COUNTDOWN: 19 DAYS TO GO: THE MANY FACES OF DR. CHARLES SMITH: HOW WILL JUSTICE GOUDGE RECONCILE THEM? PART FOUR:

"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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THERE IS A PLAGUE THAT IS GRIEVING THE HEART OF GOD BECAUSE IT IS PREVENTABLE AND CAN BE STOPPED. IT HAS SPREAD AMONG ALL CHURCHES AND IS PARTICULARLY RAMPANT IN SOCIETY. EVEN GOD’S MINISTERS ARE NOT IMMUNE AND MANY OF THEM ARE INFECTED WITH IT.

WHAT IS THIS EVIL PLAGUE? YOU MAY BE SURPRISED AS IT APPEARS RATHER HARMLESS AT FIRST GLANCE. IT IS NOW SO COMMONPLACE THAT PEOPLE ARE DECEIVED INTO JUST ACCEPTING IT AS NORMAL, INSTEAD OF RECOGNIZING AND RESISTING IT. THIS EPIDEMIC IS THE PRACTICE OF LYING AND DISHONESTY.

WHAT DOES THE BIBLE SAY ABOUT LYING? A LYING TONGUE IS NOT ONLY SOMETHING GOD HATES, IT IS ALSO SOMETHING THAT IS AN ABOMINATION TO HIM.

PROVERBS 6:16-19 SAYS, "THESE SIX THINGS DOTH THE LORD HATE: YEA, SEVEN ARE AN ABOMINATION UNTO HIM: A PROUD LOOK, A LYING TONGUE, AND HANDS THAT SHED INNOCENT BLOOD, AN HEART THAT DEVISETH WICKED IMAGINATIONS, FEET THAT BE SWIFT IN RUNNING TO MISCHIEF, A FALSE WITNESS THAT SPEAKETH LIES, AND HE THAT SOWETH DISCORD AMONG BRETHREN."

BIBLE.COM;

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As a crucial Crown witness who played a central role in murder trials Dr. Smith was meant to be fair and honest and to impart to the jury all of his observations and findings - including those which might assist the accused.

We know however, by Dr. Smith's admission at the Goudge Inquiry that for years he believed that his role was to help the prosecution win the case.

In other words, Dr. Smith believed that he was just another member of the prosecution team.

To this humble scribe, this admission - one of several "smoking guns" at the Inquiry - offered a crystal clear explanation for many of his questionable opinions as to the time and cause of death, the manner in which he gave his evidence, and his loss of numerous important exhibits (most of which seemed to have been helpful to the accused);

This admission also raised the extent to which Dr. Smith would go to help the Crown win the case - and in turn enhance his reputation with the public,(read media), the police and the prosecutors.

Dr. Smith wants us - and Commissioner Goudge - to believe that no one ever explained to him that he had to give fair, accurate and balanced testimony after being permitted to give expert evidence to the court.

I suppose it follows therefore that his self-admitted conduct towards Provincial Court Judge Patrick Dunn could be explained by the fact that no one ever told him that he shouldn't tell lies to others - under oath or otherwise.

I set out this troubling face of Dr. Smith in three postings under the heading "the Doctor and the Judge" which ran as follows.

Sunday, January 27, 2008
Part One: Smith Takes The Witness Box; Fact or Fantasy; The Doctor And The Judge;

"AND THAT WAS THE FIRST OCCASION IN WHICH HE (JUDGE PATRICK DUNN) TOLD ME THAT (THE BABYSITTER) WAS GUILTY AS SIN…"

DR. CHARLES SMITH TO REPORTER JANE O’HARA IN TAPED INTERVIEW

One of the most fascinating documents to emerge during the Goudge inquiry is an affidavit from a judge denying statements by Dr. Charles Smith to a reporter.

To say the least, it is highly unusual for a judge to swear an affidavit for consideration in a public inquiry.

This is the first time that I have ever seen it happen.

The Judge is Patrick Dunn, the provincial court judge who acquitted a ten 12-year-old babysitter in Timmins, Ontario, with a lengthy judgment, released on July 25, 1991, which was harshly critical of the evidence given by Dr. Smith and the Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) team.

The reporter is Jane O'Hara, who obtained Smith's controversial comments during a lengthy interview in preparation of a major article on Smith for MacLean's magazine.

Smith's controversial quotes to O'Hara are particularly significant this morning as as one of the dominant themes that has emerged during the Inquiry is his credibility.

I am referring particularly to matters such as his credibility in his work (the honesty and completeness of his forensic reports), his testimony under in oath in court, his defence of his conduct to the College of Physicians and Surgeons of Ontario, and his comments to reporters.

But let's focus for now on the information he gave O'Hara, as reflected in a transcript of the interview which was filed at the inquiry:

O'Hara: Okay now somewhere along the line when I was doing my research somebody mentioned to me that during the trial that you had said and I'm not sure you had said it but that the judge apparently told you during the trial that (the babysitter) was guilty);

Smith: He told me that on several occasions;

O'Hara: Was that in open court?

Smith: No, I'll tell when it first occurred and this is all off the record.

O'Hara: Sure;

Smith: I testified, I flew up there, being told I would be on the stand for a few hours. And I can't remember the day of the week but I ended up there on a Friday or something and then I was flying back to Toronto for the weekend. And at that time both Canadian and Air Canada or Air Ontario flew up to Timmins. Ummm at lunch time, just as we were going to break Judge Dunn asked me how I was returning to Toronto and I indicated to him unbeknown st to me, he was aware that the Canadian flight I was on was cancelled and he made arrangements for me to have my ticket moved to the other airline and then he made arrangements for me to sit with him on the airplane. And I walked onto the airplane and was stunned when I found myself sitting next to this man, who immediately began discussing this case with me.

O'Hara: At this point you're flying back down to Toronto?

Smith: Yeah, I'm in the middle of my testimony. And I felt extremely uncomfortable discussing the case with him and he said it's fine, because I will base my evidence on the evidence in Court. He said I can be hearer of the fact and trier of the fact and this is fine. And that was the first occasion in which he told me that (the babysitter) was guilty as sin. And he made arrangements when I flew back Sunday afternoon to go back and testify some more, I found myself once again sitting beside him on the airplane which I found extremely, extremely unusual. So that was yeah, the conversation came from there. I didn't know how to handle the man or the situation. It was absolutely bizarre. As soon as I got to Timmins on the Sunday night and the crown attorney, not the one who was prosecuting the case, but the senior crown a guy named Dave Thomas met me at the airport. I said this thing has happened to me I don't know how to interpret it, and what does it mean. And I told Thomas this and I said do I continue, what do we do here? And he said there's been a number of problems in this case and that he would simply take it under advisement and I was simply to go on and testify.

O'Hara: Wow, I think that's dynamite. Were you actually blown away when you read the judge's 75-page judgment.

Smith: I never bothered reading the judgment;..."

During the course of the interview Smith told O'Hara that he had a second discussion about the case with Smith at a family law conference in Toronto about a year after the decision was released.

And now for the judge's affidavit:

The alleged discussion on the airplane:

"During the course of the trial, I flew back and forth between Toronto and Timmins. On one occasion, I was on the same flight from Timmins to Toronto as Dr. Charles Smith. Dr. Smith and I exchanged pleasantries on the flight; Although I do not have a specific recollection of my conversation with Dr. Smith, I am certain that I did not discuss the merits of the case or the evidence with Dr. Smith..."

Dunn's alleged making of Dr. Smith's travel arrangements:

"I have no recollection of making any arrangements with regards to Dr. Smith's airline tickets and I do not believe I would have made such arrangements;"

Dunn's sworn comments on a statement Smith made to the College of Physicians and Surgeons of Ontario dated May 4, 1992 - filed in evidence at the Inquiry - in which Smith says that during the trial Dunn told him he believed (the babysitter) was guilty, and that he agreed with evidence that given by himself and other members of the Hospital for Sick Children Suspected Child Abuse and Neglect (SCAN) team, which Dunn had rejected at the trial:

"At no point during the course of the trial did I discuss Dr. Smith's evidence with him or indicate to Dr. Smith that I believed (the babysitter) to be guilty. I also did not indicate to Dr. Smith that I believed the opinions provided by Drs. Barker, Driver and Smith, as alleged in Dr. Smith's letter to the (College)";

Judge Dunn also made short shrift of Smith's claim that they had discussed the Timmins case at a family law conference, saying: "...I have no recollection of discussing the (Timmins) case with Dr. Smith at the family law conference or at any other time. I would not have discussed the case with Dr. Smith. I would let the written judgment speak for itself."

To this Bloggist, Judge Dunn's affidavit goes to the heart of Dr. Smith's credibility and could raise questions about his (Smith's) mental state depending on who you believe - a provincial court judge in a sworn affidavit or Dr. Charles Randal Smith.

If the judge was to be believed - that he never, ever, discussed the Timmins case with Smith - (let alone told him that the 12-year old babysitter was "guilty as sin"0 -the implication would be that Smith has constructed an elaborate fantasy over two chance meetings (on the airplane and at the family law conference). This would be a detailed fantasy containing very specific conversations, and very specific acts, such as the alleged arrangement of airline tickets and seating accommodation on the plane.

If the doctor is to be believed, Judge Dunn has broken some of the serious rules and traditions that govern judges: They do not talk to witnesses during the course of trials; They do not discuss the merits of trials after they are completed (let alone with witnesses like Smith. This would be utterly improper and could land the judge before a hearing of the Judicial Counsel; (All of which explains why Dunn would have taken the extraordinary step of filing an affidavit with the Goudge Inquiry);

The implications of this credibility issue are extremely serious to both the judge and to Dr. Smith.

Why would Judge Dunn break the cardinal rules? I can't imagine any reason why any judge would put his or her job on the line, especially a judge who had presented such a careful, detailed analysis of all of the scientific evidence - prosecution and defence - in his decision?

Why would Dr. Smith offer a false account to the reporter and the College? We know that the Hospital for Children SCAN team went into "damage control" after Dunn's decision was released. We also know that the Dunn's decision was viewed as a set-back for doctors involved in the ideological movement towards criminalizing as "baby-shaking syndrome) cases which previously had been categorized as "Sudden Infant Death Syndrome (SIDS); Indeed, Dr. Smith described the influential role he was playing in the Shaken Baby Syndrome movement, in an email to O'Hara, dated May, 5, 2001, which reads, in part:

"Some of my cases have triggered research activities into forensic pathology. For instance, you are familiar with the (babysitter) case from Timmins. I was frustrated by the judge's apparent inability to understand the complex medical issues, and so began looking for a way to lay to rest some of the questions which the case posed. As a result we published the largest series of shaken baby syndrome (SBS) in the literature, while we were identifying an autopsy finding which may be unique to this form of injury. (One of the controversies at trial was whether there was such a thing as SBS, let alone whether shaking could kill in the absence of blood impact injury; Our research answers those questions.) Several years ago I was invited to present my special investigation in child abuse to the provincial association of family court judges. Judge Dunn who presided over the (Timmins) case was in the audience and he approached me later to discuss the case. We agreed that if the case had gone to trial in the late 1990's, as opposed to the early 1990's, as opposed to the early 1990's, the uncertainties of that trial would have been obviated. (Dunn denied that this alleged conversation occurred in his affidavit - as well as swearing under oath that he never discussed the Timmins case with Smith.H.L.)"

In the context of the Inquiry, if, Judge Dunn - who enjoys an impeccable professional and personal reputation among lawyers and other judges in his area - were to be believed, then all of Dr. Smith's actions and testimony would have to be viewed through the prism that he has difficulty distinguishing fantasy from truth.

For many years however, Dr. Smith's testimony was largely accepted as gospel by judges, crown attorneys, police officers, and even some defence lawyers.

But he won't walk up to the witness stand this morning as the renowned Dr. Charles Randal Smith whose word was gold throughout the world of forensic pathology, backed up by the Hospital For Sick Children and the Chief Coroner's Office.

He will have to stare out at the many individuals and families who have been effected by his erroneous opinions - many of themwill be present - and he will be required to testify under oath, as to his actions.

The tables have certainly turned.

Next posting: Smith Takes the Witness Stand: Fact or Fantasy; Part Two;

Monday, January 28, 2008
Part Two: The Doctor And The Judge; Fact Or Fantasy? Seeing Through The Apology;

The apology that Dr. Charles Smith made earlier today to Judge Patrick Dunn for two comments to reporter Jane O'Hara rang hollow in this Blogster's ears.

It still leaves open the possibility that Smith's account of his two alleged conversations with Dunn were a full-blown fantasy.

Smith admitted that his statement that Dunn told him that the babysitter in the Amber's case was "guilty" was false.

Smith also admitted that his statement that Dunn told him he believed Amber's case would have had a different result if tried in the 1990's because of new scientific knowledge was false.

His justification for making these two false statements he acknowledged were "harmful" to Dunn's reputation is that, "I believe I heard what I wanted to hear."

That's ludicrous.

It's like saying, "forgive me for my opinions that caused innocent people to be jailed, lose their other children to the authorities, and have their names placed on sexual offender lists, because that is what I wanted to believe."

The fact remains that even today Smith insisted that Dunn discussed Amber's case with him - while Dunn, deposed, in a sworn affidavit, that no such discussions had ever occurred.

During the course of the day Smith made numerous apologies to the innocent people he had caused to suffer.

These apologies had one thing in common: They were all made in cases where his misconduct was so notorious that there was nothing else that he could do.

I was not left with any confidence that these apologies came from his heart - if, indeed, he truly has one.

On several occasions, Dr. Smith told the Inquiry that he was "embarrassed" by his actions - which means, I suppose that they might sully the reputation of the great Dr. Charles Randal Smith.

How embarrassing!

If I seem angry and more sarcastic than usual - because even today - the day on which he says he is embarrassed, humbled, and contrite - there is something fundamental that he still does not seem to understand.

It is that pathologists who work in the criminal justice system bear a huge responsibility to be neutral, fair, thorough and accurate - because if they abuse their power innocent people may suffer.

On another note, I can't imagine how difficult it must have been for the fifteen individuals and family members who were sitting just a few feet away from Dr. Smith, as he tried to justify much of his misconduct.

One of them described her reasons for being present when Smith took the witness stand in an email She posted to friends over the Internet:

"I want this man to see he has not broken me nor my family nor my children," she said.

"I want this man to see that I still have a hell of a lot of fight left in me.

I want this man to know this is just the beginning for me yet the complete end for him.

I hope he loses he license to practice period.

If he can make mistakes and affect peoples lives in death then I am sure he has no problem doing it in life."

Another had to flee the hearing room in obvious distress just moments after Dr. Smith had begun testifying.

I wonder if I would have been able to show such restraint when finally confronted with this obnoxious, pedantic, professorial, and yes, arrogant man, who tore a hole in my life at a time when I should have been allowed to mourn the sudden loss of my child.

Their dignity is exemplary.

Wednesday, January 30, 2008
The Doctor And The Judge: Part Three: Fact, Fantasy or Outright Lie?

In recent postings I examined the question whether Dr. Smith's oft-repeated account of two detailed conversations with Judge Patrick Dunn about the Amber case - one on an airplane and one at a judge's conference years later - was fact or fantasy.

To this Bloggist it now appears to be an outright lie.

(See The Doctor and the Judge: Part One and Part Two);

During these alleged conversations (one supposedly made during the course of the trial) Dunn allegedly praised Dr. Smith his colleagues on the Suspected Child Abuse and Neglect Team at the Hospital For Sick Children in Toronto for their scientific evidence at the babysitter's trial and declared that in his view, the babysitter, whom he had acquitted, was actually "guilty as sin";

(Dunn had rejected their evidence in the judgment he delivered when acquitting the babysitter of manslaughter);

But yesterday Smith told Commission Counsel Linda Rothstein that it was not necessary to bring Judge Dunn to testify because he did not challenge Dunn's a sworn affidavit denying that these conversations had occurred.

Here is the exchange:

"MS. LINDA ROTHSTEIN: And you were asked by Commission Counsel whether it was necessary to call Justice Dunn as a witness to speak to any of the facts
set out in his affidavit. You understood that, did you not --

DR. CHARLES SMITH: I understood --

MS. LINDA ROTHSTEIN: -- Dr. Smith?

DR. CHARLES SMITH: -- that was a possibility, yes.

MS. LINDA ROTHSTEIN: And your counsel told the Inquiry that you did not intend to dispute any of the facts set out in Justice Dunn's affidavit and therefore, it was not necessary for the Commission to call Justice Dunn to give evidence and be cross-examined. True?

DR. CHARLES SMITH: That's correct."

The implications of this implied admission are enormous.

First, it means that he unabashedly slandered Judge Dunn - by stating Dunn had discussed the case with him during the trial - to the numerous people he recounted the story to over the years colleagues at the Hospital For Sick Children and senior officials of the Ontario Chief Coroner's Office.

Secondly, it means he mislead the College of Physicians and Surgeons of Ontario - to whom he gave a written account of the story in response to a complaint launched by the babysitter's parents.

To put it bluntly, he lied to his governing body.

(This has serious implications because Dr. Smith is still a member of the College - and subject to its jurisdiction - and because he pleaded guilty in 2005 to misleading the Saskatchewan College of Physicians and Surgeons on his application for temporary membership).

Here is a relevant portion of yesterday's testimony:

"Ms. Rothstein: In the middle of the first paragraph, you say: "In spite of several days of vigorous cross-examination by the defence counsel for SM, Mr. Renault, my opinion did not waiver." You then say:"Furthermore, on two (2) occasions during my week of testimony, the judge, Patrick Dunn, discussed my evidence "Two (2) occasions".Those words were not true, were they, Dr. Smith?

DR. CHARLES SMITH: No. I -- I erred -- I erred in that.

MS. LINDA ROTHSTEIN: And you knew they were not true when you wrote them, sir.

(BRIEF PAUSE)

DR. CHARLES SMITH: I'm not sure just -- just what my thinking was then. I don't recall. But they are wrong, and -- and I'm very sorry for that.

MS. LINDA ROTHSTEIN: Discussed my evidence with me at length." Those words are completely untrue, are they not?

DR. CHARLES SMITH: That's wrong. That's -- that's what I believed, but that is -- it is not true, and I acknowledge that.

MS. LINDA ROTHSTEIN: Doctor, you knew that wasn't true when you wrote that.

DR. CHARLES SMITH: No. No. When I got off the aircraft, if you had asked me about my flight, or would have -- what I would have told you because that was
my -- that was my understanding or my reaction.


MS. LINDA ROTHSTEIN: He repeatedly indicated to me that he believed SM to be guilty."

DR. CHARLES SMITH: That's -- I believe I heard what I wanted to hear on that -- he -- based on his complimentary statements about -- about the witnesses. And I now realize that that was, perhaps, better described as pleasantries in his conversation, so. Though -- though that was my interpretation, and I believe I came to believe my interpretation, I recognize that that is wrong, and I -- nd I'm terribly, terribly embarrassed by it."

Thirdly, and perhaps most serious, Smith repeated this admitted lie under oath in court and has therefore exposed himself to a prosecution for perjury.

He repeated the lie under at a preliminary hearing in 1994 when being questioned by the defence lawyer as to his scathing criticism of the pathologist who conducted the autopsy;

Here is the relevant evidence from yesterday's session of the Inquiry:

"MS. LINDA ROTHSTEIN: (Reading from transcript of preliminary hearing):
Q: But people have said that about you. They've alleged you've done
shoddy work, too.

A: That's absolutely true.

Q: Judges have said that about you. You've done shoddy work.

A: One (1) judge. I'm told by you, one (1) judge wrote that in his
submission. I don't know. I don't know what he wrote. That's Judge Dunn,
who prior to the -- hearing the defence experts, in fact, told me on more than
one (1) occasion -- private conversations -- how hasty he was with the work I had done and others had done, at the hospital."

(End of preliminary hearing testimony - back to yesterday's evidence):

Dr. Smith, you did know what Justice Dunn had said about you because you had read his reasons for a decision, had you not?

DR. CHARLES SMITH: Yes. By that time I would have, yes. Yes.

MS. LINDA ROTHSTEIN: You also knew perfectly well that Justice Dunn had never said on more than one (1) private occasion how hasty he was with the work that you or others had done at the hospital.

DR. CHARLES SMITH: That -- that's correct. I don't -- I don't remember this remark, or this statement about --

MS. LINDA ROTHSTEIN: Your testimony was untrue, sir.

DR. CHARLES SMITH: It was wrong.

MS. LINDA ROTHSTEIN: It was untrue, sir.

DR. CHARLES SMITH: Yes. It's a mistake, and I was wrong. Yes.

MS. LINDA ROTHSTEIN: You were under oath, Dr. Smith.

DR. CHARLES SMITH: And -- and I understand that, and -- and I made a mistake. I'm not sure why I made that mistake, but I made a mistake, and
it was wrong."

Why did Dr. Smith make up this elaborate lie?

Commission Counsel Rothstein asked Smith if he had persuaded himself that Dunn had made the comments because he felt the Dunn's decision had the power to unfairly expose you to criticism.

Rothstein also wondered if, as the years went on, he became concerned that the case would cast a shadow over his work;

But Smith appeared reluctant to articulate a motive for perjury out of his own lips, as he repeatedly conceded nothing more than being, "embarrassed".

This humble Bloggist is more interested in what the lies say about Dr. Smith than in whether he can be thrown out of the medical profession or prosecuted for perjury.

There's lots of time for that. (And it is not the purpose of the public inquiry to assign blame);

At the outset, he (Smith) did not hesitate to hesitate to slander a good judge who was in no position to defend himself.

Good, honourable people don't do that.

Especially good Christians who are supposed to cherish the truth.

He did not hesitate to mislead the governing body of his own profession - as he had done in Saskatchewan.

There is pattern here.

Doctors are supposed to be open and direct with the College because the College has been given the awesome responsibility of regulating the medical profession for the protection of the public.

If he is willing to mislead his own profession, why will hesitate to mislead the courts, the police or any other institution of government?

His defence - that this was not a lie - it was merely what he wanted to hear - is the ultimate evasion of personal responsibility.

If indeed, it was all a fantasy - something Dr. Smith wove together in his mind because he wanted it to be that way - we are then faced with serious concerns about Dr. Smith's mental health and sense of reality...

Harold Levy...hlevy15@gmail.com;