Upon Commencing at 10:00 A.M
FRIDAY, OCTOBER 16th, 1998
--- Upon commencing at 10:00 a.m.
--- Accused present
--- In the absence of the jury
THE COURT: Yes?
MS. MULLIGAN: Good morning, Your Honour.
THE COURT: Good morning.
MS. MULLIGAN: We just wanted to mention I just got some notes of Doctor Johnston's. I don't perceive stalling his testimony here this morning, it just may be that after he testifies in chief I may need a few moments to look it over and discuss it with co-counsel.
THE COURT: All right.
MR. MORRIS: Obviously me as well.
MS. BAIR: I just got them this morning myself, Your Honour, and I read them in about two and a half minutes and they seem to be exactly what is contained in his report.
THE COURT: Reading takes two and a half minutes. Strategy takes a little longer. I wouldn't say that the Crown's strategy means are probably short either, to be fair, so there you go.
MS. BAIR: You might be surprised. We're not smart enough to strategize.
Your Honour, I was saying that only to be help- ful in that it's not likely to take a long time to recognize the identity of content.
THE COURT: All right. Bring in the jury.
--- Upon resuming in the presence of the jury
THE REGISTRAR: Are counsel satisfied that all members of the jury are present?
MS. BAIR: Yes. Thank you.
MS. MULLIGAN: Yes. Thank you.
MR. MORRIS: Yes. Thank you.
THE COURT: Ms. Bair?
MS. BAIR: Thank you, Your Honour.
I call Doctor Johnston, please.
BRIAN GEOFFREY JOHNSTON, sworn
EXAMINATION-IN-CHIEF BY MS. BAIR:
Q. Good morning, Doctor Johnston.
A. Good morning.
Q. I understand, sir, that your current position is head of the Eastern Ontario Regional Forensic Pathology Unit at the Ottawa General Hospital; is that correct?
A. That's correct.
Q. And therefore you're a duly qualified medical practitioner?
A. That's correct.
Q. And you're licensed to practice in the province of Ontario.
A. That's correct.
MS. BAIR: At this point, Your Honour, I'll be seeking to run through the qualifications of the doctor in an effort to have him qualified as an expert in general and forensic pathology.
THE COURT: All right.
MS. BAIR:
Q. If we could start going through your educa- tional background, sir.
I understand that, first of all, you're native to Winnipeg, Manitoba; is that correct?
A. That's correct.
Q. And your high school was there?
A. No, ---
Q.No?
A.--- I went to school here in Ottawa.
Q. Okay. And you went to medical school in Ottawa?
A. That's correct.
Q. The University of Ottawa?
A.That's correct.
Q.And you received a medical degree in 1966.
A. Correct.
Q. And from there you went through a rotating internship at the Ottawa Civic Hospital?
A. Correct.
Q. I'm going to skip a few steps because we've got five pages to get through on qualifications.
You did a residency in General Surgery at the Ottawa Civic?
A. That's correct.
Q. And then a residency in General Pathology at the Ottawa Civic?
A. That's correct.
Q. Then in 1972 it says F.R.C.P.C., what's that?
A. Okay, after you finish training in pathology you write a college -- the Royal College of Physicians and
Surgeons exam to qualify you as a pathologist, so I passed the exam and was qualified as a general pathologist in 1972.
Q. And it looks then that you went through a rather rapid progression right from a medical degree into pathology immediately; is that right?
A. Well that's standard practice. After you do your postgraduate training and get your MD degree as a physician, then you do an internship and a residency in a particular specialty and in my case it was general pathology.
Q. So you chose general pathology right off the top, it's not ---
A.Well I started ---
Q.--- something you came to later.
A. --- with surgery. Actually I started with surgery, that's correct.
Q. I understand in 1972 then you went to Winnipeg where you became a staff pathologist; is that right?
A. That's correct.
Q. Just before we go through all of that, if we could go through some of the courses you've taken. It seems as though, well first you could tell us maybe I suppose, whether you have an obligation to stay current in your field.
A. I certain do and I try to attend one or two meetings a year.
Q. Meetings or courses or?
A. Both, annual meetings of forensic societies both American and in Canada. And also postgraduate medical edu- cation courses in forensic pathology, I try and attend those as well.
Q. I'm going to read off some of these on this list of continuing medical education courses. The most recent
being 1998 "Forensic Wound Ballistics", RCMP Summer Institute of Forensic Sciences Course in Ottawa.
A. That's correct.
Q. It sounds like it was this past summer.
A. That's right, it was at Carleton University.
Q. 1997 you took a course "Current Topics in Forensic Pathology" in Las Vegas, Nevada.
A. Yes, I did.
Q. 1996, and as I say I'm skipping, Regional Coroner's Pathologist Course in Toronto?
A. Correct.
Q. 1995 "Current Topics in Forensic Pathology" in Williamsburg, Virginia?
A. Correct.
Q. 1994, I take one from each year or two, Educational Course for Ontario Coroners and Forensic Pathologists in Etobicoke?
A. Correct.
Q. I seem to be hitting the Canadian ones but there are lots in the United States as we go through as well.
A. That's right.
Q. In fact the next one "Advanced Forensic Pathology" in Quantico, Virginia, is that the FBI Academy?
A. That's the FBI Academy, that's right.
Q. 1993 "Essentials in Forensic Pathology" in Rockville, Maryland?
A. Yes.
Q. And the year before the same course in Denver, Colorado?
A. Correct.
Q. 1992 "Controversies and Recent Advances in Surgical Pathology" in Florida.
A. Yes.
Q. Do you have a copy of your c.v. with you, sir? I can give you one here.
A. No, actually I don't. I think I gave you mine.
Q. You gave it to me this morning.
A.Thank you.
Q.We can follow along together. In 1989 and '91 the National Conference on Death and Injury in Wichita, Kansas?
A. Correct.
Q. A bunch a words I can't pronounce so we'll skip them. Annual Management Seminar, Seven Oaks and Riverside Hospitals?
A. Correct.
Q. Canadian Congress of Laboratory Medicine Annual Meetings in '84, '86, '88 and '89.
A. Right.
Q. Okay. We've already discussed your current appointment which is the head of the Eastern Ontario Regional Forensic Pathology Unit?
A. Correct.
Q. 1989, is that when you became an Assistant Professor?
A. Yes, to the present, including the present. It's current appointments.
Q. So you're still an Assistant Professor at the University of Ottawa, Faculty of Medicine, Department of Pathology and Laboratory Medicine.
A. That's correct.
Q. Past appointments now, 1990 to '94 you were the Director, what's MDS Laboratory?
A. It's a private lab, it's located in the professional building next to Riverside Hospital. I was also director of the labs at Riverside Hospital until 1994 when I moved to the General.
Q. To the layman, director of labs sounds like you do test tube things.
A. Well, I was qualified as a general pathologist and I was practising general pathology including forensics up until 1994 at which time I began to do full time forensic pathology.
Q. Okay. 1989 to '94 you were the Director of the Department of Laboratory Medicine at Riverside Hospital ---
A.Yes.
Q.--- in Ottawa.
A. That's right.
Q. And you say you were also doing pathology at that time.
A. That's right.
Q. Okay. 1987 to '89 before you went to the Riverside you were the Laboratory Director, Mall Medical Clinic in Winnipeg.
A. Yes. When I was in Winnipeg again I was the director of several private laboratories in Winnipeg.
Q. All right. And I see a sort of an overlapping directorship at the Department of Laboratory Medicine at Concordia General Hospital in Winnipeg.
A. Yes. When I was in Winnipeg I was the director at both the Seven Oaks Hospital and Concordia Hospi-
tals; they were joined together in a sort of a one type of administration for laboratories anyway.
Q. Okay. And also lab director at Unicity Laboratories in Winnipeg?
A. It's another private laboratory.
Q. We haven't been yelled at yet but we're about to because we're speaking over each other, so we're going to have to ---
A.I'm sorry.
Q.I'll watch myself.
It says also, sir, that between '84 and '89 you were a Consultant Pathologist for the Northwest Territories.
A. Correct.
Q. Okay. '77 to '89 an Assistant Professor at the Department of Pathology at the University of Manitoba?
A. That's correct.
Q. And Staff Pathologist '73 to '80 at Misericordia.
A. That's correct.
Q. Again in Winnipeg. We've already touched on your teaching experience. You've been an Assistant Professor since 1989. It says 1998 you're a lecturer in the "Role of the Pathologist in the Investigation of Fire-Related Deaths" at the Fire Marshall's Training Course.
A. Correct.
Q. Okay. 1997 you taught a course in "Death in Restraints: Custodial and Otherwise"?
A. Also here in Ottawa, that's right.
Q. And you made a 1996 platform presentation for the Society of Forensic Science in Hamilton.
A. Correct.
Q. 1995 you were a lecturer, that topic was "Sharp Force Injuries" in Etobicoke.
A. That's correct.
Q. You also have regular rotations, do you, at a hospital?
A. Yes, we have residents in training in pathology that rotate through the Forensic Unit at the General.
Q. And are they assigned to you, sir?
A. Well, they're assigned to me only because our Forensic Unit is actually a one full-time person unit, although we do have a half-time forensic pathologist as well.
Q. So you supervise how many senior pathology residents in a year?
A. We perhaps get one or two a year for a period of one or two months.
Q. And from 1994 to the present you've been an annual lecturer in forensic pathology to second and third year students at the Faculty of Law?
A. That's right.
Q. University of Ottawa?
A. That's right.
Q. Okay. 1994 to present monthly forensic pathology rounds for coroners, pathology residents, RCMP toxi- cologists and law enforcement personnel.
A. Correct.
Q. That's what we've just been discussing but we have others than just your residents.
A.M'hmm-hmm.
Q.You've been invited to be a panellist at various -- what will we say? -- annual meetings and ---
A. Just the 1994 one in Toronto.
Q. Okay.
A.In Etobicoke.
Q.And committee appointments, can you tell the jury about those?
A. Yes, they were more related to my former career in doing general pathology as part of lab administration.
Q. You, from '92 to '94, were on the Executive Advisory Committee of the University of Ottawa Department of Pathology and Laboratory Medicine?
A. That's correct.
Q. And it goes through a list of things at the Riverside. You've been busy there for a long time.
A. That's right.
Q. You've testified before, sir?
A. Many times.
Q. At all levels of court?
A. Pretty well, yes.
Q. At preliminary hearings and trials?
A. Correct.
Q. Have you testified at inquests?
A. Yes. Many.
Q. Have you always testified as a witness called by the Crown?
A. Not always. I have testified on a couple of occasions in Quebec representing the defence.
Q. Have you testified only in Ontario, sir?
A. No, the province of Manitoba and also the Northwest Territories.
Q. Okay. And you've got some papers and publi- cations to your credit as well.
A. Right.
Q. Okay. And about six, I see one alone and some others with other people; is that right?
A. That's correct. I think only the top two deal with sudden death and they're more related to forensics. My other publications are related to again lab administration work in my previous career, yes.
Q. Okay. You're a member of the American Academy of Forensic Sciences?
A. Correct.
Q. The Canadian Society of Forensic Science?
A. Yes.
Q. The Canadian Medical Association?
A. Yes.
Q. Ontario Medical Association, Manitoba Medi- cal Association?
A. Correct.
Q. College of Physicians and Surgeons of Ontario?
A. Correct.
Q. Canadian Association of Pathologists?
A. Yes.
Q. And Canadian Medical Protective Association?
A. Correct.
Q. You have been the Director, I think we already said that but is it from 1994 to the present?
A. That's correct.
Q. And you've been working as a pathologist for how many years?
A. Since 1972 when I qualified as a pathologist, so it would be about 27 years.
Q. And can you give us an estimate of the number of autopsies you've performed?
A. Probably between two thousand and three thousand something in that neighbourhood.
Q. Have they all been related to homicides, sir?
A. No, perhaps I've done maybe 150 or so, it's hard to be exactly sure, somewhere around 150 to 200 homicide autopsies.
Q. The Eastern Ontario Regional Forensic Pathology Unit where you've been the head since 1984, can you explain how many of those sorts of centres there are in the province?
A. Oh, there are only four established region- al forensic units: one at the chief coroner's office in Toronto, the Sick Children's Hospital in Toronto, McMaster Uni- versity in Hamilton and here are the formal forensic units that have been established already.
Q. And your territory, so to speak, covers what?
A. Eastern Ontario, which might be Hawkesbury to Pembroke to maybe Belleville, sort of that area.
MS. BAIR: Those are the questions that I have on the doctor's qualifications, Your Honour. I'm not sure if my friends wish to challenge.
MR. MORRIS: I have no questions. Thank you.
THE COURT: You have no questions on the quali- fications?
MS. MULLIGAN: No questions. Thank you.
THE COURT: All right.
MS. BAIR: My request then is that the Court qualify Doctor Johnston as an expert in general and forensic pathology.
THE COURT: Yes, it's so ordered.
Members of the jury, what that means is the doctor is entitled to express an opinion in the area of his expertise. Most witnesses of course we're not interested in the witness' opinions in general terms about things, subject to some very minor exceptions which we will deal when they arise, but an expert witness is entitled to give his opinion for the very simple reason that he gives his opinion in an area that might be helpful to the jury and to the trier of fact, an area in which it's an area of special competence which is required and special exper- ience. So since you as the triers of fact in this case do not have that experience, you're entitled to the doctor's opinion and he's entitled to give it unlike the ordinary witness.
All right.
MS. BAIR: Thank you, Your Honour.
EXAMINATION-IN-CHIEF BY MS. BAIR:
Q. Doctor Johnston, on the 19th of January of 1990 you were not the head of the Eastern Ontario Regional Forensic Pathology Unit, right?
A. No, I was at Riverside Hospital.
Q. You were the lab director there?
A. That's correct.
Q. And I understand, sir, that on that date, the 19th of January of 1990, you performed the postmortem examination on Michel Giroux; is that correct?
A. Correct.
Q. Did you know Doctor Stephen Silver at that time?
A. Yes, he was my he was another staff pathologist working in my department.
Q. Okay. And in essence you were his boss at that point?
A. That's correct.
Q. Doctor Stephen Silver I mentioned, the jury hasn't heard of him but I don't believe it's contentious, we all know there were two bodies in this case and Doctor Silver did the postmortem on one and you did the postmortem on Michel Giroux.
A. That's correct.
Q. Okay. Where was the postmortem on Mr. Giroux performed?
A. At the morgue in the Riverside Hospital.
Q. At the morgue. And when did it happen in terms of time of day?
A. About 10:30 in the morning I started Mr. Giroux.
Q. Do you recall how long the examination took?
A. I don't remember the completion time. Generally it would take maybe close to four hours in a more difficult case.
Q. Did you make a report as a result of your examination?
A. Yes, I did.
Q. How long is that report? Do you have it with you?
A. Yes. I don't know how many pages it would be.
Q. And you've counted off eight pages which seem to be a different type?
A. That's right, and my handwritten notes which correspond to typewritten copy, another three pages and a diagram.
Q. Three papers but they're twosided, so it's six pages?
A. Twosided. Six pages and a diagram page.
Q. Okay. So you have eight pages of a final report?
A. That's correct.
Q. You have six pages of notes and you have one page of diagram.
A. That's correct.
Q. Was that report all prepared at the same time, sir?
A. Yes.
Q. In between there were some other papers that we skipped over, you seem to have some reports sent to you. I'm not asking you to list them.
A. Oh, these are transcripts of previous preliminary hearings.
Q. No, I'm sorry.
A.Which reports?
Q.Between your eight pages in your report.
A. There were also reports from the RCMP Forensic Toxicology lab.
Q. Okay. So you got some reports back from them. Did those reports figure into your report?
A. Oh definitely, yes.
MS. BAIR: Your Honour, I'd request that if the doctor requires it he be permitted to make reference to the notes in the course of his testimony.
THE COURT: No problems with anybody? All right.
MR. MORRIS: No problem.
THE COURT: No problem. Thank you very much
MS. BAIR:
Q. While we're talking about reports, sir, is there currently a special protocol with respect to the release of pathologists' reports in relation to homicide cases?
A. Well, any findings from any medico-legal autopsy are reported directly to the coroner alone.
Q. Okay. And that's before they go to anyone else?
A. Before?
Q. They go to anyone else?
A. That's correct, yes.
Q. Can you tell us, sir, who was at the autop- sy with you on the 19th of January?
A. I don't have it recorded in my notes but it would be Doug Wilson, who is the morgue attendant, and I believe members of the Identification Unit of I'm not sure whether it's OPP or OttawaCarleton Regional because I didn't note it, and probably also Robin Thériault from RCMP Firearms.
Q. Okay. Why are those people there? Obviously the morgue attendant.
A. Oh, well in cases of homicide, the investi- gation of homicide is a team approach so other members of different forensic disciplines are often there at the autopsy to help with the collection, preservation and transportation of evidence, trace and otherwise, that might be recovered from the body. The Identification Unit is there to maintain continuity with the exhibits and those would be -- the people I would want to have there would be the Identification Unit officers and also experts from RCMP Firearms or another ballistics firearms expert of some kind.
Q. Okay. Did you receive any information in advance of performing your examination from any of those people who were in attendance?
A. No. The only information I get for doing an autopsy in advance is a warrant from the coroner, and in this case it was Doctor Corbeil who sent me a piece of paper indi- cating "shotgun blast, pronounced dead 1900 hours, rigor mortis" and to do certain tests, drugs and alcohol, and that was all I received from Doctor Corbeil. And certainly there would be other pieces of information at the time of autopsy that might help with putting the body in context of the scene where the body was found.