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Prosecutors' role queried in pathologist review

Chief coroner gives details for review of pathologist's work
Association for wrongly accused urges Crown attorney probe

The Toronto Star, HAROLD LEVY, STAFF REPORTER, Nov. 2, 2005

A Toronto-based group that fights for wrongly accused persons wants Ontario Attorney General Michael Bryant to call an inquiry into the role played by his prosecutors in cases involving disgraced pathologist Dr. Charles Smith.

The Association in Defence of the Wrongly Convicted called on Bryant to set up the inquiry yesterday after Chief Coroner Dr. Barry McLellan released details of an independent review of 44 cases involving Smith, including 10 where people are in prison or under some form of constraint such as parole.

Deaths under review

"It's one thing to examine the cases on the basis of forensic exhibits and court transcripts," association director Cindy Wasser told the Star. "But it's another to look into the heart of our justice system to learn why some parents were wrongly branded as murderers of their own children because of Dr. Smith's well-documented failings."

Wasser says the probe would have to focus on prosecutors because they are the public officials who call expert witnesses such as pathologists to testify for the Crown.

"The Attorney General should ask what happened in his office that enabled his prosecutors to continue using Dr. Smith, when so many of them had, for years, been expressing a concern about his work in the various cases that they had individually prosecuted," Wasser said.

"Bryant should also want to know whether his prosecutors ever complained to the Ontario Coroner's office about Smith — and why police departments continued to use Smith in their investigations in spite of public knowledge of his failings," Wasser said.

"This is about accountability to the public," the Toronto criminal lawyer said. "There is nothing to stop Mr. Bryant from setting up an inquiry into the workings of his own ministry while the current review is underway."

The Saskatoon Region Health Authority is meeting to decide whether Smith will be permitted to complete a one-year contract at Saskatoon City Hospital. Its decision will be announced at a public meeting on Nov. 16.

Jami Chaffe, president of the Ontario Crown Attorneys Association, could not be reached for comment.

Brenda Waudby, who was once charged with murdering her daughter Jenna in a case involving Smith, said in an interview the public needs to learn "how Smith's role in the justice system got so far out of control."

"I can't understand why the prosecutors would not have questioned every case in which Smith had been involved as an `expert' before they called him into court to testify against someone else. Prosecutors hold our freedom in their hands."

Waudby, whose case will be reviewed by the panel, suggested an inquiry should also look into the Ontario Coroner's office "to find out why they did not take action at a much earlier time, when information about Dr. Smith began surfacing."

But Bryant, questioned by reporters yesterday, did not directly say whether he would order a public inquiry. "We need to permit the chief coroner to do the review," he said.

With files from Kerry Gillespie


In June, Chief Coroner Dr. Barry McLellan announced an unprecedented review of cases in which Dr. Charles Smith had been involved, after concerns were expressed about conclusions the pathologist, working at the Hospital for Sick Children, had reached in several criminal cases.

McLellan said the review would apply to all criminally suspicious and homicide cases back to 1991, in which Smith had performed an autopsy or provided an opinion.

Yesterday, McLellan announced details of the review:

Purpose: To determine whether conclusions reached by Smith in his autopsy or consultation reports in the 44 cases are supported by available evidence.

Experts: The independent review is to be conducted by four pathologists with experience in various facets of forensic pathology. They are:

  • Dr. John Butt, previously chief medical examiner for Nova Scotia and Alberta;
  • Prof. Christopher Milroy, University of Sheffield, England;
  • Prof. Helen Whitwell, University of Sheffield, England;
  • Prof. Jack Crane, Belfast, a state pathologist for Northern Ireland.

Scope: The reviewers will have access to materials such as Smith's reports, police and forensic reports, photographs from the autopsy and death scene, and court transcripts.

Protocol: Each of the cases will be reviewed by one of the panel, but if concerns are raised the materials will be reviewed by two others and the three will attempt to reach a consensus.

Release of findings: McLellan will provide full details of the review to the families involved, and release "the overall results" to the public, including "the facts arising from the examinations and the conclusions reached." McLellan told reporters yesterday that the review is "an essential step" in maintaining public confidence in the work done by his office.