'For God's sake, Michael Bryant, do something' (2oo7)

Tuesday, April 24, 2007

• By: Kirk Makin
• Organization: Globe & Mail

THE ERRORS OF CHARLES SMITH

Under pressure, the Ontario government grants an inquiry into a pathologist's questionable findings - and how people were affected

Lawyers for an Ontario mother convicted of infanticide on the basis of dubious scientific evidence blasted Attorney-General Michael Bryant yesterday for hypocrisy and stonewalling.

Notwithstanding Mr. Bryant's elaborate expressions of regret for those who have been convicted on potentially erroneous evidence from pathologist Charles Smith, they said that the Attorney-General has done little to get to the bottom of the brewing scandal.

"Sherry [Sherrett] has been through an unbelievable experience in the past 11 years," her lawyer, James Lockyer, said at a Queen's Park press conference. "She spent a year in jail for something that didn't happen. She has lived for all these years with the aura of having killed her child. For God's sake, Michael Bryant, do something about it today."

Almost simultaneously, Mr. Bryant was delivering the government's third version in four days of its Dr. Smith battle plan - a "full public inquiry."

In an interview last night, ministry spokesman Brendan Crawley said that the inquiry will be conducted under the Public Inquiries Act. It will "identify whether there are systemic failures and make timely recommendations that would improve and enhance the governance of and public confidence in pediatric forensic pathology," he said.

However, Mr. Lockyer asked reporters at the press conference to forgive him for taking a "jaundiced view" of the announcement, given Mr. Bryant's recent equivocations

Ms. Sherrett wept as she added her voice to the dispute yesterday, saying that she has waited far too long for justice.

"Last Thursday, the Attorney-General said that he will do everything in his power to right the wrongs," she said. "So far, his Crowns have flatly refused to right my wrong. How much longer does he think I should live with the past, with the shame of being wrongly accused of killing my child?"

Ms. Sherrett said that, unlike most other miscarriages of justice, there are multiple victims in the Smith affair.

"One day, I would like to see Dr. Charles Smith under oath, saying why he did what he did to people like myself - mothers, fathers, aunts and uncles," she said. "I no longer have to account for anything at all. But Dr. Smith does."

At Dr. Smith's house in Victoria, his partner, Bonnie Leaderbeater, answered the doorbell but turned a reporter away. Asked if Dr. Smith was in, Ms. Leadbeater said: "No he's not, and he doesn't take any calls or interviews."

At a 1995 autopsy, Dr. Smith found signs consistent with homicide on the body of four-month-old Joshua. As revealed in The Globe yesterday, the child's body was secretly exhumed last year and found to have no marks of violence after a re-examination by top pathologist Michael Pollanen.

Besides losing her baby, Joshua, Ms. Sherrett's eldest son was removed from her care and permanently placed with adoptive parents.

Ms. Sherrett said yesterday that being convicted of killing her baby caused her to be treated like a pariah. "From that day on, I became a baby killer," she said. "You hear about this for so long that you begin to doubt yourself. For the whole 11 years, being a baby killer followed me everywhere I went. It haunts me still to this day."

Ms. Sherrett said that she still tends Joshua's grave regularly. "I still water the flowers at his grave," she said. "I sit and talk to him, and I hope he hears me and knows that I love him and never stopped loving him. Only Joshua knows at this point that I never harmed him. ... "

Ms. Sherrett was sentenced to a year in jail after she agreed not to contest the Crown's case. The agreement meant she did not have to face the possibility of spending life in prison for murder.

"Imagine the pressure on these people," Mr. Lockyer remarked. "They were always being offered light sentences. In many ways, this is a bad remark on the plea bargaining system."

Mr. Lockyer said he found it "absolutely bewildering" that Mr. Bryant would not call a full inquiry last Thursday when he announced that 20 cases conducted by Dr. Smith are in doubt.

Last year, Ms. Sherrett had a baby daughter. "For 11 years, every day I woke up and said I want to be a mom one more time," she said. "I wanted people to see me for who I really am - a funny, caring, loving person. I hold my head high and say: I am a good mom."

For the first time, she said, it is possible to play with her daughter without being under observation. "I no longer have to have people with me at all times. ... All three of my children are part of my life today, even though two of them I can no longer see."

Sherrett's lawyers learning to set their expectations low (2oo7)

Tuesday, April 24, 2007

• By: Kirk Makin
• Organization: Globe & Mail

It would take just one favourable word from the Ministry of the Attorney-General for Sherry Sherrett to have her 1999 infanticide conviction speedily reviewed by the Ontario Court of Appeal.

So far, however, the ministry has stood in her path.

At the heart of Ms. Sherrett's dilemma is a standard, 30-day appeal period during which a criminal defendant can lodge an appeal of his or her conviction. Since Ms. Sherrett's appeal period ended 30 days after her 1999 conviction, either the Crown has to agree to extend it or she will have to persuade the court itself to give her an extension.

Assembling the proper documentation for such an application will consume "months and months and months," James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted, told a press conference yesterday.

In an interview afterward, Mr. Lockyer said that he and AIDWYC lawyer Elisabeth Widner, "literally begged" a special unit of prosecutors last October to agree to an extension of time. Their refusal was conveyed to him informally, Mr. Lockyer said.

"I had set my sights very low, indeed, and to no avail," he said. "Their consent would have speeded up the process considerably."

For victims, Ontario pathology scandal lives on

Kirk Makin

From Saturday's Globe and Mail
Last updated on Saturday, Jul. 04, 2009 12:59AM EDT

Eight months after ending in a shower of praise and legislative reform, the inquiry into Ontario's forensic pathology scandal is a memory to all but the victims, who have yet to hear a whisper about compensation.

For many of the up to 20 individuals who were charged or convicted on erroneous evidence from disgraced pathologist Charles Smith, the pathology scandal remains very much alive.

“For a lot of people, it is never going to be over until they are compensated and the government has said that these people were wronged, and now we are compensating them,” said Louise Reynolds, who was wrongly jailed for two years for the murder of her daughter, Sharon, in 1977.

“I personally don't have any trust in government,” Ms. Reynolds said. “It's taking so long that I am concerned there is not going to be any compensation.”

Sherry Sherret-Robinson, who was convicted of killing her child in 1996, said she is “dumbfounded” by the delay. “We hear so many different things, and it affects our lives,” she said.

Ms. Sherret-Robinson, who is awaiting an Ontario Court of Appeal review of her conviction, defaulted on her student loans while she was fighting her murder charge. As a result, she said, she cannot get any more loans to resume her education.

“I have to sit here and try and make ends meet,” she said. “One thing I have learned: You can't trust the government on anything.”

In his 1,000-page report, Mr. Justice Stephen Goudge concluded that Dr. Smith was an arrogant, unqualified pathologist whose biased, inconsistent and unprofessional testimony precipitated a string of wrongful murder charges and convictions.

He also singled out the province for blame, saying that top officials in the Office of the Chief Coroner developed a “symbiotic relationship” with Dr. Smith that led them to shield him for years from the scrutiny he so desperately required.

Judge Goudge recommended that Ontario look into providing swift redress for people who, “through no fault of their own ... suffered tragic and devastating consequences.”

Ontario Attorney-General Chris Bentley raised the victims' hopes on Oct. 1, 2008, when he announced that a three-person committee headed by former associate chief justice of Ontario Coulter Osborne would recommend a fair compensation system, “as expeditiously as they can.”

Brendan Crawley, a spokesman for the Ministry of the Attorney-General, said that the committee is still “considering the issues before providing their confidential legal advice to the minister.

“No deadline has been set, but they are being thorough in their review while treating the matter with urgency,” Mr. Crawley said in an interview. “After the minister receives the advice of the committee, he will make a decision on next steps.”

Peter Wardle, a lawyer who represents several of the victims, praised the province for speedily amending the forensic autopsy system. However, he said, “it shouldn't take that long for the government to at least take the first step toward dealing with the people whose tragedies gave rise to the calling of the inquiry in the first place.”

Maurice Gagnon, the father of another victim, Lianne Thibault, said that the province may think that, by delaying, “the public memory will be dimmed and they can get away with more.”

Mr. Gagnon, 71, said that he and his wife have waited 12 years to recoup at least some of the $237,000 in retirement savings that they plowed into defending their daughter.

“If they wait long enough, I'm going to die and I'll never be able to enjoy my retirement,” he said. “The delay becomes inordinate. Our plans have been irreparably altered because of this. And my daughter, too. Psychologically and emotionally, you never get over it.”

While Ms. Thibault, 35, was never charged, she lost custody of one of her children during a sustained police investigation precipitated by Dr. Smith's conclusion that her 11-month old, Nicholas, had died from a non-accidental bump to his head.

COST OF WRITING A WRONG

A sample of compensation payments made to the wrongly convicted, and the time they served:

Donald Marshall, 11 years for murder, $1.6-million;

Guy Paul Marin, 18 months for murder, $1.25-million;

David Milgaard, 23 years for murder, $10-million;

Michael McTaggert, 20 months for bank robbery, $380,000;

Thomas Sophonow, 45 months for murder, $2.6-million;

Steven Truscott, 10 years for murder, $6.5-million.

Arctic coroners comb files for flawed autopsies (2oo7)

Arctic coroners comb files for flawed autopsies

The Globe and Mail

Friday, 27 April 2007

By Katherine Harding

Canada--Nunavut and Northwest Territories chief coroners are voluntarily searching their autopsy files dating back to 1981 to find out whether disgraced Toronto pathologist Charles Smith worked on any of them, The Globe and Mail has learned. "If Dr. Smith's fingerprints are on any of these files, then we will dig them out and see what they are," Northwest Territories Chief Coroner Percy Kinney said of the internal audit that was launched this week. "It's got to be done."

There is concern that Dr. Smith may have worked on some of these cases because it is standard practice for autopsies from the Eastern Arctic to be sent to the coroner's office in Toronto for examination because of Nunavut's lack of staff and facilities. Prior to 1999, the year Nunavut was created, the Northwest Territories also routinely sent autopsies originating in the Eastern Arctic to Toronto.

Earlier this week, the Ontario government announced it would hold a full public inquiry into the work of Dr. Smith. A panel of experts recently questioned the pathologist's findings in 20 of 45 autopsies they reviewed. In many of the cases, dating back to 1991, individuals were charged and convicted of criminal offences related to the deaths. Other cases did not result in convictions.

Dr. Kinney said the audit will be a lengthy process that could take months to complete because files will have to be searched manually.

He said there are plans to review files that involved deaths of people 16 or younger, who lived in the Eastern Arctic and had their autopsies sent to Toronto from 1981 to 1999.

He said that if Dr. Smith's name turns up on any of those autopsy reports, the autopsy itself will be reviewed and the body could be exhumed for further investigation.

Nunavut Chief Coroner Tim Neily said he has personally been searching autopsy files since details about Dr. Smith's mistakes were made public last week.

"As far as I know," Dr. Neily said, "he hasn't been involved in any cases, but it is being looked at just in case."

Meanwhile, a second autopsy performed on an Ontario baby whose mother was convicted of killing him has uncovered evidence that the child had pneumonia, a report by an international team of pathologists who reviewed the work of Dr. Smith says.

The evidence of pneumonia appears to reinforce the probability that the baby, Joshua Sherrett, died of natural causes.

Sherry Sherrett was convicted of infanticide in 1999, based partly on Dr. Smith's testimony that Joshua had a skull fracture and suspicious neck hemorrhages. Ms. Sherrett served a one-year jail term.

Her conviction came into serious question last year after the province's top pathologist, Michael Pollanen, exhumed Joshua's remains and conducted a second autopsy.

He found that what Dr. Smith took to be a skull fracture was apparently nothing more than a normal anatomical feature. Moreover, the neck hemorrhages that Dr. Smith had testified were cause for "consternation" appear to have been caused by a scalpel used at the autopsy.

The members of the review panel, in turn, scrutinized Dr. Pollanen's findings as well as original photographs and case samples, adding a few observations of their own. One of the panel members, Irish pathologist Jack Crane, noted that the presence of cells was indicative of bronchopneumonia, James Lockyer, Ms. Sherrett's lawyer, said.

The pathologists' report has not been released, but lawyers for some of the people involved in the cases have copies.

Mr. Lockyer was reluctant to release his copy, but quoting it concluded: "The presence of inflammatory changes in the lungs may represent an early respiration infection, which could have contributed to sudden and/or unexpected death."

"That fits right in with Sherry having taken Joshua to the hospital in the weeks before his death because he was short of breath and she was worried about his health," Mr. Lockyer said in an interview. "It is an important piece of the puzzle.

"Joshua may have had a respiratory infection that could have contributed to his sudden and unexpected death through accidental suffocation in his crib. If you have already got a respiratory infection, you are much more prone to suffocate."

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