The Goudge Inquiry and Forensic Pathology in Canada

Abstract

Aims:

This article analyses the effects of The Inquiry into Pediatric Forensic Pathology in Ontario, commonly known as the Goudge Inquiry, and its effects upon forensic pathology in Canada.

Methods:

The Goudge Inquiry was a Government of Ontario public inquiry that examined the delivery of pediatric forensic pathology services to the Ontario Coroner’s Office and the Canadian criminal justice system. The inquiry was conducted by Mr. Justice Goudge, a court of Appeal Judge and made substantial recommendations of improving forensic pathology in a Coroner system and its role in delivering evidence to the criminal justice system. This article reviews the inquiry and discusses the effect of the inquiry on the development of forensic pathology in Canada and academic literature about the inquiry.

Results:

The Inquiry has had important effects on the role of all expert witnesses in the courts and is the most substantial examination of forensic pathology by any judicial inquiry.

Conclusions:

The Goudge Inquiry has been considered a significant success, being described as transformative.

Introduction

The Goudge Inquiry was a public inquiry held in Ontario, Canada, that reported in 2008 and the full report is available online (1). The Inquiry was established to examine the delivery of pediatric forensic pathology services in the Province of Ontario, Canada, and make recommendations to the provincial government relating to concerns that had arisen about the delivery of pediatric forensic pathology within the structure of the Ontario’s coroner system. It is thus more formally known as the Inquiry into Pediatric Forensic Pathology in Ontario but is usually referred to as the Goudge Inquiry named after the judge who conducted the inquiry. The Inquiry has had major effects upon the medicolegal system in Ontario and the criminal justice system in Canada and its recommendations have implications beyond Canada.

Medicolegal Systems in Canada

Canada is a country composed of ten Provinces (equivalent to States in the USA) and three Territories and has a legal heritage from both England and France, as well as indigenous cultures. English common law was introduced into Britain’s Canadian colonies and so all the criminal, administrative, and private law of the provinces and territories is founded in English common law, with one exception. The exception to this is Quebec, which, by the Quebec Act 1774 has French Civil law as its private law. Criminal law was English common law until Canadian criminal law was codified, the first code being enacted in 1892. Criminal law is thus the same in each province, and the Code is formally written in both of Canada’s official federal languages, English and French.

Provinces and territories, not the federal Government, are responsible for structure and delivery medicolegal death investigation systems. This has resulted in a variety of coroner systems, including in Quebec, that include medically qualified coroner systems, lay coroners and legal coroners, as well as medical examiner systems led by forensic pathologists in four provinces. Coroners and medical examiners are appointed in all provinces in Canada, not elected (2).

In Ontario, the coroner’s system is governed by the Ontario Coroner’s Act, currently the Coroners Act, R.S.O. 1990 c. c.37, the most recent amendment to the Act being in 2021 (3). Coroners must be licensed medical practitioners. At the time of the events described the structure of the Office of the Chief Coroner of Ontario consisted of a chief coroner, deputy chief coroners, regional coroners, and investigating coroners, most of whom had a background in general practice/family medicine. The Office of the Chief Coroner was the responsibility of the Ministry of Community Safety and Correctional services, now again renamed the Ministry of the Solicitor General (before 2003 it was also known by that name). It is separate from the Health Department and the Department of the Attorney General. The Ministry’s largest areas of responsibility are for policing and prisons.

Forensic pathology at the time of the inquiry was provided by a small number of qualified forensic pathologists, who were based in Toronto or other major cities in Ontario, as well as anatomical pathologists based throughout the province. There was an appointed chief forensic pathologist, but the position was not a statutory one. Most medicolegal autopsies were conducted by anatomical pathologists without forensic pathology training based in various hospitals in the province, including homicides.

At the time of the inquiry, the quality and accuracy of a pathologist’s work was under the supervision of the Office of the Chief Coroner of Ontario. Forensic pathology was not recognized as a specialty by the Royal College of Physicians and Surgeons of Canada (RCPSC), which is the postgraduate organization responsible for accreditation of medical and surgical training programs in Canada (4).

The History of Events Leading to the Goudge Inquiry

Charles Smith worked as a pediatric pathologist at Toronto’s Hospital for Sick Children (commonly known as SickKids) from 1981 to 2005. In 1992 he was appointed the Director of the Ontario Pediatric Forensic Pathology Unit which was established at SickKids by the Office of the Chief Coroner and with the support of the hospital. His training was in anatomical and pediatric pathology, but he had no formal training in forensic pathology. However, his appointment in a prestigious hospital and with support of the coroner’s hierarchy gave him additional credibility. He came to dominate pediatric forensic pathology in Ontario and beyond over the next few years and was in an unchallenged position as the sole practicing pediatric forensic pathologist. Concerns however began to be expressed about his professionalism, the opinions he was coming to in his reports, and in the evidence he gave at trials. Initial concerns about his work had been expressed as far back as 1991 before the formal establishment of the Ontario Pediatric Forensic Pathology Unit, when a judge expressed severe criticisms of his work. Over the next decade those concerns would grow. Complaints were made to the medical licencing authority in Ontario, the College of Physicians and Surgeons of Ontario (CPSO), and the judicial criticism of Smith was discussed, but not acted upon by the chief coroner. Eventually the concerns could not be ignored and when a new chief coroner was appointed, along with a recently appointed new chief forensic pathologist, the chief coroner called for a review of Smith’s work in 2005. After initial review, this led to the establishment of a panel of five forensic pathologists who were external to Ontario and the Office of the Chief Coroner, to conduct the review. The five pathologists were Dr. J Butt, Former Chief Medical Examiner of Alberta and Nova Scotia, Canada, Dr. J. Crane, State Pathologist for Northern Ireland, UK, Dr. C. Milroy, Chief Forensic Pathologist, Forensic Science Service, UK, Dr. P Suakko, Forensic Pathologist, Turku, Finland, and Dr. H. Whitwell, Forensic Pathologist and Forensic Neuropathologist, UK. The purpose of the review was to ensure Smith’s conclusions were reasonably supported on the materials available. They were to report to the Chief Coroner of Ontario.

The panel was asked to review 45 cases that had been triaged as potentially causing concern. They reviewed the autopsy reports, ancillary investigation, photographs of autopsy and scene where available, radiology that had been performed and testimony transcripts where applicable. In Canada, in serious criminal cases, there is typically a preliminary hearing, which takes place before trial and determines whether there is sufficient evidence for a trial (there are no longer any grand jury hearings in Canada). Witnesses, typically called by the prosecution, give evidence under oath and are subject to cross-examination with judge and defence lawyers present, but the proceedings are not reportable in the media before the full trial, because of common law sub judice rules. The purpose of the hearing is to establish whether there is sufficient evidence for trial. As such it is preliminary hearing testimony that is most commonly available for review, as transcripts are produced before trial.

The results of the Chief Coroner review were that while in 44 of the 45 cases appropriate investigations had been conducted, in 9 of the 45 cases the reviewers did not agree with significant facts that appeared in either Dr. Smith’s report or testimony. In 20 of the 45 cases, the reviewers took issue with Dr. Smith’s opinion in either his report or testimony. In 12 of these cases a finding of guilt had been made by the courts.

The panel’s report was handed to the Chief Coroner and this was released on April 19, 2007. Six days after the release of the findings, an Order in Council was issued by the Provincial Government establishing a Commission of Inquiry that was to become known as the Goudge Inquiry. (An Order in Council is a type of legislation issued in the name of the Federal or Provincial Government).

Public Inquiries in Canada

A public inquiry is a tribunal of inquiry established by Government that examines an issue of public concern (5). It is a method used in many countries with a common law heritage, including the United Kingdom, Ireland, Australia, Hong Kong, and South Africa as well as Canada. A related form of inquiry is a Royal Commission that is also used to examine matters of major public importance. Royal Commissions have greater powers but they are less commonly used than ordinary public inquiries. A public inquiry is typically headed up by a judge or senior lawyer. Many inquiries have been related to high profile deaths and in the UK have included the “Bloody Sunday” deaths in Northern Ireland (the Widgery Inquiry in 1972 and the Saville Inquiry in 2010), the murders by the medical practitioner Harold Shipman (final report in 2005), and an inquiry into deaths during pediatric cardiac surgery in Bristol (The Bristol Inquiry 2001) that also raised issues about organ retention (6-8).

In Canada public inquiries may be called by the Federal government or a Provincial Government. Since Canadian confederation in 1867, there have been over 400 federal inquires as well as multiple Provincial Government inquiries. Such inquiries in Ontario have included an examination of the faulty forensic science in the Guy Paul Morin case (1998), who had been wrongly convicted of murder, the “Motherisk” commission which looked at the flawed toxicology testing of hair for drugs that were used in child protection cases (2018) and an inquiry into the Wettlaufer case, a nurse who was a serial killer of patients in long-term care facilities (2019) (9-11).

Inquiries are held in public. The Government appoints a Commissioner and the Commission has powers of subpoena witnesses giving evidence in public on oath and they are subject to cross-examination. Lawyers are appointed to the inquiry by the Commissioner and they conduct investigations and then present witnesses. Interested parties also have the right to legal representation and cross-examination of witnesses. The role of the inquiry is to identify deficiencies in public services and functions and make recommendations to government, which are produced in a public available report.

Methods

This article reviews the Goudge Injury and its effects upon Forensic Pathology, both in Ontario and in the Canadian Criminal Justice System

Results

The Goudge Inquiry

Preliminary procedures

The Order in Council set out the parameters of the Inquiry. The Commission in this case was required to conduct a systemic review and assessment of the way pediatric forensic pathology was practiced and overseen in Ontario, particularly its interactions with the criminal justice system. The Commission was to make recommendations to restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and the criminal justice system.

The Commissioner appointed was Mr. Justice Stephen Goudge, a judge of the Court of Appeal of Ontario. He had responsibility for designing and conducting the public inquiry. He appointed lead counsel to the commission and other counsel who had expertise in criminal law and in the conduct of public inquiries. Administrative staff were also appointed, along with policy and research staff.

Interested parties, who included the affected families, the government of the Province, the Office of the Chief Coroner, the Hospital for Sick Children, legal organizations involved in the criminal justice system including prosecution, defence and representatives of first nations, the CPSO (the medical licensing authority in Ontario), and Dr. Charles Smith were granted legal representation. Commission counsel conducted the interviews of all witnesses and collected documents; 36,000 documents were collected, scanned, and put in a searchable database.

The Public Inquiries Act does not permit witnesses to be compelled to be interviewed but all witnesses agreed to be interviewed except Dr. Charles Smith. Witnesses can however be summoned to give evidence at the public hearings and all did, including Charles Smith. A public inquiry is not subject to the rules of evidence and procedure of criminal or civil trials. However, the inquiry must have procedural fairness, but otherwise the Commission can create its own rules and process.

Notices of alleged misconduct

Under the terms of the establishment of this Inquiry, no civil or criminal responsibility could be assigned by the Commission. The Public Inquiries Act does not permit a finding of misconduct unless sufficient notice has been given of the substance of the alleged misconduct. Notices were served to certain people but neither the notices nor their existence were disclosed to others. A public inquiry cannot order punishments or medical licence restrictions.

The Review Panel

The Order in Council provided that

“The Commission shall review any existing records or reports relevant to the mandate, including the results of the Chief Coroners’ Review announced on April 19, 2007, and other medical, professional, and social science reports and records.”

As a consequence, the Commission reappointed the five forensic pathologists who had conducted the Chief Coroner’s review to rereview material for the Inquiry to produce more detailed reports. Having prepared the reports, the review panel was made available to the legal teams of interested parties.

To provide an overview of Forensic pathology to the Commission, the Commission had seminars provided by staff of the Victorian Institute of Forensic Medicine, Australia, before the public hearings.

The Forensic Pathology Review of the Cases

The process of reviewing the cases was conducted by the five pathologists previously used in the Chief Coroner’s Review. The forensic pathologists’ reviews were made on the same materials but with new questions from Commission counsel with a view to producing more comprehensive reports that would be used to present evidence to the Commission’s public hearings.

The reports produced were then incorporated into an overview report produced by commission counsel. An example is detailed in Appendix 27 of the Goudge Report involving the case of Valin (all the children involved in the report were only identified by their first name for legal and confidentiality reasons). Ultimately of the 20 cases that had caused concern following the Chief Coroner’s review, 18 were presented to the tribunal, as the other two cases were then active in the criminal justice system. Each overview report prepared by Commission counsel had summarized the facts of the case in a neutral nonargumentative way, and the steps taken in the death investigation, the criminal proceedings, and the child protection proceedings that took place. Counsel for all parties were asked to comment on these reports before they were finalized. The intention was to shorten any oral evidence to that necessary for the role of the Inquiry.

As well as the individual case reviews, institutional reports were sought from the Chief Coroner for Ontario and the Hospital for Sick Children and obtained by Commission counsel.

Evidence

Oral evidence was given publicly, on oath or affirmation. The witnesses included the key players in the system when Smith was working, including Smith himself, who gave evidence for a week. People involved in death investigation during the relevant time gave evidence, including Dr. Young, the Chief Coroner and Dr. Cairns, Deputy Chief Coroner. The then current Chief Coroner and Chief Forensic Pathologist also gave evidence, as did other coroners. Directors of forensic pathology units in Ontario were called to give evidence on systemic issues and the external expert panel of forensic pathologists gave evidence about the cases and systemic issues. These experts presented the 18 cases to the Commission over a period of two weeks as two panels under oath. All witnesses were subjected to cross-examination but there was little dispute with the findings and opinions of the external expert forensic pathologists that were not significantly challenged. One noteworthy exception was the former Chief Coroner, who stated that Smith’s opinion on timing of injuries in one case (Jenna’s case) was reasonable. This, noted Commissioner Goudge, was despite the former Chief Coroner having no training in pathology and illustrated the problems of oversight by nonpathologists of the work of pathologists.

After the sworn testimony, the Commission conducted policy round tables of experts, including many drawn from outside Canada. These discussions were not conducted on oath, but allowed an examination of how other organizations conduct medicolegal investigations, training, and organization.

Forensic Pathology and Systemic Issues Identified

Commissioner Goudge addressed three essential questions in his inquiry:

1. What went wrong with the practice of pediatric forensic pathology?

2. What failed with the oversight to allow it to go on for so long?

3. How do we keep it from happening again?

The main forensic pathology issues identified by the external experts with the work of Charles Smith were a lack of pathology knowledge long with no appropriate training in forensic pathology and resultant inappropriate testimony. Among the errors were failing to recognize dog bites and calling them stab wounds, failing to time injuries correctly, resulting in the wrong person being charged with murder and the real killer not being charged for many years, inappropriate knowledge of pediatric head injury and default diagnosis of asphyxia in deaths with nonspecific findings.

From the 45 cases examined, the 20 cases where reviewers took issue with Dr. Smith’s opinion in either his report or testimony were used as the basis to examine systemic issues arising. Smith subsequently acknowledged his lack of training and bias in giving evidence, coming to see himself as part of the prosecution team. The main errors are summarized in Table 1.

Table 1:

Pathology and Testimony Errors Committed by Charles Smith

Thinking “dirty” rather than truth.

Default diagnosis of asphyxia where non-specific findings were present.

Failure to recognize and record evidence of sexual abuse in a child and take a sexual assault kit.

Misinterpretation of normal post-mortem anal dilatation as evidence of sexual abuse (12).

Misinterpretation of hypostasis in the neck as proof of compression of the neck (12).

Over interpretation of brain swelling as proof of impact head injury.

Over interpretation of a bruise as being from a patterned object.

Misinterpretation of dog bites as stab wounds.

Stating in evidence there was a difference between adult and pediatric stab wounds, giving the impression of expertise that others did not have

Failure to recognize timing of injuries at both macroscopic and microscopic level.

Failure to give physical evidence obtained at autopsy to the police for further analysis.

Personal criticism of other experts when challenged about opinions.

Perception he was part of the prosecution team.

A total of 80 systemic issues were identified and were publicly posted on the Inquiry website before the public hearings. The issues are summarized in Table 2.

Table 2:

Categories of Systemic Issues Identified by the Commission.

1. Training and certification of pediatric forensic pathologists

2. Institutional considerations (where should pediatric forensic autopsies be conducted)

3. The postmortem examination

4. The postmortem report

5. Testimony

6. Quality control

7. The role of the coroner

8. The role of the police

9. The role of the Crown (the prosecution)

10. The role of the defence

11. The role of the child protection agency

12. The role of the family

13. Corrective measures

14. General (e.g., if there is a significant change in the science of pediatric forensic pathology how should the criminal justice system react, should the Court of Appeal for Ontario issue guidelines, what can Ontario learn from other jurisdictions)

The Commission reported on 1st October 2008. The Commissioner stated before his recommendations that work had already started to redress the systemic failings in the practice and oversight of pediatric forensic pathology. He produced 169 recommendations and stated they were to build on the work that had already started to protect the administration of justice and create the forensic pathology service that the criminal justice system needs and the people of Ontario deserve. The main areas of recommendations made by Commissioner Goudge are summarized in Table 3.

Table 3:

Main Areas of Recommendations Made by the Commission.

a) Professionalizing and rebuilding pediatric forensic pathology (recommendations 1-11)

b) Reorganizing pediatric pathology (recommendations 12-37)

c) Enhancing oversight and accountability (recommendations 38-60)

d) Improving the complaints process (recommendations 61-67)

e) Best practices (recommendations 68-83)

f) Effective communication with the criminal justice system (recommendations 84-100)

g) The roles of coroners, police, crown (prosecution), and defence (recommendations 101-128)

h) The role of the court (recommendations 129-140)

i) Pediatric forensic pathology and potential wrongful convictions (recommendations 141-148)

j) First nations and remote communities (recommendations 149-162)

k) Pediatric forensic pathology and families (recommendations 163-169)

These were accepted by the Government. They included the need to remove the forensic pathologists from the supervision of the Coroner’s Office and establish the Ontario Forensic Pathology Service, with this enacted in an amended Coroners Act. This occurred in 2009 and the position of Chief Forensic Pathologist was established in the Act. A governing council to oversee death investigation in Ontario was established that oversees both the Office of the Chief Coroner of Ontario and the Ontario Forensic Pathology Service. Goudge also called for the RCPSC to approve the accreditation of training programs in Canada. This had occurred, but training had not started. Furthermore, he called for closer links between the medical schools and forensic pathology units. He addressed the need for funding and the need to do autopsies in properly funded regional units with forensic pathologists properly remunerated. The Commissioner called for postmortem examinations to be conducted by qualified pathologists and forensic pathologists under the guidance of the Chief Forensic Pathologist. For criminally suspicious deaths he called for all cases to be conducted by a certified forensic pathologist.

His report led to the establishment of the Death Investigation Oversight Council (DIOC). He called for the governing council, on the recommendation of the Chief Forensic Pathologist, to appoint the Directors of the Regional Forensic Pathology Units who are to assist the Chief Forensic Pathologist and his Deputies in creating quality assurance and peer review processes, and other mechanisms of review. Peer review was to be conducted on all criminally suspicious deaths. He called for an environment of constructive criticism. A system of peer review of testimony given by forensic pathologists in criminal proceedings was to be established.

The Commissioner looked at best practices. He called for evidence-based forensic pathology and stated that this was incompatible with the “think dirty” approach that had been prevalent in the Office of the Chief Coroner during the period Charles Smith was working and that best practice meant “thinking truth.” He recognized the problem of confirmation bias, but stated that in general appropriate information should be provided to forensic pathologists and not filtered by coroners or police. Autopsies and information given and obtained in the examination should be properly recorded so it could be reviewed.

In respect of interaction with the criminal justice system he stated that opinions should be expressed in writing as soon as possible, which should include the facts upon which it is based, the reasoning used to reach the opinions, and the limitations of the opinion. He noted that as many of the users of a pathologist’s report are lay people, the opinions should be expressed in language that is understandable and guidance should be given on how reports are written and what language to use and what to be avoided. The opinions should be based upon an empirical evidence-based approach rather than authoritative claims based upon personal experience. Specifically, he criticized the use of asphyxia as a cause of death, which was commonly used by Charles Smith. In expressing standards of proof, Forensic Pathologists should not use the term “beyond reasonable doubt” which is a legal standard, that has no correlation with science and medicine. Similarly, lawyers should not get pathologists to express their opinions in legal terms. He also criticized forensic pathologists who base their opinions on circumstantial evidence or nonpathology information to bear the entire burden of support of their opinion, and should not stray out of their area of expertise. Any use of circumstantial evidence in an opinion must be transparent. When forensic pathologists use evidence from consultations this must be clearly stated.

Discussion

Aftermath of the Goudge Report

The main change in the structure of the Ontario death investigation system was the establishment of the Ontario Forensic Pathology Service and the formalization of the position of the Chief Forensic Pathologist in the Ontario Coroner’s Act. The Act now states:

“The Lieutenant Governor in Council may appoint a forensic pathologist to be Chief Forensic Pathologist for Ontario who shall,

1. be responsible for the administration and operation of the Ontario Forensic Pathology Service;

2. supervise and direct pathologists in the provision of services under this Act;

3. conduct programs for the instruction of pathologists who provide services under this Act;

4. prepare, publish and distribute a code of ethics for the guidance of pathologists in the provision of services under this Act;

5. perform such other duties as are assigned to him or her by or under this or any other Act or by the Lieutenant Governor in Council. 2009, c. 15, s. 3.”

The Act now defines pathologist and forensic pathologist as follows:

“pathologist” means a physician who has been certified by the Royal College Physicians and Surgeons of Canada as a specialist in anatomical or general pathology or has received equivalent certification in another jurisdiction;

“forensic pathologist” means a pathologist who has been certified by the Royal College of Physicians and Surgeons of Canada in forensic pathology or has received equivalent certification in another jurisdiction.

The Act also established a DIOC. The Act states:

The Oversight Council shall oversee the Chief Coroner and the Chief Forensic Pathologist by advising and making recommendations to them on the following matters:

1. Financial resource management

2. Strategic planning

3. Quality assurance, performance measures, and accountability mechanisms

4. Appointment and dismissal of senior personnel

5. The exercise of the power to refuse to review complaints under subsection 8.4 (10)

6. Compliance with this Act and the regulations

7. Any other matter that is prescribed.

Academic Writing on the Goudge Inquiry

The Goudge Inquiry has attracted academic writing as well as being quoted in Canadian courts (13-19). This has included medical, legal, and sociological scholars on the results of the Goudge inquiry, as well as the function of inquiries themselves. Goudge himself has published articles in legal journals (14). Much of the legal writings relate to Smith as an expert in the criminal justice system and issues around child abuse. Goudge identified the ten most important ways that Smith failed in his role as an expert and gave examples. They are listed in Table 4. These may all be considered as classic errors by an expert but were also systemic errors as he was permitted to behave in that way without adequate oversight.

Table 4:

Mistakes made as an expert by Dr Smith.

1. The Expert as Advocate

2. The Inadequately Prepared Expert

3.The Overstated Expertise of the Expert

4. The Expert and Unscientific Evidence

5. The Expert and Unbalanced Evidence

6. The Expert’s Attacks on Colleagues

7. The Expert and Evidence beyond His Expertise

8. The Speculating Expert

9. The Expert and Casual Language (language that was loose and unscientific)

10. The Expert Who Misleads

Has the Goudge Inquiry Been a Success?

Public inquiries are not always considered a success and recommendations are not always accepted. Inquiries have been stated to have immediate effects—transformative and direct, take longer when they are transformative but diffuse or have little or no effect—marginal and limited. Professor Lorne Sossin has described the Goudge Inquiry as transformative and direct (20). He states that on virtually all measures, policy change occurred as a direct consequence of the Inquiry. The Inquiry resulted in statutory and administrative changes quickly.

One area where public inquiries have had no significant effect has been on the federal government and miscarriages of justice, despite this also being a central theme of the Goudge Inquiry. The Federal Government has full control over the criminal law of Canada and has declined to introduce a Criminal Cases Review Commission, which has been instituted in the UK and has been called for both within and outside of Canadian public inquiries.

One area that received some focus during the inquiry research and policy round table discussion, which were conducted as learning and information sessions, was the type of system that forensic pathology should be conducted in. Ontario remains a coroner system requiring the coroner to be a licenced physician. One senior forensic pathologist, who worked as a medical examiner in the USA and who was an expert during the policy hearings, recommended that the coroner’s system be replaced with a forensic pathology led medical examiner system. This would have involved a substantial change in practice, though legislatively it would not have required any change as the Coroner’s Act requires a medical practitioner system. However, such a change would have been beyond the Commission’s mandate. The response of improving the delivery and oversight of forensic pathology within the preexisting coroner system was more likely to be enacted by the government and the Commissioner has been described as focused on implementation. As such his recommendations have been described by Professor Soissin as measured, realistic, and proportionate.

The central figures in the Inquiry were Charles Smith and the then Chief Coroner, Dr. Young and the then Deputy Chief Coroner, Dr. Cairns. The failings of Charles Smith were significant and had devastating effects upon many individuals. But the Inquiry also found that there was a willful neglect of the oversight of forensic pathology, which was central to the establishment of the Ontario Forensic Pathology Service (OFPS). The Chief Coroner had sought to protect the reputation of the Office, rather than concern that individuals or the public interest may have already been harmed. Justice Goudge stated the Chief Coroner, Dr. Young had to bear the ultimate responsibility for the failure of oversight.

The Inquiry identified significant steps that had already been made in the improvement of the delivery of forensic pathology and singled out the leadership of the current Chief Forensic Pathologist. Change requires that key actors accept the changes and develop the system. This has been done under his leadership of the OFPS. Justice Goudge said the most important and fundamental challenge was to create a truly professional OFPS. That service is now entering its second decade. Regular reports are produced by the OFPS and available to the public. It has been subject to further external reviews. A review by KPMG and quoted by the long-term care inquiry (The Wettlaufer Inquiry) stated that the OFPS was functioning at a very effective level.

Developments in Forensic Pathology in Ontario to Prevent Miscarriages of Justice

Contemporaneously with the establishment of the Ontario Forensic Pathology Service, the University of Toronto established a residency training program in Forensic Pathology, with the residents based with the OFPS, and recognized by the Royal College of Physicians of Canada. Although the Royal College recognized forensic pathology in 2005, no recognized training program existed until the University of Toronto established their residency program. Residency takes one year (the equivalent of fellowship training in the USA) and must follow a Royal College approved five-year residency training program in either anatomical pathology (AP) or general Pathology (GP), the latter equivalent to clinical pathology/anatomical pathology (CP/AP) training in the USA. Candidates must be Fellows of the Royal College and therefore exams must be passed in AP or GP before the forensic pathology exams can be taken. Exams conducted by the Royal College were first held in 2009. Currently there are training programs in Toronto, Ottawa, and in Alberta with Winnipeg also recently recognized as a training center for forensic pathology.

The model of a “hub and spoke” structure with a central forensic pathology unit in Toronto, with regional units in large population centers in Ontario continues and has been strengthened. A register of qualified pathologists has been established and it is a requirement of Ontario’s Coroner’s Act that a person conducting a postmortem examination under coroner’s warrant must be so registered. The register is available to the public.

Since establishment of the OFPS, the number of qualified forensic pathologists has significantly increased and people conducting criminally suspicious deaths are now all registered as forensic pathologists (21). All new people certified as forensic pathologists in Ontario must have undergone training and passed the appropriate exams, typically the Royal College of Physicians of Canada examination, but with American Boards in Forensic Pathology also accepted. With the changing specialism in anatomical pathology, most medicolegal autopsies are conducted in the Forensic Pathology units by qualified forensic pathologists, a trend that is unlikely to be reversed. However Anatomical Pathologists continue to provide medicolegal autopsy services as the geographic realities of Ontario and the difficulties of establishing forensic pathology units in some areas prevent a purely forensic pathology delivered service.

Being a registered pathologist in the Ontario system means there is monitoring of the practice of each person on the register. All suspicious deaths are subject to peer review by a second forensic pathologist, typically from another unit. Where there is a suspicious pediatric case, such as those with injuries or evidence of neglect, the case is reviewed by a committee that includes experienced forensic pathologists and child abuse pediatricians. A second separate committee examines complex cases, such as deaths following interactions with police officers where there has been a struggle and/or deployment of devices or pepper spray. The committees are headed by a senior forensic pathologist and the roles are rotated.

In all the forensic pathology units, as well as all suspicious deaths, every tenth nonsuspicious case is subject to quality assurance review by another forensic pathologist, as are cases where the cause of death is undetermined (excluding decomposed bodies). As nonforensically trained anatomical pathologists still do nonsuspicious deaths, 100% of their cases are subject to review by a forensic pathologist. As well as autopsies there is an annual review of the testimony of each forensic pathologist using official court transcripts.

Everyone forensic pathologist is reviewed, including the Chief Forensic Pathologist, and if necessary a case can be sent outside the Province for other forensic pathologists to conduct reviews, including cases conducted by the Chief Forensic Pathologist. That way objective independent review is seen to be conducted. Where there are challenges to a case, the ethos is for discussion and co-operation rather than confrontation. It is recognized that the original pathologist must give the evidence, but peer reviews are disclosed as part of the autopsy report.

Where concerns about a practitioner are raised, there is a Credentials Committee that examines the concerns, independent of the Chief Forensic Pathologist. Concerns about the Chief Forensic Pathologist (and Chief Coroner) can be referred to the Death Investigation Oversight Committee. The aim of the OFPS is for a culture of remediation with open transparency for the work conducted.

In the system, throughout the province, teaching and training of residents in anatomical pathology training programs is conducted and there are now two accredited training programs in forensic pathology in Ontario. Research and other academic activities are encouraged in the system, the model of the OFPS being for service and academic work. The forensic pathology units are linked to Universities with medical schools with staff typically also holding academic appointments.

Conclusions

The damaging impact of the failure to understand the need for specialist training in forensic pathology to conduct autopsies to the highest standards in a medically led medicolegal death investigation was only corrected when a light was shone on the Coroner’s system in Ontario by an experienced Judge. The result of his inquiry was a transformative report that led to the establishment of the Ontario Forensic Pathology Service, the training of forensic pathologists in accredited programs, and the development of robust and quality driven service. The service is now in its second decade. Not all public inquiries are successful, but the Goudge report was. As well as death investigation in Ontario, Mr. Justice Goudge’s inquiry has had important effects on the Criminal justice system across Canada. The report is also the most detailed analysis of forensic pathology in a common law criminal justice system.

The author was an expert to the Goudge Inquiry and a registered forensic pathologists with the OFPS.

AUTHORS

Christopher M. Milroy MBChB, MD, LLB, LLM, FRCPath, FRCPC, FFFLM, DMJ, Eastern Ontario Forensic Pathology Unit of the Ontario Forensic Pathology Service; Division of Anatomical Pathology, The Ottawa Hospital and the Department of Pathology and Laboratory Medicine, University of Ottawa

Role: A,B,C,D,E,1