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;

Part Two: The Doctor And The Judge; Fact Or Fantasy? Seeing Through The Apology;

The apology that Dr. Charles Smith made earlier today to Judge Patrick Dunn for two comments to reporter Jane O'Hara rang hollow in this Blogster's ears.

It still leaves open the possibility that Smith's account of his two alleged conversations with Dunn were a full-blown fantasy.

Smith admitted that his statement that Dunn told him that the babysitter in the Amber's case was "guilty" was false.

Smith also admitted that his statement that Dunn told him he believed Amber's case would have had a different result if tried in the 1990's because of new scientific knowledge was false.

His justification for making these two false statements he acknowledged were "harmful" to Dunn's reputation is that, "I believe I heard what I wanted to hear."

That's ludicrous.

It's like saying, "forgive me for my opinions that caused innocent people to be jailed, lose their other children to the authorities, and have their names placed on sexual offender lists, because that is what I wanted to believe."

The fact remains that even today Smith insisted that Dunn discussed Amber's case with him - while Dunn, deposed, in a sworn affidavit, that no such discussions had ever occurred.

During the course of the day Smith made numerous apologies to the innocent people he had caused to suffer.

These apologies had one thing in common: They were all made in cases where his misconduct was so notorious that there was nothing else that he could do.

I was not left with any confidence that these apologies came from his heart - if, indeed, he truly has one.

On several occasions, Dr. Smith told the Inquiry that he was "embarrassed" by his actions - which means, I suppose that they might sully the reputation of the great Dr. Charles Randal Smith.

How embarrassing!

If I seem angry and more sarcastic than usual - because even today - the day on which he says he is embarrassed, humbled, and contrite - there is something fundamental that he still does not seem to understand.

It is that pathologists who work in the criminal justice system bear a huge responsibility to be neutral, fair, thorough and accurate - because if they abuse their power innocent people may suffer.

On another note, I can't imagine how difficult it must have been for the fifteen individuals and family members who were sitting just a few feet away from Dr. Smith, as he tried to justify much of his misconduct.

One of them described her reasons for being present when Smith took the witness stand in an email She posted to friends over the Internet:

"I want this man to see he has not broken me nor my family nor my children," she said.

"I want this man to see that I still have a hell of a lot of fight left in me.

I want this man to know this is just the beginning for me yet the complete end for him.

I hope he loses he license to practice period.

If he can make mistakes and affect peoples lives in death then I am sure he has no problem doing it in life."

Another had to flee the hearing room in obvious distress just moments after Dr. Smith had begun testifying.

I wonder if I would have been able to show such restraint when finally confronted with this obnoxious, pedantic, professorial, and yes, arrogant man, who tore a hole in my life at a time when I should have been allowed to mourn the sudden loss of my child.

Their dignity is exemplary.

(My thanks to the reader who promptly pointed out that I had mixed up the Nicholas and Amber cases). This type of input is greatly appreciated. I have promptly made the necessary changes. HL;

Harold Levy; hlevy15@gmail.com;

Part One: Smith Takes The Witness Box; Fact or Fantasy; The Doctor And The Judge;

"AND THAT WAS THE FIRST OCCASION IN WHICH HE (JUDGE PATRICK DUNN) TOLD ME THAT (THE BABYSITTER) WAS GUILTY AS SIN…"

DR. CHARLES SMITH TO REPORTER JANE O’HARA IN TAPED INTERVIEW

One of the most fascinating documents to emerge during the Goudge inquiry is an affidavit from a judge denying statements by Dr. Charles Smith to a reporter.

To say the least, it is highly unusual for a judge to swear an affidavit for consideration in a public inquiry.

This is the first time that I have ever seen it happen.

The Judge is Patrick Dunn, the provincial court judge who acquitted a ten 12-year-old babysitter in Timmins, Ontario, with a lengthy judgment, released on July 25, 1991, which was harshly critical of the evidence given by Dr. Smith and the Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) team.

The reporter is Jane O'Hara, who obtained Smith's controversial comments during a lengthy interview in preparation of a major article on Smith for MacLean's magazine.

Smith's controversial quotes to O'Hara are particularly significant this morning as as one of the dominant themes that has emerged during the Inquiry is his credibility.

I am referring particularly to matters such as his credibility in his work (the honesty and completeness of his forensic reports), his testimony under in oath in court, his defence of his conduct to the College of Physicians and Surgeons of Ontario, and his comments to reporters.

But let's focus for now on the information he gave O'Hara, as reflected in a transcript of the interview which was filed at the inquiry:

O'Hara: Okay now somewhere along the line when I was doing my research somebody mentioned to me that during the trial that you had said and I'm not sure you had said it but that the judge apparently told you during the trial that (the babysitter) was guilty);

Smith: He told me that on several occasions;

O'Hara: Was that in open court?

Smith: No, I'll tell when it first occurred and this is all off the record.

O'Hara: Sure;

Smith: I testified, I flew up there, being told I would be on the stand for a few hours. And I can't remember the day of the week but I ended up there on a Friday or something and then I was flying back to Toronto for the weekend. And at that time both Canadian and Air Canada or Air Ontario flew up to Timmins. Ummm at lunch time, just as we were going to break Judge Dunn asked me how I was returning to Toronto and I indicated to him unbeknown st to me, he was aware that the Canadian flight I was on was cancelled and he made arrangements for me to have my ticket moved to the other airline and then he made arrangements for me to sit with him on the airplane. And I walked onto the airplane and was stunned when I found myself sitting next to this man, who immediately began discussing this case with me.

O'Hara: At this point you're flying back down to Toronto?

Smith: Yeah, I'm in the middle of my testimony. And I felt extremely uncomfortable discussing the case with him and he said it's fine, because I will base my evidence on the evidence in Court. He said I can be hearer of the fact and trier of the fact and this is fine. And that was the first occasion in which he told me that (the babysitter) was guilty as sin. And he made arrangements when I flew back Sunday afternoon to go back and testify some more, I found myself once again sitting beside him on the airplane which I found extremely, extremely unusual. So that was yeah, the conversation came from there. I didn't know how to handle the man or the situation. It was absolutely bizarre. As soon as I got to Timmins on the Sunday night and the crown attorney, not the one who was prosecuting the case, but the senior crown a guy named Dave Thomas met me at the airport. I said this thing has happened to me I don't know how to interpret it, and what does it mean. And I told Thomas this and I said do I continue, what do we do here? And he said there's been a number of problems in this case and that he would simply take it under advisement and I was simply to go on and testify.

O'Hara: Wow, I think that's dynamite. Were you actually blown away when you read the judge's 75-page judgment.

Smith: I never bothered reading the judgment;..."


During the course of the interview Smith told O'Hara that he had a second discussion about the case with Smith at a family law conference in Toronto about a year after the decision was released.

And now for the judge's affidavit:

The alleged discussion on the airplane:

"During the course of the trial, I flew back and forth between Toronto and Timmins. On one occasion, I was on the same flight from Timmins to Toronto as Dr. Charles Smith. Dr. Smith and I exchanged pleasantries on the flight; Although I do not have a specific recollection of my conversation with Dr. Smith, I am certain that I did not discuss the merits of the case or the evidence with Dr. Smith..."

Dunn's alleged making of Dr. Smith's travel arrangements:

"I have no recollection of making any arrangements with regards to Dr. Smith's airline tickets and I do not believe I would have made such arrangements;"

Dunn's sworn comments on a statement Smith made to the College of Physicians and Surgeons of Ontario dated May 4, 1992 - filed in evidence at the Inquiry - in which Smith says that during the trial Dunn told him he believed (the babysitter) was guilty, and that he agreed with evidence that given by himself and other members of the Hospital for Sick Children Suspected Child Abuse and Neglect (SCAN) team, which Dunn had rejected at the trial:

"At no point during the course of the trial did I discuss Dr. Smith's evidence with him or indicate to Dr. Smith that I believed (the babysitter) to be guilty. I also did not indicate to Dr. Smith that I believed the opinions provided by Drs. Barker, Driver and Smith, as alleged in Dr. Smith's letter to the (College)";

Judge Dunn also made short shrift of Smith's claim that they had discussed the Timmins case at a family law conference, saying: "...I have no recollection of discussing the (Timmins) case with Dr. Smith at the family law conference or at any other time. I would not have discussed the case with Dr. Smith. I would let the written judgment speak for itself."

To this Bloggist, Judge Dunn's affidavit goes to the heart of Dr. Smith's credibility and could raise questions about his (Smith's) mental state depending on who you believe - a provincial court judge in a sworn affidavit or Dr. Charles Randal Smith.

If the judge was to be believed - that he never, ever, discussed the Timmins case with Smith - (let alone told him that the 12-year old babysitter was "guilty as sin"0 -the implication would be that Smith has constructed an elaborate fantasy over two chance meetings (on the airplane and at the family law conference). This would be a detailed fantasy containing very specific conversations, and very specific acts, such as the alleged arrangement of airline tickets and seating accommodation on the plane.

If the doctor is to be believed, Judge Dunn has broken some of the serious rules and traditions that govern judges: They do not talk to witnesses during the course of trials; They do not discuss the merits of trials after they are completed (let alone with witnesses like Smith. This would be utterly improper and could land the judge before a hearing of the Judicial Counsel; (All of which explains why Dunn would have taken the extraordinary step of filing an affidavit with the Goudge Inquiry);

The implications of this credibility issue are extremely serious to both the judge and to Dr. Smith.

Why would Judge Dunn break the cardinal rules? I can't imagine any reason why any judge would put his or her job on the line, especially a judge who had presented such a careful, detailed analysis of all of the scientific evidence - prosecution and defence - in his decision?

Why would Dr. Smith offer a false account to the reporter and the College? We know that the Hospital for Children SCAN team went into "damage control" after Dunn's decision was released. We also know that the Dunn's decision was viewed as a set-back for doctors involved in the ideological movement towards criminalizing as "baby-shaking syndrome) cases which previously had been categorized as "Sudden Infant Death Syndrome (SIDS); Indeed, Dr. Smith described the influential role he was playing in the Shaken Baby Syndrome movement, in an email to O'Hara, dated May, 5, 2001, which reads, in part:

"Some of my cases have triggered research activities into forensic pathology. For instance, you are familiar with the (babysitter) case from Timmins. I was frustrated by the judge's apparent inability to understand the complex medical issues, and so began looking for a way to lay to rest some of the questions which the case posed. As a result we published the largest series of shaken baby syndrome (SBS) in the literature, while we were identifying an autopsy finding which may be unique to this form of injury. (One of the controversies at trial was whether there was such a thing as SBS, let alone whether shaking could kill in the absence of blood impact injury; Our research answers those questions.) Several years ago I was invited to present my special investigation in child abuse to the provincial association of family court judges. Judge Dunn who presided over the (Timmins) case was in the audience and he approached me later to discuss the case. We agreed that if the case had gone to trial in the late 1990's, as opposed to the early 1990's, as opposed to the early 1990's, the uncertainties of that trial would have been obviated. (Dunn denied that this alleged conversation occurred in his affidavit - as well as swearing under oath that he never discussed the Timmins case with Smith.H.L.)"

In the context of the Inquiry, if, Judge Dunn - who enjoys an impeccable professional and personal reputation among lawyers and other judges in his area - were to be believed, then all of Dr. Smith's actions and testimony would have to be viewed through the prism that he has difficulty distinguishing fantasy from truth.

For many years however, Dr. Smith's testimony was largely accepted as gospel by judges, crown attorneys, police officers, and even some defence lawyers.

But he won't walk up to the witness stand this morning as the renowned Dr. Charles Randal Smith whose word was gold throughout the world of forensic pathology, backed up by the Hospital For Sick Children and the Chief Coroner's Office.

He will have to stare out at the many individuals and families who have been effected by his erroneous opinions - many of themwill be present - and he will be required to testify under oath, as to his actions.

The tables have certainly turned.

Next posting: Smith Takes the Witness Stand: Fact or Fantasy; Part Two;

Harold Levy...hlevy15@gmail.com;