Inquiry into Pediatric Forensic Pathology in Ontario
November 28, 2007



Cross-examination of Dr. James Cairns, Deputy Chief Coroner of Ontario and Chairperson of the Pediatric Death Review Committee, 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 November 28th 2007
25

                            . . . . .

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22 CROSS-EXAMINATION BY MS. SUZAN FRASER:
23 MS. SUZAN FRASER: Thank you, Mr.
24 Commissioner. Thank you for the second part of that as
25 well. Dr. Cairns, my name is Sue Fraser, and I'm here

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1 today on behalf of DCI, which is called Defence for
2 Children International Canada.
3 Which is an international grassroots
4 organization founded in 1979 and based in Geneva. And
5 its mission is to promote and protect the rights of the
6 child. And I have some questions about the Paediatric
7 Death Review Committee on behalf of my client today.
8 And we've heard from you that that
9 Committee was created in 1989?
10 DR. JAMES CAIRNS: That's correct.
11 MS. SUZAN FRASER: All right. And you
12 stated yesterday that you made a decision, as a result of
13 the Child Mortality Task Force, to add cases where there
14 was an open CAS file.
15 Is that fair?
16 DR. JAMES CAIRNS: That's correct.
17 MS. SUZAN FRASER: All right. And I
18 think your evidence on that point was that you made that
19 decision arbitrarily? That was your decision to do that?
20 DR. JAMES CAIRNS: I monitored the
21 temperature of the room and thought it was the
22 appropriate answer.
23 MS. SUZAN FRASER: All right. And
24 yesterday you stated that the Child Mortality Task Force
25 was released in 1996. And I had understood from the

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1 documents that we have received, that was in March of
2 1997?
3 DR. JAMES CAIRNS: I will stand to be
4 corrected.
5 MS. SUZAN FRASER: All right. And just -
6 - I won't turn you to it, Commissioner, but there is a
7 PFP number 039972 where you'll find that reference. And
8 the final report -- there was an interim report, you'll
9 recall, and a final report?
10 I'm correct on that?
11 DR. JAMES CAIRNS: That's correct.
12 MS. SUZAN FRASER: And the final report
13 came out in June of 1997?
14 DR. JAMES CAIRNS: Correct.
15 MS. SUZAN FRASER: All right. And that -
16 - that period of time -- sorry, the interim report
17 actually reported that you had agreed in September of
18 1996 to have the Paediatric Death Review Committee review
19 cases where there had been an open Children's Aid Society
20 file, so that actually was incorporated into the Child
21 Mortality Task Force. Do you recall that?
22 DR. JAMES CAIRNS: Yes.
23 MS. SUZAN FRASER: All right. Now the
24 Child Mortality Task Force told us that there would be a
25 number of inquests coming up in the spring of 1997; it

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1 actually referenced to a number of upcoming inquests?
2 DR. JAMES CAIRNS: I think it made
3 reference to approximately six (6) inquests, which we
4 felt, with them all, would deal with syst -- whatever
5 systemic issues were giving concern about why children
6 were dying while they were being monitored by a
7 Children's Aid Society.
8 MS. SUZAN FRASER: All right. And the
9 report also indicated...
10
11 (BRIEF PAUSE)
12
13 COMMISSIONER STEPHEN GOUDGE: Okay, Ms.
14 Fraser.
15
16 CONTINUED BY MS. SUZAN FRASER:
17 MS. SUZAN FRASER: In any event, that
18 report told us that in the course of a year one hundred
19 (100) children died in the care of the CAS.
20 Do you recall that?
21 DR. JAMES CAIRNS: I do.
22 MS. SUZAN FRASER: And you'll recall that
23 it also told us that twelve (12) children in the care of
24 the CAS died as a result of homicide?
25 DR. JAMES CAIRNS: That's correct.

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1 MS. SUZAN FRASER: And that statistic
2 attracted considerable attention and the following the --
3 and I -- I expect that you'll recall the series of events
4 -- that following your interim report, the Toronto Star
5 ran an article or an editorial calling for mandatory
6 inquest where a child dies while in the care of the
7 Children's Aid Society.
8 Do you recall that?
9 DR. JAMES CAIRNS: I do.
10 MS. SUZAN FRASER: All right. So in
11 March of 1997, there was considerable pressure around
12 children who were in the care of the CAS and the need for
13 those deaths to be reviewed?
14 DR. JAMES CAIRNS: Correct.
15 MS. SUZAN FRASER: All right. And so it
16 was your reaction to that, although it had been announced
17 earlier, so I'm trying to figure out whether this was
18 part of the response knowing that, or whether this came
19 after the release of the Child Mortality Task Force?
20 'Cause I'd sort of understood your
21 evidence that the report was released, there was a
22 reaction to it, and you made this decision rather
23 arbitrarily to add these cases to the Pediatric Death
24 Review Committee.
25 But having looked at the -- the Child

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1 Mortality Task Force, it appears to be a sort of
2 consideration of part of that report?
3 DR. JAMES CAIRNS: I think in the Joint
4 Mortality Task Force it was recommendation -- and correct
5 if I'm wrong -- and as this progressed, I decided there
6 wasn't going to be recommendation, it was going to be, in
7 fact, implemented.
8 MS. SUZAN FRASER: All right. And you'll
9 agree with me that at that time there were no more than a
10 hundred (100) inquests a year for the Province of the On
11 -- of Ontario, is that fair -- a fair...?
12 DR. JAMES CAIRNS: Yes, the average is
13 about ninety (90) per year, yes.
14 MS. SUZAN FRASER: All right. And had
15 you had to call inquest into a child's death where they
16 were in the care of the CAS, that would effectively
17 double the number of inquests that you would have had to
18 hold?
19 DR. JAMES CAIRNS: If we had to call an
20 inquest into every single one of them, on a mandatory
21 basis, yes, it would.
22 MS. SUZAN FRASER: All right. And the --
23 in your view, the Pediatric Death Review Committee
24 reviewing these deaths would provide the public the
25 scrutiny that the deaths deserved.

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1 Is that fair?
2 DR. JAMES CAIRNS: It would divi -- it
3 would help the scrutiny, and it would also help to focus
4 in on some of those deaths that, despite that review,
5 would definitely still require an inquest.
6 MS. SUZAN FRASER: All right. And you've
7 indicated to the Commissioner that the Pediatric Death
8 Review Committee has a number of child welfare experts on
9 it. And I just -- I'd ask that the Registrar turn up
10 PFP057188, which is the Pediatric Death Review Committee.
11 And if we could have page 29, please? And
12 I don't know if we can have it enlarged a little, but
13 just looking at the constitution of that committee, Dr.
14 Cairns, I see Susan Abell -- or Ab -- Abell.
15 DR. JAMES CAIRNS: Susan Abell.
16 MS. SUZAN FRASER: Able. She is listed
17 as a child welfare consultant?
18 DR. JAMES CAIRNS: Correct.
19 MS. SUZAN FRASER: All right. But for
20 much of the period of time that she sat on the committee,
21 she was director of the Ottawa Children's Aid Society.
22 Is that fair?
23 DR. JAMES CAIRNS: That's not correct.
24 As soon as she became the Director of the Children's Aid
25 Society in Ottawa, she resigned from the committee. So,

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1 at no time, when she was on the committee was she
2 actively in a Children's Aid Society.
3 MS. SUZAN FRASER: I'm -- I'm wondering
4 then -- perhaps if the Registrar can call up PFP135232.
5 I'm sorry -- 135232. So I'm just looking -- this is a
6 letter from Ms. Able to you in -- in August of 2000.
7 Was she not on the Pediatric Death Review
8 Committee at that time?
9 DR. JAMES CAIRNS: No, she wasn't. She
10 was -- sorry, she was the Director of the Ottawa
11 Children's Aid Society.
12 MS. SUZAN FRASER: Yes.
13 DR. JAMES CAIRNS: There had been a death
14 of a child who was being supervised by that society. The
15 committee had reviewed that death and when we review the
16 death we send a copy of the report of that committee to
17 the Director of the Society involved, to the Assistant
18 Deputy Minister --
19 MS. SUZAN FRASER: Yes.
20 DR. JAMES CAIRNS: -- and to the Regional
21 Supervising Coroner. So this is her as a director of
22 that unit responding to the recommendations that we had
23 forwarded to her.
24 MS. SUZAN FRASER: All right. But you'll
25 agree with me that her experience and her expertise comes


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1 from within a Children's Aid Society?
2 DR. JAMES CAIRNS: Her training in her
3 work resulted in her being active in the field of child
4 welfare in Children's Aid, correct.
5 MS. SUZAN FRASER: All right, so the
6 answer is "yes."
7 DR. JAMES CAIRNS: Yes to what?
8 MS. SUZAN FRASER: Whether her experience
9 comes from being a part of the children -- her experience
10 is directly related to Children's Aid Society.
11 DR. JAMES CAIRNS: To her knowledge from
12 working with Children's Aid, correct.
13 MS. SUZAN FRASER: All right. And she's
14 now retired.
15 DR. JAMES CAIRNS: She's retired from the
16 Ottawa Children's Aid Society.
17 MS. SUZAN FRASER: All right.
18 DR. JAMES CAIRNS: And when she retired
19 from the Child or Children's Aid Society, she rejoined
20 the committee --
21 MS. SUZAN FRASER: I see.
22 DR. JAMES CAIRNS: -- as a consultant.
23 MS. SUZAN FRASER: And Sandy Moshenko --
24 just going back to the constitution of the committee,
25 which is at PFP057188, page 29, please. Sandy Moshenko,

[Page 245]

1 much of her experience -- she's with the Ontario
2 Association of Children's Aid Societies.
3 DR. JAMES CAIRNS: When she joined our
4 committee, she was with the Ontario Association of
5 Children's Aid Societies.
6 MS. SUZAN FRASER: All right, and that's
7 a body that represents Children's Aid Societies?
8 DR. JAMES CAIRNS: It is.
9 MS. SUZAN FRASER: All right, and then
10 she went to the Waterloo Children's Aid Society, as I
11 understand it?
12 DR. JAMES CAIRNS: That's correct.
13 MS. SUZAN FRASER: All right, and she is
14 now retired.
15 DR. JAMES CAIRNS: She's retired and she
16 -- she's now back on the committee.
17 MS. SUZAN FRASER: All right. And
18 Jeanette Lewis is the Executive Director of the Ontario
19 Children's Aid Society, as it states here.
20 DR. JAMES CAIRNS: That's correct.
21 MS. SUZAN FRASER: All right, and Zel
22 Fellegi is someone who's involved in Children's Mental
23 Health.
24 DR. JAMES CAIRNS: That's correct.
25 MS. SUZAN FRASER: And wouldn't you be

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1 concerned, Dr. Cairns, that based on the experience of
2 those people that it looks that you have representative
3 of Children's Aid Societies investigating Children's Aid
4 Societies?
5 DR. JAMES CAIRNS: I'm no more concerned
6 about that than I am that we have six (6) or seven (7)
7 doctors on the committee investigating doctors.
8 There is a -- I don't know of a better way
9 to investigate what goes on in a hospital among doctors,
10 than to have fellow doctors investigate them; providing
11 the people who are doing it are ethical and providing if
12 the investigation into the chil -- the child's death, for
13 the sake of discussion, happened in the Guelph Hospital,
14 that the medical member of the committee from Guelph do
15 not attend that meeting and have no influence in it.
16 One can certainly get away from that, and
17 if we want to investigate medical deaths in hospital with
18 no doctors, I think every doctor who's under concern
19 would be delighted, because they'll pull the wool over
20 everybody's eyes.
21 MS. SUZAN FRASER: All right. So, you do
22 -- you don't agree with me on that point.
23 DR. JAMES CAIRNS: I don't.
24 MS. SUZAN FRASER: But you would have
25 other options; the Child Advocate for the Province of

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1 Ontario, she wasn't asked to be part of the Paediatric
2 Death Review Committee.
3 DR. JAMES CAIRNS: Advocate is a word --
4 MS. SUZAN FRASER: Yes.
5 DR. JAMES CAIRNS: -- and obviously it's
6 an advocate. This is meant to be neutral, basing things
7 on what is found in each case.
8 MS. SUZAN FRASER: You understand that
9 the Office of Child and Family Service Advocacy had
10 direct knowledge of the conditions in which children
11 lived in, in the care of the State; that would have been
12 part of their mandate?
13 DR. JAMES CAIRNS: And if we required
14 that knowledge, we would ask for it.
15 MS. SUZAN FRASER: And did you ever seek
16 it out?
17 DR. JAMES CAIRNS: On a number of
18 occasions --
19 MS. SUZAN FRASER: Yes.
20 DR. JAMES CAIRNS: -- they were granted
21 standing at inquests.
22 MS. SUZAN FRASER: But the Paediatric
23 Death Review Committee never invited the advocate to come
24 or did invite the advocate to come?
25 DR. JAMES CAIRNS: The Paediatric Review

[Page 248]

1 Committee discussed and they did not feel that there --
2 that they -- since they were an advocate; that was, by
3 definition, not a neutral party and it was appropriate
4 for an advocate to join the committee.
5 MS. SUZAN FRASER: Isn't it fair to say
6 that a Crown attorney also comes at it this -- the
7 committee from a particular perspective; their
8 perspective of being someone who prosecutes?
9 DR. JAMES CAIRNS: The Crown attorney who
10 was there was one (1) of the Crowns who were attached to
11 your office and were there to give us legal advice; not
12 with regard -- but what -- what would be the legal
13 interpretation of this or that. They were not there
14 advocating in terms of criminal prosecutions.
15 MS. SUZAN FRASER: All right. And you
16 don't think -- I'm just looking at the constitution of
17 the non-medical people; you have police officers, you
18 have Children's Aid Society, people with Children's Aid
19 Society affiliations, and you have a Crown attorney.
20 Would you not be conclude that -- be
21 concerned that even those these people may be multi --
22 multi-disciplinary, that they may be too like-minded?
23 DR. JAMES CAIRNS: I think the fact that
24 we have physicians, child welfare experts, police
25 officers, and legal is, in fact, ensuring that we've got

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1 a multi-discipline committee.
2 And I can assure you that the people, if
3 they come up with one (1) comment, that they will be
4 fairly attacked by the people in the other disciplines to
5 ensure that that is not the situation.
6 MS. SUZAN FRASER: So you don't feel that
7 the Children's Aid Society is insulated review -- from
8 review by this Committee?
9 DR. JAMES CAIRNS: I think the results
10 speak for themselves.
11 MS. SUZAN FRASER: All right. But, of
12 course, in terms of the results, all that we have
13 publically from the committee is a report in 2004 and the
14 report in 2007?
15 DR. JAMES CAIRNS: And that is, and I've
16 already mentioned, that that was a resourcing problem
17 that we were, in fact, giving to the Ministry as report
18 on every single death. They were meant to -- to tabulate
19 it and to bring out themes, et cetera.
20 They recognized they couldn't do it. We
21 offered to do it as a independent of the Children's
22 Ministry, but we said we can't do it without funding.
23 They did give us funding of one hundred thousand dollars
24 ($100,000) which allowed us to hire someone that would
25 help with that. And it allowed us to put out the first

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1 comprehensive report that had ever been put out in the --
2 wasn't it last year -- no, this year.
3 MS. SUZAN FRASER: Right.
4 DR. JAMES CAIRNS: And that report was
5 done by our office. The Children's Ministry said that
6 they were always muzzled by protection of information.
7 And the Children's Aid Society say they were muzzled by
8 privacy rights.
9 We indicated that if we took all the
10 deaths, we should be able to pull out the systemic issues
11 without identifying the individual death and, therefore,
12 reserve the privacy rights.
13 Before that report came out, I have --
14 and, in fact, when I gave that report in -- in June, most
15 of the Children's Aid people, the Ministry, and the
16 public, were surprised that there were eighty-five (85)
17 deaths a year with Children's Aid.
18 And when you say that as a number, it
19 sounds horrible. But this Committee was able to break
20 them down into the number that were medically fragile
21 children where it was nothing to do with them; the number
22 of accidental deaths that were nothing to do with the
23 monitoring.
24 I was able to put a proper perspective on
25 focussing on those cases where we felt that the actual


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1 actions or inactions of the Children's Aid Society played
2 a role in the death.
3 MS. SUZAN FRASER: I think -- I think the
4 report stands for itself, Dr. Cairns. But I think you
5 can agree with me on this point; that there is not an
6 annual review of the number of children who die in the
7 care of the State.
8 Is that fair?
9 DR. JAMES CAIRNS: That's exactly what
10 we're doing.
11 MS. SUZAN FRASER: All right. You're not
12 investigating -- the Committee, as it stands now, does
13 not have a mandate to investigate the death of children
14 in residential mental health facilities, does it not? It
15 does not have that mandate as you've stated it?
16 DR. JAMES CAIRNS: Unless it under the
17 mandate, no, it doesn't.
18 MS. SUZAN FRASER: All right. And it
19 doesn't have a mandate to review children who die in open
20 custody?
21 DR. JAMES CAIRNS: Define "open custody"
22 for me?
23 MS. SUZAN FRASER: It's a -- well, if
24 you're a young -- a young person who's deta -- who's
25 ordered into custody under the Youth Criminal Justice

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1 Act, you either are in secure custody or in open custody,
2 which is a group home-like setting.
3 DR. JAMES CAIRNS: It does not.
4 MS. SUZAN FRASER: All right. Now -- and
5 I think that you can agree with me that it would be
6 better for there to be a review that is transparent, and
7 -- so that people can understand, case by case, how
8 children come to their end?
9 DR. JAMES CAIRNS: And on an individual
10 basis, one will be conflicting with privacy rights. It
11 is felt that what we do is, we -- we individually review
12 those, they are forwarded back to the appropriate
13 authorities for the attention of that particular
14 authority.
15 And, if we find that this is a recurring
16 theme, then, by putting out our report, we're able to
17 give the salient concerns of that to others. And it is
18 very similar to what doctors do when they read the
19 College of Physicians and Surgeons stuff. Let me learn
20 from somebody el -- else's mistake rather than our own.
21 And prior to this report coming out, if we
22 sent a report to a Children's Aid Society indicating, We
23 don't think you did proper monitoring of the home
24 conditions in -- including the type of crib that was
25 being used, that society might improve its actions in

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1 that.
2 But that vital information was not being
3 shared anywhere else because of privacy. And in this
4 way, we are publicly able to give it out to everyone.
5 MS. SUZAN FRASER: That's right, but that
6 -- but in fairness, the public had to wait. The public
7 had to wait for fifteen (15) years for this information
8 to be shared; till 2004, correct?
9 DR. JAMES CAIRNS: If you want to talk to
10 the people who supply the money -- I've been after this
11 for years.
12 MS. SUZAN FRASER: Okay. So you'd agree
13 with me that we shouldn't have to wait fifteen (15) years
14 for this information, correct?
15 DR. JAMES CAIRNS: Correct.
16 MS. SUZAN FRASER: And it would be
17 helpful rather than the particulars of a -- of the
18 private particulars of a case to be reviewed -- for, at
19 very least, the recommendations made by Pediatric Death
20 Review Committee to be made publicly and in a timely
21 fashion?
22 DR. JAMES CAIRNS: And that's exactly
23 what we are now attempting to do. We're just scraping
24 by, but all the recommendations that go to the individual
25 societies, we go through them, and when we see a

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1 recurring theme, then we put those in. Those are the
2 systemic recommendations.
3 We do the same for the medical ones, as
4 well, and we can go that more detailed if we're provided
5 extra funding. I can tell you that, as I sit here,
6 although it will not be my responsibility since I'm
7 retiring in January, but, presently, our funding from the
8 Children's Ministry is up as of the 31st of March.
9 If that is not renewed, there won't be any
10 reporting.
11 MS. SUZAN FRASER: All right. But you'll
12 agree with me that the fact that these reports be made in
13 a timely fashion and publicly is critical in terms of
14 protecting the young people who are in the care of the
15 State?
16 DR. JAMES CAIRNS: Absolutely.
17 MS. SUZAN FRASER: All right. And you'll
18 agree with me also --
19 COMMISSIONER STEPHEN GOUDGE: You are
20 into injury time, Ms. Fraser.
21 MS. SUZAN FRASER: I actually -- injury
22 time, I understand the rugby metaphor. But I -- I will
23 finish up in -- in forty (40) seconds, if I may, Mr. --
24 Mr. Commissioner?
25

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1 CONTINUED BY MS. SUZAN FRASER:
2 MS. SUZAN FRASER: You will agree with me
3 that it is important, in order for us to prevent future
4 deaths, for us to understand and for all agencies to
5 understand how children die?
6 DR. JAMES CAIRNS: That's the precise
7 purpose for what -- for why this committee is doing it.
8 We can't prevent the death, but perhaps we can learn
9 lessons from the death and prevent them in the future.
10 And, certainly, the big drive we have on now is the
11 number of children who are dying in unsafe sleeping
12 environments.
13 And we have been pushing that with
14 Children's Aid now, and public, so our mandate is exactly
15 the same mandate as you're suggesting.
16 MS. SUZAN FRASER: Except it happens in a
17 different form that I'd like it to happen.
18 DR. JAMES CAIRNS: Well, you --
19 MS. SUZAN FRASER: And you and I will
20 disagree on that point.
21 DR. JAMES CAIRNS: Yes.
22 MS. SUZAN FRASER: Thank you, Mr.
23 Commissioner.