Monday, April 21, 2008

The Affected Families Group's Response To Dr. Smith's Closing Submissions On The "Sharon" and "Jenna" Cases: An Enlightening Document;

In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;

The reply to Smith's defence of his conduct in these cases is made by lawyers Peter Wardle and Julie Kirkpatrick in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."

"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the response begins in the context of Sharon's case.


"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;

"For the reasons set out below, it is submitted that these arguments are fallacious.

(i) limited experience

As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!

The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.

That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.

(ii) dog attack theory never seriously raised;

First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.

Rather, it was based on the pathology of the wounds on Sharon’s body, such as:

0: the distribution of the injuries;

0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;

0: the photograph of markings highly suspicious of a dog’s arch;

the scalp wound, which he described as being “torn or ripped away”;

0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.

Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.

Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.

Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.

When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.

For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.

In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.

As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.

The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.

Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.

(iii) others reached a similar opinion

Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.

However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:

Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.

Dr. Bechard is not a pathologist, and he did not view the body.

Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.

In any event, Dr. Wood now accepts that his opinion was wrong.

Dr. Chiasson did not view the body.

He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.

Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.

Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Louise Reynolds by referring to the circumstantial evidence suggesting she was guilty of a murder.

Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.


In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17

He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.

In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.

He also says that he did not testify that the injuries all occurred at once.

Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.

This reasoning, however, is superficial.

The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.

As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”

As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.

Indeed, as Dr. Milroy put it:

“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”

The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.

Dr. Smith’s suggestion to the contrary is illogical and unreasonable.

The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.

Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:

MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?

MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.

MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?


MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?

MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.

MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?

MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.

Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.

This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."