Wednesday, October 1, 2008





Globe and Mail Justice reporter Kirk Mainis one of the few scribes who have covered the Goudge Inquiry from the outset.

His first story following release of the Goudge Report ran as follows under the heading: "Report blasts officials for shielding renegade pathologist."

"Top officials in the Ontario coroner's office spared no effort to shield a renegade pathologist – Dr. Charles Smith – as evidence began to grow that a litany of errors was causing a string of wrongful murder charges and convictions, the Goudge Commission reported Wednesday," Makin's story began.

"In a devastatingly-critical, 1,000-page report, Mr. Justice Stephen Goudge found that Dr. Smith's superiors – Chief Coroner James Young and Deputy Chief Coroner James Cairns – actively misled authorities and the public, willfully blinding themselves to the damage he was doing in child death investigations," it continued.

"When Dr. Young finally moved to restrain Dr. Smith, he said, “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. ... It is a graphic demonstration of how the oversight of pediatric forensic pathology could and did fail, almost completely.”

Judge Goudge called for a review of scores of cases in which pathologists reached a conclusion that a pediatric death was caused by Shaken Baby Syndrome.

His report also “urged” the Ontario government to set up a viable system of compensating those who have been wrongful charged or convicted because of pathology errors, and recommended that they be given free psychological counselling for three more years.

Public faith in the coroner's system was justifiably shattered by a chain of events that led to an undetermined number of wrongful convictions – and that a massive overhaul of the entire system is vitally needed, Judge Goudge said.

Before the report was released, Ontario Premier Dalton McGuinty said that he is looking forward to receiving it.

“A tragedy has unfolded here in Ontario and we're looking for ways to move beyond that and address the wrongs,” he told reporters. “I think there has been an understandable loss of confidence in our ability to deal with these things, so we need to turn the page.”

The $8.3-million inquiry was called after a team of experts determined that Dr. Smith had made significant errors in at least 20 cases he handled for Ontario's Office of the Chief Coroner. It held five months of hearings last winter.

Judge Goudge issued 169 recommendations – many involving enhanced funding and layers of institutional oversight – expressing the hope that an antiquated and deeply-flawed system will be brought into the modern age.

They include a major commitment to training and certifying forensic pathologists, recruiting existing pathologists, and providing sufficient salary to retain them.

Judge Goudge said that the coroner's system must replaced its discredited “think dirty” motto with a resolve to instead “think truth.”

He noted that under the leadership of Chief Forensic Pathologist Dr. Michael Pollanen, the OCCO has made aggressive moves to become more professional and accountable. “It is both commendable and heartening to see the winds of change blowing in the right direction,” he said.

The Commission report found that Dr. Smith was an accident waiting to happen. Judge Goudge found him to be guilty of poor judgment and unprofessional bias towards the Crown and police. The report described him as a “complex, multi-dimensional person” whose air of authority and charismatic qualities increased the danger that others would unquestioningly accept his poor and biased work.

The report also accuses Dr. Smith of lying in courtroom testimony.

“In some cases, he made false and misleading statements to the court,” it said. “These statements are troubling.”

Dr. Smith attempted to explain away his failings as not having been intentional, Judge Goudge said. “I simply cannot accept such a sweeping attempt to escape moral responsibility,” he said.

Judge Goudge was unrelenting in his criticism of the “woefully inadequate” supervision exercised by two top officials in the Ontario coroner's office – Chief Coroner James Young and Deputy Chief Coroner James Cairns – which enabled Dr. Smith to continue his reign of error for almost 20 years.

“Formalized oversight of Dr. Smith's pathology work was virtually non-existent,” Judge Goudge said.

He found that Dr. Young and Dr. Cairns went so far as to mislead senior Crown officials, police and their medical regulatory body. In one instance, Judge Goudge said, Dr. Young actually misled the College of Physicians and Surgeons while it was actively investigating Dr. Smith, sending the College a letter that was “not balanced or objective or candid” to endorse Dr. Smith's work.

This act carried considerable cost to “the public interest,” Judge Goudge said. “It was not a letter worthy of a senior public office holder in Ontario.”

The multiple human errors of judgment, self-protection and arrogance added up to an entire practice of forensic pathology that went “badly wrong” – with tragic consequences for many parents and care-givers who ended up behind bars for killings they did not commit, Judge Goudge said.

He said that, “completely inadequate mechanisms for oversight and accountability” gave Dr. Smith free rein to look for suspicious deaths where there was often a paucity of evidence to corroborate his theories.

The fact that Dr. Young and Dr. Cairns had no specialized training in pathology contributed to their failure, Judge Goudge said. “It meant that many of the problems the expert reviewers have no made so glaringly obvious did not shake their absolute faith in Dr. Smith until the very end, and after much damage had been done.”

The two senior managers were not just friends and admirers of Dr. Smith, he added, they also had a “symbiotic relationship” with him that virtually required them to prop Dr. Smith up as his inability to do his job became more and more evidence.

“They actively protected him and played a substantial role in the development of his career,” Judge Goudge said. “They found his growing profile in the field to be of benefit to the OCCO, and the OCCO had a vested interest in continuing to be able to use his services.”

Judge Goudge said that Dr. Young, in particular, was deeply worried that he could not replace Dr. Smith if he were to stop conducting autopsies. In addition, his growing international profile reflected well on the OCCO.

All of this overrode any concern Dr. Young should have had for the consequences of Dr. Smith's bungling, Judge Goudge said. “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. ... Finally, as the last act played out, Dr. Young continued to defend the indefensible in the name of saving the reputation of the OCCO.

“Dr. Young was the last to see the writing on the wall, and at the inquiry, he was left to say what he might have said with equal validity at many moments in the preceding decade: ‘I don't know why we didn't stop him doing everything at the time...I just don't know.' ”

Their institutional failings included no tracking of cases in the courts and no review of testimony by pathologist, Judge Goudge said. He added that while Dr. Smith was the primary reason for these tragedies, “but those charged with overseeing his performance cannot escape responsibility.”

Judge Goudge also had harsh words for the antiquated legislation that governs death investigations in Ontario. “It contained no recognition whatsoever of forensic pathology, the essential service it provides, or those who should be responsible for it,” he said.

He said thateven whenauthorities began to catch onto his misdeeds,Dr. Smith actively strove to frustrate those who were trying to oversee his work. He went so far as to make “false and misleading statements” to investigators from Ontario's College of Physicians and Surgeons, Judge Goudge said.

“At moments when the need for accountability and oversight might have become even more apparent to those in a position to do something about it, Dr. Smith was not above using deception to attempt to throw them off the trail,” Judge Goudge said.

He described Dr. Smith as a chronic procrastinator who was frequently sloppy, arrogant, disorganized, inconsistent, unwilling to consult with peers, and jumped to unwarranted conclusions. Dr. Smith wholly failed to understand the need for independence and objectivity, and sometimes expressed categorical opinions when they were unwarranted, causing police investigations to skew in a certain direction, the report said.

“His deeply held belief in the evil of child abuse caused him to become too invested in many of these cases,” Judge Goudge said. “As a result, the objectivity and self-discipline that must be the foundation of the expert's role proved to be beyond him.”

Dr. Smith's courtroom testimony was replete with failings, the report said: “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 form confusing to dogmatic.”

He was also unfairly dismissive of other pathologists, it said: “In several cases, Dr. Smith expressed opinions in court regarding other experts that were disparaging, arrogant and, most important, unjustified.

“There were instances where Dr. Smith offered opinions that were speculative, unsubstantiated, and not based on pathology findings,” it said. Judge Goudge noted that Dr. Smith even offered unscientific opinions or referred to his experience as a parent to bolster a shaky professional observation.

However, Judge Goudge refused to believe Dr. Smith's explanation that he was unaware that he should not speculate in a criminal case. “I do not see how pathologists can believe that, when there is no pathology evidence, it is open for them to speculate on what could have happened,” he said.

“He often ignored repeated requests for his reports even when he knew they were needed urgently by the criminal justice system,” Judge Goudge added. “He frequently blamed others for the delays. In three cases, Dr. Smith produced his report of a post-mortem examination only after the police had obtained a subpoena requiring him to bring his report with him to court.”

As a pediatric pathologist at Toronto's renowned Sick Children's Hospital, Judge Goudge said that Dr. Smith acquired almost instant credibility in spite of his lack of formal training in forensic pathology.

“His experience seemed unequalled, and his manner brooked no disagreement,” he said. “He was widely seen as the expert to go to for the most difficult criminally suspicious pediatric deaths.”

It was not as if top officials were unaware that Dr. Smith was causing problems, Judge Goudge added: “Throughout the 1990s, coroners, police officers and Crown counsel brought a litany of concerns about Dr. Smith's work practices to the attention of the OCCO.

“People complained repeatedly about Dr. Smith's failure to produce reports in a timely fashion, his unresponsiveness, his carelessness, and the in consistences between his written reports, his pre-trial comments and his sworn evidence.”

On the occasions that Dr. Young or Dr. Cairns did raise a few, importent questions, Dr. Smith was able to turn them aside effortlessly. Even after bizarre events in a particular case caused Dr. Cairns to lose faith in Dr. Smith's competence and honesty, his actions fell far short of addressing the problem.

In one case – involving a child named Paolo – Dr. Cairns bolstered Dr. Smith's erroneous and discredited opinions despite being unqualified to provide any view on the matter whatsoever, Judge Goudge said.

The fact that Dr. Smith worked in isolation, rarely seeking advice or consulting with colleagues, further insulated him from scrutiny, Judge Goudge said.

As the Smith case began to dominate headlines, he said, Dr. Smith's superiors showed more concern for the damage it was doing their office than for the consequences of criminal cases. Fearful of their worsening image, he said, they allowed Dr. Smith to retain his responsibilities and committee positions at the OCCO.

In the end, from the first time that a judge took Dr. Smith to task for his inadequacies - in a case involving a child known as Amber – it took another 14 years before the media and Dr. Smith's superiors sounded an alarm, Judge Goudge said.

He warned that Dr. Smith was far from alone in creating “a grave systemic problem” within the coroner's system. Many other pathologists were reaching similarly questionable conclusions at the time, and local hospital pathologists often had no experience with pediatric cases or forensic training, he said.

“Without correction of these systemic failings, these errors could well occur again,” Judge Goudge stressed. “They were not merely the isolated acts of a single pathologist which could be fixed by his removal.”

He also nodded in the direction of many pathologists who were justifiably leery of entering a field they knew little about, and where their conclusions could have dramatic consequences for individuals. “No other pathologists threw themselves into the challenging area of pediatric forensic pathology, untrained, quite the way Dr. Smith did,” Judge Goudge observed."