JUSTICE GOUDGE'S FINDINGS; PART TWO: NICHOLAS' CASE; (4); MAURICE GAGNON'S COMPLAINT TO SOLICITOR GENERAL TSUBOUCHI; (SECOND 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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The second part of Maurice Gagnon's complaint to Solicitor General David Tsubouchi began as follows, under the heading: Deputy Chief Coroner For Ontario;

"Law enforcement agencies, such as the police and the CAS, rely on the guidance of the Chief Coroner's Office in the course of investigations. If there are contradicting medical opinions, these agencies accept that the Coroner's Office as the final authority, which will dictate their course of action."

"These agencies, as well as the public at large, trust that the Coroner's Office has the expertise, or will seek the expertise, to make an informed and objective decision, before acting" it continued.

"If this information is wrong, leading to a miscarriage of justice, the Police and the CAS will simply claim "doing their job in good faith", based on information provided by the Coroner's Office.

Legislation, under the Coroner's Act, then protects the perpetrators of this false information from redress. Quite simply, there is no accountability for ruining innocent lives, nor for recklessly expending hundreds of thousands in public funds pursuing these unfounded allegations.

Responsibility

As Deputy Chief Coroner, charged with the investigation of pediatric deaths, Dr Cairns would (should) gather all possible evidence and related information, evaluate each piece of the data, carefully weigh the consequences of his decision against the sustainability of the evidence - all this before stating his opinion as to the cause of death.

The pathologist is (should be) but a resource, a consultant in this review process - not the entire investigation. In this case, Dr Cairns supported everything and anything submitted by Dr Smith, refusing to even consider other opinions;

In this case, Dr Cairns totally abrogated his responsibility to "investigate" and readily accepted Dr Smith's conclusions at face value.

Dr Smith's opinions:

"In the absence of an alternate explanation, the death of this young boy is attributed to blunt head injury" - Jan 24/97
"In my opinion, the cause of death was Cerebral Edema (consistent with blunt force injury)" - Aug 6/97
"I believe that the edema of Nicholas' brain, not being caused by natural disease, could have been caused by trauma." - June 29/98
"In the absence of a credible explanation, Nicholas' death must be regarded as non-accidental in nature".- "I cannot be absolutely certain as to the cause of the injury". -June 29/98
"The injuries are not explained by any activity described by the mother in her statement." - June 29/98
"In this situation of having a devastating injury which is not explained by history and which is usually non-accidental in nature, it is accepted practice to make a summary statement such as I did." - June 29/98.
"While the pathological appearance of the injuries can help separate inflicted from non-inflicted injury, in this case there is insufficient evidence to make such a determination on pathological grounds alone." -June 29/98
"I cannot completely eliminate asphyxia as a cause, although the medical evidence, in my opinion, points to a blunt head injury." - July 20/98
Either a blunt force impact to the head or the asphyxia would be by non-accidental actions of the caregiver." -July 20/98.
"I am 99% certain that this child died due to non-accidental trauma inflicted by the mother." -May 8/98
ETC, ETC, ETC

Smith's entire opinion was based on conjecture and speculation.

The Crown Attorney later concluded that the evidence could not support criminal charges.

Dr Cairns was clearly negligent in not evaluating the sustainability of Dr Smith's conclusions, before giving his full endorsement.
Dr Cairns demonstrated reckless disregard for the consequences of leveling a speculative accusation of murder.(This was not a traffic ticket)
Even after the Crown Attorney provided an objective evaluation of the evidence, Dr Cairns persisted in promulgating the murder accusation, by promoting and encouraging the CAS to apprehend my daughter's new baby.

Why did Dr Cairns compromise the very integrity of the Coroner's Office by letting Dr Smith dictate this entire investigation ???
Why did Dr Cairns not seek an independent opinion from a qualified pathologist before abetting the continued persecution of my daughter by the CAS, especially in light of the Crown Attorney's opinion ???

Integrity

After the police investigation and the Crown Attorney's rejection of the "evidence" as being unsustainable, Dr Cairns now had a legal evaluation of the quality of Dr Smith's allegations. Since our legal system is based on the premise of innocence until proven guilty, Dr Cairns, had he been objective, had a duty to reassess the consequences of pursuing such a serious and unsustainable accusation.

Instead, being totally dispassionate and insensitive to the devastation of losing a child, and the irreparable damage of being accused of causing that beloved child's death, Dr Cairns chose to administer the coup de grace by supporting and encouraging the CAS to apprehend her yet unborn child.

April 7, 1998 - Dr Cairns met with the CAS and reaffirmed that the Coroner's Office concluded that Nicholas had died of cerebral edema due to a blunt force injury to the head, caused by the intentional actions of the mother.
At this same meeting, Dr Cairns stated that "had the child been asphyxiated (as earlier suggested as a possibility), a cerebral edema would have been noticeable, however, there would not have any bruising of the right parietal bone, which was present at the autopsy." (Exhibit 8-item 30)
Therefore, "blunt force injury to the head" was the only conclusion.

May 8, 1998 - Dr Cairns and Dr Smith met with the CAS. Dr Cairns told the CAS "in clear unequivocal terms, that the diagnosis of the death as provided in the report of Dr Smith, was correct and was supported by the Coroner's Office and that no adequate medical explanation had been provided by any member of the family for the death of the child." (Exhibit 8-item 33)
June29, 1998 - In a sworn affidavit, Dr Smith states that Nicholas died due "to blunt impact to the head, although it is possible that it was caused by asphyxia. (Exhibit 12-item78)
June 29, 1998 - Dr Cairns, in a sworn affidavit, reiterates his support for ALL Dr Smith's opinions. (Exhibit 11)
(However, Dr Cairns had told the CAS on April 7,1998 (see above) that asphyxia was no longer a possible cause of death - yet he now agrees with Dr Smith on the asphyxia hypothesis.)

June 16, 1998 - Dr Cairns, informed the CAS that the opinions put forth by Dr Halliday (Exhibit 9) " were not sustainable and that the position of the Coroner's Office had not changed relative to the cause of death." (Exhibit 10-item 6)
Dr Cairns misled the CAS (and the police) into thinking that he would be an "expert" witness in support of Dr Smith's opinions - when, in fact, he admittedly did not examine any of the physical exhibits. (Exhibit 22)
Dr Cairns exacerbated this misconception by "misrepresenting the truth" in a sworn affidavit. (Exhibit 11)

Why did Dr Cairns choose to compromise his own integrity as well as the integrity of the Chief Coroner's Office, by perpetuating, at any cost, the wrongful persecution of a grieving family ???

3 - Recklessness

Given the seriousness of a murder accusation, with all its ramifications, Dr Cairns had a moral, if not legal, duty to ascertain that the evidence was absolutely conclusive, without any element of doubt. For a full year and a half, Dr Cairns was unwavering in his support of Dr Smith's hypotheses, dismissing any professional opinions to the contrary.

In January 1999, Dr Chiasson requested that Dr Mary Case review the case. (Exhibit 20)

Dr Cairns was quoted during the fifth estate program on Nov 10, 1999:

"We indicated that we were going to hire an independent forensic pathologist from the United States, a Dr Mary Case from St Louis, and we made it known that our Office would accept whatever that independent person's report said." (Video)

Dr Cairns, until Dr Case's report, kept reaffirming, to the police and the CAS, that the Coroner's Office had absolutely no doubt that Nicholas had died of cerebral edema due to blunt force injury to the head, caused by his mother, Lianne.

Dr Cairns wanted Lianne charged with second degree murder.
Dr Cairns wanted the CAS to apprehend Lianne's new baby at birth.
Dr Cairns had no qualm in persecuting this innocent girl.

If Dr Cairns was so totally convinced of Lianne's guilt, why was he prepared to accept WHATEVER Dr Case concluded - thereby dismissing Dr Smith's speculations, the very basis for his unrelenting persecution ??
Is it Dr Cairns practice to make murder accusations based on evidentiary roulette??

CONCLUSION

Let us review the objective realities of this case:

Nicholas died suddenly on November 30, 1995.
The ER doctors reported "no sign of external head trauma" and "no sign of bruising to the body" and "no evidence of any fractures"
Two separate autopsies concluded "no external marks of violence - no bony injury - no soft tissue damage."
The autopsy revealed a swollen brain.
There was no finding of brain trauma.
No medical evidence to support abuse or inflicted injury
Cause of death could not be ascertained.

Dr Cairns' actions in this case:

Is Dr Cairns incompetent? I think not. Dr Cairns is a very articulate and convincing person. There is no evidence that would suggest that he is incompetent.
Was Dr Cairns negligent and reckless in the handling of this investigation? The evidence would suggest that he was. However, this may be too simplistic, given his subsequent support of everything (and anything) that Dr Smith espoused - even when it contradicted his own statements.
Was Dr Cairns guilty of depraved indifference? Allowing that he is not incompetent, he necessarily knew that Dr Smith's speculations were not sustainable, yet he blindly supported the unfounded accusations, being well aware of the consequences for the accused. Yet, his active participation in the promulgation of these accusations goes beyond simple indifference.

In the absence of a credible explanation, the events in this investigation would suggest a most disturbing conclusion. Logic would dictate that the only plausible explanation for Dr Cairns' actions in this case would be complicity. The evidence of prejudice, negligence, recklessness, obduracy, would support that Dr Cairns, and his partner Dr Smith, have succumbed to, and are perpetuating the child abuse hysteria. Like the Cohn/McCarthy scenario, Dr Smith identified yet another case of "child abuse" for Dr Cairns. What followed can only be construed as a "witch-hunt"

A rampant child-abuse hysteria has compromised all objective reasoning in this "war on child abuse". The child protection community has become a child abuse cult, influencing the Government and its agencies. This is evidenced by the passing of Bill 006 (An Act to Amend the Child and Family Services Act ) without any debate or opportunity for public input. This Act gives the CAS draconian powers, many in violation of basic civil rights.

For the purpose of this exercise, it is important to note that Dr Cairns and Dr Smith, in conjunction with the CAS, spearheaded the drafting of Bill 006. Dr Cairns and Dr Smith basked in the media notoriety - no doubt seeing themselves as crusaders in the eradication of all child abuse.

Please know that, without reservation, this family condemns (real) child abuse as being the most heinous and despicable of all crimes. But witch- hunts, in the name of this "noble and just cause" are equally reprehensible.

Dr Cairns clearly enunciated his philosophy on the fifth estate program:

"Children die as a result of abuse. When we have no explanation for it, we have to consider the possibility that foul play is involved." (Video)

This prejudiced philosophy dictated the direction and logic in the investigation of Nicholas' death :

Cairns/Smith Logic:

We are unable (incapable) to medically ascertain the cause of death.
The mother cannot provide an explanation why her child died
The mother was alone with her child at the time of death
Therefore, the mother caused the child's death.

Dr Cairns, without reservation, agreed with Dr Smith's opinion that Nicholas died of cerebral edema, perhaps caused by a "blunt force injury to the head" OR perhaps by asphyxia.

Dr Smith's many opinions:

"I believe that the edema of Nicholas' brain, not being caused by natural disease, could have been caused by trauma".
"It is my opinion, that none of the events given in the mother's statements are sufficient to explain his death".
"In the absence of an alternate explanation, the death of this young boy is attributed to blunt head injury".
"In the absence of a credible explanation, the postmortem findings are regarded as resulting from non-accidental injury".
"In this situation of having a devastating injury which is not explained by history and which is usually non-accidental in nature, it is accepted practice to make a summary statement such as I did".
"I cannot be absolutely certain as to the cause of the injury".
"I cannot completely eliminate asphyxia as a cause".
"Either a blunt force impact to the head or asphyxia would be by non-accidental actions of the caregiver".
"I am 99% certain (not absolutely certain) that this child died due to non-accidental trauma inflicted by the mother".

On the other hand, opinions of qualified neuropathologists and a certified Medical Examiner, with no hidden agenda:

"Nicholas did not die from the result of a cranio-cerebral injury and resulting cerebral edema." - Dr William Halliday
"The brain is devoid of tell-tale signs of trauma." -Dr William Halliday (Exhibit 23)
"I would not attribute this death to a head injury as there are no findings on which to make such a conclusion". - Dr Mary Case (Exhibit 24)
"I see many infants and young children dying from a variety of causes who have similar amounts of brain swelling". - Dr Mary Case
"Brain swelling or cerebral edema should never be used as an isolated finding to make a diagnosis of head injury". - Dr Mary Case
"I would not attribute an asphyxial mechanism to this death anymore than I would a head injury". - Dr Mary Case
At a lecture in Washington DC, Dr Case used Nicholas' case as an example of "irresponsible testimony". (Video)
"If every case of this nature was to be regarded as an example of non-accidental death, with overtones of trauma and homicide, we would be in a sorry state of affairs". -Dr Derek J Desa; (Exhibit 26);

In retrospect, it is clearly obvious that Dr Smith was out of his depth and provided Dr Cairns with totally irresponsible and flawed conclusions. It was equally as irresponsible of Dr Cairns, as Deputy Chief Coroner and a physician, not to question the speculative nature of Dr Smith's fantasy - possibly more so, since he readily endorsed and promulgated this travesty, in his capacity as a public official, in a position of trust.

Dr Cairns, driven by Dr Smith, recklessly and unjustifiably attacked a grieving mother, a mother who had lost her only child, a mother trusting the authorities to provide the answers she so desperately needed, a mother filled with pent-up love for her unborn daughter, a mother trying to claw her way back from the devastation and pain.

Dr Cairns unwarranted and reckless actions destroyed the emotional and financial health of an entire family.

In the words of one Joseph Welch to Senator Joseph McCarthy, I would ask Dr Cairns : "Have you no sense of decency, sir?"

How can the Chief Coroner's Office be objective on a premise that all parents are potential child abusers? While there may be a very small, sick, minority in our midst, there is a basic human instinct to nurture and protect our children at any cost. It is also normal for the entire community to mourn the loss of a child and to identify with the grieving parents, praying that it will never happen to them.

This same community, that despises and condemns child abusers, is equally repulsed and angered by the unjustifiable and callous attack on these grieving parents.

The Chief Coroner's Office needs to develop guidelines, a fail-safe system, to ensure that grieving parents are never again subjected to frivolously accusations - helplessly loosing a child is devastation enough.

As long as these crusaders are granted qualified immunity from personal accountability, they will continue to investigate pediatric deaths in the same reckless, sloppy and zealous manner. They will continue to expend inordinate amounts of public funds to pursue these fabricated cases - again with no accountability."

Maurice Gagnon wrote Tsubouchi on March 6, 2000;

This 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;

Harold Levy...hlevy15@gmail.com;