JUSTICE GOUDGE'S FINDINGS; PART SEVEN; TYRELL'S CASE; 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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An overview report prepared by Commission staff on Tyrell's case reads, in par, as follows;

Tyrell was born in Toronto on February 1, 1994;

Tyrell was the child of Janette and Garth;

Tyrell was almost four years old at the time of his death;

Criminal proceedings were initiated against Tyrell's caregiver, Maureen.

The criminal proceedings concluded on January 22, 2001, when the Crown stayed the second-degree murder charge against Maureen for the stated reason of preventing a miscarriage of justice

(Even though the Crown took the highly unusual move of withdrawing a second-degree murder charge in the face of opinions from highly respected experts which contradicted Dr. Smith's opinion, Justice Goudge notes that, "Dr. Cairns concluded that this was simply another one where reasonable experts could differ."

Justice Goudge's comment is particularly interesting in light of the fact that the charge against Maureen in Tyrell's case was stayed on January 22, 2001 - and the highly publicized withdrawal of the murder charge faced by Louise Reynolds in Sharon's case occurred merely three days later, on January 25, 2001;)

Surely, the timing of the two significant reverses to police prosecutors in cases involving Charles Smith should have give given Dr. Cairns significant pause.)

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Failure to disregard irrelevant and prejudicial information;

This is one of the cases where Justice Goudge found that Smith had allowed irrelevant or prejudicial information to affect his decision making in an individual case.

Justice Goudge was referring to the note Smith made in his autopsy report that Tyrell's mother had left him in Jamaica when he was young and that his father was in jail at the time, having killed a bystander during a shootout.

"If Dr. Smith relied on this information, he should not have done so," ruled Goudge.

"None of the information set out above should have been included ina final autopsy report because it leaves the impression that somehow it played a part in Dr. Smith's thinking;

Diagnosing head injury

Dr. Charles Smith's record in head injury cases - where he tended to find shaken baby syndrome - and Tyrell's case was no exception.

"Dr. Smith made serious errors in the diagnosis of head injury in several of the cases before me," Justice Goudge ruled.

"In some instances, his diagnosis, which today would be considered unreasonable, was acceptable given the knowledge at the time.

"In others. however, Dr. Smith's diagnosis was unreasonable then and would be unreasonable now.

More specifically, Tyrell's caregiver reported that he had been jumping on the couch, had slipped, and had fallen backwards, hitting his head on the marble coffee table or on the tiled floor.

Goudge said that although Smith rightly concluded that Tyrell had died of a head injury, "he failed to recognize that the pathology findings supported the position that Tyrell had suffered a contre coup brain injury, which is classically associated with a backward fall."

"Moreover, in 2000, when he testified for the Crown at the preliminary hearing of Tyrell's caregiver, Dr. Smith wrongly asserted that the caregiver's explanation could not account for Tyrell's injuries," Goudge added.

He went as far as telling the court that the literature suggested that children do not die from a fall of less than three or four storeys.

That was clearly wrong.

By 2000, there had already been a number of anecdotal reports of small household falls causing serious injury and even deaths in infants and children.

Dr. Smith's unequivocal opinion failed to reflect the state of the knowledge in 2000."

Use of default diagnosis;

Justice Goudge criticizes Smith for using default diagnosis in Tyrell's case - as he had also done in the several other cases;

Goudge says a default diagnosis is one that is assumed to be correct because the evidence does not exclude it.

"His reasoning is contrary to the evidence-based approach to forensic pathology," Goudge ruled.

Under an evidence-based framework, forensic pathologists begin from a position of objectivity, have an open mind, and consider all the possibilities before arriving at a decision.

They do not assume a diagnosis in the absence of another explanation and do not place the onus on others to locate contradictory evidence...."

The expert and evidence beyond his expertise:

During the course of the preliminary hearing Dr. Smith gave inappropriate evidence that was far removed from his expertise - such as his opinion that blunt force, shaking and abdominal injuries were more likely to be inflicted by men, whereas asphyxial deaths were more likely caused by women.

But Justice Goudge notes that Smith gave evidence that extended far beyond interpretation of pathological evidence in response to questions from the Court and from counsel - who both should have known better.

"Although experts must always recognize the limits of their expertise and stay within those limits, judges and counsel also play an important role in ensuring that those boundaries are respected.

In other words - my words - the judge and the lawyers did not do their job of protecting the accused and the criminal justice process;

Harold Levy...hlevy15@gmail.com;