Dr. Charles Smith
Updated: Wed Apr. 25 2007 7:28:21 PM
TORONTO — Ontario's public inquiry into at least a dozen possible wrongful convictions in cases involving questionable pathology will be headed by an Appeal Court judge and assisted by a former coroner who inspired TV's 'Da Vinci's Inquest.'
The Ontario government's probe into the work of former Toronto pathologist Dr. Charles Smith will be led by Justice Stephen Goudge of the Ontario Court of Appeal, Attorney General Michael Bryant announced Wednesday.
"Justice Goudge will deliver a report with recommendations within a year from today, the goal of which is to enhance public confidence in pediatric forensic pathology," Bryant told the legislature.
"The commissioner's job is to get to the bottom of what happened and to make recommendations to prevent it from ever happening again."
The work will be aided by Senator Larry Campbell, a former chief coroner of British Columbia and former Vancouver mayor. Campbell, whose work was profiled in the CBC-TV series 'DaVinci's Inquest,' will chair an expert panel of scientists and medical professionals to help the inquiry.
The province called the inquiry after an expert panel questioned Smith's findings in 20 cases, 12 of which resulted in criminal convictions and one in a finding of not criminally responsible.
"Miscarriages of justice are tragedies for our justice system and for the individuals affected," said Bryant.
"If there has been any miscarriage of justice amongst the 13 convictions in which the chief coroner's review has identified problems with Dr. Smith's findings . . . I will and Crown attorneys will do everything in our power to set it right."
But Bryant said the issue of compensation for people who may have been wrongly convicted would be addressed separately.
"The decision by past governments was to separate off inquiry process from compensation issues," he said.
"In some cases, as with the Walkerton and also with (Maher) Arar, compensation issues were actually dealt with before the inquiry was finished, and that's certainly a possibility in this case as well."
The lawyer for Louise - who was recently granted the right to sue Smith as it was his evidence that helped put her behind bars for two years awaiting trial for her daughter's death - said Bryant should have addressed the issue of compensation.
"The inquest itself will not include anything about compensation, and I don't think he's saying anything to anybody except wait and see," Peter Wardle said.
"So that doesn't give anybody in my client's position any hope at all."
Smith initially determined Louise's seven-year-old daughter Sharon died of multiple stab wounds in 1997, but a later autopsy found the girls had been mauled by a pitbull.
Wardle said the overall terms of reference for the inquiry fell far short of what was expected.
"We were hoping for something much more wide-ranging that would look at the individual cases and would allow the commission to deal with issues of individual pain and suffering," he said.
"We are underwhelmed would be a good way of putting it."
Bryant defended the terms of reference, and said Justice Goudge would be able to look at individual cases during his inquiry.
"It's absolutely open to the commissioner to address particular cases . . . to get to the bottom of the facts in any way, shape or form that he sees fit," he said.
"What he doesn't have jurisdiction over is to void a conviction, to make a finding of a miscarriage of justice, to make a finding of a conviction or an acquittal."
Opposition Leader John Tory said the compensation issue must be addressed by the government.
"These people have suffered unspeakable injustice in their lives, and somebody has to deal out the compensation," said Tory.
"I don't know why it wouldn't have been appropriate to have it dealt with all in one place by one independent person."
NDP Leader Howard Hampton said the government should not force people who may have been wrongly convicted to sue in order to get compensation.
"There are all kinds of people who can't afford to access our courts in terms of civil remedies," said Hampton. "But most of all, I think what these people need is a mechanism whereby they can have their name cleared."
Bryant said the province had already taken steps to help some people who were jailed on evidence given by Dr. Smith.
The Crown agreed Tuesday to support a bail application for Marco Trotta of Oshawa, Ont., who was convicted of second-degree murder in 1998 for the death of his infant son.
Bryant also moved Tuesday to allow Sherry Sherrett of Trenton, Ont., who spent a year in prison for the 1996 death of her infant son, to appeal her conviction for infanticide to the Ontario Court of Appeal.
The inquiry will look into Smith's work between 1991 and 2001, but Bryant said the province's chief coroner, Dr. Barry McLellan, was conducting a review into the former pathologists work between 1981 and '91.
Tuesday, December 15, 2009
DATE: Nov 8, 09:30 PM
By John Ward
THE CANADIAN PRESS
OTTAWA — A Toronto couple convicted in the death of their infant son on the testimony of a discredited pathologist has won a new trial.
The Supreme Court of Canada ruled 9-0 on Thursday that Marco and Anisa Trotta should have a new trial because the testimony of Dr. Charles Smith was discredited by new evidence offered by two other doctors — including Dr. Michael Pollanen, the chief forensic pathologist for Ontario.
Marco and Anisa Trotta were convicted in 1998 in the 1993 death of their eight-month-old son Paolo.
Marco was sentenced to life with no chance of parole for 15 years for murder and Anisa was given five years for negligent homicide and failure to provide the “necessaries of life.”
She has served her sentence and Marco was released on $100,000 bail last May after spending nine years behind bars.
In the first autopsy in Paolo’s death, Dr. David Chan could not nail down a specific cause of death, but suggested it might have been due to sudden infant death syndrome.
But after the couple’s son Marco Jr., was taken to hospital with a broken leg a year later, police reopened their investigation. Paolo’s body was exhumed and Smith claimed to have found evidence of longstanding abuse leading to death from a skull fracture.
Smith’s evidence has been called into question in several other serious cases.
While the Ontario Court of Appeal upheld the convictions, the defence took new evidence from the other doctors to the high court.
“Essentially, the fresh evidence . . . discredits the evidence given at trial by Dr. Charles Smith,” Justice Morris Fish wrote.
The Crown had accepted that Marco’s murder conviction could not stand, but argued he was still guilty of manslaughter and that the other charges were still valid.
Fish said all the charges were tied together at trial and, given Smith’s “unreliable” evidence, they all fall together.
“We think it neither safe nor sound to conclude that the verdicts on any of the charges would necessarily have been the same but for Dr. Smith’s successfully impugned evidence,” Fish wrote.
He said trying to guess the impact of Smith’s evidence “would amount to an unwarranted exercise in appellate speculation.”
“Plainly, then, if a new trial must be had, as we think it must, the preferable course is to order an untainted trial on all counts.”
Marco Trotta was released on bail after a report from Dr. Barry McLellan, Ontario’s chief coroner, concluded that Smith — once thought to be the country’s leading child pathologist — probably erred in 20 cases between 1991 and 2002 in which people were charged with killing children.
The cases included a dozen convictions and the province called an inquiry, which is to begin this month.
The province supported the wrongful conviction of William Mullins-Johnson, who spent 12 years in jail for the death of his four-year-old niece, Valin Johnson, after other experts concluded the child died of natural causes.
Sherry Sherrett of Trenton was convicted on infanticide in the 1996 death of her son, Joshua, on Smith’s testimony and was jailed for a year. She is seeking to clear her name.
By Helen Burnett | Publication Date: September 2007
Ontario’s public inquiry into pediatric forensic pathology stems from a coroner’s office review into the work of one controversial pathologist, but its findings could have implications across the board for all scientific expert evidence, lawyers say.
The inquiry, headed by Ontario Court of Appeal Justice Stephen Goudge, plans to make recommendations to restore and enhance public confidence in pediatric forensic pathology in the province and its future use in both investigations and criminal proceedings. It comes on the heels of the results of a 17-month review by the Ontario Chief Coroner’s office of 45 criminally suspicious and homicide cases where Dr. Charles Smith, a forensic pathologist who carried out autopsies and provided opinions on cases involving pediatric deaths in the province until 2002, consulted or performed the autopsy.
Before 2002, Smith was known as one of the leading experts in cases involving pediatric forensics, but he has not worked with the coroner’s office since then, leaving Toronto in 2005 to practise in Saskatchewan. He is now reportedly living in British Columbia and has also undertaken not to practise forensic pathology in Ontario before the inquiry is completed next April.
The coroner’s review, ordered in 2005, was the result of general concern expressed about some of the conclusions reached by Smith in a number of criminal cases in which he was the primary or consulting pathologist. There were also concerns about the safeguarding of tissue samples from autopsies, after an audit earlier that year at Toronto’s Hospital for Sick Children located a previously unaccounted for tissue sample in the desk drawer of Smith’s office.
The aim of the review was to determine whether the conclusions reached by Smith in his autopsy, consultation reports, or testimony could be supported by the information and materials available.
However, in April 2007, the results of the review identified specific concerns in 20 of the 45 reviewed cases involving the pathologist, ranging from relatively minor to potentially more serious issues. Among those 20 cases, 12 had resulted in criminal convictions and one finding of not criminally responsible. Following the results of the review, Ontario Attorney General Michael Bryant announced a full public inquiry into the matter.
Louis Sokolov, a lawyer with Sack Goldblatt Mitchell LLP in Toronto, will be representing the Association in Defence of the Wrongly Convicted (AIDWYC) at the inquiry. He says that, while there will always be expert scientific evidence in criminal trials and it will always be accorded considerable weight, the danger materializes when there is uncritical acceptance of what the expert has to say simply by virtue of the fact that they are an expert.
One thing AIDWYC hopes will come out of this inquiry is a heightened level of scrutiny by all of the players in the justice system to not take what somebody says as a given just because of the number of qualifications they have. “We would hope and expect that the conclusions and recommendations of Justice Goudge will have wider implication into the acceptance of expert scientific evidence in general,” he says.
Broadly, says William Trudell, president of the Canadian Council of Criminal Defence Lawyers, the inquiry is important and timely, as criminal justice becomes more complex and more experts find their way into the courtroom, not only from the medical field but right across the board. “I’m not looking for this inquiry just to be helpful in relation to Charles Smith, this inquiry is going to help all of us because there have been too many wrongful convictions,” he adds.
Historically, he says, one of the problems is that there has been too much deference shown to experts, especially pathologists and medical experts, too much acceptance of what they say at the front end of the system. As well, lawyers have been shy to challenge them. “This expert comes with qualifications and so, in some cases, you accept what this expert has to say because they are experts, they have been recognized and we don’t think that they might have tunnel vision ,and we don’t think that they might be prejudiced, and we don’t think that they might need to sort of look at both sides more carefully,” he says. “I think that this inquiry will be really important to shine a light on the use of experts, especially in some respects the use of experts in sensitive areas where we’re afraid to ask the question, they must be right,” adds Trudell, a Toronto defence lawyer.
There is always a concern about expert evidence, especially relating to different scientific fields, says Justice John Vertes, president of the Canadian Superior Courts Judges Association, because of the value that judges and juries place on the testimony of expert witnesses. He adds that as there is often a certain aura of scientific certainty surrounding this type of evidence “the qualifications of the expert, the methodology that any expert uses, the reliability of the science itself . . . these are the sort of things that have to be looked at very closely, because when an expert witness gets up to testify and reads off his or her credentials, then obviously this carries great weight with a judge and, particularly, a jury.”
Anything that would help to either set some guidelines or clarify the role of expert witnesses in a courtroom would be welcome, says Vertes, who sits on the bench of the Northwest Territories Supreme Court. Although, he adds, he is not sure the Goudge inquiry will be doing that. Sokolov says AIDWYC wants to see appropriate checks and balances put in place at all stages of the process. “So that in those instances where you have what may amount to be unreliable evidence, you have systems in place within the coroner’s office, within the pathologists office, within the Crown attorney’s office, among the defence bar as well as the judiciary to catch this unreliable evidence before it can result in wrongful convictions,” he says.
Trudell notes that, historically, defence counsel has not cross-examined these experts properly, reluctant to forget that they are not just experts, but human. He says, however, that chances are the more experienced lawyers are, the less blinded they are to experts. “The criminal justice system is a human experience. If you get somebody who comes in to testify and everybody agrees that they’re superhuman, then we’ve got a problem,” says Trudell.
The inquiry, says Trudell, will be important in order to put a human face on those providing expert evidence. He says: “Just like we do everything else, we have to question them and keep them on their toes and make sure that they’re not prejudiced, make sure that they see the larger issue, and make sure that they’re open to new ways of thinking and changes and also . . . that they are not just the Crown’s expert.”
The cases reviewed by the chief coroner involving prosecutions have not been named and are not part of the public inquiry, but are being handled separately by the Ministry of the Attorney General. But the stories of several of those convicted in part due to Smith’s evidence came out in the days and weeks following the release of the report. Shortly before the inquiry was called, Bryant announced that Crown counsel would be consenting to a defence bail application to the court of appeal in the case of Marco Trotta, convicted of second-degree murder in 1998 in the death of his eight-month-old son. The case is heading to the Supreme Court of Canada later this year. Bryant also indicated consent to an application for an extension of time for Sherry Sherrett, convicted in the death of her infant son, to appeal her conviction. In March, the Ontario Court of Appeal ruled that Louise Reynolds of Kingston, Ont., could take a suit against Smith to court after she was wrongly charged in the death of her daughter in 1997 and spent two years in prison on the basis of Smith’s findings regarding the cause of death.
Most recently, in July, federal Minister of Justice Rob Nicholson referred the murder conviction of William Mullins-Johnson to the Ontario Court of Appeal, after saying he was satisfied there was a reasonable basis to conclude that a miscarriage of justice likely occurred in Mullins-Johnson’s 1994 first-degree murder conviction in the death of his four-year-old niece.
AIDWYC says during trial, Smith’s opinion that the child had been sexually assaulted at the time of death, which contradicted defence evidence that the child had died of natural causes, was essential to the jury’s verdict of first-degree murder. A misplacing of crucial evidence in the case prompted the audit of tissue samples from autopsies performed at the Hospital for Sick Children before the samples were found on Smith’s desk. In September 2005, Mullins-Johnson’s counsel applied to the minister of justice for a review of the murder conviction, after which he was granted bail pending the minister’s decision.
Cindy Wasser, a criminal lawyer with Toronto firm Wasser McArthur LLP, says, “I think what we’ll find in this case is that this was pretty specific to what happened in that office surrounding him, that there was no one really with a knowledge base that could watch and supervise and question.” Going forward, she says, people will have their eyes open and ask about the qualifications of the expert, making sure that the post-mortem report has been properly reviewed by a committee of peers. Defence counsel in cases where there is an odd cause of death should have their own expert review it. She adds, however, that she is not sure if people are going to become more aware from the inquiry if they aren’t already aware.
But Vertes says while expert evidence can be questioned in trial, it can often be difficult for the defence to find the resources to challenge this type of evidence because of the cost. “I think this is one of the real key areas where the defence is at a distinct disadvantage,” he says.
One change already underway is to create a list of forensic pathologists willing to do defence work, says Wasser, and there will be more over time. “People should be aware by now that you have to have your own expert review any kind of Crown expert material if there’s really an argument,” she says. The Ontario Coroner’s Office says it has learned lessons as a result of the review and has already made some changes, such as having two review committees focusing exclusively on complex pediatric deaths and forensic autopsies on criminally suspicious cases, homicides, and cases going to inquest now undergoing a standardized audit process.
A two-day course has also been developed for pathologists who provide expert testimony in court. The coroner’s office says these steps have been and will continue to be shared with other jurisdictions through educational courses and presentations. Wasser adds that pathologists will also hopefully be getting their own forensic pathology program in Canada. However, she says the profession has had its eyes opened, but it may not just be because of Smith, but also other experts in the past. “That then begs the question: if this has happened before, and it happened again, why does it keep happening . . . and at what point are we going to be safe to say it won’t happen again?”
Dr. Charles Smith
TORONTO — While the questionable forensics work of a former Ontario pediatric pathologist has captured headlines, raised the spectre of numerous wrongful convictions and forced a public inquiry, experts say much is being done to mitigate mistakes and improve standards in the grisly field.
Vancouver's Dr. John Butt - the lone Canadian on a panel of international experts that cast serious doubt on at least a dozen autopsies conducted by Dr. Charles Smith - said Canada is only now catching up to the likes of the United Kingdom and the United States when it comes to properly training those in the field.
"I have a qualification in forensic pathology because they had an examination when I took my qualifications (in Great Britain) in the 1970s, but that hasn't come along in Canada very quickly," Butt said.
"I think one of the reasons for it was that there were not that many people who were practising, but there were certainly people lobbying for it back in the 1980s - and certainly in the early 1990s."
According to this country's Royal College of Physicians and Surgeons, forensic pathology was added as a subspecialty to a list of 62 recognized medical disciplines in 2003.
CEO Andrew Padmos said the college is in the process of finalizing educational standards and expects some 17 Canadian medical schools will apply to offer a one-year forensic pathology program as early as July 2008.
Still, Butt notes there are great inconsistencies between provinces and suggests a set of national standards and oversight is imperative.
On April 19, Dr. Barry McLellan, Ontario's chief coroner, revealed that a panel of experts took issue with Smith's work in 20 of 45 child death cases dating back to 1991 - 12 of which resulted in criminal convictions and one in a finding of not criminally responsible.
Overshadowed in the myriad of shocking stories of possible wrongful convictions that followed was a variety of "lessons learned" by the coroner's office, which is charged with investigating some 7,000 sudden or unexpected deaths of children and adults every year.
In his report, McLellan noted that all deaths involving children under the age of five are now subject to a review by a committee to ensure consistency. Complex cases, including ones in which the Children's Aid Society is involved, receive particular scrutiny.
Guidelines for dealing with criminally suspicious and homicide cases have also been updated to the extent that 11 of the Smith cases reviewed appear to have been completed with less information than what is currently required, McLellan noted.
However, McLellan said the "deficiencies" identified likely didn't impact on Smith's conclusions in those cases.
"Regardless, there is need for better communication between coroners and pathologists," McLellan wrote in his report, noting that telephone, or in person, contact between coroners and pathologists will soon be policy for all criminally suspicious cases of deaths of children under five years old.
Elisabeth Widner, co-president of the Association in Defence of the Wrongly Convicted, says she hopes the public inquiry into Smith's work will recommend, among other things, the need for a "team approach" to conducting autopsies and a review process.
The close relationship between scientific experts and the police is a systemic problem which needs to be addressed, Widner added.
"Many times experts are able to maintain their independence and do their work very appropriately," she said.
"But we have to wonder if there isn't any tunnel vision that might arise out of this close relationship between the so-called scientific experts, who are supposed to be somewhat impartial, and the police that actually investigate a case."
Still unsatisfied with the public inquiry's terms of reference announced Wednesday, Widner said her group will continue pushing Ontario Attorney General Michael Bryant to broaden the scope to include individual cases.
The group was dismayed when Bryant failed to immediately call an inquiry into Smith's work after the expert panel's findings where made public on April 19.
The following day, Premier Dalton McGuinty vowed that an inquiry would be held and within days Bryant took action on a number of cases.
Sherry Sherrett, a Trenton, Ont., woman who spent a year in jail after she was convicted, in part on Smith's evidence, of killing her four-month-old son was granted permission to take her case to the Ontario Court of Appeal.
The Crown also agreed to support a bail application for Marco Trotta who was convicted of second-degree murder in the 1998 death of his infant son.
On Friday, Bryant announced that the case of William Mullins-Johnson likely was a miscarriage of justice and that he should be acquitted.
The Sault Ste. Marie, Ont., man spent 12 years in prison for sexually assaulting and murdering his four-year-old niece and was released after evidence surfaced suggesting she died of natural causes.
A Canadian pathologist whose expert testimony led to wrongful convictions for several people accused of killing small children, including one man who spent a decade in jail, said Monday that he was "truly sorry" for his mistakes.
A public inquiry into the work of Dr. Charles Smith pathologist, was read a statement in which he apologized for errors in analyzing 20 cases of child deaths. Twelve led to convictions, some of which have been thrown out by courts.
Smith did not appear as the government-appointed commission opened its inquiry, and his statement was read by his lawyer, Niels Ortved.
"Dr. Smith wishes to publicly acknowledge ... that in the 20 years that he performed autopsies at the direction of the Office of the Chief Coroner of Ontario, he made a number of mistakes for which he is truly sorry," Ortved said.
"In retrospect, he understands that in some 20 cases which form the basis of this inquiry, his work, while to the best of his ability at the time, was simply not good enough in certain circumstances."
Smith has not been charged with any crimes, and is not expected to testify before the inquiry until January. He stopped performing autopsies in 2001 after several cases in which he was involved fell apart amid questions about the quality of his work.
The commission has no authority to punish Smith or evaluate past convictions. It is reviewing Ontario's pediatric forensic system and will recommend changes in order to restore public confidence amid accusations that Smith repeatedly made errors that tore families apart.
Though Smith acknowledged he made mistakes, he claimed the errors were "made honestly and without any intention to harm or obstruct pediatric death investigations in which he was involved."
The probe was ordered by Ontario's provincial government seven months ago after an investigation of 45 child deaths involving autopsies or expert testimony from Smith found the pathologist made questionable findings in 20 cases dating back to 1991.
In one case, Smith's testimony played a key role in the conviction of a man who spent 12 years in jail for sexually assaulting and strangling his 4-year-old niece. Evidence later surfaced that showed the girl died of natural causes, and William Mullins-Johnson was exonerated last month.
Mullins-Johnson told television that Smith's actions destroyed his life and that he hoped the pathologist will face criminal conviction.
In another case, a mother was charged with murder after Smith testified at a pretrial
hearing that her daughter died of multiple stab wounds. A later autopsy found the girl was mauled by a pit bull. The mother, Louise Reynolds, spent two years in jail awaiting trial before she was exonerated.
Smith's testimony also led to the conviction of a mother who spent a year in prison for the 1996 death of her infant son. Sherry Sherrett is appealing her conviction for infanticide after another pathologist determined the boy died of natural causes. After Sherrett was charged, the province put one of her other children up for adoption.
Just last week, Canada's Supreme Court ordered a new trial for a couple convicted in the death of their infant son because Smith's testimony was discredited by new evidence from two other doctors.
tr.v. dis·cred·it·ed, dis·cred·it·ing, dis·cred·its
1. To damage in reputation; disgrace.
2. To cause to be doubted or distrusted.
3. To refuse to believe.
|Apr. 24, 2007|
Provided by: The Canadian Press
Written by: TOBI COHEN
TORONTO -Ontario's chief prosecutor moved Tuesday to address the cases of two people who may have been wrongly convicted of killing their children based, in part, on questionable pathology work that is now the subject of a public inquiry.
Sherry Sherrett, who spent a year in prison for the 1996 death of her infant son, was given permission to take her case to the Ontario Court of Appeal amid mounting pressure from legal advocates and a new autopsy suggesting the four-month-old likely died of natural causes.
Sherrett's case was among 45 child autopsies reviewed by an expert panel after concerns were raised about Dr. Charles Smith, the pathologist who conducted them.
A review by the Ontario coroner's office questioned Smith's finding in 20 autopsies, 12 of which resulted in criminal convictions and one in a finding of not criminally responsible.
The province has called a public inquiry into the matter.
Attorney General Michael Bryant said officials wrote Sherrett's lawyer Tuesday to confirm that the government would allow her to appeal her conviction.
"From our perspective, it's crystal clear as to the Crown's position: We're here to act as expeditiously as possible, but there is a process to follow," Bryant said.
Bryant said the Crown has also agreed to support a bail application for Marco Trotta, who was convicted of second-degree murder in 1998 for the death of his infant son. Trotta is the only person convicted in part on Smith's evidence who is still behind bars.
Bryant said the Crown consented to Trotta's application for release while his case is appealed to the Supreme Court of Canada.
"Just in the last couple of hours, Crown counsel has consented to the defence application for bail. It'll ultimately be for the court to decide whether or not to release," he said.
"It's another example of the Crown responding as expeditiously as possible once defence file their papers."
Bryant said he would let people know Wednesday about any plans to compensate possible victims when he announces the terms of reference for the public inquiry and the name of the judge who will lead the investigation.
"We're very happy that the attorney general has decided to take action that we think is highly appropriate in the circumstances of these cases," said Paul Copeland, co-president of the Association in Defence of the Wrongly Convicted. The consortium of lawyers has agreed to represent nine of the 13 people it alleges were unfairly prosecuted because of Smith's work.
Copeland suggested the scathing coroner's report and reaction to it has likely prompted the province to expedite the cases, but added he's not one to criticize the government when it's doing the right thing.
Should the province decide to compensate victims, he expects the one lawsuit currently before the courts and any subsequent ones that may be forthcoming against Smith won't proceed.
"If the province actually does an adequate job of compensating, I'm not so sure people are going to spend their time and energy chasing after Dr. Smith," Copeland said.
An Ontario pathologist made questionable conclusions of foul play in 20 child autopsies, 13 of which resulted in criminal convictions, Ontario's chief coroner says.
Coroner Barry McLellan presented these findings Thursday, based on a review of 45 child autopsies conducted by Charles Smith between 1991 and 2002. All 45 autopsies concluded the cause of death was either homicide or criminally suspicious.
A team of international forensic experts is concerned over autopsies performed by Dr. Charles Smith.
The review, conducted by a team of international forensic experts, raised concerns with 20 of the 45 autopsies. Some concerns were minor, but several were "serious," McLellan said.
"I am very surprised with the overall results of the review, and concerned," he said.
"In a number of 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."
The results of the review are being shared with defence and Crown attorneys involved in all criminal cases, McLellan said.
Michael Bryant, Ontario's attorney general, said in light of the review, his first priority will be to deal with the criminal convictions. Crown prosecutors are ready to help if cases need to be reopened, he said.
One of the 13 people convicted is still in jail.
"Errors in 20 pediatric forensic pathology reports over 10 years is totally unacceptable," Bryant said. "Totally unacceptable."
The review was launched nearly two years ago after several autopsies Smith performed were called into question. At the time, Smith was considered a leading expert on pediatric forensics at Toronto's Hospital for Sick Children.
McLellan noted that the review only covered Smith's work dating back to 1991, a date picked arbitrarily.
"There may well be cases prior to 1991 which raise similar concerns," McLellan said, noting Smith started performing autopsies in 1981.
He said his office will work with the attorney general's office to identify all autopsies Smith performed. Anyone convicted as a result of those autopsies can ask to have Smith's findings reviewed, McLellan said.
Stigma of accusation never leaves: freed man
William Mullins-Johnson, who was convicted of murder in the wake of a Smith autopsy, said even when errors are pointed out and sentences are overturned, the stigma of the accusation remains.
Mullins-Johnson spent 12 years in jail after being convicted of killing his four-year-old niece. He was released last year when evidence surfaced showing that Smith had lost tissue samples that could have proved the girl died of natural causes.
"Something was made out of nothing and my life was taken from me," Mullins-Johnson said.
The Association in Defence of the Wrongly Convicted, an advocacy group, is calling for a full public inquiry into Smith's work.
In 2005, Smith moved to Saskatchewan to work for the Saskatoon Regional Health Authority. This past February, he was fined and reprimanded by the Saskatchewan College of Physicians and Surgeons after he pleaded guilty to a charge of unprofessional conduct.
The college said he didn't disclose that he was the subject of an investigation in Ontario when he applied for a licence to practise in the province.
Smith is now believed to be living in British Columbia.
Dr. Charles Smith
Updated: Tue Nov. 13 2007 12:14:03
The Canadian Press
TORONTO — Discredited former pathologist Dr. Charles Smith was still performing autopsies for Ontario's chief coroner a year after he asked to be excused from those duties, a public inquiry heard Tuesday.
Smith, at one time a leading pediatric forensic expert in Canada whose work has since come under a cloud of suspicion, wrote in January 2001 to then-chief coroner Dr. James Young asking to be excused from performing all coroner's autopsies.
The letter, which also asked Young to arrange an external review of Smith's work, came after charges against Louise, accused in the 1997 death of her seven-year-old daughter, were dropped.
Smith concluded that Louise stabbed her daughter Sharon 80 times with a pair of scissors, but the charges were withdrawn after other pathologists concluded the girl was mauled by a dog.
In 2002, a year following the letter, Smith was still performing autopsies -- but not in homicide or "criminally suspicious'' cases, former Ontario chief coroner Dr. Barry McLellan said Tuesday.
However, Smith did perform one ''criminally suspicious'' case involving dehydration following his letter, McLellan said.
"The autopsy was done under circumstances where, as I understand it, another pediatric pathologist could not be found at the time,'' McLellan said.
"It was felt appropriate after that the case be reviewed and I assisted with identifying someone to review the case and, at my request, the case was reviewed.''
However, that case was not among 20 of the 45 child death cases Smith had handled since 1991 which came under question by an expert panel. Of those 20 cases, 12 resulted in criminal convictions, while one ended with a finding of not criminally responsible.
The panel's findings, which raised serious doubts about opinions given by Smith, prompted the province to call the public inquiry to examine the role played by pediatric forensic pathology in the criminal justice system since 1981.
Smith, who has managed to remain out of the public eye since the expert panel made its conclusions, surprised the inquiry Monday by offering an apology for the "mistakes'' he made over two decades performing autopsies on children -- findings which led the courts to toss out one conviction and a number of criminal charges.
In a statement read by his lawyer, Smith acknowledged that he made a number of mistakes, but that they were made without any intention of obstructing the investigations in which he was involved.
The public hearings began Monday with an expert panel and are expected to take about three months, with Smith due to testify in late January.
Tuesday's hearing focused on the testimony of McLellan and Dr. Michael Pollanen, Ontario's chief forensic pathologist.
Led by Justice Stephen Goudge, the inquiry is expected to report his findings and make recommendations on restoring confidence in the pediatric forensic system in April.
Dr. Charles Smith
Updated: Thu Nov. 29 2007 16:30:58
TORONTO — Ontario's former chief coroner expressed remorse Thursday for his repeated failure to act on a judge's scathing criticism of pediatric forensic pathologist Dr. Charles Smith, whose evidence led to several wrongful prosecutions involving the deaths of infants.
Testifying at a judicial inquiry, Dr. James Young admitted that he essentially blew off opportunities to take a serious look at criticism that came from a judge presiding over the case of a Grade 6 student who was charged with killing a baby.
"None of them stuck with me,'' Young, who was Ontario's chief coroner from 1990 until 2004, told the inquiry. "I regret it deeply but I can't go back and change history.''
In 1988, 16-month-old Amber, of Timmins, Ont., died while in the care of her 12-year-old babysitter, S.M., who maintained the child had fallen downstairs.
The death came at a time when still-controversial "shaken baby syndrome'' was working its way into forensic consciousness, and Smith, who was deemed an expert, concluded that Amber died from brain injuries caused by severe shaking.
Nine other experts disagreed.
In acquitting S.M. in 1991, Justice Patrick Dunn tore a strip off Smith, who had worked with other pathologists at the Hospital for Sick Children in Toronto on the case.
Dunn attacked Smith on 16 points, including his failure to consider any other possibilities for the cause of death, and for concluding that Amber had been shaken to death even before performing the autopsy.
Young, who is currently a special adviser to the federal deputy minister of public safety, said no one ever sent him the judge's written ruling.
However, commission counsel Mark Sandler produced a complaint letter written in 1999 by the father of a woman accused of killing her son based on Smith's opinion.
The letter, which Young called "astoundingly accurate,'' detailed Dunn's criticism of Smith in the Amber case.
"I regret -- I regret deeply -- that I didn't read this, it didn't register, and it didn't signal something in me,'' Young said of the letter.
"I don't think I read it.''
Nevertheless, he wrote back to say he had given detailed consideration to the complaint.
Young also testified that the coroner's office has no way of tracking cases that end up in court.
"You see a weakness there?'' Justice Stephen Goudge interjected.
Young responded that it would be a "monumental feat'' for the coroner's office, which has enough on its plate already, to track so many cases.
"If we're satisfied that the Crown seems happy and things are running along, we're not paying attention,'' Young responded.
"We're moving on to tomorrow's problems.''
William Mullins-Johnson, who spent a dozen years in jail for raping and suffocating his four-year-old niece based Smith's faulty pathology, was contemptuous of Young's explanation.
"You're sent letters, you're sent complaints, you're sent judgments from courts, and nothing is triggering?'' Mullins-Johnson said.
"You can't explain that away with, `Oops, I just wasn't paying attention,' or, `Oops, it wasn't my responsibility.' It was his responsibility.''
While he did not elaborate, Young did say that Smith told him some time after the acquittal that the judge had expressed the view that had he known more about shaken baby syndrome, he would have convicted S.M., whose full name is covered by a publication ban.
Commission counsel indicated that Dunn maintains he never expressed any such view.
Dr. Charles Smith
Updated: Fri Nov. 30 2007 12:42:02
TORONTO — Forensic pathologist Dr. Charles Smith made bad findings, was chronically late issuing reports, misplaced evidence, and changed his opinions at the last minute, but Ontario's chief coroner took little action even though the problems were repeatedly brought to his attention, an inquiry heard Friday.
Smith's poor procedures and faulty opinions are blamed for several criminal prosecutions against people wrongly accused of killing babies or children between 1991 and 2001.
"I was aware of the general concerns but I can't recall specifics,'' Dr. James Young told commission lawyer Mark Sandler at one point.
"I just knew there were a lot of problems getting reports out of him.''
In one case, Smith decided a skull fracture was the result of abuse, where another expert later determined it was the result of the autopsy itself.
As a result, in early 1999, years after complaints about Smith first began surfacing, Young finally called the pathologist to a formal meeting.
"I discussed with him that I was concerned that his report had gone too far and that he had viewed abuse essentially where there was not good evidence that it existed,'' Young told Commissioner Stephen Goudge.
Young, who was chief coroner from 1990 to 2004, also said he impressed on Smith the need to be conservative in his findings, rather than be on "the leading edge'' of pathology.
"He didn't argue. He didn't debate with me.''
The office of the chief coroner soon issued a memo on the "pitfalls'' of pathology but Smith, who worked at Toronto's Hospital for Sick Children where problems with him were well known, continued his pediatric forensic work for another two years.
Young, who helped lead Ontario's response to the SARS crisis in 2003 and to the huge blackout in August of that year, stressed he was not Smith's employer.
He insisted he "wasn't aware of the issues around the quality'' of Smith's pathology although he did speak informally to him on a few occasions in the 1990s about his tardiness.
Young also defended Smith in the case of a mother wrongfully accused of killing her child in 1997 based on his view of when the injuries occurred.
"I'm not suggesting that Dr. Smith's opinion is correct,'' said Young, who at times grew testy with Sandler.
"But he is not totally wrong.''
The woman's father, who spent his life savings to have his daughter exonerated, wrote a detailed complaint to Young in early 1999 outlining the numerous errors Smith had made.
Young's response was general in nature because, he said, "one letter leads to 50 other letters.''
"You have to put it in the context of what one person sees or interprets versus what another person sees or interprets,'' Young said.
"That's why we have experts and that's why we have differing points of view.''
The inquiry also heard about disagreements between Young and the body that regulates doctors in Ontario about who had jurisdiction in discipline cases involving pathologists.
At one point, the deputy registrar of the College of Physicians and Surgeons of Ontario wrote in a memo that Young "finds himself compelled to give the best appearance he can of trying to protect Crown pathologists.''
Young, who is now a special adviser to the federal deputy minister of public safety, said he wanted to ensure that pathologists, who were in short supply, would not be scared off from taking part in court cases because a judge might deem their findings to be wrong.
In one memo shown as evidence, a Crown prosecutor complained they looked like "fools'' because of the pathologist.
Dr. Charles Smith
Updated: Fri Dec. 14 2007 17:09:27
TORONTO — Discredited pathologist Dr. Charles Smith had ample opportunity to change his mind about the conclusions he reached in child death cases he investigated, some of which were later found to contain errors, a public inquiry into Ontario's pediatric forensic pathology system heard Friday.
There are chances to revisit such opinions, particularly when the ever-evolving science of forensic pathology presents new information that could prompt a review of their findings, a British pathologist agreed.
Such opportunities can arise if there's a complaint about the pathologist's opinion in a criminal case, during an appeal or review, or if colleagues have raised questions about why a judge may have rejected evidence given in a criminal case, Dr. Helen Whitwell said.
"And so in (the case of 16-month-old) Amber, if a complaint were made against Dr. Smith and he had an opportunity to respond, that again would provide an opportunity for him to evaluate or reassess whether or not he wished to maintain the same or different opinion? Is that right?'' commission lawyer Mark Sandler asked.
"Yes,'' Whitwell said. "I mean, I can only speak about what potentially could happen in England, and we would have the opportunity to respond.''
Amber, of Timmins, Ont., died while in the care of her 12-year-old babysitter, S.M., who maintained the child had fallen downstairs.
The death came at a time when still-controversial "shaken baby syndrome'' was working its way into the forensic consciousness, and Smith -- who was deemed an expert -- concluded that Amber died from brain injuries caused by severe shaking. Nine other experts disagreed.
In acquitting the babysitter in 1991, the judge issued a scathing criticism of Smith's work, which has since come under scrutiny.
Smith's lawyer Niels Ortved had argued Thursday at the inquiry that his client, once considered the leading Canadian expert in pediatric forensic pathology, wasn't given a chance to reconsider his opinion before he was blindsided by a team of international experts, which included Whitwell.
Ortved also demanded that Whitwell explain her own reversal in a homicide case, pointing out that she had testified for the prosecution at the 1995 manslaughter trial of Alan Cherry, but later switched sides and testified for the defence when England's Court of Appeal reconsidered his case.
On Friday, Ortved objected to Sandler's questioning of Whitwell, calling it "gratuitous.''
"Dr. Smith was presented with 20 cases, which have now become 18 cases, of conclusions from experts adverse to him, and he was given no notice of those whatsoever,'' Ortved said.
"And that's what I'm objecting to, and I don't agree with this.''
Sandler countered that he was not referring to whether Smith had a chance to modify his findings in 45 cases he handled since 1991 that were examined by the expert panel, which found problems in 20 of them.
Those findings raised serious doubts about opinions given by Smith and prompted the province to call the public inquiry to examine the role played by pediatric forensic pathology in the criminal justice system since 1981.
Whitwell testified that she changed her view in the Cherry case because the knowledge she was operating under in 1995 had changed, and that she had an opportunity to revisit her opinion because the case went to appeal.
However, she noted that there's no mechanism in England that allows a pathologist to take the initiative on their own.
"There's no person I can write to and say, `This has changed,''' she said."There's nobody to write to and no real mechanism for that.''
The inquiry had previously heard that the province's coroner's office had difficulty tracking cases and that its former chief coroner had not seen the judge's ruling in the Amber case that criticized Smith's work or another complaint letter in 1999 that referenced it.
Earlier Friday, the inquiry heard that while pathologists in some countries have been encouraged to be more suspicious when investigating unexpected deaths, they should not take the "think dirty'' approach that Ontario pathologists investigating child deaths began to adopt in 1995.
Pathologists must instead keep an open mind when examining suspicious deaths rather than approach cases with an assumption of wrongdoing, Whitwell and Finnish forensic pathologist Dr. Pekka Saukko testified.
The inquiry also heard that Ontario's "think dirty'' protocol has since given way to a culture that urges pathologists to keep an open mind.
Dr. Charles Smith
Updated: Mon Dec. 17 2007 16:02:49
TORONTO — A secretary who repeatedly tried to have discredited pathologist Dr. Charles Smith clean up his messy office and return phone messages was surprised to find missing evidence in the room just three days after searching it, a public inquiry heard Monday.
The 20 autopsy slides discovered by administrative co-ordinator Maxine Johnson in November 2004 were part of the evidence requested by lawyers representing William Mullins-Johnson, who spent a dozen years in jail after Smith's faulty pathology helped convict him in the death of his four-year-old niece.
Mullins-Johnson, of Sault Ste. Marie, Ont., was released from custody in September 2005 after evidence surfaced that Smith had misplaced tissue samples capable of showing the girl died of natural causes in 1993. Mullins-Johnson was acquitted of her murder in October.
Johnson said she found 20 of the missing slides on Nov. 29, 2004, during a second search of Smith's office in the pathology division of the Hospital for Sick Children in Toronto, where she works.
Jim Cairns, Ontario's deputy chief coroner, made the urgent request to find the slides the previous week after Smith failed to provide them, Johnson testified. She and another secretary, Dorothy Zwolakowski, located "a few'' slides in Smith's office that Friday.
But when Johnson looked again the following Monday, she discovered 20 slides on a shelf in Smith's office -- the same spot she had checked three days prior, she said.
"Did you draw from that the inference that they had been placed in the position where you found them between the Friday and the Monday?'' said Philip Campbell, a lawyer who represents Mullins-Johnson and other families convicted of crimes in cases that involved Smith.
"Yes, I did,'' Johnson replied. "Because we did spend a lot of time and we did look everywhere for those.''
She said she spoke to Zwolakowski about finding the missing slides in a spot they had already searched.
"I told Dorothy that I thought it was kind of strange that we had looked,'' Johnson said. "I mean, we spent a lot of time looking.''
Additional evidence related to the case was found some months later in places that Johnson had already searched, she testified.
The inquiry also heard that Smith's office was often unkempt and littered with phone messages taken by frustrated clerical staff who answered numerous calls from police and other parties looking for Smith, once considered a leading Canadian expert in the field of forensic pediatric pathology.
A search of Smith's office in June 2005 unearthed a collection of bizarre objects, such as human bones and pieces of dried-out tissue, Johnson said.
She had a picture taken of Smith's office in 2001, hoping it would "motivate'' him to keep it tidy. But it didn't have the desired effect, she said.
The grainy picture appears to show numerous documents and other materials strewn all over Smith's desk. Johnson testified the photo was taken after she'd already been cleaning his office for an hour, as she did a number of times.
Smith's computer screen was often littered with phone messages taped to the monitor, Johnson said. When there was no room left, the secretaries would leave messages on his chair, knowing that when Smith sat down, he would be forced to look at them.
"The secretaries always seemed to, sort of, be blamed for him not getting his messages,'' she said.
"He would say, `Oh, I didn't get the message.' So we developed a system where if you put it on his computer, we always know that he's going to sit in his chair and turn around to his computer screen.''
Still, the secretaries liked working for Smith because he was easy to get along with, Johnson said.
"He's really a great guy,'' she told the inquiry.
"He's sociable and definitely not a difficult person to deal with.''
But the chronic delays in completing autopsy reports were often of Smith's own making, the inquiry heard.
His "love'' for typing his own autopsy reports was part of the reason authorities rarely received them on time, Johnson said.
"He liked to type them himself,'' she said. "He just didn't give them to us (secretaries).''
Dr. Don Perrin, who sat on a Hospital for Sick Children committee between 1995 and 2001 that kept track of outstanding autopsies, said Smith had more delayed reports than any other pathologist.
Perrin, who sat on the committee along with Smith and Dr. Laurence Becker, former chief of the hospital's pediatric laboratory medicine department, said he offered some ideas about helping Smith clear the backlog, but they fell on deaf ears.
"Dr. Smith didn't want me to help him,'' Perrin said. "He said he would catch up.''
The inquiry into pediatric forensic pathology in Ontario is investigating the deaths of 20 children which involved criminal proceedings where Smith was a forensic pathologist.
Led by Justice Stephen Goudge, the inquiry was prompted by a review of 45 cases Smith handled between 1991 and 2001. Twenty of those led to criminal proceedings.
Dr. Charles Smith
Updated: Tue Dec. 18 2007 16:31:17
TORONTO — Discredited pathologist Dr. Charles Smith second-guessed his colleagues in some of the child death cases he oversaw and jumped to "ridiculous" conclusions, a pathologist who frequently clashed with Smith told a public inquiry Tuesday.
Once considered a leading Canadian expert in the field of forensic pediatric pathology, Smith also made serious errors in diagnosing patients at Toronto's Hospital for Sick Children, including a girl with a kidney tumour who didn't receive the right medical treatment as a result, the inquiry heard.
Dr. Ernest Cutz, a pathologist and expert in sudden infant death syndrome or SIDS, said there were a number of cases where Smith suspected criminal activity even though there was no evidence to support his opinions.
In one case, Cutz concluded that an infant had died accidentally after being found tangled in the cord from a venetian blind close to the crib.
But Smith, who signed off on Cutz's cases as director of Ontario's forensic pediatric pathology unit, said the incident "looked suspicious" and that the parents might be involved, Cutz said.
"I found it quite ridiculous, especially knowing that this is a recognized hazard, which has been documented in the literature, and it has even been the subject of television reporting," he said.
Smith never explained the reasons behind his suspicions, Cutz added.
"There was no evidence from police or other investigations that anything untowards has happened, and I presume that's how it ended up classified," he said.
Another case involved a small child who had the croup and died after collapsing in a shower that was intended to alleviate his respiratory problems, Cutz said.
During the autopsy, Cutz found a fungal obstruction in the child's airway, which he concluded had developed as part of his illness and caused the child's death.
Smith thought the obstruction was a red herring - something that happened while the child was being resuscitated - and suspected the mother had a mental disorder and was somehow responsible for the child's death, Cutz said.
Smith also made errors in his surgical pathology work at the Hospital for Sick Children, the inquiry heard.
Dr. Glenn Taylor, now head of the hospital's pathology division, testified about one case where Smith misdiagnosed a girl in 1996 as being in the early stages of a kidney tumour, when she actually had a more aggressive form of the illness.
Taylor, who reviewed the original slides after the child returned to the hospital about a year later with a recurrence of the tumour, discovered the error, which had prevented the girl from receiving proper medical treatment.
"It would have at least included ... additional chemotherapy and possibly radiation therapy," said Taylor, who testified he didn't know what happened to the girl.
"It would have been a more aggressive treatment."
The inquiry into pediatric forensic pathology in Ontario also heard Cutz's misgivings about the forensic unit, which he felt had strayed from its initial, primarily academic focus towards forensics and conducting more autopsies of criminally suspicious cases.
It was a concern he seemed to share with Dr. Laurence Becker, the former head of the hospital's pathology division, who drafted a letter in 1999 proposing that the hospital sever its link with the coroner's office through the unit and perform autopsies only in medical or natural death cases.
Cutz, who conducted research with Becker, a fellow SIDS expert, said they had supported the move to form the unit in 1991 because they believed it would help fund and support their research.
But that work effectively stopped when they were cut off from accessing tissue samples from SIDS cases investigated by the coroner, Cutz said.
In early 1997, Cutz said he was surprised to hear that the coroner's office was considering removing him from performing all medical-legal autopsies because of "vague" allegations that he was soft on crime and didn't co-operate with police.
He later straightened things out with Dr. David Chiasson, former chief forensic pathologist at the coroner's office, and his name wasn't taken off the autopsy roster, he said.
But Cutz, who didn't hide his distaste for Smith's methods during Tuesday's hearing, testified he had reservations about the former Ontario pathologist from the time he was appointed director of the forensic unit.
"I didn't know if Dr. Smith was qualified, but I didn't think that he had the appropriate training to assume that, to do those kinds of (forensic) cases," Cutz said.
"But it was his choice. ... I wouldn't have recommended him to do it."
Led by Justice Stephen Goudge, the inquiry into pediatric forensic pathology in Ontario was called after an expert panel reviewed 45 cases Smith handled between 1991 and 2001.
The panel found problems in 20 of those cases, which raised serious doubts about opinions given by Smith and the criminal proceedings that stemmed from his findings.