As will be seen, he presented himself at the Inquiry as a pathologist who decided to do some forensic work that no one else wanted to do, taught himself a few things about forensic science, and did his best given his lack of training.
But in his C.V., which he prepared for use in Court, Dr. Smith portrays himself as a well-qualified forensic scientist, who has great understanding of science, as well as the justice system, and who is widely published and steeped in research.
What is going on here?
Here is my theory:
Dr. Smith's testimony is geared towards the barrage of lawsuits that are piling up against him with a potential liability of millions of dollars to the medical insurer.
There are currently at least three lawsuits before the court - those launched by Brenda Waudby, Sharon's mother, and Tyrell's mother.
A fourth lawsuit will ultimately be launched by William Mullins-Johnson, who spent more than twelve years in penitentiary as a result of Smith's opinion which turned a natural death into first-degree murder.
Others are bound to follow suit
Now that the Ontario Court of Appeal has rejected that he cannot be sued because of a common law principle of absolute witness immunity, Dr. Smith's lawyers - and his insurers - must be thinking about the standard of care which he was expected to adhere to during the performance of his duties.
If he can successfully argue that the standard of care is minimal - because it was not uncommon for pathologists such as himself to dabble in forensic work at the time - the ultimate to the insurers will be minimal.
(Dr. Smith's oft-repeated refrain that he has committed errors" and "mistakes" - rather than out right negligent acts - also seems to this humble Blogster to be part of a damage control operation in contemplation of civil suits).
It might be useful to examine Dr. Smith's testimony at the Inquiry, while bearing this theory in mind.
First, his responses to questions posed by Jane Langford, his lawyer;
MS. JANE LANGFORD:
Dr. Smith, over the course of your ten (10) or so years of medical training, did you ever have occasion to work with a certified forensic pathologist?
DR. CHARLES SMITH: No.
MS. JANE LANGFORD: And in that time, Dr. Smith, did you receive any training or participate in any discussions about the role of an expert witness in Court proceedings?
DR. CHARLES SMITH: No...
MS. JANE LANGFORD: You joined the staff of the Hospital for Sick Children as a full-time pathologist in 1981?
DR. CHARLES SMITH: I did.
MS. JANE LANGFORD: And, so Dr. Smith, am I right that by the time you joined the staff of the Hospital for Sick Children as a full-time pathologist, you had had virtually no exposure to criminally suspicious death investigations?
DR. CHARLES SMITH: That's correct.
MS. JANE LANGFORD: And you had virtually no exposure to certified forensic pathologists?
DR. CHARLES SMITH: I had no exposure to certified forensic pathologists.
MS. JANE LANGFORD: Do you recall this being a concern of yours at the time?
DR. CHARLES SMITH: No.
MS. JANE LANGFORD: Why not?
DR. CHARLES SMITH: I was -- I was following the practice pattern of -- of the more senior colleagues in my department, and, so my -- my experience was the same as -- as theirs. It was the same as -- as I understood, of the other pediatric pathologists in Ontario who were doing coroner's cases. I had no knowledge or understanding that there was any value added in forensic pathology. That thought didn't cross my mind, and certainly no one suggested it did.
MS. JANE LANGFORD: Did you know any forensically-trained pathologists practising in a pediatric setting at that time?
DR. CHARLES SMITH: No...
MS. JANE LANGFORD: And as your career progressed, Dr. Smith, and you became more focussed on pediatric forensic pathology, why did you not pursue any more specific forensic training?
DR. CHARLES
SMITH: It never occurred to me that it was of value.
MS. JANE LANGFORD: Did anyone suggest to you that you ought to pursue more specific forensic training?
DR. CHARLES SMITH: No.
MS. JANE LANGFORD: And sitting here today, Dr. Smith, with the benefit of hindsight, how would you describe your forensic pathology education and training?
DR. CHARLES SMITH: It was self-taught. It was minimal. And retrospectively, I realize it was woefully inadequate...
Dr. Smith; My experience in the 1970s and 1980s, which Dr. Pollanen wouldn't have had, would indicate to me that that statement was equally correct then. There was seemingly no recognition that, within pediatric forensic pathology, there was a significant input or value from the -- or to consider cases from the perspective of forensic pathology. The emphasis was on the pediatric side; the pediatric diseases and understanding pediatric disorders that could cause sudden death, for instance.
MS. JANE LANGFORD: And prior to the publication of the results of the review conducted by the Office of the Chief Coroner, Dr. Smith, did you recognize that there were significant gaps in your basic forensic pathology knowledge?
DR. CHARLES SMITH: Well, I knew there were gaps, but those gaps I didn't believe were of concern. For instance, I knew that I didn't know gunshot wounds, but gunshot wounds are not a problem in pediatric pathology here. I knew that I didn't know the toxicology of drug abuse, but that, again, is not a topic of -- of relevance, and so while I understood that there were areas I didn't know, I didn't understand that there were areas of ignorance that -- that bore on the pediatric forensic work.
-----------------------------------------------------------------------------
Now take a look at his response to a question posed by Commission Counsel Linda Rothstein:
MS. LINDA ROTHSTEIN:
The thing that you've fastened on mostly, as I hear it, sir, is the lack of expertise and formal training; the extraordinary gaps in your knowledge -- as you just put it to your counsel -- in forensic pathology; that would be one (1) of the main reasons you would see that explains what went wrong here, is that fair?
DR. CHARLES SMITH: I believe -- I believe that's a very significant factor, yes.
--------------------------------------------------------------------------------
Finally, it may be useful to consider Dr. Smith's response to a question posed by lawyer Peter Wardle as to why he did not tell court that there was "controversy" among pathologists over the subject matter in question - and that an expert must fully present the judge or jury with the fact that there is "another side."
DR. CHARLES SMITH: But, excuse me, Mr. Wardle, the -- the start of your question was: Did I not appreciate that? I think it -- did I not appreciate that it
1 was my role to bring the controversy forward? And the -- and so I don't want to walk away from this, because I think this may be helpful, not only in understanding this case, but maybe more globally. Was -- in fact, no I did not understand that role. No one ever -- had ever told me. It had not crossed my mind at all. I admit that that was -- that that expresses a position of ignorance about -- about my role in the -- in the judicial system, but the reality is no, I had no idea, and no one every told me. None of my colleagues told me. I'm not aware that my colleagues als(o) -- did that either. As I -- as we discussed testimony after trials were over and
1tried to sort of help understand from each other what went on, none of us, to the best of my recollection, ever went into court with papers that represented both sides of the controversy. So I plead ignorance on it. I realize it wasn't helpful, but -- but that is -- I was doing what I thought was to be done.
Let's pause now and contrast Dr. Smith's professed "ignorance" of the most basic his testimony in court - where his testimony could send an innocent parent or caregiver to jail for life as the murderer of their child.
At William Mullins-Johnson's trial for the first-degree murder of his 4-year-old niece Valin, for example, Dr. Smith was asked about the forensic work he did at the Hospital For Sick Children;
"Okay. At the Hospital there are three (3) of us. I do the majority of the work, and if I'm not there someone has to stand in my place, so I do that," he replied.
"The Pediatric Forensic Pathology Unit is unique. We're not aware, or the Chief Coroner isn't aware that there's an existence anywhere in North America, such a unit. So because of that I probably do a little bit more of this
kind of work than anyone else in the country."
We can see how he has placed himself at the top level of forensic pathology in North America with this testimony.
As the case against Mullins-Johnson rested entirely on the scientific evidence, faced with this evidence - so contrary to the way in which he portrayed himself to the Goudge Inquiry - Mullins-Johnson was doomed.
(In Kenneth's case, Smith told the jury that, "The vast majority of my work is in
pediatric forensic pathology)."
It is also useful to compare Smith's professed ignorance of all things forensic to the way in which other participants in the criminal justice system saw him.
For example, the prosecutor involved in an Ohio murder case where Dr. Smith testified, latter praised Smith in a letter he sent him, saying, "I along with my colleagues, found your work in this case to be truly outstanding. I can well imagine that pediatric forensic pathology must rank among the most unpleasant fields of medicine in which to practice, but society is indeed fortunate that a man of your calibre has chosen to do so."
Also consider a senior officer's description of Dr. Smith's delivery of his evidence to the court in the Ohio case;
"He was great in front of the jury," recalled (Detective John) Nethers, who was stunned to learn yesterday that Smith is now the subject of an inquiry,"...when Dr. Smith was on the stand, everybody in the courtroom seemed interested in what he was saying and was paying attention."
I will leave it to our readers to contrast Dr. Smith's self-deprecating testimony to the inquiry with his description of himself in his C.V. which was prepared for use in Court and his evidence in court as to his lofty qualifications;
To this Blogster, his testimony wreaks of damage control and self interest.
It is exactly the kind of testimony one would expect from a man who would sue the Saskatoon Regional Health Board for wrongful dismissal for emotional stress - so that the Board's resources can be spent on him - rather than on the patients it serves.
A final note: That Board, under Chair person Darlene Eberle - did its job to protect the public from Dr. Charles Randall Smith (for which it got sued!) and deserves praise for its efforts - unlike the Ontario institutions such as the Hospital For Sick Children and the Chief Coroner's Office, which left the public at risk.
Harold Levy...hlevy15@gmail.com;
