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 27th, 2007 25
21 Appearances 2 Linda Rothstein ) 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 (np) ) 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 (np) ) 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 ) the Wrongly Convicted 12 13 Jackie Esmonde (np) ) Aboriginal Legal Services 14 Kimberly Murray (np) ) of Toronto and Nishnawbe 15 Sheila Cuthbertson ) Aski-Nation 16 Julian Falconer (np) ) 17 18 Suzan Fraser (np) Defence for Children 19 International - Canada 20 21 William Manuel ) Ministry of the Attorney 22 Heather Mackay (np) ) General for Ontario 23 Erin Rizok (np) ) 24 Kim Twohig (np) 25
41 APPEARANCES (cont'd) 2 3 Natasha Egan ) College of Physicians and 4 Carolyn Silver (np) ) Surgeons 5 6 Michael Lomer ) For Marco Trotta 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS 2 Page No. 3 4 THOMAS JAMES CAIRNS, Resumed 5 6 Continued Examination-In-Chief 7 by Ms. Linda Rothstein 6 8 Cross-Examination by Mr. Brian Gover 213 9 10 11 12 13 14 15 Certificate of transcript 248 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 Ms. Rothstein...? 8 MS. LINDA ROTHSTEIN: Thank you very 9 much, Commissioner, good morning. Good morning, Dr. 10 Cairns. 11 12 THOMAS JAMES CAIRNS, Resumed 13 14 DR. THOMAS CAIRNS: Good morning. 15 16 CONTINUED EXAMINATION-IN-CHIEF BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: Dr. Cairns, when we 18 left off yesterday afternoon you and I had reviewed a 19 number of the issues that had arisen with respect to Dr. 20 Smith up to the end of 1999. 21 I just wanted to go back through the '90s, 22 very briefly if we can, to explore with you the extent to 23 which you had assumed responsibility for the issues 24 regarding Charles Smith, and the extent to which those 25 responsibilities were also shared by the Chief Coroner,
71 Dr. Young. 2 I understand that in November of 1991 3 there was the first complaint by anyone about Dr. Smith 4 to the College of Physicians of -- College of Physicians 5 and Surgeons of Ontario, do you recall that? 6 DR. JAMES CAIRNS: Not specifically. I 7 would have just joined literally a few weeks before that. 8 MS. LINDA ROTHSTEIN: Fair enough. Would 9 it be reasonable for the Commissioner to conclude that in 10 the early stages of dealings with the College of 11 Physicians and Surgeons, you were not responsible, Dr. 12 Young was, on behalf of the OCCO. 13 DR. THOMAS CAIRNS: Yes. I mean I was 14 the new person on the block. I was just trying to learn 15 the ropes at that -- at that stage. 16 MS. LINDA ROTHSTEIN: All right. And I 17 anticipate, Commissioner, that Mr. Sandler therefore will 18 have some questions for Dr. Young about the early 19 communications between the OCCO and the CPSO. 20 Indeed with respect to those 21 communications, all of the contact between the College of 22 Physicians and Surgeons and the OCCO with respect to 23 concerns, complaints, that have been raised by various 24 persons about the conduct of Dr. Smith, is it fair to 25 understand that Dr. Young was really the lead on that
81 from the OCCO? 2 DR. JAMES CAIRNS: I think -- I think 3 that's fair. 4 MS. LINDA ROTHSTEIN: And to the extent 5 that there are some meetings that you attended in his 6 company, you were really there as second in command? 7 DR. JAMES CAIRNS: That would be 8 correct. 9 MS. LINDA ROTHSTEIN: All right. We do 10 have one (1) particular communication we're going to come 11 to later in the piece, Dr. Cairns, where you took the 12 initiative to call the CPSO, but that one (1) is rather 13 different, is that fair? 14 DR. JAMES CAIRNS: Without knowing it 15 right this second, which one (1) you're -- 16 MS. LINDA ROTHSTEIN: The -- in the Jenna 17 case. 18 DR. JAMES CAIRNS: That's correct, in 19 the Jenna case that was different, yes. 20 MS. LINDA ROTHSTEIN: All right. So, if 21 we go to 1994 on the time line, we know that in June Dr. 22 Young was appointed the Assistant Deputy Minister Public 23 Safety Division at the Ministry of the Solicitor General 24 and that was in addition to his responsibilities as the 25 Chief Coroner, was it not?
91 DR. JAMES CAIRNS: That's correct. 2 MS. LINDA ROTHSTEIN: How did that have 3 an impact on his ability to be around and dealing with 4 any number of concerns, including that about Dr. Smith? 5 DR. JAMES CAIRNS: He took on this extra 6 responsibility initially in that somebody had to be in -- 7 the previous Assistant Deputy Minister had retired and 8 when he retired, Dr. -- Mr. Doug Lucas, who was the 9 Director of the Centre of Forensic Science, took on the 10 job initially and it was meant to be one of paper 11 shuffling. 12 In other words, if a question came in, 13 what branch should it -- should it go to, so initially 14 Dr. Young would be fulfilling that role, which was 15 considered to be a relatively minor role while continuing 16 as the Chief Coroner. 17 MS. LINDA ROTHSTEIN: All right. And to 18 what extent did you keep him up to date on what you 19 considered to be problematic cases, difficult cases? 20 DR. JAMES CAIRNS: He would have been 21 kept ful -- fully up to date at all times. 22 MS. LINDA ROTHSTEIN: All right. So, for 23 example, you told us yesterday about the work that you 24 did that preceded the decision to exhume the body of 25 Paolo in 1994, do you recall that?
101 DR. JAMES CAIRNS: Yes. 2 MS. LINDA ROTHSTEIN: Would you have 3 discussed that issue with Dr. Young prior to reaching a 4 final conclusion that that was appropriate? 5 DR. JAMES CAIRNS: Yes. 6 MS. LINDA ROTHSTEIN: All right. And 7 would Dr. Young have been part of any of the 8 conversations with Dr. Smith that preceded your decision 9 to seek the exhumation of Paolo? 10 DR. JAMES CAIRNS: He may or may not, 11 but that would -- that wouldn't have been necessary. He 12 may have been, but in the event that he wasn't, obviously 13 I'd be in a position to tell him the reasons why we felt 14 that was necessary and we'd be able to brief him on the - 15 - the concerns that had given rise to that, including the 16 reviews of Dr. Babyn, et cetera. 17 MS. LINDA ROTHSTEIN: All right. 18 DR. JAMES CAIRNS: But it's also 19 possible that he may have been, but it would be either -- 20 when he was in the office, we -- we, it's a small office, 21 so we -- we'd be bumping into each other on a -- on a 22 daily basis, whether it was a formal lecture or whether 23 it was over lunch, so we pretty well -- both of us knew 24 what was going on at all times. 25 MS. LINDA ROTHSTEIN: And the decision
111 that you and others made in June of 1997 that you should 2 ask for the exhumation of Nicholas' body, was that also 3 the sort of decision that you would have sought Dr. 4 Young's involvement in? 5 DR. JAMES CAIRNS: That's correct. 6 MS. LINDA ROTHSTEIN: All right. And 7 what about the concerns that you acknowledged yesterday 8 with respect to Dr. Smith's timeliness and 9 responsiveness? You -- you were fairly confident you 10 knew about those by 1997, how much of that would you have 11 brought to Dr. Young's attention? 12 DR. JAMES CAIRNS: Dr. Young would have 13 been -- would have been aware of those issues and would 14 have been aware that, in fact, Dr. Chiasson and myself 15 would be having a series of meetings with Dr. Becker to 16 see what we could do about that. 17 MS. LINDA ROTHSTEIN: And indeed was it 18 your practice to update him after a meeting with Dr. 19 Becker as to the results, the -- the go-forward plan, if 20 any? 21 DR. JAMES CAIRNS: Anything of 22 significance I would be updating him on, yes. 23 MS. LINDA ROTHSTEIN: All right. In the 24 CAS proceedings involving Lianne Gagnon, we reviewed 25 yesterday your role in those proceedings, and
121 particularly the affidavits that you pre -- or the 2 affidavit that you prepared. 3 Would that have been the sort of thing 4 that you would have discussed with Dr. Young prior to 5 swearing it? 6 DR. JAMES CAIRNS: I do not think I 7 would have discussed the affidavit that I signed with -- 8 I don't think I discussed that with Dr. Young. Mr. 9 O'Marra was our legal counsel, and it would have been 10 discussed with him, but I -- I don't specifically think 11 that I would have discussed it with Dr. Young before 12 signing it. 13 MS. LINDA ROTHSTEIN: All right. We do 14 know that after those events there was an investigation 15 by the Ombudsman into that case. 16 DR. JAMES CAIRNS: That's correct. 17 MS. LINDA ROTHSTEIN: And I take it at 18 that stage you would have had a number of conversations 19 with Dr. Young about the concerns that Maurice Gagnon had 20 raised with respect to your affidavit and other matters? 21 DR. JAMES CAIRNS: That's correct. And 22 he would have been fully aware of that at that time, yes. 23 MS. LINDA ROTHSTEIN: But that was some 24 time after the events? 25 DR. JAMES CAIRNS: That was some time
131 after the event. 2 MS. LINDA ROTHSTEIN: All right. And 3 you've told us, of course, about Dr. Young's involvement 4 in the decision to seek the exhumation of Sharon's body 5 following your joint attendance at the meeting of the 6 American Academy of Forensic Sciences in February of 7 1999. 8 Thereafter, was the Sharon case one (1) in 9 which Dr. Young was involved? 10 DR. JAMES CAIRNS: Dr. Young would have 11 been the initial triggerer because he was the one (1) who 12 met with Dr. Baden; then we discussed it while we were 13 down there and we made the decision that when we come 14 back we would have to notify the Crown attorney. 15 In terms of who was going to do that, I 16 was the one (1) that physically went and discussed it 17 with the Crown. Dr. Young would have been fully aware of 18 that; fully aware it was intended for the ex -- for the 19 exhumation to take place. 20 And at the actual time, as that exhumation 21 came closer, Dr. Young more likely would have had more 22 involvement because I was off on sick leave at the time. 23 And I know we had discussed in general terms, to ensure 24 that the exhumation and the second autopsy was done at a 25 -- in a time frame that would ensure that all the
141 different experts that were going to attend could attend. 2 So he would have been at that stage, since 3 I wasn't around, doing, shall we say, the -- the more 4 detailed day-to-day issues that probably, if I'd been 5 there, he may have left those to me. 6 MS. LINDA ROTHSTEIN: And so, during that 7 period, which, Commissioner, you will recall was April 8 30th to August 9th of 1999, we know from the time line 9 that, for example, on May the 6th, 1999, there was a 10 letter from Dr. Young sent to Maurice Gagnon with respect 11 to a complaint Mr. Gagnon also made to the Coroner's 12 counsel. 13 And so are we to assume, Dr. Cairns, that 14 you had very little, if any, involvement in dealing with 15 Mr. Gagnon with respect to that complaint? 16 DR. JAMES CAIRNS: With regard to 17 anything it would be going to Coroner's counsel, it would 18 be the norm for Dr. Young to -- to reply to that. 19 MS. LINDA ROTHSTEIN: All right. That's 20 helpful. 21 Can you assist the Commissioner at all 22 with respect to any recollection of meetings as of the 23 end of 1999 in which you and Dr. Young were in -- in 24 attendance where one (1) or both of you discussed 25 directly with Dr. Smith any number of concerns that had
151 arisen, whether it was about the delay in his reports? 2 Was there ever a sit-down with Dr. Young 3 as of -- sorry, with Dr. Smith as of this point? 4 DR. JAMES CAIRNS: My -- my feeling 5 would be yes but I cannot give it to you in definitive 6 terms. 7 MS. LINDA ROTHSTEIN: Okay. 8 All right, that takes us to 2000 then, and 9 we touched on this yesterday. Going back to the case of 10 Sharon and the meeting you'll recall, Dr. Cairns, that 11 you had with defence counsel for Ms. Reynolds in February 12 of 2000. 13 So if you could go back to the overview 14 reports, Volume II, and it's Tab 13. And I would be 15 grateful if you would turn up paragraph 257. It's 16 144531. 17 DR. JAMES CAIRNS: Sorry, tab...? 18 MS. LINDA ROTHSTEIN: That's Tab 13. 19 COMMISSIONER STEPHEN GOUDGE: Sharon...? 20 MS. LINDA ROTHSTEIN: Sharon. 21 COMMISSIONER STEPHEN GOUDGE: I have 22 another PFP number, does that matter? 23 DR. JAMES CAIRNS: So have I. 24 COMMISSIONER STEPHEN GOUDGE: 144453? 25 MS. LINDA ROTHSTEIN: Did I say something
161 else? 2 COMMISSIONER STEPHEN GOUDGE: Yes. 3 MS. LINDA ROTHSTEIN: That's what I 4 meant. Thank you. 5 COMMISSIONER STEPHEN GOUDGE: 144453 -- 6 MS. LINDA ROTHSTEIN: And it's page 113. 7 DR. JAMES CAIRNS: I'm sorry, I have a - 8 - in my tab -- 9 COMMISSIONER STEPHEN GOUDGE: Use the 10 paragraph number. 11 MS. LINDA ROTHSTEIN: It's paragraph 257. 12 DR. JAMES CAIRNS: Tab 13, Volume II, 13 I've got something entirely different, but I -- I can 14 follow it from the -- 15 COMMISSIONER STEPHEN GOUDGE: The white 16 volume. The white volume. 17 MS. LINDA ROTHSTEIN: It's the white 18 volume. The -- 19 DR. JAMES CAIRNS: Oh, it's -- I 20 apologize. Sorry about that. I got that now and... 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: You and I touched 24 on this yesterday. It was a meeting with Mr. Napier and 25 Ms. Hawthorn.
171 Do you have that, Dr. Cairns? 2 DR. JAMES CAIRNS: At 255? 3 MS. LINDA ROTHSTEIN: 257. 4 DR. JAMES CAIRNS: 257, yes, I do. 5 MS. LINDA ROTHSTEIN: Who, at that stage, 6 were representing Ms. Reynolds. 7 Do you remember that? 8 DR. JAMES CAIRNS: Yes, I do. 9 MS. LINDA ROTHSTEIN: Can you assist the 10 Commissioner as to how it came about that they came to 11 meet with you. 12 What was the concern they wanted to 13 address with you as opposed to the Crown attorney or the 14 police of someone else? 15 DR. JAMES CAIRNS: Just give me a 16 second. It was, to the best of my recollection, dealing 17 with the outstanding report of Dr. Smith. 18 MS. LINDA ROTHSTEIN: Yes. 19 DR. JAMES CAIRNS: And what could I 20 assist in getting that report. 21 MS. LINDA ROTHSTEIN: So help us with 22 that. We know that there had been a exhumation; there 23 had been another report; a post-mortem done by Dr. 24 Chiasson; there had been another report by Dr. Wood. 25 Why, to the best of your recollection, was
181 there going to be another report from Dr. Smith, in these 2 circumstances? 3 DR. JAMES CAIRNS: Dr. Smith had 4 indicated that his first report -- that he wanted to, 5 obviously, change that report in light of the exhumation. 6 And before finalizing that -- his report in that regard, 7 he wanted to have the input of both Dr. Chiasson's report 8 and Dr. Wood's report. 9 MS. LINDA ROTHSTEIN: All right. Well, 10 we know that the second autopsy was actually per -- 11 performed on July 13th, 1999, and we know that Dr. Wood's 12 report was prepared in September of 1999, and I believe 13 that Dr. Chiasson's report was also prepared fairly early 14 on. 15 So we're now in February of 2000, and 16 there's still no report from Dr. Smith. Can you assist 17 us as to why it had taken so long? 18 DR. JAMES CAIRNS: I'm also reading Mrs. 19 -- at the top of page 111, which is a continuation of 20 paragraph 257. 21 MS. LINDA ROTHSTEIN: Mm-hm. 22 DR. JAMES CAIRNS: And it says there: 23 "To date, I am aware that this report 24 has not been written, although it is 25 not clear to me why it has not been
191 done. I've been told indirectly -- 2 indirectly that Dr. Smith says he is 3 waiting on the photographs and has been 4 playing phone tag with the Crown 5 attorney, although I have no personal 6 confirmation of this." 7 MS. LINDA ROTHSTEIN: Right. So you had 8 not been involved in trying to encourage Dr. Smith to get 9 his report prepared in a more timely way? 10 DR. JAMES CAIRNS: I had had nothing to 11 do with preparing his report, to the best of my 12 recollection, until I got the request to meet with the 13 attorneys. 14 MS. LINDA ROTHSTEIN: And did it strike 15 you as unduly long, the period of time in which -- sorry, 16 badly put, but did it strike you that this report from 17 Dr. Smith ought to have been forthcoming sooner? 18 DR. JAMES CAIRNS: Given the 19 significance of this case, I would have anticipated that 20 once Dr. Smith had Dr. Chiasson's report and Dr. Wood's 21 report that he'd be in a position to complete that 22 report. 23 MS. LINDA ROTHSTEIN: Right. We know 24 that in this period of time there was also some 25 difficulties obtaining an addendum to a report that was
201 required in the Kporwodu case. And, indeed, we know that 2 ultimately Dr. Smith prepared an addendum to that report 3 on April the 10th of 2000 in response, again, to a 4 summons. 5 Had that come to your attention, as at 6 that stage? 7 DR. JAMES CAIRNS: No. The first time I 8 was aware of that was, I think, during the actual trial. 9 I don't think it was during the preliminary hearing. I 10 think it was during the trial when I heard evidence of 11 Detective Matt Crone in the efforts he had to go to to 12 get that. 13 MS. LINDA ROTHSTEIN: All right. And 14 just to complete that point, Commissioner, you'll note 15 that, indeed, Dr. Smith prepared his report on February 16 the 14th of 2000, shortly after that meeting between Dr. 17 Cairns and counsel for the defence. 18 Did you have anything to do with that? 19 DR. JAMES CAIRNS: I would have made a 20 phone call to him, yes. 21 COMMISSIONER STEPHEN GOUDGE: Can I just 22 ask, Dr. Cairns, did any -- and you say you became 23 involved when the Crown -- or when it was brought to your 24 attention at the meeting with the lawyers that we talked 25 about in paragraph 257, in the Sharon, and then the
211 summons in the Kporwodu case doesn't come to your 2 attention until trial. 3 Does any of that have to do with Dr. Smith 4 working at Sick Kids as opposed to right under your nose, 5 in effect? 6 DR. JAMES CAIRNS: There were different 7 geographical, but it really didn't. I mean, I was one 8 (1) of the few people, that if I called Dr. Smith, he 9 would return my calls. So it wasn't, Well he won't 10 return my calls, so I should -- better walk down the 11 corridor and get him. 12 So obviously I think the closer you are, 13 the better. And in some ways there were discussions 14 about the pediatric forensic rounds that were being held, 15 that perhaps they should be held at the Chief Coroner's 16 Office so there will be a closer liaison between the off- 17 site Sick Kids and the Office of the Chief Coroner. 18 But I have to admit that I was one (1) of 19 the few people who didn't have difficulty in contacting 20 Dr. Smith, so that if I wanted to contact him with this, 21 it wouldn't be that I'd have to walk over, I would get a 22 reply from him. 23 COMMISSIONER STEPHEN GOUDGE: Yes. I 24 guess I'm trying to understand why it is that in these 25 two (2) cases as examples, it takes so long for these
221 delay problems to be brought to your attention, in 2 effect? 3 DR. JAMES CAIRNS: That's a good 4 question. The people who obviously would be looking for 5 these would be the Crown and -- 6 COMMISSIONER STEPHEN GOUDGE: They would 7 go right to Dr. Smith, I assume? 8 DR. JAMES CAIRNS: -- defence. And 9 normally what would happen, the police officers who were 10 working on the case would go directly to Dr. Smith or the 11 Crown would go directly to Dr. Smith. And by and large, 12 it's only when those routes failed that they might say, 13 Hey, can you get involved? 14 But it would not be my regular job to be 15 following up on when his reports were -- were available. 16 COMMISSIONER STEPHEN GOUDGE: Right. And 17 there was no protocol in your office for tracking the 18 timeliness of the reports of the pathologists that were 19 issuing post-mortem reports -- 20 DR. JAMES CAIRNS: If there was, that 21 would have been primarily the responsibility of our Chief 22 Forensic Pathologist, Dr. Chiasson. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. JAMES CAIRNS: Because I do know 25 that he was putting out memos in terms of an orderly
231 preparing of reports, and was attempting to track what 2 reports were beyond what was a reasonable time. 3 So that would have been one (1) of his 4 functions on quality control in pathology. 5 COMMISSIONER STEPHEN GOUDGE: Thanks. 6 Thanks, Ms. Rothstein. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Commissioner. I'd 10 like to direct your attention to the time line then, on 11 page 8, Dr. Cairns. June 27th, 2000 is recorded as the 12 first meeting of the SIDS/SUDS Committee, which was the 13 pre-cursor of the Death Under Two Committee. 14 Tell us about that? How did that come 15 about? What were you hoping to achieve by creating that 16 Committee? 17 DR. JAMES CAIRNS: I'll have to give you 18 a little bit of historical background to put it in 19 context. The Paediatric Death Review Committee, which 20 we've already talked about, had been formed in 1989, and 21 through the '90's it had expanded. And once we put out 22 the protocol for the investigation of death under two 23 (2), we were getting additional cases sent to us. 24 And then in the mid '90's, our office did 25 a number of systemic inquests relating to child abuse as
241 it related to Children's Aid Societies. There was a 2 report put out in 1996 called the Joint Mortality Task 3 Force; that was done by -- jointly by the Ontario 4 Association of Children's Aid Societies and myself. 5 There was a press conference to make 6 public the results of -- of that report. And at that 7 time in answer to questions from the audience, et cetera, 8 and as a result of the Task Force report, I made the 9 decision, quite arbitrarily at the time, that I felt that 10 every child who died when being monitored by a children's 11 aid society, would be reported to our office. Those who 12 were dying of natural causes would not have been reported 13 to our office before that. 14 So I indicated that they were all to be 15 reported to the coroner. And in addition to that, that 16 all of those cases would then be referred to the 17 Paediatric Death Review Committee. 18 And since at that time the Paediatric 19 Death Review Committee was purely a medical committee, 20 that we would add additional experts to the committee who 21 would have expertise in child welfare so that they would 22 be -- the committee would be a multi-discipline 23 committee. So, we added at that time a number of child 24 welfare experts, we added a Crown attorney, and we added 25 a police officer.
251 And therefore, the committee was now 2 looking after these additional cases. It was a situation 3 that, unfortunately, Commissioner, is all too common in 4 government. If you wait until you get the funds, you'll 5 be waiting until hell freezes over, so we made the 6 decision to go ahead with it. 7 The point is, we were going ahead with it 8 with no resources and we were finding we were getting 9 backlogged because it basically was myself and my 10 secretary. The members of the committee were also 11 getting concerned in that they did not feel they were 12 doing them in a timely way and they felt that if this 13 continued the value of these was going to become less. 14 With that in mind, I talked to Dr. Young 15 and indicated that this committee, now -- the workload -- 16 it really needed additional resources and to the extent 17 that if we didn't get those resources, we felt we'd have 18 to close down the committee. 19 Dr. Young was fo -- successful in 20 obtaining an executive officer in the na -- in the name 21 of Jeff Mainland to assist with that committee. Once 22 Jeff came onto the committee, we were then better able to 23 deal with the Children's Aid issues and the medical 24 cases. And he had enough time that we then thought in 25 addition to those we have been having this protocol for
261 the investigation of deaths under two (2). 2 But it wasn't being monitored closely and, 3 therefore, was felt now that we have the additional 4 resources, we should start a -- a committee that was 5 initially called the SIDS subcommittee. It very quickly 6 became the Death Under Two Committee. 7 And it was the intention that every -- 8 every child under the age of two (2) that died, no matter 9 what the cause, that this committee, which was made up of 10 pediatric forensic pathologists, and coroners, and police 11 officers, that they would review every case to determine 12 if that central committee agreed, number one (1), with 13 the cause of death, and secondly, did we agree with the 14 manner of death that had been -- that had been re -- 15 recorded by the Regional Coroner. 16 And that was the purpose of that 17 committee, to meet and say do we agree, do we not agree, 18 like in the -- in those cases as a work up to the 19 committee, each of the pathologists, and at that time Dr. 20 Smith was on the committee, and Dr. Pollanen was on the 21 committee, and I think Dr. Chiasson was on the committee, 22 they'd each be given a case to review and then come to 23 the committee and say whether they felt there were 24 issues. 25 One (1) of the police officers that was
271 assigned to our office, Commissioner -- we have a number 2 of OPP officers seconded to our office and one (1) Peel 3 Regional police officer seconded to our office. 4 Their primary function is to be the 5 investigators in inquests where police were involved and 6 we needed a different police department. But they had 7 additional time and bo -- both their departments were 8 very interested in those officers learning more about 9 children's death investigations, so they would take it on 10 themselves to contact whatever police department had been 11 involved in the death. 12 So at the end of each case we'd say, Yes, 13 we agree or disagree with the cause of death and, yes, we 14 agree or disagree with the by what means. And it was 15 decided that that determination at that central committee 16 would override any -- any co -- any decision that may 17 have been made by the local pathologist or the -- or the 18 local or regional coroner, so that's how that came in -- 19 into being. 20 MS. LINDA ROTHSTEIN: Okay, you've told 21 us an awful lot, so let's see if we can go back over that 22 and -- and try and underline some of the -- some of the 23 essential points that you've made, Dr. Cairns. 24 Do I hear you to say that there was an 25 increasing concern as a result of those inquests that the
281 Coroner's Office, among others, had to do more to 2 communicate to the public about the seriousness of child 3 abuse in the community and the potential pervasive -- 4 pervasive is too big a word, but the -- the increasing 5 incidents of that in the community? 6 DR. JAMES CAIRNS: It wasn't so much in 7 the community; it was once we had started our protocol 8 for Death Under Two, once we started to keep the 9 statistics, we were surprised that the number of children 10 who were dying while they were being monitored by 11 Children's Aid Society. And at that time also surprised 12 at the number of murders that were occurring in children 13 who were being monitored. 14 So the focus of that joint mortality task 15 force was, what was happening to children when they were 16 being monitored by a children's aid society. So the 17 focus when we brought all these extra cases was we felt 18 we needed to have much closer scrutiny of the role that 19 children's aid societies were playing in deaths of 20 children. 21 MS. LINDA ROTHSTEIN: So you needed to -- 22 COMMISSIONER STEPHEN GOUDGE: Put a time 23 frame on that for me, approximately. 24 DR. JAMES CAIRNS: It -- the Joint 25 Mortality Task Force came out in 1996 and between 1996
291 and 1998 -- roughly 1998, we did six (6) systemic 2 inquests all addressing children who had died while they 3 were being supervised by Children's Aid Society. 4 COMMISSIONER STEPHEN GOUDGE: And when -- 5 when did you expand the Paediatric Death Review 6 Committee? 7 DR. JAMES CAIRNS: In 1996. 8 9 CONTINUED BY MS. LINDA ROTHSTEIN: 10 MS. LINDA ROTHSTEIN: And so, Dr. Cairns, 11 what I hear you to be saying is you needed to bring 12 together in a more systematic way the information that 13 resided in various children's aid societies about 14 potentially abusive parents with the information that was 15 available to the Death Investigation Team. 16 That was one (1) of the things you wanted 17 to do? 18 DR. JAMES CAIRNS: That's correct. 19 MS. LINDA ROTHSTEIN: I understand that 20 you also wanted to ensure that these cases were fully and 21 thoroughly investigated in accordance with the protocols 22 that you'd created? 23 DR. JAMES CAIRNS: That's correct. And 24 then the third thing we were doing, we generally at this 25 stage were reviewing the actions of the Children's Aid
301 Society to see what role, if any, the actions or 2 inactions of the Children's Aid Society had played a role 3 in the death, and then be making recommendations back to 4 the children's aid societies because we felt that they 5 had at that time a lot to learn about issues that were 6 occurring. 7 MS. LINDA ROTHSTEIN: And can I just walk 8 through with you the membership or the composition of 9 that first SIDS/SUD Committee in June 2000. 10 You were its Chair? 11 DR. JAMES CAIRNS: That's correct. 12 MS. LINDA ROTHSTEIN: Dr. David Chiasson 13 was on that committee? 14 DR. JAMES CAIRNS: Correct. 15 MS. LINDA ROTHSTEIN: Dr. Michael 16 Pollanen was on that committee? 17 DR. JAMES CAIRNS: Correct. 18 MS. LINDA ROTHSTEIN: He was at that 19 stage working for the OCCO on what basis, do you recall? 20 DR. JAMES CAIRNS: To the best of my 21 recollection, he was working on a fee-for-service basis. 22 MS. LINDA ROTHSTEIN: Dr. Bill Lucas, a 23 very experienced coroner? 24 DR. JAMES CAIRNS: That's correct. 25 MS. LINDA ROTHSTEIN: Detective Constable
311 Joe Pallini (phonetic)? 2 DR. JAMES CAIRNS: He was a Peel 3 Regional police officer who had been seconded to our 4 office. 5 MS. LINDA ROTHSTEIN: Detective Constable 6 Mark Johnston (phonetic)? 7 DR. JAMES CAIRNS: From the OPP. 8 MS. LINDA ROTHSTEIN: Jeff Mainland 9 (phonetic), who you have spoken of? Yes? 10 DR. JAMES CAIRNS: He was the -- he was 11 the Executive Officer and the -- the secretary and 12 basically the person who would coordinate all these cases 13 and made sure they were sent out to the reviewers and 14 would be responsible for organizing the Committee and 15 doing all the -- all the hard work that had to be done in 16 preparation for the meetings. 17 MS. LINDA ROTHSTEIN: And finally, Dr. 18 Charles Smith was included on that Committee. 19 DR. JAMES CAIRNS: That's correct. 20 MS. LINDA ROTHSTEIN: Did you support 21 that decision? 22 DR. JAMES CAIRNS: Yes I did. 23 MS. LINDA ROTHSTEIN: Why was that? 24 DR. JAMES CAIRNS: Why was that? 25 Because he was an expert in pediatrics and he had been
321 one (1) of the originals in writing the -- the protocol 2 for the Death Under Five and I felt his being on that 3 committee would be helpful. 4 MS. LINDA ROTHSTEIN: And you weren't 5 concerned in June of 2000 that the experiences you'd had 6 thus far with Dr. Smith created some concern about the 7 appropriateness of his inclusion on that committee? 8 DR. JAMES CAIRNS: I didn't for the 9 reason that Dr. Pollanen and Dr. Chiasson were on the 10 committee. I would agree with you had it only been Dr. 11 Smith that was going to be on the Committee we may have 12 had to re-think that. But I was satisfied that there was 13 a proper balance there in terms of any concerns of 14 whether Dr. Smith's opinion was at deviance to other 15 people's. 16 MS. LINDA ROTHSTEIN: And then by October 17 of 2000, the first minutes are October 10th of 2000, the 18 Committee changes its name to "The Death Under Two 19 Committee," is that right? 20 DR. JAMES CAIRNS: That's correct. 21 MS. LINDA ROTHSTEIN: And -- 22 COMMISSIONER STEPHEN GOUDGE: Sorry. 23 When is that name changed? 24 MS. LINDA ROTHSTEIN: October the 10th, 25 2000.
331 COMMISSIONER STEPHEN GOUDGE: Thanks. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: Help us understand, 5 Dr. Cairns, whether that was just a name change or a 6 change in the mandate of the Committee. 7 DR. JAMES CAIRNS: No, it was just a 8 name change. And I think the name change was clearly 9 going to reflect more easily to all the coroners this is 10 a committee that investigates the deaths of all children 11 under two (2), as opposed to some confusion if it was a 12 SID or SUD, was that only under age one (1). So it 13 clarified what cases we wanted sent to us. 14 MS. LINDA ROTHSTEIN: So, again, the 15 members of that committee were Dr. Chiasson, Dr. Smith, 16 Dr. Pollanen, Joe Paolini, Mark Johnston and then I have 17 us -- on our list, Detective Sergeant Don Beckett 18 (phonetic). 19 DR. JAMES CAIRNS: He was another OPP 20 officer who was seconded to our office. 21 MS. LINDA ROTHSTEIN: All right. And 22 Jeff Mainland and, again, you were the Chair? 23 DR. JAMES CAIRNS: That's correct. 24 MS. LINDA ROTHSTEIN: And how frequently 25 did that committee meet?
341 DR. JAMES CAIRNS: That committee met -- 2 the pediatric review committee met every month. This one 3 (1) met approximately every three (3) months. 4 MS. LINDA ROTHSTEIN: And was Dr. Smith a 5 regular attender at that Committee? 6 DR. JAMES CAIRNS: Yes, he was. 7 MS. LINDA ROTHSTEIN: That takes us to 8 2001, and as you know, Dr. Cairns, there are a number of 9 events that take place in January of that year, that 10 precipitate Dr. Smith's letter to Dr. Young, dated 11 January 25th, 2001, which is at Tab 1 of Volume IV for 12 you, sir. And that's 127457. 13 Did you see that letter at the time, Dr. 14 Cairns? Have you got that? 15 COMMISSIONER STEPHEN GOUDGE: It's a 16 white bound volume. That's it. 17 DR. JAMES CAIRNS: Thank you, 18 Commissioner. Yes, I did see that letter. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: All right. Were 22 you involved in any discussions with Dr. Smith that 23 immediately preceded that letter? 24 DR. JAMES CAIRNS: My recollection is 25 that Dr. Young and I were both probably involved with
351 discussions with Dr. Smith before receiving this letter? 2 MS. LINDA ROTHSTEIN: Was it one (1) 3 meeting, more then one (1) meeting? 4 DR. JAMES CAIRNS: That -- 5 MS. LINDA ROTHSTEIN: Can you help us 6 with that? 7 DR. JAMES CAIRNS: I can't help you with 8 that. 9 MS. LINDA ROTHSTEIN: Okay. Well tell us 10 to your best recollection of the discussions you had with 11 Dr. Smith and Dr. Young immediately before receiving this 12 letter? 13 DR. JAMES CAIRNS: In -- in the one (1) 14 week there had been two (2) cases withdrawn and one (1) 15 was Sharon. 16 MS. LINDA ROTHSTEIN: Yeah. And the 17 other was the mother of Tyrell. There was a case against 18 her. She was -- 19 DR. JAMES CAIRNS: The mother -- 20 MS. LINDA ROTHSTEIN: -- actually not the 21 mother, the caregiver, excuse me. Thank you, everyone. 22 DR. JAMES CAIRNS: Caregiver of Tyrell. 23 And they had both come out within a day or two (2) of 24 each other, and naturally there was tremendous media 25 attention to those.
361 Neither Dr. Young or I were surprised that 2 the Sharon arrangement was made -- that was obviously 3 one, as we've discussed earlier, could have been made by 4 the end of 1999. But the other one, the Tyrell Case, was 5 not one that we knew about at all. 6 And that heightened the issue in the 7 public about what's Dr. Smith doing. So we had a 8 discussion with Dr. Smith about that. He -- 9 MS. LINDA ROTHSTEIN: Tell us about that, 10 please? 11 DR. JAMES CAIRNS: Well I mean, listen 12 here, you know, how much more heat of this nature can -- 13 can we take? What are we going to have to do about this, 14 in terms of we are -- are you going to resign? Are we 15 going to have to consider withdrawing your privileges? 16 Along those lines. 17 And within a day Dr. Smith asked for time 18 to consider it, and he wrote the letter to Dr. Young 19 saying that he wished to be removed from doing 20 medicolegal autopsies, and he would like an external 21 review of his work. 22 MS. LINDA ROTHSTEIN: Are you saying -- 23 COMMISSIONER STEPHEN GOUDGE: Now what 24 did you mean resign? Resign as head of the -- as 25 Director of the --
371 DR. JAMES CAIRNS: Sorry. Resign from 2 doing medicolegal autopsies. 3 COMMISSIONER STEPHEN GOUDGE: I see. Or 4 withdraw his privileges? What did you mean -- 5 DR. JAMES CAIRNS: Or in other words 6 say, we're take -- we're taking you -- we are taking 7 you -- 8 COMMISSIONER STEPHEN GOUDGE: We are not 9 sending you any more autopsies? 10 DR. JAMES CAIRNS: We're going to say 11 that you are not allowed to do anymore autopsies. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. JAMES CAIRNS: Yes, Commissioner. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Are you suggesting, 17 Dr. Cairns, that you and Dr. Young invited Dr. Smith to, 18 as he put it, excuse him from the performance of 19 medicolegal autopsies, or was it really his idea? 20 DR. JAMES CAIRNS: I would say there was 21 discussion where he was invited. I would -- my 22 recollection is that yes, he would be invited -- that 23 there's an invitation, and in the event that you don't 24 want to take up that invitation, then we'll have to 25 consider other options.
381 MS. LINDA ROTHSTEIN: All right. And 2 were those options actually clearly spelled out, or was 3 it left for further discussion? 4 DR. JAMES CAIRNS: I -- I had the 5 feeling that -- that the discussion was understood. 6 MS. LINDA ROTHSTEIN: All right. As far 7 as we can tell, there was a public announcement to that 8 effect by -- 9 COMMISSIONER STEPHEN GOUDGE: Just before 10 you go into that, can I just ask, Dr. Cairns: At that 11 point was your concern the publicity, the adverse 12 publicity, or had you started to develop your own 13 concerns about Dr. Smith's pathology skills? 14 DR. JAMES CAIRNS: On that particular 15 time, Commissioner, I was aware, and I just want to make 16 sure I don't use a surname, I was aware of the Amber 17 case. 18 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 19 DR. JAMES CAIRNS: I was aware of the 20 Jenna case. 21 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 22 DR. JAMES CAIRNS: And I was aware of 23 the Gagnon case. And I was aware of the Reynolds case. 24 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 25 DR. JAMES CAIRNS: And, having been
391 aware of those for some time, I had still not lost faith 2 in Dr. Smith. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. JAMES CAIRNS: When the Tyrell case 5 came out, I knew absolutely nothing about it, so whether 6 it was going to be the case that was so horrendous, I -- 7 I did not know. But, certainly, the -- the public 8 scrutiny was such that something had to be done, 9 irrespective of, whether I had lost faith or not. 10 COMMISSIONER STEPHEN GOUDGE: Had you 11 lost faith? 12 DR. JAMES CAIRNS: At that time, no, I 13 hadn't. 14 COMMISSIONER STEPHEN GOUDGE: So -- okay. 15 Thank you. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: And just to go back 19 to Dr. Smith's letter of January 25th for a moment, Dr. 20 Cairns, at Tab 1; he asked to be excused from the 21 performance of medicolegal autopsies. 22 That would be all work for the Coroner's 23 Office, correct? 24 DR. JAMES CAIRNS: That would be 25 correct.
401 MS. LINDA ROTHSTEIN: In your discussions 2 with him, were you suggesting that he ought to be 3 relieved from all work for the Coroner's Office, or just 4 in criminally suspicious cases? 5 DR. JAMES CAIRNS: No, this was going to 6 be all work. 7 MS. LINDA ROTHSTEIN: There are some 8 newspaper reports of Dr. Smith having made public the 9 fact that Dr. -- or, Dr. Young, excuse me, having made 10 public that Dr. Smith would no longer be engaged in 11 medicolegal autopsies for a period of time while there 12 was a review. And that the -- those newspaper reports 13 are dated January the 26th. 14 But we don't have a -- a press release as 15 such, Dr. Cairns. Were you ever involved in the way the 16 communication strategy for the OCCO worked? Can you 17 enlighten us at all as to whether it was customary to 18 issue a formal press release or you or Dr. Young would 19 just get on the phone with the media? 20 DR. JAMES CAIRNS: If -- if it was -- if 21 we wanted to announce something to the public, which was 22 not an issue that was in the eyes of the public, it would 23 be done, most likely, through a press release. 24 If it was something of an acute nature, 25 the media would be all over us. So, in those cases, it
411 might be that it -- it was just done by -- by talking 2 directly to the media. 3 So it -- it would vary, but in a situation 4 like this, I -- Dr. Young had the calls. But I -- I 5 think, in some ways, that would have been as effective as 6 not more effective. When we issue a press release, we 7 have to send it up to communications. They need it 8 translated into French, and by the time it's all done, 9 the issue can be on the backburner. 10 So, if it's an acute thing, we will often 11 just go ahead, particularly if the media are interested 12 and it'll get picked up. 13 MS. LINDA ROTHSTEIN: We know that on 14 that same day, January the 26th, there was a meeting held 15 at the Chief Coroner's office, and we have the notes of 16 Al O'Marra at the next document in your binder, Tab 2, 17 139736. 18 I appreciate, Dr. Cairns, that you didn't 19 write these notes and that, indeed, you may have trouble 20 reading them. 21 DR. JAMES CAIRNS: Actually, it looks 22 like I may have written them because this writing is as 23 bad as most doctor's writing. 24 MS. LINDA ROTHSTEIN: Can you just help 25 us with the initials as to who was in attendance. I take
421 it 'JC" refers to you, sir. 2 DR. JAMES CAIRNS: Yes. 3 MS. LINDA ROTHSTEIN: "BP" to Dr. Porter. 4 DR. JAMES CAIRNS: Yes. 5 MS. LINDA ROTHSTEIN: "DC" refers to...? 6 DR. JAMES CAIRNS: I would think it 7 would be David Chiasson. 8 MS. LINDA ROTHSTEIN: "Barry B" -- 9 DR. JAMES CAIRNS: Would be -- 10 MS. LINDA ROTHSTEIN: -- Barry 11 Blenkinsop? 12 DR. JAMES CAIRNS: That I -- that I 13 would doubt. It's possible, but I think Barry was off on 14 sick leave. But, I'll come back to that. 15 MS. LINDA ROTHSTEIN: "Barry McL" is 16 obviously Barry McLellan. 17 DR. JAMES CAIRNS: Yes. 18 MS. LINDA ROTHSTEIN: "AJCO" we know is 19 Al O'MARRA. "BL"...? 20 DR. JAMES CAIRNS: Bill Lucas. 21 MS. LINDA ROTHSTEIN: And "Jeff" is Jeff 22 Mainland? 23 DR. JAMES CAIRNS: Yes. 24 MS. LINDA ROTHSTEIN: Okay. 25 DR. JAMES CAIRNS: But that in mind,
431 that "Barry B" may be Barry Blenkinsop. 2 MS. LINDA ROTHSTEIN: There seems to be a 3 discussion about the two (2) cases -- Reynolds and the 4 Tyrell case. And then there's some discussion about a 5 review - External, US, England, Australia - to: Is he a 6 good forensic pathologist, is how I read it. 7 Can you assist us by looking that as to 8 what you recall about the review that was being discussed 9 at that meeting? 10 DR. JAMES CAIRNS: I mean, in general 11 terms, I think this was a meeting with everybody present. 12 If there was going to be an external review, what cases 13 should there be, and who should do the review; where 14 should we be going externally to have the review done. 15 And there was a feeling that most likely we would have to 16 go outside Canada. 17 COMMISSIONER STEPHEN GOUDGE: For the 18 same reason that you and I discussed yesterday? 19 DR. JAMES CAIRNS: Yes, Commissioner. 20 MS. LINDA ROTHSTEIN: Can we go -- 21 COMMISSIONER STEPHEN GOUDGE: I take it, 22 it was your view there was just nobody in Canada that 23 would be prepared to review him objectively? 24 DR. JAMES CAIRNS: I think that's a fair 25 statement, and in fact, I think it's probably borne out
441 by the only expert on the present review panel that we 2 could get in Canada -- was Dr. Butt. 3 4 CONTINUED BY MS. LINDA ROTHSTEIN: 5 MS. LINDA ROTHSTEIN: If we go down the 6 page to the query. As I read it: 7 "While voluntarily withdrawn from 8 medicolegal autopsies, does CS continue 9 as pathologist on Paediatric Death 10 Review Committee or consultations, re: 11 coroner's cases?" 12 So I take it, at the meeting there was 13 indeed some concrete discussion about whether, 14 notwithstanding Dr. Smith's agreement not to participate 15 in medicolegal autopsies, he ought to continue his 16 committee work? 17 DR. JAMES CAIRNS: There was discussion 18 about the committee work, and the Paediatric Death Review 19 Committee; the pathologist sitting on that committee 20 played a very, very minor role that everyone felt would 21 be easily handled by the other experts on the committee. 22 And as I think I've already mentioned to 23 you with the Death Under Two (2) Committee, there were 24 other forensic pathologists. So having had a discussion 25 regarding that, it was decided that he could stay on
451 those two (2) committees. 2 3 (BRIEF PAUSE) 4 5 MS. LINDA ROTHSTEIN: Dr. Cairns, do I 6 hear you to be suggesting that he wasn't really needed on 7 those committees? 8 DR. JAMES CAIRNS: He -- his -- he would 9 have a role, a limited role, on the Paediatric Death 10 Review Committee, in that most of those cases did not 11 involve pathology, but if pathology was an issue then we 12 would ask him questions. 13 But it was felt that with the -- with the 14 committee that those would -- would be controlled. And 15 with regard to the other committees, we felt that he 16 still have a useful role, but if there were any concerns 17 regarding an opinion that -- that was outside the others 18 that that would be tempered suf -- sufficiently by Dr. 19 Chiasson and Dr. Pollanen. 20 MS. LINDA ROTHSTEIN: Dr. Cairns, I won't 21 ask you to speak for the entire group -- it's large -- 22 but did you personally believe it would be unfair to 23 remove him from participation in those committees, at 24 that time? 25 DR. JAMES CAIRNS: I ca -- I think
461 probably, from my perspective, I would answer yes. 2 MS. LINDA ROTHSTEIN: And then there's 3 some discussion about medical cases and how they're going 4 to be dealt with, and what was the plan, as you recall? 5 If you go further down. I don't think there's anything 6 there to help us, but I take it there was some discussion 7 about how the medicolegal work for the coroner's office 8 was going to be done. Was there a plan? 9 DR. JAMES CAIRNS: There was obviously 10 discussion that since, at that particular time, there 11 were three (3) pathologists at Sick Kids who were doing 12 the work; Dr. Coutts (phonetic), Dr. Wilson, and Dr. 13 Smith, of which Dr. Smith was doing at least 50 percent 14 that, in the event, since he was stopping working, there 15 would have to be some interim plans put in. 16 Not only was Dr. Smith doing 50 percent of 17 the work, but he was, by in large, doing the criminally 18 suspicious and the homicides, as neither Dr. Coutts or 19 Dr. Wilson had expressed great interest in doing those 20 types of cases. So there's a two-fold problem. 21 First of all, the cases and, secondly, the 22 issue of the -- of the suspicious cases. I don't know if 23 in this meeting there was -- there was a relution û 24 solution, but it was an issue, obviously, that -- that 25 could be -- was se -- was seen to be -- going to be an
471 issue that had to be dealt with. 2 I don't know if it was dealt with at -- in 3 this meeting -- I -- I know later on, and perhaps you're 4 going to come to it -- there are some other notes that 5 indicate how that was going to be dealt with. 6 MS. LINDA ROTHSTEIN: So we know that Dr. 7 Young indeed announced a review on that same day, an 8 external review. 9 What was your understanding as to the 10 intended nature and scope of that review at that time? 11 DR. JAMES CAIRNS: That cases of his 12 would be taken and sent, and this was a first meeting, so 13 having been involved in the -- the review that Dr. 14 McLellan -- in the planning for that, even Dr. McLellan - 15 - review that day was just that there'll be a review, 16 but no parameters, no details, which we worked out at a 17 later time. 18 And the -- as far as this had got at that 19 time was, it would be an external review, so these cases 20 would be reviewed by one (1) or more external 21 pathologists who would be from outside Canada and that in 22 the interim period we would try and find a -- the cases 23 that we felt that should be sent out for review and we'd 24 make efforts to see who might be prepared to do the 25 review.
481 At that time it had not been worked out as 2 it were worked out, particularly by the pedi û by the 3 Forensic Advisory Committee in terms of what would be 4 sent out; would it just be the autopsy report, would it 5 be the autopsy report and the -- the histopathology, the 6 police report, the photographs, et cetera, et cetera, and 7 would it include a transcript of he -- of stuff in Court. 8 And those -- 9 MS. LINDA ROTHSTEIN: But let's -- let's 10 not get too far ahead of ourselves -- 11 DR. JAMES CAIRNS: Okay. 12 MS. LINDA ROTHSTEIN: -- Dr. Cairns; it's 13 -- it's -- it's a complex enough area. You agree, sir, 14 that you in fact have described the steps that the OCCO 15 took following Dr. Smith's letter in late January to 16 review his work during the Kporwodu and Veno criminal 17 proceedings? 18 DR. JAMES CAIRNS: Correct. 19 MS. LINDA ROTHSTEIN: You in fact 20 testified for the better part of five (5) days and swore 21 two (2) affidavits, do you recall that, sir? 22 DR. JAMES CAIRNS: Yes, I do. 23 MS. LINDA ROTHSTEIN: And I expect you 24 also recall that Justice Trafford and the Court of Appeal 25 both wrote lengthy judgments?
491 DR. JAMES CAIRNS: Sorry, in -- oh, 2 sorry, the -- 3 MS. LINDA ROTHSTEIN: Justice Trafford. 4 DR. JAMES CAIRNS: And the Court of -- 5 yes. 6 MS. LINDA ROTHSTEIN: And the Court of 7 Appeal. 8 DR. JAMES CAIRNS: I -- more, yes. 9 MS. LINDA ROTHSTEIN: Both wrote lengthy 10 judgments that addressed those matters. 11 DR. JAMES CAIRNS: Correct. 12 MS. LINDA ROTHSTEIN: First, with respect 13 to the Preliminary Inquiry that proceeded the trial 14 before Justice Trafford, do you recall, sir, that you in 15 fact were served with a summons on November the 9th of 16 2001 requiring you to attend Court on the 13th, very 17 shortly thereafter, and to bring with you any records 18 concerning the review of Dr. Smith's work. 19 You remember that? 20 DR. JAMES CAIRNS: Correct. 21 MS. LINDA ROTHSTEIN: And that you then 22 attended on November the 13th, 2001 at the Preliminary 23 Hearing and testified that a number of autopsies were 24 selected at random and sent out for independent review, 25 do you recall that?
501 DR. JAMES CAIRNS: Correct. 2 MS. LINDA ROTHSTEIN: You then indicated 3 that there were other documents at your office which you 4 had not been able to retrieve in preparation for Court 5 because you had only recently received that summons, is 6 that fair? 7 DR. JAMES CAIRNS: That's fair. 8 MS. LINDA ROTHSTEIN: And you in fact 9 required the documents to refresh your memory as to the 10 type of review performed, do you remember that? 11 DR. JAMES CAIRNS: I do. 12 MS. LINDA ROTHSTEIN: You advised the 13 Court it would take approximately one (1) week to locate 14 all those documents. 15 DR. JAMES CAIRNS: Correct. 16 MS. LINDA ROTHSTEIN: And the Preliminary 17 Hearing was adjourned therefore to November the 19th of 18 2001. Does that accord with your recollection, sir? 19 DR. JAMES CAIRNS: It does. 20 MS. LINDA ROTHSTEIN: Then on November 21 the 19th, 2001 you were recalled by the defence. 22 DR. JAMES CAIRNS: Correct. 23 MS. LINDA ROTHSTEIN: And on November the 24 20th you completed your evidence. 25 DR. JAMES CAIRNS: That's correct.
511 MS. LINDA ROTHSTEIN: And, Commissioner, 2 for your benefit, the documents that you will want to 3 review that speak to these issues are 052101, 052102, 4 021125, which is in Volume II, Tab 4 of your documents, 5 and 021218 at Volume III, Tab 5. 6 COMMISSIONER STEPHEN GOUDGE: Thank you. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Now, at the trial 10 before Justice Trafford you again were summoned to attend 11 before the Superior Court of Justice as part of an 12 application that was brought by the defence to obtain 13 third party records, do you recall that? 14 DR. JAMES CAIRNS: I do. 15 MS. LINDA ROTHSTEIN: And as part of that 16 application you swore two (2) affidavits? 17 DR. JAMES CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: And I believe, Dr. 19 Cairns, you've seen those in the document briefs. 20 Commissioner, you will find the October 23, 2002 21 affidavit of Dr. Cairns at Volume III, Tab 7. It's at 22 PFP number 031169. 23 And you will find Dr. Cairns November 24 20th, 2002 affidavit at Volume III, Tab 8. It's 134627. 25 And then as part of the application to obtain third party
521 records, you indeed testified on November the 28th, 2002, 2 and November 29th, 2002, is that correct? 3 DR. JAMES CAIRNS: That's correct. 4 MS. LINDA ROTHSTEIN: Commissioner, 5 reference to that can be found at 023389 and 023573. On 6 June 23rd of 2003, Justice Trafford granted the request 7 to stay the proceedings on the ground of unreasonable 8 delay. 9 You and I touched on that yesterday, Dr. 10 Cairns, as you'll recall? 11 DR. JAMES CAIRNS: Yes. 12 MS. LINDA ROTHSTEIN: But with respect to 13 your evidence, sir, Justice Trafford concluded at 14 paragraph 277 -- Commissioner, you'll find this in Volume 15 III, Tab 9. I'm going to quote it for you, Dr. Cairns. 16 "Dr. Cairns testified at the 17 preliminary hearing in response to a 18 defence subpoena. There were no notes, 19 memoranda, files or formal reports kept 20 by him or anyone else during the 21 review, that could be used to refresh 22 his memory. Consequently, while Dr. 23 Cairns testified in good faith, and did 24 not intend to mislead the court, some 25 of the evidence he gave was
531 significantly incorrect and misled 2 inter alia the defence". 3 Dr. Cairns, do you agree that that's a 4 fair characterization of your evidence? 5 DR. JAMES CAIRNS: Since those hearings 6 I've had an opportunity to read my preliminary inquiry 7 evidence and my trial evidence. And having done that, I 8 agree entirely with what Justice Trafford has said. 9 MS. LINDA ROTHSTEIN: And in particular, 10 sir, your evidence suggested that the so-called internal 11 review was much more thorough and rigorous then it, 12 indeed, was? 13 DR. JAMES CAIRNS: That is correct. 14 MS. LINDA ROTHSTEIN: And the chart that 15 is found as Exhibit E to your affidavit of October 23, 16 2002, which, Commissioner, is at PFP031169, at 56. 17 Inaccurately -- 18 DR. JAMES CAIRNS: Could I -- could I 19 just ask one (1) -- 20 MS. LINDA ROTHSTEIN: Yes. 21 DR. JAMES CAIRNS: -- thing in terms of 22 that I was saying that the report was much more detailed 23 then it was -- 24 MS. LINDA ROTHSTEIN: The review. 25 DR. JAMES CAIRNS: I wasn't saying that.
541 But the way that the evidence came out, I did not clearly 2 -- there were -- there were some difficulties in -- in 3 both the preliminary hearing, Mr. Commissioner, in that 4 they were trying to bring in an O'Connor application 5 during the preliminary hearing. 6 So the Crown was wanting me to say nothing 7 and the defence were wanting me to say everything, and 8 the Judge was trying to -- to say, just keep it there. 9 The same was happening in the trial. 10 So therefore, the evidence of the witness 11 was continuously being confused as to what you couldn't 12 say. So therefore, I agree having read both transcripts 13 that my evidence, although not done deliberately, was 14 confusing and I can see why there was this talk of a 15 review. 16 And I think that with -- with 17 justification, that the defence thought this was a -- a 18 high power review with minutes and all the rest were 19 taken. And while I was saying it wasn't, I think because 20 of the way the evidence came out, they felt I was trying 21 to conceal that there had been a substantive review which 22 I was not forthcoming. 23 And I think a lot of that was as a result 24 of the words reviewed, and the way the evidence comes 25 out. So, I agree, I've looked at it, and it was
551 extremely confusing. It was extremely confusing to even 2 myself, so I can understand how it would be extremely 3 confusing to anyone else. 4 MS. LINDA ROTHSTEIN: And it had a 5 misleading effect, regrettably? 6 DR. JAMES CAIRNS: Yes, it had a mis -- 7 regretingly it has a misteady û misleading effect, yes. 8 MS. LINDA ROTHSTEIN: And just to go back 9 to the specific point that I was making with you, sir, 10 which was the chart, you'll recall that chart that was 11 attached to your October 23rd, 2002 affidavit, that 12 inaccurately described the level of agreement of other 13 experts with Dr. Smith's conclusions, is that fair? 14 DR. JAMES CAIRNS: That's fair. 15 MS. LINDA ROTHSTEIN: So -- so let's now 16 review, if we can, what steps the OCCO did in fact to 17 identify the cases that involved Dr. Smith in an effort 18 to move forward with the review of his work in January of 19 2001. 20 Am I correct that there were a number of 21 routes that were pursued more or less simultaneously? 22 DR. JAMES CAIRNS: Can I just ask you 23 before we start, because I do not want this as -- to be 24 as confusing as it was at the trial, are we talking at 25 this stage about the external review that Dr. -- Dr.
561 Young has indicated? 2 MS. LINDA ROTHSTEIN: Well, even before 3 that. I want to -- I -- what I thought I would do, Dr. 4 Cairns, is start with the first point, which was how were 5 you even going to identify the cases that involved Dr. 6 Smith, and help the Commissioner with that. 7 You didn't have any ready available 8 electronic database that you could punch in Dr. Smith and 9 turn up all of the cases that he had done over the years, 10 isn't that fair? 11 DR. JAMES CAIRNS: We could punch in, 12 and from 1986 it would tell us what case he did. We 13 would then have to pull the file and the file would have 14 given us his autopsy report, a police report, but it 15 would not in most of the cases have indicated whether 16 this case went to trial and what was the results of that. 17 MS. LINDA ROTHSTEIN: But didn't the 18 problem go beyond that, Dr. Cairns, in that while you may 19 have had a record of the files that he did under warrant, 20 you didn't have a record of any of the consultations that 21 he had done? 22 DR. JAMES CAIRNS: We would have had no 23 record at all of any consultations that he had done. 24 MS. LINDA ROTHSTEIN: All right. So am I 25 correct that one (1) of the first steps that was taken
571 was that Mr. Mainland was tasked with searching the OCCO 2 computer files? 3 DR. JAMES CAIRNS: Yeah, Mr. Mainland 4 will say have a go at it and see what you can get from 5 both the fa -- that and from the cases that we -- we know 6 about because we've been doing something about them, 7 that's correct. 8 MS. LINDA ROTHSTEIN: And I understand 9 that in addition to that, sir, you arranged to meet with 10 Detective Smith and John McMahon, as he then was, who was 11 the Toronto Regional Director of Crown operations, to ask 12 them to assist you in identifying cases in which Dr. 13 Smith was involved. 14 DR. JAMES CAIRNS: And what started 15 first was that Jeff Mainland was to look through our 16 files. The following Thursday -- it was my custom on a 17 Thursday to attend the Toronto homicide meeting where 18 they discussed homicides from the previous week -- and I 19 indicated to them at that time that they had obviously 20 heard about Dr. Smith stopping doing cases and the fear 21 that was going around Dr. Smith and could they help us, 22 number 1, in any cases they may know of that are at some 23 stage still before the Courts and could they help us in 24 their memory of cases that Dr. Smith had been involved 25 in.
581 And Detective Smith was at that meeting, 2 and subsequent to that we asked to meet with John McMahon 3 as the Regional Director of Crown Attorneys, to say to 4 him, can you assist us; if you know of any of your Crown 5 attorneys, first of all, who may have a case right now 6 that is going through the Courts in some way that we 7 don't know about, we'd like to know about that so that we 8 could include that in -- in a review. 9 He agreed to do that and he also agreed 10 that he would email the other Crown attorneys across the 11 Province, giving them the information that the Chief 12 Coroner's Office want to know are there any cases before 13 the Court regarding Dr. Smith and would you please let 14 the Chief Coroner's Office know so they can review those 15 cases. 16 MS. LINDA ROTHSTEIN: Was there any 17 formal agenda for that meeting with da -- with Mr. 18 McMahon? 19 DR. JAMES CAIRNS: There was no formal 20 agenda. We phoned him up and said, John, can we come and 21 meet with you, it's as simple as that. 22 MS. LINDA ROTHSTEIN: The records 23 indicate that occurred on January the 31st of 2001, does 24 that accord with your recollection? 25 DR. JAMES CAIRNS: It does.
591 MS. LINDA ROTHSTEIN: All right. Was the 2 purpose also to advise Mr. McMahon that Dr. Smith would 3 not be performing any future post-mortems in -- in cases 4 for some time. 5 DR. JAMES CAIRNS: My recollection -- 6 but I stand to be corrected -- was he was aware of that 7 from the public announcement. But, if he wasn't, then it 8 -- it was indicated to him that he was -- he was -- he 9 had asked to be taken off the rota, and he would not be 10 doing any medicolegal autopsies until the external report 11 had been completed. 12 MS. LINDA ROTHSTEIN: Right. Well, not 13 to quarrel with you about words too much, Dr. Cairns, 14 but, to be fair, there wasn't a formal public 15 announcement as such. There was a newspaper report of 16 it. And the one (1) we have; it's one (1) line at the 17 bottom. 18 DR. JAMES CAIRNS: And that's why I'm -- 19 I'm agreeing with you, and I can't even remember the date 20 of that. And that is to the best of my scanning, I can 21 only find it in -- in one (1) isolated new -- report. 22 So would -- would the general public -- 23 would, in fact, most people be aware of it? No, you're 24 quite right. 25 MS. LINDA ROTHSTEIN: So, indeed, if we
601 were to hear from Justice McMahon that he doesn't know 2 anything about it until the meeting, you wouldn't quarrel 3 with that? 4 DR. JAMES CAIRNS: I would accept that 5 entirely. 6 MS. LINDA ROTHSTEIN: So that was done. 7 And then I understand that that search, in fact, 8 produced, well, some correspondence from Mr. McMahon's 9 office, in particular, from Cheryl Blondell (phonetic) 10 who was counsel. 11 If you look at Volume 4, Tab 7, 115202, on 12 April the 11th, 2001; letter addressed to you, sir, at 13 the request of John McMahon, Director of Crown 14 Operations: 15 "I am now forwarding the attached chart 16 information to you and apologize for 17 the delay. I was awaiting further 18 information regarding the inquest that 19 Dr. Smith had been involved in. If 20 additional information is required, 21 please do not hesitate to contact me." 22 And then, at the second page of that 23 document, 115203, there is a list -- a two (2) sided list 24 of nineteen (19) cases, some of which are -- some of 25 which even go beyond criminal cases altogether.
611 I look at Number 11, Dr. Cairns, and note 2 that it's a medical negligence inquest and a civil suit. 3 DR. JAMES CAIRNS: That's correct. 4 MS. LINDA ROTHSTEIN: So, is it fair to 5 infer from the -- from this document that you had made a 6 fairly wide-ranging request of John McMahon to determine 7 any cases of any nature or kind in which Dr. Smith had 8 given testimony or been a key participant? 9 DR. JAMES CAIRNS: It was primarily 10 focused on criminal cases. But, obviously, the Crowns 11 would be aware of -- if he had testified at inquests that 12 where -- where it was felt there was an issue, correct. 13 MS. LINDA ROTHSTEIN: All right. So that 14 was, as I understand it, the -- the search part of the 15 process that was undertaken post-January, 2001. 16 If we turn now to your question, the 17 reviews and which one, let's -- let's limit ourselves, 18 for the moment, to the internal review; that is to say, 19 the review that was done by persons inside the Office of 20 the OCCO, okay? 21 DR. JAMES CAIRNS: Just before we go 22 there, I may stand to be corrected, but I think Detective 23 Tony Smith (phonetic) also gave us some cases. 24 MS. LINDA ROTHSTEIN: You are right. 25 That's quite so, indeed, Commissioner. I -- I did,
621 unfortunately, not mention that. You will find reference 2 to his document at Volume 4, Tab 5, 115195 and 115196. I 3 don't think we need to turn it up, Dr. Cairns. 4 DR. JAMES CAIRNS: No. 5 MS. LINDA ROTHSTEIN: We have your point. 6 We can focus, then, on the internal review. Am I right, 7 Dr. Cairns, that it consisted of, sort of, two (2) parts? 8 If the file contained forensic pathology, and 9 particularly a forensic pathology case review form signed 10 by Dr. David Chiasson, then the file was, in fact, deemed 11 to have passed an internal review, albeit one that was, 12 at this stage, historical. 13 Is that fair? 14 DR. JAMES CAIRNS: That's fair. 15 MS. LINDA ROTHSTEIN: And if the file did 16 not contain a forensic pathology case review form, either 17 because it was not a criminally suspicious case or a 18 homicide case or because Dr. Smith had not sent the file 19 to Dr. Chiasson to review, then either you, Dr. McLellan 20 or Dr. Chiasson may have conducted a paper review of the 21 file to determine if it revealed a significant error? 22 DR. JAMES CAIRNS: That's correct. 23 MS. LINDA ROTHSTEIN: And for the non- 24 criminal files, your office wasn't involved in doing any 25 internal review, is that also fair?
631 DR. JAMES CAIRNS: That's fair. 2 MS. LINDA ROTHSTEIN: And am I right from 3 reading your testimony and indeed the testimony of Drs. 4 McLellan and Chiasson, during the Kporwodu proceedings 5 that there were no notes or reports generated about this 6 internal review? 7 DR. JAMES CAIRNS: That is correct. Any 8 notes, notations, or whatever would have been in the 9 individual case file, but there would be no running tally 10 notes of how many we've done in the summary of them, 11 correct. 12 MS. LINDA ROTHSTEIN: There might be a 13 checkmark placed on the file? 14 DR. JAMES CAIRNS: Correct. 15 MS. LINDA ROTHSTEIN: Or there might be 16 simply an oral report to you of some kind? 17 DR. JAMES CAIRNS: That is correct. 18 MS. LINDA ROTHSTEIN: And these files 19 were not segregated after they were reviewed? 20 DR. JAMES CAIRNS: They were not. 21 MS. LINDA ROTHSTEIN: They were returned 22 to wherever they had previously been stored, if I 23 understand it? 24 DR. JAMES CAIRNS: That's correct. 25 MS. LINDA ROTHSTEIN: Now, with respect
641 to the external reviews -- 2 COMMISSIONER STEPHEN GOUDGE: Sorry, what 3 time frame was the internal review conducted over? 4 DR. JAMES CAIRNS: It was conducted 5 between the end of January and approximately the 6 beginning of June. 7 COMMISSIONER STEPHEN GOUDGE: And how 8 many cases? Or would you know? 9 DR. JAMES CAIRNS: Yes, there were 10 twenty-four (24) cases, which subsequently was reduced to 11 twenty-three (23) because one (1) of the cases was done 12 in error. Dr. Smith had not done the autopsy. His name 13 had appeared, and I made the mistake of thinking he'd 14 done the autopsy. 15 He had -- he had commented on the case at 16 the Paediatric Death Review Committee. So there were a 17 total of twenty (20) ca -- three (3) cases in one way or 18 another that were looked at. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: And then the 22 external reviews, let's go through the manner in which 23 that was done. There were case-by-case external reviews 24 that were requested by the Crown or defence counsel where 25 the cases were ongoing. For example, in the Kporwodu
651 case itself there was eventually a second opinion sought, 2 in that case. 3 DR. JAMES CAIRNS: At the time of the 4 preliminary hearing, I was aware that the Crown had 5 sought a second opinion with the agreement of the 6 defence, and the only stipulation was that I was not 7 allowed to know the results of that review. 8 MS. LINDA ROTHSTEIN: Right. And indeed 9 Dr. McLellan sought external reviews of the Jenna case 10 fairly early on in 2001, you remember that? 11 DR. JAMES CAIRNS: In the Jenna case, 12 once we were aware of the issues we had many meetings, 13 and yes, he was tasked with finding the appropriate 14 external reviewer. 15 MS. LINDA ROTHSTEIN: There were a few 16 others in that category, fair? 17 DR. JAMES CAIRNS: There were, yes. 18 MS. LINDA ROTHSTEIN: Then there was 19 something that's come to be known by those who spent time 20 pouring over this material, as the Blair Carpenter 21 (phonetic) review; you're familiar with that? 22 DR. JAMES CAIRNS: Yes, I am. 23 MS. LINDA ROTHSTEIN: All right. And as 24 I understand it, there is no doubt that that was 25 commenced in June 2001?
661 DR. JAMES CAIRNS: That's correct, the 2 beginning of June, yes. 3 MS. LINDA ROTHSTEIN: And, Commissioner, 4 I anticipate that we will hear considerably more about 5 this from Dr. Chiasson because it was Dr. Chiasson who 6 was responsible for writing to Dr. Carpenter and setting 7 up that -- the review which he undertook, is that fair? 8 DR. JAMES CAIRNS: That's correct. 9 COMMISSIONER STEPHEN GOUDGE: Give me 10 that date again? 11 MS. LINDA ROTHSTEIN: It was in June -- 12 actually, June the 1st of 2001, -- 13 COMMISSIONER STEPHEN GOUDGE: Thank you. 14 MS. LINDA ROTHSTEIN: -- I believe, is 15 Dr. Chiasson's letter to Dr. Car -- Carpenter. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: And -- but just to 19 give the Commissioner a basic understanding, at this 20 stage, Dr. Cairns, am I correct that this was a review of 21 six (6) of Dr. Smith's non-medical legal files? Or 22 sorry, I put that wrong. This was -- sorry, every time 23 one does this, it ge -- it's -- it's hard to do it. 24 This was a review of Dr. Smith's non- 25 criminally suspicious or homicide cases?
671 DR. JAMES CAIRNS: That's correct. 2 MS. LINDA ROTHSTEIN: Okay. And indeed 3 it was undertaken for the purpose of determining whether 4 or not Dr. Smith could per -- resume work at the Hospital 5 for Sick Children on coroner's cases that were not 6 criminally suspicious or homicide cases? 7 DR. JAMES CAIRNS: That's correct. 8 MS. LINDA ROTHSTEIN: This review 9 involved sending Dr. Carpenter the reports of post-mortem 10 examination, as well as the histological and photographic 11 material? 12 DR. JAMES CAIRNS: Yes. 13 MS. LINDA ROTHSTEIN: And then I 14 understand that some thought was given to doing an 15 external review of Sharon's case, but then Dr. Young 16 brought the continuation of any further external reviews 17 to an end? 18 DR. JAMES CAIRNS: I understand that 19 differently, but all I could say is, is that in the 20 Sharon case, I would have considered there already had 21 been the most ultimate external review, insofar as there 22 had been an exhumation with all sorts of external 23 reviewers there. 24 So this may be a little bit of play on 25 words. But that certainly would not be a case that I
681 would say would be needing an external review. I think 2 that had -- had already taken place. 3 MS. LINDA ROTHSTEIN: Okay. Fair enough. 4 So let me -- let me ask you this, sir. By the end of May 5 of 2001, Dr. Young announced that the external review 6 process was being put on hold. Do you remember that? 7 DR. JAMES CAIRNS: At some stage he 8 announced it was being put on hold. I'm not sure of the 9 date. 10 MS. LINDA ROTHSTEIN: Okay. Were you 11 involved in that decision or not? 12 DR. JAMES CAIRNS: No, I was not. While 13 we were compiling the types of cases that may be suitable 14 to be sent out for external review as a result of Jeff 15 Mainland looking through our files, our talks with John 16 McMahon, and the detectives -- while we were in the 17 process of still gathering those before the review, Dr. 18 Young indicated to me that, as a result of legal advice 19 he had obtained, we were to stop -- we were not going to 20 carry out an external review. 21 MS. LINDA ROTHSTEIN: And do you know 22 anything more about it then you've just told us? 23 DR. JAMES CAIRNS: That is it. Since 24 there were civil litigation cases out -- going on -- 25 outstanding, that his legal advice was we were not doing
691 an external review. 2 MS. LINDA ROTHSTEIN: And do you have any 3 knowledge as to what efforts were made to communicate 4 that fact to John McMahon, to other Crown attorneys, 5 police? Can you assist us with that? 6 DR. JAMES CAIRNS: I am not aware that 7 there was any efforts made to communicate that elsewhere. 8 With the exception, as you just mentioned, that at some 9 stage -- you're saying is towards the end of May -- he 10 mentioned that in a interview with a -- with a reporter. 11 COMMISSIONER STEPHEN GOUDGE: When did he 12 tell you? 13 DR. JAMES CAIRNS: Commissioner, to the 14 best of my recollection, it would have been sometime, I 15 think, in February, end of February, beginning of March. 16 It was of a time where we were gathering -- still 17 gathering the -- these files. 18 But there had been no -- we'd had no 19 further meetings in terms of these files are now going to 20 be going to an external reviewer; we've got the external 21 reviewer, what are we going to send? 22 So my recollection is it was reasonably 23 early on, within approximately at month to six (6) weeks 24 of the time he'd announced an external review. 25 COMMISSIONER STEPHEN GOUDGE: So February
701 or March of 2000? 2 DR. JAMES CAIRNS: 2001. 3 COMMISSIONER STEPHEN GOUDGE: 2001. 4 MS. LINDA ROTHSTEIN: 2001. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 DR. JAMES CAIRNS: To the best of my 7 recollection. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 Thanks. 10 11 CONTINUED BY MS. LINDA ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: We know, Dr. 13 Cairns, that Dr. Carpenter completed his review in mid 14 June of 2001, and he favourably reviewed Dr. Smith's 15 work? 16 DR. JAMES CAIRNS: That's correct. 17 MS. LINDA ROTHSTEIN: He saw no concerns 18 about the quality of the pathology work that he reviewed? 19 DR. JAMES CAIRNS: That's correct. 20 MS. LINDA ROTHSTEIN: As a result of 21 that, was a further discussion had, internally at the 22 OCCO, with respect to whether Dr. Smith ought to be re- 23 instated to medicolegal autopsies, provided they were not 24 criminally suspicious or homicide cases? 25 DR. JAMES CAIRNS: Yes, there was.
711 MS. LINDA ROTHSTEIN: And, in fact, was 2 the decision made to re-instate Dr. Smith to coroner's 3 work provided it wasn't in criminally suspicious or 4 homicide cases? 5 DR. JAMES CAIRNS: That was made. There 6 had been increasing workload at the Hospital for Sick 7 Kids that the pathologists there said they were having 8 difficulty coping with it. And they were interested if 9 there was any way Dr. Smith could come back to assist. 10 And once we had the Dr. Carpenter review, 11 we felt that those type of cases -- he could go back and 12 do those only. So he was allowed to go back and do 13 hospital type medicolegal cases. 14 MS. LINDA ROTHSTEIN: And between the 15 outset of this, end of January of 2001, and the results 16 of the Carpenter Review (phonetic) becoming known in 17 June, had you continued to have conversations with Dr. 18 Smith? 19 DR. JAMES CAIRNS: I honestly can't 20 answer one (1) way what -- in -- in either direction. 21 MS. LINDA ROTHSTEIN: You don't remember 22 him wanting to speak to you about the Review, about when 23 it would be done, about when it would be over, about 24 whether or not he could be reinstated, about whether he 25 wanted to be reinstated?
721 You can't assist us with any of that, Dr. 2 Cairns? 3 DR. JAMES CAIRNS: I can't. I do not 4 have specific recall. He may well have done but as I sit 5 here today, I -- I can't. Now I would not be surprised, 6 for the sake of argument, if Dr. Smith said, They did 7 talk to me about it, I'm not going to object to it, but I 8 just don't have recall of specific conversations while 9 that was going on. 10 MS. LINDA ROTHSTEIN: Well, do you 11 remember whether or not he wanted to be reinstated to 12 coroner's work? 13 DR. JAMES CAIRNS: My recollection is 14 yes, he was interested in being reinstated to coroner's 15 work. 16 MS. LINDA ROTHSTEIN: And was he seeking 17 your support in that? 18 DR. JAMES CAIRNS: He probably was 19 seeking my support in that. 20 MS. LINDA ROTHSTEIN: Did you support him 21 in that? 22 DR. JAMES CAIRNS: The support to hi -- 23 to continue doing the non-criminal. 24 Once we had the report from Dr. Carpenter 25 then I supported in the discussions: Should we allow him
731 to go back and do the cases or not. I supported -- in 2 light of Dr. Carpenter's review, I supported him being 3 allowed to go back and do non-suspicious, non-criminal 4 cases. 5 MS. LINDA ROTHSTEIN: All right. Now I 6 want to -- 7 COMMISSIONER STEPHEN GOUDGE: It is 8 10:50, Ms. Rothstein. 9 MS. LINDA ROTHSTEIN: Oh. 10 COMMISSIONER STEPHEN GOUDGE: Do you want 11 to -- when do we break? Well, I guess we do not break 12 until 11:15, sorry. 13 MS. LINDA ROTHSTEIN: I -- I think that's 14 right. 15 COMMISSIONER STEPHEN GOUDGE: Yeah. 16 Sure. 17 MS. LINDA ROTHSTEIN: Okay. Did you want 18 a break, Commissioner? 19 COMMISSIONER STEPHEN GOUDGE: No. No, I 20 am fine. I do not know why I had it in my head, but. 21 MS. LINDA ROTHSTEIN: I can take a hint. 22 COMMISSIONER STEPHEN GOUDGE: Yes -- No. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: All right. If we
741 can try and move forward in that year then. 2 There were some additional developments in 3 Jenna's case in 2001, Dr. Cairns, in which you were 4 involved, arising from the reinvestigat û reinvestigation 5 of that case that was undertaken by Detective Constable 6 Charmley. He began in July of 2001, a fairly thorough 7 reinvestigation of that death. 8 And we know that if you go to your 9 overview report for Jenna's case which you will find at 10 Tab 7 of Volume I and it's 144684. 11 DR. JAMES CAIRNS: I have that. 12 MS. LINDA ROTHSTEIN: And I would be 13 grateful if you would turn to paragraph 124. It's at 14 page 71. It's entitled "Part 8: Detective Constable 15 Charmley and the Continuing Police Investigation." 16 DR. JAMES CAIRNS: Yes. 17 MS. LINDA ROTHSTEIN: Now you became re- 18 involved in that case, but just to help refresh your 19 memory Dr. Cairns, from my review of the overview report 20 there was a period from about May or June of 1999 through 21 to the summer of 2001 when Dr. Porter appears, at least 22 from our database and the records we've reviewed, to have 23 been dealing with the case on behalf of the OCCO. So 24 it's after the criminal proceedings against Ms. Waudby 25 came to an end and during the CAS proceedings and
751 thereafter. 2 Can you assist us as to why that file, in 3 effect, got transferred from you to Dr. Porter? 4 DR. JAMES CAIRNS: Following the 5 preliminary hearing and Jenna's mother was sent for 6 trial, some disclosure was given by the defence to the 7 Crown with regard to the timing of death and there were 8 some discussions between the Crown and our office as a 9 result of which he dropped the charges and there was 10 going to be a need for further experts. 11 And around that time was when I went off 12 on sick leave, and when I was off on sick leave it looks 13 like -- I know that Dr. Porter took over the Paediatric 14 Death Review Committee in my absence, and it appears that 15 the file -- it was passed over to her. 16 MS. LINDA ROTHSTEIN: All right, that's 17 helpful. In any event, you wouldn't have known this 18 quite at the time, but it would appear that in the summer 19 of 2001, Detective Constable Charmley met with Ms. 20 Waudby's counsel, Mr. Hauraney. 21 And Mr. Hauraney told Detective Constable 22 Charmley that there was a hair that had been noted -- 23 you'll see this in paragraph 128, Dr. Cairns and 24 Commissioner -- there was a hair that had been noted in 25 Jenna's vaginal area by Dr. Friesen (phonetic) that was
761 missing, and Detective Constable Charmley began to follow 2 up that issue. 3 And our overview report records that, in 4 fact, you first got re-involved then in August 2001 when 5 you responded to a letter from the CPSO with respect to 6 Ms. Waudby's complaint -- that's by-the-by for the moment 7 -- but by October 2001, if you turn to paragraph 132 at 8 page 72 -- 9 DR. JAMES CAIRNS: I've got that. 10 MS. LINDA ROTHSTEIN: -- Detective 11 Constable Charmley who was following up on the issue of 12 the hair received a message in response to his inquiries 13 from Dr. Smith: 14 "According to Detective Constable 15 Charmley, he asked Dr. Smith about the 16 hair found in Jenna's vagina. Dr. 17 Smith advised that he did recall this 18 and that he had seized the hair. 19 He described it as a fibre that the 20 police did not feel was pertinent to 21 seize, so he kept it in his files. He 22 believed he still had this item. Dr. 23 Smith advised that he was surprised the 24 police relied so heavily on the medical 25 evidence when it would be the police
771 investigation that would solve the 2 case. 3 Dr. Smith advised he was upset when he 4 learned that it was reported that there 5 was a change in medical opinion. He 6 indicated that he was working with 7 different information than those who 8 reviewed the entire case. 9 He explained that his area of expertise 10 was in the post-mortem body and not the 11 living child. He still stood behind 12 his extended time lines of when Jenna 13 could possibly have received her 14 injuries, but felt that the police 15 should not have relied so heavily on 16 his opinion, given other evidence of 17 Jenna's behaviour prior to her death. 18 He also stated that he had a child 19 abuse expert examine Jenna and that he 20 was satisfied that there was no 21 evidence of sexual assault. Detective 22 Constable Charmley asked Dr. Smith if 23 he could retrieve the hair and advised 24 that it would seized as evidence." 25 And we know that, in fact, at paragraph
781 135 Dr. -- Mr. Mainland made some inquiries on behalf of 2 the OCCO about that issue of the hair. 3 Were you involved in instructing Mr. 4 Mainland to make those inquiries of Dr. Smith? 5 DR. JAMES CAIRNS: Yes, I was. 6 MS. LINDA ROTHSTEIN: All right. And so 7 when we get to paragraph 135, on November the 6th, 2001, 8 Dr. Smith sent an email to Mr. Mainland at 7:40 stating: 9 "Yes, I have the fibre. I spoke with a 10 member of the Durham Regional Police 11 several weeks ago. We agreed that I 12 would keep the fibre until they checked 13 on what should be done with it. The 14 author I spoke with was going to speak 15 with his colleagues, and if 16 appropriate, speak with someone from 17 the hair fibre section of the CFS. I 18 haven't spoken with anyone since then 19 so until I received your message I was 20 not aware of what was happening. In 21 fact, I don't even know the name of the 22 police officers in charge of the 23 investigation, but he seemed pretty 24 clueless. He wanted Bonnie Porter to 25 get all the Crown and defence experts
791 together in a meeting and have them all 2 agree on the case. In reference to the 3 fibre, I am not sure that I will be 4 able to do anything about this this 5 week as I am tied up in Court." 6 And then he goes on to mention the 7 Kporwodu matter. It would appear from paragraph 137 that 8 on November 8th, Detective Constable Charmley spoke with 9 Mr. Mainland who confirmed that Dr. Smith had located the 10 fibre from Jenna and Dr. -- or excuse me, Detective 11 Constable Charmley then arranged with Dr. Smith to attend 12 at his office and retrieve the hair. 13 And by this stage, did you realize from 14 Mr. Mainland that that was going on? 15 DR. JAMES CAIRNS: I realized that Dr. 16 Smith had the hair, and Dr. Smith said that he would 17 bring the hair over to the Centre of Forensic Science or 18 to our office. And I indicated, No, you won't. I will 19 have Detective Charmley come to your office and pick it 20 up. 21 MS. LINDA ROTHSTEIN: The way you've just 22 put that, Dr. Cairns, suggests that you had a direct 23 conversation with Dr. Smith about that, did you? 24 DR. JAMES CAIRNS: No, I had a direct 25 conversation with -- with Jeff Mainland saying, No, don't
801 tell him to bring it over. I had direct conversation 2 with -- with Detective Charmley saying, I want you to go 3 and get this hair. Although the continuity of evidence 4 has been broken, let's not have it go through anymore 5 individuals than is essential. 6 MS. LINDA ROTHSTEIN: Okay. So indeed we 7 know, paragraph 138: 8 "...that on November 15th, 2001, 9 Detective Constable Charmley attended 10 at Dr. Smith's office and was give a 11 sealed white envelope with the words, 12 "hair from pubic area" written on the 13 outside. 14 There was a seal on the envelope that 15 indicated the contents were seized from 16 Jenna's autopsy. The seal number on 17 the envelope was later proven to be 18 sequential to others used during the 19 autopsy. The next day, Detective 20 Constable Charmley opened the envelope 21 and confirmed it appeared to be a dark 22 hair with a slight curl." 23 And then over the page, it would appear 24 that you are brought into a meeting with Detective 25 Constable Charmley on December the 5th, 2001 -- I'm at
811 paragraph 141, Dr. Cairns. 2 DR. JAMES CAIRNS: I'm there, yes. 3 MS. LINDA ROTHSTEIN: Page 77? 4 DR. JAMES CAIRNS: Yes. 5 MS. LINDA ROTHSTEIN: "On December 5th, 6 2001, Detective Constable Charmley and 7 Staff Sergeant Tucker met with Dr. Cairns 8 and Mr. Mainland at the OCCO. They 9 discussed the medical opinions on the 10 evidence pointing to both Ms. Waudby and 11 JD. It was decided that outside experts 12 would be retained to review other injuries 13 to Jenna; and a clinician retained to 14 compare Jenna's injuries with her 15 behaviour." 16 Now, as at that stage, Dr. Cairns, had you 17 picked up the phone and called Dr. Smith about the hair? 18 DR. JAMES CAIRNS: To the best of my 19 knowledge, I had not spoken to Dr. Smith about the hair. 20 MS. LINDA ROTHSTEIN: We know that the 21 media, in fact, learned about the hair recovered from Dr. 22 Smith on February the 14th of 2002. You'll see that at 23 paragraph 147. 24 And do you remember that making its way 25 out into the public?
821 DR. JAMES CAIRNS: I do. 2 MS. LINDA ROTHSTEIN: And why do you 3 remember that, Dr. Cairns? 4 DR. JAMES CAIRNS: I remember it being 5 in the -- in the media and the -- obviously, the rumpus 6 that's caused being in the media. 7 MS. LINDA ROTHSTEIN: And did it cause 8 not only a rumpus in the media, to use your language, but 9 some concern on the part of Dr. Smith or his spouse? 10 DR. JAMES CAIRNS: Whether it was that 11 day, but certainly following that, yes, it did cause 12 concern, I think, primarily perhaps, of Dr. Smith's wife 13 and also Dr. Smith. 14 MS. LINDA ROTHSTEIN: How do you know 15 that? 16 DR. JAMES CAIRNS: I can't give you the 17 date, but I did get a phone call from Dr. Smith's wife 18 objecting that the Office of the Chief Coroner -- myself 19 in particular -- were not supporting Dr. Smith. She felt 20 that that was unfair, and we should be supporting him. 21 MS. LINDA ROTHSTEIN: Okay. Stopping 22 there for a moment. Dr. Smith's wife was a coroner? 23 DR. JAMES CAIRNS: That's correct. 24 MS. LINDA ROTHSTEIN: You knew her as a 25 result of her status as a coroner?
831 DR. JAMES CAIRNS: I knew her as a 2 coroner, yes. 3 MS. LINDA ROTHSTEIN: Did you have a 4 social relationship with Dr. Smith and his wife? 5 DR. JAMES CAIRNS: I had no social 6 relationship with either of them. I met -- I knew Dr. 7 Smith, pure and simply, through work. 8 MS. LINDA ROTHSTEIN: And can you give us 9 your best recollection of what it was that Dr. Smith's 10 wife, Karen, said to you in that phone conversation? 11 DR. JAMES CAIRNS: Basically that she 12 did not feel the Office of the Chief Coroner and myself 13 were giving Charles the proper support he needed, as a 14 result of the furor in the media. 15 MS. LINDA ROTHSTEIN: And what, if 16 anything, did you say to her in return, Dr. Cairns? 17 DR. JAMES CAIRNS: I said, I am more 18 than willing to meet with you and Dr. Smith, at a time of 19 your convenience, in my office to discuss that further. 20 MS. LINDA ROTHSTEIN: All right. And 21 you've told us that you can't pinpoint the date of the 22 call, but you remember it, do you, being after the media 23 first went public with the information about the hair? 24 DR. JAMES CAIRNS: It was after the 25 media went public, and it was before Jeff Mainland left
841 the Chief Coroner's Office to go to government. 2 MS. LINDA ROTHSTEIN: All right. And so 3 the best you can do, as I understand it, is place that 4 call somewhere between February 5th, 2002 and? 5 DR. JAMES CAIRNS: And April I think, 6 2002. 7 MS. LINDA ROTHSTEIN: Mid April of 2002? 8 DR. JAMES CAIRNS: Yes, somewhere in 9 that range. 10 MR. BRIAN GOVER: I think it's the 14th 11 actually, as opposed to the 5th. 12 MS. LINDA ROTHSTEIN: Did I say the 5th? 13 I'm -- I thought I said the 15th. All right. Thank you 14 very much. I meant the 14th. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: And indeed the 18 meeting, how long after your telephone call with Dr. 19 Smith, being Dr. Charles Smith's wife, was your meeting 20 with him and her? 21 DR. JAMES CAIRNS: I can't give you an 22 exact interval, but it -- it would have been within a 23 reasonable length of time. It may have been a week, it 24 may have been ten (10) days. It probably was more 25 organized depending, since she was a practising
851 physician, on people's schedules. 2 MS. LINDA ROTHSTEIN: Do you remember 3 what time of day it was? 4 DR. JAMES CAIRNS: It was the afternoon. 5 MS. LINDA ROTHSTEIN: It was at your 6 office, sir? 7 DR. JAMES CAIRNS: It was in my office. 8 MS. LINDA ROTHSTEIN: Did you make any 9 notes? 10 DR. JAMES CAIRNS: I made no notes. 11 MS. LINDA ROTHSTEIN: How clear is your 12 recollection of that meeting? 13 DR. JAMES CAIRNS: My recollection is 14 very clear of that meeting, and I have confirmed my 15 recollection of the meeting with that of Jeff Mainland's 16 recollection of the meeting, and our -- our recollections 17 coincide. 18 MS. LINDA ROTHSTEIN: Oh, sorry, I didn't 19 understand. Was Mr. Mainland also in attendance at that 20 meeting? 21 DR. JAMES CAIRNS: Mr. Mainland was at 22 that meeting, yes. 23 MS. LINDA ROTHSTEIN: All right. It's 24 helpful to know. And you since being asked to recall 25 this, had a conversation with Mr. Mainland about that
861 meeting? Is this recently? 2 DR. JAMES CAIRNS: Yeah, well yes, 3 certainly in -- in preparation for -- for testimony I had 4 a mee -- I've had a number of meetings with him, but in 5 preparation of this, I had a meeting with him. 6 And then in addition in terms of the 7 recall of my memory, and you'll probably come to it, but 8 you have shown me, a day or two (2) ago a document that 9 was contemporaneous at that time, which seems to reflect 10 the same recording -- the same recollection of the 11 meeting as I have now. 12 MS. LINDA ROTHSTEIN: All right. So 13 let's go through it. Just based on your recollection, 14 Dr. Cairns, refreshed by all of that, who did the 15 talking? Was it Dr. Karen Smith, is her last name Smith 16 by the way? 17 DR. JAMES CAIRNS: Her last name is 18 Smith also. 19 MS. LINDA ROTHSTEIN: All right. So was 20 it Dr. Karen Smith or Dr. Charles Smith, both of them? 21 DR. JAMES CAIRNS: It probably was 22 primarily myself with -- with them answering questions 23 that I put to them. 24 MS. LINDA ROTHSTEIN: All right. So how 25 did the meeting begin, what did you say to them?
871 DR. JAMES CAIRNS: The meeting began 2 with -- and this isn't verbatim, but we're very upset 3 that you're not supporting Charles, and why aren't you 4 supporting me. And I said, well Charles, the information 5 I have at this time, is at the time you did the original 6 on -- autopsy on Jenna, that -- information now that you 7 discovered a hair or a fibre or some object of that 8 nature in the vaginal area of Jenna. 9 And you have indicated and have confirmed 10 with the police that you took that hair or fibre, and 11 their police identification officer refused to take that 12 from you. I said, I find that a preposterous 13 proposition. I just cannot understand that at all. The 14 identification officer is from Peterborough, so it's not 15 -- he's not the number one (1) Forensic IDENT Officer in 16 the world, and my -- it always has been my -- my belief - 17 - it's -- well, I've seen in action is if a pathologist 18 asks an IDENT officer to take a specimen, they take it. 19 So I -- I just am having great difficulty 20 with the statement that he refused to take it. And if he 21 refused to take it for some bizarre reason, I would have 22 thought, given your experience, that you would have been 23 immediately on the phone to his superior or immediately 24 on the phone to Dr. Chiasson, or myself saying, What do I 25 do, I've got someone here who -- who will not take --
881 take a specimen. 2 And he said, Well no, he refused to take 3 it, so I kept it. And I said, Well that's an extremely 4 serious issue. Where do you have it in your report, your 5 autopsy report that that occurred? 6 He said, It's not in my autopsy report. I 7 said, Do you have rough notes that indicate that? He 8 said, No, I have no rough notes. So therefore in turn, I 9 said, Do you not feel that the critical situation at that 10 -- and I've got great difficulty with the fact that -- 11 that you're telling me he wouldn't take it, but would 12 that not cause you to put a huge note in massive letters 13 and highlighted to -- to that effect? 14 And yet you're telling me -- well I looked 15 at your autopsy report, which I had done, I can see no 16 reference to it at all, and I'm asking you about rough 17 notes, because I do realize that sometimes pathologists 18 will have rough notes and -- now, even if it had been in 19 rough notes, it would have been such a significant issue 20 I would have expected it to be transcribed into the 21 report, and I was told, No, I don't have rough notes. 22 MS. LINDA ROTHSTEIN: How long was the 23 meeting? 24 DR. JAMES CAIRNS: Oh, the meeting 25 probably was two (2), two and a half (2 1/2) hours and it
891 went on then -- I said, Well, Dr. Smith, I've read the 2 transcript of your evidence at the preliminary hearing, 3 and in fact during that evidence you were asked, and this 4 may not be verbatim, Were you aware that the night before 5 when Jenna was taken to hospital in Peterborough that the 6 Emergency physician, and I think the nurse, both were 7 concerned that Jenna may have been sexually assaulted and 8 they both have documented they thought there was a pubic 9 hair in the vaginal region. 10 And you were asked by counsel, I think it 11 was the Crown, if you had known that would that have made 12 a difference to your examination the next day. And the 13 answer was, Yes, it -- it would. And I said, Well, 14 Charles, how can say that in light -- at that time? 15 And then he said, Well, actually, not only 16 did I keep -- did I keep the hair, but I had it in an 17 envelope in my jacket pocket at the preliminary hearing. 18 So this is getting stranger and stranger. You admit that 19 nobody would take it, you had it, and when I read your 20 evidence, if I accept that nobody wanted this hair, when 21 you are asked that direct question about do you know that 22 the Emerg physician saw this hair and would that have 23 helped, I'm sorry, to me that would be a crying out help: 24 Here I have it; the hair is here. And you didn't do it - 25 - to which there was no answer.
901 MS. LINDA ROTHSTEIN: So how did you feel 2 about all of this, Dr. Cairns? 3 DR. JAMES CAIRNS: I probably was 4 feeling the same way as many people in this room who 5 haven't heard this before was feeling; I just couldn't 6 understand it. There was then some further discussion 7 that he thought Dirk Huyer was at the autopsy with him. 8 And I said, Well, where is that in your 9 report? It's not in the report. Where is that in your 10 rough notes? I don't have rough notes. So I was having 11 difficulty with that, as well. 12 I know Dirk Huyer; he's on the SCAN Team. 13 He -- also on the SCAN Team does do a lot of work with 14 sexual assaults or potential sexual assaults. And I know 15 that the sexual assault kits that are used that it is 16 paramount that you collect everything, whether it becomes 17 of evidentiary value or not later is a different issue. 18 So if I find it incredulous that Dr. Smith wouldn't do 19 it, I find it even more incredulous that Dr. Huyer would 20 not have -- would -- would not have ta -- taken the hair. 21 And in addition, if you find a hair there, 22 that would mandate -- and I think I've just -- I've 23 talked to this with many other people. So I -- I -- I 24 used to do sexual assault examinations when I was in the 25 -- Emerg physician.
911 But if there's any doubt, it would also 2 include the necessity to do rectal swabs, vaginal swabs, 3 mouth swabs, the whole sex kit caboodle, which was not 4 done, and therefore, it con -- it -- it seemed to 5 reinforce in my mind that Dr. Huyer had not been there. 6 MS. LINDA ROTHSTEIN: Did you believe any 7 aspect of Dr. Smith's description of the events? 8 DR. JAMES CAIRNS: Sadly, I did not. 9 MS. LINDA ROTHSTEIN: And was this the 10 first occasion in your relationship with Dr. Smith where 11 you came to the conclusion that he ought not to be 12 believed? 13 DR. JAMES CAIRNS: That's correct. 14 MS. LINDA ROTHSTEIN: And what effect, if 15 any, did that have on your confidence in his work as a 16 forensic pathologist? 17 DR. JAMES CAIRNS: As a forensic 18 pathologist, I thought his time as a forensic pathologist 19 was gone. 20 MS. LINDA ROTHSTEIN: What did you do 21 about that? 22 DR. JAMES CAIRNS: He didn't do anymore 23 forensic pathology; he still continued doing the hospital 24 type. And there was a discussion about it with that -- 25 with everyone and everybody felt continued -- since he
921 was allowed to do hospital autopsies at Sick Kids, we 2 felt he could still do hospital type autopsies under a 3 coroner's warrant at Sick Kid. 4 MS. LINDA ROTHSTEIN: But help me with 5 this Dr. Cairns. As of April 2002, when you have this 6 very difficult conversation with Dr. Smith and his wife. 7 Dr. Smith has been removed indefinitely from doing 8 criminal suspicious and homicide cases. 9 Am I correct? 10 DR. JAMES CAIRNS: That's correct. 11 MS. LINDA ROTHSTEIN: And there was no 12 expectation that he was ever going to do them in the 13 future, am I correct? 14 DR. JAMES CAIRNS: That's correct. 15 MS. LINDA ROTHSTEIN: So what additional 16 steps were taken by you or anyone else as a result of the 17 concerns about Dr. Smith's integrity that you've told us 18 you had following this meeting? 19 DR. JAMES CAIRNS: He was only allowed 20 to do medical-type cases. 21 MS. LINDA ROTHSTEIN: That was the 22 situation before the meeting as well, sir. 23 DR. JAMES CAIRNS: That's correct. So 24 the type of case before the meeting and after the meeting 25 had not changed. I wouldn't say after the meeting
931 because obviously the content of the meeting was 2 discussed with other members of the Chief Coroner's 3 Office. 4 MS. LINDA ROTHSTEIN: You weren't alone 5 in this; you're making that clear? 6 DR. JAMES CAIRNS: I -- I made clear to 7 others the conversation that we had. 8 MS. LINDA ROTHSTEIN: Right. But he was 9 not removed from the PDRC? 10 DR. JAMES CAIRNS: He was not removed 11 from the PDRC. 12 MS. LINDA ROTHSTEIN: He was not removed 13 from the Death Under Two Committee? 14 DR. JAMES CAIRNS: He was not removed 15 from the Death Under Two Committee. 16 MS. LINDA ROTHSTEIN: He continued to do 17 coroner's cases albeit not criminally suspicious and 18 homicide cases? 19 DR. JAMES CAIRNS: That's correct. 20 MS. LINDA ROTHSTEIN: And he continued to 21 hold his title as the Director of Ontario's OPFPU? 22 DR. JAMES CAIRNS: That is correct. 23 MS. LINDA ROTHSTEIN: Nothing changed 24 after that meeting? 25 DR. JAMES CAIRNS: That is correct.
941 COMMISSIONER STEPHEN GOUDGE: Why not? 2 DR. JAMES CAIRNS: It's a very good 3 question, Commissioner. I -- I can only tell you what 4 did or didn't happen. 5 It was felt that he was already muzzled; 6 that he wasn't doing anything; that he was -- he was 7 competent to do hospital autopsies and the only type of 8 autopsies he would be doing would be hospital autopsies, 9 but they'd be under a coroner's warrant. So it was felt 10 he was strictly enough controlled that it was not going 11 to cause an issue. 12 In addition, at that time, and this may 13 have played some role in it, the whole issue about this 14 hair was very much involved in a highly significant 15 criminal investigation and more details about that hair 16 were going to have to be analyzed. So there was some 17 thought also of not wanting to have this in a public 18 forum until we also knew what was happening with the 19 investigation of -- of Jenna's death. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: So you were 23 concerned that taking further steps, at least publicly, 24 to restrict Dr. Smith's activities would play adversely 25 in the ongoing Jenna case.
951 Is that what you're saying, sir? 2 DR. JAMES CAIRNS: At that time, this 3 hair was having a major, major play-out in the 4 significance of the Jenna case, with many people saying 5 that if this had been given to the police at the first 6 autopsy that this whole issue would have been completely 7 resolved and that that hair would have solved the case, 8 period. 9 And so, we were focusing on going ahead 10 with that, and we did not want anything to be interfering 11 while that was ongoing. 12 MS. LINDA ROTHSTEIN: Dr. Cairns, you 13 just told the Commissioner that it was felt that you 14 could control the work of Dr. Smith in the non-criminally 15 con -- criminally suspicious cases. 16 My question for you, sir, is: How does 17 one control the work of someone whose integrity one 18 doubts? 19 DR. JAMES CAIRNS: Well, I think with 20 hindsight, you have got a very good question to which I 21 would accept. 22 MS. LINDA ROTHSTEIN: You accept that 23 it's very difficult to do? 24 DR. JAMES CAIRNS: Yes, I do. 25 MS. LINDA ROTHSTEIN: And that, indeed,
961 more was likely called for? 2 DR. JAMES CAIRNS: Yes. 3 MS. LINDA ROTHSTEIN: At that stage? 4 DR. JAMES CAIRNS: Yes, I agree. 5 MS. LINDA ROTHSTEIN: All right. 6 Commissioner, I think it is now time forû 7 COMMISSIONER STEPHEN GOUDGE: Thank you. 8 MS. LINDA ROTHSTEIN: -- our morning 9 break. 10 COMMISSIONER STEPHEN GOUDGE: Be back in 11 fifteen (15) minutes. 12 13 --- Upon recessing at 11:17 a.m. 14 --- Upon resuming at 11:35 a.m. 15 16 THE REGISTRAR: All rise. Please be 17 seated. 18 COMMISSIONER STEPHEN GOUDGE: Ms. 19 Rothstein...? 20 MS. LINDA ROTHSTEIN: Thank you very 21 much, Commissioner. 22 23 CONTINUED BY MS. LINDA ROTHSTEIN: 24 MS. LINDA ROTHSTEIN: Dr. Cairns. 25
971 (BRIEF PAUSE) 2 3 Dr. Cairns, did you tell others at the 4 OCCO about the conversation with Drs. Smith? 5 DR. JAMES CAIRNS: Yes, I did. 6 MS. LINDA ROTHSTEIN: Including Dr. 7 Young? 8 DR. JAMES CAIRNS: Yes. 9 MS. LINDA ROTHSTEIN: Was their reaction, 10 based on your telling, very similar to yours? 11 DR. JAMES CAIRNS: I think that's a fair 12 description. 13 MS. LINDA ROTHSTEIN: And I understand 14 that you also told the College of Physicians and Surgeons 15 about it on your own initiative. 16 DR. JAMES CAIRNS: Yes, I did. 17 MS. LINDA ROTHSTEIN: All right. Would 18 you turn up Tab number 31 of Volume IV, please? It's 19 145664. This is a memorandum to file prepared by the 20 Interim Registrar, Dr. John Carlisle, recording a 21 conversation that occurred the week before. So... 22 DR. JAMES CAIRNS: Sorry, this is tab, 23 please? 24 MS. LINDA ROTHSTEIN: Sorry. It's Tab 31 25 of Volume 4.
981 DR. JAMES CAIRNS: Thank you. 2 MS. LINDA ROTHSTEIN: Make sure you have 3 it. 4 DR. JAMES CAIRNS: I do. 5 MS. LINDA ROTHSTEIN: Dr. Cairns, I'm 6 wondering if, looking at this memorandum, we can first 7 agree that this conversation that you had with Dr. 8 Carlisle at the CPS -- CPSO occurred after your meeting 9 with Dr. Karen Smith and Dr. Charles Smith which you've 10 just described to the Commissioner. 11 DR. JAMES CAIRNS: That's correct. 12 MS. LINDA ROTHSTEIN: All right. So can 13 we agree, then, that the window of time in which that 14 conversation occurred was between February the 14th and 15 sometime prior to April the 10th of 2002? 16 DR. JAMES CAIRNS: I would agree. 17 MS. LINDA ROTHSTEIN: All right. It 18 records: 19 "Last week Dr. James Cairns, Deputy 20 Chief Coroner for Investigations in 21 Ontario, telephoned me to advise me of 22 certain facts relating to the file". 23 And then there's just sort of a review of 24 the file by Dr. Carlisle. It then goes down to near the 25 bottom of the page -- one third (1/3) from the bottom:
991 "Dr. Cairns calls me to indicate 2 several things. First he states that 3 he discussed the matter with Dr. Smith, 4 and that Dr. Smith asserted that it was 5 the duty of the Coroner's Office to 6 protect him from the College in this 7 respect." 8 Stopping there for a moment. Is -- is the 9 conversation that you relay to Dr. Carlisle the 10 conversation that you had in your office with Dr. Karen 11 Smith and Dr. Charles Smith? 12 DR. JAMES CAIRNS: I'm sorry -- can you 13 just bring me to that particular line? 14 15 (BRIEF PAUSE) 16 17 MS. LINDA ROTHSTEIN: Registrar, can you 18 scroll through that page? 19 DR. JAMES CAIRNS: Oh, I've -- I've got 20 it now, sorry. It's further down the page. 21 MS. LINDA ROTHSTEIN: Yeah. 22 DR. JAMES CAIRNS: Yes, I've got it. 23 MS. LINDA ROTHSTEIN: Have you got that? 24 DR. JAMES CAIRNS: "Firstly, he states 25 the..."
1001 MS. LINDA ROTHSTEIN: Yes and is -- 2 DR. JAMES CAIRNS: Yes. 3 MS. LINDA ROTHSTEIN: -- and is that -- 4 is what he sets out there, first of all, in that -- in 5 the following two (2) paragraphs, does that all come from 6 that one meeting with Dr. Karen Smith and Dr. Charles 7 Smith? 8 DR. JAMES CAIRNS: It would have been 9 brought up in that meeting, but I think you're also aware 10 that he had asserted that position at earlier times as 11 well. 12 MS. LINDA ROTHSTEIN: All right. 13 DR. JAMES CAIRNS: But it would have 14 been brought up in that meeting. 15 MS. LINDA ROTHSTEIN: So, in that meeting 16 that occurred between February the 14th and sometime 17 prior to April the 10th of 2002, one (1) of the things 18 that Dr. Smith asserted was that the OCCO ought to 19 protect him from the College in some fashion. 20 DR. JAMES CAIRNS: Correct. 21 MS. LINDA ROTHSTEIN: And, Commissioner, 22 I anticipate you'll hear more about this issue when Dr. 23 Young testifies, but there's a lengthy history to the 24 proceedings involving Dr. Smith at the CPSO. 25 Fair, Dr. Cairns?
1011 DR. JAMES CAIRNS: That's fair. 2 MS. LINDA ROTHSTEIN: And at various 3 times, Dr. Smith asserted that the CPSO did not have 4 jurisdiction. Is that a simple but, nevertheless, 5 accurate way of putting it? 6 DR. JAMES CAIRNS: Yes, it is. 7 MS. LINDA ROTHSTEIN: And is that what 8 Dr. Smith was still seeking the OCCO to argue with the 9 CPSO on his behalf? 10 DR. JAMES CAIRNS: Yes. That's my 11 understanding. 12 MS. LINDA ROTHSTEIN: All right. 13 "While Dr. Cairns did not say so in so 14 many words, I believe his meaning was 15 that Dr. Smith wished the Coroner's 16 Office to assert with the College that 17 the College has no jurisdiction over 18 the matter because it involves the 19 activities of a Crown pathologist, and 20 that this should be seen as equivalent 21 to the execution of an office-like 22 coroner. Dr. Cairns indicated to me, 23 clearly, that the Coroner's Office 24 would not be taking that position, and 25 that, in his view, Dr. Smith should
1021 deal with his matters of the College in 2 the same way any other member would". 3 And, indeed, was that something that you 4 told Dr. Karen Smith and Dr. Charles Smith in the meeting 5 you've described? 6 DR. JAMES CAIRNS: Yes, because that -- 7 that issue had already been dealt with at a much earlier 8 state and that had been resolved in terms of the 9 responsibility of reporting to the College, irrespective 10 of whether he was doing an autopsy for the Crown or not. 11 MS. LINDA ROTHSTEIN: All right. 12 "Dr. Cairns wished to tell me secondly 13 that he had discussed the matter with 14 Dr. Smith and that Dr. Smith had 15 revealed to him what had actually 16 happened. According to Dr. Cairns, Dr. 17 Smith stated that he had not conducted 18 a rape-kit examination, that he had not 19 taken any of the samples or specimens; 20 that would ordinarily be associated 21 with such an examination. But instead 22 that he had, upon visual inspection, 23 detected what he believed to be a hair, 24 that he had collected his -- this hair 25 and placed it in an envelope, which he
1031 had sealed. And that he had kept this 2 envelope in his possession since the 3 time of the investigation, some five 4 (5) years, and had not revealed its 5 existence to anyone, had not submitted 6 it for analysis, and had not given it 7 to the police." 8 Now, that's a lot -- that has a lot of 9 components, that one (1) sentence, and so take your time 10 with the answer, Dr. Cairns, but does it accurately state 11 what you told Dr. Carlisle during your conversation with 12 him? 13 14 (BRIEF PAUSE) 15 16 DR. JAMES CAIRNS: That accurately 17 reflects what I said to Dr. Carlisle. 18 MS. LINDA ROTHSTEIN: And does that 19 fairly reflect what Dr. Smith told you? 20 DR. JAMES CAIRNS: Yes, it is. 21 MS. LINDA ROTHSTEIN: It then concludes 22 that paragraph: 23 "Dr. Cairn states that he had no notice 24 of this prior to Dr. Smith's 25 revelation, but as a result of the
1041 revelation, he believed that Dr. Smith 2 would be in some serious difficulty and 3 that he did not want -- did not wish to 4 be party as deputy chief coroner to any 5 deception. Dr. Cairns thirdly wished 6 to inform me that the hair in question 7 has now been delivered by Dr. Smith to 8 the proper authorities and has been 9 submitted for analysis. This could 10 have a number of varying effects on the 11 matter..." 12 We're at page 2 of that document, right? 13 DR. JAMES CAIRNS: Yes. 14 MS. LINDA ROTHSTEIN: 15 "It could be that the hair in question 16 will not be amenable to analysis and 17 that mitochondrial DNA will not be able 18 to be analyzed. In that case, it seems 19 unlikely that any further official 20 action would follow. On the other 21 hand, it may be that the hair in 22 question will be susceptible to 23 analysis, including mitochondrial DNA, 24 and that this may point the finger at 25 some party in respect of the death of
1051 the child. In that case, it is 2 entirely conceivable that charges 3 would, at this late date, be laid. In 4 that case, it would be very important 5 for the College to carefully consider 6 its strategy in pursuing the matter so 7 as to interfere as little as possible 8 with the important judicial procedures. 9 Dr. Cairns wished the College to know 10 that there was a possibility that 11 charges would yet be laid on account of 12 the discovery of this new evidence. I 13 assured Dr. Cairns that should we 14 become aware of that in the next short 15 while, we would certainly govern 16 ourselves accordingly." 17 And how much of that is Dr. Carlisle's own 18 intuition and how much of that is what you told him? 19 DR. JAMES CAIRNS: I -- I think it's a 20 pretty accurate reflection of that -- of the conversation 21 between us. 22 MS. LINDA ROTHSTEIN: Okay. 23 "Dr. Cairns wished to assure me that in 24 the event that the new evidence did not 25 add anything to the information already
1061 known about the matter, he would see to 2 it that undue delay did not occur in 3 making a decision on the matter and 4 that the College would not be asked to 5 delay for a long time based on the mere 6 speculation that charges might be laid 7 when there was no real likelihood of 8 that happening". 9 Is that also a fair reflection of what you 10 said, sir? 11 DR. JAMES CAIRNS: Yes, it is. 12 MS. LINDA ROTHSTEIN: So are we to glean 13 from that that in effect you were asking the College to 14 tread carefully for the short term until it could be 15 determined whether indeed there was going to be a new 16 criminal investigation? 17 DR. JAMES CAIRNS: I was asking them to 18 tread shortly in case this evidence would become of 19 significance in a -- in a criminal investigation leading 20 to charges and that I di û I would prefer that that was 21 not getting out until that had been either done or the 22 evidence was considered to be of no value whatsoever. 23 MS. LINDA ROTHSTEIN: All right. So do I 24 understand you to say, Dr. Cairns, that you concern was 25 that if the matter proceeded through to a full discipline
1071 hearing at the College and this became widely known that 2 that might, to some degree, undermine the police 3 investigation? 4 DR. JAMES CAIRNS: Very much so, yes. 5 MS. LINDA ROTHSTEIN: And the rest of it, 6 I think, does not, in fact, record so much what you said 7 as much as what Dr. Carlisle's conclusions are from all 8 of that. And again, Commissioner, I anticipate that that 9 will be the subject of some further evidence as we go on. 10 COMMISSIONER STEPHEN GOUDGE: I take it, 11 in your own mind, Dr. Cairns, you thought charges by the 12 College were likely, as a result of this? 13 DR. JAMES CAIRNS: Yes, I felt -- I felt 14 some form of action should be taken by the College, as a 15 result of this information. Yes, Commissioner. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: And I take it, up 19 until that point, Dr. Cairns, you hadn't come to the 20 conclusion that Dr. Smith's conduct actually merited some 21 form of disciplinary proceeding at the College? 22 DR. JAMES CAIRNS: This was the occasion 23 when I thought it did. And prior to that, I had not held 24 that view. 25 COMMISSIONER STEPHEN GOUDGE: I take it
1081 that was both because of your concern over his integrity 2 and your concern over his professional competence as 3 evidenced by what went on with the hair? 4 DR. JAMES CAIRNS: Correct, 5 Commissioner. 6 7 CONTINUED BY MS. LINDA ROTHSTEIN: 8 MS. LINDA ROTHSTEIN: Now because we're 9 still in the year 2002, Commissioner, I want to turn your 10 and Dr. Cairns' attention back to Paolo's case, which you 11 may recall we first spoke of in the context of 1994, when 12 you, Dr. Cairns, had a role in having Paolo's body 13 exhumed and re-autopsied by Dr. Smith? 14 DR. JAMES CAIRNS: That's correct. 15 MS. LINDA ROTHSTEIN: And so -- but 16 before we get to your re-involvement in that case in 17 2002, I thought, Dr. Cairns, it would be helpful if you 18 and I were able to properly contextualize your 19 involvement by going back to February 2001. 20 My understanding is that it was in 21 February 2001, shortly after Dr. Young's announcement of 22 some form of review of Dr. Smith's work, that defence 23 counsel for the accused in the Paolo case started asking 24 the Coroner's Office for information about whether, 25 indeed, Paolo's case was going to be one (1) of the cases
1091 that the OCCO saw fit to review by this review process, 2 is that fair? Do you remember that? 3 DR. JAMES CAIRNS: I have -- yes. I -- 4 MS. LINDA ROTHSTEIN: I can take you if 5 you like, Volume I, Tab 34. 6 7 (BRIEF PAUSE) 8 9 MS. LINDA ROTHSTEIN: Whoops, that didn't 10 work. I think it's -- okay. 11 MR. ROBERT CENTA: Volume II, Tab 34. 12 MS. LINDA ROTHSTEIN: Volume II, Tab 34. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: There we go, 16 PFP014537. It's a letter actually from Crown counsel in 17 this case to Mr. Lomer, who was defence counsel for one 18 (1) of the accused in this matter. 19 And you will see that it's dated February 20 the 9th, 2001, from Bob Hubbard. You remember him, Dr. 21 Cairns? 22 DR. JAMES CAIRNS: Not specifically, no. 23 MS. LINDA ROTHSTEIN: Okay. Well you 24 will note in the third last paragraph he -- he writes: 25 "I have also spoken to Dr. Jim Cairns
1101 at the Coroner's Office. He advises me 2 that his office intends to review the 3 work of Dr. Smith in relation to the 4 above two (2) cases." 5 There were actually two (2) accused in 6 that case, you'll recall. 7 "An extended review may also be done on 8 other cases that Dr. Smith has been 9 involved with. I suggest that you 10 contact this office for any further 11 information." 12 Does that assist you in refreshing your 13 memory? 14 DR. JAMES CAIRNS: Yes, it does. 15 MS. LINDA ROTHSTEIN: All right. So is 16 it fair to read that letter as suggesting that you, in 17 fact, got a call from the Crown attorney who was 18 prosecuting the accused in the Paolo case, and he was 19 inquiring about whether or not this case was going to be 20 covered by the review. 21 And at that stage it appeared that it 22 would? 23 DR. JAMES CAIRNS: Let me just read 24 this, if that's all right? 25
1111 (BRIEF PAUSE) 2 3 DR. JAMES CAIRNS: I'm indicating at 4 this time in early February that the office was intending 5 -- to review Dr. Smith's cases in regard to the Sharon 6 case and with regard to the Tyrell case; am I getting 7 that right? 8 MS. LINDA ROTHSTEIN: Oh, you're quite 9 right about that, sir. I stand corrected. And as to 10 whether or not it was going to encompass the Paolo case, 11 that remained to be determined; is that the way to read 12 that? 13 DR. JAMES CAIRNS: That's the way I'm 14 reading it. 15 MS. LINDA ROTHSTEIN: All right. 16 DR. JAMES CAIRNS: Yes. 17 MS. LINDA ROTHSTEIN: And does that 18 accord with your recollection? 19 DR. JAMES CAIRNS: Correct. 20 MS. LINDA ROTHSTEIN: All right. 21 DR. JAMES CAIRNS: And just in the 22 timing of this, this is obviously when we're -- we're 23 still thinking about what case we're gathering, so we're 24 still in the gathering -- in the gathering stage, yes. 25 MS. LINDA ROTHSTEIN: Based on what you
1121 told us this morning, Dr. Cairns, it's still not clear 2 what the parameters of the review will be. Is that fair? 3 DR. JAMES CAIRNS: At that stage, 4 correct. 5 MS. LINDA ROTHSTEIN: And so while there 6 had been, it would appear from this letter some 7 determination made to do a review of Sharon's case and of 8 the case involving the caregiver for Tyrell, what hadn't 9 yet been determined was whether in fact to do a review of 10 Paolo's case. 11 DR. JAMES CAIRNS: That's -- that's 12 correct. 13 MS. LINDA ROTHSTEIN: All right. So if 14 we move forward chronologically, then, to the next 15 document that we have, which is at Tab 35 of the same 16 volume, PFP014552, we see there that this is a letter 17 that's being again sent by senior counsel, the senior 18 Crown attorney on this matter at this stage, again to one 19 (1) of the defence counsel, albeit a different one (1), 20 Mr. Borenstein. 21 And she writes on October the 10th: 22 "Thank you for your letter dated 23 October 1, 2001, written on behalf of 24 yourself and Mr. Lomer. I forwarded 25 your letter to Dr. Cairns and have been
1131 in touch with him. As you are well 2 aware, I have been recently assigned to 3 this file. In reviewing the material 4 in the file it is clear that Dr. Smith 5 did not -- not offer an opinion as to 6 the definitive cause of death. He did 7 indicate to the Court that he believed 8 that the death of Paolo was non- 9 accidental. He based his opinion on 10 the fact that there were no credible ex 11 -- there was no credible explanation 12 for the death; there was an additional 13 wealth of other evidence which 14 supported the position that the child's 15 tragic death was non-accidental. You 16 have raised a number of issues with 17 respect to Dr. Smith's competence in 18 this matter. You have eluded in the 19 correspondence to other cases where Dr. 20 Smith's opinion was questioned. Mr. 21 Hubbard addressed these concerns". 22 I think that reflects the earlier con -- 23 correspondence, Dr. Cairns. 24 DR. JAMES CAIRNS: Yes. 25 MS. LINDA ROTHSTEIN:
1141 "Of course, each case must be 2 determined on its own merits. The fact 3 that Dr. Smith may have been correct or 4 incorrect in another case is not 5 determinative in this one (1); however, 6 in an effort to answer the queries that 7 you have raised, I can indicate that 8 Dr. Cairns advises that there is no 9 review into each and every case that 10 Dr. Smith was involved in. There has 11 been some review in isolated cases 12 where Dr. Smith's opinion was pivotal. 13 I suggest, as did Mr. Hubbard, that you 14 contact Dr. Cairn's office and he can 15 provide you with more details on these 16 issues. This is the most direct way of 17 getting the information. Let me know 18 if you have a problem". 19 Does that assist you in refreshing your 20 memory, Dr. Cairns, as to -- 21 DR. JAMES CAIRNS: Yes, it -- yes, it 22 does. 23 MS. LINDA ROTHSTEIN: What the status was 24 in October of 2001, and indeed you're copied on that 25 letter, which you will see from the bottom of page 2, do
1151 you note that? 2 DR. JAMES CAIRNS: I do. 3 MS. LINDA ROTHSTEIN: And has Ms. 4 Cecchetto fairly set out what you indicated to her prior 5 to her writing this letter? 6 DR. JAMES CAIRNS: I think she has, yes. 7 MS. LINDA ROTHSTEIN: And so is it fair 8 to say that by October of 2001 Dr. Young, having put on 9 hold external review of Dr. Smith's work by the end of 10 May or early June of that year, you were not 11 contemplating an external review of this case. 12 DR. JAMES CAIRNS: That's correct. 13 MS. LINDA ROTHSTEIN: Now, if we turn to 14 the next tab, October the 19th, 2001, this letter is 15 addressed to you from Ms. Cecchetto and it's 014558, you 16 will see that she confirms that, notwithstanding all of 17 that, she is requesting some form of review by your 18 office. 19 It reads: 20 "You will have received a copy of my 21 letter to defence counsel, Mr. 22 Borenstein and Mr. Lomer, in the above- 23 noted matter". 24 And again, Dr. Cairns, I think that's the 25 letter you and I just looked at.
1161 DR. JAMES CAIRNS: Yes. 2 MS. LINDA ROTHSTEIN: 3 "As I indicated in my letter to them, I 4 was prepared to request that the 5 opinion of Dr. Smith be reviewed, not 6 out of any concern that it was 7 erroneous, but to de -- to allay any 8 concerns that the defence might have. 9 I invited them to advise and provide 10 you with any information that they 11 might have or any additional opinions 12 that they might have which might be 13 relevant. I am now enclosing copies of 14 the relevant transcripts". 15 You wouldn't have had those, is that 16 right? 17 DR. JAMES CAIRNS: That's correct 18 MS. LINDA ROTHSTEIN: 19 "In addition to Dr. Smith's evidence, I 20 have included the other medical 21 evidence so that it is available to 22 you. I will also obtain the original 23 papers from the Court of Appeal and 24 forward the medical and forensic 25 reports in the file to you. I have
1171 contacted the Crown's office and they 2 are pulling the file together to send 3 me a copy of the preliminary hearing 4 transcript. If there are any questions 5 or concerns or any additional material 6 that you require, please let me know". 7 Did you have any questions or concerns 8 about what you were being asked to do, Dr. Cairns? 9 DR. JAMES CAIRNS: I had the impression 10 that she wanted me to review particularly a transcript, 11 et cetera, when she was able to get them for me. 12 MS. LINDA ROTHSTEIN: And did you have 13 any concerns about doing that at that stage? 14 DR. JAMES CAIRNS: I did not. 15 MS. LINDA ROTHSTEIN: Well then help me 16 with this Dr. Cairns. It -- it is one (1) point in the 17 chronology that we have to -- have to deal with and I -- 18 I to be fair to you -- wish I'd remembered to do it just 19 -- just before. 20 But you were interviewed by Jane O'Hara 21 (phonetic), do you recall, in the latter part of April of 22 that year, 2001? 23 DR. JAMES CAIRNS: Yes, I do. 24 MS. LINDA ROTHSTEIN: All right. And she 25 was interviewing you because she was planning to do a
1181 piece on Dr. Smith for MacLean's? 2 DR. JAMES CAIRNS: Correct. 3 MS. LINDA ROTHSTEIN: And she was hoping 4 to get some background from you and ideally from Dr. 5 Young on that piece? 6 DR. JAMES CAIRNS: That's correct. 7 MS. LINDA ROTHSTEIN: All right. And 8 once again you agreed to cooperate with her and provide 9 an interview? 10 DR. JAMES CAIRNS: I did. 11 MS. LINDA ROTHSTEIN: And we indeed have 12 a copy of your transcript of that interview, do we not? 13 DR. JAMES CAIRNS: Yes. 14 MS. LINDA ROTHSTEIN: And you've had an 15 opportunity to review that with me and satisfy yourself 16 that it fairly sets out what you told her, have you not? 17 DR. JAMES CAIRNS: I have and I'd agree 18 it fairly sets out what I said. 19 MS. LINDA ROTHSTEIN: Okay. And I 20 believe that we'll find that in Volume IV at Tab number 21 46 and it's 300416. And this is a new addition to the 22 database for those who haven't yet had an opportunity to 23 review it. 24 And, Dr. Cairns, you and I agreed that the 25 likely date of this interview -- telephone interview with
1191 Ms. Jane O'Hara was on April the 30th, 2001? 2 DR. JAMES CAIRNS: Correct. 3 MS. LINDA ROTHSTEIN: All right. And -- 4 DR. JAMES CAIRNS: Sorry, can you give 5 me the tab again, please? 6 MS. LINDA ROTHSTEIN: Yes. Tab 46. 7 DR. JAMES CAIRNS: Thank you, I've got 8 that now. 9 MS. LINDA ROTHSTEIN: And a variety of 10 questions are asked about -- asked of you at that stage. 11 At that stage, just again -- sorry, we're a little bit 12 out of order here, Commissioner, Dr. Cairns -- but it's 13 the end of April that you still think there's going to be 14 a review? It hasn't yet been put on hold, fair? 15 DR. JAMES CAIRNS: I think that's a fair 16 assessment. 17 MS. LINDA ROTHSTEIN: And Ms. O'Hara is 18 in fact phoning you in an effort to try and understand 19 what the parameters of that review are, fair? 20 DR. JAMES CAIRNS: That's true. 21 MS. LINDA ROTHSTEIN: And you, sir, are 22 doing your best to answer her questions without revealing 23 too much because it wouldn't be appropriate to publicize 24 all of the details of your thoughts about that process at 25 that stage. Is that also a fair reflection of your mind
1201 set? 2 DR. JAMES CAIRNS: Yes, it is. 3 MS. LINDA ROTHSTEIN: All right. 4 And so she asked you some questions about 5 all of this and she asks you whether you think, in fact, 6 Dr. Smith has been unfairly slammed. That's at page 47, 7 sir, of that document. And that's arising out of the 8 Sharon case and all the attention that has been given to 9 that case. 10 And you say: 11 "I don't know at this time. I think 12 there is a serious issue and that has 13 been recognized a little bit in the 14 United States about a difference of 15 opinion". 16 And then on page 48 there's a discussion 17 about experts in general and how complex this work could 18 be. And then near the bottom of that page, starting at 19 line 16 -- are you with me Dr. Cairns? 20 DR. JAMES CAIRNS: I am. 21 MS. LINDA ROTHSTEIN: 22 "MS. O'HARA: Right, right. Okay. I'm 23 okay. 24 That being said, um, isn't there 25 somewhat a difference between sort of a
1211 shaking case like the Louise Woodward 2 case and a dog bite case, a dog bite, 3 stab wound case, that in fact, um, no 4 matter how, Dr. Cairns, it is a subject 5 of review? 6 It should be the subject of review, and 7 I hopefully -- the proper, uh, things 8 are in place to review that 9 independently -- and to review it 10 independently of our office so that -- 11 and so that any bias I may have or not 12 have would not come into that. 13 MS. O'HARA: Right. Right. But you're 14 not really in charge of the review, 15 though, are you, Dr. Cairns? 16 DR. CAIRNS: No, I'm not. No. 17 MS. O'HARA: Right. Okay, so if all -- 18 DR. CAIRNS: I mean, I don't think it 19 would be appropriate for me to be in 20 charge of the review. 21 MS. O'HARA: Because of -- you have a 22 conflict in some way because you're -- 23 DR. CAIRNS: Well, I obviously -- I 24 know Dr. Smith very well. I have a 25 personal friendship with him, and it
1221 would be entirely improper, when 2 there's a criticism, for me to say, 3 Fine, I'll do it. I don't think that 4 wouSd be appropriate." 5 And then I believe you move on to the 6 subject of where Dr. Smith was born and so on. You take 7 a look, and let me know where there's any other portion 8 of that where you think you qualify that statement, sir. 9 DR. JAMES CAIRNS: No, I don't think I 10 qualify it at a later time. 11 MS. LINDA ROTHSTEIN: So, in April of 12 2001, you were taking the public position with Ms. O'Hara 13 that you oughtn't to be someone reviewing the work of Dr. 14 Smith. Is that a fair reading of what you said, sir? 15 DR. JAMES CAIRNS: I'm talking about the 16 external review here. 17 MS. LINDA ROTHSTEIN: Okay. It's not a 18 broader principle? It's not a principle that suggests 19 that you have friendship and potential other biases that 20 disqualify you from providing any kind of quality 21 assurance test to someone other -- someone outside the 22 OCCO about the work of Dr. Smith? 23 DR. JAMES CAIRNS: The relationship with 24 Dr. Smith was of a professional nature. I'm not aware 25 that Dr. Chiasson had anything but a professional
1231 relationship, and I'm not aware of Dr. McLellan having 2 anything but a professional relationship either. 3 MS. LINDA ROTHSTEIN: So, by "personal 4 friendship" you mean us to understand it was borne of a 5 professional friendship? 6 DR. JAMES CAIRNS: That -- that is 7 correct. 8 MS. LINDA ROTHSTEIN: And I accept that, 9 sir. But, having said that, you were close colleagues. 10 You were professional friends. 11 That's fair, isn't it? 12 DR. JAMES CAIRNS: That -- oh, that is 13 very fair, yes. 14 MS. LINDA ROTHSTEIN: And so, in light of 15 that, if nothing else, oughtn't that to have disqualified 16 you, by October of 2001, from conducting any form of 17 review of the work of Dr. Charles Smith? 18 DR. JAMES CAIRNS: It probably should 19 have not only disqualified me; it probably should have 20 disqualified the whole office. 21 MS. LINDA ROTHSTEIN: In any event, by 22 October of 2001, you didn't resist the invitation from 23 Ms. Cecchetto to undertake some form of review of the 24 Paolo case. 25 DR. JAMES CAIRNS: That's correct.
1241 MS. LINDA ROTHSTEIN: So please help us 2 understand why that was. 3 DR. JAMES CAIRNS: She wanted me to 4 review work and -- and get my opinion of what I thought 5 of it. 6 MS. LINDA ROTHSTEIN: But why did you 7 undertake that work at that stage? 8 DR. JAMES CAIRNS: At her -- at her 9 request. 10 MS. LINDA ROTHSTEIN: I understand that 11 Dr. Cairns, but you'd had the meeting with Dr. Smith 12 about the hair. You've -- you've expressed to others the 13 concern that you can't even -- 14 DR. JAMES CAIRNS: That's right. When - 15 - when is -- when is this -- just give me the dates 16 again. 17 MS. LINDA ROTHSTEIN: Oh, you're right. 18 You're right. No, no, fair, fair. You're still in 19 October. You do end up undertaking that review for 20 after, but I've gotten ahead of us and you're quite right 21 to stop me. 22 All right. So, by October of 2001, you 23 were still prepared to undertake that work. 24 DR. JAMES CAIRNS: That's correct. 25 MS. LINDA ROTHSTEIN: All right. My
1251 apologies, Commissioner. That's my mistake in the 2 chronology and not the witness's. 3 All right -- 4 COMMISSIONER STEPHEN GOUDGE: Can I just 5 ask one (1) other chronology question of Dr. Cairns just 6 because I was not sure. Dr. Young comes to the 7 conclusion that there should be no external review as a 8 result of legal advice, and he tells you that. 9 DR. JAMES CAIRNS: That's correct. 10 COMMISSIONER STEPHEN GOUDGE: I thought 11 you said to me this morning that he told you that the end 12 of February, early March '01? 13 DR. JAMES CAIRNS: That is my 14 recollection, yes. 15 COMMISSIONER STEPHEN GOUDGE: Okay, so 16 are you talking about some other review here when you 17 imply that there is going to be a review? 18 DR. JAMES CAIRNS: No, I'm not. I don't 19 think at the time of this interview it had been made 20 public whether there was going to be a -- 21 COMMISSIONER STEPHEN GOUDGE: Although 22 you knew from Dr. Young. 23 DR. JAMES CAIRNS: Although -- although 24 I knew, I wasn't going to particularly indicate that to 25 the media.
1261 COMMISSIONER STEPHEN GOUDGE: Okay. 2 3 CONTINUED BY MS. LINDA ROTHSTEIN: 4 MS. LINDA ROTHSTEIN: All right, Dr. 5 Cairns, we're now back to Volume II, Tab 37, and we've 6 moved forward from the Fall -- October of 2001 when Ms. 7 Cecchetto has invited you to do a review. And we're now 8 in February of 2002. At that -- 9 DR. JAMES CAIRNS: I'm sorry -- I'm 10 sorry, I've -- I've -- 11 MS. LINDA ROTHSTEIN: Tab 37, sir, of 12 Volume II. 13 DR. JAMES CAIRNS: Of Volume II, thank 14 you. 15 MS. LINDA ROTHSTEIN: And we're at 16 014566. 17 COMMISSIONER STEPHEN GOUDGE: Sorry, tab 18 number again? 19 MS. LINDA ROTHSTEIN: 37, Volume II. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Have you got that, 23 Dr. Cairns? 24 DR. JAMES CAIRNS: I do. 25 MS. LINDA ROTHSTEIN: Letter from Mr.
1271 Lomer to Ms. Cecchetto -- not at all clear that you were 2 copied with this correspondence. At the time, in fact, I 3 don't think you were. But just to help orient us again, 4 he says: 5 "I understand that on January 25th, 6 2001, Dr. Smith requested of Dr. Young, 7 Chief Coroner for Ontario, that he be 8 taken off the roster for forensic 9 autopsies until such time as the 10 controversy surrounding him was 11 resolved. I do not know if he was 12 still off the roster at present. I 13 would like disclosure of that. I 14 understand that on January 31st, 2001, 15 there was a high level damage control 16 meeting to discuss how to deal with Dr. 17 Smith's autopsies. It was decided, I 18 understand, that the Office of the 19 Chief Coroner would review all cases in 20 the trial system to ensure Dr. Smith's 21 opinions were medically sound. Also, 22 it would review Smith's testimony with 23 respect to his findings and that those 24 findings accorded with accepted 25 standards of forensic pathology. If
1281 after the review, Dr. Smith's work was 2 found to be satisfactory and there was 3 no uncertainty as to the cause of 4 death, the review process would end 5 there. If, however, it was felt that 6 the cause of death might reasonably be 7 the subject of dispute among qualified 8 professionals, it would be referred to 9 an independent expert for review." 10 It's not the most accurate description of 11 what, in fact, you and others undertook in the months 12 following the announcement in January of 2001, is it, Dr. 13 Cairns? 14 DR. JAMES CAIRNS: It's not, but I could 15 understand why Mr. Lomer, in writing that, may have been 16 under that impression. 17 MS. LINDA ROTHSTEIN: 18 "I further understand that this was the 19 position taken by the Crown before the 20 Superior Court for Ontario in another 21 case involving a Smith autopsy. I note 22 these things: 23 1. I'm disclosing this to you when it 24 should have been the Crown disclosing 25 this to the defence.
1291 2. Based on your acknowledgment that 2 the cause of death was uncertain in 3 this case, the case should be referred 4 to an independent expert for further 5 review. 6 And 3. By way of disclosure, can you 7 advise me of how many cases were, in 8 fact, referred to an independent 9 review.; the names of the defence 10 counsel involved, and the opinions of 11 the independent experts. 12 Finally, given the growing number of 13 cases concerning Dr. Smith's opinions, 14 is it not time of an independent peer 15 review of Dr. Smith be conducted?" 16 We're on page 2. And so on. And then if 17 you turn to the next tab, we'll see that, in fact, Ms. 18 Cecchetto, I believe, forwarded a copy of that letter to 19 you, Dr. Cairns. We're at Tab 37 of Volume II. 20 COMMISSIONER STEPHEN GOUDGE: 37 or 38? 21 MS. LINDA ROTHSTEIN: 38, excuse me, 22 PFP014571. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Ms. Cecchetto is
1301 now responding to Mr. Lomer: 2 "Thank you for your letter dated 3 February 6th, 2002. I forwarded a copy 4 of your letter to Dr. Cairns on 5 February the 15th, 2002." 6 Do you remember that, sir? 7 DR. JAMES CAIRNS: Do I remember 8 receiving a copy of the letter? Yes. 9 MS. LINDA ROTHSTEIN: 10 "I had an opportunity to discuss the 11 matter with him on that date." 12 Is that true, did you discuss the matter 13 with Ms. Cecchetto? 14 DR. JAMES CAIRNS: Yes. 15 MS. LINDA ROTHSTEIN: 16 "As was indicated in my previous letter 17 to Mr. Borenstein, (phonetic) dated 18 October 10, 2002, a copy of which was 19 forwarded to you, the fact that Dr. 20 Smith was correct or incorrect..." -- 21 DR. JAMES CAIRNS: That's 2001. 22 MS. LINDA ROTHSTEIN: Yes, I see that. 23 "... was correct or incorrect in 24 another case is not determinative of 25 this case. Clearly, this case must be
1311 judged on its own merits." 2 And that was a view that you shared, did 3 you not, Dr. Cairns? 4 DR. JAMES CAIRNS: It was. 5 MS. LINDA ROTHSTEIN: 6 "In my October letter, I provided you 7 with information that has been relayed 8 to me by Dr. Cairns, and I invited you, 9 as did my predecessor on the case, Mr. 10 Hubbard (phonetic), to contact him 11 directly." 12 And stopping there for a moment. Did Mr. 13 Lomer actually contact you directly to discuss whether 14 you ought to review this particular case? If so, how you 15 ought to do it? 16 DR. JAMES CAIRNS: I have no 17 recollection one (1) way or the other. 18 MS. LINDA ROTHSTEIN: Mm-hm. 19 "I indicated to you that Dr. Cairns' 20 office could provide you with the 21 details on the issues that you 22 requested. This appeared to be the 23 most expeditious and direct way of 24 getting the information. I invited you 25 to contact me if you had any concerns
1321 or experienced any problems in securing 2 the information, although my letter was 3 sent in early October, I did not hear 4 from you or Mr. Borenstein (phonetic), 5 until your letter dated, February 6th." 6 And then she takes issue with Mr. Lomer's 7 objection to the manner in which she has fulfilled her 8 disclosure obligations. They're obviously having some 9 debate about the extent and nature of Crown disclosure 10 obligations and the process but, for our purposes, if we 11 go down to the fourth paragraph on page 2 of that letter, 12 starting with, 13 "In relation to the specific concerns 14 raised." 15 Do you see that, Dr. Cairns? 16 DR. JAMES CAIRNS: I do. 17 MS. LINDA ROTHSTEIN: 18 "Dr. Cairns advises that there was a 19 review of Dr. Smith's work in 20 approximately twenty (20) cases. In 21 eighteen (18) of these cases, there was 22 no difference of opinion, whatsoever, 23 with Dr. Smith. In the other two (2) 24 cases, I understand that there was a 25 difference of opinion, but that this
1331 difference of opinion was a difference 2 on which experts might disagree. There 3 was no suggestion that Dr. Smith was 4 incompetent or negligent in these 5 cases." 6 Next paragraph: 7 "In fact, it is my understanding that - 8 - from Dr. Cairns -- that after the 9 reviews, Dr. Smith was put back on the 10 autopsy rota in June. As far as the 11 Coroner's Office was concerned, he was 12 competent to conduct any autopsy. If 13 was Dr. Smith himself who took steps to 14 remove himself voluntarily. Dr. Smith, 15 in effect, recognized that there would 16 be a challenge to him on each and every 17 case. While this challenge might prove 18 unfounded, it would significantly 19 impact on the trial process and the 20 efficient use of resources." 21 Did you indeed speak with Ms. Cecchetto 22 about those matters before she wrote this letter, Dr. 23 Cairns? 24 DR. JAMES CAIRNS: I did. And the only 25 thing that I would indicate that that may be in error
1341 here is he was only going to go back into non-criminally 2 suspicious cases. 3 I know what it says there, but I'm 4 satisfied that I knew he was only going to be doing non- 5 criminal and non-suspicious cases. 6 MS. LINDA ROTHSTEIN: Are you satisfied 7 you told her that? 8 DR. JAMES CAIRNS: I'm not in a position 9 to say one (1) way or the other. I would expect I have, 10 but I -- I obviously have no independent recollection. 11 This is what she has written down. 12 MS. LINDA ROTHSTEIN: If we look at page 13 3, you were copied on that letter, sir? 14 DR. JAMES CAIRNS: Yes. 15 MS. LINDA ROTHSTEIN: Did you take any 16 steps to correct that misunderstanding? 17 DR. JAMES CAIRNS: I did not. 18 MS. LINDA ROTHSTEIN: Do you agree with 19 me, Dr. Cairns that those statements, taken together, 20 suffer the same flaws identified by Justice Trafford in 21 Kporwodu, and would indeed have misled Ms. Cecchetto and 22 Mr. Lomer about the nature and scope of the review? 23 DR. JAMES CAIRNS: Given the -- having 24 read both my preliminary hearing evidence and my trial 25 evidence, and having done that recently as opposed to
1351 back then, I think it is fair to say that my own 2 understanding of -- of my evidence -- and it was 3 confusing. I would agree with that. 4 MS. LINDA ROTHSTEIN: Okay. And that 5 wasn't actually my question, so let me make it simpler. 6 Do you agree, sir, that these two (2) paragraphs taken 7 together may have misled Ms. Cecchetto and/or Mr. Lomer 8 about the rigour of the OCCO's investigation of Dr. 9 Smith's work as of that date? 10 DR. JAMES CAIRNS: I think they may, in 11 the same way as -- as Justice Trafford said. They may 12 have misled him. 13 MS. LINDA ROTHSTEIN: And do you agree 14 that it may, indeed, have misled them about the results 15 that were obtained from that review? 16 DR. JAMES CAIRNS: I would agree, it may 17 have misled them. 18 MS. LINDA ROTHSTEIN: And do you agree 19 that it may have misled them about the scope of Dr. 20 Smith's practice after June of 2001? 21 DR. JAMES CAIRNS: That -- with the way 22 that's worded, but I have some difficulty with that -- 23 just that wording, 'cause we knew he was not going to do 24 anything. But -- but as it's written, may it have misled 25 them? Yes.
1361 MS. LINDA ROTHSTEIN: Because in fact, he 2 had not been determined to be competent to do any 3 autopsy, had he? 4 DR. JAMES CAIRNS: He had only been 5 allowed to do non-suspicious, non-criminal cases. He was 6 not allowed to do any autopsy. 7 MS. LINDA ROTHSTEIN: And no review ever 8 came to the conclusion that there was no suggestion that 9 Dr. Smith was incompetent, did it? 10 DR. JAMES CAIRNS: I'm sorry? 11 MS. LINDA ROTHSTEIN: There was never a 12 review that was conducted by the OCCO that concluded that 13 Dr. Smith was not incompetent and not negligent in these 14 cases -- meaning the criminally suspicious cases. 15 DR. JAMES CAIRNS: The ones that were 16 reviewed on the case-by-case basis; there were two (2) of 17 them sent out for external review and those were 18 differences of opinion between experts. 19 MS. LINDA ROTHSTEIN: But, Dr. Cairns, 20 looking at the paragraph that you and I just read 21 together, that contemplates that there was a review of 22 more than two (2) cases, of as many as twenty (20), 23 correct? 24 DR. JAMES CAIRNS: This is -- this is 25 talking about, in brackets, the internal review. There
1371 were twenty-four (24) cases of which four (4) of those -- 2 no, six (6) of those were in fact non-criminal cases. 3 MS. LINDA ROTHSTEIN: Was it really fair 4 after that review to conclude that there was no concern, 5 no suggestion about incompetence or negligence on Dr. 6 Smith's part? 7 DR. JAMES CAIRNS: There had been no -- 8 there had been no decision made, period. 9 MS. LINDA ROTHSTEIN: On August the 1st 10 of 2002, Ms. Cecchetto wrote to Mr. Lomer; that's at Tab 11 39 of that same volume, sir, and it's 014583, and she 12 says: 13 "As you are aware, we've requested Dr. 14 Cairns of the Coroner's Office to 15 conduct a review of Dr. Smith's work in 16 relation to the death of Paolo. Dr. 17 Cairns was in possession of all of the 18 medical evidence in this file, as well 19 as all of the autopsy findings and the 20 other medical exhibits. I invited the 21 defence to contact Dr. Cairns and to 22 provide him with any additional 23 information or to advise me if they 24 required any additional materials to be 25 forwarded to Dr. Cairns for his review.
1381 It is my understanding that no such 2 information was ever provided to him 3 and that no contact was ever made by 4 defence counsel." 5 Is that accordant with your understanding, 6 as well? 7 DR. JAMES CAIRNS: Yes, it is. 8 MS. LINDA ROTHSTEIN: 9 "I spoke to Dr. Cairns on July 31, 10 2002." 11 Do you remember that? 12 DR. JAMES CAIRNS: Not specifically, but 13 I have no reason to -- to argue with it; it's there in 14 black and white. 15 MS. LINDA ROTHSTEIN: 16 "He indicated that he had completed his 17 review. In order to perform his 18 review, he had looked, not only, at the 19 autopsy, but all of the medical 20 evidence that had -- provided to him. 21 He was of the view that there was 22 complete consistency between Dr. 23 Smith's opinion and that of the other 24 medical experts. He saw no 25 contradictions whatsoever. He had no
1391 concerns with respect to the autopsy 2 report. It is his opinion that nothing 3 would be served by doing anything 4 further or seeking out any other 5 opinions. I have asked him to put the 6 results of his review in writing and to 7 provide it to me since you prefer to 8 deal through me as opposed to dealing 9 directly with him." 10 Is that what you told Ms. Cecchetto about 11 the status of the matter as of the end of July? 12 DR. JAMES CAIRNS: That is correct. 13 MS. LINDA ROTHSTEIN: So, as of the end 14 of July 2002, you had come to the conclusion, not only 15 that it was appropriate for you to do an internal review, 16 but also, sir, that there was no need, whatsoever, for an 17 external one. 18 DR. JAMES CAIRNS: That's correct. 19 MS. LINDA ROTHSTEIN: Why is that, Dr. 20 Cairns? 21 DR. JAMES CAIRNS: Because I had read 22 all the material that was available to me, and that was 23 my opinion. 24 MS. LINDA ROTHSTEIN: But, Dr. Cairns, 25 why was that the point? Why weren't you at a stage in
1401 your understanding of Dr. Smith's strengths and 2 weaknesses and the very difficult position he had put 3 your office in where you couldn't possibly be the seal of 4 approval on Dr. Smith's files. 5 Why weren't you at that point? 6 DR. JAMES CAIRNS: I, obviously, was not 7 at that point and, obviously, I took what you were saying 8 and agreed with it and at that time, I would not have 9 done it. 10 MS. LINDA ROTHSTEIN: Did you still feel 11 loyal to Dr. Smith? Was that an issue for you? 12 DR. JAMES CAIRNS: No, not in this case. 13 In -- in this case I was convinced by all the other 14 evidence in that trial and by reading what the Judge said 15 and what the Court of Appeal had said and that Dr. Smith 16 had said he had no cause of death. It was for all of 17 those reasons that I made that -- that was my conclusion. 18 MS. LINDA ROTHSTEIN: Are you saying, 19 sir, that you were influenced by your personal belief, 20 which indeed has been supported by the recent evidence 21 we've heard, to some degree, that this was a case of 22 abuse and that abuse was, to some extent, responsible for 23 Paolo's injuries? 24 Is that what you're saying? 25 DR. JAMES CAIRNS: The -- all the other
1411 medical evidence that I read during the trial was 2 indicating that. 3 MS. LINDA ROTHSTEIN: Let's look at the 4 document at Tab 41. 5 COMMISSIONER STEPHEN GOUDGE: Can I just 6 ask one (1) question about this, Dr. Cairns? 7 Did you have any concerns that you were, 8 in effect, providing your own pathology opinion on this 9 evidence when you came to the conclusion that you had no 10 concerns with respect to the autopsy report? 11 DR. JAMES CAIRNS: His conclusion of the 12 autopsy report -- 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 DR. JAMES CAIRNS: -- was he did not -- 15 he did not determine a cause of death. 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. JAMES CAIRNS: And in the trial, 18 there were discussions with the Judge. And in the 19 Judge's summing-up to the jury, he indicated that, You 20 must remember Dr. Smith has not given you a definitive 21 cause of death in this case, taking that into 22 consideration along with the other medical evidence. 23 But, Commissioner, I agree with you. I 24 was not reviewing his histology, the other aspects of his 25 pathology --
1421 COMMISSIONER STEPHEN GOUDGE: I guess 2 that is what I am getting at, Dr. Cairns, because, I 3 mean, you have said candidly before you did not feel you 4 were trained to do that. 5 DR. JAMES CAIRNS: Absolutely. And I 6 sent this letter to a very senior Crown attorney who -- I 7 absolutely satisfied -- knew exactly what my job was and 8 what it wasn't. 9 COMMISSIONER STEPHEN GOUDGE: It places 10 the coroner, who is not trained in pathology, in a 11 difficult position to take on a task like this, doesn't 12 it? 13 DR. JAMES CAIRNS: Yes, it does, 14 Commissioner, I agree. 15 COMMISSIONER STEPHEN GOUDGE: I mean, 16 just looking forward, do you have any concerns about that 17 kind of role going forward? 18 DR. JAMES CAIRNS: Oh, I -- I do. I 19 think that this Inquiry sheds lights on many things, and 20 I think I would agree with you entirely. That it would 21 be my advice that, Do not make any comments. If it's 22 related to pathology, give it over to a pathologist, no 23 matter how simple the conclusion seems to be. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 Thank you.
1431 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: So we're at Tab 41, 4 Commissioner and Dr. Cairns. PFP014590. Ms. Cecchetto 5 writes you on September the 13th, 2002: 6 "On July 31, 2002, you advised me that 7 you had completed your review of Dr. 8 Smith's work in relation to the death 9 of Paolo. You concluded that there was 10 complete consistency between Dr. 11 Smith's opinion and that of the other 12 medical experts. You saw no purpose in 13 doing anything further or seeking out 14 any other opinions." 15 That's indeed what you told her, is that 16 true? 17 DR. JAMES CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: 19 "I asked you to prepare a report 20 outlining the nature of your review and 21 setting out the results of your review. 22 The defence in this matter have taken 23 the position that they would prefer to 24 deal through the Crown. I advised them 25 of the results of your investigation
1441 and indicated to them that I would 2 forward a copy of your report when it 3 arrived. The Paolo matter was 4 subsequently in purge Court. The Court 5 of Appeal ordered that the defence 6 prepare their factum by September 13th. 7 They further ordered that the defence 8 advise, on or before the 13th, whether 9 or not they would be pursuing their 10 fresh evidence application. The 11 defence state that they cannot take 12 their final position, with respect to 13 fresh evidence, until they receive your 14 report." 15 Dr. Cairns, did you understand the 16 importance of the juncture that the Crown and the defence 17 were at with respect to waiting to hear from you? 18 DR. JAMES CAIRNS: I indicate -- it 19 clearly indicates that they would -- they needed my 20 report at this time. 21 MS. LINDA ROTHSTEIN: But because there 22 was the potential of a fresh evidence application on 23 behalf of the accused. 24 DR. JAMES CAIRNS: I understand that 25 also.
1451 MS. LINDA ROTHSTEIN: It was at a very 2 serious point in this history -- this case -- was it not? 3 DR. JAMES CAIRNS: Yes, it was. 4 MS. LINDA ROTHSTEIN: September 27th, 5 2002, at the next tab, you respond to that letter. 6 014595. 7 "My apologies for the delay in getting 8 this report to you. At your request, I 9 have completed a thorough review of Dr. 10 Smith's work in relation to the death 11 of Paolo. This review included an 12 examination of the original autopsy 13 report prepared by Dr. Chan and the 14 subsequent autopsy report prepared by 15 Dr. Smith, as well as autopsy 16 photographs and all other photographs 17 of the deceased. I also read 18 transcripts of the testimony given by 19 the following individuals at the trial 20 before the Honourable Justice Strong: 21 1) Mr. Limer (phonetic)." 22 He was a pathology assistant, was he not? 23 DR. JAMES CAIRNS: Correct. 24 MS. LINDA ROTHSTEIN: 25 "2) Mr. Dardaine (phonetic)."
1461 He was a biomedical technologist, was he 2 not? 3 DR. JAMES CAIRNS: Correct. 4 MS. LINDA ROTHSTEIN: 3. Mr. Chan, a 5 pathologist? 6 DR. JAMES CAIRNS: Correct. 7 MS. LINDA ROTHSTEIN: 4. Dr. Huyer, a 8 pediatrician with the SCAN Team as we know? 9 DR. JAMES CAIRNS: That's correct. 10 MS. LINDA ROTHSTEIN: Dr. Babyn, an 11 expert in pediatric radiology? 12 DR. JAMES CAIRNS: Correct. 13 MS. LINDA ROTHSTEIN: And Dr. Smith, a 14 pathologist? 15 DR. JAMES CAIRNS: That's correct. 16 MS. LINDA ROTHSTEIN: 17 "The result of my review; I have no 18 concerns regarding the opinion given by 19 Dr. Smith, and see no reason whatsoever 20 for our office or the Crown attorney to 21 hire another expert. If you require 22 any further information do not hesitate 23 to contact me." 24 You say you had no concerns regarding an 25 opinion of Dr. Smith, even after you learned of Dr.
1471 Smith's description of the events surrounding the hair in 2 Jenna's Case? 3 DR. JAMES CAIRNS: I was referring to 4 this case. 5 MS. LINDA ROTHSTEIN: Why were you able 6 to see it as a single case as opposed to part of a -- the 7 work product of a pathologist? 8 DR. JAMES CAIRNS: I -- I did see it as 9 an individual case. In hindsight was I wrong? Yes. 10 MS. LINDA ROTHSTEIN: And even after you 11 learned of Dr. Smith's description to the CPSO of his 12 quote, "appropriate sampling" that he'd conducted during 13 the post-mortem examination of Jenna? 14 DR. JAMES CAIRNS: Having never really 15 said, that I did it, and in hindsight I was wrong. 16 MS. LINDA ROTHSTEIN: And I take it that 17 in -- in answer to the Commissioner's question, you 18 concede that in fact to properly and thoroughly and 19 independently review this case, one (1) would need some 20 pathology expertise? 21 DR. JAMES CAIRNS: I agree. 22 MS. LINDA ROTHSTEIN: And therefore it -- 23 it wasn't really appropriate for you to offer up your 24 opinion as constituting a thorough review of Dr. Smith's 25 work, is that fair?
1481 DR. JAMES CAIRNS: I did not in replying 2 to this, indicate to the Crown that I had talked to any 3 other pathologist. 4 MS. LINDA ROTHSTEIN: I understand that, 5 but you're still putting forward, sir, the notion that 6 this is a thorough review. 7 Are you saying, sir, that neither the 8 Crown nor the defence would have been the least bit 9 confused about the limits of your expertise and your 10 review therefore? 11 DR. JAMES CAIRNS: I can't speak for the 12 defence, but I would have anticipated that this is a very 13 senior Crown. I thought that Crown would know the limits 14 of my exp -- of my expertise. 15 MS. LINDA ROTHSTEIN: And you don't think 16 that this wasn't a situation in which Ms. Cechetto was 17 really just asking you to do a screen, a basic screen, to 18 determine whether indeed an independent external 19 pathologist was required to review this case? 20 DR. JAMES CAIRNS: That's what I would 21 have thought she was asking me to do, yes. 22 MS. LINDA ROTHSTEIN: You recognize as 23 well, sir, of course, that your conclusion on this case 24 has now been refuted by the forensic pathologists who did 25 the review of the original slides?
1491 DR. JAMES CAIRNS: And I accept their 2 criticism and agree with them. 3 MS. LINDA ROTHSTEIN: Commissioner, I do 4 have a bit more to do with Dr. Cairns, but I actually 5 expect that I'll be finished earlier then not, so I would 6 propose that we break now for lunch. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 We'll break for lunch now. We'll come back at our usual 9 time, and over lunch I'll try and give you all a sense 10 after lunch of cross-examination times, and we'll 11 commence at 2:00 o'clock with you Ms. Rothstein, or are 12 you almost done? 13 MS. LINDA ROTHSTEIN: I'm -- I'll be done 14 before 3:15 I expect. 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 MS. LINDA ROTHSTEIN: Thank you. 17 COMMISSIONER STEPHEN GOUDGE: And 18 following that, we'll commence cross-examination, I guess 19 with you, Mr. Gover. 20 MR. BRIAN GOVER: Yes, thank you. 21 COMMISSIONER STEPHEN GOUDGE: 2:00 22 o'clock. 23 24 --- Upon recessing at 12:29 p.m. 25
1501 --- Upon resuming at 2:00 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, Mr. Commissioner, Dr. Cairns. Before lunch, sir, 11 you and I had reviewed your involvement in the Paolo 12 case, and particularly your agreement to provide a form 13 of review of Dr. Smith's work in that case to the Crown 14 and the defence and in the course of the Court of Appeal 15 proceedings. 16 Did you discuss your involvement in that 17 case with Dr. Young at any time? 18 DR. JAMES CAIRNS: I -- yeah, to the 19 best of my recollection, no, I did not. 20 MS. LINDA ROTHSTEIN: And is that because 21 he had already become more enmeshed in other obligations 22 or was that not the sort of thing that you took up with 23 him? 24 DR. JAMES CAIRNS: He -- he would have 25 been involved in other issues, but I suppose I had been
1511 on the case from the beginning and I'm -- I knew it in 2 much greater detail. 3 MS. LINDA ROTHSTEIN: Would you turn up 4 then the last tab of Volume IV, which is -- or it's the 5 second to last, excuse me, Tab 48, and as you know, Dr. 6 Cairns, this is a transcript from some testimony that you 7 gave in the case of Regina versus Fell (phonetic) and you 8 had an opportunity to review that transcript, have you 9 not? 10 DR. JAMES CAIRNS: Yes, I have. 11 MS. LINDA ROTHSTEIN: And I can tell you, 12 Dr. Cairns, as well as you, Commissioner, that this came 13 to our attention just last week and we -- the Canley 14 (phonetic) report of this case provides that Mr. Fell was 15 charged with first degree murder. 16 He was tried by Mr. Justice Dambrought 17 (phonetic) sitting as a Judge of the Superior Court of 18 Criminal Jurisdiction without a jury. And the Crown 19 alleged that Mr. Fell killed his mother by applying 20 several blows with a sledgehammer to her head in Toronto 21 on November 27th, 2000. 22 And because there was no formal admission 23 that the accused did in fact kill his mother, there was 24 no fact -- however, there was no dispute that he had, in 25 fact, done so. Rather the primary defence had been that
1521 he was not criminally responsible for the act of 2 delivering the blows to his mother that caused her death 3 because he was suffering from a mental disorder at the 4 time that rendered him incapable of appreciating the 5 nature and the quality of the act or of knowing that it 6 was wrong. 7 Do you remember that background, Dr. 8 Cairns? 9 DR. JAMES CAIRNS: I don't. 10 MS. LINDA ROTHSTEIN: Okay. 11 Alternatively, if he was criminally responsible, he took 12 the position that he was guilty only of manslaughter or, 13 at worst, second degree murder, taking into account his 14 mental condition. 15 However, it was of importance, despite the 16 fact that the accused wasn't in a position to deny that 17 he had in fact killed his mother, was that there were 18 some factualissues surrounding the actual offense that 19 were contested. 20 Do you remember that at least, Dr. Cairns? 21 DR. JAMES CAIRNS: Relationship to the 22 injuries the mother had? 23 MS. LINDA ROTHSTEIN: And the timing of 24 those injuries and the time of her death? 25 DR. JAMES CAIRNS: The only thing that I
1531 am aware of is potential timing -- timing of her death. 2 MS. LINDA ROTHSTEIN: And you were called 3 as a witness by the Crown in that case, as I understand 4 it? 5 DR. JAMES CAIRNS: That is correct. 6 MS. LINDA ROTHSTEIN: And indeed you were 7 qualified as an expert witness in that case? 8 DR. JAMES CAIRNS: In the field of 9 forensic medicine. 10 MS. LINDA ROTHSTEIN: Yes. In fact, if 11 we turn to page 1250, at the top, Commissioner. See if 12 you can get that. If you look at the page numbers at the 13 top, Registrar, it's about the 6th page in. Keep going, 14 that's it, there we go. 15 We have Ms. Richards, who was the Crown? 16 DR. JAMES CAIRNS: Correct. 17 MS. LINDA ROTHSTEIN: 18 "Your Honour, it is again the Crown's 19 respectful request to tender the 20 witness as an expert as the Crown 21 described". 22 THE COURT: "And the expertise you 23 said was?" 24 MS. RICHARDS: "Threefold, Your 25 Honour: As a physician, as a coroner,
1541 and as an expert in relation to timing 2 of death". 3 THE COURT: "All right." 4 Do you remember that -- 5 DR. JAMES CAIRNS: I do. 6 MS. LINDA ROTHSTEIN: -- Dr. Cairns? 7 DR. JAMES CAIRNS: Yes. 8 MS. LINDA ROTHSTEIN: And can you assist 9 us, is that the first time that you had been qualified as 10 not only a coroner and a physician, but also as an expert 11 on the time of death? 12 DR. JAMES CAIRNS: I have given expert 13 evidence related to the time of death in other criminal 14 proceedings. 15 MS. LINDA ROTHSTEIN: Now in this case 16 you gave opinions about various aspects of time of death, 17 as I review the transcript. Tell me if I have fairly 18 summarized it. 19 You gave evidence about lividity? 20 DR. JAMES CAIRNS: Correct. 21 MS. LINDA ROTHSTEIN: You gave evidence 22 particularly about the phenomenon of fixed lividity, and 23 the process of blanching the skin by wan -- by means -- 24 the means by which one (1) could determine whether the 25 lividity had been fixed?
1551 DR. JAMES CAIRNS: That's correct. 2 MS. LINDA ROTHSTEIN: You gave evidence 3 about rigor mortis? 4 DR. JAMES CAIRNS: In a -- in a generic 5 way, because it was not relevant to any of the opinion 6 evidence I was giving. But I think it's fair to say I 7 indicated the various methods that are used in attempting 8 to come to a time of death. 9 MS. LINDA ROTHSTEIN: And you talked 10 about body cooling and dispositio -- decomposition as 11 well? 12 DR. JAMES CAIRNS: That's correct. 13 MS. LINDA ROTHSTEIN: And, Commissioner, 14 I know you'll have an opportunity to read -- read this in 15 due course. It's certainly true, Dr. Cairns, that you 16 were very cautious about the opinions you expressed, and 17 you made clear to all those listening that it was very 18 difficult to be at all precise about time of death 19 conclusions, is that fair? 20 DR. JAMES CAIRNS: That is fair. 21 MS. LINDA ROTHSTEIN: Having said that, 22 and having had a recent opportunity to review your 23 evidence, are you confident that all of the opinions you 24 expressed would today be supported by the weight of 25 forensic pathology opinion?
1561 DR. JAMES CAIRNS: I -- I think the one 2 (1) thing that I was -- was coming out in my evidence, I 3 indicated that if the observation made -- made by the 4 coroner at the scene, Dr. Gilmore, if that observation 5 was that the livid -- that the lividity was fixed, then 6 if the lividity was fixed, that the person at the time 7 that Dr. Gilmore had examined them would have been dead 8 at least eight (8) hours, but could have been dead twelve 9 (12), fourteen (14), sixteen (16), eighteen (18), twenty 10 (20), whatever. 11 So I give that in my opinion at the time 12 of the examination by Dr. Gilmore, the person had been 13 dead at least eight (8) hours. 14 MS. LINDA ROTHSTEIN: But, Dr. Cairns, 15 are you conversant with the scientific literature on the 16 criteria in a fixed lividity, and it's correlation with 17 any time of death calculation? 18 DR. JAMES CAIRNS: Yes, I am. And I'm 19 aware that just about the time that I give this evidence, 20 there was a new book being developed. So the evidence 21 that I was giving was based on previous books by Demayo 22 (phonetic) and Spitz (phonetic), who were talking in 23 those textbooks, that lividity, -- if it becomes -- if it 24 becomes fixed, and it doesn't have to become fixed at 25 all, but if it became fixed, it became fixed somewhere
1571 between eight (8) and twelve (12) hours, or sometime 2 longer then that. 3 MS. LINDA ROTHSTEIN: Dr. Cairns, I don't 4 think it would be helpful for me to debate that point 5 with you at this stage. But having had the opportunity 6 to review your evidence, are you indeed confident that 7 all of the opinions you expressed, would today be 8 supported by the weight of forensic pathology opinions? 9 DR. JAMES CAIRNS: I think the evidence 10 today would be less. I actually thought that the defence 11 attorney in cross-examining me did a very good job at 12 establishing just with what strength -- or with what 13 strength of my opinion. 14 And I think he did a very good job of 15 bringing me through the things that were variable and -- 16 and me giving answers to that effect, which I think 17 reading it meant that I was giving an opinion, but I was 18 not being absolutely firm on that opinion. 19 And since then with the addition of some 20 more new textbooks, I would agree that I would -- would 21 not now have gone to the earlier figure that I did at 22 that time, although that earlier figure, I did admit at 23 that time could be -- could have been less than that. 24 And there was no argument, but it could 25 have been more. We agreed on that.
1581 MS. LINDA ROTHSTEIN: Quite apart from 2 what you said, do you accept that many forensic 3 pathologists might quarrel with someone with your 4 background providing evidence of that nature at all? 5 DR. JAMES CAIRNS: I feel that there's a 6 difference in the British system and our system in at 7 most -- at least in Ontario, most of the homicide scenes 8 are more likely to be attended by the coroner than they 9 are the forensic pathologist. 10 And if the forensic pathologist does not 11 attend the scene then they are not going to be in a 12 position to -- to make the ob -- observations. 13 MS. LINDA ROTHSTEIN: But -- but, Dr. 14 Cairns, there's a difference here that I think is 15 important with respect. 16 DR. JAMES CAIRNS: Yes. 17 MS. LINDA ROTHSTEIN: You were not giving 18 fact evidence, were you? 19 DR. JAMES CAIRNS: No, my -- I said, I 20 give my opinion on the assumption that the information 21 supplied by Dr. Gilmore (phonetic) was accurate. 22 MS. LINDA ROTHSTEIN: I understand that, 23 and so my question is this, sir. I accept that there may 24 well be occasions when the fact that a coroner had 25 attended the scene may mean that he is privy to direct
1591 observations that have to become the subject of testimony 2 in a courtroom criminal proceeding. So you and I don't 3 differ on that. 4 This is something else, do you understand 5 that, sir? 6 DR. JAMES CAIRNS: I do. 7 MS. LINDA ROTHSTEIN: This is expert 8 evidence. This is opinion evidence. 9 DR. JAMES CAIRNS: It's opinion 10 evidence. 11 MS. LINDA ROTHSTEIN: And indeed it's 12 opinion evidence that is fundamentally pathological. The 13 -- the domain of pathology, is it not? 14 DR. JAMES CAIRNS: It can be the domain 15 of pathology, certainly, if we're looking at histological 16 issues. It is not necessarily the domain if it -- you're 17 not having to rely on histological features, but what -- 18 what I -- what I would indicate to you is that if -- if I 19 make a diagnosis in clinical meds in that I think someone 20 has had a heart attack or that there's something wrong 21 with their -- their blood, and I get an expert's opinion; 22 that expert's opinion is going to carry more weight than 23 mine. 24 It does not mean that -- that I -- my 25 opinion may not have some validity. And that would be
1601 the way I would put it. 2 MS. LINDA ROTHSTEIN: So what you're 3 saying to the Commissioner is that you do not accept that 4 a time of death opinion should be provided by a forensic 5 pathologist and not by someone who isn't one? 6 DR. JAMES CAIRNS: No, that -- that's 7 not what I'm saying. If -- if they want to call a 8 forensic pathologist to give a time of death, I have no 9 issue with that whatsoever. 10 MS. LINDA ROTHSTEIN: No, I understand 11 that, I do. And I don't -- I don't mean to be 12 interrupting you, sir. But my suggestion to you, sir, is 13 that a forensic pathologist would say that only a 14 forensic pathologist should be expressing an opinion on 15 time of death. 16 Do you agree or disagree with that 17 proposition? 18 DR. JAMES CAIRNS: I'm probably 19 somewhere in the middle. 20 COMMISSIONER STEPHEN GOUDGE: What does 21 that mean? 22 DR. JAMES CAIRNS: That means I don't 23 necessarily entirely agree. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
1611 MS. LINDA ROTHSTEIN: Because...? 2 DR. JAMES CAIRNS: Because it is -- it 3 is not based on anything -- it is based on -- and in 4 fact, time of death is fraught with errors, and I wasn't 5 giving a time of death, by the way. I was just saying 6 the person, in my opinion, was dead at approximately -- 7 at least eight (8) hours, but they could have been dead 8 twenty-four (24) hours, so that's not a time of death. 9 MS. LINDA ROTHSTEIN: Well, it's a range 10 on that issue. 11 DR. JAMES CAIRNS: It was -- it was the 12 -- the lower range and there was no upper range at all. 13 MS. LINDA ROTHSTEIN: Sir, every time of 14 death opinion or -- I may not overstate, Dr. Cairns, it's 15 unfair, but you're -- you respect and understand that 16 time of death opinions are almost always expressed within 17 a range? 18 DR. JAMES CAIRNS: They can only be 19 expressed in a range with certain parameters. All I 20 would have been able to say, and I didn't even do that, 21 was that the -- if the lividity was fixed, in my opinion 22 it would take at least eight (8) hours for that to happen 23 but it could have taken twelve (12) hours. It could have 24 taken eighteen (18) hours. It could have taken twenty- 25 four (24) hours, and it could have taken right up to the
1621 time of decomposition. So, in terms of this, there was 2 absolutely no way that I could give the upper range at 3 all and I never attempted to do so. 4 MS. LINDA ROTHSTEIN: And you're not 5 sure, if I hear you correctly, whether or not you agree 6 with those who argue that unless one has formal training 7 in forensic pathology, one ought not to be expressing 8 their opinion of that nature at all? 9 DR. JAMES CAIRNS: I'm not necessarily 10 agreeing with that. 11 MS. LINDA ROTHSTEIN: And so indeed is 12 the systemic issue -- I know, sir, you are due to retire 13 in the New Year, is that right? 14 DR. JAMES CAIRNS: That's correct. 15 MS. LINDA ROTHSTEIN: What advice would 16 you give to your successor on this issue; of whether 17 someone who occupies the office of the Deputy Chief 18 Coroner should be called as an expert witness on a 19 pathology issue such as time of death? 20 DR. JAMES CAIRNS: I'm going to advise 21 my successor to listen to the recommendations that the 22 Commissioner comes up with. 23 MS. LINDA ROTHSTEIN: Okay, Dr. Cairns, I 24 accept that. 25 COMMISSIONER STEPHEN GOUDGE: Would you
1631 be troubled at all by a coroner making the same view 2 known in the coroner's report? 3 DR. JAMES CAIRNS: In -- 4 COMMISSIONER STEPHEN GOUDGE: That is, a 5 range of time of death or -- 6 DR. JAMES CAIRNS: In -- 7 COMMISSIONER STEPHEN GOUDGE: I mean, I 8 guess what I am getting at, Dr. Cairns, is in the coroner 9 system would you expect the range of opinion about time 10 of death to come from the pathologist, not the coroner? 11 DR. JAMES CAIRNS: In the coroner's 12 report -- what we tell our coroners if they're going to a 13 scene, can they record whether or not lividity is 14 present; how well it is developed; is it fixed or is it 15 not fixed; is there rigor-mortis and how much rigor- 16 mortis there is. In the past, we used to recommend that 17 they do rectal temperatures; that has all gone by the 18 wayside. 19 And basically, in forensic medicine 20 probably -- I have testified at criminal trials, we're 21 asked by the Crown, When do you think this man died? And 22 I've said, His body -- he was last seen alive at 4:00 23 p.m. on Friday and his body was discovered at 10:00 a.m. 24 on Saturday, I think he died somewhere in between. And 25 that really is the state of -- of the time of death in
1641 forensics. 2 On an in -- now, in my testimony, I did 3 make clear that this is fraught with -- with conjecture 4 and we talked about the Truscott case and all the rest of 5 it. So time of death is a very complex issue no matter 6 how well qualified you are. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: And, Dr. Cairns, 10 just to finish this point. I noticed when we reviewed 11 your curriculum vitae yesterday, that on the last page 12 you made note of the fact that you've indeed been 13 qualified as an expert witness in all level of courts and 14 at coroner's inquests. 15 Can you give the Commissioner a sense of 16 the other sorts of opinions you have expressed as an 17 expert witness on those occasions? 18 DR. JAMES CAIRNS: I have given opinion 19 on whether I felt it was a knife wound, whether it was a 20 stab wound, whether it was a laceration. I've given an 21 opinion whether I thought it was an entrance wound or an 22 exit wound. Those are some of the -- the issues that -- 23 for example. 24 MS. LINDA ROTHSTEIN: And again, you 25 don't accept that one who is required to give such an
1651 opinion in court ought to be one who has been formally 2 trained as a forensic pathologist? 3 DR. JAMES CAIRNS: Had the court 4 indicated that, I would have accepted that. I'm not the 5 one that qualified myself as an expert witness. I 6 indicated what I had done and the court indicated, I will 7 allow you to talk in that regard. 8 MS. LINDA ROTHSTEIN: Dr. Smith -- sorry, 9 Dr. Cairns, I'm struggling with that, with respect. 10 Do you think that most judges; do you 11 think that most lawyers understand the differences that 12 have been very much in debate in this public inquiry over 13 the last two (2) weeks? Do they -- 14 DR. JAMES CAIRNS: I -- 15 MS. LINDA ROTHSTEIN: -- understand where 16 forensic pathology starts and ends and where general 17 medicine starts and ends and what intersects between 18 them? Do you think they know that? 19 DR. JAMES CAIRNS: I made it perfectly 20 clear any time that I testified that I was not a foren -- 21 I was not a pathologist, period. I was coming at this 22 from what I could examine from the outside of the body; 23 that I had been doing it for a number of years. 24 And I accept, if you go back to the '70s, 25 you could be classified as an expert either by your
1661 examinations or by your training and how much you had 2 been doing it. And I agree entirely that was the way it 3 was then and, in fact, there were many of the 4 pathologists who were testifying in this Province in the 5 '70s and the '80s -- were a pathologist -- but they had 6 no training, and they were accepted as experts in 7 forensic pathology because they had been doing it for a 8 significant length of time. 9 That very issue is extremely important 10 because when Dr. Chiasson took over as the Chief Forensic 11 Pathologist, the main issue that forensic pathology was 12 having in this Province is that nobody had been 13 appropriately trained in the sub-specialty of forensic 14 pathology. 15 And with the -- the '90s coming in, it was 16 considered that it would no longer be an appropriate way 17 to go about having somebody who was a generalist that had 18 done some training, and we were insisting that our 19 forensic pathologists go and have their sub-specialised 20 training. 21 MS. LINDA ROTHSTEIN: Mm-hm. 22 DR. JAMES CAIRNS: I think that's part 23 of the reason why, unfortunately to this day, we still 24 have a severe drought of foren -- of properly trained 25 forensic pathologists.
1671 MS. LINDA ROTHSTEIN: And so we don't 2 misunderstand, how recently were you in the custom of 3 giving that kind of evidence? 4 DR. JAMES CAIRNS: I -- I -- I stopped 5 giving that type of evidence with -- I think, the 6 exception of the case you referred to, once I became the 7 Deputy Chief Coroner because I was giving evidence prior 8 to that in actual homicide cases where I had been 9 involved, where I had been to the scene, where I had made 10 observations. 11 For example, at one (1) of the scenes, I 12 made the observation that the individual had been killed 13 at the scene, not killed elsewhere and dumped there. And 14 I made that observation because I interpreted that there 15 was an entrance wound on the top side of the head; on the 16 other side, which was next to the ground, was an exit 17 wound, and when the police excavated they found the 18 bullet there, so that was the type of -- of things -- 19 things that I were directly involved with. 20 MS. LINDA ROTHSTEIN: Okay. So after 21 1991, you ceased providing that kind of expert evidence 22 in criminal cases, is that -- 23 DR. JAMES CAIRNS: That's correct. 24 MS. LINDA ROTHSTEIN: All right. What 25 about other coroners, can you assist the Commissioner
1681 with that? 2 DR. JAMES CAIRNS: I -- I -- I can't -- 3 MS. LINDA ROTHSTEIN: Post '91, do you 4 know how frequent it oc -- how frequently it occurred 5 that a coroner gave evidence about whether it was a knife 6 wound or what kind of wound it was; can you assist him 7 with that, please? 8 DR. JAMES CAIRNS: I know that there are 9 a number of coroners who have still given evidence. It 10 would be primarily outside Toronto and it may have been in 11 a jurisdiction where the pathologist was not a forensic 12 pathologist and felt there was some assistance, but I 13 would agree with you it is -- it is not common; it is a 14 rare situation. 15 MS. LINDA ROTHSTEIN: And recently what 16 advice has been given to coroners from the OCCO about the 17 propriety of doing that sort -- or giving that sort of 18 evidence? 19 DR. JAMES CAIRNS: I'm not aware, and I 20 maybe -- that there's been any advice one (1) way or the 21 other. 22 MS. LINDA ROTHSTEIN: Okay. 23 DR. JAMES CAIRNS: I think -- 24 COMMISSIONER STEPHEN GOUDGE: May I just 25 ask a couple of questions, Ms. Rothstein?
1691 Going forward, Dr. Cairns -- well, let me 2 start again. Implicitly, I hear you saying, I drew my own 3 line at the point where histology might be necessary to 4 bring into play in order to give the opinion I was being 5 asked and I would not do that, but if what I was being 6 asked drew on what I observed at the scene, I felt 7 comfortable in giving my opinion. 8 DR. JAMES CAIRNS: That's correct, 9 Commissioner, I would not -- I would give opinion on what 10 I saw on the surface of the body; I would take it further. 11 Once the body was opened, I would not be giving an opinion 12 about the heart or anything else, so I would restrict my 13 opinion to what observations I could make externally and 14 certainly nothing to with histopathology. 15 COMMISSIONER STEPHEN GOUDGE: And if you 16 felt, as a medically-trained doctor, although not a 17 pathologically-trained doctor, you could give the opinion 18 you were being asked for, you would do it based on an 19 external observation. 20 DR. JAMES CAIRNS: Yes, I would. 21 COMMISSIONER STEPHEN GOUDGE: Is that a 22 good place -- is that a good bright line to draw going 23 forward? That is, how -- I'm looking forward and just 24 asking for your views about where one draws the line and 25 what Court should take as their norm in seeking expertise
1701 from various sub-specialties in medicine. 2 DR. JAMES CAIRNS: I -- I think in the 3 '90s that this very issue has been addressed in terms of 4 not only are you a pathologist -- are you a forensic 5 pathologist -- so there is an increasing recognization of 6 the necessity to be extra super qualified in -- in the 7 areas in question. 8 And I think that applies not only to 9 pathologists, but it would apply to coroners and, 10 therefore, I would not be surprised of the -- the habit of 11 them saying, I'm not -- all I'm going to do is about of 12 the scene. I'll say, I saw a hole here and I saw a hole 13 there, and I don't know what they mean. 14 And certainly, I would imagine if there are 15 many coroners listening to my testimony, the chances of 16 them giving an opinion of evidence in the future would be 17 reduced immediately, but I -- Commissioner, I accept what 18 you're saying entirely. 19 And the -- there is much lessening of that 20 because of the advances in experts in forensic pathology. 21 COMMISSIONER STEPHEN GOUDGE: I suppose 22 that's a small increase in the availability of 23 pathologists, and a great increase in the degree to which 24 expert pathology can give a more refined opinion? 25 DR. JAMES CAIRNS: Yes. I would probably
1711 indicate it somewhat in a historical nature, because this 2 was in certain ways, a historical nature. When -- when I 3 first came to Canada in 1972, in Brampton, general 4 practitioners were doing appendectomies, they were doing 5 tonsillectomies, they were doing all of these things; none 6 of them would be doing that now. 7 So it was an evolution from a generalist to 8 a specialist, and it's along -- along those lines. 9 COMMISSIONER STEPHEN GOUDGE: Thank you. 10 Thanks, Ms. Rothstein. 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Thank you very much. 14 So I want to continue to take the story, sort of, to the 15 end if we can with you, Dr. -- Dr. Cairns. We've -- we've 16 gone through the fall of 2002, and if you look at your 17 chronology page 11, you'll recall as we've touched on this 18 morning, that the fall of '02 was when the Kporwodu matter 19 became important, and you filed your affidavit material as 20 I've discussed with you. 21 And you'll remember that in November and 22 December the trial resumed, and Justice Trafford 23 ultimately ruled on the Phase I application with respect 24 to the CPSO files, finding that the application would 25 proceed to Phase II.
1721 Your testimony, as we've covered, was in 2 November 28 and 29 of that year, you'll recall. And so at 3 that stage, as I understand it, there weren't really any 4 changes to Dr. Smith's status, vis-a-vis his work for the 5 OCCO, is that right? 6 DR. JAMES CAIRNS: He was -- he was still 7 performing coroner's autopsies at Sick Kids, providing 8 they were not of a criminal or suspicious nature. With 9 the exception of one (1) case that he did do which was of 10 a criminal nature. 11 MS. LINDA ROTHSTEIN: And can you tell the 12 Commissioner about that? 13 DR. JAMES CAIRNS: This was a -- about a 14 one (1) year old, and I may be -- I may be out in the age 15 -- who had been left in the summer in a crib on a hot 16 summer's night of about 80 or 90 degrees; left for an 17 extended period of time alone while the mother went 18 dancing. 19 And the child was found the next day dead, 20 in a room of at about 100 degrees, and the child was 21 grossly dehydrated. On that particular weekend, there was 22 no pathologist available except Dr. Smith. 23 This was very much a medical case. 24 Although forensic, it was very much medical. It was, How 25 does a child become dehydrated? Pediatric pathologists
1731 are well accustomed to doing autopsies of that nature. So 2 did this child become dehydrated because the child had 3 been vomiting, or had not been drinking enough fluids, or 4 because the child had diarrhea? 5 And after much discussion with the Toronto 6 Homicide Bureau, and given the fact that the child, 7 unfortunately, was starting to decompose, we felt we would 8 allow Dr. Smith to do that autopsy. 9 Because although it was criminal in nature, 10 the type of autopsy was more suited to a pediatric 11 pathologist then a forensic pathologist. We discussed it 12 in great detail. We all attended the autopsy. We made 13 sure all notes, et cetera, et cetera were taken. 14 And the conclusion was that the child had 15 died of dehydration, and all the other -- and yet there 16 was no evidence of natural disease to explain it. The 17 other police evidence indicated that this person had been 18 absent and that the child had been left, I think, with one 19 (1) bottle of -- of milk. 20 And so the issue that the dehydration was 21 due to the high temperature and lack of fluids was 22 concluded on that basis. There were a number of days 23 later, an opportunity for that autopsy to be reviewed by 24 Dr. Chiasson, and it was felt no -- there was no need to 25 go any further with it. A -- a trial did pursue following
1741 that. It was indicated by Dr. Smith had done it, and 2 there were no issues. 3 And I am aware that the panel of experts -- 4 this was one (1) of the fifty (50) cases that they 5 reviewed, and they had -- they had no issues to arise out 6 -- out of his performing of that autopsy. And that was 7 the only one (1). That was done as an exception due to 8 extreme circumstances. 9 COMMISSIONER STEPHEN GOUDGE: Who 10 attended; you and, did Dr. Chiasson attend? 11 DR. JAMES CAIRNS: Dr. Chiasson would 12 have done it, only Dr. Chiasson was not available that 13 weekend. 14 COMMISSIONER STEPHEN GOUDGE: So when you 15 say, "we all attended"? 16 DR. JAMES CAIRNS: My recollection is 17 that Dr. Huyer attended, as well, and the others would 18 have been senior officials from the Toronto Homicide 19 Bureau, and Dr. Smith. 20 And we discussed it all in advance in terms 21 of wha -- would this be appropriate, would it not be 22 appropriate and made a valued judgment given the state of 23 the body that this -- this was, we would have called this, 24 normally, a hospital autopsy, but with criminal overtones. 25 But that the features to be identified of
1751 the autopsy would be those that you would be doing in a 2 hospital autopsy of a child who died from gastroenteritis. 3 COMMISSIONER STEPHEN GOUDGE: Through this 4 period, who decided case-by-case which cases were 5 criminally suspicious and which were, although under 6 warrant, cases that Dr. Smith would be permitted to do? 7 DR. JAMES CAIRNS: If there was any suspi 8 -- discussion that it was criminally suspicious he would 9 not be -- he would not be doing it. 10 COMMISSIONER STEPHEN GOUDGE: Who made the 11 call, though? 12 DR. JAMES CAIRNS: The calls would have 13 been made by the -- by the Coroner who was asking for it. 14 And -- and by the police, and by Dr. Smith himself, and by 15 other members in the department. 16 COMMISSIONER STEPHEN GOUDGE: Dr. 17 Chiasson? 18 DR. JAMES CAIRNS: Dr. Chiasson, if -- if 19 the -- called him in, he was not physically present in 20 Sick Kids, but there -- there would be on occasions a 21 call-over, Is this a case I can do or do you want to pass 22 it on to someone else? 23 COMMISSIONER STEPHEN GOUDGE: Right. What 24 about a SIDS case? 25 DR. JAMES CAIRNS: A SIDS case. If
1761 everything at the time of a start of the autopsy where 2 there were no concerns and it was felt this was going to 3 be a SIDS, Dr. Smith could start that autopsy, and if 4 something arose during the autopsy, he was to stop 5 immediately and contact someone else. 6 COMMISSIONER STEPHEN GOUDGE: Did that 7 ever happen? 8 DR. JAMES CAIRNS: Yes, it -- it did 9 happen. And it was stopped. And to go forward a bit just 10 because I think it -- it finishes this bit of evidence, 11 and I know you're going to come to it -- 12 COMMISSIONER STEPHEN GOUDGE: Sorry, you 13 are going to -- 14 MS. LINDA ROTHSTEIN: Mm-hm. Keep going. 15 DR. JAMES CAIRNS: -- but in 2003, 16 particularly Dr. Chiasson, who was the one to take these 17 cases over when something came up that was not apparent 18 until the autopsy was started -- Dr. Chiasson was taking 19 over these cases, and he then indicated he was -- he would 20 -- he intended not to do that anymore because, although, 21 what Dr. Smith may have done up to that time was perfectly 22 correct, and he had no issues; the -- just the fact that 23 Dr. Smith's name appeared on the report was -- was likely 24 to be a lightening rod and, therefore, he did not want to 25 continue any autopsy that Dr. Smith had started.
1771 COMMISSIONER STEPHEN GOUDGE: So what 2 happened? 3 DR. JAMES CAIRNS: Dr. Smith stopped 4 doing all autopsies. 5 MS. LINDA ROTHSTEIN: We'll come to that 6 meeting, Commissioner. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 Sorry. 9 DR. JAMES CAIRNS: I'm sorry, I know I'm 10 going ahead. 11 COMMISSIONER STEPHEN GOUDGE: Sorry, I -- 12 MS. LINDA ROTHSTEIN: No, it's okay. 13 DR. JAMES CAIRNS: It was just to gi -- 14 to give you the flow. 15 COMMISSIONER STEPHEN GOUDGE: Okay. 16 17 CONTINUED BY MS. LINDA ROTHSTEIN: 18 MS. LINDA ROTHSTEIN: That's fine. But -- 19 but just to step back for a moment 'cause there's one (1) 20 thing I've been curious about. We don't have anything in 21 our database that reflects any written communication from 22 the Office of the Chief Coroner to individual coroners, 23 Regional Supervising Coroners, letting them know the 24 status of Dr. Smith's relationship with the OCCO. 25 Nothing that says, don't send criminally
1781 suspicious deaths to him or if it's potentially a 2 criminally suspicious death, some other pathologist will 3 have to be contacted. 4 Do you remember anything being formalized; 5 put in writing in that way? 6 DR. JAMES CAIRNS: Like you, I have 7 looked, and I cannot find anything on paper that -- that 8 states what I've just told you. I can tell you that's 9 with the Department of Pathology at Sick Kids, and 10 particularly with the Toronto police, and our office, and 11 the Regional Coroners, that's what it was. 12 But I ca -- I can't and I -- and I agree 13 with you. It -- I'm saying, I can't find the document. I 14 think it's more likely there never was such a document. 15 MS. LINDA ROTHSTEIN: So you and Dr. 16 Young were relying on word of mouth to get out that 17 message? 18 DR. JAMES CAIRNS: We were relying on the 19 people that were going to be involved and also the other 20 thing is that the pathology assistants at Sick Kids were 21 also aware of the type of cases that should or should not 22 -- and that if one (1) started that he was going to 23 continue that they were to contact us as well. 24 MS. LINDA ROTHSTEIN: But in effect, you 25 were relying on word of mouth?
1791 DR. JAMES CAIRNS: You're absolutely 2 right. 3 MS. LINDA ROTHSTEIN: It's rather 4 unsatisfactory, is it not, in the -- 5 DR. JAMES CAIRNS: Yes, it -- 6 MS. LINDA ROTHSTEIN: -- circumstances? 7 DR. JAMES CAIRNS: Yes, it is. 8 MS. LINDA ROTHSTEIN: All right. Let's 9 just continue the chronology, if we can, into 2003. We 10 know that Maurice Gagnon, in February, took some steps in 11 which he indicated that he wished to initiate a civil 12 action. 13 I understand that was something that was 14 largely dealt with by Dr. Young and not you, is that fair? 15 DR. JAMES CAIRNS: That's correct. 16 MS. LINDA ROTHSTEIN: And we know that Dr. 17 Young was in communication directly with the Complaints 18 Committee at the College of Physicians and Surgeons. 19 And again those questions are more properly 20 asked of him, are they not, Dr. Cairns? 21 DR. JAMES CAIRNS: I think that's 22 probably more appropriate. 23 MS. LINDA ROTHSTEIN: All right. 24 We also know, as you and I discussed this 25 morning but it's not on this chronology, that on June 23
1801 of 2003, Justice Trafford made his determination that, in 2 fact, the defence application to have the charges stayed 3 on the basis of unreasonable delay should be upheld. 4 Do you remember that? 5 DR. JAMES CAIRNS: I do. 6 MS. LINDA ROTHSTEIN: All right. And we 7 also know that Mr. O'Marra prepared some notes of a 8 meeting dated October 2, 2003, in which Dr. Smith was 9 invited to attend, and there was some considerable 10 decision-making that arose as a result of that meeting. 11 You've seen those? 12 DR. JAMES CAIRNS: Yes, I have. 13 MS. LINDA ROTHSTEIN: All right. So can 14 you assist us, before we get to the details of that 15 meeting, as to what, if anything, you remember being the 16 catalyst for that discussion with many members of the 17 senior management of the OCCO and Dr. Smith? 18 DR. JAMES CAIRNS: I've already mentioned 19 talking to the Commissioner about the -- the concern that 20 Dr. Chiasson and others were expressing about having to 21 take over a case. There were also members of my Pediatric 22 Review Committee who felt although they did not feel that 23 Dr. Smith on the committee, in and of itself, was a 24 problem but they felt that his name at that time was such 25 a lightning rod that the opinion of the Committee may be
1811 valued less if Dr. Smith -- his name was there. 2 And likewise with the Death Under Two. Not 3 that there was going to be a concern of a real problem but 4 the -- the appearance of an issue and the fact that he was 5 an absolute lightning rod. Discussion was, We've got to 6 let go all ties with Dr. Smith. 7 MS. LINDA ROTHSTEIN: Do I hear you say 8 that there were pressures from others -- Dr. Chiasson, 9 members of your committee -- to do something more than 10 had, at that stage, been done to deal with Dr. Smith? 11 DR. JAMES CAIRNS: There were those 12 pressures and the pressures were probably added to by the 13 continuing saga in all the newspapers. Yes. 14 MS. LINDA ROTHSTEIN: And so if you would 15 be good enough, sir, to turn up Tab 37 of Volume IV, and 16 that's 139992. 17 Dr. McLellan, you'll recall, Commissioner, 18 has given us a bit of evidence about this since he was in 19 attendance. If you scroll up to the top of the page; of 20 the first page. I think we've been able to decipher that 21 this was a meeting that was attended by Dr. Charles Smith. 22 DR. JAMES CAIRNS: Sorry, Ms. Rothstein, 23 what tab? 24 MS. LINDA ROTHSTEIN: Sorry. It's at Tab 25 37.
1821 DR. JAMES CAIRNS: Thirty-seven (37), 2 thank you. 3 MS. LINDA ROTHSTEIN: It's a meeting, 4 10:02:03, which, Commissioner, we understand to be October 5 2, 2003. Is that your recollection, Dr. Cairns? 6 DR. JAMES CAIRNS: That's correct. 7 MS. LINDA ROTHSTEIN: And it's attended by 8 Dr. Charles Smith, Dr. McLellan, Dr. Young, you, Dr. 9 Porter and Al O'Marra? 10 DR. JAMES CAIRNS: That -- that's 11 correct. 12 MS. LINDA ROTHSTEIN: And if you go to the 13 last page, 8, one (1) of the easier sentences to read is 14 the one (1) which says: 15 "Decision by all [underlined] present, 16 he can't continue M-LPMs or committee 17 work, i.e., Death Under Two or PDRC." 18 I take it that means he can't continue 19 medicolegal post-mortems or committee work, Death Under 20 Two or PDRC? 21 DR. JAMES CAIRNS: That's correct. 22 MS. LINDA ROTHSTEIN: All right. And so-- 23 COMMISSIONER STEPHEN GOUDGE: I cannot 24 find that on the page. 25 MS. LINDA ROTHSTEIN: On the last -- on
1831 page 8, Commissioner. It's the back page -- 2 COMMISSIONER STEPHEN GOUDGE: Oh, okay. 3 MS. LINDA ROTHSTEIN: -- 139 -- 4 COMMISSIONER STEPHEN GOUDGE: Yes. 5 MS. LINDA ROTHSTEIN: -- 992/8. 6 COMMISSIONER STEPHEN GOUDGE: Got it. 7 Yeah. 8 MS. LINDA ROTHSTEIN: And it's a little 9 asterisk. 10 COMMISSIONER STEPHEN GOUDGE: Yes. Got 11 it. Thanks. 12 MS. LINDA ROTHSTEIN: Okay. 13 COMMISSIONER STEPHEN GOUDGE: Thank you. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: You've had an 17 opportunity to review these minutes, have you not? 18 DR. JAMES CAIRNS: I have. 19 MS. LINDA ROTHSTEIN: Have they assisted 20 you in refreshing your memory about what was discussed 21 during that meeting? 22 DR. JAMES CAIRNS: Very much so. 23 MS. LINDA ROTHSTEIN: All right. Start -- 24 start at the beginning with us if you will, Dr. Cairns. 25 What was Dr. Smith being asked? What was he saying, for
1841 the portion he attended? To the best of your 2 recollection. 3 DR. JAMES CAIRNS: I -- I'll -- my 4 recollection comes purely from -- I mean, my recollection 5 will be better with the notes. But he -- he was not 6 agreeing, and I think there's somewhere in here when it's 7 translated, where Dr. Young uses the phrase, Charles, 8 you're a lightening rod. No matter what you do, no matter 9 how well you do it, you're a lightening rod, and there 10 ain't -- we can't get away from that. 11 And I'm paraphrasing, but I -- that's, I 12 think, a rough translation. 13 MS. LINDA ROTHSTEIN: Okay. And apart 14 from the fact that that was what was said to Dr. Smith, is 15 that what you believed; that he was a lightening rod? 16 DR. JAMES CAIRNS: Yes. 17 MS. LINDA ROTHSTEIN: And here's the 18 question, Dr. Cairns, was that your primary concern, or 19 was it that you did not think he should be trusted to do 20 this work any more? 21 DR. JAMES CAIRNS: I think it was -- he 22 could not -- I wouldn't -- we weren't trusting him to do 23 the work anymore -- although in a certain sphere he seemed 24 to be doing the work appropriately -- but that he 25 shouldn't be doing anything.
1851 In other words, this was the last straw. 2 MS. LINDA ROTHSTEIN: What was? Why? 3 DR. JAMES CAIRNS: The combination of the 4 media, the combination of the concerns being expressed -- 5 particularly being expressed by other pathologists that 6 the things we had in place -- that if he was doing a 7 normal autopsy that suddenly turned abnormal -- their 8 reluctance to say, I'll take over the case meant that he 9 couldn't do anything. 10 COMMISSIONER STEPHEN GOUDGE: That was Dr. 11 Chiasson who personified that concern? 12 DR. JAMES CAIRNS: It was, in particular, 13 Dr. Chiasson, Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: So do I hear you to 18 say that certainly a very significant concern, if not the 19 primary one (1), was the lightening rod aspect of 20 continuing to use Dr. Charles Smith? 21 DR. JAMES CAIRNS: I think Dr. Chiasson 22 may have put it as strongly that if he starts an autopsy, 23 I'm not going to take it over. 24 MS. LINDA ROTHSTEIN: Then the answer to 25 my question is "yes"?
1861 DR. JAMES CAIRNS: And I -- the reason 2 for that would have been the lightening rod effect as far 3 as Dr. Chiasson was concerned; that if this turned out to 4 be a criminal case, he could see himself on the witness 5 stand arguing for three (3) or four (4) hours about what 6 Dr. Smith did or didn't do even if he'd done absolutely 7 everything that Dr. Chiasson -- and Dr. Chiasson felt that 8 he had enough on his plate without having to argue that 9 issue as well. 10 MS. LINDA ROTHSTEIN: Okay. And if we 11 turn again to the last page, Dr. McLellan has taken us 12 through this, at least, a little. You'll see that there 13 are some numbers there at the top of page 8. 14 Do you see that, Dr. Cairns? 15 "No insight into problems; deflects all 16 criticism to failings of others. Barry 17 McLellan is standard with his recent 18 description of recent SIDS case and 19 claimed he wanted to stop." 20 Can you assist us as to who was putting 21 forward that position? Do you remember? 22 DR. JAMES CAIRNS: I'm sorry, which 23 position? 24 MS. LINDA ROTHSTEIN: The -- the 25 suggestion that Dr. Smith, I take it, lacked insight into
1871 the problems? 2 DR. JAMES CAIRNS: It was clear during 3 that meeting that even though these were colleagues who 4 knew him, that he would not accept any of the criticisms 5 that were being put to him. 6 We felt that he just had no insight at all 7 since he wouldn't listen to things that were pretty strong 8 and concrete by this stage. 9 MS. LINDA ROTHSTEIN: Things that were 10 being put to him in the course of this meeting with him? 11 DR. JAMES CAIRNS: Being put to in the 12 course of this meeting, and being put to him in the course 13 of things in the past, and to go back to the Jenna case 14 where he was blaming the police officer. 15 But this -- this would have been at this 16 meeting, summarizing for him the various things that -- 17 and where exactly they were at. 18 MS. LINDA ROTHSTEIN: All right. And then 19 you told us about the lightening rod effect which appears 20 to be the second numerated factor on that page 8. And 21 then the last one, Number 3; it's cut off on the page 22 there, but I believe it says: 23 "Greatly inflated sense of self- 24 expertise. Only one who can effect 25 quality control on pediatric pathology
1881 cases. Disasters will occur without his 2 involvement even in reviews." 3 Is that -- is that fair? Is that what was 4 said? 5 DR. JAMES CAIRNS: That looks -- your 6 interpretation of the writing sounds good to me. 7 MS. LINDA ROTHSTEIN: What do you remember 8 about that, Dr. Cairns, who said that? Was that a 9 consensus? 10 DR. JAMES CAIRNS: I -- who said it? I 11 can tell you this would be different people at the meeting 12 peppering him with questions on these issues and that this 13 was the consensus of all those present with regard to his 14 responses. 15 MS. LINDA ROTHSTEIN: It was your view, as 16 well, at that stage? 17 DR. JAMES CAIRNS: It was my view, as 18 well, at that stage, yes. 19 COMMISSIONER STEPHEN GOUDGE: And do 20 recall his response being that it would disastrous without 21 his involvement? 22 DR. JAMES CAIRNS: Yes, that if he wasn't 23 there it was going to happen to whoever took over from 24 him. 25 COMMISSIONER STEPHEN GOUDGE: What was
1891 going to happen? 2 DR. JAMES CAIRNS: That there would be 3 more disasters if he wasn't there. 4 COMMISSIONER STEPHEN GOUDGE: Okay. So I 5 take it there was a significant debate between all of you 6 and Dr. Smith about his pathology competence? 7 DR. JAMES CAIRNS: I think that's a fair 8 -- a fair accurate description, yes, Commissioner. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: So -- and I -- and 12 to be fair, I think what Dr. McLellan told us, see if you 13 agree, is that this discussion that appears to be recorded 14 starting on page 8, was a discussion which took place 15 after Dr. Smith left the meeting? 16 That was -- there was some discussion 17 afterwards about it. Is that your recollection as well? 18 DR. JAMES CAIRNS: Yes. I think Dr. 19 Smith attended the meeting for a full hearing and when 20 that full hearing had been completed, Dr. Smith left while 21 everybody then had a discussion about what were we going 22 to do and why were we going to do it. 23 And I think that page 8 reflects at the end 24 of that discussion the decisions that were made and the -- 25 there's significant reasons as to why they were made.
1901 MS. LINDA ROTHSTEIN: So having reached 2 the decision, which appears to have been unanimous, that 3 Dr. Smith oughtn't to continue doing any coroner's work or 4 committee work, who was responsible for communicating that 5 to him? 6 DR. JAMES CAIRNS: Dr. Young. 7 MS. LINDA ROTHSTEIN: So you can't assist 8 us to -- as to when that occurred or what was said? 9 DR. JAMES CAIRNS: I can't assist you 10 from direct recollection. I -- there may be some -- I may 11 have seen something in the file, but if I have it's 12 related to Dr. Young. 13 MS. LINDA ROTHSTEIN: Okay. Did you speak 14 to Dr. Smith after that happened? After he learned the 15 bad news? 16 DR. JAMES CAIRNS: No. 17 MS. LINDA ROTHSTEIN: He didn't call you? 18 DR. JAMES CAIRNS: No. It was -- there - 19 - there wasn't room for calling. This wasn't a debatable 20 issue. 21 MS. LINDA ROTHSTEIN: And then the other 22 matter that I thought we should touch on at least, Dr. 23 Cairns, was the issue that arose out of the Valin case in 24 2004, and the need to go to Dr. Smith's office to collect 25 the histological material in the hope that the slides and
1911 tissue blocks and so on could be found there. 2 I understand that you were involved in 3 attending in his office in November of 2004 for that 4 purpose. 5 DR. JAMES CAIRNS: That's correct. 6 Crown law, criminal, had indicated to our 7 office that they had attempted on many occasions to get 8 the necessary slides and blocks to no avail, and that it 9 was essential that they be obtained because the defence 10 wished Dr. -- Bernard Knight to review them. 11 And so having themselves failed on a 12 significant number of occasions, they asked the Chief 13 Coroner's Office could they do so -- to pursue that. 14 Dorothy Swolakowski, who was then my 15 Executive Officer, and myself, went to Sick Kids to talk 16 to Dr. Smith about this and to indicate to him the 17 significance and the seriousness of us having to find 18 those specimens. 19 MS. LINDA ROTHSTEIN: Tell us about that 20 meeting, please. 21 DR. JAMES CAIRNS: The meeting initially 22 was held in the pathology boardroom because there wasn't 23 room to sit down in Dr. Smith's office. 24 MS. LINDA ROTHSTEIN: And how long before 25 this had it been that you had last seen him?
1921 DR. JAMES CAIRNS: I can't give you -- 2 MS. LINDA ROTHSTEIN: Months? Weeks? 3 DR. JAMES CAIRNS: In -- in seeing -- I 4 mean, I was over at Sick Kids with other pathologists. I 5 was over to Sick Kids for ICU. So I may have seen him, 6 Hi, how are you, but I haven't -- I wasn't seeing him in - 7 - in relationship to having a meeting about pathology. 8 So this was a specific meeting: Dr. Smith, 9 we need to sit down with you. 10 COMMISSIONER STEPHEN GOUDGE: Give me the 11 approximate date. 12 MS. LINDA ROTHSTEIN: November the 26th, 13 2004. 14 COMMISSIONER STEPHEN GOUDGE: Thank you. 15 16 CONTINUED BY MS. LINDA ROTHSTEIN: 17 MS. LINDA ROTHSTEIN: And just so we're 18 clear, Dr. Cairns, apart from meetings about pathology, 19 had you since the October 2003 meeting with Dr. Smith at 20 the OCCO, had occasion to have coffee with him, some kind 21 of modest social interaction with him over that year? 22 DR. JAMES CAIRNS: I can't say that I did 23 or I didn't. Certainly, I -- if I had bumped into him in 24 the hospital and he said, Can we have a coffee, I wouldn't 25 have said no.
1931 MS. LINDA ROTHSTEIN: Do you remember 2 anything about his views, his concerns, his state of mind 3 over that year? 4 DR. JAMES CAIRNS: His -- his state of 5 mind seemed fine. 6 MS. LINDA ROTHSTEIN: So take us back then 7 to November 26th, 2004, and you are attending to meet with 8 him, first in the boardroom, to discuss the concerns that 9 had arisen in Valin's case. 10 DR. JAMES CAIRNS: We indicated to Dr. 11 Smith that Crown law, Criminal, needed these slides to 12 give to Dr. Knight and can he assist us. He indicated 13 that he didn't know what case we were talking about. 14 And I said, Well, hold on a minute, we -- 15 we know, at this stage, you were involved with the case 16 because we have a transcript of your evidence. 17 These had been things that had been 18 provided to us by Crown law, Criminal. 19 Well, I don't remember the case at all. 20 I said, Well, you know, it's here. 21 Well, I don't remember every doing with it 22 -- dealing with it. 23 At that time, one (1) of the secretaries, 24 whose first name is Maxine -- and we called Maxine in. I 25 said, Maxine, we're having a little difficulty here
1941 because we have the transcript that Dr. Smith testified. 2 We can find absolutely nothing in our record on this case, 3 in our file, that indicates he had anything to do with it, 4 but the transcript is pretty solid evidence. Can you help 5 us. 6 And she says, Yes, there -- there is a 7 file. 8 And she went out and brought in a file, 9 which was a handwritten note comprising the opinion, 10 initial opinion, of Dr. Mian and Dr. Smith regarding what 11 they -- their preliminary opinion from the pathology -- of 12 what the path -- these pathologists in Sault Ste. Marie 13 had asked him for a preliminary opinion. 14 MS. LINDA ROTHSTEIN: Right. 15 DR. JAMES CAIRNS: They had given a 16 preliminary opinion and saying: To give a further 17 opinion, we need histological slides, et cetera, et 18 cetera, et cetera. That was in a file that Maxine brought 19 in. 20 We then said, Well, where is your 21 consultation letter? 22 To this day, as far as I know, there was 23 never a consultation report done. I checked with the 24 Crown on the case. So it appears that he went and 25 testified at that trial without having presented a
1951 consultation note in advance. 2 MS. LINDA ROTHSTEIN: I think we have one 3 (1), but that doesn't ring a bell for me with -- with 4 great respect, Dr. Cairns. 5 There's something that's authored by Dr. 6 Mian and Dr. Smith, to my recollection. 7 DR. JAMES CAIRNS: Oh, yes. There was 8 something authored by Dr. Mian and Dr. Smith. 9 MS. LINDA ROTHSTEIN: Right. 10 DR. JAMES CAIRNS: And that was the -- 11 that was the -- the -- 12 MS. LINDA ROTHSTEIN: The consultation 13 report, was it not? 14 DR. JAMES CAIRNS: That's right, but this 15 would have -- that was a preliminary consultation report, 16 which, in my recollection, is it indicated: Here's what 17 we think but without the ability to examine the 18 histological slides, et cetera, we can't be more -- any 19 more definitive. Now, if I'm wrong, please -- 20 MS. LINDA ROTHSTEIN: Okay. 21 DR. JAMES CAIRNS: There -- all -- all I 22 saw there was this consultation report in longhand, if I 23 remember correctly -- 24 MS. LINDA ROTHSTEIN: Mm-hm. 25 DR. JAMES CAIRNS: -- from Dr. Smith and
1961 Dr. Mian about their initial views of the case. And there 2 would need to be -- if they wanted a more definitive 3 opinion, they would need the slides. 4 MS. LINDA ROTHSTEIN: Mm-hm. And so where 5 did it go from there in your discussions on that day with 6 Dr. Smith? 7 DR. JAMES CAIRNS: I said, Well, then, 8 where is your pathological consultation report? 9 MS. LINDA ROTHSTEIN: Mm-hm. 10 DR. JAMES CAIRNS: He didn't have it. 11 MS. LINDA ROTHSTEIN: Mm-hm. 12 DR. JAMES CAIRNS: And further inquires, 13 I was unable to obtain it from the Crown. And it appeared 14 that he had testified without having presented the Crown 15 with a consultation report in advance. 16 MS. LINDA ROTHSTEIN: But -- but what 17 about the search for the histological material itself? 18 DR. JAMES CAIRNS: The search for the 19 histological material. At least we had established by 20 this stage -- where initially he didn't think he had 21 anything to do with the case, he did then, through our 22 saying there's a transcript and through the note 23 appearing, that these initial consultations by Dr. Mian 24 and himself -- he was saying, Yeah, I had an involvement 25 with it.
1971 We said, Okay, now that we've established 2 that, we need your histological slides. 3 MS. LINDA ROTHSTEIN: Okay. Let -- let's 4 just go back for one (1) moment and just make sure we're 5 all on the same page to the extent we can be. 6 We have a report on Valin by Dr. Mian and 7 Dr. Smith dated August 6th, 1993. Can you call up 8 PFP003220, please, Registrar. Just -- this may take us 9 down a blind alley, but. Is that the wrong one? 10 Mr. Centa tells me that that was the 11 preliminary report; that's what you were referring to as-- 12 DR. JAMES CAIRNS: That is what -- 13 MS. LINDA ROTHSTEIN: -- as preliminary -- 14 DR. JAMES CAIRNS: -- I am referring to. 15 I apologize, I thought it was in handwriting. No, this is 16 the preliminary report, and it's referring to photographs 17 that they had looked at. 18 MS. LINDA ROTHSTEIN: Right. Your point 19 being that there was nothing that came after that? 20 DR. JAMES CAIRNS: At the end of this 21 report said, If you want something more definitive you 22 need to send us these issues. 23 And we did know that Dr. Smith had 24 testified at the trial so we assumed before testifying at 25 the trial that he must have produced a more formal report
1981 after he had reviewed all the materials that were sent to 2 him. 3 We were unable to find a copy of that 4 official consultation report. 5 MS. LINDA ROTHSTEIN: Okay. 6 COMMISSIONER STEPHEN GOUDGE: I take it 7 you felt that if he was going to testify he should have 8 got the additional material and then delivered a final 9 report and then testified? 10 DR. JAMES CAIRNS: Any time, particularly 11 for the Crown, you have an obligation for full disclosure. 12 So I found it very strange that he's going to be called as 13 a Crown witness without the defence having any ability to 14 look at the report he may have prepared. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. JAMES CAIRNS: And our endeavours to 17 find that were unsuccessful. 18 COMMISSIONER STEPHEN GOUDGE: All right. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: At any point in your 22 conversations with Dr. Smith, that day or indeed 23 thereafter, did he acknowledge that the Crown had, in 24 fact, been attempting to get the slides from him for more 25 than a year?
1991 DR. JAMES CAIRNS: He indicated that -- 2 not -- he did not indicate to the extent that we now know. 3 He indicated he had sent the slides back to Dr. Rasaiah, 4 in Sault Ste. Marie, so that's why he didn't have them. 5 MS. LINDA ROTHSTEIN: That was his 6 position on November the 26th? 7 DR. JAMES CAIRNS: That's correct. 8 MS. LINDA ROTHSTEIN: And you, 9 subsequently, learned that was, in fact, not true? 10 DR. JAMES CAIRNS: And he indicated that 11 he remembered because he had them -- he had personally 12 gone to the post office and had sent them by registered 13 mail. 14 MS. LINDA ROTHSTEIN: That's what he told 15 you? 16 DR. JAMES CAIRNS: Yes. 17 MS. LINDA ROTHSTEIN: On November the 18 26th? 19 DR. JAMES CAIRNS: Dorothy and myself 20 felt that was strange; that normally I wouldn't be going 21 to the post office -- I'd be giving that to a secretary to 22 do. 23 Anyway, he -- he said he did not have the 24 slides. There was lots of checking around from Dr. 25 Rasaiah. Dr. Rasaiah indicated that he'd sent them, from
2001 my recollection, to Dr. Ferris. Dr. Ferris had returned 2 them to him. Dr. Rasaiah indicated the last record he 3 had, they were with Dr. Smith. Dr. Smith insisted he'd 4 sent them back to Dr. Rasaiah; he didn't have them. 5 MS. LINDA ROTHSTEIN: So -- so tell us 6 what you did. 7 DR. JAMES CAIRNS: In the interim period, 8 Maxine started to look around and within a period of time 9 phoned and said, I found -- 10 MS. LINDA ROTHSTEIN: November -- 11 DR. JAMES CAIRNS: -- some slides. 12 MS. LINDA ROTHSTEIN: -- the 29th? 13 DR. JAMES CAIRNS: I'll accept -- yes, 14 that's what, within a week or so? 15 And my recollection that was -- we had 16 Maxine in the room at this time, and I think Maxine was 17 the one that started to search and found a number of the 18 significant slides. 19 COMMISSIONER STEPHEN GOUDGE: Who is 20 Maxine? 21 DR. JAMES CAIRNS: Maxine, I would have 22 said at the time, was one (1) of the pool of secretaries 23 that was involved with -- with pathology. And she knew a 24 lot about the runnings of the office and certainly she was 25 someone that Dr. Smith would turn to in terms of: Where
2011 are things? 2 So that it was a reasonable thing to do 3 when Dr. Smith said he couldn't remember anything about 4 that, that okay, maybe Maxine will remember much more 5 about it. And she was the one that brought in this 6 consultation. She would also have been one who, if I'd 7 call and he wasn't there, I -- I would get -- get to her. 8 I, at one stage, thought that she was his 9 personal secretary like Louise. I'm not sure that that 10 was the case but what exactly, I think I'll better leave 11 to her. Because there was some confusion in our minds as 12 to just -- at that level -- who -- who was responsible for 13 what. 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Maxine Johnson? 17 DR. JAMES CAIRNS: That's correct. 18 MS. LINDA ROTHSTEIN: We've interviewed 19 Maxine Johnson, Commissioner, and I expect at some stage 20 we'll be in a position to present her evidence either viva 21 voce or in some other form. 22 COMMISSIONER STEPHEN GOUDGE: Thank you. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: All right. Were you
2021 involved then in the returns to Dr. Smith's office to 2 conduct the full tissue audit or was that something that 3 was undertaken by Dorothy in your absence? 4 DR. JAMES CAIRNS: Once we got those 5 slides -- and those slides were given to -- to -- 6 initially to Michael Pollanen and the intention of that 7 was they were going to go to Professor Knight. But we 8 should have a documentation of exactly what each slide 9 was, even through those slides noted that from the report, 10 there were still slides missing. 11 And at that stage then there was a further 12 decision that, Okay, we're going to have to do an audit of 13 everything that is there, particularly in looking for the 14 remaining slides in that case, which were critical, but 15 that also we were going to have to do an audit -- 16 actually, that may be wrong, it may have been we were 17 looking for the additional slides for that case, which 18 subsequently turned up. 19 MS. LINDA ROTHSTEIN: That's right. 20 DR. JAMES CAIRNS: Dr. Pollanen did his 21 report. 22 MS. LINDA ROTHSTEIN: That's right. 23 DR. JAMES CAIRNS: His report was very 24 significant. I personally brought that report over to Ken 25 Campbell (phonetic), to Crown Law, Criminal, indicating to
2031 him -- let me see -- excuse me, Commissioner, although I'm 2 not a pathologist, I was able to explain to Ken Campbell 3 exactly the significance of Dr. Pollanen's importance. 4 And it had been agreed -- I brought four 5 (4) or five (5) copies so that they could go right up the 6 ladder and there was an agreement that we felt this should 7 be given to the defence at the earliest possible 8 opportunity. 9 With that in mind, there was then 10 permeating through a number of us that, okay, we may have 11 to do more than this; we're going to have to do a tissue 12 audit of all of Dr. Smith's work. And that tissue audit 13 was undertaken by Dorothy Zwolakowski and Maxine at The 14 Hospital for Sick Kids with the assistance of Glen Taylor, 15 who was the Chief of Pathology, pathology assistance, and 16 -- and other individuals. 17 MS. LINDA ROTHSTEIN: When was the last 18 time you saw Dr. Smith? 19 DR. JAMES CAIRNS: The last time I saw 20 Dr. Smith. Dr. McLellan and I took him out for an early 21 dinner, I think, just after he had stepped down as the 22 Director. 23 MS. LINDA ROTHSTEIN: And that we know, 24 Commissioner, was in July of 2005 -- or actually, sorry, 25 that was in -- yeah, July 2004. It was July 2005 that he
2041 resigned from his position at the HSC. 2 Obviously, Dr. Cairns, we haven't begun to 3 provide the Commissioner with enough information about the 4 challenges of the Deputy Chief Coroner that go beyond the 5 cases that we've discussed over the last two days. 6 Can you give the Commissioner just some 7 kind of sense of the number of inquests you conducted once 8 you became the Deputy Chief Coroner? 9 DR. JAMES CAIRNS: As the Deputy Chief 10 Coroner I wouldn't have done the same volume of inquests, 11 but the inquests I did do were primarily of a 12 controversial nature. They would include police 13 shootings, they included Jordan Heikamp, they included 14 some of the systemic issues in -- in child abuse. So that 15 it would be normally an inquest that would be of 16 complexity and was going to be lasting two (2) to three 17 (3) months in duration. 18 MS. LINDA ROTHSTEIN: And how many of 19 those would you do on -- in a year, on average? One (1)? 20 Two (2)? 21 DR. JAMES CAIRNS: Two (2) -- it would at 22 the -- at the -- since all the other stuff, we try to only 23 do one (1) a year if possible, because you just couldn't 24 get anything else done -- 25 MS. LINDA ROTHSTEIN: Right.
2051 DR. JAMES CAIRNS: -- while you were on 2 those. 3 MS. LINDA ROTHSTEIN: And we -- we well 4 know that you had to oversee twenty thousand (20,000) 5 death investigations a year on average in your role. How 6 many of those, give us some sense - Commissioner some 7 sense - of how many of those would have created 8 significant issues that would have involved you meeting 9 with police officers, families, Crown attorneys or others 10 to sort through which way that investigation ought to 11 proceed? 12 DR. JAMES CAIRNS: The twenty thousand 13 (20,000) cases, and Dr. McLellan will probably give you 14 the breakdown, but the majority of those were natural 15 causes, so you might say, Well, there wouldn't be much 16 problem with those. But if those natural causes involved 17 issues about medical care in hospital, then that would be 18 something where I -- where I'd be getting involved. 19 Then with regard to the accidents, the 20 suicides and the homicides, I'd often be involved to 21 assist in what did I think that this should properly 22 called or what should we do more, so police would call, 23 Crowns would call. 24 Regional coroners would call that they had 25 a meeting that they felt was of critical significance,
2061 they would ask me to attend it. 2 Sorry, the other significant long inquest I 3 did during that time, I think you're aware of it, it's a 4 death of Lisa Shore at Sick Kids. 5 MS. LINDA ROTHSTEIN: And so how much of 6 your time was spent dealing with complex investigations of 7 the sort that we've described today, but that didn't 8 involve Dr. Smith? 9 DR. JAMES CAIRNS: Basically, from 1991 10 to the present day. I went in each morning thinking I'd 11 catch up on my paperwork and it would just be one fire 12 after another. 13 MS. LINDA ROTHSTEIN: Now accepting as you 14 do -- 15 DR. JAMES CAIRNS: And sorry, when I say 16 "one fire after another," I'm not meaning the place was in 17 chaos, but that's just the nature. The -- you can put an 18 ad in the paper saying, Don't let's have anybody killed 19 for the next week, doesn't exactly help. So it's just the 20 nature of the job: When it happens, it happens. 21 MS. LINDA ROTHSTEIN: It was a heavy work 22 load? 23 DR. JAMES CAIRNS: It was a heavy work 24 load. 25 We had -- we had the -- okay, we had the
2071 TTC crash. We had the 401 disaster at Windsor. We had 2 the bombing -- the explosion of the gas on Bloor Street 3 and we had the coming down of the Uptown Theatre. That's 4 just off the top of my head in terms of life was not 5 boring. 6 MS. LINDA ROTHSTEIN: So just before we 7 close off here, Dr. Cairns, accepting as you do the 8 results of the coroner's review of forty-five (45) cases 9 in which five (5) internationally respected experts found 10 many significant flaws in Dr. Smith's work -- in twenty 11 (20) of them anyway. 12 Do you accept that the system, if not any 13 one (1) individual, failed to identify those flaws soon 14 enough? 15 DR. JAMES CAIRNS: I accept that 16 completely. 17 MS. LINDA ROTHSTEIN: And do you accept 18 that the system, if not any one (1) individual, failed to 19 acknowledge those flaws soon enough? 20 DR. JAMES CAIRNS: Yes, I do. 21 MS. LINDA ROTHSTEIN: And do you accept 22 that the system failed to take steps to adequately remedy 23 those flaws soon enough? 24 DR. JAMES CAIRNS: In a timely manner, 25 yes.
2081 MS. LINDA ROTHSTEIN: So given all that 2 you know now, and based on all your lengthy and deep 3 experience as the Deputy Coroner, why was that? 4 DR. JAMES CAIRNS: That's a much more 5 difficult question to answer. I -- I can indicate for my 6 part, that I put undue faith in Dr. Smith; so that another 7 pathologist would have been caught much sooner. But I had 8 Dr. Smith up there as "the" pathologist. 9 I think that opinion was shared by many 10 others in the office. And having read many court 11 transcripts, it appeared to be shared by the Crown, by the 12 defence, and by many of the judiciary as well as the 13 media. 14 So it took me a long time to come to that 15 realization because I had put him on such a pedestal. 16 I think it was Professor Milroy had 17 indicated in a question that the Commissioner asked him. 18 Commissioner, I think you asked him in terms of should the 19 judge pick the panel of experts that would advise the 20 court on -- on the science and what did he think of that? 21 And he said, Well, that also had its 22 drawbacks. Because in England, Professor Roy Meadow would 23 have been on that panel in a shot. And we know what 24 happened. And I would have put Dr. Smith in the same 25 situation up there.
2091 In fact, I'm -- I'm quite disappointed that 2 I missed it in many ways because we talked earlier about 3 being -- I said "think dirty," you said, "suspicious." 4 So the irony was, in this case, it wasn't: Do what I do, 5 do what I say. And I missed out the signs that were there 6 because I put him on too high a pedestal. I can't speak 7 all for the others, that -- that's where I personally take 8 my responsibility. 9 MS. LINDA ROTHSTEIN: And what systemic 10 changes, if any, have you come up with that you think 11 might address the system's failures here? 12 DR. JAMES CAIRNS: Since these involved 13 criminally suspicious and homicidal cases, it has now been 14 implemented that every one of those autopsies will be 15 reviewed in more detail by the Director of the unit where 16 they're done, or if they're done by the Director in those 17 units, by Dr. Pollanen and Dr. Pollanen's will be reviewed 18 by someone else. 19 However, if we continue to write autopsy 20 reports in the manner in which they have been written -- 21 and I had an opportunity, very briefly -- and this was in 22 no way to interfere with the commission of experts. I was 23 interested that in the British Isles, forensic 24 pathologists not only dictate what they see at the 25 autopsy, but part of their report they're meant to go on
2101 and explain the mechanism by which this happened, their 2 thinking process behind it, and they are meant to give 3 their reasonings, their opinion evidence, right in that 4 document. 5 It has not -- it has never been the 6 practice in Canada or in the United States for a 7 pathologist; in fact, they were told not to. Just put the 8 facts of the case and nothing more. You give your opinion 9 evidence in court. 10 MS. LINDA ROTHSTEIN: Mm-hm. 11 DR. JAMES CAIRNS: If all we have on the 12 autopsy reports are the facts, the factual information -- 13 for example, in Paolo, his conclusion was "No cause of 14 death established" -- you're not going to be able to audit 15 that very well on that piece of paper. But if you have on 16 that not only the conclusion but how you reached the 17 conclusion and the opinion evidence you're going to give, 18 you're going to be in a much, much better position if 19 you're doing a review of these to pick up and say, Hey, 20 this cause of death is fine, but what about all the logic 21 that's leading up to it. 22 And in -- in my review of the overviews of 23 all of these, many of them, the thing that really gave 24 concern was the evidence in court. And you wouldn't have 25 known about the evidence in court until afterwards. So
2111 the British Isles, that's mandatory; it is not mandatory 2 here, it has not been the practice here. 3 I am aware that Dr. Pollanen, himself, is 4 now -- when he's doing a -- a homicide autopsy that he now 5 is adopting the -- the policy of not only the report, but 6 giving the reasoning and opinion behind the report, at 7 that time. That is certainly not universally accepted by 8 all the other pathologists in the Province of Ontario. 9 And I think if you go to the United States, 10 they'll -- they'll say, no way, but I think that is -- 11 well, there's a number of steps you -- first of all, make 12 sure they're peer reviewed. But the material you have to 13 be peer reviewed, unless you have those opinions, you're 14 also going to have peer review every testimony, which 15 becomes longer and longer. 16 And I think the number of peer review 17 testimony that would be necessary would be much less 18 because you would have in writing, before you go to court, 19 this is your opinion. Well, you're going to have a great 20 difficulty if you decide in court to change your opinion. 21 You say, Well, come on, why you changing 22 that because here's what you have in black and white so, 23 therefore, it would focus down. 24 The other thing that would focus down also 25 is if the defence pathologist was also disclosing their
2121 report with their opinion. And I think we could then get 2 down to, okay, where are the areas of disagreement and -- 3 and sort -- sort those out. 4 COMMISSIONER STEPHEN GOUDGE: Are there 5 any special steps, Dr. Cairns, that occur to you, in 6 looking back about how effective peer review can be 7 conducted of the icon in the field? 8 DR. JAMES CAIRNS: I think you've hit the 9 nail on the head. It's -- it's very difficult when you 10 get to icon status to -- to take people down from that 11 icon status. 12 COMMISSIONER STEPHEN GOUDGE: Given all 13 you know over the last fifteen (15) years about Dr. 14 Smith's flaws, what is your explanation for how he 15 maintained that iconic status so long? 16 DR. JAMES CAIRNS: I don't have a good 17 one. I -- I'll say this, and it -- it may be unfair. He 18 came across as a very sincere, religious individual. And 19 perhaps people put -- sorry, I put too much emphasis on 20 his religious aspect. I should know better, I'm from 21 Northern Ireland, but that's beside the point. 22 I -- I felt that his religious aspect meant 23 a more narrow likely that he -- that he wasn't telling the 24 truth. So a combination of that and his peers, et cetera, 25 et cetera.
2131 MS. LINDA ROTHSTEIN: Thank you, 2 Commissioner. Thank you very much, Dr. Cairns. 3 COMMISSIONER STEPHEN GOUDGE: We will 4 break until 3:30 p.m. 5 6 --- Upon recessing at 3:13 p.m. 7 --- Upon resuming at 3:31 p.m. 8 9 THE REGISTRAR: All rise. Please be 10 seated. 11 COMMISSIONER STEPHEN GOUDGE: Mr. 12 Gover...? 13 14 CROSS-EXAMINATION BY MR. BRIAN GOVER: 15 MR. BRIAN GOVER: Thank you, Mr. 16 Commissioner. 17 Now, Dr. Cairns, early on in your 18 examination by Commission counsel, you described the 19 relationship between the Office of the Chief Coroner and 20 the Chief Forensic Pathologist and you -- you described 21 being challenged -- or being present in the autopsy room 22 and you described what you put as a upstairs/downstairs 23 sort of mentality. 24 Although you've touched on aspects of the 25 relationship between the Office and the Chief Forensic
2141 Pathologist in the course of answering other questions by 2 Commission counsel, could you describe the evolution of 3 the relationship between the Office of the Chief Coroner 4 and the Chief Forensic Pathologist from the time you 5 joined in October 1991, to the way it stands now, sixteen 6 (16) years later? 7 DR. JAMES CAIRNS: When I joined in 1991, 8 the departments were still separate at that time, so there 9 was no direct relationship. 10 Unfortunately, Dr. Hillsdon Smith basically 11 retired on the job. He wasn't doing autopsies, he wasn't 12 supervising autopsies, he was not promoting forensic 13 pathology across the province or interested in advancing 14 forensic pathology. 15 MR. BRIAN GOVER: Was he mentoring anyone? 16 DR. JAMES CAIRNS: He was not mentoring 17 anyone. He basically would sit in his office. 18 So at that time we had the sad situation 19 that the pathology assistant, Barry Blenkinsop, in many 20 ways was running the pathology unit and fee-for-service 21 pathologists, which I'm not criticizing, were coming in, 22 and doing the -- the autopsies. But there was no 23 leadership and there was great frustration that it was 24 sort of just not going anywhere. 25 The upstairs/downstairs was very much in
2151 evidence. An example of that was, I was the only one (1) 2 that was able to talk to Dr. Hillsdon Smith. Dr. Young, 3 and before him, Dr. Bennett, could not speak to him at 4 all. And that all had started with Dr. Hillsdon's -- with 5 Dr. Beatty Cotnam's relationship, but it had not improved. 6 And an example of that would be, we had 7 indicated that Dr. David Chiasson had expressed an 8 interest in forensic pathology and asked would we support 9 him going down to Baltimore and doing his forensic 10 training in Baltimore, getting his forensic pathology 11 exams and coming back to be initially a -- one (1) of the 12 pathologists working in the office. And we foresaw when - 13 - after Hillsdon Smith retired, the possibility of him 14 becoming the next Chief Forensic Pathologist. 15 He did his necessary training and came 16 back, and we wanted to put him on -- on the rota to be a 17 fee-for-service pathologist. I contacted Dr. Hillsdon 18 Smith and said, John, I'd like to speak to you about the 19 possibility of David Chiasson -- who, as you know, has 20 just done his exam -- coming on the rota, can we go for 21 out for lunch? And the answer was, I don't do lunch. 22 Can we go out for coffee? I don't do 23 coffee. 24 Well, can I come down, at least, talk to 25 you about it? He said, Well, you can come down, but it
2161 really won't make any difference, you guys have probably 2 made your mind up anyway. 3 But I went down and indicated that we'd 4 like to put this individual -- he said, Well, you're going 5 to do it no matter what, I have no say in the matter. And 6 that was the extent of the conversation. 7 I think it demonstrates it wasn't exactly a 8 cordial relationship where he was about to retire in a 9 year or so and there wasn't any interest in talking 10 succession planning. 11 And I -- I think that -- that unfortunately 12 describes the -- the situation at -- at that time. 13 MR. BRIAN GROVER: Now how did that 14 situation change after April 1st, 1994 when Dr. Chiasson 15 became Chief Forensic Pathologist and part of the Office 16 of the Chief Coroner? 17 DR. JAMES CAIRNS: Dr. Chiasson was not 18 prepared to take on the Chief Forensic Pathology unless 19 the two (2) offices combined because he couldn't -- he 20 didn't like this "us and them" situation, so it was agreed 21 that we would come together as one (1) office. 22 And all I can say is, all the people in 23 pathology, the pathology assistants, everybody felt it was 24 a much healthier attitude. There was a much more sharing 25 of ideas. We started to go to pathology rounds, it was no
2171 longer "us and them," it was much more of a -- of a team 2 situation. How can we all get together to help in the -- 3 in the best interest of death investigation. 4 MR. BRIAN GROVER: Now one of Dr. 5 Chiasson's innovations was a review of post-mortem reports 6 prepared by other pathologists, is that correct? 7 DR. JAMES CAIRNS: That's correct. 8 MR. BRIAN GROVER: And can you help us 9 understand the significance of that sort of innovation? 10 Were other jurisdictions doing that, to your -- the best 11 of your knowledge? 12 DR. JAMES CAIRNS: Some jurisdictions 13 were, but it was very varying depending on the 14 jurisdiction. 15 But at that time, Dr. Chiasson, in 16 particular, was still working. The majority of the 17 pathologists working under him were not forensically- 18 trained forensic pathologists, so he felt he had more of a 19 responsibility to ensure the quality of those autopsies. 20 So that would have been one (1) of his major goals. 21 In addition, he had indicated to Dr. Young 22 and myself of his intention of trying to get, first of 23 all, the -- the unit in Toronto and then subsequently the 24 other units staffed as far as possible with fully trained, 25 full time forensic pathologists, given that the -- the
2181 times were changing. 2 And given the climate, given the 3 complexities in -- in court and given that there would be 4 more scrutiny, quite rightly held on to all of this, that 5 he felt the time of dabbling in this was fast 6 disappearing. 7 And his major initial goals were to -- to 8 enhance that situation. 9 MR. BRIAN GROVER: Now how would you 10 characterize the way things stand now then, sixteen (16) 11 years later, in the relationship between the Chief 12 Forensic Pathologist and the Office through your tenure as 13 Deputy Chief Coroner and the -- the time of Dr. Young and 14 Dr. McLellan and now Dr. Porter as Chief Coroner? 15 DR. JAMES CAIRNS: I -- I feel that what 16 Dr. Chiasson has started has expanded significantly and 17 has expanded again under Dr. Pollanen. So I think Dr. 18 Chiasson brought it to one (1) new level and then new 19 blood comes in and has brought it to another level in 20 terms, particularly, of the monitoring or the quality 21 control issue as regards to forensic pathology. 22 There's also been much more emphasis on 23 team discussions of everybody being there to -- to discuss 24 the issue rather than it being done in isolation. 25 There are much more formal rounds at both
2191 our office and at -- at The Hospital for Sick Kids. So 2 the number of people will be around the table and if one 3 (1) person is -- is out of sync, it's much more likely 4 that that will be caught now. 5 MR. BRIAN GROVER: Now I realize that this 6 next area is one (1) largely for Dr. Young, but, Dr. 7 Cairns, can you help us in understanding what the impetus 8 was for having a specialized forensic pathology unit at 9 the Hospital for Sick Children, in particular? 10 DR. JAMES CAIRNS: I think most 11 pathologists would have said that the -- the real 12 minefield of pathology was pediatric pathology. 13 Most pathologists were not well trained in it. And in the 14 late '80s, early '90s, there was, clearly, a need to do 15 something about that. 16 And I think Dr. Young having listened -- 17 and he can give you more detail -- having listened to the 18 concerns that were being expressed to him, felt that one 19 (1) of the ways to assist the improvement in that would be 20 to discuss with Sick Kids, as a premier Children's 21 Hospital, would they be prepared to come into some 22 negotiation for doing pediatric autopsies so that the 23 quality of the autopsy would be enhanced by having an 24 institution like Sick Kids involved. 25 MR. BRIAN GOVER: And the Office took that
2201 on even though, in the context at the time, that involved 2 working around the then Chief Forensic Pathologist. 3 Is that right? 4 DR. JAMES CAIRNS: To the best of my 5 knowledge the Chief Forensic Pathologist completely 6 ignored the discussion, period. 7 MR. BRIAN GOVER: Could I ask that 8 PFP057584 be brought up. And this is in the coroner's 9 manual, starting at page 349, it's the 1995 protocol. 10 Memorandum 631 and attachments. 11 And, Dr. Cairns, could you tell us what 12 your role was in -- 13 DR. JAMES CAIRNS: What page are we at, 14 sorry? 15 MR. BRIAN GOVER: Well, if I could take 16 you just to the first page; this is page 349, I 17 understand, of the manual. Or it should be projected on 18 the screen before you as well. 19 DR. JAMES CAIRNS: I'll use the screen. 20 MR. BRIAN GOVER: Thank you. My question, 21 Dr. Cairns, what role did you play in developing this 22 memorandum and protocol? 23 DR. JAMES CAIRNS: I -- I probably played 24 the most significant role; but having said that, with 25 great assistance from the Paediatric Review Committee
2211 which very much included Dr. Smith and his role. 2 MR. BRIAN GOVER: And from your point of 3 view, Dr. Cairns, what is the significance of the 1995 4 protocol? 5 DR. JAMES CAIRNS: The significance of 6 it, once the international definition of SIDS came out in 7 1991, which was the death of a child under one (1) year of 8 age, which remained unexplained, after a thorough 9 investigation which would include a police investigation, 10 a scene investigation, a review of the medical history, 11 and a complete -- with the word "complete" -- autopsy 12 done. Then, and only then, when that had all been done, 13 if everything was -- was negative, it could be classified 14 as a SIDS. 15 The members of the Paediatric Review 16 Committee; when we looked at that in 1993/94, they said 17 clearly we are not following that policy. Number 1, the 18 police were always minimally involved. 19 This would typically be a four (4) month 20 old baby found dead in a crib, brought to the hospital. 21 Emotional -- emotions were high. The ambulance would 22 usually bring them, even though they were clearly dead. 23 The Emerg. nurse and the Emerg. doctor would probably, 24 with the parents, say, This is a SIDS, don't worry. 25 The coroner would come in and say, This is
2221 a SIDS, don't worry. If the police came at all, they'd be 2 told, Don't worry, this is a SIDS. We'll do an autopsy 3 tomorrow, and if there's anything to it, we'll let you 4 know. 5 So, obviously, there was no police 6 involvement in that. There was no discussion. And at 7 those times, the autopsies were being done by local 8 pathologists in local hospitals, most of whom had no 9 pediatric training whatsoever. 10 MR. BRIAN GOVER: To what extent was mis- 11 diagnosis by regular hospital pathologists part of the 12 concern that drove the development of this protocol? 13 DR. JAMES CAIRNS: Well, there had been a 14 number of cases that -- that exactly drove that. The 15 local pathologists, the local coroners, were very much 16 wanting some guidance. So that led to a review by 17 different members of the Committee about how were these 18 deaths being investigated in other parts of the world. 19 And I would think, primarily, we were 20 dealing with English speaking parts of the world. And 21 different people reviewed different systems, and 22 eventually we came up with a system we felt was 23 particularly suitable to Ontario. 24 But it involved that every time now the 25 police would get involved. The police would be
2231 responsible for going back to the house, because most of 2 these children were pronounced dead in hospital, but the 3 scene was back in the home, so they'd go back and process 4 that scene as they would any other scene. 5 They would be responsible for interviewing 6 the individuals. They would be responsible for checking 7 backgrounds on -- on the parents or the caregiver or 8 whoever else. 9 The initial coroner would be responsible 10 for getting all the back past medical history on the 11 child. And then the autopsy was enhanced quite 12 significantly. Dr. Smith led out the -- the protocols for 13 how the autopsy should be done. 14 And, in addition, prior to this, if x-rays 15 were done at all, the x-ray that was done was called a 16 "baby gram" and you would just put the baby on a -- on a 17 x-ray plate and take one (1) shot. That was not, 18 according to radiologists, of any value in -- in detecting 19 old fractures. 20 It was then brought that they were going to 21 be specialized x-rays done. And, in addition, we fought 22 and won that all these children, if it was a negative 23 autopsy, should have toxicology. 24 If we had a twenty-five (25) year old died 25 and the autopsy was negative, it would be automatic that
2241 we would do toxicology. We -- we -- toxicology was not 2 being done on children at all. 3 We had to fight with Government to get 4 funding for that because that was going to mean that all 5 children under two (2) were having full toxicology. In 6 New York State they were doing cocaine and heroine and we 7 said, Well, we can't, necessarily, figure out that the 8 drugs that young children may have in their system here 9 would be -- would be the same. So we entered into 10 contract with the Centre of Forensic Science to do full 11 toxicology for a period of two (2) years, and then 12 reexamine was -- were, were they getting their money's 13 worth, so to speak, in terms of doing that. 14 So, that was the protocol, and it was sent 15 out, at this time, to police, all pathologists, and all 16 coroners. And it was not sent out as "here's a guideline 17 if you'd like to use it;" it was sout -- sent out as a 18 directive; "You shall use it." 19 MR. BRIAN GOVER: Right. Now, the only 20 other document I'm going to refer to in this examination, 21 Doctor, is PFP057188, and this is in Volume I at Tab 10 of 22 the binders. And this is a report of the Paediatric Death 23 Review Committee and Deaths Under Five Committee for the 24 Office of the Chief Coroner released in June of this year; 25 2007.
2251 And I'm not going to ask you to take us 2 through this report, Dr. Cairns, but my question is what's 3 -- what initiatives does this report refer to, and, in -- 4 in -- in particular, why -- why is it essential to report 5 as the committees have here? 6 This is indicated to be the second report 7 and you signed as the Chair of both committees. 8 Can you tell us what's been accomplished 9 here? 10 DR. JAMES CAIRNS: This -- the -- the 11 committee was doing what we felt was valuable work, but we 12 never had time to put it out in print form so that others 13 could learn. Because I think the best way you learn in 14 medicine is to learn from the mistakes of others. 15 So, in the medical part of this -- this was 16 two (2) parts; we were dealing about the medical deaths 17 and we were also dealing about the deaths in Children's 18 Aid Societies. 19 And we eventually scrambled enough money to 20 get another person to assist us on the understanding that 21 we would put this out, and this was put out primarily to 22 benefit the Children's Ministry. 23 The Children's Ministry and Children's Aid 24 were under a tremendous amount of scrutiny. One (1) of 25 the scrutinies, in particular, was their secrecy when it
2261 came to the media; they didn't seem to be able to tell 2 anything. 3 That Ministry had tried, on a number of 4 occasions, to do reports that were unfortunately 5 unsuccessful. And we agreed, if we were given some 6 resources, that we would do the external review of the 7 Children's Aids. And just a simple thing; how many 8 children die each year when they're being monitored in one 9 (1) way or another by Children's Aid Society; there's 10 approximately eighty-five (85). 11 And when you mention that number, I think 12 most people -- that's awful -- without a detailed 13 explanation. And yet Children's Aids and the Ministry 14 would not do it. What we've accomplished in this is to be 15 able to give the public and the reader at large an insight 16 into what types of deaths these were, to highlight the 17 recurring problems that were there, at the same time being 18 able to retain the privacy rights of the individuals. So 19 that was a focus. 20 And the focus of the -- the medical ones, 21 on this particular occasion, were pointing out to 22 physicians mistakes that were being made in medicine that 23 were occurring over and over again. There is a section in 24 this on the proper use of IV fluids. 25 And an example, very, very briefly, I think
2271 it was a six (6) year old who had a tonsillectomy, which 2 is an out-patient procedure, in a community hospital and 3 had an IV and developed cerebral edema and died. 4 And that child died because of the 5 inappropriate use of IV fluids. Completely unnecessary. 6 This has been noted in -- in other countries, and our 7 Committee had dealt with about seven (7) or eight (8) of 8 those. 9 So we do, in this, have a full two (2) 10 pages on the proper use of IV fluids. So, for the medical 11 ones, we were trying to say, here are the recurring 12 mistakes, here are the recurring themes; can you learn 13 from them? 14 And the same with the Children's Aid. And 15 then, in addition, in this particularly report we took two 16 (2) or three (3) themes, and one (1) of them was unsafe 17 sleeping environments. 18 Our investigation, more and more, is 19 realizing a lot of these children are dying because 20 they're sleeping in mattresses, they're sleeping in beds 21 with parents, et cetera. So this was an opportunity to 22 educate the public very significantly on that matter. 23 The other thing we want to educate the 24 public, and this was the use of bath seats; where young 25 children are put into bath seats, they have got suckers on
2281 the bottom of them, so that the child can sit up in the 2 bath. 3 Although those seats say "Do not leave the 4 child," we'd investigated something like eight (8) deaths 5 where the phones goes, the mum goes to answer the phone, 6 over goes the kid, and the kid -- the kid has drowned. 7 So these -- these were to tr -- were public 8 health education, and instead of saying, Well you're 9 making this all up, these one's sadly, were coming from 10 hard facts. So we were trying to do what we were not able 11 to do in the past because of the volume of work. 12 There was a tremendous amount of work done 13 there that was good work, but was not being fully 14 utilized, because the information they had was not being 15 shared with the sectors that were necessary; be it Child 16 Welfare, be it the medicine or, in fact, in many ways, be 17 it the general public. 18 MR. BRIAN GOVER: Now, Doctor, I have to 19 move into more details now relating to other aspects of 20 your testimony. 21 COMMISSIONER STEPHEN GOUDGE: Before you 22 do, Mr. Gover, I'd ask you a little bit about this report, 23 Dr. Cairns. This is the second one that the PDRC has put 24 out? 25 DR. JAMES CAIRNS: That's correct.
2291 COMMISSIONER STEPHEN GOUDGE: Was your 2 hope or is your hope that this will be an annual report as 3 it's billed at the top of each page? I assume that's a 4 resource issue, but... 5 DR. JAMES CAIRNS: We -- because we 6 agreed to do this for the Children's Ministry, they give 7 us thumbs to have one (1) resource person to help with 8 this. That contract is up next March. Hopefully the 9 contract will be renewed, and then this will continue. 10 And it -- yes, it was the intention to have 11 this as an annual report, providing we've got sufficient 12 resources. 13 COMMISSIONER STEPHEN GOUDGE: And it's 14 really mostly of the work of the PDRC, although it's 15 billed as the report of both Committees, or am I wrong 16 about that? 17 DR. JAMES CAIRNS: It's -- no, it's 18 actually both, because particularly with the unsafe 19 sleeping environment, most of that is now coming from 20 analyzing, has this child died of SIDS or has it died -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 They're not hospital deaths? 23 DR. JAMES CAIRNS: That's right. So -- 24 so they're -- 25 COMMISSIONER STEPHEN GOUDGE: I see.
2301 DR. JAMES CAIRNS: -- it's a combination 2 of both, yes. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 Thanks. Thanks, Mr. Gover. 5 6 CONTINUED BY MR. BRIAN GOVER: 7 MR. BRIAN GOVER: Thank you. And I'd like 8 to move to a discussion of maintaining a high index of 9 suspicion or 'thinking dirty' as it was put in the 1995 10 protocol, memo 631. 11 I understand, Dr. Cairns, that there were 12 two (2) cases that -- although they -- they didn't happen 13 in 1993, came to the fore, came to the attention of the 14 Office of the Chief Coroner in 1993, and that that 15 contributed, in some way, to the evolution of this thought 16 that you needed to maintain a high index of suspicion. 17 Is that right, sir? 18 DR. JAMES CAIRNS: That is correct. 19 MR. BRIAN GOVER: Now one (1) of them, I 20 understand, related to Tammy Homolka, is that right? 21 DR. JAMES CAIRNS: That is correct. 22 MR. BRIAN GOVER: Can you briefly -- 23 because our time is limited, can you briefly tell us how 24 maintaining a high index of suspicion was one (1) of the 25 lessons learned in that case?
2311 DR. JAMES CAIRNS: Well, very briefly, 2 she died in the presence of her sister and her sister's 3 boyfriend. When she was pronounced dead in hospital, 4 there was a burn on the left side of her face which was 5 considered bizarre. 6 She was moved to Hamilton where an autopsy 7 was done. The pathologist concluded she'd died by choking 8 on her own vomit. But normal people do not choke on their 9 own vomit. Alcohol level were done expecting that they 10 would be high. They came back -- oh, just -- just there 11 and no more. So she hadn't obviously choked on her own 12 vomit because of the alcohol. 13 The burn had never been seen before, and it 14 was sent to Dr. Hillsdon Smith for an opinion. He wrote 15 back an opinion saying, I -- I think it's a chemical burn, 16 but I've never seen anything like it before. 17 That was the end of that. The coroner then 18 independently said, Oh, she has a history of asthma. I 19 think she died of an asthma attack, and wrote the case off 20 as "asthma, natural causes." 21 There had been no case conferences, no 22 integration of anything at that time. That case then 23 vanished until either Paul was -- yes, Paul was arrested. 24 I was in Boston at the American Academy meeting, and I got 25 a call, Paul's been arrested, the media have clicked that
2321 he was present when his sister-in-law died on Christmas 2 Eve. 3 We had the material faxed to us in Boston, 4 and it was clear, that at the time of the death, nobody 5 had asked for an explanation for the burn and nobody had 6 said. Well, how come, with the blood alcohol is negative 7 ,that she's choked on her own vomit, and it had just been 8 written off as natural causes? 9 To a certain extent, being naive, you could 10 say, Well, she was there with her sister and her sister's 11 boyfriend, but those were unanswered questions and Justice 12 Campbell, many years later when I talked him he said, You 13 know, Jim, I don't know that the police may necessarily 14 have -- that they took this more suspiciously that they 15 may necessarily have broken Karla and Paul Bernardo down. 16 They were pretty shrewd individuals. 17 But, certainly, that should have been 18 classified at that time, Cause of death undetermined, by 19 what means undetermined. And, certainly, when Paul 20 Bernardo's name came up early in the Green Ribbon Task 21 Force that he was present when his sister-in-law died of 22 natural causes had they said, "Died, cause of death 23 undetermined; by what means, undetermined" there might 24 have been a different look at that. 25 And I -- until many years later, I suppose,
2331 at that time, Commissioner, I thought -- I thought I 2 thought dirty, but that -- that was going beyond thinking 3 dirty, that your -- you had murdered your sister with your 4 boyfriend, both having sex and having given them the 5 various drugs that were given. 6 MR. BRIAN GROVER: Right. And so that -- 7 although the -- the homicide was December 24th, 1990, it 8 was after Paul Bernardo was arrested in -- I believe it 9 was February 1993 and statements were taken from Karla 10 Homolka that the story came out, is that right? 11 DR. JAMES CAIRNS: That's correct. 12 MR. BRIAN GROVER: Now, the other case, I 13 understand, is a pediatric case. The other case that came 14 to the office of the Chief Coroner's attention in 1993, 15 and that was a case that had taken place in Barrie in 16 1979. 17 Is that right? 18 DR. JAMES CAIRNS: That's correct. 19 MR. BRIAN GROVER: Can you tell us a bit 20 about that, please, Dr. Cairns? 21 DR. JAMES CAIRNS: Very, very briefly. I 22 got a call from Inspector McNeill (phonetic) from the 23 Ontario Provincial Police and said, We are -- we've had a 24 -- a complaint -- or we've had someone come forward and 25 saying that he thinks his wife murdered their infant
2341 child. 2 And when marriages break up, everybody's 3 not exactly friendly towards their ex-spouse. We don't 4 want to go on a wild goose chase, is there anything to 5 this? I pulled the file, and the file indicated that the 6 pathologist had found that the cause of death was SIDS, as 7 had the coroner. But looking in the body of the autopsy 8 report, this six (6) month child had a fra -- a healed 9 fractured femur. 10 Now, a six (6) month old does not normally 11 have a healed fractured femur. Inspector McNeill was 12 asked, Please go and search. Is there an innocent 13 explanation for this. Search OHIP, search family doctor, 14 search everything where you can to see if there is an 15 explanation. 16 Perhaps the child was in a motor vehicle 17 collision; that would explain it. When that was 18 completed, the answer came back, there was not explanation 19 for this at all. That resulted in a exhumation which 20 showed multiple other fractures related to this child, and 21 eventually the mother plead guilty to assault causing 22 bodily harm. 23 MR. BRIAN GROVER: Now, another area that 24 I'd like to ask you about is the post-mortem reports 25 themselves, either form 12 or form 14, in use in the 1980s
2351 and 1990s. Now, you testified just before the break that 2 an important innovation would be expansive post-mortem 3 reports. 4 Now was there anything preventing a 5 pathologist from providing more complete information on 6 the report provided in the 1980s and 1990s? 7 DR. JAMES CAIRNS: I'm aware of the type 8 of form that was being used and there may not have been 9 in that particular section a tremendous amount of area to 10 write, but there was nothing to prevent the pathologist 11 adding additional pages in terms of starting whatever the 12 section was and then say: See additional information on 13 page whatever. 14 So there was no -- there was no issue that 15 the pathologist wanted more room, that they could -- they 16 could do so. 17 MR. BRIAN GOVER: And in fact have you -- 18 I take it in your position you've reviewed a great many 19 autopsy reports, is that right, Doctor? 20 DR. JAMES CAIRNS: I have and I've 21 reviewed a significant number where the pathologist had 22 said I need addition -- additional room. 23 Dr. Chiasson, since he would more familiar 24 with it, can give you add -- added information on that. 25 MR. BRIAN GOVER: Would you say, though,
2361 from your perspective, was that practice of attaching 2 other sheets of paper, let's say, to provide further 3 information, was that common or uncommon? 4 DR. JAMES CAIRNS: It was common. 5 MR. BRIAN GOVER: Now I'd like to take 6 you now to the period of late January 2001, and of course 7 there was a week in that period when charges were 8 withdrawn, first of all, against Tyrell's caregiver on 9 January 22nd, 2001, and against Sharon's mother on 10 January 25th, 2001. 11 Now I understand that you had occasion to 12 speak to Crown counsel about the withdrawal of the charge 13 against Tyrell's caregiver, is that correct? 14 DR. JAMES CAIRNS: That's correct. I 15 was -- none of us were surprised with the announcement 16 that the charges in the Sharon case had been withdrawn. 17 In the Tyrell case, we were not aware of 18 it and I can't tell you whether it was the next day, but 19 within a week to two (2) week period of that I phoned 20 Frank Armstrong, the Crown. I knew Frank Armstrong; he 21 is a very, very, very senior Crown attorney in this 22 Province who's done probably in the hundreds of homicide 23 trials. And I phoned and said, Frank, what was the 24 problem with Dr. Smith in this case? 25 He said, Jim, there was no problem with
2371 Dr. Smith. I had no problem with his evidence at all, 2 but he was indicating that this was a non-accidental head 3 injury. There was a defence expert saying it was an 4 accidental head injury. And he said, I consulted with 5 Dr. Robin Humphries, who's a very well respected 6 neurosurgeon at The Hospital for Sick Kids, and he said 7 he wasn't sure whether it was non-accidental or 8 accidental and he would have to say his evidence would be 9 that it was undetermined. 10 Frank Armstrong said, The onus is on me to 11 have a reasonable prospect of conviction. I did not feel 12 I had that and I withdrew the charges. But he was not 13 indicating to me at that time any criticism of Dr. Smith, 14 per se. 15 MR. BRIAN GOVER: Now what impact, if 16 any, did -- did -- what -- Frank Armstrong, this very 17 experienced Crown attorney, have on you in your -- your 18 view as it stood then of Dr. Smith? 19 DR. JAMES CAIRNS: I think, as we've 20 mentioned earlier, I was aware of Amber's case, I was 21 aware of Jenna's case, I was aware of Gagnon and Reynolds 22 -- Sharon, sorry. 23 This one (1), once I got his explanation, 24 did not indicate to me that this was -- that this was an 25 issue other than another case where reputable experts can
2381 differ. 2 MR. BRIAN GOVER: Now, Doctor, after the 3 review conducted by Dr. Blair Carpenter in June 2001, Dr. 4 Smith was permitted to return to do non-criminally 5 suspicious, non-homicide medico-legal autopsies for the 6 Office of the Chief Coroner. 7 That leads to the question: Why -- why 8 did you bring Dr. Smith back at all at that point? 9 DR. JAMES CAIRNS: We were, at that 10 time, satisfied from Dr. Blair Carpenter's review that 11 his findings in non-medico-legal -- sorry, in non- 12 criminally suspicious and criminal cases had been 13 reviewed and found to be satisfactory. And the workload 14 at Sick Kids was such that they just could not continue 15 without some additional assistance. So it was felt we 16 would let him go back to do those cases where there was 17 evidence that he was appropriately -- had been 18 appropriately reviewed, and he was able to do those. 19 Those were -- would have been cases very 20 similar to the one's he would have been doing as a 21 pathologist at Sick Kids where they were not a criminal 22 case. And we were not aware that there were any issues 23 with that type of work at Sick Kids. 24 MR. BRIAN GOVER: Now you said, Dr. 25 Cairns, that the workload at Sick Kids was such that they
2391 couldn't continue without his assistance. 2 Was that an impression you formed on your 3 own, or -- or was that as a result of communication with 4 someone at Sick Kids? 5 DR. JAMES CAIRNS: No, there -- there 6 had been communication between Sick Kids and our office, 7 including Dr. Chiasson, myself, and perhaps Dr. Young, 8 about the urgent need, if possible, to have Dr. Smith 9 return on some form of basis. 10 MR. BRIAN GOVER: All right. 11 COMMISSIONER STEPHEN GOUDGE: Who from 12 Sick Kids would have contacted you? I mean, Dr. Smith 13 was the head of the unit. Would it -- 14 DR. JAMES CAIRNS: He was head of -- 15 COMMISSIONER STEPHEN GOUDGE: -- have 16 been the head of the Department? 17 DR. JAMES CAIRNS: -- the unit. He what 18 -- no, I -- 19 COMMISSIONER STEPHEN GOUDGE: Would it 20 have been the head of the Department? 21 DR. JAMES CAIRNS: Dr. -- Dr. Becker was 22 the head of the Department, and the two (2) other 23 pathologists, Dr. Cutz and Dr. Wilson were also -- 24 COMMISSIONER STEPHEN GOUDGE: Yes. So 25 would it have been Dr. Becker who called you? Or do you
2401 remember? 2 DR. JAMES CAIRNS: I don't specifically 3 remember, sorry, Commissioner. Dr. Chiasson may be able 4 to help you in that. 5 6 CONTINUED BY MR. BRIAN GOVER: 7 MR. BRIAN GOVER: Now, Dr. Cairns, you 8 were asked a series of questions by Ms. Rothstein about 9 your involvement in the Paolo Case, and the review that 10 you conducted there. 11 And I understand though that Dr. Chiasson 12 had ceased to be the Chief Forensic Pathologist in July 13 2001. 14 Is that correct? 15 DR. JAMES CAIRNS: That -- that is 16 correct. He -- 17 MR. BRIAN GOVER: So -- 18 DR. JAMES CAIRNS: -- he stepped down 19 and went back to being, at that time, a fee-for-service 20 pathologist. 21 MR. BRIAN GOVER: So, at the time you 22 conducted the review at the request of Ms. Cecchetto, 23 this Senior Crown Counsel as you've described her, from 24 the Crown Law Office Criminal, was there a Chief Forensic 25 Pathologist attached to the office?
2411 DR. JAMES CAIRNS: No, there was no 2 Chief Forensic Pathologist at that time. 3 MR. BRIAN GOVER: And so far as you're 4 aware, Dr. Cairns, was there anything preventing Ms. 5 Cecchetto or any other Crown Counsel from retaining their 6 own expert to conduct an independent review? 7 DR. JAMES CAIRNS: There was not. 8 9 (BRIEF PAUSE) 10 11 MR. BRIAN GOVER: Now, Dr. Cairns, we may 12 hear, and have heard to some extent, that Dr. Smith 13 sometimes provided different information at the time 14 charges were laid then when he testified at the trial of 15 these cases. 16 Did you ever speak with Dr. Smith about 17 his changing opinions? 18 DR. JAMES CAIRNS: I did on a number of 19 occasions, and he would indicate, Well, that was my 20 opinion then, and as a result of further information, et 21 cetera, I have changed my opinion, or, I don't think the 22 police understood my opinion in the first place. 23 So there was this nebulas issue. It's 24 something I think I've mentioned to the Commissioner, 25 that a way of tying that down and making it much less
2421 likely that the opinion you give would change, would be 2 that you have not only your cause of death, but your 3 opinion regarding all of that in your primary report. 4 But having said that -- that's not being 5 critical of Dr. Smith -- nobody else was doing that. But 6 in hindsight, I think that would tie down the -- it would 7 make it much less likely that you would say one (1) thing 8 in a verbal and then -- or say one (1) thing in a report 9 and then say something different on the witness stand. 10 MR. BRIAN GOVER: And, Dr. Cairns, the 11 final area that I'd like to canvas with you, relates to 12 communication with police officers and Crown attorneys. 13 And I understand that you were a regular lecturer at 14 Crown Attorney's Summer School Programs. 15 Is that correct? 16 DR. JAMES CAIRNS: That's correct. 17 MR. BRIAN GOVER: And you spoke regularly 18 to police forces as part of training programs for them? 19 DR. JAMES CAIRNS: That's correct. 20 MR. BRIAN GOVER: And your job, of 21 necessity, as we've seen today and yesterday, put you in 22 contact with police officers and Crown attorneys. 23 Is that right? 24 DR. JAMES CAIRNS: I would have been 25 very familiar with all the major police departments in
2431 the Province, and would have had a pretty good working 2 relationship with most of the Crown attorneys in the 3 Province as well, yes. 4 MR. BRIAN GOVER: All right. And that 5 included people at the Head Office Unit for the Criminal 6 Law Division, the Crown Law Office Criminal. 7 Is that fair? 8 DR. JAMES CAIRNS: That's correct. 9 MR. BRIAN GOVER: And, in addition, you 10 actually had seconded Crown counsel working in your 11 office, isn't that right? 12 DR. JAMES CAIRNS: That's correct. 13 MR. BRIAN GOVER: That you had, first of 14 all, Mr. Wolski, as he then was, as Chief counsel to the 15 Office of the Chief Coroner, is that correct? 16 DR. JAMES CAIRNS: That's cor -- that's 17 correct. 18 MR. BRIAN GOVER: And he was seconded 19 from the Crown Law office, Criminal, is that correct? 20 DR. JAMES CAIRNS: That's correct. 21 MR. BRIAN GOVER: And you had Mr. 22 O'Marra. And Mr. O'Marra was in that position for almost 23 a decade, is that right? 24 DR. JAMES CAIRNS: That's correct. 25 MR. BRIAN GOVER: Seconded from the Crown
2441 attorney's office in Brampton, is that right? 2 DR. JAMES CAIRNS: That's correct. 3 MR. BRIAN GOVER: And they maintained and 4 were expected to maintain communication with their 5 colleagues, isn't that fair? 6 DR. JAMES CAIRNS: They expected to -- 7 and -- and did do so; they all were frequently be 8 lecturing at the same Crown schools. And it meant that 9 with those connections you obviously knew a lot more of 10 the Crowns because of their connection. 11 Bev Brown was there for a period, too, 12 before she was appointed to the Bench. So we had 13 initially just one (1) counsel and it is now up to four 14 (4) or five (5) counsel who have been seconded for a 15 period of time to our office. 16 MR. BRIAN GOVER: From the Criminal Law 17 Division of the Attorney General's Ministry, is that 18 correct? 19 DR. JAMES CAIRNS: There is, exac -- 20 there is one (1) counsel who now comes from the Ministry 21 of Labour, and that's the first; before that they were 22 all people who were involved in the -- in -- in Crown 23 Law, Criminal in one (1) way or the other. 24 MR. BRIAN GOVER: So in addition, the 25 office had seconded two (2) police officers, is that
2451 right? 2 DR. JAMES CAIRNS: We had a number of 3 police officers from the Ontario Provincial Police and 4 for about ten (10) years we have had a Peel Regional 5 Police homicide detective seconded for a two (2) year 6 period. 7 MR. BRIAN GOVER: And the -- the Ontario 8 Provincial Police officers came from what branch, then? 9 DR. JAMES CAIRNS: They -- they -- they 10 did not -- they -- some of them came from the Criminal 11 Investigation Branch, others of them came from the 12 Detective Branch. 13 MR. BRIAN GOVER: Now apart from the 14 issue of timeliness of reports, prior to 2001 did you 15 ever receive complaints from Crown attorneys or the 16 police about the quality of Dr. Smith's work or his 17 competence? 18 DR. JAMES CAIRNS: I heard -- I heard 19 only with the issue about the timeliness of his report, 20 with the exception that there were one (1) or two (2) 21 occasions when I would hear he said one (1) thing now and 22 now he said another thing, but that was in the context 23 of, Well, he's got different information and he's changed 24 his mind. 25 MR. BRIAN GOVER: But as for the quality
2461 of his work in forensic pathology? 2 DR. JAMES CAIRNS: I had not received 3 any formal complaints, no, from -- or informal complaints 4 from either the police or the Crowns. 5 MR. BRIAN GOVER: Thank you very much, 6 Doctor. Those are my questions. 7 COMMISSIONER STEPHEN GOUDGE: Dr. Cairns, 8 was it -- I take it it was not the practice for 9 pathologists when they acquired new information to 10 prepare supplementary reports. 11 We heard last week from the three (3) 12 doctors who were here last week that their practice is to 13 do that. That, I take it, simply was not the practice? 14 DR. JAMES CAIRNS: It -- it -- I -- it - 15 - to the best of my knowledge, it was not the practice 16 routine; some may have done it, but the majority would -- 17 would not have done it. But clearly it's a very good 18 practice, particularly if that additional information is 19 going to dramatically alter your opinion and cause and 20 manner of death. 21 COMMISSIONER STEPHEN GOUDGE: Okay. 22 Thanks. 23 Mr. Gover, you're not going to use your 24 full hour? 25 MR. BRIAN GOVER: I'm not. Thank you,
2471 Commissioner. 2 COMMISSIONER STEPHEN GOUDGE: Okay. So 3 we have you as -- I have you as -- let me see if I've got 4 this right, half an hour tomorrow in re-examination. 5 MR. BRIAN GOVER: Yes, thank you. 6 COMMISSIONER STEPHEN GOUDGE: Yes. Not 7 starting tomorrow, but at the end of tomorrow. 8 Okay, Ms. Baron, let's get started with 9 you, if that's all right. 10 MS. ERICA BARON: Well, actually, 11 Commissioner, the witness has now covered all the areas 12 that we were going to cover so we don't have any 13 questions. 14 COMMISSIONER STEPHEN GOUDGE: Okay, 15 that's good news. 16 We have about twelve (12) minutes, Mr. 17 Campbell, but we've just saved some time. Do you want to 18 start? 19 MR. PHIL CAMPBELL: Well, I thought I was 20 going to start tomorrow, Commissioner, but I can fill the 21 air. 22 COMMISSIONER STEPHEN GOUDGE: Mr. 23 Carter...? 24 MR. WILLIAM CARTER: Commissioner, could 25 we know the order and how much time --
2481 COMMISSIONER STEPHEN GOUDGE: Sorry, I 2 thought I had scratched this out and I -- why don't we do 3 this. Why don't we break now. Mr. Centa can distribute 4 what I have scribbled out here, although it is now 5 typewritten -- except without my notes on it -- and we 6 will start then with you, Mr. Campbell at 9:30 tomorrow 7 morning. 8 MR. PHIL CAMPBELL: Certainly. 9 COMMISSIONER STEPHEN GOUDGE: And the one 10 (1) imperative is that we conclude Dr. Cairns' evidence 11 by lunch time on Thursday. You will see that we nicely 12 accomplish that with the allocations that I've made. So, 13 I'll be asking each of you to stick to them. I think 14 we've pretty well managed to allot the time 15 appropriately. 16 So, we'll rise now until 9:30 tomorrow 17 morning. 18 19 --- Upon adjourning at 4:17 p.m. 20 21 Certified Correct, 22 23 ___________________ 24 Rolanda Lokey, Ms. 25