Part Two: Work Of Other Pathologists Who Conducted Pediatric Autopsies in Ontario Must Also Be Reviewed; Closing Submissions; AIDWYC And M.J. Group;

"THROUGHOUT HIS TENURE, THERE WAS VIRTUALLY NO OVERSIGHT OR PEER REVIEW OF POST MORTEM REPORTS IN THE PROVINCE.

IT IS REASONABLE TO CONCLUDE, THEREFORE, THAT ERRORS ARE LIKELY TO HAVE OCCURRED BY OTHER PATHOLOGISTS DURING DR. SMITH’S TENURE.

A REVIEW MUST THEREFORE BE UNDERTAKEN OF ALL PEDIATRIC AUTOPSIES CONDUCTED IN ONTARIO SINCE 1981 IN CASES THAT RESULTED IN CRIMINAL CONVICTIONS."

CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;

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The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.

For this reason, I am devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:

Today's focus is on a section in which the two parties point out that the Inquiry has raised doubts about the opinions of other pathologists in Ontario who conducted pediatric autopsies over the years - and recommends a review of all pediatric autopsies in the Province of Ontario Since 1981

(This would include, at a minimum, a review of all of Dr. Smith’s work from 1981 to 1991);

"While efforts have already begun to identify pre-1991 cases, that project must continue," this section of the closing submissions begins.

"There have been consistent problems in Dr. Smith’s cases," it continues;

"His forensic pathology was dreadful, his evidence was over-stated and emotive, and his conclusions were wrong.

Dr. Smith’s own evidence - that his education and training in forensic pathology was ‘woefully inadequate’, that he was ‘profoundly ignorant’ of the role of an expert witness in the courts, and that he did not understand the importance of, nor the procedures for, maintaining the continuity of evidence – suggests that those problems undoubtedly plagued his earlier work.

Again, quoting Dr. Smith’s own words, he had “extraordinarily limited… knowledge or expertise” and it was “potentially dangerous” for him to work on some cases.

His testimony in these cases nonetheless betrayed no uncertainty; he himself described it as “defensive or dogmatic or adversarial”.

Dr. Pollanen has said the reviews of Dr. Smith’s pathology opinions established there “is a reasonable basis to believe that problems might exist with Dr. Smith’s cases prior to 1991”.

All cases which relied on pathology opinions rendered by Dr. Smith require review.

Dr. Smith was not, however, working in isolation; he was the Director of the Ontario Pediatric Forensic Pathology Unit for over two decades.

Several forensic pathologists worked under his influence and administration.

He provided countless consultations (many of them undocumented) to pathologists across the province and across the country, and was viewed as an “icon” by pathologists in the field.

Throughout his tenure, there was virtually no oversight or peer review of post mortem reports in the province.

It is reasonable to conclude, therefore, that errors are likely to have occurred by other pathologists during Dr. Smith’s tenure.

A review must therefore be undertaken of all pediatric autopsies conducted in Ontario since 1981 in cases that resulted in criminal convictions.

Dr. Smith was accorded unparalleled respect and deference by his peers.

They were unwilling to challenge him.

For example, in the case of Valin, Dr. James Ferris, a respected forensic pathologist who had been retained by the defence at trial, admitted in a recent report that:

"…there’s no doubt that, at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian… I was concerned, at that time, with the opinions expressed by Dr. Smith in the case and, since that time, I found myself disagreeing with his forensic pathology opinion expressed in several cases."

He continued:

"I’m now aware that his professionalism is being questioned by others, and I was clearly in error to accept, so readily, his opinions in the case.

Finally, his report concluded:

"Having reviewed all the evidence and materials referred to, it’s clear that my opinions were unduly influenced by my instructions from [defence counsel] and my ready acceptance of the opinions of Doctors Zehr, Mian, and Smith.

It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience."

In the case of Baby M, a pathologist consulted by defence counsel who testified at the Inquiry indicated that Dr. Smith was the foremost expert in forensic pathology, and that she would not be prepared to challenge his findings.

If independent pathologists retained by the defence were unwilling to challenge Dr. Smith and allowed their judgment to be clouded by his celebrated status, it is a reasonable inference that physicians working beneath him did too.

A particularly disturbing example of this pattern is the meeting that took place regarding Sharon’s case between Dr. Smith, Dr. Wood, Dr. Cairns, Dr. Chiasson, Mr. Blenkinsop and Dr. Queen, not long after the autopsy.

Each expert at the meeting deferred to Dr. Smith’s contention that the wounds were not caused by dog bites, except for Dr. Queen, who believed they might, indeed, have been caused by a dog.

He did not advance these views forcefully, however, likely because he was a relatively junior member of Dr. Smith’s staff.

Dr. Cairns, the Deputy Chief Coroner and Dr. Smith’s superior at the time, now belatedly admits that he “put undue faith in Dr. Smith”, and that he believed that Dr. Smith was ‘the’ pathologist, an opinion shared by many in his office, the media, the Crown and defence bar, and the judiciary.

It took him “a long time to come to the realization (that there was a problem)… because he had put him on such a pedestal”.

Dr. Smith was widely consulted by other pathologists around the country, and was seen as the ‘go-to guy' in pediatric forensic pathology.

Pathologists were advised to call him for a consultation during the course of an autopsy, which may well have affected their conclusions.

It appears that many of those consultations were unlikely to have been recorded, and therefore identifying only the cases in which Dr. Smith was definitively involved would be impossible.

This inability to trace Dr. Smith’s influence is one of the factors which demands a comprehensive review.

There was no adequate supervision of Dr. Smith during his tenure, or of any other pathologist conducting medicolegal autopsies under the auspices of the Chief Coroner.

Dr. Smith had no proper training in forensic pathology.

Yet, he was the one who reviewed every report that came out of the unit.

In a telling exchange, Maxine Johnson, the Hospital for Sick Children Pathology Unit’s administrative coordinator, described the process:

"Commissioner: There was no practice for the CF12 to be reviewed by another pathologist before it was signed out to the Chief Coroner's Office;

A: Not for Dr. Smith. But the other pathologists had to give theirs to Dr. Smith because he was the Director of the Unit. So the pathologists would, you know, do their case. We’ll give it to Dr. Smith. He would review it, you know, make any suggestions to those pathologists –

Q: Right.

A: - and – but as far as Dr. Smith –

Q: So the practice was it would not be signed out by the case pathologist until the CF12 had been reviewed by Dr. Smith?

A: Most of the times, yes."

Until 1994, there was absolutely no formal review mechanism for post-mortem reports issued by pathologists working on behalf of the Chief Coroner’s Office.

In 1995, Dr. Chiasson instituted a bare-bones review process which consisted of simply ensuring the report itself met a basic standard, and attaching a ‘checkmark form’ - as it came to be known - to each completed report.

There was no review of photographs, slides, or underlying histology.

As Dr. Chiasson acknowledged, a review of this nature would not have identified a flawed analysis involving a misinterpretation of an injury or pathological conclusions from microscopic or histologic findings.

Dr. Chaisson had the sole responsibility for reviewing all 1,500 reports each year, which allowed for no more than a cursory scan of the report.

In cross examination by Mr. Campbell, Dr. Chiasson acknowledged that his review process would not have caught many of Dr. Smith’s mistakes:

Q: Knowing now what you didn’t know then, it would be fair to say that you needed a bit more insight into the factual substratum of the – the autopsies to identify some of the things that we now know were in error. Is that – would you accept that?

A: I would accept that, yes. A lot of the issues revolve – specific questions relating to circumstances of a death that were not information that wasn’t provided in the PM reports, yes.

Dr. Chiasson also acknowledged that his own lack of expertise with pediatric cases may have contributed to his inability to provide effective oversight.

He paid little attention to the reports of pathologists whom he knew and respected. As he candidly explained in his testimony:

“I was reviewing pathologists who I got to know very quickly. And – and a review in that case may have been simply looking at the bottom line, looking at the summary, and thank you very much”.

This admission, while commendable, does not inspire public confidence that no other miscarriages of justice occurred during his tenure.

Dr. Smith’s errors went undetected by the only review process in place, and common sense dictates that the errors of others did as well.

The work of Dr. Brian Johnston, who was, and still is, the Director of the Eastern Ontario Regional Forensic Unit is now the subject of controversy.

For over a decade, alarm bells were ringing regarding his competence and his propensity to reach critical conclusions that were not supported by medical or scientific evidence.

In one particularly shocking example, which parallels some of Dr. Smith’s cases, the natural death of an adult was attributed to strangulation causing an innocent person to be held in custody for some time.

Nevertheless, he was allowed for years to continue conducting the majority of criminally suspicious autopsies at the Eastern Ontario unit simply because there was nobody to take his place.

Dr. Chiasson identified persistent problems with the validity of Dr. Johnston’s conclusions and his administrative capabilities.

He made efforts to engage Dr. Johnson in remedial steps, without success, and his repeated pleas to have him removed as Director were ignored by Dr. Young.

It was not until February, 2007 that Dr. Johnston and the rest of the Ottawa staff were formally notified that they were no longer permitted to do homicide or criminally suspicious cases for the Chief Coroner's Office;

This provides one more reason for a Province-wide review.

As well, the lens of the “think dirty” regime that pervaded the death investigation system after the release of “Memo 631” on April 10, 1995 must have tainted the objectivity of pathologists throughout the Province.

As Dr. Chiasson and others acknowledged, pathologists would have been vulnerable to pressure from the police to make findings consistent with their pre-existing theory of the case.

Recommendations from this Inquiry will help to solve these kinds of problems in the future, but future improvements will not uncover past mistakes.

Several highly qualified and knowledgeable witnesses at the Inquiry supported an examination of other cases.

Dr. Crane supported it.

Dr. Butt suggested that it would be “a prudent thing to do”.

Dr. Cairns considered a further review to be an ‘ethical duty’.

Dr. Pollanen, the Chief Forensic Pathologist of Ontario, agreed that to restore public confidence in pediatric forensic pathology, a range of cases much broader than those of Dr. Smith needed to be examined.

There are relatively low numbers of pediatric homicides in Ontario each year.

45 of them have already been examined.

A review of the remaining cases is unlikely to be a great deal more demanding than the review that led to this inquiry.

The number of pediatric homicides and criminally suspicious deaths in Ontario each year can be estimated at between 10 and 20, with 5 to 15 of these occurring in children under the age of five.

Of those, only a fraction would have resulted in criminal convictions.

The number of criminally suspicious pediatric deaths since 1981 therefore falls into a range of approximately to 200 to 300 at the very most, 45 of which have already been reviewed.

In the Goldsmith Review, almost 300 cases were studied within the span of approximately 10 months.

This effort has significant systemic value beyond the obvious utility of correcting errors and doing justice in individual cases.

The evidence heard at the Inquiry suggests that the Chief Coroner's Office has not, until recently, acknowledged, confronted, and worked to correct possible errors resulting from their pathologists' work.

This Inquiry heard evidence about a litany of circumstances that ought to have sparked an earlier, comprehensive review of Dr. Smith's work, including the following:

0: the judgment delivered by Justice Dunn in 1991 acquitting Amber's babysitter of homicide, which seriously criticized Dr. Smith's work and his lack of objectivity;

0: the 1999 abandonment of the Children's Aid Society child protection application after the investigation of Nicholas' death and the receipt of sharply conflicting expert opinions, followed by Maurice Gagnon's litany of complaints between 2000 and 2003 to those whom he hoped would listen;

0: the 1999 withdrawal of homicide charges against Jenna's mother once substantial expert evidence emerged that challenged Dr. Smith's opinion, and,

0: the College of Physicians and Surgeons investigations of Dr. Smith which commenced in 1999.

Instead, in January 2001, after the withdrawal of criminal charges against Tyrell's caregiver and Sharon's mother, an internal review of the pathology in only those two cases was conducted.

A broader, external review of Dr. Smith's work was aborted.

51 Dr. Smith wrote to Chief Coroner Dr. Young and requested he be removed from the roster of pathologists doing medico-legal autopsies.

(He later started again.)

James Lockyer, as a Director of AIDWYC, requested a review following the revelations about these two cases.

Dr. Young responded that no comprehensive review would be performed.

Two articles were published in Maclean's Magazine in May 2001, "Dead Wrong" and "The Babysitter Didn't Do It," which set out some of the history.

No review followed this adverse publicity; Dr. Cairns' comments quoted in the articles were supportive of Dr. Smith.

In December 2001, David Bayliss, as a Director of AIDWYC, wrote to Dr. Cairns to request a review of the pathology in William Mullins-Johnson's case; this would not follow for several years58.

Another internal review of pathology, later supplemented by an external consultation, at the request of the investigating police service, confirmed difficulties in Jenna's case.

It was not until intensifying media scrutiny of the lengthening list of problematic cases in 200360, with the stay of proceedings ordered by Justice Trafford in Athena's case in June of that year, that Dr. Smith resigned from all coroner's autopsy and committee work, and in July 2004, from his position entirely.

A tissue audit was prompted by materials missing in Mullins-Johnson's case, and the media attention and public pressure relating to this and controversy over Jenna's case led to the Chief Coroner's June 2005 announcement of his decision, finally, to review and scrutinize Dr. Smith's cases for errors in pathology opinions.

A decade and a half had passed since Justice Dunn's ruling.

Part of this Commission's mandate is to make recommendations that will assist to "restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings."

Public confidence will be restored not only by changes made to improve the system in the future to avoid the repetition of errors, but also by a scrupulously fair and penetrating review of past cases where those errors may have occurred.

The press releases from the Chief Coroner's Office in 2005 and 2007, as the review of Dr. Smith's work started and finished, explicitly make this connection.

The Chief Coroner's Office stated at the outset that, "Conducting this review is an essential step in maintaining the public confidence in all of the important work that is done, day in and day out, by coroners and pathologists who provide service for the Office of the Chief Coroner and the public," and at the conclusion that, "maintaining public confidence in the Ontario Coroner's System was an underlying reason for conducting this review."

The same holds true for a more comprehensive review.

Even if a difficult or time-consuming process, these reviews are essential to demonstrate to the public that the Chief Coroner's Office has successfully combated the culture of avoidance which created the environment to allow errors to be made and to stand uncorrected."

Harold Levy...hlevy15@gmail.com;