18 DAYS TO GO: THE MANY FACES OF DR. CHARLES SMITH; HOW WILL JUSTICE GOUDGE RECONCILE THEM? PART FIVE;

"IN THE SEVERAL COURT CASES I COVERED AT WHICH HE TESTIFIED (NONE OF WHICH ARE AT ISSUE AT THIS INQUIRY), I FOUND DR. SMITH A COMPELLING WITNESS, AN ODD DUCK BUT SO SEEMINGLY SQUARE – HE PRONOUNCED HIMSELF A STRONG CHRISTIAN, HAD A SOFT VOICE AND GENTLE MANNERISMS, AND USED TO WEAR CARTOON-PRINT TIES TO COURT SO AS TO REMIND JURORS HE HAD FEELINGS TOO."

COLUMNIST CHRISTIE BLATCHFORD: GLOBE AND MAIL;

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DEFINITION OF "MALICE; MERRIAM-WEBSTER ON-LINE DICTIONARY;

"1: DESIRE TO CAUSE PAIN, INJURY, OR DISTRESS TO ANOTHER
2: INTENT TO COMMIT AN UNLAWFUL ACT OR CAUSE HARM WITHOUT LEGAL JUSTIFICATION OR EXCUSE;"

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The evidence called at the Goudge Inquiry indicated that Dr. Charles Smith actively attempted to suppress the truth of his conduct and to avoid accountability for his actions.

I wrote about his efforts to block the truth from coming out by intimidating others in a posting called "Pathology of Lies: Part Two: Smith The Intimidator; Battling Against Truth And Accountability;" which was published on Feb. 4, 2008;

One aspect of Dr. Charles Smith's pathology is a tendency to call others "liars" - especially when they are speaking the truth," the posting began.

"A classic example is the $4 million lawsuit he launched against the Canadian Broadcasting Corporation (CBC) in connection with the Fifth Estate documentary "Diagnosis Murder", which exposed the enormous harm Dr. Smith caused to innocent parents and caregivers within Ontario's criminal justice system," it continued;

"Smith claimed a whopping $2 million in general damages for libel and $2 million punitive damages from the CBC in in his statement of claim, dated February 8, 2000, which was filed as an exhibit at the Goudge Inquiry.

The legal basis of the claim was that the broadcast was "malicious, false and libelous of him (Smith) personally and in the profession", and that it contained "false defamatory innuendos".

More specifically, it alleged that the impugned aspects of the program would make people believe that:

"(B)ased on the plaintiff's involvement in the review of the three pediatric deaths described in the broadcast, the plaintiff in the performance of his duties as a pediatric forensic pathologist is incompetent."

How misleading!

"(T)hat the plaintiff is not qualified to perform he role of pediatric forensic pathologist;

How dare they suggest that!

"The plaintiff is primarily responsible for miscarriages of justice in the first and second pediatric deaths described in the Broadcast and perhaps is primarily responsible for a miscarriage of justice in the third pediatric death described in the broadcast!

Moi? How could that possibly be true?

As a result of these unwarranted calumnies, Smith went on to say that he "personally and in the way of his profession has been greatly injured in his credit and his reputation and has been brought into scandal, odium, hatred ridicule, contempt and has suffered damage."

Poor Charles...

(The CBC was unaware at the time Smith had asked former Chief Coroner, Dr. James Young, to ask the Ontario Government to help back his private lawsuit with public funds - and the government pulled through!);

(See earlier posting: Goudge Inquiry: Young tells inquiry he persuaded Ontario Government to help fund Dr. Charles Smith's lawsuit against the CBC);

Dr. Smith's lawsuit against the CBC never played out in a courtroom. (It's probably the last thing he have ever wanted)!

Instead he left it hanging over the CBC like a dark cloud - a stark message to the CBC and any other media that might be tempted to portray the truth about him, that there would be consequences.

This was Smith the intimidator.

The same Dr. Smith who allegedly tried to brow-beat an Ontario Provincial Police Officer who pulled him over for speeding by threatening to curtail his office's investigations of deaths of children in her area if she insisted on giving him a ticket.

See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police) letter; Was this the real Dr. Charles Smith; Parts one, two, three and four: December, 2007);

Smith also lashed out against Macleans Magazine in connection with a feature article by reporter Jane O'Hara which, as we have seen from the evidence called at the Goudge Inquiry, has also withstood the sands of time;

Information he gave O'Hara during the course of a lengthy interview about two elaborate conversations he purported to have with a judge has been proven, during the course of the Inquiry, to be an utter fabrication.

(To think that he had the nerve to sue O'Hara and Macleans for not telling the truth!)

It is mind-boggling.

If only he had taken the stories to heart - and learned from them - instead of blasting away defensively in the courts.

Things might have turned out very differently.

Dr. Smith also fought to keep the truth about him from emerging on three other fronts:

The courts; (His legal battle to prevent any one from suing him for any alleged misconduct on the basis that he was a witness and therefore enjoyed absolute witness immunity);

The College of Physicians and Surgeons of Ontario; (His efforts, backed up by the Chief Coroner, Dr. James Young, to persuade the College that it did not have the legal jurisdiction to hear complaints against pathologists for work done on behalf of the Chief Coroner's Office, and;

Public Opinion: His lawyer's efforts to play down suggestions that Dr. Smith was responsible for miscarriages of justice while sending out the message that he he was only responsible for mistakes and errors - a theme which Dr. Smith played out to the hilt in his testimony at the Inquiry.

First, the courts; For about five years, Dr. Smith fended off law-suits - with their potential to compel him to testify and produce documents - with his arcane legal argument that he could not be sued because of a common law doctrine intended encourage people testify in legal proceedings without fear of being sued.

The Ontario Court of Appeal finally opened a door to lawsuits from the people affected by his work, by ruling that the lawsuits were focused on his death investigations – and not on the testimony he later gave in court.

Second: The College; Smith, took the legal position, that the College had no jurisdiction to investigate complaints against him for the reasons referred to above.

We now know, from evidence called at the Goudge Inquiry, that Dr. James Young, the Chief Coroner of the day, attempted to get the College to decline to receive the complaints and forward them to his office where they would be dealt with internally.

Ultimately, the Ontario Health Professions Review Board ruled against Smith and Young, and the three complaints could finally proceed - but not without significant delay and aggravation for the complainants;

A scary thought: If Dr. Smith had managed to fend off both the courts and the College he would have been totally without any external public accountability

(While, at the same time, as we know from the evidence called at the Inquiry, he was not being subjected to internal accountability by either his superiors at the Hospital For Sick Children or in the Chief Coroner's office);

Lastly, the spin being put on Dr. Smith's work by his lawyers is illustrated by a legal document they filed at the outset of the Inquiry.

As I set out in an earlier posting: "Lawyers representing Dr. Charles Smith claim some media incorrectly reported that an independent review found he had "erred" in his work, engaged in "misconduct" - and that his actions had, "directly resulted in miscarriages of justice."

Smith's lawyers make these allegations in a "factum" filed at the Goudge Inquiry on Smith's application to have his own lawyers elicit his evidence "in chief."

The lawyers refer to a "background paper" released by Dr. Barry McLellan, Chief Coroner of Ontario at that time, which announced the result of an independent inquiry of criminally suspicious and homicide cases where Dr. Charles Smith conducted autopsies or provided opinions.

"The Office of the Chief Coroner revealed that in 20 of the 45 cases, the reviewers "had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both," the lawyers say in the factum.

"Moreover, the Chief Coroner advised that there were "restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of not criminally responsible, in 13 of those cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted."

But Smith's lawyers contend that, "despite the absence of any indication in the Backgrounder that Dr. Smith had "erred" in his work, or that he had engaged in any misconduct, subsequent media coverage of the "Backgrounder" described a "revelation of errors" in Dr. Smith's work."

They also allege that, "Moreover, because the Office of the Chief Coroner advised that some of the cases in which concerns were identified had resulted in convictions, the public perception created by the media coverage was that Dr. Smith's "errors" had directly resulted in miscarriages of justice."

The "factum" also alleges that media coverage of government announcements relating to the Inquiry were "highly prejudicial"..." referring to Dr. Smith himself as "an error prone pathologist", and questioning whether his work was "reckless" or "inept.";

(See earlier posting: Smith and the media: Part Six; Smith's lawyers criticize media;)

But no lawyer's tactic could ever contain the ugly truth's about Dr. Smith that were ultimately exposed in the courts, through the College, and at the Inquiry - all of which proved to be beyond Dr. Smith's control and influence.

We have learned that he was not only a liar - both inside and outside of court - but also that he did his best to prevent others from learning the truth, and to defy accountability.

A very calculating and intimidating man."

Determining the truth behind the failure of forensic pathology in Ontario - with its horrible impact on human lives - is an important part of Justice Goudge's mandate.

This was well put by Peter Wardle, lawyer for the Affected Families Group, in closing submissions he made to Justice Goudge on March 31, 2008;

"Our clients have never believed that this Inquiry was about Dr. Charles Smith," Wardle told the Inquiry;

"They have understood from the beginning that the issues were much bigger than one (1) individual.

They have always understood that his failings simply underscored much larger systemic issues; ones involving the very nature of forensic pathology itself, of oversight and accountability, and with the way expert evidence is dealt with by the justice system at large.

However, they do want you to find the facts to uncover the truth, as Justice Cory put it during the blood inquiry reference.

And they want you not to assign blame in a legal sense, but to outline what happened in a way that makes it clear how the conduct of individuals played a central role in systemic failures.

And of course they want you to make practical recommendations that when implemented will make it impossible for these problems to ever happen again and will restore public confidence in the justice system as a whole."

There was a time when Dr. Smith had the power to block the truth from coming out without having to fear any accountability.

That time has passed.

He must now face the dispassionate scrutiny of Justice Goudge who owes nothing more to Dr. Smith than basic fairness - while owing the public at large - and the many people harmed by Dr. Smith over the years - an unfettered account of the truth of what happened over so many years - and who was responsible for it;

Harold Levy...hlevy15@gmail.com;