Part Two: Will Dr. Charles Smith Ever Be Brought To Account? Wide-Ranging Views;

A story by Globe and Mail reporter Kirk Makin, published in the Globe and Mail sets out wide-ranging views on the question as to whether Dr. Smith will ever be held accountable for his actions - or failures to act.

The story ran on March 6, 2008, under the caption: "Will Charles Smith be held accountable? It remains to be seen if the Ontario pathologist whose flawed testimony led to convictions of innocent people will pay a price."

"A common thread runs through every wrongful conviction case that has convulsed the Canadian justice system: Authority figures are not held accountable," the story begins.

"The question of accountability looms large again, as the Goudge commission has just concluded its inquiry into massive failings by Charles Smith and the Ontario Office of the Chief Coroner. In the aftermath of an inquiry that exposed a startling degree of dysfunction in the coroner's system, will Dr. Smith - or anyone else - pay a price?", the story continues.

"Mr. Justice Stephen Goudge's hands will be tied when it comes to making findings of criminal or civil liability in his report, scheduled for release in late spring or summer.

Testimony and documents filed at the inquiry are off limits as far as criminal charges or professional discipline are concerned. They may be employed as an investigative tool by outside agencies, but not used as evidence.

Still, that does not stop Judge Goudge from pointing fingers.

"I think there will be a lot of fact-finding which anybody with half a brain will read as wrongdoing - without Justice Goudge actually saying that it is," said Cindy Wasser, a criminal lawyer who spent years battling for a public inquiry into the Smith affair.

Since many of Dr. Smith's mistakes involved changing or embellishing autopsy reports to conform with what he claims was his changing analysis of a case, they may fall short of providing the necessary proof.

In some cases, such as William Mullins-Johnson's conviction for the murder of his niece, Valin, Dr. Smith can also point to defence experts whose concessions bolstered his conclusions.

However, a handful of specific incidents remain that could potentially justify a criminal charge, including one in a case where a Peterborough, Ont., mother was charged with murdering her daughter, Jenna. For years after he conducted Jenna's autopsy, Dr. Smith had possession of a pubic hair that had been found on the victim's body and could have been of significant evidentiary value. In this case, a criminal charge would be justified if it could be shown that Dr. Smith intentionally suppressed the evidence.

"It is very hard to make these people accountable in our legal framework," said James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted. "So many years have passed in these cases that it makes the criminal burden of proof very hard to meet.

"There have been prosecutions in the U.K. and the United States, but in all of our wrongful conviction cases in Canada, there has never been satisfactory accountability," said Mr. Lockyer, who represents eight parents fighting for exoneration in cases where Dr. Smith was a Crown expert.

Mr. Lockyer said police and prosecutors whose actions led to wrongful convictions simply do not end up being criminally charged, fired from their jobs or disciplined. Erring judges suffer no censure. Experts who provide flawed testimony walk away, their reputations unmarred, to testify another day.

Indeed, Dr. Smith is a walking illustration of the sort of problem that may arise when an expert is not made accountable in a country as vast as Canada. Even after his errors began to surface in Ontario, Dr. Smith continued to provide expert testimony or consultations as far away as Yukon, and he later relocated to Saskatchewan and was able to briefly resume his career.

University of Toronto law professor Michael Code said the key to finding intentional wrongdoing lies in looking at what an individual believed at the time.

Stressing that his comments were general, Prof. Code said: "Anybody who actually believes that what they are doing is proper and appropriate has a complete defence to the offence of obstructing justice."

Ms. Wasser said that intent plays an equally vital role in breach-of-trust prosecutions. "It's a question of how a trial judge defines the facts," she said. "It's also a question of whether he is a 'public officer' and commits a 'fraud.' Fraud is so hard to prove. It is an offence that is really meant for your MP or city health inspector who takes a bribe.

"Did [Dr. Smith] fail in his duties of his job? Yes. But was he in that position where public trust fits? I'm not sure."

If the police were to investigate Dr. Smith over allegations of criminal negligence, they would likely fare no better. The Crown would be required to show that there was a dire consequence of his actions, such as death or bodily harm. Wrongfully convicting the innocent simply would not qualify.

Toronto defence lawyer Stephen Skurka noted that Dr. Smith was careful in his testimony not to leave himself legally vulnerable. "Smith's hollow apology that he was ignorant of his role in the courtroom and that he sincerely believed that he was an advocate for the prosecution represented a mockery of the real truth," Mr. Skurka said.

What if Dr. Smith actually were convicted of an offence?

In the most likely scenario, obstructing justice, he could be sentenced to as much as 10 years in prison; having no criminal record, he would more likely get two or three years. But no less, Ms. Wasser said, "since this was probably one of the most egregious forms of obstructing justice - to be in the position he was in and screw up the way he did."

However, she said a prison sentence would do little to protect the public or give his victims a sense of relief.

"What we really need for Smith is to ensure that he never, ever works in his profession again," she said. "Interpol could notify all international police.

"We have to know that the World Health Organization knows about this and has broadcast it. He could go to some very small country that doesn't know," Ms. Wasser said. "I'm not sure that in a country like Lithuania - where he was until recently still going to lecture - they have a clue."

Stripping Dr. Smith of his licence to practise medicine might go a long way to achieving that end, and the Ontario College of Physicians and Surgeons may do precisely that in order to restore public confidence.

Last spring, then-chief-coroner Barry McLellan referred more than a dozen of Dr. Smith's cases to the college for investigation, and lawyers for the college questioned witnesses aggressively at the Goudge hearings.

"Now they have a lot of material, there is no reason why they shouldn't be conducting a hearing to strip him of his licence," Ms. Wasser said.

While the inquiry's unmasking of Dr. Smith was anticipated, what shocked many observers was its exposure of loose standards and patchwork oversight in the Office of the Chief Coroner.

However, few foresee the possibility of further action being taken against those responsible for running the office during Dr. Smith's reign of error, former chief coroner James Young and deputy chief coroner James Cairns.

Again, the stumbling block in the way of criminal charges would be the need to show a purposeful attempt on their part to thwart justice. "You'd have to show that Young and or Cairns deliberately let Smith run his own show with a view to hurting the public," Ms. Wasser said. "I think the Crown would say that there wouldn't be a reasonable prospect of conviction."

Indeed, Dr. Young excused his lapses by pointing to a heavy workload and a penchant for merely scanning correspondence, documents and court rulings that might have alerted him to trouble on the Smith front.

Dr. Cairns more readily accepted responsibility for his lax supervision, and adopted an apologetic stand.

"Cairns was allowed to retire peacefully, and without anything happening," Ms. Wasser observed. "Should there be a way to strip him of his pension and force him to pay back his salary over the years? Yes.

"It's the same with Young," she said. "Should he be asked to resign from his current post? This was pretty bad in terms of reputation - to have all of this dirt going on in your house, and you claim you don't know anything about it."

One form of accountability for those at the centre of the Smith affair is, however, almost inevitable. A lawsuit being pursued by lawyer Peter Wardle on behalf of parents and caregivers who have been exonerated in Smith-related cases is steadily accumulating more plaintiffs.

The group received a significant boost during the inquiry, when it emerged just how closely Dr. Smith was connected to the Chief Coroner's Office. Mr. Wardle said in an interview that it will now be easy to prove that Dr. Smith was an agent of the coroner, not simply a rogue pathologist who acted on his own.

The difference is critical to the plaintiffs' search for defendants whose "deep pockets" will enable them to pay millions of dollars in damages. With Dr. Smith's medical insurers and the Ontario government on the hook for Dr. Smith's mistakes, the plaintiffs can be sure of collecting any award they receive.

However, Mr. Wardle will have more to prove. Dr. Smith's elaborate admissions of failure at the Goudge inquiry were confined to his general conduct, rather than to specific cases.

Should the cases proceed to trial, it will be necessary for Mr. Wardle to show that there was wrongdoing in individual cases. He must also overcome a general immunity from civil liability that is conferred on expert witnesses. However, a recent Ontario Court of Appeal ruling stated that this barrier is not insurmountable.

Depending on how overtly Judge Goudge decides to prod the province into compensating Dr. Smith's victims, government lawyers may sit down to negotiate a settlement. The impetus will be strong to end the nightmare of bad publicity and not risk playing hardball with victims.

"I think the public understands now that a number of people were treated terribly by the justice system, and that overall responsibility lies with the province," Mr. Wardle said.

He said compensation is particularly important to a handful of families who bankrupted themselves defending their children against criminal charges, and failed to launch legal action in time to avoid strict limitation periods.

All of which leaves one party that may never recover from the damage done to it by the Smith affair, Mr. Skurka said: "The great loser, in the end, will be the criminal justice system in this country.""

Next Posting: Will Dr. Charles Smith ever be brought to account? Part Three: Peter Newman's view. (MacLeans Magazine);

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