IN CONCLUSION, DURING THE PERIOD UNDER REVIEW, THE VERY PERSON WHO HAD RESPONSIBILITY FOR OVERSIGHT WITH RESPECT TO THE ACTIVITIES OF THE ONTARIO PEDIATRIC FORENSIC PATHOLOGY UNIT, AND DR. SMITH IN PARTICULAR, WAS THE PERSON RESPONSIBLE FOR DEALING WITH COMPLAINTS FROM THE PUBLIC ABOUT BOTH CORONERS AND PATHOLOGISTS.
DR. YOUNG LACKED THE TOOLS BOTH TO EXERCISE EFFECTIVE OVERSIGHT AND TO RESPOND APPROPRIATELY TO COMPLAINTS.
FROM CLOSING SUBMISSIONS: THE AFFECTED FAMILIES GROUP;
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Some extremely interesting written closing submissions have been filed with the Goudge Inquiry by lawyers representing "The Affected Families Group."
This is a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001; The lawyers are Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick.
The group argues that complaints made by parents or caregivers who felt they had been unfairly treated during the death investigation process fell on deaf ears because there was no independent complaints process;
"The Coroners Act itself does not contain any process by which complaints about the conduct of a coroner or pathologist acting under the Coroners Act are to be dealt with," this portion of the Group's submissions begins.
"Following the abolishment of the Coroner’s Council in 1998, any complaint about the conduct of a coroner or pathologist appears to have been dealt with by Dr. Young, in his capacity as Chief Coroner of Ontario," it continues.
"According to (Former Chief Coroner) Dr. (James) Young’s letter to the College of Physicians and Surgeons of Ontario dated April 10, 2002:
"I am responsible for bringing the policies and procedures to the attention of all those engaged in coroners’ work and, when there has been a breach of these policies and procedures, I communicate directly to the coroners and their agents."
There does not appear to have been any formal complaints process ever set up during Dr. Young’s tenure as Chief Coroner.
Instead, he appears to have assumed that he had an overriding supervisory authority under the Act to personally review complaints, investigate and respond.
The inadequacy of this process is amply demonstrated by the Nicholas case.
Mr. Gagnon initially complained to the Coroner’s Council on February 17, 1999 regarding Dr. Smith.
The complaint outlined a number of areas of concern regarding Dr. Smith’s conduct in extensive detail, including very specific criticisms about his pathologic findings;
Dr. Young’s reply dated May 6, 1999 acknowledged that many of the issues raised by Mr. Gagnon were “essential to the practice of forensic pathology.”
In addition, it provided Mr. Gagnon with a copy of the Forensic Pathology Pitfalls Memorandum which had recently been prepared by The Ontario Chief Coroner's Office;
However, on the critical allegations made by Mr. Gagnon regarding Dr. Smith (relating to competence, lack of expertise and bias), Dr. Young’s response was as follows: Experts must be allowed their individual opinions as this is what makes them experts. Their opinion is based on training and experiences. The question, is therefore, whether or not their opinion falls within a reasonable range given the facts of the case.
On March 6, 2000, Mr. Gagnon filed a complaint with the Solicitor General regarding Dr. Cairns’ conduct in the investigation into Nicholas’ death.
This complaint is particularly important in that it raised a number of questions about systemic issues.
In particular, Mr. Gagnon alleged that Dr. Cairns’ “quest to eradicate child abuse in Ontario had clouded his judgment and impaired the objectivity and credibility of the Ontario Chief Coroner's Office;"
The Solicitor General’s reply to Mr. Gagnon’s letter dated April 13, 2000 was prepared by Dr. Young.
That letter also repeated that “the opinion Dr. Smith came to was within a reasonable range given the facts of the case”.
The Ombudsman of Ontario, in its response to Mr. Gagnon dated September 24, 2001, recommended that the Solicitor General considered establishing an independent complaint handing body with special expertise to review complaints and ensure the accountability of the coroner system.
No such mechanism has ever been established.
In conclusion, during the period under review, the very person who had responsibility for oversight with respect to the activities of the Ontario Pediatric Forensic Pathology Unit, and Dr. Smith in particular, was the person responsible for dealing with complaints from the public about both coroners and pathologists.
Dr. Young lacked the tools both to exercise effective oversight and to respond appropriately to complaints.
In addition, as will be dealt with below, Dr. Young and the Ontario Chief Coroner's Office became closely identified with Dr. Smith and his work and had a built-in disincentive to provide objective and effective responses to complaints from the public.
Harold Levy...hlevy15@gmail.com;
Showing posts with label college. Show all posts
Showing posts with label college. Show all posts
Tuesday, April 1, 2008
Saturday, March 1, 2008
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;
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;
Up-Date: Alarm Bells; Part One; Mann V. Young; An Evidentiary Conflict;
"MR. MARK SANDLER: AND ON NOVEMBER 29TH, 2007, AT PAGE 171 OF THE TRANSCRIPT, MR. SANDLER ASKED DR. YOUNG AS FOLLOWS: "NOW, YOU'VE INDICATED TO THE COMMISSIONER THAT YOU [DR. YOUNG] WERE UNAWARE OF THESE REASONS FOR JUDGMENT AND DID NOT READ THEM BACK IN 1991, AND INDEED, HAD NOT READ THEM UNTIL THIS INQUIRY COMMENCED, IS THAT RIGHT?
DR. YOUNG: THAT'S RIGHT; SADLY BUT CORRECT."
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MR. ROBERT CENTA; HOW DO YOU REACT TO DR. YOUNG'S TESTIMONY?
MS. MICHELE MANN: I DON'T BELIEVE IT'S ACCURATE AT ALL.
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The Goudge Inquiry has heard conflicting evidence as to whether then Chief Coroner James Young was aware of a 1991 decision in Amber's case in which Judge Patrick Dunn severely criticized Dr. Charles Smith's opinion in the case.
Dr. Young testified that he was unaware of the decision when it was issued in 1991 and did not read the reasons until the inquiry commenced.
Ms. Mann, an investigator for the College of Physicians and Surgeons of Ontario told the Inquiry that she informed Dr. Young about the decision at a one-on-one meeting held in his office in the Coroner's building in Toronto on February 14, 1997.to
The issue is crucial as Dr. Young has testified that he regarded the Amber case as "very serious" and that, in retrospect, "that information would have been "very useful".
It is also critical because one of the nagging questions at the Inquiry has been how Dr. Smith was able to continue performing his harmful work for the Coroner's office for so many years.
In an attempt to resolve this conflict, Dr. Young returned to the Inquiry on February 8, 2008, for further questioning.
For the assistance of our readers, I will lay out Ms. Mann's testimony - followed by Dr. Young's further evidence (February 8) on the issue.
Evidence of Ms. Michelle Mann on the issue:
MR. ROBERT CENTA: And what did you do to try and answer the questions that DM (the babysitter's father) had with respect to -- Dr. Young?
MS. MICHELE MANN: Well, I had reviewed the entire file and all the information contained in it and had four (4) -- I believe four (4) questions that were of concern; that DM had.
It was his questions that he had.
He was concerned with respect to Dr. Young's involvement in this matter.
So I planned a meeting with Dr. Young in order to discuss these four (4) issues.
MR. ROBERT CENTA: If you turn to Tab 18
20 in your binder, PFP152788, are these the notes of your meeting with Dr. Young?
MS. MICHELE MANN: Yes, they are.
MR. ROBERT CENTA: And it indicates that you met with him on February the 14th, 1997?
MS. MICHELE MANN: Correct.
MR. ROBERT CENTA: Had you met with Dr. Young prior to this occasion?
MS. MICHELE MANN: No, not in a one-on- one meeting with him. No. I may have seen him at the College occasionally but...
MR. ROBERT CENTA: Had you ever met with (the) Chief Coroner of Ontario as part of an investigation before?
MS. MICHELE MANN: Never.
MR. ROBERT CENTA: Where did you meet him?
MS. MICHELE MANN: At his office in the Coroner's building.
MR. ROBERT CENTA: Was anyone else present during the meeting?
MS. MICHELE MANN: No.
MR. ROBERT CENTA: Approximately how long did the meeting last?
MS. MICHELE MANN: It's hard to recall this long ago, but I would say it was not a brief meeting. I'd say roughly about forty-five (45) minutes, half (1/2) an hour, forty-five (45) minutes.
MR. ROBERT CENTA: And --
MS. MICHELE MANN: Possibly even as much as an hour. I don't think quite as long as an hour.
MR. ROBERT CENTA: What did you tell Dr. Young was the purpose of your meeting with him?
MS. MICHELE MANN: I told him that there were some questions that the complainant had about how his -- Dr. Smith's conduct had been during the -- the -- the investigation of Amber's death.
And when I initially met with him then I reviewed with him the -- the fact that this family had practically bankrupted themselves in efforts to defend their daughter; that several witnesses had been called from various locations around the world to testify for the defence, and that these opinions of these witnesses had been completely different from what Dr. Smith's findings had been and his analysis of the case.
And I also discussed with Dr. Young the -- Judge Dunn -- Justice Dunn's decision which had also been very critical of the actions of Dr. Smith in the investigation of Amber's death.
So all of these issues were discussed with him upfront as a means of putting some context into the meeting before these questions, contained on this document, were actually put to him.
MR. ROBERT CENTA: Other than the questions and the answers that you've recorded in your note, do you recall anything -- anything else that Dr. Young said to you during that meeting?
MS. MICHELE MANN: I remember that he felt very strongly that SM had killed this child, and I remember being surprised at that comment.
It was a very strong assertion that he believed she'd done it, and I was taken a little bit aback by that, given the Judge's decision.
MR. ROBERT CENTA: You indicated that you had referenced Justice Dunn's lengthy decision in your -- to Dr. Young?
MS. MICHELE MANN: Yes, that's correct.
MR. ROBERT CENTA: Do you know whether or not Dr. Young had read Justice Dunn's decision at the time you met with him?
MS. MICHELE MANN: I don't know if he'd read it.
MR. ROBERT CENTA: Was he aware of the fact of the decision when you met with him?
MS. MICHELE MANN: He didn't certainly seem surprised by any of the information I gave him. He didn't ask any further probative questions of me. I certainly got the impression that he -- this was not news to him.
MR. ROBERT CENTA: Did he ask you for a copy of the judgment during your meeting?
MS. MICHELE MANN: No, he didn't.
MR. ROBERT CENTA: Dr. Young was asked some questions about this when he testified on November 4 29th, 2007. And on November 29th, 2007, at page 171 of the transcript, Mr. Sandler asked Dr. Young as follows:
"Now, you've indicated to the Commissioner that you [Dr. Young] were unaware of these reasons for judgment and did not read them back in 1991, and
indeed, had not read them until this Inquiry commenced, is that right?
DR. YOUNG: That's right; sadly but correct.
MR. SANDLER: Apart from reading the actual reasons for judgment themselves, did you ever become aware of two (2) facts; first of all, that a number of expert witnesses had testified for the defence in this Timmins' case?
DR. YOUNG: No.
Was that fact ever --
DR. YOUNG: No.
MR. SANDLER: -- come to be known by you?
DR. YOUNG: No.
MR. SANDLER: And did the fact ever -- ever come to be known, by you, before this Inquiry, apart from the acquittal, that Justice Dunn had been very sharply
critical of the Hospital for Sick Children and the methodology that was used in this case?
DR. YOUNG: No, the opposite. I mean, as I said, I had the reassurance from Dr. Smith, in fact, that Justice Dunn had changed his mind but never heard critic -- never heard of criticism of either the Hospital for Sick Children r Dr. Smith."
Mrs. Mann, how do you react to Dr. Young's testimony?
MS. MICHELE MANN: I don't believe it's accurate at all.
MR. ROBERT CENTA: Why?
MS. MICHELE MANN: Because those facts were discussed with him in the context of my meeting with him in February of '97.
We had discussed the witness information, not in fine detail, but that there had been several witnesses -- recognized experts in the field of pathology -- who had disagreed strongly with Dr. Smith's position on the matter and that Justice's Dunn's decision had been quite critical. These were the main reasons why the -- the SM family came to the College in the first place. So he - -they were discussed with him.
Evidence of Dr. Young in response to Ms. Mann's testimony:
MR. MARK SANDLER: So you've been invited back to provide your comments on Ms. Mann's testimony?
DR. JAMES YOUNG: Yes.
MR. MARK SANDLER: What do you have to say about her recollection and your recollection of the February 1997 meeting?
DR. JAMES YOUNG: Thank you, Mr. Sandler.
The -- first of all, I'd like to put in context the -- the evidence that I gave the last time.
The review of this particular meeting was raised during my evidence.
I had not seen the -- any of the documents, nor discussed any of the matters with anyone prior to that, nor had I had any discussion about this meeting for ten (10) years.
So I was asked questions about it sitting here in the stand, the third or fourth day of my evidence.
So I had some recollection, but not as good a recollection.
This isn't the -- the best place to sit to get clarity of ideas and -- and refresh your memory, I can tell you.
I have had the benefit since then of -- of Ms. Mann's notes, and that certainly refreshes my memory of the -- the meeting considerably.
As soon as I saw the notes, the meeting became much more familiar to me.
The purpose of the meeting as far as I rem -- am concerned is that it was to answer the -- the issues surrounding the -- the three (3) main issues I would characterize as the ordering of the exhumation, the meetings that had taken place in Timmins, and the -- just a minute -- third issue that's in the notes is escaping me.
The ordering of the exh -- who orders the exhumation, the -- oh, the death certificate, the altering of the death certificate.
Those were the -- those were the issues that Ms. Mann was there to address.
Those are the issues that she wrote her notes on.
Those are the issues that she referred back in her correspondence to Mr. M about.
That was the purpose of the meeting, and that constituted the -- the overwhelming bulk of the -- of the meeting that took place.
The meeting was relatively brief. I -- I would estimate it to be probably somewhere around half an hour, but it was certainly less than an hour or three
quarters (3/4) of an hour, and it was -- it was not a lengthy meeting.
The main topic that we discussed at the meeting was, first of all, Ms. Mann was clearly not used to investigating anything to do with coroners or the Criminal Justice System.
She was an experienced investigator from the College of Physicians and Surgeons. I -- I knew her to be an investigator there, but she normally was looking into doctor's conduct and medical affairs.
This was an area that she was not familiar with, and we spent considerable amount of time discussing what a coroner was, what a pathologist was, how the Coroner's System fit or didn't fit into the Criminal Justice System, what everyone's roles were and what their responsibilities, and who did with -- what within the system.
We then went on and discussed the specifics of this particular case; the involvement of the SCAN Team, the release of the body, the subsequent call from Dr. Driver to me, my -- my role in -- in going to Timmins with -- with Dr. Smith.
And that part of the case, as I indicated in my earlier evidence, was the part of the case I was familiar with, and it was, in fact, my -- my last involvement with that particular case, so.
That was the -- during the course of that then we covered the issue of how death certificates are altered, and that they aren't altered by pathologists, they're altered by coroners; how exhumations are obtained.
And -- and I think the letter that she sent to -- both her notes and the letter that -- that she sent, fairly reflect that.
I believe this was the beginning of the conversation, and it was the -- the overwhelming bulk of the infor -- of -- of the conversation.
At some point during the conversation, I don't dispute the fact that there may have been discussion that -- that there was evidence that was contrary to Dr. -- Dr. Smith's.
I would have expected that there would -- that the evidence that was heard at the trial would be contrary to Dr. Smith because I'm not aware of any trial where other experts are called that agree with the Crown evidence. That defeats the point of -- of -- of calling evidence by the defence.
So the fact that people came and disagreed wouldn't surprise me and I'd certainly been told by Dr. Smith that -- that -- and I can't answer honestly whether it was one or two witnesses had come.
My impression was a couple of witnesses had been called and the main theme that they had explored was that there was no such thing as shaken baby and so they absolutely were in -- in contrast to what Dr. Smith had -- had given in evidence.
So, my belief at that time going into the meeting was that there had been evidence called that was contrary to Dr. Smith.
When I discussed it with Ms. Mann, I came out of the meeting believing exactly the
2 same thing, there had been evidence called that was contrary to Dr. Smith.
I have no recollection nor do I believe that any numbers that were used as to how many witnesses or that the discussion lasted very long -- the significant thing was, I didn't hear anything in that discussion that told me anything that I didn't already know and I already had formed the impression there was evidence contrary to Dr. Smith but she didn't say anything that -- that -- that gave me an idea that it was any greater.
On the issue of criticism of Dr. Smith, I was unaware, as I've given evidence, and I remain unaware until the preparation of -- for this hearing that there was this lengthy written decision by -- by Justice Dunn.
I would have been thinking that we were discussing, in fact, the acquittal of -- of Ms. M. from the point of view that there may have been a comment with some criticism because what I had been told by Dr. Smith was that there had been some criticism of him losing an x-ray.
And that had been an issue that we picked up and put into the pathologist's memo eventually.
So that very brief conversation with Ms. Mann, again, I went into the meeting knowing there had been criticism.
There was no specifics of criticisms mentioned.
The fact that there was criticism was mentioned.
And I came out of the meeting with the same impression I went into the meeting with. Yes, there had been criticism of Dr. Smith.
But I didn't come out of the meeting knowing there was a lengthy report from Justice Dunn; nor that the criticism was at the level; nor that there was criticism of the Hospital for Sick Children.
I -- in essence, we had a conversation where, in my mind, I didn't come out with any different impression than I did at the beginning of the conversation.
As for the -- as for the comment that I felt strongly that -- that Ms. M. was guilty, I have no recollection of saying that and it would be highly unusual and uncharacteristic of me to -- to phrase things in that particular way.
So I can't -- beyond -- beyond that, I don't know what I could say about that.
But, certainly, this -- this part of -- of any conversation was very much very protracted and not the substance of the meeting and took very, very little time and was ten (10) years ago and I note is not reflected in any way in any of the notes that were taken at the meeting.
MR. MARK SANDLER: Okay. Those are all the questions I have of Dr. Smith. Thank you.
It will now be up to Commissioner Goudge to sort out this serious conflict.
Harold Levy...hlevy15@gmail.com;
DR. YOUNG: THAT'S RIGHT; SADLY BUT CORRECT."
---------------------------------------------------------------------------------------
MR. ROBERT CENTA; HOW DO YOU REACT TO DR. YOUNG'S TESTIMONY?
MS. MICHELE MANN: I DON'T BELIEVE IT'S ACCURATE AT ALL.
---------------------------------------------------------------------------------------
The Goudge Inquiry has heard conflicting evidence as to whether then Chief Coroner James Young was aware of a 1991 decision in Amber's case in which Judge Patrick Dunn severely criticized Dr. Charles Smith's opinion in the case.
Dr. Young testified that he was unaware of the decision when it was issued in 1991 and did not read the reasons until the inquiry commenced.
Ms. Mann, an investigator for the College of Physicians and Surgeons of Ontario told the Inquiry that she informed Dr. Young about the decision at a one-on-one meeting held in his office in the Coroner's building in Toronto on February 14, 1997.to
The issue is crucial as Dr. Young has testified that he regarded the Amber case as "very serious" and that, in retrospect, "that information would have been "very useful".
It is also critical because one of the nagging questions at the Inquiry has been how Dr. Smith was able to continue performing his harmful work for the Coroner's office for so many years.
In an attempt to resolve this conflict, Dr. Young returned to the Inquiry on February 8, 2008, for further questioning.
For the assistance of our readers, I will lay out Ms. Mann's testimony - followed by Dr. Young's further evidence (February 8) on the issue.
Evidence of Ms. Michelle Mann on the issue:
MR. ROBERT CENTA: And what did you do to try and answer the questions that DM (the babysitter's father) had with respect to -- Dr. Young?
MS. MICHELE MANN: Well, I had reviewed the entire file and all the information contained in it and had four (4) -- I believe four (4) questions that were of concern; that DM had.
It was his questions that he had.
He was concerned with respect to Dr. Young's involvement in this matter.
So I planned a meeting with Dr. Young in order to discuss these four (4) issues.
MR. ROBERT CENTA: If you turn to Tab 18
20 in your binder, PFP152788, are these the notes of your meeting with Dr. Young?
MS. MICHELE MANN: Yes, they are.
MR. ROBERT CENTA: And it indicates that you met with him on February the 14th, 1997?
MS. MICHELE MANN: Correct.
MR. ROBERT CENTA: Had you met with Dr. Young prior to this occasion?
MS. MICHELE MANN: No, not in a one-on- one meeting with him. No. I may have seen him at the College occasionally but...
MR. ROBERT CENTA: Had you ever met with (the) Chief Coroner of Ontario as part of an investigation before?
MS. MICHELE MANN: Never.
MR. ROBERT CENTA: Where did you meet him?
MS. MICHELE MANN: At his office in the Coroner's building.
MR. ROBERT CENTA: Was anyone else present during the meeting?
MS. MICHELE MANN: No.
MR. ROBERT CENTA: Approximately how long did the meeting last?
MS. MICHELE MANN: It's hard to recall this long ago, but I would say it was not a brief meeting. I'd say roughly about forty-five (45) minutes, half (1/2) an hour, forty-five (45) minutes.
MR. ROBERT CENTA: And --
MS. MICHELE MANN: Possibly even as much as an hour. I don't think quite as long as an hour.
MR. ROBERT CENTA: What did you tell Dr. Young was the purpose of your meeting with him?
MS. MICHELE MANN: I told him that there were some questions that the complainant had about how his -- Dr. Smith's conduct had been during the -- the -- the investigation of Amber's death.
And when I initially met with him then I reviewed with him the -- the fact that this family had practically bankrupted themselves in efforts to defend their daughter; that several witnesses had been called from various locations around the world to testify for the defence, and that these opinions of these witnesses had been completely different from what Dr. Smith's findings had been and his analysis of the case.
And I also discussed with Dr. Young the -- Judge Dunn -- Justice Dunn's decision which had also been very critical of the actions of Dr. Smith in the investigation of Amber's death.
So all of these issues were discussed with him upfront as a means of putting some context into the meeting before these questions, contained on this document, were actually put to him.
MR. ROBERT CENTA: Other than the questions and the answers that you've recorded in your note, do you recall anything -- anything else that Dr. Young said to you during that meeting?
MS. MICHELE MANN: I remember that he felt very strongly that SM had killed this child, and I remember being surprised at that comment.
It was a very strong assertion that he believed she'd done it, and I was taken a little bit aback by that, given the Judge's decision.
MR. ROBERT CENTA: You indicated that you had referenced Justice Dunn's lengthy decision in your -- to Dr. Young?
MS. MICHELE MANN: Yes, that's correct.
MR. ROBERT CENTA: Do you know whether or not Dr. Young had read Justice Dunn's decision at the time you met with him?
MS. MICHELE MANN: I don't know if he'd read it.
MR. ROBERT CENTA: Was he aware of the fact of the decision when you met with him?
MS. MICHELE MANN: He didn't certainly seem surprised by any of the information I gave him. He didn't ask any further probative questions of me. I certainly got the impression that he -- this was not news to him.
MR. ROBERT CENTA: Did he ask you for a copy of the judgment during your meeting?
MS. MICHELE MANN: No, he didn't.
MR. ROBERT CENTA: Dr. Young was asked some questions about this when he testified on November 4 29th, 2007. And on November 29th, 2007, at page 171 of the transcript, Mr. Sandler asked Dr. Young as follows:
"Now, you've indicated to the Commissioner that you [Dr. Young] were unaware of these reasons for judgment and did not read them back in 1991, and
indeed, had not read them until this Inquiry commenced, is that right?
DR. YOUNG: That's right; sadly but correct.
MR. SANDLER: Apart from reading the actual reasons for judgment themselves, did you ever become aware of two (2) facts; first of all, that a number of expert witnesses had testified for the defence in this Timmins' case?
DR. YOUNG: No.
Was that fact ever --
DR. YOUNG: No.
MR. SANDLER: -- come to be known by you?
DR. YOUNG: No.
MR. SANDLER: And did the fact ever -- ever come to be known, by you, before this Inquiry, apart from the acquittal, that Justice Dunn had been very sharply
critical of the Hospital for Sick Children and the methodology that was used in this case?
DR. YOUNG: No, the opposite. I mean, as I said, I had the reassurance from Dr. Smith, in fact, that Justice Dunn had changed his mind but never heard critic -- never heard of criticism of either the Hospital for Sick Children r Dr. Smith."
Mrs. Mann, how do you react to Dr. Young's testimony?
MS. MICHELE MANN: I don't believe it's accurate at all.
MR. ROBERT CENTA: Why?
MS. MICHELE MANN: Because those facts were discussed with him in the context of my meeting with him in February of '97.
We had discussed the witness information, not in fine detail, but that there had been several witnesses -- recognized experts in the field of pathology -- who had disagreed strongly with Dr. Smith's position on the matter and that Justice's Dunn's decision had been quite critical. These were the main reasons why the -- the SM family came to the College in the first place. So he - -they were discussed with him.
Evidence of Dr. Young in response to Ms. Mann's testimony:
MR. MARK SANDLER: So you've been invited back to provide your comments on Ms. Mann's testimony?
DR. JAMES YOUNG: Yes.
MR. MARK SANDLER: What do you have to say about her recollection and your recollection of the February 1997 meeting?
DR. JAMES YOUNG: Thank you, Mr. Sandler.
The -- first of all, I'd like to put in context the -- the evidence that I gave the last time.
The review of this particular meeting was raised during my evidence.
I had not seen the -- any of the documents, nor discussed any of the matters with anyone prior to that, nor had I had any discussion about this meeting for ten (10) years.
So I was asked questions about it sitting here in the stand, the third or fourth day of my evidence.
So I had some recollection, but not as good a recollection.
This isn't the -- the best place to sit to get clarity of ideas and -- and refresh your memory, I can tell you.
I have had the benefit since then of -- of Ms. Mann's notes, and that certainly refreshes my memory of the -- the meeting considerably.
As soon as I saw the notes, the meeting became much more familiar to me.
The purpose of the meeting as far as I rem -- am concerned is that it was to answer the -- the issues surrounding the -- the three (3) main issues I would characterize as the ordering of the exhumation, the meetings that had taken place in Timmins, and the -- just a minute -- third issue that's in the notes is escaping me.
The ordering of the exh -- who orders the exhumation, the -- oh, the death certificate, the altering of the death certificate.
Those were the -- those were the issues that Ms. Mann was there to address.
Those are the issues that she wrote her notes on.
Those are the issues that she referred back in her correspondence to Mr. M about.
That was the purpose of the meeting, and that constituted the -- the overwhelming bulk of the -- of the meeting that took place.
The meeting was relatively brief. I -- I would estimate it to be probably somewhere around half an hour, but it was certainly less than an hour or three
quarters (3/4) of an hour, and it was -- it was not a lengthy meeting.
The main topic that we discussed at the meeting was, first of all, Ms. Mann was clearly not used to investigating anything to do with coroners or the Criminal Justice System.
She was an experienced investigator from the College of Physicians and Surgeons. I -- I knew her to be an investigator there, but she normally was looking into doctor's conduct and medical affairs.
This was an area that she was not familiar with, and we spent considerable amount of time discussing what a coroner was, what a pathologist was, how the Coroner's System fit or didn't fit into the Criminal Justice System, what everyone's roles were and what their responsibilities, and who did with -- what within the system.
We then went on and discussed the specifics of this particular case; the involvement of the SCAN Team, the release of the body, the subsequent call from Dr. Driver to me, my -- my role in -- in going to Timmins with -- with Dr. Smith.
And that part of the case, as I indicated in my earlier evidence, was the part of the case I was familiar with, and it was, in fact, my -- my last involvement with that particular case, so.
That was the -- during the course of that then we covered the issue of how death certificates are altered, and that they aren't altered by pathologists, they're altered by coroners; how exhumations are obtained.
And -- and I think the letter that she sent to -- both her notes and the letter that -- that she sent, fairly reflect that.
I believe this was the beginning of the conversation, and it was the -- the overwhelming bulk of the infor -- of -- of the conversation.
At some point during the conversation, I don't dispute the fact that there may have been discussion that -- that there was evidence that was contrary to Dr. -- Dr. Smith's.
I would have expected that there would -- that the evidence that was heard at the trial would be contrary to Dr. Smith because I'm not aware of any trial where other experts are called that agree with the Crown evidence. That defeats the point of -- of -- of calling evidence by the defence.
So the fact that people came and disagreed wouldn't surprise me and I'd certainly been told by Dr. Smith that -- that -- and I can't answer honestly whether it was one or two witnesses had come.
My impression was a couple of witnesses had been called and the main theme that they had explored was that there was no such thing as shaken baby and so they absolutely were in -- in contrast to what Dr. Smith had -- had given in evidence.
So, my belief at that time going into the meeting was that there had been evidence called that was contrary to Dr. Smith.
When I discussed it with Ms. Mann, I came out of the meeting believing exactly the
2 same thing, there had been evidence called that was contrary to Dr. Smith.
I have no recollection nor do I believe that any numbers that were used as to how many witnesses or that the discussion lasted very long -- the significant thing was, I didn't hear anything in that discussion that told me anything that I didn't already know and I already had formed the impression there was evidence contrary to Dr. Smith but she didn't say anything that -- that -- that gave me an idea that it was any greater.
On the issue of criticism of Dr. Smith, I was unaware, as I've given evidence, and I remain unaware until the preparation of -- for this hearing that there was this lengthy written decision by -- by Justice Dunn.
I would have been thinking that we were discussing, in fact, the acquittal of -- of Ms. M. from the point of view that there may have been a comment with some criticism because what I had been told by Dr. Smith was that there had been some criticism of him losing an x-ray.
And that had been an issue that we picked up and put into the pathologist's memo eventually.
So that very brief conversation with Ms. Mann, again, I went into the meeting knowing there had been criticism.
There was no specifics of criticisms mentioned.
The fact that there was criticism was mentioned.
And I came out of the meeting with the same impression I went into the meeting with. Yes, there had been criticism of Dr. Smith.
But I didn't come out of the meeting knowing there was a lengthy report from Justice Dunn; nor that the criticism was at the level; nor that there was criticism of the Hospital for Sick Children.
I -- in essence, we had a conversation where, in my mind, I didn't come out with any different impression than I did at the beginning of the conversation.
As for the -- as for the comment that I felt strongly that -- that Ms. M. was guilty, I have no recollection of saying that and it would be highly unusual and uncharacteristic of me to -- to phrase things in that particular way.
So I can't -- beyond -- beyond that, I don't know what I could say about that.
But, certainly, this -- this part of -- of any conversation was very much very protracted and not the substance of the meeting and took very, very little time and was ten (10) years ago and I note is not reflected in any way in any of the notes that were taken at the meeting.
MR. MARK SANDLER: Okay. Those are all the questions I have of Dr. Smith. Thank you.
It will now be up to Commissioner Goudge to sort out this serious conflict.
Harold Levy...hlevy15@gmail.com;
Monday, February 4, 2008
Pathology of Lies: Part Two: Smith The Intimidator; Battling Against Truth And Accountability;
One aspect of Dr. Charles Smith's pathology is a tendency to call others "liars" - especially when they are speaking the truth.
A classic example is the $4 million lawsuit he launched against the Canadian Broadcasting Corporation (CBC) in connection with the Fifth Estate documentary "Diagnosis Murder", which exposed the enormous harm Dr. Smith caused to innocent parents and caregivers within Ontario's criminal justice system.
Smith claimed a whopping $2 million in general damages for libel and $2 million punitive damages from the CBC in in his statement of claim, dated February 8, 2000, which was filed as an exhibit at the Goudge Inquiry.
The legal basis of the claim was that the broadcast was "malicious, false and libelous of him (Smith) personally and in the profession", and that it contained "false defamatory innuendoes".
More specifically, it alleged that the impugned aspects of the program would make people believe that:
"(B)ased on the plaintiff's involvement in the review of the three pediatric deaths described in the broadcast, the plaintiff in the performance of his duties as a pediatric forensic pathologist is incompetent."
How misleading!
"(T)hat the plaintiff is not qualified to perform he role of pediatric forensic pathologist;
How dare they suggest that!
"The plaintiff is primarily responsible for miscarriages of justice in the first and second pediatric deaths described in the Broadcast and perhaps is primarily responsible for a miscarriage of justice in the third pediatric death described in the broadcast!
Moi? How could that possibly be true?
As a result of these unwarranted calumnies, Smith went on to say that he "personally and in the way of his profession has been greatly injured in his credit and his reputation and has been brought into scandal, odium, hatred ridicule, contempt and has suffered damage."
Poor Charles...
(The CBC was unaware at the time Smith had asked former Chief Coroner, Dr. James Young, to ask the Ontario Government to help back his private lawsuit with public funds - and the government pulled through!);
(See earlier posting: Goudge Inquiry: Young tells inquiry he persuaded Ontario Government to help fund Dr. Charles Smith's lawsuit against the CBC);
Dr. Smith's lawsuit CBC never played out in a courtroom. (It's probably the last thing he have ever wanted)!
Instead he left it hanging over the CBC like a dark cloud - a stark message to the CBC and any other media that might be tempted to portray the truth about him, that there would be consequences.
This was Smith the intimidator.
The same Dr. Smith who allegedly tried to brow-beat an Ontario Provincial Police Officer who pulled him over for speeding by threatening to curtail his office's investigations of deaths of children in her area if she insisted on giving him a ticket.
See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police) letter; Was this the real Dr. Charles Smith; Parts one, two, three and four: December, 2007);
Smith also lashed out against Macleans Magazine in connection with a feature article by reporter Jane O'Hara which, as we have seen from the evidence called at the Goudge Inquiry, has also withstood the sands of time;
Information he gave O'Hara during the course of a lengthy interview about two elaborate conversations he purported to have with a judge has been proven, during the course of the Inquiry, to be an utter fabrication.
(To think that he had the nerve to sue O'Hara and Macleans for not telling the truth!)
It is mind-boggling.
If only he had taken the stories to heart - and learned from them - instead of blasting away defensively in the courts.
Things might have turned out very differently.
Dr. Smith also fought to keep the truth about him from emerging on three other fronts:
The courts; (His legal battle to prevent any one from suing him for any alleged misconduct on the basis that he was a witness and therefore enjoyed absolute witness immunity);
The College of Physicians and Surgeons of Ontario; (His efforts, backed up by the Chief Coroner, Dr. James Young, to persuade the College that it did not have the legal jurisdiction to hear complaints against pathologists for work done on behalf of the Chief Coroner's Office, and;
Public Opinion: His lawyer's efforts to play down suggestions that Dr. Smith was responsible for miscarriages of justice while sending out the message that he he was only responsible for mistakes and errors - a theme which Dr. Smith played out to the hilt in his testimony at the Inquiry.
First, the courts; For about five years, Dr. Smith fended off law-suits - with their potential to compell him to testify and produce documents - with his arcane legal argument that he could not be sued because of a common law doctrine intended encourage people testify in legal proceedings without fear of being sued.
The Ontario Court of Appeal finally opened a door to lawsuits from the people affected by his work, by ruling that the lawsuits were focused on his death investigations – and not on the testimony he later gave in court.
Second: The College; Smith, took the legal position, that the College had no jurisdiction to investigate complaints against him for the reasons referred to above.
We now know, from evidence called at the Goudge Inquiry, that Dr. James Young, the Chief Coroner of the day, attempted to get the College to decline to receive the complaints and forward them to his office where they would be dealt with internally.
Ultimately, the Ontario Health Professions Review Board ruled against Smith and Young, and the three complaints could finally proceed - but not without significant delay and aggravation for the complainants;
A scary thought: If Dr. Smith had managed to fend off both the courts and the College he would have been totally without any external public accountability
(While, at the same time, as we know from the evidence called at the Inquiry, he was not being subjected to internal accountability by either his superiors at the Hospital For Sick Children or in the Chief Coroner's office);
Lastly, the spin being put on Dr. Smith's work by his lawyers is illustrated by a legal document they filed at the outset of the Inquiry.
As I set out in an earlier posting: "Lawyers representing Dr. Charles Smith claim some media incorrectly reported that an independent review found he had "erred" in his work, engaged in "misconduct" - and that his actions had, "directly resulted in miscarriages of justice."
Smith's lawyers make these allegations in a "factum" filed at the Goudge Inquiry on Smith's application to have his own lawyers elicit his evidence "in chief."
The lawyers refer to a "background paper" released by Dr. Barry McLellan, Chief Coroner of Ontario at that time, which announced the result of an independent inquiry of criminally suspicious and homicide cases where Dr. Charles Smith conducted autopsies or provided opinions.
"The Office of the Chief Coroner revealed that in 20 of the 45 cases, the reviewers "had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both," the lawyers say in the factum.
"Moreover, the Chief Coroner advised that there were "restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of not criminally responsible, in 13 of those cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted."
But Smith's lawyers contend that, "despite the absence of any indication in the Backgrounder that Dr. Smith had "erred" in his work, or that he had engaged in any misconduct, subsequent media coverage of the "Backgrounder" described a "revelation of errors" in Dr. Smith's work."
They also allege that, "Moreover, because the Office of the Chief Coroner advised that some of the cases in which concerns were identified had resulted in convictions, the public perception created by the media coverage was that Dr. Smith's "errors" had directly resulted in miscarriages of justice."
The "factum" also alleges that media coverage of government announcements relating to the Inquiry were "highly prejudicial"..." referring to Dr. Smith himself as "an error prone pathologist", and questioning whether his work was "reckless" or "inept.";
(See earlier posting: Smith and the media: Part Six; Smith's lawyers criticize media;)
But no lawyer's tactic could ever contain the ugly truth's about Dr. Smith that were ultimately exposed in the courts, through the College, and at the Inquiry - all of which proved to be beyond Dr. Smith's control and influence.
We have learned that he was not only a liar - both inside and outside of court - but also that he did his best to prevent others from learning the truth, and to defy accountability.
A very calculating and intimidating man.
Harold Levy...hlevy15@gmail.com;
A classic example is the $4 million lawsuit he launched against the Canadian Broadcasting Corporation (CBC) in connection with the Fifth Estate documentary "Diagnosis Murder", which exposed the enormous harm Dr. Smith caused to innocent parents and caregivers within Ontario's criminal justice system.
Smith claimed a whopping $2 million in general damages for libel and $2 million punitive damages from the CBC in in his statement of claim, dated February 8, 2000, which was filed as an exhibit at the Goudge Inquiry.
The legal basis of the claim was that the broadcast was "malicious, false and libelous of him (Smith) personally and in the profession", and that it contained "false defamatory innuendoes".
More specifically, it alleged that the impugned aspects of the program would make people believe that:
"(B)ased on the plaintiff's involvement in the review of the three pediatric deaths described in the broadcast, the plaintiff in the performance of his duties as a pediatric forensic pathologist is incompetent."
How misleading!
"(T)hat the plaintiff is not qualified to perform he role of pediatric forensic pathologist;
How dare they suggest that!
"The plaintiff is primarily responsible for miscarriages of justice in the first and second pediatric deaths described in the Broadcast and perhaps is primarily responsible for a miscarriage of justice in the third pediatric death described in the broadcast!
Moi? How could that possibly be true?
As a result of these unwarranted calumnies, Smith went on to say that he "personally and in the way of his profession has been greatly injured in his credit and his reputation and has been brought into scandal, odium, hatred ridicule, contempt and has suffered damage."
Poor Charles...
(The CBC was unaware at the time Smith had asked former Chief Coroner, Dr. James Young, to ask the Ontario Government to help back his private lawsuit with public funds - and the government pulled through!);
(See earlier posting: Goudge Inquiry: Young tells inquiry he persuaded Ontario Government to help fund Dr. Charles Smith's lawsuit against the CBC);
Dr. Smith's lawsuit CBC never played out in a courtroom. (It's probably the last thing he have ever wanted)!
Instead he left it hanging over the CBC like a dark cloud - a stark message to the CBC and any other media that might be tempted to portray the truth about him, that there would be consequences.
This was Smith the intimidator.
The same Dr. Smith who allegedly tried to brow-beat an Ontario Provincial Police Officer who pulled him over for speeding by threatening to curtail his office's investigations of deaths of children in her area if she insisted on giving him a ticket.
See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police) letter; Was this the real Dr. Charles Smith; Parts one, two, three and four: December, 2007);
Smith also lashed out against Macleans Magazine in connection with a feature article by reporter Jane O'Hara which, as we have seen from the evidence called at the Goudge Inquiry, has also withstood the sands of time;
Information he gave O'Hara during the course of a lengthy interview about two elaborate conversations he purported to have with a judge has been proven, during the course of the Inquiry, to be an utter fabrication.
(To think that he had the nerve to sue O'Hara and Macleans for not telling the truth!)
It is mind-boggling.
If only he had taken the stories to heart - and learned from them - instead of blasting away defensively in the courts.
Things might have turned out very differently.
Dr. Smith also fought to keep the truth about him from emerging on three other fronts:
The courts; (His legal battle to prevent any one from suing him for any alleged misconduct on the basis that he was a witness and therefore enjoyed absolute witness immunity);
The College of Physicians and Surgeons of Ontario; (His efforts, backed up by the Chief Coroner, Dr. James Young, to persuade the College that it did not have the legal jurisdiction to hear complaints against pathologists for work done on behalf of the Chief Coroner's Office, and;
Public Opinion: His lawyer's efforts to play down suggestions that Dr. Smith was responsible for miscarriages of justice while sending out the message that he he was only responsible for mistakes and errors - a theme which Dr. Smith played out to the hilt in his testimony at the Inquiry.
First, the courts; For about five years, Dr. Smith fended off law-suits - with their potential to compell him to testify and produce documents - with his arcane legal argument that he could not be sued because of a common law doctrine intended encourage people testify in legal proceedings without fear of being sued.
The Ontario Court of Appeal finally opened a door to lawsuits from the people affected by his work, by ruling that the lawsuits were focused on his death investigations – and not on the testimony he later gave in court.
Second: The College; Smith, took the legal position, that the College had no jurisdiction to investigate complaints against him for the reasons referred to above.
We now know, from evidence called at the Goudge Inquiry, that Dr. James Young, the Chief Coroner of the day, attempted to get the College to decline to receive the complaints and forward them to his office where they would be dealt with internally.
Ultimately, the Ontario Health Professions Review Board ruled against Smith and Young, and the three complaints could finally proceed - but not without significant delay and aggravation for the complainants;
A scary thought: If Dr. Smith had managed to fend off both the courts and the College he would have been totally without any external public accountability
(While, at the same time, as we know from the evidence called at the Inquiry, he was not being subjected to internal accountability by either his superiors at the Hospital For Sick Children or in the Chief Coroner's office);
Lastly, the spin being put on Dr. Smith's work by his lawyers is illustrated by a legal document they filed at the outset of the Inquiry.
As I set out in an earlier posting: "Lawyers representing Dr. Charles Smith claim some media incorrectly reported that an independent review found he had "erred" in his work, engaged in "misconduct" - and that his actions had, "directly resulted in miscarriages of justice."
Smith's lawyers make these allegations in a "factum" filed at the Goudge Inquiry on Smith's application to have his own lawyers elicit his evidence "in chief."
The lawyers refer to a "background paper" released by Dr. Barry McLellan, Chief Coroner of Ontario at that time, which announced the result of an independent inquiry of criminally suspicious and homicide cases where Dr. Charles Smith conducted autopsies or provided opinions.
"The Office of the Chief Coroner revealed that in 20 of the 45 cases, the reviewers "had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both," the lawyers say in the factum.
"Moreover, the Chief Coroner advised that there were "restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of not criminally responsible, in 13 of those cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted."
But Smith's lawyers contend that, "despite the absence of any indication in the Backgrounder that Dr. Smith had "erred" in his work, or that he had engaged in any misconduct, subsequent media coverage of the "Backgrounder" described a "revelation of errors" in Dr. Smith's work."
They also allege that, "Moreover, because the Office of the Chief Coroner advised that some of the cases in which concerns were identified had resulted in convictions, the public perception created by the media coverage was that Dr. Smith's "errors" had directly resulted in miscarriages of justice."
The "factum" also alleges that media coverage of government announcements relating to the Inquiry were "highly prejudicial"..." referring to Dr. Smith himself as "an error prone pathologist", and questioning whether his work was "reckless" or "inept.";
(See earlier posting: Smith and the media: Part Six; Smith's lawyers criticize media;)
But no lawyer's tactic could ever contain the ugly truth's about Dr. Smith that were ultimately exposed in the courts, through the College, and at the Inquiry - all of which proved to be beyond Dr. Smith's control and influence.
We have learned that he was not only a liar - both inside and outside of court - but also that he did his best to prevent others from learning the truth, and to defy accountability.
A very calculating and intimidating man.
Harold Levy...hlevy15@gmail.com;
Saturday, February 2, 2008
A Mystery Solved:
I always wondered who was the rat who told the Saskatchewan College of Physicians and Surgeons that Charles Smith had been investigated and ultimately reprimanded by its Ontario counterpart;
That mystery has been solved.
I found out from documents filed last week at the Goudge Inquiry that the rat is me.
It seems that the College was surprised to learn Dr. Smith had been in trouble with his own governing body from a story I reported in the Toronto Star on Sept. 24, 2005 under the heading. "Shamed MD finds new job."
The story, filed as an exhibit, indicated that Smith had been formally "cautioned" after being investigated in three cases - and a discipline committee had found "disturbing deficiencies" in his work in each of the cases.
Just two days later the Saskatchewan College informed Ontario that, "There appears to be a significant discrepancy between the information that he (Dr. Smith) provided to us, and the information that was recently published in the Toronto Star.
Bryan Salte, The Saskatchewan College's Legal Counsel and Associate Registrar, also told Ontario that Smith went on to answer the following questions with "No" in his application form:
0: Have you been suspended, disqualified, censured, or had any disciplinary action taken against you as a member of any profession?
0: Have you ever been the subject of an inquiry or investigation by a medical licensing authority or hospital?
0: Are you aware of any complaint or charge pending against you by any medical licensing authority which might result in your being suspended, reprimanded or otherwise disciplined?
In the aftermath of this story, Smith was hauled up before a discipline panel where he later pleaded guilty to misleading the Saskatchewan College.
(An investigator from the Ontario College has alleged at the Goudge Inquiry that Smith provided misleading information in his written responses to the three complaints);
In short, Dr. Smith continued lying - right through to 2005 - even after he quietly slipped away from the Hospital For Sick Children several weeks after former Ontario Chief Coroner, Dr. Barry McLellan, announced the independent review of his work.
Now the question arises whether Dr. Smith was lying when he was responding to questions posed Friday by Ontario College of Physicians and Surgeons lawyer Carolyn Silver.
Here is Ms. Silver's cross-examination of Dr. Smith on the application:
"MS. CAROLYN SILVER: And when you applied to the Saskatchewan College you were asked several questions and you filled out a questionnaire, correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And one (1) of the questions you were asked was: "Have you ever been the subject of an inquiry or investigation by a medical licensing authority or a hospital?"
Correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And you answered, "no", to that question, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And on your application you signed a solemn declaration swearing that that information was true, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And I'm suggesting to you, Dr. Smith, that you knew, when you answered no to that question, that you had been investigated by the College on at least three (3) occasions, if not four (4), because you were investigated twice in one (1) of the cases. Isn't that true? Hadn't forgotten about the College investigations, had you?
DR. CHARLES SMITH: No. No, the -- I -- I misinterpreted the question. I put down an answer that, at the time, I thought was correct. I recognized it's misleading. I --
MS. CAROLYN SILVER: It's not misleading, it's untruthful, isn't it, Dr. Smith?
DR. CHARLES SMITH: The -- the answer was wrong, I acknowledge that. And I -- and I acknowledge it was wrong and it -- and it was misleading. But I remain firm, resolute, in my -- in my position that it was never an intentional mistake, though I recognize it was a serious mistake.
MS. CAROLYN SILVER: You know when you filled out this application in 2005, that you'd been the subject of at least three (3) investigations by the College, didn't you, Dr. Smith?
DR. CHARLES SMITH: I knew that the College had dealt with -- with complaints, yes; considered them, dismissed them --
MS. CAROLYN SILVER: You knew they were investigations, Dr. Smith. You have countless letters from the College asking you to respond --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- in the course of the investigation. So to be fair, Dr. Smith, didn't you know these were investigations by the College?
DR. CHARLES SMITH: Yes, but I -- I misunderstood, or misinterpreted the question. I recognize that was a error. I did -- I -- at the time I answered that, I had not given my mind to that issue. It was a mistake, I recognize it, I'm embarrassed by it. I -- I have -- I have admitted to it. But --
Ms. Silver then attempted to get an honest response to another of the Saskatchewan College's questions: The transcript reads:
MS. CAROLYN SILVER: You were also asked if you were suspended, disqualified or censured by any -- any action was taken against you. Do you see that? Have you ever been suspended, disqualified, censured or has any discipline action been taken against you as a member of any profession?"
DR. CHARLES SMITH: I -- I've been cautioned, is that -- is that --
MS. CAROLYN SILVER: Right. You didn't understand that was a censure?
(BRIEF PAUSE)
DR. CHARLES SMITH: No, I -- no. No, I'm not -- I would -- I would -- I -- no, no. I recognize it was a caution, it was serious. I respected the College, I submitted myself to the caution -- to the caution. I did not take it at all lightly. I believe I indicated that -- that I regarded it well with embarrassment as -- as an important educational exercise, and I explained that in fact though I was embarrassed by it, I had used it as a teaching point for others as had others. But I -- I don't know that I have ever linked the word censure and a caution as being the same thing. And -- and if -- if should have been linked, I am -- I am sorry. I didn't understand that and that would
me my mistake if they should be linked."
Towards the end of her cross-exmination, Silver attempted to engage Dr. Smith on his respect for the College - suggesting that a pattern of repeated lies does not exactly fit the definition of respect: Here is the transcript:
"MS. CAROLYN SILVER: -- and I'm suggesting to you that this completely untruthful and inaccurate answer that you gave to the College of Saskatchewan in 2005 when you told them you had never been the subject of an inquiry or an investigation by a medical licensing authority, was just one (1) of a pattern that had -- that you had of giving untruthful and inaccurate information to the regulatory body, and those are the examples that we've looked at. Isn't that true, Dr. Smith? It's just another example that continued into 2005?
DR. CHARLES SMITH: I'm sorry, your que - I -- I missed the first part of your question.
MS. CAROLYN SILVER: Wasn't -- you say you respect the regulatory --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- body --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- and I'm suggesting to you that that respect is not manifest, because you had a pattern which ran from 1992 and continued until 2005 with the Saskatchewan College of providing untruthful and inaccurate information to the regulatory body. Isn't that true, Dr. Smith?
DR. CHARLES SMITH: That's --
MS. CAROLYN SILVER: That occurred on many occasions.
DR. CHARLES SMITH: No. That's your view. It was never my intention to be disrespectful or to be misleading.
MS. CAROLYN SILVER: But you were untruthful and misleading on many occasions, intention or not, isn't that true?
DR. CHARLES SMITH: I recognize I made mistakes and I recognize before the -- and I -- I pleaded before the College of Physicians and Surgeons of Saskatchewan, that what I did was misleading. I recognize that. I accept that. I stand by that -- by
that statement.
MS. CAROLYN SILVER: Those are my questions. Thank you."
I know that reporters are supposed to be flies on the wall and detached from the story.
But that said, I am very pleased that this story was noticed by the medical authorities in Saskatchewan and triggered some consequences.
No wonder Dr. Smith described me in an email to former Chief Coroner Dr. James Young as, "Harold Levy (who is not my favourite journalist)";
That's the best compliment I could ever ask for.
Harold Levy...hlevy15@gmail.com;
That mystery has been solved.
I found out from documents filed last week at the Goudge Inquiry that the rat is me.
It seems that the College was surprised to learn Dr. Smith had been in trouble with his own governing body from a story I reported in the Toronto Star on Sept. 24, 2005 under the heading. "Shamed MD finds new job."
The story, filed as an exhibit, indicated that Smith had been formally "cautioned" after being investigated in three cases - and a discipline committee had found "disturbing deficiencies" in his work in each of the cases.
Just two days later the Saskatchewan College informed Ontario that, "There appears to be a significant discrepancy between the information that he (Dr. Smith) provided to us, and the information that was recently published in the Toronto Star.
Bryan Salte, The Saskatchewan College's Legal Counsel and Associate Registrar, also told Ontario that Smith went on to answer the following questions with "No" in his application form:
0: Have you been suspended, disqualified, censured, or had any disciplinary action taken against you as a member of any profession?
0: Have you ever been the subject of an inquiry or investigation by a medical licensing authority or hospital?
0: Are you aware of any complaint or charge pending against you by any medical licensing authority which might result in your being suspended, reprimanded or otherwise disciplined?
In the aftermath of this story, Smith was hauled up before a discipline panel where he later pleaded guilty to misleading the Saskatchewan College.
(An investigator from the Ontario College has alleged at the Goudge Inquiry that Smith provided misleading information in his written responses to the three complaints);
In short, Dr. Smith continued lying - right through to 2005 - even after he quietly slipped away from the Hospital For Sick Children several weeks after former Ontario Chief Coroner, Dr. Barry McLellan, announced the independent review of his work.
Now the question arises whether Dr. Smith was lying when he was responding to questions posed Friday by Ontario College of Physicians and Surgeons lawyer Carolyn Silver.
Here is Ms. Silver's cross-examination of Dr. Smith on the application:
"MS. CAROLYN SILVER: And when you applied to the Saskatchewan College you were asked several questions and you filled out a questionnaire, correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And one (1) of the questions you were asked was: "Have you ever been the subject of an inquiry or investigation by a medical licensing authority or a hospital?"
Correct?
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: And you answered, "no", to that question, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And on your application you signed a solemn declaration swearing that that information was true, correct?
DR. CHARLES SMITH: That's correct.
MS. CAROLYN SILVER: And I'm suggesting to you, Dr. Smith, that you knew, when you answered no to that question, that you had been investigated by the College on at least three (3) occasions, if not four (4), because you were investigated twice in one (1) of the cases. Isn't that true? Hadn't forgotten about the College investigations, had you?
DR. CHARLES SMITH: No. No, the -- I -- I misinterpreted the question. I put down an answer that, at the time, I thought was correct. I recognized it's misleading. I --
MS. CAROLYN SILVER: It's not misleading, it's untruthful, isn't it, Dr. Smith?
DR. CHARLES SMITH: The -- the answer was wrong, I acknowledge that. And I -- and I acknowledge it was wrong and it -- and it was misleading. But I remain firm, resolute, in my -- in my position that it was never an intentional mistake, though I recognize it was a serious mistake.
MS. CAROLYN SILVER: You know when you filled out this application in 2005, that you'd been the subject of at least three (3) investigations by the College, didn't you, Dr. Smith?
DR. CHARLES SMITH: I knew that the College had dealt with -- with complaints, yes; considered them, dismissed them --
MS. CAROLYN SILVER: You knew they were investigations, Dr. Smith. You have countless letters from the College asking you to respond --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- in the course of the investigation. So to be fair, Dr. Smith, didn't you know these were investigations by the College?
DR. CHARLES SMITH: Yes, but I -- I misunderstood, or misinterpreted the question. I recognize that was a error. I did -- I -- at the time I answered that, I had not given my mind to that issue. It was a mistake, I recognize it, I'm embarrassed by it. I -- I have -- I have admitted to it. But --
Ms. Silver then attempted to get an honest response to another of the Saskatchewan College's questions: The transcript reads:
MS. CAROLYN SILVER: You were also asked if you were suspended, disqualified or censured by any -- any action was taken against you. Do you see that? Have you ever been suspended, disqualified, censured or has any discipline action been taken against you as a member of any profession?"
DR. CHARLES SMITH: I -- I've been cautioned, is that -- is that --
MS. CAROLYN SILVER: Right. You didn't understand that was a censure?
(BRIEF PAUSE)
DR. CHARLES SMITH: No, I -- no. No, I'm not -- I would -- I would -- I -- no, no. I recognize it was a caution, it was serious. I respected the College, I submitted myself to the caution -- to the caution. I did not take it at all lightly. I believe I indicated that -- that I regarded it well with embarrassment as -- as an important educational exercise, and I explained that in fact though I was embarrassed by it, I had used it as a teaching point for others as had others. But I -- I don't know that I have ever linked the word censure and a caution as being the same thing. And -- and if -- if should have been linked, I am -- I am sorry. I didn't understand that and that would
me my mistake if they should be linked."
Towards the end of her cross-exmination, Silver attempted to engage Dr. Smith on his respect for the College - suggesting that a pattern of repeated lies does not exactly fit the definition of respect: Here is the transcript:
"MS. CAROLYN SILVER: -- and I'm suggesting to you that this completely untruthful and inaccurate answer that you gave to the College of Saskatchewan in 2005 when you told them you had never been the subject of an inquiry or an investigation by a medical licensing authority, was just one (1) of a pattern that had -- that you had of giving untruthful and inaccurate information to the regulatory body, and those are the examples that we've looked at. Isn't that true, Dr. Smith? It's just another example that continued into 2005?
DR. CHARLES SMITH: I'm sorry, your que - I -- I missed the first part of your question.
MS. CAROLYN SILVER: Wasn't -- you say you respect the regulatory --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- body --
DR. CHARLES SMITH: Yes.
MS. CAROLYN SILVER: -- and I'm suggesting to you that that respect is not manifest, because you had a pattern which ran from 1992 and continued until 2005 with the Saskatchewan College of providing untruthful and inaccurate information to the regulatory body. Isn't that true, Dr. Smith?
DR. CHARLES SMITH: That's --
MS. CAROLYN SILVER: That occurred on many occasions.
DR. CHARLES SMITH: No. That's your view. It was never my intention to be disrespectful or to be misleading.
MS. CAROLYN SILVER: But you were untruthful and misleading on many occasions, intention or not, isn't that true?
DR. CHARLES SMITH: I recognize I made mistakes and I recognize before the -- and I -- I pleaded before the College of Physicians and Surgeons of Saskatchewan, that what I did was misleading. I recognize that. I accept that. I stand by that -- by
that statement.
MS. CAROLYN SILVER: Those are my questions. Thank you."
I know that reporters are supposed to be flies on the wall and detached from the story.
But that said, I am very pleased that this story was noticed by the medical authorities in Saskatchewan and triggered some consequences.
No wonder Dr. Smith described me in an email to former Chief Coroner Dr. James Young as, "Harold Levy (who is not my favourite journalist)";
That's the best compliment I could ever ask for.
Harold Levy...hlevy15@gmail.com;
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