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 17 Held at: Metropolitan Hotel 18 Toronto, Ontario 19 20 21 ******************** 22 23 24 October 19th 2007 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 6 Luisa Ritacca (np) ) Office of the Chief Coroner 7 Brian Gover (np) ) for Ontario 8 9 Jane Langford (np) ) Dr. Charles Smith 10 Niels Ortved (np) ) 11 Erica Baron 12 13 William Carter (np) ) Hospital for Sick Children 14 Barbara Walker-Renshaw (np) ) 15 Kate Crawford (np) ) 16 17 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 18 Association 19 20 Mara Greene ) Criminal Lawyers' 21 Breese Daveis (np) ) Association 22 Joseph Di Luca (np) ) 23 24 25
31 APPEARANCES (CONT'D) 2 James Lockyer ) William Mullins-Johnson, 3 Sherry Sherret-Robinson and 4 seven unnamed persons 5 6 Peter Wardle ) Affected Families Group 7 Julie Kirkpatrick (np) ) 8 Daniel Bernstein (np) ) 9 10 Louis Sokolov ) Association in Defence of 11 Elizabeth Widner (np) ) the Wrongly Convicted 12 Paul Copeland (np) ) 13 14 Jonathan Rudin (np) ) Aboriginal Legal Services 15 Mandy Eason (np) ) of Toronto and Nishnawbe 16 Kimberly Murray (np) ) Aski-Nation 17 18 Suzan Fraser (np) Defence for Children 19 International - Canada 20 21 William Manuel (np) ) Ministry of the Attorney 22 Heather Mackay ) General for Ontario 23 Erin Rizok (np) ) 24 25
41 TABLE OF CONTENTS 2 Page No. 3 Submissions by Ms. Linda Rothstein 5 4 Submissions by Mr. Peter Wardle 14 5 Submissions by Mr. James Lockyer 21 6 Submissions by Ms. Heather MacKay 31 7 8 9 Certificate of transcript 36 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
51 --- Upon commencing at 9:05 a.m. 2 3 COMMISSIONER STEPHEN GOUDGE: Good 4 morning. Well, Ms. Rothstein, this morning I think I 5 know what we're doing, but why don't you lead us through 6 it. 7 8 SUBMISSIONS BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Thank you very 10 much, Commissioner. Good morning. 11 This morning we are dealing with two (2) 12 Notices of Motion for limited Non-Publication Orders. 13 It's my suggestion at the start, Commissioner, that in 14 order to facilitate the submissions of the parties that 15 are requesting Publication Orders and indeed, your own 16 questions, that you impose a Publication Order on the 17 names of any persons identified during the submissions 18 this morning so as not to undermine any Orders that you 19 may see fit to make. 20 You have the authority to impose such an 21 Order under Section 4 of the Public Inquiries Act. 22 COMMISSIONER STEPHEN GOUDGE: I think 23 that makes sense. I take it nobody has any objection to 24 that? 25 What we want to do, I think, is to be able
61 to have a fairly frank discussion without any risk that 2 what is discussed here itself will become some form of 3 leak to any Order I may ultimately make. Okay? 4 MS. LINDA ROTHSTEIN: Thank you, 5 Commissioner. 6 7 (PAN ON PUBLICATION - IDENTITY) 8 9 COMMISSIONER STEPHEN GOUDGE: So that 10 Order is made, just for those members of the public who 11 may be here, or members of the press; I don't know if 12 there are any. Okay. 13 MS. LINDA ROTHSTEIN: Thank you, 14 Commissioner. 15 The second matter is a matter of notice. 16 In accordance with the dicta of the Supreme Court of 17 Canada in the Dagenais and CBC case, we have given notice 18 to representatives of the media of both motions, 19 together, of course, with all of the parties. And 20 indeed, notice has been published on the Inquiry's 21 website. 22 We made -- expressed that the media had a 23 right to make submissions with respect to the propriety, 24 or scope, or nature of either of the Orders that are 25 sought, either by your Commission Counsel or Mr. Lockyer
71 this morning. Mr. Lockyer's submissions were in written 2 form, as you know, and they were posted on our website. 3 I can tell you, Commissioner, that no 4 representatives of the media have expressed any interest 5 in participating in these motions. So we take it from 6 that, sir, that there is no objection to either of the 7 orders that are sought on behalf of any representatives 8 of the media. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 MS. LINDA ROTHSTEIN: And that takes me 11 then, sir, to the first motion which is our motion, that 12 is to say, the motion brought by Commission Counsel. 13 It's set out in a notice of motion which you have and has 14 been distributed again to all parties with standing. I 15 can tell you that no party opposes our motion and, 16 specifically, the relief which we seek that is set out in 17 quite detailed form, as you know, in Schedule A. 18 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 19 MS. LINDA ROTHSTEIN: Commissioner, if I 20 may, it is worth reiterating that our motion is brought 21 in the context of a public inquiry whose mandate is to 22 restore public confidence in the criminal justice system 23 in relation to its use and reliance on pediatric forensic 24 pathology. 25 As you explained in your opening statement
81 on June the 18th, while the Commission will not be 2 reporting on individual cases, it will be necessary, once 3 our public hearings get going, to review individual cases 4 for the purposes of determining what systemic issues they 5 raise. We do need to learn enough facts about what 6 happened in order to make practical and effective 7 recommendations. 8 A number of those cases, Commissioner, 9 have been the subject of intense media scrutiny, if not 10 notoriety. A number of those cases and the key 11 protagonists in those cases were, indeed, the first 12 proponents of the need for a public inquiry of this 13 nature in kind. They were the ones who were perhaps 14 first to argue that the interface between pediatric 15 forensic pathology and the justice system needed to be 16 publicly explored. 17 All of this argues in favour of an open 18 and transparent public hearing process as, indeed, is the 19 presumptive language of the Public Inquiries Act itself. 20 However, Commissioner, the Commission is also required to 21 comply with statutory non-publication provisions and 22 specifically those contained in the Young Offend -- Young 23 Offenders Act, the Youth Criminal Justice Act, and the 24 Child and Family Services Act. 25 Briefly put, the YOA and its successor,
91 the YCJA, protect the identities of young persons and 2 children charged under those Statutes. The Child and 3 Family Services Act protects the identity of children who 4 are witnesses or participants in child protection 5 proceedings. This requires us, we say, Commissioner, to 6 anonymize the identities of many persons in many of the 7 cases that we will be considering. 8 Commission Counsel had prepared an 9 identification protocol which we propose will become 10 operational in the course of our public hearings. As I 11 mentioned, it's set out in Schedule A of our Notice of 12 Motion. 13 We submit to you that the compliance with 14 this protocol, together with the other confidentiality 15 protocols that Commission Counsel has distributed to the 16 parties, will ensure that the identities of children that 17 were the subject of the Youth Offenders Act and the Child 18 and Family Services Act will be protected, while at the 19 same time ensuring that the mandate of this Public 20 Inquiry is carried out in a manner that's sufficient -- 21 that is sufficiently open and transparent, that it will 22 achieve its fundamental objective of restoring public 23 confidence in the practice and use of pediatric forensic 24 pathology in investigations and criminal proceedings. 25 In summary, the combined effect of these
101 protocols includes firstly - and this is a bit of an 2 operational -- an organizational importance - court 3 orders under the Youth Offenders Act require us to redact 4 names and identify -- and identifying characteristics of 5 persons subject to the YOA and the YCJA. 6 And, Commissioner, we have obtained court 7 orders which allow us to have that information and put it 8 into the public record, provided that with redactions are 9 actually made to the names of those young offenders, and 10 any other material identifying characteristics. 11 Commission Counsel has been hard at work 12 with representatives for those persons identifying the 13 documents, and the redactions that are necessary to 14 fulfill, or to make a -- to comply with those court 15 orders. 16 COMMISSIONER STEPHEN GOUDGE: And does a 17 redaction mean completely blacking it out? 18 MS. LINDA ROTHSTEIN: Yes, it does. 19 Secondly, when we go public, what is 20 contemplated, Commissioner, is that the questions of 21 counsel and you and others who are asking questions in 22 the public inquiry, and the answers and testimony of 23 witnesses who are providing you with evidence of the 24 public inquiry, will conform with the identification 25 protocol which is set out in Schedule A.
111 That will take some work, Commissioner. 2 That will take us all to learn by heart the pseudonym 3 treatment that is the guidepost of this schedule. 4 It requires as well, that overview reports 5 will be redacted in order to insure compliance with this 6 protocol before they are disseminated to members of the 7 public. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 MS. LINDA ROTHSTEIN: It requires as 10 well, that public access to documents which will become 11 part of the public record in your hearing process, will 12 have to be redacted to meet this protocol, together with 13 other privacy interests that may be significant, such as 14 those that occur under PHIPPA. 15 And so I can tell you, Commissioner, that 16 counsel for the Hospital For Sick Children has commenced 17 discussions with us as to the appropriate redactions that 18 may need to be made to documents before they are provided 19 to members of the public, in order to conform with those 20 statutes. 21 As you know, Commissioner, it is our 22 intention to webcast your proceedings, again, in order to 23 ensure that this public inquiry reaches as many members 24 of the public as it feasibly can. That said, that poses 25 some difficulties particularly for those counsel, who
121 like me, from time to time stumble over their words, and 2 perhaps make inadvertent mistakes when identifying 3 individuals. 4 Our operational program, Commissioner, 5 will allow us, through our registrar, to delay the 6 webcast in order, hopefully, to correct all inadvertent 7 mistakes made by counsel or others in complying with the 8 identification protocols set out in Schedule A. 9 And finally, Commissioner, I can tell you 10 that while there are screen -- screens on all counsels' 11 desks which will simultaneously transmit till -- to them 12 the documents which counsel refer to which have not been 13 redacted in accordance with this protocol, the public 14 screens in the hearing room will not be broadcasting the 15 documents to members of the public. They will only be 16 broadcasting the witness. 17 And so together with the confidentiality 18 protocols, which all counsel have signed, we submit to 19 you that all reasonable steps have been taken to ensure 20 that the privacy of the individuals who require 21 protection under the statutes that I've identified, and 22 indeed that may require protection as a result of the 23 orders which Mr. Lockyer seeks and may indeed obtain, 24 will be fairly protected. 25 COMMISSIONER STEPHEN GOUDGE: Okay. The
131 schedule contemplates using initials, is that for -- in 2 some cases -- 3 MS. LINDA ROTHSTEIN: Yes. 4 COMMISSIONER STEPHEN GOUDGE: -- is that 5 for the YOA cases, or the YCGA cases? 6 MS. LINDA ROTHSTEIN: Yes. 7 COMMISSIONER STEPHEN GOUDGE: Okay. So 8 that's the way those individuals will be referenced in 9 the hearing room? 10 MS. LINDA ROTHSTEIN: Yes. 11 COMMISSIONER STEPHEN GOUDGE: And the 12 documents that refer to them will be completely redacted 13 so the names of those people are completely blacked out? 14 MS. LINDA ROTHSTEIN: No. Redacted, not 15 initials. 16 COMMISSIONER STEPHEN GOUDGE: Okay. So 17 the documents get completely redacted? 18 MS. LINDA ROTHSTEIN: Yes. 19 COMMISSIONER STEPHEN GOUDGE: The 20 references are initials? 21 MS. LINDA ROTHSTEIN: Yes. 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 Okay, that's fine. I just wasn't sure about that 24 distinction. Okay. 25 MS. LINDA ROTHSTEIN: Commissioner, Mr.
141 Wardle is here on behalf of the affected families group. 2 He has written to Commission Counsel and endorsed the 3 approach we have taken, at least in so far as it affects 4 his clients. And I believe he would welcome a brief 5 opportunity to speak to our Motion before we get to Mr. 6 Lockyer's Motion. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 Mr. Wardle...? 9 10 SUBMISSIONS BY MR. PETER WARDLE: 11 MR. PETER WARDLE: Thank you, Mr. 12 Commissioner. 13 Mr. Commissioner, I want to say first on 14 behalf of my clients that we support the identification 15 protocol that's been developed by Commission staff 16 dealing with confidentiality measures. 17 I just want to say a word about one (1) 18 element of that proposal, which is that members of my 19 group, in particular, would be identified by their full 20 names during the Hearing rather than in some other 21 fashion. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 MR. PETER WARDLE: My clients, as you 24 know, have -- their cases have received widespread 25 publicity in the press over a fairly lengthy period of
151 time. Some of them have given media interviews about 2 their experiences, and their names are part of the public 3 record dealing with the events that led up to the calling 4 of this Inquiry. 5 In my submission, it would be contrary to 6 logic and common sense to refer to them in some other 7 fashion than by their full names during this Inquiry out 8 of a concern that identifying them by their full names 9 could lead to the identification of a child who is or was 10 a member of the family in question, and was subject to 11 child protection proceedings. 12 I think, with respect, that ship has 13 sailed. These cases have been out there for many years, 14 that they're been very widely reported, and it's really 15 too late to close that particular door. 16 More importantly -- 17 COMMISSIONER STEPHEN GOUDGE: How many of 18 the children in your cases, Mr. Wardle, are no longer 19 under age? I mean, because a number of these events 20 happened -- 21 MR. PETER WARDLE: There is one (1) in 22 particular who's no longer under age. 23 COMMISSIONER STEPHEN GOUDGE: Who's that? 24 MR. PETER WARDLE: That is XXXX daughter, 25 XXXX --
161 COMMISSIONER STEPHEN GOUDGE: Okay. 2 MR. PETER WARDLE: -- who's now -- 3 COMMISSIONER STEPHEN GOUDGE: She's about 4 eighteen (18) -- 5 MR. PETER WARDLE: -- eighteen (18) or 6 nineteen (19). 7 COMMISSIONER STEPHEN GOUDGE: -- because 8 I met her. 9 MR. PETER WARDLE: Correct. 10 COMMISSIONER STEPHEN GOUDGE: Yeah. 11 MR. PETER WARDLE: But there were other 12 children in some of the families -- for example, in the 13 XXXX case, there is a child who was the subject of child 14 protection proceedings who's no longer a -- a part of 15 that family -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MR. PETER WARDLE: -- who was adopted. 18 So there -- there could be concerns that identifying XXXX 19 during the Hearing, might inadvertently lead to 20 identification of that particular individual. 21 And there are similar concerns in some of 22 the other cases. In the XXXX case, for example, there is 23 a boy who's now a teenager -- 24 COMMISSIONER STEPHEN GOUDGE: Right 25 MR. PETER WARDLE: -- who was the subject
171 of child protection proceedings. 2 COMMISSIONER STEPHEN GOUDGE: And who was 3 adopted? 4 MR. PETER WARDLE: No. Who was not 5 adopted, but there were unsuccessful child protection -- 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 MR. PETER WARDLE: -- proceedings in this 8 case. 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 MR. PETER WARDLE: So the concern would 11 be, you know, on the one hand, we have the Statute. On 12 the other hand we have -- these cases have been in the -- 13 in the public domain, with XXXX in particular. You only 14 have to go to the Court of Appeal file and find the case, 15 and find all the information to find the name of the 16 parents. 17 So it doesn't make a lot of sense to have 18 the parents named in some other fashion than their full 19 names. 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 MR. PETER WARDLE: But there's a -- a bit 22 of a more important principle at play, and I know for one 23 of my clients in particular, XXXX, his family pushed very 24 hard for all of these matters to see the light of day. 25 He was one of the people who pushed for a public inquiry,
181 pushed for the coroner's review. 2 And I know from speaking to him, he feels 3 very strongly that his name and that of his daughter 4 should be referred to, directly, by the full names during 5 this Inquiry. 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 MR. PETER WARDLE: So if I can put it 8 this way, he has -- he and his family, and all of my 9 clients, have an interest -- a direct interest in that 10 happening. 11 COMMISSIONER STEPHEN GOUDGE: And in that 12 case, the child is still part of the family. 13 MR. PETER WARDLE: In that case, the 14 child is part of the family. Now, the child under this 15 protocol is not gonna be named by full name. 16 COMMISSIONER STEPHEN GOUDGE: Right. I 17 understand that. I understand that. 18 MR. PETER WARDLE: So the child is only 19 going to be referred to -- 20 COMMISSIONER STEPHEN GOUDGE: But so far 21 as there is any purpose of interpretation of the 22 legislation, it's one that the entire family would say 23 that's what we think ought to happen? 24 MR. PETER WARDLE: Correct. And as you 25 know as well, there's -- you know, this is a public
191 inquiry; there is the openness principle which the 2 Supreme Court has spoken of in a number of these cases. 3 And my clients are in a slightly different position than 4 Mr. Lockyer's clients, as he's gonna tell you about in a 5 moment. 6 So those are my submissions. 7 COMMISSIONER STEPHEN GOUDGE: And I take 8 it in a number of these cases, there would have been 9 public proceedings. I mean, you've got civil litigation 10 going where all this is being done by full names, I take 11 it. 12 MR. PETER WARDLE: That's correct. And 13 in fact in the civil litigation, although I wasn't 14 responsible for drafting the initial statement of claim. 15 I looked at it recently and actually names a number of 16 the children, and it could be argued that that, perhaps, 17 is contrary to the Statute. 18 COMMISSIONER STEPHEN GOUDGE: Yes. I'm 19 sure if one looks in the court files of some of the 20 criminal proceedings, one sees full names. I don't 21 know -- 22 MR. PETER WARDLE: In any event, I 23 commend your staff. I think they've done a marvellous 24 job putting this together. 25 COMMISSIONER STEPHEN GOUDGE: Well, it's
201 clear from the work that's gone into it that this is an 2 area not without its difficulties, and we do want to run 3 the best public inquiry we can. So thanks for your 4 submissions. 5 MR. PETER WARDLE: Thank you, sir. 6 MS. LINDA ROTHSTEIN: Thank you, 7 Commissioner. 8 Moving on then to Mr. Lockyer's motion, 9 let me just introduce it by saying and reminding you, 10 sir, that there is no objection taken by any member of 11 the press to Mr. Lockyer's motion nor, indeed, is there 12 any objection by any of the parties to this Public 13 Inquiry to the request by Mr. Lockyer that there be a ban 14 on the names of his seven (7) clients. 15 Now, counsel for Dr. Smith has written to 16 us a letter, dated October 17, 2007. Sir, I believe you 17 have it, and a copy has been circulated to the parties. 18 You will see in that letter that Mr. 19 Ortved or rather, Ms. Baron, records that Dr. Smith does 20 not take issue with a publication ban on the names of Mr. 21 Lockyer's clients. However, the request to ban the 22 publication of any information that might result in 23 revealing the identities of Mr. Lockyer's clients has, in 24 our view, the potential of interfering with the mandate 25 of the Inquiry by preventing the parties with standing
211 from fully exploring the death investigations that form 2 the foundation of this Inquiry. 3 I've spoken to Mr. Lockyer about that 4 concern raised by counsel for Dr. Smith, and he's going 5 to speak directly to the scope of the order which he 6 seeks. Ms. Baron is here today on behalf of Dr. Smith 7 and tells me and Mr. Lockyer that she's hopeful that she 8 won't have any further submission to make -- 9 COMMISSIONER STEPHEN GOUDGE: Okay. 10 MS. LINDA ROTHSTEIN: -- and ultimately 11 it will depend on the precise contours of the order which 12 Mr. Lockyer seeks. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 MS. LINDA ROTHSTEIN: So I turn it over 15 then to Mr. Lockyer. 16 COMMISSIONER STEPHEN GOUDGE: Okay. I 17 should have asked. I take it no other counsel have any 18 submissions on Commission Counsel's motion? I see all 19 heads shaking as opposed to nodding. 20 Mr. Lockyer...? 21 22 SUBMISSIONS BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: Well, everyone's 24 being very nice to me this week, Mr. Commissioner. Every 25 time I ask for something, I seem to get it. I'm thinking
221 maybe I should be asking for some more things somewhere. 2 As you know, Mr. Commissioner, I was -- I 3 sought standing for nine (9) -- nine (9) people and -- 4 and you gave it to all of them as a group. 5 Two (2) of them there's been a great deal 6 of publicity about, XXXX case, and I was just looking at 7 Commission Counsel's proposal where he's concerned and I 8 have no problem with it at all. 9 Although I would think when we refer to 10 XXXX, I -- I don't really mind if anyone ever used her 11 last name but apart from that, I -- I have no problem 12 with it at all. 13 Where XXXX's concerned, again I have no 14 problem with Commission Counsel's proposal. Although 15 certainly many of the names that appear on the Commission 16 Counsel sheet that we're asked to use pseudonyms, so to 17 speak, for are identified in documents that are now in 18 the Court of Appeal by full name. There's been no 19 redacting in the Court of Appeal, but I -- I don't see 20 any harm in the way it's proposed. It seems to me we can 21 manage with the proposal -- 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 MR. JAMES LOCKYER: -- presented by 24 Commission Counsel. 25 And that brings me to the seven (7) that -
231 - that I'm here for, really, this morning. And -- and 2 they -- they really are a separate and apart group in 3 that, even within the nine (9), because they did not play 4 any role in the events that led up to the formation of 5 this Inquiry. Or, indeed, there was no lobbying on their 6 part for the setting up of the Inquiry. Certainly in the 7 case of many of them rather to the contrary, in a -- in a 8 sense they -- they do not welcome publicity at all and 9 very understandably so. 10 It may be that as time goes on these -- 11 their cases are being studied now by -- by AIDWYC, by -- 12 by myself, on behalf of AIDWYC, by -- by the Crown's 13 office, potentially by the courts, and it may be that as 14 time moves on one (1) or more of the seven (7) will 15 become a matter of public knowledge, so to speak, again. 16 I say "again" because they were at the time of their 17 original cases. 18 I'm very conscious, as Ms. Rothstein was, 19 in -- as she said at the opening this morning, that this 20 is a public inquiry, and it's obviously unusual for 21 persons with -- with standing to seek a ban on the 22 publication of -- of their identities. 23 Section 4 of the Public Inquiries Act, 24 while not very aptly worded, does seem to me to provide 25 you with a direct jurisdiction within your mandate to
241 make a publication ban of the type sought, in that you 2 can consider, as the section puts it, that: 3 "The desirability of avoiding 4 disclosure in the interest of any 5 person affected, if it outweighs the 6 desirability adhering to the principle 7 that -- of adhering to the principle 8 that hearings be open to the public." 9 And that can really be seen as a 10 codification for public inquiry purposes of the Dagenais 11 and Mentuck test. It seems to me at a more 12 comprehensible level, do the solitary effects of a 13 publication ban outweigh its deleterious effects. 14 The balancing particularly includes, in my 15 submission, a consideration of your terms of reference. 16 You are, specifically, instructed not to report on any 17 individual cases that have been subject to a criminal 18 proceeding that incorporates then within it all seven (7) 19 of the people whose interests I'm addressing at the 20 moment. 21 The -- on the other hand, you are gonna 22 consider information that arises out of the cases of all 23 seven (7) people. 24 The seven (7) people are, in summary, four 25 (4) mothers and three (3) fathers. It would be, in my
251 submission, most unfortunate, if the cases that they had 2 to endure so many years ago, the tragedies that they 3 endured so many years ago, and of course a lot of 4 personal information about each and every one of them 5 that was in the media so many years ago; in the case of - 6 - of many, if not all, psychiatric reports were filed and 7 became a matter of public knowledge, for example, about 8 each of the individuals, in my submission, it would be 9 most unfortunate if all of that were potentially to 10 become public now, by way of information that could be 11 attributed to the individuals. 12 To address the letter that was provided, 13 or -- or sent by Dr. Smith's counsel, I think -- I think 14 it -- it raises matters that -- that aren't of concern 15 within this application. I understand that one could 16 think that there might have been a problem, insofar as 17 the Motion asked that any information that might tend to 18 reveal the identities of the seven (7) applicants should 19 also be -- there should also be a ban on publication in 20 that regard as well. 21 But thinking it through, and -- and I 22 reserve, if I may, the right to reconsider aspects of 23 each case as time goes on. But certainly looking at it 24 now from a very simplistic approach, it seems to me that 25 the ban that I'm seeking could be reduced to a ban on the
261 names of the parents, on the names of relatives who have 2 the same last name as the deceased child or the parent 3 who was charged, and in some cases, a ban on the location 4 of the death. 5 COMMISSIONER STEPHEN GOUDGE: When you 6 say ban in all these three (3) instances, Mr. Lockyer, 7 how do we refer to them? 8 MR. JAMES LOCKYER: Well, I've provided 9 everyone, and yourself -- 10 COMMISSIONER STEPHEN GOUDGE: Oh, I've 11 got it here. I've got it here. 12 MR. JAMES LOCKYER: -- with a proposal -- 13 COMMISSIONER STEPHEN GOUDGE: I just 14 hadn't seen it. 15 MR. JAMES LOCKYER: -- yes, proposed 16 pseudonym for the cases of the seven (7) applicants. 17 And -- 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 MR. JAMES LOCKYER: -- it's -- it's -- 20 I've tried to be exhaustive. I don't guarantee it is, 21 but it's -- it's meant to be exhaustive. I've adopted 22 the same idea as -- 23 COMMISSIONER STEPHEN GOUDGE: Same 24 terminology basically, okay. 25 MR. JAMES LOCKYER: Correct.
271 COMMISSIONER STEPHEN GOUDGE: Okay. 2 MR. JAMES LOCKYER: You use the child and 3 then work through relatives of the child -- 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 MR. JAMES LOCKYER: -- by way of 6 referring to people. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 MR. JAMES LOCKYER: You'll see that the - 9 - in the case -- in the first case, I've asked for a ban 10 on the reference to the city in question. 11 The second, third, and fourth cases -- 12 sorry, the second and third cases, it seems to me that 13 it's unlikely that to refer to the city in question would 14 reveal identity. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 MR. JAMES LOCKYER: The fourth case I 17 would normally, given the size of the city, not seek a 18 ban on reference to the place. But given the 19 multiplicity of proceedings that took place in that case 20 I -- 21 COMMISSIONER STEPHEN GOUDGE: Mm-hm. 22 MR. JAMES LOCKYER: -- felt that I should 23 ask for no reference to the city in question. 24 In the cases of -- in the next case, the 25 KW case, it's -- I felt it was a small enough city to --
281 to ask that there be no reference to a name of the city 2 and likewise, with respect, to the last case as well. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 MR. JAMES LOCKYER: So -- 5 COMMISSIONER STEPHEN GOUDGE: And you've 6 used initials in cases where there were corollary YOA 7 proceedings or something? I mean, why initials in some 8 cases and names in others, first names? 9 MR. JAMES LOCKYER: Okay. Fair enough. 10 Because I thought the first name was sufficiently 11 unusual, that it might in itself enable identification. 12 COMMISSIONER STEPHEN GOUDGE: I see. I 13 see. I see. Okay. 14 MR. JAMES LOCKYER: I think I've only 15 done that -- 16 COMMISSIONER STEPHEN GOUDGE: Two (2) or 17 three (3) times. 18 MR. JAMES LOCKYER: Well, the first two 19 (2), of course, will be last names, that's the problem. 20 COMMISSIONER STEPHEN GOUDGE: Yeah. 21 MR. JAMES LOCKYER: So there you'd have a 22 straight identification. 23 COMMISSIONER STEPHEN GOUDGE: Right, 24 right. No, that's fine. 25 MR. JAMES LOCKYER: Yeah.
291 COMMISSIONER STEPHEN GOUDGE: I just 2 wanted to know what your rationale was for 3 differentiating. 4 MR. JAMES LOCKYER: Yeah, I've done it on 5 two (2) of the others you'll see and -- 6 COMMISSIONER STEPHEN GOUDGE: Yes, 7 they're... 8 MR. JAMES LOCKYER: -- just because of 9 the unusual names. 10 COMMISSIONER STEPHEN GOUDGE: Right. 11 Okay. 12 MR. JAMES LOCKYER: I think that's -- 13 that's really what I wanted to say, Mr. Commissioner. 14 COMMISSIONER STEPHEN GOUDGE: Okay. So I 15 take it your request is for an order that would reflect 16 the protocol that you've provided? 17 MR. JAMES LOCKYER: Indeed. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 Okay, that's -- that's helpful. Okay. 20 MR. JAMES LOCKYER: Thank you. 21 COMMISSIONER STEPHEN GOUDGE: Hearing 22 that, Ms. Baron, do you have any submission you want to 23 make? 24 MS. ERICA BARON: I have no objections, 25 sir.
301 COMMISSIONER STEPHEN GOUDGE: Commission 2 Counsel...? 3 MS. LINDA ROTHSTEIN: No. No more 4 submissions, Commissioner. 5 COMMISSIONER STEPHEN GOUDGE: Any other 6 participants? 7 MR. JAMES LOCKYER: Perhaps my proposed 8 pseudonyms could be filed. 9 COMMISSIONER STEPHEN GOUDGE: Why don't I 10 just take it? I think if I might just take it we're -- 11 MR. JAMES LOCKYER: Yes, having said 12 that -- 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 MS. LINDA ROTHSTEIN: Commissioner, we're 15 all going to have to get used to a regime where we're not 16 actually marking exhibits. And the counsel in the room 17 may know if... 18 19 (BRIEF PAUSE) 20 21 MS. LINDA ROTHSTEIN: Commissioner, 22 everyone in the room is going to get -- have to get used 23 to a regime in which we're not formally marking exhibits. 24 We're all minded to do it whenever we get a chance, but 25 as you will know from reading one of our --
311 COMMISSIONER STEPHEN GOUDGE: Yes, there 2 are lots of other reasons for doing that. I mean, we're 3 going to get along a lot quicker using the proposal you 4 made for marking documents. 5 MS. LINDA ROTHSTEIN: Correct. 6 COMMISSIONER STEPHEN GOUDGE: Okay. 7 MS. LINDA ROTHSTEIN: So, Commissioner, I 8 -- I think unless there are some other questions that you 9 have, there's one (1) last matter and that is a very 10 brief sort of discussion of one (1) case we haven't yet 11 dealt with. 12 Ms. Mackay is here on behalf of the 13 Ministry of Attorney General and she wishes to speak to 14 the matter, if she may. 15 COMMISSIONER STEPHEN GOUDGE: By all 16 means. 17 Ms. Mackay...? 18 19 SUBMISSIONS BY HEATHER MACKAY: 20 MS. HEATHER MACKAY: Good morning, 21 Commissioner. I just wanted to make brief submissions on 22 behalf of the Province with respect to the matter of 23 XXXX. 24 As you're aware, the police investigation 25 in that matter remains open and, therefore, there is some
321 concern about the publication of information in that 2 matter. The Province has been working with Commission 3 Counsel to resolve those issues, and we certainly 4 appreciate their efforts to do so, and we're hoping to 5 work through those issues in the next couple of weeks to 6 resolve them before the hearings start. 7 However, we did want to alert the 8 Commission that if we aren't able to come to a resolution 9 on that, it may be the subject of a further motion by the 10 Province. And we're certainly aware of the timelines 11 involved in the Inquiry so we would do that as 12 expeditiously as possible, but we just did want to alert 13 you to the fact that this may be an issue. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 Okay, that's helpful. I know you're both working hard 16 and I'm confident you'll be able to work something out 17 but if you can't, I'll certainly resolve it if you bring 18 it to me. Okay? 19 MS. HEATHER MACKAY: Thank you very much, 20 Commissioner. 21 COMMISSIONER STEPHEN GOUDGE: Okay. So - 22 - Mr. Lockyer...? 23 MR. JAMES LOCKYER: Sorry. It just 24 occurred to me, Mr. Commissioner, that still leaves four 25 (4) others, if you consider the thirteen (13) cases in
331 which individuals were found guilty of a crime. On one 2 of them it seems to me is probably not a problem at all; 3 it's a matter of public record having been argued in the 4 Supreme Court of Canada just last week. 5 COMMISSIONER STEPHEN GOUDGE: That's 6 Toronto? 7 MR. JAMES LOCKYER: Yeah. So that leaves 8 three (3). One (1) of them was found not guilty by 9 reason of insanity and I know her counsel and I know that 10 she has -- is -- is desperate that there be no publicity 11 about her case. 12 I'm not her counsel. I'm not speaking on 13 her behalf. I'm just giving you a piece of information 14 that I've received. 15 And the other two (2) -- I can only think 16 of the name of one (1) of them as I stand here, but I'm 17 wondering if -- 18 COMMISSIONER STEPHEN GOUDGE: It's 19 perhaps worth you discussing this with Commission 20 Counsel. 21 MR. JAMES LOCKYER: Yes. 22 COMMISSIONER STEPHEN GOUDGE: I just 23 looked at the schedule that is attached to Commission 24 Counsel's motion and it addresses from the perspective of 25 the legislative constraints, several of the other cases.
341 MR. JAMES LOCKYER: Does it? I haven't 2 even checked it. 3 COMMISSIONER STEPHEN GOUDGE: Yes. It 4 addresses Toronto, for example. 5 MR. JAMES LOCKYER: Right. 6 COMMISSIONER STEPHEN GOUDGE: Okay. So 7 that there is an address there of some constraints. I 8 can't do any better than you in saying which of the other 9 three (3), if any, are addressed as well by Commission 10 Counsel's -- 11 MR. JAMES LOCKYER: Mm-hm. 12 COMMISSIONER STEPHEN GOUDGE: -- proposed 13 order. 14 MR. JAMES LOCKYER: Okay. One (1) is 15 covered, I hear, so that leaves two (2). I don't think-- 16 COMMISSIONER STEPHEN GOUDGE: Which is 17 the one, Ms. Rothstein, in addition to Toronto? 18 MS. LINDA ROTHSTEIN: XXXX case is 19 covered by our schedule. 20 COMMISSIONER STEPHEN GOUDGE: XXXX. And 21 that leaves two (2) others. 22 MR. JAMES LOCKYER: Now, the -- the not 23 guilty by reason of insanity one, I would think would be 24 a particular one that we might -- that perhaps should be 25 given some thought.
351 COMMISSIONER STEPHEN GOUDGE: There was 2 only one (1) child in that case, wasn't there? Or do you 3 remember the facts -- 4 MR. JAMES LOCKYER: Yes, but I think -- 5 COMMISSIONER STEPHEN GOUDGE: -- well 6 enough to know it? So there wouldn't have been a CFS -- 7 MR. JAMES LOCKYER: No. 8 COMMISSIONER STEPHEN GOUDGE: -- a 9 proceeding in that case, so we're into what you would 10 describe as common law principles for that? 11 MR. JAMES LOCKYER: Yes. And I would -- 12 I would think in her case, there would be some severe -- 13 potentially severe consequences to her from a pscyhi -- I 14 don't even know -- 15 COMMISSIONER STEPHEN GOUDGE: Well, my 16 only concern, just to table it, is the notice question, 17 that is, whether they know what we're doing. And they 18 certainly know the Inquiry is going on. 19 MR. JAMES LOCKYER: Yeah. Anyway, I -- I 20 raise that -- 21 COMMISSIONER STEPHEN GOUDGE: Why don't 22 you raise that with Commission Counsel -- 23 MR. JAMES LOCKYER: Yes. 24 COMMISSIONER STEPHEN GOUDGE: -- and if 25 there's a determination to be made, and a further order
361 to be made, then the Commission Counsel will bring it to 2 my attention. 3 MR. JAMES LOCKYER: Okay. 4 COMMISSIONER STEPHEN GOUDGE: I think 5 that's the sensible way to proceed, but I'd like to make 6 sure we sort of covered those that we know of out there. 7 Okay? 8 MR. JAMES LOCKYER: Yes. 9 COMMISSIONER STEPHEN GOUDGE: Okay. So I 10 think that concludes this morning for us. 11 Thank you all very much. This is not an 12 easy area. I'm going to reserve my decision on both 13 requests, but I'll try to get you something as soon as I 14 can so and we're adjourned. 15 16 --- Upon adjourning at 9:40 a.m. 17 18 19 Certified correct, 20 21 22 _____________________ 23 Wendy Warnock, Ms. 24 25