11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 November 23rd, 2007 25
21 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa (np) ) 5 Johnathan Shime ) 6 7 Brian Gover (np) ) Office of the Chief Coroner 8 Luisa Ritacca ) for Ontario 9 Teja Rachamalla (np) ) 10 11 Jane Langford ) Dr. Charles Smith 12 Niels Ortved (np) ) 13 Erica Baron (np) ) 14 Grant Hoole (np) ) 15 16 William Carter (np) ) Hospital for Sick Children 17 Barbara Walker-Renshaw (np) ) 18 Kate Crawford ) 19 20 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 21 Association 22 Mara Greene (np) ) Criminal Lawyers' 23 Breese Davies (np) ) Association 24 Joseph Di Luca (np) ) 25 Jeffrey Manishen )
31 APPEARANCES (CONT'D) 2 James Lockyer ) William Mullins-Johnson, 3 Alison Craig ) Sherry Sherret-Robinson and 4 Phil Campbell (np) ) seven unnamed persons 5 6 Peter Wardle ) Affected Families Group 7 Julie Kirkpatrick ) 8 Daniel Bernstein (np) ) 9 10 Louis Sokolov ) Association in Defence of 11 Vanora Simpson (np) ) the Wrongly Convicted 12 13 Jackie Esmonde (np) ) Aboriginal Legal Services 14 Kimberly Murray (np) ) of Toronto and Nishnawbe 15 Sheila Cuthbertson (np) ) Aski-Nation 16 Julian Falconer ) 17 18 Suzan Fraser Defence for Children 19 International - Canada 20 21 William Manuel (np) ) Ministry of the Attorney 22 Heather Mackay (np) ) General for Ontario 23 Erin Rizok (np) ) 24 Kim Twohig 25
41 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
51 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 by Mr. Jim Hauraney 7 9 Cross-Examination by Mr. Louis Sokolov 53 10 Cross-Examination by Mr. Jerrfry Manischen 71 11 Cross-Examination by Mr. Julian Falconer 87 12 Cross-Examination by Ms. Luisa Ritacca 122 13 Re-Direct Examination by Mr. Mark Sandler 154 14 15 16 Certificate of transcript 160 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 6 DR. JOHN BUTT, Resumed 7 DR. JACK CRANE, Resumed 8 DR. CHRISTOPHER MILROY, Resumed 9 10 COMMISSIONER STEPHEN GOUDGE: Good 11 morning. Mr. Sandler...? 12 MR. MARK SANDLER: Yes, good morning, 13 Commissioner. I just wanted to advise you that we've 14 rejigged the -- the order a little bit of cross- 15 examination just to accommodate counsel for the CPSO who 16 can't be here in the afternoon. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 MR. MARK SANDLER: So we're proposing 19 that Mr. Hauraney complete his cross-examination, then 20 AIDWIC's cross-examination will proceed, immediately 21 followed by CPSO, if that meets with your approval? 22 COMMISSIONER STEPHEN GOUDGE: Sure. 23 MR. MARK SANDLER: So we'll just slot in 24 CPSO between AIDWIC and the Criminal Lawyers' 25 Association.
71 COMMISSIONER STEPHEN GOUDGE: Okay. 2 MR. MARK SANDLER: Thank you. 3 COMMISSIONER STEPHEN GOUDGE: Okay, Mr. 4 Hauraney...? 5 6 CONTINUED CROSS-EXAMINATION BY MR. JIM HAURANEY: 7 MR. JIM HAURANEY: Thank you and good 8 morning, Mr. Commissioner. Good morning esteemed panel. 9 DR. CHRISTOPHER MILROY: Good morning. 10 DR. JACK CRANE: Good morning. 11 COMMISSIONER STEPHEN GOUDGE: Good 12 morning. 13 MR. JIM HAURANEY: I'd like to, Your 14 Honour, discuss an issue of complaints that Mr. Lockyer 15 brought up in -- in yesterday's cross-examination and in 16 his review of some English reports and the procedures of 17 publicly being able to complain about the offices of 18 pathologists, I believe. 19 And in this jurisdiction there does not 20 appear to be a user-friendly process for a member of the 21 public to complain about a pathologist. 22 COMMISSIONER STEPHEN GOUDGE: Well, I 23 haven't heard the evidence yet, okay. 24 MR. JIM HAURANEY: I'm going to go into 25 that.
81 COMMISSIONER STEPHEN GOUDGE: Okay. 2 MR. JIM HAURANEY: May -- 3 COMMISSIONER STEPHEN GOUDGE: Let's just 4 ask your question, Mr. Hauraney. 5 MR. JIM HAURANEY: I'm prefacing it. I'm 6 going to be asking Dr. Butt, specifically, what -- well, 7 perhaps I ū I think I have to do this, Mr. Commissioner, 8 I'm going to have to refer to the fact that Jenna's 9 mother is -- Jenna's mother brought an application to the 10 CPSO with respect to a complaint. 11 Nicholas' grandfather -- and we know that 12 Nicholas -- Nicholas' mother was never charged with a 13 criminal offence; however, there were Child Protection 14 Services files that had taken place following the 15 investigation. 16 And I think it's important for this 17 Commission to know the process that Nicholas' grandfather 18 went through to try to get his point across as to 19 absolving his -- his daughter. And I'm going -- I'm just 20 going to refer, I'm not going to go into any evidence, 21 Mr. Commissioner. 22 But I just need you to understand the 23 different governing bodies that Nicholas' grandfather 24 went through. And then -- we'll then ask Dr. Butt what 25 procedures, if any, are available in Manito -- or in
91 Alberta, or maybe his experience in the United States. 2 COMMISSIONER STEPHEN GOUDGE: Why don't 3 you just ask him about Manitoba and Alberta -- 4 MR. JIM HAURANEY: Very well, sir. 5 COMMISSIONER STEPHEN GOUDGE: -- because 6 otherwise you're giving evidence when you describe the 7 Ontario process, unless it's in the overview report. 8 MR. JIM HAURANEY: It is. 9 COMMISSIONER STEPHEN GOUDGE: Well if you 10 can refer to the overview report, because that's -- 11 MR. JIM HAURANEY: I am going to refer to 12 that. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 MR. JIM HAURANEY: Thank you, sir. 15 16 CONTINUED BY MR. JIM HAURANEY: 17 MR. JIM HAURANEY: And I'm going to refer 18 to PFP143263, Tab 19, I believe, in Volume 1 of, I 19 believe that Dr. Crane did the overview of Nicholas. 20 And that's page 61, Mr. Registrar. 21 22 (BRIEF PAUSE) 23 24 MR. JIM HAURANEY: Thank you. 25 DR. JACK CRANE: You'll have to use mine,
101 excuse me. 2 DR. JOHN BUTT: I'm sorry, I was looking 3 for -- 4 MR. JIM HAURANEY: That's fine. Page 5 61... 6 DR. JOHN BUTT: Yes, I have it. Which 7 paragraph? 8 MR. JIM HAURANEY: Dr. Butt, I just -- 9 I'm just going to go through the various ministries that 10 Nicholas' grandfather went through. And you'll see at 11 large (D) there was a complaint made to the Coroner's 12 Council, do you see that? 13 DR. JOHN BUTT: I do, yes. 14 MR. JIM HAURANEY: All right. I'm not 15 going to go into the specifics of it. I want to go to 16 page 67, Mr. Registrar. And you'll see that he made a 17 complaint as well to the Solicitor General, do you see 18 that? 19 DR. JOHN BUTT: I do, yes. 20 MR. JIM HAURANEY: And, page 69, sir. 21 Page 69. There was a complaint made to the Minister of 22 Community and Social Services, do you see that, sir? 23 DR. JOHN BUTT: I do, yes. 24 MR. JIM HAURANEY: And on the same page, 25 there was a complaint made through the OmbudsmanĘs
111 Investigation or the OmbudsmanĘs Office in Ontario, do 2 you see that, sir? 3 DR. JOHN BUTT: I do. 4 MR. JIM HAURANEY: And at page 75, Mr. 5 Registrar. Again, there's a complaint made regarding Dr. 6 Smith's conduct to the College of Physicians and Surgeons 7 of Ontario, do you see that, sir? 8 DR. JOHN BUTT: What was that, the 9 paragraph? 10 MR. JIM HAURANEY: J, paragraph J. 11 DR. JOHN BUTT: Yes, I see it. Yes, I do 12 see it. 13 MR. JIM HAURANEY: Now with respect to 14 that, at page 76, Mr. Registrar. At the top of the page, 15 the College of Physicians and Surgeons, Dr. Butt, took 16 the position that they had no jurisdiction to take any 17 action regarding complaints against a physician who is 18 acting as a coroner in pursuance of his or her authority 19 under the Coroners Act. 20 Instead, jurisdictions lies with the Chief 21 Coroner of Ontario, do you see that, sir? 22 DR. JOHN BUTT: I do. 23 MR. JIM HAURANEY: Now, in respect to the 24 matters under the Medical Examiner's Office, is there any 25 difference under that program than there is in Ontario,
121 as far as the complaint mechanism is concerned? 2 DR. JOHN BUTT: It's -- I don't want to 3 complicate this. In the medical examiner's system, 4 there's similar legislation redressing concerns in the 5 province of Alberta by referring the matter to a Board 6 established under the Act; the Fatality Inquiries Act, 7 the Board called the Fatality Review Board. 8 They can review the behaviour, 9 professional or otherwise, of a medical examiner 10 appointed under the Act. There is no authority in the 11 Office of the Chief Medical Examiner, similar to that of 12 the coroner. 13 That means to say that the judicial or 14 quasi-judicial functions of the coroner do not apply, so 15 the protection of the coroner or the Coroner's Office 16 from -- that is required because of the coroner's 17 appointment as a quasi-judicial officer -- it's an 18 officer of the Court; it's not my area, but there's -- 19 it's not required in provinces that don't have an inquest 20 function. 21 So that -- if you doubt -- if -- if one 22 made a complaint to the Chief Medical Examiner concerning 23 a pathologist who worked in the system, given that that 24 pathologist was a Government employee, it would have to 25 be dealt with by the Chief Medical Examiner, I suspect,
131 under the Public Service Act, et cetera. 2 In terms of him being a non-government 3 employee, such as a hospital-based pathologist doing 4 autopsies, there would be no statutory function, 5 whatsoever, in the legislation that I know as the medical 6 -- as the Fatality Inquiries Act Nova Scotia or Alberta. 7 I have no experience in Manitoba, but the legislation is 8 similar. So that exhausts that office. 9 Complaints to the Minister; I -- I have no 10 reason to believe that they wouldn't be addressed by the 11 Minister. But in terms of the equivalent of referring 12 the matter to the College of Physicians and Surgeons; 13 that's a right of any person to do that. I don't know 14 that the College of Physicians and Surgeons wouldn't 15 respond similarly where there was a Government person 16 such as the Chief Medical Examiner. 17 I had a complaint made against me in 18 Alberta on one (1) occasion after I'd left the Province; 19 that was addressed to the College of Physicians and 20 Surgeons, and they went ahead and investigated it. And I 21 may say, parenthetically, I was -- there was no issue. 22 But, I'm sorry if that's a bit disjointed, 23 but that's the extent of my experience, except I have 24 been involved in Province of Alberta in an Ombudsman's 25 investigation where complaints are made against the
141 Office. And that's an absolute right of the Ombudsman to 2 do that. 3 But what the Ombudsman's authority is to 4 investigate a pathologist who works on a fee-for-service 5 basis for the system, I -- I have no real understanding 6 of that. 7 MR. JIM HAURANEY: So there's nothing in 8 place as there is in the United Kingdom in our 9 jurisdiction at all, correct? 10 DR. JOHN BUTT: The -- it's hard for me 11 to transpose that because you have to be careful here; 12 they're looking at two different things. You're looking 13 at a coroner and you're looking at a forensic 14 pathologist. We've talked about the complaints process 15 of the forensic pathologist in the United Kingdom. I 16 don't think that there's anything similar to that in 17 Canada. 18 MR. JIM HAURANEY: What about United 19 States? You have any -- you said that you -- I think -- 20 I don't know if you practise in the United States, but 21 you have some familiarity with any of the states there? 22 DR. JOHN BUTT: I -- I don't really, no. 23 MR. JIM HAURANEY: All right. Thank you. 24 Mr. Commissioner, I'd like to go into the area that we 25 described, and there was some training and what is and is
151 not a pathologist and, perhaps, a forensic pathologist. 2 Dr. Milroy, perhaps you can assist us a 3 little bit. I understand that there is a -- a body 4 called an anatomical pathologist. 5 DR. CHRISTOPHER MILROY: That's correct. 6 And if that's a -- that's a North American term. We have 7 some -- sim -- we have a different term for an 8 essentially identical practitioner in the UK which is a 9 histopathologist. 10 MR. JIM HAURANEY: And then you have a 11 forensic pathologist? 12 DR. CHRISTOPHER MILROY: We have separate 13 sub-specialities in the United Kingdom of forensic 14 pathology, pediatric pathology and neuropathology and 15 cytopathology, which are all considered to be sub- 16 specialities of histopathology or anatomopathology. 17 MR. JIM HAURANEY: And is there any 18 further education or training that needs to be done by a 19 person who wants to be a forensic pathologist? 20 DR. CHRISTOPHER MILROY: The training 21 program is either more training on top of histopathology, 22 as I've said, or it is separate specialist training as a 23 forensic pathologist. 24 MR. JIM HAURANEY: And that -- does that 25 go through some board to be credited?
161 DR. CHRISTOPHER MILROY: Yes. Well, in - 2 - in -- if you -- you have to obtain an exam either 3 through the Royal College of Pathologists, and that's 4 what I'm Chief Examiner for, and -- and Dr. Crane is also 5 an examiner for that. 6 Also, as we've already mentioned, the 7 organization called the Worshipful Society of 8 Apothecaries, which is actually a London Liberty company, 9 but historically set up an examination in forensic 10 pathology. 11 It funded -- it's the oldest actually 12 awarding -- itĘs the oldest organisation awarding medical 13 qualifications in the world actually; it was set up in 14 1617, but they set up an exam in forensic pathology -- 15 the -- the -- the -- which Dr. Crane is the Convenor. 16 So you have to -- not only do you have to 17 train in forensic pathology, but you have to pass an exam 18 in forensic pathology, and certainly in England and 19 Wales, it's not the same actually in the other jurisdic - 20 - jurisdictions; there is this register of re -- of 21 qualified forensic pathologists. 22 COMMISSIONER STEPHEN GOUDGE: Can I ask a 23 -- I'm not sure I've got in my head, Dr. Milroy, what the 24 time lines are assuming one goes the continuing education 25 route and the additional education required to be a
171 forensic pathologist. 2 DR. CHRISTOPHER MILROY: Well -- 3 COMMISSIONER STEPHEN GOUDGE: So for the 4 basic histopathology -- 5 DR. CHRISTOPHER MILROY: Anatomic 6 pathology is five (5) years. 7 COMMISSIONER STEPHEN GOUDGE: On top of a 8 residency and after an MD? 9 DR. CHRISTOPHER MILROY: No. After 10 you've got your MD equivalent -- 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 DR. CHRISTOPHER MILROY: -- you have to 13 do your internship -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. CHRISTOPHER MILROY: -- followed by-- 16 COMMISSIONER STEPHEN GOUDGE: A five (5) 17 year program. 18 DR. CHRISTOPHER MILROY: -- effectively a 19 five (5) year program. 20 COMMISSIONER STEPHEN GOUDGE: Okay. Now 21 but the overlay on that -- 22 DR. CHRISTOPHER MILROY: Overlay on that 23 now is going to be about two (2) years. 24 COMMISSIONER STEPHEN GOUDGE: Two (2) 25 years.
181 DR. CHRISTOPHER MILROY: Yes, it's 2 effectively two (2) years now; it was a little bit less 3 in the past. But also it should be pointed out that when 4 you are doing your histopathology training you have to 5 have done some medicolegal, but non-forensic work. 6 COMMISSIONER STEPHEN GOUDGE: As part of 7 the basic five (5) year residency. 8 DR. CHRISTOPHER MILROY: Yes. I mean at 9 the moment we make everybody who is an anatomic 10 pathologist do an autopsy. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. CHRISTOPHER MILROY: ItĘs part of the 13 exam. They physically have to do an autopsy -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. CHRISTOPHER MILROY: -- in front of 16 the examiners, because I examine in that, as well. And 17 they are asked general non-forensic questions about 18 conducting their autopsies and knowledge of the coroner's 19 system -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. CHRISTOPHER MILROY: -- and so on. 22 You can train directly as a forensic pathologist, and 23 that's also a five (5) year program, but you're not 24 trained as much in anatomic pathology and you cannot -- 25 you could not hold a post as an anatomic pathologist by
191 that route. 2 Now, one (1) of the hist -- it's a 3 historic reason in the past because there was no 4 structure to forensic pathology. 5 COMMISSIONER STEPHEN GOUDGE: Right. 6 DR. CHRISTOPHER MILROY: Some may argue 7 we still don't really have much of a structure. You've 8 jeopardised your career by just training as a forensic 9 pathologist if you weren't sure that you were going to 10 get a job because they were few and far between and it 11 was difficult to look at how you're going to get to that. 12 There's a historic reason why we train as 13 histopathologists, as well as logic. I have to say that 14 if you go to America, and also currently in Canada, you 15 have to always train first as an anatomic pathologist -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. CHRISTOPHER MILROY: -- before you 18 do forensic pathology. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 Right. What about numbers; how many would there be 21 currently in the post-anatomical pathology program for 22 forensic pathology? 23 DR. CHRISTOPHER MILROY: There's -- 24 COMMISSIONER STEPHEN GOUDGE: What are 25 you talking about national?
201 DR. CHRISTOPHER MILROY: Virtually none 2 because we've modified the training in virtually all -- I 3 think there's two (2) at the moment, not in the UK, but 4 we've got about ten (10) in the -- training to be full- 5 time forensic pathologists. 6 COMMISSIONER STEPHEN GOUDGE: Is the 7 other routine easier? I mean what will -- 8 DR. CHRISTOPHER MILROY: I think it 9 possibly -- well, it seems certainly quicker. Is it 10 easier -- 11 COMMISSIONER STEPHEN GOUDGE: Or quicker 12 would seem to be the explanation -- 13 DR. CHRISTOPHER MILROY: I think quick 14 is -- 15 COMMISSIONER STEPHEN GOUDGE: -- for the 16 preference. 17 DR. CHRISTOPHER MILROY: Quicker. And 18 also these people want to practice as forensic 19 pathologists; they don't want to practice -- I mean what 20 I tell my trainees is, if you only want to do forensic 21 pathology and you really have no interest in being -- 22 doing any anatomic pathology, don't train as an anatomic 23 pathologist; just train as a forensic pathologist. 24 COMMISSIONER STEPHEN GOUDGE: I see. 25 DR. CHRISTOPHER MILROY: We -- when we've
211 got more -- we've got more jobs, and more relevantly I 2 think we recognise there is -- there is a shortage of 3 forensic pathologists in the -- everywhere; it's not just 4 confined to Canada. 5 The UK has a shortage. There are jobs -- 6 I get emailed about jobs in the States, I get emailed job 7 -- about jobs in Australia, New Zealand. There -- there 8 is world shortage. And one (1) of the reasons, sadly to 9 say, is that governments don't pay any attention to 10 forensic pathology until there's a crisis. And then when 11 there is a crisis, you know, it takes time to resolve. 12 MR. JIM HAURANEY: Yeah. 13 DR. CHRISTOPHER MILROY: But -- but there 14 is a very specific training in the accreditation process 15 in England, to sort of to answer your ... 16 MR. JIM HAURANEY: Right. 17 DR. CHRISTOPHER MILROY: And -- and why 18 Northern Ireland doesn't have a register, because they're 19 a single unit. Dr. Crane can speak to that. They expect 20 everyone to have the same qualifications and standards as 21 they do in England and Wales. 22 COMMISSIONER STEPHEN GOUDGE: Do you want 23 to tell us a little about Northern Ireland, Dr. Crane? 24 DR. JACK CRANE: Yes. Just one (1) 25 point, in general. In the past, Commissioner, people, if
221 you like, dabbled in forensic pathology. They spent most 2 of their time in anatomic pathology. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. JACK CRANE: And they sort of added 5 on and -- and did a -- did a bit. My view is, and I 6 think the view is coming around now by most forensic 7 pathologists, that this is not something that you can 8 dabble in. 9 If you want to be a forensic pathologist, 10 you need to dedicate yourself to forensic pathology, and 11 do forensic pathology and nothing else. Now, clearly, 12 there may be problems, you know, geographical problems in 13 relation to that. 14 But, nevertheless, it's -- it's not 15 something that you can dabble in. And people who dabble 16 in it can get themselves in -- into difficulty, into 17 problems. So, the training in -- in Northern Ireland is, 18 essentially, the same. 19 We don't have a Home Office list, because 20 the forensic pathologists are appointed directly by the 21 Minister, by the Secretary of State for Northern Ireland. 22 And he has the decision as to who he will appoint. 23 COMMISSIONER STEPHEN GOUDGE: The 24 training program...? 25 DR. JACK CRANE: It's, essentially, the
231 same, yes. 2 COMMISSIONER STEPHEN GOUDGE: Do you have 3 the two (2) routes? 4 DR. JACK CRANE: Yes. Although in -- in 5 my department which is a recognized training department, 6 I only take trainees who are going to be full-time 7 forensic pathologists, and who are going to sit their 8 examination in forensic pathology. 9 I'm not interested in dabblers or people 10 who -- who want to do a bit of this and that. 11 COMMISSIONER STEPHEN GOUDGE: So you 12 would have as your trainees, people who are in the direct 13 route to forensic pathology as opposed to those who are 14 doing anatomical pathology -- 15 DR. JACK CRANE: That's right. 16 COMMISSIONER STEPHEN GOUDGE: -- and then 17 want to go on and, in effect, sub-specialize? 18 DR. JACK CRANE: Yes. My trainees, they 19 -- part of the training program is in anatomic pathology, 20 and they do their first three (3) years in that. And 21 then the remainder of their training is in forensic 22 pathology, and they set their examination in forensic 23 pathology. 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 Recognizing the backgrounds from which both of you come,
241 and I'd ask Dr. Butt about this as well; which is the 2 quicker route to staffing up forensic pathology? 3 Is it to put the training program right 4 after the internship as a forensic pathology program, or 5 is it to overlay it as an addition to anatomic... 6 DR. JACK CRANE: Well, I think you can -- 7 you can do both. Clearly if you're residents, they have 8 a forensic pathology program, then they will probably get 9 trained up in forensic pathology earlier then if you do 10 anatomical pathology. 11 COMMISSIONER STEPHEN GOUDGE: 'Cause your 12 training program would be what, five (5) years? 13 DR. JACK CRANE: Five (5) years, that's 14 correct, yes. 15 COMMISSIONER STEPHEN GOUDGE: So it is 16 two (2) years shorter then the other route? 17 DR. JACK CRANE: Yes. And -- and I 18 think, my own personal view, that that's the best route. 19 COMMISSIONER STEPHEN GOUDGE: Do you 20 agree, Dr. Milroy? I mean, you both seem to be advocates 21 of the direct route? 22 DR. CHRISTOPHER MILROY: Well, I actually 23 have trained both. And -- and there are certain 24 advantages in having trained in anatomic pathology. 25 You're a little bit older. Maybe you're a little bit
251 wiser. 2 But in actual -- I think what -- I do 3 think that there is a minimum, and most fellowships are 4 actually a year, and I don't think a year's enough to try 5 and -- 6 COMMISSIONER STEPHEN GOUDGE: A year on 7 top of -- 8 DR. CHRISTOPHER MILROY: A year on top. 9 COMMISSIONER STEPHEN GOUDGE: -- pathology? 10 DR. CHRISTOPHER MILROY: Yeah. That's 11 not really much of an exposure to forensic pathology, 12 especially if you're in a quiet unit. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. CHRISTOPHER MILROY: So I think that 15 -- I mean, I think that -- I mean, functionally, there's 16 no rea -- the people who -- who now come out of the 17 forensic pathology program on -- are equally as good 18 forensic pathologists as those who done the anatomical -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. CHRISTOPHER MILROY: -- full 21 anatomical pathology route. I just wanted to say one (1) 22 thing about quote/unquote, "dabblers". They -- I mean, 23 if you think logically, we should allow part-time people, 24 you know, people who choose not to work full time. And 25 on that basis, there's no logic why you can't have
261 somebody having a mixed forensic pathology/anatomic 2 pathology job. 3 But what you have to say there, is there 4 is a minimum amount of exposure to forensic pathology 5 that anyone should have. So I can see the logic in -- 6 COMMISSIONER STEPHEN GOUDGE: A quarter 7 of one's practice or -- 8 DR. CHRISTOPHER MILROY: Well, or half. 9 I would think half of one's practice. I think if you -- 10 if you go down below half -- half a week -- whether you 11 are a part-timer for whatever reasons. I mean, 12 traditionally it's been obviously young mothers with 13 children who want to maintain their practice, but I don't 14 -- I don't want to confine it to sex or -- or age. 15 I think that there is logic to say -- 16 well, actually someone who is both a, say, a cardiac 17 pathologist and a -- which may inform his forensic 18 pathology on a -- perfectly reasonable. But, there 19 should be a minimum, and I've -- I've heard, you know, 20 tales of people saying, Well, I do ten (1) medical-legal 21 autopsies a year. That just is -- you cannot practice 22 adequately doing a handful of cases a year. You just 23 aren't going to have the experience. 24 COMMISSIONER STEPHEN GOUDGE: Dr. Butt, 25 what about the Canadian context where we are having
271 trouble getting into the post-histopathology specialty 2 route, and we have nothing by way of a full-time forensic 3 pathology program immediately following upon internship? 4 DR. JOHN BUTT: That's -- that is 5 correct. There was a residency position in the Office of 6 the Chief Medical Examiner in Alberta when I was there. 7 And I can't say what the status is, but I believe it was 8 removed for reasons of economy. 9 I -- I'd like to answer, if I may, about 10 the last question which has to do with histopathology. I 11 -- I tend to think that a strong background in 12 histopathology is important. And in the Canadian model 13 at present, that route is the only route that is 14 available and one is reasonably assured -- although I'm 15 not a member of the Royal College of Physicians and 16 Surgeons of Canada -- but one is reasonably assured that 17 the forensic pathology sub-specialty examination will 18 come out of a basic histopathology qualification. And 19 that the examination in histopathology will be the first 20 examination, and the sub-specialty examination and 21 experience of one (1) year will be the second. 22 That -- that is also the case in the 23 United States. The training program in the United States 24 I could speak to a little bit, in that you can qualify in 25 anatomical and forensic pathology in the United States
281 four (4) -- four (4) years after graduation from medical 2 school. 3 In Canada you can qualify in 4 histopathology or ano -- anatomical pathology -- read the 5 same -- after five (5) years from medical school. In 6 Canada, with the sub-specialty qualification looming this 7 forthcoming year, it will be a total of six (6) years. 8 That's -- that's a capsule. If there's other questions, 9 I'd be happy to -- 10 DR. CHRISTOPHER MILROY: One (1) thing -- 11 COMMISSIONER STEPHEN GOUDGE: I guess, 12 obviously, if there is a shortage, what's the quickest 13 route to staff up? And the longer you make the training 14 program, then -- 15 DR. CHRISTOPHER MILROY: Well, the 16 quickest route is actually if you can persuade anatomic 17 pathologists to train in forensic pathology. 18 COMMISSIONER STEPHEN GOUDGE: Existing 19 anatomic -- 20 DR. CHRISTOPHER MILROY: Existing ana -- 21 but, of course, that's then robbing the hospital service 22 of your anatomic pathologists -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. CHRISTOPHER MILROY: -- so there is 25 a --
291 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. CHRISTOPHER MILROY: -- there is a 3 downside. 4 COMMISSIONER STEPHEN GOUDGE: That is 5 sort of a zero-sum game in some ways. 6 DR. CHRISTOPHER MILROY: It -- it is. I 7 -- I think the other thing to say is that the fellowship 8 programs -- obviously, if you qualify as an anatomic 9 pathologist and then you're available to become a staff 10 specialist in the hospital, your salary is going to 11 increase significantly on that step. 12 Whereas, if you take a fellowship, you're 13 going to be depriving yourself of money or the, you know, 14 the -- the glittering prizes for at least another year. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. CHRISTOPHER MILROY: So you have to 17 set your fellowships to be attractive and the subsequent 18 jobs to be attractive. Because if people see that 19 anatomical pathology is a more lucrative and -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. CHRISTOPHER MILROY: -- and easier 22 route, they're going to take -- a lot of people are going 23 to take that and you're going to deprive yourself of the 24 best people coming into forensic pathology. 25 COMMISSIONER STEPHEN GOUDGE: Right.
301 Right. Sorry to take up that time, Mr. Hauraney -- 2 MR. JIM HAURANEY: That's okay. 3 COMMISSIONER STEPHEN GOUDGE: -- but, 4 obviously, this is an issue we're going to have to 5 grapple with. 6 7 CONTINUED BY MR. JIM HAURANEY: 8 MR. JIM HAURANEY: It is. And I'm going 9 to go into it further, Mr. Commissioner. 10 Dr. Milroy, the other day Dr. Butt 11 testified that if you don't have a forensic pathologist 12 doing an autopsy, you get a whole lot of problems. Now, 13 you did the autopsy -- or, I'm sorry -- you did the 14 overview or the review on Jenna and Sharon. 15 Is that correct? 16 DR. CHRISTOPHER MILROY: That's correct. 17 MR. JIM HAURANEY: And was that a factor 18 in -- in your reviewing the case; that Dr. Smith was not 19 a forensic pathologist? 20 DR. CHRISTOPHER MILROY: Well, it's my 21 understanding -- I haven't -- that Dr. Smith did not have 22 formal -- any -- any training in forensic pathology. And 23 in my -- it is clear to me that if a forensic pathologist 24 with experience of looking at stab wounds had looked at 25 Sharon, as subsequently happened, and if a forensic
311 pathologist with the -- inculcated into the issues of 2 timing and knowledge of the Court systems and some had 3 looked at Jenna, the conclusions that were reached 4 originally would not have been drawn. 5 MR. JIM HAURANEY: Okay. Now, I'd like 6 to go through, if I could, Mr. Commissioner, as we know, 7 I could go to PFP102210, and I hope I have this correct, 8 which would be Dr. Smith's curriculum vitae. Correct, 9 all right. 10 If we go under "Education", Dr. Milroy, 11 was he -- or perhaps Dr. Butt, the licenses held -- he's 12 a -- has a license of College of Physicians and Surgeons 13 of Ontario and a general license, GL31811. 14 There is no indication that he's a 15 licensed forensic pathologist, is that correct? 16 DR. JOHN BUTT: No, but, you know, to be 17 reasonable, there's an -- I -- I doubt that there is a 18 set of forensic pathologists registered uniquely as such 19 in any college in Canada. 20 MR. JIM HAURANEY: Okay, very well. And 21 to go -- can we go to page 2 of that document, please? 22 DR. CHRISTOPHER MILROY: I should also, 23 just before you go, point out that you can -- I don't 24 know what the -- he's a diplomat in American Board of 25 Pathology in, but you can be a diplomat of the American
321 Board of Foren -- of Pathology in America in forensic 2 pathology; you can be board certified. 3 Anatomic pathologists, I think they can be 4 board certified; pediatric board certified forensic and 5 board certified neuropathologists, so to be fair to Dr. 6 Smith until you clarify what his diploma is, then you 7 couldn't say on this evidence he was not a forensic 8 pathologist. 9 DR. JOHN BUTT: Right. 10 DR. CHRISTOPHER MILROY: Although I -- 11 it's my understanding, I believe it -- it was in anatomic 12 pathology. 13 MR. JIM HAURANEY: Correct. Now, if we 14 go to page 2, Dr. Butt, under the heading "Professional 15 Affiliations and Activities", you'll see he's a member of 16 American Academy of Forensic Sciences. 17 Do you know what education or what 18 qualifications you need to be a member of that society? 19 DR. JOHN BUTT: Roughly, yes. You 20 certainly don't need to be a forensic pathologist. There 21 are many forensic scientists - I'm using the word in the 22 broad context - firearms examiners, et cetera, that are 23 members of the American Academy of Forensic Science; the 24 cohort of pathologists would be one (1) of the smallest 25 groups.
331 DR. CHRISTOPHER MILROY: They even allow 2 lawyers. There is actually jurisprudence sections, so... 3 DR. JOHN BUTT: There -- there is another 4 group of forensic pathologists or pathology related 5 persons, mainly anatomical pathologists/forensic 6 pathologists who have another association, but I don't 7 see him listing that. 8 MR. JIM HAURANEY: Correct. All right. 9 I'd like to go through -- I'm going to refer to a number 10 of preliminary hearing matters and I -- I would like the 11 panel's comment in respect to this. 12 I'd like to go to additional document 13 PFP121972. I believe it's Tab 10 at page 2. At line 20. 14 MR. MARK SANDLER: These won't be in a 15 binder, Commissioner. 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 MR. JIM HAURANEY: Additional documents. 18 MR. MARK SANDLER: You may have been 19 provided with it in loose form. 20 COMMISSIONER STEPHEN GOUDGE: I'll look 21 at the screen. 22 23 CONTINUED BY MR. JIM HAURANEY: 24 MR. JIM HAURANEY: I'm going to go 25 through a number of these, panel members, and I -- I
341 wish your comments and I'll have a question for you. 2 This is Dr. Charles Smith was being sworn in and one (1) 3 of the questions, line 18, was from the Crown Attorney: 4 "And what is your function; what is it 5 that you do there?" 6 "A: Well, I'm a specialist in the area 7 of anatomic pathology, so I'm a member 8 of the Department of Pathology, which 9 is one (1) branch of laboratory 10 medicine, and so therefore my practice 11 of medicine is limited to the practice 12 of pathology as it related to infancy 13 and childhood." 14 And I go to additional documents, Volume 15 2, PFP011779, and I believe it's Tab 16; that's correct, 16 at page 5, please. Again, this is at a preliminary 17 hearing, and Dr. Smith again, was sworn in. 18 And he's being questioned by the Crown 19 attorney, Mr. McKenna (phonetic), at line 7: 20 "Q: Doctor, I understand that you're 21 involved in forensic pathology? 22 A: I'm the Director of the unit called 23 the Ontario Pediatric Forensic 24 Pathology Unit, which is located at the 25 Hospital for Sick Children."
351 Doctor, -- or the panel, do you have any 2 comment with respect to Dr. Smith perhaps not indicating 3 that he's not a forensic pathologist, or should that have 4 been brought to the Court's attention? 5 DR. JOHN BUTT: Well, if I may, the 6 question is rather a general question. 7 MR. JIM HAURANEY: I agree. 8 DR. JOHN BUTT: The word is involved in - 9 - and I think that it's a reasonable answer under the 10 circumstances. I can't -- I don't -- I don't think one 11 (1) is -- I'm not able to -- 12 MR. JIM HAURANEY: All right. 13 DR. JOHN BUTT: -- look at the issue 14 other then that context. 15 MR. JIM HAURANEY: Dr. -- Dr. Butt, -- 16 COMMISSIONER STEPHEN GOUDGE: Mr. 17 Sandler...? 18 MR. MARK SANDLER: Excuse me for a 19 moment. I think in fairness to Dr. Smith, this is a 20 transcript from -- from the Sharon preliminary inquiry. 21 And as I recall it, Mr. Rumble (phonetic) cross-examined 22 Dr. Smith at that preliminary inquiry on the fact that he 23 wasn't accredited as a form -- as a forensic pathologist, 24 and what significance that had. 25 And Dr. Smith made that acknowledgement in
361 the cross-examination. 2 MR. JIM HAURANEY: That's fair, thank 3 you. 4 5 CONTINUED BY MR. JIM HAURANEY: 6 MR. JIM HAURANEY: Can I indicate however 7 -- perhaps I can ask this question. If you state that 8 you're a Director of a unit called the Ontario Pediatric 9 Forensic Pathology, would -- you would expect that 10 director to be a forensic pathologist, Dr. Butt? 11 DR. JOHN BUTT: Um -- 12 MR. JIM HAURANEY: Or does it make any 13 difference? 14 DR. JOHN BUTT: This is a generic 15 question you're asking, is that correct? 16 MR. JIM HAURANEY: Yes. Yes, it is. 17 DR. JOHN BUTT: I think that if one (1) 18 were looking at the director of a forensic pathology 19 unit, you would expect the director of a forensic 20 pathology unit to be qualified in forensic pathology. 21 MR. JIM HAURANEY: All right. Thank you. 22 DR. CHRISTOPHER MILROY: I -- I was just 23 going to add, I think that also to be fair to all -- all 24 the directors of forensic pathology units in Canada, it 25 is my understanding that if you want to get a
371 qualification in forensic pathology, you have to leave 2 Canada at the moment. 3 COMMISSIONER STEPHEN GOUDGE: Yes, that's 4 certainly what we've been told. 5 DR. CHRISTOPHER MILROY: There are -- 6 it's my -- well, for example, it's my understanding that 7 Dr. Pollanen came to the United Kingdom and got his 8 diploma in Medical Jurisprudence, and did he -- he met 9 possibly the fifth examiner in the Worshipful Society of 10 Apothecaries whose system I left. 11 But seriously, they -- you know, you have 12 to go outside Canada to America or to the United Kingdom 13 at the moment, and that's obviously an -- an issue. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 16 CONTINUED BY MR. JIM HAURANEY: 17 MR. JIM HAURANEY: I appreciate it's 18 probably the job of defence counsel in going to further 19 questioning regarding a personĘs qualifications. But 20 leaving that aside, when you're first being questioned by 21 -- in-chief by a Crown, and -- and I'm going to refer to 22 PFP008700, and that's Tab 15 of additional documents 23 volume 2. 24 I believe it's volume 2, and at page 5. 25 Now I -- I appreciate this, but I guess what I'm trying
381 to get into the fact is that as a expert witness, and 2 you're being asked as to your qualifications in-chief, if 3 a mistake or -- or if question isn't exactly what your 4 expertise is in, should you qualify and make sure that 5 the jurors understands that immediately? 6 And I refer you to a question by Ms. Walsh 7 at line 3: 8 "Thank you. I'd just like to make it 9 very clear, sir, I intend to be asking 10 this witness who I understand to be a 11 forensic pathologist, for his opinion 12 as to cause of death, not only on 13 specifically his post-mortem but 14 possibly on other surrounding 15 circumstances. And it is my position 16 he's qualified to express an opinion on 17 that basis." 18 And then she goes on at the bottom of the 19 page: 20 "Dr. Smith, I understand you performed 21 a post-mortem on the infant who is 22 involved in this case. Is that 23 correct, Doctor?" 24 And he commences his testimony. Would 25 you, as -- as an expert, indicate to the jurists that, I
391 am not a forensic pathologist, or would you qualify that 2 opening statement? Or is it too ambiguous or -- 3 DR. CHRISTOPHER MILROY: I think it's 4 very difficult, to be fair. If you're -- if you believe 5 you're practising as a forensic pathologist, even if you 6 haven't had training in qualifications, but you are 7 practising as a forensic pathologist, you would regard 8 yourself as a forensic pathologist. 9 I think that the issue is not what you 10 call yourself in Court; the issue is what your training, 11 experience and qualifications are. 12 DR. JOHN BUTT: May I -- may I contribute 13 to that? 14 MR. JIM HAURANEY: Yes. 15 DR. JOHN BUTT: I -- I agree with the 16 comment and I'm aware of a very senior person, who is now 17 retired, who did a lot of forensic pathology, who 18 presented himself -- I assume -- in exactly these 19 circumstances, in another Province, and who also had a -- 20 a very substantial background in anatomic in -- or 21 histopathology, and who did a lot of work in a particular 22 area of hospital pathology -- based pathology -- in 23 connection with tumours. 24 And, I agree with Professor Milroy, if you 25 had a citopathology practice in a hospital, you know,
401 it's the same thing. I don't think that -- I think that 2 the issue of your job is one (1) thing; the issue of your 3 qualifications, quite another. 4 And you can get those -- I wouldn't say 5 you can get them mixed up, but there may be a need -- and 6 I think Professor Milroy may have indicated this -- to 7 make sure, under the circumstances, that the Court 8 understands that if you feel that there's, you know, a 9 problem. 10 MR. JIM HAURANEY: So, it wouldn't be up 11 to the expert to say what his field was and what his 12 experience is in. It would be up to counsel, I guess, to 13 kind of flush that out? 14 DR. JOHN BUTT: I think that's correct. 15 MR. JIM HAURANEY: Okay, thank you. And 16 my last issue, Mr. Commissioner, would be on the bias and 17 the tunnel vision that's been talked about and gone over 18 by Mr. Sandler. And, however, I'd just like to review a 19 couple of matters with respect to associated cases. 20 You -- Dr. Crane has -- has indicated here 21 before the Commission that he does not ascribe to the 22 "dirty thinking" syndrome when a -- an autopsy is to 23 commence to be performed, and that he tries to be 24 objective and then you go from there. 25 And then we've heard evidence from the
411 panel with respect to the filtering of information or 2 history that comes to them from the police and, perhaps, 3 other areas. And I believe Dr. Milroy had indicated that 4 you -- or maybe it had been Dr. Crane, I believe, 5 yesterday indicated that you could become so systemic in 6 the way of -- of your thinking that sometimes it's hard 7 for you to step back and take a look at a body 8 objectively when you're hearing so many -- you get so 9 much information about the history of -- of the bodies 10 that you're examining. 11 And, in particular, Dr. Milroy, in the -- 12 in the ones that you've examined, and especially -- and 13 I'm going to deal with the Jenna case -- you've indicated 14 that -- and it was up yesterday on the screen -- that Dr. 15 Smith was aware that there was CAS involvement, and that 16 there was troubles at home and there was some narcotic 17 use. 18 And have you seen and -- and is a general 19 theme that comes into -- as a history, in your 20 experience? 21 DR. CHRISTOPHER MILROY: It is. I mean, 22 I have to say, when my police officers come and brief me 23 about -- before conducting a post-mortem examination on a 24 child, they will -- I will -- I will almost always ask, 25 Was the child on the At Risk Register or not? And
421 sometimes the police will say, Well, yes, they were, but 2 it was more to do with, you know, neglect rather than any 3 worry about physical abuse. And you, as the pathologist, 4 have to -- it just informs you sometimes why you're doing 5 the examination. 6 But it should not cloud your judgment as 7 to what are the physical findings in the case. The 8 physical finding in children -- of people who use -- 9 misuse drugs; children die of cot death, -- crib death -- 10 as much as children of middle-class families. 11 Indeed, there's some evidence that they 12 more often die of crib death if you are from a less well- 13 off background, so the fact that people have, if you 14 like, a background that doesn't always appeal to the 15 family values, it doesn't mean that they -- you aren't 16 dealing with a straightforward natural death and, 17 therefore, you must look objectively at the facts. 18 MR. JIM HAURANEY: But, in reality in 19 practice, how difficult is that for pathologists to be 20 seeing this on a number of cases over a number of years? 21 DR. CHRISTOPHER MILROY: I don't think it 22 is difficult, frankly, as long as you -- you maintain 23 your objectivity. I mean forensic pathology is all about 24 the dealing with the more unpleasant aspects of society, 25 and I mean, you know, people are -- we deal with -- we
431 deal with things that is at the -- the worst end of 2 society; we deal with the most horrific murders, the most 3 horrific child abuse. 4 We equally deal with tragic situations of 5 people losing their -- their loved ones at -- from 6 natural causes, from accidents, and the bottom line is 7 you just maintain your objectivity, and I don't see that 8 as a problem. 9 I -- if you're properly trained and you're 10 -- you're in a proper environment where you have 11 discussion with colleagues and so on and so forth, that's 12 -- that's what maintains your values in -- in terms of 13 forensic pathology. 14 MR. JIM HAURANEY: Well, can I take you 15 then to the Jenna case in your overview report, I believe 16 PFP144684, Mr. Registrar. I'm not sure of your volume; I 17 think it's Volume I. 18 DR. CHRISTOPHER MILROY: Okay, I'll wait 19 for it on the screen, so... 20 MR. JIM HAURANEY: Page 15. Now, to 21 premise this, Dr. Milroy, you indicated the other day 22 that Dr. Smith, initially, got it right - I believe were 23 your word - that the timing of the injury was within six 24 (6) to seven (7) hours, or very shortly -- 25 DR. CHRISTOPHER MILROY: Well, he said a
441 few hours I think was the -- 2 MR. JIM HAURANEY: Okay -- 3 DR. CHRISTOPHER MILROY: -- or words to 4 that effect. It was -- it wasn't a specific number, but 5 it was a short num -- it meant a limited number. 6 MR. JIM HAURANEY: And I asked you 7 yesterday, with respect to pathology, that the pathology 8 itself had not changed from that time until the time that 9 he testified. 10 DR. CHRISTOPHER MILROY: That's correct. 11 MR. JIM HAURANEY: All right. But 12 however, somewhere in the interim, between the time that 13 he got it right, that it was -- he was aware that the inc 14 -- fatal injury was within a few hours. 15 What in the pathology, if anything, would 16 have extended that time to twenty-four (24) hours? 17 DR. CHRISTOPHER MILROY: Well -- 18 MR. JIM HAURANEY: Was there anything? 19 DR. CHRISTOPHER MILROY: There was 20 nothing in the pathology that would allow you to extend 21 that time. 22 MR. JIM HAURANEY: From your examination 23 of the pathology, was there any reason why there -- 24 perhaps that's not the right question -- was there reason 25 how that time got extended?
451 DR. CHRISTOPHER MILROY: Well, there's 2 nothing in the pathology that accounts for why the time 3 was expanded. 4 MR. JIM HAURANEY: Would it then, 5 therefore, come from outside issues, perhaps such as 6 history or other matters that accompany...? 7 DR. CHRISTOPHER MILROY: I -- I -- I 8 can't answer that question. 9 MR. JIM HAURANEY: You can't an -- all 10 right. I'd like to turn to the -- to the Tyrell case, 11 PFP144019, Mr. Registrar, Volume I, Tab 38, I guess, 12 paragraph 177. I'm sorry, I didn't write down the page, 13 but it's paragraph 177, if you could -- 14 MR. MARK SANDLER: Page 83. 15 16 CONTINUED BY MR. JIM HAURANEY: 17 MR. JIM HAURANEY: 83, thank you. 83. 18 And subparagraph B, Dr. Milroy, Dr. Smith stated the 19 following, with respect, to the timing of Tyrell's 20 injury. And in paragraph B: 21 "Although a period of time can pass 22 between a lethal injury and the 23 requirement of medical intervention, a 24 child who had suffered a lethal injury 25 would no longer be normal during that
461 time; the child would not be playing, 2 eating, or talking normally. After 3 lethal injury, the child could be 4 irritable, sleepy, or cranky, and at 5 some point there would be a major 6 change in behaviour which is alarming." 7 Page 2. So Dr. Smith then was aware of 8 the manifestations of such an injury for blunt trauma to 9 a -- to a child, correct? 10 DR. CHRISTOPHER MILROY: Well, in this 11 case, I mean, he certainly is aware -- if you want to put 12 it this way -- that in -- in a generic sense that there 13 can be a change in the child's behaviour conduct. 14 But the Tyrell Case, of course, he's 15 referring to a head injury, not an abdominal injury. But 16 having said that, the same does apply to an abdominal 17 injury. This child's behaviour would have changed has -- 18 has been, I think, heard from the -- what the surgeon 19 said about it. 20 MR. JIM HAURANEY: And so I come back to 21 the pathology. The pathology hasn't changed. So that 22 child, within that few hours, would have demonstrated not 23 being normal, not eating, not happy? 24 DR. CHRISTOPHER MILROY: Jenna would have 25 been symptomatic --
471 MR. JIM HAURANEY: In great pain? 2 DR. CHRISTOPHER MILROY: -- from the 3 moment that the injury was inflicted. 4 MR. JIM HAURANEY: All right. And just 5 one (1) last issue. If I could go to page 82, Mr. 6 Registrar. And I come back to the -- the issue of what I 7 called social profiling, and that may not be a correct 8 term, but paragraph 181, please. 9 Page 82, 181...82. 10 MR. MARK SANDLER: Page 85. 11 MR. JIM HAURANEY: I'm sorry, 85. 12 13 CONTINUED BY MR. JIM HAURANEY: 14 MR. JIM HAURANEY: Paragraph 181. All 15 right. Now we've heard this before, with respect to Dr. 16 Smith's testimony -- I don't have the right one. I have 17 -- perhaps mine's a little different, I'm sorry. 18 Can you go to the next page, please? Here 19 we are. Paragraph B: 20 "Blunt force injuries, head or 21 abdominal, were much more likely be 22 inflicted by a man then woman." 23 Now we -- we've heard that, and that was 24 brought up yesterday. And is that an appropriate 25 statement to make, Dr. Milroy?
481 DR. CHRISTOPHER MILROY: I -- no, I don't 2 -- it isn't an appropriate statement to make, because the 3 fact that it -- it may be true in research purposes, but 4 I don't think that that should be stated in any 5 individual case. 6 That's the point. It may be correct if 7 you look at -- if you do a research project, you will 8 find that most people who kill, whether they are -- 9 whether the victim is a child or the victim is an adult, 10 homicide is -- is traditionally carried out by men. 11 But it doesn't mean that women can't kill. 12 It just means they don't do it as often statistically. 13 But of course it doesn't -- that's not relevant to an 14 individual case. 15 MR. JIM HAURANEY: Does that bring the 16 "dirty thinking" into play here? 17 DR. CHRISTOPHER MILROY: I guess it 18 could, yes. As I say, I think that the concept of "dirty 19 thinking" has been abandoned, I hope, in -- in the UK, 20 and I understand that it's not the approach that Dr. 21 Pollanen and his office have now. 22 MR. JIM HAURANEY: Have now. And, Dr. 23 Crane, we know of your theories on this. But I'd like to 24 speak to, Dr. Butt. I haven't heard you with respect to 25 the aspect of "dirty thinking" when doing an autopsy.
491 Has that played into -- into your mind? 2 DR. JOHN BUTT: It's a poor way to 3 express an index of suspicion, I think. It -- because it 4 is reasonable to have a sense of the suspicious 5 throughout. I mean, forensic pathology wouldn't be 6 anything without that sense, but that's an individual 7 thing, and I think that's been pointed out. 8 It has -- it should have nothing to do 9 with the culture. And when you use words of that sort -- 10 if that's the phrase, "think dirty" -- it is almost an 11 intrusion into one's objectivity really, because it's got 12 such a strong context. 13 And it's dangerous, I think, to have that 14 attitude in an office. 15 MR. JIM HAURANEY: Mr. Commissioner, 16 those are my questions. 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 18 Hauraney. 19 Just a last question. My understanding, 20 and I think we've been told this, is that Lady Justice 21 Smith and her report on the Shipman Inquest commented on 22 'think dirty.' 23 Do either of you have any knowledge about 24 that or any opinion about it, yourselves, or is that...? 25 DR. CHRISTOPHER MILROY: I can't remember
501 the specific context, of course. Dr. Shipman was a 2 different -- slightly different issue in that people -- 3 he was a man getting away with -- literally getting away 4 with murder, but I can't remember the context in which 5 Lady Justice Smith referred to 'think dirty' in those 6 context. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 DR. CHRISTOPHER MILROY: I don't know if 9 Dr. Crane has any comments. 10 DR. JACK CRANE: No, I can't -- I mean, I 11 -- I would agree -- 12 COMMISSIONER STEPHEN GOUDGE: I guess 13 what I wondered about in light of it was, given the 14 context of the Shipman Inquiry, which you have just 15 described, Dr. Milroy, has there been any sense in 16 England following the Shipman Inquiry that one should 17 introduce the notion of 'think dirty' in order to prevent 18 the kind of travesty that Dr. Shipman inflicted? 19 DR. CHRISTOPHER MILROY: I think that I 20 almost don't like to call him doctor anymore. It's -- he 21 was struck off, of course, but the -- well, 22 interestingly, what's come out of the Shi -- the Shipman 23 Inquiries -- it's interesting. We did get a slight 24 increase in the number of referrals of elderly people, 25 but it didn't seem to -- it didn't seem to have any
511 rationality to it. 2 I think that forensic pathologists, as Dr. 3 Butt said, that when you approach an autopsy, one (1) of 4 the questions you are asking yourself is why is -- is 5 there any grounds for saying this might be a homicide 6 because that's part of your job. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. CHRISTOPHER MILROY: But I -- the way 9 I took the 'think dirty' was in almost to say, this is a 10 homicide until I prove otherwise, which is the wrong 11 approach. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. CHRISTOPHER MILROY: One (1) of the 14 approaches, have I ex -- have I -- have I excluded 15 homicide to -- to a reasonable degree is a slightly 16 different one and it's -- it's -- for example, you know, 17 have you done the correct dissections, have you -- 18 COMMISSIONER STEPHEN GOUDGE: Right, 19 okay. 20 DR. CHRISTOPHER MILROY: -- have you -- 21 and those sorts of things. It's the way that the, if you 22 like, -- 23 COMMISSIONER STEPHEN GOUDGE: Yes, you 24 have both been very clear about the objectivity that you 25 think is a matter -- is fundamental to appropriate
521 science. 2 I was really curious about whether the 3 Shipman Inquiry has had any colouration of principle of 4 objectivity because of the circumstances from which it 5 originated. 6 DR. CHRISTOPHER MILROY: And that's -- I 7 don't think the Shipman Inquiry has impacted on forensic 8 pathology at all. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 DR. CHRISTOPHER MILROY: I mean, 'cause 11 one (1) of the points is that Shipman avoided, he 12 circumvented the medical-legal system. He was getting 13 his cases sent for cremation and signed up, they weren't 14 coming into the coroner system. 15 Although, I don't think the coroner system 16 would have quickly picked them up the way we do our 17 cases, but I would say that if I -- and I say that for 18 myself, if I had one (1) of his cases, unless you're 19 doing routine toxicology on cases, which some juris -- 20 jurisdictions do do it, I believe, in fact, it's done 21 here, then you would have picked him up. 22 But we wouldn't -- we might struggle to 23 pick up another Shipman in some respects. 24 COMMISSIONER STEPHEN GOUDGE: Yes. And I 25 take it, Dr. Crane you would concur with that? It seems
531 to have had no impact on the practice of forensic 2 pathology? 3 DR. JACK CRANE: That's correct. I mean, 4 I think, as Dr. Butt said, it is right in certain 5 circumstances to be suspicious and certainly you may get 6 information about the specifics of a case that might 7 raise your index for suspicion, but that's not to say 8 that you go in thinking that this is homicide until I can 9 prove it otherwise. 10 COMMISSIONER STEPHEN GOUDGE: Okay, 11 thanks. Dr. Butt, anything you want to say? We have 12 dealt pretty thoroughly with the methodology -- 13 DR. JOHN BUTT: I agree. The -- the only 14 thing that I would point out, Commissioner, is that often 15 the phrase is 'a healthy index of suspicion;' that's a 16 long way from a phrase that says 'think dirty.' 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 Thank you. Okay. Mr. Sokolov...? 19 MR. LOUIS SOKOLOV: Thank you, sir. 20 Commissioner, I believe I will have until 10:42. 21 COMMISSIONER STEPHEN GOUDGE: It is when 22 the alarm goes off, Mr. Sokolov. 23 24 CROSS-EXAMINATION BY MR. LOUIS SOKOLOV: 25 MR. LOUIS SOKOLOV: Good morning,
541 gentlemen, my name is Louis Sokolov, and I'm here on 2 behalf of the Association in Defence of the Wrongly 3 Convicted, AIDWYC. As you may know, AIDWYC's concern is 4 identifying and correcting miscarriages of justice. 5 I want to begin by returning to an area 6 that Mr. Lockyer covered yester -- yesterday, and Mr. 7 Carter on behalf of the Hospital for Sick Children asked 8 you about, as well. And that's whether it would be 9 prudent to conduct a comprehensive review involving all 10 pediatric death cases resulting in convictions in Ontario 11 over the relevant period. 12 And if I can first ask you, Dr. Butt, just 13 to clarify, when we were trying to determine the scope of 14 -- of this issue, you estimated that there were between 15 ten (10) and twenty (20) cases per year that we would be 16 talking about. 17 Is that correct? 18 DR. JOHN BUTT: I think that's correct, 19 yes. 20 MR. LOUIS SOKOLOV: And as I'm sure 21 you're aware, there's been approximately forty-five (45) 22 cases that have already been reviewed. 23 DR. JOHN BUTT: That's correct: 24 MR. LOUIS SOKOLOV: All right. And of 25 that ten (10) or twenty (20) cases per year of criminally
551 suspicious deaths of children, presumably a smaller 2 number of those persons were charged and convicted. 3 DR. JOHN BUTT: Yes. 4 MR. LOUIS SOKOLOV: So, the scope of a 5 further review, then, over a ten (10) year period is 6 likely to be not much larger -- not significantly larger 7 than the process that you three (3) were involved in. 8 Is that -- is that fair? 9 DR. JOHN BUTT: That -- that would be 10 about right, yes. 11 MR. LOUIS SOKOLOV: Now, let me try and 12 summarize the -- the findings that the three (3) of you 13 had with respect to Dr. Smith's failings, if I put -- may 14 put it that way. 15 Mr. Carter summarized them yesterday as 16 failings in the way that he had communicated in his 17 written reports, in his testimony and you, Dr. Crane, 18 added that you found that there were fundamental errors 19 with respect to basic forensic pathology that he made. 20 DR. JACK CRANE: That's correct. 21 MR. LOUIS SOKOLOV: And would the three 22 (3) of you agree -- and I'll go from on my left to right, 23 starting with Dr. Milroy, that that would summarize, in - 24 - in a very brief fashion, your -- your findings of Dr. 25 Smith's failings.
561 DR. CHRISTOPHER MILROY: That's correct. 2 MR. LOUIS SOKOLOV: And Dr. Crane...? 3 DR. JACK CRANE: Yes, that's right. 4 MR. LOUIS SOKOLOV: Dr. Butt...? 5 DR. JOHN BUTT: Yes. 6 MR. LOUIS SOKOLOV: Mr. Carter had also 7 asked you about your knowledge -- or rather, your lack of 8 knowledge of other people working under Dr. Smith in his 9 unit or, indeed, other people working elsewhere in the 10 Province of Ontario. 11 And you fairly said that your review 12 didn't include other persons, correct? 13 DR. JOHN BUTT: That was said. There 14 were, of course, a couple of pathologists' reports that 15 we did review since Dr. Smith was the consultant. 16 MR. LOUIS SOKOLOV: Yes. And given what 17 you saw there, and given your understanding of Dr. 18 Smith's role as Director of that Unit and as something of 19 an "icon" - to use the terminology of yesterday -- of -- 20 of forensic pathology in Ontario - do you have -- can you 21 have any confidence that the failings that you identified 22 with Dr. Smith would, clearly, not be present with 23 respect to the other people who were working under him? 24 Dr. Butt...? 25 DR. JOHN BUTT: It's -- I mean, it's
571 guilt by association, somewhat, for lack of another 2 phrase, and I'm a little reluctant to go down there. But 3 I -- but, as I said yesterday, I think the perception of 4 the service, in general, is an important issue here. 5 MR. LOUIS SOKOLOV: Yeah, I -- I don't 6 mean to suggest - and forgive me for interrupting - guilt 7 by association. And I specifically used the word 8 "concern." 9 DR. JOHN BUTT: Yes. Well, I think it's 10 reasonable to -- to have a concern under the 11 circumstances. 12 MR. LOUIS SOKOLOV: And Dr. Crane as 13 well? 14 DR. JACK CRANE: Yes, I mean, I have no 15 knowledge or information as to whether the other 16 pathologists working in the Unit -- the standard of the 17 work or whether there's any difficulties. I just don't 18 know. 19 MR. LOUIS SOKOLOV: And Dr. Milroy...? 20 DR. CHRISTOPHER MILROY: Well, I would 21 just -- just echo those, I mean, I -- I think that -- I 22 mean, the concern that I have, for example, in the Valin 23 case was that the first post-mortem examination set in 24 chain a motion and that -- that person didn't appear to 25 have a great experience of looking at pediatric deaths
581 so. 2 But I have no -- I have no specific 3 knowledge and neither am I aware that any cases have come 4 out from other practitioners other than Dr. Smith. But, 5 obviously, we -- we've made the point that Dr. Smith 6 wasn't always the first pathologist involved. 7 MR. LOUIS SOKOLOV: And, so, I take it 8 the three (3) of you would agree that it would be prudent 9 and, indeed, necessary to do a comprehensive review of 10 the other cases as well. 11 Dr. Butt...? 12 DR. JOHN BUTT: I think it's a prudent 13 thing to do. 14 MR. LOUIS SOKOLOV: And Dr. Milroy...? 15 DR. CHRISTOPHER MILROY: I -- I think 16 there's a case to argue that, yes. 17 MR. LOUIS SOKOLOV: Dr. Crane...? 18 DR. JACK CRANE: Well, I'm just reticent 19 to say yes. But I -- I don't know a -- but, if that's a 20 way of improving public confidence in the Unit and in 21 pediatric pathology, then that might be a -- a reasonable 22 step to take. 23 DR. CHRISTOPHER MILROY: I've just got to 24 add, though, I'm aware of the strains that this Inquiry 25 has put upon the Forensic Pathology Unit, the Office of
591 the Chief Coroner. 2 It -- Dr. Pollanen has done an enormous 3 amount of work, and one (1) cannot burden him and his 4 office -- you know, you've had five (5) international 5 forensic pathologists coming over here for several weeks. 6 It's not just several weeks, it is a very labour 7 intensive, resource intensive thing to do, and that's got 8 to be considered in any subsequent piece of work. 9 MR. LOUIS SOKOLOV: Thank you. 10 DR. CHRISTOPHER MILROY: 'Cause I don't 11 think that Dr. Pollanen could -- can do much more. He's 12 -- he really has done an extraordinary amount of work at 13 -- at -- for the good; that -- you know, you've got to 14 bear that in mind. 15 MR. LOUIS SOKOLOV: That -- that any 16 further review will require sufficient resources -- 17 DR. CHRISTOPHER MILROY: Absolutely. 18 MR. LOUIS SOKOLOV: Let me turn briefly 19 to another area, and this involves the -- let me first 20 ask you, Dr. Milroy. 21 You discussed yesterday that your office 22 will work for both the defence -- or either the defence 23 or the prosecution in a particular case? 24 DR. CHRISTOPHER MILROY: We are available 25 to be called depending on who asks us. I mean, I just
601 limit my homicide work to my police force areas for the 2 prosecution, but I -- I will give opinions outside that 3 area for both the Crown, for the police, and for defence. 4 MR. LOUIS SOKOLOV: And would I be 5 correct that you see your role in taking that even-handed 6 role as serving the administration of justice rather then 7 one (1) side or the other? 8 DR. CHRISTOPHER MILROY: I think there 9 are two (2) points: One (1) is that absolutely that the 10 duty of a pathologist is to serve -- to be a neutral 11 witness for the court. 12 And the second thing, I think genuinely, 13 is if you do both prosecution and defence work, you see 14 both sides and your objectivity, I think, increases. 15 The concern in specialists, and we saw 16 this in -- we seen this in the UK, is people who only 17 ever appear for the prosecution; who only ever appear for 18 the defence because you become jaundice to -- you can 19 become, so you do, you can become jaundice to those 20 sides. 21 MR. LOUIS SOKOLOV: And do you consider 22 it, in ethical terms, working for either side, or is 23 it... 24 DR. CHRISTOPHER MILROY: I believe that 25 the defence has a right to equality of arms in our
611 adversarial system. 2 MR. LOUIS SOKOLOV: Let me then turn to 3 the issue of the Criminal Cases Review Commission in -- 4 in the United Kingdom. 5 And, Dr. Crane, you gave some evidence 6 yesterday about doing work for the CCRC? 7 DR. JACK CRANE: That's correct. 8 MR. LOUIS SOKOLOV: And when the CCRC 9 asks you to do a review, I take it it's not mandatary 10 that you assist them, that's something that you volunteer 11 to do? 12 DR. JACK CRANE: That's right. They just 13 ask whether they will engage or not. 14 MR. LOUIS SOKOLOV: And do you consider 15 it to be your professional or, indeed, your ethical 16 obligation to assist them when you're asked? 17 DR. JACK CRANE: Yes, I do. I mean, I 18 support Professor Milroy. I think it's important to a) 19 to do both prosecution work and defence work, because I 20 think it does -- it not only increases your own 21 objectivity in cases but I think the perception of others 22 is that -- that you're objective, and you're not simply 23 always for the Crown or always for the prosecution. 24 MR. LOUIS SOKOLOV: Now the CCRC work 25 isn't -- isn't the -- isn't defence work in the classical
621 sense -- 2 DR. JACK CRANE: No, it's not. 3 MR. LOUIS SOKOLOV: -- it's -- it's post- 4 conviction work? 5 DR. JACK CRANE: That's right. 6 MR. LOUIS SOKOLOV: Do you consider it 7 your professional or ethical obligation to assist in 8 post-conviction review work? 9 DR. JACK CRANE: Yes, I have no 10 difficulty in doing that at all. 11 MR. LOUIS SOKOLOV: Now, in -- in Canada, 12 as you're aware, we don't have a CCRC and that the review 13 of cases is often, at least initially, at the initiation 14 of a lawyer. 15 And we heard some evidence last week from 16 -- from last week's panel that the Ontario Chief 17 Coroner's Office when faced with requests for review of 18 post-conviction cases will only entertain such requests 19 at the instance of the Crown rather than from the 20 defence. 21 Do you have any view of -- of whether or 22 not the Ontario Chief Coroner's Office should entertain 23 bonafide requests from the defence for post-conviction 24 review work? 25 DR. JACK CRANE: I don't know whether I
631 can comment on whether they should do it or not. I mean, 2 I think that's obviously an internal, and if you like, 3 sort of political issue with -- political with a small 4 'p'. 5 But I certainly think that the defence 6 should have every opportunity to -- in -- in post- 7 conviction cases to have a case reviewed. I think they 8 should have an opportunity to be able to engage an expert 9 to -- to review material. 10 MR. LOUIS SOKOLOV: Dr. Butt, can I ask 11 you the same question with respect to the Ontario Chief 12 Coroner's office, whether you're of the view that they 13 should entertain bonafide requests from defence counsel? 14 DR. JOHN BUTT: I think it's a reasonable 15 thing to do. 16 DR. CHRISTOPHER MILROY: Can I just say 17 that -- just to make it clear, whilst -- I think we all 18 do pro bono work, CCRC work is resourced, as the defence 19 work typically is paid for. 20 MR. LOUIS SOKOLOV: Yes. 21 DR. CHRISTOPHER MILROY: And that 22 obviously a resource issue that's got to be addressed. 23 MR. LOUIS SOKOLOV: Thank you. The -- 24 the last area in my two (2) minutes and forty-five (45) 25 seconds that I'll take you to is, is that a peer review,
641 and you all testified that peer review is an important 2 means of ensuring the quality of reports, correct? 3 DR. JOHN BUTT: Yes. 4 DR. JACK CRANE: Yes. 5 DR. CHRISTOPHER MILROY: Yes. 6 MR. LOUIS SOKOLOV: Let me ask you then 7 about peer review of testimony. As I understand your 8 evidence that, Dr. Milroy and Dr. Crane, pathologists in 9 your office regularly attend testimony of others, but 10 more of -- more on an ad hoc basis, is that fair? 11 DR. CHRISTOPHER MILROY: It's -- it's an 12 ad hoc basis. It's more when they're training, yes. 13 MR. LOUIS SOKOLOV: Yeah, so there -- 14 there's no formal peer review of expert testimony. 15 DR. CHRISTOPHER MILROY: No. But one (1) 16 thing that isn't -- that we often have a defence 17 pathologist present and I often listen to other -- the 18 other side, so to speak, give their evidence, so, we do 19 have quite regular exposure to each other giving 20 evidence. 21 MR. LOUIS SOKOLOV: So you have that 22 level of check, as it were. 23 DR. CHRISTOPHER MILROY: We sort of have 24 that. And we feed the lawyers quite regularly with 25 questions and so we have that sort of informal level of
651 check. 2 MR. LOUIS SOKOLOV: Now, given what we've 3 learned about Dr. Smith's testimony in Court and the 4 failings in that regard, do you have any comment of 5 whether some comprehensive peer review of testimony of 6 forensic pathologists in Ontario would be prudent? 7 And I'll start with you, Dr. Milroy. 8 DR. CHRISTOPHER MILROY: It's -- well, 9 it's an interesting question. It's not something that we 10 do formally in -- in -- in England and Wales. Professor 11 Crane may be able to speak to whether we've considered it 12 or not because he sits on that -- that committee. 13 I think that, certainly, it's something 14 that can be considered, whether it's -- how easy to 15 achieve it is, I'm not sure. 16 MR. LOUIS SOKOLOV: Dr. Crane...? 17 DR. JACK CRANE: Yes, I mean it's 18 something that we have been looking at. We audit reports 19 but how -- how do you audit testimony that someone's 20 given. 21 One (1) thing I would say is that in 22 reviewing cases, either -- particularly post-conviction 23 cases, I think what's important to review is not just the 24 report, and the photographs, and the slides, and so 25 forth, I think reviewing the testimony can be very
661 important and can be very enlightening because, as we saw 2 in some of the cases, what the report says and what the 3 testimony say may -- may be different and, therefore, I 4 think review of testimony is very important. 5 MR. LOUIS SOKOLOV: And Dr. Butt...? 6 DR. JOHN BUTT: Well, Professor Crane hid 7 a little remark in there that I agree with; how do you 8 audit what was said? And it -- so it's complicated and 9 you know the Court has a system for a start and the 10 system involves a judge and two (2) well-trained lawyers, 11 hopefully, and therein begins the audit and -- of what 12 was said by the pathologist. 13 Now, I'm not saying that a -- that all 14 three (3) of these people need to be trained extensively, 15 but I do think that there should be training programs for 16 the judiciary, dare I say, and for the criminal defence 17 bar in matters like this in -- particularly in the extent 18 of opinion evidence that can be developed from common 19 observations through a set of standard autopsy 20 situations; child abuse, death by taser. 21 COMMISSIONER STEPHEN GOUDGE: Just to 22 pull something out of the air. 23 DR. CHRISTOPHER MILROY: It's a shunting 24 example. 25 DR. JOHN BUTT: But you understand what
671 I'm saying. 2 3 CONTINUED BY MR. LOUIS SOKOLOV: 4 MR. LOUIS SOKOLOV: Yes. 5 DR. JOHN BUTT: And I -- and I -- and I 6 mean to choose the forensic situation because of a 7 current dilemma is to -- is not to say, well, that 8 opinion evidence and mechanical engineering is any more 9 or less sound than opinions in forensic pathology. And 10 that's my point. 11 MR. LOUIS SOKOLOV: So if -- if I may 12 just ask one (1) more question, Mr. Commissioner? 13 COMMISSIONER STEPHEN GOUDGE: Sure. 14 15 CONTINUED BY MR. LOUIS SOKOLOV: 16 MR. LOUIS SOKOLOV: So may I summarize 17 the position that you just took as saying that you -- you 18 believe that a certain level of scientific literacy or 19 competence is necessary on the part of the defence 20 counsel in order to adequately fulfill their function in 21 cases like this? 22 DR. JOHN BUTT: I wouldn't limit it to 23 the defence counsel, but including the defence counsel, 24 and at the same time, you know, the point was made 25 yesterday, I believe, that the need to employ experts in
681 many fields, not just forensic pathology, must be faced 2 by the court often. 3 Now, this isn't a lecture, I mean, it's a 4 -- that's a question. It must be faced by the court as a 5 dilemma, and in turns of the resources that are available 6 including what is paid through public defence 7 legislation, this has to be a huge problem. 8 And when situations develop where these 9 funds are reduced, then you wonder what way one is going 10 in these things. You know, I -- I'm aware of this 11 because I do a lot of this type of work, and -- any may I 12 say that in the United States, where I do a substantial 13 amount of work, funds for these sorts of activities are - 14 - seem to be provided with less concern and with greater 15 generosity than they are in this country where sometimes 16 the fees are so stingy that one doesn't want to look at 17 the matter because it hardly supports the expenses of the 18 office. 19 That is a lecture, now, but my -- this is 20 a -- this is a concern. And when was -- when one doesn't 21 have this, just to conclude the point, to bring balance 22 then all the things that we've talked about like giving 23 people rope on the stand, so that they just run 24 untethered with a -- with a style and with -- with 25 quote/unquote "facts," how are you going to leash it if
691 you don't do these things? 2 You know, education of people and bringing 3 balance into the room by having experts who can say, 4 well, this is true or this is not true. So that's... 5 DR. CHRISTOPHER MILROY: I was just going 6 to say that defence counsel or -- and prosecution counsel 7 have told me, on many occasions, the dramatic effect that 8 putting in opposing expert in court has on the behaviour 9 of the witness in the box that -- you know, I've heard -- 10 you know, until you came along he -- he was going to say 11 X, and then when you just sat in the court, he knew that 12 he couldn't say that because it wasn't based on proper 13 basis. And it tempers people's behaviour in courts. 14 MR. LOUIS SOKOLOV: Thank you. 15 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 16 Sokolov. 17 MR. MARK SANDLER: Commissioner, I can 18 indicate that CPSO has advised me that they have no 19 questions. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 21 Sandler. Okay. So we would move next to ALST and Mr. 22 Falconer -- 23 MR. MARK SANDLER: Well, no -- 24 COMMISSIONER STEPHEN GOUDGE: Oh, sorry, 25 I guess, I jumped over you, Mr. Manishen, --
701 MR. JEFFREY MANISHEN: Thank you. 2 COMMISSIONER STEPHEN GOUDGE: -- CLA. 3 While Mr. Manishen is coming up, Dr. Crane, can I ask you 4 a question, sort of a detailed question about the CCRC 5 and your work for them. Mr. Lockyer took you yesterday 6 to the statutory threshold for the CCRA referring a case 7 after considering it. 8 You get retained by the CCRA in the course 9 of their coming to a decision about whether there is a 10 meeting of the threshold in a particular case, as I 11 understand it? 12 DR. JACK CRANE: Well, obviously, when a 13 case is referred to them, if they think that there's 14 merit in looking at it, it's usually at that point then. 15 COMMISSIONER STEPHEN GOUDGE: Yes, 16 exactly. And what I was getting at was: Do you know 17 what kind of threshold they use in order to say, in your 18 terms, there is merit in the case sufficient that we need 19 to get an opinion from somebody like Dr. Crane? 20 That is, there is obviously a threshold 21 that they have to be satisfied about -- 22 DR. JACK CRANE: Presumably, if -- if 23 they -- they think that there is some evidence that there 24 -- there may have been a -- a miscarriage of justice. I 25 mean, that's very vague, but it --
711 COMMISSIONER STEPHEN GOUDGE: And you may 2 not know. All you know is you get a letter from them -- 3 DR. JACK CRANE: Yes. 4 COMMISSIONER STEPHEN GOUDGE: -- saying 5 would you please provide an opinion. And I was just 6 flipping through the statute as you were -- 7 DR. CHRISTOPHER MILROY: I don't -- I 8 don't know what they -- thought afterwards. 9 COMMISSIONER STEPHEN GOUDGE: But there's 10 obviously got to be some level at which they say, This is 11 a legitimate concern we have and to know whether we can 12 meet the statutory threshold, we need an opinion. 13 DR. JACK CRANE: Yes. 14 COMMISSIONER STEPHEN GOUDGE: Okay, 15 thanks. Okay, Mr. Manischen...? 16 17 CROSS-EXAMINATION BY MR. JEFFREY MANISCHEN: 18 MR. JEFFREY MANISCHEN: Thank you. 19 Gentlemen, I'm here on behalf of the crim -- Ontario 20 Criminal Lawyers' Association, and the questions I have, 21 actually, pick up from the last series of answers dealing 22 with issues of resources to the defence bar, so it will 23 segue perfectly. 24 But I'll start with a couple of issues. 25 When you have a matter that is clearly contentious such
721 as this, and I'll use the phrase where a cause of death 2 is characterised, as Dr. Smith did, as asphyxia, we've 3 seen in the -- the overview reports that there are text 4 references available that might challenge the basis for 5 that view. 6 I believe, Professor Milroy, you referred 7 to one (1), Dr. Adelson's 1974 text -- 8 DR. CHRISTOPHER MILROY: That's correct. 9 MR. JEFFREY MANISCHEN: -- pathol -- 10 Pathology of Homicide. 11 DR. CHRISTOPHER MILROY: Yes. 12 MR. JEFFREY MANISCHEN: And that's one 13 (1) that you indicated -- I think that's the one (1) that 14 used the phrase "the obsolete quintet". 15 DR. CHRISTOPHER MILROY: That's correct. 16 MR. JEFFREY MANISCHEN: And the obsolete 17 quintet was the phrase used to characterize misperception 18 of features such as petechial hemorrhages in the lungs as 19 being indicators of asphyxia when they are really 20 equivocal or nonspecific. 21 DR. CHRISTOPHER MILROY: That's correct. 22 MR. JEFFREY MANISCHEN: Now that sort of 23 text, the 1974 text, would be available in a forensic 24 pathology laboratory library. 25 DR. CHRISTOPHER MILROY: Yes, and in fact
731 in the -- one (1) of the things -- the Code of Practice 2 that we have is you are duty-bound to keep up with the 3 literature. 4 MR. JEFFREY MANISCHEN: And so from the 5 standpoint of the availability of that resource for a 6 Canadian forensic pathologist, such as Dr. Smith, Dr. 7 Butt, that would be available? 8 DR. JOHN BUTT: Yes, it -- it would be. 9 In fact, that volume was available in the Chief Coroner's 10 office when I went looking for it. 11 MR. JEFFREY MANISCHEN: So, from the 12 standpoint of the basis for examining an opinion such as 13 a cause of death as asphyxia, or challenging it or even 14 coming up with that opinion, that text is a good starting 15 point to be able to use to determine if there's 16 sufficient evidentially basis for an opinion on cause of 17 death, correct? 18 DR. CHRISTOPHER MILROY: Yes. I mean the 19 -- the -- there -- interesting enough I read the textbook 20 by Dr. Jaffe the other night and he, very specifically, 21 says in the first paragraph on asphyxia, just calling a 22 death asphyxia without further explanation is 23 unacceptable. 24 MR. JEFFREY MANISCHEN: And that's a text 25 that would have been available for how long, Professor
741 Milroy? 2 DR. CHRISTOPHER MILROY: Oh, well, it's 3 in -- the fourth edition was in 1999. 4 MR. JEFFREY MANISCHEN: All right. So 5 then it gets us to the next question of the difficulty in 6 determining the threshold -- and I think the Commissioner 7 asked questions about this -- that threshold level 8 between determining -- saying cause of death is 9 determined as distinct from undetermined. 10 There isn't really a bright line in that 11 regard, is there? 12 DR. CHRISTOPHER MILROY: No. 13 MR. JEFFREY MANISHEN: And so what you 14 need to do -- are there text references -- and again, my 15 questions will be for the panel generally -- text 16 references that can assist an expert in determining 17 what's enough to be able to say cause of death can be 18 determined as distinct from undetermined? 19 DR. CHRISTOPHER MILROY: Well, it's based 20 on literature and your own training and experience; I 21 don't think you can separate those out. I mean, a 22 textbook is -- a textbook is one (1) source. They're not 23 -- textbooks don't always agree, I sus -- you know, there 24 are textbooks that say Shaken Baby Syndrome is -- has the 25 following characteristics and there are textbooks, mostly
751 emerging, that say they don't have those characteristics, 2 so there -- there is a whole bizarre -- there's a variety 3 of sources that you use. 4 MR. JEFFREY MANISCHEN: Professor Crane, 5 will you comment on that on the issue of how one would 6 ever evaluate whether there's a sufficient evidentiary 7 basis to say cause of death could be determined as 8 distinct from leaving it undermined? 9 DR. JACK CRANE: Well, one (1) way, for 10 example, if we take the asphyxia analogy and if you find 11 the petechial hemorrhages on the thymus and the lungs and 12 so forth -- if you look at the textbooks to see what they 13 say on the presence of petechial hemorrhages, they will 14 say they are of no significance, they do not indicate 15 that death was due to asphyxia, so there you have the 16 evidence that you need. 17 And it's the same for any pathology 18 finding. If you're unsure of its significance, you go to 19 the literature to see whether there is any evidence that 20 might support that leaning towards being able to give an 21 opinion as to say cause of death. 22 MR. JEFFREY MANISHEN: What about the use 23 of the phrase "in the absence of some other explanation 24 to account for it" as a basis for a diagnosis or 25 determination of cause of death.
761 Dr. Butt, what would you say about that? 2 DR. JOHN BUTT: Well, that phrase was 3 used. It's -- I see it as a phrase that says, I'm going 4 to keep the door open, but when you use that sort of 5 phrase it begs further qualification. That's about all I 6 can say about it. I mean, I think it's a bad phrase to 7 use. 8 It sounds like you're not satisfied, but 9 that you're willing to take a leap of faith; that's the 10 way it reads to me. 11 MR. JEFFREY MANISCHEN: Or we could 12 characterize it; the absence of an alternative 13 explanation is in itself a positive finding of some 14 weight -- that wouldn't be the right way to treat it. 15 DR. JOHN BUTT: No, that's true. 16 MR. JEFFREY MANISHEN: With respect to 17 what's available to the defence, letĘs turn to that, and 18 I'll ask particularly for the comments of yourself, Dr. 19 Butt, practising within Canada. 20 We've heard from Professor Milroy that 21 pathologists are available to the defence on a full-time 22 or ongoing basis. 23 To your understanding, Dr. Butt, what's 24 available to the defence from the standpoint of access to 25 medical libraries and journals, publications of that
771 sort? 2 DR. JOHN BUTT: Well, you know, I can't - 3 - can't speak across Canada, but obviously there's a huge 4 amount of material available on the Internet, so, that is 5 available. 6 And there are libraries. For example, in 7 the office of the Chief Medical Examiner in Alberta, 8 which I'm familiar with, there was a library in both 9 offices, in Calgary and Edmonton. 10 But properly identified as a library, 11 where books were available to the -- to anybody that had 12 a legitimate reason to -- to borrow them. Like not 13 people, you know, who didn't have some interest. But 14 certainly to the lawyers, they were available. 15 MR. JEFFREY MANISHEN: But with respect 16 to matters such as peer review publications, I can say 17 that, at least within my own experience, it's been 18 difficult to be able to get access to those within the 19 medical profession or forensic profession. 20 They aren't generally available at large? 21 DR. CHRISTOPHER MILROY: They're 22 available on the Internet, but you do -- you do have to 23 pay for them. 24 MR. JEFFREY MANISHEN: That's one (1) -- 25 one (1) part of the process.
781 COMMISSIONER STEPHEN GOUDGE: By and 2 large you do, yes. 3 4 CONTINUED BY MR. JEFFREY MANISHEN: 5 MR. JEFFREY MANISHEN: If there was a 6 recommendation from the Commissioner to perhaps ensure 7 that the available medical research resources could be 8 provided or some access facilitated to the Defence Bar, 9 whether from the office of the coroner or even from 10 medical school libraries. 11 Materials are available frequently in 12 those locations? 13 DR. JACK CRANE: Well I'm smiling about 14 this, because what's wrong with the -- with the library 15 at the courthouse? You know, I mean there are -- 16 librarians are trained, and they -- one (1) of the -- one 17 (1) part of their training, if I may, because I happen to 18 be on the Library Committee of the College of Physicians 19 and Surgeons in BC. 20 And they're trained to access other 21 libraries for inter-library loans. And it -- so -- I 22 mean I see that as one (1) value to the thing. In terms 23 of people popping in casually and expecting to find 24 something there, that's probably a tall order where a law 25 library is concerned.
791 But I agree with what you're saying, but I 2 do think that some responsibility is -- is required in 3 other libraries, such as that one (1) finds in a 4 courthouse. 5 MR. JEFFREY MANISHEN: Sure, and the 6 issue there of course is resources what can be obtained 7 or purchased as distinct from connection with other 8 libraries. 9 DR. JACK CRANE: Yes. 10 DR. CHRISTOPHER MILROY: I have heard 11 lawyers buy textbooks of forensic pathology. 12 MR. JEFFREY MANISHEN: Well of course, in 13 fact the diffi -- difficulty is the available resources. 14 And if you have conflicting -- if you have conflicting 15 views from experts, do you need to get all of them? 16 DR. CHRISTOPHER MILROY: I agree. But -- 17 I mean, that would be flippant. I do think that there 18 are -- that this goes back to the question of educating 19 the bar. They -- they should underst -- if you're going 20 to do criminal defence work, criminal prosecution work 21 involving homicide, it's not bad to have -- to have some 22 knowledge of forensic pathology. 23 MR. JEFFREY MANISHEN: Absolutely, and 24 that then turns to the next issue I was going to ask 25 about, and it had -- has to do with issues of
801 availability of defence experts. LetĘs talk about that. 2 You indicated that there are difficulties, 3 in that they are few in number. Difficult with respect 4 to funds available to support them. I would ask you, Dr. 5 Butt, did you find it somewhat surprising that in so many 6 of the cases, Defence Counsel Ontario had to retain the 7 services of Dr. Ferris who was out in British Columbia, 8 or Dr. Jaffe who was long retired, there was a very short 9 list? 10 DR. JOHN BUTT: Yes. 11 MR. JEFFREY MANISHEN: And so from the 12 standpoint of Ontario having a wide scope of 13 pathologists, there are several throughout the province. 14 If there was a recommendation from the Commissioner that 15 any forensic pathologist in Ontario could and should be 16 available, whether funding through the Chief Coroner's 17 office or otherwise, for the defence to be able to 18 retain, would that be useful? 19 DR. JOHN BUTT: It's -- it's okay to make 20 that kind of a recommendation. I think it's a -- it's a 21 good recommendation, but there is some issues that would 22 go before that obviously. 23 I mean I don't want to get into the 24 structure of such a thing, but the forensic pathologist, 25 and I think this was said, has got to feel comfortable
811 about doing this. 2 And in terms of the culture of forensic 3 pathology, that implies a better understanding of -- as 4 has been said by somebody here, in the press, a better 5 understanding of his relationship with the Crown in order 6 to unleash the psychology that I have some advocacy which 7 is an awfully potent statement to make. 8 But when you work with the Crown all the 9 time, you know, you can get a situation that I think is 10 common. You say, well a forensic pathologist is 11 contacted by a defence lawyer on a case that he has, and 12 what might be one (1) of his first reactions? He works 13 for the government. One (1) of the first reactions is, 14 well maybe I better check this out with the Crown. Now 15 that does happen. 16 MR. JEFFREY MANISHEN: And in fact 17 further I was going to ask as it sometimes happens, that 18 then that expert is called upon to perhaps give an 19 adverse comment on the reputation of the defence expert. 20 Have you seen that or been familiar with 21 that as occurring? 22 DR. JOHN BUTT: That might be so, yes. 23 Yeah. 24 MR. JEFFREY MANISHEN: And that puts the 25 Crown, or at least the expert called by the Crown, in a
821 rather awkward position, because the commentary now isn't 2 only on the other's opinion, but the other's reputation. 3 DR. JOHN BUTT: Yes, that's true. 4 MR. JEFFREY MANISHEN: And does that not, 5 in turn -- and, again, this is a -- a phenomenon that may 6 happen in North America as distinct from the UK -- but 7 there's a form of libel chill where defence experts might 8 be reluctant to come forward for concern that their 9 reputation will be scrutinized and under attack by the 10 Government. 11 DR. JOHN BUTT: I -- I think that's 12 possible, but, you know, one does -- one doesn't know 13 whether that's going on or not. Of course -- 14 DR. CHRISTOPHER MILROY: I was just going 15 to -- one (1) of the reasons that there is a culture of 16 defence practised in England, is our Bar prosecutes and 17 defends. And that -- and -- and that's not called a 18 chain, but that means that we meet, sometimes, our 19 Queen's Counsel prosecuting, and they remember us and 20 then call us when we're defending. 21 And the other thing is that I -- when -- 22 if you are asked a culture -- please comment on the 23 qualities of the prosecution or defence expert -- I say, 24 No, I want to look at the evidence, not the witness. 25 And, indeed, there's a great saying, "If you can't attack
831 the evidence, attack the witness." Well, an expert 2 should resist that. 3 MR. JEFFREY MANISHEN: Certainly, and 4 from the standpoint of the mer -- merit or benefit of -- 5 of educational programming for Crown and defence, from 6 the forensic pathologists in the Province, clearly it's - 7 - there's a strong benefit to that? 8 DR. JOHN BUTT: Yes. 9 MR. JEFFREY MANISHEN: From the standpoint 10 of what the defence has as well, when we see it from time 11 to time in these cases, it has to do with problems in 12 relation to the availability of slides and other original 13 materials that might have been obtained in the original 14 post-mortem. 15 That's -- that can create a difficulty for 16 the defence expert to be able to pass an opinion without 17 getting to see slides, X-rays and so forth. 18 DR. JOHN BUTT: It is -- it is a problem, 19 but it's not insurmountable. I mean it basically is a 20 disclosure issue. So -- 21 MR. JEFFREY MANISHEN: And to some 22 extent, as well, let's say a control of what's available 23 or a regulation of what's on hand. 24 DR. JOHN BUTT: That's true, and I 25 suppose if you're going that direction, I mean, a
841 recommendation might be that a certain -- a certain 2 amount of material be preserved and available. I mean, 3 that's possible to make a recommendation. 4 MR. JEFFREY MANISHEN: And not only that, 5 I would suppose inventory maintained and one wouldn't 6 have to look to the good graces of pathologists to get 7 access to it. It could be some -- some central 8 repository of evidence could look after administering 9 disclosure in that regard? 10 DR. JOHN BUTT: That's -- and in terms of 11 -- I might say yesterday I made reference to the Milgaard 12 Commission; the last review in Saskatchewan, and one (1) 13 of the recommendations I made was about the storage of 14 materials safely. 15 Because we talked about this in terms of 16 the pathologist's office. And your point is well taken. 17 I agree with it in summary, and it is a problem. It is a 18 problem because some information is not available and the 19 informality of storing it in a -- in a pathologist's 20 office is a bad policy for certain material, as we've 21 heard. 22 MR. JEFFREY MANISHEN: And that's -- that 23 -- that was my point, exactly. Perhaps in the -- the 24 time remaining, one (1) other area -- we know that -- 25 that the defence frequently will have to look to his or
851 her expert for advice on the potential need to retain 2 other experts; neuropathologists or otherwise, or 3 whatever resources might be looked at. 4 But from the standpoint of the -- I'll 5 call it "the team", the "meeting of the minds", as it 6 were, of Crown and defence experts. 7 Professor Milroy, you spoke about the 8 criminal procedure rules, and there was an aspect I 9 wanted to ask you about. Do I understand it that if 10 there were such a meeting to take place -- prosecution 11 and defence experts -- the contents of the information 12 discussed isn't disclosed to those outside the meeting? 13 DR. CHRISTOPHER MILROY: That's -- well, 14 that -- I think that's the law, that you can only 15 disclose it to the -- to the Court. 16 MR. JEFFREY MANISHEN: And the reason I 17 ask that, currently within Canada, of course, the defence 18 are required to give the prosecution notice of an 19 intention to call an expert, the CV of the expert, the 20 area of expertise, but not the content. Because the 21 defence, I must say, doesn't want to be in a position of 22 having to show all their cards of what the accused's 23 evidence might be before the beginning of the case for 24 the prosecution. 25 DR. CHRISTOPHER MILROY: Well, it's
861 different in the UK because, if you wish to call 2 scientific evidence expert evidence you must disclose it 3 in advance, and the prosecution have the right to look at 4 it. 5 And, actually, I think that -- defence 6 lawyers may disagree with me -- that must be right, 7 because the idea of the science is it's supposed to be 8 objective and for the Court not for the side. 9 But what happens in -- in fact, the law 10 has gone further in the UK now, and it says that where 11 the defence consult an expert, there are provisions in 12 the law -- I don't know that it's actually been enacted, 13 but it's in one of our Acts, that the defence have to 14 disclose that they have sought the opinion, even if they 15 don't have to -- if -- even if they don't want to 16 disclose the opinion. 17 MR. JEFFREY MANISHEN: We -- we've seen 18 and I think you've described already the -- the potential 19 effect that can happen when a defence expert is 20 available. 21 I suppose the idea of attempting to 22 resolve the issues in advance creates a further benefit 23 providing the defence position is we're prepared to 24 disclose this because we believe the prosecution's 25 dealing --
871 DR. CHRISTOPHER MILROY: Yeah. 2 MR. JEFFREY MANISHEN: -- with us in good 3 faith. Would you agree? 4 DR. CHRISTOPHER MILROY: I agree. 5 MR. JEFFREY MANISHEN: Because if on the 6 other hand, if it's a matter of simply learning the 7 defence and proceeding on, regardless with the 8 prosecution, nothing's gained? 9 DR. CHRISTOPHER MILROY: Correct. 10 MR. JEFFREY MANISHEN: All right. That 11 covers the areas I wanted to cover. Thank you. 12 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 13 Manishen. Mr. Falconer...? 14 MR. MARK SANDLER: As Mr. Falconer is 15 coming forward, I should indicate, Commissioner, that 16 we've been advised that the Ontario Crown Attorney's 17 Association does not wish to use its time. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 MR. JULIAN FALCONER: And I understand, 20 Mr. Commissioner, they're offering it to me. 21 COMMISSIONER STEPHEN GOUDGE: Fat chance. 22 MR. JULIAN FALCONER: You never ask, you 23 never get, Mr. Commissioner. 24 25 CROSS-EXAMINATION BY MR. JULIAN FALCONER:
881 MR. JULIAN FALCONER: Good morning, Dr. 2 Milroy, Dr. Crane, and Dr. Butt. 3 DR. CHRISTOPHER MILROY: Good morning. 4 DR. JACK CRANE: Good morning. 5 DR. JOHN BUTT: Good morning. 6 MR. JULIAN FALCONER: My name is Julian 7 Falconer. I represent Aboriginal Legal Services of 8 Toronto, and I represent Nishnawbe Aski Nation. 9 Aboriginal Legal Services of Toronto is a multi-service 10 legal agency providing services to First Nations' 11 communities across the province. Nishnawbe Aski Nation 12 is a nation of First Nations' communities. 13 Its geography occupies two-thirds (2/3) of 14 the province of Ontario and consists of forty-nine (49) 15 First Nations. And from the point of view of the 16 questioning I'm going to be occupying my fifteen (15) 17 minutes with, it primarily involves the issue of the 18 delivery of death investigation services to remote 19 communities. 20 And frankly, with -- with the greatest of 21 respect to Dr. Milroy and Dr. Crane, I'm -- I'm going to 22 direct most of my, if not all of my, questions to Dr. 23 Butt, and I can't help, but for the record, note the 24 relief on the faces of Drs. Milroy and Crane. 25 Dr. Butt, you were the equivalent of or
891 were the chief coroner for provinces of Nova Scotia and 2 Alberta, though I know the term medical examiner is -- 3 was used and -- and is used in -- in those jurisdictions, 4 correct? 5 DR. JOHN BUTT: Yes, that's correct. 6 MR. JULIAN FALCONER: And I'm going to 7 try to cut to the heart of this, but in doing so I need 8 to -- to draw your -- your attention to an issue that 9 occupied a good part of my examination of former chief 10 coroner, Dr. McLellan. And it -- it's simply this -- and 11 I'm going to try to be, perhaps, too colloquial about it. 12 13 Am I right when talking about the 14 provision of health services in any community that if 15 there is a great difficulty in extending a health service 16 to live people there's probably going to be a greater 17 difficulty to get those same health professionals to 18 extend those services to deceased people, is that a fair 19 comment? 20 DR. JOHN BUTT: Yes, it is. 21 MR. JULIAN FALCONER: So, for example, if 22 I can't find doctors to treat live people in remote First 23 Nations' communities, it would probably explain why I have 24 an even greater problem in finding doctors to give 25 investigative coronial services to First Nations deceased
901 people, fair? 2 DR. JOHN BUTT: Yes. 3 MR. JULIAN FALCONER: Now, we heard some 4 evidence from Dr. McLellan on this, but -- and I want to 5 be very clear. For context purposes, over 50 percent of 6 First Nations population in the province of Ontario are 7 actually in Northern communities, some fly-in communities, 8 okay. 9 DR. JOHN BUTT: Understood. 10 MR. JULIAN FALCONER: Now, from the point 11 of view of the terminology I'm about to use, I use the 12 term medical practitioners to mean doctors, all right, -- 13 DR. JOHN BUTT: Yes. 14 MR. JULIAN FALCONER: -- medically trained 15 doctors. 16 DR. JOHN BUTT: Yes. 17 MR. JULIAN FALCONER: I use the term 18 health professionals to encompass health-related 19 occupations. It could be a nurse, it could be a comm -- 20 community health representative, et cetera, okay? 21 DR. JOHN BUTT: Yes. 22 MR. JULIAN FALCONER: And finally, of 23 course, police is self-explanatory as a peace officer. 24 What I want to ask you is this, in your considered view, 25 it is essential for the delivery of reasonable and
911 competent death investigation services that the lead 2 investigator from the coroner's office be a medical 3 practitioner or a peace officer? 4 DR. JOHN BUTT: Is it an absolute 5 requirement? 6 MR. JULIAN FALCONER: Yes. 7 DR. JOHN BUTT: It's desirable, but it's 8 not practical. 9 MR. JULIAN FALCONER: All right. And is 10 it essential for the delivery of reasonable and competent 11 death investigation services, in your view? 12 DR. JOHN BUTT: It -- it's probably not. 13 MR. JULIAN FALCONER: All right. 14 DR. JOHN BUTT: There's a way of extending 15 it beyond -- to use re -- to use resources, and that has 16 to be faced, obviously, in communities like you've 17 suggested; fly- in northern communities. 18 MR. JULIAN FALCONER: Now -- 19 COMMISSIONER STEPHEN GOUDGE: Could you 20 elaborate a little on that? Sorry, Mr. Falconer, I just-- 21 MR. JULIAN FALCONER: No, go ahead. Go 22 ahead. 23 DR. JOHN BUTT: Pardon me. 24 COMMISSIONER STEPHEN GOUDGE: You say 25 there's a way of doing it to extend the resources; how
921 would you do that? 2 DR. JOHN BUTT: Well, in terms of 3 identifying doctors as being necessary, it's obvious that 4 there are provinces that don't require doctors -- their 5 coroners to be doctors. So that's an accepted principle. 6 Ontario is not one (1) of those. In places 7 where there are doctors, as Mr. Falconer pointed out, it's 8 difficult to get them to go into an area where there are 9 no medical services or where they even offer -- doctors 10 offer medicin -- medical services. It's sometimes, and 11 not uncommon, to have them refuse to accept the Office of 12 Coroner or local medical examiner, by virtue of the 13 fullness of their schedule on a day-to-day basis. 14 And, Mr. Falconer indicated the issue of 15 getting a doctor to do a house call on the living -- and 16 this wasn't his exact example -- but it's certainly an apt 17 one (1); where you can't get them to do a house call on 18 the living, how would you ask them to do a house call on 19 the dead? 20 And how to extend this would be, for 21 example, to use health care professionals as an arm either 22 of a coroner located in another jurisdiction that was, 23 perhaps, nearby, or an arm of the coroner who was 24 centrally located, such as the Chief Coroner of the Yukon 25 where there is only one (1) office.
931 COMMISSIONER STEPHEN GOUDGE: So like a 2 nurse or something like that? 3 DR. JOHN BUTT: That -- it wouldn't 4 necessarily have to be a nurse. In my experience of using 5 a number of health professionals, and I started this 6 program in 1976 to augment the system in Calgary and 7 Edmonton so that there was a visit by a representative of 8 the medical examiner's office. 9 Because you couldn't get doctors to go to 10 the scene of death, so we began to employ a variety of 11 health care professionals, and had examples in using a 12 laboratory technologist, et cetera, and found that nurses 13 delivered exactly what we wanted because they had the best 14 understanding of the language and had a sense of 15 compassion towards the survivors. 16 And that was the model, and I think it 17 probably is the North American model. 18 COMMISSIONER STEPHEN GOUDGE: Did you have 19 a training program for that? 20 DR. JOHN BUTT: Yes, sir, we did have a 21 training program. I -- I developed an in-house training 22 program. In association with one (1) of the hospitals we 23 had, for example, an opportunity for them to learn about 24 management of crisis in the psychiatric context. 25 And we also sent them to a training program
941 in St. Louis, Missouri, and to the best of my knowledge, 2 that's still being done in the provinces. I -- I don't 3 have any direct connection with them, but I think it's 4 still the case; send them to the United States for medical 5 -- or for investigator training -- death investigator 6 training. 7 COMMISSIONER STEPHEN GOUDGE: Yes. Sorry, 8 thanks, Mr. Falconer. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 MR. JULIAN FALCONER: No, not at all, Mr. 12 Commissioner. The -- the reality is -- because I don't 13 want to make this too artificial, Dr. Butt -- I, of 14 course, as is proper and pursuant to the Inquiry rules 15 made inquiries of you, in advance, to ask you about these 16 issues. 17 And I understand that you had an 18 opportunity, for example, to look at the Manitoba Fatality 19 Inquiries Act, which is document Number 300249, located at 20 Tab 22 of binder 1. You had an opportunity to look at 21 that Act, is that fair? 22 DR. JOHN BUTT: I -- I reviewed it very 23 quickly, Mr. Falconer, yes. 24 MR. JULIAN FALCONER: Yes. That's fine. 25 I'm going to --
951 DR. JOHN BUTT: What tab was it that -- 2 MR. JULIAN FALCONER: -- I'm going to 3 take -- 4 DR. JOHN BUTT: -- you wanted me to refer 5 to? 6 MR. JULIAN FALCONER: -- I'm going to take 7 you to Tab 22. 8 DR. JOHN BUTT: Yes, okay. That's going 9 to be on the Board anyhow. This is the Manitoba Act, is 10 it? 11 MR. JULIAN FALCONER: Yes, right. And in 12 particular, it's the definition of investigator that I 13 want to take you to briefly. It's in a definition 14 section. And then I want to skip quickly to section 3(1), 15 and I apologize, sir -- so, first, you go to the start of 16 the Act and you look in "Investigator." So, under the 17 definitions, the second page -- 18 DR. JOHN BUTT: Yes, I have it here. 19 MR. JULIAN FALCONER: And we're going to 20 put it on the screen. 21 DR. JOHN BUTT: Mm-hm. 22 MR. JULIAN FALCONER: And you see 23 "investigator" means a person appointed under subsection 24 3(1) and does not include a police officer to whom section 25 39 applies.
961 DR. JOHN BUTT: Yes. 2 MR. JULIAN FALCONER: All right? 3 DR. CHRISTOPHER MILROY: Yes. 4 MR. JULIAN FALCONER: And then we flip 5 over to 3(1) -- and this is just one (1) example -- we 6 flip over to section 3(1) and it says -- I apologize, yes, 7 that would be page 4 of the document. It goes right to 8 the bottom. Can we get the bottom of that document under 9 section -- at page 4? There we are. And I'm going to be 10 going to the next page. 11 "The Chief Medical Examiner may appoint 12 a person who is not a duly qualified 13 medical practitioner to act as an 14 investigator." 15 And we go to the next page. 16 "An investigator appointed under 17 subsection 1 shall have the powers and 18 duties of a medical examiner, other than 19 to determine the cause of the manner of 20 death for purposes of an Inquiry report, 21 to commence or conduct an investigation, 22 or to order or perform an external 23 examination or autopsy." 24 It's fair to say that Manitoba would be an 25 example of where a lead investigator isn't a medical
971 practitioner and has broad powers. 2 Is that right? 3 DR. JOHN BUTT: Yes. 4 MR. JULIAN FALCONER: And, in fact, and -- 5 and this is really more for the record and reflects the 6 documents we gave notice on and form part of the database 7 -- if one has regard to many of the different 8 jurisdictions. 9 We start with the two (2) jurisdictions you 10 were directly involved with, Dr. Butt -- Alberta, while 11 the -- in Alberta, while the medical examiner must be a 12 doctor being the equivalent of a Chief Coroner, the 13 investigator in Alberta has -- can -- can be broadly 14 appointed, though it is automatically a peace officer, it 15 can be somebody else. Correct? 16 DR. JOHN BUTT: That's correct. 17 MR. JULIAN FALCONER: In Nova Scotia, 18 again, the medical examiner being the equivalent of a 19 Chief Coroner, there is a provision for an investigator in 20 Nova Scotia, same idea, broadly defined and would 21 automatically include a police officer, but can be others. 22 Correct? 23 DR. JOHN BUTT: That's correct. 24 MR. JULIAN FALCONER: And "others" always 25 means "other than medical practitioners."
981 DR. JOHN BUTT: That's correct. 2 MR. JULIAN FALCONER: Now, I want to ask 3 you for a moment, in making the inquiries and -- and 4 conducting the kinds of research you did as a result of my 5 questions, I understand you made some communications with 6 others. 7 DR. JOHN BUTT: I did. In this matter, 8 yes. 9 MR. JULIAN FALCONER: And who -- who would 10 that be? 11 DR. JOHN BUTT: I spoke with a person, in 12 fact, who had been a medical investigator in the Office of 13 the Chief Medical Examiner of Alberta. That was a person 14 who I was in -- involved in engaging and knew of his 15 actions although he was in the Edmonton Office. 16 His name is Mr. Kent Stewart, and I think 17 he's a good example because his career went as follows: 18 From being a medical investigator in Alberta, he took a 19 hospital position and then he became appointed the Chief 20 Coroner -- he -- he went to the Office of the Chief 21 Coroner in British Columbia; subsequently became the Chief 22 Coroner of the Yukon, and is now the Chief Coroner of the 23 Province of Saskatchewan. 24 In the latter two (2) appointments, the 25 coroners are not medically qualified, or don't have to be,
991 and there are no medical coroners, to my knowledge, in the 2 Yukon. 3 MR. JULIAN FALCONER: And I specifically 4 asked you to -- to, if you could -- if one was referring 5 to a lead investigator who wasn't a medical practitioner 6 and was not a -- a peace officer, I asked you if you could 7 itemize, through your communications and your research, 8 some of the characteristics you would expect this 9 community-based investigator to have. 10 Could you assist me with that? 11 DR. JOHN BUTT: Yes. Well, I mean, 12 looking at our own experience, I can even augment the list 13 that I discussed with -- with Kent Stewart. 14 First of all, the issue of communication 15 skills is very important under these circumstances. 16 Obviously, they have to have a good relationship in the 17 community, and that includes with the police who have to 18 have some sense that the position is worthy and that the 19 person is, likewise, worthy. 20 And then such issues as an understanding of 21 local issues in the community are of advantage. And this 22 -- these are items that he pointed out to me, in 23 particular, so that if there were problems in the 24 community that they thought were related to the death, 25 whether those were particularly violent or whether they
1001 were public health issues that were rather more benign, 2 they still would be an appropriate point to be drawn to 3 the attention of the supervisor of that investigator. 4 Now, the supervisor is, one understands it, under these 5 circumstances would -- for example, in the Ontario model 6 be somebody who was closer to the centre of the 7 organization. 8 Maybe that would be a regional coroner 9 somewhere or a local coroner in a town where there were 10 medical coroners or even in the office of the chief 11 coroner in Toronto. So the issue that he also illuminated 12 was one of a sense of -- in the community of impartiality 13 and, -- and I think that those were pref -- if I may just 14 review the list here quickly. 15 One (1) of the things that he said to me 16 was that under these circumstances that the -- the 17 investigator requires a lot of support from the central or 18 the other focus to which he wa -- is reporting. So I 19 think those are -- 20 MR. JULIAN FALCONER: So in Ontario, that 21 would be, for example, the Office of the Chief Coroner for 22 Ontario? 23 DR. JOHN BUTT: Well, yes, either on a 24 regional or central basis. I mean, there are lots of 25 regional coroner's appointments, whether they're in the
1011 areas that you're talking about, I wouldn't know. 2 MR. JULIAN FALCONER: So I'll just go over 3 that -- were -- were you finished? 4 DR. JOHN BUTT: I'm -- I'll just quickly 5 review it here. The other issue I think that he talked 6 about was accessibility. Well, that, of course, is a very 7 big issue, but the -- you know, when you make the 8 appointment locally that's one (1) of the features of -- 9 that's one (1) of the advantages. That's all. 10 MR. JULIAN FALCONER: In -- so if I can 11 summarize. First of all, you -- you've made reference to 12 communication skills, yes? 13 DR. JOHN BUTT: Yes. 14 MR. JULIAN FALCONER: Secondly, the notion 15 of a relationship with the police whereby he was or she 16 was, as a community-based investigator seen as independent 17 and impartial, correct? 18 DR. JOHN BUTT: Yeah, yes. 19 MR. JULIAN FALCONER: And then -- and the 20 other aspect of the relationship with the police was 21 whereby the police had buy-in, that they respected the 22 position? 23 DR. JOHN BUTT: Yes. 24 MR. JULIAN FALCONER: Then you next 25 referred to the -- the importance of support from the
1021 office of the chief coroner? 2 DR. JOHN BUTT: Yes. 3 MR. JULIAN FALCONER: And that would be, 4 obviously, both financial and, no doubt, educational 5 support? 6 DR. JOHN BUTT: But the -- the emphasis 7 on the latter, I think, in the beginning, for certain, and 8 a continuing program, for example. So that when coroners 9 run programs for death investigation for their own medical 10 people, qualified or unqualified -- I mean, recently, we 11 had the opportunity to meet with Senator Campbell here, 12 and he had just come from a training session for 13 Saskatchewan coroners. 14 So investigators would be invited into that 15 -- into that circle. 16 MR. JULIAN FALCONER: Now, one (1) -- one 17 (1) thing I want to ask you, do you see -- 18 COMMISSIONER STEPHEN GOUDGE: You are 19 running out of time, Mr. Falconer? 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 MR. JULIAN FALCONER: Fair enough, and I'm 23 -- and I'm wrapping up. Do you see benefits -- do you see 24 benefits in a community-based investigator not being the 25 police officer?
1031 DR. JOHN BUTT: I do, definitely. I mean, 2 I've had an experience about that, in fact. And there are 3 problems, of course, in the Aboriginal community with 4 understanding their relationship, and I won't go farther 5 than that, with -- with the police. 6 And so when we used the police in remote 7 fly-in areas in northern Alberta, particularly in area -- 8 there was Garden River where there were no doctors within 9 many, many miles, hundreds of miles. There was a lack of 10 trust in the community over removing a body on more than 11 one (1) occasion because there is an antipathy, at the 12 least, by natives and -- about autopsies, particularly 13 with more traditional natives. 14 MR. JULIAN FALCONER: Mm-hm. 15 DR. JOHN BUTT: So that's an area that 16 could be overcome, for example, by having health-related 17 investigator, an investigator that was given some training 18 and looked after those is -- issues in terms of 19 understanding the sensitivity of the community and the 20 needs of the law. 21 MR. JULIAN FALCONER: And, of course, at 22 the end of the day, there's no suggestion that a 23 community-based investigator of that type would not have 24 the benefit of police officers, correct? 25 DR. JOHN BUTT: Well, that's a given.
1041 MR. JULIAN FALCONER: right 2 DR. JOHN BUTT: That's a given. 3 MR. JULIAN FALCONER: Thank you very much, 4 Dr. Butt. And I thank you, Doctors Milroy and Crane. 5 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 6 Falconer. We will take our morning break now and be back 7 just before twenty (20) to 12:00. And maybe, Mr. Sandler, 8 you could canvass what remains for us. 9 10 --- Upon recessing at 11:22 a.m. 11 --- Upon resuming at 12:46 p.m. 12 13 THE REGISTRAR: All rise. Please be 14 seated. 15 COMMISSIONER STEPHEN GOUDGE: Okay. Ms. 16 Fraser...? 17 18 CROSS-EXAMINATION BY MS. SUZAN FRASER: 19 MS. SUZAN FRASER: Mr. Commissioner, 20 gentlemen, my name is Sue Fraser, and I'm here on behalf 21 of an organization called Defence for Children 22 International which is an independent grass roots 23 organization founded in Geneva in 1979. 24 And its mission is to promote the rights 25 of the child, and I have some questions on their behalf
1051 today. And I'll -- I'll start with Dr. -- with Professor 2 Milroy, and if the others feel the need to jump in, 3 please do so. 4 But I'll -- I've got my fifteen (15) 5 minutes of fame, so I'll try to be -- to be quick. I 6 take it, Dr. Milroy, that it's a fundamental part of 7 pathology that you engage in this work in order to 8 understand disease and illness in order to prevent it; 9 that's part of what you do? 10 DR. CHRISTOPHER MILROY: Yes. I think -- 11 I mean, forensic pathology is -- is ultimately about 12 public safety. 13 MS. SUZAN FRASER: All right. And public 14 safety in more then one (1) way; both in terms of the 15 actual medical side of it, in terms of illness 16 prevention, but also in terms of the criminal justice 17 side of it that you become an actor in the criminal 18 justice system? 19 DR. CHRISTOPHER MILROY: Absolutely. 20 MS. SUZAN FRASER: All right. And I'm 21 interested in the medical part of that for the moment. 22 That in understanding how people come to their end, we 23 can understand how we can prevent that, isn't that fair? 24 DR. CHRISTOPHER MILROY: That's correct. 25 MS. SUZAN FRASER: All right. And we
1061 have heard from Dr. Pollanen and Dr. McLellan that the -- 2 in terms of our understanding of deaths -- understanding 3 the deaths of children from zero (0) to five (5) are 4 generally considered to be more complex. 5 Is that something that you would agree 6 with? 7 DR. CHRISTOPHER MILROY: I agree. 8 MS. SUZAN FRASER: And -- and, Dr. Crane, 9 you as well, that zero (0) to five (5) is a more complex 10 range? 11 DR. JACK CRANE: Yes, I would. 12 MS. SUZAN FRASER: And I take it from 13 understanding this and looking at the overview reports, 14 that we have one (1) -- one (1) of the most difficult 15 categories appears to be where there is a sudden 16 unexpected death that could be SIDS or some -- some 17 suspicious event, but at the end of the day you may -- 18 may not be able to determine whether it is caused -- 19 whether it's a naturally occurring event or an unnatural 20 event, is that fair? 21 DR. CHRISTOPHER MILROY: Yes. 22 MS. SUZAN FRASER: And, Dr. Crane, you'd 23 agree as well? 24 DR. JACK CRANE: I would, yes. 25 MS. SUZAN FRASER: And Dr. Butt?
1071 DR. JOHN BUTT: Yes. 2 MS. SUZAN FRASER: All right. And 3 similarly, in adults, you may have somebody who is 4 suffocated, and you are not able to determine whether 5 they're suffocated or may have died by natural causes. 6 This is a problem with forensic pathology 7 on this area; is that fair? 8 DR. CHRISTOPHER MILROY: Yes. It's -- 9 it's particularly so at the extremes of life or I mean, 10 to overcome somebody who is active and an adult is much 11 more difficult then if they're elderly infirmed or if 12 they're young and unable to resist. 13 MS. SUZAN FRASER: All right. But -- but 14 you may not see any signs in an adult as you might not in 15 a child, is that fair? 16 DR. CHRISTOPHER MILROY: That's correct. 17 MS. SUZAN FRASER: All right. And on the 18 other end of the spectrum, you may have a child who comes 19 before you, who -- where you see clear signs of abuse and 20 your question may be whether the abuse is all connected 21 with how they came to their end, isn't that fair? 22 DR. CHRISTOPHER MILROY: That's correct. 23 MS. SUZAN FRASER: All right. Now -- and 24 we have seen cases like this in the overview reports 25 where there are signs of abuse, but the question
1081 ultimately is, is that connected to how the child came to 2 their end. And that may be a question that we don't 3 know. Is that fair? 4 DR. CHRISTOPHER MILROY: That's correct. 5 MS. SUZAN FRASER: All right. And so, in 6 some respects the issue then becomes the nature of the 7 charge; whether a charge of child abuse could be 8 sustained versus a charge of manslaughter or murder. 9 Is that fair? 10 DR. CHRISTOPHER MILROY: Yes, those are 11 the -- obviously, homicide or assault or child abuse and 12 neglect. There are obviously different jurisdictions 13 have different, similar laws. 14 MS. SUZAN FRASER: And I take it that 15 there is a role for forensic pathologists to play in 16 terms of determining whether there has been abuse when a 17 deceased child comes before them. Is that fair? 18 DR. CHRISTOPHER MILROY: Yes. 19 MS. SUZAN FRASER: Okay. And would you 20 then agree that the review of deaths -- just moving away 21 then from understanding that role of the forensic 22 pathologist, would you agree that the review of death is 23 an important process in understanding how children come 24 to their end? 25 DR. CHRISTOPHER MILROY: Yes.
1091 MS. SUZAN FRASER: All right. And just - 2 - Ms. Langford asked Dr. Crane some questions about the 3 short falls and the high falls that -- I take it that 4 when you're working on an evidence-based model that you 5 actually have to ne -- you need the evidence, in order to 6 come up with an understanding as to how many children die 7 from a short fall, and how many children die from a high 8 fall. 9 Is that -- is that fair? 10 DR. CHRISTOPHER MILROY: You need an 11 evidence base and you need, therefore, people to do 12 research and put it into the literature, yes. 13 MS. SUZAN FRASER: All right. And I take 14 it then that there is merit to systemic tracking of 15 children's deaths and how children come to their death 16 even outside of the criminal justice system. Is that 17 fair? 18 DR. CHRISTOPHER MILROY: Yes. 19 MS. SUZAN FRASER: All right. And in 20 England, do you have a system by which you track how 21 children die? 22 DR. CHRISTOPHER MILROY: There are -- 23 obviously there is a national -- there's an Office of 24 National Statistics. 25 MS. SUZAN FRASER: Yes.
1101 DR. CHRISTOPHER MILROY: And there is -- 2 they're obviously coronial inquests. Some areas have 3 their own developed child death review panels, but there 4 isn't, to my knowledge, a -- there's not a systematic or 5 child death review -- nothing prescribed by legislation. 6 MS. SUZAN FRASER: All right. And do you 7 see there being a benefit in tracking how children die; 8 in reviewing the deaths of those from zero (0) to say 9 seventeen (17), in understanding how children come to 10 their end, and in what circumstances they come to their 11 end? 12 DR. CHRISTOPHER MILROY: I'm -- I 13 certainly -- I was at a meeting where, you know, comment 14 was made -- I think by a pediatrician -- that any 15 civilized society will care about how their children die. 16 MS. SUZAN FRASER: All right. 17 DR. CHRISTOPHER MILROY: And I think that 18 that's a -- correct. 19 MS. SUZAN FRASER: All right. And that 20 is the kind of information -- that type of death review 21 system could help you with the statistical side, in 22 terms of understanding or establishing the evidence that 23 you need for evidence-based decision making in forensic 24 pathology. 25 DR. CHRISTOPHER MILROY: Yeah. You want
1111 it for a purpose. I mean, the whole idea of -- I mean, 2 if you're not going to use the information that you 3 gather from autopsies, then why are we doing them? 4 MS. SUZAN FRASER: All right. And Dr. 5 Crane, would you agree? 6 DR. JACK CRANE: Yes, we do child death 7 review meetings but we -- we don't actually go to them 8 all but there is one held for all deaths of children up 9 to the age of two (2) years. 10 There has been some discussion about 11 whether this should be extended to, you know, really zero 12 (0) to seventeen (17), you know. 13 MS. SUZAN FRASER: Yes. 14 DR. JACK CRANE: I'm just not so sure 15 about -- I mean, I have no difficulty with it, but 16 usually the majority of the older ones are things like 17 accidents and so forth. 18 MS. SUZAN FRASER: Yes. 19 DR. JACK CRANE: But I think the 20 information needs to be available on deaths so that it 21 can be looked at. Yes. 22 MS. SUZAN FRASER: All right. And it's 23 fair to say that the better information you have, the 24 better that forensic pathology can become. Because the 25 better information you have, the better -- the better
1121 input, the better output. 2 DR. JACK CRANE: Yes, that's correct. 3 MS. SUZAN FRASER: All right. 4 DR. JACK CRANE: Absolutely. 5 MS. SUZAN FRASER: And Dr. Butt, would 6 you agree with that? 7 DR. JOHN BUTT: Yeah, I would. I mean, I 8 don't know about this on a local level. I've never been 9 involved with this except with meeting in the -- say the 10 Provincial Department of Health. 11 Obviously, there's an interest there, but 12 there's also a national interest in this, which you may 13 be aware of. And I don't know where this program went 14 because I left the organization of senior government 15 death investigative Chief Coroners, et cetera. 16 This was going on through a -- I think -- 17 Stats Canada, in order to provide this information. And 18 there was some significant input from the -- from Health 19 Canada about this and the collection of this information 20 and styles in which it would be collected, particularly 21 in reference to children, but latterly, in reference to 22 all deaths, particularly those that had occurred 23 unnaturally. 24 But this project was developed in the 25 1990s and I think that at that time Dr. Marcus Dean
1131 (phonetic), who was the Chief pra -- Medical Examiner for 2 the Province of Manitoba had some interest in it. 3 So if that provides you with any help, you 4 know... 5 MS. SUZAN FRASER: And -- and, Dr. Butt, 6 are you referring to -- there's a 1997 report on child 7 mortality -- is that what you're referring to? 8 DR. JOHN BUTT: Yes, that's right. 9 MS. SUZAN FRASER: All right, all right, 10 I'm aware of that. And -- but to the best of your 11 knowledge, in Canada there hasn't been anything 12 subsequent to that in terms of a report. 13 DR. JOHN BUTT: Well, I'm disappointed to 14 hear that, if that's the case. 15 MS. SUZAN FRASER: Oh, no, I'm -- I'm not 16 trying to give a -- 17 DR. JOHN BUTT: I am, if that's the case 18 and I mean -- 19 MS. SUZAN FRASER: Well, I'm asking you 20 if it is the case and if you know. 21 DR. JOHN BUTT: Oh, no, I don't know. 22 MS. SUZAN FRASER: All right, thank you. 23 DR. JOHN BUTT: No, I don't know. 24 MS. SUZAN FRASER: Okay. I want to then 25 just finish off on that point that in terms of death
1141 review, is it -- is it beneficial for the review of a 2 death to be multi-disciplinary or holistic looking at the 3 whole of the child? 4 Dr. Crane, you look like you want to 5 answer this. 6 DR. JACK CRANE: Well, because we do it-- 7 MS. SUZAN FRASER: Yeah. 8 DR. JACK CRANE: -- yes, it is. I mean 9 the pathologist has one (1) input into it, but a lot of 10 the input actually comes from the -- the pediatricians, 11 as well, because they have a very important role and 12 function in this, as well, so I -- I -- I think we -- we 13 -- we want to get as many people together as possible and 14 discuss it; usually the family practitioner is another 15 one (1), sometimes the health visitor would -- would be 16 at the meeting, yes. 17 MS. SUZAN FRASER: All right, so in your 18 system is the person who is involved in the care of the 19 child actually part of the death review team or is it 20 independent? 21 DR. JACK CRANE: If the family 22 practitioner -- we -- we try to encourage them to come 23 along, because again, often they have information that 24 maybe we weren't aware of. And the other advantage is 25 that, of course, they may have ongoing care for other
1151 members of the family, and I think that's important. 2 MS. SUZAN FRASER: All right. And just 3 finally on that point, do you see a benefit to that 4 process being independent and somewhat transparent in 5 producing reports? 6 DR. JACK CRANE: Yes, we -- we produce 7 usually a report on -- on each in -- individual case, so 8 we do, because otherwise there's no point in doing it if 9 you're not going to do something. 10 And we try and -- when we have a case, if 11 there's something to be learned or there's something -- 12 some issue to be flagged up, we will -- we would note 13 that. 14 DR. CHRISTOPHER MILROY: And just to say 15 that the -- that the process is done in family 16 proceedings where there's a death is what's known as a 17 Partake (phonetic) Hearing in England and Wales, which 18 can take place very rapidly after the death if it is a -- 19 typically when there's been questions of abuse, but that 20 is -- I think that's -- those -- those proceedings are 21 always held in camera so that -- so in that sense -- and 22 obviously you've got the -- you've got the confliction 23 between the -- the child's privacy and the -- and the 24 need for transparency. 25 COMMISSIONER STEPHEN GOUDGE: Can I just
1161 ask, Dr. Crane, when you say that "we produce a report", 2 the "we" is...? 3 DR. JACK CRANE: The committee will 4 write, you know, a short report on each -- each case. 5 And I can probably just -- 6 COMMISSIONER STEPHEN GOUDGE: What 7 happens to it? 8 DR. JACK CRANE: Well -- well, we keep it 9 so that -- I was going to say what use it is. We were 10 looking at our so-called SIDS deaths; in other words, 11 these were the sudden deaths in infants that we were -- 12 COMMISSIONER STEPHEN GOUDGE: So it's 13 under the auspices of the committee that investigates all 14 deaths under two (2)? 15 DR. JACK CRANE: That's correct, yes. 16 And we -- obviously we're looking at these and what we 17 found is that there is -- in the last number of years 18 there have been a very significant decline in the number 19 of SIDS deaths because of adoption of a different 20 sleeping position in children, advice on parental 21 smoking, and that sort of thing. 22 But when we looked at our SIDS cases we 23 found that of the seventy-five (75) cases that we 24 reviewed over a period of five (5) years, something like 25 80 percent of those were co-sleeping deaths. In other
1171 words, these were deaths of infants that occurred either 2 in bed with the parents or on a sofa with parents, often 3 when the parents have been drinking. 4 Now, I -- on the basis of that information 5 one (1) of my colleagues has published a paper on it 6 that's in -- it's in the literature, but then the 7 Department of Health then issued advice in the form of a 8 booklet to all mothers after they've given birth about 9 the risks of co-sleeping. 10 So we felt that there was something 11 positive coming out of it; it wasn't simply just making a 12 report for the sake of reading it. Something useful came 13 out of that. 14 15 CONTINUED BY MS. SUZAN FRASER: 16 MS. SUZAN FRASER: All right. And a 17 topic very near to me -- dear to me, since I have three 18 (3) children who are under two and a half (2 1/2), so co- 19 sleeping was something very much at the forefront of the 20 concerns for me. 21 But in any event, to just take me to my 22 next point then that those -- those reviews and that 23 understanding, the seventy-five over five (75/5), you 24 have the individual case summaries. 25 Does that get, somehow, translated into a
1181 report that's publicly available, or the individual case 2 reviews publicly available? 3 DR. JACK CRANE: It hasn't done, and 4 there was some discussion about whether there should be 5 some sort of annual report done. And I have to say, we - 6 - we haven't got around to that. I mean, there's just so 7 many hours in the day. But, I mean, there -- there may 8 be merit in -- in doing that. 9 Certainly, what we do is we periodically 10 review all the cases, because if we are seeing a trend, 11 as we were with the SIDS deaths, then clearly we -- we 12 will review all those cases again. 13 COMMISSIONER STEPHEN GOUDGE: Individual 14 reports, presumably, throw up the privacy issue. 15 DR. JACK CRANE: Yes. I mean, we 16 certainly will share the information with people who we 17 think need to know it, and the family practitioner is -- 18 is one person where there are implications for other 19 family members. 20 21 CONTINUED BY MS. SUZAN FRASER: 22 MS. SUZAN FRASER: All right. Just 23 turning, then, to the issue of the child protection 24 proceedings, and I understood from your earlier evidence, 25 Professor Milroy, that from time to time you're asked to
1191 give evidence in the context of what we would call "a 2 child protection proceeding". 3 DR. CHRISTOPHER MILROY: That's correct. 4 MS. SUZAN FRASER: All right. And I take 5 it that in that proceeding, that the standard of proof in 6 terms of the allegations is different than in a criminal 7 proceeding, is it? 8 DR. CHRISTOPHER MILROY: It's the civil 9 balance. 10 MS. SUZAN FRASER: All right. And in 11 terms of the results, the results could be equally as 12 devastating -- a prison term or the loss of a child 13 through a wardship order. 14 DR. CHRISTOPHER MILROY: No, you can't -- 15 you can't go to prison from family proceedings 'cause 16 it's a civil. 17 MS. SUZAN FRASER: No, sorry, my question 18 was -- was not well worded, I think. That in terms of 19 the parent might be prosecuted and go to jail for a 20 certain term -- that's one (1) consequence in a criminal 21 proceeding. 22 DR. CHRISTOPHER MILROY: Sure. 23 MS. SUZAN FRASER: And in the civil 24 proceeding, the consequence could be equally devastating 25 --
1201 DR. CHRISTOPHER MILROY: In terms of the 2 children being removed and ev -- even to the extent that 3 they're given up for adoption, yes. 4 MS. SUZAN FRASER: Yes. 5 DR. CHRISTOPHER MILROY: It -- it can -- 6 it can be a devastating effect upon the parents. 7 MS. SUZAN FRASER: All right. And I 8 think that in -- in one case -- in Joshua's case, the 9 sibling was adopted out. 10 So, I take it that you are content that 11 your opinion as a forensic pathologist be used in these 12 types of proceedings. 13 DR. CHRISTOPHER MILROY: Yes. 14 MS. SUZAN FRASER: And are you 15 comfortable with the -- given the consequences -- with 16 the standard of proof being on a balance of 17 probabilities? 18 DR. CHRISTOPHER MILROY: Well, I don't 19 think that's -- I mean that -- that goes way beyond the 20 forensic pathologist's -- 21 MS. SUZAN FRASER: All right. I take it 22 that in the United -- we've heard about the Criminal 23 Cases Review Commission -- 24 DR. CHRISTOPHER MILROY: Yeah. 25 MS. SUZAN FRASER: -- which looks to set
1211 aside -- looked to examine whether a conviction might be 2 wrongful. And Dr. Crane has experience with that as 3 well. 4 I take it that there's no system in the 5 United Kingdom that reviews wardship orders or adoptions? 6 DR. CHRISTOPHER MILROY: That is a very 7 interesting question, because it has been foc -- the 8 attention in the -- in the media has been focussing on 9 this. There has been no -- I mean, after Sir Roy Meadows 10 fell from grace, as pointed out, he gave evidence in 11 countless numbers of family court proceedings. 12 And there was -- not only was there no 13 system to review it, but you couldn't report anything he 14 said within those family proceedings, because they have 15 absolute privacy laws. So they -- they -- there -- so 16 there are issues, for example, as to whether family 17 proceedings should be allowed in public, but with 18 anonymity preserved. 'Cause at the moment, you -- of 19 course, the public can't even sit in and watch the 20 proceedings. 21 And that is a debate that is beginning to 22 develop in -- in England. So that if a pathologist, for 23 example, is called by the Court, and he is the only 24 witness and he, like any other -- the -- the 25 pediatrician, whatever -- gives their opinion, there is
1221 no way, at the moment, of challenging that because he is 2 a sole expert and it's -- it's done in private. 3 MS. SUZAN FRASER: All right. And, so, 4 in the United Kingdom, there hasn't been a systemic 5 answer to this question. There's an issue that's raised 6 -- 7 DR. CHRISTOPHER MILROY: It's an issue 8 that's been raised, and I believe it's ongoing. 9 MS. SUZAN FRASER: All right. 10 COMMISSIONER STEPHEN GOUDGE: You're 11 running out of time, Ms. Frazer. 12 MS. SUZAN FRASER: All right. Those are 13 my questions, Mr. Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: Perfect. 15 MS. SUZAN FRASER: Thank you. 16 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 17 Fraser. Ms. Ritacca...? 18 19 CROSS-EXAMINATION BY MS. LUISA RITACCA: 20 MS. LUISA RITACCA: I have a very short 21 walk to the podium. Good morning, gentlemen. 22 DR. JACK CRANE: Good morning. 23 DR. CHRISTOPHER MILROY: Good morning. 24 DR. JOHN BUTT: Good morning. 25 MS. LUISA RITACCA: Good afternoon,
1231 actually. My name is Luisa Ritacca and I am one of the 2 counsel here on behalf of the Office of the Chief Coroner 3 for Ontario. And, in my twenty (20) minutes allotted 4 time, I'd like to cover six (6) discrete issues with you. 5 And Dr. Butt, I'd like to start with you, 6 if I might. And, sir, you testified in-chief and in- 7 examination by Ms. Langford about the coroner's office 8 forms 12 and 14 that were used by Dr. Smith and other 9 pathologists in the many cases that you reviewed. 10 And in your testimony, you were concerned, 11 in particular, that these forms didn't provide enough 12 space for the pathologist to either elaborate on his or 13 her opinion or, in -- in particular, you said there 14 wasn't enough space to list who was present at the 15 autopsy. 16 You made reference to both of those 17 things, you recall that, sir? 18 DR. JOHN BUTT: I do. 19 MS. LUISA RITACCA: Okay. And I'd take 20 you to one (1) of those reports that you reviewed with 21 Ms. Langford, and that's at -- I believe it's at Tab 26 22 of your binder. I don't have a volume number. Is the -- 23 MR. MARK SANDLER: That's just Dr. Butt's 24 binder. 25 MS. LUISA RITACCA: Dr. -- okay, it's
1241 called Dr. Butt's Binder, Tab 26, PFP003199, Mr. 2 Commissioner -- Mr. Registrar. And this is the report of 3 post-mortem examination prepared by Dr. Rasaiah in the 4 Valin case? 5 DR. JOHN BUTT: Yes. 6 MS. LUISA RITACCA: Well, that's the 7 wrong number, Mr. Registrar. It's -- 8 COMMISSIONER STEPHEN GOUDGE: 003199. 9 10 CONTINUED BY MS. LUISA RITACCA: 11 MS. LUISA RITACCA: -- 99. There we go, 12 thank you. And first, if we can look at item Number 2, 13 it says, "Identification", and on the screen it's not 14 very good, I confess, but it says under Identification: 15 "The body was identified to me by tag 16 tied to the right ankle with the name 17 Valin. In the presence of..." 18 And it lists a number of people. Do you 19 see that? 20 DR. JOHN BUTT: I do, yes. 21 MS. LUISA RITACCA: Now, I took this to 22 mean that those people were, at least, some of the people 23 present at the autopsy. Is that a fair assumption for me 24 to make? 25 DR. JOHN BUTT: I don't think it is, no,
1251 though it may be in this case, but the section of the 2 form is meant to ratify the identification procedure if 3 it's being done on the basis of, for example, a relative 4 saying the -- the name of that person. 5 I don't think the se -- the section is 6 identified explicitly as anything more than that. It has 7 to do simply with the identification process, as I would 8 read it. 9 MS. LUISA RITACCA: All right. And -- 10 DR. JOHN BUTT: I could be wrong about 11 that. 12 MS. LUISA RITACCA: Okay. I -- I don't 13 want to second guess what your view is on that, but if we 14 could very quickly turn then to the Valin overview 15 report, which is at PFP144327. And I understand that's 16 in a separate binder, not tabbed, if you want to see it 17 in paper form. 18 And, Mr. Registrar, if we could go to page 19 12, paragraph 32. It says: 20 "Dr. B. Rasaiah, the hospital 21 pathologist, performed the autopsy on 22 June 27, 1993 starting at 12:35. Jim 23 Corelli, pathology assistant, Tammy 24 Weir, pathology assistant, Constable 25 Terry Biocchi, Sergeant Welton, and
1261 Constable Martynuck attended the 2 autopsy." 3 Do you see that, sir? 4 DR. JOHN BUTT: I do, yes. 5 MS. LUISA RITACCA: You have no reason to 6 dispute the accuracy of what's contained in the overview 7 report? 8 DR. JOHN BUTT: No. 9 MS. LUISA RITACCA: And if I can take you 10 back to the -- Dr. Rasaiah's report of post-mortem. 11 Again, Mr. Registrar, it's found at 12 003199. 13 As I read the section under Number 2, 14 "Identification", it appears that the people named there 15 are the people that were present at the autopsy, so, for 16 example, Jim Corelli, Tammy Weir, they were pathology 17 assistants, according to the overview report? 18 DR. JOHN BUTT: Yes. 19 MS. LUISA RITACCA: Okay. So you'd agree 20 with me that it would seem from this that Dr. Rasaiah 21 knew to list those present at the autopsy, and that he 22 used that section of the form to -- to do so? 23 DR. JOHN BUTT: I have no problem with 24 that in this instance. That's an assumption, but I have 25 no problem with it. But again, I would say that it's not
1271 distinctive and the section is entitled "Identification" 2 and under the circumstances the morgue technologist would 3 not be commonly involved in that process. 4 MS. LUISA RITACCA: Right. So -- 5 DR. JOHN BUTT: What I spoke to was the 6 issue of a list of people who were present at the 7 autopsy. 8 MS. LUISA RITACCA: Right. 9 DR. JOHN BUTT: These people may very 10 well have been present, but that's not what this section 11 of the form is about. 12 MS. LUISA RITACCA: That's not what you 13 understand the section to be about, is that fair? 14 DR. JOHN BUTT: Well, then there needs to 15 be more instruction then on the form, and that's the 16 problem with pro formas. 17 MS. LUISA RITACCA: And, sir, I'd like to 18 take you now to page 6 of that report. Mr. Registrar, if 19 we could go to page 6? 20 I believe Ms. Langford took you to the end 21 of this document, but I don't think that you addressed 22 the notes section, which is already highlighted in fact. 23 The note I'm interested in is note 3. It 24 says: 25 "If more space is required for the
1281 detailed description of important 2 conditions, use the space indicated 3 above or attach hereto a separate sheet 4 giving the number of the section to 5 which reference is made." 6 Do you see that? 7 DR. JOHN BUTT: I do. 8 MS. LUISA RITACCA: And so, would you 9 agree with me that there's nothing in the report that 10 restricts the pathologist from providing information that 11 -- beyond that which is required by the form? 12 DR. JOHN BUTT: I agree with that. 13 MS. LUISA RITACCA: And, in fact, we see 14 from note 3 spec -- that it, specifically, contemplates 15 that the pathologist may attach additional pages? 16 DR. JOHN BUTT: I -- I understand that, 17 yes. 18 MS. LUISA RITACCA: All right. And to 19 just illustrate that, if we turn to the next page, page 20 7, which I don't think you were taken to Dr. Rasaiah did, 21 in fact, add more pages to his report. 22 And perhaps, Registrar, we can just slowly 23 go to the next page as well and the next page. So he's 24 included his sketches as I understand them. Go to the 25 next page. More sketches -- the next page.
1291 And he seems to have attached the x-ray 2 report as well, do you see that? 3 DR. JOHN BUTT: I do. 4 MS. LUISA RITACCA: Okay. So you'd agree 5 that Dr. Rasaiah was not limited by the form that he was 6 required to use in preparing this report? 7 DR. JOHN BUTT: I would agree. 8 MS. LUISA RITACCA: Thank you. And on 9 this same topic, Dr. Butt, in -- in your testimony in 10 answer to a suggestion by Ms. Langford that a 11 recommendation from this Commission for more elaborate 12 reports would be a departure from what we currently have 13 in Ontario. 14 You replied, "Yes, it would be." Do you 15 recall giving that answer, sir? 16 DR. JOHN BUTT: Would you give me the 17 question again, please? 18 MS. LUISA RITACCA: Ms. Langford put a 19 suggestion to you that a recommendation by this 20 Commissioner for a more elaborate report in Ontario would 21 be a departure from what is currently being used in 22 Ontario. 23 And you replied, "Yes, it would be." 24 DR. JOHN BUTT: Yes. And that's correct. 25 That's -- that's my opinion.
1301 MS. LUISA RITACCA: So the implication of 2 your answer, sir, was that these forms or forms like 3 these were still in use in Ontario? 4 DR. JOHN BUTT: Yes. 5 MS. LUISA RITACCA: All right. Now 6 yesterday, in fairness, Ms. Langford informed the 7 Commissioner that according to her research, which is the 8 same as my understanding, form 14 or it predecessor form 9 12, haven't been part of the regulations under the 10 Coroners Act since 1999. 11 You have no reason to dispute that 12 information? 13 DR. JOHN BUTT: No. 14 MS. LUISA RITACCA: And in addition to 15 this, Dr. Butt, I anticipate that there will be evidence 16 from Dr. Pollanen, and likely others, that, in fact, form 17 or template post-mortem reports are no longer in use in 18 Ontario. 19 And would you have any reason to dispute 20 that? 21 DR. JOHN BUTT: No. 22 MS. LUISA RITACCA: And I further 23 anticipate that there will be evidence from Dr. Pollanen, 24 and some of this evidence is already in the database 25 under Dr. Pollanen's most recent guidelines, that
1311 pathologists in Ontario are encouraged, in fact, to 2 include narrative sections in their reports, wherein they 3 could provide explanations for their opinions. 4 And would you have any reason to dispute 5 that? 6 DR. JOHN BUTT: No, I wouldn't. 7 MS. LUISA RITACCA: Thank you, Dr. Butt. 8 Dr. Milroy, I'd to turn my attention to you for a moment, 9 if I can. And I'd ask you to go to Tab 43 of Volume 2 of 10 your documents, and that is PFP135481, and I hope that's 11 the medico-legal report of the Tiffany case. 12 Do you have that, sir. And -- 13 DR. CHRISTOPHER MILROY: I'm looking at 14 it on the screen. 15 MS. LUISA RITACCA: All right. Thank 16 you. If we could go, Mr. Registrar, to the bottom of 17 page 7 of that report. Oh, perhaps it's page 6 on the 18 screen, I'm sorry about that. 19 20 (BRIEF PAUSE) 21 22 MS. LUISA RITACCA: Could you go to the 23 next page? 24 COMMISSIONER STEPHEN GOUDGE: Go to the 25 next. You want to go to the --
1321 MS. LUISA RITACCA: The next one (1) 2 please, yes. 3 COMMISSIONER STEPHEN GOUDGE: Page 7. 4 MS. LUISA RITACCA: So I was right. 5 COMMISSIONER STEPHEN GOUDGE: Well, I 6 just said page 7. 7 MS. LUISA RITACCA: I don't -- I'm 8 looking -- I just want to make sure we're looking at the 9 right thing on the screen. Go to the next -- 10 COMMISSIONER STEPHEN GOUDGE: What's the 11 heading you want us to look at? 12 MS. LUISA RITACCA: Historical Note, 13 Issues Raised by the Case. Number 4, Historical Note. 14 15 (BRIEF PAUSE) 16 17 MS. LUISA RITACCA: Like -- right -- 18 okay, now move the page up perhaps? Okay. I need the 19 bottom of page 6. 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 MS. LUISA RITACCA: Yeah, on the screen. 22 COMMISSIONER STEPHEN GOUDGE: Yes, one 23 (1) back. 24 MS. LUISA RITACCA: Thank you. 25 COMMISSIONER STEPHEN GOUDGE: Go --
1331 MS. LUISA RITACCA: If you could just 2 move the page down. 3 COMMISSIONER STEPHEN GOUDGE: Yes. 4 MS. LUISA RITACCA: Just move the page 5 all the way down. Oh... 6 COMMISSIONER STEPHEN GOUDGE: Next page. 7 MS. LUISA RITACCA: It appears there's a 8 page missing on the... 9 COMMISSIONER STEPHEN GOUDGE: The name of 10 the case, or the next page. No, next page forward. 11 MS. LUISA RITACCA: Page 7. 12 COMMISSIONER STEPHEN GOUDGE: Page 7. 13 MS. LUISA RITACCA: Yeah, there's a page 14 missing. 15 COMMISSIONER STEPHEN GOUDGE: Yes, 16 there's a page missing. 17 MS. LUISA RITACCA: Okay. I'll just read 18 it out then, if -- 19 COMMISSIONER STEPHEN GOUDGE: There's a 20 prize for this, Ms. Ritacca. 21 22 CONTINUED BY MS. LUISA RITACCA: 23 MS. LUISA RITACCA: Dr. Milroy, for the 24 benefit of everyone else in the room, I'll just read out 25 what I'm interested --
1341 DR. CHRISTOPHER MILROY: Yes. 2 MS. LUISA RITACCA: -- in, and it's under 3 your Issues Raised by the Case, Item number 4, Historical 4 Note, you write: 5 "Protocols were being developed in the 6 1990s for the investigation of sudden 7 death in infancy and these may not have 8 been in force when this autopsy was 9 performed, and the number of tests 10 conducted on a case such as this would 11 be much more extensive in 2007". 12 Do you see that, sir? 13 DR. CHRISTOPHER MILROY: Yes. 14 MS. LUISA RITACCA: And my question to 15 you, Dr. Milroy, is: Do you have any understanding or 16 knowledge of why these types of protocols and standards 17 of practice with regard to child autopsies became more 18 prevalent in the early to mid '90s? Do you have any 19 sense of that? 20 DR. CHRISTOPHER MILROY: Well, I -- I 21 think it was just that as people realized that -- that 22 there were -- there was a requirement for more 23 comprehensive examination of children, and people added - 24 - or pathologists added tests. 25 See, if -- if we compare them with an
1351 adult, when you do an adult, you traditionally do an 2 external examination, you do an internal examination, and 3 you do histology and you do toxicology. But you don't 4 normally do genetic testing, you don't do microbiology. 5 Those things were realized may be 6 important in childhood deaths, especially. And so as -- 7 as people began to publish research papers saying you 8 should be looking for this, that fed into the protocols. 9 So that's why they developed. 10 MS. LUISA RITACCA: Great. And do you 11 have a sense of, and this may be the same question, and 12 you'll let me know if it is, but do you have a sense of 13 why people's understanding about doing additional testing 14 for children is evolving at this time? 15 DR. CHRISTOPHER MILROY: Well I think, as 16 I say it's just -- as people publish research showing 17 that, you know, this was a cause of death that you have 18 to look for specifically, and is not available on 19 histology, for example, then you have to add that to your 20 tests. 21 MS. LUISA RITACCA: And is it fair to 22 say, sir, that at this time there was a growing 23 understanding with respect to child abuse and child -- 24 suspicious child deaths? 25 DR. CHRISTOPHER MILROY: I think with
1361 some of the cases that we've looked at, for example, 2 Jenna. You don't need to place that in historical 3 context. That would have been child abuse in whichever 4 decade it had been done. 5 But I accept that there's been an evolving 6 literature on Shaken Bab -- so-called Shaken Baby 7 Syndrome, for example. 8 MS. LUISA RITACCA: Right. Okay. And I 9 understand from some of the answers you gave to the 10 Commissioner yesterday, in fact, that your -- you and 11 your pathologists follow a pro -- a protocol with respect 12 to child investigations and child deaths? 13 DR. CHRISTOPHER MILROY: We do. 14 MS. LUISA RITACCA: And could you briefly 15 describe that protocol for us? 16 DR. CHRISTOPHER MILROY: Well, it's about 17 seventy (70) pages long, so -- 18 MS. LUISA RITACCA: Okay. 19 DR. CHRISTOPHER MILROY: -- but, I mean, 20 it involves -- certainly in terms of the pathologist, it 21 involves radiology; it involves, obviously, external 22 examination, internal examination; it involves 23 neuropathology, histology, toxicology, biochemistry, 24 microbiology, genetic studies. 25 MS. LUISA RITACCA: And --
1371 DR. CHRISTOPHER MILROY: So a -- a 2 palaclee (phonetic) of tests. 3 MS. LUISA RITACCA: And is it fair for 4 one to assume that the radiology, the microbiology, the 5 genetic testing, and I'm not sure if you said toxicology? 6 DR. CHRISTOPHER MILROY: I did. 7 MS. LUISA RITACCA: And toxicology -- 8 DR. CHRISTOPHER MILROY: Biochemistry -- 9 I mean -- yeah. 10 MS. LUISA RITACCA: All right. Now, are 11 those things that are done and are unique to the child 12 death investigation that aren't done in the adult 13 investigation? 14 DR. CHRISTOPHER MILROY: No. All of them 15 can be done in the adult. They're just not done 16 routinely in the adult. 17 MS. LUISA RITACCA: All right. There's 18 no protocol in an adult death case that requires those to 19 be done? 20 DR. CHRISTOPHER MILROY: There isn't 21 protocols for adult deaths in the way there is -- there 22 are for chil -- childhood deaths. 23 MS. LUISA RITACCA: And -- and I believe 24 in answer to a question yesterday you indicated that the 25 protocols that are in use in your jurisdiction or -- at
1381 least in evolution of the one that you're in -- 2 DR. CHRISTOPHER MILROY: Yeah. 3 MS. LUISA RITACCA: -- in use now were 4 first put in place in the mid 1990s? 5 DR. CHRISTOPHER MILROY: That's right. 6 MS. LUISA RITACCA: Are you able to be 7 more precise than that? 8 DR. CHRISTOPHER MILROY: Well, it's -- 9 you can -- you could -- you could find it, it's called 10 the CESDI, C-E-S-D-I. 11 COMMISSIONER STEPHEN GOUDGE: Sorry, do 12 that again for me? 13 DR. CHRISTOPHER MILROY: CESDI. Sir, 14 it's C-E-S-D-I. And you can find those -- I'm pretty 15 sure they're on the internet, actually. They may even 16 be mentioned within the Kennedy report. I can't -- but 17 that -- that was -- that -- that stands for the 18 Confidential Inquiry into Sudden Deaths in Infancy. 19 And they produced protocols for how to do 20 the examination. And they've been developed individually 21 by departments of pediatric pathology, but then they were 22 published nationally, and they were what we would expect 23 someone to follow. 24 COMMISSIONER STEPHEN GOUDGE: And CESDI 25 is what?
1391 DR. CHRISTOPHER MILROY: Confidential 2 Inquiry into -- 3 COMMISSIONER STEPHEN GOUDGE: No, but -- 4 DR. CHRISTOPHER MILROY: -- Sudden Death 5 in Infancy. It was -- it's a national -- we have a 6 number of confidential inquiry panels -- one (1) into 7 obstetric deaths. 8 And the idea is that these are no-blame 9 organizations, so that you can write confidentially -- 10 COMMISSIONER STEPHEN GOUDGE: Under whose 11 hospices do they operate? 12 DR. CHRISTOPHER MILROY: CESDI, I think 13 was the Department of Health, wasn't it? Yeah, 14 Department of Health. Now, I think that the -- obstetric 15 and maternal deaths is under the Department of Health. 16 And they produce periodic reports. 17 So the idea is that they can look at 18 things with a -- with a no-blame culture; that's why 19 they're called confidential. 20 COMMISSIONER STEPHEN GOUDGE: So they 21 have nothing to do with the licencing body of physicians 22 or -- 23 DR. CHRISTOPHER MILROY: No. 24 COMMISSIONER STEPHEN GOUDGE: -- with the 25 Home Office --
1401 DR. CHRISTOPHER MILROY: No. 2 COMMISSIONER STEPHEN GOUDGE: -- or 3 anything like that. 4 DR. CHRISTOPHER MILROY: No, they're 5 separately -- they're separately constituted. They come 6 out of the Department of Health, and they are panels of 7 people that will investigate child deaths, and they will 8 produce reports. 9 And they -- one (1) of them was -- one (1) 10 of them came out and said, actually, to be fair to our 11 spec -- to -- to the pediatric pathologists -- they said 12 forensic pathologists were not doing these tests as much 13 as pediatric pathologists and that raises a concern. 14 And I think it was of a specific 15 geographic area that wasn't doing them, but, you know, if 16 you're going to do these cases now, you've got to follow 17 the CESDI protocol or -- or the success of the -- the 18 protocol that's basically in the Kennedy report, but it 19 mirrors the CESDI protocol. 20 21 CONTINUED BY MS. LUISA RITACCA: 22 MS. LUISA RITACCA: Thank you. And, Dr. 23 Milroy, I'm not sure if you're aware that in April 1995, 24 the Office of the Chief Coroner introduced a protocol for 25 sudden and unexpected deaths of children under two (2),
1411 are you aware of that? 2 DR. CHRISTOPHER MILROY: I was aware that 3 some form of protocols had been produced, -- 4 MS. LUISA RITACCA: All right. 5 DR. CHRISTOPHER MILROY: -- which is why 6 I made the comment about the mid '90s, yeah. 7 MS. LUISA RITACCA: Okay. I'm just 8 trying to get a sense of what happened in the -- 9 DR. CHRISTOPHER MILROY: Yeah. 10 MS. LUISA RITACCA: -- mid '90s that 11 would be the impetus for all of this. But if I could 12 take you to that protocol, and it's at PHP142286, and I 13 believe it is at Tab 2 of the binder prepared documents 14 to be referred to by the parties. Is that right? 15 DR. CHRISTOPHER MILROY: Sorry, which did 16 you say? Tab 2 or Volume 2? 17 MR. MARK SANDLER: The large one. 18 DR. CHRISTOPHER MILROY: The large one, 19 Volume one. Tab -- Tab 2. 20 MS. LUISA RITACCA: Tab 2, yes. And I'd 21 like to take you to the protocol as it relates to the 22 autopsy, since you're a forensic pathologist, sir. And 23 that's starting at page 4 if you're looking at the paper 24 document. In fact, it's page 6 of the document. 25 Can you take a look, sir -- and I
1421 appreciate this -- I'm asking you to do this quickly. 2 DR. CHRISTOPHER MILROY: Yeah. 3 MS. LUISA RITTACA: At the autopsy proto 4 -- protocols for a moment, and then I'll ask you a 5 question about it? 6 DR. CHRISTOPHER MILROY: Yeah. 7 MS. LUISA RITTACA: And it goes on, I'd 8 like you to go all the way to Page 8 or 6 of the paper 9 copy. 10 DR. CHRISTOPHER MILROY: Yeah. 11 MS. LUISA RITTACA: Now are you able to 12 comment on the requirements for the autopsy as set out 13 therein, in relation to what was expected of you and your 14 pathologists in your jurisdiction in the mid 1990s? 15 DR. CHRISTOPHER MILROY: I'm not sure 16 that we would necessarily agree with some of the comments 17 about the liquid blood and so on, but certainly x-rays. 18 And I can't see where it says about microbiology, 19 certainly would be a very standard thing, and 20 biochemistry was standard. And genetic studies are now 21 standard. MS. LUISA RITTACA: So that seems to be 22 the missing piece in this protocol here. Is that fair? 23 DR. CHRISTOPHER MILROY: I can't see 24 microbiology listed here. 25 MS. LUISA RITTACA: Yeah, I don't think
1431 you're gonna see it. 2 DR. CHRISTOPHER MILROY: All right, okay. 3 Well, that's helpful. 4 COMMISSIONER STEPHEN GOUDGE: Would you 5 have had it in the mid '90s? 6 DR. CHRISTOPHER MILROY: Yes. 7 MS. LUISA RITTACA: Thank you, Dr. 8 Milroy. Dr. Crane, I'm going to turn to you for a 9 moment, and this was addressed in part this morning, so 10 I'll try not to repeat those who came before me. But -- 11 COMMISSIONER STEPHEN GOUDGE: You're 12 watching the clock, Ms. Rittaca? 13 MS. LUISA RITTACA: I am, okay. You 14 spoke about Court monitoring and you said in direct 15 examination that -- as I understand Northern Ireland, the 16 new pathologist is required to take a two and a half (2 17 1/2) day course on giving testimony. Is that right? 18 DR. JACK CRANE: It -- it's actually it's 19 a Home Office requirement, although -- my trainee has 20 just completed it. And to go on the Home Office list, 21 all newly trained pathologists have to undergo a two (2) 22 day training called Criminal Justice Interface Training. 23 And at that, they have to produce -- 24 provide reports and they're cross-examined in those 25 reports. And they have to pass that training before they
1441 would get on the Home Office list. 2 MS. LUISA RITTACA: And ū 3 DR. CHRISTOPHER MILROY: Perhaps it 4 should be said that that training is also given to 5 forensic scientists as well. 6 MS. LUISA RITTACA: Thank you. 7 DR. CHRISTOPHER MILROY: The courses run 8 parallel. 9 MS. LUISA RITTACA: And other than that, 10 and I think you told My Friend this morning that the rest 11 of the core process is really an informal process, an ad 12 hoc process. 13 Is that fair? 14 DR. JACK CRANE: That's correct. 15 MS. LUISA RITTACA: All right. My 16 question to you is, if you are in attendance while one of 17 your junior pathologists, for example, is giving 18 evidence, and you happen to disagree with either how the 19 opinion is being presented, or the opinion itself, what 20 steps, if any, do you take? 21 DR. JACK CRANE: Yes, well, I would 22 certainly hope they don't give -- certainly as regards 23 the junior staff, all their reports have to be seen by me 24 before they go out of the department or one of my 25 consultant colleagues.
1451 So I would hope that nothing would go out 2 that I would -- I would disagree with. But if something 3 did go out that I disagreed with, and this applies even 4 to my other consultant colleagues, it's our duty -- we're 5 bound to -- we would have to write a report saying we -- 6 we've seen this, but we disagree with it. 7 I mean I think, we all have a duty in -- 8 in this respect. And we'd be expected to do that. In 9 other words, if we knew that there was something that had 10 been wrong, we have a duty to ensure that that's brought 11 to the attention of the authority. 12 MS. LUISA RITTACA: And -- and by 13 attention of the authorities, you mean you would tell the 14 Crown and the Defence in the case that you were watching. 15 DR. JACK CRANE: You'd probably tell the 16 Crown, and maybe have to write a report saying, I've 17 looked at this report, I'm not happy with it, I -- I 18 disagree with these -- these findings. 19 MS. LUISA RITTACA: And the same if 20 you've had the opportunity to watch evidence that you 21 didn't dis -- agree with? 22 DR. JACK CRANE: Yes, it's -- it's more 23 difficult perhaps with evidence, but if it's just a 24 slight difference of opinion, I don't think that we would 25 worry too much. But if clearly, somebody's giving
1461 evidence and saying, Well, this chap was shot three (3) 2 times, and my view is that they were stabbed three (3) 3 times, I mean one would have no -- no other choice but to 4 say, you know, I disagree with this strongly, that 5 there's an error here. 6 COMMISSIONER STEPHEN GOUDGE: How would 7 you do that? 8 DR. JACK CRANE: Again, contacting the 9 Crown and -- and -- 10 COMMISSIONER STEPHEN GOUDGE: And it is 11 tricky, because you are then injecting yourself into the 12 criminal justice process in real time. 13 DR. JACK CRANE: The difficulty is that 14 if you are made aware of something, you can't pretend 15 that you -- you were not made aware of it, Commissioner 16 so -- and you have a responsibility to ensure that the 17 proper authorities are informed. 18 DR. CHRISTOPHER MILROY: We have had 19 people write to the judge saying, I've given -- in my 20 written statement, I now -- expressed views I no longer 21 believe. 22 And that's happened once or twice, when 23 they've actually written to the trial judge. 24 COMMISSIONER STEPHEN GOUDGE: While the 25 case is going on?
1471 DR. CHRISTOPHER MILROY: And they've had 2 one (1) while the case is going on, yes. 3 4 CONTINUED BY MS. LUISA RITACCA: 5 MS. LUISA RITACCA: Mr. Commissioner, if 6 I might, I have just one (1) more area to cover and I 7 think you'll be interested in it. 8 Dr. Milroy and Dr. -- 9 COMMISSIONER STEPHEN GOUDGE: With that 10 enticement, I'll agree. 11 12 CONTINUED BY MS. LUISA RITACCA: 13 MS. LUISA RITACCA: Dr. Milroy and Crane, 14 you describe the use of and the benefit of double- 15 doctoring, in particular, on these difficult pediatric 16 forensic cases. And -- and as I understood your 17 evidence, depending on the nature of the case, the 18 forensic pathologist may take the lead in the autopsy, or 19 the pediatric pathologist may take the lead. 20 But I think I heard you say that, ideally, 21 it -- it would be best if both were present in the room 22 during the autopsy -- while not always possible. 23 I just want to get a sense of how that 24 works, practically. So, in the situation where both 25 pathologists are present in the autopsy room and at
1481 autopsy, who signs the report? 2 DR. JACK CRANE: We both sign the report. 3 When I -- I mentioned that we do all our baby deaths 4 jointly, we have to both be there. We -- we can't sign a 5 report unless we have actually been there. So, 6 physically, we're both there. 7 And what sometimes will be done is that I 8 will take the lead and, therefore, I will do the 9 evisceration. In fact, I always do the evisceration. 10 But, perhaps, the examination of the internal organs -- I 11 will stand back and let the pediatric pathologist do the 12 cutting of the organs. 13 We review the histology slides together. 14 We review all the other material together. We produce a 15 joint report which we both must sign. 16 If we disagree -- and -- and we have a 17 protocol on this -- if we disagree, as has happened on -- 18 on one (1) occasion, then we will write a separate 19 commentary -- a separate report -- and that will be 20 signed by each of us, separately, and both reports will - 21 - will be submitted. 22 MS. LUISA RITACCA: And, I'm sorry, did 23 you say you have a protocol on that, when you -- 24 DR. JACK CRANE: Yes, we have. 25 MS. LUISA RITACCA: -- when you disagree?
1491 2 DR. JACK CRANE: Yes. What we find -- 3 or, we developed it because we found the pediatric 4 pathologists were sometimes difficult to pin down. So we 5 felt it was better to have everything in writing, and 6 then we all knew exactly where our positions were; what 7 we were expected to do. 8 DR. CHRISTOPHER MILROY: So we don't 9 necessarily follow that -- 10 MS. LUISA RITACCA: Oh, and what do you 11 do, Doctor? 12 DR. CHRISTOPHER MILROY: -- structure. 13 MS. LUISA RITACCA: All right. 14 DR. CHRISTOPHER MILROY: Well, I -- it 15 depends on the case. For example, I recently had a rape 16 homicide of a child just over two (2), but the police 17 were keen to -- because at the start, it wasn't 18 absolutely sure what was going on. That was how it was 19 presented to me, and that the police wanted a pediatric 20 pathologist to be present. 21 I have to say that I didn't really feel 22 the nec -- necessity for one, and in that case, I 23 actually -- while stated, the dissection of some of the 24 organs, not all -- I actually just produced the report, 25 but said that they were present during my examination,
1501 and I observed everything. 2 In other cases, if they take the lead, I 3 sometimes get them to produce a report first if it's 4 going to be written as natural, and then I sign a second 5 statement saying that I have read and agree with the 6 findings of the first person. 7 I'm not absolutely sure, in English law, 8 whether two (2) people can actually sign a statement. I 9 -- I think that technically it's arguable that you can't 10 do that. And so each would have to produce a separate 11 statement. 12 MS. LUISA RITACCA: And so -- 13 COMMISSIONER STEPHEN GOUDGE: Sorry -- 14 MS. LUISA RITACCA: Yes. 15 COMMISSIONER STEPHEN GOUDGE: -- sorry, 16 Ms. Ritacca. Dr. Crane, just so I understand; the 17 double-doctoring that you say you must undertake for a 18 death under two (2), that's every suspicious death under 19 two (2)? 20 DR. JACK CRANE: It's every death -- not 21 just the suspicious ones, but it's every death. 22 COMMISSIONER STEPHEN GOUDGE: Okay. You 23 don't have such a requirement, Dr. Milroy. 24 DR. CHRISTOPHER MILROY: No. I mean, 25 it's -- it's only, in any case, a -- a protocol. It's
1511 not, of course, enshrined in law in the way, for example, 2 it is in Scotland. So, I -- I would say that the 3 majority of -- well, of -- of what -- deaths where 4 there's no suspicion, as I've -- we've already announced 5 -- most deaths in children under two (2) are not 6 suspicious. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 DR. CHRISTOPHER MILROY: A pediatric 9 pathologist will do that on their own without input from 10 a forensic pathologist. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. CHRISTOPHER MILROY: But, obviously, 13 in the cases which are suspicious, not only am I present, 14 but I take -- I regard it -- I -- I regard myself as the 15 lead pathologist. 16 COMMISSIONER STEPHEN GOUDGE: Right. Why 17 all cases in Northern Ireland, Dr. Crane? 18 DR. JACK CRANE: Well, I just think it's 19 good practice. 20 COMMISSIONER STEPHEN GOUDGE: It's 21 resource intensive. 22 DR. JACK CRANE: And it is, but I mean 23 we're -- we're not getting a huge number of these cases 24 and we're not getting hundreds every year. 25 COMMISSIONER STEPHEN GOUDGE: Right.
1521 DR. JACK CRANE: And -- and we think it's 2 best practice that we both do and we both have expertise 3 in different areas. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. CHRISTOPHER MILROY: I think you've 6 also got to refer to the English on this one (1), that 7 no -- 8 COMMISSIONER STEPHEN GOUDGE: We don't 9 want to create any conflict. 10 DR. CHRISTOPHER MILROY: Well, is a -- 11 there's a single geographical entity where all the bodies 12 are brought to Belfast. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. CHRISTOPHER MILROY: That doesn't 15 happen in England where you've got -- they're -- they're 16 one (1) coroner's jurisdiction where now we've got a 17 hundred and twenty-two (122) coroner's jurisdictions in 18 England. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 Thanks, Ms. Ritacca. 21 22 CONTINUED BY MS. LUISA RITACCA: 23 MS. LUISA RITACCA: No problem. And I 24 think I understand this, but -- how this would work in 25 Northern Ireland because you, Dr. Crane, you've
1531 identified that you produce one (1) report, you sign -- 2 you both sign it and in the event of disagreement 3 there'll be two (2) reports. 4 But Dr. Milroy, if there is disagreement 5 in the case where just you're signing, and perhaps the 6 pediatri ū the pediatric pathologist had different views, 7 how does his or her different views get transmitted to 8 people, for example, in the criminal justice process? 9 DR. CHRISTOPHER MILROY: Well, if there 10 was a difference of opinion I would tell them to write 11 the report and send it separately and the police -- the 12 police and the coroner's office are -- are present at 13 these examinations and that difference should be 14 communicated, and if it comes after further examination, 15 for example, I would make it quite clear if it didn't 16 agree with me, then that's fine, but you've got to then 17 separately in writing produce your own statement. 18 MS. LUISA RITACCA: Thank you, doctors. 19 Commissioner, those are my questions. 20 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 21 Ritacca. 22 Mr. Sandler, I take it that your next and 23 last. Ms. Twohig, you have no questions? 24 MS. KIM TWOHIG: That's right, Mr. 25 Commissioner.
1541 COMMISSIONER STEPHEN GOUDGE: And, Mr. 2 Lomer, you have no questions? 3 MR. MICHAEL LOMER: No, Mr. Commissioner. 4 COMMISSIONER STEPHEN GOUDGE: Mr. 5 Sandler...? 6 7 RE-DIRECT EXAMINATION BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Yes, I'll be very 9 brief, Commissioner. I just wanted to ask you briefly 10 about two (2) areas, and my questions will be directed 11 largely, if not exclusively, to Professor Milroy. 12 Just dealing with the last topic first, 13 the double-doctoring, you made reference to the fact that 14 in Scotland it is statutorily required that two (2) 15 pathologists conduct the autopsy, and -- and drawing upon 16 your breadth of knowledge, both as a forensic pathologist 17 and as a lawyer, that -- that arises out of the 18 requirement for corroboration in Scotland, as opposed to 19 medicolegal considerate -- medical considerations. 20 Am I right as to that? 21 DR. CHRISTOPHER MILROY: Two (2) points; 22 one (1) is I'm not -- I think it's actually from the 23 Scottish common law, that it's a stat -- statutory 24 requirement. I can always object to being called a 25 lawyer. I have a law degree; I'm not a lawyer, but it
1551 is. 2 Scottish law has a -- has a -- has a very 3 strict law of corroboration so that for the prosecution 4 they have to have every piece of evidence corroborated, 5 so that means, you know, two (2) people have got to read 6 the speedometer in a speeding case and so on. 7 It was always said that if you could pass 8 a police officer in a car, if he was on his own he 9 couldn't book you for speeding because he'd have to have 10 a colleague to agree that you were speeding. 11 That's a tip for Scotland, but don't do it 12 now because they can use the camera as corroboration. 13 But that's -- yeah, it's -- and that comes from 14 corroboration, so that -- that -- if you like, that -- 15 that legal requirement to have two (2) people fits very 16 nicely into the pediatric deaths because then they can 17 have a forensic pathologist and a pediatric pathologist 18 doing them. 19 MR. MARK SANDLER: But the reality, that 20 means in Scotland, as you understand it, two (2) 21 pathologists must perform even adult autopsies. 22 DR. CHRISTOPHER MILROY: Every hom -- 23 every suspicious death autopsy -- 24 MR. MARK SANDLER: Right. 25 DR. CHRISTOPHER MILROY: -- has to be
1561 performed by two (2) doctors. The cynics from England 2 say it's the guarantee that one (1) can read and one (1) 3 can write, but the -- that -- that is actually the law. 4 MR. MARK SANDLER: All right. 5 DR. CHRISTOPHER MILROY: Yeah, it's very 6 labor intensive and I've heard -- I -- I was on a meeting 7 and -- and a regional fiscal there said he never really 8 quite understood why we insist upon it, but it is -- it 9 is a legal requirement. 10 MR. MARK SANDLER: Okay. The second area 11 that I wanted to ask you about arises out of some 12 questions on defence access to materials relied upon by 13 the forensic pathologist. 14 Can you explain to the Commissioner how 15 the disclosure process works whereby either your notes 16 or, for example, the histology are provided because, as 17 you've seen from some of the overview reports, one (1) of 18 the issues that arises here is how the defence accessed 19 in a timely way materials that the forensic pathologist 20 relied upon? 21 DR. CHRISTOPHER MILROY: Well, the -- the 22 normal way it happens is that I get a request through -- 23 either through the Crown Prosecution Service to provide 24 my notes; that's usually where the notes bit comes from, 25 but often the solicitor that's acting on behalf of the
1571 defendant will write directly to the laboratory if they 2 require histology slides and we will provide them. 3 And if we don't provide them, they will 4 then go to the Judge and complain. So, it's usually done 5 on a direct application by the solicitors acting on 6 behalf of the defendant. 7 MR. MARK SANDLER: And is -- are there 8 any continuity issues that are raised by virtue of the 9 direct provision of histology to the defence? 10 DR. CHRISTOPHER MILROY: No, well, I 11 mean, there are -- there's -- there's proof of continuity 12 in the sense that, you know, your -- your slides will be 13 labelled with a -- with a unique number. And I tell my 14 secretaries, unlike our Government to send things by 15 recorded delivery, there was a -- well, if you don't know 16 -- 25 million people's data was sent in the post, 17 unrecorded, and has got lost. So I -- I try and send the 18 stuff so that there is a, you know, we've got a record of 19 posting and a record of receipt. 20 MR. MARK SANDLER: And I gathered, from 21 something that you'd said earlier to the Commissioner, in 22 the event that, for example, the defence or a defence 23 pathologist were to lose the histology, they can be 24 recut, I take it. 25 DR. CHRISTOPHER MILROY: They can be
1581 recut. I have had occasion where, in fact, one (1) 2 person got awkward and refused to release the slides. 3 And we actually had to write to the judge and say, you 4 know -- they said, Come to the laboratory and look at 5 them. And we said, That's just not the way you do it. 6 You know, you need time to consider this. You can't just 7 turn up for half (1/2) an hour, look at it and then go 8 away. 9 And we just felt that person was being 10 unreasonable. There are occasional cases where you have 11 historic material, you know, where you've only got 12 slides. The blocks have been lost. That happened in one 13 (1) case and we all agreed that we would gather. 14 But, ordinarily, for histology, you just 15 cut another section because the sections are 4 microns 16 thick; that means four thousandths (4/1000) of a 17 millimetre -- I think that's right -- and it's in a block 18 of tissue. You can -- you could cut hundreds of slides 19 without having a problem. 20 So, if someone said -- and it occasionally 21 happens -- if -- if, for example, we had to send slides 22 to two different sets of defendants, we'd just cut two 23 (2) sets. 24 MR. MARK SANDLER: And are there also 25 provisions under the disclosure manual for the
1591 preservation of untested materials? 2 DR. CHRISTOPHER MILROY: We have to -- 3 yes. We have to disclose -- we have to make a record of 4 what we have but haven't looked at. So the police, for 5 example -- this is the point about swabs -- they often 6 will take swabs, but not send them, because there isn't, 7 for example, any evidence of a sexual motive. But -- so 8 the police will -- will retain them, and if the defence 9 said, Well, we'd like to test them, then they can be made 10 over to the defence to test. 11 MR. MARK SANDLER: All right. Thank you 12 very much, Professor Milroy and thanks to you all. 13 DR. CHRISTOPHER MILROY: Thank you. 14 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 15 Sandler. Well, the week has concluded, gentlemen. It 16 remains for me to thank you for the extraordinary and 17 valuable information you've given to us, and we are very 18 grateful for the time and the thought you've put into the 19 week. So, thank you very much. 20 DR. CHRISTOPHER MILROY: Thank you. 21 COMMISSIONER STEPHEN GOUDGE: And we wish 22 you a safe journey home. 23 DR. CHRISTOPHER MILROY: Thank you. 24 25 (WITNESSES STAND DOWN)
1601 COMMISSIONER STEPHEN GOUDGE: We will 2 rise now until Monday at 9:30. We have a busy week next 3 week. We will work hard, so come prepared 9:30 on 4 Monday. 5 6 --- Upon adjourning at 12:43 p.m. 7 8 9 10 Certified Correct, 11 12 13 ___________________ 14 Rolanda Lokey, Ms. 15 16 17 18 19 20 21 22 23 24 25