Part Four: Closing Submissions: The Government Is Responsible For Destroying The Families; It Must Try To Repair The Damage;

"WE HAVE A MORAL OBLIGATION TO THE CHILDREN WHO MAY HAVE BEEN WRONGLY SEPARATED FROM THEIR PARENTS AS A RESULT OF THE OPINIONS OF DR. SMITH AND DR. CAIRNS.

TO ABDICATE OUR RESPONSIBILITIES IN RESPECT OF THOSE PEOPLE WOULD BE IRRESPONSIBLE AND IMMORAL AND ARGUABLY IN BREACH OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD SUCH THAT “THIS MUST BE DONE;"

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

"DR. SMITH IN HIS EVIDENCE SUGGESTED THAT THERE MAY BE THREE TO FOUR OTHER CASES WHERE HE GAVE EVIDENCE THAT WERE NOT THE SUBJECT OF CRIMINAL PROCEEDINGS BUT WERE THE SUBJECT OF CHILD PROTECTION PROCEEDINGS.

GIVEN THE FRAILTIES OF DR. SMITH’S CREDIBILITY AND HIS HISTORY OF PROVIDING UNTRUE INFORMATION UNDER OATH, DEFENCE FOR CHILDREN INTERNATIONAL SUBMITS THAT THERE MUST BE A SYSTEMATIC REVIEW OF HIS WORK TO IDENTIFY CASES IN WHICH HIS OPINION MAY HAVE AFFECTED THE OUTCOME OF A CHILD PROTECTION PROCEEDING."

-------------------------------------------------------------------------------------
LAWYER SUZAN FRASER: CLOSING SUBMISSIONS;
-------------------------------------------------------------------------------------

The Goudge Inquiry has heard disturbing evidence about surviving children who have wrongfully been removed from their families as a result of Dr. Charles Smith's flawed opinions.

One of the toughest challenges will be to identify these children in the context of both criminal and child welfare proceedings.

Lawyer Suzan Fraser argues in her closing submissions on behalf of "Defence For Children International Canada" that, "we have a moral obligation to the children who may have been wrongly separated from their parents as a result of the opinions of Dr. Smith and Dr. Cairns."

"To abdicate our responsibilities in respect of those people would be irresponsible and immoral and arguably in breach of the United Nations Convention on the Rights of the Child such that “this must be done,” Fraser continues.

Defence For Children International accepts this position and submits that in order for confidence to be restored in pediatric forensic pathology, the Government must create a way to right a wrong.

Dr. Smith, through this inquiry, agreed to cooperate by identifying circumstances in which he gave evidence.

Dr. Smith in his evidence suggested that there may be three to four other cases where he gave evidence that were not the subject of criminal proceedings but were the subject of child protection proceedings.

Given the frailties of Dr. Smith’s credibility and his history of providing untrue information under oath, Defence For Children International submits that there must be a systematic review of his work to identify cases in which his opinion may have affected the outcome of a child protection proceeding.

At the child protection roundtable, (held by the Goudge Inquiry) Professor Bala proposed that legislation be enacted to provide for the identification of children who may have been affected by Dr. Smith’s work and the disclosure of that information to them."

Fraser,who advocates that corrective measures be advanced under a regulatory framework rather than waiting for legislative reform, says the identification process will be difficult because there are 53 different children’s aid societies.

She wants wants Justice Goudge to recommend the appointment of a task force which has the power and resources to identify the cases, review the pathology, notify the children and families involved,and then attempt to mediate s solution which is in the child's interest.

This appears to be an extremely difficult but manageable task if the government admits its responsibility for the mess and determines to rectify it.

Innocent parents would not have had their children seized from them - and children would not have gone through the horror and disruption of being taken away from their families without the intervention of government agents including police, prosecutors, social workers and children's aid officials in these cases;

This Blogster suspects that the Ontario government will be reluctant to undertake such a difficult and costly task.

I hope Justice Goudge will use his moral authority - having heard all of the disturbing evidence about destroyed families - to embarrass the government into taking prompt action.

Harold Levy...hlevy15@gmail.com;

Part Three: Closing Submissions: Miscarriages of Justice And Ontario's Child Welfare System;

"CHALLENGES EXIST BECAUSE OF THE LACK OF RESOURCES AND PRESTIGE YET THE EFFECTS OF A MISCARRIAGE OF JUSTICE IN A CHILD PROTECTION PROCEEDING ARE UNIMAGINABLE."

LAWYER SUZAN FRASER IN HER CLOSING SUBMISSIONS TO THE GOUDGE INQUIRY ON BEHALF OF DEFENCE FOR CHILDREN INTERNATIONAL CANADA.

During the course of the Goudge Inquiry I have been stunned by the collateral damage caused by child protection authorities with respect to siblings when a parent is wrongly accused of murdering a child.

In most cases the damage happened at the outset - long before any conviction - while the accused parent was supposed to be presumed innocent.

We heard stories of children being seized from their still grieving parents and placed under the care and protection of a Children's Aid Society.

We heard stories of children baby's taken away from their loving mothers at birth and placed with strangers.

We heard about children who were ultimately put up for adoption into other families -the parents may never get them back.

Lawyer Suzan Fraser, who represents "Defence For Children International Canada" has done an excellent job at the Inquiry of reminding us that miscarriages of justice are not limited to the cases of wrongly convicted accused person;

Fraser reminds us in her closing submissions that Ontario's child welfare system is prone to miscarriages of justice too.

"The child welfare system has always been a poor cousin to the criminal justice system with fewer resources and less prestige than the criminal justice system," says Fraser.

"Challenges exist because of the lack of resources and prestige yet the effects of a miscarriage of justice in a child protection proceeding are unimaginable."

Yes, "unimaginable" is a very strong word.

But how else can you describe the horror experienced not only by the wrongly accused parent - but that experienced as well by the sibling that is being torn away from his or her parent in the circumstances;

Fraser also does a public service by pointing out that tunnel vision also contributes to miscarriages of justice in the child welfare system as she submits that "the need to guard against tunnel vision is as important in child welfare investigations as in criminal proceedings."

She also cautions that "social workers are slow to revise their judgments" - an apparent reference to Dr. Charles Smith who proved to be most reluctant to change an opinion once formed.

"Social workers need a greater acceptance of their fallibility and a willingness to consider that the judgements and decisions are wrong," Fraser adds.

"To change your mind in the light of new information is a sign of good practice, a sign of strength not weakness."

Fraser would like to see Justice Goudge make several recommendations aimed at preventing miscarriages of justice in the province's child welfare system, including:

0: Funding for counsel in child welfare proceedings;
0: Development and support of effective legal advocates for both parent and child in the child welfare proceeding through access to education initiatives;
0: Access to defence pathologists;
0: Funding for expert reports; and
0: Guarding against tunnel vision and confirmation bias.

Justice Goudge would do well to heed Fraser's advice.

Next posting: Part Four: Closing Submissions: And what about the children who were permanently given away?

Harold Levy...hlevy15@gmail.com;

Part One: Closing Submissions; Top Leadership of Chief Coroner's Office Cited For Failing To Prevent Harm To Children and Miscarriages Of Justice;

"DCI SUBMITS THE COMMISSION SHOULD FIND THAT DR. JAMES YOUNG, DR. JIM CAIRNS AND DR. CHARLES SMITH CONTRIBUTED TO THE CRISIS IN PEDIATRIC FORENSIC PATHOLOGY BY VIRTUE OF THE CULTURE OF THEIR LEADERSHIP..."EACH WAS COMMITTED TO EITHER A PERSONAL INTEREST OR IDEOLOGY;"

LAWYER SUZAN FRASER; CLOSING SUBMISSIONS TO GOUDGE INQUIRY; ON BEHALF OF "DEFENCE FOR CHILDREN INTERNATIONAL CANADA: (DCI-CANADA);

Among the thousands of pages of submissions filed at the Goudge Inquiry, one brief deserves particular attention;

It is filed by Toronto lawyer Suzan Fraser who represents an organization called "Defence for Children International Canada (DCI-Canada);

Fraser's memorable cross-examination of Dr. Charles Smith is discussed is a previous posting called: "Lawyer Suzan Fraser's brilliant cross-examination of Dr. Charles Smith: A powerful voice on behalf of children" which was posted on Feb. 2, 2008;

She focused on the tragic disruption caused within families when siblings were seized by child protection authorities after a parent was wrongly charged with killing a child because of the flawed opinion of Dr. Charles Randal Smith;

Fraser's powerful voice on behalf of children is heard once again in closing submissions that suggest the children and their families were betrayed by a Coroner's office which failed to rein Dr. Smith in;

Fraser wants Commissioner Stephen Goudge to find that the institution of the Office of the Chief Coroner was, "an insular and unaccountable organization and the individuals in charge of pediatric death investigations failed personally to prevent miscarriages of justice and a crisis in pediatric forensic pathology."

And that's just for a start;

Fraser adds that her organization's experience with child deaths - as corroborated by the evidence heard at the Inquiry - "confirms that systems designed to serve and protect children fail for a number of reasons, including systemic causes and the attitudes and actions of individuals, particularly those in charge."

"An organizational culture that shuns openness and accountability is often a major cause when institutions fail children," she says."

Fraser argues that the only way Justice Goudge can understand how the Chief Coroner's Office became "so insular" is to identify "the contributions of individuals as well as systemic and structural factors."

More specifically, she contends that, "confronting the flawed organizational culture within the Chief Coroner's Office requires that the Commission make findings in respect of the role of Dr. (James) Young (former Chief Coroner of Ontario), Dr. (James) Cairns, former Deputy Chief Coroner) and Dr. Smith."

"We believe that addressing their contributions to the failure is the first step in restoring accountability and openness to the coroner’s office and pediatric forensic pathology in Ontario," she says. "This in turn will help to restore confidence in the coroner’s office and pediatric forensic pathology in Ontario."

Here is a portion of the section in which Fraser lays out the alleged failure of Young, Cairns and Smith for Commissioner Goudge:

"DCI submits the Commission should find that Dr. James Young, Dr. Jim Cairns and Dr. Charles Smith contributed to the crisis in pediatric forensic pathology by virtue of the culture of their leadership," the section begins;.

"Each was committed to either a personal interest or ideology," it continues.

"For Dr. Young, it was the protection of his office.

For Dr. Cairns, it was the pursuit of an improved death investigation for children based on his vision of what was right.

For Dr. Smith, it was to carve out a niche as the leading pediatric forensic pathologist and protect his position within the Hospital for Sick Children.

Each needed each other to fulfill their pursuits.

The product was an organizational culture that was so insular, so immune to criticism and so lacking in accountability that someone who was dogmatic, arrogant and ignorant could thrive.

Dr. Smith has admitted that he was all those things and more.

All things that speak to both his competency and his ethics:
he was an advocate;
he was an advocate for the Crown;
he gave confusing testimony;
he went beyond his expertise;
he saw himself as a member of the prosecution team; and
he was profoundly ignorant.


Their shared vision, exposing child abuse by death investigation, was championed by the media and fuelled a moral panic that parents were getting away with murder.

The panic appears to have reached its zenith in the Spring and Summer of 1997, which saw:

0: the Ontario Child Mortality Task Force released its interim report in March, 1997 and Final report in July, 1997;

0:The Toronto Star ran its “Cry for the Children” series in March, April and May, 1997;

0: the inquests into the deaths of Shanay Johnson and Kasandra;

0: The Toronto Star call for inquests to be mandatory for children who die while under the supervision of the CAS;

0: And Jordan Heikamp dies of starvation on June 23, 1997 at the age of 5 weeks.

The climate was ripe for absolute trust to be placed in the death investigation system.

During this wave of moral panic and absolute trust, investigations were being conducted into the deaths of Joshua, Jenna, Sharon, Nicholas and Jordan, a preliminary inquiry was conducted into the death of Taylor and inquests were conducted into the death of Kasandra and Shanay Johnson who died as a result of violence by her caregiver.

In our submission, in this insular culture, together with the unique opportunity afforded by society’s increasing awareness and repugnance of child abuse, Dr. Smith flourished.

It is important to recognize that the impact of this institutional culture is far-reaching.

First, the experiences of those investigated, charged and in some cases convicted as a result of Dr. Smith are well understood.

Second, surviving siblings and future born children were also affected.

The overview reports provide some detail to their experiences.

A chart, summarizing what is known about the child welfare proceedings is attached as Appendix “B” to these submissions.

It is fair to say, that as the result of Dr. Smith’s opinion at least 17 children were taken into the care of the state and three children were placed for adoption.

Those not adopted, appear to have been ultimately returned to their families after the criminal charges were dealt with by the court.

Third, the findings in these cases appear to have influenced the academic literature.

Dr. Pollanen’s article “Fatal Child Abuse Maltreatment Syndrome” appears to draw its conclusions from many of the cases here.

Finally, Dr. Smith’s inquest work led to 73 recommendations in the Kasandra inquest7 which formed a platform for the reform of the Child and Family Service Act in May, 19998.

Dr. Cairns and Dr. Young introduced Dr. Smith as the leading authority in either the country or the continent.

The only pediatric forensic pathology training in which Dr. Smith participated was training given by himself.

He was invited by (The Chief Coroner's Office) throughout the 1980’s and 1990’s to deliver training and the Coroner’s office encouraged him to develop expertise in pediatric forensic pathology.

It was advantageous for (the Office of the Chief Coroner of Ontario) to have someone with expertise in Child Abuse and Neglect. They needed Dr. Smith and Dr. Smith needed them.

Next Posting:

Part Two: Closing Submissions; End secret surveillance of parents while being informed of the circumstances of their child's death; Important recommendation from Defence For Children International Canada;

Harold Levy...hlevy15@gmail.com;