Thursday, December 4, 2008


I have previously noted that, "Father Raymond De Souza is rapidly becoming one of the most articulate and impassioned critics of Canada's criminal justice system through his columns published in the National Post;"

This is borne out in Father De Souza's commentary on the Goudge report which was published in the National Post on October 8, 2008, under the heading, "Who examines the medical examiners?”

"Is it possible to get a fair trial in Canada?," the column begins.

"Justice Stephen Goudge did not permit himself to put the question so dramatically in his report into pediatric forensic pathology in Ontario," it continues;

"He found the work of the lead pathologist, Dr. Charles Smith, to be spectacularly incompetent, and the oversight of his superiors to be wilfully negligent.

The upshot was that for over 20 years, innocent people were falsely accused and convicted of assaulting and killing children.

That these false charges were sometimes brought against grieving parents makes the malfeasance of the Ontario Coroner's Office particularly grotesque.

It would be hard to imagine a more profound abuse of state power: innocent people sent to jail, reputations destroyed, families sundered, children traumatized and guilty parties going free.

The old Latin question comes to mind: Quis custodiet ipsos custodes? Who guards the guards? Who polices the police? Who prosecutes the prosecutors? Who examines the medical examiners?

The answer is: No one.

That's why the possibility of a fair trial depends upon the state using its fearsome prosecutorial and police powers with restraint and in service of the truth.

The reality is that too often those powers are unleashed in the service of securing convictions, truth be damned.

In Canada we have long watched the parade of the wrongfully convicted, and so are no longer surprised when our governments put innocent people in jail.

But at what point does the accumulated evidence lead one to conclude that the system is so corrupted that it is no longer reasonable to expect a fair trial?

The Goudge report puts us in that territory.

The terms of reference for Justice Goudge were narrowly drawn, asking him only to investigate the conduct of the coroner's office.

But his findings highlight a much deeper problem -- the very attitudes which dominate prosecutors' offices and police forces.

"Dr. Smith failed to understand that his role as an expert witness was not to support the Crown," Goudge reports.

"At the inquiry, he was candid on this point ... He acknowledged that, when he first began his career in the 1980s, he believe that his role was to act as an advocate for the Crown and to 'make a case look good.'"

Where would he get that idea?

In two decades of helping police and prosecutors put together fraudulent cases, was he never told that he should tell the truth rather than co-operate in the railroading of innocent people?

Dr. Smith operated in an environment in which the presumption of innocence simply did not apply.

That it went on for so long reveals this was no mere incompetence or occasional overzealous prosecution; the criminal justice system in Ontario was systematically unjust.

Justice Goudge summarizes the attitude of Dr. Smith's superiors: "Dr. Young and Dr. Cairns both shared with Dr. Smith the same commitment to the 'think dirty' approach -- that is, approaching every sudden and expected child death with a high index of suspicion-- to uncovering child abuse."

What we fear most in the criminal justice system is the dirty cop, or the dirty Crown attorney.

But far worse is a system in which the cops and Crowns think dirty, assuming the guilt of the suspect and then massaging, manipulating or fabricating the evidence to fit that predetermined conclusion.

That is what Dr. Smith did, and for 20 years Ontario's police and prosecutors were happy for his help.

The sheer weight of evidence in the Goudge report shows that it was not just that a blind eye was turned; no, with a wink and nudge Dr. Smith was actually encouraged to "make a case look good."

Canadians ought to be more enraged then they are, and the consequences for Dr. Smith and his enablers ought to be uncompromisingly severe.

They have compromised our fundamental liberties and put our right to a fair trial in doubt."