1
  1  
  2  
  3               THE INQUIRY INTO PEDIATRIC FORENSIC
  4                      PATHOLOGY IN ONTARIO
  5  
  6  
  7  
  8                   ********************
  9  
 10  
 11  BEFORE:        THE HONOURABLE JUSTICE STEPHEN GOUDGE,
 12                 COMMISSIONER
 13  
 14  
 15  
 16  Held at:
 17                      Offices of the Inquiry
 18               180 Dundas Street West, 22nd Floor
 19                         Toronto, Ontario 
 20  
 21  
 22                   ********************
 23  
 24                    November 23rd, 2007
 25  

2
  1                        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           )

3
  1                   APPEARANCES (CONT'D)
  2  James Lockyer              )     William Mullins-Johnson, 
  3  Alison Craig               )     Sherry Sherret-Robinson and
  4  Phil Campbell    (np)     )     seven unnamed persons
  5  
  6  Peter Wardle               )     Affected Families Group
  7  Julie Kirkpatrick          )
  8  Daniel Bernstein (np)     )
  9  
 10  Louis Sokolov              )     Association in Defence of
 11  Vanora Simpson    (np)    )     the Wrongly Convicted
 12  
 13  Jackie Esmonde    (np)     )     Aboriginal Legal Services 
 14  Kimberly Murray  (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  

4
  1                   APPEARANCES (cont'd)
  2  
  3  Natasha Egan               )     College of Physicians and 
  4  Carolyn Silver   (np)     )     Surgeons
  5  
  6  Michael Lomer              )     For Marco Trotta
  7  
  8  
  9  
 10  
 11  
 12  
 13  
 14  
 15  
 16  
 17  
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25  

5
  1                   TABLE OF CONTENTS
  2                                                       Page No.
  3  
  4  CHRISTOPHER MARK MILROY, Resumed
  5  JACK CRANE, Resumed
  6  JOHN BUTT, Resumed
  7  
  8   Continued 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  

6
  1  --- 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.

7
  1                 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.

8
  1                 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

9
  1  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, 

10
  1  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

11
  1  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,

12
  1  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,

13
  1  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

14
  1  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

15
  1  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?

16
  1                 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

17
  1  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.

18
  1                 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

19
  1  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?

20
  1                 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

21
  1  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

22
  1  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

23
  1  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,

24
  1  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

25
  1  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

26
  1  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

27
  1  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

28
  1  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 --

29
  1                 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. 

30
  1  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

31
  1  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

32
  1  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.

33
  1                 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

34
  1  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."

35
  1                 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

36
  1  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

37
  1  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

38
  1  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

39
  1  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,

40
  1  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

41
  1  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

42
  1  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

43
  1  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

44
  1  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?

45
  1                 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

46
  1                   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 --

47
  1                 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?

48
  1                 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. 

49
  1  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

50
  1  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

51
  1  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

52
  1  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

53
  1  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,

54
  1  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

55
  1  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.  

56
  1                 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

57
  1  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

58
  1  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

59
  1  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

60
  1  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

61
  1  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

62
  1  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

63
  1  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,

64
  1  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

65
  1  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

66
  1  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

67
  1  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

68
  1  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

69
  1  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, --

70
  1                 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 --

71
  1                 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

72
  1  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

73
  1  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

74
  1  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

75
  1  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.  

76
  1                 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

77
  1  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.

78
  1                 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.

79
  1                 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

80
  1  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

81
  1  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

82
  1  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

83
  1  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

84
  1  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

85
  1  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

86
  1  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 --

87
  1                 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:

88
  1                 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

89
  1   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

90
  1  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

91
  1  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

92
  1  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.

93
  1                 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

94
  1  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 --

95
  1                 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.  

96
  1                 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

97
  1  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."

98
  1                 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,

99
  1  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

100
  1  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

101
  1  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

102
  1  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?

103
  1                 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.

104
  1                 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

105
  1   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

106
  1   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?

107
  1                  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

108
  1   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.

109
  1                  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.

110
  1                  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

111
  1   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

112
  1   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

113
  1   (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

114
  1   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

115
  1   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

116
  1   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

117
  1   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

118
  1   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

119
  1   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   --

120
  1                  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

121
  1   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

122
  1   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,

123
  1   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

124
  1   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,

125
  1   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

126
  1                    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

127
  1   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

128
  1                    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.  

129
  1                  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.

130
  1                  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

131
  1   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 --

132
  1                  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 --

133
  1                  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 --

134
  1                  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

135
  1   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

136
  1   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 --

137
  1                  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

138
  1   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?

139
  1                  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 --

140
  1                  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),

141
  1   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

142
  1   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

143
  1   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

144
  1   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.

145
  1                  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

146
  1   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?  

147
  1                  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

148
  1   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? 

149
  1  
  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,

150
  1   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

151
  1   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.

152
  1                  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

153
  1   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.

154
  1                  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

155
  1   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

156
  1   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

157
  1   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

158
  1   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

159
  1   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)

160
  1                  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.
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