Friday, October 31, 2008

DON'T LIMIT GOUDGE RECOMMENDATIONS TO FORENSIC PATHOLOGY, LAWYER ARGUES;

"OUR LEGAL PRINCIPLES AND HUMAN NATURE CONSPIRED TO CREATE AN OPPORTUNITY FOR DR. SMITH TO POLLUTE THE CRIMINAL JUSTICE SYSTEM WITH SOME VERY FRAUDULENT SCIENCE.

THAT FORENSIC PATHOLOGY MAY BE CLEANSED BY THE RECOMMENDATIONS OF THIS REPORT OFFERS LITTLE COMFORT TO THOSE WHO REALIZE THE SAME ISSUES INFECT THE OTHER AREAS OF FORENSIC OPINION EVIDENCE."

LAWYER ALAN GOLD: LAWYER'S WEEKLY;

-------------------------------------------------------------------------------

Some valuable observations about forensic evidence are made by Toronto lawyer Alan Gold in an article recently published in Lawyer's Weekly under the heading, "Goudge Report should go beyond forensic pathology."

"The Goudge Report, an inquiry into pediatric forensic pathology in Ontario, was released on Oct. 1," the article begins.

"This report was eagerly anticipated not just by those directly concerned with pathological medicine, but by everyone aware of the problematic nature of expert opinion evidence," it continues.

"Judges, including Supreme Court of Canada Justice Ian Binnie, have repeatedly decried the problem of distinguishing valid and reliable expert evidence from its counterfeit counterpart.

Those concerned with the problem hoped that Justice Goudge's report would transcend its particular context and advocate a more vigorous judicial gate keeping function, especially in criminal cases.

It does so - but only somewhat.

Within the context of forensic pathology, the report is comprehensive and unassailable.

It proposes a forensic pathology edifice that is state of the art.

It deals cogently and completely with the problems and issues born in "expert evidence" as practised by Dr. Charles Smith, whose actions triggered the inquiry, and the system's response to it.

Recommendations such as increased legal aid funding for the defence, including junior and associate counsel, will be welcomed by the defence bar, as will the recommendations for increased legal aid funding for defence expert witnesses and for the Crown's pathologist witnesses to meet in advance with defence counsel.

But, unfortunately, the report fails to sufficiently generalize those problems and issues or to apply the lessons learned beyond the particular context, undoubtedly because of the legal limitations on the scope of the inquiry and its recommendations.

Our legal principles and human nature conspired to create an opportunity for Dr. Smith to pollute the criminal justice system with some very fraudulent science.

That forensic pathology may be cleansed by the recommendations of this report offers little comfort to those who realize the same issues infect the other areas of forensic opinion evidence.

Funding defence expert witnesses to ensure a level playing field at trial is a crucial and fundamental issue that transcends forensic pathology.

That prosecution expert witnesses should make themselves available in advance of trial for meetings with defence counsel should be a requirement of general application.

The report also fails in some respects to appreciate the inherently dangerous nature of forensic opinion evidence.

The recommendations urge that police and pathologists "be vigilant against
confirmation bias" and recommend training in that regard.

Such training should be supported, but to think that confirmation bias can be eradicated in that way or that training can always inoculate against that insidious corrupting influence is wishful thinking.

Confirmation bias is ubiquitous in forensic science as currently practised.

Fingerprints, ballistic marking and trace evidence findings are all "matched" by the one-to-one comparison that was recognized many decades ago to be valueless in identification evidence where persons are being matched.

Even DNA profiling can be made more reliable by sequential unmasking, so that decisions are made before the technician can be influenced by knowledge of the suspect's profile.

Nevertheless, the report does emphasize the judicial gate keeping function, and chapter 18 on the role of the court should be mandatory reading for all participants in the criminal (and civil) justice system.

The report states: "A concern about the reliability of evidence is a fundamental component of the law of evidence... Reliability can be an important consideration in determining whether the proposed expert evidence is relevant and necessary; whether it is excluded under any exclusionary rule,including the rule that requires evidence to be excluded if its prejudicial effect exceeds its probative value; and whether the expert is properly qualified.

Trial judges should be vigilant in exercising their gate keeping role with respect to the admissibility of such evidence.

In particular, they should ensure that expert scientific evidence that does not satisfy standards of threshold reliability be excluded, whether or not the science is classified as novel.

"Reliability, as the Goudge Report takes three volumes to teach us, is not a function of a witness's credentials or charisma or oratorical skills.

It is a function of methodology, how the evidentiary opinion was arrived at and, specifically, whether it was reached by compliance with the dictates of science.

Justice Goudge's report may mark the point at which we stop just talking about bad expert evidence and start doing something about it."

Harold Levy...hlevy15@gmail.com;

JUSTICE GOUDGE'S FINDINGS; PART THREE; JENNA'S CASE (1): SMITH;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;


-------------------------------------------------------------------------------


An overview of Jenna's case prepared by Goudge Inquiry staff tells us that:

Jenna was born in Peterborough, Ontario on April 21, 1995 to Randy and Brenda Waudby. Jenna died on January 22, 1997, at the age of 21-months in Peterborough; Mrs. Waudby was charged with second-degree murder on Sept. 18 1997. The criminal proceeding concluded on June 15, 1999, when the charge was withdrawn.
The local Children's Aid Society apprehended Ms. Waudby's older child, Justine, on the day of Jenna's death and placed her in temporary foster care. She remained in foster care until January 27, 1997, when she moved in with Tom and Kim Waudby, her maternal aunt and uncle. She remained there until March 27, 1997, at which time she was again placed in foster care. She was ordered returned to Ms. Waudby's care on May 2, 1997, pursuant to an Order of Justice A.P.Ingram and remained in her care until Sept. 18, 1997, the day of Ms. Waudby's arrest. She was later re-apprehended on the date of Ms. Waudby's arrest. The Children's Aid Society also apprehended a second child, M.W. born after Jenna's death, and placed him with his father. On July 23, 1999, subsequent to the withdrawal of Ms. Waudby's murder charge, Justine was ordered returned to her mother's care. That same day, access was also granted to M.W. who would continue to reside with his father. The Children's Aid Society appealed the decision. On August 13, 1999, the appeal was dismissed. On Dec. 28, 2006, the youth who was babysitting Jenna the night she died was charged with second-degree murder. On December 14, 2006, J.D. pleaded guilty to manslaughter. The criminal proceeding concluded on March 1, 2007, when he was sentenced as a youth to 22 months incarceration followed by 11 months of community supervision;


-------------------------------------------------------------------------------

Dr. Smith's responses to the College of Physicians and Surgeons investigation:

Justice Goudge ruled that as in Amber's and Nicholas' cases, Dr. Smith's responses to the investigation "lacked candour;"

He cited specific "false and misleading statements to the College, as well as to Deputy Chief Coroner Dr. Jim Cairns, including his allegations:

0: That he had performed an adequate sexual assault examination;

0: That he had collected a hair from Jenna's body and offered it to the forensic identification officer, who refused it, and,

0: That he had kept the hair anyway and that he had brought the rejected item with him to the preliminary hearing in October, 1998;

"No matter how preposterous and contradictory these explanations now sound, in the early 2000's they worked," said Goudge. "The College believed him - and even commended him for seizing and retaining the hair despite the police officers alleged rejection of it."

Justice Goudge noted that Smith's decision to seize the hair but not submit it for analysis "directly affected the forensic significance of the evidence."

Smith's damaging evidence on the time Jenna sustained her injuries:

As well, he noted that Smith's extremely confusing evidence on many points left the clear (but erroneous) impression that Jenna's injuries occurred approximately 24 or 28 hours before her death, which gave her exclusive access to Jenna at the time the blows were inflicted, and resulted in her committal to trial on the charge of second-degree murder.

Interaction between forensic pathology and the criminal justice system;

Justice Goudge singled out for censure one of the worst aspect of Smith's misconduct in Jenna's case: the fact that his flawed opinion steered the place away from J.D, the babysitter - the real killer.

"It is equally tragic, however, if flawed pathology steers the criminal justice system away from the true perpetrator, as happened in Jenna's case, Goudge said.

"In that case, the erroneous pathology failed to focus the criminal investigation on Jenna's babysitter.

Instead, Brenda Waudby, Jenna's mother, became the focus of the investigation.

As a result, the babysitter, who was the one responsible for Jenna's death escaped detection for many years."

(Although Smith's flawed flawed work undoubtedly influenced the police investigation, the Peterborough force cannot be let off the hook. Brenda Waudby's lawyer pointed out serious flaws in the police investigation - including the evidence collection process - that got in the way of making an early arrest of J.D.)

Obtaining relevant information:

Justice Goudge rejected Smith's explanation that nothing in the information he received from the coroner and the police pointed to the possibility of a sexual assault.

"Dr. Smith was wrong," reported Goudge.

"The evidence shows that, before the post-mortem examination Dr. Smith was given a copy of the post-mortem examination, Dr. Smith was given a copy of the hospital emergency record, which contained an emergency physician's observation that there were numerous areas of bruising, possible rectal stretching and and tears in the vulva, and that a hair had been found in Jenna's genital region.

Although the police and coroner certainly should have highlighted that information for him, Dr. Smith was responsible for carefully reviewing all the information provided to him.

That information suggested that Jenna might have been sexually assaulted...

"In my view, in light of the evidence suggesting a sexual assault, Dr. Smith's failure to conduct a detailed sexual assault examination, including the taking of genital swabs and the dissection and sampling of appropriate tissues was inexcusable."

Here is where a true dilemma arises: Since Dr. Smith was overly prone to find sexual abuse in his cases - even when it didn't exist - why didn't he act on the mentions of sexual abuse in the hospital records and the glaring signs of sexual abuse on Jenna's body?

The answer may lie in the section of the Goudge Report headed: Disregarding irrelevant and prejudicial information;

Justice Goudge heard evidence that around the time of the autopsy, Dr.Smith was given information that Jenna's mother had left home several hours before Jenna's death, that she was expected to return home within the hour, but that she actually returned much later. (Smith later told an assessor for the College of Physicians and Surgeons "that the real issue in the case was that Jenna's mother had not returned home until eight or nine hours later."

"Dr. Smith should not have considered this aspect of the history in his analysis of the case,much less elevated its status to the real issue of the case," Goudge concluded.

"It allows the impression that Dr. Smith's opinion was reached in part because of his view that the mother was irresponsible."

This conclusion gives me shivers.

That Smith may have decided to have Brenda Waudby charged with murder because he found her irresponsible - rather that focus sing on evidence which indicated that the teen-age babysitter may have sexually assaulted and murdered this two and a half year old baby girl (and could strike out and sexually assault and murder again and again), is horrible beyond belief.

Especially the once revered and oh, so righteous Dr. Charles Randal Smith.

Recording the pathologist's actions:;

Jenna's case was one of several in which Dr.Smith was found to have failed to properly document the samples he took and the exhibits he collected during the autopsy - particularly his collection of a hair from Jenna's genital region without making any record that he had done so.

"This omission left the police and the defence not knowing whether there was a hair, and, if so what happened to it," said Goudge ruled, adding that "in my view, Dr. Smith ought to have known of the importance of recording properly the samples and exhibits he collected."

"It is just common sense."

In this Blogster's humble opinion that is exactly the point.

Dr. Smith knew exactly what he was doing.

He deliberately retained the hair and hid it from all others in order to serve his own twisted agenda of convicting Brenda Waudby.

Preserving autopsy records:

Justice Goudge notes that in Jenna's case, Dr. Smith's work was troubling because he "failed to take proper care of the notes he made before and during the autopsy."

"During and after his involvement in the initial criminal proceedings, he indicated on at least three occasions that he had no such notes, including at the preliminary hearing in October, 1998," Goudge wrote.

"However, in October 2004, his counsel provided seven pages of Dr. Smith's handwritten notes to the Chief Coroner's Office.

At the inquiry, Dr. Smith testified that he could not recall how the notes were discovered."

Handling of exhibits for testing: PP142 to 144;

Justice Goudge rejected all of Dr. Smith's claims about the above-noted hair - the police weren't interested in the hair; he believed it was merely a contaminant left behind during resuscitation efforts; the attending officer refused to take it; it was a trunk hair - not a pubic hair; whatever it was would have been altered or displaced by the end of the resuscitation process; there was no need to submit it for analysis anyway because there were no other findings to make him believe that Jenna had been sexually assaulted.

Lie, lie, lies and more lies.

"Dr. Smith first offered his tortured explanation when Dr. Cairns confronted him about it. Dr. Cairns found it simply not credible." wrote Goudge," as he pronounced Dr. Smith's conduct in the seizure and collection of exhibits as "inexcusable."

"I agree."

Failure to record consultations with other experts;

Reading between the lines, Justice Goudge does not believe Dr. Smith's claim that he consulted Dr. Dirk Huyer of the Hospital for Sick Children Suspected Child Abuse and Neglect (SCAN) Team during the autopsy performed on Jenna in January 1997, to consider if there was sexual abuse.

(Not surprisingly, Smith claimed that Dr. Huyer backed him up!)

"Dr. Smith did not document the consultation in his report, and when asked about the case, Dr, Huyer had no specific recollection of being involved," said Goudge;

The inadequately prepared expert:

If all the above was not enough, Justice Goudge calls Smith's lack of preparation for Brenda Waudby's preliminary hearing, "perhaps the worst example of poor preparation," in light of his erroneous evidence to the Court that he did not have any notes in the case.

Justice Goudge points out that this had a very serious consequence for Waudby: Her defence lawyer was at a significant disadvantage because he never had an opportunity to review Smith's notes before cross-examining him.

Justice Goudge didn't buy Smith's attempt to explain his lack of preparation on the basis that he didn't know any better, that he did not know he was expected to review all of the materials relating to a case before testifying in court about it, or that he was expected to bring his file with him to court.

"By the date of this preliminary hearing, however, Dr. Smith was an experienced expert witness and surely knew that at preliminary hearings and trials he had to be able to give detailed evidence on the pathology findings and that this could have significant consequences," he ruled.

"He surely knew that proper presentation was essential if he was to do this part of the job properly and serve the criminal justice system."

In the view of this humble Blogster, Dr. Smith also knew was that the best way to protect his opinion and help the prosecutor win the case was to make scanty notes and do as much as possible to blunt any challenge from the defence.

Harold Levy...hlevy15@gmail.com;

Thursday, October 30, 2008

PREMIER WILLIAMS "APOLOGY": GLOBE AND MAIL'S VIEW;

BUT WHO IN A POSITION OF AUTHORITY ALLOWED THIS SLIPSHOD TESTING TO GO ON SO LONG?

WHO TRIED TO KEEP IT HUSH-HUSH ONCE IT WAS DISCOVERED, EVEN AT THE POSSIBLE RISK OF FURTHER HARM TO THOSE WHO MIGHT NOT YET BE AWARE OF THE FAULTY TESTS?

THE PEOPLE IN CHARGE OF EASTERN HEALTH, THE PROVINCE'S BIGGEST HEALTH AUTHORITY, CERTAINLY KNEW, SINCE IT WAS THEIR LAB.

THEIR CONCERN WAS DAMAGE CONTROL.

GLOBE AND MAIL EDITORIAL: 29 OCTOBER, 2008;

-------------------------------------------------------------------------------

The Globe and Mail's take on Williams "apology" ran today under the heading: "A reign of error's ramifications."

"Newfoundland and Labrador Premier Danny Williams plausibly denied responsibility yesterday at a judicial inquiry into the province's unconscionable eight-year record of botching cancer tests," the editorial begins;

"But whether plausible or not, his testimony marked a low point for accountability in government," it continues.

""He didn't know about the hundreds of botched tests and potentially fatal results until he read about them in a newspaper.

He didn't keep detailed records on his day-to-day activities. That would have eaten into his workday, he explained.

His office receives 125,000 to 150,000 contacts a year, and he can't be told everything.

He is "disappointed" no one told him. (No, he apparently didn't fire anyone.)

He has instructed cabinet ministers to tell him the next time something important happens.

"If the ramifications of what's going on are that people are dying as a result of the mistakes ... that's a significant change of circumstance that I would certainly liked to have been aware of."

To straighten out (and fill out) that sentence: The health system botched 383 tests on breast-cancer patients from 1997 to 2005, out of 1,013 that had to be redone. One woman had a double mastectomy, needlessly.

Of the people whose tests were inaccurate, 108 had died by the beginning of the inquiry led by Madam Justice Margaret Cameron of the province's Supreme Court.

And no one, not even his own chief of staff, told the Premier, or the public.

The reign of deadly error was finally halted when a doctor wondered why her patient wasn't responding to treatment, and had her retested.

It was no more difficult than that.

An external review found that the pathology lab's technologists did not "completely understand the theory" of the tests.

But who in a position of authority allowed this slipshod testing to go on so long?

Who tried to keep it hush-hush once it was discovered, even at the possible risk of further harm to those who might not yet be aware of the faulty tests?

The people in charge of Eastern Health, the province's biggest health authority, certainly knew, since it was their lab.

Their concern was damage control.

Then-health minister John Ottenheimer, whose department oversees Eastern Health, also knew, and wanted to tell (or so he claimed), but accepted Eastern's advice to avoid panicking people.

And the Premier's chief of staff received e-mails telling him.

But he couldn't remember at the inquiry whether he had talked to anyone about them. (Judge Cameron rolled her eyes at that one.)

The Premier was contrite yesterday.

He apologized to patients.

But in weeks past, he set a new standard for public hostility to an inquiry that his own government called.

He accused Judge Cameron of presiding over a witch hunt, or an inquisition.

He appealed to her to halt aggressive questioning ("this is not a Perry Mason exercise") from counsel.

This is at best needlessly insulting, and at worst an attempt to intimidate.

Sometimes all people can do is roll their eyes.""

The Globe and Mail points its editorial finger at "damage control."

Sound familiar?

Harold Levy...hlevy15@gmail.com;

JUSTICE GOUDGE'S FINDINGS: PART TWO; NICHOLAS' CASE; (8); THE COLLEGE; A REMARKABLE UNDERSTATEMENT;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;


-------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.

Nicholas was the child of Lianne Gagnon and Steven Tolin.

Nicholas died on November 30, 1995, in Sudbury.

Nicholas was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.

The proceedings concluded on March 25, 1999 when the society withdrew the protection application;


------------------------------------------------------------------------------

After reviewing the College of Physicians and Surgeons of Ontario's handling of three complaints lodged against Dr. Charles Smith - including the Nicholas case - - Justice Goudge ruled with remarkable understatement,that: "while the College did play its role as one accountability mechanism for doctors, with hindsight a more vigorous response would have been preferable."

"There is no doubt that the misinformation it received from Dr. Smith, its acceptance of this information without testing it, and its failure to be informed of relevant facts by the Chief Coroner's Office contributed to what happened," Goudge continued.

"However, this review remains yet another lesson in the need for active vigilance if oversight and accountability mechanisms are to do their job properly;"

Remarkable understatement indeed!

Harold Levy...hlevy15@gmail.com;

Wednesday, October 29, 2008

NEWFOUNDLAND PATHOLOGY TEST DEBACLE; PREMIER'S APOLOGY; PUBLIC TRUST BETRAYED BY OFFICIALS; ECHOES OF ONTARIO;

"WILLIAMS SAID EVEN WHEN NEWS BROKE IN OCTOBER 2005 IN THE WEEKLY ST. JOHN'S NEWSPAPER THE INDEPENDENT, HE TOOK COMFORT IN PUBLIC ASSURANCES THAT EASTERN HEALTH MADE OVER THE RETESTING.

"WE WERE ASSURED THAT PEOPLE WHO NEEDED TO BE CONTACTED, WERE CONTACTED," WILLIAMS SAID.

HOWEVER, THE NEWFOUNDLAND AND LABRADOR GOVERNMENT REVEALED THIS MARCH THAT EVEN BY THEN, SOME PATIENTS HAD NEVER BEEN TOLD ABOUT THEIR RETESTED SAMPLES."

CBC REPORT ON DANNY WILLIAMS APOLOGY; 28 OCTOBER, 2008;

---------------------------------------------------------------------------------
Newfoundland Premier has apologized for the grief and anguish suffered by breast cancer patients who received flawed pathology tests.

As the following CBC account suggests, there are analogies with Ontario, where we have learned from the recently released Goudge report that top officials in the Coroner's office kept secret their knowledge of the seriously flawed work of Dr. Charles Smith while innocent parents and caregivers continued to be wrongfully investigated and charged.

The CBC account runs under the heading: "Williams apologizes, takes 'full responsibility' at cancer inquiry."

"Premier Danny Williams apologized Tuesday for any grief and anguish that Newfoundland and Labrador breast cancer patients have suffered because of flawed laboratory tests," the account begins.

""We take this personally," Williams told the Cameron inquiry Tuesday. "We certainly take responsibility, full responsibility, for any actions ... that might have contributed to this problem," it continues.

"Williams told Justice Margaret Cameron that his government will act quickly on recommendations that she will make next year, while pointing out that his government has already invested heavily in improving the health-care system since learning that hundreds of breast cancer patients received inaccurate hormone receptor tests.

"[But] money is not the answer," said Williams, who paid tribute to the "pioneers and martyrs" who died or were possibly hurt by flawed tests.

"That does not help the people in the back of the room who have lost something. Money can't replace that. We can't replace that for them," said Williams. "We sincerely apologize and take full responsibility."

The apology followed testimony in which Williams criticized what officials did and did not do in handling a public health crisis sparked by flawed lab tests.

Williams also told the Cameron inquiry in St. John's that he ought to have been told much more - and much earlier - about hundreds of flawed tests, including a stern message from a now-retired pathologist who warned more than five years ago that breast cancer tests were not reliable.

As well, Williams said he was personally upset to learn that the health of breast cancer patients had been compromised, but especially that patients were not given all the information they needed regarding their health.

"I have the right as a patient to be able to go out and do what's in my best interest to extend my health," Williams told Justice Margaret Cameron, who has been hearing evidence since March on how almost 400 breast cancer patients had been given inaccurate hormone receptor tests.

The tests are used to determine whether a patient can receive the powerful antihormonal drug Tamoxifen.

"If it was me or my mother that was in this situation and had been misdiagnosed through this process, and had found out after the fact that she could have had better treatment ... I would be pretty angry and pretty annoyed over the whole situation if in fact there was information that was important to me that was not disclosed or was not disclosed in a timely manner," said Williams.

"You know, when you're talking about life and death, it doesn't get any more important than that."

Williams was questioned extensively about what government officials knew, and did not, in the early days of the hormone receptor test issue, particularly when Williams's top aides first learned something was amiss involving tests done between 1997 and 2005.

The premier's office and the cabinet secretariat in the Newfoundland and Labrador government were first told about a "major" health issue involving as many as 1,500 patients, through a July 19, 2005, e-mail from a Department of Health communications official.

Hours later, that was followed with an update that no immediate action was required.

Williams told Justice Margaret Cameron he knew nothing about the advisories at the time, and did not learn that Eastern Health was retesting hormone receptor tests until the public found out, almost three months later.

"Believe me, I've thought about this in a lot of detail," Williams told the inquiry, describing the initial warning and a followup note from the same Health Department official, Carolyn Chaplin.

"By the afternoon, the subject matter is now termed an update ... A 'no action' statement to me or my officials is exactly that. Stand down," Williams said.

"Based on that, that is a clear signal to our office that this matter is, for want of a better word, dormant right now," said Williams, adding the matter was "thought to be a non-issue at this time."

Williams said he could not remember much about the events of that day, but said he was not told at the time about the breast cancer test issue.

Aides have already testified that they could not recall telling Williams about the early e-mails.

Williams said he had little official business on that day, and that on most ordinary days, he likely would have been told immediately.

In retrospect, Williams testified, he understands how officials in his office and at the cabinet secretariat decided not to take action.

While Williams said Eastern Health was responsible for dealing with the crisis, he also said he was disappointed that what he called "damning" 2003 warnings written by Dr. Gershon Ejeckam, were not brought to his attention until May 2007, shortly before he called the inquiry. Williams also testified that he was "flabbergasted" by the content of one particular Ejeckam memo.

"Should I have been told? Yeah," Williams said, adding that he is ultimately responsible for public services, and that staff are instructed not to withhold information to give him "plausible deniability."

"The consequence of any denying me information to protect me from being involved in it doesn't work with me, because, again, ultimately the buck stops here," Williams said.

The inquiry has already been told that Ejeckam's warnings did not travel far. Top officials at the St. John's Health Care Corp., one of several authorities that merged in 2005 to form Eastern Health, were never told about Ejeckam's warnings, which led to a partial suspension of testing at the St. John's pathology lab.

Williams said he was astounded, as a lawyer and as premier, to read how Ejeckam had warned others that the health authority was at risk of lawsuits because of persistent and erratic testing problems.

Williams also testified that he was assured by Eastern Health and others, from 2005 onward, that the issue was being managed well and that patients were being notified appropriately. In fact, the inquiry has often been told that Eastern Health officials relayed inaccurate information to the government, particularly over patient notification.

As well, government officials were never briefed on the conclusions of two external experts, who found myriad problems at Eastern Health's pathology lab, including poor training and high staff turnover. Williams testified Tuesday that he did not read one of the reviews until this month.

Williams said even when news broke in October 2005 in the weekly St. John's newspaper the Independent, he took comfort in public assurances that Eastern Health made over the retesting.

"We were assured that people who needed to be contacted, were contacted," Williams said.

However, the Newfoundland and Labrador government revealed this March that even by then, some patients had never been told about their retested samples.

As well, Williams expressed his disappointment that a 2006 briefing note prepared for him did not spell out clearly the extent of the problem, and actually led him to believe that a small number of patients were affected by the errors.

Williams also testified that the provincial government "dropped the ball" in December 2006, when it failed to notice that Eastern Health had not revealed what it actually knew about the breast cancer tests during briefings to the media.

Williams said when CBC News reported in May 2007 on court documents that showed the error rate in hormone receptor tests was about 42 per cent, or several times higher than Eastern Health had estimated, he and other cabinet ministers were alarmed. The inquiry was called shortly thereafter.

"These figures just seem to be oscillating," said Williams, recalling how government was trying to grapple in the spring of 2007 with a rapidly changing series of facts. The government also soon after established a task force on adverse health effects, and organized a database on breast cancer patients.

Meanwhile, Williams also said that his government had no choice but to cut spending in Newfoundland and Labrador's health-care system after taking office in 2003.

Williams, testifying at the Cameron inquiry on breast cancer mistakes, also said he is troubled by the "life and death" issues that the inquiry has raised, particularly where government policy, money and health care intersect.

"Excessive cuts had to be made just to keep her afloat," said Williams, describing how his Progressive Conservatives launched sweeping cuts to government services and programs to overcome a massive government deficit.

The inquiry has often been told about how restraint in the health-care system, often predating when Williams took office in 2003, led to compromises in quality, including in resources available to pathologists and laboratories.

Williams also testified that his experience with bungled breast cancer tests has changed how he is briefed on critical issues.

"Common sense comes in here," Williams told Cameron on Tuesday, adding that his ministers have been instructed to not leave crucial issues to e-mails or phone calls.

"You need to come to me. You need to come to me directly."

Williams also testified that senior officials have also been given new orders on how to deal with emergency issues.

"All senior officials are now on red alert," Williams testified.

Williams is one of the final witnesses to appear at the Cameron inquiry, which concludes hearings this week into how hundreds of breast cancer patients received inaccurate results on crucial hormone receptor tests.

The inquiry has already looked at how senior levels of the Newfoundland and Labrador government learned that Eastern Health had identified serious problems with estrogen receptor and progesterone receptor tests.

Speaking with inquiry co-counsel Bern Coffey, Williams said he could not possibly keep up with all of the hundreds of briefing notes and thousands of phone calls and e-mails that arrive in his office each year.

"I just couldn't do this and get the job done," Williams told the inquiry.'


Harold Levy...hlevy15@gmail.com

JUSTICE GOUDGE'S FINDINGS: PART TWO; NICHOLAS' CASE: (7); DR. YOUNG'S "TROUBLING TESTIMONY"; MAURICE GAGNON'S COMPLAINT TO THE CORONER'S COUNCIL;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;


-------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.

Nicholas was the child of Lianne Gagnon and Steven Tolin.

Nicholas died on November 30, 1995, in Sudbury.

Nicholas was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.

The proceedings concluded on March 25, 1999 when the society withdrew the protection application;


------------------------------------------------------------------------------

"Nicholas' case represents a particularly troubling example of how the organizational weaknesses of the Chief Coroner's Office, together with errors of judgment by Dr. Young and Dr. Cairns, combined to prevent meaningful oversight of Dr. Smith."

Justice Stephen Goudge.

-------------------------------------------------------------------------------
Maurice Gagnon's efforts to get answers about his grandson Nicholas' death included a complaint he lodged in February, 1999 with the Coroner's Council - a body that had been created to deal with serious complaints about the work of Coroners which had unfortunately been repealed in December, 1998.

Justice Goudge tells us that although former Chief Coroner Dr. James Young personally responded to the complaint:

0: Young did not forward the complaint to, Dr. Chiasson, his Chief Forensic Pathologist (As he testified he normally would have done);

0: Young did not delegate any investigation of the complaint to any member of his staff;

0: And "Indeed, there is no evidence that Dr. Young took any measures to investigate the details of Gagnon's concerns about Dr. Smith's practices in the Nicholas case."

I remember trying to hide my cynicism at the Inquiry when Young testified that it was not possible for him to respond to every aspect of a detailed complaint - and that it was his practice to skip sections of complaints (without reading them) which he deemed to be irrelevant.

This didn't ring true to me because I was very familiar with this complaint - and all of the other complaints filed by Mr. Gagnon.

As Justice Goudge described it:

"Mr. Gagnon's complaint outlined several concerns about Dr. Smith's conduct in Nicholas' case, including the exaggeration of findings of "mild diastasis" into "widely split skull sutures," reliance on undocumented "corridor" consultations, contradictory findings regarding scalp injury, and identification of post-mortem facts as abnormal findings. He also referenced Justice Dunn's decision in Amber's case and included lengthy quotations from the judge's findings and criticism of Dr. Smith."

Although Dr. Young testified that he had no recollection of reading the section of Maurice Gagnon's complaint quoting Justice Dunn's decision, Young is on the record as stating in a draft of his response to the complaint sent to senior officials in his office that he had read Mr. Gagnon's complaint "in detail" and considered it very carefully.

Justice Goudge noted several "regrettable and significant inaccuracies" in Dr, Young's response to Maurice Gagnon, including:

0: His statement that as soon as his office became aware of Dr. Halliday's expert opinion, it requested an opinion from a third independent forensic pathologist; (Not so, said Goudge.The Chief Coroner's Office did not contemplate consulting with an independent expert until the Gagnon family's lawyers raised the issue six months after Dr., Halliday's first opinion.

0: Dr, Young's statement that he had read the Gagnon complaint "in detail" and considered it very carefully: "That was not true," Goudge ruled. "Dr. Young testified at the Inquiry that he probably skipped the portion of the complaint that quoted from Justice Dunn's decision."

(Our readers will recollect that had Dr. Young admitted reading this decision - described by Justice Goudge as a disturbing alarm bell - he would have to explain why he did not take immediate action to review Dr. Smith's cases and rein him in.)

In Justice Goudge's words:

"I found Dr. Young's testimony on this issue very troubling. He insisted that the College should defer to the Chief Coroner's Office to investigate these complaints. Yet his actions displayed a serious disregard for his responsibility to read, investigate, and respond fairly to complaints from the public. He did not give Mr. Gagnon's complaint the Attention it deserved."

Harold Levy...hlevy15@gmail.com;

Tuesday, October 28, 2008

GOUDGE REPORT RESONATES IN SOUTH AUSTRALIA: PARALLELS DRAWN TO KEOGH CASE;

SOUTH AUSTRALIA STILL CONTINUES TO DENY THE EXISTENCE OF A PROBLEM DESPITE OVERWHELMING AND COMPELLING EVIDENCE TO THE CONTRARY. IT IS CLEAR THAT IN DUE COURSE, A ROYAL COMMISSION IN SOUTH AUSTRALIA WILL REACH CONCLUSIONS ABOUT THE DELAY AND PREVARICATION ON THE PART OF OFFICIALS SIMILAR TO THOSE NOW FOUND BY THE GOUDGE COMMISSION. THE ONLY QUESTION WILL BE HOW LONG IT WILL TAKE US TO ACHIEVE THAT RESULT. IT WILL BE INTERESTING TO SEE HOW MANY MORE PEOPLE MAY YET SEE THEIR REPUTATIONS TARNISHED OR DEMOLISHED BY THEIR INACTION.

FROM DR. ROBERT MOLES LETTER TO THE SOUTH AUSTRALIAN AUDITOR-GENERAL;

-------------------------------------------------------------------------------

Unless South Australia establishes a Commission similar to the Goudge Inquiry its forensic pathology system will deteriorate even further, its Auditor General has been warned.

The warning is set out in an October 27, 2008 letter sent to the South Australian Auditor General by Dr. Bob Moles who has been in the forefront of exposing miscarriages of justice based on flawed pathology in that country.

"The Commissioner Justice Stephen Goudge released this important report on 1 October 2008," Mole's letter to the Auditor General begins.

"He states that the failures of forensic pathology in Toronto became a nightmare for those unfortunate enough to be caught up in it," it continues.

"He pointed out that Dr Charles Smith became the Head of Pediatric Forensic Pathology without formal training or certification. The same may be said concerning Dr Manock in South Australia.

He points out that there were serious criticisms of Dr Smith by judges in a number of legal cases.

The same has occurred with Dr Manock in South Australia.
See A state of Injustice (2004) http://netk.net.au/soi/soi.asp

Justice Goudge points out that the warning signs were ignored, and that people who were in positions of authority and who either had a duty or an opportunity to do something either turned a blind eye, or else made false and misleading statements to cover up for Dr Smith’s inadequacies.

As was pointed out in Losing Their Grip – the case of Henry Keogh (2006) p118, the then Coroner Wayne Chivell (now Judge Chivell) stated, he “.. decided, of his own volition, to delay publishing the Findings until after the trial [of Mr Keogh] concluded.” See http://netk.net.au/ltg/LTG11.asp

The Findings referred to are the Findings of the Coronial Inquiry into the Baby Deaths in South Australia.

As part of the Ontario Inquiry, Ms Bibi Sangha and I were commissioned by the Inquiry to provide a research report on the baby deaths and other cases in South Australia.

This has now been published in Volume 2 of the Independent Research Studies of the Inquiry, which I provide to you for your information.

Justice Goudge states: “These experts are among the world’s leaders in their fields. The product of their work, found in the two volumes of studies, is graphic testimony to their stature. .. The eleven works constitute truly independent research. I read each one carefully and with great interest as soon as it became available to me. They are uniformly excellent and assisted greatly in the work of the Inquiry. I am very grateful to Professor Roach [the Director of Research] and the authors for their outstanding contributions and for adding, in such a substantive and useful way, to the body of knowledge of forensic pathology.”

Professor Roach states: “I was fortunate to be able to retain, on behalf of the Commission, some of the top researchers on many issues relating to pediatric forensic pathology and its interaction with the legal system.”

He said that it was important to learn from the mistakes and the best practices of other jurisdictions. Extensive reports on best practices were provided to the Commission by the Victorian Institute of Forensic Medicine, and the important contribution of Professor Stephen Cordner of the VIFM to the work of the Inquiry was frequently acknowledged by Justice Goudge.

Professor Roach stated in relation to the South Australian report, that the study poses the question of whether there may be a connection between pediatric forensic pathology that arguably produced false negatives in the three baby death cases and other cases that may have produced false positives in terms of findings of non-accidental death that are open to dispute.

He said that the authors also examine how a Royal Commission that led to improvements in other forensic sciences in South Australia had little impact on the practice of forensic pathology.

Ms Sangha and I are now engaged on a book “Forensic Investigations – the rhetoric and the reality” which will be published in Canada early next year.

It is being jointly authored with Professor Roach and Julie Goulding of the UK Criminal Cases Review Commission.

It is a comparative study of responses to miscarriages of justice in Canada, the UK and Australia.

It compares the developments in the UK (with the Criminal Cases Review Commission), and in Canada (with eight Judicial Inquiries), with the denials and obfuscation in South Australia where officials have continued to deny that there is anything amiss.

Justice Goudge explained in relation to Dr Smith that the serious systemic failings included sloppy and inconsistent documentation, that he was indiscriminate in accepting information about cases, and his conclusions were skewed by unscientific considerations and his ultimate opinions were fundamentally wrong.

However, he went on to point out that those charged with overseeing his performance cannot escape responsibility.

They accepted false, misleading and deceptive statements by Dr Smith to cover up for his shortcomings.

The Commissioner points out that despite clear opinion that Dr Smith’s conclusions were “unsubstantiated and baseless” those in authority still continued to assert that they fell within a reasonable range.

This can be compared with the various parliamentary statements by the Attorney-General which have been discussed in “Losing Their Grip” and similarly found to be wanting: http://netk.net.au/ltg/LTG11.asp -
http://netk.net.au/ltg/LTG12.asp

The UK has spent some ten years attending to miscarriages of justice by means of the Criminal Cases Review Commission.

Some 240 convictions have been overturned as a result of their work in that time.

Canada has spent a similar amount of time working through miscarriages of justice by means of Judicial Inquiries in relation to the cases of Morin, Sophonow, Truscott, Dalton, Druken, Parsons, Driskell, George, Milgaard, Walsh and some 20 further cases resulting from Dr Smith’s work which were dealt with in the Goudge Inquiry Report.

South Australia still continues to deny the existence of a problem despite overwhelming and compelling evidence to the contrary.

It is clear that in due course, a Royal Commission in South Australia will reach conclusions about the delay and prevarication on the part of officials similar to those now found by the Goudge Commission.

The only question will be how long it will take us to achieve that result. It will be interesting to see how many more people may yet see their reputations tarnished or demolished by their inaction."


Dr. Moles ends the letter with the following uP-date:

Keogh’s appeal concerning the finding of misconduct in relation to Dr James is to be heard by full court. Judgement available at http://netk.net.au/Keogh/Keogh102.asp -;

The prosecution of Dr Manock before the Medical Tribunal is continuing: Complaint available at: http://netk.net.au/Reports/KeoghIndex.asp#MedicalBoard;

Keogh’s Fourth Petition alleging his conviction was obtained by fraud, deceit and manifest error will be lodged with the Governor of South Australia early November. Details will be available here: http://netk.net.au/KeoghHome.asp


Harold Levy...hlevy15@gmail.com;

JUSTICE GOUDGE'S FINDINGS; PART TWO; NICHOLAS' CASE (6); CAIRNS AND YOUNG;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;


-------------------------------------------------------------------------------

An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.

Nicholas was the child of Lianne Gagnon and Steven Tolin.

Nicholas died on November 30, 1995, in Sudbury.

Nicholas was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.

The proceedings concluded on March 25, 1999 when the society withdrew the protection application;


------------------------------------------------------------------------------

"Nicholas' case represents a particularly troubling example of how the organizational weaknesses of the Chief Coroner's Office, together with errors of judgment by Dr. Young and Dr. Cairns, combined to prevent meaningful oversight of Dr. Smith."

Justice Stephen Goudge.

---------------------------------------------------------------------------------

It is crucial to understand that although Nicholas died on November 30, 1995, his death in no way came under suspicion until Dr. Smith produced a consultation report for the Pediatric Death Review Committee more than two years later - on January 24, 1997 - in which he concluded that: In the absence of an alternative explanation, the death of this young boy (was) attributed to blunt head injury."

As a result of Smith's intervention in the case, backed by Dr. Cairns, the Gagnon family had to endure the horror of having Nicholas' body exhumed several years after his death - later to learn that Dr. Smith brought his 11-year-old son to the exhumation;

Justice Goudge faults Cairns for his blind support of Smith in spite of the contents of an affidavit prepared on behalf of Nicholas' mother by a Winnipeg pathologist who concluded that Dr. Smith's conclusions "went far beyond the boundaries that can be supported by the presenting scientific and forensic facts."

Goudge also points out that even though the mother's lawyer sent excerpts from Judge Dun's decision criticizing Smith's work, "Despite Justice Dunn's pointed criticisms, Dr. Cairns neither obtained a full copy of the decision nor took any other steps to investigate Judge Dunn's findings."

One of the most severe criticisms relates to an affidavit Dr. Cairns swore in the Childrens Aid Society proceedings in which he "wholly agreed" with Smith's findings -
even though Cairns was utterly unqualified to give such an opinion "and had not reviewed any of the underlying medical evidence in the case."

"Dr. Cairns told the Inquiry that, in his affidavit, he intended to communicate only that the Chief Coroner's Office accepted Dr. Smith's opinion," wrote Goudge.

"But Dr. Cairns affidavit went much farther than that: it contained what purported to be an expert pathology opinion..."

"Had Dr. Cairns clearly restricted himself to matters within his area of expertise, it is likely that the Chief Coroner's Office or the Children's Aid Society would have obtained an independent pathology opinion much sooner than it did."

It gets worse;

Even when Cairns was finally ordered an independent opinion from an American expert - Dr. Mary Case - who concluded that there were no findings to support the conclusion that the death was caused by either a head injury or an asphyxial mechanism, as Smith had reported - "Dr. Cairns testified at the Inquiry that his confidence in Dr. Smith's judgment was not shaken that Dr. Smith's by the Chief Coroner's Office decision to accept Dr. Case's opinion in Nicholas' case."

Justice Goudge added that: "In light of expert opinions from Dr. Case and Dr. de Sa that Dr. Smith's opinion had no basis in the pathology evidence, this lack of concern is troubling."

Goudge says that although Young testified that he did not become concerned about Smith's work on the Nicholas' case until after his office received the Case opinion - and that he met with Smith and instructed him to be "more conservative in his views" - Young should have responded more forcefully.

"Other than Dr. Young's conversation as described, Dr. Smith was not reprimanded after the conclusion of Nicholas' case," Goudge wrote in his report. "Dr. Young did not put any of his concerns in writing."

"He took no measures to improve Dr. Smith's skills or knowledge, and he created no plan of action to improve the situation."

Harold Levy...hlevy15@gmail.com;

Monday, October 27, 2008

JUSTICE GOUDGE'S FINDINGS; PART TWO; NICHOLAS' CASE (5); YOUNG AND CAIRNS; THE SOLICITOR GENERAL'S REPLY TO MAURICE GAGNON; DRAFTED BY; GUESS WHO!!

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;


--An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.

Nicholas was the child of Lianne Gagnon and Steven Tolin.

Nicholas died on November 30, 1995, in Sudbury.

Nicholas was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.

The proceedings concluded on March 25, 1999 when the society withdrew the protection application;


-----------------------------------------------------------------------------

Justice Stephen Goudge ruled in his report that: "Mr. (Maurice) Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the Chief Coroner's Office were legitimate. Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."

-------------------------------------------------------------------------------

You are probably right.

According to Justice Goudge, the response to Maurice Gagnon's complaint about Dr. Cairns was drafted by none other than Chief Coroner Dr. James Young who also happened to bear the title of assistant deputy minister to David Tsubouchi.

Worse, Justice Goudge concluded that Tsubouchi's response to Gagnon - as drafted by Young - was "substantively inaccurate."

According to Goudge: "The reply set out that the Chief Coroner's Office had arranged for an independent review by Dr. Case and, after receiving this opinion, had concluded that no cause of death could be established and that the means of death was undetermined."The Chief Coroner's Office had reviewed Dr. Smith's involvement, the letter continued, and had concluded that the opinion Dr. Smith came to was within a reasonable range given the facts of the case." The Chief Coroner's Office therefore considered the complaint and the underlying matter "dormant."

But Justice Goudge goes on to say that, "The Solicitor General's response to Mr. Gagnon's complaint, drafted by Dr. Young, was substantively inaccurate."

"Dr. Case directly contradicted Dr. Smith's opinion," Goudge continued.

"The Chief Coroner's Office had accepted Dr. Case's opinion that there were "no findings" to support Dr. Smith's determination of asphyxia or head trauma. Dr. Young had met with Dr. Smith to talk to him about concerns that he was "out on a limb," not "hugging the tree."

"No independent expert ever suggested to the Chief Coroner's Office that Dr. Smith's opinion in the Nicholas case fell within a reasonable range," said Goudge.

"There was therefore no basis for Dr. Young to make that assertion."

Harold Levy...hlevy15@gmail.com;

Sunday, October 26, 2008

JUSTICE GOUDGE'S FINDINGS; PART TWO: NICHOLAS' CASE; (4); MAURICE GAGNON'S COMPLAINT TO SOLICITOR GENERAL TSUBOUCHI; (SECOND PART);

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;


-------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.

Nicholas was the child of Lianne Gagnon and Steven Tolin.

Nicholas died on November 30, 1995, in Sudbury.

Nicholas was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.

The proceedings concluded on March 25, 1999 when the society withdrew the protection application;


------------------------------------------------------------------------------

Justice Stephen Goudge ruled in his report that: "Mr. (Maurice) Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the Chief Coroner's Office were legitimate. Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."

-------------------------------------------------------------------------------

The second part of Maurice Gagnon's complaint to Solicitor General David Tsubouchi began as follows, under the heading: Deputy Chief Coroner For Ontario;

"Law enforcement agencies, such as the police and the CAS, rely on the guidance of the Chief Coroner's Office in the course of investigations. If there are contradicting medical opinions, these agencies accept that the Coroner's Office as the final authority, which will dictate their course of action."

"These agencies, as well as the public at large, trust that the Coroner's Office has the expertise, or will seek the expertise, to make an informed and objective decision, before acting" it continued.

"If this information is wrong, leading to a miscarriage of justice, the Police and the CAS will simply claim "doing their job in good faith", based on information provided by the Coroner's Office.

Legislation, under the Coroner's Act, then protects the perpetrators of this false information from redress. Quite simply, there is no accountability for ruining innocent lives, nor for recklessly expending hundreds of thousands in public funds pursuing these unfounded allegations.

Responsibility

As Deputy Chief Coroner, charged with the investigation of pediatric deaths, Dr Cairns would (should) gather all possible evidence and related information, evaluate each piece of the data, carefully weigh the consequences of his decision against the sustainability of the evidence - all this before stating his opinion as to the cause of death.

The pathologist is (should be) but a resource, a consultant in this review process - not the entire investigation. In this case, Dr Cairns supported everything and anything submitted by Dr Smith, refusing to even consider other opinions;

In this case, Dr Cairns totally abrogated his responsibility to "investigate" and readily accepted Dr Smith's conclusions at face value.

Dr Smith's opinions:

"In the absence of an alternate explanation, the death of this young boy is attributed to blunt head injury" - Jan 24/97
"In my opinion, the cause of death was Cerebral Edema (consistent with blunt force injury)" - Aug 6/97
"I believe that the edema of Nicholas' brain, not being caused by natural disease, could have been caused by trauma." - June 29/98
"In the absence of a credible explanation, Nicholas' death must be regarded as non-accidental in nature".- "I cannot be absolutely certain as to the cause of the injury". -June 29/98
"The injuries are not explained by any activity described by the mother in her statement." - June 29/98
"In this situation of having a devastating injury which is not explained by history and which is usually non-accidental in nature, it is accepted practice to make a summary statement such as I did." - June 29/98.
"While the pathological appearance of the injuries can help separate inflicted from non-inflicted injury, in this case there is insufficient evidence to make such a determination on pathological grounds alone." -June 29/98
"I cannot completely eliminate asphyxia as a cause, although the medical evidence, in my opinion, points to a blunt head injury." - July 20/98
Either a blunt force impact to the head or the asphyxia would be by non-accidental actions of the caregiver." -July 20/98.
"I am 99% certain that this child died due to non-accidental trauma inflicted by the mother." -May 8/98
ETC, ETC, ETC

Smith's entire opinion was based on conjecture and speculation.

The Crown Attorney later concluded that the evidence could not support criminal charges.

Dr Cairns was clearly negligent in not evaluating the sustainability of Dr Smith's conclusions, before giving his full endorsement.
Dr Cairns demonstrated reckless disregard for the consequences of leveling a speculative accusation of murder.(This was not a traffic ticket)
Even after the Crown Attorney provided an objective evaluation of the evidence, Dr Cairns persisted in promulgating the murder accusation, by promoting and encouraging the CAS to apprehend my daughter's new baby.

Why did Dr Cairns compromise the very integrity of the Coroner's Office by letting Dr Smith dictate this entire investigation ???
Why did Dr Cairns not seek an independent opinion from a qualified pathologist before abetting the continued persecution of my daughter by the CAS, especially in light of the Crown Attorney's opinion ???

Integrity

After the police investigation and the Crown Attorney's rejection of the "evidence" as being unsustainable, Dr Cairns now had a legal evaluation of the quality of Dr Smith's allegations. Since our legal system is based on the premise of innocence until proven guilty, Dr Cairns, had he been objective, had a duty to reassess the consequences of pursuing such a serious and unsustainable accusation.

Instead, being totally dispassionate and insensitive to the devastation of losing a child, and the irreparable damage of being accused of causing that beloved child's death, Dr Cairns chose to administer the coup de grace by supporting and encouraging the CAS to apprehend her yet unborn child.

April 7, 1998 - Dr Cairns met with the CAS and reaffirmed that the Coroner's Office concluded that Nicholas had died of cerebral edema due to a blunt force injury to the head, caused by the intentional actions of the mother.
At this same meeting, Dr Cairns stated that "had the child been asphyxiated (as earlier suggested as a possibility), a cerebral edema would have been noticeable, however, there would not have any bruising of the right parietal bone, which was present at the autopsy." (Exhibit 8-item 30)
Therefore, "blunt force injury to the head" was the only conclusion.

May 8, 1998 - Dr Cairns and Dr Smith met with the CAS. Dr Cairns told the CAS "in clear unequivocal terms, that the diagnosis of the death as provided in the report of Dr Smith, was correct and was supported by the Coroner's Office and that no adequate medical explanation had been provided by any member of the family for the death of the child." (Exhibit 8-item 33)
June29, 1998 - In a sworn affidavit, Dr Smith states that Nicholas died due "to blunt impact to the head, although it is possible that it was caused by asphyxia. (Exhibit 12-item78)
June 29, 1998 - Dr Cairns, in a sworn affidavit, reiterates his support for ALL Dr Smith's opinions. (Exhibit 11)
(However, Dr Cairns had told the CAS on April 7,1998 (see above) that asphyxia was no longer a possible cause of death - yet he now agrees with Dr Smith on the asphyxia hypothesis.)

June 16, 1998 - Dr Cairns, informed the CAS that the opinions put forth by Dr Halliday (Exhibit 9) " were not sustainable and that the position of the Coroner's Office had not changed relative to the cause of death." (Exhibit 10-item 6)
Dr Cairns misled the CAS (and the police) into thinking that he would be an "expert" witness in support of Dr Smith's opinions - when, in fact, he admittedly did not examine any of the physical exhibits. (Exhibit 22)
Dr Cairns exacerbated this misconception by "misrepresenting the truth" in a sworn affidavit. (Exhibit 11)

Why did Dr Cairns choose to compromise his own integrity as well as the integrity of the Chief Coroner's Office, by perpetuating, at any cost, the wrongful persecution of a grieving family ???

3 - Recklessness

Given the seriousness of a murder accusation, with all its ramifications, Dr Cairns had a moral, if not legal, duty to ascertain that the evidence was absolutely conclusive, without any element of doubt. For a full year and a half, Dr Cairns was unwavering in his support of Dr Smith's hypotheses, dismissing any professional opinions to the contrary.

In January 1999, Dr Chiasson requested that Dr Mary Case review the case. (Exhibit 20)

Dr Cairns was quoted during the fifth estate program on Nov 10, 1999:

"We indicated that we were going to hire an independent forensic pathologist from the United States, a Dr Mary Case from St Louis, and we made it known that our Office would accept whatever that independent person's report said." (Video)

Dr Cairns, until Dr Case's report, kept reaffirming, to the police and the CAS, that the Coroner's Office had absolutely no doubt that Nicholas had died of cerebral edema due to blunt force injury to the head, caused by his mother, Lianne.

Dr Cairns wanted Lianne charged with second degree murder.
Dr Cairns wanted the CAS to apprehend Lianne's new baby at birth.
Dr Cairns had no qualm in persecuting this innocent girl.

If Dr Cairns was so totally convinced of Lianne's guilt, why was he prepared to accept WHATEVER Dr Case concluded - thereby dismissing Dr Smith's speculations, the very basis for his unrelenting persecution ??
Is it Dr Cairns practice to make murder accusations based on evidentiary roulette??

CONCLUSION

Let us review the objective realities of this case:

Nicholas died suddenly on November 30, 1995.
The ER doctors reported "no sign of external head trauma" and "no sign of bruising to the body" and "no evidence of any fractures"
Two separate autopsies concluded "no external marks of violence - no bony injury - no soft tissue damage."
The autopsy revealed a swollen brain.
There was no finding of brain trauma.
No medical evidence to support abuse or inflicted injury
Cause of death could not be ascertained.

Dr Cairns' actions in this case:

Is Dr Cairns incompetent? I think not. Dr Cairns is a very articulate and convincing person. There is no evidence that would suggest that he is incompetent.
Was Dr Cairns negligent and reckless in the handling of this investigation? The evidence would suggest that he was. However, this may be too simplistic, given his subsequent support of everything (and anything) that Dr Smith espoused - even when it contradicted his own statements.
Was Dr Cairns guilty of depraved indifference? Allowing that he is not incompetent, he necessarily knew that Dr Smith's speculations were not sustainable, yet he blindly supported the unfounded accusations, being well aware of the consequences for the accused. Yet, his active participation in the promulgation of these accusations goes beyond simple indifference.

In the absence of a credible explanation, the events in this investigation would suggest a most disturbing conclusion. Logic would dictate that the only plausible explanation for Dr Cairns' actions in this case would be complicity. The evidence of prejudice, negligence, recklessness, obduracy, would support that Dr Cairns, and his partner Dr Smith, have succumbed to, and are perpetuating the child abuse hysteria. Like the Cohn/McCarthy scenario, Dr Smith identified yet another case of "child abuse" for Dr Cairns. What followed can only be construed as a "witch-hunt"

A rampant child-abuse hysteria has compromised all objective reasoning in this "war on child abuse". The child protection community has become a child abuse cult, influencing the Government and its agencies. This is evidenced by the passing of Bill 006 (An Act to Amend the Child and Family Services Act ) without any debate or opportunity for public input. This Act gives the CAS draconian powers, many in violation of basic civil rights.

For the purpose of this exercise, it is important to note that Dr Cairns and Dr Smith, in conjunction with the CAS, spearheaded the drafting of Bill 006. Dr Cairns and Dr Smith basked in the media notoriety - no doubt seeing themselves as crusaders in the eradication of all child abuse.

Please know that, without reservation, this family condemns (real) child abuse as being the most heinous and despicable of all crimes. But witch- hunts, in the name of this "noble and just cause" are equally reprehensible.

Dr Cairns clearly enunciated his philosophy on the fifth estate program:

"Children die as a result of abuse. When we have no explanation for it, we have to consider the possibility that foul play is involved." (Video)

This prejudiced philosophy dictated the direction and logic in the investigation of Nicholas' death :

Cairns/Smith Logic:

We are unable (incapable) to medically ascertain the cause of death.
The mother cannot provide an explanation why her child died
The mother was alone with her child at the time of death
Therefore, the mother caused the child's death.

Dr Cairns, without reservation, agreed with Dr Smith's opinion that Nicholas died of cerebral edema, perhaps caused by a "blunt force injury to the head" OR perhaps by asphyxia.

Dr Smith's many opinions:

"I believe that the edema of Nicholas' brain, not being caused by natural disease, could have been caused by trauma".
"It is my opinion, that none of the events given in the mother's statements are sufficient to explain his death".
"In the absence of an alternate explanation, the death of this young boy is attributed to blunt head injury".
"In the absence of a credible explanation, the postmortem findings are regarded as resulting from non-accidental injury".
"In this situation of having a devastating injury which is not explained by history and which is usually non-accidental in nature, it is accepted practice to make a summary statement such as I did".
"I cannot be absolutely certain as to the cause of the injury".
"I cannot completely eliminate asphyxia as a cause".
"Either a blunt force impact to the head or asphyxia would be by non-accidental actions of the caregiver".
"I am 99% certain (not absolutely certain) that this child died due to non-accidental trauma inflicted by the mother".

On the other hand, opinions of qualified neuropathologists and a certified Medical Examiner, with no hidden agenda:

"Nicholas did not die from the result of a cranio-cerebral injury and resulting cerebral edema." - Dr William Halliday
"The brain is devoid of tell-tale signs of trauma." -Dr William Halliday (Exhibit 23)
"I would not attribute this death to a head injury as there are no findings on which to make such a conclusion". - Dr Mary Case (Exhibit 24)
"I see many infants and young children dying from a variety of causes who have similar amounts of brain swelling". - Dr Mary Case
"Brain swelling or cerebral edema should never be used as an isolated finding to make a diagnosis of head injury". - Dr Mary Case
"I would not attribute an asphyxial mechanism to this death anymore than I would a head injury". - Dr Mary Case
At a lecture in Washington DC, Dr Case used Nicholas' case as an example of "irresponsible testimony". (Video)
"If every case of this nature was to be regarded as an example of non-accidental death, with overtones of trauma and homicide, we would be in a sorry state of affairs". -Dr Derek J Desa; (Exhibit 26);

In retrospect, it is clearly obvious that Dr Smith was out of his depth and provided Dr Cairns with totally irresponsible and flawed conclusions. It was equally as irresponsible of Dr Cairns, as Deputy Chief Coroner and a physician, not to question the speculative nature of Dr Smith's fantasy - possibly more so, since he readily endorsed and promulgated this travesty, in his capacity as a public official, in a position of trust.

Dr Cairns, driven by Dr Smith, recklessly and unjustifiably attacked a grieving mother, a mother who had lost her only child, a mother trusting the authorities to provide the answers she so desperately needed, a mother filled with pent-up love for her unborn daughter, a mother trying to claw her way back from the devastation and pain.

Dr Cairns unwarranted and reckless actions destroyed the emotional and financial health of an entire family.

In the words of one Joseph Welch to Senator Joseph McCarthy, I would ask Dr Cairns : "Have you no sense of decency, sir?"

How can the Chief Coroner's Office be objective on a premise that all parents are potential child abusers? While there may be a very small, sick, minority in our midst, there is a basic human instinct to nurture and protect our children at any cost. It is also normal for the entire community to mourn the loss of a child and to identify with the grieving parents, praying that it will never happen to them.

This same community, that despises and condemns child abusers, is equally repulsed and angered by the unjustifiable and callous attack on these grieving parents.

The Chief Coroner's Office needs to develop guidelines, a fail-safe system, to ensure that grieving parents are never again subjected to frivolously accusations - helplessly loosing a child is devastation enough.

As long as these crusaders are granted qualified immunity from personal accountability, they will continue to investigate pediatric deaths in the same reckless, sloppy and zealous manner. They will continue to expend inordinate amounts of public funds to pursue these fabricated cases - again with no accountability."


Maurice Gagnon wrote Tsubouchi on March 6, 2000;

This was an opportunity for the Ontario Government to take action, review Dr. Smith's work, and rein him in before he caused even more harm.

This, of course,was not likely, in a ministry in which then Chief Coroner Dr.James Young, Dr. Smith's protector, was also Assistant Deputy Solicitor General;

Harold Levy...hlevy15@gmail.com;

Saturday, October 25, 2008

INTERESTING PERSPECTIVE ON GOUDGE INQUIRY: COMPARED WITH A RECENT PUBLIC INQUIRY IN ONTARIO THAT FAILED;

"HOW COULD ONE INQUIRY SET RECORDS FOR EFFECTIVENESS, WHILE THE OTHER SEEMINGLY WENT AWOL IN CORNWALL? HAS THE GLAUDE INQUIRY BEEN BADLY RUN? WAS IT GIVEN AN IMPOSSIBLY BROAD TASK?"

REPORTER KIRK MAKIN: GLOBE AND MAIL;

-------------------------------------------------------------------------------

An interesting perspective on the Goudge Inquiry appears in today's Globe and Mail under the heading, "ONTARIO: GOUDGE INQUIRY VS GLAUDE INQUIRY: A tale of two inquiries - and how one lost its way."

The article, by Justice reporter Kirk Makin, bears the sub-heading, "Province cracks the whip as the examination of an alleged pedophilia ring in Cornwall, Ont., heads into a record-setting fifth year."

"CORNWALL, ONT. -- Mr. Justice Stephen Goudge is home and dry, basking in praise for his brisk and efficient year-long inquiry into the Charles Smith pathology scandal," the article begins.

"In jarring contrast, Mr. Justice Normand Glaude's much-delayed inquiry into an alleged pedophilia ring in Cornwall, Ont., is grinding on into a record-setting fifth year," it continues.

"As if to accentuate this tale of two vastly different inquiries, the province cracked the whip on Judge Glaude on Thursday, demanding that he cease hearing testimony in January and produce a final report in July.

Simultaneously, the province moved to implement all of the recommendations Judge Goudge made in September after his $9-million inquiry.

Print Edition - Section Front
Enlarge Image

How could one inquiry set records for effectiveness, while the other seemingly went AWOL in Cornwall? Has the Glaude inquiry been badly run? Was it given an impossibly broad task?

Peter Engelmann, chief counsel to the inquiry, said in an interview that a "long list" of reasons have caused his inquiry to bog down. "Did I know it would take this long?" he said. "Did I know it would cost this much? Did I know we would be criticized this much? No."

Mr. Engelmann also expressed doubt that its final report will end a bitter divide between those who allege the existence of a massive pedophile ring, and those who say that alleged victims have fabricated their stories to reap financial settlements.

"To some extent, no matter what we do, people will say this is a whitewash," Mr. Engelmann said. "People will say we got in too deep. That's inevitable."

However, the consensus of a dozen lawyers who have worked on either the Goudge or the Glaude inquiry was that, while the latter inquiry has made naive mistakes, the province shares much of the responsibility.

Its first gaffe involved setting no deadlines for the inquiry, the lawyers said. The second involved a sprawling, ill-defined mandate that instructed Judge Glaude to look at child sex-abuse cases; how police and child welfare agencies responded to reports of abuse; and to facilitate healing and reconciliation in the badly divided community.

"The mandate was, perhaps, in hindsight, overly broad or overly ambitious," Mr. Engelmann remarked.

Meanwhile, a small army of lawyers at the inquiry have mixed feelings about Judge Glaude and Mr. Engelmann. "Neither of them have the respect of most counsel," said one. "All of the problems of inquiries are exacerbated, when they are run like this one.

"The commissioner has made a series of procedural rules that bog down the process. ... Examinations-in-chief take days and days, when they could be done in one or two hours."

Mr. Engelmann pointed to the sheer number of alleged victims as a major cause of delay. "When the victims started coming in, they revealed abuse not only in the 1990s, not only in the 1980s, and not only in the 1970s," he said. "There was stuff from the 1960s and even the 1950s. It was huge."

More time was lost when Perry Dunlop, a former police officer who has been lionized by self-styled survivors of abuse, was cited for contempt of court after he refused to testify.

"We had developed some trust with a lot of survivors," Mr. Engelmann said. "The Dunlop thing divided survivors and made it much more difficult to get their support and continuing co-operation. Many of them got turned off the commission."

Mr. Engelmann conceded it would have saved time had his staff analyzed and winnowed down the 100,000 documents they obtained in advance, and had they reined in witnesses: "The commissioner is a fair man - sometimes, perhaps a bit too fair," he remarked.

Staff often worked, unpaid, into the night, only to be vilified on blog sites, at demonstrations and in poisonous e-mails.

"There are times when I leave that hearing room and I feel like I have no friends," Mr. Engelmann added. "You are accused of being biased in support of survivors. You are accused of being biased in support of an institution."

While some have criticized the fact that 13 parties were granted legal standing, Mr. Engelmann said there was no way around it. It meant an unwieldy list of lawyers lined up to interrogate each witness and regularly derailed the inquiry by challenging rulings.

Indeed, 10 of Judge Glaude's 40 rulings were appealed through the court system. "That is unheard of in a public inquiry," Mr. Engelmann said. "I sometimes wonder whether some of the counsel were less respectful to him - and his rulings - because he is an Ontario Court of Justice judge."

The $20-million that the inquiry has spent to date does not include many millions of dollars in salaries. (The Ontario Provincial Police, for example, have had three or four lawyers and two senior officers on hand who are paid out of its budget.)

However, an end is finally in sight.

"We have very strict deadlines now," Mr. Engelmann said. "It is going to be hell, but we have to do it.""

Harold Levy...hlevy15@gmail.com;

ONTARIO COURT OF APPEAL AGREES TO RE-OPEN TWO SMITH RELATED CASES INVOLVING DEATHS OF NEWBORN: LATEST MAKIN STORY; GLOBE AND MAIL;

"IN EACH CASE, EXPERT PATHOLOGISTS WHO REVIEWED DR. SMITH'S AUTOPSY WORK DISPARAGED HIS FINDINGS OF ASPHYXIA. THEY STATED THAT HE WAS WRONG TO REACH A FIRM CONCLUSION POINTING TO FOUL PLAY BASED ON SLIM EVIDENCE, AND WHEN OTHER EXPLANATIONS - SUCH AS THE INFANTS BEING DEPRIVED OF OXYGEN IN THE BIRTH CANAL - WERE POSSIBLE."

JUSTICE REPORTER KIRK MAKIN: GLOBE AND MAIL;

-------------------------------------------------------------------------------

The Ontario Court of Appeal's decision to reopen two Smith related cases is the subject of a story by Justice reporter which runs in today's Globe and mail under the heading, "Court agrees to reopen criminal cases in deaths of 2 newborns," and bears the sub-heading, "Mothers implicated by pathologist."

"An Ontario Court of Appeal judge agreed yesterday that the criminal cases of two women can be reopened to give them an opportunity to show that they were wrongly convicted of killing their newborn babies almost 15 years ago," the story begins.

""The appeal obviously has merit," Mr. Justice Marc Rosenberg said," it continues.

"The two Ontario women claim that they felt compelled to plead guilty to homicide offences after pathologist Charles Smith - at the time, the country's leading pediatric pathologist - implicated them in the horrifying deaths.

Judge Rosenberg also noted that Crown counsel Alison Wheeler, Gillian Roberts and Jennifer Woolcombe had consented to the reopening of the two cases.

In each case, expert pathologists who reviewed Dr. Smith's autopsy work disparaged his findings of asphyxia. They stated that he was wrong to reach a firm conclusion pointing to foul play based on slim evidence, and when other explanations - such as the infants being deprived of oxygen in the birth canal - were possible.

One of the women pleaded guilty to manslaughter in 1998. She received a conditional sentence and three years probation. The other was 21 when she was charged in 1992.

She pleaded guilty to manslaughter in 1994, and received a suspended sentence, three years probation and 300 hours of community service."


Harold Levy...hlevy15@gmail.com;

JUSTICE GOUDGE'S FINDINGS; PART TWO: NICOLAS' CASE; (3); MAURICE GAGNON'S COMPLAINT TO SOLICITOR GENERAL TSUBOUCHI; (FIRST PART);

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;


-------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.

Nicholas was the child of Lianne Gagnon and Steven Tolin.

Nicholas died on November 30, 1995, in Sudbury.

Nicholas was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.

The proceedings concluded on March 25, 1999 when the society withdrew the protection application;


------------------------------------------------------------------------------

Justice Stephen Goudge ruled in his report that: "Mr. (Maurice) Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the Chief Coroner's Office were legitimate. Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."

-------------------------------------------------------------------------------


Maurice Gagnon's complaint to Solicitor General David Tsubouchi, dated March 6, 2000, began as follows:

"Dr. James Cairns is, of course, the Deputy Chief Coroner of Ontario. His duties include the investigation of pediatric deaths in this province. He is also the Chairman of the Pediatric Death Review Committee. This is a position of power and authority with an inherent requirement for objectivity and non-prejudice. Unfortunately, for us, Dr. Cairns' quest to eradicate all child abuse in Ontario, has clouded his judgement, impaired his objectivity, and compromised the very integrity, and credibility, of the Office of the Chief Coroner. In the words of Justice L. Gauthier, who reviewed all of the evidence in this case, the investigation of the death of Nicholas Gagnon was "flawed" - a kind understatement."

"The facts of this investigation, and the subsequent persecution of my daughter, Lianne Gagnon-Thibeault, clearly demonstrate Dr Cairns' prejudice in the investigation of unexplained infant deaths. Because of his assumption of guilty until proven innocent, it is my contention that Dr Cairns, in his investigation of Nicholas' death,

Was negligent in fairly reviewing and assessing the actual facts of this case.
Was unduly and singularly influenced by the unsustainable opinion of his pathologist, Dr Charles Smith.
Did selectively ignore protocol and policy.
Did purposely mislead enforcement authorities.
Did demonstrate a reckless disregard for the consequences of his actions," it continued;

Dr. James Cairns: Investigator;

Webster defines "investigation" as: "a detailed examination or search, often formal or official, to uncover facts and determine the truth."

Postmortem Findings:

You now know, what the family always knew, that Nicholas' death was not "caused" by anyone. The postmortem examinations, including two autopsies, revealed no indications of violence or abuse, no injuries. He did have swelling of the brain, which, according to qualified experts, was only as much as may be expected from the process of dying.

Dr Smith, under Dr Cairns' auspices, hypothesized that Nicholas' death was "attributed to blunt head injury". His assumptions were based on suspected, inflicted Cerebral Edema supported by: (Exhibit 4)

Increased Head Circumference (caused by swelling of the brain.)
Widely Split Skull Sutures on Radiography
Fracture of the Left Side of the Mandible on radiography.
Scalp Injury (slight bump from his injury under the table)

1 - Increased Head Circumference

In a personal meeting with Dr Cairns, he told me that Nicholas' head size was compared against a standard chart for the "Head Circumference for Boys". The autopsy measurement of 49cm was over the "average" size.

Using medical records, it was later shown that Nicholas' head size, in life, was in the top 98 percentile, on that very chart - His head size at the time of his death was 49cm.

Dr Cairns knew that any chart with a "average or mean" implies lower and higher values within the limits of that chart.
As a licenced pediatrician, Dr Cairns knew that medical records would contain actual head measurements in life.
Nicholas' medical records were obtained from the family doctor by the Sudbury Regional Police under a warrant signed January 31, 1997.
As a scientist, Dr Cairns knew that the comparative data in this case was totally empirical, lacking in basic scientific principle.

The emphasis on "head size" was later abandoned and substituted with "brain weight", which of course was above the "normal average". Logically, and obviously, a heavier brain will accompany a large head.)

NOTE: The new baby (the object of the CAS frenzy) has a head size in the 102 percentile - according to the chart for girls. Using Dr Smith's logic, she necessarily has severe cerebral edema and should be dead.

Why didn't Dr Cairns, as the investigator seeking the "truth", ask for the medical records from the family doctor???

INVESTIGATOR (con't)

2 - Widely Split Skull Sutures

Dr Chen, who conducted the first autopsy, did not observe "widely split" skull sutures.

Dr Milner, who reviewed the original x-rays at the first autopsy did not see "split" sutures. Dr Paul Babyn (Hospital for Sick Children) reviewed copies of these x-rays, and informed Dr Cairns, in a letter dated January 13, 1997,(Exhibit 5), that "the skull shows mild diastasis of the coronal and sagittal sutures" ie mild opening.

Dr Cairns nonetheless preferred Dr Smith's exaggeration that the sutures were "widely split", which supported the theory of death due to severe cerebral edema, caused by "blunt force" injury to the head. (Exhibit 12 - items 16,34,62)

The Police repeatedly quoted the "widely split sutures" statement as justification for the homicide investigation.

NOTE: After reviewing all the forensic and pathological evidence, including the original x-rays, Dr Halliday concluded : "I would consider the sutures to be within normal limits. There is no evidence of widely separated sutures, as has been suggested previously." (Exhibit 23)

Dr Case stated: "I would not attribute this death to a head injury as there are no findings on which to make such a conclusion". (Exhibit 24)

Why didn't Dr Cairns , if , in fact, he was seeking the truth, question Dr Smith's exaggeration on the condition of the skull sutures, in light of Dr Babyn's letter??

3 - Fracture of the Left Side Mandible

In his letter of January 13, 1997, to Dr Cairns, Dr Babyn reported a possible fracture of the "left mandibular condyle" ie jaw. He also complained of the poor quality of the copies of the X-rays.(Exhibit 5)

After reviewing the original x-rays, Dr Babyn felt that "the mandibular changes were more likely due to technical artifact".

Dr Babyn was not asked to produce a written report of this observation.

Dr Chen and Dr Milner reported no bone damage at the original autopsy, therefore no fractured jaw.

Investigator (con't)

The "broken jaw" hypothesis was used as suggestion of physical abuse, which supported the theory of "blunt force injury to the head" (Of course there never was any damage to the jaw)

Dr Cairns totally dismissed Dr Chen's and Dr Milner's opinions in favour of Dr Smith's allegation of a "fractured jaw".
Dr Cairns ignored Dr Babyn's opinion after his review of the original X-rays.
Dr Cairns ignored the doubts expressed by the police about the very existence of a fractured jaw.
Dr Cairns used the "possible broken jaw" as justification for an exhumation, along with the "above average" brain weight.(Exhibit 12 - item26)

Why would Dr Cairns totally ignore Dr Chen and Dr Milner in favour of Dr Smith's speculations?
Why didn't Dr Cairns request a follow-up written report from Dr Babyn, after he had reviewed the original x-rays?

NOTE: It is important to remember that Dr Chen, who did the original autopsy, is a reputable pathologist, having done some 3000 autopsies, including some 100 murder cases.

Dr Cairns will claim that Dr Chen didn't follow a newly prescribed protocol for child autopsies. Allowing this to be fact, a regular autopsy by this reputable and highly qualified pathologist would have discovered something as obvious as a "broken jaw".

4 - Quality of the Evidence

Dr Cairns knows that Dr Smith has a background in anatomic pathology. Dr Smith is not a neuropathologist, nor, in fact, is he a certified forensic pathologist.

All of Dr Smith's opinions and allegations in this case were of a neurological nature. Although not indicated in his original autopsy report, Dr Smith later claimed to have consulted with a Dr Venita Jay, a neuropathologist at HSC.(Exhibit 12 -item 60)

Dr Jay, however, has no record, nor recollection of such a consultation.

Dr Cairns never questioned that Dr Smith might be beyond the limit of his expertise.
Dr Cairns blindly accepted Dr Smith's neurological allegations.
Dr Cairns never requested the opinion of a qualified neuropathologist.

Allowing that this alleged (cursory) consultation did, in fact, occur:

Why did Dr Cairns not request a written report from Dr Jay, as is required under Section 28(2) of the Coroner's Act
Given the seriousness of these allegations, why did Dr Cairns, at the very least, not seek "expert" confirmation ???

Investigator (con't)

5 - Second Autopsy

Dr Smith reported no fractured jaw - no bone damage - no soft tissue damage (Exhibit 7) In other words - no evidence of any trauma or abuse.

Dr Smith did report what he claimed to be two new findings, which he took as vindication of his "blunt force injury to the head".

"Hemorrhagic discoloration of the right parietal bone"

"Hemorrhagic discoloration along the skull sutures."

Both Dr Halliday and Dr Chen claimed that these "discoveries" were nothing more than post-autopsy artifacts. (Exhibits 9 & 13). (This opinion was later supported by Dr Case)

Dr Cairns dismissed both these opinions.(as being non-sustainable)
Dr Cairns refused to consider that an experienced pathologist like Dr Chen would not miss such an obvious finding during the original autopsy (in the presence of a police officer)
Dr Cairns never questioned why these 'injuries" were not recorded on the original X-rays.
Dr Cairns, the physician and scientist, never questioned why there was no ancillary evidence to support an injury to the "right parietal bone"

Why was Dr Cairns so eager to accept this "confirmation" of child abuse ???
With all the contradictory opinions, and the speculative nature of Dr Smith's conclusions, why didn't Dr cairns, as the Investigator seeking the "truth", ask for an independent review by a qualified neuropathologist at this point - especially in light of the seriousness of the allegation ???

NOTE: It wasn't until Dr David Chiasson, Chief Forensic Pathologist for Ontario, became aware of this travesty in late 1998, that an independent review was requested. In January, 1999, Dr Chiasson asked Dr Mary Case, ME for St Louis, MO, and expert in child abuse cases, to review Dr Smith's findings and conclusions.

Dr Case totally disagreed with Dr Smith's conclusions (Exhibit 24) and went so far as to deem Dr Smith's conclusions to be "irresponsible" (Video).

Dr James T. Cairns: CHAIRMAN OF THE PEDIATRIC DEATH REVIEW COMMITTEE

-------------------------------------------------------------------------------

Pediatric Review Committee

This committee serves as an expert review panel to investigate complex medico-legal cases. Dr Cairns, as Chairman, determines which committee member will undertake the initial review of the case, and that member (in this case, Dr Smith) then presents the case to the committee for discussion, before a final report is issued by the committee as a whole.

After Dr Smith produced his "Consultation Report", speculating that Nicholas had died as a result of "blunt head injury", Dr Cairns arbitrarily decided that this case would not be presented to the Pediatric Review Committee for discussion and review. (Exhibit 12 -item19)
Dr Cairns ignored prescribed protocol, demonstrating reckless disregard for the ramifications of such a serious and arbitrary accusation.
Based solely on Dr Smith's contradictory interpretation of existing forensic material (there were two opposing opinions at this point), Dr Cairns requested that the police initiate a homicide investigation

Why did Dr Cairns condemn Dr Chen for not following prescribed protocol, and then blatantly disregard his own protocol, as the Chairman of the Review Committee ???
Why was Dr Cairns reluctant to present Dr Smith's speculations for discussion by the Pediatric Review Committee ???
Did Dr Cairns know that an objective panel would not have supported a homicide accusation, based on this pure speculation ???
Why did Dr Cairns so badly want Nicholas' death to be a homicide ??
At the very least, why didn't Dr Cairns seek the opinion of Dr David Chiasson, Chief Forensic Pathologist, located in the same building ???

Maurice Gagnon's letter to Tsubouchi, dated March 6, 2000, was an opportunity for the Ontario Government to take action, review Dr. Smith's work, and rein him in before he caused even more harm.

This, of course,was not likely, in a ministry in which then Chief Coroner Dr.James Young, Dr. Smith's protector, was also Assistant Deputy Solicitor General;

Next Post: Maurice Gagnon's complaint to Solicitor General David Tsubouchi; Second Part;


Harold Levy...hlevy15@gmail.com;