"INITIALLY, THE REPORT STATES, THE BABYSITTER DENIED ANY RESPONSIBILITY FOR THE MURDER AND INSISTED THAT JENNA'S MOTHER, BRENDA WAUDBY, WAS THE ONE RESPONSIBLE.
BUT EVENTUALLY THE BABYSITTER BEGAN TO "SNIFFLE," THE REPORT STATES, COVERING HIS FACE WITH HIS HANDS.
HE WOULD EVENTUALLY TELL THE SERGEANT THAT HE DID ASSAULT JENNA, PUNCHING HER ABOUT SIX TIMES DURING THE EVENING AND SEXUALLY ASSAULTING HER."
REPORTER SARAH DEETH; PETERBOROUGH EXAMINER;
-------------------------------------------------------------------------------
The Peterborough Examiner has revealed details of the undercover operation that resulted in the arrest and subsequent manslaughter plea by J.D. the babysitter - Baby Jenna's teenage killer;
Brenda Waudby, Baby Jenna's mother, was initially charged with the murder - in spite of her protests to the police that J.D, was the real killer. Dr. Charles Smith came up with an erroneous time of death which gave her exclusive access to her daughter at the time the fatal blows were inflicted.
(Let it not be forgotten that this successful sting operation was conducted by the same police force - the Peterborough Lakefield force - that was so desperate to get incriminating evidence against Ms. Waudby (of which there was none) - that it sent an undercover police officer into meetings of her Narcotics Anonymous group.)
The Examiner story by reporter Sarah Deeth runs under the heading, "Casino Rama sting used to coax baby killer's confession."
"A police report obtained by The Examiner outlines how an undercover operation was used to gather the evidence needed to charge 21-month-old Jenna's babysitter with murder," the story, published in today's paper, begins;
"The report also outlines the last hours of the toddler's life. She died Jan 2, 1997," it continues;
"The babysitter can't be named under the Youth Criminal Justice Act because he was 14 when he committed the crime.
He pleaded guilty to manslaughter December 2006. He served 22 months in jail and was released from custody Dec. 31 to serve an 11-month open custody sentence.
He was also charged with two counts of sexual assault, which were later withdrawn by the Crown attorney.
In the report, the babysitter confesses that he had intercourse with Jenna a few days before her death and inappropriately touched her on three or four occasions.
Jenna's mother, Brenda Waudby, was originally charged with Jenna's murder in 1997.
In September 2005 city police Sgt. Larry Charmley, then a detective, oversaw an undercover operation using an undercover officer from another police service who would eventually befriend the babysitter.
Police hatched a plan to introduce the babysitter to an undercover officer by making the babysitter believe he won a random survey that included a trip to Casino Rama in a limousine and $200 to spend, the report states.
On Oct. 28, 2005, the babysitter went to the casino with three others, all of whom were undercover police officers.
The names of all undercover officers were blacked out in the copy of the report obtained by The Examiner.
The babysitter and the primary undercover officer formed a strong relationship, the report states.
The officer began telling the babysitter that he was part of a sophisticated criminal organization.
The babysitter was invited to participate in criminal activity, the report states, with the assumption that he'd be paid for it.
The "criminal activity" was actually staged scenarios by the police, which ranged from dinner outings, keeping observations for the officer while the officer was conducting "criminal activity," to participating in criminal activity on his own, the report states.
The report states the babysitter was paid from as little as $50 to $250 for his work, the report states. Police orchestrated a total of 18 scenarios.
During this time the undercover officer talked a lot about trust with the babysitter, the report states.
On Dec. 14, 2005, Charmley and the officer staged a vehicle stop while the babysitter was a passenger in the officer's car.
During the stop, Charmley mentioned that he was still investigating Jenna's death and wanted the babysitter to reconsider taking the polygraph.
This led to a conversation between the officer and the babysitter about police interest in the babysitter, and how it could affect the phoney criminal organization and whether the babysitter should meet the organization's boss.
A final scenario was arranged, in which the babysitter would meet the organization's "boss," an undercover police sergeant.
Set up at a Markham hotel room, the babysitter and the officer met with the sergeant in one room, while police set up in the room next door.
Both rooms were prepared for audio and video recording, the report states.
During the meeting, the undercover sergeant talked about the need for people in his organization to be 100 per cent truthful and said he couldn't have anyone in his organization if police were interested in them.
The sergeant told the babysitter he was aware of the vehicle stop and could take care of the babysitter's problem, if he wished.
The sergeant also said that he had connections and could arrange for someone else to take responsibility for Jenna's murder. He said he had inside information and knew the police were looking at the babysitter for the murder.
Initially, the report states, the babysitter denied any responsibility for the murder and insisted that Jenna's mother, Brenda Waudby, was the one responsible.
But eventually the babysitter began to "sniffle," the report states, covering his face with his hands.
He would eventually tell the sergeant that he did assault Jenna, punching her about six times during the evening and sexually assaulting her.
He told the undercover officers he had never told anyone about this, and it was the biggest mistake he had ever made.
He said he poked Jenna more with his finger more times than he punched her, and that the punches weren't complete punches, but would have broken a few ribs.
The babysitter said he began punching and jabbing at Jenna after his mother left him alone with the children, before he took Jenna and her sister outside to play.
That's when Jenna hit her head on the slide, the babysitter told the sergeant. Her head was burned by a hairdryer when the babysitter tried to blow it dry because it was wet.
"She just looked a mess, right," the report states the babysitter said. "And I was like f---. Poke poke. I hit her a couple of times again."
Two of the babysitter's friends came over at about 11 p. m., the report states, and the babysitter brought Jenna out again.
"Then I bring her out because she was coughing and s---. And then I, my friends were like oh she doesn't look well. So I took her back in, poked her down. She wouldn't stay down so I hit her down so that she would stay down."
Later, after his friends left, the babysitter stated that he brought Jenna into the bathroom and she fell back, banging her head on a heat register.
The report states the undercover detective drove the babysitter home.
On the way home, the babysitter directed the officer to Mountain Ash Road, to show him where Jenna had died.
Twelve days later, on Dec. 28, 2005, police believed they had enough evidence to charge the babysitter.
He was arrested at a McKellar Street home at 4:30 p. m.
The babysitter refused to make any statements during his police interview, the report states, and Charmley proceeded to tell him about the details of the investigation and the information that led to his arrest.
The babysitter made a few comments, the report states, but generally he just denied that he had done anything.
He also said that he had lied to the undercover sergeant and already knew that his friend was an undercover detective.
The end of the report states that it's imperative that the report not be released to the media to ensure the babysitter receives a fair trial. It states it's also important not to release the information in order to keep the identities of the undercover officers involved a secret, for their protection."
Harold Levy...hlevy15@gmail.com;
Showing posts with label jenna. Show all posts
Showing posts with label jenna. Show all posts
Tuesday, March 10, 2009
Sunday, May 11, 2008
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;
-------------------------------------------------------------------------------
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;
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;
-------------------------------------------------------------------------------
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;
Tuesday, April 22, 2008
Regulating Doctors Who Practice In The Area Of Forensic Pathology: Is The Ontario College Up To The Job?
FILED EARLY FOR WEDNESDAY APRIL 23, 2008;
"THIS STRONGLY SUGGESTS THAT A BODY CHARGED WITH GENERAL OVERSIGHT OF THE MEDICAL PROFESSION AS A WHOLE MAY NOT BE IDEALLY SUITED FOR OVERSIGHT OF SPECIFIC ISSUES ARISING FROM THE ROLE PLAYED BY FORENSIC PATHOLOGY IN THE JUSTICE SYSTEM."
CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;
-------------------------------------------------------------------------------
One of the crucial questions raised by the evidence called at the Goudge Inquiry is why the College of Physicians And Surgeons of Ontario did not do a better job of protecting the public from Dr. Charles Smith.
The Affected Families Group suggests, in its closing submissions, that the College did not have a sufficient knowledge of issues involving forensic pathology to do a proper job.
"It is arguable that the College of Physicians and Surgeons of Ontario is the only body that ever exerted anything that remotely resembled effective oversight of Dr. Smith," the Group's closing submissions on this topic begin.
"Following the decision of the Health Professions Appeal and Review Board in February, 2000, which determined that the College did have jurisdiction to consider DM’s (the babysitter's father) complaint, the Complaints Committee dealt with the merits of complaints by DM, Brenda Waudby, and Maurice Gagnon, and required Dr. Smith to attend before the panel of the Committee to be cautioned in all three cases," they continue.
"The College considers a reprimand to be a significant regulatory sanction, according to Dr. Gerace. (College Registrar)
Moreover, the Complaints Committee, assisted by its expert panel, appears to have reached conclusions on Dr. Smith’s forensic pathology work in all three cases which parallels evidence heard by this Inquiry:
0: In the Amber case, the panel concluded that Dr. Smith’s work was not as thorough as it should have been and that he was overly dogmatic in stating his conclusions;
0: In the Jenna case, the panel criticized Dr. Smith’s failure to review clinical information, as well as his failure to conduct an adequate examination with respect to sexual assault, and, most specifically, concluded that his estimate of the time during which the fatal injuries were received was far too broad;
0: In the Nicholas case, the deficiencies noted by the panel were similar to many of those outlined by Mr. Gagnon in his initial letter of complaint to the Chief Coroner's Office.
However, there were important deficiencies in the results of the complaints in each case.
First, and most important, the Complaint Committee’s conclusion in all three cases was that Dr. Smith “met the standards expected of a pathologist assisting the coroner in an investigation”.
To the contrary, this Inquiry has heard expert evidence in all three cases that Dr. Smith’s opinions and testimony were deeply flawed and did not meet forensic pathology standards.
This strongly suggests that a body charged with general oversight of the medical profession as a whole may not be ideally suited for oversight of specific issues arising from the role played by forensic pathology in the justice system.
Second, the complaint committee clearly did not reach the appropriate conclusion with respect to Dr. Smith’s handling of the hair in the Jenna case.
The Review Board's conclusions on appeal completely contradict the evidence heard before this Inquiry.
In retrospect, this appears to be because the expert panel accepted Dr. Smith’s explanation in isolation, not being aware of information provided by DC Charmley (Peterborough police officer) to the College Investigator, Ms. Doris, or of the explanation provided by Dr. Smith to Dr. Cairns.
Third, the expert panel appears to have been unaware that at the time of Dr. Cohl’s interview with Dr. Smith (for the College H.L.), he had been suspended by the Chief Coroner's Office from doing coroner’s autopsies in criminally suspicious death cases.
Indeed, the Minutes of that interview suggest that Dr. Smith was less than candid about his status.
Had the College been aware of his suspension, the Complaint Committee might well have determined to take further investigatory steps."
I read with interest the College's position that a reprimand is a significant regulatory sanction.
The reality is that reprimands are not considered important enough to be posted on the College's Web-site.
Dr. Smith was therefore shielded from the scrutiny from anybody - or any other medical jurisdiction - that might be interested in his professional record.
The information that Dr. Smith was found to have demonstrated serious deficiencies in his work in three cases is nowhere to be found on the College Web-Site.
If you go to the that site, and check under "findings" you will be told "no past findings."
Of even greater concern to this Bloggist is that Dr. Smith's "status" is listed as "active" on the "terms and conditions" section of the site - and a note indicates that "Dr. Charles Randal Smith has entered into a voluntary undertaking not to practice forensic pathology in Ontario, prior to April 25, 2008.
That undertaking expires on Friday.
One way to judge whether the Ontario College has any teeth will be whether it brings any discipline proceedings against Dr. Smith in connection with allegations at the Inquiry that he mislead College investigators looking into the three complaints.
Harold Levy...hlevy15@gmail.com;
"THIS STRONGLY SUGGESTS THAT A BODY CHARGED WITH GENERAL OVERSIGHT OF THE MEDICAL PROFESSION AS A WHOLE MAY NOT BE IDEALLY SUITED FOR OVERSIGHT OF SPECIFIC ISSUES ARISING FROM THE ROLE PLAYED BY FORENSIC PATHOLOGY IN THE JUSTICE SYSTEM."
CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;
-------------------------------------------------------------------------------
One of the crucial questions raised by the evidence called at the Goudge Inquiry is why the College of Physicians And Surgeons of Ontario did not do a better job of protecting the public from Dr. Charles Smith.
The Affected Families Group suggests, in its closing submissions, that the College did not have a sufficient knowledge of issues involving forensic pathology to do a proper job.
"It is arguable that the College of Physicians and Surgeons of Ontario is the only body that ever exerted anything that remotely resembled effective oversight of Dr. Smith," the Group's closing submissions on this topic begin.
"Following the decision of the Health Professions Appeal and Review Board in February, 2000, which determined that the College did have jurisdiction to consider DM’s (the babysitter's father) complaint, the Complaints Committee dealt with the merits of complaints by DM, Brenda Waudby, and Maurice Gagnon, and required Dr. Smith to attend before the panel of the Committee to be cautioned in all three cases," they continue.
"The College considers a reprimand to be a significant regulatory sanction, according to Dr. Gerace. (College Registrar)
Moreover, the Complaints Committee, assisted by its expert panel, appears to have reached conclusions on Dr. Smith’s forensic pathology work in all three cases which parallels evidence heard by this Inquiry:
0: In the Amber case, the panel concluded that Dr. Smith’s work was not as thorough as it should have been and that he was overly dogmatic in stating his conclusions;
0: In the Jenna case, the panel criticized Dr. Smith’s failure to review clinical information, as well as his failure to conduct an adequate examination with respect to sexual assault, and, most specifically, concluded that his estimate of the time during which the fatal injuries were received was far too broad;
0: In the Nicholas case, the deficiencies noted by the panel were similar to many of those outlined by Mr. Gagnon in his initial letter of complaint to the Chief Coroner's Office.
However, there were important deficiencies in the results of the complaints in each case.
First, and most important, the Complaint Committee’s conclusion in all three cases was that Dr. Smith “met the standards expected of a pathologist assisting the coroner in an investigation”.
To the contrary, this Inquiry has heard expert evidence in all three cases that Dr. Smith’s opinions and testimony were deeply flawed and did not meet forensic pathology standards.
This strongly suggests that a body charged with general oversight of the medical profession as a whole may not be ideally suited for oversight of specific issues arising from the role played by forensic pathology in the justice system.
Second, the complaint committee clearly did not reach the appropriate conclusion with respect to Dr. Smith’s handling of the hair in the Jenna case.
The Review Board's conclusions on appeal completely contradict the evidence heard before this Inquiry.
In retrospect, this appears to be because the expert panel accepted Dr. Smith’s explanation in isolation, not being aware of information provided by DC Charmley (Peterborough police officer) to the College Investigator, Ms. Doris, or of the explanation provided by Dr. Smith to Dr. Cairns.
Third, the expert panel appears to have been unaware that at the time of Dr. Cohl’s interview with Dr. Smith (for the College H.L.), he had been suspended by the Chief Coroner's Office from doing coroner’s autopsies in criminally suspicious death cases.
Indeed, the Minutes of that interview suggest that Dr. Smith was less than candid about his status.
Had the College been aware of his suspension, the Complaint Committee might well have determined to take further investigatory steps."
I read with interest the College's position that a reprimand is a significant regulatory sanction.
The reality is that reprimands are not considered important enough to be posted on the College's Web-site.
Dr. Smith was therefore shielded from the scrutiny from anybody - or any other medical jurisdiction - that might be interested in his professional record.
The information that Dr. Smith was found to have demonstrated serious deficiencies in his work in three cases is nowhere to be found on the College Web-Site.
If you go to the that site, and check under "findings" you will be told "no past findings."
Of even greater concern to this Bloggist is that Dr. Smith's "status" is listed as "active" on the "terms and conditions" section of the site - and a note indicates that "Dr. Charles Randal Smith has entered into a voluntary undertaking not to practice forensic pathology in Ontario, prior to April 25, 2008.
That undertaking expires on Friday.
One way to judge whether the Ontario College has any teeth will be whether it brings any discipline proceedings against Dr. Smith in connection with allegations at the Inquiry that he mislead College investigators looking into the three complaints.
Harold Levy...hlevy15@gmail.com;
Affected Families Group Response to Dr. Charles Smith's Closing Submissions On The "Sharon" and "Jenna" Cases: An Enlightening Document;
In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;
Lawyers Peter Wardle and Julie Kirkpatrick reply to Smith's defence of his conduct int these two cases in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the Affected Families response begins:
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Sharon's mother by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
Lawyers Peter Wardle and Julie Kirkpatrick reply to Smith's defence of his conduct int these two cases in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the Affected Families response begins:
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Sharon's mother by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
Monday, April 21, 2008
The Affected Families Group's Response To Dr. Smith's Closing Submissions On The "Sharon" and "Jenna" Cases: An Enlightening Document;
In his closing Submissions, Dr. Charles Smith responded to allegations made against him by lawyers for the Affected Families Group in connection with the "Sharon" and "Jenna" cases;
The reply to Smith's defence of his conduct in these cases is made by lawyers Peter Wardle and Julie Kirkpatrick in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the response begins in the context of Sharon's case.
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Louise Reynolds by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
The reply to Smith's defence of his conduct in these cases is made by lawyers Peter Wardle and Julie Kirkpatrick in a cogent document entitled, "Response to Dr. Smith’s Submissions Regarding the Sharon and Jenna Cases."
"The central fallacies in Dr. Smith’s submissions with respect to the Sharon and Jenna cases are that his conduct was reasonable, and had minimal impact on the course of the criminal proceedings," the response begins in the context of Sharon's case.
Sharon;
"Dr. Smith argues in his submissions that his conduct and opinions in this case were reasonable, primarily on the basis that (i) he had limited experience with dog attacks and penetrating wounds; (ii) the dog attack theory was not seriously raised until 6 months after Sharon’s death; and (iii) he was not the only one to reach this opinion," the response continues;
"For the reasons set out below, it is submitted that these arguments are fallacious.
(i) limited experience
As a matter of simple logic, Dr. Smith’s lack of experience cannot be used to support the reasonableness of his opinion!
The most it could demonstrate is that he may have had an honest belief in his own erroneous opinion at the time it was given.
That is a matter of debate, given Dr. Smith’s own admissions regarding his understanding of his role in the judicial process.
(ii) dog attack theory never seriously raised;
First, Dr. Milroy’s opinion regarding the unreasonableness of Dr. Smith’s opinion was not based on what Dr. Smith should have done with information given to him by the police.
Rather, it was based on the pathology of the wounds on Sharon’s body, such as:
0: the distribution of the injuries;
0: the irregular nature of the puncture wounds coupled with extensive bruising and abrasion;
0: the photograph of markings highly suspicious of a dog’s arch;
the scalp wound, which he described as being “torn or ripped away”;
0: and the fact that the wounds did not look like stab wounds made by a knife or scissors, given their irregular edges.
Whether the dog theory was seriously raised by the police or not, it was Dr. Smith’s job to determine the cause of death, or if he could not do so to consult with someone more experienced who could.
Second, the argument that the dog attack theory was not seriously raised until some six months after Sharon’s death conveniently overlooks Dr. Smith’s own role in that theory not being taken seriously earlier.
Dr. Smith significantly undermined the possibility of a dog attack when he opined at the conclusion of the autopsy that the penetrating injuries were stab wounds.
When concerns were brought to Dr. Smith’s attention by the police two days later about the marks on Sharon’s upper back, he effectively shut down the prospect of the dog attack being taken seriously by unequivocally opining that they were “not domestic or wild animal in any way”.
For Dr. Smith to now suggest that his failure to properly assess the wounds was because the prospect of a dog attack was never seriously raised by the police is, frankly, ridiculous.
In any event, Dr. Smith’s conduct at the preliminary inquiry, by which time the “new” dog attack theory was being raised “seriously” – was anything and everything but reasonable.
As set out in our original submissions, Dr. Smith misled the court and opposing counsel about his qualifications to assess the wounds, his examination of the scalp, and the certainty of his own opinion, all in order to assist the Crown demolish the dog attack theory.
The suggestion by Dr. Smith that his testimony was “in good faith” is equally ridiculous, unless “good faith” was meant in the context of his acknowledged role in assisting the Crown.
Recall that Dr. Smith has clearly admitted that he advocated for the Crown’s position at the preliminary inquiry and knowingly overstated his confidence in his evidence at the preliminary, notwithstanding that he knew by that time that his role was to be neutral and objective.
(iii) others reached a similar opinion
Dr. Smith relies on the fact that Mr. Blenkinsop, Dr. Bechard, Dr. Wood and Dr. Chiasson all either supported or did not express any concerns about Dr. Smith’s opinion that Sharon’s injuries were stab wounds, not dog bites.
However, for the reasons which follow, the involvement of these individuals does not in any way support the notion that Dr. Smith’s opinion was reasonable:
Mr. Blenkinsop was not a pathologist, and since he is deceased we don’t know what he thought of Dr. Smith’s opinion.
Dr. Bechard is not a pathologist, and he did not view the body.
Dr. Wood also did not view the body, which he testified would have been “very important” in analyzing the wounds.
In any event, Dr. Wood now accepts that his opinion was wrong.
Dr. Chiasson did not view the body.
He also testified that he had little experience with dog bites and did not have a high level of comfort in this area.
Further, we adopt the submissions of the Chief Coroner's office; (see para. 234 of the Chief Coroner's Office's Closing Submissions) that the meeting at which Dr. Chiasson participated was in 1999, after the preliminary inquiry, and that he had no involvement in the case before then.
Dr. Smith also attempts to downplay his role in the charging and continuing prosecution of Louise Reynolds by referring to the circumstantial evidence suggesting she was guilty of a murder.
Had Dr. Smith acknowledged from the outset (rather than 20 years later) his lack of experience in penetrating wounds and ensured that the autopsy was performed by a forensically trained pathologist, the criminal investigation would have ended at that point, since it would have been clear that there was no homicide.
Jenna;
In the Jenna case, Dr. Smith argues that his opinion as to timing of the injuries was reasonable, and he takes issue with Dr. Pollanen’s view that his faulty diagnosis delayed the prosecution and conviction of the true perpetrator of the crime.17
He also points to the evidence of Brenda’s “clear and unequivocal” admission that she assaulted Jenna on the evening of January 20, 1997.
In particular, Dr. Smith points to his evidence at the preliminary inquiry, which he says provides a time window of between 4 and 32 hours for the injuries.
He also says that he did not testify that the injuries all occurred at once.
Dr. Smith argues that because the liver injury could not be excluded as contributing to Jenna’s death, and because it “could be as much as 48 hours old, sitting adjacent to other abdominal injuries that were likely quite recent”, it was reasonable for him not to “narrow down the window of time the injuries could have been inflicted”.
This reasoning, however, is superficial.
The opinion which needs to be evaluated is that which Dr. Smith gave the police during their initial investigation, and which the police relied upon in charging Ms. Waudby, not what he later testified to at the preliminary inquiry.
As outlined in our initial submissions, that opinion appears to have been that the injuries occurred “prior to 1700 on January 21, 1997” and “within a twenty-four hour period.”
As Drs. Milroy and Pollanen have opined, the analysis in this case is straightforward – the injury to the pancreas and duodenum was fatal and must have occurred within 6 hours of death because there was no evidence of healing.
Indeed, as Dr. Milroy put it:
“the evidence was there from the start to indicate that this child did not survive very long from the infliction of the injuries. … the key in this case was the fatal injury was available. You can look at the fatal injury, which was the rupture of the pancreas and the duodenum, and that could not have occurred longer than six hours. The other thing is that the clinical state of a child who has had the injury inflicted will not be normal. So if the child was described as being normal when it was handed over to the babysitter, that was an instant clue that the child had not been struck in the abdomen at that stage.”
The uncertain timing of the liver injury, its possible contribution to Jenna’s death, and whether it could have occurred at the “start of the process” have no bearing on this analysis.
Dr. Smith’s suggestion to the contrary is illogical and unreasonable.
The suggestion by Dr. Smith that he did not play a central role in Brenda Waudby being charged and prosecuted for murder, because there was circumstantial evidence of her guilt, is equally unreasonable.
Had Dr. Smith told the police that the fatal injuries must have been inflicted within 6 hours of death, they would have had to turn their attention away from Brenda Waudby and to the babysitter:
MR. PETER WARDLE: And if Dr. Smith had said that the injuries had occurred within a few hours of death, that would have led the police in a very different direction, correct?
MR. LARRY CHARMLEY: Absolutely. I mean, we wouldn't have ruled out everybody initially, but generally, the investigation would have pursued that avenue.
MR. PETER WARDLE: So the questions My Friend asked you about reasonable and probable grounds; reasonable and probable grounds, of course, is based on the information known to the police at the time, correct?
MR. LARRY CHARMLEY: Yes.
MR. PETER WARDLE: And at the time, your opinion is that you had reasonable and probable grounds to charge Brenda Waudby based on the pathology information that was coming from Dr. Smith, correct?
MR. LARRY CHARMLEY: It -- it fit in with all of the other information we investigated and found to make it reasonable given that the information of an assault occurring the night before and the information from Dr. Smith that the injuries that caused death could have occurred up to twenty-four (24) hours prior to death.
MR. PETER WARDLE: And had Dr. Smith told you, as we heard recently in this Inquiry from Dr. Milroy, that the child died within a few hours, under six(6) hours, from the infliction of the fatal injury, you would agree with me that the police would not have had reasonable and probable grounds to charge Brenda Waudby, correct?
MR. LARRY CHARMLEY: That's correct. Had I been that definite, we would not have reasonable grounds.
Finally, with respect to the cautioned statement, described by Dr. Smith as a “clear and unequivocal” admission, we simply note that the circumstances surrounding the taking of that statement and the subsequent plea are controversial and disputed by Ms. Waudby, who has not had an opportunity to testify at this inquiry.
This issue was briefly canvassed with Mr. Gilkinson in cross-examination and is referred to in our Closing Submissions at paragraphs 256-359."
Harold Levy...hlevy15@gmail.com;
Thursday, April 17, 2008
Part Three: Case Studies; Systemic Factors; The "Jenna" Case; Filed Early For Friday April 18;
"THE CROWN ATTORNEY INSISTED THAT NO WITHDRAWAL OF THE CRIMINAL CHARGES WOULD BE MADE UNLESS BRENDA PLEAD GUILTY TO AN OFFENCE UNDER SECTION 79(2)(A)…."
CASE STUDY; SYSTEMIC ISSUES; JENNA'S CASE; THE AFFECTED FAMILIES GROUP;
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Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Jenna" case;
There is an aspect of this case study - based on evidence called at the Goudge Inquiry - which is profoundly disturbing.
It is the allegation by the lawyers for the Affected Families Group that Brenda Waudby was required to plead guilty to another offence she was not guilty of - an allegation that she had physically abused Jenna historically - in order to have the second degree murder charge of which she was also utterly innocent withdrawn.
Worse, the lawyers charge that Waudby's guilty plea to the abuse charge - which would have disastrous impact on her family with the local Children's Aid Society - was based on yet another erroneous opinion of Dr. Charles Smith: that he had observed "old rib injuries."
That Brenda Waudby had to plead to a child-abuse related offence she knew she had not committed in order to secure the withdrawal of a murder charge that both Crown and Defence Experts agreed she she could not have committed is horrifying.
It is injustice piled upon injustice;
Read on:
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By way of brief background:
Jenna was born in Peterborough, Ontario in April of 1995. She died on January the 22nd, 1997 at the age of twenty-one (21) months, also in Peterborough.
Her mother was charged with second degree murder on September the 18th of 1997.
The criminal proceeding concluded on June the 15th of 1999 when the charge was withdrawn.
As reflected in the overview report, the Children's Aid Society apprehended Jenna's mother's older child on the day that Jenna died and placed her in temporary foster care.
And the -- the history of -- of the Child Protection Proceedings that followed is set out in paragraph 3 in more detail.
That child was ordered returned to Ms. Waudby's care on May the 2nd, 1997, and remained in her care until the day of Jenna's mother's arrest at --
arrest.
She was later reapprehended as reflected therein.
Children's Aid also apprehended a second child born after Jenna's death and placed him with his father.
After the charge was withdrawn against Jenna's mother, the child was ordered returned to her mother's care.
On December the 28th of 2005, J.D., the youth who was babysitting Jenna the night she died was charged with second degree murder, and in December of the following year pleaded guilty to manslaughter and was sentenced as a youth to twenty-two (22) months incarceration followed by eleven (11) months of community
supervision.
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"The key systemic issues raised by this case involve confirmation bias, the sharing and recording of information during the death investigation process, misleading testimony, “corridor consultations”, Crown disclosure, plea bargaining, and the impact on child protection proceedings," this case study begins;
"Dr. Smith’s autopsy notes indicate that he received information before the autopsy, likely from the Investigating Coroner, suggesting that Jenna’s parents used cocaine, that a babysitter had charge of Jenna the evening of her death, that Brenda had gone out for coffee and been away 6-7 hours, and that she might be a prostitute," it continues;
"Five years later, one of the things which Dr. Smith remembered clearly about the case was that the “real issue” was that the mother had gone out for an extended period of time the night of Jenna’s death.
He told Dr. Cohl during the CPSO investigation: “the real issue is that the mother left home 8-9 hrs, prior to the child’s death...she was to come back within the hour, but came back 8 or 9 hours later.”
In short, completely collateral information, prejudicial to Ms. Waudby, was provided to Dr. Smith at the outset, thought important enough by him to be written down, and then remembered years later as the most important issue in the case.
The evidence regarding timing of the injuries suggests this collateral information influenced Dr. Smith’s analysis of the case.
From the initial notes of Cst. Kirkland, it appears that Dr. Smith initially concluded that the fatal injuries occurred within a few hours prior to death.
Dr. Milroy told the Inquiry that this opinion “was a perfectly reasonable opinion to give to police” and that he, in effect, had “gotten it right” at this stage.
Sgt. Charmley and Crown Attorney Brian Gilkinson both agreed that had this remained the case, there would have been no basis to charge Ms. Waudby.
However, almost immediately that time interval began to widen.
Officer Lemay’s notes indicate that he was told by the investigating coroner after the autopsy that the injuries occurred “prior to 1700 on January 21, 1997”.
Several days later, the police were told that “the intrabdominal trauma was caused within a twenty-four hour period”.
At the preliminary Inquiry, Dr. Smith’s opinion was that the timing of injuries, if they all occurred at the same time, was “consistent with” 24 to 48 hours before death.
Dr. Milroy stated that “there’s nothing in the pathology that accounts for why the time was expanded” to “include consideration of the mother when she should clearly have been excluded.”
Subsequently, all experts who have reviewed this case have confirmed that Jenna died within six hours of the fatal injuries having been inflicted.
Indeed, in evidence before this Inquiry, Crown Attorney Brian Gilkinson confirmed that during the April 29, 1999 meeting, without any debate Dr. Smith agreed with Dr. Ein’s opinion.
Once again, the evidence strongly suggests that confirmation bias played a role in Dr. Smith’s initial approach to the case.
When confronted with clear medical evidence contradicting his opinion, he immediately retreated.
Furthermore, none of Dr. Smith’s opinions on timing are formally documented.
The Report of Post-Mortem Examination, completed by Dr. Smith eight months after Jenna’s death, does not deal directly with his opinion on timing of injuries, nor does it outline his analysis of that issue.
The evidence regarding the hair found on Jenna’s body also makes it clear that the issue is not simply filling in “gaps” in written documentation, it is also one of the transfer of this documentation to those who need to see it – whether it be the pathologist, the Crown, defence counsel, or those involved in child protection proceedings.
The evidence is clear that the hair was seen by several individuals at the Peterborough Civic Hospital upon Jenna’s arrival, including the investigating coroner, Dr. Thompson.
It is unclear whether Dr. Smith had access to all of the hospital records at the time of performing the autopsy.
What is clear is that Dr. Thompson did not include any information about the hair or the possibility of sexual assault on his Coroner’s Warrant.
No one appears to have ensured that Dr. Smith had all the relevant records and that he was aware of the concerns of hospital staff regarding the possibility of sexual assault.
In many cases before this Inquiry, Dr. Smith has referred to “corridor consultations” that support his own findings.
The Jenna case offers a poignant illustration of why all such consultations must be recorded in detail by the individual providing the consultation.
Dr. Milroy testified that the photographs show a reddening area on the vagina that raised suspicion of an injury.
In his view, an appropriate sexual assault investigation was not done.
There were no swabs and samples taken from the vaginal area.
Histology of the area was not completed.
A dark curly hair, although seized by Dr. Smith, was not specifically photographed, documented, or provided to police.
Dr. Smith advised Dr. Thompson on the day of Jenna’s autopsy that there was “no evidence of sexual assault”.
He stated to police that Dr. Dirk uyer was present and they together agreed that there was no evidence of abuse.
Dr. Dirk Huyer did not prepare a written report and has repeatedly indicated that he has no specific recollection of attending the autopsy, although he does remember discussing the case with the police.
Dr. Smith’s post-mortem examination report makes no mention of a sexual assault examination having been completed, or of the involvement of Dr. Huyer.
Dr. Smith’s autopsy notes, belatedly produced in 2004, indeed make reference to the presence of Dr. Huyer at the autopsy.
Following the April 23, 1999 meeting, it is apparent that Crown Attorney Gilkinson was not completely satisfied with the opinion of Dr. Ein, notwithstanding the fact that Dr. Smith had ultimately agreed with the six hour time frame.
Mr. Gilkinson and investigating officers then met with Dr. Porter and sought an opinion from her.
According to Mr. Gilkinson, he felt that OCCO should have an opportunity to respond to the issues raised by Dr. Ein.
As outlined in CAS notes, Mr. Gilkinson continued to look for an “angle to implicate mom”237 because in his view “mom is definitely a child abuser, but whether she is a child killer needs to be determined.”
Unfortunately for Ms. Waudby, these events took place at a time when Justine had already been in foster care for almost 24 months,239 and Ms. Waudby was due to give birth to her youngest child.
There is evidence before this Inquiry that the Kawartha Haliburton CAS repeatedly asked the investigating officer and the Crown Attorney for information regarding the status of the criminal proceedings, and requested access to the Crown Brief.
At no point was the KHCAS advised of the fact that as of April 23rd, 1999, Dr. Smith had agreed with the opinion of Dr. Ein that the fatal injuries were inflicted within 6 hours of death.
In fact, there is evidence to suggest that the KHCAS were specifically told by the investigating officer that the Crown Brief was “not much different” than in 1997.
Dr. Smith became involved in the child protection proceedings as well, offering an opinion on May 6th,1999 to the worker that ‘I guess I’ll be doing his autopsy too” [referring to M.W.].
Again this gratuitous and inflammatory comment was provided to the KHCAS despite the fact that Dr. Smith had agreed with the conclusions of Dr. Ein on April 23rd, 1999 with respect to timing of injuries, and was not a participant in the CAS decision-making process.
The result was that relevant and necessary information was not before the Honourable Mme. Justice K.E. Johnston on May 7th, 1999 when M.W. was removed from his mother’s care.
Dr. Porter released a report to Crown Attorney Gilkinson on May 26th, 1999 which, again, confirmed that the timing of the injuries to Jenna were less than six hours from her death.
This report was not disclosed by the Crown to the defence, or to the CAS.
Laird Meneley, counsel for Ms. Waudby in the CAS proceedings, made several attempts to obtain this report from both Dr. Porter and Mr. Gilkinson without success.
It is our respectful submission that the Crown Attorney has a positive duty, not only to report child abuse to the CAS,247 but to immediately report the finding that there is an absence of evidence of same.
There should never be reliance on defence counsel to simply “pass the information along”.
There can be no doubt that the above disclosure issues had a serious impact on the child protection proceedings involving Justine and M.W.:
The Crown Attorney did not withdraw the charge against Brenda until June 15th, 1999.
The Crown Attorney insisted that no withdrawal of the criminal charges would be made unless Brenda plead guilty to an offence under section 79(2)(a)….
Brenda’s daughter spent more than one and a half years in foster care while Brenda’s criminal charges were outstanding.
Brenda has never spent a single overnight with her infant son.
Brenda, Brenda’s children and her extended family have been completely devastated as a result of her being arrested for a crime she did not commit.
Brenda Waudby’s name remains on the Child Abuse Registry.
The potential for members of a death investigation team to approach a case using a common set of shared (and therefore unchallenged) assumptions is a fact which runs through the cases before this Inquiry, and is something that is important to guard against.
As noted earlier, the Crown appears to have been of the view that Ms. Waudby was a “child abuser”.
In his evidence before this Inquiry, Mr. Gilkinson very candidly agreed that this was based on the pathological findings of Dr. Smith regarding old rib injuries.
The same conclusions appear to have been relied upon, both by the Crown and by the defence, when Ms. Waudby entered a plea of guilty to a charge under section 79(2)(a) of the Child and Family Services Act;
As of that time Dr. Smith’s opinion regarding the timing of the rib injuries had not, in fact, been challenged.
As a consequence of the CFSA conviction, Ms. Waudby was placed on probation requiring her to take direction from her Probation Officer in conjuction with the KHCAS “for the care and management of her children”.
The fact of the plea of guilty to child abuse was used in subsequent child protection proceedings involving Justine and M.W.
The pathological evidence before this Inquiry regarding the age of Jenna’s rib injuries is important to note:
Dr. Smith noted broken ribs at the time of autopsy;
The x-rays which accompanied the body from the Peterborough Civic Hospital were unremarkable;
The x-ray report of Dr. Paul Babyn showed “questionable posterior rib fractures”;
The CT scan reported by Dr. Paul Babyn showed “findings in keeping with acute, non-accidental injury given lack of defined healing, multiplicity of fractures and fracture location;
In his interview with the CPSO, Dr. Smith stated that there was “no good histology of rib healing (in radiological information) and further stated: “I don’t know when the rib injuries occurred – 6 hrs., 24 hrs. or more”;
In his 2005 review, Dr. Pollanen stated: “none of the fractures show definite evidence of a healing reaction…. the rib fractures occurred by a chest compression mechanism in the perimortem period Historical details about how the compressive force was applied are lacking”;
and
The only reference to 7-10 day old rib injuries is the police officer’s notes at the third case conference on July 7th, 1997, when Dr. Smith apparently reported that the “only thing new was old rib injuries had been discovered.”
When asked specifically to consider this issue in retrospect, Mr. Gilkinson very candidly stated the following:
"I agree that that's the import of what his opinion is. That wasn't the opinion we had or we relied on at the time the plea was entered.... so I'm sitting here wondering whether or not we took a plea -- well, we took a plea on the basis of rib head fractures that were considered old at the time…you just do the best you can to make the decisions that appear to be appropriate with the information you have at the time."
Harold Levy...hlevy15@gmail.com;
CASE STUDY; SYSTEMIC ISSUES; JENNA'S CASE; THE AFFECTED FAMILIES GROUP;
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Among the most insightful reads that have come out of the Goudge Inquiry are studies of several of the cases studied by the Inquiry - with a view to identifying the systemic issues that they raise.
These case studies have been filed by lawyers Peter Wardle and Julie Kirkpatrick who represent the Affected Families Group;
The third case has been identified by the Inquiry as the "Jenna" case;
There is an aspect of this case study - based on evidence called at the Goudge Inquiry - which is profoundly disturbing.
It is the allegation by the lawyers for the Affected Families Group that Brenda Waudby was required to plead guilty to another offence she was not guilty of - an allegation that she had physically abused Jenna historically - in order to have the second degree murder charge of which she was also utterly innocent withdrawn.
Worse, the lawyers charge that Waudby's guilty plea to the abuse charge - which would have disastrous impact on her family with the local Children's Aid Society - was based on yet another erroneous opinion of Dr. Charles Smith: that he had observed "old rib injuries."
That Brenda Waudby had to plead to a child-abuse related offence she knew she had not committed in order to secure the withdrawal of a murder charge that both Crown and Defence Experts agreed she she could not have committed is horrifying.
It is injustice piled upon injustice;
Read on:
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By way of brief background:
Jenna was born in Peterborough, Ontario in April of 1995. She died on January the 22nd, 1997 at the age of twenty-one (21) months, also in Peterborough.
Her mother was charged with second degree murder on September the 18th of 1997.
The criminal proceeding concluded on June the 15th of 1999 when the charge was withdrawn.
As reflected in the overview report, the Children's Aid Society apprehended Jenna's mother's older child on the day that Jenna died and placed her in temporary foster care.
And the -- the history of -- of the Child Protection Proceedings that followed is set out in paragraph 3 in more detail.
That child was ordered returned to Ms. Waudby's care on May the 2nd, 1997, and remained in her care until the day of Jenna's mother's arrest at --
arrest.
She was later reapprehended as reflected therein.
Children's Aid also apprehended a second child born after Jenna's death and placed him with his father.
After the charge was withdrawn against Jenna's mother, the child was ordered returned to her mother's care.
On December the 28th of 2005, J.D., the youth who was babysitting Jenna the night she died was charged with second degree murder, and in December of the following year pleaded guilty to manslaughter and was sentenced as a youth to twenty-two (22) months incarceration followed by eleven (11) months of community
supervision.
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"The key systemic issues raised by this case involve confirmation bias, the sharing and recording of information during the death investigation process, misleading testimony, “corridor consultations”, Crown disclosure, plea bargaining, and the impact on child protection proceedings," this case study begins;
"Dr. Smith’s autopsy notes indicate that he received information before the autopsy, likely from the Investigating Coroner, suggesting that Jenna’s parents used cocaine, that a babysitter had charge of Jenna the evening of her death, that Brenda had gone out for coffee and been away 6-7 hours, and that she might be a prostitute," it continues;
"Five years later, one of the things which Dr. Smith remembered clearly about the case was that the “real issue” was that the mother had gone out for an extended period of time the night of Jenna’s death.
He told Dr. Cohl during the CPSO investigation: “the real issue is that the mother left home 8-9 hrs, prior to the child’s death...she was to come back within the hour, but came back 8 or 9 hours later.”
In short, completely collateral information, prejudicial to Ms. Waudby, was provided to Dr. Smith at the outset, thought important enough by him to be written down, and then remembered years later as the most important issue in the case.
The evidence regarding timing of the injuries suggests this collateral information influenced Dr. Smith’s analysis of the case.
From the initial notes of Cst. Kirkland, it appears that Dr. Smith initially concluded that the fatal injuries occurred within a few hours prior to death.
Dr. Milroy told the Inquiry that this opinion “was a perfectly reasonable opinion to give to police” and that he, in effect, had “gotten it right” at this stage.
Sgt. Charmley and Crown Attorney Brian Gilkinson both agreed that had this remained the case, there would have been no basis to charge Ms. Waudby.
However, almost immediately that time interval began to widen.
Officer Lemay’s notes indicate that he was told by the investigating coroner after the autopsy that the injuries occurred “prior to 1700 on January 21, 1997”.
Several days later, the police were told that “the intrabdominal trauma was caused within a twenty-four hour period”.
At the preliminary Inquiry, Dr. Smith’s opinion was that the timing of injuries, if they all occurred at the same time, was “consistent with” 24 to 48 hours before death.
Dr. Milroy stated that “there’s nothing in the pathology that accounts for why the time was expanded” to “include consideration of the mother when she should clearly have been excluded.”
Subsequently, all experts who have reviewed this case have confirmed that Jenna died within six hours of the fatal injuries having been inflicted.
Indeed, in evidence before this Inquiry, Crown Attorney Brian Gilkinson confirmed that during the April 29, 1999 meeting, without any debate Dr. Smith agreed with Dr. Ein’s opinion.
Once again, the evidence strongly suggests that confirmation bias played a role in Dr. Smith’s initial approach to the case.
When confronted with clear medical evidence contradicting his opinion, he immediately retreated.
Furthermore, none of Dr. Smith’s opinions on timing are formally documented.
The Report of Post-Mortem Examination, completed by Dr. Smith eight months after Jenna’s death, does not deal directly with his opinion on timing of injuries, nor does it outline his analysis of that issue.
The evidence regarding the hair found on Jenna’s body also makes it clear that the issue is not simply filling in “gaps” in written documentation, it is also one of the transfer of this documentation to those who need to see it – whether it be the pathologist, the Crown, defence counsel, or those involved in child protection proceedings.
The evidence is clear that the hair was seen by several individuals at the Peterborough Civic Hospital upon Jenna’s arrival, including the investigating coroner, Dr. Thompson.
It is unclear whether Dr. Smith had access to all of the hospital records at the time of performing the autopsy.
What is clear is that Dr. Thompson did not include any information about the hair or the possibility of sexual assault on his Coroner’s Warrant.
No one appears to have ensured that Dr. Smith had all the relevant records and that he was aware of the concerns of hospital staff regarding the possibility of sexual assault.
In many cases before this Inquiry, Dr. Smith has referred to “corridor consultations” that support his own findings.
The Jenna case offers a poignant illustration of why all such consultations must be recorded in detail by the individual providing the consultation.
Dr. Milroy testified that the photographs show a reddening area on the vagina that raised suspicion of an injury.
In his view, an appropriate sexual assault investigation was not done.
There were no swabs and samples taken from the vaginal area.
Histology of the area was not completed.
A dark curly hair, although seized by Dr. Smith, was not specifically photographed, documented, or provided to police.
Dr. Smith advised Dr. Thompson on the day of Jenna’s autopsy that there was “no evidence of sexual assault”.
He stated to police that Dr. Dirk uyer was present and they together agreed that there was no evidence of abuse.
Dr. Dirk Huyer did not prepare a written report and has repeatedly indicated that he has no specific recollection of attending the autopsy, although he does remember discussing the case with the police.
Dr. Smith’s post-mortem examination report makes no mention of a sexual assault examination having been completed, or of the involvement of Dr. Huyer.
Dr. Smith’s autopsy notes, belatedly produced in 2004, indeed make reference to the presence of Dr. Huyer at the autopsy.
Following the April 23, 1999 meeting, it is apparent that Crown Attorney Gilkinson was not completely satisfied with the opinion of Dr. Ein, notwithstanding the fact that Dr. Smith had ultimately agreed with the six hour time frame.
Mr. Gilkinson and investigating officers then met with Dr. Porter and sought an opinion from her.
According to Mr. Gilkinson, he felt that OCCO should have an opportunity to respond to the issues raised by Dr. Ein.
As outlined in CAS notes, Mr. Gilkinson continued to look for an “angle to implicate mom”237 because in his view “mom is definitely a child abuser, but whether she is a child killer needs to be determined.”
Unfortunately for Ms. Waudby, these events took place at a time when Justine had already been in foster care for almost 24 months,239 and Ms. Waudby was due to give birth to her youngest child.
There is evidence before this Inquiry that the Kawartha Haliburton CAS repeatedly asked the investigating officer and the Crown Attorney for information regarding the status of the criminal proceedings, and requested access to the Crown Brief.
At no point was the KHCAS advised of the fact that as of April 23rd, 1999, Dr. Smith had agreed with the opinion of Dr. Ein that the fatal injuries were inflicted within 6 hours of death.
In fact, there is evidence to suggest that the KHCAS were specifically told by the investigating officer that the Crown Brief was “not much different” than in 1997.
Dr. Smith became involved in the child protection proceedings as well, offering an opinion on May 6th,1999 to the worker that ‘I guess I’ll be doing his autopsy too” [referring to M.W.].
Again this gratuitous and inflammatory comment was provided to the KHCAS despite the fact that Dr. Smith had agreed with the conclusions of Dr. Ein on April 23rd, 1999 with respect to timing of injuries, and was not a participant in the CAS decision-making process.
The result was that relevant and necessary information was not before the Honourable Mme. Justice K.E. Johnston on May 7th, 1999 when M.W. was removed from his mother’s care.
Dr. Porter released a report to Crown Attorney Gilkinson on May 26th, 1999 which, again, confirmed that the timing of the injuries to Jenna were less than six hours from her death.
This report was not disclosed by the Crown to the defence, or to the CAS.
Laird Meneley, counsel for Ms. Waudby in the CAS proceedings, made several attempts to obtain this report from both Dr. Porter and Mr. Gilkinson without success.
It is our respectful submission that the Crown Attorney has a positive duty, not only to report child abuse to the CAS,247 but to immediately report the finding that there is an absence of evidence of same.
There should never be reliance on defence counsel to simply “pass the information along”.
There can be no doubt that the above disclosure issues had a serious impact on the child protection proceedings involving Justine and M.W.:
The Crown Attorney did not withdraw the charge against Brenda until June 15th, 1999.
The Crown Attorney insisted that no withdrawal of the criminal charges would be made unless Brenda plead guilty to an offence under section 79(2)(a)….
Brenda’s daughter spent more than one and a half years in foster care while Brenda’s criminal charges were outstanding.
Brenda has never spent a single overnight with her infant son.
Brenda, Brenda’s children and her extended family have been completely devastated as a result of her being arrested for a crime she did not commit.
Brenda Waudby’s name remains on the Child Abuse Registry.
The potential for members of a death investigation team to approach a case using a common set of shared (and therefore unchallenged) assumptions is a fact which runs through the cases before this Inquiry, and is something that is important to guard against.
As noted earlier, the Crown appears to have been of the view that Ms. Waudby was a “child abuser”.
In his evidence before this Inquiry, Mr. Gilkinson very candidly agreed that this was based on the pathological findings of Dr. Smith regarding old rib injuries.
The same conclusions appear to have been relied upon, both by the Crown and by the defence, when Ms. Waudby entered a plea of guilty to a charge under section 79(2)(a) of the Child and Family Services Act;
As of that time Dr. Smith’s opinion regarding the timing of the rib injuries had not, in fact, been challenged.
As a consequence of the CFSA conviction, Ms. Waudby was placed on probation requiring her to take direction from her Probation Officer in conjuction with the KHCAS “for the care and management of her children”.
The fact of the plea of guilty to child abuse was used in subsequent child protection proceedings involving Justine and M.W.
The pathological evidence before this Inquiry regarding the age of Jenna’s rib injuries is important to note:
Dr. Smith noted broken ribs at the time of autopsy;
The x-rays which accompanied the body from the Peterborough Civic Hospital were unremarkable;
The x-ray report of Dr. Paul Babyn showed “questionable posterior rib fractures”;
The CT scan reported by Dr. Paul Babyn showed “findings in keeping with acute, non-accidental injury given lack of defined healing, multiplicity of fractures and fracture location;
In his interview with the CPSO, Dr. Smith stated that there was “no good histology of rib healing (in radiological information) and further stated: “I don’t know when the rib injuries occurred – 6 hrs., 24 hrs. or more”;
In his 2005 review, Dr. Pollanen stated: “none of the fractures show definite evidence of a healing reaction…. the rib fractures occurred by a chest compression mechanism in the perimortem period Historical details about how the compressive force was applied are lacking”;
and
The only reference to 7-10 day old rib injuries is the police officer’s notes at the third case conference on July 7th, 1997, when Dr. Smith apparently reported that the “only thing new was old rib injuries had been discovered.”
When asked specifically to consider this issue in retrospect, Mr. Gilkinson very candidly stated the following:
"I agree that that's the import of what his opinion is. That wasn't the opinion we had or we relied on at the time the plea was entered.... so I'm sitting here wondering whether or not we took a plea -- well, we took a plea on the basis of rib head fractures that were considered old at the time…you just do the best you can to make the decisions that appear to be appropriate with the information you have at the time."
Harold Levy...hlevy15@gmail.com;
Sunday, April 13, 2008
Part Seventeen: Closing Submissions; Affected Families Blast Former Chief Coroner's continued support of Dr. Charles Smith;
"AS LATE AS NOVEMBER, 2002, DR. YOUNG WAS STILL SUPPORTING DR. SMITH;"
CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP;
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This Blog is currently focussing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;
The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;
Today's focus is on a section in which the group argues that former Chief Coroner Dr. James Young continued to support Dr. Smith - even after receiving evidence that raised serious questions as to his competence, veracity, and potential obstruction of justice.
"In fact, as time went on the Chief Coroner's Office learned information about Dr. Smith which should have triggered immediate consequences," the section, under the caption "Following the Discovery of the Hair, Dr. Young Continues to Support Dr. Smith," begins;
"In particular, beginning in November, 2001 Dr. Cairns became involved in the Jenna case, where as a result of Det. Charmley’s reinvestigation the hair was rediscovered," it continues;
"Following Dr. Cairns meeting with Dr. Smith and his wife, he knew that Dr. Smith’s explanation about his discovery of the hair made no sense and was likely false.
Prior to April 10, 2002, Dr. Young was briefed by Dr. Cairns on what he had learned.
He acknowledged in his evidence that this issue raised serious questions.
Those included Dr. Smith’s competence, veracity, and potential obstruction of justice.
And yet, the Chief Coroner's Office took no steps whatsoever as a result of this information (except that of Dr. Cairns notifying the Registrar of the College of Physicians and Surgeons Of Ontario of his concerns).
Dr. Smith continued to sit on the Pediatric Death Review Committee and Death Under 2committees. Furthermore, he continued to be the nominal head of the Ontario Pediatric Forensic Pathology Unit.
As a result, for a lengthy period Dr. Smith continued, at least in theory, to be responsible for the review of autopsy reports of other Hospital for Sick Children pathologists in criminally suspicious child death cases, while at the same time being prevented from doing such autopsies himself!
Further, inexplicably, on April 10, 2002, knowing of the information which had emerged in the Jenna case, Dr. Young wrote a letter of support for Dr. Smith to the College.
That letter is carefully crafted (by Dr. Smith’s counsel!), and does not actually defend the correctness of Dr. Smith’s findings in the three cases under review by the College Complaints Committee.
However, it signals in unambiguous terms that the Chief Coroner of Ontario was supporting his pathologist.
According to the letter:
0: Dr. Smith was “qualified” to undertake the work requested in each case;
0: At no time did Dr. Smith act in bad faith or with the intent of obstructing or hindering the coroner’s investigation in each case;
0: For Nicholas and Amber the conclusions he reached fell within the “range of reasonable expectations”;
0: With respect to Amber, in which Dr. Young was directly involved, he was “completely satisfied” that Dr. Smith’s conclusions met the standard expected;
0: Dr. Young had investigated Mr. Gagnon’s allegations and had not found any professional misconduct, and Dr. Smith’s opinion “fell within a range of acceptable opinions”;
0: Dr. Young was not willing to comment on Dr. Smith’s involvement in Jenna, because of the ongoing criminal investigation.
Dr. Young was unable to explain why he wrote this letter, given the circumstances at the time.
He acknowledged with the benefit of hindsight that the Chief Coroner's Office should have stopped Dr. Smith from doing anything after it found out about his conduct in regard to the hair.
Dr. Young’s failure to act may have had collateral consequences.
As outlined earlier, a few months later Dr. Smith was interviewed by the chair of the panel of assessors appointed by the Complaints Committee.
He gave arguably misleading information about his ongoing work in connection with the Ontario Pediatric Forensic Pathology Unit, which he still at least theoretically headed.
Arguably, had Dr. Smith’s position been taken away in April 2002 the College would have investigated those cases further.
As late as November, 2002 Dr. Young was still supporting Dr. Smith; he wrote a letter on his behalf to the Northumberland Ontario Provincial Police after the traffic stop incident.
When Dr. McLellan became acting chief coroner in July 2002 he did not agree that Dr. Smith should continue as Director of the Ontario Pediatric Forensic Pathology Unit;
Dr. Young refused to take the position away from him, but on Dr. McLellan’s insistence, agreed to assume responsibility for all matters relating to Dr. Smith.
It was only in October 2003, in the context of ongoing concerns about cases which were continuing to receive media attention, and in the context of the decision of Justice Trafford in the Athena case, that Chief Coroner's Office demonstrated any real concerns about Dr. Smith continuing to conduct coroner’s autopsies(although Dr. McLellan had continued to express his concern since his appointment as acting Chief Coroner).
At that time, Dr. Smith was forced to resign from his committee work.
Finally, in April 2004 he was forced to resign as head of the Ontario Pediatric Forensic Pathology Unit after Dr. McLellan became Chief Coroner."
Harold Levy...hlevy15@gmail.com;
CLOSING SUBMISSIONS; AFFECTED FAMILIES GROUP;
-----------------------------------------------------------------------------------
This Blog is currently focussing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;
The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;
Today's focus is on a section in which the group argues that former Chief Coroner Dr. James Young continued to support Dr. Smith - even after receiving evidence that raised serious questions as to his competence, veracity, and potential obstruction of justice.
"In fact, as time went on the Chief Coroner's Office learned information about Dr. Smith which should have triggered immediate consequences," the section, under the caption "Following the Discovery of the Hair, Dr. Young Continues to Support Dr. Smith," begins;
"In particular, beginning in November, 2001 Dr. Cairns became involved in the Jenna case, where as a result of Det. Charmley’s reinvestigation the hair was rediscovered," it continues;
"Following Dr. Cairns meeting with Dr. Smith and his wife, he knew that Dr. Smith’s explanation about his discovery of the hair made no sense and was likely false.
Prior to April 10, 2002, Dr. Young was briefed by Dr. Cairns on what he had learned.
He acknowledged in his evidence that this issue raised serious questions.
Those included Dr. Smith’s competence, veracity, and potential obstruction of justice.
And yet, the Chief Coroner's Office took no steps whatsoever as a result of this information (except that of Dr. Cairns notifying the Registrar of the College of Physicians and Surgeons Of Ontario of his concerns).
Dr. Smith continued to sit on the Pediatric Death Review Committee and Death Under 2committees. Furthermore, he continued to be the nominal head of the Ontario Pediatric Forensic Pathology Unit.
As a result, for a lengthy period Dr. Smith continued, at least in theory, to be responsible for the review of autopsy reports of other Hospital for Sick Children pathologists in criminally suspicious child death cases, while at the same time being prevented from doing such autopsies himself!
Further, inexplicably, on April 10, 2002, knowing of the information which had emerged in the Jenna case, Dr. Young wrote a letter of support for Dr. Smith to the College.
That letter is carefully crafted (by Dr. Smith’s counsel!), and does not actually defend the correctness of Dr. Smith’s findings in the three cases under review by the College Complaints Committee.
However, it signals in unambiguous terms that the Chief Coroner of Ontario was supporting his pathologist.
According to the letter:
0: Dr. Smith was “qualified” to undertake the work requested in each case;
0: At no time did Dr. Smith act in bad faith or with the intent of obstructing or hindering the coroner’s investigation in each case;
0: For Nicholas and Amber the conclusions he reached fell within the “range of reasonable expectations”;
0: With respect to Amber, in which Dr. Young was directly involved, he was “completely satisfied” that Dr. Smith’s conclusions met the standard expected;
0: Dr. Young had investigated Mr. Gagnon’s allegations and had not found any professional misconduct, and Dr. Smith’s opinion “fell within a range of acceptable opinions”;
0: Dr. Young was not willing to comment on Dr. Smith’s involvement in Jenna, because of the ongoing criminal investigation.
Dr. Young was unable to explain why he wrote this letter, given the circumstances at the time.
He acknowledged with the benefit of hindsight that the Chief Coroner's Office should have stopped Dr. Smith from doing anything after it found out about his conduct in regard to the hair.
Dr. Young’s failure to act may have had collateral consequences.
As outlined earlier, a few months later Dr. Smith was interviewed by the chair of the panel of assessors appointed by the Complaints Committee.
He gave arguably misleading information about his ongoing work in connection with the Ontario Pediatric Forensic Pathology Unit, which he still at least theoretically headed.
Arguably, had Dr. Smith’s position been taken away in April 2002 the College would have investigated those cases further.
As late as November, 2002 Dr. Young was still supporting Dr. Smith; he wrote a letter on his behalf to the Northumberland Ontario Provincial Police after the traffic stop incident.
When Dr. McLellan became acting chief coroner in July 2002 he did not agree that Dr. Smith should continue as Director of the Ontario Pediatric Forensic Pathology Unit;
Dr. Young refused to take the position away from him, but on Dr. McLellan’s insistence, agreed to assume responsibility for all matters relating to Dr. Smith.
It was only in October 2003, in the context of ongoing concerns about cases which were continuing to receive media attention, and in the context of the decision of Justice Trafford in the Athena case, that Chief Coroner's Office demonstrated any real concerns about Dr. Smith continuing to conduct coroner’s autopsies(although Dr. McLellan had continued to express his concern since his appointment as acting Chief Coroner).
At that time, Dr. Smith was forced to resign from his committee work.
Finally, in April 2004 he was forced to resign as head of the Ontario Pediatric Forensic Pathology Unit after Dr. McLellan became Chief Coroner."
Harold Levy...hlevy15@gmail.com;
Monday, April 7, 2008
Part Twelve; Closing Submission: Affected Families; More Details Of What Top Officials of Chief Coroner's Office Allegedly knew;
This Blog is currently focusing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;
The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;
Today's focus is on a section in which the group lays out an array of specific problems with Dr. Smith's work which it alleges had come to the attention of top officials of the Ontario Chief Coroner's Office - and did not result in measures to protect the public.
"By the late 1990’s, the Chief Coroner's Office was aware of serious and continuing problems with turnaround times for Dr. Smith’s reports," the section begins;
"This was one of a number of issues that led Dr. Chiasson to recommend a revisioning of the Ontario Pediatric Forensic Pathology Unit," it continues;
"The problem was so severe that in several instances the Crown had been forced to issue a summons to Dr. Smith.
Regional Coroners were concerned enough about the problem that one of them had encouraged coroners not to use Dr. Smith.
Drs. Young and Cairns also knew of a continued problem with access to Dr. Smith experienced by different players in the justice system.
Dr. Cairns was aware of concerns that Dr. Smith changed his opinions during the course of a case.
Dr. Cairns was aware that in the Simmons case Dr. Smith had made a very serious mistake with respect to DNA evidence which had led to criminal charges not being laid in a timely fashion.
In addition, by the late 1990’s, the Chief Coroner's Office had findings in three specific cases which should have raised concerns about Dr. Smith’s competence, objectivity and professionalism:
In the Amber case, both Drs. Cairns and Young were aware of the acquittal.
In May, 1998 in the Nicholas case Dr. Cairns was sent an excerpt of Justice Dunn’s decision by counsel for the Sudbury CAS.
Whether or not Dr. Young read the decision at the time it was released, he certainly had the decision drawn to his attention at the meeting with Ms. Mann on February 14, and in Mr. Gagnon’s complaint to the Coroner’s Council in February, 1999.
Dr. Young was aware of DM’s complaint to the College Of Physicians And Surgeons Of Ontario about Dr. Smith;
In the Nicholas case, in March, 1999 the Chief Coroner's Office received the opinion of Dr. Mary Case which, concluded “I would not attribute this death to a head injury as there are no findings on which to make such a conclusion”.
Dr. Case was shown on the Fifth Estate program in November, 1999 at a pathology conference giving a presentation about the case, and calling Dr. Smith’s conclusions “in the area of irresponsible testimony”.
Dr. Cairns saw the program. Dr. Young received Mr. Gagnon’s detailed complaint about Dr. Smith in February, 1999;
In the Sharon case, Drs. Cairns and Young knew in February 1999 that international forensic scientists were concerned that the case might lead to a miscarriage of justice.
They knew at around this time that Dr. Smith had lost a cast of Sharon’s skull which had been made an exhibit at the preliminary inquiry.
In July, 1999, following the exhumation, they were aware that many of the wounds were dog bites, contrary to Dr. Smith’s initial opinion.
In 1999, the Chief Coroner's Office should have been aware of the outcome of criminal charges in the Jenna case.
Dr. Smith’s original opinion regarding the timing of injuries had been discredited, first by defence expert Dr. Sigmund Ein on April 23rd, 1999 and then by Dr. Bonita Porter, Deputy Chief Coroner and acting Chair of the Pediatric Death Review Committee, on May 26th, 1999.
The charges against Brenda Waudby were subsequently withdrawn on June 15th;"
Harold Levy...hlevy15@gmail.com;
The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;
Today's focus is on a section in which the group lays out an array of specific problems with Dr. Smith's work which it alleges had come to the attention of top officials of the Ontario Chief Coroner's Office - and did not result in measures to protect the public.
"By the late 1990’s, the Chief Coroner's Office was aware of serious and continuing problems with turnaround times for Dr. Smith’s reports," the section begins;
"This was one of a number of issues that led Dr. Chiasson to recommend a revisioning of the Ontario Pediatric Forensic Pathology Unit," it continues;
"The problem was so severe that in several instances the Crown had been forced to issue a summons to Dr. Smith.
Regional Coroners were concerned enough about the problem that one of them had encouraged coroners not to use Dr. Smith.
Drs. Young and Cairns also knew of a continued problem with access to Dr. Smith experienced by different players in the justice system.
Dr. Cairns was aware of concerns that Dr. Smith changed his opinions during the course of a case.
Dr. Cairns was aware that in the Simmons case Dr. Smith had made a very serious mistake with respect to DNA evidence which had led to criminal charges not being laid in a timely fashion.
In addition, by the late 1990’s, the Chief Coroner's Office had findings in three specific cases which should have raised concerns about Dr. Smith’s competence, objectivity and professionalism:
In the Amber case, both Drs. Cairns and Young were aware of the acquittal.
In May, 1998 in the Nicholas case Dr. Cairns was sent an excerpt of Justice Dunn’s decision by counsel for the Sudbury CAS.
Whether or not Dr. Young read the decision at the time it was released, he certainly had the decision drawn to his attention at the meeting with Ms. Mann on February 14, and in Mr. Gagnon’s complaint to the Coroner’s Council in February, 1999.
Dr. Young was aware of DM’s complaint to the College Of Physicians And Surgeons Of Ontario about Dr. Smith;
In the Nicholas case, in March, 1999 the Chief Coroner's Office received the opinion of Dr. Mary Case which, concluded “I would not attribute this death to a head injury as there are no findings on which to make such a conclusion”.
Dr. Case was shown on the Fifth Estate program in November, 1999 at a pathology conference giving a presentation about the case, and calling Dr. Smith’s conclusions “in the area of irresponsible testimony”.
Dr. Cairns saw the program. Dr. Young received Mr. Gagnon’s detailed complaint about Dr. Smith in February, 1999;
In the Sharon case, Drs. Cairns and Young knew in February 1999 that international forensic scientists were concerned that the case might lead to a miscarriage of justice.
They knew at around this time that Dr. Smith had lost a cast of Sharon’s skull which had been made an exhibit at the preliminary inquiry.
In July, 1999, following the exhumation, they were aware that many of the wounds were dog bites, contrary to Dr. Smith’s initial opinion.
In 1999, the Chief Coroner's Office should have been aware of the outcome of criminal charges in the Jenna case.
Dr. Smith’s original opinion regarding the timing of injuries had been discredited, first by defence expert Dr. Sigmund Ein on April 23rd, 1999 and then by Dr. Bonita Porter, Deputy Chief Coroner and acting Chair of the Pediatric Death Review Committee, on May 26th, 1999.
The charges against Brenda Waudby were subsequently withdrawn on June 15th;"
Harold Levy...hlevy15@gmail.com;
Friday, March 28, 2008
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;
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;
Tuesday, March 18, 2008
Part Two: Collateral Damage; Dr. Charles Smith's Forgotten Victims;
The "collateral damage" caused within families by Dr. Charles Smith has been vividly captured by Toronto Star reporter Theresa Boyle, in a story, published on March 9, 2008, that focuses on "The 'forgotten victims' torn from their homes."
The most recent posting of this Blog presented Boyle's account of the assault launched on Sherry Sherret's family by the local Children's Aid Society following Dr. Smith's flawed opinion.
Today we continue with Boyle's report on the collateral damage caused within Brenda Waudby's family based on an email which Boyle received from Brenda Waudby's daughter Justine, who in now eighteen years old.
The story ran on March 9, 2008, under the heading, "Justine: 'I really want to not be afraid of the world."
"In an email exchange, Justine Traynor, now 18, recounted how her life was thrown into chaos the night her baby sister, Jenna, died in 1997," Boyles's story began.
"Then 7, Justine was apprehended by children's aid and spent most of the next 2 1/2 years in foster care," it continued.
"Her mother, Brenda Waudby, was charged with second-degree murder, largely on the mistaken evidence of disgraced pathologist Dr. Charles Smith.
Waudby gave birth to a son in May 1999 and he was immediately apprehended.
The baby was returned to her almost a year later under a supervision order.
The charge against Waudby was withdrawn in 1999 and a 14-year-old male babysitter later pled guilty to manslaughter.
"That night I can remember waking up to emergency personnel outside of the house and my mom standing at the door. They would not allow me to talk to my mom.
I screamed, "Where the hell is my sister?" No one replied. I was just put into a CAS worker's car. ...
"I would see my mom once, and sometimes, twice a week, Mondays and Wednesdays.
I was very confused and I missed my mom so much.
I do remember the woman who took me to see my mom.
We used to sing songs together after (the) visits to help settle me down from missing my mom.
I was so upset and confused that when I was actually able to come home I can remember ... that I said that I wanted to kill myself.
So I mean, yes, of course this has had an impact in and on my life.
"I did have to change schools, obviously homes, and I had to make new friends.
I was mostly just really confused, and I just wanted to go home to my mom. ... I had already lost my sister to a tragic event and then I lose my mom.
I really didn't understand what was happening ... It was hard to focus on school or care about friends ... when I just felt sad, scared, and confused for most of the time.
I know it sounds silly, but even having a different kind of food, having different clothing or a different way to be tucked into bed can make a big difference to a kid.
"I do dream about being a normal person, probably too much of the time.
I do not feel comfortable around people my own age because nobody is like me.
Nobody has been through the things I have been through, the way I have been through them.
"I am trying to not be angry or scared anymore but it is very hard, especially the scared part.
I am working with someone now every week to learn more about myself and how to build confidence.
I avoid most social situations but I really, really wish I could be more like everyone else and not have these problems or issues in my life.
I hope that I can one day know that this just made me who I am.
But when I really don't like that person so much – that's not the best feeling.
I really want mostly to not be afraid of the world.
I spend a lot of time alone and am working hard now to make friends and it's hard. Going to school is hard. Doing anything normal feels hard.
I really want to feel confident and to trust people but right now I just can't.
"Again, yes I think it has had a huge impact on me.
But I can't let that stop me from living my life. I mean I am 18 and I have no friends, really, and it is extremely hard for me to trust anyone."
Harold Levy...hlevy15@gmail.com;
The most recent posting of this Blog presented Boyle's account of the assault launched on Sherry Sherret's family by the local Children's Aid Society following Dr. Smith's flawed opinion.
Today we continue with Boyle's report on the collateral damage caused within Brenda Waudby's family based on an email which Boyle received from Brenda Waudby's daughter Justine, who in now eighteen years old.
The story ran on March 9, 2008, under the heading, "Justine: 'I really want to not be afraid of the world."
"In an email exchange, Justine Traynor, now 18, recounted how her life was thrown into chaos the night her baby sister, Jenna, died in 1997," Boyles's story began.
"Then 7, Justine was apprehended by children's aid and spent most of the next 2 1/2 years in foster care," it continued.
"Her mother, Brenda Waudby, was charged with second-degree murder, largely on the mistaken evidence of disgraced pathologist Dr. Charles Smith.
Waudby gave birth to a son in May 1999 and he was immediately apprehended.
The baby was returned to her almost a year later under a supervision order.
The charge against Waudby was withdrawn in 1999 and a 14-year-old male babysitter later pled guilty to manslaughter.
"That night I can remember waking up to emergency personnel outside of the house and my mom standing at the door. They would not allow me to talk to my mom.
I screamed, "Where the hell is my sister?" No one replied. I was just put into a CAS worker's car. ...
"I would see my mom once, and sometimes, twice a week, Mondays and Wednesdays.
I was very confused and I missed my mom so much.
I do remember the woman who took me to see my mom.
We used to sing songs together after (the) visits to help settle me down from missing my mom.
I was so upset and confused that when I was actually able to come home I can remember ... that I said that I wanted to kill myself.
So I mean, yes, of course this has had an impact in and on my life.
"I did have to change schools, obviously homes, and I had to make new friends.
I was mostly just really confused, and I just wanted to go home to my mom. ... I had already lost my sister to a tragic event and then I lose my mom.
I really didn't understand what was happening ... It was hard to focus on school or care about friends ... when I just felt sad, scared, and confused for most of the time.
I know it sounds silly, but even having a different kind of food, having different clothing or a different way to be tucked into bed can make a big difference to a kid.
"I do dream about being a normal person, probably too much of the time.
I do not feel comfortable around people my own age because nobody is like me.
Nobody has been through the things I have been through, the way I have been through them.
"I am trying to not be angry or scared anymore but it is very hard, especially the scared part.
I am working with someone now every week to learn more about myself and how to build confidence.
I avoid most social situations but I really, really wish I could be more like everyone else and not have these problems or issues in my life.
I hope that I can one day know that this just made me who I am.
But when I really don't like that person so much – that's not the best feeling.
I really want mostly to not be afraid of the world.
I spend a lot of time alone and am working hard now to make friends and it's hard. Going to school is hard. Doing anything normal feels hard.
I really want to feel confident and to trust people but right now I just can't.
"Again, yes I think it has had a huge impact on me.
But I can't let that stop me from living my life. I mean I am 18 and I have no friends, really, and it is extremely hard for me to trust anyone."
Harold Levy...hlevy15@gmail.com;
Monday, March 10, 2008
Part Two: Will Dr. Charles Smith Ever Be Brought To Account? Wide-Ranging Views;
A story by Globe and Mail reporter Kirk Makin, published in the Globe and Mail sets out wide-ranging views on the question as to whether Dr. Smith will ever be held accountable for his actions - or failures to act.
The story ran on March 6, 2008, under the caption: "Will Charles Smith be held accountable? It remains to be seen if the Ontario pathologist whose flawed testimony led to convictions of innocent people will pay a price."
"A common thread runs through every wrongful conviction case that has convulsed the Canadian justice system: Authority figures are not held accountable," the story begins.
"The question of accountability looms large again, as the Goudge commission has just concluded its inquiry into massive failings by Charles Smith and the Ontario Office of the Chief Coroner. In the aftermath of an inquiry that exposed a startling degree of dysfunction in the coroner's system, will Dr. Smith - or anyone else - pay a price?", the story continues.
"Mr. Justice Stephen Goudge's hands will be tied when it comes to making findings of criminal or civil liability in his report, scheduled for release in late spring or summer.
Testimony and documents filed at the inquiry are off limits as far as criminal charges or professional discipline are concerned. They may be employed as an investigative tool by outside agencies, but not used as evidence.
Still, that does not stop Judge Goudge from pointing fingers.
"I think there will be a lot of fact-finding which anybody with half a brain will read as wrongdoing - without Justice Goudge actually saying that it is," said Cindy Wasser, a criminal lawyer who spent years battling for a public inquiry into the Smith affair.
Since many of Dr. Smith's mistakes involved changing or embellishing autopsy reports to conform with what he claims was his changing analysis of a case, they may fall short of providing the necessary proof.
In some cases, such as William Mullins-Johnson's conviction for the murder of his niece, Valin, Dr. Smith can also point to defence experts whose concessions bolstered his conclusions.
However, a handful of specific incidents remain that could potentially justify a criminal charge, including one in a case where a Peterborough, Ont., mother was charged with murdering her daughter, Jenna. For years after he conducted Jenna's autopsy, Dr. Smith had possession of a pubic hair that had been found on the victim's body and could have been of significant evidentiary value. In this case, a criminal charge would be justified if it could be shown that Dr. Smith intentionally suppressed the evidence.
"It is very hard to make these people accountable in our legal framework," said James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted. "So many years have passed in these cases that it makes the criminal burden of proof very hard to meet.
"There have been prosecutions in the U.K. and the United States, but in all of our wrongful conviction cases in Canada, there has never been satisfactory accountability," said Mr. Lockyer, who represents eight parents fighting for exoneration in cases where Dr. Smith was a Crown expert.
Mr. Lockyer said police and prosecutors whose actions led to wrongful convictions simply do not end up being criminally charged, fired from their jobs or disciplined. Erring judges suffer no censure. Experts who provide flawed testimony walk away, their reputations unmarred, to testify another day.
Indeed, Dr. Smith is a walking illustration of the sort of problem that may arise when an expert is not made accountable in a country as vast as Canada. Even after his errors began to surface in Ontario, Dr. Smith continued to provide expert testimony or consultations as far away as Yukon, and he later relocated to Saskatchewan and was able to briefly resume his career.
University of Toronto law professor Michael Code said the key to finding intentional wrongdoing lies in looking at what an individual believed at the time.
Stressing that his comments were general, Prof. Code said: "Anybody who actually believes that what they are doing is proper and appropriate has a complete defence to the offence of obstructing justice."
Ms. Wasser said that intent plays an equally vital role in breach-of-trust prosecutions. "It's a question of how a trial judge defines the facts," she said. "It's also a question of whether he is a 'public officer' and commits a 'fraud.' Fraud is so hard to prove. It is an offence that is really meant for your MP or city health inspector who takes a bribe.
"Did [Dr. Smith] fail in his duties of his job? Yes. But was he in that position where public trust fits? I'm not sure."
If the police were to investigate Dr. Smith over allegations of criminal negligence, they would likely fare no better. The Crown would be required to show that there was a dire consequence of his actions, such as death or bodily harm. Wrongfully convicting the innocent simply would not qualify.
Toronto defence lawyer Stephen Skurka noted that Dr. Smith was careful in his testimony not to leave himself legally vulnerable. "Smith's hollow apology that he was ignorant of his role in the courtroom and that he sincerely believed that he was an advocate for the prosecution represented a mockery of the real truth," Mr. Skurka said.
What if Dr. Smith actually were convicted of an offence?
In the most likely scenario, obstructing justice, he could be sentenced to as much as 10 years in prison; having no criminal record, he would more likely get two or three years. But no less, Ms. Wasser said, "since this was probably one of the most egregious forms of obstructing justice - to be in the position he was in and screw up the way he did."
However, she said a prison sentence would do little to protect the public or give his victims a sense of relief.
"What we really need for Smith is to ensure that he never, ever works in his profession again," she said. "Interpol could notify all international police.
"We have to know that the World Health Organization knows about this and has broadcast it. He could go to some very small country that doesn't know," Ms. Wasser said. "I'm not sure that in a country like Lithuania - where he was until recently still going to lecture - they have a clue."
Stripping Dr. Smith of his licence to practise medicine might go a long way to achieving that end, and the Ontario College of Physicians and Surgeons may do precisely that in order to restore public confidence.
Last spring, then-chief-coroner Barry McLellan referred more than a dozen of Dr. Smith's cases to the college for investigation, and lawyers for the college questioned witnesses aggressively at the Goudge hearings.
"Now they have a lot of material, there is no reason why they shouldn't be conducting a hearing to strip him of his licence," Ms. Wasser said.
While the inquiry's unmasking of Dr. Smith was anticipated, what shocked many observers was its exposure of loose standards and patchwork oversight in the Office of the Chief Coroner.
However, few foresee the possibility of further action being taken against those responsible for running the office during Dr. Smith's reign of error, former chief coroner James Young and deputy chief coroner James Cairns.
Again, the stumbling block in the way of criminal charges would be the need to show a purposeful attempt on their part to thwart justice. "You'd have to show that Young and or Cairns deliberately let Smith run his own show with a view to hurting the public," Ms. Wasser said. "I think the Crown would say that there wouldn't be a reasonable prospect of conviction."
Indeed, Dr. Young excused his lapses by pointing to a heavy workload and a penchant for merely scanning correspondence, documents and court rulings that might have alerted him to trouble on the Smith front.
Dr. Cairns more readily accepted responsibility for his lax supervision, and adopted an apologetic stand.
"Cairns was allowed to retire peacefully, and without anything happening," Ms. Wasser observed. "Should there be a way to strip him of his pension and force him to pay back his salary over the years? Yes.
"It's the same with Young," she said. "Should he be asked to resign from his current post? This was pretty bad in terms of reputation - to have all of this dirt going on in your house, and you claim you don't know anything about it."
One form of accountability for those at the centre of the Smith affair is, however, almost inevitable. A lawsuit being pursued by lawyer Peter Wardle on behalf of parents and caregivers who have been exonerated in Smith-related cases is steadily accumulating more plaintiffs.
The group received a significant boost during the inquiry, when it emerged just how closely Dr. Smith was connected to the Chief Coroner's Office. Mr. Wardle said in an interview that it will now be easy to prove that Dr. Smith was an agent of the coroner, not simply a rogue pathologist who acted on his own.
The difference is critical to the plaintiffs' search for defendants whose "deep pockets" will enable them to pay millions of dollars in damages. With Dr. Smith's medical insurers and the Ontario government on the hook for Dr. Smith's mistakes, the plaintiffs can be sure of collecting any award they receive.
However, Mr. Wardle will have more to prove. Dr. Smith's elaborate admissions of failure at the Goudge inquiry were confined to his general conduct, rather than to specific cases.
Should the cases proceed to trial, it will be necessary for Mr. Wardle to show that there was wrongdoing in individual cases. He must also overcome a general immunity from civil liability that is conferred on expert witnesses. However, a recent Ontario Court of Appeal ruling stated that this barrier is not insurmountable.
Depending on how overtly Judge Goudge decides to prod the province into compensating Dr. Smith's victims, government lawyers may sit down to negotiate a settlement. The impetus will be strong to end the nightmare of bad publicity and not risk playing hardball with victims.
"I think the public understands now that a number of people were treated terribly by the justice system, and that overall responsibility lies with the province," Mr. Wardle said.
He said compensation is particularly important to a handful of families who bankrupted themselves defending their children against criminal charges, and failed to launch legal action in time to avoid strict limitation periods.
All of which leaves one party that may never recover from the damage done to it by the Smith affair, Mr. Skurka said: "The great loser, in the end, will be the criminal justice system in this country.""
Next Posting: Will Dr. Charles Smith ever be brought to account? Part Three: Peter Newman's view. (MacLeans Magazine);
hlevy15@gmail.com;
The story ran on March 6, 2008, under the caption: "Will Charles Smith be held accountable? It remains to be seen if the Ontario pathologist whose flawed testimony led to convictions of innocent people will pay a price."
"A common thread runs through every wrongful conviction case that has convulsed the Canadian justice system: Authority figures are not held accountable," the story begins.
"The question of accountability looms large again, as the Goudge commission has just concluded its inquiry into massive failings by Charles Smith and the Ontario Office of the Chief Coroner. In the aftermath of an inquiry that exposed a startling degree of dysfunction in the coroner's system, will Dr. Smith - or anyone else - pay a price?", the story continues.
"Mr. Justice Stephen Goudge's hands will be tied when it comes to making findings of criminal or civil liability in his report, scheduled for release in late spring or summer.
Testimony and documents filed at the inquiry are off limits as far as criminal charges or professional discipline are concerned. They may be employed as an investigative tool by outside agencies, but not used as evidence.
Still, that does not stop Judge Goudge from pointing fingers.
"I think there will be a lot of fact-finding which anybody with half a brain will read as wrongdoing - without Justice Goudge actually saying that it is," said Cindy Wasser, a criminal lawyer who spent years battling for a public inquiry into the Smith affair.
Since many of Dr. Smith's mistakes involved changing or embellishing autopsy reports to conform with what he claims was his changing analysis of a case, they may fall short of providing the necessary proof.
In some cases, such as William Mullins-Johnson's conviction for the murder of his niece, Valin, Dr. Smith can also point to defence experts whose concessions bolstered his conclusions.
However, a handful of specific incidents remain that could potentially justify a criminal charge, including one in a case where a Peterborough, Ont., mother was charged with murdering her daughter, Jenna. For years after he conducted Jenna's autopsy, Dr. Smith had possession of a pubic hair that had been found on the victim's body and could have been of significant evidentiary value. In this case, a criminal charge would be justified if it could be shown that Dr. Smith intentionally suppressed the evidence.
"It is very hard to make these people accountable in our legal framework," said James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted. "So many years have passed in these cases that it makes the criminal burden of proof very hard to meet.
"There have been prosecutions in the U.K. and the United States, but in all of our wrongful conviction cases in Canada, there has never been satisfactory accountability," said Mr. Lockyer, who represents eight parents fighting for exoneration in cases where Dr. Smith was a Crown expert.
Mr. Lockyer said police and prosecutors whose actions led to wrongful convictions simply do not end up being criminally charged, fired from their jobs or disciplined. Erring judges suffer no censure. Experts who provide flawed testimony walk away, their reputations unmarred, to testify another day.
Indeed, Dr. Smith is a walking illustration of the sort of problem that may arise when an expert is not made accountable in a country as vast as Canada. Even after his errors began to surface in Ontario, Dr. Smith continued to provide expert testimony or consultations as far away as Yukon, and he later relocated to Saskatchewan and was able to briefly resume his career.
University of Toronto law professor Michael Code said the key to finding intentional wrongdoing lies in looking at what an individual believed at the time.
Stressing that his comments were general, Prof. Code said: "Anybody who actually believes that what they are doing is proper and appropriate has a complete defence to the offence of obstructing justice."
Ms. Wasser said that intent plays an equally vital role in breach-of-trust prosecutions. "It's a question of how a trial judge defines the facts," she said. "It's also a question of whether he is a 'public officer' and commits a 'fraud.' Fraud is so hard to prove. It is an offence that is really meant for your MP or city health inspector who takes a bribe.
"Did [Dr. Smith] fail in his duties of his job? Yes. But was he in that position where public trust fits? I'm not sure."
If the police were to investigate Dr. Smith over allegations of criminal negligence, they would likely fare no better. The Crown would be required to show that there was a dire consequence of his actions, such as death or bodily harm. Wrongfully convicting the innocent simply would not qualify.
Toronto defence lawyer Stephen Skurka noted that Dr. Smith was careful in his testimony not to leave himself legally vulnerable. "Smith's hollow apology that he was ignorant of his role in the courtroom and that he sincerely believed that he was an advocate for the prosecution represented a mockery of the real truth," Mr. Skurka said.
What if Dr. Smith actually were convicted of an offence?
In the most likely scenario, obstructing justice, he could be sentenced to as much as 10 years in prison; having no criminal record, he would more likely get two or three years. But no less, Ms. Wasser said, "since this was probably one of the most egregious forms of obstructing justice - to be in the position he was in and screw up the way he did."
However, she said a prison sentence would do little to protect the public or give his victims a sense of relief.
"What we really need for Smith is to ensure that he never, ever works in his profession again," she said. "Interpol could notify all international police.
"We have to know that the World Health Organization knows about this and has broadcast it. He could go to some very small country that doesn't know," Ms. Wasser said. "I'm not sure that in a country like Lithuania - where he was until recently still going to lecture - they have a clue."
Stripping Dr. Smith of his licence to practise medicine might go a long way to achieving that end, and the Ontario College of Physicians and Surgeons may do precisely that in order to restore public confidence.
Last spring, then-chief-coroner Barry McLellan referred more than a dozen of Dr. Smith's cases to the college for investigation, and lawyers for the college questioned witnesses aggressively at the Goudge hearings.
"Now they have a lot of material, there is no reason why they shouldn't be conducting a hearing to strip him of his licence," Ms. Wasser said.
While the inquiry's unmasking of Dr. Smith was anticipated, what shocked many observers was its exposure of loose standards and patchwork oversight in the Office of the Chief Coroner.
However, few foresee the possibility of further action being taken against those responsible for running the office during Dr. Smith's reign of error, former chief coroner James Young and deputy chief coroner James Cairns.
Again, the stumbling block in the way of criminal charges would be the need to show a purposeful attempt on their part to thwart justice. "You'd have to show that Young and or Cairns deliberately let Smith run his own show with a view to hurting the public," Ms. Wasser said. "I think the Crown would say that there wouldn't be a reasonable prospect of conviction."
Indeed, Dr. Young excused his lapses by pointing to a heavy workload and a penchant for merely scanning correspondence, documents and court rulings that might have alerted him to trouble on the Smith front.
Dr. Cairns more readily accepted responsibility for his lax supervision, and adopted an apologetic stand.
"Cairns was allowed to retire peacefully, and without anything happening," Ms. Wasser observed. "Should there be a way to strip him of his pension and force him to pay back his salary over the years? Yes.
"It's the same with Young," she said. "Should he be asked to resign from his current post? This was pretty bad in terms of reputation - to have all of this dirt going on in your house, and you claim you don't know anything about it."
One form of accountability for those at the centre of the Smith affair is, however, almost inevitable. A lawsuit being pursued by lawyer Peter Wardle on behalf of parents and caregivers who have been exonerated in Smith-related cases is steadily accumulating more plaintiffs.
The group received a significant boost during the inquiry, when it emerged just how closely Dr. Smith was connected to the Chief Coroner's Office. Mr. Wardle said in an interview that it will now be easy to prove that Dr. Smith was an agent of the coroner, not simply a rogue pathologist who acted on his own.
The difference is critical to the plaintiffs' search for defendants whose "deep pockets" will enable them to pay millions of dollars in damages. With Dr. Smith's medical insurers and the Ontario government on the hook for Dr. Smith's mistakes, the plaintiffs can be sure of collecting any award they receive.
However, Mr. Wardle will have more to prove. Dr. Smith's elaborate admissions of failure at the Goudge inquiry were confined to his general conduct, rather than to specific cases.
Should the cases proceed to trial, it will be necessary for Mr. Wardle to show that there was wrongdoing in individual cases. He must also overcome a general immunity from civil liability that is conferred on expert witnesses. However, a recent Ontario Court of Appeal ruling stated that this barrier is not insurmountable.
Depending on how overtly Judge Goudge decides to prod the province into compensating Dr. Smith's victims, government lawyers may sit down to negotiate a settlement. The impetus will be strong to end the nightmare of bad publicity and not risk playing hardball with victims.
"I think the public understands now that a number of people were treated terribly by the justice system, and that overall responsibility lies with the province," Mr. Wardle said.
He said compensation is particularly important to a handful of families who bankrupted themselves defending their children against criminal charges, and failed to launch legal action in time to avoid strict limitation periods.
All of which leaves one party that may never recover from the damage done to it by the Smith affair, Mr. Skurka said: "The great loser, in the end, will be the criminal justice system in this country.""
Next Posting: Will Dr. Charles Smith ever be brought to account? Part Three: Peter Newman's view. (MacLeans Magazine);
hlevy15@gmail.com;
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