Stripping away the grandeur of the coroner's office

The Globe and Mail, by Kirk Makin, December 31, 2007

For decades, the Ontario chief coroner's building in downtown Toronto stood dignified and untarnished, a beacon of quiet competence in a justice system that has reeled from one wrongful conviction to another.

Placed under the microscope of repeated public inquiries, police, prosecutors and judges were blamed and shamed, yet the chief coroner remained untouched. Coroners and pathologists, plying their mysterious trade in morgues and autopsy rooms, became the stuff of prime-time TV drama and journalistic admiration.

Then came pathologist Charles Smith.

His track record of botched autopsy results - at least 20 criminal cases in which his findings led to dubious criminal prosecutions of parents - has given the urbane, smooth-talking doctor a corridor of his own in the wrongful conviction hall of fame.

As sensational as these cases were, however, few expected the Goudge commission to become a riveting spectacle when it was launched last spring. Mr. Justice Stephen Goudge's mandate appeared to preclude him scrutinizing the 20 cases, thrusting him instead into an earnest probe of "systemic" issues.

Yet, at the halfway point in the inquiry's public hearing phase, words like "dull" and "abstract" are the last that apply. Each gruesome death has been painstakingly examined, and blame for the entire affair has gone well beyond Dr. Smith. The inquiry has systematically stripped away the grandeur of the chief coroner's office, revealing a clubby, overworked group of doctors who operated with scant supervision or oversight.

Judge Goudge has it within his grasp to produce the most wide-reaching, influential report of any inquiry yet to tackle the failings of the justice system. He may well recommend a radical restructuring of the entire coroners' system, the central nervous system through which deaths are investigated and homicide investigations launched.

Judge Goudge's job will be made easier by the fact that the current chief forensic pathologist, Michael Pollanen, arrived with strong qualifications and a vow to eliminate opinion and speculation from both autopsy reports and courtroom testimony. He also presented the commission with an elaborate and well-received list of proposed changes.

Already, Judge Goudge has displayed a keen interest in:

• the inadequacy of autopsy reports;
• a dearth of qualifications for forensic pathologists;
• a dire shortage of doctors willing to accept the low pay and courtroom stresses of the profession;
• vast shortcomings in the way expert testimony is provided to the courts.

Like every inquiry, the Goudge commission has acquired its own personality. It is not a freewheeling inquisition punctuated by finger-pointing and fiery invective.

'Think Dirty'

It is run with military precision. Judge Goudge rigorously polices the time each lawyer has been allotted, once even warning a lawyer who took a swig of water that "the clock is running." There is no time for aggression or hyperbole.

On a smaller scale, the inquiry is homing in on key questions that go to the heart of the enigma that is Dr. Smith. What mission or personal crusade drove him? How did he create and sustain the Pediatric Pathology Unit - his own personal fiefdom, located in Toronto's Hospital for Sick Children and funded by the chief coroner's office? To what extent was his bloated sense of his own ability attributable to media adulation and peers who turned a blind eye?

In testimony, Dr. Smith has emerged as a self-confident figure who seized upon the vacant field of forensic pathology in the early 1980s to forge a career. At the time, Ontario's chief coroner was conducting more than 15,000 death investigations annually, using a patchwork of regional pathologists and coroners paid on a fee-for-service basis. The situation cried out for full-time professionals.

Simultaneously, awareness of child abuse was exploding. Social agencies and medical organizations issued chilling warnings that parents were getting away with gross acts of child abuse against vulnerable infants.

The scene was set for Dr. Smith to become the go-to guy in a system that had adopted a brand new motto: "Think Dirty." In courtrooms across the province, he championed the existence of shaken baby syndrome - a new diagnosis that was being used to explain why some infants were inexplicably found dead in their cribs.

Dr. Smith lectured to police, prosecutors and medical people. A devout fundamentalist Christian whose passionate regard for children caused him to lose his cool if he heard a baby referred to as "it," he enchanted journalists and juries alike. At one moment, he could expound on unpronounceable medical syndromes; then, effortlessly switching gears, he would recount a personal anecdote about his own children.

Frustrated defence lawyers looked in vain for experts willing to take him on. To face Dr. Smith in a murder prosecution often meant making a trip to the Crown attorney's office to hammer out a plea agreement. Dr. Smith's career, prestige and ego soared.

Then, opinions and testimony began to go awry. As doubts arose about his accuracy, colleagues seemed to be as incapable of seeing it as Dr. Smith was. more than anything else, the inquiry has made it clear that Dr. Smith was not the exclusive cause of what went wrong at the chief coroner's office. He was simply its worst symptom.

Dr. Smith's defence appears to rest on three pillars. First, that he was actively encouraged, enabled and approved by chief coroner James Young and deputy chief coroner James Cairns. Second, that his conclusions must be judged in the context of a time when forensic pathology was still evolving. Third, that pathology will always be an inexact science, that reasonable, competent practitioners can disagree.

An overworked office

What has come across through letters, memos, reports and live testimony is an indelible image of an overworked office where lax procedures and personal loyalties had become engrained. Rushing from one case to another, Dr. Young and Dr. Cairns appeared either in disbelief or too busy to pay attention to danger signs about Dr. Smith - chronically late reports, or judges who assailed his testimony.

Bureaucratically, the situation was ripe for disaster. Dr. Smith had one foot in the chief coroner's office and the other in Sick Kids' pathology division. It left him operating in a grey area, without adequate supervision. Lacking training in forensic pathology, Dr. Young and Dr. Cairns could scarcely assess his findings. Meanwhile, the couple of peers at Sick Kids who might have blown the whistle on his shortcomings felt they were either too junior to intervene or were wary that their meddling would be unwelcome.

Add to that a chronic shortage of pathologists. Seemingly adept and keen about his work, Dr. Smith was a godsend, an indispensable commodity. Guaranteed a virtual free hand, he effectively became his own supervisor.

The two most riveting witnesses to testify at the inquiry thus far, Dr. Young and Dr. Cairns, brought contrasting styles to the box.

Dr. Young was, for the most part, unapologetic and somewhat aloof. He portrayed himself as an intensely busy bureaucrat whose multiple responsibilities, hundreds of speaking engagements and "tens of thousands" of media interviews prevented him from closely reading reports and correspondence.

"I'm a scanner, not a reader," he told Judge Goudge. "I'm not detail-oriented. I can juggle a lot of balls at the same time."

Explaining why he failed to spot Dr. Smith's growing record of error, the former chief coroner said he ignored media exposés of the Smith affair and, rushing about in his bureaucratic bubble, simply failed to detect warning signs.

When Dr. Young finally began to see a pattern, he gave Dr. Smith a stiff talking to. Forensic pathologists each occupy a different perch on a large tree, he told his erring colleague: "Your views are at the far end of one branch. I want you hugging the trunk from now on."

The 'retroscope'

Dr. Young was fond of chiding lawyers not to use a "retroscope" - a make-believe instrument that can be used to second-guess decisions that were, at the time, understandable. Yet if there is one event in the entire Smith affair that cried out for use of the retroscope, it was the Amber case.

The case against a 16-year-old babysitter charged in 1988 with murdering a child in her care was thrown out in 1991 by an alert judge who accepted the emphatic testimony of an international cast of experts. It was a humiliating defeat for Dr. Smith - his first. If heeded properly, it would have sent tremors through the coroners system and prevented much of the vast misery that was yet to come.

If Dr. Young came across as an absentee landlord, Dr. Cairns was the janitor who ignored screams coming from the basement. The de facto chief operating officer at the Office for the Chief Coroner of Ontario for most of the two decades that Dr. Smith was growing in stature, Dr. Cairns was the day-to-day enabler who might have nipped the Smith crisis in its early stages, but didn't.

Genial and apologetic, Dr. Cairns admitted having overlooked one worrisome aspect of Dr. Smith's eroding act after another. On several occasions, Judge Goudge interrupted Dr. Cairns's narrative to ask: "By this time, had you lost faith in Dr. Smith?" The answer, repeatedly, was no.

In one telling exchange toward the end of his time on the witness stand, Dr. Cairns was asked by commission counsel Linda Rothstein whether he really ought to have disqualified himself from evaluating Dr. Smith's work, given the closeness of their relationship.

"It not only should have disqualified me, it probably should have disqualified the whole office," Dr. Cairns replied.

Some questions are answered, but many others remain involving a doctor who botched so many criminal autopsies, yet could score near-perfect marks in reviews of his non-autopsy work; who left seasoned judges convinced that his judgment was sound, yet who brought his 10-year-old son to watch a babys exhumation; who kept scraps of bones and tissue in his notoriously messy office; who stopped responding to phone calls from police and prosecutors desperate for his reports.

The true identity of Dr. Smith may at last be revealed when he is sworn in late next month. Until then, the enigma steadily deepens, the only certainty being that the office that learned to Think Dirty will not get away clean.

The Amber case

In 1988, 16-month-old Amber, of Timmins, Ont., died while in the care of her 12-year-old babysitter, S. M., who said the child had fallen down the stairs.

The death came at a time when the still-controversial shaken baby syndrome was working its way into forensic consciousness, and pathologist Charles Smith, who was deemed an expert, concluded that Amber died from brain injuries caused by severe shaking.

Nine other experts disagreed

In acquitting S. M. in 1991, Mr. Justice Patrick Dunn tore a strip off Dr. Smith, who had worked with other pathologists at the Hospital for Sick Children in Toronto on the case.

Judge Dunn attacked Dr. Smith on 16 points, including his failure to consider any other possibilities for the cause of death, and for concluding that Amber had been shaken to death even before performing the autopsy.