Part Six: Case Studies; Systemic Factors; The "Athena" Case; Presented By The Affected Families Group;

"FINALLY, THE USE MADE BY THE POLICE OF THE POST-MORTEM REPORT IN THEIR INVESTIGATION – IT WAS NOT RELEASED TO THE FAMILY UNTIL THE POLICE HAD WIRETAPPED THEIR HOTEL ROOM, SO AS TO GAUGE THEIR REACTION – AGAIN RAISES ISSUES ABOUT THE ACTIVE INVOLVEMENT OF THE CHIEF CORONERS' OFFICE IN ONGOING POLICE INVESTIGATIONS."

CASE STUDY; THE ATHENA CASE; AFFECTED FAMILIES GROUP;

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Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.

These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;

The sixth case has been identified by the Inquiry as the "Athena" Case;

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By way of brief background:

Athena's parents were freed of murder charges by the Ontario Court of Appeal on April 14, 2005 on grounds of excessive delay;

The appeal court acknowledged that, "The prospect of freeing someone on a charge of first-degree murder without a trial on the merits is almost unthinkable," the court conceded.

While the court decision lifted a heavy load from the shoulders of the couple, they were deprived of the opportunity of having their innocence demonstrated in the courtroom, in a prosecution that was based on the opinion of Dr. Charles Randal Smith.

The couple had protested their innocence from the outset;

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"The primary systemic issues raised by the Athena case obviously relate to the Chief Coroner's Office's control over the timing and delivery of post-mortem reports and consultation opinions," the case study begins;

"As found by the trial judge, and affirmed by the Court of Appeal, Dr. Smith’s delays in this case were unexplained, and had a significant impact on the time it took for the case to reach trial, with highly prejudicial effects for the family," it continues;

"There are however several other issues raised by the case which deserve the Commissioner’s attention.

As outlined in the trial judge’s reasons, there were a series of misunderstandings which led to Athena’s body being cremated at a time when the family were still considering whether to obtain a second opinion.

It is also important to note that there was evidence before Justice Trafford that the family, when inquiring about a second (defence) autopsy, was told by the Regional Coroner Dr. Bennett that the cost would be prohibitive.

Finally, the use made by the police of the post-mortem report in their investigation – it was not released to the family until the police had wiretapped their hotel room, so as to gauge their reaction – again raises issues about the active involvement of the Chief Coroners' Office in ongoing police investigations."

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By way of background to Athena's case, here is an earlier Blog which I initially pulled because of concerns over the Inquiry's publish ban - which now has been modified accordingly:

"HE (SMITH) WAS THE SUBJECT OF MANY COMPLAINTS BY DOCTORS, POLICE OFFICERS, AND CROWN ATTORNEYS ABOUT DELAYS ON THE PART OF DR. SMITH IN THE PREPARATION OF POST-MORTEM, OR CONSULTATIVE REPORTS..."

"THE DELAY BY DR. SMITH IN THE PREPARATION OF A COMPREHENSIVE POST-MORTEM REPORT IS SHOCKING, NOT ONLY IN ITS DEPARTURE FROM THE STANDARDS EXPECTED OF HIM AND THE ONTARIO CHIEF CORONER'S OFFICE IN THE CIRCUMSTANCES OF THE CASE BUT BECAUSE OF HIS KNOWLEDGE OF THE IMPORTANCE OF HIS WORK TO THE CASE AND HIS KNOWLEDGE OF THE DESIRE OF THE POLICE, THE CROWN ATTORNEY AND THE DEFENDANTS TO HAVE A COPY OF THE REPORT AS SOON AS WAS REASONABLY POSSIBLE."

SUPERIOR COURT JUSTICE BRIAN TRAFFORD:

Dr. Charles Smith has come under fire for erroneous opinions that sent innocent persons to prison for life.

He has also come under attack for allegedly misplacing key forensic evidence that could show that people charged as a result of his opinions are innocent.

There is a third area in which the once venerated pediatric forensic pathologist has been criticized: An apparent problem with providing police and prosecutors with post-mortem reports, and other important documents in a timely fashion.

Allegations of a propensity for delay are found in Athena's case where Superior Court Justice Brian Trafford stayed charges of first-degree murder charges against a couple largely because of unreasonable delay.

Dr. Charles Smith had taken almost twelve month-s to file what turned out to be a one-page report.

As Trafford observed in his 63-page decision,"He (Smith) was the subject of "many complaints by doctors, police officers, and Crown Attorneys about delays on the part of Dr. Smith in the preparation of post mortem, or consultative reports..."

Trafford also notes that the officer in charge of the case distrusted Smith so intensely that he refused to lay criminal charges against the couple without written confirmation of the timing of the injuries to baby Athena.

Trafford details the Herculean efforts to obtain obtain the written addendum from Smith. (The homicide officers had asked Smith to prepare the document around July 20, 1999 - and Smith did not make it available until April 4, 2000);

An aggravated prosecutor had told a judge conducting a pre-trial conference held on March 6, 2000, "We have been trying ever since then (November, 1999) to get the amended (post-mortem) report. We still do not have it. We've written letters. I've called. The police have called numerous times."

"Understandably (defence) counsel is anxious to get this on and so is the Crown," the Prosecutor continued. "And I am considering taking the unusual step, Your Honour, of subpoenaing the doctor to come to Court to get some explanation as to when we're going to get this other report...

Time to pause for a moment;

A prosecutor on a first-degree murder trial is contemplating the serving of a subpoena on an important Crown witness who is none other than the renowned Dr. Charles Smith, head of the Pediatric Forensic Pathology Unit at the Hospital For Sick Children, in order to obtain a report which is crucial to the police investigation.

Something is very wrong with that picture.

Meanwhile the police where frantically attempting to obtain the document from Smith, as in a letter dated Feb. 1, 2000, signed By Detective Sergeant Matt Crone which notes that, "Proceedings against Athena's father have been delayed by my efforts to obtain this information from you."

"(Prosecutor) Rita Zaied has been placed in the difficult position of being unable to properly disclose this information and thus set a date for the preliminary hearing," Crone continued. "Despite my many phone calls and your assurances, I have not yet received the additional information requested.

"I fully appreciate how full your schedule is, but the situation is now critical and I must formally request, in the strongest terms, that the additional information I have requested be forwarded to me as soon as possible."

(Prosecutor Zaied made a similar written request to Smith in a letter dated March 13, 2000);

The letters clearly came to no avail as Detective Sergeant Crone was forced to serve Dr. Smith with a subpoena compelling production of the written addendum about two weeks later.

Smith's failure to provide police and prosecutors with crucial documents was clearly not unique.

Trafford tells us that:

0: On April 3, 2000, Detective Crone served Dr. Smith with a subpoena compelling production of the written memorandum;

0: In August 1997, Dr. Smith was compelled by a subpoena to attend Court with his report in another case;

0: In September 1998, Dr. Smith, in yet another murder case, was the subject of an application by the defence for an order requiring production of his post-mortem reports;

(This blog would appreciate receiving identification of the two other cases from its loyal readers);

Trafford also tells us that the addendum which had taken Smith more than nine months to produce turned out to be one page long and to contain nothing more than a repetition of the oral opinion he had provided the previous July;

In Athena's case, Trafford found that Smith's unreasonable delay in producing the addendum to the post-mortem report, "caused a significant delay in the completion of the investigation and the decision to proceed against both defendants on a charge of murder."

(Trafford ruled that Smith caused further delay by failing to submit forensic exhibits to the Centre for Forensic Science for a period of approximately six weeks);

But one must also consider the cruel consequences Smith's failure to do his job in a prompt manner had on Athena's mother who found out in the summer of 1998 that she was pregnant, and her husband.

Athena's mother was caught in a terrible dilemma:

She hoped that once the post-mortem report was issued by Smith both she and her husband would be cleared.

But she had been advised by a social worker that she ought not continue the pregnancy because if she had the baby it would likely be taken from he on an application for Crown wardship.

The couple opted for an abortion;

As Trafford puts it:

"The decision to have the abortion was a very difficult one that was difficult to make"

"She and Angela's father considered all their options," he continued.

"The options included having the child and resisting the efforts of the CAS(Children's Aid Society) to obtain custody, consenting to custody by any one of a number of immediate relatives in Toronto or elsewhere and having the child and putting it up for adoption.

The other option, abortion, was the alternative selected by them.

Neither the Toronto Police Services or the Crown Attorneys Office were involved in the decision.

As a result of the termination of the pregnancy, Angela's mother, suffered from extreme feelings of depression, anger, frustration and loss.

She obtained medical treatment for this condition.

If the post-mortem report of Dr. Smith had been received and proved the death of Athena was a sudden unexplained death, she would not have terminated the pregnancy."

Harold Levy...hlevy15@gmail.com;