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.
"Dr. Smith’s appearance at the trial undoubtedly made a powerful impression on the jury, and it was his opinion 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.
"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," the factum reads.
"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...
(The factum was filed in connection to a reference by Justice Minister Rob Nicholson to the Ontario Court of Appeal to be heard on Monday, October 15 HL);
Harold Levy;that enabled the jury to conclude that there was physical evidence of Valin’s murder having occurred while she was being sodomized," the factum reads.
"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...
(The factum was filed in connection to a reference by Justice Minister Rob Nicholson to the Ontario Court of Appeal to be heard on Monday, October 15 HL);
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