Thursday, April 17, 2008

Part Three: Case Studies; Systemic Factors; The "Jenna" Case; Filed Early For Friday April 18;




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 third case has been identified by the Inquiry as the "Jenna" case;

There is an aspect of this case study - based on evidence called at the Goudge Inquiry - which is profoundly disturbing.

It is the allegation by the lawyers for the Affected Families Group that Brenda Waudby was required to plead guilty to another offence she was not guilty of - an allegation that she had physically abused Jenna historically - in order to have the second degree murder charge of which she was also utterly innocent withdrawn.

Worse, the lawyers charge that Waudby's guilty plea to the abuse charge - which would have disastrous impact on her family with the local Children's Aid Society - was based on yet another erroneous opinion of Dr. Charles Smith: that he had observed "old rib injuries."

That Brenda Waudby had to plead to a child-abuse related offence she knew she had not committed in order to secure the withdrawal of a murder charge that both Crown and Defence Experts agreed she she could not have committed is horrifying.

It is injustice piled upon injustice;

Read on:


By way of brief background:

Jenna was born in Peterborough, Ontario in April of 1995. She died on January the 22nd, 1997 at the age of twenty-one (21) months, also in Peterborough.

Her mother was charged with second degree murder on September the 18th of 1997.

The criminal proceeding concluded on June the 15th of 1999 when the charge was withdrawn.

As reflected in the overview report, the Children's Aid Society apprehended Jenna's mother's older child on the day that Jenna died and placed her in temporary foster care.

And the -- the history of -- of the Child Protection Proceedings that followed is set out in paragraph 3 in more detail.

That child was ordered returned to Ms. Waudby's care on May the 2nd, 1997, and remained in her care until the day of Jenna's mother's arrest at --

She was later reapprehended as reflected therein.

Children's Aid also apprehended a second child born after Jenna's death and placed him with his father.

After the charge was withdrawn against Jenna's mother, the child was ordered returned to her mother's care.

On December the 28th of 2005, J.D., the youth who was babysitting Jenna the night she died was charged with second degree murder, and in December of the following year pleaded guilty to manslaughter and was sentenced as a youth to twenty-two (22) months incarceration followed by eleven (11) months of community


"The key systemic issues raised by this case involve confirmation bias, the sharing and recording of information during the death investigation process, misleading testimony, “corridor consultations”, Crown disclosure, plea bargaining, and the impact on child protection proceedings," this case study begins;

"Dr. Smith’s autopsy notes indicate that he received information before the autopsy, likely from the Investigating Coroner, suggesting that Jenna’s parents used cocaine, that a babysitter had charge of Jenna the evening of her death, that Brenda had gone out for coffee and been away 6-7 hours, and that she might be a prostitute," it continues;

"Five years later, one of the things which Dr. Smith remembered clearly about the case was that the “real issue” was that the mother had gone out for an extended period of time the night of Jenna’s death.

He told Dr. Cohl during the CPSO investigation: “the real issue is that the mother left home 8-9 hrs, prior to the child’s death...she was to come back within the hour, but came back 8 or 9 hours later.”

In short, completely collateral information, prejudicial to Ms. Waudby, was provided to Dr. Smith at the outset, thought important enough by him to be written down, and then remembered years later as the most important issue in the case.

The evidence regarding timing of the injuries suggests this collateral information influenced Dr. Smith’s analysis of the case.

From the initial notes of Cst. Kirkland, it appears that Dr. Smith initially concluded that the fatal injuries occurred within a few hours prior to death.

Dr. Milroy told the Inquiry that this opinion “was a perfectly reasonable opinion to give to police” and that he, in effect, had “gotten it right” at this stage.

Sgt. Charmley and Crown Attorney Brian Gilkinson both agreed that had this remained the case, there would have been no basis to charge Ms. Waudby.

However, almost immediately that time interval began to widen.

Officer Lemay’s notes indicate that he was told by the investigating coroner after the autopsy that the injuries occurred “prior to 1700 on January 21, 1997”.

Several days later, the police were told that “the intrabdominal trauma was caused within a twenty-four hour period”.

At the preliminary Inquiry, Dr. Smith’s opinion was that the timing of injuries, if they all occurred at the same time, was “consistent with” 24 to 48 hours before death.

Dr. Milroy stated that “there’s nothing in the pathology that accounts for why the time was expanded” to “include consideration of the mother when she should clearly have been excluded.”

Subsequently, all experts who have reviewed this case have confirmed that Jenna died within six hours of the fatal injuries having been inflicted.

Indeed, in evidence before this Inquiry, Crown Attorney Brian Gilkinson confirmed that during the April 29, 1999 meeting, without any debate Dr. Smith agreed with Dr. Ein’s opinion.

Once again, the evidence strongly suggests that confirmation bias played a role in Dr. Smith’s initial approach to the case.

When confronted with clear medical evidence contradicting his opinion, he immediately retreated.

Furthermore, none of Dr. Smith’s opinions on timing are formally documented.

The Report of Post-Mortem Examination, completed by Dr. Smith eight months after Jenna’s death, does not deal directly with his opinion on timing of injuries, nor does it outline his analysis of that issue.

The evidence regarding the hair found on Jenna’s body also makes it clear that the issue is not simply filling in “gaps” in written documentation, it is also one of the transfer of this documentation to those who need to see it – whether it be the pathologist, the Crown, defence counsel, or those involved in child protection proceedings.

The evidence is clear that the hair was seen by several individuals at the Peterborough Civic Hospital upon Jenna’s arrival, including the investigating coroner, Dr. Thompson.

It is unclear whether Dr. Smith had access to all of the hospital records at the time of performing the autopsy.

What is clear is that Dr. Thompson did not include any information about the hair or the possibility of sexual assault on his Coroner’s Warrant.

No one appears to have ensured that Dr. Smith had all the relevant records and that he was aware of the concerns of hospital staff regarding the possibility of sexual assault.

In many cases before this Inquiry, Dr. Smith has referred to “corridor consultations” that support his own findings.

The Jenna case offers a poignant illustration of why all such consultations must be recorded in detail by the individual providing the consultation.

Dr. Milroy testified that the photographs show a reddening area on the vagina that raised suspicion of an injury.

In his view, an appropriate sexual assault investigation was not done.

There were no swabs and samples taken from the vaginal area.

Histology of the area was not completed.

A dark curly hair, although seized by Dr. Smith, was not specifically photographed, documented, or provided to police.

Dr. Smith advised Dr. Thompson on the day of Jenna’s autopsy that there was “no evidence of sexual assault”.

He stated to police that Dr. Dirk uyer was present and they together agreed that there was no evidence of abuse.

Dr. Dirk Huyer did not prepare a written report and has repeatedly indicated that he has no specific recollection of attending the autopsy, although he does remember discussing the case with the police.

Dr. Smith’s post-mortem examination report makes no mention of a sexual assault examination having been completed, or of the involvement of Dr. Huyer.

Dr. Smith’s autopsy notes, belatedly produced in 2004, indeed make reference to the presence of Dr. Huyer at the autopsy.

Following the April 23, 1999 meeting, it is apparent that Crown Attorney Gilkinson was not completely satisfied with the opinion of Dr. Ein, notwithstanding the fact that Dr. Smith had ultimately agreed with the six hour time frame.

Mr. Gilkinson and investigating officers then met with Dr. Porter and sought an opinion from her.

According to Mr. Gilkinson, he felt that OCCO should have an opportunity to respond to the issues raised by Dr. Ein.

As outlined in CAS notes, Mr. Gilkinson continued to look for an “angle to implicate mom”237 because in his view “mom is definitely a child abuser, but whether she is a child killer needs to be determined.”

Unfortunately for Ms. Waudby, these events took place at a time when Justine had already been in foster care for almost 24 months,239 and Ms. Waudby was due to give birth to her youngest child.

There is evidence before this Inquiry that the Kawartha Haliburton CAS repeatedly asked the investigating officer and the Crown Attorney for information regarding the status of the criminal proceedings, and requested access to the Crown Brief.

At no point was the KHCAS advised of the fact that as of April 23rd, 1999, Dr. Smith had agreed with the opinion of Dr. Ein that the fatal injuries were inflicted within 6 hours of death.

In fact, there is evidence to suggest that the KHCAS were specifically told by the investigating officer that the Crown Brief was “not much different” than in 1997.

Dr. Smith became involved in the child protection proceedings as well, offering an opinion on May 6th,1999 to the worker that ‘I guess I’ll be doing his autopsy too” [referring to M.W.].

Again this gratuitous and inflammatory comment was provided to the KHCAS despite the fact that Dr. Smith had agreed with the conclusions of Dr. Ein on April 23rd, 1999 with respect to timing of injuries, and was not a participant in the CAS decision-making process.

The result was that relevant and necessary information was not before the Honourable Mme. Justice K.E. Johnston on May 7th, 1999 when M.W. was removed from his mother’s care.

Dr. Porter released a report to Crown Attorney Gilkinson on May 26th, 1999 which, again, confirmed that the timing of the injuries to Jenna were less than six hours from her death.

This report was not disclosed by the Crown to the defence, or to the CAS.

Laird Meneley, counsel for Ms. Waudby in the CAS proceedings, made several attempts to obtain this report from both Dr. Porter and Mr. Gilkinson without success.

It is our respectful submission that the Crown Attorney has a positive duty, not only to report child abuse to the CAS,247 but to immediately report the finding that there is an absence of evidence of same.

There should never be reliance on defence counsel to simply “pass the information along”.

There can be no doubt that the above disclosure issues had a serious impact on the child protection proceedings involving Justine and M.W.:

The Crown Attorney did not withdraw the charge against Brenda until June 15th, 1999.

The Crown Attorney insisted that no withdrawal of the criminal charges would be made unless Brenda plead guilty to an offence under section 79(2)(a)….

Brenda’s daughter spent more than one and a half years in foster care while Brenda’s criminal charges were outstanding.

Brenda has never spent a single overnight with her infant son.

Brenda, Brenda’s children and her extended family have been completely devastated as a result of her being arrested for a crime she did not commit.

Brenda Waudby’s name remains on the Child Abuse Registry.

The potential for members of a death investigation team to approach a case using a common set of shared (and therefore unchallenged) assumptions is a fact which runs through the cases before this Inquiry, and is something that is important to guard against.

As noted earlier, the Crown appears to have been of the view that Ms. Waudby was a “child abuser”.

In his evidence before this Inquiry, Mr. Gilkinson very candidly agreed that this was based on the pathological findings of Dr. Smith regarding old rib injuries.

The same conclusions appear to have been relied upon, both by the Crown and by the defence, when Ms. Waudby entered a plea of guilty to a charge under section 79(2)(a) of the Child and Family Services Act;

As of that time Dr. Smith’s opinion regarding the timing of the rib injuries had not, in fact, been challenged.

As a consequence of the CFSA conviction, Ms. Waudby was placed on probation requiring her to take direction from her Probation Officer in conjuction with the KHCAS “for the care and management of her children”.

The fact of the plea of guilty to child abuse was used in subsequent child protection proceedings involving Justine and M.W.

The pathological evidence before this Inquiry regarding the age of Jenna’s rib injuries is important to note:

Dr. Smith noted broken ribs at the time of autopsy;

The x-rays which accompanied the body from the Peterborough Civic Hospital were unremarkable;

The x-ray report of Dr. Paul Babyn showed “questionable posterior rib fractures”;

The CT scan reported by Dr. Paul Babyn showed “findings in keeping with acute, non-accidental injury given lack of defined healing, multiplicity of fractures and fracture location;

In his interview with the CPSO, Dr. Smith stated that there was “no good histology of rib healing (in radiological information) and further stated: “I don’t know when the rib injuries occurred – 6 hrs., 24 hrs. or more”;

In his 2005 review, Dr. Pollanen stated: “none of the fractures show definite evidence of a healing reaction…. the rib fractures occurred by a chest compression mechanism in the perimortem period Historical details about how the compressive force was applied are lacking”;
The only reference to 7-10 day old rib injuries is the police officer’s notes at the third case conference on July 7th, 1997, when Dr. Smith apparently reported that the “only thing new was old rib injuries had been discovered.”

When asked specifically to consider this issue in retrospect, Mr. Gilkinson very candidly stated the following:

"I agree that that's the import of what his opinion is. That wasn't the opinion we had or we relied on at the time the plea was entered.... so I'm sitting here wondering whether or not we took a plea -- well, we took a plea on the basis of rib head fractures that were considered old at the time…you just do the best you can to make the decisions that appear to be appropriate with the information you have at the time."