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 30th 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 (np) ) 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 ) Criminal Lawyers' 4 Breese Davies (np) ) Association 5 Joseph Di Luca (np) ) 6 Jeffery Manishen (np) ) 7 8 James Lockyer (np) ) William Mullins-Johnson, 9 Alison Craig ) Sherry Sherret-Robinson and 10 Phil Campbell (np) ) 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 ) College of Physicians and 12 Carolyn Silver ) Surgeons 13 14 Michael Lomer (np) ) 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 JAMES GORDON YOUNG, Resumed 5 6 Continued Examination-In-Chief by Mr. Mark Sandler 6 7 8 9 Certificate of transcript 285 10 11 12 13 14 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 THE COMMISSIONER: Good morning. 6 Mr. Sandler...? 7 MR. MARK SANDLER: Yes. Good morning, 8 Commissioner. Good morning, Dr. Young. 9 DR. JAMES YOUNG: Good morning. 10 11 JAMES GORDON YOUNG, Resumed 12 13 CONTINUED EXAMINATION-IN-CHIEF BY MR. MARK SANDLER: 14 MR. MARK SANDLER: Dr. Young, if you 15 could go back to Volume IV, Tab 16 of the materials that 16 you have, and that's PFP056581. 17 And you'll recall that when we left off 18 last night, I had taken you to your letter to the 19 hunters, in which you commented on the article at -- in 20 Maclean's Magazine, entitled "Dead Wrong", by saying: 21 "This article was dead wrong in that 22 it's full of inaccurate assumptions and 23 statements and is currently the subject 24 of a lawsuit and that very little 25 attention should be paid to the facts
71 in the article." 2 And -- and you didn't have an opportunity 3 to explain your -- your thinking in connection with that 4 article before we broke. So could you tell the 5 Commission what -- what your thinking was in that regard. 6 DR. JAMES YOUNG: Sure. I wasn't 7 enamoured with the article. I felt it was unfairly 8 written and not balanced journalism, and I -- I was -- 9 you know, frankly a little disturbed by the way it was 10 written. And -- and so I -- and I -- I felt it was both 11 unfair to the facts, and unfair to -- to Charles. 12 So I -- I was not -- I was not terribly 13 happy about the article and -- and put very little store 14 or confidence in it, because I -- I really was quite -- 15 quite put off by it. 16 MR. MARK SANDLER: Right. In -- in 17 fairness, did -- did you ever delegate anyone to -- to 18 review the article insofar as it addressed the pathology 19 in the cases described, and report back to you on what 20 was accurate and what was inaccurate in the article? 21 DR. JAMES YOUNG: No. I read through the 22 article and just from my own reading of the article there 23 were issues -- I took issue with some of the statements 24 in the article. I -- I felt the article, as I say, was 25 unfair in many respects, and was -- was trying to make a
81 point in an unfair way. 2 So I -- I looked through the article. I - 3 - I certainly looked through the article to see if there 4 was any cases that I wasn't aware of, for example, but I 5 -- I didn't do a -- an analysis of it. I mean, I -- I 6 wasn't -- I didn't think it was that good an article, I 7 suppose, that it deserved that. 8 But I didn't -- I didn't do anything with 9 it and -- and very few people talked to me about it, 10 other than, you know, I know Charles was very upset about 11 it. And -- and -- so, no, that -- that's as much as I 12 did, was read it. 13 I looked at it. I thought it was unfair. 14 When I got the letter from about it, I just simply fired 15 off that, you know, that I didn't like the article, or I 16 didn't favour the article. 17 MR. MARK SANDLER: Now, at page 3 of the 18 article, if I can take you back to Tab 14, and I'm not 19 going to take you through all of the features of it -- 20 but at page 3 -- and this is 125639. 21 On page 3 of that article, you'll see in 22 the second and the right hand side, first full paragraph 23 it says: 24 "Cairns, who has worked closely with 25 Smith for a decade calls him a
91 wonderful asset in the investigation of 2 child deaths. He's a friend. I admire 3 his work, and he's greatly admired at 4 the Hospital for Sick Children, Cairns 5 told Maclean's. He's done a tremendous 6 amount of good over the years. His 7 sincerity is beyond reproach. 8 Smith himself did not respond to 9 numerous interview requests from 10 Maclean's. Cairns said that the recent 11 controversies have taken a toll on 12 Smith. He's not one of those Teflon 13 people who says, I don't give a damn 14 what people say, says Cairns. He noted 15 that his colleague had been involved in 16 many successful legal cases." 17 And -- and you see that Maclean's then 18 goes on to site three (3) of those legal case in the 19 passages that follow. 20 Did you have any discussion with your 21 deputy chief coroner about the tone or content of his 22 contribution to the article? 23 DR. JAMES YOUNG: Yes, I did. 24 MR. MARK SANDLER: And what discussions 25 were those?
101 DR. JAMES YOUNG: I had expressly -- I 2 had had a discussion at the time that I decided not do 3 any further interview with -- with Maclean's that -- and 4 I talked to Dr. Cairns and said I really didn't -- was 5 not going to participate further, and I -- I think 6 strongly advised that he be very careful and cautious in 7 what he said. 8 I -- I think this is sort of -- at -- at 9 this point in time, I -- I certainly was -- was becoming 10 worried about the -- the potential damage to the Office 11 of the Chief Coroner, and I was not -- I didn't want to - 12 - any blanket endorsements or strong endorsements of Dr. 13 Smith, at this time. And for that reason, I advised Dr. 14 Cairns I didn't want him doing that either. 15 He chose otherwise and afterwards, and one 16 (1) of the only times, I think we strongly disagreed or - 17 - or I had strong words for him. I told him my 18 displeasure in -- in him having done the interview and 19 done it in the manner that he did. I felt it was wrong 20 and that he would regret it afterwards. 21 MR. MARK SANDLER: Okay. And we'll come 22 back to -- to that time period, as we proceed 23 chronologically. But as you'll recall, I -- I took off 24 the chronology somewhat to deal with the issue arising 25 out of the judgment release by Justice Dunn. And if I
111 can take -- take you back into the chronology because 2 you'll recall that the judgment was released in 1991, and 3 I want to move forward to 1992, if I may and take you to 4 Volume VIII of your materials at Tab 37. And this is 5 PFP145968. 6 DR. JAMES YOUNG: Yes. 7 MR. MARK SANDLER: 145968. Thank you. 8 DR. JAMES YOUNG: Yeah. 9 MR. MARK SANDLER: And as you'll see, 10 this is a -- a letter that is addressed to the complaints 11 investigator, Duncan Newport, at the College of 12 Physicians and Surgeons of Ontario dated May 4, 1992 13 concerning the Amber case, and -- and it comes from 14 Charles Smith. 15 And let me ask you at once, back in 1992, 16 did you see this letter? 17 DR. JAMES YOUNG: No, I -- only this week 18 is -- would be the first time I've ever seen it. 19 MR. MARK SANDLER: All right. Now, if I 20 can take you to page 2 of the letter. 21 DR. JAMES YOUNG: Yes. 22 MR. MARK SANDLER: And first of all, 23 there's references to you at various points in the 24 letter, but I want to ask you about the reference about 25 five (5) paragraphs down on page 2. And it starts with
121 the words, "The College of Physicians and Surgeons," if 2 you have that? 3 DR. JAMES YOUNG: Yes. 4 MR. MARK SANDLER: 5 "The College of Physicians and Surgeons 6 is caught in a difficult situation 7 because of the complaint launched by 8 the family. Obviously, I believe that 9 there can be no resolution of this 10 problem. However, as the College is 11 required to consider the nature of the 12 complaint, may I suggest to you that 13 you seek the wise counsel of the Chief 14 Coroner, Dr. James Young. He became 15 aware of Amber's death in August 1988 16 and has an excellent knowledge of the 17 issues and problem of this case. 18 Furthermore, I believe his opinion 19 should be sought, as my involvement in 20 the post-mortem examination was based 21 upon my role as a coroner's pathologist 22 for the Ministry of the Solicitor 23 General and the Chief Coroner's Office 24 through the Coroners Act of Ontario, 25 and my involvement at no time was based
131 upon my position as a member of the 2 medical staff at the Hospital for Sick 3 Children." 4 Now just stopping there for a moment. The 5 point that's being made in the latter portion of that 6 paragraph has to do with jurisdiction of the College, or 7 the appropriateness of the college investigating matters 8 where a pathologist is performing a role within the 9 coronial system. 10 Am I right? 11 DR. JAMES YOUNG: Yes. 12 MR. MARK SANDLER: And that has been the 13 subject -- that was the subject of discussions as between 14 you and -- and the College through your tenure as the 15 Chief Coroner. 16 Am I right? 17 DR. JAMES YOUNG: Well I think Dr. Smith 18 is making two (2) points here, one (1) of which I take 19 exception to, and one (1) of which was an ongoing 20 negotiation. 21 So I think one (1) of the two (2) elements 22 in this paragraph is the element of whether or not the 23 College has jurisdiction. 24 MR. MARK SANDLER: All right. And just 25 stopping there for a moment. The position that the Chief
141 Coroner took in relation to the College -- and we're 2 going to see this a little bit later on when we look at 3 three (3) complaints that made their way to the college, 4 including Amber -- was -- was that the College should be 5 referring these kinds of matters to the Chief Coroner as 6 opposed to dealing with them themselves, unless they had 7 to do with conduct unbecoming outside of the role of a 8 pathologist que (phonetic) coronial services. 9 Is that a fair summary of what your 10 position was? 11 DR. JAMES YOUNG: No, not entirely. 12 MR. MARK SANDLER: All right. 13 DR. JAMES YOUNG: It's close, but it's -- 14 there's an important difference. 15 MR. MARK SANDLER: All right. 16 DR. JAMES YOUNG: I held the -- the view 17 that when the issue came to the conduct of a coroner, and 18 that was normally what was covered by Coroners' Council, 19 and in fact until the complaint about Dr. Smith, that was 20 all we ever dealt with, was complaints about coroners. 21 MR. MARK SANDLER: As opposed to 22 pathologists? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: Right. 25 DR. JAMES YOUNG: That the College --
151 that -- that I had jurisdiction and that there were 2 problems -- and if the College started to get into that 3 business which we can, as you say, cover -- cover later, 4 but when it came to pathologists, I felt that there was 5 an element of the same, but I -- I readily acknowledge in 6 any discussions with the College, that my position was 7 weaker, in that the performing of an autopsy could be 8 viewed as a medical act. 9 But the problem I would have is that that 10 has to be combined with -- and often will be combined 11 with the whole issue around the testimony in court and 12 they should not be separated out. And the College didn't 13 have the expertise or necessarily should they be 14 reviewing what goes on in a court and trying to interpret 15 two (2) experts and -- and a case, and put it in context. 16 So I saw difficulties, but I always held 17 the -- the view that they were two (2) different -- they 18 were related arguments, but they were different 19 arguments. 20 MR. MARK SANDLER: In other words, in 21 both the coroner's situation, and the pathologist's 22 situation, you could see a rationale for -- for why the 23 College should not deal with the matter, but the position 24 was stronger insofar as a coroner was concerned than it 25 was in connection with a pathologist?
161 DR. JAMES YOUNG: Well a coroner doing a 2 -- a coroner doing a coroner's investigation is not -- is 3 not providing a medical act. The person is dead; they've 4 never been their patient, they're not treating them. 5 So I don't see that the College -- the 6 only time the College has jurisdiction in -- in my view 7 was, if they -- if it had to deal with a matter of -- of 8 ethics or, you know, criminal matters or I think we had 9 overlapping interests in jurisdiction if -- in instances 10 like that, but not in matters of the coroner should have 11 ordered an autopsy, the coroner should have ordered an 12 inquest, the coroner came to the wrong conclusion in 13 regard to death. That's not in my view a medical act -- 14 MR. MARK SANDLER: All right. Now we'll 15 come back -- 16 DR. JAMES YOUNG: And I had other reasons 17 which we'll come back to for -- 18 MR. MARK SANDLER: We'll come back to 19 that. 20 DR. JAMES YOUNG: -- for advancing that 21 as well. In terms of running -- trying to run a system 22 and keep manpower flowing within that system. 23 MR. MARK SANDLER: I mean simply put, for 24 pragmatic reasons, you were concerned about the impact 25 upon the availability of coroners and pathologists, if
171 they were subject to discipline by the College? 2 DR. JAMES YOUNG: Every step of 3 discipline carries with it -- I'm not opposed to 4 discipline and review -- but if there's -- the more 5 different forms -- and families move from one (1) to the 6 other to the other to the other -- eventually you tire 7 people out, and they say, I won't do this work any more. 8 I mean, we have had, since then, the 9 instance, for example, where we got a -- a review -- 10 someone did a -- the office a favour, did a review on a 11 case and then us promptly landed in two (2) years of -- 12 of college hearings over their review of the case that 13 had nothing to do with treating them in life. 14 The next time we phone that doctor, he is 15 not going to do a review for two hundred and fifty 16 dollars ($250) and -- and jeopardize his licence and go 17 through two (2) years of -- of harm or -- or tension, 18 because this upsets people tremendously to go through 19 these sorts of hearings. 20 So I'm -- I've got a system to run as well 21 and I -- with too much review, I can't run the system. I 22 run out of people who are willing to do it. 23 MR. MARK SANDLER: Okay. Now, so we come 24 back to the question that I was asking you, and that is 25 that, insofar as this paragraph is concerned, you
181 regarded what Dr. Smith had to say on that point as 2 having some validity. And you said you took some 3 exception to something else that was contained in the 4 paragraph. 5 What did you take exception to -- or what 6 do you take exception to? 7 DR. JAMES YOUNG: Well, I think the other 8 message in this -- in this paragraph is that, Ask me 9 about the specifics of the case and I'll be supportive. 10 And I think that has to be taken in the context that I 11 don't know about the Dunn Report and I don't -- I haven't 12 clear -- it should be obvious to the -- to, for example, 13 Dr. Smith that I don't know about it, because if I'd 14 known about it, I'd have taken some action and reviewed 15 it and he'd have known that I was taking action and 16 reviewing it. 17 I -- he also has to be aware that he's 18 told me that -- that Justice Dunn is okay with the case 19 now. And if you look at the top paragraph -- the top two 20 (2) paragraphs on that same page -- he's indicating to 21 the College that -- much as I've said that -- that his 22 view is that Justice Dunn -- he had a relationship and 23 had spoken to Justice Dunn and things were much more 24 correct than they were. 25 So he's involving me in a case where I
191 have information that, you know, I now have reason to 2 believe was inaccurate. 3 MR. MARK SANDLER: Well, let's just go 4 slowly here, if we may, because I -- I'm really asking 5 some fairly narrow questions, Dr. Young. So what your 6 point is, simply put, is that -- is that you take some 7 exception to your ability to speak to the specifics of 8 the case. 9 That's it in a nutshell? 10 DR. JAMES YOUNG: I had the wrong 11 information that I would have spoken on, that's right. 12 MR. MARK SANDLER: Now, you made 13 reference to the -- to the first paragraph at the top of 14 the page. And -- and just to be clear, it reflects, in 15 the middle of the page: 16 "In spite..." 17 I'm sorry, in the middle of the paragraph: 18 "In spite of several days of vigorous 19 cross-examination by the defence 20 counsel for Amber, Mr. Gilles Renault, 21 my opinion did not waver. Furthermore, 22 on two (2) occasions during my week of 23 testimony, the Judge, Patrick Dunn, 24 discussed my evidence with me at 25 length. He repeatedly indicated to me
201 that he believed Amber to be guilty and 2 that he believed the opinions provided 3 by Drs. Barker, Driver and me." 4 Now, just stopping there for a moment. 5 You told the Commissioner yesterday that you had received 6 an explanation from Dr. Smith to the effect that after 7 the case had been over, Justice Dunn had -- had 8 communicated to Charles Smith that had he known what he - 9 - what he later learned, the result might have been 10 different. 11 Here there's an allegation by Dr. Smith, 12 apparently, that during the trial itself, Justice Dunn is 13 discussing his evidence with Dr. Smith and indicating 14 that Amber is guilty. 15 Did -- did that explanation -- was that 16 ever proffered by Dr. Smith to you? 17 DR. JAMES YOUNG: Not that I recall, no. 18 MR. MARK SANDLER: All right. Well, 19 would you have recalled that if there was an allegation-- 20 DR. JAMES YOUNG: I think so. 21 MR. MARK SANDLER: -- being made by Dr. 22 Smith that, privately, the judge was telling him that 23 Amber's guilty during a trial at which he later 24 acquitted? 25 DR. JAMES YOUNG: Yeah, I think I would
211 remember, just as I certainly remembered the conversation 2 that he had run into Justice Dunn later and been told 3 that -- that Justice Dunn hadn't understood the case. 4 MR. MARK SANDLER: Now, can you provide 5 us some guidance? Apart from not having seen the content 6 of the letter, were you aware that a complaint had been 7 made by Amber's -- sorry, by SM's family to the College 8 of Physicians and Surgeons concerning Dr. Smith's 9 handling of that case? 10 DR. JAMES YOUNG: Yes. I -- I would be 11 aware that there was a -- I -- I think I was aware that - 12 - that both the Nicholas case and the Amber case had 13 resulted in the College -- because we were having these 14 discussions about jurisdiction -- 15 MR. MARK SANDLER: All right. 16 DR. JAMES YOUNG: -- so that would be why 17 I was aware. 18 MR. MARK SANDLER: And -- and taking what 19 you've said about -- about some exception to what Dr. 20 Smith has said and some -- and -- and your comments about 21 the -- the Justice Dunn component of the letter, can we 22 take from the letter that -- that Dr. Smith had some 23 conversation with you before writing this letter, at 24 least insofar as what your position would be on the 25 jurisdiction of the College, or do we know?
221 DR. JAMES YOUNG: I -- I believe he -- he 2 asked whether my position had changed in regards to the 3 jurisdiction of the College and I would have related what 4 I related to you today. That would be it. That would -- 5 he certainly didn't say, I want the College to talk to 6 you about the facts of the case. 7 MR. MARK SANDLER: All right. And did he 8 have any discussion with you at that point in time about 9 -- about what had happened in the case; what Justice Dunn 10 had said beyond what you've all ready described? 11 DR. JAMES YOUNG: I couldn't -- I'm 12 afraid I couldn't tell you. I don't remember. 13 MR. MARK SANDLER: Okay. So lets move on 14 in the chronology, if we may, Dr. Young. 15 And lets see what else is happening during 16 -- during this time frame. And if I can take you Volume 17 I -- we're going to leave the Amber case for a little bit 18 -- and go to Tab 16, and this is PFP057354. And this is 19 a letter from Dr. Phillips at the Hospital for Sick 20 Children to you, dated September 17th, 1991. 21 DR. JAMES YOUNG: I'm sorry, Volume...? 22 MR. MARK SANDLER: Volume I. 23 DR. JAMES YOUNG: Volume I of the black 24 binders, or -- 25 MR. MARK SANDLER: Yes, of -- yes, of the
231 black binders. 2 DR. JAMES YOUNG: Sorry. Okay. Because 3 there isn't a Tab 16 in the white one, so -- okay. 4 MR. MARK SANDLER: Thank you. 5 So this is a September 17th, 1991 letter 6 from Dr. Phillips to -- to you, and he's enclosing a 7 signed agreement for the Ontario Pediatric Forensic 8 Pathology Unit. 9 And he notes in the third paragraph: 10 "You will note that Section 4C was 11 added. The purpose of this addition is 12 clarify lines of authority, and to 13 underscore the fact that the individual 14 pathologists remain responsible to the 15 coroner and not to a director of this 16 unit for their work." 17 And -- and I won't take you there, but -- 18 but we actually see in -- in later tabs that -- that that 19 point is emphasized by your counsel with you, and that 20 ultimately you do return the signed agreement concerning 21 the Ontario Pediatric Forensic Pathology Unit. 22 And -- and you have a recollection of that 23 process, I take it? 24 DR. JAMES YOUNG: Yes, I -- I do. 25 MR. MARK SANDLER: And -- and we've heard
241 a fair bit all ready about -- about the unit housed in 2 the Hospital for Sick Children. And what we've seen from 3 the documents and the testimony that's all ready been 4 heard, is that the Chief Coroner's office and you were 5 very supportive of the creation of that unit within the 6 Hospital for Sick Children to address pediatric forensic 7 pathology cases. 8 Am I right? 9 DR. JAMES YOUNG: Absolutely. 10 MR. MARK SANDLER: And -- and I think 11 we've heard the rationale for -- for the existence of -- 12 of that program. 13 What I want to ask you is this: 14 Dr. Phillips has made reference to the 15 fact that the individual pathologists will remain 16 responsible to the coroner and not to a director of the 17 unit for their work. 18 And what did that mean to you in terms of 19 the oversight and responsibilities that would flow to the 20 coroner connected with this unit? 21 DR. JAMES YOUNG: To the coroner 22 connected with the unit, or to the...? 23 MR. MARK SANDLER: What responsibilities 24 would flow to the -- to the coroner? 25 DR. JAMES YOUNG: Well, the -- the
251 position -- as far as I was concerned, the position of 2 Director was an administrative position, and that's what 3 we had agreed upon. It was an administrative position 4 because budget was going to flow there. There needed to 5 be certain processes and procedures put in place to 6 administer that budget, to draw up rotas and schedules to 7 ensure that paperwork was flowing. And that was -- the 8 Director's role was to do those things. 9 The concern in part at the time was that 10 among the people doing cases at -- at the Hospital for 11 Sick Children, Dr. Smith, in both years of service and 12 seniority, was -- was the junior member and that there 13 may be problems if he was viewed as being the -- if the 14 Director was le -- not just an administrative position, 15 but rather carried academic and -- and supervisory then 16 that elevates the position beyond what it was meant to be 17 -- that it -- it was meant to be a supervisory position 18 in the sense of keeping the workflow going and dividing 19 the work and making sure that things were -- were 20 happening. 21 So that was the way we had agreed on it 22 and that was fine with us. We also recognized, I think, 23 with time that as -- the more cases that, particularly, 24 the Director did just out of a -- as time changed and 25 personnel changed then people just go to that person
261 because they have the most experience whether they, in 2 fact, are the supervisor of the -- of -- of the unit or 3 not. 4 And that -- but it was not Dr. Smith's 5 role to do -- you know, he was not the quality assurance 6 person in that unit. 7 MR. MARK SANDLER: Well, I -- I've kind 8 of lost the thread here and it's undoubtedly my failing, 9 but I guess the question that I'm -- that I'm asking -- 10 because this is before Dr. Smith is actually appointed as 11 the Director of the unit. 12 What did you understand the role of the 13 coroner would be to provide oversight for the quality, 14 timeliness, -- 15 DR. JAMES YOUNG: Well, -- 16 MR. MARK SANDLER: -- competence of the 17 pathologists working within the unit? 18 DR. JAMES YOUNG: Well, the -- the role 19 of the coroner and the role of the Chief -- I mean, the - 20 - the ultimate role of quality assurance over -- over 21 both pediatric and adult cases -- there are -- there are 22 a number of quality assurance measures, but the Chief 23 Forensic Pathologist is really -- that's one (1) of their 24 key roles whether they're located in the Office of the 25 Chief Coroner or not.
271 I think they should be in the Office of 2 the Chief Coroner partly for that reason; that -- that 3 the coroner's office has a responsibility because they 4 order the autopsy and they want it to be done right. 5 But it's specifically on a day-by-day 6 basis -- the role of the Chief Forensic Pathologist. The 7 problem, of course, at that point in time, is the Chief 8 Forensic Pathologist was -- was exercising very little 9 quality assurance control, but we were certainly planning 10 on building that in -- into future models. 11 So that role as of one (1) of the quality 12 assurance measures within the system -- and I might add, 13 I mean, I think the other very, very important one is -- 14 is the courtroom and the defence. And the defence 15 experts are the -- equally important. 16 They're -- they're the ones that are 17 there, they -- they're hearing and they should be judging 18 on -- you know, whether or not what's being said is 19 reasonable of unreasonable. 20 And that's the other big, big check in 21 balance besides the Office the Chief Coroner and the 22 Chief Forensic Pathologist. So I viewed it as -- I 23 wasn't surprised by this because I think that's a correct 24 -- that's the way it should be. It's not up to the 25 Director of this unit to be the quality assurance.
281 MR. MARK SANDLER: So would you agree 2 with Dr. Cairns, in kind of trying to find the bottom 3 line, that -- that when the agreement makes reference to 4 the individual pathologist remaining responsible to the 5 coroner, there was not a Chief Forensic Pathologist who 6 was exercising quality control functions, at that time, 7 and the oversight on the part of the coroner during that 8 period of time, September 1991, was largely nonexistent? 9 DR. JAMES YOUNG: It was beginning to 10 build -- would be the -- it -- it wasn't vigorous. We 11 were beginning to build a system at that point in time 12 and certainly wa -- wouldn't -- I wouldn't say it's 13 nonexistent because, you know, the individual coroners 14 and the Office are getting and the Regional Coroner's are 15 getting reports, and they are reading them, and they are 16 forming opinions. 17 But it wasn't nearly as vigorous as it 18 needs to be and it certainly needed a great deal of time, 19 money, and -- and effort to build it. 20 MR. MARK SANDLER: All right. If you go 21 to Volume I, Tab 23. 22 COMMISSIONER STEPHEN GOUDGE: Just to 23 sort of complete the -- the picture, Mr. Sandler. Can I 24 ask you, Dr. Young, I take it you were quite content that 25 the Chief of Pathology at the hospital had no quality
291 control responsibility for the work done for the coronial 2 system? 3 DR. JAMES YOUNG: I would agree, although 4 I would expect -- I mean, I know Dr. Phillips well enough 5 that if -- I would expect both the Director Unit and Dr. 6 Phillips, if they had a concern, they would address -- 7 they don't have to solve the problem, but they would 8 bring it to my attention. 9 I mean, they're the ones working within an 10 area. Just as I would expect any of the other 11 pathologists who were working there, if they had a 12 concern about the Director that they would bring it to 13 our concern. But do they need to solve the problem, do 14 they need to be the quality assurance on a day-by-day 15 basis, no, of course not. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: All right. Now, at 19 Volume I, Tab 23, which is PFP134457. We see that in May 20 of 1992, Dr. Phillips advises Dr. Smith that at your 21 suggestion -- your being Dr. Young just so the record is 22 clear -- Dr. Young's suggestion -- a Director of the 23 Forensic Pediatric Pathology Unit should be appointed, 24 and he gives -- it gives him -- great pleasure to appoint 25 Dr. Smith to that position. And he says:
301 "I will continue to have involvement in 2 the overall program, but your position 3 includes the responsibilities for all 4 day-to-day operations of the Unit, and 5 liaison with the Coroner's Office, and 6 police." 7 And if you then go to the next tab, Tab 8 24, which is PFP118109. This is a letter from -- from 9 you to Dr. Phillips that -- for May of 1993, that 10 reflects: 11 "It's a great pleasure that I'm able to 12 inform you that the Ministry of the 13 Solicitor General and Corrections will 14 be able to continue its funding of the 15 Ontario Pediatric Forensic Unit for the 16 fiscal year, which began April 1, 17 1993." 18 And skipping to the second paragraph: 19 "Dr. Smith has done an outstanding job 20 in leading the Unit, and in presenting 21 the work of the Unit to various groups. 22 He's lectured extensively as well as 23 handling many difficult forensic cases, 24 and has been most impressive in the 25 performance of his duties."
311 Now just stopping there for a moment. 2 Looking at the two (2) letters together, you -- you'd 3 agree that, first of all, it was at your suggestion that 4 he be made the Director of that Unit and, second of all, 5 as of May of 1993, you were impressed with the 6 outstanding job which he appeared to be doing in leading 7 the Unit and presenting the work of the Unit to various 8 groups? 9 DR. JAMES YOUNG: I would characterize 10 his appointment in -- in two (2) ways. One (1), it was 11 mutually agreed between Dr. Phillips and I, and it was 12 decided I would write to him since he would be presenting 13 this to the hospital. 14 But I think from the beginning we had 15 assumed it would be Dr. Smith who would do it. I think 16 if you had surveyed the other people at the time and 17 asked them if they wanted an administrative job and they 18 wanted to run the Unit, the answer was he was probably 19 the only one (1) that was interested as well. 20 But he was -- also in terms of what he was 21 doing, the logical person to do it. He had the most 22 interest. He was going to be around the longest, and he 23 really wanted to see the Unit built and -- and prosper. 24 MR. MARK SANDLER: All right. 25 DR. JAMES YOUNG: So he was the -- he
321 really was the logical candidate at that point. 2 MR. MARK SANDLER: And then continuing on 3 in your letter, it says: 4 "I consider further development of 5 forensic pathology in the Province to 6 be a major priority. I believe we can 7 overcome the dwindling supply of 8 pathologists in the Province and ensure 9 an adequate supply of forensic 10 pathology through better education and 11 support of pathologists. With time we 12 would like to establish a series of 13 satellite forensic units throughout the 14 Province which will be run by forensic 15 pathologists and serve as regional 16 centres of expertise. Sick Kids and 17 Hamilton are the beginnings of such a 18 system." 19 And stopping there for a moment. I won't 20 take you to all the documents -- they're also reflected 21 in the Institutional Report that's been filed by the OCCO 22 -- but you're making reference there to the Regional 23 Centres of Excellence that were established shortly 24 thereafter. 25 Am I right?
331 DR. JAMES YOUNG: Yes, I am. 2 MR. MARK SANDLER: And then at page 2: 3 "It has become obvious that the 4 development of forensic pathology in 5 the province also includes improving 6 the system of communication between 7 pathologists and coroners, and 8 difficult forensic examinations of 9 multiple -- a multi-disciplinary 10 approach including police, Crown 11 attorneys, scientists, pathologists and 12 coroners is often necessary in order to 13 arrive at appropriate conclusions." 14 And then skipping to the next paragraph, 15 which I want to ask you about: 16 "There have been a number of cases 17 throughout the province where the 18 results of the pathologists do not 19 properly mesh with the conclusions 20 reached by the investigators and the 21 coroner. In many instances, the 22 problem is that the pathologist report 23 reaches too strong a conclusion, 24 because the pathologist may be unaware 25 of some of the investigative details.
341 It has become evident that not only 2 better communications needs to take 3 place, but also pathologists need to be 4 extremely cautious as to what they 5 write under cause of death. To improve 6 this situation, I would suggest that 7 system of checks and balances to be 8 established in regards to reports 9 within the Ontario Pediatric Forensic 10 Unit. Difficult cases should be 11 discussed extensively by the various 12 people within the Unit, and dialogue 13 with the coroners, police and 14 scientists is actively encouraged. 15 When the pathologist has completed his 16 or her report, I would suggest the 17 report be checked and signed off by the 18 Director of the Pediatric Unit in order 19 to ensure that the wording in the 20 conclusion is most appropriate for the 21 forensic setting. I'm not suggesting 22 that the observations or conclusions of 23 the pathologist should be questioned, 24 but rather that we should be very 25 cautious in how these are worded in the
351 documents." 2 And just stopping there for a moment; what 3 was the concern or issue that had arisen in individual 4 cases that prompted your comment? 5 DR. JAMES YOUNG: I'm a very strong 6 believer in -- in team approaches in complex cases in 7 groups of -- of experts understanding each other's point 8 of view so that they can, in fact, reach the fullest of - 9 - of conclusions. But I very much encourage that this be 10 done very early. 11 And I -- I -- what tended to be happening 12 is exactly what happened, ultimately, in -- in the Tyrell 13 case where a long period goes by and a case is moving 14 along on a -- on a track. And then, all of a sudden, as 15 the trial approaches, people suddenly look around and 16 say, We need more support for some of the views that are 17 being expressed and we need to bring other experts in. 18 And the giant risk in doing that is that 19 all of a sudden someone comes up with a different -- 20 little bit different -- a slant or a -- or a fact or a -- 21 or a piece of medical knowledge that suddenly everyone 22 else says, Oh, well, if you tell me that, then I have to 23 alter my view and I have to change that. 24 And my view -- my very strong view -- is 25 this needs to be done at the beginning, not close to the
361 trial. And I certainly have expressed that repeatedly to 2 Crown attorneys in lectures and throughout my career. 3 And this has been a theme. I wrote this 4 letter in 1993. You know, it's been a -- it's something 5 you and I discussed at the Kaufmann Inquiry, these very 6 same issues, because this -- throughout my career I've 7 felt that this is -- the -- the lack of communication in 8 the criminal justice system is a huge problem that needs 9 to be overcome. 10 MR. MARK SANDLER: Now, just -- just 11 looking at that phrase; in many instances, the problem is 12 that the pathologist's report reaches too strong a 13 conclusion because the pathologist may be unaware of some 14 of the investigative details. 15 Now, are you referring there, for example, 16 to a scenario where the pathologist may reach the 17 conclusion that a death was natural without the benefit 18 of additional information provided through the multi -- 19 multi-disciplinary approach? Is it -- 20 DR. JAMES YOUNG: That's certainly one 21 (1) possibility. 22 MR. MARK SANDLER: All right. And -- and 23 were there instances where that was happening in the 24 Province during that period of time? 25 DR. JAMES YOUNG: Yeah. And I -- I don't
371 think I'm referring specifically or only to pediatric 2 cases. I'm talking about pathology in general; that this 3 is a direction that we need to take both in pediatric 4 cases and in adult cases. 5 MR. MARK SANDLER: And so just taking 6 that scenario for a moment, where -- where the 7 pathologist might express that a view that a death was -- 8 was natural -- and -- and I'm not using cause of death 9 terminology here, but just kind of rough and tumble 10 language -- would the Chief Coroner's Office get involved 11 in the discussions as to whether that conclusion was 12 warranted on a multi-disciplinary view of the case? 13 DR. JAMES YOUNG: Yeah, I think if -- if 14 the conclusion that's being reached doesn't seem to fit 15 with the other facts, the -- that's why the Regional 16 Coroners spend so much time reviewing the cases and 17 trying to ensure that they -- that the right hand and the 18 left hand seem to be consistent. 19 And if -- if there are issues arising as 20 to that consistency, then the approach that we've taken 21 is to say, Let's put the people in a room and let's have 22 the discussion. Let's make sure that everyone has heard 23 the same set of facts and that they're considering the 24 same things in reaching the conclusion. 25 If, at the end of that process, the expert
381 holds the view that this is what they believe, that is 2 their view and that's what experts do. They -- you know, 3 we -- we don't say, You must change your view. That's 4 not the approach that we can take; they're -- they are 5 the expert. If they've heard everything and they reach 6 that conclusion -- what we have done, on occasion, is if 7 -- if they reach that conclusion, we may ask for another 8 opinion even within the other -- within the office or 9 externally, and present both of those views, then, to the 10 Crown to sort out any differing opinions. 11 But we -- we certainly don't order the one 12 (1) person to change their opinion. They've heard the 13 facts; they still hold that view, then they hold that 14 view. 15 MR. MARK SANDLER: Do you see a systemic 16 concern, appreciating everything that you've just said, 17 that, in some instances, a pathologist, although not 18 ordered to change the opinion, may -- may feel pressured 19 or concerned about maintaining the opinion in the face of 20 this kind of conference that involves the Chief Coroner 21 and others? 22 DR. JAMES YOUNG: Well, first -- first of 23 all, it doesn't usually involve the Chief Coroner; 24 rarely, was I -- did I have the time to attend. But I 25 guess the -- I would raise it from the point of view, if
391 -- if you're not comfortable maintaining it in a room 2 with a discussion with your peers, are you going to be 3 comfortable sitting in court and defending it in a cross- 4 examination? 5 If -- if that made -- if -- if your 6 uncomfortable in a case conference, you ought to be 7 awfully uncomfortable in a -- in a cross-examination. 8 So I -- these are professional people who 9 have to stand by their opinion. And challenging 10 somebody's opinion shouldn't -- if it upsets them too 11 much, I -- they're probably in the wrong line of work. 12 MR. MARK SANDLER: All right. Now, 13 you've made reference to the fact that Dr. Smith was made 14 the Director of -- of the unit. 15 Back then, was there any discussion about 16 whether the director of a pediatric forensic pathology 17 unit should be accredited and trained as a forensic 18 pathologist? 19 DR. JAMES YOUNG: There was -- there was 20 not. There was a limited or nonexistent pool to draw 21 from, so it wasn't a con -- a bid consideration, at that 22 point. You -- you can't hire what doesn't exist. 23 MR. MARK SANDLER: And -- and recognizing 24 what you say about -- about the -- the availability of 25 person power back then, we've heard from -- for want of a
401 better description -- the forensic three (3) or three (3) 2 of the forensic -- three (3) of the five (5) reviewers 3 that were retained by the Chief Coroner, McLellan, to 4 look at Dr. Smith's cases or a number of them. 5 And they expressed the view, as has Dr. 6 Pollanen when he testified in the first week here, that 7 it's imperative in pediatric forensic pathology cases 8 that someone accredited and trained as a forensic 9 pathologist conduct those autopsies. 10 Is that a valid observation, in your view? 11 DR. JAMES YOUNG: That's a valid 12 observation in 2007. It's not a valid observation in 13 1991. That was not the discussion -- that was not being 14 discussed in 1991 or 1992 or 1993. It is a valid 15 observation now and it's the -- it's obviously what's 16 desirable. 17 It still has problems associated with it. 18 As you undoubtedly already heard, we don't have an 19 accreditation system in Canada; we haven't been able to 20 get the Colleges to build one. 21 But frankly, the debate was not -- that 22 was not being said loud and clear. And if you look to 23 this day, the vast majority of jurisdictions in North 24 America will not have an accredited pediatric pathologist 25 doing pediatric cases. Some will, if they're lucky
411 enough to have one (1), most will not. 2 MR. MARK SANDLER: But just stopping 3 there for a moment. The issue isn't whether they have an 4 accredited pediatric pathologist -- 5 DR. JAMES YOUNG: Pediatric forensic 6 pathologist. There -- there aren't very many of them in 7 North America. 8 MR. MARK SANDLER: And again, just so 9 you're not mislead, what we've heard is that it's -- it's 10 important that -- that this work be done in large measure 11 by someone who's accredited and trained as a forensic 12 pathologist as opposed to necessarily as a pediatric 13 forensic pathologist. 14 DR. JAMES YOUNG: But even at -- at that 15 point in time, in Ontario, we had a phenomenally small 16 pool of people who were trained forensically that we 17 could draw on and most of them their interests were in -- 18 in adult cases not in children's cases. 19 MR. MARK SANDLER: Okay. 20 DR. JAMES YOUNG: We -- the -- the pool 21 of forensic -- trained forensic people is very small. 22 And -- and it's always been problem and it's going to be 23 a problem in the future. 24 MR. MARK SANDLER: Now, we -- we've heard 25 that Dr. Chiasson later came onto the -- the scene after
421 Dr. Hillsdon Smith and -- 2 DR. JAMES YOUNG: Well, he came on 3 before. 4 MR. MARK SANDLER: He came before Dr. 5 Hillsdon Smith, but ultimately assumed the position as 6 the chief forensic pathologist? 7 DR. JAMES YOUNG: He was essentially 8 groomed for the position so that he would ready to assume 9 it when Dr. Hillsdon Smith retired. 10 MR. MARK SANDLER: All right. And at 11 that time, we -- we've heard during this Inquiry, some 12 concerns expressed about whether Dr. Chiasson was well 13 positioned to provide adequate oversight of Dr. Smith's 14 work having regard to the fact that he was more junior. 15 Indeed, I think we'll hear from Dr. Chiasson that he was 16 resident under Dr. Smith at one (1) point in his career. 17 Were those concerns being expressed back 18 during that period of time; that maybe Dr. Chiasson 19 couldn't provide, with no disrespect to him, adequate 20 oversight of Dr. Smith's work? 21 DR. JAMES YOUNG: No. No one was raising 22 those issues at that time. 23 Dr. Chiasson's role was to be responsible 24 for the quality assurance of forensic pathology in the 25 Province in -- in the best way that he could, and we --
431 we had a long way to go. 2 We were starting -- and frankly, as I -- I 3 -- as I said yesterday, the -- the focus, in fact, was on 4 -- on building from -- from the ground level, and from 5 the level of the cases in the smaller communities and 6 building up from there. 7 So they -- you know, the -- that issue of 8 -- of experience, Dr. Chiasson may have felt it. He 9 didn't discuss it with me, but that wasn't the direction 10 we were building the -- the system in those days, in any 11 event. 12 MR. MARK SANDLER: Okay. If you would go 13 to Volume I, Tab 26 of the same binder that you're in; 14 PFP134495. 15 And we're moving forward in time to 1994. 16 17 (BRIEF PAUSE) 18 19 MR. MARK SANDLER: Excuse me for a moment. 20 21 (BRIEF PAUSE) 22 23 MR. MARK SANDLER: Okay. This -- these 24 are notes of a meeting that -- that was held in July of 25 1994 that Deputy Chief Coroner Cairns described in his
441 testimony earlier in the week. 2 And you'll see a reference to certain 3 concerns being expressed by Dr. Becker, and if you look 4 at item 2 on page 1 of this document, it says: 5 "Would like dedicated forensic 6 pathology assistant to start to help 7 Charles Smith apparent backlog of, 8 question mark, sixty (60) plus cases as 9 far back as 1992." 10 Now stopping there for a moment. Were you 11 made aware of the apparent backlog of a number of cases 12 in that unit as described in this meeting of July 1994? 13 DR. JAMES YOUNG: Certainly I was aware 14 that there was a backlog developing, yes. 15 MR. MARK SANDLER: All right. And did 16 you acquire that knowledge from Dr. Cairns, Dr. Smith, 17 Dr. Becker, or some combination? 18 DR. JAMES YOUNG: I -- I don't know. I - 19 - I -- I remember knowing, but I don't know -- I don't 20 know who told me. 21 MR. MARK SANDLER: All right. And then 22 reflecting -- at item 3, it says: 23 "Problems of communication between 24 members of department performing 25 medicolegals and coroner's office, all
451 directed through Charles Smith. I 2 would want more direct contact." 3 And then you'll see at the following page, 4 page 2, that -- at the last item: 5 "Obvious there is an intra-departmental 6 communication problem, as well as an 7 extra-departmental one (1). Discuss 8 the possibility of monthly forensic 9 pathology working..." 10 And it's reflected -- somebody says: 11 "I will explore --" 12 DR. JAMES YOUNG: Working rounds -- 13 working rounds. Are you -- 14 MR. MARK SANDLER: "...working rounds." 15 DR. JAMES YOUNG: Yeah. 16 MR. MARK SANDLER: "I will explore. JC 17 and I would attend..." 18 And there's a reference to monitoring of 19 cases and discussion of cases. 20 Were you made aware of what issue is being 21 referred to in that aspect of the memo? 22 DR. JAMES YOUNG: I believe the issue is 23 that -- that the other people who are doing cases over 24 there are not over in the coroner's office, so they -- 25 they wanted a more direct communication.
461 And the solution was to set up a -- a 2 monthly review of the cases that were being done, and by 3 putting people in the same room, they -- the kinds of 4 discussions that were being -- needed to take place would 5 take place. 6 And the -- and those rounds were 7 established. 8 MR. MARK SANDLER: All right. So coming 9 back to the backlog issue, we've heard evidence here from 10 Dr. Cairns that -- that -- at least commencing in 1994, 11 he was aware of a concern about untimeliness on the part 12 of the delivery of reports on -- on the part of Dr. 13 Smith, and -- and that extended through in time, and the 14 Commissioner has seen -- seen a lot of documentation that 15 pertains to that issue. 16 Was the lack of timeliness on the part of 17 Dr. Smith an issue that you were made aware of back in 18 '94 and following? 19 DR. JAMES YOUNG: Yes, of course. 20 MR. MARK SANDLER: And similarly, we've 21 hear from Dr. Cairns that -- that an issue arose as to 22 serious unresponsiveness on Dr. Smith's part to queries 23 being directed from Crowns, police, coroners, Regional 24 Supervising Coroners, to a point later on that one (1) 25 Regional Coroner instructed the coroners not to refer
471 cases to Dr. Smith without informing her. 2 Were you aware of the unresponsiveness 3 issue? 4 DR. JAMES YOUNG: I don't think to the 5 full degree, but I -- certainly, I was aware that at 6 times he was very difficult to reach. 7 MR. MARK SANDLER: And -- 8 DR. JAMES YOUNG: I knew also that the 9 person that seemed to have the most success reaching him 10 and could find him was Dr. Cairns. And I think everyone 11 in the system knew, if you're not hearing from him, then 12 get Dr. Cairns to go after him. 13 A couple of times I phoned him, but he 14 usually responded to my calls fairly quickly, and if I 15 said I needed something I -- I would get it. 16 MR. MARK SANDLER: All right. And then 17 we heard from Dr. Cairns that concerns were raised at 18 various points in time in our narrative about lost or 19 misplaced materials relating to the autopsy work that was 20 being performed by Dr. Smith within the coronial system. 21 Were you made aware of that issue? 22 DR. JAMES YOUNG: I was aware of a lost 23 x-ray in the Amber Case. And I became aware in the days 24 leading to the withdrawal of the charges in the Sharon 25 Case. I became aware of them all because that was one
481 (1) of the issues that I was addressing with the Crown 2 attorney in regards to the -- to the withdrawal of the 3 charges, and whether that was an important feature or not 4 of the withdrawal. 5 So I -- and that was at the time that Dr. 6 Smith stopped doing cases in the office. So I -- those 7 were the two (2) instances where I was aware of issues in 8 regards to either lost or misplaced things. 9 MR. MARK SANDLER: All right. So -- so 10 we've -- we've got identified as -- as issues involving 11 Dr. Smith; lack of timeliness of reports, a serious 12 unresponsiveness to queries from parties in the 13 administration of justice, and concerns about some lost 14 materials. 15 Though -- though as -- as we'll see, you 16 may not have known about all of the instances that have 17 been described in -- in the documents. 18 DR. JAMES YOUNG: Well, I only knew about 19 one (1) prior to taking action, so I -- 20 MR. MARK SANDLER: Okay. 21 DR. JAMES YOUNG: I knew about one (1) in 22 around 1991. That was the only one (1) I knew about. 23 MR. MARK SANDLER: Okay. So, did you 24 ever write to Dr. Smith expressing your concern, upset, 25 about these issues?
491 DR. JAMES YOUNG: I did -- I spoke to Dr. 2 Smith about these issues. I didn't write nor did I 3 record notes afterwards. I certainly raised these issues 4 as part of the meeting of -- I had with him about 5 Nicholas. 6 But -- but on other occasions I did -- I 7 spoke to him about -- not about -- I did not speak to him 8 about lost things, because I didn't have knowledge of 9 lost things. I just -- 10 MR. MARK SANDLER: Well just -- just 11 going back to -- 12 DR. JAMES YOUNG: -- I spoke to him 13 about -- 14 MR. MARK SANDLER: I'm sorry, Dr. Young. 15 Just going back to my question, did you ever write to him 16 in connection with these issues? 17 DR. JAMES YOUNG: No. 18 MR. MARK SANDLER: Okay. And did you 19 ever document in any formal way the discussions that you 20 or others had with him concerning these issues? 21 DR. JAMES YOUNG: No. I was not a big 22 documenter as you know. Almost always when I did 23 something I was then rushed then to the next thing I had 24 to do, and I did -- I'm not -- I don't have a paper trail 25 through government of anything I did, because I didn't
501 have time to write, and I didn't. 2 I'm not a -- I wasn't a recorder of what I 3 did. 4 MR. MARK SANDLER: And we've also heard 5 from Dr. Cairns that although there's some documentary 6 trail of -- of requests being made to Dr. Smith 7 concerning these matters, much of his dialogue with him 8 over these issues was verbal. 9 And again, would that accord with your 10 understanding of how the office was operating under your 11 tenure? 12 DR. JAMES YOUNG: This is, as I said 13 yesterday, is a phenomenally busy office where there's 14 many things going on each and every day. And there -- 15 many of the kinds of issues that we're discussing here 16 weren't totally unique to Dr. Smith, and we -- you know, 17 tardy report writing is the hallmark of -- of 18 pathologists. 19 They're busy doing other things, and they 20 get busy in their own hospitals, and chasing reports is - 21 - and trying to get these things done is very, very 22 normal. Charles Smith was the worst of -- of anyone, but 23 he wasn't unique that he was the only one. 24 So that recording all of these things in 25 the course of managing the office, you're right; it
511 wasn't the normal course of things because there -- there 2 wasn't time to report all of those things. This is -- 3 it's -- it's -- there's a huge volume of stuff. 4 During the -- you know, during the tenure 5 of Charles Smith's time that we're talking about in this 6 Inquiry, somewhere between four hundred (400) and five 7 hundred thousand (500,000) cases were processed by the 8 Office of the Chief Coroner. It's a lot of paper and a 9 lot of problems and a lot of meetings. And we just 10 didn't write notes. 11 MR. MARK SANDLER: Do you see the value, 12 systemically, of several things? 13 First of all, the value of documenting 14 concerns of this nature in letters directed to -- to him? 15 Do you see that, systemically, as a value? 16 DR. JAMES YOUNG: I see it systemically, 17 but you have to also bear in mind, we're not his 18 employer. We're not -- I have an option available to me. 19 I could quit using his services. I don't need 20 documentation to do that. 21 I can simply say, You're not doing cases. 22 I'm not required -- I don't have an employer/employee 23 obligation. I'm not bound by the rules, so I don't have 24 to create a paper trail in order to do that. I simply 25 can reach a decision and do it.
521 Would it be useful? Yes, of course, but 2 it's not necessary in terms of -- of what I do in order 3 to function in the office that I have that kind of a 4 paper trail on -- and we have some two hundred (200) or 5 more pathologists who do work and -- and four hundred 6 (400) coroners. 7 We don't -- we have a file, but we don't - 8 - you know, our relationship's very different. We're not 9 their employer. 10 MR. MARK SANDLER: Well, appreciating 11 that you're not their employer, I mean, I guess I'm 12 asking you systemically, if you and Dr. Cairns were to 13 have left the office on a Friday, was there an 14 institutional history that -- that could enable the next 15 Chief Coroner or Deputy Chief Coroner to pick up from 16 there and -- and know, by way of a documentary trail, 17 what issues had arisen with Dr. Smith over the years? 18 DR. JAMES YOUNG: Yes, because the -- 19 whoever took my place probably would have been there and 20 aware of the same issues with Dr. Smith. Was it in 21 writing? No. 22 I'm not disagreeing with you and I'm not 23 arguing with you, but, you know, all of these things 24 require time and they require -- you know, the office is 25 very small. It has very limited number of professionals
531 in it. And if that's going to be feature in the future 2 and -- and I'm -- I'm all for it -- there has to be 3 recognition in that the office is too small to manage all 4 of these things. 5 It can't do all of these reviews. It 6 can't be writing -- if you're sitting writing paper, 7 you're not doing other things. And, you know, people got 8 to work early and they left very late. And writing paper 9 wasn't a priority because we didn't have time. 10 But if -- if that's the desire in future, 11 that's great. But there has to be a resource, then, put 12 into it. 13 MR. MARK SANDLER: Okay. Now, if we 14 could look at the chronology document that was prepared 15 and I made reference to yesterday. And you should have 16 it up there. 17 Again, we're just going to deal with this 18 time frame -- 19 DR. JAMES YOUNG: This is this document? 20 MR. MARK SANDLER: Yes, it is. And if 21 you'd look at the first page of the document, and I just 22 want to very briefly highlight for you some of the 23 entries during the period that -- that we're dealing with 24 now. 25 And if you'd look at the -- the third
541 entry here which reflects: 2 "During the period December 1993 to 3 January 1994, in connection with the 4 Tiffani case, on December 20th, 1993, 5 Detective Inspector Smith sent an email 6 to Dr. Bechard asking him to intervene 7 and see that Dr. Smith's report would 8 be forthcoming." 9 There's a note made by Smith -- this is 10 Detective Inspector Smith -- that Dr. Bechard called Dr. 11 Smith that day: 12 "On January the 5th, 1994, Detective 13 Inspector Smith obtained a subpoena 14 ordering Dr. Smith to appear on January 15 19th, 1994." 16 First of all, were you aware of that issue 17 arising in the Tiffani case? 18 DR. JAMES YOUNG: I have no specific 19 recollection of the Tiffani case, so no. 20 MR. MARK SANDLER: All right. And, apart 21 from whether you're aware of the specifics in the Tiffani 22 case, would it be unusual, in your experience, for police 23 to be driven to obtain a subpoena in order to -- to cause 24 Dr. Smith to appear to produce his report? 25 DR. JAMES YOUNG: I would hope it would
551 be unnecessary. It would be unusual as well. 2 MR. MARK SANDLER: All right. Well, did 3 that come to your attention; that the situation had 4 become so acute that the -- that the police were driven 5 to subpoenaing Dr. Smith to -- to disgorge the report? 6 DR. JAMES YOUNG: I don't -- I don't 7 recall knowing that, no. 8 MR. MARK SANDLER: Should that have come 9 to your attention? 10 DR. JAMES YOUNG: I don't know who else 11 knew. I don't know whether Dr. Bechard knew or didn't 12 know that that was done. He may or he may not know. 13 Again, you know, the police are dealing with a -- with 14 the pathologist. 15 They may or may not being dealing at 16 different times with the Regional Coroner. They may ask 17 for their help, but that doesn't mean they necessarily 18 say to them -- phone them back and say, I just subpoenaed 19 him. 20 They may take that action on their own, 21 and I don't know. I just simply wouldn't know. 22 MR. MARK SANDLER: Well, I guess I'm 23 asking you apart from whether Dr. Bechard knew or didn't 24 know. 25 Would you expect that the Chief Coroner's
561 Office should be made aware of the fact that the 2 situation is so acute that police officers are driven to 3 obtaining a subpoena to disgorge a report from a forensic 4 pathologist? 5 DR. JAMES YOUNG: It would be useful 6 information to know. 7 MR. MARK SANDLER: Of course. And then 8 you go to March to May 1994 in the Dustin Case. We see 9 that Dr. Nag's cross-examination during the preliminary 10 inquiry was postponed, because Dr. Nag wanted an 11 opportunity to review materials relied upon by Dr. Smith; 12 and I can tell you, because they -- they weren't yet 13 available. 14 In March '94, Dr. Bechard spoke with Dr. 15 Smith who indicated that he had found the slides. 16 Several attempts were made by Ms. Walsh who was the Crown 17 attorney, and Dr. Nag to obtain the slides, and Dr. Smith 18 sent the materials to Dr. Nag in May 1994. 19 So stopping there for a moment, were you 20 made aware of the specific delays, including the delay of 21 a -- of a preliminary inquiry arising in the Dustin Case? 22 DR. JAMES YOUNG: On the matter of 23 delays, I think all I can say is I was aware that his 24 reports were -- were late, and he was slow in -- in 25 reacting, but I couldn't tell you any specific case --
571 MR. MARK SANDLER: Fair enough. 2 DR. JAMES YOUNG: None -- none that are 3 sort of in my mind that I can say, I knew about that 4 case. I -- I was aware of the general concern. The 5 issue around his tardiness came up at regional meetings 6 and there would be grumbling about it, and we would try 7 to get him moving on things. 8 But I can't recall specifics. 9 MR. MARK SANDLER: All right. And -- and 10 apart from the specifics in the Dustin Case, and as I 11 asked you earlier on -- on Tiffani, were you made aware 12 generally that the situation had become so acute that 13 preliminary hearing dates or cross-examinations were 14 being postponed as a result of Dr. Smith? 15 DR. JAMES YOUNG: I just knew there was a 16 lot of problem getting reports out of him. I -- I'm not 17 sure that I -- I knew that dates were being postponed 18 because of it. 19 MR. MARK SANDLER: All right. Then we 20 see between June 1994 and September '94 in the Tiffani 21 Case, Ms. Walsh, the Crown attorney, asks Dr. Smith to 22 forward materials relied upon in his report, to the 23 defence pathologist. 24 Ms. Walsh was advised that Dr. Smith had 25 lost the slides but found them again. And I take from
581 your earlier answer, you weren't aware of this specific 2 instance of -- of lost or misplaced slides for the 3 reasons you've already indicated? 4 DR. JAMES YOUNG: I only knew about the - 5 - the x-ray, in -- in the Amber Case. 6 MR. MARK SANDLER: And again, am I 7 correct that this kind of information is information that 8 you would have liked to have within the Offices of the 9 Chief Coroner? 10 DR. JAMES YOUNG: Well, I mean, I think 11 in this instance he -- you know, the word lost is -- he 12 didn't lose them, he misplaced them and found them again. 13 If they were lost, they would be lost. They weren't 14 lost. They were misplaced and found again, so -- you 15 know, I would take some issue with the word lost. 16 MR. MARK SANDLER: All right. So the 17 answer to my question is, is it's not information that -- 18 that you would expect to have -- 19 DR. JAMES YOUNG: Well, I mean, it's 20 useful -- 21 MR. MARK SANDLER: -- communicated? 22 DR. JAMES YOUNG: -- I'm not -- I'm not 23 diminishing it as useful information, but it's not -- 24 it's not a situation where it was lost and never found 25 again. It's a situation where he couldn't find it and, -
591 - and it took time to find it again. 2 I think it's a different level of concern 3 then saying, I've -- you know, it's gone forever and it - 4 - we can't find it, and it'll never play any role in the 5 case. 6 MR. MARK SANDLER: Fair enough. On the 7 next page we have on Tiffani, April to August 1994: 8 "Ms. Walsh, the Crown attorney, made 9 several requests for a written opinion 10 from Dr. Smith prior to the preliminary 11 inquiry. When she finally got in touch 12 with Dr. Smith on the phone, he 13 indicated to her that he had consulted 14 the Coroners' Council, and was told he 15 was not under any obligation to provide 16 an opinion in writing other then the 17 post-mortem report. Dr. Smith 18 eventually sent a short one (1) page 19 letter containing his opinion." 20 Now stopping there for a moment. Were 21 those facts made aware -- were you made aware of those 22 facts in 1994? 23 DR. JAMES YOUNG: I have no recollection 24 of -- of knowing that, no. 25 MR. MARK SANDLER: All right.
601 DR. JAMES YOUNG: That would be a 2 discussion that Dr. Smith had with -- I assume probably 3 Mr. Wolski, but I'm not sure. 4 MR. MARK SANDLER: All right. Leave 5 aside your knowledge or lack of knowledge concerning 6 those specifics. We've heard some evidence here that -- 7 that the post-mortem report that was done on the Tiffani 8 case -- and we'll leave aside the merits of the opinions 9 that are expressed, but it didn't resolve for the Crown 10 attorney a number of -- of issues surrounding the case. 11 In other words, it was relatively bare 12 bones in keeping with what we've heard of how some of the 13 reports of post-mortem examination were done at the time. 14 In your -- from your perspective as a 15 Chief Coroner, is it a valid response to a Crown 16 attorney, who wants more information about what that 17 report means and what impact it has on the case that 18 she's prosecuting, to say that on the advice on Coroners' 19 Council there's no obligation to provide an opinion in 20 writing to the -- to the Crown attorney? 21 DR. JAMES YOUNG: Well, I don't think 22 it's -- I don't think it's a good response. I think it's 23 the kind of response that somebody who runs late and 24 hates writing reports would -- would use that as a reason 25 to say, I don't have to do it, but I don't think it's a -
611 - I mean, clearly the work's being done on behalf of the 2 Crown. 3 It's there as part of the case. It's 4 important that that communication takes place whether 5 verbally or in writing. And generally, the rule of the 6 thumb is it's -- it's much better done in writing. 7 MR. MARK SANDLER: All right. 8 DR. JAMES YOUNG: So I -- I would support 9 that the reports should be written. 10 MR. MARK SANDLER: And would you have 11 liked to have been made aware of -- of that issue before 12 Dr. Smith expressed the view to the Crown that there was 13 no obligation to provide an opinion in writing, based 14 upon the Coroners' Council's advice? 15 DR. JAMES YOUNG: Well, yes and no. I 16 mean, yes, but -- but the office isn't -- didn't or 17 doesn't -- didn't run in a way that every time someone 18 had a problem they came, and they reported every problem 19 to me. The -- you know, I wasn't managing day-by-day 20 cases. 21 I was really not that involved. I had 22 other duties as the Chief Coroner and then other duties 23 within government. If there was an unresolvable problem 24 -- if there's an issue I needed to know, I would expect 25 people to bring it to my attention.
621 But if they're working along and trying to 2 resolve issues, I didn't manage in a way, and I didn't -- 3 that I -- that I expected every time there was a -- 4 something happening that people would come -- this to my 5 mind was a chronic problem with Dr. Smith about lateness 6 and tardiness and pulling reports out of him. 7 I was aware that there was this problem. 8 I was aware that they were working on it with him. I 9 told -- I talked to him about it sort of verbally from 10 time to time and said to him, Come on, Charles, get going 11 on the reports, you know how important this is -- this 12 sort of thing. 13 But -- but I wouldn't expect every time 14 they had problem that they -- that they would come to me 15 because they would -- you know, that wasn't the way 16 things worked. 17 MR. MARK SANDLER: Okay. And then 18 November 7th, 1994, in the Dustin case, we see that the 19 Crown, Lee Burgess, writes a memorandum to the file 20 indicating he's spoken with another Crown, who advised 21 that there are a number of transcripts of evidence of Dr. 22 Smith which show inconsistencies in his evidence. 23 And the transcripts were starting to be 24 circulated amongst defence lawyers. Now, as of 1994, 25 were you made aware of the fact, if this is accurate,
631 that -- that were transcripts of evidence of Dr. Smith 2 that purportedly showed inconsistencies in his evidence 3 that were being circulated amongst defence counsel? 4 DR. JAMES YOUNG: No. No, I -- this is - 5 - today is the first time I've seen that. 6 MR. MARK SANDLER: And is that something 7 that you would have liked to know as a Chief Coroner? 8 DR. JAMES YOUNG: Well, it certainly 9 gives you worry -- you know, knowing that in criminal 10 trials that transcripts start to follow experts, that's 11 something I would want to be aware of, I think. 12 MR. MARK SANDLER: And on a similar vein 13 -- and it's not here in the chart, but we actually see 14 from the Amber overview report which I won't take you to, 15 that in another case of a -- of a young offender, RD, Dr. 16 Smith was cross-examined in 1994 based upon what he had 17 said and what had been found by the judge in the -- in 18 the Amber case. 19 And again, for the reasons you've already 20 communicated, you were unaware of the contents of Justice 21 Dunn's judgment, but again, would that be something you 22 would have liked to know that Dr. Smith was being cross- 23 examined on the content of Justice Dunn's judgment in 24 other cases in which he was testifying for the 25 prosecution?
641 DR. JAMES YOUNG: Certainly, any time 2 you've got an expert who's starting to -- for want of a 3 better expression, gather baggage and -- and cases are 4 starting to stick and they're -- they're coming up 5 repeatedly in other cases, is that important to know? 6 Yes, because that may have an affect on 7 what you assign them and what they do and -- not just Dr. 8 Smith, but any other. 9 Will there be a certain amount of -- of 10 that that goes on in the course? Of course, it goes on 11 every day. But it's an issue that you want to at least 12 look at and think about. 13 MR. MARK SANDLER: All right. And then 14 we see -- back to the chronology -- on February the 10th 15 '95 to May 12th, 1995 in the Tiffani case: 16 "Mr. Burgess spoke with Dr. Smith on 17 the phone prior to the preliminary 18 inquiry. Mr. Burgess felt that Dr. 19 Smith was severely backtracking from 20 the opinion originally provided to the 21 Crown and police about whether 22 Tiffani's death was non-accidental. 23 During his testimony on March 1, 1995, 24 Dr. Smith changed his opinion from the 25 original opinion he'd provided. The
651 original opinion formed the basis for 2 the charge of manslaughter. Ms. Walsh 3 was of the view that Dr. Smith's 4 testimony resulted in the Crown looking 5 like a total fool on this case at the 6 end of the day." 7 Now, again, the Crown may -- may have 8 correctly or incorrectly perceived the change of 9 testimony on Dr. Smith's part. I'm not going to ask you 10 to comment upon whether the Crown does or doesn't have it 11 right. 12 DR. JAMES YOUNG: Mm-hm. 13 MR. MARK SANDLER: Did the concerns being 14 expressed by the Crown in 1995 about Dr. Smith severely 15 backtracking from an opinion earlier expressed, or 16 changing his opinion at a preliminary inquiry as opposed 17 to an original opinion, come to your attention? 18 DR. JAMES YOUNG: Well, I'm not certain 19 because -- I don't think so, or I have no memory of it. 20 But this is the -- this is the Crown attorney that in a 21 note later talks about, perhaps, addressing me with this 22 concern. 23 I -- I have no recollection of that. It 24 certainly didn't stick in my mind. I know that Dr. 25 Cairns, in evidence, talked about this. And I believe,
661 probably, she has us mixed up, which is not unusual for 2 people to mix us up and mix our roles up and two Jims in 3 -- in the same office. 4 But I -- I have no -- I don't remember 5 knowing this, but there is a note in the -- that you've 6 shown me that indicates Ms. Walsh may have talked to me 7 about it. But I have -- I have no personal recollection 8 of this issue. 9 MR. MARK SANDLER: All right. And just 10 going to the next entry, in -- in fairness, because it -- 11 it's the very entry that you've anticipated here. 12 DR. JAMES YOUNG: Oh, okay. 13 MR. MARK SANDLER: And it has to do with 14 sometime between May 1995 and December 2000. And -- and 15 I should tell you that Ms. Walsh has passed away, so -- 16 DR. JAMES YOUNG: I'm aware of that. 17 MR. MARK SANDLER: And in the Tiffani 18 case, she did a memorandum that reflected that at an 19 Ontario Crown Attorneys' Association conference, Dr. 20 Young gave a presentation on baby deaths and the creation 21 of a team to review those cases. 22 Just stopping there for a moment, I 23 actually saw from your curriculum vitae that at various 24 occasions, including May of 1995 and -- and following, 25 you frequently did speak at Ontario Crown Attorney
671 Association conferences. Am I right? 2 DR. JAMES YOUNG: Virtually every year. 3 That's right. 4 MR. MARK SANDLER: All right. And 5 actually, in May of 1995, shortly after the guilty plea 6 in the Tiffani case, you did speak at an Ontario Crown 7 Attorneys' conference, if I remember correctly, on -- on 8 sudden baby deaths. Do you remember that? 9 DR. JAMES YOUNG: No. 10 MR. MARK SANDLER: Okay. 11 DR. JAMES YOUNG: I -- I -- I've done at 12 least two hundred and fifty (250) speeches in the last 13 three (3) years. 14 MR. MARK SANDLER: Fair enough, and I'm 15 not going to take you to them all. 16 DR. JAMES YOUNG: I -- I remember many of 17 them, but I don't remember -- if it says I did it, I did 18 it. But I don't -- I don't know. I've probably done 19 well over a thousand (1,000) speeches. 20 MR. MARK SANDLER: Fair enough. 21 DR. JAMES YOUNG: I -- I don't remember. 22 If I did it, what it would have been was very high level. 23 We're looking at these cases. We've organized 24 committees. I may even have done it with Dr. Cairns, 25 'cause normally I didn't talk about pediatric cases --
681 MR. MARK SANDLER: Okay. 2 DR. JAMES YOUNG: -- on my own. So he 3 may well have -- we often did -- did conferences 4 together, so I -- I may well have been there. I may well 5 have -- if it says I did it, I did it. But -- 6 MR. MARK SANDLER: Okay. 7 DR. JAMES YOUNG: -- I have no 8 independent recollection. 9 MR. MARK SANDLER: All right. And then 10 just going on in the entry: 11 "In an email in 2000, Ms. Walsh 12 indicated that after she learned Dr. 13 Smith would be on that team, Ms. Walsh 14 spoke privately to Dr. Young expressing 15 her concerns about Dr. Smith's conduct 16 in Tiffani's case. He said that he was 17 planning to have a meeting about 18 Tiffani's case, but Ms. Walsh never 19 heard anything about it." 20 And, in fairness, I've also included here 21 in the chronology that in a subsequent email that she 22 wrote in 2003 she indicated she couldn't be sure which 23 member of the Coroner's Office she spoke to at the Crown 24 Attorney's Conference. 25 So, with the benefit of that information -
691 - I won't put it any higher than that -- than this, you 2 don't have an independent recollection now of speaking to 3 Ms. Walsh. We'll start there. Am I right? 4 DR. JAMES YOUNG: That's correct. 5 MR. MARK SANDLER: Is it possible that 6 Ms. Walsh communicated this information to you at an 7 Ontario Crown Attorneys Association conference at which 8 you spoke on baby deaths? 9 DR. JAMES YOUNG: It's possible, but I 10 don't believe it to be the case. 11 MR. MARK SANDLER: All right. Now, let 12 me ask you this: We've talked about untimeliness, Dr. 13 Smith (sic). We've talked about unresponsiveness. We've 14 talked about the very limited circumstance in which you 15 were aware of a -- of a lost item. 16 Were you made aware -- it's one (1) of the 17 reasons I've been reading some of these items to you -- 18 of concerns about the substantive quality of what Dr. 19 Smith was saying? 20 DR. JAMES YOUNG: No, the issues I was 21 aware of revolved around -- around timeliness and -- and, 22 to a lesser degree, availability to -- you know, and I 23 viewed the availability issue as a -- an offshoot of the 24 timeliness because saying one (1) of the best ways to -- 25 if you've got timely problems, is just to not respond --
701 you know, the -- so I viewed the two (2) as -- as being 2 of -- of parallel thing, but I wasn't aware of the issues 3 around quality of his evidence. 4 MR. MARK SANDLER: All right. When was 5 it -- or what was it that first caused you to hear about 6 an issue concerning the merits of Dr. Smith's opinion as 7 opposed to timeliness, unresponsiveness, or -- or lost 8 material? 9 DR. JAMES YOUNG: The Nicholas case. 10 MR. MARK SANDLER: Okay. Now, you'll see 11 on the next entry and I want to ask you about it. In 12 January of 1996, in the Joshua case, prior to the 13 preliminary inquiry, Dr. Smith told Ms. Walsh that a non- 14 accidental cause of death was more likely or probable. 15 During the preliminary inquiry, he 16 testified that he could not say beyond a reasonable doubt 17 that Joshua's death was non-accidental. 18 And again, did any concerns on the part of 19 the Crown attorney concerning his evidence in the Joshua 20 case come to your attention back in January of 1996? 21 DR. JAMES YOUNG: No, I'm not familiar 22 with the case at all. 23 MR. MARK SANDLER: Okay. Now, we've been 24 -- I've been asking you about the merits of the opinion. 25 I'm going to stop there in the chronology for now and --
711 and return to it when we take up events in 1997. I -- 2 again, I'm trying to proceed chronologically. 3 But just while we're here on the topic, I 4 want to advise you that I anticipate that Dr. Uzans' 5 recollection -- and you know Dr. Uzans, do you? 6 DR. JAMES YOUNG: Yes, he was the 7 Regional Coroner. 8 MR. MARK SANDLER: All right. That his 9 recollection is that you raised a caution that at times 10 you felt that Dr. Smith could be unreliable in terms of 11 saying the same thing on the witness stand as he said 12 prior to trial. 13 And Dr. Uzans' recollection was that you 14 made the comment after 1995 and before his retirement in 15 1998 and could be no more specific than that. Do you 16 have any comment on that recollection? 17 DR. JAMES YOUNG: I certainly have -- I 18 can't -- I can't question it. It -- it doesn't stick 19 with me. If -- if it was made, it was likely made during 20 a Regional Coroner's meeting. Whether I -- I -- you 21 know, I can't -- it -- it's -- was not one (1) of the 22 factors that I was using in judging what to do, so I'm 23 not aware of making that -- I don't remember making it. 24 And it certainly wasn't a factor that I 25 was using in my assessment of what to do about Dr. Smith.
721 MR. MARK SANDLER: All right. If we can 2 go to 1995, other events than those that -- that formed 3 part of the twenty (20) cases that -- that we've been 4 dealing with here. And if I can take you to PFP057584. 5 And this is in your document that's called the Coroner's 6 Investigative Manual. 7 COMMISSIONER STEPHEN GOUDGE: There 8 should be a binder that is -- 9 MR. MARK SANDLER: There should be a 10 separate binder that has the manual in it. 11 COMMISSIONER STEPHEN GOUDGE: A black 12 binder. 13 DR. JAMES YOUNG: Yes, okay. Yeah. 14 15 CONTINUED BY MR. MARK SANDLER: 16 MR. MARK SANDLER: And if you can go to 17 page 349 of the document. And I'm going to ask you very 18 briefly about this because it has been dealt with fairly 19 extensively in the evidence. And -- and I'm going to 20 ask, really, just one (1) -- one (1) or two (2) questions 21 arising out of it. 22 This is the memorandum Number 631 dated 23 April 10, 1995, to all coroners, pathologists, and chiefs 24 of police in Ontario, re: the new protocol to be used in 25 the investigation of the sudden and unexpected death of
731 any child under two (2) years of age. 2 And as I'm sure it has not been lost on 3 you, one (1) of the issues that -- that has been 4 discussed here is -- is the expression, that's used in 5 the manual, "thinking dirty". 6 DR. JAMES YOUNG: Mm-hm. 7 MR. MARK SANDLER: First of all, who was 8 responsible for the use of the phrase and what, in your 9 view, did it refer to? 10 DR. JAMES YOUNG: I doubt anyone would 11 want to take ownership for it now, but I can tell you I 12 won't take ownership. 13 I don't know with certainty. I mean, I 14 suppose the person who used it the most often was Dr. 15 Cairns, but I really don't know -- I don't know where it 16 came from with any certainty. What was happening at that 17 point in time -- 18 MR. MARK SANDLER: Just -- just stopping 19 there for a moment, because -- because I know you 20 wouldn't want to leave this mis-impression. It certainly 21 was -- was a phrase that you adopted and used in 22 presentations yourself -- 23 DR. JAMES YOUNG: Occasionally. I had a 24 'think dirty' side, yes. 25 MR. MARK SANDLER: Okay. And so I just
741 interrupted you. So you were going to provide the 2 Commissioner with the context in which the -- the phrase 3 was used I take it? 4 DR. JAMES YOUNG: Well this -- this was 5 the period worldwide when there was concern that -- that 6 pediatric deaths weren't being properly investigated. 7 And we were very aware and there were 8 discussions, again, at any forensic meeting about the 9 difficulties in investigating pediatric deaths, and the 10 fact that they -- children died of different things than 11 adults did; and the very difficult job of sorting out 12 metabolic disorders, SIDS, cases of Shaken Baby, cases of 13 subtle -- suffocation, of subtle child abuse, and dating 14 of injuries, you know, to make sure that what was 15 attributed to the death was -- was relevant. 16 So they -- there was an awareness that the 17 level of investigation of what the -- things that were 18 important in a pediatric death are very different then 19 the things that are important in a -- in a adult death 20 and that the signs and symptoms are very different. 21 But in order to do that, then you have to 22 make the -- again, starting where do the problems mostly 23 occur? The problems occur at the front end of an 24 investigation. 25 So the idea and the object was then that
751 the investigating coroners and the police that are 2 involved in these cases need to understand they can't 3 walk into a situation, look at a scene -- first of all 4 they need to go to the scene, which wasn't always being 5 done, and they need to look at the scene with -- with a 6 more careful observation then -- then just simply 7 deciding that something -- well this looks like 8 everything's fine, and it's a nice family, and therefore 9 we'll -- we'll assume that everything's fine. 10 Not that you're not going to end up back 11 at that result, but what you have to do is go through the 12 various possibilities in your mind and at the end of it 13 you want to be able to conclude whether or not, in fact, 14 this represents a suicide, an accident, a homicide, a 15 natural or an undetermined death. 16 But -- but don't fix on one (1), go 17 through the list and try to in fact do it in an 18 inquisitive na -- way. And that's really what it was 19 meant to -- to do; is just simply awaken people to the 20 fact that different and -- kinds of information and a 21 different mind set needed to be addressed. 22 It was not -- absolutely not, and it was 23 never contemplated or discussed at any meeting I ever 24 attended where the phrase was used, to mean that make 25 cases -- make cases criminal matters when they aren't.
761 That was not the intention. It was meant to awaken the - 2 - the need to think in broader terms. 3 MR. MARK SANDLER: All right. And -- 4 DR. JAMES YOUNG: In retrospect it's 5 probably not the greatest phrase, but absolute -- until 6 this Inquiry, no one ever raised it with us and said, 7 It's a bad phrase. You know, it's the passage of time 8 and the events here have cast a different light on it 9 then was ever thought of at the time. 10 MR. MARK SANDLER: All right. So I -- I 11 take it as implicit if not explicit on what you've just 12 said, is that you recognize that -- that with the benefit 13 of -- of what we've learned since, it might be advisable 14 for the Chief Coroner's Office to -- to develop another 15 phrase to communicate the same sentiment? 16 DR. JAMES YOUNG: Sure, sure. And that's 17 how -- that's why we're always changing things and re -- 18 you know, there's a lot of these memos that are reworked 19 memos from the past, because as we get through and have 20 experience, we take those experiences and change things. 21 MR. MARK SANDLER: Now we're in 1995 22 right now and we've seen documentary materials, Dr. 23 Young, that suggest that from July 1995 and extending 24 into at least 1997, the Hospital for Sick Children was 25 documenting certain alleged failures to meet departmental
771 standards within the hospital by Dr. Smith: Incomplete 2 surgical reports, diagnostic discrepancies and 3 curtailment of Dr. Smith's responsibilities in surgical 4 pathology until he provided evidence of successful 5 completion of continuing education courses to improve his 6 skills in surgical pathology. 7 There's also a document that suggested 8 that he wouldn't be doing surgical pathology on a regular 9 rotation and that his salary would be reduced for the 10 year 1997 by twenty thousand dollars ($20,000). 11 Were you aware of any of that? 12 DR. JAMES YOUNG: No. 13 MR. MARK SANDLER: Should you have been 14 made aware of that? 15 DR. JAMES YOUNG: I would argue that I 16 should -- if -- particularly if -- if there are issues 17 around the quality of his medical judgment. That would - 18 - I would not have been surprised, and I may have been 19 aware that his reports weren't timely. I think I 20 probably was. 21 If -- if you're not writing coroner's 22 reports in a timely manner, you're probably not writing 23 anything. You know, I -- I would -- I wouldn't be 24 surprised by that. I may have been aware of that, but 25 that would the extent of it.
781 But would the other information be useful 2 information and important? Yes, I would say so. I -- an 3 argument could be made of that -- was a ma -- an issue 4 between him and his employer, and I'm not his employer. 5 Even in regards -- but it would affect my judgment in 6 terms of him doing work for us. 7 MR. MARK SANDLER: All right. Now, if we 8 could move ahead to Volume II -- 9 COMMISSIONER STEPHEN GOUDGE: Just before 10 you put this and 631 away, Mr. Sandler. I asked Dr. 11 Cairns this and I would like to ask you as well. 12 When this memo was circulated, were you 13 aware of the phrase being and this approach, "think 14 dirty" being used in other jurisdictions or anywhere else 15 in the world with pediatric death investigations? 16 DR. JAMES YOUNG: Leaving aside the -- 17 the word in which I -- I can't honestly answer for you 18 whether it was or not, the -- the approach to pediatric 19 deaths -- yes, this was the approach that was being 20 advocated worldwide. In fact, this particular memo was 21 widely circulated and was widely either copied or used as 22 a template in many other jurisdictions in the world. 23 We are one (1) of the only jurisdictions 24 that has this kind of documentation, and memos, and 25 instruction to coroners. In England, for example, there
791 is no central office, there is no -- 2 COMMISSIONER STEPHEN GOUDGE: I guess 3 what I was getting at was did you go first with -- 4 DR. JAMES YOUNG: Yes, most of -- most of 5 the information in here, we would have been the first 6 people anywhere -- and we would often be invited to -- to 7 -- not only to share it, but to go on lecture on behalf 8 of these -- these issues. 9 We were leading edge in trying to document 10 and get consistency in these areas. And so that phrase 11 would go. Whether others adopted it or not, I -- I ho -- 12 I couldn't tell you. 13 COMMISSIONER STEPHEN GOUDGE: And it was 14 not something you adopted from elsewhere? It was 15 something you founded and then was borrowed elsewhere? 16 DR. JAMES YOUNG: I -- I couldn't -- I 17 don't know. It's a phrase that suddenly appeared, and we 18 used it. 19 COMMISSIONER STEPHEN GOUDGE: It is more 20 than a phrase; it is a philosophy. 21 DR. JAMES YOUNG: Yes, well, the 22 philosophy, without calling it that, was being adopted 23 worldwide. I mean, the -- the need to re-examine 24 pediatric cases and to be very -- much more careful to 25 recognize the difference between kids and adult deaths
801 was being recognized worldwide around that time. 2 If you went to forensic meetings that was 3 the discussion that was going on. The -- the 4 formalization of a protocol and the institutionalizing of 5 trying to get consistency in the approach to these cases, 6 we were leading edge, at that point in time. 7 COMMISSIONER STEPHEN GOUDGE: But it was 8 also a concern that there were abuse cases going 9 undetected? 10 DR. JAMES YOUNG: Absolutely, absolutely. 11 And a recognition, though -- I must counter that and say, 12 as well, a recognition that -- that we had to sort out 13 the metabolic, for example, from the abuse that -- that 14 there were both sides of the coin. 15 It wasn't simply a dedication; we got to 16 find more -- more negligence and abuse. We ha -- it was 17 also a case we need to sort out these cases properly, and 18 we have to recognize that both exist in kids. 19 COMMISSIONER STEPHEN GOUDGE: Thank you. 20 21 CONTINUED BY MR. MARK SANDLER: 22 MR. MARK SANDLER: All right. If you'd 23 go to Volume II of the materials, please -- black binder 24 at Tab -- Tab 1. And this is a memorandum dated December 25 the 10th of 1998, PFP004181.
811 (BRIEF PAUSE) 2 3 MR. MARK SANDLER: And this is a 4 memorandum to you dated December 10th, 1998 by Dr. 5 Chiasson, and it's titled "Revisiting the Pediatric 6 Forensic Pathology Unit." And he reflects that on March 7 31st of that same year, in another meeting with Drs. 8 Becker, Smith and Cairns, he put forward specific 9 objectives aimed at improving the service that was being 10 provided by the Pediatric Forensic Pathology Unit. 11 He was suggesting a triage system be 12 instituted to ensure that autopsies on all homicides and 13 criminally suspicious cases would be performed by either 14 Dr. Smith or Dr. Taylor; that Dr. Smith regularly 15 participate in daily case rounds at the Coroner's Office; 16 that the hospital provide Dr. Smith with an 17 administrative assistant; that there will be a 18 significant improvement in the turn-around time for 19 completion of reports of post-mortem examination. 20 And he's -- skipping the next paragraph, 21 he says: 22 "It's now over six (6) months since 23 that meeting. In my opinion, there's 24 been very little real progress made in 25 improving the service provided to the
821 Coroner's Office by this Unit. In 2 particular, no administrative assistant 3 has been hired for Dr. Smith. Very 4 recently, some additional temporary 5 secretarial help was provided. And, 6 most importantly, the turn-around times 7 for reports has apparently increased, 8 not decreased, since the Spring. The 9 slow turn-around time for finalizing 10 reports is particularly distressing. 11 The Regional Coroners, as a group, are 12 clearly disgruntled about this 13 situation since they're often left in 14 the unenviable situation of trying to 15 appease those anxiously awaiting 16 release of the report." 17 And then he encloses recent correspondence 18 to Dr. Smith which is illustrative: 19 "As of today, I still have not received 20 any indication as to when these reports 21 will be completed. In my view, the 22 Pediatric Forensic Pathology Unit is 23 not fulfilling its mandate to provide a 24 high quality forensic pathology service 25 to the Coroner's Office, despite our
831 office's attempt to provide guidance 2 and direction. Furthermore, I do not 3 believe that the problems of the Unit 4 can be remedied, given the current 5 arrangement we have with the Hospital 6 for Sick Children." 7 So then, on the next page, as part of his 8 re-visioning, he suggests a framework where: 9 "The Unit remains a joint collaborative 10 venture between the Chief Coroner's 11 Office and the Hospital for Sick 12 Children, but be physically relocated 13 to the Office of the Chief Coroner; 14 that the Director report to the Chief 15 Forensic Pathologist; that the Director 16 be committed to a minimum 50 percent 17 time commitment to the Unit; and that 18 the Hospital for Sick Children continue 19 to provide consultative, professional 20 support for the Unit." 21 And under "Administrative Issues," he 22 reflects: 23 "The annual grant to the Hospital for 24 Sick Children to be reviewed and re- 25 negotiated in light of the relocation
841 of the Unit and redistribution of 2 support services." 3 And under "Conclusion" at page 3 he makes 4 the case for restructuring the Unit along those lines, 5 and says: 6 "At the same time, I see no reason why 7 our office and the Hospital for Sick 8 Children cannot continue to mutually 9 benefit from a close collaborative 10 relationship within the proposed 11 framework." 12 Did you have discussions with Dr. Chiasson 13 and others about the re-visioning that is described in 14 the memorandum? 15 DR. JAMES YOUNG: Yes. 16 MR. MARK SANDLER: And -- and could you 17 briefly outline for the Commissioner where those 18 discussions went? 19 DR. JAMES YOUNG: Sure. I certainly -- I 20 -- you know, Dr. Chiasson's job is -- is to manage the 21 forensic pathology. I -- so, if he comes to me and he 22 says, These are problems, and, certainly, some of them I 23 have no difficulty understanding that they are; then 24 they're problems and they need to be addressed. 25 My -- as for the solution, I think we
851 embarked on a somewhat different solution for reasons 2 that -- that I explained to Dr. Chiasson, and we worked 3 our way through it in a different manner. 4 To my mind, the -- I -- I was not in 5 favour, at this point in time, of simply abandoning and 6 moving the -- the Unit from Sick Kids over to -- to the 7 Office of the Chief Coroner for -- for a number of 8 reasons. 9 Part of the visioning initially in the 10 whole Unit was that it be -- it be there to produce 11 quality pathology reports; that it be there to allow 12 residents to go through and teach, and that it be there 13 to provide research as well. 14 What we needed from Sick Kids was -- was 15 we needed their lab -- we needed their -- their 16 pathologists, but we also needed their laboratories, the 17 -- access to all of the testing that we had. We needed 18 their specialized x-ray equipment, which we didn't have 19 at the Office of the Chief Coroner. In fact, we had a 20 broken down thirty (30) year old x-ray machine, and -- at 21 the time, and not the money to buy a new one. We needed 22 the radiology consultations; the neuropathology 23 consultations; all of the things that were available at 24 Sick Kids. 25 It had taken a lot of work to get the
861 grant at Sick Children's, and it -- we were building a 2 relationship that was a matter of some pride to Sick 3 Kids, and to the Office. And it -- and it helped us 4 reestablish our -- our contact with the University, which 5 is -- essentially had -- had disappeared at the end of 6 Dr. Hillsdon Smith's tenure. He was paying no attention 7 to the University and the University was paying no 8 attention to us and that, for teaching and continuity 9 purposes, needed to be reestablished. 10 So that Unit was an important part of -- 11 of doing that and the funding of it has taken a great 12 deal of work. And I believed it needed fixing, but I 13 didn't want to abandon the Unit. 14 Abandoning the Unit to me, would have 15 created a whole series of problems. Number 1 would have 16 been funding. 17 I cannot -- and the way governments work, 18 sudden -- suddenly take the money from the Unit, 19 renegotiate it, and drop the remaining money into my 20 budget. That isn't the way governments work. I would 21 have renegotiated, lost some of the money, and I would 22 not have retained the money in my budget in all 23 likelihood to -- to move the services over to the Office 24 of the Chief Coroner, and have it done there. 25 I simply would have put more load on the
871 building, more load on the staff without the resources to 2 do it. 3 I would have, in my opinion, have lost a 4 good deal of goodwill with the Hospital for Sick Children 5 and I would have -- that -- the loss of that goodwill 6 would have meant that -- that in fact, I didn't know 7 whether or not we -- we could continue to count on the -- 8 on the services and on the cooperation of the Hospital 9 for Sick Children, and the kind of consultation and lab 10 that we, in fact, had available to us. 11 So my view, and my encouragement to Dr. 12 Chiasson was, lets fix it within the Hospital for Sick 13 Children, because that's -- that to my mind -- we fought 14 hard to get this far, lets -- I'm not saying it's 15 perfect, but lets go and fix it. And -- and that's what 16 we set about doing -- 17 MR. MARK SANDLER: And -- 18 DR. JAMES YOUNG: -- or trying to do. 19 MR. MARK SANDLER: -- and was it ever 20 fixed? 21 DR. JAMES YOUNG: I think it was 22 improved, and Dr. Chiasson, certainly later, indicated to 23 me that things were improving. 24 I think it's -- it's -- you'd have to ask 25 him what it's like now. I think it's -- I mean, he's now
881 the Director, so he would have a better idea than I. But 2 I suspect that it's better now than it was then. So yes, 3 I think it's improving, but I'm -- I'm not in -- involved 4 obviously day-to-day now, so I can't answer that 5 entirely. 6 MR. MARK SANDLER: I guess what I was 7 asking you, not whether -- whether it's -- it's improved 8 now that Dr. Chiasson is the Director of the Unit, but 9 during the period that Dr. Smith was the Director of the 10 Unit, did the concerns that Dr. Chiasson expressed in the 11 Revisioning Order, were -- were those concerns elevated 12 as a result of anything that the Chief Coroner's Office 13 did? 14 DR. JAMES YOUNG: Well, so -- some of 15 them were. The -- I mean, you'll note at this point in 16 time that Dr. Chiasson is asking that Dr. Smith do more 17 cases, not less. So -- in fact, I think that's exactly 18 what happened; I think he did do more cases. 19 Did we ever relieve the concern around 20 tardiness? No. 21 At various times, Dr. Smith had 22 administrative support. It was an issue we dealt with 23 Dr. Becker on a repeated basis. We would get 24 reassurances that it would im -- improve and that he 25 would monitor it and that he would work on it and for a -
891 - there would be some transient improvement, and then -- 2 and then usually things would get worse and we'd deal 3 with the issue again. 4 MR. MARK SANDLER: Okay. Now I want to 5 move from there. Undoubtedly this will come up again in 6 the context of some of the systemic issues that the 7 Commission has to wrestle with. 8 But lets turn back to the chronology, 9 because I -- I am -- I'm moving steadily, if I may, 10 through -- through time. And we've just talked about the 11 revisioning memo in 1997 and I want to go back to the 12 chronology, and -- and pick up the events that were 13 occurring in late 1997 and in 1998. 14 So if you'd look with me at the -- at the 15 chronology again. 16 DR. JAMES YOUNG: Yeah. 17 MR. MARK SANDLER: And we see under 18 Jenna, January 1997 to December 1998. 19 And it reflects: 20 "Mr. Smith originally told the police 21 in meetings, including Dr. Cairns and 22 Dr. Young..." 23 And stopping there for a moment, do you 24 recall that -- that you did attend a -- at least one (1) 25 meeting that -- that took place that concerned Jenna and
901 what could be said about time of death? 2 DR. JAMES YOUNG: Yes. 3 MR. MARK SANDLER: Oh, sorry, time of 4 infliction of injuries, not time of death. 5 DR. JAMES YOUNG: Yes, this is -- in fact 6 is the -- the one (1) case where I remember actually 7 being in a case conference about the case. 8 MR. MARK SANDLER: Okay. And so the 9 summary here says: 10 "Dr. Smith originally told the police 11 that Jenna's injuries were sustained 12 prior to 17:00 on January 21, 1997. 13 And that no injuries could be dated 14 past twenty-four (24) hours. During 15 the preliminary inquiry on October 16 23rd, 1998, Dr. Smith testified that 17 the injuries could have occurred up to 18 twenty-four (24) to twenty-eight (28) 19 hours prior to death. After the 20 preliminary inquiry on December 1, 21 1998, Dr. Ein spoke with Dr. Smith and 22 the latter agreed that the fatal injury 23 occurred on the evening of Jenna's 24 death. Defence counsel, Mr. Hauraney, 25 requested that Dr. Smith set out his
911 new opinion in writing. Dr. Smith 2 wrote a memo to Dr. Cairns asking if he 3 should do so." 4 Now, we heard evidence here from the -- 5 from the forensic pathologists that were retained as part 6 of the Chief Coroner's Review, as well as from Dr. 7 Pollanen, that the pathology demonstrated that the fatal 8 injury must have been inflicted within a relatively short 9 time prior to the death of this child, which as a matter 10 of matching up with -- with the other evidence, would 11 have pointed at the babysitter as opposed to at -- at the 12 mother, okay? 13 DR. JAMES YOUNG: Mm-hm. 14 MR. MARK SANDLER: So I want to ask you, 15 in that context, do you remember this issue being case 16 conferenced as to what Dr. Smith had to say about his 17 ability to fix the time of the injuries being inflicted? 18 DR. JAMES YOUNG: The -- my recollection 19 is -- of it is that at -- he was -- at that point he was 20 saying sometime within the twenty-four (24) hours. He 21 was -- he had a broader period rather then a more 22 specific period. 23 MR. MARK SANDLER: All right. And then 24 you see the reference -- 25 DR. JAMES YOUNG: Which -- which -- I --
921 I must comment, you know, not in this particular case, 2 the more specific the better, but one has to also realize 3 that -- that the normal criticism in situations like this 4 is that people narrow things down too much and that 5 becomes the debate. 6 And the argument in -- in court cases is 7 that people restrict it, and they'll -- you know, we -- 8 we get into the argument over time of death in the 9 Simpson Case for example, and you end up with all of 10 these issues where people say that they've narrowed it 11 too much. 12 So the general criticism of people is they 13 narrow it too much, not that they make it too wide. 14 Because you can always go from wide to narrower -- 15 MR. MARK SANDLER: Well granting -- 16 DR. JAMES YOUNG: -- but you don't want 17 to be too narrow too early. 18 MR. MARK SANDLER: I mean, granting that, 19 and I take your point, but the issue here that has been 20 raised is -- is that the pathology, if one accepts the 21 evidence of the five (5) forensic pathologists, and Dr. 22 Pollanen clearly pointed to the fatal injuries being 23 inflicted within a short period of time rather then the 24 larger window of time that was identified earlier by Dr. 25 Smith.
931 DR. JAMES YOUNG: Mm-hm. 2 MR. MARK SANDLER: You understand that 3 issue? 4 DR. JAMES YOUNG: Yes. 5 MR. MARK SANDLER: All right. Now -- 6 DR. JAMES YOUNG: Yeah, I'm just simply 7 saying in -- 8 MR. MARK SANDLER: That's not the usual 9 issue? 10 DR. JAMES YOUNG: That's not the us -- 11 MR. MARK SANDLER: No, I got it. 12 DR. JAMES YOUNG: It's the reverse of 13 what the usual issue is. 14 MR. MARK SANDLER: Right. 15 DR. JAMES YOUNG: Usually the argument 16 and the issue centres in the opposite direction. 17 MR. MARK SANDLER: Right. Now, reflected 18 in the passage that I read to you from the chronology was 19 that after the preliminary inquiry, as a result of 20 conversation with Dr. Ein, it appeared that -- that there 21 was some recognition that the fatal injury must have 22 occurred on the evening of Jenna's death. 23 Were you aware of that? 24 DR. JAMES YOUNG: I was aware that the 25 time frame was narrowing, and I was aware that Dr. Cairns
941 was looking for other expertise in working -- you know, 2 that he and Dr. Clark were having meetings about this 3 case. 4 So the general fact that the time frame 5 was narrowing and they were trying to -- they were 6 seeking out expertise -- I think they went to the west 7 coast and -- and got an expert in some field -- so I was 8 aware that there was activity. There were meetings with 9 the police with people, but that -- that was sort of my 10 knowledge of it. 11 MR. MARK SANDLER: And -- and would that 12 raise any concerns on your part if -- if the other 13 expertise that was being marshalled on the case suggested 14 that Dr. Smith had gotten it wrong in terms of what he 15 said about time of infliction of fatal injuries? 16 DR. JAMES YOUNG: Not -- not from the 17 point of view that if -- if other people and other 18 experts are saying you can narrow the time down, that 19 you're too broad, normally I would be saying, Fine, good, 20 we don't have the opposite problem where you've been too 21 -- too narrow. So, I mean, my -- my -- actually my 22 thinking would be, I'd rather it's going in that 23 direction. 24 And as you add expertise, if they're able 25 to -- if, for example, the adding of Dr. Ein in the
951 clinical elements gives you better information based on 2 what happens in living kids; it allows you to pay less 3 attention to the pathology, more attention to the 4 clinical histories that these children present, great. 5 That helps the case; that helps narrow it 6 down. I'm not particularly disturbed by that. Just as 7 in head injury cases, often the neurosurgeon can play as 8 important or more important role in narrowing the time 9 frames down than -- than the pathologist. 10 And I would -- if there's -- I would 11 prefer always that the pathologist be absolutely in sync 12 and always right, but if there's going be a -- a 13 direction they move, it's better they move from a longer 14 period to a shorter period than a shorter period to a 15 longer period. 16 MR. MARK SANDLER: Well, I -- I'm just 17 going to ask one (1) last question in this area and then 18 we'll -- we'll take it up after the break. But -- but I 19 want to understand what you're saying. 20 As I indicated to you earlier, the expert 21 opinions that the Commissioner has heard, up until this 22 point in the inquiry, is that the deficiencies in Dr. 23 Smith's opinion wasn't simply that -- that through the 24 use of outside clinical opinions, one could narrow the 25 time of infliction of injuries beyond that which was
961 within the expertise of the pathologist. 2 What the Commissioner has heard is that 3 the pathologist was well-positioned to opine that these 4 fatal injuries must have been inflicted shortly before 5 and on the evening of Jenna's death, so that Dr. Smith 6 got it wrong. And what I'm asking you is, is that -- 7 DR. JAMES YOUNG: Well, he didn't get it 8 wrong. He didn't narrow it enough. 9 MR. MARK SANDLER: All right. 10 DR. JAMES YOUNG: I mean, he didn't -- I 11 mean, the time period's within the time period he said. 12 He didn't get it wrong. He just didn't have it -- he 13 didn't have it narrowed down as far as it could be 14 narrowed down or -- or appropriately. And others think 15 that it could be narrowed more. 16 MR. MARK SANDLER: All right. So when -- 17 DR. JAMES YOUNG: And I accept that. 18 That's -- 19 MR. MARK SANDLER: Okay. 20 DR. JAMES YOUNG: -- that's fine if 21 they're willing to do that. 22 MR. MARK SANDLER: So what I'm asking you 23 is, was that issue alive in your mind back in 1998; 24 namely, not only that one could look to outside clinical 25 expert support to narrow the time of death, but that Dr.
971 Smith may have misread the pathology in opining a wider 2 window of opportunity than the pathology supported? 3 DR. JAMES YOUNG: Well, I don't agree 4 with -- 5 MR. MARK SANDLER: That's all I'm asking. 6 DR. JAMES YOUNG: I don't agree with you 7 that he's misreading the pathology. Opining a wider -- a 8 wider time isn't a misreading of the pathology. It's -- 9 it's taking a -- a broader time frame. It would be very 10 useful in this particular case to narrow it down, but if 11 he's -- if he's not comfortable in narrowing it down and 12 he narrows it down, you'd be standing here criticizing 13 him for narrowing it too much. 14 So he -- you know, he can't win in this 15 particular case. He does -- he takes a very conservative 16 view and a longer view. Someone else starts to narrow it 17 down clinically. I'm not overly critical. Would I like 18 him to have been -- had exactly the same view as the 19 other pathologist? Yes. 20 MR. MARK SANDLER: Well, I -- 21 DR. JAMES YOUNG: But I -- but I would be 22 less critical of him in this case for having taken a -- a 23 broader view that allows both possibilities than to have 24 narrowed it down. If -- if it had turned out that he 25 narrowed it down and he was wrong, you'd be asking me
981 these questions that, Aren't you critical of Dr. Smith 2 for narrowing the period down too much and 3 overinterpreting. 4 MR. MARK SANDLER: Well, if I can -- if I 5 can say respectfully, I don't know that we should go to 6 what I would be doing in the event of, but I just want to 7 understand your evidence. 8 DR. JAMES YOUNG: Well, you're asking me 9 the same thing. 10 MR. MARK SANDLER: Well, -- 11 DR. JAMES YOUNG: You're -- you're 12 turning it on me and saying, be critical of him for 13 misinterpreting. He -- he didn't misinterpret, he just - 14 - he didn't narrow it as far as other people did. 15 MR. MARK SANDLER: Dr. Young, I just -- 16 DR. JAMES YOUNG: That's not necessarily 17 a misinterpretation. 18 MR. MARK SANDLER: Dr. Young, I just want 19 to understand your evidence, so just before we leave this 20 point, I want to understand it. Let's assume -- and I'm 21 not asking you to be critical of him; I'm asking what was 22 in your mind during that relevant period. 23 So let's just be clear on what the 24 question is. If a pathologist expresses the expert 25 opinion that on examination of the injuries that a
991 deceased child suffered, one can say from looking at the 2 absence of healing to that injury and other pathological 3 findings that those injuries must have been inflicted 4 within a short period of time, and one (1) can exclude 5 absolutely the infliction of those injuries within the 6 broader period of time articulated by Dr. Smith. 7 And if that expert opinion is right, are 8 you saying that Dr. Smith's opinion would not be 9 pathologically wrong simply because he's gone too wide, 10 as opposed to too narrow? Is that your position? 11 DR. JAMES YOUNG: No, that -- first of 12 all we've got two (2) questions on the floor. You -- you 13 asked me another question. Now you've asked me a 14 different question. Which -- which would you like me to 15 answer first? 16 MR. MARK SANDLER: Well, why don't you 17 answer the question that I just put to you now. 18 DR. JAMES YOUNG: That -- okay, I don't - 19 - I think we're talking -- you're making certain 20 suppositions there that -- that people are -- absolutely 21 exclude that period of time. That's fine. They're 22 prepared to do that, and they're prepared to take that 23 information and do it. 24 And I'm not suggesting Dr. Smith's opinion 25 is -- is correct. But if he looks at it and says it
1001 falls within a certain range, and I'm not prepared to go 2 as far as saying that it falls only in this period of 3 time. 4 I -- I hear you, and I hear what you're 5 saying. But I don't necessarily agree that -- that -- 6 that -- he wasn't willing to say that, he was willing to 7 say, I am quite confident and quite positive that within 8 those twenty-four (24) hours. 9 Would it be useful and would it be good, 10 and if you can find experts that are more confident and 11 are willing to say, It only falls in this period of time, 12 great. And that's why we would get second opinions in 13 clinicians. 14 So I -- I'm not -- I'm not arguing with 15 you that -- that whether he's right or wrong. But he's 16 not totally wrong by saying that it's -- it's a 24 hour 17 period. He's right; it's within twenty-four (24) hours. 18 Others are willing to say, I'm willing to 19 exclude this other period. He wasn't at that point in 20 time. 21 MR. MARK SANDLER: Okay. Thank you. I 22 understand that. 23 DR. JAMES YOUNG: Well, could I answer 24 the ri -- the other question? 25 MR. MARK SANDLER: I -- I think you have,
1011 but if you'd like to -- 2 DR. JAMES YOUNG: No, I don't -- 3 MR. MARK SANDLER: -- elaborate upon it, 4 that's fine. 5 DR. JAMES YOUNG: -- I mean -- well, you 6 asked me specifically how would this influence me, and -- 7 and the answer is, I was not thinking in terms that -- 8 that this was a problem. 9 And what it said to me is, We need to get 10 more expert opinion. We need to bring clinicians into 11 this. So was I disturbed? I don't have the benefit of 12 the five (5) other opinions. At this point in time he 13 says to me, This falls within twenty-four (24) hours. 14 As with other cases such as Tyrell then 15 what I say is, Let's go get some clinical opinion and see 16 if that helps narrow that down. And so I would -- I 17 wouldn't have any alarm bells going off that his opinion 18 is wrong. 19 Rather I'd be saying, Can we supplement it 20 with further information? Can we narrow it down? And 21 that's what they go and do -- 22 MR. MARK SANDLER: Okay. 23 DR. JAMES YOUNG: -- and they go and get 24 Dr. Ein. So this does not -- this -- at this point in 25 time, the twenty-four (24) hours doesn't set off any
1021 alarm bells. He's, in fact, doing what I asked him to do 2 and -- and being a little more conservative in his views. 3 MR. MARK SANDLER: Okay. 4 DR. JAMES YOUNG: That's what I cautioned 5 him to do in -- in Gagnon. 6 MR. MARK SANDLER: And thank you for 7 providing that to me. That would be a convenient time, 8 Commissioner. 9 COMMISSIONER STEPHEN GOUDGE: We'll break 10 now for fifteen (15) minutes. 11 12 --- Upon recessing at 11:20 p.m. 13 --- Upon resuming at 11:36 a.m. 14 15 THE REGISTRAR: All rise. Please be 16 seated. 17 COMMISSIONER STEPHEN GOUDGE: Mr. 18 Sandler...? 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Thank you, 22 Commissioner. I was about to take you to the next page 23 of the chronology, which is page 4, and just deal briefly 24 with two (2) of the items here. 25 The first, at the top of the page, is
1031 April 1997, if you have that? 2 DR. JAMES YOUNG: Yes. 3 MR. MARK SANDLER: And it reflects that 4 in the Taylor case, Dr. Smith produced his consultation 5 report on August -- on April 19th, 1997 after repeated 6 requests by the Crown and police and a successful 7 application by the defence to compel the Crown to produce 8 Dr. Smith's report. 9 Were you aware of that case and what had 10 transpired in that regard? 11 DR. JAMES YOUNG: No. 12 MR. MARK SANDLER: And, recognizing that 13 you were unaware of it, the fact that the situation was 14 sufficiently acute that the defence had to bring an 15 application in Court to compel the Crown to produce Dr. 16 Smith's report; is that something you would have liked to 17 know within the Chief Coroner's Office? 18 DR. JAMES YOUNG: Yes. I -- I wouldn't 19 know whether or not anyone in the office knew. But, 20 certainly, it's something we would like to know, I would 21 assume. 22 MR. MARK SANDLER: All right. And in 23 January 1998 in the Sharon case, we see that on January 24 the 12th of 1998, defence counsel, Mr. Rumble, wrote to 25 Dr. Smith respecting the whereabouts of his report.
1041 Mr. Rumble sent a copy of the letter to 2 Dr. Young and Dr. Chiasson. 3 In January of 1998, the Regional Coroner, 4 Dr. Bechard, met with Dr. Smith in Toronto. 5 On January the 27th, the Crown wrote to 6 Dr. Smith and indicated the delay had become an 7 embarrassment for the Crown's office. 8 On February the 9th of 1998, a subpoena 9 was issued for Dr. Smith to attend court on March 10th, 10 1998 and bring his report. 11 Dr. Bechard faxed a newspaper article 12 about the court appearance to Dr. Chiasson on February 13 13, 1998, and Dr. Smith provided his report on March the 14 8th, 1999. That should be 1998. 15 So, stopping there for a moment. There is 16 a reflection that Mr. Rumble copied you on the -- on the 17 correspondence concerning the whereabouts of his report. 18 Do you recall receiving that letter from 19 Mr. Rumble? 20 DR. JAMES YOUNG: Not specifically, no. 21 MR. MARK SANDLER: All right. Were you 22 aware of the delays that are reflected in this portion of 23 the chronology on the Sharon case? 24 DR. JAMES YOUNG: No. What I likely 25 would have done -- I mean, either I would have sent, you
1051 know, taken my copy of the letter on January the 12th, 2 and I likely sent a note or memo or -- or something on it 3 to David Chiasson. 4 But I may have even noted that he was 5 copied and, you know, I -- not taken action. But, beyond 6 that, I wouldn't have known anything about this, no. 7 MR. MARK SANDLER: All right. And, 8 again, would you have liked to have known, as the Chief 9 Coroner, that the situation was so acute that a subpoena 10 had to again be issued for Dr. Smith to attend Court and 11 bring his report and that the Crown was characterizing 12 the situation as an embarrassment for the Crown's office? 13 DR. JAMES YOUNG: Yes. 14 MR. MARK SANDLER: And we've seen Dr. 15 Bechard being referred to at various points in the 16 chronology; did you specifically have discussions at any 17 point with Dr. Bechard about -- about the fact that cases 18 in which he had been involved as -- as coroner engaged 19 these kinds of acute issues? 20 DR. JAMES YOUNG: Well I think any -- any 21 discussions took place at regional coroner's meetings and 22 generally the issue would be raised that his reports were 23 tardy and difficult and difficult to get out. So those 24 would be the -- those would be the times that issues like 25 this would be brought up.
1061 MR. MARK SANDLER: And assuming the 2 accuracy of what's contained in -- in the chronology, do 3 you feel that this isn't simply a situation of delinquent 4 reports but reflects something much more acute? 5 DR. JAMES YOUNG: I guess the -- the 6 hesitation, the problem I have with this case is -- is, I 7 mean, if -- if you take it in light of everything we know 8 tody, yes. Is it in and by itself alarming? Yes. 9 But it's not issues around the -- the 10 quality of his work, it's an issue around timeliness and 11 tardiness. And it's certainly becoming very worrisome 12 that, you know, the only way to get him to write a report 13 is to subpoena him to Court. It's, you know, it's beyond 14 tardy and, you know, and -- and chronically tardy now. 15 It's, you know, I've -- I mean, I 16 personally would be pretty embarrassed to receive a 17 subpoena that -- and have to do it once, let alone 18 multiple times. So, yeah, it -- it's indicative of a -- 19 of a growing problem but it's a growing problem of 20 tardiness at this -- at this point, not necessarily, you 21 know, I don't know that -- I don't know, you could sort 22 of take it a whole lot further than that. 23 MR. MARK SANDLER: Okay. Now the next 24 item in the chronology relates to the Amber case, so 25 we're going to revisit what was happening on -- on Amber
1071 in a moment, and rather than do it through the 2 chronology, I'm going to do it through the -- the 3 documents themselves. 4 So if I can take you to the white volume, 5 Volume IV. 6 COMMISSIONER STEPHEN GOUDGE: It's a 7 thinner one, Dr. Young. 8 DR. JAMES YOUNG: Okay. 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: And specifically 12 Tab 20 of that volume. And this is 145609 -- 13 DR. JAMES YOUNG: Yes? 14 MR. MARK SANDLER: -- and it is a 15 memorandum from the Deputy Registrar of the College of 16 Physicians and Surgeons to the Registrar and you're 17 copied on the memorandum as is the Deputy Chief Coroner. 18 Am I right? 19 DR. JAMES YOUNG: Oh, yes, I guess I am. 20 Yes. 21 MR. MARK SANDLER: All right. And what 22 is reflected in part is -- is this: 23 "What Dr. Carlisle says as the Deputy 24 Registrar..." 25 And just stopping there for a moment, you
1081 had dealings with Dr. Carlisle at the -- at the College 2 in connection with the kinds of issues that we've been 3 discussing earlier in the day today? 4 DR. JAMES YOUNG: Yes. 5 MR. MARK SANDLER: And it reflects: 6 "I believe it would be useful if I 7 attempted to summarize the discussions 8 which took place at the recent 9 executive committee meeting at which 10 the Chief Coroner, Dr. Young, and the 11 Deputy Chief Coroner, Dr. Cairns, were 12 kind enough to attend." 13 And skipping to the third paragraph: 14 "There was agreement that certain 15 actions taken by a coroner are clearly 16 taken in his or her capacity as a 17 coroner under the Coroner's Act, and 18 are not acts in the practice of 19 medicine, but rather official acts done 20 as a public officer. 21 On the other hand, there are acts 22 done by coroners or alleged to be done 23 which are recognizable as acts in the 24 practice of medicine and which are 25 neither required by nor done in
1091 pursuance of authority under the 2 Coroner's Act in an official capacity. 3 It was agreed that in respect of 4 acts done in the exercise of the office 5 of coroner, complaints should not be 6 brought to nor adjudicated by the 7 complaints committee but instead should 8 be dealt with by the Chief Coroner and 9 the Coroners' Council. 10 With respect to acts which are not 11 in the execution of the Office of 12 Coroner but rather a part of the 13 practice of medicine, complaints should 14 not be brought to the Chief Coroner but 15 instead should be dealt with under the 16 provisions of RHPA by the complaints 17 committee." 18 Then it goes on to discuss that: 19 "It's recognized that there will 20 inevitably be a grey area in-between 21 these and at least in the eyes of the 22 complainants." 23 And then skipping to the next page, page 24 2: 25 "It was agreed that the College will
1101 encourage complainants purporting to 2 bring complaints about physicians 3 conduct in the execution of the duties 4 of coroner, not to bring complaints to 5 the College, but to take them to the 6 Chief Coroner and the Coroners' 7 Council, at least before contemplating 8 any attempt to pursue the matter at the 9 College." 10 And just stopping there for moment. Does 11 that accurately represent the nature of any agreement 12 that was reached between the Chief Coroner's Office and 13 the College on that issue? 14 DR. JAMES YOUNG: Yes. 15 MR. MARK SANDLER: Okay. And there's 16 some discussion later on at page 2 of the -- of the 17 document about what should happen in the event that the 18 matter is challenged in the Health Professions Board and 19 the College and coroner will work cooperatively on that 20 issue. 21 And I - I won't take you to that now. 22 We'll revisit that in the context of -- of what the 23 Health Professions Board ultimately does do when this 24 matter weaves its ways up there, okay? 25 DR. JAMES YOUNG: Yeah.
1111 MR. MARK SANDLER: So if you then go to a 2 document that is not in your binder, but what you've been 3 provided in loose form, and it's PFP146277. 4 And, Commissioner, you won't have this 5 document; it'll simply come up on the screen for you. 6 This is a letter from senior investigator, 7 Ms. Mann, at the College of Physicians and Surgeons to 8 the father of SM in connection with his complaint. And 9 Mrs. Mann on behalf of the College describes the various 10 things that have been done by the College in connection 11 with the complaint. 12 She took carriage of the file on October 13 of 1996. She reflects that she'd reviewed volumes of 14 court transcripts, as well as -- as well as his analysis 15 of the details. She reflects that -- that various 16 transcripts have been provided including the full written 17 judgment from SM's criminal trial and transcripts of -- 18 of testimony to -- to members of the SCAN Team. 19 And then if I can take you to page 2 of 20 the document. It says in the second paragraph: 21 "Both physicians..." 22 And she's referring here to Dr.'s Driver 23 and Barker. 24 "Both physicians had approximately one 25 (1) month to review the substantial
1121 documentation prior to my meeting with 2 the, which took place on March the 7th. 3 Their lawyer, Ms. Stewart (phonetic), 4 was also in attendance. At your 5 request, I detailed for them the 6 significant impact the case has had and 7 so on. I was able to confirm that the 8 Hospital for Sick Children did receive, 9 at the time of its release, a copy of 10 the judgment and in fact, this practice 11 continues today in all court cases 12 involving the hospital. These 13 judgments are reviewed as a means of 14 educating staff and constantly striving 15 for quality improvement measures." 16 Now, just stopping there for a moment. 17 Until you read this and -- and the letter I've just 18 provided to you now, were you aware that the Hospital for 19 Sick Children allegedly did receive, at the time of the 20 release, a copy of the judgment and -- and receives all 21 court cases involving the hospital as a -- as a 22 continuing practice? 23 DR. JAMES YOUNG: No. No, I -- 24 obviously, I wasn't copied on this letter and I would 25 have -- but I wasn't aware of that fact either.
1131 MR. MARK SANDLER: And I take it -- and I 2 -- and I can't suggest to whether or not that accurately 3 does or doesn't reflect the practice at the Hospital for 4 Sick Children -- we'll have to hear about that -- but 5 you'd agree, systemically, it would be a good practice? 6 DR. JAMES YOUNG: It's good practice, 7 yes, I agree. 8 MR. MARK SANDLER: All right. And then 9 if -- if you'd move ahead to the next page, page 3, 10 second paragraph. The investigator says: 11 "Finally, I did meet with Dr. James 12 Young to discuss the circumstances of 13 this case and to seek answers to some 14 of your outstanding questions. He did 15 have a very good recollection of this 16 case and asked that I relay the 17 following information to you and your 18 family. 19 The order of exhumation of Amber was 20 made the Attorney General of Ontario, 21 as was the protocol in 1988, on the 22 basis that there was a criminal 23 investigation being conducted. Since 24 that time, the Chief Coroner of Ontario 25 now has the ability to order an
1141 exhumation independent of the Attorney 2 General. It's common practice for 3 coroners to speak to parents, police, 4 and other authorities anywhere 5 throughout the province as part of 6 their investigation. The Chief Coroner 7 has the authority to request a 8 pathologist to become involved with a 9 case, if required. 10 Finally, revisions can and are made to 11 a death certificate if additional 12 information comes forward, which might 13 result in a change in the cause of 14 death. A case in point, which has been 15 well publicized recently is the Tammy 16 Homolka death." 17 And did that accurately represent 18 information that you communicated to an investigator in a 19 meeting concerning this complaint? 20 DR. JAMES YOUNG: I would -- I would 21 think so, yes. 22 MR. MARK SANDLER: All right. When the 23 investigator reflects that -- that she met with you to 24 discuss the circumstances of this case, and to seek 25 answers to some of your outstanding questions, did she
1151 discuss with you at that time, again, any aspects of what 2 had been decided in the case, or the specific pathology 3 issues that had been raised -- 4 DR. JAMES YOUNG: No. 5 MR. MARK SANDLER: -- by the father of 6 SM? 7 DR. JAMES YOUNG: No, I -- I don't have a 8 tremendous recollection of the meeting, but I -- I would 9 -- clearly there were a set of -- of questions that she 10 answers in the rest of the -- of the paragraph that were 11 issues that we discussed. 12 My knowledge of the case at this point in 13 time would have been -- I -- I would remember it well 14 from the point of view of -- of meeting with the family; 15 going to Timmins. I still remember that meeting very 16 well. 17 My involvement, as I've relayed to you at 18 the beginning, -- after that my impression was then, and 19 until recently, that it was a hard-fought case that Dr. 20 Smith told me the judge -- you know, the -- the issue 21 around Justice Dunn and -- and the meeting. 22 So my view was it was hard-fought. There 23 were views -- differing views about the existence of 24 shaken baby, and that was what the issue revolved around. 25 And so that would be what I would be talking to her
1161 about, but I certainly wa -- it wasn't an in depth, What 2 did the court say, et cetera, et cetera. 3 MR. MARK SANDLER: All right. And if 4 you'd look at Tab 21 of Volume IV. This is a memorandum, 5 again, from the College of Physicians and Surgeons dated 6 December the 23rd of 1997. Its subject, "More Complaints 7 About the Coroners Sort Of." And it says: 8 "Further to our recent email exchange, 9 I thought I should let you know about 10 another complaint file relating to the 11 coroner's office. This one (1) is 12 somewhat unusual. We've recently 13 completed an investigation that again 14 appears to raise the issue of CPSO 15 investigating physicians acting under 16 the authority of the coroner's office. 17 The respondent physician is Charles R. 18 Smith, who I understand is a noted 19 forensic pathologist working with the 20 SCAN Team at Sick Kids. An outline of 21 the complainant's concern is set out in 22 the attachment which I've copied from 23 CATS. Smith's involvement with the 24 case arose from his conduct of a post- 25 mortem and so on. And then it's
1171 reflected that a teenage babysitter was 2 subsequently charged with manslaughter. 3 At trial, the defence presented 4 evidence from a variety of experts 5 including Pat Horsham..." 6 I'll just stop there just to advise you 7 that Dr. Horsham was involved at the College in a -- in 8 a, I believe, a directors or consultant's position -- I 9 can't recall at the time -- and that's why the reference 10 is -- is to her. 11 "...who testified that Smith's opinion 12 of Shaken Baby Syndrome was plain 13 wrong. The accused was acquitted. The 14 trial judge in his reasons was very 15 unkind to Smith, taking him to task for 16 various errors of procedure and 17 substance in his handling of the case, 18 and for so stridently and unwaveringly 19 maintaining the infallibility of his 20 position notwithstanding the weighty 21 evidence to the contrary." 22 And then skipping down: 23 "The case is quite old having had to 24 outwait the judicial process. It 25 involves a high profile position, a
1181 very angry complainant, a dissatisfied 2 judge, and a high profile case in the 3 local community. I thought you might 4 want to know about it and so on." 5 And then the recipient, which is Dr. 6 Carlisle; we see a note here: 7 "Add to my list to discuss with Jim 8 Young." 9 I'm sorry, I've been corrected. Dr. 10 Horsham was on the Discipline Committee. 11 DR. JAMES YOUNG: Mm-hm. 12 MR. MARK SANDLER: Was -- did Dr. 13 Carlisle discuss this with Jim Young? 14 DR. JAMES YOUNG: I don't know. I have 15 no recollection. I met with Dr. Carlisle quite often, 16 but I -- I don't know. I don't have any independent 17 recollection of -- and I didn't receive this -- this 18 memo, but I don't know. 19 MR. MARK SANDLER: All right. And then 20 at Tab 22, we see that you write to Mrs. Mann on March 21 the 4th of 1998, and you say: 22 "I understand that a complaint has been 23 filed against Dr. Smith in relation to 24 the above noted matter." 25 And -- and stopping there for a moment,
1191 what is your best recollection of where that 2 understanding came from? 3 DR. JAMES YOUNG: Probably Dr. Smith, but 4 I'm not sure. 5 MR. MARK SANDLER: All right. And then 6 skipping down, in essence what you express in this letter 7 is that it is the Chief Coroner's position that the 8 College has no jurisdiction to deal with complaints about 9 the actions, findings or opinions of a pathologist acting 10 pursuant to the Coroners Act. 11 Am I right? 12 DR. JAMES YOUNG: That's -- that's the 13 position that I'm advancing at that point in time. 14 MR. MARK SANDLER: All right. 15 DR. JAMES YOUNG: And I suspect -- I 16 suspect I didn't write this particular letter, but I -- I 17 certainly signed it and I caused it to be written. 18 MR. MARK SANDLER: Okay. 19 DR. JAMES YOUNG: It's -- it's not 20 written -- it's likely been written by a lawyer on my 21 behalf. 22 MR. MARK SANDLER: All right. And then 23 if you look at Tab 24, just in -- just to complete the 24 sequence of -- of these documents. This again -- 25 MR. ROBERT CENTA: What document?
1201 MR. MARK SANDLER: -- this is 145631. 2 And Dr. Carlisle has again written an internal memorandum 3 to the Registrar of the College and reflects: 4 "Dr. Young writes to defend his Crown 5 pathologist, Dr. Smith, in relation to 6 a complaint. We've known about it for 7 some time. You will recall the 8 discussion that the Chief Coroner had 9 with the Executive Committee in which 10 we reached an understanding about the 11 College's attitude towards complaints 12 against coroners. You will also recall 13 at that time that there was an explicit 14 understanding about complaints against 15 Crown pathologists. That understanding 16 was that the Chief Coroner understood 17 that, in all likelihood, an assertion 18 of lack of jurisdiction on the part of 19 the College in respect of Crown 20 pathologists would fail, legally. 21 He held strong to his position in 22 respect of coroners, and he understood 23 clearly that we did not agree with the 24 legal opinion that he had been given. 25 But, notwithstanding that, we agreed
1211 that we would do our very best not to 2 entertain complaints about coroners 3 while acting in their official capacity 4 as a coroner, and we would refer those 5 complaints to him." 6 And then skipping down to the next 7 paragraph: 8 "It was further agreed that the coroner 9 would not press the matter with respect 10 to Crown pathologists. Jim finds 11 himself compelled to give the best 12 appearance he can of trying to protect 13 Crown pathologists because of concerns 14 in their office that, in the event that 15 they appear not to be willing to 16 protect such people there will not be 17 anyone who is willing, in some areas of 18 the Province, to fulfill the 19 responsibilities. Personally, I feel 20 that's a little stretched, but it's 21 their song, and we agreed to give as 22 much deference to it as we could." 23 Now, stopping there -- I won't ask you 24 whether you feel it's a little stretched or not. I'm 25 just going to ask you about the substance of what you
1221 purported to communicate to them. 2 And then skipping down: 3 "In the case before us currently, the 4 pathologist is complained about on the 5 basis that he gave a wicked false 6 report in court. This is a -- there is 7 a somewhat awkward point in that the 8 team that gave evidence for the 9 defendant, which ultimately resulted in 10 an acquittal, and in some negative 11 comments from the Court about Dr. 12 Smith's evidence, included Dr. Horsham, 13 a member of our Council. In any event, 14 the argument that the College has no 15 jurisdiction to entertain the 16 complaints about Dr. Smith's 17 professional work as a pathologist is a 18 weak one, and has been acknowledged to 19 be a weak one. The Executive and the 20 Chief Coroner have agreed to do their 21 very best not to end up in conflict in 22 front of the Divisional Court on this 23 issue." 24 And then at the next page, at page 2, and 25 I won't read it all out, but in the last large paragraph
1231 the -- the case is made for -- for the basis upon which 2 the College can take the position that -- that it doesn't 3 have jurisdiction to address this pathologist's case. 4 And in the last line it says: 5 "The Chief Coroner will be seen to 6 protect the interests of this 7 pathologist and the Board will decide 8 whatever it decides. The Chief Coroner 9 well knows that if a decision is 10 adverse to the Complaints Committee and 11 requires the Committee to deal with the 12 complaint, the College is not likely to 13 appeal or to seek judicial review where 14 the case involves a Crown pathologist, 15 and I do not believe he would expect us 16 to do so." 17 Has Dr. Carlisle accurately reflected what 18 information and opinions you communicated to the College 19 as Chief Coroner? 20 DR. JAMES YOUNG: As far as it goes, I -- 21 I have other reasons that are included sort of in a -- in 22 a vague way in his -- his characterization. Certainly, 23 we're at a point of -- of having these discussions. 24 I -- I -- as I mentioned earlier, I had 25 stronger views about the validity of our argument in
1241 terms of coroners than pathologists. I recognize that 2 the debate or the argument about pathologists was harder 3 to defend, in -- in the sense of -- of the fact that an 4 autopsy was part of what they normally did, and could be 5 considered a -- a medical act. 6 But my two (2) very major concerns were: 7 1. That the College was not equipped to 8 be able to manage these cases because of the addition of 9 Court testimony and sorting out through Court testimony; 10 and dealing with the issues around conflicting experts. 11 And they had no particular expertise in this area; and -- 12 and in fact could be seen as second guessing the Courts 13 in -- in some of the instances. 14 So I -- I had serious concerns about their 15 ability to do it and do it correctly and do it fairly. 16 And -- and -- and I -- as the manager of a system, I had 17 concerns about the effect this may have in -- in 18 recruitment and retention of -- of -- of help. We -- we 19 were facing serious shortages of pathologists then and in 20 the future. 21 We -- it was around that time, we -- we in 22 fact had a withdrawal of services from pathologists over 23 a wage issue. And -- and I don't remember exactly when 24 that was, but we -- we eventually -- at one (1) point, 25 over 50 percent of the pathologists refused to do cases
1251 for a few weeks. 2 And after they returned and we got it 3 solved, not everyone returned. We lost a number of 4 pathologists who just said this is -- this is too big an 5 aggravation for too little money, and I'm not coming -- 6 going -- going back and doing it. 7 And my concern as someone who has to keep 8 a system running is, I've got to have the manpower, and 9 if they feel that the office of the Chief Coroner isn't 10 defending what they do, and is exposing them to 11 additional tribunals and hearings, then I -- I must be 12 seen to be at least standing up for them, and -- you 13 know, will decide ultimately whether -- how far we take 14 it, so. 15 MR. MARK SANDLER: Okay. Now, what I want 16 to understand is, what that meant systemically in terms 17 of how a complaint of this nature would be dealt with by 18 the Chief Coroner, or during that period of time that it 19 existed; the coroner's council? 20 So lets assume that a complaint comes in, 21 as it did in -- in -- in SM's case, raising issues about 22 the opinions, and testimony given by a forensic 23 pathologist operating within the coronial system. And 24 the complaint was based upon concerns about objectivity, 25 concerns about competence and concerns about basically
1261 some of the substantive materials that were being relied 2 upon to support the opinions that were given. 3 Lets assume, as we've see -- as we see at 4 the next -- at Tab 25, that in May of 1998 the complaints 5 committee of the College declines to take any action in 6 the matter, accepting the position that it has no 7 jurisdiction. 8 And you were aware that that did happen at 9 that point in time -- 10 DR. JAMES YOUNG: Mm-hm. 11 MR. MARK SANDLER: -- right? So what 12 formal discipline process, if any, was in place on the 13 coronial side to -- 14 DR. JAMES YOUNG: We -- we -- 15 MR. MARK SANDLER: -- address the issue? 16 At that time. 17 DR. JAMES YOUNG: -- there was -- there 18 wasn't one (1) at the time, because we had never -- this 19 is the first complaint and the first time, in either 20 body, that the issue has come up around a -- around a 21 pathologist. 22 It -- it -- it's a -- it's a -- we've had 23 -- obviously over the years complaints about coroners and 24 there was a mechanism in -- in place, but there wasn't 25 one (1) around pathology, and it hadn't come up before.
1271 So there wasn't a -- a mechanism. It 2 didn't -- it didn't exist because it had never happened 3 before. 4 MR. MARK SANDLER: All right. And do you 5 see the value, and -- and we'll kind of talk about where 6 -- where the disciplinary process went, because -- 7 because I want to talk to you about the systemic issues. 8 But I take it you'd agree with me that you 9 see the value in the existence of some formal process 10 with its own rules, and processes, and contemplated 11 results that are documented to deal with the pathologists 12 when that kind of complaint is made? 13 DR. JAMES YOUNG: Yeah, I -- I would 14 agree there needs to be a process. 15 I wouldn't necessarily agree that the 16 College was the -- the ideally situated place for it, but 17 there needs to be a mechanism, of course. 18 MR. MARK SANDLER: Okay. And what I want 19 to do is -- going to use the way the complaints made 20 their way through the system, as we develop this chronol 21 -- chronologically to address those systemic issues. 22 So if I can turn to the Nicholas case, for 23 the time being, because we'll see as we develop through 24 the chronology, that there too was a complaint emanating 25 from the -- the family of -- of those concerned.
1281 So if you'd go to the overview reports, 2 Volume II. Those are white -- the white thick volumes. 3 4 (BRIEF PAUSE) 5 6 And if you'd go to Tab 12, which is 7 PFP143263. And this is the Nicholas overview report. 8 And I should say at once, Commissioner, 9 that you've already heard -- you've already received some 10 material concerning one (1) complaint that was made by 11 the Gagnon family concerning the attendance by Dr. 12 Smith's son at the disinterment that took place. 13 And the materials demonstrate that -- that 14 the Chief Coroner responded to that complaint, spoke to 15 Dr. Smith, provided the complainant with that explanation 16 together with an apology, and I don't intend to ask 17 questions as part of my examination-in-chief on -- on 18 that issue. 19 I've accurately set out in brief form what 20 happened in that regard, did I not, Dr. Young? 21 DR. JAMES YOUNG: Yes, yep. 22 MR. MARK SANDLER: Okay. Now, I -- I 23 want to turn to some of the other issues that were raised 24 in Nicholas. And if you'd go to page 34 of the overview 25 report; paragraph 96. And there's a reference there to
1291 the fact that -- that CAS proceedings were -- were taking 2 place and that Dr. Halliday was providing affidavit 3 material in support of the position that was being 4 advanced that there had been no abuse in this case. 5 And -- and you were aware, were you not, 6 that -- that not only Dr. Smith, but Dr. Halliday was 7 providing opinions in connection with that file? 8 DR. JAMES YOUNG: Not till very late in 9 the file. 10 MR. MARK SANDLER: All right. 11 DR. JAMES YOUNG: Eventually, I was -- I 12 was aware. 13 MR. MARK SANDLER: Okay. And just -- 14 DR. JAMES YOUNG: At -- at the time, I -- 15 I guess, to be clearer -- at the time that we were 16 seeking the opinion of -- of an outside -- another 17 opinion and then I actually suggested Dr. Case, so. 18 MR. MARK SANDLER: All right. And we're 19 going to get there very shortly. So -- so I just want to 20 bring us -- bring us through the -- the chronology. 21 And we see at paragraph 96 that -- that 22 what is reflected from CAS materials is that after Dr. 23 Halliday's affidavit was received, Dr. Cairns and Dr. 24 Smith were extremely clear that the theories put forth by 25 Dr. Halliday were not sustainable, and the position of
1301 the coroner's office had not changed regarding the cause 2 of death. 3 And again, stopping there, had Dr. Cairns 4 provided you any information that -- that -- about this 5 case or the -- the dispute that had arisen in the child 6 protection proceedings before the Mary Case issue arose? 7 DR. JAMES YOUNG: No, my -- I became 8 familiar just simply at the time that they were looking 9 for another opinion. I was aware -- Dr. Halliday 10 actually is a classmate of mine, so I know -- I know Dr. 11 Halliday. He's had -- he's given two (2) or three (3) 12 opinions; Dr. Smith has an opinion; we should get another 13 opinion. 14 I suggested Mary Case who I know from the 15 American Academy of Forensic Science. 16 MR. MARK SANDLER: Okay. So -- so I'm 17 going to deal with this very briefly then and get you up 18 to the point where -- where you say you first became 19 involved. At paragraph 97, we actually see that -- that 20 counsel for Children's Aid Society sent materials to Dr. 21 Cairns, attaching an excerpt from Justice Dunn's reasons 22 acquitting the accused in the SM case and -- and included 23 various materials that you see there including some of 24 the criticisms that were levelled by Justice Dunn in the 25 SM case.
1311 And then at paragraph 99 on the following 2 page -- page 35 -- Mr. Parise encloses that material and 3 then at paragraph 100 on June 17th, 1998, Mr. Parise 4 faxes Dr. Cairns an additional excerpt from Justice 5 Dunn's decision. 6 And again, as I understand your evidence, 7 if Dr. Cairns received these various materials that 8 highlighted the deficiencies in Dr. Smith's approach in 9 the SM case, you were unaware of it? 10 DR. JAMES YOUNG: That's correct. 11 MR. MARK SANDLER: Would you have 12 expected Dr. Cairns to have shared that information with 13 you? 14 DR. JAMES YOUNG: That's a difficult 15 question. Not necessarily. I was not doing the 16 management of day-by-day cases. I was -- I was doing a 17 whole lot of other things; the financial side, settling 18 the cases that -- where families wanted a last appeal on 19 inquests, often doing the -- as cases were -- were 20 happening, doing the press things, but I was not case 21 managing cases, which is why I have such little 22 familiarity with -- you know, the odd case something 23 would happen, and I would be involved. 24 So Dr. Cairns would manage these things, 25 manage to the issues. He, like Dr. Chiasson and Dr.
1321 Porter, in inquests, came to me with issues that they 2 felt I either needed to know, or issues that -- where I 3 may have to resolve or finally resolve something, but I - 4 - most things they -- they came to me with what they 5 needed to come to me with. 6 MR. MARK SANDLER: But I guess what I'm 7 asking you is, would you have expected if Dr. Cairns 8 became aware of a judgment that was severely critical of 9 Dr. Smith's conduct in the SM Case and in the opinions 10 formed, would you expect him to bring that to your 11 attention? 12 DR. JAMES YOUNG: If he was aware of it, 13 I would -- it's certainly something I would want to know. 14 MR. MARK SANDLER: All right. Okay. Now 15 if you go to page 36, we actually see that Dr. Cairns 16 sworn affidavit on June 19th, 1998, in the CAS 17 proceedings. And in that affidavit he stated that he 18 agreed with Dr. Smith's findings concerning the cerebral 19 edema being severe. 20 And -- and in essence, shared the opinions 21 on the pathological issues that were contained in the 22 affidavit of Dr. Smith. Were you aware that Dr. Cairns 23 has sworn an affidavit on behalf of the CAS containing 24 that content? 25 DR. JAMES YOUNG: No, not -- I wasn't
1331 aware of that till around the time of the Ombudsman's -- 2 investigation, I would become aware of that. 3 MR. MARK SANDLER: All right. And in 4 your view, was that an appropriate affidavit to be sworn 5 by Dr. Cairns? 6 DR. JAMES YOUNG: I suspect his affidavit 7 went further then I certainly would -- personally -- 8 would have been prepared to go. I think it's okay to -- 9 to say, We're -- We're confident in the view. I'm not 10 sure I would endorse what he had seen under a microscope 11 or -- or his actual findings, because I wouldn't feel 12 qualified to do that. 13 But we have to make, as I've indicated 14 before, we have to make an evaluation from time to time 15 as to whether or not we stand by an opinion or don't 16 stand by an opinion in terms of getting more opinions, 17 and you know, how much re-investigation we do in a case. 18 So at some point you have to make some 19 value judgment, but I don't think I would have made as -- 20 as much of a -- a specific value judgment based on -- on 21 his actual findings. 22 MR. MARK SANDLER: Well, is -- is there a 23 distinction here to be drawn between the coroner's office 24 making a value judgment for the purposes of a death 25 investigation and swearing an affidavit that purports to
1341 reinforce the expertise of a pathologist? 2 DR. JAMES YOUNG: I think that's the line 3 I -- I wouldn't have been comfortable crossing. 4 MR. MARK SANDLER: Okay. Now, in 5 fairness, Dr. Cairns swears -- 6 DR. JAMES YOUNG: I'm sorry, can I just 7 add -- 8 MR. MARK SANDLER: Yes. 9 DR. JAMES YOUNG: -- I mean -- I think I 10 have to say that in light, and I'm not -- Dr. Cairns does 11 have much, much more experience in this area though, and 12 his -- all these years on the Committee, and you know, 13 has seen a lot of cases and sat a lot of hours doing 14 this, so I'm talking from my point of view and my 15 experience. 16 You know, I shouldn't -- you know, I 17 wouldn't do it. I don't know what his reasons were. 18 MR. MARK SANDLER: All right. And then 19 if we could go to 142283. And you'll see this in Volume 20 II, Tab 26. And I'm not sure you have to switch back and 21 forth to the volumes, because I'm only going to look at 22 it for -- for a moment. 23 So if you just look at the screen with me. 24 DR. JAMES YOUNG: Oh, this is the 25 affidavit, yes.
1351 MR. MARK SANDLER: So this is -- this is 2 a supplementary affidavit to the one (1) that I just 3 referred to. And -- and in this supplementary affidavit, 4 Dr. Cairns provides a -- or outlines a new protocol 5 interviewed -- sorry, implemented by the Office of the 6 Chief Coroner to be used in the investigation of sudden 7 and unexpected death. 8 And then skipping down to paragraph 3: 9 "He's been advised by Dr. Uzans and Dr. 10 Smith that Dr. Chen was neither aware 11 of or used the protocol in the 12 performance of the autopsy of Nicholas 13 Gagnon." 14 And if we could go to the next page, 15 please, and -- and it reflects that: 16 "Dr. Chen's no longer allowed by the 17 Coroner's Office to perform autopsies 18 on children under two (2) years of 19 age." 20 And, in fairness to you, I point up that 21 it appears that it appears that you've commissioned this 22 affidavit. Am I right? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: Okay. And -- and, 25 again, in fairness, this affidavit doesn't purport to
1361 express support in terms of the pathological opinions 2 that are being expressed by -- 3 DR. JAMES YOUNG: No. 4 MR. MARK SANDLER: -- Dr. Smith. 5 DR. JAMES YOUNG: No. 6 MR. MARK SANDLER: Were you aware of the 7 issue that had been raised concerning Dr. Chen? 8 DR. JAMES YOUNG: I was aware that -- 9 certainly, that people were unhappy with his performance 10 in the case and there were discussions. 11 MR. MARK SANDLER: All right. Were you 12 involved in -- in that aspect of this matter? 13 DR. JAMES YOUNG: Not beyond knowing that 14 I, Dr. Cairns and Dr. Chiasson would be discussing it. 15 MR. MARK SANDLER: All right. Well, now, 16 if you'd -- if you'd go with me to page 53 of this 17 overview report, and let's get to that -- that portion of 18 -- of the Nicholas case where we know that you had some 19 involvement. 20 And at paragraph 149, there's reference to 21 the fact that in December of 1998, Mr. Parise -- and, as 22 you recall, he was counsel for Children's Aid -- 23 expressed concerns to the OCCO and Dr. Smith about the 24 conflicting expert opinions in the case. 25 He suggested that another expert opinion,
1371 rather than just that of Dr. Cairns, would help support 2 Dr. Smith's testimony. 3 Then we see on the following page, page 4 54, paragraph 151, that the OCCO informed Mr. Keaney, who 5 is the defence counsel, that it had decided to obtain an 6 independent review by a forensic pathologist, Dr. Case, 7 who was Associate Professor of Pathology at St. Louis 8 University Heath Sciences Centre. 9 And can I take from your earlier comment 10 to the Commissioner that you had some role in -- in 11 identifying her as the independent expert to be retained? 12 DR. JAMES YOUNG: I believe so, yes. 13 MR. MARK SANDLER: All right. And, at 14 that point in time, were you aware of the issue that had 15 developed in -- in Nicholas, and -- and the need for an 16 independent expert? 17 DR. JAMES YOUNG: I was aware that there 18 was -- Dr. Smith had an opinion and that Dr. Halliday had 19 -- I -- I believe I knew it was three (3) at that point 20 in time; three (3) opinions. But I -- I don't know 21 whether it was two (2) or three (3), but I was -- I was 22 aware Dr. Halliday had an opinion and it was quite 23 different from Dr. Smiths, but that his opinion had 24 shifted as well. 25 I was asked did I know someone who would
1381 be a good person to contact and -- and Dr. Case came to 2 mind. 3 MR. MARK SANDLER: All right. And I -- 4 and I take it, given the conflict in the -- in the expert 5 opinions that were being offered, you -- you agreed that 6 it was a good idea to -- to have an independent expert 7 look at this afresh? 8 DR. JAMES YOUNG: Absolutely. 9 MR. MARK SANDLER: And then you see at 10 page 55 that -- that there was some difference, and -- 11 and how significant or not it will be for others to 12 determine -- but there was some differences as to who or 13 what spurred the decision to seek an independent review. 14 And as reflected at paragraph 154, on May 15 the 6th, '99, when you responded to Mr. Gagnon's 16 complaint to the Coroners' Council, you stated that: 17 "As soon as the Office of the Chief 18 Coroner became aware of the opinion of 19 Dr. Halliday, it was reviewed with Drs. 20 Cairns and Chiasson in detail, and a 21 decision was made to request a third 22 independent forensic pathologist." 23 And then, at paragraph 55: 24 "The Ombudsman determined that the OCCO 25 did not request an independent review
1391 until several months after Dr. Halliday 2 provided his expert -- his second 3 report, and that the request appeared 4 to have been prompted by the lawyer 5 from the CAS." 6 Do you accept that as -- as -- 7 DR. JAMES YOUNG: Yeah. 8 MR. MARK SANDLER: -- accurate? 9 DR. JAMES YOUNG: My -- my information at 10 the time, and my impression, to this day in my mind, was 11 that originally I had thought that we had done it and 12 we'd probably been more expeditious than we were. 13 But I certainly accept -- I accept the 14 Ombudsman's findings. 15 MR. MARK SANDLER: Okay. Now, if you'd - 16 - if you'd go to the opinion, itself, that was obtained, 17 and it's reflected at page 56 of the overview report. At 18 paragraph 157: 19 "We know that on March the 6th of 1999, 20 Dr. Case produced her report to Dr. 21 Chiasson. She concluded that the cause 22 and manner of Nicholas death should 23 have been designated as undetermined, 24 that there were no findings to 25 attribute death to head injury or
1401 asphyxial mechanism." 2 And -- and you'll see that in the quoted 3 passage: 4 "I would not attribute this death to a 5 head injury as there are no findings on 6 which to make such conclusion. The 7 presence of brain swelling or cerebral 8 edema was based primarily on the weight 9 of the brain at autopsy, and some mild 10 splitting of the sutures on 11 radiographs." 12 And she says: 13 "I see many infants and young children 14 dying from a variety of causes who have 15 similar amounts of brain swelling. It 16 should never be used as an isolated 17 finding to make a diagnosis of head 18 injury." 19 And at the bottom of the next quoted 20 paragraph, it says: 21 "The red discolouration noted in the 22 exhumationed skull in the right 23 parietal bone is not indicative of any 24 injury. Many young calvaria will look 25 similarly discoloured after
1411 exhumation." 2 Did that opinion come to be known to you? 3 DR. JAMES YOUNG: At some point, yes. 4 MR. MARK SANDLER: All right. And did 5 you have any concerns about the work that Dr. Smith had 6 done on this case as a result of reading that opinion? 7 DR. JAMES YOUNG: Yes, I did. 8 MR. MARK SANDLER: And did you meet with 9 Dr. Smith as a result? 10 DR. JAMES YOUNG: I did. I -- I read 11 through the -- all -- all of the pathology reports and I 12 considered them all. And I -- and I came to the 13 conclusion that I -- I accepted Dr. Case's report as 14 being the report that I felt best explained the case and 15 was the -- the -- the correct -- the correct designation 16 of this particular case. 17 MR. MARK SANDLER: All right. And you 18 said you met with Dr. Smith. 19 With reference to the date of March the 20 6th of 1999 when Dr. Case produced her report, can you -- 21 can you tell us when it was that you met with Dr. Smith? 22 DR. JAMES YOUNG: Very soon after. I 23 can't give you a precise date, but it was quite soon 24 after that, I believe. 25 MR. MARK SANDLER: And did you document
1421 the meeting in any way? 2 DR. JAMES YOUNG: No. 3 MR. MARK SANDLER: All right. Would it 4 have been wise to -- 5 DR. JAMES YOUNG: I remember it well. 6 Yes? 7 MR. MARK SANDLER: Would it have been 8 wise to document that meeting in some way? 9 DR. JAMES YOUNG: Yes. 10 MR. MARK SANDLER: All right. Describe, 11 if you would for the Commissioner what transpired at the 12 meeting. 13 DR. JAMES YOUNG: The meeting, as I 14 recall, was held in my Assistant Deputy Minister office. 15 I asked Dr. Smith to come and I -- that I 16 wanted to have a discussion about this particular case. 17 I indicated to him that I had reviewed the 18 -- the three (3) differing autopsy reports by three (3) 19 different people, and that the official position of the 20 Office of the Chief Coroner would be that we would accept 21 the report by Dr. Case, and that was how this -- the case 22 would be managed, and -- and -- and signed out. 23 I then began to -- I discussed with him 24 that I was concerned that his -- his report had gone too 25 far and that it was -- that he had viewed abuse
1431 essentially where -- where there was not good evidence 2 that it -- that it -- that it existed. 3 The analogy I gave him -- I talked to him 4 about the office of the Chief Coroner having to remain 5 credible and our pathology reports having to remain 6 credible; that I didn't want him on the leading edge of - 7 - you know, every time a paper came out, I didn't want us 8 to immediately jump to that sort of set of conclusions. 9 And in fact, what I expected was that, as 10 pathology and pathology views evolved I wanted him safely 11 within the largest group of people who would be of an 12 opinion, and not on the leading edge of opinions; that we 13 -- we -- we needed to be very -- if anything conservative 14 in our views. Clearly there would be evolution. Clearly 15 there would be changes but I didn't want him out on the 16 far edges of it. 17 The analogy I gave him, and I remember 18 giving it very -- very clearly was the analogy of a tree. 19 I said I -- you know, I would view right now that -- that 20 your view is out on one (1) -- at -- at the far end of 21 one (1) branch; Dr. Halliday's views were at the other 22 side of the tree in various places on the branch; and Dr. 23 Case was hugging the -- the trunk; and I want you hugging 24 the trunk from now on. 25 That's the -- that's the -- that's the
1441 direction I want to see the office of the Chief Coroner 2 in regards to these issues as they're evolving. 3 I also discussed with -- with Dr. Smith 4 the -- the timeliness of his reports and the need to -- 5 to improve on the timeliness of the reports. 6 And I discussed with him the -- the issue 7 around corridor consultations, and the -- the need to 8 document who he talked to and when he talked to them, and 9 make sure that, in fact, they -- they recalled the -- the 10 actual discussions themselves as well. 11 So those were the three (3) things that I 12 recall discussing. I believe that I -- I also told him 13 that these would appear in a -- in a memo in the near 14 future, and we produced the Pitfalls for Pathology memo 15 based on these -- these experiences. 16 And, certainly made no secret to -- to 17 anyone including the Ombudsman or the -- or ultimately to 18 Mr. Gagnon, that -- that these did form part of the -- 19 you know, where the nucleus of the memo, and that -- and 20 we provided copies of that memo to them ultimately. 21 MR. MARK SANDLER: All right. You 22 haven't made any reference at this -- up until this point 23 in time to what Dr. Smith said at the meeting. What did 24 he say? 25 DR. JAMES YOUNG: Not a lot. He didn't
1451 argue. He didn't debate with me. He -- he listened and 2 really said, as I recall, very little. He did -- 3 certainly didn't -- didn't say, This is all wrong, or I'm 4 -- I won't accept this council. 5 He listened and -- and I don't recall any 6 sort of long discussion or debate. It wasn't a terribly 7 long meeting. I'd said what I wanted to say, and said 8 it in the manner I wanted to say it, and I don't recall 9 him being terribly resistant. 10 I'm -- as with any meeting like that, I'm 11 -- he wasn't the most comfortable sitting there. I don't 12 think anybody would ever enjoy this kind of meeting, and 13 I'm sure he wasn't comfortable going through the issue. 14 But he certainly didn't -- didn't resist 15 it or balk it, or say, You're wrong or I won't do this or 16 anything. 17 MR. MARK SANDLER: Or -- or that you're 18 right, for that matter? 19 DR. JAMES YOUNG: Not that I recall, but 20 I -- I wouldn't want to put words in his mouth. I -- I 21 don't recall him saying, I'm overjoyed by what you're 22 telling me. And I -- but I don't recalling him saying, I 23 disagree either, so. 24 MR. MARK SANDLER: Now one can certainly 25 interpret Dr. Case's opinion as -- as not only differing
1461 from Dr. Smith on the bottom line, because we certainly 2 see that. 3 DR. JAMES YOUNG: Mm-hm. 4 MR. MARK SANDLER: But also articulating 5 a concern that -- that some of the findings that Dr. 6 Smith relied upon in the pathology to support his 7 diagnosis were non-specific or -- or did not support his 8 ultimate diagnosis in the case. 9 Did you have specific discussion with him 10 about those aspects? 11 DR. JAMES YOUNG: I - I can't recall. I 12 really don't -- I recall the analogy, and I recall that 13 part of the conversation very well. I don't -- I can't 14 be specific one (1) way or the other on the rest of the 15 conversation. 16 MR. MARK SANDLER: And just so that I 17 understand your position, because -- because you've used 18 the expression you didn't want him at the leading edge, 19 and -- and -- of every paper that came out. 20 Did you see this like a shaken baby case 21 in the sense that -- that he'd expressed an opinion that 22 -- that could be supported in the literature but -- but 23 didn't have sufficient consensus around it to be adopted 24 as a definitive opinion? Or did you see this in a case 25 where he'd gotten the pathology wrong? Or did you know?
1471 DR. JAMES YOUNG: Well, I don't remember 2 having -- having that conversation, specifically, with 3 him. But I think -- I certainly the -- the message I was 4 conveying was -- was more along the lines of, I don't 5 want you at the leading edge. 6 I don't want you over calling things. I 7 don't want you reading the literature and immediately 8 adopting every paper as soon as it comes out. I want you 9 -- you know, I want things to be -- I wanted -- I want 10 our pathology to be very -- very conservative and very 11 middle of the road; not -- not leading edge. 12 I mean that was the -- that's what was in 13 my mind, and that's what I was discussing. That was my 14 main theme anyway. 15 MR. MARK SANDLER: Did you know at the 16 time whether or not a forensic pathologist, either Dr. 17 Chiasson or somebody else, met with Dr. Smith as an 18 exercise to discuss the very specific findings that had 19 been made in the case, and -- and how valid or invalid 20 they were? 21 DR. JAMES YOUNG: I don't th -- I 22 wouldn't be -- I'm not aware of it, but I'm not sure. 23 MR. MARK SANDLER: Do you think that's an 24 exercise that should have been undertaken in this kind of 25 a situation?
1481 DR. JAMES YOUNG: Yeah. I -- in 2 retrospect, raising the issue the way you do, I think 3 that -- that -- mind you, I think you build that in as 4 one of many mechanisms that we're discussing here. 5 MR. MARK SANDLER: I mean, ideally, the 6 best mechanism is a review process before the report goes 7 out. 8 DR. JAMES YOUNG: Well, and that's been 9 my point all along. You want these things, you want to - 10 - you don't want it leaving the office until it's good, 11 but then you still have the problem that you have to -- 12 the report's only the report and the report on the 13 histology needs to be done early but then there has to be 14 the -- the review as well of what happens in Court 15 because that, as we've learned, that can be as big a 16 problem. 17 MR. MARK SANDLER: All right. If we can 18 follow on on the chronology then, at page 57 of the 19 overview report, we see that at paragraph 159 that after 20 Dr. Case's expert report was received by the OCCO and 21 provided to the parties, the CAS decided to vacate the 22 temporary orders that existed, withdraw the child 23 protection application, and withdraw the registration of 24 Ms. Gagnon on the Child Abuse Register. 25 And you certainly understood that that
1491 would be a byproduct of the OCCO accepting the opinion of 2 Dr. Case? 3 DR. JAMES YOUNG: Yes. 4 MR. MARK SANDLER: All right. Now, if we 5 can move forward to page 59, and at page 59 of the 6 overview report, reference is made to a further expert 7 report that was received by counsel for Ms. Gagnon and 8 Mr. Thibeault after the proceedings were withdrawn and 9 after the coroner's investigations statement was revised. 10 And this expert opinion came from Derek de 11 Sa, Professor of Pathology at the University of British 12 Columbia and Dr. de Sa said in part: 13 "I find it difficult to understand why 14 Dr. Smith reached the opinion he did. 15 The causes of cerebral edema are legion 16 and frankly, it's not appropriate to 17 assume automatically that cases of 18 cerebral edema, where no obvious cause 19 exists, are clearly traumatic in 20 origin." 21 And if we skip to the -- to the next page, 22 page 60, Dr. de Sa also says: 23 "If we were to adopt the line that all 24 such cases were automatically non- 25 accidental, we would be guilty of a
1501 gross over-representation of non- 2 accidental deaths and a marked 3 distortion of reality. I've taken the 4 liberty of discussing the general 5 details of this case with several 6 senior colleagues; we have a large 7 department and so on, none of us can 8 agree with Dr. Smith's representation." 9 And, at paragraph 165 it appears that Mr. 10 Keaney sent this report directed to Dr. Cairns and a note 11 on the OCCO's copy of the letter indicates that, Louise 12 Cater, Dr. Cairns' assistant, forwarded it to you and Dr. 13 Chiasson on June the 1st of 1999. 14 And -- and did you receive that report? 15 DR. JAMES YOUNG: Probably. I -- I don't 16 have a recollection of -- of the particular report, by -- 17 by this point in time I -- I have had my meeting and 18 dealt with Dr. Smith and -- and conveyed my views. I -- 19 I don't know. I -- I don't -- it doesn't ring any bells 20 with me. I, you know, I certainly didn't take any 21 further action as a result of -- of receiving it. 22 MR. MARK SANDLER: Okay. 23 DR. JAMES YOUNG: I have no doubt I 24 probably did. It would be in my pile of stuff that would 25 come in any given day.
1511 MR. MARK SANDLER: Now, if I can take you 2 to the complaint that Mr. Gagnon subsequently, sorry, 3 made during this period, -- 4 DR. JAMES YOUNG: Mm-hm. 5 MR. MARK SANDLER: -- and how you dealt 6 with it, -- 7 DR. JAMES YOUNG: Mm-hm. 8 MR. MARK SANDLER: -- and -- and I took 9 you to a little piece of this yesterday simply when we 10 were talking about your familiarity or lack of 11 familiarity with the SM case. So I want to revisit in 12 the chronology here. 13 DR. JAMES YOUNG: Okay. 14 MR. MARK SANDLER: All right. So if -- 15 if you'd look at page 61, paragraph 171, and we see that: 16 "Mr. Gagnon made a complaint to the 17 Coroners' Council on February the 17th, 18 1999, regarding Dr. Smith. He also 19 forwarded the complaint to Dr. Young 20 because of his concern that the 21 Coroners' Council was no longer 22 operational." 23 Just stopping there for a moment, the 24 Coroners' Council had been one of the -- the victims of - 25 - of the government cutbacks as -- as -- I'm not sure I
1521 want to get into that whole issue, but am I right that it 2 wasn't no longer -- it was no longer operating as of this 3 time period? 4 DR. JAMES YOUNG: Well, it's -- it's 5 interesting as I read that, I -- it may have not been 6 operational for one (1) of two (2) reasons. I don't 7 think it was disbanded at that time, although it may have 8 been, but it, essentially, had become non-operational for 9 a period of time because no cases came and there were no 10 appointments then made to the -- to the Coroners' 11 Council. 12 There was a period of two (2) or three (3) 13 years where -- where there was -- at least two (2) or 14 three (3) years -- it may have even been longer, where 15 there was not a single complaint came to Coroners' 16 Council, and in order for Coroners' Council to operate, 17 there were orders in Council -- had to be given by 18 government by the appointment's office. And so I think 19 what may have happened there is that the complaint came 20 in, and there was no Coroners' Council to hear it. 21 And they -- and so the issue would be, is 22 the government going to get busy and appoint a Coroners' 23 Council or not. But I'm not 100 percent positive. 24 MR. MARK SANDLER: All right. Well, -- 25 DR. JAMES YOUNG: But that terminology, I
1531 think, non -- no longer operational, probably is that 2 period of time. 3 MR. MARK SANDLER: Okay. And -- and just 4 for the Commissioner's benefit, whether it was during 5 this period of time or shortly thereafter, the Coroners' 6 Council was abolished through statute, at some point? 7 DR. JAMES YOUNG: Well, I think that may 8 have been part of the driving. They -- they were 9 looking, and there was no one appointed and they -- they 10 abolished it, that's right. One (1) -- one (1) day the 11 red tape commission recommended it and fairly unbeknownst 12 to us, and -- and then the Minister came back from 13 Cabinet and said, It's disbanded. 14 MR. MARK SANDLER: So let's look at -- at 15 how his complaint was dealt with. If the -- at the top 16 of page 62, we see that the OCCO declined initially to 17 deal with any review until the CAS proceedings were 18 resolved. 19 And -- and in fairness, the complaint came 20 in before the CAS proceedings were withdrawn on March the 21 23rd, 1999, so what you were simply reflecting at that 22 point of time is that until the CAS proceedings had -- 23 had ended, the OCCO was not prepared to deal with the 24 matter, do I have that right? 25 DR. JAMES YOUNG: Yes.
1541 MR. MARK SANDLER: Okay. Well, his 2 complaint, which -- which was later dealt with, by you, 3 is -- is set out in part at page 62, paragraph 172. And 4 I just want to highlight a few of the subparagraphs here 5 because I want to come back to visit how they were dealt 6 with when you respond to Mr. Gagnon. 7 He outlined a number of areas of concern 8 regarding Dr. Smith's conduct, and we'll see, for 9 example, Item B, that: 10 "Dr. Smith exaggerated Dr. Babin's 11 finding of mild diastasis into widely 12 split skull sutures. 13 C) Relied on coroner con -- corridor 14 consultations rather than requesting 15 written reports from specialists like 16 Dr. Armstrong and Dr. Jay. 17 D) Made contradictory findings 18 regarding a scalp injury. 19 E) Identified abnormal findings at the 20 second autopsy. Hemorrhagic 21 discolouration of the right parietal 22 bone and along the skull sutures, which 23 were, in fact, post-mortem artifacts." 24 And -- and I just wanted to highlight 25 those as illustrative when we look at how the complaint
1551 was responded to and systemically what can be said about 2 it. So -- so we then look at the fact at page 63, 3 paragraph 174, that Mr. Gagnon cited in some detail from 4 Justice Dunn's decision in the SM case. 5 And I don't intend to repeat any questions 6 arising out of that because you've provided your 7 explanation to the Commissioner about that. 8 DR. JAMES YOUNG: Mm-hm. 9 MR. MARK SANDLER: And then he writes to 10 Dr. Cairns and indicating in part that now that the CAS 11 matter was resolved, he expected it to be investigated. 12 And you'll see at the following page, page 64, Dr. Cairns 13 indicates that: 14 "Dr. Young was processing Mr. Gagnon's 15 complaint and hoped to reply in the 16 near future." 17 And if we can look at -- at your response 18 reflected at paragraph 177. You -- you indicate that 19 prior to sending the response, you circulated the draft 20 letter to Drs. Cairns and Chiasson, Dr. Porter, as well 21 as legal counsel in the case. 22 And does that accord with your 23 recollection? 24 DR. JAMES YOUNG: Yes. 25 MR. MARK SANDLER: Now, if -- if we can
1561 look at the actual response, which is at Volume VIII of 2 your materials, Tab 55. It's PFP807 -- 3 DR. JAMES YOUNG: I'm sorry, which tab? 4 MR. MARK SANDLER: It's Tab 55 at Volume 5 VIII. And it's PFP007885. And you'll see the first 6 paragraph directed to Mr. Gagnon on May the 6th of 1999 7 is: 8 "This is in regard to your letter and 9 the brief that you submitted on 10 February 17, 1999 complaining of the 11 actions of Dr. Smith. As you know, I 12 had to wait until the final disposition 13 of the case in the courts before 14 reviewing your issues. I've read your 15 brief in detail and considered it very 16 carefully." 17 So, stopping there, just to orient you, I 18 asked you about that line in the context of the SM 19 content of his complaint when we discussed this yesterday 20 afternoon. 21 Do you remember that? 22 DR. JAMES YOUNG: Mm-hm. 23 MR. MARK SANDLER: Okay. So I'm -- I'm 24 not going to go over that. Have -- have you looked at 25 his brief more recently in preparation for your -- for
1571 your testimony? 2 DR. JAMES YOUNG: Well, we -- we went 3 through part of it yesterday. 4 MR. MARK SANDLER: Right. 5 DR. JAMES YOUNG: Yeah. 6 MR. MARK SANDLER: And in addition to 7 what is contained in there about Justice Dunn, what I'm 8 going to suggest is there's very extensive critiques of 9 what Dr. Smith's work was in the -- in the Nicholas case. 10 Am I right? 11 DR. JAMES YOUNG: Yes. 12 MR. MARK SANDLER: Okay. Now, you go on 13 to say that many of the issues that you raised are 14 essential to the practice of forensic pathology. 15 "Dr. Chiasson and I recently developed 16 a memorandum which might be described 17 as 'Best Practices in Forensic 18 Pathology.' It's been distributed to 19 all coroners and pathologists in 20 Ontario. A copy is included for your 21 information." 22 So, stopping there for a moment, that's 23 the "pitfalls memorandum" that the Commissioner is 24 already familiar with and which you referred to a little 25 bit earlier.
1581 Am I right? 2 DR. JAMES YOUNG: That's correct. 3 MR. MARK SANDLER: Okay. And then -- and 4 then you go on to talk about the process that was engaged 5 in connection with -- with this case. You talk about a 6 team approach. You talk about the -- when the Office of 7 the Chief Coroner became aware of the opinion of Dr. 8 Halliday, it was reviewed in detail and a decision was 9 made to request a third independent forensic pathologist. 10 And -- and we've seen reference to that a 11 little earlier in the context of the Ombudsman. 12 DR. JAMES YOUNG: Yeah. 13 MR. MARK SANDLER: So at page 2, and this 14 is the part that -- that I'd like to discuss with you, if 15 I may. 16 "I met with Dr. Smith and discussed the 17 issues raised in your brief in 18 considerable detail. He had been given 19 a copy of your brief prior to the 20 meeting and was, therefore, familiar 21 with it." 22 And, again, stopping there for a moment. 23 That's the meeting that you've described to the 24 Commissioner a few moments ago. 25 Am I right?
1591 DR. JAMES YOUNG: Mm-hm. Yeah. 2 MR. MARK SANDLER: 3 "The variety of opinions held by Drs. 4 Halliday, Case, and Smith clearly 5 illustrates the complexity of the 6 pathology in this case. What all seem 7 to be agreeing upon at this point, and 8 it is also the view of our office, that 9 the case of the death of Nicholas is 10 appropriate classified as undetermined. 11 There's clearly a range of opinions 12 among the experts as to whether or not 13 they would tend to favour accident, 14 homicide or natural if the undetermined 15 classification was unavailable, but all 16 agree that we cannot establish a clear 17 means of death, and undetermined is the 18 correct category." 19 Now, just stopping there for -- for a 20 moment. Dr. de Sa certainly expressed the opinion -- 21 sorry -- Dr. Halliday certainly expressed the opinion. 22 Dr. Case certainly expressed the opinion. 23 What I want to ask you is did Dr. Smith 24 express the opinion that he was agreeing that the cause 25 of death is appropriately classified, in this case, as
1601 "undetermined"? 2 DR. JAMES YOUNG: I -- I'm -- don't know. 3 I -- I really couldn't recall that specific a detail from 4 that meeting. 5 MR. MARK SANDLER: All right. And, 6 similarly, when it says, "We all agree that we cannot 7 establish a clear means of death and 'undetermined' is 8 the correct category," you can't say whether Dr. Smith 9 signed on to the view that -- that now the appropriate 10 category is "undetermined." 11 You just don't know? 12 DR. JAMES YOUNG: If I wrote that, I 13 probably have that sense, but I -- I don't have a -- you 14 know, beyond what's on the page right now, I don't have 15 an independent recollection right now of that. 16 MR. MARK SANDLER: Okay. 17 DR. JAMES YOUNG: But, usually, if I 18 write something, it's because that's my belief. 19 MR. MARK SANDLER: All right. 20 DR. JAMES YOUNG: Not usually -- it 21 always is. 22 MR. MARK SANDLER: Okay. And what I want 23 to ask you is -- is this, that -- you remember, I -- I 24 took you to, and -- and in fairness to you, in -- in 25 effect, the opinion that -- that you've expressed or the
1611 response that you've articulated in the letter is that it 2 was a difficult case. 3 There are a range of reasonable opinions, 4 and Dr. Smith's opinion was one of the -- one of the 5 opinions in this -- in this very difficult case, and -- 6 and you wanted to communicate that sense to -- to the 7 Gagnon family. 8 Am I right? 9 DR. JAMES YOUNG: That's correct. 10 MR. MARK SANDLER: But, here's the 11 question I have for you: If the matter had proceeded -- 12 and we later see that it does go to the College, because 13 Mr. Gagnon is dissatisfied with your response, takes it 14 the College. Ultimately the Board decides that the 15 College does indeed have jurisdiction to the deal with 16 the matter. 17 Independent reviewers are appointed to 18 advise the College on what the results should be, and the 19 independent reviewers come back and express certain 20 criticisms as part of a caution that's provided to -- to 21 Dr. Smith. 22 And you -- you're aware of that history 23 that follows later on, I take it? 24 DR. JAMES YOUNG: Mm-hm. 25 MR. MARK SANDLER: In that process, and -
1621 - and again, systemically parties here will -- will have 2 a lot to say, I'm sure, about where discipline should 3 fall for the pathologist. 4 But in that process, Mr. Gagnon's 5 complaints on specific areas of concern are addressed and 6 responded to in writing. 7 And the question I have for you is that 8 recognizing that you responded in a general way to -- to 9 the -- I guess, most significant critique that Mr. Gagnon 10 provided, do you feel that this response reflected 11 appropriate oversight of what Dr. Smith had done in this 12 case and truly addressed the issues that were raised by 13 Mr. Gagnon in his complaint to you? 14 15 (BRIEF PAUSE) 16 17 DR. JAMES YOUNG: Well, I guess I'd say 18 to you, I don't think -- I don't think it's a perfect 19 oversight, and I don't -- I think, certainly, it shows 20 some room for improvement. 21 I think we took the reports, we -- we were 22 aware of the -- you know, the views of -- of, I believe 23 at this point in time, of the Ombudsmen as well. And, 24 you know, that -- that was reflected in -- in -- by 25 thinking what I did. What the meeting was, could it have
1631 been in more detail? Yes. 2 I -- you know, we -- we considered it 3 within the office, we passed it around. We agreed that 4 this dealt with the -- with the issues in the case. It - 5 - you know, we -- at the time it -- it seemed, you know, 6 it seemed to be a response, we had taken many actions and 7 considered the case. 8 You know, in the light of day with 9 everything you say and the -- and the College's report, 10 could it have been done better? Yes. 11 MR. MARK SANDLER: Okay. And, fair 12 enough. And the point that I'm making simply by 13 illustration is that there were some very significant 14 crit -- criticisms. 15 And I'm just about finished this area, 16 Commissioner, if you'll bear with me just for a couple of 17 minutes? 18 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: There were some very 22 serious criticism that Mr. Gagnon levelled that 23 ultimately were adopted by -- by the reviewers. For 24 example, the exaggeration of the finding of mild 25 diastasis into widely split skull sutures.
1641 And systemically, would it not have been 2 important to address that specific issue, both with Dr. 3 Smith in some way and also in responding to the complaint 4 that had been made by Mr. Gagnon? Is that fair? 5 DR. JAMES YOUNG: Well in a perfect 6 world. It wasn't the way we chose to -- to do it. There 7 had been, by this point in time, the -- you know, all of 8 the reviews and the review of the Ombudsmen and all the 9 various reports. 10 I -- we didn't -- we didn't choose to do 11 it in that manner, and in the ideal world I think you 12 would. I -- but, I mean, we didn't sit and have this 13 discussion saying, No, we won't do that. That wasn't in 14 our thinking at the time. We did what we thought was 15 appropriate. 16 We reviewed it and we had dealt with him 17 in a disciplinary manner. That seemed to be the 18 appropriate level of -- at the time. Are there lessons 19 to be learned for the future? Yes, there are. 20 MR. MARK SANDLER: Okay. And similarly, 21 when -- when I read to you Item E, which was that -- that 22 Dr. Smith had allegedly, according to Dr. -- sorry, Mr. 23 Gagnon and others, identified abnormal findings in the 24 right parietal bone, which were in fact postmortem 25 artifacts, that issue isn't dealt with at all in your
1651 response to Mr. Gagnon, and it's not dealt with at all in 2 any caution that you gave to Dr. Smith when you met with 3 him? 4 DR. JAMES YOUNG: Well I don't know 5 whether it was dealt with in a caution. But I -- I have 6 to tell you, you know, Mr. Gagnon's type of -- of letter, 7 with the -- the -- that level of detail is not unique. 8 People write letters about the deaths, 9 particularly suicides, and they will have a fifty (50) 10 page letter. And we don't -- we generally didn't go 11 through line-by-line-by-line, because we -- we couldn't 12 de -- devote the resource. And all -- all you -- our 13 experience is, if you respond to every line, what you end 14 up doing is creating pen pals, and you -- you -- one (1) 15 letter leads to fifty (50) other letters, and you never 16 get a resolution. 17 So they -- this level of detail, I -- I -- 18 you know, in this case should we have gone further? Yes. 19 I agree with you. 20 But you -- it's not -- you can't put it in 21 isolation either. It's not the only letter we would 22 receive that would have enormous number of points in it. 23 And -- and every time you write a letter and you dispute 24 one (1) and you -- you just end up -- it -- it's a never 25 ending debate that -- that goes on afterwards.
1661 MR. MARK SANDLER: See, I -- I'm -- I'm - 2 - I have focussed in part upon the response that you give 3 to Mr. Gagnon and whether that's truly responsive to what 4 his concerns are. 5 But if for example Dr. Smith were -- were, 6 as a matter of pathology generally, and not simply on 7 this case, misidentifying matters as significant when 8 indeed they were artifacts, that would be a concern that 9 would extend beyond the Nicholas case and would have to 10 be addressed in some way. 11 Do you agree? 12 DR. JAMES YOUNG: But the argument over 13 artifact and interpretation of what's artifact and not 14 isn't unique to this case. It's one (1) of the 15 fundamental things that gets argued in many criminal 16 cases, many days. 17 So it -- you know, you have to put it in 18 the context of what one (1) person sees or interprets 19 versus what another person sees and interprets. 20 You know, within pathology, that's why we 21 have experts, and that's why we have differing points of 22 view in Court. There's a -- there are lines when it's 23 unacceptable, but it's not just -- you know, by and large 24 just saying well I saw an artifact, I interpret it this 25 way; someone else takes the view that -- that it isn't an
1671 artifact; it's a significant finding. 2 That's the genesis of a whole lot of Court 3 cases. 4 MR. MARK SANDLER: Okay. 5 DR. JAMES YOUNG: You know, it's a pretty 6 common argument. 7 MR. MARK SANDLER: Thank you. 8 That would be a convenient time, 9 Commissioner, if we may. 10 COMMISSIONER STEPHEN GOUDGE: We will 11 break then until ten (10) past 2:00. 12 13 --- Upon recessing at 12:54 p.m. 14 --- Upon resuming at 2:10 p.m. 15 16 THE REGISTRAR: All rise. 17 COMMISSIONER STEPHEN GOUDGE: Mr. 18 Sandler...? 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: We had discussed some 22 of the events concerning the Nicholas case, and, in 23 particular, your conversation with Dr. Smith that 24 followed shortly after the March 6th, 1999, opinion 25 provided by Dr. Case?
1681 DR. JAMES YOUNG: Yes. 2 MR. MARK SANDLER: I want continue on and 3 -- and discuss with you other events that were occurring 4 in 1999. And in that respect, I'm going to take you 5 first to the Sharon case. And if you'd look with me at 6 the overview Volumes, Number II, Tab 13, which is the 7 Sharon overview report, 144453. 8 9 (BRIEF PAUSE) 10 11 MR. MARK SANDLER: And if you'd look at 12 page 99 of the overview report, please. 13 14 (BRIEF PAUSE) 15 16 DR. JAMES YOUNG: Sorry, which -- which 17 page? 18 MR. MARK SANDLER: Page 99. 19 DR. JAMES YOUNG: Okay. 20 21 (BRIEF PAUSE) 22 23 MR. MARK SANDLER: And I'm looking at 24 paragraph 216, which sets out a memorandum that Dr. 25 Cairns prepared that articulates in part what his
1691 understanding was as to the events that occurred in 2 February, 1999, in the States. 3 Did you attend a meeting of the American 4 Academy of Forensic Sciences in February of 1999? 5 DR. JAMES YOUNG: Yes, I did. 6 MR. MARK SANDLER: And what transpired at 7 that meeting that pertains to the Sharon case? 8 DR. JAMES YOUNG: The -- these meetings, 9 as the Commissioner has heard, are -- are very large, 10 multidisciplinary meetings. And certainly there are a 11 lot of scientific sessions, but there's a fair amount of 12 -- of discussion that takes place as you run into people 13 in various places around the meeting, as well. 14 I -- during that meeting, I ran into Dr. 15 Michael Babin from New York, who indicated some 16 acquaintance with this particular case and -- and 17 indicated to me that he was aware that there were 18 opinions that the injuries in question were from dog 19 bites. 20 Michael Babin had -- was the former 21 medical exam -- Chief Medical Examiner of New York city, 22 and then he -- he works now for New York State police. 23 And he and I, in fact, have done a number of -- of 24 investigations and cases together. 25 So I -- I know Michael quite well. His
1701 odontologist, or forensic dentist, who does work with him 2 is Dr. Lowell Levine. I -- Lowell is always at the 3 meeting as well and he indicated to me that he and -- he 4 was with Michael or involved with Michael and was aware 5 of this particular case, as well. 6 And then I -- I also ran into Dr. Bob 7 Dorion, who's the forensic dentist who does the work the 8 Quebec lab in -- in Montreal. And -- and he indicated he 9 was involved in the case and that he thought it was a dog 10 bite case, as well. 11 So I had talked to three (3) people who 12 were involved, Dr. Dorion the most and the others 13 peripherally, in the case indicating to me that they had 14 problems with Dr. Smith's findings at that point in time. 15 MR. MARK SANDLER: Now, just stopping 16 there for a moment. Was Dr. Ferris' name mentioned in 17 the course of that discussion? 18 DR. JAMES YOUNG: No, I don't think 19 became aware of Dr. Ferris' involvement until -- until 20 the exhumation. 21 MR. MARK SANDLER: All right. And we've 22 heard -- 23 DR. JAMES YOUNG: I do know Dr. Ferris as 24 well, though. 25 MR. MARK SANDLER: All right. We've
1711 heard from Dr. Cairns what his understanding of the 2 discussion was. And Dr. Cairns said that the expression, 3 at least as communicated to -- to him, was that these 4 individuals -- some or all of these individuals were 5 concerned about a quote: 6 "Miscarriage of justice that might be 7 occurring up in Canada." 8 Does that resonate with what you recollect 9 of the meeting? 10 DR. JAMES YOUNG: Yes, yes. 11 MR. MARK SANDLER: And to be clear, they 12 were telling you that they thought it was a dog bite 13 case. This was in the context of what you understood to 14 be an opinion that had been expressed by Dr. Smith to the 15 effect that the injuries had occasioned by stab wounds, 16 right? 17 DR. JAMES YOUNG: Yeah, in fact, I -- I 18 don't believe prior to this I even knew about the case. 19 But I -- that's what I was told by them, that this was 20 being called stab wounds originally, and they -- they 21 felt that it was dog bites. 22 MR. MARK SANDLER: All right. And did 23 this cause concern for you? 24 DR. JAMES YOUNG: Yes. 25 MR. MARK SANDLER: And to state the
1721 obvious, why did it cause concern for you? 2 DR. JAMES YOUNG: Well I -- I -- first of 3 all, you know, we're concerned whenever there's that much 4 of a disagreement. I've run into three (3) people that I 5 know that have -- have all some involvement to some 6 degree in this case. 7 Certainly the "miscarriage of justice" 8 rings bells in my head, so I -- I want to know at this 9 point what's going on with this case, and why are we at 10 such polar opposites in terms of what's happening? 11 MR. MARK SANDLER: And -- 12 COMMISSIONER STEPHEN GOUDGE: Did you 13 know how Dr. Babin and Dr. Levine had become familiar 14 with the case? Had they seen photographs or something? 15 DR. JAMES YOUNG: I think they had 16 probably been involved with -- likely what happened was 17 that Dr. Dorion spoke to Dr. Levine, and Dr. Levine 18 discusses -- you know, he and Dr. Babin's offices are 19 right near each other in the same building and they -- 20 they're good friends, so they -- he would have discussed 21 it with him, would be my guess of what happened. 22 COMMISSIONER STEPHEN GOUDGE: Dr. Cairns 23 told me that he assumed they had seen the photographs or 24 seen photographs? 25 DR. JAMES YOUNG: I -- I'm not sure
1731 whether they -- 2 COMMISSIONER STEPHEN GOUDGE: You just do 3 not know? 4 DR. JAMES YOUNG: I just don't know. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Okay. So, in the 8 course of the discussions with Dr. Babin and Dr. Levine 9 and Dr. Dorion, did they express their views in -- in 10 strong terms, or mild terms or some combination? 11 And particularly I'm interested insofar as 12 it related to Dr. Smith's opinion that these were stab 13 wounds? 14 DR. JAMES YOUNG: Oh I think that it was 15 -- well particularly Dr. Dorion's were strong. He was 16 very strong. The others were as well. I mean, I think - 17 - I mean, there was no doubt in my mind what they thought 18 or -- and no doubt in my mind we had to investigate 19 further. 20 MR. MARK SANDLER: Okay. Now, just 21 stopping there for a moment, as you indicated before 22 lunch, shortly after March of 1999, you met with Dr. 23 Smith in connection with the Nicholas matter. 24 Did you discuss the Sharon matter and your 25 concerns that had been raised as a result of your
1741 attendance in the United States? 2 DR. JAMES YOUNG: I don't recall. I 3 don't recall having done so, and I don't -- no, I -- I 4 don't recall, and I don't recall that linkage being made, 5 no. 6 MR. MARK SANDLER: All right. We know 7 from the overview report and Sharon -- I may come back to 8 that point in a moment, but just continuing on in the 9 overview report, if you go to 101 -- page 101. 10 We see at paragraph 223, that the second 11 autopsy was conducted by Dr. Chiasson on July the 13th of 12 1999 at the coroner's building. And a variety of 13 individuals were there, including Dr. Ferris and Dr. 14 Dorion on behalf of the defence. 15 And I'll just stop there for a moment. 16 Were you aware of this second autopsy being conducted by 17 Dr. Chiasson in July of 1999? 18 DR. JAMES YOUNG: Yes. 19 MR. MARK SANDLER: And fairly shortly 20 thereafter, did you become aware of what the opinions 21 were that had been formed as a result of that second 22 autopsy? 23 DR. JAMES YOUNG: I believe so, yes. I 24 was there for part of the second autopsy. 25 MR. MARK SANDLER: All right.
1751 DR. JAMES YOUNG: I was in the room 2 during the initial part of it. 3 MR. MARK SANDLER: And -- and is it fair 4 to say that the second autopsy and the opinions that were 5 formed there cast some serious doubt upon the original 6 opinion that had been expressed by Dr. Smith? 7 DR. JAMES YOUNG: Cast considerable doubt 8 on most of the opinion that Dr. -- and some -- 9 essentially, with the second autopsy, there was agreement 10 that all -- on all of the wounds except two (2). And on 11 the matter of two (2) of the wounds, Dr. Smith still held 12 the view that they were stab wounds, Dr. Chiasson held 13 the view that he didn't know, and Dr. Dorion and others 14 held the view that they were dog wounds. 15 So the matter of all the other wounds but 16 these two (2) was resolved at that point in time. 17 MR. MARK SANDLER: All right. So -- 18 DR. JAMES YOUNG: And I think that -- 19 that day, in fact. 20 MR. MARK SANDLER: All right. So a 21 couple of points arising out of that. So that day there 22 appeared to be a consensus of those in the room that at 23 least a significant number, you say all but two (2) of 24 the wounds were attributable to dog bites. 25 Am I right?
1761 DR. JAMES YOUNG: Yes. 2 MR. MARK SANDLER: And did that cause you 3 some concern about the original opinion that had been 4 expressed by Dr. Smith. 5 DR. JAMES YOUNG: Well, I mean, the part 6 of the story we haven't -- there -- there is more to the 7 story that relates to how he arrived at the original 8 conclusion and it think it's, you know, my opinion has to 9 be taken in context of that as well. 10 MR. MARK SANDLER: Okay. So tell us 11 about that. 12 DR. JAMES YOUNG: Well, the original 13 story is I -- as I understood it, was that the -- that 14 this -- that Sharon's body was brought to Toronto and at 15 the time that the body was -- was brought to Toronto 16 there were certainly multiple wounds. And the police, in 17 fact, at that time brought a number of -- of knives and 18 scissors and potential weapons that they asked whether or 19 not these might in fact be the -- the cause of the -- of 20 the injuries. 21 The autopsy was done at -- in Toronto 22 rather -- at the morgue rather than at Sick Children's 23 and -- and Dr. Smith was assisted at that point in time 24 by our senior pathology assistant, Barry Blenkinsop, who 25 had been around and had a huge amount of -- of
1771 experience. 2 As I understand it some -- some days after 3 the -- after the autopsy, at least some period of time 4 after the autopsy, the issue of whether or not these were 5 dog injuries arose; not -- not at the time of the 6 autopsy. 7 In fact, as I understood it at the time of 8 the autopsy, no one knew about the dog, there had not 9 been a dog in the house and the -- and there was no -- 10 there was quite a bloody scene in the -- there were no 11 dog prints in the scene at that point in time. 12 MR. MARK SANDLER: Just stopping there to 13 ask you: Where did you acquire that understanding, 14 because there may be different understandings based upon 15 the material that had been filed, so...? 16 DR. JAMES YOUNG: That was my 17 understanding based on information that was relayed to me 18 but I couldn't tell you who. But that's the -- that's 19 the information that I have, you know, at the time, and I 20 -- I remember the story very well. That was the 21 information that I was told but I -- I couldn't tell you 22 at this point, eight (8) years later, who told me. 23 MR. MARK SANDLER: Did you have a 24 discussion with Dr. Smith about -- about the case -- 25 DR. JAMES YOUNG: Well --
1781 MR. MARK SANDLER: -- back then? 2 DR. JAMES YOUNG: Dr. -- Dr. Cairns and 3 Dr. Chiasson firstly went to Kingston and spoke with -- 4 they spoke to Dr. Smith and Dr. Woods and then they went 5 to Kingston and spoke with the Crown Attorney and the 6 decision was made to do the exhumation. 7 So I didn't directly have a talk to Dr. 8 Smith about it, that I recall. But they -- they 9 certainly did and they were -- they had carriage of the 10 case at that point. 11 MR. MARK SANDLER: All right. I 12 interrupted your narrative. You were indicating the 13 context within which you wanted to respond to my question 14 as to whether you had some concerns about these -- 15 DR. JAMES YOUNG: Yeah, so -- 16 MR. MARK SANDLER: -- being expressed by 17 Dr. Smith. 18 DR. JAMES YOUNG: So I think, you know, 19 the, I mean, the concerns obviously are how do you end up 20 with -- with bit injuries and -- and animal wounds and 21 call them -- call them wounds from some type of a weapon? 22 Having been told that story, what I was told is that -- 23 that people were looking for a weapon, looking for a 24 cause around a weapon and -- and not looking for a dog, 25 and they went down that path at the time.
1791 And certainly what surprised me about it 2 if it was an obvious dog case is that, you know, Barry 3 Blenkinsop was probably one of the most experienced 4 pathology assistants that -- anywhere I've ever run into; 5 he had done thousands of cases and seen pretty much 6 everything that was there, and he certainly was there and 7 was, you know, was there that day when the discussions 8 were taking place and went along that this seemed to be - 9 - these seemed to be wounds. 10 So I -- I was surprised by the -- the 11 result but not, you know, I felt that what had happened 12 is they had gotten information and gone down a path and 13 the -- the critical issue to me was were they willing to 14 back up and reconsider and -- and move down another path. 15 MR. MARK SANDLER: And were you aware 16 back during the time of the exhumation that Dr. Smith had 17 testified to the effect that it was as likely that there 18 were dog bites as injuries on the body of Sharon as polar 19 bear bites? 20 DR. JAMES YOUNG: No. No, I would -- I - 21 - I wasn't aware of any of the -- any of the sort of the 22 -- the arrest and the preliminary trial or any of the -- 23 any of that information. I was aware of essentially what 24 I've told you. 25 MR. MARK SANDLER: All right. Would that
1801 have concerned you, had you known that? 2 DR. JAMES YOUNG: Well, I would have 3 thought it was a rather -- rather poor analogy and -- and 4 not a -- you know, a -- a particularly -- I -- I don't 5 know when that comment is relative to when he was look -- 6 when he was asked to look at them again, but it -- it 7 certainly, I think, is an inappropriate and -- and, you 8 know, could reflect a closed mind. 9 MR. MARK SANDLER: Okay. Now, so if we 10 can just leave Sharon for a moment. Well, no I -- 11 actually I'll ask you something else. Just continuing on 12 and I will go out of the chronology to -- to some point 13 just to ask you -- later on, you were involved in 14 obtaining or facilitating a forensic anthropology opinion 15 on the Sharon case, were you not? 16 DR. JAMES YOUNG: No. No, I think Dr. 17 Cairns did that. 18 MR. MARK SANDLER: All right. 19 DR. JAMES YOUNG: Is that the -- the 20 issue -- 21 MR. MARK SANDLER: This is Dr. Symes. 22 DR. JAMES YOUNG: Yeah. I don't know Dr. 23 Symes. I think it's -- Dr. Cairns did that. 24 MR. MARK SANDLER: All right. So you -- 25 were you aware that that was taking place?
1811 DR. JAMES YOUNG: I knew there was an 2 issue on some marks, and the answer that came back is 3 that they might be scalpel marks from the autopsy. 4 That's -- that's my knowledge of that. 5 MR. MARK SANDLER: Okay. So let's just 6 leave Sharon for a moment, so that right now in 1999 7 we've got the Nicholas and the -- the concerns that 8 you've articulated to Dr. Smith, we've got the Sharon 9 case and -- and the issue raised about stab wounds versus 10 dog bites, within the contest as you've described it in 11 your evidence now. 12 And -- and if I can take you to the -- 13 Volume I of the overview reports, which is the Jenna 14 overview at Tab 7. And this is 144684. And if I can 15 take you to page 60. 16 And paragraph 98 reflects that on May the 17 26th of 1999, Dr. Porter wrote to Mr. Gillconson 18 (phonetic), who's the Crown Attorney in relation to this 19 matter, and she concluded that: 20 "The time between the injuries 21 sustained by Jenna and her death had to 22 be less than six (6) hours. There may 23 be different opinions from pathologists 24 given different experiences with 25 pediatric trauma cases to how much
1821 less, but I think all have agreed that 2 certainly not more than six (6) hours. 3 As you have correctly stated, the 4 interest of justice demand the best 5 possible opinions be sought..." 6 And -- and she goes on to talk about 7 pathologists and how they fit into that statement. And 8 then she says: 9 "The pathologist may be asked or 10 tempted to give an opinion as 11 physicians about other specialties. 12 The prudent course would be to defer 13 those questions to persons whose 14 expertise lie in the areas of 15 toxicology or active medical practice. 16 In cases such as this, there may be no 17 clear cut answer that can narrow the 18 timing to other than a few hours, with 19 a range based on all available and 20 reliable information. I believe it 21 would be reasonable to conclude that 22 the injury that caused Jenna's death 23 occurred less than six (6) hours before 24 she became lifeless in the care of 25 babysitter. Based on the opinion of
1831 the pathologist, and on all the 2 information available to me, I cannot 3 give an opinion as to how much less 4 than six (6) hours." 5 And we actually see from page 62, the 6 following page, at paragraph 102 that: 7 "On June 15, 1999 the Crown withdrew 8 the second degree murder charge against 9 Ms. Waudby because the medical evidence 10 could not substantiate that she had 11 care of Jenna at the time of the fatal 12 injury. According to the Peterborough 13 examiner in asking that the charge be 14 withdrawn, Mr. Wilkinson (phonetic) 15 stated the prosecution was relying on 16 certain medical opinion evidence that 17 has shifted dramatically. The 18 prosecution takes the position there's 19 no reasonable prospect of conviction". 20 Now, several questions arising out of 21 that. The first is that in 1999, were you aware that Dr. 22 Porter had expressed an opinion as to time of death as -- 23 sorry -- time of infliction of injuries as described in 24 paragraph 98 of the overview report? 25 DR. JAMES YOUNG: No, I was not.
1841 MR. MARK SANDLER: And, similarly, were 2 you aware, as reflected at paragraph 102, that -- that 3 the Crown withdrew the second degree murder charge 4 against Ms. Waudby on the basis articulated in that 5 paragraph? 6 DR. JAMES YOUNG: No. 7 MR. MARK SANDLER: And, can you help me 8 out a little bit. As -- as the Chief Coroner, would you 9 expect to be kept apprised both as to the fact that Dr. 10 Porter had expressed an opinion that was significantly 11 different, I suggest, than the opinion that you'd been 12 made aware of earlier by Dr. Smith, and that charges had 13 been withdrawn, allegedly, on the basis that the medical 14 evidence had shifted dramatically? 15 DR. JAMES YOUNG: Not necessarily. They 16 -- I -- you know, when it happens, where I am, what else 17 is happening all determines what I might know and what I 18 may not. But if Dr. Porter was managing it, you -- you 19 know, I -- I was not that actively involved in this case 20 either. I went to one (2) meeting and that was it. 21 I -- I wouldn't necessarily -- I have no 22 idea what I was doing at that period in 1999, but, you 23 know, I -- I would come and go and I would be around 24 sometimes. But I wouldn't necessarily be aware that -- 25 that this was happening.
1851 MR. MARK SANDLER: Well, I guess the 2 issue is that in the -- in the Jenna case, apparently -- 3 and I say based, at the very least, upon how this has 4 been described in the public sector, we have a case where 5 a second degree murder charge has been dropped against an 6 individual on the basis, allegedly, of shifting medical 7 opinion. 8 And help me out as to whether or not one 9 would expect, in the ordinary course, that the Chief 10 Coroner's Office would be involved in, privy to and 11 concerned about that issue. 12 DR. JAMES YOUNG: Well, you know, if you 13 -- the shifting medical opinion, as -- as we went through 14 this morning, involves a narrowing of the time line which 15 then eliminates the -- the mother from being charged. 16 The -- and it -- it comes about with -- 17 with increased number of experts, then narrowing that 18 point. And -- and narrowing the time down, and that 19 results, then, in -- in the withdrawal of the charges. 20 That -- you know, as you characterize it 21 now is very different then what it may have appeared at 22 the time. You know it, you -- you have the benefit of a 23 number of other reviews and -- and that -- that we didn't 24 have benefit of at -- at this point in time. 25 The -- the time line had been narrowing
1861 down. Dr. Porter said, herself, You add other elements 2 such as toxicology and -- and clinical, and that narrows 3 the times down. So it -- you know, we don't have the 4 reviews of -- of his pathology at this point in time. 5 What we have is -- is increased -- we have clinical 6 information that now narrows it down further. 7 But we did not have the other -- the other 8 reports, so that gave a better idea to the Crown. That 9 results in the -- in the charge being withdrawn. 10 I didn't know about it at that point in 11 time, but I'm not -- I'm not overly critical of anybody 12 for not telling me. And, besides, I don't know with any 13 certainty where I was or what else I was doing at that 14 point in time. 15 I think the nature of this particular case 16 was not being -- it was not bad pathology that was the 17 issue; it was the time of death was the issue that 18 everyone was focussed on -- or the time of the injuries, 19 I should say. 20 MR. MARK SANDLER: So, do you not see it 21 as a systemic issue, kind of putting together four (4) 22 cases right now. And -- and as I've heard your evidence, 23 we're now at a point in 1999 where four (4) things have 24 happened. 25 On the Nicholas case, we've heard that --
1871 that Dr. Smith expressed an opinion that was found to be 2 wanting by the independent opinion that you had obtained, 3 Dr. Case. And you had felt sufficiently concerned that 4 you had met with him and cautioned him about it. 5 Second of all, we have a scenario where -- 6 where there had, according to the Crown -- and I'll put 7 it on that basis, and I don't want you to look to the 8 later reviews or anything like that. 9 But according to the Crown in a very 10 public forum, medical opinion evidence had shifted to a 11 point that a murder trial had to be withdrawn after the 12 accused had been subjected to the process for a 13 significant period of time. 14 And -- and you didn't appear to know 15 anything about it. Third, you've got a situation where 16 you've been advised that -- that a pathologist working 17 within the coronial system, Dr. Smith, has opined that -- 18 that stab wounds explain the death of Sharon. 19 And very significant evidence has been 20 presented to suggest that it may well indeed be dog 21 bites, and the exhumation shows that at least a number of 22 the wounds that were described as stab wounds are now 23 definitively dog bites. 24 And -- so that's Jenna, that's Sharon, and 25 -- and that's Nicholas. And as well, you've got in a
1881 very public way, various pieces of information being 2 circulated about the SM Case, which you've indicated not 3 withstanding that fact, didn't make its way to your 4 attention. 5 And that pertained to a case where a young 6 person had been charged and prosecuted, and only 7 ultimately acquitted after significant expense and 8 difficulty on the part of the young person in the family. 9 Do you have some concern looking back as 10 to how you as the Chief Coroner or the Chief Coroner's 11 Office dealt with those issues as they were making their 12 way through the system? 13 DR. JAMES YOUNG: Well, yeah, I mean I 14 don't agree with your characterization to begin with, 15 because I -- what I knew and how -- what I was acting on 16 was different then what you've just portrayed. 17 I acknowledged yesterday that -- that the 18 -- that the Amber case was very serious, and I wish I 19 knew Dr. -- Justice Jun -- Dunn's view of -- of that 20 case. I certainly in retrospect would -- that 21 information would have been very useful. 22 I was also in that case, unfortunately, 23 misled by the comments about Justice Dunn, and the -- and 24 the trial. So in my mind that case, while I knew it 25 existed, and I knew there was still some controversy
1891 about it, did not seem to me to be a -- a problem to the 2 degree that -- it should have been, it should have been 3 more, but it was not first and foremost in my -- in my 4 mind, and it certainly wasn't something anyone else was 5 telling me about as well. 6 As far as the -- I had dealt with and 7 agreed as I've illustrated in the Gagnon case, I've told 8 you what I knew, and I told you what actions we took. 9 And I agreed there was a -- was an issue 10 and we had dealt with that issue. In my view, you know, 11 I -- first of all, I didn't know about any -- most of the 12 elements of the Jenna case, so I -- I can't consider what 13 I don't know. 14 And I -- I don't know about these things, 15 and -- and so that I can't put that into my -- into my 16 thinking, because it's not -- it's not in the realm of 17 what I know. 18 MR. MARK SANDLER: I -- I think -- sorry. 19 DR. JAMES YOUNG: I do know about -- I do 20 know about the Reynold's Case. I'm bothered by elements 21 of the Reynold's Case, but I also have questions about 22 the Reynold's Case. And I have a certain degree of -- of 23 -- the -- the major issue in my mind in Reynolds was the 24 ch -- making sure that people were willing to change 25 their mind and reconsider.
1901 I'm not as convinced as -- as some people 2 that -- that the mis-diagnosis to begin with was -- you 3 know, was -- there are those that characterize it as 4 inexcusable and -- and beyond belief. Well, you know, I 5 -- I give the -- a little bit of the benefit of the dou - 6 - the doubt to Dr. Smith, because I had my most seasoned 7 pathology assistant there who came to the same 8 conclusion, and I -- you know, unfortunately, he -- he's 9 died too, but I -- I know that he -- I had great 10 confidence in what he had seen and done. 11 And so I don't think it was that simple. 12 It think there were issues within it. And I think the 13 case still rema -- has -- has many issues surrounding it 14 that -- that have never been answered to this point in 15 time. 16 Were there problems with it? In 17 retrospect obviously. But -- but even -- you know, and 18 there were reasons that the Crown withdrew it. But I 19 don't think it was quite as -- as black and white, but 20 what I really had then, is I had some problems with the 21 Reynolds case, and I had the Gagnon case. I, wrongly -- 22 but was dismissing the XXX case as not being significant 23 and was unaware of cases in -- in -- oh, excuse me, in 24 Amber. 25 MR. MARK SANDLER: Yeah.
1911 DR. JAMES YOUNG: I -- and I -- and I was 2 unaware of the Jenna case being a problem. So, I -- I 3 didn't have that degree of information. I made the 4 judgments bases on what I knew at the time. 5 MR. MARK SANDLER: All right. And I 6 tried to frame the question in a way that -- that 7 articulated what you've said was your knowledge or lack 8 of knowledge. So, the question -- 9 DR. JAMES YOUNG: Oh, and I -- I -- 10 MR. MARK SANDLER: -- all right? 11 DR. JAMES YOUNG: -- get that. Yeah. 12 MR. MARK SANDLER: So the question that I 13 pose to you is a little bit different is, do you see, as 14 a systemic issue the fact that you didn't know about 15 these things as the Chief Coroner? 16 MR. MARK SANDLER: Well, I mean, I think 17 -- I think to answer that completely, we need to spend 18 some time and -- and discuss what the Chief Coroner did 19 and didn't do and how things ran. 20 I mean, we haven't -- we haven't -- it 21 sounds like, yes, everything flows to the Chief Coroner 22 and that's the way it is. And, you know, at that point 23 in time, that wasn't the way the office ran. And -- and, 24 you know, that -- so that I'm not surprised I didn't know 25 everything, because that's not the -- the way we -- we
1921 were running. 2 But, in a perfect system, yes. Everything 3 would -- all these sort of things would -- but, you know, 4 to some extent, they flowed to other people. 5 MR. MARK SANDLER: Okay. Now, if you'd 6 go with me to Volume IV of the white binders, Tab 13, and 7 this is PFP140888. 8 DR. JAMES YOUNG: Which tab? Sorry? 9 MR. MARK SANDLER: Sorry. Tab 13. 10 11 (BRIEF PAUSE) 12 13 DR. JAMES YOUNG: Yep. 14 MR. MARK SANDLER: And I already had some 15 discussion with you about this topic yesterday evening. 16 Just to orient you again, this is -- contained in this 17 document is a statement of claim on behalf of Charles 18 Smith against the Canadian Broadcasting Corporation, and 19 attached to it is a transcript of The Fifth Estate, which 20 was aired on November the 10th of 1999. 21 And you remember we had a discussion about 22 this the other day? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: And -- and again, and 25 I don't want to retread an area that -- that we've
1931 covered fairly thoroughly, but you've indicated yesterday 2 that you didn't view the program either when it was aired 3 or -- or subsequently. 4 And you took from -- from others that 5 there was nothing new in it and -- and that was the 6 extent of your knowledge about what was contained in it. 7 Am I right so far? 8 DR. JAMES YOUNG: Yes. 9 MR. MARK SANDLER: All right. And you'd 10 agree with me that, perhaps, systemically, if a news -- 11 if a broadcast, whether one that you respect or 12 disrespect, articulates serious concerns about individual 13 cases in which coronial work or pathology work is -- is 14 involved, that perhaps one would be well advised to at 15 least have someone delegated to -- to review the merits 16 of it and -- and address it on that basis? 17 18 (BRIEF PAUSE) 19 20 MR. MARK SANDLER: Yes, but I think you 21 have to recognize there -- there are -- stories appear on 22 a pretty regular basis, some of which are accurate, some 23 of which are not. And we -- we don't drive our office by 24 -- by -- necessarily by this. 25 And I -- you know, and certainly, you
1941 know, I -- I also would expect, if -- if this really was 2 -- had new or very significant information, either other 3 news media outlets would pick it up or people would talk 4 to me about it. You know, during the entire course of 5 this, no Crown attorney, no defence attorney, no police 6 officer, no one called me and said, All these things are 7 going on. We want a review of Dr. Smith. 8 If -- if these issues are going on and 9 everybody's aware of them, they -- they were awfully, 10 awfully quiet about them. 11 And so, no, I didn't take action on this 12 particular story, because no one said very much to me 13 about it. I wasn't around, I don't think, when it was 14 broadcast. 15 MR. MARK SANDLER: And -- and that was 16 the reason why you didn't take action on it? 17 DR. JAMES YOUNG: Well, in part. And I 18 also, you know, I -- I, as you have alluded to, I'm not a 19 particular fan of The Fifth Estate. I'm not a -- don't 20 believe that it represents the finest in Canadian 21 journalism. 22 MR. MARK SANDLER: All right. But you 23 didn't even discuss with Dr. Cairns what his 24 participation had been in the -- in the broadcast and 25 what he had to say about it, or did you?
1951 DR. JAMES YOUNG: I don't think I did. I 2 -- I don't remember -- I don't remember discussing it 3 with him. But no -- as I said, no one -- not just Dr. 4 Cairns, no one came to me and said, I was watching this 5 last night. What's going on? I watched it last week, I 6 watched it anytime, and you know, this is -- you know, 7 this has new information, this has dramatic information. 8 It -- it was broadcast, and then I never 9 heard a thing about it, so... 10 MR. MARK SANDLER: And when you said 11 yesterday that -- that somebody said "nothing new here," 12 I mean, did somebody at least communicate to you which 13 cases The Fifth Estate dealt with? 14 DR. JAMES YOUNG: I -- I don't think I 15 could remember. I don't know. I just -- you know, the 16 only comment I heard was there was nothing new and 17 nothing different in The Fifth Estate. That's all I 18 know. 19 MR. MARK SANDLER: All right. Now, we 20 see, again, skipping ahead in time a little bit, that -- 21 that Dr. Smith has filed a statement of claim against the 22 CBC. And it's dated February of 2000, which would be not 23 that long after the -- the matter was originally 24 televised. 25 And did you become aware of the existence
1961 of the statement of claim against The Fifth Estate? 2 DR. JAMES YOUNG: I became aware that he 3 was going to issue a statement of claim. 4 MR. MARK SANDLER: And how did you become 5 aware of that? 6 DR. JAMES YOUNG: I believe he asked me 7 whether or not the Ministry would support -- would help 8 with the legal fees if -- if he proceeded. 9 MR. MARK SANDLER: And did you get back 10 to him about that? 11 DR. JAMES YOUNG: I did. 12 MR. MARK SANDLER: And what did you tell 13 him? 14 DR. JAMES YOUNG: I -- I passed on a 15 message from our legal branch, who had discussed it 16 within the Ministry and said they would to a very limited 17 extent, that they would pay a small amount towards the -- 18 the case. 19 MR. MARK SANDLER: And did you support 20 the -- the determination that at least to some extent he 21 would be financially assisted, if he chose to go that 22 route, by the Ministry? 23 DR. JAMES YOUNG: I believe I probably 24 did. I remember bringing it forward for consideration, 25 which was first and foremost what I agreed to do. I -- I
1971 probably said to a -- some limited extent we should -- we 2 should back him on this. 3 MR. MARK SANDLER: Well, the question 4 that arises is that to a limited extent you indicated to 5 the Ministry that we should back him on this without 6 having heard the telecast, without have read its 7 contents, and without being in any position to 8 independently form an opinion as to whether there was any 9 merit at all to his statement of claim? 10 DR. JAMES YOUNG: No. First of all, I've 11 said I don't know if I said that, whether I backed him. 12 I may have or I may not have, but I think I did -- 13 probably did. 14 The other issues that were going on at the 15 time, within government, were that we were having 16 discussions both with coroners and pathologists about 17 issues around liability, workplace safety, providing 18 lawyers for other hearings, et cetera. 19 And -- and it was becoming a very 20 difficult matter when -- as -- as the number of things 21 were increasing, they were saying, You know, if we're 22 going to do the work for government, we expect support 23 from government in return. 24 So I remember that being an issue at the 25 time, and I remember supporting it for that reason, that
1981 I felt that it was important that we back the -- the 2 people that are doing the work for us. 3 If we're not prepared to back them, then 4 we're not going to have them working for us. It was that 5 simple. 6 MR. MARK SANDLER: All right. If we can 7 move ahead then to January of 2001, and if you'd look at 8 volume IV, Tab 1, PFP127457. By a letter dated January 9 the 25th, 2001, Dr. Smith writes to you and says: 10 "I'm writing to request that you excuse 11 me from the performance of medico-legal 12 autopsies for the Office of the Chief 13 Coroner and that you arrange for an 14 external review of my postmortem 15 examinations." 16 Can you advise the Commissioner what 17 circumstances surrounded this letter being provided to 18 you January the 25th of 2001? 19 DR. JAMES YOUNG: Yes. At this 20 particular time, the -- many of the events we've been 21 talking about were -- were taking place, and then the -- 22 the Tyrell case. In the days before January 25th, we 23 learned about the Tyrell case and the fact that -- that 24 charges were going to be withdrawn in that particular 25 case.
1991 MR. MARK SANDLER: Now, just stopping 2 there for a moment. So the Tyrell case, we know, was 3 such that charges were withdrawn on January the 22nd, 4 2001 against -- against the caregiver. 5 Is that right? 6 DR. JAMES YOUNG: Yes. 7 MR. MARK SANDLER: All right. And we 8 also know that the Crown withdrew the charge in the 9 Sharon case on January the 25th of 2001. 10 Is that right? 11 DR. JAMES YOUNG: Yeah, that -- that's 12 the point I was just getting to. 13 MR. MARK SANDLER: Okay. So prior to 14 January the 22nd of 2001, when the charges were withdrawn 15 against Tyrell, had you or anyone else in your office, to 16 your knowledge, known about the Tyrell case? 17 DR. JAMES YOUNG: I certainly didn't know 18 about it other then a day or so before the charges were 19 withdrawn. Someone came to me and told me about the 20 charges being withdrawn -- as I say, within a -- within a 21 few days of that time. 22 MR. MARK SANDLER: And what were you told 23 and -- and by whom about -- about the Tyrell case? 24 DR. JAMES YOUNG: I was told that the -- 25 it was a case that was coming up for trial and then as
2001 they prepared for trial they had re -- recognized that 2 they needed more expert opinion. An opinion had been 3 sought from Dr. Humphries that -- that opinion then -- I 4 believe it was Frank Armstrong was the Crown -- that 5 Frank Armstrong took the two (2) opinions together and -- 6 and reached the conclusion that there was not a -- a 7 reasonable prospect of conviction and, on that basis, 8 felt that the charges should be withdrawn. 9 MR. MARK SANDLER: And were you made 10 aware of the fact that there were other defence expert 11 opinions that had been obtained and provided to the Crown 12 in connection with the Tyrell case? 13 DR. JAMES YOUNG: I don't -- I don't 14 recall that piece of information. I may -- I may have 15 known it, but what I related to you is what I remember. 16 MR. MARK SANDLER: Okay. So I 17 interrupted your narrative, so you go ahead. 18 DR. JAMES YOUNG: As we -- at the same 19 time or within that couple of days, we had received word 20 that the -- that the Crown was going to withdraw the 21 charges in the Sharon case; that the -- felt that they -- 22 you know, they had on one (1) side experts who said all 23 of the wounds were dog bites. 24 Dr. Smith felt that two (2) of them were 25 still stab wounds. Dr. Chiasson said he didn't know. On
2011 that basis, there was not a reasonable prospect of 2 conviction and those charges would be withdrawn, as well. 3 The combination of those two (2) things and, you know, 4 the general -- you know, the -- the Fifth Estate and 5 everything else that had been going on caused me to 6 believe that -- that Dr. Smith had become just a -- an 7 enormous lightening rod. 8 And he would benefit from time away and 9 certainly our office would benefit from him not 10 participating in any further cases, at that point in 11 time. 12 MR. MARK SANDLER: And to be clear, when 13 you say that he -- he had become a "lightening rod" for 14 the office, what do you mean? 15 DR. JAMES YOUNG: Well, we -- we knew, at 16 this point in time, that every -- every case was becoming 17 increasingly controversial. You know, every -- 18 everything -- his name was appearing in the paper too 19 often. You know, we have -- here we have two (2) -- we 20 have one (1) case and they've already picked up -- or 21 they're picking up that -- that his name is associated. 22 We're going to have another one (1) 23 in -- in another day or so. He's become -- you know, his 24 name is -- is becoming written about and -- and 25 discussed, you know, with increasing frequency. And that
2021 -- in terms of making him a useful -- useful contributor 2 to the office is really going to cause us problems. 3 MR. MARK SANDLER: And -- 4 COMMISSIONER STEPHEN GOUDGE: Did you 5 develop doubts about his pathology skills? 6 DR. JAMES YOUNG: I had the doubts only 7 insofar as I know about the ca -- Gagnon case. I know 8 about -- I'm sorry, I -- I know about the Nicholas case. 9 I know about the issue surrounding Sharon, but I have 10 some -- I -- I'm annoyed about some aspects of it, but 11 I'm understanding of others. 12 I do not know about -- and I'm not viewing 13 the Jenna case the same way. And, unfortunately, I'm not 14 -- I -- well, I'm aware of the controversy surrounding 15 Amber, I'm not of the view that at that time that there 16 was a problem. 17 So I have some cases. I have some 18 concerns. I'm certainly aware of the tardiness and -- 19 and the issue -- the other issues from the pitfalls. 20 That's the information I have at that point in time. 21 COMMISSIONER STEPHEN GOUDGE: Was that a 22 factor in your -- 23 DR. JAMES YOUNG: Yes. 24 COMMISSIONER STEPHEN GOUDGE: -- view or 25 was it the controversy in the public domain?
2031 DR. JAMES YOUNG: Both, both. I think -- 2 I think the controversy and the fact that -- that at this 3 point he is not an asset to the office at this point; 4 it's, you know, he's a -- potentially a liability, 5 certainly plays into my mind and is important. 6 But I think -- I'm also aware there, you 7 know, there is a growing amount of controversy and there 8 are these cases as well, so. But that's the amount of 9 information I had to base it on at that point in time. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: If -- it -- it's not 13 presumptuous, I -- I interpret the Commissioner's 14 question in a way that, perhaps, I can just follow up a 15 little bit. 16 COMMISSIONER STEPHEN GOUDGE: Sure. 17 18 CONTINUED BY MR. MARK SANDLER: 19 MR. MARK SANDLER: Because, I mean, did 20 you see it as an issue where the controversy surrounding 21 Dr. Smith was such that he couldn't effectively continue 22 to do the work that you wanted him to do or did you see 23 it as an issue where, as a result of the controversy 24 surrounding his work, you had significant doubts about 25 the quality --
2041 DR. JAMES YOUNG: Yeah. What -- 2 MR. MARK SANDLER: -- of work that he was 3 performing? 4 DR. JAMES YOUNG: No, it was more an 5 issue around the -- the issue was around his 6 effectiveness and his ability to do the work for the -- 7 for the office. 8 COMMISSIONER STEPHEN GOUDGE: As opposed 9 to his competence? 10 DR. JAMES YOUNG: Yes. 11 12 CONTINUED BY MR. MARK SANDLER: 13 MR. MARK SANDLER: All right. So tell us 14 what you did as a result. 15 DR. JAMES YOUNG: I asked him to come to 16 a meeting, and I recall that the meeting was in our 17 boardroom of the Office of the Chief Coroner early in the 18 morning and at that meeting I -- I discussed with him 19 that the -- he had become a lightning rod and, in my 20 view, everything right now that he did or touched would 21 attract an undue amount of attention. 22 And that I felt that was both a problem to 23 the office of the Chief Coroner but also a problem to 24 him, professionally and personally. And that it would be 25 a good idea if he was not doing cases in the immediate
2051 future for the Office of the Chief Coroner. 2 But I, then, gave him the option with the 3 discussion as to whether he wished to withdraw from doing 4 cases. I suggested to him that that was, perhaps, the 5 best thing to do in terms of -- of his long term 6 reputation. And -- and if we were ever to -- for him to 7 do cases again, that -- that it would be best if he had 8 made the decision. And before we would make that 9 decision there would be -- it would be done on the basis 10 of a -- of a review satisfying me that it was okay for 11 him to go back and do cases. 12 MR. MARK SANDLER: All right. And what 13 did he say? 14 DR. JAMES YOUNG: He, reluctantly, but 15 he, without argument, did agree that that was the -- the 16 best course of action, and he indicated he would resign 17 from doing cases in writing within, I think, that same 18 day, and I think within an hour or so he got the letter 19 faxed over that is the exhibit now. 20 MR. MARK SANDLER: And you made reference 21 to a review. What kind of review did you contemplate, 22 and what would the purpose of the review be? 23 DR. JAMES YOUNG: The purpose of the 24 review -- the sole purpose of the review, in my mind, was 25 in the event that he was -- we were thinking of him doing
2061 cases again, to satisfy myself that -- that he should be 2 reinstated and that we should be using him to do cases 3 again. 4 So that was the -- that was the purpose, 5 Before you resume cases, let's -- let's have a look at 6 some of the cases you've done, including, I believe, 7 those -- those cases that we've discussed and at least 8 Sharon and -- but -- 9 MR. MARK SANDLER: And Tyrell. 10 DR. JAMES YOUNG: And I think Tyrell, 11 yes, I think that was the other one. I can't remember 12 with certainty which of the others but I -- I believe it 13 was Tyrell, that we would look at those cases and they 14 would be -- they and others would be reviewed externally 15 before we made a decision. But that -- that was where it 16 was left. 17 I didn't have all of the form, the size, 18 who would do it, in my mind. What I was taking was the 19 action I thought needed to be taken that day, and that 20 action was that he would not -- that he would not do 21 cases. 22 MR. MARK SANDLER: All right. And -- 23 COMMISSIONER STEPHEN GOUDGE: Can I just 24 ask, and I take it the review that you would contemplate 25 before restoring him really was one that would satisfy
2071 you that he had returned to competence. 2 DR. JAMES YOUNG: That's right. That -- 3 that I was confident that he was good enough -- 4 COMMISSIONER STEPHEN GOUDGE: Good 5 enough? 6 DR. JAMES YOUNG: -- good enough to carry 7 on and do cases, exactly. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: All right. And so 11 where did it go from there? You've -- you've announced, 12 or sorry, you've indicated to him that -- that there's 13 going to be an external review before he comes back to 14 work. 15 Did you publically announce that there 16 would be an external review? 17 DR. JAMES YOUNG: No. I didn't -- I 18 didn't announce in the sense did I issue a press release, 19 no, I didn't. I felt that the matter was an -- an 20 internal matter within the office that Dr. Smith had 21 decided not to do cases. 22 By the same token, it was no secret 23 either. We -- when asked about -- I think within a day 24 or so by the - - by the Kingston Whig Standard about Dr. 25 Smith and his relationship in the office, when asked a
2081 question, Was he doing cases?, my answer was, No, he 2 wasn't doing cases right now, and that there would be -- 3 before he did do cases, there would be an external 4 review. 5 MR. MARK SANDLER: Why didn't you do a -- 6 a public release? 7 DR. JAMES YOUNG: Well, this was -- first 8 -- first and foremost, it's an internal matter within the 9 -- within the office. A public release that I -- that he 10 isn't doing cases, and -- and that he -- there'll be a 11 review, seems to me to -- I mean, at that point, the 12 damage to his reputation could very well -- very likely 13 be fatal, and I would never get him back to work. 14 If, you know, the -- the announcing of 15 that review -- I mean, they -- I guess the proof is in 16 the pudding when -- when eventually Dr. McLellan 17 announced the -- the review, Dr. Smith's medical career, 18 and never mind his forensic pathology career, his medical 19 career pretty much ended when that announcement was made. 20 And it's extremely -- it was an extremely 21 dam -- damaging in terms of it -- as it turned out, the - 22 - you know, there were problems. But -- but it's not 23 something you would contemplate lightly. 24 MR. MARK SANDLER: So -- so it was your 25 position that -- that a press release or -- or a more
2091 public disclosure of the fact that -- that he wasn't 2 doing medico-legal autopsies, and that an external review 3 is taking place, should not be done because it could 4 jeopardize his career, but that you could convey the same 5 information to the media when asked? 6 DR. JAMES YOUNG: Well, I -- I didn't -- 7 I don't think I even thought about issuing a press 8 release that he was not doing cases. To -- to my mind 9 this is an internal matter. 10 He has decided not to do cases. I fully 11 support that and agree. We're going to do a review 12 before he does do cases, and I -- I don't think I ever 13 thought about issuing a press release in a matter like 14 that. 15 By the same token, I was quite prepared to 16 be quite transparent if somebody asked a question, Is he 17 doing cases, they got the correct answer, No, he's not. 18 So I wasn't trying to hide anything, but I don't think I 19 even -- I don't think the thought even crossed my mind as 20 to whether I would do a -- a press release. 21 MR. MARK SANDLER: Was there any 22 consideration given to -- to whether the Chief Coroner's 23 Office should widely disseminate the fact that an 24 external review of his cases was being done, and that he 25 wasn't doing medico-legal autopsies to restore confidence
2101 in the forensic pathology system, having regard to just 2 how public the controversy swirling around these cases 3 was? 4 DR. JAMES YOUNG: Well I don't think -- I 5 don't think we would have characterized it as -- at the 6 time as being that big a lack of confidence in -- in 7 forensic pathol -- paediatric pathology. 8 There was growing controversy around 9 Charles Smith, but I think, you know, today in this room 10 it's easy to say that's where we are, but I'm not sure 11 that's where we were at that time. 12 But the other answer to your question is, 13 we did disseminate the information. Very quickly, the -- 14 the discussion -- the discussion took place between Dr. 15 Cairns and -- and the Attorney General's Office about the 16 cases that were still before the courts. 17 And that discussion included providing the 18 information. Well first of all the information appeared 19 in the paper within a day or so, and was -- was available 20 to the public. It -- the information then was passed on 21 to the Crown attorneys as part of the, what I would 22 describe as the second review, or the review that -- that 23 looked at whether or not there was a need for more expert 24 opinion for the cases that were still going to go before 25 the courts.
2111 My expectation -- if -- if there was going 2 to be a release of that information, if that was a 3 material thing for cases that were going to go before the 4 courts, that's the responsibility of the -- of the Crown 5 Attorney and the Attorney General's Office to pass that 6 on to the Defence Bar. 7 That's the way we normally work. We don't 8 phone up the Defence Bar. If we release documents or 9 have an -- an issue, we work through -- through the Crown 10 Attorney system. 11 So they were -- they were made aware that 12 -- that this was the situation with Dr. Cairns and they - 13 - they did what they thought was appropriate. 14 MR. MARK SANDLER: And -- and did the 15 review continue on, or what happened with it? 16 DR. JAMES YOUNG: My initial review did 17 not continue on because as events transpired and the 18 Maclean's article came out and Dr. Smith decided to sue 19 on the basis of -- of that. As the lawsuit came in, in 20 the Sharon case, my decision was that -- and, actually, I 21 think I'm wrong about the Maclean's article. I don't 22 think it was -- 23 MR. MARK SANDLER: Yeah -- yeah, I was 24 about to just correct you -- 25 DR. JAMES YOUNG: Yeah. No, I'm sorry,
2121 it was -- 2 MR. MARK SANDLER: -- to help you with 3 the dates a little bit. The Reynolds lawsuit commenced 4 February the 8th of 2001 -- 5 DR. JAMES YOUNG: Yes. 6 MR. MARK SANDLER: -- and it was reported 7 in the media February the 19th, 2001. 8 DR. JAMES YOUNG: Yeah, the two (2) 9 events -- I apologize, the two (2) events that were 10 influencing me were the launching of -- of the Sharon 11 lawsuit and the College had, by that point in time, were 12 proceeding with their investigation. 13 And my logic, at that point in time, was 14 that the matters were getting increasingly more complex, 15 given that there was going to be some reviews through the 16 Court system and that these other things were taking 17 place. First and foremost, I was not prepared to 18 reinstate Dr. Smith until these matters were resolved. 19 Secondly, then -- 20 MR. MARK SANDLER: "These matters" being 21 what, just to be clear to the Commissioner? 22 DR. JAMES YOUNG: The lawsuit and the 23 College issues. 24 MR. MARK SANDLER: All right. 25 DR. JAMES YOUNG: And, secondly then, if
2131 I'm not prepared to -- if I'm not prepared then, at that 2 point, to reinstate him, and I'm going to gain additional 3 information from these hearings -- the -- particularly 4 the College; I'm going to gain an external review on some 5 of the matters I'm concerned about -- that I'm going to 6 wait and I'm going to look at those and I'm going to use 7 that as part of my -- part of my review and then -- and 8 then, essentially, suspend the review right now. 9 I'm not going to have him back to work 10 before these things happen and then, at the end of all of 11 this, I can decide what form the review will take. 12 So my instruction within the office was to 13 -- to stop that review because of these other matters. 14 And I would wait it out and use that information later as 15 part of the final review, which never came about. 16 MR. MARK SANDLER: And -- and the 17 decision to stop the review took place when, with 18 reference to -- to the Reynolds lawsuit which, as I said, 19 was reported on February the 19th of 2001? 20 MR. MARK SANDLER: After that, but I 21 can't tell you exactly when. I can tell at least when it 22 happened by two (2) things. One (1) is, at some point, I 23 was called by the Toronto Star and asked about the 24 progress of the report and reported that I had decided 25 not to proceed at that point in time.
2141 MR. MARK SANDLER: And that was in June, 2 I believe. 3 DR. JAMES YOUNG: Yeah, so at least by 4 June, and then I became aware this week of some notes 5 that Mr. O'Marra had taken during some of the meetings. 6 And the second of those two (2) meetings -- and I can't 7 remember the date -- has notes that would indicate to me 8 that I made the decision at that point not to proceed. 9 So it's at least by that date, but I can't 10 -- I can't say at what time on what day I made that 11 decision. 12 MR. MARK SANDLER: All right. And did 13 you communicate that decision -- first -- first of all, 14 was that decision made by yourself or -- or with the 15 input of others? 16 DR. JAMES YOUNG: By myself. But I 17 certainly -- I certainly made it known to -- to others, 18 as -- as Mr. O'Marra's notes would indicate. 19 MR. MARK SANDLER: All right. I'm just 20 going to get you that note in a moment. 21 COMMISSIONER STEPHEN GOUDGE: Can I just 22 ask Dr. Young, in the meantime: The review that you 23 stopped, I understand from the last set of exchanges you 24 have had with Mr. Sandler, was rather more to see if Dr. 25 Smith was, in effect, fit to return --
2151 DR. JAMES YOUNG: That's right. 2 COMMISSIONER STEPHEN GOUDGE: -- rather 3 than to see if he had made mistakes that required 4 correction. 5 DR. JAMES YOUNG: It was never intended - 6 - it was not my thinking. It was, Is he fit to return; 7 that's exactly what the purpose of it was. 8 And, given that I've decided that he isn't 9 going to be returning right now, then I'll wait for the 10 other information and decide the fitness to return if and 11 when it becomes an issue later. 12 13 (BRIEF PAUSE) 14 15 COMMISSIONER STEPHEN GOUDGE: Do you 16 want -- 17 MR. MARK SANDLER: We believe it may be 18 February the 21st, but we'll just check it for you and 19 we'll go on -- 20 DR. JAMES YOUNG: Okay. 21 MR. MARK SANDLER: -- and we'll find it 22 during the break. 23 COMMISSIONER STEPHEN GOUDGE: Do you want 24 to break now? It is five (5) minutes away from it. 25 MR. MARK SANDLER: All right, that's
2161 fine. Thank you. 2 COMMISSIONER STEPHEN GOUDGE: Is that 3 okay? Does that suit you? 4 MR. MARK SANDLER: That's a convenient 5 time as any, sure. 6 COMMISSIONER STEPHEN GOUDGE: Okay, 7 fifteen (15) minutes. 8 9 --- Upon recessing at 3:10 p.m. 10 --- Upon resuming at 3:26 p.m. 11 12 THE REGISTRAR: All rise. Please be 13 seated. 14 COMMISSIONER STEPHEN GOUDGE: Mr. 15 Sandler...? 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: Thank you, 19 Commissioner. 20 Dr. Young, during -- during the break, I 21 understand, your counsel looked with you at the -- at the 22 notes that you made reference to and -- and I don't say 23 this in any disrespectful way, but they don't assist in 24 resolving the -- the precise date that you -- that you 25 called off the review?
2171 DR. JAMES YOUNG: Yeah, I agree. 2 MR. MARK SANDLER: All right. 3 DR. JAMES YOUNG: I agree. It's some 4 time before I mentioned it to the Toronto Star, but I 5 don't when exactly. 6 MR. MARK SANDLER: All right. And your 7 best estimate as to when it would have been? 8 DR. JAMES YOUNG: Sooner than later, but 9 I -- I think fairly early, but I can -- I -- I just can't 10 be more precise than that. I don't remember. 11 MR. MARK SANDLER: Okay. Fair enough. 12 When you called it off, I take it for reasons that you've 13 earlier indicated, again other than mentioning it when it 14 was raised by the Toronto Star in June of that year, did 15 you issue a press release or otherwise widely disseminate 16 the fact that the review had been called off? 17 DR. JAMES YOUNG: No, I -- I -- in fact, 18 I not only didn't issue a press release or disseminate 19 it, in retrospect, I think I forgot to tell Dr. Smith, 20 for which I apologize, but I -- no. 21 I -- I made the decision, I acted on the 22 decision, but I don't -- I -- I -- again, I never would 23 have thought of issuing a press release or doing 24 anything. 25 The information was certainly going to the
2181 Crown attorneys as to what we were doing and what we 2 weren't doing. And -- and they in turn, if something was 3 significant, would pass that on to the defence bar. 4 MR. MARK SANDLER: Well, if -- if we can 5 move from there for a moment to just a related issue. 6 And that is that we heard that Dr. Smith held three (3) 7 positions during that period of time, or at least prior 8 to January 25th, 2001. 9 He was a member of the Pediatric Death 10 Review Committee. He was a member of the Under Two or 11 Under Five Committee, as it later came to be known. And 12 -- and he was the director of the unit in pediatric 13 forensic pathology at the Hospital for Sick Children. 14 Am I right? 15 DR. JAMES YOUNG: Yes. 16 MR. MARK SANDLER: And on January 25th of 17 2001, did you speak to him about whether or not he would 18 continue to assume those positions? 19 DR. JAMES YOUNG: I don't recall that we 20 discussed it at -- at that particular day. We may have, 21 but I -- that was certainly not the discussion we were 22 having that day. The discussion centered on him 23 continuing to do cases. 24 MR. MARK SANDLER: All right. Well, did 25 you have any concern that he was continuing to serve as a
2191 member of Pediatric Death Review Committee, having made 2 the decision that -- that it was not appropriate for him 3 to do medico-legal autopsies? 4 DR. JAMES YOUNG: No, my -- not at that 5 time. My -- my logic, in fact, was that the -- we had 6 him -- he was not doing new cases. We were reviewing the 7 work that was going to -- to go to court, but he had 8 served and was a -- a member of those committees. But 9 those committees are -- are not -- he -- he is not 10 running a committee or making judgments on his own. 11 He is part of a large group of people that 12 are sitting and discussing cases. He has the expertise 13 in these areas, but he has -- there are many checks and 14 balances the rest of -- you know, so there's -- there's 15 world-class people that are sitting there at the table 16 with him discussing and listening. 17 If they think he's offside, they'll -- 18 they'll be telling him. And the many -- you know, while 19 some of the issues are pathology issues, they're -- 20 they're much broader than that, as well. 21 So I -- you know, at this point, we were 22 not -- we were not investigating him. The way the 23 ultimate investigation went, that was not the purpose of 24 the investigation. 25 So I -- I -- my mind didn't equate the
2201 two. It -- it -- so I -- I felt it was fine for him to 2 continue. 3 MR. MARK SANDLER: And -- 4 DR. JAMES YOUNG: He's also voluntarily 5 decided not to do the work. He's cooperating with us at 6 that point. He's, you know, under immense pressure. You 7 know, I -- I'm quite anxious to treat him fairly and 8 treat him right and not -- you know, I -- he's got a lot 9 of problems going on, and I'm -- I try to be fair and 10 fairminded, too. 11 So I -- I saw no real reason that he had 12 to step off the committees at that time, based on what I 13 knew. And -- and bearing in mind, there were limited 14 things I knew about these cases. 15 MR. MARK SANDLER: And similarly, was any 16 consideration given to whether or not he would step down 17 temporarily or otherwise from the post as Director of the 18 Ontario Pediatric Forensic Pathology Unit at Sick Kids? 19 DR. JAMES YOUNG: No. I -- I don't -- I 20 didn't certainly give it serious consideration for -- 21 again, for a number of reason. The -- one is that as 22 we've spent considerable time today discussing, the -- 23 the job was an administrative job. 24 Whether he's doing cases or not isn't -- 25 there's no reason that he can't administer the unit and
2211 draw up schedules, and if anything, he has more time to 2 do it now, not less. 3 We -- as far as I was aware, and certainly 4 subsequent events would indicate to me that no one else 5 was too interested in the job either. And if he isn't 6 doing it, then the question is who is going to do it, 7 because the other two (2) people that were doing cases 8 were not keen to manage within that unit. 9 But being an -- being an administrative 10 job, it certainly, as far as I was concerned, wasn't 11 affected by the actions that we were taking at that time. 12 MR. MARK SANDLER: All right. And if I 13 can take you to Volume VIII of -- of your binders, 14 PFP129226. 15 16 (BRIEF PAUSE) 17 18 MR. MARK SANDLER: And I should mention 19 out this -- out of this continuing sense of awe towards 20 Mr. Centa's mastery of the documents, he -- he's brought 21 this to my attention. Simply -- 22 COMMISSIONER STEPHEN GOUDGE: Well I 23 cannot find Volume VIII, so... 24 MS. LINDA ROTHSTEIN: I have it. 25 MR. MARK SANDLER: It's a white one.
2221 COMMISSIONER STEPHEN GOUDGE: Thanks. It 2 does not seem to be one of the ones that I have. 3 Probably because it's there. Sorry, which tab? 4 MR. MARK SANDLER: Tab 47. 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: And just to let you 9 know, this -- this appears to be an email exchange from 10 Jeff Mainland to David Chiasson. And the context, just 11 so you'll know, is there appears to have been some 12 discussion with David Ranson -- which is a name that's 13 known to all of us now -- as somebody who might be 14 involved in some sort of a review that was contemplated. 15 And -- and you see February the 12th, 16 2001, Jeff Mainland tells David Chiasson: 17 "Here's the response from David Ranson 18 in Australia on the instruction of JY" 19 Which I'd suggest is you? 20 DR. JAMES YOUNG: Mm-hm. 21 MR. MARK SANDLER: 22 "I'm not pursuing any further until we 23 get legal advice on how we should 24 proceed." 25 DR. JAMES YOUNG: Mm-hm.
2231 MR. MARK SANDLER: And so does that -- 2 does that assist you in saying that -- that as of 3 February the 12th of 2001, you had certainly communicated 4 to Jeff Mainland that the matter should not be pursued or 5 put on hold, at least until legal advice is obtained on 6 how to proceed? 7 DR. JAMES YOUNG: It would certainly 8 indicate that, yeah. 9 MR. MARK SANDLER: Okay. Now if I can 10 move ahead -- 11 DR. JAMES YOUNG: If I can just add one 12 thing in regard to that -- 13 MR. MARK SANDLER: Sure. 14 DR. JAMES YOUNG: -- it -- well -- before 15 it slips out of my mind. Part of the concern, as well, 16 that I had that didn't enunciate is that -- it's been our 17 experience -- and we were involved frequently in multiple 18 investigations going on at the same time, whether 19 criminal matters or matters involving police that 20 involve, often, criminal matters and SIU and ourselves 21 and sometimes the College. 22 And -- and the -- the whole issue that's 23 surrounding multiple investigations going on and who has 24 what information and how they share them becomes really a 25 major problem as -- as these things advance.
2241 So part of my logic, as well, in calling 2 off the review is if these other things are going on, let 3 them run their course. I'm not going to reinstate him 4 anyway, and I don't want to -- I don't want to get 5 tangled in who has what document at what time and how to 6 release it to each other, et cetera. 7 MR. MARK SANDLER: Just to be clear, you 8 -- you've indicated that the review was -- the review, 9 before cancelled relatively quickly was -- was designed 10 to determine whether or not Dr. Smith should be brought 11 back. 12 Was there not some public interest in a 13 review taking place regardless of whether Dr. Smith came 14 back, to see what lessons, if any, could be learned from 15 the cases which were so controversial, some of which had 16 resulted in the withdrawal or dismissal of charges? 17 DR. JAMES YOUNG: Well certainly at -- at 18 that point in time I wasn't aware that there was that 19 interest. And my own thinking wasn't in that direction. 20 But if there was -- if there was that degree of public 21 interest, no one to this day has brought it to my 22 attention, an editorial in any newspaper or -- 23 MR. MARK SANDLER: I'm sorry, I -- 24 DR. JAMES YOUNG: -- or -- or by the 25 Attorney General or anyone else to have a hearing. So, I
2251 -- it wasn't in my thinking, but it didn't appear to be 2 in anyone else's either, at least that they were telling 3 it to me or to others. 4 MR. MARK SANDLER: Just to be clear -- 5 and perhaps it's the way I worded the question as opposed 6 to the response -- but when I referred to "the public 7 interest," I wasn't referring to it as -- as whether the 8 public had expressed an interest in it, but -- but, 9 instead, whether you saw, as the Chief Coroner, there 10 being a public interest in -- in an examination of these 11 cases -- regardless of whether Dr. Smith came back to 12 work -- in order to determine what lessons could be 13 learned for forensic pathologists from them. 14 DR. JAMES YOUNG: That wasn't my thinking 15 at that time, and it wasn't being suggested to me by 16 anyone else, anywhere. So, no, I don't remember the 17 thought occurring to me. 18 I was focussed on, What am I doing right 19 now? How do we ensure giving the Crown attorneys the 20 support they need? That -- those -- those were my 21 concerns. 22 Ultimately, in deciding about Dr. Smith 23 going back and doing limited cases, I mean, that was what 24 my focus was on. And I don't recall ever having the 25 thought you -- you know, you just put to me.
2261 MR. MARK SANDLER: Okay. If you'd go 2 back to the Sharon overview report, which is Volume II of 3 the overview reports, 144453. 4 DR. JAMES YOUNG: Volume II, tab...? 5 MR. MARK SANDLER: Tab 13. And I 6 appreciate your indulgence in flipping from binder to 7 binder. This is 157, page 157, please. Paragraph 337. 8 And we see that on January the 23rd of 9 2001 a Ministry of the Solicitor General house book note 10 was prepared on the subject: 11 "Crown withdraws murder charges in the 12 1997 death of a seven (7) year old 13 Kingston girl." 14 The issue lead identified on the note was 15 Dr. Young. And, stopping there, I take it a "house book 16 note" is -- is not dissimilar to -- 17 DR. JAMES YOUNG: It's an issue note. 18 MR. MARK SANDLER: -- an issue note. 19 DR. JAMES YOUNG: It's an issue note. 20 MR. MARK SANDLER: Okay. And -- and a 21 number of items are listed in the bullets that follow. 22 And if you go to the -- the following page, it says at 23 the top of page 158: 24 "The Office of the Chief Coroner is 25 reviewing the case to learn any
2271 possible lessons from it." 2 And, again, based upon the comments that - 3 - that you've made, that's not strictly accurate. It was 4 at that point in time contemplated that the case be 5 reviewed simply to determine whether Dr. Smith would be 6 coming back? 7 DR. JAMES YOUNG: Well, I -- you know, I 8 would have no idea, at this point, who wrote that note. 9 And, you know, it would be reasonable to think if we were 10 going to do the review, that we learn some lessons out of 11 it. 12 We decided not to do the review, but, you 13 know, I -- I couldn't say to you that I wrote this note 14 or that I remember every bullet in it. 15 I -- I wouldn't -- I don't even know if I 16 ever saw the note. It -- it has my name on it, but so 17 did a -- a hundred (100) other notes a month. 18 MR. MARK SANDLER: Okay. And then if you 19 go down to paragraph 340. This is quoting from an 20 article in the Kingston Whig-Standard on January the 26 21 of 2001. And the first item was that Dr. Young told the 22 Kingston Whig-Standard that: 23 "The statement read in by the Crown 24 when the charges against -- in the 25 Sharon case were withdrawn was altered
2281 at -- at your request to remove 2 statements which incorrectly linked the 3 decision to exhume Sharon's body in the 4 summer of '99 to the loss of the 5 casting of her skull. 6 Dr. Young told the paper that, to the 7 best of his knowledge, the lost x-ray 8 and the casting had nothing to do with 9 the withdrawal of the charges." 10 And, again, that accorded with your 11 understanding of the situation? 12 DR. JAMES YOUNG: Yes. 13 MR. MARK SANDLER: And had you had 14 discussions with Dr. Smith or anyone else about that 15 aspect of the case before you contacted the Crown in that 16 regard? 17 DR. JAMES YOUNG: I don't think I can 18 remember that. I know that the Crown, I believe, 19 contacted me and -- and gave me the statement. And I 20 read through it and -- and made the changes. But I don't 21 remember -- I don't remember the discussions around it. 22 MR. MARK SANDLER: All right. And then 23 in the article, at page 159, it states: 24 "Young said that he has completed an 25 investigation into the disappearance of
2291 the evidence, and he has ordered 2 another probe that will focus on 3 Smith's initial conclusions about how 4 the child died." 5 Had -- first of all, is that an accurate 6 reflection of what you told the King -- Kingston Whig- 7 Standard article? 8 DR. JAMES YOUNG: I -- I don't remember. 9 I think Dr. Cairns was dealing with the issue of -- of 10 the -- where the cast went and what happened in the 11 office. 12 So if I -- that's the reference I'm 13 making, I believe that it was -- it was either Dr. Cairns 14 or Dr. Chiasson that were -- were chasing down what 15 happened within that office. 16 MR. MARK SANDLER: Do you know whether an 17 investigation was indeed conducted and completed into the 18 disappearance of the evidence? 19 DR. JAMES YOUNG: If I said it there -- 20 if it's accurate, and I don't remember this issue, but if 21 it says it there, then I believed it to be -- to be so. 22 MR. MARK SANDLER: All right. And then 23 going to the next page, page 160: 24 "More important then the lost material, 25 Young maintains, is an independent
2301 review of Smith's initial conclusions 2 that the girl was murdered and that a 3 dog did not attack her. 4 Whether Dr. Smith's view initially is 5 supportable is the purpose of having 6 the review Young said, adding that 7 Smith has voluntarily withdrawn from 8 conducting forensic investigations for 9 the Office of the Chief Coroner. 10 Young said he decided Wednesday when he 11 learned that the Crown would withdraw 12 the murder charge that an internal 13 review was needed. 14 'Likely what I will do is have an 15 external reviewer, an expert in 16 pediatric pathology, review the case 17 for us, and give us their views of it. 18 It was my initiative.'" 19 Now first of all, there seems to be some 20 confusion on the -- on the author's part as to internal 21 versus external review. And your best recollection is 22 that you were talking about an external review? 23 DR. JAMES YOUNG: Yeah. 24 MR. MARK SANDLER: All right. And -- and 25 the reference to the fact that:
2311 "More important than the lost materials 2 is an independent review of Smith's 3 initial conclusions that the girl was 4 murdered and that a dog did not attack 5 her." 6 Was there any reason, if this is accurate, 7 that -- that you didn't communicate to the Kingston Whig- 8 Standard that -- that the purpose of the independent 9 external review was to determine whether Dr. Smith would 10 be coming back to work? 11 DR. JAMES YOUNG: I -- you know, I don't 12 remember how long the interview was and what points I 13 made and what points -- I've never given an interview in 14 my life that everything I said was quoted back directly 15 in fullness. 16 They -- they pick, they choose. You know, 17 Mr. Sandler, I -- I couldn't remember what I said to a 18 reporter. I've done probably tens of thousands of 19 interviews, and I couldn't tell you what I told them or 20 what I didn't or -- or how accurate or inaccurate this 21 is. 22 I just -- I'm -- I couldn't begin to 23 guess. 24 MR. MARK SANDLER: Well, and fair enough. 25 But I guess what I'm asking you is that, did you ever
2321 communicate publically, recognizing that you didn't issue 2 a press release, that -- that the purpose of the external 3 review that you were talking about in response to those 4 queries was to determine whether Dr. Smith might be 5 reinstated? 6 DR. JAMES YOUNG: That was my purpose, 7 that's what I intended to -- it for. I think I 8 communicated that. The fact that one story says 9 something different than that, I -- I -- you know, I -- I 10 can't comment on, I don't know. 11 That was my purpose. That's what I was 12 doing it for. That's what I told people in the office I 13 was doing. You know, I -- 14 MR. MARK SANDLER: Okay. If you go -- 15 DR. JAMES YOUNG: It was very clear in my 16 mind why I was doing it. 17 MR. MARK SANDLER: All right. Thank you. 18 If you go to Volume IV, Tab 6. 19 20 (BRIEF PAUSE) 21 22 MR. MARK SANDLER: This is a letter that 23 you wrote dated March the 30th of 2001 to Mr. Lockyer, 24 re: Dr. Smith, am I right? 25 DR. JAMES YOUNG: Yes.
2331 MR. MARK SANDLER: And it's PFP115718. 2 And am I right that as of March the 30th of 2001 the 3 determination had already been made to put the review 4 that you've described on hold? 5 DR. JAMES YOUNG: I -- I believe -- I 6 believe that to be the case, yes. I -- I can't be 100 7 percent certain, but I think so. 8 MR. MARK SANDLER: All right. And then 9 it says: 10 "This is in reply to your letter of 11 February 20, 2001, regarding Dr. 12 Charles Smith. I very much appreciate 13 you taking the time to write your 14 letter. And I appreciate the offer of 15 assistance from AIDWYC and yourself." 16 Do you remember what the offer of 17 assistance was? 18 DR. JAMES YOUNG: I'd have to see Mr. 19 Lockyer's letter to me. 20 MR. MARK SANDLER: Okay. And you then go 21 on to say in the next paragraph: 22 "The review in question is only in 23 regard to two (2) specific cases that 24 Dr. Smith was involved in, both of 25 which were abandoned by the Crown.
2341 They did not result in trials, let 2 alone acquittals or convictions. 3 In the Sharon Case, as you know, Dr. 4 Smith modified his opinion on the basis 5 of the exhumation, and thereafter the 6 Crown did not feel that he had a 7 sufficient case with which to proceed." 8 Two (2) questions arising out of that: 9 The -- the first is, where do we get the 10 fact that the review in question was only going to be in 11 regards to two (2) specific cases that Dr. Smith was 12 involved in? 13 And the reason I ask you that, just to be 14 clear, is that it would appear that -- that if you're 15 going to conduct a review with a view to determining 16 whether or not he should come back to work, wouldn't the 17 review extend beyond those two (2) cases? 18 DR. JAMES YOUNG: Yes. I -- I don't 19 know. I don't know what I meant in that sentence. I've 20 read it and I've thought about it. I know I had in mind 21 the two (2) cases, likely Tyrell and -- and Sharon. Why 22 I worded it the way I did, in that particular sentence, I 23 have no idea. 24 I've read it, reread it, thought about it. 25 I know the -- even the Maclean's article refers to a
2351 review of two (2) cases, as well, but I -- I just can't 2 piece it together in my mind. I don't know why I made 3 that reference the way I did. 4 MR. MARK SANDLER: And recognizing the -- 5 that -- that your recollection is -- is not -- is not 6 absolute in this regard, but assuming that -- that your 7 best recollection is that the review had already been put 8 on hold by March 30th, 2001, do you know why you would 9 have been describing the review instead of ex -- advising 10 Mr. Lockyer that there was no review? 11 DR. JAMES YOUNG: Well, there was a 12 review. The -- the review, at that point in time, was 13 the work that was being done wi -- in regards to the -- 14 in regards to the Crown attorneys. There was still a 15 review going on, which in -- actually included those two 16 (2) -- those two (2) cases. 17 They -- there was preparation for going to 18 court in the other cases and those two (2) were included 19 in the work that was being done by Dr. Cairns and by Dr. 20 Chiasson, so. 21 MR. MARK SANDLER: I -- I'm sorry, -- it 22 -- it's probably my failing, but the -- the reviews that 23 were being done in relation to cases on behalf of the 24 Crown, those were being done, were they not, to address 25 ongoing cases and the extent to which Dr. Smith's
2361 involvement could impact on them and what, if anything, 2 should be done on those files to address the pathology, 3 right? 4 DR. JAMES YOUNG: Exactly. 5 MR. MARK SANDLER: Right. 6 DR. JAMES YOUNG: Exactly. 7 MR. MARK SANDLER: Well, -- 8 DR. JAMES YOUNG: And then -- and I -- I 9 -- at that point in time, when I'm -- in my mind, that's 10 -- that's the revie -- that's why the review was changed 11 and that's why I'm turning down AIDWYK's assistance. 12 It's not the kind of review that -- that Mr. Lockyer's 13 thinking it is, and it doesn't require AIDWYK to -- to 14 assist, despite their offer to. 15 MR. MARK SANDLER: But am I not right 16 that the review in relation to the Crown's, in terms of 17 outstanding cases, had no application to the Sharon and 18 Tyrell cases where the cases had already been disposed of 19 by the courts? 20 DR. JAMES YOUNG: No. No, that's not 21 true. They did because they knew that those cases would 22 come up in court in questioning. And so they -- they had 23 included those cases, I believe, in -- in the review 24 because the issues surrounding them were very likely to 25 be issues that Dr. Smith would be asked about in future
2371 court hearings. 2 So they -- they were very much part of the 3 -- part of the review that was being undertaken. 4 MR. MARK SANDLER: Now, was there a time 5 where a decision was made later in that year to allow Dr. 6 Smith to perform some medicolegal autopsies? 7 DR. JAMES YOUNG: Yes. 8 COMMISSIONER STEPHEN GOUDGE: Before you 9 go to that, I confess I am a little confused, Dr. Young. 10 DR. JAMES YOUNG: Okay. 11 COMMISSIONER STEPHEN GOUDGE: The review 12 that you decided you would have right after the charges 13 were stayed -- 14 DR. JAMES YOUNG: Yes. 15 COMMISSIONER STEPHEN GOUDGE: -- and then 16 decided you would not have because there were other 17 things going on and you were not going to consider 18 returning Dr. Smith to pathology, in any event. 19 DR. JAMES YOUNG: Right. 20 COMMISSIONER STEPHEN GOUDGE: Is that 21 different from the review that the Crowns -- 22 DR. JAMES YOUNG: Yes. 23 COMMISSIONER STEPHEN GOUDGE: -- were 24 carrying out. Those are two (2) different things? 25 DR. JAMES YOUNG: Two (2) different --
2381 completely different things. 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 DR. JAMES YOUNG: In fact, Commissioner, 4 in -- in my mind, those were two (2) different distinct 5 for different purposes, and in fact, then when in -- in a 6 moment, I think, we're going to the Carpenter review, 7 which is -- 8 COMMISSIONER STEPHEN GOUDGE: A third. 9 DR. JAMES YOUNG: -- a third review for a 10 third reason. So they're -- they're completely different 11 reasons, completely different approach for different -- 12 at different times. All in and around the same time, but 13 for -- for different purposes. 14 COMMISSIONER STEPHEN GOUDGE: Thank you. 15 Sorry, Mr. Sandler. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: And to whom was this 19 review, as you've described it, delegated? 20 DR. JAMES YOUNG: Whi -- which review 21 now? The -- the one (1) for the Crown attorneys? 22 MR. MARK SANDLER: Yeah. 23 DR. JAMES YOUNG: Dr. Cairns and Dr. 24 Chiasson were to work with the Crown attorneys on that 25 issue. I wasn't expecting a -- a formal report or a
2391 written -- what the review was to do was whatever was 2 necessary to cooperate with the office -- with the Crown 3 attorneys; ensure that they had found the experts, ensure 4 that the reviews of any particular cases they wanted were 5 done, and to satisfy them that they had everything they 6 needed in order to make proper decisions on those cases. 7 MR. MARK SANDLER: And who was to have 8 carriage of the -- of the review that was cancelled? 9 DR. JAMES YOUNG: I don't think we ever 10 got to that point. We were beginning to look for people 11 to do it and then called it off before we ever flushed it 12 out. I -- I never assigned -- I asked Dr. Cairns and Dr. 13 Chiasson to think about people who might be involved but 14 we got no further than that. 15 MR. MARK SANDLER: All right. Now, we've 16 seen that in June of 2001, Dr. Blair Carpenter performed 17 a quality control review of six (6) reports of post- 18 mortem examination conducted by Dr. Smith in cases that 19 were not suspicious or involving homicides. 20 And does that accord with your 21 recollection? 22 DR. JAMES YOUNG: Yes. 23 MR. MARK SANDLER: And we've heard some 24 evidence that -- that that review was conducted in the 25 context of determining whether or not the Chief Coroners
2401 Office would permit Dr. Smith to perform autopsies on 2 medicolegal cases other than suspicious cases or 3 homicides. Do I have that right? 4 DR. JAMES YOUNG: Yes. And the review 5 was of the type of case that would be the type of case 6 that he would be reviewing. 7 MR. MARK SANDLER: All right. And -- 8 DR. JAMES YOUNG: Or that he would -- he 9 would be permitted to do if we reinstated him for the -- 10 those purposes. 11 MR. MARK SANDLER: And given Dr. 12 Carpenter's findings that -- that the work was -- did not 13 give any rise for concern and demonstrated quality, 14 completeness and accuracy, decision was made, as I 15 understand it, to permit Dr. Smith to perform autopsies 16 on medicolegal cases that did not involved suspicious 17 cases or homicides. Is that right? 18 DR. JAMES YOUNG: That's right. 19 MR. MARK SANDLER: Now, did that status 20 ever change? 21 DR. JAMES YOUNG: It did, ultimately, 22 when -- when Dr. Smith resigned completely from doing 23 cases. I believe it was 2003. 24 MR. MARK SANDLER: I believe if you'll 25 see it's in October of --
2411 DR. JAMES YOUNG: December 2000, or 2 October, yeah. 3 MR. MARK SANDLER: -- October of 2003? 4 DR. JAMES YOUNG: Fall of 2003. 5 MR. MARK SANDLER: All right. And we're 6 going to come again in the chronology, because I don't 7 want to get ahead of ourselves to -- to October of 2003 8 in a few moments. But I can move to 2002 and -- and take 9 you to Volume IV, Tab 31. 10 DR. JAMES YOUNG: Okay. 11 MR. MARK SANDLER: And this is a file 12 memorandum dated April the 10th of 2002, from Dr. 13 Carlisle to the file, and again, reminding the listener 14 that Dr. Carlisle was designated as the Interim 15 Registrar, at this point, of the College of Physicians 16 and Surgeons, right? 17 DR. JAMES YOUNG: Yes. 18 MR. MARK SANDLER: And this is 145664. 19 And we're going to proceed slowly here to make sure that 20 the chronology is -- is clear. It reflects that -- that 21 this is a memorandum concerning a complaint that has been 22 made by Ms. Waudby. Now that's the Jenna case as you 23 know. 24 DR. JAMES YOUNG: Yes. 25 MR. MARK SANDLER: Right? And it says
2421 that: 2 "Ms. Waudby has complained about a 3 number of matters relating to Dr. 4 Smith's management as the Crown 5 pathologist in the investigation of the 6 death of her child. 7 Last week Dr. James Cairns, Deputy 8 Chief Coroner for Investigations in 9 Ontario, telephoned me to advise me of 10 certain facts relating to this file." 11 And then if I can skip down for a moment, 12 we see: 13 "Dr. Cairns calls me to indicate 14 several things. First he states that 15 he discussed the matter with Dr. Smith 16 and that Dr. Smith asserted that it was 17 the duty of the coroner's office to 18 protect him from the College in this 19 respect. 20 While Dr. Cairns did not say so in so 21 many words, I believe his meaning was 22 that Dr. Smith wished the coroner's 23 office to assert with the College that 24 the College has no jurisdiction over 25 the matter because it involves the
2431 activities of a Crown pathologist, and 2 that this should be seen as equivalent 3 to the execution of an office like 4 coroner. 5 Dr. Cairns indicated to me, clearly, 6 that the coroner's office would not be 7 taking that position and that, in his 8 view, Dr. Smith should deal with his 9 matters at the College in the same way 10 as any other member would. 11 Dr. Cairns wished to tell me, secondly, 12 that he had discussed the matter with 13 Dr. Smith, and that Dr. Smith had 14 revealed to him what had actually 15 happened. According to Dr. Cairns, Dr. 16 Smith stated that he had not conducted 17 a rape kit examination; that he had not 18 taken any of the samples or specimens 19 that would ordinarily be associated 20 with such an examination. But instead 21 that he had, upon visual inspection, 22 detected what he believed to be a hair; 23 that he had collected this hair and 24 placed it in an envelope which he had 25 sealed.
2441 And that he had kept this envelope in 2 his possession since the time of the 3 investigation some five (5) years, and 4 had not revealed it's existence to 5 anyone; had not submitted it for 6 analysis, and had not given it to the 7 police. 8 Dr. Cairns states that he had no notice 9 of this prior to Dr. Smith's 10 revelation. But as a result of the 11 revelation, he believed that Dr. Smith 12 would be in some serious difficulty, 13 and that he did not wish to be party as 14 Deputy Chief Coroner to any deception. 15 Dr. Cairns, thirdly, wished to inform 16 me that the hair in question has now 17 been delivered by Dr. Smith to the 18 proper authorities and has been 19 submitted for analysis. This could 20 have a number of varying effects on the 21 matter." 22 Now just stopping there for a moment. 23 This would appear to reflect that Dr. Cairns, the Deputy 24 Chief Coroner, contacted Dr. Carlisle in the week prior 25 to April 10th of 2002 to communicate this information.
2451 Now we've heard from Dr. Cairns that he 2 had a meeting with -- with Dr. Smith, at which -- which 3 caused him to regard an explanation given by Dr. Smith to 4 him about the hair as lacking in credibility. 5 First of all, did Dr. Cairns tell you 6 about that meeting? 7 DR. JAMES YOUNG: He told me he had held 8 it, yes. 9 MR. MARK SANDLER: And with reference to 10 when the meeting took place, how quickly did Dr. Cairns 11 appear in your office, as you understood it, after that 12 meeting with Dr. Smith had taken place? 13 DR. JAMES YOUNG: It was an evening 14 meeting, and I think it was the next day. 15 MR. MARK SANDLER: All right. And what 16 was it that Dr. Cairns told you about the meeting that 17 had taken place? 18 DR. JAMES YOUNG: Well, he told me about 19 the existence of the hair that -- that Dr. Smith had told 20 him that the hair had been taken; that the hair had been 21 offered to a police officer, and that the police officer 22 had refused to take it as an exhibit; that he had held 23 onto the hair; that at one (1) point he had even gone to 24 court with it in his pocket, and no one had asked him 25 anything about it.
2461 He'd taken it home, and for some reason he 2 was choosing to disclose the existence of the hair at 3 this point in time. 4 MR. MARK SANDLER: All right. And Dr. 5 Cairns told us what evaluation he made of Dr. Smith's 6 credibility. What evaluation, if any, did you make 7 having heard Dr. Cairns explanation? 8 DR. JAMES YOUNG: I certainly did not 9 believe in that this was a credible story. 10 MR. MARK SANDLER: And what was it about 11 the story, in particular, that you found lacking in 12 credibility? 13 DR. JAMES YOUNG: Well, a number of 14 things. First and foremost, I've never met a police 15 IDENT officer who wouldn't take a sample. They are -- 16 complain at the Centre of Forensic Sciences they collect 17 too much, not that they collect too little. 18 I -- the story of taking it to court and 19 not saying anything and then bringing it home, and then 20 why all of a sudden, at this point in time, Dr. Smith 21 decided to -- to disclose this. I -- I had -- you know, 22 I couldn't figure that out either. 23 MR. MARK SANDLER: Were you aware, as a 24 result of your conversation with Dr. Cairns, that Dr. 25 Smith had -- had denied any recollection of the hair at
2471 the preliminary inquiry while he told Dr. Cairns that it 2 was in his pocket the whole time? 3 DR. JAMES YOUNG: No. I -- I can 4 remember the part of the story I've told you. I'm -- I'm 5 familiar with that now, but I don't -- I can't tell you 6 when I became familiar with it; I'm just not sure. 7 MR. MARK SANDLER: All right. So -- so 8 going back to the memorandum, to the file from Dr. 9 Carlisle. When Dr. Cairns indicated two (2) things to 10 Dr. Carlisle, the first is that the coroner's office 11 would not be taking the position that the College had no 12 jurisdiction over this matter. 13 Do you agree with the sentiments that 14 apparently were expressed by Dr. Cairns to Dr. Carlisle 15 in that respect? 16 DR. JAMES YOUNG: Completely. I wouldn't 17 -- whether this was a coroner or whether this was a 18 pathologist, when I was indicating this morning what -- 19 who had jurisdiction over what matters, I -- I very 20 carefully defined that I believed that the College did 21 have control of -- of a physician in matters that -- 22 where there may be ethical or criminal elements to it and 23 this would clearly, in my view, fall within that. 24 So, I -- I would have no difficulty with 25 -- with the College being involved in this and being
2481 aware of it. 2 MR. MARK SANDLER: Okay. And when Dr. 3 Cairns secondly indicated -- provided the information tha 4 -- that's reflected in the memoranda to Dr. Carlisle and 5 said that -- that: 6 "He believed that Dr. Smith would be in 7 some serious difficulty. He did not 8 wish to be party as Deputy Chief 9 Coroner to any deception." 10 I take it -- would you agree with the 11 sentiments that were being expressed by Dr. Cairns to the 12 College in that respect, as well? 13 DR. JAMES YOUNG: Absolutely. 14 MR. MARK SANDLER: All right. And now, 15 if we can move from -- from that -- 16 COMMISSIONER STEPHEN GOUDGE: Can I just 17 ask, Dr. Young, did this episode cause to you question 18 Dr. Smith's professional ability to conduct an autopsy in 19 addition to disbelieving? 20 DR. JAMES YOUNG: I guess -- I guess, at 21 this point, Commissioner, I -- I can't -- I can't give 22 you a -- an definitive answer because I don't remember. 23 I've got a -- it certainly -- he wasn't doing cases -- 24 you know, cases that were going to be going to court. 25 He wasn't -- he was doing cases that we
2491 felt were within the range in what he could do. Whether 2 we -- you know, whether or not how much this -- it 3 certainly made me question his judgment and -- and, you 4 know, why he would do this. I'm -- I don't know whether 5 it extended to his professional ability or whether it 6 went his -- his judgment and his ethics. 7 It certainly made me question that. And 8 then with -- with time, when I remember the -- you know - 9 - and thought about the -- the mel -- the Jenna case, it 10 drew me back to the statement about "justice done" and 11 made me question that. So it ha -- it had an effect, but 12 I don't remember whether I equated it to ethics or 13 whether I req -- 14 COMMISSIONER STEPHEN GOUDGE: Sounds like 15 it was more to ethics than it was to his professional 16 ability. 17 DR. JAMES YOUNG: Probably. I mean, it's 18 not a -- I'm not sure I knew the part of the story of -- 19 of saying, I didn't do a vaginal kit. I -- I -- my -- my 20 knowledge was around the hair and the ethics of the hair 21 and what was done. So that would be -- 22 COMMISSIONER STEPHEN GOUDGE: Pretty 23 important part of an autopsy to preserve something like a 24 hair -- 25 DR. JAMES YOUNG: Well, and to hand it
2501 in -- 2 COMMISSIONER STEPHEN GOUDGE: -- found in 3 a vaginal area. 4 DR. JAMES YOUNG: -- to hand -- to hand 5 it in, as well, exactly. Exactly. He preserved it, but 6 he -- he didn't do any of the right things with it. 7 COMMISSIONER STEPHEN GOUDGE: Thank you. 8 9 CONTINUED BY MR. MARK SANDLER: 10 MR. MARK SANDLER: And following up on 11 the Commissioner's question, if -- and I -- I underline 12 the word if -- the evidence in regard to this issue 13 demonstrated that -- that Dr. Smith had mislead someone 14 in connection with what he had done with the exhibit. 15 Would that, in your mind, disqualify him 16 from performing any autopsies, whether in criminally 17 suspicious or homicide cases or medicolegal autopsies all 18 together? 19 DR. JAMES YOUNG: Well, you know, as 20 you've been asking me these questions, I've been thinking 21 -- thinking back, and I, you know, I just -- I don't know 22 why we didn't stop him doing everything that -- at that 23 time. I don't know if Dr. Chiasson or Dr. Cairns have 24 addressed or can address it. I don't -- I just don't 25 know.
2511 I don't know -- I mean, when I read it 2 today, I look at it and I say, Well, why didn't we stop 3 him doing cases at that -- at that point. And I just -- 4 I don't have an answer. I don't know. 5 MR. MARK SANDLER: Okay. And then if you 6 go with me to Volume IV, Tab 47. 7 DR. JAMES YOUNG: 47? 8 MR. MARK SANDLER: Yes, please. 9 DR. JAMES YOUNG: Okay. 10 MR. MARK SANDLER: And this is PFP152327. 11 DR. JAMES YOUNG: Mm-hm. 12 MR. MARK SANDLER: And this is a letter 13 from McCarthy Tetrault to you dated April the 8th of 14 2002. 15 And -- and again, we've seen that the 16 internal memoranda from Dr. Carlisle is dated April the 17 10th and makes reference to Dr. Cairns having contacted 18 Dr. Carlisle the week before, right? 19 DR. JAMES YOUNG: Mm-hm. 20 MR. MARK SANDLER: And we see here: 21 "Further to our recent conversation 22 [and it's -- it's] re: Jenna, Nicholas, 23 and Amber." 24 And just stopping there for moment. You 25 were aware as of April 2002 that there were three (3)
2521 complaints before the College of Physicians and Surgeons 2 namely pertaining to Dr. Smith's conduct in Jenna, 3 Nicholas, and Amber, am I right? 4 DR. JAMES YOUNG: Yes. 5 MR. MARK SANDLER: And it says: 6 "Further to our recent discussion, I 7 enclose a draft of the proposed letter 8 to the College in respect of the 9 investigation into Dr. Smith's 10 involvement in the deaths of Amber, 11 Nicholas and Jenna. Dr. Smith 12 appreciates your willingness to 13 consider a submission to the College on 14 his behalf." 15 And then these important words follow: 16 "The attached draft is not meant to 17 restrict you in any way, nor is it 18 intended to state opinions you do not 19 hold. Please feel free to edit the 20 letter so that it reflects your views." 21 And attached to the document is a draft 22 letter directed to the chief investigator of the College 23 of Physicians and Surgeons that -- that would be issued 24 if you found it acceptable and if it conformed to your 25 opinions and in your name.
2531 Is that right? 2 DR. JAMES YOUNG: Yeah. 3 MR. MARK SANDLER: And let me just ask 4 you at once, did you send a letter to the College of 5 Physicians and -- and Surgeons following receipt of this 6 material from McCarthy Tetrault? 7 DR. JAMES YOUNG: I did. 8 MR. MARK SANDLER: And how did it compare 9 in substance and language to -- to what was contained as 10 a draft in this letter from McCarthy's? 11 DR. JAMES YOUNG: It was virtually 12 identical. 13 MR. MARK SANDLER: All right. And if we 14 can go to that letter, which is at Tab 30, and it's dated 15 April the 10th of 2002, and you may recall from -- from 16 the -- from the letter from McCarthy's that time was of 17 the essence as the College intends to submit material by 18 the end of the week and we're working with an April 10th 19 deadline. 20 So this is an April 10th letter from -- 21 from you to Ms. Elizabeth Doris, Chief Investigator. 22 Am I right? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: And -- and it starts 25 off:
2541 "I'm writing in respect of the College 2 investigation into Dr. Smith's 3 involvement in the Coroner's 4 investigations into the death of Amber, 5 Nicholas and Jenna. I would ask that 6 you please submit this letter to the 7 panel of experts assembled to review 8 Dr. Smith's conduct, for their 9 consideration." 10 And then you set out what your statutory 11 authorization and mandate is as the Chief Coroner, and I 12 won't read that to you. 13 Then it goes on to say: 14 "Dr. Smith was involved in the Amber, 15 Nicholas and Jenna investigations as 16 agent for the coroner responsible for 17 these investigations under various 18 sections of the Coroners Act. I am 19 aware that various complaints have been 20 made to the College about Dr. Smith's 21 conduct in these investigations. I 22 would like to confirm that it is the 23 opinion of the Office of the Corner 24 that Dr. Smith was qualified to 25 undertake the work requested of him in
2551 each of these investigations. He 2 certainly has the necessary experience 3 and qualifications to conduct 4 paediatric post-mortem examinations, 5 and is one of only five (5) or six (6) 6 pathologists in Canada to have sub- 7 specialty Board certification in 8 paediatric pathology." 9 And stopping there for a moment; the 10 content of that paragraph, you would have agreed with? 11 DR. JAMES YOUNG: There is certainly 12 nothing in it that I'm aware is inaccurate. 13 MR. MARK SANDLER: Right. And then in 14 the next paragraph: 15 "To the best of my knowledge, at no 16 time did Dr. Smith act in bad faith or 17 with the intent to obstruct or hinder 18 these coroner's investigations." 19 Now, just stopping there for a moment. 20 The investigations that are being referred to include the 21 Jenna investigation. 22 Am I right? 23 DR. JAMES YOUNG: Yes. 24 MR. MARK SANDLER: And, in your view, was 25 that a statement that -- that was appropriate for you, as
2561 Chief Coroner, to make having regard to what you had 2 learned from Dr. Cairns? 3 DR. JAMES YOUNG: Well, I don't think I 4 would -- I would have caught that -- that reference or 5 thought about it in tho -- that term. I -- I agree with 6 you. It's not a correct statement. I -- as the letter 7 goes on, it -- it separates out the -- the Jenna case 8 from consideration. 9 The -- the statement, in hindsight even, 10 is wrong in terms of what I've learned since about the -- 11 the contact with Justice Dunn. But in reference to the 12 other two (2) cases, it certainly, at the time, was my 13 belief. 14 But the Jenna statement -- but I'm not 15 sure that I parsed it to that extent or thought in those 16 terms. 17 MR. MARK SANDLER: Well, just having 18 regard to the fact that -- that you had learned what you 19 had about the -- and, again, this was based upon what Dr. 20 Cairns said to you about you had learned what Dr. Cairns 21 had to say about the Jenna investigation, and -- and what 22 he and you regarded as a lack of credibility on the part 23 of Dr. Smith. 24 Did you feel it appropriate to adopt the 25 letter that had been provided to you in this form without
2571 having parsed so very carefully what it was that -- that 2 was being said, especially when you knew that the College 3 would be placing reliance upon this? 4 DR. JAMES YOUNG: I -- I read the letter, 5 it didn't -- nothing struck me as being beyond -- what I 6 should say, I -- in retrospect I completely agree with 7 you. 8 That statement is -- should have caught my 9 attention, didn't catch my attention. The fact I signed 10 it, I -- I read it, I -- what I read I -- I accepted and 11 I -- I sent it. I... 12 MR. MARK SANDLER: All right. 13 DR. JAMES YOUNG: Sitting in the room 14 today you wouldn't get me to resign it, but -- 15 MR. MARK SANDLER: Okay. 16 DR. JAMES YOUNG: -- I did that day. 17 MR. MARK SANDLER: I'm not going to ask 18 you to resign it today. 19 DR. JAMES YOUNG: No, I don't intend to. 20 MR. MARK SANDLER: Then in the next 21 paragraph it says: 22 "Furthermore, the conclusions reached 23 in his postmortem investigations of the 24 Amber and Nicholas cases are within the 25 range of reasonable expectation.
2581 As I advised Mr. Gagnon in my response 2 to his complaints in the spring of 3 1999, there is often a range of 4 opinions among experts in any given 5 investigation, and experts are entitled 6 to their individual opinions. 7 The question when reviewing an expert's 8 involvement is whether or not the 9 opinion falls within a reasonable 10 range, given the facts of the case. 11 I'm satisfied that Dr. Smith's findings 12 were within this range in these two (2) 13 cases." 14 And then skipping down for a moment, it 15 says: 16 "With respect to the Amber 17 investigation specifically, in which I 18 was directly involved, I'm completely 19 satisfied that Dr. Smith's conclusions 20 were consistent with the standard 21 expected of a qualified expert 22 assisting with a coroner's 23 investigation. 24 I'm not aware of any professional 25 misconduct on Dr. Smith's part. There
2591 was an issue in the case concerning a 2 lost x-ray, and the importance of 3 evidence preservation was stressed with 4 Dr. Smith." 5 Now just stopping there for a moment, do 6 you have any concerns about having expressed, in that 7 language, to a College which is investigating this very 8 issue in the Amber case, those opinions having regard to 9 the -- the limited role that you said you played in the 10 case after your initial attendance in Timmons? 11 DR. JAMES YOUNG: No, I think what I'm 12 stating here is consistent with what I've been saying. I 13 -- in this particular case, unfortunately, the alarm 14 bells hadn't gone off. I was unaware of the -- Justice 15 Dunn's report or any of the other things. 16 So based on what I knew at that point in 17 time, this really does reflect my view of the case was 18 that there -- that -- and I was wrong -- but there -- my 19 view of the case was that it was -- that it had been 20 acceptably managed. 21 It was a tough case that had been lost. 22 That's exactly what my view was, and it's been my view 23 all along that that was what I was thinking. 24 I -- I accept that it -- it's a wrong 25 view, but it -- it was what my view was.
2601 MR. MARK SANDLER: But I -- I guess what 2 I'm asking you is that, first of all, were you aware that 3 as part of the complaint that was being made by Amber was 4 concern expressed about the testimony that was given? 5 DR. JAMES YOUNG: I don't see the 6 complaint. I have never -- I wouldn't -- 7 MR. MARK SANDLER: Precisely. 8 DR. JAMES YOUNG: Well, but I would -- 9 this -- this paragraph, I mean I have no way of knowing 10 that. And I'm not, you know, I'm -- I'm not signing on 11 to that, I'm -- what I'm saying is, based on what I know 12 this -- this is all right. 13 I mean, I -- I can't make it more than 14 that, I'm -- it's simply a statement that says -- and 15 that was my view. And I held that view until I found out 16 otherwise. 17 But that -- and that did influence my 18 decision, but that's -- in the Amber case I simply was 19 not concerned about it. And that paragraph isn't that 20 different from what my view was. 21 MR. MARK SANDLER: Well, I -- I guess, 22 accepting that that was your view at the time, and -- and 23 I guess -- 24 DR. JAMES YOUNG: Until very recently. 25 MR. MARK SANDLER: I guess what I'm
2611 asking is something a little different. And -- and that 2 isn't challenging that that was your view at the time. 3 I guess what I'm asking you is, did you 4 see any concern about the fact that here is a College 5 that's investigating whether or not Dr. Smith's conduct 6 in the Amber case was appropriate. 7 And -- and you're expressing a fairly 8 strong view of the matter without directing yourself to 9 what the complainant was all about, what, if anything, he 10 had said in the testimony that he'd given at the -- at 11 the proceedings. 12 And -- and didn't you see any difficulty 13 in doing that -- 14 DR. JAMES YOUNG: I -- I'm not -- 15 MR. MARK SANDLER: -- against that -- 16 DR. JAMES YOUNG: I'm not entitled to any 17 of that information. I'm not going to get that 18 information. I'm not entitled to that information. 19 All I'm doing is saying from my point of 20 view at this point in time -- I mean, you're reading a 21 level that I -- I'm not entitled to that information. I'm 22 not going to see it. 23 I'm simply saying, based on what I know at 24 this point in time, that's all I know, and I'm -- I'm 25 okay. I --
2621 MR. MARK SANDLER: All right. 2 DR. JAMES YOUNG: I -- you know, a letter 3 like this I look at, I consider it, I think about it, but 4 I -- I don't have the -- the leisure to -- to parse every 5 word or to think through to that depth. 6 I -- I looked at it, it was asking me to 7 do something that seemed reasonable at the time, and I 8 did it. And I -- I missed that one reference, but I -- I 9 -- you know, if I thought there was a problem, I wouldn't 10 have signed it. 11 MR. MARK SANDLER: In relation to Gagnon 12 you said in the third paragraph of page 2: 13 "Furthermore the conclusions reached in 14 his post-mortem investigations of the 15 Gagnon case is within the range of 16 reasonable expectation." 17 I've paraphrased a little bit. And then 18 the passage that I read earlier: 19 "I advised Mr. Gagnon in my response in 20 the spring of 1999 there's often a 21 range of opinions amongst experts in 22 any given investigation, and experts 23 are entitled to their individual 24 opinions." 25 And again, this is the same language that
2631 we saw earlier: 2 "The question when reviewing an 3 expert's involvement is whether or not 4 the opinion falls within a reasonable 5 range given the facts of the case. I'm 6 satisfied that Dr. Smith's findings 7 were within this range in these two (2) 8 cases. 9 I can also confirm that Dr. Smith is 10 aware of the various policies and 11 procedures governing coroners and their 12 agents in the conduct of 13 investigations. I am responsible for 14 bringing the policies and procedures to 15 the attention of all of those engaged 16 in coroners work. 17 And when there's been a breach of these 18 policies and procedures, I communicate 19 directly to the coroners and their 20 agents. For example, I advised Dr. 21 Smith he was in breach of protocol when 22 he brought his son to Nicholas' 23 disinterment." 24 Just stopping there for a moment, and 25 again, that accurately reflects, certainly, your state of
2641 mind concerning the Nicholas case, as you've earlier 2 communicated to the Commissioner? 3 DR. JAMES YOUNG: I think large parts of 4 that statement, in fact, arise right out of my letter 5 back to Mr. Gagnon earlier. So I -- I think good parts 6 of the wording are -- are exactly mine. 7 MR. MARK SANDLER: Fair enough. And then 8 on the last paragraph: 9 "I've previously reviewed Mr. Gagnon's 10 complaints which were made directly to 11 me in November '98 and February '99 12 about Dr. Smith's involvement in the 13 coroner's investigation of Nicholas' 14 death. 15 I specifically investigate and then 16 responded to Mr. Gagnon's complaints by 17 letters dated March and May '99. 18 I did not find any professional 19 misconduct in Dr. Smith's involvement. 20 Although, as stated in these letters, I 21 did conclude that there was room for 22 improvement in Dr. Smith's knowledge of 23 coroners' protocol. 24 I would reiterate that at the time of 25 my review of the Gagnon case, the
2651 Office of the Chief Coroner had three 2 (3) different opinions from three (3) 3 different experts. It remains my view 4 that Dr. Smith's opinion fell within a 5 range of acceptable opinions. I also 6 wrote to all pathologists engaged in 7 assisting coroners investigations as a 8 result of Mr. Gagnon's complaints to 9 ensure that the practices followed by 10 experts engaged by coroners were 11 consistent and designed to further the 12 objectives of the Coroners' Act." 13 And again, that accorded with -- with your 14 state of mind at that period of time and, again, largely 15 tracked language that you had used in dealing with the 16 matter earlier? 17 DR. JAMES YOUNG: Exactly. 18 MR. MARK SANDLER: And then on the 19 following page, page 3: 20 "I'm not willing to comment on Dr. 21 Smith's involvement in the Jenna 22 investigation. This is an ongoing 23 criminal investigation of some 24 complexity. It would be inappropriate 25 for me to comment in these
2661 circumstances. 2 My comments could be seen to be 3 interfering with or obstructing the 4 criminal process. Frankly, I believe 5 it's inappropriate for the College to 6 be investigating Dr. Smith in respect 7 of this investigation. Disciplinary 8 matters cannot and should not risk 9 obstructing the administration of 10 justice." 11 Now stopping there for a moment. Was it - 12 - was it truly your view that -- that there was no scope 13 for you to comment on what you had learned about Dr. 14 Smith and the Jenna matter, given the existence of an 15 ongoing criminal investigation and that -- because that 16 could be seen as interfering with or obstructing the 17 criminal process? 18 DR. JAMES YOUNG: No, I -- I don't think 19 that's a reasonable interpretation. What I'm saying here 20 is I don't want to comment on the -- the case itself 21 because of obstructing. I'm already aware that the 22 College is aware of the -- of the other information from 23 Dr. Cairns. 24 So I'm not going to put it in a letter and 25 write -- write it at this point. But I felt the College
2671 should not be doing an investigation into his autopsy and 2 his findings at that point in time. 3 I -- I felt it jeopardized the case. The 4 case was successfully concluded at one point, and I would 5 hate to think that an -- an investigation could have put 6 it in jeopardy, and it didn't, and it succeeded. 7 But I -- I did hold the view that it 8 shouldn't -- we have to be very careful in these matters. 9 MR. MARK SANDLER: Okay. And two (2) 10 final questions in relation to this letter. 11 The first is, did you have any concern at 12 the time, and -- and when I ask you this question I -- I 13 should preface it, I guess, with another question. 14 And that is that if there are any -- if 15 there are seen to be any deficiencies or inaccuracies or 16 difficulties in the letter, you wouldn't visit any -- any 17 of that upon McCarthy's because McCarthy's made it quite 18 clear that you were free to change -- change the -- the 19 letter, edit the letter, and state the opinions as 20 accurately as you believed them to be. 21 Am I right? 22 DR. JAMES YOUNG: Sure. 23 MR. MARK SANDLER: But leaving that aside 24 for a moment, just from your perspective as the Chief 25 Coroner, just given the -- the history of events that had
2681 lead up until April of 2002, did you have any concern 2 about -- about simply adopting the letter that had been 3 provided by McCarthy's and submitting it to the College 4 of Physicians and Surgeons? 5 DR. JAMES YOUNG: No, I don't think it -- 6 the letter, when I read it, covered the issues. It -- I 7 had no particular problem with the letter. I -- you 8 know, I didn't take the time to -- to rewrite it. You 9 know -- you know, if you sent me a letter and asked me to 10 do something and the letter was satisfactory, I'd 11 probably even sign off on one of your letters. 12 But I just -- you know, I -- you know, at 13 the time, it -- it said what I -- I -- you know, what I 14 thought was reasonable, and I signed it. I didn't -- I 15 guess, I'm not that deep of thinker. I just didn't think 16 of -- you know, I don't remember thinking about -- about 17 it. 18 It said what I needed to say, so I said 19 it. 20 MR. MARK SANDLER: Okay. Now, we see if 21 -- if one looks at Tab 32 of the same volume, Volume IV. 22 23 (BRIEF PAUSE) 24 25 MR. MARK SANDLER: The decision that was
2691 rendered by the Complaints Committee in -- in the Amber 2 case. 3 DR. JAMES YOUNG: Mm-hm. 4 MR. MARK SANDLER: And -- and you became 5 aware of -- of the decision that had been rendered? 6 DR. JAMES YOUNG: Yes. 7 MR. MARK SANDLER: And -- and in -- in 8 fairness -- and I -- at the risk of not reading it in 9 detail, is it fair to say that although the review panel 10 commented on a number of deficiencies in the work of Dr. 11 Smith in connection with that case -- including an 12 overdogmatic approach, overinterpretation of pathology, 13 failure to document photographically certain contusions, 14 failure to take complete radiographs, failure to review 15 to have -- or to have a consultant radiologist review the 16 x-rays. 17 The bottom line was that -- that the 18 committee found the conclusions as to cause of death as 19 head injury as -- as acceptable in the circumstances. Is 20 that right? 21 DR. JAMES YOUNG: Yes. 22 MR. MARK SANDLER: Okay. And -- and then 23 if you look at Tab 33, which is PFP029033. 24 This is the opinion that was rendered by 25 the College, also October 15th, 2002, in connection with
2701 the Jenna case. And -- and we actually see in -- in 2 summary that -- and if you look at page 5 of the 3 committee's analysis and conclusions: 4 "The expert panel which reviewed this 5 matter for the College stated that Dr. 6 Smith should have documented any 7 findings relative to sexual assault. 8 Two (2) of the autopsy photographs had 9 findings sujec -- suggestive of vaginal 10 injury. There was no specific 11 description of the genital region in 12 the autopsy report and, in particular, 13 there was no reference in the report 14 that possible genital injuries were 15 identified the emergency room doctor 16 and nurse. 17 The extent of Dr. Smith's examination 18 for sexual assault in unclear. In 19 particular, it's not clear whether he 20 took vaginal, rectal, and oral swabs 21 for semen, acid phosphatase, and DNA 22 secretions from a possible assailant." 23 And then at the next page, page 6 -- and 24 bear with me if -- if you would, because I'm going to ask 25 you something arising out of all three (3) of these
2711 reports. In the middle of the page: 2 "On the availability to Dr. Smith of 3 medical records, [it says] it was 4 apparent that Dr. Smith did not review 5 records from the emergency department 6 in the Peterborough Hospital in this 7 case, which had observations suggesting 8 sexual assault. Dr. Smith explained 9 it's the coroner's job to provide the 10 records for the pathologists to review. 11 He stated that such records are almost 12 never available to review during the 13 autopsy. Information prior to the 14 autopsy is typically provided by the 15 coroner. This lack of availability of 16 medical records is a serious deficiency 17 in the Ontario coroner system and 18 hampered Dr. Smith in his ability to 19 perform necessary tests, including a 20 rape kit examination, and has the 21 potential for a forensic pathologist to 22 come to an inaccurate or wrong 23 conclusion about the cause of death and 24 other questions arising during the 25 death investigation. It is our
2721 opinion, however, that Dr. Smith should 2 be more assertive in his attempts to 3 obtain medical records, including 4 contacting the Chief Coroner, if 5 necessary, and insisting on having 6 those records available. In the Waudby 7 case, the fact is that the lack of 8 medical records was a major problem in 9 that the records stated there were 10 possible injuries to Jenna's genital 11 region. Dr. Smith, not knowing this, 12 failed to perform a rape kit 13 examination." 14 Now, just stopping there for a moment; 15 does that accurately reflect the dichotomy between the -- 16 between the role of the Coroner and that of the 17 pathologist; namely, it's the coroner's duty to obtain 18 the records, but that the pathologist here was hampered 19 in -- by reason of the absence of those records, in his 20 examination? 21 DR. JAMES YOUNG: Well, it -- it reflects 22 that particular case. It is -- it's the coroner's legal 23 responsibility, and it's the coroner's warrant that 24 obtains them. The pathologist can't obtain them on their 25 own. They -- they must have the coroner obtain them.
2731 Because that's the legal basis of seizing the records. 2 Is it an issue that we've worked on and 3 been concerned about? For as long as I've been in the 4 coroner's office, the answer is yes. We -- trying to get 5 coroners in the field to understand the need to seize the 6 records and send them along, is a -- is a long-standing 7 difficult issue that we've tried to work on. 8 There -- I think the College are quite 9 correct in saying, you know, he can be more aggressive. 10 If he -- if he feels he needs them, he has -- you know, 11 there are routes available where we can -- and many times 12 did, you know, through the Office of the Chief Coroner -- 13 we would find out a set of records were vital, and we'd 14 sign the warrant from the Office of the Chief Coroner, 15 and then send them -- send them back. 16 MR. MARK SANDLER: I -- I guess what I 17 take from -- from your answer -- and you tell me if I'm 18 wrong -- but if you had read that -- that paragraph 19 without any input subsequently, would you regard it as 20 some misunderstanding of the role of the coroner or of 21 the role of the pathologist? Or did they get it right? 22 DR. JAMES YOUNG: No, I don't think they 23 -- I don't think the paragraph's completely right. 24 MR. MARK SANDLER: Well, that's what I'm 25 asking you. How is it incorrect?
2741 DR. JAMES YOUNG: Well, I mean, the lack 2 of availability is a serious deficiency. It is the 3 coroner's role -- I suppose that's what it says, but it's 4 -- I mean, that -- that's -- that's right. It's the 5 coroner's responsibility. 6 MR. MARK SANDLER: Right. 7 DR. JAMES YOUNG: But Dr. Smith can be 8 more assertive, so I suppose you can say, Yeah, I got it 9 right. MR. MARK SANDLER: Okay. 10 DR. JAMES YOUNG: But... 11 MR. MARK SANDLER: And then, if you go to 12 page 8 of the -- of the complaint, we see: 13 "The review panel concluded that, 14 overall, Dr. Smith met the standards 15 expected of a pathologist assisting the 16 coroner in an investigation. However, 17 the panel noted a number of 18 deficiencies and omissions in Dr. 19 Smith's approach in this case. Some of 20 these have already been noted. In 21 summary, the deficient noted -- 22 deficiencies noted by the panel were: 23 Dr. Smith failed to review clinical 24 information in this case before 25 performing the autopsy.
2751 Dr. Smith failed to perform a rape kit 2 examination on Jenna's body. 3 Dr. Smith should have documented 4 significant positive or negative 5 findings with respect to sexual 6 assault. 7 The post-mortem examination report 8 failed to describe the genital region. 9 The post-mortem photographs were of 10 substandard quality. 11 Dr. Smith's estimate of the time during 12 which the fatal injuries were received 13 was far too broad. 14 Dr. Smith should have consulted if he 15 was unable to determine the time of 16 death himself." 17 And then if we go, finally, to the 18 Complaint Committee's decision in the Gagnon matter; 19 PFP029044, which is at the following tab, Tab 34. 20 21 (BRIEF PAUSE) 22 23 MR. MARK SANDLER: Excuse me for a 24 moment. 25
2761 (BRIEF PAUSE) 2 3 MR. MARK SANDLER: And then if you go at 4 page -- to page 9 of the document, it says, under 2A: 5 "Did -- did Dr. Smith fail to 6 investigate Nicholas' previous medical 7 records, specifically his head 8 circumference in life. The Independent 9 Review Panel pointed out that Dr. Smith 10 failed to determine Nicholas' usual 11 head circumference and added that this 12 was an important omission since Dr. 13 Smith used head circumference as 14 supportive evidence of head injury. 15 The Committee notes further that Dr. 16 Smith failed to review records from 17 Nicholas' family doctor which could 18 have been helpful on this point. 19 2B. Did Dr. Smith fail to read or 20 consider police interview 21 records/reports regarding the 22 circumstances or events of Nicholas' 23 death before he submitted his opinion 24 or conclusion? The independent panel 25 noted that Dr. Smith explained that
2771 sometimes the police don't share 2 information with them that may affect 3 his opinions. The committee considers 4 this explanation to be reasonable". 5 And then, if one goes to the -- to the 6 bottom line, excuse me for a moment, under General 7 Remarks at page 13: 8 "The review panel assembled by the 9 College concluded that overall Dr. 10 Smith met the standard expected of a 11 pathologist assisting the coroner in an 12 investigation. However the panel noted 13 a number of deficiencies and omissions 14 in Dr. Smith's approach in this case. 15 Some of these have already been 16 discussed above. 17 In summary, the deficiencies noted by 18 the panel included: Dr. Smith failed 19 to obtain information on Nicholas' head 20 circumference in life. 21 Dr. Smith over interpreted findings to 22 suggest a diagnosis of head trauma. 23 Dr. Smith exaggerated the wording on 24 the x-ray reports by misquoting the 25 radiologic findings respecting the
2781 mandible. 2 Dr. Smith implied that herniation of 3 the brain stem was present and would be 4 the terminal event, yet such herniation 5 was not identified in the original 6 autopsy by Dr. Chen. 7 Dr. Smith's implication that blunt head 8 injury caused cerebral edema was not 9 supported by the information that he 10 had received about a slight bump on the 11 child's head. 12 Dr. Smith over interpreted the findings 13 of cerebral edema, including splitting 14 of the sutures, as strongly suggestive 15 for trauma. Dr. Smith's suggestion 16 that cerebral edema was due to blunt 17 force was incorrect. 18 Dr. Smith should have consulted a 19 neuropathologist before opining on the 20 probability of head injury". 21 And then the disposition: 22 "The committee acknowledges the expert 23 panel's opinion that Dr. Smith's 24 overall approach was acceptable, 25 nonetheless the committee is extremely
2791 disturbed by the deficiencies in his 2 approach in this case as set out 3 above". 4 Now, did you read the three (3) decisions 5 that came from the College in connection with the 6 complaints that we've discussed? 7 DR. JAMES YOUNG: Yes. 8 MR. MARK SANDLER: And, what conclusion 9 did you form as to how they affected Dr. Smith's 10 performance, if at all, as a forensic pathologist within 11 the coronial system? 12 DR. JAMES YOUNG: This was the time when 13 -- when he stopped doing cases. 14 MR. MARK SANDLER: All right. And -- and 15 I don't -- I don't want to put a suggestion to you so I 16 want to ask you, and -- and so what was it that you took 17 from these decisions in connection with the quality or 18 competence of his work? 19 DR. JAMES YOUNG: You know, I -- I've 20 indicated very clearly that was -- what was driving my 21 decision at that point in time, I'm not going to change 22 from that position. 23 I was driven at that point in time by all 24 of the factors I indicated earlier in the day and I -- I 25 had this report -- this -- I indicated this report was
2801 there when I made my decision as well, Dr. Smith was 2 going to be disciplined as a result of -- of these 3 measures, and that's -- so I made the decisions I made 4 and -- and had him stop doing cases at that point. 5 MR. MARK SANDLER: I'm -- I'm sorry, 6 you're -- you're now talking about which decision on your 7 part? To have him stop doing cases altogether? 8 DR. JAMES YOUNG: No, this is the -- this 9 is -- this report, as I recall, was around the time that 10 he -- that he -- when I have him stop doing cases where 11 he voluntarily stops, is it not? 12 MR. MARK SANDLER: No. 13 DR. JAMES YOUNG: Well, let me think -- 14 MR. MARK SANDLER: No. 15 DR. JAMES YOUNG: -- where this is then. 16 MR. MARK SANDLER: Yeah. 17 DR. JAMES YOUNG: He's already stopped. 18 MR. MARK SANDLER: Let -- let me orient 19 you. 20 DR. JAMES YOUNG: Yeah. Yeah, I've lost 21 my timing here and I'm sorry -- 22 COMMISSIONER STEPHEN GOUDGE: Were -- 23 MR. MARK SANDLER: These are -- 24 DR. JAMES YOUNG: I believe that was a 25 couple --
2811 MR. MARK SANDLER: These are October -- 2 DR. JAMES YOUNG: -- years later. 3 COMMISSIONER STEPHEN GOUDGE: Were a year 4 and three -- 5 DR. JAMES YOUNG: Yeah. 6 COMMISSIONER STEPHEN GOUDGE: -- quarters 7 (3/4s) after, correct. 8 DR. JAMES YOUNG: Yeah, he's not doing 9 cases at this point. 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Yeah. No, we've had-- 13 DR. JAMES YOUNG: He -- he's only doing 14 the -- the non -- the -- the cases, the -- the Carpenter 15 review, that's right. 16 MR. MARK SANDLER: Exactly right. So -- 17 DR. JAMES YOUNG: Yeah. Right. 18 MR. MARK SANDLER: So what I'm asking you 19 here -- and we'll strike the previous answer because I 20 want -- I want -- I want you to be clear. 21 And I know it's been a long day, so -- so 22 these are decisions that were rendered October 15th of 23 2002, and we've heard from you that it was in January of 24 2001 that you made the decision that he would not be 25 performing autopsies in suspicious cases or homicides,
2821 and that in June of 2001 he was permitted to do 2 medicolegal autopsies of a different nature only. 3 DR. JAMES YOUNG: Mm-hm. 4 MR. MARK SANDLER: With me so far? 5 DR. JAMES YOUNG: Yeah. 6 MR. MARK SANDLER: So these decisions 7 come out in October of 2002. How does it affect your 8 mind set about Dr. Smith? 9 DR. JAMES YOUNG: Well, I guess the 10 number 1 thing it says to me is he's not likely to be 11 doing -- back doing cases that are going to go to court, 12 period. 13 MR. MARK SANDLER: Now is that as a 14 result of the fact that these would provide more of a 15 lightening rod effect, or is that as a result of some 16 determination that you made that -- that these impacted 17 upon the -- the quality or competence of his work? 18 DR. JAMES YOUNG: I -- you know, I can 19 remember all of my thought processes at that point in 20 time. I mean, this report along with what we already 21 have going on is certainly going to result in me saying, 22 We're not going to reinstate him to do that kind of case 23 again. 24 Exactly what I was thinking at that point 25 in time that day, I can't remember. But I would read
2831 through this, I would look at it, I would say, You've 2 been disciplined. 3 These cases there are a lot of issues, I'm 4 not going to -- I'm not going to reinstate him, and I'm 5 not going to have him doing the cases. 6 MR. MARK SANDLER: All right. Now if we 7 go ahead to Volume -- 8 COMMISSIONER STEPHEN GOUDGE: How much 9 longer do you think you will be, Mr. Sandler? 10 MR. MARK SANDLER: If -- if you feel 11 inclined to let me go for another ten (10) minutes or so 12 I could probably wrap up a fair chunk of -- of this 13 section. 14 COMMISSIONER STEPHEN GOUDGE: Would you 15 rather do it now or Monday? I am flagging, I confess. 16 MR. MARK SANDLER: All right. I think -- 17 I think we're doing fine, Commissioner. What I might 18 suggest then, just out of an abundance of caution, is 19 perhaps if we could start a little early on Monday, I'd 20 be grateful. 21 COMMISSIONER STEPHEN GOUDGE: That is a 22 fair deal on my part. Is that okay with you, Dr. Young? 23 DR. JAMES YOUNG: Mm-hm. 24 COMMISSIONER STEPHEN GOUDGE: Why don't 25 we try to start at twenty (20) past 9:00 on Monday, okay?
2841 Now we are on track. I reviewed the 2 cross-examination timetable over the lunch and the break. 3 We just have to conclude Dr. Young, for his sake and the 4 sake of the rest of our schedule, by the end of Tuesday. 5 I have had to cut all of you, or most of 6 you back a little. I think it will accomplish that 7 within the time frame. But I would ask that on Monday 8 you come and on Tuesday you come not just prepared to 9 start a little early on Monday, but prepared if necessary 10 to go, let us say, half an hour longer on each of Monday 11 and Tuesday. 12 I am hopeful we will not need that, but in 13 order that we can all arrange the other parts of our 14 lives that go on outside the hearing room, I thought I 15 should give you that alert. 16 So, Mr. Sandler, Dr. Young, it has been a 17 long day and a half. Have a restful weekend everybody, 18 and come back ready to roll on Monday at 9:20. We will 19 rise now until then. 20 21 (WITNESS RETIRES) 22 23 --- Upon adjourning at 4:40 p.m. 24 25
2851 2 3 Certified correct, 4 5 6 _______________________ 7 Rolanda Lokey, Ms. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25