AFTERMATH: PART EIGHT: CRITICAL COMMENT; LAWYER PETER WARDLE IN OTTAWA CITIZEN;

"THIS INQUIRY WAS NOT REALLY ABOUT CHARLES SMITH. IT WAS ABOUT REFORMING THE SYSTEM THAT ALLOWED HIM TO OPERATE THIS WAY FOR SO LONG. MY CLIENTS WILL TEST THIS REPORT AGAINST ONE STANDARD: WILL IT PREVENT OTHERS FROM LIVING THROUGH WHAT HAS HAPPENED TO THEM? ASSUMING THE PROVINCE MOVES SWIFTLY TO IMPLEMENT THESE RECOMMENDATIONS, THE ANSWER IS A RESOUNDING "YES.""

LAWYER PETER WARDLE;

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Toronto lawyer Peter Wardle played a major role at the Goudge inquiry as counsel for a group of "affected families."

Wardle has set out his views onthe Goudge Inquiry report in an article which appeared Thursday in the Ottawa Citizen under the heading "Not just Dr. Smith."

"Justice Stephen Goudge released a final report that will surprise no one who followed the Inquiry Into Pediatric Forensic Pathology," Wardle's article begins;

"The report is hard-hitting, far-reaching, and thorough," it continues.

"Judge Goudge has made extensive recommendations which, when implemented, will reinvent the way forensic pathology is carried on in the province.

For people like the clients I was fortunate to represent at the inquiry, the report will be welcomed.

As expected, Judge Goudge excoriates discredited pathologist Dr. Charles Smith.

He describes Dr. Smith as lacking basic knowledge about forensic pathology; characterizes his autopsy practices as "sloppy," "careless" and "inconsistent"; criticizes his "bald conclusions" as being without "elaboration of either a reasoning process or supporting literature that might provide a persuasive connection between facts and conclusion."

He notes that in many cases reviewed by the inquiry his opinions were "fundamentally wrong."

Judge Goudge flatly rejects Dr. Smith's assertion at the inquiry that his failings were never intentional, stating "I simply cannot accept such a sweeping attempt to escape moral responsibility."

Of particular interest to me is Judge Goudge's examination of the cases of children named Sharon and Jenna, where my clients were charged with murder as a result of Dr. Smith's opinion.

Sharon's case involves a Kingston woman, Louise Reynolds, charged with murder of her daughter as a result of Dr. Smith's conclusion that Sharon died as a result of multiple stab wounds.

Judge Goudge accepts that Dr. Smith's conclusions were wrong, and that Sharon died as a result of a dog attack.

He describes Dr. Smith's errors in Sharon's case as "basic," noting that he lacked the necessary forensic pathology training to take the case on, but did so anyway, with "catastrophic" results.

Judge Goudge describes in detail Dr. Smith's many shortcomings in this case, including his misleading and devastating testimony at Ms. Reynolds' preliminary inquiry that "As absurd as it is to think that a polar bear attacked Sharon, so is it equally absurd that it's a dog wound."

In Jenna's case, a Peterborough woman, Brenda Waudby, was also charged with the murder of her daughter.

Dr. Smith had concluded that Jenna's fatal injuries took place between 24 and 48 hours before her death, when Ms. Waudby had exclusive control of her.

Dr. Smith's opinion was later discredited by other experts, who concluded that the child must have died within a few hours of the fatal injuries being inflicted.

A reinvestigation by the police led to the conviction of a babysitter.

Judge Goudge notes Dr. Smith's many failings in this case, including his failure to conduct a complete sexual assault examination, his inexplicable failure to submit a hair seized at autopsy for forensic analysis, and his flawed reasoning in interpreting the timing of Jenna's multiple abdominal injuries.

Most important, he concludes that Dr. Smith's opinion was influenced by irrelevant information about Ms. Waudby's alleged bad character.

Judge Goudge's probing search for answers also led beyond Dr. Smith to the people in charge of pediatric forensic pathology at the Office of the Chief Coroner of Ontario at the time: specifically Chief Coroner James Young and Deputy Chief Jim Cairns.

Judge Goudge was unsparing in his criticism of both.

What he described as a "decade of inaction" is laid out in detail: an inadequate oversight structure; lack of any specialized training in those reviewing Dr. Smith's work; a close personal relationship with the person being reviewed; and their preoccupation with adverse publicity rather than the quality of death investigations.

Judge Goudge focuses on two factors in particular that may help explain the astonishing lack of oversight by the OCCO in the Smith years.

The first is what he described as a "symbiotic relationship" between Dr. Smith and the office that compromised the objectivity vital for effective oversight.

The OCCO played a substantial role in the development of Dr. Smith's career and had a vested interest in his services in the small, but critically important world of pediatric forensic pathology.

As we put it in our closing submissions, "they needed him and he needed them."

The second was the shared commitment all three men had to the "think dirty" approach -- i.e., approaching every sudden and unexpected child death with a high index of suspicion to possible child abuse -- which grew out of a legislative concern that child abuse needed to be combated vigorously.

For example, Dr. Cairns, an advocate of this approach, supported Dr. Smith's opinion in several of the controversial cases examined by the inquiry by giving his own supporting opinion, even though he was not qualified to do so.

Lawyers call this "noble cause corruption" -- where the nobility of the cause (detecting child abuse) blinded Dr. Cairns to the inappropriateness of his actions.

The commissioner's recommendations call for a complete overhaul of the death investigation process in Ontario, with a new Governing Council responsible for both forensic pathology and the coronial system; a new legislated position for the "chief forensic pathologist"; a complaints mechanism with teeth; an accreditation system; enhanced peer review; a series of "best practices" governing autopsy procedures; and more.

There are also recommendations regarding communications between forensic pathologists and other participants in the justice system, a common failure in the Smith years.

And Judge Goudge hasn't spared his colleagues either; his report makes recommendations regarding how judges should change their approach to pathology evidence.

Finally, Judge Goudge has opened the door to the province considering compensation for those who suffered through the tragic events that led to the inquiry.

This inquiry was not really about Charles Smith.

It was about reforming the system that allowed him to operate this way for so long.

My clients will test this report against one standard: will it prevent others from living through what has happened to them?

Assuming the province moves swiftly to implement these recommendations, the answer is a resounding "yes."

Harold Levy...hlevy15@gmail.com.