Friday, February 29, 2008

Big Game: Part Three: Expert Evidence; The Judge As Gatekeeper;

If, in fact, the criminal justice system is little more than a "big game" in the minds of players such as Dr. Charles Smith, what must judges do to ensure there is an element of fair play?

This Bloggist's view is that the judge has to be the ultimate protector of both the accused and the integrity of the criminal justice system when it comes to so-called "expert" evidence.

It is therefore somewhat disheartening to learn from Patrick LeSage, former Chief Justice of the Superior Court of Ontario, that judges in Ontario rarely intervene in the expert witness qualification process.

Here is his explanation:

"We don't question authority enough in some occasions.

So somebody comes in as an expert, and I'm going to say that's a word I always
avoided with a -- with a jury.

I didn't refer to them as experts.

(I) referred to them -- to people who, because of their training and experience, were permitted to give an opinion, because I think even using the word expert is --
is already cloaking them with -- with a great authority, which maybe they ought not have.

Did I -- did I, or -- question the expertise sufficiently?

Did defence counsel, or Crown counsel as the case might be, question the expertise, the basis, the underpinnings of it as much as we ought to have?

In many cases, no, we didn't.

The question you ask is in part who's response -- who is responsible to see that the expertise is questioned, challenged, assessed -- accurately and thoroughly assessed, before the evidence is -- is permitted to be -- to be given.

And it -- that -- that's -- I've always found that a difficult issue, because we
have an adversary system, and we believe quite strongly in our adversary system, maybe too strongly, I'm not sure.

And as such, I tended as a judge to more like a sphinx than a -- than an activist, and I tended to sit back and allow the responsibility for the determination of the question which I'm going to have to determine, but the -- the -- providing the -- the information upon which I was to make that decision, I really left to counsel.


And if counsel didn't raise it, I probably said well it's the adversary system, I'm not the advocate for either the Crown or the defence, the plaintiff or defendant, and, so to what extent do I become the advocate, or the defender, of the qualifications of this particular witness.

I think it's fair to say, however, that there is a -- well, it's already been said, that there's a great responsibility on the adjudicator to make an informed decision, and how do you make an informed decision if the evidence has not been adduced before you?

I find that a bit of a conundrum.

Should I launch into my own questioning and inquiry?

I don't know that answer to that question.

I -- my -- by nature, because of I always believed in -- more in the passivity of a judge, I probably often didn't inquire deeply enough into the expertise.

But unquestionably, we do cloak the expert, the opinion giver, with an authority that is very often not justified."


LeSage candidly told lawyer Jeffrey Manishen that, "I regret to say that I have
probably have only rejected maybe a half a dozen proffered experts".


Asked why he rejected the evidence in those cases, LeSage replied:

And -- and what test did I use? You know, I'm not even sure what test I used.

But I -- I probably -- I probably determined they didn't have a clue about what it is that they were supposed to be testifying about.

Or they had -- I mean they had no basis. shouldn't say they didn't have a -- they had no basis upon which to come to their conclusion.

And it's -- it's -- you often see it in the -- I won't say often, you sometimes see it in the role of reconstruction, highway reconstruction issues.

You know, it's just -- it's just -- somebody's pet theory -- that's nothing more.

But I've also rejected it in matters of art experts, and I can't remember what -- what else.

But I -- although I probably fell into it."


To this humble Bloggist, Justice Lesage's exlanation covers only one half of the story.

The other half is that some judges, like some other actors in the criminal justice and some journalists, bought into the myth of the great, reliable forensic pediatric pathologist Dr. Charles Randal Smith, and failed to do their job.

I discussed a prime example of this phenomena in an earlier posting, entitled: "Smith's credibility boosted in courtroom, Mullins-Johnson's lawyers claim":


"Lawyers for William Mullins-Johnson claim in a factum filed in the Ontario Court of Appeal that Dr. Charles Smith's credibility as boosted not only by himself and other witnesses but by the prosecutor and the trial judge," the Blog began.

"Dr. Smith’s appearance at the trial undoubtedly made a powerful impression on the jury, and it was his opinion that enabled the jury to conclude that there was physical evidence of Valin’s murder having occurred while she was being sodomized," it continued.

Firstly, before Dr. Smith was called, the Crown asked Dr. (Bhubendra) Rasaiah (the pathologist who presided over Valin's autopsy: director of pathology at the General Hospital in Sault Ste. Marie) about him:

Q. And who is [Dr. Charles Smith]?

A. Doctor Charles Smith is the professor of pediatric pathology, and he’s a nationally known figure on forensic pathology.

Q. Okay Doctor, thank you.


During his presentation of his resume to the jury, Dr. Smith was asked:
Q. Sir, how many people do the specific type of work that you do?

A. At the hospital do you mean?

Q. At the hospital or perhaps throughout Canada.

A. Okay. At the hospital there are, there are three of us.

I do the majority of the work and if I’m not there someone has to stand in my place, so, I do that.

The pediatric forensic pathology unit is unique.

We are not aware or the Chief Coroner is not aware that there is in existence anywhere in North America such a unit.

So because of that I probably do a little bit more of this kind of work than anyone else in the country. (emphasis added)


In his closing, the Crown summarized Dr. Smith’s seemingly impeccable credentials:

You look at Doctor Smith. Who is Doctor Smith?

Well, you saw him on the stand.

Of all of them, I mean, you take a look at this guy’s curriculum vitae, that’s just a fancy way of saying all his qualifications, and you see what that fellow has done and you see the type of things that he’s dealt with, and he tells you over here that, you know, he deals now with pediatrics and Sick Children’s Hospital, and the types of cases he does and the number of it he does, and he does that exclusively dealing with children, and you see the type of qualifications he has but, how did he get involved?

He got involved because there’s a program called SCAN, Suspicious Child Abuse and Neglect.

And Rasaiah sends that down to him because he sees suspicious child abuse.

So he sends that down to that SCAN team, and they send it to somebody there and it’s a Doctor (Marcellina) Mian, and because the child is dead they call in Doctor Smith.

And that’s what he does, and that’s how he gets involved.


In the midst of giving his damning opinion about the recent injury to Valin’s rectum, Dr. Smith claimed that he was “trying to be a little conservative or a little cautious here.”

He made similar claims elsewhere in his testimony when, in fact, his opinion was far more radical than that of any of the other experts.

But appearances can be deceptive, and the Crown felt able to present him to the jury in his closing as a knowledgeable person, a down to earth person that was able to explain things and a person that knew and was pretty fair about answering questions...

The trial judge made comments during Dr. Smith’s evidence that made it clear that he had been impressed by Dr. Smith’s presentation.

Thus, in response to an objection by defence counsel to a question put by the Crown to Dr. Smith, the trial judge said:

THE COURT: I sense this witness exercising himself considerably to be objective and to be professional and I do not have any concern about the form of the question in the context of the evidence I have heard so far. But thank you, Mr. (TG) O’Hara (Mullins-Johnson's trial lawyer).

At the conclusion of Dr. Smith’s testimony, the trial judge said:

THE COURT: Doctor, I believe firmly in the adversarial system so I am not going to interfere with it except to say that I thank you for coming. I know you are busy, I know there were problems - -


It was unfortunate that Dr. Smith’s credibility was boosted in these ways..."

(End of portion from factum);

William Mullins-Johnson was wrongly convicted of first-degree murder and sentenced to life imprisonment for a sexual assault and murder which never occurred.

There are important lessons here for both judges and prosecutors.

Harold Levy; hlevy15@gmail.com;

Thursday, February 28, 2008

"Big Game" Part Two: A Mere Pawn?

THE PAWN (♙♟) IS THE WEAKEST AND MOST NUMEROUS PIECE IN THE GAME OF CHESS, REPRESENTING INFANTRY, OR MORE PARTICULARLY ARMED PEASANTS OR PIKEMEN.

WIKIPEDIA DEFINITION;

If Dr. Charles Smith regarded himself as a player in a "big game" the next question becomes, well, what position was he playing?

Smith's answer to a question posed by Commission Counsel Linda Rothstein was, "I kind of felt like a pawn in a chess game."

Wikipedia defines a pawn as, "the weakest and most numerous piece in the game of chess, representing infantry, or more particularly armed peasants or pikemen."

Dr. Smith, who's penchant for being unable to accept responsibility for his actions and to point his finger at others, is portraying himself as a mere piece on the board who is controlled by more powerful players.

I personally find this hard to swallow for several reasons;

First, as previously noted, after Dr. M.J. Phillips, his superior in the Pathology Department at the Hospital for Sick Children in Toronto came up with the idea of establishing a forensic pediatric pathology unit at the hospital, it was Dr. Smith who actually got the paper work in place and got the unit off the ground. (See earlier posting: "The rise of Dr. Charles Smith: Two basic questions; Feb. 11, 2008);

This would have involved budgeting, planning, coordination and knowledge of the workings of the hospital and of government;

It was not what you would have expected from a mere pawn.

Secondly, Dr. Smith oozed a sense of his own power;

This was extremely evident to me when I interviewed him for a story on several complaints that had been made against him to the Ontario College of Physicians and Surgeons;

"Dr. Smith also told the Star that he found it ironic that while he was being pilloried at home, "Here at the American Academy of Forensic Sciences people are coming up to me getting my opinion on cases because they view me as one of the world's experts," the story said.

Lastly, unlike helpless pawns on the board, Dr. Smith was well-connected.

Indeed, he boasts in a note to former chief coroner Dr. James Young, that he is supported by the province's Solicitor General of the day - and he had an open door to Dr. Young and other senior officials in the Chief Coroner's office.

Mere pawns don't consort with kings.

Dr. Smith would not agree with lawyer Peter Wardle's suggestion that, "(if) there was a game and if you were a player, you certainly were not a pawn, Dr. Smith. You were one of the most important pieces on the board."

"That's your view. That's -- that has never been my view. And at this point in time, I don't know how I could -- how I could reconsider, but certainly, at the time that this occurred and on previous occasions, your view and mine of my role are -- are not synoptic," he replied.

Harold Levy; hlevy15@gmail.com

Wednesday, February 27, 2008

It Was All A Big Game To Dr. Smith: Part One;

Dr. Charles Smith does not deny that he may have told a young girl present in court that the criminal justice system was "all a big game".

That is evident from his evidence at the Goudge Inquiry under cross-examination by by lawyer Peter Wardle who represents six families or caregivers affected by his opinions.

Here is the transcript: (Jan. 31, 2007)

MR. PETER WARDLE: And this is the cross-examination by Ms. (Cindy) Wasser, and do you recall that Ms. Wasser acted for one (1) of the accused in that case?

DR. CHARLES SMITH: Yes, yes.

MR. PETER WARDLE: And it begins:
"Doctor, yesterday while you were in
Court, did you notice a very young girl
sitting in the Court during the day?

A: There were two (2) or three (3)
that were in here during the course of
the day.

Q: And one (1) with long brown hair in
a gray suit, did you notice her?"
There was an objection, and then Ms. Wasser says:
"Did you approach the young lady after Court in the hallway?

A: I spoke to a student who was
sitting on the north side of the aisle
as I was leaving, yes.

Q: And this was a girl with long brown
hair?

A: Could be.

Q: And what did you say to her?

A: I don't remember.

Q: Did you ask her if she had enjoyed
the day?

A: I could have.

Q: And did she respond that she found
it was interesting?

A: I don't remember the conversation.
She should have.

Q: --"

DR. CHARLES SMITH: Could have.

MR. PETER WARDLE: "She could have," I'm sorry.

DR. CHARLES SMITH: Mm-hm.

MR. PETER WARDLE: "Q: Did you then say to her that you
found that this was all a big game?

A: I might have; I have no idea.

Q: You might have said that?

A: I might have".


Dr. Smith also acknowledged under cross-examination by Wardle that he viewed himself as playing on the prosecution's side in this big game, as the following portions of the transcript makes clear:

MR. PETER WARDLE: We had an interchange 11 yesterday, sir, at the beginning of examination, and I asked you some questions about "the chess game" of the
Judicial System, do you recall that?

DR. CHARLES SMITH: Yes.

MR. PETER WARDLE: And this is what you said to me at one (1) point: "Do you recall saying to us that on Monday, that at the beginning you thought your role was to support the Crown?" This is at page 192 of the transcript from
yesterday, by the way.

"Dr. Smith: Yes, yes, that's certainly
in the '90's was the -- was the
impression that I had, yes.

Q: As -- and as I took down your
evidence you said that later on you
understood that your role was to be
more impartial, that you were poor in
executing.

A: Yes, I believe that's correct.

Q: Do you agree, in retrospect, from
some of the admissions you've made this
week that you continued throughout to
take on that role of supporting the
Crown's case?

A: Yes, I -- I recognize that I have
made that error."


Sadly, by his own admission, Smith's determination to help the Crown the game affected the manner in which he presented his evidence in Sharon's case - where he tenaciously advanced his position that the child died as a result of stab wounds - as opposed to dog bites.

MR. PETER WARDLE: Do you agree now that our role in this case; your definitive opinion at the beginning; your definitive opinion to the police; your definitive opinion after the defence began raising the dog theory, and your definitive evidence at the preliminary inquiry.

Do you recognize that this was one of those cases where, as you told us yesterday, you -- you made that error of continuing throughout to take on the role of supporting the Crown's case?

DR. CHARLES SMITH: Once the -- once the issue -- I -- I recognize that my testimony in Court was -- was concrete. I -- I don't know how else to express
the fact that I recognize that error nor do I know how better I can explain what may have been the basis of that mistake.


I can hardly imagine how Sharon's mother and the other families and caregivers affected by Dr. Smith must have felt to learn that the man who appeared on the witness stand to be so professorial, neutral and disinterested saw his role as helping convict them and put them in jail.

It may have been a big game to Dr.Smith, but to them - good people who were mourning the loss of beloved children - the stakes included prison, loss of other children to the authorities, humiliation, and pariah status in their communities.

Out of fairness to Smith, he may not have been the only one who failed to understand his role in the criminal justice system - prosecutors were at fault as well.

As the Supreme Court of Canada ruled in the landmark Boucher case:

"It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.

Counsel have a duty to see that all available legal proof of the facts is presented: it should be clone firmly and pressed to its legitimate strength but it must also be done fairly.

The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.

It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the just?ness of judicial proceedings."


To this Blogster it appears that even as the evidence of Smith's incompetence kept mounting, the province's prosecutors kept calling him up to the plate time after time to go to bat for them

Something is very wrong with that picture.

Next posting: It was all a big game for Dr. Smith: Part Two; Was he a mere pawn as he claims?

Harold Levy...hlevy15@gmail.com;

Monday, February 25, 2008

Dr. Smith's Character: The Nasty Side: Part Two; How Low CanYou Go?

Previous postings relating to Dr.Smith's character detailed the famed pathologists attempt to intimidate an Ontario Provincial Police Officer who pulled him over for speeding not to give him a ticket - and his denigration of the work of experts who disagreed with his opinion from the witness box.

But to this Blogster nothing demonstrates Dr. Smith's nasty nature as much as the message he communicated to the Kawartha Children's Aid Society in the context of the Waudby case on May 6, 1999;

Here is some background.

Brenda Waudby had been charged with second-degree murder in connection with the death of her two and a half year-old daughter Jenna based on Dr. Smith's opinion that Waudby had exclusive access to the child at the time the fatal injuries were inflicted.

However, numerous experts consulted by both the Waudby's defence lawyer and prosecutor Brian Gilkinson - including Dr. Sigmund Ein, a staff surgeon at the Hospital for Sick Children) - concluded, to the contrary that the injuries had been inflicted on Jenna shortly before her death, while she was under the exclusive control of J.D. her teenage male babysitter.

An Overview Report on Jenna's case prepared by Goudge Inquiry staff, notes that around the time Smith spoke to the Childrens Aid Society official, Gilkinson had begun thinking, after meeting with Ein, that the murder charge should be withdrawn

(During that meeting Ein had told Gilkinson that he was ninety-nine percent certain, based on the autopsy findings, that the fatal injuries occurred after five o'clock on
the day of Jenna's death - on the babysitter's watch);

The Overview Report also indicates that at the time of what lawyer Peter Wardle referred to as the "famous" meeting with Dr. Ein, Brenda Waudby was about to have another child , and that she did, in fact, gave birth to a son, who immediately became the subject of an apprehension proceeding.

Under cross-examination by Wardle, Smith acknowledged that he was was aware that Gilkinson was considering withdrawing the murder charge when he spoke with the Children's Aid official - after the baby had been born and there had been a first court appearance on the child apprehension proceedings.

Wardle's cross-examination proceeds as follows:

MR. PETER WARDLE: So let me just read (the note on Kawartha Children's Aid letterhead H.L.) it to you, sir. It -- it says:

"Addendum to B.B. note, re. telephone call with Dr. C. Smith on May 6."

You can just see that faintly above the word "Smith".

DR. CHARLES SMITH: Yes.

"When Dr. Smith was advised that there was a possibility of [and this is Ms. Waudby's baby] returning home, he replied, 'Well, I guess I'll be doing his autopsy too'."


Let's stop here for a second.

Brenda Waudby has been charged with murder based on Dr. Smith's now suspect opinion of the time when the fatal injuries were inflicted.

It must be apparent to Dr. Smith that he may have caused a wrongful prosecution in which an innocent mother has been arrested for murdering her very own baby daughter, has been put through utter hell, and now the authorities are contemplating seizing her new-born child.

However, instead of reflecting on where he went wrong and how all this could have been avoided, he continues to characterize her as a murderer and is doing his best to convince the Children's Aid Society that Brenda's newly born son is at risk.

It gets worse.

We know now, based on evidence called at the Inquiry, at the moment he was passing on his ugly message to the Children's Aid Society, he had in his possession a dark, curly, male-type hair which he had removed from Jenna's sexual organs during the autopsy and kept untested in his personal possession.

Since he is now aware that Brenda Waudby may be innocent, surely he must have recognized that someone else must have committed the brutal crime - and that person (most likely J.D. the teenager who had exclusive access to Jenna at the time the injuries were inflicted) is still at large.

(The Overview Report indicates that J.D. ultimately was arrested, charged with murdering Jenna and sexually assaulting her, and ultimately pleaded guilty to manslaughter in connection with the brutal crime);

What was going on in Dr. Smith's mind at the time?

Did he lash out against Waudby during his conversation with the Children's Aid official, because he was a sore loser - and could not tolerate his opinion being contradicted successfully by other experts, who he undoubtedly perceived as his inferiors?

Could it have been that he continued to believe Waudby was guilty - in spite of the contrary opinions - because, as his notes filed at the Inquiry suggest, he believed Waudby, a single mother, lived a life-style which pre-disposed her to the crime?

Lawyer Wardle had some pointed questions for Smith about his conversation with the Children's Aid Society official;

MR. PETER WARDLE: Now just pausing there, sir, does that give us some sense of the inner Dr. Charles Smith and your approach to these kinds of cases?

DR. CHARLES SMITH: No. I'm -- I have no recollection of this, and I'm -- and -- and I'm embarrassed by this.

MR. PETER WARDLE: Well, would -- would it be fair to say that you're embarrassed by it, because it suggests that not only had you pre-judged the criminal charge that was before the court --

DR. CHARLES SMITH: No, I had never pre-judged the criminal charge on that case. Never.

MR. PETER WARDLE: But you were also --

DR. CHARLES SMITH: Never.

MR. PETER WARDLE: -- you were also making a sweeping characterization about what would happen to this newborn baby?

DR. CHARLES SMITH: The -- the comment is a -- is -- is one that I shouldn't have made. There are other comments in there which -- which may adequately reflect some of my concerns about -- about a child.

The comment that I made in quotes is -- is one that I shouldn't have made. But I never -- never pre-judged any -- any possible person in Jenna's death...

I always recognized that there was a range of possibilities in which the fatal injury could have occurred, and I never ruled out the possibility of an
earlier injury on pathologic grounds."


Embarrassed?

What does that mean?

To this Blogster it suggests that Dr. Smith is embarrassed that someone kept a record of his ugly remarks, that he was caught, and that it gives the public a glimpse into his dark soul.

Embarrassed?

Why couldn't he have just said: "I'm sorry Mrs. Waudby."

Harold Levy: hlevy15@gmail.com;

Sunday, February 24, 2008

Dr. Smith's Character: The Nasty Side: Part One: A Tendency to Cut Up Other Experts - So To Speak;

From time to time this Blog has taken a look at Dr. Charles Smith's character as demonstrated through the evidence called at the Goudge Inquiry.

One of the prime indicators of a rather nasty side was Dr. Smith's apparent confrontation with an Ontario Provincial Police Officer after being pulled over at night for speeding in which he made a big deal with the officer about how important he was - and threatened to cut off his office's services to dead children in the area if she persisted in giving him the ticket.

The officer was so upset about the incident that her superior brought it to the attention of Dr. James Young, who was then Ontario's chief coroner. (See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police Letter): Parts One to Four: December, 2007);

Another indicator of a nasty side is his attitude to some of his counter-parts in the world of pathology, as revealed from court transcripts.

Like Dr. Sukrita Nag, for example.

Dr. Nag is the neuro-pathologist who performed the autopsy on baby Dustin at Kingston General Hospital on November 18, 1992;

Here is what Dr. Smith had to say about Dr. Nag at the Dustin's father's preliminary hearing on charges of manslaughter and failure to provide the necessities of life.

"This is a botched autopsy," Doctor Smith told Court.

"The report of this autopsy, the paper that this autopsy is written on is not worthy of filing as an exhibit.

It should be filed in the garbage can.

I'm sorry to say it, but I would not accept this report from a resident in pathology. I don't care who signed their name to it.

It is wrong from the word "go."

If you look at the demographics on this report, the information is wrong.

Whoever signed this report either did not read the hospital chart, did not read the report before they signed it or they did not care.

I don't know which of those explanations is correct."


Dr. Smith also told the defence lawyer that he would say these things directly to Dr. Nag if she were present in court.

Something is very wrong with this picture.

Dr. Smith could have drawn the judge's attention to defects in Doctor Nag's work - as was his job - without humiliating her publicly by suggesting it was garbage.

Here was Dr Charles Randal Smith, ho has been criticized by independent experts for the sub-standard quality of his autopsy reports in numerous cases, chastising a colleague who had been assigned the solemn task of performing an autopsy on a deceased child.

Having attacked the professional competence of Dr. Nag, Dr. Smith then went on to lie under oath about Judge Patrick Dunn - the judge who had severely criticized his work in the Amber case - saying that Judge Dunn "in fact told me on more than one occasion -- private conversations -- how hasty he was with the work I had done and others had done, at the hospital."

(Dr. Smith acknowledged during his evidence at the Goudge Inquiry that this alleged conversation with Judge Dunn never occurred.)

Dr. Smith agreed with Commission counsel Linda Rothstein that his characterization of his colleagues work was "uncharitable."

In cross-examination by lawyer James Lockyer, who represents nine families affected by Dr. Smith's work, at the Goudge Inquiry, Smith also acknowledged that his characterization of Dr. John Plunkett in courtroom testimony was "uncharitable".

Dr. Plunkett's views on the harm that can be caused by accidental falls differed significantly from Dr. Smith's

Lockyer cited the following cross-examination of Dr. Smith;

"Are you aware of the work of a Dr. John Plunkett in this area?

Yes.

Do you know him personally?

No.

Just his work then?

Yes.

Have you reviewed his work?

I've seen his papers.

Do you have an opinion on his papers with respect to the force that may cause injury from an accidental fall?

I'm aware of a paper published recently that dealt with that, yes.

And do you agree with his findings?

No, I don't know anyone who does."


Dr. Smith told Lockyer that although he did not remember the specific testimony, "I do accept that this is what I said."

Let's put this in context;

Dr. Smith - who was a highly respected expert witness - (often referred to as the top forensic pediatric pathologist in the country) - had the right to say that he disagreed with Dr. Plunkett's findings.

But he went beyond that to state that Dr. Plunkett's work had been rejected by every other expert in the country, if not the world.

In short he denigrated Dr. Plunkett's work, by treating him as a pariah, whose opinion''s were not worth considering.

Not nice.

Dr. Plunkett was not the only researcher who Dr. Smith denigrated.

There was also Dr. Charles Ferguson - a Winnipeg expert who was one of the many defence experts in the Amber case who took strong issue with Dr. Smith's conclusions that Amber had been shaken to death.

Judge Dunn was extremely impressed by Dr. Ferguson's evidence;

"Turning now to the Canadian specialist called by the defence. Dr. Charles
Ferguson graduated in medicine in 1957, and he's been a pediatrician since 1968,"
Dunn said in his decision on the Amber case;

"He's currently Director of the Child Protection Centre in Winnipeg Children's Hospital.

Dr. Ferguson has lectured on the mechanics of injury. I consider Dr. Ferguson to be an expert in forensic investigation.

This amazing man, and I say so with great respect, has testified in court proceedings over one thousand one hundred (1,100) times.

I was very impressed by his experience, by his careful method of approaching new or
dubious evidence; by his common sense and by his fairness in looking at all
sides of an issue."


But to Dr. Smith, Dr. Ferguson was merely "an expert from Winnipeg who's regarded as a 'paid mouth'."

As the following transcript of evidence from the Goudge Inquiry shows, Lawyer Lockyer was infuriated by Dr. Smith's characterization of the Winnipeg researcher.

MR. JAMES LOCKYER; Do you remember saying that, sir?

DR. CHARLES SMITH: I don't remember, but I recognize that that was uncharitable, yes.

MR. JAMES LOCKYER: Outrageous, isn't it, an outrageous thing to say? It's not just uncharitable. I'm not going to let you get away with that.

DR. CHARLES SMITH: That was certainly a view that was -- that was held of him, but it's un --

MR. JAMES LOCKYER: By you.

DR. CHARLES SMITH: -- uncharitable. I am -- well, I held that view, yes. You could ask others.

MR. JAMES LOCKYER: Well, perhaps I should ask Justice Dunn.

DR. CHARLES SMITH: The -- no, you keep going with your questions. I was going to --

MR. JAMES LOCKYER: Mm-hm, mm-hm.

DR. CHARLES SMITH: I was going to sort of try and understand your question here, but keep going, I'm sorry. Well, I -- I acknowledged that my testimony was not helpful.The issue as to Shaken Baby Syndrome in this case is an issue that I think many people could debate for years.

MR. JAMES LOCKYER: What does that mean? our testimony was not helpful: What on earth does that mean? You -- you mean -- doesn't it simply mean that your testimony had the potential to lead to a miscarriage of justice? "Unhelpful" is an odd word to
use, Mr. Smith.

DR. CHARLES SMITH: No, I -- I believe that that's a correct word.

MR. JAMES LOCKYER: Mm-hm.

DR. CHARLES SMITH: I certainly recognize that --

MR. JAMES LOCKYER: All right.

DR. CHARLES SMITH: -- I was dogmatic and defensive, yes..."
;

Dr. Smith has acknowledged in his evidence that he believed his duty was to help the prosecution win the case.

How dare he suggest in court that Dr. Ferguson was a hired gun?

Dr. Smith's ultimate degradation of a colleague while giving evidence in court would appear to be his comments on Dr. Rex Ferris, his nemesis.

Dr. Ferris is a forensic pathologist, whose opinion that Sharon had been savaged by a dog - and not by stab-wounds from knives and scissors as Smith had opined - had helped exonerate the child's mother.

The transcript of lawyer Lockyer's cross-examination of Dr. Smith about his characterization of Ferris to the Court tells all - including his failure to mention his involvement with Ferris in Sharon's case and his provision of misleading information about Ferris to the Court;

MR. JAMES LOCKYER: And then at the bottom of this page, sir, you're asked about Dr. Ferris:

"Are you aware of Dr. Rex Ferris?

Yes.

Do you respect Dr. Ferris' work?

No.

And may I ask why not?

I don't know anyone in the area of pediatric forensic work in Canada who respects his work in the area of pediatric forensic work."

At line 15:

"Is there perhaps, Dr. Smith, a publication or a particular case in which you've been involved in that leads you to say you don't respect Dr. Ferris' work?"

Your answer to that should've have been, Yes, shouldn't it, don't you think?

DR. CHARLES SMITH: Well --

MR. JAMES LOCKYER: Sharon's case.

DR. CHARLES SMITH: I'm...

MR. JAMES LOCKYER: But you didn't say that, did you?

DR. CHARLES SMITH: I -- I had not --

MR. JAMES LOCKYER: Chances are the cross-examiner wouldn't have know about Sharon's case at this point in time, but you sure did -- and Dr. Ferris' involvement in it.

DR. CHARLES SMITH: I'm sorry, what's your question?

MR. JAMES LOCKYER: I say your answer to that question --

DR. CHARLES SMITH: Mm-hm.

MR. JAMES LOCKYER: -- should have been "yes". Is there, perhaps, a publication or a particular case in which you've been involved in that leads you to say you don't respect Dr. Ferris' work?

DR. CHARLES SMITH: I -- I answered it as best I --

MR. JAMES LOCKYER: Mm-hm.

DR. CHARLES SMITH: -- remembered it at that time.

MR. JAMES LOCKYER: Well, let's see how you answered it:

"My struggle with the question, Your Honour, is whether it will get me in trouble legally if I answer it.

Q: What kind of trouble? Liable and slander, says the Court." And then the Court says: "Is there something you can have an intellectual disagreement with while still respecting another doctor's ability so it wouldn't be considered to be some kind of professional attack?" And you said: "Obviously, I know Rex Ferris." And then you say: "I mean James Ferris is his proper name, and I've known him for twenty 20) years. I've never seen him give an opinion on a pediatric case in which
I think he is close to reasonable. He doesn't practice pediatric forensic pathology." There's a real irony to that, isn't there, because nor did you? And then you go on: "He was excluded from doing so in British Columbia for many years before he lost his position in pediatric forensic pathology in British Columbia." nd that's simply not true, is it, sir.

DR. CHARLES SMITH: No, that's what I understood.

MR. JAMES LOCKYER: He just changed positions. He just moved on in his life.

DR. CHARLES SMITH: No, that's not what I -- what I was referring to, as best I can recall.

MR. JAMES LOCKYER: "And his knowledge of pediatric pathology, in general, is not of a level that I think he has any special expertise in the area." I mean as you read this kind of statement by you now, sir, under oath, it must make you shiver,
17 doesn't it? Like you could be describing yourself, couldn't you? You could say -- you -- you'd say that about yourself now. You have no special expertise in the area; any more than anyone else.

DR. CHARLES SMITH: No, I believe I have expertise in pediatric pathology, in general.

MR. JAMES LOCKYER: Now you're talking bout pediatric forensic pathology, sir; that's the -- that's the phrase that you've been using, isn't it, as you testify?
Do you see that? line 4, line 7, right? And then you say at line 15 "I just happen to think that in pediatric forensic pathology, I have no respect for Dr. Ferris' opinions. I cannot give you any statements about his work in adult forensic pathology. It's the area that was car -- his career and he worked in that for
decades before retiring, but in the pediatric realm, I do not respect his opinions though he is a very nice man."

MR> JAMES LOCKYER: Do you remember saying that, sir, about this man?

DR. CHARLES SMITH: No, I don't, but I read it, and I accept that I made those statements.

MR. JAMES LOCKYER: To me, that just shows the arrogance of yourself, sir, in the days that you were testifying as a purported pediatric forensic pathologist, am I right?


DR. CHARLES SMITH: I -- I do not interpret that to be arrogance.

MR. JAMES LOCKYER: Mm-hm.

DR. CHARLES SMITH: I was asked an opinion. I was asked a question about Dr. Ferris. I answered it truthfully, but very uncharitably and unkindly, but I answered truthfully the question that I was asked."


Dr. Smith's willingness to disparage genuine forensic pathologists and others who disagree with him tells us a great deal about his character.

But it is the fact that he disparaged them from the witness box when he was selling the Crown's case - with the risk that an innocent parent or caregiver could be sent to jail - that disturbs me the most.

This is about more than Dr. Smith's assault on the reputation of some professionals.

It's about miscarriages of justice - and how easily they can be caused;

Next posting: Dr. Smith's character: The nasty side; Part Two;

Harold Levy...hevy15@gmail.com;

Can Dr. Smith's Evidence To Inquiry Be Used In A Criminal Prosecution?

Several of our readers have asked me whether the evidence Dr. Smith gave to the Goudge Inquiry could be used against him in a criminal prosecution.

When this question arises I usually point out that the purpose of the Inquiry is not to make findings of civil liability or criminal culpability - but rather to find solutions to a badly broken system of forensic pediatric pathology in Ontario.

But the question is relevant because Dr. Smith asserted the protection of Section 9 of the Public Inquiries Act to a written statement he filed with the Commission as well as to his oral testimony at the outset of his testimony.

Since I have no expertise in this area, I turned to my friend Professor Alan Young, of the Osgoode Hall Law School at York University, for his views on the issue.

Alan is the author of a timeless book entitled "Justice Defiled: Perverts, Potheads, Serial Killers, and Lawyers", published by Key Porter books in 2003;

How can you not be drawn into a book which says in its preface: "I've done my time in the criminal -justice industrial complex, and I should have walked away from this dying beast. But I felt compelled to write this book, and acting on compulsion will have its costs. Exposing the idiocy of lawyers and judges does not bode well for maintaining a successful career in law. Neither law nor religion takes kindly to ridicule. Painting a picture of hypocrisy and stupidity within a sacred institution can only lead to my being shunned as a heretic...So let the heresy begin."

Can anyone think of another "sacred" Canadian profession worthy of Prof. Young's pen?

Hmmmmmm!

Back to Prof. Young's views on the scope of the immunity:

"The answer is not always simple but the general rule in Canada is that a witness at an inquiry is protected by use immunity (i.e. the evidence cannot be directly used in another proceeding and derivative use immunity (i.e. any evidence found or derived directly from the testimony)," he explains.

"In Canada we do not give transactional immunity (immunity from all charges - so Smith can still be charged if evidence is collected without reliance upon his testimony) (also it is not always clear if derivative use immunity is required but use immunity would be the bare minimum required to comply with the Charter s7 & 13;)"

Whether there is any basis for charging Dr. Smith criminally, say for perjury or obstructing justice, is, of course, another question.

I will leave that one where it belongs - with the police and the prosecutors;

Harold Levy; hlevy15@gmail.com;

Saturday, February 23, 2008

Part Two: Dr. Smith's C.V. The Dumbing Down of Dr. Charles Randal Smith;

"DR. CHARLES SMITH: BUT, EXCUSE ME, MR. WARDLE, THE -- THE START OF YOUR QUESTION WAS: DID I NOT APPRECIATE THAT? I THINK IT -- DID I NOT APPRECIATE THAT IT WAS MY ROLE TO BRING THE CONTROVERSY FORWARD? AND THE -- AND SO I DON'T WANT TO WALK AWAY FROM THIS, BECAUSE I THINK THIS MAY BE HELPFUL, NOT ONLY IN UNDERSTANDING THIS CASE, BUT MAYBE MORE GLOBALLY.

WAS -- IN FACT, NO I DID NOT UNDERSTAND THAT ROLE. NO ONE EVER -- HAD EVER TOLD ME. IT HAD NOT CROSSED MY MIND AT ALL. I ADMIT THAT THAT WAS -- THAT THAT EXPRESSES A POSITION OF IGNORANCE ABOUT -- ABOUT MY ROLE IN THE -- IN THE JUDICIAL SYSTEM, BUT THE REALITY IS NO, I HAD NO IDEA, AND NO ONE EVERY TOLD ME.

NONE OF MY COLLEAGUES TOLD ME. I'M NOT AWARE THAT MY COLLEAGUES ALS(0) -- DID THAT EITHER. AS I -- AS WE DISCUSSED TESTIMONY AFTER TRIALS WERE OVER AND TRIED TO SORT OF HELP UNDERSTAND FROM EACH OTHER WHAT WENT ON, NONE OF US, TO THE BEST OF MY RECOLLECTION, EVER WENT INTO COURT WITH PAPERS THAT REPRESENTED BOTH SIDES OF THE CONTROVERSY.

SO I PLEAD IGNORANCE ON IT. I REALIZE IT WASN'T HELPFUL, BUT -- BUT THAT IS -- I WAS DOING WHAT I THOUGHT WAS TO BE DONE."

DR. CHARLES SMITH EXPLAINS TO LAWYER PETER WARDLE THAT NO ONE EVER TAUGHT HIM THAT AN EXPERT IS REQUIRED TO TELL THE JUDGE OR JURY THAT THERE IS AN OTHER SIDE TO THE ISSUE IN FORENSIC CIRCLES - AND NOT JUST HIS SCIENTIFIC OPINION.

Dr. Charles Smith's testimony at the Goudge Inquiry and the information he has communicated about himself in his curriculum vitae bear no relationship to each other.

Indeed, they are polar opposites.

As will be seen, he presented himself at the Inquiry as a pathologist who decided to do some forensic work that no one else wanted to do, taught himself a few things about forensic science, and did his best given his lack of training.

But in his C.V., which he prepared for use in Court, Dr. Smith portrays himself as a well-qualified forensic scientist, who has great understanding of science, as well as the justice system, and who is widely published and steeped in research.

What is going on here?

Here is my theory:

Dr. Smith's testimony is geared towards the barrage of lawsuits that are piling up against him with a potential liability of millions of dollars to the medical insurer.

There are currently at least three lawsuits before the court - those launched by Brenda Waudby, Sharon's mother, and Tyrell's mother.

A fourth lawsuit will ultimately be launched by William Mullins-Johnson, who spent more than twelve years in penitentiary as a result of Smith's opinion which turned a natural death into first-degree murder.

Others are bound to follow suit.

Now that the Ontario Court of Appeal has rejected that he cannot be sued because of a common law principle of absolute witness immunity, Dr. Smith's lawyers - and his insurers - must be thinking about the standard of care which he was expected to adhere to during the performance of his duties.

If he can successfully argue that the standard of care is minimal - because it was not uncommon for pathologists such as himself to dabble in forensic work at the time - the ultimate to the insurers will be minimal.

(Dr. Smith's oft-repeated refrain that he has committed errors" and "mistakes" - rather than out right negligent acts - also seems to this humble Blogster to be part of a damage control operation in contemplation of civil suits).

It might be useful to examine Dr. Smith's testimony at the Inquiry, while bearing this theory in mind.

First, his responses to questions posed by Jane Langford, his lawyer;

MS. JANE LANGFORD: Dr. Smith, over the
3 course of your ten (10) or so years of medical training,
4 did you ever have occasion to work with a certified
5 forensic pathologist?

6 DR. CHARLES SMITH: No.

7 MS. JANE LANGFORD: And in that time, Dr.
8 Smith, did you receive any training or participate in any
9 discussions about the role of an expert witness in Court
10 proceedings?

11 DR. CHARLES SMITH: No...

MS. JANE LANGFORD: You joined the staff
15 of the Hospital for Sick Children as a full-time
16 pathologist in 1981?

17 DR. CHARLES SMITH: I did.

18 MS. JANE LANGFORD: And, so Dr. Smith, am
19 I right that by the time you joined the staff of the
20 Hospital for Sick Children as a full-time pathologist,
21 you had had virtually no exposure to criminally
22 suspicious death investigations?

23 DR. CHARLES SMITH: That's correct.

24 MS. JANE LANGFORD: And you had virtually
25 no exposure to certified forensic pathologists?25

1 DR. CHARLES SMITH: I had no exposure to
2 certified forensic pathologists.

3 MS. JANE LANGFORD: Do you recall this
4 being a concern of yours at the time?

5 DR. CHARLES SMITH: No.

6 MS. JANE LANGFORD: Why not?

7 DR. CHARLES SMITH: I was -- I was
8 following the practice pattern of -- of the more senior
9 colleagues in my department, and, so my -- my experience
10 was the same as -- as theirs.
11 It was the same as -- as I understood, of
12 the other pediatric pathologists in Ontario who were
13 doing coroner's cases. I had no knowledge or
14 understanding that there was any value added in forensic
15 pathology. That thought didn't cross my mind, and
16 certainly no one suggested it did.

17 MS. JANE LANGFORD: Did you know any
18 forensically-trained pathologists practising in a
19 pediatric setting at that time?

20 DR. CHARLES SMITH: No...

MS. JANE LANGFORD: You joined the staff
15 of the Hospital for Sick Children as a full-time
16 pathologist in 1981?

17 DR. CHARLES SMITH: I did.

18 MS. JANE LANGFORD: And, so Dr. Smith, am
19 I right that by the time you joined the staff of the
20 Hospital for Sick Children as a full-time pathologist,
21 you had had virtually no exposure to criminally
22 suspicious death investigations?

23 DR. CHARLES SMITH: That's correct.

24 MS. JANE LANGFORD: And you had virtually
25 no exposure to certified forensic pathologists?25

1 DR. CHARLES SMITH: I had no exposure to
2 certified forensic pathologists.

3 MS. JANE LANGFORD: Do you recall this
4 being a concern of yours at the time?

5 DR. CHARLES SMITH: No.

6 MS. JANE LANGFORD: Why not?

7 DR. CHARLES SMITH: I was -- I was
8 following the practice pattern of -- of the more senior
9 colleagues in my department, and, so my -- my experience
10 was the same as -- as theirs.
11 It was the same as -- as I understood, of
12 the other pediatric pathologists in Ontario who were
13 doing coroner's cases. I had no knowledge or
14 understanding that there was any value added in forensic
15 pathology. That thought didn't cross my mind, and
16 certainly no one suggested it did.

17 MS. JANE LANGFORD: Did you know any
18 forensically-trained pathologists practising in a
19 pediatric setting at that time?

20 DR. CHARLES SMITH: No...

MS. JANE LANGFORD: You joined the staff
15 of the Hospital for Sick Children as a full-time
16 pathologist in 1981?

17 DR. CHARLES SMITH: I did.

18 MS. JANE LANGFORD: And, so Dr. Smith, am
19 I right that by the time you joined the staff of the
20 Hospital for Sick Children as a full-time pathologist,
21 you had had virtually no exposure to criminally
22 suspicious death investigations?

23 DR. CHARLES SMITH: That's correct.

24 MS. JANE LANGFORD: And you had virtually
25 no exposure to certified forensic pathologists?25

1 DR. CHARLES SMITH: I had no exposure to
2 certified forensic pathologists.

3 MS. JANE LANGFORD: Do you recall this
4 being a concern of yours at the time?

5 DR. CHARLES SMITH: No.

6 MS. JANE LANGFORD: Why not?

7 DR. CHARLES SMITH: I was -- I was
8 following the practice pattern of -- of the more senior
9 colleagues in my department, and, so my -- my experience
10 was the same as -- as theirs.
11 It was the same as -- as I understood, of
12 the other pediatric pathologists in Ontario who were
13 doing coroner's cases. I had no knowledge or
14 understanding that there was any value added in forensic
15 pathology. That thought didn't cross my mind, and
16 certainly no one suggested it did.

17 MS. JANE LANGFORD: Did you know any
18 forensically-trained pathologists practising in a
19 pediatric setting at that time?

20 DR. CHARLES SMITH: No...

MS. JANE LANGFORD: And as your career
23 progressed, Dr. Smith, and you became more focussed on
24 pediatric forensic pathology, why did you not pursue any
25 more specific forensic training?

1 DR. CHARLES
SMITH: It never occurred to 2 me that it was of value.

3 MS. JANE LANGFORD: Did anyone suggest to
4 you that you ought to pursue more specific forensic
5 training?

6 DR. CHARLES SMITH: No.

7 MS. JANE LANGFORD: And sitting here
8 today, Dr. Smith, with the benefit of hindsight, how
9 would you describe your forensic pathology education and
10 training?

11 DR. CHARLES SMITH: It was self-taught.
12 It was minimal. And retrospectively, I realize it was
13 woefully inadequate...


Dr. Smith; My experience in the 1970s and 1980s,
5 which Dr. Pollanen wouldn't have had, would indicate to
6 me that that statement was equally correct then. There
7 was seemingly no recognition that, within pediatric
8 forensic pathology, there was a significant input or
9 value from the -- or to consider cases from the
10 perspective of forensic pathology. The emphasis was on
11 the pediatric side; the pediatric diseases and
12 understanding pediatric disorders that could cause sudden
13 death, for instance.

14 MS. JANE LANGFORD: And prior to the
15 publication of the results of the review conducted by the
16 Office of the Chief Coroner, Dr. Smith, did you recognize
17 that there were significant gaps in your basic forensic
18 pathology knowledge?

19 DR. CHARLES SMITH: Well, I knew there
20 were gaps, but those gaps I didn't believe were of
21 concern. For instance, I knew that I didn't know gunshot
22 wounds, but gunshot wounds are not a problem in pediatric
23 pathology here.
24 I knew that I didn't know the toxicology
25 of drug abuse, but that, again, is not a topic of -- of relevance, and so while I understood that there were
2 areas I didn't know, I didn't understand that there were
3 areas of ignorance that -- that bore on the pediatric
4 forensic work.


Now take a look at his responses to questions posed by Commission Counsel Linda Rothstein:


MS. LINDA ROTHSTEIN:
The thing that you've
3 fastened on mostly, as I hear it, sir, is the lack of
4 expertise and formal training; the extraordinary gaps in
5 your knowledge -- as you just put it to your counsel --
6 in forensic pathology; that would be one (1) of the main
7 reasons you would see that explains what went wrong here,
8 is that fair?

9 DR. CHARLES SMITH: I believe -- I
10 believe that's a very significant factor, yes.


Finally, it may be useful to consider Dr. Smith's response to a question posed by lawyer Peter Wardle as to why he did not tell court that there was "controversy" among pathologists in on the subject matter in question - and that an expert must fully present the judge or jury with the fact that there is "another side."

DR. CHARLES SMITH: But, excuse me, Mr.
24 Wardle, the -- the start of your question was: Did I not
25 appreciate that? I think it -- did I not appreciate that it
1 was my role to bring the controversy forward? And the --
2 and so I don't want to walk away from this, because I
3 think this may be helpful, not only in understanding this
4 case, but maybe more globally.

5 Was -- in fact, no I did not understand
6 that role. No one ever -- had ever told me. It had not
7 crossed my mind at all. I admit that that was -- that
8 that expresses a position of ignorance about -- about my
9 role in the -- in the judicial system, but the reality is
10 no, I had no idea, and no one every told me.

11 None of my colleagues told me. I'm not
12 aware that my colleagues als(o) -- did that either. As I --
13 as we discussed testimony after trials were over and
14 tried to sort of help understand from each other what
15 went on, none of us, to the best of my recollection, ever
16 went into court with papers that represented both sides
17 of the controversy.

18 So I plead ignorance on it. I realize it
19 wasn't helpful, but -- but that is -- I was doing what I
20 thought was to be done.


Let's pause now and contrast Dr. Smith's professed "ignorance" of the most basic his testimony in court - where his testimony could send an innocent parent or caregiver to jail for life as the murderer of their child.

At William Mullins-Johnson's trial for the first-degree murder of his 4-year-old niece Valin, for example, Dr. Smith was asked about the forensic work he did at the Hospital For Sick Children;

"Okay. At the Hospital there are three (3) of us. I do the majority of the work, and if I'm not there someone has to stand in my place, so I do that," he replied.

"The Pediatric Forensic Pathology Unit is unique. We're not aware, or the Chief Coroner isn't aware that there's an existence anywhere in North America, such a unit. So because of that I probably do a little bit more of this
kind of work than anyone else in the country."


We can see how he has placed himself at the top level of forensic pathology in North America with this testimony.

As the case against Mullins-Johnson rested entirely on the scientific evidence, faced with this evidence - so contrary to the way in which he portrayed himself to the Goudge Inquiry - Mullins-Johnson was doomed.

(In Kenneth's case, Smith told the jury that, "The vast majority of my work is in
pediatric forensic pathology)."


It is also useful to compare Smith's professed ignorance of all things forensic to the way in which other participants in the criminal justice system saw him.

For example, the prosecutor involved in an Ohio murder case where Dr. Smith testified, latter praised Smith in a letter he sent him, saying, "I along with my colleagues, found your work in this case to be truly outstanding. I can well imagine that pediatric forensic pathology must rank among the most unpleasant fields of medicine in which to practice, but society is indeed fortunate that a man of your calibre has chosen to do so."

Also consider a senior officer's description of Dr. Smith's delivery of his evidence to the court in the Ohio case;

"He was great in front of the jury," recalled (Detective John) Nethers, who was stunned to learn yesterday that Smith is now the subject of an inquiry,"...when Dr. Smith was on the stand, everybody in the courtroom seemed interested in what he was saying and was paying attention."

I will leave it to our readers to contrast Dr. Smith's self-deprecating testimony to the inquiry with his description of himself in his C.V. which was prepared for use in Court and his evidence in court as to his lofty qualifications;

To this Blogster, his testimony wreaks of damage control and self interest.

It is exactly the kind of testimony one would expect from a man who would sue the Saskatoon Regional Health Board for wrongful dismissal for emotional stress - so that the Board's resources can be spent on him - rather than on the patients it serves.

A final note: That Board, under Chair person Darlene Eberle - did its job to protect the public from Dr. Charles Randall Smith (for which it got sued!) and deserves praise for its efforts - unlike the Ontario institutions such as the Hospital For Sick Children and the Chief Coroner's Office, which left the public at risk;

Harold Levy...hlevy15@gmail.com;

Friday, February 22, 2008

Smith Sues Health Board That Fired Him: Part Two; The Tribunal's Ruling; When The Law Is An Ass;

"COUNSEL FOR DR. SMITH SUBMITS THAT A PERSON IS PRESUMED INNOCENT UNTIL PROVEN GUILTY AND THAT BY STATING THAT NEGATIVE PUBLICITY IS A REASON FOR DENYING THE APPOINTMENT, THE BOARD “IS ESSENTIALLY STATING THAT IT BELIEVES THE STORIES (IN THE ONTARIO PAPERS) – AND BY IMPLICATION THAT HE MUST BE GUILTY OF SOMETHING”."

-----------------------------------------------------------------------------------
"WE DO, HOWEVER, WANT TO MAKE IT CLEAR THAT AS PART OF OUR DECISION WE FIND THAT DR. SMITH WAS EMINENTLY QUALIFIED FOR THE APPOINTMENT HE WAS SEEKING AND THAT THE BOARD OF THE SRHA, IN DENYING HIS APPOINTMENT, ACTED UNREASONABLY AND UNFAIRLY TOWARDS DR. SMITH."
------------------------------------------------------------------------------------

FROM ADMINISTRATIVE TRIBUNAL'S RULING THAT DR. SMITH WAS TREATED UNFAIRLY BY THE SASKATOON REGIONAL HEALTH AUTHORITY;

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

RE: THE MATTER OF AN APPEAL PURSUANT TO
S. 45(1) OF THE REGIONAL HEALTH SERVICES ACT AND S. 8(1) OF
THE PRACTITIONER STAFF APPEALS REGULATIONS WITH RESPECT TO
THE DENIAL OF THE APPELLANT’S APPLICATION FOR PRIVILEGES
BEFORE THE BOARD OF THE SASKATOON REGIONAL HEALTH AUTHORITY
BETWEEN:
DR. CHARLES SMITH, APPELLANT AND:
SASKATOON REGIONAL HEALTH AUTHORITY,
RESPONDENT
DECISION OF THE PRACTITIONER STAFF APPEALS TRIBUNAL;


Gary Bainbridge appeared and acted on behalf of the Appellant
Evert Van Olst appeared and acted on behalf of the Respondent;

A. INTRODUCTION;

This is an appeal by Dr. Charles Smith, the Appellant, pursuant to Section 45(1) of The Regional Health Services Act (“the Act”) of a decision of the Saskatoon Regional Health Authority (“SRHA”), the Respondent, made on December 15, 2005, and confirmed on February 22, 2006, denying Dr. Smith’s application for a locum tenens appointment to the Medical-Dental Staff of the SRHA.

The basis for the SRHA’s decision is set out in correspondence dated December 23, 2005, addressed to Dr. Smith from Darlene Eberle, the chairperson of the SRHA:
“Based on the totality of the information we received, we have considered the potential for negative public perception of your appointment in Saskatoon and determined that your appointment would compromise the reputation, integrity and credibility of the Saskatoon Health Region and its processes for the credentialing of physicians, thereby undermining public trust and confidence.

Maintaining public trust and confidence is a legitimate and essential responsibility of the Authority. This is achieved in part by ensuring that individuals are not appointed to the Medical-Dental Staff in circumstances where there is a reasonably held perception of possible malfeasance, not merely confirmation of any wrong doing. As a Regional Health Authority, we must exercise our responsibility and right to determine what level of risk is acceptable in weighing this type of decision where there is obvious uncertainty at the present time.

Given that the Chief Coroner’s Office of Ontario is currently investigating many of the cases you were involved in, the Saskatoon Regional Health Authority determined that that investigation provides sufficient potential for negative public perception. Therefore, your application for appointment to the Medical-Dental Staff of the Saskatoon Health Region is denied.”

In correspondence dated February 22, 2006, addressed to Dr. Smith, Ms. Eberle advised him of the outcome of the Authority’s reconsideration of its earlier decision (which was carried out at the request of Dr. Smith):
“Having again considered your application for a temporary locum tenens appointment, the Authority remains of the view that the application must be denied for the reasons outlined in our letter to you of December 23, 2005, which we confirm.

Additionally, the continued negative media focus on you reinforces the potential for negative public perception should your appointment be granted. While we again acknowledge that the accuracy of the media reports remains unknown, we also note that you are currently not in a position to be able to respond to the allegations in a public context and, as such, we, together with the public, are left to await the results of the investigations in Ontario.

Further, your application is for a temporary locum tenens position. As confirmed in the materials prepared by Dr. Murray and submitted on your behalf, such was for the purpose of covering the clinical duties in Anatomic Pathology at Saskatoon City Hospital while Dr. Murray assumed the position of Acting Head of the Department of Laboratory Medicine/Pathology. The particular purpose for the contemplated appointment has now passed as Dr. Murray has concluded his position as Acting Head and a new Head will be commencing on a permanent basis shortly.

In these circumstances, the Saskatoon Regional Health Authority is of the view that it would neither be prudent nor in the advancement of public trust in the Authority to grant your application at this time.”

A Notice of Appeal dated March 22, 2006, sets out Dr. Smith’s grounds of appeal:
“3. THAT the appeal is taken on the following grounds:

A. The Board’s decision is perverse and without evidentiary foundation having ignored or failed to consider the material evidence touching upon the application of the Appellant for Locum Surgical Pathology Privileges, more particularly as follows:
i. The Board ignored or refused to consider the recruitment needs of the Pathology Department in Saskatoon including the excessive workload, difficulty recruiting and high turnover rate of pathologists to the Region, and poor morale within the Department.

ii. The Board ignored or refused to consider the report of the Head of Pathology at City Hospital who, for a period of three months, observed and directly supervised the work of the Appellant, confirming his outstanding level of skill and standard of care in surgical pathology, his outstanding interpersonal skills with other health care providers, and his overall positive impact upon the morale within the Pathology Department;

iii. The Board ignored or refused to consider the recommendations of the Medical Advisory Board and Credentialing Committees notwithstanding that these Committees have the necessary expertise and technical knowledge to screen and assess the Appellant’s qualifications and background including his history, reputation, interpersonal skills and expertise in surgical pathology, and did conduct such screening and assessment before recommending that the Board grant Locum Surgical Pathology Privileges;

B. The Board, through its representatives, recruited the Appellant to the Saskatoon Health Region to assume a position on September 7, 2005 as a surgical pathologist in Saskatoon, and thereafter refused to grant Locum Surgical Pathology Privileges notwithstanding that the Appellant is eminently qualified as a surgical pathologist;

C. The Board acted in an arbitrary fashion and without jurisdiction by relying upon inflammatory media coverage surrounding the Appellant’s work in forensic pathology notwithstanding that the content of such publications is hearsay, unreliable, and unrelated to his application for Locum Surgical Pathology Privileges;

D. The Board, in focussing upon media coverage surrounding the Appellant’s work in forensic pathology, ignored or disregarded its duty of fairness to evaluate the Appellant’s application for Locum Surgical Pathology Privileges fairly and objectively;

E. The Board acted without jurisdiction by considering Investigatory Reports prepared by a Complaints Committee of the College of Physicians and Surgeons of Ontario in response to two complaints respecting the Appellant’s work in forensic pathology (hereinafter referred to as the Reports) which Reports are prohibited from use in other proceedings pursuant to section 36(3) of The Regulated Health Professional Act, 1991. The Board, in disregarding the statutory prohibition on the use of the Reports, compromised the integrity of the provincial licensing system for physicians and undermined the role of the licensing body. Although the Reports concluded that there was no evidence to support disciplinary or competency proceedings and found that the Appellant had met the standard of care expected of a forensic pathologist advising a coroner’s office, the Board focussed on the critique and criticisms of practise issues in forensic pathology to support its adverse ruling in respect to the application for Locum Surgical Pathology privileges.”

In the Notice of Appeal, the following relief is sought by Dr. Smith:
“F. THAT the Appellant requests the following relief:

a) to set aside the decision of the Board and to grant the application of the Appellant for temporary locum tenens appointment to the Medical Dental Staff of the Saskatoon Health Region in the Department of Laboratory Medicine.”
At the conclusion of this appeal hearing and in the brief of law submitted by Dr. Smith’s counsel, the relief sought is expanded to include the following:

“98. Accordingly, the Appellant respectfully requests the following relief:
1. That the Board’s decision of December 23, 2005, as confirmed by its decision of February 22, 2006, be quashed in its entirety;

2. That the Appellant be appointed to the Saskatoon Heath Region in the same capacity, with the same privileges, and under the same locums contract (amended mutatis mutandis) for the balance of the one year term;

3. That the appointment shall become effective on the date the Appellant provides proof of his Saskatchewan licensure, unless otherwise agreed upon between the parties; and

4. That the Appeal Tribunal retain jurisdiction to address any issues arising from the implementation of this decision.”
Page 6

B. JURISDICTION OF THE TRIBUNAL
The jurisdiction of this Tribunal is derived, in part, from Section 45(1) of the Act which provides:

“45(1) A person who is aggrieved by a decision of a regional health authority or an affiliate made in relation to the following matters may, in accordance with the regulations, appeal the decision to a tribunal established by the regulations:
(a) the appointment of the person to the practitioner staff or the reappointment, suspension or termination of appointment of the person;
(b) the disciplining of the person as a member of the practitioner staff;
(c) the granting of privileges to the person as a member of the practitioner staff, or the amending, suspending or revoking of privileges granted to the person.”
Pursuant to Section 64 of the Act, the Practitioner Staff Appeals Regulations (“the Regulations”) were enacted which provide, inter alia:
“8(1) A practitioner who is aggrieved by a decision of a board with respect to a matter set out in subsection 45(1) of the Act may appeal that decision to the tribunal by serving a notice of appeal on the tribunal and a copy of the notice of appeal on the respondent within 30 days after the day on which the practitioner is served with a copy of the decision.”
……….
“11(1) An appeal to the tribunal shall be conducted as a hearing de novo.
(2) At a hearing, the appellant and the respondent have the right to appear before the tribunal and may, at their own expense, be represented by counsel.”
……….
“12(1) At a hearing, the tribunal may accept any evidence that it considers appropriate and is not bound by rules of law concerning evidence.”
This is the first appeal hearing pursuant to the Regulations and accordingly the question arises as to what is contemplated by Section 11(1) of the Regulations when it directs that the appeal shall be conducted as a hearing de novo.

Counsel for Dr. Smith submitted that the Tribunal is to decide this matter afresh on the evidence presented to it at the appeal hearing.

Counsel for the SRHA, on the other hand, submitted in its brief of law that the Tribunal “should focus its review on the process utilized by the Board and not the merits of its decision…and determine whether the Appellant was provided with the due process envisioned by the statutory scheme and the specific Medical Staff Bylaws…..Alternatively, if the panel believes that it can address the merits of the decision, it is submitted that deference be given to the Board’s decision.”
On the basis of the limited case law dealing with the meaning of a de novo hearing, we have concluded that the approach proposed by Dr. Smith’s counsel is the correct one.

In R. v. Dennis [1960] SCR 286, at p. 325, Mr. Justice Ritchie of the Supreme Court of Canada explained the difference between an appeal and an appeal de novo:
“On the other hand, the distinction between “an appeal by holding a trial de novo” and an appeal to the provincial Court of Appeal is that although the object of both is to determine whether the decision appealed from was right or wrong, in the latter case the question is whether it was right or wrong having regard to the evidence upon which it was based, whereas in the former the issue is to be determined without any reference, except for purposes of cross-examination, to the evidence called in the Court appealed from and upon a fresh determination based upon evidence called anew and perhaps accompanied by entirely new evidence. [emphasis added]”

This passage was adopted in Saskatchewan (dealing with an appeal to the Saskatchewan Police Commission) in Hnatchuk v. Saskatchewan Police Commission [1982] S.J No. 186 (Sask. Q.B.).

Accordingly, we have concluded that the nature of this appeal is to make a determination of whether the Board’s decision was right or wrong based upon the evidence presented at this appeal hearing.

Having accepted the submission of Dr. Smith’s counsel, however, we are also cognizant of the discretion given to Boards such as the SRHA Board when making decisions concerning appointments to the medical staff.

Counsel for the SRHA submitted that it is well established in law that an appointment to a medical staff is a privilege and not a right and cites M. v. Hospital Board Cereal Municipal Hospital District (1946) 3 W.W.R. 669 (Alta. Supreme Court) and Henderson v. Johnson (1959) S.C.R. 655 (S.C.C.) as support for this proposition.

Moreover, counsel cited Jain v. North and West Vancouver Hospital Society (1974) 43 D.L.R. (3rd) 291 as support for the principle that it is a matter of discretion on the part of management (or the Board, in this case) to make such an appointment. In the exercise of that discretion, the Board should not be unreasonable, arbitrary, capricious or discriminating.

Counsel for Dr. Smith, while noting that the SRHA Medical-Dental Staff Bylaws do not provide specifically that the Board has a discretion to approve or reject appointments, concedes that the Board must have some discretion. But, counsel also submits, “having discretion” does not mean that one can deny an appointment “just because” – that discretion must be exercised judicially, untainted by, for example, irrelevant considerations.

As support for this latter proposition, counsel for Dr. Smith cites Cameron v. East Prince Health Authority [1999] P.E.I.J. No. 44 (P.E.I.S.C.) in which the following summary of the law in this area was set out:

“(v) The legal nature of patient admitting privileges
¶ 37 Although participation on a hospital medical staff is viewed at law as a privilege rather than a right, the interplay of interests involved creates the obligation on hospital boards to make their decisions judicially and pursuant to a fair process.

¶ 38 Sharpe, The Law & Medicine in Canada (2nd ed.) at pp. 255-257 addresses the nature of hospital medical staff privileges and the administrative law ramifications thereof. Appreciation of the duty of a board toward an applicant and toward a board’s other constituencies, and of the appropriate approach by a court on review of a board exercise of authority, involves an appreciation of the nature of hospital privileges.

¶ 39 This subject is sometimes highly controversial, because it involves not only hospitals and the medical profession, but governments, which pay for services, and citizens, who require services. Hospitals are historically and generally corporate entities, although in this province they now appear and function substantially as government agencies. Hospitals are charged with the
responsibility of providing care to patients.

In the discharge of that responsibility they feel morally and legally obligated to choose carefully those who will provide the care. A doctor licensed to practise in a province may find it difficult to accept that a license does not include the right to care for patients in hospitals financed by public funds. As well, a patient may find it incongruous that his or her doctor, who practises in the community where the hospital is located cannot continue to care for the patient once he or she enters hospital.

¶ 40 The question of whether membership on a hospital’s medical staff is an absolute right has been settled before the courts. Absent statutory direction, it is not. A hospital board has authority to exclude a practitioner if it has a good reason for doing so. But, this right is not unfettered. [emphasis added]
……….
¶ 44 The courts have specifically rejected as inappropriate some factors in relation to the granting of privileges.

These include: age, where evidence is not adduced as to physical incapacity for the doctor to meet his or her obligations as a staff member; conduct inconsistent with the spirit of collegiality that is imperative in a hospital environment, where there was evidence that the doctor had a tendency to “go it alone” but the court found a poor standard of practice in his field was not shown; where conflicts with the doctor were handled by “corridor meetings” with no record of proceedings and no follow-up; where there was selective consideration of documentation, particularized by giving full weight to negative comments and failing to take into account certain favourable comments and giving short shrift to the doctor’s extensive training and publications. These cases point to the need for a board as decision-making body to adhere to the principles of fairness, to thoroughly investigate allegations, and to be directed by appropriate criteria. [emphasis added]”

We accept the above submissions as a correct description of the law and of the limitations on the discretion of the Board when making such appointments. We also conclude that although this is an appeal de novo – and accordingly we are to determine this matter on the basis of the evidence before us – an important consideration when determining whether the decision of the Board was right or wrong is to take into account whether the Board properly exercised its discretion.

C. PRELIMINARY MATTERS – ADMISSIBILITY OF EVIDENCE

At the outset of this appeal hearing, Dr. Smith’s counsel indicated that he objected to copies of two (2) decisions of the Complaints Committee of the Ontario College of Physicians and Surgeons being submitted as evidence at this appeal hearing by counsel for the SRHA.

As will be discussed in greater detail in the Evidence portion of this decision, copies of two (2) decisions of the Complaints Committee dealing with Dr. Smith were forwarded by individuals to the Chief of Staff of the SRHA and the Vice-President of Medical Services of the SRHA in October, 2005. Although these decisions were considered by the Board of the SRHA in its decision making process concerning Dr. Smith’s appointment, counsel for Dr. Smith objected to these same decisions being considered by this Tribunal at this appeal hearing.

A final ruling on this matter was reserved pending this written decision of the Tribunal.

At the appeal hearing, counsel for Dr. Smith drew the Tribunal’s attention to Section 36(3) of The Regulated Health Professions Act of Ontario, which provides:
“Evidence in civil proceedings
(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. 1991, c.18, s. 36(3); 1996, c. 1, Sched. G, s. 27 (2).”

Counsel for the SRHA submitted, and counsel for Dr. Smith conceded, this Ontario statute applies to proceedings in Ontario – not Saskatchewan.

However, as counsel for Dr. Smith noted, we have similar (although not identical) provisions in Saskatchewan contained in Sections 60(2) and 60(5) of The Medical Profession Act, 1981:

“60(2) No witness in a legal proceeding shall be asked any question about proceedings before or by, or information or evidence given to, a committee appointed by the council for the purpose of investigating and studying matters
relating to morbidity, mortality or the cause, prevention, treatment or incidence of disease, but the witness is not excused from answering questions or producing documents that he is otherwise bound to answer or produce.”
……….
“(5) All proceedings of a committee described in subsection (2) shall be held in camera, and all information and evidence given to that committee in any proceedings shall be treated by the committee and its members as confidential, and, in any report or publication by the committee or a member of that committee relating to its investigations and studies, the names of the physicians or podiatric surgeons and patients connected in any way with the matters under investigation and study shall not be disclosed.”

According to counsel for Dr. Smith, the principle of judicial comity should be applied by this Tribunal to exclude the two (2) written decisions of the Complaints Committee. Judicial comity has been defined as:

“Principle in accordance with which courts of one state or jurisdiction give effect to laws and judicial decisions of another state out of deference and respect, not obligation.”

Counsel for Dr. Smith submitted that we would expect the Ontario courts to uphold the provisions of The Medical Profession Act, 1981 in any proceedings in Ontario and we, in turn, should uphold Section 36(3) of The Regulated Health Professions Act of Ontario and not permit the decisions of the Complaints Committee of the Ontario College of Physicians and Surgeons to be used at this appeal hearing.

In response, counsel for the SRHA submitted that judicial comity refers to the “court” – not an administrative Tribunal – of one jurisdiction respecting the laws of another jurisdiction. Accordingly, the principle has no application in this circumstance.
Moreover, counsel for the SRHA drew attention to Section 12(1) of the Regulations, which provide that this Tribunal may accept any evidence that it considers appropriate and is not bound by any rules of law concerning evidence.

Finally, counsel for the SRHA submitted that no objection was made by counsel for Dr. Smith to the use of these two (2) decisions at the Board meeting of the SRHA on December 7, 2005, when the Board first heard representations from Dr. Smith’s counsel as to why Dr. Smith should be granted the appointment/privileges he was seeking (and prior to the Board voting on whether to accept or reject Dr. Smith’s application).

Having made the above submissions, counsel for the SRHA voluntarily agreed to only deal with and ask questions about the disposition of each of the Complaints Committee’s reports/decisions. This concession by counsel for the SRHA appeared to have lessened the concerns of Dr. Smith’s counsel.

Given all of the above, this Tribunal considers that the first matter in determining whether to admit certain evidence is whether it is relevant to the case at hand. Dr. Smith’s competency to practice pathology is a relevant issue in this appeal.
The second matter to determine is whether there is a clear rule which would exclude the evidence. In this case, there is no clear cut rule excluding the evidence which counsel for the SRHA wishes to introduce.

Accordingly, given our broad powers in Regulation 12(1) to accept any evidence that we consider appropriate (and without deciding whether the principle of judicial comity extends to administrative Tribunals), we have concluded that the disposition portion of each of the two (2) Complaints Committee’s reports (which do not identify any of the parties to the complaint, any patient’s names or the nature of the complaint) may be admitted as evidence.

D. EVIDENCE/FACTS

The evidence at this hearing consisted of the testimony of the Appellant, Dr. Smith; Dr. Henrike Rees, a pathologist employed by the SRHA; Dr. Barry Maber, a former vice-president of the SRHA; Dr. Bruce Murray, a pathologist employed by the SRHA; and Darlene Eberle, chairperson of the SRHA, together with a substantial amount of documentation submitted by both counsel.

The evidence/facts as to what occurred leading up to and including the decision made by the SRHA are not, for the most part, in dispute.

1. In June of 2005, Dr. Bruce Murray, who was at the time a pathologist employed by the SRHA, learned that he would be appointed as the acting head of the Department of Laboratory Medicine for a period of approximately one (1) year commencing July 1, 2005. Because he would be giving up performing his clinical duties in his new role, he required a pathologist to backfill his clinical duties on a temporary basis.

2. Dr. Smith, who was at the time employed at the Hospital for Sick Children in Toronto, was asked by Dr. Murray (via his wife who had met Dr. Murray at a conference) to contact him about the available position. Dr. Smith, who was the subject of some media coverage in Ontario and was interested in moving to Western Canada, contacted Dr. Murray, a former medical school classmate, by e-mail to indicate his interest in the position. In the e-mail, Dr. Smith referenced the media coverage.

3. On June 29, 2005, Dr. Smith telephoned Dr. Murray as a follow-up to the e-mail. There were some differences between Dr. Smith and Dr. Murray as to what was discussed during this call.

Dr. Murray testified that Dr. Smith indicated a desire to leave Ontario in order to move forward in his career. He also recalls Dr. Smith indicating that he wanted to end up in British Columbia eventually, but that he wanted to practice in a “backwater” location for a time in order to get out of the “spotlight”.

Dr. Smith, on the other hand, testified that returning to Saskatoon, where he attended medical school, was desirable. Dr. Smith also recalls that Dr. Murray expressed his hope that Dr. Smith would start in the locum tenens position but eventually “slide into” a permanent position as a pathologist with the SRHA in the succeeding months.

Dr. Murray did not testify as to any promises – express or implied – made to Dr. Smith about a permanent position.

What both Dr. Smith and Dr. Murray do agree upon, however, is that in this telephone conversation, they agreed to work jointly to ensure that Dr. Smith could obtain the locum tenens position. It was anticipated that Dr. Smith would commence working in his new position at the beginning of September, 2005.

4. Dr. Smith also testified that in this telephone conversation he advised Dr. Murray that complaints had been made against him to the College of Physicians and Surgeons in Ontario, but that they had been dismissed. He further advised Dr. Murray about media coverage concerning his work in a number of forensic pediatric cases.
The Coroner of Ontario had also recently indicated that there would be a review of forty-four (44) of Dr. Smith’s cases in the interests of maintaining public confidence.

5. The Medical-Dental Staff Bylaws of the SRHA describe both the categories of Medical-Dental Staff appointments and the process for obtaining such appointments.
Of relevance to this appeal hearing are the following categories of appointments:

“5.10 Locum Tenens
A physician or dentist seeking an appointment as a locum tenens must submit a completed application at least six (6) weeks before the locum tenens begins. The applicant is eligible for an appointment only if the applicant meets the requirements of an Associate Staff Appointment.”

“5.5 Temporary Appointment
5.5.1 The Chief of Staff may, after conferring with the SDHB medical department head, grant a temporaryappointment to a physician or dentist who is not a member of the medical-dental staff of the Corporation, after verification of the applicant’s licensure and proof of liability coverage from either the Canadian Medical Protective Association or an equivalent agency.

The extent and duration of a temporary appointment shall be stated, and the member of the medical-dental staff shall act under supervision of the SDHB or agency medical department head.

A temporary appointment shall be granted for a specific purpose and for a specified period of time.

5.5.2 Physicians, or Dentists requesting a temporary appointment must satisfy the requirements for appointment to the Associate staff category, except for individuals who bring special expertise in a life threatening situation and under extraordinary circumstances.

5.5.3 A temporary appointment may, subject to Section 5.5.1, be granted to a physician or dentist duly registered to practice medicine or dentistry in the Province of Saskatchewan:
• whose application for ap
pointment is pending, and when all the necessary procedures have been completed but not yet approved by the Board;
• when the teaching aims of the SDHB medical department make such temporary privileges desirable; or
• in other circumstances where deemed appropriate.
5.5.4 All temporary appointments granted shall be reported to the Medical Advisory Committee and be presented to the Board for approval.”
6. The process for obtaining appointments to the Medical-Dental Staff can be summarized as follows:

Firstly, the applicant must submit an application indicating the department that he wishes to join and the privileges that he is seeking. The application must be accompanied by three (3) character references, a certificate of good
standing from the applicant’s current licensing body, proof of liability insurance and evidence of a current license with the Saskatchewan College of Physicians and Surgeons.

Secondly, upon receipt of the above described documentation, the application must be considered and recommended by the Credentialing Committee and then the Medical Advisory Committee before it is submitted to the Board of the SRHA for approval or rejection.

7. On July 11, 2005, Dr. Smith received the application forms to be completed by himself and returned to the SRHA.

8. Within one (1) week of receiving these application materials, Dr. Smith resigned his position at the Hospital for Sick Children.

9. In the Application for Appointment to the Medical-Dental Staff executed by Dr. Smith and dated July 23, 2005, Dr. Smith indicated that he was applying for membership to the Medical-Dental Staff with privileges in the Laboratory Medicine Department and for membership in the locum tenens staff category.

In a separate document, Dr. Smith further indicated that he was seeking full privileges in anatomical pathology within the Department of Laboratory Medicine.
Anatomical Pathology, which includes the examination of tissues and cells, is divided into two (2) sub-categories: surgical pathology (which includes examining tumours, etc., that have been removed from a patient for diagnosis) and autopsy or forensic pathology (which includes, inter alia, examining organs from a deceased person, determining patterns of injury and determining the cause of death when death is sudden and unexpected).

Forensic pathology, as both Dr. Smith and Dr. Rees testified, requires special expertise and training. It also invites controversy insofar as it is not an exact science and because there is involvement with the legal system – the work is done at the request of a Coroner, a pathologist deals with the police and prosecutors and often the pathologist has to testify in court.

10. In addition to the said Application, Dr. Smith also provided, inter alia, to the SRHA the following:

(a) A Certificate of Professional Conduct from the College of Physicians and Surgeons of Ontario, which indicated, among other matters, the following:
“Current Referrals to the Discipline or Fitness to Practise Committees as at the Date of Issue of this Certificate: None”

“History of Discipline or Fitness to Practise Findings as Recorded on the Register: None”

(b) Proof of licensure in Saskatchewan which was provided from the College of Physicians and Surgeons of Saskatchewan, which granted an Unsupervised Locum Tenens Licence to practice in Anatomical Pathology from September 7, 2005, to September 6, 2006.

11. Effective September 6, 2005, Dr. Smith was granted a temporary appointment with the Department of Laboratory Medicine “as a locum tenens in anatomical pathology” by Dr. Conlon, the Chief of Staff. His temporary privileges were granted pending his appointment to the Medical-Dental Staff.

12. On September 7, 2005, Dr. Smith was provided with a Contract for Services (Locum) between the SRHA and himself.
He signed the contract on that same date.
The Contract for Services provides, inter alia, (i) that Dr. Smith was engaged as an independent contractor to provide services in the sub-specialty of surgical histopathology of anatomic pathology; (ii) that Dr. Smith was to be duly qualified to practice in the Province of Saskatchewan; (iii) the payment for his services; and (iv) the effective date of the Agreement (September 7, 2005) and the term of the contract – a period of one (1) year unless terminated by either party on one (1) month’s written notice or immediately, without notice, for just cause.
Attached to and forming part of the Contract for Service is a schedule which included the following:

“There is no requirement or expectation by the Region for participation in the Autopsy or Cytology sub-specialty area.
……….
Any duties beyond those agreed to above will be undertake [sic] only by mutual agreement.”

13. Dr. Smith commenced working at City Hospital in Saskatoon immediately.

He acted under the supervision of Dr. Rees, the acting head of the pathology department at City Hospital.

Over time, however, both Dr. Smith and Dr. Rees testified, her supervision decreased because of Dr. Smith’s ability to handle his duties without supervision.

Indeed, Dr. Rees testified that Dr. Smith did an excellent job in carrying out his duties, that he was an enthusiastic and productive pathologist with a good relationship with the staff at work.

14. On September 27, 2005, the Credentials Committee met and considered the application of Dr. Smith.

As Dr. Maber testified, the Credentials Committee’s purpose in reviewing the application was to consider and approve the applicant’s professional qualifications.

15. In the latter part of September or first part of October, 2005, Dr. Maber received a letter dated September 28, 2005, from an individual who attached a decision of the Complaints Committee of the Ontario College of Physicians and Surgeons, which had investigated a complaint against Dr. Smith.

Although the Committee, in its decision, concluded that Dr. Smith’s overall approach in the matter under investigation was acceptable, it required Dr. Smith to attend before a panel of the Committee to be cautioned with respect to certain deficiencies in his approach to the case.

16. In the first part of October, 2005, Dr. Conlon, the Chief of Staff of the SRHA, received a letter dated September 30, 2005, from a second individual who also attached a decision of the Complaints Committee of the Ontario College of Physicians and Surgeons, which had investigated a complaint against Dr. Smith. (This was a different decision than that which had been forwarded to Dr. Maber.) Again, the Committee in this case concluded that Dr. Smith’s overall approach in this
matter was acceptable but required Dr. Smith to attend before a panel of the Committee to be cautioned with respect to a number of deficiencies in his approach to the case.


The Board of the SRHA meets twice a month (with the exception of July and August in each year in which there are no meetings).

There is an in-camera meeting of the Board in the first part of the month and a public meeting in the middle or latter part of the month.

18. At its in-camera meeting of October 5, 2005, Dr. Murray attended before the SRHA Board to discuss Dr. Smith’s application for an appointment to the Medical-Dental Staff.

He explained to the Board what had occurred to this point (i.e. the granting of temporary privileges, etc.).

19. On October 11, 2005, the Medical Advisory Committee (“MAC”) met to consider the Credentials Committee’s report and to consider the applications of various physicians, including Dr. Smith’s application.

In the minutes from that meeting, there is reference to the fact that the members of the MAC were aware of and sensitive to the controversy in Ontario related to Dr. Smith’s forensic work but also a conclusion that his credentials were in order and that monitoring mechanisms were in place to ensure quality service in the area of adult anatomical pathology.

20. On October 18, 2005, at the Board’s request, an Ethics Consultation was carried out with respect to “the process for hiring Dr. Smith as well as the pertinent questions that needed to be answered in order to justify his hiring”.

A written summary of the matters considered by the ethics group was prepared by the SRHA’s ethicist, Fr. Mark Miller, for the Board’s consideration.

It provided, in part:

“Second, the major question that focused most of the discussion concerned the credentials of Dr. Smith, as conveyed to SHR by the Ontario College of Physicians and Surgeons, as well as any possible impediments due to unsatisfactory practice or judgement.

It was noted that documentation that SHR had obtained concerning Ontario College hearings about Dr. Smith’s practice were forwarded to us not by the College but by affected individuals.

This raised significant questions about the nature of the hearings in Ontario, the consequences for Dr. Smith’s practice, and SHR need to understand what was being communicated to us (and what was not).

Were these ‘disciplinary hearings’ as we might call them in Saskatchewan or something else?

As I recall, the most significant conclusion of our ethics consultation was that SHR needed to understand more clearly what the credentialing of Dr. Smith in Ontario means and why the results of the hearings were not forwarded to us.

Part of the need to clarify the above question revolved around the importance of trusting Colleges of Physicians and Surgeons across Canada.

Third, the scope of Dr. Smith’s work in Saskatoon was clearly delineated such that it was made clear that he would not be practicing either pediatric or forensic pathology.

He would be restricted to surgical pathology, for which he [sic] credentials seem to be more than adequate.

Furthermore, an issue arose about oversight or mentoring of Dr. Smith. It was pointed out that he would need some guidance for the first few months because adult pathology would have different demands that [sic] pediatric pathology and this would be provided by the Pathology staff.

Furthermore, the methodology of the Pathology staff is such that they work together in a complementary fashion which provides a regular dialogue with Dr. Smith in the work he is doing.

Fourth and finally, the issue of public perception was raised.

It was not clear to me how this aspect is weighed in the whole scheme of things.

It is my own opinion that if SHR can justify its hiring of Dr. Smith, it can do so transparently and with full accountability.

There was, however, the further question concerning the possibility that serious findings would become public as a result of the inquiry into the 40 or so forensic pathology cases that are currently being reviewed in Ontario;

SHR would need to be prepared to deal with this situation should it arise during the coming year.”


21. At the public meeting of the SRHA Board on October 19, 2005, all of the recommendations for physician appointments – with the exception of Dr. Smith – were approved by the Board.

The Board, according to Ms. Eberle, required additional information and time before making the decision on whether to grant Dr. Smith the appointment he was seeking.


22. Because of a reluctance on the part of the Ontario College of Physicians and Surgeons to discuss the two decisions concerning Dr. Smith that had been forwarded to Dr. Maber and Dr. Conlon, Dr. Maber wrote to Bryan Salte, Deputy Registrar of the
College of Physicians and Surgeons of Saskatchewan on October 20, 2005, to clarify what the SRHA believed was a discrepancy that existed between the official record contained in the Certificate of Professional Conduct issued by the Ontario College of Physicians and Surgeons and the two (2) decisions of the Complaints Committee of the Ontario College received by the SRHA.


The Deputy Registrar of the Saskatchewan College of Physicians and Surgeons responded in a letter dated October 22, 2005, as follows:

“From the material provided to me, I think that the Ontario Complaints Committee has authority that combines the authority of our Complaints Resolution Advisory Committee and our Preliminary Inquiry Committee.


That is, upon completing a review of a complaint the committee can:
a) Dismiss the complaint
b) Refer the complaint for discipline or competency proceedings
c) Provide a caution to the member
d) Provide advice to the member;


If I correctly understand what was done in Ontario, the Committee, after investigating the complaint, cautioned Dr. Smith.

As I understand the Ontario process, a caution is a method whereby the Committee requires a physician to attend so that the Committee can express its disapproval to the member, but it is not a matter of formal discipline and is not a finding of professional misconduct.

As I understand the Ontario process, the investigation was an investigation of potential unprofessional conduct as the Committee considered whether the information provided was sufficient to result in a referral to the discipline committee for a discipline hearing. They did not do so but rather administered the caution.

As I understand it, this would be the equivalent of a preliminary inquiry committee in Saskatchewan reviewing a complaint and deciding that there was insufficient evidence to justify a hearing before the discipline committee.

Thus, while the media may refer to the caution as “discipline” I don’t think it is accurate to so describe it. the finding in Ontario with respect to both of the complaints that I have reviewed was that they were not matters that should be referred for a discipline hearing.”

23. Dr. Maber prepared a report for the Board of the SRHA prior to its November 2, 2005, meeting.

After outlining a chronology of events and some key considerations for the Board, he then provided the following:

“A possible course of action:

The Authority can accept the recommendation of MAC, reject it entirely or vary it by substituting its own conditions such as:
Approval of his appointment to the Temporary Medical Staff subject to the following explicit conditions:
1. The temporary appointment will not extend beyond June 30, 2006.
2. During the term of his appointment he will not be involved in any autopsy work, nor any forensic work.
3. The Authority reserves the right to review this decision should the Provincial Coroner’s review in Ontario make relevant information known to the Authority before the end of Dr. Smith’s term of appointment.
4. The Head of the Department will continue to be responsible for close monitoring of Dr. Smith’s work as a surgical pathologist.”

Dr. Maber testified at the appeal hearing that this description of a possible course of action was not meant to be a recommendation to the Board – only an option to be considered.

24. A straw vote was taken at the Board’s in-camera meeting of November 2, 2005, and the results were that Dr. Smith should not be granted the appointment he was seeking.
25.

The intention was to hold the formal vote at the Board’s public meeting set for November 16, 2005.

Prior to the meeting, however, Dr. Smith’s lawyer requested an opportunity to address the Board with respect to the issue of his appointment and privileges at a date sometime after November 21, 2005.

26. On December 2, 2005, Dr. Ladham, the Chief Forensic Pathologist at the office of the Chief Coroner of Saskatchewan issued a letter addressed “To Whom It May Concern” in which he wrote the following:

“Please be advised that Dr. Shaun Ladham, Chief Forensic Pathologist, Office of the Chief Coroner, Saskatchewan is responsible for forensic services in Saskatchewan including the allocation of forensic work to pathologists in Saskatoon.

The decision as to which pathologist is involved in this service is determined by the Chief Forensic Pathologist.

Because of the media controversy which is centered on Dr. C. Smith regarding his forensic services in Ontario, and the pending independent peer review of this work which will be conducted in Ontario, Dr. Smith will not be involved in the performance of any forensic autopsy examinations in Saskatchewan.

This has been discussed with Dr. Smith, who has indicated that he also does not wish to participate in these examinations.”

27. At its next meeting – December 7, 2005 – Dr. Smith and his lawyer appeared before the Board and were permitted to make their presentation as to why Dr. Smith should be granted the appointment/privileges that he was seeking.

The Board had before it the Application of Dr. Charles Smith and all related documentation, the Contract for Service between the SRHA and Dr. Smith, the Ethical Consultation Summary, the letters from the two individuals addressed to Dr. Maber and Dr. Conlon (with the attached decisions of the Complaints Committee), the exchange of correspondence between Dr. Maber and Bryan Salte, the report prepared by Dr. Maber for the Board and assorted press articles concerning Dr. Smith.

The press articles included articles from newspapers with headlines such as:
“Pathologist’s findings probed”
“Criminal cases involving pathologist face review”
“Child killer cases first under review”
“Pathologist probed in Ontario – Moves to Saskatoon”
“Shamed MD finds new job”

28. At its next meeting – December 15, 2005 – the Board voted to deny Dr. Smith’s application for appointment.

29. Correspondence dated December 23, 2005, was forwarded to Dr. Smith advising Dr. Smith of the Board’s decision and the reasons for its decision.


30. Dr. Smith’s last day of practice in Saskatoon was December 22, 2005.

31. By letter dated January 13, 2006, Dr. Smith requested that, pursuant to Article 3.2.8 of the Medical-Dental Staff Bylaws, the Board reconsider its decision.

32. By letter dated January 23, 2006, Dr. W. T. Bingham, Acting Chair of the Medical Advisory Committee wrote Ms. Eberle to advise her that at its January 23, 2006, meeting a unanimous motion was passed by the MAC in support of Dr. Smith’s appeal to the Board for a reconsideration of its decision.

33. Prior to the February Board meetings, Dr. Smith and his lawyer provided the Board with a copy of correspondence dated May 12, 2005, from Dr. James Dimmick, a Professor of Pathology and Laboratory Medicine from the University of British Columbia who had been requested by a Vice-President at the Hospital for Sick Children to conduct a review of Dr. Smith’s pediatric surgical pathology cases to determine the appropriateness of diagnoses made by Dr. Smith.

The letter read, in part:

“I have completed the review of 60 surgical pathology cases that in my estimation reflect a spectrum of challenging interpretations and that have, predominantly, important implication for patient care.

For each case I examined all pathology slides without knowledge of the content of Dr. Smith’s report and formed a diagnostic opinion. After which, I studied the pathology report and compared my diagnosis with the reported diagnosis.

On each case I scored for agreement, minor disagreements with no or minimal patient consequence, or major discordance with serious implication for patient care (as per scoring sheets provided).

Of the 60 surgical pathology cases I concur with Dr. Smith’s diagnoses in 57. In the remaining three we disagree in a minor way that has no negative implications for patient care.

In general I find Dr. Smith’s reports to be appropriately informative, thorough and diagnostically accurate. Extrapolating from this review, the process of which I believe to be an appropriate assessment, I conclude that his performance is at a level expected for a pediatric pathologist in a sophisticated children’s hospital dealing with complex diagnostics.”

34. On February 7, 2006, Dr. Smith and his lawyer made further representations to the Board. Dr. Rees also made representations to the Board in support of Dr. Smith and Dr. Murray filed written representations in support of Dr. Smith.

35. On February 22, 2006, the Board, at its public meeting, dismissed Dr. Smith’s application for reconsideration.

36. Since December 22, 2005, Dr. Smith has not been able to obtain employment as a pathologist and believes that it is due to his failure to obtain the appointment to the Medical-Dental Staff at the SRHA.

Page 26
E. ANALYSIS

At the outset, it should be noted that there is no concern by this Tribunal as to the fairness of the process which was followed by the Board in reaching its decision.

The Medical-Dental Staff Bylaws of the SRHA did not provide or require that Dr. Smith be provided an opportunity to make submissions to the Board with respect to his application.

The Board of the SRHA, however, did provide such an opportunity to Dr. Smith (and Dr. Smith’s counsel) prior to making its initial decision and prior to its reconsideration of its initial decision.

To reiterate, the role of the Tribunal in this appeal is as described in R. v. Dennis – to determine whether the decision appealed from is right or wrong based on the evidence presented at this appeal hearing.

Counsel for Dr. Smith put forward three (3) submissions as to why Dr. Smith’s appointment ought to be confirmed by this Tribunal:
1) Dr. Smith fully meets all of the criteria and credentialing which the Board itself says is necessary;
2) Any concerns with respect to Dr. Smith’s medical practice can be completely dealt with through the scope of his appointment and privileges; and
3) To pre-judge a professional and deny him an otherwise fully justified and routine appointment is the epitome of unfairness, and will do more harm to the reputation of the Health Region as a fair public institution than anything the Appellant has done.

We turn to each of these submissions:

1. All Criteria Met
The evidence is clear that Dr. Smith’s application for appointment to the Medical-Dental Staff of the SRHA was accompanied by all of the materials described in and required by Section 3.2.1(a) of the Medical-Dental Staff Bylaws. Moreover his application was supported by the acting head of the Department of Laboratory Medicine, Dr. Murray, and both the Credentials Committee (which assesses the qualifications of the applicant) and the MAC recommended his appointment as well.
When the MAC learned of the Board’s initial rejection of Dr. Smith’s application, it passed a unanimous motion in support of his appeal to the Board for a reconsideration of its decision. There was also clear evidence that Dr. Smith’s qualifications and practice in the area of surgical pathology were well regarded. For example, Dr. Dimmick’s review of Dr. Smith’s work (contained in his letter of May 12, 2005, addressed to the Vice-President of the Hospital for Sick Children) concluded that Dr. Smith’s performance was at a level expected of a pathologist in a sophisticated children’s hospital dealing with complex diagnostics.
Dr. Rees testified that the results of Dr. Dimmick’s review – i.e. his concurrence with Dr. Smith in 57 of 60 surgical pathology cases – were exceptional.
At the hearing, Ms. Eberle agreed that the Board had no concerns about Dr. Smith’s qualifications to practice surgical pathology.
Dr. Smith’s application did, therefore, at the time of his submission of his application, meet all of the criteria necessary for his appointment. We will comment later in this decision about whether all criteria have been met as of the date of this decision.

2. Restricted Appointment and Practice;

The second submission by counsel for Dr. Smith was that any practice concerns or concerns about potential negative publicity could have been – and in fact were – dealt with through limitations on the scope of his practice and privileges.

From the evidence, it does not appear that there were any concerns about Dr. Smith’s ability to carry out his duties in the area for which he had been hired – surgical pathology; that is there were no practice concerns.

Clearly, Dr. Murray and Dr. Conlon did not have any concerns – they either arranged for or granted him a temporary appointment and privileges in September, 2005, to practice pathology.

Ms. Eberle also testified at the hearing that the Board had no concerns about Dr. Smith’s ability to carry out the surgical pathology work.

There were, however, concerns by the Board as to the negative publicity associated with any appointment of Dr. Smith.

This is referenced clearly in the letter of December 23, 2005, when Ms. Eberle advises Dr. Smith that they have considered the “potential for negative public perception” of his appointment.

The material before the Board at (or before) its December meetings included a “Backgrounder Document” issued by the Chief Coroner of Ontario outlining his plan to review 44 cases in which autopsies were performed or opinions given by Dr. Smith in homicides or “criminally suspicious” cases involving children.

All of these cases, however, involved forensic pathology.

The Contract for Services with the SRHA provided that Dr. Smith was retained only to provide services in the area of surgical pathology and that any duties beyond these would only be provided by mutual agreement between the two parties.

Accordingly, Dr. Smith was restricted contractually from performing in the area of forensic pathology unless the SRHA permitted it.

Moreover, counsel for Dr. Smith submits that the Board, in granting the appointment to the Medical-Dental Staff, could have limited his privileges so as to exclude any autopsy or forensic work.

In support of this, counsel for Dr. Smith referred to Dr. Maber’s proposal as to a possible course of action in the memorandum he prepared for the Board prior to its November 2, 2005, meeting.

Accordingly, this Tribunal agrees that any concerns about Dr. Smith’s practice in the area of forensic pathology or concerns about negative publicity about him in this area of his practice either were met by the limitations placed on him in his Contract or could be done by adding conditions to his appointment.

But, while counsel for Dr. Smith is correct in noting that the Board had already (in its Contract for Services) and could potentially (through conditions attached to the appointment) further limit Dr. Smith’s ability to practice forensic pathology, this does not mean that the Board did or could have addressed its concern about what it considered potential negative publicity attached to such an appointment by limiting Dr. Smith to the area of surgical pathology only.

Because of the widespread media publicity concerning Dr. Smith, the Board, it can be assumed, was concerned about Dr. Smith’s employment with the SRHA in any capacity.

An important question, however, is whether the negative publicity or the potential negative publicity was or is a reasonable basis for refusing the appointment and we now turn to that aspect of the submissions by Dr. Smith’s counsel.

3. Unfairness of Board’s Decision;

Counsel for Dr. Smith’s third submission concerns the basic unfairness of the Board using the speculative and prejudicial notion of the potential for negative media publicity or “continued negative media focus” as the basis for denying Dr. Smith an appointment.

Counsel lists three (3) main concerns with this basis for the Board’s decision:

a) It undermines the Credentialing and Certificates process;

b) It violates the presumption of innocence;

c) There is no proof that the media coverage had any negative effect.

(Before dealing with each of these concerns, it should be noted that the Board does not state that negative publicity or the potential for negative public perception is the only basis for denying Dr. Smith’s appointment.

Rather, the Board, in its correspondence of December 23, 2005, and February 22, 2006, describes the following reasons:

• The reasonably held perception of possible malfeasance – presumably arising from the “negative media publicity” and the potential for negative public perception of Dr. Smith’s appointment arising from the investigation by the Chief Coroner’s Office in Ontario; and
• By February, 2006, Dr. Murray had concluded his position as Acting Head of the Department of Laboratory Medicine and the need for someone to backfill his clinical duties had passed.

We will deal with this latter reason provided by the Board after dealing with each of the concerns raised by Dr. Smith’s counsel.)

a) Undermining of Credentialing and Certificate Process;

Counsel for Dr. Smith submits that the Board’s decision in this case creates an extremely dangerous precedent.

The Medical-Dental Staff Bylaw requires that an Applicant provide a Certificate of Good Standing from his current licensing body.

Dr. Smith provided the Certificate but the Board, according to Dr. Smith’s counsel:

• did not “believe” the Ontario Certificate;

• attempted to take steps to “get the real story” on Dr. Smith;

• ignored the fact that neither the Credentials Committee nor the MAC had any concerns about Dr. Smith;

• contacted the Saskatchewan College of Physicians and Surgeons instead of the Ontario College for further information.

According to Dr. Smith’s counsel, the steps taken by the SRHA undermine the whole purpose of the Certificate of Good Standing – which is a certificate which “must be given effect on its face”.

To not accept the same “throws the entire system of professional licensing in disarray”.

With respect, we cannot agree with Dr. Smith’s concerns in this regard.

The Certificate of Good Standing did, of course, indicate that Dr. Smith had not been disciplined by the Ontario College and that there were no outstanding investigations.

Unsolicited, however, members of the SRHA received copies of two (2) decisions which indicated that Dr. Smith had received a caution about his practice methods.

In attempting to determine the significance, if any, of this (as Dr. Maber did), it is difficult to conclude that the Board did not believe the contents of the Certificate or that it was trying to “get the real story”.

It was simply trying to get clarification as to what significance, if any, there was to the cautions given to Dr. Smith.

Dr. Maber made it quite clear in his evidence that he attempted to obtain an answer to such a question from the Ontario College but was unable to get any cooperation from that body.

He turned to the Saskatchewan College of Physicians and Surgeons in order, quite reasonably, to obtain some assistance from a professional regulatory body dealing with such matters.

Finally, it should be noted that the decision of the Board does not mean that it ignored the lack of concerns expressed by the Credentials Committee or the MAC about Dr. Smith’s appointment.

There can be no doubt that the Board is the party – according to the Medical-Dental Staff Bylaws – that has the responsibility for approving or rejecting a physician’s application for appointment to the Medical-Dental Staff.

As such, the Board is also permitted to take into account additional considerations when making its decision (i.e. considerations that the Credentials Committee or MAC did not or may not or do not take into account).

As Dr. Maber testified, the Credentials Committee is primarily concerned with the qualifications of the physician.

This is not, however, the only consideration that a Board may, or should, take into account.

As counsel for the SRHA pointed out in his submissions, matters such as suitability and compatibility with others within the department in which a physician seeks appointment, the availability of resources to support the type of privileges and practices proposed by the applicant, the impact on staff, any potential risk management issues, public protection and confidence issues, the character of the individual and potential concerns regarding ethics and clinical practice are all factors that the Board may consider in reaching its determination or an appointment to the Medical-Dental Staff.

The MAC, in this case, took into account the media controversy concerning Dr. Smith in its report.

But again, not only might there be other considerations taken into account by the Board, but the Board can (or it would be surprising if it didn’t) disagree, from time to time, with the recommendations of either or both the Credentials Committee or the MAC.

To do so does not set a dangerous precedent, nor is it unacceptable.

The more relevant questions are these:

Did the Board, in not following the Credentials Committee or the MAC recommendations, have reasonable grounds for doing so?

Were the additional considerations taken into account to justify its decision reasonable?

Do we, as a Tribunal, believe that the publicity surrounding Dr. Smith (and any additional publicity that might occur after his appointment) serves as a basis for denying his application?

We now turn to the second concern of Dr. Smith’s counsel.

b) Violates Presumption of Innocence

Counsel for Dr. Smith submits that a person is presumed innocent until proven guilty and that by stating that negative publicity is a reason for denying the appointment, the Board “is essentially stating that it believes the stories – and by implication that he must be guilty of something”.

On this point, we agree with counsel for Dr. Smith.

In her correspondence of December 23, 2005, to Dr. Smith, Ms. Eberle writes that public trust and confidence is an essential responsibility of the SRHA and that this is achieved, in part, by ensuring that individuals are not appointed where there is a reasonably held perception of public malfeasance.

But surely there cannot be a reasonably held perception of possible malfeasance where a physician has not only not been charged with any criminal offence but is not the subject of any investigation by the professional body that governs his professional activities – in this case, the Ontario College of Physicians and Surgeons.

Moreover, the only two (2) times which the Board (and this Tribunal) is aware that Dr. Smith was investigated by the Ontario College of Physicians and Surgeons on the basis of a complaint, the decision of the Complaints Committee was that he had met the standard expected of him in the circumstances and the matter was not referred to a disciplinary hearing.

Finally, the review initiated by the Chief Coroner in Ontario was just that – a review.

It was not a criminal investigation nor was any wrongdoing alleged.
Accordingly, we, as a Tribunal, can find no basis for a conclusion that there is a “reasonably held perception of possible malfeasance” and that to have this as a reason for denying Dr. Smith’s application does indeed violate the principle of presumption of innocence.


c) The Effect of the Publicity;

The third and final concern of counsel for Dr. Smith is that the perceived negative perception by the public as a result of the publicity arising from the media in this case has not been proven.

Again, on this point we agree with counsel for Dr. Smith.

While conceding that negative publicity (and the perception by the public arising from it) could be a proper basis for denial of an appointment (e.g. where there is a public outcry over the appointment of a physician who has been convicted of a serious offence or a series of offences), counsel for Dr. Smith submits that the Board in this case must have more than anecdotal evidence to support a position that negative publicity justifies denying an appointment.

Counsel for Dr. Smith implied that a survey of public opinion would have been a useful tool in determining “public perception” of Dr. Smith’s appointment.

Without determining whether a Board is required to conduct a survey in order to rely on “negative public perception” as the basis for its decision in these types of cases, we nevertheless note that in this case there was no evidence – no letters to the Board, no petitions to the Board, no phone calls to the Board – to support the position that the public had any concerns about Dr. Smith’s appointment.

Ms. Eberle, in her correspondence of December 23, 2005, to Dr. Smith, however, also refers to the “potential” for negative public perception of his appointment and the “potential” for negative public perception as a result of the investigation by the Chief Coroner of Ontario.

This strikes us as a more tenuous argument for the Board to make because it is making a decision on the basis of how the public could or would potentially react.

This surely must require some evidence (such as letters of warning, polling or surveys) which was not forthcoming at this appeal hearing.

In summary, then, this Tribunal does regard one of the stated reasons by the SRHA for rejecting Dr. Smith’s application for appointment – the potential for negative public perception – as both unfair and unreasonable in the circumstances;

it not only violated the presumption of innocence which should have been afforded Dr. Smith but it was made without any evidence before the Board (or before this Tribunal at this appeal hearing) that there was any negative public perception of this appointment at the time the Board considered this matter and without evidence supporting the position that there was a “potential” for negative public perception.

Prior to completing this portion of this decision, we wish to comment briefly upon the second stated reason for denying Dr. Smith’s application for appointment contained in the February 22, 2006, correspondence, namely, the return to clinical practice by Dr. Murray and therefore the elimination of the need for someone such as Dr Smith to carry on with pathology duties in the SRHA.

With respect, this strikes the Tribunal as the Board attempting, after the fact, to justify its decision.

The testimony from Dr. Smith, Dr. Rees, Dr. Murray and Dr. Maber at this appeal hearing disclosed that it is always difficult to hire well-qualified senior pathologists at the SRHA (due to a variety of reasons, including the previous shut down of the training program) and that there is a constant shortage of pathologists. Dr. Smith testified that there is a standing advertisement for a permanent pathologist’s position with the SRHA.

Perhaps most convincing, however, was Dr. Murray’s testimony when he indicated that when he returned to his clinical duties in January, 2006, there was still a need for more pathologists with the SRHA.

This second stated reason for denying Dr. Smith’s application for appointment is therefore not credible or reasonable.

F. REMEDY
Section 14 of the Regulations provides the following:
14(1) Within 30 days after the completion of a hearing, the Tribunal shall make a decision:
(a) confirming the decision of the Board;
(b) varying the decision of the Board;
(c) quashing the decision of the Board and substituting its own decision for that of the Board.


For reasons already given, this Tribunal has concluded that the decision of the SRHA was unfair, unreasonable and wrong when it denied Dr. Smith’s application for appointment to the Medical-Dental Staff at its Board meeting of December 15, 2005 (for the reasons set out in its letter of December 23, 2005 to Dr. Smith) and when it dismissed Dr. Smith’s application for reconsideration of its decision at its February 22, 2006, meeting (for the reasons set out in its letter of February 22, 2006, to Dr. Smith).

Accordingly, we hereby quash the SRHA Board’s decision of December 23, 2005, as confirmed by its decision of February 22, 2006, insofar as it denied Dr. Smith’s application for appointment to its Medical-Dental Staff.

However, this Tribunal is not willing to grant the additional remedies or relief sought by counsel for Dr. Smith, namely, his appointment to the SRHA as a member of the Medical-Dental Staff in the same capacity and under the same locums contract.

Dr. Smith’s licence to practice from the College of Physicians and Surgeons of Saskatchewan as an unsupervised locum tenens expired on September 6, 2006.

Accordingly, it is not only not practical for this Tribunal to include in this decision an appointment to the SRHA Medical-Dental Staff for a period of time equivalent to the remainder of the term of his locum tenens appointment (i.e. approximately 8 months), but Dr. Smith cannot provide one of the basic requirements of the Medical-Dental Staff Bylaws – evidence that the applicant holds a current active licence from the Saskatchewan College of Physicians and Surgeons.

In the event Dr. Smith had been currently licensed to practice in Saskatchewan, this Tribunal would have ruled that Dr. Smith be appointed to the Medical-Dental Staff.

Regardless of whether Dr. Smith was licensed or not, however, this Tribunal would have been reluctant to include in its decision that Dr. Smith be appointed “under the same locums contract (amended mutatis mutandis)” as requested by Dr. Smith’s counsel.

This Tribunal, we believe, is limited in dealing with the decision of the SRHA Board – and that Board only dealt with the granting of an appointment to the Medical-Dental Staff at its December and February meetings.

Any remedy Dr. Smith might want to obtain with respect to the Contract for Services flowing from his denial of his appointment by the SRHA would have to be obtained in another forum.

G. DECISION

To summarize, we hereby quash the SRHA Board’s decision of December 23, 2005, as confirmed by its decision of February 22, 2006, which denied Dr. Smith’s application for appointment to the SRHA Medical-Dental Staff.

We do not, however, appoint Dr. Smith to the SRHA Medical-Dental Staff due to the impracticability of the same given that he does not currently possess a valid license to practice from the College of Physicians and Surgeons of Saskatchewan.

We do, however, want to make it clear that as part of our decision we find that Dr. Smith was eminently qualified for the appointment he was seeking and that the Board of the SRHA, in denying his appointment, acted unreasonably and unfairly towards Dr. Smith.

Dated this 27 day of November, 2006.
Practitioner Staff Appeals Tribunal
Original signed by
Dirk Silversides, Chair
Original signed by
James Howlett, Member
Original signed by
Michael Fisher, Q.C., Member;
Harold levy; hlevy15@gmail.com...