This CBC story up-dates Kirk Makin's story in Thursday's Globe and Mail;
It ran today - Friday October 24 - under the heading "Two women will appeal convictions on disgraced pathologist's work;"
"Two Ontario mothers convicted in the deaths of their babies, based partly on information from a since-disgraced pathologist, will file appeals," the story began.
"Lawyer James Lockyer said Friday an Ontario Court of Appeal judge granted his clients an extension and that he'll appeal their convictions," the story continued.
"Lockyer said an order keeping the women's identities from being made public was also granted on Friday.
The women say that they felt compelled to plead guilty to homicide after disgraced pathologist Dr. Charles Smith implicated them in the deaths.
Both women are among more than a dozen people convicted or charged based, in part, on Smith's findings.
Those findings were the subject of a recent inquiry headed by Mr. Justice Stephen Goudge, who slammed Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions.
One woman pleaded guilty to manslaughter in 1998 and received a conditional sentence and three years probation.
The other was charged in 1992 and pleaded guilty to manslaughter in 1994, and received a suspended sentence and three years probation.
"Probably the next move is for the Attorney General's office to assess their position on the cases," Lockyer said, which he expects to happen in the next three months or so.
The appeals will likely be heard sometime next year, Lockyer added."
Harold Levy...hlevy15@gmail.com;
Friday, October 24, 2008
TWO WOMEN CONVICTED OF HOMICIDE IN SMITH CASES ASK ONTARIO COURT OF APPEAL TO REOPEN THEIR CASES SO THEY CAN PROVE THEIR INNOCENCE;
"THE WOMEN – BOTH OF WHOM REMAIN CHILDLESS – ARE AMONG NEARLY 20 INDIVIDUALS BELIEVED TO HAVE BEEN WRONGLY CONVICTED OR CHARGED BASED ON ERRONEOUS CONCLUSIONS FROM DR. SMITH, THE RECENT SUBJECT OF AN INQUIRY HEADED BY MR. JUSTICE STEPHEN GOUDGE.
IN EACH CASE, EXPERT PATHOLOGISTS WHO REVIEWED DR. SMITH'S AUTOPSY WORK RECENTLY DISPARAGED HIS FINDINGS OF ASPHYXIA.
THEY STATED THAT HE WAS WRONG TO REACH A FIRM CONCLUSION POINTING TO FOUL PLAY BASED ON SLIM EVIDENCE, AND WHEN OTHER EXPLANATIONS – SUCH AS THE INFANTS BEING DEPRIVED OF OXYGEN IN THE BIRTH CANAL – WERE POSSIBLE."
REPORTER KIRK MAKIN: THE GLOBE AND MAIL;
-------------------------------------------------------------------------------
The heartbreaking story of these two women is set out in a n article in Thursday's Globe and Mail by Justice reporter Kirk Makin;
"Haunted by criminal convictions that have dogged them since the deaths of their newborn babies almost 15 years ago, two women will ask the Ontario Court of Appeal Friday to reopen their homicide convictions to enable them to prove their innocence," Makin's article begins;
"In stirring affidavits filed with the court, the two Ontario women said that they felt compelled to plead guilty to homicide offences after pathologist Charles Smith – at the time, the country's leading pediatric pathologist – implicated them in the horrifying deaths," the article continues.
"“I do not believe that I caused my baby's death,” one woman said. “To this day, I remain haunted by the events of that day. I have never come to grips with this, and I am ashamed and traumatized. The pain of thinking that I was labelled a baby killer was devastating to me.”
The women – both of whom remain childless – are among nearly 20 individuals believed to have been wrongly convicted or charged based on erroneous conclusions from Dr. Smith, the recent subject of an inquiry headed by Mr. Justice Stephen Goudge.
In each case, expert pathologists who reviewed Dr. Smith's autopsy work recently disparaged his findings of asphyxia.
They stated that he was wrong to reach a firm conclusion pointing to foul play based on slim evidence, and when other explanations – such as the infants being deprived of oxygen in the birth canal – were possible.
One of the women pleaded guilty to manslaughter in 1998. She received a conditional sentence and three years probation.
The other was 21 when she was charged, in 1992. She pleaded guilty to manslaughter in 1994, and received a suspended sentence, three years probation and 300 hours of community service.
In affidavits filed by defence lawyers James Lockyer and Alison Craig, each woman described a harrowing scene in which she gave birth in the bathroom of her family home.
Both swore that they did not know that they were pregnant until, panicking and suffering excruciating pain, they saw their baby's head emerge.
The younger woman recalled drifting in and out of consciousness on the night of the birth. “Sitting in a bathroom with my own blood around me is an experience I hope never to have again,” she said in her affidavit.
Her father found her shivering in bed the next morning and took her to the hospital.
After a 15-month investigation, police held a news conference to announce her arrest.
They alleged that she had killed the infant, and then placed its remains in a plastic bag and put it in her closet.
“I simply cannot remember placing my baby's body in a bag and putting it in my closet,” the woman's affidavit said. “My inability to remember upsets me.”
She recalled being guilt-stricken and horrified at the prospect of her family having to testify at a trial.
She told of being repeatedly warned that Dr. Smith's opinion invariably carried great weight in court.
The second woman echoed those words, stating in her affidavit that lawyers, “described Dr. Smith as the leader in his field, with almost a God-like presence in court.
“I was terrified of going to jail,” she said. “I would have done anything to avoid having to return to prison. I was a young woman with goals and ambitions. The charge of murder that hung over me was all-consuming.”
In the second case, the baby's remains were found in the bathroom toilet. Under intense police interrogation, the mother could remember only disjointed snatches of what had taken place.
“Bits and pieces of that night have come back to me, but I still have no memory of ever placing the baby in the toilet,” she said. “It made no noise and, as far as I could tell, it was not moving or breathing.”
Both women implored the court to grant them anonymity, saying that they were shunned by their communities, and now fear that renewed publicity will destroy their personal lives and prospects for continued employment."
Harold Levy...hlevy15@gmail.com;
IN EACH CASE, EXPERT PATHOLOGISTS WHO REVIEWED DR. SMITH'S AUTOPSY WORK RECENTLY DISPARAGED HIS FINDINGS OF ASPHYXIA.
THEY STATED THAT HE WAS WRONG TO REACH A FIRM CONCLUSION POINTING TO FOUL PLAY BASED ON SLIM EVIDENCE, AND WHEN OTHER EXPLANATIONS – SUCH AS THE INFANTS BEING DEPRIVED OF OXYGEN IN THE BIRTH CANAL – WERE POSSIBLE."
REPORTER KIRK MAKIN: THE GLOBE AND MAIL;
-------------------------------------------------------------------------------
The heartbreaking story of these two women is set out in a n article in Thursday's Globe and Mail by Justice reporter Kirk Makin;
"Haunted by criminal convictions that have dogged them since the deaths of their newborn babies almost 15 years ago, two women will ask the Ontario Court of Appeal Friday to reopen their homicide convictions to enable them to prove their innocence," Makin's article begins;
"In stirring affidavits filed with the court, the two Ontario women said that they felt compelled to plead guilty to homicide offences after pathologist Charles Smith – at the time, the country's leading pediatric pathologist – implicated them in the horrifying deaths," the article continues.
"“I do not believe that I caused my baby's death,” one woman said. “To this day, I remain haunted by the events of that day. I have never come to grips with this, and I am ashamed and traumatized. The pain of thinking that I was labelled a baby killer was devastating to me.”
The women – both of whom remain childless – are among nearly 20 individuals believed to have been wrongly convicted or charged based on erroneous conclusions from Dr. Smith, the recent subject of an inquiry headed by Mr. Justice Stephen Goudge.
In each case, expert pathologists who reviewed Dr. Smith's autopsy work recently disparaged his findings of asphyxia.
They stated that he was wrong to reach a firm conclusion pointing to foul play based on slim evidence, and when other explanations – such as the infants being deprived of oxygen in the birth canal – were possible.
One of the women pleaded guilty to manslaughter in 1998. She received a conditional sentence and three years probation.
The other was 21 when she was charged, in 1992. She pleaded guilty to manslaughter in 1994, and received a suspended sentence, three years probation and 300 hours of community service.
In affidavits filed by defence lawyers James Lockyer and Alison Craig, each woman described a harrowing scene in which she gave birth in the bathroom of her family home.
Both swore that they did not know that they were pregnant until, panicking and suffering excruciating pain, they saw their baby's head emerge.
The younger woman recalled drifting in and out of consciousness on the night of the birth. “Sitting in a bathroom with my own blood around me is an experience I hope never to have again,” she said in her affidavit.
Her father found her shivering in bed the next morning and took her to the hospital.
After a 15-month investigation, police held a news conference to announce her arrest.
They alleged that she had killed the infant, and then placed its remains in a plastic bag and put it in her closet.
“I simply cannot remember placing my baby's body in a bag and putting it in my closet,” the woman's affidavit said. “My inability to remember upsets me.”
She recalled being guilt-stricken and horrified at the prospect of her family having to testify at a trial.
She told of being repeatedly warned that Dr. Smith's opinion invariably carried great weight in court.
The second woman echoed those words, stating in her affidavit that lawyers, “described Dr. Smith as the leader in his field, with almost a God-like presence in court.
“I was terrified of going to jail,” she said. “I would have done anything to avoid having to return to prison. I was a young woman with goals and ambitions. The charge of murder that hung over me was all-consuming.”
In the second case, the baby's remains were found in the bathroom toilet. Under intense police interrogation, the mother could remember only disjointed snatches of what had taken place.
“Bits and pieces of that night have come back to me, but I still have no memory of ever placing the baby in the toilet,” she said. “It made no noise and, as far as I could tell, it was not moving or breathing.”
Both women implored the court to grant them anonymity, saying that they were shunned by their communities, and now fear that renewed publicity will destroy their personal lives and prospects for continued employment."
Harold Levy...hlevy15@gmail.com;
JUSTICE GOUDGE'S FINDINGS; PART TWO; NICHOLAS' CASE; (2); MAURICE GAGNON'S COVERING LETTER TO SOLICITOR GENERAL TSUBOUCHI;
Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.
Nicholas was the child of Lianne Gagnon and Steven Tolin.
Nicholas died on November 30, 1995, in Sudbury.
Nicholas was 11 months old at the time of his death.
Criminal proceedings were not initiated.
The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.
The proceedings concluded on March 25, 1999 when the society withdrew the protection application;
------------------------------------------------------------------------------
Justice Stephen Goudge ruled in his report that: "Mr. (Maurice) Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the Chief Coroner's Office were legitimate. Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."
One of those complaints - concerning the role played in the investigation of his grandson's death by Deputy Chief Coroner Dr. Jim Cairns - was directed to then Solicitor General David Tsubouchi, who was responsible for the Chief Coroner's Office. on March 6, 2000.
Maurice Gagnon wrote Tsubouchi on March 6, 2000;
This was an opportunity for the Ontario Government to take action, review Dr. Smith's work, and rein him in before he caused even more harm.
This, of course,was not likely, in a ministry in which then Chief Coroner Dr.James Young, Dr. Smith's protector, was also Assistant Deputy Solicitor General;
Maurice Gagnon's moving covering letter to Mr. Tsubouchi - filed as an exhibit at the Inquiry - read as follows.
Dear Minister:
Re: Complaint Against Dr James T. Cairns -in the matter of Investigation of the death of Nicholas Gagnon
I wish to register a complaint against Dr. James T. Cairns, Deputy Chief Coroner for the Province of Ontario, for his actions in the investigation of the death of my grandson, Nicholas Gagnon.
It is my contention that in the matter of this investigation, Dr. Cairns demonstrated elements of negligence, recklessness, indifference, while being driven by a personal agenda, which resulted in the unjustified persecution of my daughter over a period of three years.
I fear that Dr. Cairns, has been caught up in a child-abuse hysteria that has swept over this land. Using the influential Office of the Chief Coroner, Dr. Cairns has become the Joe McCarthy of child abuse in this Province, recklessly persecuting innocent victims, all in the name of the proverbial "just cause". In lesser times this type of action was called a "witch hunt".
Any student of history will know of U.S. Senator Joseph McCarthy's Communist witch- hunts of the 1950's. A communism- hysteria had swept over post-war America. Supported by this social hysteria, the opportunistic Joe McCarthy embarked on a crusade to save the United States. The "Red Hunts" destroyed countless innocent lives. McCarthy's right- hand man was the attorney, Roy Cohn who would develop the cases (identify the victims), and McCarthy would "tie them to the stake". It was Cohn's over-zealousness which finally brought McCarthy down- that, and the now-famous line by attorney Joseph Welch, on national television, "Have you no sense of decency, sir"?
Accepting that Dr Cairns and Dr Smith are competent in their respective positions, you will see the uncanny parallel between the McCarthy/Cohn crusades to rid the world of communism, and the Cairns/Smith duo, eradicating child-abuse in Ontario. Where, indeed, is the "decency" in attacking innocent, grieving mothers.
Dr. Cairns articulated his philosophy quite succinctly during an interview on CBC's fifth estate program (Nov 10, 1999). Dr. Cairns, in responding to the interviewer's question regarding this case, stated: "Children die as a result of abuse. When we have no explanation for it, we have to consider the possibility that foul play is involved".
Quite simply, if the pathologist (in this case-Dr. Charles Smith) cannot ascertain a definite cause of death, the death necessarily resulted from foul play - a homicide.
This theory is reinforced if the caregiver, the mother in this case, cannot explain how/why the child died - the very answer she is desperately hoping the "experts" will provide.
Even after a second autopsy and a police investigation could not produce, in the opinion of the Crown Attorney, any sustainable evidence to support criminal charges, the Cairns/Smith persecution of my daughter continued. They simply would not concede that they may have been a little over-zealous in their conclusions.
In a meeting with Dr Cairns, in Feb 1998, after criminal investigations were dropped, and before the CAS debacle, I asked why he simply didn't admit that the Coroner's Office did not know the cause of Nicholas' death. To which he responded: "If I did that, you would walk over to the Solicitor General and have me fired."
I would expect that, to this day, rather than apologize, Dr Cairns will rationalize -insisting that his (irresponsible) actions were in keeping with the investigation of a child's death.
I have been informed that until the Sudbury Regional Police are advised that Dr Smith's allegations have been rejected by the Coroner's Office, this case will remain open, and my daughter will continue to be under suspicion of murder. Apparently, Dr Cairns is refusing to admit that he and Dr Smith were in error, despite the overwhelming discredit of that evidence. i.e:
The Crown Attorney
Four pathologists (Chen, Halliday, Case, and deSA)
Justice Gauthier
Finally, you may want to ascertain how many such unsustainable pediatric death cases Dr Cairns and Smith have pursued in the last ten years.
There needs to be accountability - if not for the pain and suffering caused by these witch- hunts, at least for the hundreds of thousands of dollars that this reckless crusade is costing the taxpayers. Add to that the legal aid funds used by other defendants, including Louise Reynolds in Kingston, and I would venture that total public costs are now in the millions.
You may be interested to know that the airing of the fifth estate prompted calls from other "victims", with similar stories of wrongful persecution. Ours is, by no means, an isolated case.
I fear that the "system", which has failed this family (and others) so miserably, has been perverted. You have the opportunity to restore the tarnished credibility of the Chief Coroner's Office, and ensure that citizens are treated fairly and justly.
Your Administration continues to advocate "accountability". I will trust that this commitment is equally applied to the public sector.
Sincerely,
Maurice O. Gagnon
Next post: Maurice Gagnon's complaint against Dr. Cairns; (First part)
Harold Levy...hlevy15@gmail.com;
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.
Nicholas was the child of Lianne Gagnon and Steven Tolin.
Nicholas died on November 30, 1995, in Sudbury.
Nicholas was 11 months old at the time of his death.
Criminal proceedings were not initiated.
The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.
The proceedings concluded on March 25, 1999 when the society withdrew the protection application;
------------------------------------------------------------------------------
Justice Stephen Goudge ruled in his report that: "Mr. (Maurice) Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the Chief Coroner's Office were legitimate. Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."
One of those complaints - concerning the role played in the investigation of his grandson's death by Deputy Chief Coroner Dr. Jim Cairns - was directed to then Solicitor General David Tsubouchi, who was responsible for the Chief Coroner's Office. on March 6, 2000.
Maurice Gagnon wrote Tsubouchi on March 6, 2000;
This was an opportunity for the Ontario Government to take action, review Dr. Smith's work, and rein him in before he caused even more harm.
This, of course,was not likely, in a ministry in which then Chief Coroner Dr.James Young, Dr. Smith's protector, was also Assistant Deputy Solicitor General;
Maurice Gagnon's moving covering letter to Mr. Tsubouchi - filed as an exhibit at the Inquiry - read as follows.
Dear Minister:
Re: Complaint Against Dr James T. Cairns -in the matter of Investigation of the death of Nicholas Gagnon
I wish to register a complaint against Dr. James T. Cairns, Deputy Chief Coroner for the Province of Ontario, for his actions in the investigation of the death of my grandson, Nicholas Gagnon.
It is my contention that in the matter of this investigation, Dr. Cairns demonstrated elements of negligence, recklessness, indifference, while being driven by a personal agenda, which resulted in the unjustified persecution of my daughter over a period of three years.
I fear that Dr. Cairns, has been caught up in a child-abuse hysteria that has swept over this land. Using the influential Office of the Chief Coroner, Dr. Cairns has become the Joe McCarthy of child abuse in this Province, recklessly persecuting innocent victims, all in the name of the proverbial "just cause". In lesser times this type of action was called a "witch hunt".
Any student of history will know of U.S. Senator Joseph McCarthy's Communist witch- hunts of the 1950's. A communism- hysteria had swept over post-war America. Supported by this social hysteria, the opportunistic Joe McCarthy embarked on a crusade to save the United States. The "Red Hunts" destroyed countless innocent lives. McCarthy's right- hand man was the attorney, Roy Cohn who would develop the cases (identify the victims), and McCarthy would "tie them to the stake". It was Cohn's over-zealousness which finally brought McCarthy down- that, and the now-famous line by attorney Joseph Welch, on national television, "Have you no sense of decency, sir"?
Accepting that Dr Cairns and Dr Smith are competent in their respective positions, you will see the uncanny parallel between the McCarthy/Cohn crusades to rid the world of communism, and the Cairns/Smith duo, eradicating child-abuse in Ontario. Where, indeed, is the "decency" in attacking innocent, grieving mothers.
Dr. Cairns articulated his philosophy quite succinctly during an interview on CBC's fifth estate program (Nov 10, 1999). Dr. Cairns, in responding to the interviewer's question regarding this case, stated: "Children die as a result of abuse. When we have no explanation for it, we have to consider the possibility that foul play is involved".
Quite simply, if the pathologist (in this case-Dr. Charles Smith) cannot ascertain a definite cause of death, the death necessarily resulted from foul play - a homicide.
This theory is reinforced if the caregiver, the mother in this case, cannot explain how/why the child died - the very answer she is desperately hoping the "experts" will provide.
Even after a second autopsy and a police investigation could not produce, in the opinion of the Crown Attorney, any sustainable evidence to support criminal charges, the Cairns/Smith persecution of my daughter continued. They simply would not concede that they may have been a little over-zealous in their conclusions.
In a meeting with Dr Cairns, in Feb 1998, after criminal investigations were dropped, and before the CAS debacle, I asked why he simply didn't admit that the Coroner's Office did not know the cause of Nicholas' death. To which he responded: "If I did that, you would walk over to the Solicitor General and have me fired."
I would expect that, to this day, rather than apologize, Dr Cairns will rationalize -insisting that his (irresponsible) actions were in keeping with the investigation of a child's death.
I have been informed that until the Sudbury Regional Police are advised that Dr Smith's allegations have been rejected by the Coroner's Office, this case will remain open, and my daughter will continue to be under suspicion of murder. Apparently, Dr Cairns is refusing to admit that he and Dr Smith were in error, despite the overwhelming discredit of that evidence. i.e:
The Crown Attorney
Four pathologists (Chen, Halliday, Case, and deSA)
Justice Gauthier
Finally, you may want to ascertain how many such unsustainable pediatric death cases Dr Cairns and Smith have pursued in the last ten years.
There needs to be accountability - if not for the pain and suffering caused by these witch- hunts, at least for the hundreds of thousands of dollars that this reckless crusade is costing the taxpayers. Add to that the legal aid funds used by other defendants, including Louise Reynolds in Kingston, and I would venture that total public costs are now in the millions.
You may be interested to know that the airing of the fifth estate prompted calls from other "victims", with similar stories of wrongful persecution. Ours is, by no means, an isolated case.
I fear that the "system", which has failed this family (and others) so miserably, has been perverted. You have the opportunity to restore the tarnished credibility of the Chief Coroner's Office, and ensure that citizens are treated fairly and justly.
Your Administration continues to advocate "accountability". I will trust that this commitment is equally applied to the public sector.
Sincerely,
Maurice O. Gagnon
Next post: Maurice Gagnon's complaint against Dr. Cairns; (First part)
Harold Levy...hlevy15@gmail.com;
Thursday, October 23, 2008
BREAKING NEWS: ONTARIO TABLES RESPONSE TO GOUDGE REPORT;
Earlier today the Ontario Government has introduced a bill aimed at fixing the province's badly broke Coroner's system in response to recommendations in the Goudge Report and public anger over the harm to innocent individuals and their families and Ontario's criminal justice system by Dr. Charles Smith.
There will be opportunities for providing content and comment on the proposals spearheaded by Community Safety Minister Rock Bartolucci in the coming days.
For now, however, here is the initial government release: (Readers' comments are most welcome);
"Ontario's death investigation system would be stronger, more accountable and provide for greater oversight and transparency under proposed legislation
introduced by Community Safety and Correctional Services Minister Rick Bartolucci today.
Highlights of the bill include a new oversight council, complaints committee and a provincial forensic pathology service.
The proposed legislation addresses all the recommended legislative amendments in the report of the Honourable Justice Stephen Goudge's Inquiry into Pediatric Forensic Pathology in Ontario.
This includes amendments to the Coroners Act that would establish a framework to strengthen the death investigation system in Ontario.
The new death investigation oversight council, made up of experts from the medical, legal and government communities, would oversee the work of the chief coroner and chief forensic pathologist to ensure the quality of the system.
The Ontario Forensic Pathology Service recognizes the complex and important role forensic pathology plays in death investigations.
The new service will centralize forensic pathology under the chief forensic pathologist, ensuring consistent, high-quality standards for forensic pathology across the province.
Other key provisions of the legislation include:
0: A registry of pathologists approved to conduct autopsies in Ontario
0: An improved complaints system overseen by the oversight council
0: Improved services to northern, First Nations and remote communities.
QUOTES:
"Commissioner Goudge gave us the roadmap to a stronger more accountable death investigation system. This legislation takes us a long way down that road. If passed, it would ensure we have the checks and balances in place to prevent a similar tragedy in the future," said Community Safety and Correctional Services Minister Rick Bartolucci;
"This legislation would provide us the framework we need to truly revitalize the system, and to help us build on the work we've already done to earn back the trust of the people of Ontario," said Ontario's Chief Coroner Dr. Andrew McCallum;
"By recognizing the importance of a professional forensic pathology service, this legislation would help us to take the next step towards delivering the consistent high quality service the people of Ontario deserve," said Ontario's Chief Forensic Pathologist Dr. Michael Pollanen.
QUICK FACTS
0: Ontario's coroners investigate approximately 20,000 deaths every year.
0: Approximately 7,000 of those investigations require a post-mortem
examination by a pathologist.
O: The Coroners Act has not been significantly updated since the 1970s.
BACKGROUNDER: STRENGTHENING ONTARIO'S DEATH INVESTIGATION SYSTEM;
Proposed new legislation would, if passed, amend the Coroners Act to improve oversight, accountability and quality assurance within Ontario's death investigation system. The proposed changes respond to recommendations made by the Honourable Justice Stephen Goudge following his Inquiry into Pediatric Forensic Pathology in Ontario.
Key changes under the new legislation would include:
ESTABLISHING EFFECTIVE OVERSIGHT:
Proposed changes in the legislation would make it easier for the public to understand how the death investigation system works and would make the system itself more accessible, transparent and accountable.
A new death investigation oversight council would be created to oversee the work of the chief coroner and the chief forensic pathologist.
This is in response to Commissioner Goudge's recommendations that an independent
oversight mechanism be established to oversee Ontario's death investigation system.
The council will ensure that the chief coroner and chief forensic pathologist are held accountable for the quality of death investigations in Ontario.
Ontario's Lieutenant Governor would appoint members of the oversight council which would include representatives from the judicial, medical, and government communities and as such would bring specialized expertise to advise and oversee the chief coroner and chief forensic pathologist.
STRENGTHENING THE COMPLAINTS PROCESS:
A new complaints committee would be established that would report to the oversight council.
The committee would track complaints made about the handling of a particular death investigation or about the conduct of a coroner or pathologist during an investigation.
In general terms, complaints concerning the medical roles of coroners and
pathologists would be directed to the College of Physicians and Surgeons, while complaints related to the non-medical roles of coroners and pathologists (e.g., providing evidence in criminal proceedings) would be directed to the chief coroner and chief forensic pathologist respectively.
The committee would ensure the chief coroner and chief forensic pathologist respond to complaints quickly and thoroughly. If a complainant is not satisfied with the response provided by the chief coroner or the chief forensic pathologist, the complaints committee has the authority to review the complaint. The committee would also review any complaints against the chief coroner and the chief forensic pathologist.
ENSURING HIGH-QUALITY FORENSIC PATHOLOGY SERVICES
In his report, Commissioner Goudge identified the vital role that forensic pathology plays in Ontario's death investigation system. He made several recommendations directed at improving the oversight of forensic pathologists, defining their roles and ensuring quality within the system. These recommendations are addressed in the proposed legislation.
Roles and Responsibilities
The chief forensic pathologist would be established in law as the head of forensic pathology in the province. This would allow him or her to ensure the quality and consistency of services being provided by forensic pathologists across the province. Currently the chief forensic pathologist does not have this legislated responsibility.
Forensic Pathology Service
A new Forensic Pathology Service would be created reporting to the chief forensic pathologist. The new service would bring all of the province's forensic pathology services under one umbrella to ensure consistency, accountability and oversight. Currently, the province's forensic pathology services are decentralized and run by regional forensic pathology units and other hospital facilities where autopsies are performed.
Registry of Pathologists
A registry of pathologists authorized to perform post-mortem examinations would be created and maintained by the chief forensic pathologist. This would ensure that all pathologists providing services in Ontario are appropriately qualified and experienced and have met the strict quality requirement set out by the chief forensic pathologist.
MAKING ONTARIO SAFER
The chief coroner has a responsibility to protect public safety, and needs to be given the clear authority to share information for this purpose. Providing the chief coroner with authority to decide when it is appropriate to share information to advance public safety will help coroners to protect the Public by preventing similar deaths. In such cases, the coroner would make every effort to protect privacy by withholding identifying information where possible.
The current legislation allows the coroner to release the results of death investigations only to family members of the deceased, but does not allow the coroner to release the results to other groups or to the public.
In some cases, the coroner has a need to share information when not doing so would put the public at significant risk. For example, if widely used medical equipment were faulty and caused a death, the public would need to be informed.
ENSURING AN INDEPENDENT DEATH INVESTIGATION SYSTEM
The intent of the proposed legislation is to build a stronger death
investigation system based on the principles of professionalism and accountability. Under such a system, it is the Office of the Chief Coroner who has the expertise and experience needed to determine if an inquest should be held. Decisions on inquests can undergo three levels of review within the Office of the Chief Coroner: local investigating coroner; regional supervising coroner; and the chief coroner.
If the minister made a decision contrary to the chief coroner's, it would be inconsistent with the arm's-length relationship between the Office of the Chief Coroner and government. For this reason, the proposed legislation would remove the power of the Minister of Community Safety and Correctional Services to call an inquest.
The chief coroner's decision regarding an inquest could still be the subject of judicial review, if there was a desire to appeal his or her ruling. Under this proposed change, by removing any potential for political intervention, the final decision is based on science.
FOCUSING RESOURCES ON PUBLIC SAFETY
All deaths of adult inmates in correctional institutions are, and will continue to be, thoroughly investigated by a coroner who is able to make recommendations to prevent similar deaths. Currently, a coroner must hold an inquest into all such deaths. Where the initial investigation determines that a death in custody was by natural causes, the resulting inquest rarely provides meaningful recommendations to improve public or inmate safety.
Under the new legislation, a death by natural causes in an adult correctional facility would no longer be the subject of a mandatory inquest. A coroner would still be able to call an inquest in such cases if he or she believes an inquest will lead to improvements in public safety. This change would allow coroners to focus on those complex cases where an inquest could result in meaningful recommendations to make Ontario safer.
IMPROVING SERVICES TO NORTHERN, FIRST NATIONS AND REMOTE COMMUNITIES
All Ontarians deserve high-quality services and that includes death Investigations. In his report, Commissioner Goudge recognized that delivering this service is challenging in some areas of the province. The current shortage of doctors in northern, First Nations, and remote communities results in long response times in the event of a death and sometimes coroners are unable to attend a death scene at all.
As recommended by Commissioner Goudge, the new legislation would provide for the appointment of individuals other than medical doctors or police officers to perform coroner's duties. If passed, this amendment will give coroners the flexibility to meet local needs and improve service to northern and remote communities. However, the final decision as to whether or not an inquest is required would continue to rest with the Office of the Chief Coroner.
DEFINING THE PURPOSE OF DEATH INVESTIGATIONS
It is not always clear to the public what the purpose of a death investigation is and this can cause confusion while the investigation is underway. The proposed new legislation would establish in law for the first time the reasons why a death investigation is undertaken.
Each investigation sets out to answer five basic questions about a death:
0: Who died?
0: How did they die?
0: When did they die?
0: Where did they die?
0: By what means did they die?
The results of an investigation are used to determine whether recommendations are needed to prevent similar deaths or whether the death requires the additional public scrutiny of an inquest.
An inquest is a public hearing held under the authority of the Coroners Act for the purpose of presenting evidence to a jury of five members of the community in which a person died. After hearing the evidence and other matters relevant to the circumstances of the death, the jury must answer the above five questions. They also may make recommendations based on evidence heard that if implemented, might avoid deaths in similar circumstances.
Harold Levy...hlevy@gmail.com;
There will be opportunities for providing content and comment on the proposals spearheaded by Community Safety Minister Rock Bartolucci in the coming days.
For now, however, here is the initial government release: (Readers' comments are most welcome);
"Ontario's death investigation system would be stronger, more accountable and provide for greater oversight and transparency under proposed legislation
introduced by Community Safety and Correctional Services Minister Rick Bartolucci today.
Highlights of the bill include a new oversight council, complaints committee and a provincial forensic pathology service.
The proposed legislation addresses all the recommended legislative amendments in the report of the Honourable Justice Stephen Goudge's Inquiry into Pediatric Forensic Pathology in Ontario.
This includes amendments to the Coroners Act that would establish a framework to strengthen the death investigation system in Ontario.
The new death investigation oversight council, made up of experts from the medical, legal and government communities, would oversee the work of the chief coroner and chief forensic pathologist to ensure the quality of the system.
The Ontario Forensic Pathology Service recognizes the complex and important role forensic pathology plays in death investigations.
The new service will centralize forensic pathology under the chief forensic pathologist, ensuring consistent, high-quality standards for forensic pathology across the province.
Other key provisions of the legislation include:
0: A registry of pathologists approved to conduct autopsies in Ontario
0: An improved complaints system overseen by the oversight council
0: Improved services to northern, First Nations and remote communities.
QUOTES:
"Commissioner Goudge gave us the roadmap to a stronger more accountable death investigation system. This legislation takes us a long way down that road. If passed, it would ensure we have the checks and balances in place to prevent a similar tragedy in the future," said Community Safety and Correctional Services Minister Rick Bartolucci;
"This legislation would provide us the framework we need to truly revitalize the system, and to help us build on the work we've already done to earn back the trust of the people of Ontario," said Ontario's Chief Coroner Dr. Andrew McCallum;
"By recognizing the importance of a professional forensic pathology service, this legislation would help us to take the next step towards delivering the consistent high quality service the people of Ontario deserve," said Ontario's Chief Forensic Pathologist Dr. Michael Pollanen.
QUICK FACTS
0: Ontario's coroners investigate approximately 20,000 deaths every year.
0: Approximately 7,000 of those investigations require a post-mortem
examination by a pathologist.
O: The Coroners Act has not been significantly updated since the 1970s.
BACKGROUNDER: STRENGTHENING ONTARIO'S DEATH INVESTIGATION SYSTEM;
Proposed new legislation would, if passed, amend the Coroners Act to improve oversight, accountability and quality assurance within Ontario's death investigation system. The proposed changes respond to recommendations made by the Honourable Justice Stephen Goudge following his Inquiry into Pediatric Forensic Pathology in Ontario.
Key changes under the new legislation would include:
ESTABLISHING EFFECTIVE OVERSIGHT:
Proposed changes in the legislation would make it easier for the public to understand how the death investigation system works and would make the system itself more accessible, transparent and accountable.
A new death investigation oversight council would be created to oversee the work of the chief coroner and the chief forensic pathologist.
This is in response to Commissioner Goudge's recommendations that an independent
oversight mechanism be established to oversee Ontario's death investigation system.
The council will ensure that the chief coroner and chief forensic pathologist are held accountable for the quality of death investigations in Ontario.
Ontario's Lieutenant Governor would appoint members of the oversight council which would include representatives from the judicial, medical, and government communities and as such would bring specialized expertise to advise and oversee the chief coroner and chief forensic pathologist.
STRENGTHENING THE COMPLAINTS PROCESS:
A new complaints committee would be established that would report to the oversight council.
The committee would track complaints made about the handling of a particular death investigation or about the conduct of a coroner or pathologist during an investigation.
In general terms, complaints concerning the medical roles of coroners and
pathologists would be directed to the College of Physicians and Surgeons, while complaints related to the non-medical roles of coroners and pathologists (e.g., providing evidence in criminal proceedings) would be directed to the chief coroner and chief forensic pathologist respectively.
The committee would ensure the chief coroner and chief forensic pathologist respond to complaints quickly and thoroughly. If a complainant is not satisfied with the response provided by the chief coroner or the chief forensic pathologist, the complaints committee has the authority to review the complaint. The committee would also review any complaints against the chief coroner and the chief forensic pathologist.
ENSURING HIGH-QUALITY FORENSIC PATHOLOGY SERVICES
In his report, Commissioner Goudge identified the vital role that forensic pathology plays in Ontario's death investigation system. He made several recommendations directed at improving the oversight of forensic pathologists, defining their roles and ensuring quality within the system. These recommendations are addressed in the proposed legislation.
Roles and Responsibilities
The chief forensic pathologist would be established in law as the head of forensic pathology in the province. This would allow him or her to ensure the quality and consistency of services being provided by forensic pathologists across the province. Currently the chief forensic pathologist does not have this legislated responsibility.
Forensic Pathology Service
A new Forensic Pathology Service would be created reporting to the chief forensic pathologist. The new service would bring all of the province's forensic pathology services under one umbrella to ensure consistency, accountability and oversight. Currently, the province's forensic pathology services are decentralized and run by regional forensic pathology units and other hospital facilities where autopsies are performed.
Registry of Pathologists
A registry of pathologists authorized to perform post-mortem examinations would be created and maintained by the chief forensic pathologist. This would ensure that all pathologists providing services in Ontario are appropriately qualified and experienced and have met the strict quality requirement set out by the chief forensic pathologist.
MAKING ONTARIO SAFER
The chief coroner has a responsibility to protect public safety, and needs to be given the clear authority to share information for this purpose. Providing the chief coroner with authority to decide when it is appropriate to share information to advance public safety will help coroners to protect the Public by preventing similar deaths. In such cases, the coroner would make every effort to protect privacy by withholding identifying information where possible.
The current legislation allows the coroner to release the results of death investigations only to family members of the deceased, but does not allow the coroner to release the results to other groups or to the public.
In some cases, the coroner has a need to share information when not doing so would put the public at significant risk. For example, if widely used medical equipment were faulty and caused a death, the public would need to be informed.
ENSURING AN INDEPENDENT DEATH INVESTIGATION SYSTEM
The intent of the proposed legislation is to build a stronger death
investigation system based on the principles of professionalism and accountability. Under such a system, it is the Office of the Chief Coroner who has the expertise and experience needed to determine if an inquest should be held. Decisions on inquests can undergo three levels of review within the Office of the Chief Coroner: local investigating coroner; regional supervising coroner; and the chief coroner.
If the minister made a decision contrary to the chief coroner's, it would be inconsistent with the arm's-length relationship between the Office of the Chief Coroner and government. For this reason, the proposed legislation would remove the power of the Minister of Community Safety and Correctional Services to call an inquest.
The chief coroner's decision regarding an inquest could still be the subject of judicial review, if there was a desire to appeal his or her ruling. Under this proposed change, by removing any potential for political intervention, the final decision is based on science.
FOCUSING RESOURCES ON PUBLIC SAFETY
All deaths of adult inmates in correctional institutions are, and will continue to be, thoroughly investigated by a coroner who is able to make recommendations to prevent similar deaths. Currently, a coroner must hold an inquest into all such deaths. Where the initial investigation determines that a death in custody was by natural causes, the resulting inquest rarely provides meaningful recommendations to improve public or inmate safety.
Under the new legislation, a death by natural causes in an adult correctional facility would no longer be the subject of a mandatory inquest. A coroner would still be able to call an inquest in such cases if he or she believes an inquest will lead to improvements in public safety. This change would allow coroners to focus on those complex cases where an inquest could result in meaningful recommendations to make Ontario safer.
IMPROVING SERVICES TO NORTHERN, FIRST NATIONS AND REMOTE COMMUNITIES
All Ontarians deserve high-quality services and that includes death Investigations. In his report, Commissioner Goudge recognized that delivering this service is challenging in some areas of the province. The current shortage of doctors in northern, First Nations, and remote communities results in long response times in the event of a death and sometimes coroners are unable to attend a death scene at all.
As recommended by Commissioner Goudge, the new legislation would provide for the appointment of individuals other than medical doctors or police officers to perform coroner's duties. If passed, this amendment will give coroners the flexibility to meet local needs and improve service to northern and remote communities. However, the final decision as to whether or not an inquest is required would continue to rest with the Office of the Chief Coroner.
DEFINING THE PURPOSE OF DEATH INVESTIGATIONS
It is not always clear to the public what the purpose of a death investigation is and this can cause confusion while the investigation is underway. The proposed new legislation would establish in law for the first time the reasons why a death investigation is undertaken.
Each investigation sets out to answer five basic questions about a death:
0: Who died?
0: How did they die?
0: When did they die?
0: Where did they die?
0: By what means did they die?
The results of an investigation are used to determine whether recommendations are needed to prevent similar deaths or whether the death requires the additional public scrutiny of an inquest.
An inquest is a public hearing held under the authority of the Coroners Act for the purpose of presenting evidence to a jury of five members of the community in which a person died. After hearing the evidence and other matters relevant to the circumstances of the death, the jury must answer the above five questions. They also may make recommendations based on evidence heard that if implemented, might avoid deaths in similar circumstances.
Harold Levy...hlevy@gmail.com;
JUSTICE GOUDGE'S FINDINGS: PART TWO: NICHOLAS' CASE; (1) SMITH;
Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.
Nicholas was the child of Lianne Gagnon and Steven Tolin.
Nicholas died on November 30, 1995, in Sudbury.
Nicholas was 11 months old at the time of his death.
Criminal proceedings were not initiated.
The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.
The proceedings concluded on March 25, 1999 when the society withdrew the protection application;
------------------------------------------------------------------------------
Maurice Gagnon, Nicholas's grand-father, launched a barrage of complaints against Dr. Smith and Dr. Cairns to the Ontario government, the Chief Coroner's Office, the College of Physicians and Surgeons of Ontario (the College) and even the province's Ombudsman.
The common thread was that Smith was guilty of professional misconduct, that the Chief Coroner's Office lacked accountability, that former Deputy Chief Coroner, Dr. Jim Cairns, was unduly influenced by Smith's opinion, and that Cairn's judgment had been clouded by his quest to eradicate child abuse.
Justice Goudge agreed with many of Gagnon's complaints.
"Mr. Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the (Chief Coroner's Office) were legitimate," he ruled. "Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."
Maurice Gagnon's complaints - laced with specific criticisms of Dr. Smith's work on the case - resonated with Justice Goudge, who faulted Smith as follows, for:
0: Continuing to insist that Nicholas had not died of natural causes but from cerebral edema, consistent with a blunt force injury to the head, in spite of key findings which underpinned his diagnosis.
0: Misrepresenting a radiologist's findings in an affidavit prepared for a family court hearing; The "mild diastasis" noted by the radiologist, became "marked widening of the skull sutures" as communicated by Charles Smith;
0: Providing a baseless opinion in the case - subsequently disproved by one independent expert who concluded that Smith's opinion was unsubstantiated and baseless - and another who testified that Smith's conclusion about Nicholas's death went "far beyond the boundaries that can be supported by the presenting scientific and forensic facts."
Justice Goudge was also disturbed by Dr. Smith's response to the complaints made against him, saying: "Dr. Smith's reaction to the complaints made against him was no better (than the complaint in Amber's case); As with the complaint in Amber's case, he responded by denying that he had done anything wrong."
"He responded not only by emphasizing the reasons for his opinion, but by telling the College that he had never received some of the relevant materials from the coroner or police (though he had), and by claiming that he was not involved in any way with the Children's Aid Society (although clearly he was);"
Other findings:
Misinterpreting artefact's:
At the second post-mortem examination, Smith found "some discolouration in the skull over the right parietal bone and along the soutures, which he suggested was consistent with blunt force injury; He concluded that the cause of death was cerebral edema, consistent with blunt force injury.
The expert reviewers who reviewed Nicholas case reported that: "The discolouration was post-mortem - a common finding visible whenever a body a body has been buried and subsequently exhumed. "It was an artifact of no significance and did not indicate the presence of injury";
Justuce Goudge says this misdiagnosis exemplifies "the risks if inadequate forensic pathology training."
Use of default diagnosis;
Goudge says that in Nicholas' case, Smith "concluded that his post-mortem findings were the result of non-accidental injury because there was no explanation of accidental injury that he regarded as credible...This is the default diagnosis approach..."It makes non-accidental injury the pathologist's default position and puts the onus on others to exclude it."
Specifically: Smith wrote a consultation report, "finding that Nicholas had cerebral edema, an increased head circumference, splitting skull sutures, a fracture to the left side of his mandible, and a scalp injury. He concluded: "In the absence of a reasonable explanation, the death of this boy is attributed to blunt head injury."...Goudge says he should have taken an evidence-based approach: begin from position of objectivity, have an open mind and consider all the possibilities before arriving at a conclusion."
Failure to record alleged consultations with other experts:
An issue arose whether in fact he had in fact obtained an opinion from Dr. Venita Jay, a neuropathologist, as he claimed.
Dr. Jay had no specific recollection of this alleged opinion - or of any opinion she offered.
Dr. Smith first mentioned that he had obtained this opinion after a pathologist retained by Nicholas's mother and grandfather alleged that Smith should have consulted with a neuropathologist but failed to do so!
Misrepresentations:
Justice Goudge found that Smith made "false and misleading statements" to the College - which was investigating a complaint about his conduct in Nicholas's case---adding that his misrepresentations frustrated any meaningful over sight that the two institutions might have offered."
More specifically, Justice Goudge took issue with Smith's response to Maurice Gagnon's allegation that he had failed to investigate Nicholas's previous medical records, including his head circumference in life.
Smith replied to the College that he had not been provided with these measurements;
"The statement was wrong," said Goudge. "The lead investigating officer, Sergeant Keetch, gave Dr. Smith those very records during a meeting in May 1997";
Harold Levy...hlevy15@gmail.com;
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
------------------------------------------------------------------------------
An overview report prepared by Commission staff tells us that Nicholas was born in Sudbury, Ontario on January 2, 1995.
Nicholas was the child of Lianne Gagnon and Steven Tolin.
Nicholas died on November 30, 1995, in Sudbury.
Nicholas was 11 months old at the time of his death.
Criminal proceedings were not initiated.
The local children's aid society initiated proceedings in respect of Ms. Gagnon's second child, born in 1968.
The proceedings concluded on March 25, 1999 when the society withdrew the protection application;
------------------------------------------------------------------------------
Maurice Gagnon, Nicholas's grand-father, launched a barrage of complaints against Dr. Smith and Dr. Cairns to the Ontario government, the Chief Coroner's Office, the College of Physicians and Surgeons of Ontario (the College) and even the province's Ombudsman.
The common thread was that Smith was guilty of professional misconduct, that the Chief Coroner's Office lacked accountability, that former Deputy Chief Coroner, Dr. Jim Cairns, was unduly influenced by Smith's opinion, and that Cairn's judgment had been clouded by his quest to eradicate child abuse.
Justice Goudge agreed with many of Gagnon's complaints.
"Mr. Gagnon was persistent. His letters were well researched and well reasoned. Given what is now known, many of his concerns about Dr. Smith, Dr. Cairns and the (Chief Coroner's Office) were legitimate," he ruled. "Unfortunately, those in the senior positions at the Chief Coroner's Office did not listen."
Maurice Gagnon's complaints - laced with specific criticisms of Dr. Smith's work on the case - resonated with Justice Goudge, who faulted Smith as follows, for:
0: Continuing to insist that Nicholas had not died of natural causes but from cerebral edema, consistent with a blunt force injury to the head, in spite of key findings which underpinned his diagnosis.
0: Misrepresenting a radiologist's findings in an affidavit prepared for a family court hearing; The "mild diastasis" noted by the radiologist, became "marked widening of the skull sutures" as communicated by Charles Smith;
0: Providing a baseless opinion in the case - subsequently disproved by one independent expert who concluded that Smith's opinion was unsubstantiated and baseless - and another who testified that Smith's conclusion about Nicholas's death went "far beyond the boundaries that can be supported by the presenting scientific and forensic facts."
Justice Goudge was also disturbed by Dr. Smith's response to the complaints made against him, saying: "Dr. Smith's reaction to the complaints made against him was no better (than the complaint in Amber's case); As with the complaint in Amber's case, he responded by denying that he had done anything wrong."
"He responded not only by emphasizing the reasons for his opinion, but by telling the College that he had never received some of the relevant materials from the coroner or police (though he had), and by claiming that he was not involved in any way with the Children's Aid Society (although clearly he was);"
Other findings:
Misinterpreting artefact's:
At the second post-mortem examination, Smith found "some discolouration in the skull over the right parietal bone and along the soutures, which he suggested was consistent with blunt force injury; He concluded that the cause of death was cerebral edema, consistent with blunt force injury.
The expert reviewers who reviewed Nicholas case reported that: "The discolouration was post-mortem - a common finding visible whenever a body a body has been buried and subsequently exhumed. "It was an artifact of no significance and did not indicate the presence of injury";
Justuce Goudge says this misdiagnosis exemplifies "the risks if inadequate forensic pathology training."
Use of default diagnosis;
Goudge says that in Nicholas' case, Smith "concluded that his post-mortem findings were the result of non-accidental injury because there was no explanation of accidental injury that he regarded as credible...This is the default diagnosis approach..."It makes non-accidental injury the pathologist's default position and puts the onus on others to exclude it."
Specifically: Smith wrote a consultation report, "finding that Nicholas had cerebral edema, an increased head circumference, splitting skull sutures, a fracture to the left side of his mandible, and a scalp injury. He concluded: "In the absence of a reasonable explanation, the death of this boy is attributed to blunt head injury."...Goudge says he should have taken an evidence-based approach: begin from position of objectivity, have an open mind and consider all the possibilities before arriving at a conclusion."
Failure to record alleged consultations with other experts:
An issue arose whether in fact he had in fact obtained an opinion from Dr. Venita Jay, a neuropathologist, as he claimed.
Dr. Jay had no specific recollection of this alleged opinion - or of any opinion she offered.
Dr. Smith first mentioned that he had obtained this opinion after a pathologist retained by Nicholas's mother and grandfather alleged that Smith should have consulted with a neuropathologist but failed to do so!
Misrepresentations:
Justice Goudge found that Smith made "false and misleading statements" to the College - which was investigating a complaint about his conduct in Nicholas's case---adding that his misrepresentations frustrated any meaningful over sight that the two institutions might have offered."
More specifically, Justice Goudge took issue with Smith's response to Maurice Gagnon's allegation that he had failed to investigate Nicholas's previous medical records, including his head circumference in life.
Smith replied to the College that he had not been provided with these measurements;
"The statement was wrong," said Goudge. "The lead investigating officer, Sergeant Keetch, gave Dr. Smith those very records during a meeting in May 1997";
Harold Levy...hlevy15@gmail.com;
Wednesday, October 22, 2008
JUSTICE GOUDGE'S FINDINGS: PART ONE: AMBER'S CASE; (3); THE COLLEGE;
-
Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
------------------------------------------------------------------------------
As set out in an overview report prepared by Commission staff:
Amber was born in Timmins, Ontario on March 13, 1987. Amber was the child of Frances and Richard. Amber died on July 30, 1988, at the age of 16 months at the Hospital for Sick Children in Toronto.
Criminal proceedings were initiated against Amber's 12 year-old babysitter SM. SM was charged with manslaughter on December 15, 1988. Her trial commenced on October 15, 1989. There were 30 hearing days over the next 13 months, and the trial concluded on November 6, 1990.
On July 25, 1991, Justice Patrick Dunn acquitted S.M.
-------------------------------------------------------------------------------
Justice Goudge found that the College of Physicians and Surgeons of Ontario (the College) should have conducted a further investigation - instead of merely accepting Dr. Smith's word that Judge Dunn confided to him that SM was guilty throughout the manslaughter trial.
More particularly, Goudge notes that the College had to be forced by a review body to exercise jurisdiction over Dr. Smith in connection with a complaint launched against him, saying he agreed that, "Dr. Smith was engaged in the practice of medicine when he performed his post-mortem examination and that the College should have taken jurisdiction of the complaints made against him."
"The decision to decline jurisdiction of DM's complaint (SM's father) was a missed opportunity for the College to deal with the complaints alleged against Dr. Smith by 1998."
(From my reading of the evidence called at the Goudge Inquiry, College investigators did their best to conduct a thorough investigation of Smith in response to the complaints against him - but were thwarted by Smith and impeded by their superiors.)
Harold Levy...hlevy15@gmail.com;
Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
------------------------------------------------------------------------------
As set out in an overview report prepared by Commission staff:
Amber was born in Timmins, Ontario on March 13, 1987. Amber was the child of Frances and Richard. Amber died on July 30, 1988, at the age of 16 months at the Hospital for Sick Children in Toronto.
Criminal proceedings were initiated against Amber's 12 year-old babysitter SM. SM was charged with manslaughter on December 15, 1988. Her trial commenced on October 15, 1989. There were 30 hearing days over the next 13 months, and the trial concluded on November 6, 1990.
On July 25, 1991, Justice Patrick Dunn acquitted S.M.
-------------------------------------------------------------------------------
Justice Goudge found that the College of Physicians and Surgeons of Ontario (the College) should have conducted a further investigation - instead of merely accepting Dr. Smith's word that Judge Dunn confided to him that SM was guilty throughout the manslaughter trial.
More particularly, Goudge notes that the College had to be forced by a review body to exercise jurisdiction over Dr. Smith in connection with a complaint launched against him, saying he agreed that, "Dr. Smith was engaged in the practice of medicine when he performed his post-mortem examination and that the College should have taken jurisdiction of the complaints made against him."
"The decision to decline jurisdiction of DM's complaint (SM's father) was a missed opportunity for the College to deal with the complaints alleged against Dr. Smith by 1998."
(From my reading of the evidence called at the Goudge Inquiry, College investigators did their best to conduct a thorough investigation of Smith in response to the complaints against him - but were thwarted by Smith and impeded by their superiors.)
Harold Levy...hlevy15@gmail.com;
Tuesday, October 21, 2008
JUSTICE GOUDGE'S FINDINGS: PART ONE; AMBER'S CASE; (2); YOUNG AND CAIRNS;
Over the past eighteen months I have used this Blog to intensively report on developments relating to Dr. Charles Smith culminating with the recently concluded Goudge Inquiry.
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
-------------------------------------------------------------------------------
As set out in an overview report prepared by Commission staff:
Amber was born in Timmins, Ontario on March 13, 1987. Amber was the child of Frances and Richard. Amber died on July 30, 1988, at the age of 16 months at the Hospital for Sick Children in Toronto.
Criminal proceedings were initiated against Amber's 12 year-old babysitter SM. SM was charged with manslaughter on December 15, 1988. Her trial commenced on October 15, 1989. There were 30 hearing days over the next 13 months, and the trial concluded on November 6, 1990.
On July 25, 1991, Justice Patrick Dunn acquitted S.M.
-------------------------------------------------------------------------------
Justice Goudge notes that although former Chief Coroner Dr. James Young, and then Deputy Chief Coroner, Dr. Jim Cairns, ultimately learned that the 12-year-old babysitter SM had been acquitted on the charge of manslaughter in connection with Amber's death, "the Chief Coroner's Office failed to pursue the matter beyond informal discussions with Dr. Smith."
Goudge makes clear that Smith "actively thwarted" any accountability with a lie that Dunn had repeatedly told him during the trial that he believed SM was guilty.
However, Goudge points out that neither Young nor Cairns investigated Smith's claims and that, "In fact, when Dr. Young and Dr. Cairns learned of SM's acquittal, neither of them read Justice Dunn's decision to inform themselves of the trial judge's criticisms."
This refusal to exercise supervision over Smith led to consequences because, "Justice Dunn's decision raised a danger signal about Dr. Smith's competence and professionalism. Unfortunately that signal was ignored and any opportunity for re-evaluation of Dr. Smith's work was lost."
Justice Goudge also found that, in spite of Young's denial that an investigator from the College of Physicians and Surgeons had brought Dunn's scathing criticisms to his attention, "I find that, although Ms. Mann told Dr. Young about the trial of SM and specifically that Justice Dunn's judgement was highly critical of Dr. Smith, Dr. Young did not really appreciate the significance of what she told him."
"Because he did not approach the meeting with the openness and objectivity one expects of an overseer, it did not change his mind about the importance of the judgment," Goudge ruled. "Another opportunity to address the concerns identified by the judge was lost."
Goudge faults Cairns for his comment on the Fifth Estate documentary aired on Nov. 10, 1999, in which he says, "I, with due respect, feel that the medical evidence was confusing and that the judge may not have clearly understood all the evidence that was being given."
"When he gave the interview, Dr. Cairns had not even read Justice Dunn's full reasons for judgment or the court judgement," Goudge found..."He was not in a position to comment independently and objectively on the decision and he ought not to have criticized Justice Dunn's decision based solely on Dr. Smith's opinion."
Similarly he faults Young, who maintained that he had been away when the episode ran, for concluding that he had no reason to watch it, saying, "He owed it to his office to take the program more seriously."
Goudge notes that although Young testified that he had not seen the program, he provided Smith with government funds to help Smith's libel suit against the Fifth Estate and the CBC.
Goudge also cites Young in connection with his response to a letter from two concerned parents who had been affected by Dr. Smith's evidence and had read a highly critical article about Smith and the Chief Coroner's Office called "Dead Wrong" that had been published in Maclean's magazine.
Goudge says Young commented that, in his view, the Maclean's article was "dead wrong", in that it was full of inaccurate assumptions and statements, and that it was currently the subject of a lawsuit.
"He did so, apparently. without even having read the entire article" Goudge said.
In this Blogster's view, the Goudge report established that the Maclean's article, by reporter Jane O'Hara, was "dead right" - as was the CBC's Fifth Estate documentary - and both had been the subject of a libel suit launched by Dr. Smith.
Harold Levy...hlevy15@gmail.com
I am now winding up this phase of the Blog - to be replaced eventually by periodic reporting of developments relating to Dr. Smith and related issues as they occur - with an examination of Justice Goudge's findings in the cases reviewed by the Inquiry.
I think it is important to take this closer look at the report in this Blog, because the mainstream media, which has done an admirable job in reporting the inquiry, have gone on to other stories.
Justice Goudge's findings relating to the various cases have been scattered throughout the report.
My approach is to weave together the findings relating to all of the principal actors - so we can get a fuller picture of Justice Goudge's findings as to their conduct;
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As set out in an overview report prepared by Commission staff:
Amber was born in Timmins, Ontario on March 13, 1987. Amber was the child of Frances and Richard. Amber died on July 30, 1988, at the age of 16 months at the Hospital for Sick Children in Toronto.
Criminal proceedings were initiated against Amber's 12 year-old babysitter SM. SM was charged with manslaughter on December 15, 1988. Her trial commenced on October 15, 1989. There were 30 hearing days over the next 13 months, and the trial concluded on November 6, 1990.
On July 25, 1991, Justice Patrick Dunn acquitted S.M.
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Justice Goudge notes that although former Chief Coroner Dr. James Young, and then Deputy Chief Coroner, Dr. Jim Cairns, ultimately learned that the 12-year-old babysitter SM had been acquitted on the charge of manslaughter in connection with Amber's death, "the Chief Coroner's Office failed to pursue the matter beyond informal discussions with Dr. Smith."
Goudge makes clear that Smith "actively thwarted" any accountability with a lie that Dunn had repeatedly told him during the trial that he believed SM was guilty.
However, Goudge points out that neither Young nor Cairns investigated Smith's claims and that, "In fact, when Dr. Young and Dr. Cairns learned of SM's acquittal, neither of them read Justice Dunn's decision to inform themselves of the trial judge's criticisms."
This refusal to exercise supervision over Smith led to consequences because, "Justice Dunn's decision raised a danger signal about Dr. Smith's competence and professionalism. Unfortunately that signal was ignored and any opportunity for re-evaluation of Dr. Smith's work was lost."
Justice Goudge also found that, in spite of Young's denial that an investigator from the College of Physicians and Surgeons had brought Dunn's scathing criticisms to his attention, "I find that, although Ms. Mann told Dr. Young about the trial of SM and specifically that Justice Dunn's judgement was highly critical of Dr. Smith, Dr. Young did not really appreciate the significance of what she told him."
"Because he did not approach the meeting with the openness and objectivity one expects of an overseer, it did not change his mind about the importance of the judgment," Goudge ruled. "Another opportunity to address the concerns identified by the judge was lost."
Goudge faults Cairns for his comment on the Fifth Estate documentary aired on Nov. 10, 1999, in which he says, "I, with due respect, feel that the medical evidence was confusing and that the judge may not have clearly understood all the evidence that was being given."
"When he gave the interview, Dr. Cairns had not even read Justice Dunn's full reasons for judgment or the court judgement," Goudge found..."He was not in a position to comment independently and objectively on the decision and he ought not to have criticized Justice Dunn's decision based solely on Dr. Smith's opinion."
Similarly he faults Young, who maintained that he had been away when the episode ran, for concluding that he had no reason to watch it, saying, "He owed it to his office to take the program more seriously."
Goudge notes that although Young testified that he had not seen the program, he provided Smith with government funds to help Smith's libel suit against the Fifth Estate and the CBC.
Goudge also cites Young in connection with his response to a letter from two concerned parents who had been affected by Dr. Smith's evidence and had read a highly critical article about Smith and the Chief Coroner's Office called "Dead Wrong" that had been published in Maclean's magazine.
Goudge says Young commented that, in his view, the Maclean's article was "dead wrong", in that it was full of inaccurate assumptions and statements, and that it was currently the subject of a lawsuit.
"He did so, apparently. without even having read the entire article" Goudge said.
In this Blogster's view, the Goudge report established that the Maclean's article, by reporter Jane O'Hara, was "dead right" - as was the CBC's Fifth Estate documentary - and both had been the subject of a libel suit launched by Dr. Smith.
Harold Levy...hlevy15@gmail.com
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