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;
-------------------------------------------------------------------------------
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;
Showing posts with label OCCO. Show all posts
Showing posts with label OCCO. Show all posts
Tuesday, April 22, 2008
Sunday, April 13, 2008
Part Eighteen: Closing Submissions; Affected Families Group; Why Did The Chief Coroner's Office Fail To Hold Dr. Charles Smith Accountable?
"CLEARLY, BOTH DRS. YOUNG AND CAIRNS WERE MORE FOCUSSED ON PUBLIC PERCEPTION AND ON THE NEED TO PROTECT THE REPUTATION OF THE OFFICE THAN ON THE UNDERLYING ISSUES INVOLVING DR. SMITH AND THE DEVASTATING CONSEQUENCES FOR THE INDIVIDUALS AND FAMILIES INVOLVED."
CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP;
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During the period from the early 1990’s through to 2004 there can be no little doubt that Drs. Young and Cairns, and Dr. Young in particular, sheltered and protected Dr. Smith.
Why did this take place?
The key barriers to effective oversight and accountability by the Chief Coroner's Office appear to have been:
0: Neither Dr. Young or Dr. Cairns were forensic pathologists, and Dr. Chiasson did not have the authority or experience to supervise Dr. Smith. As a result, no one was in a position to effectively evaluate his work;
0: There were no clear lines of authority or reporting;
0: Accountability for the work of the Ontario Pediatric Forensic Pathology Unit was nowhere defined;
0: The Chief Coroner's Office was so invested in Dr. Smith’s work that it was incapable of objective and critical oversight;
0: Dr. Cairns in particular was enamoured of Dr. Smith’s icon status;
0: The consequences of critical oversight would have had a highly negative impact for the Chief Coroner's Office's reputation and for Dr. Young in particular;
0: At various times, Dr. Smith was treated as a friend and colleague who was under attack.
Of these, (d) through (g) are most troubling.
Failing to create an effective organizational structure to allow for oversight and supervision by those who have the skills to do it is one thing; fostering an environment where such oversight cannot meaningfully occur is another.
It is incomprehensible that the 2001 review never contemplated a retrospective examination of past cases for purposes of determining whether there were errors which may have led to miscarriages of justice.
Clearly, both Drs. Young and Cairns were more focussed on public perception and on the need to protect the reputation of the office than on the underlying issues involving Dr. Smith and the devastating consequences for the individuals and families involved...
Harold Levy...hlevy15@gmail.com;
CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP;
-----------------------------------------------------------------------------------
During the period from the early 1990’s through to 2004 there can be no little doubt that Drs. Young and Cairns, and Dr. Young in particular, sheltered and protected Dr. Smith.
Why did this take place?
The key barriers to effective oversight and accountability by the Chief Coroner's Office appear to have been:
0: Neither Dr. Young or Dr. Cairns were forensic pathologists, and Dr. Chiasson did not have the authority or experience to supervise Dr. Smith. As a result, no one was in a position to effectively evaluate his work;
0: There were no clear lines of authority or reporting;
0: Accountability for the work of the Ontario Pediatric Forensic Pathology Unit was nowhere defined;
0: The Chief Coroner's Office was so invested in Dr. Smith’s work that it was incapable of objective and critical oversight;
0: Dr. Cairns in particular was enamoured of Dr. Smith’s icon status;
0: The consequences of critical oversight would have had a highly negative impact for the Chief Coroner's Office's reputation and for Dr. Young in particular;
0: At various times, Dr. Smith was treated as a friend and colleague who was under attack.
Of these, (d) through (g) are most troubling.
Failing to create an effective organizational structure to allow for oversight and supervision by those who have the skills to do it is one thing; fostering an environment where such oversight cannot meaningfully occur is another.
It is incomprehensible that the 2001 review never contemplated a retrospective examination of past cases for purposes of determining whether there were errors which may have led to miscarriages of justice.
Clearly, both Drs. Young and Cairns were more focussed on public perception and on the need to protect the reputation of the office than on the underlying issues involving Dr. Smith and the devastating consequences for the individuals and families involved...
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;
-----------------------------------------------------------------------------------
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;
CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP;
-----------------------------------------------------------------------------------
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;
Saturday, April 12, 2008
Part Fifteen; Closing Submissions; Affected Families Group: Three Separate Probes In 2001; Whitewash Alleged;
ASIDE FROM THE IDENTIFICATION OF CERTAIN CASES WHERE A SECOND INDEPENDENT OPINION WAS NEEDED FOR USE BY THE CROWN, THE INTERNAL REVIEW APPEARS TO HAVE TURNED UP NOTHING WHICH CAUSED THE CHIEF CORONER'S OFFICE TO QUESTION DR. SMITH’S COMPETENCE.
IT WAS, IN EFFECT, A WHITEWASH.
-----------------------------------------------------------------------------------
CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP);
-----------------------------------------------------------------------------------
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 argues that three separate reviews of Dr. Smith's work - considered or implemented in 2001 - turned up nothing which caused the Chief Coroner's Office to question his competence;
"There appear to have been a total of three separate “reviews” of Dr. Smith’s work considered or implemented by the Chief Coroner's Office in 2001," this section began.
"First, there was the external review initially contemplated by Dr. Young and then quietly cancelled," the section continued;
"Dr. Young intended this to be an internal matter.
A public press release announcing a review could fatally damage Dr. Smith’s reputation “and I would never get him back to work”.
The purpose of this review is unclear.
Dr. Smith’s letter of January 25, 2001 sought “an external review” of his post-mortem examinations, presumably to demonstrate that he could return to work.
Dr. Young described this as being “whether or not he would come back and do cases.”
The scope of this review was never determined, according to both Drs. Young and Cairns.
Some of the evidence suggests that it would have looked at specific completed cases for purposes of considering whether he had adequate forensic skills:
0: The handwritten written notes of January 26, 2001 meeting referring to an external review (U.S./England/Australia) and under the heading “Purpose?” the words “is he a good forensic pathologist;”
0: An email from an Australian pathologist regarding possible starting points for a review;
0: A media report and a ministry house book note with respect to Sharon’s case, suggesting that this case would be the subject of an independent external review, and,
0:Dr. Young’s March 30, 2001 letter to James Lockyer describing a “review” with regard to “two specific cases that Dr. Smith was involved in, both of which were abandoned by the Crown”, and which commented on standards for reviewing “experts and their opinions.”
This contemplated external review was quietly cancelled because of the ongoing lawsuits (the Reynolds civil litigation and Dr. Smith’s litigation with Maclean’s Magazine) and the College Of Physicians And Surgeons of Ontario complaints.
According to Dr. Young, once these matters were underway he decided he was not prepared to reinstate Dr. Smith until they were resolved.
He suggested to the Inquiry that he owed Dr. Smith an apology for not informing him of the cancellation of the review.
Ironically, having taken the position for many years that the College did not have jurisdiction over coroners or pathologists, Dr. Young was now prepared to wait for the outcome of College investigations into the three complaints.
The way in which the review was cancelled corroborates that Dr. Young’s primary concern throughout was the Chief Coroner's Office's reputation.
With Dr. Smith off the roster and other processes underway where he would have an opportunity to defend himself, the heat was now off the Chief Coroner's Office and there was no need to take any decision regarding Dr. Smith’s return to work.
The second review was the so-called internal review conducted by the Chief Coroner's Office of approximately 17 ongoing criminal cases where Dr. Smith was a witness.
The cases were identified by Dr. Cairns, with the assistance of the Metropolitan Toronto Police Force.
Although various witnesses described these as cases ongoing before the courts, the list included cases where the criminal prosecution had been concluded, such as Amber and Sharon.
According to Dr. Young, the purpose of this review was to determine whether the cases were being handled correctly and whether there was a need by the Crown for a independent second opinion.
It was prospective, rather than retrospective.
This internal review was the subject of an extensive analysis by Justice Trafford in R v. Kporwodu and Veno.
Dr. Cairns has admitted to this Inquiry that Justice Trafford’s conclusions are accurate.
In addition, he acknowledges that the review was conducted primarily by him; that in cases where the file had previously been the subject of the quality assurance review by Dr. Chiasson, it was not reviewed again; and that the results eventually presented to the Court were misleading, and favourable to Dr. Smith.
One simple example from this review demonstrates how misleading it was.
The Jenna case is listed in the final chart as case 3055/1997.
The chart indicates that the case had been externally reviewed, that the external reviewer agreed with Dr. Smith, and that the case was “under investigation”.
In fact several external reviewers by that time, including Dr. Porter, had disagreed with Dr. Smith’s conclusions, and the charges against the original accused had been withdrawn as a result.
Similar observations can be made about the chart’s conclusions regarding Sharon (internal review agrees with Dr. Smith: yes/no, and external review: no) and Amber (internal review agrees with Dr. Smith: yes, and external review agrees with Dr. Smith: yes).
Justice McMahon thought that the Chief Coroner's Office's internal review dealt with past cases, and “surmised” that it involved Dr. Smith’s competence.
He was surprised to learn during this Inquiry that it was only a paper review, having assumed it would be far more in depth and that one concern would have been potential wrongful convictions.
Aside from the identification of certain cases where a second independent opinion was needed for use by the Crown, the internal review appears to have turned up nothing which caused the Chief Coroner's Office to question Dr. Smith’s competence.
It was, in effect, a whitewash.
A third review was conducted by Dr. Carpenter of Dr. Smith’s work in a limited number of non-criminally suspicious cases, for the sole purpose of determining whether Dr. Smith could resume work on such cases."
Harold Levy...hlevy15@gmail.com;
IT WAS, IN EFFECT, A WHITEWASH.
-----------------------------------------------------------------------------------
CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP);
-----------------------------------------------------------------------------------
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 argues that three separate reviews of Dr. Smith's work - considered or implemented in 2001 - turned up nothing which caused the Chief Coroner's Office to question his competence;
"There appear to have been a total of three separate “reviews” of Dr. Smith’s work considered or implemented by the Chief Coroner's Office in 2001," this section began.
"First, there was the external review initially contemplated by Dr. Young and then quietly cancelled," the section continued;
"Dr. Young intended this to be an internal matter.
A public press release announcing a review could fatally damage Dr. Smith’s reputation “and I would never get him back to work”.
The purpose of this review is unclear.
Dr. Smith’s letter of January 25, 2001 sought “an external review” of his post-mortem examinations, presumably to demonstrate that he could return to work.
Dr. Young described this as being “whether or not he would come back and do cases.”
The scope of this review was never determined, according to both Drs. Young and Cairns.
Some of the evidence suggests that it would have looked at specific completed cases for purposes of considering whether he had adequate forensic skills:
0: The handwritten written notes of January 26, 2001 meeting referring to an external review (U.S./England/Australia) and under the heading “Purpose?” the words “is he a good forensic pathologist;”
0: An email from an Australian pathologist regarding possible starting points for a review;
0: A media report and a ministry house book note with respect to Sharon’s case, suggesting that this case would be the subject of an independent external review, and,
0:Dr. Young’s March 30, 2001 letter to James Lockyer describing a “review” with regard to “two specific cases that Dr. Smith was involved in, both of which were abandoned by the Crown”, and which commented on standards for reviewing “experts and their opinions.”
This contemplated external review was quietly cancelled because of the ongoing lawsuits (the Reynolds civil litigation and Dr. Smith’s litigation with Maclean’s Magazine) and the College Of Physicians And Surgeons of Ontario complaints.
According to Dr. Young, once these matters were underway he decided he was not prepared to reinstate Dr. Smith until they were resolved.
He suggested to the Inquiry that he owed Dr. Smith an apology for not informing him of the cancellation of the review.
Ironically, having taken the position for many years that the College did not have jurisdiction over coroners or pathologists, Dr. Young was now prepared to wait for the outcome of College investigations into the three complaints.
The way in which the review was cancelled corroborates that Dr. Young’s primary concern throughout was the Chief Coroner's Office's reputation.
With Dr. Smith off the roster and other processes underway where he would have an opportunity to defend himself, the heat was now off the Chief Coroner's Office and there was no need to take any decision regarding Dr. Smith’s return to work.
The second review was the so-called internal review conducted by the Chief Coroner's Office of approximately 17 ongoing criminal cases where Dr. Smith was a witness.
The cases were identified by Dr. Cairns, with the assistance of the Metropolitan Toronto Police Force.
Although various witnesses described these as cases ongoing before the courts, the list included cases where the criminal prosecution had been concluded, such as Amber and Sharon.
According to Dr. Young, the purpose of this review was to determine whether the cases were being handled correctly and whether there was a need by the Crown for a independent second opinion.
It was prospective, rather than retrospective.
This internal review was the subject of an extensive analysis by Justice Trafford in R v. Kporwodu and Veno.
Dr. Cairns has admitted to this Inquiry that Justice Trafford’s conclusions are accurate.
In addition, he acknowledges that the review was conducted primarily by him; that in cases where the file had previously been the subject of the quality assurance review by Dr. Chiasson, it was not reviewed again; and that the results eventually presented to the Court were misleading, and favourable to Dr. Smith.
One simple example from this review demonstrates how misleading it was.
The Jenna case is listed in the final chart as case 3055/1997.
The chart indicates that the case had been externally reviewed, that the external reviewer agreed with Dr. Smith, and that the case was “under investigation”.
In fact several external reviewers by that time, including Dr. Porter, had disagreed with Dr. Smith’s conclusions, and the charges against the original accused had been withdrawn as a result.
Similar observations can be made about the chart’s conclusions regarding Sharon (internal review agrees with Dr. Smith: yes/no, and external review: no) and Amber (internal review agrees with Dr. Smith: yes, and external review agrees with Dr. Smith: yes).
Justice McMahon thought that the Chief Coroner's Office's internal review dealt with past cases, and “surmised” that it involved Dr. Smith’s competence.
He was surprised to learn during this Inquiry that it was only a paper review, having assumed it would be far more in depth and that one concern would have been potential wrongful convictions.
Aside from the identification of certain cases where a second independent opinion was needed for use by the Crown, the internal review appears to have turned up nothing which caused the Chief Coroner's Office to question Dr. Smith’s competence.
It was, in effect, a whitewash.
A third review was conducted by Dr. Carpenter of Dr. Smith’s work in a limited number of non-criminally suspicious cases, for the sole purpose of determining whether Dr. Smith could resume work on such cases."
Harold Levy...hlevy15@gmail.com;
Thursday, April 10, 2008
Part Fourteen; Closing Submissions; Affected Families; Decision To Remove Smith From Roster; To Protect The Public Or The Chief Coroner's Office?
"IN FACT, DR. YOUNG ACKNOWLEDGED THAT AT THIS TIME ONE OF HIS MAIN CONCERNS WAS WITH THE IMPACT THE CONTROVERSY COULD HAVE ON THE CHIEF CORONER'S OFFICE ITSELF.
HE APPEARS TO HAVE GIVEN NO THOUGHT TO THE IMPACT DR. SMITH’S PAST WORK MIGHT HAVE HAD ON THOSE CRIMINALLY ACCUSED AS A RESULT OF HIS OPINIONS."
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CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;
-----------------------------------------------------------------------------------
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 argues that the decision to no longer allow Dr. Smith to perform Coroner's autopsies in criminally suspicious cases was motivated by a desire to protect the reputation of the Chief Coroner's Office - rather than to protect the public;
"In late January, 2001 the Chief Coroner's Office became aware of media coverage relating to Dr. Smith arising out of the stay of charges in Tyrell’s case and the withdrawal of charges in Sharon’s case," the section begins;
"As a result, Dr. Young met with Dr. Smith and asked him to agree to stop performing autopsies in criminally suspicious cases," it continues;
"According to Dr. Young, the reason for this was out of a concern about Dr. Smith’s effectiveness, not his competence.
Dr. Smith had become an enormous lighting rod and would benefit from time away.
“Everything he did from that point forward would attract undue attention. And that was a problem both for the Office and for him”.
In fact, Dr. Young acknowledged that at this time one of his main concerns was with the impact the controversy could have on the Chief Coroner's Office itself.
He appears to have given no thought to the impact Dr. Smith’s past work might have had on those criminally accused as a result of his opinions.
At this time Dr. Cairns still had faith in Dr. Smith and had no concerns about his competence.
Dr. Young appears to have been developing such concerns, although he was at pains to assure the Inquiry that they had nothing to do with his decision to take Dr. Smith off the roster."
Harold Levy...hlevy15@gmail.com;
HE APPEARS TO HAVE GIVEN NO THOUGHT TO THE IMPACT DR. SMITH’S PAST WORK MIGHT HAVE HAD ON THOSE CRIMINALLY ACCUSED AS A RESULT OF HIS OPINIONS."
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CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;
-----------------------------------------------------------------------------------
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 argues that the decision to no longer allow Dr. Smith to perform Coroner's autopsies in criminally suspicious cases was motivated by a desire to protect the reputation of the Chief Coroner's Office - rather than to protect the public;
"In late January, 2001 the Chief Coroner's Office became aware of media coverage relating to Dr. Smith arising out of the stay of charges in Tyrell’s case and the withdrawal of charges in Sharon’s case," the section begins;
"As a result, Dr. Young met with Dr. Smith and asked him to agree to stop performing autopsies in criminally suspicious cases," it continues;
"According to Dr. Young, the reason for this was out of a concern about Dr. Smith’s effectiveness, not his competence.
Dr. Smith had become an enormous lighting rod and would benefit from time away.
“Everything he did from that point forward would attract undue attention. And that was a problem both for the Office and for him”.
In fact, Dr. Young acknowledged that at this time one of his main concerns was with the impact the controversy could have on the Chief Coroner's Office itself.
He appears to have given no thought to the impact Dr. Smith’s past work might have had on those criminally accused as a result of his opinions.
At this time Dr. Cairns still had faith in Dr. Smith and had no concerns about his competence.
Dr. Young appears to have been developing such concerns, although he was at pains to assure the Inquiry that they had nothing to do with his decision to take Dr. Smith off the roster."
Harold Levy...hlevy15@gmail.com;
Monday, April 7, 2008
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;
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 Eleven; Closing Submissions; Affected Families; Amber's Case: The Chief Coroner's Office - It's Top Officials - And What They Should Have Known;
MOST EGREGIOUSLY, THOSE RESPONSIBLE FOR OVERSIGHT AND ACCOUNTABILITY PROVED UNWILLING OR UNABLE TO ENSURE THAT DR. SMITH WAS ABLE TO DEVELOP AND MAINTAIN QUALITIES OF UTMOST IMPORTANCE FOR THE CRIMINAL JUSTICE SYSTEM: COMPETENCE, PROFESSIONALISM, OBJECTIVITY AND HONESTY.
-------------------------------------------------------------------------------------
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 the section in which the Group charges that the Chief Coroner's Office has to take its share of the blame for the "central failings" which caused nightmarish harm to the families involved.
"In 1989-91 a family in Timmins, Ontario faced the worst nightmare that can befall a family – their 12 year old daughter, SM, was charged with manslaughter arising out of the death of Amber, a death Dr. Charles Smith, then the most eminent pediatric forensic pathologist in Canada, believed to have resulted from shaking," this section of the closing submissions begins;
"Following a trial which took place over a period of almost two years, the Honourable Justice Dunn acquitted SM," the section continues;
"The reasons for decision of Justice Dunn raised serious issues about Smith’s dogmatism, his lack of objectivity, and his competence.
They contained what Dr. Pollanen has referred to as a “masterful” analysis of the case.
Anyone reading the decision would have been troubled that not just Dr. Smith but all of the Hospital for Sick Children witnesses in support of the prosecution’s case had a view of the scientific issues in the case which was contrary to that of all of the experts called by the defence from Canada and various jurisdictions in the United States.
In short, this case, and the judicial criticism that followed it, offered many lessons on the pitfalls of dogmatic thinking, tunnel vision and confirmation bias.
For the Office of the Chief Coroner of Ontario, this decision should have served as an opportunity to assess and evaluate Dr. Smith’s work.
All those involved in the coroner’s system were well aware of Dr. Smith’s increasingly powerful role in the investigation of criminally suspicious child deaths.
It should have come as no surprise to them that if Dr. Smith erred the consequences could be enormous.
The opportunity presented by Amber’s case was ignored.
So were many other opportunities in the years that followed.
Indeed, if the evidence heard at this Inquiry is to be believed, it appears that nothing could have attracted the attention of those charged with oversight and accountability for pediatric forensic pathology at the Chief Coroner's Office in the period 1991 to 2001.
The Chief Coroner's Office senior management ignored or minimized:
Judicial criticism of Dr. Smith in the SM decision itself;
0: Dr. Smith’s chronically tardy post mortem reports;
0: Complaints from other participants in the justice system about his timeliness and responsiveness;
0: Misplaced x-rays, a lost cast and mislabelled samples;
0: Opinions of other experts critical of Dr. Smith;
0: Media reports;
0: Complaints from aggrieved families; and
0: Cases stayed or dismissed because of deficiencies in Dr. Smith’s work or his testimony.
Most egregiously, those responsible for oversight and accountability proved unwilling or unable to ensure that Dr. Smith was able to develop and maintain qualities of utmost importance for the criminal justice system: competence, professionalism, objectivity and honesty.
As late as April 2002, Dr. Young, the Chief Coroner of Ontario, was prepared to support Dr. Smith’s professionalism and competence to the Ontario College of Physicians and Surgeons, knowing of Dr. Smith’s conduct relating to the hair in the Jenna case.
As Dr. Young said himself to this Inquiry: “I just don’t know why we didn’t stop him from doing anything at that point”.
The results of these systemic failures are almost beyond comprehension: wrongful convictions, prosecutions that never should have taken place, children separated from their mothers, a murder charge stayed for delay, and families stigmatized and traumatized.
This Inquiry is not the first to hear about tunnel vision and related concepts.
Unfortunately, inquiries dealing with such issues have been a regular feature of the Canadian criminal justice system in recent years.
What makes this Inquiry different is the scope of transgression.
In Ontario, the failures in pediatric forensic pathology are all the more striking in light of the highly-publicized findings and recommendations of the 1997-1998 Kaufman Inquiry into the proceedings involving Guy Paul Morin.
Indeed, Dr. Young testified at the Kaufman Inquiry and was charged with implementing certain of its recommendations.
Against this backdrop, how could those responsible at the Chief Coroner's Office – all dedicated, highly-educated, experienced and informed participants in the death investigation process – get it so wrong?
Was there something unique or deeply flawed about the institutional arrangements for pediatric forensic pathology which led to this result?
Tunnel vision, confirmation bias and other factors undoubtedly played an important role in the work of Dr. Smith and others in the individual cases the commission has reviewed.
Moreover, as the excellent paper submitted by Prof. MacFarlane makes clear, these problems are endemic in human behaviour and reoccur with regularity within the justice system.
The practice of forensic pathology may be more susceptible to these psychological forces because of its very nature – it is an interpretive and inexact science, as many testified, one that is as much art as science.
However, in our submission the evidence is clear that the central failings involve the Chief Coroner's Office itself.
From the outset, the institutional arrangements were flawed.
No meaningful oversight was provided by the Chief Coroner's Office to the Ontario Pediatric Forensic Pathology Unit.
Quality assurance was minimal and ineffective. As the problems began to mount, no one took responsibility for Dr. Smith’s errors nor was he held accountable for them.
The Chief Coroners Office's key executives became too closely associated with Dr. Smith and his work.
The provision of pediatric pathology services became part of a wider public safety mandate of preventing child abuse.
The Chief Coroner's Office played a significant role in creating Dr. Smith’s iconic status within the small world of pediatric death cases.
Having done so, the Chief Coroner's Office proved incapable of assessing his work in an objective manner.
The lack of an independent complaints process meant that the same people who had promoted Dr. Smith’s career and had a vested interest in his work product were responsible for reviewing and assessing complaints.
The systemic issues that have given rise to this Inquiry, best illustrated in the lives and experiences of the Affected Families, must be addressed through a critical assessment of what happened to them: how their lives intersected with the coronial system, the criminal justice system, and the child protection system in this Province at a time when they were each mourning the death of a child.
The systemic failures and solutions do not begin and end at the doors of the Ontario Pediatric Forensic Pathology Unit or the Chief Coroner's Office, or indeed at the door of Dr. Charles Smith.
Because of this, our submissions will follow the Commissioner’s mandate to review and assess the institutional arrangements in place during the years of the mandate in order to best make appropriate recommendations for the future.
We will do so through an overview of the crucial evidence relating to the institutional failures arising out of the six cases involving our clients.
We make a number of recommendations focused on systematic change, with the aim of restoring public confidence."
Harold Levy...hlevy15@gmail.com;
-------------------------------------------------------------------------------------
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 the section in which the Group charges that the Chief Coroner's Office has to take its share of the blame for the "central failings" which caused nightmarish harm to the families involved.
"In 1989-91 a family in Timmins, Ontario faced the worst nightmare that can befall a family – their 12 year old daughter, SM, was charged with manslaughter arising out of the death of Amber, a death Dr. Charles Smith, then the most eminent pediatric forensic pathologist in Canada, believed to have resulted from shaking," this section of the closing submissions begins;
"Following a trial which took place over a period of almost two years, the Honourable Justice Dunn acquitted SM," the section continues;
"The reasons for decision of Justice Dunn raised serious issues about Smith’s dogmatism, his lack of objectivity, and his competence.
They contained what Dr. Pollanen has referred to as a “masterful” analysis of the case.
Anyone reading the decision would have been troubled that not just Dr. Smith but all of the Hospital for Sick Children witnesses in support of the prosecution’s case had a view of the scientific issues in the case which was contrary to that of all of the experts called by the defence from Canada and various jurisdictions in the United States.
In short, this case, and the judicial criticism that followed it, offered many lessons on the pitfalls of dogmatic thinking, tunnel vision and confirmation bias.
For the Office of the Chief Coroner of Ontario, this decision should have served as an opportunity to assess and evaluate Dr. Smith’s work.
All those involved in the coroner’s system were well aware of Dr. Smith’s increasingly powerful role in the investigation of criminally suspicious child deaths.
It should have come as no surprise to them that if Dr. Smith erred the consequences could be enormous.
The opportunity presented by Amber’s case was ignored.
So were many other opportunities in the years that followed.
Indeed, if the evidence heard at this Inquiry is to be believed, it appears that nothing could have attracted the attention of those charged with oversight and accountability for pediatric forensic pathology at the Chief Coroner's Office in the period 1991 to 2001.
The Chief Coroner's Office senior management ignored or minimized:
Judicial criticism of Dr. Smith in the SM decision itself;
0: Dr. Smith’s chronically tardy post mortem reports;
0: Complaints from other participants in the justice system about his timeliness and responsiveness;
0: Misplaced x-rays, a lost cast and mislabelled samples;
0: Opinions of other experts critical of Dr. Smith;
0: Media reports;
0: Complaints from aggrieved families; and
0: Cases stayed or dismissed because of deficiencies in Dr. Smith’s work or his testimony.
Most egregiously, those responsible for oversight and accountability proved unwilling or unable to ensure that Dr. Smith was able to develop and maintain qualities of utmost importance for the criminal justice system: competence, professionalism, objectivity and honesty.
As late as April 2002, Dr. Young, the Chief Coroner of Ontario, was prepared to support Dr. Smith’s professionalism and competence to the Ontario College of Physicians and Surgeons, knowing of Dr. Smith’s conduct relating to the hair in the Jenna case.
As Dr. Young said himself to this Inquiry: “I just don’t know why we didn’t stop him from doing anything at that point”.
The results of these systemic failures are almost beyond comprehension: wrongful convictions, prosecutions that never should have taken place, children separated from their mothers, a murder charge stayed for delay, and families stigmatized and traumatized.
This Inquiry is not the first to hear about tunnel vision and related concepts.
Unfortunately, inquiries dealing with such issues have been a regular feature of the Canadian criminal justice system in recent years.
What makes this Inquiry different is the scope of transgression.
In Ontario, the failures in pediatric forensic pathology are all the more striking in light of the highly-publicized findings and recommendations of the 1997-1998 Kaufman Inquiry into the proceedings involving Guy Paul Morin.
Indeed, Dr. Young testified at the Kaufman Inquiry and was charged with implementing certain of its recommendations.
Against this backdrop, how could those responsible at the Chief Coroner's Office – all dedicated, highly-educated, experienced and informed participants in the death investigation process – get it so wrong?
Was there something unique or deeply flawed about the institutional arrangements for pediatric forensic pathology which led to this result?
Tunnel vision, confirmation bias and other factors undoubtedly played an important role in the work of Dr. Smith and others in the individual cases the commission has reviewed.
Moreover, as the excellent paper submitted by Prof. MacFarlane makes clear, these problems are endemic in human behaviour and reoccur with regularity within the justice system.
The practice of forensic pathology may be more susceptible to these psychological forces because of its very nature – it is an interpretive and inexact science, as many testified, one that is as much art as science.
However, in our submission the evidence is clear that the central failings involve the Chief Coroner's Office itself.
From the outset, the institutional arrangements were flawed.
No meaningful oversight was provided by the Chief Coroner's Office to the Ontario Pediatric Forensic Pathology Unit.
Quality assurance was minimal and ineffective. As the problems began to mount, no one took responsibility for Dr. Smith’s errors nor was he held accountable for them.
The Chief Coroners Office's key executives became too closely associated with Dr. Smith and his work.
The provision of pediatric pathology services became part of a wider public safety mandate of preventing child abuse.
The Chief Coroner's Office played a significant role in creating Dr. Smith’s iconic status within the small world of pediatric death cases.
Having done so, the Chief Coroner's Office proved incapable of assessing his work in an objective manner.
The lack of an independent complaints process meant that the same people who had promoted Dr. Smith’s career and had a vested interest in his work product were responsible for reviewing and assessing complaints.
The systemic issues that have given rise to this Inquiry, best illustrated in the lives and experiences of the Affected Families, must be addressed through a critical assessment of what happened to them: how their lives intersected with the coronial system, the criminal justice system, and the child protection system in this Province at a time when they were each mourning the death of a child.
The systemic failures and solutions do not begin and end at the doors of the Ontario Pediatric Forensic Pathology Unit or the Chief Coroner's Office, or indeed at the door of Dr. Charles Smith.
Because of this, our submissions will follow the Commissioner’s mandate to review and assess the institutional arrangements in place during the years of the mandate in order to best make appropriate recommendations for the future.
We will do so through an overview of the crucial evidence relating to the institutional failures arising out of the six cases involving our clients.
We make a number of recommendations focused on systematic change, with the aim of restoring public confidence."
Harold Levy...hlevy15@gmail.com;
Wednesday, April 2, 2008
Part Seven: Closing Submissions: Affected Families Group: Chief Coroner's Office Alleged To Have Turned Dr. Charles Smith Into "Icon"; Implications;
OVER TIME, HE BECAME THE LARGEST FROG IN THE SMALL POND OF PEDIATRIC FORENSIC PATHOLOGY – IN FACT, THE ONLY FROG.
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THE ONTARIO CHIEF CORONER'S OFFICE'S ROLE IN PROMOTING DR. SMITH’S CAREER, ITS DESPERATE NEED FOR HIS SERVICES, AND THE BENEFITS ASSOCIATED WITH HIS ICON STATUS GO A LONG WAY TO EXPLAIN THE (OFFICE'S) FAILURE TO TAKE ANY STEPS PRIOR TO 2001 TO RESPOND TO DR. SMITH’S ERRORS AND ITS GLACIAL REACTION IN 2001 AND FOLLOWING WHEN DR. SMITH’S FALL FROM GRACE BEGAN.
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FROM CLOSING SUBMISSIONS: THE AFFECTED FAMILIES GROUP:
-------------------------------------------------------------------------------------
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 section of the submissions argue that the Ontario Chief Coroner's Office is responsible for creating Dr. Smith's "icon status" with extremely unfortunate consequences for Ontario's criminal justice system.
"Dr. Smith’s interest in and involvement with coroner’s autopsies appears to date to the early 1980’s," the section begins;.
"Over time, he became the largest frog in the small pond of pediatric forensic pathology – in fact, the only frog," it continues.
"By the mid 1980’s he had begun to lecture on forensic pediatric pathology, including giving seminars for pathologists and coroners who were working for the Chief Coroner's Office.
According to Dr. Cairns, during this time no one else had an interest in forensic pediatric pathology, and the Chief Coroner's Office was encouraging him to develop that expertise.
By the late 1980’s and early 1990’s, Dr. Smith was lecturing to Crown Attorneys and police officers and had become a fixture at educational courses for coroners.
He began to lecture at international conferences, for example, the first North American conference on Child Abuse and Neglect.
Dr. Cairns readily admitted that around this time, in the early 1990’s, it was very advantageous for Ontario Chief Coroner's Office to have someone who had developed this type of expertise.
Dr. Cairns also agreed that being appointed as Director of the Ontario Pediatric Forensic Pathology Unit would have enhanced Dr. Smith’s reputation.
By the mid-1990’s, Dr. Smith was giving a forensic pathology course for regional pathologists, seminars for the Canadian Association of Pathologists and a lecture to the Association of Family Court Judges.
Furthermore, Dr. Smith was giving a number of presentations to the American Association of Forensic Sciences, including papers where Dr. Young was listed as a co-author.
Dr. Cairns acknowledged that throughout this period, from 1991 forward, Dr. Young was actively assisting Dr. Smith’s career, in the sense of promoting him wherever he could.
Dr. Cairns agreed that “Dr. Smith didn’t come out of nowhere and become an icon overnight”.
Indeed, Dr. Cairns admitted that all of Dr. Smith’s career steps from the mid-1980’s right forward to the mid to late-1990’s were taken with the active encouragement and involvement of the Chief Coroner's Office.
One of the reasons for that encouragement was that it was very useful for the Chief Coroner's Office to have someone with this expertise and with this stature.
Dr. Smith’s curriculum vitae also makes it clear that as he gained expertise and prominence, he began to give lectures in areas which were strictly speaking outside his area of competence, for example on the topic of child abuse.
Dr. Cairns agreed that Dr. Smith took on a “public awareness” role in connection with the investigation of child abuse.
As time went on, Dr. Smith’s stature began grew.
He went on international exhumations. He went on a well-publicised trip to the Arctic.
He went to India.
He began to get favourable press treatment.
In each case, his association with the Chief Coroner's Office would have been very apparent.
Dr. Cairns admitted that the Chief Coroner's Office assisted Dr. Smith’s career throughout and that the Office benefited from his expertise and his pedigree75.
In short, the Chief Coroner's Office had a vested interest in Dr. Smith’s continuing success.
If Dr. Smith turned out to have feet of clay, that would have an unfavourable impact for the Office.
Dr. Cairns, in his capacity as Deputy Chief Coroner of Ontario, gave opinion evidence in support of Dr. Smith in two specific cases this Inquiry has reviewed (Nicholas and Paolo).
The very fact that he would do so would suggests that the Chief Coroner's Office as an institution supported Dr. Smith’s opinion and testimony in those cases.
This has been identified as a problem by Dr. Crane, for example.
The Chief Coroner's Offices' role in promoting Dr. Smith’s career, its desperate need for his services, and the benefits associated with his icon status go a long way to explain the Chief Coroner's Offices' failure to take any steps prior to 2001 to respond to Dr. Smith’s errors and its glacial reaction in 2001 and following when Dr. Smith’s fall from grace began."
Harold Levy...hlevy15@gmail.com;
-------------------------------------------------------------------------------------
THE ONTARIO CHIEF CORONER'S OFFICE'S ROLE IN PROMOTING DR. SMITH’S CAREER, ITS DESPERATE NEED FOR HIS SERVICES, AND THE BENEFITS ASSOCIATED WITH HIS ICON STATUS GO A LONG WAY TO EXPLAIN THE (OFFICE'S) FAILURE TO TAKE ANY STEPS PRIOR TO 2001 TO RESPOND TO DR. SMITH’S ERRORS AND ITS GLACIAL REACTION IN 2001 AND FOLLOWING WHEN DR. SMITH’S FALL FROM GRACE BEGAN.
-------------------------------------------------------------------------------------
FROM CLOSING SUBMISSIONS: THE AFFECTED FAMILIES GROUP:
-------------------------------------------------------------------------------------
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 section of the submissions argue that the Ontario Chief Coroner's Office is responsible for creating Dr. Smith's "icon status" with extremely unfortunate consequences for Ontario's criminal justice system.
"Dr. Smith’s interest in and involvement with coroner’s autopsies appears to date to the early 1980’s," the section begins;.
"Over time, he became the largest frog in the small pond of pediatric forensic pathology – in fact, the only frog," it continues.
"By the mid 1980’s he had begun to lecture on forensic pediatric pathology, including giving seminars for pathologists and coroners who were working for the Chief Coroner's Office.
According to Dr. Cairns, during this time no one else had an interest in forensic pediatric pathology, and the Chief Coroner's Office was encouraging him to develop that expertise.
By the late 1980’s and early 1990’s, Dr. Smith was lecturing to Crown Attorneys and police officers and had become a fixture at educational courses for coroners.
He began to lecture at international conferences, for example, the first North American conference on Child Abuse and Neglect.
Dr. Cairns readily admitted that around this time, in the early 1990’s, it was very advantageous for Ontario Chief Coroner's Office to have someone who had developed this type of expertise.
Dr. Cairns also agreed that being appointed as Director of the Ontario Pediatric Forensic Pathology Unit would have enhanced Dr. Smith’s reputation.
By the mid-1990’s, Dr. Smith was giving a forensic pathology course for regional pathologists, seminars for the Canadian Association of Pathologists and a lecture to the Association of Family Court Judges.
Furthermore, Dr. Smith was giving a number of presentations to the American Association of Forensic Sciences, including papers where Dr. Young was listed as a co-author.
Dr. Cairns acknowledged that throughout this period, from 1991 forward, Dr. Young was actively assisting Dr. Smith’s career, in the sense of promoting him wherever he could.
Dr. Cairns agreed that “Dr. Smith didn’t come out of nowhere and become an icon overnight”.
Indeed, Dr. Cairns admitted that all of Dr. Smith’s career steps from the mid-1980’s right forward to the mid to late-1990’s were taken with the active encouragement and involvement of the Chief Coroner's Office.
One of the reasons for that encouragement was that it was very useful for the Chief Coroner's Office to have someone with this expertise and with this stature.
Dr. Smith’s curriculum vitae also makes it clear that as he gained expertise and prominence, he began to give lectures in areas which were strictly speaking outside his area of competence, for example on the topic of child abuse.
Dr. Cairns agreed that Dr. Smith took on a “public awareness” role in connection with the investigation of child abuse.
As time went on, Dr. Smith’s stature began grew.
He went on international exhumations. He went on a well-publicised trip to the Arctic.
He went to India.
He began to get favourable press treatment.
In each case, his association with the Chief Coroner's Office would have been very apparent.
Dr. Cairns admitted that the Chief Coroner's Office assisted Dr. Smith’s career throughout and that the Office benefited from his expertise and his pedigree75.
In short, the Chief Coroner's Office had a vested interest in Dr. Smith’s continuing success.
If Dr. Smith turned out to have feet of clay, that would have an unfavourable impact for the Office.
Dr. Cairns, in his capacity as Deputy Chief Coroner of Ontario, gave opinion evidence in support of Dr. Smith in two specific cases this Inquiry has reviewed (Nicholas and Paolo).
The very fact that he would do so would suggests that the Chief Coroner's Office as an institution supported Dr. Smith’s opinion and testimony in those cases.
This has been identified as a problem by Dr. Crane, for example.
The Chief Coroner's Offices' role in promoting Dr. Smith’s career, its desperate need for his services, and the benefits associated with his icon status go a long way to explain the Chief Coroner's Offices' failure to take any steps prior to 2001 to respond to Dr. Smith’s errors and its glacial reaction in 2001 and following when Dr. Smith’s fall from grace began."
Harold Levy...hlevy15@gmail.com;
Part Six: Closing Submissions; Affected Families Group: "Think Dirty";
UNFORTUNATELY, IN THIS DAY AND AGE, CHILD ABUSE IS A REAL ISSUE, AND IT IS EXTREMELY IMPORTANT THAT ALL MEMBERS OF THE INVESTIGATIVE TEAM “THINK DIRTY.”
THEY MUST ACTIVELY INVESTIGATE EACH CASE AS POTENTIAL CHILD ABUSE, AND NOT COME TO A PREMATURE CONCLUSION REGARDING THE CAUSE AND MANNER OF DEATH UNTIL THE COMPLETE INVESTIGATION IS FINISHED AND ALL MEMBERS OF THE TEAM ARE SATISFIED WITH THE CONCLUSION.
-------------------------------------------------------------------------------------
EXCERPT FROM MEMO 631: "THE 'YOU SHALL USE IT MEMO'...
-------------------------------------------------------------------------------------
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 assertion that "the real question for this Inquiry is what impact the “Think Dirty” mindset had on child death in investigations during the period under review."
The "thinking dirty" section of the submissions begins with the following excerpt from the infamous directive:
"Unfortunately, in this day and age, child abuse is a real issue, and it is extremely important that all members of the investigative team “Think Dirty.”
They must actively investigate each case as potential child abuse, and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished and all members of the team are satisfied with the conclusion."
"It was sent out as a directive: ‘You Shall Use It’," the section continues;
"According to Dr. McLellan, the genesis for Memo 631 was a shared concern by the coroners and police that in several cases of pediatric death around the province, autopsies, skeletal surveys, and toxicology were not being done.
According to Dr. Smith, the protocol was the culmination of a fifteen year effort on his part to change how pediatric forensic autopsies were done in Ontario.
It was specifically designed to respond to mistakes that had been made in investigations and to give guidance to “people who weren’t involved in these kinds of death investigations on a frequent basis.”
For Dr. Young, the protocol was a point of pride because the Memo was “leading edge in trying to document and get consistency in these areas”:
"The philosophy without calling it that, was being adopted worldwide…. If you went to forensic meetings that was the discussion that was going on. The formalization of a protocol and the institutionalizing of trying to get consistency in the approach to these cases, we were leading edge at that point in time."
For Cairns, the phrase “think dirty” was “like the Nike swoosh” – a brand.
In 2003, Dr. Young attended as a witness before the Shipman Inquiry and gave evidence about “the philosophy” that led to findings made by Dame Janet Smith as follows:
"…the coronial service in Ontario seeks and is successful in securing for itself a high public role. The profile ensures that the public is aware of both the existence of the service and mechanism of investigating deaths about which there is any concern or problem. This acts as a positive encouragement to report deaths about which any concern arises… the investigating coroners are instructed to consider the possibility of “think dirty” and to liaise with the family in investigating the death."
However, in his evidence before the Inquiry, Dr. Young took great pains to distance himself from his former “brand” by saying:
“I doubt anyone would want to take ownership for it now, but I can tell you I won’t take ownership…. I mean I suppose the person who used it the most often was Dr. Cairns, but I really don’t know.”
The real issue about “Think Dirty” is not the words themselves.
Several witnesses have testified that the words were intended only to connote that persons investigating unexpected child deaths should utilize a “high index of suspicion”.
The phrase “Think Dirty” has now been replaced in the 2007 Autopsy Guidelines with a mandate to “Think Objectively, Think Truth”, with an admonition to “keep an open mind to death by child abuse”, which we accept as appropriate.
The real question for this Inquiry is what impact the “Think Dirty” mindset had on child death in investigations during the period under review."
Harold Levy...hlevy15@gmail.com;
THEY MUST ACTIVELY INVESTIGATE EACH CASE AS POTENTIAL CHILD ABUSE, AND NOT COME TO A PREMATURE CONCLUSION REGARDING THE CAUSE AND MANNER OF DEATH UNTIL THE COMPLETE INVESTIGATION IS FINISHED AND ALL MEMBERS OF THE TEAM ARE SATISFIED WITH THE CONCLUSION.
-------------------------------------------------------------------------------------
EXCERPT FROM MEMO 631: "THE 'YOU SHALL USE IT MEMO'...
-------------------------------------------------------------------------------------
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 assertion that "the real question for this Inquiry is what impact the “Think Dirty” mindset had on child death in investigations during the period under review."
The "thinking dirty" section of the submissions begins with the following excerpt from the infamous directive:
"Unfortunately, in this day and age, child abuse is a real issue, and it is extremely important that all members of the investigative team “Think Dirty.”
They must actively investigate each case as potential child abuse, and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished and all members of the team are satisfied with the conclusion."
"It was sent out as a directive: ‘You Shall Use It’," the section continues;
"According to Dr. McLellan, the genesis for Memo 631 was a shared concern by the coroners and police that in several cases of pediatric death around the province, autopsies, skeletal surveys, and toxicology were not being done.
According to Dr. Smith, the protocol was the culmination of a fifteen year effort on his part to change how pediatric forensic autopsies were done in Ontario.
It was specifically designed to respond to mistakes that had been made in investigations and to give guidance to “people who weren’t involved in these kinds of death investigations on a frequent basis.”
For Dr. Young, the protocol was a point of pride because the Memo was “leading edge in trying to document and get consistency in these areas”:
"The philosophy without calling it that, was being adopted worldwide…. If you went to forensic meetings that was the discussion that was going on. The formalization of a protocol and the institutionalizing of trying to get consistency in the approach to these cases, we were leading edge at that point in time."
For Cairns, the phrase “think dirty” was “like the Nike swoosh” – a brand.
In 2003, Dr. Young attended as a witness before the Shipman Inquiry and gave evidence about “the philosophy” that led to findings made by Dame Janet Smith as follows:
"…the coronial service in Ontario seeks and is successful in securing for itself a high public role. The profile ensures that the public is aware of both the existence of the service and mechanism of investigating deaths about which there is any concern or problem. This acts as a positive encouragement to report deaths about which any concern arises… the investigating coroners are instructed to consider the possibility of “think dirty” and to liaise with the family in investigating the death."
However, in his evidence before the Inquiry, Dr. Young took great pains to distance himself from his former “brand” by saying:
“I doubt anyone would want to take ownership for it now, but I can tell you I won’t take ownership…. I mean I suppose the person who used it the most often was Dr. Cairns, but I really don’t know.”
The real issue about “Think Dirty” is not the words themselves.
Several witnesses have testified that the words were intended only to connote that persons investigating unexpected child deaths should utilize a “high index of suspicion”.
The phrase “Think Dirty” has now been replaced in the 2007 Autopsy Guidelines with a mandate to “Think Objectively, Think Truth”, with an admonition to “keep an open mind to death by child abuse”, which we accept as appropriate.
The real question for this Inquiry is what impact the “Think Dirty” mindset had on child death in investigations during the period under review."
Harold Levy...hlevy15@gmail.com;
Tuesday, April 1, 2008
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;
---------------------------------------------------------------------------------------
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;
DR. YOUNG LACKED THE TOOLS BOTH TO EXERCISE EFFECTIVE OVERSIGHT AND TO RESPOND APPROPRIATELY TO COMPLAINTS.
FROM CLOSING SUBMISSIONS: THE AFFECTED FAMILIES GROUP;
---------------------------------------------------------------------------------------
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;
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