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

2
  1                        Appearances
  2  Linda Rothstein           )     Commission Counsel
  3  Mark Sandler              )
  4  Robert Centa              )
  5  Jennifer McAleer          )
  6  Johnathan Shime       (np) )
  7  Ava Arbuck           (np) )
  8  Tina Lie             (np)  )
  9  Maryth Yachnin       (np)  )
 10  Robyn Trask          (np)  )
 11  Sara Westreich       (np)  )
 12  
 13  Brian Gover               )     Office of the Chief Coroner
 14  Luisa Ritacca             )     for Ontario
 15  Teja Rachamalla           )
 16  
 17  Jane Langford        (np) )     Dr. Charles Smith
 18  Niels Ortved              )
 19  Erica Baron               )
 20  Grant Hoole               )
 21   
 22  William Carter            )     Hospital for Sick Children
 23  Barbara Walker-Renshaw(np) )
 24  Kate Crawford             )
 25

3
  1                   APPEARANCES (CONT'D)
  2  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
  3  Veena Verma          (np) )     Association
  4  Mara Greene          (np) )     Criminal Lawyers'
  5  Breese Davies        (np)  )    Association
  6  Joseph Di Luca       (np) )
  7  Jeffery Manishen           )
  8  
  9  James Lockyer        (np) )     William Mullins-Johnson, 
 10  Alison Craig         (np)  )    Sherry Sherret-Robinson and
 11  Phillip Campbell     (np) )     seven unnamed persons
 12  Peter Wardle              )     Affected Families Group
 13  Julie Kirkpatrick     (np) )
 14  Daniel Bernstein          )
 15  
 16  Louis Sokolov        (np) )     Association in Defence of
 17  Vanora Simpson             )     the Wrongly Convicted
 18  Elizabeth Widner      (np) )
 19  Paul Copeland         (np) )
 20  
 21  Jackie Esmonde        (np) )     Aboriginal Legal Services 
 22  Kimberly Murray      (np) )     of Toronto and Nishnawbe
 23  Sheila Cuthbertson    (np) )      Aski-Nation
 24  Julian Falconer           )
 25

4
  1                 APPEARANCES (cont'd)
  2  Suzan Fraser              )     Defence for Children 
  3                             )     International - Canada
  4  
  5  William Manuel     (np)    )    Ministry of the Attorney
  6  Heather Mackay     (np)   )     General for Ontario
  7  Erin Rizok          (np)   )
  8  Kim Twohig                 )
  9  Chantelle Blom     (np)    )
 10  
 11  Natasha Egan              )     College of Physicians and 
 12  Carolyn Silver     (np)   )     Surgeons
 13  
 14  Michael Lomer      (np)    )    For Marco Trotta
 15  Jaki Freeman               )
 16  
 17  Emily R. McKernan   (np)   )    Glenn Paul Taylor
 18  
 19  Michelle Booth     (np)    )    Robert Wood
 20  
 21  
 22  
 23  
 24  
 25

1 TABLE OF CONTENTS Page No. 2 3 CHARLES RANDALL SMITH, Resumed 4 5 Cross-Examination by Mr. Peter Wardle 6 6 Cross-Examination by Mr. Jeffery Manishen 61 7 Cross-Examination by Mr. Julian Falconer 84 8 Cross-Examination by Ms. Suzan Fraser 95 9 Cross-Examination by Mr. Brian Gover 108 10 11 12 13 14 Certificate of transcript 194 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:31 a.m. 2 3 MR. REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Mr. Wardle...? 7 8 CHARLES RANDALL SMITH, Resumed 9 10 CONTINUED CROSS-EXAMINATION BY MR. PETER WARDLE: 11 MR. PETER WARDLE: Good morning, Mr. 12 Commissioner. Good morning, Dr. Smith. 13 DR. CHARLES SMITH: Good morning. 14 MR. PETER WARDLE: Dr. Smith, on the 15 morning of June 13th -- afternoon -- I'm sorry, the 16 afternoon of June 13th, 1997 the body of a young girl 17 that we've known here as Sharon, arrived at the office of 18 the Chief Coroner. 19 And you were the pathologist who performed 20 the post-mortem examination, correct? 21 DR. CHARLES SMITH: That's correct, yes. 22 MR. PETER WARDLE: And you told us on -- 23 earlier in the week, that this was an autopsy that Dr. 24 Young insisted that you do, and that you were told that 25 through Mr. Blenkinsop, I believe.

1 DR. CHARLES SMITH: That's the best of my 2 recollection, yes. 3 MR. PETER WARDLE: And I'm not sure I 4 understood it clearly, but you seem to be suggesting that 5 that was because of your expertise in this area; the 6 pediatric expertise. 7 DR. CHARLES SMITH: You'd -- you'd be 8 best to ask Dr. Young exactly what his reasons were. 9 MR. PETER WARDLE: Would it be more fair 10 to suggest that there was simply a -- an allocation 11 problem in terms of staff pathologists over the weekend, 12 and you were the only person available to do this 13 particular autopsy. 14 DR. CHARLES SMITH: I -- I had some sense 15 of that. But again, that would best be answered perhaps 16 by someone from the office of the Chief Coroner. 17 MR. PETER WARDLE: Well, let's have a 18 look quickly at what you told Ms. O'Hara. And this is 19 again at Volume 1 of the Commission binders for your 20 evidence, Tab 14. And if we turn to page 24, this is 21 PFP303004. If we turn to the bottom of page 24, and Ms. 22 O'Hara says to you, sir: 23 "What do you think now?" 24 And you say: 25 "When the pathologist who actually

1 refused to do the autopsy that weekend 2 -- I wasn't supposed to do the autopsy. 3 This was not -- this was not the sort 4 of case that has to be done by a 5 pediatric pathologist. I was implored 6 by the office of the Chief Coroner to 7 do the autopsy because the pathologist 8 who was on on Friday was not on on the 9 weekend and the pathologist who was on 10 on the weekend couldn't do those kinds 11 of cases [sorry] couldn't do those kind 12 of cases, and it was quite clear the 13 autopsy wasn't going to be done on the 14 weekend, and they begged me to come 15 over and do it. I wasn't on call." 16 Do you see that? 17 DR. CHARLES SMITH: I see that, yes. 18 MR. PETER WARDLE: And does that suggest 19 sir, that the reason for you being the person assigned to 20 this particular autopsy was simply because there was a 21 staff problem and you were prepared to do it? 22 DR. CHARLES SMITH: I -- I don't recall 23 this conversation, but I do have some sense that there 24 were -- there were scheduling issues for the -- the 25 coroner's building.

1 MR. PETER WARDLE: Now you told us on 2 Monday, and in your written evidence, that when you first 3 examined the body, there were a series of penetrating 4 injuries; correct? 5 DR. CHARLES SMITH: Yes, to the extent 6 that I could see them, yes. 7 MR. PETER WARDLE: And you've told us 8 this week that you had little experience with penetrating 9 wounds. 10 Correct? 11 DR. CHARLES SMITH: That's correct. 12 MR. PETER WARDLE: And you noticed 13 immediately, sir, on the Friday that a large portion of 14 the scalp had been removed, correct? 15 DR. CHARLES SMITH: That's correct. 16 MR. PETER WARDLE: And that was highly 17 unusual, in your experience, correct? 18 DR. CHARLES SMITH: Yes. 19 MR. PETER WARDLE: In fact, you'd never 20 seen anything like this before, had you, sir? 21 DR. CHARLES SMITH: No. 22 MR. PETER WARDLE: Can you point to a 23 case you've ever been involved in where a mother scalped 24 her own child, sir? 25 DR. CHARLES SMITH: No, I cannot.

1 MR. PETER WARDLE: Have you ever even 2 heard of such a case? 3 DR. CHARLES SMITH: I can't think that I 4 have. 5 MR. PETER WARDLE: And you knew, sir, as 6 I understand it from your written evidence, of the 7 possibility that there was a dog in the house at the time 8 of the autopsy; correct? 9 DR. CHARLES SMITH: When I gave that 10 information that was the best of my recollection. I 11 think in looking through the documentation that the 12 Inquiry has that -- that have been errant. I may have 13 not have learned that until afterwards. So my 14 recollection at that time may have been wrong. 15 MR. PETER WARDLE: So your recollection 16 today is unclear as to when you learned that information. 17 DR. CHARLES SMITH: The best, I think, 18 for the purpose of the inq -- of the Inquiry, the best 19 information would be based on police documentation, not 20 on my recollection. 21 MR. PETER WARDLE: Now sir, the police 22 theory, which they shared with you at the autopsy was 23 that this was a stabbing possibly with scissors, correct? 24 DR. CHARLES SMITH: That's my 25 understanding, yes.

1 MR. PETER WARDLE: And you've admitted to 2 us this week that the possibility of a dog causing this 3 death was not one (1) that you considered initially, 4 correct? 5 DR. CHARLES SMITH: No, that's correct. 6 MR. PETER WARDLE: And you said in your 7 written evidence, and I can take you to it if you like -- 8 DR. CHARLES SMITH: Mm-hm. 9 MR. PETER WARDLE: -- that no one brought 10 that theory to your attention initially, correct? 11 DR. CHARLES SMITH: That's correct. 12 MR. PETER WARDLE: And acknowledge today, 13 sir that your role as a pediatric forensic pathologist 14 was not to limit yourself to the police theory, but to 15 think broadly about all the potential causes of this 16 girl's death, correct? 17 DR. CHARLES SMITH: That's correct. 18 MR. PETER WARDLE: You didn't examine the 19 scalp closely, sir, correct? 20 DR. CHARLES SMITH: No. No, when -- by 21 the time I looked at the scalp and recorded it, it was 22 two (2) days later, but I -- but I didn't do anything 23 other then -- then make the observations that are 24 represented in my report because the intention was for 25 the scalp to be first examined entomologically before it

1 was examined pathologically. 2 MR. PETER WARDLE: And you told Mr. 3 Bradley sometime later, Mr. Bradley, the Crown attorney-- 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: -- that you just did a 6 gross visual examination. 7 DR. CHARLES SMITH: That's correct. 8 MR. PETER WARDLE: Do you recall saying 9 that to him? 10 DR. CHARLES SMITH: Well, I don't recall 11 that conversation. I don't recall that statement, I 12 should say, in that conversation, but that would -- that 13 would be the -- a description of what I did as was 14 recorded in the autopsy reports, yes. 15 MR. PETER WARDLE: According to Mr. 16 Bradley's notes, and they're referred to in the overview 17 report at paragraph 323, but I'm not going to suggest we 18 turn that up -- 19 DR. CHARLES SMITH: That's fine. 20 MR. PETER WARDLE: -- Mr. Bradley, in a 21 conversation with you much later in the case, in late 22 2000 or early 2001 -- 23 DR. CHARLES SMITH: Mm-hm. 24 MR. PETER WARDLE: -- he has it recorded 25 that you told him that the concern at the time was to get

1 it examined for head lice, which was indicated as a 2 possible motive. 3 DR. CHARLES SMITH: That's correct. 4 That's correct. 5 MR. PETER WARDLE: In other words, you 6 didn't shave the scalp at that time, correct? 7 DR. CHARLES SMITH: No, no. 8 MR. PETER WARDLE: You didn't examine it 9 microscopically? 10 DR. CHARLES SMITH: No, no. 11 MR. PETER WARDLE: And that's something 12 in retrospect that you realise you should have done. 13 DR. CHARLES SMITH: The -- the shaving of 14 -- shaving to get a better look at the edges is something 15 which, as I have read the reviewer's comments, I 16 recognise would have been the best practice. 17 MR. PETER WARDLE: And in fact when the 18 scalp did come back from the entomologist who had looked 19 at it, it was no longer in a condition to be examined. 20 DR. CHARLES SMITH: That's correct. 21 MR. PETER WARDLE: And I just want to 22 take you quickly, sir, to your evidence at the 23 preliminary inquiry in this case, and it's in the 24 overview report at paragraph 181. 25

1 (BRIEF PAUSE) 2 3 MR. PETER WARDLE: Do you have that in 4 front of you, sir? 5 DR. CHARLES SMITH: I have that, yes. 6 MR. PETER WARDLE: And that's PFP144453 7 at page 77. And I'll just read this to you, sir: 8 "During cross-examination by Mr. 9 Rumble, Dr. Smith testified about the 10 scalp. 11 Q: In photo number D-18 it appears to 12 me that a large portion of the scalp 13 from near the front was ripped off, 14 would that be fair to say? 15 A: Well, first, I wouldn't use the 16 word "ripped off." I think that would 17 be misleading. The scalp was excised; 18 it was removed; it wasn't ripped of. 19 Q: By excised you mean deliberately 20 cut out, is that correct? 21 A: Well, I mean I would have said cut 22 out and perhaps not use the word 23 "deliberate", but my opinion was, yes, 24 it was deliberately cut out. 25 Q: In your opinion, what was the

1 instrument that was used to cut it? 2 A: I think the best explanation is a 3 pair of scissors. 4 Q: How did you determine that the 5 scalp was cut as opposed to torn off? 6 A: It's the wound edge. The wound 7 edge was remarkably smooth, both to the 8 naked eye, as well as to microscopic 9 examination." 10 In fact, sir, you had never done a 11 microscopic examination of the scalp. 12 DR. CHARLES SMITH: I -- I'm sorry. 13 14 (BRIEF PAUSE) 15 16 DR. CHARLES SMITH: Yes, the scalp was 17 listed in my autopsy report in the section on microscopic 18 findings. 19 MR. PETER WARDLE: So was this correct 20 what you said at the Preliminary Inquiry, you did examine 21 the scalp microscopically? 22 DR. CHARLES SMITH: That statement I made 23 here is it looked to me like it had been removed with a 24 sharp instrument -- oh wait, yeah, both to the naked eye, 25 as well as to microscopic examination.

1 If you flip to Tab 2 of that -- of this 2 binder -- 3 MR. PETER WARDLE: Yes, sir. 4 DR. CHARLES SMITH: -- PFP011179/8, this 5 would be page 8 of the autopsy report on Sharon. The 6 major heading is "Five (5) microscopic and laboratory 7 findings", and at the very bottom of that I note, 8 "Scalp, there was acute hemorrhage 9 along the lines of excision." 10 So that wa -- the scalp was examined 11 microscopically. 12 MR. PETER WARDLE: So when you said to 13 Mr. Bradley in 2001 that you just did a gross visual 14 examination as the concern at the time was to get it 15 examined for head lice, as that was indicated as a 16 possible motive for the attack. 17 DR. CHARLES SMITH: Yes, yeah. 18 MR. PETER WARDLE: Were you -- were you - 19 - was that correct? 20 DR. CHARLES SMITH: Yes, it was. Yes, 21 the initial examination was naked eye examination. The 22 scalp was then submitted for entomologic examination, and 23 afterwards I took a microscopic section or sections. 24 MR. PETER WARDLE: So after the scalp had 25 been in, as I understand it, Indiana --

1 DR. CHARLES SMITH: Yes. 2 MR. PETER WARDLE: -- with this gentleman 3 and -- 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: -- came back, and you 6 told me at that stage it was in no shape to be examined, 7 is that when you examined it microscopically? 8 DR. CHARLES SMITH: That's when the 9 sections were taken, yes, yes. 10 MR. PETER WARDLE: Can we agree now that, 11 sir, that this information that you provided at the 12 Preliminary Inquiry, which was critical, wasn't it, the 13 information about whether the wound edge was clean, 14 sharp, or ragged, jagged, and you understand the 15 distinction. 16 DR. CHARLES SMITH: Mm-hm, yes. 17 MR. PETER WARDLE: You led Mr. Rumble to 18 believe that you had closely examined the scalp under a 19 microscope. 20 DR. CHARLES SMITH: Well, I -- I can't 21 say that I led him to believe that I did at the time; the 22 microscopic examination was much later. The -- the 23 tissues had been fixed, but it hadn't been fixed and 24 pinned out in -- in an optimum way, and so the -- 25 ultimately the -- the amount of information which could

1 be garnered from it retrospectively, and I realise now, 2 could -- could be much greater, but I recognise that that 3 represents my lack of -- of knowledge on wound edge 4 interpretation. 5 So the information that I gave at the 6 Preliminary was -- was based on my naked eye observation. 7 It was based on microscopic examination, and so I gave as 8 much information as I knew and had, and I certainly did 9 not intend to mislead anyone. 10 MR. PETER WARDLE: And you told Mr. 11 Bradley that you hadn't measured the depth of one (1) of 12 the key wounds, and that's the penetrating wound in the 13 neck. 14 Do you recall saying that to Mr. Bradley? 15 DR. CHARLES SMITH: Yes, yeah. Yes, I -- 16 I sincerely regret having -- having not measured the 17 depth of that. 18 MR. PETER WARDLE: And that, of course, 19 was something that would have been of great assistance to 20 all the other experts who looked at this case later, 21 correct? 22 DR. CHARLES SMITH: Ul -- ultimately, 23 yeah, I came to realise that that became really -- really 24 the -- one (1) of the critical wounds in understanding 25 this.

1 MR. PETER WARDLE: And you've admitted in 2 your written evidence, sir, have you not, that you made a 3 number of basic errors in your post-mortem examination in 4 this case? 5 DR. CHARLES SMITH: We -- we can go over 6 that, yes. 7 MR. PETER WARDLE: At page 83 of your 8 written evidence. 9 DR. CHARLES SMITH: Yes. 10 MR. PETER WARDLE: Do you agree with me 11 that you made a number of basic errors? 12 DR. CHARLES SMITH: Yes, I recognise 13 those. 14 MR. PETER WARDLE: And you didn't do a 15 complete or thorough post-mortem examination, did you, 16 sir? 17 DR. CHARLES SMITH: I did one (1) which 18 was as thorough and complete as I -- as I understood, but 19 that represents my lack of understanding of what is 20 required in wound interpretation. 21 MR. PETER WARDLE: And is it correct, 22 sir, that one (1) of the reasons you didn't do a thorough 23 examination is because you simply accepted and reinforced 24 the working theory of the police that this girl had been 25 killed by stab wounds caused by scissors?

1 DR. CHARLES SMITH: Well, I don't know 2 that I could have indicated it was scissors. Certainly - 3 - certainly no small amount of time was spent trying to 4 follow wound tracks to see if they could be explained on 5 a scissor basis, but -- but at no point did I -- did I 6 understand that what I was looking at was anything other 7 than stab wounds. 8 It was not for the point -- for the 9 purpose of supporting the police theory, but rather, from 10 what I saw, that was, really, the only -- the only thing 11 I had on my differential diagnosis because I -- I could 12 not think of anything else that could explain the pattern 13 of injuries that I saw. 14 MR. PETER WARDLE: Now, you, sir, in your 15 written evidence, and to a certain extent, in your oral 16 evidence this week, have told us about the request you 17 made to have Dr. Wood look at this body, correct? 18 DR. CHARLES SMITH: Yes. 19 MR. PETER WARDLE: And let's just look at 20 that for a minute, if we may, it's in your written 21 document -- 22 DR. CHARLES SMITH: Yes. 23 MR. PETER WARDLE: -- at page 83. 24 25 (BRIEF PAUSE)

1 2 MR. PETER WARDLE: And this is PFP303346, 3 page 83. 4 DR. CHARLES SMITH: I have that. 5 MR. PETER WARDLE: 6 "Dr. Smith did consider whether or not 7 there were any dog bites on Sharon, 8 though not as a potential cause of 9 death. Dr. Smith believes that he and 10 Mr. Blenkinsop discussed requesting Dr. 11 Wood to come and see the body." 12 That's the late Mr. Blenkinsop, isn't it? 13 DR. CHARLES SMITH: That's correct, yes. 14 MR. PETER WARDLE: 15 "Dr. Wood was not only an expert 16 consultant in bite wounds, but was also 17 frequently consulted by the Office of 18 the Chief Coroner to interpret wounds 19 generally. Since these were clearly 20 penetrating wounds, Dr. Smith had no 21 objection to gaining from Ms. -- Dr. 22 Wood's insight. And Dr. Smith believes 23 that he understood Mr. Blenkinsop was 24 going to speak to Dr. Young at the next 25 morning case conference and make the

1 necessary arrangements to enable Dr. 2 Wood's examination. Dr. Smith 3 understood that Dr. Wood was frequently 4 in the OCCO building for various 5 consultations. When he left the OCCO 6 building, after Sharon's post-mortem 7 examination, he thought Dr. Wood would 8 be looking at the body in the next few 9 days." 10 Have I read that correctly? 11 DR. CHARLES SMITH: That's correct. 12 MR. PETER WARDLE: Sir, I'm going to 13 suggest to you that that is simply a complete 14 fabrication. 15 DR. CHARLES SMITH: No, you're absolutely 16 wrong. 17 MR. PETER WARDLE: Let's have a look at 18 the overview report, sir, at paragraph 74 -- 19 20 (BRIEF PAUSE) 21 22 MR. PETER WARDLE: -- and this is page 33 23 of PFP144453. And this is the conversation you had with 24 Constable Goodfellow in a telephone call on June 17th. 25 Now, recall, Dr. Smith, that this autopsy

1 took place on two (2) days; first on the Friday when the 2 body arrived which was the 13th, and then the full 3 autopsy proper was done on the Sunday, correct? 4 DR. CHARLES SMITH: And I believe x-rays 5 were done on Saturday, but we can check that if -- if 6 need be. 7 MR. PETER WARDLE: So this conversation, 8 if Constable Goodfellow's notes are to be believed, took 9 place on the Tuesday. 10 DR. CHARLES SMITH: That would make 11 sense. 12 MR. PETER WARDLE: And you'll see it 13 starts out by saying: 14 "We have concerns about upper back 15 marks. 16 A: Not domestic or an -- or wild 17 animal in any way." 18 And I'll come back to that comment a 19 little later, but it -- do you agree with me this much, 20 that it's clear from these notes that you and Constable 21 Goodfellow were discussing whether these particular 22 wounds -- "upper back marks" -- could have been made by 23 some kind of animal? 24 DR. CHARLES SMITH: That's correct. 25 MR. PETER WARDLE: And, sir, if you had

1 left the OCCO building on the Sunday, convinced that Dr. 2 Wood was going to be looking at the body in the next few 3 days, wouldn't you have told Constable Goodfellow about 4 that? 5 DR. CHARLES SMITH: No, not necessarily. 6 Because Mr. Blenkinsop was, as I understood, was simply 7 going to ask Dr. Wood to have a look at it, as I 8 understood was sort of the way that -- that business was 9 often done there. 10 Now I don't kno -- and I say that's my 11 understanding, because I'd, you know, that wasn't -- I 12 wasn't a part of the way that business was done there. 13 So that type of informal conversation was one which, as I 14 understood, occurred in the background in that building, 15 in the same way that informal conversations or 16 consultations occur in any -- in a pathology department, 17 anywhere, essentially. 18 So -- so that would not necessarily be 19 anything that I wouldn't -- I wouldn't -- it wouldn't 20 necessarily come to mind. But I -- I don't have any -- 21 any clear recollection of this conversation. So I can't 22 say anything about -- about -- specific about your -- 23 your answer. 24 MR. PETER WARDLE: Wouldn't the 25 natural thing to say to a police officer, who's asking

1 you about possible animal marks on a body, would be to 2 say, We're calling in the guy who knows all about that 3 stuff, Dr. Wood. And he'll be along shortly to look at 4 the body. 5 Isn't that what you would have said? 6 DR. CHARLES SMITH: That certainly wasn't 7 what came to my mind. I was asked -- it -- from here, it 8 looks like I was asked about whether I thought there were 9 -- the marks could be explained by a dog. And to the 10 best of my ability I answered them. 11 MR. PETER WARDLE: Well, keep looking, 12 Dr. Smith. 13 DR. CHARLES SMITH: Mm-hm. 14 MR. PETER WARDLE: Let's look a little 15 further down: 16 "Are you satisfied body can be 17 released? A: Not at this time, should 18 know later today." 19 DR. CHARLES SMITH: Yes. 20 MR. PETER WARDLE: If Dr. Wood was coming 21 to look at the body, you wouldn't have been in a position 22 to release it. 23 DR. CHARLES SMITH: The decision on 24 releasing it is, you know, ultimately, it's released from 25 the Coroner's Building. I'm not at the Coroner's

1 Building. I'm not sure that this comment makes any 2 reference -- necessarily makes any reference to Dr. Wood. 3 And -- 4 MR. PETER WARDLE: Dr. Smith -- 5 DR. CHARLES SMITH: Mm-hm. 6 MR. PETER WARDLE: -- if you left the 7 OCCO building on the Sunday, after Sharon's post-mortem 8 examination, as you say in your written evidence -- 9 DR. CHARLES SMITH: That's correct. 10 MR. PETER WARDLE: -- thinking that Dr. 11 Wood would be looking at the body in the next few days, 12 you wouldn't have told the police to release the body. 13 DR. CHARLES SMITH: No -- no -- the 14 police don't release the body. It's the Coroner's Office 15 that releases the body. 16 MR. PETER WARDLE: You wouldn't have told 17 the police that the body would be released. 18 DR. CHARLES SMITH: No, they said, Are 19 you satisfied it can be released? And I don't know what 20 I was thinking at that point; whether it had to do with 21 x-rays or whatever. But the answer, I -- I gave is 22 recorded here, but I can't tell you what my reasoning 23 was. I simply don't remember. 24 MR. PETER WARDLE: Dr. Smith, we know 25 from contemporaneous notes, that Sharon's funeral took

1 place the very next day on June 18, 1997. 2 DR. CHARLES SMITH: Well, you know that, 3 I don't. 4 MR. PETER WARDLE: And that -- that, Mr. 5 Commissioner, is from some notes of Detective Sergeant 6 Bird at PFP085377, and I won't turn them up. 7 Barry Blenkinsop, the brilliant autopsy 8 assistant, would not have released the body to be buried, 9 if Dr. Wood was coming to look at it, would he? 10 DR. CHARLES SMITH: I -- that would be -- 11 that's reasonable, but I can't speculate on what he may 12 or may not have done, or whether Dr. Wood had been over 13 there. I have no idea. 14 When I left, it was my understanding from 15 Barry that -- that he was going to ask Bob -- ask Dr. 16 Wood -- for the same kind of consultation, informal 17 consultation that he did with Dr. Wood from time-to-time 18 to see -- to use Dr. Wood's overview as a screen -- sort 19 of a screening tool to see whether or not he had to have, 20 you know, greater involvement or it was one of those, you 21 know, No, I can't help kind of things. 22 So that was my understanding of the 23 conversation. 24 MR. PETER WARDLE: You've also told us, 25 sir, in your written evidence that, and this is at

1 page 84, that prior to the preliminary inquiry, you did 2 not realize that Dr. Wood's opinion was based exclusively 3 on a review of the photographs and tissue slides, 4 correct? 5 DR. CHARLES SMITH: That's correct. 6 MR. PETER WARDLE: And you didn't become 7 aware of that until some time later? 8 DR. CHARLES SMITH: That's correct. 9 MR. PETER WARDLE: Sir, if you had 10 attended a meeting with Dr. Wood about this case prior to 11 the preliminary inquiry, at the Office of the Chief 12 Coroner, surely Dr. Wood would have shared with you on 13 what basis he was giving his opinion. 14 DR. CHARLES SMITH: And -- and he could 15 have, and I don't have any recollection of that. My only 16 recollection was how certain he -- he was. Beyond that, 17 I cannot speculate on what he may or may not have said 18 because I have no specific recollection. 19 MR. PETER WARDLE: You told us on Monday 20 -- in fact, it was in answer to a question from the 21 Commissioner. You were asked why you were so definitive 22 at the preliminary inquiry, and what you said, sir, is 23 that you were told by the Crown that the defence wanted 24 to make a big issue of this. I take it "this" being the 25 dog theory. You expected Dr. Wood to testify and when

1 you found out that he was not testifying, the Crown said 2 to you, in effect, we want you to give this opinion. 3 DR. CHARLES SMITH: Yes. 4 MR. PETER WARDLE: Do I have that right? 5 DR. CHARLES SMITH: Yes. That's -- I 6 think that's a good... 7 MR. PETER WARDLE: So, do I have it 8 right, sir, that not only are you saying that you were 9 inexperienced and the real expert was Dr. Wood, and you 10 relied on the real expert, Dr. Wood, but it was the Crown 11 who persuaded you to give misleading and incorrect 12 testimony at Ms. Reynolds' preliminary inquiry? Is that 13 what you are saying? 14 DR. CHARLES SMITH: That's a strong 15 statement because certainly, at no point, did I ever 16 think that the opinion on the dog bite was wrong or 17 misleading. I've -- I recognize and I admit my mistakes 18 in the evidence that I gave in the certainty or the 19 concrete nature of my opinion. 20 But never once did I perceive that the 21 information I was giving was not diagnostically accurate. 22 MR. PETER WARDLE: You know, what you've 23 been saying to us this week, sir, -- 24 DR. CHARLES SMITH: Mm-hm. 25 MR. PETER WARDLE: -- with respect, is

1 that you were uncertain, this wasn't your area of 2 expertise, and you knew that at the time but somehow you 3 were persuaded to give this evidence because Dr. Wood had 4 given this opinion and the Crown was kind of pushing you 5 to do this. 6 Isn't that -- isn't that the tenor of the 7 evidence you gave earlier in the week? 8 DR. CHARLES SMITH: The -- I -- I had 9 some certainty based on my own limited knowledge and 10 understanding of what a -- what a dog bite would look 11 like, albeit, I recognize that was an incomplete or in 12 error because obviously it did not include the -- the 13 total spectrum of possibilities that we see here. 14 The -- but the -- the concrete or the 15 solidity of my -- of my opinion was -- was one which, you 16 know, which was supported by -- by Dr. Wood and that was 17 the error that I -- that I made. I gave the strong 18 opinion, and I recognize I should not have given such a 19 strong opinion but rather pointed to the fact that there 20 was a strong opinion that I was aware of. That was the 21 mistake. That's a mistake that I believe I made. 22 MR. PETER WARDLE: So you weren't pushed 23 by the Crown to give that opinion, were you, sir? 24 DR. CHARLES SMITH: I wasn't pushed by 25 the Crown to give --

1 MR. PETER WARDLE: You weren't by -- 2 pushed by Mr. McKenna to give an over -- certain over- 3 definitive opinion, were you, in fairness to him? 4 DR. CHARLES SMITH: I certainly felt I 5 was. I certainly felt it was -- 6 MR. PETER WARDLE: And you still feel 7 that today? 8 DR. CHARLES SMITH: I certainly felt that 9 my job was to dismiss the -- the issue of -- 10 MR. PETER WARDLE: Oh, I know what you 11 felt, sir. 12 DR. CHARLES SMITH: Yeah. 13 MR. PETER WARDLE: I know what you felt. 14 You've told us repeatedly, -- 15 DR. CHARLES SMITH: Mm-hm. 16 MR. PETER WARDLE: -- that you felt your 17 job was to support the theory of the Crown and the 18 police, and that's what you did in this case, right? 19 DR. CHARLES SMITH: I supported what I 20 thought was to be the correct diagnosis. 21 MR. PETER WARDLE: I'm asking you about 22 what you said earlier this week about the Crown. 23 DR. CHARLES SMITH: Yes. 24 MR. PETER WARDLE: Because, Dr. Smith, as 25 you've attempted to so often, you're trying to cast blame

1 on others here; you're trying to say, it's the Crown who 2 made me do this. 3 DR. CHARLES SMITH: No, I didn't say the 4 Crown made me do it. The Crown made it very clear to me 5 they wanted this issue put aside, they were not calling 6 Dr. Wood because they did not want to give credibility to 7 it. 8 They wanted me to handle the issue in the 9 absence of Dr. Wood. What out -- and those are -- 10 obviously are not Mr. McKenna's exact words, and he can 11 tell you what his exact words or -- or Jennifer -- I'm 12 sorry, I've forgotten her last name, the -- the Assistant 13 Crown might answer that question. 14 MR. MARK SANDLER: Ferguson. 15 16 CONTINUED BY MR. PETER WARDLE: 17 MR. PETER WARDLE: Ferguson is her name. 18 DR. CHARLES SMITH: Thank you, yes. My 19 role, as I -- you know, as I -- as I heard what Mr. 20 McKenna wanted, was what -- was what I've stated to you. 21 MR. PETER WARDLE: Isn't it more 22 accurate, sir, that your mind set at the time was exactly 23 what you reflected in your evidence at the preliminary 24 inquiry, namely, that you were completely certain in your 25 opinion and you didn't need Dr. Wood or anyone else;

1 that's the evidence you gave, isn't it? 2 DR. CHARLES SMITH: And that -- and that 3 evidence was expressed in over certainty that I should 4 not have expressed retrospectively. I see the error that 5 I made. 6 MR. PETER WARDLE: Well, let's go back 7 now, if we can, because I wanted to pick this up again, 8 to your conversation with Constable Goodfellow. 9 DR. CHARLES SMITH: All right. 10 MR. PETER WARDLE: It's at paragraph 74 11 of the overview report, PFP144453 at page 33. 12 DR. CHARLES SMITH: I have it, yes. 13 MR. PETER WARDLE: 14 "We have concern -- concerns about 15 upper back marks not domestic or wild 16 animal in any way." 17 And you don't deny, as I understand, that 18 that conversation took place. 19 DR. CHARLES SMITH: No, I don't deny it. 20 MR. PETER WARDLE: And you agree, sir, 21 that you could not have been more definitive in the 22 opinion you gave at that time to Constable Goodfellow at 23 this critical stage of this police investigation? 24 DR. CHARLES SMITH: I can't answer that. 25 Your question is to the possibility of being more

1 definitive, because I don't recall the conversation, so I 2 don't recall how definitive I was. 3 MR. PETER WARDLE: We've heard from a 4 police officer involved in the investigation that what 5 was being reflected back to the officers who were running 6 that investigation was that you were definitive, sir. 7 DR. CHARLES SMITH: Yes, that could well 8 be their interpretation, but I can't answer the level of 9 my definitiveness on this question without being able to 10 remember the conversation. 11 I accept their interpretation; I have no 12 reason to dispute it, but I can't answer your question 13 about my definitiveness because I have no recollection of 14 this conversation. 15 MR. PETER WARDLE: And if these notes are 16 accurate, sir, you didn't ask Constable Goodfellow any 17 questions? 18 DR. CHARLES SMITH: Well, I have no 19 recollection of the conversation; I don't know what went 20 on. 21 MR. PETER WARDLE: But if these notes are 22 accurate, sir, you did not ask him any questions -- 23 DR. CHARLES SMITH: Well, no, your -- 24 MR. PETER WARDLE: -- about the animal. 25 DR. CHARLES SMITH: Your question -- your

1 -- your statement should be, if these not only are 2 accurate, but represent the entire conversation. If this 3 is the entire conversation, then I accept that -- that he 4 did -- that such a question did not occur; if this is not 5 a complete transcription of the conversation, then 6 anything could have been said. 7 I have no recollection. 8 MR. PETER WARDLE: Well, it appears from 9 your written evidence that you didn't ask any questions 10 because you didn't learn about much of the information 11 the police had until some time later. 12 DR. CHARLES SMITH: Until much later, 13 yes. 14 MR. PETER WARDLE: Right. So you 15 obviously didn't ask any questions during this 16 conversation, sir. 17 DR. CHARLES SMITH: I'm not -- I can't 18 say whether I did or didn't because I have no 19 recollection. 20 MR. PETER WARDLE: So, is it fair to say, 21 based on what we have here, sir, that you, Dr. Smith, Dr. 22 Charles Randall Smith, the leading pediatric forensic 23 pathologist in Canada -- 24 DR. CHARLES SMITH: I -- I disagree with 25 that statement.

1 MR. PETER WARDLE: -- could dismiss this 2 suggestion without giving it a moment's pause? 3 DR. CHARLES SMITH: No, the -- the 4 question was asked of me to the best -- as -- as it would 5 be here. I've given an answer that would have been the 6 best answer that I could have given based on my knowledge 7 and recollection. 8 To suggest that I didn't give it a 9 moment's pause is speculation on your part and I would 10 resist such speculation. 11 MR. PETER WARDLE: When we go further in 12 the chronology, sir, and we now have a charge, and my 13 client is charged with murder, the murder of her 14 daughter, and she's in custody, and the police theory is 15 that she scalped her daughter with a pair of scissors -- 16 DR. CHARLES SMITH: That's correct. 17 MR. PETER WARDLE: -- you held firm to 18 that opinion, didn't you, sir? 19 DR. CHARLES SMITH: Yes, I thought that 20 was a reasonable explanation for what I saw. 21 MR. PETER WARDLE: And at some time 22 before the preliminary inquiry you became aware that the 23 defence was raising the dog as a theory of the cause of 24 death, didn't you? 25 DR. CHARLES SMITH: That's correct.

1 MR. PETER WARDLE: And let's look at a 2 moment -- for a moment at the Hospital for Sick Children 3 final autopsy report, and that's in the overview report 4 at paragraph 60. 5 6 (BRIEF PAUSE) 7 8 MR. PETER WARDLE: Page 20 of -- yeah, we 9 got it. Do you have paragraph 60 of the overview report, 10 sir? 11 DR. CHARLES SMITH: I'm trying to find 12 where -- I have -- yes, I'm sorry, I finally have pa -- 13 number 60, yes. 14 MR. PETER WARDLE: Now, just to orient 15 you, we've heard evidence that this document was prepared 16 for hospital purposes usually, correct? 17 DR. CHARLES SMITH: Yes, that's -- that's 18 right. 19 MR. PETER WARDLE: And that it would be 20 prepared contemporaneous with the completion of your 21 post-mortem report, correct? 22 DR. CHARLES SMITH: Yes, it would be 23 signed out then, yes. 24 MR. PETER WARDLE: So, your post-mortem 25 report, as we can see from the next paragraph, is dated

1 March 8, 1998. 2 So this is prior to the preliminary 3 inquiry, correct? 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: And you'll see in the 6 HSC final autopsy report under "Short history": 7 "This girl was found stabbed to death 8 in her mother's home. The mother 9 initially indicated that the family 10 dog, a pit bull, was covered in 11 ketchup, but later blamed Sharon's 12 death on dog bites." 13 Do you see that? 14 DR. CHARLES SMITH: I see that, yes. 15 MR. PETER WARDLE: So you were 16 unequivocal at the beginning, sir, at the time of the 17 autopsy, correct? 18 DR. CHARLES SMITH: Unequivocal, I'm 19 sorry? 20 MR. PETER WARDLE: Unequivocal in your 21 view about cause of death at the time of the initial 22 autopsy. 23 DR. CHARLES SMITH: Yes. Yes. 24 MR. PETER WARDLE: You were unequivocal 25 at the time the post-mortem report was prepared, correct?

1 DR. CHARLES SMITH: Yes. Yes. 2 MR. PETER WARDLE: You were unequivocal 3 at the preliminary inquiry in the evidence you gave, sir, 4 correct? 5 DR. CHARLES SMITH: Yes, that's correct. 6 MR. PETER WARDLE: And even afterwards, 7 sir, you continued to express your certainty about your 8 conclusions, correct? 9 DR. CHARLES SMITH: I'm not sure just 10 what you mean by that. 11 MR. PETER WARDLE: Up to the point where 12 you lost the casts. 13 DR. CHARLES SMITH: No, the -- the 14 misplacing of the cast has nothing to do with my opinion 15 because I never -- I never recognised that the cast may 16 or may not be of any -- of any value whatsoever. It was 17 done at -- for the purpose that I described in my -- in 18 my testimony at the Preliminary. 19 The cast is a red herring on the issue of 20 -- of my di -- of the diagnosis, my diagnosis. 21 MR. PETER WARDLE: It's a red herring. 22 DR. CHARLES SMITH: Yes, yeah. 23 MR. PETER WARDLE: Like the hair, a red 24 herring? 25 DR. CHARLES SMITH: No, no.

1 MR. PETER WARDLE: Like the hair in 2 Jenna's case? 3 DR. CHARLES SMITH: No, that is -- no. 4 No, I -- I don't -- I don't think it would be of value to 5 mix cases like that. The cast did not provide any 6 information to me and it was my understanding that it did 7 not provide any information to Dr. Wood's. 8 MR. PETER WARDLE: Dr. Smith, the cast 9 was marked as an exhibit at the preliminary inquiry, and 10 you took it away with you in a bag, correct? 11 DR. CHARLES SMITH: Yes. 12 MR. PETER WARDLE: And then you lost it. 13 DR. CHARLES SMITH: I put it on my shelf 14 in my office, and I -- that was the last that I saw of 15 it. 16 MR. PETER WARDLE: You -- you lost an 17 exhibit from an ongoing judicial proceeding -- a criminal 18 proceeding where a woman was in custody accused of having 19 murdered her child with a pair of scissors. 20 DR. CHARLES SMITH: Yes, and let me be 21 clear here. I am -- I regret that that cast was lost. 22 It was not an act of co-mission (phonetic) on my part. I 23 put it in my office. That was the last time I ever saw 24 it. 25 At the time of the preliminary inquiry, it

1 was my understanding that the judge had recognized it to 2 be something that was proffered, but did not -- as -- as 3 I understood it, did not regard it to be evidence that -- 4 that was for him to consider. 5 But I recognize that in placing it on the 6 shelf in my office there -- there should have been, and I 7 should have followed a much better approach in terms of 8 safeguarding or sequestering it, so that it could not be 9 discarded. 10 MR. PETER WARDLE: Well, there were a lot 11 of things on those shelves, weren't there, Dr. Smith? 12 DR. CHARLES SMITH: Yes. 13 MR. PETER WARDLE: There was the slides 14 from Valin's case, somewhere in your office. 15 DR. CHARLES SMITH: That's correct. 16 MR. PETER WARDLE: There was the hair 17 that you'd put in an envelope and tucked away in your 18 office. 19 DR. CHARLES SMITH: Yes. 20 MR. PETER WARDLE: And there was the 21 cast. 22 DR. CHARLES SMITH: Yes. 23 MR. PETER WARDLE: Now, am I right that 24 you held to the certainty of your opinion, in this case, 25 until Dr. Young and Dr. Cairns went to a conference in

1 the United States and came back expressing some concern; 2 that they had run into other experts who thought there 3 was a potential miscarriage of justice in this case. 4 DR. CHARLES SMITH: The -- I was at that 5 conference as well. I was unaware of those -- to the 6 best of my recollection, I was unaware of those -- of 7 those issues. 8 My next recollection of that dealt with 9 the -- the case conference which was some time after the 10 AAFS meeting. It would have been a month later -- six 11 (6) weeks later, something like that. 12 So it would be, either at the case 13 conference or in that period of time, that I was -- that 14 I became aware that people had spoken with Dr. Young. 15 In fact, people who I know and had talked 16 with, had spoken with Dr. Young about -- about my 17 opinion. They did not speak to me about it. 18 And, so the case conference was -- was 19 held. 20 MR. PETER WARDLE: And Dr. Wood was at 21 this case conference, was he not? 22 DR. CHARLES SMITH: Yes, I believe he 23 was. Yes. 24 MR. PETER WARDLE: And even then -- even 25 after international experts had raised concerns about

1 your findings in this case; and you'd lost this cast; and 2 you had Dr. Young and Dr. Cairns beginning to question 3 you, you still held fast to your opinion, did you not? 4 DR. CHARLES SMITH: Once the issue came 5 up at the conference, I remember -- I remember some of 6 the conversation there, and -- and because it was an 7 issue of exhumation, because it was an issue of dog bite, 8 and there was clearly differences in opinion between 9 odontologists at that point, my opinion was one (1) which 10 was certainly coming under reconsideration, both by me, 11 and by others. 12 The next time that I put in writing -- 13 recorded what my opinion was -- because I don't believe I 14 expressed it at the meeting, was when, in fact, sometime 15 later, I was instructed to write a second, or an amended, 16 or an additional autopsy report. 17 MR. PETER WARDLE: Sir, in your written 18 opinion -- sorry, your written evidence -- 19 DR. CHARLES SMITH: Yes. 20 MR. PETER WARDLE: -- this week at page 21 85, PFP303346. 22 DR. CHARLES SMITH: Yes. 23 MR. PETER WARDLE: You'll see you 24 describe the meeting in March of '99, do you see that? 25 DR. CHARLES SMITH: Yes, mm-hm.

1 MR. PETER WARDLE: And then you say, sir, 2 and I want you to consider this carefully: 3 "Dr. Smith does not recall much about 4 the meeting, except that he knew that 5 both supported an exhumation and a 6 second post-mortem examination to 7 confirm that Dr. Smith's original 8 conclusions were accurate, i.e., he 9 believed the second post-mortem 10 examination was to rule out dog 11 involvement once and for all. Dr. 12 Smith found this puzzling in light of 13 Dr. Wood's opinion, which he understood 14 was unequivocal." 15 Sir, do I read that right that you found 16 it puzzling that the Office of the Chief Coroner was 17 ordering an exhumation in this case? 18 DR. CHARLES SMITH: The -- the problem -- 19 the -- the whole situation to me was puzzling because, of 20 course, by this time, as I think Dr. Wood indicated, he - 21 - he had gone on to do some morphometric analysis, which 22 is, as I recall, supported his -- his view. 23 The -- you know, the issue on what may or 24 not be gained from an exhumation in this situation is not 25 one (1) which I -- which I could assist with. I

1 certainly had done exhumations; I knew about approaches 2 and limits to them, but at this point in time, though I 3 understood that Dr. Wood's opinion was very, very 4 certain, I certainly also recognized that one (1) of the 5 things that works well in Ontario is the ability for the 6 Chief Coroner to get an exhumation and second opinion. 7 So I saw -- I saw value in that process, 8 but I also saw the certainty of Dr. Wood's opinion in 9 light of questions that had been raised by others. 10 MR. PETER WARDLE: We had an interchange 11 yesterday, sir, at the beginning of examination, and I 12 asked you some questions about "the chess game" of the 13 Judicial System, do you recall that? 14 DR. CHARLES SMITH: Yes. 15 MR. PETER WARDLE: And this is what you 16 said to me at one (1) point: 17 "Do you recall saying to us that on 18 Monday, that at the beginning you 19 thought your role was to support the 20 Crown?" 21 This is at page 192 of the transcript from 22 yesterday, by the way. 23 "Dr. Smith: Yes, yes, that's certainly 24 in the '90's was the -- was the 25 impression that I had, yes.

1 Q: As -- and as I took down your 2 evidence you said that later on you 3 understood that your role was to be 4 more impartial, that you were poor in 5 executing. 6 A: Yes, I believe that's correct. 7 Q: Do you agree, in retrospect, from 8 some of the admissions you've made this 9 week that you continued throughout to 10 take on that role of supporting the 11 Crown's case? 12 A: Yes, I -- I recognize that I have 13 made that error." 14 DR. CHARLES SMITH: Yes. 15 MR. PETER WARDLE: And you did so in this 16 case, did you not, sir? 17 DR. CHARLES SMITH: No, at -- at this 18 point of the issue of the second -- the -- the exhumation 19 in the second autopsy, I was in no position to support 20 the Crown's case because the issue there was going to be 21 an osteologic issue, of which I had -- 22 MR. PETER WARDLE: Sir, I don't want -- 23 DR. CHARLES SMITH: Yeah. 24 MR. PETER WARDLE: -- to interrupt you, 25 but I'm not asking now about the exhumation.

1 DR. CHARLES SMITH: I'm sorry, that's -- 2 I thought you were referring to this -- to this issue as 3 to -- 4 MR. PETER WARDLE: That's why I 5 interrupted you. 6 DR. CHARLES SMITH: Mm-hm, okay. I -- 7 I've misunderstood -- 8 MR. PETER WARDLE: I'm asking -- 9 DR. CHARLES SMITH: -- your question. 10 MR. PETER WARDLE: And that's fair 11 enough. 12 DR. CHARLES SMITH: If you can -- 13 MR. PETER WARDLE: I'm going to rephrase 14 it. 15 DR. CHARLES SMITH: Thank you. 16 MR. PETER WARDLE: Do you agree now that 17 your role in this case; your definitive opinion at the 18 beginning; your definitive opinion to the police; your 19 definitive opinion after the defence began raising the 20 dog theory, and your definitive evidence at the 21 preliminary inquiry. 22 Do you recognize that this was one of 23 those cases where, as you told us yesterday, you -- you 24 made that error of continuing throughout to take on the 25 role of supporting the Crown's case?

1 DR. CHARLES SMITH: Once the -- once the 2 issue -- I -- I recognize that my testimony in Court was 3 -- was concrete. I -- I don't know how else to express 4 the fact that I recognize that error nor do I know how 5 better I can explain what may have been the basis of that 6 mistake. 7 Certainly, by the time that the 8 preliminary came -- inquiry was over and then the AAFS 9 meeting in -- earlier in 1999 occurred, there is 10 absolutely no way that -- that my actions or my opinion 11 was in any way coloured in support of the Crown. I 12 recognized that there was expertise that others had -- 13 that I did not have that was going to come to bear on 14 this, and I was embarrassed by the fact that I had made 15 such a mistake. 16 I continued to -- to rethink my -- my 17 observations and my conclusions at autopsy in new -- in 18 light of new information; I did that. I believe that my 19 second autopsy report correctly reflects the fact that I 20 did a -- an honest and a serious reconsideration. 21 I -- I have always recognized that there 22 are some things that I saw, such as the thoracic inlet 23 wound, which as you referred to as the one that wasn't 24 measured, that perplexed me, and -- and I recognize that, 25 unfortunately, no one else had the -- had the privilege

1 of seeing it the way that I saw it with my naked eyes. 2 But -- but once the -- the information was 3 presented to me sometime later, I -- I believe, from that 4 point forward, nothing I did could be described as 5 supporting the Crown's position. My opinion was always 6 my opinion. The fact that it allied with the police or 7 the Crown is simply the -- a reflection of the fact that 8 -- that opinion was what it was. 9 I believe the only time that I could be 10 pointed out for having acted in a pro-Crown manner was 11 the mistake that I made with the certainty at the -- of 12 my evidence at the inquiry. But I did not feel like I 13 was in -- an agent of the police or the Crown, apart from 14 that. 15 MR. PETER WARDLE: Sir, if we look in the 16 -- the binders prepared by the parties for your evidence, 17 Volume III, -- 18 DR. CHARLES SMITH: I have that. 19 MR. PETER WARDLE: -- at Tab 35, this is 20 PFP303627. 21 DR. CHARLES SMITH: Yes. 22 MR. PETER WARDLE: This is an interview 23 summary of Dr. Martin Queen which has been filed with the 24 Commission. 25 DR. CHARLES SMITH: Okay.

1 MR. PETER WARDLE: You remember Dr. 2 Queen? 3 DR. CHARLES SMITH: Yes, quite -- 4 reasonably well, yes. Yeah. I admitted him to the 5 Residency program when I was post-graduate Director. He 6 rotated through the Hospital for Sick Children. We saw 7 each other, though I don't believe as a forensic 8 pathologist, we worked with -- with each other. But, no, 9 I certainly -- I certainly knew Martin. 10 MR. PETER WARDLE: If you'll turn to 11 page 6, you'll see that Dr. Queen recalls being on call 12 the weekend of Sharon's autopsy. 13 DR. CHARLES SMITH: Okay. I see this. 14 MR. PETER WARDLE: It says: 15 "Dr. Queen was in the autopsy room 16 conducting his own post-mortem 17 examination at the time that Dr. Smith 18 performed the autopsy." 19 Do you see that? 20 DR. CHARLES SMITH: I see that, yes. 21 MR. PETER WARDLE: 22 "He remembers some talk about scissors 23 and dog bites." 24 DR. CHARLES SMITH: I see that, yes. 25 MR. PETER WARDLE:

1 "He has no specific memory of looking 2 at the body or discussing the wounds. 3 His opinions were neither sought, nor 4 offered." 5 Does that refresh your memory as to 6 whether Dr. Queen was in the building when Sharon's 7 autopsy was being done? 8 DR. CHARLES SMITH: No. I -- I don't 9 remember him -- this is not to say he wasn't there. The 10 -- the room where Sharon's body's autopsy was done was 11 sort of sequestered from -- from the rest of the area, so 12 there could be other things going on outside of that and 13 I may or may not know about them. 14 So this is -- this -- this information, I 15 don't have any recollection of whatsoever. 16 MR. PETER WARDLE: If you look at the 17 next sentence, it says: 18 "Dr. Queen did recall that during the 19 autopsy, the police made denigrating 20 comments about the mother, i.e., that 21 she hung out with bikers." 22 Do you recall the police making 23 denigrating comments to you about Sharon's mother during 24 the autopsy, sir? 25 DR. CHARLES SMITH: I don't have specific

1 recollection of that, no. 2 MR. PETER WARDLE: Is it possible they 3 did? 4 DR. CHARLES SMITH: It -- it's quite 5 possible. 6 MR. PETER WARDLE: And is it possible 7 that if they did, sir, as we've heard in so many of these 8 cases, that they -- that those comments may have played 9 some part in your thinking about this case? 10 DR. CHARLES SMITH: No. No. No. No, I 11 resist that. 12 MR. PETER WARDLE: Well, I know you 13 resist that, sir, but is it possible -- 14 DR. CHARLES SMITH: No. 15 MR. PETER WARDLE: -- that that's what 16 took place? 17 DR. CHARLES SMITH: No. No. Mr. Wardle, 18 I've -- I've made it very clear, in -- within the 19 confines of this room, that there have been numerous 20 occasions when the science of my work has disproven any 21 statement that was made to be -- to me about 22 socioeconomic or cultural factors. 23 And if I may take -- you know, may take 24 pride in that -- I do take pride in the fact that -- that 25 there were many instances when -- when science disproved

1 a statement that may or may not have been true that had 2 nothing to do with science. 3 So -- 4 MR. PETER WARDLE: Well, let's -- lets 5 look at -- 6 DR. CHARLES SMITH: -- that statement is, 7 you know, may be of significance to others, but that 8 statement does not -- does not affect -- did not affect 9 my interpretation of the wounds on her body. 10 MR. PETER WARDLE: Let's look at one (1) 11 more document, sir, if we may in the same binder. Volume 12 III, Tab 34, PFP114508. 13 DR. CHARLES SMITH: Yes. 14 MR. PETER WARDLE: This is a summary from 15 the Death Under Two Committee that you were a participant 16 in. 17 DR. CHARLES SMITH: Yes. 18 MR. PETER WARDLE: And these are your 19 notes, sir? 20 DR. CHARLES SMITH: It looks like my -- 21 my writing, yes. 22 MR. PETER WARDLE: And you'll see there's 23 an infant listed there, and I'm just going to use 24 initials for the last name, the second one (1) from the 25 top.

1 The last name starts with R, do you see 2 that? 3 DR. CHARLES SMITH: I see that, yes. Mm- 4 hm. 5 MR. PETER WARDLE: And there's a 6 description in the typewritten portion about: 7 "This 18 month old male was brought to 8 hospital VSA at 11:30 a.m. The mother 9 had last seen the child alive at 10 approximately 3:00 a.m. when she moved 11 him from one (1) crib to another that 12 was close to her bed. When she awoke 13 at approximately 11:00 a.m., the baby 14 was dead in the crib." 15 DR. CHARLES SMITH: Yes. 16 MR. PETER WARDLE: Have I read that 17 correctly? 18 DR. CHARLES SMITH: That's correct. 19 MR. PETER WARDLE: And then you've 20 written, sir, above that: 21 "Mum was shooting pool." 22 DR. CHARLES SMITH: I see that writing, 23 yes. 24 MR. PETER WARDLE: What -- what was the 25 relevance of the fact that the mum was shooting pool, Dr.

1 Smith? 2 DR. CHARLES SMITH: Because that would 3 suggest to me that a parent -- that parent, at least, was 4 not in the home when -- when the child was -- was there. 5 So for me, that would point to issues of 6 understanding of, if the autopsy had to point to 7 injuries, then that would be significant because it would 8 mean that one (1) person was not there. 9 Whether she was shooting pool or doing 10 anything else, I can't tell you what the activity was but 11 that would be the way that I would note, for myself, that 12 something was happening such that a parent may not be in 13 the home. 14 MR. PETER WARDLE: But you didn't write 15 down parent not in home, you wrote "Mum was shooting 16 pool." 17 DR. CHARLES SMITH: As obviously as that 18 history had been presented to the -- to the Committee to 19 indicate the absence, as you saw in my notes on the Jenna 20 case, you know, I -- I simply noted the information that 21 was given without -- without writing down the 22 interpretation of it, it -- it is a fact, it was given. 23 My interpretation was that this brings 24 into question who may or may not have been in the home. 25 It's -- the issue for me is not the activity. The issue

1 for me is the nature of who the caregiver was; what the 2 nature of the care was during the period of time that a 3 child died -- child may have died. 4 MR. PETER WARDLE: Can we go back, sir, 5 for -- just before I close, to the O'Hara interview for 6 one minute, please, and that's in the Commissioner 7 binders at Volume I, Tab 14, and again it's PFP303004. 8 DR. CHARLES SMITH: Yes. 9 MR. PETER WARDLE: You took your fourteen 10 (14) year old daughter to the -- to your evidence in the 11 preliminary inquiry in the Reynolds case, did you not, 12 sir? 13 DR. CHARLES SMITH: Yes. 14 MR. PETER WARDLE: Did you think maybe 15 there was something inappropriate in having her there? 16 DR. CHARLES SMITH: No, sir. She was a 17 senior student in -- in high school. She was doing a law 18 class. They had to attend Court as part of her grade 11 19 or grade 12 law class, and so that was -- that was 20 something that was required. 21 What was special about this was that in -- 22 in Kingston, at that time, there was a judge -- Baker, I 23 believe was his name -- who was, at that point, the judge 24 who had been sitting on the bench longer than anyone else 25 in Ontario. He, in fact, as I understand, was one of the

1 people who had authored the -- or had -- had played a 2 role in the Young Offenders Act, and I knew that the 3 evening before because in -- I was in Kingston two (2) 4 days and so that was part of late evening conversation -- 5 and so I indicated to my daughter that if she wanted to 6 accompany me as her school obligation, this may be 7 valuable, because if she sat with me at lunchtime, she 8 may get a chance to -- to meet this judge. 9 MR. PETER WARDLE: Well, let's look at 10 what you have to say about -- 11 DR. CHARLES SMITH: It -- it -- 12 MR. PETER WARDLE: -- this in -- to Jane 13 O'Hara, sir. 14 DR. CHARLES SMITH: Yes. 15 MR. PETER WARDLE: At page 22, -- 16 DR. CHARLES SMITH: Yes. 17 MR. PETER WARDLE: -- you'll see about a 18 third of the way down the page: 19 "My daughter, who sat in Court for part 20 of this time I was -- that I was 21 testifying, could see this woman was 22 incredibly, incredibly upset and she 23 said, Something is really wrong here." 24 And she's reacting at certain times when you're 25 testifying this, that and the other. Do you see that?

1 DR. CHARLES SMITH: Yes. Mm-hm. 2 MR. PETER WARDLE: Did it occur to you at 3 the time, Dr. Smith, that maybe she was reacting that way 4 because she was innocent? 5 DR. CHARLES SMITH: I always recognized 6 that she could have been innocent. The -- the 7 determination of who was responsible for Sharon's death 8 was not mine. The issue of who was in the home and who 9 was not in the home was not mine. I don't believe I 10 played any -- any role in the decision-making as to who 11 the police would charge. 12 MR. PETER WARDLE: You don't believe you 13 were pivotal in that case, sir? You don't believe you 14 were the pivotal witness for the Crown in that 15 prosecution? 16 DR. CHARLES SMITH: I believe I was the 17 pivotal witness for the Crown in the preliminary hearing 18 but the issue as to the guilt or innocence of anyone is 19 not my role. I never saw it my role in this case to 20 this -- 21 MR. PETER WARDLE: An answer, when you 22 say at the bottom of the previous -- 23 DR. CHARLES SMITH: Mm-hm. 24 MR. PETER WARDLE: -- page, -- 25 DR. CHARLES SMITH: I'm sorry, at the

1 bottom of page...? 2 MR. PETER WARDLE: Twenty-one (21). 3 DR. CHARLES SMITH: Yes. Mm-hm. 4 MR. PETER WARDLE: That you turned to two 5 (2) other judges and pleaded with them to do something so 6 that Ms. Reynolds was properly represented. 7 DR. CHARLES SMITH: Mm-hm. 8 MR. PETER WARDLE: -- and you spoke to 9 prominent senior members of the defence community in the 10 Kingston area and said there was nothing you, as defence 11 lawyers, can do to help this poor woman. 12 DR. CHARLES SMITH: Yes. 13 MR. PETER WARDLE: Isn't that just 14 another fabrication, sir, just like the comments about 15 Justice Dunn on the airplane? 16 DR. CHARLES SMITH: No, that's not true. 17 That is absolutely not true. One (1) of these judges 18 introduced himself to me -- not judges, I'm sorry; one 19 (1) of these attorneys did, and -- and I expressed to him 20 my concern about what I had seen in Court. 21 And please understand, Mr. Wardle, I 22 realize that was totally inappropriate for me to do, but 23 -- but it was done on the spur of the moment out of a 24 sense of -- of concern or compassion. 25 I recognize that was an error, but I did

1 it because I believed that was something that I could do 2 perhaps, to help in a situation that I thought was a 3 difficult situation. 4 I recognize it's an error. It seems 5 arrogant for me to -- to do that, but trying to be 6 helpful is -- is one (1) of the things that -- that 7 characterizes me. 8 MR. PETER WARDLE: That's what you were 9 doing in that case, was it -- 10 DR. CHARLES SMITH: I was try -- 11 MR. PETER WARDLE: -- trying to be 12 helpful? 13 DR. CHARLES SMITH: I was -- by -- by 14 bringing that up with -- with a senior member of the 15 Criminal Defence Bar from Kingston, I was trying to be 16 sure that what went on in Court was the best thing. 17 And I -- and I -- I confess my ignorance. 18 I confess my arrogance; of thinking that I could have 19 done something to make it better, but that reflects the - 20 - the honesty of my heart. 21 MR. PETER WARDLE: Mr. Commissioner, I'm 22 finished. Thank you, sir. 23 COMMISSIONER STEPHEN GOUDGE: I think you 24 are. Mr. Manishen...? 25

1 CROSS-EXAMINATION BY MR. JEFFERY MANISHEN: 2 MR. JEFFERY MANISHEN: Dr. Smith, I'm 3 here on behalf of the Ontario Criminal Lawyers' 4 Association, and my focus will not be so much on 5 individual cases and diagnosis, as issues that we can 6 learn from to help on the -- on the systemic basis. 7 So my focus of your involvement will be to 8 use you kind of as a starting point to see what we can 9 learn from, if you're willing to help me on that. 10 DR. CHARLES SMITH: I -- that's why I'm 11 here. 12 MR. JEFFERY MANISHEN: All right. Number 13 1, as I understand your evidence in terms of who it was 14 that supervised you or that could tell you what to do 15 during your years with the Pediatric Forensic Pathology 16 Unit, it was Dr. Cairns? 17 DR. CHARLES SMITH: Well, my -- my 18 supervision was really at three (3) levels. It was my 19 Chief in Pathology, it was, sort of, at a professional 20 pathology level. It -- it would have been the Chief 21 Forensic Pathologist when there was one (1), and then at 22 an administrative level, essentially, it was -- it -- I 23 mean, it was to Dr. Young, but effectively, it was -- it 24 was Dr. Cairns, not Dr. Young, in that regard. 25 MR. JEFFERY MANISHEN: All right. And

1 from the standpoint of what you could do to learn more 2 about the forensic aspects of pathology, because you 3 indicated to us -- 4 DR. CHARLES SMITH: Mm-hm. 5 MR. JEFFERY MANISHEN: -- I think that it 6 never really occurred to you to do some forensic 7 training, you still had available to you some research 8 materials in the area of forensic pathology? 9 DR. CHARLES SMITH: There -- yeah, there 10 were, you know, reference texts and -- and that sort of 11 thing, yes. 12 MR. JEFFERY MANISHEN: There were, for 13 example, reference texts in the Office of the Chief 14 Coroner that you had access to? 15 DR. CHARLES SMITH: Yes. 16 MR. JEFFERY MANISHEN: All right. 17 DR. CHARLES SMITH: And I used them from 18 time-to-time, yes. 19 MR. JEFFERY MANISHEN: All right. The 20 reason I asked, there was one (1) that was called 21 Adelson's Pathology of Homicide. That's a 1974 text 22 Professor Milroy wrote and talked about. 23 DR. CHARLES SMITH: Mm-hm. 24 MR. JEFFERY MANISHEN: Did you ever read 25 that one (1) or review it?

1 DR. CHARLES SMITH: I -- I can't remember 2 that I did. 3 MR. JEFFERY MANISHEN: All right. 4 DR. CHARLES SMITH: It's at -- certainly 5 in the 1970s, it was not the text that I first used to 6 learn about the area. I used a different one (1). 7 MR. JEFFERY MANISHEN: The reason it 8 helped or could help, he told us it had a phrase used, 9 "the obsolete quintet", with respect to some signs -- 10 DR. CHARLES SMITH: Mm-hm. 11 MR. JEFFERY MANISHEN: -- of asphyxia 12 that could be misleading, things like petechial 13 intrathoracic hemorrhage. He told us about the obsolete 14 quintette. 15 Did you ever read that phrase anywhere? 16 DR. CHARLES SMITH: No, I -- I didn't; I 17 learn -- learned it through the Inquiry here. 18 MR. JEFFERY MANISHEN: All right. 19 DR. CHARLES SMITH: Yes. 20 MR. JEFFERY MANISHEN: Another text was 21 the text by Professor Knight that subsequently was co- 22 authored with Professor Saukko, one (1) of the reviewers. 23 24 Was that a text that you used? 25 DR. CHARLES SMITH: At -- at some point I

1 believe I -- I read some chapters or some parts of -- of 2 the Knight text but whether -- which edition it was, I 3 couldn't tell you and now, I couldn't even tell you which 4 chapters I read. 5 MR. JEFFERY MANISHEN: Sir, there are 6 journals as well in forensic pathology. I may be wrong 7 in the title, but is one of them Journal of American 8 Forensic Pathology? 9 DR. CHARLES SMITH: No. No. The -- the 10 -- the two (2) major journals in the United States would 11 be the Journal of Forensic Sciences, which is published 12 by the American Academy of Forensic Sciences, so that 13 includes everything from documents to DNA. It's 14 everything in forensic sciences. 15 The National Association of Medical 16 Examiners publishes a journal which is much more narrowed 17 in its focus, called the American Journal of Forensic 18 Medicine and Pathology -- MJ Foren -- yeah, American 19 Journal of Foren -- the -- it's called The Orange Journal 20 because its cover is orange. 21 MR. JEFFERY MANISHEN: And that's one 22 that you received and reviewed? 23 DR. CHARLES SMITH: No, I didn't -- I 24 didn't receive it because I was not a member of the 25 National Association of Medical Examiners, so I -- so, in

1 fact, I didn't receive it. 2 I -- I certainly went through the issues 3 and chose the articles that were of interest to me and if 4 you see my CV, you'll see that I have more publications 5 in that journal than any other journal. 6 MR. JEFFERY MANISHEN: So it was 7 available to you? 8 DR. CHARLES SMITH: Yes. Yes. 9 MR. JEFFERY MANISHEN: All right. 10 DR. CHARLES SMITH: Mm-hm. 11 MR. JEFFERY MANISHEN: From the 12 standpoint of your understanding of your role in the 13 Criminal Justice System, you indicated to Ms. Rothstein 14 that you had a growing understanding of your role, if I 15 heard your evidence right? 16 DR. CHARLES SMITH: Yes. Yeah. 17 MR. JEFFERY MANISHEN: All right. From 18 the standpoint of the base level understanding though, 19 even as of 1988, -- 20 DR. CHARLES SMITH: Mm-hm. 21 MR. JEFFERY MANISHEN: -- when you were 22 involved in the Amber case, -- 23 DR. CHARLES SMITH: Yes. 24 MR. JEFFERY MANISHEN: -- you were aware 25 that there was a trial which involved a determination of

1 guilt or innocence? 2 DR. CHARLES SMITH: Yes. Yes. 3 MR. JEFFERY MANISHEN: And you were -- 4 you were aware, in the Criminal Justice System, people 5 can go to jail, sometimes for life, if found guilty of 6 serious criminal offences? 7 DR. CHARLES SMITH: Yes. 8 MR. JEFFERY MANISHEN: And you were aware 9 of your role as a witness with respect to the issues that 10 arise from an autopsy that you've been involved in? 11 DR. CHARLES SMITH: Yeah, I think I 12 understood my role. 13 MR. JEFFERY MANISHEN: Sure. And you 14 were aware that part of your role is to give an opinion 15 on cause of death? 16 DR. CHARLES SMITH: Yes. 17 MR. JEFFERY MANISHEN: And part of your 18 role is to exclude alternative causes such as a fall down 19 the stairs? 20 DR. CHARLES SMITH: I think that that 21 would be part of the -- sort of the question and answer 22 that would go on, that the -- 23 MR. JEFFERY MANISHEN: A part of the 24 question and answer of you as an expert that you would be 25 asked --

1 DR. CHARLES SMITH: Yeah. 2 MR. JEFFERY MANISHEN: -- to give an 3 opinion on? 4 DR. CHARLES SMITH: Yes. Yeah. Yeah. 5 MR. JEFFERY MANISHEN: So part of your 6 role? 7 DR. CHARLES SMITH: So this is, you know, 8 I would present my -- as I understood it, my role was to 9 present the autopsy and -- and give an interpretation of 10 it in light of the findings and the literature; the 11 science. The -- I'm not sure that I recognized my role 12 was necessary to say, This is my diagnosis but here are 13 fourteen (14) others I've considered. 14 So, but -- but certainly I recognize that 15 -- that it was my responsibility to be able to address 16 questions that might bring up those -- those others. 17 So I -- I'm not trying to argue with you 18 here. I'm trying to, sort of, say I believe my -- it was 19 my understanding that my role was to give my opinion but 20 to be prepared to indicate whether I had considered other 21 opinions and if I had been, what was the basis that I 22 accepted or rejected them. 23 MR. JEFFERY MANISHEN: Sure. And in that 24 particular case, for example, give an opinion that the 25 cause of death was not as a result of a short fall.

1 DR. CHARLES SMITH: That's -- that's an 2 interpretation of the cause of death as opposed to the 3 opinion of the cause -- the -- the death was head injury, 4 the interpretation is, How did it occur. 5 MR. JEFFERY MANISHEN: And you were asked 6 to give your evidence and your opinion on that. 7 DR. CHARLES SMITH: Yes. 8 MR. JEFFERY MANISHEN: And you 9 understood, did you not, that that was an important part 10 of the trial process, did you? 11 DR. CHARLES SMITH: It's very important, 12 yeah. 13 MR. JEFFERY MANISHEN: Sure. 14 DR. CHARLES SMITH: I think all of the 15 medical people understood that was the central issue at 16 the trial. 17 MR. JEFFERY MANISHEN: Sure. And over 18 the next several years that you testified, giving 19 opinions on cause of death, giving opinions on whether 20 they were non-accidental, giving opinions to exclude 21 other causes, you understood you had an important part to 22 play in the trial? 23 DR. CHARLES SMITH: Yes. 24 MR. JEFFERY MANISHEN: All right. And 25 with respect to aspects that affected your opinion, in

1 part, and you've mentioned that the history that you were 2 given was something that you considered? 3 DR. CHARLES SMITH: Yes. 4 MR. JEFFERY MANISHEN: And I suppose the 5 history is dependent on getting it accurately from the 6 history-taker, the police? 7 DR. CHARLES SMITH: Well, often it was 8 the -- the coroner, not necessarily the police, no. 9 MR. JEFFERY MANISHEN: So you'd be 10 getting information that would have come effectively 11 secondhand; the police tell the coroner, the coroner 12 tells you? 13 DR. CHARLES SMITH: Well, it's -- it's, 14 yeah, it's second -- it's secondhand. It -- I -- I'm not 15 trying to argue with -- with you here. I just want to be 16 clear that usually in -- in most instances the -- my 17 first run of information would be from the coroner 18 because that would be my contact on the case. The 19 coroner would give me information. 20 Now whether the coroner -- how the coroner 21 got it, whether it was by himself or herself, or whether 22 -- because the Coroners' Act allows the police to be used 23 as a coroner's investigator, how that's done, I -- you 24 know, that is something that I can't comment on -- 25 MR. JEFFERY MANISHEN: Sure.

1 DR. CHARLES SMITH: -- but -- but 2 whatever -- whatever happened, at some point I would have 3 information that, in cases that went to trial, would 4 usually be from a combination of Coronial and police 5 sources. 6 MR. JEFFERY MANISHEN: But the point I'm 7 getting at -- 8 DR. CHARLES SMITH: Mm-hm. 9 MR. JEFFERY MANISHEN: -- is the history 10 you're given might come from secondhand information. 11 DR. CHARLES SMITH: Oh, I recognize that, 12 yes. 13 MR. JEFFERY MANISHEN: And the -- and the 14 accuracy of your opinion, to the extent it relies on 15 history, depends on getting accurate information. 16 DR. CHARLES SMITH: Absolutely. 17 MR. JEFFERY MANISHEN: And so one (1) way 18 then -- 19 DR. CHARLES SMITH: And -- and the 20 completeness. It's not only the accuracy, it's also the 21 completeness. 22 MR. JEFFERY MANISHEN: Sure, and what it 23 shows us, in a way, is the danger of relying upon history 24 in forming an opinion, because it, unlike what you can 25 see, might not be given to you accurately.

1 DR. CHARLES SMITH: That's correct. 2 MR. JEFFERY MANISHEN: So with respect to 3 one (1) suggestion that we might come up with, if we 4 wanted to get a true picture of what happened in the 5 formation of opinion, get accurate notes of history 6 given, correct? 7 DR. CHARLES SMITH: Yes. Yes. 8 MR. JEFFERY MANISHEN: And I suppose too, 9 with respect to an issue of preliminary views by you as a 10 pathologist, realizing you endeavour to advise police 11 it's just a preliminary -- 12 DR. CHARLES SMITH: Mm-hm. 13 MR. JEFFERY MANISHEN: -- a good way to 14 be able to ensure we know what it was you advised them at 15 an early stage, would be to have accurate notes of that. 16 DR. CHARLES SMITH: To have -- it would 17 be very helpful, yes, I recognize that. Yes. 18 MR. JEFFERY MANISHEN: Sure. 19 DR. CHARLES SMITH: I've -- I've always 20 felt that -- that it would be not only sort of protective 21 for the pathologists, but also for the police to walk 22 away with something that even simply was spelled right. 23 MR. JEFFERY MANISHEN: Sure. And in fact 24 further, I suppose, we could say it might be advisable 25 for a pathologist forming a medicolegal opinion to

1 identify clearly what part of the history is relied upon 2 as distinct from what part of observation in the course 3 of the autopsy. 4 DR. CHARLES SMITH: Now -- yeah. Now 5 you're talking about something which is really more of 6 the domain of expertise or practice patterns of forensic 7 pathology, so -- 8 MR. JEFFERY MANISHEN: Okay. 9 DR. CHARLES SMITH: -- so I will -- I 10 agree with the question, but -- but I -- I want to be 11 careful here, because I've never been trained in that 12 manner, and, so I -- I can't -- I can't work through the 13 subtleties of those problems with you. 14 MR. JEFFERY MANISHEN: Oh, we're trying 15 to come away with what would be a good practice to 16 follow. So we're going -- I'm looking -- 17 DR. CHARLES SMITH: Yeah. 18 MR. JEFFERY MANISHEN: -- for your 19 assistance on that. You'd agree with me that to be -- 20 for a pathologist to identify what part relates to 21 history and the opinion, what part of based on autopsy, 22 would be useful. 23 DR. CHARLES SMITH: Yes, I -- I think 24 it's very important -- 25 MR. JEFFERY MANISHEN: Okay.

1 DR. CHARLES SMITH: -- for the 2 pathologist's report, and the interpretation to stand on 3 its own. And if that -- if -- if that process of the 4 report standing on its own requires the restating, and 5 the consideration of the -- or the distillation of 6 information, then I would say in principle, yes, that 7 would be a good practice. 8 MR. JEFFERY MANISHEN: Here's another one 9 (1). We could see clearly in your history with respect 10 to a variety of cases, there was a real problem for you 11 as an individual with respect to the timeliness of the 12 completion of your post-mortem reports and your 13 consultation notes. 14 We see that as a pattern, correct? 15 DR. CHARLES SMITH: I -- I recognize 16 that, yes. 17 MR. JEFFERY MANISHEN: And you've 18 indicated that your explanation for it, and correct me if 19 I'm wrong -- 20 DR. CHARLES SMITH: Mm-hm. 21 MR. JEFFERY MANISHEN: -- have to do with 22 the habit, or a personality set for you of procat -- 23 procrastinating and being disorganized. 24 DR. CHARLES SMITH: Yes. 25 MR. JEFFERY MANISHEN: All right. You

1 could appreciate, I suppose, that the system -- the 2 Criminal Justice System was waiting for your report. 3 You're appreciative of that? 4 DR. CHARLES SMITH: I see that, yes. 5 MR. JEFFERY MANISHEN: And in fact, you 6 saw it at the time, didn't you? 7 DR. CHARLES SMITH: There -- there were 8 occasions when that was brought home to me very clearly. 9 MR. JEFFERY MANISHEN: Many occasions. 10 DR. CHARLES SMITH: Well, I don't know 11 how many, but I think we've looked at enough here that 12 I'm -- that I am ashamed of them. 13 MR. JEFFERY MANISHEN: I -- I appreciate 14 that. In fact, actually on one (1) occasion, I think in 15 Taylor's case, the defence actually had to get a Court 16 Order to require you to submit a consultation report, 17 remember? 18 DR. CHARLES SMITH: I -- I don't have a 19 memory of that, but I don't think we need to necessarily 20 go through that. Yes. 21 MR. JEFFERY MANISHEN: Well, but -- 22 DR. CHARLES SMITH: But if you -- yeah. 23 MR. JEFFERY MANISHEN: We're going to try 24 and learn from -- 25 DR. CHARLES SMITH: Yeah. Mm-hm.

1 MR. JEFFERY MANISHEN: So now if we've 2 got a supervisor -- 3 DR. CHARLES SMITH: Mm-hm. 4 MR. JEFFERY MANISHEN: -- like Dr. Young, 5 or Dr. Cairns, or Dr. Chiasson, would they be people who 6 could make a procrastinating pathologist finish a report 7 in a timely way? 8 DR. CHARLES SMITH: I -- I think that 9 that brings up the -- sort of the broader issue as to 10 really the -- you know, sort of a -- an information 11 tracking things system so that -- so that -- so that 12 every -- you know, reasonable standards can be 13 established and then monitored. 14 MR. JEFFERY MANISHEN: Right. That's a 15 good help. 16 DR. CHARLES SMITH: Yeah. 17 MR. JEFFERY MANISHEN: And monitoring 18 might well have, let's use the phrase colloquially 19 "cracked the whip" on you to make sure you got your 20 reports done on time. 21 DR. CHARLES SMITH: Yes, it could be used 22 for anyone, and I recognize that -- that I am part of 23 that. 24 MR. JEFFERY MANISHEN: And if we had, 25 effectively, a well known chain of command; if defence

1 counsel were writing for information, trying to get 2 slides, trying to get reports, and they weren't getting 3 them from the pathologist -- 4 DR. CHARLES SMITH: Mm-hm. 5 MR. JEFFERY MANISHEN: -- it would help 6 to know who they could write to that would have the 7 authority to push the issue. That would help, wouldn't 8 it? 9 DR. CHARLES SMITH: That's your 10 suggestion. I -- I can understand and agree with that, 11 but -- 12 MR. JEFFERY MANISHEN: All right. 13 DR. CHARLES SMITH: -- but please, sir, I 14 -- I don't want to be seen to be making recommendations, 15 because I think I'm too close to the problems. 16 MR. JEFFERY MANISHEN: The -- these 17 aren't recommendations, but your very closeness gives us 18 insight. 19 DR. CHARLES SMITH: All right. 20 MR. JEFFERY MANISHEN: So, for example, 21 if you understood the importance of impartiality -- you 22 had even written a paper on it -- objectivity as a 23 witness, and yet you frequently fell into the pattern of 24 poor execution -- 25 DR. CHARLES SMITH: Mm-hm.

1 MR. JEFFERY MANISHEN: -- by being 2 dogmatic and argumentative. 3 DR. CHARLES SMITH: Mm-hm. 4 MR. JEFFERY MANISHEN: Why did you do 5 that if you knew better? 6 DR. CHARLES SMITH: Well, I -- and I've - 7 - and I've searched, you know, searched my memory banks 8 or my soul trying to understand that and I -- and I don't 9 want to be seen to be giving excuses because I recognize 10 that I've made that mistake, and just as I've had 11 wandering answers in Court, I think everyone in this room 12 has also been subject to wandering answers that I've 13 given this week, so part of that is me. 14 I think part of it is the reality that, 15 you know, even back in school, when you stand up to give 16 a public speech in front of your classmates and it's a 17 very, you know, nervous stressful thing for a student to 18 do. You know, when I -- when I sat down as a student, 19 you know, I would have told you I thought I did a great 20 job, and I'm sure that you could have asked classmates 21 who would have said, No, you know, you did a terrible 22 job. 23 And I think the lack of objectivity that a 24 physician has in a -- in a very foreign environment -- 25 that is very stressful.

1 And I think it is difficult to -- to think 2 through the issues, to answer the questions, and to 3 execute, and to -- and to be able to be sufficiently 4 remote that you can see your own execution. 5 And this is why -- I mean, I've touched on 6 this -- this issue with the Commissioner about -- about 7 the value of having someone watch you and -- and -- you 8 know, and then -- and then talk about what you did right 9 and wrong. 10 MR. JEFFERY MANISHEN: Did you get 11 transcripts of your evidence at the preliminary inquiry 12 when you testified? Did the Crown send you copies? 13 DR. CHARLES SMITH: Once in a while. 14 MR. JEFFERY MANISHEN: All right. 15 DR. CHARLES SMITH: Sometimes it would 16 happen; sometimes not. 17 MR. JEFFERY MANISHEN: You never went 18 over with anybody how your evidence was? 19 DR. CHARLES SMITH: No, no. 20 MR. JEFFERY MANISHEN: All right. 21 DR. CHARLES SMITH: I would be given a -- 22 you know, a transcript, and then before going to a trial 23 I would, you know, would make sure I read it; if not 24 weeks before, the night before. 25 MR. JEFFERY MANISHEN: And what can

1 happen, too, I would suppose, is if you're testifying 2 regularly for the Crown; regularly working with the 3 police dealing with emotionally charged issues; working 4 with the SCAN Team that, to some extent, has an advocacy 5 type role in issues of abuse, there is a potential risk 6 of some emotional attachment with the case, isn't there? 7 I think you've alluded to it earlier. 8 DR. CHARLES SMITH: There -- yeah, the -- 9 every -- every one (1) of these cases, and -- and it's 10 not just coroner's cases, they -- you know, there's a 11 certain emotional reaction to a tragic death of a -- of a 12 young person. 13 The -- I -- I think that -- I think that 14 the issue of emotion had long sin -- would -- would have, 15 at least in my experience, long since disappeared by the 16 time the autopsy report, you know, was -- was authored 17 and Court went on. 18 MR. JEFFERY MANISHEN: But, of course, in 19 testifying in Court, we know the times when you were 20 dogmatic -- 21 DR. CHARLES SMITH: Mm-hm. 22 MR. JEFFERY MANISHEN: -- adversarial -- 23 DR. CHARLES SMITH: Yeah. 24 MR. JEFFERY MANISHEN: -- it was, 25 effectively, in support of the Crown's case when you were

1 doing it. It had the effect, didn't it? 2 DR. CHARLES SMITH: Well, there were -- 3 you know, I can think of times when I probably was -- was 4 equally dogmatic and -- and helpful for the defence, 5 though the very nature of working in Ontario is that -- 6 is that in the vast majority of instances I'd be called 7 to Court by the Crown because that's -- my information is 8 the basis of charges as -- so, you know -- 9 MR. JEFFERY MANISHEN: Exactly. 10 DR. CHARLES SMITH: -- if I -- you know 11 if -- if I didn't -- if my opinion didn't support the 12 Crown, they wouldn't have me there, hence, I wouldn't be 13 in Court. 14 MR. JEFFERY MANISHEN: And you've 15 testified a couple of times to a number of times, this as 16 a defence witness? 17 DR. CHARLES SMITH: I have, yes. 18 MR. JEFFERY MANISHEN: Did you find that 19 experience benefited you in developing a better degree of 20 objectivity? 21 DR. CHARLES SMITH: I certainly found it 22 to be -- to be enlightening or illustrative or 23 educational; whether -- whether I became more objective 24 or not is something that I don't think I can answer, 25 but --

1 MR. JEFFERY MANISHEN: All right. 2 DR. CHARLES SMITH: -- but I -- I did 3 value that. 4 MR. JEFFERY MANISHEN: Now, we know, and 5 I think you've acknowledged it already, that you, 6 actually, when you testified spoke, I think you used the 7 phrase "uncharitably of defence experts", correct? 8 DR. CHARLES SMITH: I -- I have unspoke - 9 - I have spoken uncharitably about -- about some. 10 MR. JEFFERY MANISHEN: Sir, and you can 11 appreciate that that kind of comment might prompt the 12 potential defence experts to be reluctant to come the 13 Court. 14 You can appreciate that? 15 People might not want to go to Court when 16 they know the expert on the other side has disparaged 17 them harshly. 18 DR. CHARLES SMITH: I -- I see what 19 you're saying. I don't think that thought had ever 20 crossed my mind, that represents -- 21 MR. JEFFERY MANISHEN: Well -- 22 DR. CHARLES SMITH: -- perhaps my 23 ignorance or my lack of understanding. 24 MR. JEFFERY MANISHEN: Well, you say 25 ignorance or lack of understanding. As a matter of

1 professional courtesy, you know it really isn't 2 appropriate to disparage colleagues, right? 3 DR. CHARLES SMITH: No. No, I -- 4 MR. JEFFERY MANISHEN: And -- and you've 5 apologized for that. You've expressed that it's an 6 embarrassment. You've expressed your regret. You've 7 taken responsibility. 8 DR. CHARLES SMITH: Mm-hm. 9 MR. JEFFERY MANISHEN: But all that being 10 said, why do it? 11 DR. CHARLES SMITH: Well, I -- I think 12 part of the problem is -- and -- and I shouldn't say a 13 part of the problem, it, not infrequently in the process, 14 usually the Crown, but -- but in fact, when I've acted 15 for the defence, they've done the same thing. They will 16 -- they will essentially say, Help me understand Dr. so 17 and so, you know, and -- and it's -- it's seeking 18 information that can give insight into the strengths or 19 weaknesses of a view that may be proffered by the -- the 20 op -- opposing party, if I can do that. So -- so, I 21 mean, many times that -- that occurred. 22 I was asked, you know -- it would be a 23 telephone call or something -- you know, Who is Dr. so 24 and so, have you ever heard of the person, you know, what 25 -- what do they do, or do you know their research, those

1 kind of things. 2 So that kind of information requests were 3 -- were not infrequent. And I -- and I would think that 4 in virtually every case that I was involved in where 5 there was an opposing expert who was giving an opinion, I 6 would have been asked for information on that person. 7 MR. JEFFERY MANISHEN: Sure, but then on 8 the witness stand, I'm going to -- 9 DR. CHARLES SMITH: Mm-hm. 10 MR. JEFFERY MANISHEN: -- suggest to you 11 that your comments did reflect a measure of arrogance, 12 didn't they? 13 DR. CHARLES SMITH: I -- I confess -- 14 MR. JEFFERY MANISHEN: Sure, and that's a 15 risk with respect to an expert; an arrogant expert isn't 16 as useful as a witness who can maintain objectivity. 17 DR. CHARLES SMITH: You're right. 18 MR. JEFFERY MANISHEN: And if we talk 19 about the review of transcripts, you told, I think, us 20 earlier that Dr. Young met with you about the Fifth 21 Estate and that there was the coverage there of one (1) 22 of the cases -- I think Nicholas -- and you said, Oh, I 23 minimized. I reacted to the criticism and I wanted to 24 make it go away; not dissect through, try to fend off the 25 criticism; that's what you did there.

1 How would a review of your transcripts 2 have helped you if your approach was to minimize 3 criticism? 4 DR. CHARLES SMITH: Well, there weren't 5 any transcripts in Nicholas, no. 6 MR. JEFFERY MANISHEN: No, but in other 7 cases you say it could have helped you if you had had 8 transcripts to go over with somebody. 9 DR. CHARLES SMITH: Yes -- yes. 10 MR. JEFFERY MANISHEN: If you reacted 11 that way, how would it help you? 12 DR. CHARLES SMITH: Well, there I'm being 13 defensive, you know, and -- and sensitive. This is -- 14 this is where someone who understands transcripts and 15 understands the process could be -- could be invaluable 16 to even in -- in the Jenna case, say, you know, Can't -- 17 can't you put a sentence together that gives time frames 18 without wandering, so -- 19 MR. JEFFERY MANISHEN: Or -- or perhaps -- 20 DR. CHARLES SMITH: Yeah. 21 MR. JEFFERY MANISHEN: -- if I might, so 22 you don't wander, and I'll complete it with this, Mr. 23 Commissioner. Really, you'd also need an expert who was 24 willing to not be defensive -- 25 DR. CHARLES SMITH: Yeah.

1 MR. JEFFERY MANISHEN: -- and not be 2 arrogant. 3 DR. CHARLES SMITH: Yes. 4 MR. JEFFERY MANISHEN: Thanks. 5 DR. CHARLES SMITH: Yes. 6 MR. JEFFERY MANISHEN: No further 7 questions. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 9 Manishen. Mr. Falconer...? 10 11 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 12 MR. JULIAN FALCONER: Good morning, Dr. 13 Smith. My name is Julian Falconer, I represent 14 Nishnawbe-Aski Nation, -- 15 DR. CHARLES SMITH: Yes. 16 MR. JULIAN FALCONER: -- a political 17 organization that represents approximately forty-five 18 thousand (45,000) First Nations communities representing 19 northern Ontario. 20 And secondly, I represent Aboriginal Legal 21 Services of Toronto, a -- a legal agency providing legal 22 services across the Province to First Nations 23 communities. 24 DR. CHARLES SMITH: Yes. 25 MR. JULIAN FALCONER: The area that my

1 clients have been exploring in these proceedings and want 2 to briefly explore with you in the ten (10) minutes that 3 I have relates -- 4 DR. CHARLES SMITH: I'm sorry, I 5 shouldn't have laughed. 6 MR. JULIAN FALCONER: No, that's all 7 right, relates to the -- I'm positive it can't be a good 8 thing when you're cross-examining a witness if they 9 laugh, but relate -- it relates to the question of 10 accountability within the Office of the Chief Coroner. 11 DR. CHARLES SMITH: Yes. 12 MR. JULIAN FALCONER: And specifically, 13 what I'm interested in exploring with you is as the 14 questions surrounding the quality or nature of your work 15 arose, you would have been apprised at one (1) level or - 16 - or another of the interest that those above you took in 17 reviewing your work, correct? It was brought to your 18 attention that people had concerns. 19 DR. CHARLES SMITH: Yes. Yeah, yeah, on 20 a case-by-case basis, they were discussed largely with 21 Dr. Cairns, yes. 22 MR. JULIAN FALCONER: And so as matters 23 developed, for example, when the College of Physicians 24 and Surgeons took an interest, you were apprised of the 25 investigation.

1 DR. CHARLES SMITH: Yes. 2 MR. JULIAN FALCONER: And you were 3 apprised of that investigation? 4 DR. CHARLES SMITH: Yes. 5 MR. JULIAN FALCONER: And you were 6 apprised of the review that Dr. Young initially proposed 7 to -- to undertake, yes? 8 DR. CHARLES SMITH: Well, I -- I -- I had 9 asked him to -- to undertake a peer review, yeah. So -- 10 but -- but I believe that he began that at -- at my 11 request though -- though no doubt, he probably would have 12 done it on his own. I shouldn't speculate. But I -- I 13 believed it was valuable for me because I was too close 14 to it, and I felt a -- a peer review was -- was 15 important. 16 MR. JULIAN FALCONER: Now it's apparent 17 that in late 1999, early 2000, you commenced a civil 18 action relating to the CBC's airing of the Fifth Estate, 19 yes? 20 DR. CHARLES SMITH: That's correct. 21 MR. JULIAN FALCONER: So obviously the 22 Fifth Estate and the Maclean's Magazine article 23 subsequently both came to your attention? 24 DR. CHARLES SMITH: Yes. 25 MR. JULIAN FALCONER: All right. So

1 there was no doubt that as concerns rose, people who had 2 those concerns -- the existence of the concerns and who 3 had them was being brought to your attention, correct? 4 DR. CHARLES SMITH: That's correct. 5 MR. JULIAN FALCONER: Now, what I want to 6 ask you about is this: It has been set out in pretty 7 clear terms that over a ten (10) year period between 1994 8 and 2004, Dr. James Young occupied both the positions of 9 Chief Coroner for the Province of Ontario and the 10 position of Assistant Deputy Minister in respect to the 11 Solicitor General's Office that oversees -- 12 DR. CHARLES SMITH: Mm-hm. 13 MR. JULIAN FALCONER: -- the Chief 14 Coroner, you know that? 15 DR. CHARLES SMITH: I -- I thought he was 16 Acting Deputy Minister. Okay. So -- so my information 17 was wrong, I'm sorry. 18 MR. JULIAN FALCONER: He became Assistant 19 Deputy Minister. 20 DR. CHARLES SMITH: All right. Thank 21 you. Yeah. 22 MR. JULIAN FALCONER: And it's been -- 23 Dr. Young's position is repeated on November 29th and 24 then again on December 4th on numerous occasions and 25 December 4th, pages 83, 86, 95. It's been repeated on

1 numerous occasions by Dr. Young, as he put it, there was 2 still checks and balances in place. There was a Deputy 3 Minister, and there was independence to the Minister. At 4 page 86, Dr. Young said: 5 "The government was well aware that I 6 was reporting to myself, reporting in 7 essence to the Deputy Minister. I was 8 reporting at a higher level with more 9 detail to the Deputy Minister." 10 In other words that, whatever difficulties 11 arose from the fact that Dr. Young occupied the role of 12 Assistant Deputy Minister, it was cured by the existence 13 of these checks and balances, all right? I'm simply 14 giving you -- 15 DR. CHARLES SMITH: Yes. 16 MR. JULIAN FALCONER: -- that context. 17 DR. CHARLES SMITH: Yes. I am, I hear 18 you. 19 MR. JULIAN FALCONER: I'm going to read 20 to you the product of the research of -- of Ms. 21 Cuthbertson and Ms. Esmonde: 22 "In years March '99 to June 2000, the 23 Deputy Solicitor General was one John 24 E. Flemming." 25 Did you ever hear from a representative of

1 the Deputy Solicitor General or the Deputy Solicitor 2 General himself about conducting any kind of independent 3 review or investigation of your work? 4 DR. CHARLES SMITH: I -- I don't believe 5 I've ever had any communication with anyone higher than - 6 - than Dr. Young. 7 MR. JULIAN FALCONER: All right. I am 8 going to run the names by you, just -- 9 DR. CHARLES SMITH: Okay. 10 MR. JULIAN FALCONER: -- to make sure, 11 all right? In the time period of August 2000 to January 12 2001, the Deputy Solicitor General was Virginia West. 13 Again, at any time during the course of the various 14 concerns being expressed in respect of your work, did you 15 ever hear, by way of review or proposed investigation or 16 indeed, proposed interview, from Virginia West or any 17 representative of Virginia West, in respect of your work? 18 DR. CHARLES SMITH: The name means 19 nothing to me and what you've suggested does not bring 20 anything to mind. 21 MR. JULIAN FALCONER: Virginia West 22 continued as the Deputy Minister for Public Safety and 23 Policing into 2002, 2003. 24 In January 2003 through to January 2004, 25 Mr. Saad Raffi was the Deputy Minister of Public Safety

1 and Policing. Did you ever hear from Mr. Raffi in 2 respect of concerns around your work? 3 DR. CHARLES SMITH: No. It's the same 4 answer that I've given you. 5 MR. JULIAN FALCONER: In February 2004 6 through to September 2004, the Deputy Minister of Public 7 Safety and Policing was Mr. Michael Fenn. 8 Did you ever hear from Mr. Michael Fenn or 9 a representative of Mr. Fenn's in respect to concerns 10 with respect to your work? 11 DR. CHARLES SMITH: No, Mr. Falconer, no. 12 The name again means nothing. 13 MR. JULIAN FALCONER: So that, at no 14 time, as far as you knew, and I only want to know -- 15 DR. CHARLES SMITH: Mm-hm. 16 MR. JULIAN FALCONER: -- your knowledge 17 because I appreciate something could go on that you don't 18 know; I only want to know your knowledge. 19 As far as you knew, not a soul above the 20 title of Assistant Deputy Minister ever sought to 21 independently inquire of you about the ongoing and 22 increasing concerns around your work? 23 DR. CHARLES SMITH: Your statement is 24 correct. 25 MR. JULIAN FALCONER: Now, if you could

1 turn to the binder, that is the overview binder on Sharon 2 prepared by Commission Counsel on November 12th, 2007, 3 and I'll be very brief. 4 DR. CHARLES SMITH: Okay. 5 MR. JULIAN FALCONER: I'm particularly 6 interested in pages 154 to 155. 7 DR. CHARLES SMITH: Slash 154 155? 8 MR. JULIAN FALCONER: Yes, thank you. 9 DR. CHARLES SMITH: Okay. 10 MR. JULIAN FALCONER: This is document 11 number -- 12 DR. CHARLES SMITH: Yeah. 13 MR. JULIAN FALCONER: -- 144453. 14 DR. CHARLES SMITH: Mm-hm. 15 MR. JULIAN FALCONER: It should have 16 paragraph 337 at 154, do you have that? 17 DR. CHARLES SMITH: I have it, yes, yes. 18 MR. JULIAN FALCONER: What you'll notice 19 about paragraph 337 -- 20 DR. CHARLES SMITH: Yes. 21 MR. JULIAN FALCONER: -- so I think that 22 would be the next page, Mr. Registrar. What you'll 23 notice about paragraph 337 is that it refers to a 24 Ministry of the Solicitor General house book note. 25 DR. CHARLES SMITH: That means nothing to

1 me. 2 MR. JULIAN FALCONER: All right. This is 3 a note in respect of the withdrawal of murder charges 4 relating to one (1) of the cases you're involved in and 5 it's a house book note to the Solicitor General. 6 And if you go to the next page, 338, 7 you'll see it's a briefing note for the Minister and it - 8 - in 338, the last paragraph, in particular, I want to 9 draw to your attention: 10 "The original pathologist is a 11 recognised pediatric pathologist who 12 continues to conduct pediatric 13 autopsies for the Office of the Chief 14 Coroner. He was the main subject in a 15 Fifth Estate program regarding this 16 death and the deaths of two (2) other 17 young children. He's launched a 18 lawsuit over this matter. The other 19 two (2) families have made complaints 20 regarding the pathologist to the 21 College of Physicians and Surgeons." 22 I'm going to suggest to you that from this 23 briefing note, this house note, there's absolutely no 24 doubt that the Deputy Minister and Minister of the day, 25 the Solicitor General, would have known about the

1 concerns expressed regarding your conduct, correct? 2 DR. CHARLES SMITH: If -- if they had 3 read this, then I would accept your statement, yes. 4 MR. JULIAN FALCONER: 5 "Dr. Young testified that he actually 6 went to the Ministry with a request to 7 assist in your financing of your 8 lawsuit against the CBC." 9 Did you know that? 10 DR. CHARLES SMITH: Well, I -- I know 11 that he offered to -- to pay for part of it, and in the 12 end he did pay for part of it, yes. 13 MR. JULIAN FALCONER: And that those 14 monies came from the Ministry. 15 DR. CHARLES SMITH: Well, the -- the 16 cheque that I received had the Minister of Solicitor 17 General on it, but that -- but every cheque that came in 18 from the Chief Coroner's Office did so, so the issue as 19 to which fund it came from, I can't help you with. 20 MR. JULIAN FALCONER: So, apart from the 21 Solicitor General assisting in writing a cheque for your 22 legal fees, did you ever see any other evidence of any 23 checks and balances that Dr. Young spoke of? 24 DR. CHARLES SMITH: No. 25 MR. JULIAN FALCONER: Thank you, sir.

1 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 2 Falconer. Ms. Fraser...? 3 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.

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

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?

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?

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.

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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 can�t 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

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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, --

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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

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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,

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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

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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

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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.

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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.

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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. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 9 Fraser. We will rise then for fifteen (15) minutes and 10 come back with you, Mr. Gover. 11 12 --- Upon Recessing at 11:20 a.m. 13 --- Upon Resuming at 11:45 a.m. 14 15 THE REGISTRAR: All rise. Please be 16 seated. 17 COMMISSIONER STEPHEN GOUDGE: Mr. 18 Grover...? 19 MR. BRIAN GOVER: Thank you, Mr. 20 Commissioner. 21 22 CROSS-EXAMINATION BY MR. BRIAN GOVER: 23 MR. BRIAN GOVER: Dr. Smith, my name is 24 Brian Gover and I act for the Office of the Chief 25 Coroner, Dr. Young, Dr. Cairns, Dr. Porter, Dr. McLellan,

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1 Dr. Pollanen, Dr. Chiasson, Dr. Wood, and the Regional 2 Supervising Coroners. 3 DR. CHARLES SMITH: Good morning. 4 MR. BRIAN GOVER: Good morning. What 5 I'd like to do, Dr. Smith, is take you through 6 essentially the last twenty-six (26) -- twenty-seven (27) 7 years starting with 1981 when you became a full-time 8 pathologist staff member at the Hospital for Sick 9 Children. 10 And as I take you through that chronology 11 it might be helpful if you have your written evidence 12 before you and perhaps page 11 might be a good place to 13 start -- 14 DR. CHARLES SMITH: To start. 15 MR. BRIAN GOVER: -- not that I'll be 16 taking you to it closely. 17 All that by way of preface, Doctor, to 18 this, as I understand it, from a very early stage at your 19 care -- of your career at the Hospital for Sick Children, 20 you worked on medicolegal autopsies, is that right? 21 DR. CHARLES SMITH: That's correct. 22 MR. BRIAN GOVER: And you began full-time 23 employment in July 1981? 24 DR. CHARLES SMITH: Yes. 25 MR. BRIAN GOVER: At that time, you had a

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1 minimal amount of experience in criminally suspicious 2 cases -- 3 DR. CHARLES SMITH: Yes. 4 MR. BRIAN GOVER: -- is that right? You 5 had an interest in autopsy pathology? 6 DR. CHARLES SMITH: Yes. 7 MR. BRIAN GOVER: And in particular, you 8 had some interest in forensic pathology, is that fair? 9 DR. CHARLES SMITH: Yes, yes, thanks to 10 my -- to my teachers, yes. 11 MR. BRIAN GOVER: And overtime, you began 12 to realize that you enjoyed autopsy pathology somewhat 13 more than surgical pathology, is that fair? 14 DR. CHARLES SMITH: They're -- they're 15 both very engaging, but I think -- I think your question 16 is correct, yes. 17 MR. BRIAN GOVER: And you also found 18 working on coroner's cases to be rewarding, is that 19 right? 20 DR. CHARLES SMITH: Yes. 21 MR. BRIAN GOVER: And is it fair to say 22 that because you found working on coroner's cases to be 23 rewarding and because of your interest in autopsy 24 pathology, you came to perform more autopsies than some 25 of your colleagues?

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1 DR. CHARLES SMITH: That shift in 2 workload didn't occur at the beginning. It occurred much 3 later on. But some of my colleagues, from the point that 4 they joined the hospital, did not want to do that work, 5 and -- and there was one (1) colleague, Dr. Becker, who, 6 when I began at the hospital, did some coroner's 7 autopsies, and shortly after I joined the hospital, he 8 stopped. 9 MR. BRIAN GOVER: And that left a void 10 for you to fill, in part, is that right? 11 DR. CHARLES SMITH: There -- there were 12 tremendous, what would the term would have been used 13 then, "manpower needs" or, you know, human -- "human 14 resource issues", and there -- there were voids in many 15 places, but that was one (1) which Dr. Phillips 16 approached me to fill. 17 MR. BRIAN GOVER: And is it fair to say 18 that with experience -- as you gain more experience doing 19 autopsies and medicolegal autopsies, in particular, you 20 gained greater interest in the field? 21 DR. CHARLES SMITH: I -- I think it's -- 22 yeah, one (1) would feed on the other, yes. 23 MR. BRIAN GOVER: And overtime, we got to 24 a point that you've alluded to a short while ago, and 25 that is that most of the autopsies you were performing

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1 came to be medicolegal autopsies, is that right? 2 DR. CHARLES SMITH: That -- that would be 3 in -- I think, at some point, in the 1990s that -- the 4 majority would have shifted to the coroner's cases. 5 MR. BRIAN GOVER: Fair enough. Now, 6 throughout the 1980s, in the early stages of your career, 7 your contact with the Coroner's Office was through 8 investigating coroners on a case-by-case basis -- 9 DR. CHARLES SMITH: That was the va -- 10 MR. BRIAN GOVER: -- is that right? 11 DR. CHARLES SMITH: That was the vast 12 majority of my contact, yes. 13 MR. BRIAN GOVER: And that would come 14 about in that you would receive a coroner's warrant for a 15 post-mortem examination? 16 DR. CHARLES SMITH: Or -- or a phone call 17 or something, yes. 18 MR. BRIAN GOVER: And you would complete 19 your work and then submit the completed report to the 20 coroner, is that right? 21 DR. CHARLES SMITH: Yes, and -- and very 22 frequently, there would be a telephone conversation after 23 the autopsy so that -- so that it wasn't just writing a 24 report for the coroner; there would be some one-on-one 25 communication, again, on a case-by-case basis.

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1 MR. BRIAN GOVER: Fair enough. But at 2 that point, in the 1980s, you had no expectation that 3 your post-mortem report was being reviewed by a 4 pathologist, is that fair? 5 DR. CHARLES SMITH: That's -- I -- I had 6 no -- no expectation or understanding of that, no. 7 MR. BRIAN GOVER: Right. Let alone by a 8 forensic pathologist, is that right? 9 DR. CHARLES SMITH: That's correct. 10 MR. BRIAN GOVER: And this was at a time 11 when the Forensic Pathology Service was a division of the 12 Ministry of the Solicitor General that was separate from 13 the Office of a Chief Coroner, is that right? 14 DR. CHARLES SMITH: That occurred. You 15 would have the information, but it certainly occurred in 16 the 1980s; I think it was almost the mid 1990s by the 17 time that changed. 18 MR. BRIAN GOVER: Yes, and I'll take you 19 to that in the course of these questions. And I suggest 20 that it wasn't a matter of particular concern for you 21 that your reports were submitted without review by 22 another pathologist, is that fair? 23 DR. CHARLES SMITH: That -- that's fair. 24 I mean we -- I was simply doing what everyone else was 25 doing and what had occurred historically. The -- the val

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1 -- the -- the review process that I relied on was the one 2 (1) that I've described in terms of rounds or informal, 3 you know, consults on -- on a slide or slides with a 4 colleague, so -- but there was never any understanding or 5 expectation on my part that there was rev -- you know, a 6 formal review process by a pathologist after the report 7 was signed and sent out. 8 MR. BRIAN GOVER: Now, in fairness, 9 though, you were working in a -- a world class facility, 10 is that right? 11 DR. CHARLES SMITH: I was honoured to 12 work in -- in the institution, yes. 13 MR. BRIAN GOVER: And you were working 14 with pediatric pathologists who were well known in their 15 field. 16 DR. CHARLES SMITH: Many had 17 international reputations, yes. 18 MR. BRIAN GOVER: Yes, people such as Dr. 19 Phillips. 20 DR. CHARLES SMITH: Yes. 21 MR. BRIAN GOVER: And people such as Dr. 22 Cutz. 23 DR. CHARLES SMITH: Yes. Dr. Becker, 24 yes. 25 MR. BRIAN GOVER: And Dr. Becker, as

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1 well -- 2 DR. CHARLES SMITH: Yes. 3 MR. BRIAN GOVER: -- and -- and you were 4 confident in your own ability, as well. 5 DR. CHARLES SMITH: Well, I -- I was, but 6 I would reflect the remark that Dr. Butt made, if I've 7 quoted him, you know, "too soon, smart, too world wise", 8 but I -- I had a growing recognition that with, you know, 9 with cases and with education, my -- my diagnostic 10 expertise would be growing. 11 MR. BRIAN GOVER: Fair enough. And you 12 had the assistance of specialists such as 13 neuropathologists. 14 DR. CHARLES SMITH: Well, that would be 15 Dr. Becker and others, yes. 16 MR. BRIAN GOVER: Yes, and pediatric 17 radiologists. 18 DR. CHARLES SMITH: I -- I regard their 19 assistance invaluable. 20 MR. BRIAN GOVER: As well as clinicians 21 at the Hospital for Sick Children. 22 DR. CHARLES SMITH: Many whose -- whose 23 insight was very valuable, yes. 24 MR. BRIAN GOVER: And this was, after 25 all, a teaching hospital.

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1 DR. CHARLES SMITH: Teaching and 2 research, yes. 3 MR. BRIAN GOVER: Yes, and -- and in 4 fact, cutting-edge research was being conducted there, 5 isn't that right? 6 DR. CHARLES SMITH: Yes, I think I've 7 alluded to some work such as Dr. Cutz'. 8 MR. BRIAN GOVER: All right. And you 9 were working with very experienced pediatric pathologists 10 who were also working with local coroners. 11 DR. CHARLES SMITH: Yes. 12 MR. BRIAN GOVER: Now, in addition to 13 your growing interest in experience-base in pediatric 14 pathology, you participated in a number of speaking 15 engagements related to your interest in pediatric and 16 forensic pathology, is that right? 17 DR. CHARLES SMITH: yes. 18 MR. BRIAN GOVER: And just if I could 19 take you back to your written evidence, Doctor, to page 20 130, this will be a portion of your curriculum vitae. 21 DR. CHARLES SMITH: Yes. 22 MR. BRIAN GOVER: And I'll take you 23 through some of these items that appear at page 130 and 24 carrying through to page 132. 25 DR. CHARLES SMITH: Yes.

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1 MR. BRIAN GOVER: I'll start with page 2 130, this is under the "Invited lectures" heading. 3 DR. CHARLES SMITH: I have it, yes. 4 MR. BRIAN GOVER: And number 3 is an 5 update on SIDS, Ministry of the Solicitor General seminar 6 on forensic pathology, September 1985, Toronto. 7 DR. CHARLES SMITH: Yes. 8 MR. BRIAN GOVER: And I understand that 9 that came about at the invitation of Dr. Hillsdon-Smith. 10 DR. CHARLES SMITH: That's correct. 11 MR. BRIAN GOVER: And similarly, also in 12 1985, Item number 4 is "Forensic Pediatric Pathology, 13 Ministry of the Solicitor General, seminar on forensic 14 pathology", again, September 1985 Toronto. I take it to 15 be the same seminar. 16 DR. CHARLES SMITH: It was -- yeah, I 17 can't tell you if it was the same day or not, but it was 18 two (2) different topics over a -- at some point, over a 19 period of time, yes. 20 MR. BRIAN GOVER: Fair enough. And 21 essentially, you did double duty at that seminar in 22 speaking on two (2) occasions, is that fair? 23 DR. CHARLES SMITH: Yes. 24 MR. BRIAN GOVER: And this was a lecture 25 -- or these were lectures for pathologists in Ontario who

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1 performed coroner's autopsies. 2 DR. CHARLES SMITH: Yes. 3 MR. BRIAN GOVER: And this was an honour 4 for you to be asked to speak on those occasions? 5 DR. CHARLES SMITH: Absolutely. 6 MR. BRIAN GOVER: And what you endeavour 7 to do then was to provide new information on SIDS and an 8 overview on some issues in pediatric coroner's autopsies, 9 is that fair? 10 DR. CHARLES SMITH: To the best of my 11 recollection, yes, that's it exactly. 12 MR. BRIAN GOVER: And then as we proceed 13 to Item number 5, this is pediatric forensic pathology, 14 Canadian Congress of Laboratory Medicine, in June 1987 in 15 Quebec. 16 DR. CHARLES SMITH: Yes. 17 MR. BRIAN GOVER: Is that right, sir? 18 DR. CHARLES SMITH: Yes. 19 MR. BRIAN GOVER: And just if I could 20 pause there, it's fair to say, sir, that you felt you had 21 a role to perform in making these presentations? 22 DR. CHARLES SMITH: Yes. Yeah, one of 23 the obligations -- I think it's not necessarily a written 24 obligation -- but one of the, certainly one of the -- the 25 moral or ethical obligations of -- of any physician who

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1 would be associated with Sick Kids is not simply to do 2 the diagnostic work but to share knowledge and insight, 3 and also because of the very unusual nature of the case 4 material, to appropriately use it to further 5 understandings. 6 So -- so education and research were, I 7 think, an expectation that was part of the fabric of the 8 institution, and so I was doing what I believed to be my 9 responsibility just as my colleagues did the same thing. 10 MR. BRIAN GOVER: In other words, you 11 recognized that you could contribute to the body of 12 knowledge in that way, is that fair? 13 DR. CHARLES SMITH: Yes, I was in the 14 position that I could do so; I understood to be. 15 MR. BRIAN GOVER: And certainly you felt 16 able to do so given your training in pediatrics and your 17 growing experience in forensic-type cases, is that fair? 18 DR. CHARLES SMITH: Well I -- I don't 19 want to sound proud but -- but I think that's -- that 20 would reflect my -- my thinking. 21 MR. BRIAN GOVER: And we know that during 22 the period 1985 to 1987, neither Dr. Young nor Dr. Cairns 23 occupied the position of Deputy Chief Coroner or Chief 24 Coroner of Ontario? 25 DR. CHARLES SMITH: That's correct.

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1 MR. BRIAN GOVER: As of 1987, I 2 understand Dr. Cairns was still a local coroner in 3 Brampton. Is that your understanding, sir? 4 DR. CHARLES SMITH: I -- I have sat 5 through one (1) or two (2) lectures that he gave in his 6 role as a local coroner out there, yes. 7 MR. BRIAN GOVER: Right. And Dr. Young 8 didn't become the Deputy Chief Coroner until sometime in 9 1987, is that right? 10 DR. CHARLES SMITH: I -- I don�t have 11 specific recollections, but whatever your documentation 12 says I would certainly accept it. 13 MR. BRIAN GOVER: Fair enough. And if we 14 return then to this list at page 130 of your curriculum 15 vitae, Item number 6 is Preventable Death in Children, 16 Ministry of the Solicitor General, Forensic Pathology and 17 the Homicide Investigator, Toronto, September 1987. 18 Is that correct, sir? 19 DR. CHARLES SMITH: Yes. 20 MR. BRIAN GOVER: And do you recall who 21 invited you to speak on that occasion? 22 DR. CHARLES SMITH: I -- I have -- I have 23 a little limited, there's a -- I -- I do -- I have only a 24 little recollection. To the best of my understanding 25 that was again Dr. Hillsdon-Smith but -- but if you have

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1 information that would contradict that, I would accept 2 it. 3 MR. BRIAN GOVER: I -- I have no such 4 information, -- 5 DR. CHARLES SMITH: Well, all -- all 6 right. 7 MR. BRIAN GOVER: -- Dr. Smith. 8 DR. CHARLES SMITH: Yeah. 9 MR. BRIAN GOVER: And I won't go through 10 each of these items, -- 11 DR. CHARLES SMITH: Mm-hm. 12 MR. BRIAN GOVER: -- but I will go 13 through several of them and I won't put you on the spot 14 asking you who invited you for each of them, but Item 15 number 10, Unnatural Pediatric Deaths, Ministry of the 16 Solicitor General, Ontario Educational Course for 17 Coroners, October 1987, Toronto? 18 DR. CHARLES SMITH: Yes, I see that. I 19 think that was Dr. Bennett who -- who I dealt with on 20 that one. 21 MR. BRIAN GOVER: Who was then the Chief 22 Coroner? 23 DR. CHARLES SMITH: I believe he was, 24 yes. 25 MR. BRIAN GOVER: Item number 12,

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1 Pediatric Forensic Pathology, Canadian Congress of 2 Laboratory Medicine, June 1988, in Winnipeg. 3 DR. CHARLES SMITH: Yes. That's a -- 4 that's a meeting which is organized by the Canadian 5 Association of Pathologists, so that would be a meeting 6 that any pathologist in Canada, regardless of the type of 7 work they do or where they work, could -- could go and 8 then the pathologists opt to -- there's -- there's many, 9 many lectures or courses available to them, and then they 10 would opt to go to whichever aligned with their area of 11 interest. 12 MR. BRIAN GOVER: Fair enough. And then 13 carrying in to 1988, you continued to present at a number 14 of speaking engagements on the issues of both pediatric 15 and forensic pathology, is that fair? 16 DR. CHARLES SMITH: Yes. 17 MR. BRIAN GOVER: And I note that in Item 18 number 14, at page 131, Accidental and Non-accidental 19 Death in Children, you were speaking in July 1988 to the 20 Ontario Association of Crown Attorneys, is that right, 21 sir? 22 DR. CHARLES SMITH: Yes. I was -- I was 23 invited by a Crown attorney who, I believe, at that time 24 was the Crown somewhere in that area in western Ontario. 25 But I think I had done a -- I had done a -- been involved

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1 in a criminal case with him so -- so that was the -- 2 that's the best of my recollection of that. 3 MR. BRIAN GOVER: Fair enough. And by 4 then, Dr. Smith, you were becoming, I'll suggest, pretty 5 well known by participants in the Criminal Justice 6 System; Crown attorneys, defence lawyers and so on, is 7 that fair? 8 DR. CHARLES SMITH: You might have a 9 better insight on that than I do. 10 MR. BRIAN GOVER: Let's put it this way -- 11 DR. CHARLES SMITH: Yeah. 12 MR. BRIAN GOVER: -- you've testified in 13 Court on a number of occasions by then. 14 DR. CHARLES SMITH: By -- by this time, I 15 -- I had done that a number of times, yes. 16 MR. BRIAN GOVER: Number 15 is Lethal 17 Child Abuse, Ministry of the Solicitor General, Forensic 18 Pathology and the Homicide Investigator in Toronto in 19 September 1988 -- 20 DR. CHARLES SMITH: Yes. 21 MR. BRIAN GOVER: -- is that right, sir? 22 DR. CHARLES SMITH: Yes. 23 MR. BRIAN GOVER: And Item number 17 is 24 Birth Trauma, When to Call the Coroner, Faculty of 25 Medicine, Continuing Medical Education Course in

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1 Perinatal Pathology, November 1988 in Toronto. 2 Now, this appears to be a continuing 3 medical education program for physicians -- 4 DR. CHARLES SMITH: Yes. 5 MR. BRIAN GOVER: -- is that right? 6 DR. CHARLES SMITH: Yes, yes. Yeah, it 7 was both for pathologists, as well as obstetricians and 8 pediatricians and that -- that sort of thing, yes, but -- 9 but the issue of birth trauma is -- is obviously 10 important to those practitioners, and my -- my lecture 11 dealt with what the Coroner's Act said or what it was 12 being interpreted as at that time, and -- and also, I 13 presented the pathology of birth trauma so that it was 14 both the legal process, as well as the pathology. 15 MR. BRIAN GOVER: Thank you. And I take 16 it that these speaking engagements help build your 17 experience and comfort level in, first all, pediatric 18 pathology, is that fair? 19 DR. CHARLES SMITH: Yes. 20 MR. BRIAN GOVER: And also, they help 21 build your experience and comfort level in forensic 22 pathology. 23 DR. CHARLES SMITH: Yeah, you -- you 24 cannot give a lecture with -- I can't -- I could not give 25 a lecture without learning something as part of the

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1 research and the preparation for that, yes. 2 MR. BRIAN GOVER: And it stands to reason 3 that these engagements help build your reputation in the 4 field. It just stands to reason, is that fair? 5 DR. CHARLES SMITH: I -- I can accept 6 that. 7 MR. BRIAN GOVER: All right. And if we 8 now look again at page 131, and I'll start with -- well, 9 I see there was an update on SIDS in Item 20 for the 10 Canadian Foundation For the Study of Infant Deaths in 11 March 1989. 12 DR. CHARLES SMITH: Yes, that's -- that's 13 a variety of people, but that -- but that is -- there 14 would be a lot of parents who had -- had lost babies to 15 SIDS who -- who would have attended that, as well, so 16 it's -- it wasn't purely a medical audience by any 17 suggestion. 18 MR. BRIAN GOVER: Thank you. Then I'll 19 deal with Items 23 through 28 at once here. 23) Workshop 20 on Pediatric Forensic Pathology, Canadian Congress of 21 Laboratory Medicine, June 1989 in Ottawa. 22 DR. CHARLES SMITH: Yes. 23 MR. BRIAN GOVER: Number 24) Pediatric 24 Forensic Pathology, Ministry of the Solicitor General, 25 Seminar on Forensic Pathology, September 1989, Toronto.

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1 DR. CHARLES SMITH: Yes. 2 MR. BRIAN GOVER: 25) The Shaking 3 Whiplash Injury, Ministry of the Solicitor General, 4 Educational Course for Crown Attorneys, November 1989, 5 Toronto. 6 DR. CHARLES SMITH: Yes. 7 MR. BRIAN GOVER: Number 26) The Medical 8 Aspects of Child Abuse, First National Conference on 9 Child Abuse and Abduction, November 1989, Calgary. 10 DR. CHARLES SMITH: Yes. 11 MR. BRIAN GOVER: Number 27) SIDs, Why Do 12 Babies Die in Infancy, Canadian Foundation For The Study 13 of Infant Deaths, December 1989, Toronto. 14 DR. CHARLES SMITH: Yes. 15 MR. BRIAN GOVER: And I'll stop there. 16 That's the same organization that you had spoken to in 17 March of that year, as -- as described in Item 20, is 18 that fair? 19 DR. CHARLES SMITH: Yes, yes. 20 MR. BRIAN GOVER: And Number 28 is 21 Forensic Pathology of Infancy and Childhood Homicide 22 Investigator Seminar, February 1990, Toronto. 23 DR. CHARLES SMITH: Yes. 24 MR. BRIAN GOVER: And this homicide 25 investigator seminar was that the -- what was then the

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1 Metropolitan Toronto Police Force or was it broader? 2 DR. CHARLES SMITH: Well, it -- as I -- 3 as I recall, and again, I could stand corrected, it was a 4 seminar that was organized for -- or by the homicide 5 squad for Metro-Toronto Police, but I'm -- I'm certain 6 the audience was limited to that. 7 I think it was a much broader audience, 8 but I -- but my memory could be wrong. 9 MR. BRIAN GOVER: Fair enough. And -- 10 and I know it's sometime ago, Doctor. If I were to 11 suggest to you that Dr. Young became the Chief Coroner of 12 Ontario in March of 1990 -- 13 DR. CHARLES SMITH: Yes. 14 MR. BRIAN GOVER: -- does that strike you 15 as being accurate? 16 DR. CHARLES SMITH: I -- I can't confirm 17 it, but, yes, I know it occurred sometime around then, 18 yes. 19 MR. BRIAN GOVER: Thank you. 20 DR. CHARLES SMITH: Yeah. 21 MR. BRIAN GOVER: Now, I'll take you, as 22 well to page 132 and I'll try to do this quickly. Number 23 29) Practical Pediatric Forensic Pathologist, Northeast 24 Ohio University's College of Medicine, March 1990, in 25 Akron?

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1 DR. CHARLES SMITH: Yes? Someone who 2 knew me asked if I would -- if I would give a lecture to 3 -- on forensic aspects of pediatric pathology to a group 4 of pediatric pathologists in -- in that part of the 5 country. 6 MR. BRIAN GOVER: Thank you. Number 30) 7 Investigation of Homicides in Children, Bick Police 8 College, Metropolitan Toronto Police, June 1990, Toronto. 9 10 DR. CHARLES SMITH: Yes, that -- that 11 would be the first time, and it occurred on a number of 12 occasions over the years that -- that there were -- that 13 I was asked to give a lecture in training courses for 14 police officers who were learning new areas in 15 anticipation of whatever new assignments or -- or that so 16 it was part of the continuing education or upgrading of 17 education for -- for police officers who were going to 18 need specialized information, and so I would come in for 19 a half day in, you know, in a one (1) or two (2) week 20 course, something like that. 21 MR. BRIAN GOVER: And the goal was 22 always to sensitize them to some of the issues in 23 pediatric forensic pathology; is that fair? 24 DR. CHARLES SMITH: Yes. Yeah. Yeah. 25 The problems and the pitfalls, yes.

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1 MR. BRIAN GOVER: Number 31) The 2 Investigation of Sudden Infant Death Syndrome and of 3 Child Abuse, Criminal Investigator's Seminar, Ontario 4 Provincial Police College, August 1990, Brampton? 5 DR. CHARLES SMITH: Yes, I remember 6 giving that lecture, yes. 7 MR. BRIAN GOVER: Number 33) Fatal Abuse 8 and Sexual Abuse, Bick Police College, Metropolitan 9 Police November 1990, Toronto? 10 DR. CHARLES SMITH: Yes. 11 MR. BRIAN GOVER: Number 35) The 12 Pathology of Shaken Baby Syndrome, First North American 13 Conference on Child Abuse and Neglect and the Fourth 14 National Child Abuse Conference USA, June 1991, Toronto? 15 DR. CHARLES SMITH: Yes. 16 MR. BRIAN GOVER: Number 36) The Post- 17 Mortem Timing of Injuries, First North American 18 Conference on Child Abuse and Neglect and Fourth National 19 Abuse Conference USA, June 1991, Toronto, and this 20 appears to be another occasion when you spoke twice at 21 the same conference; is that fair? 22 DR. CHARLES SMITH: Yeah, the -- yes. I 23 -- I do remember a little of those lectures, yes. They 24 were different topics at different times. 25 MR. BRIAN GOVER: Yes. Item 37) Child

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1 Abuse again at the Bick Police College, Metropolitan 2 Toronto Police, June 1991, Toronto? 3 DR. CHARLES SMITH: Yeah. That's another 4 one of those education/course/upgrade things I've just 5 described. 6 MR. BRIAN GOVER: Yes, and I note that 7 the next item, Item 38) Workshop on the Investigation of 8 Pediatric Deaths, Ministry of the Solicitor General 9 Educational Course for Coroners, October 1991, Toronto? 10 DR. CHARLES SMITH: Yes. There -- there 11 were really two (2) -- two (2) major education programs 12 for coroners at that time; one (1) typically was in the 13 fall which was put on by, essentially, the Chief Coroner. 14 And then in the springtime, there was 15 another one which, as I recall was -- was usually at the 16 -- at the behest of the Ontario Coroners' Association, 17 but if I -- but -- but if I've got that wrong or you have 18 documentation that disagrees, please accept that. 19 MR. BRIAN GOVER: No, I'm -- I'm not 20 about to contradict you, Dr. Smith, in fact, I'm going to 21 suggest that Dr. Cairns became Deputy Chief Coroner in 22 the fall of 1991? 23 DR. CHARLES SMITH: Yes, I accept that. 24 It was -- I certainly remember it was in that time 25 period, yes.

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1 MR. BRIAN GOVER: Right. And for example 2 -- and I won't take you to the -- the Amber case, but we 3 know that your autopsy report was prepared in the Amber 4 case or it's dated November 28th, 1988. 5 DR. CHARLES SMITH: Yes. 6 MR. BRIAN GOVER: We know that from the 7 Amber overview report at page 22. 8 DR. CHARLES SMITH: Yes. 9 MR. BRIAN GOVER: And certainly what 10 we've seen and I know we're now up to 1991, but what 11 we've seen is by the time you conducted that autopsy, 12 you'd already spoken on a number of occasions about 13 pediatric forensic pathology; is that fair? 14 DR. CHARLES SMITH: Yes. Yes. 15 MR. BRIAN GOVER: And in fairness to you, 16 you'd conducted a number of cases in that field by then, 17 and you'd conducted autopsies? 18 DR. CHARLES SMITH: Yes, that's correct. 19 MR. BRIAN GOVER: And these presentations 20 that I've covered with you which, by the way, include 21 something that occurs after Dr. Cairns became Deputy 22 Chief Coroner. Item 39) the Pathology of Child Homicide, 23 Tenth Annual Homicide Investigators Seminar, April 1992, 24 Toronto. 25 These presentations were all given by you

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1 as a pediatric pathologist from The Hospital for Sick 2 Children. 3 Is that right, sir? 4 DR. CHARLES SMITH: Absolutely. That's 5 correct. 6 MR. BRIAN GOVER: And many of the 7 presentations I've covered with you, in fact, right up to 8 number 37 -- the Child Abuse Seminar at the Bick Police 9 College for the Metropolitan Toronto Police in June 1991 10 -- everything up to and including that took place before 11 the creation of the Ontario Pediatric Forensic Pathology 12 Unit. 13 DR. CHARLES SMITH: That's correct. 14 MR. BRIAN GOVER: And in fact, the first 15 contract wasn't signed until September 1991. 16 Is that fair, sir? 17 DR. CHARLES SMITH: I -- I accept that. 18 I can't remember the date of the contract. 19 MR. BRIAN GOVER: And Dr. Smith, you 20 continued to make presentations, as I understand it, 21 pretty much throughout your career. Is that right? 22 DR. CHARLES SMITH: Yes. 23 MR. BRIAN GOVER: And it's fair to say 24 that at the start of your career, in particular, like -- 25 like lawyers, I suppose, you welcomed the opportunity to

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1 speak about your work. 2 DR. CHARLES SMITH: Yes, yes. 3 MR. BRIAN GOVER: And as we've already 4 discussed, there was an expectation that you would 5 conduct research and that you would write and that you 6 would speak as a member of the staff at The Hospital for 7 Sick Children. 8 DR. CHARLES SMITH: And -- and teach one- 9 on-one residents and that sort of thing as well. So it 10 wasn't simply formal presentations, no. There was an 11 obligation to, you know, to teach other practitioners as 12 well. 13 In a -- I -- for part of this time, I ran 14 the Residency Program, so I felt a tremendous obligation 15 to the forty (40) odd pathology trainees that I looked 16 after. 17 MR. BRIAN GOVER: In all of these things 18 -- the research, writing, teaching -- they're all 19 expectations that were placed upon you as a staff member 20 at a world class academic institution like The Hospital 21 for Sick Children. 22 Is that fair? 23 DR. CHARLES SMITH: That -- I understood 24 that to be my role, yes. 25 MR. BRIAN GOVER: And you were confident

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1 in your pediatric pathology ability. Is that fair? 2 DR. CHARLES SMITH: I -- I thought I was 3 -- yeah, was a good diagnostician or a good practitioner, 4 yeah. If I -- I risk a statement of pride there, but I 5 think that I would have told you that at that time. 6 MR. BRIAN GOVER: And you were confident 7 in your work in medicolegal cases? 8 DR. CHARLES SMITH: Yes. 9 MR. BRIAN GOVER: And in fact, I 10 understand that during the 1980s, at a fairly early stage 11 in your career, you were asked by Dr. Hillsdon-Smith to 12 go to his office and review a case with him. 13 Is that right? 14 DR. CHARLES SMITH: Yes. Yeah. Dr. 15 Hillsdon-Smith did not -- he was -- he was a -- a 16 perhaps, a private man. And so this -- this was not 17 something that -- that I was aware he'd ever done before, 18 but he requested that I review a case and I did so, in 19 his office, in the presence of another person whose 20 identity I don't recall; gave him my -- just my verbal 21 opinion. And then he thanked me and indicated that was 22 sufficient and -- and I left. 23 MR. BRIAN GOVER: And you reviewed slides 24 on that occasion. Is that correct? 25 DR. CHARLES SMITH: Yeah, I -- I reviewed

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1 microscopic slides. Now there would be other information 2 that I reviewed as well in terms of, you know, someone 3 else's naked eye observations at autopsy. But I have no 4 recollection of the specifics of the case. 5 MR. BRIAN GOVER: And is it fair to say 6 that Dr. Hillsdon-Smith appeared to be confident in your 7 ability as a diagnostician. 8 DR. CHARLES SMITH: That's how I would 9 have interpreted that -- that exchange or that -- that 10 interaction that day. 11 MR. BRIAN GOVER: And by the way, in 12 terms of interaction with Dr. Hillsdon-Smith, is it fair 13 to say that you only interacted with him on two (2) or 14 perhaps, three (3) occasions? 15 DR. CHARLES SMITH: You know, apart from 16 a handshake in the hallway and you know, and a smile, a 17 cordial greeting, but -- but that's not interaction. At 18 a professional level, that's simply colleagues passing, 19 you know, in -- in the course of doing business kind of a 20 thing, yeah. 21 MR. BRIAN GOVER: Fair enough. And the - 22 - the occasions that I have in mind, and let me know if 23 I'm wrong, the occasions are: Speaking at the seminar in 24 1985 that we've discussed, -- 25 DR. CHARLES SMITH: Yes.

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1 MR. BRIAN GOVER: -- and then -- 2 DR. CHARLES SMITH: A -- a case 3 consultation;, something like that, yes. 4 MR. BRIAN GOVER: Right. Then going to 5 the Office of the Chief Coroner, -- 6 DR. CHARLES SMITH: Yeah. 7 MR. BRIAN GOVER: -- and looking at the 8 slides and giving him your opinion orally and being 9 thanked by him and -- and that was it? 10 DR. CHARLES SMITH: That was it, correct. 11 MR. BRIAN GOVER: And we've discussed, 12 there may have been one (1) other occasion after 1985 13 when he invited you to speak at the seminar? 14 DR. CHARLES SMITH: Yeah. Yeah. Mm-hm. 15 MR. BRIAN GOVER: So, -- 16 DR. CHARLES SMITH: That -- that -- to 17 the best of my recollection, that's it. If you have any 18 documentation that disagrees with that, I accept it. 19 MR. BRIAN GOVER: Oh -- oh no, I don't, 20 and so what we need to understand is that as a 21 pathologist doing medicolegal autopsies in the 1980s; 22 first of all, you'll agree with me that pediatric 23 forensic pathology cases are among the most difficult 24 cases, is that fair? 25 DR. CHARLES SMITH: I -- I believe that,

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1 and I have never found anyone who has disagreed with 2 that. 3 MR. BRIAN GOVER: And the level of 4 oversight of the 1980s, before the forensic pathology 5 service came under the rubric of the Office of the Chief 6 Coroner, was non-existent, is that really fair? 7 DR. CHARLES SMITH: Yes, I think -- yes, 8 I think it's -- it's non-existent or virtually non- 9 existent. 10 MR. BRIAN GOVER: To the extent that the 11 interaction -- the meaningful interaction you've had then 12 -- in the 1980s, with the Chief Forensic Pathologist, was 13 limited to the interactions that you and I have just 14 covered, -- 15 DR. CHARLES SMITH: Mm-hm. 16 MR. BRIAN GOVER: -- is that right? 17 DR. CHARLES SMITH: And, yeah. I'm not 18 aware that my colleagues had any greater interaction that 19 I did; my -- my colleagues in pediatric pathology at Sick 20 Kids, yeah. 21 MR. BRIAN GOVER: And it goes without 22 saying that Dr. Hillsdon-Smith didn't offer you any 23 mentorship? 24 DR. CHARLES SMITH: No, he didn't, no. 25 MR. BRIAN GOVER: And in fairness,

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1 though, did you seek out mentorship from him? 2 DR. CHARLES SMITH: No. And -- and -- 3 no. And the -- the mind set of cou -- I shouldn't say of 4 course -- the mind set that I had which reflected the 5 culture or the prevailing attitude at the time was that - 6 - was that the greatest value to be brought to bear on 7 the pediatric autopsy was by a knowledge and 8 understanding of pediatric pathology. 9 So it was -- and so the mentorship, if I 10 can use that, was really my -- my training as a Resident 11 and Fellow and then my interaction with my -- my senior - 12 - more senior colleagues at Sick Kids. 13 MR. BRIAN GOVER: And it's vital that we 14 understand that that was the culture prevailing at the 15 time? 16 DR. CHARLES SMITH: I -- I think -- I 17 think that's been made clear. I hope so. 18 MR. BRIAN GOVER: Yes. And your focus 19 was on pediatrics as opposed to forensics? 20 DR. CHARLES SMITH: Absolutely. 21 Absolutely. 22 MR. BRIAN GOVER: And it's only in 23 retrospect that you see the need for forensic training, 24 is that fair? 25 DR. CHARLES SMITH: Absolutely. Yes.

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1 MR. BRIAN GOVER: You weren't looking for 2 it in the 1980s and 1990s? 3 DR. CHARLES SMITH: No. No. 4 MR. BRIAN GOVER: And do you agree with 5 me that the approach taken by Dr. Chiasson was very 6 different from the role taken by Dr. Hillsdon-Smith as 7 Chief Forensic Pathologist? 8 DR. CHARLES SMITH: Yes. Yeah. Many 9 changes had occurred and some of those affect -- were 10 expressed by Dr. Chiasson, and some may have been part of 11 the reorganization. But, yes, in -- at that point in the 12 1990s things -- things began to change. 13 MR. BRIAN GOVER: For example, Dr. 14 Chiasson implemented his paper review where there had 15 been absolutely no review previously. 16 DR. CHARLES SMITH: Yes. 17 MR. BRIAN GOVER: And in many ways, the 18 implementation of his review process, I suggest, was an 19 important step toward quality assurance? 20 DR. CHARLES SMITH: That was the -- the 21 first step that I perceived, you know, apart from the 22 fact that a coroner or a Regional Coroner could read an 23 autopsy report but -- but I was a -- a firm believer in 24 quality assurance; had been involved in that at that 25 point in time, you know, for some dozen years or more at

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1 the Hospital for Sick Children. 2 And so for me, this was a very significant 3 thing which the Office of the Chief Coroner or the Chief 4 Forensic Pathologist had instituted. 5 MR. BRIAN GOVER: And you viewed it as 6 ground-breaking at the time, is that fair? 7 DR. CHARLES SMITH: I -- I regarded it as 8 being -- as being important, yes. 9 MR. BRIAN GOVER: Now the forensic 10 pathology service and the Office of the Chief Coroner 11 were not integrated until September 1993. 12 DR. CHARLES SMITH: I accept that. 13 MR. BRIAN GOVER: Yeah. And you 14 understand that was Dr. Young's initiative? 15 DR. CHARLES SMITH: Yes, with the -- I 16 believe the timing of that coincided with the retirement 17 of Dr. Hillsdon-Smith, but I could be wrong. 18 MR. BRIAN GOVER: Okay. Well, I -- I 19 understand you're right actually, Dr. Smith, but -- and 20 you'll agree that that integration was an improvement? 21 DR. CHARLES SMITH: Yes, there were two 22 (2) solitudes in that -- in that building -- that as I 23 saw them and I -- and you may have different evidence but 24 -- but there were two (2) solitudes which, I think, did 25 not adequately recognize what should have been a more

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1 seamless integration of pathology and other information 2 in -- in a death investigation to come -- to come up with 3 the best information -- not necessarily criminal, 4 anything -- just to come up with the best information. 5 MR. BRIAN GOVER: Okay. And I understand 6 that there were both personal and organizational problems 7 that -- that had existed before integration? 8 DR. CHARLES SMITH: Yeah, I had -- 9 MR. BRIAN GOVER: Is that your 10 understanding as well? 11 DR. CHARLES SMITH: Well, I had some 12 secondhand information about that, yes. 13 MR. BRIAN GOVER: And this -- this 14 initiative of Dr. Young's overcame those problems; is 15 that fair? 16 DR. CHARLES SMITH: It was certainly 17 intended to, and -- and I saw changes, yes. 18 MR. BRIAN GOVER: I'd like to turn to the 19 Paediatric Death Review Committee and as you testified 20 earlier in the week, you together with the Regional 21 Coroner, Dr. Huxter, were founding members of the 22 Paediatric Death Review Committee? 23 DR. CHARLES SMITH: There were -- there 24 were about four (4) or five (5) of us who began that, and 25 so I don't want to -- to over-inflate my role. I -- I

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1 had pushed for that for some period of time. 2 I was -- but pushed only in terms of 3 discussing or, you know, communicating with Dr. Bennett 4 about the possibility of something because I was becoming 5 aware that some jurisdictions in the United States had 6 implemented some review processes either through a 7 medical examiner's officer or whatever, and I saw value 8 to what was being done. 9 So I -- you know, I encouraged it but I 10 certainly didn't intend to, you know, to run it or have a 11 major affect. I just -- it was something that I saw of 12 value. 13 MR. BRIAN GOVER: And -- and I didn't 14 mean to portray you as being immodest, Dr. Smith. The 15 role of the Paediatric Death Review Committee was to look 16 back at these cases; is that fair? 17 DR. CHARLES SMITH: Absolutely. It was - 18 - it was to be an -- in the beginning, it was to be an 19 assist on what had gone on on -- on cases that had been - 20 - had been autopsied or investigated in Ontario, yes. 21 MR. BRIAN GOVER: And it was not to 22 determine cause and manner of death, though? 23 DR. CHARLES SMITH: We may have -- the 24 committee may have been -- been asked its opinion from 25 time-to-time by a Regional Coroner on that but -- but it

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1 was not to provide a second opinion on coroner's 2 investigations at all, no. 3 MR. BRIAN GOVER: Right. 4 DR. CHARLES SMITH: It was -- it was a 5 consultation/problem-solving body. 6 MR. BRIAN GOVER: Right. And Dr. Cairns 7 didn't join the Paediatric Death Review Committee until 8 he became the Chair in 1992; is that right? 9 DR. CHARLES SMITH: Yeah. At some point, 10 there was a reassignment and in -- in fact, at some point 11 Dr. Huxter -- as "the Rock", attracts people -- I 12 believe, moved back to Newfoundland, so there were 13 changes going on at the office. I can't tell you when or 14 what the reasons were but there were changes that were 15 happening. 16 MR. BRIAN GOVER: Fair enough and I may 17 have misstated the evidence. Dr. Cairns may have joined 18 the Paediatric Death Review Committee when he became 19 Deputy Chief Coroner in the autumn of 1991, but he became 20 Chair of it in 1992? 21 That strikes you as being reasonable? 22 DR. CHARLES SMITH: I -- I couldn't tell 23 you when the -- the mantle of responsibility changed but 24 it did change somewhere in there. 25 MR. BRIAN GOVER: Now, Dr. Smith, one (1)

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1 of your main concerns and an impetus for the committee 2 was the standardization of pediatric autopsy techniques; 3 is that right? 4 DR. CHARLES SMITH: Yes, that was -- that 5 was what I could see a need for as a pathologist. There 6 were other needs but -- but my -- what I could see best 7 was from my viewpoint. 8 MR. BRIAN GOVER: If I could take you to 9 your written evidence, to page 32, and here you describe 10 the Crystal case. 11 DR. CHARLES SMITH: Yes. 12 MR. BRIAN GOVER: And I understand you 13 performed an autopsy on an infant twin who died of a head 14 injury and whose twin brother had died some months 15 earlier, is that right? 16 DR. CHARLES SMITH: Yes. 17 MR. BRIAN GOVER: And his autopsy 18 concluded with the cause of death being determined to be 19 SIDS, is that right? 20 DR. CHARLES SMITH: The first -- yeah, 21 the -- the brother who had died sometime earlier was 22 autopsied somewhere in the St. Catharines Welland area, 23 as I understand, and that cause of death was SIDS. 24 MR. BRIAN GOVER: And given the 25 coincidence, you spoke to Dr. Bennett.

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1 DR. CHARLES SMITH: That's -- that's my 2 recollection, yes. 3 MR. BRIAN GOVER: And you suggested that 4 the male twin's death be reviewed. 5 DR. CHARLES SMITH: In -- in light of the 6 fact that -- that his sister had died of a head injury 7 that -- where the different opinions at Sick Kids 8 clinical and pathology opinions pointed to non-accidental 9 injury, yes. 10 MR. BRIAN GOVER: And you recall that a 11 radiologist at the Hospital for Children found evidence 12 of multiple broken bones. 13 DR. CHARLES SMITH: Yeah, we -- there -- 14 there fortunately happened to be an x-ray taken during 15 the resuscitation of the boy. It was not a post-mortem 16 x-ray, but it was -- it -- it was an x-ray taken for the 17 purpose of determining endotracheal tube placement in 18 resuscitation, and -- and I believe it was Dr. Reilly 19 who, at that time, did a lot of the bone x-rays at Sick 20 Kids, as opposed to brain or others, who reviewed the -- 21 that film. 22 MR. BRIAN GOVER: Now, you understand 23 that the body was exhumed and re-autopsied, is that 24 right, sir? 25 DR. CHARLES SMITH: Yes.

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1 MR. BRIAN GOVER: And the diagnosis of 2 SIDS in the male twin's death was changed? 3 DR. CHARLES SMITH: It's my understanding 4 it was. 5 MR. BRIAN GOVER: And as a result, the 6 twin's father was charged and prosecuted for Crystal's 7 death. 8 DR. CHARLES SMITH: Well, I -- yeah, I -- 9 I can't say it was as a result of the exhumation. I 10 believe that the -- that the police investigation was 11 dependent on Crystal's death, but one (1) of the 12 questions came along as to whether an exhumation may 13 provide, what's it called, "similar factor evidence", so 14 that -- that discussion had gone on, you know, between 15 whoever at the Chief Coroner's Office and -- and 16 obviously the legal process, but I don't know what that 17 was. I just -- I just remember that that discussion had 18 occurred. 19 MR. BRIAN GOVER: Fair enough. And I 20 understand that the father was convicted of manslaughter 21 and sentenced to five (5) years. 22 Do you understand that to be the case? 23 DR. CHARLES SMITH: I -- to the best of 24 my recollection, yes. 25 MR. BRIAN GOVER: Now, as a result of

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1 that case, Dr. Bennett directed that there be x-rays or 2 baby grams taken in all SIDS cases, is that right? 3 DR. CHARLES SMITH: That's right, I -- 4 yeah, that was the -- that was for me the -- you know, 5 the significant learning point on -- on that is that this 6 was a -- the possibility of implementing a new best 7 practice. 8 MR. BRIAN GOVER: And you wanted to go 9 further and implement further best practices, and you 10 spoke to Dr. Bennett about the idea of a committee to 11 review all pediatric forensic deaths in the province, is 12 that fair? 13 DR. CHARLES SMITH: That -- yes, that was 14 -- that discussion occurred, yes. 15 MR. BRIAN GOVER: And throughout your 16 time on the Paediatric Death Review Committee, you were 17 an active member, Dr. Smith. 18 DR. CHARLES SMITH: I believe I was, yes. 19 MR. BRIAN GOVER: In your contributions 20 to the Committee's work, you were confident in your 21 ability and experience? 22 DR. CHARLES SMITH: Yes, yeah, certainly 23 there were times when in -- in a discussion that goes on 24 at a committee, you know, people proffer ideas and others 25 can reject them and -- and there was at least one (1)

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1 Committee member, Dr. Bohn, who had an extraordinary 2 ability to understand and interpret pathology, so 3 opinions were challenged, yes, but -- but I brought to 4 the Committee my own viewpoint. 5 MR. BRIAN GOVER: And you had a role in 6 the creation of Memo 631 and the autopsy protocol 7 attached to it, is that right, sir? 8 DR. CHARLES SMITH: We -- we've touched 9 that earlier this week, yes. 10 MR. BRIAN GOVER: Yes. And you wrote 11 substantial parts of it? 12 DR. CHARLES SMITH: I -- I authored the - 13 - the section on the -- the pediatric of the newborn and 14 the pediatric autopsies. 15 MR. BRIAN GOVER: You wrote -- and I 16 think it might be called Appendix D, which it the 17 Protocol For Autopsies. 18 DR. CHARLES SMITH: If -- if that's the 19 letter, yes. 20 MR. BRIAN GOVER: And do you agree with 21 me that Memo 631 also constituted a major step forward? 22 DR. CHARLES SMITH: As I understood it, 23 that was really the -- the first attempt to develop a 24 standardized baseline autopsy -- coroner's autopsy in 25 Ontario. The -- the form -- I think it was called Form

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1 12 then, maybe it's Form 14 now -- but the actual form 2 that is the report of the post-mortem examination was a 3 form that was to be filled out but -- but blanks on a 4 form doesn't necessarily indicate what might be a best 5 practice and so I think -- I think this was significant 6 because -- because as I understood it, it was the first 7 attempt to actually kind of go through, you know, the 8 procedure and what should be done. 9 MR. BRIAN GOVER: Now, during his 10 testimony on the first day of this Inquiry, Dr. Pollanen 11 indicated, and this is at November 12th transcript, page 12 197, lines 9 through 16. I won't take you there. I'll 13 just read this short quote to you. 14 DR. CHARLES SMITH: Okay. 15 MR. BRIAN GOVER: He said that: 16 "The protocol did represent a very 17 important contribution to the 18 investigation of infant death in this 19 province because it was a recognition, 20 for the first time, that there needed 21 to be an organized response to this 22 [referring to Sudden Infant Death 23 Syndrome]." 24 I take it that you don't disagree with 25 that description, sir?

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1 DR. CHARLES SMITH: No, I agree with 2 that. 3 MR. BRIAN GOVER: Now, I'd like to turn 4 now to the Ontario Pediatric Forensic Pathology Unit and 5 your role as Director. 6 And is it fair to say that by the time Dr. 7 Phillips approached Dr. Bennett, the Chief Coroner, about 8 the creation of the Ontario Pediatric Forensic Pathology 9 Unit, you were already very active in -- in these 10 pediatric pathology and medicolegal forensic cases as 11 we've already discussed? 12 DR. CHARLES SMITH: Yes. Yes, I was. 13 MR. BRIAN GOVER: And we've reviewed your 14 speaking engagements? 15 DR. CHARLES SMITH: Yes. 16 MR. BRIAN GOVER: We've reviewed your 17 role in the PDRC? 18 DR. CHARLES SMITH: Yes. 19 MR. BRIAN GOVER: And is it fair to say 20 that when there was word of the potential creation of the 21 Ontario Pediatric Forensic Pathology Unit, you had hopes 22 of being involved in it? 23 DR. CHARLES SMITH: Yes, I -- I think 24 that's fair, yeah. 25 MR. BRIAN GOVER: And --

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1 DR. CHARLES SMITH: In some way. Please 2 understand that the concept of a Directorship was not one 3 which Dr. Phillips or I ever suggested to the best of my 4 recollection but -- but, yeah, I -- I think I had some 5 anticipation that I would be involved in the continuing 6 provision of -- of coroner's autopsies. 7 MR. BRIAN GOVER: And in fact during 8 those early stages in the discussions I suggest Dr. 9 Phillips actually spoke to you about this idea of 10 creating a unit at the hospital? 11 DR. CHARLES SMITH: Yes, there were a 12 number of -- of potentials for that. Some of the 13 discussions were being driven by the economic realities 14 of -- of what it costs to run a department and to do very 15 expensive work for another institution -- in this case 16 the coroner's building -- but Dr. Phillips was also 17 visionary in his approaches and he saw some -- some 18 advantages that could possibly align itself or reflect 19 upon the resources of the hospital to do things that 20 otherwise might not be done. 21 MR. BRIAN GOVER: And Dr. Phillips, by 22 the way, was of course one (1) of your mentors; is that 23 fair? 24 DR. CHARLES SMITH: I -- I hold him in 25 the greatest respect.

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1 MR. BRIAN GOVER: It was Dr. Phillips who 2 named you the Director; is that right, sir? 3 DR. CHARLES SMITH: He -- he named me. I 4 believe that was in discussion with Dr. Young. 5 MR. BRIAN GOVER: And that was in May of 6 1992; is that right, sir? 7 DR. CHARLES SMITH: I believe -- I 8 believe that's right. 9 MR. BRIAN GOVER: And we know that Dr. 10 Young -- and you said in consultation with -- that it was 11 in consultation with Dr. Young that Dr. Phillips named 12 you Director. 13 We know that Dr. Young endorsed your 14 appointment? 15 DR. CHARLES SMITH: That's my 16 understanding. 17 MR. BRIAN GOVER: And Dr. Young was asked 18 about his confidence in endorsing your appointment given 19 your profile in pediatric forensic cases and because of 20 Dr. Phillips' high regard for you and this is on November 21 29th, 2007 at pages 122 and 123 of the evidence -- 22 principally at page 122 starting at line 15, he said this 23 about you, sir. He said: 24 "He was clearly a protege of Dr. 25 Phillips and someone that Dr. Phillips

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1 was bringing along and nurturing." 2 And that was a reasonable view for Dr. 3 Young to hold; is that fair? 4 DR. CHARLES SMITH: I think so. Dr. 5 Phillips and I, though we had different spheres of 6 activity within diagnostic pathology; he was an expert in 7 liver disease; he did not do autopsies; nevertheless, I 8 was very active in assisting and participating in -- in 9 basic research that he was doing and -- and within the 10 department, he would often come to me to seek assistance 11 with special problems and that sort of thing so I -- and 12 I was -- was pleased to be able to, you know, to help him 13 where I could. 14 MR. BRIAN GOVER: Dr. Young continued at 15 line 18: 16 "I have great respect for the Hospital 17 of Sick Children and the -- the medical 18 staff. The fact he's there, he's in a 19 teaching hospital, and he's being 20 mentored by Dr. Phillips who has a 21 worldwide reputation, you know, is 22 highly regarded." 23 And again it was reasonable for Dr. Young 24 to hold those views as well; is that fair? 25 DR. CHARLES SMITH: I -- I don't want to

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1 -- I don't want to sound boastful, but -- but I -- I 2 think that's a reasonable perception. 3 MR. BRIAN GOVER: And the next question 4 will be a little easier because it won't force you to 5 comment on others' view of you, but here's what Dr. Young 6 said starting at line 24: 7 "Dr. Smith was very interested and 8 clearly the most interested of the 9 doctors in continuing to do forensic 10 work." 11 Without in any way asking you to say 12 something that's boastful, that's an accurate statement, 13 isn't it? 14 DR. CHARLES SMITH: We -- we all had 15 interests in the forensic autopsy but they would be -- 16 they would be expressed differently; Dr. Cutz in SIDS and 17 lung disease, Dr. Wilson in the role of heart disease in 18 sudden death, that sort of thing. 19 I think I had the broadest interest, but I 20 certainly would not pretend that my interest was 21 necessarily any stronger than my colleagues but it was 22 different and it would have aligned itself more with what 23 Dr. Young was -- was interested in seeing happen. 24 MR. BRIAN GOVER: Fair enough. And is it 25 fair to say that you were supportive of the idea of a

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1 specialized pediatric forensic pathology unit to assist 2 the Coroner's Office? 3 DR. CHARLES SMITH: Yes, I thought that 4 was -- that was Dr. Phillips' idea and -- and I thought 5 it was good. 6 MR. BRIAN GOVER: And one (1) of the 7 concerns at the time was the quality of pediatric 8 autopsies being performed across the province; is that 9 right? 10 DR. CHARLES SMITH: I had that concern, 11 and my -- and my colleagues, I believe, shared that 12 concern as we discussed it, yes. 13 MR. BRIAN GOVER: That quality was highly 14 variable; isn't that right? 15 DR. CHARLES SMITH: It was, yes. 16 MR. BRIAN GOVER: And Dr. Cairns has 17 given testimony to that effect, and I'll read you a 18 portion and ask you if you agree with it, sir. This was 19 November 29th, 2007, pages 46 to 47. Actually I'll start 20 at page 47, line 4; commenting about -- about the way 21 cases were assigned -- these pediatric cases prior to 22 creation of the Ontario Pediatric Forensic Pathology 23 Unit. Dr. Cairns said: 24 "They were not streamed at all. They 25 basically, and I can remember this --

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1 and please don't take this in a crude 2 way -- but many of the hospital 3 pathologists -- people who would be 4 working in community hospitals -- 5 although they didn't like to see a baby 6 die, they were quite happy to do the 7 autopsy because I mean, it took a 8 quarter of the time to do as it would 9 with an adult because of the size which 10 was entirely the opposite as to what it 11 should have been." 12 Was that a -- is that a reasonable 13 statement, a fair statement for Dr. Cairns to have made 14 about the fact that cases weren't streamed -- 15 DR. CHARLES SMITH: Yeah. 16 MR. BRIAN GOVER: -- and that they were 17 being conducted -- 18 DR. CHARLES SMITH: Yeah. 19 MR. BRIAN GOVER: -- at community 20 hospitals? 21 DR. CHARLES SMITH: I -- I think that's 22 a reflection of, you know, of the standard of practice of 23 the pediatric autopsy at that time, not just the forensic 24 autopsy. 25 Pathologists -- the pathology residency

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1 programs did not necessarily expose a pathologist to -- 2 to training in pediatrics. And -- and so that -- that 3 often was the viewpoint whereas, in fact, the reality is 4 -- is a pediatric autopsy, in my experience, and -- and 5 many people's experiences -- I've discussed it with them, 6 in fact -- is much more time consuming than an adult one 7 so I think that reflects on the -- the thoroughness of -- 8 of what was occurring in some places but I don't want to 9 sound critical of -- of my colleagues. I think that 10 reflected the -- the state of the art or the standard of 11 practice at that time. 12 MR. BRIAN GOVER: Fair enough. And you 13 agree with me, Dr. Smith, that the pediatric autopsy 14 requires skill that is developed through doing a high 15 volume of this type of case? 16 DR. CHARLES SMITH: Well, in -- in many 17 aspects of medicine, expertise in ongoing diagnostic 18 acumen requires a certain volume. We've known that for 19 years in many areas from surgery and such. More 20 recently, there is research in pathology that suggests 21 that, and the first paper that points to that in 22 pediatric pathology is, in fact, one that I co-authored 23 with -- with others. 24 It -- it says yes, experience -- a level 25 of experience and ongoing level of case volumes are

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1 important indicators to -- or -- or important factors in 2 diagnostic accuracy in -- in pediatric pathology. 3 MR. BRIAN GOVER: Do you agree with me 4 that the decision made by The Hospital for Sick Children 5 and the Office of the Chief Coroner to address this issue 6 of variable quality in pediatric autopsies, was a -- a 7 really good decision. Is that fair? 8 DR. CHARLES SMITH: I -- I believe it was 9 a decision that was what -- what some of my colleagues 10 used to refer to as, What's best for the people of 11 Ontario, or what's best for the children of Ontario. And 12 so, that's how I would reflect it. 13 MR. BRIAN GOVER: And I think you've 14 pretty much encompassed the answer to the next question 15 with the one you've given. Creation of the unit not only 16 helped to better fund the hospital for the service it was 17 providing to the Coroner's office, but it also provided 18 the Office of the Chief Coroner with expertise that it 19 did not have elsewhere. 20 DR. CHARLES SMITH: Yes, that was part of 21 the rationale. 22 MR. BRIAN GOVER: And it was a fair 23 expectation for the Chief Coroner and the Office of the 24 Chief Coroner, that the unit would provide quality 25 service.

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1 DR. CHARLES SMITH: Yes. 2 MR. BRIAN GOVER: It was a fair 3 expectation that the level of quality provided would be 4 the equivalent to the quality that one otherwise expects 5 from The Hospital for Sick Children. 6 DR. CHARLES SMITH: That would be our 7 aspiration, yes. 8 MR. BRIAN GOVER: And when you took on 9 the role as Director, it was always your intention to 10 provide quality service to the Office of the Chief 11 Coroner. 12 DR. CHARLES SMITH: Absolutely. 13 MR. BRIAN GOVER: And you certainly 14 wanted to do a good job yourself for the Chief Coroner 15 and the Office. 16 Is that fair? 17 DR. CHARLES SMITH: And -- and I bore the 18 implaimus (phonetic) or the imprint of The Hospital for 19 Sick Children, and I didn't take my association with the 20 hospital lightly at all. 21 MR. BRIAN GOVER: You admired the work 22 that both Dr. Cairns and Dr. Young were doing. Isn't 23 that right? 24 DR. CHARLES SMITH: There were -- there 25 were refreshing breezes that were blowing through the

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1 Office of the Chief Coroner, and I was glad for them. 2 MR. BRIAN GOVER: These were dedicated 3 public servants. Isn't that right? 4 DR. CHARLES SMITH: That's how I regarded 5 them, yes. 6 MR. BRIAN GOVER: And you felt confident 7 that you could provide quality pediatric forensic 8 service? 9 DR. CHARLES SMITH: My colleagues and I, 10 yes. It's not -- it's not me. Please understand that. 11 MR. BRIAN GOVER: Right. And -- and I'll 12 come to that. In fact, you felt confident in The 13 Hospital for Sick Children and the resources available to 14 you, which included consultations with colleagues, access 15 to ancillary testing, state-of-the-art facilities, and so 16 on. 17 DR. CHARLES SMITH: There were things 18 that we could do that were not simply diagnostic. There 19 were many things that we could do that affected other 20 children, born or unborn. The identification of subtle 21 genetic diseases that would be valuable information to a 22 family that they might not otherwise have. 23 And we had also things like access to 24 rapid diagnosis that would be significant in other 25 things, like the ability to rule in or rule out a

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1 meningitis; a specific bacterium in meningitis that may 2 have tremendous implications for children in a daycare or 3 a school, or a school bus or a -- or a neighbourhood that 4 may have been exposed to a child who died suddenly and 5 unexpectedly. 6 So there was -- it wasn't just diagnosis 7 that -- that a -- that the unit offered, but it was also 8 -- it was also doing things that could -- that could help 9 or protect the living as well. 10 MR. BRIAN GOVER: And Dr. Smith, you 11 never advised Dr. Young that you weren't competent for 12 the role of Director? Is that fair? 13 DR. CHARLES SMITH: I didn't see that I 14 was not competent for that role. 15 MR. BRIAN GOVER: And until January 2001, 16 you never asked Dr. Young -- or pardon me, you never 17 advised Dr. Young that you felt you shouldn't be 18 conducting medicolegal autopsies in pediatric cases. 19 Is that fair? 20 DR. CHARLES SMITH: That's correct. 21 MR. BRIAN GOVER: And during your entire 22 tenure as Director, you were a salaried staff member at 23 The Hospital for Sick Children. 24 DR. CHARLES SMITH: I was, yes. 25 MR. BRIAN GOVER: With an appointment at

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1 the University of Toronto? 2 DR. CHARLES SMITH: That�s correct. 3 MR. BRIAN GOVER: The -- the Office of 4 the Chief Coroner was never your employer. Is that 5 right? 6 DR. CHARLES SMITH: No, no, it wasn't, 7 no, no, it wasn't. 8 MR. BRIAN GOVER: And there was nothing 9 in the transfer agreement that required the hospital to 10 apply any of the transfer payments to fund your salary, 11 is that fair? 12 DR. CHARLES SMITH: That -- that was done 13 very, very purposefully, yes. So the -- it was important 14 that all of the pathologists felt that the monies should 15 not be directed towards pathologist's salaries because 16 several reasons, one (1) of which was that the money was 17 soft, that, you know, there was no recognition that, you 18 know, that the money -- we would get the money next year. 19 MR. BRIAN GOVER: Mm-hm. 20 DR. CHARLES SMITH: And yet we could 21 still be obligated to do the work. So that would be 22 putting a pathologist in a difficult position where, you 23 know, if the money disappeared and the pathologist 24 disappears, yet the work goes on. So that was part of 25 the -- part of the reasoning to protect the pathologists.

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  1                 MR. BRIAN GOVER:   And this might be an
  2  appropriate time, Mr. Commissioner.  Thank you.  
  3                 COMMISSIONER STEPHEN GOUDGE:   Thanks, Mr.
  4  Gover. 
  5                 MR. BRIAN GOVER:   I have some more
  6  questions in the afternoon.
  7                 COMMISSIONER STEPHEN GOUDGE:   Yes.  We
  8  will rise now until two o'clock.
  9  
 10  --- Upon recessing at 12:45 p.m.
 11  --- Upon commencing at 2:02 p.m.
 12  
 13                 THE REGISTRAR:   All rise.  Please be
 14  seated.
 15                 COMMISSIONER STEPHEN GOUDGE:   Mr.
 16  Gover...?
 17  
 18  CONTINUED BY MR. BRIAN GOVER:
 19                 MR. BRIAN GOVER:   Thank you,
 20  Commissioner.
 21                 Dr. Smith, I'd like to return briefly to
 22  your comment about Dr. Cairns' evidence about the way
 23  pediatric autopsies were performed across the province
 24  prior to the creation of the Ontario Pediatric Forensic
 25  Pathology Unit.

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1 And you'll recall that I took you to a 2 portion of the transcript, or I referred to it, rather. 3 DR. CHARLES SMITH: Yes. 4 MR. BRIAN GOVER: This was November 29th, 5 2007, page 46 to 47, and really page 47, starting at line 6 4, where Dr. Cairns said about whether cases were 7 streamed, or sent to particular pathologists. 8 He'd said, and I quote: 9 "They were not streamed at all. They 10 basically -- and I can remember this -- 11 and please don't take this in an a 12 crude way, but many of the hospital 13 pathologists that would -- people who'd 14 be working in community hospitals -- 15 although they didn't like to see a baby 16 die, they were quite happy to do the 17 autopsy, and so on." 18 And in the course of answering, you said 19 that that was a reflection of the standard of practice at 20 the time. 21 Do you recall that, Dr. Smith? 22 DR. CHARLES SMITH: Yeah. In community 23 hospitals, yes. Mm-hm. 24 MR. BRIAN GOVER: And that -- and that's 25 what I wanted to clarify. That was the standard of

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1 practice in community hospitals -- it goes without saying 2 then -- outside the practice of the Hospital for Sick 3 Children? 4 DR. CHARLES SMITH: I -- I -- yes, but I 5 would also want to be very quick to point out that 6 Children's Hospital of Eastern Ontario was involved in 7 the process. 8 And I appreciated the opportunity to read 9 their autopsy reports, because they were very 10 informative, very educational for me. 11 And -- and there were others as well. 12 You've -- you've met Dr. Chitra Rao? 13 MR. BRIAN GOVER: Yes. 14 DR. CHARLES SMITH: And there have been 15 pediatric pathologists in London, Ontario, who -- who 16 certainly I appreciated reading their reports for their - 17 - their educational value. 18 So I -- I don't want to pretend or mislead 19 you to think that Sick Kids was -- was a solitary beacon 20 here. There was some very good work done, which -- which 21 I found to be illuminating. 22 MR. BRIAN GOVER: Thank you for that 23 clarification. And this was -- this effort to stream 24 cases, this occurred under the watch of Dr. Young and Dr. 25 Cairns.

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1 Is that right? 2 DR. CHARLES SMITH: Yes. Yes. 3 MR. BRIAN GOVER: Now, aside from the 4 transfer money that went to the Hospital for Sick 5 Children from the Ministry, you were engaged by the 6 Office of the Chief Coroner on a case-by-case basis. 7 Is that fair? 8 DR. CHARLES SMITH: That's correct. 9 That's correct. 10 MR. BRIAN GOVER: And the Office of the 11 Chief Coroner did not set the autopsy schedule at the 12 Ontario Pediatric Forensic Pathology Unit? 13 DR. CHARLES SMITH: No, no. 14 MR. BRIAN GOVER: And you, as Director, 15 set your own schedule for autopsies? 16 DR. CHARLES SMITH: Well I'm -- I'm not 17 sure I necessarily set it. The -- the schedule had to 18 cover all aspects of work in the department. 19 One (1) person was assigned that task. In 20 later years it was Dr. Thorner. And -- but we all 21 understood, you know, sort of the -- the approximate 22 workload breakdown or distribution that we had. 23 Dr. Thorner would -- would make a schedule 24 -- a proposed schedule. We would then, you know, 25 consider it in light of our own -- of our own time

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1 demands or conferences, that sort of thing. And then -- 2 and then whatever final tuning was done was done usually 3 by him, as I recall. 4 So I didn't -- I didn't set the schedule, 5 you know, necessarily on a week-by-week basis for the -- 6 the coroner's cases, but rather it was done as part of 7 the overall operation of the department. 8 MR. BRIAN GOVER: Thank you for 9 clarifying that. 10 Doctor, the Office of the Chief Coroner 11 could not impact your position as a staff pathologist at 12 the Hospital for Sick Children in any manner, could it? 13 DR. CHARLES SMITH: That's correct. 14 MR. BRIAN GOVER: And once you received a 15 warrant for post-mortem examination, you were accountable 16 only to the extent that you had to provide a report. 17 Is that fair? 18 DR. CHARLES SMITH: Yes. Yes. The -- as 19 -- as we understood it, the warrant obligated us to -- to 20 carry out that examination although, obviously, from time 21 to time there would be things that went on in the 22 department. 23 And so if Dr. Silver got a warrant and she 24 was uncomfortable with it, she would speak to me. And 25 then I would simply phone over to the Coroner's Building

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1 and say, You know, there's a change, I'm going to do 2 this. We've -- you know, I'm going to do her work; 3 she'll do mine today. 4 MR. BRIAN GOVER: I see. Now, we've 5 discussed Dr. Young's and Dr. Cairns' view of you as they 6 came to know you, and I appreciate that you don't want to 7 be boastful and you're understandably uncomfortable with 8 having the word "icon" attached to you. 9 But is it fair to say that by the time you 10 were appointed Director of the Unit, you had already 11 established yourself as a leader in pediatric forensic 12 pathology in Ontario? Is that fair? 13 DR. CHARLES SMITH: I was one of the 14 persons who -- who was seriously engaged in it, perhaps 15 with a greater volume than others. But others had very 16 serious -- or themselves were very seriously invested in 17 it, such as Dr. Carpenter or Dr. Rao. 18 MR. BRIAN GOVER: And you were, I suggest 19 -- and I won't use the word "icon" -- but you were the 20 go-to guy for pediatric cases. Is that fair? 21 DR. CHARLES SMITH: In -- in -- in many 22 time -- in many instances, yes. 23 MR. BRIAN GOVER: So you won't disagree 24 with me when I say that Dr. Cairns' characterization of 25 you -- and this is a further characterization, November

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1 26th, page 29 -- where he says: 2 "He was an excellent lecturer, a very 3 dedicated -- very dedicated to child 4 death investigation. I had nothing but 5 the highest of compliments to pay him." 6 That was -- in the context of Dr. Cairns 7 coming to know you and appreciate your work and the 8 contribution you could make to the Office of the Chief 9 Coroner, that was a reasonable view for him to hold? 10 DR. CHARLES SMITH: That -- that's his 11 view, yes. I -- he would have reached it through his -- 12 for his own reasons. But, yes. 13 MR. BRIAN GOVER: And as the 1990s 14 progressed and you lectured more and you did more cases, 15 it's reasonable to conclude your stature in pediatric 16 forensic pathology grew. Is that fair, sir? 17 DR. CHARLES SMITH: Yes. 18 MR. BRIAN GOVER: And you've agreed with 19 me that you were, in a sense, the go-to guy. 20 I'll -- I'll read you a portion of Dr. 21 Chiasson's evidence, describing you in 1996. And I'll 22 ask you at the conclusion if that was a -- a reasonable 23 view to hold of you on the part of Dr. Chiasson. 24 And this can be found in Dr. Chiasson's 25 evidence, December 7th, 2007, at page 74. The question

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1 asked by Ms. Rothstein: 2 "Dr. Chiasson, what does that tell us 3 about the stature of Dr. Smith, at 4 least in the area of child homicide 5 back in 1996?" 6 Dr. Chiasson, at line 8: 7 "Well, Charles was the -- the go-to 8 guy, as far as child abuse and 9 homicides. He did the -- the -- had 10 the greatest experience, and really, I 11 don't know that there was anybody else 12 in the province that -- that I would 13 have approached, you know, as an 14 alternative. 15 I -- I take it that -- that Dr. Rao, 16 Dr. Chitra Rao in Hamilton was, in 17 fact, doing a fair amount of pediatric 18 pathology, including child abuse cases, 19 so she would have been the second 20 choice, I think, for this. But 21 certainly at the time, certainly 22 Charles was indent -- the identified 23 individual within the Coroner's System 24 in this area of expertise." 25 And -- and again, Doctor, that was a

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1 reasonable view for Dr. Chiasson to hold of you in 1996. 2 Is that fair? 3 DR. CHARLES SMITH: Yes. 4 MR. BRIAN GOVER: And Dr. Smith, you -- 5 it's fair to say you strived to be the best you could in 6 your field. Is that right? 7 DR. CHARLES SMITH: Yes. 8 MR. BRIAN GOVER: And the Office of the 9 Chief Coroner looked to you for expert advice in complex 10 cases, is that fair? 11 DR. CHARLES SMITH: I -- I was often 12 given the -- the tough cases, yes. 13 MR. BRIAN GOVER: And those are the tough 14 cases within a tough field -- pediatric forensic 15 pathology. Is that right, sir? 16 DR. CHARLES SMITH: Yes. 17 MR. BRIAN GOVER: And that was the Office 18 of the Chief Coroner's attempt to ensure quality in 19 pediatric forensic pathology cases. Is that fair? 20 DR. CHARLES SMITH: If -- if they -- if 21 they've used that term, I -- I would accept it. 22 MR. BRIAN GOVER: Certainly, this attempt 23 at quality assurance in pediatric forensic pathology 24 cases wasn't something that, to your knowledge, had 25 happened before it was initiated by Doctors Young and

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1 Cairns. Is that fair? 2 DR. CHARLES SMITH: That's correct, and - 3 - and Dr. Chiasson. I mean, I don't want to exclude him 4 in that process as well. 5 MR. BRIAN GOVER: Thank you for that. 6 When you were asked to review a case or 7 conduct a second autopsy, that was a manifestation of the 8 Office of the Chief Coroner's attempt to provide quality 9 assurance. Is that fair? 10 DR. CHARLES SMITH: Yes, yes. 11 MR. BRIAN GOVER: And you'd agree with me 12 that there was no one else in the province who had the 13 same focus -- pediatric forensic pathology -- as you? 14 DR. CHARLES SMITH: That's correct. 15 MR. BRIAN GOVER: As such, you were the 16 Office of the Chief Coroner's best available consultant? 17 DR. CHARLES SMITH: I was available as 18 much as -- as I could possibly make myself, yes. But -- 19 but the word "best" is -- would suggest that -- that I 20 had a knowledge, diagnosed -- diagnostic acumen that's 21 greater than others. And I -- I do respect the -- the 22 names that we've mentioned. 23 MR. BRIAN GOVER: Yes, and -- and again, 24 you don't want to be boastful. Is that fair, Dr. Smith? 25 I -- I don't want to put you in an awkward position here.

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1 DR. CHARLES SMITH: I -- I want to -- I 2 want to make sure that, you know, that you understand 3 that there was, you know there were very good people who 4 were struggling with difficult cases in Ontario. 5 MR. BRIAN GOVER: Fair enough. 6 And Doctor, you agree that when problems 7 relating to the timeliness of your reports arose, the 8 Office of the Chief Coroner had few options. Is that 9 fair? 10 DR. CHARLES SMITH: Yes, I recognize 11 that. 12 MR. BRIAN GOVER: It could not have done 13 anything to force you to complete a report, could it? 14 DR. CHARLES SMITH: I can't -- I can't 15 think of it, apart from, sort of, making an appeal to the 16 pathologist and Chief. 17 MR. BRIAN GOVER: Yes. And -- and 18 Doctor, refusing to send you cases or refusing to send 19 cases to the unit would have denied the Office of the 20 Chief Coroner the benefit of a much needed resource. Is 21 that fair? 22 DR. CHARLES SMITH: I can accept that. 23 MR. BRIAN GOVER: Now, in terms of 24 quality assurance by the Office of the Chief Coroner, 25 before lunch we covered your interaction with Dr.

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1 Hillsdon-Smith. 2 And it's clear that Dr. Hillsdon-Smith had 3 no role in reviewing your work. Is that right, sir? 4 DR. CHARLES SMITH: That's the best of my 5 knowledge. 6 MR. BRIAN GOVER: And Dr. Chiasson was 7 junior to you. Is that right? 8 DR. CHARLES SMITH: Well I've seen him 9 describe himself that way. He was, you know, junior in 10 terms of several years and -- and I had finished my 11 residency some years before him. But I certainly, even 12 when he was a resident, recognized his -- his skills and 13 his insight. 14 And so though I have done more of the work 15 that I've done, I certainly respect the work that he -- 16 he did. I respected it at Sick Kids as I interacted with 17 him from time to time, when he was a cardiac pathologist. 18 He certainly had much more experience in adult cardiac 19 pathology that I could ever imagine having. 20 And -- and then at the Office of the Chief 21 Coroner, of course, he was in a different role, so I 22 think we respected each other's strengths and recognized 23 that, you know, each of us had areas that the other -- 24 each of us lacked expertise in areas that the other had. 25 MR. BRIAN GOVER: And I respect the care

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1 that you took in answering that question, Dr. Smith. 2 But it's fair to say that Dr. Chiasson did 3 not have the same level of experience in pediatric cases 4 as you did? 5 DR. CHARLES SMITH: No, I -- I'd seen 6 many, many more. And obviously have had the opportunity 7 over the years to read much more literature than he would 8 have. And also interacted with my colleagues, doing that 9 work much more than, you know, than he could have, even 10 when rounds began. 11 MR. BRIAN GOVER: Right. You were more 12 expert than Dr. Chiasson with respect to pediatric 13 pathology? 14 DR. CHARLES SMITH: Yes. 15 MR. BRIAN GOVER: And you never sought 16 out Dr. Chiasson in complex forensic cases. Is that 17 right? 18 DR. CHARLES SMITH: Not really, no. The 19 -- the rounds -- the -- the rounds that we had were -- 20 were the environment in which, you know, in which I would 21 -- I would heed his advice. 22 And there are times, for instance, when, 23 you know, I would be presenting a case, and say I'm not 24 sure how to word -- word this. Or, you know, in a case 25 like multiple traumatic injuries, he was the one who

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1 addressed for me the issue as to whether you try and 2 identify an individual injury or you put them all 3 together and that sort of thing. 4 Some of the -- kind of the philosophic 5 issues that Dr. Pollanen spoke to. And, so I certainly 6 looked to Dr. Chiasson for advice and counsel in -- in 7 those areas. 8 But -- but in terms of actually walking a 9 set of slides over to him, you know, before I'd finish my 10 report, I -- I don't think I did that. But I certainly 11 was -- was quite happy to walk the slides over after my 12 report was done and -- and have him check my work. 13 MR. BRIAN GOVER: Right. And the rounds, 14 of course, were another example of a move toward quality 15 assurance -- 16 DR. CHARLES SMITH: Yes. 17 MR. BRIAN GOVER: -- by the Office of the 18 Chief Coroner -- 19 DR. CHARLES SMITH: Yeah. 20 MR. BRIAN GOVER: -- is that right? 21 DR. CHARLES SMITH: Yeah. Quality -- you 22 know, precision diagnosis in any individual case, 23 education, and quality assurance. 24 MR. BRIAN GOVER: But when we speak about 25 seeking assistance, actively seeking assistance in a

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1 complex case, for example, you didn't seek Dr. Chiasson's 2 assistance in the Sharon case. 3 DR. CHARLES SMITH: No, I didn't. No. 4 MR. BRIAN GOVER: And I need to take you 5 to a document, Dr. Smith, and you'll find this at Volume 6 I, Tab 3. And this is PFP � 7 DR. CHARLES SMITH: Commission counsel, 8 or -- oh, parties withstanding? 9 MR. BRIAN GOVER: Commission counsel, I'm 10 informed. 11 DR. CHARLES SMITH: Okay. Volume I? I'm 12 sorry. 13 MR. BRIAN GOVER: Volume I, Tab 3, and 14 this ought to be PFP148654. 15 DR. CHARLES SMITH: No, I do have the 16 wrong volume here. 17 MS. LUISA RITACCA: It has multiple PFP 18 numbers, so you're -- 19 COMMISSIONER STEPHEN GOUDGE: So if we 20 go � 21 DR. CHARLES SMITH: I'm sorry. 22 23 CONTINUED BY MR. BRIAN GOVER: 24 MR. BRIAN GOVER: Oh, it'll be -- it'll 25 be -- let me describe it more generically as a letter

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1 dated -- 2 DR. CHARLES SMITH: May 4th, 1992? 3 MR. BRIAN GOVER: May 4th, 1992. 4 DR. CHARLES SMITH: Yes, okay. I'm 5 sorry, yes. Yeah. I -- I have the letter, though the P 6 number does -- it's got two (2) P numbers. Yes, I see. 7 COMMISSIONER STEPHEN GOUDGE: What was 8 the first one you gave, 146272? Anyway, we have got the 9 letter. Do not worry about it. 10 MR. BRIAN GOVER: You've got the letter? 11 COMMISSIONER STEPHEN GOUDGE: Yes. 12 13 CONTINUED BY MR. BRIAN GOVER: 14 MR. BRIAN GOVER: This ought to be the -- 15 the May 1992 letter. 16 COMMISSIONER STEPHEN GOUDGE: Yes, got 17 it. 18 19 CONTINUED BY MR. BRIAN GOVER: 20 MR. BRIAN GOVER: All right. And -- 21 COMMISSIONER STEPHEN GOUDGE: What I have 22 is 302673. 23 MS. LINDA ROTHSTEIN: Right. 24 MR. BRIAN GOVER: Can I have it? 25 COMMISSIONER STEPHEN GOUDGE: 673. Try

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1 that. How is that, Mr. Gover? Is that the one you want? 2 3 CONTINUED BY MR. BRIAN GOVER: 4 MR. BRIAN GOVER: That is looking like 5 the one I want. Thank you, Mr. Commissioner. And thank 6 you, Ms. Rothstein. 7 Now yesterday, Ms. Silver took you to your 8 response to the College of Physicians -- 9 DR. CHARLES SMITH: Mm-hm. 10 MR. BRIAN GOVER: -- and Surgeons of 11 Ontario, and that's -- that's this document -- 12 DR. CHARLES SMITH: Yes. 13 MR. BRIAN GOVER: -- is that right, sir? 14 DR. CHARLES SMITH: Yes. 15 MR. BRIAN GOVER: And she took you to a 16 portion at page 2, where you said: 17 "Dr. Young has an excellent knowledge 18 of the issues and problems in the 19 case." 20 DR. CHARLES SMITH: In the Amber case, 21 yes. 22 MR. BRIAN GOVER: Yes. 23 DR. CHARLES SMITH: Mm-hm. 24 MR. BRIAN GOVER: And she suggested that 25 in making this statement you were referring to Dr.

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1 Young's supposed awareness that there had been a number 2 of experts who had testified for the defence who had not 3 agreed with your evidence. 4 Do you recall that suggestion being made 5 by her? 6 DR. CHARLES SMITH: Yes. 7 MR. BRIAN GOVER: And you said that you 8 were not sure that that is what the statement necessarily 9 meant? 10 DR. CHARLES SMITH: Mm-hm. 11 MR. BRIAN GOVER: You recall that, sir? 12 DR. CHARLES SMITH: Yes. 13 MR. BRIAN GOVER: And you pointed out 14 that Dr. Young had been involved in the Amber case 15 shortly after her death, when he was the Deputy Chief 16 Coroner. 17 DR. CHARLES SMITH: I think he actually 18 may have even been Regional Coroner at -- for Toronto at 19 that time. But -- but certainly he was Deputy Chief 20 Coroner aft -- soon afterwards, if not when it occurred. 21 MR. BRIAN GOVER: Thank you. And the two 22 (2) of you travelled together to Timmins. Is that 23 correct? 24 DR. CHARLES SMITH: That's correct. 25 MR. BRIAN GOVER: And you met with the

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1 police and Amber's parents? 2 DR. CHARLES SMITH: And -- and Mr. Ralph 3 Carr (Phonetic), Amber's parents' legal counsel, yes. 4 MR. BRIAN GOVER: And as well, Dr. Young 5 was involved in the process that led to the Attorney 6 General's warrant for exhumation. Is that right? 7 DR. CHARLES SMITH: Yes. 8 MR. BRIAN GOVER: So in that sense, Dr. 9 Young had an excellent knowledge of the issues and 10 problems in the case. Is that right, Dr. Smith? 11 DR. CHARLES SMITH: Yes. 12 MR. BRIAN GOVER: When you say that you 13 discussed Justice Dunn's decision with Dr. Young -- 14 DR. CHARLES SMITH: Mm-hm. 15 MR. BRIAN GOVER: -- you're referring to 16 the fact that Justice Dunn acquitted SM. 17 Is that right, sir? 18 DR. CHARLES SMITH: Yes. 19 MR. BRIAN GOVER: And, Dr. Smith, you 20 have not recollection of ever reviewing Justice Dunn's 21 written decision with either Dr. Young or Dr. Cairns. 22 Isn't that right? 23 DR. CHARLES SMITH: That's correct. 24 MR. BRIAN GOVER: And you've already told 25 us what you told others about your conversation with

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1 Justice Dunn. Is that correct? 2 DR. CHARLES SMITH: Yes. Yes. 3 MR. BRIAN GOVER: And that was a -- you 4 told, for example, Dr. Young and Dr. Cairns about that 5 conversation. Is that right? 6 DR. CHARLES SMITH: Yes. 7 MR. BRIAN GOVER: And you told them, I 8 suggest, about that conversation on more than one (1) 9 occasion. Is that fair? 10 DR. CHARLES SMITH: It could be, if 11 that's their recollection. 12 MR. BRIAN GOVER: And, Dr. Smith, you 13 were asked questions this morning about dogmat -- about 14 giving dogmatic evidence, and you -- you gave a what I 15 thought was a candid response. 16 Let me ask you this: Were you ever made 17 aware of defence counsel ever expressing concern to the 18 Office of the Chief Coroner about dogmatic evidence that 19 you had given? 20 DR. CHARLES SMITH: Never. 21 MR. BRIAN GOVER: Were you ever made 22 aware of the Criminal Lawyers' Association ever 23 expressing concern to the Office of the Chief Coroner 24 about dogmatic evidence that you had given? 25 DR. CHARLES SMITH: Never.

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1 MR. BRIAN GOVER: Were you ever made 2 aware of Crown coun -- Crown counsel expressing concern 3 to the Office of the Chief Coroner about dogmatic 4 evidence you had given? 5 DR. CHARLES SMITH: No, sir. 6 MR. BRIAN GOVER: Now, Dr. Smith, do you 7 agree with me that the cases with which this review is 8 concerned, while serious, and while they've had serious 9 consequences for a number of people, consequences -- 10 DR. CHARLES SMITH: Mm-hm. 11 MR. BRIAN GOVER: -- that I don't want to 12 diminish, nonetheless involved a small subset of your 13 work for the Office of the Chief Coroner? 14 Do you agree with me about that, sir? 15 DR. CHARLES SMITH: Yes, that's correct. 16 MR. BRIAN GOVER: And the number of cases 17 is something like twenty (20) of eight hundred and 18 twenty-eight (828). Is that correct? 19 DR. CHARLES SMITH: No, there'd be more 20 cases than that. 21 MR. BRIAN GOVER: More than that? 22 DR. CHARLES SMITH: Yeah. No, it would - 23 - I think it would be in excess of a thousand (1,000), 24 yeah. 25 MR. BRIAN GOVER: Thank you for that

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1 clarification. 2 And, Dr. Young, in terms -- pardon me, Dr. 3 Smith, in terms of the present day in the Ontario 4 Pediatric Forensic Pathology Unit, you indicate that -- 5 if I could take you to the past first to set it up -- in 6 retrospect you acknowledge that your training in forensic 7 pathology was inadequate. 8 Is that fair, sir? 9 DR. CHARLES SMITH: I -- I use the 10 adjective "woefully," yes. 11 MR. BRIAN GOVER: And I take it that it 12 is now your view that in your role as Director of the 13 Ontario Pediatric Forensic Pathology Unit, you should 14 have had knowledge of forensic issues? 15 That goes without saying, does it, sir? 16 DR. CHARLES SMITH: Yes. Yes. 17 MR. BRIAN GOVER: And it's fair to say 18 that you'd agree, then, that on a going-forward basis the 19 Director of the Ontario Pediatric Forensic Pathology Unit 20 should be forensically trained? 21 DR. CHARLES SMITH: I -- I think that's 22 best -- best left for the Commission to -- to address in 23 terms of the principle, how it's executed in terms of 24 single leadership or shared leadership or anything like 25 that. I -- I don't, you know, there -- I can see

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1 possibilities, but I certainly wouldn't want to recommend 2 it. 3 But the important thing is -- is there is, 4 as I would see it, going forward there must be 5 significant, significant knowledge and insight and 6 understanding and expertise brought to that role. 7 However -- however it's best done, I don't 8 want to suggest, but -- but the role needs it, yes. 9 MR. BRIAN GOVER: Fair enough. And -- 10 and the qualities that you've described though are 11 embodied in Dr. Chiasson. Is that fair? 12 DR. CHARLES SMITH: Yes. Yes, very much 13 so. 14 MR. BRIAN GOVER: And as you predicted in 15 the interview with Ms. O'Hara, Dr. Michael Pollanen has 16 now returned to Ontario and is running the Forensic 17 Pathology Service Unit. Is that correct, sir? 18 DR. CHARLES SMITH: I -- I knew Michael 19 was a rising star when he was a high-school student. I 20 mean at that time, I don't think he had any interest in 21 forensic pathology, and I certainly never perceived he 22 did. He was interested in neuropathology. 23 But from the point he was a high-school 24 student, he was clearly a rising star. 25 MR. BRIAN GOVER: And it comes as no

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1 surprise to you today to know that he's the Chief 2 Forensic Pathologist for the province. 3 DR. CHARLES SMITH: I -- I expected that 4 to occur. My -- my anticipation of that began many years 5 ago. 6 MR. BRIAN GOVER: And at the beginning of 7 my questions, Dr. Smith, I said that we would trace an 8 evolution over the period 1981 and on. And really we've 9 gone through 1981, 1991, through the 1990s and I'll 10 suggest up to 2001. 11 And do you agree with me, sir, that over 12 that period, those two (2) decades in which you performed 13 medicolegal autopsies for the Office of the Chief 14 Coroner, there was a substantial evolution in the 15 accountability and oversight mechanisms and quality 16 control measures relating to the practice of pediatric 17 forensic pathology in the Province of Ontario? 18 DR. CHARLES SMITH: Yes, there were good 19 changes and there were incremental changes, and there 20 were important changes, yes, yes. Twenty (20) years 21 after I became the Staff Pathologist at Sick Kids, yeah, 22 the -- the environment for pediatric forensic pathology 23 was much different than it was. 24 MR. BRIAN GOVER: And -- and I suggest to 25 you that any review of accountability and oversight

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1 mechanisms and quality control measures applicable to 2 that period has to take into account the change in 3 culture that you and I have canvassed today. 4 Is that -- is that fair, sir? 5 DR. CHARLES SMITH: I think that's 6 reasonable, yes. 7 MR. BRIAN GOVER: Thank you very much, 8 Dr. Smith. Those are my questions. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 10 Gover. Ms. Rothstein...? 11 MS. LINDA ROTHSTEIN: Dr. Smith, I have 12 no further questions for you, sir. 13 DR. CHARLES SMITH: Oh, thank you. 14 MS. LINDA ROTHSTEIN: Commissioner, 15 although it has not been our practice to comment on media 16 reports, I would like to clarify one aspect of the 17 evidence from Jenna's case, which has apparently been 18 misunderstood. 19 There is no evidence that the hair that 20 was removed from Jenna's body at autopsy and retained by 21 Dr. Smith was a pubic hair or that it belonged to the 22 young person who was ultimately held responsible for 23 Jenna's death. 24 The misunderstanding may have arisen from 25 the fact that the hair was found on the pubic area of

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1 this young girl. However, the tests carried out by the 2 Centre of Forensic Services -- Sciences, excuse me -- 3 could not determine from whom it originated or whether it 4 came from that person's upper body or pubic area. 5 Commissioner, that completes our evidence 6 for this week. We will be sitting two (2) days next 7 week. Wednesday, February 6, and Friday, February 8. On 8 Wednesday, February the 6th, Mr. Justice McMahon will be 9 called as a witness. His anticipated evidence has 10 previously been distributed, and the document notice was 11 circulated this morning. His evidence is expected to 12 take one half (1/2) day. 13 On Friday, February 8, four (4) witnesses 14 will testify. First Dr. Young will be recalled, at his 15 request, to address the evidence of Ms. Mann concerning 16 his meeting with her. Her approved interview summary was 17 not available when Dr. Young last appeared. 18 His testimony and examination-in-chief and 19 cross-examination will be confined to that narrow issue, 20 and accordingly, it is expected to be extremely brief. 21 A document notice will be circulated 22 today. 23 The balance of the day will be devoted to 24 three defence counsel, Mr. Gorrell, Mr. Struthers, and 25 Mr. Hillyer. Document notices will be circulated today

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1 for all three of these witnesses. Their anticipated 2 evidence will be distributed when available. Policy 3 roundtables will take place from February 11 through 15, 4 February 19 through 22, and February 28 and 29. 5 February 28 and 29 will take place in 6 Thunder Bay but will be webcast for all parties and 7 members of the public. The panelists and content of 8 those roundtables in Thunder Bay will be finalized next 9 week and distributed to all parties. 10 We are grateful to the continuing input of 11 all parties to inform our roundtables. Several 12 additional panellists have been added. Ms. McAleer will 13 send out an email shortly, setting out the additional 14 panellists. We remind all parties that given the limited 15 opportunity to question panellists, we welcome 16 suggestions for questions for our consideration. 17 A brief outline of the topics to be 18 canvassed during those many roundtables, Commissioner, 19 are as follows: We will have a roundtable on 20 credentialing and growing the pediatric forensic 21 pathology service in Ontario; we will have a roundtable 22 on organizing pediatric forensic pathology in Ontario; 23 one on enhancing the relationship between the coronial 24 service and the pediatric forensic pathology service; the 25 Death Investigation Team in pediatric forensic cases.

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1 On February 13th we will have a roundtable 2 on oversight and accountability; the following day one on 3 the best practices of pediatric forensic pathology in a 4 particular case. 5 We will have a roundtable on effective 6 communication between pediatric forensic pathology and 7 the Criminal Justice System; one on the Crown defence and 8 the Court; followed by one on a viable complaints 9 process; one on pediatric forensic pathology and 10 potential wrongful convictions; pediatric forensic 11 pathology and potential child abuse; and pediatric 12 forensic pathology, the Judicial System and expert 13 forensic pathology evidence. 14 Our roundtables in Thunder Bay will take 15 place and will focus on the service of remote and 16 Aboriginal communities. 17 Commissioner, I have nothing further to 18 add. Unless you have any questions for me, that would 19 complete our work for today as I see it, sir. 20 MR. JULIAN FALCONER: And, Mr. 21 Commissioner, there is one other matter I want to address 22 you on, if I may? 23 COMMISSIONER STEPHEN GOUDGE: What is it, 24 Mr. Falconer? 25 MR. JULIAN FALCONER: What I was going to

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1 ask, I've raised -- 2 COMMISSIONER STEPHEN GOUDGE: You have to 3 go to the mic. 4 MR. JULIAN FALCONER: Thanks. I've 5 raised it with your counsel. Something has come up that 6 post-dated my examination, a document that was included 7 in the data base that I have asked your counsel about. 8 There is some of the information available now about it. 9 Both myself and counsel for the Mullins- 10 Johnson group are simply asking for a fifteen (15) minute 11 break, before Dr. Smith leaves the stand, in order to 12 determine whether, based on the information we've just 13 learned of, we may seek to move before you'd reopen a 14 matter that wouldn't take long, but we -- we would like, 15 at least on behalf of our clients, that opportunity to 16 talk to your counsel. 17 So I am asking for a fifteen (15) minute 18 break in order to -- to permit us to address what is new 19 information for us and, frankly, based on my discussions 20 with your counsel, new information for them as well. 21 COMMISSIONER STEPHEN GOUDGE: All right. 22 I know nothing about this, Mr. Falconer. 23 MR. JULIAN FALCONER: I am trying not to 24 address it on the record. I -- I don't think it's -- 25 it's helpful. I'm trying -- I'm suggesting a break so

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1 that we can have a fruitful discussion and hopefully, 2 call it day. 3 COMMISSIONER STEPHEN GOUDGE: I am very 4 anxious to wind this up. It is a Friday. We have had a 5 long week. I will give you five (5) minutes. 6 7 --- Upon recessing at 2:35 p.m. 8 --- Upon resuming at 2:44 p.m. 9 10 COMMISSIONER STEPHEN GOUDGE: Ms. 11 Rothstein, where are we at? 12 MS. LINDA ROTHSTEIN: Mr. Falconer would 13 like to address you, sir. 14 MR. JULIAN FALCONER: Mr. Commissioner, 15 the document for which notice was provided to the witness 16 hasn't got a sufficient information-base either through, 17 frankly, through your counsel or us as other counsel 18 has -- 19 COMMISSIONER STEPHEN GOUDGE: What do you 20 mean, "a sufficient information-base"? 21 MR. JULIAN FALCONER: We just don't know 22 enough about a case that's come to our attention. So in 23 the circumstances what I'm doing is, along with others, 24 going to make our own inquiries, and we're not going to 25 bring any motion at this time. Thank you.

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1 COMMISSIONER STEPHEN GOUDGE: Thank you. 2 MS. LINDA ROTHSTEIN: So as I was saying, 3 Commissioner, that completes all my remarks unless you 4 have any questions or other issues you want to raise with 5 us. 6 COMMISSIONER STEPHEN GOUDGE: No, that is 7 fine, thank you. 8 MS. LINDA ROTHSTEIN: Thank you. 9 COMMISSIONER STEPHEN GOUDGE: Well, it 10 falls to me, Dr. Smith, it has been a long week for 11 everyone. 12 DR. CHARLES SMITH: I understand. 13 COMMISSIONER STEPHEN GOUDGE: I would 14 like to thank you for coming and for giving your 15 evidence. It is of real assistance to the work of the 16 Commission. 17 DR. CHARLES SMITH: Well, thank you. 18 COMMISSIONER STEPHEN GOUDGE: And for you 19 from out of town and particularly for the others from out 20 of town, I wish you all a safe return. 21 DR. CHARLES SMITH: Thank you. 22 COMMISSIONER STEPHEN GOUDGE: We will 23 rise now until Wednesday at 9:30. 24 25 --- Upon adjourning at 2:45 p.m.

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1 2 3 4 Certified Correct, 5 6 7 8 __________________ 9 Rolanda Lokey, Ms. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25