"Fraser adds that her organization's experience with child deaths - as corroborated by the evidence heard at the Inquiry - "confirms that systems designed to serve and protect children fail for a number of reasons, including systemic causes and the attitudes and actions of individuals, particularly those in charge." "An organizational culture that shuns openness and accountability is often a major cause when institutions fail children," she says......... In our submission, in this insular culture, together with the unique opportunity afforded by society’s increasing awareness and repugnance of child abuse, Dr. Smith flourished. It is important to recognize that the impact of this institutional culture is far-reaching. First, the experiences of those investigated, charged and in some cases convicted as a result of Dr. Smith are well understood. Second, surviving siblings and future born children were also affected. The overview reports provide some detail to their experiences. A chart, summarizing what is known about the child welfare proceedings is attached as Appendix “B” to these submissions. It is fair to say, that as the result of Dr. Smith’s opinion at least 17 children were taken into the care of the state and three children were placed for adoption. Those not adopted, appear to have been ultimately returned to their families after the criminal charges were dealt with by the court."
LAWYER SUZAN FRASER; CLOSING SUBMISSIONS TO THE GOUDGE INQUIRY; ON BEHALF OF DEFENCE FOR CHILDREN INTERNATIONAL CANADA;
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BACKGROUND: In february, 2011, The Ontario Court of Appeal quashed the murder conviction of the Toronto mother who was imprisoned for life on the basis of flawed testimony from pathologist Charles Smith. “We recognize this has been a terrible ordeal for you and it’s tragic it has taken so long to uncover the flawed pathology that led to your conviction in 1995,”Justice Marc Rosenberg told Tammy Marquardt Thursday morning. “We agree … there was a miscarriage of justice,” Rosenberg said on behalf of a three-judge panel. The 38-year-old Scarborough native spent nearly 14 years in prison after being convicted of murdering her 2-year-old son, Kenneth Wynne. While other victims of Smith’s mistakes have since been acquitted, Marquardt’s “dilemma” is that fresh evidence in her case only allows a court to go as far as ordering a new trial, Lockyer told the court. The evidence is still ambiguous about how the child died but strongly suggests he died as a result of an epileptic seizure, Lockyer said. In his short life, Kenneth had suffered from asthma and pneumonia and had been treated for seizures eight times. Smith opined the cause of death was asphyxia, likely the result of smothering or suffocation. That remains a possibility, given an absence of hard evidence about why Kenneth died, the appeal court was told on Thursday. At the same time, two neurologists from the Hospital for Sick Children who independently examined the boy’s medical records found his demise was consistent with a sudden unexplained death from epileptic seizure. While three-judge panel set aside Marquardt’s conviction, the Crown has not indicated whether it intends to proceed with a new trial. The court, meanwhile, extended Marquardt’s bail. The appeal court decision came after forensic experts reviewed the conclusions of the former pediatric pathology superstar and found them illogical and “completely” unscientific. Smith’s evidence dovetailed with the Crown’s theory at the time, that Marquardt had suffocated Kenneth in a moment of anger and frustration. But he was wrong in supporting the Crown’s theory and his testimony denied the jury the option of concluding the child had instead died as a result of a seizure, Crown counsel Gillian Roberts told the court. Marquardt said she found him twisted up in bed sheets and obviously distressed. He was taken to hospital, but died three days later, after being taken off life support. Nearly two years ago, Marquardt was released on bail. She had been incarcerated in the Grand Valley women’s prison in Kitchener. Kenneth died 17 years ago, in October, 1993. Her other sons, who she named Keith and Eric live somewhere in Canada, but never had further contact with their mother.
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PUBLISHER'S NOTE; The exoneration of Tammy Marqhardt yesterday makes relevant a post published on September 28, 2008 in which I noted that, "When Justice Goudge releases his report on Wednesday, all eyes will be on the degree to which he holds the Chief Coroner's Office and its top officials responsible for the damage caused to our criminal justice system and so many innocent individuals by Dr. Charles Smith in the years under review." I added that, "The accountability of the Chief Coroner's Office - and its top officials, Dr. James Young and Dr. Jim Cairns - was the subject of a post which ran on Friday, March 28, 2008, under the heading: "Part One: Closing Submissions; Top Leadership of Chief Coroner's Office Cited For Failing To Prevent Harm To Children and Miscarriages Of Justice." The reference was to the closing submissions filed by lawyer Suzan Fraser on behalf of Defence for Children International Canada.
"Among the thousands of pages of submissions filed at the Goudge Inquiry, one brief deserves particular attention," the post began.
"It is filed by Toronto lawyer Suzan Fraser who represents an organization called "Defence for Children International Canada (DCI-Canada), it continued.
"Fraser's memorable cross-examination of Dr. Charles Smith is discussed is a previous posting called: "Lawyer Suzan Fraser's brilliant cross-examination of Dr. Charles Smith: A powerful voice on behalf of children" which was posted on Feb. 2, 2008;
She focused on the tragic disruption caused within families when siblings were seized by child protection authorities after a parent was wrongly charged with killing a child because of the flawed opinion of Dr. Charles Randal Smith;
Fraser's powerful voice on behalf of children is heard once again in closing submissions that suggest the children and their families were betrayed by a Coroner's office which failed to rein Dr. Smith in;
Fraser wants Commissioner Stephen Goudge to find that the institution of the Office of the Chief Coroner was, "an insular and unaccountable organization and the individuals in charge of pediatric death investigations failed personally to prevent miscarriages of justice and a crisis in pediatric forensic pathology."
And that's just for a start;
Fraser adds that her organization's experience with child deaths - as corroborated by the evidence heard at the Inquiry - "confirms that systems designed to serve and protect children fail for a number of reasons, including systemic causes and the attitudes and actions of individuals, particularly those in charge."
"An organizational culture that shuns openness and accountability is often a major cause when institutions fail children," she says."
Fraser argues that the only way Justice Goudge can understand how the Chief Coroner's Office became "so insular" is to identify "the contributions of individuals as well as systemic and structural factors."
More specifically, she contends that, "confronting the flawed organizational culture within the Chief Coroner's Office requires that the Commission make findings in respect of the role of Dr. (James) Young (former Chief Coroner of Ontario), Dr. (James) Cairns, former Deputy Chief Coroner) and Dr. Smith."
"We believe that addressing their contributions to the failure is the first step in restoring accountability and openness to the coroner’s office and pediatric forensic pathology in Ontario," she says. "This in turn will help to restore confidence in the coroner’s office and pediatric forensic pathology in Ontario."
Here is a portion of the section in which Fraser lays out the alleged failure of Young, Cairns and Smith for Commissioner Goudge:
"DCI submits the Commission should find that Dr. James Young, Dr. Jim Cairns and Dr. Charles Smith contributed to the crisis in pediatric forensic pathology by virtue of the culture of their leadership," the section begins;.
"Each was committed to either a personal interest or ideology," it continues.
"For Dr. Young, it was the protection of his office.
For Dr. Cairns, it was the pursuit of an improved death investigation for children based on his vision of what was right.
For Dr. Smith, it was to carve out a niche as the leading pediatric forensic pathologist and protect his position within the Hospital for Sick Children.
Each needed each other to fulfill their pursuits.
The product was an organizational culture that was so insular, so immune to criticism and so lacking in accountability that someone who was dogmatic, arrogant and ignorant could thrive.
Dr. Smith has admitted that he was all those things and more.
All things that speak to both his competency and his ethics:
he was an advocate;
he was an advocate for the Crown;
he gave confusing testimony;
he went beyond his expertise;
he saw himself as a member of the prosecution team; and
he was profoundly ignorant.
Their shared vision, exposing child abuse by death investigation, was championed by the media and fuelled a moral panic that parents were getting away with murder.
The panic appears to have reached its zenith in the Spring and Summer of 1997, which saw:
0: the Ontario Child Mortality Task Force released its interim report in March, 1997 and Final report in July, 1997;
0:The Toronto Star ran its “Cry for the Children” series in March, April and May, 1997;
0: the inquests into the deaths of Shanay Johnson and Kasandra;
0: The Toronto Star call for inquests to be mandatory for children who die while under the supervision of the CAS;
0: And Jordan Heikamp dies of starvation on June 23, 1997 at the age of 5 weeks.
The climate was ripe for absolute trust to be placed in the death investigation system.
During this wave of moral panic and absolute trust, investigations were being conducted into the deaths of Joshua, Jenna, Sharon, Nicholas and Jordan, a preliminary inquiry was conducted into the death of Taylor and inquests were conducted into the death of Kasandra and Shanay Johnson who died as a result of violence by her caregiver.
In our submission, in this insular culture, together with the unique opportunity afforded by society’s increasing awareness and repugnance of child abuse, Dr. Smith flourished.
It is important to recognize that the impact of this institutional culture is far-reaching.
First, the experiences of those investigated, charged and in some cases convicted as a result of Dr. Smith are well understood.
Second, surviving siblings and future born children were also affected.
The overview reports provide some detail to their experiences.
A chart, summarizing what is known about the child welfare proceedings is attached as Appendix “B” to these submissions.
It is fair to say, that as the result of Dr. Smith’s opinion at least 17 children were taken into the care of the state and three children were placed for adoption.
Those not adopted, appear to have been ultimately returned to their families after the criminal charges were dealt with by the court.
Third, the findings in these cases appear to have influenced the academic literature.
Dr. Pollanen’s article “Fatal Child Abuse Maltreatment Syndrome” appears to draw its conclusions from many of the cases here.
Finally, Dr. Smith’s inquest work led to 73 recommendations in the Kasandra inquest7 which formed a platform for the reform of the Child and Family Service Act in May, 19998.
Dr. Cairns and Dr. Young introduced Dr. Smith as the leading authority in either the country or the continent.
The only pediatric forensic pathology training in which Dr. Smith participated was training given by himself.
He was invited by (The Chief Coroner's Office) throughout the 1980’s and 1990’s to deliver training and the Coroner’s office encouraged him to develop expertise in pediatric forensic pathology.
It was advantageous for (the Office of the Chief Coroner of Ontario) to have someone with expertise in Child Abuse and Neglect. They needed Dr. Smith and Dr. Smith needed them."
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 found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
