JUSTICE GOUDGE'S FINDINGS: PART ONE; AMBER'S CASE; (1) SMITH;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;

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As set out in an overview report prepared by Commission staff:

Amber was born in Timmins, Ontario on March 13, 1987. Amber was the child of Frances and Richard. Amber died on July 30, 1988, at the age of 16 months at the Hospital for Sick Children in Toronto.

Criminal proceedings were initiated against Amber's 12 year-old babysitter SM. SM was charged with manslaughter on December 15, 1988. Her trial commenced on October 15, 1989. There were 30 hearing days over the next 13 months, and the trial concluded on November 6, 1990.

On July 25, 1991, Justice Patrick Dunn acquitted S.M.

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Justice Goudge indicates that "almost all of Judge Dunn's criticisms (of Smith's forensic analysis and approach) have withstood the test of time."

Justice Dunn ruled after a lengthy trial that Dr. Smith lacked objectivity, failed to investigate thoroughly all relevant facts, neglected to keep adequate records of his work and findings, lacked familiarity with the relevant scientific literature, and was dogmatic and unequivocal in his evidence evidence without informing the judge or jury that his opinion on the topic was in any way controversial;`

Justice Goudge also finds that Smith "actively thwarted" a College of Physicians an Surgeons of Ontario investigation by telling the College a lie - that Judge Dunn had repeatedly told him that he believed the babysitter was guilty);

In Justice Goudge's view: "Most of the weaknesses that Justice Dunn identified in Dr. Smith's forensic pediatric pathology reappeared in Dr. Smith's work in criminally suspicious deaths over the next decade. Justice Dunn's judgment proved to be prophetic;"

Failure to obtain relevant information:

Justice Goudge refers to Smith's failure to consult with pediatric radiologist and neurosurgeon before concluding that a head injury had caused Amber's death and that the babysitter had caused it by shaking Amber.

Moreover, he agreed Judge Dunn's criticism that: "Because he did not consult with the physicians, Dr. Smith did not order a full skeletal survey or a histological analysis of the subdural blood that could have shed light on the alleged fall. Moreover, had the SCAN physician obtained a better history of the alleged fall and had Dr. Smith obtained a more detailed history from her, he might have examined more closely several bruises that he dismissed as trivial."

Failure to properly document the samples he took and the exhibits he collected during the post-mortem examination:

(The source of certain histology blocks was unclear)

"In my view, Dr. Smith ought to have known of the importance of recording properly the samples and exhibits he collected. It is just common sense," he ruled.

"Particularly in criminal suspicious cases, failure to document the samples properly may not only hinder the reviewability of the case but also interfere with the on-going death investigation and impair subsequent criminal proceedings."

Misdiagnosis of a head injury:

Dr. Smith attributed the injury to "Shaken baby syndrome" on the basis of the so-called triad of pathological indications.

He pointed out, for example, that Smith should have detected autopsy findings which indicated that there was "clear-pathology evidence of a blunt-impact - not a shaking - head injury," - and that "Dr. Smith wrongly diagnosed SBS on the basis of the triad, when, in fact, the triad, as traditionally understood was not present at all."

Failure to account for contradictory evidence in arriving at his opinion and to consider adjusting his opinion to take new information into account.

"These failures contributed to misdiagnoses with significant consequences," he said.

Failure to record a consultation:

Justice Goudge referred to Smith's failure to record a consultation he claimed he had had with a U.S. expert in his post-mortem report.

Had he informed the prosecutor about the alleged conversation, she may have been prompted to call this person as an expert witness;

Offering unscientific evidence:

(Telling a personal anecdote to buttress his conclusion that short household falls by children are not fatal);

Justice Goudge: He told the Court that he was the father of a young girl and a young boy. He had watched his children"tumble" down the stairs. What his children needed after the fall was a little "cuddling, a little loving, kissing whatever part of (his) son or daughter's body may have been injured, looking for a bruise which may show up with time or swelling which may occur."

Justice Goudge called this "unscientific" and "inappropriate."...

"His suggestion that low-level falls cannot be fatal because his own children were "happy and healthy" was not only unscientific, but illogical. Simply because his own children had not died from a fall down the stairs dies not mean that no child could die from such a fall," Goudge said."

Frustrating the oversight process:

"Simply put, Dr. Smith actively mislead those who might have engaged in meaningful oversight of his work. When senior officials at the (Chief Coroner's Office) raised concerns about his conduct in several of the cases examined by the Commission, Dr. Smith did not respond candidly. Similarly, when the (College of Physicians and Surgeons) investigated complaints about his conduct in the cases of Amber, Nicolas and Jenna, he made false and misleading statements. Dr. Smith's misrepresentations frustrated any meaningful oversight that the two institutions might have offered. His attempts to mislead spanned his entire career as director of the Ontario Pediatric Forensic Pathology Unit and continued even after he resigned from the position."

Misrepresentations about Justice Dunn:

"I reject Dr. Smith's explanation...Instead, 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."..."This sorry episode offers a very unflattering insight into Dr. Smith's credibility."

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Harold Levy...hlevy15@gmail.com;