THE CHARLES SMITH AUTOPSY SCANDAL

Ontario's Chief Coroner wants to restructure its operation

Office wants to split off its forensic branch, hire more people and upgrade lab

KIRK MAKIN

JUSTICE REPORTER

March 28, 2008

TORONTO -- The Office of the Chief Coroner of Ontario has urged a wholesale revamping of its operation to prevent a repeat of the Charles Smith autopsy scandal that engulfed it over the past decade.

In wide-ranging recommendations to the Goudge commission yesterday, the office recommended splitting off its forensic branch and providing it with enough funds to recruit forensic pathologists aggressively amid a global shortage.

It added a plea for "new and enhanced leadership," a new facility to replace its outdated laboratory and morgue complex and a quality-review branch with broad powers to supervise cases.

The coroner's office also recommended measures that would allow it to police the competence of expert witnesses and to track suspicious-death cases through the justice system.

Its brief conceded that 142 child death cases that featured findings of suspicious head injuries must be reviewed - but it urged Mr. Justice Stephen Goudge not to burden it with the job.

In another development, with his year-long inquiry into the Smith debacle nearing an end, Judge Goudge was granted a time extension yesterday. His final report is now scheduled for Sept. 30.

In one of a dozen final submissions from parties with legal standing at the commission, lawyers for Dr. Smith said yesterday that their client must not be made a scapegoat for a dysfunctional system.

The brief stressed that Dr. Smith was not the only pathologist in the country who was shockingly inexperienced, poorly supervised, disorganized and dangerously free-wheeling in courtroom testimony.

"The public deserves to understand the full scope of the system failures, which ought not to be hidden behind an exaggeration of Dr. Smith's alleged inadequacies," the brief said.

It also denied an assumption underlying the creation of the inquiry - that Dr. Smith made fateful errors in 20 cases that led to parents and caregivers being wrongly charged or convicted of killing children.

"In fact, the evidence reveals that in many of the cases in which Dr. Smith allegedly erred in rendering a diagnosis on cause or mechanism of death, his findings, opinions and conclusions were considered reasonable at the time the case was under investigation and/or the prosecution, in light of the state of knowledge and then-accepted procedures," the brief stated.

"Succinctly, the various participants of the criminal justice system are inextricably connected and it is impossible to fairly judge any one participant in isolation or to attribute a particular outcome to the actions of any one participant."

However, Dr. Smith admitted that in the five cases where he committed significant errors, his evidence was "confusing, unscientific or overly dogmatic." Balancing these shortcomings, it added, was the fact that Dr. Smith won praise from colleagues for his handling of many complicated and troubling autopsies.

The brief from the coroner's office spread the blame around, saying that it can be forgiven for having the wool pulled over its eyes in light of how unaware other institutions were of Dr. Smith's failings.

"It is reasonable for OCCO to have expected those experienced in the criminal justice system, who were exposed on a regular basis to the conduct of expert witnesses in criminal proceedings - such as judges and counsel for the Crown and defence - would have contacted OCCO if there had been any concerns about the testimony provided by forensic pathologists," the brief said.

Dr. Smith's status, combined with an unusual relationship between the coroner's office and the Hospital for Sick Children, made it very difficult for Chief Coroner James Young and deputy chief coroner James Cairns to supervise and control Dr. Smith, the brief said.

"Aside from Dr. Smith's reputation as an expert in the field of pediatric forensic pathology, he was also someone who exuded confidence and self-assurance, which had a positive impact on those working with him for OCCO," lawyers Brian Gover, Luisa Ritacca and Teja Rachamalla said in the brief.

"It would have been difficult and perhaps even unreasonable, under the circumstances, for OCCO to anticipate a situation in which a world-renowned pathologist who was considered to be the top in his field - and who presented as highly competent - would fail the system in the manner that is the subject of this commission of inquiry."

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THE GOUDGE INQUIRY

Nearly a dozen participants in the Goudge inquiry tried yesterday to explain how a rogue pathologist avoided detection - and even thrived within the criminal justice system - for so long.

In final submissions to the inquiry, some parties blamed permissive judges, lazy defence counsel or conviction-seeking prosecutors.

Others cited the medical establishment or the Ontario Office of the Chief Coroner.

In a brief filed on behalf of a group of parents who are suing Charles Smith, lawyer Peter Wardle accused the Coroner's office of ignoring mounting evidence of incompetence.

His brief states that Dr. Smith's lofty reputation reflected well on Chief Coroner James Young and Deputy Chief Coroner James Cairns, causing them to gloss over his faults.

"Over time, he became the largest frog in the small pond of pediatric forensic pathology - in fact, the only frog," Mr. Wardle said.

"During the period from the early 1990s through to 2004 there can be no little doubt that Drs. Young and Cairns, and Dr. Young in particular, sheltered and protected Dr. Smith."

The Association in Defence of the Wrongly Convicted and a group of parents seeking exoneration in cases connected to Dr. Smith urged a review of hundreds of cases across the country, saying that he "provided countless consultations - many of them undocumented - to pathologists across the province and across the country."

The College of Physicians and Surgeons of Ontario rejected claims by Dr. Young and Dr. Cairns that they responded appropriately to complaints about Dr. Smith's work.

It also deplored the fact that doctors and hospitals are loathe to report possible misconduct or ineptitude to the regulatory body - a reality that emerged during testimony at the inquiry.

"The CPSO submits that there is clearly an attitude that notification to a licensing body of behaviour or practice falling below an acceptable standard is 'whistle blowing' of a very serious nature, and that one should contact the CPSO only as a last resort," the CPSO brief said.

Kirk Makin