Disgraced MD Sues

Below in this article it stats how Smith believes he was wrongfully dismissed from his position out west. I am not sure how things work out west but I know here in Ontario if you lie on your application it is grounds for dismissal. PERIOD. No ands, ifs or butts about it.

This is just another thing that I believe he thinks was wrong against him. I wonder when everything will kick in and he realizes "Oh my god, what did I do to these people?"

Disgraced forensic pathologist Dr. Charles Smith -- whose faulty testimony landed many innocent people in jail in Ontario -- is suing the Saskatoon Regional Health Authority for wrongful dismissal.

The suit comes after a 2006 tribunal ruled the health authority was "unfair, unreasonable and wrong" when it denied Smith hospital privileges in Saskatoon, cutting short a one-year contract to work as a surgical pathologist at Saskatoon City Hospital.

"There was no just cause for the dismissal of the plaintiff, nor has reasonable notice been provided, nor has the plaintiff been paid in lieu of reasonable notice," says Smith's statement of claim filed in Saskatchewan's Court of Queen's Bench.

Saskatoon lawyer Gary Bainbridge filed the suit while Ontario was holding a public inquiry that had Smith's questionable work at its focus.

Last month at the inquiry, Smith apologized repeatedly for his conduct, saying he had "woefully inadequate" training in child forensic pathology when he began doing autopsies on children who had died suspiciously.

He admitted that he had sloppy work habits and procrastinated, that he contributed to a miscarriage of justice, that he fabricated a tale about a judge who disagreed with his conclusions and that when he testified as an expert witness, he thought he was supposed to be on the Crown's side, not an independent scientist.

A review of Smith's work, which prompted the inquiry, found Smith made significant errors in 20 of 45 suspicious child deaths he helped investigate between 1991 and 2001. In 12 of those cases, people were criminally convicted.

One man was wrongfully convicted and served 12 years in jail for the rape and killing of his niece. William Mullins-Johnson was acquitted of the crime in October, and Smith offered him an emotional apology at the inquiry.

When scrutiny of Smith's work intensified in 2005, he left Toronto's Hospital for Sick Children and began a one-year contract in Saskatoon as a surgical pathologist in September of that year. He was restricted to analyzing samples collected from live patients, such as cancer biopsies. However, when it came time for the Saskatoon Health Region's board to approve his hospital privileges -- a process that's usually a rubber stamp -- the board said no.

With no hospital privileges, the health region terminated his contract in December 2005.

Smith appealed the board's decision to a rarely used provincial tribunal, and in November 2006, the tribunal ruled the regional health authority made a mistake by denying Smith privileges.

The tribunal said it would have ordered the health region to reinstate Smith, except his licence to practise medicine in the province had expired by then.

Bryan Salte, associate registrar with the College of Physicians and Surgeons of Saskatchewan, said Smith re-applied for his Saskatchewan licence, which was granted from February to December 2007. The licence was issued on the condition he not practise forensic pathology, Salte said.

Salte said it "would be extremely unlikely" Smith practised medicine during that time, since he would have to be employed by a health region to work in his specialty. Several Saskatchewan health regions contacted by The StarPhoenix said Smith is not, and has not, been working there.

Smith is paying $300 a year for an "inactive" licence in Saskatchewan, meaning he can apply to have his licence re-instated with less paperwork than starting from scratch, Salte said.

James Winkel, a spokesperson with the Saskatoon Health Region, says Smith has since applied for two job postings for anatomic pathologists in Saskatoon. He did not get either job, and the positions were filled by other candidates, Winkel said.

"He's a pediatric pathologist so the qualifications didn't fit the positions," Winkel said.

Evert van Olst, legal counsel for the health region, said he could not comment on Smith's suit because the region has not yet been formally served with a statement of claim.

"This is the first I've heard about it," van Olst said. "I'm assuming that he issued it out of some kind of abundance of caution, and maybe doesn't have an intention of serving it."

The tribunal never gave the health region a solution to deal with Smith's "unfair" treatment, van Olst said.

Smith could not be reached for comment, nor could his lawyer, Bainbridge.

In his suit, Smith is asking the health region for damages, including loss of salary, employment benefits, stipends, professional stature and emotional stress. He's also claiming damages "exceeding $50,000."

People prosecuted and sent to jail because of Smith's forensic conclusions have said their lives were devastated by his sloppy work. Peterborough, Ont., mother Brenda Waudby was charged with second-degree murder when her 21-month-old daughter was beaten to death. Smith did not turn over to police a pubic hair health-care workers found on the child's body. International experts who reviewed the case found Smith had estimated the tot's time of death incorrectly and concluded the toddler likely died when a male babysitter was caring for her. Charges against Waudby were dropped and the babysitter was convicted of manslaughter.

In 1997, Louise Reynolds was charged with second-degree murder in the stabbing death of her seven-year-old daughter. She spent nearly two years in jail awaiting trial before the Crown prosecutor withdrew the charge. A forensic expert from the U.S. found the child had actually been mauled to death by a dog.

jfrench@sp.canwest.com

© The StarPhoenix (Saskatoon) 2008

Seeking Solutions

Seeking solutions



The Goudge Inquiry (www.goudgeinquiry.ca) has commissioned an extensive series of research papers. One will examine whether there is adequate legal aid funding for defence experts in criminal cases involving child deaths.

The imbalance between the financial resources of the state and ordinary citizens when it comes to hiring experts is a big issue internationally.

In England, trial judges no longer have the power to order the government to pick the costs of a defence expert. "The defence has to persuade the legal services commission to grant funding," says barrister Edward Henry.

Closer to home, Legal Aid Ontario pays psychologists and psychiatrists who testify as expert witnesses up to $325 for a half day's work — well below what many would charge privately paying clients.

GOUDGE INQUIRY

GOUDGE INQUIRY:

What is it? Public inquiry headed by Justice Stephen Goudge on the work of Dr. Charles Smith and Ontario's pediatric forensic pathology system generally.

What prompted it? A review by international experts that found Dr. Smith made serious errors in 20 of 45 criminally suspicious deaths he investigated between 1991 and 2001.

What fallout did Dr. Smith's work have? Helped lead to homicide charges against parents and other caregivers, many of which were unwarranted.

When did the hearings start? Nov. 12, 2007

When does Dr. Smith begin testifying? Jan. 28

When is Justice Goudge's report due? No later than April 25

A Clue As To How Dr. Charles Smith Attained His Reputation As A "Forensic Pathologist"; by Harold Levy

Sunday, January 13, 2008
A Clue As To How Dr. Charles Smith Attained His Reputation As A "Forensic Pathologist";

"YOU WEREN'T AWARE THAT HE -- HE WASN'T TRAINED AS A FORENSIC PATHOLOGIST?," AN APPARENTLY INCREDULOUS (COMMISSION COUNSEL) ROTHSTEIN SHOT BACK.

"NO, HE WAS -- HE WAS PORTRAYED TO ME AS A FORENSIC PATHOLOGIST, AND I INTERPRETED THAT HE WAS A FORENSIC PATHOLOGIST," (DR DIRK) HUYER REPLIED.

TESTIMONY AT THE GOUDGE INQUIRY;

A previous post pointed out that when he was appointed head of the newly formed Ontario Forensic Pathology Unit in 1991 Dr. Charles Smith had no formal training as a forensic pathologist.

Yet we have also learned that Dr. Smith was looked to as a forensic pathologist by his colleagues at the Hospital For Sick Children - and presumably by the judges who invariably permitted him to give opinion testimony as an expert in the criminal courtroom.

(I have talked to several judges in recent years who frankly acknowledge that they were so drawn in by Dr. Smith's impressive demeanour, confident delivery, and impressive C.V. - loaded with references to courses, conferences, periodical articles and lectures - that they dropped their guard and didn't insist on exacting evidence that he was qualified to give the testimony.)

The clue as to how Dr. Smith's colleagues and others, such as judges, crown attorney's and police officers can be found in the evidence of Dr. Dirk Huyer to the Goudge Inquiry.

When asked by Commission Counsel Linda Rothstein "did you draw any distinction between Dr. Smith as a certified pediatric pathologist and as someone who didn't have formal training as a forensic pathologist? Was that a meaningful distinction to you?

"I don't think I was aware of that," Huyer, who testified about the great respect he had for Dr. Smith's forensic work, replied.

"You weren't aware that he -- he wasn't trained as a forensic pathologist?" an apparently incredulous Rothstein shot back?

"No, he was -- he was portrayed to me as a forensic pathologist, and I interpreted that he was a forensic pathologist," Huyer replied.

"I don't know if I ever reviewed his CV or -- or understood specifically the training that he had.

He was in the role as the pathologist dealing with cases where there was significant concern and suspicion prior to my arrival is the understanding that I -- that's what I remember, anyways..."

In an interesting exchange, Commissioner Goudge suggested to Huyer that like Smith, he also lacked formal training in forensic matters - even though, as a member of the Hospital For Sick Children Suspected Child Abuse and Neglect (SCAN) team, he would be involved in cases where there was suspicion.

In Commissioner Goudge's own words: "I guess you, as a member of the SCAN Team, were involved in those cases without any formal training in forensics, as well?

Huyer's reply: "Absolutely, yeah. So I don't know if I thought that through at the time. I certainly knew what I was doing, --

COMMISSIONER STEPHEN GOUDGE: Right."

In the view of this humble Blogster, it was easy for Dr. Smith to become accepted as a properly qualified forensic pathologist because he had been appointed head of a c unit which was called "The Ontario Forensic Pediatric Pathology Unit."

Whenever he testified in court, the inclusion of "Forensic" in the name of the unit, would quite reasonably suggest to the judge and anyone else involved in the criminal justice process - including jurors, prosecutors and police officers - that he was a formally trained forensic pathologist.

And Dr. Smith would be under no obligation to inform the court or any one else that he had never received specialized training in forensic pathology - which we have learned during the inquiry is a highly complex specialized field that has no room for "dabblers."

There is also the reality that forensic pathology was totally under-developed in Canada - with the consequence that Dr. Smith virtually had the field for himself - without having to prove himself to anyone else.

In short, Dr. Huyer was not the only person to assume Dr. Smith was a fully qualified forensic pathologist because he looked and played the part - many others innocently fell prey to the same mistake.

This humble Blogster is not suggesting in any way that Dr. Smith deliberately misled the public or the judicial system as to his qualifications.

He didn't have to.

Harold Levy...hlevy15@gmail.com...

Ontario Chief Coroner - Backgrounder on Dr Charles Smith

http://www.mcscs.jus.gov.on.ca/english/pub_safety/office_coroner/OCC_Smith_BG.pdf


Backgrounder/ Document d’information
Office of the Chief Coroner
Bureau du coroner en chef
26 Grenville Street
Toronto ON M7A 2G9
Telephone: 416 314-4000
Facsimile: 416 314-4030
26, rue Grenville
Toronto ON M7A 2G9
Téléphone : 416 314-4000
Télécopieur : 416 314-4030
April 19, 2007

PUBLIC ANNOUNCEMENT OF REVIEW OF CRIMINALLY SUSPICIOUS AND HOMICIDE CASES WHERE DR. CHARLES SMITH CONDUCTED AUTOPSIES OR PROVIDED OPINIONS HISTORY:

In November of 2005, Dr. Barry McLellan, Chief Coroner for Ontario, announced the scope and format of a review into 44 criminally suspicious and homicide cases, dating back to 1991, where Dr. Charles Smith had performed an autopsy or provided an opinion in consultation. The purpose of the review was to determine whether the conclusions reached by Dr. Smith in his autopsy or consultation reports, or during his testimony where applicable, could be supported by the information and materials available for independent review.

At the time of the original announcement in November 2005, 44 cases had been identified for review. They included cases where at some point in time, the death had been determined to be a homicide or criminally suspicious and where Dr. Smith was either the primary or a consulting pathologist. Of the 44 cases, 43 dated back to 1991 when the Provincial Paediatric Forensic Pathology Unit first opened, and the other case was a 1988 death that had received significant public attention. Through the process of collecting information and reviewing files, it became evident that there were 45 cases that met the review criteria.

REVIEW PROCESS:
The scope and format for the review were determined with advice from the Forensic Services Advisory Committee of the Office of the Chief Coroner. This Committee was formed to strengthen the independence and objectivity of the Office, as well as to improve communication with key stakeholders. Advice to the Chief Coroner is provided through this multidisciplinary Committee that includes representatives from the Office of the Chief Coroner, the Centre of Forensic Sciences, various police services, the Prosecution Service and the Defence Bar. Committee members share a common interest in advancing the quality and independence of all aspects of post mortem examinations conducted on coroners’ cases.
The review was conducted by a panel of internationally respected experts in forensic pathology. The members of the committee included:

Dr. John Butt - Consultant in Forensic Medicine, specializing in expert opinion and evidence, as well as education about investigation and pathology of sudden death and serious injury. Prior to setting up an independent consulting practice, Dr. Butt was the Chief Medical Examiner for the Province of Nova Scotia and before this, he was the Chief Medical Examiner for Alberta.

Professor Christopher Milroy - Professor of Forensic Pathology at the University of Sheffield, England, consultant pathologist to the British Home Office and Honorary Consultant in forensic pathology for the Sheffield Teaching Hospitals National Health Service Foundation Trust.

Professor Helen Whitwell - Professor of Forensic Pathology at the University of Sheffield and a consultant pathologist to the Home Office. She brought special knowledge and expertise to the panel in the area of neuropathology.
Professor Jack Crane - State Pathologist for Northern Ireland, a Professor of Forensic Medicine at The Queen’s University of Belfast, and a consultant pathologist of the Northern Ireland Health and Social Services Boards.

Professor Pekka Saukko - Professor and Head of the Department of Forensic Medicine at the University of Turku in Finland.

The cases were prioritized for review based on whether persons who were convicted or found to be Not Criminally Responsible, as a result of any previous court proceedings still had restrictions imposed on their liberty, including those persons who were out of custody, but on parole or on bail. An initial screening review of the investigation materials from the remaining cases by a subcommittee of the Forensic Services Advisory Committee, with forensic pathology, police, and Crown and Defence counsel members, identified 10 cases where there did not appear to be any potential controversial issues with medical evidence. These cases underwent the same structured review, but were reviewed by other senior pathologists in Ontario, in order to ensure best use of the external reviewers’ time to deal with the more potentially difficult and complex cases.

All 45 cases were reviewed through a structured process. The reviewers were specifically asked to provide their opinions on the following:
• whether they agreed that the important examinations were conducted;
• whether they agreed with the facts reported as arising from the examinations conducted and;
• whether they agreed with the interpretation of the examinations conducted with respect to the cause and where an opinion was provided, the mechanism of death.

The materials reviewed by the pathologists included:
• autopsy reports or consultation reports completed by Dr. Smith;
• the coroner’s warrant;
• any other autopsy or consultation reports arising from the investigation and, where available, second opinion pathology consultation reports;
• photographs from the autopsy and death scene;
• microscopic slides and any other pathology materials;
• police reports;
• reports from the Centre of Forensic Sciences and
• where available, selected relevant court transcripts arising from all pathology and any related medical evidence, for those cases that proceeded through the criminal courts. The review did not include, and was not designed to include, the entire Court record in each individual case.

Wherever possible, families of the 45 children who formed the basis of this review, and counsel who represented parties on matters arising from the coroner’s investigations into these deaths, were contacted directly prior to the start of the review. Wherever possible, families of the children, or their counsel, have also now been informed of the results of the review of their child’s death. Families of the children are entitled to receive the reports arising from the review of their child’s death consistent with the Coroners Act, subject to any ongoing Court proceedings, and the Office of the Chief Coroner will now be making these reports available. Families who have not yet been contacted, may call the Office of the Chief Coroner at 1-877-991-9959 at any time in order to inquire about obtaining reports.

RESULTS:
A total of 45 cases were reviewed. The first question dealt with the examinations that were conducted, recognizing that in three cases Dr. Smith was performing a post-exhumation autopsy and in four cases he was providing an opinion in consultation, not having had the opportunity to conduct an autopsy himself. In all but one of the 45 cases, the reviewers agreed that Dr. Smith had conducted the important examinations that were indicated. In one case, there was concern that a complete examination had not taken place and in this same case that a specimen taken at autopsy had not been submitted at the time for potential testing. This concern was made known to appropriate Crown and Defence counsel who had carriage of this case prior to the case coming to conclusion in the Criminal Courts.

The second question was whether the experts agreed with the facts reported as arising from the examinations performed. In nine cases the experts did not agree with significant facts that appeared in either a written report or that came forward during expert testimony in Court. A common theme centred around the timing of certain injuries, including fractures.
The final question was whether the reviewers agreed with the interpretation of the examinations conducted with regard to the cause and where Dr. Smith provided an opinion, the mechanism of death. In 20 of the 45 cases, the reviewers had some issue with the opinion of Dr. Smith that appeared in a written report, testimony in Court, or both. The concerns raised by the reviewers in these 20 cases ranged from relatively minor to potentially more serious issues. In a number of these cases the reviewers felt that Dr. Smith had provided an opinion regarding the cause of death that was not reasonably supported by the materials available for review.
There were restrictions of liberty arising from findings of guilt, including 12 convictions and one finding of Not Criminally Responsible, in 13 of these cases where the reviewers did not agree with significant facts or with the interpretation of the examinations conducted. To date the reports of the reviewers have been provided to Crown and Defence counsel in three of these 13 cases. The reports in all of the remaining cases will be provided to the Crown and they will then be appropriately disclosed to Defence counsel.
The Chief Coroner appreciates the public concern that may arise as a result of the reviewers having expressed differing opinions in cases where there were subsequent convictions or a finding of Not Criminally Responsible. As indicated, the opinions of the external reviewers and the concerns leading to this opinion for all of these cases have been, or are in the process of being shared with appropriate Crown and Defence counsel. The significance of the concerns expressed by the reviewers, specifically with respect to the role any medical evidence may have played in a finding of guilt, will therefore be appropriately considered.

It is important to provide a context for the concerns expressed by the reviewers in two cases with respect to Dr. Smith’s opinion on the cause of death and mechanism of death. In two cases the reviewers noted that the opinions reached by Dr. Smith were not inconsistent with the body of knowledge available at the time — the early 1990’s — with respect to paediatric head injury. In fact, there is still disagreement between medical experts today as to the significance of certain findings in some cases of paediatric head injury. Although the reviewers disagreed with Dr. Smith’s opinion, they felt that his conclusions in these two cases were consistent with what other Pathologists and medical experts may well have concluded at the time he provided his opinion.

It is also important to provide a context for the overall results of this review. Dr. Smith was conducting his work as one member of a larger death investigation team. This means that Dr. Smith was, in part, relying on information provided to him by coroners, police, and other forensic experts. Dr. Smith, working as a pathologist within the Coroner’s system, frequently presented his findings and opinions at meetings and rounds where other pathologists and coroners would have had an opportunity to provide feedback and, where appropriate, disagree with the opinion being presented. In a number of these cases other pathologists may have reviewed or audited Dr. Smith’s work as part of a quality assurance process. In certain cases where expert testimony was given, Defence experts appear not to have recognized concerns that have now been brought forward as a result of this review.

LESSONS LEARNED:
Lessons have been learned in the Ontario Coroner’s System through previous cases and as a result of this review. Maintaining public confidence in the Ontario Coroner’s System was an underlying reason for conducting this review. Some of the positive changes that have taken place and some of the processes that are now in place to ensure the highest quality of forensic death investigation include:

• In 1995, the Office of the Chief Coroner developed a protocol for coroners, pathologists, police, and other members of the death investigation team to follow when investigating paediatric deaths. This protocol, focusing on deaths of children under the age of two years, has subsequently been presented at a number of educational courses and has become the standard operating procedure for all members of the death investigation team. The protocol has been shared with other jurisdictions and has been used as a template for other death investigation systems. A number of improvements have subsequently been made to the protocol. Late last year, a revised protocol was released through the Office of the Chief Coroner whereby all child deaths under the age of five years are now subjected to this standardized investigation.

• The Office of the Chief Coroner has two review committees focusing exclusively on complex paediatric deaths. The Deaths Under Five Committee reviews the investigation materials and coroners’ conclusions on all deaths under the age of five years to ensure consistency in the examinations conducted and the conclusions reached. The Paediatric Death Review Committee reviews complex paediatric deaths, including all cases where Children’s Aid was involved prior to the death.

• All autopsies conducted on children under the age of five years are now performed in only one of four centres throughout the province: London, Ottawa, Hamilton and Toronto. This change was introduced in early 2002 to ensure that these complex autopsies are performed at centres where there is the greatest expertise in pathology and paediatric specialties, and where the resources for special tests such as CT or MR imaging are most accessible.

• All forensic autopsies on criminally suspicious cases, homicides, and cases going to inquest, now undergo a standardized audit process. A process of audit began in 1995 and has subsequently undergone a number of improvements. The current audit process, under the direction of the Chief Forensic Pathologist, is intended to ensure that all important examinations have been performed and that the facts arising from these examinations and the conclusions reached are logical and clearly supported by the materials available for any independent review.

• Guidelines have been prepared for autopsies on all criminally suspicious and homicide cases, under the direction of the Chief Forensic Pathologist. These guidelines have recently been updated to include a paediatric module. The guidelines include the important examinations to be completed and the documentation and specimen retention expected, to ensure that the conclusions reached are independently reviewable.

• Guidelines have also been produced for coroners focusing on the important observations to make at scenes, documentation expected in coroners’ reports and the essential communication that is expected with pathologists and other members of the death investigation team. It is the coroner, at the conclusion of the investigation, that is responsible for certifying the death, including determining the cause and the manner of death. Arising from this review, an audit was performed of the Coroner’s Warrant for Autopsy and the Coroner’s Investigation Statements. In 11 of the 45 cases reviewed, the Warrants were completed with less information than what is currently expected based on the guidelines, although in no cases was it felt that the deficiencies identified impacted on the conclusions reached by Dr. Smith.

Regardless, there is need for better communication between coroners and pathologists. As a result of this audit, it will soon be policy for direct telephone or in person communication between the coroner and pathologist, prior to the commencement of the autopsy, for every criminally suspicious or homicide case and for all deaths under the age of five years.

• A special course has been developed for pathologists who provide expert testimony in court. With the assistance of Crown counsel, Defence counsel and pathology experts, the importance of balanced and fair testimony are emphasized through a two-day course that includes mock examination and cross-examination. This course will be offered again in June 2007.

• Early case conferences are now held following all homicides and criminally suspicious cases, wherever there are outstanding issues or significant unanswered questions following the autopsy. These case conferences include a senior coroner, the pathologist who conducted the examination, scientists from the Centre of Forensic Sciences, police and any other experts as appropriate. These case conferences are held, in part, to ensure that all members of the death investigation know what has been found at the time of the autopsy and what outstanding examinations or test results are necessary before appropriate conclusions can be reached by the pathologist.

A number of these steps to improve the quality of investigations have been, and will continue to be, shared with other jurisdictions through educational courses and presentations.

FURTHER REVIEW:
This review covered the work of Dr. Smith from 1991 to 2002. Dr. Smith did, however, also conduct autopsies and provide opinions on cases between 1981 and 1991. Given the results of this review, there may well be cases prior to 1991, which raise similar concerns. With this in mind and also being mindful of the fact that the greatest concern surrounds cases with findings of guilt and restrictions of liberty, the Office of the Chief Coroner will work with the Ministry of the Attorney General to try to identify all such cases where Dr. Smith conducted an autopsy, or provided an opinion in consultation, prior to 1991.

As this list of cases is developed, the Prosecution Service will take the lead to disclose the overall results of this review to the person whose liberty was restricted. If any such person asserts their innocence and requests that their case be reviewed, the Office of the Chief Coroner will then assist the Prosecution Service and the Defence to arrange for an independent review of Dr. Smith’s forensic pathology work and opinion. The results of the individual review will then be appropriately shared with the person requesting the review through the disclosure process.

As indicated in the original announcement, the start date of 1991 was an arbitrary one that coincided with the opening of the Paediatric Forensic Pathology Unit. This additional step is being taken at this time to ensure that cases of greatest potential concern are reviewed, regardless of when the work was conducted.
Conducting this review has been an essential step for the Office of the Chief Coroner. The Office of the Chief Coroner performs more than 20,000 death investigations and pathologists working for the Office conduct almost 7,000 autopsies every year. Coroners’ investigations lead to many important recommendations to advance public safety and information gained through death investigations is essential for the administration of justice. The public must have confidence in the death investigations conducted by this Office. The Office of the Chief Coroner is unaware of any other jurisdiction that has as many processes in place to ensure the highest quality of death investigation, including independently reviewable post mortem examinations.

Contact: Dr. Barry McLellan Chief Coroner for Ontario Ministry of Community Safety and Correctional Services 416-314-4000 or 416-314-4100
Disponible en français

Those Affected By Dr. Charles Smith's Findings

TheStar.com - Ontario - Smith inquiry reveals details of 10 new cases
Discredited pathologist Dr. Charles Smith made questionable findings

November 14, 2007

Theresa Boyle Staff reporter

Extensive details of 10 new cases in which discredited child pathologist Dr. Charles Smith made questionable findings were unveiled at a public inquiry yesterday.

Justice Stephen Goudge, who is heading the Inquiry into Pediatric Forensic Pathology in Ontario, issued a publication ban on the names of some of the victims while others were replaced by pseudonyms.

Lawyers for individuals covered by the ban said the move was necessary to protect their clients from further hardship.

But the case files, some more than 100 pages long, reveal the details of the deaths of the 10 children – most of them infants; one almost 4-years-old.

In all of the cases yesterday, criminal charges were laid against one or both of the parents based on Smith's findings after autopsies on the victims.

The inquiry has chosen to deal with 18 of the 20 cases in which there were found to be problems. The 18 case histories released yesterday – including the 10 previously undisclosed – filled two large binders.

During testimony yesterday, the inquiry heard that senior officials in the province's chief coroner's office decided four years ago that the brakes had to be put on Smith.

"Decision by all present – he can't continue medical-legal post-mortems or committee work," state notes taken by Al O'Marra, then chief legal counsel to the office of the coroner.

He was referring to Smith, who was present at that October 2003 meeting along with then-chief coroner Jim Young, deputy coroner Jim Cairns, and acting chief coroner Barry McLellan.

The committee work referred to in O'Marra's notes were the Pediatric Death Review and Death Under Two committees. Smith sat on both.

O'Marra's notes were tabled yesterday as exhibits.

The province called for the inquiry after it was revealed that problems had been found in 20 child-death investigations in which Smith performed autopsies or rendered opinions. In 12 of those cases, individuals were convicted of crimes; in one, an individual was found not criminally responsible; and in seven, people were suspected or charged with crimes but not convicted.

O'Marra's notes from the high-level meeting indicate that Smith did not want to take responsibility for the problems.

"No insights into problems – deflects all criticism to failings of others," read the notes.

McLellan, who testified yesterday, revealed that there was some disagreement in the chief coroner's office on what to do about Smith. McLellan favoured a hard-line approach, but his boss at the time, Young, disagreed.

"We did not agree. ... Dr. Young was aware of my position. I certainly respected his position as chief coroner," McLellan said.

But when McLellan was promoted to the job of chief coroner in April 2004, he took immediate steps to remove Smith from the position of head of the Ontario Pediatric Forensic Unit, located at the Hospital for Sick Children.

"I met with Dr. Smith and I indicated that I felt he should not be continuing in that role," McLellan said.

The inquiry heard how Young had publicly stated that an internal review was necessary, after murder charges were dropped in the case of Louise Reynolds, who spent two years in jail for the death of her 7-year-old daughter. Smith had concluded the child was stabbed to death but a review by other pathologists determined she was mauled by a pit bull.

Commission counsel Linda Rothstein said evidence will be produced in the coming days showing that despite Young's call for an internal review at that time, the coroner "later determined that a review would not go ahead because of legal advice."

Smith himself had even asked his superiors to intervene after charges were withdrawn in the Reynolds case and in the case of a woman who had been charged with killing her 3-year-old stepson. Other pathologists had determined the boy died after a fall.

In a January 2001 letter to Young, Smith asked to be excused from the performance of medical-legal autopsies and that an external review be done of his work.

Concerns about Smith persisted as the number of questionable cases continued to mount, the inquiry heard.

"I personally had concerns about Dr. Smith's ongoing involvement with committees, with conducting autopsies and with being the director of the unit in the context of ongoing concerns about his work," said McLellan, who also noted that Smith had an ongoing problem with tardiness.

He said that in 2003, Cairns responded to the concerns by removing Smith from the committees that investigate child deaths.

"He was still at this time conducting autopsies on non-homicide and non-criminally suspicious cases and he was still director of the unit," McLellan noted, referring to the Hospital for Sick Children's forensic unit.

Smith's performance was eventually addressed by a forensic services advisory committee, which is expected to be further examined by the inquiry today.

The new cases


1. Baby F

Date: Born and died Nov. 28, 1996.

Case facts: Baby F’s mother, a teenager, told police she had felt sick after coming home from school. After sitting on the toilet for 30 minutes, she saw a great deal of blood. Under hypnosis, she recalled seeing a baby in the toilet covered in blood and water. She put the baby, wrapped in a towel, in a plastic bag in her closet. On July 6, 1998, she pleaded guilty to infanticide and was given a two-month “conditional sentence, to be served at home,” three years’ probation and 150 hours of community service. A psychiatric assessment indicated that Baby F’s mother had been “consistent in denying that she knew about the pregnancy” and was suffering from “acute stress disorder.”

Smith’s finding: The baby girl appeared to be full-term and survived “for a period of time” following delivery. Death was caused by asphyxia, attributed to infanticide.

Outcome: Baby F’s mother was granted a pardon on Oct. 24 last year.


2. Tamara

Date: Born Jan. 18, 1998; died Feb. 8, 1999.

Case facts: Tamara had no contact with her father until September 1998, after which her mother testified he came over three or four times a week and helped look after Tamara and her two sisters. The Children’s Aid Society was notified after Tamara was treated at Sick Kids’ hospital on Jan. 20, 1999, for a broken thigh. Tamara and one of her sisters were left in the care of Tamara’s father the morning of Feb. 8, her mother said. She called several times but he didn’t answer. He told police she was in her playpen with a bottle and he fell asleep. Tamara’s mother testified that when she came home, Tamara was lying on her back with a scrape on her forehead and a bruise on her cheek and not breathing. A radiology report found “multiple fractures in various stages of healing ... highly suspicious for nonaccidental trauma.” The father was charged with second-degree murder.

Smith’s finding: Cause of death was given as “asphyxia associated with multiple traumatic injuries.”

Outcome: Tamara’s father pleaded guilty to manslaughter Aug. 30, 2001; he was sentenced to 15 months time served and 361/2 years prison.


3. Katharina

Date: Born March 20, 1992; found dead Sept. 15, 1995.

Case facts: Katharina’s father, Lawrence Babineau, and mother, Gabriela Chaparro-Najar, married in 1993 when the baby was 11 months old. The family lived in Oshawa until June 1994, when the parents split up and the mother moved with Katharina to her sister’s home in Toronto. A custody battle began with Chaparro-Najar alleging that Babineau had abused the child and Babineau claiming she had threatened to kill Katharina rather than let him have custody. Babineau told police he feared she would flee with the child to her native Colombia. Police forced entry into the apartment. They found Katharina’s body in the bedroom and Chaparro-Najar climbing over the balcony. She was charged with murder.

Smith’s finding: Death was caused by “asphyxia in a pattern of neck or chest compression,” consistent with having been suffocated with a pillow. The exact time of death, he said, was uncertain.

Outcome: On Nov. 3, 1997, Katharina’s mother was found not criminally responsible. She was detained at the Centre for Addiction and Mental Health until April 2001. She received an absolute discharge on Dec. 13, 2001.


4 .Taylor

Date: Born April 16, 1996, in Thunder Bay; found dead July 31, 1996.

Case facts: Taylor’s parents, Lanny and Laura, were charged with second-degree murder, criminal negligence causing death and failure to provide necessities of life. The couple had had an argument, after Taylor had been put to bed, and Laura left the apartment carrying her son from a previous relationship. Lanny followed her and the couple were seen arguing and crying before the three returned home. Lanny reported he fell asleep on the couch and was woken by Laura’s screams. An autopsy revealed several broken ribs and a brain injury. Cause of death was given as acute head injury. There was information that Larry had abused a child he had with another woman.

Smith’s finding: Noting that the original radiologist’s report observed two or three fractures, Smith said a review of evidence indicated a total of 14 fractures and other possible injuries. He said the cause of death was consistent with “blunt trauma,” not shaking.

Outcome: Lanny and Laura were discharged on all counts because “there was no evidence of motive, intent or exclusive opportunity to cause the injury that resulted in Taylor’s death.”

5. Tyrell

Date: Born Feb. 1, 1994; died Jan. 23, 1998.

Case facts: Tyrell’s father, Garth, was in jail for manslaughter and the whereabouts of his mother, Janette, unknown. He lived with Garth’s former partner, Maureen, and her two children. Medical reports said Maureen said Tyrell had been running around, jumped off a couch and fell, hitting his head. He was taken to hospital Jan. 19, 1998, after she couldn’t wake him. He was transferred to the Hospital for Sick Children, where he died. Cause of death was recorded as “herniation of brain stem ..... consistent with a severe shaking episode.” Maureen’s son told police she hit Tyrell “a lot.” Maureen was charged with second-degree murder.

Smith’s finding: Smith reportedly told police that the head injury was caused “by flat object — impact.” He testified that Tyrell did not show signs of “classic shaking” but couldn’t rule out the possibility. Smith noted a contusion or discolouration to the brain that was noted by another examiner, who disagreed with his opinion that “a household fall can result in death only when there is epidural hemorrhaging.”

Outcome: The charge against Maureen was withdrawn Jan. 22, 2001.


6. Dustin

Date: Born Sept. 9, 1992; died Nov. 18, 1992.

Case facts: Dustin lived in Belleville with his parents Mary and Richard. After an argument,
Mary spent the night at a friend’s home, leaving Dustin with Richard. When she returned, there was another violent quarrel and Richard left, taking Dustin and Mary’s daughter, who was not his biological child. Richard was later seen pushing a baby carriage. Dustin was in it, a witness said, “with foam (coming) out of his nose. He was white and his eyelids were blue.” The witness told police Richard shook Dustin, but not violently. A hospital radiologist reported injuries “strongly suggestive of a shaken baby.” Cause of death was given as respiratory failure and a traumatic brain injury.

Smith’s finding: Smith commented in his report that “In the absence of a credible explanation, this injury must be regarded as non-accidental in nature.” In testimony, he said, “Though I would prefer the explanation that it was a shaking-type injury, I cannot rule out the possibility that, in fact, he was stuck by some blunt object.”

Outcome: On April 21, 1995, Richard pleaded guilty to aggravated assault and was jailed six months.


7. Gaurov

Date: Born Feb. 11, 1992; died March 20, 1992.

Case facts: On March 18, the mother of a 5-week-old boy called 911 and said he had
stopped breathing. According to the father, he had been fed at 12:30 a.m. A half-hour later the father heard the baby cry and picked him up. He took several breaths, gasped, turned blue and went limp. The father tried to resuscitate him. Emergency services and Gaurov’s aunt and uncle arrived. The aunt shook him a couple of times to try to revive him. He was rushed to hospital with no heartbeat and not breathing. He was intubated and his heartbeat restored. After tests, he was transferred to the Hospital for Sick
Children. A CT scan found brain hemorrhaging consistent with shaken baby syndrome. On March 20 baby Gaurov died.

Smith’s finding: Smith listed cause of death as “head injury.” In his autopsy report he stated the baby had acute epidural hemorrhaging of the spinal cord and acute subdural hemorrhaging.

Outcome: Gaurov’s father was charged with second-degree murder on July 1, 1992. On Dec. 3, 1992, he pleaded guilty to criminal negligence causing death and was sentenced to 90 days.


8. Delaney

Date: Born Dec. 20, 1992; died May 23, 1993.

Case facts: Five-month-old Delaney lived with his mother, Olga Policarpo, in Woodstock, Ont. On the day before his death his mother had invited her relatives to her house to pray for help for her 2-year-old niece, who had liver and heart problems. Relatives later said they communicated with the Virgin Mary. Delaney was found dead the next day. Policarpo was arrested and taken to hospital, where doctors assessed her as being in a psychotic state.

Smith’s finding: The cause of death was listed as “asphyxia.” Smith told police the baby’s death was caused by compression or blunt trauma injury and there was evidence of hemorrhaging in the upper chest and lower neck. In a request for a skeletal survey of Delaney, he wrote: “Sudden death of baby while family was involved in cult-like activities.”

Outcome: Policarpo was charged with second-degree murder. While in hospital she told Susan Garton, a nurse at London Psychiatric Hospital, that the Lady of Guadeloupe “made me kill my baby.” She was found not guilty of second-degree murder but was convicted of infanticide.


9. Amber

Date: Born March 13, 1987; died July 30, 1988.

Case facts: Amber was born in Timmins, Ont. Her parents, Francis and Richard, left her in the care of S.M., a 12-year-old babysitter, on July 28, 1988. During the day the toddler fell down five stairs, the sitter said. Paramedics found the baby with no visible injuries and breathing irregularly. On July 30, 1988, she was pronounced brain dead. The cause of death was listed by the coroner as “cerebral edema due to head injury after an accidental fall.” An autopsy was requested due to “a high level of suspicion of foul play.”

Smith’s finding: Smith testified he believed Amber had been shaken to death. He told police there was no way the fall could have killed her. The final autopsy report was signed on Nov. 28, 1988, but Smith only cited a “head injury.”

Outcome: S.M. was charged with manslaughter on Dec. 15, 1988. She was acquitted on July 25, 1991. Smith testified Amber’s injuries “don’t fit those from a fall down stairs.” The judge ruled shaking wasn’t established to his satisfaction. S.M.’s father laid a complaint against Smith at the College of Physicians and Surgeons, which ruled Smith’s approach was acceptable.


10. Kenneth

Date: Born May 18, 1991; died Oct. 12, 1993.

Case facts: At the time of his death, the almost 2-1/2-year-old lived with his mother and stepfather, Rick, in Oshawa, Ont. Kenneth’s mother was still in high school in Scarborough when the baby was born. She came from “an abusive and dysfunctional family” and had problems with alcohol abuse and parenting. Kenneth had been in Children’s Aid Society care four times. He had repeated trips to the hospital for seizures, asthma, bumps, bruises and a broken leg. On Oct. 9, after an afternoon nap, Kenneth’s mother woke to find him twisted in his sheets and blankets and unable to breathe. She got him out and called 911. Paramedics found Kenneth without any vital signs. On Oct. 11 he was termed clinically dead.

Smith’s finding: In his post-mortem report Smith said the cause of death was asphyxia. He testified his findings from the autopsy were consistent with suffocation with a soft object or a plastic bag.

Outcome: Kenneth’s mother was convicted of second-degree murder in October 1995 and sentenced to life. While awaiting trial she gave birth to a son, which the CAS took away.

The known cases

Lianne Thibeault: Smith suggested Thibeault was responsible for the death of her 11-month-old son before another pathologist concluded the cause was undetermined.

Brenda Waudby: Because of Smith’s findings, that Waudby’s 21-month-old baby died of abdominal trauma that occurred hours, even days, before her death, Waudby was wrongfully charged. A babysitter later admitted beating the baby shortly before she died.

Anisa and Marco Trotta: After Smith’s pathology reports on the death of their baby were deemed unreliable, the couple, who already spent time in jail, were granted a new trial by the Supreme Court.

Louise Reynolds: After Smith concluded that her 7-year-old daughter’s injuries were consistent with stab wounds, Reynolds was charged with the death. It was later determined that her daughter was killed by a dog.

William Mullins-Johnson: Smith consulted on the case of Mullins-Johnson’s 4-year-old niece, determining she was strangled. After Mullins-Johnson spent 12 years in jail, Smith’s testimony was reviewed and he was acquitted last month.

Angela Veno and Anthony Kporwodu: Smith was criticized for “inexplicable tardiness” in filing reports after the couple was charged with killing their baby — charges later thrown out. Smith was cited for unwillingness to provide crucial evidence in other cases as well.

Sherry Sherrett: Based on Smith’s findings, Sherrett spent six months in jail for the death of her 4-month-old. Another pathologist later determined the baby died of natural causes.

Autopsy of a flawed career

TheStar.com - News - Autopsy of a flawed career Pathologist became `bigger than his role,' lawyer says

April 20, 2007
Isabel Teotonio Staff reporter

World-renowned forensic pathologist Dr. Charles Smith spent decades building a stellar career out of the unenviable task of examining the broken, bruised bodies of dead children.

Smith's passion for both his job and for children proved a powerful combination that made him one of Canada's undisputed experts in determining when and how children died under suspicious circumstances.

But some say his career began to slump when he crossed the line from scientist to crusader and his objectivity narrowed to tunnel vision. The results, they say, were botched autopsies and shoddy work that implicated innocent people.

"He was certainly on a crusade," recalled lawyer Jim Hauraney, who represented Brenda Waudby, charged with killing her 21-month-old daughter, Jenna, in 1997 on the basis of Smith's conclusions.

"I think he became bigger than his role was. I think he became more prosecutorial," said Hauraney, adding the former pathologist at the Hospital for Sick Children lost his objectivity when reviewing the Waudby case. "He was very reluctant to give other opinions any (weight)."

The murder charge against Waudby was eventually withdrawn after medical experts disagreed with Smith's evidence. The child's babysitter was later convicted of killing Jenna.

But Waudby's wasn't the only case that raised alarm bells. In June 2005, Ontario's chief coroner Dr. Barry McLellan expressed concern over Smith's findings in several criminal cases and ordered an independent review of 45 autopsies dating back to 1991.

Yesterday, McLellan released those findings, saying the international experts had concerns in 20 of the cases and disagreed with conclusions reached in 13 cases where people were convicted of criminal offences – one of whom is still behind bars.

Smith has said he was born at the Salvation Army's Grace Hospital in Toronto and given up for adoption at three months. He spent years trying to find his biological mother, but when he finally tracked her down by phone, on her 65th birthday, she hung up on him.

Smith spent his childhood living across Canada and in Germany because his adoptive father was in the Canadian Armed Forces. He graduated from medical school at the University of Saskatchewan in 1975. He completed his training in pathology at the University of Toronto and was certified as an anatomic pathologist, someone who studies cells, tissue and organs to diagnose diseases.

In 1981, he was hired at Sick Kids where he studied tissue samples and conducted autopsies on children who had died of natural or accidental causes. Within years, he was performing autopsies on children who had met suspicious ends.

In 1991, when the coroner's office opened a special unit at the hospital to deal only with suspicious deaths of children, Smith was named the director.

In his off hours, Smith could be found on the hobby farm he shared with his wife and their two children just north of Newmarket. He also found solace in religion. In 2005, he told the Star he worshipped with the Christian and Missionary Alliance, a Baptist-like group that filled him with the belief he had a purpose in life: to give answers to parents who lose babies. "I've got a thing about people who hurt children," he said.

Smith's career was already unravelling when he was reprimanded in 2002 by the Ontario College of Physicians and Surgeons for his work on three suspicious death cases.

Smith resigned from Sick Kids in 2005 and moved to Saskatoon to accept a yearlong contract as a surgical pathologist, but was fired four months later. He was reinstated by an appeals tribunal but was unable to practise because his licence had expired.