11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 November 26th, 2007 25
21 Appearances 2 Linda Rothstein (np) ) Commission Counsel 3 Mark Sandler (np) ) 4 Robert Centa ) 5 Johnathan Shime (np) ) 6 7 Brian Gover ) Office of the Chief Coroner 8 Luisa Ritacca ) for Ontario 9 Teja Rachamalla ) 10 11 Jane Langford ) Dr. Charles Smith 12 Niels Ortved (np) ) 13 Erica Baron ) 14 Grant Hoole (np) ) 15 16 William Carter ) Hospital for Sick Children 17 Barbara Walker-Renshaw (np) ) 18 Kate Crawford ) 19 20 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 21 Association 22 Mara Greene (np) ) Criminal Lawyers' 23 Breese Davies (np) ) Association 24 Joseph Di Luca ) 25 Jeffrey Manishen (np) )
31 APPEARANCES (CONT'D) 2 James Lockyer (np) ) William Mullins-Johnson, 3 Alison Craig ) Sherry Sherret-Robinson and 4 Phil Campbell ) seven unnamed persons 5 6 Peter Wardle ) Affected Families Group 7 Julie Kirkpatrick (np) ) 8 Daniel Bernstein ) 9 10 Louis Sokolov ) Association in Defence of 11 Vanora Simpson (np) ) the Wrongly Convicted 12 13 Jackie Esmonde ) Aboriginal Legal Services 14 Kimberly Murray (np) ) of Toronto and Nishnawbe 15 Sheila Cuthbertson (np) ) Aski-Nation 16 Julian Falconer (np) ) 17 18 Suzan Fraser (np) Defence for Children 19 International - Canada 20 21 William Manuel (np) ) Ministry of the Attorney 22 Heather Mackay ) General for Ontario 23 Erin Rizok (np) ) 24 Kim Twohig 25
41 APPEARANCES (cont'd) 2 3 Natasha Egan (np) ) College of Physicians and 4 Carolyn Silver (np) ) Surgeons 5 6 Michael Lomer (np) ) For Marco Trotta 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS 2 Page No. 3 4 THOMAS JAMES CAIRNS, Affirmed 5 Examination-In-Chief by Ms. Linda Rothstein 7 6 7 8 Certificate of transcript 261 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:31 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 THE CHAIRPERSON: Good morning. Ms. 6 Rothstein...? 7 MS. LINDA ROTHSTEIN: We have this 8 morning, Dr. Thomas James Cairns as our witness. 9 THE CHAIRPERSON: Dr. Cairns. 10 MS. LINDA ROTHSTEIN: Needs to be sworn 11 in, Commissioner. 12 DR. THOMAS CAIRNS: I'd like to affirm. 13 14 THOMAS JAMES CAIRNS, Affirmed 15 16 MS. LINDA ROTHSTEIN: Good morning, Dr. 17 Cairns, good morning, Commissioner. 18 THE CHAIRPERSON: Good morning. 19 MS. LINDA ROTHSTEIN: Dr. Cairns, 20 Commissioner, you should each have four (4) binders of 21 documents numbered 1 through 4, which I propose to use 22 during my examination of Dr. Cairns. 23 You should also have your two (2) binders 24 of the overview reports that we've been using thus far in 25 the Inquiry. And in addition to that, Commissioner, we
71 have prepared a chronology with respect to the evidence 2 of Dr. Cairns. 3 It does not purport to be the least bit 4 exhaustive, but as you can appreciate, Commissioner, it 5 is difficult both for Dr. Cairns and I to keep some of 6 the key dates in our heads as we go through this. 7 And we're hopeful that this will assist 8 Dr. Cairns and I in insuring that we don't misstate the 9 timing of events. 10 11 EXAMINATION-IN-CHIEF BY MS. LINDA ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: Dr. Cairns, if you 13 would be good enough to turn up Tab 1 of volume I, it's 14 at 149227. I understand that that is a copy of your 15 curriculum vitae? 16 DR. THOMAS CAIRNS: Tab 1 of Volume I? 17 MS. LINDA ROTHSTEIN: Correct. 18 DR. THOMAS CAIRNS: Yes, that is correct. 19 MS. LINDA ROTHSTEIN: Okay. Dr. Cairns, 20 you are as we all know, a Deputy Chief Coroner of 21 Ontario. I want to review with you, if we may, a little 22 bit about your background. 23 I understand that you were born in 24 Ireland? 25 DR. THOMAS CAIRNS: That's correct.
81 MS. LINDA ROTHSTEIN: And that you 2 attended medical school at Queen's University of Belfast 3 in Northern Ireland? 4 DR. THOMAS CAIRNS: Correct. 5 MS. LINDA ROTHSTEIN: Completing your 6 training there and obtaining your MD? 7 DR. THOMAS CAIRNS: Actually the degree 8 there is, being British, it's MB Bch BAO, but it's -- 9 it's the same equivalent. 10 MS. LINDA ROTHSTEIN: And as part of your 11 medical school training I understand that you were 12 required to take a class in forensic medicine, which was 13 offered over a two (2) year period. 14 DR. THOMAS CAIRNS: We did a two (2) year 15 course in forensic medicine as undergraduates, yes. 16 MS. LINDA ROTHSTEIN: Can you tell the 17 Commissioner what that entailed? 18 DR. THOMAS CAIRNS: That entailed being 19 taught by the then Professor of Forensic Medicine, who 20 was a predecessor to Dr. Crane and is involved in the 21 distinction of describing wounds; what was a bullet 22 wound, what was a knife wound, what was an entrance 23 wound, what was an exit wound, time of death, changes 24 after death, hanging suicide. 25 It was a complete -- obviously not to the
91 same detail -- a complete covering of forensic medicine. 2 It was not including histology. In other words, it had 3 nothing to do with looking down the microscope, but it 4 was felt that no matter what field of medicine you went 5 into, that some understanding of medicine as it may apply 6 medicolegally would be of value to -- to every physician. 7 It included obviously the con -- concept 8 of proper writing of death certificates, in terms of what 9 was the flow of, did A cause B to -- to cause C. And it 10 was certainly felt that depending where you ended up in 11 the world, and at that time, in 1969, anybody with any 12 sense got out of Northern Ireland, so the chances of us 13 li -- going elsewhere was pretty great and depending on - 14 - we had lots of people that went to -- all over the 15 world, that it may be of relevance. 16 It was also felt to be of relevance to 17 people who were going to do emergency medicine. And the 18 hidden relevance to what started in 1999, a week after I 19 qualified, was -- was not foreseen at the time, but I 20 remember going back to my forensic notes within two (2) 21 weeks of qualifying to figure out was this an entrance 22 wound or an exit wound. 23 So this was something that was done in 24 Belfast. It was done in some of the English universities 25 and the Scottish universities. It has since been
101 diminished tremendously and it was not something that any 2 of the North American medical schools were doing at the 3 time. 4 MS. LINDA ROTHSTEIN: And the reason that 5 you needed it, as you've explained, in 1969 is because 6 upon graduation, I understand that you took a position at 7 the Emergency Department at Belfast City Hospital. 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: And as a result of 10 the rising conflict in Belfast you had occasion to see 11 many victims of violence. 12 DR. THOMAS CAIRNS: That's correct. 13 MS. LINDA ROTHSTEIN: I understand, Dr. 14 Crane, that you moved to Canada in 1972. 15 DR. THOMAS CAIRNS: It's Dr. Cairns. 16 MS. LINDA ROTHSTEIN: Dr. Cairns, excuse 17 me. 18 DR. THOMAS CAIRNS: I did. 19 MS. LINDA ROTHSTEIN: And you worked as a 20 family and emergency physician in Brampton from 1972 to 21 1979. 22 DR. THOMAS CAIRNS: That's correct. 23 MS. LINDA ROTHSTEIN: In 1979 you had the 24 opportunity to replace the local coroner in Brampton. 25 DR. THOMAS CAIRNS: That's correct.
111 MS. LINDA ROTHSTEIN: And why did you see 2 that as an attractive opportunity? 3 DR. THOMAS CAIRNS: I had, while I was 4 working in Brampton doing emergency medicine, I had had 5 lots of involvement with the coroner in Brampton and with 6 the -- the police and various other people who would be 7 involved in that field, it was always a field I was 8 interested in and as time went on and this individual 9 indicated he was -- he was moving to the United States. 10 I was certainly -- always have been interested in 11 forensic medicine and felt this would be a -- an 12 opportunity to spend more time in the absolute field of 13 forensic medicine. 14 MS. LINDA ROTHSTEIN: Now, am I correct, 15 Dr. Cairns, that at the time you were the head of the 16 Emergency Department at Peel Memorial Hospital in 17 Brampton? 18 DR. THOMAS CAIRNS: That's correct. 19 MS. LINDA ROTHSTEIN: And that you gave 20 up that position when you became a coroner? 21 DR. THOMAS CAIRNS: That's correct. 22 MS. LINDA ROTHSTEIN: But it was still a 23 part-time position, that is to say, the role of the 24 investigating coroner. 25 DR. THOMAS CAIRNS: It was a fee-for-
121 service. Each case you did, yes, you were paid for, and 2 it was a part-time position, and in addition to that, I 3 was still carrying on a -- a family practice. 4 I would say in terms of the hours spent it 5 probably was 50 percent of my time I spent doing coroner 6 work and 50 percent of my time I spent doing family 7 practice. 8 MS. LINDA ROTHSTEIN: Am I right, sir, 9 that at the time Peel was divided into two (2) regions, 10 north of the 401 and south of the 401? 11 DR. THOMAS CAIRNS: For -- in terms of 12 the coroner call, that's correct. 13 MS. LINDA ROTHSTEIN: And there were 14 three (3) coroners for south of the 401, that is to say, 15 Mississauga and one point five (1.5) coroners for 16 Brampton. 17 DR. THOMAS CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: In other words, 19 there was insufficient volume for you to assume the 20 position on a full-time basis. 21 DR. THOMAS CAIRNS: Yes, if I had wanted 22 to do it full time on a fee-for-service basis there would 23 not have been at that time sufficient volume. 24 MS. LINDA ROTHSTEIN: All right. Now, I 25 understand that in 1989 you became the President of the
131 Ontario Coroner's Association. 2 DR. THOMAS CAIRNS: That's correct. 3 MS. LINDA ROTHSTEIN: Could you tell the 4 Commissioner about the work of that association, please? 5 DR. THOMAS CAIRNS: Well, Commissioner, 6 the Association was an association that all the part-time 7 coroners would get together and would organize social 8 events, would organize lectures, and then on a more 9 serious note would -- the executive of that organization 10 would assist the Office of the Chief Coroner, who were 11 full time, would assist them on issues of what was 12 thought to be appropriate, a time to respond to a call, 13 and what was the appropriate and enumeration for doing 14 it. 15 So there were discussions there along 16 increase in fees as the years went on and what was 17 considered to be an -- the Office of the Chief Coroner 18 wanted some input from those who were working in the 19 field. Was it reason reasonable or unreasonable to 20 suggest the following parameters: 21 For example, if you get a call, what is a 22 reasonable time for you to leave your office. And at 23 that time, all local coroners would have been practising 24 physicians of one sort or another, so to say I'm going -- 25 I'm leaving my office immediately because there's a death
141 four (4) doors down and somebody dies in the waiting 2 room, hardly is a -- a useful experience. 3 So there were parameters about the 4 appropriateness of -- of the urgency of the calls. So 5 those were the sort of things that were -- that were 6 being discussed. 7 MS. LINDA ROTHSTEIN: And in addition, I 8 understand the Association was actively involved in 9 education of coroners? 10 DR. THOMAS CAIRNS: That's correct. 11 MS. LINDA ROTHSTEIN: Now in your role as 12 an investigating coroner, am I correct, sir, that you 13 presided over approximately thirty (30) inquests before 14 becoming the Deputy Chief Coroner of Ontario? 15 DR. THOMAS CAIRNS: That's correct. 16 MS. LINDA ROTHSTEIN: And that in 17 particular you presided over a very controversial inquest 18 of suspected child abuse? 19 DR. THOMAS CAIRNS: That's correct. 20 MS. LINDA ROTHSTEIN: And so can we infer 21 from that, Dr. Cairns, that prior to assuming the role of 22 Deputy Chief Coroner you had developed some understanding 23 of some of the sensitive and delicate issues that were 24 involved in investigations of that nature? 25 DR. THOMAS CAIRNS: Yes.
151 MS. LINDA ROTHSTEIN: You competed for 2 the position of Deputy Chief Coroner of Ontario and 3 assumed the position in September, 1991? 4 DR. THOMAS CAIRNS: I think it actually-- 5 MS. LINDA ROTHSTEIN: If you'd refer to 6 page 2, please, 7 DR. THOMAS CAIRNS: I think it was 8 actually October '91, yes. 9 MS. LINDA ROTHSTEIN: All right. 10 And at that time, as I understand it, Dr. 11 Cairns, there was only one (1) Deputy Chief Coroner? 12 DR. THOMAS CAIRNS: That's correct. 13 MS. LINDA ROTHSTEIN: And at that time, 14 Dr. Young had been appointed as the Chief Coroner of 15 Ontario and had been fulfilling that function for 16 approximately a year and a half? 17 DR. THOMAS CAIRNS: Yes. 18 MS. LINDA ROTHSTEIN: Your role was to 19 supervise death investigation and to enhance the quality 20 of education for investigating coroners? 21 DR. THOMAS CAIRNS: That's correct. 22 MS. LINDA ROTHSTEIN: And am I correct, 23 sir, that indeed you helped to initiate the education 24 course for new coroners which was developed in 1992? 25 DR. THOMAS CAIRNS: That's correct.
161 Prior to that, apart from being given the Coroners Act 2 and told a number of things about the Act from a legal 3 standpoint, there was no introductory course of 4 physicians into the work of coroner. So that as -- since 5 none of the graduates here had taken any undergraduate 6 training in forensic medicine, we felt we should give 7 them some of the basics in -- in that regard. The course 8 eventually developed up to a -- a three (3) day course. 9 Is a three (3) day course long enough? 10 No, but the value of a three (3) day course was -- I 11 think it was much important to make people realize what 12 they didn't know as well as what they did know so they 13 didn't overestimate their knowledge. And it was stressed 14 at all times that if in doubt you were to call somebody 15 higher up the chain, particularly in the early -- in 16 their early stages. 17 MS. LINDA ROTHSTEIN: And would those 18 calls eventually be routed to you in the most complex 19 cases, sir? 20 DR. THOMAS CAIRNS: The -- the method of 21 routing would be the Regional Supervising Coroners -- and 22 at that time there were eight (8) of them across the 23 province, and the local coroners would directly contact 24 them. So they would be contacting a full-time regional 25 coroner if they were just new to the job, checking is it
171 -- is this the proper way to do this, is this the proper 2 way to do that? 3 If it was a complex issue, then it was the 4 policy that the Regional Supervising Coroners would then 5 contact me. 6 MS. LINDA ROTHSTEIN: Now, am I correct 7 that looking at page 2 of your CV that you have done some 8 teaching at the University of Toronto since 2000? 9 DR. THOMAS CAIRNS: That's correct. 10 MS. LINDA ROTHSTEIN: You've been 11 involved in giving two (2) lectures at the University of 12 Toronto Mississauga campus in a full year forensic 13 science course that is offered to undergraduates? 14 DR. THOMAS CAIRNS: That's correct. 15 MS. LINDA ROTHSTEIN: I understand, Dr. 16 Cairns, that you conduct a lecture on the role of the 17 Chief Coroner and a lecture on death scene investigation. 18 DR. THOMAS CAIRNS: That's correct. 19 MS. LINDA ROTHSTEIN: And for many years 20 -- if we turn to, well, the bottom of that page, 21 Commissioner, you'll see you are a Fellow of the American 22 Academy of Forensic Sciences? 23 DR. THOMAS CAIRNS: That's correct. 24 MS. LINDA ROTHSTEIN: Can you tell the 25 Commissioner about that academy and, specifically, who
181 the members of that academy are. 2 DR. THOMAS CAIRNS: Well, that academy is 3 the largest academy in the world regarding the field of 4 forensic -- forensic sciences. So, it includes medical 5 people, it includes engineers, includes psychiatrists; 6 it's a multi-discipline academy with -- at an annual 7 meeting there's usually over two thousand (2,000) 8 attendees. 9 So the academy is divided into -- into 10 different sections, depending on the interest that -- 11 that you particularly have. 12 MS. LINDA ROTHSTEIN: Could you give us a 13 sense of the sections that are encompassed in the 14 academy? 15 DR. THOMAS CAIRNS: Well, certainly, 16 there's a dental section, there's a -- a document 17 section, there will be a toxicology section, a DNA 18 section, a pathology section, a behavioural science 19 section, a legal section, and it goes on and on. But 20 that -- I think that's giving you, at least, a -- a broad 21 sweep of what's involved. 22 MS. LINDA ROTHSTEIN: So, for someone 23 like you, whose job crosses all of those disciplines to 24 some degree or at least involves you in all of those 25 disciplines, which section did you belong to or did it
191 work like that? 2 DR. THOMAS CAIRNS: I -- I was in the 3 general section, for that very reason -- that I wanted to 4 get experience, particularly in areas that you weren't 5 dealing with every day. And, in fact, many occasions, we 6 would go to the academy meeting and not go to anything 7 that would be to do with our daily work. We'd like to go 8 and hear something that was foreign to us but may, at 9 some stage, be relevant in an investigation. 10 MS. LINDA ROTHSTEIN: How does one go 11 about becoming accepted for membership in the academy, 12 Dr. Cairns? 13 DR. THOMAS CAIRNS: You -- you apply and 14 when you apply you have to have -- you have to be -- have 15 two referees, who are, at least, fellows of the academy, 16 recommending you. They will -- you have to send your CV 17 in. They will then accept you or not accept you when you 18 go in on a provincial membership, and then as you take 19 the various steps, such as lecturing at the academy, at 20 the meetings or sitting on their committees, you can move 21 up to a member and, in due course, you can move up to a - 22 - to a fellow. 23 MS. LINDA ROTHSTEIN: And how often does 24 the academy meet? 25 DR. THOMAS CAIRNS: It has one annual
201 meeting each year in February. 2 MS. LINDA ROTHSTEIN: And how frequently 3 did you attend that annual meeting? 4 DR. THOMAS CAIRNS: I was attending that 5 annual meeting on an annual basis until probably around 6 1998, '99 and, at that time, there were other full-time 7 Regional Coroners in our office who were also trying to 8 make their way up. 9 And government budgets had said, Okay, 10 only four (4) of you can go, so I felt it was only fair 11 that people who were still attempting to make it, that -- 12 they would -- they would go more often than I did. So I 13 -- I would then go, approximately, every three (3) or 14 four (4) years. 15 MS. LINDA ROTHSTEIN: So, can you give 16 the Commissioner some sense of how many members of the 17 Office of the Chief Coroner were members, or are members, 18 of the American Academy of Forensic Sciences? 19 DR. THOMAS CAIRNS: Dr. Young, in fact, 20 was and -- and was president of the academy. Dr. 21 McLellan was. Myself and a number of the Regional 22 Supervising Coroners are members. I'm not aware at this 23 stage, although it may be that any of them at this stage 24 are fellows, and that's why we've been allowing them to 25 go instead of -- instead of ourselves.
211 MS. LINDA ROTHSTEIN: And what about the 2 pathologists? Are -- do they seek membership in the 3 American Academy -- 4 DR. THOMAS CAIRNS: Yes. 5 MS. LINDA ROTHSTEIN: -- or not? 6 DR. THOMAS CAIRNS: The -- the 7 pathologists also. And they normally will go into the 8 pathology section. 9 MS. LINDA ROTHSTEIN: So, do you know if 10 Dr. Pollanen is, in fact, a member? Do you remember? 11 DR. THOMAS CAIRNS: I think he's a 12 member, but I can't be 100 percent sure. 13 MS. LINDA ROTHSTEIN: Okay. Now, I -- I 14 want to go back and talk a little bit about history with 15 you, if I can, in the early days of your role as the 16 Deputy Chief Coroner. 17 At that time, as I understand it, Dr. 18 Cairns, Dr. Hillsdon Smith was the Chief Forensic 19 Pathologist for the Province of Ontario? 20 DR. THOMAS CAIRNS: That -- that is 21 correct, and perhaps it will be helpful to the 22 Commissioner -- at that time there was a division of 23 forensic pathology. And the Chief was entirely separate 24 from the Office of the Chief Coroner. 25 The Chief Coroner was Dr. Beatty Cotnam,
221 and he was head of a division and both of them then 2 reported to an Assistant Deputy Minister. 3 COMMISSIONER STEPHEN GOUDGE: Where were 4 they housed? 5 DR. THOMAS CAIRNS: Where were they -- 6 COMMISSIONER STEPHEN GOUDGE: The two (2) 7 divisions -- where were they housed? 8 DR. THOMAS CAIRNS: Where were they 9 housed? Initially, the pathology -- forensic pathology 10 was going to be in what's now the Coroner's Office on 11 Grenville Street, and the Chief Coroner's Office was 12 going to be in the -- the Centre of Forensic Science 13 building on Grover Street. 14 Dr. Cotnam felt that that would not be 15 appropriate, so moved over to the Grenville Street 16 address where Dr. Hillsdon Smith already was. 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: So the Chief 20 Forensic Pathologist did not report to the Chief Coroner 21 at that time. 22 DR. THOMAS CAIRNS: That's correct. 23 MS. LINDA ROTHSTEIN: That didn't occur 24 until Dr. Chiasson became the Chief Forensic Pathologist, 25 am I correct?
231 DR. THOMAS CAIRNS: That's correct. 2 MS. LINDA ROTHSTEIN: That was in 1994. 3 You'll see that on your time line, Commissioner. 4 DR. THOMAS CAIRNS: Mm-hm. 5 MS. LINDA ROTHSTEIN: So prior to that -- 6 prior to 1994 -- can you give the Commissioner a sense of 7 the nature and extent of the interaction between the 8 OCCO, on the one (1) hand and the office of the Chief 9 Forensic Pathologist on the other? 10 DR. THOMAS CAIRNS: Sadly, not that long 11 after Dr. Hillsdon Smith started, Dr. Beatty Cotnam and 12 him had a falling out to the extent that although both 13 were meant to have their offices on the second floor in 14 the Coroner's Building, Dr. Hillsdon Smith and Dr. Cotnam 15 could not work on the same floor, so Dr. Hillsdon Smith 16 moved to the basement. 17 And the basement would be for the 18 pathologists, the second floor would be for the coroners, 19 and the autopsy room was on the first floor, and it's 20 fair to stay it was a little bit of upstairs, downstairs 21 mentality. There was very little mixing of the two (2). 22 MS. LINDA ROTHSTEIN: What about in 23 1991,'92,'93, when you and Dr. Young have come to the 24 Office of the Chief Coroner? 25 DR. THOMAS CAIRNS: Well, I came in 1991,
241 I had known Dr. Hillsdon Smith throughout the '80s when 2 he had lectured at our conferences, and where I had 3 occasions on a particular case to -- to go to attend the 4 autopsy in Toronto, so I knew him on a one-to-one basis, 5 but was not aware of -- of issues, at that time, with 6 regard to the interaction between the Department of 7 Forensic Pathology and the -- and the cor -- Chief 8 Coroner's Office. 9 But when I went down in -- in 1991, I was 10 there probably a week, and I -- I walked into the autopsy 11 room and the question was, Well, what are you doing here, 12 you're a coroner, you're upstairs, you don't come down 13 here. And that was a reflection of, unfortunately, that 14 there wasn't very much good communication between the two 15 (2); it was your camp and our camp. 16 MS. LINDA ROTHSTEIN: Did that attitude 17 persist until the arrival of Dr. Tuson (phonetic)? 18 DR. THOMAS CAIRNS: It -- it lessened 19 because I started to -- to go down, and I got on 20 reasonably well with Dr. Hillsdon Smith, so I sort of was 21 an intermediary. But, yes, it continued because, 22 unfortunately, Dr. Hillsdon Smith was towards the end of 23 his career, and I don't mean this is any slight of the 24 man who's now dead, but -- but he had genuinely lost 25 interest. He would do his own cases, but he wasn't
251 really interested in educating other pathologists or in 2 enhancing the pathology system in the province. 3 COMMISSIONER STEPHEN GOUDGE: Were there 4 other full-time pathologists working at Grenville Street 5 then? 6 DR. THOMAS CAIRNS: There were not at 7 that time, Commissioner. Shortly around then a Dr. Noel 8 McAuliffe came to work there full-time, but he was being 9 on a full-time fee-for-service basis. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. THOMAS CAIRNS: There were -- the 12 other pathologists who were there, at that time, were 13 coming in from hospitals on a case-by-case basis. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Would you turn to 17 the third page? Dr. Cairns, I want to spend a little 18 time with you turning to an important aspect as your 19 career as the Deputy Chief Coroner; namely, your 20 involvement in and role as the Chair of the Paediatric 21 Death Review Committee. 22 I understand that committee was first 23 created in 1989? 24 DR. THOMAS CAIRNS: Yes. 25 COMMISSIONER STEPHEN GOUDGE: Before you
261 do that, Ms. Rothstein, -- 2 MS. LINDA ROTHSTEIN: Yes. 3 COMMISSIONER STEPHEN GOUDGE: -- are you 4 going to come back to the organizational change in '94? 5 MS. LINDA ROTHSTEIN: Yes. We're going 6 to pursue that at some length -- 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 MS. LINDA ROTHSTEIN: -- as well, with 9 Dr. Young and with Dr. Chiasson. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MS. LINDA ROTHSTEIN: I'm trying to not 12 get too far ahead of ourselves chronologically, although 13 I can't ensure it's going to be perfectly chronological 14 today, Commissioner. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: That committee was 18 created in 1989, before your tenure as the Deputy? 19 DR. THOMAS CAIRNS: That's correct. 20 MS. LINDA ROTHSTEIN: It was, as we've 21 heard from Dr. McLellan, created to look at children's 22 deaths with the focus on reviewing the medical care they 23 had received. 24 DR. THOMAS CAIRNS: Yes, what was 25 happening was that a coroner may be investigating a
271 death, particularly if it was in a tertiary care 2 hospital, and there may be issues brought up by the staff 3 or brought up by the relatives that the care of that 4 child had been less then optimum. 5 And in fact the care -- or lack of care 6 may have contributed to the death. We did not feel that 7 we had sufficient expertise to analyse those types of 8 deaths, and accordingly we requested -- the Committee was 9 formed with a group of medical experts on the Committee 10 to assist the Office of the Chief Coroner in answering 11 those particular questions. 12 MS. LINDA ROTHSTEIN: So am I correct in 13 inferring from that, Dr. Cairns, that the PDRC was not 14 designed to review criminally-suspicious cases? 15 DR. THOMAS CAIRNS: It was -- no, it was 16 set -- it was formed to assist us in medically complex 17 cases. 18 MS. LINDA ROTHSTEIN: Now your counsel, 19 Dr. Cairns, have advised us that the members of that 20 Committee from its inception or very early on, were Dr. 21 Charles Smith? 22 DR. THOMAS CAIRNS: That's correct. 23 MS. LINDA ROTHSTEIN: Dr. Desmond Bohe -- 24 B-O-H-E, Commissioner, who was -- 25 DR. THOMAS CAIRNS: Bohn -- Bohn -- B-O-
281 H-N. 2 MS. LINDA ROTHSTEIN: All right. Who was 3 a pediatric intensivist at the Hospital for Sick 4 Children? 5 DR. THOMAS CAIRNS: That's right. He's 6 now the director of the intensive care unit at the 7 Hospital for Sick Children. 8 MS. LINDA ROTHSTEIN: Dr. Ted Cormond -- 9 did I pronounce that correctly? 10 DR. THOMAS CAIRNS: Cormode. 11 MS. LINDA ROTHSTEIN: Cormode. Who was 12 an Orillia pediatrician with a knowledge of abuse issues? 13 DR. THOMAS CAIRNS: That's correct. 14 MS. LINDA ROTHSTEIN: Dr. Robin William, 15 who is a pediatrician in Niagra Falls, who also did some 16 child abuse work? 17 DR. THOMAS CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: Dr. Robert Hexter 19 (phonetic), the Regional Supervising Coroner for Toronto, 20 was the first Chair prior to your involvement, is that 21 right? 22 DR. THOMAS CAIRNS: That's right. 23 MS. LINDA ROTHSTEIN: And then you became 24 the Chair as we see from your CV in 1992? 25 DR. THOMAS CAIRNS: Correct.
291 MS. LINDA ROTHSTEIN: And did the 2 membership of the Committee continue in exactly the same 3 way? 4 DR. THOMAS CAIRNS: Dr. John Watts who's 5 a Professor of Neonatology at McMaster had joined the 6 committee prior to my taking over as the Chair. 7 And otherwise the composition of the 8 Committee was just as you -- you've described it. So we 9 had a pediatric intensivist from Sick Kids, an 10 neonatologist from McMaster, a pathologist from Sick 11 Kids. And then two (2) pediatricians who were 12 representing more a consulting pediatricians practice in 13 a community hospital. 14 So that the whole membership was not 15 entirely an ivory tower type situation. 16 MS. LINDA ROTHSTEIN: How often did the 17 Committee meet? 18 DR. THOMAS CAIRNS: The Committee met 19 once a month. It met normally on a Tuesday evening from 20 6:00 p.m. to 11:00. And the reason for the meeting in 21 the evening, was that these were considered very valuable 22 members to their own hospitals, and when we tried to meet 23 during the day, they naturally were not able to attend. 24 They had other things to look for. 25 MS. LINDA ROTHSTEIN: Now was your work
301 on that Committee the way in which you first got to know 2 Dr. Charles Smith? 3 DR. THOMAS CAIRNS: Apart from obviously 4 he had lectured to -- a number of educational courses in 5 -- in the '80s, but yes, that would have been the first 6 time I would have got to know him. 7 MS. LINDA ROTHSTEIN: And what 8 conclusions did you draw about Dr. Smith at that time, if 9 any? 10 DR. THOMAS CAIRNS: Dr. Smith at that 11 time was the -- the person to go to for the role of 12 Pediatric Forensic Pathology. And in fact, he was the 13 one (1) who had triggered -- the only -- he was the only 14 one (1) to trigger an interest in pediatric forensic 15 pathology through his lectures in the early and late 16 '80s, and into the early '90s. 17 MS. LINDA ROTHSTEIN: And what was your 18 impression of him, Dr. Cairns? 19 DR. THOMAS CAIRNS: I thought he was an - 20 - an excellent lecturer, a very -- dedicated to child 21 death investigation. And I had nothing but the highest 22 of compliments to pay him. 23 MS. LINDA ROTHSTEIN: And can you give 24 the Commissioner a sense of how often, apart from those 25 monthly meeting of the Paediatric Death Review Committee,
311 you had occasion to be in Dr. Smith's company, in the 2 early '90s? 3 DR. THOMAS CAIRNS: In the early '90s, 4 initially it would have been just those meetings. But as 5 the role of the Committee took on other aspects, it would 6 become much more significant. And certainly by the mid 7 to the late '90s, I was probably discussing some case 8 with him, if not on a daily basis, certainly three (3) or 9 four (4) times a week in addition to his attendance at 10 the monthly meeting. 11 MS. LINDA ROTHSTEIN: All right. So 12 explain to the Commissioner a little bit about what would 13 happen once there was a referral of a case to the 14 Committee for its review. 15 What -- what process did the Committee 16 undertake? 17 DR. THOMAS CAIRNS: Well what happened, 18 Commissioner, is that a local coroner who was doing an 19 investigation would -- alarm bells would go off that they 20 weren't able to answer some questions. They would refer 21 the case to the regional supervising coroner who was 22 their boss, and if that individual agreed then they would 23 refer the case to the committee. 24 In that situation they -- one (1) member 25 of the committee would be given the task of reviewing the
321 overall file and that would include the coroner's report, 2 the autopsy report, and all the medical files from the 3 different hospitals and doctors, and that member of the 4 committee would then make a summary of that so that when 5 it came to the actual meeting we didn't have to start 6 from scratch. 7 They would present the case, present the 8 concerns, present what he or she thought were the issues 9 and then the full committee would discuss the issue and 10 at the end of the case there would be a decision with 11 regard to the cause of death and if there were issues 12 about medical practice there would be recommendations 13 made by the committee. 14 So the committee would come out with a 15 report, it would be a report of the whole committee; it 16 would not be the report of the initial person who scanned 17 it, so there had to be agreement at the end that the 18 report reflected the -- the views of the full committee. 19 It would then be forwarded back to the 20 regional supervising coroner and the local coroner, and 21 if there were issues about changing our recommendations 22 about how the hospital should treat this condition in the 23 future, those recommendations would be sent to the 24 hospital, and the report was also available to the family 25 of the deceased.
331 COMMISSIONER STEPHEN GOUDGE: Would this 2 all be done after the post-mortem report was finalized or 3 was the post-mortem report before you in kind of draft? 4 DR. THOMAS CAIRNS: No, by the time -- 5 they would certainly -- by the time things were coming to 6 the committee, we didn't bring them to the committee 7 until we had all the documentation, so there would, and 8 given the fact that the committee, in terms of its 9 behind-the-scenes people, we weren't as lucky as you are, 10 Commissioner. 11 I chaired a committee and my secretary, 12 who was my secretary from everything else, was it so in 13 terms of -- it would be most likely that it would be nine 14 (9) months to a year before it got to the committee when 15 you consider waiting for the autopsy, et cetera. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: And am I correct, 19 Dr. Cairns, that one (1) of the focuses of the committee 20 wasn't so much the determination of cause of death, but 21 whether the medical care was reasonable and what, if any, 22 systemic issues the quality of the medical care raised? 23 DR. THOMAS CAIRNS: I -- I can't put it 24 any better. 25 MS. LINDA ROTHSTEIN: And if I understand
341 it, Dr. Cairns, one (1) of the ways that your committee 2 was able to work effectively with hospitals was to, if I 3 can suggest, nudge them to make some changes or otherwise 4 suggest that maybe an inquest was going to be necessary. 5 DR. THOMAS CAIRNS: You -- you're being 6 very polite; I'm -- I'm not so polite. It was the carrot 7 or the big stick; if you don't do it one way, we can do 8 it the other way and it actually -- it was very seldom 9 that you had to use the big stick. 10 Most of the hospitals appreciated if we 11 could resolve this issue without taking it to inquest 12 would be the appropriate way to do it. So the committee, 13 because of the experts that were on it, those experts 14 were people who were highly regarded in the Province of 15 Ontario by all the physicians and they -- they sat up and 16 took notice when these experts were coming out with 17 recommendations. 18 MS. LINDA ROTHSTEIN: Now, Dr. Cairns, I 19 understand that over time investigating coroners who were 20 aware of the work of the committee started to refer more 21 child deaths to it, and in particular, started to refer 22 more SIDS-related cases for its review. 23 DR. THOMAS CAIRNS: That is correct. 24 SIDS was a complex diagnosis and many of the local 25 coroners were not sure if what they were dealing with was
351 or was not a SIDS, so they were starting to refer cases 2 of that nature to us, and at around the same time, in 3 1991, there had been an international definition for the 4 first time of SIDS. 5 Prior to 1991 different jurisdictions, 6 different countries, all had different definitions of 7 SIDS, and in 1991 there was an internationally-accepted 8 definition of SIDS. 9 MS. LINDA ROTHSTEIN: I want to -- I want 10 to get to that, absolutely, Dr. Cairns. And I want to 11 tell you, Commissioner, that later today I expect that 12 Dr. Cairns and I will spend some time walking through one 13 (1) of the cases that first resulted in a follow-up 14 investigation as a result of a referral to the PDRC. 15 But for the moment, Dr. Cairns, I want to 16 -- I want to talk to you about something that we've 17 already heard some evidence about from Dr. McLellan in 18 particular and Dr. Pollanen, which was the early work of 19 the OCCO in developing guidelines for the investigation 20 of SIDS deaths. 21 And we've already heard, as you know, some 22 -- some evidence about that, but Dr. McLellan was very 23 candid in telling the Commissioner and I that he wasn't 24 around when those policies were first developed and -- 25 DR. THOMAS CAIRNS: He's much younger
361 than I am. 2 MS. LINDA ROTHSTEIN: -- and that you 3 would be able to provide the Commissioner which a -- with 4 a much broader and more historical context for those 5 policies. 6 So, interestingly, Commissioner, the 7 story, as I understand it, begins with a -- a case that 8 made its way to the Coroners Council -- is that fair, Dr. 9 Cairns -- in 1994? 10 Do you want to look at Tab 4 with me for a 11 moment? And PFP number, Commissioner, is 152228. 12 DR. THOMAS CAIRNS: Tab -- Tab 4 in which 13 binder? 14 MS. LINDA ROTHSTEIN: Tab 4 of Volume I, 15 that same volume that you have there, Dr. Cairns. 16 This is a complaint that arises from the 17 death investigation that was conducted into the death of 18 Graciela Montans. Have you got that? 19 DR. THOMAS CAIRNS: I seem to have Tab 1 20 and then it goes A, B, C, D. So perhaps I have the 21 wrong... 22 MS. LINDA ROTHSTEIN: You do have a very 23 different book than I'm using. That's it. There we go. 24 Oh sorry, Mr. Centa tells me it's actually 25 Tab 3, Commissioner, so I've confused everybody. But
371 you've now got the right volume, Dr. Cairns? 2 DR. THOMAS CAIRNS: Yes, I do. 3 MS. LINDA ROTHSTEIN: Okay. Now this is 4 a decision of the Coroners Council dated May 2, 1994, and 5 I understand, Dr. -- 6 DR. THOMAS CAIRNS: Sorry. I have it at 7 Tab -- Tab 4. 8 COMMISSIONER STEPHEN GOUDGE: That is -- 9 it is at Tab 4, yes. 10 MS. LINDA ROTHSTEIN: Yeah. And I 11 understand that the Chair of that Council was Mr. Justice 12 Edward Then from its inception, actually. 13 DR. THOMAS CAIRNS: That's correct. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: And the two (2) 17 other members of the Coroners Council that was hearing 18 this particular conduct matter were Dr. Peter King, who I 19 understand was a coroner? 20 DR. THOMAS CAIRNS: He had retired. He 21 had been the Deputy Chief Coroner for the Province of 22 Ontario prior to his retirement. 23 MS. LINDA ROTHSTEIN: And Dr. Miriam 24 Kauffman? 25 DR. THOMAS CAIRNS: Who was a physician
381 member but not a coroner. 2 MS. LINDA ROTHSTEIN: Right. Now just, 3 Commissioner, a bit of history. 4 I understand, Dr. Cairns, that the 5 Coroners Council had a role in dealing with any 6 complaints from families or others about the work that 7 was done by coroners in the death investigation process? 8 DR. THOMAS CAIRNS: Yes. If there was a 9 significant complaint about the work of a corner then it 10 would be referred to the Coroners Council and they would 11 take whatever they felt was the appropriate action. 12 Sometimes it would be in an interview and in this 13 particular case there was a full hearing with Justice 14 Then presiding over it and witnesses were called and 15 cross-examined by various legal counsel representing 16 different parties. 17 MS. LINDA ROTHSTEIN: And I understand 18 that, indeed, there were very few full hearings that were 19 actually conducted by the Council? 20 DR. THOMAS CAIRNS: And this is one (1) 21 of the very few that I can remember where it was a full 22 court-like hearing. 23 MS. LINDA ROTHSTEIN: And then a bit of 24 history again, Commissioner. The Coroners Council was 25 disbanded on December the 18th, 1998 when Sections 6 and
391 7 of the Coroners Act were repealed? 2 DR. THOMAS CAIRNS: That's -- 3 MS. LINDA ROTHSTEIN: Is that right? 4 DR. THOMAS CAIRNS: -- correct, yes. 5 MS. LINDA ROTHSTEIN: Am I right, Dr. 6 Cairns, that this was the only hearing before the 7 Coroners Council in which you were a witness? 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: And that the case 10 arose because there was a manual strangulation of -- the 11 husband in this case, of his wife, Ms. Montans, that he 12 had disguised to look like a motor vehicle accident? 13 DR. THOMAS CAIRNS: That is correct. 14 MS. LINDA ROTHSTEIN: It occurred back in 15 June of 1992? 16 DR. THOMAS CAIRNS: Do you want me to 17 give a brief summary of it? 18 MS. LINDA ROTHSTEIN: By all means. 19 DR. THOMAS CAIRNS: It had occurred on 20 Highway 410 in Brampton. The husband and wife had been, 21 I think, cleaning some of the banks at probably City 22 Centre, were in a station wagon and were -- no, in a van, 23 and we're driving south on the 410. 24 The van lost the road -- lost -- left the 25 road, went into the ditch, and when emergency crews
401 arrived, the -- Ms. Montans was lying outside the front 2 passenger door, and her husband was lying outside the 3 driver's door. 4 They were both transported to Peel 5 Memorial Hospital, where she was pronounced dead, and he 6 was treated for injuries. The Emergency staff at the 7 hospital felt that she had a broken neck, because they 8 had difficulty intubating her, getting a endotracheal 9 tube into her airway. 10 The police were at the scene and the 11 police were at the -- in the emergency room, and the 12 local coroner, Dr. Lucas, who was the coroner who took 13 over in Brampton when I became the full time Deputy Chief 14 Coroner, was called. 15 He examined Mrs. Montans and talked to the 16 emergency physicians. And since she was a passenger in 17 the vehicle, it was not the policy at that time to 18 autopsy passengers, and it was felt she had died as a 19 result of injuries she had received in the motor vehicle 20 accident, and that most likely she had a broken -- she 21 had a fractured neck. 22 So he did not order an autopsy. And the 23 next day, he got a call from the lady's daughter who 24 expressed serious concerns. She was aware that her 25 mother was going to tell her husband that night that she
411 was leaving him and she felt it was too coincidental that 2 with that, that there's a convenient car crash taking her 3 mother's life. 4 With that, Dr. Lucas did order an autopsy, 5 and the autopsy was done at Peel Memorial Hospital. 6 During the autopsy, the pathologist who was performing 7 the autopsy, was not able to establish from the 8 examination the cause of death. 9 He felt that it probably was a fracture of 10 C1/C2, the first two (2) cervical vertebrae, but he 11 wasn't sure. He asked for some x-rays to be taken, and 12 then for a radiologist to interpret the x-rays. 13 The radiologist was in a different part of 14 the building, interpreted the x-rays, saying, I'm not 15 that sure what we have here. But the pathologist is down 16 there with the body; if the pathologist thinks it's a 17 fracture C1/C2, I'm sure he's right; and wrote on the fr 18 -- on the envelope, fracture C1/C2. 19 So there was no direct communication 20 between either of the parties. So the radiologist 21 thought the pathologist knows, back comes the report, 22 fracture C1/C2. The pathologist said the radiologist 23 knows. 24 That was the end report in due course to 25 the investigating coroner, Dr. Lucas, who then wrote a
421 death certificate saying cause of death is a fracture 2 C1/C2, consistent with the type of injuries that you 3 would receive in the -- in the automobile collision that 4 had occurred. 5 MS. LINDA ROTHSTEIN: Mm-hm. 6 DR. THOMAS CAIRNS: There had not at this 7 time been great communication between the coroner and the 8 police. Because unbeknownst to the coroner, the police 9 in investigating this scene -- the skid marks off the 410 10 onto the grass verge, were not skid marks, there were no 11 yaw marks, it was a beautiful straight line. 12 And the vehicle had then gone through a 13 wire fence onto an outer road. There were then 14 acceleration marks on there, when it came back through 15 the fence. So the reconstructioners said, that is not 16 consistent with the story we've been given, that at the 17 time of the incident, he was driving, she was asleep on 18 the middle seat in the van. 19 And that his statement was, she'd woken 20 up, thought she saw a car in front of them and had 21 grabbed his arm so he wouldn't hit the vehicle. If that 22 had been the case, there would have been yaw marks, there 23 would have been all sorts of erratic marks on the grass 24 verge, which there weren't. 25 So the reconstructionist felt that the
431 scene did not match his story. In addition, the inside 2 of the van, when it was looked at, there was a young OPP 3 officer, she had just started, but in her previous career 4 she'd done some courses in criminology. She'd taken a 5 very elementary course in blood spatter and she said the 6 pattern of blood spatter in this vehicle is most bizarre. 7 It was taken down to the Centre Forensic 8 Science where it was examined and, certainly, the blood 9 spatter did not, in any way, match the -- the way it 10 should be. 11 MS. LINDA ROTHSTEIN: And, eventually, 12 did that information feed its way back to Dr. Lucas? 13 DR. THOMAS CAIRNS: At that time, Dr. 14 Lucas and the OPP got together and they say, Uh oh, we 15 got a situation. They contacted me personally, and I 16 said, Fine, let's bring the body down. 17 Now, fortunately, the family wanted this 18 lady cremated, but her daughter was insisting that the 19 name on the death certificate be changed to her maiden 20 name. That delayed the cremation, which was fortunate. 21 So they got the body, which was at the crematorium, and 22 brought it down for reexamination. 23 At this time, this was not being looked at 24 as a car -- as a motor vehicle accident. The degree of 25 suspicion had gone up considerably. When it was looked
441 at, Dr. Noel McAuliffe did the autopsy. I was there. 2 But the pattern of bruising on the arms, et cetera, when 3 you looked at were much more consistent with an assault 4 than they were the pattern of bruising you would get in a 5 motor vehicle accident. 6 The second autopsy, in fact, revealed that 7 she had been strangled -- there was a dry neck section 8 done at that time -- that she had been strangled. And 9 then, having been strangled in the back, the whole thing 10 was set up to make it look as if it was an accident. 11 MS. LINDA ROTHSTEIN: And the family were 12 concerned that this had almost been missed? 13 DR. THOMAS CAIRNS: Yes, they were. 14 MS. LINDA ROTHSTEIN: And -- 15 DR. THOMAS CAIRNS: There were -- there 16 were a number of complications because of the delays. My 17 recollection is obviously, at that time, Peel Regional 18 Police took over the investigation because it was -- it 19 was a homicide as opposed to a motor vehicle accident. 20 And there were delays inherent. He was 21 charged with second degree murder and I found -- he was 22 found guilty of manslaughter and part of the reason for 23 that was the length of time and delays that had occurred. 24 MS. LINDA ROTHSTEIN: But leaving that 25 aside and focusing on the coroner issue for the moment,
451 if we may, Dr. Cairns. A complaint arose from the family 2 about the conduct of the investigating coroner, Dr. 3 Lucas. 4 DR. THOMAS CAIRNS: That is correct. 5 MS. LINDA ROTHSTEIN: And the hearing was 6 held to determine whether any disciplinary measures were 7 warranted. 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: And if you look at 10 page 46 of Tab 4, the Committee concluded that the 11 investigating coroner had learned from the sad events and 12 that, indeed, no disciplinary measures were warranted. 13 Am I correct about that? 14 DR. THOMAS CAIRNS: Yes. 15 MS. LINDA ROTHSTEIN: But Justice Then 16 went on with his colleagues to make some systemic 17 recommendations with a view to preventing a similar kind 18 of potential miss in the future. 19 Is that right? 20 DR. THOMAS CAIRNS: That's correct. 21 MS. LINDA ROTHSTEIN: And if you would be 22 good enough to turn to Tab -- to page 48 of that 23 document, at the top of the page, and particularly if you 24 see small double "I" in the middle of the page -- well, 25 starting with under "Coroners" actually, it says:
461 "Present efforts to educate coroners 2 about the issues of the abuse of women 3 should be continued." 4 So this was a case, as I understand it, 5 Dr. Cairns, in which some attention was given to the 6 difficulties of investigating cases where there may be 7 some potential of abuse by one (1) partner of another 8 partner. 9 DR. THOMAS CAIRNS: Correct. 10 MS. LINDA ROTHSTEIN: And the second 11 point that the committee made under that section was 12 that: 13 "The manual being developed for 14 coroners should have a section on 15 femicide, and the section on accidents, 16 homicide and suicide should include 17 information in this area, including 18 information about covering up homicides 19 by staging accidents." 20 DR. THOMAS CAIRNS: Correct. 21 MS. LINDA ROTHSTEIN: And just stopping 22 there for a moment, I take it that at this stage in the 23 work of the Coroner's Office, the coroner's manual -- 24 which you have beside you and we've been using for the 25 last two (2) weeks -- had not yet found its way into
471 publishable form. 2 Am I correct about that? 3 DR. THOMAS CAIRNS: That's correct. 4 MS. LINDA ROTHSTEIN: And that was 5 another project that you were involved in, in your work 6 as the Deputy. 7 Is that true? 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: And it goes on to 10 say that: 11 "New coroners should be trained to have 12 a high index of suspicion; to assume 13 that all deaths are homicides until 14 they are satisfied that they are not." 15 And did your office take that systemic 16 recommendation to heart? 17 DR. THOMAS CAIRNS: Yes, we did. 18 MS. LINDA ROTHSTEIN: And indeed, if you 19 would turn to the next tab. Dr. Cairns, did your -- and 20 that's 032270, please, Registrar. 21 Very shortly after that hearing, did the 22 Coroner's Office create a memorandum to all coroners, 23 pathologists, and policing services dealing specifically 24 with the issue of female homicides by intimate partners? 25 DR. THOMAS CAIRNS: That's correct.
481 MS. LINDA ROTHSTEIN: All right. And if 2 you would be good enough to turn to page 5 of that 3 document, I want to take you to an excerpt of some 4 interest, I think, to the Commissioner. Page 5, please. 5 I'm reading, Dr. Cairns, the first full 6 sentence on that page. 7 "The police and the coroner are both at 8 a scene as independent parties. While 9 working together they should also be 10 prepared to vigorously, but fairly, 11 question each other's conclusions about 12 the death. Everyone should be [quote] 13 'thinking dirty' [close quote] and not 14 get lulled into accepting the most 15 obvious conclusions at the beginning of 16 an investigation." 17 Now, may I ask you, Dr. Cairns, is that 18 the first time, to you knowledge, that the expression, 19 "thinking dirty" found its way into a OCCO policy? 20 DR. THOMAS CAIRNS: Yes. 21 MS. LINDA ROTHSTEIN: Where did you first 22 hear that expression, Dr. Cairns? 23 DR. THOMAS CAIRNS: I think I first heard 24 that expression from Jack Press. 25 MS. LINDA ROTHSTEIN: Who was he?
491 DR. THOMAS CAIRNS: Jack Press had been a 2 Toronto homicide officer who had -- when he retired, had 3 moved over to be the liaison officer for Dr. Hillsdon 4 Smith with -- with police. 5 MS. LINDA ROTHSTEIN: And in what context 6 did Dr. -- did -- sorry -- did Jack Press use that 7 terminology? 8 DR. THOMAS CAIRNS: I think probably as 9 it's explained here, don't -- don't accept things as they 10 are. Think of more sinister applications or there may be 11 a more sinister explanation. 12 MS. LINDA ROTHSTEIN: And if we can go 13 over the page to the last page of that memo, 623, the 14 last sentence reads: 15 "This tragic case serves as an 16 excellent example of the complexities 17 of investigating female deaths and 18 reminds us that we must approach all 19 such investigations with a suspicious 20 mind." 21 DR. THOMAS CAIRNS: Correct. 22 COMMISSIONER STEPHEN GOUDGE: Sorry, 23 where is that? 24 Ms. LINDA ROTHSTEIN: The last page, at 25 the bottom there, Commissioner. The last --
501 COMMISSIONER STEPHEN GOUDGE: Yes, I have 2 it, thank you. 3 4 CONTINUED BY MS. LINDA ROTHSTEIN: 5 MS. LINDA ROTHSTEIN: And again, Dr. 6 Cairns, was that suggestion taken to heart by the 7 coroner's office? 8 DR. THOMAS CAIRNS: Yes, it was, and of 9 interest, at that particular time, given budgetary 10 restraints, the government thought they could do away 11 with all reconstructions and that, sort of, the policeman 12 could be a jack of all trades, and this highlighted the 13 need for experts in reconstruction. 14 It helps me when I'm tied up on the 410 or 15 the 401 for twenty-four (24) hours because you're not 16 allowed to understand why they have to close down the 17 roads. And in fact, that was impetus for ensuring that 18 these specialized services were not disbanded. 19 And following this, I can think of at 20 least three (3) further, shall we say, car accidents 21 where, in fact, because of this a -- a homicide did -- 22 was not missed. And we educated both the police and the 23 coroners to stop using the word, "a car accident;" that 24 there has been a -- a motor fatality. And it may be 25 natural causes, it may be accident, it may be suicide,
511 but if you're subliminally are saying I've been called to 2 a car accident, you're probably subliminally accepting it 3 -- it is an accident. 4 So admittedly, a major issue in terms of 5 both coroners and police keeping an open eye in terms of 6 is this really consistent with an accident, particularly 7 where there was a husband and wife, or a boyfriend and a 8 girlfriend in the vehicle, at the time. 9 MS. LINDA ROTHSTEIN: Now, the notion of 10 having a very high index of suspicion and, indeed, the 11 notion of thinking dirty, what, if any, impact did the 12 experience that your office have with this case and with 13 femicide have on its approach to the in -- investigation 14 of infant deaths? 15 DR. THOMAS CAIRNS: I think one could say 16 that it was just transposed from one to the other. I 17 felt it had a -- exactly the same type of -- of 18 implication. 19 MS. LINDA ROTHSTEIN: And we know, Dr. 20 Cairns, that, indeed, your office was responsible for 21 creating one (1) of the first guidelines that anyone 22 knows of in coroners context dealing with the 23 investigation of sudden and unexpected infant deaths, 24 Memorandum 631 in 1995. 25 But before we look at that again, give the
521 Commissioner the appropriate context; what was the 2 climate that the Coroner's Office was responding to at 3 that time in terms of the level of community alarm about 4 the potential for child abuse? 5 DR. THOMAS CAIRNS: I think the issue of 6 child abuse in the late '80s and early '90s was just 7 starting to become on the horizon. I, certainly, at 8 medical school, had never been taught anything about 9 child abuse, and most of my Canadian colleagues who had 10 graduated in the '70s and the very early '80s had no 11 education about child abuse. 12 And this was something that was -- was 13 starting to -- to be accepted as a sad but real issue in 14 -- in the late '80s, early '90s. 15 MS. LINDA ROTHSTEIN: And had there been 16 any inquests that had increased the level of concern that 17 the OCCO had about that issue? 18 DR. THOMAS CAIRNS: There had, and I had 19 presided over -- over one (1) of those inquests, so that 20 was also occurring. 21 MS. LINDA ROTHSTEIN: All right. Now, 22 we've spent some time with the Commissioner going through 23 the -- the various aspects of that memorandum. Accepting 24 that, indeed, it was a leader in developing protocols 25 around the investigation of sudden and unexpected child
531 deaths at its time, do you now agree with Dr. Pollanen 2 that in 2007, it is better for all members of the Death 3 Investigation Team to approach their work by thinking 4 objectively or thinking about truth, rather than 5 "thinking dirty"? 6 DR. THOMAS CAIRNS: I -- I don't because 7 I think we're playing on a semantic of words. In that 8 directive in 1995, and if you could bring me to the tab 9 because there is the word "think dirty", and then after 10 that there is an explanation of what that means. 11 MS. LINDA ROTHSTEIN: Would you turn up 12 090594, please? I -- I -- 13 COMMISSIONER STEPHEN GOUDGE: Is that in 14 this binder? 15 MS. LINDA ROTHSTEIN: It's in the 16 Coroner's Manual, sir. 17 COMMISSIONER STEPHEN GOUDGE: All right. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Dr. Cairns, I don't 21 think there's any doubt and I don't for a moment suggest 22 that it doesn't -- it isn't explained by meaning that one 23 should have a high index of suspicion, so if that was the 24 passage that you wanted to show me to, there's no doubt 25 about that.
541 DR. THOMAS CAIRNS: That -- that -- that 2 is correct, yes. 3 MS. LINDA ROTHSTEIN: All right. So, do 4 I understand you to say, Dr. Cairns, that in your view 5 this is just a difference of language that doesn't have 6 any actual difference in meaning? 7 DR. THOMAS CAIRNS: That -- that is 8 exactly my position. 9 MS. LINDA ROTHSTEIN: Do you not accept, 10 Dr. Cairns, that at the very least, the language 11 "thinking dirty" may suggest a lack of objectivity, a 12 mind-set that may conclude that there is foul play where, 13 indeed, there isn't any? 14 DR. THOMAS CAIRNS: I think there is a 15 very distinct difference between "thinking dirty" and 16 "acting dirty" and I think "thinking dirty" means do not 17 accept things at face value; consider that there -- that 18 there is something else going on. 19 If -- if I could ask you to direct me to 20 the memo put out by Dr. McLellan in 2004, once again 21 dealing with femicide; it -- it's to try and make -- make 22 a point on semantics of words. 23 COMMISSIONER STEPHEN GOUDGE: Just while 24 you're looking at that, Dr. Cairns, can I just go back 25 and ask a couple of questions about the origination of
551 the phrase? 2 When the memo that you've been taken to of 3 June 1994 was circulated by Dr. Young, was Ontario the 4 first to put that kind of language out to its coroners, 5 pathologists, and policing services, or was that 6 something that was done elsewhere at that time, or do you 7 know? 8 DR. THOMAS CAIRNS: I'm sorry, 9 Commissioner, I -- I couldn't give you a definitive 10 answer on that. 11 COMMISSIONER STEPHEN GOUDGE: Okay. And 12 I took from what you said that what was being sought to 13 be captured then was the recommendation of the coroner's 14 counsel that one should assume all deaths are homicide 15 until satisfied they're not, is that -- 16 DR. THOMAS CAIRNS: Absolutely. 17 COMMISSIONER STEPHEN GOUDGE: That's what 18 you were trying to capture. 19 DR. THOMAS CAIRNS: Yes. That -- that -- 20 that was the intention, yes. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 DR. THOMAS CAIRNS: They were to "think 23 dirty" was a catchy phrase which seemed at the time to 24 bring people's attention to it. 25 COMMISSIONER STEPHEN GOUDGE: Right.
561 DR. THOMAS CAIRNS: It was like the Nike 2 swoosh; it was just a way of saying the same thing and 3 that's -- that's where it was coming from, yes. 4 COMMISSIONER STEPHEN GOUDGE: In lawyers' 5 terms, would that be captured in the notion of a 6 presumption of guilt? 7 DR. THOMAS CAIRNS: No. It was not 8 presumption of guilt, it was to ensure that you haven't 9 missed a homicide. So it would ensure that you do all 10 the appropriate things to -- to satisfy yourself that 11 there hasn't been a homicide. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. THOMAS CAIRNS: Just -- I think, 14 speaking from -- from my own point of view, if you're 15 investigating deaths, I think the one (1) thing we want 16 to make sure we don't do is to let homicides go 17 undetected. And this was: Do not accept at face value 18 things you have to consider that there may be some other 19 explanation. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. THOMAS CAIRNS: But it certainly 22 wasn't as a way of right to everybody, this is an -- 23 automatically a homicide. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
571 MS. LINDA ROTHSTEIN: Dr. Cairns, you had 2 asked me to find you the May 12, 2004, memorandum, 0408, 3 by Dr. McLellan with respect to the issue of females 4 dying of apparent accidental or suicidal manner in the 5 company of a male partner. Commissioner, it's at 032431. 6 I'm going to read to you from that, Dr. 7 Cairns, the language I think you were suggesting was 8 important to us. 032 -- 9 MR. BRIAN GOVER: I wonder -- 10 MS. LINDA ROTHSTEIN: -- 431. 11 MR. BRIAN GOVER: Thank you. I was going 12 to ask that it be brought up for the witness to see. 13 MS. LINDA ROTHSTEIN: I think the 14 language you were going to take me to starts at the 15 bottom of that page, does it not? 16 "Whenever a female dies as a result of 17 apparent suicide or accident where the 18 only witness is a male partner, past or 19 present, the autopsy will be conducted 20 by a regional coroner's pathologist who 21 currently performs homicide autopsies. 22 These autopsies will be conducted as if 23 the death has taken place under 24 suspicious circumstances". 25 DR. THOMAS CAIRNS: That's correct. This
581 is a follow-up memo to the one (1) that you referred to 2 earlier that was put out by Dr. Young. And what this is 3 saying is at those times we were asking the coroner and 4 the pathologist to pay note to the possibility. 5 And here it's been added up a level in 6 that now these autopsies will not be done locally, they 7 will be done only at a forensic pathology centre of 8 excellence and will be done by a forensic pathologist. 9 And that autopsy will be done with heightened concern 10 that this may be a homicide and therefore the examination 11 will be much more elaborate, including peeling back skin 12 and doing a dry neck dissection. 13 So this is going to a greater extent to 14 rule out the possibility that -- that this is a homicide. 15 MS. LINDA ROTHSTEIN: And then turning to 16 the next page, Dr. Cairns. Would you turn to the next 17 page, please, Registrar. 18 "Although this policy deals with 19 apparent accidental and suicidal 20 deaths, coroners and police are 21 reminded to remain vigilant for the 22 possibility of foul play in every 23 circumstance where..." 24 And then it sets out the problematic 25 circumstances.
591 And, again, that's the language that you 2 say, as I understand it, Dr. Cairns, was mean to be 3 captured by the expression "thinking dirty"? 4 DR. THOMAS CAIRNS: Correct. 5 Commissioner, if -- if I could explain to you, and this 6 is not in any way a flippant comment. It's a serious 7 comment, but different people use language in a different 8 way. 9 And I know what Dr. McLellan is saying and 10 I know what Dr. Young and myself were saying. I think 11 they're the same but they're characterized differently. 12 I don't mean this flippantly, but I think the best way I 13 can describe it to you is I would called a shovel a 14 shovel; Dr. McLellan might be inclined to call it an 15 agriculture instrument. 16 MS. LINDA ROTHSTEIN: And that's how you 17 explain the difference of language between this language 18 which we've just examined which was authored by Dr. 19 McLellan and the third -- thinking dirty language which 20 you and Dr. Young were accustomed to using? 21 DR. THOMAS CAIRNS: That is correct. 22 MS. LINDA ROTHSTEIN: All right. Thank 23 you. 24 25 (BRIEF PAUSE)
601 MS. LINDA ROTHSTEIN: I want to turn to a 2 different subject, if we may, Dr. Cairns, and that is the 3 concerns that made their way to you about Dr. Smith's 4 timeliness in preparing and completing post-mortem and 5 consultation reports. 6 Do you remember how long after becoming a 7 coroner it came to your attention that Dr. Smith was slow 8 in completing his post-mortem reports? 9 DR. THOMAS CAIRNS: I think I was 10 starting to get concerns regarding that, if my memory 11 serve -- at around 1997. 12 MS. LINDA ROTHSTEIN: Okay. Would you 13 turn to Volume II. Sorry... 14 15 (BRIEF PAUSE) 16 17 MS. LINDA ROTHSTEIN: Can you turn up 18 134495, please? 134495. 19 MR. ROBERT CENTA: Volume I, Tab 26. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Volume I, Tab 26. 23 Thank you, Mr. Centa. 24 I understand, Dr. Cairns, that these 25 handwritten notes were made by your colleague, Dr.
611 Chiasson? Do you remember revealing those recently? 2 DR. THOMAS CAIRNS: Yes. These appear to 3 be Dr. Chiasson's -- 4 MS. LINDA ROTHSTEIN: Right. 5 DR. THOMAS CAIRNS: -- writing, yes. 6 MS. LINDA ROTHSTEIN: And they're dated 7 July 11, 1994? 8 DR. THOMAS CAIRNS: Correct. 9 MS. LINDA ROTHSTEIN: And if you look at 10 Number 2 -- or let's just create some context here for 11 the Commissioner, sorry. 12 This is a meeting that you and Dr. 13 Chiasson had with Dr. Becker at The Hospital for Sick 14 Children -- 15 DR. THOMAS CAIRNS: Correct. 16 MS. LINDA ROTHSTEIN: -- who was then the 17 Head of the Pathology Department? 18 DR. THOMAS CAIRNS: Yes. 19 MS. LINDA ROTHSTEIN: And had 20 responsibility in that way for the work of Dr. Smith; is 21 that fair? 22 DR. THOMAS CAIRNS: Dr. Becker would have 23 been Dr. Smith's boss. 24 MS. LINDA ROTHSTEIN: If we look at the 25 second paragraph, it appears that Dr. Chiasson reported:
621 "...would like a dedicated forensic 2 pathology assistant to help see Smith 3 apparent backlog of [question mark] 4 sixty (60) plus cases as far back as 5 1992." 6 And can I ask you, Dr. Cairns, does that 7 accord with your recollection that, in fact, there were 8 concerns about the timeliness of Dr. Smith's work going 9 back as far as 1992? 10 DR. THOMAS CAIRNS: Yes, it does. 11 MS. LINDA ROTHSTEIN: And what is being 12 talked about there are coroners cases as opposed to 13 hospital pathology cases. 14 Am I correct about that as well? 15 DR. THOMAS CAIRNS: I -- I think that's a 16 fair assumption because hospital cases would not be a 17 concern for Dr. Chiasson and myself and obviously, we 18 were meeting with Dr. Becker with regard to cases. So I 19 -- although it's not spelled out, I think that is a 20 reasonable conclusion to reach. 21 MS. LINDA ROTHSTEIN: Now -- 22 COMMISSIONER STEPHEN GOUDGE: You said in 23 your question "going back as far as '92." 24 Did you mean '94? Like these notes -- 25 MS. LINDA ROTHSTEIN: No, because it
631 makes note there, sir, about -- 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 Okay. 4 MS. LINDA ROTHSTEIN: --'92, about having 5 been a problem for two (2) years. And so what I meant to 6 suggest to Dr. Cairns was -- 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 MS. LINDA ROTHSTEIN: -- to be fair and 9 make sure he understood -- 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 MS. LINDA ROTHSTEIN: -- is that you, 12 sir, were indeed aware of the problem fairly early on, as 13 early as 1992? 14 DR. THOMAS CAIRNS: As early as 1994, 15 indicating that the problem was going back to 1992. What 16 I -- what I can't honestly tell you is was I aware in '92 17 of the backlog or did I become aware of the backlog going 18 back to 1992 as a result of this meeting in '94. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: All right. Well, 22 why don't we look at one (1) of the first instances that 23 we have reported in our overview reports. You would -- 24 you'll need to turn up a different volume now, Dr. 25 Cairns. I want you to take Volume 2 of the overview
641 reports which are the white volumes, if you will, and 2 turn to Tab 16. 3 4 (BRIEF PAUSE) 5 6 MS. LINDA ROTHSTEIN: 143440. 7 8 (BRIEF PAUSE) 9 10 MS. LINDA ROTHSTEIN: And, Commissioner, 11 just to remind you, Tiffani was born on May 24th, 1993 12 and died on July the 4th of 1993, at the age of three and 13 a half (3 1/2) months. 14 You'll find that on page 4 of that 15 document and turning to paragraph 44. On July the 4th, 16 1993, a first autopsy was completed by Dr. Cassidy, a 17 pathologist at Bellevue General Hospital. 18 We know from paragraph 46, that as a 19 result of a total body x-ray performed, there was a 20 verbal report of several -- several rib fractures which 21 were ultimately reviewed by Dr. Babyn at the Hospital for 22 Sick Children and that Tiffani's body was, ultimately, 23 disinterred, and the second autopsy was conducted on 24 Tiffani on July 13th, 1993 by Dr. Smith. 25 Do you remember that at all, Dr. Cairns?
651 DR. THOMAS CAIRNS: Not -- not 2 specifically. 3 MS. LINDA ROTHSTEIN: All right. The 4 overview report then recounts in paragraphs 1 -- can we 5 go to 158, Registrar, page 62, please -- that according 6 to the notes of Detective Inspector Smith, he tried to 7 contact Dr. Smith on the following occasions; the 25th of 8 October, '93, the 27th of October, '93, the 4th of 9 November, '93, the 17th, question mark, of November, '93, 10 and then continues with some other attempts to reach him, 11 finally culminating in the description at page 160 -- or 12 paragraph 161 at page 63, Registrar -- that on January 13 the 5th, 1994, Detective Constable Skinner obtained a 14 subpoena ordering Dr. Smith to appear at the Ontario 15 Court Criminal Division on January 19, 1994. 16 According to a fax cover sheet, Detective 17 Constable Skinner sent Dr. Smith the subpoena on January 18 5, 1994. The Commission does not have information as to 19 whether Dr. Smith appeared in Court on January 1994 20 pursuant to the subpoena and what, if anything, occurred. 21 Just to complete that, if one goes to 22 paragraph 178, page 71, according to Detective Constable 23 Skinner, he received the Smith report on February 1, 1994 24 from Detective Inspector Smith. 25 Detective Constable Skinner faxed a copy
661 of the Smith report to mish -- Ms. Walsh -- that's Sheila 2 Walsh -- the family attorney, I believe, on that date. 3 Do you recall something of that case, Dr. Cairns? 4 DR. THOMAS CAIRNS: Specifically, no. I 5 see Dr. Bechard, who was the Regional Supervising 6 Coroner, was looking after that case, so I cannot tell 7 you, quite honestly, whether I was aware of this or -- or 8 wasn't aware of this. 9 MS. LINDA ROTHSTEIN: Well, may I ask you 10 this? Was it unusual in 1994 to have a pathologist 11 summoned in order to compel production of their post- 12 mortem report? 13 DR. THOMAS CAIRNS: It was. 14 MS. LINDA ROTHSTEIN: And if that ever 15 came to your attention, and we know there's some 16 subsequent cases in which it indeed did, was that viewed 17 as a serious problem? 18 DR. THOMAS CAIRNS: It would be viewed as 19 a serious problem, yes. 20 MS. LINDA ROTHSTEIN: Let's go to some 21 documents in which you were the author or copy that deal 22 with this same issue. If I could ask you to go back to 23 Volume II of the document brief case, starting at Tab 24 11031068. 25 Now, Commissioner, at this stage, I want
671 to just make the point that many in this room will 2 understand, but I hope will be apparent to anyone looking 3 at these documents. 4 Some of these documents make reference to 5 deceased persons and their hospital and other care. 6 Although you have not given a non-publication order 7 specifically with respect to some of these names that -- 8 unlike this document, may not be redacted, it certainly 9 is the case, sir, that there are statutes which protect 10 the privacy of these individuals, and I just want to 11 caution everyone in their use of these documents outside 12 of this hearing room. 13 COMMISSIONER STEPHEN GOUDGE: Thank you. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: So that is 031068, 17 page 24. Go to the next page, page 2, please. Thank 18 you. So we have there a document in which you are copied 19 as the Deputy Chief Coroner and Chair of the Pediatric 20 Care Review Committee, dated September 12th, 1997. 21 And it is a concern being raised by Dr. 22 Thomas Wilson; who was he? 23 DR. THOMAS CAIRNS: He was the Regional 24 Supervising Coroner for Southwestern Ontario, and he -- 25 his office was in London, Ontario.
681 MS. LINDA ROTHSTEIN: Okay. And he's 2 writing about a child who has died in February of 1997 -- 3 and it's now September -- and he is writing, as I 4 understand it, in an effort to get Dr. Smith to prepare a 5 report? 6 DR. THOMAS CAIRNS: Correct. 7 MS. LINDA ROTHSTEIN: And you are being 8 copied at that stage as the Chair of the Pediatric Review 9 Committee, but help us with that. 10 Why is that -- would the Regional Coroner 11 have seen fit to copy you with this request? 12 DR. THOMAS CAIRNS: It may have been a 13 case that Dr. Walt Wilson wanted to refer to the 14 Paediatric Death Review Committee, but was unable to do 15 so in the absence of the pathology report. 16 MS. LINDA ROTHSTEIN: Or was it the case, 17 Dr. Cairns, that often times when Regional Coroners and 18 others had problems with Dr. Smith, in relation to his 19 responsiveness to their inquiries, for the timeliness of 20 their reports, that they, in fact, directed their concern 21 to you? 22 DR. THOMAS CAIRNS: As time went on, that 23 is absolutely correct. What I can't answer you, is this 24 at the early stage, or was it after this. This is 1997 25 we're now talking about. So we were aware of problems,
691 and certainly as time went on, I was getting more 2 requests, Could I assist? 3 Whether this one (1) was in that regard, 4 or whether it was going to the Committee, I genuinely 5 can't answer you. If there's any documents that will 6 help me with that, I certainly will help you. 7 MS. LINDA ROTHSTEIN: Well, if we look at 8 the next tab, which is Tab 12, and it's 044232. You, 9 indeed, wrote a letter to Dr. Smith yourself, if I 10 understand it correctly, with respect to this same child, 11 because it's the same date of death, February 22, 1997. 12 And in the last paragraph you write: 13 "I certainly understand all the 14 pressures that are being put on your 15 time, but as it is nearly nine (9) 16 months since the death, the local 17 coroner, Regional Coroner, and myself 18 are running out of excuses to give to 19 this family. It would be greatly 20 appreciated if you could forward a 21 report to Dr. Shkrum, Dr. Vetters, and 22 Dr. Wilson as soon as possible." 23 DR. THOMAS CAIRNS: And, in fact, this 24 helps me with regard to the concern. It obviously wasn't 25 that he was going to send it to the Pediatric Review
701 Committee. In this, I write that there had been some 2 concern about an abnormality of one (1) of the ribs, and 3 that this had been forwarded to Dr. Smith from the 4 pathologist, Dr. Shkrum, for an opinion. 5 So this is a delay in the pathologist 6 getting an opinion with regard to the significance or 7 non-significance of the potentially fractured rib. So 8 this is coming to me because of a delay in a case, not 9 the case that's going to come to the Pediatric Review 10 Committee, you're quite correct. 11 MS. LINDA ROTHSTEIN: And give the 12 Commissioner an understanding of how serious a delay of 13 nine (9) months was back in 1997? 14 DR. THOMAS CAIRNS: A delay of an autopsy 15 report of nine (9) months in 1997; there were many, many 16 pathologists whose reports would not be in in that time 17 frame. 18 I think what is more significance is the 19 more that a report may be dealing with something of a 20 potentially suspicious nature, the more importance there 21 is to have that put at the top of your list, and perhaps 22 another case that has no real significance be put down 23 the list. 24 So this is obviously a case where they're 25 asking for some assistance in a case where depending what
711 the result it, it may have some suspicious connotations. 2 And certainly I would feel that that should be moved up, 3 yes. 4 MS. LINDA ROTHSTEIN: So if I hear what 5 you're saying, Dr. Cairns, you're reminding us that with 6 twenty thousand (20,000) death investigations a year, and 7 of that, a third of those autopsied and having post- 8 mortems, there's an awful lot of reports that have to get 9 written? 10 DR. THOMAS CAIRNS: Correct. 11 MS. LINDA ROTHSTEIN: And some of them 12 are in fairly routine cases, after all? 13 DR. THOMAS CAIRNS: Yes. 14 MS. LINDA ROTHSTEIN: And stop me when 15 I'm being unfair, but it wouldn't have been uncommon for 16 some of those routine cases to result in delays of this 17 sort? 18 DR. THOMAS CAIRNS: That's correct. 19 MS. LINDA ROTHSTEIN: But do I also hear 20 you retelling the Commissioner that in a case where there 21 is some concern about it being in suspicious 22 circumstances, you would have expected a report in less 23 than nine (9) months? 24 DR. THOMAS CAIRNS: I would have expected 25 a report in less than nine (9) months, but to be fair to
721 Dr. Smith, he was not the only one, that even though 2 there was that, that I would have had to, in other cases, 3 say can you get your report in for the same reason. 4 MS. LINDA ROTHSTEIN: Let's look at Tab 5 number 15 and just follow the story to the end of our 6 document trail, and it's 044230. And it's dated October 7 7th, 1998, so approximately a year later, Dr. Cairns. 8 And am I correct in my assumption that 9 this is the same case? 10 DR. THOMAS CAIRNS: That -- that is what 11 it appears to be for me, yes. 12 MS. LINDA ROTHSTEIN: So a year has gone 13 by and you are copied on, again, correspondence from the 14 regional coroner, Dr. Wilson, in which he records at the 15 bottom of that page: 16 "Attached are copies of written 17 requests to Dr. Smith from myself and 18 on my behalf from Dr. Cairns, urging 19 him to complete his report. 20 Also, you will see my handwritten notes 21 documenting that I have had telephone 22 contact with Dr. Smith on October 15, 23 '97 and July 6th, '98. I would 24 appreciate any intervention you can 25 devise that will lead to our receiving
731 Dr. Smith's final written consultation 2 report". 3 This letter is actually sent to Dr. 4 Chiasson, who, as we know, by that stage was the chief 5 forensic pathologist. And can you help the Commissioner 6 as to how often concerns of this nature made their way to 7 you, and how often, to your knowledge, they made their 8 way to Dr. Chiasson? 9 Can you assist with that? 10 DR. THOMAS CAIRNS: On -- on a percentage 11 basis, I -- I couldn't -- I think they would, like, make 12 their -- their way to one or another of us. Whether at 13 this stage, Dr. Wilson's frustration was such that he, 14 perhaps, wanted Dr. Chiasson, that he couldn't get Dr. 15 Smith to do it. 16 For Dr. Chiasson to take over the 17 consultation, although it doesn't say so, but it could've 18 gone one (1) of -- of either ways. It may be that Dr. 19 Wilson felt that Dr. Cairns wasn't getting anywhere with 20 Dr. Smith, let's try Dr. Chiasson. 21 MS. LINDA ROTHSTEIN: And, indeed, if you 22 would turn up Tab 17, 056571. We know that Dr. Chiasson, 23 very shortly thereafter, wrote to Dr. Smith about, again 24 what I believe is at least this case and another, am I 25 correct about that? Again, the February 22 date?
741 DR. THOMAS CAIRNS: Sorry, which tab are 2 we at? 3 MS. LINDA ROTHSTEIN: You're at Tab 17, 4 sir. 5 DR. THOMAS CAIRNS: Thank you. Yes. 6 MS. LINDA ROTHSTEIN: So Dr. Chiasson, it 7 would appear, is following up on this case and another? 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: And then finally, 10 our document trail ends on March the 9 -- March the 18th, 11 1999, Tab 20, please, Dr. Cairns. And that's 057156. 12 And it would appear from the second paragraph there that 13 -- and I read: 14 "What is not routine about this case is 15 that Dr. Vetters has gone ahead and 16 completed his report in the absence of 17 Dr. Charles Smith's consultation. 18 Also, attached is a copy of Dr. 19 Vetters' covering note to me in which 20 he comments on the absence of Dr. 21 Smith's report. I advised Dr. Vetters 22 to go ahead and compete his report so 23 we could provide some closure to this 24 matter for the investigating coroner, 25 the OPP, and the family".
751 And so am I right in assuming from that 2 correspondence that indeed that particular repor -- 3 report of Dr. Charles Smith does not appear to have ever 4 been completed? 5 DR. THOMAS CAIRNS: That's the way I read 6 that, also. 7 MS. LINDA ROTHSTEIN: Now, I understand 8 that one (1) of the other regional coroners who was 9 particularly concerned about delays involving Dr. Smith 10 was Dr. Karen Acheson. 11 DR. THOMAS CAIRNS: That's correct. 12 MS. LINDA ROTHSTEIN: And who is she? 13 DR. THOMAS CAIRNS: She was the Regional 14 Supervising Coroner for Georgian Bay areas, it was called 15 then, and she was -- her office was in Guelph. 16 MS. LINDA ROTHSTEIN: And would you turn 17 to Tab 14, please, Dr. Cairns, 136211, Tab -- sorry, did 18 I say -- 14, thank you. 19 COMMISSIONER STEPHEN GOUDGE: And we may 20 have it at Tab 13; I don't know. Is this the letter from 21 Dr. Acheson to Dr. Smith? 22 MS. LINDA ROTHSTEIN: No, this is, if you 23 look at your screen, Commissioner, this -- 24 COMMISSIONER STEPHEN GOUDGE: Oh, yes. 25 No, okay, that's right.
761 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: This one (1) -- do 4 I call it a newsletter, Dr. Cairns, what shall I call 5 this from the Office of the Regional Coroner? 6 DR. THOMAS CAIRNS: Yes, I -- this is a 7 newsletter from the Office of the Regional Coroner for 8 the South Georgian Bay region and it would be sent out 9 most likely to all the coroners who were working in that 10 area, and it may also be sent out to the pathologists 11 working in that area; the second part I'm not perfect 12 about, but it has certainly been sent out to the coroners 13 in that jurisdiction. 14 MS. LINDA ROTHSTEIN: Would it have been 15 typical of regional coroners to have newsletters like 16 this for their investigating coroners? 17 DR. THOMAS CAIRNS: Yes, many of them. 18 The issues in one (1) region may be slightly different 19 from another region and therefore to keep the coroners in 20 that area up-to-date with whatever the particular issues 21 for that area; it was not unusual for it to be done by 22 correspondence of this nature. 23 MS. LINDA ROTHSTEIN: All right. And can 24 -- can you assist me, sir, would you have received copies 25 of these because you were the Deputy Chief Coroner in
771 charge of investigations, would it be reti -- routine for 2 you to be on the mailing list for these newsletters? 3 DR. THOMAS CAIRNS: It would not surprise 4 me. Yes, a lot of these did come to me. 5 MS. LINDA ROTHSTEIN: Nobody expects you 6 to remember them, but I was just curious about that. 7 Would you turn to page 3 of that document? We know this 8 is now May of 1998 and heading number 3 is entitled 9 "Transfers to the Hospital for Sick Children for post- 10 mortem or for consultation". 11 "There are a number of coroners in this 12 region who do not have a local 13 pathologist willing or able to follow 14 the protocol for post-mortem for the 15 children for children under two (2); 16 those coroners have to transfer the 17 body to HSC for post-mortem. There are 18 also a number of pathologists who call 19 the Hospital for Sick Children, most 20 especially Dr. Charles Smith, for 21 consultation during or after the post- 22 mortem of a child. Dr. Smith often 23 agrees to a request for a consult or 24 invites the pathologist to send the 25 slide tissues to him for a second
781 opinion. Unfortunately Dr. Smith has 2 not been able to keep up with these 3 requests and the case cannot be closed 4 because he has not completed the 5 consult; this is a very serious and 6 perplexing problem. I ask that all 7 coroners and pathologists who wish to 8 ask for a pediatric pathologic consult 9 call me before calling Dr. Smith". 10 Does this ring a bell? 11 DR. THOMAS CAIRNS: Yes. 12 MS. LINDA ROTHSTEIN: Tell us about that, 13 please. 14 DR. THOMAS CAIRNS: By this -- by this 15 time, and I had indicated to you earlier that by 1997 and 16 you pointed me back to 1994, but certainly by 1997 this 17 issue was being discussed, and in particular, at a number 18 of regional supervising coroners meetings, and 19 Commissioner, approximately every month to two (2) 20 months, at that time, we would call in all the regional 21 supervising coroners for a one (1) day meeting to discuss 22 issues across the Province that were of significance to 23 all of us. 24 And at a number of those meetings, Dr. 25 Acheson in particular, but others, as well, were
791 indicating their frustration with the delay in getting 2 reports from Dr. Smith and were discussing what they -- 3 we should do about it and they did realize that Dr. Smith 4 was doing a lot of this work so he was being sent a lot 5 of this work, and in addition he was -- when an autopsy 6 was done elsewhere, he was being sent the consultations. 7 The feeling was that either he had too 8 much, or he was slow, and certainly her discussion here 9 was quite clear that she needed to get a handle on this 10 by insisting that her local coroners not send the case to 11 Dr. Smith or not send a consultation to him without going 12 through her, so, well, if in fact there were too many 13 going, she could stop that and refer them elsewhere 14 because of the delays that were occurring. 15 MS. LINDA ROTHSTEIN: And what was your 16 feeling about it at the time, Dr. Cairns? 17 DR. THOMAS CAIRNS: My feeling at the 18 time was similar, yes. 19 MS. LINDA ROTHSTEIN: And did you, in 20 fact, give direction to the Regional Coroners to stop 21 giving consultation work to Dr. Smith -- 22 DR. THOMAS CAIRNS: We -- 23 MS. LINDA ROTHSTEIN: -- or not? 24 DR. THOMAS CAIRNS: -- indicated that if 25 they felt that -- that they weren't going to get it that
801 they should consider referring it to other pathologists, 2 yes. 3 MS. LINDA ROTHSTEIN: Well, help us with 4 exactly how it was put because I don't want to put words 5 in your mouth. Were they encouraged not to refer 6 consultation work to Dr. Smith, or were they just told 7 there may be a problem? 8 DR. THOMAS CAIRNS: They were advised to 9 consider seriously whether they went -- wanted to send a 10 consultation to Dr. Smith in light of the fact that there 11 was a significant delay in getting a report. And that, 12 perhaps, if they -- if they could give it to someone 13 else, they should do so and only keep a consultation if 14 they felt his unique expertise was required for that. 15 COMMISSIONER STEPHEN GOUDGE: That was 16 advice you gave? 17 DR. THOMAS CAIRNS: That's correct. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Now I understand 21 that the frustration, as you've described it, that 22 Regional Coroners had was -- let me see if I understand 23 some of the issues: 24 1. Because families were obviously asking 25 for investigations to be completed and determinations
811 made. 2 DR. THOMAS CAIRNS: Yes. 3 MS. LINDA ROTHSTEIN: That was one (1) 4 aspect. 5 Police were obviously concerned because 6 they had -- particularly in the criminally suspicious 7 area -- decisions to make -- 8 DR. THOMAS CAIRNS: Yes. 9 MS. LINDA ROTHSTEIN: -- right? 10 And did you actually receive -- in 11 addition to what we've seen here from the Regional 12 Coroners -- did you receive complaints from police 13 officers about the timeliness of Dr. Smith's reports? 14 DR. THOMAS CAIRNS: The one that you 15 mentioned earlier, that concern was -- so police would 16 indicate. 17 And I don't know whether this -- exactly 18 this time, but certainly later on, I would then get calls 19 from police, Can you contact and persuade Dr. Smith to 20 get in his report? 21 MS. LINDA ROTHSTEIN: Right. 22 DR. THOMAS CAIRNS: So I was having 23 contact by police officers. 24 MS. LINDA ROTHSTEIN: And when police 25 officers expressed concerns to you about the timeliness
821 of Dr. Smith's reports or, indeed, his responsiveness to 2 their calls, would they -- would it be their practice to 3 put those concerns in writing? 4 DR. THOMAS CAIRNS: In writing to 5 myself. To the best of my knowledge, most of those 6 occasions, it would have been a telephone call as opposed 7 to putting it in writing. 8 MS. LINDA ROTHSTEIN: And that's what 9 police officers tend to do -- they call you up? 10 DR. THOMAS CAIRNS: That's correct. 11 MS. LINDA ROTHSTEIN: All right. And in 12 addition to that, Crown attorneys would have had some 13 concerns. As we know Ms. Walsh, from looking at the 14 Tiffani case, there were other Crown attorneys. Did you 15 hear who... 16 DR. THOMAS CAIRNS: Crown attorneys, per 17 se, were not bringing it to my attention; they may have 18 been bringing it indirectly to my attention if, in fact, 19 they said to the police officer, Go do something about 20 this. But I don't have good recollection of Crowns. 21 Now if there's a document -- but I don't 22 have good recollection of Crowns directly contacting me 23 about delays. 24 MS. LINDA ROTHSTEIN: Now am I right, Dr. 25 Cairns, that by 1998, there would have been some
831 familiarity in your office about the potential that 2 defence counsel might bring applications based on 3 unreasonable delay and that the premise for that might 4 be, indeed, the absence of a post-mortem report that is 5 delaying the progress of a preliminary inquiry? 6 DR. THOMAS CAIRNS: I -- I can't answer 7 you in terms of the undue delay issue with regard to 8 cases getting throw out of court. I'm not sure exactly 9 when that was starting to -- to raise itself as an issue? 10 MS. LINDA ROTHSTEIN: Well, if I just 11 twig your memory with the Askov decision that was 12 determined by the Supreme Court of Canada, I believe in 13 1990; does that assist at all? At some point did Askov 14 concerns, to use the parlance, find their way into these 15 conversations? 16 DR. THOMAS CAIRNS: I'm aware of the 17 Askov decision. And as it applies to pathology reports, 18 I can't tell you exactly -- and it's a perfectly 19 legitimate argument -- where the delay in getting the 20 autopsy report was going to come into that decision with 21 regard to undue delay to getting at trial in a reasonable 22 time. 23 MS. LINDA ROTHSTEIN: Dr. Cairns, do you 24 agree that you and I have just looked at a small snapshot 25 of the written documentation that would have made its way
841 to you raising concerns about the timeliness of Dr. 2 Smith's reports? 3 DR. THOMAS CAIRNS: That's -- that's 4 correct. 5 MS. LINDA ROTHSTEIN: And can you give 6 the Commissioner some sense as to how frequently you 7 received concerns about the timeliness of Dr. Smith's 8 reports in writing as compared with by telephone? 9 DR. THOMAS CAIRNS: The majority of them 10 were still by telephone. 11 MS. LINDA ROTHSTEIN: Okay. So what 12 discussions were there with you and Dr. Chiasson, and 13 indeed with Dr. Young and others, about how the OCCO 14 ought to respond to these concerns about Dr. Smith's 15 timeliness? 16 DR. THOMAS CAIRNS: My recollection is 17 that these were being addressed by Dr. Chiasson and 18 myself, in particular, meeting with Dr. Smith and Dr. 19 Larry Becker at the Hospital for Sick Kids. 20 And I know there's considerable 21 correspondence regarding that. And my recollection is 22 that this is starting around 1997, 1998, 1999, in -- in 23 that general time frame. 24 MS. LINDA ROTHSTEIN: Okay. And starting 25 with Dr. Smith, what was the explanation that he provided
851 with respect to his delays in getting his reports 2 completed? 3 DR. THOMAS CAIRNS: That he was very 4 busy, and that he did not have sufficient auxiliary staff 5 to help him do reports, write reports, type reports. So 6 he felt that he did not have sufficient help. 7 There were occasions when he would come to 8 my office on a case, and I had a very efficient 9 administrative assistant at the time, and he would often 10 say, I wish I had someone like Louise working for me. It 11 would certainly mean that I would not be backlogged the 12 way that I am. 13 So his explanation to us was a lack of 14 proper support services of the Hospital for Sick Kids. 15 COMMISSIONER STEPHEN GOUDGE: Did he mean 16 by that secretarial help? 17 DR. THOMAS CAIRNS: I got the impression 18 he meant, yes, secretarial type staff. In other words, 19 even the comment he made if he'd had somebody like 20 Louise, it would help him greatly. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: And it's true that 24 there -- you and I have looked at, in preparing for your 25 testimony, a number of notes that were taken by Dr.
861 Chiasson about your meetings with Dr. Becker at the 2 Hospital for Sick Children starting in about 1994. 3 You've told us that some of those meetings 4 were indeed about this issue, is that right? 5 DR. THOMAS CAIRNS: That's correct. 6 MS. LINDA ROTHSTEIN: And can you 7 describe for the Commissioner, in general terms, what the 8 response of Dr. Becker was to this concern? 9 DR. THOMAS CAIRNS: What we were being -- 10 what we were saying is, is that at that time the Office 11 of the Chief Coroner had given a grant of money to the 12 Hospital for Sick Kids to assist them in doing autopsies 13 for us. 14 And we felt that some of that money should 15 be going to the proper administrative support for Dr. 16 Smith. We were indicating that we'd want some of that 17 money spent in that area. 18 The meetings would end with, Well we'll 19 see what we can do. But the next meeting would still be 20 the same. So we didn't see any significant difference in 21 terms of Dr. Smith still maintaining that he didn't have 22 proper support. 23 MS. LINDA ROTHSTEIN: Was any thought 24 given to not asking Dr. Smith to do any more coroner's 25 cases, or fewer coroner's cases?
871 DR. THOMAS CAIRNS: That had already been 2 canvassed with the Regional Supervising Coroners, and 3 they were actively doing that -- they were trying to make 4 sure that they reduced the number of cases that were 5 going to him, and the number of consultations that were 6 going to him in -- in that regard. 7 So that he would have an opportunity to 8 catch up. 9 MS. LINDA ROTHSTEIN: Can you assist us 10 at all, Dr. Cairns, as to whether or not there was indeed 11 a reduction in the number of cases that went to Dr. 12 Smith, lets say, post 1998, to use that benchmark? 13 DR. THOMAS CAIRNS: There was -- there 14 was a reduction, but I could not give you figures. But 15 there was a reduction. Some of the Regional Supervising 16 Coroners were actively not sending cases to Dr. Smith. 17 MS. LINDA ROTHSTEIN: And when you say 18 they weren't sending cases, let's just be clear. Were 19 they not sending consultations -- that is to say second 20 opinions -- or were they not sending the original 21 autopsies to begin with? 22 DR. THOMAS CAIRNS: Both. The answer to 23 that question is both. 24 MS. LINDA ROTHSTEIN: So can the 25 Commissioner take from that that they did have available
881 to them some other fee-for-service pathologists who were 2 able to do the work that needed to be re-routed from the 3 HSC? 4 DR. THOMAS CAIRNS: They had -- they were 5 -- we were starting to refer some of them to Hamilton. 6 Before very long Hamilton got behind as well. So there 7 were -- there were -- it wasn't that they could send them 8 to a hundred others, but there were some other areas 9 where they could be sent to at that time. 10 They could have been sent to Hamilton and 11 they could have been sent to London. But they weren't 12 prepared to take on the complete list of things. But 13 they were being referred in those directions. 14 MS. LINDA ROTHSTEIN: And at any stage of 15 your discussions with Dr. Smith about this -- and I -- 16 and I mean to stop it as of 2001, because we know things 17 changed -- did he suggest that he ought to be taking on 18 fewer cases? 19 DR. THOMAS CAIRNS: He -- he never 20 indicated to any of us that, Look, can you -- can you 21 just take me off the rota for six (6) months so that I 22 can complete my backlog of paperwork? 23 MS. LINDA ROTHSTEIN: I want to just 24 focus for a moment on slightly different issue that we've 25 touched on, but not --
891 COMMISSIONER STEPHEN GOUDGE: But before 2 you do that, Ms. Rothstein, can I ask -- throughout this 3 period, did anybody -- either the Office of the Chief 4 Coroner or HSC -- to you knowledge, track the number of 5 cases in this backlog? 6 I mean, we see the number sixty (60) back 7 in '94. Did that number stay flat, go up, go down? 8 DR. THOMAS CAIRNS: I couldn't give you 9 an actual number, Commissioner, but suffice to say it -- 10 it was a significant number. But I couldn't give you an 11 actual number. 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: Do you know the 15 answer to the question whether, in fact, HSC was tracking 16 the number of cases? 17 DR. THOMAS CAIRNS: I can't -- I can't 18 answer -- the Hospital for Sick Kids; it's possible, but 19 if they were, they -- they were not giving that 20 information to us. 21 COMMISSIONER STEPHEN GOUDGE: Were you 22 tracking the backlog? I mean, did you know what his 23 backlog was? 24 DR. THOMAS CAIRNS: I knew it was 25 sufficient that it had to change, but I couldn't have
901 given you a number. But, yes. In other words, it wasn't 2 that he was behind by three (3) -- it was a significant 3 problem. 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: But to answer the 7 Commissioner's specific question, Dr. Cairns -- was the 8 OCCO actually keeping track of the number of cases which 9 Dr. Smith was undertaking, either under a Coroner's 10 Warrant or by consultation? 11 DR. THOMAS CAIRNS: I wasn't. I'm not 12 aware that Dr. Chiasson was, but perhaps he can answer. 13 But I'm -- I wasn't keeping up. 14 MS. LINDA ROTHSTEIN: We should ask him. 15 DR. THOMAS CAIRNS: He may have been 16 keeping him -- yes. 17 MS. LINDA ROTHSTEIN: Okay. 18 DR. THOMAS CAIRNS: I don't want to speak 19 on his behalf. 20 MS. LINDA ROTHSTEIN: So, let's separate 21 out for a moment the iss -- the issue of late reporting 22 from the issue of responsiveness to queries from police 23 officers, Regional Coroners and others -- of Dr. Smith -- 24 who wanted to get in touch with him to discuss his 25 reports; people wanted to get in touch with him to find
911 out when his report would be available -- that sort of 2 thing. 3 Let's use your yardstick of 1997. Did 4 that make its way as a separate concern to you, Dr. 5 Cairns? 6 DR. THOMAS CAIRNS: Yes, it -- yes, it 7 did. MS. LINDA ROTHSTEIN: And why was 8 that? 9 DR. THOMAS CAIRNS: I can't give you the 10 exact time frame; it may have been '97, it may have been 11 '98, it may have been '99. But there -- there came a 12 stage when he would not return calls to the Regional 13 Supervising Coroner, to the coroners and to the police. 14 They just couldn't get in touch with him at all. 15 MS. LINDA ROTHSTEIN: And so what did 16 they do? 17 DR. THOMAS CAIRNS: Well, they would -- 18 they would contact me -- if I could get in touch with him 19 -- so I ended up fielding most of those and getting in 20 touch with Dr. Smith. 21 MS. LINDA ROTHSTEIN: Did he, indeed, 22 return your calls, Dr. Cairns? 23 DR. THOMAS CAIRNS: He returned -- he -- 24 he returned my calls, yes. 25 MS. LINDA ROTHSTEIN: In a timely way?
921 DR. THOMAS CAIRNS: In a timely way, yes. 2 In other words, I -- I had his pager number, as did, best 3 of my recollection, many of the police. I had his pager 4 number, his office number and when I -- when I would call 5 for him, I would get a response in a timely fashion. 6 MS. LINDA ROTHSTEIN: And do you know why 7 it was he was prepared to return your calls, but not the 8 calls of others? 9 DR. THOMAS CAIRNS: It may have been 10 because I was higher up the food chain? 11 MS. LINDA ROTHSTEIN: You don't know? 12 You're -- you're giving us your best guess, are you sir? 13 DR. THOMAS CAIRNS: I'm giving you my -- 14 I mean, my -- my best -- all I'm saying, he -- he did -- 15 he did return my -- my phone calls. 16 MS. LINDA ROTHSTEIN: So, in the course 17 of those kinds of contacts with Dr. Smith, did you say to 18 him, Dr. Smith, you have to be responsive, not just to 19 me, but to others? 20 DR. THOMAS CAIRNS: Yes. 21 MS. LINDA ROTHSTEIN: And what was his 22 reaction? 23 DR. THOMAS CAIRNS: At the time he would 24 say, Yes, you know, I'm very busy and I'll try my best. 25 However, it would repeat itself again and again.
931 MS. LINDA ROTHSTEIN: Did it occur to you 2 at any stage in this, Dr. Cairns, that it would be of any 3 value to put your concern about Dr. Smith's lack of 4 responsiveness in writing to him? 5 DR. THOMAS CAIRNS: I didn't think it was 6 necessary to put it in writing, 'cause I'd made it so 7 explicit verbally. 8 MS. LINDA ROTHSTEIN: All right. Are we 9 now agreed, Dr. Cairns, that Dr. Smith's late reports and 10 unresponsiveness were, perhaps, warning signs that should 11 have been taken more seriously? 12 DR. THOMAS CAIRNS: They -- 13 MS. LINDA ROTHSTEIN: Not just by you; by 14 others? 15 DR. THOMAS CAIRNS: They were warning 16 signs, and they were taken seriously. The problem we had 17 was that Dr. Smith was the pediatric pathology expert. 18 He was the guru, and, therefore, the dilemma was if we 19 stop using him, we're -- stop using a resource that, at 20 that time by everybody was considered to be an invaluable 21 resource. 22 So which was the lesser of two (2) evils; 23 to stop using him because he was delayed or to accept the 24 delays and push on the critical delays that may be 25 affecting court cases and -- and that's the situation we
941 were in. 2 There was no one, at the time, that was 3 considered with the same expertise as Dr. Smith, and it 4 was considered inappropriate or wrong to -- to stop using 5 him, at that time. 6 MS. LINDA ROTHSTEIN: As a systemic 7 issue, Dr. Cairns, do you believe that the OCCO has the 8 primary role in ensuring that post-mortem reports, com -- 9 to be completed by its fee-for-service pathologists, are 10 completed in a timely fashion? 11 DR. THOMAS CAIRNS: Yes. 12 MS. LINDA ROTHSTEIN: Does the OCCO have 13 the tools it needs to fulfill that responsibility? 14 DR. THOMAS CAIRNS: The answer would be 15 yes and no. If it if a fee-for-service pathologist, I 16 suppose you have the tune that you could say, I'm not 17 going to use that fee-for-service pathologist -- until 18 you bring me up to date with your various cases -- we 19 will not -- we will not use you, period. So in that way, 20 there -- there is the tool. 21 If the person is -- is a full-time 22 employee, there's also a tool. So it could've been that 23 we said to Dr. Smith, right, you're not doing anymore. 24 But given the short supply of pathologists, in general, 25 he would not be the only pathologist that would be behind
951 and yet the tool of taking them off was going to create 2 equally a problem because it was putting all that work on 3 someone else who, very shortly, may have been in the same 4 boat. 5 So if there had been an abundance of the 6 proper experts, it certainly would have been, Okay, 7 you're off the rota, and we'll put somebody else on. 8 There's four (4) more people more than willing to pick up 9 your work. We weren't in that fortunate position. 10 MS. LINDA ROTHSTEIN: Commissioner, would 11 this be the appropriate time to take the morning break? 12 COMMISSIONER STEPHEN GOUDGE: Yes. We 13 will rise now for fifteen (15) minutes. 14 15 --- Upon recessing at 11:16 a.m. 16 --- Upon resuming at 11:31 a.m. 17 18 THE REGISTRAR: All rise. Please be 19 seated. 20 COMMISSIONER STEPHEN GOUDGE: Ms. 21 Rothstein...? 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: Thank you very 25 much, Commissioner.
961 Dr. Cairns, I want to just pick up on the 2 little bit that you've told the Commissioner so far about 3 the relationship between the OCCO and The Hospital for 4 Sick Children, particularly the OPFPU, so he has a sense 5 of your involvement in that relationship. 6 You and I know from looking at this time 7 line that the agreement between the Ministry of the 8 Solicitor General and The Hospital for Sick Children was 9 dated September 23, 1991, before you became the Deputy 10 Chief Coroner? 11 DR. THOMAS CAIRNS: Correct. 12 MS. LINDA ROTHSTEIN: And is it fair to 13 say, therefore, that you had no role in its negotiation 14 or drafting? 15 DR. THOMAS CAIRNS: That's correct. 16 MS. LINDA ROTHSTEIN: And indeed, 17 Commissioner, I anticipate that Mr. Sandler will be 18 taking Dr. Young through that process of negotiating and 19 drafting that agreement. 20 Prior to becoming involved in this 21 Inquiry, did you ever have occasion to read that 22 agreement? 23 DR. THOMAS CAIRNS: No. 24 MS. LINDA ROTHSTEIN: Why not? 25 DR. THOMAS CAIRNS: It was to do with
971 budgets and how much we were going to pay for this, that 2 and the other. I can't balance my cheque book so I 3 certainly wasn't interested in the descriptions of money. 4 It just wasn't something that I -- I was interested in, 5 and it was done much better by very significantly 6 appropriated people, both in the office and my 7 understanding also, is within the Ministry itself. 8 MS. LINDA ROTHSTEIN: When you joined the 9 Coroner's Office then, what was your understanding of the 10 way in which the work for the Coroner's Office -- that 11 was being done by the pathologists at The Hospital for 12 Sick Children -- was to be supervised? 13 DR. THOMAS CAIRNS: It was my 14 understanding that Dr. Smith was going to be made the 15 Director of that unit. He had not been formally made the 16 Director but informally, it was anticipated that very 17 shortly after that that he would become the Director, and 18 he would be supervising the work at The Hospital for Sick 19 Kids. 20 MS. LINDA ROTHSTEIN: Right. And indeed, 21 Commissioner, we know from our time line that the 22 official opening of the OPFPU was December the 13th, 23 1991. So that's the short time frame you're referring 24 to, Dr. Cairns? 25 DR. THOMAS CAIRNS: In -- I -- I attended
981 that opening and although he wasn't -- there wasn't a 2 signed -- there was a signed contract with the Office of 3 the Chief Coroner and The Hospital for Sick Kids, but it 4 was not documented in writing at that time that Dr. Smith 5 was the Director. But it certainly was anticipated and 6 one was working on the assumption that was going to 7 happen. 8 MS. LINDA ROTHSTEIN: Yeah. And, 9 Commissioner, indeed we believe it was formalized on May 10 the 29th of 1992, when he was officially appointed as the 11 Director. 12 That accords with your recollection, Dr. 13 Cairns? 14 DR. THOMAS CAIRNS: Yes, it does. 15 MS. LINDA ROTHSTEIN: But who, if anyone, 16 at the OCCO did you understand was responsible for 17 supervising the work of Dr. Smith? 18 DR. THOMAS CAIRNS: I don't think we had 19 any clear indication as to who would be supervising Dr. 20 Smith because this is still in the time period when 21 forensic pathology was a separate division. So there 22 were not -- if you like, say, in the coroner's office 23 itself -- there were no pathologists in the coroner's 24 office per se, but I was aware, if not then -- but 25 generally aware that Dr. Hillsdon Smith had -- had no
991 interest in supervising this stuff being done at the 2 Hospital for Sick Kids. 3 MS. LINDA ROTHSTEIN: And so in 1994, is 4 it fair to conclude that when Dr. Chiasson became the 5 Chief Forensic Pathologist that changed? 6 DR. THOMAS CAIRNS: When Dr. Chiasson 7 became the Chief Forensic Pathologist then, yes, Dr. 8 Smith could be supervised by Dr. Chiasson. 9 MS. LINDA ROTHSTEIN: And I take it that 10 he's the best one to speak about the way in which that 11 supervision took place? 12 DR. THOMAS CAIRNS: As to how it evolved, 13 yes, I think that would be fair. 14 MS. LINDA ROTHSTEIN: I anticipate that 15 we will hear some considerable evidence from Dr. Chiasson 16 about that, Commissioner, in due course. You have told 17 us, though, Dr. Cairns, that you participated in many of 18 the discussions between either or both of Dr. Becker and 19 Dr. Smith on the one (1) hand and Dr. Chiasson on the 20 other with respect to the functioning of the OPFPU and 21 its relationship to the OCCL? 22 DR. THOMAS CAIRNS: Yes. 23 MS. LINDA ROTHSTEIN: And can you assist 24 the Commissioner as to how it was that you became 25 involved in those discussions?
1001 DR. THOMAS CAIRNS: Commissioner, I had 2 been the Chair of the Paediatric Death Review Committee 3 from 1992, so obviously in that role people were 4 thinking, okay, pediatrics goes through Dr. Cairns, and 5 would have been probably at the people in office more 6 familiar with the pediatric side than the others. And 7 when Dr. Chiasson came on board, it was a tag team in 8 that I could assist him in terms of how those issues were 9 affecting the coroners. 10 And it was felt it was -- it would be 11 useful if both of us attended those meetings. He in 12 terms of pathology and me in terms of, indirectly, how 13 the pathology was going to affect the work of coroners, 14 as well. 15 MS. LINDA ROTHSTEIN: Now, Dr. Cairns, 16 you and I, in preparing for your evidence, had an 17 opportunity to look through many of those notes of 18 meetings that Dr. Chiasson prepared, you remember doing 19 that. 20 DR. THOMAS CAIRNS: Yes, I do. 21 MS. LINDA ROTHSTEIN: And am I fairly 22 summarizing the situation as one in which you don't have 23 a lot to add to the notes that Dr. Chiasson prepared by 24 way of independent recollection? 25 DR. THOMAS CAIRNS: No. Well, in fact,
1011 without Dr. Chiasson's notes I would have even less 2 recollection. 3 MS. LINDA ROTHSTEIN: So, Commissioner, 4 in light of the -- the time limits that we all face in 5 presenting evidence in this inquiry, I'm going to ask Dr. 6 Chiasson to assist you with respect to some of the 7 details of those meetings as opposed to Dr. Cairns. 8 But you did tell us, Dr. Cairns, that 9 there was an effort made by the OCCO to persuade the 10 Hospital for Sick Children to increase the amount of 11 clerical support for Dr. Smith? 12 DR. THOMAS CAIRNS: That's correct. 13 MS. LINDA ROTHSTEIN: And that arose out 14 of a concern with respect to the timeliness of Dr. 15 Smith's reports for the Coroner's Office? 16 DR. THOMAS CAIRNS: It rose out of a 17 timeliness of his reports, and secondly, but to a lesser 18 extent, the inability to contact him. So that -- he was 19 saying, Well, message weren't left for me, and if I had 20 more staff they could take the messages and filter them 21 appropriately. But it would have been primarily his 22 issue that he didn't have enough support staff to help 23 him with his reports. 24 COMMISSIONER STEPHEN GOUDGE: Did he have 25 a secretary then or do you know?
1021 DR. THOMAS CAIRNS: My understanding was 2 that there was a pool of secretaries, and my 3 understanding was that he didn't have a secretary that 4 was dedicated solely to himself. What he had indicated 5 to me is the fact that I had Louise, whose only job it 6 was to look after me -- that he indicated that he would 7 like a similar situation. 8 COMMISSIONER STEPHEN GOUDGE: So the unit 9 at Sick Kids didn't have a dedicated administrative 10 support? 11 DR. THOMAS CAIRNS: My understanding was 12 that they had a pool of secretaries, but they weren't 13 deliberately look -- appointed to one (1) individual. 14 COMMISSIONER STEPHEN GOUDGE: A pool for 15 the unit? 16 DR. THOMAS CAIRNS: That's my 17 understanding, Commissioner. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Dr. Cairns, at any 21 stage in those discussions with the Hospital for Sick 22 Children did you learn that Dr. Smith's delay in 23 completing his reports was also a concern with respect to 24 his non-coroner's pathology work, and specifically, his 25 surgical pathology work?
1031 DR. THOMAS CAIRNS: I learnt of that 2 while we were preparing -- preparing for my testimony. 3 MS. LINDA ROTHSTEIN: So the answer to my 4 question is that in -- at the time -- 5 DR. THOMAS CAIRNS: I'm sorry. 6 MS. LINDA ROTHSTEIN: -- when you were 7 having these conversations with the hospital you did not 8 learn that. 9 DR. THOMAS CAIRNS: That's correct. 10 MS. LINDA ROTHSTEIN: Would you take a 11 look at Volume I, Tab 35, please, and it's 137837? This 12 is a letter from Dr. Becker to Dr. Smith and you will see 13 that on the second paragraph it reads: 14 "You were info -- " 15 DR. THOMAS CAIRNS: Sorry, the tab again, 16 please? 17 MS. LINDA ROTHSTEIN: Sorry, that's Tab 18 35, Dr. Cairns. 19 "You were informed about the three (3) 20 incomplete cases from early March 1995 21 on five (5) separate occasions, 22 including my most recent note to you at 23 the beginning of July. If a case is 24 diagnostically difficult for you, you 25 have the option of asking one (1) or
1041 other surgical pathologists to sign out 2 the case. You must, however, 3 specifically request and inform that 4 pathologist so that he is aware that 5 you have transferred that 6 responsibility to him and that he 7 agrees to the transfer. So long as 8 your name is attached to a surgical 9 number, you have the responsibility for 10 signing out that case. One (1) of the 11 consequences of the failure to complete 12 these reports is the enclosed letter". 13 A copy of which I have received today from 14 Dr. Mark Greenberg. We don't have that letter attached 15 anymore, Commissioner. 16 "I am advising you that you must 17 strictly adhere to the departmental 18 guidelines. Furthermore, I would like 19 to suggest that it would be to your 20 benefit to participate sometime in the 21 next year in a CME course on surgical 22 pathology in order to enhance your 23 diagnostic skills so that completing 24 cases in a timely fashion would be less 25 burdensome".
1051 Now, obviously, Dr. Cairns, you were not 2 copied with that letter, but was any such concern ever 3 brought to your attention in the course of your 4 conversations with either Dr. Becker or Dr. Smith? 5 DR. THOMAS CAIRNS: No, it wasn't. 6 MS. LINDA ROTHSTEIN: Would it have been 7 relevant for you and Dr. Chiasson to know about that 8 concern that the hospital had about Dr. Smith's pathology 9 work? 10 DR. THOMAS CAIRNS: Yes, it would. 11 MS. LINDA ROTHSTEIN: Would you take a 12 look at Tab number 36, the next tab, please? I note that 13 this is actually -- oh, this is approximately a year 14 later, it's 137855, April 12th, '96: 15 "Because of procrastination in the 16 recent past with respect to signing out 17 surgical cases I am reminding you that 18 surgical cases which are now 19 outstanding must be signed out as soon 20 as possible. Your responsibility for 21 having those cases signed out in a 22 timely fashion is yours and yours 23 alone. As you know, there have been 24 two (2) instances in the recent past; 25 this third time around we cannot
1061 tolerate any delays. If the cases are 2 not signed out according to the 3 standards of the division of pathology, 4 then this matter will be raised at a 5 higher level and appropriate steps will 6 be taken." 7 And can you assist us, Dr. Cairns, as to 8 your understanding at the time of how much work, that is 9 to say in 1996, Dr. Smith was doing that was surgical 10 pathology as contrasted with his coroner's pathology 11 work? 12 DR. THOMAS CAIRNS: I know that his work 13 at Sick Kids was not purely for our office, that he was 14 carrying on a surgical practice -- pathology practice, as 15 well. 16 My recollection is I thought it was about 17 50/50; about 50 percent of his time was spent doing 18 coroner's autopsies and the other 50 percent of the time 19 was spent doing hospital work. 20 MS. LINDA ROTHSTEIN: All right. 21 Commissioner, when you -- when you have time there's some 22 other letters that are in the following tabs that deal 23 with similar issues, and just so we're clear, they are 24 representative of some of the documents in our database 25 and are not meant to create the impression that they're
1071 exhaustive. 2 But I'm wondering, Dr. Cairns, if you 3 would turn up Tab 40, and it's 137856. Again, this is 4 the year of 1997, it's from Dr. Paul Thorner to Dr. 5 Becker. Did you know Dr. Thorner at all, Dr. Cairns? 6 DR. THOMAS CAIRNS: I did not. 7 COMMISSIONER STEPHEN GOUDGE: I'm sorry, 8 what tab number, 42? 9 MS. LINDA ROTHSTEIN: Tab number 40; 4-0. 10 COMMISSIONER STEPHEN GOUDGE: 40, sorry. 11 I'm one (1) -- 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: Sorry, I missed 15 your answer, Dr. Cairns. 16 COMMISSIONER STEPHEN GOUDGE: Yes, that 17 was my fault. 18 DR. THOMAS CAIRNS: I -- I don't think I 19 knew him, no. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: All right. 23 "And it's re-surgical case complaints; 24 since my return from the pathology 25 conference in Orlando I have come
1081 across four (4) recent cases of Dr. 2 Smith's in which there are diagnostic 3 discrepancies. I am outlining the 4 events below as I understand them". 5 And then, I'm not -- I don't propose to 6 take you through those, Dr. Cairns, but first question 7 would be; are you able to assist the Commissioner as to 8 the seriousness of the diagnostic issues that are 9 recorded in this memo? Or are we better to ask Dr. 10 Chiasson to speak to that issue? 11 DR. THOMAS CAIRNS: In -- in more detail, 12 you can ask Dr. Chiasson, but what is being brought here 13 is an issue of diagnostic discrepancies. So these are 14 issues where other colleagues at the hospital are saying 15 that he is not interpreting histological slides 16 appropriately. 17 Without going into detail, that would be 18 an issue that would want to be addressed and so that 19 would be enough to make me -- yes, I -- I would like to 20 know about that and, obviously, Dr. Chiasson could speak 21 in more detail. But one of the fundamental things about 22 a pathologist is the ability to diagnose things down the 23 microscope -- 24 MS. LINDA ROTHSTEIN: Your point, Dr. 25 Cairns, is that it would have been relevant for you and
1091 other members of the OCCO to know that Dr. Smith's 2 colleagues at the Hospital for Sick Children had 3 identified errors in his surgical pathology diagnostic 4 skills. 5 DR. THOMAS CAIRNS: Very much so. 6 MS. LINDA ROTHSTEIN: And, if we turn to 7 the following tab -- that's Tab 41, sir. It's 137850. 8 This appears to be followed by a letter to Dr. Smith 9 dated April 18, 1997. 10 "Dear Charles: As you are aware, the 11 surgical reports for which you've been 12 responsible have not been completed -- 13 completed according to the established 14 standards agreed upon in 1994. You 15 have received regular reminders over 16 the past two (2) years about the delays 17 in completion of reports. An example 18 of such a letter covering the last 19 several months is enclosed. In 20 addition, during the limited number of 21 weeks per year that you have been 22 responsible for completion of the 23 surgical reports, there have been a 24 disproportion in the number of 25 complaints about diagnostic
1101 inconsistencies from pediatricians and 2 surgeons." 3 And, then, continued in the second 4 paragraph: 5 "Neither Paul nor I can see any 6 improvement in the reporting time or 7 the accuracy of the reports over the 8 past two (2) years. Therefore, I 9 regret to inform you that I must 10 curtail your responsibilities in 11 surgical pathology until you prove to 12 me evidence of successful completion of 13 continuing education courses that will 14 improve your skills in surgical 15 pathology. You must also demonstrate 16 that all records in the division are 17 completed in a timely fashion, 18 consistent with standards established 19 by the hospital. You will not be doing 20 surgical pathology on a regular 21 rotation and, accordingly, the salary 22 from the Division of Pathology will be 23 reduced by twenty thousand (20,000) for 24 1997." 25 Did it ever come to your attention that
1111 the hospital had taken that measure? 2 DR. THOMAS CAIRNS: No, it did not. 3 MS. LINDA ROTHSTEIN: Did it ever come to 4 your attention that the hospital was taking the position 5 that Dr. Smith needed more education in the area of 6 surgical pathology? 7 DR. THOMAS CAIRNS: No, it did not. 8 MS. LINDA ROTHSTEIN: And what, if any, 9 influence would that have had on your confidence in Dr. 10 Smith? 11 DR. THOMAS CAIRNS: Well, part of the 12 role and -- of -- of the pathologist, particularly in 13 children's autopsy, would be the histological 14 examination; what he was seeing down the microscope. 15 It was our belief that Dr. Smith was a 16 pathologist at the Hospital for Sick Kids with an 17 excellent reputation and be diagnostically accurate in 18 histological samples. 19 The histological samples that he'd be 20 doing in his hospital work may well be very similar to 21 the type of histological samples he'd be looking for us. 22 So this -- this would indicate a -- a ser -- a serious 23 concern about his diagnostic abilities. 24 MS. LINDA ROTHSTEIN: And looked at 25 systemically, Dr. Cairns, is this evidence of a
1121 disconnect between the Hospital for Sick Children, on the 2 one hand, and the OCCO on the other? 3 DR. THOMAS CAIRNS: Yes, it -- it is my 4 feeling that it would have been very helpful if, when Dr. 5 Chiasson and myself were having meetings with Dr. Becker 6 and sharing our concerns -- and our concerns were 7 primarily with his delay, but that it would have been 8 extremely helpful for there had been some sharing of this 9 information with -- with us. 10 It obviously would have made a significant 11 difference. What the legalities of that are, I can't 12 answer. But, certainly, it would have been of great 13 assistance to us. Because we were never in the position 14 where we felt his histology was -- was questionable. 15 COMMISSIONER STEPHEN GOUDGE: Did Dr. 16 Becker ever say, We had the same problems about delay 17 that you're complaining to us about? 18 DR. THOMAS CAIRNS: No. No, he didn't. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Dr. Becker 22 regrettably is deceased, so we will not be able to call 23 him as a witness. And to be fair to the Hospital for 24 Sick Children, Dr. Cairns, to your knowledge, do any of 25 the other hospitals that employ pathologists who the OCCO
1131 uses on a fee-for-service basis to do medicolegal 2 autopsies, do any of those pathologists provide 3 information to the OCCO about the quality of those 4 pathologists' hospital and surgical work? 5 DR. THOMAS CAIRNS: I personally am not 6 aware of any of them doing that for us. 7 MS. LINDA ROTHSTEIN: So the scope of 8 information sharing is indeed a systemic issue that the 9 Commissioner will have to consider? 10 DR. THOMAS CAIRNS: I think it's an issue 11 that would deserve serious consideration, yes. 12 MS. LINDA ROTHSTEIN: And, Commissioner, 13 if I can also make clear that the database indeed 14 reflects that at some point after this letter was 15 written, Dr. Smith was reinstated to surgical cases, and 16 we will do what we can when we call evidence from the 17 Hospital for Sick Children to fill in some of the blanks 18 that at the moment are left in our understanding of that 19 narrative. 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER STEPHEN GOUDGE: Before you 24 turn from this letter, Ms. Rothstein, there's reference 25 in this correspondence to the required practice for time
1141 lines here. Did you have anything like that as far as 2 the Chief Coroner's Office was concerned? 3 Did you have time lines for the 4 preparation of either post-mortem reports or consultation 5 reports? 6 DR. THOMAS CAIRNS: Yes, there were time 7 lines for those, and it was now -- they started to be 8 developed once Dr. Chiasson became the Chief Forensic 9 Pathologist. 10 And in discussing the time lines, he 11 discussed it with the pathologists across the province, 12 what would be a reasonable time line. And it was felt 13 that a reasonable time line should be three (3) to four 14 (4) months unless the report required ad -- additional 15 testing that was beyond the control of the pathologist 16 such as if they were waiting for a toxicology report, 17 then they couldn't complete the report until that was 18 obtainable, which was beyond their control. And then 19 that within a month of obtaining whatever report was 20 outstanding, that their -- their reports should be in. 21 COMMISSIONER STEPHEN GOUDGE: All right. 22 So those time lines were circulated when, do you think? 23 DR. THOMAS CAIRNS: My recollection they 24 would be certainly in circulation by -- by '97. Dr. 25 Chiasson may be able to more accurately --
1151 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. THOMAS CAIRNS: -- reflect the 3 timing. 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: Dr. Cairns, how 7 frequently did you actually visit the OPFPU at the 8 Hospital for Sick Children? 9 DR. THOMAS CAIRNS: I visited it 10 frequently. 11 MS. LINDA ROTHSTEIN: And that was to 12 visit Dr. Smith? 13 DR. THOMAS CAIRNS: It would have been to 14 visit Dr. Smith, to attend an autopsy, or to attend 15 rounds that were being held at Sick Kids, or where I'd be 16 there on other death investigation business. So I was a 17 frequent visitor to the Hospital for Sick Kids. 18 And a frequent visitor to Dr. Smith's 19 office. 20 MS. LINDA ROTHSTEIN: Can you describe it 21 for the Commissioner please? 22 DR. THOMAS CAIRNS: It was the most 23 untidy office that I've seen. But I say that with some 24 reluctance, 'cause my office at home isn't very good 25 either. But it -- it was more untidy then -- then mine,
1161 and I -- I know that there are people who are excellent 2 that although it looks chaotic, they know everything's in 3 its right place and don't touch it, 'cause they know 4 where to find it. 5 I did not get the impression that this was 6 organized chaos. 7 MS. LINDA ROTHSTEIN: Can you pull up 8 378518, please? This is not in your binder, sir. 9 10 (BRIEF PAUSE) 11 12 MS. LINDA ROTHSTEIN: Actually sorry, 13 137518. There we go. Can you move that up a little bit? 14 Thank you. And can you look at -- can you turn to page 4 15 as well, please, Registrar? 16 Okay, that was page 4? Sorry. And that's 17 page 8, is it? And now page 9, please. 18 19 (BRIEF PAUSE) 20 21 MS. LINDA ROTHSTEIN: Is there one (1) 22 more? There we go. Thank you. Do you recognize that, 23 Dr. Cairns? 24 DR. THOMAS CAIRNS: It certainly is 25 consistent with Dr. Smith's office. I obviously can't
1171 say from the photograph but I -- at the same time I have 2 nothing to indicate that that's not Dr. Smith's office. 3 MS. LINDA ROTHSTEIN: Well, we know 4 indeed that it was taken by a clerk of The Hospital for 5 Sick Children in 2001. Is it a fair representation of 6 Dr. Smith's office at the times you visited, sir? 7 DR. THOMAS CAIRNS: Yes, it is. 8 MS. LINDA ROTHSTEIN: Is it messier than 9 the office that you viewed or is that what it looked 10 like? 11 DR. THOMAS CAIRNS: I've seen it messier. 12 Now these are -- 13 COMMISSIONER STEPHEN GOUDGE: You mean 14 Dr. Smith's office was messier? 15 DR. THOMAS CAIRNS: Yes. These are what 16 I'd call "cubby holes". They -- you may work at Sick 17 Kids as an institution but you certainly don't get 18 anything of a large office. So one (1) might have said 19 to a certain extent, given the limited amount of space, 20 that it explains it. 21 But I -- I had occasion to be in the other 22 pathologists' office which were of a similar size and 23 their office was not in the same state of disarray. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
1181 MS. LINDA ROTHSTEIN: So looking at that 2 office and hearing from Dr. Smith that his problem was 3 clerical support, were you not concerned that the problem 4 of his delay in providing reports was something other 5 than that? 6 DR. THOMAS CAIRNS: Well, if -- if he had 7 someone working for him then perhaps they could have 8 tidied this all up so that he could find reports. 9 MS. LINDA ROTHSTEIN: You are aware, Dr. 10 Cairns, that on April 15th, 2005, the Court of Appeal for 11 Ontario upheld the Order of Justice Trafford to stay the 12 prosecution of Anthony Kporwodu and Angela Veno on 13 charges of second degree murder of their daughter? 14 DR. THOMAS CAIRNS: Yes, I am. 15 MS. LINDA ROTHSTEIN: Okay, and if you 16 would look at Volume III please, Tab 10. We have a copy 17 of the Judgment. You want to turn to page 6, please. So 18 it's 084724 at page 6. 19 DR. THOMAS CAIRNS: Did you say "Tab 10"? 20 MS. LINDA ROTHSTEIN: I said Tab 10, 21 please. 22 DR. THOMAS CAIRNS: That's the Court of 23 Appeal -- 24 MS. LINDA ROTHSTEIN: Yeah. 25 DR. THOMAS CAIRNS: -- that I have? Yes.
1191 MS. LINDA ROTHSTEIN: That's what I 2 wanted to refer you -- 3 DR. THOMAS CAIRNS: Okay. 4 MS. LINDA ROTHSTEIN: -- to. 5 DR. THOMAS CAIRNS: Thank you. 6 MS. LINDA ROTHSTEIN: I'm just trying to 7 find my point here. There it is. I'm reading from 8 paragraph 14. 9 DR. THOMAS CAIRNS: Sorry, the page -- 10 the page again, please? 11 MS. LINDA ROTHSTEIN: Page 6. 12 DR. THOMAS CAIRNS: Six (6)? 13 MS. LINDA ROTHSTEIN: 14 "It is inescapable that the trial of 15 this matter was delayed for the better 16 part of two (2) years because of the 17 failings of the chief Crown witness, 18 Dr. Charles Smith, the pathologist who 19 performed the autopsy on Athena. But 20 for those failings which we will detail 21 in due course, the trial of this matter 22 should have occurred within two (2) to 23 two and one-half (2 1/2) years 24 following the time that the respondents 25 were first charged. Apart from the
1201 complexities of the pathological 2 evidence, which we will acknowledge, 3 this was not otherwise an overly 4 difficult or complex case. There were 5 not a lot of witnesses; the central 6 issues were narrow and well defined. 7 Had the trial proceeded, the outcome 8 would have turned on three (3) critical 9 findings: the cause of Athena's death, 10 the timing of her injuries, and the 11 person or persons responsible for 12 inflicting them. Taking into account 13 systemic dis -- delays, inherent 14 delays, and delays attributable to the 15 defence, on any reasonable assessment 16 of the matter but for lengthy periods 17 of delay attributable to Dr. Smith, it 18 should not have taken three and one- 19 half (3 1/2) years to try Ms. Veno and 20 four and one-half (4 1/2) years to try 21 Mr. Kporwodu." 22 And you accept that in light of that 23 finding, Dr. Cairns, the OCCO, for its part, ought to 24 have done more sooner to address the problem that it knew 25 about in respect of Dr. Smith's delayed reports?
1211 DR. THOMAS CAIRNS: In this particular 2 case? 3 MS. LINDA ROTHSTEIN: In every case. To 4 address the issue of Dr. Smith's delays. 5 DR. THOMAS CAIRNS: Obviously, with -- 6 with this finding and the issue that it may be affecting 7 under the need for a reasonable trial in a reasonable 8 period of time, yes. 9 MS. LINDA ROTHSTEIN: All right. I want 10 to turn, then, Dr. Cairns, to your involvement in some of 11 the key events that are set out in this time line. And I 12 want to begin by focussing on your involvement in the 13 twenty (20) cases that have been identified by the Chief 14 Coroner's Review. To the extent possible, Dr. Cairns and 15 Commissioner, I propose to try and do that in 16 chronological order by year. 17 An examination of our database and 18 overview reports suggests that you were involved in five 19 (5) cases -- Paolo's case -- you know what I'm talking 20 about, Dr. Cairns? 21 DR. THOMAS CAIRNS: Yes, I do. 22 MS. LINDA ROTHSTEIN: Your first 23 involvement began in 1994, and then you had some 24 considerable involvement in 2002? 25 DR. THOMAS CAIRNS: Correct.
1221 MS. LINDA ROTHSTEIN: Nicholas's case in 2 which your first involvement was in 1996 and continued 3 for a number of years. 4 DR. THOMAS CAIRNS: Correct. 5 MS. LINDA ROTHSTEIN: Jenna's case in 6 which your involvement began in 1997? 7 DR. THOMAS CAIRNS: Correct. 8 MS. LINDA ROTHSTEIN: Sharon's case in 9 which your involvement began in 1997 as well? 10 DR. THOMAS CAIRNS: Correct. 11 MS. LINDA ROTHSTEIN: And I believe you 12 had some limited involvement in Tamara's case in 13 obtaining, or at least facilitating, a review that was 14 done in 2001; it was fairly limited involvement. 15 Is that right? 16 DR. THOMAS CAIRNS: That's correct. 17 MS. LINDA ROTHSTEIN: Right. Just before 18 we turn to those individual cases, in light of the review 19 that was done by Drs. Cairn, Milroy, Butt, Whitwell and 20 Saukko, do you now accept that Dr. Smith's conclusions, 21 in those cases, was in error? 22 DR. THOMAS CAIRNS: I accept the opinion 23 of the five (5) experts in the cases they have reviewed. 24 MS. LINDA ROTHSTEIN: Indeed, that his 25 conclusions were in error in a total of twenty (20)
1231 cases. 2 DR. THOMAS CAIRNS: Correct. 3 MS. LINDA ROTHSTEIN: Dr. Cairns, I 4 propose to focus mos -- mostly on four (4) of the cases; 5 Paolo, Nicholas, Jenna and Sharon. But before I do, do 6 you remember anything further about Tiffani's case and, 7 particularly, the involvement of Sheila Walsh as the 8 Crown attorney? 9 Remember, that was the first one you and I 10 turned up this morning, and I heard you to say you didn't 11 really remember if you were involved or not. 12 DR. THOMAS CAIRNS: I -- I it's not -- 13 it's not coming to me. If you've showed some 14 documentation, but off the top of my head, it's not 15 coming that I had any significant involvement. 16 MS. LINDA ROTHSTEIN: Yeah, let me just 17 see if this spurs a memory. Dr. Smith lost and then 18 found the slides which the defence wished to review -- 19 does that -- was that something you were involved in? 20 DR. THOMAS CAIRNS: Not that -- 21 MS. LINDA ROTHSTEIN: In Tiffani's case? 22 DR. THOMAS CAIRNS: Not to the best of my 23 recollection. 24 MS. LINDA ROTHSTEIN: All right. Let's 25 turn to Paolo's case then. And we're in 1994,
1241 Commissioner, and we're going to try and make our way 2 forward from there. We don't have an overview report in 3 this case, so I want to review with you, Dr. Cairns, some 4 of the documents that set out the early involvement which 5 you and the OCCO had in this case. 6 I'm taking this from the Court of Appeal 7 decision, Dr. Cairns, just to remind you: 8 "Paolo was eight and a half (8 1/2) 9 months when he died unexpectedly in May 10 of 1993." 11 Do you recall that? 12 DR. THOMAS CAIRNS: I do. 13 MS. LINDA ROTHSTEIN: And after the 14 autopsy, the coroner and the pathologist decided that it 15 was a case of SIDS? 16 DR. THOMAS CAIRNS: Correct. 17 MS. LINDA ROTHSTEIN: The child had been 18 treated in January of 1993 for injuries following what 19 was reported as a fall, and skull fracture was detected 20 on the X-ray at that time? 21 DR. THOMAS CAIRNS: Correct. 22 MS. LINDA ROTHSTEIN: If you look at 23 Volume IV then, Tab 30, Dr. Cairns. 24 Oh is it Volume II, Mr. Centa? Sorry. 25 089043. Sorry, Volume II.
1251 DR. THOMAS CAIRNS: Tab again, please? 2 MS. LINDA ROTHSTEIN: Volume II, Tab 30. 3 4 (BRIEF PAUSE) 5 6 MS. LINDA ROTHSTEIN: I believe it's a 7 letter that you authored on May the 30th, 1994 to the 8 regional coroner, and it's 089843. 9 DR. THOMAS CAIRNS: Yes, I've got it. 10 MS. LINDA ROTHSTEIN: Just wait for the 11 Registrar. Your writing to him explaining how you became 12 involved in this case, and you note: 13 "Dr. Bechard called me last week as a 14 result of concerns in the Kingston area 15 regarding this family. Seemingly, 16 another sibling is presently in 17 hospital with a fractured femur, which 18 occurred while in the sole custody of 19 the father. Children's Aid are aware 20 of this case". 21 So can you just assist the Commissioner 22 with how this case made its way to you, at this stage? 23 DR. THOMAS CAIRNS: My recollection is 24 that an orthopedic resident in the hospital in Kingston 25 had a child in with a fractured femur, and the resident
1261 was concerned that this may be a non-accidental injury to 2 the femur, had noted in the history that was taken that 3 another child in the family had died prior to this, and 4 that the diagnosis, at the time, was SIDS. 5 The orthopedic resident was contacting Dr. 6 Bechard, who was a regional supervising coroner for that 7 area, asking could Dr. Bechard assist on the accuracy of 8 that statement. Dr. Bechard, the death of the first 9 child had not occurred in his region, so he contacted me. 10 MS. LINDA ROTHSTEIN: Looking at page 2 11 of that letter, Dr. Cairns, you say: 12 "In view of this recent information, I 13 request this case be reopened for 14 further investigation". What did you 15 contemplate by that? 16 DR. THOMAS CAIRNS: When I looked at the 17 coroner's form 3, relating to Paolo's death, I did not 18 agree that it met the criteria to be called a SIDS. The 19 issue that Children's Aid had been involved, the issue 20 that there had been a skull fracture indicated it was not 21 a SIDS. 22 And now with a potentially suspicious 23 injury to another sibling, I felt that this case had to 24 be reopened, and contacted -- and that the -- the 25 relevant police department needed to be contacted.
1271 MS. LINDA ROTHSTEIN: All right. And if 2 we look at the next document in this binder at Tab 31, 3 002565. Shortly thereafter, you do a memo to file, June 4 10, 1994, following a meeting which you had with Dr. Pal 5 -- Paul Babyn at the Hospital for Sick Children. 6 So at this stage, had you, in a way, taken 7 over or the beginning of the new investigation of the 8 death of this child? 9 DR. THOMAS CAIRNS: That's correct. 10 MS. LINDA ROTHSTEIN: All right. And I 11 take it, sir, that that was something that happened from 12 time to time. A case that was closed was reopened, it 13 was brought up to your level of the organization because 14 of its potential complexity and seriousness, is that 15 right? 16 DR. THOMAS CAIRNS: I -- I think that's a 17 fair assessment. 18 MS. LINDA ROTHSTEIN: And in effect, you 19 do some of the reinvestigation work that would, in the 20 ordinary course, be done by the local investigating 21 coroner? 22 DR. THOMAS CAIRNS: Correct. 23 MS. LINDA ROTHSTEIN: All right. And so 24 with that in mind, you go off to the Hospital for Sick 25 Children and you meet with Dr. Babyn -- and can you take
1281 it from there, Dr. Cairns, and tell us what -- what your 2 thinking was as a result of those discussions? 3 DR. THOMAS CAIRNS: There obviously were 4 x-rays that had been taken when the child was seen alive 5 with a head injury, and there were -- been subsequent x- 6 rays taken at the time of the child's autopsy, which was 7 also done in Oshawa. 8 And I wanted Dr. Babyn's opinion on those 9 x-rays since he was a pediatric radiologist, while in 10 Oshawa it would have been a regular radiologist who read 11 them. And not to criticize the regular radiologist, but 12 ideally, if it's a pediatric x-ray, you want a pediatric 13 radiologist to read them, and Dr. Babyn was certainly 14 extremely well qualified in that role. 15 MS. LINDA ROTHSTEIN: And at this stage 16 of the reinvestigation, in your meeting with Dr. Babyn, 17 did you include Dr. Smith in that or was that something 18 you did on your own? 19 DR. THOMAS CAIRNS: My recollection is, 20 this may have been before Dr. Smith was included in it. 21 MS. LINDA ROTHSTEIN: All right. But 22 following your discussions with Dr. Babyn, what did you 23 learn? 24 DR. THOMAS CAIRNS: He indicated to me, 25 this would have been verbally at the time, that he had
1291 concerns about the types of fractures present in the 2 January '93 x-rays, that would have been the time when 3 the child was seen in the Emergency Department for a head 4 injury, and also concerns about abnormalities that were 5 present on the x-rays taken at autopsy, but which had not 6 been reported on the original x-ray report. 7 He indicated that -- to me that he would 8 examine the x-rays in more detail and when he had done 9 that, he would forward to me a written medicolegal 10 report. 11 MS. LINDA ROTHSTEIN: All right. And I 12 take it at that stage what you saw fit to do was to 13 arrange a meeting, a case conference, perhaps, is the 14 best description, at the Office of the OCCO with a 15 variety of people, police, and others, to review where 16 you go next, is that right? 17 DR. THOMAS CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: And if you look at 19 the next tab, which is Tab 32, 002569, indeed you 20 prepared a memorandum to file following a meeting on that 21 date with a number of persons who were assisting in this 22 reinvestigation, is that correct? 23 DR. THOMAS CAIRNS: Correct. 24 MS. LINDA ROTHSTEIN: And so Detective 25 Kimmerely was there from Durham, Detective Sergeant
1301 Mercier was there also from Durham, at this stage Dr. 2 Smith had been asked to participate. 3 Is that right? 4 DR. THOMAS CAIRNS: Correct. 5 MS. LINDA ROTHSTEIN: Dr. Peter Clark, 6 the Regional Coroner, Mr. Wolski, who was legal counsel 7 to your office, correct? 8 DR. THOMAS CAIRNS: Correct. 9 MS. LINDA ROTHSTEIN: And you. 10 DR. THOMAS CAIRNS: That's correct. 11 MS. LINDA ROTHSTEIN: And it appears that 12 at this stage Dr. Smith is beginning to offer some 13 opinions with respect to the issues in the case. 14 Is that fair? 15 DR. THOMAS CAIRNS: That's fair. 16 MS. LINDA ROTHSTEIN: If we look at the 17 bottom of the page he's -- you record: 18 "Dr. Smith has raised some issues 19 regarding the weight of the brain and 20 the weight of the child and based on 21 all of these concerns it has been 22 decided that Durham Regional Police 23 Homicide Unit should reinvestigate the 24 death." 25 DR. THOMAS CAIRNS: Right.
1311 MS. LINDA ROTHSTEIN: And at that stage 2 can you assist us whether or not any decision was reached 3 about exhumation? 4 DR. THOMAS CAIRNS: At that time a 5 decision was made that the Durham Police should go to 6 Kingston for some interviews there and supply the 7 Children's Aid Society there with whatever was necessary 8 and that the microscopy from the autopsy, as well as 9 reviewing the photographs of the body should be 10 undertaken, in addition, all medical records of deceased 11 should be obtained, and once further investigation had 12 been carried, the decision was we would meet again to 13 discuss, in light of those investigations, what should be 14 done. 15 So at -- at this time no decision has been 16 made one way or another as to whether we would be 17 recommending an exhumation. 18 MS. LINDA ROTHSTEIN: And can we assume, 19 Dr. Cairns, that the review of the microscopy and the 20 photographs of the body and so on, that was to be 21 undertaken by Dr. Smith. 22 DR. THOMAS CAIRNS: That's correct. 23 MS. LINDA ROTHSTEIN: All right. And 24 indeed can we assume, sir, we don't have a note of it, 25 but is there any doubt that there was a followup meeting
1321 which resulted in a decision that the body of this baby 2 ought to be exhumed? 3 DR. THOMAS CAIRNS: There is -- you -- 4 there is no doubt that at a result of these Inquiries a 5 decision was made to exhume the body of the baby. 6 MS. LINDA ROTHSTEIN: And indeed if we 7 look at Tab 33, 002579, that is your warrant for post- 8 mortem examination, is that correct? 9 DR. THOMAS CAIRNS: That -- that is 10 correct. 11 MS. LINDA ROTHSTEIN: And in the -- on 12 the second page of that document, I'm just looking, it's 13 actually a different document number, 002581, but I think 14 that's -- in fact the second page of that document you 15 record in the penultimate paragraph: 16 "In light of the concerns that have 17 been raised by the reinvestigation so 18 far it has been decided that this 19 baby's body should be exhumed and that 20 a second autopsy be conducted by Dr. 21 Charles Smith." 22 DR. THOMAS CAIRNS: Correct. 23 MS. LINDA ROTHSTEIN: And I take it, at 24 this stage, in 1994, if there was a case of this 25 complexity involving a young child, whether that child
1331 had been originally autopsied outside of Toronto or not, 2 the person who is going to do the second post-mortem was 3 Dr. Smith? 4 DR. THOMAS CAIRNS: Correct. 5 MS. LINDA ROTHSTEIN: All right. Now -- 6 COMMISSIONER STEPHEN GOUDGE: Remember at 7 this point, Dr. Cairns, whether there was a concern about 8 whether the findings strongly suggestive of non- 9 accidental injury were thought possibly to relate to the 10 cause of death? 11 DR. THOMAS CAIRNS: Yes. And, 12 Commissioner, to the best of my recollection since that 13 was a concern, rather then exhuming this body on a 14 coroner's warrant which we're entitled to do, we had it 15 exhumed on an Attorney General's warrant so we would not 16 run into any issue as a result of the Supreme Court 17 ruling on Calarusso (phonetic) as to where a coroner's 18 investigation is interfering with a criminal 19 investigation. 20 COMMISSIONER STEPHEN GOUDGE: And do you 21 remember who expressed the concerns about the linkage 22 between the non-accidental injuries or the possible non- 23 accidental injuries, and the cause of death? Would that 24 have been Dr. Smith, or do you know? 25 DR. THOMAS CAIRNS: It could have been a
1341 combination of Dr. Smith and Dr. Babyn. They probably -- 2 each of them would have some -- some bearing on -- on 3 that. 4 COMMISSIONER STEPHEN GOUDGE: All right. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Dr. Cairns, I 8 believe the autopsy was actually conducted at the OCCO. 9 We don't have any documents that reflect that; do you 10 remember that? 11 DR. THOMAS CAIRNS: I -- I will take your 12 wo -- I don't have independent recollection as we sit 13 here. 14 MS. LINDA ROTHSTEIN: Simply curious 15 about in what circumstances re -- a second autopsy would 16 take place at the Coroner's Office as opposed to at the 17 Hospital for Sick Children? 18 DR. THOMAS CAIRNS: The second autopsy, 19 where it was probably going to be of a skeletal nature, 20 were more likely to be done at the Coroner's Office. 21 MS. LINDA ROTHSTEIN: Why was that? 22 DR. THOMAS CAIRNS: We had a pathology 23 assistant, Barry Blenkinsop, who was very good in 24 dissection of skeletal type remains. 25 MS. LINDA ROTHSTEIN: All right.
1351 Commissioner and Dr. Cairns, I'm actually going to now 2 turn to try and be true to the chronological development 3 of this narrative, to Nicholas' case. 4 And if you would take a copy of Volume 2 5 of the overview reports, which is your white volume, 6 please. 7 8 (BRIEF PAUSE) 9 10 MS. LINDA ROTHSTEIN: And turn to Tab 12. 11 Commissioner, you may well be familiar with some of the 12 basic context for this case by now but -- 13 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 14 MS. LINDA ROTHSTEIN: -- to orient both 15 Dr. Cairns and I, let me just briefly review some of the 16 background facts. Nicholas was born on January the 2nd 17 of 1995, and it's at 143263, at page 4 please. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: Dr. Cairns, you'll 21 be able to follow along with this by looking at paragraph 22 1 there and subsequently. And you'll recall, Dr. Cairns, 23 that Nicholas died on November the 30th of 1995 in 24 Sudbury, at the age of eleven (11) months. 25 DR. THOMAS CAIRNS: Correct.
1361 MS. LINDA ROTHSTEIN: There were, in 2 fact, no criminal proceedings initiated in this case. Do 3 you recall that? 4 DR. THOMAS CAIRNS: Yes. 5 MS. LINDA ROTHSTEIN: The local coroner 6 was Dr. Deacon? 7 DR. THOMAS CAIRNS: Correct. 8 MS. LINDA ROTHSTEIN: It was Sergeant 9 Keetch who conducted the original police investigation? 10 DR. THOMAS CAIRNS: Correct. 11 MS. LINDA ROTHSTEIN: The original 12 autopsy which was performed on August the 14th of 1996 13 was performed by Dr. Chen? 14 DR. THOMAS CAIRNS: Correct. 15 MS. LINDA ROTHSTEIN: And the cause of 16 death which he determined was SIDS, providing all other 17 aspects of the investigation are negative; do you recall 18 that conclusion? 19 DR. THOMAS CAIRNS: Yes, I do. 20 MS. LINDA ROTHSTEIN: Okay. Would you 21 turn to paragraph 38, please, of that overview report. 22 That's at page 12 of the document. The preliminary 23 coroner's investigation statement prepared by Dr. Deacon 24 on December 3, 1995 gave the means of death as natural. 25 The cause of death was not designated.
1371 DR. THOMAS CAIRNS: Correct. 2 MS. LINDA ROTHSTEIN: You remember that, 3 do you, sir? 4 DR. THOMAS CAIRNS: I do, yes. 5 MS. LINDA ROTHSTEIN: Okay. Paragraph 6 39, Dr. Deacon signed a final coroner's investigation 7 statement dated September 3, 1996, which designated the 8 cause of death as Sudden Unexplained Death, SUDS. 9 He preferred the SUDS category to SIDS, 10 stating: 11 "I think that the guidelines from the 12 Office of the Chief Coroner would place 13 this is the SUDS category because of 14 the association of the death with the 15 bump on the head." 16 And then you'll recall, Dr. Cairns, that 17 by November of that year -- or rather the following year, 18 excuse me. Yeah, November of that year, 1996 -- the 19 Regional Supervising Coroner for the Northwest Region, 20 Dr. Uzans, referred the case to the Pediatric Review 21 Committee which was headed by you. 22 And can you assist us, Dr. Cairns, whether 23 this was one (1) of the early cases of SIDS/SUDS, I use 24 that advisedly, to be referred to your Committee? 25 DR. THOMAS CAIRNS: That's correct. We
1381 had brought out the protocol in 1995 regarding the 2 investigation of children under two (2). And we had made 3 clear in that protocol what parameters we would accept to 4 call it a SIDS and what parameters we -- we had set out 5 that would call it a SUD, Sudden Unexplained Death. And 6 it explained where one would have to be changed from one 7 to the other. 8 And obviously, in the early days of that 9 protocol, we would have people phoning us up saying, 10 Okay, can you help me, I'm not sure what category this 11 goes into. 12 MS. LINDA ROTHSTEIN: And what happened 13 when it got referred to the Paediatric Death Committee? 14 DR. THOMAS CAIRNS: It was discussed by 15 the whole Committee, and that would be at that time the 16 clinicians who were on the Committee and Dr. Smith. 17 Everybody indicated that it clearly did 18 not fit the SIDS category because this child was alert 19 and around, was awake and standing, when the collapse 20 occurred so by definition, it -- it was not a -- it was 21 not a SIDS. And there was a history of the bump of the 22 head so it was definitely not a SIDS. And the Committee 23 felt this would have to be classified as a Sudden 24 Unexplained Death but that more investigation would need 25 to be carried out.
1391 MS. LINDA ROTHSTEIN: And how often had 2 this happened in the past, where not only there would be 3 a discussion about how to best classify the manner of 4 death but there would actually be a decision made to, if 5 you will, re-investigate arising from the concerns of the 6 Committee? 7 DR. THOMAS CAIRNS: This was, at least, 8 the third or fourth time where not only did -- we could 9 have, on occasion, just reclassified it as a "SUD 10 undetermined" and felt that further investigation would 11 not be of any assistance or we may have said, Fine, this 12 case we will classify it interimly as a SUD but before we 13 do anything of more definitive nature, we'd better start 14 into the re-investigation. 15 MS. LINDA ROTHSTEIN: So if you turn to 16 paragraph 45, that's page 14: 17 "After the request for Dr. Uzans for a 18 review of Nicholas' case by the PRC, 19 the case was assigned to Dr. Charles 20 Smith for an initial review." 21 And, again, stopping there, Dr. Cairns. 22 Was he the only one (1) on the Committee that had the 23 expertise to do that re-examination? 24 DR. THOMAS CAIRNS: Yeah, he was the only 25 pathologist on the Committee, and obviously, what was
1401 going to start out was to the review the pathology. So, 2 yes, he would have been the only appropriately qualified 3 member of the Committee. 4 COMMISSIONER STEPHEN GOUDGE: Do you 5 recall why the Committee decided not just to re-classify 6 but also to re-investigate? 7 DR. THOMAS CAIRNS: Because of the -- the 8 history of there's a bump on the head and the kid is 9 walking, it seemed very strange. And it was felt that we 10 wouldn't need to look into it further for those reasons. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Not just strange, 14 Dr. Cairns, but suspicious? 15 DR. THOMAS CAIRNS: I think it's fair to 16 say that this would have triggered a suspicion, yes. 17 MS. LINDA ROTHSTEIN: Okay. And we'll 18 see from paragraph 46 that Dr. Smith had his colleague, 19 Dr. Paul Babyn, Acting Chief, Department of Diagnostic 20 Imaging at HSC, review the x-rays. 21 In his Affidavit, sworn on June 29th, 22 1998, in the CAS proceedings, Dr. Smith made the 23 following statement regarding his interactions -- I don't 24 think we need to get ahead of ourselves, but the point 25 being that Dr. Babyn also got involved at that time?
1411 DR. THOMAS CAIRNS: Dr. Babyn was asked 2 to review the x-rays that would have been taken at the 3 first autopsy which had been performed in Sudbury. 4 MS. LINDA ROTHSTEIN: Okay. And that 5 takes us into 1997, Commissioner, if we're using years to 6 try and mark our understanding of events. We know that 7 Dr. Smith produced a consultation report in Nicholas' 8 case, dated January 27th, 1997. And so I want to review 9 your involvement in Nicholas' case during that year. 10 Would you turn to page -- paragraph 50, which is at page 11 16. 12 And it sets out that Dr. Smith outlined 13 his microscopic review based on fifteen (15) stained 14 slides, so Dr. Smith was going back and looking at the 15 histology, was he not, Dr. Cairns? 16 DR. THOMAS CAIRNS: Correct. 17 MS. LINDA ROTHSTEIN: And then we have 18 his observations recorded there. I'm not going to read 19 them out. Paragraph 51, he also reviewed the 20 radiological findings? 21 DR. THOMAS CAIRNS: Correct. 22 MS. LINDA ROTHSTEIN: Stopping there for 23 a moment. When Dr. Smith reviewed the microscopic or the 24 histological material, were you in a position to evaluate 25 the accuracy of his conclusions in that respect?
1421 DR. THOMAS CAIRNS: No, I wasn't. 2 MS. LINDA ROTHSTEIN: And when Dr. Smith 3 reviewed the radiological findings of Dr. Babyn and Dr. 4 Armstrong, were you in a position to evaluate the 5 accuracy of Dr. Smith's conclusions in that respect? 6 DR. THOMAS CAIRNS: No, I wasn't. 7 COMMISSIONER STEPHEN GOUDGE: You felt 8 you just did not have the professional skills to ...? 9 DR. THOMAS CAIRNS: That's correct, and 10 in fact, I -- I felt that the professional skills for the 11 review of the x-rays belonged to -- to Dr. Babyn. 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: So, for example, 15 when Dr. Smith opined that a diagnosis of cerebral edema 16 was evident in the microscopic appearance of the vein -- 17 brain, is it fair to say, sir, that you weren't in a 18 position to quarrel with that or to independently verify 19 that? 20 DR. THOMAS CAIRNS: That's correct. 21 MS. LINDA ROTHSTEIN: Or, indeed, the 22 presence of -- let me make sure I pronounce this with 23 some sense -- the presence of a subarachnoid space 24 representing subarachnoid hemorrhage; you weren't in a 25 position to independently verify that, were you?
1431 DR. THOMAS CAIRNS: That's correct. 2 MS. LINDA ROTHSTEIN: And, indeed, when 3 Dr. Smith opined that there was a splitting of the su -- 4 sutures or, indeed, the extent of the splitting of those 5 sutures, you weren't in a position to independently 6 verify that either, were you? 7 DR. THOMAS CAIRNS: I was not. 8 MS. LINDA ROTHSTEIN: Or his conclusion 9 that a left-side mandibular fracture was present? 10 DR. THOMAS CAIRNS: I -- I was not. I 11 don't know if he concluded a mandibular fracture was 12 present, but if that was -- 13 MS. LINDA ROTHSTEIN: He did initially 14 and then he -- in a subsequent report that varied. Do 15 you have a good memory, but you had to take his word for 16 it, did you not? 17 DR. THOMAS CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: Were you in a 19 position to know whether thoracic petechiae -- or 20 petechia were of any significance pathologically? 21 DR. THOMAS CAIRNS: I -- I'm aware that 22 thoracic petechi -- petechia have of -- are of no 23 relevance or a nonspecific finding, they're not of any 24 relevance, period. 25 MS. LINDA ROTHSTEIN: Did you know that,
1441 at the time? 2 DR. THOMAS CAIRNS: Yes, I did. 3 MS. LINDA ROTHSTEIN: Did you wonder 4 then, if you look at the bottom of page 17, paragraph 52, 5 why Dr. Smith saw fit to make reference to that in his 6 report? You see that at the bottom? 7 "Petechial hemorrhages of thoracic 8 viscera" and then goes on to describe the thymus and so 9 on? If it was of no relevance -- 10 DR. THOMAS CAIRNS: I'm sorry, where -- 11 which...? 12 MS. LINDA ROTHSTEIN: At the very bottom 13 of page 17. 14 DR. THOMAS CAIRNS: He says, "regarding 15 the thymus," is that where we're going? 16 "Dr. Smith noticed several small 17 petechial hemorrhages." 18 MS. LINDA ROTHSTEIN: "The presence of 19 thoracic petechia suggests the terminal asphyxia, whether 20 this proceeded or was caused by the cerebral edema cannot 21 be determined," you see that? 22 DR. THOMAS CAIRNS: Where, sorry - I'm 23 not seeing that. 24 MS. LINDA ROTHSTEIN: In the middle of 25 your page if you look at your screen, do you see the
1451 third paragraph: 2 "The presence of thoracic petechia 3 suggests a terminal asphyxia, whether 4 this proceeded or was caused by the 5 cerebral edema cannot be determined." 6 Isn't Dr. Smith suggesting there that 7 thoracic petechia are indeed of relevance in determining 8 the cause of death? 9 DR. THOMAS CAIRNS: Depending how you 10 classify asphyxia. I would classify asphyxia as a 11 generalized term, so it wouldn't help me one (1) way or 12 the other they way that's written. 13 MS. LINDA ROTHSTEIN: Doesn't that 14 sentence suggest that the writer, Dr. Smith, saw some 15 relevance in the presence of thoracic petechia? 16 DR. THOMAS CAIRNS: I -- I don't read it 17 that way. 18 MS. LINDA ROTHSTEIN: All right. 19 COMMISSIONER STEPHEN GOUDGE: How do you 20 read it? 21 DR. THOMAS CAIRNS: That there are a 22 thoracic petechia there, suggesting a terminal asphyxia 23 and most people die of a terminal asphyxia. And in a lot 24 of those cases there -- there are petechia, so I would 25 call it a "neutral term".
1461 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: When Dr. Smith also 4 says -- 5 DR. THOMAS CAIRNS: It is not -- 6 Commissioner, it has not been described to me there, and 7 I -- you've heard lots of evidence -- what is meant by 8 "asphyxia". 9 MS. LINDA ROTHSTEIN: But, Dr. Cairns, 10 look at the first sentence, then, for a moment, if we're 11 on it: 12 "The CNS changes could have occurred by 13 trauma or on a hypoxic ischemic basis". 14 Is Dr. Smith not suggesting, by that 15 sentence, that the brain swelling may be caused by an 16 asphyxial event? 17 DR. THOMAS CAIRNS: No, he's -- he's 18 saying it could be trauma or by lack of oxygen going to 19 the brain. 20 MS. LINDA ROTHSTEIN: An asphyxial event. 21 22 DR. THOMAS CAIRNS: In the broad sense, 23 yes. 24 MS. LINDA ROTHSTEIN: And isn't he, 25 indeed, suggesting that an asphyxial event may,
1471 therefore, be the appropriate cause of death? 2 DR. THOMAS CAIRNS: I wouldn't say that 3 that is going to that extent. If it turns out that 4 subsequent examination reveals that this child has died 5 of hypoxic- ischemic encephalopathy, then we know that is 6 as a result of lack of oxygen to the brain, which may 7 result from various types of asphyxia. 8 And I think they've gone through those. 9 It -- it may be that the airway's blocked off. It may be 10 that the baby has choked on something. It may be there's 11 been some stricture round -- round the baby's neck, et 12 cetera. 13 But those are all still open. It's not 14 pointing to any of those at this time. 15 MS. LINDA ROTHSTEIN: Did you ask him 16 those questions at the time? 17 DR. THOMAS CAIRNS: No, I did not. 18 MS. LINDA ROTHSTEIN: You didn't, in 19 effect, second guess any of the sentence -- 20 DR. THOMAS CAIRNS: I did not. 21 MS. LINDA ROTHSTEIN: -- sentences that 22 he'd written here. 23 DR. THOMAS CAIRNS: That's correct. 24 MS. LINDA ROTHSTEIN: You took his word 25 for it?
1481 DR. THOMAS CAIRNS: I took it as it is. 2 Yes. 3 MS. LINDA ROTHSTEIN: And you assumed 4 that it didn't, in fact, disclose any level of ambiguity. 5 Is that fair, sir? 6 DR. THOMAS CAIRNS: That's correct. 7 MS. LINDA ROTHSTEIN: Dr. Smith, we know, 8 then went to Sudbury on January the 28th of 1997 -- if 9 you look at paragraph 54. You see that? 10 DR. THOMAS CAIRNS: I do. 11 MS. LINDA ROTHSTEIN: On January the 12 28th, 1997 -- 13 DR. THOMAS CAIRNS: Yes, I do. 14 MS. LINDA ROTHSTEIN: -- four (4) days 15 after Dr. Smith signed his consultation report -- 16 DR. THOMAS CAIRNS: Yes. 17 MS. LINDA ROTHSTEIN: -- a meeting was 18 held at the Sudbury General Hospital. 19 DR. THOMAS CAIRNS: Correct. 20 MS. LINDA ROTHSTEIN: And was that 21 characteristic in the sense that Dr. Smith went without 22 you; he went on his own and met with the local coroner 23 and so on? 24 DR. THOMAS CAIRNS: Yes, he was going to 25 meet with the local coroners and -- and the police
1491 officers to discuss his consultation report. 2 MS. LINDA ROTHSTEIN: All right. 3 DR. THOMAS CAIRNS: He also was meeting 4 with the pathologist in question who'd done the first 5 autopsy, Dr. Chan. 6 MS. LINDA ROTHSTEIN: So you weren't 7 involved in that particular consultation with the local 8 officials? 9 DR. THOMAS CAIRNS: On that -- on that 10 particular day, that's correct. 11 MS. LINDA ROTHSTEIN: We do know, 12 however, that on May the 7th of 1997 -- you'll find this 13 picked up at paragraph 58 -- that a second meeting was 14 held at the Sudbury Regional Police Building with 15 officers from the Sudbury Regional Police, you, Dr. Smith 16 and Dr. Uzans. 17 And it was at that time, it says: 18 "They discussed the opinion of Dr. 19 Cairns and Smith that it would be 20 valuable to reexamine Nicholas's body". 21 Do you remember that? 22 DR. THOMAS CAIRNS: I do. 23 MS. LINDA ROTHSTEIN: Can you tell us 24 about that meeting, sir? 25 DR. THOMAS CAIRNS: That meeting was to
1501 discuss Dr. Smith's consultation report and the issues 2 that were arising from it. And this was not being 3 classified as a SIDS; it's been classified as a SUD, and 4 the issue of was this related to head trauma was 5 discussed. 6 And it was felt that in order to get a 7 better perspective on that, it would be necessary to 8 exhume the body. 9 MS. LINDA ROTHSTEIN: And you supported 10 that decision? 11 DR. THOMAS CAIRNS: Yes, I did. 12 MS. LINDA ROTHSTEIN: Was it Dr. Smith's 13 in the first instance? 14 DR. THOMAS CAIRNS: As a result of Dr. 15 Smith's opinion, I felt it was -- it would be necessary 16 to exhume the body. 17 MS. LINDA ROTHSTEIN: All right. And 18 then we see in paragraph 59 that on the 20th of May of 19 1997 you wrote to Sergeant Keetch and stated that you and 20 Dr. Smith believed that Nicholas died of a head injury, 21 and that the circumstances of the death were highly 22 suspicious. 23 And you stated that disinterment of the 24 body was necessary to clarify the issue, do you remember 25 that?
1511 DR. THOMAS CAIRNS: Yes, I do. 2 MS. LINDA ROTHSTEIN: And indeed we know 3 that on June 19th, 1997 Attorney General Harnick issued 4 an order for the disinterment of Nicholas' body. You'll 5 find that reference, Dr. Cairns, at paragraph 65. 6 DR. THOMAS CAIRNS: That's correct. And 7 once again, Commissioner, the Attorney General had 8 ordered the exhumation for the same reasons as I 9 explained to you previously. 10 MS. LINDA ROTHSTEIN: And I take it that 11 when the Attorney General makes an order like that he or 12 she is virtually entirely reliant on the information and 13 opinion that is provided through your office and from 14 your consulting pathologist. 15 DR. THOMAS CAIRNS: It may be entirely on 16 that information or it may be related to both that 17 information and information obtained by the police. 18 MS. LINDA ROTHSTEIN: And in this case 19 what was it? 20 DR. THOMAS CAIRNS: I would have to 21 indicate on this occasion it would be because of the -- 22 of Dr. Smith's opinion. 23 MS. LINDA ROTHSTEIN: Okay. We know that 24 indeed Nicholas' body was disinterred on June the 25th of 25 1997. We also know that Dr. Smith was present at the
1521 disinterment together with his eleven (11) year old son. 2 Were you aware of that before it occurred, 3 Dr. Cairns? 4 DR. THOMAS CAIRNS: No, I was not. 5 MS. LINDA ROTHSTEIN: When did you first 6 learn of that? 7 DR. THOMAS CAIRNS: You may help me with 8 my recollection, but I think we got a letter from 9 Nicholas' grandfather putting into writing his concerns 10 about Dr. Smith's being -- son being present. 11 MS. LINDA ROTHSTEIN: And when you indeed 12 fist learned of that, what was your view? 13 DR. THOMAS CAIRNS: That it was -- it was 14 inappropriate for his son to be there and Dr. Smith was 15 spoken with. He indicated that when he was driving to 16 Sudbury for the exhumation he was driving the previous 17 evening and had seen he had a -- a long day and perhaps 18 being late the previous night, so his wife recommended 19 that the son go with him to accompany him on the drive, 20 which was -- there was nothing wrong with that at all; 21 and that the next day he took his son to the cemetery for 22 the exhumation. 23 And we indicated that that was not 24 appropriate, that he could have either have left him at 25 the hotel or he certainly could have had the police
1531 officers at the Sudbury police station look after his son 2 and it was not appropriate for him to be present. 3 COMMISSIONER STEPHEN GOUDGE: Did you 4 speak to him? 5 DR. THOMAS CAIRNS: Yes, I did, 6 Commissioner. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: And how sharp was 10 your criticism when you spoke to him? 11 DR. THOMAS CAIRNS: That it was 12 inappropriate and that a family had -- already going 13 through a lot of stress about the exhumation, but this 14 has added to that, that they considered it, the family, a 15 cheap shot, that not only are you exhuming our child, but 16 that the eleven (11) year old son is there gawking on it. 17 MS. LINDA ROTHSTEIN: Commissioner, I'm 18 about to move on. I'm very much on schedule. 19 COMMISSIONER STEPHEN GOUDGE: Okay. 20 MS. LINDA ROTHSTEIN: I don't think it 21 will actually be necessary to go much longer than our 22 usual today, which I am sure, Dr. Cairns, you're relieved 23 to know, and indeed maybe some of my colleagues are, as 24 well. So if it's all the same to you, I propose that we 25 take a slightly earlier lunch.
1541 COMMISSIONER STEPHEN GOUDGE: Why don't 2 we break now. What are you suggesting? We come back at 3 our usual time? 4 MS. LINDA ROTHSTEIN: Sure. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 MS. LINDA ROTHSTEIN: Thank you. 7 COMMISSIONER STEPHEN GOUDGE: Two o'clock 8 then. 9 10 --- Upon recessing at 12:41 p.m. 11 --- Upon resuming at 2:00 p.m. 12 13 THE REGISTRAR: All rise. Please be 14 seated. 15 COMMISSIONER STEPHEN GOUDGE: Afternoon. 16 Ms. Rothstein...? 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: Thank you, 20 Commissioner. 21 Dr. Cairns...? 22 DR. THOMAS CAIRNS: Good afternoon. 23 MS. LINDA ROTHSTEIN: Just before our 24 lunch hour, Dr. Cairns, you and I were reviewing the 25 events that followed your learning that Dr. Smith had
1551 taken his eleven (11) year old son to the disinterment of 2 Nicholas's body, and you had told the Commissioner that 3 you told Dr. Smith that you viewed that as inappropriate. 4 What was his reaction to that comment from 5 you? 6 DR. THOMAS CAIRNS: There is some 7 correspondence later that he wasn't aware that there was 8 a policy, per se, that you couldn't take your son to an 9 exhumation. 10 We really didn't think it was necessary to 11 have a policy about the inadvisability of taking your 12 eleven (11) year old son to an exhumation. 13 MS. LINDA ROTHSTEIN: But I had the -- 14 the sense, Dr. Cairns -- forgive me if I misunderstood -- 15 that you actually spoke to Dr. Smith about it. 16 DR. THOMAS CAIRNS: That's correct. 17 MS. LINDA ROTHSTEIN: Right. So I'm 18 talking about the conversation itself. 19 DR. THOMAS CAIRNS: The conversation 20 itself; he indicated to me he'd taken his son -- he'd 21 driven up with his son 'cause his son could accompany 22 him. And he had nowhere to leave his son the next 23 morning. So that's why he took him. 24 I said, Come on, you -- you had the hotel, 25 you were there with the police and the Regional Coroner.
1561 There were plenty of places. I'm sure the police 2 officers would -- would have looked after your son, 3 either at the police station or in a police car that was 4 outside the cemetery. 5 So, I did not accept that he'd had no 6 option but to take him to the actual site of the 7 exhumation. 8 MS. LINDA ROTHSTEIN: Did Dr. Smith 9 accept that you were right in concluding that his conduct 10 was inappropriate? 11 DR. THOMAS CAIRNS: I thought at the time 12 he did, and then there was a -- some follow-up later 13 where he said, Well, at that time, there was no policy. 14 But, at the time we spoke, I thought by 15 the time we were finished he -- he realized that it was 16 not the appropriate thing to do. 17 MS. LINDA ROTHSTEIN: And did Dr. Smith's 18 conduct in deciding to take his son to the internment 19 and, indeed, his reaction during your discussion with him 20 about that issue, have any influence on your con -- on 21 your confidence in his judgment? 22 DR. THOMAS CAIRNS: No, well, that was -- 23 I felt it was a poor judgment to take his -- his son 24 there. It -- it did not make me reflect on his judgment 25 in a professional -- sorry -- in his work sense of the
1571 word. 2 MS. LINDA ROTHSTEIN: So, it didn't make 3 you doubt the quality of his pathological conclusions. 4 DR. THOMAS CAIRNS: That's correct. 5 MS. LINDA ROTHSTEIN: All right. So we 6 do know, if we look at paragraph 72, then, of the same 7 overview report. Have you still got it -- that in front 8 of you, Dr. Cairns? 9 DR. THOMAS CAIRNS: Yes, I do. 10 MS. LINDA ROTHSTEIN: Great. We do know 11 that Dr. Smith, in fact, conducted the autopsy and that 12 he prepared a post-mortem report, and we have the summary 13 of his findings starting in paragraph 75 of that 14 document. That's at page 26, please, of 143263. 15 And so, looking at those findings, did you 16 have the oc -- expertise, Dr. Cairns, to independently 17 verify that, in fact, there was no evidence of fracture 18 of bone? 19 DR. THOMAS CAIRNS: No, I did not. 20 MS. LINDA ROTHSTEIN: Did you have the 21 expertise, Dr. Cairns, to independently verify that there 22 was haemorrhagic discolouration of the right parietal 23 bone? 24 DR. THOMAS CAIRNS: No, I did not. 25 MS. LINDA ROTHSTEIN: Or indeed to
1581 conclude whether or not that might be purely an artifact? 2 DR. THOMAS CAIRNS: I did not have the 3 expertise to make that conclusion. 4 MS. LINDA ROTHSTEIN: And the same with 5 respect to the haemorrhagic discolouration along the 6 skull sutures, you weren't able to determine yourself 7 whether that was significant or whether in fact it was 8 post-mortem artifact. 9 DR. THOMAS CAIRNS: That is correct. 10 MS. LINDA ROTHSTEIN: And with respect to 11 the second full paragraph under paragraph 56 where Dr. 12 Smith states that the second post-mortem examination 13 revealed no fracture of the bone, although the presence 14 of soft tissue injury could not be excluded, did you take 15 the time to look at Dr. Chen's original autopsy report 16 and appreciate that in fact Dr. Smith -- or rather Dr. 17 Chen specifically records that he could not find any soft 18 tissue injury? 19 DR. THOMAS CAIRNS: I was aware in the 20 first autopsy that Dr. Chen had not found any soft tissue 21 injury. 22 MS. LINDA ROTHSTEIN: So, did you see 23 that particular comment by Dr. Smith that the presence of 24 soft tissue injury could not be excluded as potentially 25 misleading?
1591 DR. THOMAS CAIRNS: Not really, insofar 2 as he was doing a second autopsy and therefore the 3 condition of the body would not be in as good a position 4 as the -- as the first time. 5 MS. LINDA ROTHSTEIN: And therefore, 6 didn't he have to accept the conclusions of Dr. Chen on 7 that precise issue? 8 DR. THOMAS CAIRNS: Certainly that is a 9 discussion. You weren't there; that's -- that's -- the 10 first pathologist had a -- a better opportunity, but I 11 don't think he did accept Dr. Chen's opinion on that. 12 MS. LINDA ROTHSTEIN: With respect to the 13 haemorrhagic discolouration that was seen along the skull 14 su -- sutures, did you have the expertise to 15 independently verify that finding? 16 DR. THOMAS CAIRNS: I did not. 17 MS. LINDA ROTHSTEIN: And, Dr. Cairns, 18 did it concern you at all that Dr. Smith's conclusion in 19 the absence of credible explanation in my opinion, the 20 post-mortem findings are regarded as resulting from non- 21 accidental injury, accepting that he found blunt force 22 trauma as the cause of death, that the further inference 23 that it was from non-accidental injury, did you -- were 24 you troubled by that conclusion, sir? 25 DR. THOMAS CAIRNS: No, I accepted his
1601 conclusion. 2 MS. LINDA ROTHSTEIN: All right. At that 3 stage you had complete confidence in Dr. Smith? 4 DR. THOMAS CAIRNS: I did. 5 MS. LINDA ROTHSTEIN: And you saw no 6 reason to second guess him. 7 DR. THOMAS CAIRNS: Correct. 8 COMMISSIONER STEPHEN GOUDGE: Did you 9 ever ask yourself how he went from blunt force injury to 10 non-accidental injury, how he made that reasoning step? 11 DR. THOMAS CAIRNS: Commissioner, I think 12 he was making that reasoning in that there was no 13 satisfactory explanation given as to how it may be 14 accidental. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: In other words, he 18 was effectively concluding that the mother's explanation 19 was simply not credible. 20 DR. THOMAS CAIRNS: He was concluding 21 that the explanation, to the best of my knowledge, was 22 that the child had bumped his head and that that was not 23 credible. 24 MS. LINDA ROTHSTEIN: Now, we know that 25 on August the 7th, according to a memo to file that you
1611 prepared, sir, that you met with Dr. Uzans, Dr. Deacon, 2 an Assistant Crown Attorney, and the Sudbury Regional 3 Police Officers, and at that stage you briefed them on 4 Dr. Smith's findings from his post-mortem. 5 Am I correct about that? 6 DR. THOMAS CAIRNS: You're correct, yes. 7 MS. LINDA ROTHSTEIN: And if we go down 8 we see from -- this is a quote from your file, sir: 9 "I believe that Dr. Smith told the 10 Sudbury Police that Nicholas did not 11 die of SIDS or a natural process, but 12 rather died from cerebral edema 13 consistent with a blunt force injury to 14 the head. He further stated that Ms. 15 Gagnon's story that the child died 16 after hitting his head on the underside 17 of a sewing machine was not consistent 18 with the medical evidence." 19 That's what you and I, and indeed you, 20 with the Commissioner, have just reviewed. 21 DR. THOMAS CAIRNS: That's correct. 22 MS. LINDA ROTHSTEIN: All right. Now, I 23 understand that this post-mortem report is dated June 24 26th, 1997, that's apparent from looking at the footnotes 25 that are on this document. I don't want to mislead you
1621 to -- at all, Dr. Cairns, but if you look, for example, 2 at footnote 82 you'll see that it's -- that's the date of 3 it. 4 But as I reconstruct the events, you did 5 not, in fact, provide it to police on oc -- until 6 October the 30th of 1997; if you look at paragraph 79, 7 you were the one (1) to provide it to them. 8 Dr. Cairns, am I correct in inferring it 9 wasn't sitting on your desk, sir, for that period of 10 time? 11 DR. THOMAS CAIRNS: I can't re -- sorry. 12 He had dated his...? 13 MS. LINDA ROTHSTEIN: His -- his post- 14 mortem report is dated June 26th. You actually forwarded 15 it, we know from the paper record, on October the 30th, 16 '97. I'm suggesting to you, sir, that it was unlikely 17 that you let it sit on your desk for that period of time. 18 DR. THOMAS CAIRNS: I wish I could be 19 more accurate, I -- I cannot recall. But I do see that 20 on August the 7th of 1997, when we met with the Sudbury 21 Police and the Assistant Crown attorney, that Dr. Smith 22 was there and gave a verbal report on his post-mortem. 23 MS. LINDA ROTHSTEIN: Does that suggest, 24 Dr. Cairns, that by August the 7th he had not, in fact, 25 authored a post-mortem report in written form or you
1631 would have taken that up with you? 2 DR. THOMAS CAIRNS: That is the way I'm 3 interpreting that -- 4 MS. LINDA ROTHSTEIN: Right. 5 DR. THOMAS CAIRNS: -- correct. 6 MS. LINDA ROTHSTEIN: And so the date of 7 the actual post-mortem report probably does not reflect 8 when it was actually prepared but rather when the post- 9 mortem took place? 10 DR. THOMAS CAIRNS: That is perhaps the 11 conclusion that I'm reaching also. 12 MS. LINDA ROTHSTEIN: All right. I'm 13 just wondering if you recall if this was one (1) of those 14 situations where you had to encourage Dr. Smith to get 15 you the report sooner than later? 16 DR. THOMAS CAIRNS: No. I do recall 17 there -- there was no issue with regard to the delay in - 18 - in the report. There had been verbal communication 19 with the police on the content and opinion that was going 20 to be offered and when the report itself came in in a 21 paper form it mirrored exactly what had been given 22 verbally. 23 MS. LINDA ROTHSTEIN: All right. We 24 know, Dr. Cairns, that by December of that year, 1997, 25 the police had decided not to charge Ms. Gagnon.
1641 Were you surprised by that? 2 DR. THOMAS CAIRNS: No, I -- I was not 3 surprised. The Crown attorney had been in discussion and 4 he did not feel that there was sufficient strength to the 5 evidence, that on the bal -- that he had a high index to 6 -- to only go ahead if he felt there was a reasonable 7 prospect of conviction. 8 MS. LINDA ROTHSTEIN: Now, Commissioner, 9 I'm going to go ahead if -- if you don't mind to 1998. 10 There are two (2) other cases in which Dr. Cairns became 11 involved in 1997, but I think for the sake of narrative 12 flow, it would help both Dr. Cairns and I if we just 13 continued along with the Nicholas case. 14 COMMISSIONER STEPHEN GOUDGE: That is 15 fine. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: And that takes us 19 into 1998 and that's the year, as I understand it, Dr. 20 Cairns, that the Children's Aid Society became involved 21 because Ms. Gagnon had given birth to another child. 22 DR. THOMAS CAIRNS: That's correct. 23 MS. LINDA ROTHSTEIN: And if we look at, 24 again, the same overview report in page 86, we learn that 25 you attended a case conference with the Children's Aid
1651 Society on April the 7th of 1998 and indeed on May the 2 8th of 1998. Actually -- 3 DR. THOMAS CAIRNS: Eighth? 4 MS. LINDA ROTHSTEIN: -- if we read this 5 -- let me just go back and do that more precisely. 6 The people present at the case conference 7 on April 7th included Sergeant Keetch, you, Louise 8 Huneault, who was CAS junior counsel, Gisele Piche, who 9 was the CAS social worker, and although Gisele Haines, 10 another CAS social worker, was not present on April the 11 7th she later reviewed Ms. Piche's notes. 12 Were you also present for the second one 13 (1) on May the 8th? It would appear from paragraph 87 14 that you were. Are you satisfied with that, that there 15 were two (2) meetings you were in attendance at, Dr. 16 Cairns? 17 DR. THOMAS CAIRNS: Let me just get 87, 18 please. 19 20 (BRIEF PAUSE) 21 22 DR. THOMAS CAIRNS: Yes, I would accept 23 that. 24 MS. LINDA ROTHSTEIN: Okay. It would 25 also appear, Dr. Cairns, that for the first conference
1661 with the CAS on April the 7th, 1998, Dr. Smith was not 2 present and you therefore carried the ball, if you will, 3 in terms of reporting his findings to those attended? 4 DR. THOMAS CAIRNS: That's reasonable. 5 Yes. 6 MS. LINDA ROTHSTEIN: And indeed, is it 7 fair to conclude that everything you told those present 8 was based on what Dr. Smith had told you? 9 DR. THOMAS CAIRNS: That's correct. 10 MS. LINDA ROTHSTEIN: Do you -- how much 11 that you can assist us with other than what's written 12 down here in the overview report about what occurred in 13 that meeting? 14 Can you shed some further light on what 15 the concerns were of the CAS? What you were trying to 16 address? 17 DR. THOMAS CAIRNS: The CAS. There had 18 been a new child in the family and they needed to assess 19 whether they should apprehend that child or not. And to 20 do that they wanted to know the cause of death of the 21 first child and what was the opinion as to whether this 22 was natural, accidental, or considered to be a non- 23 accidental injury. 24 MS. LINDA ROTHSTEIN: And do you now why 25 there was a decision made to have a second meeting? Was
1671 that so Dr. Smith could attend? 2 DR. THOMAS CAIRNS: I can't -- I don't 3 have specific recollection, but that would be not an 4 unreasonable conclusion. 5 MS. LINDA ROTHSTEIN: All right. Now, if 6 you look at paragraph 87, it states that Ms. Haines, who 7 was another CAS social worker -- Gisele Haines -- do you 8 remember her? 9 DR. THOMAS CAIRNS: Yes. 10 MS. LINDA ROTHSTEIN: She swore in a 11 affidavit that was produced subsequently that you and Dr. 12 Smith were unequivocal at the May 8, 1998 meeting that 13 Dr. Smith's diagnosis of Nicholas' death was correct. 14 She stated: 15 "It was indicated by Dr. Smith, which 16 was not questioned by Dr. Cairns, who 17 was present at the time, that he was 99 18 percent certain that this child had 19 died due to an non-accidental trauma 20 that had been inflicted on the child by 21 the sole caregiver, being the mother, 22 who had the opportunity to do so during 23 the time frame for this type of 24 injury." 25 Is that the language that Dr. Smith used?
1681 DR. THOMAS CAIRNS: I have no reason to 2 disbelieve what is written here. 3 MS. LINDA ROTHSTEIN: Your recollection 4 is that he said something to the effect of 99 percent 5 certain? 6 DR. THOMAS CAIRNS: I have no reason to - 7 - to believe that -- that that's what she has here; that 8 that's what he said. 9 MS. LINDA ROTHSTEIN: And is it fair to 10 conclude from that, Dr. Cairns, that you do remember that 11 Dr. Smith had a very high degree of certainty about his 12 conclusions? 13 DR. THOMAS CAIRNS: Yes, I do. 14 MS. LINDA ROTHSTEIN: And did you, 15 indeed, share that high degree of certainty about his 16 conclusions, at that time? 17 DR. THOMAS CAIRNS: I didn't -- I didn't 18 share that high degree because part of the reason that 19 the Crown had taken it -- had not taken it -- is the 20 Crown wasn't satisfied it was to that degree, but I did - 21 - I did agree that -- at a lesser level, that it was non- 22 accidental injury. 23 MS. LINDA ROTHSTEIN: Now, if we go down 24 to paragraph 91, Dr. Cairns, we know that in June, Dr. 25 Halliday provides an affidavit on behalf of Ms. Gagnon in
1691 the CAS proceeding, and I know, sir, that you 2 subsequently became aware of that. 3 Had you had occasion to know Dr. Halliday, 4 at that stage? 5 DR. THOMAS CAIRNS: I knew of him. I was 6 not -- he had been working in Manitoba, and in fact, it 7 may even have been when he gave his first review of this 8 case, he was still working in Manitoba. I know 9 subsequently he became a neuropath -- pathologist at 10 Toronto Western Hospital. 11 So I may have known his name, but I did 12 not -- never met him previously. 13 MS. LINDA ROTHSTEIN: What was his 14 reputation, as you understood it? 15 DR. THOMAS CAIRNS: My -- his reputation 16 was that he was an excellent neuropathologist, who had 17 done work for the medical examiner's office in Manitoba. 18 My understanding, at that time, was that he was an adult 19 neuropathologist. 20 MS. LINDA ROTHSTEIN: And so what, if 21 any, impact on that fact have on your confidence in any 22 conclusions that he might reach? 23 DR. THOMAS CAIRNS: In terms of -- he had 24 initially -- he had done a review, but had not seen any 25 of the physical exhibits, so if -- if we take it over a
1701 period of time, you give, first of all, an opinion that 2 cause of death is undetermined, follow that up later by 3 an opinion that the cause of the death was an accidental 4 head injury. And once -- 5 MS. LINDA ROTHSTEIN: Be -- before we get 6 to the second one -- 7 DR. THOMAS CAIRNS: Sorry, yes. 8 MS. LINDA ROTHSTEIN: -- okay, 'cause it 9 gets confusing, it'll be hard to follow. At the time 10 that you received the first affidavit from Dr. Halliday - 11 - and I take your point that his opinion changed, and you 12 and I both know that that -- that is true, but when you 13 received that first opinion, as I understand it, you were 14 contacted by the CAS, as was Dr. Smith so that they could 15 discuss it with you. 16 If you turn to paragraph 96, that's set 17 out. And in her affidavit again, Ms. Huneault indicated 18 that the CAS asked Drs. Cairns and Smith whether Dr. 19 Halliday's theory was medically reasonable. She noted: 20 "If it was, then our intervention would 21 have stopped." 22 And do you remember that inquiry of you 23 and Dr. Smith? 24 DR. THOMAS CAIRNS: Yes, I do. 25 MS. LINDA ROTHSTEIN: Were you together
1711 on the phone? Was it a teleconference? Can you recall 2 the precise circumstances in which you had that 3 conversation with CAS? 4 DR. THOMAS CAIRNS: I can't recall. It 5 was probably a telephone conversation, since when she was 6 with the Sudbury CAS, it would be unlikely to be having a 7 face to face meeting unless it was really necessary. 8 MS. LINDA ROTHSTEIN: All right. You'll 9 see Ms. Huneault's affidavit indicates that Dr. Cairns 10 and Smith were extremely clear; that the theories put 11 forward by Dr. Halliday were not sustainable, and the 12 position of the coroner's office had not changed 13 regarding the cause of death. 14 And I understand that what Dr. Halliday 15 subsequently said, had an impact on your conclusions, but 16 if we can put you back to June 16th, when you didn't have 17 that second opinion. 18 Firstly, is it true that you were 19 unpersuaded by Dr. Halliday's opinion at that time? 20 DR. THOMAS CAIRNS: That's correct. 21 MS. LINDA ROTHSTEIN: And why was that? 22 DR. THOMAS CAIRNS: Because I accepted 23 the expertise and credibility of Dr. Smith. 24 MS. LINDA ROTHSTEIN: And Dr. Smith did 25 not accept that what Dr. Halliday had opined was
1721 medically reasonable? 2 DR. THOMAS CAIRNS: That's correct. 3 COMMISSIONER STEPHEN GOUDGE: And I take 4 it that would have been your general sense of Dr. Smith's 5 expertise at that point? Is that what made you -- 6 DR. THOMAS CAIRNS: Yes. 7 COMMISSIONER STEPHEN GOUDGE: -- accept 8 him in the face of Dr. Halliday's opposite view? 9 DR. THOMAS CAIRNS: Commissioner, at this 10 time Dr. Smith was the eminent pediatric pathologist; not 11 only in Ontario but across much of Canada, so you're 12 absolutely right. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: So from your 16 perspective, Dr. Cairns, in June of 1998, you had the 17 preeminent pediatric pathologist, and Dr. Halliday, 18 almost by definition was of less importance? 19 DR. THOMAS CAIRNS: Of less importance 20 probably for two (2) reasons, and that's not to discredit 21 in any way Dr. Halliday. I didn't know Dr. Halliday, 22 number 1, so I didn't know about his reputation. 23 And secondly, at that time it appeared 24 that he was dealing with neuropathology which is 25 extremely important, but he wasn't doing pediatric
1731 neuropathology. 2 MS. LINDA ROTHSTEIN: All right. Now, 3 Dr. Cairns, the following day, June the 17th of 1998, Mr. 4 Parise sent a fax to you attaching the affidavit and 5 curriculum vitae of Dr. Halliday, do you see that, 6 paragraph 97? 7 DR. THOMAS CAIRNS: I do, yes. 8 MS. LINDA ROTHSTEIN: And it appears from 9 that fax that Mr. Parise also attached an excerpt from 10 Justice Dunn's reasons acquitting the accused in the 1991 11 case R. V. S. M. 12 And as this overview report then records, 13 that was the case in which a thirteen (13) year old 14 babysitter was charged with manslaughter for allegedly 15 shaking her sixteen (16) month old charge to death. 16 SM stated that the child fell down the 17 stairs, and Dr. Smith testified in that case and 18 suggested that indeed the infant had been the victim of 19 Shaken Baby Syndrome, correct? 20 DR. THOMAS CAIRNS: That's correct, yes. 21 MS. LINDA ROTHSTEIN: All right. Now, 22 the case we know, predates your appointment to the 23 position of Deputy Coroner at the OCCO? 24 DR. THOMAS CAIRNS: Correct. 25 MS. LINDA ROTHSTEIN: All right. Had you
1741 heard about it in any event in 1991? 2 DR. THOMAS CAIRNS: In 1991, I have no 3 recollection of hearing it at that time. But at some 4 stage, I heard about it. Now whether it was right at 5 this time or preceding it, but the essence of what I had 6 heard, was that the SCAN Team at the Hospital for Sick 7 Kids were supporting Dr. Smith's conclusion. 8 And at some stage, and I can't give you, 9 Dr. Smith indicated personally to me that sometime after 10 the trial, that he had met the Judge involved, Justice 11 Dunn, who indicated to him, had his understanding of the 12 medicine at the time of the trial, being as it was now, 13 he would have come to a different conclusion. 14 MS. LINDA ROTHSTEIN: Okay. Let's just 15 go back and unpack those two (2) statements you've made. 16 The first one (1) about the SCAN Team supporting Dr. 17 Smith's conclusions. From whom did you hear that? 18 DR. THOMAS CAIRNS: I heard it from Dr. 19 Marci Mian. And I think at the time she was head of the 20 -- she was certainly part of the SCAN Team. Whether in 21 fact she was the head of the SCAN Team at that time, I 22 can't accurately recall. 23 MS. LINDA ROTHSTEIN: And can you recall 24 any context in which you and Dr. Mian would have had a 25 conversation of that nature?
1751 DR. THOMAS CAIRNS: The conversation of 2 that nature may have come up in general conversation with 3 regard to the whole issue of shaken baby. And in the 4 late '80's this was an -- an evolving concept and there 5 were different views from different authorities both in 6 Canada, United States and elsewhere, and it was a 7 controversial topic. 8 MS. LINDA ROTHSTEIN: And how well did 9 you know Dr. Mian, while we're on the subject? 10 DR. THOMAS CAIRNS: I knew Dr. Mian once 11 I became the Deputy Chief Coroner and probably more so in 12 '94 and '95 as we started to get more involved with 13 children as a result of the protocol for the 14 investigations of death under two (2). 15 MS. LINDA ROTHSTEIN: Okay. And I -- is 16 Dr. Mian the only one (1) who spoke to you about the SCAN 17 Team support -- 18 DR. THOMAS CAIRNS: I -- I have -- 19 MS. LINDA ROTHSTEIN: -- for Dr. Smith in 20 that case? 21 DR. THOMAS CAIRNS: I have a recollection 22 that Dr. Dirk Huyer did the same but I am -- I'm not as 23 firm in that as -- as with Dr. Mian. 24 MS. LINDA ROTHSTEIN: All right. And 25 your evidence is that in addition to that, Dr. Smith
1761 spoke directly to you about that? 2 DR. THOMAS CAIRNS: He did. 3 MS. LINDA ROTHSTEIN: Can you estimate at 4 all how much before, if at all, this June fax, June 1998 5 fax, from Mr. Parise you had that conversation with Dr. 6 Smith? 7 DR. THOMAS CAIRNS: I -- I have tried to 8 figure that out and I -- I can't do it with any accuracy 9 whether it was at this time or whether it was before. My 10 feeling is it was before. 11 MS. LINDA ROTHSTEIN: All right. Let's 12 look at Tab 23 of Volume II if we can. 13 14 (BRIEF PAUSE) 15 16 MS. LINDA ROTHSTEIN: And it's 051517. 17 And you will see that this is indeed a fax dated June 18 17th, 1998, directed to you from Mr. Parise and you see 19 attached to it an excerpt, it's by no means complete, 20 from the decision of Judge PW Dunn, dated May 24th, 1991. 21 Do you see that? 22 DR. THOMAS CAIRNS: I do. 23 MS. LINDA ROTHSTEIN: All right. When 24 you received that, Dr. Cairns, did you read it? 25 DR. THOMAS CAIRNS: Yes, I read it.
1771 MS. LINDA ROTHSTEIN: And did you go and 2 try and find the entire judgment or was this sufficient 3 for your purposes? 4 DR. THOMAS CAIRNS: No, I didn't go and 5 find the entire judgment? 6 MS. LINDA ROTHSTEIN: Why not? 7 DR. THOMAS CAIRNS: Because at this time 8 I was influenced by the fact that Dr. Smith had indicated 9 that he'd had a conversation with the judge sometime 10 following the trial and the judge said that he -- he just 11 -- he felt differently about the value of the medical 12 evidence. 13 MS. LINDA ROTHSTEIN: Were you familiar 14 with the reputations of the defence witness whom Justice 15 Dunn described as having experience that was broader and 16 more extensive than that the Crown witnesses? 17 DR. THOMAS CAIRNS: I was not familiar 18 with that witness. 19 MS. LINDA ROTHSTEIN: And did you make an 20 effort to learn who they were? Was that important to you 21 to know? 22 DR. THOMAS CAIRNS: I did not make an 23 effort to learn who they were. 24 MS. LINDA ROTHSTEIN: Let me just ask 25 you: Had you heard at that time of Dr. O'Meyer
1781 (phonetic)? 2 DR. THOMAS CAIRNS: I had not. 3 MS. LINDA ROTHSTEIN: Dr. Gilles? 4 DR. THOMAS CAIRNS: I had not. 5 MS. LINDA ROTHSTEIN: Dr. Leetsma? 6 DR. THOMAS CAIRNS: I have -- I had heard 7 of Dr. Leetsma; in fact, I was at a trial where Dr. 8 Leetsma was testifying. What I cannot -- as we sit here 9 today, I cannot recollect whether that trial was before 10 this date or after this date. 11 MS. LINDA ROTHSTEIN: Dr. MacDonald? 12 DR. THOMAS CAIRNS: I hadn't heard of Dr. 13 MacDonald. 14 MS. LINDA ROTHSTEIN: Dr. Thibeault? 15 DR. THOMAS CAIRNS: I hadn't heard of Dr. 16 Thibeault? 17 MS. LINDA ROTHSTEIN: Dr. Ducharme? 18 DR. THOMAS CAIRNS: I had not heard of 19 Dr. Duharme. 20 MS. LINDA ROTHSTEIN: Dr. Ferguson? 21 DR. THOMAS CAIRNS: I had not heard of 22 Dr. Ferguson. 23 MS. LINDA ROTHSTEIN: So you weren't, I 24 suggest, sir, in any position to independently and 25 objectively evaluate the soundness of their evidence?
1791 DR. THOMAS CAIRNS: That's correct. 2 MS. LINDA ROTHSTEIN: Were you then, sir, 3 in a position to independently and objectively assess the 4 soundness of Justice Dunn's criticisms of Dr. Smith? 5 DR. THOMAS CAIRNS: No, I was not. 6 MS. LINDA ROTHSTEIN: Isn't that what Mr. 7 Parise was asking from you? 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: Two (2) days later 10 you swore an affidavit which is set out at page -- or 11 paragraph, excuse me, 101 of the overview report. So 12 it's 143263 at page 36. 13 DR. THOMAS CAIRNS: Sorry, tab again? 14 MS. LINDA ROTHSTEIN: Sorry. So it's the 15 overview report tab of the white binder, that's it, Tab 16 12, please, at paragraph 101. 17 DR. THOMAS CAIRNS: Yes. 18 MS. LINDA ROTHSTEIN: Now, you and I have 19 agreed, sir, that at this stage you had not examined the 20 histology. 21 DR. THOMAS CAIRNS: Correct. 22 MS. LINDA ROTHSTEIN: And you could not 23 independently verify whether or not therefore that this 24 was a case of severe cerebral edema? 25 DR. THOMAS CAIRNS: Correct.
1801 MS. LINDA ROTHSTEIN: And you had not 2 examined the radiology? 3 DR. THOMAS CAIRNS: That's correct. 4 MS. LINDA ROTHSTEIN: The affidavit you 5 prepared, if I understand your evidence so far, Dr. 6 Cairns, was entirely based on Dr. Smith's views. 7 DR. THOMAS CAIRNS: That's correct. 8 MS. LINDA ROTHSTEIN: You say in the 9 third paragraph: 10 "I wholly agree with the specific and 11 crucial findings of Dr. Smith, that the 12 cerebral edema suffered by the infant 13 was severe, rather than mild, as 14 characterised by Dr. Chen". 15 Do you agree, sir, that that was in effect 16 a pathological conclusion? 17 DR. THOMAS CAIRNS: I do. 18 MS. LINDA ROTHSTEIN: That you, sir, with 19 respect, did not have the expertise to provide? 20 DR. THOMAS CAIRNS: I -- I agree 21 entirely. 22 MS. LINDA ROTHSTEIN: You also expressed 23 an opinion on the cause of death? 24 DR. THOMAS CAIRNS: Correct. 25 MS. LINDA ROTHSTEIN: And same problem
1811 with that opinion. 2 DR. THOMAS CAIRNS: That's correct. 3 COMMISSIONER STEPHEN GOUDGE: Why did you 4 give those two (2) opinions? 5 DR. THOMAS CAIRNS: Commissioner, it may 6 be coming out, but the affidavit was prepared by the 7 legal counsel for the CAS and I was asked to sign it. 8 I recognised at a later stage that it was 9 inappropriate to do so because it appeared that I was 10 giving my own independent opinion, while what I was doing 11 was saying, and it was purely said, that the position of 12 the Office of the Chief Coroner at this time is that we 13 accept the opinion of Dr. Smith, but that is not how it 14 came out. 15 At a stage later when I was contacted by 16 the Nicholas' family lawyer and he ex -- asked me am I 17 going to be testifying, I said no, I'm not, and when he 18 brought me to that I said I see where you're coming from 19 and that -- that is not appropriate; I am not qualified, 20 and I corrected it at that stage, but at the time this 21 went out I could understand why the lawyer for the CAS 22 would come to that conclusion. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Because at that
1821 stage, Dr. Cairns, if I understand what you've just been 2 frank with the Commissioner about is you had not squarely 3 told Mr. Parise about the limits of your expertise. 4 DR. THOMAS CAIRNS: That is absolutely 5 correct. 6 MS. LINDA ROTHSTEIN: All right. Leaving 7 aside the expertise issue, do you agree with Dr. Crane 8 when he told the Commissioner last week that in your role 9 as the Deputy Chief Coroner any opinion that you give in 10 a Court proceeding is almost certainly to be given a lot 11 of weight? 12 DR. THOMAS CAIRNS: I -- I would accept 13 that, yes. 14 MS. LINDA ROTHSTEIN: And that it doesn't 15 square well with the objectivity of that office to be 16 unequivocally supporting an opinion such as Dr. Smith 17 gave in this case in this way. 18 Do you agree with that criticism? 19 DR. THOMAS CAIRNS: With regard to that, 20 there are going to be many things where in our office we 21 have to make the decision as to what we accept in a case, 22 and if we are -- if we're accepting that we have an 23 expert who's given us an opinion and if I accept that 24 opinion, then I think it -- it is appropriate. 25 If this was going to an Inquest where it
1831 may be to -- then I would be mute on that subject, but I 2 was -- I was an investigator here; I wasn't in a judicial 3 role, so the position of our office was that the official 4 position of the Office of the Chief Coroner remains that 5 we're accepting the conclusion of Dr. Smith as our 6 official position. 7 MS. LINDA ROTHSTEIN: But looking back on 8 it today, and it's many years later and we've all learned 9 much, what do you think is the appropriate role 10 systemically for the Deputy Chief Coroner in a situation 11 like this, Dr. Cairns? 12 DR. THOMAS CAIRNS: I think it would be 13 to clarify with whoever we're sending this report to that 14 here is the official position of the Office of the Chief 15 Coroner. 16 It is not my personal expertise that is 17 arrived at, but that our office have accepted the 18 expert's opinion. 19 MS. LINDA ROTHSTEIN: We'll come back to 20 that 'cause there's some very difficult systemic issues 21 for the Commissioner to consider, and we want to hear 22 more from you on that, but for the moment, as you pointed 23 out earlier Dr. Cairns, Dr. Halliday, indeed, swore a 24 second affidavit on July the 10th, 1998. 25 If you turn to page -- paragraph 127. You
1841 made reference to that earlier, and that's 143263 at page 2 45. DR. THOMAS CAIRNS: Yes, I see that. 3 MS. LINDA ROTHSTEIN: And you will see 4 that at that stage, Dr. Halliday indicated that he had 5 now reviewed a number of new documents including the 6 letter from Dr. Babyn to Dr. Cairns dated January 13th. 7 The coroner's investigation statement, the letter from 8 Dr. Uzans, and so on. 9 And can I ask you whether when you got 10 that second affidavit you were lead to conclude that an 11 independent opinion was required in this case from 12 another esteemed pathologist? 13 DR. THOMAS CAIRNS: Not at that stage. 14 MS. LINDA ROTHSTEIN: Why not? 15 DR. THOMAS CAIRNS: I still was accepting 16 the opinion of Dr. Smith over Dr. Halliday, at that 17 particular time. 18 MS. LINDA ROTHSTEIN: So help us 19 understand because you do, indeed, have medical knowledge 20 that the Commissioner and I lack. At what stage does the 21 balance shift in your role from we -- we should stay with 22 our fee-for-service pathologist, who's done this work and 23 we trust and think very highly of to there's now another 24 expert opinion from someone else who's esteemed, and we 25 have to get a third one.
1851 How does that decision-making get made? 2 DR. THOMAS CAIRNS: It got made, in this 3 case, over a period of time. It was not an immediate 4 decision, and it was certainly influenced when I met with 5 Nicholas' family's lawyer and discussed this in more 6 detail, and accepted, at that time, that we had one (1) 7 respected pathologist saying it was a non-accidental 8 injury, another respected pathologist saying it was an 9 accidental head injury. 10 And, at that time, I said, yes, I think at 11 this stage, now that we have two (2) respectable opinions 12 that differ, and opinions are entitled to differ, but at 13 least the focus now was on, it's a head injury, it's 14 accidental/non-accidental. 15 I felt I think we will have to get another 16 opinion. 17 MS. LINDA ROTHSTEIN: That's -- 18 COMMISSIONER STEPHEN GOUDGE: Why wasn't 19 that apparent to you when you got Dr. Halliday's opinion, 20 that you had two (2) respected pathologists coming to 21 opposite views? 22 DR. THOMAS CAIRNS: Commissioner, perhaps 23 it should have been. I'm just being honest -- 24 COMMISSIONER STEPHEN GOUDGE: No, no, I 25 am just, I am trying to understand --
1861 DR. THOMAS CAIRNS: Well, probably -- 2 COMMISSIONER STEPHEN GOUDGE: -- what it 3 is that the lawyer adds to the discussion that tilts you 4 to say, we now need a tiebreaker? 5 DR. THOMAS CAIRNS: I -- I think -- I 6 think the -- the discussion with the lawyer, the 7 intellectual discussion with the lawyer persuaded me that 8 we were at that position. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: Commissioner, let's 12 just go back. And, if we can, with Dr. Cairns just fill 13 in some of the chronology till you get to that discussion 14 with Mr. Burkini (phonetic), I understand? 15 DR. THOMAS CAIRNS: That's correct. 16 MS. LINDA ROTHSTEIN: Was that actually a 17 meeting or was that by telephone or both? 18 DR. THOMAS CAIRNS: I have had both 19 telephone conversations and a face-to-face meeting with 20 Mr. Burkini. 21 MS. LINDA ROTHSTEIN: All right. But 22 before we get there, we know if we turn to page 50, 23 paragraph 138, that there was a hearing to adjourn the 24 child protection proceedings and for a temporary order 25 for care and custody under the Child and Family Services
1871 Act that occurred in July of 1998. 2 And Justice Gauthier on the July 28th of 3 that month made an interim order determining that 4 Nicholas' sister should be placed in the care of her 5 mother and father subject to supervision of the CAS and 6 on terms including that Nicholas' sister continued to 7 live with Maurice and Angela Gagnon. 8 And there was an actual written decision 9 that the judge wrote in support of that conclusion, Dr. 10 Cairns, did you ever see a copy of that until you were 11 preparing for your evidence? 12 DR. THOMAS CAIRNS: Not to the best of my 13 recollection. 14 MS. LINDA ROTHSTEIN: All right. And so 15 you weren't aware that in that decision the judge 16 expressed -- I -- I hope I'm being fair here -- some 17 concerns about the rationale from some of Dr. Smith's 18 conclusions? You've seen that now, you agree with that 19 characterization? 20 DR. THOMAS CAIRNS: I -- I agree with 21 that characterization. 22 MS. LINDA ROTHSTEIN: But you did not 23 know that at the time, sir? 24 DR. THOMAS CAIRNS: That's correct. 25 MS. LINDA ROTHSTEIN: All right.
1881 Paragraph 139, Mr. Parise wrote to Dr. Smith on September 2 the 24th, 1998 to update him on the progress of the case 3 and thank him for his assistance. And about the court 4 proceedings, I'm looking at the second paragraph: 5 "In terms of witnesses that I can now 6 anticipate, obviously you, Dr. Cairns, 7 Dr. Babyn and Dr. Jay will be very 8 significant and required witnesses. In 9 that regard, I am hopeful that you will 10 share some of the content of this 11 letter with those persons so that they 12 may be forewarned of the fact that 13 subpoenas will be issued." 14 And did Dr. Smith, in fact, advise you 15 that Mr. Parise proposed to call you as a very 16 significant and required witness. 17 DR. THOMAS CAIRNS: I have no 18 recollection in either direction. 19 MS. LINDA ROTHSTEIN: Okay. You don't 20 remember being concerned that you were on Mr. Parise's 21 witness list? 22 DR. THOMAS CAIRNS: If this is after the 23 time when I had -- I granted belatedly, indicated through 24 Mr. Keaney, that I wasn't an expert witness. If this was 25 following that, then I would have been surprised because
1891 we had indicated -- if this was before -- 2 MS. LINDA ROTHSTEIN: This is before. 3 DR. THOMAS CAIRNS: Okay. If it was 4 before, then I could understand why he would be having me 5 on the list. 6 MS. LINDA ROTHSTEIN: And then, do you 7 recall that there was, in addition to all of the issues 8 we've touched on, also some concern -- well, let's just 9 get to it. You see that you met with Mr. Keaney on 10 December the 17th, 1998 -- that's in paragraph 143. 11 DR. THOMAS CAIRNS: Yes. 12 MS. LINDA ROTHSTEIN: All right. And at 13 that stage, one (1) of the things you and Mr. Keaney were 14 discussing was the need for him to get all of the 15 physical exhibits from both autopsies made available to 16 Dr. Halliday. 17 DR. THOMAS CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: What were the 19 challenges that had been encountered in collecting all of 20 the physical evidence, Dr. Cairns? 21 DR. THOMAS CAIRNS: My recollection, and 22 quite rightly, Dr. Halliday needed to examine the 23 histological slides, the x-rays, et cetera, and when he'd 24 given his other opinions, he hadn't done that. And, 25 obviously, he wanted to get these. And Mr. Keaney
1901 indicated that they were having difficulty getting these; 2 that Sick Kids would say they were in Sudbury and Sudbury 3 would say that they were in Sick Kids. 4 MS. LINDA ROTHSTEIN: Well, help us with 5 that. Is it Sick Kids the institution, or is it Dr. 6 Smith? 7 DR. THOMAS CAIRNS: No, I'm sorry. I -- 8 I mean -- I should say, Dr. Smith from Sick Kids would 9 say that they were at Sudbury and the Sudbury 10 pathologists were saying they're at Sick Kids. 11 MS. LINDA ROTHSTEIN: And, in fact, what 12 was the case? 13 DR. THOMAS CAIRNS: It was a combination 14 of both. I made a -- a understanding with Mr. Keaney 15 that I would personally take on the -- the job of 16 ensuring that all the specimens, x-rays, whatever, that 17 were required -- that I would obtain them from where ever 18 they were. 19 And I subsequently obtained material from 20 both Sudbury and the Hospital for Sick Children. 21 MS. LINDA ROTHSTEIN: Are you saying you, 22 yourself, made a point of walking over to Dr. Smith's 23 office in order to ensure that you collected all of the 24 physical evidence that resided there? 25 DR. THOMAS CAIRNS: I'm made -- I'm not
1911 saying that I walked over. I made sure that everything 2 that was at Sick Kids was forwarded to my office, and 3 everything that was in Sudbury was forwarded to my 4 office. 5 And when I had, to my satisfaction, felt I 6 had all of those, I then contacted Dr. Halliday who was, 7 by this time in Toronto, and said, Dr. Halliday, I think 8 I have all the material that you are looking for. If 9 you'll come over to my office and we will itemize it and 10 I'll sign it over to you so that you can take it away for 11 your examination. 12 MS. LINDA ROTHSTEIN: And can you assist 13 us as to your recollection as to how cooperative Dr. 14 Smith was in those efforts? 15 DR. THOMAS CAIRNS: In those efforts, I 16 had no difficulty, either with Dr. Smith or with Dr. Chan 17 in Sudbury. 18 MS. LINDA ROTHSTEIN: We see that -- if 19 you go to paragraph 147 -- that by January the 25th, just 20 over a month later, of 1999, Dr. Smith provided you with 21 five (5) glass slides of brain tissue, five (5) 22 corresponding paraffin blocks and a plastic bag 23 containing formalin-fixed tissues obtained at the 24 exhumation. 25 DR. THOMAS CAIRNS: Correct.
1921 MS. LINDA ROTHSTEIN: All right. And 2 until you took charge of the situation, were you 3 satisfied that Dr. Smith had made enough of an effort to 4 collect the physical evidence in a timely way? 5 DR. THOMAS CAIRNS: I honestly can't 6 answer that, because when I got involved it seemed to be 7 he-said/she-said; one thought they were in Sudbury; the 8 other thought they were at the Hospital for -- for Sick 9 Kids. And whether due diligence had been put to 10 concentrating one's efforts, there may not have been due 11 diligence. 12 I -- I took this on specifically, and 13 therefore, I focussed on this, and was not going to let 14 it ride, and I wanted it -- and I wanted it in a -- in a 15 timely fashion. And given that obviously there were the 16 Christmas and the New Year holidays, I did not feel that 17 the time interval between me starting and obtaining these 18 was -- was inappropriate. 19 MS. LINDA ROTHSTEIN: All right. So am I 20 correct then, Dr. Cairns, that receiving the second 21 affidavit from Dr. Halliday was not itself the impetus to 22 go and get an independent opinion, fair? 23 DR. THOMAS CAIRNS: That's correct. 24 MS. LINDA ROTHSTEIN: And if I follow the 25 chronology, it doesn't appear that after your meeting
1931 with Mr. Keaney on December the 17th, that that decision 2 is imminently made, is that fair as well? 3 DR. THOMAS CAIRNS: That's correct. 4 MS. LINDA ROTHSTEIN: If you look at 5 paragraph 149, it appears that in December 1998 as 6 preparations were being made for trial, Mr. Parise 7 expressed concerns to the OCCO and Dr. Smith about the 8 conflicting expert opinions in the case. 9 He suggested that another opinion -- 10 expert opinion, rather then just that of Dr. Cairns, 11 would help support Dr. Smith's opinion. He stated: 12 "I am frankly concerned that Dr. Smith 13 may be left in a situation where the 14 defence, in essence, piles up a bunch 15 of experts to question his conclusions, 16 and leaving him to defend these 17 conclusions alone. I have mentioned to 18 Dr. Smith that it may be appropriate to 19 have another expert of significant 20 qualifications to assist and buttress 21 analysis and conclusions. I recognize, 22 of course, that Dr. Cairns is one (1) 23 of those persons, but again suggest 24 that we might give some thought to a 25 person who may compliment and augment
1941 Dr. Smith's testimony." 2 Do you remember receiving that letter, Dr. 3 Cairns? 4 DR. THOMAS CAIRNS: Yes, I do. 5 MS. LINDA ROTHSTEIN: So first question, 6 is it fair for us to infer that at that stage, Mr. Parise 7 was still under the impression that you were someone who 8 was competent to compliment the testimony of Dr. Smith? 9 DR. THOMAS CAIRNS: That is certainly the 10 way that reads, correct. 11 MS. LINDA ROTHSTEIN: All right. And am 12 I right that it was as a result of that letter and some 13 other discussions, that you and others at the OCCO, in 14 fact, concluded that an independent opinion was required? 15 DR. THOMAS CAIRNS: That is correct. 16 MS. LINDA ROTHSTEIN: All right. And how 17 did you go about selecting an expert? 18 DR. THOMAS CAIRNS: In terms of the 19 expert, since Dr. Smith was known as an eminent pediatric 20 pathologist both in Ontario and across the country, it 21 was felt we would need to go outside Canada. 22 And there were discussions particularly 23 with Nicholas' family lawyer, indicating that we would 24 need to get an expert who was agreeable to -- to their 25 lawyer as well as agreeable to our office.
1951 MS. LINDA ROTHSTEIN: Mm-hm. 2 DR. THOMAS CAIRNS: Dr. Chiasson as our 3 Chief Forensic Pathologist made some inquires. The name 4 of Dr. Mary Case came up. That was then discussed as 5 appropriate for our purposes when Mr. Hauraney had to 6 have an opportunity to check that out. 7 He felt that was also appropriate, and our 8 office then signed an agreement that we would send all 9 the material to Dr. Case, and that we would accept as the 10 official decision of the Office of the Chief Coroner, 11 whatever opinion was rendered by Dr. Case. 12 MS. LINDA ROTHSTEIN: All right. 13 COMMISSIONER STEPHEN GOUDGE: Can you 14 just explain why you thought you had to go out of the 15 country? Was it that Dr. Smith was such an icon, nobody 16 in Canada would take him on, or... 17 DR. THOMAS CAIRNS: You got it. 18 19 CONTINUED BY MS. LINDA ROTHSTEIN: 20 MS. LINDA ROTHSTEIN: And so we can see 21 at the bottom of page 55, paragraph 156, that what you've 22 just described for the Commissioner is set out there; 23 that Dr. Chiasson provided Dr. Case with the materials 24 for her review in January of '99. 25 And that in fact by March the 6th of 1999,
1961 at paragraph 157, that's page 56, she produced her report 2 to Dr. Chiasson. And -- 3 DR. THOMAS CAIRNS: That's correct. When 4 the material was forwarded to Dr. Case, the only material 5 we could not forward to her were the physical exhibits 6 that had been given to Dr. Halliday, because he, at that 7 time, had not finished with them. 8 But it was indicated as soon as Dr. 9 Halliday had finished with them, they would be forwarded 10 to Dr. Case if she wished them. 11 MS. LINDA ROTHSTEIN: Now one (1) further 12 document on this sequence which occurs within two (2) 13 days of that, I assume more or less coincidentally, if 14 you look at page 158, Dr. Cairns, on March the 8th Mr. 15 Parise wrote to you and Dr. Smith about the issue of 16 whether or not you were in fact appropriate to be an 17 expert, and he says: 18 "I have been advised by Mr. Keaney by 19 correspondence that Dr. Cairns had 20 indicated that he is not himself a 21 person who can provide opinion evidence 22 as to the cause of death of Nicholas. 23 It would seem that the basis of this is 24 the following comment from 25 correspondence authored by Mr. Keaney
1971 dated February 19th, 1999. I 2 understand from my discussions with Dr. 3 Cairns that he is not in a position to 4 offer opinion evidence, as he conducted 5 no examination of any physical 6 exhibits, and further, he does not have 7 the expertise to offer opinion on the 8 salient issues in this case. In light 9 of the fact of opinions proffered in 10 earlier meetings and in the affidavit 11 material it was somewhat surprising to 12 have such a comment being made. By the 13 same token, if it is an appropriate 14 comment, then certainly it is one (1) 15 which I would wish confirmed as soon as 16 possible." 17 My question, Dr. Cairns, is why it took so 18 long for you to tell Mr. Parise that he misunderstood the 19 role you could properly play in these proceedings? 20 DR. THOMAS CAIRNS: The issue of the role 21 I was going to play in these proceedings was gone into in 22 some detail when I met with Mr. Keaney. Now, the date of 23 that obviously is more likely to be closer to the date of 24 -- of this. 25 And when I met Mr. Keaney I recognised
1981 what I had inadvertently done in the affidavit and 2 explained that to Mr. Keaney -- 3 MS. LINDA ROTHSTEIN: Mm-hm. 4 DR. THOMAS CAIRNS: -- who subsequently 5 explained it to Mr. Parise. Before that I -- I was not 6 aware of the misrepresentation that had occurred and as 7 soon as I became aware of it, I took steps to correct it. 8 MS. LINDA ROTHSTEIN: You say that, 9 notwithstanding, the documents we've seen that clearly 10 show that Mr. Parise was intending to subpoena you as a 11 necessary and required witness? 12 DR. THOMAS CAIRNS: That's correct. 13 MS. LINDA ROTHSTEIN: Do you wish perhaps 14 you had gotten to that a little sooner, Dr. Cairns? 15 DR. THOMAS CAIRNS: I do. 16 MS. LINDA ROTHSTEIN: So, having received 17 Dr. Case's opinion, first of all, you told us that the 18 agreement had been made more or less from the start 19 between you and Dr. Chiasson that you were going to 20 accept it. 21 Do you remember whether indeed Dr. 22 Chiasson did view Dr. Case's opinion as sound? 23 DR. THOMAS CAIRNS: The best of my 24 recollection, both Dr. Chiasson and my -- that he viewed 25 it as sound.
1991 MS. LINDA ROTHSTEIN: And do you remember 2 whether or not, Dr. Cairns, Dr. Case's opinion in this 3 case persuaded you? 4 DR. THOMAS CAIRNS: There were -- there 5 were two (2) features to that. First of all, we had to 6 accept the opinion, but I know -- I not only was 7 accepting it, but I was believing in it, so I could have 8 -- Commissioner, I could have accepted it, but still held 9 the opinion that it was wrong, but we have an agreement 10 that we were accepting it. 11 I both accepted it and agreed with it. 12 COMMISSIONER STEPHEN GOUDGE: What made 13 you agree with it when you hadn't agreed with Dr. 14 Halliday's earlier opinion? 15 DR. THOMAS CAIRNS: This is a -- a third 16 party and with the discussion with Dr. Chiasson, as well, 17 I felt that I could only -- I could agree to it and 18 accept it. 19 COMMISSIONER STEPHEN GOUDGE: And at that 20 stage Dr. Smith's reputation was not enough on the other 21 side of the scale. 22 DR. THOMAS CAIRNS: That's correct. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: What, if any,
2001 impact did accepting Dr. Case's opinion in this case have 2 on your views of the soundness of Dr. Smith's judgments? 3 DR. THOMAS CAIRNS: It didn't impact. I 4 thought in this case what we had was, we had two (2) 5 reputable experts, Dr. Smith on one (1) side saying it 6 was a non-accidental in -- injury, Dr. Halliday on the 7 other side said it was accidental, and then Dr. Case 8 saying that she didn't know what it was and I accepted 9 that it was a difference of opinions between the two (2) 10 respected experts. 11 MS. LINDA ROTHSTEIN: You didn't read it 12 to suggest that there were fundamentals of infant death 13 pathology that Dr. Smith didn't appear to understand? 14 DR. THOMAS CAIRNS: I did not. I read it 15 that Dr. Smith's interpretation and Dr. Halliday's 16 interpretation were both wrong. 17 MS. LINDA ROTHSTEIN: All right. Okay. 18 I want you to then go back to -- in your thought process, 19 if you can -- to 1997. We've sort of moved forward all 20 the way to 1999. And I want you to go back to the 21 beginning, because in January 1997, as I understand it, 22 that was also your first involvement in Jenna's case. 23 DR. THOMAS CAIRNS: Yes. 24 MS. LINDA ROTHSTEIN: I'll take you to 25 it.
2011 DR. THOMAS CAIRNS: Yes. 2 MS. LINDA ROTHSTEIN: I'll take you to 3 it. 4 DR. THOMAS CAIRNS: I'll -- I'll accept 5 that, thank you. 6 MS. LINDA ROTHSTEIN: I promise I will. 7 And just to -- just, again, to give everybody a little 8 bit of the background facts that create the context here, 9 you'll recall that Jenna was born in April of 1995 and 10 that she died on January the 22nd of 1997 at the age of 11 twenty-one (21) months in Peterborough. 12 DR. THOMAS CAIRNS: Yes. 13 MS. LINDA ROTHSTEIN: And the coroner was 14 Dr. Thompson? 15 DR. THOMAS CAIRNS: That's correct. 16 MS. LINDA ROTHSTEIN: You knew him? 17 DR. THOMAS CAIRNS: I did. 18 MS. LINDA ROTHSTEIN: And he issued a 19 post-mortem warrant that same day, and Jenna's body was 20 transported to the Hospital for Sick Children so the 21 autopsy could be conducted by Dr. Smith. 22 DR. THOMAS CAIRNS: That's correct. 23 MS. LINDA ROTHSTEIN: Right. And if you 24 would get the overview reports again, and in this 25 instance, you're going to Volume Number I. It's Tab 8.
2021 Whoops, no, it's Tab 7, sorry. Paragraph 54 sets out the 2 beginning of your involvement, if I'm not mistaken, Dr. 3 Cairns. That's 144684, paragraph 54. At page -- I can't 4 help you with the page, I can only help you with the 5 paragraph, Registrar, sorry. 6 MR. ROBERT CENTA: 54, page 19. 7 DR. THOMAS CAIRNS: Yep. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: 11 "On January 30, 1997, a case conference 12 was held at the Office of the Chief 13 Coroner for Ontario and Toronto. 14 Present were Inspector Vandervelde, 15 Sergeant McNevan, Detective Constable 16 Lemay, Constable Donaldson, Dr. Smith, 17 Dr. Clark, Dr. Jim Cairns, the Deputy 18 Chief Coroner, and Crown Counsel John 19 Marsland. Those present at the case 20 conference discussed and shared 21 information about the case." 22 Now, Dr. Cairns, help orient all of us 23 with respect to how unusual or common it was to have a 24 case conference comprising that number of the disciplines 25 at this very early stage in an investigation.
2031 DR. THOMAS CAIRNS: When Justice Campbell 2 wrote his report on the Bernardo murders, part of his 3 recommendations was -- were that early on in a death 4 investigation, there should be a multi-discipline meeting 5 of a number of different parties, not just from -- from 6 one (1) discipline. 7 The failure to recognize the significance 8 of Tammy Homolka's injuries was because there was no 9 meeting. Three (3) people were talking in a vacuum. 10 And, following that, there have been a death of a Mark 11 McAvoy in Hamilton and, once again, shall we say the 12 right hand was not speaking to the left hand. 13 That resulted in, at trial, a judge saying 14 that Mark McAvoy had committed suicide, and then a later 15 review, which was done in the multi-discipline fashion, 16 concluded that it could not be a suicide. 17 There was not a criminal trial because it 18 was based on same-fact evidence; a reinterpretation of 19 the evidence. I presided over an Inquest into that 20 death, and the jury made the recommendation that, in the 21 future, all death investigations where different 22 scientific disciplines were involved, that there should 23 be a early case conferencing with the multiple 24 disciplines present at the same time. 25 Justice Campbell, in writing his report,
2041 was aware of that and incorporated that into his 2 recommendations after the Bernardo affair. 3 COMMISSIONER STEPHEN GOUDGE: And did 4 your office introduce any protocol or anything like that 5 saying that was what you would do -- 6 DR. THOMAS CAIRNS: Yes, Commissioner. 7 COMMISSIONER STEPHEN GOUDGE: -- going 8 forward? 9 DR. THOMAS CAIRNS: Yes, Commissioner, we 10 did. It was felt, Commissioner, that in many of these 11 complex cases that different disciplines -- the way it 12 was described is everyone may have a piece of the jigsaw 13 puzzle but you may not see the whole picture unless you 14 put all those pieces together. 15 That certainly had applied in the Mark 16 McAvoy, because there was some cross-polarization that, 17 even though you may not have been an expert in firearms, 18 if you were in another discipline, you may have been able 19 to say, Well, I think the firearms' examiner is wrong. 20 So there was -- there was value in having the multi- 21 disciplines approach. 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: And we note from 25 paragraph 56, Dr. Cairns, that on February the 28th,
2051 1997, there was another meeting. Investigating officers, 2 Dr. Smith, you, Dr. Clark, Dr. Young was at that meeting 3 at the Coroner's Office. 4 And can you assist us with how common it 5 would be for Dr. Young to participate in such a meeting? 6 DR. THOMAS CAIRNS: I think, depending on 7 Dr. Young's availability, that if he was there he would 8 be interested in the meeting and would -- would come to 9 it because -- because he was available. 10 MS. LINDA ROTHSTEIN: The investigators 11 were informed that no injuries could be dated past 24 12 hours. Also at this time, the exact time frame -- 13 estimated time frame for the injuries which were the 14 contributing factors to Jenna's death could not be 15 determined. Therefore, there is no evidence to 16 substantiate a pattern of past abuse. Further medical 17 tests will be conducted in an attempt to assist 18 investigators. 19 So this is a very early attempt to try and 20 determine, I take it, who was responsible for this death? 21 DR. THOMAS CAIRNS: The major issue at 22 this time, the pathology -- everyone was satisfied that 23 the abdominal injuries received were of a non-accidental 24 nature but there was debate of the timing that those 25 injuries were received.
2061 And the two (2) people who were being 2 looked at by the police were the mother and a babysitter. 3 And these meetings were to try and determine was there 4 any way with scientific assistance that we could assist 5 the police in one (1) direction or the other. 6 MS. LINDA ROTHSTEIN: And who were the 7 police looking to to provide them with guidance as to the 8 timing of the injuries? 9 DR. THOMAS CAIRNS: They would primarily, 10 at that time, have been looking to Dr. Smith for that? 11 MS. LINDA ROTHSTEIN: All right. 12 Paragraph 60 records a meeting on July the 13 7th in which you were in attendance with the police 14 investigators and Dr. Smith. And according to police 15 notes, Dr. Smith advised the investigators there were no 16 changes to the cause of death or any of the medical 17 evidence except that the old rib injuries were discovered 18 and so on. 19 Again, Dr. Cairns, can you give us a sense 20 of whether this is more involvement than would be typical 21 for you in a death investigation at this early stage? 22 Help us understand how that level of involvement fit in 23 your norm. 24 DR. THOMAS CAIRNS: That was a typical 25 level of involvement in these cases that I was getting
2071 involved with. 2 MS. LINDA ROTHSTEIN: So in the 3 criminally suspicious and homicide cases where there was 4 some considerable complexity, is that fair -- 5 DR. THOMAS CAIRNS: That's fair. 6 MS. LINDA ROTHSTEIN: -- you were 7 involved at an early stage? 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: And you were 10 frequently involved in the discussions that took place 11 between mostly the police on the one hand and Dr. Smith 12 on the other? 13 DR. THOMAS CAIRNS: It would. In many 14 cases, it would be those. I would also in those 15 meetings, if I felt a further discipline should be added 16 to it, I would make those recommendations as well. But, 17 yes, you're quite right. 18 MS. LINDA ROTHSTEIN: So we know that Dr. 19 Smith, in fact, issued his autopsy report on September 8 20 of 1997, and having regard for the various complexities 21 of this case and the fact that the autopsy that Dr. Smith 22 performed on Jenna was on January 22, 1997, what is your 23 view as to whether that's too long to write a -- too long 24 to take to write a report? 25 DR. THOMAS CAIRNS: No, I felt it was an
2081 appropriate time. He had been indicating in a verbal 2 nature the report, but he had gone back and examined some 3 of the rib fractures in trying to date them, et cetera. 4 So I did not feel -- I think it's fair to say you 5 previously in another one were concerned because the 6 police needed answers and he couldn't do anything. 7 They either -- because of the case 8 conferences, the police were fully informed all along the 9 way; he just didn't have the written report. 10 MS. LINDA ROTHSTEIN: Okay. 11 So on the critical issue of the timing of 12 the injuries, that's obviously not something given the 13 minimalist nature of these reports, which I'm not trying 14 to make any commentary on at the moment that's evident. 15 What's your best recollection as to what 16 Dr. Smith's opinion was on that issue? 17 DR. THOMAS CAIRNS: At -- at that time, 18 there was no clear opinion as to whether it could have 19 happened when the mother was there or whether it could 20 have happened when the babysitter was there. At that 21 time, it appeared it could have been one (1) or the 22 other. 23 COMMISSIONER STEPHEN GOUDGE: That was 24 Dr. Smith's view, as you recall it? 25 DR. THOMAS CAIRNS: That's right,
2091 Commissioner. 2 COMMISSIONER STEPHEN GOUDGE: Was -- 3 MS. LINDA ROTHSTEIN: Well, then -- 4 COMMISSIONER STEPHEN GOUDGE: Sorry. 5 6 CONTINUED BY MR. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: I was just 8 wondering, Dr. Cairns, if you can explain to us why it 9 was that on September the 18th Ms. Waudby was arrested 10 and charged with second degree murder if Dr. Smith 11 couldn't be more definitive than that? 12 DR. THOMAS CAIRNS: I think there were 13 other aspects of the police investigation that made them 14 decide if she couldn't be ruled out that they had other 15 information that they felt they would lay the charges. 16 MS. LINDA ROTHSTEIN: All right. Now, we 17 can finish going through that case at some length, 18 Commissioner, but I think it might help if we actually 19 integrate 1997 with one (1) of the other significant 20 cases that you are reviewing, which was the death of 21 Sharon, which we know also occurred in June of 1997. 22 And that Dr. Smith performed the autopsy 23 on June 13 and 15 at the OCCO. And so to consider that 24 case, Dr. Cairns, you will need the overview report, and 25 you will find it in the other volume II. And you'll find
2101 it at Tab 13. Now, Sharon was, as we know, seven (7) 2 years old at the time of her death not necessarily what 3 everyone would conclude was in the paediatric category, 4 certainly not an infant. 5 Do you know why it was that Dr. Smith was 6 asked to perform this autopsy? 7 DR. THOMAS CAIRNS: I -- I do not. It 8 did fall into pediatrics in that pediatrics is taken up 9 to -- depending on your views, up to sixteen (16) or 10 eighteen (18) years old, and I have no direct 11 recollection is -- was Dr. Chiasson not available that 12 weekend, so I -- I cannot know -- give me a better 13 recollection, but I cannot recall exactly why Dr. Smith - 14 - this could have been done by a forensic pathologist, as 15 well. 16 MS. LINDA ROTHSTEIN: Okay. 17 DR. THOMAS CAIRNS: By a fully trained 18 forensic pathologist. 19 MS. LINDA ROTHSTEIN: All right. And 20 with -- without -- meaning by that, Dr. Cairns, someone 21 who didn't have any particular expertise in paediatric 22 pathology? 23 DR. THOMAS CAIRNS: That's precisely what 24 I mean, yes. 25 MS. LINDA ROTHSTEIN: And do you know why
2111 this autopsy took place at the OCCO at 26 Grenville? 2 DR. THOMAS CAIRNS: Because it wasn't in 3 the -- the baby situation, the pathology assistant, Mr. 4 Blenkinsop was felt -- Dr. Smith felt he would be of 5 great assistance to him. 6 MS. LINDA ROTHSTEIN: All right. At the 7 preliminary inquiry, Dr. Smith testified that Mr. 8 Blenkinsop did most of the cutting in this case because 9 Dr. Smith had his right hand in a cast. You'll find 10 reference to that in paragraph 49 of this report. 11 Do you remember anything about that, Dr. 12 Cairns? 13 DR. THOMAS CAIRNS: Until you've told me 14 today, I had no recollection of that. 15 MS. LINDA ROTHSTEIN: My -- my question 16 really is, do you remember a period of time when Dr. 17 Smith had a cast on his hand, his right hand? 18 DR. THOMAS CAIRNS: Not with any 19 accuracy. 20 MS. LINDA ROTHSTEIN: Okay. Tell us a 21 little bit about Mr. Blenkinsop and his experience and 22 skills? 23 DR. THOMAS CAIRNS: Mr. Blenkinsop had 24 been a pathology assistant with the Office of the Chief 25 Coroner for many, many years. The exact number, I -- I
2121 cannot refer you to, but certainly during the time that 2 Dr. Hillsdon Smith was the chief forensic pathologist and 3 had to somewhat extent lost interest, Mr. Blenkinsop as a 4 pathology assistant was basically running the forensic 5 pathology department. He had a vast knowledge. He'd 6 done a vast number of assisting at autopsies. Was an 7 excellent dissector. 8 And without in any way meaning it 9 flippant, many people felt that his knowledge was that of 10 -- without exams, was that of a pathologist through his 11 years of -- of working there, and his expertise that 12 evolved over that period of time. And I could say that 13 many of the pathologists would have bowed to his ability 14 to do a dissection -- a difficult dissection over their 15 ability, because of his dexterity and his skills of 16 dissection. 17 MS. LINDA ROTHSTEIN: And -- 18 COMMISSIONER STEPHEN GOUDGE: The 19 Coroner's Office had no protocol that pathologists were 20 supposed to do their own dissecting? 21 DR. THOMAS CAIRNS: The pathologists, 22 depending on what office you're in, they will or will not 23 do them. Some of them have their pathology assistants do 24 them routinely, and much of the disec -- dissection in 25 the office still is done by good pathology assistants.
2131 This was more of a unique situation that 2 many of the pathologists felt if it was a difficult 3 dissection, that Mr. Blenkinsop's skills in that would -- 4 would outrank theirs. And particularly if it was a -- a 5 pathologist who hadn't the experience; that his technical 6 skills outranked them. They would still be there; it 7 wasn't a matter of that, but they felt he would do a 8 better dissection. 9 COMMISSIONER STEPHEN GOUDGE: Right. 10 11 CONTINUED BY MS. LINDA ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: Mr. Blenkinsop has 13 passed away? 14 DR. THOMAS CAIRNS: Sadly, yes. 15 MS. LINDA ROTHSTEIN: When was that? 16 DR. THOMAS CAIRNS: Roughly 1999. I 17 would have to double check that. There is a reference 18 later on about pathology crisis with regard to lack of 19 pathologists, and it's in that document. It says there 20 at that time Mr. Blenkinsop was about to retire. 21 MS. LINDA ROTHSTEIN: In July '99? 22 DR. THOMAS CAIRNS: He was retiring 23 because of illness at that time. So I think, probably, 24 it was the year 2000 that he died. 25 MS. LINDA ROTHSTEIN: Okay. The overview
2141 report records that Ms. Reynolds was arrested on June 2 26th of 1997 following the death of her daughter on June 3 13th, so fairly quickly. 4 And the overview report records that the 5 police attempted to contact Dr. Smith on July the 2nd, 6 July the 7th, July the 8th, and July the 9th without 7 success. 8 At that early stage of the investigation 9 into Sharon's death, were you involved in trying to reach 10 Dr. Smith? 11 DR. THOMAS CAIRNS: Not to the best of my 12 recollection, no. 13 MS. LINDA ROTHSTEIN: All right. And 14 indeed, various efforts were made to get Dr. Smith to 15 complete his post-mortem report. If you turn to page 137 16 of the overview report, this is in the run-up to the 17 preliminary inquiry, Dr. Cairns, and it's at page 59. 18 DR. THOMAS CAIRNS: And which paragraph? 19 MS. LINDA ROTHSTEIN: Starting at page 20 137 -- 21 DR. THOMAS CAIRNS: Paragraph 137? 22 MS. LINDA ROTHSTEIN: Yes, that's right. 23 The story begins with Ms. Ferguson, whose was the junior 24 Crown attorney on this case indicated that Dr. Bechard 25 advises he's been in touch with Dr. Smith several times
2151 regarding his report, and then it carries on from there 2 through to 141, 142 through 145, pre-trial conferences 3 and so on. 4 Again, Dr. Cairns, it's all set out there 5 quite clearly -- I don't need to read it into the record 6 particularly -- but I'm wondering, sir, if this was one 7 (1) of the occasions when you were engaged to try and 8 bring to Dr. Smith's attention the importance of getting 9 that post-mortem report completed? 10 DR. THOMAS CAIRNS: No, I was -- I was 11 not involved in that. But I do see from some of these 12 paragraphs that Dr. Bechard who was a Regional 13 Supervising Coroner for the Kingston area appears to be 14 involved. 15 And in paragraph 142, it appears that a 16 Mr. Rumble wrote to Dr. Smith with a copy to Dr. Chiasson 17 and to Dr. Young, trying to find out why the autopsy 18 report was not there, so, I think those are the people 19 that were dealing with this particular one. 20 MS. LINDA ROTHSTEIN: So you don't 21 remember being involved in it, either because Dr. Young 22 said, Here you go, or Dr. Chiasson asked you to be 23 involved because of your ability to get Dr. Smith to 24 respond to you? 25 DR. THOMAS CAIRNS: On this occasion, no,
2161 I was not involved. 2 MS. LINDA ROTHSTEIN: All right. And can 3 you just assist us with that? To what extent of it all, 4 do you know, if Dr. Chiasson would be picking up the 5 phone and saying, Dr. Smith, we really need this report, 6 or did he, for the most part, ask you to make those 7 calls? 8 DR. THOMAS CAIRNS: No, he was -- he was 9 very capable of doing that himself. 10 MS. LINDA ROTHSTEIN: And what about Dr. 11 Young, do you know if he ever was making some calls to 12 Dr. Smith, as well? 13 DR. THOMAS CAIRNS: Yes. And he was 14 capable of doing that, yes. 15 MS. LINDA ROTHSTEIN: Okay. 16 Commissioner, I think it's time for our afternoon break. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 MS. LINDA ROTHSTEIN: And we are on 19 track -- 20 COMMISSIONER STEPHEN GOUDGE: We'll come 21 back at 3:30. 3:30? 22 MS. LINDA ROTHSTEIN: Yes. 23 COMMISSIONER STEPHEN GOUDGE: Thank you. 24 25 --- Upon recessing at 3:14 p.m.
2171 --- Upon resuming at 3:32 p.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Ms. 6 Rothstein...? 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Thank you very 10 much, Commissioner. Dr. Cairns, you and I were still 11 dealing with Sharon's case. We're in 1998. You had just 12 told me that you don't remember being involved in the 13 efforts that were made to get Dr. Smith to complete his 14 post-mortem report. We had just finished looking at 15 paragraph -- all the way to paragraph 145 of the overview 16 report at page 61. 17 I just want to drop down to the last 18 paragraph on that page, if I may, where it becomes 19 apparent that on February the 9th, 1998, a subpoena was 20 issued to Dr. Smith ordering him to attend Court on March 21 the 10th, 1998 and to bring with him any interim or final 22 post-mortem report pertaining to Sharon. 23 And paragraph 147, there was an article in 24 the Kingston Week Standard on February the 5th, 1998 25 about that. And paragraph 148 it appears from a fax
2181 stamp on the article that Dr. Bechard -- the coroner -- 2 faxed that article to Dr. Chiasson on February the 13th, 3 1998, and again, by the time it's become news that a 4 summons has had to be issued in order to get Dr. Smith to 5 tell the Court whether he has an autopsy report 6 available, did it make its way to your ears, sir? 7 DR. THOMAS CAIRNS: No, it didn't in this 8 case, but I could understand why when Dr. Chiasson, Dr. 9 Bechard, and Dr. Young appeared to be dealing with this 10 matter. 11 MS. LINDA ROTHSTEIN: All right. But 12 just help us with that. To what extent, if there was a 13 case that was already starting to attract that much 14 attention, and -- and can we agree that at this stage 15 Sharon's case surely had? 16 DR. THOMAS CAIRNS: Absolutely. 17 MS. LINDA ROTHSTEIN: All right. The -- 18 that wasn't just a regular conversation in the Head 19 Office of the Chief Coroner amongst many members of the 20 senior management team, including you. 21 DR. THOMAS CAIRNS: It may have been, I 22 just don't have direct recollection becau -- I mean it 23 may have been said, We're -- we're trying to get him to 24 do it, but since there were three (3) or four (4) of 25 them, what I'm saying is I didn't have any official
2191 participation in it. 2 MS. LINDA ROTHSTEIN: Fair to say, Dr. 3 Cairns, that having to summons Dr. Smith at this stage in 4 1998 to provide a post-mortem report in a case as charged 5 and high profile as this is very, very troubling? 6 DR. THOMAS CAIRNS: Yes, it is. 7 MS. LINDA ROTHSTEIN: All right. Okay, 8 we know that -- from paragraph 154, just to complete that 9 issue, that on or about March 10th, that's page 63, 1998 10 the Crown provided Dr. Smith's report of the post-mortem 11 examination and Dr. Wood's forensic odontology 12 examination report to the defence and that indeed Dr. 13 Smith's report had been faxed to the Crown attorney's 14 office on March the 8th, do you see that? 15 DR. THOMAS CAIRNS: I do. 16 MS. LINDA ROTHSTEIN: And apparently Dr. 17 Smith had indicated that the delay was because he could 18 not finalize -- the delay in finalizing the report was 19 because he hadn't received the excised scalp back from 20 Dr. Haskell. Does that ring any bells. 21 Can you enlighten us as to that problem at 22 all? 23 DR. THOMAS CAIRNS: No, I -- I can't; I 24 don't know. That's -- Dr. Neal Haskell is a entomologist 25 in Minneapolis, but -- or in Indianapolis, sorry. I -- I
2201 can't particularly help you with that, but I -- I do see 2 also here that he got Dr. Wood's forensic odontology 3 examination, so whether or not, but perhaps one (1) of 4 the other witnesses will help you, whether or not he was 5 delaying his report until he got reports from -- from 6 Haskell and from Dr. Wood, maybe someone else can clarify 7 that for you. 8 MS. LINDA ROTHSTEIN: Okay. Well, we 9 will certainly ask Dr. Chiasson and Dr. Young. 10 That actually takes us, in terms of your 11 involvement in Sharon's case, to 1999, at least upon my 12 review of the Overview Report, because that was the year, 13 as I understand it, in which you and others determined 14 that it was necessary to exhume Sharon's body. 15 Do you remember that? 16 DR. THOMAS CAIRNS: Just before you go 17 there, perhaps out of fairness I -- 18 MS. LINDA ROTHSTEIN: Is there -- 19 DR. THOMAS CAIRNS: -- I did tell you 20 that I was at a meeting sometime after the autopsy was 21 done, where at least a potential issue where these dog 22 bites came up. Commissioner, this would have been at a 23 forensic rounds meeting on a Wednesday afternoon in the 24 Chief Coroner's Office. Dr. Smith attended that meeting. 25 MS. LINDA ROTHSTEIN: Stopping there just
2211 for a moment. Just for the point -- 2 DR. THOMAS CAIRNS: Yes. 3 MS. LINDA ROTHSTEIN: -- of can you help 4 us with the date of that at all, Dr. Cairns? 5 DR. THOMAS CAIRNS: I -- I can't. 6 MS. LINDA ROTHSTEIN: And you've tried? 7 DR. THOMAS CAIRNS: I've tried and -- 8 MS. LINDA ROTHSTEIN: Yes. Okay. 9 DR. THOMAS CAIRNS: -- I can't. It 10 certainly was the time when at least the issue -- it was 11 some -- it was a reasonable period of time after the 12 autopsy. By "reasonable", it was at least probably a 13 month, two (2) months, three (3) months. Unfortunately, 14 I can't help you any further. 15 But Dr. Smith presented this case and 16 presented photographs or 35 millimetre slides as they 17 were then, and indicated to those present -- and those 18 present were Dr. Wood, Dr. Smith, Mr. Barry Blenkinsop, 19 Dr. Chiasson, Dr. Martin Queen, who was one (1) of our 20 other forensic pathologists, and myself. 21 MS. LINDA ROTHSTEIN: Stopping there just 22 for the moment. Dr. Martin Queen was a reasonably junior 23 forensic pathologist at the OCCO at that time? 24 DR. THOMAS CAIRNS: At that time he would 25 -- he was fully qualified, he had his exams from the
2221 United States in forensic pathology but was a relatively 2 junior member. 3 MS. LINDA ROTHSTEIN: And he was full 4 time with -- 5 DR. THOMAS CAIRNS: He was -- 6 MS. LINDA ROTHSTEIN: -- the OCCO? 7 DR. THOMAS CAIRNS: -- full time. Yes, 8 he was. 9 MS. LINDA ROTHSTEIN: Okay. Thank you. 10 DR. THOMAS CAIRNS: And the discussion 11 came up that there had been some information been brought 12 to people's attention that these may not be stab wounds, 13 that they may be dog bites and it was discussed. And 14 primarily the opinion of Dr. Wood was, no, these were dog 15 bites. 16 Barry Blenkinsop, who had been there for 17 years and years and had seen probably more dog bites, 18 more wolf bites, et cetera, than anyone else, was 19 emphatic that these were -- were not. 20 Dr. Chiasson did not feel that they were 21 dog bites and I wouldn't have had the expertise but I was 22 going along with them. And to be fair, Dr. Martin Queen 23 was the only one (1) who wasn't sure that these may not 24 be dog bites. 25 MS. LINDA ROTHSTEIN: Sorry, let's just--
2231 COMMISSIONER STEPHEN GOUDGE: Sorry -- 2 MS. LINDA ROTHSTEIN: -- just -- that's 3 without double negatives. 4 COMMISSIONER STEPHEN GOUDGE: -- the 5 other way around. 6 DR. THOMAS CAIRNS: Sorry. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Doc -- if I 10 understand you, Dr. Cairns, and it's fine, I'll -- 11 COMMISSIONER STEPHEN GOUDGE: I knew what 12 you meant, Dr. Cairns. 13 DR. THOMAS CAIRNS: Thank you. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: You're saying that 17 Dr. Queen was the only one (1) who suggested that these 18 might, indeed, be dog bites? 19 DR. THOMAS CAIRNS: Correct. Yes. 20 MS. LINDA ROTHSTEIN: And are you able to 21 tell the Commissioner how strongly he put forward that 22 view? 23 DR. THOMAS CAIRNS: No, he didn't put it 24 strongly and that may have been because he was a 25 relatively junior member of staff at that time. He made
2241 it, but he didn't make it with any ferocious argument, 2 and the meeting ended up with accepting at that time that 3 in fact these were not dog bites. 4 MS. LINDA ROTHSTEIN: All right. 5 Again, just to help orient you, Dr. 6 Cairns, as well as the Commissioner, we know from 7 paragraph 170 at page 71 that Dr. Smith testified at the 8 preliminary inquiry that it lasted fifteen (15) days, 9 between August 20 -- excuse me, April 27 and 30, August 10 31 and September the 3rd, September the 8th and 11th, 11 15th and 16th, 18th in 1998, as well as on November the 12 18th, 1998. 13 And I'm -- I'm having the sense from you, 14 Dr. Cairns, that throughout that period you didn't have 15 any significant involvement in this particular case -- 16 DR. THOMAS CAIRNS: That -- 17 MS. LINDA ROTHSTEIN: -- is that fair? 18 DR. THOMAS CAIRNS: That's fair. 19 MS. LINDA ROTHSTEIN: All right. And if 20 I'm not mistaken, Dr. Cairns, you do in fact become re- 21 involved in 1999 when in February of that year you attend 22 a meeting of the American Academy of Forensic Sciences? 23 DR. THOMAS CAIRNS: That's correct. 24 MS. LINDA ROTHSTEIN: Will you tell us 25 about that, please?
2251 DR. THOMAS CAIRNS: Dr. Young and myself 2 were both at that meeting and in the course of the week, 3 Dr. Michael Baden, who had been the Chief Medical 4 Examiner in New York City and is probably known for his 5 OJ fame, but a well-recognized forensic pathologist -- 6 COMMISSIONER STEPHEN GOUDGE: What is his 7 last name, Dr. Cairns? 8 DR. THOMAS CAIRNS: Baden, B-A-D-E-N. 9 COMMISSIONER STEPHEN GOUDGE: Thank you. 10 DR. THOMAS CAIRNS: He had brought to Dr. 11 Young's attention his -- the concerns that there may be a 12 travesty of justice going on in Ontario. 13 And he indicated that both he and Dr. Rex 14 Ferris, who was a forensic pathologist, whose name I 15 think has been mentioned here previously -- he had -- 16 he's the one who'd been involved in the Dingby -- Digby 17 in -- in the -- in Australia, along with a Dr. Dorian who 18 was a forensic dentist from Montreal. 19 And the fourth individual, whose name I 20 cannot remember, was a forensic dentist from the New York 21 Medical Examiner's Officer. 22 And they were all strongly of the opinion 23 that what had been interpreted as stab wounds were, in 24 fact, all dog bites. 25
2261 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: Now, did you have 3 any of the conversations with these gentlemen, or is this 4 something that you learned about through Dr. Young? 5 DR. THOMAS CAIRNS: It was -- Dr. Young 6 had the -- the one-to-one conversations. I'm not sure 7 with all of them, but -- if it was primarily Dr. Baden -- 8 the others opinions were shared with him. 9 And, obviously, following that, Dr. Young 10 and I, during the day, would say, Have you heard what 11 I've just heard? And they were concerned that, in fact, 12 there was going to be a travesty of justice very similar 13 to the Australian case because there had been a 14 misinterpretation of what these were due to. 15 MS. LINDA ROTHSTEIN: Now, you've used 16 that language "travedy -- travesty of justice" twice. 17 So, let me ask you, whose language was that to your 18 knowledge? 19 DR. THOMAS CAIRNS: That was Dr. Baden's 20 language. 21 COMMISSIONER STEPHEN GOUDGE: How would 22 they inform themselves of the case, or do you know? 23 DR. THOMAS CAIRNS: Yes, I know that Dr. 24 Ferris had been retained by the defence. And one (1) of 25 the things that very often happens at these international
2271 meetings; you will use the opportunity to chat to your 2 colleagues and show your colleagues a case that you're 3 not so sure about. 4 I also recollect that Dr. Dorian, who is 5 the forensic dentist, had testified at the preliminary 6 hearing. so I think the two main people that the defence 7 may have had at that time were Dr. Ferris and Dr. Dorian. 8 And they then -- and they then have discussed it further 9 with -- with Dr. Michael Baden. 10 COMMISSIONER STEPHEN GOUDGE: And what? 11 Showed him photographs or -- 12 DR. THOMAS CAIRNS: That would -- that 13 would be my assumption, yes. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: And, indeed, 17 Commissioner, you'll find reference to that in the 18 Overview Report; the consultation with Dr. Ferris and so 19 on, starting at paragraph 206, if you want to make note. 20 About a year after this meeting, in 21 February 1999 at the American Academy of Forensic 22 Sciences, you actually prepared a very detailed 23 memorandum recording your recollections of that, as I 24 understand it. 25 Dr. Cairns, would you look at paragraph
2281 216, that's page 99, Have you got that? 2 DR. THOMAS CAIRNS: I do. 3 MS. LINDA ROTHSTEIN: Now, I'm just 4 curious about the date of your memo -- not that anything 5 turns on it, but do you remember if there was anything in 6 particular a year after the meeting that caused you to 7 commit to writing your best recollections of those 8 events? 9 10 (BRIEF PAUSE) 11 12 DR. THOMAS CAIRNS: And this memo was -- 13 was written -- 14 MS. LINDA ROTHSTEIN: So this memo's 15 written -- at least it's dated, and for all we know -- 16 DR. THOMAS CAIRNS: Okay. 17 MS. LINDA ROTHSTEIN: -- the date's 18 wrong. 19 DR. THOMAS CAIRNS: No, no -- no, it's 20 February. This case had -- was still with the Crown. 21 Charges had not been withdrawn at that time and it may 22 well have been -- and my best information would be in 23 preparation for what the Crown -- how the Crown was going 24 to dispose of it, they may have wanted, in writing, what 25 I had indicated verbally.
2291 MS. LINDA ROTHSTEIN: Actually, you know 2 what it is, Dr. Cairns. Mr. Centa quite rightly reminds 3 me; it actually is the date that you had a meeting with 4 the defence counsel, Mr. Napier (phonetic) and Ms. 5 Felicity Hawthorn the following year. 6 So, we'll come to that. I actually know 7 the answer to that question and we'll clarify that. 8 DR. THOMAS CAIRNS: Thank you. 9 MS. LINDA ROTHSTEIN: Thank you very 10 much, Mr. Centa. 11 But what you record there, which is 12 helpful for all of us, is that on return from that 13 meeting, you arranged to have a meeting with Dr. Smith, 14 Dr. Woods and Dr. Chiasson at which time Dr. Woods and 15 Dr. Smith were still of the opinion that none of the 16 wounds were caused by a dog. 17 "Given the divergence of opinions, I 18 felt it was necessary to bring the 19 matter to the attention of the Crown 20 attorney in Kingston and some time in 21 March 1999, I met with the Crown 22 attorney in Kingston and his assistant 23 to discuss the possibility of an 24 exhumation. The chief investigator for 25 the Kingston police was there, as was
2301 Dr. Bechard and Dr. Chiasson". 2 So stopping there for a moment. This is a 3 case where having been told not just by one (1) other 4 expert for the defence, but many, you, it seems and Dr. 5 Young very quickly came to the conclusion that it was 6 necessary to get an independent appraisal of all of the 7 evidence in this case? 8 DR. THOMAS CAIRNS: That's correct. 9 MS. LINDA ROTHSTEIN: And that was quite 10 different than the initial approach that you took in the 11 Nicholas case? 12 DR. THOMAS CAIRNS: That's correct. 13 MS. LINDA ROTHSTEIN: And -- and can you 14 just assist us with what the difference was from your 15 perspective, sir? 16 DR. THOMAS CAIRNS: Basically, these 17 experts were heavy hitters, shall we say. Michael Baden 18 had a lot clout in forensic pathology, as did Dr. Ferris, 19 as did Dr. Dorian, so if we're going to put people on a 20 pedestal, these people were on a similar pedestal, at 21 least to Dr. Smith and particularly in relation to this 22 were probably more expert. 23 Dr. Smith's expertise was not 24 differentiating between stab wounds and dog bites. 25 COMMISSIONER STEPHEN GOUDGE: And Dr.
2311 Babyn might have been or...? 2 DR. THOMAS CAIRNS: Dr. Babyn has been an 3 expert for years on everything. 4 COMMISSIONER STEPHEN GOUDGE: I see. He 5 was the American Dr. Smith or vice versa? 6 DR. THOMAS CAIRNS: Yes, I think that's 7 out of -- on fair assumption. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: So if -- if I 11 understand your memo and looking at the chronology, Dr. 12 Cairns, am I correct that this lead to this meeting with 13 the Kingston police on March the 29th, 1999 at the 14 University Club in Kingston? 15 DR. THOMAS CAIRNS: And in addition to 16 the Kingston police, the Crown attorney for the region, 17 and an assistant Crown attorney. 18 MS. LINDA ROTHSTEIN: All right. And do 19 you have an independent recollection of that meeting, Dr. 20 Cairns? 21 DR. THOMAS CAIRNS: Yes, I -- I do, and 22 basically, it indi -- we indicated to them that we have 23 our odontologist saying that these are stab wounds, two 24 (2) odontologists of reputable who are saying they are 25 not. We've got Dr. Smith saying that these are stab
2321 wounds, and we've got two (2) eminent forensic 2 pathologists saying they are not stab wounds. 3 And we put the case strongly that this 4 could only be resolved by exhuming the body and doing a 5 second autopsy. And at that second autopsy, all defence 6 experts who wished to be present, should be present. 7 MS. LINDA ROTHSTEIN: And what was the 8 police and Crown reaction to that position? 9 DR. THOMAS CAIRNS: My recollection, the 10 Crown had -- could understand the reason for doing it. I 11 feel the police were a -- a little bit more reluctant 12 because they indicated that they had all their evidence 13 independent of the autopsy that made them feel that the - 14 - the situation of the person who had been charged was 15 still appropriate. 16 MS. LINDA ROTHSTEIN: And, in fact, if we 17 look at paragraph 215 of the overview report, we have a - 18 - an affidavit from Detective Sergeant Byrd (phonetic), 19 which he swore after that meeting on April 19, 1999, in 20 which he records in subparagraph G, that it was the 21 unanimous conclusion of Dr. Chiasson, Dr. Bechard, and 22 all others in attendance that the disinterment of Sharon 23 and a second post-mortem examination of her body would be 24 necessary to clear up the questions about the wound 25 depths and description and to help identify more clearly
2331 the cause of those wounds? 2 DR. THOMAS CAIRNS: Correct. 3 MS. LINDA ROTHSTEIN: Now, do you recall, 4 Dr. Cairns, that at this that at this stage in the 5 chronology you also you knew that a cast of Sharon's 6 skull that Dr. Smith had had made had, in fact, gone 7 missing or at least could not be accounted for? 8 DR. THOMAS CAIRNS: In preparing for the 9 testimony, I tried to recall, and I do recall that at 10 some stage a cast that had been made by Dr. Smith had 11 gone missing, but where it -- at what time frame that was 12 -- I know it was seemingly present at the preliminary 13 hearing and was given back to Dr. Smith following that. 14 I don't know whether he had extra work to 15 do on it 'cause it's unusual for an exhibit to be given 16 to a witness, so -- but I do understand that he was given 17 the exhibit following a preliminary hearing and was to 18 have it in his possession. 19 MS. LINDA ROTHSTEIN: And what, if 20 anything, did the decision to disinter Sharon -- Sharon's 21 body have to do with the missing cast? 22 DR. THOMAS CAIRNS: Absolutely nothing. 23 Based -- the -- the opinion by the -- Dr. Baden, Dr. 24 Ferris and the two (2) odontologists had nothing to do 25 with the presence or absence of the cast. And I think it
2341 was a cast of the skull and so that had nothing really to 2 do. It was the strong opinion that the -- the injuries, 3 particularly on the arms and the necks, their opinion was 4 they were dog bites. 5 So, clearly, with or without the cast it 6 was our strong opinion that the body needed to be 7 exhumed. 8 MS. LINDA ROTHSTEIN: Okay. 9 COMMISSIONER STEPHEN GOUDGE: Sorry, Dr. 10 Cairns. Did -- at some point did you discover the cast 11 had gone missing? 12 DR. THOMAS CAIRNS: At some stage, yes. 13 COMMISSIONER STEPHEN GOUDGE: But you 14 just don't remember -- 15 DR. THOMAS CAIRNS: I don't remember -- 16 COMMISSIONER STEPHEN GOUDGE: -- when you 17 learned that? 18 DR. THOMAS CAIRNS: -- Commissioner, when 19 it was. And it -- it -- as far as numbers are concerned, 20 it -- it was no big deal. It wasn't a pivotal piece of 21 evidence because I don't think that Dr. Smith was an 22 expert in making casts, et cetera. So we didn't really 23 feel -- although it's important that a piece of evidence 24 doesn't go missing, we didn't feel that that was a 25 significant piece of evidence one way or the other.
2351 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: And I -- and 4 accepting that, Dr. Cairns, was it nevertheless worrisome 5 that Dr. Smith had lost some potential evidence in the 6 course of his work on this case? 7 Was that not another warning sign about, 8 at the very least, his lack of organization? 9 DR. THOMAS CAIRNS: It was a sign about 10 his lack of organization but I think we felt that the -- 11 the significance of that piece of evidence was of so 12 little importance that it didn't raise an -- an alarm 13 bell that my goodness, we've lost a critical piece or a 14 potential critical piece of evidence. 15 MS. LINDA ROTHSTEIN: And -- and I 16 understand that point but did it not reflect, in your 17 view, some sloppiness or carelessness on -- 18 DR. THOMAS CAIRNS: It -- 19 MS. LINDA ROTHSTEIN: -- his part? 20 DR. THOMAS CAIRNS: -- it did reflect 21 sloppiness and carelessness. Correct. 22 MS. LINDA ROTHSTEIN: All right. Now we 23 know that, from our chronology, Commissioner, if you're 24 at page 6, that between April 30th of 1999 and August the 25 9th of 1999, you were on sick leave, Dr. Cairns?
2361 DR. THOMAS CAIRNS: That's correct. 2 MS. LINDA ROTHSTEIN: And we also know 3 that there was staffing crisis of some magnitude in the 4 Office of the Chief Coroner in June of 1999. You and I 5 have both reviewed the memos about that. 6 You weren't here; that is to say you 7 weren't at the OCCO you were on leave but you became 8 aware of that, did you not? 9 DR. THOMAS CAIRNS: Yes. With regard to 10 some of the full-time forensic pathologists moving on to 11 other posts, yes, I was aware of that. 12 MS. LINDA ROTHSTEIN: And we'll hear more 13 about that from Dr. Chiasson, Commissioner, I expect very 14 soon. 15 Now while you were off, Dr. Cairns, on 16 July the 12th of that year, Sharon's body was exhumed and 17 on July the 13th, 1999, Dr. Chiasson and others attended 18 the second autopsy. 19 And do you remember when -- how soon after 20 you came back to August you learned about their 21 conclusions from that second autopsy? 22 DR. THOMAS CAIRNS: I would have learned 23 pretty much as soon as I came back because it was 24 obviously of great interest. I was aware it was going to 25 take place and I was aware that Dr. Chiasson would be the
2371 pathologist of record but that the -- Dr. Smith would be 2 there and Dr. Wood would be there and the pathologist of 3 choice for the defence would be there, and the 4 odontologist, forensic odontologist for the defence would 5 be there. 6 MS. LINDA ROTHSTEIN: All right. 7 And did you have occasion to speak to Dr. 8 Smith about his views following that second autopsy? 9 Do you actually speak to him about it, Dr. 10 Cairns? 11 DR. THOMAS CAIRNS: I can't recall 12 whether I -- whether I spoke directly with him. I am 13 aware of what his report said. I may have spoken with 14 him but I just -- to be accurate, I'm -- I can't recall 15 definitively. 16 MS. LINDA ROTHSTEIN: Right. No, we can 17 all read his report, and have indeed, but I'm just 18 wondering if you recall a conversation about him -- with 19 him, sorry, about what conclusions he really honestly 20 came to following the exhumation of Sharon. 21 COMMISSIONER STEPHEN GOUDGE: This is Dr. 22 Chiasson or Dr. Smith? 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Dr. Smith.
2381 DR. THOMAS CAIRNS: I am aware that 2 following the exhumation, he did agree that many of the 3 wounds that he had described as stab wounds were in fact 4 dog bites. 5 MS. LINDA ROTHSTEIN: The point of my 6 question, Dr. Cairns, is whether that was troubling for 7 him as a -- as a professional? Whether you remember any 8 direct conversation with him about it. 9 DR. THOMAS CAIRNS: In terms of -- of the 10 troubling, I -- I can't indicate that -- that there was a 11 troubling aspect. I spoke to Dr. Wood who was the 12 forensic odontologist, and he was certainly troubled 13 about his mistake. 14 MS. LINDA ROTHSTEIN: All right. Now 15 there was a meeting we know, in October of 1999, between 16 the Kingston Police, Dr. Chiasson and Dr. Wood with 17 respect to their findings following the second autopsy of 18 Sharon. 19 You were not in attendance of that, Dr. 20 Cairns? 21 DR. THOMAS CAIRNS: That's correct. 22 MS. LINDA ROTHSTEIN: And was that 23 because your involvement in this case was at least, at 24 that stage, less important then it had been in getting 25 the machinery going for the exhumation?
2391 DR. THOMAS CAIRNS: I would say that my 2 only significant involvement in this case was going up to 3 Kingston and letting them know about what we'd heard at - 4 - in -- at the American Academy of Forensic Sciences. 5 The other people involved, Dr. Chiasson, were entirely 6 able, and since I had not been working at the time of the 7 second autopsy, I was pretty much reasonably out of the 8 loop. 9 MS. LINDA ROTHSTEIN: All right. Did you 10 have occasion to speak to Dr. Chiasson directly about his 11 findings following the second autopsy? I realize you 12 weren't there till August, so sometime after you got 13 back, did you speak to him about it? 14 DR. THOMAS CAIRNS: I did. 15 MS. LINDA ROTHSTEIN: What did he say? 16 DR. THOMAS CAIRNS: He felt that they 17 were -- they were dog bites. And he had looked at the 18 slides previously before and he accepted they were dog 19 bites. 20 COMMISSIONER STEPHEN GOUDGE: All of 21 them? 22 DR. THOMAS CAIRNS: Well that's -- that's 23 a very good question, Commissioner. In Dr. Smith's first 24 report he described a wound on the -- in the chest area, 25 that according to Dr. Chiasson, was not described in
2401 sufficient detail. It appeared it might not be a dog 2 bite, but the description made it hard to tell. 3 And at the second autopsy, given the 4 condition of the body, it was not able to -- to re- 5 examine that wound. There was, to the best of my 6 recollection, a rib that was approxim -- were taken for 7 examination. And to the best of my recollection, they 8 weren't able to determine from that rib what in fact had 9 caused it. 10 But the argument, at least theoretically, 11 was that were a dog would be inclined to attack the 12 extremities, the arms, the necks and the leg, they are 13 less likely to -- to attack the trunk and the chest. 14 So there was some discussion, but it could 15 not in any way be confirmed that was the wound in the 16 chest from something else. 17 COMMISSIONER STEPHEN GOUDGE: So I take 18 it your understand was that Dr. Chiasson felt there was 19 one (1) that he couldn't be certain of, one (1) way or 20 the other -- 21 DR. THOMAS CAIRNS: He couldn't -- 22 COMMISSIONER STEPHEN GOUDGE: -- as 23 either a stab wound or dog bite? 24 DR. THOMAS CAIRNS: -- he couldn't really 25 give it any appropriate evaluation.
2411 COMMISSIONER STEPHEN GOUDGE: But the 2 others were dog bites as far as he was concerned? 3 DR. THOMAS CAIRNS: That is correct. 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: Dr. Cairns, can you 7 give us your best recollection as to what if -- what the 8 extent, if any, of the alarm was at the OCCO following 9 this second autopsy, and Dr. Chiasson's conclusion and 10 Dr. Wood's change of opinion? 11 Help us understand how this felt at the 12 time in the offices of the OCCO? 13 DR. THOMAS CAIRNS: It did not feel well 14 at all, because we had Dr. Smith, Dr. Wood, and Dr. 15 Chiasson earlier on, all thinking that these were stab 16 wounds, and then following the exhumation, clearly that 17 was not the case. 18 MS. LINDA ROTHSTEIN: And then when you 19 came back in August of 1999 and learned of all that, what 20 if any impact did it have on your confidence level in the 21 opinions of Dr. Smith? 22 DR. THOMAS CAIRNS: If Dr. Smith alone 23 had been responsible for that opinion, it probably would 24 have given me concern about his confidence. But he had 25 in part relied on the expertise of Dr. Wood. He had also
2421 relied on the long term experience of Mr. Blenkinsop, 2 who, while not a professional, whose opinion certainly 3 would have been taken seriously, and in addition, Dr. 4 Chiasson. 5 So that is the one (1) -- one (1) of the 6 cases where I would say there was collective 7 responsibility, and I wouldn't put -- I would probably 8 put Dr. Smith's involvement there as the least experience 9 of the people I have met -- I've -- I've mentioned to 10 you. 11 So I could understand where if Dr. Smith 12 wasn't sure, that his opinion would have been -- would 13 have been boosted by the fact that Dr. -- or that Mr. 14 Blenkinsop, Dr. Wood, and Dr. Chiasson initially were 15 agreeing with him. 16 MS. LINDA ROTHSTEIN: And at the time 17 that you formed that conclusion were you aware of what it 18 was that Dr. Smith had said under oath during the 19 preliminary inquiry about how he came to form his 20 conclusions or not? 21 DR. THOMAS CAIRNS: I probably am, if you 22 could refresh my memory. 23 MS. LINDA ROTHSTEIN: Well, I'm just 24 wondering, I -- 25 DR. THOMAS CAIRNS: My impression was he
2431 was pretty definitive that they were all stab wounds. 2 MS. LINDA ROTHSTEIN: Right. And indeed 3 in addition to that he was fairly certain of that 4 opinion, quite apart from anyone else's contribution to 5 it. 6 DR. THOMAS CAIRNS: Is that -- 7 MS. LINDA ROTHSTEIN: Were you aware of 8 that at the time? 9 DR. THOMAS CAIRNS: Is -- is that what he 10 says on -- on -- while on the stand? 11 MS. LINDA ROTHSTEIN: Well, I can take 12 you to the exact passages. I'm really -- my question 13 first before we do that is whether you knew what he had 14 said at the preliminary inquiry or not? 15 DR. THOMAS CAIRNS: I did know what he 16 said at the preliminary inquiry. 17 MS. LINDA ROTHSTEIN: So you had read his 18 preliminary inquiry evidence. 19 DR. THOMAS CAIRNS: That's correct. 20 MS. LINDA ROTHSTEIN: All right. And so 21 you were aware of some of the very, very strong opinions 22 that he had put forward, so dismissive of the potential 23 of a dog attack that he had compared it with the 24 certainty of a polar bear attack? 25 DR. THOMAS CAIRNS: Yes, I'm aware of
2441 that. 2 MS. LINDA ROTHSTEIN: So, taking that 3 into account, were you not more alarmed when you came 4 back from your leave of absence in 1999 to learn that 5 indeed Dr. Smith was now viewed as in error? 6 DR. THOMAS CAIRNS: What I am not sure 7 of, his adamant -- he was adamant that these were all 8 stab wounds and I'm not sure whether he was that adamant 9 because he had been backed up by Mr. Blenkinsop, Dr. 10 Wood, and Dr. Chiasson. So I don't know and unless you -- 11 I'm not sure how much their backing of him was making him 12 make such a strong statement. 13 MS. LINDA ROTHSTEIN: All right. But 14 just help us with this, as well, please, Dr. Cairns, how 15 was it that you came to know about what it was that Dr. 16 Smith had said and what he hadn't said during his 17 preliminary inquiry in Sharon's case? 18 Had you read -- has someone given you the 19 transcripts and you had taken the time to review them? 20 DR. THOMAS CAIRNS: Yes, because 21 following the preliminary hearing and the discussion that 22 we were subsequently going to exhume the body, which was 23 not taken lightly, we were very interested to know 24 exactly what had or had not occurred during the 25 preliminary hearing.
2451 MS. LINDA ROTHSTEIN: Okay. And were you 2 the only one who read through those transcripts? 3 DR. THOMAS CAIRNS: No. My -- my feeling 4 -- but I'll have to leave it to others, that there was 5 sufficient interest in this case that I am sure that Dr. 6 Chiasson would have read it -- 7 MS. LINDA ROTHSTEIN: All right. 8 DR. THOMAS CAIRNS: -- Dr. Wood may or 9 may not and I would not be surprised if Dr. Young did not 10 read it, as well. 11 MS. LINDA ROTHSTEIN: Had you had 12 occasion to read a transcript of Dr. Smith's testimony in 13 any other case prior to this occasion? 14 DR. THOMAS CAIRNS: Yes, I had. 15 MS. LINDA ROTHSTEIN: In which cases, do 16 you recall? 17 DR. THOMAS CAIRNS: You'd have to give me 18 some time, maybe I can get back to you. 19 MS. LINDA ROTHSTEIN: Okay. 20 DR. THOMAS CAIRNS: It's not coming to me 21 right -- but I had read transcripts. 22 MS. LINDA ROTHSTEIN: But can you help us 23 as to why that would have occurred? 24 DR. THOMAS CAIRNS: It would have 25 occurred in terms of were there issues coming up that
2461 would -- that would cause you to feel that you needed a 2 second opinion, that sort of issue and that I can recall. 3 I'll get back to you on the specifics. 4 MS. LINDA ROTHSTEIN: But I'm just trying 5 to understand sort of what the process was, Dr. Cairns; 6 please help me because I -- I don't know. 7 From time to time do I hear you to say you 8 looked at the actual sworn testimony of Dr. Smith in 9 order to come to some conclusion about whether or not you 10 should seek an additional opinion -- 11 DR. THOMAS CAIRNS: There -- 12 MS. LINDA ROTHSTEIN: -- an independent 13 opinion? 14 DR. THOMAS CAIRNS: There would be a rare 15 occasion when that happened. Reviewing transcripts of 16 evidence of pathologists in Court was not something that 17 was done with any regularity. In fact, it would have 18 been the exception, rather than the rule. 19 MS. LINDA ROTHSTEIN: Okay. And just to 20 refresh your memory about the preliminary inquiry and not 21 to have avoided that, I just needed to find it, if you 22 turn back to paragraph 187 of the overview report it 23 deals with the issue that you and I have discussed. 24 During cross-examination Dr. Smith also 25 testified about the decision to refer the case to Dr.
2471 Wood. 2 "All right. The issue as to -- there 3 are really two (2) issues here that 4 came along; one (1) was, are there any 5 bite marks on the body, human or 6 animal? The second is that, are there 7 any special techniques which Dr. Woods 8 uses, because Dr. Woods does assist the 9 Office of the Chief Coroner in wound 10 interpretation or woundage 11 interpretation? Are there any 12 observations that he may make using his 13 special expertise that could assist the 14 investigators in this? 15 And so, there were really the questions 16 that were left to him. 17 Number 1. Dog bites. 18 Number 2. Is there anything else that 19 would assist in wound interpretation? 20 Did you speak to him yourself? 21 No, no. 22 Who did you have to get in -- who did 23 you have get in touch with him? Your 24 staff? 25 I don't know if it was the coroner or
2481 the Chief Coroner or who it was. It 2 was, I believe, out of the Office of 3 the Chief Coroner. 4 You felt enough doubt that you wanted 5 another opinion, correct? 6 A: No. I didn't feel any doubt. 7 However the problem of a dog was 8 presented to me. I didn't believe 9 there was dog interference here, but 10 because it was, there's been a dog in 11 the home, then the answer is it's not a 12 dog, it's not the pattern of the 13 markings of dentition, it's not the 14 tearing pattern that one would expect 15 with a dog or a coyote or a wolf. I 16 don't believe it's there, however, I 17 was -- I'm well aware of the expertise 18 of Dr. Wood and so I was happy for him 19 to look at the material." 20 Does that refresh your memory, Dr. Cairns? 21 DR. THOMAS CAIRNS: Yes, it does. 22 MS. LINDA ROTHSTEIN: And, in light of 23 that evidence, do you still say that you -- that you came 24 to the conclusion that Dr. Smith had been part of some 25 collective decision making in this case?
2491 DR. THOMAS CAIRNS: Clearly, that answer 2 is indicating that no matter what anyone told him, he had 3 come to that conclusion himself without the involvement 4 of anyone else. 5 MS. LINDA ROTHSTEIN: And that is 6 troubling, is it not, in light of the results of the 7 second autopsy? 8 DR. THOMAS CAIRNS: In light of the 9 results of the second autopsy, but I will say once again, 10 that if that was his opinion, he was getting it backed up 11 initially by other people in the office. 12 COMMISSIONER STEPHEN GOUDGE: Did it 13 concern you that the other people were also part of the 14 office; that is, at the very best you had a team failure? 15 DR. THOMAS CAIRNS: Absolutely, in this 16 one (1) case, yes. And, certainly, I've talked to Dr. 17 Chiasson, I've talked to Dr. Wood about it, and they -- 18 they were -- they were very concerned that, yes, this 19 wasn't just one (1) individual, that there was collective 20 areas that -- that put this case astray. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: All right, just 24 before we conclude today, I want to deal with November of 25 1999. We know, Dr. Cairns, that on the 10th of that
2501 month a program about Dr. Smith aired on The Fifth 2 Estate. 3 You recall that? 4 DR. THOMAS CAIRNS: I do. 5 MS. LINDA ROTHSTEIN: And if I'm not 6 mistaken, the OCCO had advance notice of that program. I 7 believe if you turn up Volume IV, Tab 11, you will see a 8 letter to Dr. Young about that episode. And that's 9 115843. 10 DR. THOMAS CAIRNS: I see this letter. 11 MS. LINDA ROTHSTEIN: Do you remember 12 seeing this particular letter, Dr. Cairns? 13 DR. THOMAS CAIRNS: I can't say 14 particularly yes or no. I may well have seen it. 15 MS. LINDA ROTHSTEIN: Certainly, at some 16 point, you became aware that they were doing the program 17 and they wished to interview you. 18 DR. THOMAS CAIRNS: That's correct. 19 MS. LINDA ROTHSTEIN: And you agreed to 20 be interviewed for that program. 21 DR. THOMAS CAIRNS: I did. 22 MS. LINDA ROTHSTEIN: Did you discuss it 23 with Dr. Young first? 24 DR. THOMAS CAIRNS: I would certainly 25 have had a discussion. When The Fifth Estate are --
2511 coming to the office, I think everybody has a discussion. 2 COMMISSIONER STEPHEN GOUDGE: Very wise. 3 DR. THOMAS CAIRNS: It's a little like 60 4 Minutes are at the front door; would you like to speak to 5 them. 6 COMMISSIONER STEPHEN GOUDGE: Yes. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Do you remember 10 what Dr. Young said about the appropriateness of you 11 being interviewed for that program? 12 DR. THOMAS CAIRNS: There -- there was 13 not an issue that we would -- we would participate in the 14 program. 15 MS. LINDA ROTHSTEIN: Okay. He wasn't 16 concerned about that. 17 DR. THOMAS CAIRNS: No. I -- I do see in 18 this letter that the Gagnon family were entitled to give 19 permission, or they had the material and they could give 20 it to The Fifth Estate if they wished. 21 MS. LINDA ROTHSTEIN: We have a copy of 22 the transcript of that program at Tab Number 13 at the 23 back of that claim. It's 140888 at page 8. 24 Have you got that, Dr. Cairns? 25 DR. THOMAS CAIRNS: On page 8 of the
2521 transcript? 2 MS. LINDA ROTHSTEIN: Of the transcript. 3 DR. THOMAS CAIRNS: I do. 4 MS. LINDA ROTHSTEIN: You've had an 5 opportunity to review that? 6 DR. THOMAS CAIRNS: I have. 7 MS. LINDA ROTHSTEIN: Are you satisfied 8 that it fairly sets out your remarks? 9 DR. THOMAS CAIRNS: It is an accurate 10 reflection of my remarks during that program, correct. 11 MS. LINDA ROTHSTEIN: Okay. At the time 12 that you were interviewed, did you appreciate that Mr. 13 Malerick, who was the journalist, had also interviewed 14 Dr. Case? 15 DR. THOMAS CAIRNS: At the time of The 16 Fifth Estate -- when the Fifth Estate comes to see you, 17 they don't tell you anything. I know Victor, and I said, 18 you know, do you want to go in and have a chat for a half 19 an hour before we go on air. That's not the type of 20 program it is. 21 He said, no, we'll do it on air. So I was 22 not naive that going air that they could put anything to 23 me whether I was aware of it or not. 24 MS. LINDA ROTHSTEIN: Would you turn to 25 page 13 of that transcript, please? At the bottom of the
2531 page, it begins the interview with you, Mr. Malerick: 2 says: 3 "What had happened was the Ontario 4 Coroner's Office wanted an examination 5 into what caused the baby's death..." 6 And you'll, Dr. Cairns, that this is about 7 Nicholas. 8 "...and hired Dr. Charles Smith to look 9 into it. He's the director of the 10 Ontario Pediatric Forensic Pathology 11 Unit at the Toronto Hospital for Sick 12 Children. Although he is not a 13 certified forensic pathologist --" 14 DR. THOMAS CAIRNS: I'm sorry, which page 15 are we on? 16 MS. LINDA ROTHSTEIN: Sorry, it's page 13 17 of -- at the top, -- 18 DR. THOMAS CAIRNS: Oh, sorry. 19 MS. LINDA ROTHSTEIN: -- page 6 of the 20 actual transcript. 21 DR. THOMAS CAIRNS: Thank you. 22 MS. LINDA ROTHSTEIN: And I'm at the last 23 paragraph and make sure you're there with me. 24 Are you with me now? 25 COMMISSIONER STEPHEN GOUDGE: Right at
2541 the bottom. 2 DR. THOMAS CAIRNS: Yes, I am now. Thank 3 you. 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: Okay. And then it 7 says: 8 "Although he is not a certified 9 forensic pathologist, Dr. James Cairns, 10 the deputy chief coroner on Ontario, 11 considers Dr. Smith top notch." 12 Was that a fair characterization of your 13 comments to him? 14 DR. THOMAS CAIRNS: Yes, it was. 15 MS. LINDA ROTHSTEIN: And then you're 16 quoted as saying: 17 "He's got his fellowship in pathology. 18 He has his American fellowship in 19 pediatric pathology. He's only one (1) 20 of four (4) people in Canada who has 21 that. And that particular sub- 22 speciality exam, a significant amount 23 of it deals with forensic pathology, 24 and he's been doing forensic pathology 25 since 1990."
2551 You said that, sir? 2 DR. THOMAS CAIRNS: I did. 3 MS. LINDA ROTHSTEIN: And then if we 4 continue on to page 18, you'll see that at the bottom of 5 that page there begins some examination -- sorry, wrong 6 page, sir. There's some -- Dr. -- Dr. Case's comments, 7 which I will come back to in a moment, but at the bottom 8 of page 25 of the PFP number, page 18 of the transcript, 9 you will see that the episode turns to the discussion not 10 of Nicholas', but of the case against SM, that you and I 11 reviewed previously involving Justice Dunn. 12 Do you remember that discussion in the 13 program? 14 DR. THOMAS CAIRNS: That's correct. 15 MS. LINDA ROTHSTEIN: Okay. And if you 16 look at page 27 of the PFP number -- 17 DR. THOMAS CAIRNS: Yes. 18 MS. LINDA ROTHSTEIN: -- you will see 19 that Mr. -- Dr. Gilles, who had given evidence in that 20 case is very critical about the evidence that had been 21 given by Dr. Smith in that case. 22 You recall that? 23 DR. THOMAS CAIRNS: I do. 24 MS. LINDA ROTHSTEIN: And then there's an 25 excerpt from Mr. Malerick's question of you. It begins:
2561 "But according to deputy coroner, James 2 Cairns, the judge simply got it wrong. 3 Cairns: I, with due respect, feel that 4 the medical evidence was confusing and 5 that the judge may not have clearly 6 understood all the evidence that was 7 being given." 8 He was interested in your view because you 9 were the Deputy Chief Coroner, was he not, sir? 10 DR. THOMAS CAIRNS: He was. 11 MS. LINDA ROTHSTEIN: He assumed you were 12 speaking on behalf of the Office of the Chief Coroner? 13 DR. THOMAS CAIRNS: Correct. 14 MS. LINDA ROTHSTEIN: And am I correct, 15 sir, that, at that point, you had not read the entire 16 judgment? 17 DR. THOMAS CAIRNS: I had not. 18 MS. LINDA ROTHSTEIN: Had you read all 19 the transcripts? 20 DR. THOMAS CAIRNS: No, I had not. 21 MS. LINDA ROTHSTEIN: Any of them? 22 DR. THOMAS CAIRNS: No. 23 MS. LINDA ROTHSTEIN: Had you discussed 24 the case with a forensic pathologist other than Dr. 25 Smith?
2571 DR. THOMAS CAIRNS: Other than Dr. Smith 2 in this case? I hadn't -- no, I had not. 3 MS. LINDA ROTHSTEIN: On what basis did 4 you conclude, Dr. Cairns, that the judge may not have 5 clearly understood all the evidence that was being given? 6 DR. THOMAS CAIRNS: As a result of the 7 statement at some time that Dr. Smith had given me. 8 MS. LINDA ROTHSTEIN: In November of 9 1999, you were still prepared to criticize the judge on 10 the basis of what Dr. Smith had told you and nothing 11 more? 12 DR. THOMAS CAIRNS: I don't -- I -- I 13 made the statement, "may not have understood;" I don't 14 think that's necessarily criticizing the judge. But in 15 your -- to answer your question yes, I was still 16 accepting Dr. Smith's work. 17 MS. LINDA ROTHSTEIN: Do we infer from 18 that, sir, that in November of 1999, your confidence and 19 trust in Dr. Smith had not yet diminished? 20 DR. THOMAS CAIRNS: That is correct. 21 MS. LINDA ROTHSTEIN: Do you now accept, 22 Dr. Cairns, that you were not in a position to 23 independently and objectively comment on what the judge 24 understood and what he did not? 25 DR. THOMAS CAIRNS: I do accept that I
2581 was not in a position to independently make that comment. 2 MS. LINDA ROTHSTEIN: And that in your 3 position as the Deputy Chief Coroner you ought not to 4 have made that comment? 5 DR. THOMAS CAIRNS: I'm not -- I -- I 6 struggle a little with that. I can see in hindsight the 7 interesting -- there were no comments following that. 8 Nobody was up in arms, nobody complained to our office. 9 We didn't get a single -- a single comment about the 10 inappropriateness or otherwise of that comment. 11 But in hindsight and reflection, I would 12 be much more careful about making a comment of that 13 nature. 14 MS. LINDA ROTHSTEIN: How many of The 15 Fifth Estate's viewers would have read that decision and 16 known one way or the other whether you were right or 17 wrong, sir. 18 DR. THOMAS CAIRNS: I would imagine 99 19 percent of them would not. 20 MS. LINDA ROTHSTEIN: Did you watch the 21 program? 22 DR. THOMAS CAIRNS: I did. 23 MS. LINDA ROTHSTEIN: Did you hear the 24 interview of Dr. Mary Case? 25 DR. THOMAS CAIRNS: I heard the interview
2591 of Dr. Mary Case. 2 MS. LINDA ROTHSTEIN: And you were, of 3 course, familiar with her views going back to page 20? 4 DR. THOMAS CAIRNS: Yes, I was. 5 MS. LINDA ROTHSTEIN: She says: 6 "I disagreed with it." 7 She's referring to Dr. Smith's opinion in 8 Nicholas' case. 9 "His conclusion was that the child had 10 died from blunt injury to the head and 11 my conclusion was that I could see no 12 injury so I could not make that 13 diagnosis. To make a diagnosis of head 14 injury, you must see something in 15 addition to the brain swelling." 16 I take it, Dr. Cairns, that wasn't 17 particularly new to you, hearing that; you knew that from 18 reading her report previously? 19 DR. THOMAS CAIRNS: I think that's pretty 20 much what she had said in her report previously. 21 MS. LINDA ROTHSTEIN: All right. But 22 take a look at page 21 of the PFP document. Again at the 23 bottom of the page: 24 "Case: Now he made another statement 25 and was, 'Well, if it's not head injury
2601 it was asphyxiation by strangulation, 2 but one (1) of those things happened.' 3 I consider this in the area of 4 irresponsible testimony." 5 Do you remember hearing her say that, Dr. 6 Cairns? 7 DR. THOMAS CAIRNS: I do. 8 MS. LINDA ROTHSTEIN: Did that have an 9 impact on your confidence in Dr. Smith's opinions? 10 DR. THOMAS CAIRNS: It did not. 11 MS. LINDA ROTHSTEIN: In your mind, was 12 this just another example of experts disagreeing? 13 DR. THOMAS CAIRNS: At that time, 14 correct. 15 MS. LINDA ROTHSTEIN: Mr. Commissioner, I 16 don't have any more questions in this area unless you do, 17 and so it's been a long day for Dr. Cairns and I'm 18 proposing that we adjourn slightly early and certainly 19 much earlier than we had perhaps forecasted. 20 COMMISSIONER STEPHEN GOUDGE: We are 21 getting along fine, Dr. Cairns, so -- 22 DR. THOMAS CAIRNS: Thank you, 23 Commissioner. 24 COMMISSIONER STEPHEN GOUDGE: -- it's 25 been a long day for you. We will rise now until 9:30
2611 tomorrow morning. 2 3 --- Upon adjourning at 4:20 p.m. 4 5 6 7 Certified Correct, 8 9 10 11 ___________________ 12 Roland Lokey, Ms. 13 14 15 16 17 18 19 20 21 22 23 24 25