GIST: The parents of a baby whose death investigation sparked an accusation that Ontario’s chief forensic pathologist is biased toward favouring abuse as the cause of death want light shed on their case.
But, the oversight body created to restore public confidence in the province’s death investigation system — and guard against this kind of alleged tunnel vision — is fighting to seal vast swaths of documents related to the accusation against Dr. Michael Pollanen.
The battle over transparency is playing out in Divisional Court, where Dr. Jane Turner, former director of the Hamilton Regional Forensic Pathology Unit, is seeking a judicial review of the way the Death Investigation Oversight Council (DIOC) handled her complaint against Pollanen.
Turner, who resigned in 2018, has alleged the oversight body “shielded” Ontario’s top pathologist “from accountability.”
Dr. Turner alleges in her complaint that Dr. Pollanen attempted to interfere in her finding that the infant, identified as “AB,” died in 2017 of natural causes — an opinion supported by the bone pathologist who reviewed the case.
The parents of AB are still involved in child protection proceedings almost four years later, stemming from the apprehension of their surviving children following AB’s death.
“They have gone through four years of hell — everything from police investigations, children’s aid society involvement, hiring lawyers and having this doubt cast upon them for all that time,” their lawyer, James Mountford, told the Star.
Pollanen’s lawyer, Wayne Cunningham, told the Star in an email on Tuesday that Turner “made these same allegations before DIOC and now applies for judicial review because DIOC declined to make the findings she now seeks.”
He said Pollanen “will respond fully and vigorously to Dr. Turner’s efforts to set aside DIOC’s decision, but will not otherwise comment on the case while it remains before the courts.
On Tuesday, a panel of three judges heard a motion from DIOC to seal key documents in the AB case, citing privacy concerns and the confidentiality of the council’s complaints process.
In response to questions from the justices about why DIOC was seeking to seal documents against the wishes of the AB’s family, DIOC’s lawyer said the documents should be sealed in their entirety out of “an abundance of caution.”
The Toronto Star and the Hamilton Spectator opposed that motion, arguing that a broad sealing order would “permanently conceal the bulk of (DIOC’s) record of decision from the public,” including “substantive evidence about the underlying allegations in Dr. Turner’s complaint,” lawyer Emma Carver said in her written submissions. Carver said the privacy of the families involved could be protected by redacting names, birth dates, photos and other identifying information.
In a brief submission at the outset of the hearing on Tuesday, Mountford said AB’s parents “agree with the media’s position.”
“They are grateful to have light shed on this issue,” Mountford told the court, adding that they are asking only for their identifying information to be redacted from the record.
Mountford requested to make his submissions first, and leave immediately after, citing the financial strain on the parents, who, he told the court, “have been put through a great deal of expense” and whose “child protection proceedings continue to this day.”
The judicial review is the first scrutiny of this kind for DIOC, which was established to safeguard the system following the devastating scandal involving disgraced pathologist Charles Smith. Smith’s flawed autopsy analyses — and tunnel vision — tainted more than a dozen criminal cases and led to parents wrongfully convicted of killing their children.
“Accountability and transparency in the context of DIOC complaints is crucial in light of Ontario’s dark history of flawed forensic evidence and unreliable expert testimony, which tainted countless criminal and child-custody decisions,” Carver said in her written submissions, referring to the Smith scandal, and the scandal involving the Hospital for Sick Children’s former Motherisk lab.
The panel of judges, which reserved its decision on Tuesday, is also grappling with whether to redact the identities of the experts who were interviewed by DIOC in its review of Turner’s complaint against Pollanen. DIOC argued against revealing their names, saying that some had expressed fear of reprisal, and noted that they had provided information on the promise of confidentiality.
Lawyer Iris Fischer, who is representing the Canadian Civil Liberties Association, an intervener in the case, countered that argument, saying that granting confidentiality “almost turns DIOC into a body that is granting (confidential informant) status.”
Pollanen’s lawyer also disagreed with DIOC.
“Any allegations of reprisal here is speculative and any allegation could be deterred and adjudicated by DIOC,” Cunningham said."
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