This is part of the transcript for February 1st, 2008 in which Ms. Fraser cross examined Mr. Charles Smith on behalf of the Defence for Children International
COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. Falconer. Ms. Fraser...?
CROSS-EXAMINATION BY MS. SUZAN FRASER:
MS. SUZAN FRASER: Sir, my name is Suzan Fraser and I'm here on behalf of an organization called Defence for Children International.
DR. CHARLES SMITH: Good morning.
MS. SUZAN FRASER: Good morning. And, sir, you came here and you stated that you have come to appreciate your mistakes, that's correct?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: All right. And throughout your examination and your cross-examination you have identified a number of mistakes, those include
that you were dogmatic?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: You were an advocate?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: You were an advocate for the Crown?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: And you gave confusing testimony?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: And you were disorganised?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: You went beyond your expertise?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: You, at times, saw yourself as a member of the prosecution team?
DR. CHARLES SMITH: Early on I did, yes.
MS. SUZAN FRASER: Yes. And you were profoundly ignorant of forensic pathology?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: And your education was woefully inadequate?
DR. CHARLES SMITH: Those were my words.
MS. SUZAN FRASER: Yes, and they are true?
DR. CHARLES SMITH: I believe they are.
MS. SUZAN FRASER: All right. And it's fair to say that you have told the Commissioner that you've given evidence in other proceedings, both in inquests?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: All right. And those would include some, if not all, of the six (6) systemic inquests held into children's deaths in 1996 and 1997. Do you remember those?
DR. CHARLES SMITH: I -- I certainly was part of the group that worked in the preparation of them. I can't remember now which inquests I actually testified
at.
MS. SUZAN FRASER: All right. And you recall giving evidence at inquests into the death of children though.
DR. CHARLES SMITH: Oh, yes, yes.
MS. SUZAN FRASER: All right. And you also gave forensic pathology evidence or evidence in the nature of forensic pathology evidence in child protection proceedings or Family Court, as it's sometimes called.
DR. CHARLES SMITH: Yes, I have.
MS. SUZAN FRASER: All right. And your - you also worked with the Paediatric Death Review Committee and provided your expertise to that Committee, correct?
DR. CHARLES SMITH: I was a member of that Committee.
MS. SUZAN FRASER: All right. And it's fair to say that the reason that you were a member is because of what at the time was thought of your leading pediatric forensic pathology knowledge; fair?
DR. CHARLES SMITH: I think I've stated the reasons why I presumed that I was asked to be on the Committee.
MS. SUZAN FRASER: All right.
DR. CHARLES SMITH: Mm-hm.
MS. SUZAN FRASER: And it -- isn't it fair to say, sir, that the mistakes -- your mistakes that occurred in the criminal justice proceedings might also be found in those other proceedings, in your work in inquests and your work in the Family Court?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: All right. It doesn't -- it would illogical to say that they --
DR. CHARLES SMITH: That --
MS. SUZAN FRASER: -- would not have been repeated there?
DR. CHARLES SMITH: Yes. Yeah. No, I -- if I had made mistakes one place, I can certainly make them in another.
MS. SUZAN FRASER: All right. And you stated that you have come to appreciate your mistakes and have you come, sir, to appreciate the extent of the damage of your mistakes? Do you realize, sir, that children were taken from their parents as a result of your evidence?
DR. CHARLES SMITH: Yes, I've seen that.
MS. SUZAN FRASER: All right. And you're aware that some children, Joshua's brother, for one, was taken from his natural mother and adopted into another
family? You were aware of that, sir?
DR. CHARLES SMITH: I -- I don't know just how specific my knowledge of that was but I -- but it was my understanding that he -- he was taken away but I couldn't tell you what the decision on him was.
MS. SUZAN FRASER: All right. Sir, if you're interested in that information, --
DR. CHARLES SMITH: Mm-hm.
MS. SUZAN FRASER: -- you'll find it in the overview report on Joshua. I won't take you there now.
DR. CHARLES SMITH: Okay.
MS. SUZAN FRASER: Sir, and you're also aware that Sharon's sister, who was three (3) years old at the time of her death, was adopted, and that her mother felt she had no choice because her prospects to contest an application, because her prospects for being released were so remote? You're aware of that, sir?
DR. CHARLES SMITH: I -- I have some knowledge of that, yes.
MS. SUZAN FRASER: Right. And you would know that from the statement of claim filed against you, sir?
DR. CHARLES SMITH: I -- I couldn't tell you the source but I recognize that.
MS. SUZAN FRASER: All right. And, Commissioner, I won't take you there now, but for the record, that's found at PFP116230. We know that Jenna's sister was in the care of the Children's Aid Society for almost two (2) years; you're aware of that?
DR. CHARLES SMITH: I -- I have some knowledge. The specifics, I -- as your two (2) years, I'm --
MS. SUZAN FRASER: All right.
DR. CHARLES SMITH: -- I -- I can't remember. But, yes, I recognize that.
MS. SUZAN FRASER: These children are also deserving of an apology, are they not, Dr. Smith?
DR. CHARLES SMITH: Yes.
MS. SUZAN FRASER: All right. And can you assist, sir, can you assist with providing us information on how many times you might have either assisted with an investigation of a Children's Aid Society or prevented -- presented evidence in Court either by affidavit or viva voce evidence?
DR. CHARLES SMITH: How many times?
MS. SUZAN FRASER: How many times, sir?
DR. CHARLES SMITH: I would have to be case specific. I did in Kingston in the Paolo case or -- or the case that involved Paolo's brother.
MS. SUZAN FRASER: All right. Sir, I'm not -- I'm not --
DR. CHARLES SMITH: Okay. I -- I'm, yeah, I'm not trying to waste your time here. Yes.
MS. SUZAN FRASER: I'm -- I appreciate that, sir, but I want to --
DR. CHARLES SMITH: Yeah.
MS. SUZAN FRASER: -- just clarify the focus of my -- my --
DR. CHARLES SMITH: Okay.
MS. SUZAN FRASER: -- question. I think we have certain information about the cases before the Commissioner, --
DR. CHARLES SMITH: Oh, I see.
MS. SUZAN FRASER: -- the twenty (20) cases here.
DR. CHARLES SMITH: Okay.
MS. SUZAN FRASER: And what I'm interested in, sir, --
DR. CHARLES SMITH: Are --
MS. SUZAN FRASER: -- is that there would --
DR. CHARLES SMITH: -- beyond those. Yeah.
MS. SUZAN FRASER: Exactly. And you'll agree with me that there were times that you gave evidence where there -- in a -- in a child death where -- matter, where there was no underlying criminal proceeding? You're aware of that? You'd agree with me on that?
DR. CHARLES SMITH: Yes. I can think of maybe three (3) or four (4) instances, yes.
MS. SUZAN FRASER: All right. And so in the years that you provided forensic pathology services in the province of Ontario, can you give us a number as to how many children's lives you might have affected?
DR. CHARLES SMITH: In addition to the --
MS. SUZAN FRASER: Yes, sir.
DR. CHARLES SMITH: -- ones here?
MS. SUZAN FRASER: Yes, sir.
DR. CHARLES SMITH: The...I think it would be perhaps three (3) or four (4), but I could -- I could well stand corrected because -- oh, well actually those were, I shouldn't say children, those were the instances that I can think of where I was asked to present an autopsy or to give a second opinion on an
autopsy. Whether there was one (1) child or more than one (1) child is something that I -- I wouldn't necessarily know. But certainly families, I would say, I can think of three (3) or four (4).
MS. SUZAN FRASER: All right. And that would include, you mentioned the win's case, the twins who died in --
DR. CHARLES SMITH: That -- that --
MS. SUZAN FRASER: -- 1982?
DR. CHARLES SMITH: That would be one of them, yes.
MS. SUZAN FRASER: That man went on later, after maintaining his -- his innocence for many years, later went on to have another child? Another --
DR. CHARLES SMITH: That's my understanding.
MS. SUZAN FRASER: All right. And, Commissioner, you will find that in our documents, I won't turn it up, but it's one of the documents that's before you as part of the -- it's at Tab 1 and 2 of the Parties With Standing Overview, Volume I. Sir, and in terms of your bias, sir, sorry, just moving back. In -- in terms of those three (3) or four (4) cases, are -- going forward, sir, are you
prepared to help identify, should there be a need to examine those cases, are you prepared to help identify those cases so those children can perhaps one day be reacquainted with their natural parents?
DR. CHARLES SMITH: I -- if -- if there is a -- a reasonable and proper role for me to do that, yes. Yeah, I -- I would -- if I could help fix a wrong and it was appropriate to do that then, yes.
MS. SUZAN FRASER: Thank you, sir. And, sir, you have come here and talked about your close relationship being -- in the early days most certainly being part of the prosecution team, being invested in that role?
DR. CHARLES SMITH: In the 1980s, yes.
MS. SUZAN FRASER: All right. And is it fair to, sir -- say, sir, that -- that there are similar close working relationships in the Paediatric Death Review Committee and the Death Under Five Committees or the Death Under Two Committee, as it once were, in those committees you worked closely with police, CAS representatives, doctors, Crowns?
DR. CHARLES SMITH: Well, the -- the committee is made up of a number of experts who come along with different viewpoints and then individual cases are discussed --
MS. SUZAN FRASER: Yes?
DR. CHARLES SMITH: -- and ultimately a consensus or recommendations are -- are made by the committee.
MS. SUZAN FRASER: All right. So you're all working together. You're sort of working on the same side?
DR. CHARLES SMITH: Well, we are. In -- in the CAS cases those were ones where the -- apart --where the medical people were -- were usually quite silent --
MS. SUZAN FRASER: Yes.
DR. CHARLES SMITH: -- because they have no expertise or knowledge or may -- they may not have any insight, so, those were -- those would be the discussions and the decision making in those would be -- would -- would reflect the issues that are inherent in those --
MS. SUZAN FRASER: Yes?
DR. CHARLES SMITH: -- whereas if it was a complex medical case that did not involve CAS then, obviously, the discussions are going to go on in different -- on a different way but at the end of the day, Dr. Cairns' job as -- as Chair was to distill all of the information and then go forward with whatever --whatever an appropriate decision-making process reflected.
MS. SUZAN FRASER: Sir, and the -- the CAS cases, those would include where there's an open file, somebody's under the supervision of CAS' care and that might either be in the care of their parents or in another facility operated by the state like a group home or foster care?
DR. CHARLES SMITH: Yes, that's right.
MS. SUZAN FRASER: All right. And is it
COMMISSIONER STEPHEN GOUDGE: You're running out of time, Ms. Fraser.
MS. SUZAN FRASER: I'm -- I'm very close to finishing if I may, Mr. Commissioner?
COMMISSIONER STEPHEN GOUDGE: One (1) or two (2) more questions.
CONTINUED BY MS. SUZAN FRASER:
MS. SUZAN FRASER: Thank you. And one (1) of the things that you talked about in terms of working with the coroner's office was getting your ducks in a row. Was there a similar attitude in the PDRC?
DR. CHARLES SMITH: Never.
MS. SUZAN FRASER: Never?
DR. CHARLES SMITH: Never. No. No. I never sensed that at all. The PDRC was usually a look- back to see what went wrong, if anything, and trying to understand looking back to see the mistakes that happened as opposed to -- as opposed to go through all of the information so that a Crown attorney could -- the ducks in a row refers to a Crown attorney understanding the strengths and --
MS. SUZAN FRASER: Yes.
DR. CHARLES SMITH: -- weaknesses of -- of various medical opinions.
MS. SUZAN FRASER: All right but is it fair to say and I'm almost finished --
DR. CHARLES SMITH: Mm-hm.
MS. SUZAN FRASER: -- Mr. Commissioner, if I may but it's important to my client that where -- you -- you indicated in the CAS cases you deferred to the
CAS representatives --
DR. CHARLES SMITH: Mm-hm.
MS. SUZAN FRASER: -- on the committee. Is that -- was that your evidence, sir?
DR. CHARLES SMITH: Yes. Yes.
MS. SUZAN FRASER: All right.
DR. CHARLES SMITH: In the CAS cases I don't think there was -- in the cases that came forward, I can't ever remember pathology issues that I could speak to in -- in any significant way.
MS. SUZAN FRASER: All right. Thank you, sir. Those are my questions.
COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. Fraser. We will rise then for fifteen (15) minutes and come back with you, Mr. Gover.
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