Part Eleven; Closing Submissions; Affected Families; Amber's Case: The Chief Coroner's Office - It's Top Officials - And What They Should Have Known;

MOST EGREGIOUSLY, THOSE RESPONSIBLE FOR OVERSIGHT AND ACCOUNTABILITY PROVED UNWILLING OR UNABLE TO ENSURE THAT DR. SMITH WAS ABLE TO DEVELOP AND MAINTAIN QUALITIES OF UTMOST IMPORTANCE FOR THE CRIMINAL JUSTICE SYSTEM: COMPETENCE, PROFESSIONALISM, OBJECTIVITY AND HONESTY.

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This Blog is currently focusing on the submissions filed by the "Affected Families Group" - a group of families who were directly affected by the systemic failings which occurred in pediatric forensic pathology in Ontario between 1991 and 2001;

The Group is represented by lawyers Peter Wardle (Wardle, Daley, Bernstein) and Julie M. Kirkpatrick;

Today's focus is on the section in which the Group charges that the Chief Coroner's Office has to take its share of the blame for the "central failings" which caused nightmarish harm to the families involved.

"In 1989-91 a family in Timmins, Ontario faced the worst nightmare that can befall a family – their 12 year old daughter, SM, was charged with manslaughter arising out of the death of Amber, a death Dr. Charles Smith, then the most eminent pediatric forensic pathologist in Canada, believed to have resulted from shaking," this section of the closing submissions begins;

"Following a trial which took place over a period of almost two years, the Honourable Justice Dunn acquitted SM," the section continues;

"The reasons for decision of Justice Dunn raised serious issues about Smith’s dogmatism, his lack of objectivity, and his competence.

They contained what Dr. Pollanen has referred to as a “masterful” analysis of the case.

Anyone reading the decision would have been troubled that not just Dr. Smith but all of the Hospital for Sick Children witnesses in support of the prosecution’s case had a view of the scientific issues in the case which was contrary to that of all of the experts called by the defence from Canada and various jurisdictions in the United States.

In short, this case, and the judicial criticism that followed it, offered many lessons on the pitfalls of dogmatic thinking, tunnel vision and confirmation bias.

For the Office of the Chief Coroner of Ontario, this decision should have served as an opportunity to assess and evaluate Dr. Smith’s work.

All those involved in the coroner’s system were well aware of Dr. Smith’s increasingly powerful role in the investigation of criminally suspicious child deaths.

It should have come as no surprise to them that if Dr. Smith erred the consequences could be enormous.

The opportunity presented by Amber’s case was ignored.

So were many other opportunities in the years that followed.

Indeed, if the evidence heard at this Inquiry is to be believed, it appears that nothing could have attracted the attention of those charged with oversight and accountability for pediatric forensic pathology at the Chief Coroner's Office in the period 1991 to 2001.

The Chief Coroner's Office senior management ignored or minimized:

Judicial criticism of Dr. Smith in the SM decision itself;

0: Dr. Smith’s chronically tardy post mortem reports;

0: Complaints from other participants in the justice system about his timeliness and responsiveness;

0: Misplaced x-rays, a lost cast and mislabelled samples;

0: Opinions of other experts critical of Dr. Smith;

0: Media reports;

0: Complaints from aggrieved families; and

0: Cases stayed or dismissed because of deficiencies in Dr. Smith’s work or his testimony.

Most egregiously, those responsible for oversight and accountability proved unwilling or unable to ensure that Dr. Smith was able to develop and maintain qualities of utmost importance for the criminal justice system: competence, professionalism, objectivity and honesty.

As late as April 2002, Dr. Young, the Chief Coroner of Ontario, was prepared to support Dr. Smith’s professionalism and competence to the Ontario College of Physicians and Surgeons, knowing of Dr. Smith’s conduct relating to the hair in the Jenna case.

As Dr. Young said himself to this Inquiry: “I just don’t know why we didn’t stop him from doing anything at that point”.

The results of these systemic failures are almost beyond comprehension: wrongful convictions, prosecutions that never should have taken place, children separated from their mothers, a murder charge stayed for delay, and families stigmatized and traumatized.

This Inquiry is not the first to hear about tunnel vision and related concepts.

Unfortunately, inquiries dealing with such issues have been a regular feature of the Canadian criminal justice system in recent years.

What makes this Inquiry different is the scope of transgression.

In Ontario, the failures in pediatric forensic pathology are all the more striking in light of the highly-publicized findings and recommendations of the 1997-1998 Kaufman Inquiry into the proceedings involving Guy Paul Morin.

Indeed, Dr. Young testified at the Kaufman Inquiry and was charged with implementing certain of its recommendations.

Against this backdrop, how could those responsible at the Chief Coroner's Office – all dedicated, highly-educated, experienced and informed participants in the death investigation process – get it so wrong?

Was there something unique or deeply flawed about the institutional arrangements for pediatric forensic pathology which led to this result?

Tunnel vision, confirmation bias and other factors undoubtedly played an important role in the work of Dr. Smith and others in the individual cases the commission has reviewed.

Moreover, as the excellent paper submitted by Prof. MacFarlane makes clear, these problems are endemic in human behaviour and reoccur with regularity within the justice system.

The practice of forensic pathology may be more susceptible to these psychological forces because of its very nature – it is an interpretive and inexact science, as many testified, one that is as much art as science.

However, in our submission the evidence is clear that the central failings involve the Chief Coroner's Office itself.

From the outset, the institutional arrangements were flawed.

No meaningful oversight was provided by the Chief Coroner's Office to the Ontario Pediatric Forensic Pathology Unit.

Quality assurance was minimal and ineffective. As the problems began to mount, no one took responsibility for Dr. Smith’s errors nor was he held accountable for them.

The Chief Coroners Office's key executives became too closely associated with Dr. Smith and his work.

The provision of pediatric pathology services became part of a wider public safety mandate of preventing child abuse.

The Chief Coroner's Office played a significant role in creating Dr. Smith’s iconic status within the small world of pediatric death cases.

Having done so, the Chief Coroner's Office proved incapable of assessing his work in an objective manner.

The lack of an independent complaints process meant that the same people who had promoted Dr. Smith’s career and had a vested interest in his work product were responsible for reviewing and assessing complaints.

The systemic issues that have given rise to this Inquiry, best illustrated in the lives and experiences of the Affected Families, must be addressed through a critical assessment of what happened to them: how their lives intersected with the coronial system, the criminal justice system, and the child protection system in this Province at a time when they were each mourning the death of a child.

The systemic failures and solutions do not begin and end at the doors of the Ontario Pediatric Forensic Pathology Unit or the Chief Coroner's Office, or indeed at the door of Dr. Charles Smith.

Because of this, our submissions will follow the Commissioner’s mandate to review and assess the institutional arrangements in place during the years of the mandate in order to best make appropriate recommendations for the future.

We will do so through an overview of the crucial evidence relating to the institutional failures arising out of the six cases involving our clients.

We make a number of recommendations focused on systematic change, with the aim of restoring public confidence."

Harold Levy...hlevy15@gmail.com;