Inquiry doesn’t go far enough

The defence bar is outraged at the limited scope of the public inquiry into the role the system may have played in the work of disgraced pathologist Dr. Charles Smith.

Following the release of the results of a review by the office of the chief coroner of 45 criminally suspicious and homicide cases involving Smith, a forensic pathologist who carried out autopsies and provided opinions on cases involving pediatric deaths until 2002, Attorney General Michael Bryant announced last week that he was calling a full public inquiry. Ontario Cour to Appeal Justice Stephen Goudge will lead the commission.

The inquiry will review and report on the policies, procedures, practices, accountability and oversight mechanisms, quality control measures, and institutional arrangements of pediatric forensic pathology in Ontario from 1981 to 2001 relating to its use in investigations and criminal proceedings.

However, Cindy Wasser, a director of the Association in Defence of the Wrongly Convicted (AIDWYC), told Law Times that in the inquiry’s terms of reference, “There’s no look at the Crown’s office, there’s no look at the police officers, there’s no discussion of individual cases.

“Does he not understand that there are people that would have been happy to hear it all come out in an inquiry that will be incensed now and will litigate and that this will cost the taxpayer a lot more because he’s not dealing with it properly?” she says.

Assisting Goudge will be an expert medical and scientific panel chaired by the former chief coroner of British Columbia, Senator Larry Campbell. The inquiry’s report is expected within a year. The inquiry will be able to call witnesses on behalf of institutions and its aim is to make recommendations to “restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings.”

Wasser says she is thrilled with Goudge’s appointment as commissioner, but “Justice Goudge has his hands cuffed and no ability to look into civil or criminal liability - that’s just outrageous.”

According to the report from the coroner’s office, reviewers for the office had concerns in 20 of the 45 cases involving Smith that were examined, ranging from relatively minor to potentially more serious issues. Among those 20 cases, there were 12 convictions and one finding of not criminally responsible. In three of the cases, the reviewers reports have been provided to Crown and defence counsel and the Office of the Chief Coroner says the reports in all of the remaining cases will be provided to the Crown and will then be “appropriately disclosed to defence counsel.”

Individual criminal cases in which Smith was involved will not be part of the public inquiry, because of a need to “ensure the integrity of any ongoing or future court proceedings, and in recognition of existing Criminal Code processes for addressing potential wrongful convictions,” says the Ministry of the Attorney General.

“Crown counsel have been assigned to the individual cases,” according to Bryant. “We will be quickly disclosing to defence counsel the case-specific results we have received from the coroner, and we are ready to respond to any next steps by the defence. We will co-operate fully and do all we can to expedite access for individual cases where injustices are claimed to the institutions that resolve such claims.”

Last week, Bryant announced that Crown attorneys 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 AG has also indicated consent to an application for an extension for Sherry Sherrett, convicted in the death of her infant son, to appeal her conviction. But the ministry says no such appeal has been received to date.

Wasser says the inquiry should be looking at individual cases of potential wrongful conviction to determine if they are and to deal with them in one place. If not, she says the lawyers who represent them or AIDWYC lawyers will have to either file appeals or 696 applications separately, which she says is costly and time-consuming.

She adds that the inquiry also needs to look at the attorney general’s office, addressing issues of what Crown attorneys and police officers were aware of, and “finding out what people knew and why they didn’t share it.” The inquiry should also look into whether there was “any cover up in the coroner’s office or the Crown’s office and was the real fear about liability so they continued to cover up rather than mitigate,” says Wasser.

In terms of the Coroner’s office, it should look at how Smith was enabled to create the position for himself as well as what process was in place to review his work. It should also make recommendations on how to improve the coroner’s office, police, and Crown attorneys’ office to recognize the culture that exists, she says.

Other than the cases that have gone public in the days since the results of the chief coroner’s report were released, the names of the 13 prosecutions in question have not been announced. Wasser says this is because many of the cases are more than 15 years old and the lawyers involved are trying to get in touch with their former clients.

The matter involving Smith holds important implications for the need to assess the reliability of expert opinions, says Wasser.

“We must be careful, we must be looking at every avenue and look under every rock in defending cases to challenge the expertise and that those submitting the witness, the Crown attorneys, must be very careful about what they’re looking at when they present the evidence and the judges must bear the responsibility as gatekeepers to make sure that the evidence has been properly challenged before it’s just let in.”

Louise Botham, president of the Criminal Lawyers’ Association, says, “Citizens of Ontario are entitled to at least feel confidence that best practices are being employed by the state when they put evidence forward.
“With Dr. Smith you have someone where there was a history of concern about the opinions he was [putting] forward, certainly a history throughout the ’90s where there was a concern about the reliability of his work.”

Botham adds that a public inquiry is needed to look at what protocols were in place to assess the reliability of Smith’s opinion and ask “at what point did his peers become concerned about the reliability of his opinions, at what point did police and the Crown start to be concerned about the reliability of that, why were there no mechanisms in place to disclose those concerns to the defence?”

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