JUSTICE GOUDGE'S FINDINGS; PART TWO: NICOLAS' CASE; (3); MAURICE GAGNON'S COMPLAINT TO SOLICITOR GENERAL TSUBOUCHI; (FIRST PART);

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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An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.

Nicholas was the child of Lianne Gagnon and Steven Tolin.

Nicholas died on November 30, 1995, in Sudbury.

Nicholas was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.

The proceedings concluded on March 25, 1999 when the society withdrew the protection application;

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Justice Stephen Goudge ruled in his report that: "Mr. (Maurice) Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the Chief Coroner's Office were legitimate. Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."

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Maurice Gagnon's complaint to Solicitor General David Tsubouchi, dated March 6, 2000, began as follows:

"Dr. James Cairns is, of course, the Deputy Chief Coroner of Ontario. His duties include the investigation of pediatric deaths in this province. He is also the Chairman of the Pediatric Death Review Committee. This is a position of power and authority with an inherent requirement for objectivity and non-prejudice. Unfortunately, for us, Dr. Cairns' quest to eradicate all child abuse in Ontario, has clouded his judgement, impaired his objectivity, and compromised the very integrity, and credibility, of the Office of the Chief Coroner. In the words of Justice L. Gauthier, who reviewed all of the evidence in this case, the investigation of the death of Nicholas Gagnon was "flawed" - a kind understatement."

"The facts of this investigation, and the subsequent persecution of my daughter, Lianne Gagnon-Thibeault, clearly demonstrate Dr Cairns' prejudice in the investigation of unexplained infant deaths. Because of his assumption of guilty until proven innocent, it is my contention that Dr Cairns, in his investigation of Nicholas' death,

Was negligent in fairly reviewing and assessing the actual facts of this case.
Was unduly and singularly influenced by the unsustainable opinion of his pathologist, Dr Charles Smith.
Did selectively ignore protocol and policy.
Did purposely mislead enforcement authorities.
Did demonstrate a reckless disregard for the consequences of his actions," it continued;

Dr. James Cairns: Investigator;

Webster defines "investigation" as: "a detailed examination or search, often formal or official, to uncover facts and determine the truth."

Postmortem Findings:

You now know, what the family always knew, that Nicholas' death was not "caused" by anyone. The postmortem examinations, including two autopsies, revealed no indications of violence or abuse, no injuries. He did have swelling of the brain, which, according to qualified experts, was only as much as may be expected from the process of dying.

Dr Smith, under Dr Cairns' auspices, hypothesized that Nicholas' death was "attributed to blunt head injury". His assumptions were based on suspected, inflicted Cerebral Edema supported by: (Exhibit 4)

Increased Head Circumference (caused by swelling of the brain.)
Widely Split Skull Sutures on Radiography
Fracture of the Left Side of the Mandible on radiography.
Scalp Injury (slight bump from his injury under the table)

1 - Increased Head Circumference

In a personal meeting with Dr Cairns, he told me that Nicholas' head size was compared against a standard chart for the "Head Circumference for Boys". The autopsy measurement of 49cm was over the "average" size.

Using medical records, it was later shown that Nicholas' head size, in life, was in the top 98 percentile, on that very chart - His head size at the time of his death was 49cm.

Dr Cairns knew that any chart with a "average or mean" implies lower and higher values within the limits of that chart.
As a licenced pediatrician, Dr Cairns knew that medical records would contain actual head measurements in life.
Nicholas' medical records were obtained from the family doctor by the Sudbury Regional Police under a warrant signed January 31, 1997.
As a scientist, Dr Cairns knew that the comparative data in this case was totally empirical, lacking in basic scientific principle.

The emphasis on "head size" was later abandoned and substituted with "brain weight", which of course was above the "normal average". Logically, and obviously, a heavier brain will accompany a large head.)

NOTE: The new baby (the object of the CAS frenzy) has a head size in the 102 percentile - according to the chart for girls. Using Dr Smith's logic, she necessarily has severe cerebral edema and should be dead.

Why didn't Dr Cairns, as the investigator seeking the "truth", ask for the medical records from the family doctor???

INVESTIGATOR (con't)

2 - Widely Split Skull Sutures

Dr Chen, who conducted the first autopsy, did not observe "widely split" skull sutures.

Dr Milner, who reviewed the original x-rays at the first autopsy did not see "split" sutures. Dr Paul Babyn (Hospital for Sick Children) reviewed copies of these x-rays, and informed Dr Cairns, in a letter dated January 13, 1997,(Exhibit 5), that "the skull shows mild diastasis of the coronal and sagittal sutures" ie mild opening.

Dr Cairns nonetheless preferred Dr Smith's exaggeration that the sutures were "widely split", which supported the theory of death due to severe cerebral edema, caused by "blunt force" injury to the head. (Exhibit 12 - items 16,34,62)

The Police repeatedly quoted the "widely split sutures" statement as justification for the homicide investigation.

NOTE: After reviewing all the forensic and pathological evidence, including the original x-rays, Dr Halliday concluded : "I would consider the sutures to be within normal limits. There is no evidence of widely separated sutures, as has been suggested previously." (Exhibit 23)

Dr Case stated: "I would not attribute this death to a head injury as there are no findings on which to make such a conclusion". (Exhibit 24)

Why didn't Dr Cairns , if , in fact, he was seeking the truth, question Dr Smith's exaggeration on the condition of the skull sutures, in light of Dr Babyn's letter??

3 - Fracture of the Left Side Mandible

In his letter of January 13, 1997, to Dr Cairns, Dr Babyn reported a possible fracture of the "left mandibular condyle" ie jaw. He also complained of the poor quality of the copies of the X-rays.(Exhibit 5)

After reviewing the original x-rays, Dr Babyn felt that "the mandibular changes were more likely due to technical artifact".

Dr Babyn was not asked to produce a written report of this observation.

Dr Chen and Dr Milner reported no bone damage at the original autopsy, therefore no fractured jaw.

Investigator (con't)

The "broken jaw" hypothesis was used as suggestion of physical abuse, which supported the theory of "blunt force injury to the head" (Of course there never was any damage to the jaw)

Dr Cairns totally dismissed Dr Chen's and Dr Milner's opinions in favour of Dr Smith's allegation of a "fractured jaw".
Dr Cairns ignored Dr Babyn's opinion after his review of the original X-rays.
Dr Cairns ignored the doubts expressed by the police about the very existence of a fractured jaw.
Dr Cairns used the "possible broken jaw" as justification for an exhumation, along with the "above average" brain weight.(Exhibit 12 - item26)

Why would Dr Cairns totally ignore Dr Chen and Dr Milner in favour of Dr Smith's speculations?
Why didn't Dr Cairns request a follow-up written report from Dr Babyn, after he had reviewed the original x-rays?

NOTE: It is important to remember that Dr Chen, who did the original autopsy, is a reputable pathologist, having done some 3000 autopsies, including some 100 murder cases.

Dr Cairns will claim that Dr Chen didn't follow a newly prescribed protocol for child autopsies. Allowing this to be fact, a regular autopsy by this reputable and highly qualified pathologist would have discovered something as obvious as a "broken jaw".

4 - Quality of the Evidence

Dr Cairns knows that Dr Smith has a background in anatomic pathology. Dr Smith is not a neuropathologist, nor, in fact, is he a certified forensic pathologist.

All of Dr Smith's opinions and allegations in this case were of a neurological nature. Although not indicated in his original autopsy report, Dr Smith later claimed to have consulted with a Dr Venita Jay, a neuropathologist at HSC.(Exhibit 12 -item 60)

Dr Jay, however, has no record, nor recollection of such a consultation.

Dr Cairns never questioned that Dr Smith might be beyond the limit of his expertise.
Dr Cairns blindly accepted Dr Smith's neurological allegations.
Dr Cairns never requested the opinion of a qualified neuropathologist.

Allowing that this alleged (cursory) consultation did, in fact, occur:

Why did Dr Cairns not request a written report from Dr Jay, as is required under Section 28(2) of the Coroner's Act
Given the seriousness of these allegations, why did Dr Cairns, at the very least, not seek "expert" confirmation ???

Investigator (con't)

5 - Second Autopsy

Dr Smith reported no fractured jaw - no bone damage - no soft tissue damage (Exhibit 7) In other words - no evidence of any trauma or abuse.

Dr Smith did report what he claimed to be two new findings, which he took as vindication of his "blunt force injury to the head".

"Hemorrhagic discoloration of the right parietal bone"

"Hemorrhagic discoloration along the skull sutures."

Both Dr Halliday and Dr Chen claimed that these "discoveries" were nothing more than post-autopsy artifacts. (Exhibits 9 & 13). (This opinion was later supported by Dr Case)

Dr Cairns dismissed both these opinions.(as being non-sustainable)
Dr Cairns refused to consider that an experienced pathologist like Dr Chen would not miss such an obvious finding during the original autopsy (in the presence of a police officer)
Dr Cairns never questioned why these 'injuries" were not recorded on the original X-rays.
Dr Cairns, the physician and scientist, never questioned why there was no ancillary evidence to support an injury to the "right parietal bone"

Why was Dr Cairns so eager to accept this "confirmation" of child abuse ???
With all the contradictory opinions, and the speculative nature of Dr Smith's conclusions, why didn't Dr cairns, as the Investigator seeking the "truth", ask for an independent review by a qualified neuropathologist at this point - especially in light of the seriousness of the allegation ???

NOTE: It wasn't until Dr David Chiasson, Chief Forensic Pathologist for Ontario, became aware of this travesty in late 1998, that an independent review was requested. In January, 1999, Dr Chiasson asked Dr Mary Case, ME for St Louis, MO, and expert in child abuse cases, to review Dr Smith's findings and conclusions.

Dr Case totally disagreed with Dr Smith's conclusions (Exhibit 24) and went so far as to deem Dr Smith's conclusions to be "irresponsible" (Video).

Dr James T. Cairns: CHAIRMAN OF THE PEDIATRIC DEATH REVIEW COMMITTEE

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Pediatric Review Committee

This committee serves as an expert review panel to investigate complex medico-legal cases. Dr Cairns, as Chairman, determines which committee member will undertake the initial review of the case, and that member (in this case, Dr Smith) then presents the case to the committee for discussion, before a final report is issued by the committee as a whole.

After Dr Smith produced his "Consultation Report", speculating that Nicholas had died as a result of "blunt head injury", Dr Cairns arbitrarily decided that this case would not be presented to the Pediatric Review Committee for discussion and review. (Exhibit 12 -item19)
Dr Cairns ignored prescribed protocol, demonstrating reckless disregard for the ramifications of such a serious and arbitrary accusation.
Based solely on Dr Smith's contradictory interpretation of existing forensic material (there were two opposing opinions at this point), Dr Cairns requested that the police initiate a homicide investigation

Why did Dr Cairns condemn Dr Chen for not following prescribed protocol, and then blatantly disregard his own protocol, as the Chairman of the Review Committee ???
Why was Dr Cairns reluctant to present Dr Smith's speculations for discussion by the Pediatric Review Committee ???
Did Dr Cairns know that an objective panel would not have supported a homicide accusation, based on this pure speculation ???
Why did Dr Cairns so badly want Nicholas' death to be a homicide ??
At the very least, why didn't Dr Cairns seek the opinion of Dr David Chiasson, Chief Forensic Pathologist, located in the same building ???

Maurice Gagnon's letter to Tsubouchi, dated March 6, 2000, was an opportunity for the Ontario Government to take action, review Dr. Smith's work, and rein him in before he caused even more harm.

This, of course,was not likely, in a ministry in which then Chief Coroner Dr.James Young, Dr. Smith's protector, was also Assistant Deputy Solicitor General;

Next Post: Maurice Gagnon's complaint to Solicitor General David Tsubouchi; Second Part;

Harold Levy...hlevy15@gmail.com;