Policy & Research
A series of policy roundtables were held between February 11, 2008, and February 29, 2008.
The Inquiry has commissioned a series of research papers to assist it in fulfilling its systemic mandate.
Some of the leading experts on forensic pathology and the legal system from Australia, Canada,
the United Kingdom and the United States have contributed.
The opinions expressed in each paper are those of the author(s) and do
not necessarily represent those of the Commission or the Commissioner.
Some of the experts who have prepared the papers were members of the policy panels, along with other experts.
Dr. Stephen Cordner and associates (Victorian Institute for Forensic Medicine and Monash University),
Pediatric Forensic Pathology: Limits and Controversies
This paper examines the evolution, limits and problems of forensic pediatric pathology.
The paper defines the respective fields of forensic pathology, pediatric pathology and
forensic pediatric pathology. It examines the process of forensic pathology with special
attention to the role of the autopsy. It also examines the development of "evidence-based"
forensic pathology. It focuses on the evolution of pediatric forensic pathology, specifically
with regard to sudden infant death syndrome, shaken baby syndrome, Munchausen's Syndrome by
proxy, battered child syndrome, falls, suffocation and asphyxia.
(Posted November 28, 2008 -- as amended February 15, 2008) (786Kb / 191 pages)
Dr. Stephen Cordner and associates (Victorian Institute for Forensic Medicine and Monash University),
A Model Forensic Pathology Service
This paper distinguishes clinical medicine with its primary obligation to patients from forensic medicine
with its obligations to the legal system and the rights of others. It examines questions of training,
examination and certification of forensic pathologists in Canada in comparison to other systems around the world.
In particular, it examines models of forensic pathology in the United Kingdom and Australia including that at
the Victorian Institute for Forensic Medicine. It also examines standards in forensic pathology, the quality
assurance and control measures and considers the appropriate institution to exercise such controls. In addition,
it explores the appropriate relationships between forensic pathologists and bereaved families, police,
child welfare officials, prosecution, defence counsel, researchers and the media. It examines the impact
of the shortage of pathologists and especially forensic pathologists. Finally, it examines best practices for death
investigation including information sources prior to commencement of the autopsy, the use of protocols,
the writing of reports and preparation and review for testimony in court.
(January 14, 2008 -- as amended February 28, 2008) (692Kb / 157 pages)
Professor Lorne Sossin (University of Toronto),
Accountability and Oversight for Death Investigations in Ontario
This paper examines the accountability, oversight mechanisms, institutional, legislative arrangements that have influenced the practice of pediatric pathology in Ontario from 1981 to the present. It examines the Coroner's Act and, The Office of the Chief Coroner, the role of the Hospital for Sick Children, the role of the College of Physicians and Surgeons, and the role of the Ombudsman. It explores the evolution of pediatric death investigations in Ontario with a focus on the oversight and accountability of the pediatric forensic pathologists, both those employed by the Coroner's office and those used on a fee for service basis. The paper also considers the role that affiliation of forensic pathology with teaching hospitals and university departments could have on the oversight, accountability and independence of forensic pathology.
(Posted January 28, 2008 -- as amended February 20, 2008) (265Kb / 72 pages)
Bruce MacFarlane Q.C. (University of Manitoba),
Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System
This paper examines whether the lessons learned from miscarriages of justice should be applied to the death investigation
team, including the interface between forensic pathologists and police, prosecutors and child protection officials. It
explores the predisposing circumstances for miscarriages of justice including the impact of horrific crimes or tragedies,
suspects with a record for past bad misconduct, the demeanor of suspects and their 'normalcy' of their reactions to death.
Other potentially predisposing factors that are examined include low socio-economic status, Aboriginal heritage, and mental
health issues. The paper considers the role of tunnel vision and noble cause corruption as explanatory devices for miscarriages
of justice and whether they are helpful in assessing the fairness and quality of pediatric death investigations. Consideration
has been given to the question of what information the pathologist should receive about possible suspects either from the police
or child protection officials, the possibility of bias through irrelevant information and the documentation of the information
that flows between various criminal justice actors and forensic pathologists. Attention was paid to possible remedies to prevent
tunnel vision or confirmation bias in pediatric death investigations.
(January 21, 2008) (329Kb / 90 pages)
Dr. Randy Hanzlick (Emory University and Fulton County Medical Examiner),
Options for Modernizing the Ontario Coroner's System
This paper examines the Ontario coroner's system in light of the development of and best practices in American medical
examiner systems. It provides a brief description of the Ontario coroner system and a history of coroner and medical
examiner systems in the United States. It examines issues of funding and per capita costs of death investigation systems,
model medical examiner legislation, and the similarities and differences between medical examiner and coroner systems.
It will explore issues specific to Ontario including the role of appointed coroners, the role of inquests and the provision
of death investigation services in a large province.
(January 14, 2008) (251Kb / 53 pages)
Professor Kathryn Campbell (University of Ottawa) and Professor Clive Walker
(University of Leeds), Comparative Experience with Pediatric
Pathology and Miscarriages of Justice in the United Kingdom
This paper examines how expert forensic pathologists are used by courts in
England and Wales, and the impact of their testimony on convictions, including
several pediatric death cases that have resulted in miscarriages of justice.
This includes an overview of how forensic pathologists are designated by
various regulatory bodies, as well as a consideration of the limits of their expertise.
It discusses the use of forensic pathology experts by both prosecution and defense
and the role of the court (judges and parties) as gatekeepers and/or referees of this expertise.
In addition, the paper explains the relationships between legal processes which
adjudge the opinions of forensic pathologists, and the professional regulators
which are determining whether a forensic pathologist has failed to maintain
professional standards. In particular, the authors consider the lessons
learned from the case of Sir Roy Meadow and his involvement in the cases of
Sally Clark, Trupti Patel, and Angela Cannings. It also allows consideration
of the specialized procedures in England and Wales which handled the response to the
findings of miscarriage of justice in those cases, including by the Attorney General
and by the Criminal Cases Review Commission and other independent inquiries.
(November 12, 2007) (256Kb / 58 pages)
Dr. Robert Moles, Networked Knowledge, Australia and Dr. Bibi Sangha
(Flinders University, Australia), Comparative Experience with Pediatric
Pathology and Miscarriages of Justice in Australia
This paper examines the issue of qualification, certification and oversight of forensic
pathologists in Australia as well as the relationship between the offices of coroner and the
chief pathologist. It compares experiential forensic pathology based on years of
experience with evidence-based forensic pathology. It also compares peer review
processes used in South Australia for forensic pathologists and the other forensic
sciences including questions of blind and random testing. It pays particular
attention to the coroner's review (largely undertaken by another pathologist but
approved by a judicial coroner) of Dr. Colin Mannock's findings that three baby
deaths in 1992 and 1993 in Adelaide were the result of natural causes when a
subsequent review found significant evidence to indicate that the deaths were
non-accidental. In this manner, this paper determines how faulty forensic
pediatric pathology can contribute to false negatives such as false findings of
natural death, as well as false positive findings of non-accidental death.
(November 12, 2007) (189Kb / 63 pages)
Dr. Kathy Gruspier (University of Toronto Mississauga), Pediatric Forensic Pathology as Forensic Science:
The role of Science and the Justice System
The author, a forensic anthropologist with legal training, examines forensic pathology in comparison to other
forensic sciences. It offers a critical examination of evidence based forensic pathology in comparison to other
forensic sciences. It explores the hypothesis that historically, forensic pathologists have been relied on by
the legal system although they have less forensic training, certification and testing than other forensic
experts in part because of their medical training and as well, because the discipline of pathology does
not permit the use of double blind testing and other methods of verification that can be used in other
forensic sciences. The author examines how forensic pathologists are qualified as experts in courts in
Canada and the United States and the pressures that they face in the adversarial court system to testify
about matters that lie outside of their expertise. The paper also examines how other expert witnesses
including clinical physicians often testify along with forensic pathologists in baby death cases and
explore the nature and limits of their expertise and steps that can be taken to guard against expert
testimony in baby death cases that go beyond the witness's expertise.
(January 29, 2007 -- as amended July 4, 2008) (262Kb / 81 pages)
Professor Gary Edmond (University of New South Wales), The Role of the
Forensic Pathologist as Expert Witness
The author, an evidence scholar with a background in science, examines how expert witnesses present
science to the court. It situates forensic pathology in light of ongoing
debates about the nature of scientific expertise, independence and objectivity.
It poses the question of whether forensic pathology as a hybrid between law
and medicine is differently constituted than other sciences. It also examines
questions of whether there should be competing experts and/or experts appointed by
the court. It examines recent proposals in the United Kingdom, United States and
elsewhere for the reform of expert testimony including the use of pre-trial conferences
between experts. It also examines how the science of forensic pathology interacts
with the burden of proof in various proceedings -- for example, the reasonable doubt
standard in criminal trials and lower burden of proof in child protection proceedings.
It explores how the legal system should resolve adjudicative questions in the face
of scientific uncertainty and the sometimes exaggerated expectations of the precision and certainty of science.
(November 12, 2007) (275Kb / 71 pages)
Professor Nick Bala (Queens University) and Professor Nico Trocmé (McGill University),
Child Protection Issues and Pediatric Forensic Pathology
This paper examines child protection issues, in particular, those relating to the safety and best interests
of surviving children after a baby's death. It examines rising awareness of child abuse in Ontario and what
is known about the likelihood of subsequent death or abuse after one child in a family has died from
non-accidental causes. It considers the purposes and processes of the child welfare system and the range of
dispositions open in child welfare proceedings including options short of full apprehension. It also reviews
the interaction of child protection proceedings with criminal investigations and prosecutions in baby death
cases including questions concerning the admissibility of both bad conduct and forensic pathology evidence
in child protection proceedings. Some attention is devoted to the particular circumstances of Aboriginal
people and their involvement with the child protection system.
(December 21, 2007) (232Kb / 70 pages)
Professor Christopher Sherrin (University of Western Ontario),
Defending a Pediatric Death Case: Problems and Solutions
This paper examines defence representation including legal aid funding in criminal cases arising from pediatric death.
It explores whether there is sufficient funding for and the availability of competing expertise in the area of forensic
pediatric pathology. It also examines ethical and legal questions concerning the entry of guilty pleas (or the refusal
to challenge evidence presented by the Crown) to manslaughter, infanticide or other lesser included offences, to murder
charges and the implications of a murder charge for the defence in such cases.
(December 27, 2007) (172Kb / 63 pages)