Big Game: Part Three: Expert Evidence; The Judge As Gatekeeper;

If, in fact, the criminal justice system is little more than a "big game" in the minds of players such as Dr. Charles Smith, what must judges do to ensure there is an element of fair play?

This Bloggist's view is that the judge has to be the ultimate protector of both the accused and the integrity of the criminal justice system when it comes to so-called "expert" evidence.

It is therefore somewhat disheartening to learn from Patrick LeSage, former Chief Justice of the Superior Court of Ontario, that judges in Ontario rarely intervene in the expert witness qualification process.

Here is his explanation:

"We don't question authority enough in some occasions.

So somebody comes in as an expert, and I'm going to say that's a word I always
avoided with a -- with a jury.

I didn't refer to them as experts.

(I) referred to them -- to people who, because of their training and experience, were permitted to give an opinion, because I think even using the word expert is --
is already cloaking them with -- with a great authority, which maybe they ought not have.

Did I -- did I, or -- question the expertise sufficiently?

Did defence counsel, or Crown counsel as the case might be, question the expertise, the basis, the underpinnings of it as much as we ought to have?

In many cases, no, we didn't.

The question you ask is in part who's response -- who is responsible to see that the expertise is questioned, challenged, assessed -- accurately and thoroughly assessed, before the evidence is -- is permitted to be -- to be given.

And it -- that -- that's -- I've always found that a difficult issue, because we
have an adversary system, and we believe quite strongly in our adversary system, maybe too strongly, I'm not sure.

And as such, I tended as a judge to more like a sphinx than a -- than an activist, and I tended to sit back and allow the responsibility for the determination of the question which I'm going to have to determine, but the -- the -- providing the -- the information upon which I was to make that decision, I really left to counsel.


And if counsel didn't raise it, I probably said well it's the adversary system, I'm not the advocate for either the Crown or the defence, the plaintiff or defendant, and, so to what extent do I become the advocate, or the defender, of the qualifications of this particular witness.

I think it's fair to say, however, that there is a -- well, it's already been said, that there's a great responsibility on the adjudicator to make an informed decision, and how do you make an informed decision if the evidence has not been adduced before you?

I find that a bit of a conundrum.

Should I launch into my own questioning and inquiry?

I don't know that answer to that question.

I -- my -- by nature, because of I always believed in -- more in the passivity of a judge, I probably often didn't inquire deeply enough into the expertise.

But unquestionably, we do cloak the expert, the opinion giver, with an authority that is very often not justified."

LeSage candidly told lawyer Jeffrey Manishen that, "I regret to say that I have
probably have only rejected maybe a half a dozen proffered experts".

Asked why he rejected the evidence in those cases, LeSage replied:

And -- and what test did I use? You know, I'm not even sure what test I used.

But I -- I probably -- I probably determined they didn't have a clue about what it is that they were supposed to be testifying about.

Or they had -- I mean they had no basis. shouldn't say they didn't have a -- they had no basis upon which to come to their conclusion.

And it's -- it's -- you often see it in the -- I won't say often, you sometimes see it in the role of reconstruction, highway reconstruction issues.

You know, it's just -- it's just -- somebody's pet theory -- that's nothing more.

But I've also rejected it in matters of art experts, and I can't remember what -- what else.

But I -- although I probably fell into it."

To this humble Bloggist, Justice Lesage's exlanation covers only one half of the story.

The other half is that some judges, like some other actors in the criminal justice and some journalists, bought into the myth of the great, reliable forensic pediatric pathologist Dr. Charles Randal Smith, and failed to do their job.

I discussed a prime example of this phenomena in an earlier posting, entitled: "Smith's credibility boosted in courtroom, Mullins-Johnson's lawyers claim":


"Lawyers for William Mullins-Johnson claim in a factum filed in the Ontario Court of Appeal that Dr. Charles Smith's credibility as boosted not only by himself and other witnesses but by the prosecutor and the trial judge," the Blog began.

"Dr. Smith’s appearance at the trial undoubtedly made a powerful impression on the jury, and it was his opinion that enabled the jury to conclude that there was physical evidence of Valin’s murder having occurred while she was being sodomized," it continued.

Firstly, before Dr. Smith was called, the Crown asked Dr. (Bhubendra) Rasaiah (the pathologist who presided over Valin's autopsy: director of pathology at the General Hospital in Sault Ste. Marie) about him:

Q. And who is [Dr. Charles Smith]?

A. Doctor Charles Smith is the professor of pediatric pathology, and he’s a nationally known figure on forensic pathology.

Q. Okay Doctor, thank you.

During his presentation of his resume to the jury, Dr. Smith was asked:
Q. Sir, how many people do the specific type of work that you do?

A. At the hospital do you mean?

Q. At the hospital or perhaps throughout Canada.

A. Okay. At the hospital there are, there are three of us.

I do the majority of the work and if I’m not there someone has to stand in my place, so, I do that.

The pediatric forensic pathology unit is unique.

We are not aware or the Chief Coroner is not aware that there is in existence anywhere in North America such a unit.

So because of that I probably do a little bit more of this kind of work than anyone else in the country. (emphasis added)

In his closing, the Crown summarized Dr. Smith’s seemingly impeccable credentials:

You look at Doctor Smith. Who is Doctor Smith?

Well, you saw him on the stand.

Of all of them, I mean, you take a look at this guy’s curriculum vitae, that’s just a fancy way of saying all his qualifications, and you see what that fellow has done and you see the type of things that he’s dealt with, and he tells you over here that, you know, he deals now with pediatrics and Sick Children’s Hospital, and the types of cases he does and the number of it he does, and he does that exclusively dealing with children, and you see the type of qualifications he has but, how did he get involved?

He got involved because there’s a program called SCAN, Suspicious Child Abuse and Neglect.

And Rasaiah sends that down to him because he sees suspicious child abuse.

So he sends that down to that SCAN team, and they send it to somebody there and it’s a Doctor (Marcellina) Mian, and because the child is dead they call in Doctor Smith.

And that’s what he does, and that’s how he gets involved.

In the midst of giving his damning opinion about the recent injury to Valin’s rectum, Dr. Smith claimed that he was “trying to be a little conservative or a little cautious here.”

He made similar claims elsewhere in his testimony when, in fact, his opinion was far more radical than that of any of the other experts.

But appearances can be deceptive, and the Crown felt able to present him to the jury in his closing as a knowledgeable person, a down to earth person that was able to explain things and a person that knew and was pretty fair about answering questions...

The trial judge made comments during Dr. Smith’s evidence that made it clear that he had been impressed by Dr. Smith’s presentation.

Thus, in response to an objection by defence counsel to a question put by the Crown to Dr. Smith, the trial judge said:

THE COURT: I sense this witness exercising himself considerably to be objective and to be professional and I do not have any concern about the form of the question in the context of the evidence I have heard so far. But thank you, Mr. (TG) O’Hara (Mullins-Johnson's trial lawyer).

At the conclusion of Dr. Smith’s testimony, the trial judge said:

THE COURT: Doctor, I believe firmly in the adversarial system so I am not going to interfere with it except to say that I thank you for coming. I know you are busy, I know there were problems - -


It was unfortunate that Dr. Smith’s credibility was boosted in these ways..."

(End of portion from factum);

William Mullins-Johnson was wrongly convicted of first-degree murder and sentenced to life imprisonment for a sexual assault and murder which never occurred.

There are important lessons here for both judges and prosecutors.

Harold Levy; hlevy15@gmail.com;

"Big Game" Part Two: A Mere Pawn?

THE PAWN (♙♟) IS THE WEAKEST AND MOST NUMEROUS PIECE IN THE GAME OF CHESS, REPRESENTING INFANTRY, OR MORE PARTICULARLY ARMED PEASANTS OR PIKEMEN.

WIKIPEDIA DEFINITION;

If Dr. Charles Smith regarded himself as a player in a "big game" the next question becomes, well, what position was he playing?

Smith's answer to a question posed by Commission Counsel Linda Rothstein was, "I kind of felt like a pawn in a chess game."

Wikipedia defines a pawn as, "the weakest and most numerous piece in the game of chess, representing infantry, or more particularly armed peasants or pikemen."

Dr. Smith, who's penchant for being unable to accept responsibility for his actions and to point his finger at others, is portraying himself as a mere piece on the board who is controlled by more powerful players.

I personally find this hard to swallow for several reasons;

First, as previously noted, after Dr. M.J. Phillips, his superior in the Pathology Department at the Hospital for Sick Children in Toronto came up with the idea of establishing a forensic pediatric pathology unit at the hospital, it was Dr. Smith who actually got the paper work in place and got the unit off the ground. (See earlier posting: "The rise of Dr. Charles Smith: Two basic questions; Feb. 11, 2008);

This would have involved budgeting, planning, coordination and knowledge of the workings of the hospital and of government;

It was not what you would have expected from a mere pawn.

Secondly, Dr. Smith oozed a sense of his own power;

This was extremely evident to me when I interviewed him for a story on several complaints that had been made against him to the Ontario College of Physicians and Surgeons;

"Dr. Smith also told the Star that he found it ironic that while he was being pilloried at home, "Here at the American Academy of Forensic Sciences people are coming up to me getting my opinion on cases because they view me as one of the world's experts," the story said.

Lastly, unlike helpless pawns on the board, Dr. Smith was well-connected.

Indeed, he boasts in a note to former chief coroner Dr. James Young, that he is supported by the province's Solicitor General of the day - and he had an open door to Dr. Young and other senior officials in the Chief Coroner's office.

Mere pawns don't consort with kings.

Dr. Smith would not agree with lawyer Peter Wardle's suggestion that, "(if) there was a game and if you were a player, you certainly were not a pawn, Dr. Smith. You were one of the most important pieces on the board."

"That's your view. That's -- that has never been my view. And at this point in time, I don't know how I could -- how I could reconsider, but certainly, at the time that this occurred and on previous occasions, your view and mine of my role are -- are not synoptic," he replied.

Harold Levy; hlevy15@gmail.com

It Was All A Big Game To Dr. Smith: Part One;

Dr. Charles Smith does not deny that he may have told a young girl present in court that the criminal justice system was "all a big game".

That is evident from his evidence at the Goudge Inquiry under cross-examination by by lawyer Peter Wardle who represents six families or caregivers affected by his opinions.

Here is the transcript: (Jan. 31, 2007)

MR. PETER WARDLE: And this is the cross-examination by Ms. (Cindy) Wasser, and do you recall that Ms. Wasser acted for one (1) of the accused in that case?

DR. CHARLES SMITH: Yes, yes.

MR. PETER WARDLE: And it begins:
"Doctor, yesterday while you were in
Court, did you notice a very young girl
sitting in the Court during the day?

A: There were two (2) or three (3)
that were in here during the course of
the day.

Q: And one (1) with long brown hair in
a gray suit, did you notice her?"
There was an objection, and then Ms. Wasser says:
"Did you approach the young lady after Court in the hallway?

A: I spoke to a student who was
sitting on the north side of the aisle
as I was leaving, yes.

Q: And this was a girl with long brown
hair?

A: Could be.

Q: And what did you say to her?

A: I don't remember.

Q: Did you ask her if she had enjoyed
the day?

A: I could have.

Q: And did she respond that she found
it was interesting?

A: I don't remember the conversation.
She should have.

Q: --"

DR. CHARLES SMITH: Could have.

MR. PETER WARDLE: "She could have," I'm sorry.

DR. CHARLES SMITH: Mm-hm.

MR. PETER WARDLE: "Q: Did you then say to her that you
found that this was all a big game?

A: I might have; I have no idea.

Q: You might have said that?

A: I might have".

Dr. Smith also acknowledged under cross-examination by Wardle that he viewed himself as playing on the prosecution's side in this big game, as the following portions of the transcript makes clear:

MR. PETER WARDLE: We had an interchange 11 yesterday, sir, at the beginning of examination, and I asked you some questions about "the chess game" of the
Judicial System, do you recall that?

DR. CHARLES SMITH: Yes.

MR. PETER WARDLE: And this is what you said to me at one (1) point: "Do you recall saying to us that on Monday, that at the beginning you thought your role was to support the Crown?" This is at page 192 of the transcript from
yesterday, by the way.

"Dr. Smith: Yes, yes, that's certainly
in the '90's was the -- was the
impression that I had, yes.

Q: As -- and as I took down your
evidence you said that later on you
understood that your role was to be
more impartial, that you were poor in
executing.

A: Yes, I believe that's correct.

Q: Do you agree, in retrospect, from
some of the admissions you've made this
week that you continued throughout to
take on that role of supporting the
Crown's case?

A: Yes, I -- I recognize that I have
made that error."

Sadly, by his own admission, Smith's determination to help the Crown the game affected the manner in which he presented his evidence in Sharon's case - where he tenaciously advanced his position that the child died as a result of stab wounds - as opposed to dog bites.

MR. PETER WARDLE: Do you agree now that our role in this case; your definitive opinion at the beginning; your definitive opinion to the police; your definitive opinion after the defence began raising the dog theory, and your definitive evidence at the preliminary inquiry.

Do you recognize that this was one of those cases where, as you told us yesterday, you -- you made that error of continuing throughout to take on the role of supporting the Crown's case?

DR. CHARLES SMITH: Once the -- once the issue -- I -- I recognize that my testimony in Court was -- was concrete. I -- I don't know how else to express
the fact that I recognize that error nor do I know how better I can explain what may have been the basis of that mistake.

I can hardly imagine how Sharon's mother and the other families and caregivers affected by Dr. Smith must have felt to learn that the man who appeared on the witness stand to be so professorial, neutral and disinterested saw his role as helping convict them and put them in jail.

It may have been a big game to Dr.Smith, but to them - good people who were mourning the loss of beloved children - the stakes included prison, loss of other children to the authorities, humiliation, and pariah status in their communities.

Out of fairness to Smith, he may not have been the only one who failed to understand his role in the criminal justice system - prosecutors were at fault as well.

As the Supreme Court of Canada ruled in the landmark Boucher case:

"It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.

Counsel have a duty to see that all available legal proof of the facts is presented: it should be clone firmly and pressed to its legitimate strength but it must also be done fairly.

The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.

It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the just?ness of judicial proceedings."

To this Blogster it appears that even as the evidence of Smith's incompetence kept mounting, the province's prosecutors kept calling him up to the plate time after time to go to bat for them

Something is very wrong with that picture.

Next posting: It was all a big game for Dr. Smith: Part Two; Was he a mere pawn as he claims?

Harold Levy...hlevy15@gmail.com;