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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 22nd, 2007 25

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

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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 ) Aboriginal Legal Services 14 Kimberly Murray (np) ) 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 (np) ) 24 Kim Twohig ) 25

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1 APPEARANCES (cont'd) 2 3 Natasha Egan ) 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

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1 TABLE OF CONTENTS 2 Page No. 3 4 CHRISTOPHER MARK MILROY, Resumed 5 JACK CRANE, Resumed 6 JOHN BUTT, Resumed 7 8 Continued Cross-Examination Ms. Jane Langford 8 9 Cross-Examination by Mr. James Lockyer 66 10 Cross-Examination by Mr. William Carter 194 11 Cross-Examination by Mr. Jim Hauraney 204 12 13 Certificate of transcript 260 14 15 16 17 18 19 20 21 22 23 24 25

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1 2 --- Upon commencing at 9:31 a.m. 3 4 THE REGISTRAR: All rise. Please be 5 seated. 6 COMMISSIONER STEPHEN GOUDGE: Good 7 morning. Ms. Langford...? 8 9 DR. JACK CRANE, Resumed 10 DR. JOHN BUTT, Resumed 11 DR. CHRISTOPHER MILROY, Resumed 12 13 MS. JANE LANGFORD: Just as a matter of 14 housekeeping, sir, yesterday you asked me a question 15 relating an autopsy form that was -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MS. JANE LANGFORD: -- attached to the 18 Coroners Act and you'll see somewhere on your desk there 19 and you don't need to go to it now. 20 COMMISSIONER STEPHEN GOUDGE: I probably 21 just saw it. 22 MS. JANE LANGFORD: You probably did. I 23 gave you the legislative background, but just for your 24 information, it appears that, at least as far back as 25 1980 and right until 1999, there was a Form 14 attached

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1 in the regulations to the Coroners Act for pathologists 2 to use when they were conducting post-mortem examinations 3 under the Coroners Act. 4 And from our manual review of the 5 regulations that form remained consistent, at least 6 through the period 1980 to 1999, with one (1) significant 7 exception in 1992, the form was rendered bilingual. 8 I'm not able to figure out why Dr. Rasaiah 9 was using a Form 12 in 1992 -- 10 COMMISSIONER STEPHEN GOUDGE: Yeah. 11 MS. JANE LANGFORD: -- except to say that 12 there appears to have been the 1973 legislation, it was 13 Form 12. We couldn't find that form. I -- so -- and it 14 may or may not be the same but -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MS. JANE LANGFORD: -- I think Form 12 17 was the 1970s version, although we can't confirm that. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MS. JANE LANGFORD: I can also tell you 20 that in 1999 it appears the form was -- the regulation 21 was repealed with the form and it doesn't appear anything 22 was put in to replace it, so from 1999 forward there 23 doesn't appear to be any form mandated by the Coroners 24 Act, but of course, all of the cases that we're looking 25 at in this matter --

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1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MS. JANE LANGFORD: -- were in the 1980s 3 and '90s. 4 COMMISSIONER STEPHEN GOUDGE: That's 5 helpful, actually, thank you. Thank you. 6 7 CONTINUED CROSS-EXAMINATION BY MS. JANE LANGFORD: 8 MS. JANE LANGFORD: Now, Dr. Crane, I 9 promised you that we would return to the issue of short 10 distance falls and that's where I would like to go now. 11 And before I -- I speak specifically on that, we've heard 12 a lot of evidence that pediatric pathology in particular 13 is an interpretive science, do you agree with that? 14 DR. JACK CRANE: Yes. 15 MS. JANE LANGFORD: And I take it you'd 16 agree with me that whenever you have different 17 pathologists reviewing a case there is a potential for a 18 range of opinions. 19 DR. JACK CRANE: Absolutely. 20 MS. JANE LANGFORD: And that's because 21 it's an interpretation as much as a science. 22 DR. JACK CRANE: That's right. 23 MS. JANE LANGFORD: And that range of 24 opinion is -- can be both substantive, as well as in the 25 semantics.

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1 DR. JACK CRANE: Yes. 2 MS. JANE LANGFORD: You recall yesterday 3 we went through together the views expressed by the 4 various clinicians and pathologists at the Hospital for 5 Sick Children regarding Tyrell's injuries. 6 DR. JACK CRANE: Yes. 7 MS. JANE LANGFORD: And youĂll recall 8 that we saw the opinion of Dr. Levan (phonetic), the 9 Ophthalmologist, Dr. Cox, the Intensivist, Dr. Mian 10 (phonetic), the scan team physician, Dr. Rutka, the 11 Pediatric Neurosurgeon, and Dr. Becker, the 12 Neuropathologist, do you recall that? 13 DR. JACK CRANE: Yes. 14 MS. JANE LANGFORD: And, of course, all 15 of those individuals coming from the perspective of their 16 expertise did not believe that the explanation that they 17 were aware of was sufficient to explain the injuries 18 Tyrell suffered. 19 DR. JACK CRANE: Yes. 20 MS. JANE LANGFORD: Now, you know this 21 case from your review that there is also, to be fair, a 22 cadre of physicians with opposing views, if you will. 23 DR. JACK CRANE: Yes. 24 MS. JANE LANGFORD: And I want to take 25 you to those views so that we can explore the range of

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1 opinions that were indeed issued in this case. So if we 2 can turn to the overview report of Tyrell, and that, I 3 believe, is at Tab 38 of your binder, and in -- we're 4 looking at PFP144019. 5 DR. JACK CRANE: Yes, I have that. 6 MS. JANE LANGFORD: All right. If you 7 could look first at page 200 and -- oh, sorry, 123. 8 DR. JACK CRANE: Yes. 9 MS. JANE LANGFORD: And you'll see at 10 paragraph 262, there's a reference there to Dr. Robin 11 Humphries, Neurosurgeon in Chief at the Hospital for Sick 12 Children having been asked to provide an opinion. 13 A clinical surgical -- neurosurgical 14 opinion on the events leading to the death of Tyrell, and 15 to examine the issues of accidental versus non-accidental 16 head injury. Do you see that? 17 DR. JACK CRANE: I do. 18 MS. JANE LANGFORD: All right. And if 19 you turn, I think, to the next page, and look at the 20 heading under sub (c) "Timing and Mechanism of Injury", 21 and I'm just going to read out what's written there. 22 This is Dr. Humphries, the Neurosurgeon's opinion: 23 "If the description of what happened to 24 Tyrell when he fell from the couch is 25 in any way accurate, then he was in

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1 motion when he tripped and fell, 2 striking his head against a hard, fixed 3 object, marbled coffee table or tiled 4 floor. And he then struck his head 5 again when he tumbled to the floor 6 before he was picked up by his 7 guardian. It is thus possible that he 8 sustained two (2) blows to the head. 9 Although the focus of the clinical and 10 pathological examinations of the 11 intradural contents and brain tissues 12 is in the region of the right frontal 13 and temporal lobes, it is noted that 14 there is soft tissue swelling at two 15 (2) opposite polar sites in his scalp. 16 The area of most marked involvement is 17 above the right eyebrow, the more 18 superior part of the right forehead, 19 and a small amount in the right 20 temporal scalp. In addition, there is 21 a dark red contusion of the left 22 occipital scalp over an area measuring 23 8.5 times 6 centimetres. It is of 24 interest therefore, that while there is 25 no pathological evidence of a

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1 contrecoup brain injury or skull 2 fracture, there is evidence of skull 3 contusions that while not occurring in 4 the contrecoup fashion of brain injury, 5 are indeed at opposite poles of the 6 head circumference. These scalp 7 contusions in my view represent two (2) 8 separate insults to the skull, and 9 could thus be in keeping with the two 10 (2) separate blows to the head, created 11 first by striking it on the table or 12 floor, and then secondly, after again 13 falling to the floor." 14 DR. JACK CRANE: Yes. 15 MS. JANE LANGFORD: And that's Dr. 16 HumphriesĂ opinion, and -- and to be fair to you, sir, I 17 think that's fairly consistent with the evidence that you 18 have given in your opinion on the nature of Tyrell's 19 injuries, is that correct? 20 DR. JACK CRANE: Well, I think -- and he 21 is discounting contrecoup in that, and as you know, I 22 feel that there was evidence of contrecoup. But in other 23 aspects, I think he -- he seems to think that it's 24 consistence with perhaps a couple of blows in the way 25 that I was describing, yes.

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1 MS. JANE LANGFORD: Fair enough. And I 2 should pause there and note that Dr. Humphries is of 3 course a colleague of Dr. Rutka the neurosurgeon who 4 opined that Tyrell's injuries were not explained by the 5 story given. 6 And of course Dr. Rutka and Dr. Humphries 7 are quarter colleagues, both at the Hospital for Sick 8 Children. 9 DR. JACK CRANE: Yes. 10 MS. JANE LANGFORD: So we can make a note 11 of the lack of institutional bias in this case, can we 12 not? 13 DR. JACK CRANE: Well, I -- I think 14 they're -- they're both independent experts on giving 15 their own independent judgment on the case, yes. 16 MS. JANE LANGFORD: Not withstanding the 17 fact that they're both from the same institution? 18 DR. JACK CRANE: Yes. I mean I would 19 hope just because people are from the same institution, 20 you know, that they're not going to give opinions that -- 21 that they don't agree with. 22 MS. JANE LANGFORD: That's right. And -- 23 and you don't always see individuals at the same 24 institution rendering the same opinion, because they do 25 recognize they should come to an independent view?

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1 DR. JACK CRANE: Absolutely. 2 MS. JANE LANGFORD: All right. Turning 3 then to page 112, we -- you'll see in paragraph 241, a 4 reference to Dr. Patricia Horsham, emergency pediatrician 5 at the Children's Hospital of Eastern Ontario in Ottawa. 6 And you'll see there that she was asked 7 for an opinion with respect to Tyrell's death. Do you 8 see that, sir? 9 DR. JACK CRANE: Yes, I do. 10 MS. JANE LANGFORD: And if we turn to 11 page 113, paragraph 243, and looking at the second 12 paragraph, you'll see that Dr. Horsham says: 13 "Though it is reported to be an 14 infrequent occurrence, there has been 15 fatal falls inside the home that I have 16 known about." 17 Do you see that, sir? 18 DR. JACK CRANE: I see that, yes. 19 MS. JANE LANGFORD: And then over on -- 20 paragraph -- page 116, paragraph 249, this is Dr. 21 Horsham's conclusion, and looking at the second paragraph 22 quoted there, Dr. Horsham says: 23 "After conclusion, and looking at the 24 second paragraph quoted there, Dr. 25 Horsham says:

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1 "After reviewing all of the facts of 2 this case, I conclude that this four 3 (4) year old boy fell and struck his 4 head on a hard surface resulting in the 5 injuries demonstrated. His demise was 6 due to the significant delay in 7 realizing the degree of the trauma for 8 four (4) hours after the fall." 9 He goes on to provide an opinion of the 10 medical treatment there. 11 So, you will agree with me that that's Dr. 12 Horsham offering her opinion that, indeed, Tyrell's 13 injuries were adequately explained by the story that was 14 provided by the caregiver. 15 DR. JACK CRANE: Yes. 16 MS. JANE LANGFORD: And Dr. Horsham is a 17 pediatrician, therefore, holding a contrary view to the 18 clinicians, Drs. Cox and Mian, at the Hospital for Sick 19 Children, who were also pediatricians. 20 DR. JACK CRANE: Yes. 21 MS. JANE LANGFORD: Turning to page 117, 22 sir, paragraph 251, we see that a Dr. Jan Leestma, a 23 consulting neuropathologist from Illinois Masonic 24 Hospital, provided an opinion on Tyrell's death in this 25 case as well.

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1 You see that? 2 DR. JACK CRANE: I see that. 3 MS. JANE LANGFORD: And if you turn to 4 page 120, looking at the very last sentence at the top of 5 the page in the quotation there, you'll see that Dr. 6 Leestma, the neuropathologist, states: 7 "It is, therefore, not possible with 8 confidence to regard the death of 9 Tyrell as having been due to inflicted 10 trauma." 11 DR. JACK CRANE: Yes. 12 MS. JANE LANGFORD: So that's Dr. 13 Leestma, a neuropathologist, stating a -- an opinion that 14 is the polar opposite of what we've seen of Dr. Becker, 15 the neuropathologist at the Hospital for Sick Children. 16 DR. JACK CRANE: Yes. 17 MS. JANE LANGFORD: And, so, when we look 18 at the range of opinions, and that includes the opinion 19 that you know and have expressed a view on; Dr. Smith's 20 opinion is different than yours in this case. Those are 21 two (2) pathologists with different views, correct? 22 DR. JACK CRANE: Yes, that's correct. 23 MS. JANE LANGFORD: And we have two (2) 24 neuropathologists, Dr. Becker on one (1) side and Dr. 25 Leestma on the other.

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1 DR. JACK CRANE: Yes. 2 MS. JANE LANGFORD: And we have -- on the 3 pediatrician side of things, we have Drs. Cox and Mian on 4 one (1) side, and we have Dr. Horsham and Dr. Ferguson on 5 the other. 6 DR. JACK CRANE: Yes. 7 MS. JANE LANGFORD: And, finally, when it 8 comes to neurosurgery, we have Dr. Rutka on one (1) side 9 and Dr. Humphries on the other. 10 DR. JACK CRANE: Yes. 11 MS. JANE LANGFORD: And you'd agree with 12 me, sir, that it is, indeed, a challenge for those of us 13 who are not physicians to reconcile the range of opinion 14 that has been stated in this case. 15 DR. JACK CRANE: Yes, I mean it's a 16 challenge for pathologists as well, I think. 17 MS. JANE LANGFORD: Fair enough. 18 DR. JACK CRANE: Yes. 19 MS. JANE LANGFORD: Fair enough. And if 20 we look, then, to your report in this matter; Tab 36 of 21 your binder, sir, and it's PFP135538. And I'm looking at 22 page 4, the very bottom of the page under, "Comment on 23 Dr. Smith's Testimony". 24 You'll see that in your report, sir, you 25 say:

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1 "There is no doubt that in the 1990s 2 there were differing views as to the 3 mechanisms and force required for the 4 infliction of fatal head injuries in 5 infants and young children. Some of 6 the early papers on this subject 7 related to the force required for the 8 development of diffuse brain injury, 9 diffuse axonal injury, as -- as opposed 10 to subdural haemorrhage". 11 You see that, sir? 12 DR. JACK CRANE: Yes, I do. 13 MS. JANE LANGFORD: And you agree with me 14 that the range of opinions expressed in Tyrell's case is 15 a perfect example of the difficulties in some areas of 16 pathology where there is merging issues or simply no 17 certainty in the science or the interpretation of these 18 issues. 19 DR. JACK CRANE: Yes. 20 MS. JANE LANGFORD: And I think yesterday 21 you stated that there were, in the 1990s, some 22 pathologists who were -- and your words were "very 23 strident" in their views; that one required a very 24 considerable fall to cause the kind of injuries that 25 Tyrell suffered in this case.

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1 DR. JACK CRANE: That's correct. 2 MS. JANE LANGFORD: And I think, to be 3 fair to you, you stated that you are not a pathologist 4 that relies as much on the literature as you do your own 5 experience. 6 DR. JACK CRANE: Yes, I think one has to 7 be careful because, as I said, there are some people who 8 are very strident in one direction, and, equally, there 9 are people who are very forceful about the low-level 10 falls. And -- and, again, I think one has to be careful 11 even going the opposite way and -- and I think one has to 12 balance these views and, of course, take one's own 13 experience into consideration, as well. 14 MS. JANE LANGFORD: And to be fair, 15 though, to the clinicians at the Hospital for Sick 16 Children, and the pathologists, and the neuropathologists 17 there's nothing in the material that you reviewed to 18 suggest that those individuals relied on the literature, 19 as opposed to -- or as well as their own experience, is 20 that correct? 21 DR. JACK CRANE: I think that's probably 22 correct, yes. 23 MS. JANE LANGFORD: Now, yesterday in 24 your evidence you indicated that there was some 25 literature in the 1990s that suggested that the forces

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1 required for this type of injury were considerable, but 2 you'd agree with me, sir, that it's -- it's fair to say 3 that there was, in fact, strong support in the literature 4 in the 1990s to suggest that one required considerable 5 force to cause the kind of injuries that Tyrell suffered. 6 DR. JACK CRANE: You know I think there's 7 no doubt that there was opinions, and strong opinions, 8 expressed, yes. 9 MS. JANE LANGFORD: Fair enough. And so 10 if one is judging pathologists, or indeed any physician, 11 for views on shortfalls in the 1990s, we cannot do so 12 without reference to the literature at the time. 13 DR. JACK CRANE: Yes. And -- and while I 14 accept, you know, those who took the view that you 15 required considerable force and -- there's -- 16 nevertheless there still was a body of opinion at that 17 time who -- who did comment about the shortfall, so say 18 there was controversy and -- and there were difficulties 19 and -- and I fully accept that for pathologists working 20 at that time there might have been some difficulty in 21 interpreting that -- that material and that literature. 22 MS. JANE LANGFORD: And then your report 23 actually goes on to state that there remains some 24 controversy today about fatal brain injury. 25 DR. JACK CRANE: That's correct.

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1 MS. JANE LANGFORD: And you agree with 2 me, sir, that there is still in fact a debate over the 3 potential lethality of short distant falls. 4 DR. JACK CRANE: That's correct. 5 MS. JANE LANGFORD: And there is still a 6 debate today about the -- I'll call it the lucid interval 7 between an injury and an ult -- or an ultimately fatal 8 injury, if you will? 9 DR. JACK CRANE: Yes, I mean I think most 10 people accept that a lucid interval is -- is well- 11 recognised, yes. 12 MS. JANE LANGFORD: But there's some 13 debate as to the extent of that interval. 14 DR. JACK CRANE: Yes. 15 MS. JANE LANGFORD: And I take it, sir, 16 you'd agree that there is still some debate about the 17 specificity of retinal haemorrhages for inflicted trauma? 18 DR. JACK CRANE: Yes. I -- I think 19 that's true, yes. 20 MS. JANE LANGFORD: And so when this 21 Inquiry and the Commissioner is faced with making 22 recommendations as -- with respect to the use of 23 pathology opinions in -- in criminally-suspicious cases, 24 you would agree that any recommish -- recommendation 25 would have to acknowledge the possibility of a range of

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1 opinions, particularly in areas of pathology that are 2 emerging or still uncertain. 3 DR. JACK CRANE: Yes, I think that's 4 right. I think there's one (1) other point that -- that 5 I would make, and that is that whenever one is -- is 6 giving opinions in difficult areas, then I think one has 7 to be cautious in the approach. 8 And this is very important when you're 9 writing your report because I think -- because there may 10 not be certainty, I think you have to ensure that people 11 who read the report are aware of the -- the varying 12 opinions, so my concern perhaps would be that some people 13 who are -- are very strident in their views would perhaps 14 reinforce those views in their report. 15 While it's not taking cognizance of those 16 other opinions that -- that are available, so I -- I 17 think one should be balanced and make sure that those 18 reading the reports are aware of controversy of the 19 difficulties. 20 And often, I have to say that in -- in 21 cases that I have dealt with, that often means that it -- 22 it's often impossible to prove how an injury was 23 sustained and -- and frequently whilst there may be 24 suspicion on the part of the police, the pathologist 25 isn't able to confirm that and often no prosecution will

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1 occur. 2 MS. JANE LANGFORD: And in fact that 3 what's happened in the Tyrell case, faced with a range of 4 opinions that were on polar opposites, if you will, the 5 case did not go forward. 6 DR. JACK CRANE: That's correct. 7 MS. JANE LANGFORD: Now, just noting your 8 comments, as long as a pathologist acknowledges that 9 there may be others with differing views, I take it 10 though you have no issue with a pathologist taking a 11 strong opinion as to where he or she stands in the debate 12 of -- on a particular issue. 13 DR. JACK CRANE: Well, again it might 14 just depend on how strong that pathologist put his views 15 across. If a pathologist put his views across, which 16 might give the impression, perhaps, to a court, that 17 there are no other views, then I think that is 18 inappropriate, and I think testimony like that can be 19 dangerous. 20 MS. JANE LANGFORD: Fair enough. 21 DR. JACK CRANE: So, it may be the 22 pathologist says that, I strongly believe this, but I 23 acknowledge that there are others who might take a 24 contrary view or the literature might suggest something 25 different.

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1 MS. JANE LANGFORD: So as long as you 2 acknowledge the controversy, it's okay to hold a strong 3 view? 4 DR. JACK CRANE: Yes. 5 6 (BRIEF PAUSE) 7 8 MS. JANE LANGFORD: All right. Turning 9 to a new issue. 10 COMMISSIONER STEPHEN GOUDGE: Just before 11 you do, Ms. Langford, can I just ask, as a best practice, 12 Dr. Crane, should the pathologist drafting a report not 13 only acknowledge the competing view but offer an 14 explanation for why the pathologist has not accepted it 15 or is it enough to simply say, here's my view, I 16 acknowledge there are other views. I mean, in a close 17 case where there are views that could go responsibly 18 either way, what's the best practice? 19 DR. JACK CRANE: Well I think if one (1) 20 has strong views, and -- and I accept that some 21 pathologists have strong views, then I think they have -- 22 COMMISSIONER STEPHEN GOUDGE: By "strong 23 views," I take it you mean a high level of certainty? 24 DR. JACK CRANE: Yes. And I think that 25 they must be able to back that up with some credible

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1 evidence. There's no point in saying I believe something 2 because I believe it. 3 COMMISSIONER STEPHEN GOUDGE: Fair 4 enough. And all three (3) of you have made that point, 5 that the best practice is to be transparent about your 6 reasoning -- 7 DR. JACK CRANE: Yes. 8 COMMISSIONER STEPHEN GOUDGE: -- for 9 reaching your conclusion, however strongly held. What I 10 was really getting at was, Ms. Langford has put to you a 11 case where there seemed to have been a range of views, 12 and I was trying to get your own sense of the best 13 practice in -- in a case where there were competing 14 views. 15 Is it simply to state your own views with 16 the evidence that you used to come to that conclusion, or 17 do you have to go a step further and say, I acknowledge 18 there may be a competing opinion, and here's why I reject 19 it? 20 DR. JACK CRANE: I think that the good 21 practice is to acknowledge that there is other views and 22 other opinions, and as you say, to explain why in your 23 opinion you do not think that that was -- 24 COMMISSIONER STEPHEN GOUDGE: The facts 25 sustain it by comparison with the fact sustaining the

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1 view being advanced? 2 DR. JACK CRANE: That's right. And -- 3 and therefore I think that you are giving a balanced view 4 on the case, and those reading the report then, can 5 consider what your opinion is or aware that there may be 6 other opinions -- 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 DR. JACK CRANE: -- and then the court 9 can make its own judgment on those. 10 COMMISSIONER STEPHEN GOUDGE: Okay. How 11 practical is that admonition of perfection? 12 DR. JACK CRANE: Well -- 13 COMMISSIONER STEPHEN GOUDGE: In the real 14 world of forensic pathology? 15 DR. JACK CRANE: If we're dealing with a 16 subject that is controversial, I think it -- it has to be 17 done. I mean, I -- I really do. Otherwise you may be 18 misleading the court. 19 Now I -- there may be -- some people may 20 have views -- let me give you an example. We -- we've 21 recognized and we've talked in this court about children 22 who have multiple fractures for example, multiple rib 23 fractures. We've talked about the bucket-handle fracture 24 may be highly suspicious of non-accidental injury. 25 Now I -- that view is fairly widely held.

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1 But there was a clinician in Scotland in the United 2 Kingdom who had this view that there was a condition on a 3 sort of temporary brittle bone disease, that children 4 occasionally would get brittle bones, their bones would 5 break, and then suddenly they would become normal again. 6 Now that was a view that was held. Now I 7 -- if that view was -- was held, I -- I think that if 8 that view was being put forward, a pathologist would have 9 to explain, Well, that's a view of an individual. 10 There's absolutely no scientific evidence to back that 11 up. 12 So that the court then could make their 13 own judgment interpretation of it. So that's -- thatĂs 14 an extreme example. Another -- 15 COMMISSIONER STEPHEN GOUDGE: A closer 16 case might require more explanation of why the contrary 17 view was rejected? 18 DR. JACK CRANE: Yes. And a good example 19 is the so called Shaken Baby Syndrome, where -- and I 20 don't want to go into that, I'm sure Professor -- but 21 that is a subject which in the '90s, and perhaps even 22 still today, is controversial. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 DR. JACK CRANE: And -- 25 COMMISSIONER STEPHEN GOUDGE: Okay.

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1 DR. JACK CRANE: -- it may be that in 2 something like that, you would have to explain why you 3 believed it, particularly pattern of injuries indicated 4 shaking, or why you rejected that view. 5 But again, I think that it might be 6 incumbent to explain to the Court there is this view that 7 this pattern injury is due to shaking. 8 But, other views are that -- or your 9 particular view was -- is that it doesn't exist. So, 10 it's just trying to be as helpful as possible to the 11 Court. 12 COMMISSIONER STEPHEN GOUDGE: Do either 13 of the other two (2) of you have comments? I'm 14 particularly interested in how practical this admonition 15 of perfection is in a busy world. 16 DR. CHRISTOPHER MILROY: Well, I was 17 going just say that the Court of Appeal have actually 18 made a very specific reference to this subject in Bowman, 19 and it says, at one hundred and seventy-seven four 20 (1774): 21 "Where there is a range of opinion in 22 the matters dealt with in the report or 23 the summary -- [in the report], a 24 summary of the range of opinion and the 25 reasons for the opinions given. In

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1 this connection, any material, facts or 2 matters which detract from the expert's 3 opinion --" 4 And then he points, 5 "-- which should fairly be made against 6 any opinions expressed should be set 7 out." 8 COMMISSIONER STEPHEN GOUDGE: Apart from 9 the ex cathedra wisdom of all pronouncements of Courts of 10 Appeal -- 11 DR. CHRISTOPHER MILROY: But -- but -- 12 COMMISSIONER STEPHEN GOUDGE: -- is it a 13 practical thing to do? 14 DR. CHRISTOPHER MILROY: I could say 15 that, but, obviously, we -- we have to pay some attention 16 to our Court of Appeal, even -- 17 COMMISSIONER STEPHEN GOUDGE: Though, is 18 it practical? 19 DR. CHRISTOPHER MILROY: Is it practical? 20 Yes, I think it is in -- in cases, and I have -- in a 21 recent Shaken Baby case I said that, you know, the -- the 22 majority of opinion would that this was shaking. I said 23 there is a contra view that probably it's -- it's a 24 minority, but it's a -- it's a significant minority who 25 would say that shaking cannot cause the injuries present,

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1 and there must be some other thing going on. So, you can 2 do it. 3 And I think that -- I mean the case of the 4 temporary brittle bone disease is one way you would say, 5 you know, this is not accepted as science and, indeed, 6 the practitioner was struck off the General Medical 7 Register for saying it. So that was a -- 8 COMMISSIONER STEPHEN GOUDGE: I think Dr. 9 Crane acknowledge that was an extreme case. 10 DR. CHRISTOPHER MILROY: That's -- and 11 that's an extreme case. But I think that -- I think that 12 within limits, it can -- it can be done. 13 COMMISSIONER STEPHEN GOUDGE: Okay. Dr. 14 Butt, anything you want to -- 15 DR. JOHN BUTT: Well, I think -- I think 16 it's been said before now, Commissioner, that in terms -- 17 and you used the word this morning -- "practicality". 18 It's one (1) thing to explain contrary opinions, but I 19 think that the report deserves references under -- under 20 many -- under many circumstances. 21 Medical-legal reports that are carefully 22 done do contain references. This is where the 23 practicality comes in. I mean, how practical is it for a 24 forensic pathologist who, with limited resources -- we 25 come back to this point -- to -- to source this material?

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1 2 Well, it becomes easier, obviously, if you 3 have an institution where there's a library, for example. 4 You can do it yourself, if you have the time, or you can 5 have somebody else do it. But when you're looking at 6 cases in the quote/unquote "Hinterland"; in places like 7 Red Deer, Alberta or Nanaimo, British Columbia, and there 8 may not be a forensic pathologist there, but nonetheless, 9 medical-legal autopsies are done in smaller centres, then 10 it becomes a real problem -- this sort of thing. 11 And they -- and when doctors have -- and 12 many doctors who are doing medical-legal autopsies are 13 not forensic pathologists. And this -- the whole area 14 becomes a problem in terms of providing contrary opinions 15 or even -- even acknowledging contrary opinions. 16 So, I think that it's a very interesting 17 and good point and one -- dare I say it -- you know, that 18 requires attention, perhaps in the, you know, in -- in 19 your own opinions in the end. And I think it's a -- I 20 think it's a very important issue. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 Thank you. Sorry for taking so much time. 23 24 CONTINUED BY MS. JANE LANGFORD: 25 MS. JANE LANGFORD: It's okay, it's

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1 helpful. Turning now to an issue that, no doubt, the 2 Commissioner will have to grapple with, and that is the 3 idea that knowledge in forensic pathology and in all 4 pathology is not frozen. 5 And -- and Dr. Butt, I'm wondering -- I'm 6 going to read to you a statement that was made by Dr. 7 Pollanen in his testimony here last week. And I'm 8 wondering if you could let me know if you agree with it. 9 "And this produces one of the most 10 defining or important tensions between 11 medicine and law. And that is that the 12 legal system would prefer that answers 13 that are given at some point in the 14 past remain the same. But that is not 15 the nature of knowledge. That is not 16 the nature of medical knowledge. 17 Medical knowledge grows and develops. 18 So what might be accepted as true and 19 which may form a reasonable basis for 20 an expert opinion evidence at some 21 point in the past may not do so in the 22 present or future circumstance." 23 Do you agree with that, Dr. Butt? 24 DR. JOHN BUTT: I do. 25 MS. JANE LANGFORD: And I want to look

33

1 with you, sir, with one (1) example that we have in these 2 cases of this issue, and that's Valin's case. You very 3 fairly in your report, sir, outlined not only the 4 testimony of Dr. Smith, but as well, the testimony of the 5 original pathologist Dr. Rasaiah, and the clinician who 6 also examined the body, Dr. Patricia Zehr, do you recall 7 that? 8 DR. JOHN BUTT: IĂm --- I'm sorry, I 9 didn't hear what you said at the beginning? Are you 10 talking about my own report here? 11 MS. JANE LANGFORD: Your own report. 12 DR. JOHN BUTT: Yes, okay, yes. 13 MS. JANE LANGFORD: You outlined not only 14 Dr. Smith, but Dr. Rasaiah and Dr. Zehr's opinions? 15 DR. JOHN BUTT: Yes. 16 MS. JANE LANGFORD: And I will take you 17 to some examples, but I -- I take it you'd agree with me 18 that at least on some of the key issues, the evidence of 19 Dr. Rasaiah and Dr. Zehr was consistent with that of Dr. 20 SmithĂs in 1994, on some of the key issues? 21 DR. JOHN BUTT: Yes, that's my 22 recollection in general, that's -- that's true. 23 MS. JANE LANGFORD: And so if we can turn 24 to your report, sir. 25 DR. JOHN BUTT: Yes.

34

1 MS. JANE LANGFORD: Which is not in a 2 binder, Mr. Commissioner. 3 COMMISSIONER STEPHEN GOUDGE: Yes, I was 4 just -- 5 MS. JANE LANGFORD: Hopefully you can 6 follow on a -- 7 COMMISSIONER STEPHEN GOUDGE: Yes, I can 8 do it on the screen. 9 MS. JANE LANGFORD: -- on the screen. 10 11 CONTINUED BY MS. JANE LANGFORD: 12 MS. JANE LANGFORD: PFP004065. And I 13 want to start, sir, Dr. -- with the issue of the post- 14 mortem appearance of the anus as an example of this 15 issue. 16 DR. JOHN BUTT: Yes. 17 MS. JANE LANGFORD: And if you look at 18 your report at page 9, the very bottom of that page you 19 wrote that: 20 "The autopsy pathologist Dr. Rasaiah at 21 trial deemed there may be some 22 dilatation of the anal muscle post- 23 mortem. This was excessive dilatation. 24 He went on in his evidence at trial 25 describing the interior appearance of

35

1 the anus as somewhat..." 2 Going over to the next page: 3 "...grayish brown and necrotic in its 4 appearance." 5 You'll see that, sir? 6 DR. JOHN BUTT: I do. 7 MS. JANE LANGFORD: And that was your 8 understanding of Dr. Rasaiah's opinion as to the 9 appearance of the anus in 1994? 10 DR. JOHN BUTT: Yes. 11 MS. JANE LANGFORD: And on that same 12 page, just the very next paragraph you outline in your 13 report the opinion of Dr. Zehr, and you write: 14 "Dilatation of the anus in this case 15 has been interpreted as associated with 16 repeated interference. Dr. P. Zehr in 17 her report said, quote, "Gross gaping 18 of the anus". closed quote. Quote, "No 19 tone to the anal sphincter, edges 20 attenuated and rolled, pathopneumonic 21 of chronic anal intercourse. At trial 22 Dr. Zehr said the changes looked as 23 though there had been penetration of 24 some kind in the anal rectal area, and 25 then she goes on to refer to the post-

36

1 mortem photographs". 2 MS. JANE LANGFORD: That's your 3 understanding of the evidence and opinion of Dr. Patricia 4 Zehr in 1994? 5 DR. JOHN BUTT: Yes. 6 MS. JANE LANGFORD: Now on the same page 7 you then to go on to describe the opinions of Dr. Mian 8 and Dr. Smith in the report that they co-authored in 9 August of 1993. And there you report that -- the very 10 first bullet on that page, that: 11 "Dr. Mian and Dr. Smith opined that the 12 anus is gaping with a large opening 13 based on their review of the 14 photographs." 15 MS. JANE LANGFORD: Correct? 16 DR. JOHN BUTT: Yes. 17 MS. JANE LANGFORD: So it now appears 18 that at least two (2) pathologists and two (2) clinicians 19 in 1994 were of the view that the anus appeared to be 20 gaping on gross examination, correct? 21 DR. JOHN BUTT: Yes, yes. 22 MS. JANE LANGFORD: Now you didn't 23 delineate in your report, sir, but you are aware that 24 there were two (2) defence pathologists who testified at 25 the Mullins-Johnson trial in 1994?

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1 DR. JOHN BUTT: Yes. 2 MS. JANE LANGFORD: Dr. Jaffe and Dr. 3 Ferris? 4 DR. JOHN BUTT: Yes. 5 MS. JANE LANGFORD: If you can turn for a 6 moment to the overview report in the Valin's case, which 7 is PFP144327. 8 9 (BRIEF PAUSE) 10 11 MS. JANE LANGFORD: And looking at page 12 39, and sorry -- I'm sorry, Dr. Butt, you'll have to 13 follow on the screen. I hope -- can you see that all 14 right? 15 DR. JOHN BUTT: Yes. 16 MS. JANE LANGFORD: Looking at page 39, 17 you'll see that Dr. Ferris wrote a consultation report on 18 this matter in 1994? 19 DR. JOHN BUTT: I -- I recall that, yes. 20 MS. JANE LANGFORD: All right. And then 21 if we go to page 40, next page, the bottom of the page, 22 Dr. Ferris provides his opinion on the sexual assault 23 injuries. And Dr. Ferris says: 24 "The interpretation of the changes in 25 the vagina and rectum are difficult.

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1 Dilatation of the vaginal and anal 2 orifices at post mortem must be done 3 with extreme caution since the 4 sphincter muscles around these openings 5 often dilate after death. 6 Nevertheless, there does appear to be 7 evidence to suggest repeated 8 penetration of the anus." 9 See that, sir? 10 DR. JOHN BUTT: I do. 11 MS. JANE LANGFORD: So it appears that 12 Dr. Ferris was of the same view as to the appearance of 13 the anus in 1994 as that of Dr. Rasaiah, and Dr. Smith, 14 and Dr. Mian, and Dr. Zehr. Do you agree with that? 15 DR. JOHN BUTT: Yes. 16 MS. JANE LANGFORD: And if we turn to 17 page 50, this is a chart, if you will, sir, of the 18 evidence of all of the medical experts who testified in 19 the Mullins-Johnson trial. And if we actually -- Mr. 20 Registrar, could we just go back a couple of pages, so I 21 can confirm that I'm looking at the right column? 22 One (1) more, one (1) more. No, 23 backwards. Okay. So we're looking for paragraph 91. 24 The start of paragraph 91. It's okay. 25 MR. JOHNATHAN SHIME: 45.

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1 MS. JANE LANGFORD: Page 45, thank you. 2 All right. So we see here that the -- excuse me for one 3 (1) moment. We see here that the -- let's go to the next 4 page just so I can be sure of myself. I don't want to 5 mislead anyone. 6 So the third column is the -- the evidence 7 of Dr. Jaffe, all right? 8 DR. JOHN BUTT: Yes. 9 MS. JANE LANGFORD: The third column is 10 the evidence of Dr. Jaffe. So now if we can go to page 11 50, the very bottom of the column there. You'll see that 12 the -- the statement is: 13 "The gapping in the anus was perhaps a 14 bit more than one would expect simply 15 by post-mortem relaxation." 16 And, sir, that's your understanding of Dr. 17 Jaffe's evidence at the trial of this matter? That is 18 that the ga -- anus was gapping a bit more than one would 19 have expected simply by post-mortem relaxation? 20 DR. JOHN BUTT: That was his opinion, 21 yes. 22 MS. JANE LANGFORD: All right. So now we 23 have Dr. Smith, Dr. Rasaiah, Dr. Jaffe, and Dr. Ferris. 24 Four (4) pathologists and two (2) clinicians, Dr. Mian 25 and Dr. Zehr all testifying in 1994 that the -- to them,

40

1 the anus was gapping more than one would expect in the 2 post-mortem examination, correct? 3 DR. JOHN BUTT: Yes. 4 MS. JANE LANGFORD: And while we're on 5 the issue of the sexu -- the evidence of sexual 6 interference on Valin's body, as between Dr. Ferris and 7 Dr. Smith, there was evidence of pr -- of -- given about 8 whether or not there was anal -- an anal laceration. 9 And I'm going to take you to that 10 evidence. So if we could just turn to page 51. You'll 11 see that the second column is Dr. Smith. 12 DR. JOHN BUTT: Yes. 13 MS. JANE LANGFORD: And Dr. Smith 14 testifies that there is -- he found fresh bruises in the 15 anal area and microscopically one (1) laceration in the 16 cells which line the rectum-anal region. He described 17 this as evidence of fresh lay -- laceration and evidence 18 of at least recent, if not fresh, bleeding or bruising 19 into the area. 20 Do you see that? 21 DR. JOHN BUTT: I do. 22 MS. JANE LANGFORD: Now, on the very same 23 page -- so that's Dr. Smith's opinion -- the very same 24 page in the final column, we see the evidence of Dr. 25 Ferris. And at the bottom, he says:

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1 "With respect to the anus...[he 2 testified that] he noted injury to that 3 area, and was of the opinion that it 4 was probably sustained some hours prior 5 to death. 6 The rectal laceration seen 7 microscopically can be interpreted as 8 evidence of anal penetration eight (8) 9 to eighteen (18) hours prior to death." 10 Do you see that, sir? 11 DR. JOHN BUTT: I do. 12 MS. JANE LANGFORD: So we have both Dr. 13 Smith and Dr. Ferris, the defence pathologist, testifying 14 that they saw, at least microscopically, evidence of anal 15 lacerations, correct? 16 DR. JOHN BUTT: Correct. 17 MS. JANE LANGFORD: Now, sir, we know 18 that you, and Dr. Crane, and Dr. Milroy, and Dr. Pollanen 19 reviewed this case in 2005 and 2006 and we know that you 20 all were of the view that the -- in gross examination the 21 anus did not appear abnormal and that there was no anal 22 laceration microscopically, is that your understanding? 23 DR. JOHN BUTT: Yes. 24 MS. JANE LANGFORD: And that's your 25 opinion.

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1 DR. JOHN BUTT: Yes. 2 MS. JANE LANGFORD: So you'd agreed with 3 me that, at least with respect to the appearance of the 4 anus and the presence of the -- microscopic presence of a 5 -- of a laceration, that in 1994 there was a consensus of 6 pathologists that is different than the consensus of 7 pathologists today? 8 DR. JOHN BUTT: I agree. 9 MS. JANE LANGFORD: And would you agree 10 with me, sir, that a reasonable explanation of the 11 difference between those who testified in the Mullins- 12 Johnson trial in 1994 and those of you that reviewed this 13 case in 2005 and after is that the diagnostic criteria 14 for anal-genital injuries has evolved since 1994? 15 DR. JOHN BUTT: That -- that adds to it, 16 yes. I agree with that, yes. 17 MS. JANE LANGFORD: It's reasonable to 18 conclude that we now know more than we did in 1994 about 19 these issues. 20 DR. JOHN BUTT: Yes, there's a -- well, I 21 think that the matter's been covered; I don't want to 22 waffle on it. The point is that, of course there has 23 been an accumulation of evidence; whether that's the 24 reason for the change of opinions entirely is a different 25 matter.

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1 MS. JANE LANGFORD: Fair enough. And 2 looking at a -- at a second example in the same case, 3 sir, you have opined in your report of the problems with 4 failing to recognise the distinction between post-mortem 5 lividity and petechiae, or bruises, correct? 6 DR. JOHN BUTT: Pardon me. Yes. 7 MS. JANE LANGFORD: And I assume, sir, 8 that you agree with Dr. Pollanen's evidence on this that 9 post-mortem lividity that simulates bruising is one (1) 10 of the pitfalls of pathology. 11 DR. JOHN BUTT: Yes. 12 MS. JANE LANGFORD: So, if we could turn 13 to page 48 of the overview report. This is the evidence 14 of the pathologists at trial -- at the Mullins-Johnson 15 trial on the issue of cause of death, and you'll see that 16 Dr. Rasaiah testified that the cause of death was a lack 17 of oxygen causing the heart to stop; cardiorespiratory 18 arrest due to asphyxia. 19 He categorised this as an unnatural cause 20 of death and testified that he found no evidence of a 21 natural cause. Dr. Rasaiah concluded that there was 22 mechanical obstruction either to the nose and mouth, neck 23 or upper chest, do you see that, sir? 24 DR. JACK CRANE: Yes, I do. 25 MS. JANE LANGFORD: And that's your

44

1 understanding of the evidence of Dr. Rasaiah on the issue 2 of cause of death? 3 DR. JACK CRANE: It is, yes. 4 MS. JANE LANGFORD: And then looking at 5 the evidence of Dr. Smith on the cause of death, Dr. 6 Smith testified that Valin did not die a natural death; 7 she died of asphyxia. He agreed with Dr. Ferris' report 8 that death was possibly due to manual strangulation. 9 He testified that there was no evidence 10 that Valin died from aspirating her stomach contents. He 11 testified that he could not tell the mechanism which 12 stopped the oxygen flow to the body. 13 That's your understanding of Dr. Smith's 14 evidence? 15 DR. JOHN BUTT: I see that, yes. 16 MS. JANE LANGFORD: And we have Dr. 17 Jaffe's evidence where he says in the middle paragraph, 18 "Dr. Jaffe could not exclude manual 19 strangulation." 20 DR. JOHN BUTT: Yes. 21 MS. JANE LANGFORD: And then we have Dr. 22 Ferris' opinion in 1994. Dr. Ferris, in his report, 23 stated that Valin appeared to have died as a direct 24 result of neck compression. 25 At trial Dr. Ferris testified that the

45

1 cause of death in this case was a problem. He felt it 2 was reasonable to say that there was no definitive cause 3 of death that had been established. 4 He found no evidence of natural disease, 5 there was no definitive easily identifiable cause of 6 death, and all he could say was that the mechanism of 7 death was not sev -- a severe force. And he viewed that 8 the cause of death was undetermined. However, he agreed 9 the external and internal bruising to the neck sustained 10 at or around the time of death, taken in conjunction with 11 facial haemorrhages, can be reasonably interpreted as 12 evidence of manual strangulation. 13 And that's your understanding of Dr. 14 Ferris' opinion at trial? 15 DR. JOHN BUTT: Yes. 16 MS. JANE LANGFORD: So would you agree 17 with me that at least as between Drs. Smith, Ferris, and 18 Rasaiah at the time of Valin's -- at the Mullins-Johnson 19 trial in 1994, there was a consensus of opinion that 20 Valin had pathologically significant petechiae in the 21 neck and face and that mechanical asphyxiation, likely 22 due to manual strangulation, was a possible cause of 23 death? 24 DR. JOHN BUTT: Yes. 25 MS. JANE LANGFORD: And again today, we

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1 know that you, Dr. Milroy, and Dr. Crane, and Dr. 2 Pollanen have all interpreted those neck and facial 3 petechiae as post mortem in nature. 4 DR. JOHN BUTT: That's correct. 5 MS. JANE LANGFORD: Not being 6 pathologically significant? 7 DR. JOHN BUTT: Well, I can't say that 8 they're not pathologically significant. It's a question 9 of the interpretation, and I -- you know, I think that's 10 the issue. 11 MS. JANE LANGFORD: You've interpret -- 12 you and Drs. Crane and Milroy have interpreted that as 13 not being evidence of -- of mechanical asphyxia and 14 manual strangulation? 15 DR. JOHN BUTT: I'm not sure that I've 16 ever reviewed either of their reports, but it certainly 17 is -- you know, I think it's an interpretive issue from 18 the -- from the start. 19 MS. JANE LANGFORD: But your 20 understanding is that you have a consensus of opinion, at 21 least, that -- that you can't say that the cause of death 22 was manual strangulation? 23 DR. JOHN BUTT: I'm sure that the -- 24 that's likely their opinion. I'm not -- well, I'm not 25 certain of it because I haven't seen a report, so, --

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1 MS. JANE LANGFORD: Fair enough, fair 2 enough. 3 DR. JOHN BUTT: -- but I imagine -- 4 MS. JANE LANGFORD: I think Drs. Milroy 5 and Crane would -- 6 DR. CHRISTOPHER MILROY: Do you want us 7 to answer that -- 8 MS. JANE LANGFORD: Yes. 9 DR. CHRISTOPHER MILROY: -- because we 10 can say yes, that is our opinion, yes. 11 MS. JANE LANGFORD: Thank you, thank you. 12 So turning for a moment then to document PFP058548. May 13 I have your indulgence for one (1) moment, sir? I think 14 I might have the wrong document number. Sorry, I've 15 given you a wrong document number, Mr. Registrar, 003648, 16 we hope. 17 Do you want me to give you that number aga 18 -- oh, that's right, perfect. Dr. Butt, this is a letter 19 dated December the 6th, 2005. So written approximately 20 eleven (11) years after the Mullins-Johnson trial. And 21 it's a letter to Mr. Lockyer from Dr. Ferris. 22 And this was one (1) of the materials, 23 sir, that we -- we looked at yesterday that you had in 24 your possession at the time that you did your report. 25 DR. JOHN BUTT: May I just check

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1 something on this? 2 MS. JANE LANGFORD: Absolutely. 3 DR. JOHN BUTT: The only reason I'm doing 4 that is because the copy that you provided me with this 5 morning has a different date on it. 6 MS. JANE LANGFORD: And -- and I'm now 7 looking at a different date, as well, so. I -- the 8 document is -- appears to be exactly the same, but... 9 MR. JAMES LOCKYER: The one (1) -- the 10 document he has is 58548 -- 058548. 11 MS. JANE LANGFORD: Why don't we just to 12 be absolutely clear, go to the 058 -- 13 MR. JAMES LOCKYER: 548. 14 MS. JANE LANGFORD: -- 548. 15 DR. JOHN BUTT: Yes. That -- that is -- 16 pardon me, I'm sorry. 17 MR. MARK SANDLER: There's -- there's two 18 (2) different letters of the same date, but a different 19 year. ThatĂs where the confusion is. 20 MS. JANE LANGFORD: Perfect. Okay. Now, 21 we are all looking at the same document. Thank you, Dr. 22 Butt, for clarifying that. So this is a letter dated 23 January 12th, 2006, so twelve (12) years after the 24 Mullins-Johnson trial, to Mr. Lockyer from Dr. Ferris, 25 correct?

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1 DR. JOHN BUTT: Yes. 2 MS. JANE LANGFORD: All right. And 3 you'll note, that in the very first paragraph, Dr. Ferris 4 says: 5 "Thank you for giving me an opportunity 6 to review this very troubling case." 7 So it appears that Dr. Ferris was invited 8 to reconsider his opinion in 2006, is that your 9 understanding? 10 MR. MARK SANDLER: Has a different year. 11 DR. JOHN BUTT: Yes. 12 MS. JANE LANGFORD: All right. And if we 13 look at page 2, Dr. Ferris lists the material that he 14 reviewed. He says: 15 "I have now had an opportunity to 16 review all of the documents, notes and 17 photographs in my file, and have also 18 had an opportunity to review the 19 following documents and information." 20 And you'll see that Dr. Ferris reviewed 21 the medical evidence at trial of Dr. Rasaiah, Dr. Jaffe, 22 Dr. Zehr and Dr. Smith. He reviewed Dr. Michael 23 Pollanen's report dated January 1, 2005, at number 6. 24 He reviewed Dr. Bernard Knight's opinion 25 at number 2, dated August 11, 2005. You'll see that,

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1 sir? 2 DR. JOHN BUTT: I do. 3 MS. JANE LANGFORD: All right. And then 4 turning to page 3, beginning at cause of death. I'm 5 going to read a fairly lengthy part of this letter, sir, 6 so that I can ask you some questions about it. 7 "In my..." 8 This is Dr. Ferris in 2006: 9 "In my opinion, dated January 31, 1994, 10 I stated there appears to be some doubt 11 as to the precise mechanism of death 12 based on the assumption that this was a 13 case of murder. I expressed the 14 opinion that a possible mechanism of 15 death was minimum neck compression 16 leading to sudden cardiac arrest due to 17 vagal inhibition. In my evidence-in- 18 chief I stated it's possible therefore 19 if you have evidence of minimal injury, 20 but in the right spot, and a dead child 21 that appears to have died suddenly, 22 presumably relatively unexpectedly, 23 that vagal inhibition is the mechanism 24 of death. Well this statement may been 25 in accord with conventional wisdom in

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1 1994, it is now known to be incorrect. 2 There are a number of possible causes 3 for sudden death in children and 4 adults, and in many cases which were 5 previously thought to be suspicious, it 6 has come to be realized that 7 abnormalities of heart rhythm were the 8 causes of sudden deaths. Some of these 9 conditions are classified as 10 channelopathies and may account for a 11 significant number of previously 12 unexplained sudden deaths. My proposed 13 theory of vagal inhibition in the Valin 14 case was based only on the presence of 15 a focal area of haemorrhage adjacent to 16 the thyroid gland, and the possible 17 presence of petechial haemorrhages on 18 the skin of the face. With regard to 19 the petechial haemorrhages on the face, 20 I concluded that these were almost 21 entirely due to post-mortem lividity 22 although I could not exclude the 23 possibility that there were underlying 24 anti-mortem petechiae masked by the 25 post-mortem changes. In my evidence at

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1 trial I stated the post-mortem 2 haemorrhages on the chest are clearly 3 post-mortem and there is no question 4 about that. And it may well be that 5 the petechial haemorrhages in the face 6 are also post-mortem. This expressed 7 opinion, I now realize, was too 8 cautious. In the light of an 9 additional twelve (12) years of 10 experience, I have no doubt that the 11 only reasonable conclusion is that all 12 of Valin's facial petechial 13 haemorrhages were post-mortem. And 14 that my original observation that the 15 microscopic appearances of the facial 16 petechial haemorrhages were post-mortem 17 in nature, should have been 18 unequivocal. The only other finding 19 that supported my theory of vagal 20 inhibition was the presence of 21 microscopic haemorrhage adjacent to the 22 thyroid gland. Dr. Pollanen has 23 suggested that this is almost certainly 24 a result of dissection artifact caused 25 during the post-mortem procedure. Such

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1 artifacts are readily produced during 2 neck dissections, and there are 3 dissection procedures which, if 4 carefully applied, will help prevent 5 such artificial bruising. I have now 6 been able to review the photographs 7 taken at the time of the original post- 8 mortem examination, and it is clear 9 that in spite of Dr. Rasaiah's claims 10 to the contrary, a careful layer by 11 layer dissection of the neck was not 12 performed. And so I agree with Dr. 13 Pollanen that it is highly likely that 14 the microscopic bruising seen on the 15 microscope sections is, in fact, an 16 artifact. Since it is now reasonable 17 to completely exclude the two (2) 18 pathological foundations for my 19 tentative cause of death as vagal 20 inhibition due to neck compression, 21 there is no reasonable alternative that 22 to conclude the no -- no definitive 23 cause for death can be established. 24 This means that there is no evidence 25 that Valin was a victim of homicide."

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1 Now, Dr. Butt, it appears from this letter 2 written by Dr. Ferris in 2006 to Mr. Lockyer, who was 3 counsel for Mr. Mullins-Johnson, that Dr. Ferris, with 4 the benefit of twelve (12) years of experience and with 5 the benefit of hindsight, has changed his opinion, vis-a- 6 vis, the cause of death. 7 DR. JOHN BUTT: Is that a question? 8 MS. JANE LANGFORD: Yes. 9 DR. JOHN BUTT: I believe he has. 10 MR. MARK SANDLER: I just think that in 11 fairness to Dr. Ferris, the -- the paragraph that 12 followed the portion that My Friend read probably should 13 be read out in that connection at page 4. 14 MS. JANE LANGFORD: Fair enough. 15 MR. MARK SANDLER: It starts at the words 16 "contrary to the apparent..." 17 18 CONTINUED BY MS. JANE LANGFORD: 19 MS. JANE LANGFORD: Hap -- happy to read 20 that out. 21 "Contrary to the apparent 22 interpretation of my evidence by the 23 Crown and the Court, I did not change 24 my opinion at trial but, rather, I 25 attempted to clarify the pathological

55

1 foundation for my opinion. I clearly 2 stated in my evidence, I think it is 3 reasonable to say that there is no 4 definitive cause for death that has 5 been established." 6 And, of course, we looked at that evidence 7 just a few moments ago in the chart in the overview 8 report -- 9 DR. JOHN BUTT: Yes. 10 MS. JANE LANGFORD: -- where Dr. Ferris 11 said: 12 "Although I don't think there's a 13 definitive cause of death, it's 14 reasonable to conclude that there was 15 manual strangulation." 16 DR. JOHN BUTT: That's correct. 17 MS. JANE LANGFORD: All right. So, sir, 18 from this letter, it's your understanding that Dr. Ferris 19 has changed his mind twelve (12) years later, correct? 20 DR. JOHN BUTT: Yes. To the extent that 21 you have explained -- 22 MS. JANE LANGFORD: Yes. On the cause of 23 death. 24 DR. JOHN BUTT: -- because there was a 25 reservation at the time.

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1 MS. JANE LANGFORD: Absolutely. 2 DR. JOHN BUTT: In the -- in the time of 3 the first opinion, there was some qualification. 4 MS. JANE LANGFORD: Fair enough, and he's 5 now removed that qualification and stated an unequivocal 6 opinion. DR. JOHN BUTT: Yes, I understand that. 7 MS. JANE LANGFORD: Now, sir, you're not 8 aware of whether or not Dr. Smith was given any 9 opportunity to reconsider his opinion twelve (12) years 10 after he gave evidence at trial? 11 DR. JOHN BUTT: I'm not aware of that, 12 no. 13 MS. JANE LANGFORD: And, in fact, are -- 14 you're not aware of whether Dr. Smith was given an 15 opportunity to reconsider any of the cases that you 16 reviewed in the Chief Coroner's Review? 17 DR. JOHN BUTT: No, I wouldn't have any 18 understanding of that. 19 MS. JANE LANGFORD: It's not your 20 understanding. 21 DR. JOHN BUTT: It's not my 22 understanding, but I -- you know, I -- I don't think it's 23 an area that was ever discussed; whether he had an 24 opportunity to explain it, so I don't know, really. 25 MS. JANE LANGFORD: Well, let me be --

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1 let me be precise. 2 DR. JOHN BUTT: Mm-hm. 3 MS. JANE LANGFORD: In the materials that 4 you were provided in the cases that you reviewed, did you 5 see an opinion or a letter or any explanation in 2006 6 from Dr. Smith regarding his opinions expressed at the 7 original time? 8 DR. JOHN BUTT: No. 9 MS. JANE LANGFORD: Now, I -- I -- 10 without wishing to be critical of Dr. Ferris who has 11 expressed a very different opinion today than he did at 12 the time, I take it you would agree with me that we 13 cannot be critical of opinions expressed in the past that 14 may have been reasonably held and reasonably -- and 15 unsustainable now because of the passage of time and the 16 evolution of knowledge. 17 DR. JOHN BUTT: I disagree with that 18 statement. This is a question of interpretation of very 19 basic information in pathology. 20 MS. JANE LANGFORD: So -- 21 DR. JOHN BUTT: It's not a question of 22 gaining knowledge in an area over haemorrhages that were 23 described by a French pathologist a hundred (100) and 24 some odd years ago. 25 MS. JANE LANGFORD: So, your view is that

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1 four (4) pathologists and two (2) clinicians were wrong 2 in 1994, rather than the possibility that they held views 3 that were reasonable in the time, given the state of 4 knowledge on issues such as the appearance of the anus 5 and post-mortem lividity? 6 DR. JOHN BUTT: Well, we're looking at 7 two (2) separate issues here. So, the first one that I 8 mentioned, and I'll stick with the issue, is the 9 interpretation of basic pathological information in 10 connection with a universal issue in corpses which is 11 called "livid staining" or "hypostasis". 12 And that interpretation of lividity, I 13 don't know in the literature of any significant changes 14 that have been developed about the interpretation of 15 lividity. There are general understandings about it, and 16 one (1) of the understandings has to be that in certain 17 conditions, positions of the body after death, and 18 perhaps associated with the agonal moments of life, there 19 are changes that may develop that allow for the 20 accumulation of blood, not only universally over the 21 dependent part of the body, but also in 22 bizarre blister locate -- like things that have been 23 called, by some authors, as pseudo bruises because one 24 has to put that in a reasonable context; I mean, people 25 can misinterpret them.

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1 But on the other hand, and I won't get 2 specific about it, but if one has been in practice as a 3 forensic pathologist and you don't know this, by the time 4 you are in practice and let loose into the public to 5 speak your peace in a courtroom and you don't know this, 6 then you shouldn't be practising forensic pathology. 7 MS. JANE LANGFORD: So you disagree then 8 with Dr. Pollanen's view that he very clearly expressed 9 in this room that if you gave a slide to a pathologist 10 and asked them to tell whether it was a pseudo bruise or 11 a bruise -- or a -- or a true bruise, a pathologist 12 couldn't tell the difference. 13 DR. JOHN BUTT: I don't have a problem 14 with that statement but, with respect, you have taken an 15 isolated incident. I wasn't talking about microscopic 16 appearances. 17 MS. JANE LANGFORD: Fair enough. 18 DR. JOHN BUTT: I was talking about the 19 appearance grossly of the body and one (1) of the 20 features that one sees right in the very beginning, and 21 that thing that you see in the very beginning is the 22 external part of the body and it's there to interpret. 23 MS. JANE LANGFORD: All right. So you 24 then do not acknowledge what Dr. Ferris is suggesting, 25 that with twelve (12) years of experience and -- and

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1 knowledge, his view today is now different. 2 DR. JOHN BUTT: Well, that's Dr. Ferris' 3 issue. 4 MS. JANE LANGFORD: All right, so you -- 5 you disagree with him on that. 6 DR. JOHN BUTT: That's Dr. Ferris' issue. 7 It's -- you know, I -- how can I disagree; he's talking 8 about his own experience? 9 MS. JANE LANGFORD: Fair enough. But you 10 dis -- 11 COMMISSIONER STEPHEN GOUDGE: I simply 12 want to know what theory of vagal inhibition is that he's 13 talking about. 14 DR. JOHN BUTT: Well, the theory of vagal 15 inhibition, the vagal nerve, which is -- which is located 16 in the neck, under certain circumstances it's been held 17 that stimulation of the vagal nerve with re -- result in 18 a reflex of -- that is an autonomic response, and 19 autonomic being not voluntara -- not voluntary, that will 20 slow the heart down to the extent that it could become a 21 fatal arrhythmia, bradycardia to the extent -- 22 bradycardia meaning slowing of the heart to an extent 23 that it would be incompatible with life. 24 A good example of it, in a -- in a mild 25 form would be a faint. This -- shall I continue be --

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1 with this or...? 2 COMMISSIONER STEPHEN GOUDGE: Yeah, I 3 think you're being picked up. 4 DR. JOHN BUTT: The -- the issue I don't 5 think was a very strong issue in the beginning. It's one 6 (1) of these things that is a danger, for example, with 7 instrumentation of the back of the throat by 8 anaesthetists, but it's relationship to petechial 9 hemorrhages in the thymus or the thyroid gland, rather; I 10 think it was the thyroid that he talked about here. 11 It's relationship to hemorrhages in the 12 neck are totally unknown to me. I -- I have no knowledge 13 whatsoever of those sorts of hemorrhages being associated 14 with vagal inhibition. 15 And whether they speak to the issue of 16 perhaps some form of pressure on the neck which has 17 stopped the heart, this, for many years and going back to 18 the time when I started forensic pathology in the late 19 1960s, was an issue that was often offered by the defence 20 of, well, there wasn't enough pressure on the neck to do 21 any damage, but the person was grasped around the neck 22 perhaps by cold hands and there was some sort of a 23 reflexive action which stopped the heart, ergo va -- 24 vagal inhibition; that's the basis of it. 25 So the issues of -- I don't think I have

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1 to reiterate the issues of hemorrhage in the neck, and 2 this was reported by Dr. Ferris in 1994. I know of no 3 literature at that time that would have supported that 4 point of view, nor do I know that -- that anybody would 5 have had to have gained knowledge over a period of twelve 6 (12) years in order to sharpen their wit about it. 7 8 CONTINUED BY MS. JANE LANGFORD: 9 MS. JANE LANGFORD: Fair enough. Would 10 you agree with me that pathologists and researchers 11 continue to research on the issue of post-mortem 12 lividity? 13 DR. JOHN BUTT: I -- I can't -- I think 14 there's an accumulation of knowledge over a period of 15 time with people sharing information at meetings, and 16 that's a fair enough statement; it's a pair -- it's a 17 fairly limited area to research. 18 MS. JANE LANGFORD: Fair enough. And so 19 would you agree with me that in this -- in that issue, 20 and in perhaps other issues, when we were to -- if we 21 were to look at pathologic opinions issued forty (40) 22 years ago, it may well be that we would disagree with 23 some of those opinions based on the knowledge we have now 24 in the science, and as well as, perhaps, our own 25 experience?

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1 DR. JOHN BUTT: I'm taking your statement 2 strictly as it is, and I agree with what you say. 3 MS. JANE LANGFORD: All right. And -- 4 and we also might find that we would disagree with 5 opinions that were issued as late as 2000 based on cur -- 6 current thinking? 7 DR. JOHN BUTT: That's a general 8 statement, and I agree with it. 9 MS. JANE LANGFORD: All right. So if we 10 were to make recommendations -- and -- and let me pause 11 and say, it's not just to suggest that we're somehow 12 smarter now than -- than they were then, it's to suggest 13 that we, perhaps, have had the benefit of more research 14 now than they had then. 15 DR. JOHN BUTT: Yes. 16 MS. JANE LANGFORD: And so you would 17 agree recommendations regarding the oversight of 18 pathologists, and the, perhaps, discipline, and we've 19 heard some examples of what they do in the United Kingdom 20 when reviewing path -- pathological opinions that have 21 been expressed, that it would be important for the 22 mechanisms that were -- are put into place to recognize 23 the possibility of the evolving nature of pathology? 24 DR. JOHN BUTT: Yes, I think that's true, 25 and I think it's been discussed, in fact, this morning.

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1 MS. JANE LANGFORD: And you would agree 2 that we would have to be cautious when reviewing opinions 3 issued in the past to ensure that we placed those 4 opinions in the context in which they were given? 5 DR. JOHN BUTT: Yes. 6 MS. JANE LANGFORD: Now, gentlemen, as 7 you can appreciate, or I hope appreciate, this Commission 8 has operated from the outset on the principle of 9 transparency and in that light, I want to ask each of you 10 the following question. And I'll start with Dr. Milroy. 11 Apart from your retainer with the chief 12 coroner's office and this Commission, have you been 13 independently consulted or retained to assist any of the 14 individuals who may be currently involved appeals or 15 future appeals or legal proceedings who are -- 16 individuals who were involved in the cases you reviewed 17 for the chief coroner? 18 DR. CHRISTOPHER MILROY: No. 19 MS. JANE LANGFORD: And, Dr. Milroy, have 20 you been given notice by any counsel that your opinions 21 will be used in this regard? 22 DR. CHRISTOPHER MILROY: I have -- no, I 23 haven't had any communication with counsel about any -- 24 the only communications I've had with respect to the -- 25 this Inquiry were the coroner and then this Inquiry.

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1 I've had no separate communications in writing other than 2 some verbal communications whilst here. 3 MS. JANE LANGFORD: All right. And in 4 the verbal communications whilst here, have you been 5 requested or given -- to give an opinion in any future 6 appeals or legal proceedings? 7 DR. CHRISTOPHER MILROY: No. 8 MS. JANE LANGFORD: Thank you. And, Dr. 9 Crane, the same question to you? 10 DR. JACK CRANE: I haven't been retained 11 by anyone, no. 12 MS. JANE LANGFORD: And have you been 13 consulted or given notice of -- of that involvement? 14 DR. JACK CRANE: No, I have not. 15 MS. JANE LANGFORD: Fair enough. And, 16 Dr. Butt...? 17 DR. JOHN BUTT: I haven't been retained; 18 however, I was -- I received a letter about a case that 19 was reviewed, but not by the Commission. It was one (1) 20 of the earlier cases that was reviewed by the coroner's 21 office. And it was from a -- a law firm in Toronto, and 22 I felt uncomfortable about it, and I didn't answer the 23 letter over a period of months. 24 And I received a letter from the Crown 25 about ten (10) days ago asking me to respond to the

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1 original -- the -- the original letter. And so this 2 afternoon I have a meeting with that counsel. 3 MS. JANE LANGFORD: All right. And is 4 that, just to be fair, any counsel of any of the parties 5 with standing in this -- in this hearing? 6 DR. JOHN BUTT: No, it's not. 7 MS. JANE LANGFORD: Perfect, fair enough. 8 Gentlemen, you have been very patient and cooperative, 9 thank you. 10 Mr. Commissioner, those are my questions, 11 and I'm hoping that you'll note that I'm finishing ahead 12 of schedule, and perhaps I could have a credit for future 13 -- future cross-examinations. 14 COMMISSIONER STEPHEN GOUDGE: Thank you, 15 Ms. Langford, that was a very useful cross-examination 16 for me. 17 Okay. Next is, I guess, you, Mr. Lockyer. 18 19 CROSS-EXAMINATION BY MR. JAMES LOCKYER: 20 MR. JAMES LOCKYER: Gentlemen, I want to 21 ask each one (1) of you a little bit about some of the 22 cases you've spoken of here. And, Dr. Crane, I'd -- I'd 23 like to start with you where the Joshua case is 24 concerned. 25 And Dr. Smith's counsel brought your

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1 attention to a part of your report that I want to bring 2 your attention to as well. Your report is at 135527, 3 volume -- Tab 4. 4 COMMISSIONER STEPHEN GOUDGE: Of Dr. 5 Crane's? 6 MR. JAMES LOCKYER: Binder 6 I think it's 7 called, Tab 4. 8 DR. JACK CRANE: It's called volume I. 9 COMMISSIONER STEPHEN GOUDGE: Volume I, 10 thanks. 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 DR. JACK CRANE: And at page 5. So 14 135527. And at page 5, and -- and this is -- 135527, 15 that's it, page 5 of there. You'll see, sir, the 16 paragraph that says -- two (2) down on the screen: 17 "There were a few small areas of 18 bruising on the undersurface of the 19 scalp, possibly due to minor knocks or 20 blows or by compression of the head. 21 While in themselves no serious, such 22 injuries should properly raise concerns 23 and would require further investigation 24 and explanation." 25 Do you remember being questioned about

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1 that by Dr. Smith's counsel, sir? 2 DR. JACK CRANE: Yes, I do. 3 MR. JAMES LOCKYER: And one (1) thing 4 that you didn't have, as I understand it, sir, when you 5 prepared this report of -- sorry, it was fairly recent. 6 I'm afraid it's not dated, but I think you prepared this 7 a couple of months ago, is that right? 8 DR. JACK CRANE: I tend not to date my 9 reports, I have to say. 10 MR. JAMES LOCKYER: I didn't see a date 11 on it. 12 DR. JOHN BUTT: September. 13 MR. JAMES LOCKYER: Pardon? 14 DR. JOHN BUTT: September, they were -- 15 MR. JAMES LOCKYER: September something? 16 DR. JOHN BUTT: Yes. 17 MR. JAMES LOCKYER: Fair enough. I 18 understand, sir, that you did not have a report prepared 19 by Dr. Ramsey (phonetic) a neuro-pathologist, is that 20 right? 21 DR. JACK CRANE: That's correct. I 22 didn't have Dr. Ramsey's report. 23 MR. JAMES LOCKYER: And Dr. Ramsey's 24 report say you're aware that he was retained on behalf of 25 Joshua's mother to -- he attended the re-autopsy after

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1 the exhumation of Joshua's body? 2 DR. JACK CRANE: Yes. 3 MR. JAMES LOCKYER: Okay. And you've now 4 seen his report, is that right, sir? 5 DR. JACK CRANE: Yes, I have. 6 MR. JAMES LOCKYER: And presumably, would 7 I be right in saying that this was a good case for one 8 (1) to engage the services of a neuro-pathologist, sir? 9 DR. JACK CRANE: Well I think a case 10 involving a head injury, or potential head injury, I 11 think a neuro-pathology opinion is -- is very important, 12 yes. 13 MR. JAMES LOCKYER: And of course this 14 was a case of a potential head injury at the very least? 15 DR. JACK CRANE: Yes. 16 MR. JAMES LOCKYER: Because of what Dr. 17 Smith had been saying? 18 DR. JACK CRANE: That's correct. 19 MR. JAMES LOCKYER: And Dr Ramsey's 20 report, sir, is found at PFP131367. It's Tab 15, I 21 think, of Dr. Crane's materials. Binder 6, Tab 15. 22 DR. JACK CRANE: Now which -- 23 MR. MARK SANDLER: Binder 1. 24 COMMISSIONER STEPHEN GOUDGE: Binder 1. 25 MR. JAMES LOCKYER: Oh, I've got -- okay.

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1 Sorry, I've got binder 6, volume I, for some reason. 2 COMMISSIONER STEPHEN GOUDGE: It's Dr. 3 Crane's volume I. 4 DR. JACK CRANE: It's my volume I. 5 6 CONTINUED BY MR. JAMES LOCKYER: 7 MR. JAMES LOCKYER: At Tab 15, have you - 8 - this is Dr. Ramsey's report, -- 9 DR. JACK CRANE: Yes. 10 MR. JAMES LOCKYER: -- dated July 23rd, 11 2007? 12 DR. JACK CRANE: Yes, I see. 13 MR. JAMES LOCKYER: And you've read the 14 report, sir? 15 DR. JACK CRANE: Yes, I have. 16 MR. JAMES LOCKYER: And could you give us 17 a quick opinion of Dr. Ramsey's report? I'm sorry, we 18 don't have it up yet. PFP131367. 19 DR. JACK CRANE: In any particular 20 regard, Mr. Lockyer? 21 MR. JAMES LOCKYER: No, I'm just talking 22 in a general level, and then I was going to go to his 23 actual conclusions. 24 DR. JACK CRANE: It seems a very 25 reasonable report.

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1 MR. JAMES LOCKYER: Okay. And if you go 2 to page 5, sir, where his conclusions begin? 3 DR. JACK CRANE: Yes. 4 MR. JAMES LOCKYER: And they say, at the 5 bottom of page 5: 6 "There is no evidence of a skull 7 fracture. The histological 8 abnormalities that Dr. Smith 9 interpreted as a skull fracture was 10 simply the normal appearance of a joint 11 between skull bones." 12 DR. JACK CRANE: Yes. 13 MR. JAMES LOCKYER: 14 "The abnormalities of the scalp remain 15 unexplained and no tissues available to 16 allow their approximate age to be 17 determined under the microscope. 18 Therefore, Dr. Smith's suggestion that 19 they could have been caused by 20 resuscitation efforts, while 21 reasonable, are unverifiable. The 22 minor abnormalities of the left 23 temporalis muscle, while they might be 24 hemorrhages, could also be artifacts. 25 There's no evidence that these

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1 abnormalities had a major or fatal 2 effect on the central nervous system. 3 There is evidence of recent minor 4 intradural, subdural, and subarachnoid 5 bleeding; these are most likely to be 6 artifacts. And there's evidence of all 7 minor subdural bleeding, but this is a 8 common finding in infants who die of 9 natural causes with no history of a 10 head injury. There's no evidence of 11 cerebral edema. The features that led 12 Dr. Smith to this conclusion are normal 13 findings, that is, the brain weight is 14 normal, the size of the cerebral 15 ventricles is normal, and tonsillar 16 notches may be a normal finding. 17 Moreover, the photographs show no 18 evidence of flattening of the surface 19 of the brain. There is no 20 neuropathological explanation for 21 Joshua's death." 22 Would you agree with those conclusions, 23 sir? 24 DR. JACK CRANE: Yes, the only perhaps 25 minor one (1) is that I thought there might have been a

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1 slight degree of -- of cerebral edema, but in saying 2 that, and I think I've explained to the Commission, to me 3 it is not something of significance that one can attach 4 any reliance to as being indicative of a head injury. 5 MR. JAMES LOCKYER: All right, but the 6 balance of -- apart from that one (1) qualification, 7 you'd agree with his conclusion. 8 DR. JACK CRANE: Yes. 9 MR. JAMES LOCKYER: The second issue I 10 wanted to raise with you, sir, in the context of this 11 case and the only other issue takes us again back, if I 12 may, to page 5 of your medicolegal report, sir, which is 13 again PFP135527, at page 5. 14 DR. JACK CRANE: Yes. 15 MR. JAMES LOCKYER: The second to last 16 paragraph on page 5 and it's the last three (3) lines of 17 the paragraph, they're already highlighted and, again, 18 were read to you by Dr. Smith's counsel: 19 "The significant finding in this case 20 you say is a mediphysio fracture of the 21 lower end of the left tibia. Such an 22 injury may occur as a result of 23 deliberate abuse, that is, the child is 24 lifted and swung by the leg. Such an 25 isolated skeletal injury would

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1 necessitate further investigation." 2 Do you remember Dr. Smith's counsel, I 3 think, read this passage to you, as well, sir? 4 DR. JACK CRANE: Yes. 5 MR. JAMES LOCKYER: First of all, before 6 I go any further, that particular injury could result 7 from natural or unnatural causes, is that right? 8 DR. JACK CRANE: Well, not natural; I 9 think we mean -- 10 MR. JAMES LOCKYER: Was the wrong word. 11 DR. JACK CRANE: -- accidental. 12 MR. JAMES LOCKYER: Accidental or non- 13 accidental cause? 14 DR. JACK CRANE: Yes, it could. 15 MR. JAMES LOCKYER: All right. And if we 16 go to PFP151840, it's Tab 16, sir, of yours. This is a 17 letter, sir, addressed to Commission counsel by myself 18 October 10th of 2007. I understand you've seen this 19 letter, sir. 20 DR. JACK CRANE: Yes, I have. 21 MR. JAMES LOCKYER: And if we go to page 22 2 of that letter, sir, under the heading "The left tibia 23 fracture", there's two (2) or three (3) pages about that 24 fracture appearing in this letter, is that right? 25 DR. JACK CRANE: Yes, there is.

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1 MR. JAMES LOCKYER: One (1) of the issues 2 that's unclear -- now, you've never seen the left tibia 3 yourself, sir? 4 DR. JACK CRANE: No, I haven't, and my 5 understanding is that sections were taken off of it, but 6 I haven't seen those whenever I did my review. 7 MR. JAMES LOCKYER: And you understand 8 it's not entirely clear the age of that fracture, sir, 9 whether it's recent or not? 10 DR. JACK CRANE: Yes. My impression was 11 that it was healing, that -- 12 MR. JAMES LOCKYER: Yes. 13 DR. JACK CRANE: -- but I mean I wasn't 14 able to confirm that because I -- I didn't see it. 15 MR. JAMES LOCKYER: And -- and Dr. 16 Babyn's review of the -- of the x-ray did not reveal any 17 signs of healing, is that right? 18 DR. JACK CRANE: That's correct. 19 Although in saying that, histological examination might - 20 - might show evidence that hasn't appeared on -- on the 21 x-ray, that's possible. 22 MR. JAMES LOCKYER: All right. And if we 23 go to page 4, sir, of this document you'll see that under 24 item 3, an anaesthetist at the hospital, Donato 25 Guggliotta, said in his statement, and this, I should

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1 tell you, is his statement to the police back in -- 2 sorry, get the year right, I think it's 1998: 3 "At one point -- 4 And this is during the attempt to revive 5 Joshua in the hospital. 6 "At one point a loud snap was heard. 7 The presumption was that he had passed 8 the cortex of the bone into the 9 medulla. And he was asked in his 10 testimony, 'Can you account for the 11 small broken bone -- " 12 This is at the preliminary hearing. 13 " -- at the baby's left ankle?" 14 Answer: 15 "I believe that the break in the left 16 distal tibia was sustained during the 17 attempt at establishing an interosseous 18 line on the same side." 19 And there was other evidence, as well, 20 through statements to the police and at the preliminary 21 hearing in -- in similar regard, are you aware of that, 22 sir? 23 DR. JACK CRANE: Yes. 24 MR. JAMES LOCKYER: And they're outlined 25 in this letter. Did you have -- you didn't -- I don't

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1 think you had this information, either, when you did your 2 report. 3 DR. JACK CRANE: I had not, no. 4 MR. JAMES LOCKYER: Okay. And is that a 5 -- if -- assuming it's a recent fracture, is that a 6 reasonable explanation, sir, for the fracture? 7 DR. JACK CRANE: If the fracture is 8 recent, that certainly could be an explanation for the 9 fracture, yes. 10 MR. JAMES LOCKYER: All right. Those are 11 my questions with respect to Joshua's case, sir. 12 Dr. Butt, I wanted to ask you some 13 questions about Baby F. You -- you told us, sir, in your 14 evidence, that Baby F could have died in utero, during 15 birth or after birth. 16 Is that right? 17 DR. JOHN BUTT: Yes. 18 MR. JAMES LOCKYER: On -- on the evidence 19 that was before you? 20 DR. JOHN BUTT: Yes. 21 MR. JAMES LOCKYER: You noted, sir, that 22 one (1) of the points that you thought was of 23 significance was that Baby F's mother had had a vaginal 24 haemorrhage at the time of -- of the birth, and had 25 suffered anemia due to blood loss.

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1 Is that right? 2 DR. JOHN BUTT: That's correct. Yes. 3 MR. JAMES LOCKYER: And her haemoglobin 4 count was way down? 5 DR. JOHN BUTT: Yes. 6 MR. JAMES LOCKYER: And I think you said 7 you hadn't seen the documentation in that regard, and 8 that's now been made available to you. 9 Is that right, sir? 10 DR. JOHN BUTT: Yes. 11 MR. JAMES LOCKYER: Could we go to 12 PFP010884, please. And this is just one (1) of the 13 documents -- all right, if you look at -- if you go into 14 this document, and this is the only way I could number 15 the page -- oh, no. Sorry. 16 MR. MARK SANDLER: Excuse me, this is at 17 Tab 25 of the journals that have been filed. 18 19 CONTINUED BY MR. JAMES LOCKYER: 20 MR. JAMES LOCKYER: Sorry, yes it is. My 21 mistake. That's correct. Right. That's the document. 22 And what we're looking at here, sir, is a 23 typed diagnosis. There are a number of medical records, 24 obviously, in the file of the mother. But this is a -- a 25 summary, a typed summary, which sets out, to some degree,

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1 the anemia that she had suffered and her haemoglobin 2 count and the fact that it was way down. 3 Is that right, sir? 4 DR. JOHN BUTT: Yes. 5 MR. JAMES LOCKYER: Indicative of her 6 having had a haemorrhage? 7 DR. JOHN BUTT: Yes. 8 MR. JAMES LOCKYER: Which would 9 certainly, potentially, factor in to how Baby F may have 10 died? 11 DR. JOHN BUTT: Yes. 12 MR. MARK SANDLER: Commissioner, it's at 13 -- it's at page 889, if you're looking for it within the 14 tab. 15 COMMISSIONER STEPHEN GOUDGE: Yes, thank 16 you, Mr. Sandler. And I was. 17 18 CONTINUED BY MR. JAMES LOCKYER: 19 MR. JAMES LOCKYER: You also referred Dr. 20 Butt to a blood clot at the maternal end of the pacent -- 21 excuse me -- the placenta. 22 Is that right, sir? 23 DR. JOHN BUTT: The blood clot was on the 24 maternal side of the placenta. That's correct. 25 MR. JAMES LOCKYER: Yes. And I just

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1 wanted to take you to the overview report, sir, in this 2 regard. It's at PFP142804. It's Tab 18 for you, sir. 3 And take you to page 11; it's page 9 of the report. 4 MR. MARK SANDLER: It's at Tab 18 of Dr. 5 Butt's -- 6 COMMISSIONER STEPHEN GOUDGE: Dr. Butt's 7 material, I have it. 8 MR. JAMES LOCKYER: Right, yes, that's 9 what I said, yeah. 10 COMMISSIONER STEPHEN GOUDGE: What page, 11 Mr. Lockyer? 12 MR. JAMES LOCKYER: Page 9 of the 13 document, Mr. Commissioner. Page 11 for the purposes of 14 the screen. 15 16 CONTINUED BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: Paragraph 29, sir, we 18 have, perhaps, a good example of a police officer taking 19 notes of what the pathologist is saying to him in the 20 autopsy room. Actually, this is at his office, sorry, my 21 mistake. 22 At paragraph 29: 23 "According to Staff Sergeant Carlson's 24 notes, he and Dr. Walsh spoke again on 25 December 10, '96. Dr. Walsh had spoken

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1 to Dr. Morrow who indicated that Baby 2 F's mother did not have a torn cervix. 3 Dr. Walsh said that simple haemorrhages 4 in the placenta occur in about one (1) 5 case per thousand (1,000)." 6 Would you agree with that, sir? 7 DR. JOHN BUTT: I have no reason not to. 8 I'm not -- I'm -- I'm not that aware of the statistics, 9 but it -- it seems reasonable. 10 MR. JAMES LOCKYER: So, if that's a 11 reasonable figure, sir, it means that, for that reason 12 alone, we have a very unusual circumstance in Baby F's 13 case. 14 DR. JOHN BUTT: I have no reason to 15 disagree with that. I'm not sure what Dr. Walsh was 16 talking about when he said "simple haemorrhage" because 17 the haemorrhage that may have occurred in this case would 18 look to me to be a fairly serious haemorrhage from the 19 amount of blood that was present, and from the 20 description of the woman's haemoglobin when she went into 21 the hospital. 22 So there's a condition here which was 23 outlined, actually, by Dr. Walsh, I believe. 24 MR. JAMES LOCKYER: Mm-hm. 25 DR. JOHN BUTT: -- of one (1) of -- of

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1 abruptio placenta. 2 MR. JAMES LOCKYER: So it's -- it's 3 really a particularly unusual circumstance then? 4 DR. JOHN BUTT: It's not a common 5 circumstance, but it's a very threatening situation, yes. 6 MR. JAMES LOCKYER: Right. And 7 threatening for the infant? 8 DR. JOHN BUTT: Well, it can be 9 threatening for the mother, as well, but it is 10 threatening for the infant, yes. 11 MR. JAMES LOCKYER: Mm-hm. And you also 12 spoke in your evidence a couple of days ago, sir, when 13 you were covering this case on Tuesday about what you 14 called an infarction of the placenta that could be seen 15 under the microscope, and that's another way of saying 16 that there was dead tissued that was in the placenta that 17 could be seen under the microscope? 18 DR. JOHN BUTT: Yes, this is not an 19 uncommon thing to have small infarcts in the placenta, 20 but one (1) of the issues that I have learned as a result 21 of this case is that such infarcts may actually be 22 associated with the abruptio placenta, and may even -- 23 we're one to know about them in -- in utero, may be an 24 indication, for example, of a large infract that there 25 could be a problem with this condition and which is a

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1 prem -- which is a premature -- perhaps the wrong word, 2 but an early separation of the uterus and the placenta. 3 So that the placenta comes off in part or 4 in whole to an extent that a) causes haemorrhage, and b) 5 may be very threatening to the life of the child and, as 6 I said, before the mother. If the child hasn't been 7 engaged in the birth canal, the chances are if the whole 8 placenta came off that the child would suffer a rapid 9 anoxic death because it would have no oxygen in its own 10 circulation simply because there was no connection to the 11 mother anymore. 12 A partial separation, of course, more or 13 less the same thing and the whole issue, I mentioned 14 already, about threatening the mother's life. But as 15 well, the infant's life. 16 MR. JAMES LOCKYER: You men -- talked as 17 well on Tuesday, sir, about the fact that the placenta 18 was found to be encircling baby F's neck, is that -- 19 DR. JOHN BUTT: The -- the cord. 20 COMMISSIONER STEPHEN GOUDGE: The 21 umbilical cord. 22 23 CONTINUED BY MR. JAMES LOCKYER: 24 MR. JAMES LOCKYER: My mistake. Sorry, 25 yes. DR. JOHN BUTT: The cord.

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1 MR. JAMES LOCKYER: The cord. 2 DR. JOHN BUTT: Well, there -- there is a 3 set of photographs that are available which illustrate 4 this. The cord, which is usually about 20 inches long, 5 in this particular case, took a loop up over the child's 6 shoulder. 7 According to the post-mortem photographs, 8 around the neck once and then came down the front of the 9 child, but it's very difficult to see the complete 10 turnaround the child's neck because none of the 11 photographs show the back of the infant. 12 MR. JAMES LOCKYER: Mm-hm. And you did 13 say in your evidence that you thought Dr. Walsh had made 14 not of this in his report, and I -- I actually thing you 15 were in error in that regard. The only note that I could 16 find of it appeared in the notes of the police officer 17 attending the autopsy. 18 And this is -- if we go to PFP142804. I 19 think we're already there, yes, same document. If we go 20 to page 9 for -- for your purposes, sir, Registrar -- Mr. 21 Registrar. Page 7 for our purposes of the report. You'll 22 see this -- in paragraph 24, sir, right at the bottom of 23 the page, Staff Sergeant Carlson's notes from the autopsy 24 were as follows: 25 "14:56, Dr. Walsh arrived, child

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1 removed from box bags, umbilical cord 2 around neck area." 3 And as best I could tell, sir, that was 4 the only reference to that fact in the documentation in 5 the case. Dr. Walsh did not document it and neither did 6 Dr. Smith. 'Cause I don't believe there's any -- any 7 reason to believe Dr. Smith looked at the photographs in 8 this case. 9 DR. JOHN BUTT: In my review, it wasn't 10 apparent that Dr. Smith had seen the photographs, -- 11 MR. JAMES LOCKYER: Right. 12 DR. JOHN BUTT: -- and since I reviewed 13 this, I realized that Dr. Walsh did not record it. I 14 looked at that again on Tuesday, I think it was. 15 16 (BRIEF PAUSE) 17 18 MR. JAMES LOCKYER: If we also turn -- 19 while we're talking, sir, ab -- to the next page of the 20 report, page 10 or 8 for our purposes, Mr. Commissioner. 21 You'll see now that what -- we're in the midst of the 22 autopsy and we're again reading more of Sergeant -- Staff 23 Sergeant Carlson's notes. And under the entry for 16:02, 24 right at the bottom of the page, you'll see what would 25 appear to be the cause of death that's been provided to

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1 him by Dr. Walsh at the autopsy, and it reads as follows: 2 "Asphyxia, lack of oxygen, pm 3 completed, neo-natal death, non-violent 4 asphyxia due to obstruction." 5 Do you see that, sir? 6 DR. JOHN BUTT: I do. 7 MR. JAMES LOCKYER: Now, it's fair to 8 say, when we go to Dr. Walsh's ultimate report, he 9 doesn't use those words. He simply defines the cause of 10 death as being anoxia, -- 11 DR. JOHN BUTT: Yes. 12 MR. JAMES LOCKYER: -- is that right? 13 DR. JOHN BUTT: That's correct. 14 MR. JAMES LOCKYER: And is anoxia a -- 15 I'm not sure it's a word you would use, but if you were 16 to use the word, would it provide -- would it be a way of 17 summarizing the notes of Staff Sergeant Carlson as he 18 recorded, presumably what he's been told by Dr. Walsh, at 19 the end of the autopsy? 20 DR. JOHN BUTT: What do -- I'm not sure 21 what you mean. Do you mean it's the same as asphyxia? 22 Because that's what he's put down. 23 MR. JAMES LOCKYER: No, well no is anoxia 24 -- 25 DR. JOHN BUTT: He put down asphyxia,

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1 lack of oxygen. 2 MR. JAMES LOCKYER: Is anoxia the same as 3 neo-natal death non-violent asphyxia due to obstruction? 4 DR. JOHN BUTT: Well, let me go and break 5 that apart. 6 MR. JAMES LOCKYER: Yes. 7 DR. JOHN BUTT: First of all, neo-natal 8 death means that the child was born alive. 9 MR. JAMES LOCKYER: Yes. 10 DR. JOHN BUTT: The second thing is the 11 general term "asphyxia" is a very general term. We've 12 discussed that, and it does imply a lack of oxygen. In 13 some quarters, a lack of oxygen associated with a 14 mechanical obstruction of the airway, and that's implied 15 in this somehow, that there's some sort of form of 16 instruct -- obstruction. 17 The -- the pitfalls in the diagnosis of 18 death in the neo-natal period and during parturition, I 19 think I've described. And I'm not sure, as I've put in 20 the report that, you know, there were reservations about 21 whether this child was actually born alive, and about the 22 mechanism of death in this case. 23 MR. JAMES LOCKYER: I wasn't really 24 asking if you agreed with the conclusion as recorded by 25 Staff Sergeant Carlson; more, that if that was the

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1 conclusion that Dr. Walsh said to him in those four (4) 2 lines, that anoxia could be seen as a reasonable summary 3 of what the Staff Sergeant has recorded in his notes? 4 DR. JOHN BUTT: Yes. 5 MR. JAMES LOCKYER: Okay. Just to move 6 quickly on to this issue of was Baby F born alive. Baby 7 F died at midnight on November 28th, approximately, sir, 8 and her body was found by the police at 10:21 in the 9 evening on November 30th. 10 So some forty-six and a half (46 1/2) 11 hours or so later. Something in that vicinity. 12 DR. JOHN BUTT: Would you say the time 13 again, please? 14 MR. JAMES LOCKYER: Yeah, 10:20 in the 15 evening of November 30th. 16 DR. JOHN BUTT: Of the 30th, it was 17 found. 18 MR. JAMES LOCKYER: Yes. 19 DR. JOHN BUTT: Yes, but what was the 20 original -- 21 MR. JAMES LOCKYER: Midnight, November 22 28th, so we moved on, close to two (2) days. 23 DR. JOHN BUTT: Well it's about -- what 24 is it, about -- 25 MR. JAMES LOCKYER: Forty-six hours.

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1 DR. JOHN BUTT: Yes. All right. 2 MR. JAMES LOCKYER: Forty-six and a half 3 (46 1/2) hours if you like. 4 DR. JOHN BUTT: Right. 5 MR. JAMES LOCKYER: And one (1) of the 6 issues about whether or not -- or what significance to 7 place on the fact that there may have been air in the 8 lungs is whether or not decomposition has commenced; is 9 that right? That's one (1) way in which way air can 10 appear in the lungs, or what appears to be air. 11 DR. JOHN BUTT: Yes, gas. Yes, gas. 12 MR. JAMES LOCKYER: Yes. 13 DR. JOHN BUTT: Which, you know, is not - 14 - but you can't determine whether it's post-mortem tissue 15 gas or -- or whether it's air. 16 MR. JAMES LOCKYER: And I understand, 17 sir, you've looked at the photographs recently, and you 18 can see signs of decomposition on Baby F as -- as she is 19 on the autopsy table? 20 DR. JOHN BUTT: I asked for the 21 photographs recently, and I did find some greenish 22 discolouration around the child's face. 23 MR. JAMES LOCKYER: Which would be 24 indicative of decomposition? 25 DR. JOHN BUTT: It is an early feature of

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1 decomposition. 2 MR. JAMES LOCKYER: You were asked, I 3 think by Mr. Sandler, sir, right at the end of your 4 evidence on -- on Baby F, whether the pathology of Baby 5 F's case provided reasonable and probable grounds to lay 6 a charge if you had been there talking to the police. 7 The police -- if the police asked you for 8 that advice, Are there reasonable and probable grounds to 9 charge the mother with a homicidal offence, that your 10 answer would have been no. Do you remember that? 11 DR. JOHN BUTT: Well, I think that was my 12 answer. I know it was my answer, yes. 13 MR. JAMES LOCKYER: And would the same 14 answer apply in the case of baby M, sir? If that 15 question was asked of you? 16 DR. JOHN BUTT: Baby M? Yes, it would 17 apply in the case of baby M. 18 MR. JAMES LOCKYER: Dr. Milroy and Dr. 19 Butt, can I just ask you, just for the sake of 20 completeness, insofar as you've listened to and -- and 21 you're aware of Dr. Crane's conclusions on the case of 22 Joshua, do you agree with Dr. Crane's conclusions? 23 DR. CHRISTOPHER MILROY: Yes. 24 DR. JOHN BUTT: Yes, I do. 25 MR. JAMES LOCKYER: And, Dr. Milroy and

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1 Dr. Crane, if I can ask you the same question in relation 2 to baby F, do you agree with Dr. Butt's conclusions 3 regarding baby F? 4 DR. JACK CRANE: Yes, I do. 5 DR. CHRISTOPHER MILROY: Yes, I do. 6 MR. JAMES LOCKYER: If I could talk about 7 baby M, Dr. Butt. Defence counsel in the face of baby M, 8 sir, went to a gynecologist for a report, a Dr. 9 Steinburg. You're aware of that, Dr. Butt? 10 DR. JOHN BUTT: It -- it's in the 11 reference material. 12 MR. JAMES LOCKYER: Yes. If we could go 13 to the overview report, please, PFP142836. It's Tab 12 14 of binder 5, I think, page 35, right, Mr. Registrar, or 15 page 33 of the -- of our report, Mr. Commissioner. 16 COMMISSIONER STEPHEN GOUDGE: Thank you. 17 18 CONTINUED BY MR. JAMES LOCKYER: 19 MR. JAMES LOCKYER: At paragraph 95. At 20 paragraph 95, sir, we're actually in -- in the middle of 21 having large sections of Dr. Steinberg's report. He -- 22 he was a -- or he is, hopefully he is, an obst -- I said 23 a gynecologist, it's an obstetrician, my mistake -- of 24 women's health in St. Michael's Hospital in Toronto, and 25 an assistant professor at the University of Toronto.

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1 That's at paragraph 90, Mr. Commissioner. 2 His report was prepared on April 30th of 1994, and 3 paragraph 95, part of it is -- is quoted, sir. And I 4 just wanted to read a part of it, the last paragraph 5 commencing: 6 "Babe is born. After a period of 7 distress may undergo a period of 8 primary apnea where they do not breath. 9 They may then take a couple of gasps 10 upon stimulation, and after taking a 11 couple of gasps lapse into a period of 12 secondary apnea and eventually 13 respiratory and cardiac function fail. 14 While in a state of primary or 15 secondary apnea, the baby will not seem 16 to be breathing and will be cyanotic. 17 The combination of cyanosis and apnea 18 in a dark skin baby will present to a 19 casual examiner a picture of 20 nonviability. This could explain baby 21 M -- M's mother's impression that the 22 baby was dead and yet there was 23 evidence of air in the baby's lungs 24 from the initial gasps after the 25 primary apnea. A baby born in a cold

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1 environment will suffer respiratory 2 depression. And if the baby was lying 3 on the cold bathroom floor that could 4 account for some of the depression. 5 There is a suggestion that delivery was 6 traumatic and that the baby fell to the 7 floor. Although, there was no evidence 8 on intracranial haemorrhage, there was 9 some edema, and this would be 10 consistent with intrauterine hypoxia 11 during labour and delivery." 12 Would you agree with the statements 13 contained in -- in that paragraph of Dr. Steinberg's 14 report, Dr. Butt? 15 DR. JOHN BUTT: Yes, I would. And I 16 think people are aware of -- of -- for example, slapping 17 the baby that -- that -- I don't know where that comes 18 from or whether it's done, but -- but one (1) of the 19 things that commonly happens in order to stimulate a 20 child is to stick a catheter, you know, to clear the 21 suction -- or to clear the secretions that -- and the -- 22 the fluid still may be present in the baby's nose and 23 mouth. 24 And very often that stimulus will get over 25 the apneic period, so this is, in part, what he's talking

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1 about. But he's talking here about a more serious 2 situation, obviously, in which there may not be any 3 response at all. 4 MR. JAMES LOCKYER: So if we assume 5 aeration in baby M's case and -- in other words, that she 6 was born to an independent existence - perhaps a better 7 way of putting it - which you do not assume, I 8 understand? 9 DR. JOHN BUTT: Well, I -- we've been 10 through that. 11 MR. JAMES LOCKYER: Yes. 12 DR. JOHN BUTT: I don't assume that. 13 MR. JAMES LOCKYER: But -- but if we 14 assume hypothetically in fact Baby M was born alive in -- 15 DR. JOHN BUTT: Yes. 16 MR. JAMES LOCKYER: -- in laymen's terms. 17 If -- that there could be serious consequences if there 18 was a failure to immediately attend to that baby's 19 welfare. 20 DR. JOHN BUTT: Absolutely. 21 MR. JAMES LOCKYER: The -- the only other 22 point I wanted to make, sir, and it's -- it's perhaps 23 more a point for the record than anything else, is that 24 there is within the overview report a statement of the -- 25 of -- of the history of the case, so to speak, provided

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1 by the police to Dr. Smith which I think it's fair to say 2 that history contains an error which could have in some 3 way influenced Dr. Smith's subsequent conclusions on the 4 case. 5 It's found actually in the overview 6 report; it's at page 13, Mr. Registrar, for your 7 purposes, page 11 for ours, of the report, which elicits 8 the information provided by the police. 9 One would presume, anyway, it's -- to put 10 it like this, it's -- it's the short history that Dr. 11 Smith has provided in his report, which reads at 12 paragraph 41: 13 "This baby was born to a twenty-two 14 (22) year old woman who lived away from 15 home until several months before she 16 was delivered, and then moved home with 17 her parents, brother, and sister. She 18 concealed the pregnancy from her 19 family." 20 There is in fact, sir -- Dr. Butt, I -- I 21 think you probably know this, no evidence that she knew 22 she was pregnant. 23 DR. JOHN BUTT: That's my recollection. 24 MR. JAMES LOCKYER: Yes, so it's hard to 25 conceal something you don't know about. And I think Dr.

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1 Steinburg's (phonetic) report, a part of it that I didn't 2 read to you, sir, but is quoted in the overview report is 3 that that's not an unheard of thing to happen to someone 4 who's pregnant, that a woman can certainly be pregnant 5 without ever knowing. 6 DR. JOHN BUTT: Well, I -- you know I've 7 heard that -- I've heard that in doing forensic work; 8 I've heard that from the police in terms of similar 9 cases. 10 MR. JAMES LOCKYER: All right. 11 DR. JOHN BUTT: That's different sit -- 12 di -- different situations of precipitous delivery with 13 young mothers, I have heard that in the historical 14 material on more than one (1) occasion. 15 MR. JAMES LOCKYER: And Dr. Milroy, Dr. 16 Crane, insofar as you've reviewed Dr. Butt's report in 17 the Baby M case and, of course, listened to what he's had 18 to say, as well, in the last few minutes. 19 Is there anything -- do you both agree 20 with what Dr. Butt has written and said about Baby M's 21 case? 22 DR. JACK CRANE: Yes. 23 DR. CHRISTOPHER MILROY: Yes. 24 MR. JAMES LOCKYER: Thank you. Is this a 25 good time to break, Commissioner?

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1 COMMISSIONER STEPHEN GOUDGE: Yes. 2 You've had about half an hour of your time, Mr. Lockyer. 3 It looks like, for the benefit of counsel, the rest of 4 today will be Mr. Lockyer occupying time until 2:45, if 5 my math is correct, and then you, Mr. Carter, and then we 6 will close with you, Mr. Hauraney, for an hour. 7 I would like to break at about 4:15 or 8 4:20 today. My former Associate Chief Justice's report 9 on Civil Justice is being released at 4:30 and I would 10 like to be there, so, if we could rise now until 11:30. 11 MR. JAMES LOCKYER: I -- I had thought 12 Dr. Smith's counsel were going to offer me their unused 13 time, Mr. Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: If you can 15 work that out... 16 17 --- Upon recessing at 11:14 a.m. 18 --- Upon resuming at 11:35 a.m. 19 20 THE REGISTRAR: All rise. Please be 21 seated. 22 COMMISSIONER STEPHEN GOUDGE: Mr. 23 Lockyer...? 24 MR. JAMES LOCKYER: Thank you, Mr. 25 Commissioner.

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1 CONTINUED BY MR. JAMES LOCKYER: 2 MR. JAMES LOCKYER: Professor Milroy, I 3 want to talk a bit about the Tamara case now -- 4 DR. CHRISTOPHER MILROY: Yes. 5 MR. JAMES LOCKYER: -- and -- and perhaps 6 move straight into a -- this is what might be considered 7 a systemic side of that case. Yesterday you talked about 8 there being, in your opinion, a -- in essence, a strong 9 possibility of smothering, is that right -- 10 DR. CHRISTOPHER MILROY: Yes. 11 MR. JAMES LOCKYER: -- in the case on the 12 evidence -- 13 DR. CHRISTOPHER MILROY: Well -- 14 MR. JAMES LOCKYER: -- the pathological 15 evidence? 16 DR. CHRISTOPHER MILROY: Yes, some form 17 of upper airway obstruction. Can I -- 18 MR. JAMES LOCKYER: A strong possibility. 19 And then you were also asked by -- by Commission counsel 20 about Dr. Dowling's opinion and in -- in one (1) 21 paragraph he used two (2) different phrases. 22 He talked of it essentially being a 23 distinct possibility, remember that? 24 DR. CHRISTOPHER MILROY: Yes. 25 MR. JAMES LOCKYER: And then he talked

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1 about it being the only reasonable possibility? 2 DR. CHRISTOPHER MILROY: Yes. Well, I 3 agree with the former. 4 MR. JAMES LOCKYER: Right. 5 DR. CHRISTOPHER MILROY: I don't agree 6 with the latter, because I think there is a alternate 7 explanation. 8 MR. JAMES LOCKYER: Right. I was going 9 to say that the only reasonable possibility of -- of 10 those three (3) phrases is clearly the most advanced 11 stage. The only reasonable possibility in terms of being 12 definite. 13 DR. CHRISTOPHER MILROY: Yes. I mean, I 14 -- to be fair to Dr. Dowling, he may have been saying 15 this in any -- not this specific cas, but in -- in a 16 case, one can advance something as being the only 17 reasonable possibility as opposed to this specific case. 18 MR. JAMES LOCKYER: And I would think 19 that if you try and rank the three (3) possibilities, as 20 they've been presented in -- by you and by Dr. Dowling, 21 you'd say the least strong conclusion would be distinct 22 possibility; the strongest conclusion would be the only 23 reasonable possibility; and strong possibility, your 24 phrase, would fit somewhere in the middle of those two 25 (2)?

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1 DR. CHRISTOPHER MILROY: Yes, well, I 2 think distinct possibility and strong possibility, you 3 can have some arguments over the symatics, but they -- I 4 regard those as similar. I agree that the only 5 reasonable possibility is pushing it much more. 6 MR. JAMES LOCKYER: And when you talk 7 strong possibility, sir, is that in contrast to strong 8 probability? 9 DR. CHRISTOPHER MILROY: Well -- yes -- I 10 -- I -- I think that -- I think there is a -- there 11 probably is a distinction between them, yes. 12 MR. JAMES LOCKYER: Now in -- in this 13 case, sir, your -- your opinion is that there is some 14 evidence that supports -- and I'm not trying to grade it 15 now, just that there is some evidence that supports a 16 conclusion of what is really a homicidal cause of death? 17 DR. CHRISTOPHER MILROY: Certainly, 18 homicide must -- must be in the equation. 19 MR. JAMES LOCKYER: Mm-hm. And that's 20 really where you applied yesterday, the words strong 21 possibility -- 22 DR. CHRISTOPHER MILROY: Yes. 23 MR. JAMES LOCKYER: -- in effect? 24 DR. CHRISTOPHER MILROY: Yes. 25 MR. JAMES LOCKYER: Yes? And that there

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1 is also some evidence arising from the examination of the 2 brain of a natural cause of death? 3 DR. CHRISTOPHER MILROY: With the fact 4 that there is scarring on the brain, there could be 5 seizure activity which could lead to death. 6 MR. JAMES LOCKYER: And an important part 7 of your strong possibility conclusion, as you expressed 8 it yesterday, is the injury to the fraenulum, I don't 9 know how you pronounce the word. 10 DR. CHRISTOPHER MILROY: The fraenulum is 11 the correct term. 12 MR. JAMES LOCKYER: The fraenulum meaning 13 the lip of Tamara, is that right, sir? 14 DR. CHRISTOPHER MILROY: Well that's how 15 you and us English might pronounce it. I can't always 16 comment about other people. 17 MR. JAMES LOCKYER: Meaning the lip of 18 Tamara, is that right? 19 DR. CHRISTOPHER MILROY: It's the inside 20 lip. 21 MR. JAMES LOCKYER: All right. 22 DR. CHRISTOPHER MILROY: It's that piece 23 of -- band of tissue that connects the lip to the gum. 24 MR. JAMES LOCKYER: And it's described by 25 Dr. Smith in his report as being .0 -- sorry, .2 by .3 of

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1 a centimetre? 2 DR. CHRISTOPHER MILROY: Yes. 3 MR. JAMES LOCKYER: So it's tiny? 4 DR. CHRISTOPHER MILROY: It's small -- 5 MR. JAMES LOCKYER: Yes. 6 DR. CHRISTOPHER MILROY: -- in anatomical 7 size. 8 MR. JAMES LOCKYER: Yes, all right. And 9 when you have two (2) options, sir, like that, you have 10 something that leads you in one (1) direction, homicide, 11 and then you have a positive finding that can also lead 12 you in another direction, non-homicide, natural cause. 13 Is it really appropriate, Dr. Milroy, to 14 put more weight on one (1) side than the other when the 15 evidence can drag you either way? 16 DR. CHRISTOPHER MILROY: Well I think -- 17 I think it is. I think that you -- I mean, ultimately of 18 course, what an expert is expressing in a common-law 19 jurisdiction, is an opinion. It is the jury to decide at 20 the end of hearing that opinion how much weight they 21 place on it. 22 But I think that -- I mean, it's always my 23 understanding that it -- that the expert he's there to 24 give their opinion, otherwise, the evidence is avail -- 25 you know, it's -- that evidence which is beyond the

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1 ordinary knowledge of the jury. 2 And you could -- I think that's where you 3 give the possibilities and some weight to them. How 4 common is it to see someone dying of a seizure in the 5 absence of a previous history of any seizure with 6 scarring? You would say, well, that is -- it's not 7 something that I can exclude but it would be less -- it 8 would then be uncommon. 9 In some respects, of course, it's more 10 difficult to place statistics on -- well, "statistics" is 11 a bad word. Place strength upon a unnatural act because, 12 of course, that -- that involves a sort of act -- 13 external human activity. 14 MR. JAMES LOCKYER: Exactly. 15 DR. CHRISTOPHER MILROY: And, you know, 16 so, I mean, that's why -- you know, that's -- that's why 17 there are problems with -- with it, but I -- I think that 18 you can place -- well, you can provide the jury with 19 information about likelihoods based upon your pathology 20 knowledge and experience. And that is what I have 21 expressed in this tribunal. 22 MR. JAMES LOCKYER: Even in a case where 23 you're postulating a strong possibility of a homicidal 24 cause in which coincidentally there is physical evidence 25 that could provide a natural cause?

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1 DR. CHRISTOPHER MILROY: Well, yes, and 2 you give those -- you give those to the jury. 3 MR. JAMES LOCKYER: Well, you give them 4 to the jury, the question is the emphasis in which you 5 give them to the jury, -- 6 DR. CHRISTOPHER MILROY: Well, I think -- 7 well, -- 8 MR. JAMES LOCKYER: -- that's what I'm 9 focussed on. 10 DR. CHRISTOPHER MILROY: Yes. Well, I do 11 think that you have to place weight upon your -- the 12 likelihood and experience to do it. 13 MR. JAMES LOCKYER: Okay. Doesn't that 14 bring you straight back to the Canning's -- sorry, the 15 cot problem, sir, that essentially you're trying to 16 balance likelihoods as an expert. And a jury could be 17 unduly swayed by your opinion if they think to 18 themselves, well, perhaps what he's saying is in six (6) 19 cases out of ten (10), this would more likely be homicide 20 and in four (4) cases out of ten (10) it wouldn't be? 21 DR. CHRISTOPHER MILROY: Well, I think 22 that there was a difference. And in my instance, the 23 trouble with what -- what Sir Roy Meadows did was he gave 24 -- he -- he took two (2) statistics and he conflated 25 them, and as a non-statistician went completely out of

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1 his area of expertise. And I do think there is a 2 difference. 3 MR. JAMES LOCKYER: Well, Professor 4 Meadows said among -- besides the statistics, he told the 5 jury, as I recall, that two (2) deaths of SIDS in the 6 same family -- and I think I'm quoting -- very, very, 7 very rare. 8 Do you remember that? 9 DR. CHRISTOPHER MILROY: He -- yeah, he - 10 - he did a couple of things. He took the statistic of 11 one (1) in -- 12 MR. JAMES LOCKYER: Yeah, I'm leaving 13 statistical side. 14 DR. CHRISTOPHER MILROY: -- and -- and 15 multiply those. He also said it was like backing a grand 16 national horse at, I think it was, a hundred (100) to one 17 (1) and winning in consecutive years at one hundred (100) 18 to one (1), which is -- I actually think that the 19 statement that SIDS in families being consecutive -- cot 20 death or SIDS deaths in families being very rare -- 21 MR. JAMES LOCKYER: Mm-hm. 22 DR. CHRISTOPHER MILROY: -- is correct, 23 but -- 24 MR. JAMES LOCKYER: Right. 25 DR. CHRISTOPHER MILROY: -- he hasn't

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1 given the alternative suggestion that there then may, of 2 course, be a genetic abnormality that accounts for why 3 it's rare but in that individual family would then be 4 very common. That's the -- that's the -- 5 MR. JAMES LOCKYER: Mm-hm. 6 DR. CHRISTOPHER MILROY: -- difference. 7 But we're dealing there with multiple deaths, we're 8 dealing here with a single death and there is -- again, 9 there is a difference. 10 MR. JAMES LOCKYER: Right. I -- I'm 11 sure, but Professor Meadows, I think, actually used the 12 words, "very, very, very rare," quote/unquote in his 13 evidence. 14 DR. CHRISTOPHER MILROY: I -- I can't 15 recall whether he did. I -- I don't dispute that. 16 MR. JAMES LOCKYER: But I'm wondering if 17 he did -- I mean, if he did use those words, it would 18 seem to me, in a sense, that he's quite right. It is 19 very, very, very rare -- 20 DR. CHRISTOPHER MILROY: Well, that's 21 what I'm saying. He's 22 MR. JAMES LOCKYER: -- for -- 23 DR. CHRISTOPHER MILROY: Yes. 24 MR. JAMES LOCKYER: -- one (1) family to 25 loose two (2) children to SIDS.

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1 DR. CHRISTOPHER MILROY: Yes. 2 MR. JAMES LOCKYER: But is it appropriate 3 for a jury to hear that even if you then qualify it by 4 saying, it's very, very, very rare. But, of course, by 5 saying that, by definition, very, very, very rarely it 6 happens. 7 DR. CHRISTOPHER MILROY: I mean, I 8 suppose you could also argue that infantaci -- 9 consecutive infanticide is very, very, very rare, as 10 well, -- 11 MR. JAMES LOCKYER: Of course. 12 DR. CHRISTOPHER MILROY: -- in a family. 13 I -- I think that -- I think that those multiple cot 14 deaths were a peculiar set of cases. I mean, I have to 15 tell you that subsequent to that and at the time, that -- 16 and even in an inquest where I -- Sir Roy Meadows sat 17 next to me, where we had a series of multiple deaths. 18 He said that they were natural because 19 they were -- they were a different -- they just couldn't 20 have been -- they just couldn't have been unnatural just 21 because of the nature of the circumstances, which he 22 didn't -- did -- need not go in. 23 But I think that that was a peculiar 24 thing, but I think that if you are going to have that 25 sort of statement read, that is true, but I think you've

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1 got to then qualify it quite significantly and say, but, 2 of course, we don't know -- and I don't know that this 3 was brought out by Meadows. 4 He should have said, we don't know that 5 there isn't a genetic abnormality in this family, 6 something that we can't exclude -- we can't exclude 7 natural causes. 8 I should also add with respect to the 9 Sally Clark case, it has to be said that there remained, 10 to this day, conflicting theories or opinions about how 11 those children died. 12 And it is by no means certain what the 13 specific causes of death of those children were, and that 14 was accepted by the Court of Appeal but, of course, the - 15 - the reason why the appeal was successful was because of 16 the -- the influ -- the influential evidence that Meadows 17 had given, and the failure to disclose information. 18 MR. JAMES LOCKYER: If -- if we go back 19 to Tamara's case, sir, something you said yesterday, and 20 it's really in much the same context as this no show, 21 whether it's appropriate to say a strong possibility. 22 You said that "for a child of this age," and Tamara was 23 thirteen (13) months old, "a natural death is very rare", 24 and -- and I think I'm quoting you when you said that. 25 And it seemed to me when you said that

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1 yesterday that you said that presenting it as an 2 appropriate thing to say to a jury, as well, if you 3 visualised this being a trial in front of a jury. 4 DR. CHRISTOPHER MILROY: Well, I think it 5 is a natural -- it is a rare event for a sudden and 6 unexpected death to occur at this age. 7 MR. JAMES LOCKYER: But is it appropriate 8 to say that to a jury? 9 DR. CHRISTOPHER MILROY: Well, that's 10 just -- I think it's a fact, isn't it? So -- 11 MR. JAMES LOCKYER: Whether or not it is, 12 is it appropriate to say it to a jury? 13 DR. CHRISTOPHER MILROY: Well, I don't 14 see why not if it's a fact. 15 MR. JAMES LOCKYER: So, it means in 16 Valin's case, as well, then, the -- the same remark would 17 be a legitimate thing to have said -- 18 DR. CHRISTOPHER MILROY: But -- 19 MR. JAMES LOCKYER: -- for the pu -- for 20 a pathologist testifying. 21 DR. CHRISTOPHER MILROY: Yes, but the -- 22 MR. JAMES LOCKYER: Valin was four (4), 23 even less -- even more rare, I would think. 24 DR. CHRISTOPHER MILROY: Well, the -- the 25 age drops off after -- after six (6) or seven (7) months,

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1 actually, and then it -- 2 MR. JAMES LOCKYER: Yes. 3 DR. CHRISTOPHER MILROY: But you would ha 4 -- you have to give the flip side; in Valin there was no 5 out -- there was no -- there was no pathological evidence 6 of -- to assert a nonnatural cause. 7 MR. JAMES LOCKYER: But in Tamara's case, 8 unlike Valin's case, you have a physical finding 9 consistent with a natural cause - 'consistent with' 10 dangerous word - that creates the possibility of a 11 natural cause. 12 DR. CHRISTOPHER MILROY: I agree. 13 MR. JAMES LOCKYER: It takes you one (1) 14 step ahead, so to speak. 15 DR. CHRISTOPHER MILROY: It is, because 16 there is a potential natural cause of death in Tamara. 17 MR. JAMES LOCKYER: What I want to 18 suggest to you really, I guess, and I -- I -- it's 19 probably pretty obvious that this is the -- the bottom 20 line I want to suggest to you, is that in Tamara's case, 21 if you were testifying today in Tamara's case, the best 22 you should say is that you can't exclude death by natural 23 causes, and explain why, and you can't exclude death by 24 nonnatural causes, and that you explain why. 25 DR. CHRISTOPHER MILROY: I mean --

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1 MR. JAMES LOCKYER: That's the furthest 2 you should take it. 3 DR. CHRISTOPHER MILROY: Well, I think 4 that you can give some -- you can give -- you can give 5 weight, but I would certainly not be saying this is 6 undoubtedly no question an unnatural death. 7 I would say these are the possibilities 8 and I would place more weight upon one (1) than the 9 other, but I certainly do not -- do not exclude this 10 being a natural death. 11 And there is -- I mean there -- for -- 12 there are two (2) basis for that; one (1), of course, is 13 that we don't -- we've got positive pathology to assert 14 that there may have been a natural death; it also would 15 have to be stated that for the same reason in -- in -- in 16 -- in Valin that there may have been a cardiac conduction 17 defect and I think that that's actually quite a likely 18 event in Valin. 19 I couldn't entirely exclude that in 20 Tamara, either. 21 MR. JAMES LOCKYER: I understand. Could 22 -- could we go to your medicolegal report on Tamara's 23 case, sir? It's at PFP135457; it's Volume -- Tab 34, I 24 think, in Volume II, sir, of your materials, page 7 of 25 the document.

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1 First of all, at the top, sir, and it's 2 there, the second line is the only comment I think you 3 make about the -- the fraenulum. You say: 4 "Acute tears..." 5 I'm sorry, now you've commented on the finding and then 6 you say: 7 "Acute tears to the fraenulum are 8 typical of abuse, though they are 9 sometimes attributed to resuscitation 10 where there is little or no tissue 11 reaction." 12 Right? 13 DR. CHRISTOPHER MILROY: Yes. 14 MR. JAMES LOCKYER: So the injury to the 15 fraenulum in this case of Tamara could ha -- could be 16 attributed to resuscitation, it's conceivable that's how 17 it -- 18 DR. CHRISTOPHER MILROY: I wouldn't 19 exclude that -- I wouldn't exclude resuscitation in this 20 case. 21 MR. JAMES LOCKYER: Right. And then 22 further down, sir, and -- and it's -- if you go down just 23 five (5) lines from the bottom of the same paragraph, you 24 say -- and this is where you comment on the potentially 25 natural cause of death, in -- the natural cause of death

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1 revealed through a physical finding -- 2 DR. CHRISTOPHER MILROY: Yeah. 3 MR. JAMES LOCKYER: -- at the autopsy. 4 And I appreciate there are other potential natural causes 5 as well. "In view of the changes in the brain 6 with as -- " 7 Can't do it. Could you -- 8 DR. CHRISTOPHER MILROY: Astroglyosis. 9 MR. JAMES LOCKYER: Thank you. 10 "In view of the changes in the brain 11 with astroglyosis, a seizure could have 12 occurred causing aspiration, though 13 this is unlikely." 14 Which, again, is -- is you commenting on 15 how likely something is or isn't. And wouldn't, if -- if 16 you're -- if it's appropriate for you to say that 17 something like that is "unlikely," again, would that be a 18 legitimate thing for a pathologist to say just in a SIDS 19 case? I mean, a SIDS case is unusual. So -- 20 DR. CHRISTOPHER MILROY: Well, no. 21 Because I think when you -- I mean, the reason why I 22 think that you can comment on the likelihood of a child 23 dying of a seizure is because we have evidence in -- in 24 general as to how common such an event is. 25 MR. JAMES LOCKYER: Sorry, I don't know

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1 what you mean by "event." 2 DR. CHRISTOPHER MILROY: Of death in 3 seizure -- 4 MR. JAMES LOCKYER: Yes. 5 DR. CHRISTOPHER MILROY: -- in children; 6 it's -- it's rare. 7 MR. JAMES LOCKYER: Right. 8 DR. CHRISTOPHER MILROY: It -- it's not a 9 common way that children die. 10 And, secondly, in this case, also, we 11 don't have any evidence of presia -- previous seizure 12 activity. So, we don't actually have any evidence that 13 the astroglyosis was causing the child any problems. 14 Now, I'm saying that -- 15 COMMISSIONER STEPHEN GOUDGE: Could you 16 explain "astroglyosis" in a sentence? 17 DR. CHRISTOPHER MILROY: Well, it's the 18 scarring -- it's -- 19 COMMISSIONER STEPHEN GOUDGE: That is the 20 scarring you -- 21 DR. CHRISTOPHER MILROY: -- it's the 22 scarring -- 23 COMMISSIONER STEPHEN GOUDGE: -- talked 24 about the other day? 25 DR. CHRISTOPHER MILROY: Yes.

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1 MR. JAMES LOCKYER: Right. 2 DR. CHRISTOPHER MILROY: It's the process 3 of that damage in healing. Once you have that in the 4 brain, there is potential for there to be seizure 5 activity. But that doesn't mean that there is, and that 6 there is no historic evidence, that I am aware of, in the 7 case of Tamara that she had seizure activity. 8 And that's, again, going to make it less 9 likely that seizure activity killed her, but it's 10 something that I would put forward. It would be wrong of 11 me to exclude. But I then I think can place weight on 12 the likelihood of it. 13 And I've actually been involved in this 14 argument before with cases as to whether you've had 15 sudden death due to seizure activity in a child, and the 16 pediatric -- I know that we've obtained the opinion of 17 pediatric neurologists who say, Well, actually sudden 18 death and seizure activity in children is -- is a very 19 uncommon event. 20 And I think that the Court would be 21 entitled to hear that piece of evidence. 22 23 CONTINUED BY MR. JAMES LOCKYER: 24 MR. JAMES LOCKYER: Dr. Crane, if -- if-- 25 COMMISSIONER STEPHEN GOUDGE: Before --

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1 MR. JAMES LOCKYER: Sorry. 2 COMMISSIONER STEPHEN GOUDGE: -- can I 3 just ask, again dealing with my counsel of perfection 4 hypothetical, Dr. Milroy, would it be helpful to explain 5 why you conclude, in that sentence, that it's unlikely; 6 that is, you offer two (2) reasons here? 7 DR. CHRISTOPHER MILROY: Well, I've given 8 those two (2) reasons. One (1) is that -- 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 DR. CHRISTOPHER MILROY: -- one (1) is 11 that seizure -- sudden death -- 12 COMMISSIONER STEPHEN GOUDGE: All I am 13 saying is, would it be -- would it be helpful to explain 14 it in the report? 15 DR. CHRISTOPHER MILROY: Oh, well, I -- I 16 think -- I could have expanded on it, yes, if it -- and I 17 think I -- I would probably -- what would happen if I had 18 written that in -- in -- in a report for a criminal 19 trial, I might have been asked what -- 20 COMMISSIONER STEPHEN GOUDGE: You would 21 have said, First, because it's a rare occurrence -- 22 DR. CHRISTOPHER MILROY: Yes. 23 COMMISSIONER STEPHEN GOUDGE: -- and, 24 secondly, because this had not caused seizures before, as 25 far as we know --

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1 DR. CHRISTOPHER MILROY: Yeah, and it's - 2 - 3 COMMISSIONER STEPHEN GOUDGE: -- in this 4 child. 5 DR. CHRISTOPHER MILROY: And if I hadn't 6 done that, I suspect that I -- they would have come back 7 and said we need you to expand, in writing, why you think 8 that this is unlikely. 9 10 CONTINUED BY MR. JAMES LOCKYER: 11 MR. JAMES LOCKYER: Dr. Crane, if you had 12 had this case, would you, if you were testifying before a 13 jury, have put more weight, for the jury, on the -- on -- 14 on a homicidal cause than a non-homicidal cause, or would 15 you struggle with that? 16 DR. JACK CRANE: I think I probably would 17 struggle a little with it. I certainly would refer to 18 the fraenulum injury as a worrying feature and one (1) 19 that may be indicative of abuse. 20 It's taking the next step that I would 21 have difficulty with. Because I think juries are 22 influenced by -- by what we think, and I sometimes, you 23 know, get concerned when pathologists have -- we 24 sometimes have gut feelings about things. And I don't 25 think that's how we should present our evidence --

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1 because we think that it's something. I think we have to 2 base it on something, so, I think I might have been 3 slightly more cautious than Professor Milroy. But that's 4 maybe just me. I'm a cautious person. 5 COMMISSIONER STEPHEN GOUDGE: The "gut 6 feeling" you speak of, Dr. Crane, would not be driven by 7 pathology evidence, but by a general sense of what you 8 knew about the case is that's why it concerns you? 9 DR. JACK CRANE: Yes, I mean, you know, 10 everything that you hear, I mean, you -- and it's a 11 dangerous thing to do but sometimes you do get a -- a 12 feeling for a case, you know, because of what people are 13 telling you and so forth, and -- and just you say, well, 14 there's something fishy here, there's something not -- 15 not quite right. 16 And I think it's always dangerous to put 17 that across unless you've got good evidence to 18 substantiate it. 19 COMMISSIONER STEPHEN GOUDGE: Presumably, 20 that is not a valid basis for putting anything in a 21 pathology report; on the other hand, the science might 22 permit you to differentiate in your views. 23 DR. JACK CRANE: Yes. And I -- I don't 24 think there's anything wrong with, for example, and I -- 25 I expressed this before, you know, being suspicious about

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1 something because, I mean, I think that you're alert to 2 possibilities and causes. Maybe a death is unnatural, I 3 think that that's good. 4 But I think when you come to putting 5 evidence across, I think there has to be a basis for 6 that. 7 8 CONTINUED BY MR. JAMES LOCKYER: 9 MR. JAMES LOCKYER: And Dr. Butt...? 10 DR. JOHN BUTT: Well, I agree with what - 11 - with what Professor Crane has said about it. I'd -- I 12 think the issue that he spoke of laterally can sometimes 13 be mentioned in a report where there is truly anecdotal 14 information, while it might not be appropriate to address 15 the issue, where there has been a suggestion of 16 something, it may be quite reasonable to address the 17 probability of that in the report. 18 And I think the illustration that he gave, 19 perhaps I'm a little bit off based -- base here, but I 20 think the issue of this fraenula area, in terms of 21 tumbles down the stairs versus a direct blow, is -- is an 22 area that needs to be elaborated in terms of statistical 23 probability and there's an area where the literature 24 comes in. 25 Pure speculation, just for the sake of

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1 speculating about circumstances isn't appropriate and -- 2 but it still doesn't mean that you can't answer the 3 questions of historical or circumstantial importance 4 where the differential diagnosis is concerned. 5 MR. JAMES LOCKYER: And Dr. Crane, would 6 you feel that in the case of the death of a -- a baby 7 over a year old, shall we say, as -- as Tamara was and 8 indeed as Valin was, it would be appropriate for you to 9 testify before a jury in examination-in-chief, in 10 essence, volunteer to a jury that the natural death of a 11 child of this age is very rare. 12 DR. JACK CRANE: And again, I -- I don't 13 think I probably would say that. I think I would say, my 14 approach might be: The autopsy did not, or -- or did 15 reveal evidence of natural disease which could have 16 caused the death. So, I think I would put it the other 17 way around, and if it doesn't -- there is no natural 18 disease that I find. I think I might be able to say 19 that. 20 MR. JAMES LOCKYER: So in this case you 21 would be comfortable saying to the jury, just to go back 22 to Tamara's case, I can't exclude natural causes and I 23 can't exclude homicide either? 24 DR. JACK CRANE: Yes, I -- I -- well, I 25 don't think I would use the word homicide.

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1 MR. JAMES LOCKYER: No, I know you 2 wouldn't. But, -- 3 DR. JACK CRANE: I -- 4 MR. JAMES LOCKYER: -- I found this to be 5 unnatural. 6 DR. JACK CRANE: An unnatural event, yes, 7 that's right. 8 MR. JAMES LOCKYER: Professor Milroy, if 9 I can just go back to -- or just not get back to, go to 10 one other issue in Tamara's case that may be of interest, 11 it's at page 5 of your report, sir. You point under 12 Item 4, Other Investigations, 13 "No microbiology or biochemistry was 14 described." 15 And the microbiology I -- as I understand 16 it, played a huge role in Sally Clark's case, and indeed 17 Dr. Williams' is ultimate disciplinary proceeding. 18 DR. CHRISTOPHER MILROY: That's correct. 19 MR. JAMES LOCKYER: Because he did get 20 microbiology results but failed to disclose them, is that 21 right? 22 DR. CHRISTOPHER MILROY: That's correct. 23 MR. JAMES LOCKYER: And the microbiology 24 results at least gave a hint as to a potential genetic 25 cause for the death of Sally Clark's children?

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1 DR. CHRISTOPHER MILROY: Yes. 2 MR. JAMES LOCKYER: Having got that out 3 the way, would I be right in saying, sir, that in these 4 kinds of cases microbiology and biochemistry really 5 should be automatic? 6 DR. CHRISTOPHER MILROY: The protocols 7 now do vary but certainly the Kennedy report protocol is 8 for cases under two (2) years of age and I think, in 9 fact, we're increasingly looking at genetic disorders at 10 older age groups. 11 MR. JAMES LOCKYER: Yes. 12 DR. CHRISTOPHER MILROY: We've done it in 13 Valin -- Valin as well, and the -- this is -- this is a 14 growing area of science, there's no question, but that I 15 -- if I had done Tamara today, there's no question that I 16 would have been sending off microbiology and 17 biochemistry. 18 MR. JAMES LOCKYER: I see it, sorry -- 19 DR. CHRISTOPHER MILROY: Well, because -- 20 and I would be looking at -- biochemistry you're 21 interested for a variety of reasons. Microbiology you're 22 interested, obviously, to see whether there was a 23 potential infection. You -- and genetic studies I would 24 be doing. 25 And to be fair, if you're going to -- in

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1 respect of Tamara, you would have to put an additional 2 caveat in respect of sub-natural disease, that there were 3 certain sub-natural diseases that were not excluded by 4 the failure to -- or apparent failure to do those 5 investigations. 6 MR. JAMES LOCKYER: Now there was an 7 attempt in the last couple of years through Dr. Pollanen 8 to do this kind of work in Valin's case, which I think 9 was unsuccessful. The samples were not of sufficient 10 quantity -- 11 DR. CHRISTOPHER MILROY: They -- 12 MR. JAMES LOCKYER: -- is that the right 13 way of putting it? 14 DR. CHRISTOPHER MILROY: -- well I think 15 they degraded. 16 MR. JAMES LOCKYER: Right. 17 DR. CHRISTOPHER MILROY: And it's not 18 always easy to get archival material and do genetic 19 testing on it. 20 MR. JAMES LOCKYER: Mm-hm. 21 DR. CHRISTOPHER MILROY: It's possible in 22 some cases. 23 MR. JAMES LOCKYER: So it might be 24 possible for all we know in Tamara's case? 25 DR. CHRISTOPHER MILROY: It might be

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1 possible to at least try for some of the channelopathies 2 that have been mentioned which are -- 3 MR. JAMES LOCKYER: Right. 4 DR. CHRISTOPHER MILROY: -- genetic 5 disorders of the heart that are associated with abnormal 6 rhythms. So there -- there is potentially one (1) other 7 thing that could be done. 8 MR. JAMES LOCKYER: All right. If I can 9 now move on -- sorry. 10 COMMISSIONER STEPHEN GOUDGE: Before you 11 move on, can I just ask, Dr. Milroy, you said that 12 current protocols would suggest that you would do 13 microbiology or biochemistry in a case like this today? 14 DR. CHRISTOPHER MILROY: The protocols we 15 have in England are for children under two (2). 16 COMMISSIONER STEPHEN GOUDGE: All 17 children under two (2), or only criminally suspicious 18 under two (2)? 19 DR. CHRISTOPHER MILROY: Well all 20 children under two (2) that are criminally suspicious or 21 where the death may be natural. 22 You're not going to do it in a child 23 that's -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. CHRISTOPHER MILROY: -- overtly

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1 homicidal if the child's been stabbed, shot, obviously, 2 it's a waste of public -- 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. CHRISTOPHER MILROY: -- money to do 5 them. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. CHRISTOPHER MILROY: But if you have 8 a sudden and une -- 9 COMMISSIONER STEPHEN GOUDGE: Or if it's 10 obviously a natural disease? 11 DR. CHRISTOPHER MILROY: Well if you find 12 -- if you -- if you find a natural disease process on 13 your microscopic examination. In fact, a piece of 14 caution that there are some -- it's worth doing it on -- 15 on some overtly homicidal cases, because I have had 16 defences proffer -- 17 COMMISSIONER STEPHEN GOUDGE: Natural 18 causes? 19 DR. CHRISTOPHER MILROY: -- natural micro 20 -- natural causes that -- and if you haven't, therefore, 21 done the exclusion tests -- 22 COMMISSIONER STEPHEN GOUDGE: When did 23 this protocol come into effect -- 24 DR. CHRISTOPHER MILROY: Casdy (phonetic) 25 protocol was --

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1 COMMISSIONER STEPHEN GOUDGE: -- in 2 England and Wales? 3 DR. CHRISTOPHER MILROY: -- from the mid 4 1990's. The Kennedy report just expanded upon it a 5 little. But bas -- 6 COMMISSIONER STEPHEN GOUDGE: Basically, 7 do you know off the top what the addition was, that 8 Kennedy introduced? 9 DR. CHRISTOPHER MILROY: Not much, a bit 10 about microbiology, I think. Genetic testing has become 11 more easy to do. 12 COMMISSIONER STEPHEN GOUDGE: Presumably 13 in the mid '90s, there wasn't a whole lot of genetic 14 testing? 15 DR. CHRISTOPHER MILROY: Well you could 16 do -- oh you could -- you could do some for some of the - 17 - some disorder -- there's a disorder of metabolism that 18 was associated with sudden death from -- during the 19 period we're talking about that could be tested for. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. CHRISTOPHER MILROY: And what -- what 22 you would do now is that, in fact, any sudden -- we 23 really ought to be looking at sudden expected deaths of - 24 - of people even in their teens and 20s if they collapse 25 and die out jogging, and you have a normal heart. You

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1 certainly should begin to look at whether you've got a 2 genetic abnormality. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. CHRISTOPHER MILROY: And the reason 5 for that is apart from the fact that you get your answer 6 for this person, you may well save the lives of other 7 people -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. CHRISTOPHER MILROY: -- because you-- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. CHRISTOPHER MILROY: -- they may -- 12 they can have -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. CHRISTOPHER MILROY: -- check overs 15 and implanted defibrillators and so on. So I think the 16 protocols now are we're pushing the age boundaries in 17 which we do them. 18 COMMISSIONER STEPHEN GOUDGE: Okay. And 19 when you say microbiology or biochemistry, is genetics 20 included within that? 21 DR. CHRISTOPHER MILROY: Well that's -- 22 that would be an additional -- well biochemistry can 23 involve genetics because -- but -- but to be specific, I 24 would also like to say -- 25 COMMISSIONER STEPHEN GOUDGE: You would

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1 express it specifically? 2 DR. CHRISTOPHER MILROY: Yes. I mean I 3 would -- I would -- I send off for the record, we send 4 off skin for fibre rust (phonetic) culture. Now we would 5 retain tissue and blood that you can use for genetic 6 testing. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 Thank you. Thanks, Mr. Lockyer. 9 10 CONTINUED BY MR. JAMES LOCKYER: 11 MR. JAMES LOCKYER: Gentlemen, I want to 12 move on now into perhaps some more -- more systemic 13 issues at a more general level in a number of areas. And 14 I want to begin with sort of postulating what we know 15 regarding Dr. Smith; that he practised for two (2) 16 decades, in essence, and, essentially, throughout those 17 two (2) decades, there -- there are some -- a few notable 18 exceptions. There were no forensic pathologist produced 19 by defence counsel to contradict the opinions that he 20 gave in the manner in which you gentlemen have been doing 21 it in so many of these cases. 22 And I wanted to just deal with that for a 23 few minutes, as to how that could be. And I want to 24 suggest, first of all, that it's part of a problem within 25 your own profession, and secondly, a problem within my

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1 own profession. 2 First of all, we had some reference to Dr. 3 Ferris's report of January 2006, and I wanted to get back 4 to that. It's at 058548, and at page 3 of that report -- 5 and you'll have to look at the screen, I'm sorry, I 6 didn't provide this to you -- page 3 of that report, 7 which is Dr. Ferris's report of January 12th, 2006. He 8 says -- and this is the passage just before the one (1) 9 that Dr. Smith's counsel read to you -- he says, under 10 "commentary": 11 "I welcome this opportunity to review 12 and clarify some of the opinions given 13 by me at the time of -- of the trial. 14 There's no doubt that, at that time, my 15 opinions were unduly influenced by the 16 apparent authoritative opinions given 17 by Dr. Smith and Mian, who strongly 18 supported the observations and opinions 19 of Dr. Zehr. I was concerned, at that 20 time, with the opinions expressed by 21 Dr. Smith in the case and, since that 22 time, I found myself disagreeing with 23 his forensic pathology opinion 24 expressed in several cases. And this 25 experience, including his work on the

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1 Sharon case, has made me extremely 2 cautious about the quality about his 3 forensic pathology work. I'm now aware 4 that his professionalism is being 5 questioned by others, and I was clearly 6 in error to accept, so readily, his 7 opinions in this case. Similarly, in 8 retrospect, I was wrong to have 9 accepted defence counsel's assumption 10 that Valin had been the victim of 11 sexual abuse and murder." 12 And then he comes back to this page 6 of 13 the same report where he says, under "conclusions": 14 "Having reviewed all the evidence and 15 materials referred to, it's clear that 16 my opinions were unduly influenced by 17 my instructions from defence counsel 18 and my ready acceptance from the 19 opinions of Doctors Zehr, Mian, and 20 Smith. It's now clear to me that these 21 influence reduced the level of 22 objectivity of my opinions that would 23 normally be expected from a forensic 24 pathologist of my experience." 25 And then in one (1) of the files, sir, --

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1 and I'm going to get to a question, obviously, but I 2 thought I needed to introduce this. In one (1) of the 3 files for one (1) of the cases that Dr. Butt spoke of; in 4 particular, the Baby M case, and -- and, Mr. 5 Commissioner, I've shown this document. 6 It's really a -- certainly, arguably, a 7 privileged document, but I have shown it to counsel for 8 Dr. Smith, for the coroner and, of course, Commission 9 counsel; they've seen it. 10 There was a memorandum in the file dated 11 March 8th of 1994, which read in, part, as follows. The 12 memorandum suggested that counsel had spoken to a doctor 13 from a local hospital in Toronto. And the memorandum 14 then says: 15 "The first question that was asked -- 16 that she asked, meaning the doctor that 17 we were consulting asked, was who the 18 pathologist was. I told her that it 19 was Dr. Charles Smith from Sick Kids. 20 She said, well, let me preface my 21 comments by indicating that he's the 22 foremost expert with respect to these 23 matters." 24 So she started off indicating that she 25 would not be prepared to go against his findings.

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1 So if you take what Dr. Ferris is saying - 2 - and -- and Dr. Ferris has been around, as I think you 3 all know for years and years -- and what this doctor is 4 saying that's being consulted by the defence, how do we 5 encounter that problem in the future, sir, that you have, 6 what might be called, an "icon" or someone perceived as 7 an icon in the profession who is giving a series of 8 opinions, which are now very much open to question, to 9 put it mildly. Who continued for two (2) decades and, 10 arguably, you might say, that part of the fault for that 11 falls on your profession. 12 How do you deal with that in terms of the 13 future; to make sure it doesn't happen in the future? 14 It's an open question. 15 DR. CHRISTOPHER MILROY: I mean, just to 16 go back historically in the United Kingdom -- well, in 17 England -- Sir Bernard Spilsbury, they used to say, 18 people hanged on his every word. 19 MR. JAMES LOCKYER: Yes. 20 DR. CHRISTOPHER MILROY: And they did, 21 literally, sometimes. And he was, essentially, 22 unchallengeable. And I think one (1) of the reasons that 23 he was unchallengeable, he was effectively the only -- 24 only practitioner. So, that's one (1) answer. 25 You need to have more than one (1) person.

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1 You need to have a group of people practising in a 2 speciality. 3 And I think the culture in England and 4 Wales has grown away -- I mean, the whole of the UK from 5 relying on any individual person, and no one is 6 unchallengeable now. 7 I think that the other point -- and, so, 8 that's important. And I think the peer review process 9 and the external peer review processes are important for 10 trying to improve this. 11 So I think those are -- those are 12 important steps. And the other thing to do -- I think -- 13 my opinion with what went wrong with Valin's case was 14 that there was an opinion expressed at the start on -- 15 with false interpretation. And no one took a step back 16 but just concentrated narrowly on the original opinion. 17 And that is something that you just have 18 to inculcate into people. Then need to step back with a 19 blank sheet of paper when they're reviewing things, and 20 go through it and say, Well, what really is the objective 21 evidence in that -- that case? Is there any fault with 22 the original procedures? Is there any -- is there any 23 failure to do things properly? And I think there were in 24 -- in Valin's case. 25 So, I think those are some of the steps,

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1 and I guess you're going to come on to talk about the 2 fault of the lawyers subsequently. 3 MR. JAMES LOCKYER: I am. 4 COMMISSIONER STEPHEN GOUDGE: It's 5 probably a longer subject. 6 MR. JAMES LOCKYER: Yes, well, then I 7 talk more about it. 8 9 CONTINUED BY MR. JAMES LOCKYER: 10 MR. JAMES LOCKYER: Dr. Butt, as someone 11 who practised in Can -- has practised in Canada for so 12 many years, I wouldn't mind -- I'd like to hear what you 13 think. 14 DR. JOHN BUTT: I think it -- 15 MR. JAMES LOCKYER: How it's different 16 for you -- 17 DR. JOHN BUTT: -- I think it's a very 18 large problem and, within the profession, it certainly 19 isn't restricted to forensic pathologists. 20 MR. JAMES LOCKYER: Mm-hm. 21 DR. JOHN BUTT: There are a number of 22 surgeons; for example, you could take a, for instance, 23 plastic surgery who -- who would decide that, because of 24 an august figure, et cetera -- you know where I'm going 25 with this -- that they would decline. And it's also an

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1 issue within the profession, and I don't think it's a 2 secret, to get doctors to testify for the defence. 3 And one hears this very commonly in civil 4 issues and so, I -- and I don't know how one overcomes 5 that. It's an -- in part, an issue of culture, without 6 question. It's a -- it's the issue of intimidation and, 7 within the culture of medicine, there is a certain 8 revering of figures beginning at the time that people are 9 in medical school and, so, that's part of the culture. 10 I mean, and it's very uncommon, or was 11 very uncommon, for medical students to speak up, for 12 example, to offer contrary theories based upon, probably, 13 what was very assiduous readings at the time, when the 14 surgeon, perhaps, hadn't even read the article. 15 So, this -- and I can't answer your 16 question except that where there is an opportunity such 17 as this to produce guidelines and things, that this is at 18 least a start. Because the consequences of it have been, 19 clearly, very carefully examined in the United Kingdom 20 and some good things, as we have heard, have come out of 21 this. 22 There's no such reference material here, 23 and it involves the Courts as well, in order to temper 24 these things. And that's about all I can say. I can't - 25 - I -- I think there are such things as developing areas

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1 within the profession; for example, more recognition for 2 the specialty, a greater interest in getting more people 3 involved in forensic pathology. 4 But, again, I go back to the issues of the 5 culture. So you could establish, for example, a special 6 section of the Canadian Association of Pathologists, 7 which is not a governing body. And you could have, you 8 know, maybe people talk about this sort of thing. 9 But I don't think that it overcomes issues 10 that are very close to being a part of the culture, and I 11 don't mean that unkindly towards the profession. 12 I think it's a professional issue in many 13 -- in many -- in many groups. And, so, I -- I just can't 14 answer the question more specifically then that. As 15 Professor Milroy says, there are other elements of this, 16 and I -- and I think that that's worth examining, and 17 we'll -- you know, we'll hear what you have to say about 18 the -- the lawyers and the courts. 19 MR. JAMES LOCKYER: Well I was going to 20 give Dr. Crane the chance to talk about the lawyers. 21 The -- 22 COMMISSIONER STEPHEN GOUDGE: Are you 23 going to move to the lawyers? 24 MR. JAMES LOCKYER: I was. 25 COMMISSIONER STEPHEN GOUDGE: Let me just

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1 ask a question of the three (3) of you. Is it a vain 2 hope to think that, in a shrinking world, the 3 international community of experts in this field is, 4 perhaps, something that will mute the problem that Mr. 5 Lockyer has called the "icon problem"? 6 DR. JOHN BUTT: Well, I think there's a 7 couple of things about that -- that. I mean, yes, I -- I 8 think the answer to your question is that -- that it is 9 happening. I mean, the cross-border exchange of -- of 10 expertise is, in part, what you're speaking of if I 11 understand you correctly. 12 COMMISSIONER STEPHEN GOUDGE: Well, 13 there's more of that now then there was fifteen (15) or 14 twenty (20) years ago? 15 DR. JOHN BUTT: I think there is 16 definitely. In my own practice now, which is 17 significantly towards consultations, I have a very 18 significant number of cases in the United States. 19 And, so, that's an example, and -- but how 20 often American experts visit in Canada in a variety of 21 medical fields, I wouldn't presume to know. But 22 certainly American forensic pathologists have been in 23 this Province on -- on numerous occasions. 24 Whether that's increasing -- and therein 25 may be something, you know, because there's perhaps a

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1 different country involved, or you have people who have 2 written text books, and the come in and the Canadian 3 leader in the area is suddenly is a little bit 4 diminished. And perhaps even a little intimidated, but-- 5 COMMISSIONER STEPHEN GOUDGE: Well, 6 that's really what I was getting at -- 7 DR. JOHN BUTT: Yeah. Yeah. 8 COMMISSIONER STEPHEN GOUDGE: -- whether 9 that's just a vain hope, Dr. Butt, or whether that's 10 something that we might all be able to benefit from as 11 time passes a little bit? 12 DR. JOHN BUTT: It may be -- it may be a 13 little ray of light on the subject, but where it's going 14 -- I don't think there's enough impetitus at the moment 15 to encourage it. 16 DR. CHRISTOPHER MILROY: Well, I was 17 going to say, having occasionally given evidence in -- in 18 criminal trials in different jurisdictions, you can be 19 treated differently, depending on the nature of the case. 20 I -- I think the most interesting one (1) 21 I did was actually in the Netherlands where we sat as a 22 panel, a bit like this, explaining to the Court of Appeal 23 our views on the case. 24 But there's no question that modern 25 technology there are more Internet discussion groups

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1 about things, there are -- there's much freer exchange of 2 photographs and of -- of opinions, and you can put 3 questions to colleagues around the world now. 4 I mean, you can -- one (1) Internet 5 discussion group I'm -- I'm involved, has people from 6 Canada, the United States, United Kingdom, Australia, 7 Germany; so, there is this growing exchange of 8 information. 9 COMMISSIONER STEPHEN GOUDGE: And is that 10 a ray of hope on this "icon" issue? 11 DR. CHRISTOPHER MILROY: I think it is. 12 I think -- because I think that people will -- 13 COMMISSIONER STEPHEN GOUDGE: To be 14 encouraged at any rate? 15 DR. CHRISTOPHER MILROY: Well, it's to be 16 encouraged. I think the prin -- one (1) of the big 17 problems you have in entrenched views that people will 18 not listen to -- you know, that Cromwell very famously 19 said to the kirk in 1650, "I beseech you, think ye not 20 wrong." 21 And that piece of advice of -- of 22 Cromwell, I think, applies to us today as much as -- as 23 it did to the Scottish kirk. 24 COMMISSIONER STEPHEN GOUDGE: Dr. Crane, 25 anything you want to add?

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1 DR. JACK CRANE: There's just one (1) 2 general point I wanted to make, and we -- we've had some 3 difficulties with forensic pathologists in -- in the UK, 4 as you know, and it's been eluded to earlier. 5 And the problems we have had have been 6 practitioners who essentially have been working in 7 isolation. And I think that's a very dangerous place to 8 be. Because you have your own ideas, and often as you go 9 on, you re-enforce your own ideas. 10 And -- and I think that for pathology -- I 11 think it's very important that they work in some sort of 12 institutional setting. And that allows the peer review, 13 that allows the case discussion. 14 And similarly, cross-fertilization with 15 different departments, while in the same country or 16 elsewhere, I think hopefully should get rid of that. But 17 I think it's always very dangerous if you have a 18 practitioner working on their own without that cross- 19 fertilization. 20 COMMISSIONER STEPHEN GOUDGE: Thanks. 21 DR. CHRISTOPHER MILROY: Can I just add 22 one (1) other point to that, which is -- and I -- this is 23 not meant as a -- to denigrate those peop -- people, but 24 I remember my boss said that the -- one (1) of the 25 problems with forensic pathology is that there are some

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1 people that think that any fool can be a forensic 2 pathologist, and then added, and many are. 3 And the -- the -- forensic pathology is 4 now a speciality in its own right. It's not something 5 that you tag on to other disciplines. And I think that 6 we should looking to have -- I think there -- there -- 7 obviously there are geographical considerations, but 8 full-time practitioners in forensic pathology and not 9 people who dabble. 10 And -- and the same applies -- come onto - 11 - to the lawyers. That the lawyers sometimes get people 12 who are no forensic pathologists to give their opinions 13 for the defence, and that's a disaster in itself because 14 their then not getting the right expertise. 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 Thank you. Thanks, Mr. Lockyer. 17 18 CONTINUED BY MR. JAMES LOCKYER: 19 MR. JAMES LOCKYER: Dr. Crane, I was 20 going to give you the -- the lawyer question and preface 21 it, if I may, this way. One (1) of the features of -- of 22 many of the cases that could be miscarriages of justice 23 as a result of the findings of -- of you three (3) and -- 24 and the other two (2) external reviewers; it -- it's 25 particularly well exemplified by the case of -- of

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1 Gaurov, which I know wasn't one (1) of your cases, but 2 nevertheless is a -- is a good exemplar. 3 Gaurov is a recent immigrant -- the 4 father, that is -- from a foreign country, from India, 5 doesn't speak English, is obvious -- is -- is in a very 6 low-paying job. His son dies within a year of coming to 7 Canada, and he's charged with second degree murder. 8 So he's suddenly faced with a very 9 terrifying situation, obviously -- the father -- as well 10 as a very tragic situation. His son has died. I think 11 his son was a -- a matter of a month or two (2) old. In 12 fact, he was two (2) months old at the time. 13 And facing an enormous penalty; life 14 imprisonment and the prospective of, indeed, just that. 15 What happens is that the prosecutor then makes an offer 16 to Gaurov's father's counsel of if the father will plead 17 to the crime of criminal negligence causing death, the 18 Crown will agree with a sentence of ninety (90) days, 19 weekends, and the murder charge will be withdrawn. 20 And you can well imagine the conversation 21 that would then have taken place between his counsel, the 22 interpreter, and the father; because the interpreter 23 would have to be in the middle of any exchange with the 24 father. You, Dr. Crane, of course, have dealt with 25 prosecutors and defence counsel for many, many years in

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1 your profession. But more than that, you've dealt with a 2 number of cases that are now acknowledged to be, and 3 known to be, miscarriages of justice in your jurisdiction 4 and -- and, of course, in the UK as well -- if I can call 5 that your jurisdiction; I guess it is. 6 And I -- I want you to talk, if you would, 7 for a little bit about the role of prosecutors and the 8 role of defence, the role of plea bargaining. It's an 9 enormous question, but I think it's -- we have got to 10 start somewhere. And I thought for someone of your 11 experience, you might be a good place to start. 12 You're on the outside looking in, but 13 you're also on the inside looking out; you're a bit of 14 both. And you don't have any bias, I'm sure, for or 15 against lawyers, so could you -- could you give us some 16 thought? 17 DR. JACK CRANE: Well, I hesitate to 18 criticize the -- the legal profession. What I -- what I 19 would say is that it's important that, if you're talking 20 about the defence, that they have adequate access to the 21 appropriate medical experts. I think that -- that's 22 important. 23 I -- I don't know how common it is in -- 24 in Canada that experts are called for the defence, but, I 25 mean, I think it is important that, certainly, defence

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1 should have easy access to medical experts because it may 2 be very easy, simply, just to accept what the -- the 3 Crown expert is saying. 4 And I think more and more, certainly in 5 the United Kingdom, the Crown expert is being challenged; 6 other reports are being sought, and -- and I think that 7 that's good. And, hopefully, that will help to ensure 8 that, you know, miscarriages of justice don't occur. 9 I -- I really don't want to stray into the 10 area of plea bargaining, I mean, that's something which, 11 I mean, I think is another issue, I don't know it's -- 12 it's a pathology issue. I think -- 13 MR. JAMES LOCKYER: Except that, if I 14 may, to take Gaurov's case; what happened to Gaurov was 15 as a consequence of pathological opinion. 16 DR. JACK CRANE: Yes. And if there was 17 flawed pathology, I mean, you know, so -- sobeit, if the 18 pathology was flawed. 19 MR. JAMES LOCKYER: But if -- if you have 20 a prosecutor doing what she did in the Gaurov case, and 21 the defence counsel doing what he did in the Gaurov case, 22 it seems to me, right there, you can see that there's an 23 acknowledgement, certainly, on -- really, on both sides - 24 - of a weakness of a pathological opinion that they're 25 adapting into this, sort of, ninety (90) days, weekends,

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1 for this man who doesn't even speak the language. 2 DR. JACK CRANE: Yes. But as I say, I 3 really think that's something that -- 4 MR. JAMES LOCKYER: All right. 5 DR. JACK CRANE: -- we'd have to deal 6 with. 7 MR. JAMES LOCKYER: I'm trying to 8 persuade you it's not. I didn't. 9 DR. JACK CRANE: I think something else 10 that we mentioned earlier, which I think is important, is 11 that it's important that experts do get together when 12 there are significant differences of opinion, for 13 instance. I think that's important. 14 We've heard about these icons who may have 15 very entrenched positions. I think that often long 16 before cases, perhaps, to go trial for before trial, I -- 17 I think experts getting together to see if they can 18 acknowledge areas of agreement. If the areas of 19 disagreement can be highlighted, I think that can very 20 important. I think that can be very helpful. 21 And there sometimes is reluctance on the 22 part of the lawyers to do that, to get -- let the experts 23 get together. But I -- I think the experts getting 24 together is -- is important, and I think it's important 25 to ensure that -- that justice is done.

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1 MR. JAMES LOCKYER: Mr. Milroy, I want to 2 ask you the same question. I want to add one (1) more 3 fact, if I may. Under the Legal Aid system in Ontario, 4 which certainly would normally be the system operating 5 for the majority of the cases that you've reviewed, if -- 6 I may be even right in saying all of them -- the legal 7 aid plan -- and this appears in their online 8 disbursements manual for anyone who wants to check it out 9 -- authorizes, at least initially, for the consultation 10 of a pathologist for a total eight (8) to ten (10) hours, 11 at a rate of a hundred ($100) dollars Canadian an hour. 12 And I can tell you from experience that 13 the plan is extremely reluctant to allow you to go out of 14 the jurisdiction because of the costs that become 15 associated with that. So, essentially, if you're working 16 within Ontario, you're really looking for retired 17 pathologists who were former -- likely former Government 18 pathologists; Dr. Jaffe being a classic example of 19 someone who was used time and again by the defence after 20 his retirement. 21 So, bearing that in mind as well, could 22 you -- could you comment on -- on the issue of counsel 23 and the role that you see them as playing in these cases? 24 DR. CHRISTOPHER MILROY: Well, I mean, 25 ultimately, of course, funding is a matter for the

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1 authorities, but it has to be said that, of course, if 2 you are looking to hire professional people and you're 3 going to offer them rates that are lower than a plumber, 4 you probably aren't going to get people very keen to do 5 it. And that's just a -- that's just a fact, and it 6 applies to all legal aid. 7 There is a tension between obtaining 8 appropriate help and obtaining -- and -- and funding it. 9 And those tensions apply in England, although I have to 10 say that the funding is considerably higher for legal aid 11 work. 12 MR. JAMES LOCKYER: Is that right? What 13 would they authorize by the hour in terms of pounds? 14 DR. CHRISTOPHER MILROY: I -- I think 15 it's up to -- I think it's up to about a hundred and 16 twenty (120) pounds an hour. 17 MR. JAMES LOCKYER: Okay. 18 DR. CHRISTOPHER MILROY: Up to -- for 19 criminal; the civil, for some peculiar reason, get -- 20 seem to get a lot -- lot more, but I don't do civil legal 21 aid work. 22 MR. JAMES LOCKYER: All right. Taking 23 the dollars and cents out of it, looking at it from a -- 24 DR. CHRISTOPHER MILROY: But -- but 25 that's --

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1 MR. JAMES LOCKYER: -- prosecutorial -- 2 DR. CHRISTOPHER MILROY: -- that's a 3 funding thing and then -- but I think that more 4 relevantly is that it is important that the counsel has 5 the right, under equality of arms, to obtain appropriate 6 advice. 7 MR. JAMES LOCKYER: Yes. 8 DR. CHRISTOPHER MILROY: There are 9 clearly cases that we have all been involved in where the 10 defence have come along and pointed out that the 11 prosecution case is not right on the pathology, and 12 without that there would be people now serving life 13 imprisonment. Of that, there is no doubt. 14 I think the other thing that -- that 15 counsel does have a duty to -- not quite sure how you'd 16 do this -- in one (1) sense is to get the appropriate 17 advice, and there are people who purport to be available 18 for the defence who are not the proper experts. 19 One (1) of the things that happens in 20 England is that the forensic pathology community is 21 available for both the prosecution and the defence, so 22 that people who do prosecution work in one (1) case can 23 be hired by the defence to do it on another. 24 Now, what I do in my region is I do 25 segregate and we, in our department, for a variety of

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1 logical reasons that you can understand, do not do -- 2 we're not consulted by the defence. Although I, 3 personally, would not have a problem with the defence 4 coming to see me and saying, Well, you know, what is the 5 case that you are putting forward in terms of the 6 pathology? 7 But I do think that people who work -- for 8 example, if you are working in the Province of Ontario, 9 as an example, it would be wrong for them to say, Because 10 your funding comes directly from the Province of Ontario, 11 you shouldn't be available, then, for the defence; that 12 would be an exclusion of help that the defence could 13 rightly be expected to be entitled to. 14 But you may say, Well, you know, if you're 15 working in the Toronto office, then you shouldn't do 16 defence work against your colleagues. That become 17 problematic, but maybe you go outside Toronto to the 18 other areas of expertise in the province or outside the 19 province. 20 COMMISSIONER STEPHEN GOUDGE: What are 21 the institutional reasons why your pathologists don't do 22 defence work? 23 DR. CHRISTOPHER MILROY: Well, because -- 24 well, we do do defence work; we just don't do it among 25 ourselves.

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1 COMMISSIONER STEPHEN GOUDGE: Okay. 2 DR. CHRISTOPHER MILROY: So I don't 3 defend -- I don't -- I mean you can imagine the problem 4 if I suddenly take a brief from a solicitor against my 5 more junior colleague, to stand up in Court and say, I 6 don't agree with you. 7 Well, then -- because then there's a -- 8 there's a -- there's a fault within our institution, if 9 I'm letting a report out that I don't agree with. So we 10 don't do it among ourselves. 11 So -- and -- and we have to cro -- we have 12 our duty to crosscheck our work and I'm an employee -- 13 COMMISSIONER STEPHEN GOUDGE: But you 14 would do it in another region. 15 DR. CHRISTOPHER MILROY: But I'll -- we 16 all go out -- well, I, especially, go and do it other 17 regions, yes. 18 COMMISSIONER STEPHEN GOUDGE: Okay. Can 19 I ask another question? Give me a sense of, if you can, 20 a normative amount of time that would be necessary to 21 prepare a defence opinion to write it and properly. 22 DR. CHRISTOPHER MILROY: Well, it depends 23 whether it involves going to look at -- do a 24 reexamination of the body. 25 COMMISSIONER STEPHEN GOUDGE: Okay.

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1 DR. CHRISTOPHER MILROY: That's usually, 2 depending on -- it's usually an hour or two (2) checking 3 over -- 4 COMMISSIONER STEPHEN GOUDGE: Take that 5 away. 6 DR. CHRISTOPHER MILROY: Take that away. 7 COMMISSIONER STEPHEN GOUDGE: You're 8 looking at photographs, you're looking at -- 9 DR. CHRISTOPHER MILROY: I would think -- 10 COMMISSIONER STEPHEN GOUDGE: -- slides. 11 DR. CHRISTOPHER MILROY: -- between five 12 (5) and ten (10) hours per ca -- the -- for a -- for a 13 routine case -- for what I call a "routine case." 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. CHRISTOPHER MILROY: I wouldn't call 16 Valin a routine case. By the time is gets to the -- that 17 -- that was a very long case, and I think it -- I think 18 it took it something of the order of forty (40) -- forty 19 (40) to fifty (50) hours to go through the material, but 20 that's -- that's an unusual case. 21 COMMISSIONER STEPHEN GOUDGE: Dr. Butt, I 22 see you nodding. Is that -- 23 DR. JOHN BUTT: Well, I think that, of 24 course, if you have trial transcripts, it's come to that, 25 and it increases it significantly.

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1 COMMISSIONER STEPHEN GOUDGE: But let's 2 assume this is before a trial. And your -- what you're 3 looking at, I -- 4 DR. JOHN BUTT: I -- I -- I ag -- I 5 agree. I -- I was going to say something probably a 6 little closer to ten (10) hours, but I think it's around 7 ten (10) hours. 8 COMMISSIONER STEPHEN GOUDGE: Dr. Crane, 9 that's a good normative number? 10 DR. JACK CRANE: Yes, it is. Yes. 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: Dr. Butt, do you have 14 anything to say about the role of counsel, both Crown and 15 defence, in Canada, in your experience? 16 DR. JOHN BUTT: I -- well, I've jotted a 17 few things down here, and I think that they generally 18 come out -- come -- come to the issue of -- of the -- not 19 only the lawyers, but also the Court system. And I think 20 there's a few things that are worth developing. 21 One (1) of the things is that the pedestal 22 that the expert rises on, gradually over the course of 23 the years is, in many ways, encouraged by the culture and 24 what happens in the courtroom. 25 MR. JAMES LOCKYER: Mm-hm.

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1 DR. JOHN BUTT: One (1) of the things 2 that happens in the courtroom in criminal cases where 3 forensic pathologists are concerned, in my opinion, is 4 that they get involved in areas where they shouldn't be 5 involved. 6 And we've seen good examples of this in 7 terms of the word "asphyxia" where there is no anatomical 8 cause of death, no pathological features, and yet there's 9 some sort of a mechanism that might spell very clearly 10 the issue of anoxia. 11 And I don't want to go down into the 12 technical aspects of it, but there's some -- there -- in 13 terms of the pathologist, I -- I agree that the 14 pathologist -- and my colleagues may take umbrage at what 15 I'm saying here, but I think there's a good understanding 16 by pathologists of what are called "pathophysiological 17 processes." 18 But, if you were looking clearly at some 19 form of a -- of an asphyxial death that you didn't 20 clearly understand, there's a good reason, for example, 21 to employ somebody like an anesthetist for an opinion. 22 Now, that might -- you know, you might 23 say, Well, that's kind of an unusual situation. The 24 problem is that the pathologist frequently gets shoe- 25 horned in to answering clinical questions in -- in the

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1 culture of the Court. 2 So, while we're thinking about it, doctor, 3 can you tell me what you feel the reaction would be to a 4 person who had a cocaine level of such-and-such? Well, 5 the real answer to that is, I'm sorry, I don't have any 6 experience with living people. And, you know, and so I 7 can read about it and that's all I can tell you about it. 8 So, I've -- I've illustrated that point, I 9 think. Of course, you have brought up the issue of 10 money, so -- but there's very few experts that come into 11 the court system, for a variety of reasons, and one (1) 12 of them is the issue of intimidation. 13 A -- a very noteworthy Canadian jurist of 14 several years ago, who is still around, by the name of 15 Milton Harridance once said at a meeting was 16 "doctors are too used to asking 17 questions and not used to answering 18 them." 19 And that's one (1) of the reasons why 20 certain experts won't come into the court system. We're 21 straying a little bit off the issue here. But the more 22 the doctor is encouraged within the -- within the 23 structure of the Court to answer questions and to get 24 away with answers that he may not have an expertise in, 25 the more the cult personality of the individual grows.

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1 And that's how you get into some of these 2 situations, in my opinion. 3 MR. JAMES LOCKYER: Well, that -- that 4 sort of brings me into the -- the next thing, and that is 5 how the icon image can sort of develop in -- in the 6 qualifications, which kind of concerns -- might be of 7 some concern. 8 If you look, for example, at Dr. Smith's 9 evidence in the -- the Paolo case. And, Mr. 10 Commissioner, this will be at PFP017346; Tab 6 of Volume 11 2, gentlemen. 12 MR. MARK SANDLER: It will be Volume 2 of 13 Dr. Crane's -- 14 MR. JAMES LOCKYER: Okay, I didn't know 15 that. Tab 6 -- the pages 104 to 105. 16 MR. MARK SANDLER: Are you asking for 17 some of the material on Paolo -- 18 MR. JAMES LOCKYER: Yes. I'm ask -- 19 MR. MARK SANDLER: -- that we dealt with 20 originally, or in the new material that you provided? 21 MR. JAMES LOCKYER: The evidence of Dr. 22 Smith at the trial, and I've given the PFP number. 23 COMMISSIONER STEPHEN GOUDGE: What's 24 the -- 25 MR. JAMES LOCKYER: PFP017346.

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1 COMMISSIONER STEPHEN GOUDGE: I don't 2 think that is in the original binder. 3 4 CONTINUED BY MR. JAMES LOCKYER: 5 MR. JAMES LOCKYER: And if you go to 6 pages 10 -- page 104, and at line 26; this is the 7 questioning of -- this is the qualification of Dr. Smith 8 in this case before the jury. And you'll see how his 9 answer -- at the bottom of the page there, he says -- 10 MR. MARK SANDLER: Excuse me for a 11 moment. It is in Volume 2; it's Tab 19, though. 12 COMMISSIONER STEPHEN GOUDGE: Okay, 13 thanks. 14 MR. JAMES LOCKYER: Okay, I have Tab 7, 15 sorry. 16 17 CONTINUED BY MR. JAMES LOCKYER: 18 MR. JAMES LOCKYER: Dr. Smith's talking 19 about the protocol, and he says: 20 "The protocol [that is the protocol 21 into dealing with SIDS cases he's 22 talking about] became a culmination of 23 an effort which began about fifteen 24 (15) years ago. I began pushing for 25 some changes in how pediatric forensic

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1 autopsies were done in Ontario, and to 2 start with the Office of the Chief 3 Coroner beginning in 1983, began 4 releasing guidelines about how these 5 examinations were to be done. And 6 these guidelines, largely, were 7 released in response to problems that 8 occurred; mistakes in cases, invest -- 9 mistakes in case investigations and 10 that sort of thing, and it finally 11 culminated in the group of us [which, 12 incidently, I'm interpreting through to 13 Dr. Cairns was one (1) of the three (3) 14 who did this, prepared this SIDS 15 protocol.] It finally culminated in 16 the group of us putting down on paper, 17 one (1) single document, that presented 18 a best effort for guiding people 19 through these investigations, which can 20 be complex. 21 They can be difficult, they can be 22 emotionally demanding. The protocol 23 came from that basis, a recognition 24 that guidelines were needed for people 25 who weren't involved in these kinds of

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1 death investigations on a frequent 2 basis." 3 And I think, gentlemen, one can well 4 imagine a jury hearing that and immediately coming to the 5 conclusion that they had an icon, in a -- in a sense, in 6 front of them. 7 And -- and then you see at the bottom of 8 that same page, Dr. Smith bringing out, in response to a 9 question: 10 "Are you ever in a position to be 11 supervising or assisting in some 12 capacity with other pathologists in 13 doing the same type of work as 14 yourself?" 15 And he explain: 16 "There are three (3) other path -- 17 pathologists in the unit who I work 18 with, yes." 19 Who are, of course, -- given he's -- 20 they've heard he's the Director of the Unit -- worked 21 under him. 22 And then if we move to another document 23 which gives a similar kind of introduction of Dr. Smith. 24 It's the -- the trial of Valin's uncle, and it's found at 25 PFP037014, which I have down as Volume 2, Tab 7.

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1 And if you go to page 69 of that document, 2 you're looking at Dr. Smith's examination-in-chief in the 3 trial of Valin's uncle. And just as an example, at the 4 bottom of that page, he's explaining: 5 "At the hospital [meaning at the Sick 6 Kids Hospital] there are three (3) of 7 us. I do the majority of the work, and 8 if I'm not there, someone has to stand 9 in my place. So I do that. The 10 Pediatric Forensic Pathology Unit is 11 unique. And we're not aware, or the 12 Chief Coroner isn't aware, that there's 13 any existence anywhere in North America 14 of such a unit. So because of that, I 15 probably do a little more of this kind 16 of work than anyone else in the 17 country." 18 And, whilst I appreciate it's legitimate 19 to qualify an expert, you can quickly how a jury could 20 assume that an expert with those kinds of qualifications 21 is an icon, in a sense. And -- 22 COMMISSIONER STEPHEN GOUDGE: You do not 23 quarrel with the accuracy of that? 24 25 CONTINUED BY MR. JAMES LOCKYER:

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1 MR. JAMES LOCKYER: I don't, I don't. 2 But does that help explain how -- I mean, Dr. Smith's 3 opinions, when we go through them, there's a -- an 4 obvious commonla -- commonality in them. For example, in 5 eight (8) of the cases that you looked at yesterday, 6 conclusions were drawn from petechial haemorrhages to the 7 thymus or strap muscle in the neck, which, as you've told 8 us, as nonspecific indicators; in essence, then, 9 indicators of nothing. 10 And yet, time after time after time, he's 11 giving testimony in this regard and writing reports in 12 this regard that no one seems to be challenging. And I'm 13 wondering if you can comment on -- on that, Dr. Milroy? 14 DR. CHRISTOPHER MILROY: Well, I -- I 15 think the -- there is an element of attention. I -- I've 16 actually seen it in a similar way presented in the UK, 17 actually, where, you know, someone claims to have done -- 18 to do the majority of the cases in -- in a region, and 19 certainly the -- the Court taking note of that. 20 I guess the way around it is to make sure 21 that you don't have a single -- single icon, but you have 22 to spread it around a bit, so that there are other people 23 who are -- you know, have -- who will be recognized to 24 have equal standing who can challenge. 25 It goes back to Spilsbury being

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1 unchallenged and so on. It's -- it's not a new problem; 2 it's been a tension throughout the history of forensic 3 pathology. 4 MR. JAMES LOCKYER: And, after lunch, I 5 want to go through the notion that in that position as 6 director of other pathologists, as -- as we see from a 7 couple of those answers that Dr. Smith gave -- he had 8 pathologists working under him -- that consideration, 9 perhaps, should be given to whether there should be a 10 review of their work, as well, given that they were 11 working under this icon and likely using the same notions 12 of him about pathology. 13 COMMISSIONER STEPHEN GOUDGE: You will do 14 that at two o'clock, Mr. Lockyer? 15 MR. JAMES LOCKYER: Yes, Mr. 16 Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: Rise until 18 then. 19 20 --- Upon recessing at 12:46 p.m. 21 --- Upon resuming at 2:02 p.m. 22 23 THE REGISTRAR: All rise. Please be 24 seated. 25 COMMISSIONER STEPHEN GOUDGE: Mr.

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1 Lockyer...? 2 3 4 CONTINUED BY MR. JAMES LOCKYER: 5 MR. JAMES LOCKYER: Thank you. Having 6 told you what I was going to do, gentlemen, I'm actually 7 going to do something else just because of time 8 constraints. I want to talk about the Criminal Cases 9 Review Commission a little, and -- and start with you, 10 Dr. Crane. 11 Because you have experience both with the 12 old British system, if only through having worked within 13 the present Canadian's Ministerial Review System, is that 14 right? 15 DR. JACK CRANE: That's right. 16 MR. JAMES LOCKYER: Which is identical to 17 -- for all intents and purposes -- to the old British 18 system. Because you were involved in both the Clayton- 19 Johnson case in Nova Scotia, and the Ron Dalton case in 20 Newfoundland, 21 Is that right, sir? 22 DR. JACK CRANE: That's correct. 23 MR. JAMES LOCKYER: And, of course, you 24 have considerable experience of the CCRC System as well. 25 Is that right, sir?

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1 DR. JACK CRANE: That's right. 2 MR. JAMES LOCKYER: And I think Mr. 3 Sandler brought out of you, you did one (1) of the first 4 cases, and that was the case of Patrick Nicholls. 5 Is that right, sir? 6 DR. JACK CRANE: I -- I gave an opinion 7 in the Nicholls case, yes. 8 MR. JAMES LOCKYER: And, Mr. 9 Commissioner, that's at PFP3001195, Tab 20, I think, for 10 -- for your purposes. 11 Could you just quickly describe the 12 essence of the Nicholls case, Dr. Crane? 13 DR. JACK CRANE: Patrick Nicholls was a 14 man who was convicted of -- of murder and robbery in 15 1975. I believe it was his housekeeper, I think, that he 16 was -- had been killed or was found dead. 17 And, as I say, this elderly woman was 18 found dead at her home where Nicholls lived; a lady 19 called Heath. And the -- the prosecution was based very 20 largely on evidence from the pathologists. In fact, both 21 the pathologist for the prosecution and the pathologist 22 for the defence' their evidence very much agreed. 23 Nicholls always maintained his -- his 24 innocence, and partly because of that, of course, he -- 25 he never was eligible for -- for parole. And he was in

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1 jail for over -- over twenty (20) years. 2 Subsequently the formation of the CCRC; 3 his case was referred to it, and the CCRC asked me to 4 look at the pathology evidence in relation to the death 5 of -- of Mrs. Heath. 6 MR. JAMES LOCKYER: Had he already been 7 turned down by the British Home Secretary Society? 8 DR. JACK CRANE: He had, yes. Normally 9 appeals would have been to the -- the Home Secretary 10 initially, and he'd been turned down in those. 11 MR. JAMES LOCKYER: That was some five 12 (5) or ten (10) years earlier? 13 DR. JACK CRANE: Previously, yes. 14 MR. JAMES LOCKYER: Yes. 15 DR. JACK CRANE: So I was asked to look 16 at the pathology, and the pathology in that case 17 indicated that this elderly woman, a) she had underlying 18 heart disease, and b) she had some minor injuries which, 19 in my view, were not life threatening, but were 20 consistent with a terminal collapse. 21 And one (1) of the pathologists involved 22 in the case originally -- again, it's -- it's an old 23 favourite -- opined that she had probably been 24 asphyxiated on the basis of microscopic changes in -- in 25 the lungs.

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1 What the lungs showed, in fact, was the 2 evidence of underlying chronic obstructive disease -- 3 chronic obstructive pulmonary disease in the form of a 4 condition known as emphysema. 5 And I felt that this woman's death was, in 6 fact, entirely natural, and she'd simple terminally 7 collapsed and -- and bumped her head and her face. 8 MR. JAMES LOCKYER: And, ultimately, Mr. 9 Nicholls conviction was quashed, and the Court of Appeal, 10 in fact, apologized to him, is that right, sir? 11 DR. JACK CRANE: That's correct. Of 12 course the -- the Crown weren't going to believe me, and 13 they engaged their pathologist subsequently; a Dr. 14 Jurvich (phonetic), who was a senior lecturer of 15 pathology at the Guys Hospital in London, and she 16 reviewed the case. 17 And she came to the same conclusions as I 18 did, and because of that then, in effect, the Crown 19 didn't sort of put up any opposition then whenever the 20 cane -- case came to appeal. 21 MR. JAMES LOCKYER: Now, the Criminal 22 Cases Review Commission, sir -- CCRC, for short -- came 23 into being after a Commission of Inquiry conducted by 24 Lord Runciman. 25 Is that right?

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1 DR. JACK CRANE: That's correct. 2 MR. JAMES LOCKYER: Okay, and that was in 3 response to what was considered an -- an inadequate 4 response by the criminal justice system in the UK, 5 particularly to a number of cases coming out of Northern 6 Ireland. 7 DR. JACK CRANE: That -- that's correct, 8 yes. 9 MR. JAMES LOCKYER: Well, coming out of 10 England, but involving Northern Irish politics. 11 DR. JACK CRANE: Tha -- that's right, 12 yes. These were people who had been convicted on often 13 terrorist related offences and such, right. 14 MR. JAMES LOCKYER: Right. And his 15 recommendation was quickly put into effect that such an 16 independent body be created to replace the Home Secretary 17 System. 18 DR. JACK CRANE: Yes, I mean the -- the 19 concern was that essentially it -- it was -- the Home 20 Secretary was making decisions as to whether our cases 21 should be referred or not, and it was felt that that was 22 not appropriate, it -- it wasn't transparent, it wasn't 23 independent, and so -- 24 COMMISSIONER STEPHEN GOUDGE: It should 25 be referred to the Court of Appeal.

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1 DR. JACK CRANE: The Home Secretary made 2 that decision, Commissioner, that's right. 3 4 5 CONTINUED BY MR. JAMES LOCKYER: 6 MR. JAMES LOCKYER: And just for 7 information, Dr. Crane, we've actually had five (5) 8 Commissions of Inquiry in Canada that have recommended, 9 in one (1) way or another, the creation of such a 10 Commission here that hasn't yet come to pass. 11 And, I wonder if you could take from your 12 perspective what you see as the advantages of the 13 independent tribunal that exists in England at the 14 moment, having worked on several cases within it. 15 DR. JACK CRANE: Well, I think, first of 16 all, that there is the important aspect of -- of 17 transparency. This is a completely independent body, so 18 people cannot accuse it of having some sort of vested 19 interest. Whereas, in the past, when the Home Secretary 20 was making that decision, people always felt that he had 21 a -- a vested interest in keeping the status quo and -- 22 and not upsetting the criminal justice system and making 23 complaints against it. 24 So when the CCRC was set up, this body was 25 completely independent; it -- it has no requirement to

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1 report to -- to government. The Commissioners are 2 completely independent, they're, if you like, almost 3 picked almost off the street; they're ordinary 4 individuals. 5 And they will look at a case in -- in a 6 very objective way; they have no ax to grind. And my 7 impression of the Commissioners is that they do a very 8 good job. They -- they take their work very seriously. 9 And they have the advantage, they can insist on material 10 being provided to them, so they have a lot of powers to 11 ensure that public bodies, for instance, provide them 12 with the appropriate material they need to consider a 13 case. 14 And, if necessary, they will engage 15 appropriate experts, whether they be medical or 16 scientific or -- or whatever. And having considered the 17 evidence, they -- they will then decide whether it's 18 appropriate or not to refer the case to the Court of 19 Appeal. 20 MR. JAMES LOCKYER: From a funding point 21 of view, sir, does an applicant need to have counsel? 22 DR. JACK CRANE: No, it's not necessary. 23 Clearly it -- it's beneficial if they do, but an ordinary 24 individual can make an application to the CCRC. 25 MR. JAMES LOCKYER: And then the CCRC

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1 will exercise all its powers -- 2 DR. JACK CRANE: Tha -- that's correct, 3 yes. 4 MR. JAMES LOCKYER: -- considering the 5 application of an individual. 6 DR. JACK CRANE: Yes. And that's 7 obviously important, because many individuals, you know, 8 are -- have limited funds and -- and, indeed ,some 9 individuals who make an application are, of course, in 10 prison. 11 MR. JAMES LOCKYER: And is the -- the -- 12 the Commissioners, sir, are they all lawyers or do they 13 come from other walks of life? 14 DR. JACK CRANE: They come from a wide 15 and varied background. One (1) of them, for instance, 16 was a television presenter; a chap called, David Jessel, 17 and he used to present programs about miscarriages of 18 justice. 19 MR. JAMES LOCKYER: Rough justice. 20 DR. JACK CRANE: Rough justice, that's 21 right. 22 MR. JAMES LOCKYER: Yes. 23 DR. JACK CRANE: And he's one (1) of the 24 Commissioners. 25 MR. JAMES LOCKYER: And are their

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1 decisions subject to judicial review, sir? 2 DR. JACK CRANE: Yes, I believe they are. 3 MR. JAMES LOCKYER: And have they been 4 reasonably speedy and -- as far as you know? 5 DR. JACK CRANE: I think the -- the 6 problem is that they, to some extent, have been 7 overwhelmed with the amount of work. But my 8 understanding is that they often will grade the -- the 9 seriousness of the cases, and the cases that they think 10 are more serious, they will -- they will try to deal with 11 as -- as quickly as possible. 12 MR. JAMES LOCKYER: Mr. Commissioner, 13 I've prepared the latest statistics that we could gleam 14 from their web site on cases reviewed and -- and so on, 15 since their existence, and I guess they came into 16 existence in 1997, is that your -- 17 DR. JACK CRANE: 1997, that's correct. 18 MR. JAMES LOCKYER: Yes. And if we -- 19 you have that list before you, sir? 20 DR. JACK CRANE: Yes, I have. 21 MR. JAMES LOCKYER: And you'll see that - 22 - that in that -- that in that ten (10) years, there have 23 been three hundred and seventy-six (376) referrals to the 24 Court of Appeal, a hundred and thirty-four (134) of those 25 being homicide convictions, and two hundred and forty-one

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1 (241) convictions quashed of the three hundred and 2 seventy-six (376) and, including in that figure, eighty 3 (80) homicide convictions that are quashed. 4 And are you fam -- sufficiently familiar 5 with the ministerial system, sir, to know whether those 6 numbers are what they are in terms of a multiple of how 7 things would have been in the ten (10) years before they 8 came into existence? 9 DR. JACK CRANE: I'm not with precise 10 figures, but my understanding is that the number of cases 11 that were referred by the Home Secretary was considerably 12 smaller. And, often, the cases that were referred, an 13 even smaller percentage were actually were convictions 14 quashed. 15 MR. JAMES LOCKYER: So it had, to your 16 understanding, a huge impact on the criminal justice 17 system in the UK? 18 DR. JACK CRANE: Yes, it has. And, of 19 course, it's -- it's important because it -- it gives 20 confidence to the whole criminal justice system; in other 21 words, that there is a mechanism for an independent 22 review of cases where there might possibly be a 23 miscarriage of justice. 24 MR. JAMES LOCKYER: And their power of 25 referral, sir -- perhaps, Mr. Commissioner, we could

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1 bring up PFP300053, Tab 17. 2 MR. MARK SANDLER: They're actually PDF 3 documents because of when they were requested just for 4 the Registrar. 5 6 CONTINUED BY MR. JAMES LOCKYER: 7 MR. JAMES LOCKYER: Right. So 300053. 8 And if we look at page 5 of that document, sir, we see 9 the power of referral contained in section 13 of the 10 Criminal Appeal Act of 1995, where it says: 11 "A reference of a conviction shall not 12 be made unless the Commission 13 considered that there is a real 14 possibility that the conviction would 15 not be upheld were the reference to be 16 made." 17 DR. JACK CRANE: That's correct. 18 MR. JAMES LOCKYER: And that's the 19 terminology -- the idea of a real possibility. 20 Is that right, sir? 21 DR. JACK CRANE: That's correct, yes. 22 MR. JAMES LOCKYER: Now, if I then move 23 back to what I said just before lunch, and perhaps -- 24 COMMISSIONER STEPHEN GOUDGE: Are you 25 moving away from this subject?

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1 MR. JAMES LOCKYER: Yes. 2 COMMISSIONER STEPHEN GOUDGE: Can I just 3 ask a question then, Dr. Crane, about how you, as a 4 pathologist, interface with the Commission? Do you 5 simply prepare a report at the request of the convicted 6 person, or in response to that, and forward it to them or 7 -- 8 DR. JACK CRANE: What would happen is if 9 they think that there -- there might be a pathology 10 issue, normally the Commission, then, will write to who - 11 - whoever they want. I mean, they're free to -- to write 12 to any pathologist. 13 They sometimes write to me. They -- 14 they'll engage Professor Milroy. So, they're free to 15 engage anyone that they think is appropriate. 16 COMMISSIONER STEPHEN GOUDGE: But you 17 don't get engaged by the applicant as it were? 18 DR. JACK CRANE: No. No. I get engaged 19 by the Commission, and they would ask me whether I might 20 be able to assist them in a particular matter. So it 21 might be, for example, a pathology issue, time of death 22 or something like that. They will then send me the 23 papers, and I will then prepare a report on their behalf 24 which they will then use when they consider the case and 25 decide whether it's going to be referred or not.

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1 COMMISSIONER STEPHEN GOUDGE: And 2 "sending you the papers" means if, for example, you are 3 reviewing the pathology, as you did in the Nicholls case, 4 getting the original materials and examining them? 5 DR. JACK CRANE: Yes. What they sent me 6 was the original post-mortem reports, the original 7 photographs; and what was particularly important was the 8 original slides, the microscope slides, and we were able 9 to retrieve those and -- and look at those. 10 COMMISSIONER STEPHEN GOUDGE: Okay. And 11 do you simply do a report or do you engage in a 12 discussion with them? How is your information 13 communicated? 14 DR. JACK CRANE: They would normally, as 15 I say, initially would write to me to engage my services. 16 And, depending on what may be required -- so I might get 17 a letter saying, Can we help them? And we'll say, Yeah, 18 we'll have a look at whatever material you've got. 19 We may write back to them, or I may write 20 back and say, Well, look, there's something else I need 21 or there's some further material we need -- 22 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 23 DR. JACK CRANE: -- we need to look at 24 something else. So there often is an exchange of -- of 25 correspondence. In some cases, I have -- they've asked

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1 me for an opinion and I have said, I'm not the best 2 person to consider this. I would suggest you go to 3 someone else who's more expertise in this area. 4 COMMISSIONER STEPHEN GOUDGE: Is there 5 any forum in which they can probe your opinion or get you 6 to elaborate or anything like that or is it all done by 7 way of your written opinion? 8 DR. JACK CRANE: It's all done by way of 9 written opinion, but in saying that, I have to say the 10 Commissioners are -- are very astute. So, if there is a 11 particular issue that they want addressed, they will 12 often ask for a supplementary report or they may actually 13 ask me to address specific points in my report. So they 14 may say to me, We're particularly interested in was this 15 person alive whenever they were supposed to be alive. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. JACK CRANE: Is the cause of death 18 reasonable? So they -- they sometimes do it that way. 19 COMMISSIONER STEPHEN GOUDGE: Right. And 20 you said in the Nicholls case, the Crown retained its own 21 pathologist. Was that to aid -- to supply a second 22 report to the Commissioner -- 23 DR. JACK CRANE: No. 24 COMMISSIONER STEPHEN GOUDGE: -- or was 25 that at the point of the Court of Appeal referral?

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1 DR. JACK CRANE: What had happened was 2 that on the basis of my report, the CCRC referred the 3 case then to the Court of Appeal. And then there was a - 4 - a barrister engaged on behalf of Nicholls, the 5 appellant and the other side, who obviously were 6 defending -- 7 COMMISSIONER STEPHEN GOUDGE: What we 8 would call a "fresh evidence application" -- 9 DR. JACK CRANE: Yes. 10 COMMISSIONER STEPHEN GOUDGE: -- was 11 made, and both you and the Crown's pathologist would have 12 had material in front of the courts? 13 DR. JACK CRANE: The other side engaged 14 another pathologist to see whether my report and the 15 conclusions that I had come to were reasonable or not. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 DR. CHRISTOPHER MILROY: Perhaps I should 18 just add in one (1) of the cases I was involved in, they 19 actually, having produced my report, then they, the 20 Commission, asked for some clarification -- 21 COMMISSIONER STEPHEN GOUDGE: In writing? 22 DR. CHRISTOPHER MILROY: -- in writing. 23 They then put my report to the appellant -- to the 24 Commission -- so the person replying to the CCRC, the 25 convicted prisoner, who then challenged and made certain

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1 points and raised certain questions. They were then put 2 back to me through the Commission. 3 So there was a -- 4 COMMISSIONER STEPHEN GOUDGE: A paper 5 exchange. 6 DR. CHRISTOPHER MILROY: There was a 7 paper exchange, and if you like, the to-ing and fro-ing 8 of questions, whilst before, as I understand it, they -- 9 they do this exercise until they feel they have the 10 information then the Commission sit down and they make a 11 decision as to whether to refer or not refer. 12 So -- so the appellant have part of -- and 13 active part in that process. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 Thanks. Thanks, Mr. Milroy. 16 17 CONTINUED BY MR. JAMES LOCKYER: 18 MR. JAMES LOCKYER: Professor Milroy, I 19 want to talk to you briefly about the Goldsmith Review 20 that arose out of the Sally Clark Case. 21 DR. CHRISTOPHER MILROY: Yes. 22 MR. JAMES LOCKYER: And that was a review 23 conducted by the Attorney General Goldsmith, Lord 24 Goldsmith? 25 DR. CHRISTOPHER MILROY: Yes.

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1 MR. JAMES LOCKYER: And it was a review 2 of ultimately two hundred and ninety-seven (297) cases of 3 child deaths, is that right? 4 DR. CHRISTOPHER MILROY: That's my 5 understanding. 6 MR. JAMES LOCKYER: As well as ninety- 7 seven (97) more shaken baby cases? 8 DR. CHRISTOPHER MILROY: That's my 9 understanding; about that number. 10 MR. JAMES LOCKYER: It's really a review 11 of four hundred (400) cases? 12 DR. CHRISTOPHER MILROY: Somewhere about 13 four hundred (400). 14 MR. JAMES LOCKYER: And if -- Mr. 15 Commissioner, if we bring up PFP300329, I have it down as 16 volume II, Tab 1. It would be new -- yeah, it would be 17 new stuff. 18 COMMISSIONER STEPHEN GOUDGE: I've got 19 that, thanks. 20 21 CONTINUED BY MR. JAMES LOCKYER: 22 MR. JAMES LOCKYER: And if we go to page 23 -- page 5, please? We see at paragraph 18, the sort of 24 the terms of reference of the review, meaning the types 25 of cases. The first matter that the IDG -- sorry, I've

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1 forgotten what that stands for. 2 Anyway, it needed to agree with the scope 3 of the review in relation to both the age of convictions 4 and the age -- 5 COMMISSIONER STEPHEN GOUDGE: It's the 6 Interdepartmental Group. 7 MR. JAMES LOCKYER: Thank you. 8 9 CONTINUED BY MR. JAMES LOCKYER: 10 MR. JAMES LOCKYER: Was the scope of the 11 review in relation to the age of convictions and the age 12 of the deceased. For the age of the conviction, it was 13 agreed that ten (10) years was both practicable and 14 realizable, and should ensure that all persons still in 15 custody were included in the review. 16 Secondly, the IDG agreed that the age of a 17 deceased child should be put up -- should be put at up to 18 two (2) years, which is double the medically-accepted 19 maximum age of children susceptible to SIDS, which allow 20 for the maximum capture of suitable cases. 21 And then paragraph 20, they set out that 22 they reviewed cases not just involving parents, but also 23 involding -- involving the convictions of carers. 24 Do you see that in paragraph 20, Professor 25 Milroy?

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1 DR. CHRISTOPHER MILROY: Yes. 2 MR. JAMES LOCKYER: And then the total 3 number of cases reviewed finally rose to two hundred and 4 ninety-seven (297). And then, without taking everyone to 5 it, at paragraph 42 of the same document talks about the 6 ninety-seven (97) additional shaken baby cases that were 7 reviewed by the Committee as well. 8 MR. JAMES LOCKYER: And do you think that 9 overview was a success, sir? Professor Milroy? 10 DR. CHRISTOPHER MILROY: It's difficult 11 for me to comment in one sense, in that it was -- 12 obviously th -- th -- I wasn't involved in it. I -- I 13 know one criticism that could be levelled against the 14 shaken baby review, was that they didn't have a 15 pathologist on it. 16 MR. JAMES LOCKYER: Right. 17 DR. CHRISTOPHER MILROY: They used a cl - 18 - pediatrician. I mean inevitably with Shaken Baby 19 Syndrome, the review will be dependent on -- if you like, 20 the -- the views held by the medical practitioners as to 21 whether they believe or do not believe in Shaken Baby 22 Syndrome as to how they then put them forward. 23 In other words, I suppose it's -- it's -- 24 it's -- it's a question of what you put into it is what 25 you're going to get out of it.

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1 But certainly, to my understanding, cases 2 did go back for review on that and other cases. I mean, 3 there were two (2) cases that I was involved in that went 4 back to the Court of Appeal. And -- and neither 5 conviction was overturned, it has to be said. 6 MR. JAMES LOCKYER: As I understand it, 7 the review recommended the referral, at least to the CCRC 8 of -- 9 DR. CHRISTOPHER MILROY: Yeah. 10 MR. JAMES LOCKYER: -- some twenty-eight 11 (28) cases of the 297. 12 DR. CHRISTOPHER MILROY: Yes. 13 MR. JAMES LOCKYER: Is that right, sir? 14 DR. CHRISTOPHER MILROY: I believe so. I 15 haven't got the figures directly in front of me. I think 16 that they -- but I -- that seems about right. 17 MR. JAMES LOCKYER: And eight (8) of the 18 SBS cases had already been referred and they added three 19 (3) more -- 20 DR. CHRISTOPHER MILROY: Yeah. 21 MR. JAMES LOCKYER: -- to that total. 22 DR. CHRISTOPHER MILROY: Yeah. 23 MR. JAMES LOCKYER: So ultimately some 24 thirty-nine (39) cases have been subjected to a -- at a 25 minimum, a CRCC review.

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1 DR. CHRISTOPHER MILROY: To a review, 2 yes. Well, to a further review, beyond this review, yes. 3 MR. JAMES LOCKYER: And then if we could, 4 Dr. Crane, if we could translate that into our situation 5 here in Ontario and consider its equivalent in Ontario. 6 At least where the Hospital for Sick 7 Children's pathology is concerned, sir, as you know, Dr. 8 Smith, for two (2) decades, was the Director of the 9 Pathology unit at the Hospital for Sick Children. 10 And I think we heard from his evidence, 11 just this morning, that a -- in 1998, no 1993 rather, 12 there were three (3) people working under him. And I'm 13 aware of at least four (4) pathologists who worked under 14 him who rendered pediatric -- who rendered opinions in 15 pediatric pathology cases. 16 And if we assume, sir, hopefully 17 reasonably, that they would have seen Dr. Smith as more 18 than just a Director, but also someone who directed them 19 to some extent in the way in which they form their 20 opinions, do you think that a Goldsmith Review at least 21 of the pathology coming out of the Hospital for Sick 22 Children, in the last decade or two, may be a good idea? 23 MR. MARK SANDLER: Forensic. 24 25 CONTINUED BY MR. JAMES LOCKYER:

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1 MR. JAMES LOCKYER: Forensic pathology, 2 yes. Yes, obviously -- of cases of people convicted? If 3 it were you, would you be looking for something like 4 that? 5 DR. JACK CRANE: Well, it's a tough call 6 for a pathologist to make. But I would say two (2) 7 things. 8 If for instance, an individual is 9 identified in the U.K. for instance, where there was some 10 concerns about the quality of that individual's work or 11 the evidence, for instance, that was a pathologist -- a 12 person had been giving in court, the procedure certainly 13 would be that -- th -- that individual's cases would be 14 reviewed. 15 I'm not just sure whether in the U.K. we 16 would necessarily then review everyone else who worked 17 with them. I suspect that that would not necessarily 18 happen. 19 But the other point I would make is that 20 the whole purpose of any review is, first of all, to 21 identify cases where there may possibly been some 22 problem. And of course, to maintain public confidence in 23 the system. 24 And it may be for the latter reason that 25 may -- one may feel that they may have to extend any

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1 review of the work done by an individual to perhaps 2 others. 3 DR. JAMES LOCKYER: If we go to the 4 Goldsmith Review again, sir, and look at the kinds of 5 cases they brought within its embrace. If we go to what 6 I believe is -- is a sort of a press release put out by 7 Lord Goldsmith at the conclusion of the review, it's 8 found at 033302. Okay, it's not -- 0 -- it's the wrong 9 number. 10 00 -- 033302. If we look at page 12 of 11 that document, sir, and this is Lord Goldsmith speaking, 12 so to speak, and describing what was done in this case, 13 at paragraph 17 he's talking about the cases here and 14 he's particularly talking about the shaken baby cases and 15 he says: 16 "There remained eighty-eight (88) cases 17 to consider. These comprise the 18 following: forty-nine (49) in which the 19 defendant had pleaded guilty to 20 manslaughter, twenty-two (22) in which 21 the defendant had been convicted of 22 manslaughter following trial; fifteen 23 (15) convictions for murder; and two 24 (2) pleas of guilty to infanticide." 25 And a point perhaps that I want to

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1 extrapolate from that, Dr. Crane, is that it included 2 then cases in which the defendants have pleaded guilty to 3 different crimes, is that right? 4 DR. JACK CRANE: Yes, that's correct. 5 MR. JAMES LOCKYER: Which, in many of the 6 cases that you've been discussing in the last few days, 7 you're aware is what has happened, defendants have 8 pleaded guilty to manslaughter or other crimes. 9 DR. JACK CRANE: Yes, I mean I -- I think 10 this person, at what you had said earlier, Mr. Lockyer, 11 is that there may be some form of plea bargaining between 12 counsel, yes. 13 MR. JAMES LOCKYER: Which may still lead 14 to a miscarriage of justice. 15 DR. JACK CRANE: Yes, and I suppose the - 16 - the -- the other thing that I -- I think it's fair to 17 say in relation to -- whether the review would require to 18 be extended or not is that this particular review was 19 particular interested in the Shaken Baby Syndrome and -- 20 and I'm sure Professor Whitwell will -- will comment more 21 on that. 22 Our views on this condition and this 23 syndrome ha -- have changed and, of course, if there are 24 convictions for SBS, there remains the possibility that 25 those convictions may be unsafe because there are those

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1 of us who are not convinced that this syndrome actually - 2 - actually exists. So -- so I think there's two (2) 3 ways; either looking at particular condition or looking 4 at a particular individual or individuals. 5 MR. JAMES LOCKYER: But there was also 6 the other half of Goldsmith, which was the two hundred 7 and ninety-seven (297) -- 8 DR. JACK CRANE: The other cases. 9 MR. JAMES LOCKYER: -- other cases, yes. 10 DR. JACK CRANE: That's correct. 11 MR. JAMES LOCKYER: And if we just look 12 at page 15 of the same document you'll see in paragraph 13 23 where Goldsmith says: 14 "I should conclude by again stressing 15 that my review in no way prevents any 16 person whose conviction involved SBS 17 features from taking legal advice and, 18 if appropriate, seeking leave to appeal 19 at a time to the Court of Appeal or to 20 refer the conviction to the Criminal 21 Cases Review Commission." 22 So there's an acknowledgement by Lord 23 Goldsmith of the two separate routes that these cases 24 could be reviewed, either by way of appealing in cases in 25 which there hadn't been a previous appeal by asking for

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1 an extension of time. 2 DR. JACK CRANE: Or going to the CCRC. 3 MR. JAMES LOCKYER: Or going -- if -- if 4 there had been an appeal and remedies have been 5 exhausted, going through the CCRC, is that right? 6 DR. JACK CRANE: That's correct. 7 MR. JAMES LOCKYER: So a Goldsmith 8 Review, if there were to be such a thing in this 9 province, could well include cases coming out of the 10 Hospital for Sick Children which fell within guidelines 11 of the nature of those that surrounded the Goldsmith 12 review. 13 DR. JACK CRANE: It could. 14 MR. JAMES LOCKYER: And in a jur -- in a 15 jurisdiction such as ours where you don't have a CCRC to 16 resort to at an individual case level, in other words, a 17 person who is protesting that he or she is the victim of 18 a miscarriage of justice, but hasn't got a CCRC to go to, 19 do you think that might provide more reason for the 20 setting up of some kind of systemic Goldsmith type 21 review, sir? 22 DR. JACK CRANE: Well, clearly that could 23 be one (1) route, yes. 24 MR. JAMES LOCKYER: Are you aware, sir, 25 of the recent report that came out regarding the Houston

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1 Forensic Science Laboratory? 2 DR. JACK CRANE: I saw, say, briefly some 3 of the documents here about it. 4 MR. JAMES LOCKYER: And having read what 5 you've read, sir, they -- they did what you -- they 6 recommended what you might call a Goldsmith type review 7 of cases in the Houston Lab as a result of finding a 8 number of errors that had occurred in the lab, is that 9 right? 10 DR. JACK CRANE: Yes. 11 MR. JAMES LOCKYER: Dr. Butt, I wonder if 12 you could comment on the notion of some type of Goldsmith 13 type review in the province, at least. 14 DR. JOHN BUTT: I think it's a reasonable 15 thing to do. I think that you made a qualifying comment 16 at the very end in your introduction of the question to - 17 - to Professor Cane, which was, the cases that had 18 resulted in convictions, is what I heard you say. 19 MR. JAMES LOCKYER: Yes. 20 DR. JOHN BUTT: And -- and -- and I think 21 that's a fair start. I really don't have anything more 22 to say about it than that. I'm not familiar with the 23 system, but it seems to me to be a reasonable thing to do 24 to clear up some misgivings that people may have about 25 the system, for lack of a permanent route to do -- to do

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1 -- to deal with that in the same way as the CCRA does. 2 So I -- I endorse it, yeah, under the 3 circumstances that -- under -- with the confines that 4 you've indicated in -- in the question. 5 MR. JAMES LOCKYER: Dr. Milroy...? 6 DR. CHRISTOPHER MILROY: I don't think I 7 have anything to add to those comments. 8 MR. JAMES LOCKYER: All right. I want to 9 suggest to you that one could also go a step further and 10 go beyond the Hospital for Sick Children and the 11 pediatric pathology cases that were done through that 12 hospital. 13 As you've heard and as you know, all three 14 (3) of you, from having looked at Valin's case, opinions 15 were being -- have been provided over the last decade, so 16 let's just cope with the last decade or so. 17 From a forensic pathologist outside 18 Toronto, Valin's case perhaps being a classic example 19 through -- through Dr. Rasaiah, and that this might also 20 raise antennae as to pediatric pathology cases outside 21 the Hospital for Sick Children are done by a pathologist 22 elsewhere, and I want to suggest to you that it might be, 23 to restore confidence in this province, it might be 24 appropriate to have a Goldsmith review of all pediatric 25 pathology cases in the province in the last decade or so

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1 in which convictions have resulted. 2 Dr. Crane...? 3 DR. JACK CRANE: Well, that might be 4 quite an undertaking and -- and what might require very 5 considerable resources to do that. But as you say, if -- 6 if there is concerns about pediatric pathology on -- on a 7 -- on a wider level, on a province wide level, and if you 8 feel that it's necessary to restore conf -- confidence in 9 the provision of pediatric pathology service, that may -- 10 that may be necessary. 11 MR. JAMES LOCKYER: And, of course, we 12 know Goldsmith's review did it on a national level, not 13 just a provincial level -- 14 DR. JACK CRANE: That's correct, yes. 15 MR. JAMES LOCKYER: -- but right across 16 the country. 17 DR. JACK CRANE: Yes. 18 MR. JAMES LOCKYER: And how -- I -- I 19 don't know -- I can't remember, how long did that review 20 take from its inception to its completion, sir, do you 21 know? 22 DR. JACK CRANE: I don't know; I think 23 you'd have to ask Professor Whitwell as she was involved. 24 DR. CHRISTOPHER MILROY: You know I 25 haven't had -- I -- well, it was reported in, what,

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1 February 2006 and the judgments of Canning were -- was it 2 2004 -- as it set up around about -- what is -- I guess 3 it's certainly under two (2) years. I've tried to think 4 of the -- I don't know exactly. 5 Professor Whitwell may be able to tell. 6 COMMISSIONER STEPHEN GOUDGE: What was 7 the pathology involved in the Goldsmith review? 8 DR. CHRISTOPHER MILROY: Well, that, I 9 think, was -- I'm -- I'm -- I'm not actually sure that 10 the -- there was, but there may have been input from 11 pathologists. 12 But I -- I certainly think one (1) 13 potential criticism is they seem to only have a 14 pediatrician on it. 15 COMMISSIONER STEPHEN GOUDGE: That's why 16 I asked. 17 DR. CHRISTOPHER MILROY: Yeah. I mean 18 there's always a question that you need the appropriate 19 people. Now, the pediatrician have a background or 20 experience in child abuse, but one would feel that if 21 you're going to look at pathology evidence you should 22 have a pathologist involved, whether they all -- we got - 23 - whether they got supplementary pathology evidence, I'm 24 not absolutely sure. 25 COMMISSIONER STEPHEN GOUDGE: So they

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1 didn't have to face the resource issue, where are the 2 pathologists to do the review -- 3 DR. CHRISTOPHER MILROY: I think it was a 4 number of limited people that were doing it. It wasn't a 5 large group of people. I think there were three (3) or 6 four (4) people involved in it. 7 COMMISSIONER STEPHEN GOUDGE: Of whom one 8 (1) was a pediatrician or do you know? 9 DR. CHRISTOPHER MILROY: I think we have 10 -- I ga -- I think -- yes, I think they had a lot -- I'm 11 not -- well, I'm not absolutely sure of the structure. 12 COMMISSIONER STEPHEN GOUDGE: Yes, if 13 you're not sure, don't -- 14 DR. CHRISTOPHER MILROY: I think probably 15 better not guess. 16 COMMISSIONER STEPHEN GOUDGE: Given what 17 you've said so far this week, that's probably right. 18 MR. JAMES LOCKYER: Mr. Commissioner, if 19 we go back to PFP300329, it may be of some help in that 20 regard. And go to page 7, and paragraph 23 gives you 21 some idea of how the review was conducted. 22 This was a very substantial exercise. "In 23 order to review each case" and, once again, I think this 24 is Lord Goldsmith speaking, so to speak: 25 "In order to review each case as

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1 expeditiously as possible, I 2 established the Central Review Team, a 3 small group of highly experienced 4 lawyers to work on the reviews 5 themselves, led by a project manager. 6 These staff were prosecutors with 7 substantial relevant background 8 expertise. The review team looked at 9 all the cases in order to simplify the 10 process and initial examination of all 11 cases were made by the CPS, Crown 12 Prosecution Service Area from which the 13 case came." 14 So that's maybe of some help, and -- and 15 if you read on, you'll see a little more development of - 16 - of how the review worked. 17 One (1) thing I was going to ask the 18 panel, the review of Dr. Smith's cases that you 19 panellists were a part of was conducted at the instance 20 of a small sub-committee of stakeholders from different 21 areas, not just from prosecution, correct? 22 DR. JACK CRANE: That's correct, yes. 23 MR. JAMES LOCKYER: And do you think 24 that's a better system if -- if there were to be system 25 of review set up, that the review committee should

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1 consist of stakeholders from -- or people from different 2 areas of life, so to speak, with different -- coming from 3 different stakeholders? 4 DR. JACK CRANE: Yes, I think that's how 5 you maintain confidence in any such procedure that -- 6 that those who feel they have an interest in it, are -- 7 are represented. 8 MR. JAMES LOCKYER: Mr. Commissioner, 9 those -- I think those are my questions. 10 COMMISSIONER STEPHEN GOUDGE: Thank you, 11 Mr. Lockyer, that's very helpful. 12 13 (BRIEF PAUSE) 14 15 CROSS-EXAMINATION BY MR. WILLIAM CARTER: 16 MR. WILLIAM CARTER: Gentlemen, my name 17 is Bill Carter, counsel for the Hospital for Sick 18 Children. I just want to ask you to address yourselves 19 to the point that was just raised by Mr. Lockyer 20 concerning the advisability and utility of reviewing the 21 coronial pathology work, and medicolegal work done in the 22 division of pathology at the Hospital for Sick Children 23 over the last twenty (20) or so years. 24 In the work that you were asked to do, I 25 understand that you were directed specifically to cases

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1 conducted by or with the assistance of Dr. Charles Smith. 2 But I would ask you, in the course of doing that, whether 3 any of you concluded that the work being done by his 4 colleagues at the Hospital for Sick Children was subject 5 to similar criticisms? 6 Could I ask you, Professor Milroy, to 7 address that question? 8 DR. CHRISTOPHER MILROY: I do not recall 9 seeing a case from the Hospital for Sick Children that 10 didn't involve Dr. Smith. 11 MR. WILLIAM CARTER: Okay. So you did 12 not see any work of his colleagues? 13 DR. CHRISTOPHER MILROY: Yes. I don't 14 have any basis to make a comment either way, in the sense 15 that it was all Dr. Smith, and not his colleagues. 16 MR. WILLIAM CARTER: Right. And you 17 would agree with me that the work that was done by Dr. 18 Smith, in those cases, where he was asked by the coroner 19 pursuant to a warrant to examine the body and assist the 20 coroner in answering the questions that are mandated by 21 the statute, was work done directly by Dr. Smith in the 22 scope of his professional work as a pathologist? 23 DR. CHRISTOPHER MILROY: Yes. 24 MR. WILLIAM CARTER: Yeah. And that's 25 the sort of work that somebody would engage in in

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1 accordance with the standards of their profession. 2 That's a professional responsibility that 3 he's discharging, is it not? 4 DR. CHRISTOPHER MILROY: Yes. 5 MR. WILLIAM CARTER: And similarly, if a 6 colleague was performing similar work under a coroner's 7 warrant, who was also a pathologist, you would expect 8 them to discharge the same professional responsibilities, 9 would you not, -- 10 DR. CHRISTOPHER MILROY: Absolutely. 11 MR. WILLIAM CARTER: -- to the best of 12 their abilities? 13 DR. CHRISTOPHER MILROY: Absolutely. 14 MR. WILLIAM CARTER: And as I understand 15 the criticisms that we've seen of Dr. Smith, without 16 trying to characterize them, they seem to be peculiar to 17 his mote of expression in court and in -- in opinion 18 writing; is that fair? 19 DR. CHRISTOPHER MILROY: I have no 20 evidence that it was anything other than that. 21 MR. WILLIAM CARTER: Yeah. And you would 22 expect those professional pathologist who were 23 discharging their responsibilities to the coroner to meet 24 their own professional standards notwithstanding that Dr. 25 Smith might be the director of their unit?

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1 DR. CHRISTOPHER MILROY: I agree. 2 MR. WILLIAM CARTER: And so whatever 3 contact they might have had with Dr. Smith would be in 4 the context of a higher responsibility to their 5 professionalism? 6 DR. CHRISTOPHER MILROY: Absolutely. 7 MR. WILLIAM CARTER: Right. So would you 8 agree with that, Dr. Crane? 9 DR. JACK CRANE: Well, I might just take 10 issue with one (1) point. I think it was more to me than 11 just the opinions that were being proffered by -- by Dr. 12 Smith. It seemed to me, certainly from some of the 13 cases, that Dr. Smith made very significant errors, not 14 just in his opinions, but actually in, what I would 15 regard as quite basic forensic pathology; some of which, 16 I think, had the very far reaching implications. 17 But all I can say is only -- the only 18 cases that I saw were those cases of -- of -- which Dr. 19 Smith had either done himself or cases that had been 20 referred to him that had been done by others from outside 21 the Sick Children's Hospital. 22 MR. WILLIAM CARTER: Well, you make a 23 good point, and I -- I didn't mean to overlook that 24 aspect of the criticisms. 25 Insofar as the weaknesses detected in the

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1 work of Dr. Smith relate to what you might call 2 fundamental knowledge of the field, is that fair? 3 DR. JACK CRANE: I think that there -- 4 there were serious deficiencies in his knowledge of 5 forensic pathology, yes. 6 MR. WILLIAM CARTER: Okay, I'm just 7 trying to describe what it is I'm hearing you say. Is it 8 fair to call it fundamental knowledge of the field? Some 9 of the nuts and bolts, if you like, of the -- of the 10 area? 11 DR. JACK CRANE: Yeah, I mean, what I'm 12 saying is that there was significant and important 13 defects in his knowledge of forensic pathology. 14 MR. WILLIAM CARTER: Okay. And to the 15 extent that he worked with colleagues who were better 16 informed or held different views, you would expect that 17 their views would prevail insofar as they had a direct 18 responsibility to report to the coroner's office, if they 19 were in disagreement, would they not? 20 DR. JACK CRANE: Yeah, I mean, quite 21 frankly, I can't comment on his -- on his colleagues 22 because we haven't seen -- 23 MR. WILLIAM CARTER: Okay. 24 DR. JACK CRANE: -- any of their work. 25 MR. WILLIAM CARTER: Okay. Well, we're

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1 being asked, I think, to be concerned about the quality 2 of the work from the unit as a matter of inference, if 3 you like, from the work of one (1) particular 4 pathologist. And I -- I think that -- I noticed some 5 discomfort, Dr. Crane, when you were asked to address the 6 proposition put to you by Mr. Lockyer saying that it 7 really wasn't the realm of the pathologist. I think we 8 recognize it's the realm of this Commissioner to 9 determine whether it would be beneficial in restoring or 10 enhancing the confidence of the public in our current 11 system, whether a review of this type or of a different 12 scope should be undertaken. 13 I take it you would agree with that? 14 DR. JACK CRANE: Yes, I would. 15 MR. WILLIAM CARTER: Dr. Butt, is there 16 any comment that you prefer to make in respect of this 17 matter? 18 DR. JOHN BUTT: Well, I think that in the 19 broad context the perception of correcting the issue 20 becomes the most important issue and that includes 21 confidence. 22 MR. WILLIAM CARTER: Yes. 23 DR. JOHN BUTT: There are a number of 24 other issues obviously that have to do with education of 25 pathologists that have been alluded to by -- particularly

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1 by Professor Crane in terms of shortcomings which is an 2 issue, obviously, that the Commission would probably look 3 into in the context of the Province of Ontario. 4 But, I agree with what has been said, 5 basically by Mr. Lockyer. 6 I think that there is a perception that 7 needs to be adjusted and I'll leave it at that. 8 MR. WILLIAM CARTER: And I take it that 9 the adjustment would come, in your mind, through a -- a 10 systematic review of the work of the Forensic Pathology 11 System in this jurisdiction. 12 DR. JOHN BUTT: Well, particularly as it 13 relates to pediatrics. I mean, and that was part of the 14 question, whether this could be on a provincial-wide 15 basis, and it was narrowed to the point, to make it 16 perhaps a little more practical in looking at cases where 17 there'd been convictions. And I agree with that. 18 MR. WILLIAM CARTER: That, I take it, 19 would be the starting point because the area of public 20 confidence turns on that question, doesn't it? 21 DR. JOHN BUTT: Yes. 22 MR. WILLIAM CARTER: But in fact, the 23 scope of the problem is relatively small when we look at 24 the percentage of infant deaths that occur, or the volume 25 of infant deaths that occur in this jurisdiction.

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1 As I understand it, and I think Professor 2 Milroy indicated that it was something less than 5 3 percent of cases that were criminally suspicious in the 4 infant realm; is that your experience too? 5 DR. JOHN BUTT: Well, I -- are we talking 6 here about Ontario, 5 percent or -- Great Britain? I 7 wouldn't want -- 8 MR. WILLIAM CARTER: Well -- 9 DR. CHRISTOPHER MILROY: Perhaps I should 10 explain that the -- the -- the -- in the Kennedy Report, 11 what they were pointing out was, that of all the deaths 12 that take place in infancy, only about 5 percent of them 13 will be criminally -- are expected to be criminally 14 suspicious because the vast majority will be straight 15 forward crib deaths, where there is no suspicion. That's 16 where that figure comes from. 17 MR. WILLIAM CARTER: There'll be natural 18 or accidental. 19 DR. CHRISTOPHER MILROY: There'll be 20 natural or they'll be accidents -- obvious accidents. 21 MR. WILLIAM CARTER: The evidence that we 22 heard in the first week of this inquiry from the 23 Coroner's Office was that there was a range over a period 24 of time. It wasn't disclosed, but it was some number of 25 years, between I believe 2 and 7 percent per annum in the

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1 infant being under age five (5) group of deaths. 2 Does that accord with your general 3 experience? 4 DR. JOHN BUTT: I would think it was 5 something in that vicinity. I mean, in a general 6 forensic practice, and it's been said that there's 7 probably about 5 percent of the cases that fall into the 8 realm of being truly suspicious. 9 It's obvious because child -- because 10 death is uncommon in children, that the figure is gonna 11 be somewhat higher. 12 MR. WILLIAM CARTER: Well, in this 13 province, we've been told that the -- the numbers of -- 14 of infants, in the total set, is something in the order 15 of 250 per annum, I think, if I'm not mistaken. So 16 that's in a population of an 11 or 12 million. 17 So if we assume that the number of 18 criminally suspicious deaths is something in the order of 19 5 percent per annum, we're looking at possibly ten (10) 20 cases per year. 21 Does that seem reasonable? 22 DR. JOHN BUTT: Well, I would say between 23 ten (10) and twenty (20). 24 MR. WILLIAM CARTER: Okay. And we don't 25 know how many convictions there are in that group. I

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1 don't think we've been given that information from the 2 Coroner's Office, cause I guess it's not really their 3 realm. They're more interested in the cause of death, 4 than the criminal implications of the death. 5 Is that fair? They wouldn't keep that 6 kind of -- 7 DR. JOHN BUTT: Though statistics -- I 8 doubt that they would keep those statistics. 9 DR. WILLIAM CARTER: Okay. So, just to 10 get an idea of the scope of the question, we're looking 11 at in a province the size of Ontario, ten (10) or twenty 12 (20) cases per annum, is that fair, which might be 13 considered criminally suspicious? Those of course, would 14 not all lead to the laying of criminal charges. 15 That would be your expectation, right? 16 DR. JOHN BUTT: I would think so, yes. 17 MR. WILLIAM CARTER: And in some cases, 18 prosecutions wouldn't proceed. And in other cases, there 19 might be pleas of guilty. Any number of outcomes are 20 possible. 21 DR. JOHN BUTT: Yes. 22 MR. WILLIAM CARTER: Yeah. So the number 23 of -- of persons who may have been convicted as a result 24 of the evidence of -- of forensic or pediatric 25 pathologists is something less than ten (10) or twenty

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1 (20) per year, just to talk about the outside maximum. 2 DR. JOHN BUTT: Yes. 3 MR. WILLIAM CARTER: Right. And of 4 course, one (1) is too many, we acknowledge that. Right? 5 DR. JOHN BUTT: Yes. 6 MR. WILLIAM CARTER: Okay, thank you very 7 much. 8 COMMISSIONER STEPHEN GOUDGE: Okay, it's 9 a -- 10 to 3:00. It's a little early, but I suggest Mr. 10 Hauraney to give you time to move up, we'll take a 11 morning -- an afternoon break now. Come back, let's say 12 at 10 past 3:00 and go for a little over an hour. 13 Okay? So we'll rise now until ten (10) 14 past 3:00. 15 16 --- Upon recessing at 2:50 p.m. 17 --- Upon resuming at 3:11 p.m. 18 19 MR. REGISTRAR: All Rise. Please be 20 seated. 21 COMMISSIONER STEPHEN GOUDGE: Mr. 22 Hauraney...? 23 24 CROSS-EXAMINATION BY MR. JIM HAURANEY: 25 MR. JIM HAURANEY: Mr. Commissioner,

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1 thank you very much. Esteemed doctors, thank you for 2 attending this important gathering. My name is Jim 3 Hauraney. I've -- me and my colleagues act on behalf of 4 family members of Jenna, Nicholas and Athena. When -- I 5 feel like a ship in a calm sea having to listen to Mr. 6 Sandler and then to Mr. Lockyer. 7 I just don't know whether or not I'm going 8 to have enough wind to blow myself around in this Inquiry 9 and to make a sufficient amount of points that we believe 10 need to be made with respect to the systemic problems 11 that we are facing, Mr. Commissioner. 12 Mr. Commissioner, I'm probably going to be 13 reviewing five (5) areas in -- regarding to the systemic 14 issues, that is, communications, note-taking, including 15 police notes, and child protection services. For the 16 benefit of the panel, in Ontario, protection services are 17 generally called Children's Aid Society, and usually 18 reduced to CAS, so if I tend to use that word, you'll 19 know that I'm referring to child protection services. 20 I'm going to deal with the role of 21 pathologists in the criminal and child protection 22 proceedings, the mechanisms for resolving complaints with 23 reference, more particularly, to the Nicholas case -- and 24 Mr. Lockyer has gone over that a little bit -- expert 25 evidence to training and certification of -- of experts,

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1 and, finally, bias on the part of the pathologist or in 2 my words -- I may use the term "social profiling." 3 First of all, I'd like to commence -- Mr. 4 Commissioner, I'm not so sure it's been actually stated, 5 but I want to -- to clarify issues. And Dr. Milroy, is 6 there -- was there anything in your dealing with Jenna 7 and Sharon's case that would satisfy you that Dr. Smith 8 was, in fact, a forensic pathologist? 9 DR. CHRISTOPHER MILROY: I would not 10 regard -- 11 MR. JIM HAURANEY: Let's put it, an 12 accredited forensic pathologist? 13 DR. CHRISTOPHER MILROY: No. Well, 14 there's no -- I'm -- I'm not aware that Dr. Smith had any 15 accreditation or specific training in forensic pathology. 16 MR. JIM HAURANEY: And it would, 17 therefore, follow that he would not have any specific 18 training as a pediatric forensic pathologist. 19 Is that correct? 20 DR. CHRISTOPHER MILROY: That's correct. 21 MR. JIM HAURANEY: Dr. Crane, in your 22 review of the cases, would you agree with Dr. Milroy? 23 DR. JACK CRANE: Yes, I would. 24 MR. JIM HAURANEY: And, Dr. Butt...? 25 DR. JOHN BUTT: I would agree.

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1 MR. JIM HAURANEY: And, Dr. Milroy, it 2 becomes significant, I submit to you, when you're 3 reviewing the Jenna case and the Sharon case that 4 forensic pathology would have been an important factor? 5 DR. CHRISTOPHER MILROY: Being a forensic 6 pathologist was essential to examine those cases. 7 MR. JIM HAURANEY: Okay, thank you. Mr. 8 Registrar, could we -- don't turn, and I'll come back to 9 that later in my cross-examination tomorrow. I'll 10 introduce PFP144684, Volume 2, Tab 20, I believe. Dr. 11 Milroy. Volume 2. 12 DR. CHRISTOPHER MILROY: It should be 13 volume 1, shouldn't it? 14 MR. JIM HAURANEY: Volume 1? 15 DR. CHRISTOPHER MILROY: It was last 16 time, anyway. 17 MR. JIM HAURANEY: Mr. Registrar, could 18 we go to paragraph 37, I believe it's page 15. Thank 19 you. 20 Dr. Milroy, I'm not sure how it is in the 21 United Kingdom, but when a cor -- a coroner's warrant is 22 prepared, can you advise as to what's written on that 23 warrant? 24 DR. CHRISTOPHER MILROY: Yes. They don't 25 have warrants in England.

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1 MR. JIM HAURANEY: All right. 2 DR. CHRISTOPHER MILROY: It -- it's 3 actually -- it -- it actually creates a systemic issue 4 back in the -- England, actually. Wha -- when we meet, 5 the coroner actually, traditionally, in England -- I -- I 6 actually don't know about Northern Ireland, but England - 7 - we have oral instructions; usually a phone call made 8 for us to go to a mortuary. 9 The -- the police prepare a report to the 10 coroner, but there's no formal warrant issued by the 11 coroner to the pathologist,. So everything I'm told 12 about the case is -- well, is typically oral; 13 occasionally, if there's enough of a delay, they've got 14 something written -- written down. 15 MR. JIM HAURANEY: How does the body then 16 become the -- seized by the coroner? 17 DR. CHRISTOPHER MILROY: He just says, 18 It's mine, as far as I can work out. He just -- they say 19 that the line of authority is coroner, Queen, God -- 20 MR. JIM HAURANEY: I see. 21 DR. CHRISTOPHER MILROY: -- so that's 22 the -- 23 MR. JIM HAURANEY: All right, I won't get 24 into that. 25 DR. CHRISTOPHER MILROY: Yeah. No, it's

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1 a -- it's a -- 2 COMMISSIONER STEPHEN GOUDGE: Very wise, 3 Mr. Hauraney. 4 5 CONTINUED BY MR. JIM HAURANEY: 6 MR. JIM HAURANEY: But here in Ontario, 7 as you know, we have a coroners warrant. 8 DR. CHRISTOPHER MILROY: Yes, I do know 9 that you have a formal warrant. 10 MR. JIM HAURANEY: And if you look at 11 paragraph 37 on the -- Jenna died in the City of 12 Peterborough, which some distance away from Toronto, and 13 the coroner at that time was Dr. Thompson. And under the 14 auspices of the Coroners Act, he issued a warrant for a 15 post-mortem of Jenna. And under the case history he 16 wrote "DOA" -- which I presume, dead on arrival -- 17 DR. CHRISTOPHER MILROY: Dead on -- 18 that's what I would understand; assume it to be dead on 19 arrival. 20 MR. JIM HAURANEY: -- at Civic Hospital 21 Peterborough; history from teenage babysitter: 22 "Now, Jenna had been unwell, the 23 vomited, then became lifeless; 24 dysfunctional family, CAS involvement, 25 deceased staying with mother, access

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1 with company to separated father, 2 history of brain cyst and admission 3 several times..." 4 Or I -- I believe that's what it means, 5 several -- 6 DR. CHRISTOPHER MILROY: Several days, I 7 think that would mean; for several days. 8 MR. JIM HAURANEY: I'm not sure what the 9 X was there for. 10 "...for investigation in 1995 to 11 Children's Hospital. Evidence of 12 multiple bruises with abrasions and 13 marks of violence on the face, 14 forehead, and trunk, and limbs, feet, 15 and between the toes, blood noted in 16 the NG tube." 17 I take it that she was being intubated, in 18 other words. 19 DR. CHRISTOPHER MILROY: Not quite; 20 that's "native gastric tube." 21 MR. JIM HAURANEY: And that would have 22 been put on at the time she arrived at the hospital or 23 while -- 24 DR. CHRISTOPHER MILROY: Yeah, it's part 25 of -- part of the resuscitation. You intubate and you'd

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1 also pass a tube into the stomach and they've -- 2 MR. JIM HAURANEY: Would have been -- 3 DR. CHRISTOPHER MILROY: -- drawn blood 4 out. 5 MR. JIM HAURANEY: Would that would have 6 been inserted by ambulance attendants? 7 DR. CHRISTOPHER MILROY: It could be, or 8 it's typically done in the -- well, certainly in the UK, 9 the -- whilst the ambulance these days, the -- the 10 paramedics may intubate, and there's a gastric tubes 11 typically put in -- in resuscitation in hospital. 12 MR. JIM HAURANEY: And then it goes on to 13 say: 14 "No clear details of causes of these." 15 And then: 16 "The [question mark] Shaken Baby 17 Syndrome." 18 DR. CHRISTOPHER MILROY: Yes. 19 MR. JIM HAURANEY: Can you tell us, from 20 that, how the coroner, Dr. Thompson, would suspect a 21 Shaken Baby Syndrome from those injuries? 22 DR. CHRISTOPHER MILROY: Well, I would 23 suggest that, you know, and was it -- you'd have to ask 24 him, because on the face of that information, I wouldn't 25 be putting Shaken Baby Syndrome down.

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1 But, in one (1) sense, if it's just a 2 warrant to say, This is a case that is causing -- is -- 3 si suspicious, which is all I would be told -- well, we 4 don't -- our coroners are predominantly legal and all the 5 coroners I work for on a routine basis are lawyers. They 6 -- you know, they wouldn't proffer a diagnosis to me; 7 that's what the question mark means, "diagnosis, question 8 mark, Shaken Baby Syndrome." 9 I don't that that's too important, in one 10 (1) sense. More relevantly. I think cou -- wha -- more 11 appropriately might have been put in was, Query abused 12 child, may have been a more generic or, This -- this is a 13 suspicious death. 14 COMMISSIONER STEPHEN GOUDGE: I take it 15 you, as a pathologist, receiving this, if you were a 16 Canadian pathologist, would read the last line as 17 "diagnosis, question mark, is it Shaken Baby Syndrome?" 18 DR. CHRISTOPHER MILROY: Yeah, I'd sort 19 of do a Gaelic shrug and say, Well, we'll see. I mean 20 it's -- you know that's -- that's what the autopsy's for. 21 22 CONTINUED BY MR. JIM HAURANEY: 23 MR. JIM HAURANEY: I also note that other 24 issues on the -- on this warrant, Doctor, is 25 "dysfunctional family, CAS involvement." Are they

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1 important issues that should be initiated at the -- 2 DR. CHRISTOPHER MILROY: Well -- 3 MR. JIM HAURANEY: -- on the warrant? 4 DR. CHRISTOPHER MILROY: -- we would be 5 told that in England, probably. We would certainly be 6 told the equivalent of we have an -- an At Risk Register, 7 child at risk of neglect, abuse, so if the child -- if a 8 child dies and on the At Risk Register, that will almost 9 certainly trigger a forensic investigation. Otherwise, 10 why have a partly -- why have an At Risk Register. 11 But that merely gives you a background as 12 to why there is a level of suspicion. It shouldn't then 13 influence your pathology opinion at all. 14 MR. JIM HAURANEY: Is this one (1) of 15 these issues that the pathologist has to filer out? 16 DR. CHRISTOPHER MILROY: You know about 17 it, then filter it out. 18 MR. JIM HAURANEY: All right. Now 19 another issue on this particular warrant, Dr. Thompson, 20 who was the coroner, at that time was Jenna's family 21 physician about ten (10) months prior to her death. 22 Would it have been prudent for another 23 coroner then to have issued the warrant, other then the - 24 - her family physician? 25 DR. CHRISTOPHER MILROY: Well, I can see

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1 that there's poten -- there's clearly a potential 2 conflict of interest. 3 MR. JIM HAURANEY: All right. 4 DR. CHRISTOPHER MILROY: Because if you 5 are the family doctor of the person, it may well be that 6 the autopsy could disclose questions about your own care 7 and custody of a child. 8 So -- so -- I mean, if you have -- there 9 is -- well, I -- I think there's a clear conflict -- 10 potential conflict of interest, and therefore you should 11 step back from being in -- directly involved in the case. 12 MR. JIM HAURANEY: Well, role, if any, 13 then should the family physician of a child be made 14 apparent to the pathologist? 15 DR. CHRISTOPHER MILROY: Well what -- the 16 role of the family physician will be that we will go and 17 obtain the records of the family physician at some stage 18 in the investigation. Either -- often before the 19 examination, the police will go along and seize it, and 20 hand it to you because you -- it's all -- it's clearly 21 relevant. 22 It may well be that, you know, if a child 23 is being -- for example, one can -- can imagine a case 24 where a child is being brought before the family 25 physician on a number of occasions, and he may have mis-

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1 diagnosed what was inflicted abuse being some medical 2 condition, or he may have accepted a -- an accidental 3 explanation -- or explanations of accident. And he could 4 clearly come under criticism if he's also the coroner. 5 So I want that information, and, you know, 6 as I've just said, I can -- I can see a clear conflict of 7 interest in -- 8 MR. JIM HAURANEY: Sure. 9 DR. CHRISTOPHER MILROY: -- a coroner 10 issuing a warrant. 11 MR. JIM HAURANEY: It's something you 12 should know, but it's something you can consider and 13 filter out -- 14 DR. CHRISTOPHER MILROY: Yeah -- 15 MR. JIM HAURANEY: -- you've seized it. 16 DR. CHRISTOPHER MILROY: Yeah. I mean, 17 the -- the fact that the child -- you -- I mean, you may 18 be asked in these cases, Well -- and I've seen it -- a 19 family doctor visited. He accepted an innocent 20 explanation, if you like, or a non -- non-suspicious 21 explanation, but now what is your opinion of that? And I 22 said, Well, you know, for example, the mum of the child 23 say the child rolled off the bed, but it's only four (4) 24 weeks old. A child couldn't roll off the bed at four (4) 25 weeks.

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1 MR. JIM HAURANEY: Mm-hm. 2 DR. CHRISTOPHER MILROY: I don't accept 3 that explanation, so that -- that could then cause some 4 questions over the doctor. 5 MR. JIM HAURANEY: All right. Now, in 6 dealing with coroner's warrants, because that's the fir - 7 - that's the initial procedure in -- in these types of 8 cases, sh -- what documentation, if any, of hospital 9 records should accompany that, or is that a separate 10 issue where the pathologist would have to request it? 11 DR. CHRISTOPHER MILROY: I would expect 12 that in a child death, assuming that it's not something 13 that is so obvious that it's not required so that, for 14 example, if a child dies in an automobile crash on a 15 highway where the previous medical records are most 16 unlikely to be of any relevance -- if you've got a case 17 like this, I would expect the doctors to -- sorry -- the 18 police, when the attend, will hand me the doctor's -- 19 sorry, the hospital records at -- even and including 20 historic records and the family practitioner records. 21 And if they haven't brought them at the 22 time, I will ask them to go and obtain them as soon as 23 possible. 24 MR. JIM HAURANEY: Should it not be then 25 a practice, that when the coroner's warrants are issued

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1 that they -- because this child, as I understand it, was 2 -- I don't believe it was dead on arrival, unless it was 3 shortly thereafter -- was treated in hospitals. 4 And it would be important that the 5 pathologist had the notes, hospital records -- 6 DR. CHRISTOPHER MILROY: It's important 7 to know what they have done in the accident and in the 8 emergency department, as they're called in England. 9 MR. JIM HAURANEY: Yes, same here. 10 DR. CHRISTOPHER MILROY: The emergency 11 department. But because, you know, if people have been 12 sticking tubes into children -- doctors have a habit, for 13 example, of putting chest drains in, and they sometimes 14 can look like stab wounds. 15 So if they -- if they put them in and take 16 them out, you can be very confused by a hole in the side 17 of the chest. And I have seen things misinterpreted as a 18 consequence. 19 So you -- you need to know -- you need to 20 know what has happened to the child in the resuscitation 21 processes, including what's happened in hospital, which 22 is why, you know, we are very insistent that we get the 23 emergency records and the historic records as -- 24 preferable before we do the autopsy. 25 MR. JIM HAURANEY: I was going to kind of

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1 suggest that. I take it, you should have all that before 2 you, before you actually start the autopsy? 3 DR. CHRISTOPHER MILROY: Preferably. 4 MR. JIM HAURANEY: You can do your 5 external findings, but before you start the autopsy, you 6 should have those with you, I would assume? 7 DR. CHRISTOPHER MILROY: Yeah, because, I 8 mean, if -- you know, in other cases the surgeons go to 9 town and do -- open up the chest and, you know, you're 10 trying to work out -- I mean, a classic one for us -- for 11 surgeons in adult stabbings is that they will put their 12 surgical incision straight through the stab wound, -- 13 MR. JIM HAURANEY: Mm-hm. 14 DR. CHRISTOPHER MILROY: -- so that we no 15 longer have the stab wound. And unless you've got them - 16 - the hospital records to say, Oh, and there was a stab 17 wound and we put the thoracotomy straight through it, you 18 wouldn't -- you wouldn't know that. 19 MR. JIM HAURANEY: Mr. Registrar, can we 20 go to page 25, please? I believe it was paragraph 73, 21 wherever that may be. All right. As you're aware, 22 fortunately or unfortunately, I guess, I was Jenna's 23 mother's solicitor at the time that this matter came on. 24 I want to -- and this has to do with note-taking. 25 I'll see -- where am I here. Well, I

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1 understand that Dr. Smith had indicated at the 2 preliminary hearing here that he did not have the 3 Peterborough Civic Hospital records, and he did not note 4 this on his post-mortem report that even had the 5 Peterborough records. I see. Well, it may not be there. 6 He says: 7 "I think -- I think saw -- now, I don't 8 know, I have photocopy. No, I don't. 9 At one point, I think -- no, I just 10 have my x-ray reports and such. Oh, 11 wait. I take that back. Yeah, I do 12 have. I do have a document from 13 Peterborough Civic Hospital, yeah. And 14 this is -- this is a final 15 resuscitation-type of record, yeah. 16 This is the final -- the final hospital 17 visit, whether it's the entire medical 18 record, I don't know." 19 I take it, he should have requested all of 20 the records in order to make an appropriate finding, is 21 that not true? 22 DR. CHRISTOPHER MILROY: That's correct. 23 MR. JIM HAURANEY: All right. Now, 24 earlier on, Mr. Sandler asked you and we were questioning 25 about the hair that was found. And there was no record

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1 of Dr. Smith, on his autopsy report and, in fact, 2 there's no record at all that we were able to determine, 3 other than what was stated on hospital records, that 4 there was in fact a dark curly hair on Jenna's vagina, 5 correct? 6 DR. CHRISTOPHER MILROY: That's correct. 7 MR. JIM HAURANEY: I know you have 8 trouble with that because, as you know, quite a few years 9 later now, we have found that Dr. Smith has had this hair 10 in an envelope in his desk? 11 DR. CHRISTOPHER MILROY: Yeah. 12 MR. JIM HAURANEY: And you have made 13 comments about this -- 14 DR. CHRISTOPHER MILROY: Yes. 15 MR. JIM HAURANEY: -- correct? And it 16 comes to us then about discussing the medal -- the matter 17 of record-taking. 18 DR. CHRISTOPHER MILROY: Yes. 19 MR. JIM HAURANEY: And, Dr. Crane, I 20 believe you discussed this at some length about -- you 21 take your own notes. You don't rely on the officers 22 taking their notes -- your notes of your conversations. 23 What I -- I'm interested in is that it should be common 24 practice, I take it, that doctors or -- or -- I'm sorry - 25 - pathologists should take very good notes during the

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1 course of the autopsy. 2 Is that correct? 3 DR. JACK CRANE: Yes, it is expected that 4 you would make an contemporaneous note of your findings 5 at -- at autopsy. 6 MR. JIM HAURANEY: Now, during the 7 preliminary hearing, Dr. Smith has indicated -- and if I 8 can refer to page 53, Mr. Registrar? Now, page -- line 9 80, or paragraph 80, we note with respect to this note- 10 taking, Dr. Smith testified as follows: 11 "Q: You looked at some notes there; are 12 they your initial notes? 13 A: No, these are, no. 14 Q: Oh, I see. 15 A: No, this is my report. 16 Q: All right." 17 "You add the identification?" 18 "Q: I just didn't see where you had 19 Scott Kirkland." 20 "Oh, I'm sorry, yeah, it's section 2 of 21 the first page, Scott Kirkland, yeah." 22 Now, as you read that, he's testifying at 23 a preliminary hearing, and he's indicated that he does 24 not have the notes. Now, as we look later on, we find 25 that in fact, - years later -- in fact, I think about two

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1 (2) weeks before this Commission, we received eight (8) 2 pages of his notes. 3 Where -- what my question would be: If 4 the pathologist should be mandated to keep notes, where 5 should the notes be kept, and, secondly, for how long 6 should they be kept? Dr. Milroy, you -- 7 DR. CHRISTOPHER MILROY: Well, I can -- I 8 can tell you what -- what is done in my practice now. Or 9 -- and for that matter has been over the years. I -- the 10 -- your contemporaneous notes, drafts of post-mortem 11 examinations, -- so if we make a series of typewritten 12 drafts, which we correct, they're kept as well -- are 13 kept in a file. 14 And they are kept -- well, the -- the 15 Forensic Science Service puts a time on when the cases 16 can be removed, and it's a minimum of thirty (30) years. 17 My own view is that for homicides they should -- 18 MR. JIM HAURANEY: Equivalent to a life 19 sentence. 20 DR. CHRISTOPHER MILROY: They should be 21 kept for -- forever, effectively, then go into an 22 archival record because they have -- they have historic 23 value as well as, if you like, medicolegal value. 24 As far as the law is concerned, we believe 25 -- our understanding is it sets -- the -- the -- all

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1 material relevant to a case should be kept until the 2 completion of sentence. 3 And that means that in -- if -- in the 4 case of people who are sentenced to -- to life 5 imprisonment, then it should be kept until that person 6 dies. 7 MR. JIM HAURANEY: Mm-hm. 8 DR. CHRISTOPHER MILROY: So we're keeping 9 records for a very long time. Effectively, we keep all 10 of our records permanently. And for the Forensic Science 11 Service now, there is a minimum of thirty (30) years. 12 MR. JIM HAURANEY: When you say you keep 13 them, do you keep them personally, or are they kept -- 14 DR. CHRISTOPHER MILROY: No, they're kept 15 -- the University of Sheffield, where I worked, keep them 16 -- they archive them, and the Forensic Science Service 17 archived them. 18 That's because I work in a department; 19 they're not my records. They're owned by my employers. 20 I've worked for the -- I work for them. There are 21 individual pathologists who will have responsibility for 22 keeping their own records, but as far as I'm concerned, 23 the records are my employer's, and my employers have the 24 responsibility to store them. 25 And we've had cases where -- certainly, in

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1 the last year or two (2) I've had cases from the 1960s 2 we've had to pull out and go through. One (1) of the 3 cases that I -- I have just given -- I -- I was involved 4 in a trial where there was a conviction of the case 5 involving a notorious miscarriage of justice, in fact, as 6 it happens. 7 And then a conviction of -- of the real 8 perpetrator, thirty-two (32) years after -- 9 MR. JIM HAURANEY: Mm-hm. 10 DR. CHRISTOPHER MILROY: -- and we have 11 the original rec -- we had, and still have, the original 12 records of the autopsy conducted in the 1970s. 13 MR. JIM HAURANEY: That's a very similar 14 situation that we had in the Jenna Case where as -- 15 DR. CHRISTOPHER MILROY: Yes. 16 MR. JIM HAURANEY: -- her mother was 17 completely absolved of any wrongdoing, correct? 18 DR. CHRISTOPHER MILROY: Yes. 19 MR. JIM HAURANEY: Mr. Registrar, could I 20 go to PFP14453? 21 COMMISSIONER STEPHEN GOUDGE: When you 22 speak of records, Dr. Milroy, do you include in that the 23 slides and so on? 24 DR. CHRISTOPHER MILROY: Yes. Well, yes. 25 Blocks and slides should be kept --

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1 COMMISSIONER STEPHEN GOUDGE: Same way? 2 DR. CHRISTOPHER MILROY: -- in the same 3 way. With -- there is -- there's a slight caveat to 4 that, in that because of our change in tissue regulation, 5 that -- that some of the material was actually disposed 6 of at the request of relatives. 7 I personally think that there's a -- 8 there's a question of -- over convicted people, but the - 9 - the general rule is that you should keep blocks and 10 slides and other material. 11 I mean, one (1) of the ways we were able 12 to -- if you like, identify the miscarriage of justice, 13 and to convict the -- we'd assist them. Convict the 14 appropriate person in the case I'm talking about was they 15 had retained material that co -- that allowed DNA 16 analysis to be conducted. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. CHRISTOPHER MILROY: Thir -- twenty 19 (20) -- sorry, thirty-five (35) years after the original 20 crime -- twenty-five (25) years, I'm sorry, twenty-five 21 (25) years after the original crime, so it's vitally 22 important that you keep this material. 23 24 CONTINUED BY MR. JIM HAURANEY: 25 MR. JIM HAURANEY: I take it note-keeping

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1 is not a resource issue, do you agree with that? 2 DR. CHRISTOPHER MILROY: I don't think 3 note-taking or -- is a -- and there isn't much of a 4 resource issue in keeping the files, either. There's a 5 bit of a resource issue in space, but it's not expensive 6 to keep. 7 MR. JIM HAURANEY: Dr. Butt, can you 8 advise us as to how you keep your notes? 9 DR. JOHN BUTT: Well, I'm not in a 10 government office anymore and -- but it's a very good 11 point. And in connection with hospitals keeping these 12 things, I have a little concern about that, but you 13 mentioned, I think, on Monday or Tuesday. By and large, 14 these things should be dealt with in the regulations 15 under the applicable law. 16 I don't think there's any other way of 17 dealing with them. And I th -- I -- I mean we're looking 18 to the future here. I could give you a whole bunch of 19 answers -- 20 MR. JIM HAURANEY: Mm-hm. 21 DR. JOHN BUTT: -- about things that are 22 kept informally. And I wrote a paper about this, in 23 fact, in connection with the latterly held inquiry into 24 the death of -- David Milgaard where they were wondering 25 what went wrong -- wrong with the system and some

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1 material that was very important had not been properly 2 accounted for, although it didn't disappear. But I think 3 one has to deal with it through regulations. 4 In this particular system in Ontario, you 5 have to remember that, in terms of record keeping, 6 there's one (1) -- there's -- there's two (2) people, at 7 least, notwithstanding the police; there's the coroner's 8 records and then there's the pathologist's records 9 because a significant number of these cases, as you've 10 implied, are done outside the coroner's office. 11 MR. JIM HAURANEY: Yeah. 12 DR. JOHN BUTT: So that puts the records 13 into the hospital situation. And I have significant 14 concerns about that because the records don't belong to 15 the hospital, and we've seen a situation here that we 16 discussed earlier, as I say, where there was hospital 17 letterhead on part of a record that was eluding to a 18 criminal case; a criminally based case. 19 So I think that the regulations have to 20 tighten this up and the regulations would be made under 21 the Coroner's Act and they would be appropriate to the 22 storage of records by the pathologist. 23 The long-term storage -- I'm no expert on 24 it, but there are lots of government experts that deal 25 with archives and the place -- the proper places to store

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1 those things, et cetera. 2 The less formal it is, so that you wind up 3 with a box in a hospital ten (10) or fifteen (15) years 4 later, the more chance that you have of somebody altering 5 the evidence wit -- unwittingly. 6 MR. JIM HAURANEY: Sure. Could I go to 7 page 84, please, Mr. Registrar? And at paragraph 188; 8 this is the Sharon case and this is Dr. Smith's 9 testimony. I think it's Volume 1, Tab 6. 10 DR. CHRISTOPHER MILROY: I see it on the 11 screen here. 12 MR. JIM HAURANEY: Yes. The lawyer for 13 Sharon's mother indicated, question: 14 "Are you saying today that while you 15 were doing the autopsy examination that 16 you didn't make a tape-recording as you 17 were proceeding?" 18 "A: I may not have; I can't recall. 19 I often type directly into my 20 computer." 21 "Well, I suggest, isn't it normal 22 procedure that when you're conducting 23 an autopsy that you dictate into a 24 tape-recorder of some kind as you're 25 proceeding along through the autopsy?"

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1 "A: It may or may not. More and more 2 I've been typing directly into my 3 computer, as opposed to dictating. 4 Q: And you've got the computer in the 5 autopsy room. 6 A: That's right." 7 Can we go to the next page? 8 "So I take it, as you are going through 9 the process, I take it you'd have to 10 stop, and after making certain 11 observations, go to the computer, 12 correct?" 13 "Yeah, that's how I do it. Yeah, but 14 I'm in trouble here; I don't know if I 15 typed it or dictated it." 16 Now, do you have a comment with respect to 17 that, Dr. Milroy? 18 DR. CHRISTOPHER MILROY: Well, I -- I 19 certainly don't have my laptop in the post-mortem room. 20 I accept that there are different ways of keeping the 21 record. What you have to do if you -- if you make a 22 record, is make sure that you can prove its existence and 23 continuity. 24 The modern -- if you are going to use, for 25 example, the modern digital Dictaphones, you can actually

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1 keep that as an electronic record so that someone could 2 go back and check it. And -- and if you are going to 3 install something on a computer, then you -- you would 4 need to have in place a system where you can't alter the 5 record -- 6 MR. JIM HAURANEY: Correct. 7 DR. CHRISTOPHER MILROY: -- because now, 8 in fact, as I understand it from the computer experts, 9 you can usually check whether someone has changed a 10 record. It's very difficult to -- to not do that if you 11 have sufficient skill in questioning a computer. 12 But the -- but, that aside, the principle 13 is is that you've got to be able to prove your continuity 14 of your -- of your contemporaneous record. 15 MR. JIM HAURANEY: Yeah. I know, Dr. 16 Crane, you indicated that you keep your notes in your own 17 handwriting, and I suspect you're like me because we have 18 difficulty typing and knowing how to use a computer. 19 DR. JACK CRANE: Well, it -- 20 MR. JIM HAURANEY: Which is not a bad way 21 of doing things. 22 DR. JACK CRANE: That's part of the 23 reason. In fact, I have somebody writing for me now, -- 24 MR. JIM HAURANEY: Oh, okay. 25 DR. JACK CRANE: -- my secretary or one

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1 (1) of the -- the mortuary staff or one (1) of my 2 juniors. 3 MR. JIM HAURANEY: But you sign it to 4 make sure that you understand they're your notes? 5 DR. JACK CRANE: But they're notes. And 6 that's my contemporaneous record that I keep permanently. 7 From those notes, then, I make my report, which then 8 copies will go to the coroner and other interested 9 parties. But if someone wants to look at -- and 10 frequently they do, they ask to see what notes were made 11 during the autopsy. 12 Then they're produced and -- 13 COMMISSIONER STEPHEN GOUDGE: That is 14 your handwriting? 15 DR. JACK CRANE: Well, it's either my 16 handwriting or whoever's writing for me. 17 COMMISSIONER STEPHEN GOUDGE: And the 18 person who is writing for you is hearing you dictate -- 19 DR. JACK CRANE: I just do it as I'm 20 going along, and I find that easier because my hands are 21 covered in blood and so forth. I just -- I just find it 22 easier that way. 23 DR. CHRISTOPHER MILROY: Sir, I've 24 sometimes done that, as well. 25 MR. JIM HAURANEY: Sure.

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1 DR. CHRISTOPHER MILROY: I mean, there is 2 -- there is a health and safety issue about you do have 3 to stop, change gloves, make your note, go back, so we 4 sometimes do that. But they are still -- anyone who 5 writes anything down, they are -- they are to write it 6 down as their told, verbatim. 7 8 CONTINUED BY MR. JIM HAURANEY: 9 MR. JIM HAURANEY: Dr. Milroy, we know in 10 Sharon's case, as well, that -- we understand that -- 11 that Mr. Blenkinsop was a -- an assistant of Dr. Smith's. 12 And I believe I've heard testimony earlier in the week 13 that the assistant's job, as I take it, would be to 14 remove the scalp only or the cutting into the -- 15 DR. CHRISTOPHER MILROY: Well, -- 16 MR. JIM HAURANEY: -- scalp and maybe 17 help in removal of the brain? 18 DR. CHRISTOPHER MILROY: -- that's what 19 we do in the UK. But I understand, from my discussions 20 with pathologists here, that the pathology assistants 21 sometimes do more of the dissection that we -- than -- 22 than we would allow in the UK. I am aware of other 23 jurisdictions we the, sort of, pathology assistants do 24 more of the dissection. 25 If you are going to let assistants do the

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1 dissection, you must -- it must be entirely under your 2 jur -- your -- your direction, and any mistakes that are 3 made are yours, not theirs. So you have to be 4 responsible for everything that ge -- a pathologist -- 5 once the body is placed in the mortuary, it is the 6 pathologist, effectively, is in charge of it. 7 I think he's doing it under the coroner's 8 warrant, but he's in charge of it. He is responsible 9 then for everything that goes on with respect to that 10 body until he has finished his examination. The removal 11 of the clothing, the documentation of it, the direction 12 of what's to be photographed, what exhibits to take, what 13 dissections are to be done, and what findings are to be 14 recorded. 15 Those are all the responsibilities of the 16 pathologist, and they cannot pass that responsibility 17 onto another person. 18 MR. JIM HAURANEY: And can I go to page 19 17 of that document, Mr. Registrar? And paragraph 49 of 20 your overview report. Report of post mortem examination 21 noted that Constable Goodfellow was also present at the 22 autopsy. 23 The report of the post-mortem examination 24 did not indicate that anyone else was present, but based 25 on other documents and on the notes and testimony of

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1 Constable Goodfellow, pathology assistant, Barry 2 Blenkinsop, was present on both days and assistant, Lisa 3 Hogarth, was also present on June 15, '97. 4 Mr. Blenkinsop may have been responsible 5 for doing all of the cuttings during the autopsy because 6 Dr. Smith had his right hand in a cast, at the time. I 7 take it, that there's nothing wrong with that, is there? 8 That the assistant in that instance would 9 be able to do the entire cutting or...? 10 DR. CHRISTOPHER MILROY: Well, it 11 certainly would -- it wouldn't -- it wouldn't happen in 12 my jurisdiction. 13 COMMISSIONER STEPHEN GOUDGE: Even if you 14 had broken your hand? 15 DR. CHRISTOPHER MILROY: If I had broken 16 my hand I would just be off path -- off post-mortem 17 duties, because I couldn't do it. 18 19 CONTINUED BY MR. JIM HAURANEY: 20 MR. JIM HAURANEY: So it's that important 21 that you do the dissecting and removal of organs and -- 22 DR. CHRISTOPHER MILROY: Well in my -- in 23 my system it is, and I suspect that -- I know -- I know 24 what Dr. Crane's views are on this, and I think that he 25 would agree with me.

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1 DR. JACK CRANE: And -- 2 MR. JIM HAURANEY: Yes, sir. 3 DR. JACK CRANE: If this is a suspicious 4 death -- a potential homicide -- under no circumstances 5 should a morgue attendant do any of the dissection. The 6 only thing they would be allowed to do, would be to saw 7 the skull. 8 Because, for instance, if some organ is 9 damaged -- if you do it yourself as a pathologist, you 10 know you've done it. But if you let someone else do it, 11 you don't know, Was there was a laceration of the liver 12 or did the technician make it? 13 Under no circumstances; in fact, even in 14 my sudden routine deaths, I do everything myself. And 15 that way I know what has happened. And the Home Office 16 guidelines that we referred to, require that in a 17 suspicious death, the pathologist does all the 18 evisceration themselves. 19 The only thing that that technician would 20 do would be to saw the skull. 21 DR. CHRISTOPHER MILROY: But I do make 22 the point that I understand there is a difference. Dr. 23 Butt may help on this between pathology assistants. His, 24 as I understand it, are trained to a higher level then we 25 would train our morgue attendant -- the morgue -- morgue

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1 technicians. 2 But, as I've not seen them work, I can't 3 comment further. 4 MR. JIM HAURANEY: Dr. Butt, what's your 5 experience? 6 DR. JOHN BUTT: I'm going to get my licks 7 in here with the British system, because I can tell you I 8 used to go to work in London on a Monday morning and find 9 six (6) or eight (8) bodies that had been totally 10 eviscerated by the morgue keepers. So I'm glad they 11 changed the system. 12 But having said that, that -- that was a 13 kind of a bad experience. And so, I -- I think under the 14 circumstances, with a suspicious death, if I had a -- if 15 I had an injury, I would -- I would do exactly as they 16 said. 17 I mean, I wouldn't do the autopsy, and 18 that's the end of it. And I can't see even touching the 19 clothing without being present at the table. And I don't 20 see any reason for the mortuary assistant or the 21 pathology assistant to do more then assist the 22 pathologist, and not to proceed independently. 23 MR. JIM HAURANEY: All right. 24 COMMISSIONER STEPHEN GOUDGE: It isn't 25 enough if the attendant is being watched every instant by

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1 the pathologist? 2 DR. JOHN BUTT: In some cases I think it 3 -- it is, but those are the more routine cases, and I 4 don't they would include the suspicious deaths. I mean, 5 there are not that many suspicious deaths and, as is 6 indicated here, when you're examining the thing several 7 years later and trying to find out what went on, you 8 don't have the first-hand information by interviewing the 9 individual. Mr. Blenkinsop is dead. 10 11 CONTINUED BY MR. JIM HAURANEY: 12 MR. JIM HAURANEY: All right. And he -- 13 as far as we know, he has made no notes? Far as we know. 14 15 DR. JOHN BUTT: I wouldn't know, but I 16 mean, I know he's dead. 17 MR. JIM HAURANEY: Okay. He's not making 18 notes now. 19 Can I go to page 85, Mr. Registrar, 20 please? This may be old hat, doctors, but during cross- 21 examination Dr. Smith was questioned whether he kept 22 notes of conversations with police officers or other 23 officers -- or other persons. 24 He answered: 25 "I've not made any notes of any

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1 conversations with police officers, or 2 anyone else, no." 3 "Q: No?" 4 "No. The notes that I -- you have 5 notes that I took from the post-mortem 6 examination, but I don't keep notes of 7 conversations with police officers." 8 "Q: Or others involved in the case? 9 "A: Not usually, no. Unless it is 10 something significant, I mean. If -- 11 let me give you an example. If I'm 12 looking for results of a toxicology 13 examination and I phone the Centre of 14 Forensic Sciences to get jug levels, 15 and they give me -- give them to me, I 16 will record those. So that would be a 17 note. But other then that kind of 18 thing, I have no other information. 19 I'm taking no notes during my 20 conversations with the police. The 21 police may have notes of such things, 22 and if they want them, they can take 23 them, but I certainly don't need them." 24 Is that an accurate statement; that a 25 pathologist does not need notes of conversations that --

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1 with the authorities or any other persons giving, say, a 2 history or whatever? 3 DR. CHRISTOPHER MILROY: Well, obviously 4 there are -- there are conversations and there are 5 conversations. And discussing the football results, you 6 wouldn't expect to have those put down, but patently, if 7 he'd been given the history, they should be recorded. 8 And as I've said, at the end, what you say 9 to the police should be clearly -- clearly given and -- 10 and you should be aware. As I say, we're -- we're 11 developing that practice as to whether we sign a 12 document. 13 And I think that that's something I think 14 that we're going to -- to look at. That we give a short 15 statement and that we -- we sign it. And I think that 16 that's probably going to be -- that's good practice. 17 But you -- you've got to do -- you've got 18 to be aware of significant conversations. And -- and we 19 are told that, for example, if you have -- if you had a 20 significant conversation with a police officer 21 subsequently, for example, in the Sharon case, if -- if 22 you weren't told at the start, Oh, a dog was present, but 23 you -- on the phone three (3) days later you were told a 24 dog was present, you would need to make a note. I have 25 subsequently -- you know, I have been informed that a dog

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1 was present at the scene; that patently is relevant. 2 MR. JIM HAURANEY: And you know that Dr. 3 Smith was aware in the Sharon case that he later found 4 out that there was dog present -- 5 DR. CHRISTOPHER MILROY: Yes. 6 MR. JIM HAURANEY: -- before he made up 7 his post-mortem report, correct? 8 DR. CHRISTOPHER MILROY: Yes. 9 MR. JIM HAURANEY: But it doesn't look 10 like he took that in -- he took that into some 11 consideration because he called in an odon -- well, you 12 can pronounce it. 13 DR. CHRISTOPHER MILROY: A clever 14 dentist. 15 MR. JIM HAURANEY: A clever dentist. 16 DR. CHRISTOPHER MILROY: An odontologist. 17 MR. JIM HAURANEY: Odontologist. 18 DR. CHRISTOPHER MILROY: Yeah, there is 19 by implication that -- that, but, you know, in -- in my 20 reports they would be expressly written -- 21 MR. JIM HAURANEY: Thank you. 22 DR. CHRISTOPHER MILROY: -- and recorded. 23 MR. JIM HAURANEY: And he knew at the 24 time that the -- that the dog was later found to be -- 25 had some redness around its throat, and he was aware of

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1 all that before the post-mortem report came out. 2 Is that not correct? 3 DR. CHRISTOPHER MILROY: That's my 4 understanding. 5 MR. JIM HAURANEY: All right. And, 6 again, in the Sharon case, that you were aware of, Dr. 7 Milroy -- at page 18, please, Mr. Registrar. 8 Paragraph 53, Dr. Milroy, it indicates 9 that Dr. Goodfellow -- that Dr. Smith viewed a pair of 10 scissors seized from the ru -- the Sharon residence and 11 certain photographs taken at the Sharon residence before 12 he continued the autopsy on June 15, 1997. 13 And then on June the 15th -- or by June 14 15th, rather, Dr. Smith was aware that there may have 15 been a dog present in the -- Sharon's house. He was not 16 sure which police officer told him about a dog, or 17 whether the information as communicated to him in person 18 or over the phone. 19 So, now we have the two (2) issues that 20 have come up in the Sharon case, right; we have the issue 21 that, first off, the police gave him a pair of scissors; 22 secondly, he was aware of a dog in the home. 23 Now, he was aware of some photographs that 24 was taken place in the home, as well? 25 DR. CHRISTOPHER MILROY: What would

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1 happen in England is if a police officer brought me a 2 pair of scissors, I would -- likelihood, in those 3 situations, whether it would be received in a container 4 because you would want it to be examined forensic sci -- 5 for forensic science. You wouldn't want to contaminate 6 it, but they're usually see through. 7 So I make a note that this is an -- I 8 would -- I would record the exhibit number, because, you 9 -- you would expect to be given an exhibit number by now. 10 I would then a make a note of what I had seen, and I u -- 11 oh, I also put when I've seen it in the container, I have 12 only viewed this through a plastic container; making the 13 point that some of the measurements may be slightly 14 approximate, because I'm holding a ruler up against the 15 container rather than against the weapon. And then -- 16 and the other information would obviously need to be 17 recorded. 18 MR. JIM HAURANEY: And you've testified 19 earlier that there's some cases where you wish to view 20 the scene. Would -- would this be one (1) of those -- 21 those cases? 22 DR. CHRISTOPHER MILROY: Yeah, I would 23 have want -- this was a -- I would have -- I think the 24 likelihood was I would have said, I think I need to come 25 up and see this scene. And then I would go up and make

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1 notes on the scene examination. 2 MR. JIM HAURANEY: Under what 3 circumstances would you normally want to go to a scene; 4 like, under what particular circumstances? 5 DR. CHRISTOPHER MILROY: Well, it depends 6 on the nature of the case, but if there is -- often where 7 there is a body found, especially if it's blunt trauma, I 8 will go and look, because you're looking to see whether 9 there are any objects or weapons at the scene that could 10 account for the injuries. 11 I will often now discuss it with a blood 12 pattern analyst as to the -- what they believe the 13 distribution of blood is and what it means. I -- I'd 14 like to see the position of -- of -- of the body in 15 respect to where it's been found dead. 16 As I say, the blood distribution; these 17 are all things that I'm looking at, especially in the 18 context, either before the examination or if I've done my 19 examination, going to the scene afterwards. 20 MR. JIM HAURANEY: All right. 21 COMMISSIONER STEPHEN GOUDGE: How big is 22 your region, Dr. Milroy. 23 DR. CHRISTOPHER MILROY: Geographically 24 it's a hundred (100) and -- it's about from -- well, from 25 my house it's about -- I can go -- I can drive eighty

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1 (80), ninety (90) miles, that's all. So I appreciate 2 there are geographic considerations in this. That will 3 be the furthest distance. It used to be about a hundred 4 and twenty (120), I would co -- cover, and, potentially, 5 if I was at the top end of a -- an area, down to the 6 bottom, I could have to drive a hundred and fifty (150) 7 miles, but that's not very common. 8 COMMISSIONER STEPHEN GOUDGE: Are there 9 any guidelines about visiting the scene in England? 10 DR. CHRISTOPHER MILROY: There are. 11 They're contained within the Home Office Regulations. 12 COMMISSIONER STEPHEN GOUDGE: What is in 13 those Regulations you do? 14 DR. CHRISTOPHER MILROY: Yeah. I mean, 15 specifically, if we're requested to go by a -- by the 16 police, then we are required -- essentially, we are 17 required to attend. 18 COMMISSIONER STEPHEN GOUDGE: But 19 initiated by the pathologist. 20 DR. CHRISTOPHER MILROY: Well, -- 21 COMMISSIONER STEPHEN GOUDGE: Is there 22 any guideline as to when it is best practice to go? 23 DR. CHRISTOPHER MILROY: It's a decision 24 taken by the pathologist in the case if the police 25 haven't said so. But often, with a conversation with the

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1 police, the moment that you raise the suggestion that, I 2 think I ought to come and see the scene, they almost most 3 certainly will say, Yes, we think that's a good idea. 4 So -- and if necessary, the police can 5 organize it, you know, in terms of if you transport and 6 so on. So in the last two (2) weeks of on-call, I think 7 I went -- when in last month of my on-call, I certainly 8 went to three (3) -- three (3) scenes. 9 At least three (3). I can think of three 10 (3) straight off the top of my head. But two (2) were 11 overtly homicidal, and one (1) was a -- a strange death 12 that we couldn't work out what was going on, so they 13 asked me to go. And I have -- occasionally, I've been to 14 scenes after, as well. 15 Those were all with the body in situ. 16 COMMISSIONER STEPHEN GOUDGE: What about 17 Alberta and visiting the scene, Dr. Butt, when you were 18 the Chief Medical Coroner? 19 DR. JOHN BUTT: Well, I -- I have found 20 out in the Canadian experience and recall I haven't done 21 this work under government auspices since the end of 1999 22 but -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. JOHN BUTT: -- the issue has 25 significantly become one of how many people are there and

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1 the risk of contamination. Of course, there are ways of 2 dealing with that and -- and, notwithstanding the issue 3 of contamination, I don't think there's a hard-and-fast 4 policy about it. 5 As Professor Milroy has said, if you're 6 working on something that appears to be complicated, 7 where the circumstances are a little bit unusual, the 8 police may ask for -- for your eyes, you know, to help 9 develop the -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. JOHN BUTT: -- develop a perspective 12 on what happened. And an example he gave is blunt 13 trauma. My own -- my own feeling is that it's a good 14 idea to do that -- to go as often as the police require 15 it. But I don't think that they require it often anymore 16 in Canada. 17 And I think somebody last week, whether it 18 was Dr. McLellan or perhaps Dr. Pollanen, gave some 19 indication that visiting scenes by forensic pathologists 20 was not common. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. JOHN BUTT: And that brings up the 23 issue, of course, that the coroner is a medically 24 qualified person in the Province of Ontario and can add a 25 dimension, and is required by law to attend the scene the

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1 death. 2 That's my understanding of the Coroner's 3 Act in Ontario. It may have been altered, but I know 4 that it was that; it did have that in it. But I don't 5 know of any other province that requires a medical person 6 to visit the scene of death. And, in fact, aside from 7 the Province of Ontario and the four (4) medical examiner 8 jurisdictions, there are no provinces that have medical 9 eyes available to go to the scene of death. 10 DR. CHRISTOPHER MILROY: But I would just 11 add that -- with all due respect to the medical coroners 12 -- there are going to be cases where it requires the 13 pathologist because he's marrying up the injuries with 14 the -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. CHRISTOPHER MILROY: -- findings of 17 the scene. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 MR. JIM HAURANEY: I'd like to go to 20 another issue, now, Mr. Commissioner. 21 COMMISSIONER STEPHEN GOUDGE: Thank you. 22 23 CONTINUED BY MR. JIM HAURANEY: 24 MR. JIM HAURANEY: Mr. Registrar, 25 PFP144684, please, page 56.

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1 In this case, Doctor's, you -- and Dr. 2 Milroy, you are aware that myself, defence counsel, Crown 3 attorney, two (2) police officers met with my expert -- 4 in this was was Dr. Ein, who was a pediatric surgeon of 5 some renown in the Country, along with Dr. Smith. 6 Now, I know the Commissioner talked about 7 mediation and there was some talk about, prior to the 8 criminal cases proceeding, should there be a meeting. 9 Now, in fact, coming from a smaller community where 10 generally Crown and defence, you know, get along 11 relatively well as far as speaking to each other. It was 12 arranged that this meeting took place -- take place. It 13 was at this meeting that Dr. Smith turned his attention 14 to the timing of the injuries and was satisfied with Dr. 15 Ein's expertise that these injuries happened fairly soon, 16 prior to death. 17 And that he pointed out to Dr. Smith that 18 a child would have been in immediate pain, would have 19 taken into a fetal position, vomiting, would not have 20 been playing around as -- as he suggested. And that's 21 what took place prior to JD taking care of a baby. 22 Now as it turned out, that worked well so 23 far as a resolution of the criminal charges were 24 concerned. As it turned out, my client was absolved of - 25 - of being involved in the death of that child.

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1 However, it didn't take until about eight 2 (8), nine (9) years later that she was completely 3 absolved, because JD had admitted to committing it. 4 There are other implications that Jenna's 5 mother suffered, and that is the Children's Aid Society's 6 protection procedures. And I'd like to review that, Mr. 7 Commissioner. 8 Unfortunately, even though the criminal 9 charges were withdrawn against Jenna's mother, the 10 protection agency continued to hold and took the care of 11 her children. 12 And in fact, I'd like to go through that 13 now. And I need you to go to, I believe, Tab 10, Mr. 14 Registrar. It's not in the volumes. 15 COMMISSIONER STEPHEN GOUDGE: Sorry, Tab 16 10 of this -- 17 MR. JIM HAURANEY: Of the standing -- of 18 our standing. 19 DR. CHRISTOPHER MILROY: Of the 20 additional documents. 21 MR. MARK SANDLER: This is the large 22 binder of additional documents. 23 COMMISSIONER STEPHEN GOUDGE: Thank you. 24 This is a handwritten note, Mr. Hauraney? 25 MR. JIM HAURANEY: Well actually I'm not

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1 sure where I'm going to start, but I'll -- just give me a 2 second please. 3 COMMISSIONER STEPHEN GOUDGE: Tab 10 is a 4 handwritten document -- 5 MR. JIM HAURANEY: Right. 6 COMMISSIONER STEPHEN GOUDGE: -- at least 7 in my book. 8 MR. JIM HAURANEY: I'm sorry, can we go 9 to Tab 11? 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER STEPHEN GOUDGE: Can you go 14 to the next Tab? 15 THE REGISTRAR: The next tab? 16 MR. JIM HAURANEY: Yeah, next tab please. 17 18 (BRIEF PAUSE) 19 20 MR. JIM HAURANEY: All right. 21 COMMISSIONER STEPHEN GOUDGE: There it 22 is. 23 24 CONTINUED BY MR. JIM HAURANEY: 25 MR. JIM HAURANEY: Okay. All right.

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1 Now, gentlemen, this comes to the role of 2 the pathologist and the Crown in -- in dealing with the 3 Child Protection Services of the Children's Aid Society. 4 To put it in perspective, Dr. Smith in the 5 timing of this, was aware that the meeting that took 6 place with Dr. Ein was in early April -- April the 23rd. 7 Dr. Smith, I believe this is dated April 26th, this 8 letter -- note from Ms. Sullivan, who is a case worker at 9 the Children's Aid Society in Peterborough. 10 Ms. -- or my client's -- I should say, 11 Jenna's mother was expecting another child. That child, 12 I believe, was due to be born in May of that year that 13 we're dealing with here, in 1999. 14 The Children's Aid Society were concerned 15 whether or not they would apprehend this child at birth. 16 And the Children's Aid took various steps to determine 17 whether or not they should make that application. And 18 the case worker was not aware of -- as to the Crown's 19 position of whether or not the Crown attorney would have 20 any input as to what their position would be. 21 COMMISSIONER STEPHEN GOUDGE: What is 22 this document? 23 MR. JIM HAURANEY: This is a document of a 24 handwritten note from the Children's Aid worker. 25 COMMISSIONER STEPHEN GOUDGE: A. Sullivan

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1 is the Children's Aid worker -- 2 MR. HAURANEY: That -- 3 COMMISSIONER STEPHEN GOUDGE: -- as far 4 as you understand it -- 5 MR. HAURANEY: That's correct. 6 COMMISSIONER STEPHEN GOUDGE: -- Mr. 7 Hauraney? 8 MR. JIM HAURANEY: Yes, it is. 9 10 CONTINUED BY MR. JIM HAURANEY: 11 MR. JIM HAURANEY: Yes, it is. Now -- so 12 she was asking the Crown attorney's office as to what 13 their position would be with respect to the apprehension 14 of a child. 15 Now if you go to page 12 -- 16 COMMISSIONER STEPHEN GOUDGE: Page 12 or 17 Tab 12? 18 MR. JIM HAURANEY: Tab 12. I'm sorry, 19 Tab 12. Is that Tab 12? Okay. Thank you. 20 COMMISSIONER STEPHEN GOUDGE: Yeah, 21 that's Tab 12. 22 23 CONTINUED BY MR. JIM HAURANEY: 24 MR. JIM HAURANEY: Case dated April 26th, 25 27th and 28th. The caseworker met with the Crown

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1 attorney's office and the Crown had indicated that he was 2 unable to provide the Cana -- the Children's Aid Society 3 with the Crown brief as he's in the middle of a 4 preliminary hearing. I think that's what it says. 5 The Crown attorney states he "will not be 6 dropping the charges on Thursday." However, he did do 7 that in fact, so he was aware that he was going to be 8 doing that. 9 "At the moment it's definitely a --" 10 Next Tab, I guess. 11 COMMISSIONER STEPHEN GOUDGE: Is there a 12 question lurking in here somewhere, Mr. Hauraney? 13 MR. JIM HAURANEY: There is, it's coming. 14 I'm just wearing the bifocals. I'm trying to rush. The 15 next Tab. 16 MR. MARK SANDLER: I think you had 17 suggested to the Registrar "next tab," and you probably 18 want the next page. 19 MR. JIM HAURANEY: Oh, that's the -- the 20 -- all right. Sorry. Sorry Madam -- or Mr. Registrar. 21 MR. MARK SANDLER: You want the -- you 22 want the second page of PFP200 -- 23 MR. JIM HAURANEY: Oh, there we go. 24 MR. MARK SANDLER: -- 013. 25

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1 CONTINUED BY MR. JIM HAURANEY: 2 MR. JIM HAURANEY: He states that Jenna's 3 mother was a child abuser, but whether she is a child 4 killer needs to be determined. 5 Now, Drs. and Mr. Commissioner, the Crown 6 attorney was fully aware that these charges against the 7 child's mother was going to be withdrawn and I just 8 wonder -- 9 MR. MARK SANDLER: Excuse me for a 10 moment, Mr. Hauraney. I think we'd better be very 11 careful for the record -- 12 MR. JIM HAURANEY: Right. 13 MR. MARK SANDLER: -- because I'm not 14 quite sure what's evidence that's based either on the 15 overview report or on the documentation -- 16 MR. JIM HAURANEY: Right. 17 MR. MARK SANDLER: -- and what Mr. 18 Hauraney is, in effect, giving evidence on. So I'd ask 19 Mr. Hauraney to confine himself to -- to the documents. 20 MR. JIM HAURANEY: I will. 21 MR. MARK SANDLER: Thank you. 22 23 CONTINUED BY MR. JIM HAURANEY: 24 MR. JIM HAURANEY: You'll see that there 25 are some letters -- there were letters that were written

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1 by myself to the Crown attorney and I don't know if they 2 are here or not, but I want to -- I'll -- I'll go further 3 on, Mr. Registrar. 4 So the question I have is: What is the 5 duty of the Crown in instance that -- that you are aware? 6 Or are you able to make any comment as the duty of the 7 Crown and Child Protective Services? 8 MS. KIM TWOHIG: Mr. Commissioner, I'd 9 like to object to that question on the grounds that these 10 witnesses are not really in a -- in the best position to 11 follow -- to comment on the needs of the Crown. 12 COMMISSIONER STEPHEN GOUDGE: It seems to 13 me the -- 14 MR. JIM HAURANEY: That's fine. 15 COMMISSIONER STEPHEN GOUDGE: -- fact 16 background for this is a little obscure at the moment, 17 Mr. Hauraney. 18 MR. JIM HAURANEY: Very well. 19 Can we go then to Tab -- go back to Tab 20 10, please, Mr. Registrar. Yes, Mr. Registrar. 21 This is a -- again, a note from Ms. 22 Sullivan in con -- conversation with Dr. Smith. 23 Keeping in mind, please, gentlemen, that 24 Dr. Smith was aware of the meeting, in fact he was 25 present and his opinion has changed with respect to the

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1 timing of the death. I'm wondering if this is -- 2 COMMISSIONER STEPHEN GOUDGE: Who is this 3 a note of? 4 MR. JIM HAURANEY: That's a note that Ms. 5 Sullivan had a conversation with Dr. Smith as to the -- 6 DR. CHRISTOPHER MILROY: The signature 7 seems completely different. 8 COMMISSIONER STEPHEN GOUDGE: Yeah, it 9 does. 10 MR. MARK SANDLER: Yeah, I think this is 11 K. Brown as opposed to Ms. Sullivan. 12 MR. JIM HAURANEY: That is correct; I'm 13 misreading, K. Brown. Again, she is a -- she prepared an 14 affidavit for the Children's Aid Society, and in that 15 affidavit included the conversation that she had with Dr. 16 Smith, Mr. Registrar -- or Mr. Commissioner. 17 And I'm wondering the significance and 18 whether or not this statement would be appropriate for a 19 pathologist to give to a Children's Aid Society 20 application, keeping in mind what has taken place. 21 COMMISSIONER STEPHEN GOUDGE: Sorry, what 22 is the alleged statement here? It's the one in the note? 23 24 CONTINUED BY MR. JIM HAURANEY: 25 MR. JIM HAURANEY: When Dr. Smith was

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1 advised that there is a possibility of -- that would be 2 the -- the daughter of -- of a sister of Jenna -- 3 returning home, he replied: 4 "Well, I guess I'll be doing his 5 autopsy too." 6 That, Mr. Commissioner, is in relation to 7 the fact that, as I've indicated, Jenna's mother was 8 going to be having another child in May of 1999. 9 The Children's Aid Society were going to 10 be bringing application to apprehend that child at birth. 11 And I'm wondering -- 12 DR. CHRISTOPHER MILROY: Well -- 13 MR. JIM HAURANEY: -- Dr. Milroy, would 14 that be an appropriate comment to make to the Children's 15 Aid Society, given the information and knowledge that Dr. 16 Smith had at the time? 17 DR. CHRISTOPHER MILROY: Well, I -- I 18 don't think you need expert comment that that is not an 19 appropriate comment to make. The pathologist should 20 confine himself to the factual findings and opinions 21 expressed about the case that he has dealt with. 22 MR. JIM HAURANEY: What would there be -- 23 what are their duties as a pathologist? What are your 24 duties in dealing with the children protection services? 25 DR. CHRISTOPHER MILROY: What happens in

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1 England when we get involved in family court proceedings 2 is we go along and we give our opinion on the causation 3 of the injuries and cause of death in respect of the case 4 that we're involved in. 5 We don't comment at all about other 6 children unless we're -- we may -- there are occasional 7 cases if you have, say, surviving children with injuries. 8 We may be asked to comment on the injuries on a surviving 9 child, but we're never asked anything about the -- the 10 course or conduct of what to do with any future children, 11 that's entirely a matter for the -- for the tri -- the 12 judge, it has nothing to do with us. 13 MR. JIM HAURANEY: From the pathology 14 that you did with respect -- on the pathology -- 15 MR. MARK SANDLER: Sorry, I don't mean to 16 interrupt, but just to be clear because I -- I think 17 we've gone off on a track that is actually being 18 corrected. 19 As I understand the chronology of the -- 20 as I understand the chronology as reflected in the 21 overview report, the child was already born as of May the 22 1st of 1999, and this would be after that event. 23 So the issue is -- 24 COMMISSIONER STEPHEN GOUDGE: So the 25 blacked out --

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1 MR. MARK SANDLER: -- whether or not -- 2 COMMISSIONER STEPHEN GOUDGE: So the 3 blacked out name is the recently born child? 4 MR. MARK SANDLER: Exactly right. 5 6 CONTINUED BY MR. JIM HAURANEY: 7 MR. JIM HAURANEY: I thought it would 8 have been because the other child had been in the care of 9 the Children's Aid already. 10 Just one (1) question before we break, Mr. 11 Commissioner. Further on in that note, I'm just 12 wondering if there was any pathology that you found that 13 would cause Dr. Smith to make the comment that on Jenna's 14 small size and expressed his concern regarding her being 15 a failure to thrive as a child. Was there any -- 16 DR. CHRISTOPHER MILROY: There was -- 17 MR. JIM HAURANEY: -- where did that come 18 from? 19 DR. CHRISTOPHER MILROY: Well, there's -- 20 I don't know where that comes from. I do not recall 21 anything in the pathology or the post-mortem findings 22 that specifically indicates the comment that this child 23 has failed to thrive. 24 MR. JIM HAURANEY: I thought maybe this 25 would be a good place, please. Thank you.

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1 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 2 Hauraney. 3 We will resume then at 9:30 tomorrow and 4 you will complete. You have an hour and a half. 5 Rise until 9:30 tomorrow. 6 DR. CHRISTOPHER MILROY: Thank you. 7 8 --- Upon adjourning at 4:16 p.m. 9 10 11 12 13 Certified Correct 14 15 16 17 _____________________ 18 Rolanda Lokey, Ms. 19 20 21 22 23 24 25