"THIS WAS A MAN WITH NO RECORD -- A NEW IMMIGRANT TO THIS COUNTRY, A WIFE WITH A BRAIN TUMOUR, A JOB. HE WAS A CONTRIBUTING MEMBER OF SOCIETY, AND ALL OF THE SUDDEN AN ATOMIC BOMB GOES OFF IN HIS LIFE -- MURDER 2. YOU HAVE TO TELL HIM BECAUSE THEY ALWAYS ASK, WHAT'S THE PENALTY, AND YOU SAY, LIFE WITH A MINIMUM PENALTY OF TEN (10) YEARS -- TEN (10) YEARS. HE WOULD HAVE GOTTEN OUT OF JAIL HAD HE
GOTTEN TEN (10) YEARS, AND IF THE TRIAL HAD TAKEN TWO (2) YEARS, HE'S JUST BE OUT NOW FOR FOUR (4) YEARS, AND HIS WHOLE LIFE WOULD BE SHATTERED. NOW, I -- I SEE IN THESE NOTES THAT I'VE BEEN GIVEN FOR THE FIRST TIME TODAY, THE MEETING JANUARY 30TH OF 1992, THE WORDS "DAMAGE CONTROL" APPEAR DEALING WITH THE CASE FROM MR. JUSTICE DUNN. I CAN'T MAKE A CONNECTION BETWEEN THAT MEETING AND WHAT HAPPENED IN MY CASE, EXCEPT THAT IT HAPPENED JUST A FEW WEEKS LATER OUT OF THE SAME OFFICE. I'M STILL SHOCKED."
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LAWYER DAVID GORRELL IN RESPONSE TO QUESTIONS POSED IN CROSS-EXAMINATION BY JAMES LOCKYER;
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One of the most shocking revelations from the Goudge Inquiry is Dinesh Kumar's lawyer's evidence that he was not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.
As we have seen in many previous posts, this decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN team.
As will be seen towards the end of this post, a lack of access to this decision had dire consequences for Mr. Kumar which he bears to this day.
By was of background information, here is a post I ran on Thursday, January 10, 2008, under the heading "Damage Control And Lost Opportunity: The Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) Unit;"
It describes how the Hospital for Sick Children resorted to "damage control" rather than to dissecting Dunn's decision in order to see what they could learn from it in order to avoid future debacles.
I did not realize the additional significance of the damage control meeting - the presence of a prosecutor - until I was later exposed to Gaurov's case at the inquiry.
Here is the earlier post as published:
""C.S. FEELS HE WAS MISUNDERSTOOD."
FROM HOSPITAL FOR SICK CHILDREN DAMAGE CONTROL DOCUMENT;
One would like to think of the Hospital For Sick Children as an institution that wants to learn from its mistakes.
This would especially apply to the serious medical errors made by Dr. Charles Smith and the hospital's Suspected Child Abuse and Neglect (SCAN) Unit that led to a 12-year old girl Timmins, Ontario girl being wrongfully charged with manslaughter.
However, a document has emerged at the Goudge inquiry which shows that the SCAN team reacted to Ontario Court Judge Judge Patrick Dunn's scathing criticisms of its work by holding a "damage control" meeting at which Smith defended his work, and Dunn was branded as "strange" and "from the bottom of the heap"
The handwritten document does not evidence any concern on the part of Smith or the members of the SCAN team that Judge Dunn's rejection of the hospital's opinion that baby Amber was a victim of "shaken-baby syndrome," as opposed to a fall down the stairs, may have been well-founded.
Nor does it evidence any desire to figure out what went wrong so that the risk of future wrongful prosecutions can be minimized.
Instead, after noting that the meeting was attended by the members of the SCAN team and several prosecutors, it goes on to describe Dunn as "strange" a member of the "family court" and "not used to criminal standards."
It goes on to express a concern that, "the judgment is likely to be passed around and (symbol for "therefore") damage control)";
(In retrospect, this prediction was right on the mark as Dunn's carefully structured judgement is resonating today at the core of the Goudge inquiry as one of the first alarm bells to sound over Smith's competence.)
But is is evident that the "damage control" ultimately failed as the hospital's failure to accept its responsibility and do something to remedy its mistakes is now available on the public record for all to see.
One of the most disturbing suggestions in the document is the comment that there is "no precedential value re medical evidence. Family court judge at bottom of heap. Error may be brought up in another case."
The reality is that if Dunn's criticisms - as set out in a beautifully structured decision - had been heeded back in 1991, so many other individuals would have been spared the torment of being wrongfully accused of killing their beloved children.
Instead, the consensus of the meeting appears to be that it is, "acceptable to say we disagree with judge's judgment."
The notes indicated that Smith defended his opinion in the case on the basis that "our standard is higher than theirs" - (an apparent reference to the large number of U.S. experts called by the defence) - "but still has to be held up to a higher standard."
He also attempts to deflect criticism from himself by saying that the case involved an "outside opinion" and that he "relied on police photos."
"C.S. feels he was misunderstood," the anonymous minute-taker wrote.
This is typical of Dr. Charles Randal Smith.
Evidence called at the Inquiry indicates that even his defenders at the highest levels of the Chief Coroner's Office observed toward the end of his career at the hospital that he was incapable of accepting responsibility for his actions and tended to blame others for his own mistakes.
During his questioning yesterday of Dr. Dirk Huyer, former head of the SCAN team and Dr. Katy Driver, who played a prominent role for that team in Amber's case, lawyer Louis Sokolov, who represents the Association in Defence of the Wrongly Convicted, (AIDWYC) suggested that the Hospital's damage control meeting represented, "a lost opportunity."
He sure got that right.
(See previous posting: "A glimmer of understanding: Part Three; A dangerous mix; Dr. Charles Smith and the Hospital For Sick Children SCAN team.)
Posted by Harold levy at Thursday, January 10, 2008;"
Goudge Inquiry Counsel Mark Sandler twigged to the fact that the prosecutor who was present at the damage control meeting played an active role in the Kumar investigation - just several weeks later;
Here is Sandler's examination of David Gorrell, Kumar's lawyer, on this connection:
(Bear with me: I prefer to give full stretched of evidence rather than to risk inadvertently distorting the substance through editing);
CONTINUED BY MR. MARK SANDLER:
MR. MARK SANDLER: Thank you. Mr. Gorrell, we know from the materials that have been filed here that -- that Gaurov died in Toronto on March the 20th, 1992, at the age of five (5) weeks. Due to suspicions about his death, his older brother was apprehended by CAS on that same date. We also know that on June the 16th of 1992, the report of post-mortem examination prepared by Dr. Smith was issued. I'm going to take you to the overview report if I may, which is at Tab 1 of your materials. And if you'd go to PFP143828, at paragraph 59, and you'll
see paragraph 59 is at page 32 of the overview report.
MR. DAVID GORRELL: Thank you.
MR. MARK SANDLER: And you'll see that on June the 26th of 1992, there was a meeting involving Dr. Smith, Constable Line, Detective Rolf Prisor, and -- Prisor, and Crown counsel, Mary Hall and Sandra Kingston. Just stopping there for a -- for a moment. First of all, what was Ms. Hall's position back in June
of 1992, as you understand it?
MR. DAVID GORRELL: I believe she was the -- either a Bureau Chief, or a Crown attorney, an independent Crown attorney. I'm not sure if Scarborough had been hived off yet, and made into a -- a jurisdiction for a separate Crown. But she was the head person. (Blogster's Note: Prosecutor Hall did not testify at the Inquiry. Her side of the story is not represented in this post.)
MR. MARK SANDLER: And were you aware of what, if any, role she played in the Gaurov case?
MR. DAVID GORRELL: Well, she would obviously supervise. She did participate in the -- in a judicial pretrial that we had on October 22nd of 1992, but that was simply because the assigned Crown, I believe, was not available.
MR. MARK SANDLER: And that was Ms. Koehl?
MR. DAVID GORRELL: Ms. Koehl, yes.
MR. MARK SANDLER: And you see from the overview report that that meeting involving the police and Crown counsel and Dr. Smith took place on June the 26th, and the overview report reflects that, according to a police report, Dr. Smith confirmed his diagnosis of Shaken Baby Syndrome, and added that the injuries probably resulted from continuous shaking as opposed to a single violent shake. We also know, Mr. Gorrell, that on June the 29th of 1992, Gaurov's father was arrested for second degree murder, some three (3) days later.
MR. DAVID GORRELL: Yes.
MR. MARK SANDLER: And the bail hearing took place on July the 10th -
MR. DAVID GORRELL: Yes.
MR. MARK SANDLER: -- and were you involved in the bail hearing?
MR. DAVID GORRELL: I became involved on July 2nd. The case first went to Dhamen Kissoon -- K-I- S-S-O-O-N, who had gone to the bar in 1989, and he retained me to lead on the defence. And I became involved on June 30th. And we worked on preparing the necessary affidavits and so on for the bail hearing from June 30th on.
MR. MARK SANDLER: All right.
MR. DAVID GORRELL: Until July 10th.
MR. MARK SANDLER: And we know from the materials that have been filed that the Crown consented to the release of your client on bail, pending trial. Am I right?
MR. DAVID GORRELL: Yes.
MR. MARK SANDLER: And I want to ask you about a conversation that your dockets reflect took place with Rita Koehl on the same date of the bail hearing, June -- July the 10th.
MR. DAVID GORRELL: Yes.
MR. MARK SANDLER: Tell us what transpired.
MR. DAVID GORRELL: This is a -- a case that's sixteen (16) years ago, and therefore, I'm relying heavily on the notes that were found in Mr. Kissoon's file. My own file isn't -- is no longer available. According to the dockets and the notes that I have here, on the day of the bail hearing, Ms.
Koehl, with Sergeant Prisor, I think, present, discussed with me the possibility of a resolution by way of plea to something possibly for no time.
MR. MARK SANDLER: All right. And how did you react to the fact that on a murder case, the Crown had initiated a discussion with you that involved a
potential plea for -- for no time?
MR. DAVID GORRELL: I was surprised.
MR. MARK SANDLER: And did you have any explana -- or was any explanation given to you as to why the Crown was taking that position as -- that early and at that stage in the proceedings?
MR. DAVID GORRELL: Not that I recall, and I would not have asked. You don't look a gift horse in the mouth.
MR. MARK SANDLER: All right. And similarly, I see that, as you've indicated, there was a consent to your client's release on bail, pending trial.
MR. DAVID GORRELL: Yes.
MR. MARK SANDLER: Was that in your experience usual for a murder case?
MR. DAVID GORRELL: John would be better to ask. I haven't done nearly as many as he has, but you can get consent releases on murders, and I think this would have been a case where you could have.
MR. MARK SANDLER: All right. Now, just seeing what, if anything, we can figure out about -- about why the Crown was motivated to proceed in the way it did. I want to ask you about something that you may or may not know about, and that is, we've heard some evidence here, Mr. Gorrell, that on January -- in January of 1992, that same year -- a conference -- a case conference was conducted at the Hospital for Sick Children in connection with the Amber case, and it arose out of the comments that Justice Dunn had made about the Hospital for Sick Children witnesses, including Dr. Smith, at -- at that trial, and we also know that in January of 1992, Ms. Hall and Ms. Kingston participated in that conference.
Two (2) questions arising out of that. Did either Ms. Hall or Ms. Kingston, or anyone else from the Crown's office have any discussions with you about the Amber case and its impact upon the Gaurov case?
MR. DAVID GORRELL: No.
MR. MARK SANDLER: Were you aware that -- that the Crowns, including Ms. Hall, had participated in a case conference in connection with the Amber case before the Gaurov case had taken place?
MR. DAVID GORRELL: No.
MR. MARK SANDLER: All right.
MR. DAVID GORRELL: All right, let me rephrase that. I know that they met again, I think, on June the 26th about this case, about the -- the Gaurov case, but I was unaware of this meeting. I have the notes in front of me here. I've seen them today for the first time. I was unaware of this meeting on January 30th, 1992.
MR. MARK SANDLER: All right. And you've made reference to -- to the meeting that took place here and -- and I've made reference to the Crown, so just taking you to page 32, paragraph 59, that's the reference that I took you to a little bit earlier of the meeting that took place involving Dr. Smith, the police, Ms. Hall, and Ms. Kingston. Am I right?
MR. DAVID GORRELL: Yes.
MR. MARK SANDLER: And were you aware that -- that that conference had taken place prior to the laying of the charges?
MR. DAVID GORRELL: I don't think so. It's been a long time ago, but I don't think I was aware of that meeting, and I don't think I had the police notes of it. I do have the original disclosure here from 1992, and the summary that is -- is available in these materials is not in that disclosure.
MR. MARK SANDLER: Okay, and leaving aside your awareness of the June 26th, 1992 meeting, you earlier indicated that you were the one that actually
gave Mr. Struthers a copy of the Amber decision, and this would be sometime later on.
MR. DAVID GORRELL: Yes.
MR. MARK SANDLER: Were you even aware of the Amber decision back in June of 1992 or during the currency of your involvement in the Gaurov file?
MR. DAVID GORRELL: No, I was not.
MR. MARK SANDLER: Was it something that you would have been like -- that you would have liked to have been aware of?
MR. DAVID GORRELL: Oh, yes;"
As the following transcript indicates, lawyer James Lockyer, who represents William Mullins-Johnson, Sherry Sherret-Robinson and at least seven unnamed persons at the Inquiry, was quick to zoom into this connection in his cross-examination of Gorrell;
MR. DAVID GORRELL: This was a man with no record -- a new immigrant to this country, a wife with a brain tumour, a job," Gorrell told Lockyer;
"He was a contributing member of society, and all of the sudden an atomic bomb goes off in his life -- murder 2. You have to tell him because they always ask, What's the penalty, and you say, Life with a minimum penalty of ten (10) years -- ten (10) years. He would have gotten out of jail had he gotten ten (10) years, and if the trial had taken two (2) years, he's just be out now for four (4) years, and his
whole life would be shattered. Now, I -- I see in these notes that I've been given for the first time today, the meeting January 30th of 1992, the words "damage control" appear dealing with the case from Mr. Justice Dunn. I can't make a connection between that meeting and what happened in my case, except that it
happened just a few weeks later out of the same office. I'm still shocked.
MR. JAMES LOCKYER: The same Crown, as a matter of fact --
MR. DAVID GORRELL: Well, no, -- well, no, Ms. Koehl wasn't on this case, but Mary --
MR. JAMES LOCKYER: Mary Hall --
MR. DAVID GORRELL: Mary Hall, the same Crown attorney.
MR. JAMES LOCKYER: -- was the common denominator to your case and their case, is that right?
MR. DAVID GORRELL: Yes, and the Scarborough courthouse --
MR. JAMES LOCKYER: Mm-hm.
MR. DAVID GORRELL: -- and Charles Smith, Of course. But --
MR. JAMES LOCKYER: I think Mary Hall was actually the Crown when you did the pretrial in October--
MR. DAVID GORRELL: Yes, she did.
MR. JAMES LOCKYER: -- on the Gaurov case, is that right?
MR. DAVID GORRELL: She was there. I think Ms. Koehl was unavailable for some reason, but...
MR. JAMES LOCKYER: Yes. And I -- as I recall, Mr. Koehl also said that any plea arrangement would be subject to the approval of Ms. Hall.
MR. DAVID GORRELL: That I don't remember, but I -- I wouldn't be surprised in any case.
MR. JAMES LOCKYER: It's in one (1) of the documents in the file you arrived with today.
MR. DAVID GORRELL: Really?
MR. JAMES LOCKYER: Yes.
MR. DAVID GORRELL: Fine, then I accept
that.
MR. JOHN STRUTHERS: It was the practice
at the time.
MR. JAMES LOCKYER: Yes.
MR. DAVID GORRELL: But the -- just -- just to continue with this, what -- I said, my heart went out to Gaurov's father. I don't know how I'd -- I'd act in this situation if I had someone like Mr. Struthers saying, Well, you can get ninety (90) days on weekends. After emission, that's sixty (60) days. That's a maximum of fifteen (15) weekends. The Mimico is jammed, so you'll wind up doing only three (3), or four (4), or five (5). You can do that, or you can sit in the courtroom and be judged by everybody with a risk, with Charles Smith up there with a mantle of Sick Kids on his shoulder. You can go to jail. You can go to jail on a
manslaughter. I really didn't think a murder was in the cards, but you can go to jail on a manslaughter. What decision would I make? I'm pretty sure I'd make the
decision he made even if I were not guilty. But as his lawyer, I'm the only person in the whole scenario that Doesn't judge him. The police judge him when they charge him. The Crown judges him when they prosecute him. The Judge judges him, the jury judges him, the press judges him. When he says, I want to plead guilty, and
I will sign on the dotted line, and I did it, I'm not going to tell him, No, sir, you're going to face the trial and if you get eight (8) years, that's for the
greater good of the justice. I took his instructions and I -- I would not be at all surprised, with the stress that man was under at the time, if he was doing it out of expediency.
MR. JAMES LOCKYER: And the instructions that you received from him by way of the form that you prepared, obviously the way it's typed up, it was -- the words were your words in that document, is that fair?
MR. DAVID GORRELL: Yes, they were my words.
MR. JAMES LOCKYER: And they were words designed to fit the notion of criminal negligence. Reckless is hardly a word an east Indian that doesn't
speak English is going to come up with.
MR. DAVID GORRELL: No, the -- this -- these were my words.
MR. JAMES LOCKYER: Yes. And, as Mr. Struthers was just saying, it was more a document for your protection than a document to assist Gaurov's
father, is that fair?
MR. DAVID GORRELL: I think that's probably fair. It's also a document that you would use to fix his mind as to what he's doing, so that he can't
come back and -- I guess to protect counsel, that's right. I(t) was thirteen (13) pages;"
Dear readers:
Imagine how the prosecutors must have felt to learn about Justice Dunn's troubling criticisms of the work performed by Dr. Charles Smith and the Hospital for Sick Children SCAN-TEAM in the then recent Amber case;
Would that not have raised serious questions as to whether or not there was a reasonable possibility of obtaining a conviction in the case?
At the very least, shouldn't the existence of the decision - which was not likely publicly available at that time - have been made to the defence lawyers?
At least, that way they could assess the strength of the Crown's case before putting the plea to criminal negligence causing his son Gaurov's death to his client whether or not the law relating to disclosure at the time required them to do so?
As a criminal lawyer, I suspect that after reading the Dunn decision I would have been in a position to more confidently advise the client to contest the murder charge - instead of having to go through the contortions involved in a criminal negligence plea where I would have so much doubt about my client's guilt?
Just imagine how much pain this mourning family would have been spared - let alone the need to bear the load of sixteen years of stigma in their tiny community - and having to fight for ultimate exoneration after sixteen years in the Ontario Court of Appeal;
Next: Part Seven; Gaurov's father: Another shocking revelation;
Harold Levy: hlevy15@gmail.com;
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