The Terribly Unfair Balance Of Power Between Dr. Charles Smith and His Victims;

One of the reasons that Dr. Charles Smith has been able to survive for so many years, in spite of mounting evidence of incompetence - is that he had the assistance of batteries of well-trained lawyers without spending a cent of his own money over the years - other than paying premiums - while his vulnerable victims lacked the financial resources to fight back.

This is evident today from the defence he is able to mount at the Goudge Inquiry where he is represented by three lawyers from the high-power international law firm McCarthy Tetrault, who have thus far looked after his interests for more than sixty days of evidence.

When all is said and done, Dr. Smith will not have to reach into his pocket to pay a cent for this representation which is being provided by the equivalent of a small law firm: All of his legal costs and expenses at the Inquiry will be paid for by the Canadian Medical Protection Association for this representation (The CMPA);

(Please note dear reader that I am not, in any way, begrudging the CMPA for the important support that it provides Doctors. I only wish to explain how Dr.Smith has been able to survive for so long in the face of mounting evidence of his incompetence and the harm he was causing to innocent people);

The CMPA describes itself on itself on its Web-site as "a mutual defence organization" -and "not an insurance company."

"The CMPA's defence philosophy holds professional integrity as first and foremost," the organization explains. "We will vigorously defend a member as long as there is good expert support to do so. CMPA members are eligible for protection independent of their history or track record."

The CMPA also points out that:

"CMPA members are eligible to receive a broad spectrum of assistance related to medico-legal difficulties arising from their professional work in Canada. In addition to advice, support and guidance from experienced medical officers on everyday practice issues, assistance is offered in:

Civil legal actions alleging malpractice or negligence;

Criminal proceedings arising from medical care;

Complaints and disciplinary proceedings related to a licensing body;

Human rights complaints arising from medical care;

Coroners' or other fatality inquiries;

Inquiries about doctors' work or conduct in hospital;

Provincial or territorial billing agency inquiries;

"This broad scope of assistance allows members to mitigate and manage risk which in turn improves the care and services physicians offer their patients," the organization says.

Looking at this list, it is apparent that Dr. Smith has been able to battle the College of Physicians and Surgeons, and mount defences in the growing number of civil cases accumulating against him with the assistance of lawyers appointed by the CMPA to represent him.

Moreover, Dr. Smith will not have to reach into his pocket to provide a cent of any judgment meted against him in the civil courts - or any monetary settlement that the CMPA determines should be accepted.

Nor is it likely that Dr. Smith will ever have to take responsibility for the cost of his defence, because: "There is no limit on the cost of legal help a member is eligible to receive. Individual claims do not increase future fees..."

Now let's take a look at McCarthy Tetrault, Dr. Smith's defenders.

Another word of caution: I am in no way criticising this phenomenal firm or its extremely capable lawyers. (I articled for McCarthy and McCarthy - its predecessor firm - many years ago.)

I am only pointing out the disproportionate resources available between Dr. Smith and his victims, who would probably have gone unassisted if it were not for the existence of highly committed lawyers willing to take legal aid at pitiful amounts per day;

Here is a description of the services that McCarthy Tetrault can provide professionals such as Dr. Smith, as set out in the company's Web-site:

"Allegations of insufficient diligence, breach of professional standards, negligence or worse are escalating in today’s ever more demanding consumer environment.

As a professional, you cannot remain complacent. Your integrity, reputation and livelihood hinge on the swift and effective resolution of any and all allegations against you.

No organization, institution or individual is immune.

Top-ranked architects, dentists, directors and officers of companies, engineers, financial advisers, lawyers, media personnel, physicians, psychologists, real estate agents and other professionals can be the target of such allegations.

Frequently, these allegations entail civil proceedings, securities commission hearings, insolvency-related proceedings, disciplinary charges and criminal allegations. What’s more, the amounts awarded by judgment are on the rise.

When you’re under threat, you need advocates who will protect your reputation and professional integrity to the fullest. McCarthy Tétrault has been at the forefront of professional liability for decades, pleading ground-breaking cases before almost every court and administrative body in Canada.

We’ve been instrumental in evolving case law and the regulatory framework.

Respected professionals choose McCarthy Tétrault because:

We have depth and expertise.

We respond to the most complex allegations and handle multiple proceedings swiftly and competently.

We work seamlessly with our colleagues in related areas such as insurance litigation, labour law, bankruptcy and restructuring, and human rights to address all your issues.

We are fast and efficient.

We focus on providing optimal results through advice, alternative dispute resolution, arbitration, mediation, negotiation or litigation.

We have the premier litigation practice in Canada.

As the nation's pre-eminent litigation firm for over 150 years, we have leading lawyers in every region across the country.

We understand your profession in depth.

We advise the governing bodies of several professions, including our own, on their submissions to legislative bodies regarding proposed changes to the regulatory framework in which they work.

We tailor our approach to your situation.

As professionals ourselves, we understand and address the full impact that confronting legal problems can have on your reputation and your ability to carry on in the public or private sector.

You have a duty of care to seek the best counsel available: McCarthy Tétrault."

Unfortunately, people like Brenda Waudby, William Mullins-Johnson and other victims of Dr. Charles Smith could not turn to McCarthy Tetrault and a bottomless defence pot to retain the expert lawyers and battery of international experts necessary to conduct a forensic defence;

And those families who did not qualify for legal aid faced exhaustion of the funds set aside for their retirements or even bankruptcy.

Lawyer John Struthers did not mince words when asked by Commission Counsel Mark Sandler whether he had any recommendations for Commissioner Goudge:

"Well, with the greatest of respect, it wasn't the Coroner's Office that solved this problem, and it wasn't the Crown Attorney's Office that solved this problem, and it certainly wasn't the police or the Hospital for Sick Children," Struthers told the Inquiry.

"It was a bunch of lawyers being paid the Legal Aid rate to challenge Dr. Smith and basically, to point out to a Court of law, in a manner that they accepted, that he was really off the rails," Struthers continued.

"And if you want -- you know, we live in an adversarial system. The theory is that the Crown doesn't seek convictions; that's not been my experience, but that's theoretically the rule, Bushey.

My position would be that if you want to defend people charged with outrageous allegations that have no foundation in fact, in law, or in science, then the way to do that is to have prepared, competent, skilled, and experienced defence lawyers who are willing to take the case is to challenge this kind of evidence, and you're not going to get it at this current rate of pay.

A lot of people take the position that they graduate out of Legal Aid; they don't take Legal Aid cases anymore because the rate of pay is just completely unacceptable.

And if you want somebody with twenty-two 22) years experience to take homicide cases of great difficulty, complexity, and that require a level of expertise in specific areas that are outside of the legal framework, then you're going to have those people paid properly and right now they're not."

It is clear that even if the growing number of law suits being brought against Dr. Smith result in judgments or settlements he will not have to go into his pocket to pay a single cent.

How's that for accountability?

Harold Levy...hlevy15@gmail.com;