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In the post-Charles Smith world, justice seems tempered by fear

There's a tendency now in the courts to avoid the use of that nasty word "strangulation."

"Neck compression" is the new favoured term. It's a nice, neutral, passive term, merely a description of the mechanism of death. Strangulation is an active word uncomfortably suggestive of, well, wrongdoing. Tragically, Sally's neck was compressed; ergo, she died. Now Bill may be charged in her death, but best for all if the S word can be eschewed; it's negative, loaded, judgmental. Jurors might even be inflamed by it.

This is all part of the new, post-Charles Smith world order.

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The sins of Ontario's disgraced pathologist are well-documented and well-known and have attained the status of an article of faith such that Mr. Smith, recently stripped of his licence to practise, is routinely denounced.

Much of this is proper and richly deserved; I would not say otherwise. After all, it was on the strength of this man's allegedly expert court testimony, in part, that people were wrongly sent to jail or saw their lives and reputations shattered.

But the popular story is usually told without nuance and without any recognition of how his rise to stardom and fall to earth has altered the criminal justice system and rendered many of its participants timid.

Mr. Smith came to power in a province and country where there was no domestic training for forensic pathologists and where the specialty itself was little valued; training and certification were available only in other countries, particularly the United States.

He was a legitimate pediatric pathologist, and as child deaths and child abuse generally became a bigger issue both to the public and as a matter of policy in the 1980s, Mr. Smith, then working at Toronto's Sick Children's Hospital, stepped into the vacuum nature always abhors.

He was willing to do autopsies on children; he was willing to testify in court, an alarming prospect for many of his colleagues, cross-examination by a good defence lawyer being fraught with peril, and he was willing to lecture - and yes, it was about a discipline in which he had not a whit of training, but where he'd accrued some considerable hands-on experience.

In fairness to him, Mr. Smith was willing to stick his neck out at a time when virtually no one else in his corner of the planet was.

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Ultimately, of course, and in the absence of any instruction that this was not his job, he also grew to consider himself less a doctor or scientist and more a member of the prosecutorial team. In short, he became an advocate, and if his advocacy was for babies and children who had ended up dead, sometimes in suspicious circumstances and too often despite the various children's aid agencies that were supposed to be looking out for them, it was still wrong-headed and not a good thing.

This brings me in a roundabout way to the story I've been writing about all week, the scalding death of 19-month-old Miguel Fernandes; the fact that the Catholic Children's Aid Society had been involved with this family for all of Miguel's short life, and how Miguel's mother, Melissa Alexander, came to be convicted, this week, of manslaughter in the baby's death, a charge that came about when a preliminary hearing judge knocked the charge down from second-degree murder, a decision that senior prosecutors never appealed.

It might be demonstrated in the end that the CCAS acted with reasonable prudence in this case, though I have trouble imagining how, given the wretched way this little boy died, and certainly, it seems the agency didn't act with boldness. It might be argued that the decision of the preliminary hearing judge was just fine; it may be even be said that was why prosecutors didn't appeal it. The answers to these questions probably won't be known publicly, for the system, which was once merely opaque, is now deliberately secretive.

What I know is this: Until the case came for trial before Ontario Superior Court Justice Anne Molloy, who was as scrupulously fair and even-handed as anyone could want but considerably less mealy-mouthed than most of the other justice system participants, no one in the system seemed particularly aggrieved that a helpless 22-pound baby had died in such an awful manner.

It seems to me that people in the justice system, and I mean this broadly, are scared of their own shadows now.

Among prosecutors, this has taken the form of a false egalitarianism, where Crown attorneys are deemed equally good and each gets a share of big cases; gone the old star system. In the office of the Ontario chief coroner - which once did some considerable good - and at the attorney-general's office, no one wants to be the next Mr. Smith or be a backer of the next Mr. Smith.

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The result is that no one will stick a foot over the line, let alone stick out his neck - compressed or otherwise - not for anyone, not even a dead boy.

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