Ontario Acts On Goudge Recommendations

Ontario Acts On Goudge Recommendations

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TORONTO, Oct. 23, 2008 /CNW/ - NEWS

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.

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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
(http://www.mcscs.jus.gov.on.ca/english/about_min/bio.html).

"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 (http://webx.newswire.ca/click/?id=2e478d1bd6e0ea3).

"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.

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LEARN MORE

Learn more about Ontario's coroners
(http://webx.newswire.ca/click/?id=7493768864254bc).

Read Justice Goudge's report and recommendations
(http://www.goudgeinquiry.ca/).

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ontario.ca/safety-news
Disponible en français


BACKGROUNDER
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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.

<<>>

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.

Remembering Austin (My oldest son) and Others Take From Us.

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.

My Apology (Sort Of) (2oo8)

TAKEN FROM JANUARY 28th, 2008 Transcript from the Goudge Inquiry.

During the Inquiry this day all apologies were said where he felt they needed to go. Each apology was said facing his lawyer Ms. Langford not those that he was apologizing too.

I said to the reporters "His apology is not sincere. If he meant it he would have looked at us the ones he affected who were all sitting in the Inquiry Room at that time. Not once did he make any effort to look at us."


MS. JANE LANGFORD: The reviewers, Dr. Smith, concluded that the cause of death should have been labelled "undetermined," but they also opined that Joshua likely suffocated accidentally as a result of his unsafe sleeping arrangements. Did you consider that as a possible explanation for Joshua's death at the time?

DR. CHARLES SMITH: Well, I did; I -- I recognized that unsafe sleep environments were a possible cause.

Certainly at that time I was aware that things like waterbeds were -- were dangerous or a potentially dangerous sleep environment, and the -- the knowledge or understanding of an unsafe sleep environment was growing. But I don't believe at the time that I authored this report I -- I understood that his specific sleep environment was as dangerous as it -- as it could have been, and I believe that I focussed more on the findings that were more suspicious, leg fracture and skull fracture, as opposed to the possibility of this environmental risk.

MS. JANE LANGFORD: And before we leave this case, Dr. Smith, is there anything you wish to add?

DR. CHARLES SMITH: Yes. I deeply regret the -- the diagnostic error that I made and the confusion that is attendant upon it. I understand that it has caused problems for the investigators and for the judicial system, but most importantly, it has caused a significant problem for Joshua's family and Joshua's mother, and for that, I -- I am truly sorry.