JUSTICE GOUDGE'S FINDINGS: PART FIVE; ATHENA'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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Athena died in Toronto on March 6, 1998 at the age of three months;

Dr. Smith performed the autopsy the next day;

He waited six weeks before submitting samples taken from the autopsy to the C Ontario's Centre of Forensic Sciences for analysis;

The Centre in turn took five months to complete its report;

Dr. Smith produced his report of post-mortem examination one month after that, and Athena's father was charged with manslaughter;

There was thus a seven-and-a-half month delay between the autopsy and the production of Dr. Smith's report on October 26, 1998;

On June 23, 2003, Superior Court Justice Brian Trafford stayed the proceedings against Athena's parents - her mother had also been charged - on the basis that the overall delay violated their Charter right to be tried in a reasonable time.

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Justice Goudge reported that Smith's delay in submitting the samples "was not the most troubling aspect of his conduct of the case."

"Many months later, in July 1999, Dr. Smith told the police and Crown Counsel that the liver injury took place within 12 hours of Athena's death.

Athena's parents had told the police that they were with Athena during the entire 24-hour period before her death.

In light of Dr. Smith's opinion on the timing of the liver injury, the police believed they had reasonable and probable grounds to charge both parents with second-degree murder.

But they wanted Dr. Smith's opinion in writing.

Shortly after the meeting, the police asked Dr. Smith to prepare an addendum to his initial report, outlining his opinion on the timing of Athena's injuries."

"Dr. Smith failed to produce the requested addendum," Goudge continued.

In the fall of 1999, an officer phoned Dr. Smith on numerous occasion, requesting the report, but he continued to delay.

In the winter of 2000, an officer and Crown counsel sent letters to Dr. Smith, formally requesting the report and stressing that it was urgently needed.

Still, Dr. Smith delayed.

Finally, in April 2000, on the very day that the police issued a subpoena for the production of his addendum, Dr. Smith produced a one and a half page letter outlining his opinion.

That was eight-and-a-half months after the initial request;

Justice Goudge notes that the Ontario Court of Appeal rejected the Crown's appeal after finding "among other things" that the failings of Dr. Smith caused the matter to be delayed "for the better part of two years."

"Thus, the concerns with Dr. Smith's work were not limited to misdiagnosis and overstated opinions," Goudge concluded.

"They included a complete dereliction of his duties as an expert to assist the Chief Coroner's Office and serve the criminal justice system."

Justice Goudge rejected Smith's feeble explanation that he was not aware of his legal obligations to make timely disclosure, saying, "by 1998, Dr. Smith knew the importance of complying with requests from the police and Crown counsel for a written opinion."

"Although I accept Dr. Smith's evidence that he found it a burden to prepare a supplementary report, his failure to respond promptly to the requests made by the police and Crown counsel was inexcusable."

"As a professional, the pathologist has a duty to ensure that any reasonable requests from the police and the Crown are answered in a timely manner, regardless of how burdensome the requests may be."

Too bad Dr. Smith lacked the humanity to consider the unbearable burden his delays must have imposed on Athena's bereaved parents.

The expert's attacks on his colleagues;

In a section of his report called "The expert's attacks on his colleagues" Justice Goudge criticizes Smith ofr "his unprofessional and unwarranted criticism of professionals."

This misconduct is particularly noticeable in Athena's case, where, during the preliminary hearing in November 2001, counsel questioned him on his opinion of several experts, including Dr. James (Rex) Ferris, a forensic pathologist.

"When asked if he respected Dr. Ferris' work, Dr. Smith testified that he did not respect Dr. Ferris' opinions in pediatric forensic pathology and did not know anyone in the field who did," wrote Goudge.

"According to Dr. Smith, Dr. Ferris did not have any special expertise in the area and his opinions were often "misleading"; Dr. Smith had never seen one that was close to reasonable."

In response to Smith's explanations that he had answered the questions truthfully, though uncharitably and unkindly, Goudge ruled: "In my view, Dr. Smith's comments about Dr. Ferris were not only uncharitable and unkind but also untrue."

Were I the Commissioner I don't think I could ever have been so constrained;

For Dr. Smith, a dishonest and unprincipled expert witness, to attack a real forensic pathologist and consummate professional such as Dr. Rex Ferris, is utterly disgusting - especially when he is under oath and trying to convict an accused person for the Crown;

End of rant!

End of post!

Harold Levy...hlevy15@gmail.com;