Part Two; Closing Submissions; End Surreptitious Police Surveillance Of Meetings Between Grieving Parents And Pathologists Or Coroners;

It seems pretty obvious that the days after the sudden loss of a child must be among the most torturous that a parent can experience.

It was therefore shocking to learn during the Goudge Inquiry that Dr. Charles Smith had agreed with the Barrie, Ontario police force to meet a bereaved mother in her home to report on his investigation of the death of her child - knowing that their conversation would be surreptitiously recorded by police.

It is impossible to know whether this was an isolated incident - or whether other pathologists and coroner's - supposedly independent -also see themselves as an arm of the police investigation into an infant's death.

For that reason, lawyer Suzan Fraser's recommendation that grieving parents should be spared this intrusive surveillance - on behalf of Defence For Children International Canada - is most welcome.

Fraser notes in a closing submissions filed with the Goudge Inquiry that whether they are under suspicion or not, "parents and guardians should be entitled to receive information about the death of their child, including the post-mortem report in a caring and compassionate environment free from police surveillance and judgment."

"If the opportunity is lost to catch an incriminating statement, so be it," she adds. "There are some forms of police action that ought not to be countenanced."

I personally couldn't agree more - and I hope that Commissioner Goudge will underscore the importance of pathologists and coroner's acting independently of the police - and not as their agents - when he pens his report, now due in September.

For those who have not read it, the earlier posting ran as follows on February 1, 2008 under the heading "Smith: A loyal member of the prosecution team to the end."

"At times it is good to get right to the point" the posting began.

"Dr. Smith has admitted that he saw himself as a member of the prosecution team - and that his role was to help the Crown win the case, "in the 80's," it continued.

However, on Wednesday morning the Goudge Inquiry heard startling evidence that he once agreed to go to Barrie, Ontario to meet with the mother of a deceased child - knowing that the conversation would be recorded by bugs which had been surreptitiously planted in her home by the police.

This was in 1996;

It is also noteworthy that Smith admitted in cross-examination regarded himself as a member of the prosecution team in "Sharon's case" where he testified under cross-examination at the mother's preliminary hearing that it was "absolutely wrong" to hypothesize a dog attack.

(The police theory was that Sharon had 81-wounds inflicted by knives or scissors - and that she had not been attacked by a Pit Bull as defence experts insisted - which later proved to be the case).

"I believe I could well have slipped into an advocacy role here," Dr. Smith said. "I believe that I knew by then that I wasn't to be an advocate ..."

This was in 1998;

Dr. Smith gave this evidence as an "advocate" for the prosecution, seven years after he was appointed Director of the Ontario Forensic Pediatric Pathology Unit at the Hospital For Sick Children in Toronto - and just three years before his name was removed from the roster for performing forensic autopsies.

It was near the end of his career - far from the beginning;

The evidence indicates that Dr. Smith - or "Mr. Smith" as Lawyer James Lockyer, representing nine families insisted on calling him yesterday - saw himself as a loyal member of the prosecution team right to the end.

Back to the Barrie case:

Smith's cooperation in the police investigation is documented in an affidavit by Detective Sergeant Mark Holden which filed as an exhibit;

Here is the complete affidavit - dated January 28, 2008;

"1: I am a staff Sergeant of the Barrie Police Service. I was involved in the investigation into the death of X, who was a minor. I believe that revealing the name of the minor and his mother could jeopardize an on-going investigation. I have knowledge of the matters deposed to in my affidavit.

2: On Sept 4, 1996, the Ontario Provincial Police (O.P.P) intercepted a telephone conversation between Dr. Smith and X’s mother pursuant to an authorization granted under Part VI of the Criminal Code of Canada. Dep. Insp. McNeil of the O.P.P. learned from the conversation that Dr Smith intended to meet with X’s mother at her home in the Barrie area to discuss with her the results of the report on his post-mortem examination on X. Det. Insp. McNeil knew that listening devices installed in the house, also pursuant to a Part VI application, would likely intercept this conversation.

3: Dep. Insp. McNeil subsequently met with members of the Barrie Police Service including me, to discuss the situation. Det. Insp. McNeil telephoned Dr. Smith and advised him that the listening devices installed in the house would likely intercept his conversations with X’s mother.

4: Dr. Smith agreed to meet with the Barrie Police Service and Det. Insp. McNeil and he did so on Sept. 5, 1996, the day he was scheduled to meet with X’s mother. The meeting took place at the Barrie Police Service police station and lasted approximately 20 minutes. During the meeting, the Barrie Police and Det, Insp. McNeil s did not direct Dr. Smith in in any way as to how to conduct the meeting with X’s mother and did not ask him to solicit any information from her. At the conclusion of the meeting with Barrie police and Det. Insp. McNeil, Dr. Smith went to the house of X’s mother and met with her.

5: Following that meeting, Dr. Smith met with representatives of the Barrie Police Service and Det, Insp. McNeil over lunch to discuss his meeting with X's mother. Dr. Smith explained that she had a number of questions about his findings and that he answered her questions arising from his report on post-mortem examination.

6: The Barrie Police officers recall that Dr. Smith expressed a view on X's mother's demeanour when she was discussing her child's death. Dr. Smith said, "It was like talking to a load of gravel." The officers understood this to mean that Dr. Smith was commenting on the inappropriate and flat affect of X's mother during that meeting. The Barrie police do not recall that Dr. Smith expressed a position during the lunch meetings to whether or not his pathology evidence supported X's mother's culpability or not.

7: I recall that there were two case conferences involving Dr. Cairns and Dr. Smith, which were held on April 17, 1996, and May 30, 1996. However at these meetings there was no discussion of any surveillance of X's mother.

8: I do not recall any further meetings with Dr. Smith following his meeting with X's mother.

9: The Barrie police have complied with S. 196 of the Criminal Code and have provided X's mother with written notification of the authorization of the interception."

A few comments:

Doctor Smith acknowledged in cross-examination that his interview with the mother in these circumstances was inappropriate but told the Inquiry that he had been asked to attend the meeting by Deputy Chief Coroner Dr. James Cairns;

In fairness to Dr. Cairns, by now we are well aware that just because Dr. Smith said this under oath does not mean that this is true. (We don't have Dr. Cairns side of the story);

However it is worth pointing out that this may not be an isolated incident in Ontario.

An earlier posting in the context of "Tiffani's case" contained a note written by a prosecutor which read: "Our file contains... a lot of information involving the initial coroner's investigation, including videotaped statements from both accused taken by the Regional Coroner Dr. (Benoit) Bechard and the police without caution, warning, or right to counsel."

Next Posting: Part Three; Closing Submissions; Children's Aid Society Investigations Into Infant Deaths and Miscarriages Of Justice;

Harold Levy...hlevy15@gmail.com;