Saturday, April 5, 2008

Part Ten: Closing Submissions; Affected Families: Crossing The Line: From Coroner's Investigator To Police Agent;

The current focus is 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 the section in which the Group alleges that Dr. Smith - and others involved in death investigations for the Chief Coroner's Office - crossed the line from impartial death investigator to active participant in a police investigation;

"With the assumption of an advocacy role, there is a danger that medical professionals will “cross the line” into participating in the police investigation," this section begins;

"Dr. Smith admitted that in the early years he considered himself to be supporting the Crown and that in later years he understood the concept of impartiality but was poor in the execution," it continues;

"But it was not just Dr. Smith who fell into this line of thinking.

In the Tyrell case, the Court considered the admissibility of statements made by Tyrell’s caregiver to Dr. Mian and Elaine McLaughlin of the SCAN team.

The trial judge clearly found that they were “persons in authority” and was scathing in his remarks on this point:

"I would reject the statement because of the dramatically unsatisfactory nature of the SCAN (Suspected Child Abuse and Neglect) team evidence, which makes it impossible to know with any degree of certainty what [Tyrell’s caregiver] was told about the purpose of the interview and equally impossible to know what was in fact the real purpose of the interview and also the dramatic and startling contradiction between Dr. Mian and Ms. MacLachlan about the so-called protocol averred by Ms. MacLachlan and also because of the apparent lack of any protocol of system or set of standard procedures or organizational guidelines to ensure that the role of the SCAN team is clear and fairly brought home, not only to interviewees, but also that the very members of the SCAN team itself have some consistent understanding of what its true purpose and function is."

Dr. Dirk Huyer candidly advised the Commission that when reflecting on this possibility of assuming an inappropriate investigatory role in a case, he recognized that “theoretically people would be more willing to tell me that because I’m a physician and I’m in a helping environment.”

In the Tiffani case, police investigators arranged a joint interview of the parents with the investigating coroner present, meeting to “discuss the method of the interview” in advance.

According to the notes of the investigating officer, the discussion was as follows:
Coroner will ask medical background of mother in form used for medical history…will mention interview is taped and get consent….

If at any time interview shows criminality, Coroner will stop… Officer will [issue?] caution and continue interview. Same procedure to follow with husband.

Reference to Dr. Smith’s stature was used as an investigative tool by the police during the interrogation of Nicholas’ mother:

you have to understand that there people, they’re professional who, the pathologist, the head pathologist for Ontario – I mean, this is a man who’s not making idle speculation. This is a man who knows and who has empowered that knowledge to us that his death was not natural. That’s the reality of it.

The evidence suggests that the Ontario Chief Coroner's Office saw itself as “a resource to the system”, meaning the prosecution side of the criminal justice system.

Nowhere is this more evident that in the Barrie case referred to in the course of this Inquiry.

The Affidavit of Staff Sergeant Mark Holden, sworn January 28, 2008, raises significant concerns as set out below:

There were two case conferences with police prior to Dr. Smith meeting with the mother;

"There was communication between Inspector McNeill and Dr. Smith about the fact the house was wire-tapped;
There was a meeting between Inspector McNeill and Dr. Smith immediately before the meeting; and
Dr. Smith immediately reported back to Inspector McNeill, describing the mother’s demeanour as follows: “it was like talking to her about a load of gravel”.

A February 7, 2008 affidavit sworn by Dr. Cairns confirms that he was aware that Dr. Smith’s meeting with the mother was going to be wiretapped and that he didn’t see a problem with it at the time although he does now)."