"THE PROVINCE OF ONTARIO STRUCK A PANEL TO LOOK AT HOW IT COULD COMPENSATE DR. SMITH'S VICTIMS. TO DATE, NO ONE HAS RECEIVED A CENT.
"YOU HAVE A BUNCH OF PEOPLE THAT GOVERNMENT, I'M AFRAID, SEEMS TO HAVE NO INTEREST IN COMPENSATING, WITH NO ACCOUNTABILITY FOR THE PEOPLE WHO CAUSED WHAT HAPPENED IN THE FIRST PLACE," SAID MR. LOCKYER. (ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED); "IT ALL SEEMS PRETTY UNSATISFACTORY TO ME.""
REPORTER NATALIE ALCOBA; THE NATIONAL POST;
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"Sherry Sherret-Robinson had been expecting a private audience and apology from the man whose testimony wrongly sent her to jail for killing her infant son," Natalie Alcoba's National Post story, published on Decembe 11, 2009, begins, under the heading "No comfort or peace for Charles Smith's victims," and the sub-heading "Picking up the pieces: Those whose lives were shattered by Charles Smith have little recourse."
"It was meant to occur during those dramatic days in early 2008, when Dr. Charles Smith was summoned to a public inquiry dissecting his flawed work as a leading child death expert and exposing systemic problems in Ontario's pediatric forensic pathology system," the story continues.
"Stained since 1998 with the "baby killer" label, then forced to give a second son up for adoption, Ms. Sherret-Robinson spent years hoping she would get another chance to be a mother. If Dr. Smith was going to apologize to her, she wanted him to meet her daughter, Madison, a healthy, happy little girl who is now four.
It did not happen, though. Dr. Smith was too stressed from his tense days on the stand — and from the emotional apology that he did deliver to another person he helped ruin, William Mullins-Johnson.
Ms. Sherret-Robinson shrugs off what could have been, resigned to the fact that she may never see anyone held fully to account for actions that had devastating consequences on her life.
"I can forgive him as a person because that's what my mom taught me to do, but I can't forgive his actions," Ms. Sherret-Robinson said in a telephone interview from her home in Trenton, Ont.
On Monday, Ontario's highest court overturned her conviction of infanticide, and acquitted her based on fresh evidence that contradicted findings made by Dr. Smith. He testified in 1998 Ms. Sherret-Robinson likely smothered four month old Joshua to death; experts now say his death was probably accidental.
She is the second Dr. Smith case to be cleared. Mr. Mullins-Johnson has been acquitted of murdering and raping his niece — a death that was later attributed to natural causes — and there remain seven other cases before the Ontario Court of Appeal.
Indeed, the public will be hearing about Dr. Smith, who was able to rise through the ranks of forensic pathology despite no training in the field, for several years to come.
A coroner's review has already found he made questionable conclusions of foul play in 12 cases that resulted in criminal convictions; now the Chief Coroner is casting a discerning eye over Dr. Smith's early work, from 1981 to 1991. It has found 15 cases that resulted in a finding of guilt, and two in which the accused was deemed not criminally responsible. Crowns have been assigned to assist in the review of 12 cases, said Brendan Crawley, spokesman for the Ministry of the Attorney General. The other five fall within the mandate of the Shaken Baby Death Review Committee, an outfit of legal and medical experts that is looking at a larger group of cases that extends beyond Dr. Smith to see if new science casts doubt on old convictions.
So, as the judicial system slowly reviews the forensic findings and circumstances that sent people to jail, the question of accountability lingers. Who is responsible when an innocent person is convicted? Should someone pay?
"One of the problems in these types of cases is there does seem to be a lack of accountability on the part of those who are responsible for the wrongful convictions. It's a perennial problem that we haven't solved in Canada yet, maybe one day we will," said James Lockyer, a founding director of the Association in Defence of the Wrongly Convicted (AIDWYC) and Ms. Sherret- Robinson's lawyer.
Justice Stephen Goudge, commissioner of the public inquiry, delivered a stinging indictment of Dr. Smith's professional conduct, saying that he tried to "frustrate oversight" of his work by superiors and was "not above using deception to attempt to throw them off the trail."
"Dr. Smith was adamant that his failings were never intentional," Mr. Goudge said. "I simply cannot accept such a sweeping attempt to escape moral responsibility."
But the judge said Dr. Smith is not the only one to blame, noting that his bosses at the time, Dr. James Young, former Chief Coroner for Ontario, and Dr. James Cairns, former Deputy Chief Coroner, "both shared the same commitment to the think dirty' approach" when it came to uncovering abuse in sudden and unexpected child deaths.
As a result of his recommendations, the province is creating a death investigation oversight council and a complaints committee for the public.
That may bring little consolation, however, to the people who are picking up the pieces of their shattered lives.
Some are turning to civil lawsuits for recourse; others are patiently waiting for the provincial government to compensate them. They look to the College of Physicians and Surgeons to set a date for a disciplinary hearing for Dr. Smith, even though the stiffest penalty is revoking a license that has already expired. He could also be fined $35,000, to be paid to the Ministry of Finance if he is found of guilty of professional misconduct and or incompetence. (The college says Dr. Smith is not believed to be working as a doctor in this country; he made no public statements upon Ms. Sherret-Robinson's acquittal this week.)
There is also the question of criminal charges, but lawyers suggest that a prosecution would be futile.
"I think Dr. Smith should pay the price for the damage he's done. Having said that, I'm doubtful a criminal prosecution would ultimately be successful against him," said David Bayliss, a defense lawyer who co-represented Mr. Mullins-Johnson. "If you could demonstrate that he knowingly mislead the court, or knowingly falsified autopsy reports you could charge him with public mischief, or potentially perjury, but those things are so hard to prove," he said. "Especially in the context of the environment he was in at that time, where he had the support of other doctors around him."
Civil litigation is another avenue, although that, too, is fraught. The Coroners Act protects coroners and those who work under them from being liable for harms resulting from their death investigations, provided they were conducted in good faith. There is debate, however, over how far that protection extends. Peter Wardle represents Louise Reynolds, who spent two years in jail on a charge of murder after Dr. Smith said her daughter had been stabbed. A review concluded some of the injuries were dog bites. Ms. Reynolds has never regained custody of her other child, said Mr. Wardle, and now she is suing Dr. Smith.
"It's a way to try to get recourse," he said, but "it's very difficult, it's very expensive."
Other forms of compensation seem out of reach. Victims of violent crimes in this province can apply to the Criminal Compensation Bureau of Ontario but Ms. Sherret-Robinson says that when she called to apply, she was told that she did not qualify as a victim of a violent crime.
One case in Britain is poised to make history, after a group of Welsh police officers were charged with "perverting the course of justice" for allegedly pinning the murder of a prostitute on three men, known as the Cardiff Three.
But innocence advocates in Britain have also wrestled with a system that stymies attempts at accountability. Women who were wrongfully convicted of killing their children largely based on the opinions of one pediatrician have no options. "There's no comeback, and there's the rub," said Michael Naughton, a law professor at the University of Bristol who established the Innocence Network UK.Because the doctor is an expert witness, who stands by his theory, the system is not held responsible, he said.
"Victims want accountability. They want somebody to stand up and take responsibility and they want somebody to say sorry, and nobody is saying sorry, " said Mr. Naughton.
The province of Ontario struck a panel to look at how it could compensate Dr. Smith's victims. To date, no one has received a cent.
"You have a bunch of people that government, I'm afraid, seems to have no interest in compensating, with no accountability for the people who caused what happened in the first place," said Mr. Lockyer. "It all seems pretty unsatisfactory to me.""
http://www.kelowna.com/2009/12/11/no-comfort-or-peace-for-charles-smiths-victims/
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