BACKGROUND; The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist — whose errors led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, chronic tardiness, and the catastrophic misinterpretation of findings. The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence.
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DETAILS OF THE ONTARIO GOVERNMENT'S "GOUDGE RECOGNITION PAYMENTS: AS RELEASED ON A GOVERNMENT SITE EARLIER TODAY:
"Goudge Recognition Payments," statement of details begins,
"Ontario is offering recognition payments to individuals whose lives have been significantly impacted as a result of flawed pediatric forensic pathology," the statement of details continues.
"The potentially eligible individuals were involved in the 19 cases examined by the Goudge Inquiry. The Honourable Chester Misener, a retired Judge of the Superior Court of Justice, will look at each case to determine eligibility and the amount each individual will receive.
The framework for recognition payments is based on the advice of a committee led by former Associate Chief Justice Coulter Osborne. This committee was appointed in response to a recommendation of the Goudge Inquiry.
The following questions and answers will help explain the process to apply for recognition payments.
News Release
Backgrounder
Expression of Interest Form (PDF)
Information Sheet (PDF)
1.
Am I eligible for a payment?
Each case will be individually considered. There are a number of factors that will be considered by the Honourable Chester Misener in making a decision about eligibility. You may be eligible if:
* You were involved in one of the 19 cases studied by the Goudge Commission
* You have been identified as having been investigated, charged or convicted in relation to the death of a child in one of the 19 cases
* Your convictions have been set aside
* Faulty pediatric forensic pathology was a material factor in your exposure to the criminal justice system
* You are a family member (spouse, parent, grandparent, child, grandchild) of an eligible individual who was directly affected by your relative's interaction with the criminal justice system
* You spent money for legal fees in the defence of the criminal charges or related child protection proceedings.
* See Question 8 for factors that will be considered in deciding how much the payment will be.
2.
How much money can I get?
If you are eligible for a payment:
* Eligible individuals who were investigated, charged or convicted may receive a recognition payment of up to $250,000.
* A child of such an individual who was removed from the home may also be eligible for a payment of up to $25,000.
* Family members of such an individual may be eligible for a payment of up to $12,500.
* Those eligible for the reimbursement of legal costs may receive up to the full amount of those legal costs.
3.
Who is making the decisions?
The Attorney General has asked the Honourable Chester Misener to decide who is eligible and what amount they should receive. Mr. Misener was appointed to the Bench in 1976 and retired from the Superior Court of Justice in 2005. He will be making his decisions independently.
4.
What is the process?
The entire process, from the time the personalized Application Package is received by the applicant until payment, should take approximately ninety (90) days. It is a written process.
Letters to potentially eligible individuals who were investigated charged or had a conviction overturned will be sent by the Honourable Chester Misener, enclosing an Information Sheet, an Expression of Interest form, and these Frequently Asked Questions. Family members of persons identified by the Goudge Inquiry, or those who incurred legal expenses in the defence of criminal charges or related child protection proceedings, should contact the Honourable Chester Misener to identify themselves and provide their current contact information to him if they wish to obtain an Expression of Interest Form and to participate in this process.
An application must be submitted no later then August 10, 2012, or within two years of a final disposition resulting in the conviction being set aside, whichever date is the latest.
Wherever possible, unless there are exceptional circumstances, the following timetable will apply:
* Step 1. Expression of Interest (Submitted by applicant) - The Expression of Interest form (PDF) indicating that an applicant wishes to be considered for a recognition payment should be received by the Honourable Chester Misener within thirty (30) days from the date the letters were sent to prospective applicants.
* Step 2. Personalized Packages (Sent by the Honourable Chester Misener) - Personalized application packages will be sent to the applicant within fifteen (15) days of the Honourable Chester Misener receiving the Applicant's Expression of Interest form. The materials in the personalized application package for individuals who were investigated, charged or had a conviction overturned will include, where available, the Overview Reports used as part of the Goudge Inquiry, relevant transcripts from the Goudge Inquiry and transcripts of and decisions in relevant criminal and child protection proceedings. The package will also include a blank Agreement which must be signed by an applicant who receives a recognition payment.
* Step 3. Application (Submitted by applicant) - The applicant must complete the Application Form and return it to the Honourable Chester Misener within thirty (30) days of receiving the personalized package.
* Step 4. Decision (Made by the Honourable Chester Misener) - Once the Honourable Chester Misener receives the completed application, he will have five (5) days to acknowledge receipt and forty-five (45) days to make a decision, and send the decision to the applicant and the Attorney General for Ontario. The decision is final. If the decision is for payment, an Agreement form will accompany the decision.
* Step 5. Agreement (Submitted by applicant) - The applicant should return a signed Agreement within ten (10) days of receiving the decision.
* Step 6. Payment (Sent to applicant) - Payment will be sent within five (5) days of receiving a signed Agreement from an applicant.
An application must be submitted no later than August 10, 2012, or within two years of a final disposition resulting in the conviction being set aside, whichever date is the latest.
5.
Do I need a lawyer to represent me?
You do not need a lawyer to represent you. This process has been designed so that a lawyer isn't necessary, but you may retain a lawyer if you wish.
* Lawyers who assist potentially eligible applicants who were investigated, charged or convicted, and whose convictions were overturned, are entitled to a payment by the government of $2500 for their assistance.
* Lawyers who assist a potentially eligible family member, or persons who incurred legal expenses as described above on behalf of a potentially eligible applicant whose conviction was overturned, are entitled to a payment by the government of $750 for their assistance.
6.
What should I do if I don't understand the forms?
If you need help understanding what a form means, you can call the Honourable Chester Misener's staff at 519-271-7330, who may be able to help you. If you still think you need help filling out the forms you can get a lawyer to help you.
7.
Can I talk to the Honourable Chester Misener about my experience?
If you wish to speak to the Honourable Chester Misener about your experience, you can indicate this on your Application Form.
8.
If I meet the eligibility requirements what factors will be considered in determining how much money I will get?
Each case will be individually considered. For eligibility criteria see Question 1. If you are found eligible by the Honourable Chester Misener, there are a number of factors that he will consider in making a decision about the payment amount. Some of the factors to be considered are:
* Loss of liberty - whether you spent time in jail
* Mental harshness and indignity - whether you suffered mental stress and indignity
* Whether your reputation was damaged
* Whether your family members suffered or other personal relationships were affected
* Whether you suffered loss of income
* Whether the conduct of the individual that was investigated charged or convicted contributed to their interaction with the criminal justice system.
9.
Can I still bring a lawsuit?
Yes. An individual who accepts a recognition payment can pursue a civil lawsuit with respect to the events surrounding their investigation, charge or conviction, or their relatives' investigation, charge or conviction. The only requirement is that if an individual wins or settles a lawsuit against Ontario, Ontario's payment under a judgment or settlement will be reduced by the amount of the recognition payment. For example, if an individual receives a $100,000 recognition payment and then settles a case against Ontario for $200,000, he or she will only receive a further $100,000 on top of the $100,000 already received under the framework. An Agreement to this effect, and acknowledging that a recognition payment is not an admission of liability, must be signed by an individual who accepts a recognition payment.
Furthermore, those who are eligible can still apply for compensation under the Federal Provincial Territorial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons.
10.
What materials will be used to make the decision?
The materials used to make the decision by the Honourable Chester Misener will include your completed Application form as well as the materials in your personalized application package. For those persons investigated, charged or convicted these materials may include: the Overview Reports used as part of the Goudge Inquiry, relevant transcripts from the Goudge Inquiry, and transcripts of, and decisions in, relevant criminal and child protection proceedings.
11.
Will my information be kept confidential?
Yes. Your personal information, including any submissions you make in the Application form, and the material relied upon by the Honourable Chester Misener to make his decision will be kept confidential and will not be released except as required by law. The only exception is where an individual has a lawsuit outstanding against Ontario in relation to this matter, and the individual receives a recognition payment. In those cases the individual must agree to allow Ontario to disclose that payment to the parties to the litigation in the course of settlement discussions. All such settlement discussions, however, will be kept confidential.
12.
What information will the Honourable Chester Misener share with the Ministry of the Attorney General?
The Honourable Chester Misener will make all decisions independently. He will provide only the Expression of Interest to MAG. If an application is then made, a copy of his decision will also be provided to the Attorney General, and if there is a payment, a copy of the Agreement. The Ministry of the Attorney General will provide Justice Misener with the materials comprising the personalized application package. Again, all of this information will be kept confidential, except as otherwise required by law.
13.
Where can I get an Expression of Interest Form?
If you want an Expression of Interest Form or have questions contact the Honourable Chester Misener's staff at 519-271-7330. The Expression of Interest form is also available at the ministry's website (PDF)."
The statement of details can be found at:
http://www.attorneygeneral.jus.gov.on.ca/english/goudge/
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://smithforensic.blogspot.com/2010/07/new-feature-cases-issues-and.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
