Goudge Inquiry: Transcript Of Cairn's Extraordinary Confrontation With Smith Over Conduct In Waudby Case At Meeting Requested By Smith's Wife;

MS. LINDA ROTHSTEIN: DID YOU BELIEVE ANY ASPECT OF DR. SMITH'S DESCRIPTION OF THE EVENTS?

DR. CAIRNS: SADLY, I DID NOT.


Previous postings have detailed Smith's retention of the small, dark, curly, pubic, male-type hair in the Waudby case, the fact he had the hair with him in court (while denying knowledge of it under oath), discussions among police as to laying criminal charges against Smith, and Smith's claim that Dr. Huyer, a sexual abuse expert , had attended at baby Jenna's autopsy.

Dr. Cairns testified Tuesday that he disbelieved Smith's claim that Peterborough police would not accept the hair, that he did not believe Huyer was present at the autopsy, and that he was utterly shocked by Smith's behaviour - and that in spite of these revelations that went to the heart of Smith's integrity, he was permitted to continue doing other (non-criminal) work for the Coroner's Office.

The transcript of this extraordinary confrontation reads as follows: (I am reproducing it in its entirety for the reader's benefit:

Now, as at that stage, Dr. Cairns, had you
picked up the phone and called Dr. Smith about the hair?

DR.CAIRNS: To the best of my
knowledge, I had not spoken to Dr. Smith about the hair.

MS. LINDA ROTHSTEIN: We know that the
media, in fact, learned about the hair recovered from Dr.
Smith on February the 14th of 2002. You'll see that at
paragraph 147.

And do you remember that making its way
out into the public?


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DR. CAIRNS: I do.

MS. LINDA ROTHSTEIN: And why do you
remember that, Dr. Cairns?

DR. CAIRNS: I remember it being
in the -- in the media and the -- obviously, the rumpus
that's caused being in the media.

MS. LINDA ROTHSTEIN: And did it cause
not only a rumpus in the media, to use your language, but
some concern on the part of Dr. Smith or his spouse?

DR. CAIRNS: Whether it was that
day, but certainly following that, yes, it did cause
concern, I think, primarily perhaps, of Dr. Smith's wife
and also Dr. Smith.

MS. LINDA ROTHSTEIN: How do you know
that?

DR. CAIRNS: I can't give you the
date, but I did get a phone call from Dr. Smith's wife
objecting that the Office of the Chief Coroner -- myself
in particular -- were not supporting Dr. Smith. She felt
that that was unfair, and we should be supporting him.

MS. LINDA ROTHSTEIN: Okay. Stopping
there for a moment. Dr. Smith's wife was a coroner?

DR. CAIRNS: That's correct.

MS. LINDA ROTHSTEIN: You knew her as a
result of her status as a coroner?


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DR. CAIRNS: I knew her as a
coroner, yes.

MS. LINDA ROTHSTEIN: Did you have a
social relationship with Dr. Smith and his wife?

DR. CAIRNS: I had no social
relationship with either of them. I met -- I knew Dr.
Smith, pure and simply, through work.

MS. LINDA ROTHSTEIN: And can you give us
your best recollection of what it was that Dr. Smith's
wife, Karen, said to you in that phone conversation?

DR. CAIRNS: Basically that she
did not feel the Office of the Chief Coroner and myself
were giving Charles the proper support he needed, as a
result of the furor in the media.

MS. LINDA ROTHSTEIN: And what, if
anything, did you say to her in return, Dr. Cairns?

DR. CAIRNS: I said, I am more
than willing to meet with you and Dr. Smith, at a time of
your convenience, in my office to discuss that further.

MS. LINDA ROTHSTEIN: All right. And
you've told us that you can't pinpoint the date of the
call, but you remember it, do you, being after the media
first went public with the information about the hair?

DR. CAIRNS: It was after the
media went public, and it was before Jeff Mainland left


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the Chief Coroner's Office to go to government.

MS. LINDA ROTHSTEIN: All right. And so
the best you can do, as I understand it, is place that
call somewhere between February 5th, 2002 and?

DR. CAIRNS: And April I think,
2002.

MS. LINDA ROTHSTEIN: Mid April of 2002?

DR. CAIRNS: Yes, somewhere in
that range.

MR. BRIAN GOVER: I think it's the 14th
actually, as opposed to the 5th.

MS. LINDA ROTHSTEIN: Did I say the 5th?
I'm -- I thought I said the 15th. All right. Thank you
very much. I meant the 14th.

CONTINUED BY MS. LINDA ROTHSTEIN:
MS. LINDA ROTHSTEIN: And indeed the
meeting, how long after your telephone call with Dr.
Smith, being Dr. Charles Smith's wife, was your meeting
with him and her?

DR. CAIRNS: I can't give you an
exact interval, but it -- it would have been within a
reasonable length of time. It may have been a week, it
may have been ten (10) days. It probably was more
organized depending, since she was a practising


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physician, on people's schedules.

MS. LINDA ROTHSTEIN: Do you remember
what time of day it was?

DR. CAIRNS: It was the afternoon.

MS. LINDA ROTHSTEIN: It was at your
office, sir?

DR. CAIRNS: It was in my office.

MS. LINDA ROTHSTEIN: Did you make any
notes?

DR. CAIRNS: I made no notes.

MS. LINDA ROTHSTEIN: How clear is your
recollection of that meeting?

DR. CAIRNS: My recollection is
very clear of that meeting, and I have confirmed my
recollection of the meeting with that of Jeff Mainland's
recollection of the meeting, and our -- our recollections
coincide.

MS. LINDA ROTHSTEIN: Oh, sorry, I didn't
understand. Was Mr. Mainland also in attendance at that
meeting?

DR. CAIRNS: Mr. Mainland was at
that meeting, yes.

MS. LINDA ROTHSTEIN: All right. It's
helpful to know. And you since being asked to recall
this, had a conversation with Mr. Mainland about that


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meeting? Is this recently?

DR. CAIRNS: Yeah, well yes,
certainly in -- in preparation for -- for testimony I had
a mee -- I've had a number of meetings with him, but in
preparation of this, I had a meeting with him.
And then in addition in terms of the
recall of my memory, and you'll probably come to it, but
you have shown me, a day or two (2) ago a document that
was contemporaneous at that time, which seems to reflect
the same recording -- the same recollection of the
meeting as I have now.

MS. LINDA ROTHSTEIN: All right. So
let's go through it. Just based on your recollection,
Dr. Cairns, refreshed by all of that, who did the
talking? Was it Dr. Karen Smith, is her last name Smith
by the way?

DR. CAIRNS: Her last name is
Smith also.

MS. LINDA ROTHSTEIN: All right. So was
it Dr. Karen Smith or Dr. Charles Smith, both of them?

DR. CAIRNS: It probably was
primarily myself with -- with them answering questions
that I put to them.

MS. LINDA ROTHSTEIN: All right. So how
did the meeting begin, what did you say to them?
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DR. CAIRNS: The meeting began
with -- and this isn't verbatim, but we're very upset
that you're not supporting Charles, and why aren't you
supporting me. And I said, well Charles, the information
I have at this time, is at the time you did the original
on -- autopsy on Jenna, that -- information now that you
discovered a hair or a fibre or some object of that
nature in the vaginal area of Jenna.
And you have indicated and have confirmed
with the police that you took that hair or fibre, and
their police identification officer refused to take that
from you. I said, I find that a preposterous
proposition. I just cannot understand that at all. The
identification officer is from Peterborough, so it's not
-- he's not the number one (1) Forensic IDENT Officer in
the world, and my -- it always has been my -- my belief -
- it's -- well, I've seen in action is if a pathologist
asks an IDENT officer to take a specimen, they take it.
So I -- I just am having great difficulty
with the statement that he refused to take it. And if he
refused to take it for some bizarre reason, I would have
thought, given your experience, that you would have been
immediately on the phone to his superior or immediately
on the phone to Dr. Chiasson, or myself saying, What do I
do, I've got someone here who -- who will not take --


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take a specimen.
And he said, Well no, he refused to take
it, so I kept it. And I said, Well that's an extremely
serious issue. Where do you have it in your report, your
autopsy report that that occurred?
He said, It's not in my autopsy report. I
said, Do you have rough notes that indicate that? He
said, No, I have no rough notes. So therefore in turn, I
said, Do you not feel that the critical situation at that
-- and I've got great difficulty with the fact that --
that you're telling me he wouldn't take it, but would
that not cause you to put a huge note in massive letters
and highlighted to -- to that effect?
And yet you're telling me -- well I looked
at your autopsy report, which I had done, I can see no
reference to it at all, and I'm asking you about rough
notes, because I do realize that sometimes pathologists
will have rough notes and -- now, even if it had been in
rough notes, it would have been such a significant issue
I would have expected it to be transcribed into the
report, and I was told, No, I don't have rough notes.

MS. LINDA ROTHSTEIN: How long was the
meeting?

DR. CAIRNS: Oh, the meeting
probably was two (2), two and a half (2 1/2) hours and it


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went on then -- I said, Well, Dr. Smith, I've read the
transcript of your evidence at the preliminary hearing,
and in fact during that evidence you were asked, and this
may not be verbatim, Were you aware that the night before
when Jenna was taken to hospital in Peterborough that the
Emergency physician, and I think the nurse, both were
concerned that Jenna may have been sexually assaulted and
they both have documented they thought there was a pubic
hair in the vaginal region.
And you were asked by counsel, I think it
was the Crown, if you had known that would that have made
a difference to your examination the next day. And the
answer was, Yes, it -- it would. And I said, Well,
Charles, how can say that in light -- at that time?
And then he said, Well, actually, not only
did I keep -- did I keep the hair, but I had it in an
envelope in my jacket pocket at the preliminary hearing.
So this is getting stranger and stranger. You admit that
nobody would take it, you had it, and when I read your
evidence, if I accept that nobody wanted this hair, when
you are asked that direct question about do you know that
the Emerg physician saw this hair and would that have
helped, I'm sorry, to me that would be a crying out help:
Here I have it; the hair is here. And you didn't do it -
- to which there was no answer.


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MS. LINDA ROTHSTEIN: So how did you feel
about all of this, Dr. Cairns?

DR. CAIRNS: I probably was
feeling the same way as many people in this room who
haven't heard this before was feeling; I just couldn't
understand it. There was then some further discussion
that he thought Dirk Huyer was at the autopsy with him.
And I said, Well, where is that in your
report? It's not in the report. Where is that in your
rough notes? I don't have rough notes. So I was having
difficulty with that, as well.
I know Dirk Huyer; he's on the SCAN Team.
He -- also on the SCAN Team does do a lot of work with
sexual assaults or potential sexual assaults. And I know
that the sexual assault kits that are used that it is
paramount that you collect everything, whether it becomes
of evidentiary value or not later is a different issue.
So if I find it incredulous that Dr. Smith wouldn't do
it, I find it even more incredulous that Dr. Huyer would
not have -- would -- would not have ta -- taken the hair.
And in addition, if you find a hair there,
that would mandate -- and I think I've just -- I've
talked to this with many other people. So I -- I -- I
used to do sexual assault examinations when I was in the
-- Emerg physician.


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But if there's any doubt, it would also
include the necessity to do rectal swabs, vaginal swabs,
mouth swabs, the whole sex kit caboodle, which was not
done, and therefore, it con -- it -- it seemed to
reinforce in my mind that Dr. Huyer had not been there.

MS. LINDA ROTHSTEIN: Did you believe any
aspect of Dr. Smith's description of the events?

DR. CAIRNS: Sadly, I did not.

MS. LINDA ROTHSTEIN: And was this the
first occasion in your relationship with Dr. Smith where
you came to the conclusion that he ought not to be
believed?

DR. CAIRNS: That's correct.

MS. LINDA ROTHSTEIN: And what effect, if
any, did that have on your confidence in his work as a
forensic pathologist?

DR. CAIRNS: As a forensic
pathologist, I thought his time as a forensic pathologist
was gone.

MS. LINDA ROTHSTEIN: What did you do
about that?

DR. CAIRNS: He didn't do anymore
forensic pathology; he still continued doing the hospital
type. And there was a discussion about it with that --
with everyone and everybody felt continued -- since he


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was allowed to do hospital autopsies at Sick Kids, we
felt he could still do hospital type autopsies under a
coroner's warrant at Sick Kid.

MS. LINDA ROTHSTEIN: But help me with
this Dr. Cairns. As of April 2002, when you have this
very difficult conversation with Dr. Smith and his wife.
Dr. Smith has been removed indefinitely from doing
criminal suspicious and homicide cases. Am I correct?

DR. CAIRNS: That's correct.

MS. LINDA ROTHSTEIN: And there was no
expectation that he was ever going to do them in the
future, am I correct?

DR. CAIRNS: That's correct.

MS. LINDA ROTHSTEIN: So what additional
steps were taken by you or anyone else as a result of the
concerns about Dr. Smith's integrity that you've told us
you had following this meeting?

DR. CAIRNS: He was only allowed
to do medical-type cases.

1 MS. LINDA ROTHSTEIN: That was the
22 situation before the meeting as well, sir.

23 DR. CAIRNS: That's correct. So
24 the type of case before the meeting and after the meeting
25 had not changed. I wouldn't say after the meeting


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because obviously the content of the meeting was
discussed with other members of the Chief Coroner's
Office.

MS. LINDA ROTHSTEIN: You weren't alone
in this; you're making that clear?

DR. CAIRNS: I -- I made clear to
others the conversation that we had.

MS. LINDA ROTHSTEIN: Right. But he was
not removed from the PDRC?

DR. CAIRNS: He was not removed
from the PDRC.

MS. LINDA ROTHSTEIN: He was not removed
from the Death Under Two Committee?

DR. CAIRNS: He was not removed
from the Death Under Two Committee.

MS. LINDA ROTHSTEIN: He continued to do
coroner's cases albeit not criminally suspicious and
homicide cases?

DR. CAIRNS: That's correct.

MS. LINDA ROTHSTEIN: And he continued to
hold his title as the Director of Ontario's OPFPU?

DR. CAIRNS: That is correct.

MS. LINDA ROTHSTEIN: Nothing changed
after that meeting?

DR. CAIRNS: That is correct.


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COMMISSIONER STEPHEN GOUDGE: Why not?

DR. THOMAS CAIRNS: It's a very good
question, Commissioner. I -- I can only tell you what
did or didn't happen.
It was felt that he was already muzzled;
that he wasn't doing anything; that he was -- he was
competent to do hospital autopsies and the only type of
autopsies he would be doing would be hospital autopsies,
but they'd be under a coroner's warrant. So it was felt
he was strictly enough controlled that it was not going
to cause an issue.
In addition, at that time, and this may
have played some role in it, the whole issue about this
hair was very much involved in a highly significant
criminal investigation and more details about that hair
were going to have to be analyzed. So there was some
thought also of not wanting to have this in a public
forum until we also knew what was happening with the
investigation of -- of Jenna's death.

CONTINUED BY MS. LINDA ROTHSTEIN:
MS. LINDA ROTHSTEIN: So you were
concerned that taking further steps, at least publicly,
to restrict Dr. Smith's activities would play adversely
in the ongoing Jenna case.


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Is that what you're saying, sir?

DR. CAIRNS: At that time, this
hair was having a major, major play-out in the
significance of the Jenna case, with many people saying
that if this had been given to the police at the first
autopsy that this whole issue would have been completely
resolved and that that hair would have solved the case,
period.
And so, we were focusing on going ahead
with that, and we did not want anything to be interfering
while that was ongoing.

MS. LINDA ROTHSTEIN: Dr. Cairns, you
just told the Commissioner that it was felt that you
could control the work of Dr. Smith in the non-criminally
con -- criminally suspicious cases.
My question for you, sir, is: How does
one control the work of someone whose integrity one
doubts?

DR. CAIRNS: Well, I think with
hindsight, you have got a very good question to which I
would accept.

MS. LINDA ROTHSTEIN: You accept that
it's very difficult to do?

DR. CAIRNS: Yes, I do.

MS. LINDA ROTHSTEIN: And that, indeed,


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more was likely called for?

DR. CAIRNS: Yes.

MS. LINDA ROTHSTEIN: At that stage?

DR. CAIRNS: Yes, I agree.

MS. LINDA ROTHSTEIN: All right.

Harold Levy; hlevy15@gmail.com;