Part Nine: Eight: Gaurov's Father; A Third Shocking Revelation From Inquiry; Brother collapsed Shortly Before Gaurov's Death: Hereditory Factor?

"THE HISTORY STATES THAT HE (GAUROV'S BROTHER SAUROB)WAS PLAYING WHEN HE SUDDENLY FELL ON THE GROUND - APPARENTLY THE FATHER GAVE HIM SOMETHING, AND COMPRESSIONS AND MOUTH TO MOUTH. AND THEN THERE'S A SUGGESTION THERE MAY HAVE BEEN A SIMILAR EPISODE LAST YEAR;"

LAWYER JAMES LOCKYER TO COMMISSIONER STEPHEN GOUDGE DURING CROSS-EXAMINATION OF PROFESSOR HELEN WHITWELL;

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"BUT IF WE ASSUME FOR A MOMENT THAT JUST DAYS BEFORE GAUROV DIED HIS ONE (1) YEAR OLD BROTHER, SAUROB HAD BEEN THROUGH, WHAT COULD BE DESCRIBED AS A SIMILAR EXPERIENCE TO GAUROV, WOULD THAT SUGGEST THAT THERE MIGHT BE ANY KIND OF -- OF HEREDITARY PROBLEM WITHIN FAMILY?

DR. HELEN WHITWELL: "I DON'T THINK I CAN REALLY ANSWER THAT. IT MAY OR MAY NOT. I MEAN, WE -- WE JUST DON'T KNOW."

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LAWYER JAMES LOCKYER AND PROFESSOR HELEN WHITWELL;

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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;

Now the third: It has been disclosed during the Goudge Inquiry that in March 1992, just a few days before Gaurov's death his brother Saurob, was seen at a walk-in clinic at the Hospital for Children for spells.

Lawyer James Lockyer told the Inquiry that he had "just obtained" Saurob's medical records through a request.

Lockyer said the the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed. Apparently the father gave him something, andC compressions and mouth to mouth. And then there's a suggestion there may have been a similar episode last year.

Lockyer began this portion of his cross-examination of Professor Helen Whitwell - the independent reviewer of Gaurov's case - by informing Commissioner Steven Goudge that, "Another document that we just obtained through a request is the medical records, or -- the medical records of Dinash's (phonetic) brother, Saurob.

And if we go to PFP302210 -- now it's -- it's the best we have so far, and we're trying to get a better copy of this document -- but if you look at this document, it's addressed to Dr. Rana, who was Saurob's -- and indeed still is -- Saurob's physician.

Saurob is now -- I think I'm right in saying -- seventeen (17) years old and, Mr. Commissioner, he -- he is with his parents, I'm glad to say.

Any event, it's a report from the Hospital for Sick Children.

If we go to the second page, you'll see this document.

I'm afraid you -- we don't know who it's from because you can't quite read it.

But if you look at this document on page 1 -- if you could show us page 1 again? There might a Dr. Bard, if there is such a doctor at the Hospital for Sick Children.

And you'll see -- and this is a matter of days before Gaurov's death.

If you could raise the page, give us the bottom of the page.

COMMISSIONER STEPHEN GOUDGE: Is there a date on it somewhere?

JAMES LOCKYER: Well, it's -- I think it's mark -- I'm right in saying we've worked it out as being March 1st, 1992. It might be March 11th or 21st.

it's -- it's -- there's a one (1) and we have reason to think it's March. And I think that becomes apparent.

CONTINUED BY MR. JAMES LOCKYER:

MR. JAMES LOCKYER: If you could give us the -- the -- to the bottom of this page, please.

Thank you. You'll see here that Saurob, in what's really just a matter of days before Gaurov's death, was seen in the walk-in clinic at the Hospital for Sick Children for these spells.

you see where I'm looking?

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: The history states -- and -- and we can probably invent some of the lines -- some of the words that are missing -- the history states that he was playing when he suddenly fell on the ground - - and we don't quite know what -- and was cyanosed.

Apparently the father gave him something, and compressions and mouth to mouth.

And then there's a suggestion there may have been a similar episode last year.

And then if we go to the -- over the page, and there's -- you'll see in the last paragraph: "Difficult to elicit exactly what the problem is. In a consideration of the description of this spell, we feel it's worthwhile to do..." And I'm -- I'm sort of translating, Mr. Commissioner, to some extent. "...a reassessment of the patient after an EEG has been done."

We also -- I can also tell you that Gaurov's father used to be an ambulance attendant back in his home country.

DR. HELEN WHITWELL: Right.

MR. JAMES LOCKYER: And so had familiarity with resuscitation and mouth-to-mouth techniques.

DR. HELEN WHITWELL: Yes.

MR. JAMES LOCKYER: So if we -- and I appreciate this is a dreadful document, but it's all we've got at the moment, and as I say, we're trying to get a better copy of it.

But if we assume for a moment that just days before Gaurov died his one (1) year old brother, Saurob had been through, what could be described as a similar experience to Gaurov, would that suggest that there might be any kind of -- of hereditary problem within family?

DR. HELEN WHITWELL: I don't think I can really answer that. It may or may not. I mean, we -- we just don't know.

This Blogster has no doubt that there is no way - at this point of time - that Professor Whitwell, or anyone else could give a definitive answer to this question.

I am however troubled by the fact that the shocking disclosure appears to have merged for the first time almost two decades after Mr. Kumar pleaded guilty to criminal negligence in connection with Gaurov's death.

This is an important investigative fact which should have been discovered by both the corner and police investigators, relayed to the police, and then disclosed to defence counsel - if at that point of time the prosecution was determined to expose Mr. Kumar to criminal proceedings.

It is crucial to recollect that Mr. Kumar felt pressured to enter a plea to criminal negligence causing Gaurov's death shortly after it was offered by prosecutors in order to avoid the oppressive murder charge - while the family was still deeply in mourning.

His lawyers therefore never got down to the type of investigation which would have revealed this kind of information which may have offered a medical defence which indicated that Gaurov, like so many other infants in Dr. Charles Smith's cases, had died a tragic, but natural death.

Harold Levy...hlevy15@gmail.com;

Part Eight: Gaurov's Father: A Second Shocking Revelation From Goudge Inquiry; Both Smith And Huyer Were "Struggling" With Criminality In the Case;

"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;

Part Seven: Gaurov's Father; Shocking Disclosure At Inquiry: Kumar Not Told By Crowns About Recent Decision Blasting Smith And Sick Kids SCAN Team;

"THIS WAS A MAN WITH NO RECORD -- A NEW IMMIGRANT TO THIS COUNTRY, A WIFE WITH A BRAIN TUMOUR, A JOB. HE WAS A CONTRIBUTING MEMBER OF SOCIETY, AND ALL OF THE SUDDEN AN ATOMIC BOMB GOES OFF IN HIS LIFE -- MURDER 2. YOU HAVE TO TELL HIM BECAUSE THEY ALWAYS ASK, WHAT'S THE PENALTY, AND YOU SAY, LIFE WITH A MINIMUM PENALTY OF TEN (10) YEARS -- TEN (10) YEARS. HE WOULD HAVE GOTTEN OUT OF JAIL HAD HE
GOTTEN TEN (10) YEARS, AND IF THE TRIAL HAD TAKEN TWO (2) YEARS, HE'S JUST BE OUT NOW FOR FOUR (4) YEARS, AND HIS WHOLE LIFE WOULD BE SHATTERED. NOW, I -- I SEE IN THESE NOTES THAT I'VE BEEN GIVEN FOR THE FIRST TIME TODAY, THE MEETING JANUARY 30TH OF 1992, THE WORDS "DAMAGE CONTROL" APPEAR DEALING WITH THE CASE FROM MR. JUSTICE DUNN. I CAN'T MAKE A CONNECTION BETWEEN THAT MEETING AND WHAT HAPPENED IN MY CASE, EXCEPT THAT IT HAPPENED JUST A FEW WEEKS LATER OUT OF THE SAME OFFICE. I'M STILL SHOCKED."

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LAWYER DAVID GORRELL IN RESPONSE TO QUESTIONS POSED IN CROSS-EXAMINATION BY JAMES LOCKYER;

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One of the most shocking revelations from the Goudge Inquiry is Dinesh Kumar's lawyer's evidence that he was not been informed by prosecutors about a disturbing decision from Ontario Court Justice Patrick Dunn in the Amber case.

As we have seen in many previous posts, this decision was was highly critical of the opinions of Dr. Charles Smith and the Hospital for Sick Children SCAN team.

As will be seen towards the end of this post, a lack of access to this decision had dire consequences for Mr. Kumar which he bears to this day.

By was of background information, here is a post I ran on Thursday, January 10, 2008, under the heading "Damage Control And Lost Opportunity: The Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) Unit;"

It describes how the Hospital for Sick Children resorted to "damage control" rather than to dissecting Dunn's decision in order to see what they could learn from it in order to avoid future debacles.

I did not realize the additional significance of the damage control meeting - the presence of a prosecutor - until I was later exposed to Gaurov's case at the inquiry.

Here is the earlier post as published:

""C.S. FEELS HE WAS MISUNDERSTOOD."

FROM HOSPITAL FOR SICK CHILDREN DAMAGE CONTROL DOCUMENT;

One would like to think of the Hospital For Sick Children as an institution that wants to learn from its mistakes.

This would especially apply to the serious medical errors made by Dr. Charles Smith and the hospital's Suspected Child Abuse and Neglect (SCAN) Unit that led to a 12-year old girl Timmins, Ontario girl being wrongfully charged with manslaughter.

However, a document has emerged at the Goudge inquiry which shows that the SCAN team reacted to Ontario Court Judge Judge Patrick Dunn's scathing criticisms of its work by holding a "damage control" meeting at which Smith defended his work, and Dunn was branded as "strange" and "from the bottom of the heap"

The handwritten document does not evidence any concern on the part of Smith or the members of the SCAN team that Judge Dunn's rejection of the hospital's opinion that baby Amber was a victim of "shaken-baby syndrome," as opposed to a fall down the stairs, may have been well-founded.

Nor does it evidence any desire to figure out what went wrong so that the risk of future wrongful prosecutions can be minimized.

Instead, after noting that the meeting was attended by the members of the SCAN team and several prosecutors, it goes on to describe Dunn as "strange" a member of the "family court" and "not used to criminal standards."

It goes on to express a concern that, "the judgment is likely to be passed around and (symbol for "therefore") damage control)";

(In retrospect, this prediction was right on the mark as Dunn's carefully structured judgement is resonating today at the core of the Goudge inquiry as one of the first alarm bells to sound over Smith's competence.)

But is is evident that the "damage control" ultimately failed as the hospital's failure to accept its responsibility and do something to remedy its mistakes is now available on the public record for all to see.

One of the most disturbing suggestions in the document is the comment that there is "no precedential value re medical evidence. Family court judge at bottom of heap. Error may be brought up in another case."

The reality is that if Dunn's criticisms - as set out in a beautifully structured decision - had been heeded back in 1991, so many other individuals would have been spared the torment of being wrongfully accused of killing their beloved children.

Instead, the consensus of the meeting appears to be that it is, "acceptable to say we disagree with judge's judgment."

The notes indicated that Smith defended his opinion in the case on the basis that "our standard is higher than theirs" - (an apparent reference to the large number of U.S. experts called by the defence) - "but still has to be held up to a higher standard."

He also attempts to deflect criticism from himself by saying that the case involved an "outside opinion" and that he "relied on police photos."

"C.S. feels he was misunderstood," the anonymous minute-taker wrote.

This is typical of Dr. Charles Randal Smith.

Evidence called at the Inquiry indicates that even his defenders at the highest levels of the Chief Coroner's Office observed toward the end of his career at the hospital that he was incapable of accepting responsibility for his actions and tended to blame others for his own mistakes.

During his questioning yesterday of Dr. Dirk Huyer, former head of the SCAN team and Dr. Katy Driver, who played a prominent role for that team in Amber's case, lawyer Louis Sokolov, who represents the Association in Defence of the Wrongly Convicted, (AIDWYC) suggested that the Hospital's damage control meeting represented, "a lost opportunity."

He sure got that right.

(See previous posting: "A glimmer of understanding: Part Three; A dangerous mix; Dr. Charles Smith and the Hospital For Sick Children SCAN team.)

Posted by Harold levy at Thursday, January 10, 2008;"

Goudge Inquiry Counsel Mark Sandler twigged to the fact that the prosecutor who was present at the damage control meeting played an active role in the Kumar investigation - just several weeks later;

Here is Sandler's examination of David Gorrell, Kumar's lawyer, on this connection:

(Bear with me: I prefer to give full stretched of evidence rather than to risk inadvertently distorting the substance through editing);

CONTINUED BY MR. MARK SANDLER:

MR. MARK SANDLER: Thank you. Mr. Gorrell, we know from the materials that have been filed here that -- that Gaurov died in Toronto on March the 20th, 1992, at the age of five (5) weeks. Due to suspicions about his death, his older brother was apprehended by CAS on that same date. We also know that on June the 16th of 1992, the report of post-mortem examination prepared by Dr. Smith was issued. I'm going to take you to the overview report if I may, which is at Tab 1 of your materials. And if you'd go to PFP143828, at paragraph 59, and you'll
see paragraph 59 is at page 32 of the overview report.

MR. DAVID GORRELL: Thank you.

MR. MARK SANDLER: And you'll see that on June the 26th of 1992, there was a meeting involving Dr. Smith, Constable Line, Detective Rolf Prisor, and -- Prisor, and Crown counsel, Mary Hall and Sandra Kingston. Just stopping there for a -- for a moment. First of all, what was Ms. Hall's position back in June
of 1992, as you understand it?

MR. DAVID GORRELL: I believe she was the -- either a Bureau Chief, or a Crown attorney, an independent Crown attorney. I'm not sure if Scarborough had been hived off yet, and made into a -- a jurisdiction for a separate Crown. But she was the head person. (Blogster's Note: Prosecutor Hall did not testify at the Inquiry. Her side of the story is not represented in this post.)

MR. MARK SANDLER: And were you aware of what, if any, role she played in the Gaurov case?

MR. DAVID GORRELL: Well, she would obviously supervise. She did participate in the -- in a judicial pretrial that we had on October 22nd of 1992, but that was simply because the assigned Crown, I believe, was not available.

MR. MARK SANDLER: And that was Ms. Koehl?

MR. DAVID GORRELL: Ms. Koehl, yes.

MR. MARK SANDLER: And you see from the overview report that that meeting involving the police and Crown counsel and Dr. Smith took place on June the 26th, and the overview report reflects that, according to a police report, Dr. Smith confirmed his diagnosis of Shaken Baby Syndrome, and added that the injuries probably resulted from continuous shaking as opposed to a single violent shake. We also know, Mr. Gorrell, that on June the 29th of 1992, Gaurov's father was arrested for second degree murder, some three (3) days later.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And the bail hearing took place on July the 10th -

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: -- and were you involved in the bail hearing?

MR. DAVID GORRELL: I became involved on July 2nd. The case first went to Dhamen Kissoon -- K-I- S-S-O-O-N, who had gone to the bar in 1989, and he retained me to lead on the defence. And I became involved on June 30th. And we worked on preparing the necessary affidavits and so on for the bail hearing from June 30th on.


MR. MARK SANDLER: All right.

MR. DAVID GORRELL: Until July 10th.

MR. MARK SANDLER: And we know from the materials that have been filed that the Crown consented to the release of your client on bail, pending trial. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And I want to ask you about a conversation that your dockets reflect took place with Rita Koehl on the same date of the bail hearing, June -- July the 10th.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Tell us what transpired.

MR. DAVID GORRELL: This is a -- a case that's sixteen (16) years ago, and therefore, I'm relying heavily on the notes that were found in Mr. Kissoon's file. My own file isn't -- is no longer available. According to the dockets and the notes that I have here, on the day of the bail hearing, Ms.
Koehl, with Sergeant Prisor, I think, present, discussed with me the possibility of a resolution by way of plea to something possibly for no time.

MR. MARK SANDLER: All right. And how did you react to the fact that on a murder case, the Crown had initiated a discussion with you that involved a
potential plea for -- for no time?

MR. DAVID GORRELL: I was surprised.

MR. MARK SANDLER: And did you have any explana -- or was any explanation given to you as to why the Crown was taking that position as -- that early and at that stage in the proceedings?

MR. DAVID GORRELL: Not that I recall, and I would not have asked. You don't look a gift horse in the mouth.

MR. MARK SANDLER: All right. And similarly, I see that, as you've indicated, there was a consent to your client's release on bail, pending trial.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Was that in your experience usual for a murder case?

MR. DAVID GORRELL: John would be better to ask. I haven't done nearly as many as he has, but you can get consent releases on murders, and I think this would have been a case where you could have.

MR. MARK SANDLER: All right. Now, just seeing what, if anything, we can figure out about -- about why the Crown was motivated to proceed in the way it did. I want to ask you about something that you may or may not know about, and that is, we've heard some evidence here, Mr. Gorrell, that on January -- in January of 1992, that same year -- a conference -- a case conference was conducted at the Hospital for Sick Children in connection with the Amber case, and it arose out of the comments that Justice Dunn had made about the Hospital for Sick Children witnesses, including Dr. Smith, at -- at that trial, and we also know that in January of 1992, Ms. Hall and Ms. Kingston participated in that conference.
Two (2) questions arising out of that. Did either Ms. Hall or Ms. Kingston, or anyone else from the Crown's office have any discussions with you about the Amber case and its impact upon the Gaurov case?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: Were you aware that -- that the Crowns, including Ms. Hall, had participated in a case conference in connection with the Amber case before the Gaurov case had taken place?

MR. DAVID GORRELL: No.

MR. MARK SANDLER: All right.

MR. DAVID GORRELL: All right, let me rephrase that. I know that they met again, I think, on June the 26th about this case, about the -- the Gaurov case, but I was unaware of this meeting. I have the notes in front of me here. I've seen them today for the first time. I was unaware of this meeting on January 30th, 1992.

MR. MARK SANDLER: All right. And you've made reference to -- to the meeting that took place here and -- and I've made reference to the Crown, so just taking you to page 32, paragraph 59, that's the reference that I took you to a little bit earlier of the meeting that took place involving Dr. Smith, the police, Ms. Hall, and Ms. Kingston. Am I right?

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: And were you aware that -- that that conference had taken place prior to the laying of the charges?

MR. DAVID GORRELL: I don't think so. It's been a long time ago, but I don't think I was aware of that meeting, and I don't think I had the police notes of it. I do have the original disclosure here from 1992, and the summary that is -- is available in these materials is not in that disclosure.

MR. MARK SANDLER: Okay, and leaving aside your awareness of the June 26th, 1992 meeting, you earlier indicated that you were the one that actually
gave Mr. Struthers a copy of the Amber decision, and this would be sometime later on.

MR. DAVID GORRELL: Yes.

MR. MARK SANDLER: Were you even aware of the Amber decision back in June of 1992 or during the currency of your involvement in the Gaurov file?

MR. DAVID GORRELL: No, I was not.

MR. MARK SANDLER: Was it something that you would have been like -- that you would have liked to have been aware of?

MR. DAVID GORRELL: Oh, yes;"

As the following transcript indicates, lawyer James Lockyer, who represents William Mullins-Johnson, Sherry Sherret-Robinson and at least seven unnamed persons at the Inquiry, was quick to zoom into this connection in his cross-examination of Gorrell;

MR. DAVID GORRELL: This was a man with no record -- a new immigrant to this country, a wife with a brain tumour, a job," Gorrell told Lockyer;

"He was a contributing member of society, and all of the sudden an atomic bomb goes off in his life -- murder 2. You have to tell him because they always ask, What's the penalty, and you say, Life with a minimum penalty of ten (10) years -- ten (10) years. He would have gotten out of jail had he gotten ten (10) years, and if the trial had taken two (2) years, he's just be out now for four (4) years, and his
whole life would be shattered. Now, I -- I see in these notes that I've been given for the first time today, the meeting January 30th of 1992, the words "damage control" appear dealing with the case from Mr. Justice Dunn. I can't make a connection between that meeting and what happened in my case, except that it
happened just a few weeks later out of the same office. I'm still shocked.

MR. JAMES LOCKYER: The same Crown, as a matter of fact --

MR. DAVID GORRELL: Well, no, -- well, no, Ms. Koehl wasn't on this case, but Mary --

MR. JAMES LOCKYER: Mary Hall --

MR. DAVID GORRELL: Mary Hall, the same Crown attorney.

MR. JAMES LOCKYER: -- was the common denominator to your case and their case, is that right?

MR. DAVID GORRELL: Yes, and the Scarborough courthouse --

MR. JAMES LOCKYER: Mm-hm.

MR. DAVID GORRELL: -- and Charles Smith, Of course. But --

MR. JAMES LOCKYER: I think Mary Hall was actually the Crown when you did the pretrial in October--

MR. DAVID GORRELL: Yes, she did.

MR. JAMES LOCKYER: -- on the Gaurov case, is that right?

MR. DAVID GORRELL: She was there. I think Ms. Koehl was unavailable for some reason, but...

MR. JAMES LOCKYER: Yes. And I -- as I recall, Mr. Koehl also said that any plea arrangement would be subject to the approval of Ms. Hall.

MR. DAVID GORRELL: That I don't remember, but I -- I wouldn't be surprised in any case.

MR. JAMES LOCKYER: It's in one (1) of the documents in the file you arrived with today.

MR. DAVID GORRELL: Really?

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: Fine, then I accept
that.
MR. JOHN STRUTHERS: It was the practice
at the time.

MR. JAMES LOCKYER: Yes.

MR. DAVID GORRELL: But the -- just -- just to continue with this, what -- I said, my heart went out to Gaurov's father. I don't know how I'd -- I'd act in this situation if I had someone like Mr. Struthers saying, Well, you can get ninety (90) days on weekends. After emission, that's sixty (60) days. That's a maximum of fifteen (15) weekends. The Mimico is jammed, so you'll wind up doing only three (3), or four (4), or five (5). You can do that, or you can sit in the courtroom and be judged by everybody with a risk, with Charles Smith up there with a mantle of Sick Kids on his shoulder. You can go to jail. You can go to jail on a
manslaughter. I really didn't think a murder was in the cards, but you can go to jail on a manslaughter. What decision would I make? I'm pretty sure I'd make the
decision he made even if I were not guilty. But as his lawyer, I'm the only person in the whole scenario that Doesn't judge him. The police judge him when they charge him. The Crown judges him when they prosecute him. The Judge judges him, the jury judges him, the press judges him. When he says, I want to plead guilty, and
I will sign on the dotted line, and I did it, I'm not going to tell him, No, sir, you're going to face the trial and if you get eight (8) years, that's for the
greater good of the justice. I took his instructions and I -- I would not be at all surprised, with the stress that man was under at the time, if he was doing it out of expediency.

MR. JAMES LOCKYER: And the instructions that you received from him by way of the form that you prepared, obviously the way it's typed up, it was -- the words were your words in that document, is that fair?

MR. DAVID GORRELL: Yes, they were my words.

MR. JAMES LOCKYER: And they were words designed to fit the notion of criminal negligence. Reckless is hardly a word an east Indian that doesn't
speak English is going to come up with.

MR. DAVID GORRELL: No, the -- this -- these were my words.

MR. JAMES LOCKYER: Yes. And, as Mr. Struthers was just saying, it was more a document for your protection than a document to assist Gaurov's
father, is that fair?

MR. DAVID GORRELL: I think that's probably fair. It's also a document that you would use to fix his mind as to what he's doing, so that he can't
come back and -- I guess to protect counsel, that's right. I(t) was thirteen (13) pages;"

Dear readers:

Imagine how the prosecutors must have felt to learn about Justice Dunn's troubling criticisms of the work performed by Dr. Charles Smith and the Hospital for Sick Children SCAN-TEAM in the then recent Amber case;

Would that not have raised serious questions as to whether or not there was a reasonable possibility of obtaining a conviction in the case?

At the very least, shouldn't the existence of the decision - which was not likely publicly available at that time - have been made to the defence lawyers?

At least, that way they could assess the strength of the Crown's case before putting the plea to criminal negligence causing his son Gaurov's death to his client whether or not the law relating to disclosure at the time required them to do so?

As a criminal lawyer, I suspect that after reading the Dunn decision I would have been in a position to more confidently advise the client to contest the murder charge - instead of having to go through the contortions involved in a criminal negligence plea where I would have so much doubt about my client's guilt?

Just imagine how much pain this mourning family would have been spared - let alone the need to bear the load of sixteen years of stigma in their tiny community - and having to fight for ultimate exoneration after sixteen years in the Ontario Court of Appeal;

Next: Part Seven; Gaurov's father: Another shocking revelation;

Harold Levy: hlevy15@gmail.com;

Part One: Dr. Cutz's Recommendations To Goudge Inquiry; Remove Ontario Forensic Pediatric Pathology Unit From Sick Kids;

"IN SUMMARY, IT IS MY VIEW THAT THE DIVISION OF PATHOLOGY AT THE HOSPITAL, AND OTHER PEDIATRIC PATHOLOGY SERVICES AT OTHER LARGE ACADEMIC CENTERS, ARE BEST SUITED TO PROVIDE HIGH QUALITY PEDIATRIC PATHOLOGY SERVICES FOCUSING ON ACADEMIC ASPECTS THAT INCLUDE THE DIAGNOSIS AND INVESTIGATION OF PEDIATRIC DISEASES.

HOWEVER, TO ENSURE THAT INFANTS AND CHILDREN ARE PROTECTED FROM HARM AND ABUSE, THE REMAINING TEN PER CENT OF CASES THAT INCLUDE CLEAR HOMICIDES OR CRIMINALLY SUSPICIOUS DEATHS ARE BEST HANDLED BY QUALIFIED FORENSIC PATHOLOGISTS WHOSE TRAINING AND EXPERIENCE LIES PRIMARILY IN THE EXAMINATION OF VIOLENT DEATH, HOMICIDES AND SUCH.

THE BEST SETTING TO PERFORM THESE AUTOPSIES (WHICH TOTAL APPROXIMATELY 10-15 CASES PER YEAR) IS AT THE CHIEF CORONER'S OFFICE WHICH HAS THE QUALIFIED STAFF AND REQUIRED FACILITIES TO CONDUCT THE NECESSARY INVESTIGATIONS."

DR. ERNEST CUTZ: RECOMMENDATIONS TO GOUDGE INQUIRY;

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

Dr. Ernest Cutz, a distinguished pathologist at the Hospital for Sick Children in Toronto, has drafted his personal recommendations for the Goudge Inquiry, which have been posted on the Inquiry's Web-site.

Dr. Cutz's views are well worth considering because he has been at the Hospital for several decades and is steeped in all aspects of the Pathology Department -including the Ontario Forensic Pediatric Pathology Unit.

This Blog is therefore publishing Dr. Cutz's submissions - beginning with his recommendation that the hospital should cease performing forensic autopsies - and focus, rather, on what he calls, "medical/natural death cases."

"I have reviewed the “List of Systemic Issues” currently available on the website of the Inquiry into Pediatric Forensic Pathology in Ontario," this portion of Dr. Cutz's submissions begins.

"The following document reflects my own personal views and comments on select questions posed in that list" it continues;

"My comments reflect over 35 years of experience in Pediatric Pathology, including pediatric forensic pathology.

I. Institutional Considerations: Should Ontario have an institutional setting dedicated to pediatric forensic pathology, or should pediatric services be delivered within a forensic pathology institutional setting?

In essence, it is my view that the pediatric pathology work performed in Ontario should not be all be performed by the same institution.

Rather, pediatric autopsy work should be divided between the Hospital for Sick Children (the Hospital) and the Office of the Chief Coroner of Ontario. (The Chief Coroner's Office);

I say this for the following reasons:

a) Approximately 90 per cent of pediatric cases investigated under the Coroner’s Warrant result from death due to natural causes or pediatric disease.

These cases are thus not “forensic” by nature.

It is appropriate that pediatric pathologists from the Hospital for Sick Children perform the autopsies in these cases.

It is my view, however, that the Hospital should only perform autopsies on these “medical/natural death cases”.

Therefore, there would no longer be a need for a Pediatric Forensic Pathology Unit (the Unit) at the Hospital;

Furthermore, it is my view that there is an incompatibility between the principal mission of the Hospital as being dedicated to academic pursuits and research and the Chief Coroner's Office which excludes research;

I believe that the institutional link between the Hospital and the Chief Coroner's Office should be discontinued.

b) In summary, it is my view that the Division of Pathology at the Hospital, and other Pediatric Pathology services at other large academic centers, are best suited to provide high quality pediatric pathology services focusing on academic aspects that include the diagnosis and investigation of pediatric diseases.

c) However, to ensure that infants and children are protected from harm and abuse, the remaining ten per cent of cases that include clear homicides or criminally suspicious deaths are best handled by qualified forensic pathologists whose training and experience lies primarily in the examination of violent death, homicides and such.

The best setting to perform these autopsies (which total approximately 10-15 cases per year) is at the Chief Coroner's Office which has the qualified staff and required facilities to conduct the necessary investigations.

d) In terms of the pediatric disease cases, the best protection against wrongful accusations in pediatric cases is the provision of a correct diagnosis of natural disease based on a solid scientific foundation.

The diagnosis of pediatric disease in the 21st century is based on sophisticated methods of cellular and molecular biology (i.e. testing for genetic or metabolic disorders).

This testing requires special expertise and facilities, all of which are available at the Hospital, but are not available at the Chief Coroner's Office;

e) Since research and education into pediatric disease is outside the mandate of the Chief Coroner's Office, the responsibility and the provision of resources for this essentially patient-related activity should be assumed by the Ministry of Health and Long term Care.

10. What is the most cost efficient way of delivering quality pediatric forensic pathology services? For example, what are the advantages and disadvantages of using staff doctors or fee-for-service doctors?

a) Staff Pathologists based at leading Pediatric Academic Institutions, such as the Hospital for Sick Children can deliver the most cost-efficient and highest quality pediatric pathology services.

All staff are qualified and experienced Pediatric Pathologists who are also cross-appointed to the University of Toronto and thus participate fully in research and educational activities.

b) The combination of high-level diagnostic skills in diagnosing pediatric disease, research into disease pathogenesis, and education ensures that the work of these pathologists is high quality and also serves to educate the next generation of pediatric pathologists, thereby addressing the shortage of professionals in this specialty."

This Blogster has addressed the issue as to whether the Ontario Forensic Pediatric Pathology Unit should remain at the Hospital for Sick Children in an earlier post entitled, "Up-Date: Expert Evidence; Part Three: Research Questions Whether Forensic Unit Once Headed By Smith Should Remain At Sick Kids," published on March 8, 2008;

For the benefit of those readers who have not read it, that post ran as follows:

"IN ADDITION TO AN ABSENCE OF MEANINGFUL OVERSIGHT, THE INTEGRATION OF THE (UNIT) WITHIN THE PEDIATRIC PATHOLOGY UNIT AT THE HOSPITAL FOR SICK CHILDREN(INCLUDING INTERACTION WITH THE SUSPECTED CHILD ABUSE AND NEGLECT (SCAN) TEAM) MAY HAVE CREATED A PARTICULAR KIND OF INSTITUTIONAL CULTURE THAT CONTRIBUTED TO THE “THINK DIRTY” ETHOS, DISCUSSED IN OTHER RESEARCH CONDUCTED FOR THIS INQUIRY,"

PROFESSOR LORNE SOSSIN IN RESEARCH PAPER PREPARED FOR THE GOUDGE INQUIRY;

Ontario's Pediatric Forensic Pathology Unit, once headed by Dr. Charles Smith, risks being tainted by its proximity to the Hospital for Sick Children's Sick Children's Suspected Child Abuse and Neglect (SCAN) team, a researcher suggests.

University of Toronto law professor Lorne Sossin, recommends that Ontario should rethink retention of the Unit at the (Hospital) in a paper commissioned by the Goudge Inquiry entitled, "oversight and accountability." (The paper is posted on the Inquiry's Web-site;)

"In addition to an absence of meaningful oversight, the integration of the (Unit) within the pediatric pathology unit at the Hospital for Sick Children(including interaction with the Suspected Child Abuse and Neglect (SCAN) team) may have created a particular kind of institutional culture that contributed to the “think dirty” ethos, discussed in other research conducted for this Inquiry," writes Sossin;

"While there may have been good reasons to establish the (Unit) and locate it in (the Hospital) the viability and desirability of this arrangement continuing should be the subject of further study."

This Bloggist focused this issue in a previous posting entitled "A glimpse of understanding: Part Three; A dangerous mix: Dr Charles Smith and the Hospital for Sick Children SCAN team." (Jan, 2, 2008;"

"In two recent recent postings I have linked Dr. Charles Smith's ability to have such a disastrous effect on Ontario's criminal justice system directly to the decision to appoint him to head the new Ontario Forensic Pediatric Pathology Unit which would be located at the Hospital for Sick Children in Ontario. (A glimmer of understanding; Parts One and Two);" the Blog began.

"One of the unfortunate by-products of this decision is that Smith would have increased influence with the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) Program," it continued.

"Smith, as director of the new prestigious new unit, and the hospital's SCAN unit would prove to be a dangerous mix.

Hospital literature described the SCAN Program as "a hospital-based, multidisciplinary team that offers care, support, and assessment to children and adolescents who may have been abused."

However, as a criminal lawyer, and Editor of the Criminal Lawyers Association Newsletter, In the 1980's I began hearing stories which indicated that the team had a propensity for turning tragic but innocent situations into criminal assaults.

In 1985, I learned about a case which confirmed my worse fears about the program - and wrote bout the case in the Toronto Star, under a headline that read: "They were caring parents, not child abusers"

"Sometimes, people acting with the best of intentions end up achieving the worst possible result," the story began.

"Such was the case in a recent dispute involving a northern Ontario couple and the Catholic Children's Aid Society of Metro Toronto.

The couple were plunged into a nightmare in which they were branded as child abusers of their then one-year-old son and had both of their children taken from them.

In fact, as later became clear when the case landed in court, their son, Tyler,
suffered from a rare bone disease and hadn't been abused at all.

After it became evident that Tyler wasn't developing properly and x-rays had revealed some bone lesions, his parents, whose identity cannot be published, asked their family physician in Elliot Lake to refer the child to Toronto's Hospital for Sick Children for examination by specialists.

But they returned home disappointed, early in January, 1985, as the hospital was unable to pinpoint the disease.

They were unaware that the head of the radiology department had concluded
that the x-rays "were suggestive of child abuse."

They were also unaware that a hospital child abuse team had met in their absence and had asked the medical staff to have the couple return to the hospital with both of their children.

On their arrival, officials of the Metro Children's Aid Society were waiting to "apprehend" both children under a law that permits children at "substantial risk" to be taken from their parents, pending a court hearing.

Bewildered, they returned alone to Elliot Lake to discover that their nightmare had only just begun.

The radiologist's diagnosis that the x-rays were "suggestive" of child abuse had mushroomed into the conclusion by a member of the abuse team that there was "a clear possibility of child abuse."

And the Metro Catholic Children's Aid Society, which had taken over the case, was planning to place Tyler in a foster home and the other child with his natural father.

This move was blocked following the intervention of a lawyer and a private social worker retained by the parents. That led to the children's placement with grandparents.

But the parents couldn't persuade the society to take further steps to find out what was wrong with Tyler, even though a renowned bone disease expert in California had concluded, after viewing the x-rays from the Hospital for Sick Children, that the
lesions were more consistent with bone disease than with fracture.

The expert had suggested to the hospital that certain tests should be carried out, but the hospital declined to perform these particular tests.

The parents were then forced to go to court on April, 22, 1986, to free Tyler so that he could be taken to California, partially at their own expense, and with the help of OHIP, for testing and diagnosis.

After a four-day hearing contested by the society, Family Court Judge Peter Nasmith granted the parents' application and made the decision that led to the proof that Tyler was a sick child, not an abused one, and that the parents were caring human
beings and not child abusers.

The California doctor confirmed his original diagnosis, and after doctors at an Ottawa hospital provided additional confirmation, the society finally withdrew the application to make the boy a crown ward.

What went wrong?

The key is provided by Judge Nasmith's comments at the hearing, where he took the unusual step of telling the society to pay costs to the parents for the legal proceedings.

Having concluded that, "the medical evidence was inconclusive and any evidence of possible abuse was of a very unreliable nature," and noting the difficulties the society faced because of the number of agencies involved and the fact that it was
"obviously influenced (perhaps controlled) by the child abuse team at the Hospital for Sick Children," the judge said: "The fact remains that there was embarrassingly little effort to follow up on what had become a devastating allegation . . . I
think the position (the society) took was unreasonable and even arbitrary."

As to the heart of the problem, Judge Nasmith said: "No doubt the real fly in the ointment here is the child abuse team at the Hospital for Sick Children as they moved from a position of possible abuse to a diagnosis of abuse. This was a surprising stance for them to take, and I think it underlines the need for
a protection agency receiving reports under (child) protection legislation and for courts in these cases to continue to scrutinize the zeal of the well-meaning people who are so understandably devoted to fighting the scourge that is child abuse. This zeal has created a subtle dynamic that can somehow convert a suspicion of child abuse into a presumption of child abuse."

One can sympathize with children's aid societies because of the heavy pressures they face and their dilemma when confronted by complex medical information provided by experts.

But Nasmith's ruling spells out the high standards to be expected of them, and of the experts involved in the medical and social investigation of child abuse, because of the awesome legal and persuasive powers that they possess.

If Tyler's parents hadn't had sufficient commitment and ability - and the support of OHIP, the Ontario Legal Aid Plan, and a dedicated lawyer - what would the situation be now? Sound familiar?

The dangerous mix between Dr. Charles Smith and the Hospital for Sick Children SCAN team was all too apparent in a case before the Inquiry which I have been referring to as "the Timmin's case" in previous postings.

The case is the subject of a court decision released by Provincial Court Judge Patrick Dunn on July 25, 1991, the year the Ontario Forensic Pediatric Pathology Unit was formed and several years after the Nasmith decision. (Dr. Smith had been at the hospital since 1981);

As Dunn noted: "I am not the only person who believed (the babysitter). The Community believed her too until the Crown's shaking theory surfaced. When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts (Dr. Smith and the Hospital for Sick Children SCAN team) it is riddled with reasonable doubts."Why would the babysitter shake Amber to death?

"Dr. Smith suggested by way of provocation that perhaps Amber was a "bear", like his son, when she woke up," Dunn wrote in his powerful 24-page judgment which resonates to this very day.

"In other words, that the child would be provocative by her irritable manner. This is not true on the facts and it was unfair to suggest the possibility because there was no basis for it."

(Dunn also ruled that, "I cannot find that (The Hospital for Sick Children) properly considered the relationship between the Babysitter and Amber or Amber's gentle and non-provocative disposition," as he blasted both Smith and the SCAN team for failing to obtain "a complete and accurate psycho-social history" - even though they new "the importance" of having it.")

I don't propose to dwell on the details case as I have previously addressed it in several postings on this Blog.

Suffice it to point out for now that Dunn expressed, "serious concerns about the manner in which certain physicians at the Hospital for Sick Children ... formulated their diagnosis." (Dunn stressed that wherever the evidence of the SCAN team members clashed with the defence witnesses, "I prefer to accept the evidence of the defence experts."

Dunn stressed that there were flaws in the Hospital for Sick Children approach - "and hence their opinion about shaking should not be given great weight.

"I am not talking now about whether shaking exists or whether it or some other mechanism killed Amber," he explained."

"I mean that the fact gathering process, the communication procedures, and the documentation of the Hospital for Sick Children doctors, involved in this case are such that I am led to question the conclusion they drew, based on the facts as these erstwhile and well-meaning doctors understood them."

Similar comments were made about Dr. Charles Smith's work by the independent reviewers who studied so many of his cases.

A very dangerous mix indeed."

Sossin makes a compelling argument for removing the Unit from the Hospital - which in this Blogster's view has not demonstrated over many years that it deserves the public trust.

This is yet another tough bullet for Commissioner Goudge to bite."

Harold Levy...hlevy15@gmail.com;

Part Ten: Closing Submissions; Affected Families: Crossing The Line: From Coroner's Investigator To Police Agent;

The current focus is 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 the section in which the Group alleges that Dr. Smith - and others involved in death investigations for the Chief Coroner's Office - crossed the line from impartial death investigator to active participant in a police investigation;

"With the assumption of an advocacy role, there is a danger that medical professionals will “cross the line” into participating in the police investigation," this section begins;

"Dr. Smith admitted that in the early years he considered himself to be supporting the Crown and that in later years he understood the concept of impartiality but was poor in the execution," it continues;

"But it was not just Dr. Smith who fell into this line of thinking.

In the Tyrell case, the Court considered the admissibility of statements made by Tyrell’s caregiver to Dr. Mian and Elaine McLaughlin of the SCAN team.

The trial judge clearly found that they were “persons in authority” and was scathing in his remarks on this point:

"I would reject the statement because of the dramatically unsatisfactory nature of the SCAN (Suspected Child Abuse and Neglect) team evidence, which makes it impossible to know with any degree of certainty what [Tyrell’s caregiver] was told about the purpose of the interview and equally impossible to know what was in fact the real purpose of the interview and also the dramatic and startling contradiction between Dr. Mian and Ms. MacLachlan about the so-called protocol averred by Ms. MacLachlan and also because of the apparent lack of any protocol of system or set of standard procedures or organizational guidelines to ensure that the role of the SCAN team is clear and fairly brought home, not only to interviewees, but also that the very members of the SCAN team itself have some consistent understanding of what its true purpose and function is."

Dr. Dirk Huyer candidly advised the Commission that when reflecting on this possibility of assuming an inappropriate investigatory role in a case, he recognized that “theoretically people would be more willing to tell me that because I’m a physician and I’m in a helping environment.”

In the Tiffani case, police investigators arranged a joint interview of the parents with the investigating coroner present, meeting to “discuss the method of the interview” in advance.

According to the notes of the investigating officer, the discussion was as follows:
Coroner will ask medical background of mother in form used for medical history…will mention interview is taped and get consent….

If at any time interview shows criminality, Coroner will stop… Officer will [issue?] caution and continue interview. Same procedure to follow with husband.

Reference to Dr. Smith’s stature was used as an investigative tool by the police during the interrogation of Nicholas’ mother:

you have to understand that there people, they’re professional who, the pathologist, the head pathologist for Ontario – I mean, this is a man who’s not making idle speculation. This is a man who knows and who has empowered that knowledge to us that his death was not natural. That’s the reality of it.

The evidence suggests that the Ontario Chief Coroner's Office saw itself as “a resource to the system”, meaning the prosecution side of the criminal justice system.

Nowhere is this more evident that in the Barrie case referred to in the course of this Inquiry.

The Affidavit of Staff Sergeant Mark Holden, sworn January 28, 2008, raises significant concerns as set out below:

There were two case conferences with police prior to Dr. Smith meeting with the mother;

"There was communication between Inspector McNeill and Dr. Smith about the fact the house was wire-tapped;
There was a meeting between Inspector McNeill and Dr. Smith immediately before the meeting; and
Dr. Smith immediately reported back to Inspector McNeill, describing the mother’s demeanour as follows: “it was like talking to her about a load of gravel”.

A February 7, 2008 affidavit sworn by Dr. Cairns confirms that he was aware that Dr. Smith’s meeting with the mother was going to be wiretapped and that he didn’t see a problem with it at the time although he does now)."

Harold Levy...hlevy15@gmail.com;

Part Eight: Closing Submissions: Affected Families Group; Default Diagnosis; Assuming Sexual Abuse;

AS DR. MILROY STATED IN HIS EVIDENCE, SOME OF THE PEOPLE WHO DO CLINICAL CHILD PROTECTION WORK “SEE THEMSELVES AS ADVOCATES FOR THE CHILD”.

USING THE TERMINOLOGY OFFERED TO THE INQUIRY BY DR. POLLANEN, THE ADVOCACY ROLE IN THIS CONTEXT APPEARS TO HAVE RESULTED IN A “DEFAULT DIAGNOSIS” OF CHILD ABUSE.

-------------------------------------------------------------------------------------
FROM CLOSING SUBMISSIONS: AFFECTED FAMILIES GROUP;
-------------------------------------------------------------------------------------

This Blog is currently looking at the closing written submissions filed by various parties appearing at the Goudge Inquiry which is expected to report on September 30, 2008.

The current focus is 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 the Group's allegation that Dr. Smith, backed by the Chief Coroner's office, assumed sexual abuse by default in several of the cases being reviewed by the Inquiry;

"Dr. Cairns came to the job of Deputy Chief Coroner in 1991 after presiding over a controversial inquest regarding suspected child abuse," the section begins;

"Addressing this issue became a central feature in his professional work with the Chief Coroner's Office over the next decade," it continues.

"From the perspective of the Chief Coroner's Office, of particular concern to Dr. Cairns were those cases where the Children’s Aid Society had been involved in monitoring families prior to a child’s death:

"…the focus of the joint mortality task force was, what was happening to children when they were being monitored by a Children’s Aid Society. So the focus when we brought all these extra cases was we felt we needed to have a much closer scrutiny of the role that Children’s Aid Societies were playing in deaths of these children. Between 1996 and 1998 we did six systemic inquests all addressing children who had died while they were being supervised by a Children’s Aid Society.

In this work, Dr. Cairns found a ready and willing partner in Dr. Smith, who already worked closely with the SCAN team at the Hospital for Sick Children.

Dr. Cairns became a friend and supporter of Dr. Smith and defended him in the media;

As Dr. Milroy stated in his evidence, some of the people who do clinical child protection work “see themselves as advocates for the child”.

Using the terminology offered to the Inquiry by Dr. Pollanen, the advocacy role in this context appears to have resulted in a “default diagnosis” of child abuse.

Indeed, in the Kassandra case, Dr. Marcella Mian stated to the police that “all she deals with is child abuse, so naturally she would assume abuse.”

The default diagnosis in many of the cases that are before this Inquiry came to be expressed by Dr. Smith in the following terms:

Valin: “in the absence of a reasonable explanation by history, they indicate non-accidental trauma including sexual abuse”

Nicholas: “in the absence of a credible explanation, in my opinion, the post-mortem findings are regarded as resulting from non-accidental injury”

Tiffani: “…of note are the presence of bilateral healing rib fractures which, in the absence of a reasonable explanation, are considered to be non-accidental in nature.”

Amber: “…look for evidence which might prove the babysitter to be innocent”

Dr. Cairns did not appear to understand the dangers of such logic.

His explanation for the opinion in Nicholas was as follows: “Commissioner I think he was making that reasoning in that there was no satisfactory explanation given as to how it may be accidental”.

Yet that form of reasoning has no basis in science.

As Dr. Pollanen explained:

We don’t say ‘in the absence of evidence to the contrary this is cancer.’

What we say is, ‘the findings of the histology are not sufficient to come to a diagnosis; re-biopsy."

Do more investigations to find out."

Harold Levy...hlevy15@gmail.com;

Up-Date: Expert Evidence; Part Three: Research Questions Whether Forensic Unit Once Headed By Smith Should Remain At Sick Kids;

"IN ADDITION TO AN ABSENCE OF MEANINGFUL OVERSIGHT, THE INTEGRATION OF THE (UNIT) WITHIN THE PEDIATRIC PATHOLOGY UNIT AT THE HOSPITAL FOR SICK CHILDREN(INCLUDING INTERACTION WITH THE SUSPECTED CHILD ABUSE AND NEGLECT (SCAN) TEAM) MAY HAVE CREATED A PARTICULAR KIND OF INSTITUTIONAL CULTURE THAT CONTRIBUTED TO THE “THINK DIRTY” ETHOS, DISCUSSED IN OTHER RESEARCH CONDUCTED FOR THIS INQUIRY,"

PROFESSOR LORNE SOSSIN IN RESEARCH PAPER PREPARED FOR THE GOUDGE INQUIRY;

Ontario's Pediatric Forensic Pathology Unit, once headed by Dr. Charles Smith, risks being tainted by its proximity to the Hospital for Sick Children's Sick Children's Suspected Child Abuse and Neglect (SCAN) team, a researcher suggests.

University of Toronto law professor Lorne Sossin, recommends that Ontario should rethink retention of the Unit at the (Hospital) in a paper commissioned by the Goudge Inquiry entitled, "oversight and accountability." (The paper is posted on the Inquiry's Web-site;)

"In addition to an absence of meaningful oversight, the integration of the (Unit) within the pediatric pathology unit at the Hospital for Sick Children(including interaction with the Suspected Child Abuse and Neglect (SCAN) team) may have created a particular kind of institutional culture that contributed to the “think dirty” ethos, discussed in other research conducted for this Inquiry," writes Sossin;

"While there may have been good reasons to establish the (Unit) and locate it in (the Hospital) the viability and desirability of this arrangement continuing should be the subject of further study."

This Bloggist focused this issue in a previous posting entitled "A glimpse of understanding: Part Three; A dangerous mix: Dr Charles Smith and the Hospital for Sick Children SCAN team." (Jan, 2, 2008;"

"In two recent recent postings I have linked Dr. Charles Smith's ability to have such a disastrous effect on Ontario's criminal justice system directly to the decision to appoint him to head the new Ontario Forensic Pediatric Pathology Unit which would be located at the Hospital for Sick Children in Ontario. (A glimmer of understanding; Parts One and Two);" the Blog began.

"One of the unfortunate by-products of this decision is that Smith would have increased influence with the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) Program," it continued.

"Smith, as director of the new prestigious new unit, and the hospital's SCAN unit would prove to be a dangerous mix.

Hospital literature described the SCAN Program as "a hospital-based, multidisciplinary team that offers care, support, and assessment to children and adolescents who may have been abused."

However, as a criminal lawyer, and Editor of the Criminal Lawyers Association Newsletter, In the 1980's I began hearing stories which indicated that the team had a propensity for turning tragic but innocent situations into criminal assaults.

In 1985, I learned about a case which confirmed my worse fears about the program - and wrote bout the case in the Toronto Star, under a headline that read: "They were caring parents, not child abusers"

"Sometimes, people acting with the best of intentions end up achieving the worst possible result," the story began.

"Such was the case in a recent dispute involving a northern Ontario couple and the Catholic Children's Aid Society of Metro Toronto.

The couple were plunged into a nightmare in which they were branded as child abusers of their then one-year-old son and had both of their children taken from them.

In fact, as later became clear when the case landed in court, their son, Tyler,
suffered from a rare bone disease and hadn't been abused at all.

After it became evident that Tyler wasn't developing properly and x-rays had revealed some bone lesions, his parents, whose identity cannot be published, asked their family physician in Elliot Lake to refer the child to Toronto's Hospital for Sick Children for examination by specialists.

But they returned home disappointed, early in January, 1985, as the hospital was unable to pinpoint the disease.

They were unaware that the head of the radiology department had concluded
that the x-rays "were suggestive of child abuse."

They were also unaware that a hospital child abuse team had met in their absence and had asked the medical staff to have the couple return to the hospital with both of their children.

On their arrival, officials of the Metro Children's Aid Society were waiting to "apprehend" both children under a law that permits children at "substantial risk" to be taken from their parents, pending a court hearing.

Bewildered, they returned alone to Elliot Lake to discover that their nightmare had only just begun.

The radiologist's diagnosis that the x-rays were "suggestive" of child abuse had mushroomed into the conclusion by a member of the abuse team that there was "a clear possibility of child abuse."

And the Metro Catholic Children's Aid Society, which had taken over the case, was planning to place Tyler in a foster home and the other child with his natural father.

This move was blocked following the intervention of a lawyer and a private social worker retained by the parents. That led to the children's placement with grandparents.

But the parents couldn't persuade the society to take further steps to find out what was wrong with Tyler, even though a renowned bone disease expert in California had concluded, after viewing the x-rays from the Hospital for Sick Children, that the
lesions were more consistent with bone disease than with fracture.

The expert had suggested to the hospital that certain tests should be carried out, but the hospital declined to perform these particular tests.

The parents were then forced to go to court on April, 22, 1986, to free Tyler so that he could be taken to California, partially at their own expense, and with the help of OHIP, for testing and diagnosis.

After a four-day hearing contested by the society, Family Court Judge Peter Nasmith granted the parents' application and made the decision that led to the proof that Tyler was a sick child, not an abused one, and that the parents were caring human
beings and not child abusers.

The California doctor confirmed his original diagnosis, and after doctors at an Ottawa hospital provided additional confirmation, the society finally withdrew the application to make the boy a crown ward.

What went wrong?

The key is provided by Judge Nasmith's comments at the hearing, where he took the unusual step of telling the society to pay costs to the parents for the legal proceedings.

Having concluded that, "the medical evidence was inconclusive and any evidence of possible abuse was of a very unreliable nature," and noting the difficulties the society faced because of the number of agencies involved and the fact that it was
"obviously influenced (perhaps controlled) by the child abuse team at the Hospital for Sick Children," the judge said: "The fact remains that there was embarrassingly little effort to follow up on what had become a devastating allegation . . . I
think the position (the society) took was unreasonable and even arbitrary."

As to the heart of the problem, Judge Nasmith said: "No doubt the real fly in the ointment here is the child abuse team at the Hospital for Sick Children as they moved from a position of possible abuse to a diagnosis of abuse. This was a surprising stance for them to take, and I think it underlines the need for
a protection agency receiving reports under (child) protection legislation and for courts in these cases to continue to scrutinize the zeal of the well-meaning people who are so understandably devoted to fighting the scourge that is child abuse. This zeal has created a subtle dynamic that can somehow convert a suspicion of child abuse into a presumption of child abuse."

One can sympathize with children's aid societies because of the heavy pressures they face and their dilemma when confronted by complex medical information provided by experts.

But Nasmith's ruling spells out the high standards to be expected of them, and of the experts involved in the medical and social investigation of child abuse, because of the awesome legal and persuasive powers that they possess.

If Tyler's parents hadn't had sufficient commitment and ability - and the support of OHIP, the Ontario Legal Aid Plan, and a dedicated lawyer - what would the situation be now? Sound familiar?

The dangerous mix between Dr. Charles Smith and the Hospital for Sick Children SCAN team was all too apparent in a case before the Inquiry which I have been referring to as "the Timmin's case" in previous postings.

The case is the subject of a court decision released by Provincial Court Judge Patrick Dunn on July 25, 1991, the year the Ontario Forensic Pediatric Pathology Unit was formed and several years after the Nasmith decision. (Dr. Smith had been at the hospital since 1981);

As Dunn noted: "I am not the only person who believed (the babysitter). The Community believed her too until the Crown's shaking theory surfaced. When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts (Dr. Smith and the Hospital for Sick Children SCAN team) it is riddled with reasonable doubts."Why would the babysitter shake Amber to death?

"Dr. Smith suggested by way of provocation that perhaps Amber was a "bear", like his son, when she woke up," Dunn wrote in his powerful 24-page judgment which resonates to this very day.

"In other words, that the child would be provocative by her irritable manner. This is not true on the facts and it was unfair to suggest the possibility because there was no basis for it."

(Dunn also ruled that, "I cannot find that (The Hospital for Sick Children) properly considered the relationship between the Babysitter and Amber or Amber's gentle and non-provocative disposition," as he blasted both Smith and the SCAN team for failing to obtain "a complete and accurate psycho-social history" - even though they new "the importance" of having it.")

I don't propose to dwell on the details case as I have previously addressed it in several postings on this Blog.

Suffice it to point out for now that Dunn expressed, "serious concerns about the manner in which certain physicians at the Hospital for Sick Children ... formulated their diagnosis." (Dunn stressed that wherever the evidence of the SCAN team members clashed with the defence witnesses, "I prefer to accept the evidence of the defence experts."

Dunn stressed that there were flaws in the Hospital for Sick Children approach - "and hence their opinion about shaking should not be given great weight.

"I am not talking now about whether shaking exists or whether it or some other mechanism killed Amber," he explained."

"I mean that the fact gathering process, the communication procedures, and the documentation of the Hospital for Sick Children doctors, involved in this case are such that I am led to question the conclusion they drew, based on the facts as these erstwhile and well-meaning doctors understood them."

Similar comments were made about Dr. Charles Smith's work by the independent reviewers who studied so many of his cases.

A very dangerous mix indeed."

Sossin makes a compelling argument for removing the Unit from the Hospital - which in this Blogster's view has not demonstrated over many years that it deserves the public trust.

This is yet another tough bullet for Commissioner Goudge to bite.

Harold Levy; hlevy15@gmail.com;

Up-Date: Expert Evidence: Part One: Researcher For Goudge Inquiry Recommends Keeping "Child Abuse Experts" Out Of The Criminal Courts;

Buried in all of research studies commissioned by the Goudge Inquiry is a bold recommendation:

"Discontinue the use of “child abuse experts” in criminal trials and carefully assess their use in CAS (Children's Aid Society) hearings until such time that balanced training and educational programs for them can be constructed, or limit the use of numerous experts of this sort in a single trial."

Prof. Katherine Gruspier makes this recommendation in her paper: "Pediatric forensic pathology as forensic science: The role of science and the justice system";

This recommendation will not likely be welcomed by the legions of hospital SCAN-team (Suspected Child Abuse and Neglect) members across Canada who often testify against parents and caregivers - even though they are untrained in forensic science - because they have undertaken child abuse investigations while the child was still alive.

But the recommendation is a breath of fresh air;

Dr. Gruspier is Adjunct Professor of Forensic Science, Forensic
Science Program, University of Toronto at Mississauga and a Consultant Forensic Anthropologist, Office of the Chief Coroner for Ontario.

She notes that, "Opinions expressed are those of the author and do not necessarily represent those of the Office of the Chief Coroner for Ontario or the Commission on Pediatric Forensic Pathology or the Commissioner".

"Untrained in forensics, child abuse experts are clearly advocates," Gruspier writes in the "Conclusions" section of her paper, which is published on the Goudge Inquiry Web-site;

"The courts allow these individuals to opine outside of their area of expertise to provide opinions on the cause of death, or the cause of trauma in a living child, and the Marquard remedy of limiting the weight of these opinions is of dubious effectiveness," she continues.

(The Supreme Court of Canada ruled in the Marqhard case that expert evidence need not be rejected in its entirety merely because the witness ventured an opinion beyond the area of expertise in which he or she is qualified. Instead, the remedy for the judge to instruct the jury to disregard the evidence);

"It is true that the most vulnerable in our society will always need a voice to speak for them, but the platform should not be the criminal courts.

If the cause of death of a child is undetermined by a forensic expert, then
perhaps it truly is undetermined.

If the Crown can make a case for guilt on circumstantial evidence, then they should, but it should not rely upon overwhelming the trier of fact with numerous “experts” spouting unscientific interpretations.

In the past few decades, medical advances have allowed for the continuation of life in cases of children who, if born prematurely prior to this period, would have died. As yet, the consequences of these efforts at preservation of life in the premature infant are not truly understood.

Advances in medical imaging have allowed the radiologist to see things that have previously not been seen inside the human body, and for some reason they interpret these findings as suspicious rather than developmental.

Counsel should be, first, an officer of the court, but in these cases it appears that they are stacking the deck in order to win their case."

Gruspier notes in her paper that, "it is not uncommon for the courts to qualify
persons associated with clinical child abuse teams as child abuse experts, although the field does not exist by way of examination and certification.

"These experts are often called in cases where a child did not survive, but they are equally as commonly utilized in child custody cases and cases where the child survived.

In these cases, there may be no forensic pathologist or forensically trained individual involved at all";

Gruspier is particularly concerned that, "In cases both where the child has survived and where it has not, we see this unique contribution of other “experts” to a conviction.

In no other types of forensic pathology cases do we see a troop of experts who are produced for the trial who have made a determination of the cause and manner of death based in part upon an interview of the suspect, usually prior to the death of the individual.

This is what happens when a team like the (Hospital for Sick Children) SCAN team is activated".

Gruspier acknowledges that "other medical experts" may be called to provide "ancillary studies" for forensic pathologist.

She stresses, however, that these experts, "will testify as to their specific
findings, within their area of expertise, and will not normally provide the cause and
manner of death in their reports or testimony."

This Blogster will be watching Commissioner Stephen Goudge's report carefully to see if he will bite the bullet on this well-justified recommendation.

SCAN-teams have contributed to wrongful prosecutions and miscarriages of justice within our criminal justice system - as has been demonstrated by several of the cases before the inquiry.

Justice Goudge can do something about it.

Harold Levy...hlevy15@gmail.com;

Big Game: Part Three: Expert Evidence; The Judge As Gatekeeper;

If, in fact, the criminal justice system is little more than a "big game" in the minds of players such as Dr. Charles Smith, what must judges do to ensure there is an element of fair play?

This Bloggist's view is that the judge has to be the ultimate protector of both the accused and the integrity of the criminal justice system when it comes to so-called "expert" evidence.

It is therefore somewhat disheartening to learn from Patrick LeSage, former Chief Justice of the Superior Court of Ontario, that judges in Ontario rarely intervene in the expert witness qualification process.

Here is his explanation:

"We don't question authority enough in some occasions.

So somebody comes in as an expert, and I'm going to say that's a word I always
avoided with a -- with a jury.

I didn't refer to them as experts.

(I) referred to them -- to people who, because of their training and experience, were permitted to give an opinion, because I think even using the word expert is --
is already cloaking them with -- with a great authority, which maybe they ought not have.

Did I -- did I, or -- question the expertise sufficiently?

Did defence counsel, or Crown counsel as the case might be, question the expertise, the basis, the underpinnings of it as much as we ought to have?

In many cases, no, we didn't.

The question you ask is in part who's response -- who is responsible to see that the expertise is questioned, challenged, assessed -- accurately and thoroughly assessed, before the evidence is -- is permitted to be -- to be given.

And it -- that -- that's -- I've always found that a difficult issue, because we
have an adversary system, and we believe quite strongly in our adversary system, maybe too strongly, I'm not sure.

And as such, I tended as a judge to more like a sphinx than a -- than an activist, and I tended to sit back and allow the responsibility for the determination of the question which I'm going to have to determine, but the -- the -- providing the -- the information upon which I was to make that decision, I really left to counsel.


And if counsel didn't raise it, I probably said well it's the adversary system, I'm not the advocate for either the Crown or the defence, the plaintiff or defendant, and, so to what extent do I become the advocate, or the defender, of the qualifications of this particular witness.

I think it's fair to say, however, that there is a -- well, it's already been said, that there's a great responsibility on the adjudicator to make an informed decision, and how do you make an informed decision if the evidence has not been adduced before you?

I find that a bit of a conundrum.

Should I launch into my own questioning and inquiry?

I don't know that answer to that question.

I -- my -- by nature, because of I always believed in -- more in the passivity of a judge, I probably often didn't inquire deeply enough into the expertise.

But unquestionably, we do cloak the expert, the opinion giver, with an authority that is very often not justified."

LeSage candidly told lawyer Jeffrey Manishen that, "I regret to say that I have
probably have only rejected maybe a half a dozen proffered experts".

Asked why he rejected the evidence in those cases, LeSage replied:

And -- and what test did I use? You know, I'm not even sure what test I used.

But I -- I probably -- I probably determined they didn't have a clue about what it is that they were supposed to be testifying about.

Or they had -- I mean they had no basis. shouldn't say they didn't have a -- they had no basis upon which to come to their conclusion.

And it's -- it's -- you often see it in the -- I won't say often, you sometimes see it in the role of reconstruction, highway reconstruction issues.

You know, it's just -- it's just -- somebody's pet theory -- that's nothing more.

But I've also rejected it in matters of art experts, and I can't remember what -- what else.

But I -- although I probably fell into it."

To this humble Bloggist, Justice Lesage's exlanation covers only one half of the story.

The other half is that some judges, like some other actors in the criminal justice and some journalists, bought into the myth of the great, reliable forensic pediatric pathologist Dr. Charles Randal Smith, and failed to do their job.

I discussed a prime example of this phenomena in an earlier posting, entitled: "Smith's credibility boosted in courtroom, Mullins-Johnson's lawyers claim":


"Lawyers for William Mullins-Johnson claim in a factum filed in the Ontario Court of Appeal that Dr. Charles Smith's credibility as boosted not only by himself and other witnesses but by the prosecutor and the trial judge," the Blog began.

"Dr. Smith’s appearance at the trial undoubtedly made a powerful impression on the jury, and it was his opinion that enabled the jury to conclude that there was physical evidence of Valin’s murder having occurred while she was being sodomized," it continued.

Firstly, before Dr. Smith was called, the Crown asked Dr. (Bhubendra) Rasaiah (the pathologist who presided over Valin's autopsy: director of pathology at the General Hospital in Sault Ste. Marie) about him:

Q. And who is [Dr. Charles Smith]?

A. Doctor Charles Smith is the professor of pediatric pathology, and he’s a nationally known figure on forensic pathology.

Q. Okay Doctor, thank you.

During his presentation of his resume to the jury, Dr. Smith was asked:
Q. Sir, how many people do the specific type of work that you do?

A. At the hospital do you mean?

Q. At the hospital or perhaps throughout Canada.

A. Okay. At the hospital there are, there are three of us.

I do the majority of the work and if I’m not there someone has to stand in my place, so, I do that.

The pediatric forensic pathology unit is unique.

We are not aware or the Chief Coroner is not aware that there is in existence anywhere in North America such a unit.

So because of that I probably do a little bit more of this kind of work than anyone else in the country. (emphasis added)

In his closing, the Crown summarized Dr. Smith’s seemingly impeccable credentials:

You look at Doctor Smith. Who is Doctor Smith?

Well, you saw him on the stand.

Of all of them, I mean, you take a look at this guy’s curriculum vitae, that’s just a fancy way of saying all his qualifications, and you see what that fellow has done and you see the type of things that he’s dealt with, and he tells you over here that, you know, he deals now with pediatrics and Sick Children’s Hospital, and the types of cases he does and the number of it he does, and he does that exclusively dealing with children, and you see the type of qualifications he has but, how did he get involved?

He got involved because there’s a program called SCAN, Suspicious Child Abuse and Neglect.

And Rasaiah sends that down to him because he sees suspicious child abuse.

So he sends that down to that SCAN team, and they send it to somebody there and it’s a Doctor (Marcellina) Mian, and because the child is dead they call in Doctor Smith.

And that’s what he does, and that’s how he gets involved.

In the midst of giving his damning opinion about the recent injury to Valin’s rectum, Dr. Smith claimed that he was “trying to be a little conservative or a little cautious here.”

He made similar claims elsewhere in his testimony when, in fact, his opinion was far more radical than that of any of the other experts.

But appearances can be deceptive, and the Crown felt able to present him to the jury in his closing as a knowledgeable person, a down to earth person that was able to explain things and a person that knew and was pretty fair about answering questions...

The trial judge made comments during Dr. Smith’s evidence that made it clear that he had been impressed by Dr. Smith’s presentation.

Thus, in response to an objection by defence counsel to a question put by the Crown to Dr. Smith, the trial judge said:

THE COURT: I sense this witness exercising himself considerably to be objective and to be professional and I do not have any concern about the form of the question in the context of the evidence I have heard so far. But thank you, Mr. (TG) O’Hara (Mullins-Johnson's trial lawyer).

At the conclusion of Dr. Smith’s testimony, the trial judge said:

THE COURT: Doctor, I believe firmly in the adversarial system so I am not going to interfere with it except to say that I thank you for coming. I know you are busy, I know there were problems - -


It was unfortunate that Dr. Smith’s credibility was boosted in these ways..."

(End of portion from factum);

William Mullins-Johnson was wrongly convicted of first-degree murder and sentenced to life imprisonment for a sexual assault and murder which never occurred.

There are important lessons here for both judges and prosecutors.

Harold Levy; hlevy15@gmail.com;

The Doctor And The Judge: Part Three: Fact, Fantasy or Outright Lie?

In recent postings I examined the question whether Dr. Smith's oft-repeated account of two detailed conversations with Judge Patrick Dunn about the Amber case - one on an airplane and one at a judge's conference years later - was fact or fantasy.

To this Bloggist it now appears to be an outright lie.

(See The Doctor and the Judge: Part One and Part Two);

During these alleged conversations (one supposedly made during the course of the trial) Dunn allegedly praised Dr. Smith his colleagues on the Suspected Child Abuse and Neglect Team at the Hospital For Sick Children in Toronto for their scientific evidence at the babysitter's trial and declared that in his view, the babysitter, whom he had acquitted, was actually "guilty as sin";

(Dunn had rejected their evidence in the judgment he delivered when acquitting the babysitter of manslaughter);

But yesterday Smith told Commission Counsel Linda Rothstein that it was not necessary to bring Judge Dunn to testify because he did not challenge Dunn's a sworn affidavit denying that these conversations had occurred.

Here is the exchange:

"MS. LINDA ROTHSTEIN: And you were asked by Commission Counsel whether it was necessary to call Justice Dunn as a witness to speak to any of the facts
set out in his affidavit. You understood that, did you not --

DR. CHARLES SMITH: I understood --

MS. LINDA ROTHSTEIN: -- Dr. Smith?

DR. CHARLES SMITH: -- that was a possibility, yes.

MS. LINDA ROTHSTEIN: And your counsel told the Inquiry that you did not intend to dispute any of the facts set out in Justice Dunn's affidavit and therefore, it was not necessary for the Commission to call Justice Dunn to give evidence and be cross-examined. True?

DR. CHARLES SMITH: That's correct."

The implications of this implied admission are enormous.

First, it means that he unabashedly slandered Judge Dunn - by stating Dunn had discussed the case with him during the trial - to the numerous people he recounted the story to over the years colleagues at the Hospital For Sick Children and senior officials of the Ontario Chief Coroner's Office.

Secondly, it means he mislead the College of Physicians and Surgeons of Ontario - to whom he gave a written account of the story in response to a complaint launched by the babysitter's parents.

To put it bluntly, he lied to his governing body.

(This has serious implications because Dr. Smith is still a member of the College - and subject to its jurisdiction - and because he pleaded guilty in 2005 to misleading the Saskatchewan College of Physicians and Surgeons on his application for temporary membership).

Here is a relevant portion of yesterday's testimony:

"Ms. Rothstein: In the middle of the first paragraph, you say: "In spite of several days of vigorous cross-examination by the defence counsel for SM, Mr. Renault, my opinion did not waiver." You then say:"Furthermore, on two (2) occasions during my week of testimony, the judge, Patrick Dunn, discussed my evidence "Two (2) occasions".Those words were not true, were they, Dr. Smith?

DR. CHARLES SMITH: No. I -- I erred -- I erred in that.

MS. LINDA ROTHSTEIN: And you knew they were not true when you wrote them, sir.

(BRIEF PAUSE)

DR. CHARLES SMITH: I'm not sure just -- just what my thinking was then. I don't recall. But they are wrong, and -- and I'm very sorry for that.

MS. LINDA ROTHSTEIN: Discussed my evidence with me at length." Those words are completely untrue, are they not?

DR. CHARLES SMITH: That's wrong. That's -- that's what I believed, but that is -- it is not true, and I acknowledge that.

MS. LINDA ROTHSTEIN: Doctor, you knew that wasn't true when you wrote that.

DR. CHARLES SMITH: No. No. When I got off the aircraft, if you had asked me about my flight, or would have -- what I would have told you because that was
my -- that was my understanding or my reaction.


MS. LINDA ROTHSTEIN: He repeatedly indicated to me that he believed SM to be guilty."

DR. CHARLES SMITH: That's -- I believe I heard what I wanted to hear on that -- he -- based on his complimentary statements about -- about the witnesses. And I now realize that that was, perhaps, better described as pleasantries in his conversation, so. Though -- though that was my interpretation, and I believe I came to believe my interpretation, I recognize that that is wrong, and I -- nd I'm terribly, terribly embarrassed by it."

Thirdly, and perhaps most serious, Smith repeated this admitted lie under oath in court and has therefore exposed himself to a prosecution for perjury.

He repeated the lie under at a preliminary hearing in 1994 when being questioned by the defence lawyer as to his scathing criticism of the pathologist who conducted the autopsy;

Here is the relevant evidence from yesterday's session of the Inquiry:

"MS. LINDA ROTHSTEIN: (Reading from transcript of preliminary hearing):
Q: But people have said that about
you. They've alleged you've done
shoddy work, too.
A: That's absolutely true.
Q: Judges have said that about you.
You've done shoddy work.
A: One (1) judge. I'm told by you,
one (1) judge wrote that in his


submission. I don't know. I don't
know what he wrote. That's Judge Dunn,
who prior to the -- hearing the defence
experts, in fact, told me on more than
one (1) occasion -- private
conversations -- how hasty he was with
the work I had done and others had
done, at the hospital."

(End of preliminary hearing testimony - back to yesterday's evidence):

Dr. Smith, you did know what Justice Dunn had said about you because you had read his reasons for a decision, had you not?

DR. CHARLES SMITH: Yes. By that time I would have, yes. Yes.

MS. LINDA ROTHSTEIN: You also knew perfectly well that Justice Dunn had never said on more than one (1) private occasion how hasty he was with the work that you or others had done at the hospital.

DR. CHARLES SMITH: That -- that's correct. I don't -- I don't remember this remark, or this statement about --

MS. LINDA ROTHSTEIN: Your testimony was untrue, sir.

DR. CHARLES SMITH: It was wrong.

MS. LINDA ROTHSTEIN: It was untrue, sir.

DR. CHARLES SMITH: Yes. It's a mistake, and I was wrong. Yes.

MS. LINDA ROTHSTEIN: You were under oath, Dr. Smith.

DR. CHARLES SMITH: And -- and I understand that, and -- and I made a mistake. I'm not sure why I made that mistake, but I made a mistake, and
it was wrong."

Why did Dr. Smith make up this elaborate lie?

Commission Counsel Rothstein asked Smith if he had persuaded himself that Dunn had made the comments because he felt the Dunn's decision had the power to unfairly expose you to criticism.

Rothstein also wondered if, as the years went on, he became concerned that the case would cast a shadow over his work;

But Smith appeared reluctant to articulate a motive for perjury out of his own lips, as he repeatedly conceded nothing more than being, "embarrassed".

This humble Bloggist is more interested in what the lies say about Dr. Smith than in whether he can be thrown out of the medical profession or prosecuted for perjury.

There's lots of time for that. (And it is not the purpose of the public inquiry to assign blame);

At the outset, he (Smith) did not hesitate to hesitate to slander a good judge who was in no position to defend himself.

Good, honourable people don't do that.

Especially good Christians who are supposed to cherish the truth.

He did not hesitate to mislead the governing body of his own profession - as he had done in Saskatchewan.

There is pattern here.

Doctors are supposed to be open and direct with the College because the College has been given the awesome responsibility of regulating the medical profession for the protection of the public.

If he is willing to mislead his own profession, why will hesitate to mislead the courts, the police or any other institution of government?

His defence - that this was not a lie - it was merely what he wanted to hear - is the ultimate evasion of personal responsibility.

If indeed, it was all a fantasy - something Dr. Smith wove together in his mind because he wanted it to be that way - we are then faced with serious concerns about Dr. Smith's mental health and sense of reality.

Moreover, if he will lie under oath in a criminal case where someone is charged with murdering a child, why wouldn't he lie under oath in cases where parents or caregivers are charged with murdering children in order to help the Crown win the case?

After all, he testified that he tended to see himself as a member of the prosecution team who was committed to helping the Crown win.

To think that this man was once the revered Dr. Charles Smith who for many years was worshipped throughout the world of forensic world - and his word was treated like gold in the courts.

Dr. Charles Randal Smith.

A very ugly man.

A note to Janet: Thank you for pointing out that I had referred to the babysitter as Amber - which, of course, is the name of the deceased child. It's not a defence, but occasionally I find it difficult to keep identities straight when publication bans apply to the story - as is the case here. I appreciate your prompt response. Responses like this help insure the accuracy of this Blog. Thanks again, Harold;

Harold Levy...hlevy15@gmail.com;