Inquiry into Pediatric Forensic Pathology in Ontario
February 1, 2008



Cross-examination of Dr. Charles Smith by Suzan Fraser, counsel for Defence for Children International-Canada.

The following is an excerpt from the transcript of the Inquiry into Pediatric Forensic Pathology in Ontario. For the official transcript, or for more information about the Inquiry, visit the Inquiry web site: http://www.goudgeinquiry.ca.


[Page 1]

1
2
3 THE INQUIRY INTO PEDIATRIC FORENSIC
4 PATHOLOGY IN ONTARIO
5
6
7
8 ********************
9
10
11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE,
12 COMMISSIONER
13
14
15
16 Held at:
17 Offices of the Inquiry
18 180 Dundas Street West, 22nd Floor
19 Toronto, Ontario
20
21
22 ********************
23
24 February 1st, 2008
25

                            . . . . .


[Page 95]

4 CROSS-EXAMINATION BY MS. SUZAN FRASER:
5 MS. SUZAN FRASER: Sir, my name is Suzan
6 Fraser and I'm here on behalf of an organization called
7 Defence for Children International.
8 DR. CHARLES SMITH: Good morning.
9 MS. SUZAN FRASER: Good morning. And,
10 sir, you came here and you stated that you have come to
11 appreciate your mistakes, that's correct?
12 DR. CHARLES SMITH: Yes.
13 MS. SUZAN FRASER: All right. And
14 throughout your examination and your cross-examination
15 you have identified a number of mistakes, those include
16 that you were dogmatic?
17 DR. CHARLES SMITH: Yes.
18 MS. SUZAN FRASER: You were an advocate?
19 DR. CHARLES SMITH: Yes.
20 MS. SUZAN FRASER: You were an advocate
21 for the Crown?
22 DR. CHARLES SMITH: Yes.
23 MS. SUZAN FRASER: And you gave confusing
24 testimony?
25 DR. CHARLES SMITH: Yes.


[Page 96]

1 MS. SUZAN FRASER: And you were
2 disorganised?
3 DR. CHARLES SMITH: Yes.
4 MS. SUZAN FRASER: You went beyond your
5 expertise?
6 DR. CHARLES SMITH: Yes.
7 MS. SUZAN FRASER: You, at times, saw
8 yourself as a member of the prosecution team?
9 DR. CHARLES SMITH: Early on I did, yes.
10 MS. SUZAN FRASER: Yes. And you were
11 profoundly ignorant of forensic pathology?
12 DR. CHARLES SMITH: Yes.
13 MS. SUZAN FRASER: And your education was
14 woefully inadequate?
15 DR. CHARLES SMITH: Those were my words.
16 MS. SUZAN FRASER: Yes, and they are
17 true?
18 DR. CHARLES SMITH: I believe they are.
19 MS. SUZAN FRASER: All right. And it's
20 fair to say that you have told the Commissioner that
21 you've given evidence in other proceedings, both in
22 inquests?
23 DR. CHARLES SMITH: Yes.
24 MS. SUZAN FRASER: All right. And those
25 would include some, if not all, of the six (6) systemic


[Page 97]

1 inquests held into children's deaths in 1996 and 1997.
2 Do you remember those?
3 DR. CHARLES SMITH: I -- I certainly was
4 part of the group that worked in the preparation of them.
5 I can't remember now which inquests I actually testified
6 at.
7 MS. SUZAN FRASER: All right. And you
8 recall giving evidence at inquests into the death of
9 children though.
10 DR. CHARLES SMITH: Oh, yes, yes.
11 MS. SUZAN FRASER: All right. And you
12 also gave forensic pathology evidence or evidence in the
13 nature of forensic pathology evidence in child protection
14 proceedings or Family Court, as it's sometimes called.
15 DR. CHARLES SMITH: Yes, I have.
16 MS. SUZAN FRASER: All right. And your -
17 - you also worked with the Paediatric Death Review
18 Committee and provided your expertise to that Committee,
19 correct?
20 DR. CHARLES SMITH: I was a member of
21 that Committee.
22 MS. SUZAN FRASER: All right. And it's
23 fair to say that the reason that you were a member is
24 because of what at the time was thought of your leading
25 pediatric forensic pathology knowledge; fair?


[Page 98]

1 DR. CHARLES SMITH: I think I've stated
2 the reasons why I presumed that I was asked to be on the
3 Committee.
4 MS. SUZAN FRASER: All right.
5 DR. CHARLES SMITH: Mm-hm.
6 MS. SUZAN FRASER: And it -- isn't it
7 fair to say, sir, that the mistakes -- your mistakes that
8 occurred in the criminal justice proceedings might also
9 be found in those other proceedings, in your work in
10 inquests and your work in the Family Court?
11 DR. CHARLES SMITH: Yes.
12 MS. SUZAN FRASER: All right. It doesn't
13 -- it would illogical to say that they --
14 DR. CHARLES SMITH: That --
15 MS. SUZAN FRASER: -- would not have been
16 repeated there?
17 DR. CHARLES SMITH: Yes. Yeah. No, I --
18 if I had made mistakes one place, I can certainly make
19 them in another.
20 MS. SUZAN FRASER: All right. And you
21 stated that you have come to appreciate your mistakes and
22 have you come, sir, to appreciate the extent of the
23 damage of your mistakes?
24 Do you realize, sir, that children were
25 taken from their parents as a result of your evidence?


[Page 99]

1 DR. CHARLES SMITH: Yes, I've seen that.
2 MS. SUZAN FRASER: All right. And you're
3 aware that some children, Joshua's brother, for one, was
4 taken from his natural mother and adopted into another
5 family? You were aware of that, sir?
6 DR. CHARLES SMITH: I -- I don't know
7 just how specific my knowledge of that was but I -- but
8 it was my understanding that he -- he was taken away but
9 I couldn't tell you what the decision on him was.
10 MS. SUZAN FRASER: All right. Sir, if
11 you're interested in that information, --
12 DR. CHARLES SMITH: Mm-hm.
13 MS. SUZAN FRASER: -- you'll find it in
14 the overview report on Joshua. I won't take you there
15 now.
16 DR. CHARLES SMITH: Okay.
17 MS. SUZAN FRASER: Sir, and you're also
18 aware that Sharon's sister, who was three (3) years old
19 at the time of her death, was adopted, and that her
20 mother felt she had no choice because her prospects to
21 contest an application, because her prospects for being
22 released were so remote?
23 You're aware of that, sir?
24 DR. CHARLES SMITH: I -- I have some
25 knowledge of that, yes.


[Page 100]

1 MS. SUZAN FRASER: Right. And you would
2 know that from the statement of claim filed against you,
3 sir?
4 DR. CHARLES SMITH: I -- I couldn't tell
5 you the source but I recognize that.
6 MS. SUZAN FRASER: All right. And,
7 Commissioner, I won't take you there now, but for the
8 record, that's found at PFP116230.
9 We know that Jenna's sister was in the
10 care of the Children's Aid Society for almost two (2)
11 years; you're aware of that?
12 DR. CHARLES SMITH: I -- I have some
13 knowledge. The specifics, I -- as your two (2) years,
14 I'm --
15 MS. SUZAN FRASER: All right.
16 DR. CHARLES SMITH: -- I -- I canÆt
17 remember. But, yes, I recognize that.
18 MS. SUZAN FRASER: These children are
19 also deserving of an apology, are they not, Dr. Smith?
20 DR. CHARLES SMITH: Yes.
21 MS. SUZAN FRASER: All right. And can
22 you assist, sir, can you assist with providing us
23 information on how many times you might have either
24 assisted with an investigation of a Children's Aid
25 Society or prevented -- presented evidence in Court


[Page 101]

1 either by affidavit or viva voce evidence?
2 DR. CHARLES SMITH: How many times?
3 MS. SUZAN FRASER: How many times, sir?
4 DR. CHARLES SMITH: I would have to be
5 case specific. I did in Kingston in the Paolo case or --
6 or the case that involved Paolo's brother.
7 MS. SUZAN FRASER: All right. Sir, I'm
8 not -- I'm not --
9 DR. CHARLES SMITH: Okay. I -- I'm,
10 yeah, I'm not trying to waste your time here. Yes.
11 MS. SUZAN FRASER: I'm -- I appreciate
12 that, sir, but I want to --
13 DR. CHARLES SMITH: Yeah.
14 MS. SUZAN FRASER: -- just clarify the
15 focus of my -- my --
16 DR. CHARLES SMITH: Okay.
17 MS. SUZAN FRASER: -- question. I think
18 we have certain information about the cases before the
19 Commissioner, --
20 DR. CHARLES SMITH: Oh, I see.
21 MS. SUZAN FRASER: -- the twenty (20)
22 cases here.
23 DR. CHARLES SMITH: Okay.
24 MS. SUZAN FRASER: And what I'm
25 interested in, sir, --


[Page 102]

1 DR. CHARLES SMITH: Are --
2 MS. SUZAN FRASER: -- is that there
3 would --
4 DR. CHARLES SMITH: -- beyond those.
5 Yeah.
6 MS. SUZAN FRASER: Exactly. And you'll
7 agree with me that there were times that you gave
8 evidence where there -- in a -- in a child death where --
9 matter, where there was no underlying criminal
10 proceeding? You're aware of that?
11 You'd agree with me on that?
12 DR. CHARLES SMITH: Yes. I can think of
13 maybe three (3) or four (4) instances, yes.
14 MS. SUZAN FRASER: All right. And so in
15 the years that you provided forensic pathology services
16 in the province of Ontario, can you give us a number as
17 to how many children's lives you might have affected?
18 DR. CHARLES SMITH: In addition to the --
19 MS. SUZAN FRASER: Yes, sir.
20 DR. CHARLES SMITH: -- ones here?
21 MS. SUZAN FRASER: Yes, sir.
22 DR. CHARLES SMITH: The...I think it
23 would be perhaps three (3) or four (4), but I could -- I
24 could well stand corrected because -- oh, well actually
25 those were, I shouldn't say children, those were the


[Page 103]

1 instances that I can think of where I was asked to
2 present an autopsy or to give a second opinion on an
3 autopsy.
4 Whether there was one (1) child or more
5 than one (1) child is something that I -- I wouldn't
6 necessarily know. But certainly families, I would say, I
7 can think of three (3) or four (4).
8 MS. SUZAN FRASER: All right. And that
9 would include, you mentioned the twin's case, the twins
10 who died in --
11 DR. CHARLES SMITH: That -- that --
12 MS. SUZAN FRASER: -- 1982?
13 DR. CHARLES SMITH: That would be one of
14 them, yes.
15 MS. SUZAN FRASER: That man went on
16 later, after maintaining his -- his innocence for many
17 years, later went on to have another child? Another --
18 DR. CHARLES SMITH: That's my
19 understanding.
20 MS. SUZAN FRASER: All right. And,
21 Commissioner, you will find that in our documents, I
22 won't turn it up, but it's one of the documents that's
23 before you as part of the -- it's at Tab 1 and 2 of the
24 Parties With Standing Overview, Volume I.
25 Sir, and in terms of your bias, sir,


[Page 104]

1 sorry, just moving back. In -- in terms of those three
2 (3) or four (4) cases, are -- going forward, sir, are you
3 prepared to help identify, should there be a need to
4 examine those cases, are you prepared to help identify
5 those cases so those children can perhaps one day be
6 reacquainted with their natural parents?
7
8 DR. CHARLES SMITH: I -- if -- if there
9 is a -- a reasonable and proper role for me to do that,
10 yes. Yeah, I -- I would -- if I could help fix a wrong
11 and it was appropriate to do that then, yes.
12 MS. SUZAN FRASER: Thank you, sir. And,
13 sir, you have come here and talked about your close
14 relationship being -- in the early days most certainly
15 being part of the prosecution team, being invested in
16 that role?
17 DR. CHARLES SMITH: In the 1980s, yes.
18 MS. SUZAN FRASER: All right. And is it
19 fair to, sir -- say, sir, that -- that there are similar
20 close working relationships in the Paediatric Death
21 Review Committee and the Death Under Five Committees or
22 the Death Under Two Committee, as it once were, in those
23 committees you worked closely with police, CAS
24 representatives, doctors, Crowns?
25 DR. CHARLES SMITH: Well, the -- the


[Page 105]

1 committee is made up of a number of experts who come
2 along with different viewpoints and then individual cases
3 are discussed --
4 MS. SUZAN FRASER: Yes?
5 DR. CHARLES SMITH: -- and ultimately a
6 consensus or recommendations are -- are made by the
7 committee.
8 MS. SUZAN FRASER: All right. So you're
9 all working together. You're sort of working on the same
10 side?
11 DR. CHARLES SMITH: Well, we are. In --
12 in the CAS cases those were ones where the -- apart --
13 where the medical people were -- were usually quite
14 silent --
15 MS. SUZAN FRASER: Yes.
16 DR. CHARLES SMITH: -- because they have
17 no expertise or knowledge or may -- they may not have any
18 insight, so, those were -- those would be the discussions
19 and the decision making in those would be -- would --
20 would reflect the issues that are inherent in those --
21 MS. SUZAN FRASER: Yes?
22 DR. CHARLES SMITH: -- whereas if it was
23 a complex medical case that did not involve CAS then,
24 obviously, the discussions are going to go on in
25 different -- on a different way but at the end of the


[Page 106]

1 day, Dr. Cairns' job as -- as Chair was to distill all of
2 the information and then go forward with whatever --
3 whatever an appropriate decision-making process
4 reflected.
5 MS. SUZAN FRASER: Sir, and the -- the
6 CAS cases, those would include where there's an open
7 file, somebody's under the supervision of CAS' care and
8 that might either be in the care of their parents or in
9 another facility operated by the state like a group home
10 or foster care?
11 DR. CHARLES SMITH: Yes, that's right.
12 MS. SUZAN FRASER: All right. And is it
13 --
14 COMMISSIONER STEPHEN GOUDGE: You're
15 running out of time, Ms. Fraser.
16 MS. SUZAN FRASER: I'm -- I'm very close
17 to finishing if I may, Mr. Commissioner?
18 COMMISSIONER STEPHEN GOUDGE: One (1) or
19 two (2) more questions.
20
21 CONTINUED BY MS. SUZAN FRASER:
22 MS. SUZAN FRASER: Thank you. And one
23 (1) of the things that you talked about in terms of
24 working with the coroner's office was getting your ducks
25 in a row.


[Page 107]

1 Was there a similar attitude in the PDRC?
2 DR. CHARLES SMITH: Never.
3 MS. SUZAN FRASER: Never?
4 DR. CHARLES SMITH: Never. No. No. I
5 never sensed that at all. The PDRC was usually a look-
6 back to see what went wrong, if anything, and trying to
7 understand looking back to see the mistakes that happened
8 as opposed to -- as opposed to go through all of the
9 information so that a Crown attorney could -- the ducks
10 in a row refers to a Crown attorney understanding the
11 strengths and --
12 MS. SUZAN FRASER: Yes.
13 DR. CHARLES SMITH: -- weaknesses of --
14 of various medical opinions.
15 MS. SUZAN FRASER: All right but is it
16 fair to say and I'm almost finished --
17 DR. CHARLES SMITH: Mm-hm.
18 MS. SUZAN FRASER: -- Mr. Commissioner,
19 if I may but it's important to my client that where --
20 you -- you indicated in the CAS cases you deferred to the
21 CAS representatives --
22 DR. CHARLES SMITH: Mm-hm.
23 MS. SUZAN FRASER: -- on the committee.
24 Is that -- was that your evidence, sir?
25 DR. CHARLES SMITH: Yes. Yes.


[Page 108]

1 MS. SUZAN FRASER: All right.
2 DR. CHARLES SMITH: In the CAS cases I
3 don't think there was -- in the cases that came forward,
4 I can't ever remember pathology issues that I could speak
5 to in -- in any significant way.
6 MS. SUZAN FRASER: All right. Thank you,
7 sir. Those are my questions.