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 29th 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 7 8 Brian Gover ) Office of the Chief Coroner 9 Luisa Ritacca ) for Ontario 10 Teja Rachamalla 11 12 Jane Langford ) Dr. Charles Smith 13 Niels Ortved (np) ) 14 Erica Baron ) 15 Grant Hoole (np) ) 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 3 Mara Greene (np) ) Criminal Lawyers' 4 Breese Davies (np) ) Association 5 Joseph Di Luca ) 6 Jeffery Manishen (np) ) 7 8 James Lockyer (np) ) William Mullins-Johnson, 9 Alison Craig ) Sherry Sherret-Robinson and 10 Phil Campbell ) seven unnamed persons 11 12 Peter Wardle ) Affected Families Group 13 Julie Kirkpatrick (np) ) 14 Daniel Bernstein ) 15 16 Louis Sokolov ) Association in Defence of 17 Vanora Simpson (np) ) the Wrongly Convicted 18 Elizabeth Widner (np) ) 19 Paul Copeland (np) ) 20 21 Jackie Esmonde (np) ) Aboriginal Legal Services 22 Kimberly Murray (np) ) of Toronto and Nishnawbe 23 Sheila Cuthbertson (np) ) Aski-Nation 24 Julian Falconer (np) ) 25
41 APPEARANCES (cont'd) 2 3 Suzan Fraser Defence for Children 4 International - Canada 5 6 William Manuel ) Ministry of the Attorney 7 Heather Mackay (np) ) General for Ontario 8 Erin Rizok (np) ) 9 Kim Twohig (np) ) 10 11 Natasha Egan (np) ) College of Physicians and 12 Carolyn Silver (np) ) Surgeons 13 14 Michael Lomer ) For Marco Trotta 15 Jaki Freeman (np) ) 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. William Manuel 6 7 Cross-Examination by Mr. William Carter 27 8 Cross-Examination by Mr. Brian Gover 81 9 10 JAMES GORDON YOUNG, Sworn 11 Examination-In-Chief by Mr. Mark Sandler 87 12 13 14 Certificate of transcript 197 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 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Mr. Manuel...? 7 8 CROSS-EXAMINATION BY MR. WILLIAM MANUEL: 9 MR. WILLIAM MANUEL: Thank You, 10 Commissioner. Dr. Cairns, my name is Bill Manuel. I 11 have a few questions in respect of the relationship 12 between you and the Office of the Chief Coroner and Crown 13 attorneys, who I represent in this matter. 14 DR. JAMES CAIRNS: Yes. 15 MR. WILLIAM MANUEL: Okay. Crown 16 attorneys don't get to pick the pathologist on a case, do 17 they? 18 DR. JAMES CAIRNS: They do not. 19 MR. WILLIAM MANUEL: They're -- when they 20 get the case, the pathologist has been assigned, and he's 21 done his report, or not, as the case may be, and they 22 take the case from there, correct? 23 DR. JAMES CAIRNS: That's correct. 24 That's correct. 25 MR. WILLIAM MANUEL: In the 1980s and
71 '90s, as I understand it, Dr. Smith was presented to 2 Crown attorneys as a leading Paediatric Forensic 3 Pathologist in Canada, correct? 4 DR. JAMES CAIRNS: That's correct. 5 MR. WILLIAM MANUEL: And in fact, you 6 presented him as such at Crown attorney's conferences? 7 DR. JAMES CAIRNS: That's correct. 8 MR. WILLIAM MANUEL: Now you indicated in 9 your evidence that the only concerns expressed to you by 10 Crown attorneys were first, delay. 11 And secondly, changing his opinion from 12 what was told to them orally, as opposed to what he said 13 on the stand, correct? 14 DR. JAMES CAIRNS: Yes, that's correct. 15 MR. WILLIAM MANUEL: Let's look at delay, 16 first of all. Delay is a double-edged problem because it 17 may result in delay and exonerating the innocent, 18 correct? 19 DR. JAMES CAIRNS: Correct. 20 MR. WILLIAM MANUEL: And it also may 21 result in a failure of justice, perhaps, or a failure to 22 have charges decided on the merits if they're in fact 23 stayed because of delay, correct? 24 DR. JAMES CAIRNS: Correct. 25 MR. WILLIAM MANUEL: And that in fact
81 came to pass in this case with Dr. Smith. 2 DR. JAMES CAIRNS: That's correct. 3 MR. WILLIAM MANUEL: So that was a 4 significant problem presented to you by Crown attorneys 5 and you appreciated it as such, didn't you? 6 DR. JAMES CAIRNS: The -- 7 MR. WILLIAM MANUEL: Delay. 8 DR. JAMES CAIRNS: The delay, yes. 9 MR. WILLIAM MANUEL: Right. And apart 10 from Dr. Smith, whose responsibility was it, in your view 11 or in the view of your office, to ensure that Dr. Smith 12 gave his reports in a timely manner? 13 DR. JAMES CAIRNS: When I was notified I 14 would get in touch with Dr. Smith and tell him to get his 15 report done. 16 MR. WILLIAM MANUEL: Did that work? 17 DR. JAMES CAIRNS: To a limited -- to -- 18 to a limited extent. 19 MR. WILLIAM MANUEL: So -- 20 DR. JAMES CAIRNS: But I would usually be 21 the last person that have gone through with the -- 22 probably the exception of -- of a warrant to go to Court. 23 It would well -- but normally it would be the 24 investigating officer who would contact Dr. Smith and say 25 we need your report.
91 And usually if that failed, then the Crown 2 on the case would try and contact Dr. Smith -- Dr. -- 3 excuse me, Dr. Smith, and if that didn't work, then I 4 would probably be the next one that they would try could 5 I would persuade him to -- for goodness sake, get your 6 report in. 7 MR. WILLIAM MANUEL: Well, I just want to 8 know, did you consider that your office had a 9 responsibility to ensure that Dr. Smith provided his 10 reports in a timely fashion? 11 DR. JAMES CAIRNS: As -- as much as we 12 could, yes. 13 MR. WILLIAM MANUEL: Well, what -- what 14 is it that you could or couldn't do? 15 DR. JAMES CAIRNS: Well, he wasn't an -- 16 an employee -- sorry. He wasn't a direct employee of our 17 office, so all we could do is say, look, get it; 18 otherwise you're going to end up with another subpoena to 19 go to Court with your report. 20 MR. WILLIAM MANUEL: And that's in fact 21 the -- the recourse that a number of Crown attorneys had 22 to compel Dr. Smith to produce a report, correct? 23 DR. JAMES CAIRNS: That is -- that is 24 correct, yes. 25 MR. WILLIAM MANUEL: But other than
101 exhortation, I take it that -- that was the only 2 effective means of compelling a report from Dr. Smith. 3 DR. JAMES CAIRNS: That's correct, 4 because he was not our employee. 5 MR. WILLIAM MANUEL: And let's look at 6 the issue of changing his opinion from what the Crown 7 attorney understood him to say outside Court, as opposed 8 to what he said in Court, that's a significant problem 9 for the Administration of Justice, isn't it? 10 DR. JAMES CAIRNS: Yes, it is. 11 MR. WILLIAM MANUEL: And that was brought 12 to your attention? 13 DR. JAMES CAIRNS: It was brought to my 14 attention insofar as they would say on occasions he would 15 be stronger in his opinion when he would be talking at an 16 early stage and then he would weaken that opinion in -- 17 in Court. 18 MR. WILLIAM MANUEL: And how often was 19 that brought to your attention? 20 DR. JAMES CAIRNS: A -- a number of 21 times; I'd say probably at least four (4) to five (5) 22 times. When spoken to he would say, Well, I gave that 23 opinion at that time with the knowledge I had and 24 subsequently as a result of additional pieces of 25 information that I analysed I -- I was changing my
111 opinion. 2 MR. WILLIAM MANUEL: That -- that's -- 3 DR. JAMES CAIRNS: My -- my comment would 4 be, Well, it would have been -- if that's the case, it 5 would have been much more appropriate if you had 6 contacted the Crown prior to that and say, listen, I did 7 give you an oral opinion two (2) months ago indicating 8 this is what I thought. 9 As a result of additional items I have now 10 learned, I -- I am now changing my opinion. I'm also 11 aware that there were occasions, and I think this can 12 happen with any witness where in cross-examination as a 13 result of questions put to him by the defence he -- he 14 changed his opinion. 15 MR. WILLIAM MANUEL: But that wasn't the 16 complaint that the Crown attorneys had. The complaint 17 the Crown attorneys had was his evidence-in-chief was 18 different. 19 DR. JAMES CAIRNS: It was; you're quite 20 right. 21 MR. WILLIAM MANUEL: Correct. And didn't 22 his explanation for this sort of run a little thin after 23 the fourth or fifth time? 24 DR. JAMES CAIRNS: They were -- at 25 different times I told him that, you know, you -- you
121 should make sure that the Crown knows what you're going 2 to say. 3 MR. WILLIAM MANUEL: But didn't you 4 consider it was your responsibility to ensure the Crown 5 knew what Dr. Smith was going to say? 6 DR. JAMES CAIRNS: No, I thought -- I 7 didn't know -- I would have no idea what Dr. Smith was 8 going to say; I wouldn't have been meeting with him. The 9 people who would have been meeting with Dr. Smith in 10 preparation for a criminal trial would be the police and 11 the Crown attorney. 12 I would have absolutely nothing to do with 13 that at all. 14 MR. WILLIAM MANUEL: We'll come to that 15 perhaps. In particular, did you -- were you familiar 16 with Sheila Walsh, a Crown attorney? 17 DR. JAMES CAIRNS: Yes. 18 MR. WILLIAM MANUEL: And you knew her, 19 sort of as a -- as Sheila Walsh, like, by name in -- in 20 person? 21 DR. JAMES CAIRNS: Yes, I did. 22 MR. WILLIAM MANUEL: And you had 23 discussions with her? 24 DR. JAMES CAIRNS: I have had discussions 25 with her on a number of occasions.
131 MR. WILLIAM MANUEL: And was she one (1) 2 of the Crowns that raised an issue about Dr. Smith 3 telling her something in there -- in her office and then 4 taking the stand and saying something different? 5 DR. JAMES CAIRNS: No. I first knew 6 about that in a letter that I think I read in preparation 7 for this Inquiry where there was correspondence between 8 Mr. McMahon and -- and her. I was not aware prior to 9 that of any issues with Ms. Walsh. 10 MR. WILLIAM MANUEL: Okay. So I take it 11 then Dr. Young -- if Sheila Walsh had a discussion with 12 Dr. Young about her experience in a particular case, the 13 Tiffani case, that that didn't come down to you? 14 DR. JAMES CAIRNS: Tha -- that -- I'm not 15 aware of any conversation with regard to -- to Ms. Walsh. 16 MR. WILLIAM MANUEL: Okay. And was 17 there, in fact -- after the Tiffani case, was there a 18 case conference to address the issue of Dr. Smith 19 changing his testimony? Are you aware of tha -- did that 20 ever happen? 21 DR. JAMES CAIRNS: If you just excuse me 22 a minute, but I'm just trying to remember the Tiffani 23 case. Is the Tiffani case a situation were there was a - 24 - suddenly a fracture of the skull found? 25 MR. WILLIAM MANUEL: I think if we --
141 perhaps if we can pull up -- it's Volume II, Tab 16. 2 It's PFP143440. 3 COMMISSIONER STEPHEN GOUDGE: I think it 4 is the white -- 5 MR. WILLIAM MANUEL: It's the white book, 6 yes, Volume -- 7 COMMISSIONER STEPHEN GOUDGE: -- the 8 overview report -- 9 MR. WILLIAM MANUEL: -- overview report. 10 DR. JAMES CAIRNS: Tab 16? 11 MR. WILLIAM MANUEL: Tab 16, page 99. 12 13 CONTINUED BY MR. WILLIAM MANUEL: 14 MR. WILLIAM MANUEL: And I just -- do you 15 have that? Sorry. 16 DR. JAMES CAIRNS: I do. 17 MR. WILLIAM MANUEL: Right. And page 99 18 and 100, I'm not going to read all of that to you, but 19 I'm going to ask you to look at the -- page 100, the 20 third paragraph and the quote there. She states in her 21 memo: 22 "Some time later I was at a Crown's 23 conference where Jim Young gave a 24 presentation concerning the coroner's 25 office investigation and to past date,
151 baby deaths and the creation of a team 2 to review those cases, as well as new 3 cases. Dr. Smith's name was on the 4 team. I spoke privately to Dr. Young 5 expressing my concerns about Dr. 6 Smith's conduct in Tiffani's case. He 7 said that he was planning to have a 8 meeting about Tiffani's case. I never 9 heard another thing about it". 10 Were you aware of that, at the time, in 11 the mid '90s? 12 DR. JAMES CAIRNS: What -- what I'm 13 trying to recollect is, if you just give me a second, 14 what exactly Tiffani's case was. I don't want to be 15 mistaking it for another case. 16 COMMISSIONER STEPHEN GOUDGE: Go to page 17 100 where it says 100 on the right hand side. On the 18 right-hand side, so it is up three (3) more pages. 19 There. 20 DR. JAMES CAIRNS: No, I'm -- I'm not 21 aware of that in this case, now that I've been able to -- 22 I -- I see what this case is about and you know what-- 23 MR. WILLIAM MANUEL: Right. 24 DR. JAMES CAIRNS: That's not something 25 that I'm aware of.
161 2 CONTINUED BY MR. WILLIAM MANUEL: 3 MR. WILLIAM MANUEL: So, okay. You 4 weren't involved in that, if it happened? 5 DR. JAMES CAIRNS: I wasn't. It appears 6 that Dr. Young -- we can see here -- had some involvement 7 and a Dr. Bechard, who's one (1) of our regional 8 supervising coroners, had some involvement. 9 MR. WILLIAM MANUEL: If there were to be 10 a meeting to discuss the Tiffani case in this fashion and 11 Dr. Smith's conduct in that case, would you expect that 12 you would have been invited to that meeting? 13 DR. JAMES CAIRNS: I would of been 14 surprised if -- if I hadn't been, yes, thank you. 15 MR. WILLIAM MANUEL: Let's look at the -- 16 another issue here. The issue of getting second opinions 17 in pathology cases. The Crown, generally speaking, has 18 set up the office of the chief coroner and that whole 19 system in order of that it obtained appropriate, timely, 20 proper pathologists opinions on suspicious deaths. 21 I mean that is the purpose, in part, of 22 your office? 23 DR. JAMES CAIRNS: That's correct. 24 MR. WILLIAM MANUEL: And to get a second 25 opinion in a case where the coroner's office -- and a
171 pathologist has done the autopsy and in a position to -- 2 to give an opinion on the cause of death, there has to be 3 a justification for going out and getting a second 4 opinion, correct? 5 DR. JAMES CAIRNS: Yes. 6 MR. WILLIAM MANUEL: And mere delay in 7 producing your report as you understand it, is not 8 sufficient justification for the expense and time 9 involved in getting a second opinion, correct? 10 DR. JAMES CAIRNS: Correct. 11 MR. WILLIAM MANUEL: There has to be a 12 reason to doubt or question the validity of the opinion 13 that's been given? 14 DR. JAMES CAIRNS: I -- I agree with 15 that. 16 17 (BRIEF PAUSE) 18 19 MR. WILLIAM MANUEL: Now I'd like to take 20 you to Jenna's Case. And that's the overview report -- 21 it's volume I, Tab 7, page 55 to 58. 22 23 (BRIEF PAUSE) 24 25 MR. WILLIAM MANUEL: And yes, that --
181 particularly paragraph 88. I fear, Commissioner, that 2 I'm going to run over my time in terms of this 3 examination, but I have a number of points that I do -- 4 COMMISSIONER STEPHEN GOUDGE: Not by much 5 you're not, Mr. Manuel. You're going to have to do your 6 best. 7 MR. WILLIAM MANUEL: Well -- 8 COMMISSIONER STEPHEN GOUDGE: That's why 9 we assign times. 10 MR. WILLIAM MANUEL: Yes, well, I'll have 11 to remember to ask for more time next time. 12 13 CONTINUED BY MR. WILLIAM MANUEL: 14 MR. WILLIAM MANUEL: Paragraph 88. On 15 January 7, Dr. Smith wrote a -- a memo to you in this 16 case. Do you see that? 17 DR. JAMES CAIRNS: I do. 18 MR. WILLIAM MANUEL: And do you remember 19 getting that memo? 20 DR. JAMES CAIRNS: I'll need to read it 21 first. 22 23 (BRIEF PAUSE) 24 25 DR. JAMES CAIRNS: Yes.
191 MR. WILLIAM MANUEL: And did you tell Dr. 2 Smith to bring his concerns to the attention of the Crown 3 attorney? 4 DR. JAMES CAIRNS: Not to the best of my 5 recollection. 6 MR. WILLIAM MANUEL: And I -- my question 7 is why not? 8 9 (BRIEF PAUSE) 10 11 DR. JAMES CAIRNS: Because it appears 12 that Dr. Smith is saying that after hours on the stand he 13 felt it was quite clear that he could not distinguish 14 whether her fatal injuries occurred during the presence 15 of the mother or the babysitter, and the counsel said he 16 understood, but he wanted that in writing. 17 MR. WILLIAM MANUEL: That was defence 18 counsel. 19 DR. JAMES CAIRNS: Yes. 20 MR. WILLIAM MANUEL: Right. 21 DR. JAMES CAIRNS: Since -- since that 22 was already something that was -- that was on the record 23 in the trial, I didn't think that there was anything 24 there as an outsider, that -- that the trial didn't know. 25 MR. WILLIAM MANUEL: Now -- but if the
201 defence counsel was confused, you didn't think that this 2 should be brought to the attention of the Crown attorney? 3 DR. JAMES CAIRNS: If the defence counsel 4 was confused, I thought he -- the defence counsel should 5 have brought that to the attention of the Crown attorney. 6 MR. WILLIAM MANUEL: Right. But Dr. 7 Smith is asking you how to reply to a letter from defence 8 counsel. You didn't refer Dr. Smith to the Crown 9 attorney -- speak to the Crown attorney? 10 DR. JAMES CAIRNS: No, I didn't. 11 MR. WILLIAM MANUEL: Why not? 12 DR. JAMES CAIRNS: I didn't think it was 13 my function to do so. 14 MR. WILLIAM MANUEL: And the next 15 paragraph there is a memo by Dr. Chiasson, correct? Do 16 you see that paragraph 90? 17 DR. JAMES CAIRNS: I do. 18 MR. WILLIAM MANUEL: And he also opines 19 in there, in terms of the timing of the injuries of the 20 child, and that was the crucial issue in that Jenna Case, 21 was the timing of the injuries? 22 DR. JAMES CAIRNS: Absolutely. 23 MR. WILLIAM MANUEL: Right. And I'm 24 advised that that memo was not brought to the attention 25 of the Crown attorney. Do you know differently?
211 DR. JAMES CAIRNS: I -- I cannot help you 2 on that. Is this -- what would help, is this before or 3 after the preliminary hearing is finished? 4 MR. WILLIAM MANUEL: This is after. 5 DR. JAMES CAIRNS: Okay. The preliminary 6 hearing has now finished. I am aware that following the 7 -- the preliminary hearing having finished, that Mr. 8 Gilkinson, who was the Crown who was going to be 9 proceeding with the trial, had many meetings with our 10 office, as he was aware that there was dispute at that 11 time with regard to the evidence Dr. Smith had given that 12 it could be up to twenty-four (24) hours. 13 MR. WILLIAM MANUEL: Right. 14 DR. JAMES CAIRNS: And that -- at the 15 Crown's request, we made substantial efforts to get other 16 experts to assist if we could narrow the time frame down. 17 And that went on for quite some time. It 18 went on to the extent that we had many, many meetings. 19 We had -- in fact, eventually got Dr. Pollanen to give an 20 opinion. 21 And the Crown, even after that, said, 22 Look, the first trial where we charged the mother on the 23 timing was thrown out. I'm not prepared to take this 24 case back to trial, in this case, in terms of charging 25 the babysitter unless I've got sound, sound, sound, sound
221 evidence that that is appropriate. 2 Because that's -- and in fact, no one was 3 able, and that's including the experts from Seattle -- 4 Dr. Huyer, Dr. Wood, Dr. Pollanen; no one could give the 5 Crown sufficient strength in their opinion that he was 6 prepared to go ahead with the charges. 7 And the charges went ahead not to do with 8 any of the medical evidence. It went ahead as a result 9 of a confession by -- by the accused. 10 MR. WILLIAM MANUEL: But the withdrawal 11 of the charges against the mother, that was driven by Mr. 12 Gilkinson, wasn't it? 13 DR. JAMES CAIRNS: The withdrawal of the 14 charges -- Mr. Gilkinson when he was aware -- he did not 15 do the preliminary hearing. 16 MR. WILLIAM MANUEL: Right. 17 DR. JAMES CAIRNS: But he was going to 18 take the trial, and when he came aware of the discussion 19 about the timing, he came and met with us; had many 20 discussions with us, and decided he was withdrawing the 21 charges at that time, clearly. 22 And that then he wanted to pursue in terms 23 of -- since the timing was critical -- would additional 24 medical experts be able to assist in sorting out; was it 25 one (1) time, or was it the other.
231 And despite all the medical experts we 2 could get, we could not get to a sufficient degree of 3 certainty to meet his criteria. We could not get him 4 enough evidence that he was prepared. 5 Certainly the -- the preponderance of the 6 second mode of evidence that we -- we supplied for him 7 was very suggestive that this was happening on the 8 babysitter's watch, but from his point of view, having 9 already had thrown out something on the timing, he wanted 10 it ironclad before he went ahead. 11 MR. WILLIAM MANUEL: And he was the one 12 that arranged the meeting in May between the defence 13 expert and Dr. Smith, and yourself, where all of this was 14 hashed out, and the determination was made by him, that 15 there was no basis for continuing the charges. Correct? 16 DR. JAMES CAIRNS: That's correct. 17 MR. WILLIAM MANUEL: Now I just want to 18 deal with a couple of other matters. 19 In the Tyrell's case, you say you phoned 20 Mr. Armstrong after the charges were -- were withdrawn to 21 find out if there was a problem with Dr. Smith? 22 DR. JAMES CAIRNS: That's correct. 23 MR. WILLIAM MANUEL: And he told -- he 24 mentioned the evidence of Dr. Humphries. 25 Did he also mention the evidence of Dr.
241 Becker? 2 DR. JAMES CAIRNS: He -- he mentioned 3 that he had difficulty in his correspondence with Dr. 4 Becker, and that Dr. Becker had been confusing for him 5 during the trial. 6 MR. WILLIAM MANUEL: Did he mention to 7 you that, in fact, he only found out about Dr. Becker in 8 interviewing Dr. Smith in preparation for trial? 9 And when he found out, that the evidence 10 as to the examination of the brain that was contained in 11 Dr. Smith's report, in fact, came from Dr. Becker, not 12 Dr. Smith? 13 DR. JAMES CAIRNS: That's correct. 14 MR. WILLIAM MANUEL: And did he express 15 to you that that was a significant concern for him? 16 DR. JAMES CAIRNS: The -- the significant 17 concern that he said -- I phoned him, and his significant 18 concerns -- what -- what's going on here. He said I have 19 no -- he said to me, I have no problem with Dr. Smith's 20 evidence, but Dr. Robin Humphries indicated that he 21 couldn't tell whether it was accidental or non- 22 accidental. 23 And that that's why he dropped the 24 charges. At a later time in discussions because I was 25 involved with -- with Mr. Armstrong some years later in a
251 similar case -- and on that occasion, he said, Jim, I 2 want to make sure that I know everybody who was involved 3 in it, and in that case, we had a meeting where the 4 people from the emergency department; the SCAN team; the 5 ICU; the pathologist; the neuropathologist; the 6 radiologist; everyone was there, so there was a clear 7 understanding of who had done what part of the 8 examination. 9 And that certainly came as a result of his 10 feeling he'd been caught out, not realizing that Dr. 11 Becker had done the neuropathology. 12 MR. WILLIAM MANUEL: So you -- did you -- 13 THE COMMISSIONER: Mr. Manuel, you're 14 running out of time. 15 MR. WILLIAM MANUEL: I understand that, 16 Your Honour -- Commissioner. 17 18 CONTINUED BY MR. WILLIAMS MANUEL: 19 MR. WILLIAM MANUEL: Did you talk to Dr. 20 Humphries or Dr. Becker to determine whether there was a 21 problem with Dr. Smith in that case? 22 DR. JAMES CAIRNS: I talked to Dr. -- to 23 Dr. Humphries or Dr. Becker to determine whether there 24 was a problem with Dr. Smith in that case? 25 DR. JAMES CAIRNS: I talked to Dr. -- to
261 Dr. Humphries, and he said, Jim, this is one (1) of these 2 I could -- it could have been non-accidental, it could 3 have been accidental, and I just could not -- I could not 4 honestly say one way or the other. 5 MR. WILLIAM MANUEL: Well, in -- given my 6 expiry of my time, I did had some other points I wouldn't 7 -- would have liked to explore with you, but I want to go 8 to your discussion -- 9 COMMISSIONER STEPHEN GOUDGE: I am going 10 to have to ask you to wind up, Mr. Manuel. 11 MR. WILLIAM MANUEL: Mr. Commissioner -- 12 COMMISSIONER STEPHEN GOUDGE: You asked 13 for this time. I gave it to you, and it has elapsed. 14 Thank you. 15 MR. WILLIAM MANUEL: Thank you, 16 Commissioner. 17 COMMISSIONER STEPHEN GOUDGE: Mr. 18 Carter...? 19 MR. WILLIAM CARTER: I was thinking of 20 selling ten (10) minutes. 21 COMMISSIONER STEPHEN GOUDGE: We are not 22 into time sale futures here, Mr. Carter. 23 MR. WILLIAM CARTER: I was just testing. 24 COMMISSIONER STEPHEN GOUDGE: They are 25 not worth anything.
271 2 CROSS-EXAMINATION BY MR. WILLIAM CARTER: 3 MR. WILLIAM CARTER: Dr. Cairns, my name 4 is Bill Carter. I act for the Hospital for Sick 5 Children. 6 DR. JAMES CAIRNS: Yes, Mr. Carter. 7 MR. WILLIAM CARTER: You agree with me 8 that perhaps the most important function of this Inquiry 9 is to establish public confidence in the coroner system? 10 DR. JAMES CAIRNS: I agree. 11 MR. WILLIAM CARTER: And let's just start 12 with where we are today. Currently, in November of 2007, 13 we have a -- a highly qualified forensic pathologist in 14 Dr. Michael Pollanen. 15 DR. JAMES CAIRNS: He is presently -- 16 yes, and he is presently the chief forensic pathologist 17 for the province. 18 MR. WILLIAM CARTER: Okay. And you would 19 agree with that that's an important development in the 20 landscape in the last fifteen (15) or twenty (20) years? 21 DR. JAMES CAIRNS: Yes, it is. And he's 22 taken on many of the issues that have arisen from, 23 obviously, this Inquiry, but before this Inquiry, there's 24 been reviews, et cetera. And he's certainly taken on, in 25 particular, the aspect of reviewing the reports of other
281 pathologists before they even go out of the office. 2 MR. WILLIAM CARTER: I understand that. 3 And I -- I don't want to lose my time, but I would also 4 ask you to agree with me that Dr. Pollanen's expertise as 5 a -- as a general forensic pathologist -- he's not 6 focussed necessarily on pediatrics, is that fair? 7 DR. JAMES CAIRNS: That's fair. 8 MR. WILLIAM CARTER: Okay. But his 9 responsibilities include pediatrics? 10 DR. JAMES CAIRNS: They do. 11 MR. WILLIAM CARTER: And we also have a 12 fully qualified forensic pathologist working in a 13 paediatric setting, and that's Dr. David Chiasson? 14 DR. JAMES CAIRNS: That is correct. 15 MR. WILLIAM CARTER: And that's a recent 16 development in the last few years, as well? 17 DR. JAMES CAIRNS: Approximately four (4) 18 or five (5) years, but, -- 19 MR. WILLIAM CARTER: Right. 20 DR. JAMES CAIRNS: -- yes, that is 21 correct. 22 MR. WILLIAM CARTER: Okay. So what we 23 have today is a situation where we have a specialty 24 qualified paediatric forensic pathologist working at the 25 Hospital for Sick Children, and on forensic matters
291 reporting to a highly qualified, if I may use the term, 2 general forensic pathologist in the person of the Office 3 of the Chief Forensic Pathologist for Ontario? 4 DR. JAMES CAIRNS: That's correct. 5 MR. WILLIAM CARTER: Okay. Now, these 6 are luxuries that could only have been dreamed of in 7 1981, is that right? 8 DR. JAMES CAIRNS: Absolutely. 9 MR. WILLIAM CARTER: Right. So it's our 10 role and function here to walk back over the past and 11 examine the steps and choices that were made and see what 12 we can learn from them, but we can take some comfort from 13 the fact that where we are today it's a very good place 14 and a far cry from where we were when we begin this 15 journey? 16 DR. JAMES CAIRNS: I would agree 17 entirely. 18 MR. WILLIAM CARTER: Okay. In 1981 -- 19 and I pick that date because that's when Dr. Smith went 20 on staff at the Hospital for Sick Children. 21 As I understand it, the coroner's office 22 was run in parallel to the office of the chief forensic 23 pathologist and they both reported up to a assistant 24 deputy minister in the ministry of the Solicitor General? 25 DR. JAMES CAIRNS: Correct.
301 MR. WILLIAM CARTER: And you've fairly 2 told us that there were some breakdowns in communication 3 between those two (2) silos, if you like? 4 DR. JAMES CAIRNS: I think that the word 5 "silos" is very good with very -- very little connection 6 between the two (2). 7 MR. WILLIAM CARTER: Right. 8 DR. JAMES CAIRNS: Or certainly less than 9 optimum communication. 10 MR. WILLIAM CARTER: And that may have 11 been due to the structure, but it also may have been due 12 to the individuals occupying the offices? 13 DR. JAMES CAIRNS: I think it was there 14 was personality issues, as well as structure, -- 15 MR. WILLIAM CARTER: Okay. 16 DR. JAMES CAIRNS: -- but certainly it 17 was initially triggered by personalities. 18 MR. WILLIAM CARTER: All right. And are 19 those personalities no longer with us in the persons of 20 Dr. Bennett and Dr. Hillsdon Smith? 21 DR. JAMES CAIRNS: I don't think it's so 22 much Dr. Bennett; it was his predecessor, Dr. Cotnam. 23 MR. WILLIAM CARTER: Fair enough, I 24 apologize. And they're both deceased, are they not? 25 DR. JAMES CAIRNS: They're both deceased.
311 MR. WILLIAM CARTER: Right. Now in the 2 early '80s, the work being done at the Hospital for Sick 3 Children, with respect to pathology, was organized into 4 the Department of Pathology. I appreciate you have a 5 general knowledge of this. 6 You weren't specifically involved -- 7 although you were a coroner -- you weren't directly 8 involved in the Hospital for Sick Children work until 9 probably the early '90s, is that fair? 10 DR. JAMES CAIRNS: That's correct. 11 MR. WILLIAM CARTER: Okay. And I'd also 12 like to try to make clear some important distinctions in 13 our terminology. The word "forensic" is not a medical 14 term, is it, Doctor? 15 DR. JAMES CAIRNS: No, it's not. 16 MR. WILLIAM CARTER: It's a legal term? 17 DR. JAMES CAIRNS: It's a legal term. 18 MR. WILLIAM CARTER: In fact, it means of 19 the law, does it not? 20 DR. JAMES CAIRNS: Yes, I've often said 21 it's the -- it is applying medicine for the purposes of 22 court or for the purpose of assisting a legal proceeding. 23 MR. WILLIAM CARTER: Yes. I looked in a 24 medical dictionary yesterday, and I could not find it. 25 But I did find it in Black's Law Dictionary. And why
321 this is important, in my submission, is that those who 2 are engaged in forensic activities, whether they be 3 doctors, lawyers, or other specialists, are focussed on 4 the legal application of their expertise? 5 DR. JAMES CAIRNS: Correct. 6 MR. WILLIAM CARTER: Okay. So when we 7 talk about forensic pathology, we are talking about the 8 application of pathology to a legal context? 9 DR. JAMES CAIRNS: Correct. 10 MR. WILLIAM CARTER: And it is not a 11 branch of medicine per se; it has no clinical application 12 to the living; the forensic aspect? 13 DR. JAMES CAIRNS: I wouldn't necessarily 14 agree with that. It depends on the system. In a number 15 of jurisdictions, the Coroner's Office or the Medical 16 Examiner's Office not only deals with the dead, but they 17 do forensic medicine for the living. 18 So they will interpret bruising in a 19 fight; they will do rape kits. So there -- that doesn't 20 happen in Ontario -- 21 MR. WILLIAM CARTER: Okay. Well let's -- 22 DR. JAMES CAIRNS: -- in others it does. 23 MR. WILLIAM CARTER: -- I -- I appreciate 24 -- I appreciate that -- that amplification, but I'd like 25 to confine ourselves to Ontario, because in my analysis,
331 when we talk about forensic pathology, we're talking 2 about a highly specific and defined area, and that is the 3 work -- in the context that concerns us here, is the work 4 that emanates from the coroner's office? 5 DR. JAMES CAIRNS: Correct. 6 MR. WILLIAM CARTER: Okay. And what 7 makes it forensic pathology is that the work is being 8 done pursuant to a coroner's warrant? 9 DR. JAMES CAIRNS: Correct. 10 MR. WILLIAM CARTER: And the purpose of 11 the warrant is to enable the coroner to arrive at answers 12 to the statutory questions that are imposed on him or 13 her? 14 DR. JAMES CAIRNS: Correct. 15 MR. WILLIAM CARTER: I think they're 16 called the five (5) questions, if I'm not mistaken? 17 DR. JAMES CAIRNS: That's correct. 18 MR. WILLIAM CARTER: Okay. Now, when a 19 coroner issues a warrant, and I -- it may be true now, 20 but I assume it was true in the early '80s -- it may be 21 to a pathologist who is working in a hospital setting, is 22 that right? 23 DR. JAMES CAIRNS: In the '80s, the 24 majority of autopsies, the coroner would write a warrant 25 to the local pathologist in the local hospital.
341 MR. WILLIAM CARTER: Right. 2 DR. JAMES CAIRNS: And that would, in the 3 '80s, would have -- it wouldn't have mattered whether it 4 was a straight-forward fall off a ladder, or it was a 5 homicide, or it was a baby. They -- most of them were 6 going to, whoever, was the closest pathologist. 7 MR. WILLIAM CARTER: Right. And -- and 8 when -- and they may or may not have been employees of 9 the hospital? 10 DR. JAMES CAIRNS: They were all 11 employees of the hospital. 12 MR. WILLIAM CARTER: Okay. But for the - 13 - there are none who were not employees, ever? 14 DR. JAMES CAIRNS: We were sending them 15 to a pathologist who was working at a local hospital. 16 MR. WILLIAM CARTER: Right. 17 DR. JAMES CAIRNS: And those pathologists 18 working at a local hospital were employees of that 19 hospital. 20 MR. WILLIAM CARTER: Well, are there no 21 cases where pathologists are independent practitioners 22 working in hospitals or does it matter? 23 DR. JAMES CAIRNS: You mean whether 24 they're working for fee-for-service? 25 MR. WILLIAM CARTER: Yeah, yeah.
351 DR. JAMES CAIRNS: I think we're going to 2 be splitting -- splitting hairs there. 3 MR. WILLIAM CARTER: Okay. Okay, but I'm 4 asking as a lawyer, and you're responding as a physician, 5 is that fair? 6 DR. JAMES CAIRNS: Yes. 7 MR. WILLIAM CARTER: Okay. Well then I 8 don't want to make too much of this, but what I -- I 9 guess my point is, when a coroner issues a warrant to a 10 pathologist to perform a service, the relationship is 11 between the pathologist and the coroner, and it's defined 12 by the five (5) questions that the coroner has to answer? 13 DR. JAMES CAIRNS: That is correct. 14 MR. WILLIAM CARTER: And a contract, in 15 effect, is made and a fee-for-service is provided by the 16 coroner to the pathologist when the job is done. 17 DR. JAMES CAIRNS: That is correct. 18 MR. WILLIAM CARTER: So in that extent 19 you employee pathologists to perform coroner's work. 20 DR. JAMES CAIRNS: That is correct. 21 MR. WILLIAM CARTER: Okay. And in the 22 1980s, as I understand the evidence, and indeed it may 23 even be true until quite recently, there were no 24 pathologists -- and I'll say -- I'll subdivide this -- 25 paediatric pathologists, who were, in fact, certified in
361 forensic medicine in Canada, is that not right? 2 DR. JAMES CAIRNS: Correct. 3 MR. WILLIAM CARTER: So what we had was 4 we had physicians who were trained as specialists in 5 pathology working in hospital settings who were available 6 to do coroner's work as called upon. 7 DR. JAMES CAIRNS: Correct. 8 MR. WILLIAM CARTER: And although they 9 might have all had general qualifications in pathology, 10 their qualifications in the forensic aspect of pathology 11 would vary greatly, would they not? 12 DR. JAMES CAIRNS: They would. 13 MR. WILLIAM CARTER: It would be a 14 function of their experience? 15 DR. JAMES CAIRNS: Yes, they -- their 16 forensic aspect would be in Court, Well, I've been doing 17 this work for the last ten (10) years, therefore, I have 18 become an expert in it because of the length of time that 19 I have been doing it, as opposed to I have a specific 20 sub-specialty exam. 21 MR. WILLIAM CARTER: Because there wasn't 22 one (1) in Canada. 23 DR. JAMES CAIRNS: There -- there still 24 is not one (1) in Canada. 25 MR. WILLIAM CARTER: Right. So, we're
371 talking about on-the-job training, to use a fairly gross 2 term. 3 DR. JAMES CAIRNS: I think that's the 4 perfect way of saying it. 5 MR. WILLIAM CARTER: Okay. So, in 6 selecting pathologists to do coroner's work, I take it 7 that it was the coroner's office that made the decision 8 about whom to retain based on the coroner's appreciation 9 of the appropriate expertise that was available. 10 DR. JAMES CAIRNS: In the early '80s, I 11 wouldn't even take it that far. I would take it that the 12 local coroner have a case and send it to the local 13 pathologist. And there wouldn't have been too much 14 vetting by the Chief Forensic Pathologist as to was this 15 person suitable or not suitable, so you take what you 16 get. 17 And there was no consideration was this 18 person qualified or was this person not. 19 MR. WILLIAM CARTER: Okay. Now, I'd like 20 to move over to the Hospital for Sick Children in the 21 1980s. As I understand it, and if -- if you disagree 22 with me or you have other information let me know, but 23 there were a number of paediatric pathologists working at 24 the hospital during the 1980s, perhaps as many as six (6) 25 or seven (7) at various times.
381 DR. JAMES CAIRNS: That's correct. 2 MR. WILLIAM CARTER: Including Dr. Smith. 3 DR. JAMES CAIRNS: Including Dr. Smith. 4 MR. WILLIAM CARTER: And including Dr. 5 Lawrence Becker -- 6 DR. JAMES CAIRNS: Correct. 7 MR. WILLIAM CARTER: -- who is now 8 deceased. 9 DR. JAMES CAIRNS: Yes. 10 MR. WILLIAM CARTER: And including Dr. 11 Ernest Cutz. 12 DR. JAMES CAIRNS: Correct. 13 MR. WILLIAM CARTER: And Dr. Silver. 14 DR. JAMES CAIRNS: Correct. 15 MR. WILLIAM CARTER: And Dr. Thorner and 16 -- and Dr. Wilson. 17 DR. JAMES CAIRNS: Correct. 18 MR. WILLIAM CARTER: And there may be 19 others. And these pathologists had individual sub- 20 specialties or interest, is that not fair? 21 DR. JAMES CAIRNS: Yes, within the field 22 of paediatric pathology -- 23 MR. WILLIAM CARTER: Yes. 24 DR. JAMES CAIRNS: -- each of them had an 25 old -- their own sub-interest --
391 MR. WILLIAM CARTER: Right. 2 DR. JAMES CAIRNS: -- within paediatric 3 pathology. 4 MR. WILLIAM CARTER: And that is what 5 grows up in the context of a tertiary paediatric hospital 6 setting, is it not? 7 DR. JAMES CAIRNS: That's correct. 8 MR. WILLIAM CARTER: In order to service 9 the clinical needs of a highly specialized staff, sub -- 10 sub-specialties develop among the paediatric 11 pathologists. 12 DR. JAMES CAIRNS: That's correct. 13 MR. WILLIAM CARTER: For instance, Dr. 14 Becker was an expert in neuropathology. 15 DR. JAMES CAIRNS: To the best of my 16 recollection, he restricted himself purely to 17 neuropathology. 18 MR. WILLIAM CARTER: Right. And so if he 19 were performing pathological services in an area other 20 than neuropathology, he might have some difficulty. 21 DR. JAMES CAIRNS: Correct. 22 MR. WILLIAM CARTER: And similarly, other 23 paediatric pathologists had their specialties. I think 24 Dr. Wilson was interested in the cardiovascular system. 25 DR. JAMES CAIRNS: Correct.
401 MR. WILLIAM CARTER: I'm not going to 2 list them all. My point is that when a coroner's warrant 3 was issued in the 1980s, the coroner would be given a 4 list of those doctors who were available to do forensic 5 work at the hospital and whoever was on the rotation, as 6 it were, would be the one available to do the forensic 7 work. 8 DR. JAMES CAIRNS: That's correct. 9 MR. WILLIAM CARTER: And so you might get 10 somebody who had a particular type of expertise in 11 pathology and a different kind of experience in the 12 forensic aspects. 13 DR. JAMES CAIRNS: Correct. 14 MR. WILLIAM CARTER: So it was a bit of a 15 -- a melange of experience? 16 DR. JAMES CAIRNS: Yes. 17 MR. WILLIAM CARTER: And during that 18 period, the 1980s, Dr. Charles Smith asserted himself as 19 one (1) who was particularly interested in the forensic 20 realm? 21 DR. JAMES CAIRNS: That is correct. 22 MR. WILLIAM CARTER: And I think you said 23 in the last day or two (2), that some of his colleagues 24 were less interested. 25 DR. JAMES CAIRNS: Correct.
411 MR. WILLIAM CARTER: Without identifying 2 who they might be, but it's understandable, isn't it? 3 DR. JAMES CAIRNS: Yes. 4 MR. WILLIAM CARTER: Because forensic 5 pathology, when you're dealing with that element that 6 brings you into this environment, is a stressful and 7 difficult work? 8 DR. JAMES CAIRNS: Yes. And probably 9 likely get -- to get more so. 10 MR. WILLIAM CARTER: Well, I hope it 11 won't in the next forty-five (45) minutes for you. 12 Now, the reasons why some of the pediatric 13 -- let me ba -- back up a step. 14 As I understand it, the forensic work can 15 be looked at in two (2) groups. There's the overarching 16 forensic work, which you agree with me, is the coroner's 17 warrant work. 18 DR. JAMES CAIRNS: Correct. 19 MR. WILLIAM CARTER: And there's a small 20 subset within that group, and we've heard it's 21 approximately 5 percent, which are the criminal, or 22 suspicious, cases. 23 DR. JAMES CAIRNS: Yes. In the problems, 24 we do approximately six (6) to six and a half thousand 25 (6,500) autopsies a year, and for the last fifteen (15),
421 twenty (20) years, there are approximately two hundred 2 (200) homicides a year. 3 And we investigate twenty thousand 4 (20,000) deaths. So you're absolutely right that we're 5 looking at two hundred (200) cases out of twenty thousand 6 (20,000). 7 It is a small, narrow portion of the work 8 that is done. 9 MR. WILLIAM CARTER: And the other 95 10 percent is work that is not criminally suspicious. 11 DR. JAMES CAIRNS: It's not related to 12 anything to go to Court. 13 MR. WILLIAM CARTER: Right. 14 DR. JAMES CAIRNS: Yes. 15 MR. WILLIAM CARTER: Right. And so that 16 kind of work, that -- the vast overwhelming majority of 17 that work is, and was being handled by pediatric 18 pathologists who had sufficient skills and expertise, 19 because the forensic component was merely nominal. 20 It was merely -- they were doing it under 21 a coroner's warrant, but they weren't going to go to 22 Court on a criminal matter. 23 DR. JAMES CAIRNS: Only if you're 24 referring to the pediatric pathologists at Sick Kids. 25 MR. WILLIAM CARTER: Yes.
431 DR. JAMES CAIRNS: That did not apply to 2 hospital pathologists who were doing non-criminal 3 pediatric cases that were doing, for example, something 4 that they thought was a SIDS. In retrospect, they were 5 not in any way qualified to do those, because they had 6 not been doing children at all. 7 MR. WILLIAM CARTER: Okay. 8 DR. JAMES CAIRNS: But in the essence of 9 -- of the Hospital for Sick Kids, if we're talking about 10 diseases of children, or all things of non-criminal 11 nature, yes, the pathologists there were very well 12 trained for that work. 13 MR. WILLIAM CARTER: Okay. And that -- 14 thank you for that clarification. I am focussing my 15 question on the Hospital for Sick Children. 16 And so we come to 1991, and we understand 17 that an agreement is entered into between the coroner's 18 office and the hospital to give embodiment to this 19 relationship, and they -- it's called the Ontario 20 Pediatric Forensic Pathology Unit. 21 DR. JAMES CAIRNS: Correct. 22 MR. WILLIAM CARTER: And I appreciate you 23 weren't directly involved in those negotiations, but I'm 24 -- I write that you were generally aware that this was 25 happening.
441 DR. JAMES CAIRNS: I was aware it was 2 happening, yes. 3 MR. WILLIAM CARTER: And at this time, we 4 still have this negotiation going on with the coroner's 5 silo, to use that metaphor, while the forensic pathology 6 silo is in the basement -- 7 DR. JAMES CAIRNS: Correct. 8 MR. WILLIAM CARTER: -- at your offices. 9 And -- is that fair? 10 DR. JAMES CAIRNS: Location, I guess. 11 MR. WILLIAM CARTER: Yeah. Sorry. 12 So -- and you've already indicated to us 13 that Dr. Hillsdon Smith -- I'm going to quote you, if I 14 can find it: 15 "... was completely ..." 16 I can't read my writing. Anyway: 17 "... completely disinterested in the 18 discussions..." 19 I think was the way you described it. 20 DR. JAMES CAIRNS: That -- that's a fair 21 assessment. 22 MR. WILLIAM CARTER: Okay. So what we 23 had was an arrangement being made between the coroner's 24 office and the hospital to provide a framework for doing 25 forensic coroner's warrant work, and we weren't seeing
451 any input from the forensic pathology side. 2 DR. JAMES CAIRNS: Correct. 3 MR. WILLIAM CARTER: And an opportunity 4 to impose standards, guidelines, some disciplinary rigour 5 may have been lost on account of that situation? 6 DR. JAMES CAIRNS: I would accept that. 7 MR. WILLIAM CARTER: Okay. So, in fact, 8 what happened was the coroner's office -- and I guess it 9 was -- it was in the transition from Dr. Bennett to Dr. 10 Young -- was dealing with Hospital for Sick Children 11 pathology department where the demonstrated interest in 12 forensic pathology was starting to focus on Dr. Smith? 13 DR. JAMES CAIRNS: Correct. 14 MR. WILLIAM CARTER: And as I understand 15 your evidence, Dr. Smith in the eyes of the coroner's 16 office, was performing very well? 17 DR. JAMES CAIRNS: Correct. 18 MR. WILLIAM CARTER: And that may be 19 measured by a number of -- of measurements. One (1) was 20 -- as My Friends have indicated, he was out on the 21 lecture circuit talking to your constituency about im -- 22 important and new developments in the forensic aspect of 23 paediatric pathology? 24 DR. JAMES CAIRNS: Correct. 25 MR. WILLIAM CARTER: And he was engaged
461 in doing complicated and challenging work that took him 2 to court as Crown expert? 3 DR. JAMES CAIRNS: That's right. 4 MR. WILLIAM CARTER: And as far as you 5 understood, he was performing well in that context? And 6 when I say "you" I mean your office, so I'm not trying to 7 lay this specifically on you. 8 DR. JAMES CAIRNS: That is correct. 9 MR. WILLIAM CARTER: Okay. 10 COMMISSIONER STEPHEN GOUDGE: Can I just 11 ask a question about the 80s before you launch into the 12 '90s. I will not take it off your time, Mr. Carter. 13 MR. WILLIAM CARTER: I've got my 14 stopwatch. 15 COMMISSIONER STEPHEN GOUDGE: Yes, that 16 is right, that is right. 17 MR. WILLIAM CARTER: I'm timing you, sir. 18 COMMISSIONER STEPHEN GOUDGE: Ah, we will 19 see how that goes. 20 MR. WILLIAM CARTER: Now you have got a 21 yellow card. 22 COMMISSIONER STEPHEN GOUDGE: In the 23 '80s, Dr. Cairns, I appreciate you were not there, but is 24 it your understanding that the paediatric cases done 25 under warrant were streamed in any way to pathologists
471 around the province; meaning, by the paediatric cases 2 including criminally suspicious, but not confined to 3 criminally suspicious? 4 DR. JAMES CAIRNS: They were not streamed 5 at all. They basically -- and I can remember this, and 6 please don't take this in -- in a crude way, but many of 7 the hospital pathologists, that would people who'd be 8 working in community hospitals, although they didn't like 9 to see a baby die, they were quite happy to do the 10 autopsy because I mean it took a quarter (1/4) of the 11 time to do it as it would with an adult because of the 12 size which was entirely the opposite as to what it should 13 have been. 14 MR. WILLIAM CARTER: Right. 15 DR. JAMES CAIRNS: So they were doing 16 these having had no experience whatsoever and, therefore, 17 at that time, there was no streamlining. The -- there 18 was not the guidelines from the chief forensic 19 pathologist. This type of case should only go to A, B, 20 C, and D, so it -- 21 COMMISSIONER STEPHEN GOUDGE: Or should 22 go to the Hospital for Sick Children or a children's unit 23 in Ottawa. 24 DR. JAMES CAIRNS: I think the ones that 25 were going to the Hospital for Sick Kids were probably
481 those where the individual died in Toronto, but it wasn't 2 if a child dies in Brampton that it goes to Sick Kids. I 3 had many -- as a local coroner, many children who died in 4 the SIDS age group, and they were done by the local 5 pathologist. 6 COMMISSIONER STEPHEN GOUDGE: Okay, and 7 was there any streaming at all of the subcategory of 8 criminally-suspicious paediatric cases? 9 DR. JAMES CAIRNS: The criminally -- the 10 criminally suspicious, particularly with the Ontario 11 Provincial Police, the Ontario Provincial Police would try 12 and have those brought to Dr. Hillsdon Smith. With regard 13 to pediatrics, I think that only in terms started in -- in 14 the '90s once they became aware of -- of Dr. -- Dr. Smith. 15 COMMISSIONER STEPHEN GOUDGE: And once the 16 unit was created at HSC? 17 DR. JAMES CAIRNS: Once -- once the unit 18 was created at HSC, yes. 19 COMMISSIONER STEPHEN GOUDGE: I see, 20 thanks. Thanks, Mr. Carter. 21 22 CONTINUED BY MR. WILLIAM CARTER: 23 MR. WILLIAM CARTER: So we -- we have a 24 situation arising where Dr. Smith becomes preeminent in a 25 vacuum, in effect, because there is no forensic paediatric
491 pathology talent available? 2 DR. JAMES CAIRNS: That's correct. 3 MR. WILLIAM CARTER: Okay. And over the 4 course of the following ten (10) years from approximately 5 '91 to 2001, I take it that you had consistent -- may have 6 even been daily, but certainly frequent contact with Dr. 7 Smith? 8 DR. JAMES CAIRNS: That is correct. 9 MR. WILLIAM CARTER: And you fairly told 10 us that, in fact, you were among the few who had his ear 11 because if you called he would respond? 12 DR. JAMES CAIRNS: That's correct. 13 MR. WILLIAM CARTER: Okay. And as I 14 understand the evidence taken at large here, there are 15 three (3) or four (4) areas of concern that have arisen in 16 respect of Dr. Smith's performance. 17 One (1) relates to the timeliness of his 18 reporting? 19 DR. JAMES CAIRNS: Correct. 20 MR. WILLIAM CARTER: Is that fair? 21 DR. JAMES CAIRNS: Correct. 22 MR. WILLIAM CARTER: And that seems to 23 have been a fairly constant theme throughout this piece? 24 DR. JAMES CAIRNS: That's correct. 25 MR. WILLIAM CARTER: Another -- I'm going
501 to come back to that, but I just want to identify these. 2 Another relates to his method of reporting, and when I say 3 method, I mean the manner by which he chose to express 4 himself in writing; that's one (1) of the themes that's 5 emerged from the expert evidence here? 6 DR. JAMES CAIRNS: You -- you'd need to 7 elaborate a little bit, I'm not quite with you. 8 MR. WILLIAM CARTER: Well there's been 9 some criticism in -- in the strictest sense of the word, 10 from the expert panels about the way in which he would 11 describe the histories, the way in which he would develop 12 his analysis, the way in which he would express his 13 conclusions. 14 So there's been some criticism of his 15 methodology of writing reports? 16 DR. JAMES CAIRNS: Yes. 17 MR. WILLIAM CARTER: Do you accept that? 18 DR. JAMES CAIRNS: Yes. 19 MR. WILLIAM CARTER: Okay. And I -- I 20 appreciate that as a non-pathologist, although you are in 21 the forensic realm, you're not in the best position to 22 evaluate his weaknesses or the strengths of the criticisms 23 that have been made? 24 DR. JAMES CAIRNS: Correct. I -- I felt, 25 and I've mentioned this, I felt that some of the
511 criticisms while -- while correct, were not necessarily 2 fair, because of the different way reports were written in 3 North America as opposed to Britain. 4 MR. WILLIAM CARTER: That's a -- that's an 5 interesting point, and I'd prefer not to pursue it with my 6 time, but I think it's one (1) that may be of interest to 7 the Commission. 8 So if you'll forgive me, I'll move on. So 9 you would agree with me that one (1) of the areas of 10 generic concern relates to the method of expressing 11 himself in writing in his reports? 12 DR. JAMES CAIRNS: Correct. 13 MR. WILLIAM CARTER: When they were 14 finally prepared? 15 DR. JAMES CAIRNS: Correct. 16 MR. WILLIAM CARTER: And a -- a third area 17 of concern relates to the manner in which he gave 18 testimony in court proceedings? 19 DR. JAMES CAIRNS: Correct. 20 MR. WILLIAM CARTER: And laterally there 21 was a fourth area which you've told us about, and that 22 related to his integrity? 23 DR. JAMES CAIRNS: Correct. 24 MR. WILLIAM CARTER: And that was a 25 concern that crystalized for you in the spring of 2002?
521 DR. JAMES CAIRNS: That's correct. 2 MR. WILLIAM CARTER: Now I just want to 3 explore those four (4) areas in relation to the work of 4 the coroner's office, because you acknowledge that the 5 work of a pathologist doing forensic work puth -- pursuant 6 to a warrant is directly reporting to the coroner. 7 So this is a contract between the coroner 8 and the pathologist to get this work done? 9 DR. JAMES CAIRNS: That's correct. 10 MR. WILLIAM CARTER: And you acknowledge 11 that the responsibility for the timeliness of the 12 reporting rests primarily, and I guess ultimately with the 13 coroner who has to -- has the statutory obligation to get 14 the questions answered in a reasonable time? 15 DR. JAMES CAIRNS: Correct. 16 MR. WILLIAM CARTER: And I gather that 17 there were developments during the 1990s that may have 18 helped slow down the process of completing forensic post- 19 mortem reports. 20 I'm thinking primarily of the introduction 21 of the toxicology as a routine matter for children, I 22 think it's under five (5), but in any event, for children 23 from the mid '90s on? 24 DR. JAMES CAIRNS: That's correct. 25 MR. WILLIAM CARTER: And so there -- there
531 was an external, if you like, limiting factor on the 2 pathologists ability to produce a timely report? 3 DR. JAMES CAIRNS: That's correct, and by 4 and large, toxicology could take from nine (9) to sixteen 5 (16) weeks. 6 MR. WILLIAM CARTER: Fair enough. 7 DR. JAMES CAIRNS: And it was the 8 understanding that obviously you could not write a final 9 report until after that. And later then there were 10 guidelines that you should have your report in. And the 11 present guidelines are, you should have your report in by 12 three (3) months unless you're awaiting some other testing 13 which is vital to your report. 14 And that, if possible, once that report 15 comes in, then your final report should be available 16 approximately one (1) month following that. 17 MR. WILLIAM CARTER: Okay. So that would 18 be a -- a reasonable benchmark in a standard case? 19 DR. JAMES CAIRNS: Correct. 20 MR. WILLIAM CARTER: Now you acknow -- 21 that might be in the -- the 95 percent of the cases that 22 didn't involve some of these other forensic 23 considerations. 24 DR. JAMES CAIRNS: You mean other -- 25 MR. WILLIAM CARTER: The criminal cases.
541 DR. JAMES CAIRNS: -- other opinions from 2 other experts if you need it. 3 MR. WILLIAM CARTER: Well, there's a -- 4 when you get into the criminal realm -- there's a lot of 5 other considerations that may tend to interfere with the 6 timely production of a report, is that not fair? 7 DR. JAMES CAIRNS: The report may take 8 longer -- 9 MR. WILLIAM CARTER: Yeah. 10 DR. JAMES CAIRNS: -- in a very 11 complicated criminal case and it would in a straight- 12 forward -- straight-forward genuine accidental case. 13 MR. WILLIAM CARTER: Well, what's resting 14 on the final product may be the liberty of one (1) of our 15 citizens. 16 DR. JAMES CAIRNS: Correct. 17 MR. WILLIAM CARTER: Okay, so that's not 18 true for 95 percent of the cases. 19 DR. JAMES CAIRNS: That's correct. 20 MR. WILLIAM CARTER: Okay. So, when we 21 deal with the question of timeliness, we have to bear in 22 mind some of those external forces that operate on the 23 pathologist's ability to turn around a report in a 24 reasonable time, fair enough? 25 DR. JAMES CAIRNS: Right. Correct.
551 MR. WILLIAM CARTER: Now, the pathologist 2 at the Hospital for Sick Children worked in a -- in a 3 rota, if you like, although Dr. Smith -- and I'm talking 4 about the 1990s to -- to be -- give it a decade -- Dr. 5 Smith worked with other colleagues and although he did a 6 significant number of the forensic coroner's work, maybe 7 as much as half; other pathologists did the balance. 8 DR. JAMES CAIRNS: That's correct. 9 MR. WILLIAM CARTER: And they, in effect, 10 worked in a pool together, although he did the predominant 11 amount of the work. 12 DR. JAMES CAIRNS: Correct. 13 MR. WILLIAM CARTER: And they relied on 14 the same resources within that pool in order to get the 15 work product out in terms of the secretarial support, as 16 far as you're aware. 17 DR. JAMES CAIRNS: That's my 18 understanding. 19 MR. WILLIAM CARTER: And I take it you -- 20 you didn't -- you didn't have a significant problem, 21 although you may have had an ongoing problem with the 22 delivery and timing of reports, just as a generic matter - 23 - I can appreciate how that might be just a fact of life 24 in this kind of an environment. 25 But I take it that it was Dr. Smith who was
561 the standout, if you like, on the timeliness problem. 2 DR. JAMES CAIRNS: Well, the only times we 3 had meetings with Dr. Becker, who was head of the 4 department, was in relationship to the -- the delay in Dr. 5 Smith's cases, not for the delay in the other 6 pathologists. 7 MR. WILLIAM CARTER: Okay. So the other 8 50 percent of the pathology reports were not the subject 9 of significant complaint in terms of timeliness. 10 DR. JAMES CAIRNS: That's correct. 11 MR. WILLIAM CARTER: But they were being 12 processed by the same pool of secretarial help, as far as 13 you're aware. 14 DR. JAMES CAIRNS: As far as I was aware, 15 that is correct. 16 MR. WILLIAM CARTER: Okay. Now, I 17 understand from your evidence that you had a number of 18 occasions when you spoke to Dr. Becker, who was the Chief, 19 about matters of common interest related to the forensic 20 pathology work. 21 DR. JAMES CAIRNS: Correct. 22 MR. WILLIAM CARTER: And one (1) of those 23 concerns that you brought to his attention, on more than 24 one (1) occasion, was the timeliness of Dr. Smith's 25 reports.
571 DR. JAMES CAIRNS: I think, although we 2 would have brought a number of concerns, I think if we 3 look at all the documentations, the -- the biggest concern 4 was the timeliness of his reports. 5 And I think we were arguing that since our 6 office was giving a -- a sum of money to Sick Kids to do 7 that work, that we felt that they should be using some of 8 that money to supply Dr. Smith with additional resources 9 because he said that was what was holding him back. 10 MR. WILLIAM CARTER: Right. The -- you 11 were basing that on assertions from Dr. Smith that he had 12 resource problems. 13 DR. JAMES CAIRNS: I was basing that on 14 what Dr. Smith told me. 15 MR. WILLIAM CARTER: Right. But it 16 appears that the other members of the Pathology Department 17 didn't have the same resource problems when it comes to 18 turning around their reports. 19 DR. JAMES CAIRNS: And per -- that's 20 correct, that that could, perhaps, be explained that they 21 weren't doing the same volume of cases as he was. 22 MR. WILLIAM CARTER: Right, but that's a 23 pos -- that is an explanation. Another explanation may be 24 that he was disorganized. 25 DR. JAMES CAIRNS: Absolutely.
581 MR. WILLIAM CARTER: Or that he was a 2 procrastinator. 3 DR. JAMES CAIRNS: Absolutely. 4 MR. WILLIAM CARTER: Or that he processed 5 the reports himself. 6 DR. JAMES CAIRNS: Absolutely. 7 MR. WILLIAM CARTER: Did you know that 8 that's what, in fact, he did? 9 DR. JAMES CAIRNS: No, not until later on 10 when he indicated that he started to process them himself 11 because he was getting absolutely no help. 12 MR. WILLIAM CARTER: I see. And you took 13 that at face value? 14 DR. JAMES CAIRNS: When we discussed it 15 with Dr. Becker he didn't indicate anything to the 16 contrary. 17 MR. WILLIAM CARTER: Okay. Now, the -- 18 will you agree with me that Dr. Becker was a very highly 19 skilled pathologist? 20 DR. JAMES CAIRNS: He was a leader in the 21 field of neuropathology. 22 MR. WILLIAM CARTER: And he was a man of 23 great energy and dedication to his role at the hospital? 24 DR. JAMES CAIRNS: That's correct. 25 MR. WILLIAM CARTER: And of great
591 integrity -- personal integrity? 2 DR. JAMES CAIRNS: I have no reason to -- 3 to doubt his personal integrity. 4 MR. WILLIAM CARTER: And you were -- you 5 were taken to some documents that suggested there were 6 problems about some of Dr. Smith's surgical or clinical 7 work that was the subject of discussion within the 8 hospital involving a Dr. Thorner, to whom he directly 9 reported with respect to surgical matters, and ultimately, 10 Dr. Becker, who was the Chief of the department. 11 Do you recall that? 12 DR. JAMES CAIRNS: Yes. The first time 13 that I saw those particular documents was while I -- when 14 I was preparing my evidence for this inquiry. 15 MR. WILLIAM CARTER: Right. 16 DR. JAMES CAIRNS: And I must admit, that 17 that -- those documents -- I was very disappointed that 18 they hadn't been brought to Dr. Chiasson's attention and 19 my attention while we were having meetings with Dr. 20 Becker. 21 MR. WILLIAM CARTER: Well, let's examine 22 your disappointment here. First of all, your 23 disappointment was today; it wasn't then because you 24 didn't have these discussions, is that -- is that fair? 25 DR. JAMES CAIRNS: We had enough
601 discussions with Dr. Becker concerning our concerns about 2 Dr. Smith that we would have felt if he had other concerns 3 about Dr. Smith that it would have been very, very helpful 4 for him to have shared those concerns with us. 5 MR. WILLIAM CARTER: If he felt that they 6 were significant enough to share with you? That's surely 7 the case? 8 DR. JAMES CAIRNS: That's -- that's his 9 judgment. 10 MR. WILLIAM CARTER: Yes. 11 DR. JAMES CAIRNS: Having seen him, I can 12 only speak for myself and Dr. Chiasson, we both feel they 13 were significant enough that they should have been shared 14 with us. 15 MR. WILLIAM CARTER: Well, Dr. Chiasson 16 will speak for himself. 17 DR. JAMES CAIRNS: Correct. 18 MR. WILLIAM CARTER: Okay. But let me 19 just deal with what your feelings are. As I recall, the 20 reports -- there was some reports related to his 21 interpretation of some surgical pathology, is that fair? 22 DR. JAMES CAIRNS: That would be correct. 23 MR. WILLIAM CARTER: And you would agree 24 with me -- I know it's been some time since you worked in 25 a hospital, but you did, at one (1) time, work in a
611 hospital in Ireland and then in -- in Peel? 2 DR. JAMES CAIRNS: That's correct. 3 MR. WILLIAM CARTER: And you've been 4 around hospitals for a long time? 5 DR. JAMES CAIRNS: Yes. 6 MR. WILLIAM CARTER: So you know something 7 about how they work? 8 DR. JAMES CAIRNS: Yes. 9 MR. WILLIAM CARTER: And you know 10 something about how staff is monitored? 11 DR. JAMES CAIRNS: Yes. 12 MR. WILLIAM CARTER: And -- and their work 13 and performance is monitored? 14 DR. JAMES CAIRNS: Yes. 15 MR. WILLIAM CARTER: And you know that a 16 hospital that is functioning well has a system for 17 identifying issues -- 18 DR. JAMES CAIRNS: Yes. 19 MR. WILLIAM CARTER: -- and addressing 20 them -- 21 DR. JAMES CAIRNS: Yes. 22 MR. WILLIAM CARTER: -- with those who are 23 responsible? 24 DR. JAMES CAIRNS: Yes. 25 MR. WILLIAM CARTER: Okay. And you would
621 find those facts reassuring that there is a system for 2 identifying an ad -- and addressing issues. 3 DR. JAMES CAIRNS: I would. 4 MR. WILLIAM CARTER: And in -- the absence 5 of those would not be reassuring? 6 DR. JAMES CAIRNS: The absence of that 7 quality control -- 8 MR. WILLIAM CARTER: Yeah. 9 DR. JAMES CAIRNS: -- would not be 10 reassuring. 11 MR. WILLIAM CARTER: Right. But in all 12 hospitals, where this reassuring activity takes place, you 13 find, for many of the medical staff, records of 14 inconsistency of the quality of their work, do you not? 15 DR. JAMES CAIRNS: You may, yes. 16 MR. WILLIAM CARTER: Yeah. I mean, that's 17 life, isn't it? 18 DR. JAMES CAIRNS: Yes. 19 MR. WILLIAM CARTER: Okay. And much of 20 that and perhaps, indeed, unless it's terribly 21 significant, does not get reported to the coroner's office 22 if some of these individuals are pathologists, is that 23 fair? 24 DR. JAMES CAIRNS: Depending on what the 25 concerns are, you're quite right.
631 MR. WILLIAM CARTER: Right. I think you 2 said, in fairness, and I think Ms. Rothstein asked you to 3 make -- put this in some context -- that in your 4 experience, you don't get communications from hospitals 5 where your patho -- where pathologists that you engage in 6 forensic activities on -- on the coroner's side; you don't 7 get them to tell you about whatever it is their clinical 8 concerns are unless it's something that really bears on 9 the forensic work they're doing, is that fair? 10 DR. JAMES CAIRNS: I would -- I would 11 accept that, yes. 12 MR. WILLIAM CARTER: Okay. So the 13 judgment about whether or not to communicate those types 14 of concerns rests with the clinician responsible for the 15 management of the specific pathologist? 16 DR. JAMES CAIRNS: Obviously, the decision 17 as to whether that is shared has to rest with the 18 individual who's reviewing it, and their decision as to 19 whether they feel it's relevant to share that information 20 with an outside agency that's working with that hospital. 21 MR. WILLIAM CARTER: Okay. Well, I 22 underst -- I think your concern was that you saw a letter 23 that indicated that Dr. Smith was suspended, or asked not 24 to do -- I forget this precise language -- some of the 25 surgical cases.
641 Is that -- that was the one (1) that 2 troubled you, wasn't it? 3 DR. JAMES CAIRNS: The things that 4 troubled me was, he was -- he was suspended from doing 5 surgical pathology, and he also was being criticized in 6 mis-diagnosis with regard to histopathology. 7 MR. WILLIAM CARTER: Okay. 8 DR. JAMES CAIRNS: And he was told he 9 would have to take some refresher courses to upgrade his 10 histopathology. The most concerning of that would have 11 been the fact that the Hospital for Sick Kids were having 12 concerns on his histopathology, which in my opinion, was 13 critical to his performance as a forensic pathologist. 14 MR. WILLIAM CARTER: Okay. But you would 15 accept that a pathologist at the Hospital for Sick 16 Children is in a better position to evalu -- knowing the 17 facts of the concerns, is in a better position to evaluate 18 what, if any, impact it would have on his work as a 19 forensic pathologist? 20 DR. JAMES CAIRNS: I -- I'm sorry, Mr. 21 Carter, I would -- I would have to not agree with you 22 there. When we were using the Hospital for Sick Kids, we 23 are using a centre of excellence. 24 MR. WILLIAM CARTER: I understand that. 25 DR. JAMES CAIRNS: And, therefore, because
651 it is a centre of excellence, and because it has the 2 safeguards that you have in place, I am going to take it 3 these people, in terms of pathology and histopathology, 4 are beyond reproach. 5 MR. WILLIAM CARTER: And that -- 6 DR. JAMES CAIRNS: And if -- if someone is 7 not beyond reproach, and they're doing forensic cases, I 8 would have hoped that that would have been shared. 9 MR. WILLIAM CARTER: Well, let's -- let's 10 explore that. Those whom you place beyond reproach -- 11 we're not going to use the icon word -- are responsible 12 for evaluating their colleagues and peers? 13 DR. JAMES CAIRNS: Correct. 14 MR. WILLIAM CARTER: And they are 15 responsible for determining the context in which the 16 deficiencies arise? 17 DR. JAMES CAIRNS: Correct. 18 MR. WILLIAM CARTER: And you agree with me 19 that -- you know, you've already agreed with me that some 20 pathologists have varying amounts of expertise in certain 21 types of work? 22 DR. JAMES CAIRNS: I have. 23 MR. WILLIAM CARTER: And so those who are 24 on call may be called upon to do work in areas where it 25 does not necessarily involve their strength? That just
661 happens in a system where the people have to cover for 2 each other. 3 DR. JAMES CAIRNS: I -- I think they would 4 all have a basic strength, and then some of them would 5 have additional strength in a particular situation. And I 6 think what happens is the pathologist who's on surgical 7 call will give an opinion, and if they feel, Well, you 8 know, this is a little bit not my expertise, but 9 pathologist B in the next room is, so I'll go in and 10 consult with pathologist B. 11 MR. WILLIAM CARTER: Okay. And that 12 process of dialogue is important for putting in context 13 the quality of the work that's being performed? 14 DR. JAMES CAIRNS: That's -- that's 15 correct. 16 MR. WILLIAM CARTER: So if we were to hear 17 from those with responsibility for Dr. Smith's clinical or 18 surgical work, we would be able to get a better 19 understanding of the nature of these perceived 20 deficiencies? 21 DR. JAMES CAIRNS: Correct. The only -- 22 the only information I have with regard to it are the 23 letters that have been referred to -- 24 MR. WILLIAM CARTER: I understand. 25 DR. JAMES CAIRNS: -- at this Inquiry.
671 MR. WILLIAM CARTER: Okay. Now the letter 2 that suggested that he was going to be removed from the 3 surgical rotation; my information is that letter was never 4 given to him. 5 And I understand you have no information 6 about that? Is that fair? 7 DR. JAMES CAIRNS: I have no information 8 about that, no. 9 MR. WILLIAM CARTER: Okay. But you'd 10 agree with me that if in fact that never occurred, there 11 would be nothing to report? 12 DR. JAMES CAIRNS: If that was not given 13 to him, then certainly there would be -- I wouldn't be 14 expecting Dr. Becker to say, By the way, we were going to 15 take his -- 16 MR. WILLIAM CARTER: Right. 17 DR. JAMES CAIRNS: -- privileges away, but 18 we didn't. 19 MR. WILLIAM CARTER: Right. 20 DR. JAMES CAIRNS: Because -- yes. 21 MR. WILLIAM CARTER: Fair enough. Well, 22 we're not talking about his privileges here. 23 DR. JAMES CAIRNS: Sorry, going -- that 24 he's going to stop doing surgical pathology -- 25 MR. WILLIAM CARTER: Right.
681 DR. JAMES CAIRNS: -- for a period of 2 time. 3 MR. WILLIAM CARTER: But there are lots of 4 other things a pathologist can do at the Hospital for Sick 5 Children other then surgical poll -- pathology? 6 DR. JAMES CAIRNS: That's correct. 7 MR. WILLIAM CARTER: Including autopsy 8 work? 9 DR. JAMES CAIRNS: Correct. 10 MR. WILLIAM CARTER: Both hospital autopsy 11 work and forensic autopsy work? 12 DR. JAMES CAIRNS: Correct. 13 MR. WILLIAM CARTER: Right. And there was 14 nothing about the communications that Ms. Rothstein put to 15 you that addressed his hospital autopsy work? 16 DR. JAMES CAIRNS: Not his hospital 17 autopsy work, but it appeared that it was related to his 18 hospital surgical work. 19 MR. WILLIAM CARTER: I understand that. 20 That's your -- you're agreeing with me, it didn't relate 21 to the autopsy work, it related to the surgical work. 22 DR. JAMES CAIRNS: That is the -- the 23 material I read -- 24 MR. WILLIAM CARTER: Yeah. 25 DR. JAMES CAIRNS: -- was related to his
691 diagnostic abilities in surgical cases. 2 MR. WILLIAM CARTER: Okay. Now, the 3 supervision of Dr. Smith's forensic work, as opposed to 4 his whatever surgical hospital autopsy work he did, which 5 amounted to at least half of his clinical time, rested 6 with the Coroner's Office, did it not? 7 DR. JAMES CAIRNS: Yes, it did. 8 MR. WILLIAM CARTER: And that supervision 9 was, I guess, primarily with Dr. Young as Chief Coroner. 10 DR. JAMES CAIRNS: Once Dr. Chiasson 11 became the Chief Forensic Pathologist, then the 12 supervision of pathology came under Dr. Chiasson. 13 MR. WILLIAM CARTER: I see. So, from was 14 it 1994 on? 15 DR. JAMES CAIRNS: 1994 is when Dr. 16 Chiasson became the Chief Forensic Pathologist. 17 MR. WILLIAM CARTER: Okay. And we know 18 that when Dr. Chiasson -- so he took responsibility for 19 supervising Dr. Smith's forensic pathology work. 20 DR. JAMES CAIRNS: When Dr. Chiasson came 21 on, having to start from basically scratch, he did a 22 number of things. He wanted a list of all the 23 pathologists in the Province who were doing coroner's 24 autopsies. He then wanted to grade them into what type of 25 cases he could do so we would know they were, and then he
701 had sent out memos that he wanted to review all ca -- all 2 autopsy reports that were of a suspicious or criminal 3 nature. 4 MR. WILLIAM CARTER: Okay. And you were 5 asked by My Friend that -- about the concerns about 6 timeliness of reports, particularly from the Crown -- this 7 was first thing this morning -- and you indicated that 8 there was nothing you felt you could do about enforcing a 9 reasonable expectation for timeliness on Dr. Smith beyond 10 bringing it to his attention and increasing the volume; is 11 that fair? 12 DR. JAMES CAIRNS: We -- what we could 13 have done, we could have stopped him doing them completely 14 and that felt was -- that was going to be the greater of 15 two (2) evils, that at that time him being late was better 16 than not doing them at all. 17 The steps we did take and has been referred 18 to in some evidence, although he never indicated to us 19 that he was too busy, some of our Regional Supervising 20 Coroners were getting so delayed that, in fact, they 21 stopped sending their cases there and they requested both 22 their coroners and their pathologists not to send anything 23 to Dr. Smith unless the Regional Supervising Coroner had - 24 - had approved it. 25 And that was because as the '90s went on
711 and his expertise -- he was one that everybody was looking 2 for, and it was felt he was taking on too much work. 3 MR. WILLIAM CARTER: But you've -- you've 4 -- you've answered my question at the beginning. You 5 could have stopped giving him the work. 6 DR. JAMES CAIRNS: We could have stopped 7 him. 8 MR. WILLIAM CARTER: Right. 9 DR. JAMES CAIRNS: Yes. 10 MR. WILLIAM CARTER: It -- it wasn't 11 because he was an employee of the Hospital for Sick 12 Children that you couldn't control the question of 13 timeliness, was it? 14 DR. JAMES CAIRNS: We could have said 15 you're not doing anymore medicolegal autopsies. 16 MR. WILLIAM CARTER: Right. And 17 eventually that would have dealt with the timeliness issue 18 because he would have had to complete what was in process 19 and then you could consider about the question of turning 20 the tap on again. 21 DR. JAMES CAIRNS: That is correct. 22 MR. WILLIAM CARTER: So that was something 23 within the control of your office. 24 DR. JAMES CAIRNS: It was within the 25 control of our office. It was discussed and we felt that
721 his services at that time as the expert; that we could not 2 take away his valuable services. 3 I suppose it is a bit like you're a 4 fabulous cardiac surgeon, you're the best around, but you 5 don't do your histories, and physicals, and you're going 6 to be kicked off staff because of all those sort of 7 things, and your balance -- whi -- which is -- which is 8 the lesser of two (2) evils. 9 MR. WILLIAM CARTER: Right. So, you were 10 prepared to overlook some of Dr. Smith's idiosyncrasies, 11 if I can use that term, and I may -- I don't mean to 12 minimize their irritation to the Coroner's Office, but for 13 the -- for the sake of those -- the need to produce this 14 first class product in forensic pathology. 15 DR. JAMES CAIRNS: We also went to Dr. 16 Becker asking that Dr. Smith be given extra resources in 17 order to speed up the backlog he had on reporting. 18 MR. WILLIAM CARTER: Right, which you 19 understood were due to lack of secretarial help. 20 DR. JAMES CAIRNS: Correct. 21 MR. WILLIAM CARTER: Right. Now, you -- 22 you know yourself that there's reason to doubt some of the 23 statements made by Dr. Smith when it comes to explaining 24 reasons for deficiencies in his performance, don't you? 25 DR. JAMES CAIRNS: If -- if I knew then
731 what I know now, yes. 2 MR. WILLIAM CARTER: I think there's a 3 song. 4 DR. JAMES CAIRNS: There is. 5 MR. WILLIAM CARTER: Well, we'll refrain 6 from singing. But you would agree with me that there is 7 much about Dr. Smith's explanations for his work and 8 deficiencies in his work that is open to considerable 9 doubt? 10 DR. JAMES CAIRNS: Absolutely. 11 MR. WILLIAM CARTER: Now, it is clear that 12 after Dr. Chiasson arrived, he took some steps to monitor 13 the quality of the coroner's cases that were being 14 performed at the Hospital for Sick Children, did he not? 15 DR. JAMES CAIRNS: He did. 16 MR. WILLIAM CARTER: And I understand that 17 in 1997, he conducted an audit or review of twenty (20) 18 cases that were under -- cases performed under coroner's 19 warrant by the unit? Are you aware of that? 20 DR. JAMES CAIRNS: It's not -- it's not 21 coming directly to mind. 22 MR. WILLIAM CARTER: Okay. There's a 23 document, number PFP-044168, which I understand is a 24 summary of -- of some analysis that was performed under 25 the auspices of the --
741 COMMISSIONER STEPHEN GOUDGE: Could you do 2 the number again, Mr. Carter? 3 MR. WILLIAM CARTER: Yes. It's 044168. 4 COMMISSIONER STEPHEN GOUDGE: 04 -- do it 5 again. 6 MR. WILLIAM CARTER: Zer -- There's -- 044 7 not 144. 8 COMMISSIONER STEPHEN GOUDGE: One (1) more 9 time. 10 MR. WILLIAM CARTER: Can I give you the 11 hard copy, does that help? 12 COMMISSIONER STEPHEN GOUDGE: Yes. 13 MR. WILLIAM CARTER: 168. 14 COMMISSIONER STEPHEN GOUDGE: 168. 15 MR. WILLIAM CARTER: That's 184. Thank 16 you. 17 18 CONTINUED BY MR. WILLIAM CARTER: 19 MR. WILLIAM CARTER: Can you just take a 20 look at that for a moment, Dr. Cairns? Thank you. 21 DR. JAMES CAIRNS: I probably will need a 22 microscope to see this. It's -- my -- in my elderly years 23 my eyesight cannot quite -- 24 MR. WILLIAM CARTER: Well, let -- let me 25 attempt to read it to you. It's -- the heading on this is
751 -- is how's that? 2 DR. JAMES CAIRNS: I can see it perfectly 3 now. 4 MR. WILLIAM CARTER: Okay. So this is 5 headed "Forensic Pathology Unit, Quality Control Audit of 6 Coroner's Cases. 7 DR. JAMES CAIRNS: Yes. 8 MR. WILLIAM CARTER: You'd agree with me 9 that in 1997 it was a useful thing for the chief 10 pathologist working under the direction of the chief 11 coroner to conduct an audit of the work being done at the 12 unit at the Hospital for Sick Children? 13 DR. JAMES CAIRNS: Very much so. 14 MR. WILLIAM CARTER: Maybe overdue? 15 DR. JAMES CAIRNS: Certainly, it was -- it 16 is appropriate in terms of overdue. I know that when Dr. 17 Chiasson took over the job as chief forensic pathologist, 18 he basically wa -- was starting at the foundation and 19 working up. 20 MR. WILLIAM CARTER: Okay. 21 DR. JAMES CAIRNS: And I'm aware that he 22 would have had more concerns with the other pathologists 23 across the province and less concerns immediately about 24 Sick Kids because of its reputation. 25 MR. WILLIAM CARTER: Well, not just its
761 reputation because of the quality of the people who were 2 working there? 3 DR. JAMES CAIRNS: Well, that's what I 4 mean by its reputation, -- 5 MR. WILLIAM CARTER: Well, there's -- 6 DR. JAMES CAIRNS: -- it's built on the 7 quality of the people who were working there. 8 MR. WILLIAM CARTER: Well, there's -- 9 there's a big difference, Doctor, and this inquiry 10 revolves on that difference. 11 DR. JAMES CAIRNS: Okay. I'll take -- 12 MR. WILLIAM CARTER: Okay. So -- 13 DR. JAMES CAIRNS: Because of the quality 14 of the people that were working there, it would not have 15 been his first priority. It would be certainly important, 16 but he wouldn't go to it first. So I don't know whether 17 this is the first year that's he done it. 18 MR. WILLIAM CARTER: Okay. Well, your -- 19 when you take over a new job you try to put out the 20 biggest fires first, right? 21 DR. JAMES CAIRNS: Right. 22 MR. WILLIAM CARTER: That's what you're 23 telling me? 24 DR. JAMES CAIRNS: Correct. 25 MR. WILLIAM CARTER: And this --
771 DR. JAMES CAIRNS: And this did not appear 2 to be the biggest fire. 3 MR. WILLIAM CARTER: Right. 4 DR. JAMES CAIRNS: I would agree entirely. 5 MR. WILLIAM CARTER: Yeah. And if you 6 look at this, and I'm -- I'm not going to take you through 7 it in detail, but it would appear that what he did was he 8 examined twenty (20) cases and under the caption 9 pathologist, it says CS -- that would be Charles Smith -- 10 988A1H. 11 Is "H" homicide? There's a -- there's a -- 12 yes, if you look, there's a legend at the top under 13 "Manner of Death". 14 DR. JAMES CAIRNS: That's correct. 15 MR. WILLIAM CARTER: Okay. So we have one 16 (1) homicide in the group looked at by Dr. Smith. We have 17 EC, that would be Dr. Ernest Cutz? 18 DR. JAMES CAIRNS: Correct. 19 MR. WILLIAM CARTER: He did eight (8) of 20 those cases. There were apparently no homicides in that 21 group, and although there was one (1) suicide, and GW, 22 that would be Greg Wilson? 23 DR. JAMES CAIRNS: Correct. 24 MR. WILLIAM CARTER: And there were no 25 homicides in that group. So of that little sample, we
781 have one (1) homicide in twenty (20), which oddly enough 2 is 5 percent, right? Just as a matter of interest. It 3 accords -- even that microcosm accords with your bigger 4 statistic that 5 percent of these auto -- these autopsies 5 relate to the criminal realm in -- 6 DR. JAMES CAIRNS: Correct. 7 MR. WILLIAM CARTER: Yeah. And if you 8 just look down to the bottom, you'll see there's a hap -- 9 caption that says, "Forensic Issues". Now would you agree 10 with me -- I know Dr. Chiasson can speak to this, and I 11 don't want to dwell on it, but I just want to make it 12 clear that there was some auditing going on in 1997. 13 And it would appear that the auditor has 14 made some generic conclusions about what he or she has 15 encountered. I'm assuming they're reading reports here, 16 but we'll get more information later, is that fair? 17 DR. JAMES CAIRNS: That's fair. 18 MR. WILLIAM CARTER: Okay. And so, these 19 are the kinds of things, let's just quickly go through 20 them: 21 "Limited description of external 22 injuries, injuries not described in 23 continuity, no or minimal reference to 24 circumstances surrounding death, sub- 25 optimal terminology used in denoting
791 findings and/or cas -- cause of death, 2 discrepancies with pathologists and 3 coroner's conclusions". 4 This is kind of a shopping list of -- of 5 problems, deficiencies, areas of concern that you would 6 expect to emerge from a review of twenty (20) post-mortem 7 reports? 8 DR. JAMES CAIRNS: Correct. 9 MR. WILLIAM CARTER: Okay. And what this 10 is aimed at is trying to identify weaknesses and improve 11 standards? 12 DR. JAMES CAIRNS: Correct. 13 MR. WILLIAM CARTER: Okay. And this was a 14 function that was undertaken by properly, the Chief 15 Pathologist? 16 DR. JAMES CAIRNS: Correct. 17 MR. WILLIAM CARTER: And indeed, in 2002, 18 there was a review of the -- this is the Carpenter Review, 19 to contextualize this? 20 DR. JAMES CAIRNS: Correct. 21 MR. WILLIAM CARTER: What were the terms 22 of reference of that Doctor? 23 DR. JAMES CAIRNS: He was sent six (6) 24 cases, which Dr. Chiasson felt were samples of the typical 25 type of work that Dr. Smith was performing, that were of a
801 non-suspicious, non-criminal nature. 2 MR. WILLIAM CARTER: So these were in the 3 other 95 percent? 4 DR. JAMES CAIRNS: In the -- these were 5 samples of the majority of the cases that he would be 6 doing. 7 MR. WILLIAM CARTER: Okay. So although 8 they're called forensic, they're -- they're not cases that 9 take us into the criminal realm? 10 DR. JAMES CAIRNS: Probably it would be 11 better to say coroner's autopsies. 12 MR. WILLIAM CARTER: Okay. And as I 13 understand it, Dr. Carpenter concludes that those were all 14 well performed -- properly performed? 15 DR. JAMES CAIRNS: He had no issue at all 16 with any of those. 17 MR. WILLIAM CARTER: Okay. 18 19 (BRIEF PAUSE) 20 21 MR. WILLIAM CARTER: Thank you. 22 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 23 Carter. Mr. Gover...? 24 MR. BRIAN GOVER: Thank you. 25
811 CROSS-EXAMINATION BY MR. BRIAN GOVER: 2 MR. BRIAN GOVER: Dr. Cairns, it may come 3 as a relief to you to know that I'm going to be quite 4 brief. I'm going to follow up on a line of questioning 5 that Mr. Carter just engaged in, having regard to your 6 evidence about criticism of Dr. Smith within the Hospital 7 for Sick Children that was not brought to your attention. 8 And you said that in response to My Friend, 9 Mr. Carter, Dr. Smith was being criticized in mis- 10 diagnosis with respect to histopathology, and that this 11 was critical to his performance as a forensic pathologist. 12 Now I realize that you're not a forensic 13 pathologist, but can you explain to us why that was 14 important or would have been important for you to know at 15 the time? 16 DR. JAMES CAIRNS: I think the panel of 17 experts that were here last week were talking about 18 forensic pathology, and one (1) of the things they were 19 emphasizing was the necessity and the importance of -- of 20 histology. 21 So they were considering in forensic cases, 22 that histology was significant, and particularly in 23 children where the external signs of violence can be very 24 subtle, there's an even greater dependence on 25 histopathology.
821 MR. BRIAN GOVER: Now, Mr. Carter has 2 suggested that there may be evidence that the document 3 that we have within Volume I at Tab 41, and that's 4 PFP137850, may not have been sent? You recall being asked 5 that question? 6 DR. JAMES CAIRNS: Which tab is it again, 7 please? 8 MR. BRIAN GOVER: It's Volume I at Tab 41. 9 And... 10 11 (BRIEF PAUSE) 12 13 DR. JAMES CAIRNS: I've got it. 14 MR. BRIAN GOVER: Yes. And you appreciate 15 his point, Dr. Cairns, that there may be evidence that 16 we'll hear that this letter was not, in fact, sent to Dr. 17 Smith? You appreciate that? 18 DR. JAMES CAIRNS: Yes. All I can 19 indicate is I've read this letter and how I interpreted 20 the letter. Obviously, there may be a different 21 explanation. 22 MR. BRIAN GOVER: Nonetheless -- 23 DR. JAMES CAIRNS: It does -- it does say 24 -- this is what -- it says on the bottom of the second 25 paragraph:
831 "You will not be doing surgical 2 pathology on a regular rotation and 3 accordingly, the salary for the division 4 of pathology will be reduced by twenty 5 thousand dollars ($20,000) for 1997". 6 MR. BRIAN GOVER: Right. And whether this 7 was sent or not, do you have a view as to whether 8 information contained in it would have been relevant to 9 you in your role as Deputy Chief Coroner? 10 DR. JAMES CAIRNS: It would have been 11 helpful to me, and I think it probably would have been 12 even more help to -- to Dr. Chiasson because in the first 13 paragraph it lim -- it indicates that there have been a 14 disproportion of number of complaints about diagnostic 15 inconsistencies from pediatricians and surgeons. 16 Now, the issue of delay is one (1) thing, 17 but that is clearly spelling out that they have got 18 concerns about his diagnostic ability. How -- that would 19 concern me, and I'll leave it to Dr. Chiasson as the 20 pathologist, as to how significant he would think that 21 would be. 22 MR. BRIAN GOVER: And before you close 23 that binder, Dr. Cairns, if I could ask you to turn to the 24 preceding tab, Tab 40. This is a memorandum to Dr. Becker 25 dated March 30 -- 21st, 1997. It's PFP137856.
841 And appreciating as I do what you've told 2 us about the importance of histology, does the information 3 contained in this memorandum to Dr. Becker, in your view, 4 have any relevance to the view that you then continued to 5 hold of Dr. Smith's abilities, at this time, March of 6 1997? 7 DR. JAMES CAIRNS: It does. 8 MR. BRIAN GOVER: Can you explain that to 9 us, please? 10 DR. JAMES CAIRNS: This is, once again, 11 indicating that his diagnostic ability is being questioned 12 in a number of cases, and that is a concern. And since 13 histopathology is significant in the work he was doing for 14 us, I -- we would have apprecia -- I would have 15 appreciated -- and if I had been copied this, I would 16 bring it to Dr. Chiasson if he hadn't been copied as well, 17 and say, You now tell me, how does this affect your 18 opinion of the abilities of Dr. Smith to continue this 19 work? 20 MR. BRIAN GOVER: Now, I note that the 21 first paragraph refers to four (4) recent cases of Dr. 22 Smith's in which there are diagnostic discrepancies, do 23 you see that, Dr. Cairns? 24 DR. JAMES CAIRNS: I do. 25 MR. BRIAN GOVER: And in the context of
851 what was happening at the time in -- in the Spring of 2 1997, would it have been of assistance to you to know that 3 these were recent cases in which these problems had 4 arisen? 5 DR. JAMES CAIRNS: Yes, it would. 6 MR. BRIAN GOVER: Thank you very much. 7 Those are my questions. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 9 Gover. Lastly, Ms. Rothstein. 10 MS. LINDA ROTHSTEIN: Commissioner, we 11 have no questions. Thank you very much. Dr. Cairns, very 12 grateful for you for all your testimony. Thank you. 13 Commissioner, that concludes the evidence of Dr. Cairns -- 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 MS. LINDA ROTHSTEIN: -- and I believe 16 that we are on schedule to start with Dr. Young's evidence 17 at 2:00 p.m. 18 COMMISSIONER STEPHEN GOUDGE: Okay, we'll 19 rise now until 2:00 p.m. Dr. Cairns, let me thank you on 20 behalf of the Inquiry. Your evidence has been very 21 helpful, and we appreciate the time you've devoted to 22 preparing it and giving it. 23 DR. JAMES CAIRNS: Thank you, 24 Commissioner. 25
861 (WITNESS STANDS DOWN) 2 3 --- Upon recessing at 11:56 a.m. 4 --- Upon resuming at 2:01 p.m. 5 6 THE REGISTRAR: All rise. Please be 7 seated. 8 COMMISSIONER STEPHEN GOUDGE: Afternoon. 9 MR. MARK SANDLER: Good afternoon, 10 Commissioner. 11 COMMISSIONER STEPHEN GOUDGE: Mr. Sandler, 12 Dr. Young. 13 MR. MARK SANDLER: Yes, Commissioner, Dr. 14 Young will be the next witness. I anticipate that his 15 evidence will extend for the balance of today, all of 16 tomorrow. I will be completed my examination-in-chief at 17 10:59 on Monday, and cross-examination will then continue. 18 COMMISSIONER STEPHEN GOUDGE: I'm going to 19 make a note of that, Mr. Sandler. 20 MR. MARK SANDLER: Haven't disappointed 21 you yet. At the end of Tuesday, Dr. Young's evidence will 22 be completed in its entirety. So that's the schedule for 23 the next few days. 24 COMMISSIONER STEPHEN GOUDGE: That's fine. 25 And I'm afraid I have a commitment that we are going to
871 have to stop this afternoon at 4:20; we'll take our break 2 at the usual time. 3 MR. MARK SANDLER: All right. Thank you 4 very much. 5 COMMISSIONER STEPHEN GOUDGE: Way you go. 6 MR. MARK SANDLER: I'd ask that Dr. Young 7 be sworn please. 8 9 JAMES GORDON YOUNG, Sworn 10 11 EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Good afternoon, Dr. 13 Young. 14 DR. JAMES YOUNG: Good afternoon. 15 MR. MARK SANDLER: Commissioner, to assist 16 in the calling of Dr. Young's evidence, Commission Counsel 17 have prepared a partial chronology of some of the events 18 that will be described in the course of his testimony, and 19 it has been distributed to all counsel, and I believe you 20 have a copy as well? 21 COMMISSIONER STEPHEN GOUDGE: Yes, thanks. 22 23 CONTINUED BY MR. MARK SANDLER: 24 MR. MARK SANDLER: All right. Dr. Young, 25 if I can take you to volume I of the materials, you will
881 have that volume in front of you opened up already at Tab 2 2, and it is your curriculum vitae? 3 DR. JAMES YOUNG: Yes. 4 MR. MARK SANDLER: And if I can take you 5 to page 2 of the document, please. And it reflects under 6 education that you obtained your degree as a Doctor of 7 Medicine in 1975. 8 Is that right? 9 DR. JAMES YOUNG: That's correct. 10 MR. MARK SANDLER: And if I can take you 11 to page 4 of your curriculum vitae -- I'll be dealing with 12 it somewhat out of order -- under "professional 13 activities," it reflects that after you became a doctor, 14 from 1976 to 1982 you practised as a general medical 15 practitioner in Elmvale, Ontario. 16 Is that right? 17 DR. JAMES YOUNG: That's correct. 18 MR. MARK SANDLER: And, thereafter, in the 19 entry immediately above that, you became an investigative 20 coroner for Simcoe County, and held that position for 21 approximately five (5) years. 22 Am I right? 23 DR. JAMES YOUNG: While -- while I was a 24 physician, then I was a local investigating coroner. So 25 one (1) of the things I did among -- in a family practice
891 was to do coroner's work when cases arose. 2 MR. MARK SANDLER: And could you explain 3 to -- to the Commissioner, briefly, what your role as 4 investigative coroner would have entailed during that 5 period? 6 DR. JAMES YOUNG: Certainly. The 7 investigative coroners are the coroners that go to the 8 scenes twenty-four (24) hours a day, rain or shine. 9 So that the police or the hospital would 10 call if it was deemed to be a coroner's case, and the 11 local coroner becomes the first investigating coroner; the 12 person that works directly with the police department and 13 the Ident Units, and makes the original decisions as to 14 whether or not there will be an autopsy or not. 15 Ultimately -- in most instances, writes -- 16 produces a report of the case and, in some instances, 17 recommends whether an inquest should or shouldn't be held, 18 et cetera. 19 MR. MARK SANDLER: All right. And if I 20 could take you back to page 3 of your curriculum vitae, 21 and we're moving from bottom to top, if we may. Then we 22 see from your curriculum vitae, that you became the 23 Regional Coroner for Metropolitan Toronto and Central 24 Region in 1982, and held that position till 1987. 25 Is that right?
901 DR. JAMES YOUNG: That's correct. 2 MR. MARK SANDLER: And that was a full- 3 time position as I understand it? 4 DR. JAMES YOUNG: Yes. 5 MR. MARK SANDLER: And -- 6 DR. JAMES YOUNG: Yes, that was a move to 7 Toronto and full-time coroner's work. 8 MR. MARK SANDLER: And, again, briefly, 9 what was it that that job entailed? 10 DR. JAMES YOUNG: Well, the Regional 11 Supervising Coroners are the people who -- the local 12 coroner's report to Regional Supervising Coroner. In my 13 case, then, my -- I started out with the area of 14 Metropolitan Toronto and after a year or two (2), York, 15 Peel, and Durham regions were added to -- to the people 16 who reported to me. 17 As the Regional Supervising Coroner, then I 18 was both the source of advice to coroners, but also 19 monitored their performance, read through their reports, 20 dealt with the pathology issues, met with families, often 21 conducted inquests, et cetera. 22 MR. MARK SANDLER: All right. And then 23 you became the Deputy Chief Coroner for the Province of 24 Ontario in 1987 and held that position for three (3) 25 years.
911 Am I right? 2 DR. JAMES YOUNG: That's correct. 3 MR. MARK SANDLER: Now, were you the only 4 Deputy Chief Coroner for the Province of Ontario during 5 that time frame? 6 DR. JAMES YOUNG: Yes, there was -- there 7 was -- well, yes and no. There was a position of Chief 8 Forensic Pathologist, as well, which is -- at that time 9 was organized differently and -- and in a separate 10 division, but essentially -- so I was the only Chief -- 11 Deputy Chief Coroner, that's correct. 12 MR. MARK SANDLER: All right, and if you 13 had to describe again, briefly, the nature of your duties 14 as a Deputy Chief Coroner during that period of time, what 15 would you say? 16 DR. JAMES YOUNG: I'd say it was the best 17 job I probably ever had, because your -- your work is to - 18 - really to supervise and become involved in many of the 19 very interesting cases that are going on to work with the 20 regional coroners, often with local coroners to conduct 21 inquests, to be a -- deal with police and Crown attorneys. 22 So it's a -- it's the position that really 23 -- well, I had responsibilities both for the movement and 24 -- and keeping inquests going, but in -- in later times, 25 there was both an Investigative Deputy and a -- and a
921 Deputy of Investigation, so I sort of did both at that 2 point in time. 3 MR. MARK SANDLER: All right. And we see 4 that in March of 1990, you became the Chief Coroner for 5 the Province of Ontario and held that position until April 6 the 28th of 2004. 7 Is that right? 8 DR. JAMES YOUNG: That's correct. 9 MR. MARK SANDLER: And your offices were 10 located where? 11 DR. JAMES YOUNG: 26 Grenville Street. 12 MR. MARK SANDLER: And while you served as 13 the Chief Coroner for the Province of Ontario, you also 14 held other positions. We see, looking immediately below, 15 that you were the General Inspector of Anatomy for the 16 Province of Ontario during that time -- same time frame 17 and -- and is that a position that comes with the Chief 18 Coroner's job? 19 DR. JAMES YOUNG: Traditionally, it is. 20 The Chief Coroner is also the General Inspector of Anatomy 21 for the Province. 22 MR. MARK SANDLER: And -- and in a line, 23 what does the General Inspector of Anatomy in the Province 24 do? 25 DR. JAMES YOUNG: Administers the -- the
931 Anatomy Act, and the Anatomy Act is -- has two (2) 2 components; one (1) is -- is the disposition of unclaimed 3 bodies, and the second is the supplying of -- and the care 4 control of -- of cadavers that are -- are donated to 5 medical schools for medical teaching. 6 MR. MARK SANDLER: All right. And we see 7 that a little under four (4) years after you became the 8 Chief Coroner for the Province of Ontario, you became the 9 Assistant Deputy Minister of Public Safety within the 10 Ministry of the Solicitor General and Correctional 11 Services, again, within the Province of Ontario. 12 Is that right? 13 DR. JAMES YOUNG: That's correct. 14 MR. MARK SANDLER: And what were your 15 duties in connection with that position as Assistant 16 Deputy Minister? 17 DR. JAMES YOUNG: Assistant Deputy 18 Minister was the person that ran the Public Safety 19 Division. The Ministry of the Solicitor General, at that 20 time, was made up of -- of a number of divisions; the 21 Policing Services Division who -- who were in charge of 22 setting the standards and -- and administering municipal 23 police forces in Ontario; they were -- they had replaced 24 the Ontario Police Commission as the body that ran police 25 college and did various things.
941 The OPP were the largest division within 2 the Ministry. Corrections were in and out of the Ministry 3 at various times; sometimes they were standalone ministry, 4 sometimes they were part of the ministry. And then my 5 division, which was the Ministry of Public Safety. 6 The Ministry of Public Safety then had 7 responsibility for the Centre of Forensic Science. The 8 Director of the Centre of Forensic Science would report to 9 me, the Fire Marshall of -- of Ontario reported to me, the 10 head of what was then Emergency Measures Ontario and, 11 later became Emergency Management Ontario, reported to me. 12 And I had responsibility for the -- for the ani -- for 13 animal welfare in the -- in the Province, as well, the 14 Humane Society. 15 MR. MARK SANDLER: And, strictly speaking, 16 would the coroner's office also fall within that -- 17 DR. JAMES YOUNG: Oh, yes, of course. 18 MR. MARK SANDLER: So -- so in one (1) 19 sense, you were reporting to yourself? 20 DR. JAMES YOUNG: Well, I -- no, I 21 reported in turn to -- the Deputy Minister. 22 MR. MARK SANDLER: All right. And then we 23 see in April of 2002, you became the Assistant Deputy 24 Minister of Public Safety Division. This was within the 25 Ministry of Community Safety and Correctional Services,
951 Province of Ontario. 2 Now, did that represent a -- a 3 reconfiguration within government or -- or different 4 duties on your part? 5 DR. JAMES YOUNG: This is -- which year? 6 I'm sorry, Mr. Sandler? 7 MR. MARK SANDLER: April 2002. 8 DR. JAMES YOUNG: This is -- this is the 9 Commissioner's role you're talking about, or the Assistant 10 Deputy Minister? 11 MR. MARK SANDLER: The Assistant Deputy 12 Minister. 13 DR. JAMES YOUNG: The Assistant Deputy 14 Minister -- no, that's no change. That's just a renaming. 15 That's -- that's a position I held straight through to 16 2002. 17 MR. MARK SANDLER: All right. So that 18 whether characterized as the Assistant Deputy Minister of 19 Public Safety within the Solicitor General's ministry or 20 is Assistant Deputy Minister of Public Safety as a 21 division within the Ministry of Community Safety and 22 Correctional Services, your duties were largely the same? 23 DR. JAMES YOUNG: Exactly. 24 MR. MARK SANDLER: And -- and you held 25 that position commencing, as we said earlier, about four
961 (4) years into your term as Chief Coroner, and extended 2 slightly past the time that you resigned as the Chief 3 Coroner. 4 Am I right as to that? 5 DR. JAMES YOUNG: That's correct. 6 MR. MARK SANDLER: And then we see, moving 7 up under "previous appointments" to June 2002 to April 8 28th, 2004, Commissioner of Public Safety and Security, 9 Province of Ontario. And again, that's a position that 10 you came to approximately two (2) years before you 11 resigned as the Chief Coroner. 12 What did that position entail? 13 DR. JAMES YOUNG: That position arose out 14 of the events in -- in New York of -- of 911, and I 15 informally held many of the responsibilities before they 16 were actually formalized into an office called the 17 Commissioner. And the Commissioner's Office underwent 18 three (3) name changes during the next brief period. 19 But it arose out of the concerns of the 20 Premier following 911 that -- that we needed to reorganize 21 and think of government in a different way. And, so, what 22 the Premier asked me to do was to concentrate, in 23 particular, in getting Ontario ready and being prepared in 24 the age when we -- when we were worried about terrorism in 25 regards to three (3) elements.
971 The first was to be a security advisor to 2 the Premier, so to establish a relationship with CSIS and 3 the RCMP, in addition to the relationships I held with OPP 4 over many years. And -- and to become known in the -- in 5 the security community and act as a -- as a independent 6 advisor to the Premier on these matters. 7 The second was to increase our -- our 8 readiness for, particularly, terrorist events in Ontario, 9 post 911. 10 And third was to pay special attention and 11 work, in particular, with America authorities on -- and in 12 particular, on border issues and homeland security issues. 13 Because of a growing recognition that the 14 border was potentially the very serious choke point in 15 Ontario -- where would we -- if -- if the Americans were 16 instituting too much security or weren't confident in the 17 measures that Canada were taking and increasing amount of 18 security around the -- along the border, that this would 19 affect the overall economy of Ontario, given that over 80 20 percent of our trade is with the Unites States and Windsor 21 and Niagara, and the Ontario checkpoints are the key 22 elements in doing that. 23 So, it involved a lot of work with the 24 Premier, with the Minister, on my own, in and out of 25 Washington with Alcohol, Tobacco, Firearms with the
981 formation of homeland security, et cetera. And -- and 2 working in Ontario on programs such as if the border was 3 closed where would we park all the cars, how would we 4 control the 401, how would we deal with terrorist issues, 5 how would we increase the security at border points like 6 the bridges and tunnels, et cetera. 7 MR. MARK SANDLER: Okay. So, if we 8 divided your time as a chief coroner into three (3) 9 categories -- in the -- in the early years, you indicated 10 that your offices were in Grenville. Then you served both 11 as Chief Coroner and as an Assistant Deputy Minister, and 12 during that time frame where were your offices located or 13 did you have more than one (1) office? 14 DR. JAMES YOUNG: I had more than one (1) 15 office. At my peak, I had three (3), but I had two (2) 16 pretty much from '94 on. 17 MR. MARK SANDLER: All right. And how 18 would you distribute your time as between the offices? 19 DR. JAMES YOUNG: Well, on an as-need 20 basis, and I generally went to the coroner's office when I 21 started in the morning, which is usually at 6:30 or 7:00, 22 and then worked my way through. But I did it depending 23 what the issues of the day were, and where -- where my 24 appointments took me, and whatever was going on. 25 But on a -- roughly, during the time I had
991 those two (2) jobs, I was probably about fifty/fifty 2 (50/50) between the two (2) jobs, but I would have runs at 3 various things. 4 MR. MARK SANDLER: All right. 5 DR. JAMES YOUNG: For example, you know, 6 if I think of 1998, you were -- you and I were involved in 7 another Commission, the Kaufman Inquiry, and I spent a lot 8 of time in 1998 with the Centre of Forensic Science. In 9 fact in '97, '98 and '99 on -- on that. 10 That was also the year that I -- that I 11 managed the ice storm for Ontario. It was the year that I 12 went to Africa to deal with the death of the President 13 Elect of Nigeria in jail, and then I went to assist Dr. 14 Butt in Swi -- with Swiss Air for a couple of months. So, 15 it varied, you know; that's typical of what happened. It 16 varied depending what the issue was. 17 MR. MARK SANDLER: All right. And during 18 the last two (2) years of your term as the Chief Coroner, 19 you referred to the fact that, in effect, you had three 20 (3) offices. And, again, would you distribute your time 21 very similarly to that which you've described to the 22 Commissioner; based upon needs, starting off at the Chief 23 Coroner's Office, and -- and moving around as -- as 24 required? 25 DR. JAMES YOUNG: Yeah, I -- probably the
1001 need at that point in time -- at that particular point in 2 time was -- was greater in the Commissioner's Office, 3 because that was a role that was being developed. 4 We were -- we were very busy developing the 5 terror at post-911 in that -- in that regard. That was 6 probably at least 50 percent of my time, and the others 7 were probably closer to 25 percent. 8 But we also, then -- in 2003, I spent -- I 9 did nothing but manage SARS virtually from February until, 10 I guess it was July, the end of July. And then in August, 11 I managed the power black out. And then after that I -- I 12 had to -- there was a tainted meat problem that the 13 Province asked me to manage as well. 14 So I spent pretty much all of 2003 managing 15 -- managing crisis in -- in Government, and -- and during 16 this -- for example, SARS, I -- Dr. McLellan was doing 17 pretty much everything in the Coroner's Office. I didn't 18 -- I rarely even got to the Coroner's Office during SARS. 19 MR. MARK SANDLER: All right. Now we see 20 that after you resigned from the position as Chief 21 Coroner, you became Commissioner of Emergency Management, 22 Ministry of Community Safety and Correctional Services, 23 Province of Ontario, and that was an off shoot of the 24 earlier work that you'd done. 25 Is that right?
1011 DR. JAMES YOUNG: Same job, just a new 2 government and new title. 3 MR. MARK SANDLER: All right. And -- and 4 then we see in January of 2005 you became Special Advisor 5 to the Deputy Minister for Public Safety Canada, 6 Government of Canada. 7 So you shifted governments? 8 DR. JAMES YOUNG: Yeah, I should mention 9 just for clarity, when I shifted the title of the 10 Commissioner's role, I remained the ADM of Public Safety 11 as well. So I -- I resigned as Chief Coroner, but I kept 12 two (2) of the three (3) jobs. Still just one (1) pay 13 cheque unfortunately, but... 14 MR. MARK SANDLER: All right. And then 15 your curriculum vitae also reflects teaching positions. 16 We see -- 17 COMMISSIONER STEPHEN GOUDGE: Before you 18 turn to that, can I just ask a couple of questions, Dr. 19 Young, about government organization? 20 DR. JAMES YOUNG: Certainly. 21 COMMISSIONER STEPHEN GOUDGE: Was the 22 Commissioner's job from the beginning an ADM position 23 within a ministry? 24 DR. JAMES YOUNG: No. Commissioner's role 25 actually was of Deputy Minister reign.
1021 COMMISSIONER STEPHEN GOUDGE: But 2 reporting directly to the Premier, reporting to a 3 Minister, reporting -- 4 DR. JAMES YOUNG: No. Generally as soon 5 as anything happened, it was reporting to the Premier. 6 Day by day I reported to the Minister as well, but -- 7 COMMISSIONER STEPHEN GOUDGE: Which 8 Minister? 9 DR. JAMES YOUNG: The Mini -- 10 COMMISSIONER STEPHEN GOUDGE: Sol Gen -- 11 DR. JAMES YOUNG: Sol Gen Community 12 Safety, whatever we called the Minister at the time. 13 COMMISSIONER STEPHEN GOUDGE: Okay. And 14 when you took on the Commissioner's role in 2002, was that 15 a set of added functions to your ADM function? 16 DR. JAMES YOUNG: Yes. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 DR. JAMES YOUNG: Yes, that was -- because 19 of the nature and the cross-cutting nature of that, that 20 was -- some of it was I already had a mandate to -- in 21 regards to emergency management, because I'd already -- 22 COMMISSIONER STEPHEN GOUDGE: As ADM? 23 DR. JAMES YOUNG: As ADM. I'd already, 24 for example, managed the ice storm. 25 COMMISSIONER STEPHEN GOUDGE: Right.
1031 DR. JAMES YOUNG: But I -- but this was a 2 special emphasis, and a -- and our experience had taught 3 us by that time that when things happened, the Premier's 4 Office weren't too slow in phoning. I'd end up over there 5 very quickly, so the reporting was both through the 6 Ministry, but through Cabinet Office and Premier's 7 Offices. 8 COMMISSIONER STEPHEN GOUDGE: Okay. Now 9 in a sort of line reporting sense, to whom did the Chief 10 Coroner of Ontario report? I recognize you held the 11 positions to which you report. 12 DR. JAMES YOUNG: The ADM of Public 13 Safety. 14 COMMISSIONER STEPHEN GOUDGE: It was 15 always ADM Public Safety? 16 DR. JAMES YOUNG: Yes. 17 COMMISSIONER STEPHEN GOUDGE: It was never 18 the Commissioner of Public Safety? 19 DR. JAMES YOUNG: No, as long as I was 20 there it was the -- it was the ADM of Public Safety. 21 COMMISSIONER STEPHEN GOUDGE: Is it the 22 Commissioner now? 23 DR. JAMES YOUNG: No, the -- they -- 24 they've divided it differently now; there is the 25 Commissioner's role and I'm not sure what -- they've
1041 divided the pieces that I had that roughly the 2 Commissioner has the role that I had; the two (2) roles 3 combined with some slight differences, but I -- I have to 4 admit, I'm -- 5 COMMISSIONER STEPHEN GOUDGE: Since 2005 6 the reporting relationships may have changed and you're 7 not that familiar with them? 8 DR. JAMES YOUNG: Exactly. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 MR. MARK SANDLER: All right. 11 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 12 Sandler. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: At page 4 of your 16 curriculum vitae are listed various honours and awards and 17 -- and I don't intend to -- to do justice to what is 18 contained in your curriculum vitae, but simply highlight 19 some features here. 20 It reflects at Item 4 that you received an 21 award for outstanding contribution to coroner's work, 22 given by the International Association of Coroners and 23 Medical Examiners in June of 2001, is that right? 24 DR. JAMES YOUNG: Yes, sir. 25 MR. MARK SANDLER: And the John R. Hunt
1051 award for outstanding contribution to forensic sciences, 2 given by the American Academy of Forensic Sciences in the 3 year 2000, is that right? 4 DR. JAMES YOUNG: Yes. Yes. 5 MR. MARK SANDLER: At page 5 of the 6 curriculum vitae, it reflects that you were first a Fellow 7 of the American Academy of Forensic Sciences and under 8 committee memberships became its President in February of 9 2006 and served in that position for a year, is that 10 right? 11 DR. JAMES YOUNG: That's correct. 12 MR. MARK SANDLER: And the Commissioner 13 has already heard something about the American Academy of 14 Forensic Sciences; I won't ask you anything more about it 15 right now. 16 Page 6 of the curriculum vitae, the second 17 last entry reflects that you served as a member of the 18 Board, the International Association of Coroners and 19 Medical Examiners, from 1995 to 2004. 20 And if we look at the following page -- 21 page 7, about half the way down -- we see that you were 22 the President of that international association from 1993 23 to 1994, is that right? 24 DR. JAMES YOUNG: That's correct. 25 MR. MARK SANDLER: Now, if I can look with
1061 you at page 11 of your curriculum vitae, contained in this 2 document are various refereed and non-refereed 3 publications, presentations that you've made, speeches, 4 and the like. 5 I want to ask you just about some of the 6 entries, though the entire curriculum vitae is -- is 7 available to -- to all parties. We see under "Papers 8 Presented" at page 11 an entry, Number 3: 9 Charles Smith, C.M. McLachlin, J.G. 10 Young; optic nerve injury in the Shaken 11 Baby Syndrome; form of fatal child 12 abuse, March 1991, Chicago, Illinios. 13 And I'm going to come back to that in a 14 moment. 15 If you look at the next page, page 12, 16 we'll see Item 8, an item: 17 "Charles Smith and others..." 18 Your name is the last name there: 19 "...accidental bathtub drowning in 20 infancy and childhood. American Academy 21 of Forensic Science's annual meeting, 22 February 19th, 1993 in Boston, 23 Massachusetts. 24 Item 10, Charles Smith, N. Denic, and 25 J.G. Young, trauma to the fetus
1071 associated with major vehicle accidents, 2 poster presentation at the American 3 Academy of Forensic Science's annual 4 meeting in San Antonio, Texas in 1994. 5 Item 11, Denic, Smith, and Young, death 6 from child abuse versus falls. American 7 Academy of Forensic Science's annual 8 meeting February 1994, San Antonio, 9 Texas. 10 And Item 12, Smith, Denic, and Young, 11 medicolegal investigation of heart 12 disease in the young. The Toronto 13 Experience, American Academy of Forensic 14 Science's annual meeting, February 1994, 15 San Antonio, Texas." 16 The issue that arises when one looks at the 17 -- the -- the topics that -- that are addressed in those 18 presentations or papers is that they appear to be somewhat 19 pathologically driven, so -- so I want to ask you, what 20 role did you play in -- in those presentations or papers, 21 just -- just to make it clear to the Commissioner -- 22 DR. JAMES YOUNG: Sure. 23 MR. MARK SANDLER: -- what your expertise 24 is and is not? 25 DR. JAMES YOUNG: Sure. My role -- all of
1081 those papers -- the -- the critical thing is the order 2 that the -- the names appear; my name is at the last 3 because that's where it deserves to be. 4 They're being done as part of my office. 5 They're coming out of the Toronto office, or the Ontario 6 office, I should say. Because they're coming out of the 7 Ontario office, often in university settings and -- and 8 academic centres then the head of that particular area's 9 name appears on the paper. 10 I usually, as a courtesy, would see the 11 papers -- for example, Mike Shkrum, paper 4 from London, 12 since the research was done on coroner's cases, he would - 13 - he would ask that my -- me -- whether my name could 14 appear; he would show me the paper as courtesy. 15 If I had anything to say about it, I 16 would -- I would say so, but I wasn't writing the paper or 17 generating the research or presenting the paper in -- in 18 any instance. I was simply one (1) of the authors, and it 19 was through my office. And it's -- it's a way of sort of 20 being able to say that an office is -- this is the body of 21 research that the office is doing right now. 22 MR. MARK SANDLER: All right. Now, I -- 23 it won't surprise you that I isolated presentations where 24 Charles Smith's name appeared, -- 25 DR. JAMES YOUNG: Mm-hm.
1091 MR. MARK SANDLER: -- and -- and to your 2 knowledge was he presenting these various papers at the 3 conferences that are referred to therein? 4 DR. JAMES YOUNG: Either he was or in the 5 case, for example, of Number 11, I imagine it was Dr. 6 Denic. Dr. Denic was a Fellow that was with Dr. Smith and 7 now practices in Newfoundland, so likely Dr. Denic gave 8 the paper. 9 And Dr. Denic continues to go to the 10 American Academy meetings, so I -- this is probably one 11 (1) of his early exposures to the American Academy. 12 MR. MARK SANDLER: And apart from your -- 13 your role in the papers themselves, would you present at 14 these conferences at all? 15 DR. JAMES YOUNG: I did on -- certainly 16 for many years I presented many cases at the American 17 Academy, but my cases would -- would generally be around 18 issues that I was involved in as managing a coroner's 19 office or I remember sitting on panels about medical 20 examiners in coroner systems and comparisons. 21 I -- I remember viewing a panel following 22 the Coffin Inquiry about miscarriages of justice and 23 lessons learned. That would be the kind of -- the kind of 24 presentations that I would be involved in. Some of the 25 inquests I may have conducted things that we had learned
1101 from those. 2 So they would be along the lines of what I 3 was familiar with not -- not pathology topics. 4 MR. MARK SANDLER: All right. Were you 5 present when Charles Smith would present, on occasion? 6 DR. JAMES YOUNG: Sometimes. You know, as 7 -- my wife would say when she'd go to the meeting, What's 8 the point of me going 'cause you're always at meetings, 9 and I -- you know, you don't become the president of a 10 large organization without going to a lot of meetings, a 11 lot of committees. 12 So I would be at some of them, but I also 13 spent a lot of time on the affairs of the Academy. 14 MR. MARK SANDLER: All right. We see at 15 page 19 of your curriculum vitae and -- and following -- 16 that you presided over a number of very significant 17 inquests that were held in the Province of Ontario, is 18 that right? 19 DR. JAMES YOUNG: Yes. 20 MR. MARK SANDLER: And would you continue 21 to perform that role as a Chief Coroner in cases of -- of 22 importance within the Province? 23 DR. JAMES YOUNG: When I had time. I 24 didn't do a lot as a Chief Coroner, I did do the Bulgin 25 inquest, for example, I think I did the Fluelling inquest,
1111 I -- yes, I did sort of -- Jonathon (phonetic) -- you 2 know, I did a number of them. Not as many as I -- 3 everything from Tony Sullivan down. 4 I was doing the Tony Sullivan inquest when 5 -- when I was named as the Chief Coroner. It was -- it 6 was the -- actually the last day of that inquest. 7 MR. MARK SANDLER: All right. 8 DR. JAMES YOUNG: That was the last 9 liposuction inquest. So that Yeo, Rogers, Fluelling, and 10 Bulgin were done during my terms as Chief Coroner. 11 MR. MARK SANDLER: All right. Now, under 12 national and international lectures at page 26, item 15 13 reflects comparison between coroner's and medical 14 examiner's system; the presentation to the Canadian 15 Association of Forensic Sciences in 1992, Halifax, Nova 16 Scotia. 17 And this seems as convenient a point as any 18 to -- to ask you this question. We've heard some 19 evidence, relatively little, about the differences between 20 the coroner's and medical examiner's system. 21 And -- and you're familiar with those 22 differences, are you not? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: And have lectured and 25 spoken about those differences at various occasions?
1121 DR. JAMES YOUNG: Yes, including Shipman 2 inquiry in -- in England. 3 MR. MARK SANDLER: All right. And could 4 you advise the Commissioner as to your views as to whether 5 a medical's exam -- a medical examiner's system should be 6 adopted in Ontario? 7 DR. JAMES YOUNG: Okay. I think first you 8 have to sort out a little bit of terminology. There are 9 as many coroner systems as there are jurisdictions, and 10 when you say the word, "coroner's system" in any 11 jurisdiction, the first thing you have to do is define 12 what it is and what it involves. 13 So if you ask somebody in the United States 14 or from the United States about a coroner system, what 15 they generally are thinking about is a system that is a 16 county-based system where the coroner is an elected 17 official and holds an elected office and then runs the 18 death investigation system by hiring pathologists. As a 19 rule, they often are very under -- under-funded systems 20 and the -- there's been a major push in the United States 21 to improve and increase the level of sophistication in 22 those offices. 23 A few states have developed systems where 24 they still are elected, but they have to be a physician; 25 the other, you can be anyone who is elected. What arose
1131 then in the United States were medical examiner systems in 2 some of the larger cities -- and the reason at the time 3 was as a -- hopefully as a means of getting some 4 additional funding, but as a means of dealing with the 5 large volumes of homicides, in particular, and sorting out 6 homicides from non-homicides. So the fundamental role of 7 those systems was to be able to deal with the large number 8 of homicides and do so successfully and produce quality 9 work to go to -- to Court. 10 The Ontario Coroner's System, as with -- 11 and -- and within Canada, there are no two (2) systems 12 there identical. So there are coroner systems that are 13 medical; coroner systems that aren't. There are pure ME 14 Systems and there are -- I really think the Ontario System 15 is -- is really a blend of a bit of both. 16 The Ontario Coroner's System, all of the 17 investigating coroners and the people who go to the scene 18 are -- are licensed physicians. So we -- we gain the 19 knowledge of a licensed physician, going to the -- to the 20 scene, working with the police, and what that gives you is 21 a better assessment at -- at field level of what's an 22 issue and what isn't; when you need to autopsy, when you 23 don't. 24 And -- and one (1) of the results you find 25 is that the autopsy rates in places where the higher the
1141 training of the people that go to the scene, the lower the 2 autopsy rates because they generally can sort out. 3 It also gives us the advantage that when 4 you're dealing with families and -- and families -- these 5 are all the difficult deaths and the sudden or unexpected 6 deaths -- and managing families and managing family 7 expectations is an enormous role that both the local 8 coroners and the Regional Coroners do, so the system, 9 first and foremost, does that. 10 But really the Ontario System does three 11 (3) things; the -- the first is to provide information for 12 the -- accurate information for the family, both for their 13 -- their emotional needs, but also for their legal needs 14 in order to settle estates. 15 The second is to provide quality work -- 16 investigations and information for the Criminal Justice 17 System in the event of homicides. 18 And the third, very important, function is 19 to learn from the deaths and to make recommendations to 20 prevent similar deaths in future. 21 And originally this was completely done 22 through the Inquest system, but then with time, with the 23 advent of the -- our committees and other mechanisms of 24 solving problems, we have found alternate ways, as well, 25 of reviewing cases, and making recommendations, and -- and
1151 resulting in changes. 2 And, for example, when I got on the subway 3 today and there's a big thick mat on the subway. Whenever 4 I go over that mat I remember that's because someone who 5 was blind fell down the -- and was killed on a train. And 6 with the advent of those mats, that's a warning to people 7 not to step over that line, and there's a different feel 8 under it, so it can be anything from something that's 9 standard to almost any other issue that the Inquest 10 system. 11 So our -- our goal, in fact, was to -- was 12 to -- to produce a system that had the best features of a 13 medical examiner's quality forensic pathology, along with 14 the inquest and the preventative function. 15 And because we're centering it on doctors, 16 then -- then we are -- are able to do a better job, I 17 think, at the front end; deal with families more 18 completely and have the -- and try to build the forensic 19 pathology part. 20 And I'm sure that I'll -- I'll have a 21 chance to explain all of the things we did with forensic 22 pathology over the years. But suffice it to say that -- 23 that if I look at the issue here and I look at the system, 24 what we're trying to do here is; we're trying to build 25 better supervision throughout the forensic, and in
1161 particular, the pediatric forensic, and particularly at 2 the high end of it; and I understand that and I 3 acknowledge it and I think it's -- it's a valuable 4 exercise. 5 That can be built into the Coroner's System 6 very well by -- by putting more resources into the -- into 7 the system under the forensic part -- pathology part of 8 the system. The Chief Forensic Pathologist is a Deputy 9 Chief Coroner, is -- is next to the Chief Coroner; there's 10 nothing in the system that would prevent a pathologist 11 becoming the Chief Coroner. 12 I could easily envision that some day if 13 the right person with the right administrative skills did 14 it, so that I -- I look at the systems around the world 15 and I say, What do they need? 16 They need a strong Act, they need good 17 funding and they need leadership. Whether the system's a 18 ME system or whether it's a coroner's system, they all -- 19 if they're going to succeed -- that's what they need, and 20 that's usually what they lack is -- is all three (3) or 21 one (1) of those three (3). 22 Because, traditionally, coroner's systems 23 and medical examiner's systems are not sexy, and they 24 don't get well-funded in governments; very hard to talk 25 governments into giving money to -- to this field.
1171 So that I -- I think you're fixing the 2 wrong problem by thinking of changing to an ME system. I 3 think what you end up doing, is you end up throwing out 4 the baby with the bath water. You end up -- instead of 5 making the system better, and making the system have all 6 of its components, you settle for a component that's 7 focussed only on courts and on two hundred (200) homicides 8 a year in Ontario. 9 You throw away all of the preventative 10 aspects, and you disrupt the system. If you disrupt the 11 system, the risk you run -- if I was a local coroner, and 12 you say, We're throwing out coroner's systems, we don't 13 value you. My reply would be, Then you find somebody to 14 go and get out of bed in the middle of the night and run 15 the system. 16 That means you have to find and train 17 people at the ground level. It means you have to start 18 anew because someone in the ME's office has to deal with 19 the thousands of families ever year that have issues and 20 complaints. 21 You have to re-jig and rebuild the whole 22 system from scratch. I think it's a -- a wrong solution 23 to the problem. And it's not one (1) that the Office of 24 the Chief Coroner wants. My understanding with their 25 discussions is, they would like to see a strengthening of
1181 -- of the Chief Forensic Pathologist. 2 But everyone including Dr. Pollanen wants 3 it to stay within the Office of the Chief Coroner, in a 4 coroner system. But I think the -- the misnomer is the 5 name. Ontario's Coroner System isn't like any other 6 coroner's system in the world. 7 It's a really much more of an amalgam and 8 an attempt, and one that still needs improving and is 9 still growing, and could be improved. But it's meant to 10 be the best of an ME system and the best of a coroner's 11 system. 12 And that's the direction I would advocate 13 that you continue to steer the province. 14 MR. MARK SANDLER: Okay. 15 COMMISSIONER STEPHEN GOUDGE: Let me just 16 ask one (1) follow-up question, Mr. Sandler. I'm more 17 conscious then anybody of the focus that I have; being 18 pediatric forensic pathology and how to improve that 19 component. 20 Is there any way in which, from your 21 experience, the medical examiner model has some lessons we 22 might learn about how to use, more effectively, pediatric 23 forensic pathology, that we could bring to Ontario? 24 DR. JAMES YOUNG: Oh, certainly. 25 Certainly, I think -- I think you can look at any of the
1191 ME systems and say, How do we train, how do we -- I mean, 2 the issue of -- of court monitoring is an enormous issue, 3 and one (1) I'm sure we'll -- we'll get into in detail. 4 But it's a -- it's a problem everywhere. I 5 was -- 6 COMMISSIONER STEPHEN GOUDGE: Yes. That 7 doesn't depend on whether you've got an ME system or a 8 coroner's system. 9 DR. JAMES YOUNG: No, exactly. And I was 10 talking to Dr. Cordner about this a few weeks ago in Leon, 11 and we -- we had dinner and we were talking about it, and 12 how do you do it, and how often can you do it. 13 But -- but looking at those systems who do 14 a lot of the court work, and saying, How is it you do it, 15 and how do you supervise people? I mean, a real problem 16 here is -- is, as we'll get into, we built a system to try 17 to build safety into system at -- at the level of the 18 least experienced. 19 The problem is the system broke down at the 20 top end, not at the bottom end. And we put a lot of 21 thought and a lot of money and a lot of care into trying 22 to improve the quality, and we succeeded, but we -- we 23 failed at one (1) end of the system; the end I wouldn't 24 have expected the failure to be at. 25 But -- and how we build that in, I think,
1201 is -- is your challenge, and I'm certainly happy to assist 2 any way I can. 3 COMMISSIONER STEPHEN GOUDGE: So I take it 4 your thought would be, look at the other systems for what 5 they can tell us about pediatric forensic pathology? 6 DR. JAMES YOUNG: Absolutely. Look at 7 them; steal from them blatantly. Get all the good ideas, 8 because ours in an amalgam of all of those systems. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 DR. JAMES YOUNG: Just don't -- don't 11 throw the baby out with the bath water. 12 MR. MARK SANDLER: All right. 13 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 14 Sandler. 15 16 CONTINUED BY MR. MARK SANDLER: 17 MR. MARK SANDLER: We're going to come 18 back to some of the systemic issues a little bit later in 19 the piece. But what I want to do now, Dr. Young, with 20 you, is take you through the events that are of interest 21 to the Commissioner, largely in chronological fashion. 22 And we're going to start, if we may, in 23 1988. And as I recollected, you were the Deputy Chief 24 Coroner in 1988, am I right? 25 DR. JAMES YOUNG: That's correct.
1211 MR. MARK SANDLER: And what, if any 2 dealings would you have had with Dr. Smith from 1981 when 3 he commenced his work performing coronial autopsies, until 4 the late 1980's? 5 DR. JAMES YOUNG: I certainly -- he was 6 doing coroner's autopsies when I came to the office. I 7 can't remember whether I knew him or didn't know him from 8 coroner's courses. I doubt I had much familiarity with 9 him before I came because at that point in time the 10 forensic pathologists were not having meetings and were 11 not being trained. 12 And so I -- in -- in the early '80s, this 13 is, be -- when I first came to the office and well, until 14 1990s, in fact. So I -- I knew him then as I came. I was 15 the Regional Coroner for Toronto. He was doing many of 16 the pediatric deaths in -- at Sick Kids. 17 So he and two (2) or three (3) other 18 people, Dr. Cutz and I can't remember who else was doing 19 them at that time at Sick Kids. Dr. Silver did them for a 20 while and Dr. Wilson came and other people have come and 21 gone, but I -- Dr. Cutz did a lot of them and I -- Dr. 22 Manson did them. I guess it was Dr. Manson, Dr. Cutz, and 23 Dr. Smith, I think, who were doing them, at that time. 24 So I was certainly familiar with all of -- 25 all of them and would see them around -- around the
1221 coroner's office. 2 MR. MARK SANDLER: All right. And what, 3 if any, opinion did you form of Dr. Smith in the late 4 '80s? 5 DR. JAMES YOUNG: He was -- he is still 6 aroun -- around my age. He was -- 7 COMMISSIONER STEPHEN GOUDGE: I guess that 8 does not change -- 9 DR. JAMES YOUNG: We hope -- we're both -- 10 no, we're both aging quite rapidly right now, I think, but 11 the -- but we're the same age or around the same age. We 12 graduated from medical school around the same time in 13 different schools, but he was clearly -- I -- I became -- 14 got to know Dr. Phillips, who was the Chief at that time, 15 at Sick Children's -- and he was clearly a protege of Dr. 16 Phillips and someone that Dr. Phillips was bringing along 17 and -- and nurturing. 18 So the fact that, you know, I have great 19 respect for the Hospital for Sick Children and -- and the 20 sta -- medical staff. The fact that he's there, he's in a 21 teaching hospital and he's being mentored by -- Dr. 22 Phillips has a worldwide reputation and, you know, is -- 23 is highly regarded in -- particularly in the -- in the 24 field of liver that -- you know, that -- and Dr. Smith was 25 very interested and clearly, the most interested of the
1231 doctors in -- in -- continuing to do forensic work. 2 So that, to my mind, was good news. 3 4 CONTINUED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: All right. I'm going 6 to take you to the Amber case. And if you would look at 7 the overview volumes that you have to your right; Volume I 8 of the overview report. 9 COMMISSIONER STEPHEN GOUDGE: The white 10 volumes. 11 DR. JAMES YOUNG: Okay. 12 13 CONTINUED BY MR. MARK SANDLER: 14 MR. MARK SANDLER: And if you go with me 15 to Tab 1 of Volume I. 16 DR. JAMES YOUNG: Mm-hm. 17 MR. MARK SANDLER: You'll see this is the 18 overview report concerning baby Amber. It's PFP143724. 19 DR. JAMES YOUNG: Yeah, I'm there. 20 MR. MARK SANDLER: Now, Dr. Young, I'll 21 indicate to you just to assist in refreshing yours and -- 22 and everyone else's memory that this is the case that 23 involved SM, a young babysitter who was charged with 24 manslaughter in the death of Amber, who was under her 25 care.
1241 And as we'll see in a few moments, the 2 position of the defence was that the child died in an 3 accidental fall on the stairs. Mr. Justice Dunn 4 ultimately acquitted SM after a trial in Timmins, Ontario. 5 And if I can take you to page 14 of the overview report, 6 paragraph 37, do you have that? 7 DR. JAMES YOUNG: Yes. 8 MR. MARK SANDLER: And it reflects that 9 Dr. Ouchterlony, who have -- was a coroner known to you, 10 at that time, I take it? 11 DR. JAMES YOUNG: Yes, he was one (1) of 12 the Toronto coroners. 13 MR. MARK SANDLER: He completed the 14 coroner's investigation statement and -- and noted that 15 the cause of death was cerebral edema due to head injury 16 after an accidental fall. And then he provided reasons 17 for not ordering an autopsy as reflected in his 18 investigation statement. 19 And -- and he reflects in the middle of the 20 quoted passage: 21 "That I had a feeling that foul play was 22 not likely and did not order an autopsy. 23 A few days later, I received a call from 24 Dr. James Young, Deputy Chief Coroner of 25 Ontario, advising me that an autopsy was
1251 requested due to a high level of 2 suspicion of foul play in this case. At 3 that point, it seemed the body would 4 need to be exhumed for autopsy." 5 And -- and we've seen evidence as reflected 6 in the overview report that -- that indeed Amber's body 7 was exhumed and was the subject of a post-mortem 8 examination by Dr. Smith, and that accords with your 9 understanding, as well? 10 DR. JAMES YOUNG: Yeah, I don't 11 necessarily agree with that statement, but I -- 12 MR. MARK SANDLER: Well, that's what I'm 13 about to ask you. 14 DR. JAMES YOUNG: Okay. 15 MR. MARK SANDLER: What do you say about 16 what he reflects the -- as the information communicated by 17 you to him? 18 DR. JAMES YOUNG: I -- I believe that what 19 my conversation to him would be whether or not there's a 20 high index of suspicion; a young child dying in the -- in 21 this circumstance would require an autopsy. It -- it -- 22 the degree of concern wouldn't be something I -- I think 23 that I would reflect. 24 The -- the problem is until we've got as 25 much information as we can get, we shouldn't be ruling an
1261 accident or a -- or a homicide in or out, and we don't 2 have the proper information. 3 I mean, children dying, unless there's a 4 very good reason not to do an autopsy, there -- it's 5 pretty much a mandatory situation, just as it is in any 6 case where -- where foul play is -- is indicated in an -- 7 in an adult. 8 MR. MARK SANDLER: Well, recognizing the 9 importance of doing an autopsy in a sudden and unexpected 10 death of a young person, had you received information from 11 any medical practitioner that -- that suggested that there 12 was a high level of suspicion of foul play in this case? 13 DR. JAMES YOUNG: Well, I had received 14 information from the -- from the SCAN Team from Dr. Driver 15 that they were concerned that there wasn't an autopsy and 16 that they had concern that there -- that it -- it may not 17 represent an accidental death, so certainly they had 18 expressed concern. 19 I -- I don't know that I would agree with 20 the word "high". I -- I'm not sure I can -- I can say 21 whether what they said. I -- I remember Dr. Driver 22 phoning me. I remember being concerned that -- that this 23 really should have been an autopsy and that it needed to 24 be sorted out. 25 MR. MARK SANDLER: Do you have an
1271 independent recollection now of your conversation with Dr. 2 Ouchterlony? 3 DR. JAMES YOUNG: I remember phoning him 4 and saying that this required a -- an autopsy. Beyond 5 that I think I would explain much as I have now. I mean 6 that would be my standard way, but I -- you know this is 7 1988, so. 8 MR. MARK SANDLER: All right. And if I 9 can take you to page 19 of the overview report. I'm 10 sorry, let's go to page 20, if we may. 11 DR. JAMES YOUNG: Okay. 12 MR. MARK SANDLER: Paragraph 53. And this 13 reflects that on August the 12th of 1988, two (2) officers 14 on this case travelled to Ontario to interview you and Dr. 15 Driver. 16 It was established that the doctors were 17 concerned about how Amber had met her death as the injury 18 she -- she sustained was not consistent with a fall down 19 five (5) carpeted steps. 20 And the Sgt. Lavoie gives a detailed 21 account of -- of the interview that was conducted with you 22 as follows: 23 He says: 24 "We met with Dr. Young; Dr. Huxter also 25 sat in during our discussion. Dr. Young
1281 indicated there had been a 2 misunderstanding between the coroner and 3 the doctors at Sick Kids." 4 And then goes on to discuss the nature of 5 that misunderstanding. 6 "We were told that the autopsy should 7 reveal evidence of bruising between the 8 skull and -- scalp and skull, which 9 would tend to support the babysitter's 10 story, or the absence of bruising, which 11 would strongly suggest Infant Shaking 12 Syndrome. Dr. Young indicated he 13 suspected the shaking syndrome as there 14 was evidence of retinol hemorrhages, no 15 external bruising, and acute cerebral 16 edema; swelling of the brain. These 17 were all consistent with the shaking 18 syndrome and not consistent with a fall. 19 Dr. Young provided us with a Coroner's 20 warrant to retrieve all medical records 21 and so on." 22 And does that accurately reflect the 23 information that you would have communicated to Sgt. 24 Lavoie? 25 DR. JAMES YOUNG: Well, first of all, I --
1291 I don't know. I mean I can't say that it does; I -- this 2 is a meeting in 1988. When we're trying to -- we have 3 police officers who have never heard of a shaken baby 4 before. What I remember we were trying to do was impress 5 upon then that there are various explanations. 6 If -- if, in fact, I gave that level of 7 detail, what I was conveying to them was what I was told 8 by Dr. Driver were the symptoms that have been seen at 9 Sick Kids, which could be part of shaken baby. So what 10 I'm -- I -- what I believe I would be doing is saying to 11 them, These are what was found at Sick Kids. This is what 12 we have to find out whether this is shaken baby or whether 13 this is an accidental death. 14 So that I think, generally, that would 15 reflect -- I can't say -- I mean I couldn't begin to say 16 what -- exactly what I said, but for me to give that 17 detail, I have to have gotten that detail from Dr. Driver. 18 That's -- there's nowhere else I would have had it. 19 MR. MARK SANDLER: All right. And then at 20 page 21 of the overview report, paragraph 56, we see that 21 Amber's body was brought to the OCCO in Toronto for a 22 post-mortem examination on August the 19th of 1998, and 23 Dr. Smith performed the autopsy. 24 And then if you'd move to page 31 of the 25 overview report. Just to orient you in terms of the time
1301 frame involved here; at paragraph 88, we see that Dr. 2 Smith signed the completed report on November the 28th of 3 1988. Cause of Amber's death was listed as head injury. 4 And then on the following paragraph, Dr. 5 Smith and Young go to Timmins. 6 "On December the 13th, 1988, Drs. Smith 7 and Young went to Timmins to meet with 8 Crown Counsel and the police. At this 9 meeting, it was revealed that all tests 10 had been completed and the possibilities 11 previously mentioned were eliminated. 12 According to Dr. Smith and Dr. Young, 13 Amber had died as a result of a head 14 injury caused by a severe shaking." 15 And does that accurately reflect what you 16 and Dr. Smith would have communicated during an attendance 17 in Timmins? 18 DR. JAMES YOUNG: Well, it wouldn't -- it 19 wouldn't -- it is and it isn't accurate. It wouldn't be 20 accurate as to what my role on being there or what I would 21 have said would have been. It is in the sense that I'm 22 there to support Dr. Smith. 23 I was particularly concerned that I wanted 24 to meet the family and discuss things with the family. I 25 wasn't at the autopsy. I wasn't privileged -- I never
1311 looked at microscopic slides. I wouldn't reach that 2 conclusion. 3 I -- certainly, if they said to me, Is 4 there any reason you don't support those conclusions? At 5 this point in time, given what I've heard from Dr. Smith, 6 given what I've heard from Dr. Driver, I wouldn't be 7 saying, No, I have a different view of things. 8 But I -- I can't -- I haven't done any of 9 the work, I haven't reached a conclusion -- 10 MR. MARK SANDLER: Well, I appreciate that 11 you -- 12 DR. JAMES YOUNG: -- independently, so 13 would I -- would I support it in the sense that I think, 14 at that point in time, I -- I accepted Dr. Smith's -- it - 15 - it corresponded with what Dr. Driver had told me. Yes, 16 I was satisfied that -- so I wouldn't be saying, No, he's 17 wrong, but I'm not going to be giving the findings and 18 saying, These are my findings. They're not. 19 MR. MARK SANDLER: But again, I don't -- I 20 don't want you to put on a retro scope based on -- 21 DR. JAMES YOUNG: I'm not. 22 MR. MARK SANDLER: -- what we've heard --- 23 heard now, but back then, given -- given what you knew and 24 believed about Dr. Smith, if Dr. Smith expressed an 25 unequivocal opinion as to what had resulted in the case,
1321 would you not have supported it in the discussions with 2 the Crown attorney? 3 DR. JAMES YOUNG: That's what I'm saying, 4 I would have supported it, but I wouldn't have -- I would 5 not have left any impression that I was part of that 6 opinion. I mean, I always have to decide, in any case, 7 whether I support what a pathologist does or doesn't. 8 If -- if a family comes in with an autopsy 9 report and challenges it, we always have to make this 10 decision -- do we do more work or do we stand by the 11 report as it is? So, did I stand by it? Of course, I -- 12 yes, I stood by it, but I -- what I want to be clear is I 13 wasn't practising pathology. I'm not standing there 14 saying, This is my work and I agree with him. 15 It's consistent with what I know about 16 shaken baby. It's consistent with what Dr. Driver told 17 me. It's consistent with what Dr. Smith reports to me. 18 So I'm satisfied, at this point, that it's fine. 19 MR. MARK SANDLER: All right. Now, did 20 you have any understanding as to whether this case, which 21 did proceed to an arrest and charge several days later on 22 December 15, 1988, represented one (1) of or the first 23 case in which Shaken Baby Syndrome was advanced as the 24 theory of the Crown in an Ontario case? 25 DR. JAMES YOUNG: Not in an Ontario case,
1331 but in an Northern Ontario case, I believe, it was, which 2 is part of the reason -- 3 MR. MARK SANDLER: I'm sorry, you believe 4 it was what? 5 DR. JAMES YOUNG: Northern Ontario, not -- 6 not Ontario. There had been Ontario cases. 7 MR. MARK SANDLER: All right. You believe 8 it was the first case in Northern Ontario? 9 DR. JAMES YOUNG: In Northern Ontario. It 10 was certainly -- I -- I believe that Mr. Thomas, Crown 11 attorney, indicated to me that part of his concern in this 12 case was that he had not dealt with this before. 13 The Timmins Police had not dealt with this 14 issue before, which is part of the reason we had had them 15 come down originally; so they would understand what he 16 possibilities and what they were dealing with, to try to 17 increase their level of education about -- about the case 18 before decisions were made. 19 MR. MARK SANDLER: All right. Now, 20 leaving aside the Timmins case for a moment. As part of 21 your responsibilities as a Deputy Chief Coroner, had you 22 had conversations with the Hospital for Sick Children 23 clinicians or Dr. Smith generally about Shaken Baby 24 Syndrome? 25 What its indicia were and the like?
1341 DR. JAMES YOUNG: Both with -- I mean, at 2 this point in time, discussions about Shaken Baby were -- 3 were everywhere. If you went to an American Academy 4 meeting, if you went to name the National Association of 5 Medical Examiners, if you went -- you know, any 6 conference, people were talking about Shaken Baby right 7 now -- at that -- at this point in time. 8 MR. MARK SANDLER: And can I take from 9 that, that there were also discussions within the 10 coroner's office about Shaken Baby Syndrome -- 11 DR. JAMES YOUNG: Yes. 12 MR. MARK SANDLER: -- and the like? 13 DR. JAMES YOUNG: Yes. 14 MR. MARK SANDLER: All right. I mean, did 15 you have an understanding in the late 1980s or early 1990s 16 as to whether a controversy existed within the medical or 17 pathological community about Shaken Baby Syndrome, and -- 18 DR. JAMES YOUNG: Yes. 19 MR. MARK SANDLER: -- its indicia and -- 20 and whether it existed? 21 DR. JAMES YOUNG: There were certainly 22 schools of thought then, and there are schools of thought 23 now. There -- there -- have moved along in certain 24 directions, but, yes, there's always been discussion 25 ranging all the way from the frequency in some people
1351 believing it exists, some people saying it doesn't. 2 MR. MARK SANDLER: All right. And 3 similarly, were you aware back then, in the late 1980s and 4 early 1990s, that there was also a controversy that 5 existed within the medical profession and -- and 6 pathologists about the likelihood that household falls 7 could kill? 8 DR. JAMES YOUNG: Yes. Yes. There was -- 9 there was some controversy about how big the fall had to 10 be. There was lots of discussion about whether or not a - 11 - a minor fall would result in a -- in a head injury 12 serious enough to cause death. 13 R. MARK SANDLER: And did you have any 14 sense back in that -- that point in time, late 1980's and 15 early 1990s, as to where Dr. Smith and the Hospital for 16 Sick Children fell within the spectrum of opinions, both 17 as to Shaken Baby Syndrome and -- and household falls 18 causing fatal injuries? 19 DR. JAMES YOUNG: I -- I don't think I 20 could accurately say to you without using a retro scope. 21 I -- I don't recall. You know, I just simply don't recall 22 at this point. 23 MR. MARK SANDLER: All right. 24 COMMISSIONER STEPHEN GOUDGE: Was the 25 debate back then, Dr. Young, relatively new? That is, if
1361 you go back to the early '80s, and your first experience 2 as a coroner, would it have been alive then as a 3 significant -- 4 DR. JAMES YOUNG: No. 5 COMMISSIONER STEPHEN GOUDGE: -- debate 6 within the pathology community? 7 DR. JAMES YOUNG: No. It -- it was a 8 debate right around this period of time. The whole 9 issues, which I'm sure Dr. Cairns dealt with you -- with 10 about being concerned about children's deaths, and what 11 were metabolic, what weren't metabolic, what represented 12 accidents, what represented actions by other people, was 13 really beginning at this time, including Shaken Baby. 14 But it was all -- this was one (1) of the 15 great debates. And this continues as does -- as -- as we 16 watch the news right now, the kind of issue around excited 17 delirium an tasers and deaths. There are a couple of 18 these debates have been raging now for fifteen (15), 19 twenty (20) years. 20 COMMISSIONER STEPHEN GOUDGE: Shaken 21 Baby/household fall debate -- because those were really 22 two (2) alternatives within the same general debate? 23 Am I right about that? 24 DR. JAMES YOUNG: Yes, it certainly -- you 25 know, the shaken baby -- first and foremost, whether or
1371 not it even could be done -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. JAMES YOUNG: -- and I think the vast, 4 vast majority of people said, Yes, it does exist, because, 5 in some instances, people had confessed to it. And so if 6 they've confessed to doing it, and you have a set of 7 injuries, it's hard to say, Well it can't happen. 8 And so -- but, certainly, there were -- 9 there was a full range as there is on any topic of that. 10 And then the issue of how much of a fall it would take in 11 order to create a head injury. 12 Because the -- part of the argument went, 13 if minor falls cause head injuries that can result in 14 death, why don't we have a lot more children that are 15 dying all of the time, because toddlers are always falling 16 and hitting their head. 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. JAMES YOUNG: So that the debate would 19 range around that kind of an issue and that kind of a 20 discussion. 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 Thank you. 23 24 CONTINUED BY MR. MARK SANDLER: 25 MR. MARK SANDLER: Now, just given the
1381 controversy surrounding both Shaken Baby Syndrome, and the 2 extent to which household falls were likely to kill, and 3 given the fact that this was the first Shaken Baby case in 4 Northern Ontario, did you -- did it generate some interest 5 on your part as the Deputy Chief Coroner? 6 DR. JAMES YOUNG: Well, it -- it generated 7 enough interest for me to go to Timmins. I got in the 8 habit of going to Timmins without a reason, so. 9 MR. MARK SANDLER: I won't take that as a 10 reflection on Timmins. 11 DR. JAMES YOUNG: No, no, of course not. 12 MR. MARK SANDLER: And -- 13 DR. JAMES YOUNG: But I -- but, I mean, it 14 did, but it -- you know, once I'd made that trip, I wasn't 15 involved in the case after that. I -- you know, -- 16 MR. MARK SANDLER: Well, I guess that's 17 what I'm asking, if I may? 18 DR. JAMES YOUNG: Yes. 19 MR. MARK SANDLER: I guess what I'm asking 20 is, that just given the issues as you've identified them 21 to the Commissioner, and given the fact that you had gone 22 up to Timmins to address the issue with -- with the Crown 23 and -- and family, did you not monitor the case in any 24 way? 25 DR. JAMES YOUNG: There -- there isn't as
1391 -- as system of monitoring cases after that. The cases 2 brew along and there are sometimes preliminary trial, 3 sometimes not. 4 When the trial happens, the Coroner's 5 Office is completely unaware that the trial's going on. I 6 didn't become even aware of the verdict till years later. 7 But, you know, while that's happening, at that point in 8 time, we were investigating thirty thousand (30,000) cases 9 a year. 10 Time doesn't stop in the Coroner's Office; 11 people die twenty-four (24) hours a day, three hundred and 12 sixty-five (365) days a year. And, so, today's problem 13 gets superceded by tomorrow and tomorrow's by the day 14 after. Because there's always, always stuff that's 15 happening and you're -- you're running from thing to thing 16 to thing, and trying to keep track of what's going on. 17 But, in this case, given that the Crown is 18 involved, given that Dr. Smith is involved; my 19 involvement, really, I don't have an involvement at this 20 point. I'm -- they're proceeding; if they need my help 21 they'll come and get it, but I -- I'm way too busy to -- 22 you know unless Charles mentions it to me, I'm probably 23 not following it, and wasn't. 24 MR. MARK SANDLER: All right. If you'd go 25 to page 74 of the overview report, please.
1401 DR. JAMES YOUNG: 74? 2 MR. MARK SANDLER: Yes. 3 DR. JAMES YOUNG: Okay. 4 MR. MARK SANDLER: Paragraph 207. We're 5 going to move ahead in time to 1991, if we may. 6 DR. JAMES YOUNG: Mm-hm. 7 COMMISSIONER STEPHEN GOUDGE: Which -- I'm 8 sorry, which page, 74? 9 MR. MARK SANDLER: Page 74. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: And you'll see at 14 paragraph 207 that on July the 25th of 1991, Mr. Justice 15 Dunn acquitted SM and issued detailed reasons for his 16 judgment. And I'm going to take you through the reasons 17 in a moment, but I'll ask you at once; did you read the 18 reasons back in 1991? 19 DR. JAMES YOUNG: No. No, I was unaware 20 of them. I didn't -- I didn't read them because I wasn't 21 aware of them. 22 MR. MARK SANDLER: All right, were you 23 aware of the fact, back in 1991, that Mr. Justice Dunn had 24 acquitted SM? 25 DR. JAMES YOUNG: No. I would -- I wa --
1411 I wasn't aware until sometime later, but I have no idea 2 when. There was no -- I -- I -- there was no mechanism, 3 and still isn't a mechanism, that would necessarily tell 4 the Coroner's Office that a case was completed, 5 particularly something out of town. 6 MR. MARK SANDLER: Did Dr. Smith ever 7 discuss with you an explanation for why this acquittal 8 took place? 9 DR. JAMES YOUNG: Only some period of time 10 afterwards he did, yes. 11 MR. MARK SANDLER: Do you remember what 12 explanation he gave? 13 DR. JAMES YOUNG: His explanation, 14 ultimately that I learned, and I -- I -- I could not tell 15 you accurately when -- exactly when it was, but that it 16 was -- we knew it was going to be complicated case, that - 17 - that it had been a complicated case. 18 I was aware that someone had given evidence 19 that they -- saying there was no such thing as Shaken Baby 20 and that, at the end of the day, the -- the person charged 21 was acquitted and that was the -- at that time, that was 22 the explanation that I was given. 23 A difficult case, but she was acquitted on 24 the -- on the basis -- and they didn't give me a basis, 25 really.
1421 MR. MARK SANDLER: Did either he or 2 someone else ever communicate to you that -- that 3 according to Dr. Smith, Justice Dunn had spoken to him 4 after the case and -- 5 DR. JAMES YOUNG: Yes. 6 MR. MARK SANDLER: -- and expressed 7 reservations? 8 DR. JAMES YOUNG: Yes, and -- and the dot 9 -- not had spoken to him and expressed reserva -- it's -- 10 at one (1) point, Dr. Smith specifically told me, on at 11 least one (1) occasion, that he had run into do -- Justice 12 Dunn at some period of time after that and that Justice 13 had -- had said to him that he had not properly understood 14 Shaken Baby at that point in time and -- and that he 15 understood it better now and the implication -- or the 16 implied message was, If I knew then what I know now, I 17 would have convicted in this case. 18 MR. MARK SANDLER: Now, this is coming 19 from Dr. Smith, I take it. 20 DR. JAMES YOUNG: Yes, yes. 21 MR. MARK SANDLER: All right. Did you 22 regard that explanation as credible at the time? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: All right, did you 25 later come to change your view in that regard?
1431 DR. JAMES YOUNG: I -- I became very 2 suspicious of it and, I guess, this week, in conversations 3 with you, I had my suspicions confirmed. I -- that would 4 be the first that I knew wi -- with certainty that that is 5 not likely Justice Dunn's view of the world. 6 MR. MARK SANDLER: All right, now, I'm 7 going to take you through the -- the judgment, because I'm 8 going to raise with you some of the systemic issues that 9 are thrown up by what Justice Dunn had to say. 10 And you'll see his judgment, which is very 11 lengthy, is summarized commencing at paragraph 208. And 12 you'll see at the top of page 75 that -- that he concludes 13 -- and this is in the quoted portion, second paragraph at 14 the top of the page: 15 "I conclude SM's version's are 16 sufficiently consistent to be credible. 17 It seems so to me and to the medical 18 experts to whom I referred earlier, who 19 are experience..." 20 DR. JAMES YOUNG: Excuse me, I can't 21 find -- 22 COMMISSIONER STEPHEN GOUDGE: Yes, where 23 are we? 24 DR. JAMES YOUNG: I can't find -- 25 MR. MARK SANDLER: I'm sorry, it's page 75
1441 and -- and you should be using the pagination -- 2 DR. JAMES YOUNG: I am. 3 MR. MARK SANDLER: -- right at the top of 4 the page. 5 DR. JAMES YOUNG: I am, but I -- 6 MR. MARK SANDLER: And the second -- 7 second paragraph. 8 MR. BRIAN GOVER: It's page 73 in the hard 9 copy version, I believe. 10 COMMISSIONER STEPHEN GOUDGE: Yes, the 11 Registrar is ahead of you, Mr. Sandler. 12 DR. JAMES YOUNG: Okay. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: All right. Do you have 16 that? 17 COMMISSIONER STEPHEN GOUDGE: It is at 18 paragraph 209. 19 DR. JAMES YOUNG: Yes, I'm fine now. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: Just above 209. It 23 says: 24 "I conclude SM's versions are 25 sufficiently consistent to be credible.
1451 It seems so to me and to the medical 2 experts to whom I referred earlier, who 3 are experienced in matching histories 4 with medical injuries." 5 And then he goes on to say at paragraph 6 209: 7 "SM's explanation is both reasonable and 8 credible. I found she testified in a 9 straightforward fashion about a 10 happening two (2) years ago that's not 11 pleasant to remember. Ms. Fowke 12 performed a skilful cross-examination of 13 SM and -- and so on." 14 And then he deals, commencing at paragraph 15 210, with the various injuries said to have been suffered 16 by -- by Amber. And he makes reference to Dr. Ommaya's 17 evidence at the third line that: 18 "It's a common observation in severe 19 head injuries, severe impact injuries 20 that the surface marks are quite trivial 21 or sometimes nonexistent. Dr. Ommaya 22 also testified that a fall causing brain 23 damage would not necessarily cause a 24 skull fracture. And there are many 25 cases of fatal injuries where there are
1461 no significant marks on the scalp. 2 According to Justice Dunn, Dr. Gilles 3 testified that he would only expect to 4 see swelling at impact sights slightly 5 more than half (1/2) of the time. 6 Justice Dunn, on the following page, 7 accepted the defence expert's opinion 8 that there can be serious diffuse 9 injuries under the skin with little 10 focal injury to the skin. One cannot 11 conclude that just because little or no 12 skin trauma is seen visually, there 13 cannot, therefore, be serious underlying 14 injury." 15 And then in the last line in that 16 paragraph: 17 "In his reasons, Justice Dunn 18 rhetorically asked if I'm right in my 19 understanding of the concept that -- 20 that -- there can be grave underlying 21 damage with no necessary external 22 trauma. Why did Drs. Driver, Smith, and 23 Barker not discuss this and show that 24 they had considered it?" 25 And then skipping over -- and I'm not going
1471 to read all of this to you -- to page 78; 76 of the hard 2 copy. 3 DR. JAMES YOUNG: Sorry, where -- where? 4 Page...? 5 MR. MARK SANDLER: Do you have the PFP 6 numbers at the top? 7 DR. JAMES YOUNG: Yeah. 8 MR. MARK SANDLER: Yeah. 9 DR. JAMES YOUNG: Yeah, that's what I'm 10 using. 11 MR. MARK SANDLER: Page 78. 12 DR. JAMES YOUNG: Paragraph...? 13 MR. MARK SANDLER: Paragraph 215. 14 DR. JAMES YOUNG: Okay. 15 MR. MARK SANDLER: And then in here, he 16 discusses at some length: 17 "The expert from all expert witnesses as 18 to whether short domestic falls can 19 cause serious injuries and death." 20 And you'll see that -- that he analyses the 21 evidence of the Hospital for Sick Children doctors. 22 He analyses the evidence of Dr. Duhaime, 23 Dr. Gilles, Dr. Ommaya. He says at the bottom of the 24 paragraph about Dr. Ommaya. 25 "These doctors are not suggesting that
1481 subdural hematomas from short falls are 2 common. They do say it's within their 3 experience, and so I consider the 4 training and experience of the defence 5 witnesses before I considered what 6 weight to put on the anecdotal 7 references. The biomechanical experts 8 called by the defence were unanimous 9 that the biomechanics of falls and car 10 accidents are similar. I do not believe 11 Dr. Smith accepts that similarity. He 12 also was not aware of the important 13 experimental work done by Dr. Thibault 14 and others regarding the difference as 15 it is manifested in brain injury from 16 translational forces where the head 17 moves in a straight line and angular 18 deceleration where the head turns. He 19 described an article by Dr. Thibault as 20 fascinating. Both Dr. Smith and Driver 21 said they relied on the literature in 22 making their shaking diagnosis. I agree 23 the literature is powerfully stated. 24 The general thrust of it is that small 25 falls do no kill. However, Drs.
1491 Thibault and Ommaya said the problem 2 with that literature, it was not deal 3 with the mechanics of injury. There's 4 no details of the fall. It's not even 5 clear whether the head is struck and 6 where the points of impact are, and no 7 impact velocities are given. A 8 diagnostician should be as aware of the 9 new studies in medical literature as he 10 is of the old ones, and be alert to 11 problems in the articles in reporting 12 the particulars of the injuries." 13 And then skipping down to the last 14 paragraph. 15 DR. JAMES YOUNG: The last paragraph on 16 which page? 17 MR. MARK SANDLER: Same page, page 79. 18 DR. JAMES YOUNG: Yeah, it -- I'm afraid - 19 - 79, my cour -- my numbering and yours is different. 20 MR. ROBERT CENTA: Yeah. Yeah. 21 MR. MARK SANDLER: All right. Well, why 22 don't you just -- if you -- if you look at the screen and 23 -- just while we sort out the logistics. 24 DR. JAMES YOUNG: 79 is not -- yeah, 25 that's the one I'm looking at.
1501 COMMISSIONER STEPHEN GOUDGE: What 2 paragraph -- 3 MR. MARK SANDLER: It starts with 4 "subdural hemorrhages or biomechanically 5 possible." 6 DR. JAMES YOUNG: Yes. 7 MR. ROBERT CENTA: What point are you 8 looking at? 9 MR. MARK SANDLER: Why don't you just 10 follow on the screen for -- for the moment, until -- 11 DR. JAMES YOUNG: If I can read the 12 screen. 13 COMMISSIONER STEPHEN GOUDGE: Can you 14 enlarge it there, Christopher? There you go. 15 DR. JAMES YOUNG: Okay. 16 MR. MARK SANDLER: I think we've solved 17 your -- 18 DR. JAMES YOUNG: Yes, we can see that. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: It say's: 22 "Subdural hematomas are biomechanically 23 possible in short falls. Dr. Thibeault 24 stated there are unique phenomena in the 25 heads of the very young in the way their
1511 brains respond to mechanical forces, and 2 why they have such tremendous swelling. 3 Doctors Keeley and Barker appeared not 4 to understand that concept." 5 And it talks about Dr. Thibault's 6 calculations as to impact velocity, and so on. 7 And then at the following page, he 8 summarizes Dr. Ommaya's evidence; that from the outlook of 9 a neurosurgeon, he believe the coup and contrecoup 10 occurred in this case. And he explains why that is, and 11 then again under that same paragraph: 12 "It was not just Dr. Ommaya who believed 13 a contrecoup occurred. Doctor's 14 Ferguson, Gilles, Leetsma, and Horsham 15 also agreed. Dr. Ommaya was of the view 16 that it is irrelevant to the injuries 17 received, whether Amber had a free fall 18 over five (5) stairs, or whether she hit 19 her jaw part of the way down. The 20 important point is that she hit her head 21 in a certain way." 22 And then skipping down to paragraph 216: 23 "Justice Dunn noted that unlike the 24 Hospital for Sick Children doctors, all 25 of the defence experts agreed that small
1521 household falls can cause serious injury 2 and death. He accepted the defence 3 experts opinions on that point." 4 And then skipping to paragraph 217, he 5 questioned why the doctors from the Hospital for Sick 6 Children did not consult with other experts on the issue 7 of whether short falls could cause serious injury for 8 death -- or death and then described what his findings 9 were in that regard. 10 And then skipping to page 83, which I say 11 with some hesitation, given the disparity, which is 12 paragraph 221 -- sorry, 220: 13 "He identified certain flaws in the 14 Hospital for Sick Children in their 15 approach, and, hence, their opinion 16 about shaking should not be given great 17 weight. I'm not talking now about 18 whether shaking exists, or whether it or 19 some other mechanism killed Amber. I 20 mean that the fact-gathering finding, 21 the communications procedures, the 22 documentation of the medical opinions of 23 the Hospital for Sick Children doctors 24 involved in this case are such that I'm 25 left to question the conclusions they
1531 drew based on the facts as these 2 erstwhile and well-meaning doctors 3 understood them." 4 He then notes sixteen (16) problems in the 5 Hospital for Sick Children Inquiry in this case: 6 "Dr. Smith didn't consider the 7 possibility of causes of death other 8 then shaking." 9 Next page, second: 10 "Dr. Smith's definition of the aspects 11 of Shaken Baby Syndrome continually 12 changed." 13 Third: 14 "Dr. Smith testified that no autopsy was 15 required to confirm the diagnosis of 16 Shaken Baby Syndrome. Justice Dunn held 17 the diagnosis could not be confirmed 18 without an autopsy." 19 Fourth: 20 "Dr. Smith wrote to Dr. Rourke that 21 there was ample clinical evidence to 22 support a diagnosis of shaking, but he 23 didn't know what the evidence was." 24 Fifth -- 25 COMMISSIONER STEPHEN GOUDGE: Are you
1541 going to read all of these, Mr. Sandler? 2 MR. MARK SANDLER: I'm going -- I'm going 3 to read them very quickly. 4 COMMISSIONER STEPHEN GOUDGE: Is there a 5 question here? 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: There is. Just bear 9 with me for a moment, Commissioner. 10 Fifth: 11 "Dr. Driver waited for autopsy results 12 to clarify her opinion as to whether 13 shaking occurred. This was the opposite 14 of what Dr. Smith understood." 15 Sixth: 16 "Dr. Smith didn't give adequate 17 consideration to the possibility if some 18 of the bruises were consistent with a 19 fall." 20 Seventh: 21 "Dr. Smith didn't have enough evidence 22 to conclude that the bruises pre-dated 23 her fall." 24 Eighth: 25 "None of the Hospital for Sick Children
1551 doctors discussed the concept of there 2 being little focal injury with serious 3 brain injury beneath it. None of them 4 showed they'd consider it." 5 Ninth: 6 "Dr. Smith testified that he formed his 7 diagnosis of shaking before he knew the 8 size and weight of Amber." 9 Tenth: 10 "Dr. Smith was not familiar with the 11 experimental work by Dr. Thibault." 12 Eleventh: 13 "Dr. Smith did not record enough detail 14 about the autopsy in an autopsy report." 15 Skipping to page 88: 16 Twelfth: 17 "Dr. Smith described the cause of 18 Amber's death as head injuries in the 19 autopsy report. Dr. Dunn -- sorry -- 20 "Justice Dunn concluded there was a 21 difference between Dr. Smith's opinion 22 that shaking caused death, and what he 23 wrote in his autopsy report. As one (1) 24 neuropathologist said, there's very 25 little in the autopsy itself to indicate
1561 death my shaking." 2 Thirteenth: 3 "Dr. Smith didn't consult with Doctors 4 Drake, Chung and Driver before doing the 5 autopsy. 6 Fourteenth: 7 "Both Dr. Driver and Dr. Barker were 8 under the mistaken impression that Amber 9 suffered a bilateral subdural haematoma, 10 when a bilateral subdural haematoma 11 didn't exist." 12 Fifteenth: 13 "Dr. Smith and Driver knew the 14 importance of obtaining a complete 15 psycho-social history; the history 16 wasn't obtained and they were operating 17 under misapprehensions." 18 Sixteenth: 19 "Dr. Ferguson was critical about Drs. 20 Driver and Smith handled the case and he 21 explained why Dr. Smith as a pathologist 22 should not have commented on the 23 mechanics of injury or offered opinions 24 on the concept of a bolt from the blue, 25 a theory that describes something that's
1571 never happened before and for which 2 there's no warning before it occurs, but 3 could happen any time, or poison hours; 4 a description of late afternoon time 5 when a person could be tired and 6 hungry." 7 And then he goes on in detail to discuss 8 the pathology that existed in the case. 9 Now, as the Commissioner has pointed out, I 10 have read at some length from -- from the reasons, and 11 I've done so for a reason. 12 Do you see the reasons for judgment as 13 raising certain systemic issues? 14 DR. JAMES YOUNG: Of course. 15 MR. MARK SANDLER: What do you see as the 16 reasons raising? 17 DR. JAMES YOUNG: Well, I'd have to go 18 through the analysis of all sixteen (16) of them. I mean 19 they -- they raise numerous issues around both Dr. Smith 20 and the SCAN Team and assumptions that were made and 21 quality of work that was done. 22 I mean I -- you know, it would take a long 23 analysis, but, you know, I completely agree with you; they 24 raise large number of issues. 25 MR. MARK SANDLER: All right. So -- so
1581 for example you can see that one (1) of the issues raised 2 by Justice Dunn has to do with the objectivity of the 3 Hospital for Sick Children doctors and Dr. Smith, right? 4 DR. JAMES YOUNG: Yes, yes. 5 MR. MARK SANDLER: And that would be of a 6 concern to you as a Chief Coroner if it was known to you? 7 DR. JAMES YOUNG: Absolutely. 8 MR. MARK SANDLER: You can see that 9 Justice Dunn raised issues about the quality of the 10 pathology death investigation that was conducted in this 11 case from autopsy on. 12 DR. JAMES YOUNG: Yes. 13 MR. MARK SANDLER: And again, as a Chief 14 Coroner, that would raise a systemic concern with you? 15 DR. JAMES YOUNG: All -- all of these -- 16 all sixteen (16) of them raise issues that I -- I agree 17 would require a look and a -- and an analysis. 18 MR. MARK SANDLER: All right. And, 19 similarly, the two (2) other points that I raise with you 20 that Justice Dunn was concerned about whether the Hospital 21 for Sick Children and Dr. Smith were conversant with the 22 latest literature, and how that might have effected the 23 quality of their opinion. 24 And again, that would raise a concern with 25 you as a Chief Coroner?
1591 DR. JAMES YOUNG: Certainly. 2 MR. MARK SANDLER: And, finally, Justice 3 Dunn raised the concern about whether the theory of when 4 Shaken Baby Syndrome can be diagnosed as the mode of 5 death, that would raise a very significant concern for you 6 as a Chief Coroner, would it not? 7 DR. JAMES YOUNG: Yes. 8 MR. MARK SANDLER: And what steps would 9 you have taken as Chief Coroner had you known of these 10 reasons for judgment? 11 DR. JAMES YOUNG: Well, I'm using the 12 retro scope here because I didn't, so I -- I want to 13 qualify what I say because I'm -- the first day -- day 14 I've ever been asked this question, so I -- you know, I 15 have the benefit of a lot more knowledge. 16 But I assume what I would do if I got this 17 report is I would have the case very thoroughly reviewed 18 by, probably, an outside expert in pediatric pathology -- 19 forensic pathology; that would be my normal approach to a 20 problem like this. 21 I've got a Judge's report, I've got a -- 22 I've -- I would also probably want the tra -- the 23 transcript, given the complexity of this, of a -- of a 24 good number of the witnesses, and what they said and 25 propride -- provide that as part of the -- part of the
1601 review. So first you've got to get the transcript, and 2 then I would have a very thorough review because I mean 3 now we have different points of view and a Judge raising 4 issues. 5 I can't accept all of those as necessarily 6 being valid until I've substantiated them with someone 7 else who's an expert in the area. But I certainly would - 8 - it raises all the red flags. 9 MR. MARK SANDLER: What issue does it 10 raise for you, systemically, that -- that a number of 11 experts, and -- and we've heard that experts from around 12 the world testified at this trial, including Dr. Rourke, 13 Dr. Duhaime, Dr. Thibault, Dr. Gilles, Dr. Leetsma, Dr. 14 Horsham from -- from Canada -- 15 DR. JAMES YOUNG: Mm-hm. 16 MR. MARK SANDLER: -- and -- and none of 17 that came to your attention as the Chief Coroner? 18 DR. JAMES YOUNG: Well, this whole 19 judgment didn't come to my attention. I mean I -- I -- 20 I'm really -- I guess I -- you know, a judgment of this 21 nature, unfortunately in medicine, you know, the -- the 22 standards of reporting -- self-reporting -- are different 23 than they are in -- in law and in regards to medical 24 errors or other things where people aren't required to 25 report the same way.
1611 This is a very critical report that one 2 would hope that I would hear this report exists, in the 3 best of all worlds, from Dr. Smith himself. Perhaps from 4 some of the other people from Sick Kids if they were aware 5 of it and they were named in it; or from the Crown 6 attorney or from the defence attorney. 7 I wouldn't expect -- I'd be happy to 8 receive it from the judge himself, but I -- there are lots 9 of mechanisms that it could come to me through and, you 10 know, I would -- I would certainly have a serious interest 11 in it. 12 MR. MARK SANDLER: All right. 13 COMMISSIONER STEPHEN GOUDGE: Can I just 14 follow up in relation to a set of answers you gave some 15 time ago, Dr. Young. 16 I got the sense that, obviously, the 17 Coroner's Office is a very busy office and that after the 18 coroner's report is concluded, having retained the outside 19 pathologist to do the post-mortem report -- perhaps a 20 little while after that -- the coroner's office, 21 effectively, no longer tracks the outcome of that 22 particular case, albeit it may be a criminally suspicious 23 case that may be going to trial? 24 DR. JAMES YOUNG: That's right. The -- 25 the work at that point really becomes between the -- the
1621 people who are involved in the case and the Crown 2 attorney. 3 COMMISSIONER STEPHEN GOUDGE: You see a 4 weakness there, I mean? 5 DR. JAMES YOUNG: Yes. In -- in 6 retrospect absolutely -- 7 COMMISSIONER STEPHEN GOUDGE: Because a 8 number of the concerns we have heard about have involved 9 timing issues that arise after the sign-off of the coroner 10 on the coroner's report. 11 DR. JAMES YOUNG: Yeah. 12 COMMISSIONER STEPHEN GOUDGE: The evidence 13 issue, the finding issue that Mr. Sandler has just taken 14 you to is after -- 15 DR. JAMES YOUNG: Yeah. 16 COMMISSIONER STEPHEN GOUDGE: -- in 17 effect, when the Chief Coroner closes the books on -- 18 DR. JAMES YOUNG: Yeah. 19 COMMISSIONER STEPHEN GOUDGE: -- this 20 file? 21 DR. JAMES YOUNG: Yes. Yeah, there's no 22 question that this case and others illustrate there has to 23 be a way a tracking that and tracking when the trial is 24 and -- and how satisfactory the evidence is. 25 The issue or the problem, from a practical
1631 point of view, is that the Criminal Justice System moves 2 along at its own pace, which at times is rather glacial, 3 and trials get started, trials get stopped, trials get 4 postponed. 5 Our own experience with David -- Dr. 6 Chiasson, for example, is, I'll say, Where is he, he's off 7 at a trial, and he comes back three (3) days later, and 8 he's been sitting in the corridor and he still hasn't been 9 heard. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 DR. JAMES YOUNG: Tracking cases all over 12 the province that are going on at all different times is - 13 - is a -- really a monumental feat. It may be necessary 14 to do that, but it -- the -- the problem -- the inherent 15 problem in -- in it is that it -- it goes on in a parallel 16 fashion; it goes at its own -- 17 COMMISSIONER STEPHEN GOUDGE: Yes, maybe-- 18 DR. JAMES YOUNG: -- pace. 19 COMMISSIONER STEPHEN GOUDGE: -- as a 20 practical matter. 21 DR. JAMES YOUNG: As a practical matter, 22 it's just extremely difficult. 23 COMMISSIONER STEPHEN GOUDGE: But is it -- 24 DR. JAMES YOUNG: Even with our own people 25 that are full-time people in the office, you can't keep
1641 track of it. 2 COMMISSIONER STEPHEN GOUDGE: But is it a 3 sort of fair characterization to say that the Chief 4 Coroner's office has a sort of ownership sense of the 5 pathologist's report up to the point of signing off on the 6 coroner's report, but after that, no longer an ownership 7 sense of the pathology that the Coroner's Office has 8 generated? 9 DR. JAMES YOUNG: I think we would -- we 10 felt an increasing need before we signed off, for example, 11 with the reviews that Dr. Chiasson did to make sure that 12 what was being sent was -- was adequate. 13 We also, increasingly over the years, asked 14 for case conferences in complicated cases and tried to 15 work with Crown attorneys to -- to get the necessary 16 experts in place early in the case not late in the case. 17 COMMISSIONER STEPHEN GOUDGE: And all that 18 would follow the coroner's report. 19 DR. JAMES YOUNG: But -- but at -- but 20 you're quite correct. At some point, if we're satisfied 21 that the Crowns seem happy and things are moving along, 22 we're not paying attention, at that particular point. 23 But -- 24 COMMISSIONER STEPHEN GOUDGE: You are 25 moving on to tomorrow's problems?
1651 DR. JAMES YOUNG: We're moving on to 2 tomorrow's problems. And -- so that when once we -- once 3 we -- we did put more things in place to make sure that 4 what was going out was okay and we certainly fought to 5 have more case conferences. 6 But -- but later when we're discussing 7 Tyrell, for example, it's a case where one (1) of my major 8 annoyances is that the -- the expert opinions that should 9 have been sought should have been sought much sooner, 10 right near the beginning of the case. 11 And that was the kind of thing we would do, 12 but once those are in place, if no one's coming to us and 13 no one's asking us questions, we're not -- we're not 14 paying a lot of attention to that, at that point -- 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. JAMES YOUNG: -- because we know -- 17 COMMISSIONER STEPHEN GOUDGE: Sort of step 18 back and the relationship is then between the pathologist 19 that you originated and the prosecution? 20 DR. JAMES YOUNG: Exactly -- exactly. And 21 they know where -- 22 COMMISSIONER STEPHEN GOUDGE: And so -- 23 DR. JAMES YOUNG: -- to find us if they 24 need more experts. Following the Bernardo hearings, 25 Justice Campbell talked about case conferences and talked
1661 about trying to -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. JAMES YOUNG: -- to center the -- the 4 obtaining of experts through the Office of the Chief 5 Coroner. And certainly the Crowns will phone and say we 6 need such and such an expert. We'll try to find someone 7 credible, but once we find that expert for them, we turn 8 it back to them and if they have a problem, they'll come 9 and ask us again. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 Sorry, for that lengthy interruption, Mr. Sandler. 12 MR. MARK SANDLER: No, that's fine. 13 COMMISSIONER STEPHEN GOUDGE: I wonder if 14 we should take the afternoon break now for fifteen (15) 15 minutes? 16 MR. MARK SANDLER: That's fine. 17 COMMISSIONER STEPHEN GOUDGE: Arise now 18 for fifteen (15) minutes. 19 20 --- Upon recessing at 3:25 p.m. 21 --- Upon resuming at 3:41 p.m. 22 23 THE REGISTRAR: All rise. Please be 24 seated. 25 COMMISSIONER STEPHEN GOUDGE: Mr.
1671 Sandler...? 2 3 CONTINUED BY MR. MARK SANDLER: 4 MR. MARK SANDLER: Thank you, 5 Commissioner. Dr. Young, before the break we were 6 discussing the systemic flaw that's been identified so far 7 in -- in your testimony arising out of the disconnect 8 between the judgment given in -- in this case and the 9 failure to have that communicated, in some systematic way, 10 to the Coroner's Office. 11 And -- and you agree that that's a flaw 12 that has to be addressed in some way? 13 DR. JAMES YOUNG: Absolutely. 14 MR. MARK SANDLER: The -- the other issue 15 that comes out of that disconnect is this. A medical 16 certificate of death is prepared by the coroner in -- in 17 cases such as this, am I right? 18 DR. JAMES YOUNG: Yes. 19 MR. MARK SANDLER: And -- and wouldn't 20 there be some necessity in -- in some cases for the 21 coroner to re-evaluate the medical certificate of death, 22 or the coroner's investigative statement as a result of 23 what has been revealed in the trial? 24 DR. JAMES YOUNG: There -- yes -- yes, 25 there could be, and there is -- I mean, if -- if the
1681 Office of the Chief Coroner becomes aware that -- that a 2 case has shifted, we'll send the material back to the 3 coroner and ask for a supplementary report and an updating 4 and a change. 5 But in terms of what might come out of a 6 trial, I suppose, on occasion, yes, you're right, it 7 could, such as this, this is an example, where the -- 8 where the certificate may need to be amended. You're 9 quite correct. 10 And we would do that if it came to our 11 attention, or -- or we were aware of it, but without a 12 mechanism to report something like this, we -- we might 13 not catch that. You're -- you're correct. 14 MR. MARK SANDLER: And -- and in fair I'm 15 -- I'm asking about that systemically, as opposed to in 16 this case, because the idiosyncratic nature of this case 17 was such that Dr. Ouchterlony originally reflect accident 18 in the medical certificate of death. 19 So -- so ultimately that may not have been 20 a concern here. 21 DR. JAMES YOUNG: Mm-hm. 22 MR. MARK SANDLER: But -- 23 DR. JAMES YOUNG: I thought of that. 24 MR. MARK SANDLER: -- but you can see that 25 in some cases it would be a very legitimate concern?
1691 DR. JAMES YOUNG: It -- it wouldn't be -- 2 happen very often because, you know, the question -- the 3 issue of whether someone's convicted may not be the same 4 issue as whether or not the death is still -- may be -- 5 may not be ruled accidental. 6 MR. MARK SANDLER: And that -- and that 7 you're reflecting the fact that the burden of proof in a 8 criminal case may be such that -- that the case hasn't 9 been proven to the requisite degree of proof, but the 10 coroner is still satisfied, on some different standard, 11 that the medical certificate of death should not be 12 altered. 13 That's what you're reflecting? 14 DR. JAMES YOUNG: Yeah, the -- the death 15 still may reflect the death of -- of a human at the hands 16 of another human, and the issue may be, Is there -- can 17 you prove criminal culpability, or is it that person or is 18 it someone else? It sill -- it still leaves it as a 19 homicide so that it -- I doubt it would change very often, 20 but you're quite correct. There is a -- there is a 21 loophole. 22 MR. MARK SANDLER: All right. And if we 23 could go to PFP000118, and you'll have to look at this on 24 the -- on the screen. This is actually the -- the reasons 25 for judgment by Justice Dunn; the first page.
1701 And we actually see -- and the judgment was 2 released in July of 1991, and we see a stamp at the top: 3 "August 9th, 1991, Dr. Robin Williams 4 with the compliments of Regional Senior 5 Judge, Judge Campbell." 6 And do you know who Dr. Robin Williams is? 7 DR. JAMES YOUNG: Yes. She's currently 8 the Medical Officer of Health for Niagara Region. She is 9 a ped -- she's a pediatric physician in the Niagara 10 region. Prior to that -- and she has done a -- she sits 11 on the Paediatric Review Committee and has done quite a 12 lot of work with our office. 13 MR. MARK SANDLER: Do -- do you know 14 whether she was on the Paediatric Review Committee back in 15 1991? 16 DR. JAMES YOUNG: I think so, but I really 17 wouldn't know with certainty. I -- I'm not positive. 18 MR. MARK SANDLER: And again, if -- if -- 19 as would appear on the face of this, the Regional Senior 20 Judge for that area had sent a copy of these reasons to 21 Dr. Williams. There would be another disconnect in this 22 matter not making its way to the Chief Coroner's Office. 23 DR. JAMES YOUNG: Well, my suspicion, you 24 know, I know Dr. Williams very well and I -- I have great 25 admiration for her, and first of all, I think probably the
1711 Chief Regional Judge knows her and -- and would send this 2 because of knowing of her interest in the area. 3 Knowing her and I'm -- this is a 4 supposition, but my guess would be that she would have 5 assumed that we had a -- she would -- you know that would 6 be her assumption is, He's already got it, why would I 7 send it to him and -- because she's a -- that would be 8 her. 9 MR. MARK SANDLER: All right. Now, you've 10 indicated to the Commissioner that you were unaware of 11 these reasons for judgment and did not read them back in 12 1991, and indeed, had not read them until this Inquiry 13 commenced, is that right? 14 DR. JAMES YOUNG: That's right; sadly, but 15 correct. 16 MR. MARK SANDLER: Apart from reading the 17 actual reasons for judgment themselves, did you ever 18 become aware of two (2) facts; first of all, that -- that 19 a number of expert witnesses had testified for the defence 20 in this Timmons' case? 21 DR. JAMES YOUNG: No. 22 MR. MARK SANDLER: Was that fact ever -- 23 DR. JAMES YOUNG: No. 24 MR. MARK SANDLER: -- come to be known by 25 you?
1721 DR. JAMES YOUNG: No. 2 MR. MARK SANDLER: And did the fact ever 3 be -- ever come to be known by you before this Inquiry 4 apart from the -- the acquittal that Justice Dunn had been 5 very sharply critical of the Hospital for Sick Children 6 and the methodology that was used in that case? 7 DR. JAMES YOUNG: No. No, the opposite. 8 I mean, as I said, I had the -- the reassurance from Dr. 9 Smith, in fact, that Justice Dunn had changed his mind, 10 but -- but never heard of criticism of either Hospital for 11 Sick Children or Dr. Smith. 12 MR. MARK SANDLER: All right. I -- I 13 think in fairness, I -- I -- I have to show you something 14 and ask you to comment on it -- 15 DR. JAMES YOUNG: Sure. 16 MR. MARK SANDLER: -- if you would. I'm 17 going to take you, and this is out of chronological 18 sequence, Commissioner, but I think in fairness, I -- I 19 should show it to Dr. Young for his comment. 20 If I can take you to Volume VIII of the 21 materials that you have, Tab 56, and this is PFP008369. 22 MR. ROBERT CENTA: 359. 23 MR. MARK SANDLER: 359? 24 DR. JAMES YOUNG: This is the Coroner's 25 counsel complaint?
1731 MR. MARK SANDLER: This is the Coroner's 2 counsel complaint. 3 COMMISSIONER STEPHEN GOUDGE: Sorry, what 4 tab number? 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: And this is Tab 56 of 8 Volume VIII. And to be clear, this was a complaint that 9 was launched to the Coroner's counsel -- and we'll come 10 back to what all of this means a little bit later in the 11 chronology -- 12 DR. JAMES YOUNG: Yeah. 13 MR. MARK SANDLER: -- against Dr. Smith in 14 the Nicholas matter, which we'll be talking about 15 tomorrow, and it's dated February the 17th of 1999. And 16 did you receive this complaint from the Gagnon family in 17 connection with this -- that matter? 18 DR. JAMES YOUNG: Yes, I did. 19 MR. MARK SANDLER: And if you'd look at 20 page 16 of the complaint, and this is Mr. Gagnon, the -- 21 the father of the mother who had been the subject of 22 proceedings in Family Court, and it says, under Precedent, 23 "Crown versus SM." 24 DR. JAMES YOUNG: Mm-hm. 25 MR. MARK SANDLER: And I'm going to do
1741 some self-editing as I -- as I read -- 2 DR. JAMES YOUNG: Mm-hm. 3 MR. MARK SANDLER: -- to protect the 4 identity of SM. 5 "If nothing else, Dr. Smith is 6 consistent. The negligence, 7 recklessness, and arrogance so evident 8 in Nicholas' case are a mirror image of 9 the SM case in Timmons. This case was 10 heard by Judge Dunn in 1989/'90. I will 11 later quote from Judge Dunn's reasons 12 for judgment dated May 24, 1991." 13 And then he sets out what the SM case was 14 about; that she was charged with manslaughter; she was 15 acquitted after thirty (30) days of testimony. 16 "Based on Dr. Smith's opinion, 'S' was 17 accused of shaking the baby girl and 18 thereby causing her death. The 19 following quotes from Judge Dunn's 20 judgment reflect many of the 21 deficiencies in Dr. Smith's testimony 22 and his investigative procedures." 23 And then what we have in the following 24 three (3) pages are some fairly lengthy quotes from the 25 findings that were made by Justice Dunn in the SM case.
1751 And including some of the very same criticisms that I read 2 earlier out -- 3 DR. JAMES YOUNG: Mm-hm. 4 MR. MARK SANDLER: -- to you, at some 5 length, -- 6 DR. JAMES YOUNG: Mm-hm. 7 MR. MARK SANDLER: -- from the overview 8 report. Did you not see this back then? 9 DR. JAMES YOUNG: I saw the -- I saw the 10 report from Mr. Gagnon, and I believe I corresponded back 11 to him saying that I had read the complaint and considered 12 the complaint. I have absolutely no memory of having read 13 this part, and I suspect strongly that the reason is that 14 I probably didn't read that part. 15 And the reason that I wouldn't read that 16 part, I -- I believe, is that a complaint about a coroner 17 is a complaint about a particular case. It's not a 18 complaint that you can start quoting all kinds of other 19 cases. We've -- we've had many, many experiences. 20 Somewhere families from one (1) inquest 21 want to -- standing in the next inquest -- it sounds like 22 it's similar. And -- and all you do is -- is mess facts 23 together that -- from one (1) case to another case that 24 are very often misquoted. 25 So I -- I regret, I regret deeply, that I
1761 didn't read this. It didn't register and it didn't signal 2 something in me. But I don't think I read it because I 3 believe that when I was going through -- often people do 4 this when they submit letters to the -- to the Chief 5 Coroner, they mix a whole bunch of things in. 6 And that's not the way they can be 7 adjudicated, and that's not the way I consider them. So I 8 very likely stopped reading at that point 'cause I have 9 absolutely no recollection, and I was -- I think it would 10 be fair to say -- dumbfounded in your office when you 11 showed me the judgment and referred to it the first time. 12 So it -- clearly -- on a number of 13 occasions I had opportunities to find out about it. None 14 of them struck with me, and I'm -- I regret it deeply, but 15 I can't go back and change history. 16 MR. MARK SANDLER: All right. So just to 17 be clear there -- I would suggest to you that there was 18 nothing more that Mr. Gagnon could possibly have done to 19 bring to the attention of the Chief Coroner of this 20 Province the concerns that had been raised by Justice Dunn 21 and by himself about the parallels between the SM case and 22 the Nicholas case, isn't that fair? 23 DR. JAMES YOUNG: He's the only one that 24 did it, but he is the one that did it, and I missed it. 25 As I say, I think for a reason, but I -- and I'm not --
1771 I'm not saying, you know, in the -- in the clear light of 2 day what he says is -- is astoundingly accurate and -- but 3 I -- well, I've explained why I wouldn't have done it. 4 And I regret I didn't, but it's -- but I 5 didn't hear from anyone else either. 6 MR. MARK SANDLER: All right. And then 7 just -- just to go to page 20 of the -- of the document; 8 following the outline in some detail about what Justice 9 Dunn has had to say about Dr. Smith and the SM came -- 10 case. Mr. Gagnon goes on to conclude what he has to say 11 about the Nicholas case, and would you have read the 12 conclusion? 13 DR. JAMES YOUNG: I -- I don't know. I -- 14 I can't tell you. I would have no idea. 15 MR. MARK SANDLER: All right. And if 16 you'd go with me to Volume VIII, Tab 55, which is 17 PFP007885. 18 DR. JAMES YOUNG: Just -- this is Volume 19 VIII? 20 DR. JAMES YOUNG: Same volume 21 MR. MARK SANDLER: Same volume. 22 COMMISSIONER STEPHEN GOUDGE: Okay. What 23 tab? 24 25 CONTINUED BY MR. MARK SANDLER:
1781 MR. MARK SANDLER: Tab 55. 2 DR. JAMES YOUNG: Okay. 3 MR. MARK SANDLER: And this is PFP007885. 4 DR. JAMES YOUNG: Yeah. 5 MR. MARK SANDLER: And this is, I take it, 6 your letter to Mr. Gagnon dated May the 6th of 1999? 7 DR. JAMES YOUNG: Yeah. 8 MR. MARK SANDLER: And again, just in -- 9 in fairness to you, to invite your comment, you commence 10 the letter by saying: 11 "This is in regard to your letter and 12 the brief that you submitted on February 13 17, 1999 complaining of the actions of 14 Dr. Charles Smith. As you know, I had 15 to wait until the final disposition of 16 the case in the Courts before reviewing 17 your issues. I have read your brief in 18 detail and considered it very 19 carefully." 20 Does that effect your recollection in any 21 respect? 22 DR. JAMES YOUNG: No. Well, what it says 23 to me is I -- I probably did read the part that I thought 24 was pertinent and relevant to the task that I had. I 25 didn't explain to him that I can't consider other cases
1791 and lump them in with his case, but I -- I believe I did - 2 - you know when I reread his complaint the other day, 3 certainly the beginning part of it was familiar to me, so 4 I -- you know I think that's an accurate statement of -- 5 of what I did. 6 MR. MARK SANDLER: Okay. And -- and 7 again, just addressing this issue out of chronological 8 order -- just while we're on it -- if you could go to 9 Volume IV, Tab 11. 10 DR. JAMES YOUNG: Yeah. 11 MR. MARK SANDLER: And this is a letter, 12 PFP115843, that was addressed by you to the producers of 13 the Fifth Estate in October of 1999. 14 DR. JAMES YOUNG: Yes. 15 MR. MARK SANDLER: And I take it this was 16 a request for an interview with you concerning the 17 investigation of the death of -- of Nicholas by the Fifth 18 Estate. 19 DR. JAMES YOUNG: Yes. 20 MR. MARK SANDLER: And -- and you 21 indicated that -- that -- in essence, that you weren't 22 going to be interviewed, given some concerns about freedom 23 of information and protection of Privacy Act, but you did 24 provide some information to the Fifth Estate, as reflected 25 in the letter, and you also indicated that you'd have no
1801 objection if the family chose to share written 2 correspondence from your office to them, am I right? 3 DR. JAMES YOUNG: Yes. 4 MR. MARK SANDLER: And we actually see a 5 transcript of the Fifth Estate production, which was aired 6 for the first time in November of 1999 at Tab 13 of the 7 same volume. 8 It's actually attached to a statement of 9 claim that Dr. Smith had launched against the CBC and -- 10 and others -- 140888, and do you have that? 11 DR. JAMES YOUNG: Yes. 12 MR. MARK SANDLER: And if I can simply 13 take you to PFP140888 at page -- excuse me for a moment -- 14 at page 25. 15 DR. JAMES YOUNG: Okay. 16 MR. MARK SANDLER: And up until this point 17 in time I can tell you, and again, we'll return to it in 18 chronological order tomorrow, but I can tell you that the 19 Fifth Estate transcript that's reproduced here deals first 20 with the Nicholas case, then at page 25, Victor Malarek 21 says: 22 "It would be comforting to think that 23 Lianne's ordeal was an isolated case, 24 but it's not. Another occurred in the 25 early 90's in the northern Ontario
1811 lumber town of Timmons. In this case 2 another report by Dr. Charles Smith led 3 to a twelve (12) year old girl being 4 charged with manslaughter following the 5 death of a sixteen (16) month old 6 toddler she was babysitting. The doctor 7 alleged a case of baby shaking. The 8 babysitter swore the child struck its 9 head when it fell down a small flight of 10 stairs." 11 Now just stopping there for a moment. So 12 this would appear to be referable to the SM case that 13 we've been talking about, right? 14 DR. JAMES YOUNG: Baby Amber, that's 15 right. 16 MR. MARK SANDLER: All right, and then if 17 you skip down to -- and -- and perhaps while we're here, I 18 note in the middle of that same page it says: 19 "From the outset the case was embroiled 20 in controversy. Dr. Smith allowed the 21 body to be buried without an autopsy, 22 even though he admitted he already had 23 suspicions that the death may not have 24 been accidental." 25 And just stopping thar -- there, that's
1821 inaccurate for the reasons we've earlier discussed -- 2 DR. JAMES YOUNG: Exactly. 3 MR. MARK SANDLER: -- it was Dr. 4 Ouchterlony that had brought about that -- that -- 5 DR. JAMES YOUNG: Exactly. 6 MR. MARK SANDLER: -- chain of events, 7 right? 8 DR. JAMES YOUNG: Exactly. 9 MR. MARK SANDLER: Okay. And then it goes 10 on to say: 11 "Dr. Floyd Gilles, Head of Pediatric 12 Neuropathology at the Children's 13 Hospital in Los Angeles testified at the 14 Timmins' trial. 15 DR. GILLES: It's the kind of autopsy 16 that I would report, that I would not 17 allow out of my training program, which 18 I had for many years in Boston. It was 19 too lacking in specific details. 20 MALAREK: According to Dr. Gilles, 21 standard autopsy procedures were 22 neglected. 23 GILLES: For instance, one strips all 24 the dura from inside the skull and looks 25 for cracks. As far as I could tell from
1831 the pictures obtained at the time of the 2 autopsy, the dura had not been stripped, 3 so he could not adequately look for 4 fractures. 5 MALAREK: Dr. Smith said that even if 6 he'd found a linear fracture he still 7 would have concluded death by shaking. 8 GILLES: Well, I think that's an error. 9 I think that was wrong. 10 VICTOR MALAREK: Dr. Gilles wasn't the 11 only one who thought Dr. Smith got it 12 wrong. During the trial, numerous 13 medical experts appeared on behalf of 14 the defence testifying that this wasn't 15 a baby shaking death. And in his 16 acquittal, the judge was harsh on Dr. 17 Smith; he criticized him for not 18 seriously considering possibilities 19 other than shaking. He was concerned 20 that Dr. Smith's assumptions might 21 colour his approach to the facts. And 22 he concluded for these reasons for these 23 reasons I'm not inclined to put much 24 weight on Dr. Smith's opinion. 25 And then Dr. Gilles is asked:
1841 "How serious are the above criticisms? 2 These are very serious, they're very 3 serious because someone's been charged 4 here and faces a serious outcome and one 5 has to be very careful about making 6 these statements without adequate 7 evidence. But according to Deputy 8 Coroner, James Cairns, the judge simply 9 go it wrong. 10 CAIRNS: With due respect, I feel that 11 the medical evidence was confusing and 12 that the judge may not have clearly 13 understood all the evidence that was 14 being given." 15 Now, that Fifth Estate to broadcast appears 16 to raise squarely not only the judge's criticisms of the 17 work that was performed by Dr. Smith in the SM case, but 18 reflects the fact that numerous medical experts appeared 19 on behalf of the de -- defence contradicting what Dr. 20 Smith had to say, am I right? 21 DR. JAMES YOUNG: Yes. 22 MR. MARK SANDLER: Were you aware of the 23 Fifth Estate broadcast? 24 DR. JAMES YOUNG: After the fact -- well, 25 I was obviously aware beforehand they were working on the
1851 story because they sent me a letter. 2 MR. MARK SANDLER: Right. 3 DR. JAMES YOUNG: But I was aware after 4 the broadcast that it had taken place, yes. 5 MR. MARK SANDLER: Were -- were you aware 6 of what the content was? 7 DR. JAMES YOUNG: No. Just that it had to 8 do with Charles Smith and the only comment I received was, 9 there was nothing new in it. 10 MR. MARK SANDLER: Well, a couple of 11 issues arise out of that. Again, we've seen that Justice 12 Dunn's judgment came out. You've indicated that -- that 13 it didn't come to your -- the content didn't come to your 14 attention. We see that Mr. Gagnon filed a complaint that 15 made extensive reference to it, and -- and you've said 16 that you -- you didn't note that when it came in. 17 We then have the Fifth Estate that produces 18 a broadcast on Dr. Smith, including a significant portion 19 that's devoted to the SM case. 20 Systemically, should it not have been of 21 interest to the Chief Coroner as to what the content of 22 broadcast about Dr. Smith was and whether there was merit 23 in the allegations that might have been made in the 24 broadcast? 25 DR. JAMES YOUNG: Well, I believe I was
1861 away when it was broadcast. I asked the question, is 2 there -- you know, was there anything significant? One 3 (1) of the barometers of testing whether there was 4 anything particularly new or -- or of import -- would be 5 whether or not, in fact, other media outlets picked it up 6 and started broadcasting it. 7 Was I being asked about it by people, 8 friends, acquaintances, by other people? And -- and 9 essentially what I -- what happened was dead silence. I 10 heard nothing from anyone about it. No one raised the 11 issue with me. It -- essentially -- I completely agree 12 with you. There was useful information. 13 Do I wish I had seen it? Do I regret I 14 didn't see it? Of course, but I didn't. At the time, it 15 didn't raise -- I didn't go out and seek it out because I 16 didn't have any reason. I didn't hear any reason from 17 anyone that it was particularly important piece of 18 journalism that warranted -- warranted my attention at the 19 -- at that point. 20 MR. MARK SANDLER: All right. And then at 21 page 27 of -- of the broadcast, the Deputy Chief Coroner 22 is quoted as saying: 23 "I feel that the medical evidence was 24 confusing. The judge may not have 25 clearly understood all the evidence that
1871 was being given." 2 Again, do you see it as a systemic failing 3 within your office that -- that Dr. Cairns was apparently 4 commenting on -- on the -- on the rationale for -- for the 5 acquittal in the case, without the Chief Coroner's or 6 Deputy Chief Coroner's Office even having reviewed what 7 the judge had to say about the case? 8 DR. JAMES YOUNG: Well, I mean -- the way 9 these interviews are done, you know, you sit down and you 10 do an interview for an hour, and ten (10) seconds of the 11 interview appears. 12 You don't know the questions in advance, 13 and then 95 percent of what you say ends up on the editing 14 table. So, you know, Dr. Cairns has no control over what 15 he's going to be asked. 16 He answers the question obviously at the 17 time. You either do that or you be like President 18 Sarkozy, and you walk out on the interview. But 19 effectively, I mean, I take that answer -- actually when I 20 read it, what I would think he's referring to is -- is -- 21 I believe he was aware as I was, of Dr. Smith telling us 22 that the judge had changed his mind. 23 And I -- if I -- when I read this, that's 24 what I wonder, whether he's, in fact, expressing 25 confidence because he's been told by Dr. Smith that --
1881 that the judge has -- has -- understands it, and that 2 everything was okay. 3 MR. MARK SANDLER: Okay. And then if you 4 go to Tab 12 of the same binder, because it's perhaps 5 convenient to deal with -- with this issue in it's 6 entirety right now. This is PFP007896, and this appears 7 to be an issue note that was prepared November the 12th, 8 1999 which is two (2) days after the -- the broadcast -- 9 DR. JAMES YOUNG: Mm-hm. 10 MR. MARK SANDLER: -- concerning the 11 coroner's investigation into the death of -- of Nicholas. 12 And we see at page 2 of the issue note, that the staff 13 contact person for -- for this is James Young, Chief 14 Coroner for Ontario. 15 Could you explain to the Commissioner what 16 an issue note is, and what it means that you're the 17 contact person that's listed at page 2? 18 DR. JAMES YOUNG: Sure. An issue note, 19 whenever something happens that might end up with issues 20 or questions, either in scrums for the Minister, or issues 21 in the House, requires issue notes, and they're -- they're 22 plentiful. 23 I mean -- that -- an industry, in and by 24 itself, writing issue notes in government, and they 25 generally take this form, they have -- they're brief,
1891 they're succinct, and they essentially give the Minister 2 the speaking points so that the Minister responds 3 appropriately. 4 All of the issue notes in -- in the 5 division, ultimately, would go through my office. Not 6 with me seeing them, because I would only see ones on 7 occasion when there was a specific issue, a reason why I 8 needed to see it. 9 Generally most of the issue notes from the 10 Office of the Chief Coroner would have my name on it. If 11 I was on holidays or something, it would have someone 12 else's name. 13 But if someone was looking for someone and 14 I wasn't there, they would talk to whoever. But -- but I 15 -- I can't tell you whether my name is on there because I 16 was around that day or wasn't around that day, or whether 17 it was there just as a matter of form. 18 I don't know. But that would -- this was - 19 - this would be a -- quite a classic normal issue note. 20 MR. MARK SANDLER: All right. And then 21 just again on this subject. If we can just exhaust before 22 we break for the day, the SM component of this. And if 23 you go to Tab 14 in the -- in the same binder. 24 DR. JAMES YOUNG: Yep. 25 MR. MARK SANDLER: And this is a -- an
1901 article from McLean's Magazine that was published in May 2 of 2001. And it's PFP125639, and it's headed up: 3 "How the faulty findings of an eminent 4 pathologist lead to erroneous murder 5 charges and ruined lives." 6 And it's called, "Dead Wrong". And did you 7 read this article back when it was released in May of 8 2001? 9 DR. JAMES YOUNG: I read at least part of 10 the article. 11 MR. MARK SANDLER: Why do you say that you 12 read, at least, part of the article? 13 DR. JAMES YOUNG: Because in a couple of 14 minutes you're going to ask me about the -- the end part 15 of it, which I have no recollection of whatsoever, so I -- 16 I can't say I read the article because I don't know if I 17 read the article. 18 MR. MARK SANDLER: All right, well, 19 perhaps we should -- we should just look at the portion 20 that -- that you're referring to because the -- the casual 21 listener may not understand what your reference is. So if 22 you look at page 6 of the article, there's an entire page 23 of -- of the article under "Special Reports" saying the 24 babysitter didn't do it. 25 And -- and I think it's fair to say that --
1911 that the entire article -- that entire page addresses the 2 -- the content of the SM case, including the fact that 3 nine (9) respected neurosurgeons and pediatric 4 neuropathologists travelled to test -- to Timmins to 5 testify in the case and -- and what Justice Dunn had to 6 say about Dr. Smith, right? 7 DR. JAMES YOUNG: Yes. Yep. 8 MR. MARK SANDLER: And -- and again, 9 certainly the issues that are raised in the Maclean's 10 articles, article vis-a-vis, the SM case would be of 11 concern to you as Chief Coroner, would they not? 12 DR. JAMES YOUNG: Oh, of course. 13 MR. MARK SANDLER: Right. And -- and then 14 if you go back to page 1 of the article -- I'm sorry, page 15 2, we see that at page 2 it says: 16 "The consequences in two (2) 17 controversial cases were particularly 18 dire. In Timmins, Ontario a family was 19 bankrupted by the hundred and fifty 20 thousand dollar ($150,000) cost of 21 defending a twelve (12) year old girl 22 against the wrongful charge of 23 manslaughter, based on Smith's testimony 24 that took almost three (3) years to 25 resolve. After this case we own
1921 nothing, said the girl's father, who 2 sold the home that he had built and 3 cashed in his retirement savings to pay 4 for her defence." 5 And then skipping down to the bottom of the 6 page it says: 7 "Smith's involvement in the case of the 8 Timmins girl brought harsh commentary 9 from the bench as long ago as 1991." 10 Page 62: 11 "Ontario Provincial Court Judge Patrick 12 Dunn criticized him for not even 13 following his own prescribed autopsy 14 procedures in accusing the grade six (6) 15 student of shaking a sixteen (16) month 16 old baby to death. Cairns, the Deputy 17 Chief Coroner and a close colleague of 18 Smith, dismisses Dunn's criticisms. The 19 Judge says Cairns didn't understand the 20 medical evidence." 21 And again, it would appear that the 22 references at page 2 and page 3 of the Maclean's article 23 are to the SM case that we're talking about. 24 DR. JAMES YOUNG: Yes, they -- I believe 25 they are and I -- I would re -- re -- read those and --
1931 and reading the beginning, again I think Dr. Cairn's 2 reference and when I read that, unfortunately I -- I leap 3 to the -- to the information I've been given about Dr. 4 Smith that -- that the judge now understood the case 5 differently and -- and accepted it. 6 And I -- when I read that and I read his 7 comment, that's what I think. You know, I would read that 8 and that would be, I believe, I mean I can't -- I can't 9 put myself back there because I don't -- I remember 10 reading the article, but it -- it didn't sink in; that's 11 all I know. 12 MR. MARK SANDLER: All right. And then 13 finally at Tab 16 of Volume IV, PFP056581, we see a letter 14 from you to Mr. and Mrs. James Hunter in Ottawa dated June 15 the 28th of 2001: 16 "Thank you for your letter of June the 17 26th in which you raised some very 18 interesting issues in the letter. 19 First, I would like to comment on the 20 article in Maclean's magazine on May 14, 21 2001. In my view, this article was dead 22 wrong in that it's full of inaccurate 23 assumptions and statements and is 24 currently the subject of a lawsuit. I 25 say this to emphasize, in my view, that
1941 little attention is paid to the facts in 2 the article, as in many instances are 3 not accurate reports to the facts." 4 DR. JAMES YOUNG: Mm-hm. 5 MR. MARK SANDLER: It's difficult to -- to 6 kind of figure out what that line means. 7 DR. JAMES YOUNG: Yes, I hear you. 8 MR. MARK SANDLER: I'm not going to 9 critique the grammar. And then you say: 10 "The issue that you raise of experts 11 stating within their area of interest is 12 very important and correct. It's 13 increasingly become an issue in the time 14 since the inquest into Madeline's 15 (phonetic) death." 16 And I take it they -- they were involved in 17 -- in the death of a child themselves? 18 DR. JAMES YOUNG: That's right. 19 MR. MARK SANDLER: And you knew them in 20 that context? 21 DR. JAMES YOUNG: Yes. 22 MR. MARK SANDLER: And then you went on to 23 talk about that issue about experts speaking outside of 24 their expertise and -- and how you intended -- or had 25 dealt with it. So it would appear in -- in this article
1951 that -- I'm sorry, in this letter that you've commented 2 that the article in Maclean's Magazine was dead wrong in 3 that it's full of inaccurate assumptions and statements. 4 Two (2) questions arise out of that. But 5 the first is: Would you agree with me that it would -- 6 short of someone actually sending you the reasons for 7 judgment in the Dunn case -- there were lots of 8 opportunities that presented themselves to you both in Mr. 9 Gagnon's complaint, in The Fifth Estate newscast, in the 10 Maclean's article, to bring to your attention the concerns 11 that had been raised in the SM case, both about the work 12 of Dr. Smith and that of the clinicians from The Hospital 13 for Sick Children who had testified? 14 Is that fair? 15 DR. JAMES YOUNG: Well, I -- I think I 16 deserve a chance to comment on the Maclean's article 17 first. 18 MR. MARK SANDLER: Sure. That's the 19 second part of my question, so -- 20 DR. JAMES YOUNG: Oh, okay. 21 MR. MARK SANDLER: -- so if I can just -- 22 DR. JAMES YOUNG: All right. 23 COMMISSIONER STEPHEN GOUDGE: We are 24 stop -- 25 MR. MARK SANDLER: -- because I'm going to
1961 give you an opportunity to -- 2 COMMISSIONER STEPHEN GOUDGE: We are 3 stopping in thirty (30) seconds, Mr. Sandler, so you make 4 the call. 5 MR. MARK SANDLER: All right. I'm going 6 to ask you -- 7 DR. JAMES YOUNG: Could I be asked that 8 question then tomorrow? 9 MR. MARK SANDLER: I think that's -- 10 DR. JAMES YOUNG: Because I think that's a 11 very important question. 12 MR. MARK SANDLER: Why don't we pause 13 right there and we can take it up tomorrow morning, if we 14 may, Dr. Young? 15 DR. JAMES YOUNG: Okay. 16 MR. MARK SANDLER: Thank you. 17 COMMISSIONER STEPHEN GOUDGE: Sorry, I 18 have to do this, but we will convene at 9:30 tomorrow. 19 20 (WITNESS RETIRES) 21 22 --- Upon adjourning at 4:21 p.m. 23 24 25
1971 2 3 4 5 Certified Correct, 6 7 8 9 ___________________ 10 Rolanda Lokey, Ms. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25