Smith For The Defence: Part Three; Did Judge's Praise of Smith's "Outstanding" Credentials Tip Jury In Favour Of Smith's Evidence?

"DR. SMITH HAS OUTSTANDING CREDENTIALS, AND IT IS HIS OPINION THAT TRISTAN'S INJURIES COULD HAVE POSSIBLY BEEN INFLICTED AS EARLY AS 6:00 P.M. ON SATURDAY THE FIFTH OF JANUARY."

FROM SUPERIOR COURT JUSTICE DAVID CRANE'S CHARGE TO THE JURY: REGINA VS. KUZYK;

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Expert evidence lay at the heart of the prosecution of Shelly Anne Kuzyk for the second-degree murder of her 15-month-old son Tristin;

There was however a clear conflict between the defence and prosecution experts as to the outer limits of the time at which the injuries took place - a central issue in the case.

It is therefore fair to ask whether Dr. Charles Smith's inflated description of his qualifications tipped the jury in favour of the defence.

To this Bloggist it is a given that Dr. Smith's decision to testify for the defence for the first time in his career was a major coup for Kuzyk's lawyer.

As Roger Yachetti told the jury on hearing this from Smith in Court, "I don't know whether to feel honoured or scared."

Indeed, Superior Court Justice David Crane told the jury that part of Kuzyk's defence was that, "That Dr. Smith has outstanding credentials, and it is his opinion that Tristan's injuries could have possibly been inflicted as early as 6:00 p.m. on Saturday the Fifth of January."

But Crane went even further in what, in retrospect, risked appearing to be an endorsement of Dr. Smith, by telling the jury:

"Lastly. in terms of timing of witnesses. Dr. Smith said hem-studied this case for the purposes of providing an opinion.

Dr. Smith has a specialty in Forensic Paediatric Pathology.

He says he investigates sudden and suspicious deaths.

He is the Director of the Sick Children's Hospital.

He performs autopsies of children for the Region of Toronto and elsewhere and there was a discussion of his qualifications, which I expect you will find to
be very extensive..."

These comments are particularly troubling for several reasons.

First and foremost, Justice Crane misstated Smith's qualifications when he described Dr. Smith as "having a specialty in forensic pediatric pathology."

Dr. Charles Smith is not qualified in "forensic pediatric pathology".

His specialty is in "pediatric pathology."

We know from the evidence called at the Goudge Inquiry that pathologists who choose to work in the forensic area - even though they lack formal certification - often refer to themselves as "forensic pathologists."

However Justice Crane went beyond this by using words that suggested Dr. Smith was was a certified specialist in forensic pediatric pathology.

I am not faulting Justice Crane as he did not have the benefit of all we have learned about Dr. Smith and about the world of forensic pathology from the Goudge Inquiry.

Besides, neither prosecutor Kevin McKenna or defence lawyer Yachetti corrected the inadvertent misinformation in the absence of the jury.

Secondly, the judge's apparent endorsement of Dr. Smith's C.V. - which he refers to as "very extensive" - would serve to elevate Dr. Smith's testimony over the evidence given by the battery of experts on the other side.

Lastly, incorrectly referring to Smith as "Director of the Sick children's Hospital" -which, if true, would be a position of considerable stature didn't help.

It's worth noting that the press reflected Dr. Smith's lofty credentials as described in the courtroom, as is evidenced by a Hamilton Spectator report on the trial published on Jan. 29, 1999;

"The defence also called Dr. Charles Smith, a leading specialist
in forensic pediatric pathology," the story said.

"Smith said Tristin died from non-accidental blunt trauma to the head, but disagreed that this happened no more than six hours before the child collapsed.

"There is no absolute science to the timing of injuries,"
Smith maintained.

He said it was possible that Tristin received the lethal head injury 10 or 11 hours before becoming unconscious...."

Dr Charles Smith..."A leading specialist in forensic pediatric pathology."

Here is how the Free Dictionary - an Internet dictionary - defines the word "leading" when used as an adjective:

"LEADING": - greatest in importance or degree or significance or achievement; (as in) "our greatest statesmen"; "the country's leading poet"; "a preeminent archeologist" preeminent superior - of or characteristic of high rank or importance; "a superior ruler."

BLOGGIST'S NOTE: The above analysis is in no way intended to reflect adversely on Shelly Kuzyk's acquittal after she took the witness box and gave her testimony to the jury. It's sole purpose is to shed light on Dr. Smith and the court process as is illustrated by what Dr Smith described as the first case in which he had testified as an expert witness for the defence.

Harold Levy; hlevy15@gmail.com;

Smith For The Defence: Part Two: The Charge To The Jury;

FROM JUSTICE DAVID CRANE'S CHARGE TO THE JURY: REGINA VS. KUZYK;

"THE THEORY OF THE DEFENCE...

THAT DR. SMITH HAS OUTSTANDING CREDENTIALS, AND IT IS HIS OPINION THAT TRISTAN'S INJURIES COULD HAVE POSSIBLY BEEN INFLICTED AS EARLY AS 6:00 P.M. ON SATURDAY THE FIFTH OF JANUARY."

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MY NOTE IS THAT DR. SMITH SAYS IT WAS POSSIBLE FOR TRISTAN TO RECEIVE LETHAL INJURIES AT FIVE OR SIX P.M., 10 OR 11 HOURS BEFORE UNCONSCIOUSNESS. MY COMMENT, MEMBERS OF THE JURY, IS THAT IT IS FOR YOU TO DECIDE WHETHER DR. SMITH WAS SPEAKING OF INFANT-HEAD INJURY CASES AS A GROUP, OR WHETHER HE WAS SPEAKING ONLY ABOUT TRISTAN'S CASE.

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I am providing several portions of Justice David Crane's address to the jury in the Kuzyk case in order to help our readers evaluate Dr. Smith's evidence for the Defence:

Justice Crane's comments on the crown and defence theories;

His comments on the evidence given by Dr. Rao and Dr. Smith, the "forensic" experts for the Crown and Defence respectively:

THE CROWN'S THEORY;

"The Crown's theory, according to myself:

Shelly Kuzyk has fabricated the bed fall.

On her video interview she said Tristan was in good health until the bed fall.

At trial. when she had seen. by Crown evidence, that the bed fall fabrication cannot succeed, she changed her evidence using the usual symptoms of head injury as stated by the doctors at trial to say that Tristan had these symptoms all the way back to 6:00 p.m. on Saturday.

That she also changed her story of Stephen Gandza leaving at 4:30 p.m. on the Saturday on the basis that she remembered seeing the clock at 4:35.

That it is a fact that Tristan's death was due to injuries intentionally inflicted;

That the best medical evidence is that of Dr. Rao, whose specialty is to determine time of the injury and unlike Dr. Smith, she actually examined the injuries microscopically, and investigated the damaged tissues.

Her opinion is that Tristan would show immediate serious symptoms;

That Tristan's injuries had to be of the most severe of cases, as they were indeed fatal;

That he could not.

That is "he" Tristan could not have carried his injuries until he became unconscious without it being obvious to any person seeing him that he was injured.

That the time from injury to serious symptoms depends on the seriousness of the injury.

Tristan was seriously injured.

He had two fractures of the skull and he had demonstrable evidence of injury of his brain.

The proposition that he would carry his injuries until he was unconscious is against all the medical evidence and yet, it is exactly Shelly Kuzyk's evidence in this case.

That Shelly Kuzyk in inflicting the injuries which Tristan suffered would have to have the requisite intent to cause bodily harm. that she knew was likely to cause death and was reckless whether or not it caused death.

That Dr. Smith could only speak of cases generally. where Dr. Rao spoke of Tristan specifically."

THE THEORY OF THE DEFENCE;

"The defence's theory, according to me, is the presumption of innocence.

The accused is to prove nothing.

The Crown has failed to prove guilt. and it has to prove guilt in order to have a conviction.

That the evidence is that Stephen Gandza. at the material time. was in a rage:

that he was a violent person:

that Stephen Gandza would be very frustrated and angry, waiting and waiting for Ms. Kuzyk to finish her shower;

that he could be fired from his job if he was late;

that he is a big. strong man who expresses anger physically;

that at the time Tristan was fussy and out of sorts, and required patience, which M. Gandza had lost.

That it was an easy matter for Mr. Gandza to shake the baby and bang him against a wall or some other activity of that sort;

That Dr. Malcolmson and Dr. Smith spoke of gradually building of symptoms.

That it makes common sense that if a fracture. then a fall by Tristan on his head. that this would make his head injuries worsen and could put Tristan over the (unclear) on his symptoms.

That Dr. Smith has outstanding credentials, and it is his opinion that Tristan's injuries could have possibly been inflicted as early as 6:00 p.m. on Saturday the Fifth of January.

As I indicated ladies and gentlemen. it is not for the defence to prove any of this.

It goes to the submission of the defence of creating a reasonable doubt by which the Crown fails proof.

That the key issue is who caused Tristan's injuries and that timing is important.

That Dr. Smith supports the possibility of up to 24 hours to unconsciousness from Tristan's blunt force trauma.

That Shelly Kuzyk is loving;

that the intent to injure is not there.

That her voice on the 911 call is of genuine concern for Tristan. from his loving godmother;

that there is no motive on the evidence, and this is a circumstance to support the presumption of innocence;

that the evidence of bruising is inconclusive as to intention and as to time."

THE EXPERT EVIDENCE PRESENTED BY DR. RAO AND DR. SMITH;

DR: RAO:

"Dr. Rao testified that she saw fresh haemorrhaging in the brain, eyes and optic nerve.

She stated from the time of injury to the time at hospital was zero to a maximum of four hours.

She allowed a further one or two hours either way.

She stated the photos showed two separate fractures being two separate blunt force injuries.

She stated. and this is simply by my notes ladies and gentlemen. that more than two non-fracture blows were made to the head in different areas.

It is her opinion that there was a combination of blunt trauma force with shaking.

Her evidence was that Tristan received significant injuries, and for such injuries the symptoms are immediate.

The symptoms she stated, and I am relying simply on my notes ladies and
gentlemen, are lethargy. or unconsciousness, breathing difficulty or breathing stopped. and in some cases convulsions.

She stated. in cross-examination, that on Tristan's injuries, in her opinion. there was an immediate comatose state.

DR: SMITH:

Dr. Smith testified that he reviewed the postmortem report, which is Dr. Rao's report, Exhibit number 19. the photos of the C.T.Scan, the reports of Drs. Hollenberg. Malcolmson and Ockenden. the video interview,, which is now Exhibit One, and the transcripts of the witnesses at the Preliminary Hearing in this case.

Dr. Smith gave his opinion that Tristan died of non-accidentally-inflicted injuries: that Tristan died of blunt trauma to his head.

Dr. Smith considered cause of death as between shaken baby syndrome or blunt trauma to the head. and stated that the cause 4e favours is blunt impact.

Either Tristan was hit with something or Tristan was flung into something.

I want to read you something from my notes.

This is my note of Dr. Smith's evidence.

It deals with timing of the injury.

My note is that he said there is no absolute science with regard to timing of injuries;

that it is difficult to be absolute on time:

that there are factors that can affect timing;

that Tristan lived from injury to death approximately 16 hours. and this makes the pathology more difficult:

that it is not possible to separate injury 16 hours. 18 hours or 24 hours back from death.

Microscopically, it cannot be separated to 16. 18 or 24 hours.

Sixteen hours of life from injury makes timing difficult.

Based on pathology of blunt trauma, from point of injury. Tristan is no longer normal.

He was asked, when was child normal and not normal and he said look for some or all of the following before unconsciousness occurred after trauma; Crying, sometimes abnormal, unusual. whimpering, and not normal crying, change of behaviour, often irritable, wants to be left alone, or alternatively: wants cuddling, could be either: not eat and drink normally, vomiting a sign of head injury, lethargy maybe, may appear tired but not sleeping, really moving into unconsciousness.

Seizures are usually at the end of the process.

Shelly Kuzyk gave a good description of a seizure on Exhibit One.

Seizures may be subtle and not seen.

A bed fall cannot explain Tristan's injuries. It did not inflict serious harm to Tristan.

Ms. Kuzyk's description of an "arched back" is a good description of a seizure.

Head going back is a late change description of Tristan's injuries. This is an end stage.

Then I have a note. range of time from injury to extremis, and there was no, my understanding is that nobody asked and there was no definition of what was exactly meant by extremis, what point of time. what that was exactly.

Generally. it is thought to be at the end of something.

In medical terms. the end from injury to death.

But it is not, by my recollection of the evidence, it was not precisely determined what was meant.

Dr. Smith referred to the old literature. saying that range of time from injury to extremis. under that heading. the old literature was 24 to 36 hours.

The Doctor's own experience was six hours maximum.

The Doctor's opinion that six hours is not an upper limit and 24 hours is too much.

The Doctor says. therefore between six and 24 hours.

He said that if you don't accept statements of accused persons, then look to histories from motor vehicle accidents or falls for a reasonable upper limit.

The Doctor believes the upper limit is more than six hours.

A blunt impact is a longer time than a shaking type injury.

He said by my note, six hours, sure. eight or 12 hours, sure, and he said, by my note. the-first observers are the best observers.

Emergency room doctors may be too busy to interpret causes.

If Emergency doctors make good observations. then believe those observations.

My note is that Dr. Smith says it was possible for Tristan to receive lethal injuries at five or six p.m., 10 or 11 hours before unconsciousness.

My comment, Members of the Jury, is that it is for you to decide whether Dr. Smith was speaking of infant-head injury cases as a group, or whether he was speaking only about Tristan's case.

In cross-examination, Dr. Smith agrees that the time 30 - he is still talking about the same question - that the time could be 20 minutes from the time of injury to extremis.

He was asked a question about the shaking component, and my note is that he said "Yes, could be violent and prolonged shaking".

He said, "The trauma is violent", and question, "Was there severe abuse of this child?", and answer. "Yes".

The question then is, did Tristan's severe symptoms present immediately, or did the severe symptoms develop over a period of time?

If some time. how much time?

The difference of note. between the two opinions, is on the maximum side of the range and not on the minimum side. four hours plus or minus one or two hours per Dr. Rao, to certainly six hours and less than 24 hours per Dr. Smith.

Although allowing a range of time, Dr. Rao says for Tristan, her opinion is "immediate" time.

Dr. Smith does not believe timing of this kind can be precise.

He says with 20 minutes on the minimum side to the maximum that I have already discussed...

NEXT POSTING: SMITH FOR THE DEFENCE: PART THREE; DID SMITH'S INFLATED CREDENTIALS INFLUENCE THE JUDGE? There was a clear conflict between the expert evidence tendered by the prosecution and the defence as to the outer limits of the time at which the injuries were caused. Was it Dr. Charles Smith's inflated description of his qualifications that that tipped the jury in favour of the defence?

BLOGGIST'S NOTE: Regrettably, the transcript mispell's Tristin's name.

Harold Levy; hlevy15@gmail.com;

Smith For The Defence: Part One; His Qualification And Testimony;

Dr. CHARLES SMITH: "I, I HAVE NEVER TESTIFIED, I HAVE NEVER ON A MURDER TRIAL BEEN A WITNESS WHO HAS BEEN CALLED BY THE DEFENCE BEFORE".

DEFENCE LAWYER ROGER YACHETTI; "I DON'T KNOW WHETHER TO FEEL HONOURED OR SCARED".

REGINA VS. SHELLY ANNE KUZYK;

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MR. YACHETTI; NORMALLY, ARE YOU TESTIFYING FOR ANY PARTICULAR CONSTITUENCY. THE CROWN OR...

DR. CHARLES SMITH: LET ME BE VERY CAREFUL HERE. I DON'T, I DON'T PRETEND TO TAKE SIDES. IT IS NOT MY JOB TO ADVOCATE ONE POSITION OR THE OTHER IN A COURTROOM DISCUSSION. MY POSITION IS TO TRY AND BE AS HELPFUL TO THE COURT, AND WORK THROUGH WHAT CAN BE COMPLEX INFORMATION AND MAKE IT UNDERSTANDABLE BY PEOPLE WHO ARE NOT MEDICALLY TRAINED. SO, I DON'T, I AM NOT TESTIFYING FOR THE PROSECUTION OR FOR THE DEFENCE. YOU NEED TO UNDERSTAND THAT.

MR. YACHETTI: THANK YOU.

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MR; YACHETTI: IS IT POSSIBLE FOR YOU TO TELL US HOW MANY CHILD AUTOPSIES YOU HAVE PERFORMED IN YOUR CAREER?

DR. SMITH: NO, NO. I CAN'T.

MR. YACHETTI: HOW MANY?

DR. SMITH: WELL, IT'S OBVIOUSLY SOMETHING MORE THAN A THOUSAND, BUT I DON'T KNOW. I DO, AND YOU WILL FORGIVE ME FOR BOASTING, I DO MORE PAEDIATRIC FORENSIC WORK THAN ANYONE ELSE IN THIS COUNTRY.

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In January, 1999, Dr. Charles Smith testified as an expert witness for the defence in the second-degree murder trial of Shelly Anne Kuzyk who had been accused of killing her Tristin.

As the jury acquitted Ms. Kuzyk after hearing her testimony, I do not want in any way to cast doubt on the jury's verdict of acquittal;

This "baby-shaking" case, is, however, of interest to this Blog as the sole expert for the defence was none other than Dr. Charles Smith, who told Court this was the first time he had ever testified on behalf of the defence in a murder case.

By way of context, the timing of the injuries was a central issue in the case:

Fifteen-month old Tristin Tooke died of head injuries after being rushed to hospital from Kuzyk's Hamilton apartment shortly after 3.00 a.m. on Jan. 12, 1997.

Prosecutor Kevin McKenna contended that Kuzyk violently shook Tristin and inflicted the fatal injuries just minutes before the child was taken to hospital- at a time when she had exclusive access to him.

Defence lawyer Roger Yachetti argued that that Tristan had accidentally suffered the injuries as long as much as six hours earlier when he had fallen out of a waterbed -and that Kuzyk was a loving Godmother who had no reason to kill him.

Dr. Smith's qualification hearing and evidence proceeded as follows before Justice David Crane.

Dr. Charles Smith - In-Chief

HIS HONOUR: Just before the Jury comes in, perhaps, is there any issue for me as to the evidence from the next witness?

...SUBMISSIONS BY COUNSEL...

HIS HONOUR: We can have the Jury now.

...JURY ENTERS 3:40 P.M.

THE REGISTRAR: Are counsel content the Jury is complete?

MR. MCKENNA: Yes. thank you, Madam Registrar.

MR. YACHETTI: Yes. thank you.

HIS HONOUR: Next witness please, Mr. Yachetti?

MR. YACHETTI: Yes, Your Honour, I will call as the next witness for the defence. Dr. Charles Randall Smith. Doctor. would you come forward please?

EXAMINATION-IN-CHIEF BY MR. YACHETTI:

Q. Dr. smith, I want to show you a document which is entitled Curriculum Vitae. Charles Randall Smith, and ask you if that is an accurate description of your educational and professional past?

A. Yes. sir.

MR. MCKENNA: If I may just interrupt briefly, Your Honour. The Crown does not challenge the qualifications of this witness.

HIS HONOUR: Very well.

MR. YACHETTI: May I ask, Your Honour, that that be marked as the next Exhibit, I believe 32?

HIS HONOUR: Yes.

THE REGISTRAR: Exhibit 32. Your Honour.

EXHIBIT #32: Curriculum Vitae. Dr. Charles Randall Smith, referred to, produced and marked.

MR. YACHETTI Q. Dr. Smith, this is a fairly formidable document and my friend has already acknowledged your expertise, and I don't propose to go through it in its entirety, but I do want you to highlight those aspects of your Curriculum Vitae, which you say are most relevant to the issues in this case. Is that satisfactory?

A. Yes, sir.

Q. Firstly, where are you currently working as a Paediatric Pathologist?

A. I am employed at the Hospital for Sick Children in Pathology. My role there is, I am the Director of the Ontario Paediatric Forensic Pathology Unit.

.Q. How long have you been with Sick Kids in Toronto?

A. I joined active medical staff in 1981.

Q. I had asked you if you would consider going through this Curriculum,Vitae pointing out for us those particular aspects of it, which you feel particularly qualify you to express opinions in this case.

A. I can make several statements for that purpose. I am a Specialist in Pathology. My practise is limited to Paediatric Pathology.

Q. Just explain that for a moment? Obviously, that means that you concentrate on the pathology of children?

A. That's all I do. Within that, my position is as the Director of the Province's Paediatric Forensic Pathology Unit, and that's a Forensic Pathology Unit which was created some years ago by the Solicitor General and it serves as a resource for the greater Toronto area and also the Province as a whole for the investigation of sudden or suspicious deaths in young people.

In that role not only do I do autopsies under the Coroner's system - excuse me - but I am also obligated to teach in my professorial position at the University of Toronto and I teach police officers and Crown Attorneys and that sort of thing.

Q. Doctor, can I ask you to raise your voice up so that we can all hear what you are saying?

A. I'm sorry, yeah, I'm sorry.

Q. You teach at the University of Toronto, and to whom do you teach?

A. Anyone who 1 am told to teach, or anyone who will listen. I have different teaching responsibilities for medical students all the way up. Part of the thrust of my teaching is to teach residents or people who are undergoing their specialty training in pathology, and much of my teaching centres around the investigation of sudden or suspicious deaths.

Q. And you mentioned police officers, in that context could you tell us about that?

A. Well, that teaching is both formal and informal. Informal is in the autopsy room. Formally, I've taught police officers in various parts of this Province and various Provinces in Canada. I have taught in the United States. I have probably taught homicide officer-from - well, this is boasting - I guess I have taught them in all 10Provinces and probably just about all 50 States and for maybe 20 or 30 countries.

Q. I understand that recently, for example, you returned from India where you were sent to aid in the excavation of childrens' bodies allegedly as the result of a serial killer?

A. Yeah, that was a legal treaty signed between Canada and India. who called on me to go to India to do that work, yes.

Q. You mentioned that you were the Director of this Unit at the Sick Kids Hospital, is that correct?

A. That's correct.

Q. And how long have you been the Director?

The Unit was created about seven or eight years ago. so, you know, I helped the Solicitor General's Ministry get it up and running, so I have been the Director.

Q. Does that mean that every death certainly at the hospital of a child, is reviewed by you?

A. Well, not necessarily, if it is a medical death. If the child dies of cancer, then that falls under the standard hospital practice. We do Coroner's autopsies on infants and children, and I am not the only person who does it, you understand. There are several people who work with me, several other pathologists, but we perform those services for the greater Toronto area and beyond, so I also do some of that work for the Northwest Territories. Bodies are sent down for that purpose and then once in a while, for instance, I am going to British Columbia shortly to exhume a body up there, which they have never done before. So I end up getting involved in some projects on investigating infants and children's deaths in other parts of the country.

Q. Again, I am referring to your C.V., and I won't dwell on this much longer, but I want you to look at pages five to 24?

A. I am not sure what is on pages five to 24.

Q. I'm sorry, you should have that Exhibit before you.

HIS HONOUR: Madam Registrar, will you provide this to Dr. Smith?

A. Some of those are going to be peer-reviewed articles in the medical literature. Some of them will be invited lectures and that kind of stuff, presentations I have made at National or International Meetings, that kind of thing.

MR. YACHETTI Q. That is a listing of all your work in the area of Paediatric Pathology?

A. Well, yeah, unfortunately I haven't updated this for a little while, but it's, you know, it's everything up until March of a year ago.

Q. Is it possible for you to tell us how many child autopsies you have performed in your career?

A. No, no. I can't.

Q. How many?

A. Well, it's obviously something more than a thousand, but I don't know. I do, and you will forgive me for boasting, I do more paediatric forensic work than anyone else in this country.

Q. You have also testified in the courts of this country on numerous occasions?

A. Yes.

Q. Again, I don't mean to press you on numbers, but can you give us an idea of the number of times?

A. I'm sure it's over a hundred. I don't know if it would be 200. Maybe it is, I don't know.

Q. Normally, are you testifying for any particular constituency. the Crown or...

A. Let me be very careful here. I don't, I don't pretend to take sides. It is not my job to advocate one position or the other in a courtroom discussion. My position is to try and be as helpful to the court, and work through what can be complex information and make it understandable by people who are not medically trained. So, I don't, I am not testifying for the prosecution or for the defence. You need to understand that.

Q. Thank you.

A. I, I have never testified, I have never on a murder trial been a witness who has been called by the defence before.

Q. I don't know whether to feel honoured or scared.

MR. YACHETTI: Your Honour, I would ask that the Doctor be qualified to give expert opinion in his field.

RULING BY HIS HONOUR: Yes, the Court recognizes Dr. Smith as a duly qualified licensed Medical Practitioner in the Province of Ontario, with a Specialty in Forensic Paediatric Pathology and qualified to give opinion evidence. in that field.

A. Thank you.

MR. YACHETTI: Q. Dr. Smith, isn't it a fact that I retained your services in this matter to review certain material and to provide me with certain opinions?

A. Well, you asked me to review material and I don't know what you mean by provide opinions, but I discussed with € you what my opinion was.

Q. That information, which I provided to you, could you confirm that it was the Post Mortem Report of Dr. Rao, which is here as Exhibit 19?

A. On Tristan, yeah, I accept that.

Q. And I provided you with certain diagnostic imaging materials from Chedoke/McMaster, a Consultation Report of Dr. Hollenberg dated January 12th, 1997, a Consultation Report of Dr. Malcolmson, dated January 13th, 1997, the Preliminary Hearing transcript of Dr. Hollenberg, the Preliminary Hearing transcript of the evidence of Dr. Malcolmson, the Preliminary Hearing . transcript of the evidence of Dr. Ockenden, the Will Say Statements of Steve Gandza, and the Will Say Statements of Tim Bartolozzi, and as well you have viewed the Video Tape of the Statement taken from the accused on January the 12th, 1997, is that correct?

A. Yeah, I can't verify the dates without actually seeing the material, but yeah, that is sort o catalogue of, if the dates are correct, that is a catalogue of what I saw. Now, did you include in that post mortem photographs?

Q. I'm sorry, I neglected to do that. You also viewed the post mortem photographs?

A. I saw some photographs that were taken, I believe, while he was alive in the Intensive Care Unit as well as the Post Mortem Examination.

Q. Now, on the basis of what you have seen and read. observed in this case, are you in a position to provide certain opinions?

A. I can give you some opinions, yes.

Q. The first area I want 'to seek your opinion in is the area that we are concerned with here, namely the apparent non-accidental death of a young child. What issues do you consider? What primary issues do you consider in that sort of investigation?

A. There are really sort of two basic questions that people who investigate such deaths need answers to. The first is. can we look through the autopsy findings and we can look through the clinical records or consider the clinic records in association with that? Can we determine whether injuries, if the child has suffered injuries and not natural disease? Can we determine whether the injuries were, are best explained on an accidental basis or ..a non-accidental basis, that is they were inflicted injuries? That is the first question to answer. If the answer to that is that the injuries are best explained on a non-accidental basis, then the next question is can the pathology in concert with the clinical observations help us understand the mechanism with timing of injuries, so that we can, we can, when they occurred and how they occurred and by inference who may be responsible for that.

Q. Dealing with question number one, what is your opinion with respect to the nature of the in juries which you observed in Tristan Tooke?

A: Tristan died of non-accidental injuries.

Q: Secondly, Doctor, I want to ask you what you mechanism of the injuries?

A: It may help me if I can just have the post case I need to refer to it. if that is possible?

MR. YACHETTI: Exhibit 19 please?

A. I hope I won't get dragged into such detail.

MR. YACHETTI Q. All right. This is Exhibit 19. Doctor. the post mortem report.

A. This little boy died of blunt trauma to the head. Blunt trauma to the head, classically, or if we were to categorize it, it would fall into one of two basic categories. Either blunt impact injury, that is the head physically hitting an object or an object physically hitting the head, or the second category-which is acceleration/deceleration type injury, which goes under the umbrella of the term shaken baby, or shaking baby syndrome. I am convinced that Tristan's death is best explained on the basis of blunt impact injury.

Q. So, somebody hit him with something?

A. Or he hit something, or his body was made or his head was made to hit something. I can't tell you if something hit him or whether he was swung and flung such that he hit something.

Q. What can you tell us about the timing of those injuries?

A. Let Me make several statements here. The first is that there is no absolute science to timing of injuries. If you had asked me 15 or 20 years ago, I probably would have given you a much more precise answer or maybe better described a much more dogmatic answer to that. we know from recent studies that it is extremely difficult to be precise with things like the timing of injuries, bases on the appearances of bruises and such, so, so, so number one, there is no absolute science on the timing of injuries. The second is that there are factors which can affect the interpretation of the timing of the injuries, and we can well imagine that one or more of those factors are present here. So even if there was a precise science, there are some variables that would have to be taken into consideration. Some of those have occurred in Tristan's case, which makes it more difficult. The third thing is that you need to understand that Tristan lived for a period of time, between when he became extremely ill medically, medical extremis. if I can use that term, and when ultimately life support was discontinued. In that period of time, and help me here, I think it is about 16 hours, but my memory may be wrong on that.

Q. The evidence, Doctor, is that Tristan was taken to the hospital and arrived there at 3:19 with the extremis having been observed within the previous 15 minutes, 10 to 15 minutes or so.

A. 10 to 15 minutes is unimportant here, but you are dealing with a big part of the day.

Q. And that he died, or life supports were withdrawn at about 7:15 that night, which is about 16 hours?

A. 16 hours, yeah, and it really doesn't matter whether it is 16 hours or 18 hours or 14 or 20. The part of the problem is, that that period of time makes the pathology more difficult to interpret. So those are just a few sort of the
introductory statements that I would make. Now, based on the pathology alone, it is not possible to separate out injuries that occurred let's say 16 hours prior to discontinuation of life support versus 18 hours or 20 hours or 22 hours or 24 hours. There is not the precision that is needed, based on pathology alone, based upon gross appearance of injuries and based on microscopic appearances. Dr. Rao has done a thorough report. You need to understand that. She has made some observations in here which would give us different time ranges, but the problem is that once you are out about 16 hours, the time ranges become so variable that microscopically you cannot separate an injury that is 16 hours old versus 24 hours old versus 48 hours old. That can't be done. I wish it could, but there is not the precision.

Q. In fact Doctor. Dr. Rao told us that she did the autopsy in two stages, beginning the first day on January the 14th, and the second day...

A. The second day, the following day.

Q. ...January 15th?

A. Yeah, and that is not an uncommon thing to do and it is good practice to do that. Part of that is that it is possible to miss injuries, especially external marks of injury in the early post mortem period and that after the blood is removed from the body, it can be easier to pick up subtle changes in skin colour. So, it is not a bad practice at all.

Q. You started to tell us, and I am sure I interrupted you, you started to tell us that 16 hours out from the extremis, I will call it, provides difficulties in giving opinions in regard to the timing of the injuries?

A. Oh yeah, you can't, you can't establish narrow ranges of time when you are that many hours out. If he had not been resuscitated, and so the autopsy was performed with no time interval between collapse and death, then that would have afforded a greater degree of precision, but at this point in time the kind of precision that you need in these cases cannot be answered, based on pure pathologic grounds alone.

Q. So then...

A. So what are you left with? Well, there are two other avenues to interpret that. One is to go back to the clinical appearance, and the other is to consider what the literature tells us, what the medical literature says, to see whether or not clinically we can identify the critical point in time, or whether based on the literature we can understand that. And, let me just sort of wander into those two areas and try and give you the principles here and then maybe if I make these statements, then I will answer the questions that you need to ask me.
The first is this. Based on the pathology we see here. based on a blunt impact head injury - as I said there may be a shaking component, though it is certainly not convincing in my mind - based on this type of pathology, one of the important principles to remember is that from.the point of injury onwards, from the point where Tristan suffered his fatal head injury, he is no longer going to be a normal boy. That is a very, very important observation. Now, if you look at the medical literature. they will use terms like lucid interval and such, but really, because, because non-medical people don't understand what the word "lucid interval" is, the easiest way to still the problem is to say, when was the child normal and when were they not normal. And, what you need to do is to look at that change in behaviour to determine, or what you need to do is to determine when that change in behaviour occurred, because that then is the key to understanding when the injury occurred. That is a very important principle. Once the head injury has occurred, Tristan is no longer going to be normal.

Q. What abnormalities would you expect to see after that head injury?

A. Well... if I hadn't reached for my glass of water, I would have just gone on to. state, the kind of things that one can look for. I'm sorry. Now, you need to understand that the entire spectrum of changes do not have to be seen in any child. So some child can manifest all of the spectrum of changes and some child may not. Some child can manifest the spectrum of changes, but because of the nature of the observations, those are not apparent. And I will explain a couple of those, if I can valk through it. Before unconsciousness has occurred in a child, after a lethal blunt force head injury, before unconsciousness has occurred, some of the telltale things that one looks for are things like crying, which is a very simple thing, and sometimes the crying can be persistent or abnormal or unusual. Sometimes the crying may not be an out-and-out screaming, but may be a whimpering or may even be described as an unusual cry. I've heard descriptions like a "cat-like" cry, different terms that people might use to say, his crying was not the same as it normally is. Certainly in a normal crying for hungry baby, you give them a bottle they stop. In this case, it was different. So crying is part of it. One of the things that you look for is a change in behaviour. Does the baby respond normally to the surrounding environment? Do they want to play normally? Often they will be quite irritable. though they may not be crying, they may be quite irritable. They may want to be left alone. On the other hand, they may be irritable, but they want to be cuddled. So a head injury in a person Tristan's age - now Tristan chronologically is 15 months. but developmentally he is more like about 12 months, so you need to keep that in mind - he can't localize pain, and so it can be extremely difficult for a care giver to know whether the discomfort is caused by a head injury or by colic. and so babies can be cuddled because, you know, he must have an upset tummy. You know, I tried feeding him and he didn't feed. therefore, he must have an upset tummy and he is irritable. And that is the next thing, is that, is that these young people will not eat and drink normally, though you may try and give him a bottle or give him something to drink, they may drink a little bit. What you need to do is look for eating, when they last ate and they last ate normally and when there was a loss of appetite. Vomiting. of course, can be part of it. Not just - mean for those of us who have fed - nojust kind of the spitting up that leaves a little white spot on your shoulder, but vomiting and vomiting is an important sign of head injury and that can occur before loss of consciousness. In addition to irritability, lethargy may come along, and once again here, it is a little bit difficult because someone can have a young child who is irritable, may appear to be tired and be irritable and you put him down to sleep and they don't really sleep. It is really lethargy, as part of the moving into the state of unconsciousness. Of course unconsciousness will occur at some point in time. Seizures are not infrequent. Seizures tend to occur more towards the end of the process, of course, than at the beginning of this process. Seizures can also be different than what we would expect in adults.
Now, having seen the video-taped interview with Shelly Kuzyk. there is a great description, a very, very good description of a seizure that she gave. But seizures can also be very subtle in young people. They can be just kind of a twitching maybe. you know, on one side of the face or an arm, one part of the body or one side of the body, and of course if the child has been put down for the nap, they can have seizures and that may not be apparent. No child can be seemingly asleep and have seizures, but if an adult isn't watching, they of course would not know that such twitching is going on, so seizures can occur, but they are not necessarily seen, and that is different than an adult. I mean if you or I get a seizure and. we were in bed, you know, our wives would know something is wrong, but in a child, in a young child, that is not necessarily so.

Q. Doctor, I hate to interrupt you, but I just want to back you up for a moment and ask you to explain what you meant when you said that the video-taped interview disclosed an excellent - I am not sure you used the word "excellent but a very good description of a seizure?

A. Yeah, yeah, you know, in the story of Tristan falling off the waterbed onto this floor, and you need to under-stand that a fall from such a height can never explain death, and so do not believe for a moment that Tristan's injuries were related to that. though such an event could well have occurred, you know,and believe me I am not saying for a moment that he did not fall off the waterbed.

Q. But you are saying the fall off the waterbed alone...

A. Yeah. did not kill. But on the description, what was extraordinary...

HIS HONOUR: He did not say that Mr. Yachetti. He t did not say fall off the waterbed "alone". You said that.- Just so the jury is clear. If you want to
go over it again, please do.

MR. YACHETTI Q. Sure.

A. I think I missed something here. Fall off the waterbed did not inflict serious harm on Tristan, point number one. Point number two is that kids, after they have suffered a fatal head injury, can still undergo accidental events or can in fact manifest accidental events, for instance, in the process of having a seizure. And. so. accidents or accident-like events can occur, which can be confusing in the investigation, and in the understanding of what has gone on. But, let me, having detoured there, let me come back to the description that was given. Just an extraordinary description of an arched back. and in fact pointing to, you know, a chair in the room which had, in fact, a curved back on it, you know, that
is an extraordinarily good description of a seizure, of opisthognathous. where the entire extensor muscles of the back go into spasm and it causes the back to arch, and also the change in muscle tone. Kids, and this is usually terminally this process from head injury to the edge of death. will manifest changes in tone. They can either be very rigid or very floppy, and in this one, I was interested in the description of kind of the head going back, because that could have been part of the seizure or that could have been floppiness associated with the sort of the late stage changes in this head injury. But that description was as good a descrip-
tion as you are ever going to get of a seizure in a young person.

Q. If that seizure was indeed a seizure, described well. as you have said, and you do not believe for a moment that the child's death was caused by a fall from a waterbed...

A. No. no. it could not have occurred on that basis.

Q. Then how do we explain the seizure?

A. Well, the head injury has already occurred. We are at the end stage. The head injury could have occurred, you know, 10 minutes earlier, 10 hours earlier. We don't know when the head injury occurred. What we know is we are dealing with a boy who is at the point of death.

Q. So, what is the outside limit, remembering that you have told us already that it is not an exact science, what is the outside limit for the occurrence of the head injury?

A. Well, let me give you several statements here, and none of them are going to be satisfying in terms of the degree of precision that is needed in this case. If you look through the literature from some years ago. you will find descriptions that will give you limits off, 24. 36 hours. Those were probably not, those case reports were probably not as critically-reviewed as we would now. Nevertheless, this problem of knowing what the upper time limit is between head injury and medical extremis, still continues to tog us. It is common, in my experience, you know, in going to meetings of, in discussions of things like lethal head injury in young people, lethal-inflicted head injury or lethal non-accidental head injury in young people is toga ve, to have, you know, time limits of things like six hours given. Now, I can tell you that in Ontario I have personally had experience with cases wherein it is more than six hours. There is no clear upper number. Research done in Alberta pointed to one case, in one interpretation of one that was 23 hours. we can say 23 hours might be a little much, but there is none. so I can give you my opinion and say I am, I am not convinced that 24 hours is a reasonable upper limit, but I also know that six hours is not the upper limit. So, could I fit somewhere between six and 24 hours? Sure. But you need to understand, Mr. Yachetti. that there are people who have different views on this, and I can, you know, I know people who would say. oh it's 36 hours. I don't personally believe that, but they do, and I know people who will give you an extremely tight time frame, and I am absolutely convinced that that is wrong. The difficulty is that there is no exact science here. and the kind of situations that we have to use are not good situations, because of course when you are dealing with inflicted head injury, we don't know what the history was. You know, we don't. because you are largely dealing with someone who is charged, they are not going to sit and give you a blow-by-blow description of what went on and exactly what went on, and so one has to be very. very cautious about accepting statements from accused people, even when they do plead guilty and give statements.
But the difficulty is that if we don't accept those, then we have to look at other similar situations and try and figure it out, like things like the young child who is involved in a motor vehicle accident, or the young child who is crossing the street and is struck by a car. Those kind of situations which are, you know, the child who falls two storeys or three storeys from a balcony and survives, or at least survives for some periodebf time, those are the kind of stories that we have to use to try and work through what a reasonable upper limit is, and there is not enough of them, and there is not enough of a science there. In my opinion, having seen cases in Ontario, I am convinced that the upper limit is more than six hours. I know there are people. and some people who I respect, who say the limit is more like 24 hours. That may be a little bit generous in my mind. but I certainly cannot dispute it.

Q. what do you say the upper limit in this case is, in your opinion Doctor?

A. If Tristan was a single blunt impact - which is what I think he was and not a shake - blunt impact can have a slower course, I think, than a shake, because shaking tends to involve a great deal more axonal(ph) damage. So could it be six hours? Sure. Could it be eight or 10 or 12 hours? Sure. I can't tell you what it is. The most important way of working through that is not to look at the medical literature, not to look at the anecdotal evidence, it's to go back to the clinical observations, because they are the most helpful pieces of information in terms of working through this problem.

Q. And in that regard. Doctor, in terms of clinical observations. where would the emergency room doctor fit in in terms of his ability to assess?

A. A good principle is that your first observers on anything are the people who are in the best position to help you understand what went on. That is principle number one. But, you need to understand somehing else here. Principle number two is emergency room does can be so overwhelmed with the problem of stabilizing and resuscitating a critically-ill child, that they may not have the luxury of spending the time of working through, you know, what, you know, what the interpretations are. I mean an emergency room doc may have that. but he or she may also be stuck with a critically ill child and their first job is to try and stabilize him and get him to somewhere else for help. so they may not be able to do that. If you have an emergency room doc who has made good observations and is experienced, then believe those-observations. On the other hand, if, you know, if they have not had the luxury of good observations, then you need to understand that that is the world that existed at that moment and they didn't have the opportunity. It is not to be critical. It is just the reality of trying to stabilize an extremely ill child.

Q. Finally, Doctor, on the facts of this case, as you understand them, was it possible that Tristan Tooke received his lethal head injury at sometime between 5 and 6 o'clock the evening before he became unconscious; that is 10 or 11 hours prior to unconsciousness?

A. Yes. oh yes. I am very concerned about what went on some hours earlier, absolutely.

MR. YACHETTI: Thank you Doctor. Those are all my questions.

HIS HONOUR: Mr. McKenna?

MR. MCKENNA: Thank you. Your Honour.

CROSS-EXAMINATION HY MR. MCKENNA:

Q. Doctor, again though, when putting all of your evidence together, you are saying that it could have happened at 5 and 6 o'clock. that is just based on information you know, but obviously if you had more information, the better your opinion?

A. That right. You need to understand...

Q. Okay....

A. ...that, my opinion is as good as the information I have.

Q. Okay. I don't mean to interrupt and I don't want to keep you here long this afternoon. but I am just going to ask though that you try - I appreciate that you have a lot to say and you are a Iot more knowledgeable than any ofs here - but I am going to ask you to try and just answer the questions simply. So, question number one is, the more information you have, the better your opinion?

A. That's right.

Q. Question number two is that obviously when you start talking about it happened between 5 and 6, if you had personal knowledge of what took place inside, let's say, this residence between 5 and 6, or I'm sorry. between say 6 and 3 o'clock in the morning, that may be very helpful?

A. Absolutely.

Q. When you are talking about limits, you are not talking about it being between 6 and 24 hours? The 6 to 24 hour gauge is your upper limit? I suggest to you that there is absolutely no doubt in your mind that it could have also been immediate?

A. It could have been 20 minutes, sure.

Q. And it could have been less than 20 minutes? A. Blunt impact, that is moving fairly fast. Q. All right, I will give you 20 minutes.

A. I think we can agree on less than an hour. It is not worth it to argue about what less than an hour means.

Q. All right. Now, the nature of these injuries, let us just -talk briefly about them? You have in your own mind, as I understand, you were questioning whether or not there is a shaking component to this injury?

A. That's right.

Q. You are not saying no, you are just not sure?

A. well. yeah. the injuries can all be explained on the basis of blunt impact.

Q. But there could be a shaking component? A. That's right.

Q. And shaking, baby shaking syndrome, as I understand it, correct me if I am wrong, is 1olent, repetitive shaking with a shearing of the bridging veins in your head?

A. That is one component of it, yes.

Q. Is it violent?

A. Yes, violent and prolonged.

Q. Violent, prolonged, repetitive?

A. Yes.

Q. All right. Blunt force trauma, would you also describe that as violent?

A. Yes.

Q. This is not careful treatment of a child, is it? A. No, absolutely not.

Q. Would you agree with me that this is severe abuse of a 15 month old child?.

A. I don't know, when you have a lethal head injury. I don't know that you can get anymore severe than that in terms of a head injury.

MR. MCKENNA: Thank you Doctor.

HIS HONOUR: Any re-examination?

MR. YACHETTI: I have no re-examination, Your Honour..

HIS HONOUR: Thank you Doctor...

Next posting: Smith for the defence: Part Two: The judge's charge to the jury;

Harold Levy; hlevy15@gmail.com