JURYGATE; BARRIE CASE; MORE ON JUDGE'S DECISION TO DECLINE JURISDICTION ON SECRET JURY VETTING MISTRIAL MOTION; THE NATIONAL POST;

"THE SENTENCING HEARING FOR N.B. WILL BEGIN ON SEPTEMBER 28. THE CROWN IS ASKING JUDGE STONG TO SENTENCE THE DEFENDANT AS AN ADULT.

THE COURT OF APPEAL IS EXPECTED TO HEAR ARGUMENTS ABOUT THE JURY BACKGROUND CHECKS FOR THE FIRST TIME THIS FALL IN THE APPEAL OF IBRAHIM YUMNU, WHO WAS CONVICTED OF MURDER BY A JURY IN BARRIE IN 2005."

REPORTER SHANNON KARI; THE NATIONAL POST;

-------------------------------------------------------------------------------

Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

-------------------------------------------------------------------------------

"A Superior Court judge in Barrie has declined to take any action as a result of improper background checks of potential jurors that were conducted by police for the Crown in a first-degree murder trial," reporter Shannon Kari's Sept. 8, 2009, story begins, under the headline, "No jurisdiction to rule in jury-vetting case: judge."

"Justice Alfred Stong has ruled that he did not have jurisdiction to set aside the verdict or order a new trial as a result of the jury vetting," the story continues;

"The defendant, who can be identified only as N.B. because he was 16 years old when he was arrested in the 2006 stabbing death of 14-year-old Brayton Bullock, was convicted this year of first-degree murder.

Nearly a month before the trial the list of potential jurors was sent to local police forces to use confidential databases to conduct background checks. The information was then passed on to the Crown and it was not disclosed to the defence.

The background checks, which have been conducted in Barrie for several years, are contrary to the provisions of the Juries Act and a 2006 directive sent by the Ministry of the Attorney-General to all Crown attorneys in Ontario.

The province's chief prosecutor issued another memo this spring reminding Crown attorneys not to ask for secret background checks.

The jury vetting was disclosed to the lawyer for N.B. in June, a few weeks before the sentencing hearing was supposed to start and four months after the jury returned with its guilty verdict.

Judge Stong indicated that he was bound by previous rulings of the Ontario Court of Appeal.

Unless there is evidence of entrapment of a defendant by the state, a jury's verdict "cannot be altered, except on appeal," the Court of Appeal ruled in 2004.

Defence lawyer Ben Fedunchak said outside court that while the case now proceeds to the sentencing hearing, the jury-vetting issue will be heard eventually.

"This will be a primary ground of appeal," Mr. Fedunchak said.

If the judge had decided he could hear arguments about the impact of the jury vetting, the Crown was prepared to argue that its actions were proper. The Crown office in Barrie maintains that background checks were appropriate because anyone convicted of an indictable offence cannot serve on a jury.

There is no provision however in the Juries Act, which permits the Crown or police to check for eligibility.

The sentencing hearing for N.B. will begin on September 28. The Crown is asking Judge Stong to sentence the defendant as an adult.

The Court of Appeal is expected to hear arguments about the jury background checks for the first time this fall in the appeal of Ibrahim Yumnu, who was convicted of murder by a jury in Barrie in 2005."

The story can be found at:

http://www.nationalpost.com/news/story.html?id=1973550


Harold Levy...hlevy15@gmail.com;

UP-DATE: JURYGATE; BARRIE, ONTARIO CASE: JUDGE DECKINES JURISDICTION ON SECRET JURY VETTING MISTRIAL MOTION; SENTENCING TO PROCEED; TORONTO STAR;

"FEDUNCHAK YESTERDAY ASKED ONTARIO SUPERIOR COURT JUSTICE ALFRED STONG TO OVERTURN HIS CLIENT'S CONVICTION AND ORDER A NEW TRIAL ON THE GROUNDS HIS CLIENT'S RIGHT TO A FAIR TRIAL HAD BEEN VIOLATED BY THE CROWN'S HAVING HAD POLICE DO BACKGROUND CHECKS ON POTENTIAL JURORS WITHOUT INFORMING THE DEFENCE.

STONG RULED HE DID NOT HAVE THE JURISDICTION TO DECIDE THE ISSUE. SENTENCING IS TO BEGIN SEPT. 28."

REPORTER PETER SMALL: TORONTO STAR;

-------------------------------------------------------------------------------

Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

-------------------------------------------------------------------------------

"Performing background checks on prospective jurors is not only legal, but is in keeping with the duties of prosecutors, the Crown is arguing in a murder trial, reporter Peter Small's story begins," under the heading, "Crown defends screening of jurors: Murder trial documents shed light on practice."

"Prosecutors have an "obligation to ensure that only persons qualified to be so are jurors," assistant Crown attorney Ann Tierney argues in court documents at a murder trial in Barrie," the story continues.

"This is the first time Crown arguments on the controversial practice of juror background checks have been available for publication.

Tierney quotes the Supreme Court of Canada as saying in 1998 that "there is nothing inherently evil or criminal about counsel getting background information on prospective jurors."

The Crown submissions are in response to a motion by lawyer Ben Fedunchak calling for a new trial for his client. In February, a jury convicted the 19-year-old man of first-degree murder in the March 2006 stabbing death of 14-year-old Brayton Bullock. Because the accused was 16 when the slaying occurred, he cannot be named.

Fedunchak yesterday asked Ontario Superior Court Justice Alfred Stong to overturn his client's conviction and order a new trial on the grounds his client's right to a fair trial had been violated by the Crown's having had police do background checks on potential jurors without informing the defence.

Stong ruled he did not have the jurisdiction to decide the issue. Sentencing is to begin Sept. 28."

Harold Levy...hlevy15@gmail.com;

JURYGATE; BARRIE, ONTARIO CASE; VETTED JURY RETURNED FURST-DEGREE MURDER CONVICTION; ACCUSED SEEKS MISTRIAL BECAUSE VETTING NOT DISCLOSED TO DEFENCE;

"IN ADDITION TO THE JURY VETTING, THE DEFENCE WAS TOLD IN JUNE THAT THE DAY AFTER THE VERDICT, THE JURY FOREMAN HAD A 10- TO 20-MINUTE TELEPHONE CONVERSATION WITH THE MOTHER OF THE VICTIM. THIS SUGGESTS A "REASONABLE APPREHENSION OF BIAS" BY THE JURY THAT COULD HAVE LED TO A TAINTED VERDICT, ARGUES THE DEFENCE."

REPORTER SHANNON KARI; THE NATIONAL POST;

-------------------------------------------------------------------------------

Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

-------------------------------------------------------------------------------

"A young man convicted of first-degree murder in Barrie is asking a judge to throw out his conviction or order a new trial because prosecutors had vetted lists of potential jurors that were not disclosed to the defence," reporter Shannon Kari's story, published in yesterday's National Post begins, under the heading, "Killer seeks mistrial after jury vetted."

"The legal motion, which will be heard today in Superior Court in Barrie, is the latest example of the ongoing fallout from revelations that prosecutors in some parts of Ontario were using police to conduct background checks on potential jurors, contrary to the provincial Juries Act," the story continues.

"The 19-year-old man, who can be identified only as N.B. because he was a youth when he was charged in the March 2006 stabbing death of 14-year-old Brayton Bullock, was convicted of first-degree murder by a jury in February.

The Crown was seeking to sentence N.B. as an adult earlier this summer. The sentencing hearing was delayed after the National Post first reported in May that the improper background checks were conducted in at least two other cases in Barrie. It is now known the practice has gone on in Barrie for several years, where police were given jury lists and used confidential databases to access information and pass it on to the Crown before jury selection. The Ontario Privacy Commissioner launched an investigation this summer.

The probe was launched after it became known that jury vetting by the Crown and police was also common in Windsor. There were also reports of it happening in Thunder Bay and in one case this year in Toronto.

As well, a Superior Court judge in Windsor ordered the Crown last month to pay $95,000 in legal costs as a result of jury vetting that caused a mistrial four weeks into a murder trial.

In the case of N.B., jury selection began on Jan. 12 of this year. Unknown to defence lawyer Ben Fedunchak, the Crown received the jury lists nearly four weeks earlier. The Juries Act does not permit court staff to turn over the lists to Crown or defence until 10 days before jury selection. While someone convicted of an indictable offence may not serve, there is no provision in the Juries Act that permits the Crown and police to conduct background checks. Instead, jurors may be questioned in open court about their eligibility.

After receiving the lists for the trial of N.B., the Crown sent them to local police forces to conduct the checks. The vetted lists had notations such as "ok" or "possible" for possible criminal record, or "u/k dob" which meant that police could not determine the person's date of birth.

The vetted lists were not disclosed to Mr. Fedunchak until June 19, four months after his client was convicted.

The request to quash the verdict or grant a re-trial is a result of an "abuse of process" and "willful non-disclosure" by the Crown, argues Mr. Fedunchak in written arguments filed with the court.

In addition to the jury vetting, the defence was told in June that the day after the verdict, the jury foreman had a 10- to 20-minute telephone conversation with the mother of the victim. This suggests a "reasonable apprehension of bias" by the jury that could have led to a tainted verdict, argues the defence.

After a jury has issued its verdict, the trial judge generally does not have the right to take any action to alter that decision, the Ontario Court of Appeal said in a ruling five years ago.

Instead, any allegations of Crown or police misconduct raised by the defence are to be assessed by an appeal court. However, the Court of Appeal ruling involved a case where the defence knew about the alleged Crown misconduct during the trial, instead of months after it concluded.

Superior Court Justice Alfred Stong is expected to reserve his decision."

http://www.nationalpost.com/news/story.html?id=1970207

Harold Levy...hlevy15@gmail.com;

JURYGATE; DEFENCE LAWYERS PREDICT A "SLEW" OF APPEALS BASED ON SECRET BACKGROUND CHECKS ON JURORS, TORONTO STAR REPORTS;

"DEFENCE LAWYERS HAVE PREDICTED A SLEW OF APPEALS IN THE WAKE OF REVELATIONS THAT POLICE CONDUCTED SECRET BACKGROUND CHECKS ON PROSPECTIVE JURORS AT THE BEHEST OF PROSECUTORS.

AYRE'S LETTER WAS IN RESPONSE TO ONE FROM FRANK ADDARIO, PRESIDENT OF THE CRIMINAL LAWYERS' ASSOCIATION, WHO DEMANDED THAT THE MINISTRY "COLLECT AND PRESERVE ALL RELEVANT INFORMATION REGARDING THE EXTENT AND DURATION OF THE PRACTICE ACROSS THE PROVINCE.""

REPORTER PETER SMALL; THE TORONTO STAR;

-------------------------------------------------------------------------------

Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

-------------------------------------------------------------------------------

The Toronto Star reports that appeals based on secret vetting of juror's background's will lead to numerous appeals.

"The province's chief prosecutor is pledging to dig up cases where secret jury background checks were made and notify the defence lawyers involved," the Star's Peter Small reported yesterday in a story headed, "Ontario reveals juries given secret background checks."

"In a letter to the province's defence lawyers, John Ayre says he has asked two senior managers to review all available Crown files over the past three years in the Barrie and Windsor areas, where the practice has chiefly taken place and has led to three mistrials," the story continues;

""Where it appears that any type of background check was conducted and the information was not disclosed, defence counsel of record will be notified and provided with disclosure of any available material," Ayre says in his July 14 letter.

A ministry spokesperson said that the notices are going out this week.

Defence lawyers have predicted a slew of appeals in the wake of revelations that police conducted secret background checks on prospective jurors at the behest of prosecutors.

Ayre's letter was in response to one from Frank Addario, president of the Criminal Lawyers' Association, who demanded that the ministry "collect and preserve all relevant information regarding the extent and duration of the practice across the province."

Addario told the Star that he accepts Ayre's pledge at face value.

"The disclosure of what happened and where is an important ingredient to resolving the uncertainty that hangs over cases affected by the practice," Addario said.

Crown prosecutors in Barrie and Windsor have had jury panel lists with notes beside prospective jurors about minor infractions, health records and even their attitudes to police.

Ontario's privacy commissioner, Ann Cavoukian, has ordered a probe.

In his letter, Ayre said that a number of defence counsel across the province have already been making inquiries about specific cases.

"They have been given a response, or a response is pending," Ayre said.

On May 26, Ayre issued a memo reminding Crowns that it is not acceptable to check prospective jurors for anything beyond whether they have indictable – the most serious – criminal offences.

Criminal lawyer Ben Fedunchak is raising the issue of juries vetting in the Barrie murder trail of a youth convicted of stabbing 14-year-old Brayton Bullock in 2006.
Fedunchak, who represents the youth who was about to be sentenced, last week asked Justice Alfred Stong for the verdict to be thrown out largely on the basis that the Crown secretly vetted potential jurors.

The case returns to Barrie Superior Court on Aug. 25.

Harold Levy...hlevy15@gmail.com;

JURYGATE; THREE STRIKES AND YOU'RE OUT? MISTRIAL ORDERED BECAUSE OF TAINTED JURY SELECTION BY CROWN; NEW JURY ALSO TAINTED; SECOND MISTRIAL DECLARED!

"A PREVIOUS MISTRIAL WAS ALREADY CALLED IN THIS CASE AFTER DEFENCE LAWYER MITCHELL WORSOFF INSISTED THE CROWN HAD CONDUCTED "ILLEGAL" BACKGROUND CHECKS ON THE JURY POOL BEFORE JURY SELECTION BEGAN. A SECOND JURY POOL WAS BROUGHT IN, BUT WORSOFF SOON DISCOVERED THE CROWN HAD CONDUCTED BACKGROUND CHECKS ON THAT GROUP AS WELL, AND SO JURY SELECTION BEGAN ONCE AGAIN WITH A FRESH, "UNTAINTED" PANEL. ON FRIDAY, THE CROWN WAS AT THE BRINK OF CLOSING ITS CASE WHEN SUDDENLY THE JUDGE CALLED ANOTHER MISTRIAL;"

REPORTER TRACY MCLAUGHLAN; SPECIAL TO SUN MEDIA;
-------------------------------------------------------------------------------

Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

-------------------------------------------------------------------------------

A Barrie, Ontario trial which has foundered twice because of a tainted jury selection process, has now now been hit with a second mistrial.

The story, published earlier today, is told by reporter Tracy McLaughlan in Sun Media under the heading, "Judge declares mistrial -- again; Alleged street racer accused in deadly Hwy. 400 crash."

"BARRIE -- A jury trial in a high-profile street racing case was suddenly shut down Friday and the jury sent home," the story begins;

"The trial against alleged street racer Ravi Badhwar, 23, has been convoluted at best after it began June 1 and was originally set for only two weeks," it continues;

"Badwhar is charged with street racing causing death and failing to remain at the scene after truck driver David Virgoe, 48, was forced to swerve off the highway into a ditch and was killed June 18, 2007.

The Crown had called 13 witnesses -- many of whom testified they were terrified as they drove along Hwy. 400 when three vehicles suddenly began racing against each other and weaving in and out of traffic at speeds reaching 170 km/h.

Court heard the highway was filled with smoke and dust after drivers were forced to slam on their breaks in the middle of the highway.

The drivers of two of the vehicles have pleaded guilty, but Badhwar has insisted he wasn't part of the racing.

A previous mistrial was already called in this case after defence lawyer Mitchell Worsoff insisted the Crown had conducted "illegal" background checks on the jury pool before jury selection began.

A second jury pool was brought in, but Worsoff soon discovered the Crown had conducted background checks on that group as well, and so jury selection began once again with a fresh, "untainted" panel.

On Friday, the Crown was at the brink of closing its case when suddenly the judge called another mistrial.

In court, the trucker's widow and daughter broke down and cried after hearing the trial wouldn't continue.

Throughout the trial, the mother and daughter sat quietly at the front of the court, sometimes wiping away tears as the court was shown photographic evidence of Virgoe's tanker truck in a twisted heap in the ditch on the highway.

"I know the accused has a right to a fair trial," she said later in an interview, "but what about the rights of the victim? ... How long does this go on?"

There is a publication ban on the reason for this latest mistrial.
A new trial with a new jury is set to begin on Aug. 31.

Harold Levy...hlevy15@gmail.com;

JURYGATE; BARRIE, ONTARIO; DEFENCE ARGUES SECRET JURY VETTING TAINTED FIRST-DEGREE MURDER CONVICTION IN YOUNG OFFENDER CASE;

"COURT DOCUMENTS, FILED BY FEDUNCHAK (DEFENCE LAWYER), STATE HE'S ASKING THAT THE VERDICT BE THROWN OUT, OR FOR AT LEAST A MISTRIAL, ON TWO GROUNDS: THAT THE JURY WAS VETTED AND, SECONDLY, THERE WAS JURY MISCONDUCT. FEDUNCHAK DID NOT ELABORATE ON WHAT THE MISCONDUCT ENTAILED."

TRACY MCLAUGHLIN: SUN MEDIA;
-----------------------------------------------------------------------------

Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

TRACY MCLAUGHLIN; SUN MEDIA;

-----------------------------------------------------------------------------

The Sun Media Sun Story, by Tracy McLaughlin, ran earlier today under the heading, "Lawyer demands murder conviction be tossed."

"BARRIE -- A defence lawyer wants the murder verdict for a young offender convicted in a brutal stabbing tossed out of court because of secret jury vetting, the Toronto Sun has learned," the story begins;

"Lawyer Ben Fedunchak argues the jury was secretly vetted by the Crown before jury selection in a trial that led to a first-degree murder conviction against his client, who can't be identified," it continues;

"Last February following a two-month trial, a jury spent two days deliberating before it decided that the teen, who was 16 at the time, was guilty of repeatedly stabbing 14-year-old Brayton Bullock in the head, back and chest in Lackie's Bush in Barrie on March 9, 2006.

Court documents, filed by Fedunchak, state he's asking that the verdict be thrown out, or for at least a mistrial, on two grounds: that the jury was vetted and, secondly, there was jury misconduct. Fedunchak did not elaborate on what the misconduct entailed.

Fedunchak also complained that the Crown hasn't given him full disclosure regarding both allegations, while some of the disclosure he did receive "has been edited," court documents state.

A three-day hearing was set to begin yesterday to determine whether the teen should be sentenced as an adult, but that was put on hold. A date for possible arguments over a stay of proceedings or mistrial was set for Aug. 25.

Outside court, the mother and family members of the murdered teen were visibly upset.

"We are sick -- just sick about this," said aunt Cheryl Bullock. "A new trial would put this family through the trauma all over again ... We need this to end."

This is the third or fourth time allegations that the Crown has been vetting its juries has arisen at the Barrie courthouse in recent weeks.

Last month, three jury panels were dismissed in Barrie after defence lawyers claimed the Crown obtained lists of prospective jurors with private information written beside their names that included such things as drinking problems, depression, mental health problems, minor criminal convictions, highway traffic offences and drunk driving offences that dated back more than 30 years.

Defence lawyers involved insisted they were shocked and knew nothing about the jury vetting."

Harold Levy...hlevy15@gmail.com;

JUSTICE GOUDGE'S FINDINGS: PART EIGHT; BABY X'S CASE;

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

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

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

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

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

-------------------------------------------------------------------------------

Some of Justice Goudge's strongest criticism of the Deputy Coroner, Dr. Jim Cairns relates to the case of Baby X, in which he permitted Dr. Smith to improperly further a police investigation;

Justice Goudge found that in this case Cairns and Smith had attended case conferences with the police in April and May, 1996 and knew that Baby X's mother was a person of interest in the police investigation;

"Subsequently, Baby X's mother contacted Dr. Cairns to inquire about the results of the autopsy" Goudge reports.

"Dr. Cairns asked Dr. Smith to meet with Baby X's mother, and Dr. Smith agreed.

On September 4, 1996, because of their lawful surveillance of her home, the Ontario Provincial Police (OPP) intercepted a telephone conversation between Dr. Smith and Baby X's mother and learned that that Dr. Smith intended to meet with the mother at her home.

The OPP then told Dr. Smith that the police had installed listening devices in the home, which would likely intercept the scheduled conversation.

Although it is not clear when Dr. Cairns learned that the house was under surveillance, he certainly knew that fact before Dr Smith met with Baby X's mother.

Despite this knowledge, he did not object to Dr. Smith going forward with the meeting;

In short, Dr. Cairns permitted D. Smith to attend at a suspect's house and discuss the contents of the report of post-mortem examination with her while the police secretly recorded their conversation.

Dr. Smith met with the Barrie Police Service and the OPP before and after his meeting with Baby X's mother on September 5, 1996;

The police did not tell Dr. Smith what to do during his meeting with Baby X's mother, nor did they ask him to solicit any information from her.

Nonetheless, with Dr. Cairns approval, Dr. Smith improperly furthered a police investigation."

Justice Goudge concluded that, "Baby X's case is a clear example of a situation where Dr. Cairns failed to provide necessary oversight of Dr. Smith Instead, he permitted Dr. Smith to abandon his appropriate role as an expert scientist and to assist a police investigation improperly."

He noted that several of the forensic pathologists and coroners who testified at the Inquiry emphasized that it is inappropriate for a pathologist to meet with a person who is a suspect of an on-going police investigation - and that the effect of that inappropriate meeting was compounded because the conversation was being intercepted by the police.

"Dr. Cairns and D. Smith compromised the independence of their respective positions as Deputy Chief Coroner and expert witness," Goudge ruled.

"This case was a warning sign about D. Smith's failure to understand the appropriate role of a pathologist in a criminally suspicious case."

"Dr. Cairns dis not recognize the warning sign and, indeed, permitted the meeting to go ahead.

Harold Levy...hlevy15@gmail.com;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harold Levy...hlevy15@gmail.com;

Part Two; Closing Submissions; End Surreptitious Police Surveillance Of Meetings Between Grieving Parents And Pathologists Or Coroners;

It seems pretty obvious that the days after the sudden loss of a child must be among the most torturous that a parent can experience.

It was therefore shocking to learn during the Goudge Inquiry that Dr. Charles Smith had agreed with the Barrie, Ontario police force to meet a bereaved mother in her home to report on his investigation of the death of her child - knowing that their conversation would be surreptitiously recorded by police.

It is impossible to know whether this was an isolated incident - or whether other pathologists and coroner's - supposedly independent -also see themselves as an arm of the police investigation into an infant's death.

For that reason, lawyer Suzan Fraser's recommendation that grieving parents should be spared this intrusive surveillance - on behalf of Defence For Children International Canada - is most welcome.

Fraser notes in a closing submissions filed with the Goudge Inquiry that whether they are under suspicion or not, "parents and guardians should be entitled to receive information about the death of their child, including the post-mortem report in a caring and compassionate environment free from police surveillance and judgment."

"If the opportunity is lost to catch an incriminating statement, so be it," she adds. "There are some forms of police action that ought not to be countenanced."

I personally couldn't agree more - and I hope that Commissioner Goudge will underscore the importance of pathologists and coroner's acting independently of the police - and not as their agents - when he pens his report, now due in September.

For those who have not read it, the earlier posting ran as follows on February 1, 2008 under the heading "Smith: A loyal member of the prosecution team to the end."

"At times it is good to get right to the point" the posting began.

"Dr. Smith has admitted that he saw himself as a member of the prosecution team - and that his role was to help the Crown win the case, "in the 80's," it continued.

However, on Wednesday morning the Goudge Inquiry heard startling evidence that he once agreed to go to Barrie, Ontario to meet with the mother of a deceased child - knowing that the conversation would be recorded by bugs which had been surreptitiously planted in her home by the police.

This was in 1996;

It is also noteworthy that Smith admitted in cross-examination regarded himself as a member of the prosecution team in "Sharon's case" where he testified under cross-examination at the mother's preliminary hearing that it was "absolutely wrong" to hypothesize a dog attack.

(The police theory was that Sharon had 81-wounds inflicted by knives or scissors - and that she had not been attacked by a Pit Bull as defence experts insisted - which later proved to be the case).

"I believe I could well have slipped into an advocacy role here," Dr. Smith said. "I believe that I knew by then that I wasn't to be an advocate ..."

This was in 1998;

Dr. Smith gave this evidence as an "advocate" for the prosecution, seven years after he was appointed Director of the Ontario Forensic Pediatric Pathology Unit at the Hospital For Sick Children in Toronto - and just three years before his name was removed from the roster for performing forensic autopsies.

It was near the end of his career - far from the beginning;

The evidence indicates that Dr. Smith - or "Mr. Smith" as Lawyer James Lockyer, representing nine families insisted on calling him yesterday - saw himself as a loyal member of the prosecution team right to the end.

Back to the Barrie case:

Smith's cooperation in the police investigation is documented in an affidavit by Detective Sergeant Mark Holden which filed as an exhibit;

Here is the complete affidavit - dated January 28, 2008;

"1: I am a staff Sergeant of the Barrie Police Service. I was involved in the investigation into the death of X, who was a minor. I believe that revealing the name of the minor and his mother could jeopardize an on-going investigation. I have knowledge of the matters deposed to in my affidavit.

2: On Sept 4, 1996, the Ontario Provincial Police (O.P.P) intercepted a telephone conversation between Dr. Smith and X’s mother pursuant to an authorization granted under Part VI of the Criminal Code of Canada. Dep. Insp. McNeil of the O.P.P. learned from the conversation that Dr Smith intended to meet with X’s mother at her home in the Barrie area to discuss with her the results of the report on his post-mortem examination on X. Det. Insp. McNeil knew that listening devices installed in the house, also pursuant to a Part VI application, would likely intercept this conversation.

3: Dep. Insp. McNeil subsequently met with members of the Barrie Police Service including me, to discuss the situation. Det. Insp. McNeil telephoned Dr. Smith and advised him that the listening devices installed in the house would likely intercept his conversations with X’s mother.

4: Dr. Smith agreed to meet with the Barrie Police Service and Det. Insp. McNeil and he did so on Sept. 5, 1996, the day he was scheduled to meet with X’s mother. The meeting took place at the Barrie Police Service police station and lasted approximately 20 minutes. During the meeting, the Barrie Police and Det, Insp. McNeil s did not direct Dr. Smith in in any way as to how to conduct the meeting with X’s mother and did not ask him to solicit any information from her. At the conclusion of the meeting with Barrie police and Det. Insp. McNeil, Dr. Smith went to the house of X’s mother and met with her.

5: Following that meeting, Dr. Smith met with representatives of the Barrie Police Service and Det, Insp. McNeil over lunch to discuss his meeting with X's mother. Dr. Smith explained that she had a number of questions about his findings and that he answered her questions arising from his report on post-mortem examination.

6: The Barrie Police officers recall that Dr. Smith expressed a view on X's mother's demeanour when she was discussing her child's death. Dr. Smith said, "It was like talking to a load of gravel." The officers understood this to mean that Dr. Smith was commenting on the inappropriate and flat affect of X's mother during that meeting. The Barrie police do not recall that Dr. Smith expressed a position during the lunch meetings to whether or not his pathology evidence supported X's mother's culpability or not.

7: I recall that there were two case conferences involving Dr. Cairns and Dr. Smith, which were held on April 17, 1996, and May 30, 1996. However at these meetings there was no discussion of any surveillance of X's mother.

8: I do not recall any further meetings with Dr. Smith following his meeting with X's mother.

9: The Barrie police have complied with S. 196 of the Criminal Code and have provided X's mother with written notification of the authorization of the interception."

A few comments:

Doctor Smith acknowledged in cross-examination that his interview with the mother in these circumstances was inappropriate but told the Inquiry that he had been asked to attend the meeting by Deputy Chief Coroner Dr. James Cairns;

In fairness to Dr. Cairns, by now we are well aware that just because Dr. Smith said this under oath does not mean that this is true. (We don't have Dr. Cairns side of the story);

However it is worth pointing out that this may not be an isolated incident in Ontario.

An earlier posting in the context of "Tiffani's case" contained a note written by a prosecutor which read: "Our file contains... a lot of information involving the initial coroner's investigation, including videotaped statements from both accused taken by the Regional Coroner Dr. (Benoit) Bechard and the police without caution, warning, or right to counsel."

Next Posting: Part Three; Closing Submissions; Children's Aid Society Investigations Into Infant Deaths and Miscarriages Of Justice;

Harold Levy...hlevy15@gmail.com;

Smith: A Loyal Member Of The Prosecution Team Right To The End;

At times it is good to get right to the point.

Dr. Smith has admitted that he saw himself as a member of the prosecution team - and that his role was to help the Crown win the case, "in the 80's."

However, on Wednesday morning the Goudge Inquiry heard startling evidence that he once agreed to go to Barrie, Ontario to meet with the mother of a deceased child - knowing that the conversation would be recorded by bugs which had been surreptitiously planted in her home by the police.

This was in 1996;

It is also noteworthy that Smith admitted in cross-examination regarded himself as a member of the prosecution team in "Sharon's case" where he testified under cross-examination at the mother's preliminary hearing that it was "absolutely wrong" to hypothesize a dog attack.

(The police theory was that Sharon had 81-wounds inflicted by knives or scissors - and that she had not been attacked by a Pit Bull as defence experts insisted - which later proved to be the case).

"I believe I could well have slipped into an advocacy role here," Dr. Smith said. "I believe that I knew by then that I wasn't to be an advocate ..."

This was in 1998;

Dr. Smith gave this evidence as an "advocate" for the prosecution, seven years after he was appointed Director of the Ontario Forensic Pediatric Pathology Unit at the Hospital For Sick Children in Toronto - and just three years before his name was removed from the roster for performing forensic autopsies.

It was near the end of his career - far from the beginning;

The evidence indicates that Dr. Smith - or "Mr. Smith" as Lawyer James Lockyer, representing nine families insisted on calling him yesterday - saw himself as a loyal member of the prosecution team right to the end.

Back to the Barrie case:

Smith's cooperation in the police investigation is documented in an affidavit by Detective Sergeant Mark Holden which filed as an exhibit;

Here is the complete affidavit - dated January 28, 2008;

"1: I am a staff Sergeant of the Barrie Police Service. I was involved in the investigation into the death of X, who was a minor. I believe that revealing the name of the minor and his mother could jeopardize an on-going investigation. I have knowledge of the matters deposed to in my affidavit.

2: On Sept 4, 1996, the Ontario Provincial Police (O.P.P) intercepted a telephone conversation between Dr. Smith and X’s mother pursuant to an authorization granted under Part VI of the Criminal Code of Canada. Dep. Insp. McNeil of the O.P.P. learned from the conversation that Dr Smith intended to meet with X’s mother at her home in the Barrie area to discuss with her the results of the report on his post-mortem examination on X. Det. Insp. McNeil knew that listening devices installed in the house, also pursuant to a Part VI application, would likely intercept this conversation.

3: Dep. Insp. McNeil subsequently met with members of the Barrie Police Service including me, to discuss the situation. Det. Insp. McNeil telephoned Dr. Smith and advised him that the listening devices installed in the house would likely intercept his conversations with X’s mother.

4: Dr. Smith agreed to meet with the Barrie Police Service and Det. Insp. McNeil and he did so on Sept. 5, 1996, the day he was scheduled to meet with X’s mother. The meeting took place at the Barrie Police Service police station and lasted approximately 20 minutes. During the meeting, the Barrie Police and Det, Insp. McNeil s did not direct Dr. Smith in in any way as to how to conduct the meeting with X’s mother and did not ask him to solicit any information from her. At the conclusion of the meeting with Barrie police and Det. Insp. McNeil, Dr. Smith went to the house of X’s mother and met with her.

5: Following that meeting, Dr. Smith met with representatives of the Barrie Police Service and Det, Insp. McNeil over lunch to discuss his meeting with X's mother. Dr. Smith explained that she had a number of questions about his findings and that he answered her questions arising from his report on post-mortem examination.

6: The Barrie Police officers recall that Dr. Smith expressed a view on X's mother's demeanour when she was discussing her child's death. Dr. Smith said, "It was like talking to a load of gravel." The officers understood this to mean that Dr. Smith was commenting on the inappropriate and flat affect of X's mother during that meeting. The Barrie police do not recall that Dr. Smith expressed a position during the lunch meetings to whether or not his pathology evidence supported X's mother's culpability or not.

7: I recall that there were two case conferences involving Dr. Cairns and Dr. Smith, which were held on April 17, 1996, and May 30, 1996. However at these meetings there was no discussion of any surveillance of X's mother.

8: I do not recall any further meetings with Dr. Smith following his meeting with X's mother.

9: The Barrie police have complied with S. 196 of the Criminal Code and have provided X's mother with written notification of the authorization of the interception."

A few comments:

Doctor Smith acknowledged in cross-examination that his interview with the mother in these circumstances was inappropriate but told the Inquiry that he had been asked to attend the meeting by Deputy Chief Coroner Dr. James Cairns;

In fairness to Dr. Cairns, by now we are well aware that just because Dr. Smith said this under oath does not mean that this is true. (We don't have Dr. Cairns side of the story);

However it is worth pointing out that this may not be an isolated incident in Ontario.

An earlier posting in the context of "Tiffani's case" contained a note written by a prosecutor which read: "Our file contains... a lot of information involving the initial coroner's investigation, including videotaped statements from both accused taken by the Regional Coroner Dr. (Benoit) Bechard and the police without caution, warning, or right to counsel."

(Part Ten: Interrogation of an innocent woman: Backing up Dr. Smith's opinion at all costs; Jan. 22, 2008);

Harold Levy...hlevy15@gmail.com;