Document Type

Article

Publication Date

2009

Keywords

Pediatric forensic pathology evidence, child and infant death, investigation, criminal evidence

Abstract

Pediatric forensic pathology evidence is a critical component of the investigation and prosecution of child and infant death. Several years ago, concerns arose over the work of Dr. Charles Smith, then a renowned expert in the field. The Office of the Chief Coroner for Ontario ("The Coroner") then commissioned an external review of his work on 45 cases. For each case where his findings or conclusions were disputed and the accused had not been acquitted, the defence counsel was given the corresponding reports. In response to the review, the Government of Ontario commissioned a public inquiry led by Justice Stephen Goudge. While the report by Commissioner Goudge strongly endorsed the performance of quality assurance, it did not specifically address whether such quality assurance must, or should, be disclosed to the defence. These events raised three critical questions for criminal cases involving pediatric forensic pathology: (1) Is there an obligation to perform quality assurance, such as external review? (2) Is there a corresponding obligation to disclose the results? (3) Does that obligation include all of the pathologist's work, or only his or her work in that case? To suggest answers to these questions, this paper examines the jurisprudence governing the disclosure and production of evidence in criminal trials, relating this case law to the particular context of pediatric forensic pathology. While the Supreme Court of Canada's well-known holding in R. v. Stinchcombe clearly requires "the Crown" to disclose the records that it possesses in a criminal investigation to the defendant for the purpose of his or her trial, there is uncertainty in the literature and the Courts of Appeal over which government actors comprise "the Crown." Specifically, government actors other than the prosecuting Crown attorney's office and the investigating police force may be considered to be "third parties" to the investigation-in which case the acquisition of their records by the defence would be governed by the more restrictive standard established in R. v. O'Connor. This article uses the issue of quality assurance in pediatric forensic pathology to critically re-examine the meaning of "the Crown" for the purpose of disclosure. First the author discusses the nature of pediatric forensic pathology and the Coroner's obligation to perform quality assurance. The author then outlines the disclosure regime of Stinchcombe and the production regime of O'Connor, and the differing obligations to create and preserve records under those two regimes. On this foundation, the author then provides an overview of the academic literature and case law that consider the question of which government actors comprise "the Crown," and establishes a purposive framework for the meaning of "the Crown." Next, this framework is applied to the Coroner's work in the area of pediatric forensic pathology in order to demonstrate that the more inclusive Stinchcombe standard should apply to the Coroner. Finally, the author discusses what this standard of disclosure would require in practical terms. He argues that historical quality assurance records – that is, records relating to the work of the investigating pediatric forensic pathologist on previous cases, not just the instant case – are disclosable according the standard established in Stinchcombe.

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