Saturday, April 12, 2008

Part Fifteen; Closing Submissions; Affected Families Group: Three Separate Probes In 2001; Whitewash Alleged;





This Blog is currently focusing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on a section in which the group argues that three separate reviews of Dr. Smith's work - considered or implemented in 2001 - turned up nothing which caused the Chief Coroner's Office to question his competence;

"There appear to have been a total of three separate “reviews” of Dr. Smith’s work considered or implemented by the Chief Coroner's Office in 2001," this section began.

"First, there was the external review initially contemplated by Dr. Young and then quietly cancelled," the section continued;

"Dr. Young intended this to be an internal matter.

A public press release announcing a review could fatally damage Dr. Smith’s reputation “and I would never get him back to work”.

The purpose of this review is unclear.

Dr. Smith’s letter of January 25, 2001 sought “an external review” of his post-mortem examinations, presumably to demonstrate that he could return to work.

Dr. Young described this as being “whether or not he would come back and do cases.”

The scope of this review was never determined, according to both Drs. Young and Cairns.

Some of the evidence suggests that it would have looked at specific completed cases for purposes of considering whether he had adequate forensic skills:

0: The handwritten written notes of January 26, 2001 meeting referring to an external review (U.S./England/Australia) and under the heading “Purpose?” the words “is he a good forensic pathologist;”

0: An email from an Australian pathologist regarding possible starting points for a review;

0: A media report and a ministry house book note with respect to Sharon’s case, suggesting that this case would be the subject of an independent external review, and,

0:Dr. Young’s March 30, 2001 letter to James Lockyer describing a “review” with regard to “two specific cases that Dr. Smith was involved in, both of which were abandoned by the Crown”, and which commented on standards for reviewing “experts and their opinions.”

This contemplated external review was quietly cancelled because of the ongoing lawsuits (the Reynolds civil litigation and Dr. Smith’s litigation with Maclean’s Magazine) and the College Of Physicians And Surgeons of Ontario complaints.

According to Dr. Young, once these matters were underway he decided he was not prepared to reinstate Dr. Smith until they were resolved.

He suggested to the Inquiry that he owed Dr. Smith an apology for not informing him of the cancellation of the review.

Ironically, having taken the position for many years that the College did not have jurisdiction over coroners or pathologists, Dr. Young was now prepared to wait for the outcome of College investigations into the three complaints.

The way in which the review was cancelled corroborates that Dr. Young’s primary concern throughout was the Chief Coroner's Office's reputation.

With Dr. Smith off the roster and other processes underway where he would have an opportunity to defend himself, the heat was now off the Chief Coroner's Office and there was no need to take any decision regarding Dr. Smith’s return to work.

The second review was the so-called internal review conducted by the Chief Coroner's Office of approximately 17 ongoing criminal cases where Dr. Smith was a witness.

The cases were identified by Dr. Cairns, with the assistance of the Metropolitan Toronto Police Force.

Although various witnesses described these as cases ongoing before the courts, the list included cases where the criminal prosecution had been concluded, such as Amber and Sharon.

According to Dr. Young, the purpose of this review was to determine whether the cases were being handled correctly and whether there was a need by the Crown for a independent second opinion.

It was prospective, rather than retrospective.

This internal review was the subject of an extensive analysis by Justice Trafford in R v. Kporwodu and Veno.

Dr. Cairns has admitted to this Inquiry that Justice Trafford’s conclusions are accurate.

In addition, he acknowledges that the review was conducted primarily by him; that in cases where the file had previously been the subject of the quality assurance review by Dr. Chiasson, it was not reviewed again; and that the results eventually presented to the Court were misleading, and favourable to Dr. Smith.

One simple example from this review demonstrates how misleading it was.

The Jenna case is listed in the final chart as case 3055/1997.

The chart indicates that the case had been externally reviewed, that the external reviewer agreed with Dr. Smith, and that the case was “under investigation”.

In fact several external reviewers by that time, including Dr. Porter, had disagreed with Dr. Smith’s conclusions, and the charges against the original accused had been withdrawn as a result.

Similar observations can be made about the chart’s conclusions regarding Sharon (internal review agrees with Dr. Smith: yes/no, and external review: no) and Amber (internal review agrees with Dr. Smith: yes, and external review agrees with Dr. Smith: yes).

Justice McMahon thought that the Chief Coroner's Office's internal review dealt with past cases, and “surmised” that it involved Dr. Smith’s competence.

He was surprised to learn during this Inquiry that it was only a paper review, having assumed it would be far more in depth and that one concern would have been potential wrongful convictions.

Aside from the identification of certain cases where a second independent opinion was needed for use by the Crown, the internal review appears to have turned up nothing which caused the Chief Coroner's Office to question Dr. Smith’s competence.

It was, in effect, a whitewash.

A third review was conducted by Dr. Carpenter of Dr. Smith’s work in a limited number of non-criminally suspicious cases, for the sole purpose of determining whether Dr. Smith could resume work on such cases."