Wednesday, October 1, 2008



Context: Amber’s case: On Dr. Smith’s explanation to the College of Physicians and Surgeons of Ontario that Justice Dunn “repeatedly indicated” to him that Amber’s babysitter guilty: “I find Dr. Smith’s statement…”entirely self-serving and intended to mislead. I find that the explanation he provided at the Inquiry was an attempt to defend the indefensible: that he had fabricated the content of a conversation with the trial judge.”

Context: Amber’s case: While rejecting Dr. Smith’s evidence that he heard what he wanted to hear: “I conclude that Dr. Smith knowingly fabricated two stories about a provincial court judge in an attempt to mislead the CPSO (College of Physicians and Surgeons” and the OCCO (Ontario Chief Coroner’s Office) and protect himself and his reputation This sorry episode offers a very unflattering insight into Dr. Smith’s integrity.”

Context: On the “candour” of Dr. Smith’s evidence under oath in court proceedings: “Finally, Dr. Smith did not always testify with the candour required of an expert witness. In some cases, he made false and misleading cases to the court…(Justice Goudge gives examples from Dustin’s case and Sharon’s case); “These examples are troubling. It goes without saying that an expert witness giving evidence under oath should do so with complete candour and honesty. False and misleading statements should form no part of an expert witness’s evidence.”

On the problems with Dr. Smith’s testimony “that permeate many of the cases examined by the Commission: “They ranged from his misunderstanding of his role, to his inadequate preparation, to the erroneous or unscientific opinions he offered, and perhaps, most important, to the manner in which he testified, which ranged from confusing to dogmatic.”

On Dr. Smith’s excuse that he did not intend to hinder or obstruct defence lawyers by not responding to their experts request for forensic materials for independent testing: “I do not accept Dr. Smith’s explanation that he did not understand the importance of his cooperation because of a naivety about the justice system. He repeatedly portrayed himself publicly as a knowledgeable and experienced participant in that forum.”

More specifically, in the context of his failure to cooperate with attempts to locate materials from Valin’s case (Mullins-Johnson) so they could be reviewed by another pathologist: “Dr. Smith’s actions in that case represent one of the starkest examples of his complete disregard for reasonable requests made by Crown counsel and another pathologist…Suffice it to say that there was absolutely no justification for Dr. Smith’s callous disregard for the requests made by Dr. Rasaiah and Crown counsel.”

On Dr. Smith’s efforts to avoid accountability: “Simply put , Dr. Smith actively mislead those who might have engaged in meaningful oversight of his work…His attempts to mislead spanned his entire career, as director of the OPFPU (Ontario Pediatric Forensic Pathology Unit) and continued even after he had resigned from the position.”

On Dr. Smith’s submission that the mistakes in which he erred constituted only a small fraction of his overall workload; “Nonetheless, the fundamental result of the review was that five world-renowned experts all took serious issue with Dr. Smith’s work in 20 of his cases. These cases were among his most difficult. But they were also among his most important because they were cases where serious criminal charges were at stake for individuals and where the criminal justice system had relied, often fundamentally, on his professional abilities.”

On the oversight role played by former Chief Coroner Dr. James Young, and Deputy Chief Coroner Jim Cairns: “Thus the story of failed oversight in Dr. Smith’s years is in large part the story of Dr. Young’s and Dr. Cairn’s failures and of the context in which that happened – the completely inadequate mechanisms for oversight and accountability;"

On the letter drafted by Dr. Smith’s lawyers which Dr. Young sent under his signature to the College endorsing Dr. Smith’s work: “Dr. Young’s letter mislead the (College); Based on this letter, its recipient, the investigator, assumed that the (Chief Coroner’s Office) had no concerns about Dr. Smith’s incompetence or performance. Dr. Young told the Inquiry that he sent this letter in an attempt to be fair to Dr. Smith. He did so, however, at a cost to the public interest. Coming as it did after the long series of incidents described above, the letter was not balanced or objective or candid. It was not a letter worthy of a senior public office-holder in Ontario.”

On Dr. Young’s responsibility for the collapse of the pediatric forensic pathology system under his leadership: “At first, as the storm clouds gathered, Dr. Young was guided more by his concern that, for the sake of the (Chief Coroner’s Office), Dr. Smith’s services had to be continued than by whether those services were providing deeply flawed forensic pathology. As the end neared, Dr. Young was more concerned with the possibility of the adverse publicity that Dr. Smith might bring to the (Chief Coroner’s Office) than about the possible impact of Dr. Smith’s shortcomings on the (Chief Coroners’ Offices’) responsibility for high quality death investigations. He gave no thought to whether the office might have played a role in past wrongful convictions as a result of Dr. Smith’s work. Concerns about the (Ontario Chief Coroner’s Office’s) reputation, while valid, cannot stand in the way of the paramount imperative of ensuring high quality death investigations.”…In the end, as Chief Coroner, Dr. Young must bear the ultimate responsibility for the failure of oversight. As he took on additional positions in the government he proved unable to exercise the authority of the Chief Coroner’s position he already held: to ensure vigilant oversight of Dr. Smith. When he finally did act, it was to protect the reputation of the office, and not out of concern that individuals and the public interest may already have been harmed. Sadly, the de facto oversight of Dr. Smith that resulted was far too little, far too late.”