JUSTICE GOUDGE'S FINDINGS; PART TWELVE; JOSHUA'S CASE;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;

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An overview of Joshua's case prepared by Commission staff indicates that:

Joshua was born in Belleville, Ontario on September 23, 1995 to Sherry Lee-Ann Sherret and Peter.

Joshua had an older half-brother born on July 4, 1994 to Sherry and another partner.

Sherry, Peter, Joshua and Joshua's bother all resided together in Trenton.Ontario.

Joshua died on January 23, 1996, at the age of four months in Trenton,Ontario.

At the time of Joshua's death Sherry was 20 years old.

On March 27, 1996, sherry was charged with first-degree murder in Joshua's death.

After a preliminary inquiry she was committed to stand trial on that charge.

However, that committal was subsequently quashed and she was ordered to stand trial on a charge of second-degree murder instead.

On January 4, 1999, a new indictment charging infanticide was placed before the Ontario Court of Justice (General Division).

Sherry entered a plea of not guilty.

However, the Crown then read into the record certain agreed facts.

The defence called no evidence in response to the facts read in and did not dispute them.

As a result sherry was convicted of infanticide.

On June 2, 1999, she was sentenced to a one-year custodial term followed by two years of probation.

Just prior to the laying of the criminal charge, on March 7, 1996, Joshua's brother was apprehended by the Northumberland Children's Aid Society and placed in foster care.

He was ultimately adopted by his foster family.

In September, 2005, Sherry had another child, a daughter.

The Children's Aid Society obtained a Supervision Order in October, 2006, in relation to this child.

On April 11, 2007, that order was terminated.

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Failure to disregard irrelevant and prejudicial information;

"It is equally clear that the pathologist must disregard irrelevant and prejudicial information," says Justice Goudge. "Good science demands no less."

In Joshua's case, Justice Goudge faults Dr. Smith for recording in the final autopsy report that Joshua's mother was married, but did not officially live with her husband so she could continue to collect welfare.

"None of this information is at all relevant to pathology," he says..."None of the information set out above should have been included in a final autopsy report because it leaves the impression that it somehow played a part in Dr. Smith's thinking."

Preserving autopsy records:

Justice Goudge was extremely troubled by Dr. Smith's loss of exhibits in criminal case.

This is also true of Joshua's case, where he finds that Smith was asked to provide for the defence the microscopic slides and X-Rays relating to the case before the preliminary hearing.

"D. Smith failed to deliver the material requested," he says.

"In fact he lost the slides for some time, although he eventually found them.

The X-Rays, however, were lost and never found."

Misinterpreting artifact's:

Justice Goudge reports that Dr. Smith also misinterpreted artifact's in Joshua's case - Just as he had in Valin's case and Nicholas' case.

In Joshua's case, for example, Dr. Smith performed the post-mortem examination and found a microscopic hemorrhage in the connective tissues of Joshua's neck.

Dr. Smith concluded that the cause of death was asphyxia,and testified at the preliminary hearing in the case that the hemorrhage was a "worrying" finding, suggesting that Joshua was suffocated.

"That diagnosis was wrong" says Justice Goudge.

"The experts who examined the microscopic slides determined that the hemorrhage was likely caused during dissection at the autopsy.

It likely was a post-mortem artifact and was therefore unrelated to Joshua's cause of death."

Delay:

Charles Smith got caught in a lie relating to delay in the context of Joshua's case;

In March 1996, he told a police officer that he had completed his final post-mortem report, was waiting for it to be typed, but was typing the report himself at home at night because he had no administrative assistant and was the only pathologist on schedule for the next few days.

"This was untrue," says Goudge.

"Dr. Smith had access to an administrative assistant, and the 1996 schedule for pathologists showed that Dr. Smith was not the only pathologist on rotation for the few days following his conversation Sergeant MacLellan,

Despite this, when Sergeant MacLellan advised that he needed the report by the following Tuesday because court proceedings were scheduled for Wednesday, Dr. Smith responded that he did not think the report would be ready y then."

Ongoing communication with the police;

Justice Goudge heard evidence that at a meeting with police on February 8, 1996, Dr. Smith, when asked, said that he believed Sherry Sherret had killed Joshua.

"He said that mothers who kill their babies share certain characteristics," said Goudge.

"For example, they usually talk about it ahead of time, or they might be involved in relationship fights or custody battles, as a result of which they may be trying to get back at the baby's father."

But Justice Goudge concluded that Smith's remarks about the characteristics of mothers who kill their children were also inappropriate, since they were beyond his expertise.

"To say that he believed that Ms. Sherret killed her son on the basis of "hallmark characteristics" was inappropriate," said Goudge.

"He had no expertise to say so."

The speculating expert:

Justice Goudge ruled that Dr. Smith should not have offered opinions that were "speculative, unsubstantiated, and not based on the pathology findings" as he did in his evidence at the preliminary hearing in Joshua's case when he said he was "highly suspicious" that Joshua had been suffocated - even though there was no pathological evidence to support the opinion."

"I find it hard to accept Dr. Smith's explanation that he did not know that he ought not speculate," said Goudge. Pathologists provide pathology opinions. I do not see how pathologists can believe that, when there is no pathology evidence, it is open to them to speculate on what could have happened."

This humble Bloggist is quite confident that Dr. Smith was well aware that he should not give speculative evidence in court.

Whether it was based on pathological evidence or not, it certainly was an excellent way to make sure the accused parent or caregiver was convicted.

The expert and casual language;

Dr. Smith's propensity from time to time to use language that was loose and unscientific shone through in Joshua's case where he testified that, if he were a "betting man" he would say that Joshua's death was non-accidental.

It sounds like another sure-fire trick to get a conviction to me - and reinforces my belief that one has to stretch and contrive in order to convict an Innocent person.

What else would you expect from a supposedly neutral person who saw himself as a member of the prosecution team?

Cooperating with other experts:

Justice Goudge notes that court proceedings had to be postponed because Smith did to requests to locate and forward autopsy materials from Joshua's case to another pathologist for review.

This was typical of Smith.

The last thing he would ever have wanted was to have his work reviewed by another set of eyes (a truly expert set of eyes) - especially someone hired by the defence who may not have bought into his mystique.

Indeed, virtually all of his delays, could be interpreted as efforts to avoid countability - rather than the lack of training that he claimed.

Harold Levy...hlevy15@gmail.com;

JUSTICE GOUDGE'S FINDINGS: PART NINE; PAOLO'S CASE;

Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.

I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.

I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.

Justice Goudge's findings relating to the various cases have been scattered throughout the report.

My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;

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Since the Goudge Inquiry did not publish an overview of Paolo's case, here is a Blog I published on Thursday, November 8, 2007, under the heading, "Trotta: Supreme Court Discredits Smith: A Defining Moment";

"The Supreme Court of Canada has recognized the havoc caused by Dr. Charles Smith on Canada's criminal justice system," the post began.

"(The Globe and Mail got it right in an editorial following release of the results of the Chief Coroner's review when it described Dr. Smith as an "earthquake" that struck our justice system over and over again), it continued.

"This was the first time that the Supreme Court has delivered a judgment on a case in which Dr. Smith was the issue.

"Essentially the fresh evidence - mainly the expert opinions of Dr. Michael Pollanen and Dr. Simon Avis - discredits the evidence given at trial by Dr. Charles Smith, an expert called by the Crown," Justice Morris Fish wrote for the unanimous court. "And the evidence of a second Crown witness at trial, Dr. David Chan, has been rendered unreliable as a result..."

(The Supreme Court of Canada's description of the once-renowned Crown expert's evidence as "discredited" is akin to a General's epaulettes being pulled off in disgrace by the Commander-in-chief);

"We think it neither safe nor sound to conclude that the verdicts on any charges would necessarily have been the same but for Dr. Smith's successfully impugned evidence."

(Justice Fish explains that the Court cannot provide any more details than necessary about the fresh evidence because it directed a new trial on all counts);

The Trotta decision falls closely on the heels of the Ontario Court of Appeal decision acquitting William Mullins-Johnson in the first-degree murder of his 4-year-old niece Valin - which we now know to be an alleged crime that never occurred. (See earlier posting: Mullins-Johnson acquittal: Notable quotes);

So now both the Supreme Court of Canada and the Ontario Court of Appeal have closely examined Dr. Smith's work in two cases where he was the central crown witness and found that the Emperor was wearing no clothes.

The toll in the just these two cases:

Mullins-Johnson served more than twelve years of his first-degree sentence before being released from custody pending his application for a ministerial review;

Marco Trotta had served nine years of a life sentence with no chance of parole for fifteen years as his son's killer.

Anisa Trotta had completed serving her five year term for negligent homicide and failure to provide the necessaries of life;

And that's just the cost in terms of years.

All because of the once celebrated Dr. Charles Randal Smith.

Globe and Mail reporter Kirk Makin got it right yesterday in a report published on the Globe's Web-site shortly after the judgment was released:

"Thursday's ruling was a major victory for lawyers James Lockyer and Michael Lomer," wrote Makin.

"They had tried to persuade the court that, by misidentifying or fabricating injuries – and then overstating his evidence at the Trotta trial – Dr. Smith had poisoned the entire proceeding."

"The Supreme Court of Canada has now encapsulated what has become more and more clear in recent years - that Dr. Smith's mistakes have discredited him," Mr. Lomer said in an interview (with Makin).

For Dr. Smith, the light at the end of the tunnel is the train."

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Justice Goudge concludes that Deputy Chief Coroner, Dr. Jim Cairns, defended Dr. Smith's work in Paolo's case by providing an expert pathology opinion (which he did not have the expertise to provide) - in the same manner as Chief Coroner, Dr. James Young, had written a supportive letter (drafted by Smith's lawyers) to the College of Physicians and Surgeons of Ontario which was investigating Smith at the time;

"This time it was in relation to Dr. Smith's pathology opinion in Paolo's case," said Gouge.

"In so doing, Dr. Cairns exceeded his expertise, the effect was to shield Dr. Smith's opinion from further scrutiny."

Justice Goudge also concludes that Dr. Cairns made "three incorrect misrepresentations to Crown Law Officer Lucy Ceccheto about the nature of the 2001 review of Dr. Smith's work and Dr. Smith's status regarding coroner's cases, as follows:

0: that Dr Smith's work in approximately 20 cases had been reviewed, in 18 of those there was no difference of opinion with Dr. Smith, in the other two the difference of opinion was limited to where experts might reasonably agree;

0: that there was no suggestion from these reviews that Dr. Smith was incompetent or negligent in these cases;

0: that following the review, Dr. Smith was returned to the autopsy roster in June, 2001 and that, as far as the Chief Coroner's Office was concerned, Dr. Smith was competent to conduct any autopsy;

"None of Dr. Cairns three statements was correct," write Goudge, adding that Cairns did not take any steps to correct the misunderstandings.

"This failure to act had the effect of misleading Crown and defence counsel about the rigour of the Chief Coroner's Office process and the scope of Dr. Smith's practice after June 2001."

Justice Goudge also faults Cairns for confirming in a letter to Ms. Cecchetto in a letter that he had conducted a, "thorough review" of Dr. Smith's work in Paolo's case, including the autopsy report, photographs, and expert testimony at the trial - and he confirmed that, "he had no concerns regarding the opinion given by Dr. Smith and (saw) no reason what so ever for the Chief Coroner's Office or the Crown to hire another expert."

Once again, in the words of Justice Goudge: "Dr. Cairns was wrong."

"Other experts reviewed the case.

Dr. Smith's opinion was sufficiently discredited by other pathology experts that the Supreme Court of Canada ordered a new trial for Paolo's parents.

As with his affidavit in Nicholas' case, Dr. Smith did not have the expertise to provide this opinion.

A proper review required expertise in forensic pathology.

Moreover, at the time Dr. Cairns provided the unqualified opinion,he was fully apprised of the serious concerns about Dr. Smith's competence, integrity and judgment arising from cases such as Jenna's.

This incident provides yet another example of the importance about experts undertaking and respecting the limits of their expertise.

As he candidly acknowledged at the Inquiry, Dr. Cairns had absolutely no business offering this opinion."

In this Blogster's humble opinion, this incident provides yet another example of the axiom (Levy's law) that without basic honesty and a commitment to communicating the truth to other actors in the criminal justice system on the part of those who run our Coroner's system, you can make all the systemic changes in the world and nothing will ever change.

Harold Levy...hlevy15@gmail.com;

Part Two: Work Of Other Pathologists Who Conducted Pediatric Autopsies in Ontario Must Also Be Reviewed; Closing Submissions; AIDWYC And M.J. Group;

"THROUGHOUT HIS TENURE, THERE WAS VIRTUALLY NO OVERSIGHT OR PEER REVIEW OF POST MORTEM REPORTS IN THE PROVINCE.

IT IS REASONABLE TO CONCLUDE, THEREFORE, THAT ERRORS ARE LIKELY TO HAVE OCCURRED BY OTHER PATHOLOGISTS DURING DR. SMITH’S TENURE.

A REVIEW MUST THEREFORE BE UNDERTAKEN OF ALL PEDIATRIC AUTOPSIES CONDUCTED IN ONTARIO SINCE 1981 IN CASES THAT RESULTED IN CRIMINAL CONVICTIONS."

CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;

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The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.

For this reason, I am devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:

Today's focus is on a section in which the two parties point out that the Inquiry has raised doubts about the opinions of other pathologists in Ontario who conducted pediatric autopsies over the years - and recommends a review of all pediatric autopsies in the Province of Ontario Since 1981

(This would include, at a minimum, a review of all of Dr. Smith’s work from 1981 to 1991);

"While efforts have already begun to identify pre-1991 cases, that project must continue," this section of the closing submissions begins.

"There have been consistent problems in Dr. Smith’s cases," it continues;

"His forensic pathology was dreadful, his evidence was over-stated and emotive, and his conclusions were wrong.

Dr. Smith’s own evidence - that his education and training in forensic pathology was ‘woefully inadequate’, that he was ‘profoundly ignorant’ of the role of an expert witness in the courts, and that he did not understand the importance of, nor the procedures for, maintaining the continuity of evidence – suggests that those problems undoubtedly plagued his earlier work.

Again, quoting Dr. Smith’s own words, he had “extraordinarily limited… knowledge or expertise” and it was “potentially dangerous” for him to work on some cases.

His testimony in these cases nonetheless betrayed no uncertainty; he himself described it as “defensive or dogmatic or adversarial”.

Dr. Pollanen has said the reviews of Dr. Smith’s pathology opinions established there “is a reasonable basis to believe that problems might exist with Dr. Smith’s cases prior to 1991”.

All cases which relied on pathology opinions rendered by Dr. Smith require review.

Dr. Smith was not, however, working in isolation; he was the Director of the Ontario Pediatric Forensic Pathology Unit for over two decades.

Several forensic pathologists worked under his influence and administration.

He provided countless consultations (many of them undocumented) to pathologists across the province and across the country, and was viewed as an “icon” by pathologists in the field.

Throughout his tenure, there was virtually no oversight or peer review of post mortem reports in the province.

It is reasonable to conclude, therefore, that errors are likely to have occurred by other pathologists during Dr. Smith’s tenure.

A review must therefore be undertaken of all pediatric autopsies conducted in Ontario since 1981 in cases that resulted in criminal convictions.

Dr. Smith was accorded unparalleled respect and deference by his peers.

They were unwilling to challenge him.

For example, in the case of Valin, Dr. James Ferris, a respected forensic pathologist who had been retained by the defence at trial, admitted in a recent report that:

"…there’s no doubt that, at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian… I was concerned, at that time, with the opinions expressed by Dr. Smith in the case and, since that time, I found myself disagreeing with his forensic pathology opinion expressed in several cases."

He continued:

"I’m now aware that his professionalism is being questioned by others, and I was clearly in error to accept, so readily, his opinions in the case.

Finally, his report concluded:

"Having reviewed all the evidence and materials referred to, it’s clear that my opinions were unduly influenced by my instructions from [defence counsel] and my ready acceptance of the opinions of Doctors Zehr, Mian, and Smith.

It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience."

In the case of Baby M, a pathologist consulted by defence counsel who testified at the Inquiry indicated that Dr. Smith was the foremost expert in forensic pathology, and that she would not be prepared to challenge his findings.

If independent pathologists retained by the defence were unwilling to challenge Dr. Smith and allowed their judgment to be clouded by his celebrated status, it is a reasonable inference that physicians working beneath him did too.

A particularly disturbing example of this pattern is the meeting that took place regarding Sharon’s case between Dr. Smith, Dr. Wood, Dr. Cairns, Dr. Chiasson, Mr. Blenkinsop and Dr. Queen, not long after the autopsy.

Each expert at the meeting deferred to Dr. Smith’s contention that the wounds were not caused by dog bites, except for Dr. Queen, who believed they might, indeed, have been caused by a dog.

He did not advance these views forcefully, however, likely because he was a relatively junior member of Dr. Smith’s staff.

Dr. Cairns, the Deputy Chief Coroner and Dr. Smith’s superior at the time, now belatedly admits that he “put undue faith in Dr. Smith”, and that he believed that Dr. Smith was ‘the’ pathologist, an opinion shared by many in his office, the media, the Crown and defence bar, and the judiciary.

It took him “a long time to come to the realization (that there was a problem)… because he had put him on such a pedestal”.

Dr. Smith was widely consulted by other pathologists around the country, and was seen as the ‘go-to guy' in pediatric forensic pathology.

Pathologists were advised to call him for a consultation during the course of an autopsy, which may well have affected their conclusions.

It appears that many of those consultations were unlikely to have been recorded, and therefore identifying only the cases in which Dr. Smith was definitively involved would be impossible.

This inability to trace Dr. Smith’s influence is one of the factors which demands a comprehensive review.

There was no adequate supervision of Dr. Smith during his tenure, or of any other pathologist conducting medicolegal autopsies under the auspices of the Chief Coroner.

Dr. Smith had no proper training in forensic pathology.

Yet, he was the one who reviewed every report that came out of the unit.

In a telling exchange, Maxine Johnson, the Hospital for Sick Children Pathology Unit’s administrative coordinator, described the process:

"Commissioner: There was no practice for the CF12 to be reviewed by another pathologist before it was signed out to the Chief Coroner's Office;

A: Not for Dr. Smith. But the other pathologists had to give theirs to Dr. Smith because he was the Director of the Unit. So the pathologists would, you know, do their case. We’ll give it to Dr. Smith. He would review it, you know, make any suggestions to those pathologists –

Q: Right.

A: - and – but as far as Dr. Smith –

Q: So the practice was it would not be signed out by the case pathologist until the CF12 had been reviewed by Dr. Smith?

A: Most of the times, yes."

Until 1994, there was absolutely no formal review mechanism for post-mortem reports issued by pathologists working on behalf of the Chief Coroner’s Office.

In 1995, Dr. Chiasson instituted a bare-bones review process which consisted of simply ensuring the report itself met a basic standard, and attaching a ‘checkmark form’ - as it came to be known - to each completed report.

There was no review of photographs, slides, or underlying histology.

As Dr. Chiasson acknowledged, a review of this nature would not have identified a flawed analysis involving a misinterpretation of an injury or pathological conclusions from microscopic or histologic findings.

Dr. Chaisson had the sole responsibility for reviewing all 1,500 reports each year, which allowed for no more than a cursory scan of the report.

In cross examination by Mr. Campbell, Dr. Chiasson acknowledged that his review process would not have caught many of Dr. Smith’s mistakes:

Q: Knowing now what you didn’t know then, it would be fair to say that you needed a bit more insight into the factual substratum of the – the autopsies to identify some of the things that we now know were in error. Is that – would you accept that?

A: I would accept that, yes. A lot of the issues revolve – specific questions relating to circumstances of a death that were not information that wasn’t provided in the PM reports, yes.

Dr. Chiasson also acknowledged that his own lack of expertise with pediatric cases may have contributed to his inability to provide effective oversight.

He paid little attention to the reports of pathologists whom he knew and respected. As he candidly explained in his testimony:

“I was reviewing pathologists who I got to know very quickly. And – and a review in that case may have been simply looking at the bottom line, looking at the summary, and thank you very much”.

This admission, while commendable, does not inspire public confidence that no other miscarriages of justice occurred during his tenure.

Dr. Smith’s errors went undetected by the only review process in place, and common sense dictates that the errors of others did as well.

The work of Dr. Brian Johnston, who was, and still is, the Director of the Eastern Ontario Regional Forensic Unit is now the subject of controversy.

For over a decade, alarm bells were ringing regarding his competence and his propensity to reach critical conclusions that were not supported by medical or scientific evidence.

In one particularly shocking example, which parallels some of Dr. Smith’s cases, the natural death of an adult was attributed to strangulation causing an innocent person to be held in custody for some time.

Nevertheless, he was allowed for years to continue conducting the majority of criminally suspicious autopsies at the Eastern Ontario unit simply because there was nobody to take his place.

Dr. Chiasson identified persistent problems with the validity of Dr. Johnston’s conclusions and his administrative capabilities.

He made efforts to engage Dr. Johnson in remedial steps, without success, and his repeated pleas to have him removed as Director were ignored by Dr. Young.

It was not until February, 2007 that Dr. Johnston and the rest of the Ottawa staff were formally notified that they were no longer permitted to do homicide or criminally suspicious cases for the Chief Coroner's Office;

This provides one more reason for a Province-wide review.

As well, the lens of the “think dirty” regime that pervaded the death investigation system after the release of “Memo 631” on April 10, 1995 must have tainted the objectivity of pathologists throughout the Province.

As Dr. Chiasson and others acknowledged, pathologists would have been vulnerable to pressure from the police to make findings consistent with their pre-existing theory of the case.

Recommendations from this Inquiry will help to solve these kinds of problems in the future, but future improvements will not uncover past mistakes.

Several highly qualified and knowledgeable witnesses at the Inquiry supported an examination of other cases.

Dr. Crane supported it.

Dr. Butt suggested that it would be “a prudent thing to do”.

Dr. Cairns considered a further review to be an ‘ethical duty’.

Dr. Pollanen, the Chief Forensic Pathologist of Ontario, agreed that to restore public confidence in pediatric forensic pathology, a range of cases much broader than those of Dr. Smith needed to be examined.

There are relatively low numbers of pediatric homicides in Ontario each year.

45 of them have already been examined.

A review of the remaining cases is unlikely to be a great deal more demanding than the review that led to this inquiry.

The number of pediatric homicides and criminally suspicious deaths in Ontario each year can be estimated at between 10 and 20, with 5 to 15 of these occurring in children under the age of five.

Of those, only a fraction would have resulted in criminal convictions.

The number of criminally suspicious pediatric deaths since 1981 therefore falls into a range of approximately to 200 to 300 at the very most, 45 of which have already been reviewed.

In the Goldsmith Review, almost 300 cases were studied within the span of approximately 10 months.

This effort has significant systemic value beyond the obvious utility of correcting errors and doing justice in individual cases.

The evidence heard at the Inquiry suggests that the Chief Coroner's Office has not, until recently, acknowledged, confronted, and worked to correct possible errors resulting from their pathologists' work.

This Inquiry heard evidence about a litany of circumstances that ought to have sparked an earlier, comprehensive review of Dr. Smith's work, including the following:

0: the judgment delivered by Justice Dunn in 1991 acquitting Amber's babysitter of homicide, which seriously criticized Dr. Smith's work and his lack of objectivity;

0: the 1999 abandonment of the Children's Aid Society child protection application after the investigation of Nicholas' death and the receipt of sharply conflicting expert opinions, followed by Maurice Gagnon's litany of complaints between 2000 and 2003 to those whom he hoped would listen;

0: the 1999 withdrawal of homicide charges against Jenna's mother once substantial expert evidence emerged that challenged Dr. Smith's opinion, and,

0: the College of Physicians and Surgeons investigations of Dr. Smith which commenced in 1999.

Instead, in January 2001, after the withdrawal of criminal charges against Tyrell's caregiver and Sharon's mother, an internal review of the pathology in only those two cases was conducted.

A broader, external review of Dr. Smith's work was aborted.

51 Dr. Smith wrote to Chief Coroner Dr. Young and requested he be removed from the roster of pathologists doing medico-legal autopsies.

(He later started again.)

James Lockyer, as a Director of AIDWYC, requested a review following the revelations about these two cases.

Dr. Young responded that no comprehensive review would be performed.

Two articles were published in Maclean's Magazine in May 2001, "Dead Wrong" and "The Babysitter Didn't Do It," which set out some of the history.

No review followed this adverse publicity; Dr. Cairns' comments quoted in the articles were supportive of Dr. Smith.

In December 2001, David Bayliss, as a Director of AIDWYC, wrote to Dr. Cairns to request a review of the pathology in William Mullins-Johnson's case; this would not follow for several years58.

Another internal review of pathology, later supplemented by an external consultation, at the request of the investigating police service, confirmed difficulties in Jenna's case.

It was not until intensifying media scrutiny of the lengthening list of problematic cases in 200360, with the stay of proceedings ordered by Justice Trafford in Athena's case in June of that year, that Dr. Smith resigned from all coroner's autopsy and committee work, and in July 2004, from his position entirely.

A tissue audit was prompted by materials missing in Mullins-Johnson's case, and the media attention and public pressure relating to this and controversy over Jenna's case led to the Chief Coroner's June 2005 announcement of his decision, finally, to review and scrutinize Dr. Smith's cases for errors in pathology opinions.

A decade and a half had passed since Justice Dunn's ruling.

Part of this Commission's mandate is to make recommendations that will assist to "restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings."

Public confidence will be restored not only by changes made to improve the system in the future to avoid the repetition of errors, but also by a scrupulously fair and penetrating review of past cases where those errors may have occurred.

The press releases from the Chief Coroner's Office in 2005 and 2007, as the review of Dr. Smith's work started and finished, explicitly make this connection.

The Chief Coroner's Office stated at the outset that, "Conducting this review is an essential step in maintaining the public confidence in all of the important work that is done, day in and day out, by coroners and pathologists who provide service for the Office of the Chief Coroner and the public," and at the conclusion that, "maintaining public confidence in the Ontario Coroner's System was an underlying reason for conducting this review."

The same holds true for a more comprehensive review.

Even if a difficult or time-consuming process, these reviews are essential to demonstrate to the public that the Chief Coroner's Office has successfully combated the culture of avoidance which created the environment to allow errors to be made and to stand uncorrected."

Harold Levy...hlevy15@gmail.com;

Regulating Doctors Who Practice In The Area Of Forensic Pathology: Is The Ontario College Up To The Job?

FILED EARLY FOR WEDNESDAY APRIL 23, 2008;

"THIS STRONGLY SUGGESTS THAT A BODY CHARGED WITH GENERAL OVERSIGHT OF THE MEDICAL PROFESSION AS A WHOLE MAY NOT BE IDEALLY SUITED FOR OVERSIGHT OF SPECIFIC ISSUES ARISING FROM THE ROLE PLAYED BY FORENSIC PATHOLOGY IN THE JUSTICE SYSTEM."

CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;

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One of the crucial questions raised by the evidence called at the Goudge Inquiry is why the College of Physicians And Surgeons of Ontario did not do a better job of protecting the public from Dr. Charles Smith.

The Affected Families Group suggests, in its closing submissions, that the College did not have a sufficient knowledge of issues involving forensic pathology to do a proper job.

"It is arguable that the College of Physicians and Surgeons of Ontario is the only body that ever exerted anything that remotely resembled effective oversight of Dr. Smith," the Group's closing submissions on this topic begin.

"Following the decision of the Health Professions Appeal and Review Board in February, 2000, which determined that the College did have jurisdiction to consider DM’s (the babysitter's father) complaint, the Complaints Committee dealt with the merits of complaints by DM, Brenda Waudby, and Maurice Gagnon, and required Dr. Smith to attend before the panel of the Committee to be cautioned in all three cases," they continue.

"The College considers a reprimand to be a significant regulatory sanction, according to Dr. Gerace. (College Registrar)

Moreover, the Complaints Committee, assisted by its expert panel, appears to have reached conclusions on Dr. Smith’s forensic pathology work in all three cases which parallels evidence heard by this Inquiry:

0: In the Amber case, the panel concluded that Dr. Smith’s work was not as thorough as it should have been and that he was overly dogmatic in stating his conclusions;

0: In the Jenna case, the panel criticized Dr. Smith’s failure to review clinical information, as well as his failure to conduct an adequate examination with respect to sexual assault, and, most specifically, concluded that his estimate of the time during which the fatal injuries were received was far too broad;

0: In the Nicholas case, the deficiencies noted by the panel were similar to many of those outlined by Mr. Gagnon in his initial letter of complaint to the Chief Coroner's Office.

However, there were important deficiencies in the results of the complaints in each case.

First, and most important, the Complaint Committee’s conclusion in all three cases was that Dr. Smith “met the standards expected of a pathologist assisting the coroner in an investigation”.

To the contrary, this Inquiry has heard expert evidence in all three cases that Dr. Smith’s opinions and testimony were deeply flawed and did not meet forensic pathology standards.

This strongly suggests that a body charged with general oversight of the medical profession as a whole may not be ideally suited for oversight of specific issues arising from the role played by forensic pathology in the justice system.

Second, the complaint committee clearly did not reach the appropriate conclusion with respect to Dr. Smith’s handling of the hair in the Jenna case.

The Review Board's conclusions on appeal completely contradict the evidence heard before this Inquiry.

In retrospect, this appears to be because the expert panel accepted Dr. Smith’s explanation in isolation, not being aware of information provided by DC Charmley (Peterborough police officer) to the College Investigator, Ms. Doris, or of the explanation provided by Dr. Smith to Dr. Cairns.

Third, the expert panel appears to have been unaware that at the time of Dr. Cohl’s interview with Dr. Smith (for the College H.L.), he had been suspended by the Chief Coroner's Office from doing coroner’s autopsies in criminally suspicious death cases.

Indeed, the Minutes of that interview suggest that Dr. Smith was less than candid about his status.

Had the College been aware of his suspension, the Complaint Committee might well have determined to take further investigatory steps."

I read with interest the College's position that a reprimand is a significant regulatory sanction.

The reality is that reprimands are not considered important enough to be posted on the College's Web-site.

Dr. Smith was therefore shielded from the scrutiny from anybody - or any other medical jurisdiction - that might be interested in his professional record.

The information that Dr. Smith was found to have demonstrated serious deficiencies in his work in three cases is nowhere to be found on the College Web-Site.

If you go to the that site, and check under "findings" you will be told "no past findings."

Of even greater concern to this Bloggist is that Dr. Smith's "status" is listed as "active" on the "terms and conditions" section of the site - and a note indicates that "Dr. Charles Randal Smith has entered into a voluntary undertaking not to practice forensic pathology in Ontario, prior to April 25, 2008.

That undertaking expires on Friday.

One way to judge whether the Ontario College has any teeth will be whether it brings any discipline proceedings against Dr. Smith in connection with allegations at the Inquiry that he mislead College investigators looking into the three complaints.

Harold Levy...hlevy15@gmail.com;

Part Two: Case Studies; Systemic Factors; The "Nicholas" Case; Presented By The Affected Families Group;

IT WAS ALSO CLEAR THAT ANY DISCUSSION BY DR. YOUNG OF A COMPLAINTS PROCESS HAD, AT ITS CORE, THE MAINTENANCE OF PROFESSIONAL REPUTATIONS AT ALL COSTS:

…. "WHAT HAPPENS IS THAT PEOPLE GO FROM COMPLAINT MECHANISM TO COMPLAINT MECHANISM TO COMPLAINT MECHANISM. AND WE DEAL LITERALLY THESE DAYS WITH COMPLAINTS IN - INTO THE CORONERS OFFICE, A COMPLAINT TO THE COLLEGE, A COMPLAINT TO THE OMBUDSMAN, A COMPLAINT TO THE MINISTER, A COMPLAINT TO THE PRESS AND IT – IT LITERALLY CAN GO ON FOR EXTENDED PERIODS OF TIME. AND – AT SEVERAL POINTS THERE’S CONSIDERABLE JEOPARDY THAT PEOPLE ARE IN IN TERMS OF THEIR PROFESSION."

THE ABOVE-MENTIONED “COMPLAINT MECHANISMS” WERE ALL OF THE AVENUES THAT MR. GAGNON PURSUED IN HIS QUEST FOR ACCOUNTABILITY AND REDRESS. IRONICALLY, WERE IT NOT FOR THE STRENGTH AND THE TENACITY OF INDIVIDUALS LIKE S.M.’S FATHER, NICHOLAS’ GRANDFATHER, AND JENNA’S MOTHER IN GOING FROM “COMPLAINT MECHANISM TO COMPLAINT MECHANISM TO COMPLAINT MECHANISM”, DR. CHARLES SMITH WOULD HAVE REMAINED FIRMLY ENTRENCHED IN PLACE IN HIS POSITION AS DIRECTOR OF THE OPFPU.
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CASE STUDY; NICHOLAS CASE; SYSTEMIC FACTORS; THE AFFECTED FAMILIES GROUP;

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Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.

These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;

The second case has been identified by the Inquiry as the "Nicholas" Case;

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By way of brief background:

Nicholas was born in Sudbury, Ontario on January the 2nd, 1995 and died on November 30th, 1995, also in Sudbury.

He was 11 months old at the time of his death.

Criminal proceedings were not initiated.

The local Children's Aid Society initiated proceedings in respect of the mother's second child born in 1998.

The proceedings concluded in March of 1999 when the Children's Aid Society withdrew the protection application.

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"The key systemic issues in the Nicholas case are confirmation bias, noble cause corruption, the role of forensic pathology in child protection proceedings, and lack of an effective and independent complaints process," the case study begins;

"In particular, the Nicholas case provides an excellent example to the Commission of the type of case impacted by Memo #631, and the potential consequences of “thinking dirty” and assuming a non-accidental death “in the absence of evidence to the contrary”, it continues;

"The initial conclusion in the Nicholas case was “Sudden Unexplained Death”.

Upon review by the Regional Coroner in November, 1996, this conclusion was determined to be unsatisfactory and the case was referred to the Pediatric Death Review Committee, chaired by Dr. Cairns.

The case was assigned to Dr. Smith for review,196 the rationale being that if it became necessary to give evidence in court proceedings, the “committee” could not give evidence.

Dr. Smith’s consultation report stated that “in the absence of an alternate explanation, the cause of death of this young boy is attributed to blunt head injury.”

After a meeting held between Dr. Smith, Dr. Cairns, the Regional Coroner, and police investigators, the circumstances of the death were considered to be “highly suspicious” and it was determined that an exhumation would be of assistance.199

Approaching the case from a “think dirty” perspective suggested that the death was non-accidental unless the results of the autopsy proved otherwise.

Dr. Smith’s initial consultation report was based on what Inspector Keetch has called “the five pillars” of the case:

0: cerebral edema;
0: increased head circumference;
0: splitting of the skull sutures;
0: suspected mandibular fracture; and
): scalp injury.200


Following the exhumation of Nicholas it was apparent that most, if not all, of these pillars had collapsed.

There was no mandibular fracture.

Dr. Smith was given information which explained the increased head circumference.

The splitting of the sutures was described as “mild.”

At that point, Dr. Smith’s focus shifted, as he attempted to use what was clearly a post-mortem artefact201 to bolster his opinion.

This is a clear example of what Dr. Pollanen has referred to an additional aspect of confirmation basis – the tendency to refuse to acknowledge contradictory facts which might push the death investigation process toward the correct answer.202

In this case Dr. Smith later was described by Dr. Mary Case, the CPSO Complaints Committee, and Dr. Crane as exaggerating or over-stating the opinions of others in order to lend support to his own erroneous conclusion.

For example, the various statements regarding possible skull and mandibular factures throughout the criminal investigation and the child protection proceedings are as follows:

0: Dr. Babyn [letter to Dr. Cairns, Jan. 13, 1997]:

0: mild diastasis of the coronal and sagittal sutures with an area in the occiput which may be an accessory suture…. There is a region of apparent disruption of the neck of the left mandibular condyle suspicious for an angulated fracture…

0: Dr. Smith [Consulation Report, Jan 24, 1997]:
A preliminary evaluation of the post-mortem radiographs was given by Drs. Paul Babyn and Derek Armstrong … there was a splitting of the skull sutures. A left-sided mandibular fracture was present.

0: Dr. Babyn [findings in Report of Post-Mortem, June 26,1997]:
…latrogenic changes including prior opening of the calvarium are noted, with disruption of the metallit suture evident. No definite fracture of the skull, mandible, ribs or visualized skeleton otherwise seen.

0: Dr. Smith [Notanda – Report of Post-Mortem, June 26, 1997]:
…this second postmortem examination revealed no fracture of bone, although the presence of soft tissue injury could not be excluded. Hemorrhagic discolouration was seen along the skull sutures, in keeping with the initial radiographic observation of split sutures.

0: Dr. Smith [CAS Affidavit, June 29, 1988]:
marked widening of skull sutures” and “changes to the left side of the mandible which could be interpreted as mandibular fracture”;

0: Dr. Smith [CAS Affidavit, June 29, 1998]:

0: widely split skull sutures;

In his evidence, Inspector Keetch stated that he was not aware of the conflicting language used to describe the skull sutures and, further, was not aware of the differences that may exist between them.

It may be argued that child protection proceedings provided the forum which was most ready to accept the erroneous conclusions of Dr. Smith and Dr. Cairns.

Indeed, we have seen that language such as ‘in the absence of evidence to the contrary’ may well be sufficient to secure a child’s removal from a parent’s care.

The child protection proceedings in the Nicholas case were initiated at the termination of the criminal investigation for two reasons: Lianne Thibeault was pregnant, and she was in school with the intention of becoming a teacher.


It is respectfully suggested that Dr. Smith and Dr. Cairns remained adamant that Ms. Thibeault had killed Nicholas and more than willing participants in trying to hold her accountable in any way possible.

As Insp. Keetch indicated, the last meeting regarding the criminal investigation was very emotional, with the Chief of Police visibly upset that she was going to “get away with” it.

It is noteworthy that at the first meeting Dr. Smith attended with the CAS on May 7, 1998, he told them that he was 99% sure that it was a non-accidental death.

The Crown had not been satisfied that “in the absence of an alternate explanation” met the criminal standard;

Dr. Smith was determined to ensure that the same issue did not arise again in the child protection context.

What is of equal concern, for the purposes of this Inquiry, is the participation of Dr. Cairns as Deputy Chief Coroner.

Dr. Cairns swore an Affidavit for these proceedings which stated:

I am aware of the contents of Dr. Smith’s Affidavit. I share the opinions stated in the Affidavit, having had the opportunity to review, consider and discuss the opinions of Dr. Smith.

In his evidence, Dr. Cairns acknowledge that it was inappropriate for him to file an Affidavit in support of Dr. Smith’s opinion when he was clearly not qualified to opine on the pathological findings in the case, and that he knew or ought to have known that in doing so his position as Deputy Chief Coroner would carry significant weight.

The goal of preventing child abuse – a noble cause – appears to have blinded Dr. Cairns to the appropriateness of the means.

Mr. Gagnon’s complaints and their resolution have already been discussed.

However, one aspect should be highlighted here – the attitude of Dr. Young in dealing with complaints of this nature.

Throughout Dr. Young’s evidence before this Inquiry, it was made abundantly clear that he remains dismissive of those “pen pals” like Mr. Gagnon who for years remained engaged in a “never-ending debate” without resolution.

It was also clear that any discussion by Dr. Young of a complaints process had, at its core, the maintenance of professional reputations at all costs:

…. what happens is that people go from complaint mechanism to complaint mechanism to complaint mechanism. And we deal literally these days with complaints in - into the Coroners Office, a complaint to the College, a complaint to the Ombudsman, a complaint to the Minister, a complaint to the press and it – it literally can go on for extended periods of time. And – at several points there’s considerable jeopardy that people are in in terms of their profession.

The above-mentioned “complaint mechanisms” were all of the avenues that Mr. Gagnon pursued in his quest for accountability and redress. Ironically, were it not for the strength and the tenacity of individuals like S.M.’s father, Nicholas’ grandfather, and Jenna’s mother in going from “complaint mechanism to complaint mechanism to complaint mechanism”, Dr. Charles Smith would have remained firmly entrenched in place in his position as Director of the OPFPU."

Harold Levy...hlevy15@gmail.com;

Part Seventeen: Closing Submissions; Affected Families Blast Former Chief Coroner's continued support of Dr. Charles Smith;

"AS LATE AS NOVEMBER, 2002, DR. YOUNG WAS STILL SUPPORTING DR. SMITH;"

CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP;
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This Blog is currently focussing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on a section in which the group argues that former Chief Coroner Dr. James Young continued to support Dr. Smith - even after receiving evidence that raised serious questions as to his competence, veracity, and potential obstruction of justice.

"In fact, as time went on the Chief Coroner's Office learned information about Dr. Smith which should have triggered immediate consequences," the section, under the caption "Following the Discovery of the Hair, Dr. Young Continues to Support Dr. Smith," begins;

"In particular, beginning in November, 2001 Dr. Cairns became involved in the Jenna case, where as a result of Det. Charmley’s reinvestigation the hair was rediscovered," it continues;

"Following Dr. Cairns meeting with Dr. Smith and his wife, he knew that Dr. Smith’s explanation about his discovery of the hair made no sense and was likely false.

Prior to April 10, 2002, Dr. Young was briefed by Dr. Cairns on what he had learned.

He acknowledged in his evidence that this issue raised serious questions.

Those included Dr. Smith’s competence, veracity, and potential obstruction of justice.

And yet, the Chief Coroner's Office took no steps whatsoever as a result of this information (except that of Dr. Cairns notifying the Registrar of the College of Physicians and Surgeons Of Ontario of his concerns).

Dr. Smith continued to sit on the Pediatric Death Review Committee and Death Under 2committees. Furthermore, he continued to be the nominal head of the Ontario Pediatric Forensic Pathology Unit.

As a result, for a lengthy period Dr. Smith continued, at least in theory, to be responsible for the review of autopsy reports of other Hospital for Sick Children pathologists in criminally suspicious child death cases, while at the same time being prevented from doing such autopsies himself!

Further, inexplicably, on April 10, 2002, knowing of the information which had emerged in the Jenna case, Dr. Young wrote a letter of support for Dr. Smith to the College.

That letter is carefully crafted (by Dr. Smith’s counsel!), and does not actually defend the correctness of Dr. Smith’s findings in the three cases under review by the College Complaints Committee.

However, it signals in unambiguous terms that the Chief Coroner of Ontario was supporting his pathologist.

According to the letter:

0: Dr. Smith was “qualified” to undertake the work requested in each case;

0: At no time did Dr. Smith act in bad faith or with the intent of obstructing or hindering the coroner’s investigation in each case;

0: For Nicholas and Amber the conclusions he reached fell within the “range of reasonable expectations”;

0: With respect to Amber, in which Dr. Young was directly involved, he was “completely satisfied” that Dr. Smith’s conclusions met the standard expected;

0: Dr. Young had investigated Mr. Gagnon’s allegations and had not found any professional misconduct, and Dr. Smith’s opinion “fell within a range of acceptable opinions”;

0: Dr. Young was not willing to comment on Dr. Smith’s involvement in Jenna, because of the ongoing criminal investigation.

Dr. Young was unable to explain why he wrote this letter, given the circumstances at the time.

He acknowledged with the benefit of hindsight that the Chief Coroner's Office should have stopped Dr. Smith from doing anything after it found out about his conduct in regard to the hair.

Dr. Young’s failure to act may have had collateral consequences.

As outlined earlier, a few months later Dr. Smith was interviewed by the chair of the panel of assessors appointed by the Complaints Committee.

He gave arguably misleading information about his ongoing work in connection with the Ontario Pediatric Forensic Pathology Unit, which he still at least theoretically headed.

Arguably, had Dr. Smith’s position been taken away in April 2002 the College would have investigated those cases further.

As late as November, 2002 Dr. Young was still supporting Dr. Smith; he wrote a letter on his behalf to the Northumberland Ontario Provincial Police after the traffic stop incident.

When Dr. McLellan became acting chief coroner in July 2002 he did not agree that Dr. Smith should continue as Director of the Ontario Pediatric Forensic Pathology Unit;

Dr. Young refused to take the position away from him, but on Dr. McLellan’s insistence, agreed to assume responsibility for all matters relating to Dr. Smith.

It was only in October 2003, in the context of ongoing concerns about cases which were continuing to receive media attention, and in the context of the decision of Justice Trafford in the Athena case, that Chief Coroner's Office demonstrated any real concerns about Dr. Smith continuing to conduct coroner’s autopsies(although Dr. McLellan had continued to express his concern since his appointment as acting Chief Coroner).

At that time, Dr. Smith was forced to resign from his committee work.

Finally, in April 2004 he was forced to resign as head of the Ontario Pediatric Forensic Pathology Unit after Dr. McLellan became Chief Coroner."

Harold Levy...hlevy15@gmail.com;

Part Twelve; Closing Submission: Affected Families; More Details Of What Top Officials of Chief Coroner's Office Allegedly knew;

This Blog is currently focusing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on a section in which the group lays out an array of specific problems with Dr. Smith's work which it alleges had come to the attention of top officials of the Ontario Chief Coroner's Office - and did not result in measures to protect the public.

"By the late 1990’s, the Chief Coroner's Office was aware of serious and continuing problems with turnaround times for Dr. Smith’s reports," the section begins;

"This was one of a number of issues that led Dr. Chiasson to recommend a revisioning of the Ontario Pediatric Forensic Pathology Unit," it continues;

"The problem was so severe that in several instances the Crown had been forced to issue a summons to Dr. Smith.

Regional Coroners were concerned enough about the problem that one of them had encouraged coroners not to use Dr. Smith.

Drs. Young and Cairns also knew of a continued problem with access to Dr. Smith experienced by different players in the justice system.

Dr. Cairns was aware of concerns that Dr. Smith changed his opinions during the course of a case.

Dr. Cairns was aware that in the Simmons case Dr. Smith had made a very serious mistake with respect to DNA evidence which had led to criminal charges not being laid in a timely fashion.

In addition, by the late 1990’s, the Chief Coroner's Office had findings in three specific cases which should have raised concerns about Dr. Smith’s competence, objectivity and professionalism:

In the Amber case, both Drs. Cairns and Young were aware of the acquittal.

In May, 1998 in the Nicholas case Dr. Cairns was sent an excerpt of Justice Dunn’s decision by counsel for the Sudbury CAS.

Whether or not Dr. Young read the decision at the time it was released, he certainly had the decision drawn to his attention at the meeting with Ms. Mann on February 14, and in Mr. Gagnon’s complaint to the Coroner’s Council in February, 1999.

Dr. Young was aware of DM’s complaint to the College Of Physicians And Surgeons Of Ontario about Dr. Smith;
In the Nicholas case, in March, 1999 the Chief Coroner's Office received the opinion of Dr. Mary Case which, concluded “I would not attribute this death to a head injury as there are no findings on which to make such a conclusion”.

Dr. Case was shown on the Fifth Estate program in November, 1999 at a pathology conference giving a presentation about the case, and calling Dr. Smith’s conclusions “in the area of irresponsible testimony”.

Dr. Cairns saw the program. Dr. Young received Mr. Gagnon’s detailed complaint about Dr. Smith in February, 1999;

In the Sharon case, Drs. Cairns and Young knew in February 1999 that international forensic scientists were concerned that the case might lead to a miscarriage of justice.

They knew at around this time that Dr. Smith had lost a cast of Sharon’s skull which had been made an exhibit at the preliminary inquiry.

In July, 1999, following the exhumation, they were aware that many of the wounds were dog bites, contrary to Dr. Smith’s initial opinion.

In 1999, the Chief Coroner's Office should have been aware of the outcome of criminal charges in the Jenna case.

Dr. Smith’s original opinion regarding the timing of injuries had been discredited, first by defence expert Dr. Sigmund Ein on April 23rd, 1999 and then by Dr. Bonita Porter, Deputy Chief Coroner and acting Chair of the Pediatric Death Review Committee, on May 26th, 1999.

The charges against Brenda Waudby were subsequently withdrawn on June 15th;"

Harold Levy...hlevy15@gmail.com;

Part Ten: Closing Submissions; Affected Families: Crossing The Line: From Coroner's Investigator To Police Agent;

The current focus is on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on the section in which the Group alleges that Dr. Smith - and others involved in death investigations for the Chief Coroner's Office - crossed the line from impartial death investigator to active participant in a police investigation;

"With the assumption of an advocacy role, there is a danger that medical professionals will “cross the line” into participating in the police investigation," this section begins;

"Dr. Smith admitted that in the early years he considered himself to be supporting the Crown and that in later years he understood the concept of impartiality but was poor in the execution," it continues;

"But it was not just Dr. Smith who fell into this line of thinking.

In the Tyrell case, the Court considered the admissibility of statements made by Tyrell’s caregiver to Dr. Mian and Elaine McLaughlin of the SCAN team.

The trial judge clearly found that they were “persons in authority” and was scathing in his remarks on this point:

"I would reject the statement because of the dramatically unsatisfactory nature of the SCAN (Suspected Child Abuse and Neglect) team evidence, which makes it impossible to know with any degree of certainty what [Tyrell’s caregiver] was told about the purpose of the interview and equally impossible to know what was in fact the real purpose of the interview and also the dramatic and startling contradiction between Dr. Mian and Ms. MacLachlan about the so-called protocol averred by Ms. MacLachlan and also because of the apparent lack of any protocol of system or set of standard procedures or organizational guidelines to ensure that the role of the SCAN team is clear and fairly brought home, not only to interviewees, but also that the very members of the SCAN team itself have some consistent understanding of what its true purpose and function is."

Dr. Dirk Huyer candidly advised the Commission that when reflecting on this possibility of assuming an inappropriate investigatory role in a case, he recognized that “theoretically people would be more willing to tell me that because I’m a physician and I’m in a helping environment.”

In the Tiffani case, police investigators arranged a joint interview of the parents with the investigating coroner present, meeting to “discuss the method of the interview” in advance.

According to the notes of the investigating officer, the discussion was as follows:
Coroner will ask medical background of mother in form used for medical history…will mention interview is taped and get consent….

If at any time interview shows criminality, Coroner will stop… Officer will [issue?] caution and continue interview. Same procedure to follow with husband.

Reference to Dr. Smith’s stature was used as an investigative tool by the police during the interrogation of Nicholas’ mother:

you have to understand that there people, they’re professional who, the pathologist, the head pathologist for Ontario – I mean, this is a man who’s not making idle speculation. This is a man who knows and who has empowered that knowledge to us that his death was not natural. That’s the reality of it.

The evidence suggests that the Ontario Chief Coroner's Office saw itself as “a resource to the system”, meaning the prosecution side of the criminal justice system.

Nowhere is this more evident that in the Barrie case referred to in the course of this Inquiry.

The Affidavit of Staff Sergeant Mark Holden, sworn January 28, 2008, raises significant concerns as set out below:

There were two case conferences with police prior to Dr. Smith meeting with the mother;

"There was communication between Inspector McNeill and Dr. Smith about the fact the house was wire-tapped;
There was a meeting between Inspector McNeill and Dr. Smith immediately before the meeting; and
Dr. Smith immediately reported back to Inspector McNeill, describing the mother’s demeanour as follows: “it was like talking to her about a load of gravel”.

A February 7, 2008 affidavit sworn by Dr. Cairns confirms that he was aware that Dr. Smith’s meeting with the mother was going to be wiretapped and that he didn’t see a problem with it at the time although he does now)."

Harold Levy...hlevy15@gmail.com;

Part Eight: Closing Submissions: Affected Families Group; Default Diagnosis; Assuming Sexual Abuse;

AS DR. MILROY STATED IN HIS EVIDENCE, SOME OF THE PEOPLE WHO DO CLINICAL CHILD PROTECTION WORK “SEE THEMSELVES AS ADVOCATES FOR THE CHILD”.

USING THE TERMINOLOGY OFFERED TO THE INQUIRY BY DR. POLLANEN, THE ADVOCACY ROLE IN THIS CONTEXT APPEARS TO HAVE RESULTED IN A “DEFAULT DIAGNOSIS” OF CHILD ABUSE.

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FROM CLOSING SUBMISSIONS: AFFECTED FAMILIES GROUP;
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This Blog is currently looking at the closing written submissions filed by various parties appearing at the Goudge Inquiry which is expected to report on September 30, 2008.

The current focus is on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on the Group's allegation that Dr. Smith, backed by the Chief Coroner's office, assumed sexual abuse by default in several of the cases being reviewed by the Inquiry;

"Dr. Cairns came to the job of Deputy Chief Coroner in 1991 after presiding over a controversial inquest regarding suspected child abuse," the section begins;

"Addressing this issue became a central feature in his professional work with the Chief Coroner's Office over the next decade," it continues.

"From the perspective of the Chief Coroner's Office, of particular concern to Dr. Cairns were those cases where the Children’s Aid Society had been involved in monitoring families prior to a child’s death:

"…the focus of the joint mortality task force was, what was happening to children when they were being monitored by a Children’s Aid Society. So the focus when we brought all these extra cases was we felt we needed to have a much closer scrutiny of the role that Children’s Aid Societies were playing in deaths of these children. Between 1996 and 1998 we did six systemic inquests all addressing children who had died while they were being supervised by a Children’s Aid Society.

In this work, Dr. Cairns found a ready and willing partner in Dr. Smith, who already worked closely with the SCAN team at the Hospital for Sick Children.

Dr. Cairns became a friend and supporter of Dr. Smith and defended him in the media;

As Dr. Milroy stated in his evidence, some of the people who do clinical child protection work “see themselves as advocates for the child”.

Using the terminology offered to the Inquiry by Dr. Pollanen, the advocacy role in this context appears to have resulted in a “default diagnosis” of child abuse.

Indeed, in the Kassandra case, Dr. Marcella Mian stated to the police that “all she deals with is child abuse, so naturally she would assume abuse.”

The default diagnosis in many of the cases that are before this Inquiry came to be expressed by Dr. Smith in the following terms:

Valin: “in the absence of a reasonable explanation by history, they indicate non-accidental trauma including sexual abuse”

Nicholas: “in the absence of a credible explanation, in my opinion, the post-mortem findings are regarded as resulting from non-accidental injury”

Tiffani: “…of note are the presence of bilateral healing rib fractures which, in the absence of a reasonable explanation, are considered to be non-accidental in nature.”

Amber: “…look for evidence which might prove the babysitter to be innocent”

Dr. Cairns did not appear to understand the dangers of such logic.

His explanation for the opinion in Nicholas was as follows: “Commissioner I think he was making that reasoning in that there was no satisfactory explanation given as to how it may be accidental”.

Yet that form of reasoning has no basis in science.

As Dr. Pollanen explained:

We don’t say ‘in the absence of evidence to the contrary this is cancer.’

What we say is, ‘the findings of the histology are not sufficient to come to a diagnosis; re-biopsy."

Do more investigations to find out."

Harold Levy...hlevy15@gmail.com;

Part Five: Closing Submissions: Affected Families; Anatomy of Complaints That Fell On Deaf Ears;

IN CONCLUSION, DURING THE PERIOD UNDER REVIEW, THE VERY PERSON WHO HAD RESPONSIBILITY FOR OVERSIGHT WITH RESPECT TO THE ACTIVITIES OF THE ONTARIO PEDIATRIC FORENSIC PATHOLOGY UNIT, AND DR. SMITH IN PARTICULAR, WAS THE PERSON RESPONSIBLE FOR DEALING WITH COMPLAINTS FROM THE PUBLIC ABOUT BOTH CORONERS AND PATHOLOGISTS.

DR. YOUNG LACKED THE TOOLS BOTH TO EXERCISE EFFECTIVE OVERSIGHT AND TO RESPOND APPROPRIATELY TO COMPLAINTS.

FROM CLOSING SUBMISSIONS: THE AFFECTED FAMILIES GROUP;
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Some extremely interesting written closing submissions have been filed with the Goudge Inquiry by lawyers representing "The Affected Families Group."

This is a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001; The lawyers are Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick.

The group argues that complaints made by parents or caregivers who felt they had been unfairly treated during the death investigation process fell on deaf ears because there was no independent complaints process;

"The Coroners Act itself does not contain any process by which complaints about the conduct of a coroner or pathologist acting under the Coroners Act are to be dealt with," this portion of the Group's submissions begins.

"Following the abolishment of the Coroner’s Council in 1998, any complaint about the conduct of a coroner or pathologist appears to have been dealt with by Dr. Young, in his capacity as Chief Coroner of Ontario," it continues.

"According to (Former Chief Coroner) Dr. (James) Young’s letter to the College of Physicians and Surgeons of Ontario dated April 10, 2002:

"I am responsible for bringing the policies and procedures to the attention of all those engaged in coroners’ work and, when there has been a breach of these policies and procedures, I communicate directly to the coroners and their agents."

There does not appear to have been any formal complaints process ever set up during Dr. Young’s tenure as Chief Coroner.

Instead, he appears to have assumed that he had an overriding supervisory authority under the Act to personally review complaints, investigate and respond.

The inadequacy of this process is amply demonstrated by the Nicholas case.

Mr. Gagnon initially complained to the Coroner’s Council on February 17, 1999 regarding Dr. Smith.

The complaint outlined a number of areas of concern regarding Dr. Smith’s conduct in extensive detail, including very specific criticisms about his pathologic findings;

Dr. Young’s reply dated May 6, 1999 acknowledged that many of the issues raised by Mr. Gagnon were “essential to the practice of forensic pathology.”

In addition, it provided Mr. Gagnon with a copy of the Forensic Pathology Pitfalls Memorandum which had recently been prepared by The Ontario Chief Coroner's Office;

However, on the critical allegations made by Mr. Gagnon regarding Dr. Smith (relating to competence, lack of expertise and bias), Dr. Young’s response was as follows: Experts must be allowed their individual opinions as this is what makes them experts. Their opinion is based on training and experiences. The question, is therefore, whether or not their opinion falls within a reasonable range given the facts of the case.

On March 6, 2000, Mr. Gagnon filed a complaint with the Solicitor General regarding Dr. Cairns’ conduct in the investigation into Nicholas’ death.

This complaint is particularly important in that it raised a number of questions about systemic issues.

In particular, Mr. Gagnon alleged that Dr. Cairns’ “quest to eradicate child abuse in Ontario had clouded his judgment and impaired the objectivity and credibility of the Ontario Chief Coroner's Office;"

The Solicitor General’s reply to Mr. Gagnon’s letter dated April 13, 2000 was prepared by Dr. Young.

That letter also repeated that “the opinion Dr. Smith came to was within a reasonable range given the facts of the case”.

The Ombudsman of Ontario, in its response to Mr. Gagnon dated September 24, 2001, recommended that the Solicitor General considered establishing an independent complaint handing body with special expertise to review complaints and ensure the accountability of the coroner system.

No such mechanism has ever been established.

In conclusion, during the period under review, the very person who had responsibility for oversight with respect to the activities of the Ontario Pediatric Forensic Pathology Unit, and Dr. Smith in particular, was the person responsible for dealing with complaints from the public about both coroners and pathologists.

Dr. Young lacked the tools both to exercise effective oversight and to respond appropriately to complaints.

In addition, as will be dealt with below, Dr. Young and the Ontario Chief Coroner's Office became closely identified with Dr. Smith and his work and had a built-in disincentive to provide objective and effective responses to complaints from the public.

Harold Levy...hlevy15@gmail.com;

Part One: Closing Submissions; Top Leadership of Chief Coroner's Office Cited For Failing To Prevent Harm To Children and Miscarriages Of Justice;

"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..."EACH WAS COMMITTED TO EITHER A PERSONAL INTEREST OR IDEOLOGY;"

LAWYER SUZAN FRASER; CLOSING SUBMISSIONS TO GOUDGE INQUIRY; ON BEHALF OF "DEFENCE FOR CHILDREN INTERNATIONAL CANADA: (DCI-CANADA);

Among the thousands of pages of submissions filed at the Goudge Inquiry, one brief deserves particular attention;

It is filed by Toronto lawyer Suzan Fraser who represents an organization called "Defence for Children International Canada (DCI-Canada);

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.

Next Posting:

Part Two: Closing Submissions; End secret surveillance of parents while being informed of the circumstances of their child's death; Important recommendation from Defence For Children International Canada;

Harold Levy...hlevy15@gmail.com;

Human Failings And Dr. Smith: Good Questions Asked By The Sudbury Star About The Gagnon Case;

Several of this Blog's readers have drawn my attention to a probing editorial that appears in todays's Sudbury Star; (My thanks to them);

It runs under the heading: "Human Failings and Dr. Smith";

"Sudbury Star reporter Denis St. Pierre's exhaustive narrative Friday and Saturday of the nightmare that Lianne Gagnon and her family endured over the death of her 11-month-old son unveiled one astonishing development after another," the editorial begins.

"Just reading about what Gagnon and her family went through was draining. Imagine suffering as they did," it continues.

"There are lessons buried in all this - of oversight, and of human failing.

Dr. Charles Smith's story is now well known. Once an esteemed pediatric child pathologist who vigorously - even belligerently - pursued cases in a manner that was beyond his mandate, he has been thoroughly impugned as an incompetent, under-trained doctor who ignored facts, bullied investigators and lied under oath.

He left a trail of persecuted innocents in his wake, sending some people to jail - a Sault Ste Marie man for 12 years - and subjecting Sudbury's Gagnon family to a dreadful experience.

A panel of outside experts concluded Smith made errors in 20 of 45 criminal investigations into suspicious child deaths from 1991 to 2001.

Gagnon's 11-month-old son Nicholas died in December 1995. She has always maintained he hit his head on a table and stopped breathing shortly thereafter.

The case was reviewed by a pathologist and a coroner and was investigated by the local police, but no charges were laid.

Eighteen months later, in came Smith.

He concluded - incorrectly - that the child had multiple injuries and that Gagnon likely killed her son.

Gagnon, then a 21-year-old Laurentian University student, was subjected to a grueling interrogation by local police, her conversations with intimate friends were eavesdropped twice and her son's body was disinterred.

Despite all this, police concluded after a second six-month investigation that there was no case for criminal charges.

Yet Smith went ahead and contacted the Children's Aid Society, telling officials he was "99-per cent sure" Gagnon killed her son.

The CAS then decided to take custody of Gagnon's second child.

No one can imagine the anguish the Gagnon family went through, dealing with the death of a child and the merciless legal pursuit that followed.

Smith now says he was simply incompetent, tearfully offering apologies to his victims during an inquiry last week.

The police say they were led down the wrong path by a respected pathologist.

But the only real innocent one here is Gagnon.

The lessons involved include the medical community, police and child-welfare authorities. How did Smith, without training in pediatric forensic pathology, achieve virtual star status in that field?

How were his mistakes missed for a decade?

The medical community must become better accustomed to scrutinizing their own.

Even the Ontario College of Physicians and Surgeons didn't stop Smith's carnage.

Why were the Sudbury police so quick to ignore the conclusions of the two initial doctors and their own investigation on the presumption that Smith was so much better?

Do they grant anyone else infallibility status? Are the police subject to tunnel vision once they've made up their minds, the characteristic that is known to lead to wrongful convictions?

In Gagnon's case, though no charges were laid, lead investigator Insp. Bob Keetch, who was then a sergeant, testified the police chief at the time, Alex McCauley, was adamant that Gagnon was guilty even after the second investigation resulted in no charges. (McCauley has denied this.)"

These are all good questions;

Kudos to the Sudbury Star - and reporter Denis St. Pierre - for asking them.

See this Blog's series: Interrogation of an innocent mother: Parts one to fourteen; January, 2008.

Harold Levy...hlevy15@gmail.com;

The Doctor And The Judge: Part Three: Fact, Fantasy or Outright Lie?

In recent postings I examined the question whether Dr. Smith's oft-repeated account of two detailed conversations with Judge Patrick Dunn about the Amber case - one on an airplane and one at a judge's conference years later - was fact or fantasy.

To this Bloggist it now appears to be an outright lie.

(See The Doctor and the Judge: Part One and Part Two);

During these alleged conversations (one supposedly made during the course of the trial) Dunn allegedly praised Dr. Smith his colleagues on the Suspected Child Abuse and Neglect Team at the Hospital For Sick Children in Toronto for their scientific evidence at the babysitter's trial and declared that in his view, the babysitter, whom he had acquitted, was actually "guilty as sin";

(Dunn had rejected their evidence in the judgment he delivered when acquitting the babysitter of manslaughter);

But yesterday Smith told Commission Counsel Linda Rothstein that it was not necessary to bring Judge Dunn to testify because he did not challenge Dunn's a sworn affidavit denying that these conversations had occurred.

Here is the exchange:

"MS. LINDA ROTHSTEIN: And you were asked by Commission Counsel whether it was necessary to call Justice Dunn as a witness to speak to any of the facts
set out in his affidavit. You understood that, did you not --

DR. CHARLES SMITH: I understood --

MS. LINDA ROTHSTEIN: -- Dr. Smith?

DR. CHARLES SMITH: -- that was a possibility, yes.

MS. LINDA ROTHSTEIN: And your counsel told the Inquiry that you did not intend to dispute any of the facts set out in Justice Dunn's affidavit and therefore, it was not necessary for the Commission to call Justice Dunn to give evidence and be cross-examined. True?

DR. CHARLES SMITH: That's correct."

The implications of this implied admission are enormous.

First, it means that he unabashedly slandered Judge Dunn - by stating Dunn had discussed the case with him during the trial - to the numerous people he recounted the story to over the years colleagues at the Hospital For Sick Children and senior officials of the Ontario Chief Coroner's Office.

Secondly, it means he mislead the College of Physicians and Surgeons of Ontario - to whom he gave a written account of the story in response to a complaint launched by the babysitter's parents.

To put it bluntly, he lied to his governing body.

(This has serious implications because Dr. Smith is still a member of the College - and subject to its jurisdiction - and because he pleaded guilty in 2005 to misleading the Saskatchewan College of Physicians and Surgeons on his application for temporary membership).

Here is a relevant portion of yesterday's testimony:

"Ms. Rothstein: In the middle of the first paragraph, you say: "In spite of several days of vigorous cross-examination by the defence counsel for SM, Mr. Renault, my opinion did not waiver." You then say:"Furthermore, on two (2) occasions during my week of testimony, the judge, Patrick Dunn, discussed my evidence "Two (2) occasions".Those words were not true, were they, Dr. Smith?

DR. CHARLES SMITH: No. I -- I erred -- I erred in that.

MS. LINDA ROTHSTEIN: And you knew they were not true when you wrote them, sir.

(BRIEF PAUSE)

DR. CHARLES SMITH: I'm not sure just -- just what my thinking was then. I don't recall. But they are wrong, and -- and I'm very sorry for that.

MS. LINDA ROTHSTEIN: Discussed my evidence with me at length." Those words are completely untrue, are they not?

DR. CHARLES SMITH: That's wrong. That's -- that's what I believed, but that is -- it is not true, and I acknowledge that.

MS. LINDA ROTHSTEIN: Doctor, you knew that wasn't true when you wrote that.

DR. CHARLES SMITH: No. No. When I got off the aircraft, if you had asked me about my flight, or would have -- what I would have told you because that was
my -- that was my understanding or my reaction.


MS. LINDA ROTHSTEIN: He repeatedly indicated to me that he believed SM to be guilty."

DR. CHARLES SMITH: That's -- I believe I heard what I wanted to hear on that -- he -- based on his complimentary statements about -- about the witnesses. And I now realize that that was, perhaps, better described as pleasantries in his conversation, so. Though -- though that was my interpretation, and I believe I came to believe my interpretation, I recognize that that is wrong, and I -- nd I'm terribly, terribly embarrassed by it."

Thirdly, and perhaps most serious, Smith repeated this admitted lie under oath in court and has therefore exposed himself to a prosecution for perjury.

He repeated the lie under at a preliminary hearing in 1994 when being questioned by the defence lawyer as to his scathing criticism of the pathologist who conducted the autopsy;

Here is the relevant evidence from yesterday's session of the Inquiry:

"MS. LINDA ROTHSTEIN: (Reading from transcript of preliminary hearing):
Q: But people have said that about
you. They've alleged you've done
shoddy work, too.
A: That's absolutely true.
Q: Judges have said that about you.
You've done shoddy work.
A: One (1) judge. I'm told by you,
one (1) judge wrote that in his


submission. I don't know. I don't
know what he wrote. That's Judge Dunn,
who prior to the -- hearing the defence
experts, in fact, told me on more than
one (1) occasion -- private
conversations -- how hasty he was with
the work I had done and others had
done, at the hospital."

(End of preliminary hearing testimony - back to yesterday's evidence):

Dr. Smith, you did know what Justice Dunn had said about you because you had read his reasons for a decision, had you not?

DR. CHARLES SMITH: Yes. By that time I would have, yes. Yes.

MS. LINDA ROTHSTEIN: You also knew perfectly well that Justice Dunn had never said on more than one (1) private occasion how hasty he was with the work that you or others had done at the hospital.

DR. CHARLES SMITH: That -- that's correct. I don't -- I don't remember this remark, or this statement about --

MS. LINDA ROTHSTEIN: Your testimony was untrue, sir.

DR. CHARLES SMITH: It was wrong.

MS. LINDA ROTHSTEIN: It was untrue, sir.

DR. CHARLES SMITH: Yes. It's a mistake, and I was wrong. Yes.

MS. LINDA ROTHSTEIN: You were under oath, Dr. Smith.

DR. CHARLES SMITH: And -- and I understand that, and -- and I made a mistake. I'm not sure why I made that mistake, but I made a mistake, and
it was wrong."

Why did Dr. Smith make up this elaborate lie?

Commission Counsel Rothstein asked Smith if he had persuaded himself that Dunn had made the comments because he felt the Dunn's decision had the power to unfairly expose you to criticism.

Rothstein also wondered if, as the years went on, he became concerned that the case would cast a shadow over his work;

But Smith appeared reluctant to articulate a motive for perjury out of his own lips, as he repeatedly conceded nothing more than being, "embarrassed".

This humble Bloggist is more interested in what the lies say about Dr. Smith than in whether he can be thrown out of the medical profession or prosecuted for perjury.

There's lots of time for that. (And it is not the purpose of the public inquiry to assign blame);

At the outset, he (Smith) did not hesitate to hesitate to slander a good judge who was in no position to defend himself.

Good, honourable people don't do that.

Especially good Christians who are supposed to cherish the truth.

He did not hesitate to mislead the governing body of his own profession - as he had done in Saskatchewan.

There is pattern here.

Doctors are supposed to be open and direct with the College because the College has been given the awesome responsibility of regulating the medical profession for the protection of the public.

If he is willing to mislead his own profession, why will hesitate to mislead the courts, the police or any other institution of government?

His defence - that this was not a lie - it was merely what he wanted to hear - is the ultimate evasion of personal responsibility.

If indeed, it was all a fantasy - something Dr. Smith wove together in his mind because he wanted it to be that way - we are then faced with serious concerns about Dr. Smith's mental health and sense of reality.

Moreover, if he will lie under oath in a criminal case where someone is charged with murdering a child, why wouldn't he lie under oath in cases where parents or caregivers are charged with murdering children in order to help the Crown win the case?

After all, he testified that he tended to see himself as a member of the prosecution team who was committed to helping the Crown win.

To think that this man was once the revered Dr. Charles Smith who for many years was worshipped throughout the world of forensic world - and his word was treated like gold in the courts.

Dr. Charles Randal Smith.

A very ugly man.

A note to Janet: Thank you for pointing out that I had referred to the babysitter as Amber - which, of course, is the name of the deceased child. It's not a defence, but occasionally I find it difficult to keep identities straight when publication bans apply to the story - as is the case here. I appreciate your prompt response. Responses like this help insure the accuracy of this Blog. Thanks again, Harold;

Harold Levy...hlevy15@gmail.com;