DR. CHARLES SMITH'S LEGACY; A NEW COLUMN BY ALAN SHANOFF IN THE TORONTO SUN;

Columnist Shanoff's latest column on the Smith debacle ran today under the heading "Expert witness reveals flaws in system," and the sub-heading, "Due to the incompetence of now disgraced pediatric pathologist Dr. Charles Smith numerous people were wrongly convicted and imprisoned."

"An appeal by a man convicted of shaking his boy to death in 1995 was launched last week. Children were wrongly taken from their parents. How did this happen?" the column began;

"In large part it's due to Smith having been qualified to give evidence as an expert witness in the field of pediatric forensic pathology at least 45 times," it continued;

"Based on the findings of the Justice Stephen Goudge Report, we know that allowing Smith to testify as an expert or accepting Smith's evidence as expert testimony was erroneous. We know that Smith had no training in forensic pathology.

We also know that in 1991 Justice Patrick Dunn acquitted a babysitter charged with manslaughter in the death of a 16- month-old child.

In the course of his reasons acquitting the babysitter Justice Dunn lowered the boom on Smith pointing out that Smith wasn't familiar with the scientific literature, failed to conduct a thorough investigation, gave unscientific evidence and was dogmatic in the giving of his evidence.

Yet, Smith was allowed to conduct autopsies, advise Crown attorneys, and testify in other suspicious death cases until 2001!

He was never confronted with Justice Dunn's critical findings. How could this have happened? Why weren't Justice Dunn's findings on Smith circulated and relied upon by others? Why was Smith repeatedly allowed to testify as an expert witness?

ALLOWED BY JUDGES

Let's start with the dozens of judges who allowed Smith to testify as an expert. Judges are the ultimate gatekeepers when it comes to allowing a witness to give opinion, as opposed to factual, evidence.

Only the judge can give the permission which allows experts to testify. It's fair to say that many judges failed as gatekeepers. They not only allowed Smith to testify as an expert but they failed to define the limits of Smith's so-called expertise.

There's plenty of blame to go around. Let's not forget the dozens of Crown attorneys who asked the judges to allow Smith to testify as an expert witness. It's also fair to say that many defence lawyers failed to properly question Smith's qualifications an expert witness.

This is admittedly a complex area but how do we explain such massive human error? Isn't there a network of defence lawyers who share information? Why didn't other defence lawyers use Justice Dunn's findings to attack Smith's expertise or credibility in other cases?

Would you believe that judges have adopted a rule of evidence making it extremely difficult to cross-examine or question a witness based on prior negative judicial comments or findings made about that witness?

It's true; judges are extremely reluctant to allow any witness, let alone an expert witness to be cross-examined on the basis of what was said about them in other cases.

PREVIOUSLY REJECTED

In a 1999 case the Ontario Court of Appeal stated that "it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case."

So even if others knew about Justice Dunn's findings, they could not use it to impeach Smith as an expert witness in subsequent cases. In other words, let's pretend Justice Dunn's findings were never made.

If we want to prevent some of the human error that leads to wrongful convictions surely we have to reject this counter-intuitive rule of evidence.

The fact that an expert witness was disbelieved in one case must be relevant in other cases. The fact that a police officer has been caught in a lie in one case must be relevant in other cases. It's common sense, isn't it?

I'm not suggesting that the expert or officer should never be allowed to testify again or that their evidence should never be believed. But surely the prior findings are relevant in subsequent cases and the witnesses should be required to satisfy the court why their evidence should now be believed.

So, in the end judges failed us in acting as gatekeepers to keep out Smith's so-called expert testimony and they failed us by adopting a rule that prevented defence lawyers from using Justice Dunn's findings to attack Smith's credibility and expertise.

We need to learn from our mistakes."

Harold Levy...hlevy15@gmail.com;

Part Nine: Eight: Gaurov's Father; A Third Shocking Revelation From Inquiry; Brother collapsed Shortly Before Gaurov's Death: Hereditory Factor?

"THE HISTORY STATES THAT HE (GAUROV'S BROTHER SAUROB)WAS PLAYING WHEN HE SUDDENLY FELL ON THE GROUND - APPARENTLY THE FATHER GAVE HIM SOMETHING, AND COMPRESSIONS AND MOUTH TO MOUTH. AND THEN THERE'S A SUGGESTION THERE MAY HAVE BEEN A SIMILAR EPISODE LAST YEAR;"

LAWYER JAMES LOCKYER TO COMMISSIONER STEPHEN GOUDGE DURING CROSS-EXAMINATION OF PROFESSOR HELEN WHITWELL;

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"BUT IF WE ASSUME FOR A MOMENT THAT JUST DAYS BEFORE GAUROV DIED HIS ONE (1) YEAR OLD BROTHER, SAUROB HAD BEEN THROUGH, WHAT COULD BE DESCRIBED AS A SIMILAR EXPERIENCE TO GAUROV, WOULD THAT SUGGEST THAT THERE MIGHT BE ANY KIND OF -- OF HEREDITARY PROBLEM WITHIN FAMILY?

DR. HELEN WHITWELL: "I DON'T THINK I CAN REALLY ANSWER THAT. IT MAY OR MAY NOT. I MEAN, WE -- WE JUST DON'T KNOW."

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LAWYER JAMES LOCKYER AND PROFESSOR HELEN WHITWELL;

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In an earlier posting I referred to the shocking disclosure from the Goudge Inquiry that Dinesh Kumar's lawyer's testified that he had not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

That decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN (Suspected Child Abuse And Neglect) team.

Two other shocking disclosures relating to Gaurov's case also emanated from the Inquiry;

The second - the subject of this post - was that Dr. Charles Smith had informed homicide investigators that both he, and Dr. Dirk Huyer, the head of the SCAN team at the Hospital for Sick Children In Toronto were both "struggling" to find criminality in the case - a far cry from the language in their official reports;

Now the third: It has been disclosed during the Goudge Inquiry that in March 1992, just a few days before Gaurov's death his brother Saurob, was seen at a walk-in clinic at the Hospital for Children for spells.

Lawyer James Lockyer told the Inquiry that he had "just obtained" Saurob's medical records through a request.

Lockyer said the the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed. Apparently the father gave him something, andC compressions and mouth to mouth. And then there's a suggestion there may have been a similar episode last year.

Lockyer began this portion of his cross-examination of Professor Helen Whitwell - the independent reviewer of Gaurov's case - by informing Commissioner Steven Goudge that, "Another document that we just obtained through a request is the medical records, or -- the medical records of Dinash's (phonetic) brother, Saurob.

And if we go to PFP302210 -- now it's -- it's the best we have so far, and we're trying to get a better copy of this document -- but if you look at this document, it's addressed to Dr. Rana, who was Saurob's -- and indeed still is -- Saurob's physician.

Saurob is now -- I think I'm right in saying -- seventeen (17) years old and, Mr. Commissioner, he -- he is with his parents, I'm glad to say.

Any event, it's a report from the Hospital for Sick Children.

If we go to the second page, you'll see this document.

I'm afraid you -- we don't know who it's from because you can't quite read it.

But if you look at this document on page 1 -- if you could show us page 1 again? There might a Dr. Bard, if there is such a doctor at the Hospital for Sick Children.

And you'll see -- and this is a matter of days before Gaurov's death.

If you could raise the page, give us the bottom of the page.

COMMISSIONER STEPHEN GOUDGE: Is there a date on it somewhere?

JAMES LOCKYER: Well, it's -- I think it's mark -- I'm right in saying we've worked it out as being March 1st, 1992. It might be March 11th or 21st.

it's -- it's -- there's a one (1) and we have reason to think it's March. And I think that becomes apparent.

CONTINUED BY MR. JAMES LOCKYER:

MR. JAMES LOCKYER: If you could give us the -- the -- to the bottom of this page, please.

Thank you. You'll see here that Saurob, in what's really just a matter of days before Gaurov's death, was seen in the walk-in clinic at the Hospital for Sick Children for these spells.

you see where I'm looking?

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: The history states -- and -- and we can probably invent some of the lines -- some of the words that are missing -- the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed.

Apparently the father gave him something, and compressions and mouth to mouth.

And then there's a suggestion there may have been a similar episode last year.

And then if we go to the -- over the page, and there's -- you'll see in the last paragraph: "Difficult to elicit exactly what the problem is. In a consideration of the description of this spell, we feel it's worthwhile to do..." And I'm -- I'm sort of translating, Mr. Commissioner, to some extent. "...a reassessment of the patient after an EEG has been done."

We also -- I can also tell you that Gaurov's father used to be an ambulance attendant back in his home country.

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: And so had familiarity with resuscitation and mouth-to-mouth techniques.

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: So if we -- and I appreciate this is a dreadful document, but it's all we've got at the moment, and as I say, we're trying to get a better copy of it.

But if we assume for a moment that just days before Gaurov died his one (1) year old brother, Saurob had been through, what could be described as a similar experience to Gaurov, would that suggest that there might be any kind of -- of hereditary problem within family?

DR. HELEN WHITWELL: I don't think I can really answer that. It may or may not. I mean, we -- we just don't know.

This Blogster has no doubt that there is no way - at this point of time - that Professor Whitwell, or anyone else could give a definitive answer to this question.

I am however troubled by the fact that the shocking disclosure appears to have merged for the first time almost two decades after Mr. Kumar pleaded guilty to criminal negligence in connection with Gaurov's death.

This is an important investigative fact which should have been discovered by both the corner and police investigators, relayed to the police, and then disclosed to defence counsel - if at that point of time the prosecution was determined to expose Mr. Kumar to criminal proceedings.

It is crucial to recollect that Mr. Kumar felt pressured to enter a plea to criminal negligence causing Gaurov's death shortly after it was offered by prosecutors in order to avoid the oppressive murder charge - while the family was still deeply in mourning.

His lawyers therefore never got down to the type of investigation which would have revealed this kind of information which may have offered a medical defence which indicated that Gaurov, like so many other infants in Dr. Charles Smith's cases, had died a tragic, but natural death.

Harold Levy...hlevy15@gmail.com;

Part Seven: Gaurov's Father; Shocking Disclosure At Inquiry: Kumar Not Told By Crowns About Recent Decision Blasting Smith And Sick Kids SCAN Team;

"THIS WAS A MAN WITH NO RECORD -- A NEW IMMIGRANT TO THIS COUNTRY, A WIFE WITH A BRAIN TUMOUR, A JOB. HE WAS A CONTRIBUTING MEMBER OF SOCIETY, AND ALL OF THE SUDDEN AN ATOMIC BOMB GOES OFF IN HIS LIFE -- MURDER 2. YOU HAVE TO TELL HIM BECAUSE THEY ALWAYS ASK, WHAT'S THE PENALTY, AND YOU SAY, LIFE WITH A MINIMUM PENALTY OF TEN (10) YEARS -- TEN (10) YEARS. HE WOULD HAVE GOTTEN OUT OF JAIL HAD HE
GOTTEN TEN (10) YEARS, AND IF THE TRIAL HAD TAKEN TWO (2) YEARS, HE'S JUST BE OUT NOW FOR FOUR (4) YEARS, AND HIS WHOLE LIFE WOULD BE SHATTERED. NOW, I -- I SEE IN THESE NOTES THAT I'VE BEEN GIVEN FOR THE FIRST TIME TODAY, THE MEETING JANUARY 30TH OF 1992, THE WORDS "DAMAGE CONTROL" APPEAR DEALING WITH THE CASE FROM MR. JUSTICE DUNN. I CAN'T MAKE A CONNECTION BETWEEN THAT MEETING AND WHAT HAPPENED IN MY CASE, EXCEPT THAT IT HAPPENED JUST A FEW WEEKS LATER OUT OF THE SAME OFFICE. I'M STILL SHOCKED."

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LAWYER DAVID GORRELL IN RESPONSE TO QUESTIONS POSED IN CROSS-EXAMINATION BY JAMES LOCKYER;

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One of the most shocking revelations from the Goudge Inquiry is Dinesh Kumar's lawyer's evidence that he was not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

As we have seen in many previous posts, this decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN team.

As will be seen towards the end of this post, a lack of access to this decision had dire consequences for Mr. Kumar which he bears to this day.

By was of background information, here is a post I ran on Thursday, January 10, 2008, under the heading "Damage Control And Lost Opportunity: The Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) Unit;"

It describes how the Hospital for Sick Children resorted to "damage control" rather than to dissecting Dunn's decision in order to see what they could learn from it in order to avoid future debacles.

I did not realize the additional significance of the damage control meeting - the presence of a prosecutor - until I was later exposed to Gaurov's case at the inquiry.

Here is the earlier post as published:

""C.S. FEELS HE WAS MISUNDERSTOOD."

FROM HOSPITAL FOR SICK CHILDREN DAMAGE CONTROL DOCUMENT;

One would like to think of the Hospital For Sick Children as an institution that wants to learn from its mistakes.

This would especially apply to the serious medical errors made by Dr. Charles Smith and the hospital's Suspected Child Abuse and Neglect (SCAN) Unit that led to a 12-year old girl Timmins, Ontario girl being wrongfully charged with manslaughter.

However, a document has emerged at the Goudge inquiry which shows that the SCAN team reacted to Ontario Court Judge Judge Patrick Dunn's scathing criticisms of its work by holding a "damage control" meeting at which Smith defended his work, and Dunn was branded as "strange" and "from the bottom of the heap"

The handwritten document does not evidence any concern on the part of Smith or the members of the SCAN team that Judge Dunn's rejection of the hospital's opinion that baby Amber was a victim of "shaken-baby syndrome," as opposed to a fall down the stairs, may have been well-founded.

Nor does it evidence any desire to figure out what went wrong so that the risk of future wrongful prosecutions can be minimized.

Instead, after noting that the meeting was attended by the members of the SCAN team and several prosecutors, it goes on to describe Dunn as "strange" a member of the "family court" and "not used to criminal standards."

It goes on to express a concern that, "the judgment is likely to be passed around and (symbol for "therefore") damage control)";

(In retrospect, this prediction was right on the mark as Dunn's carefully structured judgement is resonating today at the core of the Goudge inquiry as one of the first alarm bells to sound over Smith's competence.)

But is is evident that the "damage control" ultimately failed as the hospital's failure to accept its responsibility and do something to remedy its mistakes is now available on the public record for all to see.

One of the most disturbing suggestions in the document is the comment that there is "no precedential value re medical evidence. Family court judge at bottom of heap. Error may be brought up in another case."

The reality is that if Dunn's criticisms - as set out in a beautifully structured decision - had been heeded back in 1991, so many other individuals would have been spared the torment of being wrongfully accused of killing their beloved children.

Instead, the consensus of the meeting appears to be that it is, "acceptable to say we disagree with judge's judgment."

The notes indicated that Smith defended his opinion in the case on the basis that "our standard is higher than theirs" - (an apparent reference to the large number of U.S. experts called by the defence) - "but still has to be held up to a higher standard."

He also attempts to deflect criticism from himself by saying that the case involved an "outside opinion" and that he "relied on police photos."

"C.S. feels he was misunderstood," the anonymous minute-taker wrote.

This is typical of Dr. Charles Randal Smith.

Evidence called at the Inquiry indicates that even his defenders at the highest levels of the Chief Coroner's Office observed toward the end of his career at the hospital that he was incapable of accepting responsibility for his actions and tended to blame others for his own mistakes.

During his questioning yesterday of Dr. Dirk Huyer, former head of the SCAN team and Dr. Katy Driver, who played a prominent role for that team in Amber's case, lawyer Louis Sokolov, who represents the Association in Defence of the Wrongly Convicted, (AIDWYC) suggested that the Hospital's damage control meeting represented, "a lost opportunity."

He sure got that right.

(See previous posting: "A glimmer of understanding: Part Three; A dangerous mix; Dr. Charles Smith and the Hospital For Sick Children SCAN team.)

Posted by Harold levy at Thursday, January 10, 2008;"

Goudge Inquiry Counsel Mark Sandler twigged to the fact that the prosecutor who was present at the damage control meeting played an active role in the Kumar investigation - just several weeks later;

Here is Sandler's examination of David Gorrell, Kumar's lawyer, on this connection:

(Bear with me: I prefer to give full stretched of evidence rather than to risk inadvertently distorting the substance through editing);

CONTINUED BY MR. MARK SANDLER:

MR. MARK SANDLER: Thank you. Mr. Gorrell, we know from the materials that have been filed here that -- that Gaurov died in Toronto on March the 20th, 1992, at the age of five (5) weeks. Due to suspicions about his death, his older brother was apprehended by CAS on that same date. We also know that on June the 16th of 1992, the report of post-mortem examination prepared by Dr. Smith was issued. I'm going to take you to the overview report if I may, which is at Tab 1 of your materials. And if you'd go to PFP143828, at paragraph 59, and you'll
see paragraph 59 is at page 32 of the overview report.

MR. DAVID GORRELL: Thank you.

MR. MARK SANDLER: And you'll see that on June the 26th of 1992, there was a meeting involving Dr. Smith, Constable Line, Detective Rolf Prisor, and -- Prisor, and Crown counsel, Mary Hall and Sandra Kingston. Just stopping there for a -- for a moment. First of all, what was Ms. Hall's position back in June
of 1992, as you understand it?

MR. DAVID GORRELL: I believe she was the -- either a Bureau Chief, or a Crown attorney, an independent Crown attorney. I'm not sure if Scarborough had been hived off yet, and made into a -- a jurisdiction for a separate Crown. But she was the head person. (Blogster's Note: Prosecutor Hall did not testify at the Inquiry. Her side of the story is not represented in this post.)

MR. MARK SANDLER: And were you aware of what, if any, role she played in the Gaurov case?

MR. DAVID GORRELL: Well, she would obviously supervise. She did participate in the -- in a judicial pretrial that we had on October 22nd of 1992, but that was simply because the assigned Crown, I believe, was not available.

MR. MARK SANDLER: And that was Ms. Koehl?

MR. DAVID GORRELL: Ms. Koehl, yes.

MR. MARK SANDLER: And you see from the overview report that that meeting involving the police and Crown counsel and Dr. Smith took place on June the 26th, and the overview report reflects that, according to a police report, Dr. Smith confirmed his diagnosis of Shaken Baby Syndrome, and added that the injuries probably resulted from continuous shaking as opposed to a single violent shake. We also know, Mr. Gorrell, that on June the 29th of 1992, Gaurov's father was arrested for second degree murder, some three (3) days later.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And the bail hearing took place on July the 10th -

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: -- and were you involved in the bail hearing?

MR. DAVID GORRELL: I became involved on July 2nd. The case first went to Dhamen Kissoon -- K-I- S-S-O-O-N, who had gone to the bar in 1989, and he retained me to lead on the defence. And I became involved on June 30th. And we worked on preparing the necessary affidavits and so on for the bail hearing from June 30th on.


MR. MARK SANDLER: All right.

MR. DAVID GORRELL: Until July 10th.

MR. MARK SANDLER: And we know from the materials that have been filed that the Crown consented to the release of your client on bail, pending trial. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And I want to ask you about a conversation that your dockets reflect took place with Rita Koehl on the same date of the bail hearing, June -- July the 10th.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Tell us what transpired.

MR. DAVID GORRELL: This is a -- a case that's sixteen (16) years ago, and therefore, I'm relying heavily on the notes that were found in Mr. Kissoon's file. My own file isn't -- is no longer available. According to the dockets and the notes that I have here, on the day of the bail hearing, Ms.
Koehl, with Sergeant Prisor, I think, present, discussed with me the possibility of a resolution by way of plea to something possibly for no time.

MR. MARK SANDLER: All right. And how did you react to the fact that on a murder case, the Crown had initiated a discussion with you that involved a
potential plea for -- for no time?

MR. DAVID GORRELL: I was surprised.

MR. MARK SANDLER: And did you have any explana -- or was any explanation given to you as to why the Crown was taking that position as -- that early and at that stage in the proceedings?

MR. DAVID GORRELL: Not that I recall, and I would not have asked. You don't look a gift horse in the mouth.

MR. MARK SANDLER: All right. And similarly, I see that, as you've indicated, there was a consent to your client's release on bail, pending trial.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Was that in your experience usual for a murder case?

MR. DAVID GORRELL: John would be better to ask. I haven't done nearly as many as he has, but you can get consent releases on murders, and I think this would have been a case where you could have.

MR. MARK SANDLER: All right. Now, just seeing what, if anything, we can figure out about -- about why the Crown was motivated to proceed in the way it did. I want to ask you about something that you may or may not know about, and that is, we've heard some evidence here, Mr. Gorrell, that on January -- in January of 1992, that same year -- a conference -- a case conference was conducted at the Hospital for Sick Children in connection with the Amber case, and it arose out of the comments that Justice Dunn had made about the Hospital for Sick Children witnesses, including Dr. Smith, at -- at that trial, and we also know that in January of 1992, Ms. Hall and Ms. Kingston participated in that conference.
Two (2) questions arising out of that. Did either Ms. Hall or Ms. Kingston, or anyone else from the Crown's office have any discussions with you about the Amber case and its impact upon the Gaurov case?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: Were you aware that -- that the Crowns, including Ms. Hall, had participated in a case conference in connection with the Amber case before the Gaurov case had taken place?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: All right.

MR. DAVID GORRELL: All right, let me rephrase that. I know that they met again, I think, on June the 26th about this case, about the -- the Gaurov case, but I was unaware of this meeting. I have the notes in front of me here. I've seen them today for the first time. I was unaware of this meeting on January 30th, 1992.

MR. MARK SANDLER: All right. And you've made reference to -- to the meeting that took place here and -- and I've made reference to the Crown, so just taking you to page 32, paragraph 59, that's the reference that I took you to a little bit earlier of the meeting that took place involving Dr. Smith, the police, Ms. Hall, and Ms. Kingston. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And were you aware that -- that that conference had taken place prior to the laying of the charges?

MR. DAVID GORRELL: I don't think so. It's been a long time ago, but I don't think I was aware of that meeting, and I don't think I had the police notes of it. I do have the original disclosure here from 1992, and the summary that is -- is available in these materials is not in that disclosure.

MR. MARK SANDLER: Okay, and leaving aside your awareness of the June 26th, 1992 meeting, you earlier indicated that you were the one that actually
gave Mr. Struthers a copy of the Amber decision, and this would be sometime later on.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Were you even aware of the Amber decision back in June of 1992 or during the currency of your involvement in the Gaurov file?

MR. DAVID GORRELL: No, I was not.

MR. MARK SANDLER: Was it something that you would have been like -- that you would have liked to have been aware of?

MR. DAVID GORRELL: Oh, yes;"

As the following transcript indicates, lawyer James Lockyer, who represents William Mullins-Johnson, Sherry Sherret-Robinson and at least seven unnamed persons at the Inquiry, was quick to zoom into this connection in his cross-examination of Gorrell;

MR. DAVID GORRELL: This was a man with no record -- a new immigrant to this country, a wife with a brain tumour, a job," Gorrell told Lockyer;

"He was a contributing member of society, and all of the sudden an atomic bomb goes off in his life -- murder 2. You have to tell him because they always ask, What's the penalty, and you say, Life with a minimum penalty of ten (10) years -- ten (10) years. He would have gotten out of jail had he gotten ten (10) years, and if the trial had taken two (2) years, he's just be out now for four (4) years, and his
whole life would be shattered. Now, I -- I see in these notes that I've been given for the first time today, the meeting January 30th of 1992, the words "damage control" appear dealing with the case from Mr. Justice Dunn. I can't make a connection between that meeting and what happened in my case, except that it
happened just a few weeks later out of the same office. I'm still shocked.

MR. JAMES LOCKYER: The same Crown, as a matter of fact --

MR. DAVID GORRELL: Well, no, -- well, no, Ms. Koehl wasn't on this case, but Mary --

MR. JAMES LOCKYER: Mary Hall --

MR. DAVID GORRELL: Mary Hall, the same Crown attorney.

MR. JAMES LOCKYER: -- was the common denominator to your case and their case, is that right?

MR. DAVID GORRELL: Yes, and the Scarborough courthouse --

MR. JAMES LOCKYER: Mm-hm.

MR. DAVID GORRELL: -- and Charles Smith, Of course. But --

MR. JAMES LOCKYER: I think Mary Hall was actually the Crown when you did the pretrial in October--

MR. DAVID GORRELL: Yes, she did.

MR. JAMES LOCKYER: -- on the Gaurov case, is that right?

MR. DAVID GORRELL: She was there. I think Ms. Koehl was unavailable for some reason, but...

MR. JAMES LOCKYER: Yes. And I -- as I recall, Mr. Koehl also said that any plea arrangement would be subject to the approval of Ms. Hall.

MR. DAVID GORRELL: That I don't remember, but I -- I wouldn't be surprised in any case.

MR. JAMES LOCKYER: It's in one (1) of the documents in the file you arrived with today.

MR. DAVID GORRELL: Really?

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: Fine, then I accept
that.
MR. JOHN STRUTHERS: It was the practice
at the time.

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: But the -- just -- just to continue with this, what -- I said, my heart went out to Gaurov's father. I don't know how I'd -- I'd act in this situation if I had someone like Mr. Struthers saying, Well, you can get ninety (90) days on weekends. After emission, that's sixty (60) days. That's a maximum of fifteen (15) weekends. The Mimico is jammed, so you'll wind up doing only three (3), or four (4), or five (5). You can do that, or you can sit in the courtroom and be judged by everybody with a risk, with Charles Smith up there with a mantle of Sick Kids on his shoulder. You can go to jail. You can go to jail on a
manslaughter. I really didn't think a murder was in the cards, but you can go to jail on a manslaughter. What decision would I make? I'm pretty sure I'd make the
decision he made even if I were not guilty. But as his lawyer, I'm the only person in the whole scenario that Doesn't judge him. The police judge him when they charge him. The Crown judges him when they prosecute him. The Judge judges him, the jury judges him, the press judges him. When he says, I want to plead guilty, and
I will sign on the dotted line, and I did it, I'm not going to tell him, No, sir, you're going to face the trial and if you get eight (8) years, that's for the
greater good of the justice. I took his instructions and I -- I would not be at all surprised, with the stress that man was under at the time, if he was doing it out of expediency.

MR. JAMES LOCKYER: And the instructions that you received from him by way of the form that you prepared, obviously the way it's typed up, it was -- the words were your words in that document, is that fair?

MR. DAVID GORRELL: Yes, they were my words.

MR. JAMES LOCKYER: And they were words designed to fit the notion of criminal negligence. Reckless is hardly a word an east Indian that doesn't
speak English is going to come up with.

MR. DAVID GORRELL: No, the -- this -- these were my words.

MR. JAMES LOCKYER: Yes. And, as Mr. Struthers was just saying, it was more a document for your protection than a document to assist Gaurov's
father, is that fair?

MR. DAVID GORRELL: I think that's probably fair. It's also a document that you would use to fix his mind as to what he's doing, so that he can't
come back and -- I guess to protect counsel, that's right. I(t) was thirteen (13) pages;"

Dear readers:

Imagine how the prosecutors must have felt to learn about Justice Dunn's troubling criticisms of the work performed by Dr. Charles Smith and the Hospital for Sick Children SCAN-TEAM in the then recent Amber case;

Would that not have raised serious questions as to whether or not there was a reasonable possibility of obtaining a conviction in the case?

At the very least, shouldn't the existence of the decision - which was not likely publicly available at that time - have been made to the defence lawyers?

At least, that way they could assess the strength of the Crown's case before putting the plea to criminal negligence causing his son Gaurov's death to his client whether or not the law relating to disclosure at the time required them to do so?

As a criminal lawyer, I suspect that after reading the Dunn decision I would have been in a position to more confidently advise the client to contest the murder charge - instead of having to go through the contortions involved in a criminal negligence plea where I would have so much doubt about my client's guilt?

Just imagine how much pain this mourning family would have been spared - let alone the need to bear the load of sixteen years of stigma in their tiny community - and having to fight for ultimate exoneration after sixteen years in the Ontario Court of Appeal;

Next: Part Seven; Gaurov's father: Another shocking revelation;

Harold Levy: hlevy15@gmail.com;

Part Two: Work Of Other Pathologists Who Conducted Pediatric Autopsies in Ontario Must Also Be Reviewed; Closing Submissions; AIDWYC And M.J. Group;

"THROUGHOUT HIS TENURE, THERE WAS VIRTUALLY NO OVERSIGHT OR PEER REVIEW OF POST MORTEM REPORTS IN THE PROVINCE.

IT IS REASONABLE TO CONCLUDE, THEREFORE, THAT ERRORS ARE LIKELY TO HAVE OCCURRED BY OTHER PATHOLOGISTS DURING DR. SMITH’S TENURE.

A REVIEW MUST THEREFORE BE UNDERTAKEN OF ALL PEDIATRIC AUTOPSIES CONDUCTED IN ONTARIO SINCE 1981 IN CASES THAT RESULTED IN CRIMINAL CONVICTIONS."

CLOSING SUBMISSIONS: AIDWYC AND THE MULLINS-JOHNSON GROUP;

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The closing submissions filed jointly by The Association In Defence of the Wrongly Convicted (AIDWYC) and the Mullins-Johnson group contain some extremely interesting information and valuable recommendations.

For this reason, I am devoting several blogs to these submissions over the next few days. They have been prepared by lawyers: James Lockyer, Louis Sokolov, Phillip Campbell, Vanora Simpson and Alison Craig:

Today's focus is on a section in which the two parties point out that the Inquiry has raised doubts about the opinions of other pathologists in Ontario who conducted pediatric autopsies over the years - and recommends a review of all pediatric autopsies in the Province of Ontario Since 1981

(This would include, at a minimum, a review of all of Dr. Smith’s work from 1981 to 1991);

"While efforts have already begun to identify pre-1991 cases, that project must continue," this section of the closing submissions begins.

"There have been consistent problems in Dr. Smith’s cases," it continues;

"His forensic pathology was dreadful, his evidence was over-stated and emotive, and his conclusions were wrong.

Dr. Smith’s own evidence - that his education and training in forensic pathology was ‘woefully inadequate’, that he was ‘profoundly ignorant’ of the role of an expert witness in the courts, and that he did not understand the importance of, nor the procedures for, maintaining the continuity of evidence – suggests that those problems undoubtedly plagued his earlier work.

Again, quoting Dr. Smith’s own words, he had “extraordinarily limited… knowledge or expertise” and it was “potentially dangerous” for him to work on some cases.

His testimony in these cases nonetheless betrayed no uncertainty; he himself described it as “defensive or dogmatic or adversarial”.

Dr. Pollanen has said the reviews of Dr. Smith’s pathology opinions established there “is a reasonable basis to believe that problems might exist with Dr. Smith’s cases prior to 1991”.

All cases which relied on pathology opinions rendered by Dr. Smith require review.

Dr. Smith was not, however, working in isolation; he was the Director of the Ontario Pediatric Forensic Pathology Unit for over two decades.

Several forensic pathologists worked under his influence and administration.

He provided countless consultations (many of them undocumented) to pathologists across the province and across the country, and was viewed as an “icon” by pathologists in the field.

Throughout his tenure, there was virtually no oversight or peer review of post mortem reports in the province.

It is reasonable to conclude, therefore, that errors are likely to have occurred by other pathologists during Dr. Smith’s tenure.

A review must therefore be undertaken of all pediatric autopsies conducted in Ontario since 1981 in cases that resulted in criminal convictions.

Dr. Smith was accorded unparalleled respect and deference by his peers.

They were unwilling to challenge him.

For example, in the case of Valin, Dr. James Ferris, a respected forensic pathologist who had been retained by the defence at trial, admitted in a recent report that:

"…there’s no doubt that, at that time, my opinions were unduly influenced by the apparent authoritative opinions given by Drs. Smith and Mian… I was concerned, at that time, with the opinions expressed by Dr. Smith in the case and, since that time, I found myself disagreeing with his forensic pathology opinion expressed in several cases."

He continued:

"I’m now aware that his professionalism is being questioned by others, and I was clearly in error to accept, so readily, his opinions in the case.

Finally, his report concluded:

"Having reviewed all the evidence and materials referred to, it’s clear that my opinions were unduly influenced by my instructions from [defence counsel] and my ready acceptance of the opinions of Doctors Zehr, Mian, and Smith.

It is now clear to me that these influences reduced the level of objectivity of my opinions that would normally be expected from a Forensic Pathologist of my experience."

In the case of Baby M, a pathologist consulted by defence counsel who testified at the Inquiry indicated that Dr. Smith was the foremost expert in forensic pathology, and that she would not be prepared to challenge his findings.

If independent pathologists retained by the defence were unwilling to challenge Dr. Smith and allowed their judgment to be clouded by his celebrated status, it is a reasonable inference that physicians working beneath him did too.

A particularly disturbing example of this pattern is the meeting that took place regarding Sharon’s case between Dr. Smith, Dr. Wood, Dr. Cairns, Dr. Chiasson, Mr. Blenkinsop and Dr. Queen, not long after the autopsy.

Each expert at the meeting deferred to Dr. Smith’s contention that the wounds were not caused by dog bites, except for Dr. Queen, who believed they might, indeed, have been caused by a dog.

He did not advance these views forcefully, however, likely because he was a relatively junior member of Dr. Smith’s staff.

Dr. Cairns, the Deputy Chief Coroner and Dr. Smith’s superior at the time, now belatedly admits that he “put undue faith in Dr. Smith”, and that he believed that Dr. Smith was ‘the’ pathologist, an opinion shared by many in his office, the media, the Crown and defence bar, and the judiciary.

It took him “a long time to come to the realization (that there was a problem)… because he had put him on such a pedestal”.

Dr. Smith was widely consulted by other pathologists around the country, and was seen as the ‘go-to guy' in pediatric forensic pathology.

Pathologists were advised to call him for a consultation during the course of an autopsy, which may well have affected their conclusions.

It appears that many of those consultations were unlikely to have been recorded, and therefore identifying only the cases in which Dr. Smith was definitively involved would be impossible.

This inability to trace Dr. Smith’s influence is one of the factors which demands a comprehensive review.

There was no adequate supervision of Dr. Smith during his tenure, or of any other pathologist conducting medicolegal autopsies under the auspices of the Chief Coroner.

Dr. Smith had no proper training in forensic pathology.

Yet, he was the one who reviewed every report that came out of the unit.

In a telling exchange, Maxine Johnson, the Hospital for Sick Children Pathology Unit’s administrative coordinator, described the process:

"Commissioner: There was no practice for the CF12 to be reviewed by another pathologist before it was signed out to the Chief Coroner's Office;

A: Not for Dr. Smith. But the other pathologists had to give theirs to Dr. Smith because he was the Director of the Unit. So the pathologists would, you know, do their case. We’ll give it to Dr. Smith. He would review it, you know, make any suggestions to those pathologists –

Q: Right.

A: - and – but as far as Dr. Smith –

Q: So the practice was it would not be signed out by the case pathologist until the CF12 had been reviewed by Dr. Smith?

A: Most of the times, yes."

Until 1994, there was absolutely no formal review mechanism for post-mortem reports issued by pathologists working on behalf of the Chief Coroner’s Office.

In 1995, Dr. Chiasson instituted a bare-bones review process which consisted of simply ensuring the report itself met a basic standard, and attaching a ‘checkmark form’ - as it came to be known - to each completed report.

There was no review of photographs, slides, or underlying histology.

As Dr. Chiasson acknowledged, a review of this nature would not have identified a flawed analysis involving a misinterpretation of an injury or pathological conclusions from microscopic or histologic findings.

Dr. Chaisson had the sole responsibility for reviewing all 1,500 reports each year, which allowed for no more than a cursory scan of the report.

In cross examination by Mr. Campbell, Dr. Chiasson acknowledged that his review process would not have caught many of Dr. Smith’s mistakes:

Q: Knowing now what you didn’t know then, it would be fair to say that you needed a bit more insight into the factual substratum of the – the autopsies to identify some of the things that we now know were in error. Is that – would you accept that?

A: I would accept that, yes. A lot of the issues revolve – specific questions relating to circumstances of a death that were not information that wasn’t provided in the PM reports, yes.

Dr. Chiasson also acknowledged that his own lack of expertise with pediatric cases may have contributed to his inability to provide effective oversight.

He paid little attention to the reports of pathologists whom he knew and respected. As he candidly explained in his testimony:

“I was reviewing pathologists who I got to know very quickly. And – and a review in that case may have been simply looking at the bottom line, looking at the summary, and thank you very much”.

This admission, while commendable, does not inspire public confidence that no other miscarriages of justice occurred during his tenure.

Dr. Smith’s errors went undetected by the only review process in place, and common sense dictates that the errors of others did as well.

The work of Dr. Brian Johnston, who was, and still is, the Director of the Eastern Ontario Regional Forensic Unit is now the subject of controversy.

For over a decade, alarm bells were ringing regarding his competence and his propensity to reach critical conclusions that were not supported by medical or scientific evidence.

In one particularly shocking example, which parallels some of Dr. Smith’s cases, the natural death of an adult was attributed to strangulation causing an innocent person to be held in custody for some time.

Nevertheless, he was allowed for years to continue conducting the majority of criminally suspicious autopsies at the Eastern Ontario unit simply because there was nobody to take his place.

Dr. Chiasson identified persistent problems with the validity of Dr. Johnston’s conclusions and his administrative capabilities.

He made efforts to engage Dr. Johnson in remedial steps, without success, and his repeated pleas to have him removed as Director were ignored by Dr. Young.

It was not until February, 2007 that Dr. Johnston and the rest of the Ottawa staff were formally notified that they were no longer permitted to do homicide or criminally suspicious cases for the Chief Coroner's Office;

This provides one more reason for a Province-wide review.

As well, the lens of the “think dirty” regime that pervaded the death investigation system after the release of “Memo 631” on April 10, 1995 must have tainted the objectivity of pathologists throughout the Province.

As Dr. Chiasson and others acknowledged, pathologists would have been vulnerable to pressure from the police to make findings consistent with their pre-existing theory of the case.

Recommendations from this Inquiry will help to solve these kinds of problems in the future, but future improvements will not uncover past mistakes.

Several highly qualified and knowledgeable witnesses at the Inquiry supported an examination of other cases.

Dr. Crane supported it.

Dr. Butt suggested that it would be “a prudent thing to do”.

Dr. Cairns considered a further review to be an ‘ethical duty’.

Dr. Pollanen, the Chief Forensic Pathologist of Ontario, agreed that to restore public confidence in pediatric forensic pathology, a range of cases much broader than those of Dr. Smith needed to be examined.

There are relatively low numbers of pediatric homicides in Ontario each year.

45 of them have already been examined.

A review of the remaining cases is unlikely to be a great deal more demanding than the review that led to this inquiry.

The number of pediatric homicides and criminally suspicious deaths in Ontario each year can be estimated at between 10 and 20, with 5 to 15 of these occurring in children under the age of five.

Of those, only a fraction would have resulted in criminal convictions.

The number of criminally suspicious pediatric deaths since 1981 therefore falls into a range of approximately to 200 to 300 at the very most, 45 of which have already been reviewed.

In the Goldsmith Review, almost 300 cases were studied within the span of approximately 10 months.

This effort has significant systemic value beyond the obvious utility of correcting errors and doing justice in individual cases.

The evidence heard at the Inquiry suggests that the Chief Coroner's Office has not, until recently, acknowledged, confronted, and worked to correct possible errors resulting from their pathologists' work.

This Inquiry heard evidence about a litany of circumstances that ought to have sparked an earlier, comprehensive review of Dr. Smith's work, including the following:

0: the judgment delivered by Justice Dunn in 1991 acquitting Amber's babysitter of homicide, which seriously criticized Dr. Smith's work and his lack of objectivity;

0: the 1999 abandonment of the Children's Aid Society child protection application after the investigation of Nicholas' death and the receipt of sharply conflicting expert opinions, followed by Maurice Gagnon's litany of complaints between 2000 and 2003 to those whom he hoped would listen;

0: the 1999 withdrawal of homicide charges against Jenna's mother once substantial expert evidence emerged that challenged Dr. Smith's opinion, and,

0: the College of Physicians and Surgeons investigations of Dr. Smith which commenced in 1999.

Instead, in January 2001, after the withdrawal of criminal charges against Tyrell's caregiver and Sharon's mother, an internal review of the pathology in only those two cases was conducted.

A broader, external review of Dr. Smith's work was aborted.

51 Dr. Smith wrote to Chief Coroner Dr. Young and requested he be removed from the roster of pathologists doing medico-legal autopsies.

(He later started again.)

James Lockyer, as a Director of AIDWYC, requested a review following the revelations about these two cases.

Dr. Young responded that no comprehensive review would be performed.

Two articles were published in Maclean's Magazine in May 2001, "Dead Wrong" and "The Babysitter Didn't Do It," which set out some of the history.

No review followed this adverse publicity; Dr. Cairns' comments quoted in the articles were supportive of Dr. Smith.

In December 2001, David Bayliss, as a Director of AIDWYC, wrote to Dr. Cairns to request a review of the pathology in William Mullins-Johnson's case; this would not follow for several years58.

Another internal review of pathology, later supplemented by an external consultation, at the request of the investigating police service, confirmed difficulties in Jenna's case.

It was not until intensifying media scrutiny of the lengthening list of problematic cases in 200360, with the stay of proceedings ordered by Justice Trafford in Athena's case in June of that year, that Dr. Smith resigned from all coroner's autopsy and committee work, and in July 2004, from his position entirely.

A tissue audit was prompted by materials missing in Mullins-Johnson's case, and the media attention and public pressure relating to this and controversy over Jenna's case led to the Chief Coroner's June 2005 announcement of his decision, finally, to review and scrutinize Dr. Smith's cases for errors in pathology opinions.

A decade and a half had passed since Justice Dunn's ruling.

Part of this Commission's mandate is to make recommendations that will assist to "restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings."

Public confidence will be restored not only by changes made to improve the system in the future to avoid the repetition of errors, but also by a scrupulously fair and penetrating review of past cases where those errors may have occurred.

The press releases from the Chief Coroner's Office in 2005 and 2007, as the review of Dr. Smith's work started and finished, explicitly make this connection.

The Chief Coroner's Office stated at the outset that, "Conducting this review is an essential step in maintaining the public confidence in all of the important work that is done, day in and day out, by coroners and pathologists who provide service for the Office of the Chief Coroner and the public," and at the conclusion that, "maintaining public confidence in the Ontario Coroner's System was an underlying reason for conducting this review."

The same holds true for a more comprehensive review.

Even if a difficult or time-consuming process, these reviews are essential to demonstrate to the public that the Chief Coroner's Office has successfully combated the culture of avoidance which created the environment to allow errors to be made and to stand uncorrected."

Harold Levy...hlevy15@gmail.com;

Part One: Dr. Cutz's Recommendations To Goudge Inquiry; Remove Ontario Forensic Pediatric Pathology Unit From Sick Kids;

"IN SUMMARY, IT IS MY VIEW THAT THE DIVISION OF PATHOLOGY AT THE HOSPITAL, AND OTHER PEDIATRIC PATHOLOGY SERVICES AT OTHER LARGE ACADEMIC CENTERS, ARE BEST SUITED TO PROVIDE HIGH QUALITY PEDIATRIC PATHOLOGY SERVICES FOCUSING ON ACADEMIC ASPECTS THAT INCLUDE THE DIAGNOSIS AND INVESTIGATION OF PEDIATRIC DISEASES.

HOWEVER, TO ENSURE THAT INFANTS AND CHILDREN ARE PROTECTED FROM HARM AND ABUSE, THE REMAINING TEN PER CENT OF CASES THAT INCLUDE CLEAR HOMICIDES OR CRIMINALLY SUSPICIOUS DEATHS ARE BEST HANDLED BY QUALIFIED FORENSIC PATHOLOGISTS WHOSE TRAINING AND EXPERIENCE LIES PRIMARILY IN THE EXAMINATION OF VIOLENT DEATH, HOMICIDES AND SUCH.

THE BEST SETTING TO PERFORM THESE AUTOPSIES (WHICH TOTAL APPROXIMATELY 10-15 CASES PER YEAR) IS AT THE CHIEF CORONER'S OFFICE WHICH HAS THE QUALIFIED STAFF AND REQUIRED FACILITIES TO CONDUCT THE NECESSARY INVESTIGATIONS."

DR. ERNEST CUTZ: RECOMMENDATIONS TO GOUDGE INQUIRY;

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

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

This Blog is therefore publishing Dr. Cutz's submissions - beginning with his recommendation that the hospital should cease performing forensic autopsies - and focus, rather, on what he calls, "medical/natural death cases."

"I have reviewed the “List of Systemic Issues” currently available on the website of the Inquiry into Pediatric Forensic Pathology in Ontario," this portion of Dr. Cutz's submissions begins.

"The following document reflects my own personal views and comments on select questions posed in that list" it continues;

"My comments reflect over 35 years of experience in Pediatric Pathology, including pediatric forensic pathology.

I. Institutional Considerations: Should Ontario have an institutional setting dedicated to pediatric forensic pathology, or should pediatric services be delivered within a forensic pathology institutional setting?

In essence, it is my view that the pediatric pathology work performed in Ontario should not be all be performed by the same institution.

Rather, pediatric autopsy work should be divided between the Hospital for Sick Children (the Hospital) and the Office of the Chief Coroner of Ontario. (The Chief Coroner's Office);

I say this for the following reasons:

a) Approximately 90 per cent of pediatric cases investigated under the Coroner’s Warrant result from death due to natural causes or pediatric disease.

These cases are thus not “forensic” by nature.

It is appropriate that pediatric pathologists from the Hospital for Sick Children perform the autopsies in these cases.

It is my view, however, that the Hospital should only perform autopsies on these “medical/natural death cases”.

Therefore, there would no longer be a need for a Pediatric Forensic Pathology Unit (the Unit) at the Hospital;

Furthermore, it is my view that there is an incompatibility between the principal mission of the Hospital as being dedicated to academic pursuits and research and the Chief Coroner's Office which excludes research;

I believe that the institutional link between the Hospital and the Chief Coroner's Office should be discontinued.

b) In summary, it is my view that the Division of Pathology at the Hospital, and other Pediatric Pathology services at other large academic centers, are best suited to provide high quality pediatric pathology services focusing on academic aspects that include the diagnosis and investigation of pediatric diseases.

c) However, to ensure that infants and children are protected from harm and abuse, the remaining ten per cent of cases that include clear homicides or criminally suspicious deaths are best handled by qualified forensic pathologists whose training and experience lies primarily in the examination of violent death, homicides and such.

The best setting to perform these autopsies (which total approximately 10-15 cases per year) is at the Chief Coroner's Office which has the qualified staff and required facilities to conduct the necessary investigations.

d) In terms of the pediatric disease cases, the best protection against wrongful accusations in pediatric cases is the provision of a correct diagnosis of natural disease based on a solid scientific foundation.

The diagnosis of pediatric disease in the 21st century is based on sophisticated methods of cellular and molecular biology (i.e. testing for genetic or metabolic disorders).

This testing requires special expertise and facilities, all of which are available at the Hospital, but are not available at the Chief Coroner's Office;

e) Since research and education into pediatric disease is outside the mandate of the Chief Coroner's Office, the responsibility and the provision of resources for this essentially patient-related activity should be assumed by the Ministry of Health and Long term Care.

10. What is the most cost efficient way of delivering quality pediatric forensic pathology services? For example, what are the advantages and disadvantages of using staff doctors or fee-for-service doctors?

a) Staff Pathologists based at leading Pediatric Academic Institutions, such as the Hospital for Sick Children can deliver the most cost-efficient and highest quality pediatric pathology services.

All staff are qualified and experienced Pediatric Pathologists who are also cross-appointed to the University of Toronto and thus participate fully in research and educational activities.

b) The combination of high-level diagnostic skills in diagnosing pediatric disease, research into disease pathogenesis, and education ensures that the work of these pathologists is high quality and also serves to educate the next generation of pediatric pathologists, thereby addressing the shortage of professionals in this specialty."

This Blogster has addressed the issue as to whether the Ontario Forensic Pediatric Pathology Unit should remain at the Hospital for Sick Children in an earlier post entitled, "Up-Date: Expert Evidence; Part Three: Research Questions Whether Forensic Unit Once Headed By Smith Should Remain At Sick Kids," published on March 8, 2008;

For the benefit of those readers who have not read it, that post ran as follows:

"IN ADDITION TO AN ABSENCE OF MEANINGFUL OVERSIGHT, THE INTEGRATION OF THE (UNIT) WITHIN THE PEDIATRIC PATHOLOGY UNIT AT THE HOSPITAL FOR SICK CHILDREN(INCLUDING INTERACTION WITH THE SUSPECTED CHILD ABUSE AND NEGLECT (SCAN) TEAM) MAY HAVE CREATED A PARTICULAR KIND OF INSTITUTIONAL CULTURE THAT CONTRIBUTED TO THE “THINK DIRTY” ETHOS, DISCUSSED IN OTHER RESEARCH CONDUCTED FOR THIS INQUIRY,"

PROFESSOR LORNE SOSSIN IN RESEARCH PAPER PREPARED FOR THE GOUDGE INQUIRY;

Ontario's Pediatric Forensic Pathology Unit, once headed by Dr. Charles Smith, risks being tainted by its proximity to the Hospital for Sick Children's Sick Children's Suspected Child Abuse and Neglect (SCAN) team, a researcher suggests.

University of Toronto law professor Lorne Sossin, recommends that Ontario should rethink retention of the Unit at the (Hospital) in a paper commissioned by the Goudge Inquiry entitled, "oversight and accountability." (The paper is posted on the Inquiry's Web-site;)

"In addition to an absence of meaningful oversight, the integration of the (Unit) within the pediatric pathology unit at the Hospital for Sick Children(including interaction with the Suspected Child Abuse and Neglect (SCAN) team) may have created a particular kind of institutional culture that contributed to the “think dirty” ethos, discussed in other research conducted for this Inquiry," writes Sossin;

"While there may have been good reasons to establish the (Unit) and locate it in (the Hospital) the viability and desirability of this arrangement continuing should be the subject of further study."

This Bloggist focused this issue in a previous posting entitled "A glimpse of understanding: Part Three; A dangerous mix: Dr Charles Smith and the Hospital for Sick Children SCAN team." (Jan, 2, 2008;"

"In two recent recent postings I have linked Dr. Charles Smith's ability to have such a disastrous effect on Ontario's criminal justice system directly to the decision to appoint him to head the new Ontario Forensic Pediatric Pathology Unit which would be located at the Hospital for Sick Children in Ontario. (A glimmer of understanding; Parts One and Two);" the Blog began.

"One of the unfortunate by-products of this decision is that Smith would have increased influence with the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) Program," it continued.

"Smith, as director of the new prestigious new unit, and the hospital's SCAN unit would prove to be a dangerous mix.

Hospital literature described the SCAN Program as "a hospital-based, multidisciplinary team that offers care, support, and assessment to children and adolescents who may have been abused."

However, as a criminal lawyer, and Editor of the Criminal Lawyers Association Newsletter, In the 1980's I began hearing stories which indicated that the team had a propensity for turning tragic but innocent situations into criminal assaults.

In 1985, I learned about a case which confirmed my worse fears about the program - and wrote bout the case in the Toronto Star, under a headline that read: "They were caring parents, not child abusers"

"Sometimes, people acting with the best of intentions end up achieving the worst possible result," the story began.

"Such was the case in a recent dispute involving a northern Ontario couple and the Catholic Children's Aid Society of Metro Toronto.

The couple were plunged into a nightmare in which they were branded as child abusers of their then one-year-old son and had both of their children taken from them.

In fact, as later became clear when the case landed in court, their son, Tyler,
suffered from a rare bone disease and hadn't been abused at all.

After it became evident that Tyler wasn't developing properly and x-rays had revealed some bone lesions, his parents, whose identity cannot be published, asked their family physician in Elliot Lake to refer the child to Toronto's Hospital for Sick Children for examination by specialists.

But they returned home disappointed, early in January, 1985, as the hospital was unable to pinpoint the disease.

They were unaware that the head of the radiology department had concluded
that the x-rays "were suggestive of child abuse."

They were also unaware that a hospital child abuse team had met in their absence and had asked the medical staff to have the couple return to the hospital with both of their children.

On their arrival, officials of the Metro Children's Aid Society were waiting to "apprehend" both children under a law that permits children at "substantial risk" to be taken from their parents, pending a court hearing.

Bewildered, they returned alone to Elliot Lake to discover that their nightmare had only just begun.

The radiologist's diagnosis that the x-rays were "suggestive" of child abuse had mushroomed into the conclusion by a member of the abuse team that there was "a clear possibility of child abuse."

And the Metro Catholic Children's Aid Society, which had taken over the case, was planning to place Tyler in a foster home and the other child with his natural father.

This move was blocked following the intervention of a lawyer and a private social worker retained by the parents. That led to the children's placement with grandparents.

But the parents couldn't persuade the society to take further steps to find out what was wrong with Tyler, even though a renowned bone disease expert in California had concluded, after viewing the x-rays from the Hospital for Sick Children, that the
lesions were more consistent with bone disease than with fracture.

The expert had suggested to the hospital that certain tests should be carried out, but the hospital declined to perform these particular tests.

The parents were then forced to go to court on April, 22, 1986, to free Tyler so that he could be taken to California, partially at their own expense, and with the help of OHIP, for testing and diagnosis.

After a four-day hearing contested by the society, Family Court Judge Peter Nasmith granted the parents' application and made the decision that led to the proof that Tyler was a sick child, not an abused one, and that the parents were caring human
beings and not child abusers.

The California doctor confirmed his original diagnosis, and after doctors at an Ottawa hospital provided additional confirmation, the society finally withdrew the application to make the boy a crown ward.

What went wrong?

The key is provided by Judge Nasmith's comments at the hearing, where he took the unusual step of telling the society to pay costs to the parents for the legal proceedings.

Having concluded that, "the medical evidence was inconclusive and any evidence of possible abuse was of a very unreliable nature," and noting the difficulties the society faced because of the number of agencies involved and the fact that it was
"obviously influenced (perhaps controlled) by the child abuse team at the Hospital for Sick Children," the judge said: "The fact remains that there was embarrassingly little effort to follow up on what had become a devastating allegation . . . I
think the position (the society) took was unreasonable and even arbitrary."

As to the heart of the problem, Judge Nasmith said: "No doubt the real fly in the ointment here is the child abuse team at the Hospital for Sick Children as they moved from a position of possible abuse to a diagnosis of abuse. This was a surprising stance for them to take, and I think it underlines the need for
a protection agency receiving reports under (child) protection legislation and for courts in these cases to continue to scrutinize the zeal of the well-meaning people who are so understandably devoted to fighting the scourge that is child abuse. This zeal has created a subtle dynamic that can somehow convert a suspicion of child abuse into a presumption of child abuse."

One can sympathize with children's aid societies because of the heavy pressures they face and their dilemma when confronted by complex medical information provided by experts.

But Nasmith's ruling spells out the high standards to be expected of them, and of the experts involved in the medical and social investigation of child abuse, because of the awesome legal and persuasive powers that they possess.

If Tyler's parents hadn't had sufficient commitment and ability - and the support of OHIP, the Ontario Legal Aid Plan, and a dedicated lawyer - what would the situation be now? Sound familiar?

The dangerous mix between Dr. Charles Smith and the Hospital for Sick Children SCAN team was all too apparent in a case before the Inquiry which I have been referring to as "the Timmin's case" in previous postings.

The case is the subject of a court decision released by Provincial Court Judge Patrick Dunn on July 25, 1991, the year the Ontario Forensic Pediatric Pathology Unit was formed and several years after the Nasmith decision. (Dr. Smith had been at the hospital since 1981);

As Dunn noted: "I am not the only person who believed (the babysitter). The Community believed her too until the Crown's shaking theory surfaced. When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts (Dr. Smith and the Hospital for Sick Children SCAN team) it is riddled with reasonable doubts."Why would the babysitter shake Amber to death?

"Dr. Smith suggested by way of provocation that perhaps Amber was a "bear", like his son, when she woke up," Dunn wrote in his powerful 24-page judgment which resonates to this very day.

"In other words, that the child would be provocative by her irritable manner. This is not true on the facts and it was unfair to suggest the possibility because there was no basis for it."

(Dunn also ruled that, "I cannot find that (The Hospital for Sick Children) properly considered the relationship between the Babysitter and Amber or Amber's gentle and non-provocative disposition," as he blasted both Smith and the SCAN team for failing to obtain "a complete and accurate psycho-social history" - even though they new "the importance" of having it.")

I don't propose to dwell on the details case as I have previously addressed it in several postings on this Blog.

Suffice it to point out for now that Dunn expressed, "serious concerns about the manner in which certain physicians at the Hospital for Sick Children ... formulated their diagnosis." (Dunn stressed that wherever the evidence of the SCAN team members clashed with the defence witnesses, "I prefer to accept the evidence of the defence experts."

Dunn stressed that there were flaws in the Hospital for Sick Children approach - "and hence their opinion about shaking should not be given great weight.

"I am not talking now about whether shaking exists or whether it or some other mechanism killed Amber," he explained."

"I mean that the fact gathering process, the communication procedures, and the documentation of the Hospital for Sick Children doctors, involved in this case are such that I am led to question the conclusion they drew, based on the facts as these erstwhile and well-meaning doctors understood them."

Similar comments were made about Dr. Charles Smith's work by the independent reviewers who studied so many of his cases.

A very dangerous mix indeed."

Sossin makes a compelling argument for removing the Unit from the Hospital - which in this Blogster's view has not demonstrated over many years that it deserves the public trust.

This is yet another tough bullet for Commissioner Goudge to bite."

Harold Levy...hlevy15@gmail.com;

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

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

A first alarm bell: 1990:

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

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

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

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

A second alarm bell; 1991:

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

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

A third alarm bell: As early as 1996:

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

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

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

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

As the transcript indicates:

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

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

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

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

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

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

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

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

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

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

And then it goes on to say:

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

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

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

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

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

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

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

She confirmed that Simmons was the father of the baby.

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

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

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

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

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

MR. JUSTICE JOHN MCMAHON: It would make sense.

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

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

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

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

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

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

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

Harold Levy; hlevy15@gmail.com;

Dr. Smith's Character: The Nasty Side: Part One: A Tendency to Cut Up Other Experts - So To Speak;

From time to time this Blog has taken a look at Dr. Charles Smith's character as demonstrated through the evidence called at the Goudge Inquiry.

One of the prime indicators of a rather nasty side was Dr. Smith's apparent confrontation with an Ontario Provincial Police Officer after being pulled over at night for speeding in which he made a big deal with the officer about how important he was - and threatened to cut off his office's services to dead children in the area if she persisted in giving him the ticket.

The officer was so upset about the incident that her superior brought it to the attention of Dr. James Young, who was then Ontario's chief coroner. (See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police Letter): Parts One to Four: December, 2007);

Another indicator of a nasty side is his attitude to some of his counter-parts in the world of pathology, as revealed from court transcripts.

Like Dr. Sukrita Nag, for example.

Dr. Nag is the neuro-pathologist who performed the autopsy on baby Dustin at Kingston General Hospital on November 18, 1992;

Here is what Dr. Smith had to say about Dr. Nag at the Dustin's father's preliminary hearing on charges of manslaughter and failure to provide the necessities of life.

"This is a botched autopsy," Doctor Smith told Court.

"The report of this autopsy, the paper that this autopsy is written on is not worthy of filing as an exhibit.

It should be filed in the garbage can.

I'm sorry to say it, but I would not accept this report from a resident in pathology. I don't care who signed their name to it.

It is wrong from the word "go."

If you look at the demographics on this report, the information is wrong.

Whoever signed this report either did not read the hospital chart, did not read the report before they signed it or they did not care.

I don't know which of those explanations is correct."

Dr. Smith also told the defence lawyer that he would say these things directly to Dr. Nag if she were present in court.

Something is very wrong with this picture.

Dr. Smith could have drawn the judge's attention to defects in Doctor Nag's work - as was his job - without humiliating her publicly by suggesting it was garbage.

Here was Dr Charles Randal Smith, ho has been criticized by independent experts for the sub-standard quality of his autopsy reports in numerous cases, chastising a colleague who had been assigned the solemn task of performing an autopsy on a deceased child.

Having attacked the professional competence of Dr. Nag, Dr. Smith then went on to lie under oath about Judge Patrick Dunn - the judge who had severely criticized his work in the Amber case - saying that Judge Dunn "in fact told me on more than one occasion -- private conversations -- how hasty he was with the work I had done and others had done, at the hospital."

(Dr. Smith acknowledged during his evidence at the Goudge Inquiry that this alleged conversation with Judge Dunn never occurred.)

Dr. Smith agreed with Commission counsel Linda Rothstein that his characterization of his colleagues work was "uncharitable."

In cross-examination by lawyer James Lockyer, who represents nine families affected by Dr. Smith's work, at the Goudge Inquiry, Smith also acknowledged that his characterization of Dr. John Plunkett in courtroom testimony was "uncharitable".

Dr. Plunkett's views on the harm that can be caused by accidental falls differed significantly from Dr. Smith's

Lockyer cited the following cross-examination of Dr. Smith;

"Are you aware of the work of a Dr. John Plunkett in this area?

Yes.

Do you know him personally?

No.

Just his work then?

Yes.

Have you reviewed his work?

I've seen his papers.

Do you have an opinion on his papers with respect to the force that may cause injury from an accidental fall?

I'm aware of a paper published recently that dealt with that, yes.

And do you agree with his findings?

No, I don't know anyone who does."

Dr. Smith told Lockyer that although he did not remember the specific testimony, "I do accept that this is what I said."

Let's put this in context;

Dr. Smith - who was a highly respected expert witness - (often referred to as the top forensic pediatric pathologist in the country) - had the right to say that he disagreed with Dr. Plunkett's findings.

But he went beyond that to state that Dr. Plunkett's work had been rejected by every other expert in the country, if not the world.

In short he denigrated Dr. Plunkett's work, by treating him as a pariah, whose opinion''s were not worth considering.

Not nice.

Dr. Plunkett was not the only researcher who Dr. Smith denigrated.

There was also Dr. Charles Ferguson - a Winnipeg expert who was one of the many defence experts in the Amber case who took strong issue with Dr. Smith's conclusions that Amber had been shaken to death.

Judge Dunn was extremely impressed by Dr. Ferguson's evidence;

"Turning now to the Canadian specialist called by the defence. Dr. Charles
Ferguson graduated in medicine in 1957, and he's been a pediatrician since 1968," Dunn said in his decision on the Amber case;

"He's currently Director of the Child Protection Centre in Winnipeg Children's Hospital.

Dr. Ferguson has lectured on the mechanics of injury. I consider Dr. Ferguson to be an expert in forensic investigation.

This amazing man, and I say so with great respect, has testified in court proceedings over one thousand one hundred (1,100) times.

I was very impressed by his experience, by his careful method of approaching new or
dubious evidence; by his common sense and by his fairness in looking at all
sides of an issue."

But to Dr. Smith, Dr. Ferguson was merely "an expert from Winnipeg who's regarded as a 'paid mouth'."

As the following transcript of evidence from the Goudge Inquiry shows, Lawyer Lockyer was infuriated by Dr. Smith's characterization of the Winnipeg researcher.

MR. JAMES LOCKYER; Do you remember saying that, sir?

DR. CHARLES SMITH: I don't remember, but I recognize that that was uncharitable, yes.

MR. JAMES LOCKYER: Outrageous, isn't it, an outrageous thing to say? It's not just uncharitable. I'm not going to let you get away with that.

DR. CHARLES SMITH: That was certainly a view that was -- that was held of him, but it's un --

MR. JAMES LOCKYER: By you.

DR. CHARLES SMITH: -- uncharitable. I am -- well, I held that view, yes. You could ask others.

MR. JAMES LOCKYER: Well, perhaps I should ask Justice Dunn.

DR. CHARLES SMITH: The -- no, you keep going with your questions. I was going to --

MR. JAMES LOCKYER: Mm-hm, mm-hm.

DR. CHARLES SMITH: I was going to sort of try and understand your question here, but keep going, I'm sorry. Well, I -- I acknowledged that my testimony was not helpful.The issue as to Shaken Baby Syndrome in this case is an issue that I think many people could debate for years.

MR. JAMES LOCKYER: What does that mean? our testimony was not helpful: What on earth does that mean? You -- you mean -- doesn't it simply mean that your testimony had the potential to lead to a miscarriage of justice? "Unhelpful" is an odd word to
use, Mr. Smith.

DR. CHARLES SMITH: No, I -- I believe that that's a correct word.

MR. JAMES LOCKYER: Mm-hm.

DR. CHARLES SMITH: I certainly recognize that --

MR. JAMES LOCKYER: All right.

DR. CHARLES SMITH: -- I was dogmatic and defensive, yes...";

Dr. Smith has acknowledged in his evidence that he believed his duty was to help the prosecution win the case.

How dare he suggest in court that Dr. Ferguson was a hired gun?

Dr. Smith's ultimate degradation of a colleague while giving evidence in court would appear to be his comments on Dr. Rex Ferris, his nemesis.

Dr. Ferris is a forensic pathologist, whose opinion that Sharon had been savaged by a dog - and not by stab-wounds from knives and scissors as Smith had opined - had helped exonerate the child's mother.

The transcript of lawyer Lockyer's cross-examination of Dr. Smith about his characterization of Ferris to the Court tells all - including his failure to mention his involvement with Ferris in Sharon's case and his provision of misleading information about Ferris to the Court;

MR. JAMES LOCKYER: And then at the bottom of this page, sir, you're asked about Dr. Ferris:

"Are you aware of Dr. Rex Ferris?

Yes.

Do you respect Dr. Ferris' work?

No.

And may I ask why not?

I don't know anyone in the area of pediatric forensic work in Canada who respects his work in the area of pediatric forensic work."

At line 15:

"Is there perhaps, Dr. Smith, a publication or a particular case in which you've been involved in that leads you to say you don't respect Dr. Ferris' work?"

Your answer to that should've have been, Yes, shouldn't it, don't you think?

DR. CHARLES SMITH: Well --

MR. JAMES LOCKYER: Sharon's case.

DR. CHARLES SMITH: I'm...

MR. JAMES LOCKYER: But you didn't say that, did you?

DR. CHARLES SMITH: I -- I had not --

MR. JAMES LOCKYER: Chances are the cross-examiner wouldn't have know about Sharon's case at this point in time, but you sure did -- and Dr. Ferris' involvement in it.

DR. CHARLES SMITH: I'm sorry, what's your question?

MR. JAMES LOCKYER: I say your answer to that question --

DR. CHARLES SMITH: Mm-hm.

MR. JAMES LOCKYER: -- should have been "yes". Is there, perhaps, a publication or a particular case in which you've been involved in that leads you to say you don't respect Dr. Ferris' work?

DR. CHARLES SMITH: I -- I answered it as best I --

MR. JAMES LOCKYER: Mm-hm.

DR. CHARLES SMITH: -- remembered it at that time.

MR. JAMES LOCKYER: Well, let's see how you answered it:

"My struggle with the question, Your Honour, is whether it will get me in trouble legally if I answer it.

Q: What kind of trouble? Liable and slander, says the Court." And then the Court says: "Is there something you can have an intellectual disagreement with while still respecting another doctor's ability so it wouldn't be considered to be some kind of professional attack?" And you said: "Obviously, I know Rex Ferris." And then you say: "I mean James Ferris is his proper name, and I've known him for twenty 20) years. I've never seen him give an opinion on a pediatric case in which
I think he is close to reasonable. He doesn't practice pediatric forensic pathology." There's a real irony to that, isn't there, because nor did you? And then you go on: "He was excluded from doing so in British Columbia for many years before he lost his position in pediatric forensic pathology in British Columbia." nd that's simply not true, is it, sir.

DR. CHARLES SMITH: No, that's what I understood.

MR. JAMES LOCKYER: He just changed positions. He just moved on in his life.

DR. CHARLES SMITH: No, that's not what I -- what I was referring to, as best I can recall.

MR. JAMES LOCKYER: "And his knowledge of pediatric pathology, in general, is not of a level that I think he has any special expertise in the area." I mean as you read this kind of statement by you now, sir, under oath, it must make you shiver,
17 doesn't it? Like you could be describing yourself, couldn't you? You could say -- you -- you'd say that about yourself now. You have no special expertise in the area; any more than anyone else.

DR. CHARLES SMITH: No, I believe I have expertise in pediatric pathology, in general.

MR. JAMES LOCKYER: Now you're talking bout pediatric forensic pathology, sir; that's the -- that's the phrase that you've been using, isn't it, as you testify?
Do you see that? line 4, line 7, right? And then you say at line 15 "I just happen to think that in pediatric forensic pathology, I have no respect for Dr. Ferris' opinions. I cannot give you any statements about his work in adult forensic pathology. It's the area that was car -- his career and he worked in that for
decades before retiring, but in the pediatric realm, I do not respect his opinions though he is a very nice man."

MR> JAMES LOCKYER: Do you remember saying that, sir, about this man?

DR. CHARLES SMITH: No, I don't, but I read it, and I accept that I made those statements.

MR. JAMES LOCKYER: To me, that just shows the arrogance of yourself, sir, in the days that you were testifying as a purported pediatric forensic pathologist, am I right?


DR. CHARLES SMITH: I -- I do not interpret that to be arrogance.

MR. JAMES LOCKYER: Mm-hm.

DR. CHARLES SMITH: I was asked an opinion. I was asked a question about Dr. Ferris. I answered it truthfully, but very uncharitably and unkindly, but I answered truthfully the question that I was asked."

Dr. Smith's willingness to disparage genuine forensic pathologists and others who disagree with him tells us a great deal about his character.

But it is the fact that he disparaged them from the witness box when he was selling the Crown's case - with the risk that an innocent parent or caregiver could be sent to jail - that disturbs me the most.

This is about more than Dr. Smith's assault on the reputation of some professionals.

It's about miscarriages of justice - and how easily they can be caused;

Next posting: Dr. Smith's character: The nasty side; Part Two;

Harold Levy...hevy15@gmail.com;

"System Failure": A Journalist's Perspective;

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

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

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

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

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

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

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

There is certainty now about two things.

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

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

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

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

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

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

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

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

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

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

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

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

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

Sharon had been savaged.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Begbie is not alone in his doubt.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eventually, Young dismissed the complaints against Smith.

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

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

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

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

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

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

The inquiry heard that:

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

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

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

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

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

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

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

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

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


As I said in the previous posting:

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

For shame!

Harold Levy...hlevy15@gmail.com;