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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The toll in the just these two cases:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Other experts reviewed the case.

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

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

A proper review required expertise in forensic pathology.

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

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

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

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

Harold Levy...hlevy15@gmail.com;

Part Three: Think Dirty: The Paul Bernardo Connection; Some Perspectives;

"I THINK -- MY UNDERSTANDING OF "THINK DIRTY" IS THAT IT WAS INTENDED TO TELL THE MEMBERS OF THE DEATH INVESTIGATION TEAM AND THE PATHOLOGIST TO CONSIDER CHILD ABUSE, AND IN OTHER CIRCUMSTANCES, HOMICIDE. I THINK IT HAS GROWN TO MEAN SOMETHING MORE THAN IT WAS EVER INTENDED TO MEAN."

DR. MICHAEL POLLANEN; IN RESPONSE TO QUESTION POSED BY COMMISSIONER STEPHEN GOUDGE;

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In recent postings I have focused on the "think dirty" policy introduced by Dr. James Young, former Chief Coroner of Ontario, which has come under considerable scrutiny at the Goudge Inquiry.

I have three principle problems with this misguided policy - which fortunately was discarded by Dr. Barry McLellan when he headed the Chief Coroner's Office;

First - It was utterly unnecessary;

Second: It should never have been foisted on coroners throughout Ontario - with their minimum training in forensic science, and:

Third, it was developed for use in the context of so-called "femicides" - and then applied to infant deaths without any consideration given to the complexity of infant deaths and the consequences to innocent parents and caregivers.

Not all pathologists and coroners agreed with the "think dirty" policy.

As Theresa Boyle, my former colleague at the Toronto Star, wrote in a story published on Jan 17, 2008 under the heading "Pathologists directed to "think dirty, probe told," Dr. David Dexter, a Kingston, Ontario pathologist decided to ignore it;

"A Kingston pathologist said he ignored a provincial directive to "think dirty" when conducting autopsies on children because doing so could have led him to conclude they'd died of abuse when they hadn't," Boyle's story began.

"When you're starting from that point of view, the sort of inference is that you've got to create a trail of evidence or logic ... that reflects back on something bad having happened," Dr David Dexter explained to a public inquiry this morning," the story continued;

""So it's an issue of bias, it's an issue of tunnel vision.... It's the wrong approach," he added.

In 1995, former chief coroner Jim Young issued a new protocol for pathologists, coroners and chiefs of police to use in death investigations involving children. It stated:

"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."

Dexter, who serves as director of the regional forensic unit in Kingston, said the wording of the protocol is "absolutely" problematic.

He told the Inquiry into Pediatric Forensic Pathology this morning that he thought the protocol was inappropriate because it could lead him down the wrong path when trying to determine how a child died.

"It infers a bias, a bias that something bad has happened. You've got to be open to a variety of possibilities. So objective thinking is the approach," he said.

The inquiry is looking at errors Dr. Charles Smith made in 20 cases in which people were charged, convicted or otherwise implicated in the deaths of children.

The difference between coroners and pathologists is that coroners oversee entire death investigations while pathologists conduct autopsies."

Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, clearly understood the danger posed by the "think dirty" policy.

Here is his testimony at the Goudge Inquiry in response to questions posed by Justice Stephen Goudge;

COMMISSIONER STEPHEN GOUDGE: Thanks. Before we leave this, there is a question that I have been meaning to ask you. It is a general question, Dr. Pollanen.
The evidence-based approach that you have eloquently put forward really has, as its goal, think truth, if I can put it that way, as opposed to "think dirty". Is that a fair juxtaposition?

DR. MICHAEL POLLANEN: Yes.

COMMISSIONER STEPHEN GOUDGE: Where does a heightened index of suspicion fit into that, if at all? Do you equate that with "think dirty", or is it somewhere in between, or --

(BRIEF PAUSE)

DR. MICHAEL POLLANEN: "Think dirty" is an unfortunate turn of phrase.

COMMISSIONER STEPHEN GOUDGE: Yeah. Yeah.

DR. MICHAEL POLLANEN: I think -- my understanding of "think dirty" is that it was intended to tell the members of the Death Investigation Team and the pathologist to consider child abuse, and in other circumstances, homicide.

I think it has grown to mean something more than it was ever intended to mean.

And I think the best way to say this in -- now -- where we -- where we sit now relative to "think dirty", is that if we think truth, if we think objectively, then there is no need to give specific advice about "thinking dirty", for example, or having high -- a high index of suspicion.

Because if -- if you're -- if you're allowing the facts to guide your thinking, they will guide you in the correct direction.

There needs to be no a priori set up for it.

Because if you are engaging the issues in a evidenced-based manner, you will get there.

But if it were so simple.

The -- the other competing variable is that we have, purely on an operation basis, and out of necessity, have identified a group of cases which are criminally suspicious and homicidal.

For the -- for the nature -- because we need to do -- to develop protocols and procedures to deal with those cases.

Because it's a -- it's an epidemiological situation that when you have undifferentiated cases -- this large number of undifferentiated cases, at some point in time before the pathologist gets involved, there has to be some type of streaming.

So the streaming happens essentially by the police, with some input by the coroner into this criminal -- this sort of amorphous category of criminally suspicious.

And that to some extent is "think dirty", unless you are making that decision, or those decisions are purely being made on the basis of evidence and fact.

So there's a lot of -- there's a lot of corollaries that come out of this discussion, but I think the best -- the best framework, or the best model to use to understand the methodology or the desirable process is the framework of an evidence based approach using as an a priori principle: think truth, think objectively, search for the truth.

I think that's the best platform because if you do that you don't need to think benign or malignant, the evidence will guide you.

COMMISSIONER STEPHEN GOUDGE: Okay. A couple of implications, I am sure more than a couple, have been read into the heightened index of suspicion notion.

One is the implication of presumption which you've spoken about; the other is an implication of more thorough investigation than one would have in a simple case.

Is that a fair kind of assertion of two (2) implications that might flow out of the notion of heightened index of suspicion?

DR. MICHAEL POLLANEN: You could think of it that way and I'll -- I'll give a concrete example. In the -- if you look at the protocol that -- the analysis that led to the '95 memo, six thirty-one (631) I think it was --

COMMISSIONER STEPHEN GOUDGE: Yes.

DR. MICHAEL POLLANEN: -- you'll notice that there was an analysis of how frequently x-rays were being done --

COMMISSIONER STEPHEN GOUDGE: Right.

DR. MICHAEL POLLANEN: -- on infants. And what this -- what they found when they did that analysis, which was a very good analysis, was that x-rays were not
being done frequently, or as frequently as would be desirable.

COMMISSIONER STEPHEN GOUDGE: Right.

DR. MICHAEL POLLANEN: And the reason that's significant is that we -- we know that one of the patterns of child abuse are, for example, multiple fractures.

COMMISSIONER STEPHEN GOUDGE: Fractures, yes.

DR. MICHAEL POLLANEN: So the -- the evidence base, to use that term, the -- the conclusion that came from the analysis in the document was "do x- rays".

It did not support the conclusion "think dirty".

COMMISSIONER STEPHEN GOUDGE: So if heightened index of suspicion means gather all the evidence you possibly can and follow it wherever it leads, you would say that's fine?

DR. MICHAEL POLLANEN: Correct. It -- it can include -- it necessarily includes that.

COMMISSIONER STEPHEN GOUDGE: Okay. If it was to mean start with an a priori presumption, you would say that's not fine?

DR. MICHAEL POLLANEN: Correct. And let me enlarge that one (1) other way and say, we've talked about petechia; well, if we see petechia in someone's eyes at autopsy then that is an indication that the neck will need to be dissected in a special way to determine if they have been strangled.

Well, are the petechia telling us to "think dirty"?

No.

The petechia have within their differential diagnosis, manual strangulation, and because of that we need to apply a technique to detect it if it's there.

So in a way both are achieving the same outcome, except one (1) has as its value a search for the truth platform.

COMMISSIONER STEPHEN GOUDGE: Right. Okay, that is a helpful exchange. Thank you.

Harold Levy...hlevy@15gmail.com;

Part Two: Dr. Ernest Cutz's Recommendations: Thinking Dirty V. Scientific Objectivity When It Comes To Sudden Unexpected Death of Children;

"FURTHERMORE, IT IS MY VIEW THAT RESEARCH SCIENTISTS ARE DISCOURAGED FROM PURSUING BASIC RESEARCH INTO SUDDEN INFANT DEATH SYNDROME SINCE IT REMAINS UNDER A CLOUD OF SUSPICION AND SUBJECT OF CRIMINAL INVESTIGATION."

Dr. ERNEST CUTZ: SUBMISSIONS TO THE GOUDGE INQUIRY;

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Dr. Ernest Cutz, a distinguished pathologist at the Hospital for Sick Children in Toronto, has drafted his personal recommendations for the Goudge Inquiry, which have been posted on the Inquiry's Web-site.

Dr. Cutz's views are well worth considering because he has been at the Hospital for several decades and is steeped in all aspects of the Pathology Department -including the Ontario Forensic Pediatric Pathology Unit.

This Blog continues our series on Dr. Cutz's submissions with his thoughts on the need to emphasize research aimed at preventing Sudden Infant Death Syndrome - rather then criminalizing parents and caregivers on the base of unsound sound.

Dr. Cutz addresses this recommendation to three of the systemic factors being explored by the Goudge Commission:

0: What is the approach that best balances the objective that no individual be wrongly accused of child abuse with the objective that children be protected from abuse?

0: What are the relative merits of “thinking dirty” or “thinking truth” or other alternatives? and,

0: How is scientific objectivity best maintained throughout the examination to avoid “tunnel vision” that merely seeks support for an a priori conclusion?

(In an earlier Blog, I recorded Dr. Cutz's disagreement with the controversial "think dirty" protocol released by then Chief Coroner Dr. James Young to all of Ontario's coroner's, pathologists and chiefs of police, on April 10, 1995. I have repeated this post below for the benefit of our readers who did not have the opportunity to peruse it; It ran under the heading: "Think Dirty"; Part One: Two Words At The Heart Of The Inquiry;")

"The (above) objectives can be achieved by the provision of correct pathologic diagnoses based on solid scientific foundations," recommendation begins;

"The acquisition of and advances in medical knowledge are dependent on robust scientific research that constantly evolves and progresses over time," it continues;

"The Inquiry has seen how this evolution in thinking occurs through exposure to the debate and recent changes in attitude with respect to the interpretation of findings relating to Shaken Baby Syndrome.

Similar changes in attitude and thinking have occurred in the areas of Sudden Unexpected Infant Death, Sudden Infant Death Syndrome, and related conditions.

For example, during the 1990s a prevalent, early view was that Sudden Unexpected Infant Death and Sudden Infant Death Syndrome occurred due to “positional asphyxia”, overlaying caused by co-sleeping, or homicide.

These views have not been substantiated by solid scientific evidence.

Now, the prone sleeping position and co-sleeping are recognized as risk factors but are not the actual cause of death in sudden Infant Death Syndrome;

Today we know that Sudden Infant Death Syndrome is a pediatric disease recognized by the World Health Organization as a distinct pediatric medical disease entity.

In addition, Sudden Infant Death Syndrome is not a uniform entity but rather a heterogeneous multifactorial disorder with variable triggering and potentiating factors.

This is as exemplified by the so-called “triple risk model”, i.e. Sudden Infant Death Syndrome occurs as a result of interactions involving (1) a vulnerable infant who possesses some underlining biological abnormality; (2) a critical period of development; and (3) an exogenous stressor such as maternal smoking, mild infection or an unsafe sleeping position.

Current thinking in this area, which reflects recent advances in molecular medicine, indicates that an underlining biological abnormality in large proportion of Sudden Unexpected Infant Deaths and Sudden Infant Death Syndrome cases may, in fact, be due to genetic or molecular disorders (i.e. defects in cardiac or neuronal ion channels, etc.) that are now detectable by modern techniques of molecular pathology.

Notwithstanding these changes, confusion between what are risk factors for Sudden Infant Death Syndrome and what is the actual cause of death in Sudden Infant Death Syndrome persists in certain forensic circles.

Individuals in these circles continue to identify the cause of death in Sudden Infant Death Syndrome cases as being, for example, co-sleeping, which is inaccurate and misleading.

If Sudden Infant Death Syndrome was due to this simple explanation, how could one explain the fact that babies have slept in these situations for many years, but only some die while many do not?

Identifying a baby’s sleep environment as the sole factor responsible for the infant’s death gives only part of the explanation and leads to feelings of guilt and, potentially, to wrongful accusations of parents and caregivers.

Given the importance of accurately identifying and describing cause of death, it is problematic that there is currently very limited or non-existent scientific research on Sudden Unexpected Infant Death and Sudden Infant Death Syndrome;

This is partly due to the fact that the mandate of the Chief Coroner's Office which oversees all pediatric forensic cases, does not include research into medical diseases and because the current legislation and all agreements between the Chief Coroner's Office and the Hospital for Sick Children (including the most recent Ontario Pediatric Forensic Unit agreement)... explicitly forbid the use of tissues for medical research.

Furthermore, it is my view that research scientists are discouraged from pursuing basic research into Sudden Infant Death Syndrome since it remains under a cloud of suspicion and subject of criminal investigation.

To overcome the obstacles surrounding the use of tissues for research individual parental consent can be obtained or a legislative change, similar to that of the State of California, which authorizes and mandates research into Sudden Unexpected Infant Death and Sudden Infant Death Syndrome could be made.

Consequently an “Ontario Center for the study of Sudden Infant Death Syndrome/Sudden Unexpected Infant Death, based on the San Diego Sudden Infant Death Syndrome/Sudden Unexpected Infant Death Research Project database model, should be established at HSC with collaboration projects that include other Ontario pediatric academic centers that perform autopsies on Sudden Infant Death Syndrome/ Sudden Unexpected Infant Death cases.

Funding for the Center should be provided by the Ministry of Long Term Health;

Further, to encourage research in Sudden Unexpected Infant Death and Sudden Infant Death Syndrome, targeted, competitive, peer-reviewed research grants into Sudden Unexpected Infant Death and Sudden Infant Death Syndrome in a form of “Request for Application” should be issued by the Government of Ontario and by the Federal Government through Canadian Institute of Health Research/Institute of Child Health.

The resulting research is important because it would define protocols and methods for molecular diagnoses of disorders underlying Sudden Unexpected Infant Death and Sudden Infant Death Syndrome (for example, the specific channelopaties affecting the cardiovascular or nervous systems).

These new diagnostic tests could provide objective scientific evidence that would be exculpatory in contentious cases of infant death.

The tests would be analogous to DNA tests used currently in the criminal justice system.

When, if at all, should the terms “Sudden Infant Death Sndrome" and "Sudden Unexpected Infant Death" be used in a post mortem report?

These terms are well established and widely accepted in Pediatric clinical and pathology practice.

There is no compelling reason to not to use them in a post-mortem report.

The definition and terminology related to Sudden Infant Death Syndrome and Sudden Unexpected Infant Death has been the subject of a recent review and update by an international panel of experts comprised of paediatric and forensic pathologists with extensive experience in Sudden Unexpected Infant Death Syndrome;

The panel also included pediatricians and an epidemiologist.

It is important to use the correct terminology with respect to Sudden Unexpected Infant Death and Sudden Infant Death Syndrome so that accurate statistics are generated to monitor the incidence and trends of Sudden Unexpected Infant Death and Sudden Infant Death Syndrome as well as to ensure that well-defined groups of cases are used in research studies.

My recommendation is to adopt the use the criteria and definitions outlined in the above publication in Ontario.

c) With advances in Sudden Infant Death Syndrome research it will be possible in the future to render specific pathological diagnoses which will have the effect of removing ambiguity as to the cause and manner of death.

This will reduce the number of cases that today are designated as “undetermined” or “unascertained”.

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Here is the earlier Blog on which articulates Dr. Cutz's disagreement with the controversial "think dirty" protocol released by then Chief Coroner Dr. James Young to all of Ontario's coroner's, pathologists and chiefs of police, on April 10, 1995:

"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."

FROM PROTOCOL ISSUED BY DR. JAMES YOUNG TO ALL CORONERS, PATHOLOGISTS, AND CHIEFS OF POLICE IN ONTARIO ON APRIL 10, 1995.

Two words, containing only three syllables lie at the heart of the Goudge Inquiry: "Think Dirty."

They are contained in a protocol issued by former chief coroner Dr. James Young to all coroners, pathologists, and chiefs of police in Ontario on April 10, 1995.

The policy was ultimately dropped by Dr. Barry McLellan, Dr. Young's successor, after he became Chief Coroner in April, 2004;

The protocol read:

"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."

During the nine years the protocol remained in effect, these words communicated through "think dirty" slides that were used in presentations to coroners throughout the province and other members of the death investigation teams.

The obvious danger of the new policy was that it could be interpreted as requiring local coroners and pathologists to act like police officers instead of as impartial doctors and scientists.

There was also a risk that it could encourage pathologists and prosecutors to feel that they were required to search for criminality behind every death of a child.

A risk that it could turn most innocent death of a child into a murder with all of the horrific consequences, to loving parents, families and caregivers that we have seen thus far at the Goudge Inquiry - especially since Dr. Young's new policy was introduced at a time of heightened public fear over child abuse and pressure on the authorities to do something about it.

At the very least, this Bloggist wonders if the new policy may have validated Dr. Charles Smith's suspicious approach to his work in his own mind - when he still had years of work to accomplish.

In fact, Dr. Young testified that he got the idea from a cop, adopted it, and used it in his own presentations.

Dr. Young told the Inquiry that the "Think Dirty" approach was formulated during a period of world-wide concern "that pediatric deaths weren't being properly investigated."

"(We) were very aware and there were discussions, again, at any forensic meeting about the difficulties in investigating pediatric deaths, and the fact that they -- children died of different things than adults did; and the very difficult job of sorting out metabolic disorders, SIDS, cases of Shaken Baby, cases of
subtle -- suffocation, of subtle child abuse, and dating of injuries, you know, to make sure that what was attributed to the death was -- was relevant," he told Commissioner Goudge.

Young testified that the new protocol was simply intended to remind people to look out for signs of criminality during the course of their investigations.-

Young stressed that, " It was not -- absolutely not, and it was never contemplated or discussed at any meeting I ever attended where the phrase was used, to mean that make cases -- make cases criminal matters when they aren't.

But he agreed with Commission Counsel Mark Sandler that, "with the benefit of -- of what we've learned since, it might be advisable for the Chief Coroner's Office to -- to develop another phrase to communicate the same sentiment."

The new policy troubled Dr. Ernest Cutz, a distinguished pathologist and researcher at the Hospital for Sick Children.

Dr. Cutz is one of the world's leading authorities on the Sudden Infant Death Syndrome (SIDS);

Cutz told the Inquiry he found the concept of "thinking dirty" inappropriate because he interpreted as saying, "you are implying guilt up front, and, you know, until proven otherwise."

"I use the balanced approach," he said. "Looking at the facts and evidence, you know, regardless of what the motto is."

Cutz said that it made sense to be alert to the possibility of criminality in those relatively few cases where there had been a history with law enforcement or involvement with a Children's Aid Society.

However, he objected to the protocol because, "too heavy on the side of the forensic" as contrasted with the function of "Looking (at) what is the cause of death and...what what are the diseases and mechanism underlying it."

Doctor Cutz noted that he had voiced his objections to the protocol to the late Dr. Larry Becker, Head of the Pathology Department, but was not aware if Dr. Becker passed his objections on to the Chief Coroner's Office.

He said, however, that he had seen reference in correspondence to a meeting at ended by senior officials of the Chief Coroners Office, including Dr. Bernard Chiasson, at which Dr. Becker raised his own concerns about the policy.

On January 21, 1997, Dr. Cutz wrote a letter to Dr. Chiasson at the Chief Coroner's Office requesting a meeting to discuss information he had received from Dr. Becker that the Coroner's office was considering removing himself and a colleague from the rotation for performing medico-legal autopsies at the hospital.

The transcript of Dr. Cutz's testimony on this subject reads as follows:

MS. JENNIFER MCALEER: (Commission Counsel); And what -- what else did Dr. Becker tell you?

DR. ERNEST CUTZ: Well, you know, he said that, you know, if -- if I want any -- any sort of explanation as to the reasons and/or, you know, what -- what -- how can one mediate the situation, I have to -- to see Dr. Chiasson.

MS. JENNIFER MCALEER: And did you, in fact, meet with Dr. Chiasson --

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: -- to discuss this issue?

DR. ERNEST CUTZ: Yeah.

MS. JENNIFER MCALEER: And what -- what was your recollection of those discussions?

DR. ERNEST CUTZ: Well, I sort of outline in my letter here that, you know, the -- my experience at doing these cases at the Hospital for Sick Children and
outlining my, you know, experience in the different kinds of conditions which include, you know, natural deaths as well as -- as well as cases of child maltreatment or suspected homicide. And I bring to his attention one (1)
particular illustrated case to show that I have the same level of concern and erudition in carrying out pathology investigations, and I give -- give him example of it.

MS. JENNIFER MCALEER: Well, did Dr. Chiasson explain to you why -- well, first of all, did he verify what Dr. Becker had told you, that there was a
prospect that you and Dr. Wilson would be removed from the roster doing medicolegal work? Did he tell you that was something they were considering?

DR. ERNEST CUTZ: Well, when I asked for the meeting I said, This is what I'd like to discuss with him. So he didn't sort of say, you know, You're going to
be removed. But, you know, we were discussing the -- the situation.

MS. JENNIFER MCALEER: And what was your understanding as a result of your letter and your meeting with Dr. Chiasson? Did you continue to perform
medicolegal autopsies?

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: And was your performance of those medicolegal autopsies restricted in any way?

DR. ERNEST CUTZ: No, it wasn't restricted. I continued, as before, doing the non- homicide cases. You know, when I asked as to what the reasons were for removing me, it was sort of very vague. Something saying I was soft on crime, and I didn't collab-- or cooperate with the police which came to me as a 1 total surprise.

MS. JENNIFER MCALEER: Okay. So who said you were soft on crime?

DR. ERNEST CUTZ: Dr. Chiasson. Or there was a perception of.

MS. JENNIFER MCALEER: And do you know what the basis of that perception was?

DR. ERNEST CUTZ: He didn't explain, didn't give examples.

MS. JENNIFER MCALEER: And -- and the second reason was because you had difficulty communicating with the police?

DR. ERNEST CUTZ: No, that I did not cooperate with the police, which came as a total surprise, as I don't recall any incident. I was most cooperative at all instances with the police. I had no reason to -- so it came as a total surprise to me.

MS. JENNIFER MCALEER: And did Dr. Chiasson explain to you what the basis of that concern was --

DR. ERNEST CUTZ: He said he has -- he has no specific examples.

MS. JENNIFER MCALEER: Okay. Did you discuss this issue with Dr. Smith?

DR. ERNEST CUTZ: No.

MS. JENNIFER MCALEER: And after -- after this point in time, Dr. Cutz, you did continue to do medicolegal autopsies?

DR. ERNEST CUTZ: That's right. I thought the meeting with Dr. Chiasson was useful because we cleared the air, you know, this -- this -- to see what
the problems were. And, you know, actually I -- I -- part of the letter was -- you know, I gave him the breakdown of all the cases I did in the past five (5)
years, which was two hundred, twenty-five (225) cases, and -- and show him that, you know, it -- major portion were pediatric disease, which is no way anybody would have diagnosis outside of a pediatric centre. Okay. So -- so we -- we rendered a very valuable service to -- to making the right diagnosis for
the families. Okay. And then I show him the percentage of cases which went to inquests, which went to -- okay, which -- in every instance I was involved, a correct diagnosis was made, the crime was pursued, the crime was prosecuted and the person was jailed for -- for the crime.

For his part, Dr. Chaisson testified at the Inquiry that he had concerns about Dr. Cutz's and his colleague's "attitude over forensics."

Pressed by Commissioner Goudge over what he meant by their "attitude over forensics" Dr. Chiasson replied:

"From a pediatric pathology perspective, they were not insignificant, and -- and it wasn't simply the number of -- of cases as -- as much as my perception that when it came to cases they -- they weren't really as apprised at looking at injuries and the potential significance of -- of injuries as, was my view of, Dr. Smith, who was clearly interested in pediatric forensic pathology and -- and, you know, whose focus was in that - - that area."

The good news is that Dr. Barry McLellan put the "think dirty" protocol to rest when he became chief Coroner.

"(My) own teaching in recent years has been that it's important to keep an open mind. But, I can tell you that "think dirty" slides and the phrase "think dirty" was removed from many of the standard presentations that we were giving to members of the death investigation team".

"When I redid the presentation that the coroner's office gives as part of the major case management course, that was taken out of the course," McLellan explained.

"So, I can't say that there has been a specific effort to send out a communication saying, Don't think dirty, but the approach has been different through our educational courses, through our new courses for coroners, and the emphasis is to keep an open mind. And, as such, you know, we'll end up with the best quality of death investigation."

I will give the last word for this posting to Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, who told the Ontario Court of Appeal in the Mullins-Johnson case that new guidelines effectively tell Ontario's pathologists and coroners: "Don't think dirty; Think objectively. Think truth."

Harold Levy...hlevy15@gmail.com;

Can Dr. Smith's Evidence To Inquiry Be Used In A Criminal Prosecution?

Several of our readers have asked me whether the evidence Dr. Smith gave to the Goudge Inquiry could be used against him in a criminal prosecution.

When this question arises I usually point out that the purpose of the Inquiry is not to make findings of civil liability or criminal culpability - but rather to find solutions to a badly broken system of forensic pediatric pathology in Ontario.

But the question is relevant because Dr. Smith asserted the protection of Section 9 of the Public Inquiries Act to a written statement he filed with the Commission as well as to his oral testimony at the outset of his testimony.

Since I have no expertise in this area, I turned to my friend Professor Alan Young, of the Osgoode Hall Law School at York University, for his views on the issue.

Alan is the author of a timeless book entitled "Justice Defiled: Perverts, Potheads, Serial Killers, and Lawyers", published by Key Porter books in 2003;

How can you not be drawn into a book which says in its preface: "I've done my time in the criminal -justice industrial complex, and I should have walked away from this dying beast. But I felt compelled to write this book, and acting on compulsion will have its costs. Exposing the idiocy of lawyers and judges does not bode well for maintaining a successful career in law. Neither law nor religion takes kindly to ridicule. Painting a picture of hypocrisy and stupidity within a sacred institution can only lead to my being shunned as a heretic...So let the heresy begin."

Can anyone think of another "sacred" Canadian profession worthy of Prof. Young's pen?

Hmmmmmm!

Back to Prof. Young's views on the scope of the immunity:

"The answer is not always simple but the general rule in Canada is that a witness at an inquiry is protected by use immunity (i.e. the evidence cannot be directly used in another proceeding and derivative use immunity (i.e. any evidence found or derived directly from the testimony)," he explains.

"In Canada we do not give transactional immunity (immunity from all charges - so Smith can still be charged if evidence is collected without reliance upon his testimony) (also it is not always clear if derivative use immunity is required but use immunity would be the bare minimum required to comply with the Charter s7 & 13;)"

Whether there is any basis for charging Dr. Smith criminally, say for perjury or obstructing justice, is, of course, another question.

I will leave that one where it belongs - with the police and the prosecutors;

Harold Levy; hlevy15@gmail.com;

"System Failure": A Journalist's Perspective;

"THE SYSTEM - AN AMORPHOUS COLLECTIVE OF POLICE, PROSECUTORS, DEFENCE LAWYERS, DOCTORS AND SCIENTISTS - DOES NOT OPERATE WITH THE RUTHLESS EFFICIENCY OF A TV CRIME DRAMA, EVIDENCE AT THE INQUIRY HAS SHOWN. AT TIMES, IT APPEARS FRIGHTENINGLY INEPT, BOTH AT DOING THE WORK THAT IS ITS RAISON D'ETRE AND AT MONITORING ITS OWN PERFORMANCE".

FROM "SYSTEM FAILURE" BY ROBB TRIPP; KINGSTON WHIG-STANDARD;

Several of our readers have suggested that I highlight "System failure" - an analysis of many of the important things that have been learned thus far at the Goudge Inquiry.

The story is by reporter Robb trip who has distinguished himself by his fine reporting on "Sharon's Case" and the larger context involving Dr. Charles Smith and Ontario's badly broken pediatric forensic pathology system, for the Kingston Whig-Standard;

It is particularly relevant in view of the recently filed witness statement in which Dr. Martin Queen says he heard Kingston police making disparaging comments about Sharon's mother during Sharon's autopsy. (See: Kingston Police disparaged Sharon's mother during autopsy; Witness Statement; Sunday Feb. 10, 2009);

"More than 50 days of testimony at a provincial inquiry did not foster any certainty about how Sharon, a seven-year-old Kingston girl, died in a filthy basement 11 years ago," the story begins.

"No certainty, although the case is central to the work of the inquiry as it reviews more than a decade of faulty child-death investigations in Ontario.

There is certainty now about two things.

The pathologist who conducted the autopsy on the mutilated body of the child, Dr. Charles Smith, was stunningly inept and poorly supervised.

The system in which he worked failed miserably in its narrow-minded quest to affix blame for Sharon's death.

"Justice is never going to be served for that little girl," says Lynn Bergeron, a factory worker in Cornwall.

Bergeron lived four doors away from Louise Reynolds and her daughter Sharon on June 12, 1997, the night Sharon's body was found in the basement of her Rosemund Crescent townhouse.

Bergeron took the distraught mother into her home, comforted her and helped search the neighbourhood that night when Sharon could not be found.

"It still haunts me," says Bergeron. "Not a week goes by that I don't think of her."

It frustrates her that the inquiry has deepened, not resolved, the mystery.

"Everyone's forgetting about this little girl," she says.

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The Goudge commission was established by the province after a shocking review by the Office of the Chief Coroner.

It found that Smith, once considered the country's leading expert on suspicious child deaths, made mistakes in 20 cases, including at least a dozen in which wrongful convictions may have occurred.

The inquiry's mandate is to find out what went wrong and offer recommendations to restore public confidence and to fix a badly broken system. It was not charged with uncovering the truth about how 20 children died.

That may never be possible, particularly in Sharon's case.

Louise Reynolds was charged with second-degree murder in June 1997, two weeks after her daughter died.

Sharon had been savaged.

There were more than 80 wounds to her arms, neck and head. A large portion of her scalp was torn from her head and tossed on the floor a metre from her body.

Police theorized that Reynolds, a single mother living on welfare, stabbed her third-born child in a fit of rage over recurring head lice.

Smith was assigned by his boss, chief coroner Dr. James Young, to do the autopsy, he has testified.

Smith had virtually no experience with penetrating injuries or animal attacks, the inquiry heard, although by then he had been doing coroner's autopsies for 16 years.

Smith concluded that Sharon was stabbed to death. When the defence raised the notion that a pit bull terrier that was in the basement that night attacked the child, Smith was unequivocal.

It was "absurd" to suggest a dog had anything to do with the child's death, Smith testified at a preliminary hearing in Kingston in 1998. A judge ordered Reynolds to stand trial for murder.

With that, the justice system bore down on the accused mother, unrelentingly for another three years, until prosecutors withdrew the charge in the face of uncertain forensic evidence.

After a second autopsy, other experts concluded that most of Sharon's injuries were attributable to a dog attack. Smith changed his opinion.

In January 2001, the system released its grip on Reynolds.

For many observers, the story was concluded - a dog did it.

This tidy explanation hasn't satisfied everyone, the inquiry revealed.

Insp. Brian Begbie, one of the key Kingston Police investigators on the case, made it clear he still has doubts about what happened.

"Not one defence expert ... has been able to definitively say all of these wounds - all of these wounds - were caused by a dog," Begbie testified.

Begbie alluded to mountains of other circumstantial evidence the police amassed that was never tested in a courtroom.

There were signs of a cleanup in the basement that night.

There were conflicting accounts from witnesses that the man who owned the pit bull in the basement that night found Sharon's body long before police officers did.

There were conflicting statements about whether Sharon's body was found covered in garbage bags - although no bags covered her when she was found by police.

A large sweatshirt, soaked in blood, was found near Sharon's body.

Begbie still has doubts about the forensic findings. He noted that one of the final experts to consider the evidence, a renowned forensic anthropologist in Tennessee, found marks on Sharon's skull that he didn't think were dog injuries.

"The dog didn't put the marks there, so what did?" Begbie responded under questioning by Peter Wardle, a lawyer who represents Reynolds. Wardle said some experts believe that those marks were made during the first autopsy.

Begbie said police investigated the possibility and were told that no one used a scalpel on the child's skull in the area where the marks appear.

Begbie is not alone in his doubt.

Dr. Robert Wood, a forensic dentist and bite-mark expert who mistook dog injuries for stab wounds when he first considered the case, testified that he still has misgivings.

"I even believe that some of the marks were stab marks in the head," Wood told the inquiry.

Smith did not use his testimony at the inquiry as a chance to permanently distance himself from the mystery of Sharon's death.

Instead, he said he was never convinced that Louise Reynolds was guilty.

"I always recognized that she could have been innocent," Smith testified. "The determination of who was responsible for Sharon's death was not mine."

Begbie also noted, cryptically, that Kingston Police continue to work on the case, although he did not elaborate.

Smith's appearance at the inquiry solidified any remaining doubt about his incompetence. During a week of sometimes solemn, sometimes tearful testimony, the doctor acknowledged his many mistakes.

He apologized profusely and said he was embarrassed and truly sorry. But Smith afforded himself absolution, professing that he didn't know, as he bungled case after case, that he should have been better trained.

"Retrospectively, I didn't realize how extraordinarily limited was my knowledge or expertise and so I didn't recognize how potentially dangerous it was, if I can use that expression, to do that work," Smith testified of his autopsy on Sharon.

The disastrous public failure of the Reynolds prosecution, coupled with several other botched cases, eventually led to the review that exposed Smith's mistakes.

The public inquiry that followed has exposed the failings of the entire system.

Dr. James Young, who was chief coroner from 1990 to 2004, testified that he should have realized sooner that there were serious problems with Smith's work.

Young said that "sadly," he never read a blistering judgment issued by a Timmins judge in 1991, who acquitted a young girl charged with killing a child she was babysitting.

The judge harshly criticized Smith's opinions, which were contradicted by nine other experts. The judgment cast serious doubt on Smith's work. Young testified that he never read the judgment until the Goudge commission began its work.

Eight years after the Timmins case, after another bungled child death investigation involving Smith, Young received a complaint from the father of a Sudbury woman wrongly accused of killing her child, based on Smith's faulty work.

The man quoted the 1991 judgment in his letter of complaint.

Young testified that he read only the first portion of the 1999 letter of complaint.

"So I very likely stopped reading at that point 'cause I have absolutely no recollection, and I was - I think it would be fair to say - dumbfounded in your office when you showed me the [1991] judgment and referred to it the first time," Young told a lawyer for the inquiry.

While Young testified at the inquiry that he read only part of the 1999 letter, that's not what he told the Sudbury man who sent it.

"I have read your brief in detail and considered it very carefully," Young wrote in a May 1999 response entered into evidence at the inquiry.

Eventually, Young dismissed the complaints against Smith.

Young also sought to block the Ontario College of Physicians and Surgeons from hearing complaints against Smith, arguing that the college had no jurisdiction over Smith's work done on contract for the Office of the Chief Coroner.

Eventually the college did hear the complaints, and censured Smith for troubling deficiencies in his work.

There was no detailed investigation of Smith's work until a new chief coroner, Dr. Barry McLellan, was in place.

While Smith's errors are alarming, he was just one component in a process - a justice system in Ontario that grinds through more than half a million criminal prosecutions each year.

The system - an amorphous collective of police, prosecutors, defence lawyers, doctors and scientists - does not operate with the ruthless efficiency of a TV crime drama, evidence at the inquiry has shown.

At times, it appears frighteningly inept, both at doing the work that is its raison d'etre and at monitoring its own performance.

The inquiry heard that:

The branch of the justice system that prosecutes, Crown attorneys, has no central system of monitoring and tracking the performance of expert witnesses. Senior Crown officials rely on word-of-mouth to uncover problems.

In some parts of Ontario, local coroners never attend death scenes. In the Reynolds case, local coroner Dr. Ross McIlquham visited the death scene the morning after Sharon's body was found. He did not get close to the body, pronouncing her dead from a distance.

Local coroners have virtually no forensic training, although they are often the only person with a medical background to visit a death scene. Most are family doctors.

Virtually no one with forensic medical expertise attends at death scenes in Ontario.

Pathologists virtually never attend death scenes, unlike practices in parts of the U.S. and England.

When a two-month-old Belleville boy died in 1992, there was suspicion he had been shaken to death. Examination of his brain was important, yet staff at Kingston General Hospital accidentally destroyed the brain before it could be microscopically examined. No one took responsibility for placing the brain in a bucket of water, rather than preservative. Despite this significant error, the child's father was convicted in the boy's death.

The death of a four-month-old Trenton boy in 1996, Joshua, was investigated by a police officer with no experience in suspicious deaths. The officer testified that he'd never even been to an autopsy before he watched Smith examine Joshua.

The inquiry also heard that Smith operated in an unattractive and highly specialized field. Few doctors seek to specialize in forensic medicine and, although a certification system is in the works, there is still no formal accreditation and education process for forensic pathologists in Canada.

The inquiry will now conduct 11 days of round-table discussions on systemic issues..."


As I said in the previous posting:

"It boggles this Blogster's mind that the Kingston force cannot admit that it made a horrible mistake that put a grieving mother and her family through hell, refuses to learn whatever it can from the experience, and is unable to just get on with it."

For shame!

Harold Levy...hlevy15@gmail.com;

Pathology of Lies: Part Two: Smith The Intimidator; Battling Against Truth And Accountability;

One aspect of Dr. Charles Smith's pathology is a tendency to call others "liars" - especially when they are speaking the truth.

A classic example is the $4 million lawsuit he launched against the Canadian Broadcasting Corporation (CBC) in connection with the Fifth Estate documentary "Diagnosis Murder", which exposed the enormous harm Dr. Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

Smith claimed a whopping $2 million in general damages for libel and $2 million punitive damages from the CBC in in his statement of claim, dated February 8, 2000, which was filed as an exhibit at the Goudge Inquiry.

The legal basis of the claim was that the broadcast was "malicious, false and libelous of him (Smith) personally and in the profession", and that it contained "false defamatory innuendoes".

More specifically, it alleged that the impugned aspects of the program would make people believe that:

"(B)ased on the plaintiff's involvement in the review of the three pediatric deaths described in the broadcast, the plaintiff in the performance of his duties as a pediatric forensic pathologist is incompetent."

How misleading!

"(T)hat the plaintiff is not qualified to perform he role of pediatric forensic pathologist;

How dare they suggest that!

"The plaintiff is primarily responsible for miscarriages of justice in the first and second pediatric deaths described in the Broadcast and perhaps is primarily responsible for a miscarriage of justice in the third pediatric death described in the broadcast!

Moi? How could that possibly be true?

As a result of these unwarranted calumnies, Smith went on to say that he "personally and in the way of his profession has been greatly injured in his credit and his reputation and has been brought into scandal, odium, hatred ridicule, contempt and has suffered damage."

Poor Charles...

(The CBC was unaware at the time Smith had asked former Chief Coroner, Dr. James Young, to ask the Ontario Government to help back his private lawsuit with public funds - and the government pulled through!);

(See earlier posting: Goudge Inquiry: Young tells inquiry he persuaded Ontario Government to help fund Dr. Charles Smith's lawsuit against the CBC);

Dr. Smith's lawsuit CBC never played out in a courtroom. (It's probably the last thing he have ever wanted)!

Instead he left it hanging over the CBC like a dark cloud - a stark message to the CBC and any other media that might be tempted to portray the truth about him, that there would be consequences.

This was Smith the intimidator.

The same Dr. Smith who allegedly tried to brow-beat an Ontario Provincial Police Officer who pulled him over for speeding by threatening to curtail his office's investigations of deaths of children in her area if she insisted on giving him a ticket.

See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police) letter; Was this the real Dr. Charles Smith; Parts one, two, three and four: December, 2007);

Smith also lashed out against Macleans Magazine in connection with a feature article by reporter Jane O'Hara which, as we have seen from the evidence called at the Goudge Inquiry, has also withstood the sands of time;

Information he gave O'Hara during the course of a lengthy interview about two elaborate conversations he purported to have with a judge has been proven, during the course of the Inquiry, to be an utter fabrication.

(To think that he had the nerve to sue O'Hara and Macleans for not telling the truth!)

It is mind-boggling.

If only he had taken the stories to heart - and learned from them - instead of blasting away defensively in the courts.

Things might have turned out very differently.

Dr. Smith also fought to keep the truth about him from emerging on three other fronts:

The courts; (His legal battle to prevent any one from suing him for any alleged misconduct on the basis that he was a witness and therefore enjoyed absolute witness immunity);

The College of Physicians and Surgeons of Ontario; (His efforts, backed up by the Chief Coroner, Dr. James Young, to persuade the College that it did not have the legal jurisdiction to hear complaints against pathologists for work done on behalf of the Chief Coroner's Office, and;

Public Opinion: His lawyer's efforts to play down suggestions that Dr. Smith was responsible for miscarriages of justice while sending out the message that he he was only responsible for mistakes and errors - a theme which Dr. Smith played out to the hilt in his testimony at the Inquiry.

First, the courts; For about five years, Dr. Smith fended off law-suits - with their potential to compell him to testify and produce documents - with his arcane legal argument that he could not be sued because of a common law doctrine intended encourage people testify in legal proceedings without fear of being sued.

The Ontario Court of Appeal finally opened a door to lawsuits from the people affected by his work, by ruling that the lawsuits were focused on his death investigations – and not on the testimony he later gave in court.

Second: The College; Smith, took the legal position, that the College had no jurisdiction to investigate complaints against him for the reasons referred to above.

We now know, from evidence called at the Goudge Inquiry, that Dr. James Young, the Chief Coroner of the day, attempted to get the College to decline to receive the complaints and forward them to his office where they would be dealt with internally.

Ultimately, the Ontario Health Professions Review Board ruled against Smith and Young, and the three complaints could finally proceed - but not without significant delay and aggravation for the complainants;

A scary thought: If Dr. Smith had managed to fend off both the courts and the College he would have been totally without any external public accountability

(While, at the same time, as we know from the evidence called at the Inquiry, he was not being subjected to internal accountability by either his superiors at the Hospital For Sick Children or in the Chief Coroner's office);

Lastly, the spin being put on Dr. Smith's work by his lawyers is illustrated by a legal document they filed at the outset of the Inquiry.

As I set out in an earlier posting: "Lawyers representing Dr. Charles Smith claim some media incorrectly reported that an independent review found he had "erred" in his work, engaged in "misconduct" - and that his actions had, "directly resulted in miscarriages of justice."

Smith's lawyers make these allegations in a "factum" filed at the Goudge Inquiry on Smith's application to have his own lawyers elicit his evidence "in chief."

The lawyers refer to a "background paper" released by Dr. Barry McLellan, Chief Coroner of Ontario at that time, which announced the result of an independent inquiry of criminally suspicious and homicide cases where Dr. Charles Smith conducted autopsies or provided opinions.

"The Office of the Chief Coroner revealed that in 20 of the 45 cases, the reviewers "had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both," the lawyers say in the factum.

"Moreover, the Chief Coroner advised that there were "restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of not criminally responsible, in 13 of those cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted."

But Smith's lawyers contend that, "despite the absence of any indication in the Backgrounder that Dr. Smith had "erred" in his work, or that he had engaged in any misconduct, subsequent media coverage of the "Backgrounder" described a "revelation of errors" in Dr. Smith's work."

They also allege that, "Moreover, because the Office of the Chief Coroner advised that some of the cases in which concerns were identified had resulted in convictions, the public perception created by the media coverage was that Dr. Smith's "errors" had directly resulted in miscarriages of justice."

The "factum" also alleges that media coverage of government announcements relating to the Inquiry were "highly prejudicial"..." referring to Dr. Smith himself as "an error prone pathologist", and questioning whether his work was "reckless" or "inept.";

(See earlier posting: Smith and the media: Part Six; Smith's lawyers criticize media;)

But no lawyer's tactic could ever contain the ugly truth's about Dr. Smith that were ultimately exposed in the courts, through the College, and at the Inquiry - all of which proved to be beyond Dr. Smith's control and influence.

We have learned that he was not only a liar - both inside and outside of court - but also that he did his best to prevent others from learning the truth, and to defy accountability.

A very calculating and intimidating man.

Harold Levy...hlevy15@gmail.com;

"Think Dirty"; Part One: Two Words At The Heart Of The Inquiry;

"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."

FROM PROTOCOL ISSUED BY DR. JAMES YOUNG TO ALL CORONERS, PATHOLOGISTS, AND CHIEFS OF POLICE IN ONTARIO ON APRIL 10, 1995.

Two words, containing only three syllables lie at the heart of the Goudge Inquiry: "Think Dirty."

They are contained in a protocol issued by former chief coroner Dr. James Young to all coroners, pathologists, and chiefs of police in Ontario on April 10, 1995.

The policy was ultimately dropped by Dr. Barry McLellan, Dr. Young's successor, after he became Chief Coroner in April, 2004;

The protocol read:

"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."

During the nine years the protocol remained in effect, these words communicated through "think dirty" slides that were used in presentations to coroners throughout the province and other members of the death investigation teams.

The obvious danger of the new policy was that it could be interpreted as requiring local coroners and pathologists to act like police officers instead of as impartial doctors and scientists.

There was also a risk that it could encourage pathologists and prosecutors to feel that they were required to search for criminality behind every death of a child.

A risk that it could turn most innocent death of a child into a murder with all of the horrific consequences, to loving parents, families and caregivers that we have seen thus far at the Goudge Inquiry - especially since Dr. Young's new policy was introduced at a time of heightened public fear over child abuse and pressure on the authorities to do something about it.

At the very least, this Bloggist wonders if the new policy may have validated Dr. Charles Smith's suspicious approach to his work in his own mind - when he still had years of work to accomplish.

In fact, Dr. Young testified that he got the idea from a cop, adopted it, and used it in his own presentations.

Dr. Young told the Inquiry that the "Think Dirty" approach was formulated during a period of world-wide concern "that pediatric deaths weren't being properly investigated."

"(We) were very aware and there were discussions, again, at any forensic meeting about the difficulties in investigating pediatric deaths, and the fact that they -- children died of different things than adults did; and the very difficult job of sorting out metabolic disorders, SIDS, cases of Shaken Baby, cases of
subtle -- suffocation, of subtle child abuse, and dating of injuries, you know, to make sure that what was attributed to the death was -- was relevant," he told Commissioner Goudge.

Young testified that the new protocol was simply intended to remind people to look out for signs of criminality during the course of their investigations.-

Young stressed that, " It was not -- absolutely not, and it was never contemplated or discussed at any meeting I ever attended where the phrase was used, to mean that make cases -- make cases criminal matters when they aren't.

But he agreed with Commission Counsel Mark Sandler that, "with the benefit of -- of what we've learned since, it might be advisable for the Chief Coroner's Office to -- to develop another phrase to communicate the same sentiment."

The new policy troubled Dr. Ernest Cutz, a distinguished pathologist and researcher at the Hospital for Sick Children.

Dr. Cutz is one of the world's leading authorities on the Sudden Infant Death Syndrome (SIDS);

Cutz told the Inquiry he found the concept of "thinking dirty" inappropriate because he interpreted as saying, "you are implying guilt up front, and, you know, until proven otherwise."

"I use the balanced approach," he said. "Looking at the facts and evidence, you know, regardless of what the motto is."

Cutz said that it made sense to be alert to the possibility of criminality in those relatively few cases where there had been a history with law enforcement or involvement with a Children's Aid Society.

However, he objected to the protocol because, "too heavy on the side of the forensic" as contrasted with the function of "Looking (at) what is the cause of death and...what what are the diseases and mechanism underlying it."

Doctor Cutz noted that he had voiced his objections to the protocol to the late Dr. Larry Becker, Head of the Pathology Department, but was not aware if Dr. Becker passed his objections on to the Chief Coroner's Office.

He said, however, that he had seen reference in correspondence to a meeting at ended by senior officials of the Chief Coroners Office, including Dr. Bernard Chiasson, at which Dr. Becker raised his own concerns about the policy.

On January 21, 1997, Dr. Cutz wrote a letter to Dr. Chiasson at the Chief Coroner's Office requesting a meeting to discuss information he had received from Dr. Becker that the Coroner's office was considering removing himself and a colleague from the rotation for performing medico-legal autopsies at the hospital.

The transcript of Dr. Cutz's testimony on this subject reads as follows:

MS. JENNIFER MCALEER: (Commission Counsel); And what -- what else did Dr. Becker tell you?

DR. ERNEST CUTZ: Well, you know, he said that, you know, if -- if I want any -- any sort of explanation as to the reasons and/or, you know, what -- what -- how can one mediate the situation, I have to -- to see Dr. Chiasson.

MS. JENNIFER MCALEER: And did you, in fact, meet with Dr. Chiasson --

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: -- to discuss this issue?

DR. ERNEST CUTZ: Yeah.

MS. JENNIFER MCALEER: And what -- what was your recollection of those discussions?

DR. ERNEST CUTZ: Well, I sort of outline in my letter here that, you know, the -- my experience at doing these cases at the Hospital for Sick Children and
outlining my, you know, experience in the different kinds of conditions which include, you know, natural deaths as well as -- as well as cases of child maltreatment or suspected homicide. And I bring to his attention one (1)
particular illustrated case to show that I have the same level of concern and erudition in carrying out pathology investigations, and I give -- give him example of it.

MS. JENNIFER MCALEER: Well, did Dr. Chiasson explain to you why -- well, first of all, did he verify what Dr. Becker had told you, that there was a
prospect that you and Dr. Wilson would be removed from the roster doing medicolegal work? Did he tell you that was something they were considering?

DR. ERNEST CUTZ: Well, when I asked for the meeting I said, This is what I'd like to discuss with him. So he didn't sort of say, you know, You're going to
be removed. But, you know, we were discussing the -- the situation.

MS. JENNIFER MCALEER: And what was your understanding as a result of your letter and your meeting with Dr. Chiasson? Did you continue to perform
medicolegal autopsies?

DR. ERNEST CUTZ: Yes, I did.

MS. JENNIFER MCALEER: And was your performance of those medicolegal autopsies restricted in any way?

DR. ERNEST CUTZ: No, it wasn't restricted. I continued, as before, doing the non- homicide cases. You know, when I asked as to what the reasons were for removing me, it was sort of very vague. Something saying I was soft on crime, and I didn't collab-- or cooperate with the police which came to me as a 1 total surprise.

MS. JENNIFER MCALEER: Okay. So who said you were soft on crime?

DR. ERNEST CUTZ: Dr. Chiasson. Or there was a perception of.

MS. JENNIFER MCALEER: And do you know what the basis of that perception was?

DR. ERNEST CUTZ: He didn't explain, didn't give examples.

MS. JENNIFER MCALEER: And -- and the second reason was because you had difficulty communicating with the police?

DR. ERNEST CUTZ: No, that I did not cooperate with the police, which came as a total surprise, as I don't recall any incident. I was most cooperative at all instances with the police. I had no reason to -- so it came as a total surprise to me.

MS. JENNIFER MCALEER: And did Dr. Chiasson explain to you what the basis of that concern was --

DR. ERNEST CUTZ: He said he has -- he has no specific examples.

MS. JENNIFER MCALEER: Okay. Did you discuss this issue with Dr. Smith?

DR. ERNEST CUTZ: No.

MS. JENNIFER MCALEER: And after -- after this point in time, Dr. Cutz, you did continue to do medicolegal autopsies?

DR. ERNEST CUTZ: That's right. I thought the meeting with Dr. Chiasson was useful because we cleared the air, you know, this -- this -- to see what
the problems were. And, you know, actually I -- I -- part of the letter was -- you know, I gave him the breakdown of all the cases I did in the past five (5)
years, which was two hundred, twenty-five (225) cases, and -- and show him that, you know, it -- major portion were pediatric disease, which is no way anybody would have diagnosis outside of a pediatric centre. Okay. So -- so we -- we rendered a very valuable service to -- to making the right diagnosis for
the families. Okay. And then I show him the percentage of cases which went to inquests, which went to -- okay, which -- in every instance I was involved, a correct diagnosis was made, the crime was pursued, the crime was prosecuted and the person was jailed for -- for the crime.

For his part, Dr. Chaisson testified at the Inquiry that he had concerns about Dr. Cutz's and his colleague's "attitude over forensics."

Pressed by Commissioner Goudge over what he meant by their "attitude over forensics" Dr. Chiasson replied:

"From a pediatric pathology perspective, they were not insignificant, and -- and it wasn't simply the number of -- of cases as -- as much as my perception that when it came to cases they -- they weren't really as apprised at looking at injuries and the potential significance of -- of injuries as, was my view of, Dr. Smith, who was clearly interested in pediatric forensic pathology and -- and, you know, whose focus was in that - - that area."

The good news is that Dr. Barry McLellan put the "think dirty" protocol to rest when he became chief Coroner.

"(My) own teaching in recent years has been that it's important to keep an open mind. But, I can tell you that "think dirty" slides and the phrase "think dirty" was removed from many of the standard presentations that we were giving to members of the death investigation team".

"When I redid the presentation that the coroner's office gives as part of the major case management course, that was taken out of the course," McLellan explained.

"So, I can't say that there has been a specific effort to send out a communication saying, Don't think dirty, but the approach has been different through our educational courses, through our new courses for coroners, and the emphasis is to keep an open mind. And, as such, you know, we'll end up with the best quality of death investigation."

I will give the last word for this posting to Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, who told the Ontario Court of Appeal in the Mullins-Johnson case that new guidelines effectively tell Ontario's pathologists and coroners: "Don't think dirty; Think objectively. Think truth."

Harold Levy...hlevy15@gmail.com...