Part Two: Case Studies; Systemic Factors; The "Nicholas" Case; Presented By The Affected Families Group;

IT WAS ALSO CLEAR THAT ANY DISCUSSION BY DR. YOUNG OF A COMPLAINTS PROCESS HAD, AT ITS CORE, THE MAINTENANCE OF PROFESSIONAL REPUTATIONS AT ALL COSTS:

…. "WHAT HAPPENS IS THAT PEOPLE GO FROM COMPLAINT MECHANISM TO COMPLAINT MECHANISM TO COMPLAINT MECHANISM. AND WE DEAL LITERALLY THESE DAYS WITH COMPLAINTS IN - INTO THE CORONERS OFFICE, A COMPLAINT TO THE COLLEGE, A COMPLAINT TO THE OMBUDSMAN, A COMPLAINT TO THE MINISTER, A COMPLAINT TO THE PRESS AND IT – IT LITERALLY CAN GO ON FOR EXTENDED PERIODS OF TIME. AND – AT SEVERAL POINTS THERE’S CONSIDERABLE JEOPARDY THAT PEOPLE ARE IN IN TERMS OF THEIR PROFESSION."

THE ABOVE-MENTIONED “COMPLAINT MECHANISMS” WERE ALL OF THE AVENUES THAT MR. GAGNON PURSUED IN HIS QUEST FOR ACCOUNTABILITY AND REDRESS. IRONICALLY, WERE IT NOT FOR THE STRENGTH AND THE TENACITY OF INDIVIDUALS LIKE S.M.’S FATHER, NICHOLAS’ GRANDFATHER, AND JENNA’S MOTHER IN GOING FROM “COMPLAINT MECHANISM TO COMPLAINT MECHANISM TO COMPLAINT MECHANISM”, DR. CHARLES SMITH WOULD HAVE REMAINED FIRMLY ENTRENCHED IN PLACE IN HIS POSITION AS DIRECTOR OF THE OPFPU.
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CASE STUDY; NICHOLAS CASE; SYSTEMIC FACTORS; THE 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 second case has been identified by the Inquiry as the "Nicholas" Case;

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By way of brief background:

Nicholas was born in Sudbury, Ontario on January the 2nd, 1995 and died on November 30th, 1995, also in Sudbury.

He was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local Children's Aid Society initiated proceedings in respect of the mother's second child born in 1998.

The proceedings concluded in March of 1999 when the Children's Aid Society withdrew the protection application.

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"The key systemic issues in the Nicholas case are confirmation bias, noble cause corruption, the role of forensic pathology in child protection proceedings, and lack of an effective and independent complaints process," the case study begins;

"In particular, the Nicholas case provides an excellent example to the Commission of the type of case impacted by Memo #631, and the potential consequences of “thinking dirty” and assuming a non-accidental death “in the absence of evidence to the contrary”, it continues;

"The initial conclusion in the Nicholas case was “Sudden Unexplained Death”.

Upon review by the Regional Coroner in November, 1996, this conclusion was determined to be unsatisfactory and the case was referred to the Pediatric Death Review Committee, chaired by Dr. Cairns.

The case was assigned to Dr. Smith for review,196 the rationale being that if it became necessary to give evidence in court proceedings, the “committee” could not give evidence.

Dr. Smith’s consultation report stated that “in the absence of an alternate explanation, the cause of death of this young boy is attributed to blunt head injury.”

After a meeting held between Dr. Smith, Dr. Cairns, the Regional Coroner, and police investigators, the circumstances of the death were considered to be “highly suspicious” and it was determined that an exhumation would be of assistance.199

Approaching the case from a “think dirty” perspective suggested that the death was non-accidental unless the results of the autopsy proved otherwise.

Dr. Smith’s initial consultation report was based on what Inspector Keetch has called “the five pillars” of the case:

0: cerebral edema;
0: increased head circumference;
0: splitting of the skull sutures;
0: suspected mandibular fracture; and
): scalp injury.200


Following the exhumation of Nicholas it was apparent that most, if not all, of these pillars had collapsed.

There was no mandibular fracture.

Dr. Smith was given information which explained the increased head circumference.

The splitting of the sutures was described as “mild.”

At that point, Dr. Smith’s focus shifted, as he attempted to use what was clearly a post-mortem artefact201 to bolster his opinion.

This is a clear example of what Dr. Pollanen has referred to an additional aspect of confirmation basis – the tendency to refuse to acknowledge contradictory facts which might push the death investigation process toward the correct answer.202

In this case Dr. Smith later was described by Dr. Mary Case, the CPSO Complaints Committee, and Dr. Crane as exaggerating or over-stating the opinions of others in order to lend support to his own erroneous conclusion.

For example, the various statements regarding possible skull and mandibular factures throughout the criminal investigation and the child protection proceedings are as follows:

0: Dr. Babyn [letter to Dr. Cairns, Jan. 13, 1997]:

0: mild diastasis of the coronal and sagittal sutures with an area in the occiput which may be an accessory suture…. There is a region of apparent disruption of the neck of the left mandibular condyle suspicious for an angulated fracture…

0: Dr. Smith [Consulation Report, Jan 24, 1997]:
A preliminary evaluation of the post-mortem radiographs was given by Drs. Paul Babyn and Derek Armstrong … there was a splitting of the skull sutures. A left-sided mandibular fracture was present.

0: Dr. Babyn [findings in Report of Post-Mortem, June 26,1997]:
…latrogenic changes including prior opening of the calvarium are noted, with disruption of the metallit suture evident. No definite fracture of the skull, mandible, ribs or visualized skeleton otherwise seen.

0: Dr. Smith [Notanda – Report of Post-Mortem, June 26, 1997]:
…this second postmortem examination revealed no fracture of bone, although the presence of soft tissue injury could not be excluded. Hemorrhagic discolouration was seen along the skull sutures, in keeping with the initial radiographic observation of split sutures.

0: Dr. Smith [CAS Affidavit, June 29, 1988]:
marked widening of skull sutures” and “changes to the left side of the mandible which could be interpreted as mandibular fracture”;

0: Dr. Smith [CAS Affidavit, June 29, 1998]:

0: widely split skull sutures;

In his evidence, Inspector Keetch stated that he was not aware of the conflicting language used to describe the skull sutures and, further, was not aware of the differences that may exist between them.

It may be argued that child protection proceedings provided the forum which was most ready to accept the erroneous conclusions of Dr. Smith and Dr. Cairns.

Indeed, we have seen that language such as ‘in the absence of evidence to the contrary’ may well be sufficient to secure a child’s removal from a parent’s care.

The child protection proceedings in the Nicholas case were initiated at the termination of the criminal investigation for two reasons: Lianne Thibeault was pregnant, and she was in school with the intention of becoming a teacher.


It is respectfully suggested that Dr. Smith and Dr. Cairns remained adamant that Ms. Thibeault had killed Nicholas and more than willing participants in trying to hold her accountable in any way possible.

As Insp. Keetch indicated, the last meeting regarding the criminal investigation was very emotional, with the Chief of Police visibly upset that she was going to “get away with” it.

It is noteworthy that at the first meeting Dr. Smith attended with the CAS on May 7, 1998, he told them that he was 99% sure that it was a non-accidental death.

The Crown had not been satisfied that “in the absence of an alternate explanation” met the criminal standard;

Dr. Smith was determined to ensure that the same issue did not arise again in the child protection context.

What is of equal concern, for the purposes of this Inquiry, is the participation of Dr. Cairns as Deputy Chief Coroner.

Dr. Cairns swore an Affidavit for these proceedings which stated:

I am aware of the contents of Dr. Smith’s Affidavit. I share the opinions stated in the Affidavit, having had the opportunity to review, consider and discuss the opinions of Dr. Smith.

In his evidence, Dr. Cairns acknowledge that it was inappropriate for him to file an Affidavit in support of Dr. Smith’s opinion when he was clearly not qualified to opine on the pathological findings in the case, and that he knew or ought to have known that in doing so his position as Deputy Chief Coroner would carry significant weight.

The goal of preventing child abuse – a noble cause – appears to have blinded Dr. Cairns to the appropriateness of the means.

Mr. Gagnon’s complaints and their resolution have already been discussed.

However, one aspect should be highlighted here – the attitude of Dr. Young in dealing with complaints of this nature.

Throughout Dr. Young’s evidence before this Inquiry, it was made abundantly clear that he remains dismissive of those “pen pals” like Mr. Gagnon who for years remained engaged in a “never-ending debate” without resolution.

It was also clear that any discussion by Dr. Young of a complaints process had, at its core, the maintenance of professional reputations at all costs:

…. what happens is that people go from complaint mechanism to complaint mechanism to complaint mechanism. And we deal literally these days with complaints in - into the Coroners Office, a complaint to the College, a complaint to the Ombudsman, a complaint to the Minister, a complaint to the press and it – it literally can go on for extended periods of time. And – at several points there’s considerable jeopardy that people are in in terms of their profession.

The above-mentioned “complaint mechanisms” were all of the avenues that Mr. Gagnon pursued in his quest for accountability and redress. Ironically, were it not for the strength and the tenacity of individuals like S.M.’s father, Nicholas’ grandfather, and Jenna’s mother in going from “complaint mechanism to complaint mechanism to complaint mechanism”, Dr. Charles Smith would have remained firmly entrenched in place in his position as Director of the OPFPU."

Harold Levy...hlevy15@gmail.com;