Saturday, December 29, 2007

A Glimmer Of understanding: The Fatal Decision; Part One;



How could Dr. Charles Smith have had such a disastrous impact on Ontario's criminal justice system?

Thanks to the evidence of Dr. Ernest Cutz at the Goudge Inquiry I finally have a glimmer of understanding as to how this came about.

The die was cast with the fatal decision to appoint Dr. Smith - a man with no formal qualifications in forensic pathology - as head of the new Ontario Pediatric Forensic Pathology Unit to be located at the Hospital for Sick Children, in 1991.

The proverbial light bulb lit up in my head when I got the glimmer when Commission Counsel Jennifer McAleer asked Cutz if he had any concerns with respect to the choice of Dr. Smith to head a new pediatric forensic pathology unit to be located at the Hospital.

(Before the Unit was established in 1991, autopsies on children in criminally suspicious cases were done at the coroner's office while those done on children who died of natural causes were done at the hospital. But with the establishment of this unit, all autopsies were done at Sick Kids.)

Cutz replied that he would not have recommended Smith for the job because he had not been trained to handle handle matters like "bullet wounds, knife wounds, any kind of act of violence, rape and those kind of things," which forensic pathologists handle on a daily basis.

"(They) have a lot of experience...whereas we practically never do it, and so we have no experience," Cutz said."

That made perfect sense to me.

As an anatomic pathologist, Dr. Smith was trained to diagnose disease and gain other clinically significant information through the examination of tissues and cells.

He simply didn't have the in-depth training and experience which is necessary to determine the cause and time of death and related matters in the context of the criminal and civil justice systems.

Dr. Cutz testified that Smith had "no strong research background" when he began working full-time at the hospital in 1981.

Under questioning by lawyer Peter Wardle, who represents several individuals and familes affected by Smith, as to whether any one at the hospital was actually assisting him - - or whether he was just learning from the cases - Cutz replied that there was "no formal sort of teaching."

To the contrary, Cutz explained that, "(We) we were all 15 available to provide assistance as needed, but basically 16 he was left to develop his skills and knowledge on his own."

Cutz said it would be fair to say that Smith's training at the hospital before being appointed to head the unit "was really derived from on-the-job experience" - and that it would not be unfair to say that he was "self-taught."

This humble Bloggist simply cannot understand why the Province would not have insisted that the person appointed to head the new Unit - with its huge responsibility in investigating children's deaths - should have the highest professional qualifications, training, and experience as a forensic pathologist.

It is no answer to say that Canada did not have any systems in place for qualifying people to work in this complex medical specialty - other countries did.

The province and the Hospital should have scoured the world to find a fully qualified individual who was up to the task - rather than hiring Smith and placing him in a position in which he was way over his head.

The shocking extent of Dr. Smith's ignorance was communicated by my former Toronto Star colleague Theresa Boyle in her account of Dr. John Butt's testimony at the Goudge Inquiry on Nov. 21, 2007.

Butt participated in the independent review of Dr. Smith's cases called by former Chief Coroner Dr. Barry McLellan.

The story appeared under the heading: "Smith lacking the basics, probe told."

"A controversial doctor at the centre of a public inquiry showed a surprising lack of understanding of how rigor mortis affects a body – something even a student of medicine should know, a British Columbia pathologist has testified," the story began.

"This is of concern because it's very basic information that one would expect a medical student to have a good grasp on," Dr. John Butt testified yesterday.

He was commenting on Dr. Charles Smith, who had conducted an autopsy on a 3-year-old girl known only as Katarina who died suddenly in 1995 in Toronto.

The girl's mother was later found not criminally responsible because of mental disorder for the death.

In court proceedings, Smith had commented that rigor mortis starts in the small muscles behind the eyes and mouth and slowly continues downward, affecting the whole body.

Butt said Smith was wrong on this basic point, noting that the stiffening of muscles that occurs after death starts in the smaller ones and moves to the larger ones.

"It has nothing to do with the condition of the body top-to-bottom," he said.

Butt is one of a number of internationally respected pathologists who have reviewed Smith's case file and found serious errors.

This prompted the province to call a public inquiry into pediatric forensic pathology in Ontario.

Smith was once deemed the top pediatric forensic pathologist in the country and he headed the forensic pathology unit at the Toronto Hospital for Sick Children.

The inquiry has been told that while Smith was educated as a pediatric pathologist, he lacked training in forensic pathology.

Meantime, Butt said Smith made another mistake in Katarina's case when he determined the cause of death to be asphyxia.

"It was my opinion that there was little information pathologically upon which to make this conclusion," he said, adding that the pathology in this case was too weak to point to an exact cause of death.

In parentheses, Smith had also written the word "filicide," which means the deliberate act of a parent killing her own child.

But the inquiry has heard that it's not a pathologist's job to weigh in on the manner of death, but rather just to give an opinion on the cause of death...

Dr. Jack Crane, a fully qualified forensic pathologist who reviewed several of Dr. Smith's cases for the independent review ordered by former Chief Coroner, Dr. Barry McLellan, told the Goudge Inquiry: "People who dabble in it (forensic pathology) can get themselves in -- into difficulty, into problems."

He certainly got that right.

Next: A Glimmer of Understanding: The Fatal Decision: Part Two;


"Think Dirty"; Part One: Two Words At The Heart Of The Inquiry;



Two words, containing only three syllables lie at the heart of the Goudge Inquiry: "Think Dirty."

They are contained in a protocol issued by former chief coroner Dr. James Young to all coroners, pathologists, and chiefs of police in Ontario on April 10, 1995.

The policy was ultimately dropped by Dr. Barry McLellan, Dr. Young's successor, after he became Chief Coroner in April, 2004;

The protocol read:

"Unfortunately, in this day and age, child abuse is a real issue, and it is extremely important that all members of the investigative team "Think Dirty."

They must actively investigate each case as potential child abuse, and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished, and all members of the team are satisfied with the conclusion."

During the nine years the protocol remained in effect, these words communicated through "think dirty" slides that were used in presentations to coroners throughout the province and other members of the death investigation teams.

The obvious danger of the new policy was that it could be interpreted as requiring local coroners and pathologists to act like police officers instead of as impartial doctors and scientists.

There was also a risk that it could encourage pathologists and prosecutors to feel that they were required to search for criminality behind every death of a child.

A risk that it could turn most innocent death of a child into a murder with all of the horrific consequences, to loving parents, families and caregivers that we have seen thus far at the Goudge Inquiry - especially since Dr. Young's new policy was introduced at a time of heightened public fear over child abuse and pressure on the authorities to do something about it.

At the very least, this Bloggist wonders if the new policy may have validated Dr. Charles Smith's suspicious approach to his work in his own mind - when he still had years of work to accomplish.

In fact, Dr. Young testified that he got the idea from a cop, adopted it, and used it in his own presentations.

Dr. Young told the Inquiry that the "Think Dirty" approach was formulated during a period of world-wide concern "that pediatric deaths weren't being properly investigated."

"(We) were very aware and there were discussions, again, at any forensic meeting about the difficulties in investigating pediatric deaths, and the fact that they -- children died of different things than adults did; and the very difficult job of sorting out metabolic disorders, SIDS, cases of Shaken Baby, cases of
subtle -- suffocation, of subtle child abuse, and dating of injuries, you know, to make sure that what was attributed to the death was -- was relevant," he told Commissioner Goudge.

Young testified that the new protocol was simply intended to remind people to look out for signs of criminality during the course of their investigations.-

Young stressed that, " It was not -- absolutely not, and it was never contemplated or discussed at any meeting I ever attended where the phrase was used, to mean that make cases -- make cases criminal matters when they aren't.

But he agreed with Commission Counsel Mark Sandler that, "with the benefit of -- of what we've learned since, it might be advisable for the Chief Coroner's Office to -- to develop another phrase to communicate the same sentiment."

The new policy troubled Dr. Ernest Cutz, a distinguished pathologist and researcher at the Hospital for Sick Children.

Dr. Cutz is one of the world's leading authorities on the Sudden Infant Death Syndrome (SIDS);

Cutz told the Inquiry he found the concept of "thinking dirty" inappropriate because he interpreted as saying, "you are implying guilt up front, and, you know, until proven otherwise."

"I use the balanced approach," he said. "Looking at the facts and evidence, you know, regardless of what the motto is."

Cutz said that it made sense to be alert to the possibility of criminality in those relatively few cases where there had been a history with law enforcement or involvement with a Children's Aid Society.

However, he objected to the protocol because, "too heavy on the side of the forensic" as contrasted with the function of "Looking (at) what is the cause of death and...what what are the diseases and mechanism underlying it."

Doctor Cutz noted that he had voiced his objections to the protocol to the late Dr. Larry Becker, Head of the Pathology Department, but was not aware if Dr. Becker passed his objections on to the Chief Coroner's Office.

He said, however, that he had seen reference in correspondence to a meeting at ended by senior officials of the Chief Coroners Office, including Dr. Bernard Chiasson, at which Dr. Becker raised his own concerns about the policy.

On January 21, 1997, Dr. Cutz wrote a letter to Dr. Chiasson at the Chief Coroner's Office requesting a meeting to discuss information he had received from Dr. Becker that the Coroner's office was considering removing himself and a colleague from the rotation for performing medico-legal autopsies at the hospital.

The transcript of Dr. Cutz's testimony on this subject reads as follows:

MS. JENNIFER MCALEER: (Commission Counsel); And what -- what else did Dr. Becker tell you?

DR. ERNEST CUTZ: Well, you know, he said that, you know, if -- if I want any -- any sort of explanation as to the reasons and/or, you know, what -- what -- how can one mediate the situation, I have to -- to see Dr. Chiasson.

MS. JENNIFER MCALEER: And did you, in fact, meet with Dr. Chiasson --

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: -- to discuss this issue?


MS. JENNIFER MCALEER: And what -- what was your recollection of those discussions?

DR. ERNEST CUTZ: Well, I sort of outline in my letter here that, you know, the -- my experience at doing these cases at the Hospital for Sick Children and
outlining my, you know, experience in the different kinds of conditions which include, you know, natural deaths as well as -- as well as cases of child maltreatment or suspected homicide. And I bring to his attention one (1)
particular illustrated case to show that I have the same level of concern and erudition in carrying out pathology investigations, and I give -- give him example of it.

MS. JENNIFER MCALEER: Well, did Dr. Chiasson explain to you why -- well, first of all, did he verify what Dr. Becker had told you, that there was a
prospect that you and Dr. Wilson would be removed from the roster doing medicolegal work? Did he tell you that was something they were considering?

DR. ERNEST CUTZ: Well, when I asked for the meeting I said, This is what I'd like to discuss with him. So he didn't sort of say, you know, You're going to
be removed. But, you know, we were discussing the -- the situation.

MS. JENNIFER MCALEER: And what was your understanding as a result of your letter and your meeting with Dr. Chiasson? Did you continue to perform
medicolegal autopsies?

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: And was your performance of those medicolegal autopsies restricted in any way?

DR. ERNEST CUTZ: No, it wasn't restricted. I continued, as before, doing the non- homicide cases. You know, when I asked as to what the reasons were for removing me, it was sort of very vague. Something saying I was soft on crime, and I didn't collab-- or cooperate with the police which came to me as a 1 total surprise.

MS. JENNIFER MCALEER: Okay. So who said you were soft on crime?

DR. ERNEST CUTZ: Dr. Chiasson. Or there was a perception of.

MS. JENNIFER MCALEER: And do you know what the basis of that perception was?

DR. ERNEST CUTZ: He didn't explain, didn't give examples.

MS. JENNIFER MCALEER: And -- and the second reason was because you had difficulty communicating with the police?

DR. ERNEST CUTZ: No, that I did not cooperate with the police, which came as a total surprise, as I don't recall any incident. I was most cooperative at all instances with the police. I had no reason to -- so it came as a total surprise to me.

MS. JENNIFER MCALEER: And did Dr. Chiasson explain to you what the basis of that concern was --

DR. ERNEST CUTZ: He said he has -- he has no specific examples.

MS. JENNIFER MCALEER: Okay. Did you discuss this issue with Dr. Smith?


MS. JENNIFER MCALEER: And after -- after this point in time, Dr. Cutz, you did continue to do medicolegal autopsies?

DR. ERNEST CUTZ: That's right. I thought the meeting with Dr. Chiasson was useful because we cleared the air, you know, this -- this -- to see what
the problems were. And, you know, actually I -- I -- part of the letter was -- you know, I gave him the breakdown of all the cases I did in the past five (5)
years, which was two hundred, twenty-five (225) cases, and -- and show him that, you know, it -- major portion were pediatric disease, which is no way anybody would have diagnosis outside of a pediatric centre. Okay. So -- so we -- we rendered a very valuable service to -- to making the right diagnosis for
the families. Okay. And then I show him the percentage of cases which went to inquests, which went to -- okay, which -- in every instance I was involved, a correct diagnosis was made, the crime was pursued, the crime was prosecuted and the person was jailed for -- for the crime.

For his part, Dr. Chaisson testified at the Inquiry that he had concerns about Dr. Cutz's and his colleague's "attitude over forensics."

Pressed by Commissioner Goudge over what he meant by their "attitude over forensics" Dr. Chiasson replied:

"From a pediatric pathology perspective, they were not insignificant, and -- and it wasn't simply the number of -- of cases as -- as much as my perception that when it came to cases they -- they weren't really as apprised at looking at injuries and the potential significance of -- of injuries as, was my view of, Dr. Smith, who was clearly interested in pediatric forensic pathology and -- and, you know, whose focus was in that - - that area."

The good news is that Dr. Barry McLellan put the "think dirty" protocol to rest when he became chief Coroner.

"(My) own teaching in recent years has been that it's important to keep an open mind. But, I can tell you that "think dirty" slides and the phrase "think dirty" was removed from many of the standard presentations that we were giving to members of the death investigation team".

"When I redid the presentation that the coroner's office gives as part of the major case management course, that was taken out of the course," McLellan explained.

"So, I can't say that there has been a specific effort to send out a communication saying, Don't think dirty, but the approach has been different through our educational courses, through our new courses for coroners, and the emphasis is to keep an open mind. And, as such, you know, we'll end up with the best quality of death investigation."

I will give the last word for this posting to Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, who told the Ontario Court of Appeal in the Mullins-Johnson case that new guidelines effectively tell Ontario's pathologists and coroners: "Don't think dirty; Think objectively. Think truth."


Wednesday, December 26, 2007

Children's Aid Societies Should Review Every Case Where Child Seized In Which Dr. Smith's Opinion Was Involved, Researchers Recommend;




The interests and rights of Children and parents who may have been victimized by erroneous pathology reports prepared by Dr. Charles Smith need to be protected," say the authors of a paper filed with the Inquiry.

The paper, by professors Nicholas Bala and Nico Trocme, is called "Child Protection Issues and Pediatric Forensic Pathology" and has been posted on the Inquiry's Web page.

Bala and Trocme note that while it is beyond the scope of the Inquiry's terms of reference to report on individual cases in which there has been a criminal investigation.

But they recommend that, "the Commission should make recommendations about the establishment of processes to promote the interests and rights of
children and parents who may have been victimized by erroneous pathology reports prepared by Dr. Smith."

The authors note that in England, after the discovery that Dr. Meadows had made some erroneous reports that had been relied upon to remove children from parental care, a review was undertaken by child welfare authorities of all cases in which he had been involved.

"In our view, consideration should be given to a similar review of every Children’s Aid Society file that involved an opinion from Dr. Smith", they say.

"If it is concluded that his opinion may have been erroneous or inconsistent with other evidence, and his opinion was influential in the handling of the case, the CAS should take all steps to provide redress and promote the interests of the children involved."

Bala and Trocme say the possible "steps" might include:

0: If any child who has not been adopted is in agency care, the agency should assess whether a return of the child to parental care is in the best interests of the child, and take all reasonable steps to support the reunification of parents and child;

0: If a child has been adopted, the establishing of some form of open adoption that would allow for some contact between the birth parents and children involved.

0: Reimbursement of any legal costs incurred by parents in any child protection proceedings that were in any significant measure based on the erroneous opinion of Dr. Smith.

0: Removal of names from the Child Abuse Register if there is no longer credible evidence of a history of abuse.

The most problematic area would appear those situations in which a child has been adopted as, "there is no legal basis for reversal of the adoption."

The authors state that, "While profoundly unfair and psychologically distressing to the birth parents involved, it must be recognized that removal of a child from a stable adoptive home and return to the care of birth parents would likely be psychologically traumatic to the child and contrary to the child’s best interests."

But they also acknowledge that Children's Aid Societies can be unwieldy, autocratic and barely accountable - and that a time-consuming, cumbersome court system can create the unacceptable delays which make it difficult to return children to their natural parents.

The Goudge Commission has heard disturbing evidence of siblings being seized from loving mothers at birth, grandparents being forced to pour their life-savings into fighting the Children's Aid Society for the return of the child, and the permanent loss of the child through adoption - so much sorrow - so much pain - all involving the flawed opinions of Dr. Charles Randal Smith.

This humble Bloggist only wonders why the province's Children's Aid Societies would need until Commissioner Goudge issues his report in April before commencing the suggested reviews based on information publicly available through the Inquiry.

Smith's Testimony In Three Child Protection Cases Revealed In Research Paper Commissioned By Inquiry;



Three child protection cases in which Dr. Charles Smith gave evidence about the cause of death of a sibling are discuses in a research paper commissioned by the Goudge Inquiry.

The paper, by professors Nicholas Bala and Nico Trocme, is called "Child Protection Issues and Pediatric Forensic Pathology" and has been posted on the Inquiry's Web page.

This valuable paper deals with the brutal collateral damage caused to families by flawed forensic pediatric pathology - and illustrates how "Dr. Smith's "impressive and extensive credentials" were put to work in the family court context.


Dr. Smith’s testimony was of central importance in the 1995 case of Children’s Aid Society of Haldimand-Norfolk v. D.C., which involved a newborn child.

Ten years earlier, the child’s father had been sentenced to five years in prison for manslaughter of one of his twin children from a previous relationship, both of whom had died suddenly in infancy.

Dr. Smith testified that one of the twins had died of a head injury and the other of either a head injury or asphyxiation.

Dr. Smith’s testimony was the principal evidence at trial that the twins’ deaths were not of natural causes.

Other witnesses at the 1995 child protection hearing testified as to the father’s gentle nature, and the mother of the child in question insisted that her husband was innocent.

The father consistently maintained that he did not cause the death of either twin, but did admit when cross-examined that “he must believe that [his daughter’s] cause of death was an injury to her head because a qualified specialist, Dr. Smith, said it was so.

On appeal, the child at issue in the 1995 trial was removed from his parents’ care; while the mother was permitted access to the child, the father was not.


In 1996, Dr. Smith provided expert medical testimony in Children’s Aid Society of Kingston v. M.T.

This case concerned two children whose sibling had died before either was born, a death that, after an autopsy performed close to the time of death, was classified as Sudden Infant Death Syndrome.

After the two later born children were abused, Dr. Smith performed an examination of the exhumed body of the first-born child and found skull fractures and a fractured femur. ...

On appeal, a new assessment of the father was done by a child abuse expert who said the father “showed evidence of the possibility of unusual and violent behavior...”

Dr Smith “expressed great concern about the credibility of the first autopsy” and concluded that the child did not die of natural causes, but perhaps of suffocation or his head injuries.

The judge noted Dr. Smith’s “impressive and extensive credentials” and ruled that the children should be placed in the care of their grandparents.

In this case, despite the apparently considerable weight accorded to Dr. Smith’s opinion by the judge, he was not alone in his conclusions about the child’s cause of death;

The parents themselves had also admitted that they had failed to care properly for their children, and the father, who testified under the protection of the Canada Evidence Act, admitted to a serious assault upon the deceased infant.


In Children’s Aid Society of Peel v. L.P., a 2003 trial regarding removal of two young children from the custody of their mother, the agency relied on testimony given by Dr. Smith about the deaths of two of their three older siblings.

When the mother’s first child died at five months of age in 1993, the death was determined by the original pathologist as “sudden infant death syndrome.”

A police investigation into the death of the first child resulted in Dr. Smith being consulted by the police.

He concluded that child abuse could not be proven as the cause of death,
and that the death should be classified, not as Sudden Infant Death Syndrome, but as Sudden unexplained Death (SUD).

After the mother’s second child died in 1997 in suspicious circumstances, an autopsy concluded that the cause of death was “undetermined” but not consistent with the mother’s explanation.

Dr. Smith performed a second examination and also concluded “in careful words” that no cause of death could be found, though the doctor stated that the cause of death had not been found but was “consistent with asphyxial mechanism” [suffocation].

The mother was charged and found guilty by a jury of manslaughter;

the jury was likely influenced not only by the expert evidence, but by the mother’s changing accounts of the death of her child.

The mother’s third child was placed in the care of his father, and three children born subsequently were apprehended at birth and made permanent wards.

There are some eerie resemblances in these cases to some of the criminal cases that are being reviewed by the Goudge Inquiry.

First, Dr. Smith's reputation as an expert forensic pathologist - which we now know did not reflect his actual training and ability - were a powerful force in the courtroom.

Second, as illustrated in the first case, Dr. Smith was often the only witness in the case to testify that the death was not due to natural causes; and,

Third, Dr. Smith could cast an opinion in such a way as to point to the parents responsibility to the death - even where he could not specify the cause of death - as in the third case, where Bala and Trocme report: "Dr. Smith performed a second examination and also concluded “in careful words” that no cause of death could be found, though the doctor stated that the cause of death had not been found but was “consistent with asphyxial mechanism” [suffocation].


More Blame Game: Former Secretary testifies Dr. Charles Smith Blamed Staff For His Failure To Respond Promptly To Phone Calls:



In a previous Blog I reported Maxine Johnson's testimony at the Goudge Inquiry that she was upset to learn that Dr. Smith had blamed a lack of administrative resources for his failure to produce key reports on time.

(See previous posting: The Blame Game: Dr. Charles Smith's dubious claim that his reports were delayed because of lack of administrative support.)J

Johnson, who initially served in a secretarial pool that assisted the pathologists at the Hospital For Sick Children, and later worked directly for him, also testified that Smith blamed the secretarial staff for the many calls from people such as prosecutors, police officers, and anxious family members, that he did not return.

Johnson told Commissioner Stephen Goudge that the secretaries developed a special system for drawing the messages to his attention: They attached them to his computer monitor with Scotch tape.

She explained to Commission Counsel Robert Centa that they took this precaution:

"Because we -- the secretaries always seem to, sort of, be blamed for him not
getting his messages.

He would say, Oh, I didn't get the message.

So we developed a -- a system, whereas -- if you put it on his computer; we always know that he's going to sit in his chair and turn around to his computer screen,
so the message would be there.

And if the computer screen was full, which sometimes it was, we would put it on his chair, because he'd have to remove it to be able to sit, so he would
definitely get the message.

Johnson also expressed the staff's concern that important requests made by Smith's colleagues at the Hospital for the results Dr. Smith had conducted on specimens from living patients were languishing without response.

For example, Centa showed her an email sent to Dr. Smith, with a blind copy to her, dated February 20, 2002, which read, in part: "Dr. Grant and his staff has been calling several times to get results on specimens since December. They state that this is a, 'HAM/ONC (Hematology/Oncology) Case'."

Johnson agreed with Centa that the delay was serious because the results were needed in order to proceed for possible radiation treatment and ..."it's a very long time for surgical specimens to still be signed-out.

She responded to the urgency by sending a copy of the email to the late Dr. Larry Becker, who was head of the Hospital's Pathology Department at the time, in order to prompt his intervention.

"There were ongoing issues in terms of Dr. Smith getting his reports out in a timely manner (at the time," Johnson said.

Johnson's testimony appears to back up the comment of an unnamed senior official of the Chief Coroner's Office who observed at a high level meeting that Dr. Smith would not take responsibility for his acts - and tended to blame others.

This Bloggist cannot understand why the famed Hospital did not fire Smith years earlier in the face of its knowledge of his well documented pattern of delays which posed significant risks to the safety and treatment of its trusting patients and their families.

Where was its sense of responsibility?


Tuesday, December 25, 2007

Goudge Inquiry: Dr. Smith's Office: Part Three;



Previous postings indicated that Dr. Charles Smith's office at the Hospital For Sick Children in Toronto was a chaotic mess.

(See previous postings: Dr. Smith's office Part One, and Dr. Smith's office Part Two (The photo));

Although Smith's superiors at the Hospital and senior officials of the Chief Coroner's office were regularly exposed to this mess - and he was often losing exhibits and failing to produce key forensic exhibits in a timely fashion - Smith was never ordered to clean it up during his two decades at the hospital.

The Goudge an inquiry has now heard a first hand description of Dr. Smith's office from Maxine Johnson, who was a member of a secretarial pool that assisted the Hospital's pathologists.

"There were some tissues, you know, that were dried out in plastic containers," Johnson told Commissioner Stephen Goudge.

"There was some -- sort of just some skeletal bones in another little dish.

There was a little, sort of, a wrist bead.

Those kids -- the children who were usually sick; they make these beads for their wrists, so each time they have a procedure, you add a bead; there was one (1) of those."

Johnson also noted that there were "(tissue) blocks from police evidence that, you know, usually is not in a pathologist's office..." - and she described a clutter of "opened and unopened correspondence."

Johnson testified that she was so troubled by the state of Smith's office that she once asked one of her colleagues to take a photo of it so that Smith might be encouraged to clean up his act through a here is how it looked like then and here is how it looks like now process.

But the transcript of her evidence indicates that this initiative came to no avail:

Mr. Robert Centa (Commission lawyer): And did you show him
those photos?


MR. ROBERT CENTA: And did it have the
desired affect?


MR. ROBERT CENTA: And Dr. Smith ever ask
you to clean up his office?


MR. ROBERT CENTA: Did anyone ever ask you
to clean up his office?


MR. ROBERT CENTA: What reasons did those
people give?

MS. MAXINE JOHNSON: Usually it's because, you know, we needed to find slides of cases that had not been signed out by Dr. Smith and so now there was an urgency to get those cases signed out. And someone else was -- you know, another pathologist was willing to sign the cases out, but of course you had to first find the slides and the paperwork that went with the report in
order to do that.

Johnson's account of the dried out tissue samples in plastic containers, skeletal bones in a little dish, and beads that once adorned dead children's wrists, scattered through Smith's office, makes me wonder about the reverence Dr. Smith often professed towards his work on dead children - especially to reporters;

How could anyone one who had respect for these young children allow their their body parts to be left hanging so anonymously around his office, along with whatever else he may have been hoarding in that cluttered space over the years?

Dr. Smith also professed to be a religious person - to the point of listing some of his religious affiliations in his Curriculum Vitae.

Could any truly religious person treat dead children and their families like this?

Next posting: How Maxine Johnson discovered the missing Mullins-Johnson forensic exhibits; A first-person account;

Harold Levy;;

Sunday, December 23, 2007

Smith and the Media: Part Eight: Damage Control and Sharon's Case;

Occasionally a public inquiry brings to light a hitherto secret government document which would otherwise never see the light of day.

The "housebook note" contained in the "Overview Report" of "Sharon's" case is a perfect example of such a document.

According to the overview report, it was prepared on January 23, 2001, by the Ministry of the Solicitor General on the subject, "Crown withdraws murder charges in the 1997 death of a 7-year-old Kingston girl."

Use of the anticipated headline tells me that the note has been prepared specifically in response to headlines expected to be generated by withdrawal of the murder charges that had been laid in the notorious case.

This appeared to me to be a classic exercise in damage control in anticipation of public outrage over the fact that a mother had been charged with murdering her daughter, held behind bars for several years, and had her other children seized by the State, because it's star pathologist, Dr. Charles Smith, could not distinguish between knife wounds and wounds inflicted by a Pit Bull.

I was particularly fascinated that the "housebook note" goes on to indicate that "the issue lead identified was Dr. Young," - referring to Dr. James Young, who at the time was both Assistant Deputy Solicitor General and Chief Coroner of Ontario.

Dr. Young acknowledged under questioning at the Goudge Inquiry, that the Chief Coroner (himself at the time) reports to the Assistant Deputy Solicitor General(also himself at the time);

However, he testified that there were administrative safeguards in place to prevent conflicts of interest.

(I will leave it to my dear readers to determine for themselves if this administrative arrangement is consistent with any notion of the independence of the Chief Coroner's Office from government);

A previous posting has noted that on January 24, 2001 - the day before the charges were withdrawn - the prosecutor faxed Dr. Young a draft version of his submissions to Court regarding the withdrawal of the charges - and that the prosecutor acceded to Dr. Young's request to delete two paragraphs from the submissions.

According to an article in the Kingston-Whig Standard on January 26, 2001, Young said the statement was altered - at his request - to remove statements which "incorrectly linked the decision to exhume Sharon's body in the summer of 1999 to the loss of casting of her skull." (Dr. Charles Smith had lost the castings of Sharon's skull which he had made during the autopsy;)

After identifying Dr. Young as the "issue lead," the "housebook note" goes on to lay out, "the response indicated to the question, "What is the status of of the coroner's investigation into the death of Sharon?" as follows:

0: I am aware of this case and the controversy surrounding it. The Crown has withdrawn the charges because of the limited prospect of conviction.

0: The office if the Chief Coroner became aware of the different theories regarding the cause of death and arranged an exhumation to gather further information. Defence experts were invited to participate. (As if Sharon's mother's defence lawyers did not have to move heaven and earth to get the police and prosecutors to admit that their pathological evidence was terribly flawed - and that Sharon had not been murdered. H.L.);

0: The Office of the Chief Coroner arranged for an additional expert to review evidence from the initial investigation and the exhumation in order to provide the Crown with further information upon which to reach a decision;

0: The Office of the Chief Coroner is reviewing the case to learn any possible lessons from it. (A review which never took place in spite of Dr. Young's public assurances that one would be held H.L);

0: It is inappropriate for me to comment on the opinions of experts retained by the Office of the Chief Coroner regarding a death investigation.

The "overview report" also indicates that the Solicitor General's ministry also identified Dr. Young as the "issue lead" on two "issue notes" relating to the status of the Coroner's investigation, "into the case of a withdrawn murder charges."

The good news is that ultimately the government's damage control failed - as years later another government would order an independent review of Dr. Charles Smith's work in Sharon's case, and many other cases;

This review would expose the failure of the Chief Coroner's Office to reign in Dr. Smith - in spite of the miscarriages of justice that were beginning to pile up because of his substandard performance.

The bad news is that by focusing on damage control - rather than on the need for transparency and the need to prevent future miscarriages of justice - the government of the day and the Chief Coroner's Office lost the opportunity to protect other vulnerable parents and caregivers like Sharon's mother, from being put through similar hellish experiences because of Dr. Smith.


Smith And the Media: Part Seven: My Favourite Exhibit;



During the six or seven years that I have been reporting on Dr. Charles Smith I have always had the feeling that my telephone calls to him for comment were not going unnoticed in the Chief Coroner's Office;

That feeling was recently substantiated by a letter introduced into evidence at the Goudge inquiry.

The letter was sent by Dr. Smith to then Chief Coroner Dr. James Young, Dr. Barry McLellan, Young's successor, and Jeff Mainland, an official, on April 2, 2002, under the subject heading , "Brenda Waudby/Toronto Star.

It reads as follows:

J, B and J;

Harold Levy (who is not my favourite journalist) at the Toronto Star just phoned to get a “No comment” from me concerning the “Jenna” case.

He is doing a follow-up story on his earlier story on the “Jenna” case. Brenda phoned him to say that the CPSO (College of Physicians and Surgeons of Ontario) has decided to do a review of the case, and has selected a panel of three people: A forensic pathologist, an anatomic pathologist, and a pediatrician. (Just how accurate this information is, I do not know.)

Harold phoned me to get my response and I simply told him that because this death is under criminal investigation, I am unable to comment on any aspect of it.

I am, in fact, unaware of what the College is doing, and certainly didn't know anything about the make-up of the review panel. As recently as last week, neither did the lawyers for McCarthy Tetrault.

But if they are going to have outside experts review this case while it is under criminal investigation, somewhere down the road it will make any potential court proceedings quite interesting!! (Dr. Smith's explanation marks);

Just thought you would like to know,


P.S. When I was driving down the laneway this morning in the snow fall, I realized that many weeks ago, I had arranged for the local pool company to open it up tomorrow. I don't think it was my brightest move.

I am inclined to agree;

"The Charles Smith Blog" is now back in action after a brief seasonal rest.

Bearing Dr. Smith's seal of disapproval with great pride, I remain,

Harold Levy;;

Tuesday, December 18, 2007

The Blame Game: Dr. Charles Smith's Dubious Claim That His Reports Were Delayed Because Of Lack Of Administrative Support;




Dr. Charles Smith testified in the case of a woman charged with murdering her son that he was not able to produce his report in a timely fashion because he did not have access to secretarial support.

Here is his testimony:

COUNSEL: These cases take a long time to come to court, and I say this with utmost respect, but your report took a long time in getting to us, and is there any explanation for that?"

DR. Smith: "Yes there is actually. First of all I'm not fast with reports. That is the first statement.

The second statement is that we use examination techniques especially for the brain, which take a lot longer than is employed in a number of different institutions. And the asphyxiation examination techniques we use of a brain which has been profoundly injured by edema and swelling take even longer, so that's the second statement. T

The third statement has nothing to do with these factors. The third statement is that thanks to government cutbacks, I no longer have a secretary, so I have to actually type my own reports, and any report that gets out is because I've sat there at 8:00 at night typing it myself. And so I did a flurry of reports earlier this year, and then with my other activities didn't actually write the next group of reports out and finalize them until during the summer months. So the honesty is that while there are reasons for some delay, the truth of matter is the rate limiting step is the fact that I have to do all the work myself."

As will be seen from the following portion of a transcript of her testimony at the Goudge Inquiry, Maxine Johnson saw matters very differently.

Johnson began working for Dr. Smith as part of a secretarial pool in 1989, and worked directly for him from 2001 to his departure from the hospital.

She is responding to questions posed by Commission Counsel Robert Centa in relation to the 1994 case:

Ms. Johnson, with respect to the third
statement that Dr. Smith has provided, do you agree with

MS. MAXINE JOHNSON: Absolutely not.

MR. ROBERT CENTA: And to the best of your
knowledge, did government cutbacks ever result in Dr.
Smith not having access to secretarial services in

MS. MAXINE JOHNSON: No, it did not.

MR. ROBERT CENTA: Did government cutbacks
ever force Dr. Smith to type his own reports?

MS. MAXINE JOHNSON: No, as far as I'm
concerned, not.

MR. ROBERT CENTA: In 1994, was there ever
a time that Dr. Smith could only get a report out if he
typed it himself?


MR. ROBERT CENTA: And during your time in
pathology did Dr. Smith ever tell you that he had
inadequate secretarial support to permit him to complete
his reports of post-mortem examination in a timely

MS. MAXINE JOHNSON: No, he did not.

MR. ROBERT CENTA: Did he ever tell you
that the secretaries who were assigned to him were not
completing his reports of post-mortem examination in a
timely fashion?


MR. ROBERT CENTA: And did he ever tell
you the -- that he was forced to type his own reports
because of insufficient secretarial support?

MS. MAXINE JOHNSON: Dr. Smith was never
forced to type his report as far as we were cons --
concerned. That was one (1) of the functions of our jobs
as admin assistants, was to facilitate getting those
reports completed. Dr. Smith made a choice to type his
own reports...

MR. ROBERT CENTA: And did any of Dr.
Smith's -- of the assistants assigned to Dr. Smith, did
they ever tell you that they could not complete their work
for him in a timely fashion?


MR. ROBERT CENTA: Now, from your
observations of how Dr. Smith worked, would -- if he had
access to greater secretarial services, would that have
affected the turnaround time on his reports?



MS. MAXINE JOHNSON: Because he loved to
type them himself.

because he loved to type them?

MS. MAXINE JOHNSON: He liked to type them
himself. He didn't -- he just didn't give them to us.

always type them himself?

MS. MAXINE JOHNSON: As far as I know,

MR. ROBERT CENTA: And if he'd had
increased access to secretarial resources, would that
have, in your -- based on your observations, made him more
responsive to calls from individuals seeking to contact
MS. MAXINE JOHNSON: I don't think it
would matter because, as I said, we were always available.

Maxine Johnson initially spoke highly of Dr. Smith in her testimony when asked for her personal opinion of her Colleague.

"You know, he's really
a great guy," she told Centa during her direct examination.

"He's got a great personality.

If you wanted to know something about the computer, the Mac, just ask
him because he was -- he was well versed.

He -- he -- you know, he's sociable and definitely not a difficult
person to -- to deal with, so secretaries actually liked working for him because he was pleasant.

So we would -- you know, whatever he needed we were always available.

If you had to compare his personality type to another pathologist, for instance, you would always want to do Charles' work because he just made it -- you know, if he wanted it done we were there.

By contrast, a sense of betrayal appears in her testimony when she is questioned by
Luisa Ritacca, counsel for the Chief Coroner's Office, about evidence which suggested that Smith told the Coroner's Office that he couldn't produce his reports in time because he lacked administrative support.

"It wasn't -- it wasn't -- and it wasn't so much gossip. It was -- you -- you hear the blame game, and it's all what -- you know, you hear," Johnson testified.

"Oh, you know, apparently Dr. Smith went to the Coroner's Office, and said that he didn't enough secretaries or he didn't have any secretarial support.

And, you know, we would -- as -- as an administrative group -- would be hurt because we knew that that wasn't true.

Let me -- and at that time, there were -- in 1989, for instance, he's -- he had his own secretary, until 1994, that was exclusively his..."

In one of his rare interruptions of a witness's testimony, Commissioner Goudge asked Johnson how how her perception that Smith was playing the blame-game squared "with the nice-guy sense you had of Dr. Smith."

"He is a nice guy," Johnson replied.

"No, he is -- you know, to answer your question,
Commissioner, Dr. Smith is very personable.

It's very hard to dislike Dr. Smith because he is -- you know, he
makes you feel at easy -- he's very inclusive when he's
having discussions...

(But) you know, the -- the downside to that is -- is, you know, why would he say that he didn't have enough secretarial support when he knew that that really wasn't true?"

Maxine Johnson's testimony provides an excellent example of a quality of Dr. Smith's that was noted by a senior official in attendance at a high level meeting of senior officials of the Chief Coroner's Office which had been called to consider his fate.

As noted in an earlier posting, the official noted that Dr. Smith is unable to accept responsibility for his mistakes and tends to cast the blame on others.

Her testimony also raises disturbing questions about Dr. Smith's credibility under oath in a murder trial where the the stakes for the accused are so high and public confidence in the Chief Coroner's office is so crucial.

Most importantly, Johnson's testimony is a good reminder that Dr. Smith and those officials of the Chief Coroner's office who were supposed to be supervising him for the protection of the public cannot be allowed to slide off the hook because of a lack of administrative resources.

The so-called "lack of resources" issue raised in Court by Dr. Smith and also advanced by former Chief Coroner Dr. James Young in his testimony to the inquiry is a red herring.

It should not be allowed to cloak the responsibility Smith's personal responsibility for his actions - and the responsibility of the Hospital for Sick Children and the Chief Coroner's Office for breaching the public trust.


Maxine Johnson's Disturbing First Hand Account Of Locating The Missing Mullins-Johnson Forensic Exhibits;

Maxine Johnson, who once worked in a secretarial pool serving pathologists at the Hospital for Sick Children, has given disturbing testimony on her discovery of the missing Mullins-Johnson slides.

She told the Goudge Inquiry that she believes that on several occasions key forensic materials were placed on a shelf in Dr. Charles Smith's office at the Hospital for Sick Children in Toronto after the office had already been searched.

(There has been evidence at the Inquiry that Dr. Smith had access to his office during the period that the search was conducted);

By way of context, lawyers for the Association in Defence of the Wrongly Convicted had been seeking the evidence from Mullins-Johnson's first degree murder trial since early 2003, so they could be sent to an independent specialist for analysis in support of his application for a Ministerial Review.

Crown law officers had to enlist the support of the police to locate the materials after Smith, who had been sent them by the local Sault Ste. Marie pathologist, was unable to hand them over.

Without these exhibits Mullins-Johnson would not be able to prove that he had not murdered his 4-year-old niece Valin.

Here is a chronology of Maxine Johnson's efforts to locate the missing exhibits as per her testimony at the Inquiry:

Friday November 26, 2004;

Ms. Johnson is summoned a meeting attended by herself, Deputy Chief Coroner Dr. James Cairns, Dr. Smith, and Dorothy Zwolakowski, an official of the Chief Coroner's Office, to discuss the missing exhibits.

After advising the meeting that she had not seen any exhibits from the Mullins-Johnson case, she was asked to go immediately with Zwolakowski to conduct a search of Smith's office.

Johnson testified that they were able to locate "a couple of (microscopic) slides" that day.

Monday November 29, 2004;

Johnson locates twenty (20) microscopic slides on a shelf in Smith's office which she described as being "fairly messy" that day.

She testified that it didn't take long to find the slides "because Dorothy and I had spent a lot of time the day prior -- the -- of the Friday prior, sorry -- and we 1didn't find them, so I was really happy that all of a sudden, you know, they were there."

MAY 6, 2005;
Johnson is surprised to find an additional ten (10) glass slides and twenty-eight (28) paraffin blocks on a shelf in Smith's office while doing "just another clean up"- she wasn't looking for any of the Mullins-Johnson materials at the time.
the stuff.

She said she located them in a cupboard on the first shelf of a cupboard as seen while entering the office.

Maxine Johnson's testimony raised a troubling question in the mind of lawyer Phillip Campbell, who represents seven unnamed persons at the Inquiry; How could the forensic evidence from the Mullins-Johnson keep showing up in locations that had already been thoroughly searched?

Here is Campbell's cross-examination on the issue - and Johnson's startling reply.

listened to your evidence about find -- beginning your
search on Friday the 29th (sic) of November for the slides
once this had become the focus of everybody's attention
and then finding them on the morning of the 29th.
Again, I think some of us listening weren't
completely clear what your own perception of -- of that
was. You found the slides quickly and easily on the
Monday morning, is that right?


MR. PHILLIP CAMPBELL: Was it your own
appreciation of this, at that time, that -- on the Friday,
you had looked in the place where you found them on the


MR. PHILLIP CAMPBELL: And did you draw
from that the inference that they had been placed in the
position where you found them between the Friday and the

MS. MAXINE JOHNSON: Yes, I did because we
did spend a lot of time, and we did look everywhere for

MR. PHILLIP CAMPBELL: Did you -- at the
time having formed that impression -- did you discuss it
with anybody else? With Dorothy or -- or anybody else who
was fam -- aware of this search in progress?

MS. MAXINE JOHNSON: Sure, I told Dorothy
that, you know, I thought it was kind of strange that we had looked, I mean, and we spent a lot of time looking and then all of a sudden --

in the same place on Friday --


found them on Monday?

MS. MAXINE JOHNSON: Yes, we did. I



completely conversant with this history, but you found a
good deal more related to the case some months later?


MR. PHILLIP CAMPBELL: And had you --
wherever you found that, had you looked in that location
on the November 26th and 29th searches?

MS. MAXINE JOHNSON: Yes, we did.

MR. PHILLIP CAMPBELL: And you formed the
same inference that between the end of the November 26th
to 29th search, and your later discovery of this material,
it had been put in the position where you finally found


Assuming that this inference is correct - the obvious question is who would have had a motive to keep positioning the forensic materials in a position where they would have been found and turned over to the Chief Coroner's Office.

Smith is an obvious suspect - if Johnson's sworn evidence is to be believed.

He is the last person known to have had the materials and he is aware at this time that that the police have been seeking them.

He must know that there could be serious consequences if prosecutors ever concluded that he had deliberately frustrated a police investigation.

Moreover, there has been evidence before the inquiry that Smith told Deputy Chief Coroner Cairns that he had kept a key exhibit in the Waudby cases at his home - and as reported in a previous Blog, police were discussing the possibility of laying charges against Smith - apparently in connection with that piece of evidence.

On the other hand, not a single witness has testified that they saw Smith place any forensic materials on the shelf - and no witnesses have been called at the Inquiry
to back up Johnson's testimony.

Smith's lawyers did not cross-examine Johnson on any of her testimony;

Dr. Smith will have the chance to offer his side of the story when he takes the witness stand on January 28;

A final point;

The Overview Report on the Mullins-Johnson case notes that Crown lawyer Phillip Downes, prepared a memo to file regarding a telephone call he had with Dr. Smith on December 29th, 2003.

The memo states:

"Spoke by telephone to Dr. Smith at 9:45 a.m. today.

He had requested his assistant to search the archive for the material.

Their first search had proved fruitless.

He thinks samples may not be there.

He will take another look when his assistant returns next week."

As the transcript indicates, Johnson did corroborate the information given by Smith to Downes.

MR. ROBERT CENTA: Now, Ms. Johnson, you said earlier that as
of -- from 2001 onward, Dr. Smith often looked to you to
provide secretarial assistance?

MS. MAXINE JOHNSON: Yes, he did.

MR. ROBERT CENTA: And in December 2003,
who would Dr. Smith likely have asked to assist him with
this kind of task?


MR. ROBERT CENTA: And do you have any
recollection of Dr. Smith asking you to search the archive
for slides and blocks related from his consultation report
on Valin's case?



Friday, December 7, 2007




Dear Readers of "The Charles Smith Blog."

Just a word or two to let you know that I am about to take a "seasonal rest" from the contingencies of the Blog.

The Blog will resume - utterly recharged - in several weeks;

I therefore wish you all - wherever you are - my best wishes of the season.

Before signing off for the next several weeks, I would like to mention an excellent story on Sherry Sherret in the current (December 2007) issue of Chatelaine by author Derek Finkle, under the heading: "Falsely Accused: After Prison A Mother Fights Back."

I have devoted a series of Blogs to Ms. Sherret's ordeal under the heading, "Joshua's case";

This was the case in which Dr.Smith testified that even though he could not be certain that Joshua's death had been no accident beyond a reasonable doubt... "If I was a betting man, I would bet that his death was non-accidental."

So much for bringing Las Vegas into the criminal courtroom.

I really like Finkle's description, "that Sherret and those around her had been hit by one of the biggest wrecking balls ever to smash its way through the Canadian justice system."

An excellent read.

There will be lots of action at the Goudge Inquiry over the next couple of weeks - including our first opportunity to hear evidence that will take us into the heart of the Hospital for Sick Children during the Smith years.

Here is the witness schedule for those that wish to follow the Inquiry live or through the transcripts published the next day.

December 7, 10 & 11, 2007
Dr. David Chiasson, former Chief Forensic Pathologist for the Province of Ontario and Director of the Pediatric Forensic Pathology Unit, Hospital for Sick Children

December 12, 13 & 14, 2007
Dr. Helen Whitwell, Forensic Pathologist, U.K.
Dr. Pekka Saukko, Professor of Forensic Medicine, University of Turku, Finland

December 17, 2007
Maxine Johnson, Administrative Coordinator, Hospital for Sick Children (HSC), Pathology Division
Dr. Don Perrin, Pathologists' Assistant, HSC

December 18 & 19, 2007
Dr. Taylor, Head of the Division of Pathology, HSC
Dr. Cutz, Pathologist, HSC

December 20 & 21, 2007
Dr. Joseph de Nanassy, Head, Division of Anatomical Pathology, Children's Hospital of Eastern Ontario (CHEO)
Dr. Jean Michaud, Head, Department of Pathology and Laboratory Medicine, Ottawa Hospital and CHEO
Dr. Blair Carpenter, Head, Division of Anatomical Pathology, CHEO (past)

December 21: Adjourned for holidays;

See you in a few weeks.

Season's Greetings.

Harold Levy;;

Wednesday, December 5, 2007

Goudge Inquiry: The OPP (Ontario Provincial Police) letter: Part Four: Was This The Real Dr. Charles Smith?

To be fair, the letter from OPP Inspector Szarka to then Chief Coroner Dr. James Young contains unproven allegations.

If the matter ever came to court, each one of us would have to decide, who, in all of the circumstances, we would be inclined to believe: The police officer or Dr. Smith.

However, this Bloggist thinks it would be a very interesting exercise to give Dr. Smith the benefit of the doubt, and treat all of the facts set out in the letter as a hypothetical problem posing the question: What kind of human being is depicted here?

Let me take the first shot.

For a start, the driver is clearly an arrogant bully, who will not hesitate to use threats - even very ugly threats - in order to get his way.

I would also surmise that the driver is not very concerned that his conduct may come back in some way to haunt him - probably because he is confidant that his superiors will undoubtedly cover it up.

The driver also evidences a huge, swollen sense of his own importance, and does not hesitate to trade on his stature in order to get his way.

He clearly does not have any respect for the Officer - who is just doing her difficult job - and I wonder if he would have picked on a male officer in the same belligerent way.

Nor does he have any respect for the institutions he serves - because someone who did would never threaten, out of spite, to deny his office's services to people who are enduring unbearable personal grief.

There is no way the driver in this hypothetical example could be the Dr. Charles Smith admired for so many years by Deputy Coroner James Cairns who saw him as "a very sincere religious person" who could be expected to tell the truth.

Nor could the driver be the Dr. Charles Smith who Globe and Mail columnist Christie Blatchford recently said she saw as: "a compelling witness, an odd duck but so seemingly square – he pronounced himself a strong Christian, had a soft voice and gentle mannerisms, and used to wear cartoon-print ties to court so as to remind jurors he had feelings too."

I am confident that the readers of this Blog will have no trouble making up their own minds as to which one is the real Dr. Charles Smith.

Harold Levy;;

Goudge Inquiry: OPP (Ontario Provincial Police Letter); Part Three: Dr. Young's Testimony: A "Nice Letter" On Charles Smith's Behalf?

Previous postings set out correspondence between then Chief Coroner Dr. James Young and an OPP police inspector over a Constable's allegations that Dr. Smith was so upset with a speeding ticket that he threatened to cut off the delivery of his office's forensic pediatric pathology services to the City of Cobourg.

One of the most troubling aspects of the Inspector's letter is the allegation that Dr. Smith misused his position as Head of the Pediatric Forensic Pathology Unit identified himself as head of Ontario's Pediatric Forensic Pathology Unit."

Let's pause here.

Dr. Smith had been suspended from from performing medico-legal autopsies in 2001 - because of the growing growing controversy surrounding his work.

However, Dr. Young permitted him to keep his title and remain on two prestigious death review committees which would all remain on his Curriculum Vitae - and which also suggested to the outside world that the Chief Coroner's Office still had confidence in his work.

But in his testimony yesterday, in response to questioning by lawyer Peter Wardle, Dr. Young made it seem that Dr. Smith's title was little more than a blip on an Smith's title as well, Dr. Young replied:

"I didn't because I didn't see the title -- I didn't see the title as meaning anything," Young told Commissioner Goudge.

"I didn't see the title as being anything but an administrative job. No one else wanted to do it.

And frankly, if he went to court, the title would be valueless, because he -- there was so much else swirling around Dr. Smith at this point in time,
that a defence attorney, the least of his problems would be the title.

He's got enormous other problems.

So I just -- I didn't view the title or the -- you know, I had him doing a job that no one else wanted to do and I didn't spend the time or think about the title in these terms."

Wardle also confronted Young with the suggestion that that, "In fact, what you did, sir, was you wrote a nice letter back to the officer on Dr. Smith's behalf saying that he regretted what had taken place, isn't that right?"

Here's Dr. Young's reply: " Well, I -- I had a discussion with him, and he told me his side of it and I -- I told Dr. Smith he was wrong and that -- that his side was not believable, and -- and he owed the police an apology."

An upcoming (The OPP (Ontario Provincial Police) Letter; Part Four;) will set out this Blogster's views on what the incident resulting in the OPP Inspector's letter says about Dr. Charles Smith;

Harold Levy;;

Goudge Inquiry: The OPP (Ontario Provincial Police) Letter: Part Two; Dr. Young's reply;

A previous posting referred to a letter sent to a letter sent to former Chief Coroner Dr. James Young from an OPP Inspector who wrote that Dr. Smith was so angry about a speeding ticket that he threatened to cut off his office's services to families and their children in the Cobourg area.

(See previous posting: The OPP (Ontario Provincial Police) letter; Part One: (Unabridged);

Here is Dr. Young's reply to Inspector J.J. Szarka, dated December 23, 2002.

I am running the letter unabridged for the benefit of the readers of this Blog;

Dear Inspector Szarka:

Re: Your file Reference Number 100 Dr. Charles Smith;

I am replying to your letter of November 18, 2002 which was received at the Office of the Chief Coroner on November 22, 2002.

The complaint has been reviewed with Dr. Smith. Without agreeing to the accuracy of the description of what took place, he sincerely regrets any suggestion or impression that services would not be available.

Moreover, the Office of the Chief Coroner wants to assure your officers that the provision of services was never in jeopardy.

Thank you for bringing this unfortunate incident to my attention.


James G. Young, MD
Chief Coroner for Ontario;

A future posting (Goudge Inquiry: OPP Letter; Part Three) will report on Dr. Young's testimony on the OPP letter to the Inquiry;

Harold Levy;;

Goudge Inquiry: The OPP (Ontario Provincial Police) Letter: Part One: ( Unabridged);

The real Dr. Charles Randal Smith may have emerged in a letter filed at the Inquiry yesterday.

The letter, dated 18 November, 2002, is on the letterhead of the Northumberland OPP - Cobourg detachment.

It is addressed to Chief Coroner Dr. James Young and signed by Inspector J.J. (Jim) Szarka, Inspector and Detachment Commander.

I am running the letter in its entirety without editorial comment for the benefit of the readers of this Blog. (My comments will follow in a later posting);

"Dear Dr. Young.

An officer from my detachment has contacted me about the circumstances of a traffic stop that I feel you should be aware of.

The stop took place on the 401 Highway near Percy Street in Cramahe Township on the 9th of November, 2002. Constable Nancy Wagner advised the driver she had clocked him at 136 km/hr and asked if he had a reason for traveling at that speed. He indicated "I was passing". There was one other occupant in the passenger seat, being an 18-20 year old male. The officer showed some discretion and issued the driver a ticket for 115 km/hr which would result in no demerit points (instead of 4) and approximately $200.00 less of a fine.

The driver got angry and said "did you not see my license plate?" The officer said "Yes sir". He then said "Do you know who I am, I am the head of Pediatric Forensic Pathology for this province." He asked "What office do you work out of?" The officer responded "Northumberland OPP, Cobourg office."

He then said "Next time Cobourg needs forensics on a child they won't get one from our office."

The officer asked "So you are denying Cobourg your services because you got a speeding ticket?" He then responded "Yes." The officer clarified "You are going to risk an investigation for a family and child because you got a speeding ticket?" He again motioned with a head nod up and down. The officer advised the motorist she would be speaking to her Inspector about the matter and he quickly drove off.

Constable Wagner was obviously very concerned by the statements made to her. I do not think I need to comment further about the seriousness of this matter.

I look forward to hearing from you in relation to this issue.

Signed. J. Szarka;

Next posting: Dr. Young's reply;

Harold Levy;;

Tuesday, December 4, 2007

Goudge Inquiry: Would You Call This "Appropriate Objectivity?"

Earlier this week, Inquiry lawyer Mark Sandler asked former Chief Coroner Dr. James Young if he believed the Chief Coroner's office had showed "appropriate objectivity" when evaluating the information coming forth about Dr. Charles Smith.

Sandler then rephrased his question to ask if, given the state of Dr. Young's current knowledge, "the Office failed to see the alarm bells or red flags concerning Dr. Smith because it was so invested with Dr. Smith and the work that he was doing with the Coroner's Office?"

Dr. Young took umbrage with this suggestion and responded by pointing the finger at unnamed defence lawyers, police officers and crown attorneys who, he alleged, had failed to provide him with feedback about Smith from the courts.

Young particularly singled out the defence bar, saying: "We weren't hearing from the Defence Bar," Young said. "The Defence Bar were planning an ambush in a different way and that's fine...But you know, we weren't getting phone calls saying we want a review of Charles Smith; it didn't happen."

Earlier this week Dr Young testified that he found Smith's attitude at several meetings held to discuss his future in 2002, because, "at this point in time, he was -- had a reason for everything and the reason was always someone else not doing
something, or letting -- letting him down, or not."

With respect, in this Blogster's humble view, by blaming unnamed crown attorneys, police officers, and defence lawyers, for his failure to remove Dr. Smith from performing medico-legal autopsies at a much earlier time, Dr, Young was playing the same diversion game.

Indeed, the Inquiry heard evidence that as Dr. Smith was the subject of national television and print attention and a detailed complaint submitted to him - which he acknowledges that he read (except for passages which, without reading, he felt he should not have read) - back in 1991;

The alarm bells don't get much louder then that.

The reality is that if the Chief Coroner's office had not given Dr. Smith "carte blanche" over two decades - it would not have been necessary for his successor, Dr. Barry McLellan to order the independent review of forty-one of those cases with its disturbing results.

To accuse defence lawyers of creating an ambush - presumably by attempting to defend clients like Bill Mullins-Johnson, Brenda Waudby and Sharon's mother who were wrongfully accused of murder because of Dr. Smith's opinions - is a particularly low blow.

There was no financial gain to be had in defending Dr. Smith's victims who were mainly poor and marginalized - and had nowhere near the resources of the state that was prosecuting him with their infallible expert witness

To blame prosecutors who were desperately waiting for Dr. Smith's reports - because no one in the Chief Coroner's office was ensuring that he deliver them on time - is equally unfair.

Police officers can rightfully be disturbed by Dr. Young's allegation that they were somehow at fault; They relied on the Chief Coroner's Office to supervise Dr. Smith and were terribly let down.

The evidence called at the Inquiry to date convinces me that the Office of the Chief Coroner was so much in the grip of Dr. Smith that it took a hands off attitude in spite of a litany of long overdue reports that had to be subpoenaed, failure to respond to phone calls from police officers and prosecutors, loss of key forensic exhibits and worrisome court decisions.

Is that what you would call "appropriate objectivity"?

Harold Levy;;

Monday, December 3, 2007

Goudge Inquiry: Young Tells Inquiry He Persuaded Ontario Government To Fund Dr. Charles Smith's Libel Suit Against CBC: Abuse Of Office?



I am extremely troubled by former Chief Coroner Dr. James Young's evidence that he persuaded the Ontario government to financially back a private libel suit brought by Dr. Charles Smith against the CBC in connection with a hard-hitting documentary produced by the "Fifth Estate;"

The groundbreaking documentary, telecast on Nov. 10. 1999 was highly critical of Dr. Smith's competence and credibility. (See earlier posting: Smith and the media; Part four; Fifth Estate probe triggers plea to Premier Mike Harris for inquiry into Smith cases; Deaf ears;)

It included interviews with the mother of a deceased child, Deputy Chief Coroner Dr. James Cairns, who was very supportive of Dr. Smith, and several medical experts who were critical of Smith's work in the cases examined by the program,

I am reprinting Dr. Young's testimony to the Inquiry earlier this week in full, so that the readers of this Blog can make their own judgment of the propriety of Dr. Young's actions;.

(Inquiry lawyer): MR. MARK SANDLER: All right. Now, we see, again, skipping ahead in time a little bit, that -- that Dr. Smith has filed a statement of claim against the CBC. And it's dated February of 2000, which would be not that long after the -- the matter was originally televised. And did you become aware of the existence of the statement of claim against The Fifth Estate?

DR. JAMES YOUNG: I became aware that he was going to issue a statement of claim.

MR. MARK SANDLER: And how did you become aware of that?

DR. JAMES YOUNG: I believe he asked me whether or not the Ministry would support -- would help with the legal fees if -- if he proceeded.

MR. MARK SANDLER: And did you get back to him about that?


MR. MARK SANDLER: And what did you tell him?

DR. JAMES YOUNG: I -- I passed on a message from our legal branch, who had discussed it within the Ministry and said they would to a very limited extent, that they would pay a small amount towards the -- the case.

MR. MARK SANDLER: And did you support the -- the determination that at least to some extent he would be financially assisted, if he chose to go that route, by the Ministry?

DR. JAMES YOUNG: I believe I probably did. I remember bringing it forward for consideration, which was first and foremost what I agreed to do. I -- I probably said to a -- some limited extent we should -- we should back him on this.

MR. MARK SANDLER: Well, the question that arises is that to a limited extent you indicated to the Ministry that we should back him on this without having heard the telecast, without have read its contents, and without being in any position to
independently form an opinion as to whether there was any merit at all to his statement of claim?

DR. JAMES YOUNG: No. First of all, I've said I don't know if I said that, whether I backed him. I may have or I may not have, but I think I did -- probably did. The other issues that were going on at the time, within government, were that we were having discussions both with coroners and pathologists about issues around liability, workplace safety, providing lawyers for other hearings, et cetera.
And -- and it was becoming a very difficult matter when -- as -- as the number of things were increasing, they were saying, You know, if we're going to do the work for government, we expect support from government in return. So I remember that being an issue at the time, and I remember supporting it for that reason, that
I felt that it was important that we back the -- the people that are doing the work for us. If we're not prepared to back them, then we're not going to have them working for us. It was that simple."

Here is what troubles this Blogster.

First, the Government of Ontario;

If in fact the Ontario government did secretly throw money into Dr. Smith's private lawsuit - even one cent - there has been an extremely grave violation of the constitutionally protected right of Canadians to Freedom of Expression.

Lawsuits against the media are very dangerous because they can have a chilling effect - and can discourage the media from reporting fearlessly while the matter is awaiting trial.

Any government that secretly uses public dollars to support a private lawsuit - especially one launched in connection with a documentary that was critical of the Chief Coroner's office which is under the aegis of Ministry of the Solicitor General - crosses a very dangerous line.

Dr. Smith kept his lawsuit hanging over the CBC for years before ultimately dropping it) - just as he had sued MacLeans for a brilliant expose on Smith by reporter Jane O'Hara only to drop it before trial; (See previous posting: Smith and the Media: Part Five; Taking on Charles Smith; A second example of fearless journalism);

At the moment, we have no proof that the government did, in fact, help fund the lawsuit - just Dr. Young's testimony under oath at the Inquiry.

But Dr. Young's testimony puts a very strong onus on the McGuinty government to clear the air and tell us whether this happened or not.

If it did occur, questions abound;

Who in the Ministry's legal department approved and facilitated the funding?

What elected officials or civil servants in the Ministry gave their approval?

Have the individuals involved been brought to account?

If not, will they be brought to account?

Has there been a breach of ethical obligations by the politicians and civil servants involved?

Now for Dr. Young.

I am astounded that alarm bells didn't go off in his head when Dr. Smith asked him to persuade the government to help fund his lawsuit against the CBC - that he didn't realize at once that such a course of action could be perceived as an abuse of his office.

In this Blogster's view, Dr. Young's actions were aggravated by the fact that he signed a letter intended for the College of Physicians and Surgeons of Ontario which had been drafted by Dr. Smith's lawyers.

Dr. Young testified that he did not change a single word of this letter in which he defended Dr. Smith on the three complaints that had been filed against him - (and one of these complaints occupied a central role in the CBC documentary that was subject to the libel suit he wanted the Ontario government to help fund).

I, personally, find it very difficult to understand why Dr. Young would have asked the government to help pay for Dr. Smith's lawsuit in light of his sworn evidence that he had not seen the broadcast, he had not read its contents, and he was not in any position to independently ascertain the merit of Dr. Smith's statement of claim.

I will leave it for the readers of this Blog to decide if they accept Dr. Young's explanation that, "If we're (the coroners and pathologists) going to do the work for the government, we expect support from government in return."

I also find it very difficult to understand why Dr. Young just couldn't say "no" to Dr. Smith.

Harold Levy;

Chief Coroner's Office Feared Public Inquiry Would Be Called Back In 2003 Because of Smith's Botched Cases; But Still Kept Him On;

Scrawled notes of a high level meeting held on October 16, 2003, indicate that the Chief Coroner's Office feared that a public inquiry would be called because of the controversy surrounding Dr. Charles Smith.

Former Chief Coroner Dr. James Young called the meeting - at which Smith was present - in the face of unfavourable news stories and mounting attacks on Smith's opinions in the courts.

Young also had to deal with senior officials in his own department who did not want to be associated with fallout over Dr. Smith's views.

The scrawled notes, which appear to have been writ en by a lawyer in the Chief Coroner's Office indicate a concern that Smith had become a "lightning rod" for criticism.

Worse, the notes go on to indicate that the situation had generated to the extent that "even his (Dr. Smith's) name on (a) report causes concerns."

"Fair?" the notes continue. "Probably not but defence smells blood...Possibly battling public inquiry into OCC (Ontario Chief Coroner");

Since Smith had not been allowed to perform medico-legal autopsies since 201, there is a question that cries out to be asked:

Why, in view of his personal disgrace and the threat he was posing to the Chief Coroner's Office, was Dr. Smith permitted to hold on to his title and membership on two important pediatric death review committees until he tendered his resignation by letter dated July 1, 2004, about nine months later.

Other questions abound?

Why wasn't he summarily stripped of his title and committee memberships when he refused to respond to Dr. Young's request at that meeting to resign on the basis that a voluntary resignation would be better for everyone?

(Could it have been because of a fear that this would attract even more unfavourable attention to the Chief Coroner's Office?)

Could Dr. Smith possibly have had some bargaining chip that he was holding over the Chief Coroner's Office? Hmmmmm.

Wasn't any thought being given to the reality that by allowing the status quo to continue the Chief Coroner's Office was allowing Smith to continue referring to his title and committee memberships on his CV as if nothing had happened?

And how fair was that to hospitals in other jurisdictions in North America, or even Europe, that might be thinking of hiring that renowned icon Dr. Charles Randal Smith to help deal with shortages of forensic pediatric pathologists.


Yes, Fair. Fair for Dr. Charles Smith.

Inexplicably fair.

EPILOGUE: On Sept. 11, 2005, Hospital For Sick Children spokesperson Helen Simeon informed the Toronto Star that Dr. Smith had tendered his resignation in July and left the Hospital shortly thereafter for reasons that could not be released.

Dr. Smith had left the Hospital several weeks after Former Chief Coroner, Dr. Barry McLellan had announced his extraordinary review into the death's of more than forty children.

Several months later, it was reported that a friend from medical school had helped Dr. Smith obtain a one-year contract to work as a pathologist in the pathology department of a Saskatoon Hospital doing non-forensic work.

The Saskatoon Health Region Board fired Smith about three months later - after the story of his hiring erupted in the news - saying that it was unaware that he had been subject to the three complaints resulting in a caution in Ontario when it hired him.

(An administrative review panel later ruled that the Health Board had acted improperly but did not reinstate Dr. Smith's temporary license to practice medicine in Saskatchewan.)

He was later rebuked by the Saskatchewan College for failing to disclose his problems in Ontario when he applied for temporary membership so he could take on the City Hospital job.

Harold Levy;;

Sunday, December 2, 2007

Goudge Inquiry: Jenna's Case: Why Didn't Dr. Smith Practice What He Preached?

Dr. Charles Randal Smith clearly knew how to conduct a forensic sexual assault examination.

In fact he was the expert.

He was the pathologist the Toronto Police Service invited to assist on a day long seminar entitled "Parents Who Kill," which was presented by the Homicide Squad at a downtown Toronto hotel, on June 12, 1995.

This is the same Dr. Charles Randal Smith who was found by the College of Physicians and Surgeons of Ontario to have conducted an inadequate sexual assault investigation.

More particularly, he had failed to conduct a standard rape kit swab to determine if Baby Jenna had been sexually molested.

He had also kept in his personal possession - and failed to hand over to the police or submit for forensic examination - a tiny, curly, dark male pubic hair found in the area of two and a half year-old Jenna's vulva.

((See previous blogs: Another shocking revelation: Former chief coroner sent letter drafted by Smith's lawyers to College; Smith said he kept key exhibit at his home, former chief coroner says);

Dr. Smith certainly did not practice what he preached.

Here is what he taught the police officers about the the importance of taking swabs.

"Sperm motility: Collect suspicious material from the vaginal vault or the posterior fornix using a cotton swab or glass dropper. Place on slide, cover slip, and examine at high dry power for motile sperm."

Here is what he taught the police about the the importance of seizing foreign hairs found in a young girl's sexual organs;

"Foreign hairs must be carefully sought, and some scalp hairs should be taken from the victim for comparison."

All of which makes me wonder what reason Dr. Smith could possibly have had for failing to perform the routine tests he had taught others to perform in order to detect whether there has been a sexual assault - and for hiding the suspicious hair he had found on Jenna from the authorities.

He certainly couldn't plead ignorance.

Harold Levy;;

Goudge Inquiry: Smith Said He Kept Key Exhibit in Waudby Case At His Home, Former Chief Coroner says;



The Goudge Inquiry has learned that that Dr. Charles Smith Said He had kept a key piece of forensic evidence from an autopsy at his home.

The evidence is the tiny, dark, curly, male pubic hair found in Baby Jenna's vulva area, which Smith has admitted retaining in his personal possession following the autopsy. (See previous blog: Another shocking revelation: Former Chief Coroner sent letter drafted by Smith's lawyers to College;)

The Inquiry received this evidence from former Chief Coroner Dr. James Young, who testified:

"Well, he (Deputy Chief Coroner James Cairns) told me about
the existence of the hair that -- that Dr. Smith had told
him that the hair had been taken;

that the hair had been offered to a police officer, and that the police officer
had refused to take it as an exhibit;

that he had held onto the hair;

that at one (1) point he had even gone to court with it in his pocket, and no one had asked him anything about it;

He'd taken it home, and for some reason he was choosing to disclose the existence of the hair at this point in time."

The questions raised by this revelation are significant;

First, in terms of continuity, how could one ever be sure that the exhibit in a marked envelope Smith ultimately handed over to the police was the same one he had kept in a pocket when testifying in court, and then kept (in whatever conditions) at his home?

Second: If Dr. Smith kept that exhibit in his home, what other exhibits from autopsies might he also have kept in his home? (The Inquiry did receive an anonymous letter indicating that Dr. Smith maintained a museum in his home in which he kept forensic exhibits - including a collection of earrings seized at autopsies.)

Third: Why would he have kept the exhibit at his home instead of submitting it for forensic analysis;

Fourth: How could the Hospital for Sick Children have failed to maintain a system for tracking forensic exhibits so they could quickly be traced when needed for used in court?. (The Hospital finally put such a system in place - but only after the Smith revelations);

Harold Levy;;