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

FILED EARLY FOR WEDNESDAY APRIL 23, 2008;

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

CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That undertaking expires on Friday.

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

Harold Levy...hlevy15@gmail.com;

Part Five: Case Studies; Systemic Factors; The "Tyrell" Case; As presented by the Affected Families Group;

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

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

The third case has been identified by the Inquiry as the "Tyrell" case;

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By way of brief background:

Tyrell was born in Toronto on February the 1st of 1994.

Tyrell died on on January the 23rd, 1998 in Toronto.

He was almost four (4) years old at the time of his death.

Criminal proceedings were initiated against his caregiver.

The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.

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"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;

"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;

"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.

It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.

Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.

The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.

He immediately got up and tried to run forward but fell and struck his forehead”).

However, this report contains highly prejudicial information about Tyrell’s father.

It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.

In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.

Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.

No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.

As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.

He was drawn into testifying outside his expertise.

He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.

Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.

According to Dr. Smith, “...with the newer studies, the literature is on my side”.

One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.

Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).

He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).

He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).

He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.

Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”

It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.

There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.

The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.

At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.

Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.

Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.

Harold Levy...hlevy15@gmail.com;

Part Five: Case Studies: The "Tyrell" Case; Presented by the Affected Families Group;

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

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

The third case has been identified by the Inquiry as the "Tyrell" case;

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By way of brief background:

Tyrell was born in Toronto on February the 1st of 1994.

Tyrell died on on January the 23rd, 1998 in Toronto.

He was almost four (4) years old at the time of his death.

Criminal proceedings were initiated against his caregiver.

The criminal proceedings concluded on January the 22nd of 2001 when the Crown
withdrew a charge of second degree murder that had been laid against the caregiver.

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"Tyrell’s case is a striking example of the deficiencies with written post-mortem reports in Dr. Smith’s era," the case study begins;

"Other systemic issues arising from the case include confirmation bias, misleading testimony, inappropriate reference to controversy in the literature and communications between Crown and defence," it continues;

"The post-mortem report of Dr. Smith describes the cause of death as “CNS trauma”. It contains no history.

It contains no information explaining how the cause of death was determined. It says nothing one way or another about Maureen’s explanation about Tyrell's fall.

Although Dr. Becker obviously was consulted regarding the neuropathology issues raised by the post-mortem and authored a report on the central nervous system which was incorporated into the report, this is not apparent from the report itself.

The Hospital for Sick Children Final Autopsy Report, a document not released to the police, Crown or defence, contains a history which accurately describes Maureen’s summary of Tyrell’s fall (“he was jumping on couch and jumped backward off the couch, lost his footing, and fell backward, hitting his head on a marble table or a tile floor.

He immediately got up and tried to run forward but fell and struck his forehead”).

However, this report contains highly prejudicial information about Tyrell’s father.

It is impossible to say whether this information might have played a role in Dr. Smith’s thinking about the case.

In conclusion, there are a number of problems with the report itself – with what it contains and what is left out.

Dr. Smith’s reasoning and opinions are not contained in the report but in verbal sidebars with the police at various stages of the investigation.

No attempt appears to have been given to serious consideration of the explanation in light of the pathological findings of bruising in two different areas of the skull.

As outlined in the Overview Report, and in Dr. Crane’s evidence before the Inquiry, Dr. Smith’s evidence at the preliminary Inquiry was inflammatory and misleading.

He was drawn into testifying outside his expertise.

He repeated his opinions on whether short falls could kill in words that could have been taken from a transcript in Amber, even using the same article.

Instead of acknowledging any continuing debate in the literature, he attempted to suggest that Dr. Duhaime now supported his position.

According to Dr. Smith, “...with the newer studies, the literature is on my side”.

One can usefully contrast Dr. Smith’s approach to that of Dr. Robin Humphrey, Neurosurgeon in Chief at the Hospital for Sick Children, who was retained by the Crown shortly before trial.

Dr. Humphreys took the explanation provided by the caregiver as something to be considered seriously (“If the description of what happened to Tyrell...is in any way accurate...”).

He reviewed the pathology findings with the explanation in mind (“Those scalp contusions...could thus be in keeping with the two separate blows to the head created first by striking it on the table and floor, and then secondly after again falling to the floor”).

He concluded that the pathology could provide confirmation for this history (“There is pathological confirmation of these blows”).

He ended his report by concluding that there is considerable uncertainty as to the mechanism of the head injury.

Contrast this to Dr. Smith’s verbal advice to the police: “children do not die from accidental falls of this nature.”

It is clear in retrospect that in this case defence counsel laid traps for Dr. Smith, encouraging him to talk at the preliminary to get his evidence tied down, and preparing to demolish him at trial.

There was sharing of defence opinions just before trial, presumably to ensure that the Crown would not be in a position to seek further opinions.

The Chief Coroner's Office appears to have been unaware of any issues raised by this case until the time when the charges were stayed, when the media reported that the Crown had done so to avoid a miscarriage of justice.

At that time Dr. Cairns spoke to the Crown, Frank Armstrong, and was advised that there were no concerns about Dr. Smith’s conduct in the case.

Arguably, given the controversy swirling about Dr. Smith at the time, Dr. Cairns should have gone further.

Had he spoken to defence counsel, for instance, he may have learned of the misleading evidence given by Dr. Smith earlier in the case.

Harold Levy...hlevy15@gmail.com;

Part One: Case Study; Systemic Factors; The Amber Case; As Presented By The Affected Families Group;

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

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

The first case has been identified by the Inquiry as the "Amber case:;

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By way of brief background:

Amber was born in Timmins, Ontario on March 13th, 1987.

She died on July 30th, 1988 at the age of sixteen (16) months at the Hospital for Sick Children in Toronto.

Criminal proceedings were initiated against her twelve (12) year old babysitter, SM, who was charged with manslaughter.

The trial commenced on October 15th, 1989.

It extended over some thirty (30) hearing dates over the next thirteen (13) months and ultimately concluded in November of 1990.

In 1991, Mr. Justice Dunn acquitted SM of the charge which she faced.

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"The key systemic issues raised by the case involve confirmation bias, tunnel vision, misleading testimony, lack of objectivity in approaching scientific controversy, and failure to appreciate the lessons of the case after the fact," the first case study begins;
.
"There are several striking examples of confirmation bias in the case," it continues;

"Dr. Smith’s testimony that the autopsy was a “fishing expedition” about which all of the experts were pessimistic is one obvious example.

It suggests that he approached the autopsy with a conclusion already formed.

This obviously troubled Justice Dunn.

Another example is the forehead or subgaleal bruise.

According to the overview report, on August 12, 1988, following the decision to exhume Amber’s body, the police had a meeting with Dr. Young.

Police notes indicate that Dr. Young told them that “the autopsy should reveal evidence of bruising between the scalp and skull which would tend to support the babysitter’s story or the absence of bruising which would strongly suggest infant shaking syndrome”.

On exhumation and autopsy Dr. Smith did in fact note a “reddish-brown “forehead bruise and “reddish-brown bruise on the frontal scalp” corresponding to the forehead bruise179, which Justice Dunn later referred to as “bruise 1”.

This bruise was discounted by Dr. Smith as being a trivial injury of little significance.

He appears to have assumed (and so advised one of the defence experts) that it predated the collapse, although this does not appear to have been the case.

At least four of the defence experts, on the other hand, opined that from autopsy photographs they saw bruising in the subgaleal skin (the deeper layers of skin underneath the scalp) consistent with SM’s explanation of a fall.

In other words, confirmation bias led Dr. Smith to discount findings which did not fit with his a priori conclusion that the case was a shaking death.

Tunnel vision helps explain some obvious questions about the case, such as: how could a 12 year old girl shake an 18 month old infant to death?

And why would she do so?

Having reached a conclusion that it must be a shaking death, the prosecution experts made the evidence fit that conclusion (the “bolt out of the blue”) and ignored or discounted other evidence pointing towards the explanation of a fall (the bruise, unilateral subdural hematoma, lack of any signs of prior abuse, the explanation provided by SM).

Ms. Reginbal’s unwillingness to critically evaluate the decision of Justice Dunn at the SCAN team meeting is further evidence of tunnel vision.

As seen later in Tyrell’s case, once the fall was excluded early on in the investigation the facts were arranged to fit an alternate hypothesis, which was made to appear compelling.

Dr. Smith’s misleading evidence is well documented in the decision of Justice Dunn and the Overview Report.

His use of anecdotes, his references to sociological factors in shaking deaths, and his evidence regarding the minimum height for a lethal death stand out.

However, Dr. Smith’s comments on the academic literature are one of the most striking feature in Amber’s case.

At the time, Dr. Duhaime had just published what became a seminal article on the biomechanical forces at play in shaking injuries.

That article suggested that death from pure shaking was unlikely without the evidence of other blunt trauma.

It may well have been the view of many clinicians and pathologists working in the field of infant head trauma at the time that short falls could not kill, but there was certainly opinion to the contrary.

As time went on, opinions in this area began to change.

Dr. Huyer testified that by the mid to late 1990’s he was aware that short falls could kill in extraordinary circumstances.

Dr. Whitwell testified that increasingly there has been literature to suggest that occasionally a low level fall can kill.

Her 2002 paper cites a number of articles published in the period 1984-2002.

Over the next 10 years after his testimony in the Amber case, however, Dr. Smith clung to the illusion that the literature was moving in his direction:

May 4, 1992: In his letter to the CPSO he stated “...in the months that have followed since her death, the increasing body of medical literature in the area of child abuse serves to underscore my opinion:”

March, 1994: While testifying in Dustin’s case, he described the medical literature “which was very controversial five years ago, in fact has become less so...”

March 9, 1998: In his letter to the CPSO he stated “In my view, the medical literature does not support the hypothesis that Amber’s death is attributable to a fall down several carpeted steps. At the time I testified in this trial, the literature was strong on this point and, in the intervening years, the literature is even more definitive”.

January, 2000: During the preliminary in Tyrell’s case, he stated “the literature is very clear that this type of head injury cannot occur as a result of an accidental fall that occurs about the home. The only exception to that rule is the [epi] dural haemorrhage” , and “These are some good studies published in the last ten years that I think are helping to clarify that...”

March 2, 2001: In his letter to the CPSO he stated “...the literature now is more complete and serves to reinforce my earlier and honestly held opinion...”

One can usefully contrast Dr. Smith’s approach to being an expert witness to the Guidelines from the American College of Emergency Medicine:
The expert witness should not provide expert medical testimony that is false, misleading, or without medical foundation. The key to this process is thorough review of available and appropriate medical records and contemporaneous literature concerning the case being examined.

On January 30th, 1992 a meeting took place involving members of the SCAN team, Crown Attorneys, and Dr. Smith to discuss the implications of Justice Dunn’s decision.

This should have been an important “lessons learned” meeting for all involved.

Instead, it appears to have been an exercise in “damage control”.

The case itself had no value as a precedent because the “family court judge” was “at the bottom of the heap” and it would be acceptable to indicate that the team simply disagreed with the decision if it came up at a later date.

Judging from contemporaneous notes, it appears that Dr. Smith took away no lessons from this meeting, nor did others."

Harold Levy...hlevy15@gmail.com;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to the letter:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harold Levy...hlevy15@gmail.com;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harold Levy...hlevy15@gmail.com;

Part 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.

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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;

Superb Newspaper Story: Theresa Boyle; Toronto Star: Father Takes On Dr. Charles Smith At Enormous Cost To Save 12-Year-Old Babysitter Daughter;

As Dr. Charles Smith's lawyers try to convince the world that he was somehow how the victim of a malfunctioning system, Theresa Boyle reminds us that he shouldn't be so easily let off the hook, in a story published Friday, April 4, under the heading: "Dad dove into research on Shaken Baby Syndrome, sold house to prove disgraced pathologist wrong";

Sub-headings help tell the story too: "Father credited for acquittal in baby's death...He knew it had to be a mistake."

This Blog has run many posts related to this family's nightmare - which I have referred to as "the Timmins Case."

"His 12-year-old daughter was charged with manslaughter, accused of causing the death of a toddler she was babysitting. A renowned pathologist, Dr. Charles Smith, had said it was a case of Shaken Baby Syndrome," Boyle's story began;

"The father knew better. His daughter was a straight-A Grade 6 student whose biggest concerns at the time – it was December 1988 – were singing competitions and basketball games. "I told her not to worry, I would straighten this out. They've made a mistake," the story continued;

"A chemist at a mining company, he put his scientific know-how to work for the next two years, determined to prove Smith wrong and clear his daughter. He committed most lunch hours, evenings and weekends to reading scientific journals on arcane subjects such as neuropathology and biomechanics, delving deep into the field of infant head injuries.

The efforts of the father would pay off enormously. His daughter was acquitted and the case became one of 20 botched by Smith and others that were examined at a public inquiry in which final arguments wrapped up this week in Toronto.

But the financial cost was heavy for the father – known only as DM at the inquiry because of a publication ban. The family remortgaged their house twice, eventually selling it. And they cashed in all their RRSPs. In all, $150,000 was spent on flying experts to Timmins, putting them up in hotels and paying for some of them to review the case.

The family's ordeal started in the summer of 1988 when the daughter, SM, got a job babysitting a 16-month-old neighbour, Amber, three days a week. Amber's parents had carefully checked SM's background and felt they could trust her with their daughter. She had taken the Red Cross babysitting course, was a good student, a little league baseball player and had "great reviews" from other families whose children she had babysat.

Tragedy struck on July 28. After awakening from a nap, Amber got out of SM's grasp and tumbled down the stairs, striking her head. She suffered a fatal brain injury, dying two days later at Toronto's Hospital for Sick Children.

Initially, a coroner determined the toddler had died of an accidental head injury. But after the child was buried, officials from Sick Kids, including Smith, requested an exhumation, suspecting abuse.

Smith did an autopsy and determined Amber died of Shaken Baby Syndrome. She had symptoms typically associated with the syndrome, including bleeding on the surface of the brain, brain swelling and retinal hemorrhages. But Smith discounted a bruise on Amber's forehead, wrongly determining it predated the accident. It was a critical error. Experts who later reviewed the case said it was evidence that the child had, indeed, died from striking her head.

On Dec. 15, SM and her parents were asked to come down to the police station. They piled into DM's Ford F-150 SuperCab half-ton, thinking perhaps that they were needed to help tie up some loose ends in the case.

Instead, they were met by a detective who formally charged SM with manslaughter. DM remembers the officer saying it was the hardest thing he ever had to do in his life.

"We were just dumbfounded, totally dumbfounded," DM remembers.

He recalls how vulnerable his daughter appeared. Bundled in her winter jacket, with her long blond hair tied back in a ponytail, the tall pretty girl protested her innocence.

"I didn't kill anybody. I loved that baby," she insisted.

"They put us in another room," the father recalls. "I don't think she even knew what that meant – being charged with manslaughter. She was 12 years old. She probably didn't really understand how serious that was."

DM's initial panic turned to anger. So he channelled his emotions into protecting his daughter, turning to what he knew best: science and research. At the time he was doing metallurgical analysis for Falconbridge Mining, now Xstrata. But during every break, he turned his attention to the science of infant head injuries.

"It certainly helped, working in the field I was in. That's all I was doing was research, and I knew you couldn't be 100 per cent certain of any theory. This one sounded like it was flawed," he says of Shaken Baby Syndrome.

So he set about finding out everything he could about the syndrome, infant head injuries and the biomechanics of falls. He read academic journals and called experts from around the world.

"I wanted to know how you could distinguish a shaking injury from an injury caused by a fall. Right off the bat I knew this was a biomechanical problem," he says.

Little did DM know that he had stumbled upon a major scientific quandary, one that still bedevils scientists today. Indeed, one of the recommendations coming out of the inquiry is for a review of old shaken-baby deaths. That's because cases once viewed as being caused by the syndrome are today often attributed to natural causes.

One of the papers he found was published in the Journal of Neurosurgery in 1987. The seminal study, which was led by Ann-Christine Duhaime from the Children's Hospital of Philadelphia, poked holes in the theory of Shaken Baby Syndrome. She and her colleagues argued that a blunt impact was necessary to cause such injuries.

The theory squared with DM's take on what happened to Amber – that the toddler struck her head during the accidental fall, acquiring a fatal brain injury.

DM tracked down the author and convinced her to take a look at the case and ultimately to travel to Timmins to testify on his daughter's behalf.

In the end, DM found 19 experts around the world whose studies and theories supported his daughter. He paid for nine of them – including neuropathologists, biomechanics experts and pediatricians specializing in child abuse – to fly to Timmins for the trial. Written opinions from others were provided to the court.

The family went bankrupt to cover the costs of SM's defence.

The trial took place over a period of almost two years, a difficult time for the family. SM's marks in school, normally high, dropped. The usually upbeat girl became despondent. Even though she was protected under the Young Offenders Act, Timmins isn't that big and residents were well aware of the identity of the girl at the centre of the trial. Some judged her harshly. Amber's parents still lived across the road.

By the time SM took the stand, she was 14. DM remembers going into the courtroom feeling worried for her, but he emerged feeling proud.

"The judge asked her if she had anything to say. She pointed to all the people behind the Crown – the police and Amber's family – and reminded them: `You believed me before Dr. Smith's shaking theory came out. I loved Amber and I'm innocent.'"

In his written decision acquitting SM, Justice Patrick Dunn said the defence's nine experts succeeded in convincing him that a child could sustain a serious head injury from a short fall.

"When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts, it is riddled with reasonable doubts," he wrote.

The family's lawyer, now a judge, gave much credit for the victory to DM. In his 1995 swearing-in ceremony to the Ontario Court of Justice, Gilles Renaud gave a speech in which he lauded DM.

"No courtroom lawyer has ever enjoyed a better assistant than I did," he said.

The Dunn decision has been a key piece of evidence at the current inquiry, often cited by counsel for the commission and parties with standing. It marked the first time Smith and the Hospital for Sick Children were publicly rebuked for their work on the 20 cases under question.

"The case proved that the people at Sick Kids, particularly Dr. Smith, didn't seem to be aware of groundbreaking research," remarks Peter Wardle, lawyer for this family and others at the inquiry.

DM is now chief chemist at Xstrata, running the lab in which he once worked as a researcher. He half jokingly says he has to keep working because his retirement funds are sorely depleted.

SM declined to be interviewed for this story. She has endeavoured to move on from the case that has so consumed her family. Following the trial, her school grades returned to As. She moved away from Timmins to go to university, eventually acquiring two degrees. She now lives in a southwestern Ontario city and at age 32, has a highly successful career.

DM is well aware that it could have turned out very differently. "Innocence. There's no price for it. It's as simple as that.""

Harold Levy...hlevy15@gmail.com;

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

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

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

-------------------------------------------------------------------------------------
FROM CLOSING SUBMISSIONS: 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 Group's allegation that Dr. Smith, backed by the Chief Coroner's office, assumed sexual abuse by default in several of the cases being reviewed by the Inquiry;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yet that form of reasoning has no basis in science.

As Dr. Pollanen explained:

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

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

Do more investigations to find out."

Harold Levy...hlevy15@gmail.com;

Up-Date: Alarm Bells; Part Two; Chief Coroner's Office Aware As Early As 1996 That Smith Fouled Up Criminal Case By Mixing Up DNA Analysis;

One of the most troubling questions plaguing the Goudge Inquiry is why the Chief Coroner's Office failed to rein in Dr. Charles Smith in spite of several loudly resounding alarm bells.

A first alarm bell: 1990:

One of the first of these warnings the Julie Bowers case - widely reported in 1990 - in which Smith repeatedly revised his opinion as to the time of death.

An American pathologist retained by the defence later told a reporter: "I've never had an experience like this,"..."I drew a conclusion that [police and prosecutors] had a serious problem on their hands."

Dr. Janet Ophoven told the reporter that when she was first called to review Smith's post-mortem report and other forensic evidence she could not get important forensic samples from Smith (who has acknowledged at the Inquiry that he believed his role was to help the prosecution win the case);(

"He withheld, in my opinion, all the materials that I needed," Ophoven said, noting that she was shocked when the critical tissue slides were finally produced. "They were from somebody else." (See earlier posting: The Julie Bowers Case; The very first alarm bells; A precursor of things to come;)

A second alarm bell; 1991:

This Blog has devoted several postings to a second alarm bell which resounded loudly in 1993: Judge Patrick Dunn's scathing criticism of Dr. Smith and the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) team.

See earlier postings: "Lawyers warned "to guard" against Dr. Charles Smith's testimony back in 1993; Nov. 9, 2007);" and "Dr. Smith's "mistakes" in the Timmins case: Independent reviewers for College found a litany of errors: Nov. 11, 2007);)

A third alarm bell: As early as 1996:

Another alarm bell - dating back to as early as 1996 emerged during lawyer Peter Wardle's cross-examination of Justice John McMahon.

Wardle represents six-families and care-givers who were effected by Dr. Smith's opinions.

McMahon is a former crown law officer who, at one point, was asked to canvas crown attornies across the province as to any prosecutions involving Dr. Smith.

This alarm bell relates to Deputy Chief Coroner Dr. James Cairns awareness of Dr. Smith's deficiencies.

As the transcript indicates:

Mr Peter Wardle: And I'm really just highlighting this for you, sir, because we've heard a lot of evidence about what the Coroner's Office knew or didn't know about
issues relating to Dr. Smith's competence in the -- in the late 1990's.

And -- and this would certainly suggest that Dr. Cairns, at least, was aware of one (1) incident involving a mixing up of a sample, which appears to have had some impact on an ongoing criminal prosecution, is that fair?

MR. JUSTICE JOHN MCMAHON: Absolutely, it would be fair based on that -- what Ms. Quinlan's recollection is.

The mistake Dr. Smith made in this 1994 case was fatal to the prosecution;

As Reporter Kirk Makin noted in his story in the Globe and Mail on July 2, 2007, "The mountain of mistakes made by Charles Smith during his 20-year career as Ontario's top forensic pathologist grew higher yesterday, as the Goudge Inquiry learned that a 1994 incest case was derailed because Dr. Smith mixed up DNA samples".

The facts of this case are complex - so rather than summarizing them I will let them flow directly from McMahon's evidence to the inquiry:

MR. PETER WARDLE: So I wanted to just take you through the body of this email, if we may.

The email indicates that Ms. Quinlan had prosecuted Roy Simmons (phonetic) on a charge of manslaughter in which Dr. Charles Smith was a witness.

The prosecution began in 1994, and I believe -- and she says in the email:

"I believe in 1997 or early 1998, we were advised that Dr. Smith had mixed up samples from the post-mortem that were subsequently used in DNA testing."

And then it goes on to say:

"To give you some background, Simmons was charged in 1994 with killing his 3-month-old grandson.

It was believed that he was also the father of the baby.

DNA tests were done to confirm this; however, the tests [and I'm assuming that's the initial tests] show that not only was Simmons not the father of the baby, he was not the grandfather of the baby or the father of the child -- baby's mother.

Although the maternal grandmother was adamant that Simmons was the father of the baby's mother, we were assured by CS -- CFS of the accuracy of the results of the test."

And then you'll see it goes on to say: "Simmons was convicted of manslaughter in October 1995.

The Ontario Court of Appeal ordered a retrial on an unrelated issue.

Before the retrial, the baby's mother advised the police that the information she had given to them about the paternity of the baby was false.

She confirmed that Simmons was the father of the baby.

DNA testing was redone using a sample from the mother and another sample from the
baby.

These second tests confirmed that Simmons was the father and grandfather of the baby, and of course, the father of the baby's mother."

And it's really the last paragraph I wanted to direct you to: "An investigation was undertaken regarding the mixing up of the original sample.

A meeting was held with Dr. Jim Cairns, Dr. Smith, CFS personnel, the investigating officer, Detective Constable Dave Fawcette, Detective Inspector Ken Smith, and myself."

And -- and just stopping there. It would appear from the chronology that this would be -- it doesn't say when this meeting took place, but I'm assuming from what's in this email, that it must have been somewhere between 1996 and 1998.

MR. JUSTICE JOHN MCMAHON: It would make sense.

MR. PETER WARDLE: And then it says: "Dr. Charles Smith explained at that meeting that he had mislabeled the original sample from the baby taken at the post-mortem and had taken the wrong sample to CFS for DNA testing.

This resulted in the initial incorrect result as to the paternity of the baby."

And then it goes on to say: "Simmons was convicted in 1999. After the retrial on the charge of manslaughter, he pleaded guilty to incest."

In spite of this serious error which derailed a prosecution, the Chief Coroner's Office allowed Dr. Smith to continue performing forensic autopsies on children for a further five years - and prosecutors kept calling on him to testify as their expert witness against accused parents and caregivers in court.

Dr. Cairns was not questioned about this meeting during his testimony at the Inquiry;

Blogster's query: This "mix-up" indicated Dr. Smith had problems keeping track of forensic evidence.

Why didn't the Chief Coroner's Office and the Hospital for Sick Children crack down on the cluttered state of his office and his lack of proper systems for the labelling, storing, and preserving of exhibits, at that time?

Harold Levy; hlevy15@gmail.com;

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

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

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

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

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

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

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

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

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

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

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

Eighteen months later, in came Smith.

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

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

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

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

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

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

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

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

But the only real innocent one here is Gagnon.

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

How were his mistakes missed for a decade?

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

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

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

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

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

These are all good questions;

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

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

Harold Levy...hlevy15@gmail.com;

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

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

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

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

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

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

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

Here is the exchange:

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

DR. CHARLES SMITH: I understood --

MS. LINDA ROTHSTEIN: -- Dr. Smith?

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

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

DR. CHARLES SMITH: That's correct."

The implications of this implied admission are enormous.

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

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

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

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

Here is a relevant portion of yesterday's testimony:

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

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

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

(BRIEF PAUSE)

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

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

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

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

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


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

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

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

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

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

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


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

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

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

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

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

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

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

DR. CHARLES SMITH: It was wrong.

MS. LINDA ROTHSTEIN: It was untrue, sir.

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

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

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

Why did Dr. Smith make up this elaborate lie?

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

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

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

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

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

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

Good, honourable people don't do that.

Especially good Christians who are supposed to cherish the truth.

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

There is pattern here.

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

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

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

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

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

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

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

Dr. Charles Randal Smith.

A very ugly man.

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

Harold Levy...hlevy15@gmail.com;

Part Two: The Doctor And The Judge; Fact Or Fantasy? Seeing Through The Apology;

The apology that Dr. Charles Smith made earlier today to Judge Patrick Dunn for two comments to reporter Jane O'Hara rang hollow in this Blogster's ears.

It still leaves open the possibility that Smith's account of his two alleged conversations with Dunn were a full-blown fantasy.

Smith admitted that his statement that Dunn told him that the babysitter in the Amber's case was "guilty" was false.

Smith also admitted that his statement that Dunn told him he believed Amber's case would have had a different result if tried in the 1990's because of new scientific knowledge was false.

His justification for making these two false statements he acknowledged were "harmful" to Dunn's reputation is that, "I believe I heard what I wanted to hear."

That's ludicrous.

It's like saying, "forgive me for my opinions that caused innocent people to be jailed, lose their other children to the authorities, and have their names placed on sexual offender lists, because that is what I wanted to believe."

The fact remains that even today Smith insisted that Dunn discussed Amber's case with him - while Dunn, deposed, in a sworn affidavit, that no such discussions had ever occurred.

During the course of the day Smith made numerous apologies to the innocent people he had caused to suffer.

These apologies had one thing in common: They were all made in cases where his misconduct was so notorious that there was nothing else that he could do.

I was not left with any confidence that these apologies came from his heart - if, indeed, he truly has one.

On several occasions, Dr. Smith told the Inquiry that he was "embarrassed" by his actions - which means, I suppose that they might sully the reputation of the great Dr. Charles Randal Smith.

How embarrassing!

If I seem angry and more sarcastic than usual - because even today - the day on which he says he is embarrassed, humbled, and contrite - there is something fundamental that he still does not seem to understand.

It is that pathologists who work in the criminal justice system bear a huge responsibility to be neutral, fair, thorough and accurate - because if they abuse their power innocent people may suffer.

On another note, I can't imagine how difficult it must have been for the fifteen individuals and family members who were sitting just a few feet away from Dr. Smith, as he tried to justify much of his misconduct.

One of them described her reasons for being present when Smith took the witness stand in an email She posted to friends over the Internet:

"I want this man to see he has not broken me nor my family nor my children," she said.

"I want this man to see that I still have a hell of a lot of fight left in me.

I want this man to know this is just the beginning for me yet the complete end for him.

I hope he loses he license to practice period.

If he can make mistakes and affect peoples lives in death then I am sure he has no problem doing it in life."

Another had to flee the hearing room in obvious distress just moments after Dr. Smith had begun testifying.

I wonder if I would have been able to show such restraint when finally confronted with this obnoxious, pedantic, professorial, and yes, arrogant man, who tore a hole in my life at a time when I should have been allowed to mourn the sudden loss of my child.

Their dignity is exemplary.

(My thanks to the reader who promptly pointed out that I had mixed up the Nicholas and Amber cases). This type of input is greatly appreciated. I have promptly made the necessary changes. HL;

Harold Levy; hlevy15@gmail.com;

Part One: Smith Takes The Witness Box; Fact or Fantasy; The Doctor And The Judge;

"AND THAT WAS THE FIRST OCCASION IN WHICH HE (JUDGE PATRICK DUNN) TOLD ME THAT (THE BABYSITTER) WAS GUILTY AS SIN…"

DR. CHARLES SMITH TO REPORTER JANE O’HARA IN TAPED INTERVIEW

One of the most fascinating documents to emerge during the Goudge inquiry is an affidavit from a judge denying statements by Dr. Charles Smith to a reporter.

To say the least, it is highly unusual for a judge to swear an affidavit for consideration in a public inquiry.

This is the first time that I have ever seen it happen.

The Judge is Patrick Dunn, the provincial court judge who acquitted a ten 12-year-old babysitter in Timmins, Ontario, with a lengthy judgment, released on July 25, 1991, which was harshly critical of the evidence given by Dr. Smith and the Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) team.

The reporter is Jane O'Hara, who obtained Smith's controversial comments during a lengthy interview in preparation of a major article on Smith for MacLean's magazine.

Smith's controversial quotes to O'Hara are particularly significant this morning as as one of the dominant themes that has emerged during the Inquiry is his credibility.

I am referring particularly to matters such as his credibility in his work (the honesty and completeness of his forensic reports), his testimony under in oath in court, his defence of his conduct to the College of Physicians and Surgeons of Ontario, and his comments to reporters.

But let's focus for now on the information he gave O'Hara, as reflected in a transcript of the interview which was filed at the inquiry:

O'Hara: Okay now somewhere along the line when I was doing my research somebody mentioned to me that during the trial that you had said and I'm not sure you had said it but that the judge apparently told you during the trial that (the babysitter) was guilty);

Smith: He told me that on several occasions;

O'Hara: Was that in open court?

Smith: No, I'll tell when it first occurred and this is all off the record.

O'Hara: Sure;

Smith: I testified, I flew up there, being told I would be on the stand for a few hours. And I can't remember the day of the week but I ended up there on a Friday or something and then I was flying back to Toronto for the weekend. And at that time both Canadian and Air Canada or Air Ontario flew up to Timmins. Ummm at lunch time, just as we were going to break Judge Dunn asked me how I was returning to Toronto and I indicated to him unbeknown st to me, he was aware that the Canadian flight I was on was cancelled and he made arrangements for me to have my ticket moved to the other airline and then he made arrangements for me to sit with him on the airplane. And I walked onto the airplane and was stunned when I found myself sitting next to this man, who immediately began discussing this case with me.

O'Hara: At this point you're flying back down to Toronto?

Smith: Yeah, I'm in the middle of my testimony. And I felt extremely uncomfortable discussing the case with him and he said it's fine, because I will base my evidence on the evidence in Court. He said I can be hearer of the fact and trier of the fact and this is fine. And that was the first occasion in which he told me that (the babysitter) was guilty as sin. And he made arrangements when I flew back Sunday afternoon to go back and testify some more, I found myself once again sitting beside him on the airplane which I found extremely, extremely unusual. So that was yeah, the conversation came from there. I didn't know how to handle the man or the situation. It was absolutely bizarre. As soon as I got to Timmins on the Sunday night and the crown attorney, not the one who was prosecuting the case, but the senior crown a guy named Dave Thomas met me at the airport. I said this thing has happened to me I don't know how to interpret it, and what does it mean. And I told Thomas this and I said do I continue, what do we do here? And he said there's been a number of problems in this case and that he would simply take it under advisement and I was simply to go on and testify.

O'Hara: Wow, I think that's dynamite. Were you actually blown away when you read the judge's 75-page judgment.

Smith: I never bothered reading the judgment;..."


During the course of the interview Smith told O'Hara that he had a second discussion about the case with Smith at a family law conference in Toronto about a year after the decision was released.

And now for the judge's affidavit:

The alleged discussion on the airplane:

"During the course of the trial, I flew back and forth between Toronto and Timmins. On one occasion, I was on the same flight from Timmins to Toronto as Dr. Charles Smith. Dr. Smith and I exchanged pleasantries on the flight; Although I do not have a specific recollection of my conversation with Dr. Smith, I am certain that I did not discuss the merits of the case or the evidence with Dr. Smith..."

Dunn's alleged making of Dr. Smith's travel arrangements:

"I have no recollection of making any arrangements with regards to Dr. Smith's airline tickets and I do not believe I would have made such arrangements;"

Dunn's sworn comments on a statement Smith made to the College of Physicians and Surgeons of Ontario dated May 4, 1992 - filed in evidence at the Inquiry - in which Smith says that during the trial Dunn told him he believed (the babysitter) was guilty, and that he agreed with evidence that given by himself and other members of the Hospital for Sick Children Suspected Child Abuse and Neglect (SCAN) team, which Dunn had rejected at the trial:

"At no point during the course of the trial did I discuss Dr. Smith's evidence with him or indicate to Dr. Smith that I believed (the babysitter) to be guilty. I also did not indicate to Dr. Smith that I believed the opinions provided by Drs. Barker, Driver and Smith, as alleged in Dr. Smith's letter to the (College)";

Judge Dunn also made short shrift of Smith's claim that they had discussed the Timmins case at a family law conference, saying: "...I have no recollection of discussing the (Timmins) case with Dr. Smith at the family law conference or at any other time. I would not have discussed the case with Dr. Smith. I would let the written judgment speak for itself."

To this Bloggist, Judge Dunn's affidavit goes to the heart of Dr. Smith's credibility and could raise questions about his (Smith's) mental state depending on who you believe - a provincial court judge in a sworn affidavit or Dr. Charles Randal Smith.

If the judge was to be believed - that he never, ever, discussed the Timmins case with Smith - (let alone told him that the 12-year old babysitter was "guilty as sin"0 -the implication would be that Smith has constructed an elaborate fantasy over two chance meetings (on the airplane and at the family law conference). This would be a detailed fantasy containing very specific conversations, and very specific acts, such as the alleged arrangement of airline tickets and seating accommodation on the plane.

If the doctor is to be believed, Judge Dunn has broken some of the serious rules and traditions that govern judges: They do not talk to witnesses during the course of trials; They do not discuss the merits of trials after they are completed (let alone with witnesses like Smith. This would be utterly improper and could land the judge before a hearing of the Judicial Counsel; (All of which explains why Dunn would have taken the extraordinary step of filing an affidavit with the Goudge Inquiry);

The implications of this credibility issue are extremely serious to both the judge and to Dr. Smith.

Why would Judge Dunn break the cardinal rules? I can't imagine any reason why any judge would put his or her job on the line, especially a judge who had presented such a careful, detailed analysis of all of the scientific evidence - prosecution and defence - in his decision?

Why would Dr. Smith offer a false account to the reporter and the College? We know that the Hospital for Children SCAN team went into "damage control" after Dunn's decision was released. We also know that the Dunn's decision was viewed as a set-back for doctors involved in the ideological movement towards criminalizing as "baby-shaking syndrome) cases which previously had been categorized as "Sudden Infant Death Syndrome (SIDS); Indeed, Dr. Smith described the influential role he was playing in the Shaken Baby Syndrome movement, in an email to O'Hara, dated May, 5, 2001, which reads, in part:

"Some of my cases have triggered research activities into forensic pathology. For instance, you are familiar with the (babysitter) case from Timmins. I was frustrated by the judge's apparent inability to understand the complex medical issues, and so began looking for a way to lay to rest some of the questions which the case posed. As a result we published the largest series of shaken baby syndrome (SBS) in the literature, while we were identifying an autopsy finding which may be unique to this form of injury. (One of the controversies at trial was whether there was such a thing as SBS, let alone whether shaking could kill in the absence of blood impact injury; Our research answers those questions.) Several years ago I was invited to present my special investigation in child abuse to the provincial association of family court judges. Judge Dunn who presided over the (Timmins) case was in the audience and he approached me later to discuss the case. We agreed that if the case had gone to trial in the late 1990's, as opposed to the early 1990's, as opposed to the early 1990's, the uncertainties of that trial would have been obviated. (Dunn denied that this alleged conversation occurred in his affidavit - as well as swearing under oath that he never discussed the Timmins case with Smith.H.L.)"

In the context of the Inquiry, if, Judge Dunn - who enjoys an impeccable professional and personal reputation among lawyers and other judges in his area - were to be believed, then all of Dr. Smith's actions and testimony would have to be viewed through the prism that he has difficulty distinguishing fantasy from truth.

For many years however, Dr. Smith's testimony was largely accepted as gospel by judges, crown attorneys, police officers, and even some defence lawyers.

But he won't walk up to the witness stand this morning as the renowned Dr. Charles Randal Smith whose word was gold throughout the world of forensic pathology, backed up by the Hospital For Sick Children and the Chief Coroner's Office.

He will have to stare out at the many individuals and families who have been effected by his erroneous opinions - many of themwill be present - and he will be required to testify under oath, as to his actions.

The tables have certainly turned.

Next posting: Smith Takes the Witness Stand: Fact or Fantasy; Part Two;

Harold Levy...hlevy15@gmail.com;

Goudge Inquiry: Why Didn't The Prosecutors Sound The Alarm On Dr. Smith? Another Lost Opportunity;

"AND WHAT ABOUT YOU MS. REGIMBAL?," WARDLE ASKED. "YOU GO ON TO YOUR NEXT CASE, DO YOU LEAVE THE AMBER DECISION AND THAT'S REALLY ALL YOU HAVE TO DO AT THIS POINT? YOU STEP OUT OF THE -- OF THE SCENE, SO TO SPEAK?"

LAWYER PETER WARDLE TO PROSECUTOR TERRI REGIMBAL;

One of the troubling questions that has been raised at the Goudge inquiry is why prosecutors who personally became aware of Dr. Smith's serious deficiencies during trials did not sound the alarm to their colleagues.

Lawyer Peter Wardle, who represents several families affected by Dr. Smith at the Inquiry , put this question directly to Terri Regimbal, the Crown Attorney who prosecuted the 12-year-old baby-sitter for Manslaughter in the Timmins case.

"And what about you Ms. Regimbal?," Wardle asked. "You go on to your next case, do you leave the Amber decision and that's really all you have to do at this point? You step out of the -- of the scene, so to speak?"

Regimbal responded that she sent a copy of Judge Patrick Dunn's searing critique of Dr Smith's evidence to the hospital and attended a meeting of the hospital's Suspected Child Abuse and Neglect (SCAN) team that had been called to discuss the case.

"I had taken the time -- it's not a short jaunt from Timmins to Toronto," she told Commissioner Steven Goudge. "I'd taken the time to come to Toronto for this meeting to assist them in assessing it and to try to improve the process."

"Apart from that, that was the end of my obligation as I saw it...but that was pretty well all I did."

(See previous posting: Damage control and lost opportunity: The Hospital For Sick Children Suspected Child Abuse And Neglect


(In addition to deflecting the responsibility to deal with Dr. Smith to the hospital, as his employer, Regimbal, also passed the buck to the the babysitter's defence lawyer and to unnamed criminal lawyers.

"I assumed that he (the defence lawyer) would circulate it (Dunn's decision) with friends," and, "I assumed that the criminal lawyers have their network of communication," she told the Inquiry.")

Wardle's probing examination of Regimbal as to whether she should have done more in the circumstances is worth repeating.

MR. PETER WARDLE: But you would have realized, presumably, that Dr. Smith would also, just like you, he'd go onto his next case, right?

MS. TERRI REGIMBAL: Yes.

MR. PETER WARDLE: And you knew he was running this Unit, did you know that, at the Hospital for Sick Children?

MS. TERRI REGIMBAL: I don't know.

MR. PETER WARDLE: All right. You knew he was an expert on Shaken Baby Syndrome.

MS. TERRI REGIMBAL: Certainly.

MR. PETER WARDLE: You knew he would be called by the Crown in the next case that came along.

MS. TERRI REGIMBAL: Presumably.

MR. PETER WARDLE: And did you think you had any obligation to raise any alarm bells about him?

MS. TERRI REGIMBAL: No, I don't think I felt I had an obligation at that point.

I mean, I could assume safely that this reasonable professional man would read this judgment over, that he may take it to heart, and that he may pull up his socks on some of the areas ...

"I suppose had I heard an alarm, I would have possibly written a colleague and said, Now wait a minute, you better ha -- make sure you have this judgment, but I had no reason in January of 1992 -- sixteen (16) years ago -- to think that he wouldn't take this to heart.

There had been, as far as I was aware, no criticisms of him up to this point.

He seemed to be someone who, on the exterior, was -- was willing to learn from this.

He seemed like a reasonable individual that could take criticism."

In fairness to Ms. Regimbal, in January, 1992, Dr. Charles Smith was an icon who was lavished with praise by both his Colleagues at the Hospital for Sick Children's Hospital, and by the top ranks of the Chief Coroner's office.

In her own words to the Inquiry:

MS: TERRI REGIMBAL: "And up to that point, I hadn't really heard any criticisms of Charles Smith. All I'd heard, even from the Deputy Chief Coroner of the Province, was this man's the foremost Canadian expert in pediatric pathology. And I noticed that the doctors even deferred to him, someone even like a ju -- Dr. Jeff Barker --

MR. PETER WARDLE: Mm-hm.

MS. TERRI REGIMBAL: -- who I had so much respect for because he was so experienced and so well respected internationally. He -- it was obvious he
deferred to and had respect to Charle -- for Dr. Charles Smith.

Regimbal wasn't the only prosecutor was not to buy into the myth of Dr. Charles Randal Smith's greatness.

In response to Commissioner Goudge's question as to whether he had a sense of Smith's reputation as a forensic pediatric pathologist during the prosecution of Brenda Waudby in the Jenna case, Crown Attorney Brian Gilkinson, replied:

"(Well), Dr. Smith was accepted to be, I don't know whether you call it the cream of the crop, but he was very, very highly thought of ...and I had no reason to think that Dr. Smith wasn't competent..."

At one point in her testimony, Regimbal suggested that she was unaware of any complaints about Smith from her colleagues.

Could that have been because none of them, like her, were speaking up?

Harold Levy...hlevy15@gmail.com;