AFTERMATH: PART TWENTY; THE SUPREME COURT OF CANADA, THE GOUDGE REPORT AND DR. CHARLES SMITH;

An Osgoode Hall publication called "the Court" contains a recent article with the premise that if Ontario's pediatric forensic pathology system is over-hauled as a result of the Goudge Report, the Supreme Court of Canada will be relieved of considerable pressure.

The article by Rebecca Ross is entitled, "Inquiry into Pediatric Forensic Pathology in Ontario: How Justice Goudge Will Clear the SCC’s Decks," and is written by law student Rebecca Ross under the supervision of a law faculty member.

"Since the creation of TheCourt.ca, several posts have been written on decisions affected by the work of pediatric forensic pathologist Dr. Charles Smith (see, for example, R. v. Trotta, 2007 SCC 49)," the article begins.

"In light of the many complaints lodged against Dr. Smith’s work and the ensuing wrongful convictions, the Ontario government established an inquiry on April 25, 2007 into the province’s pediatric forensic pathology system," it continues.

"Last week, Commissioner Stephen T. Goudge’s 1,000-page Inquiry into Pediatric Forensic Pathology in Ontario was released.

In his thorough review of this system, spanning the years of 1981 to 2001, Justice Goudge reviews the practice and oversight of the system, describes its failings, and calls for sweeping reforms.

The full report can be purchased online at the Inquiry website.

This site is quite informative, providing links to transcripts, party submissions, and the policy and research papers commissioned by the Inquiry.

However, for the purposes of this post (and given that I am short of the funds, and time, to order and read the full document), I will briefly summarize the Commissioner’s public statement addressing the Inquiry’s findings.

Justice Goudge began his report recap by outlining the failings of Dr. Smith specifically.

Despite being a leading expert in his field, Dr. Smith described his own training as “woefully inadequate.”

His unmerited leadership arose out of necessity, according to Justice Goudge, because there was a troubling dearth of colleagues with similar pediatric expertise.

This led Justice Goudge to criticize Ontario’s pediatric forensic pathology system as a whole during the years at issue.

His report places blame on the system’s inadequate oversight and accountability mechanisms, as well as the failings of those who administered these mechanisms.

The crux of the report, however, is found in its 169 recommendations.

In his public statement, Justice Goudge expressed his hope that the suggested improvements will ensure that these failings are not repeated.

His proposed revamp rests on four cornerstones: 1) legislative change to address both the role of forensic pathology in death investigation and the proper organization of this system; 2) commitment to forensic pathology education, training, and certification in Canada, as well as a strong connection between service, teaching and research; 3) commitment to recruiting and retaining qualified forensic pathologists; and, 4) sustainable funding to grow the profession.

Beyond these foundational requirements, the report makes further recommendations.

First among these is the improvement of institutional arrangements to ensure appropriate and objective frameworks for oversight and accountability.

In addition, Justice Goudge supplies suggestions for the best practices to be followed in the autopsy suite, so that individual cases can be assessed more effectively.

Primary among these recommendations is the promotion of objectivity through an evidence-based approach.

With regard to the system’s contribution to criminal justice, characterized as the central function of forensic pathology, Justice Goudge’s report emphasizes the importance of communication between the pathologist and others involved in the field of criminal law.

Furthermore, Justice Goudge noted that other participants in the criminal justice system, including coroners, police, and Crown and defence counsel, also have a role to play in protecting the public against flawed or misunderstood pediatric forensic pathology.

The report also touches upon the importance of the judiciary in screening out unreliable forensic evidence; Justice Goudge characterized the court’s role as that of a vital gatekeeper.

A portion of the report’s recommendations focus specifically on wrongful convictions involving shaken baby syndrome and pediatric head injuries, reflecting Justice Goudge’s opinion that these types of cases require further review to restore public confidence.

According to Justice Goudge, this group of recommendations will ensure that this review will be conducted practically and efficiently.

As well, the report speaks to the unique challenges faced by First Nations and other remote communities, and attempts to rectify the poor delivery of forensic pathology services to these groups.

Finally, the Goudge Inquiry briefly broached the issue of compensation for those affected by the failures of the province’s pediatric forensic pathology system.

He admitted that he was not in a position to conduct a full examination of this issue, but, importantly, he urged the provincial government to create a viable compensation process.

He did note that the Inquiry was able to offer assistance to affected families by facilitating counselling services, and recommended that such assistance, where useful, should be continued over the next three years.

Justice Goudge concluded his public remarks on an optimistic note.

He expressed his hope that these recommendations will create a pediatric forensic pathology system that can best serve the needs of criminal justice.

Should they come to fruition, the recommendations in the Goudge Inquiry are likely to have a profound effect on the nature of the work undertaken by the Supreme Court of Canada.

A decrease in the amount of forensic pathology-related issues would likely translate into a reduced number of criminal law cases on the The Supreme Court’s docket, thereby allowing the court to turn its mind to other, neglected areas of the law.

In addition to sparing parents who have lost their children from the anguish of wrongful convictions, then, the Goudge Inquiry could pave the way for a more interventionist Supreme Court in areas beyond the scope of criminal law."

In the past this Blog has pointed out that the Supreme Court of Canada initially took a hands-off approach to cases involving Dr. Charles Smith.

This was particularly evident in the Mullins-Johnson case where the Supreme Court rejected William Mullins-Johnson's appeal in two sentences.

I am confident that this reluctance to dealing with cases raising serious questions about forensic pathology has changed - given the Court's decision in the Trotta case - referred to in the above article - and the public education process in recent years which culminated with the Goudge Report.

Unfortunately the ramifications of Dr. Smith's attack on Canada's criminal justice system will echo in the courts for years to come - through civil law-suits, possible class actions, numerous appeals to the Ontario Court of Appeal (I am aware of about ten of them), family court proceedings, and the possible outcome of criminal investigations.

The Globe and Mail certainly got it right when it described Dr. Smith as an earthquake who struck our criminal justice system time after time.

The justices of the Supreme Court must surely be aware that Dr. Smith's all too many victims were, to a large part, let down by this nation's courts.

Harold Levy...hlevy15@gmail.com;