Part One: Smith Takes The Witness Box; Fact or Fantasy; The Doctor And The Judge;

"AND THAT WAS THE FIRST OCCASION IN WHICH HE (JUDGE PATRICK DUNN) TOLD ME THAT (THE BABYSITTER) WAS GUILTY AS SIN…"

DR. CHARLES SMITH TO REPORTER JANE O’HARA IN TAPED INTERVIEW

One of the most fascinating documents to emerge during the Goudge inquiry is an affidavit from a judge denying statements by Dr. Charles Smith to a reporter.

To say the least, it is highly unusual for a judge to swear an affidavit for consideration in a public inquiry.

This is the first time that I have ever seen it happen.

The Judge is Patrick Dunn, the provincial court judge who acquitted a ten 12-year-old babysitter in Timmins, Ontario, with a lengthy judgment, released on July 25, 1991, which was harshly critical of the evidence given by Dr. Smith and the Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) team.

The reporter is Jane O'Hara, who obtained Smith's controversial comments during a lengthy interview in preparation of a major article on Smith for MacLean's magazine.

Smith's controversial quotes to O'Hara are particularly significant this morning as as one of the dominant themes that has emerged during the Inquiry is his credibility.

I am referring particularly to matters such as his credibility in his work (the honesty and completeness of his forensic reports), his testimony under in oath in court, his defence of his conduct to the College of Physicians and Surgeons of Ontario, and his comments to reporters.

But let's focus for now on the information he gave O'Hara, as reflected in a transcript of the interview which was filed at the inquiry:

O'Hara: Okay now somewhere along the line when I was doing my research somebody mentioned to me that during the trial that you had said and I'm not sure you had said it but that the judge apparently told you during the trial that (the babysitter) was guilty);

Smith: He told me that on several occasions;

O'Hara: Was that in open court?

Smith: No, I'll tell when it first occurred and this is all off the record.

O'Hara: Sure;

Smith: I testified, I flew up there, being told I would be on the stand for a few hours. And I can't remember the day of the week but I ended up there on a Friday or something and then I was flying back to Toronto for the weekend. And at that time both Canadian and Air Canada or Air Ontario flew up to Timmins. Ummm at lunch time, just as we were going to break Judge Dunn asked me how I was returning to Toronto and I indicated to him unbeknown st to me, he was aware that the Canadian flight I was on was cancelled and he made arrangements for me to have my ticket moved to the other airline and then he made arrangements for me to sit with him on the airplane. And I walked onto the airplane and was stunned when I found myself sitting next to this man, who immediately began discussing this case with me.

O'Hara: At this point you're flying back down to Toronto?

Smith: Yeah, I'm in the middle of my testimony. And I felt extremely uncomfortable discussing the case with him and he said it's fine, because I will base my evidence on the evidence in Court. He said I can be hearer of the fact and trier of the fact and this is fine. And that was the first occasion in which he told me that (the babysitter) was guilty as sin. And he made arrangements when I flew back Sunday afternoon to go back and testify some more, I found myself once again sitting beside him on the airplane which I found extremely, extremely unusual. So that was yeah, the conversation came from there. I didn't know how to handle the man or the situation. It was absolutely bizarre. As soon as I got to Timmins on the Sunday night and the crown attorney, not the one who was prosecuting the case, but the senior crown a guy named Dave Thomas met me at the airport. I said this thing has happened to me I don't know how to interpret it, and what does it mean. And I told Thomas this and I said do I continue, what do we do here? And he said there's been a number of problems in this case and that he would simply take it under advisement and I was simply to go on and testify.

O'Hara: Wow, I think that's dynamite. Were you actually blown away when you read the judge's 75-page judgment.

Smith: I never bothered reading the judgment;..."


During the course of the interview Smith told O'Hara that he had a second discussion about the case with Smith at a family law conference in Toronto about a year after the decision was released.

And now for the judge's affidavit:

The alleged discussion on the airplane:

"During the course of the trial, I flew back and forth between Toronto and Timmins. On one occasion, I was on the same flight from Timmins to Toronto as Dr. Charles Smith. Dr. Smith and I exchanged pleasantries on the flight; Although I do not have a specific recollection of my conversation with Dr. Smith, I am certain that I did not discuss the merits of the case or the evidence with Dr. Smith..."

Dunn's alleged making of Dr. Smith's travel arrangements:

"I have no recollection of making any arrangements with regards to Dr. Smith's airline tickets and I do not believe I would have made such arrangements;"

Dunn's sworn comments on a statement Smith made to the College of Physicians and Surgeons of Ontario dated May 4, 1992 - filed in evidence at the Inquiry - in which Smith says that during the trial Dunn told him he believed (the babysitter) was guilty, and that he agreed with evidence that given by himself and other members of the Hospital for Sick Children Suspected Child Abuse and Neglect (SCAN) team, which Dunn had rejected at the trial:

"At no point during the course of the trial did I discuss Dr. Smith's evidence with him or indicate to Dr. Smith that I believed (the babysitter) to be guilty. I also did not indicate to Dr. Smith that I believed the opinions provided by Drs. Barker, Driver and Smith, as alleged in Dr. Smith's letter to the (College)";

Judge Dunn also made short shrift of Smith's claim that they had discussed the Timmins case at a family law conference, saying: "...I have no recollection of discussing the (Timmins) case with Dr. Smith at the family law conference or at any other time. I would not have discussed the case with Dr. Smith. I would let the written judgment speak for itself."

To this Bloggist, Judge Dunn's affidavit goes to the heart of Dr. Smith's credibility and could raise questions about his (Smith's) mental state depending on who you believe - a provincial court judge in a sworn affidavit or Dr. Charles Randal Smith.

If the judge was to be believed - that he never, ever, discussed the Timmins case with Smith - (let alone told him that the 12-year old babysitter was "guilty as sin"0 -the implication would be that Smith has constructed an elaborate fantasy over two chance meetings (on the airplane and at the family law conference). This would be a detailed fantasy containing very specific conversations, and very specific acts, such as the alleged arrangement of airline tickets and seating accommodation on the plane.

If the doctor is to be believed, Judge Dunn has broken some of the serious rules and traditions that govern judges: They do not talk to witnesses during the course of trials; They do not discuss the merits of trials after they are completed (let alone with witnesses like Smith. This would be utterly improper and could land the judge before a hearing of the Judicial Counsel; (All of which explains why Dunn would have taken the extraordinary step of filing an affidavit with the Goudge Inquiry);

The implications of this credibility issue are extremely serious to both the judge and to Dr. Smith.

Why would Judge Dunn break the cardinal rules? I can't imagine any reason why any judge would put his or her job on the line, especially a judge who had presented such a careful, detailed analysis of all of the scientific evidence - prosecution and defence - in his decision?

Why would Dr. Smith offer a false account to the reporter and the College? We know that the Hospital for Children SCAN team went into "damage control" after Dunn's decision was released. We also know that the Dunn's decision was viewed as a set-back for doctors involved in the ideological movement towards criminalizing as "baby-shaking syndrome) cases which previously had been categorized as "Sudden Infant Death Syndrome (SIDS); Indeed, Dr. Smith described the influential role he was playing in the Shaken Baby Syndrome movement, in an email to O'Hara, dated May, 5, 2001, which reads, in part:

"Some of my cases have triggered research activities into forensic pathology. For instance, you are familiar with the (babysitter) case from Timmins. I was frustrated by the judge's apparent inability to understand the complex medical issues, and so began looking for a way to lay to rest some of the questions which the case posed. As a result we published the largest series of shaken baby syndrome (SBS) in the literature, while we were identifying an autopsy finding which may be unique to this form of injury. (One of the controversies at trial was whether there was such a thing as SBS, let alone whether shaking could kill in the absence of blood impact injury; Our research answers those questions.) Several years ago I was invited to present my special investigation in child abuse to the provincial association of family court judges. Judge Dunn who presided over the (Timmins) case was in the audience and he approached me later to discuss the case. We agreed that if the case had gone to trial in the late 1990's, as opposed to the early 1990's, as opposed to the early 1990's, the uncertainties of that trial would have been obviated. (Dunn denied that this alleged conversation occurred in his affidavit - as well as swearing under oath that he never discussed the Timmins case with Smith.H.L.)"

In the context of the Inquiry, if, Judge Dunn - who enjoys an impeccable professional and personal reputation among lawyers and other judges in his area - were to be believed, then all of Dr. Smith's actions and testimony would have to be viewed through the prism that he has difficulty distinguishing fantasy from truth.

For many years however, Dr. Smith's testimony was largely accepted as gospel by judges, crown attorneys, police officers, and even some defence lawyers.

But he won't walk up to the witness stand this morning as the renowned Dr. Charles Randal Smith whose word was gold throughout the world of forensic pathology, backed up by the Hospital For Sick Children and the Chief Coroner's Office.

He will have to stare out at the many individuals and families who have been effected by his erroneous opinions - many of themwill be present - and he will be required to testify under oath, as to his actions.

The tables have certainly turned.

Next posting: Smith Takes the Witness Stand: Fact or Fantasy; Part Two;

Harold Levy...hlevy15@gmail.com;