TheStar.com - Ontario - Payout urged in Smith probe
October 01, 2008
Theresa Boyle Tracey Tyler
Staff Reporters
People unjustly convicted through the work of disgraced pathologist Dr. Charles Smith deserve compensation, the final report of the Public Inquiry into Pediatric Forensic Pathology in Ontario concludes.
The four-volume report released today by Justice Stephen Goudge also calls on the province to review additional cases of child deaths that may have resulted in wrongful convictions.
The report lists 169 recommendations to restore the public confidence in a system that saw innocent family members and caregivers wrongly convicted, charged or suspected in the deaths of children.
"My recommendations are the steps that I have concluded must be taken to restore and enhance public confidence in pediatric forensic pathology in Ontario, and its future use in the criminal justice system," Goudge said.
"If acted upon, they represent the best way to protect the administration of justice from flawed pathology, to leave behind the dark times of the recent past, and to create the forensic pathology service that the criminal justice system needs and the people of Ontario deserve.
"It is important that there be improvements in the way forensic pathology is practiced in individual cases in Ontario. . . At autopsy, the forensic pathologist should `think truth' rather than `think dirty.'
"To do so requires an independent and evidence-based approach that emphasizes the importance of thinking objectively. The pathology evidence must be observed accurately and must be followed wherever it leads, even if that is to an undetermined outcome."
While it's harshly critical of Smith, whose litany of mistakes sparked the inquiry, it's particularly critical of his bosses, who failed to rein him in. Ontario's former chief coroner, Dr. James Young, has been singled out for failing to heed years of warnings about Smith.
The inquiry, which ran over five months beginning last November, was prompted by mistakes made by Smith in 20 child-death investigations.
His errors included bungling autopsies, misdiagnosing causes of death, overstating his expertise and jumping to conclusions about family members based on their socio-economic status.
"When the pathology is flawed, or there is a failure of the oversight required to ensure its quality, the consequences are devastating," Goudge said. "Sadly, in the years I examined, both occurred in Ontario.
"For more than a decade, Dr. Charles Smith was viewed as one of Canada's leading experts in pediatric forensic pathology, and the leading expert in Ontario. Yet he had little forensic expertise, and his training was, as he himself described, 'woefully in adequate.'
"He achieved the status of a leading expert in the field in large part because there was no one who had the training, experience, and expertise to take him on. He worked ... too much in isolation.
"The situation was prolonged because there was then, as there is now, a severe shortage of forensic pathologists in Ontario and even fewer with the knowledge and experience to do pediatric forensic cases or to provide the culture of peer review on which quality depends.
"The serious mistakes he made, with the terribly unfortunate consequences that resulted, were on clear display at the inquiry.
"But the tragic story of pediatric forensic pathology in Ontario from 1981 to 2001 is not just the story of Dr. Smith. It is equally the story of failed oversight. The oversight and accountability mechanisms that existed were not only inadequate to the task, but were inadequately employed by those responsible for using them.
"The challenge ahead is to correct the failings that permitted these things to happen. We must do all that we can to ensure that, so far as possible, this history is not repeated.
"This is the objective of the 169 recommendations I have made."
While Goudge didn't have the mandate to order compensation, he did nudge the province to do so, something that many victims and their lawyers had desperately hoped he would do.
"I urge the Province of Ontario to see if ... a viable compensation process can be set up," he wrote.
The commissioner noted that many individuals became "entangled in the criminal justice system simply because of flawed pediatric forensic pathology and through no fault of their own."
Indeed, William-Mullins Johnson, of Sault Ste. Marie, was wrongly convicted for the rape and murder of his four-year-old niece, crimes for which he spent 12 years in jail.
Sherry Sherret, of Belleville was convicted of infanticide in the death of her 4-month-old son, largely based on Smith's evidence. She spent a year in jail and lost permanent custody of an older son.
Other families spent their life savings trying to defend their loved ones.
"I think the report has far reaching implications, not just for the future of pediatric forensic pathology in this case, but for the criminal justice system as whole," said James Lockyer, a lawyer representing Mullins-Johnson and eight other families.
"We all have a lot to learn from the report.
"I'm obviously pleased there's a recommendation for a review of shaken baby syndrome cases," Lockyer added.
Like so many today, Mullins-Johnson described Goudge’s report as “a start.” But by Mullins-Johnson’s definition, real accountability will only come if the Crown attorney’s office reviews the conduct of Smith and his two former superiors in the Ontario coroner’s office — Young and former Deputy Chief Coroner Dr. Jim Cairns — with a view to laying criminal charges.
Mullins-Johnson said he wants to see all three men prosecuted criminally for obstruction of justice.
They fabricated a crime that never took place — one he paid for with 12 years of his life, he told reporters.
“They invented a crime here,” he added in an interview with The Star. “They just basically took it out of the air and said, ‘Let’s get him.’”
Goudge’s report provides “tough answers to what were tough questions,” said Julian Falconer, a lawyer representing Aboriginal Legal Services of Toronto.
“It was, quite frankly, painfully obvious to everyone at the start of this inquiry the incompetencies exhibited by Dr. Smith. The question really was, how could it have been allowed to go on so long.”
The answers pointed to the man at the top of the coroner’s system, who was too busy in other high-profile government jobs to keep tabs on what Smith was doing, Falconer said.
Goudge’s report concludes “the Chief Coroner of Ontario, Dr. Young, misled the College of Physicians and Surgeons in 2002 with respect to Dr. Smith,” said Falconer. “It points out that Dr. Young was unable to fulfill the oversight role of the Chief Coroner because he accepted ore senior oversight positions, taking him elsewhere.”
“He (Goudge) identified a complete failure of oversight on the part of the Ontario coroner’s office,” said Frank Addario, president of the Criminal Lawyers Association.
“We see this as step one.”
“Step two is the government’s response. They need to step up to the plate as quickly as possible and build some confidence back into the system,” he said.
Exactly ten years ago, the public learned, during the inquiry into the Guy Paul Morin’s wrongful 1992 murder conviction, that “the forensic science system in Ontario has flaws,” Addario noted. “We’ve learned it again during this inquiry.”
In addition to insisting on standards of excellence generally through the system, Addario suggested it may also be time to insist that judges be required to undertake some training in basic sciences and scientific principles if they’re going to preside at homicide trials.
In urging the province to review old cases of child deaths, Goudge noted that science has evolved and some deaths once deemed criminally suspicious would now be attributed to natural causes.
"The significant evolution in pediatric forensic pathology relating to shaken baby syndrome and pediatric head injuries warrants a review of certain past cases because of the concern, in light of the change in knowledge, there may have been convictions that should now be seen as miscarriages of justice," he said.
In taking aim at Young, Goudge said as former chief coroner, the buck stopped with him.
"In the end, as Chief Coroner, Dr. Young must bear the ultimate responsibility for the failure of oversight," he wrote.
Of the report's 169 recommendations to restore public confidence in the system, 23 focus on improving oversight and accountability, including the creation of a governing council to ensure more objective and independent governance of the Office of the Chief Coroner of Ontario.
Goudge was also critical of Cairns, noting that those in the senior ranks of the Office of the Chief Coroner ignored warning signs about Smith for more than a decade.
"Because of their positions, (Young and Cairns) clearly had authority over Dr. Smith in his role as director of the (Ontario Pediatric Forensic Pathology Unit) and in his work on individual cases had they chosen to exercise it. Ultimately they could have removed him from both functions. Unfortunately, this authority was never translated into effective oversight," the report states.
Commenting on Smith's rise through the ranks despite a lack of training, Goudge called for higher standards in the profession of forensic pathology
"For more than a decade, Dr. Smith was viewed as one of Canada's leading experts in pediatric forensic pathology and the leading expert in Ontario. Yet he had little forensic expertise and his training, as he himself described was `woefully inadequate,' " he wrote.
Goudge said the profession of forensic pathology needs to be beefed up with better education, more recruitment and more funding to grow the field. He also called for an amendment to the Coroner's Act to formally recognize the role of forensic pathologists and define their duties.
Key recommendations
Justice Stephen Goudge makes 169 recommendations to improve Ontario's pediatric forensic pathology system. They include:
- Further review of other child deaths to determine if any resulted in potentially wrongful convictions — particularly cases that involved shaken baby syndrome or pediatric head injuries — given significant advances in the past two decades in what pathology knows about these cases.
- During autopsies, forensic pathologists should stop thinking "dirty" — approaching cases with a high level of suspicion, as preached by Smith and his superiors — and start thinking "truth."
- The Royal College of Physicians and Surgeons of Canada approve year-long programs in Canadian medical schools to train and certify doctors as forensic pathologists. (Smith had no formal training in forensic pathology, which has largely been the norm for Canadians doctors practicing in this field).
- Amending Ontario's Coroners Act to ensure the work of forensic pathologists is supervised, including the creation of a Governing Council to oversee the duties and responsibilities of the Office of the Chief Coroner.
- "Significant" increase in legal aid funding for serious criminal cases involving pediatric forensic pathology to ensure parents defended by skilled and experienced lawyers.
- Ontario hospitals should create policies for mandatory reporting of any serious concerns about the work of any hospital pathologist who performs autopsies under a coroner's warrant. Ontario's coroner's office should create similar policies.
- Forensic pathologists must ensure their work at autopsies is "transparent" and independently reviewable, which means preserving any information received before an autopsy, what they did during an autopsy and any evidence collected. (Smith lost, misplaced and withheld evidence).
- In their reports and testimony, forensic pathologists must ensure their opinion addresses other explanations for what they found during a post-mortem.
- The Ontario government should investigate whether a "viable" process can be set up to compensate affected families. (Goudge's mandate precluded him from making recommendations about individual compensation.)
- Trial judges must function as "gatekeepers" in cases involving "expert" scientific evidence — assessing, before that witness testifies, the reliability of their field of science and the reliability of their opinion, among other things.
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James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted, at his office in Toronto, ON. - Photo by Digital Journal
