of consultations that 8 we -- we've noted you had in terms of insight from 9 colleagues? 10 DR. JOHN BUTT: Yes, in general, where 11 you're talking about a larger number and the availability, 12 as well, to be complete, of course, depends on your 13 immediate circumstances. I don't know what the facilities 14 are at a place like Sault Ste. Marie to make 15 consultations, but they, of course, would be less than 16 they would be in Toronto. 17 MS. JANE LANGFORD: And -- and by 18 definition -- 19 DR. JOHN BUTT: On-the-spot consultations, 20 pardon me, I meant. 21 MS. JANE LANGFORD: And, by definition, 22 that would then prevent a pathologist from having a 23 hallway consultation with a colleague. 24 DR. JOHN BUTT: More or less; it depends 25 on the circumstances.

169

1 MS. JANE LANGFORD: Fair enough. 2 And, so, when we're considering 3 recommendations for pathologists and, in particular, the 4 content of their post-mortem reports, we should -- and I 5 take it you'd agree with this -- that we should be mindful 6 of the resources and the time that expectations of 7 pathologists who are working in the front lines in 8 Ontario? 9 DR. JOHN BUTT: Yes. And, you know, dare 10 I put a foot I the door here. I mean, there's one (1) way 11 of dealing with the problem and it's obviously to have 12 more resources. 13 MS. JANE LANGFORD: Fair enough. That's 14 for someone else's client to worry about. 15 All right. Turning to a new topic, 16 gentlemen. 17 COMMISSIONER STEPHEN GOUDGE: Just before 18 you do, Ms. Langford. Dr. Crane, what is the reporting 19 pattern in your jurisdiction? Do you have a standard 20 form? Do you have a narrative template? 21 DR. JACK CRANE: Professor Milroy 22 mentioned that there is a sort of standard format for 23 coronial autopsies. Now, some people will use a standard 24 form such as the one that -- that we've seen. It's our 25 practice to, if you like, follow the format, but it's done

170

1 in a narrative way simply because we found that the form 2 is too restrictive; you cannot put all the information. 3 And, for instance, our form, that was 4 devised with the Coroners Act, had no place for history or 5 opinion but we, nevertheless, include those because we 6 think those are -- that's important information that 7 should be included in the document. 8 COMMISSIONER STEPHEN GOUDGE: And how does 9 that get into the standard practice of pathology in 10 Northern Ireland? When you say "we think," that means it 11 is your institute that leads the way or...? 12 DR. JACK CRANE: Yes. I mean all the 13 coronial reports are generated in my department. So if I 14 say that's how they're going to be done -- 15 COMMISSIONER STEPHEN GOUDGE: I guess that 16 is how they are going to be done. 17 DR. JACK CRANE: -- that's how they're 18 done. 19 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 20 Langford. 21 22 CONTINUED BY MS. JANE LANGFORD: 23 MS. JANE LANGFORD: And I should, before I 24 turn to that next topic, just -- just, when we're talking 25 about consultations and the frequency or infrequency of

171

1 consultations obtained by the original post-mortem 2 pathologists, I take it, sir, you would agree with me that 3 it would be not a common circumstance for a pathologist in 4 Ontario to have access to one (1) of the authors of the 5 leading textbook in pathology prior to issuing a post- 6 mortem report? 7 DR. JOHN BUTT: Not a common thing. 8 MS. JANE LANGFORD: Not a common thing. 9 And, of course, Dr. Knight is one (1) of those well- 10 respected and well-known authors of a well-regarded text? 11 DR. JOHN BUTT: That's correct. 12 MS. JANE LANGFORD: Okay. 13 COMMISSIONER STEPHEN GOUDGE: Can I -- 14 sorry to do this, but -- 15 MS. JANE LANGFORD: No, that's all right. 16 COMMISSIONER STEPHEN GOUDGE: -- obviously 17 I find these issues interesting. 18 How much does technology enable us to 19 address the issue of consultation? That is, the use of 20 digital photographs, the use of digitized slides and so 21 on. 22 That is, is technology opening up new ways 23 of facilitating consultation? 24 DR. CHRISTOPHER MILROY: We are looking at 25 a computer system where, for example, the police will put

172

1 the photographs straight on to a central computer that you 2 can then pull off. We are looking to -- I managed to 3 persuade the Home Office to provide me with a budget for a 4 digital microscope -- photography for digital microscope - 5 - so that I can, if necessary, photograph the slide. And 6 all of these can now be electronically sent. Obviously, 7 you know, to be fair that wasn't the case during -- 8 COMMISSIONER STEPHEN GOUDGE: Yes, I mean, 9 this is -- 10 DR. CHRISTOPHER MILROY: -- Dr. Smith's -- 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 DR. CHRISTOPHER MILROY: This is -- this 13 is -- 14 COMMISSIONER STEPHEN GOUDGE: Clearly, 15 back in the '90's this was nowhere on the horizon. 16 DR. CHRISTOPHER MILROY: This was not on 17 the horizon and if you wanted to take a case to someone in 18 the '90's, you physically had to post them or take them, 19 the slides, the photographs. 20 But now digital imaging allows -- I mean, 21 as an example, I got phoned up about a case -- I can -- I 22 can talk about it because there's been a guilty plea to 23 murder -- where the suspect had injuries. My colleague 24 had done the autopsy. 25 The police said, We want you to look at the

173

1 photographs. Do you mind if we email them to you now 2 because we've got him in -- in interview; we're 3 interviewing him; we want your opinion on how the injuries 4 that are present on the suspect correlate with what he's 5 saying, and that was almost real-time looking. 6 So, it is now something that -- especially 7 for a geographical entity like the Canadian Provinces, 8 which are large in comparison with the United Kingdom, it 9 affords the possibility of greater communication between 10 different people. 11 COMMISSIONER STEPHEN GOUDGE: And so 12 hallways can be replaced by the Internet, to some degree? 13 DR. CHRISTOPHER MILROY: Yeah. I'm not a 14 great fan of excluding hallway coffee table talk because 15 things like the face of your colleague, as you're 16 suggesting things to them, tell you things sometimes that 17 you can't pick up in writing. 18 You know, if they don't -- you know, they 19 say, Well, it's a possibility, you know, you look at their 20 face and, You don't really believe it, do you? And it -- 21 that -- that sort of daily interaction of people is very 22 important. And that's why I believe in having people 23 physically in buildings and units together, but I 24 recognize that, with a geographic entity, there may be 25 people are isolated and you can bring them at least closer

174

1 to you by electronic means. 2 COMMISSIONER STEPHEN GOUDGE: Do either of 3 other two (2) have any comment on technology as a 4 facilitator of peer review, in a sense? 5 DR. JACK CRANE: I -- I think it's -- it's 6 making -- making peer review a lot easier. 7 COMMISSIONER STEPHEN GOUDGE: Do you do -- 8 do you use it, Dr. Crane? 9 DR. JACK CRANE: Yes, we do. Again -- 10 COMMISSIONER STEPHEN GOUDGE: How? 11 DR. JACK CRANE: It's by sending CDs to 12 people to look at and -- and getting opinions on them. 13 COMMISSIONER STEPHEN GOUDGE: With 14 digitized photographs -- 15 DR. JACK CRANE: Digitized photographs. 16 COMMISSIONER STEPHEN GOUDGE: -- and 17 slides? 18 DR. JACK CRANE: We would still tend to 19 actually send the slide physically. 20 COMMISSIONER STEPHEN GOUDGE: Why? 21 DR. JACK CRANE: I think because usually 22 people I'm sending them to are people of my generation and 23 we still actually put the slide under the microscope. 24 COMMISSIONER STEPHEN GOUDGE: That I 25 understand.

175

1 DR. JACK CRANE: Yes. 2 DR. CHRISTOPHER MILROY: He's caught up 3 with CDs. You haven't mentioned the Internet yet, but... 4 COMMISSIONER STEPHEN GOUDGE: Yes. Is 5 there any difference in the accuracy of the second look, 6 as between looking at the actual slide and looking at a 7 digitized photograph of the slide? 8 DR. CHRISTOPHER MILROY: The advantage of 9 the digitized slide is you can just get a -- an 10 instantaneous opinion than, obviously, to physically send 11 the slides. But if -- if the slides were important, you 12 would always ask for the -- for the slides, but if you 13 needed -- 14 COMMISSIONER STEPHEN GOUDGE: Why? 15 DR. CHRISTOPHER MILROY: Well, because you 16 can look over all of them, whereas, obviously, a digitized 17 image is selected by the person who's sending it to you. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 DR. CHRISTOPHER MILROY: There are 20 beginning to be instruments for completely digitizing the 21 whole slide so that you can -- you can do the process of 22 looking at a slide as if it was in front of you. That's 23 not quite here yet, as I understand it, but it will be. 24 So you effectively have the slide in 25 electronic forming in its entirety, and you can look at it

176

1 at different magnifications, you can scan it in different 2 sites and that -- that's going to come. 3 COMMISSIONER STEPHEN GOUDGE: Okay. Dr. 4 Butt, anything you want to add about that? 5 DR. JOHN BUTT: No, I don't think so. 6 COMMISSIONER STEPHEN GOUDGE: Thanks. 7 8 CONTINUED BY MS. JANE LANGFORD: 9 MS. JANE LANGFORD: Thank you, sir. So, 10 turning to a new topic, gentlemen. 11 You have all testified to the -- a number 12 of cases in which there are nonfatal injuries found at -- 13 at autopsy or -- or older injuries, if you will. 14 And I want to canvass with you the extent 15 to which you believe it is appropriate for the pathologist 16 to expressly identify those injuries and raise any 17 concerns that those injuries might give rise to. 18 And, Dr. Crane, I want to start with you, 19 if I may, and look at the Joshua case, and, in particular, 20 if I -- I'm going to ask you to turn to Tab 6, which is 21 the overview report, and that's at PFP143053. And, in 22 particular -- 23 COMMISSIONER STEPHEN GOUDGE: Tab 6 of Dr. 24 Crane's volume? 25

177

1 CONTINUED BY MS. JANE LANGFORD: 2 MS. JANE LANGFORD: Yes, Tab 6 of Dr. 3 Crane's volume, sir. 4 DR. JACK CRANE: Sorry, the page again, 5 Ms. Langford? 6 MS. JANE LANGFORD: Tab 6. 7 DR. JACK CRANE: Yes. 8 MS. JANE LANGFORD: It's the overview 9 report, and we're looking at page 17, and, in particular, 10 paragraph 44. 11 DR. JACK CRANE: Yes, I have it. 12 MS. JANE LANGFORD: And, specifically, 13 bringing your attention to the last two (2) sentences of 14 paragraph 44 where it notes that Dr. Holland, the 15 radiologist at the Belleville General Hospital, who 16 reviewed the images, and in particular ,here we're 17 referring to the radiographic skeletal survey that was 18 taken on Joshua. 19 And Dr. Holland stated in her report: 20 "These fractures have been described in 21 cases associated with Battered Child 22 Syndrome." 23 Now, Dr. Crane, I take it you would agree 24 with me that a pathologist who is presented with a 25 fracture of this nature -- and we -- we note that this is

178

1 the bucket handle fracture -- a pathologist confronted 2 with that presentation would appropriately have a raised 3 index of suspicion. 4 DR. JACK CRANE: Yes, I think they would. 5 MS. JANE LANGFORD: And if confirmed on 6 the post-mortem examination, you have indicated that such 7 a finding requires explanation? 8 DR. JACK CRANE: That's correct. 9 MS. JANE LANGFORD: All right. And I 10 suggest to you that it's also appropriate, therefore, for 11 the pathologist to include that finding in his post-mortem 12 report? 13 DR. JACK CRANE: Yes, indeed. 14 MS. JANE LANGFORD: And also appropriate 15 to advise the police and, in due course, the Crown, of 16 that finding? 17 DR. JACK CRANE: Yes, that's correct. 18 MS. JANE LANGFORD: All right. And if we 19 look at your report in the Joshua case, which I think is 20 at your Tab 4, and it's at PFP-135527 and at page 5. And 21 I'm looking, Mr. Registrar, to the third paragraph, the 22 last three (3) sentences. 23 Actually -- yeah, the third paragraph just 24 above where it says, 25 "the significant worrying finding in

179

1 this case." 2 Do you see that? 3 DR. JACK CRANE: Yes, I do. 4 MS. JANE LANGFORD: All right. So the -- 5 it -- it reads: 6 "The significant worrying finding in 7 this case is a metaphyseal fracture of 8 the lower end of the left tibia. Such 9 an injury may occur as a result of 10 deliberate abuse; example, if the child 11 is lifting and swung by the leg. Such 12 an isolated skeletal injury would 13 necessitate further investigation." 14 DR. JOHN BUTT: Yes. 15 MS. JANE LANGFORD: Those are your words. 16 And I take it, sir, that by concluding that -- that -- 17 first of all, you're not concluding by those statements 18 that this child suffered inflicted intentional abuse? 19 DR. JACK CRANE: No. I mean, abuse is one 20 (1) possible cause for that injury. 21 MS. JANE LANGFORD: But you are raising it 22 as a possibility? 23 DR. JACK CRANE: That's correct. 24 MS. JANE LANGFORD: And I take it, you 25 were comfortable raising the suspicion of abuse in cases

180

1 where this kind of fracture exists? 2 DR. JACK CRANE: Yes, it's -- it's an 3 injury that requires explanation because one (1) possible 4 explanation can be abuse. 5 MS. JANE LANGFORD: And you deliberately 6 chose the word, "worrying," and you -- that's an 7 appropriate word to use in this circumstance? All right. 8 And also on that page, I believe if we go 9 up to the second paragraph where you say: 10 "There were a few small areas of 11 bruising in the undersurface of the 12 skull, possibly due to minor knocks or 13 blows or by compression of the head. 14 Whilst in themselves not serious, such 15 injuries should properly raise concerns 16 and would require further investigation 17 and explanation." 18 DR. JACK CRANE: Yes. 19 MS. JANE LANGFORD: These are the same 20 sort of injuries, that is, injuries that you believe 21 require explanation because, in and of themselves, they 22 are worrying? 23 DR. JACK CRANE: Yes. I mean, I think if 24 you find any injuries in an infant, then you want to know 25 what possible explanation that there is for -- for them

181

1 being present. And quite rightly, I -- I think they -- 2 they raise concerns. 3 And as you say, the pathologists con -- 4 level of concern might be increased. 5 MS. JANE LANGFORD: And that concern is 6 appropriately expressed to both the police and the Crown? 7 DR. JACK CRANE: Yes, that's correct. 8 MS. JANE LANGFORD: And if those injuries 9 remained unexplained, appropriately expressed to the 10 court? 11 DR. JACK CRANE: Yes. I mean, what -- 12 what one would do is one would include those findings in 13 the report, and, if you're asked about them, then you 14 would give the reason why you think that you're concerned 15 about them. 16 MS. JANE LANGFORD: Fair enough. And look 17 to -- turning on the same theme to your re -- summary 18 report on the Paolo case, which I think is in Volume 2, 19 Tab 14, of Dr. Crane's case-specific materials. And it's 20 PFP002910, page 2. And up to the top of the page. 21 Sir, you'll see under the heading 22 "testimony" and under "narrative," the second paragraph, 23 you state: 24 "I agree that there is good evidence to 25 support non-accidental injury. This

182

1 infant had clearly been subjected to 2 chronic physical abuse." 3 And I take it, sir, that statement -- you 4 were relying upon the post-mortem findings of multiple 5 fractures of various ages when you made that statement? 6 DR. JACK CRANE: That's correct. 7 MS. JANE LANGFORD: All right. And none 8 of which, in your opinion, to be fair, you believed were 9 recent and -- or caused the death? 10 DR. JACK CRANE: That's correct. 11 MS. JANE LANGFORD: And, in fact, you 12 stated that the death was unascertained in this case? 13 DR. JACK CRANE: That's right. 14 MS. JANE LANGFORD: But nonetheless, you 15 felt reasonably certain and used the language "good 16 evidence" to convey your concern that this child had been 17 subject to chronic physical abuse? 18 DR. JACK CRANE: That's correct. 19 MS. JANE LANGFORD: And that's an 20 appropriate communication for a pathologist to make upon 21 discovering this type of finding at post-mortem? 22 DR. JACK CRANE: I believe it is, yes. 23 MS. JANE LANGFORD: And you -- you, as a 24 pathologist, would feel comfortable advising the police, 25 the Crown, and, if asked, the Court using that kind of

183

1 language of -- about these findings? 2 DR. JACK CRANE: Yes. 3 MS. JANE LANGFORD: Even in a case where 4 the death is unascertained? 5 DR. JACK CRANE: Well -- 6 MS. JANE LANGFORD: Where the cause of 7 death is unascertained, I should say? 8 DR. JACK CRANE: -- I think the findings 9 may not have anything to do with the cause of death, but 10 they are findings, and it's important for the pathologist 11 to explain, as best he can, the significance of those 12 findings. 13 MS. JANE LANGFORD: And as you say, even 14 if unrelated to the cause of death? 15 DR. JACK CRANE: That's correct. 16 MS. JANE LANGFORD: And, Dr. Milroy, you 17 had a case that -- of similar nature, and looking at the 18 Jenna case for a moment, and I think that's at Tab 18 of 19 your case- specific material. 20 And looking at -- this is your opinion on 21 that case. 22 DR. CHRISTOPHER MILROY: Yes. 23 MS. JANE LANGFORD: PFP 135465. And I'm 24 looking at page 7, under Professor Milroy's opinion on the 25 case. And I'm looking specifically to the third sentence,

184

1 where, Dr. Milroy, you write: 2 "In my opinion, these burns have been 3 deliberately inflicted." 4 DR. CHRISTOPHER MILROY: Yes. 5 MS. JANE LANGFORD: All right. And I -- I 6 believe your evidence was that you, on gross examination 7 of the photographs of this case, were able to conclude 8 that these burns were deliberately inflicted? 9 DR. CHRISTOPHER MILROY: Yes. I mean, and 10 that's something that I would do. And even though 11 something may not be a cause of death, of course, it could 12 form another charge in relation to the child. So, if the 13 evidence is there, you should state your opinion on it. 14 MS. JANE LANGFORD: And, indeed, it may 15 assist the police in the investigation? 16 DR. CHRISTOPHER MILROY: Assist the police 17 and the Crown -- the Crown in deciding the level of 18 charge, and -- because, of course, rising out of the 19 death, they may be non death-related charges; serious 20 assaults, previous bodily harm, and so on. 21 MS. JANE LANGFORD: And, indeed, in this 22 case, that's actually one (1) of the things that occurred, 23 isn't it? 24 DR. CHRISTOPHER MILROY: Yeah, that's what 25 I understand.

185

1 MS. JANE LANGFORD: Jenna's mother was 2 indeed the subject of an investigation and a finding -- 3 actually a confession of physical abuse? 4 DR. CHRISTOPHER MILROY: That is my 5 understanding. 6 MS. JANE LANGFORD: And just to be clear 7 then, you would not hesitate to use the language that 8 you've used in this report, and that is "deliberately 9 inflicted", when communicating with the police and the 10 Crown about a finding such as these burns? 11 DR. CHRISTOPHER MILROY: No, I do that 12 regularly. 13 MS. JANE LANGFORD: All right. And I take 14 it that the reason you feel confident in using that kind 15 of language is that your level of certainty as to the -- 16 in -- whether or not this was a deliberate injury was 17 fairly high? 18 DR. CHRISTOPHER MILROY: Yes. 19 MS. JANE LANGFORD: Now, just while we're 20 on the Jenna case, Dr. Milroy, you also note the presence 21 of an older liver injury? 22 DR. CHRISTOPHER MILROY: Yes. 23 MS. JANE LANGFORD: And I can put you down 24 a little bit further in that paragraph. You state: 25 "There was evidence of an older liver

186

1 injury, as a clear and flammatory 2 response is present. The injury is 3 hours old. The liver injury was not the 4 immediate cause of death in the case, 5 though a contribution from the liver 6 injury cannot be excluded." 7 Now, again, here's a situation where you 8 are -- are stating your opinion that you don't believe 9 this older injury was the immediate cause, but you felt it 10 was appropriate to convey to the police and to the Crown, 11 and anyone else reading this, that it would be not 12 possible to exclude the live injury as a -- as a 13 contributing factor in the death? 14 DR. CHRISTOPHER MILROY: That's correct. 15 If you want the reason, a liver injury could bleed. And, 16 of course, there could, therefore, be some blood loss from 17 that, which clearly could contribute to the overall blood 18 loss that may come later for a -- as an example. 19 MS. JANE LANGFORD: I take it you would 20 agree that liver -- hemorrhagic shock from liver 21 lacerations can occur at -- at vastly varying rates. So 22 it difficult to measure that? 23 DR. CHRISTOPHER MILROY: It's very 24 difficult. Yeah, it is difficult to measure them. 25 MS. JANE LANGFORD: All right. All right,

187

1 and, Dr. Milroy, you also had another case of an older 2 injury, and that was the Tiffany case? 3 DR. CHRISTOPHER MILROY: Yes. 4 MS. JANE LANGFORD: And looking at Tab 43 5 of your case-specific binder, PFP152220. And I'm 6 specifically looking at page 6 of your report. And under, 7 Professor Milroy's opinion on the case, second sentence, 8 you note -- and I should point out that you have given 9 your evidence in this case that you believe that the cause 10 of death is undetermined by the post-mortem exam? 11 DR. CHRISTOPHER MILROY: Yes. 12 MS. JANE LANGFORD: All right. But you 13 also state here that: 14 "...the autopsy revealed healing rib 15 fractures that without appropriate 16 explanation can be considered evidence 17 of child abuse." 18 DR. CHRISTOPHER MILROY: Yes. 19 MS. JANE LANGFORD: And, again, I take it 20 you would agree that "child abuse" implies a criminal act? 21 DR. CHRISTOPHER MILROY: Yes. 22 MS. JANE LANGFORD: And, again, you fel -- 23 feel that it's appropriate to use that kind of language 24 when speaking of an injury such as rib fractures in a 25 child of this age?

188

1 DR. CHRISTOPHER MILROY: Yes. 2 MS. JANE LANGFORD: And, again, that kind 3 of information may be relevant to the police in their 4 investigation? 5 DR. CHRISTOPHER MILROY: Yes. 6 MS. JANE LANGFORD: And it may be relevant 7 to the Crown when making decisions about the nature of 8 charges, if any? 9 DR. CHRISTOPHER MILROY: That's correct. 10 MS. JANE LANGFORD: And, again, even if 11 those injuries are unrelated to what you believe to be the 12 cause of death, it's still appropriate to bring that to 13 the attention of the authorities? 14 DR. CHRISTOPHER MILROY: Absolutely. And 15 so when we're looking at recommendations in this case, Dr. 16 Milroy, I take it that you would agree that any 17 recommendations we make about communications between 18 pathologists and the -- and the police, or pathologists 19 and the coroner, or pathologists and the Crown, should not 20 preclude a pathologist from reporting on abnormal findings 21 that are unrelated to death if those findings raise 22 concerns? 23 DR. CHRISTOPHER MILROY: No, it would be 24 inappropriate not to raise those injuries and those 25 concerns.

189

1 MS. JANE LANGFORD: And it would be 2 inappropriate because, in effect, it would be misleading 3 not to raise them because it doesn't tell the whole 4 pathological story? 5 DR. CHRISTOPHER MILROY: Absolutely. 6 MS. JANE LANGFORD: Now just -- 7 COMMISSIONER STEPHEN GOUDGE: And just to 8 be clear. I take it this is an example, Dr. Milroy, where 9 you felt that the pathological evidence was sufficient to 10 allow you to conclude, in the absence of appropriate 11 explanation, a deliberate act? 12 DR. CHRISTOPHER MILROY: Yes. I mean, the 13 rib fractures are a very classic injury in child abuse. 14 So in the absence of an explanation proffer -- 15 COMMISSIONER STEPHEN GOUDGE: And I take 16 it the explanation that is absent here would be an 17 alternative, such as accident? 18 DR. CHRISTOPHER MILROY: That -- the 19 alternative would then be a -- yes, an accidental cause 20 for them. But they clearly could found, depending on the 21 nature of the jurisdiction, a number of potential charges 22 if it could be shown who -- one (1) of the problems is 23 then proving who did it, but there may be charges of 24 neglect or grievous bodily harm, in English law, and so 25 on. So they could well found criminal charges.

190

1 And furthermore, your report, of course, in 2 these cases may well be used in family proceedings to 3 safeguard other children. So to not put them in and 4 comment on them, would be negligence of your duty. 5 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 6 Langford. 7 8 CONTINUED BY MS. JANE LANGFORD: 9 MS. JANE LANGFORD: And just while we're 10 on Jenna, Dr. Milroy. I was interested in your comments 11 yesterday, I believe, or perhaps Monday, when you said 12 that upon learning the history provided by the police in 13 this case, and that is that Jenna was in the care of a 14 male babysitter -- 15 DR. CHRISTOPHER MILROY: Yes. 16 MS. JANE LANGFORD: -- you, without any 17 further examination, would have ordered anal and vaginal 18 swabs be taken. 19 DR. CHRISTOPHER MILROY: Yes. 20 MS. JANE LANGFORD: And I -- I take it, 21 sir, that you were not intending by that comment to 22 suggest that you had pre-judged; that simply because Jenna 23 was in the care of a male babysitter, therefore, that male 24 babysitter must have sexually assaulted Jenna? 25 DR. CHRISTOPHER MILROY: Oh, absolutely

191

1 not. 2 MS. JANE LANGFORD: What you were doing is 3 relying on your experience and acting reasonably in the 4 circumstances of the history you were provided? 5 DR. CHRISTOPHER MILROY: Yes. I mean, I 6 have had cases where just taking things routinely do, 7 occasionally, throw up surprises and, therefore, you're 8 just covering the bases. Not -- you're not -- by taking 9 the swabs, you are not implying that something has 10 happened, but they are available to be examined. And 11 occasionally -- for example, an allegation may be made 12 subsequent to your post-mortem examination. 13 You've only got one (1) chance to take the 14 material, so if you take it, it's -- I regard it as a 15 perfectly neutral act at that stage -- and then they can 16 eith -- they're often stored and not examined, but they 17 may then be sent off for examination at a subsequent date 18 if another piece of history comes in or an allegation 19 comes in. 20 MS. JANE LANGFORD: But -- but just to be 21 clear, although I -- I accept your comment that it was a 22 neutral decision, I took it from what you said that there 23 was something in the historical circumstances of a male 24 babysitter on an infant that, in and of itself, raised 25 your index of suspicion, and without wishing to prejudge

192

1 whether or not that babysitter did, indeed, assault the 2 child, the very fact that it was a male babysitter who was 3 caring for the infant at the time of death raised your 4 index of suspicion? 5 DR. CHRISTOPHER MILROY: Yes, in -- in the 6 presence of all these other injuries, if it has been 7 caught there. If it had been a straightforward crib death 8 with an uninjured child -- 9 MS. JANE LANGFORD: Fair. 10 DR. CHRISTOPHER MILROY: -- I cannot 11 conceive of us routinely taking swabs. 12 MS. JANE LANGFORD: It's very much about 13 the circumstances here. 14 DR. CHRISTOPHER MILROY: It is about the 15 circumstance of the case. I mean it's of -- if you look 16 at any of the Kennedy protocols, anal and vaginal swabs 17 are not part of the routine protocol. 18 MS. JANE LANGFORD: Fair. All right. And 19 I want to shift now just ever so slightly. We've talked 20 about cases where the -- there are older injuries or 21 nonfatal injuries and whether it's appropriate to 22 communicate those. 23 I want to now shift o -- ever so slightly 24 and talk about situations where a pathologist cannot offer 25 a definitive cause of death, but where the pathologist

193

1 considers a particular cause more -- more or less likely, 2 and we have had a number of -- of your comments on -- all 3 of your comments on this issue. 4 I want to go back to you, Dr. Crane, for a 5 moment and deal with the Joshua case. And just before I - 6 - I take you to a document, I believe your evidence -- I 7 believe your evidence was that you thought the cause of 8 death in this case should be stated as unascertained. 9 DR. JACK CRANE: Yeah, that's correct. 10 MS. JANE LANGFORD: Okay. And I wrote 11 your evidence down from Monday, sir, that although you 12 believed that the cause of death should be stated as 13 unascertained, you stated: 14 "In my commentary, I would indicate that 15 there remains a significant possibility 16 that the -- that the care -- " 17 And then you paused. 18 " -- the death could have been caused by 19 some form of suffocation in an unsafe 20 sleeping environment." 21 DR. JACK CRANE: That's correct. 22 MS. JANE LANGFORD: And -- and you were 23 fair to say, because you weren't sure of that, you had to 24 state the cause of death as unascertained, correct? 25 DR. JACK CRANE: That's correct.

194

1 MS. JANE LANGFORD: But I take it, sir, 2 you used the words "significant possibility" to express 3 your level of concer -- certainly as to how you believed 4 Joshua died. 5 DR. JACK CRANE: Yes. Based on -- on the 6 circumstances of the death, yes. 7 MS. JANE LANGFORD: And, in fact, speaking 8 of the circumstances, I think what you suggested was that 9 the significant possibility that you were referring to did 10 not come from the pathology at all; it came from the 11 historical circumstances that were presented in this case. 12 DR. JACK CRANE: That's correct. 13 MS. JANE LANGFORD: And in this case being 14 the circumstances in which Joshua was found at -- at 15 death. 16 DR. JACK CRANE: That's correct. 17 MS. JANE LANGFORD: And so am I right 18 then, sir, that you feel as a pathologist that it is 19 appropriate to state a cause of dea -- sorry, a 20 possibility of a ga -- of a cause of death in 21 circumstances where the pathology in and of itself is not 22 definitive, but where the history may well provide an 23 answer to the question? 24 DR. JACK CRANE: Yes, I think that there 25 are two (2) things. First of all, you have to make it

195

1 clear that there -- there's nothing in the pathology, and 2 what you're commenting on is information relating to the 3 circumstances, that's correct. 4 MS. JANE LANGFORD: All right, and -- and 5 to be fair, I think what you've made it clear is the 6 important thing is to communicate the -- with clarity, 7 your level of certainty and the limitations of the 8 pathology in those cases. 9 DR. JACK CRANE: That's correct, yes. 10 MS. JANE LANGFORD: And I take it that the 11 reason that you believe it's appropriate to state the 12 possibilities that arise in a case of this nature is that 13 simply stating a cause of death is unascertained does not 14 tell the whole story. It's an incomplete picture of the - 15 - of the death investigation from a pathological point of 16 view. 17 DR. JACK CRANE: Yes, I think that's 18 right. I think that the pathologist's role is more than 19 just giving a cause of death. 20 MS. JANE LANGFORD: And I think actually 21 the Commissioner put it well to you yesterday, and I'm not 22 sure I got down your response, so I'll -- I'll try again 23 on his behalf, if -- if not my own. 24 You're telling more than just simply the 25 cause of death because you're simply trying to come as

196

1 close to the truth as you can gimmed -- given the limited 2 extent of the information available. 3 DR. JACK CRANE: Yes, that's correct. 4 MS. JANE LANGFORD: And the police, and 5 the Crown, and in due course, the Court deserve the 6 benefit of what you call your advice as a pathologist. 7 DR. JACK CRANE: Yes, I mean in -- I 8 suspect that in -- in a case like that it probably isn't 9 going to go very far. 10 MS. JANE LANGFORD: Fair enough. 11 DR. JACK CRANE: But you're flagging up an 12 issue which I -- I think it's appropriate for the 13 pathologist to -- to flag up at that time. 14 MS. JANE LANGFORD: And -- and My Friend, 15 Mr. Sandler, put a suggestion to you that I don't think 16 you answered and I want to be clear on this. You -- you 17 just made the point that in a case such as this, in an 18 unsafe sleeping environment being the likely or 19 significant possibility, it may well not end up in -- in a 20 courtroom. 21 But I suggest to you, sir, that it really 22 is not a matter of whether or not that possibility is 23 inculpatory or exculpatory, it is still the obligation of 24 the pathologist to communicate the possibility of a death 25 in these circumstances?

197

1 DR. JACK CRANE: Yes, that's correct. 2 3 (BRIEF PAUSE) 4 5 MS. JANE LANGFORD: All right. And then, 6 Dr. Milroy, looking at the Tamara case for a moment on the 7 same -- 8 DR. CHRISTOPHER MILROY: Yes. 9 MS. JANE LANGFORD: -- topic. And I wrote 10 down your evidence, I think, this morning on -- 11 DR. CHRISTOPHER MILROY: Yes. 12 MS. JANE LANGFORD: -- this as being that 13 you must consider, in your view, this death as 14 unascertained -- 15 DR. CHRISTOPHER MILROY: Yes. 16 MS. JANE LANGFORD: -- the cause of death 17 being unascertained, but that you had concerns about this 18 case, that they were -- this case was very suspicious on 19 the circumstances. 20 DR. CHRISTOPHER MILROY: Yes. 21 MS. JANE LANGFORD: That it had the 22 appearances of a non-accidental death, and there was 23 evidence of child abuse, and you thought a non-innocent 24 explanation? 25 DR. CHRISTOPHER MILROY: It's a strong

198

1 possibility. 2 MS. JANE LANGFORD: All right. And, in 3 fact, if we look at your medicolegal report in this 4 matter, which is at Tab 34 of your materials, which is 5 PFP135457. 6 COMMISSIONER STEPHEN GOUDGE: Do you have 7 a tab number for that? 8 MS. JANE LANGFORD: Yes, Tab 34. 9 COMMISSIONER STEPHEN GOUDGE: Thank you. 10 MS. JANE LANGFORD: Oh, I'm sorry, Volume 2. 11 COMMISSIONER STEPHEN GOUDGE: Yes. No, I 12 have got it, thanks. 13 14 CONTINUED BY MR. JANE LANGFORD: 15 MS. JANE LANGFORD: And looking at page 7 16 of that report. There's a lengthy paragraph that starts, 17 "Sudden Natural Death", and just underneath the reference 18 to Dr. Lester Adelson, you state: 19 "There was no basis to ascribe the mode 20 of death as asphyxia in this case. 21 Although the death was highly 22 suspicious, no specific cause of death 23 is disclosed on the autopsy and 24 ancillary investigations." 25 And then down at the bottom your concluding sentence

199

1 there: 2 "The findings do not preclude a 3 diagnosis of upper airway obstruction, 4 but ultimately the pathology does not 5 provide a specific cause of death, and I 6 would classify the cause of death in 7 this case as unascertained." 8 DR. CHRISTOPHER MILROY: Yes. 9 MS. JANE LANGFORD: So, sir, this is a 10 case, again, where the pathology cannot be definitive, in 11 your view? 12 DR. CHRISTOPHER MILROY: That's correct. 13 MS. JANE LANGFORD: But you achieved some 14 level of confidence or certainty in -- in a possible cause 15 of death that you described the upper airway obstruction 16 as a -- as a likely cause of death? 17 DR. CHRISTOPHER MILROY: That's a strong 18 possibility, yeah. Sort of like -- 19 MS. JANE LANGFORD: Strong possibility. 20 DR. CHRISTOPHER MILROY: -- it's not the 21 only possible cause of death, which -- and there are -- 22 there is a potential natural cause. I think it's less 23 likely, but it -- it's still there. But the -- the 24 overall circumstances of this death; that is what I would 25 be advising the police.

200

1 MS. JANE LANGFORD: And you would be 2 advising the police that this was a highly suspicious 3 death? 4 DR. CHRISTOPHER MILROY: Yes. 5 MS. JANE LANGFORD: And you have no 6 discomfort using that language when you feel that the 7 evidence on the post-mortem exam supports such a view? 8 DR. CHRISTOPHER MILROY: Correct. 9 COMMISSIONER STEPHEN GOUDGE: How would 10 you testify about that, Dr. Milroy? 11 DR. CHRISTOPHER MILROY: Well, I would 12 testify, in this case, that -- I think that there is 13 possibility of -- as I've said, but -- 14 COMMISSIONER STEPHEN GOUDGE: Would you 15 use the phrase, "highly suspicious"? 16 DR. CHRISTOPHER MILROY: I probably 17 wouldn't use the phrase, "highly suspicious" in -- in all 18 evidence, no. I would just give the possibil -- 19 COMMISSIONER STEPHEN GOUDGE: Why not? 20 DR. CHRISTOPHER MILROY: I think that 21 that's more looking at the overall circumstances and what 22 I would be saying to the police as an investigative 23 concern. But the -- the act -- the -- the pathologist, 24 when he's giving his evidence, he's going to say, Well, 25 what are the possibilities in relation to the cause of

201

1 death. 2 And they are -- although, I can't determine 3 a specific cause of death, upper airway obstruction is a 4 strong possibility. The other, if you like, innocent 5 explanations are less likely, but I can't exclude them. 6 That is the way I would give their evidence if it got to 7 court, in this case. 8 And ultimately, it's then going to be for 9 the jury -- 10 COMMISSIONER STEPHEN GOUDGE: I guess what 11 I am getting at, -- 12 DR. CHRISTOPHER MILROY: Yeah. 13 COMMISSIONER STEPHEN GOUDGE: -- do you 14 intuitively think of "highly suspicious" as a kind of 15 inflammatory phrase? 16 DR. CHRISTOPHER MILROY: Well, it is. I 17 think it would be inflammatory in front of the jury for me 18 to say that. 19 COMMISSIONER STEPHEN GOUDGE: But not 20 inflammatory for the police? 21 DR. CHRISTOPHER MILROY: I think to say 22 that -- I think that you've got to tell the police, look, 23 this -- this case is very concerning from a pathologist. 24 You've got -- you've got clear evidence of historic child 25 abuse, and you've then got an injury that is most

202

1 typically seen in child abuse acutely on the -- the 2 frenulum. 3 You've got a child who has aspirated 4 gastric contents. There is no medical reason for that 5 aspiration, so looking at those circumstances, I would use 6 words like, I think this is highly suspicious. You know, 7 I think -- 8 COMMISSIONER STEPHEN GOUDGE: Strong 9 possibility -- 10 DR. CHRISTOPHER MILROY: Strong possib -- 11 COMMISSIONER STEPHEN GOUDGE: -- of 12 suffocation. 13 DR. CHRISTOPHER MILROY: -- for the police 14 to go and conduct their investigation accordingly. But I 15 think I probably would temper my language a bit, because I 16 don't want to, you know, I don't want to over influence 17 the jury in my oral evidence. 18 If it's going to be a trial, they will 19 decide the case. 20 COMMISSIONER STEPHEN GOUDGE: But in both 21 cases you were trying to accurately reflect -- 22 DR. CHRISTOPHER MILROY: Trying to an -- 23 COMMISSIONER STEPHEN GOUDGE: -- to your 24 listener, what's going in your head? 25 DR. CHRISTOPHER MILROY: Yes.

203

1 2 CONTINUED BY MS. JANE LANGFORD: 3 MS. JANE LANGFORD: But, to be fair, sir, 4 you've talked about what you would communicate to the 5 police, but in this case, you put these words in a report, 6 and -- and -- 7 DR. CHRISTOPHER MILROY: That's fair 8 enough. 9 MS. JANE LANGFORD: -- and you'd put it in 10 a report at a -- on a post-mortem report as well, wouldn't 11 you? 12 DR. CHRISTOPHER MILROY: I would put in 13 the report if I was doing this as a -- as a post-mortem 14 examination report. This is slightly -- it was in a 15 slightly different context, this report. 16 But if I was doing a post-mortem 17 examination report, I would say, The post-mortem 18 examination does not disclose a specific cause of death, 19 and that is why I have recorded it as unascertained. 20 I would then go on to say, However, there 21 are -- there is clear evidence of historic child abuse. 22 There are also fresh injuries that are typical of child 23 abuse, although they could have another influ -- a strong 24 possibility in this case is -- is upper airway 25 obstruction.

204

1 MS. JANE LANGFORD: Well I'm not wishing 2 to give you a hard time on this, sir -- 3 DR. CHRISTOPHER MILROY: Yes. 4 MS. JANE LANGFORD: -- but I would assume 5 that when you did your Smith Review reports, particularly 6 in a situation where you and your colleagues -- 7 DR. CHRISTOPHER MILROY: Yes. 8 MS. JANE LANGFORD: -- were critical of 9 the language used by Dr. Smith -- 10 DR. CHRISTOPHER MILROY: Yes. 11 MS. JANE LANGFORD: -- in a number of 12 these cases, that you chose your language quite carefully 13 in these reports? 14 DR. CHRISTOPHER MILROY: Yes. 15 MS. JANE LANGFORD: And I take it, sir, 16 that you chose your language as carefully in these reports 17 as you would in a -- 18 DR. CHRISTOPHER MILROY: Yes. 19 MS. JANE LANGFORD: -- post-mortem report? 20 So I suggest to you that it is likely that if you have the 21 confidence that you have expressed about the likely cause 22 of death in this case, that you would, in fact, convey in 23 written form, that you were highly suspicious of the 24 circumstances of this death? 25 DR. CHRISTOPHER MILROY: I think stating

205

1 "strong possibility of deliberately -- of -- of upper 2 airway obstruction" is saying pretty much the same thing 3 as -- 4 MS. JANE LANGFORD: It's the same thing, 5 isn't it? 6 DR. CHRISTOPHER MILROY: Yeah. 7 MS. JANE LANGFORD: Okay. And -- and just 8 also to be fair, and I -- I take your points about 9 tempering your evidence -- 10 DR. CHRISTOPHER MILROY: Yes. 11 MS. JANE LANGFORD: -- in front of a jury, 12 but you have been a witness in a proceeding enough times 13 that I -- I'm sure you have experienced the lawyer who 14 puts to your report to you and cross-examines you on the 15 choice -- 16 DR. CHRISTOPHER MILROY: Yes. 17 MS. JANE LANGFORD: -- of language in the 18 report? So whether you, in your examination-in-chief, 19 chose to temper your language, it's highly likely that if 20 you put that kind of language in your report, it's going 21 to come out in the courtroom on cross-examination? 22 DR. CHRISTOPHER MILROY: Well, as I say, I 23 would use the term "strong possibility" -- 24 MS. JANE LANGFORD: All right. 25 DR. CHRISTOPHER MILROY: -- and,

206

1 therefore, I would -- I would -- I would be, obviously, 2 cross-examined upon that language. 3 MS. JANE LANGFORD: Fair enough. And 4 while we're on this case, this is the case where Dr. 5 Graeme Dowling also opined -- did a consultation report, 6 and if we can just go back to that for a moment. That's 7 at Tab 36, which is the overview report, Volume 2, and 8 that's at PFP143345. And, specifically, page 87. 9 And having noted your language in your 10 Smith Review report, in any event, that this case was 11 "highly suspicious," you'll note at the very bottom, so 12 this -- the last paragraph of 21 -- paragraph 215, you'll 13 see here that Dr. Dowling says: 14 "That the best a pathologist can do in a 15 case like this is to indicate a concern 16 and a high degree of suspicion that this 17 death was not due to any natural 18 disease, and that an asphyxial cause and 19 mechanism of death is either a distinct 20 possibility or the only reasonable 21 possibility." 22 DR. CHRISTOPHER MILROY: Yes. 23 MS. JANE LANGFORD: And you indicated in 24 your evidence that you agree with the tone of that -- that 25 communication?

207

1 DR. CHRISTOPHER MILROY: Yes. And I 2 suppose just to make it fair, I wasn't aware of this 3 specific report until more recently. So I -- I don't 4 think we're saying anything that differs greatly. 5 MS. JANE LANGFORD: And you're not 6 critical of Dr. Dowling who, I note, is the -- who was, at 7 the time, the Chief Medical Examiner for the Province of 8 On -- of Alberta. You're not critical of him using this 9 language of "high degree of suspicion"? 10 DR. CHRISTOPHER MILROY: No. 11 MS. JANE LANGFORD: Or that this cause -- 12 "asphyxial cause of death was a distinct possibility, or 13 the only reasonable possibility". 14 DR. CHRISTOPHER MILROY: I don't disagree 15 with the language he's used in this case. 16 MS. JANE LANGFORD: All right. And I 17 think you have fairly pointed out, Dr. Milroy, that this - 18 - and I think Dr. Crane did as well -- that this is a 19 challenge for pathologists; how to convey a possible cause 20 of death in circumstances where the pathology perhaps 21 falls a bit short? 22 DR. CHRISTOPHER MILROY: I -- I think it's 23 a great challenge. And it's one, in fact, the 24 Commissioner has said we possibly could do with some more 25 formal guidance and structure on how we phrase our

208

1 language, as I know the forensic scientists have got their 2 terminology possibly a bit more formalized. 3 MS. JANE LANGFORD: And I think you, fair 4 enough, said that you would benefit as a pathologist. And 5 I take it you'd agree that all pathologists in Ontario 6 would likely benefit from some assistance as to what the 7 best language should be in situations like this where a 8 possible cause is there, should be communicated, but not 9 definitively? 10 DR. CHRISTOPHER MILROY: Yes, I think 11 that's -- that's correct. 12 MS. JANE LANGFORD: Turning to the -- a 13 new issue, and it's related to this; the diagnosis of 14 asphyxia. 15 And all of you have raised concerns about 16 the use of asphyxia standing alone as a diagnosis of a 17 cause of death. And I want to look, in particular, Dr. 18 Crane, to two (2) of your comments that you made in two 19 (2) different reports; one (1) in the Valin case and one 20 (1) in the Joshua case. So I'm not sure whether you have 21 in front of your medical-legal report on the Valin case? 22 DR. JACK CRANE: Yes, I have. 23 MS. JANE LANGFORD: And just for Mr. 24 Registrar, it's PFP004089. 25 COMMISSIONER STEPHEN GOUDGE: I can read

209

1 the screen, Ms. Langford. 2 3 CONTINUED BY MS. JANE LANGFORD: 4 MS. JANE LANGFORD: No, no, I wasn't -- I 5 wasn't worried about that, I was more noticing that it was 6 -- I'm about to start a new area and I'm noticing -- 7 COMMISSIONER STEPHEN GOUDGE: Absolutely. 8 MS. JANE LANGFORD: -- that we should 9 probably take a break. 10 COMMISSIONER STEPHEN GOUDGE: Is this a 11 convenient time for... 12 MS. JANE LANGFORD: It is, sir. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 MS. JANE LANGFORD: Thank you. 15 COMMISSIONER STEPHEN GOUDGE: We will 16 break now until -- do my math right here, 3:26. 17 18 --- Upon recessing at 3:10 p.m. 19 --- Upon resuming at 3:30 p.m. 20 21 THE REGISTRAR: All rise. Please be 22 seated. 23 COMMISSIONER STEPHEN GOUDGE: Ms. 24 Langford...? 25

210

1 CONTINUED BY MS. JANE LANGFORD: 2 MS. JANE LANGFORD: Thank you, Mr. 3 Commissioner. 4 So we were just about to turn Dr. Crane to 5 the issue of the diagnosis of asphyxia and in particular 6 your report in the Valin's case. And I would like you to 7 turn to page 4 of your report. 8 All right. And, in particular, I'm looking 9 at a paragraph just above the report of Dr. Charles Smith 10 that starts "The cause of death..." And you'll see that 11 the third sentence in says the following: 12 "Attributing death to asphyxia is vague 13 and imprecise and is referring to a mode 14 of death as opposed to a cause. There 15 is no explanation as to the cause of 16 asphyxia which could, theoretically, be 17 entirely natural. If it was unnatural, 18 as seems to be implied, then the 19 mechanism needs to be elucidated, ie., 20 was it due to compression of the neck, 21 upper airway obstruction, suffocation, 22 et cetera?" 23 Those are your words? 24 DR. JACK CRANE: Yes. 25 MS. JANE LANGFORD: And just while --

211

1 while I can, can I just ask you: Compression of the neck, 2 upper airway obstruction, suffocation; are those causes of 3 -- of asphyxia? 4 DR. JACK CRANE: And, as you know, the 5 definition that I was using for asphyxia was "some sort of 6 mechanical interference." 7 MS. JANE LANGFORD: Yes. 8 DR. JACK CRANE: And those things can 9 cause it. That's correct, yes. 10 MS. JANE LANGFORD: Okay, so you would 11 refer them as causes of asphyxia? 12 DR. JACK CRANE: Yes. I think as I said, 13 I tend not to use the word "asphyxia" at all, so I would 14 put down "suffocation" or "smothering." 15 MS. JANE LANGFORD: You would simply put 16 down the cause? 17 DR. JACK CRANE: That's correct. Yes. 18 MS. JANE LANGFORD: Fair enough. All 19 right. And before I ask you more questions on that, if I 20 could ask you to turn to your report in Joshua, which is 21 at Tab 4 of your document brief, and it's PFP135527. And 22 we're looking at Page 3. 23 DR. JACK CRANE: Yes. 24 MS. JANE LANGFORD: And under "comment" on 25 autopsy report, the first paragraph, last sentence, where

212

1 you state: 2 "Furthermore, a diagnosis of asphyxia is 3 vague and non-specific and should 4 properly be provided in the context of 5 the mechanism by which it was produced, 6 eg, Compression of the neck." 7 DR. JACK CRANE: Yes. 8 MS. JANE LANGFORD: And those are your 9 words. All right. Now I understand your evidence on 10 asphyxia is -- is -- and I'm summarizing it, I admit -- is 11 that it's dangerous to simply state "asphyxia" in your 12 opinion. Is that correct? 13 DR. JACK CRANE: Yes, because I think it's 14 -- it's open to misinterpretation as I said, and it 15 doesn't tell you how the asphyxia came about. 16 MS. JANE LANGFORD: Fair enough. And you 17 suggested that a preferable approach, therefore, is to 18 simply say, as you've just said, "compression of the neck, 19 or a plastic bag suffocation." 20 DR. JACK CRANE: Yes. 21 MS. JANE LANGFORD: But I take it from 22 your comments, it wouldn't be wrong to put "asphyxia due 23 to suffocation of the -- or suffocation or compression of 24 the neck, or asphyxia due to plastic bag suffocation." 25 DR. JACK CRANE: Yes, you could do that,

213

1 yes. 2 MS. JANE LANGFORD: Could do that? 3 DR. JACK CRANE: Yes. 4 MS. JANE LANGFORD: And so I can -- am I 5 right, then, to say that from these statements that you've 6 made and your evidence, is that you believe that a 7 pathologist can diagnose asphyxia as a mode of death, if 8 the particular cause of asphyxia is expressly stated. 9 DR. JACK CRANE: Yes. And -- and the 10 cause is apparent, of course. 11 MS. JANE LANGFORD: Yes. And that 12 apparent cause, if you will, could come from the pathology 13 findings itself. 14 DR. JACK CRANE: Yes, that's correct. 15 MS. JANE LANGFORD: So if I could offer a 16 -- an example of a cause of asphyxia that is a -- 17 manifests itself in the pa -- pathology findings itself. 18 If you had findings of, let's say, significant ligature 19 marks with true conjunctival and facial petechiae and neck 20 contusions grossly apparent and hemorrhage seen under the 21 microscope. If you had those findings on pathology, you 22 would feel comfortable saying "asphyxia due to manual 23 strangulation". 24 DR. JACK CRANE: Yes, or ligature 25 strangulation, yes.

214

1 MS. JANE LANGFORD: Ligature 2 strangulation, okay. And so is it also true then, sir, 3 that you could also know the cause of asphyxia from the 4 historical circumstances presented to you? 5 DR. JACK CRANE: Yes, it is -- it is 6 possible. 7 MS. JANE LANGFORD: And so, if I can give 8 you an example of that. If the police were to advise you 9 that they received a caution -- a cautioned statement from 10 an individual who stated that they had placed their infant 11 in a bag -- a plastic bag, for example, you would feel 12 comfortable diagnosing -- and I take your point, you would 13 probably just use the term "plastic bag suffocation". 14 But you would feel comfortable with a 15 diagnosis of asphyxia due to plastic bag suffocation. 16 DR. JACK CRANE: Yes. If I could just 17 expand on it -- what -- what I would do is I would be 18 comfortable to put that in my cause of death. But in my 19 commentary, I would explain how I came to that conclusion. 20 In other words, on the basis of information 21 that was provided to me. And I would also have to make 22 the point that the autopsy didn't reveal anything, but 23 that would not be unexpected if nothing would be expected 24 to find on post-mortem examination. 25 MS. JANE LANGFORD: And so, am I taking it

215

1 from that, that as long as you expressly state the source 2 of the information upon which you are relying, whether it 3 be the pathological findings, or, in the second example, 4 the information provided to you by the police, you are 5 comfortable with the pathologist relying on either and 6 diagnosing asphyxia due to one of those causes? 7 DR. JACK CRANE: Yes. I think when one's 8 relying on information from another source, I think one is 9 a little bit more careful about how much reliance one will 10 place on that. 11 So, it's easy when we have the pathological 12 findings. When we don't, I think we're -- we're just a 13 little bit more, perhaps, careful in our approach to 14 diagnosing something on the basis simply of information 15 provided to us. 16 MS. JANE LANGFORD: And that's where 17 you're all the more careful in your commentary or your 18 explanation to -- 19 DR. JACK CRANE: That would be right. 20 MS. JANE LANGFORD: -- be clear where you 21 got the information so that somebody could challenge you 22 on that if -- if necessary or if they wished to do so. 23 DR. JACK CRANE: That would be correct, 24 yes. 25 MS. JANE LANGFORD: And, Dr. Butt, you too

216

1 have had some cases of asphyxia where you've expressed 2 similar concerns about using that cause of death alone. 3 DR. JOHN BUTT: Yes. 4 MS. JANE LANGFORD: And I think I -- I 5 heard you express the same opinions, that you would not 6 want to have it alone as a cause of death. 7 DR. JOHN BUTT: I would not, no. 8 MS. JANE LANGFORD: And if we could turn 9 for a moment to your report in the Kate -- Katerina 10 (phonetic) case. 11 DR. JOHN BUTT: Oh, yes. 12 MS. JANE LANGFORD: That's at Tab 4 of 13 your binder. 14 DR. JOHN BUTT: Yes. 15 MS. JANE LANGFORD: And it's at PFP135508. 16 And I'm looking at page 8 of your report. I think before 17 I take you to the passage that I'm interested in, Dr. 18 Butt, I believe what I heard you answer today and -- and 19 to a question, which is that, What does the pathologist 20 tell the police after a post-mortem in this case? 21 And I believe you indicated that you would 22 advise the police that there is weak pathology, but that 23 if there was information that suggested a mechanism of 24 smothering, that it was -- that, in those circumstances, 25 the pathology is always elusive.

217

1 DR. JOHN BUTT: Yes. 2 MS. JANE LANGFORD: And, so then, turning 3 to your report, and I'm looking at the last paragraph of 4 page 8, you state the following: 5 "I believe that the cause of death in 6 this case may well have been that form 7 of asphyxia known as smothering. This 8 diagnosis on autopsy findings alone is 9 often difficult. If historical 10 information was available to Dr. Smith 11 about the smothering, and there is every 12 reason to believe that it was, then it 13 should have been used in his report with 14 a proper explanation provided, including 15 that the findings would not rule out 16 smothering. Rather, that it was a 17 diagnosis aided by historical 18 information upon which he was required 19 to comment in the context of explaining 20 the possibilities of smothering 21 happening. And, if stating that 22 smothering was the cause of death, then 23 smothering was a cause given with 24 certain presumptions." 25 So I take that comment, Dr. Butt, together

218

1 with your evidence this morning on this case, to really be 2 in agreement with Dr. Crane, and that is that it is 3 acceptable for a pathologist to diagnose asphyxia when, 4 first of all, they state the cause of that asphyxia and 5 clearly provide the basis upon which they are making that 6 diagnosis. 7 Is that correct? 8 DR. JOHN BUTT: Yes. 9 MS. JANE LANGFORD: And you would also 10 state that it is perfectly appropriate, in those 11 circumstances, for the pathologist to rely upon, as you've 12 called it, historical information provided to -- to him. 13 DR. JOHN BUTT: I agree with that. 14 MS. JANE LANGFORD: And you would call 15 those -- that historical information, presumptions? 16 DR. JOHN BUTT: Yes. 17 MS. JANE LANGFORD: But even in the 18 absence of any specific findings on autopsy, it is 19 appropriate to state a diagnosis of asphyxia when you have 20 historical information that you state you are relying 21 upon. 22 DR. JOHN BUTT: Yes. And if I may add to 23 that, it may -- such information may be entirely 24 situational. For example, this is a common dilemma in 25 persons found in the water at which there may be no

219

1 historical information whatsoever; there's just a 2 situation which is hostile. 3 And frequently in pathology there is 4 nothing conclusive in the autopsy of such people, because 5 it's a very difficult diagnosis -- known to be -- so it's 6 a common issue. 7 And the situations have to be factored into 8 the historical, as well the historical material, and an 9 explanation derived in terms of the presence or absence of 10 certain anatomical findings. 11 MS. JANE LANGFORD: And this harkens back 12 to our -- the start of our cross-examination when we 13 talked about the importance of having a format of an 14 autopsy report that allows a pathologist to provide that 15 kind of explanation, including the circumstances where, in 16 your example, the child was found, and that would be 17 somewhere in the water; or, alternatively, information 18 provided to the pathologist from the police? 19 DR. JOHN BUTT: Yes. 20 MS. JANE LANGFORD: And you -- that's the 21 kind of thing that you would want to see in a more 22 detailed autopsy report? 23 DR. JOHN BUTT: That's correct. 24 MS. JANE LANGFORD: But there would be 25 nothing inappropriate of an explanation of that sort,

220

1 being asphyxia, based on historical information? 2 DR. JOHN BUTT: As long as the factors 3 that I have -- that are here, that you read out, are 4 explained, then I have no problem with it. 5 MS. JANE LANGFORD: And the factors being 6 that the diagnosis of asphyxia on the pathological 7 findings alone is often elusive if not -- 8 DR. JOHN BUTT: Yes. 9 MS. JANE LANGFORD: -- impossible? 10 DR. JOHN BUTT: I mean, all these things 11 that -- that I've stated in the last paragraph, on page 8, 12 are important. And the relationship of the historical and 13 circumstantial features to the -- to what is available at 14 the autopsy, and not available, in terms of negative 15 findings, should be explained if -- if there is being a 16 conclusion -- if there is a conclusion being made. 17 If the thing is being left at 18 unascertained, for example, it still deserves an 19 explanation. 20 MS. JANE LANGFORD: Which lends itself to 21 the recommendation of a more elaborate post-mortem report 22 than we currently have in Ontario? 23 DR. JOHN BUTT: I agree. 24 MS. JANE LANGFORD: I want to turn to a 25 new topic and that is the role of clinical opinions and

221

1 how they inform the work of the pathologist at the post- 2 mortem examination. And I'm going to start with you, Dr. 3 Crane, if I can. 4 We heard evidence from Dr. Pollanen early 5 in this Inquiry, and he testified that it is essential 6 that a pathologist be -- and what he said -- "maximally 7 informed" prior to a post-mortem examination. 8 And I take it you would agree with that? 9 DR. JACK CRANE: Yes, I would. 10 MS. JANE LANGFORD: And he defined 11 "maximally informed" as the context of the case, and he 12 included in the context of the case, the medical history 13 of the deceased. 14 DR. JACK CRANE: Yes. 15 MS. JANE LANGFORD: And you agree with 16 that? 17 DR. JACK CRANE: Yes. 18 MS. JANE LANGFORD: And I assume you would 19 agree with me that the medical or clinical history of a 20 deceased child may well direct a pathologist to consider 21 certain natural diseases or conditions that might not 22 otherwise be on the radar of the pathologist? 23 DR. JACK CRANE: That's correct. 24 MS. JANE LANGFORD: And I take it you 25 would also agree that the clinical history of the deceased

222

1 child may also indicate the necessity of certain ancillary 2 tests? 3 DR. JACK CRANE: Yes, that's right. 4 MS. JANE LANGFORD: For example, 5 biochemical testing, toxicological testing? 6 DR. JACK CRANE: Yes. 7 MS. JANE LANGFORD: And a pathologist can 8 gain from the clinical experience of a physician who has 9 considered a particular injury mechanism or a condition in 10 his practice? 11 DR. JACK CRANE: Yes, that's correct. 12 MS. JANE LANGFORD: And what I mean by 13 that, and perhaps it would be fair to give an example. A 14 pediatric emergentologist, for example; that person may 15 have tremendous experience assessing the presenting 16 symptoms and corelating those symptoms to various life- 17 threatening pediatric conditions? 18 DR. JACK CRANE: Yes. 19 MS. JANE LANGFORD: And advice from 20 emergentologist that the particular presentation of an 21 infant may well suggest a particular natural disease or a 22 particular condition would be something that would be 23 helpful to a pathologist to know? 24 DR. JACK CRANE: Yes, it would. 25 MS. JANE LANGFORD: And, I take it, you

223

1 would agree with me that the assessments of the clinicians 2 who treated a -- a deceased child have a high degree of 3 reliability insofar as the clinical history of the 4 deceased child goes? 5 DR. JACK CRANE: Yes, I think they can. 6 I'm just a little bit reluctant because sometimes the 7 information we get from clinicians may not be entirely 8 accurate or they may make conclusions that I may not 9 necessarily agree with. I certainly am interested to know 10 what -- what they think, but that doesn't mean to say that 11 I would, slavishly, simply agree with them. 12 And there may very well be a requirement to 13 discuss a finding with them in case we -- there may be 14 some disagreement over something. 15 MS. JANE LANGFORD: I take it you're 16 referring to the importance of the pathologist to arrive 17 at an independent conclusion based on the pathology 18 findings at post-mortem? 19 DR. JACK CRANE: Yes, and -- and one (1) 20 example -- for example, would -- would be injuries. 21 Clearly, the emergency physicians have probably got a lot 22 of expertise in dealing with -- with live people and 23 assessing injuries, but their interpretation of an injury 24 may be different from my interpretation. 25 So I might want to discuss with them how

224

1 they thought an injury was sustained to see if it accords 2 with my views or -- so as I say, I wouldn't necessarily 3 agree, slavishly, with everything they might say, but I'd 4 be interested in their views and comments, absolutely. 5 MS. JANE LANGFORD: You would -- you would 6 interested and, indeed, in an ideal situation you would be 7 folly to not consult and be -- and -- and hear from those 8 clinicians as to what their views are? 9 DR. JACK CRANE: Yes, I think that's 10 right. 11 MS. JANE LANGFORD: All right. And part 12 of the reason of that is that although you've fairly noted 13 that you might not agree with them, and they may be 14 mistaken in their views, at least from your percep -- 15 perspective, they are objective assessments from qualified 16 medical practitioners? 17 DR. JACK CRANE: Yes. And they may have 18 more expertise than the pathologist in relation to the 19 presentation of something. The time it comes to my 20 office, it -- it's a bit late, but how something presents 21 may very well have importance, and the clinicians may be 22 able to help with that. 23 MS. JANE LANGFORD: And it has -- helps 24 you, for example, assess the history that you've received 25 from the police, which may well be a live history in the

225

1 sense of the facts surrounding the infant when the infant 2 was still alive? 3 DR. JACK CRANE: Yes, that's correct. 4 MS. JANE LANGFORD: So I want to turn, 5 just for an example of -- of this, to the Ty -- Tyrell 6 case. And we'd like to look at the overview report, which 7 is -- I think it might be Tab 38, but I'm not 100 -- 8 DR. JACK CRANE: Yes, it is. 9 MS. JANE LANGFORD: Okay, thank you. Tab 10 38 of your case specific binder, and that's PFP144019, 11 Volume 2 -- Tab 38, Volume 2. 12 DR. JACK CRANE: Volume 1. 13 COMMISSIONER STEPHEN GOUDGE: Yes, it is 14 Volume 1, I think. 15 16 (BRIEF PAUSE) 17 18 CONTINUED BY MS. JANE LANGFORD: 19 MS. JANE LANGFORD: And I want to continue 20 -- consider for a moment the clinical opinions that were 21 available to Dr. Smith in this case when he assessed young 22 Tyrell. So -- and I'm not sure, sir, whether you've had 23 an opportunity to read the entire overview report, but I'm 24 taking you to certain paragraphs in it. These opinions 25 are expressed in a variety of places in the overview

226

1 report. 2 I'm just going to specific ones for the -- 3 for your assistance -- 4 DR. JACK CRANE: Yeah. 5 MS. JANE LANGFORD: -- more than anything 6 else. So if we can start, please, at page 19, paragraph D 7 at the top of the page. You'll see reference, sir, to Dr. 8 Alex Levin, who is identified as a Hospital for Sick 9 Children ophthalmologist. You see that? 10 DR. JACK CRANE: Yes, I do. 11 MS. JANE LANGFORD: And you'll see that 12 Dr. Levin apparently opined that there were nonspecific 13 retinal haemorrhages in this child's eyes. Retinal 14 haemorrhages were, quote: 15 "One of the signs that may -- that one 16 may see in non-accidental injury." 17 DR. JACK CRANE: Yes. 18 MS. JANE LANGFORD: Do you see that? And 19 so an ophthalmologist, of course, would be one (1) of the 20 types of clinicians that may have expertise in looking at 21 live children and the findings that one would -- would 22 note an injury of live children? 23 DR. JACK CRANE: Yes. 24 MS. JANE LANGFORD: It's not uncommon to 25 have access to opinions from an ophthalmologist --

227

1 pediatric ophthalmologist? 2 DR. JACK CRANE: No. Can I maybe just 3 comment on this, I mean -- 4 MS. JANE LANGFORD: Certainly. 5 DR. JACK CRANE: If you go onto the next 6 paragraph, there's the reference to shaken baby, and there 7 -- there was a view, as you were probably aware at one (1) 8 time, that shaken baby was a condition associated with 9 subdural haemorrhage, brain injury, and haemorrhages in 10 the eyes, sort of regarded as a triad almost. 11 Again, there's some doubt being cast on 12 that. We do know that retinal haemorrhages occur with 13 trauma to the head from whatever cause. So while it may 14 be a sign of non- accidental injury, it's just a sign of 15 head injury. 16 So -- so he said to me, This indicated non- 17 accidental injury? That would be an opinion that I -- I 18 wouldn't necessarily agree with. 19 MS. JANE LANGFORD: Fair enough. And to 20 be fair to you, I'm going to come back to the debate on -- 21 on this injury; on this sort of head injury and short fall 22 injuries. And I take your comments. 23 And by taking you here, what I am 24 attempting to illustrate to you is not so much whether you 25 agree with these opinions, 'cause I think fairly you've

228

1 indicated on a number of these opinions, that you don't 2 agree. 3 But the very existence of an 4 ophthalmologist in this case, at the Hospital for Sick 5 Children, who was on the record suggesting that -- fair 6 enough, that -- that retinal haemorrhages were one (1) of 7 the signs that may -- one (1) may see in a non-accidental 8 death, and that was an opinion available to Dr. Smith, and 9 it was appropriate for him to, at least, be informed by 10 Dr. Levin's clinical opinion? 11 DR. JACK CRANE: Yes, indeed. 12 MS. JANE LANGFORD: All right. If we turn 13 to page 56, please, paragraph 116. And, sir, this is a 14 brief reference to the opinion of Dr. Marcellina Mian, who 15 is a member of the Child Abuse Team at the Hospital for 16 Sick Children. 17 And you'll see here, Dr. Mian offered the 18 opinion that Tyrell suffered trauma that was not explained 19 by the relatively trivial fall that this child 20 experienced. 21 DR. JACK CRANE: Yes, I see that. 22 MS. JANE LANGFORD: And you've -- I think 23 -- I think you, or one (1) of you in any event, did speak 24 to the fair -- fairly that the dangers of, potentially, 25 those who work in the child abuse field -- pathologists

229

1 over-relying on their opinions -- but nonetheless, it's 2 not uncommon for a pathologist to have the opinion of a 3 clinician who specializes in child abuse available to them 4 prior to a post-mortem examine? 5 DR. JACK CRANE: We wouldn't always have 6 it beforehand, but you may get it, you know, prior to 7 completing your report, you know. 8 MS. JANE LANGFORD: And again, it would be 9 appropriate for a pathologist to at least consider that 10 the opinion and the assessment of one (1) of these 11 clinicians? 12 DR. JACK CRANE: Yes, indeed. 13 MS. JANE LANGFORD: And on that same page, 14 you'll see the reference to the interview with Dr. Cox. 15 And we know, sir, that Dr. Cox -- Dr. Peter Cox is the 16 director -- or was the director of the Critical care Unit 17 at the Hospital for Sick Children. 18 And in this paragraph 117, see that Dr. Cox 19 suggested that it was unusual for the injury of the type 20 described by Tyrell's mother to cause the severity of the 21 brain injury. 22 According to Dr. Cox: 23 "It's unusual for falls of this -- or 24 falls from this height would be 25 associated with any -- inaudible -- as

230

1 severe as this one." 2 And I take it to be any injury as severe as 3 this one. 4 DR. JACK CRANE: I see that. 5 MS. JANE LANGFORD: So this is Dr. Peter 6 Cox who's a intensivist, a pediatric intensivist, opining 7 that these injuries were unusual given the explanation 8 provided. Again, an opinion from a pediatric intensivist 9 would be one (1) that would be appropriate for a 10 pathologist to consider? 11 DR. JACK CRANE: Yes. Could I just -- and 12 I don't want to be difficult -- 13 MS. JANE LANGFORD: No, no. Absolutely. 14 DR. JACK CRANE: -- just comment on -- on 15 both 116 and 117. And what I don't know is -- as a 16 pathologist, is that what trivial fall, for example, Dr. 17 Mian was talking about. What fall from the height Dr. Cox 18 (phonetic) was talking about, so it has to sometimes be 19 put into context. 20 MS. JANE LANGFORD: Absolutely. 21 DR. JACK CRANE: And -- 22 MS. JANE LANGFORD: And actually, I 23 promise you, I will come back to you on this exact issue, 24 which is differing accounts of history -- 25 DR. JACK CRANE: Yes.

231

1 MS. JANE LANGFORD: -- and -- and how a 2 pathologist reconciles that. I promise to come back to 3 that; that's a good point. 4 Turning to page 57, paragraph 121, at the 5 bottom of -- of that page, and I should -- I should say, 6 to be fair to some of these physicians, I believe these 7 are auditory -- audit -- like recordings of their 8 statements, which is why they're full of "ums" and "ahs," 9 but I don't think that these physicians typically speak in 10 this manner. 11 DR. JACK CRANE: They might be Buddhists. 12 MS. JANE LANGFORD: But it's not a fair 13 reflection of their -- the way they speak. 14 So, Dr. Rutka, sir, is a neurosurgeon also 15 at the Hospital for Sick Children, and you'll see in 16 paragraph 121 that Dr. Rutka is asked about whether -- 17 Tyrell sustaining these injuries from jumping off a couch 18 and he advises that: 19 "It would be a considerable height, I 20 think to build up sufficient velocity to 21 cause significant brain deceleration 22 when the impact occurred. I just think 23 that the description of the story as a 24 fall from a couch would not be 25 sufficient enough, but rather a fall

232

1 would have to be as part of a mechanism 2 much higher than that; maybe a distance 3 of 6 to 9 feet onto a very hard surface 4 if the fall occurred, and in such a way 5 that the head was the primary contact 6 site with a hard -- hard object and that 7 distance -- that building up of an 8 acceleration and velocity would create, 9 in part, the brain injury that we saw in 10 Tyrell." 11 So again, this is Dr. Rutka, the 12 neurosurgeon at the Hospital for Sick Children, expressing 13 some doubt that the explanation that Ty -- was given about 14 Tyrell's injuries -- expressing doubt of that explanation. 15 DR. JACK CRANE: Yes. 16 MS. JANE LANGFORD: And again, a 17 neurosurgeon would be an appropriate -- it would be 18 appropriate for the pathologist to make reference and 19 consider the opinion of the Pediatric Neurosurgeon in a 20 case of this nature? 21 DR. JACK CRANE: Yes. 22 MS. JANE LANGFORD: And, finally, pa -- 23 page 123, paragraph 261; this is a paragraph I believe 24 you've been taken to previously. It expresses the opinion 25 of Dr. Becker (phonetic), who was the neuropathologist

233

1 involved in this case at the Hospital for Sick Children, 2 and you'll see the last sentence of that paragraph: 3 "The extent of the neuropathology 4 suggest the force of impact to be 5 greater than one generated by a 6 household fall." 7 DR. JACK CRANE: Yes. 8 MS. JANE LANGFORD: And, again, and -- and 9 I -- I take it, of all of these opinions and -- and asking 10 you whether it's appropriate for a pathologist to consider 11 the clinical opinions, I assume you'd -- you'd agree that 12 of all of them, the most appropriate consultation and one 13 in which would have the highest level of consideration for 14 a pathologist is, indeed, the neuropathologist in a case 15 of a head injury. 16 DR. JACK CRANE: Yes, if that 17 neuropathologist was -- had an expertise in dealing with 18 trauma neuropathology. Sometimes neuropathologists spend 19 their time doing tumours and things, so... 20 But certainly my practice is that we get 21 the neuropathologist to comment on the injuries, to let us 22 know what the injuries are. Their interpretation, they 23 usually leave to us, but I see what Dr. Becker is saying, 24 yes. 25 MS. JANE LANGFORD: Fair enough. And --

234

1 and to be fair, sir, and I think in the earlier paragraphs 2 we'll see that, in fact, Dr. Becker was invited to provide 3 and opinion in this case -- 4 DR. JACK CRANE: Yes. 5 MS. JANE LANGFORD: -- and to express his 6 opinion. And you -- you can assume, sir, I take it, that 7 a pediatric neuropathologist at the Hospital for Sick 8 Children would not only see neuropathology of tumours, but 9 would also see neuropathology involving injuries. 10 DR. JACK CRANE: Yes. 11 MS. JANE LANGFORD: Now, without wishing 12 to suggest that the pathologist ought not arrive at an 13 independent conclusion, you agree that it was appropriate 14 for Dr. Smith to have regard to the opinions of his 15 colleagues at The Hospital for Sick Children and all of 16 these expertise? 17 DR. JACK CRANE: Yes, I do. 18 MS. JANE LANGFORD: All right. And I 19 think you've suggested that it would be folly for him to 20 have ignored their opinions prior to doing his post-mortem 21 examination? 22 DR. JACK CRANE: That's correct. 23 MS. JANE LANGFORD: All right. And would 24 you also agree that the views of these clinicians as to 25 the mechanism of Tyrell's injuries would appropriately

235

1 raise Dr. Smith's index of suspicion as he approached this 2 post-mortem examination? 3 DR. JACK CRANE: Yes, I do. I mean, I 4 would say from the outset that it would be -- it was 5 perfectly appropriate for this death to be treated 6 suspiciously. And I think it was right, as well, for the 7 clinicians to express concern as well; I think that was 8 appropriate. And I think it was right for Dr. Smith to 9 regard it as a suspicious death, yes. 10 MS. JANE LANGFORD: Fair enough. And I -- 11 I assume then you would agree that any recommendations we 12 make about information that a pathologist should or should 13 not receive prior to a post-mortem must include the 14 clinical information regarding the treatment of the child 15 prior to his or her death? 16 DR. JACK CRANE: Yes. I think may have 17 indicated that our practice is we won't do the autopsy 18 unless we have the clinical information available to us. 19 MS. JANE LANGFORD: And it would be 20 expected that you would review the clinical information 21 with a fair degree of diligence? 22 DR. JACK CRANE: Yes. We may not get the 23 opinions before we do the autopsy, but certainly we'd be 24 considering opinions before completing our report. What 25 we usually get beforehand is the details of what the

236

1 patient was like, their treatment and what happened to 2 them. 3 COMMISSIONER STEPHEN GOUDGE: Is there any 4 differential importance attached by the pathologist, Dr. 5 Crane, to the neuropathology opinion as opposed to the 6 clinical opinions? 7 DR. JACK CRANE: Well, I suppose it very 8 much depends on how trusting or how reliant you are on 9 your clinical colleagues or pathological colleagues. 10 I mean, if -- if you have a colleague who 11 has a great expertise, for example, in -- in trauma, in 12 head trauma, you might -- you know, and you're a surgeon, 13 for instance, you might pay a lot of attention to what 14 they're saying. 15 COMMISSIONER STEPHEN GOUDGE: But in a 16 case like this where it's head injury, wouldn't the 17 neuropathologist's opinion count for more than the 18 clinician's opinion in the mind of the pathologist doing 19 the report? Or is that not right? 20 DR. JACK CRANE: Well, where I use 21 neuropathology, as I say, is that I rely on them to tell 22 me what the pathology in the brain is. And I see it as my 23 job to try then to interpret that, taking account not just 24 the brain, but the case as a whole. In other words, are 25 there any other marks on the body, are there any other

237

1 injuries. 2 So, I mean, I will -- I will take account 3 of opinions the neuropathologist has, but I always see it 4 as my duty, at the end of the day, to interpret the 5 findings. 6 COMMISSIONER STEPHEN GOUDGE: Well, take 7 the fundamental finding here of evidence or not of 8 contrecoup. Is that for the pathologist, most 9 importantly, or for the neuropathologist? 10 DR. JACK CRANE: Well, it's interesting 11 because in this case, Dr. Becker said there wasn't 12 evidence of contrecoup. Now -- 13 COMMISSIONER STEPHEN GOUDGE: That is why 14 I asked, obviously. 15 DR. JACK CRANE: -- from my interpretation 16 of reading the report, I was quite satisfied that there 17 was evidence of contrecoup. So I think if my 18 neuropathologist had said there wasn't contrecoup, I think 19 I would be going back to him and saying, Well, explain to 20 me how there is a large bruise on the left side of the 21 back of the head and there's contusion to the right 22 frontal lobe. 23 COMMISSIONER STEPHEN GOUDGE: I guess what 24 I was getting at is one (1) way to rely on a 25 neuropathologist would be in terms of interpretation of

238

1 the histology of the brain. 2 Is that where you would look to the 3 specialty to inform you as a pathologist signing the 4 report, as opposed to the evidence of contrecoup that you 5 just recited? 6 DR. JACK CRANE: Yes. Because part of the 7 difficulty may be that the neuropathologist gets the brain 8 to look at, but he may not have access to all the 9 additional material that the pathologist had; in other 10 words, the evidence of the bruising on the scalp or -- and 11 so forth. 12 Now I don't know whether -- 13 COMMISSIONER STEPHEN GOUDGE: You just do 14 not know what was supplied to the neuropathologist -- 15 DR. JACK CRANE: That's right. 16 COMMISSIONER STEPHEN GOUDGE: -- in this 17 case? 18 DR. JACK CRANE: But that's why it may be 19 important because the neuropathologist may be just simply 20 commenting on the brain, as such, and not on the other 21 findings. 22 23 CONTINUED BY MS. JANE LANGFORD: 24 MS. JANE LANGFORD: Right. But the 25 neuropathologist then -- in a hypothetical situation --

239

1 providing an opinion to the pathologist, who does have all 2 of the other findings, could appropriately put the 3 neuropathologist's opinion in context and could 4 appropriately, therefore, rely on that isolated brain 5 analysis and put that in context and put it together and 6 fully rely on that analysis? 7 DR. JACK CRANE: Yes, he could. 8 MS. JANE LANGFORD: And I should point out 9 sir, and I -- I take it's -- it's human nature that when 10 you know a physician and you've worked with that physician 11 and that you have a high degree of respect for the 12 physicians within, for example, your office or in this 13 case, a hospital, that allows you to, at the very least, 14 know the expertise of that particular physician? 15 DR. JACK CRANE: Yes. 16 MS. JANE LANGFORD: And it allows you to 17 know the extent to which that physician may or may not 18 have had experience addressing some of the issues that you 19 have -- have to address in a -- in a particular case. 20 DR. JACK CRANE: Yes. 21 MS. JANE LANGFORD: And so, you can place 22 more or less reliance on the opinions that you receive, 23 depending on how well you are aware of the expertise of -- 24 of the physician who's giving you the opinion. 25 DR. JACK CRANE: Yes, that's correct.

240

1 MS. JANE LANGFORD: Now, I promised I'd 2 come back to the issue of differing accounts of history on 3 this case, Dr. Crane, and I think that now's an 4 appropriate time to do that. 5 And I thought I would start by looking at 6 your report on the Tyrell case, which is Tab 36, and it's 7 PFP135538, and I'm looking at page 5. 8 DR. JACK CRANE: Yes, I have it. 9 MS. JANE LANGFORD: And I'm specifically 10 looking at the sec -- page 5 -- the second paragraph under 11 "commentary". 12 DR. JACK CRANE: Yes. 13 MS. JANE LANGFORD: And there you state: 14 "It is clearly important that medical 15 experts, when offering opinions on 16 injuries, consider all possible 17 mechanisms, except, perhaps, those which 18 might be regarded as remote and 19 fanciful. When a particular mechanism 20 is proposed, the expert has a 21 responsibility to ensure that those 22 reading his or her report and those 23 questioning the expert in Court, 24 understand fully the reasons why other 25 mechanisms or causes have been rejected.

241

1 In many instances, it may not be 2 possible, from the pathological evidence 3 alone, to offer one (1) cause as being 4 more likely than any other". 5 Now, looking at that statement, Dr. Crane, 6 it's true that sometimes a pathologist receives more than 7 one (1) explanation for a particular injury. 8 DR. JACK CRANE: That's correct. 9 MS. JANE LANGFORD: And sometimes those 10 explanations are from the same source, and sometimes they 11 are from different sources. 12 DR. JACK CRANE: That's correct. 13 MS. JANE LANGFORD: And looking, then, at 14 the Tyrell case as an example of that; looking at the 15 Overview Report, which is PFP144019. 16 DR. JACK CRANE: And just the Tab again? 17 MS. JANE LANGFORD: It's Tab 38. Sorry, I 18 was just looking for that. Tab 38? 19 DR. JACK CRANE: Yes. 20 MS. JANE LANGFORD: And I'm just going to 21 take you to some of the paragraphs in the Overview Report 22 where the history that was available to those treating 23 Tyrell, was given. 24 And I'll begin at Paragraph 10, of Page 9 - 25 - Page 8. And you'll see at Paragraph 10:

242

1 "According to Cheryl McMillan, a nurse 2 at the Emergency Department at the 3 Hospital for Sick Children, on January 4 19, 1998, Maureen told her that on the 5 night of January 18, 1998, Tyrell was 6 running around the house, and had 7 slipped and fallen, and hit his head on 8 the floor." 9 And I take it, sir, that receiving a 10 history, or a source of an explanation from a nurse at the 11 Emergency Department is not the -- not an uncommon 12 circumstance? 13 DR. JACK CRANE: Yes, you -- you might -- 14 you might get that. Yes. 15 MS. JANE LANGFORD: Okay. And Paragraph 16 11, 17 "According to Christina Kim, a nurse at 18 the Emergency Department at The Hospital 19 for Sick Children, on January 19, 1998, 20 Maureen told her, in response to being 21 asked how Tyrell got the bump on his 22 head, that Tyrell roughhouses and fell 23 the previous day. Miss Kim was under 24 the impression that the injury occurred 25 during the day".

243

1 At paragraph 12: 2 "According to Dr. Peter Cox, Clinical 3 Director of the Clinical Care Unit at 4 the Hospital for Sick Children, when 5 Tyrell was brought into the unit on 6 January 19th, the reported history was 7 that Tyrell had been jumping on the 8 couch at approximately 23:00 or 23:30 9 the night before and had been found by 10 Maureen in the early hours of January 11 19, '98 with vomit coming out of his 12 nose. Maureen told Dr. Cox that Tyrell 13 had been jumping on the couch in the 14 livingroom and had fallen and bumped his 15 head. Dr. Cox could not recall whether 16 Maureen told him that Tyrell fell 17 against the table or onto a carpeted 18 floor." 19 And at paragraph 13: 20 "According to the social work, initial 21 and discharge report of Ms. MacLachlan, 22 Maureen told her that the following 23 occurred on January 18th. The history 24 given by Caretaker Maureen was that the 25 previous evening this perfectly healthy

244

1 three (3) year old had fallen after 2 jumping off a couch, losing his footing, 3 and he banged his head on a marble 4 coffee table or tile floor. He then 5 rose and fell forward striking his head. 6 Maureen added that she went to help the 7 child and he fell forward onto the floor 8 again. He cried, but was otherwise 9 well, initially. However, he was found 10 unresponsive at about 4:00 a.m." 11 And looking, sir, at the next page, 12 paragraph 15: 13 "According to Dr. Alik Kornecki, a 14 fellow at the CCU, Maureen told him that 15 on the night of January 18, Tyrell was 16 playing at home and fall down, but she 17 could not remember if he got hit in the 18 head. Maureen did not mention any 19 significant head trauma, but she 20 suspected some head trauma when he fall 21 down and hits the table, if Dr. Kornecki 22 remember, and Dr. Kornecki did not 23 remember if it was a table." 24 And then, finally, sir, if I can take you 25 to page 22, paragraph 42:

245

1 "According to Ms. Town-Parsons, on 2 January 19th, 1998 she met Maureen in 3 the CCU waiting room. When she first 4 met Maureen, she learned Tyrell's 5 background. Maureen later told Ms. 6 Town-Parsons, Dr. Kornecki, and Dr. Cox 7 that Tyrell had fallen off the couch the 8 previous night and must have hit his 9 head in some way." 10 And he goes on to talk about what happened 11 la -- next. So, sir, you would agree with me that those 12 explanations, as recorded by -- in the hospital records, 13 are -- are somewhat different as between themselves. 14 DR. JACK CRANE: Yes, they are. 15 MS. JANE LANGFORD: We go from Tyrell 16 falling off the couch to him jumping from couch to couch. 17 We have explanations of Tyrell hitting his head on the 18 floor, on a table, and not hitting his head at all. 19 DR. JACK CRANE: Yes. 20 MS. JANE LANGFORD: Those are all 21 different. 22 DR. JACK CRANE: Yes, they are. 23 MS. JANE LANGFORD: And this sort of 24 conflicting factual presentation presents particular 25 challenges to pathologists, doesn't it?

246

1 DR. JACK CRANE: Yes. I mean it's not 2 uncommon that we get different sort of versions of events, 3 that's correct. 4 MS. JANE LANGFORD: And it's particularly 5 difficult, though, when one (1) explanation might be 6 sufficient to explain the -- the injury as a -- as an 7 accident, whereas another might not be sufficient. 8 DR. JACK CRANE: That's correct. 9 MS. JANE LANGFORD: That's a challenge -- 10 DR. JACK CRANE: It is. 11 MS. JANE LANGFORD: -- for pathologists. 12 And I -- I think you alluded to this in your evidence, 13 although perhaps not expressly asked; it's not for the 14 pathologist to reconcile the differing factual accounts. 15 DR. JACK CRANE: That's correct. 16 MS. JANE LANGFORD: And I -- I believe 17 what you suggested was what a pathologist should do in 18 that circumstance is simply advise his opinion on each of 19 the various accounts. 20 So, for example, I think you said you would 21 say, This explanation is sufficient to explain the 22 pathological findings; that explanation is not sufficient 23 to explain the pathological findings. 24 DR. JACK CRANE: Yes. 25 MS. JANE LANGFORD: And you rely on the

247

1 police to investigate those factual circumstances, do you 2 not, sir? 3 DR. JACK CRANE: Yes, we do. 4 MS. JANE LANGFORD: And you equally rely 5 on lawyers, whether it be the Crown or the Defence, to 6 present the differing factual explanations to the Court? 7 DR. JACK CRANE: That's correct. 8 MS. JANE LANGFORD: And do you rely, 9 ultimately, on the judge or the jury to make a finding as 10 to which of those factual explanations is the most 11 credible? 12 DR. JACK CRANE: Yes. 13 MS. JANE LANGFORD: And so you would agree 14 with me that it is important for a pathologist -- if that 15 pathologist is going to be asked to provide an opinion on 16 manner of death -- that the pathologist be given all of 17 the factual explanations to consider? 18 DR. JACK CRANE: If -- if that's possible, 19 yes. 20 MS. JANE LANGFORD: And it would be 21 important to provide that information to the pathologist 22 before that pathologist has to opine on manner of death? 23 DR. JACK CRANE: Well, perhaps in the 24 ideal situation that might be the case, but often it 25 isn't.

248

1 DR. CHRISTOPHER MILROY: We don't do 2 manner of death. 3 MS. JANE LANGFORD: I will -- I will -- I 4 will -- I'll take that point, and I -- I note -- Dr. 5 Milroy, thank you. You -- you pointed out that 6 pathologists don't do manner of death, but with all re -- 7 due respect, the opinions that are being advocated -- the 8 more elaborate detailed opinions -- and the one's we've 9 seen you all issue in this case, all actually address not 10 only cause of death, but manner of death. 11 And we've seen in these cases that Dr. 12 Smith is nine (9) times out of ten (10) in the witness box 13 asked, not just about cause of death but about manner of 14 death as well? Is that fair, Dr. Milroy? 15 DR. CHRISTOPHER MILROY: The evidence goes 16 to manner of death. 17 MS. JANE LANGFORD: Fair enough. 18 DR. CHRISTOPHER MILROY: It's the way to 19 put it. It's just that we don't -- we don't give the 20 manner of death as pathologists in a coronial system. 21 That's my point. 22 MS. JANE LANGFORD: Fair enough, and 23 that's -- that's a fair point. You -- you're not 24 typically relied upon, although often sought, to provide 25 input on that determination?

249

1 DR. CHRISTOPHER MILROY: That's correct, 2 yes. 3 MS. JANE LANGFORD: All right. And sorry, 4 Dr. Crane, you were... 5 DR. JACK CRANE: What I was saying, was 6 that often at the time we produce our report, we may not 7 have all that information. So we will give an opinion to 8 the best of our ability depending on what information we 9 may have, and whether information is provided to us is 10 consistent with or matches up to the injuries we find. 11 It may be that if we do go to court on the 12 case, some other sort of scenario is put to us, and at 13 that point we may have to consider that and say, Well, on 14 reflection, having considered that, I don't think that the 15 injuries that I find are satisfactorily explained by that 16 information. So, so -- 17 MS. JANE LANGFORD: Fair enough. And just 18 to -- to step back on -- on your answer there, the first 19 comment you made, which I think is a quite a fair one (1), 20 which is by the -- at the time of your post-mortem 21 examine, and then at the time that you issue your report, 22 you may have different information? 23 DR. JACK CRANE: Yes, that's correct. 24 MS. JANE LANGFORD: And -- and new 25 information might come available from the police, for

250

1 example, in the course of the police investigation? 2 DR. JACK CRANE: Yes, that's fine. 3 MS. JANE LANGFORD: And I think you've 4 previously stated that it's perfectly appropriate for a 5 pathologist to change his or her opinion if new 6 information becomes available to -- to that pathologist? 7 DR. JACK CRANE: That's correct. 8 MS. JANE LANGFORD: And that's not an 9 uncommon circumstance? 10 DR. JACK CRANE: Yes, it does happen, yes. 11 MS. JANE LANGFORD: All right. But -- and 12 nonetheless, in recognizing that we are talking about the 13 ideal, it -- it is, perhaps, not the ideal circumstance 14 for a pathologist to be presented for the first time with 15 a possible explanation in the witness box, having not had 16 an opportunity to consider that explanation prior to that 17 moment? 18 DR. JACK CRANE: Yes. Sometimes when that 19 -- that does happen -- particularly if it's something 20 quite complex -- then normally we would ask leave of the 21 court to, perhaps, you know, go and scratch our heads, and 22 -- and think about it a while. 23 I mean, if it's something that we can 24 answer right away, one would do so, but sometimes you may 25 have to reflect on it a little bit.

251

1 MS. JANE LANGFORD: Fair -- fair enough. 2 And if you were, in fact, presented in the courtroom with 3 a new explanation, then it would be the first time anyone 4 would have heard your evidence on that particular 5 explanation? 6 DR. JACK CRANE: That would be correct, 7 yes. 8 MS. JANE LANGFORD: And in any event, 9 it's, ultimately, perfectly appropriate for a pathologist, 10 when asked in the witness box to provide an opinion on the 11 various explanations, to do so? 12 DR. JACK CRANE: Yes, I think so, yes. 13 MS. JANE LANGFORD: And you would support, 14 sir, a recommendation that if a pathologist is to have any 15 role in determining manner of death, that the pathologist 16 ought to be provided with as much of the factual 17 information concerning the explanation of injuries as 18 possible? 19 DR. JACK CRANE: Yes. 20 21 (BRIEF PAUSE) 22 23 MS. JANE LANGFORD: Mr. Commissioner, I'm 24 about to turn to a new issue that might take me a while to 25 canvass. I can continue if you wish, or I can adjourn for

252

1 the day. 2 COMMISSIONER STEPHEN GOUDGE: How are you 3 doing in terms of time? 4 MS. JANE LANGFORD: I'm going to finish 5 well within the time that -- that you've allotted me, sir. 6 COMMISSIONER STEPHEN GOUDGE: With that 7 enticement, why don't we break now, until tomorrow 8 morning. 9 MS. JANE LANGFORD: Thank you, sir. 10 COMMISSIONER STEPHEN GOUDGE: We'll 11 reconvene then at 9:30 tomorrow morning. 12 MS. JANE LANGFORD: Thank you. 13 14 --- Upon adjourning at 4:21 p.m. 15 16 Certified Correct, 17 18 19 20 21 ____________________ 22 Rolanda Lokey, Ms. 23 24 25