AFTERMATH: PART THIRTEEN: CRITICAL COMMENTS: COLUMN; DEREK NELSON; LAW TIMES;

"IN THE JARGON OF THE CORONER’S OFFICE, THIS WAS “THINKING DIRTY,” BEING SUSPICIOUS OF FOUL PLAY WHEN A BABY DIED, AND IT WAS AN ATTITUDE THAT INFECTED MANY BEYOND SMITH.

JUSTICE GOUDGE SAID THAT WAS WRONG.

THE JOB OF A DOCTOR LOOKING AT BABY DEATHS IS TO BE DISINTERESTED, PROFESSIONAL, AND NOT TO TAKE SIDES."

DEREK NELSON: LAW TIMES;

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Derek Nelson's column in the Law Times ran on October 6 under the heading: "Queen's Park: This was ‘thinking dirty."

"The following excerpts from Justice Stephen Goudge’s report into how so many baby deaths were wrongly diagnosed catches the essence of the problem — and why it is never going to go away," the column began.

"Dr. Charles Smith, who misdiagnosed so many cases, believed that his role was to “make a case look good," it continued.

"He explained that the perception originated, in some measure, from the culture of advocacy that he said prevailed at the Hospital for Sick Children (SickKids in local parlance) at the time.

Most pediatric forensic autopsies in the Toronto area were conducted at SickKids on a fee-for-service basis by pediatric pathologists like Smith.

Goudge comments: “In the 1980s and 1990s, there was a misplaced emphasis on who would lead the practice of pediatric forensic pathology. The prevailing view in Ontario at that time was that pediatric pathologists were best situated to perform forensic autopsies on infants and children. As a result, expertise in pediatric pathology was emphasized over training and qualifications in forensic pathology.”

But there was another factor at work.

Goudge again: “In the early 1980s, there was a legitimate concern at SickKids that child abuse was under-reported, under-detected, and under-prosecuted. Dr. Smith was a part of that advocacy culture and perceived that his job, at least in part, was to reverse those trends.”

In the jargon of the coroner’s office, this was “thinking dirty,” being suspicious of foul play when a baby died, and it was an attitude that infected many beyond Smith.

Justice Goudge said that was wrong.

The job of a doctor looking at baby deaths is to be disinterested, professional, and not to take sides.

While the judge is right that this is the way it should be, in practice human beings are rarely so perfect as to totally divorce themselves from the broader environment in which they live.

Smith was part-and-parcel of the climate of his time, when there was an obsession with baby deaths and child sex abuse.

At SickKids, nurse Susan Nelles was charged for murdering four infants out of 43 deaths deemed suspicious.

However, the case was so flimsy the judge threw it out of court at the preliminary hearing.

Justice Samuel Grange then held an inquiry that went nowhere, the whole process absorbing several years of the early 1980s.

In the broader world, the 1980s and 1990s were also the time of the modern Salem witch hunts, where people who took care of children were sent to jail for supposedly committing horrendous crimes against them, many ritual or satanic in nature.

Many, if not all of those charged, were innocent. (Think Martensville, Manhattan Beach, the Orkney Islands and, I would argue, the Brockville 50 among a multitude of others.)

In many cases, public servants coached and led the children in their testimony against family, friends, and strangers.

The key point is that even professionals are subject to the fads and fashions of our time, or the “madness of crowds,” as one observer once put it.

Ombudsman André Marin’s look at the police oversight agency the Special Investigation’s Unit said the same thing in a different way when it criticized the submergence of the unit in a pro-cop culture where it doesn’t even enforce existing rules for investigations.

Both Goudge and Marin said the solutions were both legislative and bureaucratic, and many of their recommendations make sense at a micro level.

But one has to wonder about any macro impact.

Justice is the one policy field above all where government carries the can.

It appoints the judges and Crowns, hires the coroners and police, doles out the money for legal aid. Only the private practice lawyer representing his client is not government.

And yet the state, with unlimited power and authority within a sphere of its own — no nasty deregulation or private greed here — could not accomplish such basics as accurately determining the cause of a baby’s death or getting a police officer to give testimony to an SIU investigator in timely fashion.

The reaction of Attorney General Chris Bentley is telling.

He speaks of working with his “partners” in reaction to Goudge, again reinforcing this Liberal conceit that the players in the justice system are all independent agencies not accountable to the executive polity to which Bentley belongs.

For the SIU, Bentley’s big decision has been to sign a memorandum that further divorces the agency from responding to government oversight, the opposite of what is needed.

It was Justice Patrick Dunn who blew the whistle on Smith and others back in 1991.
It was the media who reported it.

It was the political level that, for fear of the smear charge “political interference,” ducked responsibility for finding out what was going on in the coroner’s office long after it became clear there were problems.

Where is there any indication in Bentley’s reaction that anything has changed at the top?"

(Derek Nelson is a freelance writer who spent 19 years at Queen’s Park);

Harold Levy...hlevy15@gmail.com;