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 28th 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler (np) ) 4 Robert Centa ) 5 Johnathan Shime (np) ) 6 Jennifer McAleer (np) ) 7 8 Brian Gover ) 9 Luisa Ritacca ) Office of the Chief Coroner 10 Teja Rachamalla ) for Ontario 11 12 Jane Langford (np) ) Dr. Charles Smith 13 Niels Ortved (np) ) 14 Erica Baron ) 15 Grant Hoole ) 16 17 William Carter ) Hospital for Sick Children 18 Barbara Walker-Renshaw (np) ) 19 Kate Crawford ) 20 21 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 22 ) Association 23 24 25
31 APPEARANCES (CONT'D) 2 Mara Greene (np) ) Criminal Lawyers' 3 Breese Davies ) Association 4 Joseph Di Luca (np) ) 5 Jeffery Manishen (np) ) 6 7 James Lockyer ) William Mullins-Johnson, 8 Alison Craig ) Sherry Sherret-Robinson and 9 Phil Campbell (np) ) seven unnamed persons 10 11 Peter Wardle ) Affected Families Group 12 Julie Kirkpatrick (np) ) 13 Daniel Bernstein (np) ) 14 15 Louis Sokolov ) Association in Defence of 16 Vanora Simpson ) the Wrongly Convicted 17 Elizabeth Widner ) 18 Paul Copeland ) 19 20 Jackie Esmonde (np) ) Aboriginal Legal Services 21 Kimberly Murray ) of Toronto and Nishnawbe 22 Sheila Cuthbertson (np) ) Aski-Nation 23 Julian Falconer ) 24 25
41 APPEARANCES (cont'd) 2 Suzan Fraser ) Defence for Children 3 ) International - Canada 4 5 William Manuel (np) ) Ministry of the Attorney 6 Heather Mackay (np) ) General for Ontario 7 Erin Rizok (np) ) 8 Kim Twohig (np) ) 9 10 Natasha Egan (np) ) College of Physicians and 11 Carolyn Silver (np) ) Surgeons 12 13 Michael Lomer (np) ) For Marco Trotta 14 Jaki Freeman ) 15 16 17 18 19 20 21 22 23 24 25
51 TABLE OF CONTENTS 2 Page No. 3 4 STEPHEN JAMES CAIRNS, Resumed 5 6 Cross-Examination by Mr. Phil Campbell 6 7 Cross-Examination by Mr. Peter Wardle 102 8 Cross-Examination by Mr. Louis Sokolov 186 9 Cross-Examination by Mr. Joseph Di Luca 199 10 Cross-Examination by Mr. Julian Falconer 215 11 Cross-Examination by Ms. Suzan Fraser 236 12 13 14 Certificate of transcript 256 15 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 6 STEPHEN JAMES CAIRNS, Resumed 7 8 COMMISSIONER STEPHEN GOUDGE: Good 9 morning. Mr. Campbell...? 10 MR. PHIL CAMPBELL: Thank you, 11 Commissioner. Good morning, Dr. Cairns. 12 DR. JAMES CAIRNS: Good morning, Mr. 13 Campbell. 14 15 CROSS-EXAMINATION BY MR. PHIL CAMPBELL: 16 MR. PHIL CAMPBELL: I -- I act for a 17 number of the persons who were accused and convicted in 18 connection with testimony given by Dr. Smith. 19 I don't want to take you again through all 20 of the well-documented errors attributed to Dr. Smith and 21 -- and I recognise that Ms. Rothstein covered many of 22 them admirably, but I do want to take you to two (2) 23 points of pathology; one (1) from Nicholas' case and one 24 (1) from Paolo's case. 25 And -- and I'd like to round out a point
71 of -- of uncertainty, I think, in your testimony-in- 2 chief. You said that you did not take Dr. Smith to be 3 citing the thoracic petechiae as indicative of possible 4 asphyxia as a cause of death. 5 DR. JAMES CAIRNS: Can you help me; which 6 -- which case are we referring to? 7 MR. PHIL CAMPBELL: We're talking about 8 Nicholas' case, I -- I apologise. 9 DR. JAMES CAIRNS: In Nicholas' case I 10 did not take the presence of thoracic petechiae to be 11 indicating asphyxia. 12 MR. PHIL CAMPBELL: Did you take Dr. 13 Smith to be suggesting that it indicated asphyxia? 14 DR. JAMES CAIRNS: In certainly reading 15 through the material that I prepared for this Inquiry, 16 there is a stage in that that it appears that he is 17 taking that as a -- in his statement regard -- if it 18 isn't a head injury, it's asphyxia. 19 MR. PHIL CAMPBELL: And the support for 20 that alternative possibility was the thoracic petechiae? 21 DR. JAMES CAIRNS: That is my assumption. 22 MR. PHIL CAMPBELL: I wonder if we can 23 call up fr -- Dr. Cairns, from Volume II, Tab 12, 24 PFP143263, and go to page 42 of that document. Yeah, 25 this is -- this is the phrasing in the overview report,
81 paragraph 118. 2 MR. ROBERT CENTA: 42 in the overview 3 report. 4 COMMISSIONER STEPHEN GOUDGE: It's the 5 white volume, one (1) of the white volumes, Dr. Cairns. 6 Yes. 7 DR. JAMES CAIRNS: Tab again, please? 8 MR. PHIL CAMPBELL: It should be Tab 12 9 of those volumes. That's a point I'm taking on faith. 10 DR. JAMES CAIRNS: Yes, okay, I've got 11 Tab 12 and... 12 COMMISSIONER STEPHEN GOUDGE: So far so 13 good. 14 15 CONTINUED BY MR. PHIL CAMPBELL: 16 MR. PHIL CAMPBELL: Paragraph 118. Your 17 attention was drawn to this Monday with Ms. Rothstein. 18 DR. JAMES CAIRNS: I've got paragraph 19 118. 20 MR. PHIL CAMPBELL: And you will note 21 that in the third line, the sentence beginning, "the 22 evidence", continues: 23 "The evidence supporting such a 24 possibility was the presence of 25 thoracic petechiae, although Dr. Smith
91 noted these findings could be seen in a 2 variety of other causes of death". 3 And I believe there was some ambiguity at 4 the end of your testimony on Monday about whether Dr. 5 Smith was advancing asphyxia as a possible cause of 6 death, and the petechiae as evidence of it? 7 DR. JAMES CAIRNS: As I read that, "The 8 evidence supporting such a possibility," and that's the 9 possibility of an asphyxial type of death. 10 "Supporting was the presence of 11 thoracic petechia, although Dr. Smith 12 noted these findings could be seen in a 13 variety of other causes of death". 14 The way I read that is that he was 15 considering the thoracic petechia in and of themselves 16 could be explained possibly by -- by an asphyxial mode of 17 death. 18 MR. PHIL CAMPBELL: Would you attribute 19 to thoracic petechiae, that level of probative value? 20 DR. JAMES CAIRNS: I consider it a non- 21 specific finding that is irrelevant and would not -- 22 would not add any evidence or strength to the issue that 23 it was an asphyxial mode of death. 24 MR. PHIL CAMPBELL: And would that have 25 been your understanding of the relevant medical science
101 at the time that you were involved in reviewing the 2 Nicholas Case? 3 DR. JAMES CAIRNS: Yes, it would have 4 been. 5 MR. PHIL CAMPBELL: All right. Then to 6 make clear what Dr. Smith was saying, I'd like to take us 7 to PFP008407. Which I trust will emerge as -- at 8 paragraph 50 of that document, which I trust will emerge 9 as the -- the affidavit that Dr. Smith submitted in this 10 case. 11 MS. LINDA ROTHSTEIN: Commissioner, Dr. 12 Cairns doesn't appreciate, he doesn't have the overview 13 report. The underlying documents are not before him, and 14 he's going to have to look at the screen. 15 16 CONTINUED BY MR. PHIL CAMPBELL: 17 MR. PHIL CAMPBELL: This will only come 18 up on your screen. I don't have a Volume and Tab number. 19 If you see in paragraph 50, Dr. Smith said: 20 "In my discussions of the case with Dr. 21 Cairns, Dr. Uzans and the Sudbury 22 police officers, I indicated that while 23 the cerebral edema was most likely due 24 to brunt -- blunt force injury, the 25 possibility that it resulted from a
111 slow asphyxial process could not be 2 excluded. The evidence to support an 3 asphyxia mode of death is the presence 4 of thoracic petechiae. However, their 5 presence does not necessarily indicate 6 that death resulted from airway 7 obstruction". 8 I'd suggest to you, Dr. Cairns, that it is 9 clear that Dr. Smith was firstly suggesting the 10 possibility of slow asphyxial death, that is smothering 11 and, secondly, that he was drawing on the presence of the 12 petechial hemorrhaging as the only piece of evidence in 13 support of that possibility, true? 14 DR. JAMES CAIRNS: The way I read that 15 paragraph is that he felt the cerebral edema was most 16 likely due to blunt force injury. However, if that 17 wasn't the case, the -- the possibility also existed of a 18 slow smothering process due to the presence of thoracic 19 petechiae. Am I getting -- is that a fair -- 20 MR. PHIL CAMPBELL: That's my reading of 21 it as well. 22 DR. JAMES CAIRNS: Yes. That's correct. 23 And if he's basing the presence of thoracic petechia as a 24 theory, there's no foundation to base -- to base that on 25 that theory.
121 MR. PHIL CAMPBELL: He says though, in 2 that affidavit, in that very paragraph, that in his 3 discussions of the case with you and two (2) other -- I'm 4 sorry, one (1) other doctor and the police, he 5 communicated that with you. 6 Do you remember him doing that? 7 DR. JAMES CAIRNS: Yes, and I think in my 8 evidence, so far, I was supporting Dr. Smith with regard 9 to the fact that this was a head injury and was a non- 10 accidental head injury. I do not recall me ever saying I 11 was supporting that this was asphyxia due to smothering 12 or due to the fact that I found significance in the 13 petechial haemorrhages. 14 MR. PHIL CAMPBELL: You did not endorse 15 the petechial haemorrhage/asphyxia connection back in the 16 '90s when you were reviewing the case? 17 DR. JAMES CAIRNS: That is correct. 18 MR. PHIL CAMPBELL: Did you, at that 19 time, appreciate that it represented a fairly significant 20 error or serious over-interpretation of evidence by Dr. 21 Smith? 22 DR. JAMES CAIRNS: The wording of his was 23 softer. He wasn't saying the petechial haemorrhages on 24 the thorax indicated that it was asphyxia. He's 25 indicating that it could not be excluded, so there's a
131 slight difference there. 2 And I really wasn't -- I -- I didn't pay 3 much attention because I didn't think the weight he was 4 putting on that was of any significance. 5 MR. PHIL CAMPBELL: Because you were not 6 -- you were not drawing any significance from the 7 possibility of asphyxia or the petechial haemorrhage? 8 DR. JAMES CAIRNS: The presence of 9 petechial haemorrhage in the thorax would not make it -- 10 they're in all sorts of deaths. It's of no significance 11 in terms of what the cause of death is. 12 MR. PHIL CAMPBELL: And if we scroll down 13 through 51, we will see that Dr. Smith acknowledges that 14 they can occur in a variety of causes of death, but -- 15 DR. JAMES CAIRNS: And indeed, I have -- 16 MR. PHIL CAMPBELL: Can you scroll down 17 to the next page of that document? 18 DR. JAMES CAIRNS: -- that's -- thank 19 you. 20 MR. PHIL CAMPBELL: Thank you. 21 DR. JAMES CAIRNS: And as I say, and they 22 can occur in just the terminal event of any dying 23 process. And that, as far as I'm concerned, is the only 24 significance you can put on thoracic petechial. If 25 you're going to talk about any significance to -- to
141 petechial haemorrhages, they must be in the eyes or on -- 2 on the skin surrounding the eyes or on the face, 3 otherwise they're completely nonspecific. 4 MR. PHIL CAMPBELL: And you would not 5 have sighted them in support of even the alternative 6 construction of a slow asphyxial death? 7 DR. JAMES CAIRNS: I would not. 8 MR. PHIL CAMPBELL: Turning now to 9 Paolo's case. We've seen that you lent your support to 10 Dr. Smith's findings in that case in rather unequivocal 11 terms in Volume II, Tab 42 of your materials and 12 PFP014595. And again, we've looked at this. 13 We see that in this document which is from 14 the fall of 2002, more than twenty (20) months after Dr. 15 Smith has been taken off the criminal autopsy roster, 16 that you say you have completed a thorough review of Dr. 17 Smith's work in relationship to the death of Paolo. 18 Was your thorough review anything more 19 than a paper review? 20 DR. JAMES CAIRNS: No, it was not. 21 MR. PHIL CAMPBELL: Were you aware at the 22 time that -- that Paolo's remains had been exhumed? 23 DR. JAMES CAIRNS: I, in fact, was one 24 (1) of the people who had initiated the exhumation of -- 25 of Paolo's body.
151 MR. PHIL CAMPBELL: And did you know that 2 the remains were still -- had not be re-interred? 3 DR. JAMES CAIRNS: No, I did not know 4 that. That did come to my attention when Dr. Pollanen 5 was trying to do a more in-depth review and, in fact, 6 indicated that it ha -- there were -- there were -- that 7 the significant -- that the skull, in particular, had 8 been -- had been retained and he was examining it. 9 MR. PHIL CAMPBELL: Sir, that came to 10 your attention much later -- 11 DR. JAMES CAIRNS: That came to my 12 attention when Dr. Pollanen was -- was doing a review of 13 the Paolo case. 14 MR. PHIL CAMPBELL: And you understand 15 from your familiarity with Paolo's case that the issue of 16 the timing of the skull fractures was pivotal to 17 determinations made about criminal liability? 18 DR. JAMES CAIRNS: Correct. 19 MR. PHIL CAMPBELL: And that Dr. Smith 20 had given the opinion to the jury that the skull 21 fractures which he had seen on exhumation were from -- 22 anywhere from minutes before death to a couple of days 23 before death. 24 DR. JAMES CAIRNS: Correct. 25 MR. PHIL CAMPBELL: And that that had
161 implications -- and serious implications -- for who might 2 have caused his death if it was otherwise a homicidal 3 death. 4 DR. JAMES CAIRNS: Correct. 5 MR. PHIL CAMPBELL: And reference was 6 made in your testimony on Monday to the fact that the 7 Supreme Court accepted, as fresh evidence, the testimony 8 of Dr. Avis from Newfoundland and Dr. Pollanen from 9 Ontario that these were not recent skull fractures, but 10 were rather well-healed skull fractures. 11 But I'd like to take you, if I may, to the 12 testimony on that point to -- to make clear their 13 findings; that is, those two (2) reviewing doctors, Avis 14 and Pollanen, how clear and obvious it was to them that 15 these were well healed and not recent fractures. 16 PFP151985 from pages 22 and 23. Let's 17 pick it up with his long answer in the middle of the page 18 at line 12: 19 "To examine Paolo's skull to see the 20 fracture and to opine that that 21 fracture is from minutes to, at most, 22 two (2) days old simply boggles my 23 mind. I cannot see how anyone, 24 particularly anyone with the status 25 that Dr. Smith enjoyed at that time,
171 could possibly reach that conclusion. 2 It escapes me. I think if a panel of 3 lay people were given that skull, they 4 would find it just as difficult for me 5 to understand how that conclusion was 6 reached. 7 Q: So you don't even need to be a 8 pathologist to see that the fracture 9 was healed? 10 A: As I say, the day I came up here to 11 examine the skull I was very concerned 12 when I left the Coroner's Office. Even 13 though I examined the skull inside, 14 outside, upside, backside, I came out 15 of that office thinking I must have 16 missed something. I can't possibly 17 believe that anyone with any knowledge 18 of pediatrics, paediatric autopsies or 19 pathology of medicine could reach the 20 conclusion that that was a fracture 21 that, at most, was two (2) days and 22 probably only two (2) to three (3) 23 minutes or two (2) to ten (10) minutes. 24 I still, to this day, stand in wonder". 25 Obviously, Dr. Avis' opinion is
181 unequivocal on that point and colourfully expressed. 2 DR. JAMES CAIRNS: Yes, it is. 3 MR. PHIL CAMPBELL: You didn't have the 4 opportunity, you're saying, to see the same material as 5 that opinion rests on? 6 DR. JAMES CAIRNS: That's correct. 7 MR. PHIL CAMPBELL: And, to round it out, 8 Dr. Pollanen speaks in more measured, but unambiguous 9 terms, I'll suggest, at page 181 of the same document, 10 where he is being questioned by Mr. Lockyer at question 11 553. 12 "Fair enough. Now, with respect to the 13 issue of whether or not it was a healed 14 fracture, sir, you, having examined it 15 as you did; the exhumed skull, and 16 observed the fracture, how apparent was 17 it that the fracture was a healed 18 fracture as opposed to a recent 19 fracture, sir. 20 A: Readily apparent". 21 I'd just like to ask you if, in your 22 survey now, with the advantage of hindsight which we are 23 all enjoying here, it is clear that many of the errors 24 made by Dr. Pollanen -- pardon me, by Dr. Smith -- in -- 25 including errors that you endorse, were obvious and
191 rudimentary errors, rather than close calls or 2 differences in judgment? 3 DR. JAMES CAIRNS: Clearly, from looking 4 at what Dr. Avis and Dr. Pollanen have said, they are 5 rudimentary evidence as far as they're concerned if a 6 pathologist is looking at the material. 7 MR. PHIL CAMPBELL: Rudimentary errors. 8 DR. JAMES CAIRNS: To a pathologist. 9 MR. PHIL CAMPBELL: All right. 10 DR. JAMES CAIRNS: Yes. 11 MR. PHIL CAMPBELL: They -- and they 12 might have been obvious and rudimentary errors to you if 13 Dr. Avis is correct and you had had the opportunity to 14 look at the skull? 15 DR. JAMES CAIRNS: If I'd had the 16 opportunity to look at the -- opportunity to look at the 17 skull, I would say I was not in any way qualified to look 18 at the skull. 19 MR. PHIL CAMPBELL: Even given that 20 opportunity, you would not have taken it. 21 DR. JAMES CAIRNS: Even given that 22 opportunity, because that opportunity did -- did arise 23 during the period that Dr. Pollanen was doing his review, 24 and there was discussion that the skull, in fact, was 25 available.
201 And there was a discussion about that Dr. 2 Pollanen could not see the skull fractures, and I 3 recommended that he go and see Dr. Paul Babyn, who is a 4 radiologist at Sick Kids, who with the other experts, 5 shall we say, who might be able to give an opinion on the 6 -- the freshness or the state of healing of the skull. 7 MR. PHIL CAMPBELL: Dr. Avis and Dr. 8 Pollanen appear to have rested their opinion simply on -- 9 on looking at it, is that fair to say? 10 DR. JAMES CAIRNS: I do know that before 11 Dr. Pollanen came to his conclusion he did go and have a 12 significant conversation with Dr. Babyn, although I 13 cannot tell you whether that conversation was just to 14 confirm an opinion he had already reached or whether that 15 discussion was part of him reaching his -- his opinion. 16 MR. PHIL CAMPBELL: I -- I want to turn 17 from the specifics of the pathology in individual cases 18 to the concept of "thinking dirty". 19 And let me begin by saying that I 20 appreciate that that is just an attention-grabbing 21 metaphor and -- and that, again, with the advantage of 22 hindsight a great deal can be read into it that was not 23 indicated at that point. 24 DR. JAMES CAIRNS: I think that's a fair 25 statement.
211 MR. PHIL CAMPBELL: All right, but I'm 2 not -- having said that, I'm not going to let this go 3 because I'm going to suggest to you that it's quite 4 important. Let's get beyond the metaphor to the 5 substance of this. 6 Part of the genesis of the "think dirty" 7 instruction lies in the coroner's counsel report chaired 8 by Justice Then in the Montan's case, correct? 9 DR. JAMES CAIRNS: Correct. 10 MR. PHIL CAMPBELL: And if we can call up 11 PFP152228, you'll find that in Volume I of your 12 materials. And again, I'm at a loss as to whether those 13 are white volumes or black volumes. 14 MS. LINDA ROTHSTEIN: Black Volume. 15 MR. PHIL CAMPBELL: Black volumes. At 16 Tab 4, and it is on the screen PFP152228, and this is a 17 recommendation which emerges from that report near its 18 conclusion at page 47 of the document. 19 I think we need to go to the next page. 20 You will see at (b)(.3); that is roman -- small roman 21 numeral iii: 22 "New coroners should be trained to have 23 a high index of suspicion to assume 24 that all deaths are homicides until 25 they are satisfied that they are not".
221 Now is that a more substantive and less 2 metaphorical description of what is meant by "think 3 dirty?" 4 DR. JAMES CAIRNS: It is a more 5 substantive explanation of what "think dirty" means. I 6 think in the memo that we put out for the investigation 7 of Children Under Two (2) the words "think dirty" are in 8 quotations and then there is a sentence following that 9 that I think very closely mirrors what this is saying. 10 MR. PHIL CAMPBELL: All right. And I 11 just want to ask you about that from two (2) 12 perspectives; that concept that one should assume a death 13 is a homicide until satisfied that it is not. Let's look 14 at it first scientifically. 15 Obviously scientists, or at least research 16 scientists, are very concerned in many cases to establish 17 causation; that some disease or some outcome is a result 18 of some -- some event, whether it's a -- an infectious 19 event or a traumatic event, do you understand what I'm 20 saying? 21 DR. JAMES CAIRNS: I do. 22 MR. PHIL CAMPBELL: Their causation is an 23 important question. 24 DR. JAMES CAIRNS: Yes. 25 MR. PHIL CAMPBELL: Would you agree with
231 me that as a -- as a scientific matter, a research 2 scientist would not publish a conclusion as authoritative 3 by saying, I have assumed my outcome and since it was -- 4 since I was not able to prove that it was untrue, I, 5 therefore, concluded that it was true? 6 DR. JAMES CAIRNS: Well, you've got two 7 (2) parts to that. I assume my outcome, and since I 8 can't prove that it isn't -- that it is true. I would 9 disagree with that -- that thinking. 10 MR. PHIL CAMPBELL: That would be 11 unscientific thinking? 12 DR. JAMES CAIRNS: That would be 13 unscientific thinking. 14 MR. PHIL CAMPBELL: And is it -- is that 15 in substance -- taking the words as they appear, is that 16 in substance different from the substantive definition of 17 "think dirty" that I -- I've given to you? 18 DR. JAMES CAIRNS: The -- the think dirty 19 -- and I -- I'll give you two (2) examples. The Montans' 20 example, this was treated as a car crash, an accidental 21 death in a car crash. And no consideration was given to 22 the possibilities that this may not be an accident. 23 And since you only get one (1) opportunity 24 to examine the scene 'cause once the scene is gone, it's 25 gone forever, it is, therefore, essential, since you're
241 only going to have that, to ensure that you process the 2 scene and you process the body in the appropriate manner 3 because you can't go back later and do it. 4 So by training the coroners and the police 5 to think dirty or to be suspicious, it means they will 6 close down that roadway and they then will examine the 7 evidence that's there to see, does it support the story 8 that it's accidental or, in fact, does it lead in an 9 opposite direction. 10 And in the case of -- of the police in 11 this situation, they did close down the road. As I 12 mentioned, they did find the tire marks that were, in 13 their opinion, not consistent with the story, so they got 14 concerned. The coroner, on the other hand, had been told 15 this was a -- a motor vehicle accident and since the 16 passenger was dead, we did not normally autopsy the 17 passenger, and at that time the coroner did not put his 18 mind to the fact, well, this is a husband and wife and 19 maybe there's more to it. 20 And the other unfortunate thing, at that 21 time, is the concerns that were being expressed by the 22 reconstructionist on the night of his examination -- or 23 probably to be more fair, the next day when -- when it 24 was -- when it was bright 'cause that's when I've seen 25 the photographs -- they came to the conclusion, hey,
251 there's something not right with this. 2 And in addition, the other officer said, I 3 don't -- I'm -- I'm concerned about the blood spatter. 4 Now, unfortunately, the police and the coroner didn't get 5 together for a day or two. And as we mentioned, 6 fortunately because of arguments -- but, in fact, when 7 the daughter asked for an autopsy, which was readily 8 agreed to by Dr. Lucas, the pathologist went in with the 9 mindset, this is a motor vehicle accident, and clearly in 10 retrospect did not appreciate that the pattern of bruises 11 that was on this lady were not the type of pattern of 12 bruises you get in a motor vehicle accident. 13 They were extremely consistent with the 14 type of batter when you have a struggle between the 15 deceased and another individual. So -- 16 MR. PHIL CAMPBELL: Dr. Cairns, if I may 17 just I -- I take what you've just told us to be closely 18 parallel to the examples that you gave in discussing this 19 issue with Ms. Rothstein the other day. 20 Are you adding anything to the description 21 of the Montans' case or -- and then I take it, you're 22 going on the description of the Homolka case, is that 23 right? 24 DR. JAMES CAIRNS: Well, actually I'm -- 25 the only think I'm adding is, it has been the experience
261 that unless you start considering from word go that this 2 is suspicious then you will not take the necessary 3 primary steps to seize the scene, so that you can then 4 properly analyse it. 5 So if you go in, oh, this is just this, 6 let it all go, open the traffic up. So you have to say, 7 no, we can't do this 'cause we can't rule out that 8 there's something to it and, therefore, you only get one 9 (1) chance to the scene. The same applied in -- in Mark 10 McAvoy, it was walked in, thought to be a suicide, and 11 they were out of there within an hour. 12 And the time that the penny dropped that 13 perhaps this was something different then they went back 14 to the scene, the scene had been entirely cleaned up. 15 While if they had been going on the more, okay, this is 16 what it appears, but don't let's take it at face value. 17 Let's wait till we have all the factual 18 evidence in before reaching that conclusion. And I think 19 that's the point I'm making, sir. 20 MR. PHIL CAMPBELL: All right. And I 21 want to just -- just break that down a little bit, 22 Doctor. Do you see the difference, analytically and 23 logically, between an instruction to coroners that says 24 avoid a Montans' case, avoid a McAvoy case, be open to 25 the entire range of possibilities about cause of death?
271 Do you see the difference between that 2 mode of analysis and a mode of analysis that encourages 3 coroners or pathologists to assume one (1) cause of 4 death, or one (1) mode of death, un -- until the opposite 5 is established, or until another one (1) is established. 6 Do you see the difference just as a matter 7 of -- of verbal logic? 8 DR. JAMES CAIRNS: I think as Justice 9 Then has -- is to have a high index of suspicion. 10 MR. PHIL CAMPBELL: And I'm fixed on the 11 latter half of that sentence -- 12 DR. JAMES CAIRNS: "And to assume" -- 13 MR. PHIL CAMPBELL: "to assume that all" 14 -- 15 DR. JAMES CAIRNS: "until -- until it's 16 proved otherwise". 17 MR. PHIL CAMPBELL: -- that all -- 18 DR. JAMES CAIRNS: What I mean by that 19 is, treat all scenes in the same way as you would treat a 20 homicide scene, and therefore you will go to much more 21 diligence in ensuring that you collect all the necessary 22 material so you'll be able to make an objective finding 23 rather then a speculative finding. 24 MR. PHIL CAMPBELL: Do you not see that 25 as a description of a way of thinking?
281 "Assume that all deaths are homicides 2 until they are satisfied that they are 3 not." 4 DR. JAMES CAIRNS: What I see that as, 5 that you -- the -- the worst thing is a homicide. So you 6 want to rule out a homicide. I'll put it to you like 7 this. 8 I used to do emergency medicine. And of 9 the -- if a -- a middled age man came in with chest pain, 10 that was a heart attack until proved otherwise. Why? 11 Because that was the most critical thing to have. 12 So if I miss a heart attack, I -- I'm in 13 real problem; the man may die. So I'm assuming that, and 14 I continue along that line until I do all the appropriate 15 tests that would help me to say, I'm very glad that that 16 assumption is wrong -- you do not have a heart attack. 17 And I put it very much in the same way. 18 And I've talked to most of my colleagues who do emergency 19 medicine, and people who do emergency medicine think the 20 worst. Because if you've missed that, it's -- it's a 21 disaster. 22 Think the worst, and you're relieved when 23 it isn't. But if I say to this man, Oh, you've only got 24 indigestion. We're not doing an ECT on you. Go on home, 25 and if you're not any better tomorrow, come and see me.
291 And I get the call he's dead. So I put it 2 in the very same -- the very same way, sir. 3 MR. PHIL CAMPBELL: And I understand 4 that, as a motive medical diagnosis. In that instance 5 when you order a battery of tests, if you cannot 6 eliminate heart attack, you conclude that it is a heart - 7 - you ultimately conclude that it is a heart attack? 8 DR. JAMES CAIRNS: Actually, if we could 9 not, to a degree of satisfaction at that time, rule out a 10 heart attack, we would then monitor the patient for three 11 (3) or four (4) or five (5) days until further 12 information was available that may help us in a more 13 definitive answer. 14 MR. PHIL CAMPBELL: But definitive 15 answers are available about whether a person's had a 16 heart attack? 17 DR. JAMES CAIRNS: Most of the time, but, 18 unfortunately, our office investigates quite a few deaths 19 where it wasn't as definitive as was thought. 20 MR. PHIL CAMPBELL: Let me go at it from 21 another perspective. Your critique of the pathologist in 22 the Montans case, or the coroner in the Montans Case, I 23 guess; and it's a provocative case. 24 Is that he went into the death 25 investigation with a presumption, and as a result,
301 finding nothing that excluded that presumption, and not 2 looking, he -- he treated his presumption an accidental 3 death, as being the truth, correct? 4 DR. JAMES CAIRNS: That's correct. 5 MR. PHIL CAMPBELL: Do you see how in 6 that case a presumption actually skewed his 7 investigation? 8 DR. JAMES CAIRNS: A presumption without 9 further analysis will askew, but a presumption or a 10 starting aspect, where you then have to detail it, 11 consider, is that correct, is a different matter. 12 So he started off thinking it was an 13 accident. However, had he said, Well it doesn't have to 14 be an accident. I will only be able to come to the 15 conclusion it's an accident if the other aspects of the 16 investigation are -- will confirm that. 17 So what happened in that case, there was 18 no consideration on his part, at the time, in the middle 19 of the night to say, Well, what has the reconstructionist 20 at the scene of the collision; what are they telling us 21 about how this -- how this incident occurred. 22 MR. PHIL CAMPBELL: What is a pathologist 23 or a coroner to do if he works from an assumption of 24 homicide -- he or she does -- and then finds that there 25 is no evidence that displaces that assumption.
311 Does that mean that that gets returned to 2 the -- 3 DR. JAMES CAIRNS: No, a negative does 4 not mean a positive. What we will have here that -- and 5 we -- we have had, I can tell you; I think it's been up 6 in evidence previously that our Death Under Five 7 Committee reviews the deaths of all children under the 8 age of five (5). 9 And we view those with a critical eye, and 10 we will often sit around, and in fact I -- I just -- 11 approximately, three (3) months ago, one (1) of the cases 12 was that of a -- a -- a young child with fractures in the 13 bones of the foot and that was concerning; there was 14 suspicions about these may be non-accidental fractures. 15 We then called a further detailed meeting, 16 including the coroner, the pathologist happened to be Dr. 17 Pollanen, myself, and the relevant police department. 18 And the bottom line of that was, Yes, these fractures are 19 suspicious, but we can't take it any further than that. 20 So they are suspicious, but suspicion 21 doesn't mean anything and we've got no other 22 confirmation, so in that case the cause of death was 23 written up as undetermined. And the "by what means" is 24 undetermined because although the fractures were saying, 25 Hey, we've got something going on there, unless you can
321 confirm that with objective, you can't take it any 2 further and it should be quite correctly put in -- in -- 3 in that undetermined category; it's a leap and it's a far 4 too big a leap to go from that to, Okay, this can't be 5 explained, so therefore, it's a homicide. 6 MR. PHIL CAMPBELL: So you would not 7 treat homicide as a default position in the absence of 8 evidence that disproves it. 9 DR. JAMES CAIRNS: Absolutely not. 10 MR. PHIL CAMPBELL: Do you believe and 11 are you confident that coroners across this province 12 understand that? 13 DR. JAMES CAIRNS: Yes, I am, but -- 14 MR. PHIL CAMPBELL: Did they understand 15 it in light of Memo 631? 16 DR. JAMES CAIRNS: In light of Memo 631, 17 I think they started to have that conception, but that 18 memo also indicated that the agencies involved better get 19 together for -- for case conferencing, as well. 20 And certainly since then, once the memo 21 about Death Under Two (2) and Death Under Five (5), they 22 all know that all of these cases now are not going to be 23 left at a local level for the local coroner, the local 24 pathologist, or the local police; that all of these cases 25 that might fit into a suspicious category are going to be
331 reviewed by a panel -- a central panel -- for further 2 discussion. 3 And many of those cases where they may 4 feel, We've got a homicide here; there will be a 5 discussion saying, We're not saying you don't, but you -- 6 we do not have the evidence from the medical side of 7 things to indicate that. 8 If you've got other evidence that is of a 9 non-medical nature, go with that. A similar case that I 10 was involved with and testified in Court was a -- a baby 11 that died. It was considered to be a SIDS and was 12 written as a SIDS. 13 Two (2) years later another baby was born 14 to the same individual and appeared to die under SIDS, as 15 well. We had concerns about that. Although you can have 16 two (2) SIDS, it's not -- it's rare, so we classified 17 both deaths then as sudden unexplained deaths, by what 18 means, undetermined. 19 So we haven't said it's a homicide. We 20 haven't ruled out it's a SIDS. We're just not that 21 comfortable with that. Now, I know what happened, 22 unfortunately, with Siroy Meadows (phonetic); one (1) 23 SIDS was a SIDS, two (2) SIDS was a homicide. 24 That was left at that -- it went no 25 further -- and a number of years later the mother
341 confessed to smothering both children, so on the 2 scientific evidence, there's no way that's a homicide. 3 And that -- those were converted from 4 sudden unexplained death, by what means, undetermined, 5 into smothering homicide, not on the basis of any 6 science, not on the basis of any police investigation; it 7 depended entirely that the evidence was coming from the 8 mother. 9 And if the evidence from the mother was -- 10 was solid and she was not psychotic, et cetera, then it 11 was going to be that that would move it from one (1) to 12 the other, and that -- that's -- that's an example of how 13 we look at these cases. 14 MR. PHIL CAMPBELL: How we look at them 15 today and how we should look at them in your view? 16 DR. JAMES CAIRNS: Absolutely. 17 MR. PHIL CAMPBELL: Was Dr. Smith part of 18 the drafting and conception of Memo 631 in the subsequent 19 protocol? 20 DR. JAMES CAIRNS: That's the one (1) 21 about the Death Under Five (5)? 22 MR. PHIL CAMPBELL: Yes. 23 DR. JAMES CAIRNS: Yes, he was. 24 MR. PHIL CAMPBELL: Was he, to your 25 knowledge, a proponent of "think dirty" as we have more
351 broadly examined it? 2 DR. JAMES CAIRNS: As we've more broadly 3 examined it in terms of, Listen, in the past, we've been 4 assuming these are all natural. We haven't been doing x- 5 rays, we haven't been doing this, we -- and, therefore, 6 we have to -- we have to be highly suspicious. We've 7 been missing in the past, we have to be highly 8 suspicious. 9 MR. PHIL CAMPBELL: And you've seen Dr. 10 Smith reason along those lines? 11 DR. JAMES CAIRNS: Yes. 12 MR. PHIL CAMPBELL: Have you also read 13 evidence from Dr. Smith where he appears to say, Here is 14 a body of evidence and inexplicable findings, and I am 15 concluding it is homicide unless something else is shown? 16 Have you seen Dr. Smith testify along those lines? 17 DR. JAMES CAIRNS: As I've read through 18 his testimony, I have seen that, and I'm quite surprised 19 because it's a leap. But, quite honestly, I was also 20 surprised that there were not objections from either the 21 Crown or the defence or the presiding judge in terms of, 22 Well, it isn't (a) so it must be (b). 23 So, I -- I was surprised. And I was 24 surprised that -- that he got away with it in court. 25 MR. PHIL CAMPBELL: Was anybody objecting
361 to anything Dr. Smith said back in the mid to late 90s? 2 DR. JAMES CAIRNS: As I mentioned to the 3 Commissioner yesterday, I think he was an idol and I 4 think he managed to successfully convince coroners, 5 pathologists, police, Crown attorneys, defence attorneys, 6 judges and the media. 7 MR. PHIL CAMPBELL: All right, and to -- 8 to close off my point about "think dirty" which I spent 9 more time on than I cared to, but I started going at it 10 scientifically. 11 If we go at it legally, we know that the 12 law presumes innocence until every element of an offence 13 is proven, including proof of homicide in a murder case, 14 right? 15 You understand that? 16 DR. JAMES CAIRNS: Absolutely. And 17 that's why some of those surprised me when he was allowed 18 to go, Well, it ain't this, it must be this. 19 MR. PHIL CAMPBELL: And the risk of 20 treating homicide as a default position; as something 21 that you're going to infer if you can't disprove it, is 22 that a jury, which is supposed to presume it's not a 23 homicide until it's shown, may rely on the pathologist 24 who, in his own mind, says it's a homicide because it 25 wasn't shown not to be.
371 Do you -- do you see the danger when the 2 scientific presumption is different from the legal 3 presumption? 4 DR. JAMES CAIRNS: I very much see the 5 danger. And, first of all, the pathologist should not 6 say, Well, if it ain't (a), it must be (b). And I 7 thought the judicial system should be saying, Hold on 8 about it, you know, this -- this is -- this is -- your 9 evidence is going too far and, if allowed in at all, that 10 the judge has to instruct the jury that, Listen, you 11 can't go from (a) to (b) unless you've got evidence. 12 MR. PHIL CAMPBELL: Is it your evidence 13 that you were unaware of Dr. Smith reasoning along those 14 lines and communicating that line of reasoning to courts 15 in -- in his heyday? 16 DR. JAMES CAIRNS: In one (1) -- one (1) 17 of our -- in retrospect, one (1) of our reasons for -- 18 for Dr. Smith not -- is that we -- we were not reading 19 transcripts. It was not -- and I think that's already 20 said -- it was not the -- the common for transcripts of 21 trials to be -- to be examined after someone had 22 testified. 23 MR. PHIL CAMPBELL: And nothing in the 24 events that Ms. Rothstein took you through on Monday and 25 Tuesday ever prompted that read-through. I think we've
381 acknowledged that. 2 DR. JAMES CAIRNS: I think that's 3 correct, but I'll stand to be corrected. 4 MR. PHIL CAMPBELL: I just want to -- 5 DR. JAMES CAIRNS: I don't want to make 6 an assumption I can't prove. 7 MR. PHIL CAMPBELL: I just want to touch 8 on a little bit of investigative psychology. 9 COMMISSIONER STEPHEN GOUDGE: Before you 10 do that, Mr. Campbell, let me ask you this, Dr. Cairns. 11 Looking forward, would it be wise for the 12 coroner system to have some way of, in some way, 13 reviewing the transcript of evidence given by 14 pathologists? 15 DR. JAMES CAIRNS: It's an excellent 16 question, Commissioner. We dealt with it slightly 17 yesterday. My feeling is that the first step of that 18 should be probably when the cor -- pathologist does his 19 autopsy report, that he has to extend that autopsy report 20 where he says, Cause of death -- 21 COMMISSIONER STEPHEN GOUDGE: Right. We 22 talked about the report, itself, yesterday. 23 DR. JAMES CAIRNS: -- and here -- here 24 are my reasons. So that -- that would be a very good 25 step to reduce the possibility. But, yes, for the
391 foreseeable future, given what has happened, it would be 2 my view that we also should be reading the transcripts. 3 I don't know of any other jurisdiction 4 that's doing that, but that doesn't say it shouldn't be 5 done. Because it's clear to me, having read all of these 6 transcripts, that had they been read in the past, it 7 would have been of great assistance. 8 COMMISSIONER STEPHEN GOUDGE: In coming 9 to an earlier conclusion -- 10 DR. JAMES CAIRNS: Yes. 11 COMMISSIONER STEPHEN GOUDGE: -- about 12 Dr. Smith. 13 DR. JAMES CAIRNS: Yes. Now, you also 14 know, Commissioner, that the decision when Dr. McLellan 15 called for this review, there was great debate at the 16 Scientific Advisory Committee whether there would -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. JAMES CAIRNS: -- be transcripts or 19 not and many people were opposed to it. And I think the 20 decision that they included the transcripts was a superb 21 decision. Now, I know the difficulty it took to get 22 them, but let's say -- those -- those are other things in 23 principle. 24 Yes, I think it is tremendously valuable. 25 COMMISSIONER STEPHEN GOUDGE: Thank you.
401 Thanks, Mr. Campbell. 2 3 CONTINUED BY MR. PHIL CAMPBELL: 4 MR. PHIL CAMPBELL: Back quickly to the 5 Montans' case. You -- you described how the radiologist 6 thought the pathologist had seen a broken neck and the 7 pathologist thought the radiologist had, and that would 8 have contributed much toward the conclusion that it was a 9 death by car accident? 10 DR. JAMES CAIRNS: Correct. 11 MR. PHIL CAMPBELL: And, in effect, each 12 sort of reinforced the views of the others and -- 13 DR. JAMES CAIRNS: The doubts of both 14 ended up as a double reinforcement. 15 MR. PHIL CAMPBELL: Each eradicated the 16 doubts of the other? 17 DR. JAMES CAIRNS: Correct. 18 MR. PHIL CAMPBELL: And the same thing 19 may possibly have happened as you reviewed Sharon's case, 20 that -- that injuries which were equivocal, let us say, 21 on first inspection came to -- came to be viewed as 22 homicidal stab marks because people submerged their 23 doubts to the strongest opinion or the most forceful 24 opinion? 25 DR. JAMES CAIRNS: The only difference in
411 that that everybody was in the same room at the same 2 time, so one (1) was hearing exactly what the other said 3 as opposed to thinking of what they said. But I -- I 4 think it is fair to say that the people in that room -- 5 Dr. Smith had done the autopsy, but I mentioned Mr. Barry 6 Blenkinsop, who had been there for years and years, his - 7 - his opinion with regard to -- to animal injuries was -- 8 was held in high esteem, and the forensic odontologist 9 was held in high esteem. 10 So I would agree with you that those two 11 (2) opinions would have been the stronger opinions that 12 would then be in terms of Dr. Chiasson, him going along 13 with it, I have to admit, I'm not a -- an expert at any 14 of those, and my role there probably would -- although I 15 agreed with it, would probably be more -- if I saw -- 16 heard two (2) people say yes and two (2) people say no 17 then I think in my responsibilities I would say, hold on, 18 hold on, we -- we've got a real conundrum here. 19 But the only one (1) who did consider it 20 was -- was Dr. Queen (phonetic). 21 MR. PHIL CAMPBELL: And I'm going to get 22 back to that in a -- in a minute, if I may, but I want to 23 go away from the specifics to see if I can just, with 24 your help, identify a problem. And I don't know if it 25 lends itself to systemic solutions, yet I've cast it as a
421 psychological problem. 2 But you've sat in on a lot of 3 investigative case conferences? 4 DR. JAMES CAIRNS: I did. 5 MR. PHIL CAMPBELL: And I'm going to 6 suggest that if you think about the dynamic of those 7 conferences, it can very often be that the strongest 8 opinion pulls the others along behind, particularly if 9 people are disposed to a conclusion, but uncertain about 10 it, the certainty of somebody can fortify the tentative 11 opinion of others. 12 Is that -- is that fair to say? 13 DR. JAMES CAIRNS: That's certainly the 14 power of persuasion. I think if I sat in on a -- on a 15 case conference with Dr. Pollanen and he was strong on 16 it, I think his opinion would certainly be -- be 17 influencing everybody else in the room. 18 MR. PHIL CAMPBELL: And if we are to look 19 fairly at your history with Dr. Smith, the same thing may 20 have happened to you over the course of years? 21 DR. JAMES CAIRNS: I accept that 22 entirely. 23 MR. PHIL CAMPBELL: And can it then be 24 the result that descending opinions or equivocal opinions 25 get lost because the strongest opinion carries the day
431 and a kind of consensus builds around it? 2 DR. JAMES CAIRNS: It certainly has 3 happened in the past. Obviously, since -- certainly 4 since the year 2000, the -- these -- these meetings are 5 now held in a much more multidisciplined atmosphere. And 6 there is a great caution that if one (1) person has a 7 strong opinion that it is to be very carefully -- unless 8 the others have an equally strong opinion that we will 9 attack that opinion and not take that opinion. 10 And I can think of many cases where 11 somebody has a strong opinion and everybody else just 12 says, no. The Mark McAvoy case -- and I don't need to go 13 into it, but the police officers there were -- were not 14 convinced that this was a suicide, but the pathologist 15 said it was a contact wound, it was a suicide. The 16 firearms expert said it's a suicide. And the police at 17 that time, even though common sense, and this was common 18 sense, told you it wasn't, they bowed, They're the 19 experts, we're not going to go there. 20 And I presided over the inquest because 21 there -- there wasn't in fact a criminal trial. And they 22 agreed that in retrospect, if they were their common 23 sense, even though they're not an expert, don't accept 24 the opinion. 25 They -- they should have been going up the
441 ladder to someone else and that it was explained that in 2 these multi-discipline meetings that you may not be an 3 expert in that particular field, but because you've been 4 around that for some time, I would not consider myself a 5 firearms expert, but when I looked at the wound in his 6 neck it was absolutely clear to me that was not a contact 7 wound. 8 Now, I wouldn't say that that's going to 9 be my definitive opinion, but I'm certainly going to make 10 sure that others are brought into it. So we have been 11 trying to stress that, be very careful accepting one (1) 12 person's opinion, unless you fully agree with it. 13 MR. PHIL CAMPBELL: So whatever the 14 psychological dynamics may be, a systemic response to 15 them is to make sure that minority, or dissenting, or 16 equivocal opinions are voiced, and also that there is a 17 way for them to be preserved and reviewed later. 18 DR. JAMES CAIRNS: Correct. 19 MR. PHIL CAMPBELL: All right. Now, 20 you've told us about Dr. Queen's opinion in an early case 21 conference on Sharon's case that they -- these were 22 perhaps not by -- not stab wounds, but bite marks. 23 DR. JAMES CAIRNS: Correct. 24 MR. PHIL CAMPBELL: Do you know whether 25 that opinion which you now recall, but I don't see it
451 otherwise memorialised in our database, do you -- do you 2 know if that opinion was ever reduced to writing? 3 DR. JAMES CAIRNS: No, the -- this was a 4 case conference; there was nothing reduced to writing. 5 When I was being interviewed in preparation for this, in 6 terms of that case, my recollection of the meeting was as 7 I've told you and I indicated to the best of my knowledge 8 that's what Dr. Queen had indicated and I don't know if 9 it's okay, but I am aware that Dr. Queen has been 10 interviewed and that that's -- that's what he's saying, 11 that he -- he thought they may be; however, he did not 12 hold that in a strong, strong way and didn't jump up and 13 down and say, Hey, stop, but he had that -- that opinion. 14 And to be fair, he also indicated he was 15 early on in his career and he left it at that. 16 MR. PHIL CAMPBELL: And it was -- this 17 was also early days in -- in the investigation of 18 Sharon's case, shortly after the autopsy. 19 DR. JAMES CAIRNS: It -- yes, it 20 certainly pro -- it probably was within two (2) to three 21 (3) weeks of the autopsy. 22 MR. PHIL CAMPBELL: And can you -- can 23 you now see the value to counsel trying to defend the 24 accused in that case, the value to that lawyer of knowing 25 that this opinion, however tentative and from however a
461 junior member of the case conference, had been expressed 2 at that stage and seeing whether it either gave him 3 ideas, or confidence, or the incentive to go interview 4 Dr. Queen, do you -- do you see that? 5 DR. JAMES CAIRNS: Yes, I do. 6 MR. PHIL CAMPBELL: So that might be an 7 illustration of the value of finding a means to preserve 8 opinions that are registered early on in the 9 investigative process and that may not otherwise get 10 captured. 11 DR. JAMES CAIRNS: Absolutely. 12 MR. PHIL CAMPBELL: All right. I -- I -- 13 I'm going to go right to the end of my next set of 14 questions before I give you the big lead up to it. I'm 15 going to suggest to you that your office can and should 16 support, if not initiate, a further inquiry into all 17 criminally-suspicious paediatric cases in Ontario, at 18 least since the tenure of Dr. Smith began. 19 Do you accept or reject that as a sound 20 way to restore confidence in the paediatric death 21 investigations? 22 DR. JAMES CAIRNS: This is with regard to 23 not only autopsies done by Dr. Smith, but autopsies done 24 by any other pathologist who was doing a paediatric case? 25 MR. PHIL CAMPBELL: That's correct.
471 DR. JAMES CAIRNS: From what I know, I'm 2 not aware of any other pathologist coming under the same 3 criticism. Whether that should or should not be done, 4 first of all, it would -- it would not be fair for me to 5 give a definitive answer, since I am retiring in January 6 and I don't want, therefore, to be speaking for the 7 future. 8 But I'm going to put it, unfortunately, as 9 I did to the Commissioner yesterday. If the Commissioner 10 feels that it takes that to restore confidence, then I 11 would certainly accept his opinion. 12 MR. PHIL CAMPBELL: Well, we're in a bit 13 of a -- of a tough spot in -- in regard to your future in 14 the office. In this sense, that Dr. McLellan has just 15 left, and Dr. Porter is not on the witness list, and -- 16 and Dr. Young who also will, no doubt, have a perspective 17 on -- on the capacities and obligations of the offices, 18 is also already retired. 19 So we have here, if only for a short time, 20 somebody in a senior position in the office at present. 21 And that's why I'm -- I want you to address yourself to 22 that question. 23 DR. JAMES CAIRNS: Okay. There was 24 absolute value in having the external review of Dr. 25 Smith's cases -- without a shadow of a doubt. It was
481 time consuming. It was very expensive. Not that time 2 and expense should be the ultimate features, but living 3 in a practical world, to say, Can we look at all 4 children's autopsies from the time -- from 1991, it can 5 be done -- 6 MR. PHIL CAMPBELL: In criminally 7 suspicious cases. 8 DR. THOMAS CAIRNS: Are we talking about 9 criminally suspicious cases with a conviction or without 10 a conviction? 'Cause I think, you know, the reason is, 11 one may have to say, Well you know, I want everything 12 done. I want the Cadillac -- I want everything. 13 Or do we say, Well the ones that are the 14 most critical, or where someone may have lost their 15 liberty. So that -- that would be a matter of numbers. 16 And then one would have to, in addition 17 then, be given sufficient funding, because I think this - 18 - this analysis would like -- would once again have to be 19 done from -- by pathologists who were not connected with 20 the Office of the Chief Coroner, and most likely, would 21 not be pathologists from Canada. 22 So we're once again back to having other 23 pathologists from the United States or vice versa. And I 24 am aware -- and this is just some of the bit -- I am 25 aware how difficult it was to get these five (5)
491 individuals. 2 And how difficult it was to persuade these 3 five (5) individuals, after they'd done their initial, to 4 come back. They had to nearly be dragged screaming back, 5 because the very people we're going to get to do this, 6 aren't sitting around sort of scratching their heads 7 saying, I'm bored today, what shall I do? 8 They're all, in their own light, very 9 busy. And I think if you're going to do it, it's 10 important to get those people. It's not important to get 11 a retired seventy-five (75) year old pathologist who's 12 doing nothing, and will say, Oh yeah, I'll do it. 13 I think it should be done by the people 14 who are at the top of their field, academically and right 15 up to scratch. So if you can wave a magic wand and say 16 all of the -- the practical problems are solved, 17 absolutely. 18 MR. PHIL CAMPBELL: Let's make the case 19 for it. Dr. Smith was, I think we can agree, an exalted 20 figure. In fact we've already called him iconic so we 21 can get past that. 22 DR. JAMES CAIRNS: Yes, absolutely. 23 MR. PHIL CAMPBELL: He was a very 24 convincing, highly plausible speaker, verbally, correct? 25 DR. JAMES CAIRNS: Correct.
501 MR. PHIL CAMPBELL: His -- it would be 2 fair to say that his verbal fluency far outstripped his 3 skills as a scientist? 4 DR. JAMES CAIRNS: In retrospect, I think 5 that's a fair comment. 6 MR. PHIL CAMPBELL: And he was widely 7 consulted within the -- within the paediatric pathology 8 community, if I may use that over work -- over-worked 9 word? 10 DR. JAMES CAIRNS: Yes. 11 MR. PHIL CAMPBELL: During his tenure? 12 DR. JAMES CAIRNS: Both -- both in 13 Ontario and across the country. 14 MR. PHIL CAMPBELL: He -- you described 15 him as the "go to" person -- 16 DR. JAMES CAIRNS: Correct. 17 MR. PHIL CAMPBELL: -- on paediatric 18 pathology issues? 19 DR. JAMES CAIRNS: I did. 20 MR. PHIL CAMPBELL: If we can pull up 21 PFP136211, which you'll have in Volume II, Tab 14. I 22 noted in passing, the newsletter from the South Georgian 23 Bay Regional Supervising Coroner who said at page 2 of 24 the document -- next page, Mr. Registrar. 25 I'm sorry, it may be page 3 of that
511 document. 2 COMMISSIONER STEPHEN GOUDGE: Yes, I 3 think it's page 3. 4 DR. JAMES CAIRNS: Which tab please? 5 6 CONTINUED BY MR. PHIL CAMPBELL: 7 MR. PHIL CAMPBELL: Tab 14. 8 DR. JAMES CAIRNS: I've got it. 9 MR. PHIL CAMPBELL: In the second full 10 paragraph on the left: 11 "There are also a number of 12 pathologists who call the Hospital for 13 Sick Children, most especially, Dr. 14 Charles Smith, for consultation during 15 or after the post-mortem of a child. 16 Dr. Smith often agrees to a request for 17 a consult or invites the pathologist to 18 send the slides tissues to him for a 19 second opinion. Unfortunately, Dr. 20 Smith has not been able to keep up with 21 these requests, and the case cannot -- 22 case cannot be closed because he has 23 not completed the consult". 24 She was addressing the -- the delays with 25 regard to Dr. Smith. But an interesting feature about
521 the passage is how prominently she regards him as a 2 "consultant"; as a "go-to" person. 3 DR. JAMES CAIRNS: Correct. 4 MR. PHIL CAMPBELL: And she actually 5 describes, as I understand her, pathologists conducting 6 autopsies who will call him in the course of an autopsy. 7 DR. JAMES CAIRNS: Correct. 8 MR. PHIL CAMPBELL: And is it fair to say 9 that if you've got a remains on a table which you're 10 autopsying and you call Dr. Smith and describe what you 11 are seeing, it may very -- it's very likely that -- that 12 the opinion of Dr. Smith will feature prominently in the 13 ultimate thinking and conclusion of the pathologist, if 14 he or she has gone to that extent? 15 DR. JAMES CAIRNS: Given that Dr. Smith 16 is considered to be the -- the guru, I can put a similar 17 situation. If I'm an Emerg physician and I've got 18 somebody with a condition and I phone up the Tertiary 19 Care Hospital in Toronto and they say, Do this and do 20 that, I'm going to do it because whoa and betide if I 21 don't do it. So you're absolutely right. 22 MR. PHIL CAMPBELL: May it also be the 23 case that the documentation of the autopsy does not 24 record the consultation .. the ad hoc or spontaneous 25 consultation with Dr. Smith?
531 DR. JAMES CAIRNS: I am not aware that 2 that very often was the case. 3 MR. PHIL CAMPBELL: And, apart from 4 informal case conferences, he was, through the 90s, 5 lecturing at University of Toronto? 6 DR. JAMES CAIRNS: Correct. 7 MR. PHIL CAMPBELL: And lecturing at 8 symposia of pathologists? 9 DR. JAMES CAIRNS: Correct. 10 MR. PHIL CAMPBELL: And I'm going to 11 suggest to you that it is, taking all that together, 12 obvious that Dr. Smith must have left his mark on the 13 paediatric pathology work of other pathologists in this 14 Province as well? 15 DR. JAMES CAIRNS: At that time. I would 16 think right now, he's probably left a very much different 17 mark. 18 MR. PHIL CAMPBELL: And it might be 19 useful contrasting the mark that was left then, which is 20 recorded in buried files in the Chief Coroner's Office, 21 and the mark that we now see today. 22 Fair enough? 23 DR. JAMES CAIRNS: Absolutely. 24 MR. PHIL CAMPBELL: On to another point, 25 Dr. Cairns. I noted that --
541 COMMISSIONER STEPHEN GOUDGE: Before you 2 do, Mr. Campbell, Dr. Cairns, could you give me any sense 3 -- let's take the two (2) categories you recited -- of 4 the number of cases there would have been -- paediatric 5 forensic cases -- criminally suspicious from 1991 to 2001 6 other than those in which Dr. Smith did the post-mortem. 7 And then the subcategory; those with convictions? 8 What kind of numbers are we talking about, 9 or do you have any idea? 10 DR. JAMES CAIRNS: Well, the -- the 11 expert panel reviewed fifty (50) cases, and I think those 12 were the fifty (50) cases that he did between 1991 -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. JAMES CAIRNS: -- and 2001 -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. JAMES CAIRNS: -- where it was 17 criminally suspicious or homicide. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. JAMES CAIRNS: And I think it is 20 probably -- the best estimate I would have is that he -- 21 he was doing probably about 50 percent of the homicides 22 in the Province of Ontario. 23 COMMISSIONER STEPHEN GOUDGE: Okay, so, a 24 rough -- 25 DR. JAMES CAIRNS: Although -- yes.
551 COMMISSIONER STEPHEN GOUDGE: -- is that 2 there would be another fifty (50) cases done by others -- 3 DR. JAMES CAIRNS: I would say so. 4 COMMISSIONER STEPHEN GOUDGE: -- 5 criminally suspicious pediatrics. 6 DR. JAMES CAIRNS: Although that -- that 7 is a figure that we could accurately -- in fact, 8 tomorrow, we -- we could give you accurately the number 9 of other -- where they -- where they -- what we would do 10 is we'd look up all the other pathologists and where they 11 -- where it was clicked as homicide. Homicide may not 12 mean a conviction, but we should be able to give you, 13 Commissioner, a pretty good indication, if it was decided 14 to look at all those, what the numbers would be. 15 COMMISSIONER STEPHEN GOUDGE: You know, 16 obviously one (1) of the considerations is the practical 17 consideration that you've spoken to and, frankly, others 18 spoke to last week. 19 But it would help me, Mr. Gover, if, 20 without too much difficulty, we could come up with those 21 two (2) numbers; that is, criminally suspicious and those 22 resulting in convictions. 23 MR. BRIAN GOVER: We'll do that, sir. 24 Thank you. Sorry, Mr. Campbell. 25
561 CONTINUED BY MR. PHIL CAMPBELL: 2 MR. PHIL CAMPBELL: Dr. Cairns, I noted 3 in your testimony in-chief that there was a bit of a 4 theme running through it that where you were concerned -- 5 you and your office were concerned that justice might not 6 have been served in a particular case -- you would make 7 efforts to draw that to the attention of authorities in 8 the criminal justice system, is that fair to say? 9 DR. JAMES CAIRNS: That's correct. 10 MR. PHIL CAMPBELL: And to run through it 11 a bit because it works from both sides, that is the -- 12 the concern about injustice -- you urged the police to 13 reopen the investigation into Paolo? 14 DR. JAMES CAIRNS: Correct. 15 MR. PHIL CAMPBELL: We seen this at 16 PFP002565; that is in the bottom paragraph -- the memo of 17 your conversation with -- your meeting first with Dr. 18 Babyn and then your subsequent contact with Detective 19 Bradley (phonetic) of the Durham Regional Police 20 indicating to him, quote: 21 "That I had considerable concerns 22 regarding the circumstances surrounding 23 this baby's death and requested that 24 they carry out further investigation," 25 Correct?
571 DR. JAMES CAIRNS: Correct. 2 MR. PHIL CAMPBELL: And you were urging 3 the police to carry out a homicide investigation? 4 DR. JAMES CAIRNS: I was argu -- or I was 5 urging them to carry out a criminal investigation, 6 correct. 7 MR. PHIL CAMPBELL: Right. When, at that 8 point, the matter was dormant? 9 DR. JAMES CAIRNS: At the time of that, 10 that case had been closed. The cause of death was SIDS 11 and the by what means was natural. 12 MR. PHIL CAMPBELL: And you wanted to see 13 it opened as a homicide investigation with the view to 14 whether or not criminal charges should be laid? 15 DR. JAMES CAIRNS: As a result of the 16 information that I had obtained, and as a result of me 17 reviewing the first investigation, including autopsy and 18 history, and with the new information I had available to 19 me, I felt that this had to be reopened as a suspicious 20 case. 21 And that it should be reopened -- if it 22 had been reopened as a suspicious case, it should be the 23 homicide bureau that were doing it because they are the 24 people who are experts in that field. 25 MR. PHIL CAMPBELL: And in the Nicholas
581 case, you and Dr. Smith travelled together to Sudbury to 2 meet with local officials to urge a reopened 3 investigation, correct? 4 DR. JAMES CAIRNS: That's correct. 5 MR. PHIL CAMPBELL: And you went 6 specifically for that purpose. And two (2) busy people 7 took time out of their day to go off and get face time, 8 as it were, with local officials? 9 DR. JAMES CAIRNS: Well, it was a 10 significant issue, and I felt significant issues are best 11 dealt with, if possible, face to face. 12 MR. PHIL CAMPBELL: And you were urging 13 again the conduct of a criminal investigation? 14 DR. JAMES CAIRNS: I was urging, yes, 15 that this body be exhumed because at that time, although 16 it was not confirmed, Dr. Babyn, in particular, was 17 concerned about a fractured mandible. And a fractured 18 mandible would certainly be saying, if -- if confirmed, 19 that we're looking at a criminally suspicious case. 20 MR. PHIL CAMPBELL: And to take two (2) 21 cases from the other direction, when you got information, 22 in your -- in your continuing medical education, that 23 Sharon's death may not have been due to stab wounds, you 24 took an initiative with that, pressing the Attorney 25 General for a -- an exhumation, correct?
591 DR. JAMES CAIRNS: That's correct. 2 MR. PHIL CAMPBELL: And you, in effect, 3 intervened with your concerns in the midst of an ongoing 4 criminal prosecution? 5 DR. JAMES CAIRNS: Correct. 6 MR. PHIL CAMPBELL: And you were 7 concerned about a possible injustice there, a wrongful 8 conviction, potentially? 9 DR. JAMES CAIRNS: Absolutely. 10 MR. PHIL CAMPBELL: Mm-hm. And you told 11 us that in Valin's case you went right over to see Ken 12 Campbell, Director of the Crown Law Office Criminal -- at 13 least now, I'm not sure if he was then, but certainly a 14 senior figure there -- to urge action on him, correct? 15 DR. JAMES CAIRNS: I went over to supply 16 him with Dr. Pollanen's report -- to translate it for him 17 if he needed it. It was a significant report. And at 18 that time, Mr. Campbell said, Well, who is this Dr. 19 Pollanen? I mean, he's just a young whippersnapper -- 20 just out of school type of thing. 21 And I think that's -- and I said, listen, 22 Dr. Pollanen is a very respected pathologist, so do not 23 belittle this report because he may be younger than many 24 of the rest of us. So it was two (2) things: to indicate 25 to them here is a report and indicate to him that as far
601 as our office was concerned, this was a very serious 2 report that we considered to be entirely accurate, to 3 ensure that he would not be mislead as to the 4 significance of what we were suggesting he should proceed 5 with. 6 MR. PHIL CAMPBELL: Because in your view 7 it required action. 8 DR. JAMES CAIRNS: In my review, it 9 required action and we also wanted to ensure that as soon 10 as possible that that report wa -- wa -- was given to the 11 legal advisors who were acting for Valin Johnson. 12 MR. PHIL CAMPBELL: And in the result, 13 joint cooperative action emerged from that initiative, is 14 that fair to say? 15 DR. JAMES CAIRNS: That is very fair to 16 say. 17 MR. PHIL CAMPBELL: And a mechanism was 18 worked out by which Valin's case was brought back before 19 the Courts with the eventual acquittal of -- of William 20 Mullins-Johnson. 21 DR. JAMES CAIRNS: I think not only was 22 it brought back before the Courts, but it was brought 23 back with, shall we say, the prosecution and the defence 24 being entirely on the same side. 25 MR. PHIL CAMPBELL: All right. And it
611 originated with work done in or under the auspices of the 2 Coroner's Office. 3 DR. JAMES CAIRNS: That's correct. 4 MR. PHIL CAMPBELL: And when we are 5 dealing with these pediatric cases, Dr. Cairns, am I 6 right in saying that they have this -- if not unique -- 7 at least, distinctive feature that very often the most 8 fundamental aspect of the case -- that is that existence 9 of a homicide -- the existence of a crime -- depends upon 10 pathology? 11 DR. JAMES CAIRNS: Very much. Many of 12 the -- in fact, when I lecture on -- on the case I show a 13 -- an obvious homicide; a biker type homicide. I mean, 14 you don't have to be a Sherlock Holmes or anything else 15 to say we've got a homicide here. 16 And then I will show a tranquil scene of - 17 - of a baby in a crib that for all intensive purposes is 18 a SIDS death. And I'm saying the police going there -- 19 they're not going to see bruises, stab wounds, et cetera 20 -- so critical, critical to that decision is a 21 appropriate forensic autopsy where, going into it, there 22 may be nothing, but very often it is that autopsy will be 23 pivotal as to what the police will subsequently do. 24 MR. PHIL CAMPBELL: And very often -- 25 COMMISSIONER STEPHEN GOUDGE: Mr.
621 Campbell, I'm sorry to interrupt you, but I'd like to 2 take a five (5) minute break, if I might. This isn't our 3 morning break, but we'll rise now for five (5) minutes. 4 Sorry, Doctor. 5 6 --- Upon recessing at 10:40 a.m. 7 --- Upon commencing at 10:45 a.m. 8 9 CONTINUED BY MR. PHIL CAMPBELL: 10 MR. PHIL CAMPBELL: Just before the 11 break, Dr. Cairns, was the possibility that if the 12 pathology in a pediatric case is wrong, then the Justice 13 System has been mislead about the most fundamental 14 element of a prosecution, whether there's been a crime or 15 not, correct? 16 DR. JAMES CAIRNS: I would accept that. 17 MR. PHIL CAMPBELL: And that, where it 18 happens, I suggest has to be taken very seriously by your 19 office because it happens under the auspices of the Chief 20 Coroner's Office where -- where a -- an autopsy is 21 ordered and conducted. 22 DR. JAMES CAIRNS: Yes, I would accept 23 that, also. 24 MR. PHIL CAMPBELL: Now, I want to -- I 25 want to just ask you this before I go on and -- and
631 there's no implication of impropriety here because there 2 is no order in this case excluding witnesses and there 3 are ways to follow what's going on these proceedings 4 through the media and the internet and personal 5 conversation. 6 Are you aware of any of the themes that 7 were taken up with Dr. McLellan and Dr. Pollanen two (2) 8 weeks ago when they testified, including about systemic 9 issues? 10 DR. JAMES CAIRNS: I am aware of some of 11 them; I can't say I was aware of all of them because I 12 was -- but I could -- watching, but I was also doing my 13 own preparation for appearing on the witness stand. 14 MR. PHIL CAMPBELL: A theme Mr. Lockyer 15 explored with Drs. McLellan and Pollanen was -- was this, 16 you now have -- we all have -- a lot of basis to believe 17 that in many cases where charges were laid and 18 convictions obtained, the evidence proving homicide was 19 scientifically incorrect or overstated, that's the 20 present state of affairs, is that right? 21 DR. JAMES CAIRNS: I would accept that. 22 MR. PHIL CAMPBELL: As your office 23 pressed the police and the Crown -- where it appeared 24 that an innocent cause of death had been given by mistake 25 in some cases, and an inculpatory cause of death given in
641 other cases, by mistake or in error -- as you pressed the 2 police and Crown in those cases, should your office now 3 be prepared to press the police and the Crown to take 4 active measures to re-open, quickly and efficiently, 5 cases where there is serious doubt -- identified doubt 6 about the cause of death on which homicide convictions 7 have been based? 8 DR. JAMES CAIRNS: I think to do that 9 would require expert -- I'm sorry, external expert review 10 of those cases. 11 MR. PHIL CAMPBELL: All right, talking -- 12 I'm sorry, I'm talking now about the cases that we've 13 got. The twenty (20) let us say, that we have of -- that 14 form the sub-straight of this Inquiry. 15 And I suppose I speak particularly about 16 the interests of -- of seven (7) or so of our client -- 17 of Mr. Lockyer's clients, and mine. 18 DR. JAMES CAIRNS: I've heard the 19 question; I've heard the answers that were given, and I 20 think, and I can only speak for myself 'cause -- okay, 21 I'll speak for the Coroner's Office, at least for the 22 next month. 23 I mean I may get fired for saying that you 24 can't get money unl -- until hell freezes over, but I'm 25 still today the Deputy Chief Coroner, and I can see the
651 value of that. 2 However, I do agree that I don't think it 3 should be our office that's taking the lead. I think we 4 should be very willing to cooperate, and I think it 5 should be some form and some judicial form that would 6 take the lead. 7 But once again, as far as I'm concerned, 8 the Commissioner's going to hear all of this, and if 9 that's his recommendation, then I think that's -- we'll 10 do whatever he feels is the most appropriate way to deal 11 with this. 12 MR. PHIL CAMPBELL: You have, and that 13 was the purpose of my questions before the -- the short 14 break, you have taken the lead in the past when you were 15 unsatisfied with the way the Justice System, broadly 16 defined, is dealing with cases where the autopsy was 17 conducted under your auspices? 18 DR. JAMES CAIRNS: I -- I will agree with 19 you that in -- in a number of these cases I -- I took the 20 lead. It's very easy for me to sit here and say, Oh 21 yeah, when as of the 11th of January it won't be my 22 problem. 23 So it's -- I could give you a personal 24 view, but I don't want to -- it's not fair for me to give 25 you an institutional view since it's going to be after --
661 and others may have a different perspective. 2 So as long at it isn't that this is -- 3 this is the official position of the Office of the Chief 4 Coroner, so I don't think I can speak for the official 5 position of the Office of the Chief Coroner about how 6 these issues should be dealt with next year, since -- 7 since I won't be there. 8 But I think the Commissioner will be in a 9 very good position, and in that position in a short time, 10 this report is due out in April. I don't see anything 11 happening between now and April, and I think it would be 12 -- it would be prudent to listen to what the Commissioner 13 has to say on this point. 14 MR. PHIL CAMPBELL: Is there any 15 impediment -- legal impediment, I'd like to begin with, 16 to the Chief Coroner or a Deputy Chief Coroner getting in 17 touch with senior officials in the Ministry of the 18 Attorney General, and saying, We now believe that people 19 messed up autopsies on our Watch; that the very 20 foundation of some criminal convictions is uncertain at 21 best, and we are not happy that these convictions remain 22 unaddressed, and we urge you Minister, or Deputy 23 Minister, or Director, to do something about it. 24 Is there any impediment to that kind of 25 call going out?
671 DR. JAMES CAIRNS: There would be an 2 impediment right now, in that before one could do that, 3 one would have to have all the cases pulled. And one 4 would also in my opinion have to have the transcripts 5 from all the trials as well. 6 So that -- it would be a time consuming -- 7 I think by that time, we'll be up to where the 8 Commissioner is going to give his report. 9 MR. PHIL CAMPBELL: I see. Doctor, in 10 the cases that I'm talking about, the files are nothing 11 but pulled. 12 DR. JAMES CAIRNS: Oh, I'm -- I 13 apologize, I apologize. 14 MR. PHIL CAMPBELL: I'm not talking 15 about -- 16 DR. JAMES CAIRNS: No, I -- 17 MR. PHIL CAMPBELL: -- a wide ranging 18 historical review. 19 DR. JAMES CAIRNS: -- I apologized. 20 We're talking -- 21 MR. PHIL CAMPBELL: I'm talking about 22 lighting a fire. 23 DR. JAMES CAIRNS: -- with -- within the 24 twenty (20) cases that have been reviewed so far, where 25 the experts have felt that a conviction was based on
681 inaccurate or in fact, wrong scientific evidence, what 2 should be done with those? 3 MR. PHIL CAMPBELL: And should your 4 office take an initiative to bring them back in front of 5 the justice system if the Crown is showing no initiative 6 in that regard? 7 DR. JAMES CAIRNS: I would personally 8 have no problem in meeting with senior officials from the 9 attorney general's office to discuss this further. 10 MR. PHIL CAMPBELL: Would you have a 11 problem with your chief coroner or your office initiating 12 and requesting that meeting? I am talking about whether 13 your office may be part of a mechanism for moving from a 14 present state of stasis to action? 15 DR. JAMES CAIRNS: I feel our office 16 should support, in the best way it can, any of those 17 issues. Whether it takes the lead role or whether 18 someone else's takes the lead role is -- is open for 19 debate. 20 But I persona -- I can only say, if I -- 21 if I was sitting here as the chief coroner today, I would 22 indicate to you that I would be willing to initiate 23 meetings at this time with senior officials in the 24 attorney general's office regarding the -- those of the 25 twenty (20) cases that has been discussed here where we
691 now know on the expert's evidence that there's grave 2 concern about the validity of the conviction. 3 MR. PHIL CAMPBELL: Has the -- the chief 4 coroner's office is ultimately responsible for concluding 5 death investigations with a coroner's investigation 6 statement, that among other things, records a cause of 7 death? 8 DR. JAMES CAIRNS: That's correct. 9 MR. PHIL CAMPBELL: Those statements, 10 apart from whatever happens very visibly in the criminal 11 justice system, exist for each of the cases where there 12 has been a conviction, correct? 13 DR. JAMES CAIRNS: Correct. 14 MR. PHIL CAMPBELL: Do you know, as you 15 sit here today, whether in light of the findings of the 16 chief coroner's review, the -- the background to this 17 whole inquiry, coroner's investigation statements have 18 been updated and modified? 19 DR. JAMES CAIRNS: In those cases where a 20 conviction has been overturned, like the Valin Johnson 21 case, those will be modified. 22 MR. PHIL CAMPBELL: Is the coroner's 23 investigation statement supposed to follow the outcome of 24 the justice system or is it supposed to be an independent 25 investigation reflecting knowledge as we know it?
701 Should your -- should the work of your 2 office, in other words, be dependent on the willingness 3 of the justice system to reconsider and perhaps alter its 4 findings or should it be separate and independent? 5 DR. JAMES CAIRNS: The coroner's 6 investigative statement in a case -- let's say they say 7 the cause of death is blunt head injury, that blunt head 8 injury may be from a fall, it may be of a non-accidental 9 nature. If it's felt to be a non-accidental nature then 10 the -- the report will say head -- blunt head injury and 11 the by what means is homicide. 12 In the coroner's definition of homicide -- 13 and we do this is in inquests too -- it's the killing of 14 one (1) person by another. It is not culpable -- or 15 nonculpable homicide, so we don't get into the -- the 16 issues of culpability. 17 However, I can only tell you that -- and 18 in -- in if I'm aware of a case where we've classified it 19 as homicide and I'm satisfied that the conviction -- that 20 the person was found not guilty, if I feel that -- that 21 not guilty issue was be -- because the scientific 22 evidence was flawed not because well, a -- a jury could 23 have taken it either way -- if I feel the scientific 24 evidence was flawed then I would say we should -- we 25 should reclassify that in -- in those terms.
711 There are, obviously, many homicides where 2 someone is found guilty, where the guilt finding has 3 nothing to do with the actual pathology. 4 MR. PHIL CAMPBELL: But in many, 5 especially paediatric homicide convictions that critical 6 question -- and we've covered this -- is whether there 7 was a homicide at all because if there was, especially if 8 it's within a narrow timeframe, the perpetrator of the 9 homicide becomes obvious given the limited number of 10 people with access to small babies, correct? 11 DR. THOMAS CAIRNS: Correct. We would -- 12 but if it's just exclusive opportunity then the actual 13 findings in that autopsy may be clearly that the child 14 has died as a result of non-accidental injuries, but the 15 criminal case may be, Was there exclusive opportunity to 16 that; our files will have it as cause of death, non- 17 accidental injuries, by what means, homicide. 18 The fact that there is an acquittal 19 because -- and he cannot prove exclusive opportunity, 20 would not mean that we'd go and change that file; it's 21 still a homicide. 22 MR. PHIL CAMPBELL: I'm not asking you, 23 understand, Dr. Cairns, about changing your coroner's 24 investigation statements -- 25 DR. JAMES CAIRNS: Oh, I'm sorry.
721 MR. PHIL CAMPBELL: -- in response to 2 what the Justice System does and whether it acquits or 3 not; I'm asking whether they are being changed -- have 4 already been changed, or should quickly be changed -- in 5 response to the pathological findings of the Chief 6 Coroner's review, where in many cases findings of 7 homicide have now been discredited so that they ought to 8 be undetermined or accidental. 9 I'm asking you in light of the Chief 10 Coroner's review -- and setting aside what the Justice 11 System may ultimately do, and I've covered that with you 12 -- should the Coroner's Office be changing its 13 documentation? 14 DR. JAMES CAIRNS: I personally would 15 have no problem in doing that. Now, in regard to the 16 expert panel's view of each case, I have only been aware 17 of that exper -- exper -- expert panel's views -- only 18 read them -- since the middle of October until now, as I 19 was preparing for this. 20 I was not involved in the meetings with 21 regard to this prior to that at all, so therefore, as I 22 sit here today, my information comes from my reading of 23 this, and I'll admit I was preoccupied with considering 24 testifying, but would -- would I lean back and say, You 25 know, let's sit down and in our records, having heard the
731 experts, if we agree with the experts are we to -- are we 2 prepared to change these from homicide, to undetermined, 3 to accidental; I personally would have no problem with 4 that. 5 MR. PHIL CAMPBELL: And if you did do 6 that, based on the pathology -- based on your area -- if 7 you did that, would you then be required by law or 8 practice to circulate the revised findings to the family? 9 DR. JAMES CAIRNS: I would have no 10 problem with that. I probably -- as we did in the Valin 11 Johnson case -- I would probably appropriately take that 12 to the Crown -- to the Criminal Division of the Crown's 13 Office. 14 MR. PHIL CAMPBELL: And say here's what 15 we've done? 16 DR. JAMES CAIRNS: Yes. 17 MR. PHIL CAMPBELL: There is now an 18 official version, official because the Coroner's Office-- 19 DR. JAMES CAIRNS: Yes. 20 MR. PHIL CAMPBELL: -- creates official 21 records. 22 DR. JAMES CAIRNS: Yes, and then I'm -- 23 MR. PHIL CAMPBELL: Here is an official 24 version of this homicide -- pardon me, this punitive 25 homicide -- that says it's undetermined or likely
741 accidental. 2 DR. JAMES CAIRNS: I -- I think, and I'm 3 thinking as we go along because I haven't put -- I -- I 4 would be prepared personally to, in cases like that, in 5 the same way as we did in Valin Johnson; once our office, 6 primarily through the work of Dr. Pollanen, said we've 7 got no evidence of a sexual assault; we've got no 8 evidence of a homicide, I would -- as I did there -- I 9 would take that to the -- to the Crown Law Criminal and 10 say, Here is now the position of the Office of the Chief 11 Coroner on this case. 12 It's still somewhere in the criminal 13 justice system, and I suggest that you pass these on to 14 the appropriate people. So I would feel that they still 15 have a role to do that. 16 MR. PHIL CAMPBELL: You would be 17 comfortable in taking that much of an initiative? 18 DR. JAMES CAIRNS: I would, yes. 19 MR. PHIL CAMPBELL: But it requires 20 altering the documentation first; reopening the files and 21 changing the outcome -- 22 DR. JAMES CAIRNS: Well -- 23 MR. PHIL CAMPBELL: -- or -- or adding 24 addenda. 25 DR. JAMES CAIRNS: It re -- it requires a
751 review of the evidence and I don't know in a bureaucratic 2 manner whether -- when we sent the report on Valin 3 Johnson to -- to Mr. Campbell -- I don't know if we said, 4 Oh, we can't do that until we get some bureaucratic file 5 and take it off. 6 If -- that would -- subsequently should be 7 done, but if the review, as it did in this case, 8 indicated that we felt this was no longer a homicide, I'd 9 bring that to the -- to the attention of -- of the 10 Criminal Division. 11 MR. PHIL CAMPBELL: I want to ask you a 12 little bit more about reviewing and revising findings. 13 It is obvious, and proper that coroners and your office 14 work much more with people in the prosecution side of the 15 justice system, then the defence side. 16 You work routinely with police officers, 17 and occasionally, with Crown attorneys, correct/ 18 DR. JAMES CAIRNS: Yes. In the nature -- 19 MR. PHIL CAMPBELL: And exceptionally 20 with defence lawyers? 21 DR. JAMES CAIRNS: It's -- it's the 22 nature of the job, correct. 23 MR. PHIL CAMPBELL: All right. You'd 24 accept, however, that where a suspect has been 25 identified, and may be arrested, he or she may have a
761 very reasonable wish to arrange a second autopsy with a 2 defence retained pathologist, is that fair? 3 DR. JAMES CAIRNS: Yes, I do. Yes. 4 MR. PHIL CAMPBELL: And maybe even 5 arrange attendance by a defence pathologist at the first 6 autopsy? 7 DR. JAMES CAIRNS: Correct. 8 MR. PHIL CAMPBELL: And you would accept 9 as well that an accused -- a guilty accused or an 10 innocent accused, or an accused with some shade of 11 culpability, in any of those categories, may have 12 information relevant to the autopsy? 13 DR. JAMES CAIRNS: Correct. 14 MR. PHIL CAMPBELL: Whether it's from 15 proximity to the deceased, or from whatever circumstances 16 are alleged to have constituted the homicide. 17 And as I think you've indicated in passing 18 this morning, one (1) of the exceptional things about 19 evidence in the pathology setting, is that it degrades 20 very quickly. 21 DR. JAMES CAIRNS: Correct. 22 MR. PHIL CAMPBELL: What is your office's 23 position on whether if counsel for an accused requests 24 attendance at a first autopsy, the quick conduct of a 25 second autopsy or an exhumation, in some cases, your
771 office should respond favourably to that. 2 Are you -- is that a matter in which you 3 are prepared to take an initiative, or is your response 4 dictated by the Crown's response? 5 DR. JAMES CAIRNS: I have already done 6 this on quite a number of occasions. Probably the most 7 frequent occasion will be where there has been a police 8 shooting. And following the police shooting, the family 9 request a second autopsy. 10 And under those circumstances we will 11 retain the body until they can get their expert, and we 12 will allow that expert the full use of our facilities. 13 In other words, we won't say, You've got to go and do it 14 in a funeral home. 15 We will allow them the full use of our 16 facilities and in addition, if they wish, they can have 17 the full use of our pathology assistants to help them 18 with that. Although we leave that up to that 19 pathologist, because the pathol -- he may feel that the 20 pathology assistants is part of our system, he may not 21 want them there. 22 So that has been a given since I've been 23 there in 1991, with regard to that type of case. We have 24 also in non-police shootings, in homicides, have allowed 25 a second autopsy.
781 And this is a practice that I know is more 2 familiar in the British Isles. The last one (1) I can 3 think of specifically, and it relates to Dr. John Butt, 4 and this was a homicide where an elderly man fell down 5 the stairs. 6 His -- a rel -- a younger relative was 7 there, and when the coroner went to the scene, the 8 coroner was not satisfied that the type of injuries and 9 the type of bruising on this individual suggested a fall 10 down the stairs. 11 The Ontario provincial police were called, 12 and there was an autopsy carried out in our office the 13 following day, the major features of which, were a 14 depressed skull fracture which had a pattern to it; not 15 what was causing it, but there was a pattern to it. 16 And in addition there was evidence of 17 strangulation with a fractured hyoid bone. The piece of 18 skull that may have been evidentuary value regarding the 19 shape or type of weapon was kept, and the whole of the 20 neck was kept, which is standard practice for further 21 dissection. 22 The next day I got a call from Dr. Butt. 23 He had been retained by the family to do a second 24 autopsy, in addition with another pathologist from St. 25 Louis. Could they come and do that autopsy? Yes. Well
791 we can't get there for a day or two (2), will -- will you 2 hold on to the body? 3 The answer was, Yes. And in that case, 4 there was no issue, because this was a family member 5 murdering another family member. They came, they did the 6 autopsy, and, of course, in doing that autopsy they did 7 not have available to them the piece of the fractured 8 skull, which we had retained. And they did not have 9 available to them any of the tissues in the neck. 10 So at the end of it, Dr. Butt come up and 11 said, you know, Jim, we may have to come back some time 12 later because clearly whatever caused this man's death, 13 you have quite rightly retained, so they're not available 14 for us to look at them. 15 Would you agree to let us looking at those 16 now? I said, I have no issue with that, and we had a 17 case conference with Dr. Chiasson, the Crown attorney, 18 who had carriage of the case, the OPP, and myself. And 19 the argument I put was this man has been accused, and he 20 has legal counsel, so he's not going to be saying 21 anything further. 22 Since he's now been accused, he's got the 23 right to disclosure. And he's going to get this 24 disclosure sooner or later. I think it's in the value -- 25 it's in everybody's interests to give the disclosure now
801 because if we don't give the disclosure now, it leaves us 2 open to the argument later, Oh, well, isn't it wonderful 3 the way that fractured skull matched exactly the weapon 4 you found six (6) weeks later; so the -- the argument 5 that the evidence has been contaminated with and likewise 6 with the neck tissues. 7 And there was total agreement that we 8 would, right there and then, let the two (2) pathologists 9 photograph and examine both of those retained parts of 10 the body providing, in their examination, they did not in 11 any way alter them because they still hadn't been fully 12 processed. 13 That was agreed to, and they did that, and 14 I considered that a very satisfactory and fair way of 15 doing things. 16 MR. PHIL CAMPBELL: Did there have to be 17 agreement from the Crown or the police for you to direct 18 what you did? 19 DR. JAMES CAIRNS: I felt it appropriate 20 to discuss it with them. There was actually no issue 21 with them -- them at all, so the issue about, they're 22 saying no, no, no and us saying yes, yes, yes did -- did 23 not come up. 24 MR. PHIL CAMPBELL: Did you have legal 25 control of the body at that point?
811 DR. JAMES CAIRNS: Yes, so had push come 2 to shove, we could have said yes, but I think -- I think 3 the more there is discussion and collaboration the -- the 4 better it is. 5 MR. PHIL CAMPBELL: Would a set of 6 recommended criteria for when that would be helpful be an 7 appropriate subject for the Commissioner's review? 8 DR. JAMES CAIRNS: I -- I have no problem 9 because I don't think it's needed; we're already doing 10 it. Our problem -- our problem is much different from 11 the British Isles. If we have someone murdered, the 12 family expects us to do the autopsy promptly, and they 13 expect relief -- release of that body. 14 And they -- in this multicultural society 15 with different views on when you be buried would become 16 an absolute nightmare. My daughter's been mur -- been 17 murdered, I want to bury her, and you're telling me that 18 I cannot bury my daughter for the next four (4) months, 19 five (5) months until we arrest someone and they get 20 their -- their second pathologist -- that's something 21 that's way beyond what I can -- and I know, in fact, that 22 that happens in England with great distress. 23 I'm not sure how much in England the 24 multi-culture aspect would come into it, but I can see it 25 coming in tremendously. I can think of a number of relig
821 -- religions who -- they even fight us having the autopsy 2 done in the first place -- but to say, okay, this is a 3 homicide, we don't have a suspect, and I'm sorry we're 4 holding onto your body for the next -- we could -- we 5 could physically hold onto it, that's not the issue, but 6 it's going to be ha -- somebody -- much more than -- than 7 our office is going to have to make that -- that sort of 8 major cultural decision. 9 MR. PHIL CAMPBELL: So having regard to 10 the fact that there are competing considerations here, 11 which you've -- some of which you've just identified, it 12 might be a useful subject for the Commissioner's 13 consideration? 14 DR. JAMES CAIRNS: Oh, I -- and in -- 15 MR. PHIL CAMPBELL: Because you accept 16 that the defence does have a legitimate stake in early 17 access to the body in as fresh, if I may use that word, 18 condition as possible. 19 DR. JAMES CAIRNS: And in any -- any 20 stage where that request has been made within a early 21 stage, we have allowed that. And, in fact, the -- 22 normally what we do is we will allow the pathologist in; 23 we will not allow the family in. But there the one (1) 24 occasion, in fact, when we let the lawyer in, as well. 25 Maybe because we thought the lawyer would
831 then be a witness and would have to go off the case. 2 MR. PHIL CAMPBELL: Goodness. I have to 3 return now, Dr. Cairns, in the time I have left, which is 4 not long, to Dr. Smith and to your own involvement and 5 your office's involvement with him over the years as 6 complaints mounted, and Ms. Rothstein took you through 7 that history on Monday and Tuesday. 8 Two (2) landmarks; one (1) in January of 9 2001, Dr. Smith was deprived or stripped of his 10 entitlement to do forensic autopsies under the Chief 11 Coroner's Off -- auspices, correct? 12 DR. JAMES CAIRNS: That's correct. 13 MR. PHIL CAMPBELL: But you personally 14 retained a significant measure of faith in his abilities 15 and integrity following that decision. 16 DR. JAMES CAIRNS: That's correct. 17 MR. PHIL CAMPBELL: Manifest in the 18 endorsing report that you provided to Crown counsel on 19 Paolo's case in September of 2001. 20 DR. JAMES CAIRNS: That's correct. 21 MR. PHIL CAMPBELL: And I, perhaps, used 22 the right word "inadvertently", or you did yesterday, I 23 think. It's a fair summation of your history with Dr. 24 Smith, and not just yours, but yours in particular, that 25 endorsement of him and support of him in -- in the media
841 and in litigation was, fundamentally, a matter of faith, 2 correct? 3 DR. JAMES CAIRNS: Correct. 4 MR. PHIL CAMPBELL: And I use that in 5 contrast to being a matter of science because you 6 disclaimed the ability to have assessed the finer points 7 of his pathology yourself. 8 DR. JAMES CAIRNS: Correct. 9 MR. PHIL CAMPBELL: And over the course 10 of a number of years as complaints about him mounted, you 11 did not direct a thorough review of his work and his 12 skills by anybody who was equipped for that role; that's 13 fair to say, isn't it? 14 DR. JAMES CAIRNS: I will answer you in 15 this regard; when Dr. Chiasson was the Chief Forensic 16 Pathologist, part of his function would be to analyze his 17 autopsy reports. In other words, he would be qualified 18 to make the comparison. 19 Now, I will leave it to Dr. Chiasson how 20 much he was able to do that or not, but for a period of 21 time, we did have Dr. Chiasson in the office who would 22 have the ability to do a expert-to-expert evaluation. 23 MR. PHIL CAMPBELL: There was no point at 24 which you said to Dr. Chiasson, or any other qualified 25 expert, We are under siege in respect of Dr. Smith's
851 pediatric autopsies. It is time for a thorough review of 2 the quality of his work generally and in individual 3 cases. 4 DR. JAMES CAIRNS: That is correct. 5 MR. PHIL CAMPBELL: Given that there was 6 no such comprehensive or in-depth review by a qualified 7 pathologist directed and that your endorsement of Dr. 8 Smith rested fundamentally on faith in him -- faith 9 coloured by the things you've discussed -- his own 10 apparent sincerity and his -- his vaunted reputation, 11 should we understand the response of your office, in 2001 12 particularly, to be fundamentally an institutional 13 closing of the ranks around Dr. Smith; around a besieged 14 colleague? 15 DR. JAMES CAIRNS: I -- I don't agree 16 with that. In 2001 there -- certainly we were aware of 17 his delays and we were aware of the Amber case, the Jenna 18 case, the Sharon, and then very quickly, the Tyrell case. 19 And those cases were still considered individual cases. 20 They were not, as they should have been, 21 with hindsight, considered as a collective situation. 22 What they did trigger was take him off the rota and stop 23 him doing any more suspicious or criminally -- suspicious 24 or criminal cases. 25 It did not go as far as to say, Right, we
861 need to do a review of his whole work. And in fact, the 2 first and only time discussion about, do a complete and 3 full review of his own work occurred was in 2005 -- being 4 correct with the year, when I brought over to Mr. 5 Campbell, the report on Valin Johnson; went back to the 6 office, and then discussed, Okay, here it is our decision 7 that we've got a clear case where an innocent man, in our 8 opinion, was in jail. I think we have to start and do a 9 complete external. 10 So the first time the discussion occurred 11 was at that time. 12 MR. PHIL CAMPBELL: But the media had, 13 for instance, connected the dots about Dr. Smith two (2) 14 years before 2001? 15 DR. JAMES CAIRNS: I'm well aware of 16 everything the media have said. I'm answering -- I'm 17 telling you that Yes, they connected the dots before we 18 connected the dots. 19 MR. PHIL CAMPBELL: And you accept that 20 your connecting of the dots was belated? 21 DR. JAMES CAIRNS: I accept that 22 completely. 23 MR. PHIL CAMPBELL: All right. Now your 24 own loss of faith in Dr. Smith came about as a result of 25 your meeting with him in April of 2002?
871 DR. JAMES CAIRNS: That's correct. 2 MR. PHIL CAMPBELL: And you described 3 that -- that water shed event vividly yesterday. After 4 the stripping of the autopsy entitlement in January 2001, 5 and your encounter with him in 2002, when you came then 6 to doubt both his integrity and his ability, do you 7 believe that the response of your office was 8 proportionate to the findings that had been -- to the 9 awareness that had settled upon you? 10 DR. JAMES CAIRNS: I think the way I 11 answered that question was, we felt we had him muzzled. 12 We felt we had him doing things that he was capable of 13 doing and would not affect any issues in the justice 14 system. 15 He was going to be doing hospital 16 autopsies only, for which he was qualified to do, at Sick 17 Kids. So that was the logic at that time. Are you 18 asking me now, in hindsight, or as in hindsight, the 19 phrase comes to me that the foresight of the sailor is 20 much -- the hindsight of the sailor is much greater then 21 the foresight of the captain. 22 So in that light, I accept, and it is 23 obvious that there was sufficient, at that time, to say, 24 Right, down tools, and full steam ahead with an external 25 review.
881 MR. PHIL CAMPBELL: All right. I just 2 want to ask about another aspect of this. You said that 3 you thought he was contained and not in a position to do 4 further damage. 5 Isn't Dr. Smith, after January 2001, and 6 after April of 2002, still going to court? 7 DR. JAMES CAIRNS: He would have been 8 going to court in cases that he was doing, yes. 9 MR. PHIL CAMPBELL: Did any kind of alert 10 go out to the Justice System saying, beware of Dr. 11 Smith's greatly reduced status and stature in the Chief 12 Coroner's Office? 13 DR. JAMES CAIRNS: What did go out was 14 exactly that. We went to Dr. -- to John McMahon in 15 January 2001 and said his opinions are coming under great 16 scrutiny; if you have any cases before the courts, coming 17 to the courts, partway through the courts, please let us 18 know, and we will review those cases. 19 So we did put that alert out to the Crowns 20 and to the police. 21 MR. PHIL CAMPBELL: But we saw the scope 22 of the review that was conducted in light of Ms. 23 Rothstein's questioning. 24 DR. JAMES CAIRNS: The -- 25 MR. PHIL CAMPBELL: It would -- am I
891 wrong in summarizing it as a -- as an internal review 2 that caught virtually nothing to be worried about, and 3 created no documentary record, and an external review 4 that was quite quietly suspended three (3) months after 5 it was ordered? 6 DR. JAMES CAIRNS: With regard to those 7 cases that were brought to our attention, either by the 8 police or the Crowns, where there was an active process 9 going on in the court system; they were looked at. 10 And in fact, the Jenna Case was still 11 before the courts, and we went to great lengths to get 12 all sorts of experts to try and assist in that one. And 13 the other case, and I'm sorry, I don't want to use the 14 wrong name, but it was a case where we referred that out 15 to Dr. Dowling in Alberta for -- for an opinion; that 16 case was still before the Courts. 17 So in any case that was before the Courts 18 that there was any concern that Dr. Smith's opinion was 19 wrong, we did look at those. 20 MR. PHIL CAMPBELL: But no -- nothing was 21 done to prevent Dr. Smith from representing himself as a 22 pathologist in good standing and as, indeed, a highly 23 reputable source of pathology opinion, is that right? 24 DR. JAMES CAIRNS: It -- it is my 25 recollection that every time he got on the stand he was
901 being criticised as to whether he was a pathologist in 2 good standing. 3 A pathologist in good standing is a -- 4 there's a reference made to what the college considers 5 him; do the college consider him a pathologist in good 6 standing? 7 MR. PHIL CAMPBELL: He -- well, let's 8 take a look at PFP118732. I think you'll only see it on 9 the screen here. This is Dr. Smith's CV from, as I 10 understand it, 2003. And you will see under "employment" 11 at 3(A) that he is describing himself as Director of the 12 Ontario Pediatric Fo -- Forensic Pathology Unit from 1992 13 and continuing. 14 He was that, wasn't he? 15 DR. JAMES CAIRNS: He was that. 16 MR. PHIL CAMPBELL: And would you -- and 17 that is, of course, a unit that's associated with the 18 renowned Hospital for Sick Children. 19 DR. JAMES CAIRNS: Correct. 20 MR. PHIL CAMPBELL: And he was entitled 21 to go from Court to Court and tell Judges and juries that 22 that was the status that he enjoyed in the world of 23 forensic pathology. 24 DR. JAMES CAIRNS: That is correct. 25 MR. PHIL CAMPBELL: And was any attempt
911 made to either prevent him from doing that or correct the 2 impression that it might have left? 3 DR. JAMES CAIRNS: My understanding, and 4 I think it has come out in evidence already, is that 5 there was a discussion between Dr. McLellan, when he was 6 the acting Chief Coroner, and Dr. Young, the Chief 7 Coroner, indicating that any issues regarding Dr. Smith 8 would rest with Dr. Young. 9 Dr. McLellan was of the opinion that he 10 wanted him taken off things sooner, and Dr. Young said, 11 No, he was leaving him. 12 MR. PHIL CAMPBELL: So he got to maintain 13 the position, and he got to testify about the position. 14 DR. JAMES CAIRNS: He would not be 15 technically wrong in saying -- until the date that he was 16 terminated as the -- as the director of that unit, he 17 would not be technically wrong to say that that's the 18 position he was in. 19 MR. PHIL CAMPBELL: Was his CV on file 20 with the Chief Coroner's Office? 21 DR. JAMES CAIRNS: I said -- whether his 22 2003 CV was on file -- but let's say it was on file, so 23 let's say the -- the CV you are showing me now and your 24 pointing to me, is he the director; that was a correct CV 25 because he had not been removed.
921 MR. PHIL CAMPBELL: And should that -- 2 did that and should it have triggered some concern about 3 how he was being perceived and how he was representing 4 himself in Court? 5 DR. JAMES CAIRNS: The o -- the only 6 discussion I remember in that regard is a discussion 7 between Dr. McLellan and Dr. Young, and Dr. Young saying 8 he can stay on in that position. 9 MR. PHIL CAMPBELL: Can I see PFP115716? 10 COMMISSIONER STEPHEN GOUDGE: You have 11 about ten (10) minutes left -- 12 MR. PHIL CAMPBELL: I appreciate that, 13 Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: -- Mr. 15 Campbell. Just -- and then we'll take our morning break. 16 17 CONTINUED BY MR. PHIL CAMPBELL: 18 MR. PHIL CAMPBELL: Okay. This is 19 115716; a letter from Mr. Lomer to -- to you personally. 20 Have you seen this document any time recently, because 21 I'd sooner just summarize it, than read it? 22 DR. JAMES CAIRNS: Oh, no, I -- I -- I 23 have seen it recently, yes. 24 MR. PHIL CAMPBELL: It's a letter dated 25 April 3rd, 2001, and it is in it's substance a request by
931 Mr. Lomer as former counsel for Billy Mullins-Johnson, to 2 have his case reopened because of what he understands to 3 be the external review that your office has just visibly 4 promised will be conducted in relation to Dr. Smith, 5 correct? 6 DR. JAMES CAIRNS: Correct. 7 MR. PHIL CAMPBELL: And he says: 8 "This is a case that -- " 9 As he puts it. 10 " -- has always caused me nagging 11 doubt." 12 With respect to his guilt, even though he 13 writing now as a private citizen, correct? 14 DR. JAMES CAIRNS: Correct. 15 MR. PHIL CAMPBELL: Mr. Lomer would say 16 that he never got a reply to this letter. Do you have 17 any information to the contrary? 18 DR. JAMES CAIRNS: I have no information 19 to the contrary. 20 MR. PHIL CAMPBELL: As Dr. Smith's 21 reliability and reputation plunged between 2001 and 2002, 22 was any consideration, at that time, to revisiting his 23 old cases. You've talked about concern regarding his 24 current cases. 25 DR. JAMES CAIRNS: No consideration was
941 given to reviewing his old cases. 2 MR. PHIL CAMPBELL: And not generally and 3 not in response to Mr. Lomer's specific concerns about 4 one (1) case. 5 DR. JAMES CAIRNS: I will indicate that 6 this letter appears to be coming from a private citizen, 7 so it -- it -- the letter itself is a bit ambiguous. But 8 there is on this letter a -- a notation from my executive 9 officer, Jeff Mainland, which pulls up the date of death 10 of the deceased. 11 And to the -- at that time, when that was 12 pulled up, we could find no reference to Dr. Smith being 13 involved with that case at all. 14 MR. PHIL CAMPBELL: No reference to Dr. 15 Smith being involved with Valin's case? 16 DR. JAMES CAIRNS: Because he had been 17 hired by the Crown attorney, in that case, and, 18 therefore, there was nothing in our records to indicate 19 that. There was no report done by -- there was no 20 written report to the best of our ability to find -- 21 there was no written report done by Dr. Smith for that 22 case. 23 Even though in a memo in 1997 -- and I 24 can't bring it forward, it -- it is a letter where Dr. 25 Smith wrote to me saying that he was continuing to get
951 requests for consultations. Now, that he got a request 2 for consultation, what's should he do; just reply to the 3 coroner or the pathologist or should he copy it to the 4 investigating coroner, the regional coroner, and the 5 chief coroner's office. And since he was spending some 6 time -- considerable time doing this, would it be 7 appropriate for him to bill our office for doing that 8 service. 9 And I wrote back indicating that if you're 10 doing a consultation, please send a copy of that 11 consultation to our office, and we will accommodate a 12 reasonable remuneration on that. Now, I do not -- cannot 13 -- first of all, I know he did not write a consultation 14 because we could not find a consultation even after the 15 trial. 16 So there would have been -- and there was 17 no consultation in our file, and from a review of our 18 file, it appeared he had nothing to do with the case. 19 MR. PHIL CAMPBELL: So was the inference 20 that you drew from that scrutiny of your records, that 21 Mr. Lomer had simply had some spurious false memory about 22 his involvement with this man serving a sentence for 23 first degree murder, and you dismissed the concerns in 24 that letter in light of what was then known about Dr. 25 Smith because you couldn't turn up a -- a document?
961 DR. JAMES CAIRNS: This letter we 2 considered to be from a private citizen. We weren't sure 3 exactly where he was going with it, but the answer to 4 your question is, we couldn't find any reference to Dr. 5 Smith and tha -- that was it. 6 MR. PHIL CAMPBELL: And was review, at 7 that time, purely internal? 8 DR. JAMES CAIRNS: The review, at that 9 time, was purely a look at the file for that deceased 10 individual. 11 MR. PHIL CAMPBELL: You didn't think 12 maybe you'd call a Crown attorney or a police office to 13 see if Dr. Smith had touched the case? 14 DR. JAMES CAIRNS: I -- I've just 15 answered that. The only thing that was done was the 16 review of the file. 17 MR. PHIL CAMPBELL: And would that be 18 another thing in retrospect to regret about your office's 19 handling of Dr. Smith's cases? 20 DR. JAMES CAIRNS: In retrospect, 21 hopefully, if somebody is doing a consultation they will 22 be sending a copy of it to our -- to our file. And the - 23 - the letter -- and I'll leave it up to the Commissioner, 24 the -- the letter, although it was coming from a lawyer, 25 it wasn't the typical lawyer letter.
971 Well, I'm just a private individual and, 2 I'm bringing to you this attention, so, we did not pay as 3 much attention to that letter as we would have had it 4 been written, shall we say, as a very formal letter. But 5 even then that's not to -- that's not -- that's not to 6 blame Mr. Lomer. 7 The -- all that was done was we looked, 8 couldn't find it in the file and thought, this case has 9 nothing to do with him. 10 MR. PHIL CAMPBELL: It may be an obvious 11 question, Dr. Cairns, but wouldn't -- wouldn't it be 12 logical to treat a letter coming from a respected 13 criminal lawyer, who has had substantive contact with 14 your case, and is now personally concerned rather then re 15 -- retained to be concerned, to treat that as a matter 16 triggering greater concern than a -- a lawyer's letter? 17 DR. JAMES CAIRNS: The concern it 18 triggered was a look at the file and no evidence in the 19 file that he was there. In fact, the irony is, when I 20 eventually went to talk to Dr. Smith, and I think we 21 heard this evidence, when we were looking for the slides, 22 initially Dr. Smith said he had absolutely nothing to do 23 with the file. 24 Now it was only on prompting by bringing 25 in his secretary, because we're saying, Look -- now at
981 that time, I did have evidence that he was involved in 2 the file, because I'd read the transcript. 3 So I said, Come on, what do you mean you 4 have no recollection of this, I have a transcript. No, I 5 don't remember any of it. And it took the intervention 6 of his secretary to indicate. 7 Even though, sadly, in preparing for this 8 Inquiry, I realized that in the intervening before the 9 Crown Law Criminal requested us to try and get that, that 10 there had been umpteen letters to him saying, We need 11 these. 12 So how with those umpteen letters sent to 13 him, he could sit there that day and say, I don't even 14 remember, is mind boggling. 15 MR. PHIL CAMPBELL: I've only got time 16 for one (1) more short line of inquiry, and it's this: 17 You were taken through a long series of opportunities to 18 identify dereliction of duty on the part of Dr. Smith 19 from your tenor in the office beginning in 1994 to his 20 final, I suppose, disgrace and removal -- or "disgrace" 21 is a loaded word, but his final stripping of all titles 22 and offices in about 2004. 23 And you acknowledged repeatedly that you 24 did not see the signs or take the opportunity to act. 25 That is a fair summation of ten (10) years of supervision
991 of Dr. Smith, correct? 2 DR. JAMES CAIRNS: Of -- of the role that 3 I played in the supervision of Dr. Smith, that is 4 absolutely correct. 5 MR. PHIL CAMPBELL: Dr. Smith has of 6 course been, at least at a professional level, been held 7 accountable, and accountability is a subject matter of 8 this Inquiry. I understand you're leaving your position 9 next year. 10 Did you ever, in light of those events, 11 consider whether your position remained tenable, and 12 whether you ought to leave it in view of the failure to 13 monitor, supervise, and ultimately remove Dr. Smith? 14 DR. JAMES CAIRNS: I did not. 15 MR. PHIL CAMPBELL: Those are my 16 questions, Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 18 Campbell. Just before we break, Dr. Cairns, you were 19 asked a number of questions about the 2001/2002 period 20 where this was obviously a significant management issue 21 at the coroner's office. 22 Are you familiar at all with the Home 23 Office process of having a register of registered 24 pathologists who are then, by being on the register, able 25 to do autopsies? And my question relates to the
1001 corollary that the Home Office has that we heard about 2 last week; that is, a recognized process involving 3 insiders who will adjudicate the skill levels of those on 4 the register who have come under question. 5 Are you familiar with that process at all? 6 DR. JAMES CAIRNS: Yes, I am. And 7 without naming a name, I happen to testify at an inquest 8 in England where a particular pathologist was on that was 9 later taken off as a result of evidence by Dr. Crane and 10 Dr. Milroy. 11 So I am familiar with their mechanism, 12 yes. 13 COMMISSIONER STEPHEN GOUDGE: Had you had 14 some kind of process like that in 2001, would that have 15 been helpful? 16 DR. JAMES CAIRNS: It -- it would have 17 been helpful. It would have been helpful in fact in the 18 first place, if we'd had a body that's saying, your 19 competency is such that you will be equivalent of a Home 20 office pathologist. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. JAMES CAIRNS: That would have been a 23 lovely luxury because we were lucky to get pathologists 24 at all. 25 COMMISSIONER STEPHEN GOUDGE: Right.
1011 DR. JAMES CAIRNS: And I think you did 2 hear that in Northern Ireland, Scotland, England, Wales, 3 they still have forensic pathology professors, so it's 4 part of the University, and they have sub-speciality 5 exams in forensic pathology. 6 So they are a little more fortunate, and I 7 think they have a bigger pool to -- to look at. And 8 therefore if you've got, for the sake of argument, twenty 9 (20) applicants, and only two (2) jobs, you can certainly 10 pick the best applicants. Certainly, we were not in that 11 luxury position; however, having said that, do I think 12 something of that would be extremely valuable, 13 absolutely. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 Thank you. Any questions arising out of that? 16 MR. PHIL CAMPBELL: No, Commissioner, 17 thank you. 18 COMMISSIONER STEPHEN GOUDGE: Okay. We 19 will rise now for fifteen (15) minutes and come back with 20 you Mr. Wardle. 21 22 --- Upon recessing at 11:44 a.m. 23 --- Upon resuming at 11:51 a.m. 24 25 COMMISSIONER STEPHEN GOUDGE: Mr.
1021 Wardle...? 2 3 CROSS-EXAMINATION BY MR. PETER WARDLE: 4 MR. PETER WARDLE: Dr. Cairns, my name is 5 Peter Wardle, and I just want to indicate to you who I 6 act for. I act for a number of families, and in one (1) 7 case, a caregiver. And, therefore, these deceased 8 individuals; Nicholas, Jenna, Sharon, Athena, and Tyrell. 9 DR. JAMES CAIRNS: Thank you. 10 MR. PETER WARDLE: When you were examined 11 yesterday by Ms. Rothstein, Dr. Cairns, you were asked at 12 the end of your evidence about why the system failed to 13 detect the errors and remedy the errors in a timely 14 fashion, do you recall that set of questions and answers 15 with My Friend? 16 DR. JAMES CAIRNS: Yes, I do. 17 MR. PETER WARDLE: And one (1) of the 18 things you said was that you had undue faith in Dr. Smith 19 and that that was shared by others including the Crown, 20 the defence, and the judiciary, do you recall that? 21 DR. JAMES CAIRNS: I do. 22 MR. PETER WARDLE: And you actually re -- 23 called him an icon, and that was a term that you used a 24 number of times through your testimony. 25 DR. JAMES CAIRNS: Correct.
1031 MR. PETER WARDLE: In fact, you said at 2 one (1) point: 3 "It was impossible to get anyone to 4 take Dr. Smith on." 5 DR. JAMES CAIRNS: Correct. 6 MR. PETER WARDLE: I want to just examine 7 that issue in a little detail and discuss with you how 8 Dr. Smith came to become such an icon. And I want to 9 start, if I can, with his CV. And the one (1) I have is 10 slightly different; a different date than the one (1) Mr. 11 Campbell had just before the break. 12 It's PFP095493, and for you, Dr. Cairns 13 and for the Commissioner it's in Volume V, Tab 21. 14 15 (BRIEF PAUSE) 16 17 DR. JAMES CAIRNS: I've got that, thank 18 you. 19 MR. PETER WARDLE: So, Dr. Cairns, just 20 first looking at the first page, you'll see that the date 21 the CV was prepared is August 22nd, 2001. 22 DR. JAMES CAIRNS: Yes. 23 MR. PETER WARDLE: And just looking down 24 the page to his education and employment, you'll see he 25 started as a coroner's pathologist with the Province in
1041 1981. 2 DR. JAMES CAIRNS: Correct. 3 MR. PETER WARDLE: And that's just a 4 couple of years after you became a coroner, correct? 5 DR. JAMES CAIRNS: I became a local 6 coroner in 1979. 7 MR. PETER WARDLE: And if we go a little 8 further in this document to page 18 -- and I'll just give 9 you the PFP number while we're there -- you'll see a very 10 long list of invited lectures. 11 DR. JAMES CAIRNS: I do. 12 MR. PETER WARDLE: And, in fact, it goes 13 over for a number of pages, but I'm going to just take 14 you through it very slowly, if we can. 15 First of all, it appears from this list 16 that Dr. Smith began lecturing on forensic pediatric 17 pathology in the mid 1980s, do you see that? 18 DR. JAMES CAIRNS: That would be my 19 recollection, also, yes. 20 MR. PETER WARDLE: Okay. And around that 21 time he began giving seminars for the Ministry of the 22 Solicitor General. 23 DR. JAMES CAIRNS: Correct. 24 MR. PETER WARDLE: And that would be the 25 Ministry that at that time was responsible for the Office
1051 of the Chief Coroner, correct? 2 DR. JAMES CAIRNS: Yes. My 3 interpretation of that would probably read that he was 4 giving lectures on behalf of the Office of the Chief 5 Coroner. 6 MR. PETER WARDLE: All right, so right 7 from the beginning -- the mid 80s -- he was giving 8 lectures on behalf of your office, correct? 9 DR. JAMES CAIRNS: What that may mean 10 that he was giving a lecture to individuals in the 11 Ministry of the Solicitor General on forensic pathology. 12 MR. PETER WARDLE: All right. But in 13 some way associated with your office, would that be fair? 14 DR. JAMES CAIRNS: He had been invited -- 15 he was not employed by our office; he was employed by 16 Sick Kids so he wouldn't be giving this lecture on behalf 17 of the Ministry. 18 My reading of that is that he's given a 19 lecture, most likely, to coroners, but it -- it could, 20 technically, be police officers, but I think it's more 21 likely, so we don't split hairs, these were lectures he 22 was giving to either pathologists who were working for 23 our office or pathologists and coroners who were working 24 for our office. 25 MR. PETER WARDLE: Right, so he would be
1061 invited by your office to give these lectures, is that 2 fair? 3 DR. JAMES CAIRNS: Oh, that's correct, 4 yes. 5 MR. PETER WARDLE: And if you look a 6 little further on, by 1987, he's giving a lecture at an 7 Ontario eduna -- educational course for coroners on 8 unnatural pediatric deaths. 9 Do you see that -- that's item 10? 10 DR. JAMES CAIRNS: Yes, and I think that 11 -- that in fact is probably clarifying my earlier 12 statement that this was an educational course for 13 coroners. 14 MR. PETER WARDLE: In fact, as I 15 understand it, that's probably where you first met Dr. 16 Smith, is at one (1) of these educational events. 17 DR. JAMES CAIRNS: You're absolutely 18 right. 19 MR. PETER WARDLE: Okay. And as I 20 understand it, at that time he had an interest in this 21 work -- pediatric forensic pathology, correct? 22 DR. JAMES CAIRNS: Correct. 23 MR. PETER WARDLE: And there was no one 24 else who had that interest. 25 DR. JAMES CAIRNS: He was the first
1071 pathologist of any sort to express an interest in 2 pediatric forensic pathology to the best of my 3 understanding, yes. 4 MR. PETER WARDLE: And the Coroner's 5 Office, amongst others, was encouraging him to develop 6 that expertise, fair? 7 DR. JAMES CAIRNS: That is very fair 8 because there was a lack of such expertise in the system 9 at that time. 10 MR. PETER WARDLE: So if we go on a 11 little later, and we now start to look at the late 1980s, 12 and I'm not going to take you through this item by item, 13 but by the late 1980s, if you go on to the bottom of this 14 page, you'll see he's lecturing to Crown attorneys. 15 DR. JAMES CAIRNS: Correct. 16 MR. PETER WARDLE: In item 15, he's 17 giving a lecture to -- again, it looks like employees of 18 your ministry. It's hard to tell. It could be the 19 police. It could be some other form of investigator. It 20 could be coroners. We don't know from this description. 21 DR. JAMES CAIRNS: It looks like forensic 22 pathology and most of the people who would be doing 23 forensic pathology from our office would not -- in fact, 24 at that time would -- would not be employees of the 25 Office; they would be pathologists who, in their various
1081 hospitals, may be doing these cases. 2 And my assumption is that the homicide 3 investigators were coming from different police 4 departments because of their interest in the ti -- in the 5 -- the content of the lecture. 6 MR. PETER WARDLE: And if we go on a 7 couple of pages, now onto page 20, you'll see at the top 8 of the page, item 32, Educational Course for Coroners. 9 Would it be fair to say that, in the late 10 1980s and into the 1990s, Dr. Smith was a fixture at 11 these educational courses? 12 DR. JAMES CAIRNS: That would be 13 extremely accurate. 14 MR. PHIL CAMPBELL: And again, I'm not 15 going to go through all of them, but if we look at item 16 37, Child Abuse, it says Bick Police College. 17 So he's now lecturing at -- 18 DR. JAMES CAIRNS: The Toronto Police 19 College. 20 MR. PETER WARDLE: -- the Toronto Police 21 College. 22 DR. JAMES CAIRNS: Correct. 23 MR. PETER WARDLE: And that's consistent 24 with what you knew; that he was lecturing, not only to 25 coroners, but also to police officers and Crown
1091 attorneys. Correct? 2 DR. JAMES CAIRNS: Correct. 3 MR. PETER WARDLE: And is it fair to say 4 that all of that comes, at that time, with the assistance 5 and in -- encouragement of the Office of the Chief 6 Coroner? That's something your office very much wanted 7 him to do? 8 DR. JAMES CAIRNS: This is slightly 9 before my time, but I can indicate that yes, the Offices 10 of the Chief Coroner were very interested in Dr. Smith 11 getting more and more involved. 12 MR. PETER WARDLE: So -- 13 DR. JAMES CAIRNS: Because this was an 14 area that pathologists didn't understand well; coroners 15 didn't understand well; and the police didn't understand 16 well. 17 MR. PETER WARDLE: Correct. And this is 18 around the time, as I understood it, that you were 19 President of the Ontario Coroners Association? 20 DR. JAMES CAIRNS: That's correct. 21 MR. PETER WARDLE: And you would have 22 been interacting with Dr. Smith regularly at these 23 educational events? 24 DR. JAMES CAIRNS: That's correct. 25 MR. PETER WARDLE: Okay. And you'll see
1101 starting at item 35, Dr. Smith is now lecturing at an 2 international conference that's being held in Toronto; 3 First North American Conference on Child Abuse and 4 Neglect. Do you see that? 5 DR. JAMES CAIRNS: I do. 6 MR. PETER WARDLE: And I'm going to 7 suggest to you that at around this time, early 1990s, it 8 was very advantageous for your office to have someone who 9 had developed this type of expertise. 10 DR. JAMES CAIRNS: I would agree with 11 that entirely. 12 MR. PETER WARDLE: And by the early 1990s, 13 he was a member of the Paediatric Death Review Committee; 14 correct? 15 DR. JAMES CAIRNS: Yes, he was. 16 MR. PETER WARDLE: And then in 1991, when 17 the, what we're calling, the OPFPU is formed at Sick 18 Kids, he's made the first Director in 1992. Correct? 19 DR. JAMES CAIRNS: Correct. 20 MR. PETER WARDLE: So he now has formal 21 status. He's not just Charles Smith, MD. He's running a 22 unit. Right? 23 DR. JAMES CAIRNS: He's running a unit 24 that's being, in fact, supported by funds from our 25 office. Correct.
1111 MR. PETER WARDLE: Right. And it's 2 listed on his resume. If we went back to the beginning, 3 it would have been on his resume through that period? 4 DR. JAMES CAIRNS: Yes. 5 MR. PETER WARDLE: And is it fair to say 6 that being Director of that unit would have enhanced his 7 prestige? 8 DR. JAMES CAIRNS: I think that's a fair 9 statement. 10 MR. PETER WARDLE: Okay. And all of this 11 is happening, I suggest to you, with the active 12 encouragement and blessing, in fact, of your office. 13 Is that fair? 14 DR. JAMES CAIRNS: Yes. The only -- the 15 only caveat I will indicate there, is all of this -- 16 decisions, and that's not to pass -- preceded me joining 17 the office full time. 18 So was it the -- with the blessing of the 19 Office of the Chief Coroner, and the Chief Coroner being 20 Dr. Young, yes. Having said that, I didn't come in, in 21 October '91, and say anything to the contrary. And from 22 that time on, I was fully supportive also. 23 MR. PETER WARDLE: And if we go on a 24 little further, and I'm just going to take you to page 25 22. Now we're in the mid '90s.
1121 We now have him, at item 62, giving a 2 forensic pathology course for regional pathologists. Do 3 you see that? 4 DR. JAMES CAIRNS: I do. 5 MR. PETER WARDLE: And then at item 69 -- 6 I'm sorry, item 68, the Canadian Association of 7 Pathologists. Correct? 8 DR. JAMES CAIRNS: Correct. 9 MR. PETER WARDLE: In addition, do you 10 recall that Dr. Young went to international conferences 11 with Dr. Smith, and they presented at least one (1) paper 12 together? 13 DR. JAMES CAIRNS: I can't say yes or no. 14 I'm not denying it, but it doesn't -- an immediate recall 15 doesn't come. 16 MR. PETER WARDLE: Okay. 17 DR. JAMES CAIRNS: If you give me the 18 date, et cetera, it may help me, but I would -- I cert -- 19 it would not surprise me. 20 MR. PETER WARDLE: If we look at item 72, 21 now we're in 1998. Now Dr. Smith is giving a lecture -- 22 a presentation to the Association of Family Court Judges. 23 DR. JAMES CAIRNS: Correct. 24 MR. PETER WARDLE: So he's really arrived 25 at this point. Isn't that right?
1131 DR. JAMES CAIRNS: I concur. 2 MR. PETER WARDLE: Okay. And do you 3 recall, for example, that he and Dr. Young went to 4 meetings of the American Association of Forensic -- is it 5 forensic science? 6 DR. JAMES CAIRNS: Are we talking about 7 the American Academy of Forensic Sciences? 8 MR. PETER WARDLE: Sorry, the American 9 Academy. 10 DR. JAMES CAIRNS: I know that Dr. Young 11 was a member; I know that Dr. Smith lectured there, and 12 whether it was a joint lecture they were giving together, 13 if you -- if you point me to it -- but it would not 14 surprise me if they were doing that, yes. 15 MR. PETER WARDLE: Is it -- 16 DR. JAMES CAIRNS: I know Dr. Smith 17 lectured at the American Academy of Forensic Sciences. 18 MR. PETER WARDLE: Okay. And is it fair 19 to say that through this period -- and this is a period 20 when you were in the office from 1991 forward -- that Dr. 21 Young was actively assisting Dr. Smith's career? He was 22 -- he was promoting him wherever he could, isn't that 23 right? 24 DR. JAMES CAIRNS: That's correct. 25 MR. PETER WARDLE: So, I guess, the point
1141 I'm making, Dr. Cairns, is Dr. Smith didn't come out of 2 nowhere and become an icon overnight, did he? 3 DR. JAMES CAIRNS: That's -- that's 4 exactly correct. 5 MR. PETER WARDLE: And his career steps 6 all the way along from the mid 80s right forward to the 7 point we're at now, the mid to late 90s; all of those 8 steps were taken with the active encouragement and 9 involvement of the Office of the Chief Coroner? 10 DR. JAMES CAIRNS: That's correct. 11 MR. PETER WARDLE: Okay. And let me 12 suggest to you one (1) of the reasons for that 13 encouragement was that it was very useful for your office 14 to have someone with this expertise and with this 15 stature, isn't that right? 16 DR. JAMES CAIRNS: Correct. 17 MR. PETER WARDLE: So, for example, in 18 the Nicholas case, it was very useful for you to be able 19 to go to a meeting with the police and bring Dr. Smith 20 along because of his credibility and stature? 21 DR. JAMES CAIRNS: Correct. 22 MR. PETER WARDLE: And if you had a 23 meeting with the Children's Aid on that case, you'd be 24 able to bring Dr. Smith, again someone of stature in the 25 community, correct?
1151 DR. JAMES CAIRNS: Correct. 2 MR. PETER WARDLE: And the people at the 3 Sudbury Children's Aid wouldn't have any way of knowing 4 whether any of that expertise and credibility was true or 5 false, would they? 6 DR. JAMES CAIRNS: From their background, 7 no, they wouldn't. 8 MR. PETER WARDLE: And am I right that as 9 Dr. Smith began to develop his expertise and his 10 credibility, he began to give lectures and papers on 11 subjects that were, let's say, not strictly speaking, 12 within the area of pediatric pathology, correct? 13 DR. JAMES CAIRNS: Do you want to give me 14 an example? I mean, I'm not going to disagree, but if 15 you have an example in mind ... 16 MR. PETER WARDLE: Well, for example, a - 17 - a number of the talks he gives are about child abuse. 18 DR. JAMES CAIRNS: I could see where 19 child abuse could fit into the role of a pediatric 20 pathologist. 21 MR. PETER WARDLE: I can see that -- I 22 can see that, as well, sir, and I'm not suggesting 23 anything to the contrary, but there are a number of these 24 lectures that are just about a very broad topic, correct? 25 Child abuse?
1161 DR. JAMES CAIRNS: Child abuse is a broa 2 -- is a broad topic, yes. 3 MR. PETER WARDLE: And -- and Dr. Smith 4 was not a clinician, correct? 5 DR. JAMES CAIRNS: He was not a 6 clinician, correct. 7 MR. PETER WARDLE: And would you agree 8 with me that from your observation, he was one (1) of 9 those people in the mid 90s who was advocating for 10 increased awareness of child abuse and, you know, 11 response by law enforcement agencies? 12 DR. JAMES CAIRNS: I think that's a fair 13 statement. 14 MR. PETER WARDLE: Okay. In other words, 15 one (1) of the roles he played as he developed his 16 expertise was he played an advocacy role, is that not 17 fair? 18 DR. JAMES CAIRNS: I suppose we can 19 debate whether we're in an advocacy role or whether it 20 was he wanted to ensure that all the agencies out there 21 who may be responsible for investigating child abuse were 22 aware of the status of child abuse. 23 MR. PETER WARDLE: Well, let's call it a 24 public awareness role, is that fair? 25 DR. JAMES CAIRNS: I -- I think that
1171 would be a very fair statement. 2 MR. PETER WARDLE: So -- so Dr. Smith was 3 playing a -- what you considered to be an important 4 public awareness role in connection with child abuse? 5 DR. JAMES CAIRNS: Yes, I would accept 6 that. 7 MR. PETER WARDLE: And that's one (1) of 8 the roles he played in connection with the 1995 protocol; 9 the development of that protocol, correct? 10 DR. JAMES CAIRNS: That's correct. 11 MR. PETER WARDLE: Now, let me ask you 12 this, Dr. Cairns, in terms of systemic issues for the 13 Commissioner to address, do you see any potential 14 conflict between the role of an independent expert, like 15 Dr. Smith giving evidence in criminal cases, in child 16 protection cases, and the role of someone who has an 17 advocacy or public awareness role that they're carrying 18 on at the same time? 19 DR. JAMES CAIRNS: I -- I don't, quite 20 honestly. The lectures that the people from the SCAN 21 Team would give to clinicians who say, help us, we are 22 have -- we are seeing a child in the Emergency 23 Department, help us to be educated as what should we 24 think of as abuse, what should we not think of as abuse. 25 I would consider that them educating
1181 people who wanted the education and I would not see any 2 problems with them, also, in criminal cases testifying on 3 their expertise in child abuse. 4 MR. PETER WARDLE: Let's look at 5 something very specific, if we might, and the document 6 I'm going to turn up is PFP114437, and it's in your 7 binder, Volume V at Tab 24. 8 DR. JAMES CAIRNS: I have that, thank 9 you. 10 MR. PETER WARDLE: So if you look at the 11 first two (2) pages, this appears to be a presentation 12 given by two (2) -- two (2) homicide officers and Dr. 13 Smith to the Metropolitan Toronto Police Force, do you 14 see that? 15 DR. JAMES CAIRNS: I do. 16 MR. PETER WARDLE: Okay. And in fact, if 17 you go in a couple of pages we can sort of get an idea of 18 the dating of this. If we go to page 4 you'll see 19 there's a reference to the new protocol released by the 20 Chief Coroner Office, which would suggest to me that this 21 is around the mid 1990s. 22 DR. JAMES CAIRNS: I'll accept that, yes. 23 MR. PETER WARDLE: Okay. So, I want to 24 ask you some questions about Dr. Smith's part of this 25 lecture or seminar, and I want to go about six (6) pages
1191 in, it's page 444 -- 114444. 2 3 (BRIEF PAUSE) 4 5 MR. PETER WARDLE: It starts "Notes on 6 child abuse". Page 8 of the document. 7 COMMISSIONER STEPHEN GOUDGE: Yes, try 8 page 8 of the document. Yes. 9 10 CONTINUED BY MR. PETER WARDLE: 11 MR. PETER WARDLE: So just if you could 12 flip through this quickly, sir, this certainly does not 13 look like it was written by a police officer, so I'm 14 assuming it was written by Dr. Smith. 15 DR. JAMES CAIRNS: I'm sorry, I'm -- I'm 16 still may be on the wrong page. 17 MR. PETER WARDLE: It's about the eighth 18 page into the document, it's headed "Notes on child 19 abuse". 20 DR. JAMES CAIRNS: Can you give me the PF 21 page number? 22 MR. PETER WARDLE: It's 444. 23 COMMISSIONER STEPHEN GOUDGE: It's 24 114437/8. 25 DR. JAMES CAIRNS: Thank you.
1201 2 CONTINUED BY MR. PETER WARDLE: 3 MR. PETER WARDLE: Dr. Cairns -- 4 DR. JAMES CAIRNS: I've -- now I've got 5 that, thank you. No, I have it now, thank you very much. 6 MR. PETER WARDLE: So if you just flip 7 through the document quickly and see some of the subjects 8 covered, I'm going to suggest that this is likely Dr. 9 Smith's part of the presentation rather than that of the 10 homicide officers. 11 DR. JAMES CAIRNS: I would concur with 12 that. 13 MR. PETER WARDLE: Okay. So you'll see 14 that this document has an introductory section that deals 15 with child abuse generally, correct? 16 DR. JAMES CAIRNS: It does. 17 MR. PETER WARDLE: It has some statistics 18 about child abuse. 19 DR. JAMES CAIRNS: Yes. 20 MR. PETER WARDLE: And I understand from 21 other material that that was one (1) of the things that 22 Dr. Smith was particularly interested in and, in fact, he 23 published papers on statistics relating to child abuse; 24 correct? 25 DR. JAMES CAIRNS: Yes.
1211 MR. PETER WARDLE: So this would be an 2 example of something that while it's related to his field 3 it's not, strictly speaking, within pediatric forensic 4 pathology; correct? 5 DR. JAMES CAIRNS: If it's related to 6 abuse of live children then it's not directly within his 7 subspeciality. 8 MR. PETER WARDLE: And if we go on a 9 little further in this document to -- I'm sorry, I'm 10 going to get the page numbers. These -- 11 COMMISSIONER STEPHEN GOUDGE: There is 12 also numbers at the bottom -- 13 14 CONTINUED BY MR. PETER WARDLE: 15 MR. PETER WARDLE: They're numbered at 16 the bottom, and it's page 10. 17 DR. JAMES CAIRNS: Okay. 18 MR. PETER WARDLE: So if look at the 19 right- hand side of that, Dr. Cairns, you'll see that it 20 appears that the author is now dealing with socioeconomic 21 factors in relation to child abuse. 22 DR. JAMES CAIRNS: Correct. 23 MR. PETER WARDLE: And if you go to the 24 penultimate paragraph, which goes on to the next page, it 25 actually has a reference you'll see -- this is on page
1221 11: 2 "Within this group of families there is 3 a relationship between poverty and 4 severity of the injury." 5 And then in brackets, "(Smith)", which 6 suggests to me that Dr. Smith is referring to one (1) of 7 his own papers. 8 DR. JAMES CAIRNS: That would be my 9 interpretation, also. 10 MR. PETER WARDLE: And then it ends by 11 saying: 12 'Pure physical abuse is seen in the 13 higher levels of this povet -- poverty 14 stratum, while neglect is seen in the 15 families with the lower levels of 16 income." 17 So we have Dr. Smith giving a lecture to 18 Toronto homicide -- Toronto Police Force officers in 19 which he's giving them information that he's apparently 20 developed himself about socioeconomic factors in relation 21 to child abuse, correct? 22 DR. JAMES CAIRNS: That he has developed 23 himself, no. Has he developed that himself because he 24 had looked at the cases statistically and said a 25 statistical number of these cases are this and a
1231 statistical number of cases are that. 2 We certainly -- in some of our stuff that 3 we've put out in reports in terms of who kills young 4 children -- 5 MR. PETER WARDLE: Mm-hm. 6 DR. JAMES CAIRNS: -- we have put out 7 statistics analysis from the cases we knew about that in 8 50 percent it was the father and -- or 48 percent it was 9 the mother and then the next was a baby and a stranger. 10 So that would be -- that would be a sta -- 11 a statistical analysis which, I would say, is not an 12 opinion, it's just counting the figure; would you agree 13 with that? 14 MR. PETER WARDLE: No, I agree with that, 15 but when you say, "our office," the individual who's 16 writing this document and presumably giving a seminar is 17 also an expert witness. 18 And, in fact, that's the use for which 19 your office regularly engages him, correct? 20 DR. JAMES CAIRNS: Yes. I think I know 21 where you're coming from, but please correct me if I'm 22 wrong. Statistics like this are an academic; you'll get 23 it in any field. Statistics is so many do this, so many 24 do that, so many do the other. 25 Where I think that's inappropriate is to
1241 take those statistics and apply them to an individual 2 case. 3 MR. PETER WARDLE: No, and I'm -- and 4 that's not a direction. We're not going in the direction 5 of Roy Meadows this morning. 6 DR. JAMES CAIRNS: Sorry. 7 MR. PETER WARDLE: At least I'm not, 8 maybe you are, but I'm not. But let me just go a little 9 further. If we go on to the end of this section, and I'm 10 afraid the numbered pages end at 27, there's a couple of 11 charts that follow it. 12 And if you look at those charts, and 13 particularly there's one (1) that's headed, Dynamics of 14 Filicide. And then in the middle of the page, Comparison 15 of Mothers Who Kill. 16 We're now into the area of what I would 17 call psychological factors in connection with child 18 deaths, aren't we? 19 DR. JAMES CAIRNS: I would agree. 20 MR. PETER WARDLE: Okay. And once -- 21 coming back to my chronology, once Dr. Smith began to 22 lecture to the police, to Crowns, to judges, go to 23 international conferences. He gave presentations to law 24 students on how to be an expert witness; things of that 25 nature.
1251 And I'm not going to take you through all 2 the things that are in his CV, but -- but once he'd done 3 all those things, and just to add to that, he went on 4 international exhumations. Correct? 5 DR. JAMES CAIRNS: Correct. 6 MR. PETER WARDLE: He went on a well- 7 publicized trip to the Arctic. Correct? 8 DR. JAMES CAIRNS: Correct. 9 MR. PETER WARDLE: He went to India, and 10 he began to get favourable press treatment. Correct? 11 DR. JAMES CAIRNS: Correct. 12 MR. PETER WARDLE: There was a well- 13 publicized inquest that had some connection with the 14 events of this inquiry. Cassandra's case. 15 Do you recall that set of events? 16 DR. JAMES CAIRNS: I do, yes. 17 MR. PETER WARDLE: And in that set of 18 events, Dr. Smith got some very favourable press. 19 Correct? 20 DR. JAMES CAIRNS: That's correct. 21 MR. PETER WARDLE: And isn't it fair to 22 say that all along the way, whenever he gave a talk, or 23 wherever he gave a paper, or wherever he appeared, his 24 association with your office would have been very 25 apparent?
1261 DR. JAMES CAIRNS: His association with 2 our office would be very apparent, and in some others, 3 his association with Sick Kids would be very apparent. 4 MR. PETER WARDLE: So when you suggested 5 to us in your evidence that Dr. Smith had become an icon, 6 I want to just suggest a couple of things to you. 7 First of all, your office did have a 8 substantial role in the development of Dr. Smith's 9 career. You assisted his career. 10 DR. JAMES CAIRNS: I would say that is 11 correct. 12 MR. PETER WARDLE: Okay. Secondly, your 13 office benefited from its association with someone of 14 this stature. Correct? 15 DR. JAMES CAIRNS: I felt we benefited 16 from his expertise. We didn't get any more funding 17 because of Dr. Smith, but I think we benefited from his 18 expertise in assisting us with the investigation of 19 deaths. 20 MR. PETER WARDLE: I -- I understand 21 that, and I wasn't suggesting more funding. 22 But to be fair, you also benefited from 23 his pedigree. You had the guru associated with your 24 office that you could bring in on a complex case. 25 DR. JAMES CAIRNS: Well, that's exactly
1271 what I'm saying. 2 We had the luxury of having one (1) of -- 3 who was considered one (1) of the experts available to us 4 who may not have been available to somebody in Minnesota. 5 Yes. 6 MR. PETER WARDLE: So isn't it also true 7 that you had -- and when I say you, sir, I'm not 8 referring to you personally. I'm referring to your 9 office. 10 DR. JAMES CAIRNS: I understand. 11 MR. PETER WARDLE: But isn't it true that 12 your office had a vested interest in Dr. Smith's 13 continuing success? 14 DR. JAMES CAIRNS: We had a vested 15 interest in continuing to be able to use Dr. Smith's 16 services. 17 MR. PETER WARDLE: All right. And if Dr. 18 Smith turned out to have feet of clay, that would have an 19 unfavourable impact on your office. Isn't that right? 20 DR. JAMES CAIRNS: It would have an 21 unfavourable impact on our office because we would be 22 left with someone with no expertise, and we'd be lacking 23 in something that he possessed that did not appear others 24 possessed. 25 MR. PETER WARDLE: No, but to be fair, if
1281 Dr. Smith turned out to have feet of clay, that would be 2 highly embarrassing for your office, would it not? 3 Having built him up; having worked with 4 him over a period of in excess of ten (10) years, if this 5 individual turned out to have feet of clay, it would be 6 highly embarrassing? 7 DR. JAMES CAIRNS: It would depend on why 8 he had feet of clay. 9 I am aware of -- let's leave -- I am aware 10 of many eminent physicians that I've known who well- 11 deserve their reputation, and sadly, they may have had a 12 cancer in the family, a wife may have died, and they 13 become an alcoholic. 14 We are sad for the individual, but I don't 15 think it means that -- that it's anything to do with the 16 previous work, or it's anything to do with the 17 organization they were working for. 18 MR. PETER WARDLE: All right. I want to 19 talk with you briefly about the Nicholas case, and I'm 20 not going to go into the details, because My Friend has 21 been through that with you. 22 But am I right that this was the first 23 time, to your knowledge, that Dr. Smith had ever been 24 wrong? 25
1291 (BRIEF PAUSE) 2 3 DR. JAMES CAIRNS: The only reason I'm 4 delaying is I want to -- I'm going through the cases, and 5 to the best of my knowledge, that is the first time where 6 our office have agreed that he was wrong. 7 MR. PETER WARDLE: And it was the first 8 case in which you -- and I mean, by that, the office of 9 the Chief Coroner, had had to call in an international 10 expert to give a second opinion in one (1) of his cases. 11 DR. JAMES CAIRNS: To the best of my 12 recollection, that is also correct. 13 MR. PETER WARDLE: That had to be a major 14 event to have to go to that extreme, correct? 15 DR. JAMES CAIRNS: Yes, it was. 16 MR. PETER WARDLE: Okay. And the opinion 17 of that expert, just to remind you, was not only just 18 that Dr. Smith was wrong, but that there were no findings 19 on which to base his conclusions. 20 DR. JAMES CAIRNS: Yes, I'm aware of 21 that. 22 MR. PETER WARDLE: That's what Dr. Case 23 said -- 24 DR. JAMES CAIRNS: That's correct. 25 MR. PETER WARDLE: -- in her written
1301 report. 2 DR. JAMES CAIRNS: In her written report. 3 MR. PETER WARDLE: She didn't say that to 4 the fifth estate. 5 DR. JAMES CAIRNS: In her written report, 6 yes. 7 MR. PETER WARDLE: Right, which you read 8 at the time. 9 DR. JAMES CAIRNS: Correct. 10 MR. PETER WARDLE: And you told us that 11 although you discussed Dr. Case's report with David 12 Chiasson, it didn't have any impact on your view of Dr. 13 Smith at the time. 14 Is that correct? 15 DR. JAMES CAIRNS: I think it's fair to 16 say that the people in our office considered it a 17 difference of opinion between experts, and that we 18 considered Dr. Smith and Dr. Halliday to be equally 19 wrong. 20 MR. PETER WARDLE: Right, that's what you 21 said to My Friend yesterday. But Dr. Halliday was none 22 of your concern, was he? He didn't work for the Office 23 of the Chief Coroner. 24 DR. JAMES CAIRNS: Not at that particular 25 time.
1311 MR. PETER WARDLE: He didn't do autopsies 2 under coroner's warrant; Dr. Smith did autopsies under 3 coroner's warrant. 4 DR. JAMES CAIRNS: He had done autopsies 5 under coroner's warrant in Manitoba, and we accepted him 6 as a very reputable individual. 7 MR. PETER WARDLE: That's really not what 8 I'm getting at, sir. I'm simply suggesting when you said 9 -- and you've said it twice now -- that both of these 10 gentlemen had got it wrong. Your concern shouldn't have 11 been Dr. Halliday; your concern should have been Dr. 12 Smith. 13 DR. JAMES CAIRNS: And I think I answered 14 that on my end and I think our joint opinions is, Okay, 15 Dr. Case says one (1) thing, he says another thing; it's 16 a difference of opinion. 17 MR. PETER WARDLE: And let me just ask 18 you -- just stopping at that point in time; that's in 19 March of 1999. That's when you got -- 20 DR. JAMES CAIRNS: Correct. 21 MR. PETER WARDLE: -- Dr. Case's report. 22 DR. JAMES CAIRNS: Yes. 23 MR. PETER WARDLE: Do you accept, sir, 24 that from 1991 to 1994, when David Chiasson arrived, 25 there was no effective oversight of Dr. Smith by the
1321 Office of the Chief Coroner? 2 DR. JAMES CAIRNS: I would take it 3 further, most likely, and say from 199 -- 1981 upwards, 4 because to the best of my knowledge, Dr. Hillsdon Smith, 5 who was the Chief Forensic Pathologist, was not doing 6 anything about oversight, period. 7 MR. PETER WARDLE: And we -- we probably 8 don't need to come to this, but there was a -- an 9 agreement in place between the Hospital for Sick Children 10 and the Office of the Chief Coroner, or at least the 11 Ministry, at the time OPFPU was established, correct? 12 DR. JAMES CAIRNS: That's correct. 13 MR. PETER WARDLE: And I think you said 14 the other day that wasn't an agreement that you were 15 particularly interested in because it dealt with budgets 16 and numbers and those kinds of things. 17 DR. JAMES CAIRNS: Well, it -- it 18 preceded my timing, so the agreement had been signed at 19 that time. 20 MR. PETER WARDLE: It -- it's fair to 21 say, isn't it -- I'm sure you've had a chance to look at 22 the agreement at some point -- that that agreement 23 doesn't deal with oversight of that Unit at Sick Kids. 24 DR. JAMES CAIRNS: That's correct. 25 MR. PETER WARDLE: So there was nothing
1331 in place in writing with respect to oversight before Dr. 2 Chiasson arrived on the scene. 3 DR. JAMES CAIRNS: That's correct. Now, 4 I can only speculate perhaps the spe -- the reason there 5 was nothing in there for oversight was in 1991 there was 6 no ability for oversight because our Chief Forensic 7 Pathologist wasn't interested. But that -- having -- to 8 be saying that, that's -- that's a speculation on my 9 part; I can't -- I can't give it with any definitive 10 authority. 11 MR. PETER WARDLE: All right. So, now 12 Dr. Chiasson's on the scene in 1994. 13 DR. JAMES CAIRNS: That's correct. 14 MR. PETER WARDLE: And, as I understand 15 it, within a year or two (2) he instigated a form -- a 16 limited form of review of autopsy reports, correct? 17 DR. JAMES CAIRNS: That's correct. 18 MR. PETER WARDLE: Okay. And I just want 19 to take you to that for one (1) moment. We're going to 20 turn up PFP129240, and it's in your binder, Dr. Cairns, 21 Volume V, Tab 16. 22 DR. JAMES CAIRNS: Thank you. 23 MR. PETER WARDLE: This is what I 24 understand to have been the -- what's been called the 25 "Check List Form."
1341 DR. JAMES CAIRNS: That's a correct 2 statement. 3 MR. PETER WARDLE: So -- just so that the 4 Commissioner understands, we're looking here at a check 5 list form for Jenna. Correct? 6 DR. JAMES CAIRNS: Correct. 7 MR. PETER WARDLE: And this one (1) is 8 done -- is dated September 15th, 1997. It's a memo to 9 the Regional Coroner, and it has a review completed and 10 then a check mark beside it. 11 DR. JAMES CAIRNS: That's correct. 12 MR. PETER WARDLE: Okay. And, as I 13 understand it, without going into the background or the 14 evidence, this was simply a paper review of the post- 15 mortem examination report. Correct? 16 DR. JAMES CAIRNS: That's correct. At 17 that time, it would not have included the histological 18 side -- slides being forwarded with it. Correct. 19 MR. PETER WARDLE: Nor did it include 20 photographs? 21 DR. JAMES CAIRNS: You're quite -- to the 22 best -- well let's -- I think it only included the 23 autopsy report, and nothing else. 24 MR. PETER WARDLE: Right. And is it 25 correct that we don't even know now whether this was done
1351 in every one (1) of Dr. Smith's cases in this period? 2 We simply don't know that from the records 3 that are available. 4 DR. JAMES CAIRNS: That's correct. 5 THE COMMISSIONER: When was it 6 introduced, Dr. Cairns? 7 DR. JAMES CAIRNS: I think it was, and 8 I'm sure, Commission, can -- I think it was 1995. 9 Dr. Chiasson started in 1994. 10 Familiarized himself with the system. And I think he -- 11 he did send out a memo, and perhaps somebody can help me. 12 He did send out a memo saying that he 13 wanted to review all autopsy reports, particularly if 14 they related to homicides. 15 MS. LINDA ROTHSTEIN: Mr. Commissioner, I 16 wish I could be more specific than I can. 17 Our chronology, which we prepared based on 18 a document not referenced, indicates that that began in 19 '96, but we will certainly try and be more specific as we 20 go forward. 21 THE COMMISSIONER: Do you recall, at 22 least, Dr. Cairns, a memo that was circulated to whom? 23 To all those doing autopsy reports? 24 DR. JAMES CAIRNS: To -- to the -- to the 25 pathologists, and probably to the Regional Supervising
1361 Coroners, because the autopsies from the pathologists 2 would be going to them as well. 3 THE COMMISSIONER: And I am sure we will 4 hear this from Dr. Chiasson, but was it your 5 understanding that the result of this was his paper 6 review of what autopsy reports? Criminally suspicious 7 ones? All infants? 8 DR. JAMES CAIRNS: I -- my recollection 9 is it would be of homicide or criminally suspicious ones. 10 It -- it was later broadened to include 11 any case where the death was going to go to inquest. 12 So the focus, initially, was on those 13 autopsies that may be pivotal in significant aspects, 14 such as trials or inquests. 15 THE COMMISSIONER: Whether children or 16 not? 17 DR. JAMES CAIRNS: Whether children or 18 not, correct. 19 20 CONTINUED BY MR. PETER WARDLE: 21 MR. PETER WARDLE: Now, Dr. Chiasson, at 22 the time, he had started his formal training in -- in 23 forensic pathology in 1991. Correct? 24 DR. JAMES CAIRNS: Correct. 25 MR. PETER WARDLE: That was when he went
1371 to Baltimore and did the program there? 2 DR. JAMES CAIRNS: That's right. 3 MR. PETER WARDLE: Okay. So in 1996 or 4 1997, he would have had approximately six (6) years 5 experience as a forensic pathologist. Correct? 6 DR. JAMES CAIRNS: That's correct. 7 MR. PETER WARDLE: And Dr. Smith, at that 8 time, would have had how much experience? 9 DR. JAMES CAIRNS: He would have had 10 since 1981 onwards. If you look at about when he started 11 to do autopsies for us. 12 MR. PETER WARDLE: So it may not have 13 been the most effective means of oversight to have Dr. 14 Chiasson --I'm not -- I'm not, by the way, intending to 15 say anything pejorative about Dr. Chiasson -- 16 DR. JAMES CAIRNS: I understand. 17 MR. PETER WARDLE: -- but it may not have 18 been the most effective oversight to have a more junior 19 forensic pathologist doing a paper review of the "great 20 man's" cases. If I can put it that way. 21 DR. JAMES CAIRNS: I understand. I also, 22 for the same reason, feel that Dr. Chiasson, given the 23 very thing you just said, that we have got this "great 24 man," that he -- I would not be surprised, but he may 25 indicate that he was more concerned about reviewing the
1381 quality of autopsies on other pathologists who were not 2 at -- that esteemed because he was trying to develop 3 fully-trained forensic pathologists. And I would not be 4 surprised if his focus was more directed there, and say, 5 Well, I need to spend less time on this guy, he's already 6 a guru. Now, that's my interpretation. Dr. Chiasson can 7 speak for himself. 8 MR. PETER WARDLE: That's fair enough. 9 And -- and I -- I think we could add to that the point 10 that Dr. Chiasson was trying to get his arms around all 11 the people who did pathology in the province in this way. 12 And so Dr. Smith would not have been the focus of his 13 attention. 14 DR. JAMES CAIRNS: I think that's fair, 15 and I think also, at that time, he probably would have 16 felt that Dr. Smith's knowledge of pediatric pathology 17 was much greater than his. 18 MR. PETER WARDLE: Now, let's just go 19 back then briefly to the Nicholas case. March of '99, 20 we've already covered that Mary Case delivers her report, 21 and you knew, I take it, at that point that the 22 Children's Aid case against the family collapsed. 23 DR. JAMES CAIRNS: I did. 24 MR. PETER WARDLE: The Children's Aid 25 Society had, in fact, to write a letter of regret to the
1391 family. 2 DR. JAMES CAIRNS: I'm aware of that 3 also. 4 MR. PETER WARDLE: And Mr. Gagnon, the 5 grandfather, commenced a number of efforts to obtain what 6 he thought was redress, including making complaints about 7 Dr. Smith, about you, and others, correct. 8 DR. JAMES CAIRNS: That's correct. 9 MR. PETER WARDLE: Okay. And ultimately, 10 through a long torturous process that I'm not going to 11 describe here, he ended up with the ombudsman of Ontario, 12 right? 13 DR. JAMES CAIRNS: Correct. 14 MR. PETER WARDLE: And I just want to 15 canvass that quickly with you because you're aware that 16 in dealing with the ombudsman, Dr. Young represented that 17 there had been a number of changes made in your office as 18 a result of that case, correct? 19 DR. JAMES CAIRNS: Correct. 20 MR. PETER WARDLE: So if we could just 21 turn up the Nicholas report at Volume II, Tab 12. 22 COMMISSIONER STEPHEN GOUDGE: Of the 23 white volume. 24 DR. JAMES CAIRNS: Is this the overview? 25 MR. PETER WARDLE: Yes.
1401 DR. JAMES CAIRNS: In another few days, 2 I'll know which we're talking about. Hopefully, that 3 won't be necessary. 4 5 CONTINUED BY MR. PETER WARDLE: 6 MR. PETER WARDLE: It's more that I'll 7 have to know that in another few days, Dr. Cairns. 8 DR. JAMES CAIRNS: Tab, please? 9 MR. PETER WARDLE: Tab 12. 10 DR. JAMES CAIRNS: Thank you. Yes, I've 11 got it. 12 MR. PETER WARDLE: I'll ask you to turn 13 to paragraph 198. In my copy, it's on page 73, but I may 14 be out by a page. 15 MS. LINDA ROTHSTEIN: 72? 16 DR. JAMES CAIRNS: I've got that. 17 18 CONTINUED BY MR. WARDLE: 19 MR. PETER WARDLE: Page 72. 20 DR. JAMES CAIRNS: Yes, I've got that. 21 MR. PETER WARDLE: Now, you and Dr. Young 22 would have had a number of discussions about the Nicholas 23 case before Dr. Young sent in his report to the 24 ombudsman, correct? 25 DR. JAMES CAIRNS: That's a fair
1411 statement. 2 MR. PETER WARDLE: Okay. So one (1) of 3 the things I just want to go through quickly is what Dr. 4 Young indicated was going to happen or had happened. And 5 first of all, there's item A) Write a written letter of 6 regret to the family, which I understand was done. 7 And then I just want to take you to items 8 B through F. So first it says: 9 "Reissue within a month an amended 10 guideline for pathologists requiring 11 them to tai -- obtain written 12 consultation reports whenever important 13 medical advice is relied upon to form 14 any significant opinion. 15 DR. JAMES CAIRNS: Yes. 16 MR. PETER WARDLE: Now, was that 17 specifically in relation to this case or was that in 18 relation to more than one (1) case? 19 DR. JAMES CAIRNS: It was particularly in 20 relationship to this case in that Dr. Smith had referred 21 to, shall we say, corridor of consultations for which 22 there was no written report. It would also have applied 23 to other pathologists who may have said to the 24 radiologist, What do you think of this, the radiologist 25 would say, It's a fracture.
1421 And it would appear in their report as if 2 that was theirs. And it was to clearly indicate if this 3 is assistance you've got from another professional that 4 that other professional should have it in writing and 5 that corridor consultations should stop. 6 MR. PETER WARDLE: And the corridor 7 consultation in this case was with Dr. Babyn, is that 8 right regarding the -- the split skill sutures? 9 DR. JAMES CAIRNS: It was with Dr. Babyn, 10 although that's not quite right in that Dr. Babyn did 11 write a written report. It may have been with a doctor, 12 and I think her name was Jay, who was a neuropathologist. 13 MR. PETER WARDLE: Right. 14 DR. JAMES CAIRNS: And he had indicated 15 that he discussed the case with Dr. Jay in a corridor of 16 consultation, and she indicated that she had recollection 17 of it at all. 18 MR. PETER WARDLE: And then item C) 19 "Develop a policy within six (6) months 20 setting out when it may be appropriate 21 to seek independent medical advice." 22 Now, I've looked at that policy and I -- I 23 must say, I have some trouble understanding how it would 24 be relevant to the -- to the Nicholas situation. 25 DR. JAMES CAIRNS: I can --
1431 MR. PETER WARDLE: Do you want to turn it 2 up because we can look at it -- 3 DR. JAMES CAIRNS: Yeah, it might be 4 helpful, yeah. I sometimes can read between the lines in 5 Dr. Young's memos. 6 MR. PETER WARDLE: Well, maybe this a 7 memo where you have to read between the lines. It's in 8 the Coroner's Manual and I have it as being PFP057724. 9 The date is November 19, 2001. 10 11 (BRIEF PAUSE) 12 13 DR. JAMES CAIRNS: Can you give me that 14 number again? 15 MR. PETER WARDLE: It's 057724 and the 16 memo was dated -- 17 DR. JAMES CAIRNS: 057724? 18 MR. PETER WARDLE: 24 -- November 19, 19 2001. 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER STEPHEN GOUDGE: I'm having 24 trouble finding it, I confess. 25 MR. PETER WARDLE: We're all looking for
1441 it. 2 COMMISSIONER STEPHEN GOUDGE: Yes, why 3 don't we -- this will save us all -- 4 MR. PETER WARDLE: Perfect time. 5 COMMISSIONER STEPHEN GOUDGE: -- we'll 6 break now until 2 o'clock, and it will be on your desk 7 when you come back. 8 DR. JAMES CAIRNS: Thank you, 9 Commissioner. 10 11 --- Upon recessing at 12:41 p.m. 12 --- Upon resuming at 2:00 p.m. 13 14 THE REGISTRAR: Please be seated. 15 COMMISSIONER STEPHEN GOUDGE: Mr. 16 Wardle...? 17 18 CONTINUED BY MR. PETER WARDLE: 19 MR. PETER WARDLE: So, Dr. Cairns, I 20 think we now have it that I have the same document you're 21 looking, so I'm going to ask you just to place this in 22 context. We were looking at the Nicholas report, 23 paragraph 198, and I had asked you to look at some 24 documents in the Coroner's Manual, and I want you to just 25 turn up page 141, which entitled "Use of Medical Expert
1451 Services" and it's Memorandum 0110. 2 DR. JAMES CAIRNS: Correct. 3 MR. PETER WARDLE: And I understand how 4 this may be a very useful memorandum for all sort of 5 reasons, but when I read it, it really talks about the 6 assistance that the coroner may need to get a medical 7 expert to advance an investigation. 8 It doesn't appear to deal with, you know, 9 giving guidance to pathologists, per se. 10 DR. JAMES CAIRNS: With regard, it -- 11 it's -- yes, it's the use of experts that, first of all, 12 if the coroner requires an expert to answer the five (5) 13 questions then it has to be approved by somebody in the 14 Chief Coroner's Office for financial reasons, and it's 15 indicating such expertise require the approval of the 16 Chief Coroner or the Deputy Chief of the Regional 17 Supervising Coroner. 18 Medical experts are often called upon to 19 assist a coroner in an investigation and I think what 20 they're -- he's relating to there is, if we have a 21 complicated case, for example, we may need a 22 cardiologist, or a rheumatologist, or something of that 23 nature. And also, odontologists, medical specialists, 24 and sub-specialty in pathology, particularly 25 neuropathologists, are cardiac pathologists.
1461 So if someone has done an autopsy and they 2 -- that individual is not an expert in neuropathology, it 3 will be an essential to get a consultation from a 4 neuropathologist, and similarly, if it is a complex 5 cardiac case, then instead of that pathologist doing a 6 cardiac examination, it will be referred to a -- a 7 cardiopathologist. 8 MR. PETER WARDLE: Right. So what I'm -- 9 what I'm trying to get at is I understand the usefulness 10 of this memo, but how does it arise out of what took 11 place in the Nicholas case? 12 DR. JAMES CAIRNS: It is not clearly 13 apparent to me. What took place in -- in the Nicholas 14 case, as far as I'm concerned, is when the coroner has 15 got two (2) conflicting opinions, what should be the way 16 of addressing those in terms of getting the equivalent of 17 a neutral party, like Mary Case. 18 MR. PETER WARDLE: All right. And that 19 was really my point with respect to the rest of the 20 paragraph in the Nicholas overview report. You know if 21 we go through it and -- and we're now at B -- sorry, C, 22 on -- on the next page. 23 Just let the Commissioner get his copy of 24 -- it's Tab -- Volume II, Tab 12, Commissioner. 25 COMMISSIONER STEPHEN GOUDGE: Yes, I've
1471 got it, thanks. 2 3 CONTINUED BY MR. PETER WARDLE: 4 MR. PETER WARDLE: Page 73. So, we have 5 a list in Dr. Young's letter of the various policies. 6 This one (1) doesn't seem to be very apt. The next one 7 (1) on the list, which is Item D, if again I can just 8 turn this up very briefly. 9 This is in the manual at page 442. 10 11 (BRIEF PAUSE) 12 13 DR. JAMES CAIRNS: Is that the heading 14 "Role of the Office of the Chief Coroner in Cases 15 Involving Child Protection Issues"? 16 MR. PETER WARDLE: Correct. 17 DR. JAMES CAIRNS: Thank you. 18 MR. PETER WARDLE: And -- and again, if 19 you read this document through, there's some very useful 20 information in it about, you know, the interaction 21 between coroners and Children's Aid Societies, but it -- 22 it doesn't appear to have any direct relevance to the 23 Nicholas case. 24 DR. JAMES CAIRNS: Can you just give me a 25 second here to refer to it, please.
1481 MR. PETER WARDLE: I -- I can, of course, 2 sir. 3 DR. JAMES CAIRNS: Thank you. 4 5 (BRIEF PAUSE) 6 7 DR. JAMES CAIRNS: I think from what 8 we've been talking about in Nicholas' case is my signing 9 an affidavit which, without intention, mislead the 10 Children's Aid Society into what my expertise was or 11 wasn't, and I think you are probably of the opinion that 12 that's what should have been reflected in -- in this 13 memo. 14 It certainly is not reflected in this 15 memo. 16 MR. PETER WARDLE: All right. And then 17 going on to the next item in Dr. Young's letter, which 18 again is back to the Nicholas report. 19 You'll see item E) was: 20 "Undertake through the Solicitor 21 General an examination of the 22 feasibility of establishing an 23 independent complaint handling 24 mechanism." 25 We know, I take it, that that didn't
1491 happen. 2 DR. JAMES CAIRNS: To the best of my 3 understanding, it did not happen, but I can't give you 4 any information as to why it did or didn't. It wasn't 5 something that I was involved with. 6 MR. PETER WARDLE: Okay. And then 7 finally, if you look at item F), it refers to a number of 8 policies, including the ones we've gone through, and then 9 it refers to this memorandum, Forensic Pathology 10 Pitfalls. 11 And Forensic Pathology Pitfalls is in the 12 manual at page 124. 13 14 (BRIEF PAUSE) 15 16 DR. JAMES CAIRNS: I find that. 17 MR. PETER WARDLE: And just looking 18 quickly at it, if you just look at the -- at the -- the 19 headings, you know -- Preliminary Cause of Death 20 Opinions; Limits of Expertise; Consultations: Formal 21 versus Informal; Report Turn Around Times; Storage of 22 Autopsy Specimens. 23 Clearly, Consultations: Formal or 24 Informal, is a lesson that came out of the Nicholas' 25 case. Correct?
1501 DR. JAMES CAIRNS: Correct. 2 MR. PETER WARDLE: But the remainder of 3 the memo really deals with other matters that don't arise 4 in that case. Is that not fair? 5 DR. JAMES CAIRNS: Once again, if you'll 6 just give me a few seconds, I'll be able to confirm that. 7 8 (BRIEF PAUSE) 9 10 DR. JAMES CAIRNS: The way I read most of 11 that memo is cautioning pathologists not to go any 12 further than their own speciality, and that would include 13 not interpreting x-rays; not interpreting toxicology; not 14 giving opinions that are of a clinical/medical nature; 15 that stick pure and simply to the field that they are 16 knowledgeable in. 17 MR. PETER WARDLE: And I don't know if 18 you can answer this, but the date of this memo was April 19 12, 1999. That's approximately a month after Mary Case 20 delivered her opinion in the Nicholas case. 21 Would I be right to say that this memo was 22 probably in production before that report was received 23 and reviewed by your office? 24 DR. JAMES CAIRNS: I can't give you a 25 definitive answer on that. But it -- it is certain -- it
1511 -- what it -- it is dealing with issues that had cropped 2 up; where it was the feeling that one (1) expert cannot 3 get on the stand and talk for a series of seven (7) or 4 eight (8) experts. 5 And -- and I don't know if it's in 6 relation to this memo, but certainly, I was involved 7 around that time; that where the child had died of a head 8 injury, and there was a feeling that that head injury may 9 represent the Shaken Baby Syndrome; taking into 10 consideration that that -- that is a debatable issue. 11 That instead of having a pathologist say 12 that, that in future, you would -- if the child been 13 brought in alive -- you would want the emergency 14 physician to give evidence; you'd want the intensive 15 medical people to give evidence in terms of were there 16 other diseases present or not; you'd want somebody from 17 the SCAN Team to give evidence. 18 You would want the pathologist who did the 19 autopsy to give evidence, the neuropathologist to give 20 evidence, the radiologist to give evidence and the 21 neuroradiologist to give evidence. 22 In other words, sticking strictly to the 23 confines that -- now it does mean seven (7) or eight (8) 24 or nine (9) people -- but that was, do not -- whether 25 you're doing it because of speeding up the trial -- do
1521 not move anywhere outside your area of expertise. 2 MR. PETER WARDLE: So when you said a 3 minute ago that, you know, one (1) of the issues arising 4 out of Nichol -- the Nicholas case was, you know, what 5 does the coroner do faced with conflicting opinions? 6 There really wasn't anything coming out of 7 that case in way of formal policy of the Coroner's Office 8 to deal with that specific issue; is that right? 9 DR. JAMES CAIRNS: Unless you can address 10 me to it, I'll agree with you. 11 MR. PETER WARDLE: I'm probably not the 12 most familiar person with the Coroner's Manual, Dr. 13 Cairns, from our experience this morning, but I haven't 14 been able to find anything. 15 DR. JAMES CAIRNS: I can tell you that 16 some of the Commission Counsel are more familiar with 17 everything to do with our office, then -- then we are. 18 Particularly Rob, and I'm sure if it's there, Rob would 19 have found it for us by now. 20 MR. PETER WARDLE: So -- so coming back 21 to my point really, which was, you know, we have this 22 case, which I think you've agreed is quite an important 23 one (1), and we -- we don't really see anything in the 24 way of what I call a "lesson's learned" document from the 25 Coroner's Office?
1531 DR. JAMES CAIRNS: I accept that. 2 MR. PETER WARDLE: Okay. And I want to 3 then take you to Sharon's case, because there's a -- a 4 time overlap here that in -- that I would suggest to you 5 is quite important. 6 January 1999 is when your office made the 7 decision to hire Mary Case in the Nicholas case. That's 8 in the overview report. I'm just going to put that to 9 you. 10 DR. JAMES CAIRNS: Yes. 11 MR. PETER WARDLE: And February 1999, is 12 when you and Dr. Young are at this international 13 conference in New York, and you're approached by some of 14 your colleagues? 15 DR. JAMES CAIRNS: Correct. 16 MR. PETER WARDLE: The so-called "heavy 17 hitters" as I think you described them the other day? 18 DR. JAMES CAIRNS: That's correct. 19 MR. PETER WARDLE: And as Dr. Case was a 20 heavy hitter, correct? 21 DR. JAMES CAIRNS: Yes. 22 MR. PETER WARDLE: And -- 23 DR. JAMES CAIRNS: She may not have been 24 as heavy a biller, but she was certainly a heavy hitter. 25 MR. PETER WARDLE: She was a heavy hitter
1541 and these people were heavy hitters, and they were 2 raising some alarm bells in about what was going on in a 3 second case in your jurisdiction? 4 DR. JAMES CAIRNS: Very much so. 5 MR. PETER WARDLE: And a second case 6 involving Dr. Charles Smith? Correct? 7 DR. JAMES CAIRNS: Correct, yes. 8 MR. PETER WARDLE: Okay. And just to 9 give you a little bit of a background, and this is all in 10 the record. This is a girl that dies on June 12th, 1997, 11 and the autopsy is done on June 13th and 15th, 1997. 12 And you said yesterday, as I understand 13 it, or maybe the day before, that you were at a meeting a 14 reasonable time period after the autopsy, and this is the 15 -- the meeting at -- I assume it's at the board room at 16 the Office of the Chief Coroner? 17 DR. JAMES CAIRNS: It was, in the 18 pathology board room in the basement, yes. 19 MR. PETER WARDLE: All right. And are 20 you able to say that was likely some weeks or months 21 after the initial autopsy? 22 DR. JAMES CAIRNS: It was, at least, 23 weeks afterwards, and I -- I would like to help you 24 further, whether it was a month or two (2) months. But 25 it was certainly in a period well preceding the
1551 preliminary hearing. 2 MR. PETER WARDLE: Would it be right -- 3 would I be right in assuming that it was after Ms. 4 Reynolds was charged? 5 DR. JAMES CAIRNS: Yes, you would. 6 MR. PETER WARDLE: And so from the 7 material we have, this would be after the police had some 8 evidence of the involvement of a dog at the scene, 9 correct? 10 DR. JAMES CAIRNS: Yes. 11 MR. PETER WARDLE: And I'm not going to 12 take you through this in any detail because My Friend, 13 Mr. Campbell, asked some questions about it this morning 14 -- about the substance of this meeting, but you told us 15 the other day that you thought of this as a collective 16 exercise in the sense that if people had made mistakes, 17 they had made so collectively as a group, correct? 18 DR. JAMES CAIRNS: I stated that because 19 at that meeting it was brought up, Look, could these be 20 dog bites? And there were a number of people; Mr. 21 Blenkinsop, Dr. Smith, Dr. Wood, Dr. Chiasson, and Dr. 22 Queen, who -- in terms of pathology, and Mr. Blenkinsop 23 had the necessary background. 24 I was there as a sort of an overseer of 25 the case, and as a result of the opinions that were
1561 expressed, I did not come away with the conclusion that 2 anybody was thinking significantly that these were 3 anything other than -- and other than knife wounds, or 4 scissor wounds, or whatever you want to call them. 5 MR. PETER WARDLE: Now, I take it that at 6 that meeting, no one reviewed scene photographs, for 7 example? 8 DR. JAMES CAIRNS: The only thing that 9 were reviewed, to the best of my recollection, were 10 autopsy photographs. 11 MR. PETER WARDLE: All right. And, in 12 fact, Dr. Woods, when he gave his opinion; his first 13 opinion was based exclusively on autopsy photographs, 14 correct? 15 DR. JAMES CAIRNS: That certainly -- I -- 16 I would not disagree with you. That would be my 17 recollection also. 18 MR. PETER WARDLE: All right. And did 19 you know, at that time, that Dr. Smith had told the 20 police verbally, within a short period of time after the 21 autopsy, that the injuries were definitely not caused by 22 a domestic or wild animal? 23 DR. JAMES CAIRNS: I have no recollection 24 of that specifically. 25 MR. PETER WARDLE: And did you have any
1571 knowledge, at that time, that the police had relied on 2 that information in charging Ms. Reynolds? 3 DR. JAMES CAIRNS: I do know that the 4 police were relying on the pathological evidence for 5 laying the charges. 6 MR. PETER WARDLE: And can we agree that 7 whatever took place at this meeting -- and, of course, as 8 you discussed with My Friend, there's no documentary 9 evidence of this meeting, correct? 10 DR. JAMES CAIRNS: That's correct. 11 MR. PETER WARDLE: If Dr. Smith had 12 previously told the police that the wounds were not 13 caused by an animal, and if this woman had been charged - 14 - and you'll recall the media attention to this case, 15 correct? 16 DR. JAMES CAIRNS: I certainly do, yes. 17 MR. PETER WARDLE: It was most unlikely, 18 I suggest to you, that he would have been in a position 19 to change his mind at a meeting of his colleagues a few 20 weeks or months later? 21 DR. JAMES CAIRNS: He may not change his 22 mind, but I would hope if his colleagues had a different 23 opinion that they would be strong enough to indicate that 24 they had a different opinion. 25 MR. PETER WARDLE: And again, at this
1581 time, although Dr. Chiasson was at this meeting, as I 2 understand it, is that right -- 3 DR. JAMES CAIRNS: That's correct. 4 MR. PETER WARDLE: -- he was both junior 5 to Dr. Smith in terms of his experience, correct? 6 DR. JAMES CAIRNS: In terms of his years 7 doing for -- pediatric forensic autopsies, yes. 8 MR. PETER WARDLE: And he had not been at 9 the original autopsy, correct? 10 DR. JAMES CAIRNS: That is correct. 11 MR. PETER WARDLE: When the decision was 12 made in 1999 to have a second autopsy done of this case 13 that, at that point, was developing a high profile, who 14 made the decision about who should conduct the autopsy? 15 DR. JAMES CAIRNS: The decision -- when 16 there was going to be an exhumation -- the decision was 17 made that that autopsy should be done by our chief 18 forensic pathologist who was Dr. Chiasson. 19 MR. PETER WARDLE: Was there any 20 consideration given -- at that time given that Dr. 21 Chiasson had been involved, in the way you described, and 22 given his relationship with Dr. Smith and years of 23 experience at getting someone from another jurisdiction 24 to do the autopsy. 25 DR. JAMES CAIRNS: There wasn't a main --
1591 a main reason for that is -- my recollection is that Dr. 2 Ferris was also going to be there from a different 3 jurisdiction -- and well-recognized -- and that Dr. 4 Dorian, a forensic dentist, was -- was going to be there. 5 I would agree with you entirely that if, 6 at that time, there were no defence experts available at 7 all, then it would have been appropriate to have found 8 someone to do it by themselves. 9 Although I think the best way to handle 10 this was the way that it was handled, and I think 11 Professor Milroy had talked a little bit about that. In 12 other words, double doctoring; having somebody there from 13 both sides, so in that case I -- I had no concerns at all 14 about Dr. Chiasson doing the autopsy because I felt all 15 the safeguards were -- were -- were there, and for that 16 reason he was fulfilling his responsibility as the Chief 17 Forensic Pathologist. 18 MR. PETER WARDLE: Well, I guess what I 19 was getting at, Dr. Cairns, is the -- you made a comment 20 yesterday that -- I think, My Friend was asking you about 21 the withdrawal of the charges in January of 2001 in 22 Sharon's case and Tyrell's case. 23 And your comment about Sharon's case was: 24 "It wasn't a surprise because that one 25 (1) could have been made at the end of
1601 1999." 2 Do you recall saying that? 3 DR. JAMES CAIRNS: I recall that, yes. 4 MR. PETER WARDLE: And isn't it fair to 5 say that that didn't happen, partly because Dr. 6 Chiasson's report could not exclude the possibility that 7 some of the injuries were intentionally inflicted? 8 DR. JAMES CAIRNS: There's a difference 9 between could not exclude; you need more than a negative 10 issue and my recollection -- but please correct me if I'm 11 wrong -- is that was in relationship to some wounds that 12 were on the chest that appeared at the first autopsy, but 13 could not be reproduced at the second autopsy because of 14 the -- the decomposition that had occurred. 15 MR. PETER WARDLE: Well, let me assist 16 your memory a little bit. There were some marks on the 17 skull at the second autopsy that were controversial, 18 correct? 19 DR. JAMES CAIRNS: Yeah, that's correct. 20 There were marks on that, yeah. 21 MR. PETER WARDLE: And there were 22 different views expressed by those who had attended about 23 those marks, correct? 24 DR. JAMES CAIRNS: That's correct. 25 MR. PETER WARDLE: And Dr. Chiasson did
1611 not feel comfortable excluding them completely as having 2 been caused by a human, if I can put it that way, 3 correct? 4 DR. JAMES CAIRNS: I think probably more 5 having been caused by a sharp instrument. 6 MR. PETER WARDLE: Correct. And -- and 7 that led, eventually, for some of Sharon's remains to be 8 sent to the United States for examine -- examination by a 9 forensic anthropologist, correct. 10 DR. JAMES CAIRNS: I think it was a Dr. 11 Symes. 12 MR. PETER WARDLE: Correct. 13 DR. JAMES CAIRNS: And, yes, there was 14 still some debate among some people with regard to -- 15 were the injuries on the skull consistent with a sharp 16 instrument or not -- and that's why it went to Dr. Symes. 17 MR. PETER WARDLE: And is it fair to say 18 today that all of that controversy could have been 19 avoided completely had the appropriate conclusions been 20 reached at the first autopsy at the very beginning, given 21 what we now know about this case? 22 DR. JAMES CAIRNS: If the first autopsy 23 had indicated that the death was due to dog bites, that 24 would have been the end of it. 25 MR. PETER WARDLE: And we know from the -
1621 - the overview report that eventually -- after much 2 prodding -- Dr. Smith, eventually, completely changed his 3 opinion in this case, isn't that right? 4 DR. JAMES CAIRNS: Yes, with my memory, I 5 seem to recollect he said most of these; I don't know if 6 he said absolutely all. I think his comment was: 7 "I now agree that most of the injuries 8 I examined were dog bites." 9 MR. PETER WARDLE: In fact, there's a 10 little bit of a narrative and My Friend, Ms. Rothstein, 11 took you through part of it in trying to get Dr. Smith to 12 write a second report. You went through that with her 13 the other day, correct? 14 DR. JAMES CAIRNS: I did. 15 MR. PETER WARDLE: But eventually when 16 the charge is withdrawn by the Crown, and maybe I can 17 just pull this right out of the Sharon overview report, 18 which is at Volume II, Tab 13; that's PFP144453. And if 19 we turn to paragraph -- maybe I'll just start with 20 paragraph 321, just to give you a context. 21 22 (BRIEF PAUSE) 23 24 DR. JAMES CAIRNS: I have that paragraph 25 now.
1631 MR. PETER WARDLE: And this re -- 2 reflects a conversation with you and the Crown. 3 You're becoming sort of dragged back into 4 this case, and at this point, according to these notes, 5 you're indicating that you were quite sceptical of Dr. 6 Smith's conclusions. Do you see that? 7 DR. JAMES CAIRNS: That's correct. 8 MR. PETER WARDLE: And then going to 9 paragraph 327, this is the statement that was made by the 10 Crown when the charges were withdrawn, and I take it 11 you're familiar with this document? 12 DR. JAMES CAIRNS: I have read it in the 13 past, yes. 14 MR. PETER WARDLE: This -- this is the 15 document that caused much consternation at the time. 16 I understand that there was some 17 negotiation about the final wording of this document. Do 18 you recall that? 19 DR. JAMES CAIRNS: Not with me. 20 MR. PETER WARDLE: Not with your eyes? 21 DR. JAMES CAIRNS: Sure. Not -- no. Not 22 with me personally. 23 MR. PETER WARDLE: Okay. I won't take 24 you through all of it, but if you look over at the final 25 page, which would be page 148.
1641 DR. JAMES CAIRNS: I'm there. 2 MR. PETER WARDLE: I'm just waiting for 3 the screen to pull it up. You'll see: 4 "As a result of this new information 5 from Dr. Symes..." 6 That's the forensic anthropologist, 7 correct? 8 DR. JAMES CAIRNS: Yes. 9 MR. PETER WARDLE: "... Mr. Bradley then 10 spoke to ju -- Dr. Charles Smith in 11 early January 2001. Dr. Smith's 12 original position had been unequivocal. 13 None of the wounds were dog bites. He 14 testified to this effect at the 15 preliminary hearing. After the second 16 post-mortem, he changed his opinion to 17 indicate that some of the wounds were 18 dog bites, and some were not dog bites. 19 When he was presented with the new 20 information from Dr. Symes, Dr. Smith 21 then stated that he deferred to the 22 opinions of the other experts. Dr. 23 Smith also now says that there is a 24 possibility that even these other 25 questionable wounds could possibly have
1651 been caused by dog bites." 2 So in effect, Dr. Smith had completely 3 reversed his position, and it was at that point that the 4 Crown made the decision to withdraw the charge. Correct? 5 DR. JAMES CAIRNS: Correct. 6 MR. PETER WARDLE: And you and Dr. Young 7 saw this endorsement? You read it at the time? 8 DR. JAMES CAIRNS: I did. 9 MR. PETER WARDLE: And is it fair to say 10 that anyone who read it, even anyone who didn't have any 11 knowledge of Dr. Charles Smith, would have had concerns 12 about his involvement in this case? 13 DR. JAMES CAIRNS: Correct. 14 MR. PETER WARDLE: And is it also fair to 15 say that there was a pressing need at that time for some 16 form of review of this case, now that the criminal 17 process had concluded? 18 DR. JAMES CAIRNS: In terms of the fact 19 that it was felt that there were a number of people who 20 had agreed with Dr. Smith's findings, there was a review 21 that in the future, if it was an issue of dog bites, that 22 it would have to be ensured that the appropriate experts 23 were involved from the very beginning. 24 MR. PETER WARDLE: But I think with 25 respect -- you know, come back to a question the
1661 Commissioner asked you the other day, which was, you 2 know, weren't you concerned that all the members of your 3 team appear to have got it wrong in such a dramatic way? 4 And I think your answer was you were 5 concerned. 6 DR. JAMES CAIRNS: I was concerned, yes. 7 MR. PETER WARDLE: All right. So 8 wouldn't that have lead, in the minds of yourself and Dr. 9 Young, to some exploration of whether an independent 10 review of this case would make sense, if only from a 11 "lessons learned" perspective? 12 DR. JAMES CAIRNS: I probably felt that 13 the exhumation had been the independent review. 14 MR. PETER WARDLE: So you didn't think 15 there was a need at this point for an independent review? 16 DR. JAMES CAIRNS: I felt an independent 17 review had been done, insofar, as all the experts -- 18 meaning Dr. Ferris, and the odontologist, et cetera, had 19 done that independent review. 20 MR. PETER WARDLE: This -- this is what 21 is somewhat confusing, Dr. Cairns. After this comes out, 22 and we have the Tyrell case as well, of course, Dr. Young 23 then tells the media that there's going to be a review of 24 Sharon's case. 25 DR. JAMES CAIRNS: That's correct.
1671 MR. PETER WARDLE: And, you know, I don't 2 want to take you to it in great detail, but maybe we 3 could just turn up one (1) document, which is the Whig- 4 Standard article. 5 This is at PFP043561. 6 7 (BRIEF PAUSE) 8 9 DR. JAMES CAIRNS: Can you give me a tab 10 number? 11 MR. PETER WARDLE: I can if you give me a 12 minute. 13 14 (BRIEF PAUSE) 15 16 DR. JAMES CAIRNS: I have that now. 17 MR. PETER WARDLE: So, you know, here we 18 are in late January 2001, and if you -- if you scroll 19 down to the -- about the third of the way down, you'll 20 see a reference to Dr. Young. 21 And -- and first Dr. Young says, he has 22 completed an investigation into the disappearance of the 23 evidence. So -- so aside from what we've talked about, 24 there's another issue which is the cast which is 25 misplaced and x-rays, correct?
1681 DR. JAMES CAIRNS: Correct. 2 MR. PETER WARDLE: And according to this 3 it says -- and of course to be fair to Dr. Young, we 4 don't know if he was misquoted, but it says: 5 "Young said he has completed an 6 investigation into the disappearance of 7 the evidence, and he has ordered 8 another probe that will focus on 9 Smith's initial conclusions about how 10 the child died." 11 And just taking that sentence in two (2) 12 parts, do you know what the investigation was about the 13 missing evidence? 14 DR. JAMES CAIRNS: The missing evidence 15 was to see if it could be found in Dr. Smith's office. 16 MR. PETER WARDLE: All right. But aside 17 from that, I mean, there's not a document in the database 18 dealing with this internal investigation, correct? 19 DR. JAMES CAIRNS: With regard to the 20 missing -- 21 MR. PETER WARDLE: The missing evidence. 22 DR. JAMES CAIRNS: The missing evidence - 23 - no, there isn't. 24 MR. PETER WARDLE: Okay. 25 DR. JAMES CAIRNS: The missing evidence
1691 was not considered to be of great significance one (1) 2 way or the other. 3 MR. PETER WARDLE: Is this any more then 4 Dr. Young phoning up Dr. Smith and saying, Charles, what 5 happened to the cast, and getting an explanation over the 6 phone? 7 DR. JAMES CAIRNS: You'll have to ask Dr. 8 Young that. 9 MR. PETER WARDLE: All right. But you're 10 not aware of any documents that deal with this 11 investigation? 12 DR. JAMES CAIRNS: I'm not aware of any 13 documents with regard to the loss of the cast of the 14 skull or the x-rays. 15 MR. PETER WARDLE: And then down at the 16 bottom of the page you'll see it says: 17 "More important then the lost material, 18 Young maintains, is an independent 19 review of Smith's initial conclusions 20 that the girl was murdered and that a 21 dog did not attack her." 22 And then over the page: 23 "Whether Dr. Smith's view initially is 24 supportable is the purpose of having 25 the review."
1701 Now that's really consistent with what I 2 just put to you several minutes ago; that after you had a 3 second high profile case where something of this occurs, 4 it would have been natural for the Office of the Chief 5 Coroner to consider a review of this case? 6 DR. JAMES CAIRNS: And at that particular 7 time, Dr. Young had indicated there was going to be an 8 external review of Dr. Smith's work, and that would have 9 included the Reynold's Case. 10 And I don't want to put words in his 11 mouth, but my understanding is, that on legal advice, he 12 decided to stop the review as a result of that legal 13 advice. So I think it is accurate to say that at the 14 time those statements were made, it was agreed we were 15 going to have an external review of Dr. Smith's work 16 which was subsequently cancelled. 17 And that external review would have 18 included the review of the initial handling of this case. 19 MR. PETER WARDLE: And you told Ms. 20 Rothstein the other day, that you became aware that the 21 external review was cancelled in late February or early 22 March, correct? 23 DR. JAMES CAIRNS: To the best of my 24 recollection, correct. 25 MR. PETER WARDLE: All right. Let's just
1711 look at a couple more documents along the same vein, if I 2 may. First one is PFP115722. See, I don't need to do 3 this any more for myself. 4 MR. ROBERT CENTA: 115722. 5 MR. PETER WARDLE: Could be a glitch at 6 my end? 7 COMMISSIONER STEPHEN GOUDGE: It is 8 unlikely a glitch at Mr. Centa's end. 9 MR. PETER WARDLE: I understand that, but 10 I wonder if we could turn that up on the screen, for a 11 moment? So you had it up actually for a minute, 115722. 12 You can see now, we're in late February. Volume V, Tab 13 14, so -- 14 COMMISSIONER STEPHEN GOUDGE: I think it 15 is the same volume, Dr. Cairns. 16 DR. JAMES CAIRNS: Thank you, 17 Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Couple tabs 19 on it. Yes. 20 21 CONTINUED BY MR. PETER WARDLE: 22 MR. PETER WARDLE: Tab 14. And you'll 23 see it says -- and this is dated February 21st, 2001. 24 It's a briefing note for the Ministry. And you'll see it 25 says in the third bullet:
1721 "The coroner's office is continuing to 2 review this case." 3 DR. JAMES CAIRNS: Yes. 4 MR. PETER WARDLE: And then, if we go 5 over, and this hopefully will be at the next tab, it's 6 PFP115718, Volume IV, Tab 6. 7 DR. JAMES CAIRNS: I've got that. 8 MR. PETER WARDLE: So now we're at the 9 end of March which is after the period when you recall 10 being told that the external review had been cancelled. 11 And according to -- 12 DR. JAMES CAIRNS: No -- sorry, not 13 necessarily. I've given you a rough time of when I 14 thought -- 15 MR. PETER WARDLE: All right. 16 DR. JAMES CAIRNS: -- it was recalled, 17 so. 18 MR. PETER WARDLE: All right. But if you 19 look at this letter, it says -- this is a letter from Dr. 20 Young, March 30th, second paragraph: 21 "The review in question is only in 22 regard to two (2) specific cases that 23 Dr. Smith was involved in." 24 And I think, Dr. Cairns, you were trying 25 to tell me a minute ago that, in fact, the review was
1731 intended to be broader than that? 2 DR. JAMES CAIRNS: The initial external 3 review was to be broader than that, and I think that's 4 demonstrated by the efforts that Mr. Mainland, and the -- 5 the Homicide Bureau in Toronto, and Mr. McMahon's office 6 were in getting us appropriate cases. 7 I was never under the understanding that 8 the external review was going to be limited to two (2) 9 cases. 10 MR. PETER WARDLE: Well, let's -- let's 11 call a spade a spade here. When you look at all this 12 correspondence, doesn't there appear to be a fair amount 13 of obfuscation going on in terms of what the public -- 14 what lawyers who write letters, what people who read 15 these press releases, what they're being told about this 16 review? 17 DR. JAMES CAIRNS: I would have to direct 18 you to Dr. Young on that, because all of these comments 19 and letters are coming from Dr. Young. 20 MR. PETER WARDLE: Fair enough, but then 21 you get involved in this process directly, don't you? 22 DR. JAMES CAIRNS: I get involved in the 23 process to assist in collecting a -- the cases that would 24 be sent out for review. I think there was some 25 discussion -- we were enquiring of pathologists in New
1741 Zealand, Australia, whatever; and I also indicated to you 2 that there had been no sort of decision as to what was 3 being sent out. 4 We were collecting the cases. We were 5 looking for an appropriate individual or individuals to 6 do that, and at some stage there Dr. Young says, It's 7 off. 8 MR. PETER WARDLE: Right. And then you 9 become involved directly in the so-called internal 10 review. 11 DR. JAMES CAIRNS: The internal review 12 was already taking place in terms of pulling the cases 13 for the external review. 14 MR. PETER WARDLE: Fair enough. And I -- 15 I -- I am getting the chronology mixed up. During the 16 period we're talking about here, from January through to, 17 let's say, May, you were already engaged in pulling those 18 cases, correct? 19 DR. JAMES CAIRNS: That's correct. 20 MR. PETER WARDLE: But my point is 21 really, you know, you're saying that is for Dr. Young to 22 answer. You're the number 2 at this minist -- at this 23 office at the time, right? 24 DR. JAMES CAIRNS: That's correct. 25 MR. PETER WARDLE: You and Dr. Young --
1751 DR. JAMES CAIRNS: Well, I probably was 2 an equal number 2, but certainly in terms of years of 3 seniority, yes. 4 MR. PETER WARDLE: You were the point 5 person with Dr. Young on this issue. 6 DR. JAMES CAIRNS: That's correct. 7 MR. PETER WARDLE: All right, so you 8 would have been having regular dealings with Dr. Young 9 through this period. 10 DR. JAMES CAIRNS: I would. 11 MR. PETER WARDLE: Okay. And you're the 12 person who got charged with spearheading the internal 13 review. 14 DR. JAMES CAIRNS: That's correct. 15 MR. PETER WARDLE: Okay. And, first of 16 all, just dealing with the external review, would you not 17 agree with me that it looks, to a bystander looking at 18 this now in 2007, that you're obvi -- that your office 19 was obfuscating what was taking place? 20 DR. JAMES CAIRNS: Dr. Young had 21 announced in the media an external review, as opposed to 22 having it put out as an official press release. My 23 recollection is that he certainly told us, as a result of 24 legal advice, it's gone. 25 He did not then send out a media release
1761 saying to clarify what was said previously; there's not 2 going to be an external review. And unless you were 3 coincidentally reading the article that I can't bring you 4 to know, but at some stage in May in a conversation with 5 a journalist he indicated there was going to be no 6 external review. 7 Unless you were aware of all that, you 8 would have thought there was an external review still 9 ongoing. 10 MR. PETER WARDLE: And there's no notes 11 of any of these discussions about the external review, is 12 there, aside from one (1) note in January when you're 13 first thinking about it? 14 DR. JAMES CAIRNS: No notes by...? 15 MR. PETER WARDLE: By anyone involved; 16 you, Dr. Young -- 17 DR. JAMES CAIRNS: The notes about an 18 external review would have been notes by Dr. Young, which 19 would have included -- if he had put out a press release, 20 it would have then included the notes that he had as a 21 result of a conversation or as a result of a legal 22 opinion he had obtained saying to stop it. And that 23 would followed clearly by a note that a memo was going 24 out to that effect. And I'm not aware of any of those 25 notes.
1771 MR. PETER WARDLE: Then, as I understand 2 it, Dr. Cairns, sometime in the first half (1/2) of 2001, 3 you become involved in a -- an internal review of 4 approximately eighteen (18) homicidally suspicious -- 5 criminally suspicious cases, correct? 6 DR. JAMES CAIRNS: That is correct. 7 MR. PETER WARDLE: And there's another 8 six (6) taken -- given to Dr. Carpenter that are non- 9 criminally suspicious, and you've given your evidence 10 about those. 11 DR. JAMES CAIRNS: That's correct. 12 MR. PETER WARDLE: And with respect to 13 the internal review done by your office of these 14 seventeen (17) or eighteen (18) cases, as I understand it 15 from what you've said already, if the file had had an 16 internal checkmark audit by Dr. Chiasson, it was 17 considered to have been reviewed already. 18 DR. JAMES CAIRNS: Correct. 19 MR. PETER WARDLE: And in the other 20 cases, you and David Chiasson may have done a paper 21 review to determine whether there were significant 22 errors. 23 DR. JAMES CAIRNS: Either David Chiasson, 24 Dr. McLellan, or myself, individually, may have looked at 25 those files.
1781 MR. PETER WARDLE: And this became the 2 subject of the controversy in the Kporwodu case where you 3 testified repeatedly about this issue, correct? 4 DR. JAMES CAIRNS: That is correct. 5 MR. PETER WARDLE: You testified in 2001 6 in November, correct? 7 DR. JAMES CAIRNS: Correct. 8 MR. PETER WARDLE: And then you testified 9 again during pretrial motions in 2002, correct. 10 DR. JAMES CAIRNS: That's correct. 11 MR. PETER WARDLE: And you swore an 12 affidavit. 13 DR. JAMES CAIRNS: I did. 14 MR. PETER WARDLE: And I don't want to 15 belabour this, Dr. Cairns, but... 16 17 (BRIEF PAUSE) 18 19 MR. PETER WARDLE: In your affidavit 20 which is in volume III, at Tab 7. 21 22 (BRIEF PAUSE) 23 24 MR. PETER WARDLE: 031169. So this 25 affidavit is sworn October 23rd, 2002. And you can tell
1791 that from page 13 of the affidavit, Dr. Cairns. 2 DR. JAMES CAIRNS: I accept that. 3 MR. PETER WARDLE: So this is after 4 you've already testified several times at the preliminary 5 hearing, correct? 6 DR. JAMES CAIRNS: Correct. 7 MR. PETER WARDLE: And after the 8 controversy about this so-called review is already 9 swirling about, correct? 10 DR. JAMES CAIRNS: Correct. 11 MR. PETER WARDLE: And you had legal vice 12 -- legal advice in connection with preparing this 13 affidavit? 14 DR. JAMES CAIRNS: I recollect that I 15 did. 16 MR. PETER WARDLE: And it, in fact, is 17 still wrong, isn't it? There are things in this 18 affidavit that is simply -- aren't correct? 19 DR. JAMES CAIRNS: I'm not going to 20 disagree with you, but would you like to point those out 21 to me so that I can... 22 MR. PETER WARDLE: Well, we might start 23 with the chart that's Exhibit E. 24 DR. JAMES CAIRNS: Yes, I have that 25 chart.
1801 MR. PETER WARDLE: That chart, looked at 2 today in 2007, you would agree that it is misleading, 3 correct? 4 DR. JAMES CAIRNS: I agree it is 5 misleading, yes. 6 MR. PETER WARDLE: It presents a 7 favourable view of Dr. Smith to whoever reads it, 8 correct? 9 DR. JAMES CAIRNS: That is an 10 interpretation, correct. 11 MR. PETER WARDLE: Well, it's not just an 12 interpretation. That's what anybody who review this 13 would come to that conclusion. You would conclude that 14 the Office of the Chief Coroner has carried out an 15 internal review and an external review, and in most of 16 the cases had agreed with Dr. Smith. 17 Isn't that right? 18 DR. JAMES CAIRNS: That is correct. We 19 had identified four (4) or five (5) where there were 20 issues, but the rest is correct. 21 COMMISSIONER STEPHEN GOUDGE: Are you 22 referring there, Mr. Wardle, to the column that says, 23 "External review agrees with Dr. Smith"? 24 MR. PETER WARDLE: Correct. 25 DR. JAMES CAIRNS: And I will agree with
1811 you that his was ma -- very misleading. And I would 2 agree with Justice Trafford's comments in his decision on 3 that, where he characterizes the review and my handling 4 of the review and how, although, not done in bad faith, 5 that it had the effect of misleading, and at sometimes 6 that the evidence was in fact wrong. 7 And I accept what Justice Trafford says in 8 his judgment. 9 10 CONTINUED BY MR. PETER WARDLE: 11 MR. PETER WARDLE: If we went back and we 12 looked, Dr. Cairns, at all of the issues that we've been 13 covering in the past few days, and we just asked some 14 basic questions about documentation. 15 Let me just take you through them. You 16 testified on Monday about discussions you'd had with Dr. 17 Smith relating to delivery of his reports, correct? 18 DR. JAMES CAIRNS: Correct. 19 MR. PETER WARDLE: None -- none of those 20 discussions were documented, correct? 21 DR. JAMES CAIRNS: There is documentation 22 with meetings we had with Dr. Becker, Dr. Chiasson and 23 Dr. Smith, which does document our concerns regarding his 24 late reports. 25 MR. PETER WARDLE: No, I'm talking about
1821 your one-on-one discussions with Charles Smith, in which 2 you brought delays to his attention? 3 DR. JAMES CAIRNS: When I brought -- 4 MR. PETER WARDLE: And those are not 5 documented anywhere. 6 DR. JAMES CAIRNS: When they were brought 7 to his attention, that was done verbally, you are 8 correct. 9 MR. PETER WARDLE: And the concerns you 10 told us about on Monday about Dr. Smith changing his 11 opinion from the beginning of a case to the end of a 12 case, again, you had those conversations verbally with 13 Dr. Smith, correct? 14 DR. JAMES CAIRNS: Correct. 15 MR. PETER WARDLE: There's no 16 documentation in your file reflecting those discussions? 17 DR. JAMES CAIRNS: Not to the best of my 18 knowledge. 19 MR. PETER WARDLE: And your case review 20 of the Nicholas case, after it was over, any discussions 21 you had with Charles Smith about that case are not in 22 writing, are they? 23 DR. JAMES CAIRNS: There -- the only 24 discussion I had with Dr. Smith after that was over is 25 that he was disappointed that we were accepting Dr.
1831 Case's comments on the case. There was no further 2 discussion. 3 MR. PETER WARDLE: He wasn't reprimanded? 4 DR. JAMES CAIRNS: He was not 5 reprimanded. 6 MR. PETER WARDLE: There was no concerns 7 brought to this attention in writing? 8 DR. JAMES CAIRNS: Correct. 9 MR. PETER WARDLE: You had a phone call 10 with him or a meeting and you don't have a document to 11 show that discussion, right? 12 DR. JAMES CAIRNS: I do not. 13 MR. PETER WARDLE: And then the 14 discussions that you had in January 2001 about the so- 15 called review between you and Dr. Young, in that whole 16 time period, with the exception of the one (1) 17 handwritten note right at the beginning, we have no 18 contemporaneous notes or records of any of those 19 discussions, do we? 20 DR. JAMES CAIRNS: Discussion in 2001 21 where Dr. Young called an external review would not have 22 been a discussion with me only. It would have been a 23 discussion with Dr. Porter, Dr. McLellan, Dr. Chiasson, 24 and myself. 25 MR. PETER WARDLE: But aside from the one
1841 (1) note, which Ms. Rothstein took you through; one (1) 2 hand-written note, one (1) piece of paper, none of your 3 discussions with Dr. Young about this critical issue over 4 this time period are documented? 5 DR. JAMES CAIRNS: Not to the best of my 6 knowledge. 7 MR. PETER WARDLE: And then your 8 decision-making with respect to the so-called internal 9 review in 200 -- what you did, who did what, what your 10 role was, what David Chiasson's role was -- none of 11 that's documented either, is it? 12 DR. JAMES CAIRNS: That's correct, and 13 that was clearly indicated at the trial. 14 MR. PETER WARDLE: The decision to have 15 Charles Smith return to the roster is not documented, is 16 it? 17 DR. JAMES CAIRNS: There is documentation 18 with regard to -- due to the amount of work, that it is 19 intended for Dr. Smith to return to -- to the rota. 20 Whether that's in Dr. Chiasson's notes, but there -- 21 there is some documentation, which, I will admit, I have 22 only seen when I've gone through all of this material. 23 But, to the best of my recollection, there 24 is some material indicating that Dr. Carpenter's 25 (phonetic) review and the fact that they were so short
1851 staffed that he would be going back on the rota. 2 MR. PETER WARDLE: And what about the 3 decision to have him perform this one (1) criminally 4 suspicious autopsy at a point when he was suspended? 5 Is the -- is that decision documented 6 somewhere? 7 DR. JAMES CAIRNS: Any documentation 8 there would be about that would be with the Toronto 9 Homicide Squad, who were very much involved in it. There 10 was a large meeting before that took place, and it is my 11 experience that the Toronto Homicide Squad do document 12 everything that's said. 13 But I did not document anything in that 14 regard. 15 MR. PETER WARDLE: Well, can I suggest to 16 you, sir, that in January of 2001, you and Dr. Young 17 concluded that you could no longer support Dr. Smith, and 18 that's why the decision was made -- whether his 19 instigation, your instigation -- to have him stop doing 20 criminally suspicious autopsies? 21 DR. JAMES CAIRNS: The request came from 22 Dr. Smith, but I will accept that if the request had not 23 come from Dr. Smith, it's my understanding, that we would 24 have asked him to step aside. 25 MR. PETER WARDLE: Now, you gave us a
1861 lengthy rationale the other day about why you, 2 personally, believed in Charles Smith right up to the 3 time of the discussion about the hair in the Jenna case 4 in early 2003, I think, correct? Sorry, 2002. 5 DR. JAMES CAIRNS: 2002, correct. 6 MR. PETER WARDLE: Can I suggest to you 7 that one (1) of the factors that was in play throughout 8 this entire period was that you and Dr. Young were 9 determined that if Dr. Smith was going down, the Office 10 of the Chief Coroner was not going down with him? 11 DR. JAMES CAIRNS: I do not accept that. 12 MR. PETER WARDLE: And isn't that a more 13 rational explanation for why there was never an adequate 14 review, either an internal review or an external review, 15 at any point after January 2001? 16 DR. JAMES CAIRNS: That is your view. I 17 have indicated why I had faith in him until the time I 18 did, and I will accept the Commissioner's finding on that 19 in due course. 20 MR. PETER WARDLE: Thank you, sir. Those 21 are all my questions. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 23 Wardle. Mr. Sokolov...? 24 25 CROSS-EXAMINATION BY MR. LOUIS SOKOLOV:
1871 MR. LOUIS SOKOLOV: Good afternoon, Dr. 2 Cairns. 3 DR. JAMES CAIRNS: Good afternoon. 4 MR. LOUIS SOKOLOV: My name is Louis 5 Sokolov and I represent AIDWYC, the Association in 6 Defence of the Wrongly Convicted. I first want to ask 7 you about -- to follow up on a question and answer that 8 you gave before the lunch break to Mr. Wardle, and that 9 had to do with the supervision of Dr. Smith. 10 You were asked whether, in your view, he 11 was adequately supervised from 1991 to 1994, and you 12 replied, according to my note, that there wasn't adequate 13 supervision of him going to back to 1981, is that -- 14 DR. JAMES CAIRNS: My recollection is 15 that is would have be -- unless the supervision occurred 16 at the Hospital for Sick Kids, I'm not aware of any su -- 17 any supervision of his pathology by another pathologist 18 during that period of time. 19 MR. LOUIS SOKOLOV: All right. And so, 20 obviously, if there's no supervision by another 21 pathologist, there's no adequate supervision of Dr. 22 Smith. 23 DR. JAMES CAIRNS: I would agree with 24 that. 25 MR. LOUIS SOKOLOV: And I assume you
1881 would also agree that the supervision of Dr. Smith after 2 1994 is wanting, given what we've heard over the -- the 3 last couple of weeks here. 4 DR. JAMES CAIRNS: I would also accept 5 that. 6 MR. LOUIS SOKOLOV: So, effectively, what 7 we have is 1981 is when Charles Smith starts doing work 8 as a pathologist, correct? 9 DR. JAMES CAIRNS: That's correct. 10 MR. LOUIS SOKOLOV: So throughout his 11 entire career, working under the auspices of the Ontario 12 Chief Coroner's Office, there has never been any adequate 13 supervision of this man, is that fair? 14 DR. JAMES CAIRNS: I think probably the 15 only time that there was an adequate review is when a 16 major issue arose, for example, in the Jenna case in the 17 -- the -- oh, I don't want to get -- the Sharon case, 18 unle -- oh, with the exception of those, I would accept. 19 MR. LOUIS SOKOLOV: There has never been 20 -- with the exception of those instances there has never 21 been adequate review? 22 DR. JAMES CAIRNS: Four (4) or five (5) 23 of those cases were there was review, but other than 24 that, I would accept that. Well, perhaps not -- there 25 were reviews done by Dr. Chiasson, and some of those
1891 reviews, obviously, would have been adequate because 2 there's been no issue with them. 3 But there are others where a review may 4 have been done, and the review did not show up the 5 inadequacies so, therefore, one would say there was a 6 review, but the review did not catch the inadequacies. 7 MR. LOUIS SOKOLOV: All right. Now, we - 8 - we're familiar with what was reviewed between the time 9 period 1991 and 2001, and that was the one (1) that 10 resulted in the forty-five (45) cases being reviewed. 11 DR. JAMES CAIRNS: That is correct. 12 MR. LOUIS SOKOLOV: I want to turn your 13 mind then to the period of time prior to 1991; between 14 1981 and 1991. I take it, sir, when you came to the 15 realisation in 2002, following the incident with the 16 hair, that you could no longer have faith in Dr. Smith's 17 competence, nor his veracity. 18 First of all, am I adequately summarising 19 your -- your evidence in that regard? 20 DR. JAMES CAIRNS: Correct. 21 MR. LOUIS SOKOLOV: And that was a -- a 22 finding that you made, or a determination you -- that had 23 made, going back retroactively. 24 DR. JAMES CAIRNS: I think it -- it was a 25 finding at that time that everybody in the -- the Senior
1901 Management of the Chief Coroner's Office agreed with. 2 MR. LOUIS SOKOLOV: So, what I would take 3 from that then, sir, is you can't have any confidence 4 whatsoever that Dr. Smith was conducting his duties 5 between the period 1981 and 1991 with any greater degree 6 of confidence nor veracity. 7 DR. JAMES CAIRNS: I cannot, and I am 8 aware that in the last -- there was -- after Valin 9 Johnson, there was a decision to have Dr. Smith's 10 criminal cases between 1991 and 2001, in the period that 11 he had been the director, to have those externally 12 reviewed. 13 That has been done. There has been some 14 further discussion to which I wasn't directly party, for 15 I know Dr. McLellan was having discussions -- and it may 16 have been at the Scientific Advisory Committee -- of the 17 necessity to go back and review the cases from 1981 until 18 1991. 19 And I am not sure that there was a 20 resolution at this time of that issue. 21 MR. LOUIS SOKOLOV: Sir, in -- in your 22 view and your understanding of the office, do you believe 23 that that is a prudent and necessary task to undertake, 24 given the possibility that miscarriages of justice may 25 well have resulted from Dr. Smith's involvement --
1911 DR. JAMES CAIRNS: I personally have no 2 objection to such a review taking place. 3 MR. LOUIS SOKOLOV: Well let alone to 4 having no objection, do you think it's a good idea? 5 DR. JAMES CAIRNS: I think it is a good 6 idea. 7 MR. LOUIS SOKOLOV: Do you know how many 8 cases we are talking about during that period? 9 DR. JAMES CAIRNS: I don't. I think Dr. 10 McLellan could probably assist you in that. Because I am 11 aware that there was some discussion regarding that, and 12 they pulled the numbers -- I stand to be corrected -- but 13 they pulled the numbers, and there was at least some 14 discussion that they would review cases where someone was 15 convicted. 16 So they were going to, maybe narrow the 17 focus a little bit further, but there was some discussion 18 that they were going to review those cases. What 19 happened to that, you would have to ask Dr. McLellan, 20 because he -- he was the one that was at least 21 discussing that with -- in -- with the Scientific 22 Advisory Committee and with Mr. Lockyer. 23 MR. LOUIS SOKOLOV: Now, Dr. Cairns, this 24 may go without saying, but I'll -- I'll say it anyway; 25 if there was no adequate supervision of Dr. Smith in that
1921 period of time, am I right to assume that there was no 2 adequate supervision of anyone conducting medicolegal 3 autopsies under the auspices of the Ontario Chief 4 Coroner's Office? 5 DR. JAMES CAIRNS: I'm going to have to 6 say that Dr. Hillsdon Smith was responsible as the Chief 7 Forensic Pathologist. All I can tell you is that when I 8 came down in 1991, and for a least a year or two (2) 9 prior to that, there did not appear to have been any 10 adequate supervision. 11 It would be wrong of me to then go back -- 12 it may well be correct, but it would be more appropriate 13 for somebody who was there at the time. There was a 14 period where all of a sudden or -- where Dr. Hillsdon 15 Smith seemed to down tools for whatever reason. 16 So was there -- was there adequate 17 supervision prior to that? I can't give an honest 18 answer. 19 MR. LOUIS SOKOLOV: So at least from 1989 20 there was no adequate supervision? 21 DR. JAMES CAIRNS: I could certainly say, 22 honestly, from 1989, I'm not aware of any supervision of 23 an autopsy report being passed by someone like the Chief 24 Forensic Pathology for quality control. 25 MR. LOUIS SOKOLOV: Let me turn briefly
1931 then to the issue of the cancelling of the external 2 review. And I know you've answered questions from all 3 counsel who have questioned you so far. 4 But, as I understand your evidence, you 5 heard from Dr. Young that it was as a result of legal 6 advice that he had received in respect to the ongoing 7 civil litigation that caused the external review in 2001 8 to be cancelled? 9 DR. JAMES CAIRNS: He indicated he had 10 received legal advice, and we were cancelling the 11 external review. 12 MR. LOUIS SOKOLOV: Now prior to that, 13 your evidence was that although you -- you personally 14 believed in Dr. Smith's veracity and competence at that 15 time, you fairly conceded that that was merely an act of 16 faith on your part, correct? 17 DR. JAMES CAIRNS: It was an act of faith 18 that was shared by many other people. 19 MR. LOUIS SOKOLOV: All right. And one 20 (1) of whom, to your knowledge, was Dr. Young, who was -- 21 DR. JAMES CAIRNS: I think that's -- 22 that's fair. We shared by that, we shared by Crown 23 attorneys. They -- I don't know -- I can go all over. 24 MR. LOUIS SOKOLOV: Right. 25 DR. JAMES CAIRNS: I think it -- it was
1941 shared at that time by many people. I think perhaps it's 2 true that there were many articles in the media, so the 3 media may not any long have been sharing that, but there 4 were still a number of people -- despite the issues that 5 were there, we were still sharing an act of faith. 6 MR. LOUIS SOKOLOV: And you gave the 7 example the media, and you were aware that there were 8 numerous defence counsel who were questioning his -- his 9 competence at that point as well? 10 DR. JAMES CAIRNS: That's correct. 11 MR. LOUIS SOKOLOV: So -- so this was a 12 case where there were different opinions being expressed 13 with respect to Dr. Smith? 14 DR. JAMES CAIRNS: Very much so. 15 MR. LOUIS SOKOLOV: Your's and some 16 others were -- were sharing one (1). But it would have 17 been clear to you, I suggest, Dr. Cairns, that although 18 you personally had faith in this man, there was at least 19 the possibility that you might be wrong? 20 DR. JAMES CAIRNS: Correct. 21 MR. LOUIS SOKOLOV: And it would have 22 occurred to you, being an intelligent and thoughtful man, 23 which clearly you are, that there was at least a 24 possibility that miscarriages of justice had taken place? 25 DR. JAMES CAIRNS: Correct.
1951 MR. LOUIS SOKOLOV: And that was clear to 2 you in 2001? 3 DR. JAMES CAIRNS: It was clear to me in 4 2001 that we should have an external review of Dr. 5 Smith's work. And that would have been the way to deal 6 with that. 7 MR. LOUIS SOKOLOV: Because I would 8 assume that being an intelligent and thoughtful man, the 9 prospect of there being miscarriages of justice having 10 been carried out under the auspices of your of -- office 11 would have been a very troubling prospect to you? 12 DR. JAMES CAIRNS: It would be more 13 troubling if we didn't discover them. 14 MR. LOUIS SOKOLOV: Yes. Because would I 15 be correct that you would consider it really nothing 16 short of an ethical duty to go out and try and identify 17 those miscarriages of justice and correct them? 18 DR. JAMES CAIRNS: Ab -- absolutely. 19 MR. LOUIS SOKOLOV: The -- the legal 20 advice -- and I'm not asking for you to describe what 21 that advice was, but did that come from a lawyer in the 22 employ of the Crown? 23 DR. JAMES CAIRNS: What I can tell you 24 about this, I think Dr. McLellan was apt to say, Dr. 25 Young said, As a result of legal advice I have obtained,
1961 we're stopping it. That's the beginning and end of the 2 information that was given to me. 3 MR. LOUIS SOKOLOV: Leaving aside that 4 particular advice, throughout this story, the -- the 5 Charles Smith story, the legal advice that the Office 6 received on a day-to-day basis was from the seconded 7 Crown attorney, who was -- who was counsel to the -- the 8 Chief Coroner's Office. 9 Is that fair? 10 DR. JAMES CAIRNS: Mr. O'Marra's position 11 was primarily to give legal advice regarding a search and 12 seizure that we may be doing, regarding issues of legal 13 views regarding inquests. It was more -- if it was a 14 policy decision, it would be more likely that we would go 15 to the legal branch of the Ministry. 16 So there would be a bifurcation. Some 17 would come from Mr. O'Marra; some would still go to the 18 legal branch of the Ministry. 19 MR. LOUIS SOKOLOV: But lawyers in the 20 employ of the Crown? 21 DR. JAMES CAIRNS: That would be correct. 22 MR. LOUIS SOKOLOV: Did you consider your 23 -- the proper role of your office to be a tool of the 24 prosecution service, or did you consider that it ought to 25 be neutral as between the prosecution and defence, in
1971 particular cases? 2 DR. JAMES CAIRNS: I considered our 3 office had a responsibility to reach conclusions 4 irrespective of where they were going to lead, without 5 favour or prejudice towards any party. 6 MR. LOUIS SOKOLOV: Looking back now, 7 with -- with the benefit of hindsight, does it strike you 8 as being advisable that your office should receive its 9 legal advice from Crown lawyers or should it receive 10 advice from lawyers who are independent of the Crown? 11 DR. JAMES CAIRNS: As the legislation 12 presently states that people who are seconded to our 13 office as legal counsel have to come from -- from the -- 14 from the Crown attorney's side of things. 15 And then if you're going to take about 16 legal advice of the Coroner's Office through the 17 Ministry, those are ministry lawyers and, as such, by 18 definition, you might say, are Government or Crown 19 lawyers. 20 MR. LOUIS SOKOLOV: The -- the luxury 21 that the Commissioner has in these proceedings is -- is 22 he can look beyond the laws that exist now -- 23 DR. JAMES CAIRNS: I'd be -- I'd be 24 delighted if he does. 25 MR. LOUIS SOKOLOV: And, given that,
1981 would it strike you as being advisable if the legal 2 advice that the Office of the Chief Coroner receives is 3 independent of the Crown? 4 DR. JAMES CAIRNS: If that's 5 Commissioner's advice, it certainly would be taken. 6 MR. LOUIS SOKOLOV: That -- that's -- I 7 appreciate the response, but that wasn't my question. I 8 was asking for your individual view with the knowledge of 9 the Office. 10 DR. JAMES CAIRNS: I don't think that I 11 would be in a -- have had -- had opportunity to analyse 12 all the possible ins and outs of that at this time to -- 13 to give you definitive answer. 14 On the surface, without working out the 15 practicalities or anything else of that nature, it would 16 not upset me. 17 MR. LOUIS SOKOLOV: I -- I think that's 18 my time, Commissioner. 19 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 20 Sokolov. We'll rise now until 3:30 and come back with 21 Mr. Di Luca. 22 23 --- Upon recessing at 3:10 p.m. 24 --- Upon commencing at 3:29 p.m. 25
1991 COMMISSIONER STEPHEN GOUDGE: Mr. Di 2 Luca...? 3 4 CROSS-EXAMINATION BY MR. JOSEPH DI LUCA: 5 MR. JOSEPH DI LUCA: Thank you, 6 Commissioner. Good afternoon, Doctor. 7 DR. JAMES CAIRNS: Good afternoon. 8 MR. JOSEPH DI LUCA: My name is Joseph Di 9 Luca, I'm one (1) of the lawyers for the Criminal 10 Lawyers' Association. I'd like to start by looking 11 forward if -- if we can, because part of our role here is 12 to assist the Commissioner in crafting some proposals for 13 fixing the system. 14 We've heard a lot of evidence about, in 15 effect, if you will, the creation of an icon and the 16 placing of the icon on a pedestal, and I take it you'll 17 agree with me that that, in part, is -- is human nature. 18 DR. JAMES CAIRNS: It certainly has been 19 demonstrated in many parts of the world to have happened, 20 so, yes, it's human nature. 21 MR. JOSEPH DI LUCA: Absolutely not 22 unique to pathology; not unique to medicine. 23 DR. JAMES CAIRNS: Correct. 24 MR. JOSEPH DI LUCA: And, given that it's 25 not unique, it's likely also something that's going to
2001 replicate itself in the future. 2 DR. JAMES CAIRNS: I could foresee it 3 replicating itself in the future, unless appropriate 4 safeguards can be put in place. 5 MR. JOSEPH DI LUCA: Certainly. And it's 6 something that, while we're all cognizant and aware of it 7 today sitting here in this Inquiry room, it's something 8 that we need to deal with looking forward in forensic 9 pathology, as well, correct? 10 DR. JAMES CAIRNS: Very much so. 11 MR. JOSEPH DI LUCA: And I'd like to 12 suggest some possible mechanisms and get your input on 13 them to see if you think they might be useful. One (1) 14 of the issues we've heard, obviously, is that there was a 15 concentration of work with Dr. Smith. 16 DR. JAMES CAIRNS: Correct. 17 MR. JOSEPH DI LUCA: At a certain level, 18 he was doing more than half of the autopsies in 19 criminally suspicious deaths. 20 Is that fair? 21 DR. JAMES CAIRNS: That's correct. 22 MR. JOSEPH DI LUCA: And I take it you 23 would obviously agree that the spreading of that work and 24 -- or having a mechanism to prevent the concentration of 25 the work with -- within a small group is probably a very
2011 useful thing to have. 2 DR. JAMES CAIRNS: I think would be very 3 beneficial. 4 MR. JOSEPH DI LUCA: Right. And 5 obviously that engages some practicalities because 6 there's an issue of cost and an issue of expertise in 7 terms of having sufficient numbers of people qualified to 8 do the job. 9 DR. JAMES CAIRNS: I think the initial 10 thing would be the availability of expertise. Ontario, 11 and Canada as a whole, is sadly lacking in properly 12 qualified forensic pathologists. 13 The fact that there isn't even a sub- 14 specialty presently in the country adds to that. 15 Unfortunately, I don't think that the issue is going to 16 get any better because, and this is not -- as the 17 scrutiny and as the Courts and the scrutiny under which a 18 forensic pathologist in the future will find themselves, 19 I already know of pathologists who are thinking of doing 20 forensic pathology and they said, To hell with that; I 21 ain't going to go and look down the microscope and make 22 twice as much money for hoarder of the stress, and I 23 don't mean it flippantly. 24 The -- the -- these -- these are the 25 realities, so, unfortunately, I don't think we're going
2021 to have people flocking to forensic pathology, even if 2 one (1) was to up their salaries to that of a hospital 3 doctor. 4 It's sad, but that's -- that's the 5 reflection. 6 MR. JOSEPH DI LUCA: But, ultimately, at 7 the bottom of that there is a risk that -- once we 8 concentrate work on one (1) or two (2) people, there is a 9 risk, not only that that person may be overburdened, but 10 that the mere concentration in and of itself leads 11 perhaps circularly to the placing of the person on a 12 pedestal? 13 DR. JAMES CAIRNS: Very much so. 14 MR. JOSEPH DI LUCA: Right. 15 DR. JAMES CAIRNS: And there are -- I 16 mean there are many examples in Spilsbury, Sir Keith 17 Simpson, I mean there's -- 18 MR. JOSEPH DI LUCA: Certainly. 19 DR. JAMES CAIRNS: -- there's all sorts 20 of people who find themselves eventually in that 21 position. 22 MR. JOSEPH DI LUCA: Another issue I'd 23 like to raise with you is -- is the use of a blind 24 review. And when we have a person on a pedestal, I guess 25 part of the problem with having this person on an exalted
2031 pedestal, is that no one is willing to challenge their 2 opinion. 3 And they're seen as sort of a quasi-deity 4 in their field? 5 DR. JAMES CAIRNS: Correct. 6 MR. JOSEPH DI LUCA: Right. And people 7 are reluctant to challenge that opinion, right? 8 DR. JAMES CAIRNS: I -- I agree. 9 MR. JOSEPH DI LUCA: Right. Would it be 10 useful if, in the course of having some sort of an 11 objective systemic review mechanism built into reporting, 12 that those reviews are done on a blind fashion. 13 And what I mean by that is that the 14 pathology report is redacted so that the reviewer doesn't 15 know who the pathologist is who prepared the report. And 16 I recognize there's going to be a variety of issues in 17 terms of doing this, but would that help? 18 DR. JAMES CAIRNS: I think that's an 19 excellent idea. And that has been discussed in the last 20 year or two (2) in that regard. Because we have Dr. 21 Michael Pollanen who, to a certain extent, is getting 22 onto a pedestal himself, and that's not a criticism, But 23 one (1) pathologist may feel somewhat reluctant in 24 auditing his autopsy, and some of that reluctance could 25 disappear if they don't know who -- who it is, so that
2041 they don't have that fear. 2 And there was some discussion of that. 3 I'm not aware that that has been formally adopted at this 4 time. But I would support that adoption, because I think 5 it would help you to just focus on what's there, on the 6 merits of the case, rather then the merits of who wrote 7 the case. 8 MR. JOSEPH DI LUCA: Certainly. And in 9 terms of conducting these blind reviews, I can see that 10 there may be a problem doing it internally, in that a 11 certain office may not have that many pathologists, and a 12 writing style may get to be known within the group, so 13 that it wouldn't be much of a surprise as to who wrote 14 the report? 15 DR. JAMES CAIRNS: Certainly writing 16 styles give people away, yes. The way some people use 17 certain words, others -- so, yes, it would have to be -- 18 in fact right now, the suspicious and criminally are done 19 in London. 20 There are two (2) pathologists there. 21 There's two (2) in Hamilton. There are about six (6) in 22 our office, and there is one (1) at Sick Kids. So I 23 agree with you, that is a very small group, and it would 24 not take very long for each person to be familiar of 25 writing styles, et cetera.
2051 So it's difficult with that small number, 2 to even -- 3 MR. JOSEPH DI LUCA: What if the reviews 4 -- sorry, what if the reviews were farmed out? 5 DR. JAMES CAIRNS: To where? 6 MR. JOSEPH DI LUCA: To an extra 7 provincial, or perhaps international expert? 8 DR. JAMES CAIRNS: Once you do that you 9 are going to get into different legislation. I accept 10 the criticism that Dr. Crane had that there was no 11 history and there was no explanation and long -- 12 explanation, and he was criticizing Dr. Smith on that. 13 To be fair, that is not the way the system 14 works here. So you'd need to have a system that at least 15 said, Okay, we're working the same way and -- and can -- 16 can do that. So, in some ways there's a -- there may be 17 a comparison of apples and oranges. 18 MR. JOSEPH DI LUCA: Okay. 19 COMMISSIONER STEPHEN GOUDGE: I'm not 20 quite sure I understand that, Dr. Cairns. Do you mean 21 the autopsy reports, themselves, don't contain the 22 narrative that other jurisdictions have in their autopsy 23 reports? 24 DR. JAMES CAIRNS: The jurisd -- in the 25 British Isles, they contain much more of a narrative --
2061 COMMISSIONER STEPHEN GOUDGE: Right. 2 DR. JAMES CAIRNS: -- beforehand, but 3 particularly, they give their opinions. So if they say, 4 Cause of death, smothering, they will give the evidence 5 on which they base that, and they will give their opinion 6 on how long it took, et cetera. 7 So their opinion evidence, which normally 8 is given in court here, is part of their official autopsy 9 report. So if they look at a report from here, from 10 anyone, they're going to be critical, because the policy 11 in both Canada and the United States has not been to 12 include that commentary with the autopsy report. 13 It has been pure and simply to say in the 14 autopsy report, Here is exactly what I found, without 15 giving an explanation about having found that, here's how 16 I came to my conclusion. 17 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 18 DiLuca, but what is your understanding of the policy 19 rationale for that approach to autopsy report writing in 20 Ontario? 21 DR. JAMES CAIRNS: My understanding is 22 that that's what the courts wanted; that's what the 23 Crowns and the defence wanted. That if the -- if -- the 24 Crown said we'll tak -- we'll deal in your examination, 25 and when we would get a defence report, it would be
2071 similar. 2 You get this and we'll deal with your -- 3 opinion evidence was considered to be something you give 4 on the witness stand rather than in your report. 5 That's -- 6 COMMISSIONER STEPHEN GOUDGE: So as 7 Deputy Chief Coroner you would see nothing wrong with a 8 different form of report that had more narrative and more 9 reasoning in it? 10 DR. JAMES CAIRNS: I -- I think it's a 11 wonderful step in the right direction, because I think, 12 first of all, it will narrow down when it comes to court, 13 you'll realize if there's a pathologist on one (1) side 14 and a pathologist on the other side, you'll have an idea 15 if, out of all the stuff, do we have to go over 16 everything or are there two (2) central issues that we 17 need to focus in on where there's a difference of 18 opinion, and let's do that, at that time. 19 And likewise, if somebody is doing an 20 audit before that report goes, you will find much more in 21 the reasons for that conclusion, if it's there, rather 22 than just looking, Well, here there's obviously a massive 23 head injury, cause of death, head injury. It doesn't 24 tell you very much in how you can audit it. 25 COMMISSIONER STEPHEN GOUDGE: Right.
2081 Sorry, Mr. Di Luca. 2 3 CONTINUED BY MR. JOSEPH DI LUCA: 4 MR. JOSEPH DI LUCA: It's all right. 5 Thank you. So, in effect then, if we move to a system 6 where the form of our reports were interchangeable with 7 the form of reports used elsewhere, that might be 8 something that could foster a more easy sense of 9 independent review and perhaps a blind review? 10 DR. JAMES CAIRNS: Certainly, from 11 listening to the way they do the reports presently in the 12 British Isles, if we move towards to that, that would 13 certainly assist greatly. 14 MR. JOSEPH DI LUCA: All right. You 15 mentioned testimony, and I think one (1) of the issues 16 that comes up in this case here is that obviously there's 17 no review of Dr. Smith's testimony that he was giving in 18 court? 19 DR. JAMES CAIRNS: That's correct. 20 MR. JOSEPH DI LUCA: Would it assist if - 21 - much like I -- I suggest a blind review of autopsy 22 reports -- would it assist if there was a redacted 23 transcript that was reviewed by others perhaps on a 24 random basis; one (1) case out of five (5), one (1) case 25 out of ten (10), one (1) case out of twenty (20) or in
2091 select cases that would give others an opportunity to 2 comment, perhaps critique, without knowing who it is, 3 such that they might not be stymied by the name that 4 appears at the top of the transcript? 5 DR. JAMES CAIRNS: Ideally, I would like 6 to see that if a pathologist is in court today, that I 7 can, this afternoon, read a copy of his transcript the 8 way we can at this Inquiry. 9 MR. JOSEPH DI LUCA: Right. 10 DR. JAMES CAIRNS: So that the time to -- 11 if there's a problem, to nip it in the bud -- would be 12 then rather than six (6) to seven (7) months later after 13 a judgment had been made. And I think anyone who has had 14 any experience in trying to get transcripts, you don't 15 get them overnight. 16 MR. JOSEPH DI LUCA: Right. Well, this 17 Inquiry may change that aspect of it as well. You 18 testified earlier today and you -- you used a phrase that 19 I found interesting. You used a phrase "young 20 whippersnapper." 21 And that was a phrase you used in 22 describing a discussion you had with Ken Campbell with 23 the Crown Law Office Criminal -- in his discussion with 24 you about Dr. Pollanen? 25 DR. JAMES CAIRNS: That's correct.
2101 MR. JOSEPH DI LUCA: It's an interesting 2 issue because I take it part of the review mechanism, a 3 lot of times when the challenger comes up to challenge 4 the icon on the pedestal, they may be viewed as the young 5 whippersnapper who's going after a seasoned pro? 6 DR. JAMES CAIRNS: I -- I don't whether 7 "whippersnapper" is a Canadian expression or an Irish 8 expression. It's my expression. 9 MR. JOSEPH DI LUCA: We can share it 10 today. 11 DR. JAMES CAIRNS: I -- I think you can 12 under -- you understand my meaning. 13 MR. JOSEPH DI LUCA: No, absolutely. And 14 -- and I see that as a bit of a problem. And -- because 15 a person's review or critique make be dismissed because 16 they are lacking in the same pedestal-like standing, as 17 you will -- if you will, of the doctor they're reviewing. 18 So until someone hears, Oh, no, he's not 19 just some young whippersnapper, he is a doctor of true 20 repute, they might be inclined to dismiss. And -- and 21 here is my point on this or here is my question for you. 22 The review, would it assist to do the 23 review in a double-blind fashion, so that the reviewer 24 doesn't know who they are reviewing and then the report 25 that comes back from the reviewer doesn't indicate who
2111 the reviewer is. 2 So that if it comes back to a committee, 3 the committee sits there reviewing this report not 4 knowing who the reviewer is. Although, knowing that it's 5 obviously someone qualified to give it. Just trying to 6 neutralize the search for a name on a piece of paper, 7 which seems to be part of the problem here? 8 DR. JAMES CAIRNS: I -- I can see where 9 you're go fro -- for -- and actually it -- it -- the 10 reason I mentioned it, it -- it did take me -- and I'm 11 not -- it took me probably half an hour to persuade Mr. 12 Campbell that, yes, we have to take this seriously 'cause 13 he said, I've never heard of this guy. Who is he? 14 Now, he did -- but certainly, if I had 15 come over with the same report written by, perhaps, Dr. 16 Chiasson, who was much better known, I probably wouldn't 17 of had to have that half hour discussion. 18 MR. JOSEPH DI LUCA: Certainly. So you 19 would endorse -- if there could be a proposal crafted 20 that was practical and made sense in terms of economics, 21 that's something you would endorse? 22 DR. JAMES CAIRNS: If it's practical, I 23 would endorse it. 24 MR. JOSEPH DI LUCA: Certainly. And it 25 just leads me sort of to my wrap up. I have some concern
2121 about the culture at the Office of the Chief Coroner of 2 Ontario around the time when Dr. Smith was there. 3 And my concern is, in effect, you -- 4 you've testified very candidly that you stood by him and 5 you had a strongly held belief in his competence, 6 notwithstanding the existence of a variety of red flags 7 over time. 8 Is that fair? 9 DR. JAMES CAIRNS: That's fair. 10 MR. JOSEPH DI LUCA: And your view, in 11 terms of his competence, was one that was shared at the 12 OCCO by others, correct? 13 DR. JAMES CAIRNS: Yes, in that I was one 14 (1) of a number of people there and, therefore, I didn't 15 have the casting vote; we were primarily acting as a 16 team. 17 MR. JOSEPH DI LUCA: Certainly. It was a 18 culture, a thought, the shared amongst a group of people 19 that ran the office. 20 DR. JAMES CAIRNS: It was, and the -- the 21 -- the view may have been more hel -- more strongly held 22 by some, than others. 23 MR. JOSEPH DI LUCA: Certainly. And you 24 also testified very candidly in your examination-in-chief 25 and in parts of your cross-examination about certain
2131 issues that, looking back in hindsight, you would do 2 differently. And I'll just list a few as an example. 3 The affidavit you provided in the Nicholas 4 case to the CAS in effect seconding Dr. Smith's opinions; 5 I take it now, looking back, that's something that you 6 would not have done. 7 DR. JAMES CAIRNS: That is something I 8 would not have done, and in fact, it is something I 9 corrected at that time when it was brought to my 10 attention, but I certainly would not do it again. 11 MR. JOSEPH DI LUCA: Certainly. The 12 testimony and affidavit material that was put before the 13 Court on the Kporwodu and Veno case. 14 DR. JAMES CAIRNS: If that was to be done 15 again, we would have to sit down and ensure that the 16 evidence I was giving was clear and was not confusing -- 17 MR. JOSEPH DI LUCA: Sure. 18 DR. JAMES CAIRNS: -- in the manner that 19 it was, yes. 20 MR. JOSEPH DI LUCA: Certainly. And you 21 do ultimately accept that it was very misleading in the 22 picture that it created objectively about the nature and 23 the scope of the review that was undertaken. 24 DR. JAMES CAIRNS: I -- I exac -- I 25 accept the exact ruling of jus -- Justice Trafford, yes.
2141 MR. JOSEPH DI LUCA: Certainly. And as a 2 last example, your report to Crown counsel, Ms. 3 Cecchetto, on the Paolo matter, again a report in effect 4 seconding Dr. Smith's opinions. 5 I take it that in hindsight, looking back, 6 that's not something you would do again. 7 DR. JAMES CAIRNS: That's correct. 8 MR. JOSEPH DI LUCA: Would you agree with 9 me, Doctor, that when we look at these efforts and these 10 issues, which now, in hindsight, I suggest are 11 regrettable and wouldn't happen again, that there may 12 have been a conscious, if not, perhaps at least 13 subconscious effort on the part of yourself and your 14 office to adopt a defensive stance on behalf of Dr. Smith 15 when he was under attack in the media in facing scrutiny 16 before the Courts? 17 DR. JAMES CAIRNS: I can only speak for 18 myself. It wasn't a defence of anything I said at the 19 time; I -- I accepted it and it wasn't that I thought he 20 was wrong, and I was going to cover up for him. 21 MR. JOSEPH DI LUCA: Would you agree that 22 what happened is reflective of a culture at the Office of 23 the Chief Coroner of Ontario that sought to protect 24 Charles Smith at the time when his integrity was being 25 impugned?
2151 DR. JAMES CAIRNS: It was not my 2 intention to protect him, although I can certainly see 3 that that could be an impression that could be drawn. 4 MR. JOSEPH DI LUCA: All right. And you 5 would agree that, objectively, one looking at this and 6 looking at the steps, like I've highlighted; the three 7 (3) examples I gave you -- examples out of many -- that 8 the objective viewer might look at this and say someone 9 was trying to protect Dr. Smith? 10 DR. JAMES CAIRNS: The objective reviewer 11 in this case is Mr. Commissioner, and I will accept his 12 views on that. 13 MR. JOSEPH DI LUCA: Thank you. Mr. 14 Commissioner, those are my questions. 15 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 16 Di Luca. 17 Mr. Falconer...? 18 19 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 20 MR. JULIAN FALCONER: Good afternoon, Dr. 21 Cairns. 22 DR. JAMES CAIRNS: Good afternoon, Mr. 23 Falconer. 24 MR. JULIAN FALCONER: Dr. Cairns, I act 25 on behalf of Aboriginal Legal Services of Toronto and
2161 Nishnawbe-Aski Nation. Aboriginal Legal Services of 2 Toronto is a multi-service legal agency providing 3 services to aboriginal communities across the Province. 4 And Nishnawbe-Aski Nation is a political 5 organization that represents forty-nine (49) First 6 Nations communities in Northern Ontario comprising of 7 two-thirds (2/3) of the Province of Ontario, and includes 8 approximately forty-five thousand (45,000) First Nations 9 members. 10 The issues that I want to canvas with you 11 on behalf of my clients relates primarily to issues of 12 access to services in remote communities, all right? 13 DR. JAMES CAIRNS: Correct. 14 MR. JULIAN FALCONER: And, in particular, 15 I'd ask you to have regard to the reality that in terms 16 of First Nations communities, over 50 percent of the 17 population of First Nations communities, actually live in 18 rural Ontario, all right? 19 DR. JAMES CAIRNS: Yes. 20 MR. JULIAN FALCONER: Before I get to it, 21 and with introduction, and I apologize in terms of having 22 to deviate for a minute, but I -- I heard your evidence 23 to Mr. -- in answer to questions by Counsel for the 24 Association in Defence of the Wrongfully Convicted, Mr. 25 Sokolov, and I just wanted to clarify something with you.
2171 Section 30 of the Coroners Act doesn't 2 actually require that it be a Crown attorney that advises 3 the coroner, does it? Can I just read it to you? I 4 don't want to play a memory game, I just want -- 5 DR. JAMES CAIRNS: No, if -- if you read 6 it to me -- 7 MR. JULIAN FALCONER: Sure. 8 DR. JAMES CAIRNS: -- I'll certainly -- 9 yes. 10 MR. JULIAN FALCONER: It says: 11 "Every coroner, before holding an 12 inquest, shall notify the Crown 13 attorney of the time and place at which 14 it is to be held. And the Crown 15 attorney or a Barrister and Solicitor, 16 or any other person designated by him 17 or her, shall attend the inquest and 18 shall act as counsel to the coroner at 19 the inquest." 20 So, section 30 actually contemplates 21 something broader then simply a Crown attorney, isn't 22 that fair? 23 DR. JAMES CAIRNS: It does in that 24 context. I don't think that's what I was being asked. 25 MR. JULIAN FALCONER: Okay.
2181 DR. JAMES CAIRNS: We have a number of 2 people who are seconded to our office. 3 MR. JULIAN FALCONER: All right. 4 DR. JAMES CAIRNS: And my understanding 5 is a secondment must come from a Government employee. 6 MR. JULIAN FALCONER: Fair enough. 7 DR. JAMES CAIRNS: There have been people 8 who have applied for that position in the past who have 9 not been in Government, and the instructions were, This 10 is not an outside competition, you need to be within 11 Government. 12 MR. JULIAN FALCONER: I see. And the 13 only -- again, on that note, and just to close out this 14 aspect, I -- you know that among others, and primarily 15 Professor Allan Manson (phonetic) did an Ontario Law 16 Reform Commission Report in 1995, yes? 17 DR. JAMES CAIRNS: I'm well aware of it. 18 MR. JULIAN FALCONER: In section 39(1), 19 that they proposed to amend section 30(1), and I'm just 20 going to read it to you, because again, this came out of 21 Mr. Sokolov's questions. It says: 22 "Section 30 of the Coroners Act should 23 be amended to provide that before 24 holding an inquest, the presiding 25 coroner, in consultation with the
2191 Regional Coroner's Office, shall 2 appoint a Barrister and Solicitor to 3 act as counsel to the coroner at the 4 inquest." 5 So the actual recommendation that flowed 6 from the Ontario Law Reform Commission was, in fact, you 7 distance yourself from Crown attorneys, and simply 8 appoint a Barrister and Solicitor, isn't that true? 9 DR. JAMES CAIRNS: That was the 10 recommendation. 11 MR. JULIAN FALCONER: And that wasn't 12 accepted? 13 DR. JAMES CAIRNS: I know it wasn't 14 accepted, but how it wasn't accepted, I -- I have no 15 knowledge. 16 MR. JULIAN FALCONER: Fair enough. Thank 17 you, I just thought I might address that briefly. Now, 18 in terms of the issues that my client has examined, 19 former Chief Coroner McLellan, and Dr. John Butt. 20 I had actually given a notice and asked if 21 you could briefly review the evidence of Dr. Butt to -- 22 to kind of twig you to where my client's asking 23 questions, is that fair? 24 DR. JAMES CAIRNS: That's fair. 25 MR. JULIAN FALCONER: Did you get an
2201 opportunity -- it was a pretty quick cross-examination? 2 DR. JAMES CAIRNS: Yes, I did. 3 MR. JULIAN FALCONER: 4 Uncharacteristically brief on my part, wouldn't you 5 agree? 6 DR. JAMES CAIRNS: Thanks to the 7 Commissioner. 8 MR. JULIAN FALCONER: Be careful for what 9 you ask. Eh, all right, fine -- fine -- fine, I'll just 10 go back to my questioning. 11 And what I'd like to know is, first of 12 all, I had asked Dr. Butt some questions about the notion 13 of a community based investigator, correct? 14 DR. JAMES CAIRNS: Yes. 15 MR. JULIAN FALCONER: And, in essence, to 16 try to sum up the discussion that had taken place in the 17 evidence before the Commissioner, I had put to Dr. Butt 18 the proposition that in -- in reality, remote 19 communities, First Nations communities, have great 20 difficulties and challenges in getting access to medical 21 services for live people, correct? 22 DR. JAMES CAIRNS: Correct. 23 MR. JULIAN FALCONER: And, specifically, 24 in getting access to doctors for live people, correct? 25 DR. JAMES CAIRNS: Correct.
2211 MR. JULIAN FALCONER: So that the 2 likelihood or the prospect of the deceased, or a 3 situation of death attracting a doctor in a remote 4 community is quite small, isn't it? 5 DR. JAMES CAIRNS: Yes, it is. 6 MR. JULIAN FALCONER: Would -- would you 7 agree with me that it would actually be a surprise if an 8 investigating coroner in the form of a doctor actually 9 visited a remote First Nations community? 10 DR. JAMES CAIRNS: I would think it would 11 be rare. 12 MR. JULIAN FALCONER: And in being rare, 13 that means that the Coroners Act power to delegate the 14 powers of an investigating coroner to a police officer 15 are really the general practice when it come to remote 16 communities. 17 Is that right? 18 DR. JAMES CAIRNS: That's correct, and 19 that's why that section is in the Coroner's Act. Some 20 coroner's would like to use that in Toronto so they don't 21 have to get out of bed. And they have been instructed 22 clearly that that section is there for the very purposes 23 to which you're referring to at that time. 24 MR. JULIAN FALCONER: And so it wouldn't 25 come as a surprise to you to hear that in the carriage of
2221 our brief, Ms. Murray and myself, on behalf of our 2 clients, have actually been told by band councils for 3 remote communities that they've never either met or heard 4 of an investigating coroner. 5 DR. JAMES CAIRNS: The fact that they 6 haven't met would not be surprising to me. I am saddened 7 to hear if they haven't heard of them because, to the 8 best of my knowledge, these communities still can be 9 accessed by telephone. 10 MR. JULIAN FALCONER: But that's the 11 highest you'd put it, isn't it? 12 DR. JAMES CAIRNS: Yes, but that would 13 still be communication. 14 MR. JULIAN FALCONER: Fair enough. 15 DR. JAMES CAIRNS: Perhaps -- so there 16 shouldn't be reluctance there, but I also am aware that 17 in some of the communities it's going to be the Elders or 18 the Band Chief who are going to speak. 19 So I think there would have to be an 20 education of the local coroner that under these 21 circumstances you may have to have to say, Well, I -- 22 they ca -- if I can't speak to the family, the family 23 have given me permission to speak to the Band Chief. 24 'Cause at least then you could phone up 25 and say, Listen, here's who I am, here's my address, et
2231 cetera, et cetera. 2 MR. JULIAN FALCONER: Thank you for that. 3 I -- I take it you would accept that family members who 4 have lost a child are in an extremely fragile state? 5 DR. JAMES CAIRNS: I'm -- I unfortunately 6 see it far too often. 7 MR. JULIAN FALCONER: And you'd accept 8 that given the fragile state of, for example, parents 9 that it becomes absolutely essential to avoid, at all 10 costs, re-victimizing the parents, agreed? 11 DR. JAMES CAIRNS: Absolutely. 12 MR. JULIAN FALCONER: And -- and I take 13 it you'd agree that a major function of an investigating 14 coroner is to create a means of communication during the 15 death investigation to the family. 16 DR. JAMES CAIRNS: As far as is possible, 17 without interfering with the investigation, the family 18 should be kept up to date with how the investigation is 19 proceeding. 20 MR. JULIAN FALCONER: And assume for a 21 moment that we're not talking about circumstances where, 22 for example, a family member is suspected of perpetrating 23 the crime, all right. 24 DR. JAMES CAIRNS: Right. 25 MR. JULIAN FALCONER: Because I
2241 appreciate your point. But assume we're talking about 2 the death of a baby in which homicide by the parents is 3 not under major suspicion, all right? 4 DR. JAMES CAIRNS: Yes. 5 MR. JULIAN FALCONER: You'd agree with me 6 that contact and communication with that family is an 7 essential part of an investigating coroner's job? 8 DR. JAMES CAIRNS: And that's, in fact, 9 what we tell them; that we want them to communicate with 10 the family early; ideally, face to face, but under these 11 circumstances that may not be possible. And to at least 12 give them their business card or a telephone number; 13 Here's who I am, here's what I'm doing, and here's how 14 you can contact me. Can I have your contact information, 15 and I will try and apprise you of the development of this 16 case, or you can contact me as well. 17 MR. JULIAN FALCONER: And that's in 18 recognition of the reality that, other than the 19 investigating coroner, the only other contact the family 20 could possibly have is with the police, correct? 21 DR. JAMES CAIRNS: I would agree. 22 MR. JULIAN FALCONER: And do you see 23 certain disadvantages to police being investigating 24 coroners in First Nations remote communities? 25 DR. JAMES CAIRNS: Being investigating
2251 coroners, what -- what they would be doing would be 2 collecting the initial information on the ground. 3 MR. JULIAN FALCONER: Right. 4 DR. JAMES CAIRNS: The decision, the 5 autopsy; that would not be their jurisdiction. So they 6 would be physically present on the ground to collect the 7 information that the coroner was not able to collect 8 because they weren't there. But once that was done, the 9 rest of it -- and we're now talking about non-criminally 10 suspicious cases, so we may be talking about a serious 11 illness or an accident -- that is -- is back to -- to the 12 coroner. 13 But I do get your point that there is 14 sensitivity in the First Nations with the fact that the 15 coroner's investigator is someone in uniform. 16 MR. JULIAN FALCONER: And to -- to give 17 some -- some context to this -- and I read these 18 statistics to -- to Dr. McLellan and, given the 19 limitations of time, I'm simply going to go directly to 20 them. 21 You've been provided notice on them -- 22 whereas the national average by way of death due to 23 accident is 6 percent -- that is 6 percent of deaths 24 arise due to accident on a national average -- in the 25 community of Mishkeegogamang, the av -- the percentage is
2261 52 percent. Tat is 52 percent of deaths are due to 2 accident. You -- you recall that I put that to Dr. 3 McLellan? 4 DR. JAMES CAIRNS: I recall you put that 5 to Dr. McLellan. 6 MR. JULIAN FALCONER: You'd agree with me 7 that that's a startling number? 8 DR. JAMES CAIRNS: I would. 9 MR. JULIAN FALCONER: And reflective of a 10 community in some level of despair? 11 DR. JAMES CAIRNS: I would agree 12 entirely. I have written on that aspect. And the 13 Pediatric Death Review Committee's report, that has 14 previously been talked about; one (1) of the issues that 15 we address in that is the disproportionate high rate of 16 suicide among the First Nations, and we go on to give 17 some reasons as to why we think that. 18 And I think that applies for the 19 disproportionate deaths from natural disease, accident, 20 suicide. And homicide I'll leave out because I do -- I'm 21 not -- I don't have enough knowledge on that as to their 22 high rate of homicide. 23 But in natural, accident, suicide; they 24 have a disproportionate number of those, and my feeling 25 is it's all to do with the remote and the other
2271 complications of living in remote with lack of proper 2 resources. 3 MR. JULIAN FALCONER: And, for example, 4 deaths can be due to natural causes relating to disease 5 flowing from polluted waters, correct? 6 DR. JAMES CAIRNS: I'm well aware of 7 Kashechewan. 8 MR. JULIAN FALCONER: Yes. And in the 9 circumstances, the role of an investigating coroner may 10 be more than simply investigating a death for criminally 11 suspicious purposes; it may be about twigging to key 12 systemic factors that can protect the living in the 13 future? 14 DR. JAMES CAIRNS: Correct. And the 15 Walkerton is a very good example where it was tainted 16 water that caused that problem. Perhaps, because it's in 17 a -- an area of the Province where things can be done, 18 that has been accomplished. 19 I'm very much aware of the tainted water 20 in Kashechewan and, although they've been moved out on a 21 number of occasions, that the risks of further water 22 contamination is still there. 23 MR. JULIAN FALCONER: And so a community 24 such as Mishkeegogamang that's never met a investigating 25 coroner is, by definition, deprived of the sys -- type of
2281 systemic review we're talking about, aren't they? 2 DR. JAMES CAIRNS: What -- what -- not so 3 much the -- don't -- don't have to -- have to meet them, 4 that if they're not aware of them or if the coroner is 5 not aware that this recurring on a -- on a repetitive 6 basis, any one (1) person could die of -- of contaminated 7 water. 8 And that was actually happening in 9 Walkerton, and it wasn't until a bright pediatrician saw, 10 Oh, oh, we've got five (5) or six (6) of these that -- 11 that the penny dropped. So one would need that 12 recognition. 13 And some of that recognition may be 14 brought to the attention of the Coroner's Office through 15 the Band Chiefs, who are the ones that are going to 16 realize, we have lost this number of people. 17 MR. JULIAN FALCONER: Do you have any 18 problem with the notion of potential recommendations by 19 the Commissioner in which an investigating coroner might 20 be someone other than a medical practitioner; that is a 21 doctor or a police officer, if properly trained and 22 resourced? 23 DR. JAMES CAIRNS: For remote communities 24 of this nature, I would agree the likelihood of a doctor 25 being available is pretty well negligible on the ground
2291 that the opportunity of a nurse being there is also 2 pretty remote. And given that, it may be well worth 3 having somebody of some nature doing a function. 4 The only snag is, a lot of these are very 5 small communities, and this may be your next-door 6 neighbour. And, certainly, in small communities in 7 Ontario where the doctor may be one (1) of the two (2) 8 doctors in town, and may know the person socially that's 9 died or they may be their patient, they are instructed to 10 call the Chief Coroner's office immediately and not to 11 take the case because there obviously too emotionally 12 involved. 13 And in a very small community of a hundred 14 (100), two hundred (200) people, it's pretty difficult 15 not to have somebody that emotionally involved. But, in 16 theory, yes -- I'm not aware of it happening in -- in 17 Ontario, but if there are examples in other provinces 18 where this works effectively, I personally would be open 19 to that. 20 COMMISSIONER STEPHEN GOUDGE: Sorry, Mr. 21 Falconer. I asked Dr. McLellan a question about 22 servicing of remote First Nations communities. 23 Dr. Cairns, in terms of, if I can put it 24 this way, the investigating coroner using surrogate 25 investigators; a police officer or someone else.
2301 I gather from his evidence that there are 2 no guidelines for onsite investigation, let us say, in 3 criminally suspicious deaths. 4 Would it be a good idea if there were? 5 DR. JAMES CAIRNS: I have had 6 considerable experience with regard criminally suspicious 7 deaths. And when there's criminally suspicious deaths 8 involved, the Ontario Provincial Police are normally 9 called in and that will necessitate -- 10 COMMISSIONER STEPHEN GOUDGE: It would -- 11 - sorry. 12 DR. JAMES CAIRNS: -- a site visit by the 13 OPP. It may not necessit -- may not get a local coroner 14 going because that local coroner will be working in a 15 small community in the north, where if he goes for two 16 (2) days, all of his of his patients die in the other 17 community. 18 COMMISSIONER STEPHEN GOUDGE: I guess 19 what I'm getting is when the OPP go in as surrogates 20 for -- 21 DR. JAMES CAIRNS: Yes. 22 COMMISSIONER STEPHEN GOUDGE: -- the 23 pathologist, because in southern Ontario the pathologist 24 would conduct the site visit, or at the least the coroner 25 would.
2311 DR. JAMES CAIRNS: Correct, Commissioner. 2 COMMISSIONER STEPHEN GOUDGE: In terms of 3 things like taking photographs of the body and doing the 4 kinds of external examinations on site that are done by a 5 medically trained person in southern Ontario, are there 6 any guidelines for the OPP in remote First Nation's 7 communities or remote communities generally? 8 DR. JAMES CAIRNS: To that? 9 COMMISSIONER STEPHEN GOUDGE: Yes. 10 DR. JAMES CAIRNS: Yes, there is. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 Thanks. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 MR. JULIAN FALCONER: One (1) other area, 16 Dr. Cairns. In reviewing the -- the curriculum vitae of 17 -- of Dr. Young, and the Commissioner has already heard 18 evidence about this, you'd agree with me that a key 19 component to spotting problems within the system, whether 20 it's access to services in remote communities and 21 competent death investigations in remote communities or 22 competent death investigations in urban communities, 23 accountability in oversight is a key piece of that 24 picture. 25 Would you agree with that?
2321 DR. JAMES CAIRNS: I would agree with 2 that. 3 MR. JULIAN FALCONER: And would you agree 4 with me that the role of Assistant Deputy Minister is 5 meant, in part, to ensure that there's a degree of 6 ministerial oversight over, for example, the Office of 7 the Chief Coroner? 8 DR. JAMES CAIRNS: That's correct. The 9 Office of the Chief Coroner has always reported to the 10 equivalent of an Assistant Deputy Minister. It now 11 happens to be a Commissioner of Public Safety, but it 12 very much is similar; that there is an oversight or a 13 reporting. 14 The Chief Coroner will report to the 15 Assistant Deputy Minister. 16 MR. JULIAN FALCONER: In this case, Dr.-- 17 DR. JAMES CAIRNS: And it's -- it's more 18 in regard to government policy, et cetera; the Assistant 19 Deputy Minister is not going to say, Why did you call an 20 inquest into that prison death -- 21 MR. JULIAN FALCONER: Mm-hm. 22 DR. JAMES CAIRNS: -- so it's not going 23 to be interfering with the day-to-day work. But on an 24 overall accountability, et cetera, that is a role, yes. 25 MR. JULIAN FALCONER: And Dr. Young, in
2331 addition to being Chief Coroner from March 1990 to April 2 2004, for those fourteen (14) years he was also Assistant 3 Deputy Minister from June 1994 to April 2002. 4 Is that correct? 5 DR. JAMES CAIRNS: That's correct. 6 MR. JULIAN FALCONER: And after that, he 7 was Commissioner of Public Safety and Security from June 8 2002 to April 2004, correct? 9 DR. JAMES CAIRNS: Correct. 10 MR. JULIAN FALCONER: And in respect of 11 both those portfolios -- both Assistant Deputy Minister 12 and Commissioner of Public Safety -- the theory is that 13 the Chief Coroner is supposed to be accountable to those 14 two (2) titles, yes? 15 DR. JAMES CAIRNS: Correct. 16 MR. JULIAN FALCONER: So that, in 17 essence, the way the system was operating for some ten 18 (10) years, Dr. Young was accountable to himself. 19 DR. JAMES CAIRNS: Correct. 20 MR. JULIAN FALCONER: Those are my 21 questions, thank you. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 23 Falconer. Ms. Fraser...? 24 While Ms. Fraser's coming up, let me just 25 ask you a question about organization within government,
2341 Dr. Cairns. 2 Does the Office of the Chief Coroner have 3 a budget envelope within which the office is free to 4 spend as it wishes, or does the Solicitor General's 5 Ministry control line-by-line expenditure? 6 DR. JAMES CAIRNS: It's a combination of 7 both and they've argued that they want to give us a fixed 8 budget. 9 COMMISSIONER STEPHEN GOUDGE: What I 10 would call an envelope? 11 DR. JAMES CAIRNS: Yes, the argument back 12 is, we can't control how many people die so, therefore, 13 it's mandated that if we have -- if we investigate, on an 14 average year, twenty thousand (20,000) deaths; if we have 15 thirty thousand (30,000) deaths that year, they must give 16 us the mandate to do those thirty thousand (30,000) 17 deaths. 18 They may say, Well, you're spending far 19 too much money and so they're going to have to cut 20 something. Well, then we're going to have to say, We 21 have to cut something that we consider of least 22 significance. And at one (1) stage in the early '90s -- 23 in fact, at a number of stages they said, Hey, we can't 24 go over your budget. 25 I said, Well, we've got a mandate -- we've
2351 got a mandate to investigate the death, that's the number 2 first. We -- the -- we have a secondary volunteer 3 mechanism, should we hold an inquest or should we not, so 4 if you're going to cut us, then the first thing we cut 5 are inquests because they're not essential to answering 6 the five (5) questions, so we'll give up the inquests. 7 In fact, I can remember we agreed to do 8 that. And on a Friday night Dr. Young and I were out and 9 we got a phone call from a newly appointed government 10 saying, There's been a TCC crisis, what the hell are we 11 going to do about that? 12 I said, Well we've got coroners, et cetera 13 on the scene, and if there's not a criminal issue, we'll 14 hold an inquest. I'm well aware that Dr. Young went back 15 to a senior management meeting on Monday and said, What 16 about the cutting off of the inquest? Oh, oh, forget 17 that for now. 18 So, much of what we do is legislated. Now 19 I think where issues are occurring, and they're going to 20 occur more and more, the argument when we were doing 21 Deaths Under Two and Deaths Under Five, we initially did 22 a babygram, which cost next to nothing. 23 We now do full skeletal surveys, up goes 24 the money. We do full -- full toxicology, and we're 25 saying, I'm sorry, those are essential. As science
2361 progresses, to do these jobs properly, we -- we need to 2 do that. So it's driven by the deaths and it's driven by 3 what you have to do to do a proper investigation. 4 COMMISSIONER STEPHEN GOUDGE: Okay. Let 5 me ask a very simple type question. Who sets the salary 6 levels for salaried pathologists at the OCCO? 7 DR. JAMES CAIRNS: Cabinet. 8 COMMISSIONER STEPHEN GOUDGE: So that's a 9 governmental function? 10 DR. JAMES CAIRNS: That's -- 11 COMMISSIONER STEPHEN GOUDGE: That's not 12 something the OCCO can set within an envelope that 13 they've been given? 14 DR. JAMES CAIRNS: Oh, we'd love to. 15 COMMISSIONER STEPHEN GOUDGE: I take it 16 the answer is "No, but we'd love to"? 17 DR. JAMES CAIRNS: Yes. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 Thanks. Sorry, Ms. Fraser, that doesn't come off your 20 time. 21 22 CROSS-EXAMINATION BY MS. SUZAN FRASER: 23 MS. SUZAN FRASER: Thank you, Mr. 24 Commissioner. Thank you for the second part of that as 25 well. Dr. Cairns, my name is Sue Fraser, and I'm here
2371 today on behalf of DCI, which is called Defence for 2 Children International Canada. 3 Which is an international grassroots 4 organization founded in 1979 and based in Geneva. And 5 its mission is to promote and protect the rights of the 6 child. And I have some questions about the Paediatric 7 Death Review Committee on behalf of my client today. 8 And we've heard from you that that 9 Committee was created in 1989? 10 DR. JAMES CAIRNS: That's correct. 11 MS. SUZAN FRASER: All right. And you 12 stated yesterday that you made a decision, as a result of 13 the Child Mortality Task Force, to add cases where there 14 was an open CAS file. 15 Is that fair? 16 DR. JAMES CAIRNS: That's correct. 17 MS. SUZAN FRASER: All right. And I 18 think your evidence on that point was that you made that 19 decision arbitrarily? That was your decision to do that? 20 DR. JAMES CAIRNS: I monitored the 21 temperature of the room and thought it was the 22 appropriate answer. 23 MS. SUZAN FRASER: All right. And 24 yesterday you stated that the Child Mortality Task Force 25 was released in 1996. And I had understood from the
2381 documents that we have received, that was in March of 2 1997? 3 DR. JAMES CAIRNS: I will stand to be 4 corrected. 5 MS. SUZAN FRASER: All right. And just - 6 - I won't turn you to it, Commissioner, but there is a 7 PFP number 039972 where you'll find that reference. And 8 the final report -- there was an interim report, you'll 9 recall, and a final report? 10 I'm correct on that? 11 DR. JAMES CAIRNS: That's correct. 12 MS. SUZAN FRASER: And the final report 13 came out in June of 1997? 14 DR. JAMES CAIRNS: Correct. 15 MS. SUZAN FRASER: All right. And that - 16 - that period of time -- sorry, the interim report 17 actually reported that you had agreed in September of 18 1996 to have the Paediatric Death Review Committee review 19 cases where there had been an open Children's Aid Society 20 file, so that actually was incorporated into the Child 21 Mortality Task Force. Do you recall that? 22 DR. JAMES CAIRNS: Yes. 23 MS. SUZAN FRASER: All right. Now the 24 Child Mortality Task Force told us that there would be a 25 number of inquests coming up in the spring of 1997; it
2391 actually referenced to a number of upcoming inquests? 2 DR. JAMES CAIRNS: I think it made 3 reference to approximately six (6) inquests, which we 4 felt, with them all, would deal with syst -- whatever 5 systemic issues were giving concern about why children 6 were dying while they were being monitored by a 7 Children's Aid Society. 8 MS. SUZAN FRASER: All right. And the 9 report also indicated... 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER STEPHEN GOUDGE: Okay, Ms. 14 Fraser. 15 16 CONTINUED BY MS. SUZAN FRASER: 17 MS. SUZAN FRASER: In any event, that 18 report told us that in the course of a year one hundred 19 (100) children died in the care of the CAS. 20 Do you recall that? 21 DR. JAMES CAIRNS: I do. 22 MS. SUZAN FRASER: And you'll recall that 23 it also told us that twelve (12) children in the care of 24 the CAS died as a result of homicide? 25 DR. JAMES CAIRNS: That's correct.
2401 MS. SUZAN FRASER: And that statistic 2 attracted considerable attention and the following the -- 3 and I -- I expect that you'll recall the series of events 4 -- that following your interim report, the Toronto Star 5 ran an article or an editorial calling for mandatory 6 inquest where a child dies while in the care of the 7 Children's Aid Society. 8 Do you recall that? 9 DR. JAMES CAIRNS: I do. 10 MS. SUZAN FRASER: All right. So in 11 March of 1997, there was considerable pressure around 12 children who were in the care of the CAS and the need for 13 those deaths to be reviewed? 14 DR. JAMES CAIRNS: Correct. 15 MS. SUZAN FRASER: All right. And so it 16 was your reaction to that, although it had been announced 17 earlier, so I'm trying to figure out whether this was 18 part of the response knowing that, or whether this came 19 after the release of the Child Mortality Task Force? 20 'Cause I'd sort of understood your 21 evidence that the report was released, there was a 22 reaction to it, and you made this decision rather 23 arbitrarily to add these cases to the Pediatric Death 24 Review Committee. 25 But having looked at the -- the Child
2411 Mortality Task Force, it appears to be a sort of 2 consideration of part of that report? 3 DR. JAMES CAIRNS: I think in the Joint 4 Mortality Task Force it was recommendation -- and correct 5 if I'm wrong -- and as this progressed, I decided there 6 wasn't going to be recommendation, it was going to be, in 7 fact, implemented. 8 MS. SUZAN FRASER: All right. And you'll 9 agree with me that at that time there were no more than a 10 hundred (100) inquests a year for the Province of the On 11 -- of Ontario, is that fair -- a fair...? 12 DR. JAMES CAIRNS: Yes, the average is 13 about ninety (90) per year, yes. 14 MS. SUZAN FRASER: All right. And had 15 you had to call inquest into a child's death where they 16 were in the care of the CAS, that would effectively 17 double the number of inquests that you would have had to 18 hold? 19 DR. JAMES CAIRNS: If we had to call an 20 inquest into every single one of them, on a mandatory 21 basis, yes, it would. 22 MS. SUZAN FRASER: All right. And the -- 23 in your view, the Pediatric Death Review Committee 24 reviewing these deaths would provide the public the 25 scrutiny that the deaths deserved.
2421 Is that fair? 2 DR. JAMES CAIRNS: It would divi -- it 3 would help the scrutiny, and it would also help to focus 4 in on some of those deaths that, despite that review, 5 would definitely still require an inquest. 6 MS. SUZAN FRASER: All right. And you've 7 indicated to the Commissioner that the Pediatric Death 8 Review Committee has a number of child welfare experts on 9 it. And I just -- I'd ask that the Registrar turn up 10 PFP057188, which is the Pediatric Death Review Committee. 11 And if we could have page 29, please? And 12 I don't know if we can have it enlarged a little, but 13 just looking at the constitution of that committee, Dr. 14 Cairns, I see Susan Abell -- or Ab -- Abell. 15 DR. JAMES CAIRNS: Susan Abell. 16 MS. SUZAN FRASER: Able. She is listed 17 as a child welfare consultant? 18 DR. JAMES CAIRNS: Correct. 19 MS. SUZAN FRASER: All right. But for 20 much of the period of time that she sat on the committee, 21 she was director of the Ottawa Children's Aid Society. 22 Is that fair? 23 DR. JAMES CAIRNS: That's not correct. 24 As soon as she became the Director of the Children's Aid 25 Society in Ottawa, she resigned from the committee. So,
2431 at no time, when she was on the committee was she 2 actively in a Children's Aid Society. 3 MS. SUZAN FRASER: I'm -- I'm wondering 4 then -- perhaps if the Registrar can call up PFP135232. 5 I'm sorry -- 135232. So I'm just looking -- this is a 6 letter from Ms. Able to you in -- in August of 2000. 7 Was she not on the Pediatric Death Review 8 Committee at that time? 9 DR. JAMES CAIRNS: No, she wasn't. She 10 was -- sorry, she was the Director of the Ottawa 11 Children's Aid Society. 12 MS. SUZAN FRASER: Yes. 13 DR. JAMES CAIRNS: There had been a death 14 of a child who was being supervised by that society. The 15 committee had reviewed that death and when we review the 16 death we send a copy of the report of that committee to 17 the Director of the Society involved, to the Assistant 18 Deputy Minister -- 19 MS. SUZAN FRASER: Yes. 20 DR. JAMES CAIRNS: -- and to the Regional 21 Supervising Coroner. So this is her as a director of 22 that unit responding to the recommendations that we had 23 forwarded to her. 24 MS. SUZAN FRASER: All right. But you'll 25 agree with me that her experience and her expertise comes
2441 from within a Children's Aid Society? 2 DR. JAMES CAIRNS: Her training in her 3 work resulted in her being active in the field of child 4 welfare in Children's Aid, correct. 5 MS. SUZAN FRASER: All right, so the 6 answer is "yes." 7 DR. JAMES CAIRNS: Yes to what? 8 MS. SUZAN FRASER: Whether her experience 9 comes from being a part of the children -- her experience 10 is directly related to Children's Aid Society. 11 DR. JAMES CAIRNS: To her knowledge from 12 working with Children's Aid, correct. 13 MS. SUZAN FRASER: All right. And she's 14 now retired. 15 DR. JAMES CAIRNS: She's retired from the 16 Ottawa Children's Aid Society. 17 MS. SUZAN FRASER: All right. 18 DR. JAMES CAIRNS: And when she retired 19 from the Child or Children's Aid Society, she rejoined 20 the committee -- 21 MS. SUZAN FRASER: I see. 22 DR. JAMES CAIRNS: -- as a consultant. 23 MS. SUZAN FRASER: And Sandy Moshenko -- 24 just going back to the constitution of the committee, 25 which is at PFP057188, page 29, please. Sandy Moshenko,
2451 much of her experience -- she's with the Ontario 2 Association of Children's Aid Societies. 3 DR. JAMES CAIRNS: When she joined our 4 committee, she was with the Ontario Association of 5 Children's Aid Societies. 6 MS. SUZAN FRASER: All right, and that's 7 a body that represents Children's Aid Societies? 8 DR. JAMES CAIRNS: It is. 9 MS. SUZAN FRASER: All right, and then 10 she went to the Waterloo Children's Aid Society, as I 11 understand it? 12 DR. JAMES CAIRNS: That's correct. 13 MS. SUZAN FRASER: All right, and she is 14 now retired. 15 DR. JAMES CAIRNS: She's retired and she 16 -- she's now back on the committee. 17 MS. SUZAN FRASER: All right. And 18 Jeanette Lewis is the Executive Director of the Ontario 19 Children's Aid Society, as it states here. 20 DR. JAMES CAIRNS: That's correct. 21 MS. SUZAN FRASER: All right, and Zel 22 Fellegi is someone who's involved in Children's Mental 23 Health. 24 DR. JAMES CAIRNS: That's correct. 25 MS. SUZAN FRASER: And wouldn't you be
2461 concerned, Dr. Cairns, that based on the experience of 2 those people that it looks that you have representative 3 of Children's Aid Societies investigating Children's Aid 4 Societies? 5 DR. JAMES CAIRNS: I'm no more concerned 6 about that than I am that we have six (6) or seven (7) 7 doctors on the committee investigating doctors. 8 There is a -- I don't know of a better way 9 to investigate what goes on in a hospital among doctors, 10 than to have fellow doctors investigate them; providing 11 the people who are doing it are ethical and providing if 12 the investigation into the chil -- the child's death, for 13 the sake of discussion, happened in the Guelph Hospital, 14 that the medical member of the committee from Guelph do 15 not attend that meeting and have no influence in it. 16 One can certainly get away from that, and 17 if we want to investigate medical deaths in hospital with 18 no doctors, I think every doctor who's under concern 19 would be delighted, because they'll pull the wool over 20 everybody's eyes. 21 MS. SUZAN FRASER: All right. So, you do 22 -- you don't agree with me on that point. 23 DR. JAMES CAIRNS: I don't. 24 MS. SUZAN FRASER: But you would have 25 other options; the Child Advocate for the Province of
2471 Ontario, she wasn't asked to be part of the Paediatric 2 Death Review Committee. 3 DR. JAMES CAIRNS: Advocate is a word -- 4 MS. SUZAN FRASER: Yes. 5 DR. JAMES CAIRNS: -- and obviously it's 6 an advocate. This is meant to be neutral, basing things 7 on what is found in each case. 8 MS. SUZAN FRASER: You understand that 9 the Office of Child and Family Service Advocacy had 10 direct knowledge of the conditions in which children 11 lived in, in the care of the State; that would have been 12 part of their mandate? 13 DR. JAMES CAIRNS: And if we required 14 that knowledge, we would ask for it. 15 MS. SUZAN FRASER: And did you ever seek 16 it out? 17 DR. JAMES CAIRNS: On a number of 18 occasions -- 19 MS. SUZAN FRASER: Yes. 20 DR. JAMES CAIRNS: -- they were granted 21 standing at inquests. 22 MS. SUZAN FRASER: But the Paediatric 23 Death Review Committee never invited the advocate to come 24 or did invite the advocate to come? 25 DR. JAMES CAIRNS: The Paediatric Review
2481 Committee discussed and they did not feel that there -- 2 that they -- since they were an advocate; that was, by 3 definition, not a neutral party and it was appropriate 4 for an advocate to join the committee. 5 MS. SUZAN FRASER: Isn't it fair to say 6 that a Crown attorney also comes at it this -- the 7 committee from a particular perspective; their 8 perspective of being someone who prosecutes? 9 DR. JAMES CAIRNS: The Crown attorney who 10 was there was one (1) of the Crowns who were attached to 11 your office and were there to give us legal advice; not 12 with regard -- but what -- what would be the legal 13 interpretation of this or that. They were not there 14 advocating in terms of criminal prosecutions. 15 MS. SUZAN FRASER: All right. And you 16 don't think -- I'm just looking at the constitution of 17 the non-medical people; you have police officers, you 18 have Children's Aid Society, people with Children's Aid 19 Society affiliations, and you have a Crown attorney. 20 Would you not be conclude that -- be 21 concerned that even those these people may be multi -- 22 multi-disciplinary, that they may be too like-minded? 23 DR. JAMES CAIRNS: I think the fact that 24 we have physicians, child welfare experts, police 25 officers, and legal is, in fact, ensuring that we've got
2491 a multi-discipline committee. 2 And I can assure you that the people, if 3 they come up with one (1) comment, that they will be 4 fairly attacked by the people in the other disciplines to 5 ensure that that is not the situation. 6 MS. SUZAN FRASER: So you don't feel that 7 the Children's Aid Society is insulated review -- from 8 review by this Committee? 9 DR. JAMES CAIRNS: I think the results 10 speak for themselves. 11 MS. SUZAN FRASER: All right. But, of 12 course, in terms of the results, all that we have 13 publically from the committee is a report in 2004 and the 14 report in 2007? 15 DR. JAMES CAIRNS: And that is, and I've 16 already mentioned, that that was a resourcing problem 17 that we were, in fact, giving to the Ministry as report 18 on every single death. They were meant to -- to tabulate 19 it and to bring out themes, et cetera. 20 They recognized they couldn't do it. We 21 offered to do it as a independent of the Children's 22 Ministry, but we said we can't do it without funding. 23 They did give us funding of one hundred thousand dollars 24 ($100,000) which allowed us to hire someone that would 25 help with that. And it allowed us to put out the first
2501 comprehensive report that had ever been put out in the -- 2 wasn't it last year -- no, this year. 3 MS. SUZAN FRASER: Right. 4 DR. JAMES CAIRNS: And that report was 5 done by our office. The Children's Ministry said that 6 they were always muzzled by protection of information. 7 And the Children's Aid Society say they were muzzled by 8 privacy rights. 9 We indicated that if we took all the 10 deaths, we should be able to pull out the systemic issues 11 without identifying the individual death and, therefore, 12 reserve the privacy rights. 13 Before that report came out, I have -- 14 and, in fact, when I gave that report in -- in June, most 15 of the Children's Aid people, the Ministry, and the 16 public, were surprised that there were eighty-five (85) 17 deaths a year with Children's Aid. 18 And when you say that as a number, it 19 sounds horrible. But this Committee was able to break 20 them down into the number that were medically fragile 21 children where it was nothing to do with them; the number 22 of accidental deaths that were nothing to do with the 23 monitoring. 24 I was able to put a proper perspective on 25 focussing on those cases where we felt that the actual
2511 actions or inactions of the Children's Aid Society played 2 a role in the death. 3 MS. SUZAN FRASER: I think -- I think the 4 report stands for itself, Dr. Cairns. But I think you 5 can agree with me on this point; that there is not an 6 annual review of the number of children who die in the 7 care of the State. 8 Is that fair? 9 DR. JAMES CAIRNS: That's exactly what 10 we're doing. 11 MS. SUZAN FRASER: All right. You're not 12 investigating -- the Committee, as it stands now, does 13 not have a mandate to investigate the death of children 14 in residential mental health facilities, does it not? It 15 does not have that mandate as you've stated it? 16 DR. JAMES CAIRNS: Unless it under the 17 mandate, no, it doesn't. 18 MS. SUZAN FRASER: All right. And it 19 doesn't have a mandate to review children who die in open 20 custody? 21 DR. JAMES CAIRNS: Define "open custody" 22 for me? 23 MS. SUZAN FRASER: It's a -- well, if 24 you're a young -- a young person who's deta -- who's 25 ordered into custody under the Youth Criminal Justice
2521 Act, you either are in secure custody or in open custody, 2 which is a group home-like setting. 3 DR. JAMES CAIRNS: It does not. 4 MS. SUZAN FRASER: All right. Now -- and 5 I think that you can agree with me that it would be 6 better for there to be a review that is transparent, and 7 -- so that people can understand, case by case, how 8 children come to their end? 9 DR. JAMES CAIRNS: And on an individual 10 basis, one will be conflicting with privacy rights. It 11 is felt that what we do is, we -- we individually review 12 those, they are forwarded back to the appropriate 13 authorities for the attention of that particular 14 authority. 15 And, if we find that this is a recurring 16 theme, then, by putting out our report, we're able to 17 give the salient concerns of that to others. And it is 18 very similar to what doctors do when they read the 19 College of Physicians and Surgeons stuff. Let me learn 20 from somebody el -- else's mistake rather than our own. 21 And prior to this report coming out, if we 22 sent a report to a Children's Aid Society indicating, We 23 don't think you did proper monitoring of the home 24 conditions in -- including the type of crib that was 25 being used, that society might improve its actions in
2531 that. 2 But that vital information was not being 3 shared anywhere else because of privacy. And in this 4 way, we are publicly able to give it out to everyone. 5 MS. SUZAN FRASER: That's right, but that 6 -- but in fairness, the public had to wait. The public 7 had to wait for fifteen (15) years for this information 8 to be shared; till 2004, correct? 9 DR. JAMES CAIRNS: If you want to talk to 10 the people who supply the money -- I've been after this 11 for years. 12 MS. SUZAN FRASER: Okay. So you'd agree 13 with me that we shouldn't have to wait fifteen (15) years 14 for this information, correct? 15 DR. JAMES CAIRNS: Correct. 16 MS. SUZAN FRASER: And it would be 17 helpful rather than the particulars of a -- of the 18 private particulars of a case to be reviewed -- for, at 19 very least, the recommendations made by Pediatric Death 20 Review Committee to be made publicly and in a timely 21 fashion? 22 DR. JAMES CAIRNS: And that's exactly 23 what we are now attempting to do. We're just scraping 24 by, but all the recommendations that go to the individual 25 societies, we go through them, and when we see a
2541 recurring theme, then we put those in. Those are the 2 systemic recommendations. 3 We do the same for the medical ones, as 4 well, and we can go that more detailed if we're provided 5 extra funding. I can tell you that, as I sit here, 6 although it will not be my responsibility since I'm 7 retiring in January, but, presently, our funding from the 8 Children's Ministry is up as of the 31st of March. 9 If that is not renewed, there won't be any 10 reporting. 11 MS. SUZAN FRASER: All right. But you'll 12 agree with me that the fact that these reports be made in 13 a timely fashion and publicly is critical in terms of 14 protecting the young people who are in the care of the 15 State? 16 DR. JAMES CAIRNS: Absolutely. 17 MS. SUZAN FRASER: All right. And you'll 18 agree with me also -- 19 COMMISSIONER STEPHEN GOUDGE: You are 20 into injury time, Ms. Fraser. 21 MS. SUZAN FRASER: I actually -- injury 22 time, I understand the rugby metaphor. But I -- I will 23 finish up in -- in forty (40) seconds, if I may, Mr. -- 24 Mr. Commissioner? 25
2551 CONTINUED BY MS. SUZAN FRASER: 2 MS. SUZAN FRASER: You will agree with me 3 that it is important, in order for us to prevent future 4 deaths, for us to understand and for all agencies to 5 understand how children die? 6 DR. JAMES CAIRNS: That's the precise 7 purpose for what -- for why this committee is doing it. 8 We can't prevent the death, but perhaps we can learn 9 lessons from the death and prevent them in the future. 10 And, certainly, the big drive we have on now is the 11 number of children who are dying in unsafe sleeping 12 environments. 13 And we have been pushing that with 14 Children's Aid now, and public, so our mandate is exactly 15 the same mandate as you're suggesting. 16 MS. SUZAN FRASER: Except it happens in a 17 different form that I'd like it to happen. 18 DR. JAMES CAIRNS: Well, you -- 19 MS. SUZAN FRASER: And you and I will 20 disagree on that point. 21 DR. JAMES CAIRNS: Yes. 22 MS. SUZAN FRASER: Thank you, Mr. 23 Commissioner. 24 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 25 Fraser.
2561 Okay, that concludes today. Tomorrow we 2 will start with you, Mr. Manuel for Ontario, and then Mr. 3 Carter for the hospital. Then perhaps the CPSO, if they 4 appear. They appear not to be appearing. 5 And then back to you, Mr. Gover, and then 6 Commission Counsel. We will probably, with any luck and 7 expedition, finish well before lunch tomorrow. And then 8 I have said we will begin Dr. Young sharp at two o'clock 9 tomorrow. So you can make your schedules accordingly. 10 We will rise then until 9:30 tomorrow 11 morning. 12 13 --- Upon adjourning at 4:30 p.m. 14 15 16 Certified Correct 17 18 19 ___________________ 20 Rolanda Lokey - a.m 21 22 ____________________ 23 Sean Coleman - p.m. 24 25