A Canadian Press story published earlier today may give some insight into Justicre Stephen Goudge's report to be released at 12.00 noon tomorrow.
The story, by seasoned reporter Colin Perkel, appears under the heading, "Coroners, child forensic pathologist slammed in inquiry report."
"Ontario's former chief coroner James Young and his deputy Jim Cairns will face biting criticism Wednesday when a landmark inquiry reports on a flawed pediatric forensic pathology system that led to several wrongful prosecutions, The Canadian Press has learned," the story begins.
"Dr. Charles Smith, the once highly regarded but now disgraced former chief pediatric forensic pathologist in Ontario, also comes in for “severe” criticism at the hands of Justice Stephen Goudge, a source said," it continues.
"Judge Goudge's 1,000-page report – formally handed to the provincial government Tuesday – contains more than 160 recommendations aimed at preventing similar tragedies.
“The reforms are extensive and are aimed squarely at the accountability and oversight,” the source said.
“He uses individual cases to illustrate his recommendations.”
Those recommendations include setting up a committee to provide oversight of the chief coroner's office, along with ensuring forensic pathologists take better care in how they couch their opinions about wrongdoing.
Judge Goudge also wants to make the short-staffed forensics field more attractive by paying pathologists more money, along with setting up accredited university programs to train them.
Victims of child forensic pathology gone horribly wrong, along with forensic pathologists and those who oversee and regulate their work, will be scrutinizing the findings – and the response to them – closely.
“They're going to be very important to the death-investigation process in the province,” Peter Wardle, lawyer for five families affected by faulty pediatric forensic pathology, said Tuesday.
“It's going to be critical that the government act on those recommendations.”
Inquiry spokesman Peter Rehak said commission lawyers would only comment on Judge Goudge's report after its release. The government also said it would respond publicly Wednesday.
Questions about Dr. Smith's work are what prompted the judicial inquiry.
The provincial coroner's office found evidence of errors in 20 of 45 autopsies he did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges.
William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes.
The cases, along with other heart-rending stories of wrongful prosecutions based on Dr. Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence.
Over months of testimony, the key players – Dr. Young, Dr. Cairns and Dr. Smith himself – offered apologies or shed tears over their roles in the forensics fiasco.
“Sir, I don't expect that you would forgive me,” Dr. Smith said to Mr. Mullins-Johnson, his voice catching and his eyes welling with tears. “I do want to make it very clear to you that I am profoundly sorry for the role that I played.”
The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, chronic tardiness, and the catastrophic misinterpretation of findings.
In one notorious case, he concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling.
But Dr. Smith, who argued he was poorly trained and woefully ignorant of the workings of the justice system despite his star status, was also a victim of a broader system and woefully inadequate oversight, the report makes clear, the source said.
Under Dr. Young and Dr. Cairns, the coroner's office failed to monitor his work or act on repeated complaints about him, the inquiry heard.
“I was aware of the general concerns but I can't recall specifics,” Dr. Young testified after admitting he did not act on several opportunities to take a serious look at criticism of Dr. Smith.
“None of them stuck with me,” Dr. Young told the inquiry. “I regret it deeply but I can't go back and change history.”
Dr. Young, who took a hands-off approach to his job given demands of other duties, said he was “distant from the office.”
He, too, apologized for causing distress to those who were “wrongfully convicted (or) detained” or were forced to give up a child to the child-welfare authorities.
Similarly, his deputy found himself apologizing for defending Dr. Smith, who had developed a reputation as the country's pre-eminent child forensic pathologist.
No one dared question his work, Dr. Cairns testified.
It was only when the growing scandal threatened to overwhelming the coroner's office – more than a decade after the first alarm bells sounded – did Dr. Smith's bosses act to relieve him of his duties.
The forensics scandal has already prompted the provincial government to create a specialized “child homicide team” of senior prosecutors with expertise in child homicides.
Premier Dalton McGuinty has also promised to consider compensation for Dr. Smith's victims after Judge Goudge's report is made public."
Harold Levy...hlevy15@gmail.com;
Tuesday, September 30, 2008
COUNTDOWN: 1 DAY TO GO; MURDER CHARGED DROPPED AGAINST TORONTO ACCUSED IN DEATH OF INFANT DAUGHTER TWO DAYS BEFORE RELEASE OF GOUDGE REPORT;
"COINCIDENTALLY, THE DEVELOPMENT CAME ON THE EVE OF A MAJOR REPORT FROM AN INQUIRY INTO ONTARIO'S PEDIATRIC PATHOLOGY SYSTEM, AN INVESTIGATION CALLED AFTER SEVERAL OTHER PARENTS WERE WRONGLY ACCUSED – AND IN SOME CASES CONVICTED – OF KILLING THEIR INFANT CHILDREN."
REPORTER TRACEY TYLER: TORONTO STAR;
-------------------------------------------------------------------------------
A story in today's Toronto Star has many of the hallmarks of cases considered by the Goudge Inquiry over the past eighteen months - but most of all the fact that it involves a mother charged with murdering her daughter on the basis of nothing more than her reactions following the infant's death.
The notable difference, with a handful of exceptions, being that the charge was withdrawn- albeit after the mother had gone through the horror and infamy of being charged with murdering her own child and had spent five and a half months behind bars.
The story, by reporter Tracey Tyler, appears in today's Toronto Star under the heading, "Charges dropped in baby's death," and runs under the sub-heading, "Xiu Zheng's arrest based on her reaction after death, court told."
"A 39-year-old Toronto woman who was accused of killing her infant daughter walked free yesterday after a court was told the charge was based on apparently nothing more than her own physical reactions in the aftermath of the child's death," the story begins.
"Accompanied by family members, Xiu Zheng left the Old City Hall courthouse quickly and quietly after a charge of second-degree murder, laid by Toronto police last February, was withdrawn," it continues.
"Coincidentally, the development came on the eve of a major report from an inquiry into Ontario's pediatric pathology system, an investigation called after several other parents were wrongly accused – and in some cases convicted – of killing their infant children.
That report is to be released tomorrow.
Zheng's case was not among those considered by the inquiry, headed by Justice Stephen Goudge of the Ontario Court of Appeal. But her lawyer, James Lockyer, is optimistic Goudge's report will usher in sweeping reforms.
Much of her ordeal – which included five months in a segregation cell at a Milton jail – could have been avoided if police had waited two days for an autopsy to be performed, instead of charging her after an interview conducted in the hours after 40-day-old Xin Lei was found dead, he said.
"Police jumped the gun," Lockyer said in an interview outside court yesterday.
Arrested shortly after her daughter was pronounced dead by paramedics on Feb. 23, Zheng – who came to Canada in 2006 and speaks no English – was "essentially catatonic," unclear on what was happening and unaware of her rights, Lockyer said.
During the interview, she stared at the floor, mumbling "mmmm" and nodding her head in response to virtually anything posed to her by officers, which included suggestions as to how her daughter might have died, all of which amounted to "homicide," he said.
Assistant Crown attorney Jill Witkin told Justice Paul Bentley that Zheng's videotaped statement would likely be ruled inadmissible because of her condition at the time of the interview.
Two days after she was questioned, Dr. David Chiasson, the director of pediatric forensic pathology at the Hospital for Sick Children, concluded an autopsy did not reveal a cause of death. Toxicology tests also provided no answers.
Zheng came to Canada in 2006 with two other daughters, ages 4 and 10. Her husband, Li Huang, had arrived earlier.
On the day his youngest daughter died, Huang left the family's home on Manning Ave., near Bathurst and Queen Sts., around 7:30 a.m. to look for work. When he returned home some 12 hours later, the baby appeared to be asleep in bed, with a pillow under her head and a quilt rolled up to her chest, the court was told.
But Zheng was pacing back and forth.
Later that night, Huang's sister and landlord came downstairs to see little Xin Lei, telling her brother the child looked pale. He called paramedics after discovering she was cold and wouldn't wake up.
Witkin said the Crown concluded there was no reasonable prospect of conviction after reviewing Chiasson's report in May."
Harold Levy...hlevy15@gmail.com;
REPORTER TRACEY TYLER: TORONTO STAR;
-------------------------------------------------------------------------------
A story in today's Toronto Star has many of the hallmarks of cases considered by the Goudge Inquiry over the past eighteen months - but most of all the fact that it involves a mother charged with murdering her daughter on the basis of nothing more than her reactions following the infant's death.
The notable difference, with a handful of exceptions, being that the charge was withdrawn- albeit after the mother had gone through the horror and infamy of being charged with murdering her own child and had spent five and a half months behind bars.
The story, by reporter Tracey Tyler, appears in today's Toronto Star under the heading, "Charges dropped in baby's death," and runs under the sub-heading, "Xiu Zheng's arrest based on her reaction after death, court told."
"A 39-year-old Toronto woman who was accused of killing her infant daughter walked free yesterday after a court was told the charge was based on apparently nothing more than her own physical reactions in the aftermath of the child's death," the story begins.
"Accompanied by family members, Xiu Zheng left the Old City Hall courthouse quickly and quietly after a charge of second-degree murder, laid by Toronto police last February, was withdrawn," it continues.
"Coincidentally, the development came on the eve of a major report from an inquiry into Ontario's pediatric pathology system, an investigation called after several other parents were wrongly accused – and in some cases convicted – of killing their infant children.
That report is to be released tomorrow.
Zheng's case was not among those considered by the inquiry, headed by Justice Stephen Goudge of the Ontario Court of Appeal. But her lawyer, James Lockyer, is optimistic Goudge's report will usher in sweeping reforms.
Much of her ordeal – which included five months in a segregation cell at a Milton jail – could have been avoided if police had waited two days for an autopsy to be performed, instead of charging her after an interview conducted in the hours after 40-day-old Xin Lei was found dead, he said.
"Police jumped the gun," Lockyer said in an interview outside court yesterday.
Arrested shortly after her daughter was pronounced dead by paramedics on Feb. 23, Zheng – who came to Canada in 2006 and speaks no English – was "essentially catatonic," unclear on what was happening and unaware of her rights, Lockyer said.
During the interview, she stared at the floor, mumbling "mmmm" and nodding her head in response to virtually anything posed to her by officers, which included suggestions as to how her daughter might have died, all of which amounted to "homicide," he said.
Assistant Crown attorney Jill Witkin told Justice Paul Bentley that Zheng's videotaped statement would likely be ruled inadmissible because of her condition at the time of the interview.
Two days after she was questioned, Dr. David Chiasson, the director of pediatric forensic pathology at the Hospital for Sick Children, concluded an autopsy did not reveal a cause of death. Toxicology tests also provided no answers.
Zheng came to Canada in 2006 with two other daughters, ages 4 and 10. Her husband, Li Huang, had arrived earlier.
On the day his youngest daughter died, Huang left the family's home on Manning Ave., near Bathurst and Queen Sts., around 7:30 a.m. to look for work. When he returned home some 12 hours later, the baby appeared to be asleep in bed, with a pillow under her head and a quilt rolled up to her chest, the court was told.
But Zheng was pacing back and forth.
Later that night, Huang's sister and landlord came downstairs to see little Xin Lei, telling her brother the child looked pale. He called paramedics after discovering she was cold and wouldn't wake up.
Witkin said the Crown concluded there was no reasonable prospect of conviction after reviewing Chiasson's report in May."
Harold Levy...hlevy15@gmail.com;
COUNTDOWN: 1 DAY TO GO; GLOBE AND MAIL SET-UP STORY; MASSIVE RESTRUCTURING OF ENTIRE PEDIATRIC DEATH INVESTIGATION SYSTEM IN ONTARIO ANTICIPATED;
"THIS IS A UNIQUE OPPORTUNITY FOR THE ADMINISTRATION OF JUSTICE," FRANK ADDARIO, PRESIDENT OF THE CRIMINAL LAWYERS ASSOCIATION, SAID IN AN INTERVIEW. "USUALLY, A WRONGFUL CONVICTION INQUIRY INVOLVES EXTRAPOLATING FROM A SINGLE EVENT TO PERCEIVED SYSTEMIC FAILURE. HERE, WE HAVE NUMEROUS PROVEN EXAMPLES OF WRONGFUL CONVICTIONS. THE COMMISSIONER CAN SPEAK AUTHORITATIVELY ABOUT WHAT WENT WRONG AND HOW TO FIX IT."
FRANK ADDARIO: PRESIDENT; CRIMINAL LAWYERS ASSOCIATION;
-------------------------------------------------------------------------------
A common theme of some of the lawyers who participated in the Goudge Inquiry is that Justice Goudge is going to overhaul Ontario's system for investigating pediatric deaths.
Their views appear in a story by Justice Reporter Kirk Makin, headed, "Major overhaul of pediatric-death investigations likely to be recommended, insiders say."
(My only quibble is that some editor threw in the caption "Charles Smith Autopsy Scandal." The word "Scandal" diminishes the tragic dimensions of this breakdown in our system of criminal justice);
"A report delving into a string of wrongful murder charges and convictions caused by pathology errors is expected to urge a major restructuring of the entire system of pediatric death investigations when it is released on Wednesday," the story, published September 29, begins.
"Lawyers familiar with the inquiry - some of whom spoke on the condition of anonymity - anticipate that inquiry commissioner Mr. Justice Stephen Goudge will recommend," the story continues.
"The establishment of accredited forensic pathology programs in Canadian universities.
A substantial hike in salaries for forensic pathologists aimed at ending a long-standing problem of filling vacancies.
The creation of a powerful oversight committee to provide independent review of the problem-plagued Office of the Chief Coroner of Ontario.
Stringent policies about the wording forensic pathologists may use to express findings of potential wrongdoing, in hopes of reducing conjecture.
Combining enhanced legal aid fees with new procedures in the chief coroner's office to ensure that defence lawyers have access to top pathologists.
Redistributing power in the chief coroner's office to give the chief forensic pathologist a far greater role in decision-making.
"This is a unique opportunity for the administration of justice," Frank Addario, president of the Criminal Lawyers Association, said in an interview. "Usually, a wrongful conviction inquiry involves extrapolating from a single event to perceived systemic failure. Here, we have numerous proven examples of wrongful convictions. The commissioner can speak authoritatively about what went wrong and how to fix it."
Peter Wardle, a lawyer for several of those wrongly convicted based on evidence from forensic pathologist Charles Smith, said the Ontario government will have a tough time ignoring Judge Goudge's recommendations.
"There has been enough public attention that it is a political issue," Mr. Wardle said. "I think you'll see a fairly swift response. If Justice Goudge says that we need x-million dollars to hire the right people and reinvigorate the Coroner's Office, then the government isn't going to have a lot of choice."
Launched after a shadow of doubt was cast across 20 cases in which Dr. Smith played a key role, the inquiry will likely point toward his supervisors - chief coroner James Young and deputy chief coroner James Cairns.
Judge Goudge cannot infer potential civil or criminal liability on anyone's part, but that does not mean that he won't point out their shortcomings.
"I believe that the commissioner will want to make it clear that the problems did not start and stop with Dr. Smith, but began with poor oversight and direction from those running the Coroner's Office," Mr. Wardle remarked.
Typically, the art of conducting an inquiry includes crafting recommendations that hint toward conclusions that a commissioner is not technically permitted to reach.
For the Goudge commission, one of those issues will be compensating those who were wrongly convicted or pleaded guilty to crimes they did not commit to avoid a harsh prison sentence. Judge Goudge cannot award compensation, but he can nudge the province in that direction.
"The public, I think, understands that these individuals shouldn't have to chase Dr. Smith and others through private lawsuits for years and years," Mr. Wardle said.
For most of the protagonists, the inquiry report represents the end of a long and harrowing road. However, that may not be the case for Dr. Smith.
Lawsuits launched by the victims of wrongful convictions have targeted him personally, as well as the government. They are expected to proceed to trial, unless the government negotiates a compensation settlement that includes dropping them.
As far as professional discipline is concerned, most observers believe that the College of Physicians and Surgeons of Ontario will move quickly against Dr. Smith, potentially going as far as to remove his licence to practise.
"It's almost inevitable that there will be further college proceedings involving Dr. Smith given the evidence that emerged at the inquiry," Mr. Wardle said.
On the other hand, making criminal charges stick would be a dicey proposition. The Crown would be required to show that his errors were more than a result of carelessness or reckless overconfidence, but instead showed signs of criminal intent."
Harld Levy...hlevy15@gmai.com;
FRANK ADDARIO: PRESIDENT; CRIMINAL LAWYERS ASSOCIATION;
-------------------------------------------------------------------------------
A common theme of some of the lawyers who participated in the Goudge Inquiry is that Justice Goudge is going to overhaul Ontario's system for investigating pediatric deaths.
Their views appear in a story by Justice Reporter Kirk Makin, headed, "Major overhaul of pediatric-death investigations likely to be recommended, insiders say."
(My only quibble is that some editor threw in the caption "Charles Smith Autopsy Scandal." The word "Scandal" diminishes the tragic dimensions of this breakdown in our system of criminal justice);
"A report delving into a string of wrongful murder charges and convictions caused by pathology errors is expected to urge a major restructuring of the entire system of pediatric death investigations when it is released on Wednesday," the story, published September 29, begins.
"Lawyers familiar with the inquiry - some of whom spoke on the condition of anonymity - anticipate that inquiry commissioner Mr. Justice Stephen Goudge will recommend," the story continues.
"The establishment of accredited forensic pathology programs in Canadian universities.
A substantial hike in salaries for forensic pathologists aimed at ending a long-standing problem of filling vacancies.
The creation of a powerful oversight committee to provide independent review of the problem-plagued Office of the Chief Coroner of Ontario.
Stringent policies about the wording forensic pathologists may use to express findings of potential wrongdoing, in hopes of reducing conjecture.
Combining enhanced legal aid fees with new procedures in the chief coroner's office to ensure that defence lawyers have access to top pathologists.
Redistributing power in the chief coroner's office to give the chief forensic pathologist a far greater role in decision-making.
"This is a unique opportunity for the administration of justice," Frank Addario, president of the Criminal Lawyers Association, said in an interview. "Usually, a wrongful conviction inquiry involves extrapolating from a single event to perceived systemic failure. Here, we have numerous proven examples of wrongful convictions. The commissioner can speak authoritatively about what went wrong and how to fix it."
Peter Wardle, a lawyer for several of those wrongly convicted based on evidence from forensic pathologist Charles Smith, said the Ontario government will have a tough time ignoring Judge Goudge's recommendations.
"There has been enough public attention that it is a political issue," Mr. Wardle said. "I think you'll see a fairly swift response. If Justice Goudge says that we need x-million dollars to hire the right people and reinvigorate the Coroner's Office, then the government isn't going to have a lot of choice."
Launched after a shadow of doubt was cast across 20 cases in which Dr. Smith played a key role, the inquiry will likely point toward his supervisors - chief coroner James Young and deputy chief coroner James Cairns.
Judge Goudge cannot infer potential civil or criminal liability on anyone's part, but that does not mean that he won't point out their shortcomings.
"I believe that the commissioner will want to make it clear that the problems did not start and stop with Dr. Smith, but began with poor oversight and direction from those running the Coroner's Office," Mr. Wardle remarked.
Typically, the art of conducting an inquiry includes crafting recommendations that hint toward conclusions that a commissioner is not technically permitted to reach.
For the Goudge commission, one of those issues will be compensating those who were wrongly convicted or pleaded guilty to crimes they did not commit to avoid a harsh prison sentence. Judge Goudge cannot award compensation, but he can nudge the province in that direction.
"The public, I think, understands that these individuals shouldn't have to chase Dr. Smith and others through private lawsuits for years and years," Mr. Wardle said.
For most of the protagonists, the inquiry report represents the end of a long and harrowing road. However, that may not be the case for Dr. Smith.
Lawsuits launched by the victims of wrongful convictions have targeted him personally, as well as the government. They are expected to proceed to trial, unless the government negotiates a compensation settlement that includes dropping them.
As far as professional discipline is concerned, most observers believe that the College of Physicians and Surgeons of Ontario will move quickly against Dr. Smith, potentially going as far as to remove his licence to practise.
"It's almost inevitable that there will be further college proceedings involving Dr. Smith given the evidence that emerged at the inquiry," Mr. Wardle said.
On the other hand, making criminal charges stick would be a dicey proposition. The Crown would be required to show that his errors were more than a result of carelessness or reckless overconfidence, but instead showed signs of criminal intent."
Harld Levy...hlevy15@gmai.com;
COUNTDOWN: 1 DAY TO GO; WIND-UP TO "STARTLING REVELATIONS" SERIES:
In retrospect, the Goudge Inquiry turned out to be a field day for reporters because of the many startling revelations which I have been reviewing over the past several weeks.
(Please let me know if, in your view, I have left any out!)
In today's posting, I am listing all of these "startling revelations" in one place for the benefit of our readers, as follows:
0: The introduction of an affidavit from Provincial Court Judge Patrick Dunn which contradicts evidence given by Dr. Smith to the Commission; The intervention of a judge into a public inquiry is an extremely rare event;
0: Introduction from a letter from the Ontario Provincial Police to the Chief Coroner Dr. James Young alleging that Dr. Smith had attempted to intimidate an officer into not giving him a speeding ticket.
0: Dr. Smith's admission of bias; I always viewed Dr. Smith as a cheerleader for the prosecution - but I never dreamed that he would actually admit that he believed his job was to help the prosecution win the case. My only question was how far he would go to make this happen.
0: Maxine Johnson's potentially devastating testimony that she discovered the missing Mullins-Johnson's slides on a shelf in a location in Dr. Smith's office at the Hospital for Sick Children that had already been searched to no avail.
0: Unexpected introduction by a letter from the Barrie, Ontario Police Service, which indicated that Smith, with the support of the Chief Coroner's Office, had agreed to participate in an electronic surveillance operation involving the mother of a deceased child.
0: Evidence of a damage control meeting conducted by the Hospital for Sick Children SCAN team (and several prosecutors) following the rejection of its evidence - together with the evidence given by Dr. Charles Smith - by Judge Patrick Dunn in the Amber case.
0: Evidence that prosecutors did not inform Dinesh Kumar's lawyer about Judge Patrick Dunn's searing critique of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN-Team before insisting on a guilty plea to criminal negligence causing his son's death.
0: Evidence that the prosecutors insisted on this plea - as an alternative to the Crown proceeding on the second-degree murder charge - even though Dr. Smith had informed the police that he and Dr. Dirk Huyer of the SCAN-Team were not sure that there was any criminality in the case;
0: Former Chief Coroner Dr. James Young's testimony that he sent under his own signature a letter drafted by Dr. Smith's lawyers (McCarthy Tetrault) to an investigator for the College of Physicians and Surgeons of Ontario which was probing three complaints against Smith. The letter was fully supportive of Dr. Smith.
0: Evidence given to the Goudge Inquiry by College of Physicians and Surgeons investigator Michele Mann which directly and unequivocally contradicted Dr. Young's sworn testimony that he was not aware that Judge Dunn's decision was highly critical of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN team in the Amber case;
0: Dr. Young's testimony that he arranged for public funds to be provided to Dr. Smith to help fund a libel suit against the CBC in connection with a groundbreaking Fifth Estate documentary which showed both Smith and the Chief Coroner's office in a very poor light;
0: Maxine Johnson's evidence on Dr. Smith's dangerously flawed work and erratic work habits at the Hospital for Sick Children - and his tendency to unfairly cast blame on hospital staff who were trying to help him out.
0: A letter to the head of the pathology department at Sick Kids from several of Dr. Smith's colleagues who complain that Dr. Smith has misinterpreted the tissue samples taken from young patients in several cases;
0: A letter addressed to Dr. Smith from the head of pathology department which curtails the nature of the work he is permitted to do, lowers his salary accordingly and also requires him to take some courses. (It does not appear from the evidence that this letter was ever sent by the Hospital to Dr. Smith):
0: Evidence that Dr. Smith backdated reports to make it appear that his work relating to the hospital's patients had been done in a more punctual manner. (It suggests that Dr. Smith was dishonest in both his work for the Coroner's office and his work relating to living patients as a staff member of the hospital;)
0: Evidence that the deficiencies in Dr. Smith's work for the hospital - and his work habits - were never brought to the attention of the Chief Coroner's Office - or to the College of Physicians and Surgeons, the regulatory body of the self-governing medical profession in Ontario;
0: Dr. Michael Pollanen's evidence that Dr. Charles Smith's erroneous views on so-called baby-shaking deaths and head-injury cases were widely shared by other pathologists. (It raised the disturbing possibility that dozens that numerous other individuals may have been wrongfully charged and convicted of killing children due to the imperfect, but convincing, pathology of the day.)
0; Evidence that at least 17 children were removed from their homes by Children's Aid Societies as a result of Dr. Smith's faulty work on cases where a sibling had died. There was also startling evidence that at least three children were adopted out to other families. (There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.)
Harold Levy...hlevy15@gmail.com;
(Please let me know if, in your view, I have left any out!)
In today's posting, I am listing all of these "startling revelations" in one place for the benefit of our readers, as follows:
0: The introduction of an affidavit from Provincial Court Judge Patrick Dunn which contradicts evidence given by Dr. Smith to the Commission; The intervention of a judge into a public inquiry is an extremely rare event;
0: Introduction from a letter from the Ontario Provincial Police to the Chief Coroner Dr. James Young alleging that Dr. Smith had attempted to intimidate an officer into not giving him a speeding ticket.
0: Dr. Smith's admission of bias; I always viewed Dr. Smith as a cheerleader for the prosecution - but I never dreamed that he would actually admit that he believed his job was to help the prosecution win the case. My only question was how far he would go to make this happen.
0: Maxine Johnson's potentially devastating testimony that she discovered the missing Mullins-Johnson's slides on a shelf in a location in Dr. Smith's office at the Hospital for Sick Children that had already been searched to no avail.
0: Unexpected introduction by a letter from the Barrie, Ontario Police Service, which indicated that Smith, with the support of the Chief Coroner's Office, had agreed to participate in an electronic surveillance operation involving the mother of a deceased child.
0: Evidence of a damage control meeting conducted by the Hospital for Sick Children SCAN team (and several prosecutors) following the rejection of its evidence - together with the evidence given by Dr. Charles Smith - by Judge Patrick Dunn in the Amber case.
0: Evidence that prosecutors did not inform Dinesh Kumar's lawyer about Judge Patrick Dunn's searing critique of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN-Team before insisting on a guilty plea to criminal negligence causing his son's death.
0: Evidence that the prosecutors insisted on this plea - as an alternative to the Crown proceeding on the second-degree murder charge - even though Dr. Smith had informed the police that he and Dr. Dirk Huyer of the SCAN-Team were not sure that there was any criminality in the case;
0: Former Chief Coroner Dr. James Young's testimony that he sent under his own signature a letter drafted by Dr. Smith's lawyers (McCarthy Tetrault) to an investigator for the College of Physicians and Surgeons of Ontario which was probing three complaints against Smith. The letter was fully supportive of Dr. Smith.
0: Evidence given to the Goudge Inquiry by College of Physicians and Surgeons investigator Michele Mann which directly and unequivocally contradicted Dr. Young's sworn testimony that he was not aware that Judge Dunn's decision was highly critical of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN team in the Amber case;
0: Dr. Young's testimony that he arranged for public funds to be provided to Dr. Smith to help fund a libel suit against the CBC in connection with a groundbreaking Fifth Estate documentary which showed both Smith and the Chief Coroner's office in a very poor light;
0: Maxine Johnson's evidence on Dr. Smith's dangerously flawed work and erratic work habits at the Hospital for Sick Children - and his tendency to unfairly cast blame on hospital staff who were trying to help him out.
0: A letter to the head of the pathology department at Sick Kids from several of Dr. Smith's colleagues who complain that Dr. Smith has misinterpreted the tissue samples taken from young patients in several cases;
0: A letter addressed to Dr. Smith from the head of pathology department which curtails the nature of the work he is permitted to do, lowers his salary accordingly and also requires him to take some courses. (It does not appear from the evidence that this letter was ever sent by the Hospital to Dr. Smith):
0: Evidence that Dr. Smith backdated reports to make it appear that his work relating to the hospital's patients had been done in a more punctual manner. (It suggests that Dr. Smith was dishonest in both his work for the Coroner's office and his work relating to living patients as a staff member of the hospital;)
0: Evidence that the deficiencies in Dr. Smith's work for the hospital - and his work habits - were never brought to the attention of the Chief Coroner's Office - or to the College of Physicians and Surgeons, the regulatory body of the self-governing medical profession in Ontario;
0: Dr. Michael Pollanen's evidence that Dr. Charles Smith's erroneous views on so-called baby-shaking deaths and head-injury cases were widely shared by other pathologists. (It raised the disturbing possibility that dozens that numerous other individuals may have been wrongfully charged and convicted of killing children due to the imperfect, but convincing, pathology of the day.)
0; Evidence that at least 17 children were removed from their homes by Children's Aid Societies as a result of Dr. Smith's faulty work on cases where a sibling had died. There was also startling evidence that at least three children were adopted out to other families. (There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.)
Harold Levy...hlevy15@gmail.com;
Monday, September 29, 2008
COUNTDOWN: 2 DAYS TO GO; STARTLING REVELATIONS; PART NINE;
One of the most horrifying revelations during the Goudge Inquiry was the fact that at least 17 children were removed from their homes by Children's Aid Societies as a result of Dr. Smith's faulty work on cases where a sibling had died.
This perversion of state power was evident in a post which ran on Monday, March 17, 2008, under the heading, "Part One: Collateral Damage: Dr. Charles Smith's Forgotten Victims;"
The post, reproduced a moving article by my Toronto Star Colleague Theresa Boyle, was topped by the following quote;
"THE BOY, CHRISTOPHER (NOT HIS REAL NAME), IS ONE OF AT LEAST 17 CHILDREN WHOSE LIVES WERE THROWN INTO CHAOS AFTER THE DEATH OF A SIBLING. IN EACH CASE, DISGRACED PATHOLOGIST DR. CHARLES SMITH PERFORMED AN AUTOPSY OR OFFERED A CONSULTING OPINION ON THE DEATHS. BAD ENOUGH THEY HAD LOST A SISTER OR A BROTHER. BUT SMITH'S MISTAKES HELPED IMPLICATE THEIR PARENTS AND RESULTED IN THESE CHILDREN BEING REMOVED FROM THEIR HOMES BY CHILDREN'S AID SOCIETIES."
THERESA BOYLE: TORONTO STAR;
"The "collateral damage" caused by Dr. Charles Smith has been vividly captured by Toronto Star reporter Theresa Boyle, in a story, published on March 9, 2008, that focuses on "The 'forgotten victims' torn from their homes," the post began.
"The disturbing story is accompanied by a photograph of Sherry Sherret in her home, holding the baby album of the son taken away from her for adoption," it continued;
"Boyle's story makes the point that much of the damage caused by Smith - and those who failed to rein him in - will linger for years to come.
"July 2012. This date won't come soon enough for Sherry Sherret," Boyle's story begins;
"It's when her first born will turn 18. And it's when the Belleville mother will finally be reunited with the son who was put up for adoption when he was only 5," it continues.
"The boy, Christopher (not his real name), is one of at least 17 children whose lives were thrown into chaos after the death of a sibling. In each case, disgraced pathologist Dr. Charles Smith performed an autopsy or offered a consulting opinion on the deaths. Bad enough they had lost a sister or a brother. But Smith's mistakes helped implicate their parents and resulted in these children being removed from their homes by children's aid societies.
At least three children, including Christopher, were adopted out to other families. There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.
The remaining children were sent to live with relatives or foster families for as long as two years.These children are from the 20 botched death investigations that have been explored at the ongoing Inquiry into Pediatric Forensic Pathology. A panel of renowned forensic pathologists determined Smith erred in all these cases.
While attention has largely been focused on potentially wrongful convictions, these children have been the "forgotten victims" of his errors, says Julie Kirkpatrick, lawyer for one family.
The upheaval they faced is "among the worst consequences of Smith's mistakes," she says, adding they are no less victims of miscarriages of justice.
One of the many issues explored at the inquiry is that of child protection. Child advocates are putting forth an array of recommendations on behalf of the displaced children, including possible reconciliation of broken-up families.
Twice a year, Sherret, 32, gets letters and pictures from Christopher. She stares at the photos intently, looking for signs of her son's growth. From a picture he sent this past Christmas, she can see his face had filled out some. He looks more like his dad, her ex, she notes. But she can see her own DNA in his eyes.
"He's a gorgeous young man. He will be 14 years old in July. I keep thinking to myself, four more years," she says.
In his letters to her, he addresses her as "Dear Sherry."
"That hurts," she says. "But it's understandable."
She signs her letters back, "Love, Mommy Sherry."
Sherret lost two sons in 1996. That January, she discovered 4-month-old Joshua dead in his playpen. Smith said the child was suffocated, as evidenced by marks on his neck. The pathologist also said the boy had a fractured skull. Sherret was charged with first-degree murder.
Years later, when Smith's work came under scrutiny, Joshua's body was exhumed. It was revealed his skull wasn't fractured and the marks on his neck were actually created by Smith, himself, during the autopsy. Experts who reviewed the case said Joshua had accidentally asphyxiated in an unsafe sleep environment. He had slept in a playpen, under a sleeping bag, comforter and blankets.
Child-welfare workers removed Christopher, then 18 months, from her custody. He was first placed with his grandparents and then with a foster family.
In January 1999, Sherret was convicted on a reduced charge of infanticide. The following June she was sentenced to a year in jail and two years probation. Meantime, Sherret learned children's aid was putting forth an application to the courts to have Christopher move from foster care to adoption. The foster family told Sherret they would be willing to make him a permanent part of their family.
Evoking the parable of King Solomon threatening to split a baby to determine its rightful mother, Sherret made the difficult decision to let this family adopt her son, fearing he could otherwise bounce around different homes. The adoption agreement included the exchange of letters, annual phone calls from Christopher's foster mother and plans for a reunion when he turns 18.
Lawyer Suzan Fraser has been representing Defence for Children International at the inquiry. The group aims to protect the rights of youngsters and is going to bat for the 17 displaced children.
"The big problem is that there is no process for dealing with apprehension or adoption orders made on the basis of flawed pathology evidence," Fraser remarks.
She says the damage inflicted on the affected children is immeasurable. "Imagine the anger and the sorrow to learn that you had been wrongfully taken from your mother or father. Imagine the taunts of the other children in foster care teasing you because your mother killed your sister.
"Imagine the horror of losing your sibling and then your mother, when your mother was actually protective rather than the killer everyone thought she was? Imagine having no power to fix it."
Fraser is fearful there may be even more children out there who were uprooted from their homes because of errors Smith made in child-death investigations. Undoing Smith's mistakes isn't so easy. The Child and Family Services Act makes no provision to appeal an adoption order except within the first 30 days after it has been made.
"The best interests and stability of a child require that the adoption order is not subject to further review, even if unjust and based on a clearly erroneous factual premise," states a paper prepared for the inquiry by Queen's law professor Nicholas Bala and McGill social work professor Nico Trocme.
"However, if it is established that a child was removed from parental custody due to an erroneous belief that the parent was responsible for the death of a sibling, it may well be in the best interests of the children to have at least some contact with the parents, depending on their age and wishes. At the very least, the adoptive parents, and through them the children, should be informed of the new circumstances," they continue.
Sherret says Christopher doesn't know why she gave him up for adoption.
He only recently learned he has a 2-year-old sister. This is Sherret's third child, the only one with her. Christopher's adoptive mother was afraid to tell him about his new sibling, lest it raise questions about why his biological mother could keep one child and not another, Sherret says.
While she dreams about the day they'll see each other again, she has nightmares about the last time she saw him. It was in a playroom at the Northumberland Children's Aid Society. Sherret knew she wouldn't see her son, then 5, again until he was 18. She kept her eye on the clock, savouring her last three hours with him.
Mom and child played for the first 2 1/2 hours, but as the end of their visit neared, Sherret pulled the lad onto her lap for a serious chat. "I told him that mommy still has some problems to deal with and that he couldn't come home," Sherret recounts.
The lad reacted angrily. "He told me I lied," she says, explaining how Christopher reminded her of a previous promise that he could come home. "He wanted to come home and he wanted to know if he could keep Whisper, his kitty."
In his letters to her now, Christopher asks if she still has Whisper. She does.
Sherret wept during her final minutes with her son. Her tears continued to flow in the car on her way home. She had lost her two sons now and was on her way to prison.
The next day, she was sent to the Vanier Centre for Women in Brampton, where other inmates called her a "baby killer." She ignored their taunts until one day it became too much. She overheard one women ask another: "Do you know how Sherry killed her baby?"
"I remember just coming around the corner and starting to beat on her," recalls Sherret, who was moved to segregation and then to another detention centre.
As devastating as it was to be blamed, jailed and taunted for Joshua's death, those experiences paled in comparison to losing custody of Christopher, she says. "Having a child taken from you is like having your life taken from you. I just didn't want to be around. I didn't want to live. But then I sat there and thought, I've got to go on because I know I'll get a chance to see him at some point."
Despite the hell a biological parent like Sherret has gone though, returning custody of a child may not be the best idea, experts warn.
"While the unmerited separation of children from their parents is a great injustice, it does not necessarily follow that returning these children to the care of their parents is in their best interest," Bala and Trocme write in their report for the inquiry.
"In particular, if children are returned to their parents' custody after several years in a stable foster home, they may well be traumatized by the stress of separation from their foster families and the experience of returning to a now unfamiliar environment," they continue.
Still, Sherret's lawyer, James Lockyer, hopes adoptive parents would be open to allowing some sort of contact between the birth parents and the children.
"What you would hope is that the adoptive parent might have the foresight, strength, courage to consider allowing the children to recontact the parent. But that's a pretty tall order," he admits, likening the struggle to Bertolt Brecht's The Caucasian Chalk Circle, a play about a literal tug-of-war over a child.
Lockyer doesn't blame children's aid societies in these cases. They were just sadly relying on bad information from sources like Smith, he notes. "Wrongful convictions have consequences way beyond someone being in jail for something they didn't do."
less than three years ago, Sherret discovered she was pregnant again. Her first reaction was panic. Her name was still on the province's child-abuse registry and she faced the prospect of having her third child taken from her, too.
Her reaction wasn't so unusual. In another case in which Smith was involved, a couple decided to have an abortion after learning of an unexpected pregnancy. Angela Veno and Anthony Kporwodu had their toddler son seized by children's aid after they were charged with the 1998 death of their infant daughter. They were told any new child would also be seized. Sherret was duty bound to report her pregnancy to CAS, which she did. This is how she discovered serious questions were being raised about Smith's work. A CAS official told her the doctor was being investigated.
Sherret contacted the Association in Defence of the Wrongly Convicted and Lockyer, who would assist her in trying to clear her name. He would also help her in her efforts to keep her third child. Initially, the CAS wanted to remove Sherret from her home when the baby was born, leaving the infant to reside with its father. Eventually they settled for a supervisory order, meaning Sherret could never be alone with the baby.
The child was born on Sept. 29, 2005.
For the first 11 months of the child's life, father Rob couldn't even go to the store without waking the baby and taking her with him.
But last April, a provincial court ruled that the supervision order be dropped. By this time, two outside experts had confirmed there was no foul play involved involved in Joshua's death.
"I believe I lost a special 11 months with her. It was an 11 months I could not be alone with my beautiful girl," Sherret says. "I had to go though hell to stay in her life."
Sherret has been diagnosed with major, chronic depression and post-traumatic stress disorder. "I'm exhausted physically, mentally."
Her children keep her going.
"I'm mad, but I have to live every day for my daughter and (Christopher), not just me," she says.
While she dreams about the day she'll see Christopher again, she has no illusions. "He's grown up with his family pretty much most of his life and it would just be wrong to take him away from them. I just want some kind of a relationship with him."
She's kept a lot of Christopher's old toys. She watches her daughter play with them, remembering her son doing the same.
"I would be so happy if I could see them play together," she says."
Harold Levy...hlevy15@gmail.com;
This perversion of state power was evident in a post which ran on Monday, March 17, 2008, under the heading, "Part One: Collateral Damage: Dr. Charles Smith's Forgotten Victims;"
The post, reproduced a moving article by my Toronto Star Colleague Theresa Boyle, was topped by the following quote;
"THE BOY, CHRISTOPHER (NOT HIS REAL NAME), IS ONE OF AT LEAST 17 CHILDREN WHOSE LIVES WERE THROWN INTO CHAOS AFTER THE DEATH OF A SIBLING. IN EACH CASE, DISGRACED PATHOLOGIST DR. CHARLES SMITH PERFORMED AN AUTOPSY OR OFFERED A CONSULTING OPINION ON THE DEATHS. BAD ENOUGH THEY HAD LOST A SISTER OR A BROTHER. BUT SMITH'S MISTAKES HELPED IMPLICATE THEIR PARENTS AND RESULTED IN THESE CHILDREN BEING REMOVED FROM THEIR HOMES BY CHILDREN'S AID SOCIETIES."
THERESA BOYLE: TORONTO STAR;
"The "collateral damage" caused by Dr. Charles Smith has been vividly captured by Toronto Star reporter Theresa Boyle, in a story, published on March 9, 2008, that focuses on "The 'forgotten victims' torn from their homes," the post began.
"The disturbing story is accompanied by a photograph of Sherry Sherret in her home, holding the baby album of the son taken away from her for adoption," it continued;
"Boyle's story makes the point that much of the damage caused by Smith - and those who failed to rein him in - will linger for years to come.
"July 2012. This date won't come soon enough for Sherry Sherret," Boyle's story begins;
"It's when her first born will turn 18. And it's when the Belleville mother will finally be reunited with the son who was put up for adoption when he was only 5," it continues.
"The boy, Christopher (not his real name), is one of at least 17 children whose lives were thrown into chaos after the death of a sibling. In each case, disgraced pathologist Dr. Charles Smith performed an autopsy or offered a consulting opinion on the deaths. Bad enough they had lost a sister or a brother. But Smith's mistakes helped implicate their parents and resulted in these children being removed from their homes by children's aid societies.
At least three children, including Christopher, were adopted out to other families. There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.
The remaining children were sent to live with relatives or foster families for as long as two years.These children are from the 20 botched death investigations that have been explored at the ongoing Inquiry into Pediatric Forensic Pathology. A panel of renowned forensic pathologists determined Smith erred in all these cases.
While attention has largely been focused on potentially wrongful convictions, these children have been the "forgotten victims" of his errors, says Julie Kirkpatrick, lawyer for one family.
The upheaval they faced is "among the worst consequences of Smith's mistakes," she says, adding they are no less victims of miscarriages of justice.
One of the many issues explored at the inquiry is that of child protection. Child advocates are putting forth an array of recommendations on behalf of the displaced children, including possible reconciliation of broken-up families.
Twice a year, Sherret, 32, gets letters and pictures from Christopher. She stares at the photos intently, looking for signs of her son's growth. From a picture he sent this past Christmas, she can see his face had filled out some. He looks more like his dad, her ex, she notes. But she can see her own DNA in his eyes.
"He's a gorgeous young man. He will be 14 years old in July. I keep thinking to myself, four more years," she says.
In his letters to her, he addresses her as "Dear Sherry."
"That hurts," she says. "But it's understandable."
She signs her letters back, "Love, Mommy Sherry."
Sherret lost two sons in 1996. That January, she discovered 4-month-old Joshua dead in his playpen. Smith said the child was suffocated, as evidenced by marks on his neck. The pathologist also said the boy had a fractured skull. Sherret was charged with first-degree murder.
Years later, when Smith's work came under scrutiny, Joshua's body was exhumed. It was revealed his skull wasn't fractured and the marks on his neck were actually created by Smith, himself, during the autopsy. Experts who reviewed the case said Joshua had accidentally asphyxiated in an unsafe sleep environment. He had slept in a playpen, under a sleeping bag, comforter and blankets.
Child-welfare workers removed Christopher, then 18 months, from her custody. He was first placed with his grandparents and then with a foster family.
In January 1999, Sherret was convicted on a reduced charge of infanticide. The following June she was sentenced to a year in jail and two years probation. Meantime, Sherret learned children's aid was putting forth an application to the courts to have Christopher move from foster care to adoption. The foster family told Sherret they would be willing to make him a permanent part of their family.
Evoking the parable of King Solomon threatening to split a baby to determine its rightful mother, Sherret made the difficult decision to let this family adopt her son, fearing he could otherwise bounce around different homes. The adoption agreement included the exchange of letters, annual phone calls from Christopher's foster mother and plans for a reunion when he turns 18.
Lawyer Suzan Fraser has been representing Defence for Children International at the inquiry. The group aims to protect the rights of youngsters and is going to bat for the 17 displaced children.
"The big problem is that there is no process for dealing with apprehension or adoption orders made on the basis of flawed pathology evidence," Fraser remarks.
She says the damage inflicted on the affected children is immeasurable. "Imagine the anger and the sorrow to learn that you had been wrongfully taken from your mother or father. Imagine the taunts of the other children in foster care teasing you because your mother killed your sister.
"Imagine the horror of losing your sibling and then your mother, when your mother was actually protective rather than the killer everyone thought she was? Imagine having no power to fix it."
Fraser is fearful there may be even more children out there who were uprooted from their homes because of errors Smith made in child-death investigations. Undoing Smith's mistakes isn't so easy. The Child and Family Services Act makes no provision to appeal an adoption order except within the first 30 days after it has been made.
"The best interests and stability of a child require that the adoption order is not subject to further review, even if unjust and based on a clearly erroneous factual premise," states a paper prepared for the inquiry by Queen's law professor Nicholas Bala and McGill social work professor Nico Trocme.
"However, if it is established that a child was removed from parental custody due to an erroneous belief that the parent was responsible for the death of a sibling, it may well be in the best interests of the children to have at least some contact with the parents, depending on their age and wishes. At the very least, the adoptive parents, and through them the children, should be informed of the new circumstances," they continue.
Sherret says Christopher doesn't know why she gave him up for adoption.
He only recently learned he has a 2-year-old sister. This is Sherret's third child, the only one with her. Christopher's adoptive mother was afraid to tell him about his new sibling, lest it raise questions about why his biological mother could keep one child and not another, Sherret says.
While she dreams about the day they'll see each other again, she has nightmares about the last time she saw him. It was in a playroom at the Northumberland Children's Aid Society. Sherret knew she wouldn't see her son, then 5, again until he was 18. She kept her eye on the clock, savouring her last three hours with him.
Mom and child played for the first 2 1/2 hours, but as the end of their visit neared, Sherret pulled the lad onto her lap for a serious chat. "I told him that mommy still has some problems to deal with and that he couldn't come home," Sherret recounts.
The lad reacted angrily. "He told me I lied," she says, explaining how Christopher reminded her of a previous promise that he could come home. "He wanted to come home and he wanted to know if he could keep Whisper, his kitty."
In his letters to her now, Christopher asks if she still has Whisper. She does.
Sherret wept during her final minutes with her son. Her tears continued to flow in the car on her way home. She had lost her two sons now and was on her way to prison.
The next day, she was sent to the Vanier Centre for Women in Brampton, where other inmates called her a "baby killer." She ignored their taunts until one day it became too much. She overheard one women ask another: "Do you know how Sherry killed her baby?"
"I remember just coming around the corner and starting to beat on her," recalls Sherret, who was moved to segregation and then to another detention centre.
As devastating as it was to be blamed, jailed and taunted for Joshua's death, those experiences paled in comparison to losing custody of Christopher, she says. "Having a child taken from you is like having your life taken from you. I just didn't want to be around. I didn't want to live. But then I sat there and thought, I've got to go on because I know I'll get a chance to see him at some point."
Despite the hell a biological parent like Sherret has gone though, returning custody of a child may not be the best idea, experts warn.
"While the unmerited separation of children from their parents is a great injustice, it does not necessarily follow that returning these children to the care of their parents is in their best interest," Bala and Trocme write in their report for the inquiry.
"In particular, if children are returned to their parents' custody after several years in a stable foster home, they may well be traumatized by the stress of separation from their foster families and the experience of returning to a now unfamiliar environment," they continue.
Still, Sherret's lawyer, James Lockyer, hopes adoptive parents would be open to allowing some sort of contact between the birth parents and the children.
"What you would hope is that the adoptive parent might have the foresight, strength, courage to consider allowing the children to recontact the parent. But that's a pretty tall order," he admits, likening the struggle to Bertolt Brecht's The Caucasian Chalk Circle, a play about a literal tug-of-war over a child.
Lockyer doesn't blame children's aid societies in these cases. They were just sadly relying on bad information from sources like Smith, he notes. "Wrongful convictions have consequences way beyond someone being in jail for something they didn't do."
less than three years ago, Sherret discovered she was pregnant again. Her first reaction was panic. Her name was still on the province's child-abuse registry and she faced the prospect of having her third child taken from her, too.
Her reaction wasn't so unusual. In another case in which Smith was involved, a couple decided to have an abortion after learning of an unexpected pregnancy. Angela Veno and Anthony Kporwodu had their toddler son seized by children's aid after they were charged with the 1998 death of their infant daughter. They were told any new child would also be seized. Sherret was duty bound to report her pregnancy to CAS, which she did. This is how she discovered serious questions were being raised about Smith's work. A CAS official told her the doctor was being investigated.
Sherret contacted the Association in Defence of the Wrongly Convicted and Lockyer, who would assist her in trying to clear her name. He would also help her in her efforts to keep her third child. Initially, the CAS wanted to remove Sherret from her home when the baby was born, leaving the infant to reside with its father. Eventually they settled for a supervisory order, meaning Sherret could never be alone with the baby.
The child was born on Sept. 29, 2005.
For the first 11 months of the child's life, father Rob couldn't even go to the store without waking the baby and taking her with him.
But last April, a provincial court ruled that the supervision order be dropped. By this time, two outside experts had confirmed there was no foul play involved involved in Joshua's death.
"I believe I lost a special 11 months with her. It was an 11 months I could not be alone with my beautiful girl," Sherret says. "I had to go though hell to stay in her life."
Sherret has been diagnosed with major, chronic depression and post-traumatic stress disorder. "I'm exhausted physically, mentally."
Her children keep her going.
"I'm mad, but I have to live every day for my daughter and (Christopher), not just me," she says.
While she dreams about the day she'll see Christopher again, she has no illusions. "He's grown up with his family pretty much most of his life and it would just be wrong to take him away from them. I just want some kind of a relationship with him."
She's kept a lot of Christopher's old toys. She watches her daughter play with them, remembering her son doing the same.
"I would be so happy if I could see them play together," she says."
Harold Levy...hlevy15@gmail.com;
COUNTDOWN: 2 DAYS TO GO; ACCOUNTABILITY; HOSPITAL FOR SICK CHILDREN;
Here is an old-fashioned rant.
When Justice Goudge releases his report on Wednesday all eyes will be on the degree to which he holds the Hospital for Sick Children to account for failing to reign him in - in spite of glaring evidence of his incompetence and disarray;
To me the ultimate symbol of the Hospital's failure to protect the public from Dr. Smith - including its own patients - was Dr. Smith's notorious office.
Although this office - with its chaos and gruesome contents - was in full of Dr. Smith's colleagues and Hospital administrators, - the Hospital, his employer, stood by as if it was some kind of sacred shrine, always looking the other way.
The Hospital for Sick Children is forever tainted by its SCAN team's notorious damage control efforts in the Amber case, and the manner in which the team allowed ideology to get in the way of science.
In the view of this Blogster, the Hospital is also tainted by its failure to pass information on Smith's sub-standard work relating to the Hospital's young patients to the Chief Coroner's Office - and the College of Physicians and Surgeons for disciplinary action.
Justice Goudge has heard evidence that the SCAN-team has been revamped and is a far different entity than the one that buttressed Dr. Charles Smith and played a role in several notorious miscarriages of justice.
However, in this Blogster's view, the Hospital has lost its moral authority to continue housing the Ontario Forensic Pediatric Pathology Unit - and the Unit should be moved as quickly as possible to the Chief Coroner's office where all adults autopsies involving homicides and suspicious deaths are performed.
End of rant!
Dr. Ernest Cutz, a very senior pathologist at the Hospital for Sick Children, made a very compelling case for severing the Unit from the Hospital in much more measured language in his written submissions to the Hospital.
I focused on Dr. Cutz's submissions in a post which ran on Wednesday May 7, 2008, under the heading: "Part One: Dr. Cutz's Recommendations To Goudge Inquiry; Remove Ontario Forensic Pediatric Pathology Unit From Sick Kids;"
The post was topped by the following quotes:
"IN SUMMARY, IT IS MY VIEW THAT THE DIVISION OF PATHOLOGY AT THE HOSPITAL, AND OTHER PEDIATRIC PATHOLOGY SERVICES AT OTHER LARGE ACADEMIC CENTERS, ARE BEST SUITED TO PROVIDE HIGH QUALITY PEDIATRIC PATHOLOGY SERVICES FOCUSING ON ACADEMIC ASPECTS THAT INCLUDE THE DIAGNOSIS AND INVESTIGATION OF PEDIATRIC DISEASES.
HOWEVER, TO ENSURE THAT INFANTS AND CHILDREN ARE PROTECTED FROM HARM AND ABUSE, THE REMAINING TEN PER CENT OF CASES THAT INCLUDE CLEAR HOMICIDES OR CRIMINALLY SUSPICIOUS DEATHS ARE BEST HANDLED BY QUALIFIED FORENSIC PATHOLOGISTS WHOSE TRAINING AND EXPERIENCE LIES PRIMARILY IN THE EXAMINATION OF VIOLENT DEATH, HOMICIDES AND SUCH.
THE BEST SETTING TO PERFORM THESE AUTOPSIES (WHICH TOTAL APPROXIMATELY 10-15 CASES PER YEAR) IS AT THE CHIEF CORONER'S OFFICE WHICH HAS THE QUALIFIED STAFF AND REQUIRED FACILITIES TO CONDUCT THE NECESSARY INVESTIGATIONS."
DR. ERNEST CUTZ: RECOMMENDATIONS TO GOUDGE INQUIRY;
-------------------------------------------------------------------------------
"Dr. Ernest Cutz, a distinguished pathologist at the Hospital for Sick Children in Toronto, has drafted his personal recommendations for the Goudge Inquiry, which have been posted on the Inquiry's Web-site," the post began.
"Dr. Cutz's views are well worth considering because he has been at the Hospital for several decades and is steeped in all aspects of the Pathology Department -including the Ontario Forensic Pediatric Pathology Unit," it continued.
"This Blog is therefore publishing Dr. Cutz's submissions - beginning with his recommendation that the hospital should cease performing forensic autopsies - and focus, rather, on what he calls, "medical/natural death cases."
"I have reviewed the “List of Systemic Issues” currently available on the website of the Inquiry into Pediatric Forensic Pathology in Ontario," this portion of Dr. Cutz's submissions begins.
"The following document reflects my own personal views and comments on select questions posed in that list" it continues;
"My comments reflect over 35 years of experience in Pediatric Pathology, including pediatric forensic pathology.
I. Institutional Considerations: Should Ontario have an institutional setting dedicated to pediatric forensic pathology, or should pediatric services be delivered within a forensic pathology institutional setting?
In essence, it is my view that the pediatric pathology work performed in Ontario should not be all be performed by the same institution.
Rather, pediatric autopsy work should be divided between the Hospital for Sick Children (the Hospital) and the Office of the Chief Coroner of Ontario. (The Chief Coroner's Office);
I say this for the following reasons:
a) Approximately 90 per cent of pediatric cases investigated under the Coroner’s Warrant result from death due to natural causes or pediatric disease.
These cases are thus not “forensic” by nature.
It is appropriate that pediatric pathologists from the Hospital for Sick Children perform the autopsies in these cases.
It is my view, however, that the Hospital should only perform autopsies on these “medical/natural death cases”.
Therefore, there would no longer be a need for a Pediatric Forensic Pathology Unit (the Unit) at the Hospital;
Furthermore, it is my view that there is an incompatibility between the principal mission of the Hospital as being dedicated to academic pursuits and research and the Chief Coroner's Office which excludes research;
I believe that the institutional link between the Hospital and the Chief Coroner's Office should be discontinued.
b) In summary, it is my view that the Division of Pathology at the Hospital, and other Pediatric Pathology services at other large academic centers, are best suited to provide high quality pediatric pathology services focusing on academic aspects that include the diagnosis and investigation of pediatric diseases.
c) However, to ensure that infants and children are protected from harm and abuse, the remaining ten per cent of cases that include clear homicides or criminally suspicious deaths are best handled by qualified forensic pathologists whose training and experience lies primarily in the examination of violent death, homicides and such.
The best setting to perform these autopsies (which total approximately 10-15 cases per year) is at the Chief Coroner's Office which has the qualified staff and required facilities to conduct the necessary investigations.
d) In terms of the pediatric disease cases, the best protection against wrongful accusations in pediatric cases is the provision of a correct diagnosis of natural disease based on a solid scientific foundation.
The diagnosis of pediatric disease in the 21st century is based on sophisticated methods of cellular and molecular biology (i.e. testing for genetic or metabolic disorders).
This testing requires special expertise and facilities, all of which are available at the Hospital, but are not available at the Chief Coroner's Office;
e) Since research and education into pediatric disease is outside the mandate of the Chief Coroner's Office, the responsibility and the provision of resources for this essentially patient-related activity should be assumed by the Ministry of Health and Long term Care.
10. What is the most cost efficient way of delivering quality pediatric forensic pathology services? For example, what are the advantages and disadvantages of using staff doctors or fee-for-service doctors?
a) Staff Pathologists based at leading Pediatric Academic Institutions, such as the Hospital for Sick Children can deliver the most cost-efficient and highest quality pediatric pathology services.
All staff are qualified and experienced Pediatric Pathologists who are also cross-appointed to the University of Toronto and thus participate fully in research and educational activities.
b) The combination of high-level diagnostic skills in diagnosing pediatric disease, research into disease pathogenesis, and education ensures that the work of these pathologists is high quality and also serves to educate the next generation of pediatric pathologists, thereby addressing the shortage of professionals in this specialty."
This Blogster has addressed the issue as to whether the Ontario Forensic Pediatric Pathology Unit should remain at the Hospital for Sick Children in an earlier post entitled, "Up-Date: Expert Evidence; Part Three: Research Questions Whether Forensic Unit Once Headed By Smith Should Remain At Sick Kids," published on March 8, 2008;
For the benefit of those readers who have not read it, that post ran as follows:
"IN ADDITION TO AN ABSENCE OF MEANINGFUL OVERSIGHT, THE INTEGRATION OF THE (UNIT) WITHIN THE PEDIATRIC PATHOLOGY UNIT AT THE HOSPITAL FOR SICK CHILDREN(INCLUDING INTERACTION WITH THE SUSPECTED CHILD ABUSE AND NEGLECT (SCAN) TEAM) MAY HAVE CREATED A PARTICULAR KIND OF INSTITUTIONAL CULTURE THAT CONTRIBUTED TO THE “THINK DIRTY” ETHOS, DISCUSSED IN OTHER RESEARCH CONDUCTED FOR THIS INQUIRY,"
PROFESSOR LORNE SOSSIN IN RESEARCH PAPER PREPARED FOR THE GOUDGE INQUIRY;
Ontario's Pediatric Forensic Pathology Unit, once headed by Dr. Charles Smith, risks being tainted by its proximity to the Hospital for Sick Children's Sick Children's Suspected Child Abuse and Neglect (SCAN) team, a researcher suggests.
University of Toronto law professor Lorne Sossin, recommends that Ontario should rethink retention of the Unit at the (Hospital) in a paper commissioned by the Goudge Inquiry entitled, "oversight and accountability." (The paper is posted on the Inquiry's Web-site;)
"In addition to an absence of meaningful oversight, the integration of the (Unit) within the pediatric pathology unit at the Hospital for Sick Children(including interaction with the Suspected Child Abuse and Neglect (SCAN) team) may have created a particular kind of institutional culture that contributed to the “think dirty” ethos, discussed in other research conducted for this Inquiry," writes Sossin;
"While there may have been good reasons to establish the (Unit) and locate it in (the Hospital) the viability and desirability of this arrangement continuing should be the subject of further study."
This Bloggist focused this issue in a previous posting entitled "A glimpse of understanding: Part Three; A dangerous mix: Dr Charles Smith and the Hospital for Sick Children SCAN team." (Jan, 2, 2008;"
"In two recent recent postings I have linked Dr. Charles Smith's ability to have such a disastrous effect on Ontario's criminal justice system directly to the decision to appoint him to head the new Ontario Forensic Pediatric Pathology Unit which would be located at the Hospital for Sick Children in Ontario. (A glimmer of understanding; Parts One and Two);" the Blog began.
"One of the unfortunate by-products of this decision is that Smith would have increased influence with the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) Program," it continued.
"Smith, as director of the new prestigious new unit, and the hospital's SCAN unit would prove to be a dangerous mix.
Hospital literature described the SCAN Program as "a hospital-based, multidisciplinary team that offers care, support, and assessment to children and adolescents who may have been abused."
However, as a criminal lawyer, and Editor of the Criminal Lawyers Association Newsletter, In the 1980's I began hearing stories which indicated that the team had a propensity for turning tragic but innocent situations into criminal assaults.
In 1985, I learned about a case which confirmed my worse fears about the program - and wrote bout the case in the Toronto Star, under a headline that read: "They were caring parents, not child abusers"
"Sometimes, people acting with the best of intentions end up achieving the worst possible result," the story began.
"Such was the case in a recent dispute involving a northern Ontario couple and the Catholic Children's Aid Society of Metro Toronto.
The couple were plunged into a nightmare in which they were branded as child abusers of their then one-year-old son and had both of their children taken from them.
In fact, as later became clear when the case landed in court, their son, Tyler,
suffered from a rare bone disease and hadn't been abused at all.
After it became evident that Tyler wasn't developing properly and x-rays had revealed some bone lesions, his parents, whose identity cannot be published, asked their family physician in Elliot Lake to refer the child to Toronto's Hospital for Sick Children for examination by specialists.
But they returned home disappointed, early in January, 1985, as the hospital was unable to pinpoint the disease.
They were unaware that the head of the radiology department had concluded
that the x-rays "were suggestive of child abuse."
They were also unaware that a hospital child abuse team had met in their absence and had asked the medical staff to have the couple return to the hospital with both of their children.
On their arrival, officials of the Metro Children's Aid Society were waiting to "apprehend" both children under a law that permits children at "substantial risk" to be taken from their parents, pending a court hearing.
Bewildered, they returned alone to Elliot Lake to discover that their nightmare had only just begun.
The radiologist's diagnosis that the x-rays were "suggestive" of child abuse had mushroomed into the conclusion by a member of the abuse team that there was "a clear possibility of child abuse."
And the Metro Catholic Children's Aid Society, which had taken over the case, was planning to place Tyler in a foster home and the other child with his natural father.
This move was blocked following the intervention of a lawyer and a private social worker retained by the parents. That led to the children's placement with grandparents.
But the parents couldn't persuade the society to take further steps to find out what was wrong with Tyler, even though a renowned bone disease expert in California had concluded, after viewing the x-rays from the Hospital for Sick Children, that the
lesions were more consistent with bone disease than with fracture.
The expert had suggested to the hospital that certain tests should be carried out, but the hospital declined to perform these particular tests.
The parents were then forced to go to court on April, 22, 1986, to free Tyler so that he could be taken to California, partially at their own expense, and with the help of OHIP, for testing and diagnosis.
After a four-day hearing contested by the society, Family Court Judge Peter Nasmith granted the parents' application and made the decision that led to the proof that Tyler was a sick child, not an abused one, and that the parents were caring human
beings and not child abusers.
The California doctor confirmed his original diagnosis, and after doctors at an Ottawa hospital provided additional confirmation, the society finally withdrew the application to make the boy a crown ward.
What went wrong?
The key is provided by Judge Nasmith's comments at the hearing, where he took the unusual step of telling the society to pay costs to the parents for the legal proceedings.
Having concluded that, "the medical evidence was inconclusive and any evidence of possible abuse was of a very unreliable nature," and noting the difficulties the society faced because of the number of agencies involved and the fact that it was
"obviously influenced (perhaps controlled) by the child abuse team at the Hospital for Sick Children," the judge said: "The fact remains that there was embarrassingly little effort to follow up on what had become a devastating allegation . . . I
think the position (the society) took was unreasonable and even arbitrary."
As to the heart of the problem, Judge Nasmith said: "No doubt the real fly in the ointment here is the child abuse team at the Hospital for Sick Children as they moved from a position of possible abuse to a diagnosis of abuse. This was a surprising stance for them to take, and I think it underlines the need for
a protection agency receiving reports under (child) protection legislation and for courts in these cases to continue to scrutinize the zeal of the well-meaning people who are so understandably devoted to fighting the scourge that is child abuse. This zeal has created a subtle dynamic that can somehow convert a suspicion of child abuse into a presumption of child abuse."
One can sympathize with children's aid societies because of the heavy pressures they face and their dilemma when confronted by complex medical information provided by experts.
But Nasmith's ruling spells out the high standards to be expected of them, and of the experts involved in the medical and social investigation of child abuse, because of the awesome legal and persuasive powers that they possess.
If Tyler's parents hadn't had sufficient commitment and ability - and the support of OHIP, the Ontario Legal Aid Plan, and a dedicated lawyer - what would the situation be now? Sound familiar?
The dangerous mix between Dr. Charles Smith and the Hospital for Sick Children SCAN team was all too apparent in a case before the Inquiry which I have been referring to as "the Timmin's case" in previous postings.
The case is the subject of a court decision released by Provincial Court Judge Patrick Dunn on July 25, 1991, the year the Ontario Forensic Pediatric Pathology Unit was formed and several years after the Nasmith decision. (Dr. Smith had been at the hospital since 1981);
As Dunn noted: "I am not the only person who believed (the babysitter). The Community believed her too until the Crown's shaking theory surfaced. When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts (Dr. Smith and the Hospital for Sick Children SCAN team) it is riddled with reasonable doubts."Why would the babysitter shake Amber to death?
"Dr. Smith suggested by way of provocation that perhaps Amber was a "bear", like his son, when she woke up," Dunn wrote in his powerful 24-page judgment which resonates to this very day.
"In other words, that the child would be provocative by her irritable manner. This is not true on the facts and it was unfair to suggest the possibility because there was no basis for it."
(Dunn also ruled that, "I cannot find that (The Hospital for Sick Children) properly considered the relationship between the Babysitter and Amber or Amber's gentle and non-provocative disposition," as he blasted both Smith and the SCAN team for failing to obtain "a complete and accurate psycho-social history" - even though they new "the importance" of having it.")
I don't propose to dwell on the details case as I have previously addressed it in several postings on this Blog.
Suffice it to point out for now that Dunn expressed, "serious concerns about the manner in which certain physicians at the Hospital for Sick Children ... formulated their diagnosis." (Dunn stressed that wherever the evidence of the SCAN team members clashed with the defence witnesses, "I prefer to accept the evidence of the defence experts."
Dunn stressed that there were flaws in the Hospital for Sick Children approach - "and hence their opinion about shaking should not be given great weight.
"I am not talking now about whether shaking exists or whether it or some other mechanism killed Amber," he explained."
"I mean that the fact gathering process, the communication procedures, and the documentation of the Hospital for Sick Children doctors, involved in this case are such that I am led to question the conclusion they drew, based on the facts as these erstwhile and well-meaning doctors understood them."
Similar comments were made about Dr. Charles Smith's work by the independent reviewers who studied so many of his cases.
A very dangerous mix indeed."
Sossin makes a compelling argument for removing the Unit from the Hospital - which in this Blogster's view has not demonstrated over many years that it deserves the public trust.
This is yet another tough bullet for Commissioner Goudge to bite."
Harold Levy...hlevy15@gmail.com
When Justice Goudge releases his report on Wednesday all eyes will be on the degree to which he holds the Hospital for Sick Children to account for failing to reign him in - in spite of glaring evidence of his incompetence and disarray;
To me the ultimate symbol of the Hospital's failure to protect the public from Dr. Smith - including its own patients - was Dr. Smith's notorious office.
Although this office - with its chaos and gruesome contents - was in full of Dr. Smith's colleagues and Hospital administrators, - the Hospital, his employer, stood by as if it was some kind of sacred shrine, always looking the other way.
The Hospital for Sick Children is forever tainted by its SCAN team's notorious damage control efforts in the Amber case, and the manner in which the team allowed ideology to get in the way of science.
In the view of this Blogster, the Hospital is also tainted by its failure to pass information on Smith's sub-standard work relating to the Hospital's young patients to the Chief Coroner's Office - and the College of Physicians and Surgeons for disciplinary action.
Justice Goudge has heard evidence that the SCAN-team has been revamped and is a far different entity than the one that buttressed Dr. Charles Smith and played a role in several notorious miscarriages of justice.
However, in this Blogster's view, the Hospital has lost its moral authority to continue housing the Ontario Forensic Pediatric Pathology Unit - and the Unit should be moved as quickly as possible to the Chief Coroner's office where all adults autopsies involving homicides and suspicious deaths are performed.
End of rant!
Dr. Ernest Cutz, a very senior pathologist at the Hospital for Sick Children, made a very compelling case for severing the Unit from the Hospital in much more measured language in his written submissions to the Hospital.
I focused on Dr. Cutz's submissions in a post which ran on Wednesday May 7, 2008, under the heading: "Part One: Dr. Cutz's Recommendations To Goudge Inquiry; Remove Ontario Forensic Pediatric Pathology Unit From Sick Kids;"
The post was topped by the following quotes:
"IN SUMMARY, IT IS MY VIEW THAT THE DIVISION OF PATHOLOGY AT THE HOSPITAL, AND OTHER PEDIATRIC PATHOLOGY SERVICES AT OTHER LARGE ACADEMIC CENTERS, ARE BEST SUITED TO PROVIDE HIGH QUALITY PEDIATRIC PATHOLOGY SERVICES FOCUSING ON ACADEMIC ASPECTS THAT INCLUDE THE DIAGNOSIS AND INVESTIGATION OF PEDIATRIC DISEASES.
HOWEVER, TO ENSURE THAT INFANTS AND CHILDREN ARE PROTECTED FROM HARM AND ABUSE, THE REMAINING TEN PER CENT OF CASES THAT INCLUDE CLEAR HOMICIDES OR CRIMINALLY SUSPICIOUS DEATHS ARE BEST HANDLED BY QUALIFIED FORENSIC PATHOLOGISTS WHOSE TRAINING AND EXPERIENCE LIES PRIMARILY IN THE EXAMINATION OF VIOLENT DEATH, HOMICIDES AND SUCH.
THE BEST SETTING TO PERFORM THESE AUTOPSIES (WHICH TOTAL APPROXIMATELY 10-15 CASES PER YEAR) IS AT THE CHIEF CORONER'S OFFICE WHICH HAS THE QUALIFIED STAFF AND REQUIRED FACILITIES TO CONDUCT THE NECESSARY INVESTIGATIONS."
DR. ERNEST CUTZ: RECOMMENDATIONS TO GOUDGE INQUIRY;
-------------------------------------------------------------------------------
"Dr. Ernest Cutz, a distinguished pathologist at the Hospital for Sick Children in Toronto, has drafted his personal recommendations for the Goudge Inquiry, which have been posted on the Inquiry's Web-site," the post began.
"Dr. Cutz's views are well worth considering because he has been at the Hospital for several decades and is steeped in all aspects of the Pathology Department -including the Ontario Forensic Pediatric Pathology Unit," it continued.
"This Blog is therefore publishing Dr. Cutz's submissions - beginning with his recommendation that the hospital should cease performing forensic autopsies - and focus, rather, on what he calls, "medical/natural death cases."
"I have reviewed the “List of Systemic Issues” currently available on the website of the Inquiry into Pediatric Forensic Pathology in Ontario," this portion of Dr. Cutz's submissions begins.
"The following document reflects my own personal views and comments on select questions posed in that list" it continues;
"My comments reflect over 35 years of experience in Pediatric Pathology, including pediatric forensic pathology.
I. Institutional Considerations: Should Ontario have an institutional setting dedicated to pediatric forensic pathology, or should pediatric services be delivered within a forensic pathology institutional setting?
In essence, it is my view that the pediatric pathology work performed in Ontario should not be all be performed by the same institution.
Rather, pediatric autopsy work should be divided between the Hospital for Sick Children (the Hospital) and the Office of the Chief Coroner of Ontario. (The Chief Coroner's Office);
I say this for the following reasons:
a) Approximately 90 per cent of pediatric cases investigated under the Coroner’s Warrant result from death due to natural causes or pediatric disease.
These cases are thus not “forensic” by nature.
It is appropriate that pediatric pathologists from the Hospital for Sick Children perform the autopsies in these cases.
It is my view, however, that the Hospital should only perform autopsies on these “medical/natural death cases”.
Therefore, there would no longer be a need for a Pediatric Forensic Pathology Unit (the Unit) at the Hospital;
Furthermore, it is my view that there is an incompatibility between the principal mission of the Hospital as being dedicated to academic pursuits and research and the Chief Coroner's Office which excludes research;
I believe that the institutional link between the Hospital and the Chief Coroner's Office should be discontinued.
b) In summary, it is my view that the Division of Pathology at the Hospital, and other Pediatric Pathology services at other large academic centers, are best suited to provide high quality pediatric pathology services focusing on academic aspects that include the diagnosis and investigation of pediatric diseases.
c) However, to ensure that infants and children are protected from harm and abuse, the remaining ten per cent of cases that include clear homicides or criminally suspicious deaths are best handled by qualified forensic pathologists whose training and experience lies primarily in the examination of violent death, homicides and such.
The best setting to perform these autopsies (which total approximately 10-15 cases per year) is at the Chief Coroner's Office which has the qualified staff and required facilities to conduct the necessary investigations.
d) In terms of the pediatric disease cases, the best protection against wrongful accusations in pediatric cases is the provision of a correct diagnosis of natural disease based on a solid scientific foundation.
The diagnosis of pediatric disease in the 21st century is based on sophisticated methods of cellular and molecular biology (i.e. testing for genetic or metabolic disorders).
This testing requires special expertise and facilities, all of which are available at the Hospital, but are not available at the Chief Coroner's Office;
e) Since research and education into pediatric disease is outside the mandate of the Chief Coroner's Office, the responsibility and the provision of resources for this essentially patient-related activity should be assumed by the Ministry of Health and Long term Care.
10. What is the most cost efficient way of delivering quality pediatric forensic pathology services? For example, what are the advantages and disadvantages of using staff doctors or fee-for-service doctors?
a) Staff Pathologists based at leading Pediatric Academic Institutions, such as the Hospital for Sick Children can deliver the most cost-efficient and highest quality pediatric pathology services.
All staff are qualified and experienced Pediatric Pathologists who are also cross-appointed to the University of Toronto and thus participate fully in research and educational activities.
b) The combination of high-level diagnostic skills in diagnosing pediatric disease, research into disease pathogenesis, and education ensures that the work of these pathologists is high quality and also serves to educate the next generation of pediatric pathologists, thereby addressing the shortage of professionals in this specialty."
This Blogster has addressed the issue as to whether the Ontario Forensic Pediatric Pathology Unit should remain at the Hospital for Sick Children in an earlier post entitled, "Up-Date: Expert Evidence; Part Three: Research Questions Whether Forensic Unit Once Headed By Smith Should Remain At Sick Kids," published on March 8, 2008;
For the benefit of those readers who have not read it, that post ran as follows:
"IN ADDITION TO AN ABSENCE OF MEANINGFUL OVERSIGHT, THE INTEGRATION OF THE (UNIT) WITHIN THE PEDIATRIC PATHOLOGY UNIT AT THE HOSPITAL FOR SICK CHILDREN(INCLUDING INTERACTION WITH THE SUSPECTED CHILD ABUSE AND NEGLECT (SCAN) TEAM) MAY HAVE CREATED A PARTICULAR KIND OF INSTITUTIONAL CULTURE THAT CONTRIBUTED TO THE “THINK DIRTY” ETHOS, DISCUSSED IN OTHER RESEARCH CONDUCTED FOR THIS INQUIRY,"
PROFESSOR LORNE SOSSIN IN RESEARCH PAPER PREPARED FOR THE GOUDGE INQUIRY;
Ontario's Pediatric Forensic Pathology Unit, once headed by Dr. Charles Smith, risks being tainted by its proximity to the Hospital for Sick Children's Sick Children's Suspected Child Abuse and Neglect (SCAN) team, a researcher suggests.
University of Toronto law professor Lorne Sossin, recommends that Ontario should rethink retention of the Unit at the (Hospital) in a paper commissioned by the Goudge Inquiry entitled, "oversight and accountability." (The paper is posted on the Inquiry's Web-site;)
"In addition to an absence of meaningful oversight, the integration of the (Unit) within the pediatric pathology unit at the Hospital for Sick Children(including interaction with the Suspected Child Abuse and Neglect (SCAN) team) may have created a particular kind of institutional culture that contributed to the “think dirty” ethos, discussed in other research conducted for this Inquiry," writes Sossin;
"While there may have been good reasons to establish the (Unit) and locate it in (the Hospital) the viability and desirability of this arrangement continuing should be the subject of further study."
This Bloggist focused this issue in a previous posting entitled "A glimpse of understanding: Part Three; A dangerous mix: Dr Charles Smith and the Hospital for Sick Children SCAN team." (Jan, 2, 2008;"
"In two recent recent postings I have linked Dr. Charles Smith's ability to have such a disastrous effect on Ontario's criminal justice system directly to the decision to appoint him to head the new Ontario Forensic Pediatric Pathology Unit which would be located at the Hospital for Sick Children in Ontario. (A glimmer of understanding; Parts One and Two);" the Blog began.
"One of the unfortunate by-products of this decision is that Smith would have increased influence with the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) Program," it continued.
"Smith, as director of the new prestigious new unit, and the hospital's SCAN unit would prove to be a dangerous mix.
Hospital literature described the SCAN Program as "a hospital-based, multidisciplinary team that offers care, support, and assessment to children and adolescents who may have been abused."
However, as a criminal lawyer, and Editor of the Criminal Lawyers Association Newsletter, In the 1980's I began hearing stories which indicated that the team had a propensity for turning tragic but innocent situations into criminal assaults.
In 1985, I learned about a case which confirmed my worse fears about the program - and wrote bout the case in the Toronto Star, under a headline that read: "They were caring parents, not child abusers"
"Sometimes, people acting with the best of intentions end up achieving the worst possible result," the story began.
"Such was the case in a recent dispute involving a northern Ontario couple and the Catholic Children's Aid Society of Metro Toronto.
The couple were plunged into a nightmare in which they were branded as child abusers of their then one-year-old son and had both of their children taken from them.
In fact, as later became clear when the case landed in court, their son, Tyler,
suffered from a rare bone disease and hadn't been abused at all.
After it became evident that Tyler wasn't developing properly and x-rays had revealed some bone lesions, his parents, whose identity cannot be published, asked their family physician in Elliot Lake to refer the child to Toronto's Hospital for Sick Children for examination by specialists.
But they returned home disappointed, early in January, 1985, as the hospital was unable to pinpoint the disease.
They were unaware that the head of the radiology department had concluded
that the x-rays "were suggestive of child abuse."
They were also unaware that a hospital child abuse team had met in their absence and had asked the medical staff to have the couple return to the hospital with both of their children.
On their arrival, officials of the Metro Children's Aid Society were waiting to "apprehend" both children under a law that permits children at "substantial risk" to be taken from their parents, pending a court hearing.
Bewildered, they returned alone to Elliot Lake to discover that their nightmare had only just begun.
The radiologist's diagnosis that the x-rays were "suggestive" of child abuse had mushroomed into the conclusion by a member of the abuse team that there was "a clear possibility of child abuse."
And the Metro Catholic Children's Aid Society, which had taken over the case, was planning to place Tyler in a foster home and the other child with his natural father.
This move was blocked following the intervention of a lawyer and a private social worker retained by the parents. That led to the children's placement with grandparents.
But the parents couldn't persuade the society to take further steps to find out what was wrong with Tyler, even though a renowned bone disease expert in California had concluded, after viewing the x-rays from the Hospital for Sick Children, that the
lesions were more consistent with bone disease than with fracture.
The expert had suggested to the hospital that certain tests should be carried out, but the hospital declined to perform these particular tests.
The parents were then forced to go to court on April, 22, 1986, to free Tyler so that he could be taken to California, partially at their own expense, and with the help of OHIP, for testing and diagnosis.
After a four-day hearing contested by the society, Family Court Judge Peter Nasmith granted the parents' application and made the decision that led to the proof that Tyler was a sick child, not an abused one, and that the parents were caring human
beings and not child abusers.
The California doctor confirmed his original diagnosis, and after doctors at an Ottawa hospital provided additional confirmation, the society finally withdrew the application to make the boy a crown ward.
What went wrong?
The key is provided by Judge Nasmith's comments at the hearing, where he took the unusual step of telling the society to pay costs to the parents for the legal proceedings.
Having concluded that, "the medical evidence was inconclusive and any evidence of possible abuse was of a very unreliable nature," and noting the difficulties the society faced because of the number of agencies involved and the fact that it was
"obviously influenced (perhaps controlled) by the child abuse team at the Hospital for Sick Children," the judge said: "The fact remains that there was embarrassingly little effort to follow up on what had become a devastating allegation . . . I
think the position (the society) took was unreasonable and even arbitrary."
As to the heart of the problem, Judge Nasmith said: "No doubt the real fly in the ointment here is the child abuse team at the Hospital for Sick Children as they moved from a position of possible abuse to a diagnosis of abuse. This was a surprising stance for them to take, and I think it underlines the need for
a protection agency receiving reports under (child) protection legislation and for courts in these cases to continue to scrutinize the zeal of the well-meaning people who are so understandably devoted to fighting the scourge that is child abuse. This zeal has created a subtle dynamic that can somehow convert a suspicion of child abuse into a presumption of child abuse."
One can sympathize with children's aid societies because of the heavy pressures they face and their dilemma when confronted by complex medical information provided by experts.
But Nasmith's ruling spells out the high standards to be expected of them, and of the experts involved in the medical and social investigation of child abuse, because of the awesome legal and persuasive powers that they possess.
If Tyler's parents hadn't had sufficient commitment and ability - and the support of OHIP, the Ontario Legal Aid Plan, and a dedicated lawyer - what would the situation be now? Sound familiar?
The dangerous mix between Dr. Charles Smith and the Hospital for Sick Children SCAN team was all too apparent in a case before the Inquiry which I have been referring to as "the Timmin's case" in previous postings.
The case is the subject of a court decision released by Provincial Court Judge Patrick Dunn on July 25, 1991, the year the Ontario Forensic Pediatric Pathology Unit was formed and several years after the Nasmith decision. (Dr. Smith had been at the hospital since 1981);
As Dunn noted: "I am not the only person who believed (the babysitter). The Community believed her too until the Crown's shaking theory surfaced. When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts (Dr. Smith and the Hospital for Sick Children SCAN team) it is riddled with reasonable doubts."Why would the babysitter shake Amber to death?
"Dr. Smith suggested by way of provocation that perhaps Amber was a "bear", like his son, when she woke up," Dunn wrote in his powerful 24-page judgment which resonates to this very day.
"In other words, that the child would be provocative by her irritable manner. This is not true on the facts and it was unfair to suggest the possibility because there was no basis for it."
(Dunn also ruled that, "I cannot find that (The Hospital for Sick Children) properly considered the relationship between the Babysitter and Amber or Amber's gentle and non-provocative disposition," as he blasted both Smith and the SCAN team for failing to obtain "a complete and accurate psycho-social history" - even though they new "the importance" of having it.")
I don't propose to dwell on the details case as I have previously addressed it in several postings on this Blog.
Suffice it to point out for now that Dunn expressed, "serious concerns about the manner in which certain physicians at the Hospital for Sick Children ... formulated their diagnosis." (Dunn stressed that wherever the evidence of the SCAN team members clashed with the defence witnesses, "I prefer to accept the evidence of the defence experts."
Dunn stressed that there were flaws in the Hospital for Sick Children approach - "and hence their opinion about shaking should not be given great weight.
"I am not talking now about whether shaking exists or whether it or some other mechanism killed Amber," he explained."
"I mean that the fact gathering process, the communication procedures, and the documentation of the Hospital for Sick Children doctors, involved in this case are such that I am led to question the conclusion they drew, based on the facts as these erstwhile and well-meaning doctors understood them."
Similar comments were made about Dr. Charles Smith's work by the independent reviewers who studied so many of his cases.
A very dangerous mix indeed."
Sossin makes a compelling argument for removing the Unit from the Hospital - which in this Blogster's view has not demonstrated over many years that it deserves the public trust.
This is yet another tough bullet for Commissioner Goudge to bite."
Harold Levy...hlevy15@gmail.com
Sunday, September 28, 2008
COUNTDOWN: 3 THREE DAYS TO GO; MOVING LETTER RAISES IMPORTANT QUESTION: WHAT ABOUT THE CASES INVOLVING SMITH THAT OCCURRED BETWEEN 1981 AND 1991?
"I AM IN THE DARK AS TO WHETHER MY CASE, AS IT OCCURRED BEFORE THE TIME PERIOD THE GOUDGE INQUIRY WAS LOOKING IN TO, WILL EVER BE LOOKED AT. I BELIEVE THAT THERE NEEDS TO BE A MUCH BROADER LOOK AT HIS EARLIER CASES AND I ALSO BELIEVE THIS RESPONSIBILITY SHOULD NOT REST WITH THOSE WHO MAY HAVE BEEN WRONGFULLY CONVICTED BECAUSE OF HIS FAULTY EXPERT TESTIMONY."
-------------------------------------------------------------------------------
The following letter which appeared after a recent raises an extremely important point.
Since the Goudge Inquiry was confined to considering cases involving the work of Dr. Charles Smith between 1991 and 2001, when he ceased performing forensic autopsies, what is the status of those cases involving his work which occurred earlier?
"In 1988 I was convicted of manslaughter because of the crown testimony of Dr. Smith," the letter begins.
"It was his testimony alone which convicted me of an infant shaking death and I was sentenced to 4 years in prison," the letter continues.
"This was at the age of 25. My life utterly changed. I have carried this weight my whole adult life and it has caused me more grief than I can ever put to words.
I am in the dark as to whether my case, as it occurred before the time period the Goudge inquiry was looking in to, will ever be looked at.
I believe that there needs to be a much broader look at his earlier cases and I also believe this responsibility should not rest with those who may have been wrongfully convicted because of his faulty expert testimony.
It is my fear that this will all die down and people like me will be forgotten.
I also believe that "sorry" is not even close to enough.
Personally, I had to leave the area I was raised in, was never able to finish University and have no idea what my life might have been like if not for this man.
I am one person and I fear there are many many more like me.
This can of worms comes in bulk size."
To this humble Bloggist it is unacceptable that the writer has been left in the dark about whether the case in question is part of a review of cases involving Dr. Smith's work which occurred between 1981 and 1991.
Indeed it is unacceptable that the public has also been left in the dark as to the cases under review.
.
We have no idea as to how many of these cases there are, what process is being followed, how the review has progressed, what findings have been made - and whether any of them involve individuals who have been involved in the criminal process as a result of Dr. Smith's participation in the case.
When I contacted the Chief Coroner's Office last fall I was informed by a senior official that utterly no information as to the review could be made public during the course of the Goudge Inquiry;
Not even the number of cases being reviewed!
When the Inquiry finishes it work on Wednesday there will be no further excuse for the Chief Coroner's Office to keep the public in the dark.
The degree of willingness to keep the public informed about the review - so it can help win back confidence in the Chief Coroner's Office - will be an excellent test of Dr. Andrew McCallum, Ontario's new Chief Coroner.
We should be pressing Dr. McCallum for hard information and watching closely.
Harold Levy...hlevy15@gmail.com;
-------------------------------------------------------------------------------
The following letter which appeared after a recent raises an extremely important point.
Since the Goudge Inquiry was confined to considering cases involving the work of Dr. Charles Smith between 1991 and 2001, when he ceased performing forensic autopsies, what is the status of those cases involving his work which occurred earlier?
"In 1988 I was convicted of manslaughter because of the crown testimony of Dr. Smith," the letter begins.
"It was his testimony alone which convicted me of an infant shaking death and I was sentenced to 4 years in prison," the letter continues.
"This was at the age of 25. My life utterly changed. I have carried this weight my whole adult life and it has caused me more grief than I can ever put to words.
I am in the dark as to whether my case, as it occurred before the time period the Goudge inquiry was looking in to, will ever be looked at.
I believe that there needs to be a much broader look at his earlier cases and I also believe this responsibility should not rest with those who may have been wrongfully convicted because of his faulty expert testimony.
It is my fear that this will all die down and people like me will be forgotten.
I also believe that "sorry" is not even close to enough.
Personally, I had to leave the area I was raised in, was never able to finish University and have no idea what my life might have been like if not for this man.
I am one person and I fear there are many many more like me.
This can of worms comes in bulk size."
To this humble Bloggist it is unacceptable that the writer has been left in the dark about whether the case in question is part of a review of cases involving Dr. Smith's work which occurred between 1981 and 1991.
Indeed it is unacceptable that the public has also been left in the dark as to the cases under review.
.
We have no idea as to how many of these cases there are, what process is being followed, how the review has progressed, what findings have been made - and whether any of them involve individuals who have been involved in the criminal process as a result of Dr. Smith's participation in the case.
When I contacted the Chief Coroner's Office last fall I was informed by a senior official that utterly no information as to the review could be made public during the course of the Goudge Inquiry;
Not even the number of cases being reviewed!
When the Inquiry finishes it work on Wednesday there will be no further excuse for the Chief Coroner's Office to keep the public in the dark.
The degree of willingness to keep the public informed about the review - so it can help win back confidence in the Chief Coroner's Office - will be an excellent test of Dr. Andrew McCallum, Ontario's new Chief Coroner.
We should be pressing Dr. McCallum for hard information and watching closely.
Harold Levy...hlevy15@gmail.com;
COUNTOWN: 3 DAYS TO GO: ACCOUNTABILITY: WILL JUSTICE GOUDGE TAKE THE CHIEF CORONERS OFFICE AND ITS TOP OFFICIALS TO TASK?
When Justice Goudge releases his report on Wednesday, all eyes will be on the degree to which he holds the Chief Coroner's Office and its top officials responsible for the damage caused to our criminal justice system and so many innocent individuals by Dr. Charles Smith in the years under review.
The accountability of the Chief Coroner's Office - and its top officials, Dr. James Young and Dr. Jim Cairns - was the subject of a post which ran on Friday, March 28, 2008, under the heading: "Part One: Closing Submissions; Top Leadership of Chief Coroner's Office Cited For Failing To Prevent Harm To Children and Miscarriages Of Justice;"
The post was headed by the following quotes:
"DCI SUBMITS THE COMMISSION SHOULD FIND THAT DR. JAMES YOUNG, DR. JIM CAIRNS AND DR. CHARLES SMITH CONTRIBUTED TO THE CRISIS IN PEDIATRIC FORENSIC PATHOLOGY BY VIRTUE OF THE CULTURE OF THEIR LEADERSHIP..."EACH WAS COMMITTED TO EITHER A PERSONAL INTEREST OR IDEOLOGY;"
LAWYER SUZAN FRASER; CLOSING SUBMISSIONS TO GOUDGE INQUIRY; ON BEHALF OF "DEFENCE FOR CHILDREN INTERNATIONAL CANADA: (DCI-CANADA);
"Among the thousands of pages of submissions filed at the Goudge Inquiry, one brief deserves particular attention, the post began.
"It is filed by Toronto lawyer Suzan Fraser who represents an organization called "Defence for Children International Canada (DCI-Canada), it continued.
"Fraser's memorable cross-examination of Dr. Charles Smith is discussed is a previous posting called: "Lawyer Suzan Fraser's brilliant cross-examination of Dr. Charles Smith: A powerful voice on behalf of children" which was posted on Feb. 2, 2008;
She focused on the tragic disruption caused within families when siblings were seized by child protection authorities after a parent was wrongly charged with killing a child because of the flawed opinion of Dr. Charles Randal Smith;
Fraser's powerful voice on behalf of children is heard once again in closing submissions that suggest the children and their families were betrayed by a Coroner's office which failed to rein Dr. Smith in;
Fraser wants Commissioner Stephen Goudge to find that the institution of the Office of the Chief Coroner was, "an insular and unaccountable organization and the individuals in charge of pediatric death investigations failed personally to prevent miscarriages of justice and a crisis in pediatric forensic pathology."
And that's just for a start;
Fraser adds that her organization's experience with child deaths - as corroborated by the evidence heard at the Inquiry - "confirms that systems designed to serve and protect children fail for a number of reasons, including systemic causes and the attitudes and actions of individuals, particularly those in charge."
"An organizational culture that shuns openness and accountability is often a major cause when institutions fail children," she says."
Fraser argues that the only way Justice Goudge can understand how the Chief Coroner's Office became "so insular" is to identify "the contributions of individuals as well as systemic and structural factors."
More specifically, she contends that, "confronting the flawed organizational culture within the Chief Coroner's Office requires that the Commission make findings in respect of the role of Dr. (James) Young (former Chief Coroner of Ontario), Dr. (James) Cairns, former Deputy Chief Coroner) and Dr. Smith."
"We believe that addressing their contributions to the failure is the first step in restoring accountability and openness to the coroner’s office and pediatric forensic pathology in Ontario," she says. "This in turn will help to restore confidence in the coroner’s office and pediatric forensic pathology in Ontario."
Here is a portion of the section in which Fraser lays out the alleged failure of Young, Cairns and Smith for Commissioner Goudge:
"DCI submits the Commission should find that Dr. James Young, Dr. Jim Cairns and Dr. Charles Smith contributed to the crisis in pediatric forensic pathology by virtue of the culture of their leadership," the section begins;.
"Each was committed to either a personal interest or ideology," it continues.
"For Dr. Young, it was the protection of his office.
For Dr. Cairns, it was the pursuit of an improved death investigation for children based on his vision of what was right.
For Dr. Smith, it was to carve out a niche as the leading pediatric forensic pathologist and protect his position within the Hospital for Sick Children.
Each needed each other to fulfill their pursuits.
The product was an organizational culture that was so insular, so immune to criticism and so lacking in accountability that someone who was dogmatic, arrogant and ignorant could thrive.
Dr. Smith has admitted that he was all those things and more.
All things that speak to both his competency and his ethics:
he was an advocate;
he was an advocate for the Crown;
he gave confusing testimony;
he went beyond his expertise;
he saw himself as a member of the prosecution team; and
he was profoundly ignorant.
Their shared vision, exposing child abuse by death investigation, was championed by the media and fuelled a moral panic that parents were getting away with murder.
The panic appears to have reached its zenith in the Spring and Summer of 1997, which saw:
0: the Ontario Child Mortality Task Force released its interim report in March, 1997 and Final report in July, 1997;
0:The Toronto Star ran its “Cry for the Children” series in March, April and May, 1997;
0: the inquests into the deaths of Shanay Johnson and Kasandra;
0: The Toronto Star call for inquests to be mandatory for children who die while under the supervision of the CAS;
0: And Jordan Heikamp dies of starvation on June 23, 1997 at the age of 5 weeks.
The climate was ripe for absolute trust to be placed in the death investigation system.
During this wave of moral panic and absolute trust, investigations were being conducted into the deaths of Joshua, Jenna, Sharon, Nicholas and Jordan, a preliminary inquiry was conducted into the death of Taylor and inquests were conducted into the death of Kasandra and Shanay Johnson who died as a result of violence by her caregiver.
In our submission, in this insular culture, together with the unique opportunity afforded by society’s increasing awareness and repugnance of child abuse, Dr. Smith flourished.
It is important to recognize that the impact of this institutional culture is far-reaching.
First, the experiences of those investigated, charged and in some cases convicted as a result of Dr. Smith are well understood.
Second, surviving siblings and future born children were also affected.
The overview reports provide some detail to their experiences.
A chart, summarizing what is known about the child welfare proceedings is attached as Appendix “B” to these submissions.
It is fair to say, that as the result of Dr. Smith’s opinion at least 17 children were taken into the care of the state and three children were placed for adoption.
Those not adopted, appear to have been ultimately returned to their families after the criminal charges were dealt with by the court.
Third, the findings in these cases appear to have influenced the academic literature.
Dr. Pollanen’s article “Fatal Child Abuse Maltreatment Syndrome” appears to draw its conclusions from many of the cases here.
Finally, Dr. Smith’s inquest work led to 73 recommendations in the Kasandra inquest7 which formed a platform for the reform of the Child and Family Service Act in May, 19998.
Dr. Cairns and Dr. Young introduced Dr. Smith as the leading authority in either the country or the continent.
The only pediatric forensic pathology training in which Dr. Smith participated was training given by himself.
He was invited by (The Chief Coroner's Office) throughout the 1980’s and 1990’s to deliver training and the Coroner’s office encouraged him to develop expertise in pediatric forensic pathology.
It was advantageous for (the Office of the Chief Coroner of Ontario) to have someone with expertise in Child Abuse and Neglect. They needed Dr. Smith and Dr. Smith needed them.
Harold Levy...hlevy15@gmail.com;
The accountability of the Chief Coroner's Office - and its top officials, Dr. James Young and Dr. Jim Cairns - was the subject of a post which ran on Friday, March 28, 2008, under the heading: "Part One: Closing Submissions; Top Leadership of Chief Coroner's Office Cited For Failing To Prevent Harm To Children and Miscarriages Of Justice;"
The post was headed by the following quotes:
"DCI SUBMITS THE COMMISSION SHOULD FIND THAT DR. JAMES YOUNG, DR. JIM CAIRNS AND DR. CHARLES SMITH CONTRIBUTED TO THE CRISIS IN PEDIATRIC FORENSIC PATHOLOGY BY VIRTUE OF THE CULTURE OF THEIR LEADERSHIP..."EACH WAS COMMITTED TO EITHER A PERSONAL INTEREST OR IDEOLOGY;"
LAWYER SUZAN FRASER; CLOSING SUBMISSIONS TO GOUDGE INQUIRY; ON BEHALF OF "DEFENCE FOR CHILDREN INTERNATIONAL CANADA: (DCI-CANADA);
"Among the thousands of pages of submissions filed at the Goudge Inquiry, one brief deserves particular attention, the post began.
"It is filed by Toronto lawyer Suzan Fraser who represents an organization called "Defence for Children International Canada (DCI-Canada), it continued.
"Fraser's memorable cross-examination of Dr. Charles Smith is discussed is a previous posting called: "Lawyer Suzan Fraser's brilliant cross-examination of Dr. Charles Smith: A powerful voice on behalf of children" which was posted on Feb. 2, 2008;
She focused on the tragic disruption caused within families when siblings were seized by child protection authorities after a parent was wrongly charged with killing a child because of the flawed opinion of Dr. Charles Randal Smith;
Fraser's powerful voice on behalf of children is heard once again in closing submissions that suggest the children and their families were betrayed by a Coroner's office which failed to rein Dr. Smith in;
Fraser wants Commissioner Stephen Goudge to find that the institution of the Office of the Chief Coroner was, "an insular and unaccountable organization and the individuals in charge of pediatric death investigations failed personally to prevent miscarriages of justice and a crisis in pediatric forensic pathology."
And that's just for a start;
Fraser adds that her organization's experience with child deaths - as corroborated by the evidence heard at the Inquiry - "confirms that systems designed to serve and protect children fail for a number of reasons, including systemic causes and the attitudes and actions of individuals, particularly those in charge."
"An organizational culture that shuns openness and accountability is often a major cause when institutions fail children," she says."
Fraser argues that the only way Justice Goudge can understand how the Chief Coroner's Office became "so insular" is to identify "the contributions of individuals as well as systemic and structural factors."
More specifically, she contends that, "confronting the flawed organizational culture within the Chief Coroner's Office requires that the Commission make findings in respect of the role of Dr. (James) Young (former Chief Coroner of Ontario), Dr. (James) Cairns, former Deputy Chief Coroner) and Dr. Smith."
"We believe that addressing their contributions to the failure is the first step in restoring accountability and openness to the coroner’s office and pediatric forensic pathology in Ontario," she says. "This in turn will help to restore confidence in the coroner’s office and pediatric forensic pathology in Ontario."
Here is a portion of the section in which Fraser lays out the alleged failure of Young, Cairns and Smith for Commissioner Goudge:
"DCI submits the Commission should find that Dr. James Young, Dr. Jim Cairns and Dr. Charles Smith contributed to the crisis in pediatric forensic pathology by virtue of the culture of their leadership," the section begins;.
"Each was committed to either a personal interest or ideology," it continues.
"For Dr. Young, it was the protection of his office.
For Dr. Cairns, it was the pursuit of an improved death investigation for children based on his vision of what was right.
For Dr. Smith, it was to carve out a niche as the leading pediatric forensic pathologist and protect his position within the Hospital for Sick Children.
Each needed each other to fulfill their pursuits.
The product was an organizational culture that was so insular, so immune to criticism and so lacking in accountability that someone who was dogmatic, arrogant and ignorant could thrive.
Dr. Smith has admitted that he was all those things and more.
All things that speak to both his competency and his ethics:
he was an advocate;
he was an advocate for the Crown;
he gave confusing testimony;
he went beyond his expertise;
he saw himself as a member of the prosecution team; and
he was profoundly ignorant.
Their shared vision, exposing child abuse by death investigation, was championed by the media and fuelled a moral panic that parents were getting away with murder.
The panic appears to have reached its zenith in the Spring and Summer of 1997, which saw:
0: the Ontario Child Mortality Task Force released its interim report in March, 1997 and Final report in July, 1997;
0:The Toronto Star ran its “Cry for the Children” series in March, April and May, 1997;
0: the inquests into the deaths of Shanay Johnson and Kasandra;
0: The Toronto Star call for inquests to be mandatory for children who die while under the supervision of the CAS;
0: And Jordan Heikamp dies of starvation on June 23, 1997 at the age of 5 weeks.
The climate was ripe for absolute trust to be placed in the death investigation system.
During this wave of moral panic and absolute trust, investigations were being conducted into the deaths of Joshua, Jenna, Sharon, Nicholas and Jordan, a preliminary inquiry was conducted into the death of Taylor and inquests were conducted into the death of Kasandra and Shanay Johnson who died as a result of violence by her caregiver.
In our submission, in this insular culture, together with the unique opportunity afforded by society’s increasing awareness and repugnance of child abuse, Dr. Smith flourished.
It is important to recognize that the impact of this institutional culture is far-reaching.
First, the experiences of those investigated, charged and in some cases convicted as a result of Dr. Smith are well understood.
Second, surviving siblings and future born children were also affected.
The overview reports provide some detail to their experiences.
A chart, summarizing what is known about the child welfare proceedings is attached as Appendix “B” to these submissions.
It is fair to say, that as the result of Dr. Smith’s opinion at least 17 children were taken into the care of the state and three children were placed for adoption.
Those not adopted, appear to have been ultimately returned to their families after the criminal charges were dealt with by the court.
Third, the findings in these cases appear to have influenced the academic literature.
Dr. Pollanen’s article “Fatal Child Abuse Maltreatment Syndrome” appears to draw its conclusions from many of the cases here.
Finally, Dr. Smith’s inquest work led to 73 recommendations in the Kasandra inquest7 which formed a platform for the reform of the Child and Family Service Act in May, 19998.
Dr. Cairns and Dr. Young introduced Dr. Smith as the leading authority in either the country or the continent.
The only pediatric forensic pathology training in which Dr. Smith participated was training given by himself.
He was invited by (The Chief Coroner's Office) throughout the 1980’s and 1990’s to deliver training and the Coroner’s office encouraged him to develop expertise in pediatric forensic pathology.
It was advantageous for (the Office of the Chief Coroner of Ontario) to have someone with expertise in Child Abuse and Neglect. They needed Dr. Smith and Dr. Smith needed them.
Harold Levy...hlevy15@gmail.com;
Saturday, September 27, 2008
COUNTDOWN: 4 DAYS TO GO: "STARTLING REVELATIONS"; PART NINE;
During the course of the Goudge Inquiry, I was shocked to learn from the evidence of Dr. Michael Pollanen that Dr. Charles Smith's erroneous views on so-called baby-shaking deaths and head-injury cases were widely shared by other pathologists.
This raises the disturbing possibility that dozens that numerous other individuals may have been wrongfully charged and convicted of killing children due to the imperfect, but convincing, pathology of the day.
Others may have been wrongfully charged and convicted because of popular theories of the day - such as Munchausen's Syndrome By Proxy - which have now come under severe attack.
If this is the case, there is a real possibility that Ontario's criminal justice system has further been tainted by the failings of pathology - and Justice Goudge could perform an important service by drawing this to the attention of the government and calling for a review.
I discussed this important issue in a post which ran on Saturday, May 10, 2008, under the heading: "Part One: "Shaken Baby" And "Head Injury" Cases Cry Out For Review; AIDWYC and Mullins-Johnson Closing Submissions;"
The post was headed by the following quotes:
"DR. SMITH WAS NOT THE ONLY PATHOLOGIST IN ONTARIO WHO MADE DIAGNOSES OF SHAKEN BABY SYNDROME.
DR. POLLANEN NOTED IN HIS JANUARY, 2007 MEMORANDUM THAT “MANY OF DR. SMITH’S VIEWS ON SHAKEN BABY SYNDROME WERE SIMILAR TO A PREVAILING VIEW IN THIS CONTROVERSIAL AREA OF FORENSIC PATHOLOGY AT THE TIME HE GAVE TESTIMONY ON THE ISSUE”.
INEVITABLY, MANY OTHER PATHOLOGISTS, WORKING FROM THE SAME ASSUMPTIONS, DREW SIMILAR CONCLUSIONS."
CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;
-------------------------------------------------------------------------------
"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," the post began.
"For this reason, I wil be 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," it contineud;
"Today's focus is on a section in which the two parties point out the now proverbial elephant that has been made its presence known throughout the inquiry: the “Shaken Baby” and Head Injury Cases not just in Canada but elsewhere in the world - which Resulted in Criminal Convictions.
"Miscarriages of justice have surely occurred in cases other than those involving Dr. Smith where the diagnosis or cause of death was attributed to shaken baby syndrome or head injury," this section begins;
"According to Dr. Pollanen, “apropos of the results of the Smith and the Goldsmith reviews, there is a reasonable basis to believe that problems could exist with other fatal infant head injury cases, including cases certified as Shaken Baby Syndrome" it continues.
"As Dr. Pollanen and others have made clear throughout this inquiry, infant head injury cases are viewed very differently today than in the past, due to advances in research and scientific understanding.
In the United Kingdom, the Court of Appeal’s authoritative and detailed judgment, R. v. Harris and Others, summarized the state of the science now and the implications for criminal prosecutions based on earlier opinions
Following the release of that decision, the Right Honourable Lord Goldsmith ordered a review of all cases in England in which a parent had been convicted of killing a child under 2.
A total of 297 cases were reviewed, and 28 were found to raise concerns; a further three cases that were still before the courts were immediately withdrawn by the prosecution.
Of those. three cases of “shaken baby syndrome” were reviewed by Lord Goldsmith, resulting in ten that were determined to require further investigation. Of those, three were recommended for referral to the Criminal Cases Review Commission.
Ultimately, a total of 39 cases were referred either to the Criminal Cases Review Commission or the Court of Appeal.
There is no reason to imagine that Ontario is now, or has ever been, immune to this disturbing pattern of scientific and judicial error.
Indeed, it appears that pathologists here have been applying the same diagnostic criteria as their British counterparts in cases raising the same issues; it would be difficult to explain how they had avoided the same tragic errors in an appreciable number of cases.
The expert evidence heard at the Inquiry made it apparent that there is no assurance we have not replicated those mistakes in some cases, and, indeed, gave every reason to believe we have.
These errors are not the result only of “rogue” pathologists such as Dr. Smith – they are a predictable product of incomplete scientific knowledge and a judicial climate ill-equipped to recognize them.
Dr. Smith was not the only pathologist in Ontario who made diagnoses of shaken baby syndrome.
Dr. Pollanen noted in his January, 2007 memorandum that “many of Dr. Smith’s views on Shaken Baby Syndrome were similar to a prevailing view in this controversial area of forensic pathology at the time he gave testimony on the issue”.
Inevitably, many other pathologists, working from the same assumptions, drew similar conclusions.
Several witnesses throughout the inquiry, including several pathologists, were of the view that a review similar to the Goldsmith review is necessary in Ontario to restore public confidence in the system9. In the words of Dr. Lucas:
… with the vision of hindsight and our current state of knowledge applying current day approaches, standards, and expectations for how the conclusion would be drawn in these cases to those cases in – in retrospect… conclusions of the pathologist my be different, and as a consequence the conclusions in the criminal justice system may in fact be different.
To assure the people of Ontario that no one else has been convicted of a crime that did not occur, a similar review must be carried out here.
Further, the Commissioner should go so far as to suggest that a review should be conducted of cases in which infant head injury and shaken baby syndrome have resulted in criminal convictions (albeit in a manner that does not exceed his limited territorial mandate), as was done in the Goldsmith Review.
The system has, as Dr. Lauwers testified, a “moral and ethical” obligation to examine each case to make sure “there isn’t some family that’s come to some significant harm as a result of information which has changed over a period of time”".
The two parties make the following recommendations:
0: Further reviews of the continuing validity of expert pathology opinions that contributed to a criminal prosecution beyond the review of Dr. Smith's cases which has been completed.
0: Based on the evidence heard at this Inquiry, the Commissioner should recommend that the Province of Ontario undertake an immediate review of all “shaken baby” and fatal pediatric head injury cases which have resulted in criminal convictions in the province.
That message should resound not only in Ontario, but in all other Canadian provinces, and wherever else in the world prevailing notions of pathology - now proven wrong - led to the prosecution and conviction of innocent people, some who may still be behind bars
This injustice cries out to be fixed.
Harold Levy...hlevy15@gmail.com'
This raises the disturbing possibility that dozens that numerous other individuals may have been wrongfully charged and convicted of killing children due to the imperfect, but convincing, pathology of the day.
Others may have been wrongfully charged and convicted because of popular theories of the day - such as Munchausen's Syndrome By Proxy - which have now come under severe attack.
If this is the case, there is a real possibility that Ontario's criminal justice system has further been tainted by the failings of pathology - and Justice Goudge could perform an important service by drawing this to the attention of the government and calling for a review.
I discussed this important issue in a post which ran on Saturday, May 10, 2008, under the heading: "Part One: "Shaken Baby" And "Head Injury" Cases Cry Out For Review; AIDWYC and Mullins-Johnson Closing Submissions;"
The post was headed by the following quotes:
"DR. SMITH WAS NOT THE ONLY PATHOLOGIST IN ONTARIO WHO MADE DIAGNOSES OF SHAKEN BABY SYNDROME.
DR. POLLANEN NOTED IN HIS JANUARY, 2007 MEMORANDUM THAT “MANY OF DR. SMITH’S VIEWS ON SHAKEN BABY SYNDROME WERE SIMILAR TO A PREVAILING VIEW IN THIS CONTROVERSIAL AREA OF FORENSIC PATHOLOGY AT THE TIME HE GAVE TESTIMONY ON THE ISSUE”.
INEVITABLY, MANY OTHER PATHOLOGISTS, WORKING FROM THE SAME ASSUMPTIONS, DREW SIMILAR CONCLUSIONS."
CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;
-------------------------------------------------------------------------------
"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," the post began.
"For this reason, I wil be 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," it contineud;
"Today's focus is on a section in which the two parties point out the now proverbial elephant that has been made its presence known throughout the inquiry: the “Shaken Baby” and Head Injury Cases not just in Canada but elsewhere in the world - which Resulted in Criminal Convictions.
"Miscarriages of justice have surely occurred in cases other than those involving Dr. Smith where the diagnosis or cause of death was attributed to shaken baby syndrome or head injury," this section begins;
"According to Dr. Pollanen, “apropos of the results of the Smith and the Goldsmith reviews, there is a reasonable basis to believe that problems could exist with other fatal infant head injury cases, including cases certified as Shaken Baby Syndrome" it continues.
"As Dr. Pollanen and others have made clear throughout this inquiry, infant head injury cases are viewed very differently today than in the past, due to advances in research and scientific understanding.
In the United Kingdom, the Court of Appeal’s authoritative and detailed judgment, R. v. Harris and Others, summarized the state of the science now and the implications for criminal prosecutions based on earlier opinions
Following the release of that decision, the Right Honourable Lord Goldsmith ordered a review of all cases in England in which a parent had been convicted of killing a child under 2.
A total of 297 cases were reviewed, and 28 were found to raise concerns; a further three cases that were still before the courts were immediately withdrawn by the prosecution.
Of those. three cases of “shaken baby syndrome” were reviewed by Lord Goldsmith, resulting in ten that were determined to require further investigation. Of those, three were recommended for referral to the Criminal Cases Review Commission.
Ultimately, a total of 39 cases were referred either to the Criminal Cases Review Commission or the Court of Appeal.
There is no reason to imagine that Ontario is now, or has ever been, immune to this disturbing pattern of scientific and judicial error.
Indeed, it appears that pathologists here have been applying the same diagnostic criteria as their British counterparts in cases raising the same issues; it would be difficult to explain how they had avoided the same tragic errors in an appreciable number of cases.
The expert evidence heard at the Inquiry made it apparent that there is no assurance we have not replicated those mistakes in some cases, and, indeed, gave every reason to believe we have.
These errors are not the result only of “rogue” pathologists such as Dr. Smith – they are a predictable product of incomplete scientific knowledge and a judicial climate ill-equipped to recognize them.
Dr. Smith was not the only pathologist in Ontario who made diagnoses of shaken baby syndrome.
Dr. Pollanen noted in his January, 2007 memorandum that “many of Dr. Smith’s views on Shaken Baby Syndrome were similar to a prevailing view in this controversial area of forensic pathology at the time he gave testimony on the issue”.
Inevitably, many other pathologists, working from the same assumptions, drew similar conclusions.
Several witnesses throughout the inquiry, including several pathologists, were of the view that a review similar to the Goldsmith review is necessary in Ontario to restore public confidence in the system9. In the words of Dr. Lucas:
… with the vision of hindsight and our current state of knowledge applying current day approaches, standards, and expectations for how the conclusion would be drawn in these cases to those cases in – in retrospect… conclusions of the pathologist my be different, and as a consequence the conclusions in the criminal justice system may in fact be different.
To assure the people of Ontario that no one else has been convicted of a crime that did not occur, a similar review must be carried out here.
Further, the Commissioner should go so far as to suggest that a review should be conducted of cases in which infant head injury and shaken baby syndrome have resulted in criminal convictions (albeit in a manner that does not exceed his limited territorial mandate), as was done in the Goldsmith Review.
The system has, as Dr. Lauwers testified, a “moral and ethical” obligation to examine each case to make sure “there isn’t some family that’s come to some significant harm as a result of information which has changed over a period of time”".
The two parties make the following recommendations:
0: Further reviews of the continuing validity of expert pathology opinions that contributed to a criminal prosecution beyond the review of Dr. Smith's cases which has been completed.
0: Based on the evidence heard at this Inquiry, the Commissioner should recommend that the Province of Ontario undertake an immediate review of all “shaken baby” and fatal pediatric head injury cases which have resulted in criminal convictions in the province.
That message should resound not only in Ontario, but in all other Canadian provinces, and wherever else in the world prevailing notions of pathology - now proven wrong - led to the prosecution and conviction of innocent people, some who may still be behind bars
This injustice cries out to be fixed.
Harold Levy...hlevy15@gmail.com'
COUNTDOWN: 4 DAYS TO GO; ACCOUNTABILITY; WILL DR. SMITH EVER BE BROUGHT TO ACCOUNT?
"WHAT WE REALLY NEED FOR SMITH IS TO ENSURE THAT HE NEVER, EVER WORKS IN HIS PROFESSION AGAIN," SHE (LAWYER CINDY WASSER) SAID. "INTERPOL COULD NOTIFY ALL INTERNATIONAL POLICE.
"WE HAVE TO KNOW THAT THE WORLD HEALTH ORGANIZATION KNOWS ABOUT THIS AND HAS BROADCAST IT. HE COULD GO TO SOME VERY SMALL COUNTRY THAT DOESN'T KNOW," MS. WASSER SAID. "I'M NOT SURE THAT IN A COUNTRY LIKE LITHUANIA - WHERE HE WAS UNTIL RECENTLY STILL GOING TO LECTURE - THEY HAVE A CLUE."
STRIPPING DR. SMITH OF HIS LICENCE TO PRACTISE MEDICINE MIGHT GO A LONG WAY TO ACHIEVING THAT END, AND THE ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS MAY DO PRECISELY THAT IN ORDER TO RESTORE PUBLIC CONFIDENCE.
TORONTO LAWYER CINDY WASSER; GLOBE AND MAIL STORY BY KIRK MAKIN;
-------------------------------------------------------------------------------------
As we draw closer to release of the Goudge Inquiry report on October 1, 2008, the big question of the day is whether Dr. Charles Smith Will ever be brought to account;
There are some signs that the Inquiry may have already had an effect - such as Smith's decision not to renew his membership in the Ontario College which became effective on August 9;
Could it be that Dr. Smith - or, more accurately Mr. Smith - is aware that the report may be devastating to him and is trying to circumvent the College's professional misconduct process?
The Inquiry appears may also have prodded the College to demonstrate that it has learned its lesson from the Smith debacle - as demonstrated by its decision to continue investigating Smith in spite of his resignation;
The College may also be addressing a point raised by Toronto lawyer Cindy Wasser in an interview with Globe and Mail reporter Kirk Makin - that unless Smith is stripped of his license by a professional body, Smith may show up in some small country - say Lithuania, elsewhere in the world.
Even this would be difficult for Smith to accomplish - because the Inquiry has been widely reported throughout the world.evidence called at the Inquiry has been reported internationally.
In short, he is being closely watched.
Which brings us to the current series of posts - will Dr. Charles Smith ever be brought to account?
Reporter Makin tackled this pivotal question head on in an article headed, "Will Charles Smith be held accountable? It remains to be seen if the Ontario pathologist whose flawed testimony led to convictions of innocent people will pay a price," which was published on March 6, 2008;
"A common thread runs through every wrongful conviction case that has convulsed the Canadian justice system: Authority figures are not held accountable," the story begins.
"The question of accountability looms large again, as the Goudge commission has just concluded its inquiry into massive failings by Charles Smith and the Ontario Office of the Chief Coroner. In the aftermath of an inquiry that exposed a startling degree of dysfunction in the coroner's system, will Dr. Smith - or anyone else - pay a price?", it continues.
"Mr. Justice Stephen Goudge's hands will be tied when it comes to making findings of criminal or civil liability in his report, scheduled for release in late spring or summer.
Testimony and documents filed at the inquiry are off limits as far as criminal charges or professional discipline are concerned. They may be employed as an investigative tool by outside agencies, but not used as evidence.
Still, that does not stop Judge Goudge from pointing fingers.
"I think there will be a lot of fact-finding which anybody with half a brain will read as wrongdoing - without Justice Goudge actually saying that it is," said Cindy Wasser, a criminal lawyer who spent years battling for a public inquiry into the Smith affair.
Since many of Dr. Smith's mistakes involved changing or embellishing autopsy reports to conform with what he claims was his changing analysis of a case, they may fall short of providing the necessary proof.
In some cases, such as William Mullins-Johnson's conviction for the murder of his niece, Valin, Dr. Smith can also point to defence experts whose concessions bolstered his conclusions.
However, a handful of specific incidents remain that could potentially justify a criminal charge, including one in a case where a Peterborough, Ont., mother was charged with murdering her daughter, Jenna. For years after he conducted Jenna's autopsy, Dr. Smith had possession of a pubic hair that had been found on the victim's body and could have been of significant evidentiary value. In this case, a criminal charge would be justified if it could be shown that Dr. Smith intentionally suppressed the evidence.
"It is very hard to make these people accountable in our legal framework," said James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted. "So many years have passed in these cases that it makes the criminal burden of proof very hard to meet.
"There have been prosecutions in the U.K. and the United States, but in all of our wrongful conviction cases in Canada, there has never been satisfactory accountability," said Mr. Lockyer, who represents eight parents fighting for exoneration in cases where Dr. Smith was a Crown expert.
Mr. Lockyer said police and prosecutors whose actions led to wrongful convictions simply do not end up being criminally charged, fired from their jobs or disciplined. Erring judges suffer no censure. Experts who provide flawed testimony walk away, their reputations unmarred, to testify another day.
Indeed, Dr. Smith is a walking illustration of the sort of problem that may arise when an expert is not made accountable in a country as vast as Canada. Even after his errors began to surface in Ontario, Dr. Smith continued to provide expert testimony or consultations as far away as Yukon, and he later relocated to Saskatchewan and was able to briefly resume his career.
University of Toronto law professor Michael Code said the key to finding intentional wrongdoing lies in looking at what an individual believed at the time.
Stressing that his comments were general, Prof. Code said: "Anybody who actually believes that what they are doing is proper and appropriate has a complete defence to the offence of obstructing justice."
Ms. Wasser said that intent plays an equally vital role in breach-of-trust prosecutions. "It's a question of how a trial judge defines the facts," she said. "It's also a question of whether he is a 'public officer' and commits a 'fraud.' Fraud is so hard to prove. It is an offence that is really meant for your MP or city health inspector who takes a bribe.
"Did [Dr. Smith] fail in his duties of his job? Yes. But was he in that position where public trust fits? I'm not sure."
If the police were to investigate Dr. Smith over allegations of criminal negligence, they would likely fare no better. The Crown would be required to show that there was a dire consequence of his actions, such as death or bodily harm. Wrongfully convicting the innocent simply would not qualify.
Toronto defence lawyer Stephen Skurka noted that Dr. Smith was careful in his testimony not to leave himself legally vulnerable. "Smith's hollow apology that he was ignorant of his role in the courtroom and that he sincerely believed that he was an advocate for the prosecution represented a mockery of the real truth," Mr. Skurka said.
What if Dr. Smith actually were convicted of an offence?
In the most likely scenario, obstructing justice, he could be sentenced to as much as 10 years in prison; having no criminal record, he would more likely get two or three years. But no less, Ms. Wasser said, "since this was probably one of the most egregious forms of obstructing justice - to be in the position he was in and screw up the way he did."
However, she said a prison sentence would do little to protect the public or give his victims a sense of relief.
"What we really need for Smith is to ensure that he never, ever works in his profession again," she said. "Interpol could notify all international police.
"We have to know that the World Health Organization knows about this and has broadcast it. He could go to some very small country that doesn't know," Ms. Wasser said. "I'm not sure that in a country like Lithuania - where he was until recently still going to lecture - they have a clue."
Stripping Dr. Smith of his licence to practise medicine might go a long way to achieving that end, and the Ontario College of Physicians and Surgeons may do precisely that in order to restore public confidence.
Last spring, then-chief-coroner Barry McLellan referred more than a dozen of Dr. Smith's cases to the college for investigation, and lawyers for the college questioned witnesses aggressively at the Goudge hearings.
"Now they have a lot of material, there is no reason why they shouldn't be conducting a hearing to strip him of his licence," Ms. Wasser said.
While the inquiry's unmasking of Dr. Smith was anticipated, what shocked many observers was its exposure of loose standards and patchwork oversight in the Office of the Chief Coroner.
However, few foresee the possibility of further action being taken against those responsible for running the office during Dr. Smith's reign of error, former chief coroner James Young and deputy chief coroner James Cairns.
Again, the stumbling block in the way of criminal charges would be the need to show a purposeful attempt on their part to thwart justice. "You'd have to show that Young and or Cairns deliberately let Smith run his own show with a view to hurting the public," Ms. Wasser said. "I think the Crown would say that there wouldn't be a reasonable prospect of conviction."
Indeed, Dr. Young excused his lapses by pointing to a heavy workload and a penchant for merely scanning correspondence, documents and court rulings that might have alerted him to trouble on the Smith front.
Dr. Cairns more readily accepted responsibility for his lax supervision, and adopted an apologetic stand.
"Cairns was allowed to retire peacefully, and without anything happening," Ms. Wasser observed. "Should there be a way to strip him of his pension and force him to pay back his salary over the years? Yes.
"It's the same with Young," she said. "Should he be asked to resign from his current post? This was pretty bad in terms of reputation - to have all of this dirt going on in your house, and you claim you don't know anything about it."
One form of accountability for those at the centre of the Smith affair is, however, almost inevitable. A lawsuit being pursued by lawyer Peter Wardle on behalf of parents and caregivers who have been exonerated in Smith-related cases is steadily accumulating more plaintiffs.
The group received a significant boost during the inquiry, when it emerged just how closely Dr. Smith was connected to the Chief Coroner's Office. Mr. Wardle said in an interview that it will now be easy to prove that Dr. Smith was an agent of the coroner, not simply a rogue pathologist who acted on his own.
The difference is critical to the plaintiffs' search for defendants whose "deep pockets" will enable them to pay millions of dollars in damages. With Dr. Smith's medical insurers and the Ontario government on the hook for Dr. Smith's mistakes, the plaintiffs can be sure of collecting any award they receive.
However, Mr. Wardle will have more to prove. Dr. Smith's elaborate admissions of failure at the Goudge inquiry were confined to his general conduct, rather than to specific cases.
Should the cases proceed to trial, it will be necessary for Mr. Wardle to show that there was wrongdoing in individual cases. He must also overcome a general immunity from civil liability that is conferred on expert witnesses. However, a recent Ontario Court of Appeal ruling stated that this barrier is not insurmountable.
Depending on how overtly Judge Goudge decides to prod the province into compensating Dr. Smith's victims, government lawyers may sit down to negotiate a settlement. The impetus will be strong to end the nightmare of bad publicity and not risk playing hardball with victims.
"I think the public understands now that a number of people were treated terribly by the justice system, and that overall responsibility lies with the province," Mr. Wardle said.
He said compensation is particularly important to a handful of families who bankrupted themselves defending their children against criminal charges, and failed to launch legal action in time to avoid strict limitation periods.
All of which leaves one party that may never recover from the damage done to it by the Smith affair, Mr. Skurka said: "The great loser, in the end, will be the criminal justice system in this country.""
HAROLD LEVY...hlevy15@gmail.com;
"WE HAVE TO KNOW THAT THE WORLD HEALTH ORGANIZATION KNOWS ABOUT THIS AND HAS BROADCAST IT. HE COULD GO TO SOME VERY SMALL COUNTRY THAT DOESN'T KNOW," MS. WASSER SAID. "I'M NOT SURE THAT IN A COUNTRY LIKE LITHUANIA - WHERE HE WAS UNTIL RECENTLY STILL GOING TO LECTURE - THEY HAVE A CLUE."
STRIPPING DR. SMITH OF HIS LICENCE TO PRACTISE MEDICINE MIGHT GO A LONG WAY TO ACHIEVING THAT END, AND THE ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS MAY DO PRECISELY THAT IN ORDER TO RESTORE PUBLIC CONFIDENCE.
TORONTO LAWYER CINDY WASSER; GLOBE AND MAIL STORY BY KIRK MAKIN;
-------------------------------------------------------------------------------------
As we draw closer to release of the Goudge Inquiry report on October 1, 2008, the big question of the day is whether Dr. Charles Smith Will ever be brought to account;
There are some signs that the Inquiry may have already had an effect - such as Smith's decision not to renew his membership in the Ontario College which became effective on August 9;
Could it be that Dr. Smith - or, more accurately Mr. Smith - is aware that the report may be devastating to him and is trying to circumvent the College's professional misconduct process?
The Inquiry appears may also have prodded the College to demonstrate that it has learned its lesson from the Smith debacle - as demonstrated by its decision to continue investigating Smith in spite of his resignation;
The College may also be addressing a point raised by Toronto lawyer Cindy Wasser in an interview with Globe and Mail reporter Kirk Makin - that unless Smith is stripped of his license by a professional body, Smith may show up in some small country - say Lithuania, elsewhere in the world.
Even this would be difficult for Smith to accomplish - because the Inquiry has been widely reported throughout the world.evidence called at the Inquiry has been reported internationally.
In short, he is being closely watched.
Which brings us to the current series of posts - will Dr. Charles Smith ever be brought to account?
Reporter Makin tackled this pivotal question head on in an article headed, "Will Charles Smith be held accountable? It remains to be seen if the Ontario pathologist whose flawed testimony led to convictions of innocent people will pay a price," which was published on March 6, 2008;
"A common thread runs through every wrongful conviction case that has convulsed the Canadian justice system: Authority figures are not held accountable," the story begins.
"The question of accountability looms large again, as the Goudge commission has just concluded its inquiry into massive failings by Charles Smith and the Ontario Office of the Chief Coroner. In the aftermath of an inquiry that exposed a startling degree of dysfunction in the coroner's system, will Dr. Smith - or anyone else - pay a price?", it continues.
"Mr. Justice Stephen Goudge's hands will be tied when it comes to making findings of criminal or civil liability in his report, scheduled for release in late spring or summer.
Testimony and documents filed at the inquiry are off limits as far as criminal charges or professional discipline are concerned. They may be employed as an investigative tool by outside agencies, but not used as evidence.
Still, that does not stop Judge Goudge from pointing fingers.
"I think there will be a lot of fact-finding which anybody with half a brain will read as wrongdoing - without Justice Goudge actually saying that it is," said Cindy Wasser, a criminal lawyer who spent years battling for a public inquiry into the Smith affair.
Since many of Dr. Smith's mistakes involved changing or embellishing autopsy reports to conform with what he claims was his changing analysis of a case, they may fall short of providing the necessary proof.
In some cases, such as William Mullins-Johnson's conviction for the murder of his niece, Valin, Dr. Smith can also point to defence experts whose concessions bolstered his conclusions.
However, a handful of specific incidents remain that could potentially justify a criminal charge, including one in a case where a Peterborough, Ont., mother was charged with murdering her daughter, Jenna. For years after he conducted Jenna's autopsy, Dr. Smith had possession of a pubic hair that had been found on the victim's body and could have been of significant evidentiary value. In this case, a criminal charge would be justified if it could be shown that Dr. Smith intentionally suppressed the evidence.
"It is very hard to make these people accountable in our legal framework," said James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted. "So many years have passed in these cases that it makes the criminal burden of proof very hard to meet.
"There have been prosecutions in the U.K. and the United States, but in all of our wrongful conviction cases in Canada, there has never been satisfactory accountability," said Mr. Lockyer, who represents eight parents fighting for exoneration in cases where Dr. Smith was a Crown expert.
Mr. Lockyer said police and prosecutors whose actions led to wrongful convictions simply do not end up being criminally charged, fired from their jobs or disciplined. Erring judges suffer no censure. Experts who provide flawed testimony walk away, their reputations unmarred, to testify another day.
Indeed, Dr. Smith is a walking illustration of the sort of problem that may arise when an expert is not made accountable in a country as vast as Canada. Even after his errors began to surface in Ontario, Dr. Smith continued to provide expert testimony or consultations as far away as Yukon, and he later relocated to Saskatchewan and was able to briefly resume his career.
University of Toronto law professor Michael Code said the key to finding intentional wrongdoing lies in looking at what an individual believed at the time.
Stressing that his comments were general, Prof. Code said: "Anybody who actually believes that what they are doing is proper and appropriate has a complete defence to the offence of obstructing justice."
Ms. Wasser said that intent plays an equally vital role in breach-of-trust prosecutions. "It's a question of how a trial judge defines the facts," she said. "It's also a question of whether he is a 'public officer' and commits a 'fraud.' Fraud is so hard to prove. It is an offence that is really meant for your MP or city health inspector who takes a bribe.
"Did [Dr. Smith] fail in his duties of his job? Yes. But was he in that position where public trust fits? I'm not sure."
If the police were to investigate Dr. Smith over allegations of criminal negligence, they would likely fare no better. The Crown would be required to show that there was a dire consequence of his actions, such as death or bodily harm. Wrongfully convicting the innocent simply would not qualify.
Toronto defence lawyer Stephen Skurka noted that Dr. Smith was careful in his testimony not to leave himself legally vulnerable. "Smith's hollow apology that he was ignorant of his role in the courtroom and that he sincerely believed that he was an advocate for the prosecution represented a mockery of the real truth," Mr. Skurka said.
What if Dr. Smith actually were convicted of an offence?
In the most likely scenario, obstructing justice, he could be sentenced to as much as 10 years in prison; having no criminal record, he would more likely get two or three years. But no less, Ms. Wasser said, "since this was probably one of the most egregious forms of obstructing justice - to be in the position he was in and screw up the way he did."
However, she said a prison sentence would do little to protect the public or give his victims a sense of relief.
"What we really need for Smith is to ensure that he never, ever works in his profession again," she said. "Interpol could notify all international police.
"We have to know that the World Health Organization knows about this and has broadcast it. He could go to some very small country that doesn't know," Ms. Wasser said. "I'm not sure that in a country like Lithuania - where he was until recently still going to lecture - they have a clue."
Stripping Dr. Smith of his licence to practise medicine might go a long way to achieving that end, and the Ontario College of Physicians and Surgeons may do precisely that in order to restore public confidence.
Last spring, then-chief-coroner Barry McLellan referred more than a dozen of Dr. Smith's cases to the college for investigation, and lawyers for the college questioned witnesses aggressively at the Goudge hearings.
"Now they have a lot of material, there is no reason why they shouldn't be conducting a hearing to strip him of his licence," Ms. Wasser said.
While the inquiry's unmasking of Dr. Smith was anticipated, what shocked many observers was its exposure of loose standards and patchwork oversight in the Office of the Chief Coroner.
However, few foresee the possibility of further action being taken against those responsible for running the office during Dr. Smith's reign of error, former chief coroner James Young and deputy chief coroner James Cairns.
Again, the stumbling block in the way of criminal charges would be the need to show a purposeful attempt on their part to thwart justice. "You'd have to show that Young and or Cairns deliberately let Smith run his own show with a view to hurting the public," Ms. Wasser said. "I think the Crown would say that there wouldn't be a reasonable prospect of conviction."
Indeed, Dr. Young excused his lapses by pointing to a heavy workload and a penchant for merely scanning correspondence, documents and court rulings that might have alerted him to trouble on the Smith front.
Dr. Cairns more readily accepted responsibility for his lax supervision, and adopted an apologetic stand.
"Cairns was allowed to retire peacefully, and without anything happening," Ms. Wasser observed. "Should there be a way to strip him of his pension and force him to pay back his salary over the years? Yes.
"It's the same with Young," she said. "Should he be asked to resign from his current post? This was pretty bad in terms of reputation - to have all of this dirt going on in your house, and you claim you don't know anything about it."
One form of accountability for those at the centre of the Smith affair is, however, almost inevitable. A lawsuit being pursued by lawyer Peter Wardle on behalf of parents and caregivers who have been exonerated in Smith-related cases is steadily accumulating more plaintiffs.
The group received a significant boost during the inquiry, when it emerged just how closely Dr. Smith was connected to the Chief Coroner's Office. Mr. Wardle said in an interview that it will now be easy to prove that Dr. Smith was an agent of the coroner, not simply a rogue pathologist who acted on his own.
The difference is critical to the plaintiffs' search for defendants whose "deep pockets" will enable them to pay millions of dollars in damages. With Dr. Smith's medical insurers and the Ontario government on the hook for Dr. Smith's mistakes, the plaintiffs can be sure of collecting any award they receive.
However, Mr. Wardle will have more to prove. Dr. Smith's elaborate admissions of failure at the Goudge inquiry were confined to his general conduct, rather than to specific cases.
Should the cases proceed to trial, it will be necessary for Mr. Wardle to show that there was wrongdoing in individual cases. He must also overcome a general immunity from civil liability that is conferred on expert witnesses. However, a recent Ontario Court of Appeal ruling stated that this barrier is not insurmountable.
Depending on how overtly Judge Goudge decides to prod the province into compensating Dr. Smith's victims, government lawyers may sit down to negotiate a settlement. The impetus will be strong to end the nightmare of bad publicity and not risk playing hardball with victims.
"I think the public understands now that a number of people were treated terribly by the justice system, and that overall responsibility lies with the province," Mr. Wardle said.
He said compensation is particularly important to a handful of families who bankrupted themselves defending their children against criminal charges, and failed to launch legal action in time to avoid strict limitation periods.
All of which leaves one party that may never recover from the damage done to it by the Smith affair, Mr. Skurka said: "The great loser, in the end, will be the criminal justice system in this country.""
HAROLD LEVY...hlevy15@gmail.com;
Friday, September 26, 2008
COUNTDOWN: 5 DAYS TO GO; STARTLING REVELATIONS: PART EIGHT;
As high noon (October 1, 2008) approaches I am focusing on some of the more startling revelations that rocked the Goudge Inquiry;
In recent weeks I have touched several startling revelations, including:
0: The introduction of an affidavit from Provincial Court Judge Patrick Dunn which contradicts evidence given by Dr. Smith to the Commission; The intervention of a judge into a public inquiry is an extremely rare event;
0: Introduction from a letter from the Ontario Provincial Police to the Chief Coroner Dr. James Young alleging that Dr. Smith had attempted to intimidate an officer into not giving him a speeding ticket.
0: Dr. Smith's admission of bias; I always viewed Dr. Smith as a cheerleader for the prosecution - but I never dreamed that he would actually admit that he believed his job was to help the prosecution win the case. My only question was how far he would go to make this happen.
0: Maxine Johnson's potentially devastating testimony that she discovered the missing Mullins-Johnson's slides on a shelf in a location in Dr. Smith's office at the Hospital for Sick Children that had been searched months earlier;
0: Unexpected introduction by a letter from the Barrie, Ontario Police Service, which indicated that Smith, with the support of the Chief Coroner's Office, had agreed to participate in an electronic surveillance operation involving the mother of a deceased child.
0: Evidence of a damage control meeting conducted by the Hospital for Sick Children SCAN team following the rejection of its evidence - together with the evidence given by Dr. Charles Smith - by Judge Patrick Dunn in the Amber case.
0: Evidence that prosecutor did not inform Dinesh Kumar's lawyer about Judge Patrick Dunn's searing critique of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN-Team before insisting on a guilty plea to criminal negligence causing his son's death.
0: Evidence that the prosecutors insisted on this plea - as an alternative to the Crown proceeding on the second-degree murder charge - even though Dr. Smith had informed the police that he and Dr. Dirk Huyer of the SCAN-Team were not sure that there was any criminality in the case;
0: Former Chief Coroner Dr. James Young's testimony that he sent under his own signature a letter drafted by Dr. Smith's lawyers (McCarthy Tetrault) to an investigator for the College of Physicians and Surgeons of Ontario which was probing three complaints against Smith. The letter was fully supportive of Dr. Smith.
0: Evidence given to the Goudge Inquiry by College of Physicians and Surgeons investigator Michele Mann which directly and unequivocally contradicted Dr. Young's sworn testimony that he was not aware that Judge Dunn's decision was highly critical of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN team in the Amber case;
0: Dr. Young's testimony that he arranged for public funds to be provided to Dr. Smith to help fund a libel suit against the CBC in connection with a groundbreaking Fifth Estate documentary which showed both Smith and the Chief Coroner's office in a very poor light;
Today's starting revelations relate to Dr. Smith's dangerously flawed work and work habits at the Hospital for Sick Children - and the Hospital's failure to bring his flawed work to the attention of the College of Physicians and Surgeons or the Chief Coroners office.
I covered this subject matter in a post called "More Blame Game: Former Secretary testifies Dr. Charles Smith Blamed Staff For His Failure To Respond Promptly To Phone Calls," which ran on December 26, 2007;
The post was topped by the following quote:
"BECAUSE WE -- THE SECRETARIES ALWAYS SEEM TO, SORT OF, BE BLAMED FOR HIM NOT GETTING HIS MESSAGES. HE WOULD SAY, OH, I DIDN'T GET THE MESSAGE,"
MAXINE JOHNSON TO THE GOUDGE INQUIRY;
"In a previous Blog I reported Maxine Johnson's testimony at the Goudge Inquiry that she was upset to learn that Dr. Smith had blamed a lack of administrative resources for his failure to produce key reports on time," the post began. (See previous posting: The Blame Game: Dr. Charles Smith's dubious claim that his reports were delayed because of lack of administrative support.)
Johnson, who initially served in a secretarial pool that assisted the pathologists at the Hospital For Sick Children, and later worked directly for him, also testified that Smith blamed the secretarial staff for the many calls from people such as prosecutors, police officers, and anxious family members, that he did not return," it continued;
"Johnson told Commissioner Stephen Goudge that the secretaries developed a special system for drawing the messages to his attention: They attached them to his computer monitor with Scotch tape.
She explained to Commission Counsel Robert Centa that they took this precaution: "Because we -- the secretaries always seem to, sort of, be blamed for him notgetting his messages.
He would say, Oh, I didn't get the message.
So we developed a -- a system, whereas -- if you put it on his computer; we always know that he's going to sit in his chair and turn around to his computer screen, so the message would be there.
And if the computer screen was full, which sometimes it was, we would put it on his chair, because he'd have to remove it to be able to sit, so he would definitely get the message.
Johnson also expressed the staff's concern that important requests made by Smith's colleagues at the Hospital for the results Dr. Smith had conducted on specimens from living patients were languishing without response.
For example, Centa showed her an email sent to Dr. Smith, with a blind copy to her, dated February 20, 2002, which read, in part: "Dr. Grant and his staff has been calling several times to get results on specimens since December. They state that this is a, 'HAM/ONC (Hematology/Oncology) Case'."
Johnson agreed with Centa that the delay was serious because the results were needed in order to proceed for possible radiation treatment and ..."it's a very long time for surgical specimens to still be signed-out.
She responded to the urgency by sending a copy of the email to the late Dr. Larry Becker, who was head of the Hospital's Pathology Department at the time, in order to prompt his intervention.
"There were ongoing issues in terms of Dr. Smith getting his reports out in a timely manner at the time," Johnson said.
Johnson's testimony appears to back up the comment of an unnamed senior official of the Chief Coroner's Office who observed at a high level meeting that Dr. Smith would not take responsibility for his acts - and tended to blame others.
This Bloggist cannot understand why the famed Hospital did not fire Smith years earlier in the face of its knowledge of his well documented pattern of delays which posed significant risks to the safety and treatment of its trusting patients and their families."
Where was its sense of responsibility?:
Other startling disclosures relating to Dr. Smith's work on the hospital side in connection with living patients;
0: A letter to the head of the pathology department at Sick Kids from several of Dr. Smith's colleagues who complain that Dr. Smith has misinterpreted the tissue samples taken from young patients in several cases;
0: A letter addressed to Dr. Smith from the head of pathology department which curtails the nature of the work he is permitted to do, lowers his salary accordingly and also requires him to take some courses. (It does not appear from the evidence that this letter was ever sent by the Hospital to Dr. Smith;):
0: Evidence that Dr. Smith backdated reports to make it appear that his work relating to the hospital's patients had been done in a more punctual manner. (It suggests that Dr. Smith was dishonest in both his work for the Coroner's office and that performed as a staff member of the hospital;)
0: Evidence that the deficiencies in Dr. Smith's work for the hospital were never brought to the attention of the Chief Coroner's Office - or to the College of Physicians and Surgeons, the regulatory body of the self-governing medical profession in Ontario;
Harold Levy...hlevy15@gmail.com;
In recent weeks I have touched several startling revelations, including:
0: The introduction of an affidavit from Provincial Court Judge Patrick Dunn which contradicts evidence given by Dr. Smith to the Commission; The intervention of a judge into a public inquiry is an extremely rare event;
0: Introduction from a letter from the Ontario Provincial Police to the Chief Coroner Dr. James Young alleging that Dr. Smith had attempted to intimidate an officer into not giving him a speeding ticket.
0: Dr. Smith's admission of bias; I always viewed Dr. Smith as a cheerleader for the prosecution - but I never dreamed that he would actually admit that he believed his job was to help the prosecution win the case. My only question was how far he would go to make this happen.
0: Maxine Johnson's potentially devastating testimony that she discovered the missing Mullins-Johnson's slides on a shelf in a location in Dr. Smith's office at the Hospital for Sick Children that had been searched months earlier;
0: Unexpected introduction by a letter from the Barrie, Ontario Police Service, which indicated that Smith, with the support of the Chief Coroner's Office, had agreed to participate in an electronic surveillance operation involving the mother of a deceased child.
0: Evidence of a damage control meeting conducted by the Hospital for Sick Children SCAN team following the rejection of its evidence - together with the evidence given by Dr. Charles Smith - by Judge Patrick Dunn in the Amber case.
0: Evidence that prosecutor did not inform Dinesh Kumar's lawyer about Judge Patrick Dunn's searing critique of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN-Team before insisting on a guilty plea to criminal negligence causing his son's death.
0: Evidence that the prosecutors insisted on this plea - as an alternative to the Crown proceeding on the second-degree murder charge - even though Dr. Smith had informed the police that he and Dr. Dirk Huyer of the SCAN-Team were not sure that there was any criminality in the case;
0: Former Chief Coroner Dr. James Young's testimony that he sent under his own signature a letter drafted by Dr. Smith's lawyers (McCarthy Tetrault) to an investigator for the College of Physicians and Surgeons of Ontario which was probing three complaints against Smith. The letter was fully supportive of Dr. Smith.
0: Evidence given to the Goudge Inquiry by College of Physicians and Surgeons investigator Michele Mann which directly and unequivocally contradicted Dr. Young's sworn testimony that he was not aware that Judge Dunn's decision was highly critical of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN team in the Amber case;
0: Dr. Young's testimony that he arranged for public funds to be provided to Dr. Smith to help fund a libel suit against the CBC in connection with a groundbreaking Fifth Estate documentary which showed both Smith and the Chief Coroner's office in a very poor light;
Today's starting revelations relate to Dr. Smith's dangerously flawed work and work habits at the Hospital for Sick Children - and the Hospital's failure to bring his flawed work to the attention of the College of Physicians and Surgeons or the Chief Coroners office.
I covered this subject matter in a post called "More Blame Game: Former Secretary testifies Dr. Charles Smith Blamed Staff For His Failure To Respond Promptly To Phone Calls," which ran on December 26, 2007;
The post was topped by the following quote:
"BECAUSE WE -- THE SECRETARIES ALWAYS SEEM TO, SORT OF, BE BLAMED FOR HIM NOT GETTING HIS MESSAGES. HE WOULD SAY, OH, I DIDN'T GET THE MESSAGE,"
MAXINE JOHNSON TO THE GOUDGE INQUIRY;
"In a previous Blog I reported Maxine Johnson's testimony at the Goudge Inquiry that she was upset to learn that Dr. Smith had blamed a lack of administrative resources for his failure to produce key reports on time," the post began. (See previous posting: The Blame Game: Dr. Charles Smith's dubious claim that his reports were delayed because of lack of administrative support.)
Johnson, who initially served in a secretarial pool that assisted the pathologists at the Hospital For Sick Children, and later worked directly for him, also testified that Smith blamed the secretarial staff for the many calls from people such as prosecutors, police officers, and anxious family members, that he did not return," it continued;
"Johnson told Commissioner Stephen Goudge that the secretaries developed a special system for drawing the messages to his attention: They attached them to his computer monitor with Scotch tape.
She explained to Commission Counsel Robert Centa that they took this precaution: "Because we -- the secretaries always seem to, sort of, be blamed for him notgetting his messages.
He would say, Oh, I didn't get the message.
So we developed a -- a system, whereas -- if you put it on his computer; we always know that he's going to sit in his chair and turn around to his computer screen, so the message would be there.
And if the computer screen was full, which sometimes it was, we would put it on his chair, because he'd have to remove it to be able to sit, so he would definitely get the message.
Johnson also expressed the staff's concern that important requests made by Smith's colleagues at the Hospital for the results Dr. Smith had conducted on specimens from living patients were languishing without response.
For example, Centa showed her an email sent to Dr. Smith, with a blind copy to her, dated February 20, 2002, which read, in part: "Dr. Grant and his staff has been calling several times to get results on specimens since December. They state that this is a, 'HAM/ONC (Hematology/Oncology) Case'."
Johnson agreed with Centa that the delay was serious because the results were needed in order to proceed for possible radiation treatment and ..."it's a very long time for surgical specimens to still be signed-out.
She responded to the urgency by sending a copy of the email to the late Dr. Larry Becker, who was head of the Hospital's Pathology Department at the time, in order to prompt his intervention.
"There were ongoing issues in terms of Dr. Smith getting his reports out in a timely manner at the time," Johnson said.
Johnson's testimony appears to back up the comment of an unnamed senior official of the Chief Coroner's Office who observed at a high level meeting that Dr. Smith would not take responsibility for his acts - and tended to blame others.
This Bloggist cannot understand why the famed Hospital did not fire Smith years earlier in the face of its knowledge of his well documented pattern of delays which posed significant risks to the safety and treatment of its trusting patients and their families."
Where was its sense of responsibility?:
Other startling disclosures relating to Dr. Smith's work on the hospital side in connection with living patients;
0: A letter to the head of the pathology department at Sick Kids from several of Dr. Smith's colleagues who complain that Dr. Smith has misinterpreted the tissue samples taken from young patients in several cases;
0: A letter addressed to Dr. Smith from the head of pathology department which curtails the nature of the work he is permitted to do, lowers his salary accordingly and also requires him to take some courses. (It does not appear from the evidence that this letter was ever sent by the Hospital to Dr. Smith;):
0: Evidence that Dr. Smith backdated reports to make it appear that his work relating to the hospital's patients had been done in a more punctual manner. (It suggests that Dr. Smith was dishonest in both his work for the Coroner's office and that performed as a staff member of the hospital;)
0: Evidence that the deficiencies in Dr. Smith's work for the hospital were never brought to the attention of the Chief Coroner's Office - or to the College of Physicians and Surgeons, the regulatory body of the self-governing medical profession in Ontario;
Harold Levy...hlevy15@gmail.com;
Thursday, September 25, 2008
COUNTDOWN: 6 DAYS TO GO; STARTLING REVELATIONS; PART SEVEN;
As high noon (October 1, 2008) approaches I am focusing on some of the more startling revelations that rocked the Goudge Inquiry;
In recent weeks I have touched several startling revelations, including:
0: The introduction of an affidavit from Provincial Court Judge Patrick Dunn which contradicts evidence given by Dr. Smith to the Commission; The intervention of a judge into a public inquiry is an extremely rare event;
0: Introduction from a letter from the Ontario Provincial Police to the Chief Coroner Dr. James Young alleging that Dr. Smith had attempted to intimidate an officer into not giving him a speeding ticket.
0: Dr. Smith's admission of bias; I always viewed Dr. Smith as a cheerleader for the prosecution - but I never dreamed that he would actually admit that he believed his job was to help the prosecution win the case. My only question was how far he would go to make this happen.
0: Maxine Johnson's potentially devastating testimony that she discovered the missing Mullins-Johnson's slides on a shelf in a location in Dr. Smith's office at the Hospital for Sick Children that had been searched months earlier;
0: Unexpected introduction by a letter from the Barrie, Ontario Police Service, which indicated that Smith, with the support of the Chief Coroner's Office, had agreed to participate in an electronic surveillance operation involving the mother of a deceased child.
0: Evidence of a damage control meeting conducted by the Hospital for Sick Children SCAN team following the rejection of its evidence - together with the evidence given by Dr. Charles Smith - by Judge Patrick Dunn in the Amber case.
0: Evidence that prosecutor did not inform Dinesh Kumar's lawyer about Judge Patrick Dunn's searing critique of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN-Team before insisting on a guilty plea to criminal negligence causing his son's death.
0: Evidence that the prosecutors insisted on this plea - as an alternative to the Crown proceeding on the second-degree murder charge - even though Dr. Smith had informed the police that he and Dr. Dirk Huyer of the SCAN-Team were not sure that there was any criminality in the case;
0: Former Chief Coroner Dr. James Young's testimony that he sent under his own signature a letter drafted by Dr. Smith's lawyers (McCarthy Tetrault) to an investigator for the College of Physicians and Surgeons of Ontario which was probing three complaints against Smith. The letter was fully supportive of Dr. Smith.
0: Evidence given to the Goudge Inquiry by College of Physicians and Surgeons investigator Michele Mann which directly and unequivocally contradicted Dr. Young's sworn testimony that he was not aware that Judge Dunn's decision was highly critical of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN team in the Amber case;
Today's startling revelation is Dr. Young's testimony that he gave public funds to Dr. Smith to help fund a libel suit against the CBC in connection with a CBC (Canadian Broadcasting Corporation) documentary which showed both Smith and the Chief Coroner's office in a very poor light; The post was published under the heading, "Stop The Press: Access To Information Request: Government Funding Of Smith Libel Suit Against CBC; Payment Authorized; Appeal To Be Launched," on June 5, 2008;
The post was topped by the following notes:
"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."
"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 post began.
"The government has provided me with three records," it continued.
"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.
-------------------------------------------------------------------------------
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".
Th's 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."
-------------------------------------------------------------------------------
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.
-----------------------------------------------------------------------------------
DR. CHARLES SMITH: GOUDGE INQUIRY; JANUARY 29, 2008;
-----------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------
This Blog has appealed the government's claim that the documents I have applied for can be withheld becuase of solicitor/client privilege;
Harold Levy...hlevy15@gmail.com;
In recent weeks I have touched several startling revelations, including:
0: The introduction of an affidavit from Provincial Court Judge Patrick Dunn which contradicts evidence given by Dr. Smith to the Commission; The intervention of a judge into a public inquiry is an extremely rare event;
0: Introduction from a letter from the Ontario Provincial Police to the Chief Coroner Dr. James Young alleging that Dr. Smith had attempted to intimidate an officer into not giving him a speeding ticket.
0: Dr. Smith's admission of bias; I always viewed Dr. Smith as a cheerleader for the prosecution - but I never dreamed that he would actually admit that he believed his job was to help the prosecution win the case. My only question was how far he would go to make this happen.
0: Maxine Johnson's potentially devastating testimony that she discovered the missing Mullins-Johnson's slides on a shelf in a location in Dr. Smith's office at the Hospital for Sick Children that had been searched months earlier;
0: Unexpected introduction by a letter from the Barrie, Ontario Police Service, which indicated that Smith, with the support of the Chief Coroner's Office, had agreed to participate in an electronic surveillance operation involving the mother of a deceased child.
0: Evidence of a damage control meeting conducted by the Hospital for Sick Children SCAN team following the rejection of its evidence - together with the evidence given by Dr. Charles Smith - by Judge Patrick Dunn in the Amber case.
0: Evidence that prosecutor did not inform Dinesh Kumar's lawyer about Judge Patrick Dunn's searing critique of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN-Team before insisting on a guilty plea to criminal negligence causing his son's death.
0: Evidence that the prosecutors insisted on this plea - as an alternative to the Crown proceeding on the second-degree murder charge - even though Dr. Smith had informed the police that he and Dr. Dirk Huyer of the SCAN-Team were not sure that there was any criminality in the case;
0: Former Chief Coroner Dr. James Young's testimony that he sent under his own signature a letter drafted by Dr. Smith's lawyers (McCarthy Tetrault) to an investigator for the College of Physicians and Surgeons of Ontario which was probing three complaints against Smith. The letter was fully supportive of Dr. Smith.
0: Evidence given to the Goudge Inquiry by College of Physicians and Surgeons investigator Michele Mann which directly and unequivocally contradicted Dr. Young's sworn testimony that he was not aware that Judge Dunn's decision was highly critical of the evidence given by Dr. Smith and the Hospital for Sick Children SCAN team in the Amber case;
Today's startling revelation is Dr. Young's testimony that he gave public funds to Dr. Smith to help fund a libel suit against the CBC in connection with a CBC (Canadian Broadcasting Corporation) documentary which showed both Smith and the Chief Coroner's office in a very poor light; The post was published under the heading, "Stop The Press: Access To Information Request: Government Funding Of Smith Libel Suit Against CBC; Payment Authorized; Appeal To Be Launched," on June 5, 2008;
The post was topped by the following notes:
"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."
"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 post began.
"The government has provided me with three records," it continued.
"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.
-------------------------------------------------------------------------------
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".
Th's 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."
-------------------------------------------------------------------------------
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.
-----------------------------------------------------------------------------------
DR. CHARLES SMITH: GOUDGE INQUIRY; JANUARY 29, 2008;
-----------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------
This Blog has appealed the government's claim that the documents I have applied for can be withheld becuase of solicitor/client privilege;
Harold Levy...hlevy15@gmail.com;
Subscribe to:
Posts (Atom)
