Pathology of Lies: Part Two: Smith The Intimidator; Battling Against Truth And Accountability;

One aspect of Dr. Charles Smith's pathology is a tendency to call others "liars" - especially when they are speaking the truth.

A classic example is the $4 million lawsuit he launched against the Canadian Broadcasting Corporation (CBC) in connection with the Fifth Estate documentary "Diagnosis Murder", which exposed the enormous harm Dr. Smith caused to innocent parents and caregivers within Ontario's criminal justice system.

Smith claimed a whopping $2 million in general damages for libel and $2 million punitive damages from the CBC in in his statement of claim, dated February 8, 2000, which was filed as an exhibit at the Goudge Inquiry.

The legal basis of the claim was that the broadcast was "malicious, false and libelous of him (Smith) personally and in the profession", and that it contained "false defamatory innuendoes".

More specifically, it alleged that the impugned aspects of the program would make people believe that:

"(B)ased on the plaintiff's involvement in the review of the three pediatric deaths described in the broadcast, the plaintiff in the performance of his duties as a pediatric forensic pathologist is incompetent."

How misleading!

"(T)hat the plaintiff is not qualified to perform he role of pediatric forensic pathologist;

How dare they suggest that!

"The plaintiff is primarily responsible for miscarriages of justice in the first and second pediatric deaths described in the Broadcast and perhaps is primarily responsible for a miscarriage of justice in the third pediatric death described in the broadcast!

Moi? How could that possibly be true?

As a result of these unwarranted calumnies, Smith went on to say that he "personally and in the way of his profession has been greatly injured in his credit and his reputation and has been brought into scandal, odium, hatred ridicule, contempt and has suffered damage."

Poor Charles...

(The CBC was unaware at the time Smith had asked former Chief Coroner, Dr. James Young, to ask the Ontario Government to help back his private lawsuit with public funds - and the government pulled through!);

(See earlier posting: Goudge Inquiry: Young tells inquiry he persuaded Ontario Government to help fund Dr. Charles Smith's lawsuit against the CBC);

Dr. Smith's lawsuit CBC never played out in a courtroom. (It's probably the last thing he have ever wanted)!

Instead he left it hanging over the CBC like a dark cloud - a stark message to the CBC and any other media that might be tempted to portray the truth about him, that there would be consequences.

This was Smith the intimidator.

The same Dr. Smith who allegedly tried to brow-beat an Ontario Provincial Police Officer who pulled him over for speeding by threatening to curtail his office's investigations of deaths of children in her area if she insisted on giving him a ticket.

See previous postings: Goudge Inquiry: The OPP (Ontario Provincial Police) letter; Was this the real Dr. Charles Smith; Parts one, two, three and four: December, 2007);

Smith also lashed out against Macleans Magazine in connection with a feature article by reporter Jane O'Hara which, as we have seen from the evidence called at the Goudge Inquiry, has also withstood the sands of time;

Information he gave O'Hara during the course of a lengthy interview about two elaborate conversations he purported to have with a judge has been proven, during the course of the Inquiry, to be an utter fabrication.

(To think that he had the nerve to sue O'Hara and Macleans for not telling the truth!)

It is mind-boggling.

If only he had taken the stories to heart - and learned from them - instead of blasting away defensively in the courts.

Things might have turned out very differently.

Dr. Smith also fought to keep the truth about him from emerging on three other fronts:

The courts; (His legal battle to prevent any one from suing him for any alleged misconduct on the basis that he was a witness and therefore enjoyed absolute witness immunity);

The College of Physicians and Surgeons of Ontario; (His efforts, backed up by the Chief Coroner, Dr. James Young, to persuade the College that it did not have the legal jurisdiction to hear complaints against pathologists for work done on behalf of the Chief Coroner's Office, and;

Public Opinion: His lawyer's efforts to play down suggestions that Dr. Smith was responsible for miscarriages of justice while sending out the message that he he was only responsible for mistakes and errors - a theme which Dr. Smith played out to the hilt in his testimony at the Inquiry.

First, the courts; For about five years, Dr. Smith fended off law-suits - with their potential to compell him to testify and produce documents - with his arcane legal argument that he could not be sued because of a common law doctrine intended encourage people testify in legal proceedings without fear of being sued.

The Ontario Court of Appeal finally opened a door to lawsuits from the people affected by his work, by ruling that the lawsuits were focused on his death investigations – and not on the testimony he later gave in court.

Second: The College; Smith, took the legal position, that the College had no jurisdiction to investigate complaints against him for the reasons referred to above.

We now know, from evidence called at the Goudge Inquiry, that Dr. James Young, the Chief Coroner of the day, attempted to get the College to decline to receive the complaints and forward them to his office where they would be dealt with internally.

Ultimately, the Ontario Health Professions Review Board ruled against Smith and Young, and the three complaints could finally proceed - but not without significant delay and aggravation for the complainants;

A scary thought: If Dr. Smith had managed to fend off both the courts and the College he would have been totally without any external public accountability

(While, at the same time, as we know from the evidence called at the Inquiry, he was not being subjected to internal accountability by either his superiors at the Hospital For Sick Children or in the Chief Coroner's office);

Lastly, the spin being put on Dr. Smith's work by his lawyers is illustrated by a legal document they filed at the outset of the Inquiry.

As I set out in an earlier posting: "Lawyers representing Dr. Charles Smith claim some media incorrectly reported that an independent review found he had "erred" in his work, engaged in "misconduct" - and that his actions had, "directly resulted in miscarriages of justice."

Smith's lawyers make these allegations in a "factum" filed at the Goudge Inquiry on Smith's application to have his own lawyers elicit his evidence "in chief."

The lawyers refer to a "background paper" released by Dr. Barry McLellan, Chief Coroner of Ontario at that time, which announced the result of an independent inquiry of criminally suspicious and homicide cases where Dr. Charles Smith conducted autopsies or provided opinions.

"The Office of the Chief Coroner revealed that in 20 of the 45 cases, the reviewers "had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both," the lawyers say in the factum.

"Moreover, the Chief Coroner advised that there were "restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of not criminally responsible, in 13 of those cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted."

But Smith's lawyers contend that, "despite the absence of any indication in the Backgrounder that Dr. Smith had "erred" in his work, or that he had engaged in any misconduct, subsequent media coverage of the "Backgrounder" described a "revelation of errors" in Dr. Smith's work."

They also allege that, "Moreover, because the Office of the Chief Coroner advised that some of the cases in which concerns were identified had resulted in convictions, the public perception created by the media coverage was that Dr. Smith's "errors" had directly resulted in miscarriages of justice."

The "factum" also alleges that media coverage of government announcements relating to the Inquiry were "highly prejudicial"..." referring to Dr. Smith himself as "an error prone pathologist", and questioning whether his work was "reckless" or "inept.";

(See earlier posting: Smith and the media: Part Six; Smith's lawyers criticize media;)

But no lawyer's tactic could ever contain the ugly truth's about Dr. Smith that were ultimately exposed in the courts, through the College, and at the Inquiry - all of which proved to be beyond Dr. Smith's control and influence.

We have learned that he was not only a liar - both inside and outside of court - but also that he did his best to prevent others from learning the truth, and to defy accountability.

A very calculating and intimidating man.

Harold Levy...hlevy15@gmail.com;

Pathology Of Lies: Part One: Robert latimer and Charles Smith: An interesting Take:

Columnist Lynn Cockburn's comparison of Robert Latimer and Dr. Charles Smith which appeared in the Edmonton Sun on Feb. 1, 2008, under the heading "A Pathology Of Lies" is a worthy read.

At the outset I wondered what connection there could possibly between the two men - Latimer who is serving a life sentence in a British Columbia prison for killing a 12-year-old daughter suffering from cerebral palsy and Smith, a pathologist who left a lot of innocent wrecked lives in his wake,

Cockburn hones in on the character of the two men.

"Robert Latimer refuses to apologize and so, in December 2007 was refused day parole. The parole board says he shows no remorse for killing his severely disabled daughter Tracy in 1993," the column begins.

""He hasn't developed any insight into his crime," is the way the board put it," it continues.

"His sister, Pat Latimer-Martin, sees it differently. "They want him to lie," she said, and "he will never lie."

He remains unapologetic because he still believes he did the right thing in killing his daughter. The 12-year-old girl had cerebral palsy, functioned at the level of an infant and suffered five or six seizures daily.

She was in constant pain and weighed 40 lbs. She'd already had four major surgeries and was scheduled for a fifth.

It may have been the thought of that fifth operation that pushed Robert Latimer to put his daughter in his truck, pump exhaust in and let her die.

Since that time, Latimer has been sentenced to life without parole - twice. He remains in jail in William Head Institution in B.C. where he refuses to take part in the contrition game.

The man ought to take lessons from Dr. Charles Smith, former Ontario pathologist, who has been apologizing for days now and doesn't even need to. He's not trying to get out of jail. In fact, so far, he has not been incarcerated for a single day.

It may be true that Smith felt moments of remorse for his part in putting William Mullins-Johnson in jail for 12 years, or perhaps he truly experienced a brief frisson of contrition over the other 19 people falsely accused because of his arrogant and sometimes deliberately erroneous testimony.

He apologized and apologized, never looking at his victims.

But on Wednesday, under pressure from lawyer James Lockyer to offer a direct apology to Mullins-Johnson, Smith finally looked at one of his victims. And maybe the catch in his voice, the near tears were real, just for a second, when he said "I'm sorry."

Smith had a lot to apologize for - Mullins-Johnson spent a dozen years in jail for supposedly sodomizing and strangling his niece. Pathologists have now termed that death a natural one.

When it comes to apologies, I'll take Latimer, the man who refuses to lie in order to get parole. He refuses to take the easy way out in order to get out. And so there he'll stay, a prisoner in a Kafka novel, until he smartens up and learns to lie properly.

On the other hand, Smith has done nothing but lie for years. He lied and lied and lied. He excused himself by saying his training in pathology was minimal and that he was ignorant.

And, worst of all, he said he did not understand until recently that a pathologist is supposed to be impartial. According to Smith, he thought his job was to back up the prosecution's case.

As an aside, after a review of Smith's work began in 2005, he resigned from Sick Kids Hospital in Toronto and decamped to Saskatoon where he got a job as a pathologist. Seems he did not bother to admit he was the person under review in Ontario. He was fired three months later.

Smith is unlikely to spend a single day in jail. More's the pity. It would not be unjust if he were to be sentenced to 12 years for Mullins-Johnson, 19 for the others he victimized, five years for stupidity, five for incompetence and five for arrogance. To run consecutively.

But it is Mullins-Johnson who must get the last word.

When Smith offered his tearful apology on Wednesday, Mullins Johnson responded: "You destroyed my family.... They hate me because of what you did to me.

"I'll never forget that, but for my own healing ... I must forgive you.""

Harold Levy: hlevy15@gmail.com