Sunday, February 24, 2008

Can Dr. Smith's Evidence To Inquiry Be Used In A Criminal Prosecution?

Several of our readers have asked me whether the evidence Dr. Smith gave to the Goudge Inquiry could be used against him in a criminal prosecution.

When this question arises I usually point out that the purpose of the Inquiry is not to make findings of civil liability or criminal culpability - but rather to find solutions to a badly broken system of forensic pediatric pathology in Ontario.

But the question is relevant because Dr. Smith asserted the protection of Section 9 of the Public Inquiries Act to a written statement he filed with the Commission as well as to his oral testimony at the outset of his testimony.

Since I have no expertise in this area, I turned to my friend Professor Alan Young, of the Osgoode Hall Law School at York University, for his views on the issue.

Alan is the author of a timeless book entitled "Justice Defiled: Perverts, Potheads, Serial Killers, and Lawyers", published by Key Porter books in 2003;

How can you not be drawn into a book which says in its preface: "I've done my time in the criminal -justice industrial complex, and I should have walked away from this dying beast. But I felt compelled to write this book, and acting on compulsion will have its costs. Exposing the idiocy of lawyers and judges does not bode well for maintaining a successful career in law. Neither law nor religion takes kindly to ridicule. Painting a picture of hypocrisy and stupidity within a sacred institution can only lead to my being shunned as a heretic...So let the heresy begin."

Can anyone think of another "sacred" Canadian profession worthy of Prof. Young's pen?


Back to Prof. Young's views on the scope of the immunity:

"The answer is not always simple but the general rule in Canada is that a witness at an inquiry is protected by use immunity (i.e. the evidence cannot be directly used in another proceeding and derivative use immunity (i.e. any evidence found or derived directly from the testimony)," he explains.

"In Canada we do not give transactional immunity (immunity from all charges - so Smith can still be charged if evidence is collected without reliance upon his testimony) (also it is not always clear if derivative use immunity is required but use immunity would be the bare minimum required to comply with the Charter s7 & 13;)"

Whether there is any basis for charging Dr. Smith criminally, say for perjury or obstructing justice, is, of course, another question.

I will leave that one where it belongs - with the police and the prosecutors;

Harold Levy;;