"Why is there an apparent reluctance to use the full force of the criminal law and place Smith’s liberty in jeopardy, as he did to so many others?
Is it the state of the law or is it something else?.........
The offence that seems to fit the best is that of causing bodily harm by criminal negligence.
Instead of having to prove an intent to mislead, this offence requires “conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances.”
Bodily harm includes “any hurt or injury ... that interferes with … health or comfort ... that is more than merely transient or trifling.”
That should include an innocent person’s years spent behind bars."
COLUMNIST ALAN SHANOFF; THE TORONTO SUN;
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BACKGROUND: The Goudge inquiry focused largely on the flawed work of Charles Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. (He has since been thrown out of the medical profession in Ontario);
The 1,000-page report by Justice Stephen Goudge slammed 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 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, 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 Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, misstating 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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"Last month the College of Physicians and Surgeons of Ontario revoked Charles Smith’s licence to practice medicine in Ontario," the Toronto Sun column by Alan Shanoff published earlier today begins, under the heading, "Charles Smith should be charged with criminal negligence: Shanoff."
"Not much of a punishment, considering his licence lapsed in 2008 when he failed to renew it," the column continues.
"Is that the best we can do?
How many miscarriages of justice must be revealed before the province takes real action?
How much money must the Ontario government pay to those wrongfully convicted before serious measures are taken?
Is the CPSO’s symbolic action to be the only punishment for all of the years lost, the humiliation and disgrace suffered, the tears shed, the families torn apart, as a result of Smith’s actions?
Why is there an apparent reluctance to use the full force of the criminal law and place Smith’s liberty in jeopardy, as he did to so many others?
Is it the state of the law or is it something else?
Establishing the first element of a perjury charge — that a witness lied under oath — should be easy.
According to findings of the Inquiry Into Pediatric Forensic Pathology In Ontario (the “Goudge Inquiry”), Smith made “false and misleading statements to the court.”
But proving the second element — establishing an intent to mislead the court — would be difficult.
It’s hard to imagine Smith knowingly gave false evidence with the intent of causing innocent people to be convicted.
More likely it was incompetence and over-zealousness. After all, Smith had no formal training, continuing education or certification in forensic pathology.
The offence of obstructing justice requires proof of the wilful or specific intention to obstruct justice.
The offence of public mischief also requires proof of an intention to mislead.
Prosecution for either offence would therefore likely fail.
The offence that seems to fit the best is that of causing bodily harm by criminal negligence.
Instead of having to prove an intent to mislead, this offence requires “conduct which reveals a marked and significant departure from the standard which could be expected of a reasonably prudent person in the circumstances.”
Bodily harm includes “any hurt or injury ... that interferes with … health or comfort ... that is more than merely transient or trifling.”
That should include an innocent person’s years spent behind bars.
In reviewing Smith’s conduct we mustn’t forget the finding of the Goudge Inquiry that Smith “actively misled those who might have engaged in meaningful oversight of his work.”
Indeed “(h)is attempts to mislead spanned his entire career as director of the OPFPU (Ontario Pediatric Forensic Pathology Unit)”.
Smith was also harshly criticized in 1991 by Justice Patrick Dunn in the course of his reasons for acquitting a babysitter, accused of killing a 16-month-old child.
Smith later lied and falsely claimed the judge had, after the trial, conceded he had been mistaken and should have convicted the babysitter.
He continued to testify as an expert, with little apparent scrutiny, for many years following Dunn’s criticism.
I’m not saying a prosecution would succeed, but what’s the harm in allowing a judge to examine whether Smith was criminally negligent?
A prosecution would foster confidence in the criminal justice system and discourage other rogue experts from testifying in court.
Still, I’ll understand if there’s no prosecution.
After all, it might highlight the many people whose inattention allowed Smith to create a wrongful-conviction industry.
Again, to quote from the Goudge Inquiry, “the court (judges) and counsel (crown attorney and defence) have a duty to ensure that the pathologist does not give inappropriate evidence.”
How many judges failed in their role as gatekeeper by allowing Smith to testify?
How many Crowns called upon Smith to testify without first verifying his credentials?
How many defence lawyers conducted ineffective cross-examinations?
The blame can also be spread to those tasked with supervising Smith.
There’s a lot of blameworthy conduct to be considered.
Otherwise, how could a man with no training or certification be allowed to testify as an expert forensic pathologist so frequently?"
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The column can be found at:
http://www.torontosun.com/comment/columnists/alan_shanoff/2011/03/11/17587126.html
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/2010/08/new-feature-cases-issues-and_15.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com
