Wednesday, September 24, 2008


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.

Today's startling revelation is evidence by 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;

Justice Goudge must decide who he believes - the investigator or Dr. Young - in the report to be released on October 1;

For the benefit of our readers, I am re-running a post which set out both Ms. Mann's and Dr. Young's evidence - so the readers can make up their own minds.

The post, which ran on March 1, 2008 under the heading "Up-Date: Alarm Bells; Part One; Mann V. Young; An Evidentiary Conflict", was topped with two representative quotes from the evidence:






"The Goudge Inquiry has heard conflicting evidence as to whether then Chief Coroner James Young was aware of a 1991 decision in Amber's case in which Judge Patrick Dunn severely criticized Dr. Charles Smith's opinion in the case," the post began.

"Dr. Young testified that he was unaware of the decision when it was issued in 1991 and did not read the reasons until the inquiry commenced," it continued.

Ms. Mann, an investigator for the College of Physicians and Surgeons of Ontario told the Inquiry that she informed Dr. Young about the decision at a one-on-one meeting held in his office in the Coroner's building in Toronto on February 14, 1997.

The issue is crucial as Dr. Young has testified that he regarded the Amber case as "very serious" and that, in retrospect, "that information would have been "very useful".

It is also critical because one of the nagging questions at the Inquiry has been how Dr. Smith was able to continue performing his harmful work for the Coroner's office for so many years.

In an attempt to resolve this conflict, Dr. Young returned to the Inquiry on February 8, 2008, for further questioning.

For the assistance of our readers, I will lay out Ms. Mann's testimony - followed by Dr. Young's further evidence (February 8) on the issue.

Evidence of Ms. Michelle Mann on the issue:

MR. ROBERT CENTA: And what did you do to try and answer the questions that DM (the babysitter's father) had with respect to -- Dr. Young?

MS. MICHELE MANN: Well, I had reviewed the entire file and all the information contained in it and had four (4) -- I believe four (4) questions that were of concern; that DM had.

It was his questions that he had.

He was concerned with respect to Dr. Young's involvement in this matter.

So I planned a meeting with Dr. Young in order to discuss these four (4) issues.

MR. ROBERT CENTA: If you turn to Tab 18
20 in your binder, PFP152788, are these the notes of your meeting with Dr. Young?

MS. MICHELE MANN: Yes, they are.

MR. ROBERT CENTA: And it indicates that you met with him on February the 14th, 1997?


MR. ROBERT CENTA: Had you met with Dr. Young prior to this occasion?

MS. MICHELE MANN: No, not in a one-on- one meeting with him. No. I may have seen him at the College occasionally but...

MR. ROBERT CENTA: Had you ever met with (the) Chief Coroner of Ontario as part of an investigation before?


MR. ROBERT CENTA: Where did you meet him?

MS. MICHELE MANN: At his office in the Coroner's building.

MR. ROBERT CENTA: Was anyone else present during the meeting?


MR. ROBERT CENTA: Approximately how long did the meeting last?

MS. MICHELE MANN: It's hard to recall this long ago, but I would say it was not a brief meeting. I'd say roughly about forty-five (45) minutes, half (1/2) an hour, forty-five (45) minutes.


MS. MICHELE MANN: Possibly even as much as an hour. I don't think quite as long as an hour.

MR. ROBERT CENTA: What did you tell Dr. Young was the purpose of your meeting with him?

MS. MICHELE MANN: I told him that there were some questions that the complainant had about how his -- Dr. Smith's conduct had been during the -- the -- the investigation of Amber's death.

And when I initially met with him then I reviewed with him the -- the fact that this family had practically bankrupted themselves in efforts to defend their daughter; that several witnesses had been called from various locations around the world to testify for the defence, and that these opinions of these witnesses had been completely different from what Dr. Smith's findings had been and his analysis of the case.

And I also discussed with Dr. Young the -- Judge Dunn -- Justice Dunn's decision which had also been very critical of the actions of Dr. Smith in the investigation of Amber's death.

So all of these issues were discussed with him upfront as a means of putting some context into the meeting before these questions, contained on this document, were actually put to him.

MR. ROBERT CENTA: Other than the questions and the answers that you've recorded in your note, do you recall anything -- anything else that Dr. Young said to you during that meeting?

MS. MICHELE MANN: I remember that he felt very strongly that SM had killed this child, and I remember being surprised at that comment.

It was a very strong assertion that he believed she'd done it, and I was taken a little bit aback by that, given the Judge's decision.

MR. ROBERT CENTA: You indicated that you had referenced Justice Dunn's lengthy decision in your -- to Dr. Young?

MS. MICHELE MANN: Yes, that's correct.

MR. ROBERT CENTA: Do you know whether or not Dr. Young had read Justice Dunn's decision at the time you met with him?

MS. MICHELE MANN: I don't know if he'd read it.

MR. ROBERT CENTA: Was he aware of the fact of the decision when you met with him?

MS. MICHELE MANN: He didn't certainly seem surprised by any of the information I gave him. He didn't ask any further probative questions of me. I certainly got the impression that he -- this was not news to him.

MR. ROBERT CENTA: Did he ask you for a copy of the judgment during your meeting?

MS. MICHELE MANN: No, he didn't.

MR. ROBERT CENTA: Dr. Young was asked some questions about this when he testified on November 4, 2007. And on November 29th, 2007, at page 171 of the transcript, Mr. Sandler asked Dr. Young as follows:

"Now, you've indicated to the Commissioner that you [Dr. Young] were unaware of these reasons for judgment and did not read them back in 1991, and
indeed, had not read them until this Inquiry commenced, is that right?

DR. YOUNG: That's right; sadly but correct.

MR. SANDLER: Apart from reading the actual reasons for judgment themselves, did you ever become aware of two (2) facts; first of all, that a number of expert witnesses had testified for the defence in this Timmins' case?


Was that fact ever --


MR. SANDLER: -- come to be known by you?


MR. SANDLER: And did the fact ever -- ever come to be known, by you, before this Inquiry, apart from the acquittal, that Justice Dunn had been very sharply
critical of the Hospital for Sick Children and the methodology that was used in this case?

DR. YOUNG: No, the opposite. I mean, as I said, I had the reassurance from Dr. Smith, in fact, that Justice Dunn had changed his mind but never heard critic -- never heard of criticism of either the Hospital for Sick Children r Dr. Smith."

Mrs. Mann, how do you react to Dr. Young's testimony?

MS. MICHELE MANN: I don't believe it's accurate at all.


MS. MICHELE MANN: Because those facts were discussed with him in the context of my meeting with him in February of '97.

We had discussed the witness information, not in fine detail, but that there had been several witnesses -- recognized experts in the field of pathology -- who had disagreed strongly with Dr. Smith's position on the matter and that Justice's Dunn's decision had been quite critical. These were the main reasons why the -- the SM family came to the College in the first place. So he - -they were discussed with him.

Evidence of Dr. Young in response to Ms. Mann's testimony:

MR. MARK SANDLER: So you've been invited back to provide your comments on Ms. Mann's testimony?


MR. MARK SANDLER: What do you have to say about her recollection and your recollection of the February 1997 meeting?

DR. JAMES YOUNG: Thank you, Mr. Sandler.

The -- first of all, I'd like to put in context the -- the evidence that I gave the last time.

The review of this particular meeting was raised during my evidence.

I had not seen the -- any of the documents, nor discussed any of the matters with anyone prior to that, nor had I had any discussion about this meeting for ten (10) years.

So I was asked questions about it sitting here in the stand, the third or fourth day of my evidence.

So I had some recollection, but not as good a recollection.

This isn't the -- the best place to sit to get clarity of ideas and -- and refresh your memory, I can tell you.

I have had the benefit since then of -- of Ms. Mann's notes, and that certainly refreshes my memory of the -- the meeting considerably.

As soon as I saw the notes, the meeting became much more familiar to me.

The purpose of the meeting as far as I rem -- am concerned is that it was to answer the -- the issues surrounding the -- the three (3) main issues I would characterize as the ordering of the exhumation, the meetings that had taken place in Timmins, and the -- just a minute -- third issue that's in the notes is escaping me.

The ordering of the exh -- who orders the exhumation, the -- oh, the death certificate, the altering of the death certificate.

Those were the -- those were the issues that Ms. Mann was there to address.

Those are the issues that she wrote her notes on.

Those are the issues that she referred back in her correspondence to Mr. M about.

That was the purpose of the meeting, and that constituted the -- the overwhelming bulk of the -- of the meeting that took place.

The meeting was relatively brief. I -- I would estimate it to be probably somewhere around half an hour, but it was certainly less than an hour or three
quarters (3/4) of an hour, and it was -- it was not a lengthy meeting.

The main topic that we discussed at the meeting was, first of all, Ms. Mann was clearly not used to investigating anything to do with coroners or the Criminal Justice System.

She was an experienced investigator from the College of Physicians and Surgeons. I -- I knew her to be an investigator there, but she normally was looking into doctor's conduct and medical affairs.

This was an area that she was not familiar with, and we spent considerable amount of time discussing what a coroner was, what a pathologist was, how the Coroner's System fit or didn't fit into the Criminal Justice System, what everyone's roles were and what their responsibilities, and who did with -- what within the system.

We then went on and discussed the specifics of this particular case; the involvement of the SCAN Team, the release of the body, the subsequent call from Dr. Driver to me, my -- my role in -- in going to Timmins with -- with Dr. Smith.

And that part of the case, as I indicated in my earlier evidence, was the part of the case I was familiar with, and it was, in fact, my -- my last involvement with that particular case, so.

That was the -- during the course of that then we covered the issue of how death certificates are altered, and that they aren't altered by pathologists, they're altered by coroners; how exhumations are obtained.

And -- and I think the letter that she sent to -- both her notes and the letter that -- that she sent, fairly reflect that.

I believe this was the beginning of the conversation, and it was the -- the overwhelming bulk of the infor -- of -- of the conversation.

At some point during the conversation, I don't dispute the fact that there may have been discussion that -- that there was evidence that was contrary to Dr. -- Dr. Smith's.

I would have expected that there would -- that the evidence that was heard at the trial would be contrary to Dr. Smith because I'm not aware of any trial where other experts are called that agree with the Crown evidence. That defeats the point of -- of -- of calling evidence by the defence.

So the fact that people came and disagreed wouldn't surprise me and I'd certainly been told by Dr. Smith that -- that -- and I can't answer honestly whether it was one or two witnesses had come.

My impression was a couple of witnesses had been called and the main theme that they had explored was that there was no such thing as shaken baby and so they absolutely were in -- in contrast to what Dr. Smith had -- had given in evidence.

So, my belief at that time going into the meeting was that there had been evidence called that was contrary to Dr. Smith.

When I discussed it with Ms. Mann, I came out of the meeting believing exactly the
2 same thing, there had been evidence called that was contrary to Dr. Smith.

I have no recollection nor do I believe that any numbers that were used as to how many witnesses or that the discussion lasted very long -- the significant thing was, I didn't hear anything in that discussion that told me anything that I didn't already know and I already had formed the impression there was evidence contrary to Dr. Smith but she didn't say anything that -- that -- that gave me an idea that it was any greater.

On the issue of criticism of Dr. Smith, I was unaware, as I've given evidence, and I remain unaware until the preparation of -- for this hearing that there was this lengthy written decision by -- by Justice Dunn.

I would have been thinking that we were discussing, in fact, the acquittal of -- of Ms. M. from the point of view that there may have been a comment with some criticism because what I had been told by Dr. Smith was that there had been some criticism of him losing an x-ray.

And that had been an issue that we picked up and put into the pathologist's memo eventually.

So that very brief conversation with Ms. Mann, again, I went into the meeting knowing there had been criticism.

There was no specifics of criticisms mentioned.

The fact that there was criticism was mentioned.

And I came out of the meeting with the same impression I went into the meeting with. Yes, there had been criticism of Dr. Smith.

But I didn't come out of the meeting knowing there was a lengthy report from Justice Dunn; nor that the criticism was at the level; nor that there was criticism of the Hospital for Sick Children.

I -- in essence, we had a conversation where, in my mind, I didn't come out with any different impression than I did at the beginning of the conversation.

As for the -- as for the comment that I felt strongly that -- that Ms. M. was guilty, I have no recollection of saying that and it would be highly unusual and uncharacteristic of me to -- to phrase things in that particular way.

So I can't -- beyond -- beyond that, I don't know what I could say about that.

But, certainly, this -- this part of -- of any conversation was very much very protracted and not the substance of the meeting and took very, very little time and was ten (10) years ago and I note is not reflected in any way in any of the notes that were taken at the meeting.

MR. MARK SANDLER: Okay. Those are all the questions I have of Dr. Smith. Thank you.

Who will Justice Goudge believe?