Stop The Press: Access To Information Request: Government Funding Of Smith Libel Suit Against CBC; Payment Authorized; Appeal To Be Launched;

"THE INVOICE - ON THE LETTERHEAD OF GOWLING, LAFLEUR, HENDERSON LLP, IS FOR A TOTAL OF $7,880.20;

AN APPARENTLY HAND-WRITTEN SIGNATURE "J. YOUNG M.D." IS LOCATED AT THE BOTTOM OF THE INVOICE.

A SIMILAR APPARENTLY HAND-WRITTEN NOTE IS LOCATED AT THE TOP OF THE INVOICE , SAYS "PAY DR. C. SMITH," AND HAS AN ARROW POINTING TOWARDS HIS NAME AND ADDRESS."

DESCRIPTION OF RECORD PROVIDED TO THE CHARLES SMITH BLOG IN RESPONSE TO ITS ACCESS TO INFORMATION APPLICATION;

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Dear Readers:

I have received a response to this Blog's application for records relating government funding of Dr. Charles Smith's lawsuit against the Canadian Broadcasting Corporation.

The government has provided me with three records;

The first record (two pages) is described as, "legal services invoice."

The second record (one page) is described as, "a printout of payment data."

The invoice - on the letterhead of Gowling, Lafleur, Henderson LLP, is for a total of $7,880.20;

An apparently hand-written signature "J. Young M.D." is located at the bottom of the invoice.

A similar apparently hand-written note is located at the top of the invoice , says, "pay Dr. C. Smith," and has an arrow pointing towards his name and address.

The third record bears the heading: "GEAC Financial System Payment Data."

Here is some of the information in contains:

Company: MSG2;

Name: Chief Coroner's Office;

Account: Legal Services Other;

Vendor Name; Dr. Charles Smith;

Amount: $7880.20;

Run Date: 11/3/2001;

The access coordinator's letter indicates that "solicitor client privilege has been waived" in relation to the first three records.

It goes on to say, however, that:

"Pages 4 to 7 are records that contain information reflecting confidential privileged communications. Access to these records is denied in accordance with the discretionary exemption from disclosure contained in section 19 of the Act for records that are subject to solicitor-client privilege or prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation."

Please be advised, dear readers, that I intend to pursue this matter by way of an appeal.

True, this would appear to conclusively establish that public funds were paid to Dr. Smith's lawyers to enable them to sue the CBC for libel in connection with the Fifth Estate Documentary.

(I personally find this to be outrageous and invite our reader's views);

However, I want to see the remaining documents to determine what, if any consideration was given to the constitutional propriety of using tax-payer's funds to to back a law-suit which could have the effect of chilling public discussion of Dr. Smith's work;

Any suggestions from our readers as grounds to be included in the appeal would be greatly appreciated.

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Here is the previous post as published on March 3, 2008, under the heading, "Blog applies for information on Ontario Government funding of private lawsuit brought by Dr. Charles Smith against the CBC.":

"The Charles Smith Blog is filing a request today for information relating to the Ontario government's partial funding of a libel suit brought personally by Dr. Charles Smith against the Canadian Broadcasting Corporation in connection with a hard-hitting Fifth Estate documentary;

The application, under Ontario's Freedom of Information legislation, is based on Dr. Young's testimony to the Goudge Inquiry as set out in a previous posting: "Young tells Inquiry he persuaded Ontario government to fund Dr. Charles Smith's libel suit against the CBC: Abuse of Office? December 3, 2007".

Ths Bloggist believes that there should be a public investigation into how public funds came to be used fund a private lawsuit against the CBC - an issue with important constitutional ramifications - but until that happens this application will have to do.

The Blog ran as follows:

"I -- I PASSED ON A MESSAGE FROM OUR LEGAL BRANCH, WHO HAD DISCUSSED IT WITHIN THE MINISTRY AND SAID THEY WOULD TO A VERY LIMITED EXTENT, THAT THEY WOULD PAY A SMALL AMOUNT TOWARDS THE --THE CASE."

FORMER CHIEF CORONER DR. JAMES YOUNG TO GOUDGE INQUIRY;

I am extremely troubled by former Chief Coroner Dr. James Young's evidence that he persuaded the Ontario government to financially back a private libel suit brought by Dr. Charles Smith against the CBC in connection with a hard-hitting documentary produced by the "Fifth Estate;" (The entire documentary can be found in previous postings: Interrogation of an innocent mother: Parts eleven to fourteen);

The groundbreaking documentary, telecast on Nov. 10. 1999 was highly critical of Dr. Smith's competence and credibility. (See earlier posting: Smith and the media; Part four; Fifth Estate probe triggers plea to Premier Mike Harris for inquiry into Smith cases; Deaf ears;)

It included interviews with the mother of a deceased child, Deputy Chief Coroner Dr. James Cairns, who was very supportive of Dr. Smith, and several medical experts who were critical of Smith's work in the cases examined by the program,

I am reprinting Dr. Young's testimony to the Inquiry earlier this week in full, so that the readers of this Blog can make their own judgment of the propriety of Dr. Young's actions;.

(Inquiry lawyer): MR. MARK SANDLER: All right. Now, we see, again, skipping ahead in time a little bit, that -- that Dr. Smith has filed a statement of claim against the CBC. And it's dated February of 2000, which would be not that long after the -- the matter was originally televised. And did you become aware of the existence of the statement of claim against The Fifth Estate?

DR. JAMES YOUNG: I became aware that he was going to issue a statement of claim.

MR. MARK SANDLER: And how did you become aware of that?

DR. JAMES YOUNG: I believe he asked me whether or not the Ministry would support -- would help with the legal fees if -- if he proceeded.

MR. MARK SANDLER: And did you get back to him about that?

DR. JAMES YOUNG: I did.

MR. MARK SANDLER: And what did you tell him?

DR. JAMES YOUNG: I -- I passed on a message from our legal branch, who had discussed it within the Ministry and said they would to a very limited extent, that they would pay a small amount towards the -- the case.

MR. MARK SANDLER: And did you support the -- the determination that at least to some extent he would be financially assisted, if he chose to go that route, by the Ministry?

DR. JAMES YOUNG: I believe I probably did. I remember bringing it forward for consideration, which was first and foremost what I agreed to do. I -- I probably said to a -- some limited extent we should -- we should back him on this.

MR. MARK SANDLER: Well, the question that arises is that to a limited extent you indicated to the Ministry that we should back him on this without having heard the telecast, without have read its contents, and without being in any position to
independently form an opinion as to whether there was any merit at all to his statement of claim?

DR. JAMES YOUNG: No. First of all, I've said I don't know if I said that, whether I backed him. I may have or I may not have, but I think I did -- probably did. The other issues that were going on at the time, within government, were that we were having discussions both with coroners and pathologists about issues around liability, workplace safety, providing lawyers for other hearings, et cetera.
And -- and it was becoming a very difficult matter when -- as -- as the number of things were increasing, they were saying, You know, if we're going to do the work for government, we expect support from government in return. So I remember that being an issue at the time, and I remember supporting it for that reason, that
I felt that it was important that we back the -- the people that are doing the work for us. If we're not prepared to back them, then we're not going to have them working for us. It was that simple."

Here is what troubles this Blogster.

First, the Government of Ontario;

If in fact the Ontario government did secretly throw money into Dr. Smith's private lawsuit - even one cent - there has been an extremely grave violation of the constitutionally protected right of Canadians to Freedom of Expression.

Lawsuits against the media are very dangerous because they can have a chilling effect - and can discourage the media from reporting fearlessly while the matter is awaiting trial.

Any government that secretly uses public dollars to support a private lawsuit - especially one launched in connection with a documentary that was critical of the Chief Coroner's office which is under the aegis of Ministry of the Solicitor General - crosses a very dangerous line.

Dr. Smith kept his lawsuit hanging over the CBC for years before ultimately dropping it) - just as he had sued MacLeans for a brilliant expose on Smith by reporter Jane O'Hara only to drop it before trial; (See previous posting: Smith and the Media: Part Five; Taking on Charles Smith; A second example of fearless journalism);

At the moment, we have no proof that the government did, in fact, help fund the lawsuit - just Dr. Young's testimony under oath at the Inquiry.

But Dr. Young's testimony puts a very strong onus on the McGuinty government to clear the air and tell us whether this happened or not.

If it did occur, questions abound;

Who in the Ministry's legal department approved and facilitated the funding?

What elected officials or civil servants in the Ministry gave their approval?

Have the individuals involved been brought to account?

If not, will they be brought to account?

Has there been a breach of ethical obligations by the politicians and civil servants involved?

Now for Dr. Young.

I am astounded that alarm bells didn't go off in his head when Dr. Smith asked him to persuade the government to help fund his lawsuit against the CBC - that he didn't realize at once that such a course of action could be perceived as an abuse of his office.

In this Blogster's view, Dr. Young's actions were aggravated by the fact that he signed a letter intended for the College of Physicians and Surgeons of Ontario which had been drafted by Dr. Smith's lawyers.

Dr. Young testified that he did not change a single word of this letter in which he defended Dr. Smith on the three complaints that had been filed against him - (and one of these complaints occupied a central role in the CBC documentary that was subject to the libel suit he wanted the Ontario government to help fund).

I, personally, find it very difficult to understand why Dr. Young would have asked the government to help pay for Dr. Smith's lawsuit in light of his sworn evidence that he had not seen the broadcast, he had not read its contents, and he was not in any position to independently ascertain the merit of Dr. Smith's statement of claim.

I will leave it for the readers of this Blog to decide if they accept Dr. Young's explanation that, "If we're (the coroners and pathologists) going to do the work for the government, we expect support from government in return."

I also find it very difficult to understand why Dr. Young just couldn't say "no" to Dr. Smith."

I will keep our readers informed about the progress of this application."

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When I wrote the above post I had somehow missed the fact that Dr. Smith admitted asking Dr. Young to secure government funding for his lawsuit.

I then included Dr. Smith's testimony on the issue in a posting called "How did I miss this?" which ran on April 12, 2008, as follows:

MS. LINDA ROTHSTEIN: WHY DID YOU FEEL THAT YOUR LAWSUIT WAS APPROPRIATE FOR THE GOVERNMENT OF ONTARIO TO FUND?

DR. CHARLES SMITH: THE -- THE ISSUE OF THE LAWSUIT WAS ONE (1) WHICH I HAD DESCRIBED WITH DR. YOUNG AND -- OR I HAD DISCUSSED, I'M SORRY, WITH DR. YOUNG. AND IT WAS AS A RESULT OF THOSE DISCUSSIONS THAT -- THAT DR. YOUNG HAD GIVEN ME HIS ADVICE ON WHAT -- WHAT HE THOUGHT WOULD BE REASONABLE FOR ME, AND AS PART OF THOSE DISCUSSIONS, INDICATED THAT -- THAT, AS BEST I RECALL, THAT IN HIS ROLE, EITHER AS CHIEF CORONER OR AS ASSISTANT DEPUTY MINISTER, THAT -- THAT HE COULD SEEK FINANCIAL SUPPORT FOR A LAWSUIT.

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DR. CHARLES SMITH: GOUDGE INQUIRY; JANUARY 29, 2008;

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As my brains started waking up this morning - with the help of a steaming cup of coffee - I started thinking about former Chief Coroner Dr. James Young's evidence that he helped secure government funding for Dr. Charles Smith's law suit against the Canadian Broadcasting Corporation in connection with a blistering "Fifth Estate" documentary that was highly critical both of Dr Smith and the Chief Coroner's Office;

(I am currently waiting for a response to my application under Ontario's access to information legislation for documents relating to Dr. Young's testimony at the Goudge Inquiry);

It occurred to me that Dr. Young's evidence was just one side of the story.

Was it possible that Dr. Smith had been asked about this during his five days of testimony - and that somehow I had missed it?

Sure enough, I discovered that Dr. Smith had been questioned directly on the point on JANUARY 29, 2008, while under cross-examination by Commission Counsel Linda Rothstein;

That testimony reads as follows:

MS. LINDA ROTHSTEIN: We'll come back to it. Do you recall asking Dr. Young to obtain government funding with respect to your lawsuit against the Fifth Estate?

DR. CHARLES SMITH: I -- I don't know if I asked him or he offered it, but -- but yes, that conversation did occur.

MS. LINDA ROTHSTEIN: Why did you feel that your lawsuit was appropriate for the Government of Ontario to fund?

DR. CHARLES SMITH: The -- the issue of the lawsuit was one (1) which I had described with Dr. Young and -- or I had discussed, I'm sorry, with Dr. Young. And it was as a result of those discussions that -- that Dr. Young had given me his advice on what -- what he thought would be reasonable for me, and as part of those discussions, indicated that -- that, as best I recall, that in his role, either as Chief Coroner or as Assistant Deputy Minister, that -- that he could seek financial support for a lawsuit.

MS. LINDA ROTHSTEIN: But, Dr. Smith, didn't the Fifth Estate raise the very issues with respect to Nicholas' case and Amber's case that you've now acknowledged in your written evidence; the same issues that you've acknowledged manifested errors by you?

DR. CHARLES SMITH: The -- the Fifth Estate did point to issues, but at the same time, I think that I minimized or rationalized some of those issues or errors by things like the fact that I was supported by opinions of others, which came -- which -- which lay similar to mine or supported mine. (A)nd so the -- and so as I explained yesterday, I -- I think I minimized them and -- and reacted to them as -- to make them go away, as opposed to try to dissect through and -- and determine the truth or the kernel of the issues.

MS. LINDA ROTHSTEIN: Would it be fair to say you were trying to fend off any criticism of you to the extent you could?

DR. CHARLES SMITH: Yes. Absolutely. Yes. Yes. That was part of the discussion that had gone on with Dr. Young as well.

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Harold Levy...hlevy15@gmail.com;