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Inquiry into Pediatric Forensic Pathology in Ontario
January 22, 2008
Cross-examination of Ed Bradley, Brian Gilkinson, Terri Regimbal, Crown counsel, by Suzan Fraser, counsel for Defence for Children International-Canada.
The following is an excerpt from the transcript of the Inquiry into Pediatric Forensic Pathology in Ontario. For the official transcript, or for more information about the Inquiry, visit the Inquiry web site: http://www.goudgeinquiry.ca.
[Page 1]
1
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 January 22nd, 2008
25
. . . . .
[Page 188]
6 CROSS-EXAMINATION BY MS. SUZAN FRASER:
17 MS. SUZAN FRASER: Thank you, Mr.
18 Commissioner. Ms. Regimbal and Mr. Bradley, Mr.
19 Gilkinson, my name is Sue Fraser and I am here on behalf
20 of an organization called Defence for Children
21 International, which is an international grass roots
22 organization for the promotion of children's rights,
23 which was founded in Geneva in 1979, and there's a
24 Canadian chapter, which is -- has standing at this
25 Inquiry.
[Page 189]
1 Mr. Gilkinson, just -- you mentioned in
2 reference to Crown policy, you said it's on my laptop,
3 it's on everybody's laptop, and I took it that you're
4 referring to sort of a government issued laptop that
5 comes equipped with the Crown policy.
6 Am I --
7 MR. BRIAN GILKINSON: No, it's the fact
8 that you can -- so you found -- you've discovered my lack
9 of technological expertise, but if you go on to my laptop
10 or any laptop --
11 MS. SUZAN FRASER: Yeah.
12 MR. BRIAN GILKINSON: -- you can access
13 the CLD Net we -- website and you can read anything you
14 want with respect to Crown policy.
15 MS. SUZAN FRASER: All right.
16 COMMISSIONER STEPHEN GOUDGE: It's not
17 your screen saver, I take it?
18 MR. BRIAN GILKINSON: No, it's -- no,
19 it's not, I'm sorry.
20 MS. SUZAN FRASER: Okay.
21 MR. BRIAN GILKINSON: And I don't read it
22 before I go to bed at night.
23
24 CONTINUED BY MS. SUZAN FRASER:
25 MS. SUZAN FRASER: But certainly it's
[Page 190]
1 part of what you do, it's part of what you practice, and
2 it's important to the work that you do, I take it?
3 MR. BRIAN GILKINSON: Well, it is, it is,
4 and you try and access it as much as possible, in
5 particular, if you're facing a particular issue and
6 you're -- and you know you need some assistance and
7 guidance.
8 MS. SUZAN FRASER: All right.
9 MR. BRIAN GILKINSON: But I'm not it's
10 something that you access necessarily on a daily basis.
11 MS. SUZAN FRASER: All right. I have --
12 I have some questions for you all about the interplay
13 between the criminal justice proceedings and the Child
14 and Family Services Act, and I take it that you all know
15 that there is a piece of legislation called the Child and
16 Family Services Act.
17 MR. BRIAN GILKINSON: Correct.
18 MR. EDWARD BRADLEY: Correct.
19 MS. SUZAN FRASER: All right, you're all
20 nodding your head and you're agreeing, that's good.
21 And I'll start with Mr. Gilkinson. You're
22 aware -- and I wonder if you're aware that there is a
23 policy or principle set out in the Child and Family
24 Services Act that there be early decision making with
25 respect to child protection and child welfare matters.
[Page 191]
1 Is that your -- do you -- do you know
2 that?
3 MR. BRIAN GILKINSON: That's my
4 understanding.
5 MS. SUZAN FRASER: All right. And is
6 that something that you learn through practice or
7 something that you've received education on?
8 MR. BRIAN GILKINSON: I received
9 education, and particularly with respect to Section 72 of
10 the Act in our local Child Abuse Review Team conference.
11 MS. SUZAN FRASER: All right. And is
12 that something -- was there education offered on the
13 Child and Family Services Act at the Crown schools
14 offered in London, Ontario?
15 MR. BRIAN GILKINSON: People from the OCA
16 -- or excuse me, the Ontario Crown Attorneys Association
17 educational wing would be able to tell you whether or not
18 there is at this particular moment, but I believe there
19 is a course with respect to child abuse issues.
20 MS. SUZAN FRASER: All right. And --
21 and, Mr. Bradley and Ms. Regimbal, have you taken that
22 course or participated in a course involving the Child
23 and Family Services Act?
24 MR. EDWARD BRADLEY: I've been around
25 long enough that I've taken most of the courses a couple
[Page 192]
1 of times. The one (1) course that I think it's involved
2 as part of the course, there's a sexual assault course --
3 MS. SUZAN FRASER: Yeah.
4 MR. EDWARD BRADLEY: -- and that's part
5 of the -- the sexual assault course, at least that's my
6 recollection. The other thing we have in my jurisdiction
7 is we signed a protocol with Family and Children's
8 Services, as they're called in Lennox and Addington, the
9 police, probation, and victim witness, and I'm probably
10 missing somebody, but there's a written protocol that we
11 signed where we would agree that within certain limits we
12 would exchange information when it comes to child
13 protection issues.
14 MS. SUZAN FRASER: All right. All right.
15 And that's something that was of the -- of your office's
16 own initiative, I take it, or the -- the interested
17 parties or stakeholders within --
18 MR. EDWARD BRADLEY: Well, it was a joint
19 initiative of -- of Family and Children's Services, my
20 office, the police, yes.
21 MS. SUZAN FRASER: All right. And of
22 course, you may be aware -- and I think the Commissioner
23 will hear this through its policy roundtables -- that
24 there is an object of early decision-making and
25 permanency planning and that there's actually statutory
[Page 193]
1 time limits for when there should be a permanent
2 placement of a child who is the subject of a child
3 welfare proceeding.
4 Are you aware of those statutory time
5 limits and just --
6 MR. BRIAN GILKINSON: I am not, no.
7 MS. SUZAN FRASER: You're not. All
8 right. So you would not know, Mr. Gilkinson, that there
9 is a mandated permanent placement for somebody who's
10 under the age of six (6) years to happen within twelve
11 (12) months, and when they're over six (6) years that
12 there would be -- the statute would mandate that there
13 would be a placement within two (2) years?
14 MR. BRIAN GILKINSON: I didn't -- I
15 wasn't aware of the time limits.
16 MS. SUZAN FRASER: All right. And --
17 MR. EDWARD BRADLEY: Once again, just in
18 my area, and I don't want to --
19 MS. SUZAN FRASER: Yeah.
20 MR. EDWARD BRADLEY: -- cut your time too
21 much, but --
22 MS. SUZAN FRASER: That's all right.
23 MR. EDWARD BRADLEY: -- I wasn't aware of
24 the time limits either. But if we have a crime of
25 violence, even if it's a domestic violence situation
[Page 194]
1 where children are involved, it's a requirement that the
2 police officers in my jurisdiction note at the bottom of
3 the occurrence report or the synopsis whether or not
4 Children's Aid have been contacted, because they're
5 obligated to.
6 If they haven't, then I personally or
7 somebody from my office directly contacts the intake
8 worker at Family/Children Services and we usually
9 coordinate things through them.
10 MS. SUZAN FRASER: All right. And so if
11 you're now aware -- or if you accept as a premise, which
12 I hope to later be made part of these proceedings, that
13 there are these statutorial time limits, and you
14 juxtapose them with the way that the case is unfolded in
15 both the Jenna case and in the Sharon case, where Ms.
16 Reynolds had surviving children, that those certainly
17 would be, in Jenna's case -- starting with Jenna's case,
18 coming very close to those time lines, of the two (2)
19 year rule for Justine, by the time that the charge was --
20 was finally disposed of.
21
22 MR. BRIAN GILKINSON: That's correct.
23 MS. SUZAN FRASER: All right. And
24 certainly, Mr. Bradley, your case took much longer to
25 come to a conclusion but certainly there would -- the
[Page 195]
1 resolution of the criminal proceeding would have taken
2 place well outside of that two (2) year outside
3 timeframe?
4 MR. EDWARD BRADLEY: Obviously, it did.
5 In fact, we were into almost three and a half (3 1/2)
6 years from the date of the death of -- of Sharon.
7 But Children's Aid in Frontenac was aware
8 from the early stages of the case and of course charges
9 were -- were initially laid within about three (3) to
10 four (4) weeks, I believe. It was within approximately a
11 month. It was I believe in July.
12 So that while the two (2) year timeframe -
13 - I'm not sure that we can adjust criminal cases in
14 fairness to -- to correspond to timelines because of the
15 Child and Family Services Act, but certainly at the early
16 stages there is communication in -- in these types of
17 situations with Children's Aid.
18 MS. SUZAN FRASER: You'll agree with me,
19 I take it, that there's both two (2) potential negative
20 outcomes for the surviving children if the two (2)
21 proceedings don't -- if there's not good exchange of
22 information.
23 The first possible negative outcome is
24 that in the case where the children really are in need of
25 protection and the parents are guilty of the offence,
[Page 196]
1 that they're not provided with protection at the earliest
2 opportunity.
3 That's one (1) potential negative outcome,
4 would you agree with that?
5 MR. EDWARD BRADLEY: I don't see a
6 problem with that.
7 MS. SUZAN FRASER: All right. And on the
8 other side, that a child could be placed, faced with that
9 two (2) year rule, before and adopted away from the
10 family, which has happened in at least one (1) case here,
11 before the resolution of the criminal charges.
12 MR. EDWARD BRADLEY: Or in the case of --
13 of Sharon, there were other -- other children involved
14 and of course the case wasn't resolved within the -- I
15 don't think formal adoptions had -- had necessarily
16 occurred as a result of the criminal charges but
17 ultimately the charges were withdrawn.
18 But once again, while -- while I think we
19 want to expedite criminal cases as much as possible, I'm
20 not sure that we can do it necessarily; move a homicide
21 along and get it completed within two (2) years of the
22 date of the death.
23 For example, in my case, there was a
24 lawyer, then another lawyer replaced that original
25 lawyer, and then a junior then got replaced by another
[Page 197]
1 lawyer, so there were at least four (4) lawyers, three
2 (3) of which were -- were new to the case.
3 MS. SUZAN FRASER: All right. I want to
4 put some more specific to -- suggestions to you to see if
5 you think that they would be helpful.
6 Do you, Mr. Bradley, given the protocol
7 that you have out of this joint initiative, do you see
8 there being value for that to be extended throughout the
9 Province, where there's established protocol for what to
10 do, for the exchange of information when there are child
11 of -- who may be in need of protection in an ongoing
12 criminal prosecution?
13 Would that be useful to see province-wide,
14 in your view?
15 MR. EDWARD BRADLEY: Certainly the
16 protocol that I have in my jurisdiction I think would be
17 beneficial to most jurisdictions, yes.
18 MS. SUZAN FRASER: All right. And, Mr.
19 Gilkinson, can you see it being beneficial to Crowns to
20 have the kind of information both about what might be
21 going on in a concurrent and related proceeding and also
22 how your office should be expected to interact with the
23 people on -- in that concurrent proceeding?
24 MR. BRIAN GILKINSON: No, I'm content
25 with sharing relevant information with Child Protection
[Page 198]
1 agencies and the Children's Aid Society in particular.
2 As I said, there needs to be a balance in terms of what
3 information the Children's Aid Society needs for their
4 purposes, with respect to children who may be in need of
5 protection.
6 And indeed I take it that Children's Aid
7 Society can keep the Crown's office informed of -- of
8 what timelines are approaching, what issues are actually
9 existing in child welfare court.
10 To the extent that that information is --
11 is relevant to the conduct of the criminal prosecution,
12 I'm happy to have it. I just share the -- the same
13 concern that it probably isn't going to be able to drive
14 the rate at which the criminal matter can be resolved.
15 And I -- I think if it's a situation where
16 child welfare court wants to access an accurate review of
17 the state of the criminal case, a protocol or -- is going
18 to have to be developed for basically informing that
19 court, not just the agency, I guess, of -- of where the
20 criminal case is at, and what the timeframe is likely to
21 be, before there's going to be a determination of those
22 issues.
23 And then if there needs to be a change in
24 the approach to the time limitations that you're talking
25 about in individual cases, then perhaps that can be
[Page 199]
1 accommodated on the child welfare side of things.
2 MS. SUZAN FRASER: All right. So it
3 might be the case that the statutory time limits might
4 have to be revisited in light of the fact that we can't
5 advance criminal prosecutions --
6 MR. BRIAN GILKINSON: Well, you're not
7 speaking to an expert with respect to --
8 MS. SUZAN FRASER: All right.
9 MR. BRIAN GILKINSON: I don't know the
10 consider --
11 MS. SUZAN FRASER: But I -- I think
12 that's what you're proposing, is that you're saying that
13 you know, if this is the statutory timeline I can't do
14 anything --
15 MR. BRIAN GILKINSON: I'm not proposing
16 anything.
17 MS. SUZAN FRASER: Okay.
18 MR. BRIAN GILKINSON: I'm just throwing
19 out considerations that need to be taken into account
20 before -- before protocols can be put into place.
21 MS. SUZAN FRASER: All right. So one (1)
22 -- one (1) consideration that I think you're telling me
23 you would all be in favour of would be early disclosure
24 and disclosure of relevant materials to the child
25 protection --
[Page 200]
1 MR. BRIAN GILKINSON: But that -- there's
2 a protocol initially, with respect to child abuse cases,
3 that they're joint investigations by the Children's Aid
4 Society and the police force, insofar as the
5 representative from the Children's Aid Society will sit
6 in on statements that are -- are being taken of -- of
7 complainants in those kinds of cases.
8 And with respect to the change of inf --
9 the exchange of information where Children's Aid wasn't
10 initially involved, I am in favour of ensuring that they
11 have as much information from the criminal case as
12 possible that might impact on the protection concerns.
13 MS. SUZAN FRASER: All right. And just
14 on that vein, is it fair to say that in terms of -- of
15 Jenna's Case, that at no time did you tell the CAS about
16 your meeting with Dr. Ein?
17 MR. BRIAN GILKINSON: I don't recall the
18 meeting with Ms. Sullivan that is noted apparently on
19 either the 27th, 28th or 29th. I can't tell you now. I
20 can tell you there must have been some reason for the one
21 (1) line that's attributed to me and I -- and I've
22 indicated already there had to be a lot more to that
23 conversation than what was noted. I'm sorry --
24 MS. SUZAN FRASER: All right.
25 MR. BRIAN GILKINSON: -- I can't assist
[Page 201]
1 you.
2 MS. SUZAN FRASER: All right. But there
3 -- there's -- you have no record that you actually
4 provided --
5 MR. BRIAN GILKINSON: I -- I have no
6 record or notation of that -- of that contact.
7 MS. SUZAN FRASER: And -- and is it fair
8 to say that you knew that Ms. Waudby was going to have a
9 baby in early May of 1999?
10 MR. BRIAN GILKINSON: I knew that she was
11 pregnant at one point in time.
12 MS. SUZAN FRASER: Yeah.
13 MR. BRIAN GILKINSON: I did not realize
14 that she actually had the baby in -- you said early May?
15 MR. MARK SANDLER: May 1st.
16
17 CONTINUED BY MS. SUZAN FRASER:
18 MS. SUZAN FRASER: Yeah, I believe it was
19 May the 1st.
20 MR. BRIAN GILKINSON: Yeah, I'm not aware
21 of whether or not I knew that she'd actually delivered.
22 MS. SUZAN FRASER: All right. And in
23 terms of --
24 COMMISSIONER STEPHEN GOUDGE: You are
25 running out of time, Ms. Fraser.
[Page 202]
1
2 CONTINUED BY MS. SUZAN FRASER:
3 MS. SUZAN FRASER: All right. And in
4 terms of the information that you had -- if you had known
5 when you met with the CAS worker that Ms. -- Ms. Waudby
6 was about to have a baby, and you were at that stage
7 coming to the conclusion or at least considering that
8 your case against her might be untenable, that would
9 certainly be relevant information that -- that ought to
10 be provided to the CAS?
11 MR. BRIAN GILKINSON: Well, I understand
12 the record from May the 7th, Mr. Hauraney supplied that
13 information to Mr. Meneley, and it apparently formed part
14 of the record considered by Justice Johnston. I don't
15 know --
16 MS. SUZAN FRASER: I'm interested in the
17 information that you provided, sir.
18 MR. BRIAN GILKINSON: And I don't know
19 whether or not I told the person by the name of Sullivan
20 that or not.
21 MS. SUZAN FRASER: All right.
22 MR. BRIAN GILKINSON: But I certainly had
23 some reason for -- for talking with her, if she's got a
24 note indicating we did talk about Ms. Waudby and the
25 situation.
[Page 203]
1 MS. SUZAN FRASER: All right. And
2 certainly, coming --
3 COMMISSIONER STEPHEN GOUDGE: You are
4 going to have to wind up, Ms. Fraser.
5
6 CONTINUED BY MS. SUZAN FRASER:
7 MS. SUZAN FRASER: This is my last
8 question -- coming the other way, it certainly would
9 have been incumbent upon the -- Ms. Sullivan to tell you
10 that Ms. Waudby was about to give birth and that this is
11 actually a very critical stage, and they were considering
12 apprehension?
13 MR. BRIAN GILKINSON: I don't know what
14 directives -- direct -- drive her sharing of information
15 with me. I don't know whether she told me that or not. I
16 think that note indicated the charge would not be
17 withdrawn on Thursday.
18 MS. SUZAN FRASER: Right.
19 MR. BRIAN GILKINSON: Clearly, there must
20 have been an indication from me that at some point in
21 time that charge is likely to be withdrawn.
22 MS. SUZAN FRASER: I see. Thank you.
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