"THE FATHER CONSISTENTLY MAINTAINED THAT HE DID NOT CAUSE THE DEATH OF EITHER TWIN, BUT HE DID ADMIT WHEN CROSS-EXAMINED THAT "HE MUST BELIEVE THAT(HIS DAUGHTER'S) CAUSE OF DEATH WAS AN INJURY TO HER HEAD BECAUSE A QUALIFIED SPECIALIST, DR. SMITH, SAID IT WAS SO."
EXCERPT FROM RESEARCH PAPER PREPARED FOR GOUDGE INQUIRY BY PROFESSORS NICHOLAS BALA AND NICO TROCME;
Three child protection cases in which Dr. Charles Smith gave evidence about the cause of death of a sibling are discuses in a research paper commissioned by the Goudge Inquiry.
The paper, by professors Nicholas Bala and Nico Trocme, is called "Child Protection Issues and Pediatric Forensic Pathology" and has been posted on the Inquiry's Web page.
This valuable paper deals with the brutal collateral damage caused to families by flawed forensic pediatric pathology - and illustrates how "Dr. Smith's "impressive and extensive credentials" were put to work in the family court context.
THE FIRST CASE:
Dr. Smith’s testimony was of central importance in the 1995 case of Children’s Aid Society of Haldimand-Norfolk v. D.C., which involved a newborn child.
Ten years earlier, the child’s father had been sentenced to five years in prison for manslaughter of one of his twin children from a previous relationship, both of whom had died suddenly in infancy.
Dr. Smith testified that one of the twins had died of a head injury and the other of either a head injury or asphyxiation.
Dr. Smith’s testimony was the principal evidence at trial that the twins’ deaths were not of natural causes.
Other witnesses at the 1995 child protection hearing testified as to the father’s gentle nature, and the mother of the child in question insisted that her husband was innocent.
The father consistently maintained that he did not cause the death of either twin, but did admit when cross-examined that “he must believe that [his daughter’s] cause of death was an injury to her head because a qualified specialist, Dr. Smith, said it was so.
On appeal, the child at issue in the 1995 trial was removed from his parents’ care; while the mother was permitted access to the child, the father was not.
THE SECOND CASE:
In 1996, Dr. Smith provided expert medical testimony in Children’s Aid Society of Kingston v. M.T.
This case concerned two children whose sibling had died before either was born, a death that, after an autopsy performed close to the time of death, was classified as Sudden Infant Death Syndrome.
After the two later born children were abused, Dr. Smith performed an examination of the exhumed body of the first-born child and found skull fractures and a fractured femur. ...
On appeal, a new assessment of the father was done by a child abuse expert who said the father “showed evidence of the possibility of unusual and violent behavior...”
Dr Smith “expressed great concern about the credibility of the first autopsy” and concluded that the child did not die of natural causes, but perhaps of suffocation or his head injuries.
The judge noted Dr. Smith’s “impressive and extensive credentials” and ruled that the children should be placed in the care of their grandparents.
In this case, despite the apparently considerable weight accorded to Dr. Smith’s opinion by the judge, he was not alone in his conclusions about the child’s cause of death;
The parents themselves had also admitted that they had failed to care properly for their children, and the father, who testified under the protection of the Canada Evidence Act, admitted to a serious assault upon the deceased infant.
THE THIRD CASE:
In Children’s Aid Society of Peel v. L.P., a 2003 trial regarding removal of two young children from the custody of their mother, the agency relied on testimony given by Dr. Smith about the deaths of two of their three older siblings.
When the mother’s first child died at five months of age in 1993, the death was determined by the original pathologist as “sudden infant death syndrome.”
A police investigation into the death of the first child resulted in Dr. Smith being consulted by the police.
He concluded that child abuse could not be proven as the cause of death,
and that the death should be classified, not as Sudden Infant Death Syndrome, but as Sudden unexplained Death (SUD).
After the mother’s second child died in 1997 in suspicious circumstances, an autopsy concluded that the cause of death was “undetermined” but not consistent with the mother’s explanation.
Dr. Smith performed a second examination and also concluded “in careful words” that no cause of death could be found, though the doctor stated that the cause of death had not been found but was “consistent with asphyxial mechanism” [suffocation].
The mother was charged and found guilty by a jury of manslaughter;
the jury was likely influenced not only by the expert evidence, but by the mother’s changing accounts of the death of her child.
The mother’s third child was placed in the care of his father, and three children born subsequently were apprehended at birth and made permanent wards.
There are some eerie resemblances in these cases to some of the criminal cases that are being reviewed by the Goudge Inquiry.
First, Dr. Smith's reputation as an expert forensic pathologist - which we now know did not reflect his actual training and ability - were a powerful force in the courtroom.
Second, as illustrated in the first case, Dr. Smith was often the only witness in the case to testify that the death was not due to natural causes; and,
Third, Dr. Smith could cast an opinion in such a way as to point to the parents responsibility to the death - even where he could not specify the cause of death - as in the third case, where Bala and Trocme report: "Dr. Smith performed a second examination and also concluded “in careful words” that no cause of death could be found, though the doctor stated that the cause of death had not been found but was “consistent with asphyxial mechanism” [suffocation].