Goudge Inquiry: Smith Mislead College on Waudby Case;

"AT THE TIME OF THE POSTMORTEM EXAMINATION, A SEXUAL ABUSE EXAMINATION WAS PERFORMED BY ME."

DR. CHARLES SMITH: LETTER TO ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS;

Dr. Charles Smith mislead the Ontario College of Physicians and Surgeons when he told informed the College in writing that: "He (Dr. Dirk Huyer) and I agreed that there was no evidence of abuse. Nevertheless, appropriate sampling was undertaken."

The College had asked Smith to reply to Brenda Waudby's allegation that he was guilty of professional misconduct for failing to conduct a thorough examination to determine if 21-month-old Jenna had been sexually assaulted.

Waudby specifically complained in July 2001, that Dr. Smith had failed to ascertain whether or not Jenna was raped as, for example, by failing to perform a "rape kit" and to scrape under Jenna's nails.

(Two doctors, a police officer and a nurse had detected signs indicative of sexual abuse when Jenna was brought to a Peterborough Hospital);

A section of Smith's letter to the College - revealed by the Inquiry in an "Overview Report" released Tuesday - reads as follows:

"At the time of the postmortem examination, a sexual abuse examination was
performed by me.

In this I was assisted by Dr. Dirk Huyer, the Director of the
Suspected Child Abuse and Neglect (SCAN) program at the Hospital for Sick
Children."

Smith's written assertions to the College are contradicted by the independent panel of three experts which the College asked to review the Waudby case and two other cases.

The panel specifically found on October 15, 2002, that Smith's work was deficient because, "Dr. Smith failed to perform a rape kit examination on Jenna’s body;"

Other specific deficiencies included:

0: Failure to review the clinical information in this case before
performing the autopsy, and

0: Failure to document significant positive or negative findings with respect to sexual assault; and,

0: Failure to describe the genital region in the post-mortem report;

Smith's assertion that "appropriate sampling was taken" flies starkly in the face of our present knowledge that:

0: He removed a small, curly, dark male-type pubic hair from Jenna's vulva area;

0: He did not submit it for testing;

0: He kept it in his personal possession for five years;

0: The police insist he never informed them of it.

0; The Crown was not informed it existed;

0: The defence never learned that it existed;

0: Smith did not disclose he had the hair with him in the courtroom while he was being questioned about it by Waudby's lawyer: (See previous posting: Police Investigating Jenna Killing considered charging Dr. Charles Randal Smith);

0: Brenda Waudby was convicted of murdering Jenna - while J.D., the babysitter, remained free until finally arrested on two charges of sexually assaulting Jenna and manslaughter following an undercover investigation; (See previous posting: More revelations from Waudby case from "Overview Report.")

It's time to look at consequences;

We know now that the police referred their documentation on Dr. Smith to both the College and to the Coroner's office;

What did the College do?

We don't know at this point if the College received the police documents and conducted an independent investigation;

We do know, however, that the College's Complaints Committee did nothing more than caution Dr. Smith for his conduct in the three cases - in spite of it's authority to suspend him from practice or expunge him from its rolls.

It is interesting to note that the Saskatchewan College charged Smith with misleading it on his application for temporary membership so he could work in a Saskatoon hospital.

Smith had failed to disclose that he had been subjected to the three complaints in Ontario and later pleaded guilty to the offence.

Smith had not only mislead the Ontario College of Physicians and Surgeons but had acknowledged holding on to evidence connected with a murder case.

So much for the police looking to the College for actions which would protect the public and demonstrate accountability.

The College is entrusted to regulate the medical profession in Ontario for the public.

It has a great deal to explain.

Now for the Coroner's office.

The "overview Report" also provides insights into the attitudes of senior officials in the Coroner's office towards Smith's conduct in the Waudby case;

For example, an official document notes that:

On April 11, 2002, Chief McLaren, Deputy Chief Ken Jackman, S/Sgt. Ted Boynton,
D/Cst. Charmley, Mr. Gilkinson, Dr. Cairns, (Dr. James Cairns: Deputy Chief Coroner), Mr. Mainland, CFS biologist Cecelia Hageman and CFS Director Raymond Prime met at the Peterborough police station.

According to D/Cst. Charmley, issues surrounding the hair were discussed. Dr. Cairns advised that there were some concerns about Dr. Smith’s performance, but nothing they could find suggested that he had been malicious.

He agreed that Dr. Smith’s wording in his reply to the College (that appropriate
sampling had been done in relation to the sexual assault examination) was somewhat
misleading.

Dr. Smith’s wording did in fact refer to the hair and regardless of what police might
have told him, the hair should have been turned over to the police.

According to D/Cst. Charmley, Dr. Smith had advised Dr. Cairns that he had no rough
notes of the autopsy.

He also told Dr. Cairns that he had the hair with him in an envelope at the
preliminary inquiry.

Dr. Cairns confirmed that there was no evidence of penetration to Jenna and
that observations made by doctors who normally treat living humans could be misinterpreted..."

We also learn from the "Overview Report" that Chief Coroner Dr. James Young pointed the finger away from Dr. Smith to systemic problems in a letter to College President Rocco Gerace dated February 17, 2003.

"In reviewing the Committee's Analysis and Conclusions, it is of concern to me
that there are some issues that may have been misunderstood in regards to the
respective roles of the coroner, the pathologist who conducts a post mortem
examination under the authority of the coroner's warrant, and the investigating
officers" Young said.

Young went on to suggest that pathologists explain, that pathologist in Ontario must rely on coroner's to provide them with "all available relevant information" before the autopsy begins.

This humble bloggist concedes that there may be a systemic communications problem in Ontario that the Goudge Inquiry can usefully address.

But lets look at the facts of this case.

The "Overview Report" tells us that:

"Dr. Friesen observed numerous areas of bruising on Jenna. He also observed possible rectal stretching and tears in the vulva and a curly hair in the vulva. His Emergency record noted, inter alia, “curly hair found on vulva area? Source.”

Dr. Loukras, who also treated Jenna, noted a rectal tear, genitalia bruising to the anus and a swollen labia. Dr. Loukras suspected both child and sexual abuse.

Cst. Steve Rudback, of the Peterborough Lakefield Community Police Service, took
possession of Jenna’s body after she died. He made notes of his observations of the body ncluding injuries and that “while with Dr. Thompson Nurse pointed out thread on vaginal area partly imbedded (inserted) between labia.”

Nurses Sally Kater, Brenda Love and Lori Mason all noticed the hair in Jenna’s vaginal area."

This was not a communications problem.

Everybody saw signs of sexual abuse on the 21-month-old child except Dr. Charles Randal Smith - even though the signs that Jenna had been sexually abused were staring him in the face (much as the obviously dog-inflicted wounds were staring him in the face in the Reynold's case);

The Chief Coroner's office also has a great deal of explaining to do.

Harold Levy;
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(Lawyer Peter Wardle cross-examined former Chief Coroner Dr. Barry McLellan as to why Dr. Smith's retention of the hair did not raise alarm bells in the Coroner's Office. Toronto Star reporter Theresa Boyle reported onthis testimony in a story which appeared on November 15, as follows:

An official from the chief coroners' office was grilled at a public inquiry this morning about why Dr. Charles Smith continued working despite his alarming track record.

"In retrospect, once the office of the chief coroner became aware of the hair, wouldn't that have been a time when some alarm bells should have gone off?" lawyer Peter Wardle asked Dr. Barry McLellan this morning.

The hair he was referring to was found in the vagina area of 21-month-old girl who died of abdominal trauma in 1997. Police seized the hair sample from Smith's office four years later — after the child's mother had been wrongfully charged in the death.

A babysitter later admitted to beating the girl.

"Shouldn't the office of the chief coroner at this time, once it became aware of the issue regarding this hair, taken more steps to investigate what Dr. Smith was up to?" asked Wardle, who is representing individuals implicated in the deaths of children, partly because of Smith's work in the death investigations.

McLellan has served in various positions in the coroner's office, including supervising deputy coroner, acting chief coroner and chief coroner.

Mistakes made by Smith prompted the province to call an Inquiry into Pediatric Forensic Pathology in Ontario. It is looking at 18 cases that were worked on by Smith, once considered the top pediatric pathologists in Ontario.

Wardle pointed out that in early 2001, charges were withdrawn in two of the cases on which Smith, then director of the Ontario Pediatric Forensic Unit at the Hospital for Sick Children, had worked on.

As time went on, questions continued to arise about other cases in which Smith was involved.

"In 2002-2003, the controversy about Dr. Smith doesn't go away, in fact new cases bubble to the surface," remarked Wardle.

In a case before the courts at the time, there was an issue over "a critical delay by Dr. Smith in providing a report on the timing of the injuries," he noted.

"In this time period, there were various families who were attempting to go to the College of Physicians and Surgeons and make complaints about Dr. Smith and that was all playing out in the media," he continued.

Wardle pointed out that Smith wasn't reined in until McLellan took over as chief coroner from Dr. Jim Young.

"Your office took no steps to remove him as director of this unit until you became chief coroner in late April or May 2003," Wardle said to McLellan.

"Correct," responded McLellan.

McLellan explained that he did not have full oversight of Smith until he became chief coroner.

A year prior to this, McLellan had become "acting" chief coroner while Young continued to hold the title of chief coroner.

And while McLellan thought Smith should be reigned in at that point, he was overruled by Young, he said.

"I was concerned that Dr. Smith was continuing to do autopsies, that he was continuing to sit on two committees at the time. And I had concern he was continuing in his role as director of the unit," said McLellan, referring to committees that investigate the deaths of children and the pediatric pathology unit at the Hospital for Sick Children.

Because of the disagreement, McLellan said he refused to take responsibility for Smith.

"I expressed the concerns. Dr. Young felt that it appropriate for him to be continuing in those roles. I respected his opinion as chief coroner. But I indicated at the time any ongoing matters with Dr. Smith should therefore more appropriately be dealt with by Dr. Young in his role as chief coroner and he agreed.")H.L.