"SPEAK TO PATHOLOGIST, DR. CHARLES SMITH, OF SICK KIDS HOSPITAL RE. UPDATE. STILL IS OF THE OPINION THAT DEATH WAS FROM EITHER TWO (2) SOURCES: SHAKEN BABY, BLUNT TRAUMA. HE HAS CONSULTED WITH DR. HUYER, SCAN PROGRAM. THEY BOTH HAVE MISGIVINGS ABOUT CRIMINAL ELEMENT. QUOTE, 'HAS STRUGGLED WITH THIS BEING CRIMINAL. AGREES TO MEET WITH MARY HALL ANY TIME.'"
NOTE WRITTEN BY TORONTO HOMICIDE OFFICER DETECTIVE JOHN LINE IN RELATION TO KUMAR INVESTIGATION. DETECTIVE LINE WAS REFERRING TO MARY HALL WHO WAS DESCRIBED BY LAWYER JAMES LOCKYER AS HEAD CROWN ATTORNEY IN THE SCARBOROUGH OFFICE OUT OF WHICH KUMAR WAS PROSECUTED;
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In an earlier posting I referred to the shocking disclosure from the Goudge Inquiry that Dinesh Kumar's lawyer's testified that he had not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.
That decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN (Suspected Child Abuse And Neglect) team.
Two other shocking disclosures relating to Gaurov's case also emanated from the Inquiry;
The second - the subject of this post - was that Dr. Charles Smith had informed homicide investigators that both he, and Dr. Dirk Huyer, the head of the SCAN team at the Hospital for Sick Children In Toronto were both "struggling" to find criminality in the case - a far cry from the language in their official reports;
The section of transcript relating to this disclosure is found in lawyer James Lockyer's cross-examination of Dr. Helen Whitwell, the independent examiner who reviewed Gaurov's case at the request of former Chief Coroner, Dr. Barry McLellan;
It reads as follows:
MR. JAMES LOCKYER: And so in Gaurov's case, whilst we have -- the preexisting condition may have been responsible for what ultimately caused Gaurov's death, beyond that, potentially, as Dr. Pollanen has pointed out, we don't even seem to have the triad in the first place.
DR. HELEN WHITWELL: No, you don't.
MR. JAMES LOCKYER: I don't know quite why Dr. Smith said this, but he seems to have had a lot of trouble with the case himself, and we got some notes just a -- a few days ago in this regard. If we could go to PFP302155; And what we're looking at here is the notes of one (1) of the officers in charge of the case, Detective Lines (sic). And if you go -- could you -- I'm sorry, I don't have a page number here. Could you just keep -- keep moving and I'll tell you when to stop through these notes. We're looking for March 23rd, which you'll see at the top of one (1) of the pages. And if you look at the entry for 2:55 on March 23rd -- and if you could raise the page a little so we can go to the bottom of it -- what it says there, and this is Detective Lines, one (1) of the officers in charge, and what he's noted March 23rd of 1992, which is post-autopsy, he's noted: "Speak to pathologist, Dr. Charles Smith, of Sick Kids Hospital re.
update. Still is of the opinion that death was from either two (2) sources: shaken baby, blunt trauma. He has consulted with Dr. Huyer, SCAN program. They both have misgivings about criminal element. Quote, 'Has struggled with this being criminal. Agrees to meet with Mary Hall any time.' And I can just tell you, Dr. Whitwell, that Mary Hall was then a -- the head Crown attorney in the Scarborough office where --
DR. HELEN WHITWELL: Right.
MR. JAMES LOCKYER: -- out of which Mr. Kumar was prosecuted.
So it would seem, at least in the early days -- and this is before Gaurov's father is charged with the second degree murder of his son Gaurov -- that even after the autopsy, Dr. Smith, and indeed Dr. Huyer of the SCAN unit, to use the -- to use the quote, "struggling" with the question of whether any crime had
been committed in Gaurov's death in the first place. I don't think you would have known that. We only got this document about a week ago --
DR. HELEN WHITWELL: Right.
MR. JAMES LOCKYER: -- through -- through the officer himself providing it.
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We are told that this note was written before Dinesh Kumar was encouraged by prosecutors to plead guilty to criminal negligence causing his son Gaurov's death in order to avoid being prosecuted for murder.
The existence of such a note - in which both Dr. Smith and the Head of the SCAN team are struggling to find any scientific evidence of criminality in the case - clearly raises the prospect that there was no reasonable possibility of obtaining a conviction.
The last time I looked at a Criminal Code - Criminal Negligence Causing Death was just what it sounded like: a very serious criminal offence.
So we have to wonder why the prosecutors who, as crown attorneys, also hold the function of being officers of the Court, proceeded to take Mr. Kumar to Court on any criminal charge at all - whether they were bound by the law to withdraw all charges against him or not.
A very shocking revelation indeed, which, it seems, only raised its ugly head publicly more than 16-years after Mr. Kumar pleaded guilty to an offence he did not commit, to avoid life in prison for murder on the evidence of the celebrated Dr. Smith's evidence supported by the world famous Hospital for Sick Children, to regain custody of his son, and to avoid deportation from Canada;
How could our Canadian Justice system fall so low?
Next Posting: Part Nine; Gaurov's Father; A Third Shocking Revelation From The Goudge Inquiry;
Harold Levy...hlevy15@gmail.com;
Showing posts with label revelation. Show all posts
Showing posts with label revelation. Show all posts
Saturday, June 7, 2008
Tuesday, January 29, 2008
A Stunning Revelation From Dr. Smith's Very Own Lips: He Was A Member Of The Prosecution Team And Was Committed To Helping It Win.
"AND I WAS A -- A LITTLE CONCERNED ABOUT BEING AN ADVOCATE, BECAUSE BY THAT POINT IN THE 1990's, I KNEW AT LEAST IN THEORY, IF NOT PRACTICE, THAT I SHOULD NOT BE AN ADVOCATE".
DR. CHARLES SMITH TO COMMISSION COUNSEL LINDA ROTHSTEIN;
During the many years that I have been reporting on Dr. Charles Smith I strongly suspected that he regarded himself as a member of the prosecution team - instead of as an independent witness for the Crown.
Of, course, Dr. Smith did not declare his bias to the jury.
To the contrary, he appeared to be a sincere, objective and conscientious scientist who was there to help the judge and jurors decide the case.
So I almost fell off my chair yesterday when Dr. Smith candidly admitted to Justice Steven Goudge that for many years he saw himself as a member of the prosecution team and believed his job was to help the Crown win the case - and that it was all part of the war against the sexual abuse of children.
Dr. Smith made this stunning admission after Commission Counsel Linda Rothstein asked him to expand on his earlier testimony that, "I Fell victim to my tendency to become dogmatic, adversarial, too defensive, speak in black and white terms."
Here, without editorial comment, is a portion of the transcript from yesterday's hearing in which Dr. Smith makes his stunning admission:
"DR. CHARLES SMITH: in the very beginning when I went to court in the -- on the few occasions in the 1980s, I -- I honestly believed it was my role to support the Crown attorney. I was there to make a case look good.
That's being very blunt but that was the why I felt and I know when I talked with some of my other colleagues especially those who were junior, we -- we
shared the same -- the same kind of an attitude.
And -- and I think it -- it took me a long time, years, to acknowledge that my role was really not to make the Crown's case, or to make the case of whoever wanted me in court, but really to be much more impartial.
And though into the 1990s I would have told you that that was what my role was, I -- I think I was pretty lousy at executing it. I'm sorry for that -- for that language. I think I was poor at executing it.
Though I knew what to do, I didn't do it and so my -- my understanding or my book knowledge was not -- was not borne out by my execution in court.
MS. LINDA ROTHSTEIN: And did your desire to make a case for the Crown lead as well to its converse? A feeling that you were there to refute the defence case?
DR. CHARLES SMITH: I -- I certainly felt tat pressure at times when I walked into court; that pressure from a Crown attorney, yeah.
COMMISSIONER STEPHEN GOUDGE: Where did you get the sense originally that that was the role?
DR. CHARLES SMITH: I -- I think this is an expression of ignorance. The first time I went into a court case, you know, I had a -- I had a diagnosis of
head injury, of non-accidental head injury.
My colleagues had come to a similar thing and I think as we discussed the case in the hospital, it was our -- our view that this was a non-accidental head
injury and we were going out there to make sure that a
judge and jury understood it.
And as I spoke to my colleagues from, you know, radiology or -- or what was, I think, the forerunner to the to SCAN Team, that was the sense that I had.
As I think back on it now, I wonder to what degree the -- the -- sometimes the advocacy role that was used by some at the hospital coloured my thinking.
I certainly didn't understand sort of that concept of advocacy in the -- in the early '80s but I believe that I was giving an opinion as part of a group
that was supposed to -- to make -- make it very clear to everyone what the right diagnosis was.
COMMISSIONER STEPHEN GOUDGE: And who at the hospital had an advocacy role then?
DR. CHARLES SMITH: Oh, there -- there -- before the SCAN Team was kind of redesigned under Dr. Mian, which would have been -- I'm -- I'm sorry I can't
remember the year, it would have been mid or late '80s perhaps, there was prior to that others who were involved in those cases, and -- and they were -- they were
proactive in -- in their investigation.
As well, one (1) of the radiologists who I leaned heavily on, a -- a very senior gentleman, also was very clear cut in black and white and -- and that -- and...
CONTINUED BY MS. LINDA ROTHSTEIN:
MS. LINDA ROTHSTEIN: Who was that, Dr. Smith?
DR. CHARLES SMITH: Dr. Reilly, R-E-I-L-L-Y. Bernard, Bernie Reilly, who I presume he's deceased now because I was junior and he was towards the end of his career and --
COMMISSIONER STEPHEN GOUDGE: And this was a general atmosphere of advocacy against child abuse?
Is that --
DR. CHARLES SMITH: Yes. I think -- I think that's a fair way of doing it.
And -- and please understand, sir, that his is a period of time where the whole area of child abuse is just kind of coming into being and so there was a sense that this is a new area, we need to pay attention to it.
And -- and it was almost wanting to educate and kind of bringing attention to this, and I think that might have been part of that advocacy community, or environment, or culture that -- that was exist -- in existence at that time.
COMMISSIONER STEPHEN GOUDGE: Thank you.
CONTINUED BY MS. LINDA ROTHSTEIN:
MS. LINDA ROTHSTEIN: So just to follow up on that point before the break, Dr. Smith, you would share the view of those who've already told us that in
the mid '80s there as a concern that child abuse was under reported?
DR. CHARLES SMITH: Yes. Yes, I agree with that.
MS. LINDA ROTHSTEIN: That child abuse was under detected by health care professionals across the board?
DR. CHARLES SMITH: I believe that's accurate.
MS. LINDA ROTHSTEIN: That child abuse was under prosecuted by the State?
DR. CHARLES SMITH: I think that -- I -- I think at that time, I would have agreed with that, yes.
MS. LINDA ROTHSTEIN: And that there had to be changes made in order to reverse those trends?
DR. CHARLES SMITH: Yes. I agree with that, yes.
MS. LINDA ROTHSTEIN: And you saw it, in part, as your job to try and reverse those trends?
DR. CHARLES SMITH: I -- I think if you'd asked me that then I would have said no, but -- but I think I -- I did feel that way.
It was many years later when -- when mention was made of the possibility of me being part of the SCAN Team, and by that point in time -- but this is many years later -- I recognized that the SCAN Team could be more of an advocate that I could be.
And -- and I believe that was by definition their role, and I was reluctant to -- to be painted with that brush. I wasn't part of the SCAN Team; I didn't see live patients.
And I was a -- a little concerned about being an advocate, because by that point in the 1990s, I knew at least in theory, if not practice, that I should not be an advocate.
But if you set the clock back five (5) or ten (10) years earlier, I believe I was in -- I was part of that advocacy culture, though I don't think I would have recognized it or stated it at that time.
MS. LINDA ROTHSTEIN: And by the mid '90s, how would you have characterized your approach?
DR. CHARLES SMITH: Well, I'd like -- I'd like to think, or I thought that I was sort of down the middle of the road, but obviously in -- in situations, I
was not, and I veered to the left or to the right at times."
As I heard these word coming out of the mouth of Dr. Charles Smith, I wondered how they were sounding to Sherry Sherret, Brenda Waudby, Lianne Thibeault, Bill Mullins-Johnson and the others present in the hearing room who were so sorely affected by his opinions over the years.
Apart from losing their children, the involvement of Dr. Charles Smith must have been the worst possible nightmare that could have entered their lives.
Now they learn that he saw himself as part of the prosecution team.
How far would he go to help the prosecution win?
That's question surely goes to the heart of this Inquiry.
Harold Levy...hlevy15@gmail.com
DR. CHARLES SMITH TO COMMISSION COUNSEL LINDA ROTHSTEIN;
During the many years that I have been reporting on Dr. Charles Smith I strongly suspected that he regarded himself as a member of the prosecution team - instead of as an independent witness for the Crown.
Of, course, Dr. Smith did not declare his bias to the jury.
To the contrary, he appeared to be a sincere, objective and conscientious scientist who was there to help the judge and jurors decide the case.
So I almost fell off my chair yesterday when Dr. Smith candidly admitted to Justice Steven Goudge that for many years he saw himself as a member of the prosecution team and believed his job was to help the Crown win the case - and that it was all part of the war against the sexual abuse of children.
Dr. Smith made this stunning admission after Commission Counsel Linda Rothstein asked him to expand on his earlier testimony that, "I Fell victim to my tendency to become dogmatic, adversarial, too defensive, speak in black and white terms."
Here, without editorial comment, is a portion of the transcript from yesterday's hearing in which Dr. Smith makes his stunning admission:
"DR. CHARLES SMITH: in the very beginning when I went to court in the -- on the few occasions in the 1980s, I -- I honestly believed it was my role to support the Crown attorney. I was there to make a case look good.
That's being very blunt but that was the why I felt and I know when I talked with some of my other colleagues especially those who were junior, we -- we
shared the same -- the same kind of an attitude.
And -- and I think it -- it took me a long time, years, to acknowledge that my role was really not to make the Crown's case, or to make the case of whoever wanted me in court, but really to be much more impartial.
And though into the 1990s I would have told you that that was what my role was, I -- I think I was pretty lousy at executing it. I'm sorry for that -- for that language. I think I was poor at executing it.
Though I knew what to do, I didn't do it and so my -- my understanding or my book knowledge was not -- was not borne out by my execution in court.
MS. LINDA ROTHSTEIN: And did your desire to make a case for the Crown lead as well to its converse? A feeling that you were there to refute the defence case?
DR. CHARLES SMITH: I -- I certainly felt tat pressure at times when I walked into court; that pressure from a Crown attorney, yeah.
COMMISSIONER STEPHEN GOUDGE: Where did you get the sense originally that that was the role?
DR. CHARLES SMITH: I -- I think this is an expression of ignorance. The first time I went into a court case, you know, I had a -- I had a diagnosis of
head injury, of non-accidental head injury.
My colleagues had come to a similar thing and I think as we discussed the case in the hospital, it was our -- our view that this was a non-accidental head
injury and we were going out there to make sure that a
judge and jury understood it.
And as I spoke to my colleagues from, you know, radiology or -- or what was, I think, the forerunner to the to SCAN Team, that was the sense that I had.
As I think back on it now, I wonder to what degree the -- the -- sometimes the advocacy role that was used by some at the hospital coloured my thinking.
I certainly didn't understand sort of that concept of advocacy in the -- in the early '80s but I believe that I was giving an opinion as part of a group
that was supposed to -- to make -- make it very clear to everyone what the right diagnosis was.
COMMISSIONER STEPHEN GOUDGE: And who at the hospital had an advocacy role then?
DR. CHARLES SMITH: Oh, there -- there -- before the SCAN Team was kind of redesigned under Dr. Mian, which would have been -- I'm -- I'm sorry I can't
remember the year, it would have been mid or late '80s perhaps, there was prior to that others who were involved in those cases, and -- and they were -- they were
proactive in -- in their investigation.
As well, one (1) of the radiologists who I leaned heavily on, a -- a very senior gentleman, also was very clear cut in black and white and -- and that -- and...
CONTINUED BY MS. LINDA ROTHSTEIN:
MS. LINDA ROTHSTEIN: Who was that, Dr. Smith?
DR. CHARLES SMITH: Dr. Reilly, R-E-I-L-L-Y. Bernard, Bernie Reilly, who I presume he's deceased now because I was junior and he was towards the end of his career and --
COMMISSIONER STEPHEN GOUDGE: And this was a general atmosphere of advocacy against child abuse?
Is that --
DR. CHARLES SMITH: Yes. I think -- I think that's a fair way of doing it.
And -- and please understand, sir, that his is a period of time where the whole area of child abuse is just kind of coming into being and so there was a sense that this is a new area, we need to pay attention to it.
And -- and it was almost wanting to educate and kind of bringing attention to this, and I think that might have been part of that advocacy community, or environment, or culture that -- that was exist -- in existence at that time.
COMMISSIONER STEPHEN GOUDGE: Thank you.
CONTINUED BY MS. LINDA ROTHSTEIN:
MS. LINDA ROTHSTEIN: So just to follow up on that point before the break, Dr. Smith, you would share the view of those who've already told us that in
the mid '80s there as a concern that child abuse was under reported?
DR. CHARLES SMITH: Yes. Yes, I agree with that.
MS. LINDA ROTHSTEIN: That child abuse was under detected by health care professionals across the board?
DR. CHARLES SMITH: I believe that's accurate.
MS. LINDA ROTHSTEIN: That child abuse was under prosecuted by the State?
DR. CHARLES SMITH: I think that -- I -- I think at that time, I would have agreed with that, yes.
MS. LINDA ROTHSTEIN: And that there had to be changes made in order to reverse those trends?
DR. CHARLES SMITH: Yes. I agree with that, yes.
MS. LINDA ROTHSTEIN: And you saw it, in part, as your job to try and reverse those trends?
DR. CHARLES SMITH: I -- I think if you'd asked me that then I would have said no, but -- but I think I -- I did feel that way.
It was many years later when -- when mention was made of the possibility of me being part of the SCAN Team, and by that point in time -- but this is many years later -- I recognized that the SCAN Team could be more of an advocate that I could be.
And -- and I believe that was by definition their role, and I was reluctant to -- to be painted with that brush. I wasn't part of the SCAN Team; I didn't see live patients.
And I was a -- a little concerned about being an advocate, because by that point in the 1990s, I knew at least in theory, if not practice, that I should not be an advocate.
But if you set the clock back five (5) or ten (10) years earlier, I believe I was in -- I was part of that advocacy culture, though I don't think I would have recognized it or stated it at that time.
MS. LINDA ROTHSTEIN: And by the mid '90s, how would you have characterized your approach?
DR. CHARLES SMITH: Well, I'd like -- I'd like to think, or I thought that I was sort of down the middle of the road, but obviously in -- in situations, I
was not, and I veered to the left or to the right at times."
As I heard these word coming out of the mouth of Dr. Charles Smith, I wondered how they were sounding to Sherry Sherret, Brenda Waudby, Lianne Thibeault, Bill Mullins-Johnson and the others present in the hearing room who were so sorely affected by his opinions over the years.
Apart from losing their children, the involvement of Dr. Charles Smith must have been the worst possible nightmare that could have entered their lives.
Now they learn that he saw himself as part of the prosecution team.
How far would he go to help the prosecution win?
That's question surely goes to the heart of this Inquiry.
Harold Levy...hlevy15@gmail.com
Sunday, January 27, 2008
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;
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;
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