Goudge Inquiry: Smith To Testify January 28: His lawyers Seek Special Procedure;

Usually the direct testimony of a key witness testifying at a public inquiry is led by the Commission Counsel.

Lawyers for other parties can then question the witness - and the final examination is conducted by the witness's lawyer who thereby has the opportunity to tie up any loose ends raised during the client's testimony.

But Dr. Charles Smith's lawyers have served notice on the Goudge Inquiry that they want leave to examine Dr. Smith "in chief" - when he testifies at the Inquiry as of January 28, 2008.

The pediatric forensic pathologist is represented at the inquiry by lawyers Niels Ortved. Jane Langford, Erica Baron and Grant Hoole of the firm McCarthy Tetrault.

Experienced counsel tell this Blog that lawyers prefer to conduct the direct examination of their client - particular a client who has a lot to explain - because this allows you to prepare the witness - and as one lawyer said, "it allows you to tell the story the way you want to."

Although former Ontario Premier Mike Harris's reputation was expected to come under attack during the course of his testimony at the recently concluded Ipperwash Inquiry, Harris did not invoke this procedure.

Smith's lawyers contend in a "factum" filed with the Commission, that the procedure, "will grant Dr. Smith the full procedural protection he is entitled due to the very risk of reputational harm to which he is exposed."

They also contend that Commissioner Stephen Goudge has ample jurisdiction to make the order under Ontario Law - and that the interests of all of the other parties can be protected.

Smith, for example, undertakes to provide the other parties with a "will-say" statement in advance of his testimony so they can prepare their cross-examinations.

Smith also undertakes to provide a list of documents associated with his anticipated evidence and stresses that all parties will retain the usual rights of cross-examination and reply.

"Unlike any other witness who will give evidence during the Inquiry, Dr. Smith has direct evidence on most systemic issues, as well as direct involvement in each of the cases forming the basis of the Inquiry," the factum says.

"The breadth and complexity of his evidence is such that counsel for Dr. Smith is in the best position to assist Dr. Smith in providing the Inquiry with the most relevant evidence arising from his experience and knowledge."

Smith's lawyers say that they are not aware of any cases in which a party with standing sought and was denied the right to be led in chief by his own counsel, where provision for such a procedure is included in the rules of the Inquiry - as is the case with the Goudge Inquiry;

It remains to be seen whether Commission Counsel Linda Rothstein, and lawyers for the other parties, will consent to Smith's request for this special procedure - or oppose it.

Stay tune to this Blog for developments.

Harold Levy;