Sunday, April 6, 2008

Part One: Critical Comment: Father Raymond J. De Souza; Dr. Smith And The Price Of Justice;



The National Post has provided insightful gavel to gavel reporting of the Goudge Inquiry by reporter Tom Blackwell.

In its issue today (Monday March 31, 2008) the Post publishes a powerful commentary by columnist Father Raymond J. De Souza under the heading: "Dr. Smith And The Price Of Justice;"

Father De Souza has an interesting background.

A Queen’s University Alumnus (B.A. Honours in Economics and Masters in Public Administration), he also holds a Masters degree in Economics and Politics from the University of Cambridge, England.

Subsequently, he began studies for the priesthood, earned a Licence in Sacred Theology (S.T.L.‘03) from the Santa Croce University in Rome, and was ordained to the priesthood for the Archdiocese of Kingston in July, 2002.

"Today, Justice Stephen Goudge will begin hearing final oral arguments at the Smith inquiry. Last year an outside review found that Dr. Charles Smith, a senior pathologist in the Ontario coroner's office, had provided incorrect findings that led to miscarriages of justice in some 20 homicide cases," the column begins.

"The proceedings of that inquiry ought to shake the confidence of all Canadians in what we still call the "justice" system," it continues.

"The Smith cases were not a matter of nailing some serial killer for the wrong crime -- the cases were about parents and caregivers being wrongly convicted of molesting and killing their own children; it would be hard to imagine a more painful miscarriage of justice.

The Smith inquiry was called to determine how the justice system--police, prosecutors, courts --could have failed in such an utterly grotesque way.

Last Friday, Smith's lawyers argued that while he was grievously at fault in some cases, his errors were shared by others who should also share responsibility. On the last point he is assuredly correct.

It would no doubt suit the police and prosecutors involved to hang the whole matter around Smith's neck, but the inquiry should not permit that.

Given that the people involved were in fact innocent, there must have been exculpatory evidence to that effect, or at least the absence of other corroborating evidence sufficient to raise a reasonable doubt.

Yet in case after case the police and prosecutors did not find such evidence, or worse, ignored what they did find in favour of a theory that they had already committed themselves too.

A single forensic pathologist, even one as spectacularly dangerous to justice as Dr. Smith, does not put people in jail all by himself.

The most alarming claim made in Smith's submission was that he thought that as an expert witness, his job was to support the prosecution's case.

Perhaps in his years of testimony he neglected to pay attention to his sworn oath to tell the truth.

Dr. Smith draws back the curtain on how injustices are manufactured -- the police, coroner's office, prosecutors and expert consultants are all thought to be a part of team, working together to achieve a conviction.

Achieving a conviction is not always the same thing as serving justice, or seeking after the truth.

Remember the Klemko controversy last summer?

Edmonton constable Joe Klemko is an internationally renowned blood-spatter expert who has been disciplined multiple times by the Edmonton Police Services (EPS) for insubordination.

His offence?

He has testified for defendants as an outside consultant in various cases.

The position of the EPS is that police officers work with prosecutors and therefore should not cast doubt on evidence gathered.

The EPS' move to discipline Klemko for telling the truth -- when it helped defendants -- ran into serious public opposition.

The EPS had told Klemko that he would be denied his 20-year service medal as punishment; a public outcry forced them to back down and grudgingly award the medal last month.

So we have coroners who think they should say what the Crown prosecutors want.

Cops who are told not to contradict what the Crowns want. Crowns who want convictions.

The whole machinery of the state at its most coercive -- cheered on by a vengeful public and tough-on-crime politicians -- is brought to bear on the defendant.

Few can resist the de facto presumption of guilt, and the willingness of some to twist, conceal or outright manufacture evidence to serve that presumption.

God help the falsely accused; their innocence is no match for a corrupt system.

Now that the Smith inquiry has revealed the total fiasco of pediatric autopsies in Ontario, remedies will not come cheap.

It seems reasonable that, at the very least, the state ought to provide all such defendants with full access to independent pathologists and consultants.

Indeed, if the crown is to use expert testimony, similar resources should be made available to the defence.

It will be terribly costly -- but less costly than imprisoning the innocent.

Less costly than accusing innocent parents of murdering their own children.

Less costly than the miscarriages of justice wrought by the easy collusion of experts, police and prosecutors.

Less costly than having a justice system unworthy of the name.