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 January 28th, 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             )     Dr. Charles Smith
 18  Niels Ortved              )
 19  Erica Baron               )
 20  Grant Hoole          (np) )
 21   
 22  William Carter       (np) )     Hospital for Sick Children
 23  Barbara Walker-Renshaw(np) )
 24  Kate Crawford             )
 25

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

4
  1                 APPEARANCES (cont'd)
  2  Suzan Fraser              )     Defence for Children 
  3                             )     International - Canada
  4  
  5  William Manuel            )     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            )     Surgeons
 13  
 14  Michael Lomer      (np)    )    For Marco Trotta
 15  Jaki Freeman               )
 16  
 17  Emily R. McKernan   (np)   )    Glenn Paul Taylor
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25

1 TABLE OF CONTENTS Page No. 2 3 Charles Smith, Sworn 4 5 Examination-In-Chief by Ms. Jane Langford 8 6 Cross-Examination by Ms. Linda Rothstein 158 7 8 9 Certificate of transcript 231 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:29 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Ms. Rothstein. 7 MS. LINDA ROTHSTEIN: Good morning, 8 Commissioner. Welcome, Dr. Smith. 9 DR. CHARLES SMITH: Thank you. 10 MS. LINDA ROTHSTEIN: Commissioner, as 11 you know, Dr. Smith will be the only witness this week. 12 He will be testifying from today until Friday, February 13 the 1st. 14 The schedule for the week of January 28th 15 will be as follows: 16 Today, counsel for Dr. Smith will examine 17 him from 9:30 until the afternoon break at 3:15. I will 18 then cross-examine Dr. Smith from 3:30 to 4:30 today, and 19 all day Tuesday and Wednesday. Parties with standing 20 will cross-examine Dr. Smith on Thursday and Friday. 21 Commissioner, on November 20th, 2007, you 22 dismissed Dr. Smith's application to be examined first by 23 his own counsel. Your ruling stated that should new 24 circumstances relevant to this issue arise between now 25 and the end of January, Dr. Smith was free to renew his

1 request. 2 Since that ruling, Commission Counsel and 3 counsel for Dr. Smith have discussed, at length, how best 4 to provide a complete evidentiary picture of Dr. Smith's 5 work, and its oversight. 6 These discussions led to Dr. Smith 7 providing a one hundred and eight (108) page statement of 8 evidence, which he will adopt at the commencement of the 9 hearing. 10 In these circumstances, Commission Counsel 11 and Dr. Smith have agreed that it is appropriate for 12 counsel for Dr. Smith, Ms. Langford, to examine Dr. Smith 13 first. 14 We approached you, and you agreed, that 15 this was a sensible and fair approach that did not 16 require a formal motion to amend your Order. 17 Commissioner, this week will undoubtedly 18 be very long for our witness. Out of fairness to him, I 19 ask that you continue to enforce the time limits that 20 have been established for the examinations. 21 I know that we can count on the 22 professionalism of counsel in this room to discharge 23 their duties honourably and in the highest standards of 24 our profession. 25 Commissioner, unless you have any

1 questions, I propose that the witness be sworn in. 2 COMMISSIONER STEPHEN GOUDGE: No, that is 3 fine. Thank you. 4 5 CHARLES RANDALL SMITH, Sworn 6 7 COMMISSIONER STEPHEN GOUDGE: Ms. 8 Langford...? 9 MS. JANE LANGFORD: Good morning, Mr. 10 Commissioner, and thank you for your -- 11 COMMISSIONER STEPHEN GOUDGE: Good 12 morning. 13 MS. JANE LANGFORD: -- ruling. 14 15 EXAMINATION-IN-CHIEF BY MS. JANE LANGFORD: 16 MS. JANE LANGFORD: Dr. Smith, this is 17 the first occasion you have had to speak about your 18 involvement in the twenty (20) cases which were subject 19 of the review conducted by the Office of the Chief 20 Coroner of Ontario and which formed the basis for this 21 Inquiry. 22 Before we begin, do you wish to say 23 anything to this Commission? 24 DR. CHARLES SMITH: Thank you. Yes, if I 25 may, sir.

9
  1                 I would like to confirm and restate the
  2  apology that was read on my behalf at the beginning of
  3  these public hearings by my -- Mr. Ortved.
  4                 Through the review of the Office of the
  5  Chief Coroner and subsequently through the information
  6  which has come out in these public hearings, I have come
  7  to appreciate mistakes that I made, and I am sorry for
  8  them.
  9                 I also recognize that, at times, my
 10  conduct was not professional, and -- and I deeply regret
 11  that.
 12                 I do recognize that many people have
 13  questions for me, and I -- and I will answer and provide
 14  testimony as best I can to help clarify these questions. 
 15  I do accept full responsibility for my -- my work, for my
 16  opinions and for my action.  Thank you.
 17                 MS. JANE LANGFORD:   Dr. Smith, you have
 18  in front of you a bound volume entitled "Evidence of Dr.
 19  Smith"?
 20                 DR. CHARLES SMITH:   I have that, yes.
 21                 MS. JANE LANGFORD:   And is this, to the
 22  best of your knowledge, information and belief, an
 23  accurate record of your involvement in the twenty (20)
 24  cases?
 25                 DR. CHARLES SMITH:   It is, yes.

1 MS. JANE LANGFORD: And is it an accurate 2 reflection of your relationship with both the Hospital 3 for Sick Children and the Office of the Chief Coroner for 4 Ontario? 5 DR. CHARLES SMITH: It is, yes. 6 MS. JANE LANGFORD: And some of your 7 reflections on the issues that are the subject of 8 attention at this Inquiry? 9 DR. CHARLES SMITH: That's correct. 10 MS. JANE LANGFORD: Did you produce this 11 written statement in response to questions asked by 12 Commission counsel? 13 DR. CHARLES SMITH: I did. 14 MS. JANE LANGFORD: Do you adopt this 15 written statement as your evidence at this Inquiry? 16 DR. CHARLES SMITH: I do. 17 MS. JANE LANGFORD: And do you assert the 18 protection of Section 9 of the Public Inquiries Act or 19 this written statement as well as your oral testimony 20 here this week? 21 DR. CHARLES SMITH: I do. 22 MS. JANE LANGFORD: Now, Dr. Smith, we 23 will not have time to go through all of your evidence 24 contained in your written statement, but I'm going to ask 25 you some questions to highlight some of its contents

1 beginning with your medical training and education. 2 You attended one (1) year of undergraduate 3 science and then were accepted into medical school at the 4 University of Saskatchewan from which you graduated in 5 1975? 6 DR. CHARLES SMITH: That's correct. 7 MS. JANE LANGFORD: Dr. Smith, what, if 8 any, training did you receive in pathology while at 9 medical school? 10 DR. CHARLES SMITH: Our pathology was a 11 single course that would be described as classic 12 pathology. It consisted of lectures and labs that dealt 13 with mechanisms of disease and the gross and microscopic 14 appearances of disease. 15 MS. JANE LANGFORD: And did pediatric 16 pathology receive any attention during that one (1) 17 course? 18 DR. CHARLES SMITH: It would have 19 received a little. There was some teaching on subjects 20 like cystic fibrosis or lung disease in the newborns. 21 MS. JANE LANGFORD: What about forensic 22 pathology? Was that the subject of any teaching in your 23 course? 24 DR. CHARLES SMITH: No. 25 MS. JANE LANGFORD: And after you

1 completed your medical degree, you did a four (4) year 2 residency in pathology? 3 DR. CHARLES SMITH: That's correct. 4 MS. JANE LANGFORD: You spent your first 5 two (2) years at the University of Saskatchewan? 6 DR. CHARLES SMITH: That's correct. 7 MS. JANE LANGFORD: And I understand the 8 first year of your residency was dedicated to autopsy 9 pathology? 10 DR. CHARLES SMITH: Autopsy pathology 11 alone, yes. 12 MS. JANE LANGFORD: How many autopsies 13 would you have assisted with or performed in your first 14 year of residency? 15 DR. CHARLES SMITH: I can't give you an 16 exact number. I'm sure that is was a hundred (100). I 17 don't think is was as many as a hundred and fifty (150), 18 but it was probably in that range somewhere. 19 MS. JANE LANGFORD: And did you perform 20 the autopsy yourself or watch a staff pathologist perform 21 the autopsy? 22 DR. CHARLES SMITH: With the exception of 23 -- of one (1) case, I -- I performed them all myself. 24 MS. JANE LANGFORD: And when I say 25 "autopsy", I'm referring to the gross or macro-

1 examination and the tissue dissection, is that correct? 2 DR. CHARLES SMITH: That's what I was 3 referring to, yes. 4 MS. JANE LANGFORD: So that you would do 5 largely on your own. 6 DR. CHARLES SMITH: Yes. 7 MS. JANE LANGFORD: Would there be a 8 supervising pathologist present for the autopsies that 9 you performed? 10 DR. CHARLES SMITH: Not in the majority 11 of cases. In the very beginning there was a staff 12 pathologist who taught me basic autopsy techniques, and 13 then after that, supervision would be dependent on the 14 staff pathologist and the type of case, but in the vast 15 majority of instances, there was not a staff pathologist 16 in the room. 17 MS. JANE LANGFORD: What about the micro- 18 examination or the histology, would you do that on your 19 own without supervision? 20 DR. CHARLES SMITH: Yes and no. The -- 21 the slides were given to the resident, or to me, and then 22 I would look at the microscopic tissues, come to an 23 opinion as to what I saw, or what I thought I saw, and 24 then I would sit down with the staff pathologist, and he 25 would review the slides with, discuss what my findings

1 were, correct my diagnoses, whatever, so I did it first 2 on my own and then complete slide by slide supervision. 3 MS. JANE LANGFORD: Were any of the 4 autopsies you performed during that first year of your 5 residency performed on children or infants? 6 DR. CHARLES SMITH: There was a small 7 number. It would be maybe ten (10) or (15), but not -- 8 not a large number, no. 9 MS. JANE LANGFORD: Can you recall what 10 type of cases they would have been? 11 DR. CHARLES SMITH: They were the -- the 12 diseases that would be frequently associated with death 13 in the congenital malformations or ex -- the 14 complications of extreme prematurity. 15 MS. JANE LANGFORD: What about coroner's 16 cases? Did you do any coroner's cases during that first 17 year of your residency? 18 DR. CHARLES SMITH: I did. Not at the 19 very beginning, but as the year progressed I did; again, 20 a small number, perhaps the same as the pediatric cases. 21 It -- it might have been a few more, but perhaps ten (10) 22 or fifteen (15). 23 MS. JANE LANGFORD: And what type of 24 coroner's cases would you have done? 25 DR. CHARLES SMITH: Some of them would

1 have been coroner's cases because they were complications 2 -- or complications of medical management. Some of them 3 were accidents like motor vehicle accidents or farm 4 accidents. 5 MS. JANE LANGFORD: Did you do any 6 criminally suspicious cases during your residency in that 7 first year? 8 DR. CHARLES SMITH: I didn't do any 9 myself. There was one (1) case where I assisted the 10 pathologist -- of a head injury case that was believed 11 to be homicide, so I was merely acting as his pathology 12 assistant. 13 MS. JANE LANGFORD: So you did not 14 perform the autopsy yourself in that case? 15 DR. CHARLES SMITH: No, I didn't. 16 MS. JANE LANGFORD: And did you review 17 the histology in that case? 18 DR. CHARLES SMITH: I don't believe I 19 did. 20 MS. JANE LANGFORD: Did you assist with 21 writing the post-mortem report in that case? 22 DR. CHARLES SMITH: No, I didn't. 23 MS. JANE LANGFORD: So apart from that 24 one case in which you assisted in a criminally suspicious 25 case, did you have any other involvement with criminally

1 suspicious cases during that first year of your 2 residency. 3 DR. CHARLES SMITH: Not that I can 4 recall, no. 5 MS. JANE LANGFORD: And during that first 6 year, Dr. Smith, did you ever discuss the approach to be 7 taken in a criminally suspicious case with any of your 8 supervising pathologists? 9 DR. CHARLES SMITH: No. 10 MS. JANE LANGFORD: I understand that 11 your second year of residency was dedicated to surgical 12 pathology. 13 DR. CHARLES SMITH: That's correct. 14 MS. JANE LANGFORD: Did you do any 15 autopsies that year? 16 DR. CHARLES SMITH: Not that I can 17 recall. 18 MS. JANE LANGFORD: And then you 19 transferred to the University of Toronto for your final 20 two (2) years of your pathology residency, spending your 21 third year at the Princess Margaret Hospital and the 22 Wellesley Hospital sites. 23 DR. CHARLES SMITH: A single site; they 24 were combined in a single department. Yes, I spent a 25 year there.

1 MS. JANE LANGFORD: And I understand your 2 work at that single site was focussed on surgical 3 pathology? 4 DR. CHARLES SMITH: That's correct, yeah. 5 MS. JANE LANGFORD: Did you do any 6 autopsies in that third year of your residency? 7 DR. CHARLES SMITH: I don't recall that I 8 did any -- that I signed out, but I was the senior 9 resident and I had a number of first year residents, and 10 so part of my responsibility was to teach them basic 11 autopsy techniques. 12 So I -- I performed or helped them perform 13 or taught them how to do autopsies, but I didn't do any 14 that I was responsible for. 15 MS. JANE LANGFORD: And were any of those 16 cases that you assisted with criminal cases? 17 DR. CHARLES SMITH: No, no criminal or -- 18 or coroner's cases, no. 19 MS. JANE LANGFORD: And then you went to 20 the Hospital for Sick Children for your fourth year, for 21 a full year, speciality in pediatric pathology? 22 DR. CHARLES SMITH: That's correct, yeah. 23 MS. JANE LANGFORD: And during those 24 twelve months, I understand you did both autopsy and 25 surgical pathology?

1 DR. CHARLES SMITH: That's correct. 2 MS. JANE LANGFORD: How many pediatric 3 autopsies would you have performed at the Hospital for 4 Sick Children in your fourth year of residency? 5 DR. CHARLES SMITH: I probably did 6 seventy-five (75). I might have done close to a hundred 7 (100). It would -- I think in that range. I think that 8 would be a reasonable range. 9 MS. JANE LANGFORD: And did you perform 10 these autopsies yourself? 11 DR. CHARLES SMITH: I -- I did, but in 12 the very beginning, I had continuous supervision during 13 the performance of the autopsy by the staff pathologist 14 because they needed to teach me the specialized 15 techniques that are attendant upon doing a pediatric 16 autopsy; and helped me understand the differences; the 17 significant differences between the pediatric and the 18 adult autopsy. 19 With -- with time, as their confidence in 20 my abilities grew, they would spend less and less time in 21 the autopsy room, but they were -- they were always 22 available, and they -- and they would directly supervise 23 where, in their practice pattern, they -- they felt that 24 was appropriate. 25 MS. JANE LANGFORD: What about the

1 histology in those cases? Would you be reviewing that on 2 your own or with supervision? 3 DR. CHARLES SMITH: Both, and that was 4 the -- the situation I -- I described to you. I'd look 5 at first and then I would look at the slides through the 6 double-headed microscope with the staff pathologist. 7 MS. JANE LANGFORD: What about autopsy 8 reports? Did you do these yourself? 9 DR. CHARLES SMITH: I did, yes. 10 MS. JANE LANGFORD: How did you learn to 11 write pediatric autopsy reports? 12 DR. CHARLES SMITH: In the conference 13 room at the -- in the Department of Pathology is a -- 14 sort of an archive or a library of old autopsy and 15 surgical pathology reports. 16 And so when I first went to the Hospital, 17 I simply looked up, in recent years, the kind of reports 18 that were done. So for autopsies, I -- I looked at what 19 different staff pathologists had done in different kind 20 of cases and tried to get a sense of what were -- what 21 practice patterns were seen in -- in the work of more 22 than one (1) pathologist to kind of establish what an 23 accepted norm would be. 24 And so I tried to follow what I 25 interrupted to be a standard practice pattern.

1 MS. JANE LANGFORD: Did you do any cases 2 in that fourth year of residency under coroner's warrant? 3 DR. CHARLES SMITH: In the beginning, no. 4 But as the year went on, I did have the -- the privilege 5 of doing those when I was asked by the Supervising 6 Pathologist if -- if I would -- would be involved. 7 MS. JANE LANGFORD: And what type of 8 cases -- coroner's cases -- would you have done? 9 DR. CHARLES SMITH: They were similar to 10 what I described for Saskatchewan. Some of them were 11 coroner's cases to investigate complications of medical 12 therapy, such as death after anaesthesia. 13 Others were things like motor vehicle 14 accidents or childhood accidents. 15 MS. JANE LANGFORD: Did you do any 16 criminally suspicious or homicide cases in your fourth 17 year of residency at the Hospital for Sick Children? 18 DR. CHARLES SMITH: No. 19 MS. JANE LANGFORD: Do you know why not? 20 DR. CHARLES SMITH: It was my 21 understanding that the staff pathologists did not want 22 residents involved in those -- in those cases because of 23 the possibility of -- of the -- of the confusion, 24 perhaps, that might be attendant upon a resident giving 25 evidence in Court in a case where pathologists also gave

1 evidence in Court. 2 MS. JANE LANGFORD: You then pursued a 3 Fellowship in pediatric pathology at the Hospital for 4 Sick Children? 5 DR. CHARLES SMITH: I did, yes. 6 MS. JANE LANGFORD: And your area of 7 focus was immunohistal chemistry for diagnostics in 8 pediatric pathology? 9 DR. CHARLES SMITH: Yes. I was involved 10 in doing translational research, if I can use that 11 expression. 12 MS. JANE LANGFORD: During your 13 Fellowship year, Dr. Smith, did you perform any 14 autopsies? 15 DR. CHARLES SMITH: I did, yes. Not at - 16 - not in the first half of the year, but in the latter 17 half of the year when I had my examinations and my 18 licence, I was asked by the Pathologist in Chief, Dr. 19 Phillips, to assist in the autopsy service. 20 MS. JANE LANGFORD: And were any of those 21 coroners -- or those autopsies coroner's cases? 22 DR. CHARLES SMITH: There were some, yes. 23 MS. JANE LANGFORD: Were any of them 24 criminally suspicious or homicide cases? 25 DR. CHARLES SMITH: No. No, their --

1 they weren't. 2 MS. JANE LANGFORD: Dr. Smith, over the 3 course of your ten (10) or so years of medical training, 4 did you ever have occasion to work with a certified 5 forensic pathologist? 6 DR. CHARLES SMITH: No. 7 MS. JANE LANGFORD: And in that time, Dr. 8 Smith, did you receive any training or participate in any 9 discussions about the role of an expert witness in Court 10 proceedings? 11 DR. CHARLES SMITH: No. 12 MS. JANE LANGFORD: I understand you 13 wrote your Canadian Royal College examination in anatomic 14 pathology in 1980? 15 DR. CHARLES SMITH: That's correct. 16 MS. JANE LANGFORD: Do you recall what, 17 if any, questions were on that exam about forensic 18 pathology? 19 DR. CHARLES SMITH: It was typical for 20 the written examination at that time to have a single 21 short essay question on forensic pathology; and so there 22 would have been one (1). 23 Having looked at many Royal College exams 24 prior to the year I did mine, I know of the kind of 25 questions that were asked, but at this point, I can't

1 remember which question was asked on the -- the exam the 2 year I did it. 3 MS. JANE LANGFORD: But you believe it 4 was one (1) or two (2) questions. 5 DR. CHARLES SMITH: It was one (1), yeah. 6 MS. JANE LANGFORD: What about pediatric 7 pathology? Was that the subject of any questions on your 8 Canadian exam? 9 DR. CHARLES SMITH: It was, and it was -- 10 it was minimal. 11 MS. JANE LANGFORD: And you also wrote 12 your American Board of Medical Specialties examination in 13 anatomic pathology in 1980? 14 DR. CHARLES SMITH: That's correct. 15 MS. JANE LANGFORD: Do you recall what, 16 if any, questions were on that exam about forensic 17 pathology? 18 DR. CHARLES SMITH: There were -- there 19 were one (1) or two (2) practical questions, or maybe 20 three (3) practical questions, that would consist of a -- 21 of a photograph and then multiple choice answers. 22 MS. JANE LANGFORD: And pediatric 23 pathology? Was that the subject of any questions on the 24 American exam? 25 DR. CHARLES SMITH: That was the same

1 thing. There would have been several questions within 2 the context of a hundred (100) or more questions. 3 MS. JANE LANGFORD: Dr. Smith, did either 4 exam have any questions about the role of an expert 5 witness in Court proceedings? 6 DR. CHARLES SMITH: No. 7 MS. JANE LANGFORD: And I understand, 8 parenthetically, that at the time you graduated, Dr. 9 Smith, there was no subspecialty exam in either Canada or 10 the United States in pediatric pathology, but that in 11 1999, you successfully wrote your American pediatric 12 pathology subspecialty exam? 13 DR. CHARLES SMITH: That's correct. 14 MS. JANE LANGFORD: You joined the staff 15 of the Hospital for Sick Children as a full-time 16 pathologist in 1981? 17 DR. CHARLES SMITH: I did. 18 MS. JANE LANGFORD: And, so Dr. Smith, am 19 I right that by the time you joined the staff of the 20 Hospital for Sick Children as a full-time pathologist, 21 you had had virtually no exposure to criminally 22 suspicious death investigations? 23 DR. CHARLES SMITH: That's correct. 24 MS. JANE LANGFORD: And you had virtually 25 no exposure to certified forensic pathologists?

1 DR. CHARLES SMITH: I had no exposure to 2 certified forensic pathologists. 3 MS. JANE LANGFORD: Do you recall this 4 being a concern of yours at the time? 5 DR. CHARLES SMITH: No. 6 MS. JANE LANGFORD: Why not? 7 DR. CHARLES SMITH: I was -- I was 8 following the practice pattern of -- of the more senior 9 colleagues in my department, and, so my -- my experience 10 was the same as -- as theirs. 11 It was the same as -- as I understood, of 12 the other pediatric pathologists in Ontario who were 13 doing coroner's cases. I had no knowledge or 14 understanding that there was any value added in forensic 15 pathology. That thought didn't cross my mind, and 16 certainly no one suggested it did. 17 MS. JANE LANGFORD: Did you know any 18 forensically-trained pathologists practising in a 19 pediatric setting at that time? 20 DR. CHARLES SMITH: No. 21 MS. JANE LANGFORD: You then spent the 22 next twenty-four (24) years working as a pediatric 23 pathologist at the Hospital for Sick Children? 24 DR. CHARLES SMITH: I did, yes. 25 MS. JANE LANGFORD: And over those two

1 and a half (2 1/2) decades, Dr. Smith, did you obtain any 2 specific training in forensic pathology? 3 DR. CHARLES SMITH: No. No. Apart from 4 a few conferences that were held, no. 5 MS. JANE LANGFORD: Did the conferences 6 that you refer to have any specific forensic training 7 components to them? 8 DR. CHARLES SMITH: Not -- not specific 9 forensic training, no. No. 10 MS. JANE LANGFORD: What typically would 11 you attend when you attended conferences? 12 DR. CHARLES SMITH: Oh, in -- in the 13 first decade I -- more than the first decade perhaps, I 14 attended conferences that dealt with recent advances in 15 the science of anatomic pathology and, specifically, 16 pediatric pathology. So there was nothing forensic apart 17 perhaps from presentations on recent advances in the 18 understanding of -- of the pathophysiology of SIDS, 19 perhaps. 20 In the latter half, I attend conferences 21 of the American Academy of Forensic Sciences, but there I 22 concentrated on the -- the pediatric sessions. 23 MS. JANE LANGFORD: What about training 24 offered by the Office of the Chief Coroner for Ontario? 25 We've heard that they, from time to time,

1 had conferences. Did you attend those? 2 DR. CHARLES SMITH: Yes. I think there 3 were perhaps two (2) or three (3) in the 1980s. In the 4 1990s, or at least in the latter half of the 1990s, there 5 were several more than that. 6 In those conferences, on -- on a number of 7 instances, there was a lecture in pediatric forensic 8 pathology, but I think I was always the person who gave 9 that lecture. 10 MS. JANE LANGFORD: And did you obtain 11 any specific forensic pathology training from any 12 literature that you might have read as part of your 13 continuing medical education? 14 DR. CHARLES SMITH: Not really. The 15 literature which I concentrated on -- the journals that I 16 concentrated on; again, I was directing my attention to 17 recent advances in diagnostic techniques; better 18 definitions of pediatric pathology diseases and that sort 19 of thing. 20 The forensic literature which I read, I 21 concentrated on the pediatric case discussions. 22 MS. JANE LANGFORD: And as your career 23 progressed, Dr. Smith, and you became more focussed on 24 pediatric forensic pathology, why did you not pursue any 25 more specific forensic training?

1 DR. CHARLES SMITH: It never occurred to 2 me that it was of value. 3 MS. JANE LANGFORD: Did anyone suggest to 4 you that you ought to pursue more specific forensic 5 training? 6 DR. CHARLES SMITH: No. 7 MS. JANE LANGFORD: And sitting here 8 today, Dr. Smith, with the benefit of hindsight, how 9 would you describe your forensic pathology education and 10 training? 11 DR. CHARLES SMITH: It was self-taught. 12 It was minimal. And retrospectively, I realize it was 13 woefully inadequate. 14 MS. JANE LANGFORD: Dr. Smith, Dr. 15 Pollanen, in a memorandum to the Chief Coroner in January 16 of last year, wrote: 17 "That in the 1990s, the prevailing view 18 was that medicolegal autopsies on 19 infants and children are best done by 20 pediatric pathologists." 21 And further, he wrote: 22 "That expertise in pediatric pathology 23 was emphasized over training and 24 qualifications in forensic pathology." 25 Dr. Smith, do you agree with him?

1 DR. CHARLES SMITH: I think that 2 observation is correct. In fact, I think that -- that it 3 could be expanded upon. 4 My experience in the 1970s and 1980s, 5 which Dr. Pollanen wouldn't have had, would indicate to 6 me that that statement was equally correct then. There 7 was seemingly no recognition that, within pediatric 8 forensic pathology, there was a significant input or 9 value from the -- or to consider cases from the 10 perspective of forensic pathology. The emphasis was on 11 the pediatric side; the pediatric diseases and 12 understanding pediatric disorders that could cause sudden 13 death, for instance. 14 MS. JANE LANGFORD: And prior to the 15 publication of the results of the review conducted by the 16 Office of the Chief Coroner, Dr. Smith, did you recognize 17 that there were significant gaps in your basic forensic 18 pathology knowledge? 19 DR. CHARLES SMITH: Well, I knew there 20 were gaps, but those gaps I didn't believe were of 21 concern. For instance, I knew that I didn't know gunshot 22 wounds, but gunshot wounds are not a problem in pediatric 23 pathology here. 24 I knew that I didn't know the toxicology 25 of drug abuse, but that, again, is not a topic of -- of

1 relevance, and so while I understood that there were 2 areas I didn't know, I didn't understand that there were 3 areas of ignorance that -- that bore on the pediatric 4 forensic work. 5 MS. JANE LANGFORD: And can you tell us, 6 Dr. Smith, whether you have ever received any training on 7 the role of an expert witness in Court proceedings? 8 DR. CHARLES SMITH: On one (1) occasion, 9 in the 1990's -- in the earlier 1990's, I believe -- I -- 10 I travelled to the States to attend a two (2) day 11 workshop on how to be an expert witness in medical 12 litigation in the United States. 13 There was -- there was nothing that I was 14 aware of in Canada that could help me in this area, and 15 that was the only thing that I found in the United States 16 that I thought might be relevant. 17 MS. JANE LANGFORD: So that two (2) day 18 workshop was then your only training received in the role 19 of an expert witness in criminal -- or Court proceedings 20 of any sort. 21 DR. CHARLES SMITH: That's correct. It 22 was perhaps a half day of presentations and then the rest 23 of the time were the workshop participants kind of role 24 playing with each other. 25 MS. JANE LANGFORD: And with the benefit

1 of hindsight, Dr. Smith, how would characterize your 2 understanding of the Criminal Justice System and the role 3 of an expert witness? 4 DR. CHARLES SMITH: I thought I knew it, 5 but I -- but I realize now just how profoundly ignorant I 6 was. 7 MS. JANE LANGFORD: Before we leave your 8 training and education, Dr. Smith, can you tell us, are 9 you currently practising forensic pathology anywhere? 10 DR. CHARLES SMITH: No. Oh, no. 11 MS. JANE LANGFORD: And are you licensed 12 to practice forensic pathology anywhere? 13 DR. CHARLES SMITH: No. 14 MS. JANE LANGFORD: Turning, Dr. Smith, 15 to your relationship with the Office of the Chief Coroner 16 of Ontario. 17 Prior to your appointment as Director of 18 the Ontario Pediatric Forensic Pathology Unit in 1992, 19 Dr. Smith, what, if any, contact did you have with the 20 Office of the Chief Coroner in the 1980's? 21 DR. CHARLES SMITH: It would be minimal. 22 I did have -- I did have contact with individual coroners 23 at the level of the individual coroner's cases, and so I 24 would communicate with them before or after an autopsy. 25 Until 1990, I think my involvement with

1 the Chief Coroner's Office would have been in -- in a 2 couple instances; the Amber case that's before us. As 3 well, there was the death of twins in St. Catharine's 4 Welland area, and those death investigation involved me 5 and the Office of the Chief Coroner. 6 MS. JANE LANGFORD: Did you do a lot of 7 coroner's cases in the 1980's? 8 DR. CHARLES SMITH: Well, I -- I don't 9 know how to describe a lot. I didn't do any more than 10 any of my colleagues did, I don't think, or at least, any 11 of my colleagues who were doing that work. Some did not 12 do any coroner's cases. 13 I was doing twenty-five (25) or thirty 14 (30) a year, perhaps -- something like that. 15 MS. JANE LANGFORD: And what was your 16 level of interest in forensic autopsy work as compared to 17 your other work? 18 DR. CHARLES SMITH: I was interested in 19 it. The -- the entire field of pediatric pathology is -- 20 is very interesting and engaging. 21 I came to realize, when I began at Sick 22 Kids, how pivotal, how extraordinarily important is the 23 pediatric autopsy as compared to the adult autopsy, so I 24 was certainly very interested in autopsy pathology in 25 general.

1 With specific reference to the coroner's 2 cases and pediatric forensic pathology, I found they were 3 -- they were very challenging and very, very interesting. 4 They presented diagnostic problems or 5 diagnostic dilemmas. It was rewarding to work through 6 those problems. 7 And the whole field, from Sudden Infant 8 Death Syndrome down through other areas, such as child 9 abuse, was a -- a new and emerging science, and it was -- 10 it was very exciting to be a part of understanding what 11 was going on and trying to think through problems and 12 research opportunities. 13 So it was -- I was interested, and I was 14 interested in pediatric forensic pathology. 15 MS. JANE LANGFORD: Did you perceive your 16 level of interest to differ from your colleagues with 17 respect to pediatric forensic pathology? 18 DR. CHARLES SMITH: We all had different 19 areas of interest. Some, Dr. Cutz for example, had a 20 very profound interest in the pathophysiology of Sudden 21 Infant Death Syndrome, and so he directed much of his 22 energies to that specific area of pediatric forensic 23 pathology. 24 Whereas my interest was, I believe, much 25 broader. My interest in pediatric forensic pathology was

1 much broader, I think, than my colleagues. 2 MS. JANE LANGFORD: And I understand you 3 were a founding member of the Paediatric Death Review 4 Committee, which was established in 1989? 5 DR. CHARLES SMITH: That's correct. 6 MS. JANE LANGFORD: Do you recall why it 7 was that you were appointed to that committee? 8 DR. CHARLES SMITH: Well, I don't -- I -- 9 I don't specifically know why I was asked to participate, 10 but I do know that over the years, I had had discussions 11 with the Chief Coroner, Dr. Bennett, and he was aware of 12 my -- my desire that there be a committee to review 13 pediatric coroner's death investigations in Ontario. 14 So I presume because of our discussions or 15 communication, he approached me knowing that I wanted to 16 see something done in this area. 17 MS. JANE LANGFORD: And then in 1992, Dr. 18 Smith, you were appointed the Director of the newly 19 created Ontario Pediatric Forensic Pathology Unit, and 20 you held that position for thirteen (13) years? 21 DR. CHARLES SMITH: That's correct. 22 MS. JANE LANGFORD: What did you 23 understand was the purpose of that Unit? 24 DR. CHARLES SMITH: The Unit had several 25 purposes. The first was it was to continue providing

1 pathology services; that is, performing pediatric 2 coroners autopsies for the Office of the Chief Coroner. 3 It was to serve as a consultative or 4 reference point for pediatric forensic pathology for the 5 Province of Ontario so that the various staff 6 pathologists could act as consultants and give their 7 opinions to other pathologists or coroners or -- or 8 whoever. 9 It was to have an educational component, 10 so there -- the -- the Unit was to be involved in 11 teaching residents and pathologists and coroners and 12 police, or -- or whoever. 13 And to the degree that it was appropriate, 14 it was to engage in or to support research activities in 15 pediatric forensic pathology. 16 MS. JANE LANGFORD: And why were you 17 appointed its first Director? 18 DR. CHARLES SMITH: For a short period of 19 time prior to that, I had essentially been the supervisor 20 of the autopsy service, and so Dr. Phillips knew that -- 21 that I knew that entire service well which included the 22 coroner's cases. 23 The fact that I was interested in them 24 would have been known to Dr. Phillips and to Dr. Young. 25 And I believe it was on that basis that Dr. Young and/or

1 Dr. Phillips approached me. 2 And at the same time, I'm sure they 3 realized there was no one else in the department who had 4 any time or inclination to take on that role. 5 COMMISSIONER STEPHEN GOUDGE: Dr. Smith, 6 up to that point in time -- 7 DR. CHARLES SMITH: Mm-hm. 8 COMMISSIONER STEPHEN GOUDGE: -- from the 9 time you began at Sick Kids, do you have a sense of how 10 many criminally suspicious cases you would have been 11 involved in within that -- 12 DR. CHARLES SMITH: Within that -- from 13 '81 till -- 14 COMMISSIONER STEPHEN GOUDGE: From '81 to 15 '92? 16 DR. CHARLES SMITH: -- till '92? 17 COMMISSIONER STEPHEN GOUDGE: You 18 mentioned the Amber Case -- 19 DR. CHARLES SMITH: Yeah. 20 COMMISSIONER STEPHEN GOUDGE: -- and the 21 twins. 22 DR. CHARLES SMITH: There were those 23 three (3). I think there would have been ten (10). I -- 24 I really don't think I would have done two (2) a year. 25 It could have been fifteen (15). I think that number

1 might be high. 2 But it's -- I -- 3 COMMISSIONER STEPHEN GOUDGE: How many 4 times would you have given evidence in the criminal 5 court? 6 DR. CHARLES SMITH: Ah -- 7 COMMISSIONER STEPHEN GOUDGE: Up to the 8 point you became the Head of the Unit? 9 DR. CHARLES SMITH: Preliminary -- oh, 10 criminal court, I see. Because I was thinking I've 11 testified at inquests and in family -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. CHARLES SMITH: -- court -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. CHARLES SMITH: -- as well. 16 Excluding those -- 17 COMMISSIONER STEPHEN GOUDGE: Excluding -- 18 DR. CHARLES SMITH: -- criminally -- five 19 (5) times, may -- maybe -- 20 COMMISSIONER STEPHEN GOUDGE: Yes, 21 we'll -- 22 DR. CHARLES SMITH: -- maybe ten (10) 23 times. 24 COMMISSIONER STEPHEN GOUDGE: Yes. 25 DR. CHARLES SMITH: But not --

1 COMMISSIONER STEPHEN GOUDGE: A very 2 small amount then? 3 DR. CHARLES SMITH: -- not dozens of 4 times, no. 5 COMMISSIONER STEPHEN GOUDGE: Okay. 6 Thanks. Sorry, Ms. Langford. 7 8 CONTINUED BY MS. JANE LANGFORD: 9 MS. JANE LANGFORD: From your perspective 10 as Director of the Unit, Dr. Smith, how would you 11 describe the relationship between the Unit and the 12 Hospital itself? 13 DR. CHARLES SMITH: I think the Hospital 14 viewed the individual pathologists as being part of the 15 Department of Pathology, though they may have viewed the 16 performance of coroner's autopsies as essentially being a 17 function of the Office of the Chief Coroner. 18 But we -- I don't believe that we figured 19 significantly in their thinking, and so I -- I rather 20 suspect that we simply were -- were below their -- the 21 horizon on their radar screen. 22 MS. JANE LANGFORD: And what were your 23 responsibilities as Director, vis a vie the other 24 pathologists in the Department? 25 DR. CHARLES SMITH: I -- I had several

1 responsibilities. The first one (1) was to make sure 2 that there was someone who could provide pediatric 3 forensic autopsy services. 4 So there would alw -- there was always a 5 staff pathologist available who -- who participated in 6 doing the coroner's cases. The second thing that I was 7 expected to ensure that the -- the policies or procedures 8 that were mandated by the Office of the Chief Coroner 9 were carried out by the pathologists or in the 10 Department. 11 Later -- a short while later, I was asked 12 to review the final autopsy reports of the staff 13 pathologists before those reports were sent to the -- to 14 the Regional Coroner or the Office of the Chief Coroner. 15 MS. JANE LANGFORD: And when you say, 16 "review those post-mortem reports", what specifically was 17 your responsibility vis a vie those post-mortem reports? 18 DR. CHARLES SMITH: Besides proofreading 19 for typos, which was not an important role, really my 20 attention was directed at looking at the wording in the 21 reports to ensure that the wording in them, such as 22 wording about cause of death was in keeping with the -- 23 the practice or the policies that the Office of the Chief 24 Coroner wanted, so I was looking at wording. 25 It was not my role to re-examine the

1 slides. It was not my role to provide a second opinion. 2 It was simply to make sure that whatever the pathologist 3 did, the written record was in keeping with what the 4 Office of the Chief Coroner wanted. 5 MS. JANE LANGFORD: And, Dr. Smith, what 6 would you do if you had questions about another 7 pathologist's cause of death? 8 DR. CHARLES SMITH: It -- it didn't 9 happen often, but -- but from time to time it would 10 happen, and what I would do is I would take that report 11 back to the staff pathologist and -- and suggest to him 12 or her something that they -- that they may wish to 13 consider if they hadn't already considered it. 14 Sometimes they already had considered it; 15 it wasn't an issue. And then what I would do is I would 16 simply leave the report with them, and -- and that 17 pathologist could do with their report whatever they 18 wanted. 19 It was their report. It was their 20 opinion. I just felt that it was my role to -- to make a 21 suggestion, or at least, to bring to their mind a 22 suggestion if they hadn't already considered it. 23 MS. JANE LANGFORD: And, Dr. Smith, you 24 are aware of Dr. Cutz' evidence at this Inquiry, that 25 you, from time to time, challenged his opinion.

1 DR. CHARLES SMITH: Ye -- yes, I am. 2 MS. JANE LANGFORD: Do you have 3 recollection of instances when you and he differed as to 4 the appropriate cause of death on a case? 5 DR. CHARLES SMITH: Yes. Yes. It 6 occurred in two (2) situations, and the first was a -- 7 was a common one (1). The -- the Department held a 8 weekly autopsy conference at which the pathologists or 9 the pathology residents would present an autopsy -- the 10 history, the autopsy findings, and discuss it -- and that 11 was done for both hospital and coroner's cases, and 12 that's a working around. 13 It's a -- it's a freewheeling 14 discussion; exchange of ideas, pro-offering opinions or 15 suggestions, and so that was a -- that was an environment 16 in which -- essentially, it was iron sharpening iron. We 17 all -- we all made observations. We all made 18 suggestions. 19 At times I would question the diagnosis of 20 other people. At times they would question mine, and 21 certainly Dr. Cutz questioned mine. And -- and that was 22 the purpose of those rounds. It was both educational and 23 quality assurance, and -- and they are good rounds for 24 that purpose. 25 There were -- there were several occasions

1 -- two (2) or perhaps, three (3) -- when in the role 2 which I just described to you of reviewing autopsy 3 reports, that I -- I went to Dr. Cutz and I made a 4 suggestion to him. I think it was respectfully and 5 polite -- politely, but I made a suggestion to him that 6 he might consider a certain cause of death if he hadn't 7 already considered it. 8 I did it because I was expected to, and I 9 did it in -- in the -- in the spirit of trying to be 10 helpful. I -- I'm sorry if he perceived my action as -- 11 as representing an unwarranted challenge. 12 MS. JANE LANGFORD: And did you ever make 13 Dr. Cutz alter his cause of death? 14 DR. CHARLES SMITH: Oh, never, no. I 15 would make a suggestion and leave the report, and -- and 16 it's his report; it's his opinion. I would never -- no, 17 I would never do that. 18 MS. JANE LANGFORD: From your perspective 19 of dire -- as Director, Dr. Smith, how would you 20 characterize the relationship between the Ontario 21 Pediatric Forensic Pathology Unit and the Office of the 22 Chief Coroner of Ontario? 23 DR. CHARLES SMITH: There was a cordial 24 and professional relationship. We -- we operated in 25 separate silos or geographically distinct loci. I

1 believe the Office of the Chief Coroner was very pleased 2 with the quality of the work of the staff pathologists 3 and they recognized we had expertise and access to 4 experts and diagnostic equipment that -- that brought 5 value to the work, and -- but we didn't figure in their 6 strategic or management decisions or planning at all. 7 And -- and so I think that for those reasons, we perhaps 8 suffered from benign neglect. 9 Go ahead. 10 MS. JANE LANGFORD: What about the 11 relationship between the Pediatric Forensic Pathology 12 Unit and the Chief Forensic Pathologist? 13 DR. CHARLES SMITH: Oh, in the beginning, 14 there was no relationship whatsoever. In the latter 15 years of Dr. Hillsdon Smith's career, he had no 16 involvement with -- with the Hospital for Sick Children 17 whatsoever. 18 In 1994, Dr. Chiasson was appointed the 19 new Chief Forensic Pathologist. He had been trained at 20 Sick Kids, and he expressed an interest, as Chief 21 Forensic Pathologist, to -- to have a greater degree of 22 involvement in the -- in the cases or the work that we 23 were doing and so we attempted to accommodate his -- his 24 request. 25 MS. JANE LANGFORD: And how did you

1 accommodate that request? 2 DR. CHARLES SMITH: Oh, in the beginning, 3 he wanted us to re-arrange or alter the scheduling for 4 the weekly clinical pathologic autopsy conference so that 5 he might participate in that. 6 And we were pleased to do so, so that he 7 and others from the Chief Coroner's -- or from the 8 coroner's building could come along; that we could show 9 them the things that were peculiar about pediatric 10 pathology, and they may bring their knowledge. And that 11 -- that pattern continued for a period of several years; 12 perhaps -- perhaps three (3) years. 13 MS. JANE LANGFORD: What happened after 14 those three (3) years? 15 DR. CHARLES SMITH: Dr. Chiasson asked 16 that the -- that the rounds be transferred to the -- the 17 coroner's building -- to the pathology conference room in 18 the coroner's building. That made it difficult for all 19 of the staff pathologists to attend and so rarely, were 20 the cases presented by anyone other than me. 21 And what I would do is, I would simply go 22 around; gather up the cases from the other staff 23 pathologists. Those were cases that were currently going 24 through the department that may be incomplete, and then 25 present the cases as best I knew them, and the Chief

1 Forensic Pathologist and any others who might attend 2 could learn or could make comment. 3 MS. JANE LANGFORD: When you said it made 4 it difficult for the staff pathologists to attend, you're 5 referring to the staff pathologists at Hospital for Sick 6 Children? 7 DR. CHARLES SMITH: Yes, I'm sorry, I 8 should have been clear. 9 MS. JANE LANGFORD: So after those 10 several years, which I understand to be in 1998, the 11 transfer to the Coroner's Office occurred. Is that 12 correct? 13 DR. CHARLES SMITH: That's correct. 14 MS. JANE LANGFORD: So after that period 15 of time, you would have been one (1) of the only staff 16 pathologists from Sick Kids Hospital going to the 17 coroner's building for those rounds? 18 DR. CHARLES SMITH: In the vast majority 19 of instances, I was the only person, yes. 20 MS. JANE LANGFORD: Dr. Smith, we have 21 heard evidence that commencing sometime in the mid-1990s, 22 Dr. Chiasson also requested that he review all post- 23 mortem reports in criminally suspicious cases. 24 What was your understanding as to the 25 nature of Dr. Chiasson's review?

1 DR. CHARLES SMITH: In the beginning, it 2 was a paper review. He would simply receive the 3 completed autopsy reports either from the Regional 4 Coroner or at Sick Kids. We would send him the -- the 5 completed reports directly. Later -- some time later -- 6 we began to provide to him the trays of microscopic 7 slides on a case. 8 So that in addition to doing a paper 9 review, if he wanted, he could -- he could select glass 10 slides to look at as well as part of the audit of our 11 work. 12 MS. JANE LANGFORD: Did you ever discuss 13 the reviews Dr. Chiasson did on your reports? 14 DR. CHARLES SMITH: No. No, I -- he 15 never said anything to me. He -- he certainly never 16 returned a report for amendment or correction. 17 MS. JANE LANGFORD: And with the benefit 18 of hindsight, Dr. Smith, would you and the other 19 pathologists at Hospital for Sick Children have benefited 20 from a closer working relationship with the Chief 21 Forensic Pathologist? 22 DR. CHARLES SMITH: Yes, we would have. 23 MS. JANE LANGFORD: Why? 24 DR. CHARLES SMITH: He would have brought 25 to us knowledge and expertise, not only in the diagnostic

1 aspects of -- of these pediatric coroner's cases but also 2 in the broader spectrum of everything that would be known 3 to a forensic pathologist that may not be known to a 4 pediatric pathologist. 5 MS. JANE LANGFORD: And what authority -- 6 COMMISSIONER STEPHEN GOUDGE: Does that 7 sort of refer to the participation in the Justice System? 8 Is that what you were referring to by that? 9 DR. CHARLES SMITH: That -- that would be 10 part of it, or sometimes approach to cases; sometimes, 11 you know, how to -- how to communicate with the police; 12 everything other than simply -- simply the piece of 13 paper. 14 We -- we were concentrating on the piece 15 of paper, and -- and there's obviously much more to what 16 goes on than simply the authoring of -- of a report. 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 18 Langford. 19 20 CONTINUED BY MS. JANE LANGFORD: 21 MS. JANE LANGFORD: Dr. Smith, what 22 authority, if any, did you have as Director of the Unit 23 to improve the conductivity between the Unit and the 24 Chief Coroners Office and the Chief Forensic Pathologist? 25 DR. CHARLES SMITH: I -- I had -- I had

1 no authority. I -- I couldn't make policy decisions, or 2 rem -- implement policies, or procedures without -- 3 without the authorization of the Off -- Office of the 4 Chief Coroner. 5 MS. JANE LANGFORD: And what about 6 changes within the Hospital for Sick Children itself? 7 DR. CHARLES SMITH: Well, in the 8 Department of Pathology, I was not the Chief, and, so the 9 staff pathologists were all responsible to the Chief, so 10 I had no authority there. 11 And within the -- the greater hospital, I 12 was not part of a -- of the management process, and -- 13 and so once again had no authority. 14 It would be the Pathologist in Chief who 15 would speak on behalf of the forensic pathology unit. 16 MS. JANE LANGFORD: Dr. Smith, do you 17 attribute any of the disconnect between the Office of the 18 Chief Coroner and the Chief Forensic Pathologist and the 19 Unit, as being your responsibility? 20 DR. CHARLES SMITH: Yeah -- yes, I do. I 21 -- I'm not, by talent or gift, a leader. I'm certainly 22 not -- not an organized person, and -- and I think that 23 more could have been done. 24 So, yes, I recognize that -- that I am 25 part of the reason for -- for those disconnections.

1 MS. JANE LANGFORD: I want to turn, for a 2 moment, to your own work as a pathologist at the Hospital 3 for Sick Children in the 1990's. 4 First of all, Dr. Smith, how would you 5 describe your workload during that decade? 6 DR. CHARLES SMITH: It was heavy. It was 7 -- it was stressful. I don't think it was any heavier 8 than any other staff pathologist, in general. 9 Each of us, at times, could be much busier 10 than our colleagues, but that was a reflection on 11 variations in work-flow and demands and anything from 12 teaching and research activities. 13 We were all -- we were all busy. We were 14 all more than fully employed. 15 MS. JANE LANGFORD: And what constituted 16 the bulk of your work during the 1990's? 17 DR. CHARLES SMITH: The -- my work in the 18 pediatric coroner's autopsies, I think, was the -- the 19 greatest portion of my work or the largest slice of the 20 pie. 21 MS. JANE LANGFORD: Can you tell us, 22 typically, about how many coroner's autopsies or forensic 23 autopsies, you would have done a year? 24 DR. CHARLES SMITH: That increased as the 25 1990's went on, and I was asked to take on more cases and

1 more complex cases. 2 It might have started off with sixty (60), 3 perhaps and then with time, increased. I don't think it 4 ever reached a hundred (100). It might have reached 5 ninety (90); somewhere in that range, yes. 6 MS. JANE LANGFORD: And so what 7 percentage of your work would that constitute? 8 DR. CHARLES SMITH: In the beginning, it 9 would be less than half of it; 40 percent perhaps. With 10 time, it increased. I don't think it ever hit three- 11 quarters (3/4s) of it. Seventy percent, I think, would 12 be a reasonable estimate. 13 MS. JANE LANGFORD: And how did you spend 14 the remainder of your time? 15 DR. CHARLES SMITH: I was responsible for 16 some hospital autopsies. I had involvement in surgical 17 pathology. I had, at -- at times, heavy teaching 18 responsibilities at the University. 19 There were research activities which, at 20 times, were demanding, and there were some administrative 21 tasks that I had. 22 MS. JANE LANGFORD: Dr. Smith, you have 23 been characterized, in the media, as someone who sees 24 child abuse in every pediatric death. 25 How do you feel about this portrayal of

1 your work? 2 DR. CHARLES SMITH: I think that's 3 grossly erroneous. 4 MS. JANE LANGFORD: Why? 5 DR. CHARLES SMITH: I believe that the 6 record on individual cases perhaps is supported by my 7 research as well as the overall -- or the record overall 8 of my work would show that -- that, in fact, criminally 9 suspicious cases really were only a very small part of my 10 work. 11 MS. JANE LANGFORD: And to assist us in 12 understanding that, Dr. Smith, could you turn to Tab 8 of 13 your written evidence, Appendix B, and, Mr. Registrar, 14 that's PFP303346. 15 16 (BRIEF PAUSE) 17 18 MS. JANE LANGFORD: So this is Appendix 19 B. I think it's page 138. 20 21 (BRIEF PAUSE) 22 23 MS. JANE LANGFORD: Yes, page 138. Dr. 24 Smith, this is a diagram of the types of coroner's 25 autopsy you performed between 1989 and 2004?

1 DR. CHARLES SMITH: That's correct. 2 MS. JANE LANGFORD: And I understand it 3 has been created from two (2) spreadsheets of data 4 obtained from the Hospital for Sick Children? 5 DR. CHARLES SMITH: Yes. 6 MS. JANE LANGFORD: And to the best of 7 your knowledge, is this data -- was this data reasonably 8 accurate? 9 DR. CHARLES SMITH: I believe it is, yes. 10 MS. JANE LANGFORD: So according to this 11 diagram, Dr. Smith, you performed eight hundred and 12 twenty-eight (828) coroner's autopsies between 1989 and 13 2004? 14 DR. CHARLES SMITH: Yes. 15 MS. JANE LANGFORD: And I understand this 16 does -- this diagram does not include cases on which you 17 were consulted? 18 DR. CHARLES SMITH: That's correct. 19 MS. JANE LANGFORD: So of those eight 20 hundred and twenty-eight (828) autopsies, Dr. Smith, this 21 diagram suggests that you concluded that the child died 22 of natural disease in 49.3 percent of the cases? 23 DR. CHARLES SMITH: That's correct. 24 MS. JANE LANGFORD: And in another 16.9 25 percent of the cases you concluded that the child died of

1 SIDS? 2 DR. CHARLES SMITH: That's correct. 3 MS. JANE LANGFORD: And SIDS, Dr. Smith, 4 is a subset of natural disease? 5 DR. CHARLES SMITH: I believe that's how 6 it's best recognized, yes. 7 MS. JANE LANGFORD: So is it fair to say, 8 Dr. Smith, that in essentially two thirds (2/3) of the 9 cases in which you performed coroner's autopsies, the 10 diagnosis of cause of death was a natural one? 11 DR. CHARLES SMITH: That's correct. 12 MS. JANE LANGFORD: And then you found 13 that the death was an accident including fire in 16.8 14 percent of the cases? 15 DR. CHARLES SMITH: Yes. 16 MS. JANE LANGFORD: So that in 80 -- 17 COMMISSIONER STEPHEN GOUDGE: Sorry, 18 those are two (2) slices, Ms. Langford? 19 MS. JANE LANGFORD: Yes, they are. 20 DR. CHARLES SMITH: Yes. 21 MS. JANE LANGFORD: There's -- 22 COMMISSIONER STEPHEN GOUDGE: I couldn't 23 distinguish the coding on the right hand side. 24 MS. JANE LANGFORD: No, you -- 25 COMMISSIONER STEPHEN GOUDGE: Which is

1 the 14.5? 2 MS. JANE LANGFORD: 14.5 is accidents 3 other than fires. 4 COMMISSIONER STEPHEN GOUDGE: Okay. 5 And -- 6 MS. JANE LANGFORD: And then -- 7 COMMISSIONER STEPHEN GOUDGE: -- the 2.3? 8 MS. JANE LANGFORD: Yes, fires, smoke -- 9 COMMISSIONER STEPHEN GOUDGE: Is fires? 10 MS. JANE LANGFORD: -- inhalation, burns. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 MS. JANE LANGFORD: Yes, I think that's 13 right. 14 COMMISSIONER STEPHEN GOUDGE: And then 15 the others, could you go quickly through them? It would 16 help me if I could -- 17 MS. JANE LANGFORD: Absolutely. 18 COMMISSIONER STEPHEN GOUDGE: -- label 19 them? 20 MS. JANE LANGFORD: So -- 21 COMMISSIONER STEPHEN GOUDGE: 8.6 22 undetermined, is that it? 23 24 CONTINUED BY MS. JANE LANGFORD: 25 MS. JANE LANGFORD: 8.6 is undetermined?

1 DR. CHARLES SMITH: Correct. 2 MS. JANE LANGFORD: Homicide 5.6? 3 DR. CHARLES SMITH: That's correct. 4 MS. JANE LANGFORD: 1.6 is infanticide, 5 abandoned body? 6 DR. CHARLES SMITH: That's correct. 7 MS. JANE LANGFORD: .2 percent suicide? 8 DR. CHARLES SMITH: There were two (2) 9 cases of suicide, yes. 10 MS. JANE LANGFORD: And 1.1 percent not 11 able to classify based on the information? 12 DR. CHARLES SMITH: That's correct. 13 MS. JANE LANGFORD: And I understand that 14 means that it was not able to determine from the data 15 what the case was about? 16 DR. CHARLES SMITH: Right. Yeah, it -- 17 they could have been in any category, yes. 18 COMMISSIONER STEPHEN GOUDGE: Thank you. 19 20 CONTINUED BY MS. JANE LANGFORD: 21 MS. JANE LANGFORD: So, Dr. Smith, in 83 22 percent of the cases in which you performed an autopsy 23 under coroner's warrant, you concluded that there was 24 nothing suspicious about the child's death? 25 DR. CHARLES SMITH: That's correct.

1 MS. JANE LANGFORD: And as we said, 8.6 - 2 - a further 8.6 -- you determined that the cause of death 3 was not -- it was undetermined. 4 DR. CHARLES SMITH: That's correct. 5 MS. JANE LANGFORD: And so only 5.6 6 percent of cases were cases in which you felt were 7 homicidal or criminally suspicious. 8 DR. CHARLES SMITH: That's right. 9 MS. JANE LANGFORD: Dr. Smith, we have 10 heard much evidence about the protocol for investigation 11 of sudden unexpected death for children under the age of 12 two (2), or Memo 631. What role, if any, did you play in 13 its development? 14 DR. CHARLES SMITH: I had two (2) roles. 15 My -- my major role was that authoring of the protocol 16 for the pediatric forensic autopsy, and I think that's 17 one (1) of the addendum or appendices of that, and so I - 18 - I wrote that myself. 19 I did show it to my colleagues at Sick 20 Kids. The -- the rest of the report and the rest of the 21 -- of the Memo 631 was discussed by the Paediatric Death 22 Review Committee, so -- so I was aware of it as -- as 23 part of the Committee discussions. 24 MS. JANE LANGFORD: And what about the 25 language "think dirty"? What role, if any, did you have

1 in its inclusion in the memo? 2 DR. CHARLES SMITH: I -- I didn't. That 3 was Dr. Cairns' role. That was his -- his component, 4 should I say, or part of his component of the protocol. 5 MS. JANE LANGFORD: What did you 6 understand the phrase "think dirty" to mean? 7 DR. CHARLES SMITH: As -- as I understood 8 it, what -- what Dr. Cairns wanted to communicate to the 9 coroners and pathologists and police, or whoever, was 10 that even if a case on its surface did not appear to have 11 any suspicion to it, be it an accident or a natural 12 disease, that the possibility of something sinister 13 should be placed on the differential diagnosis so that, 14 at least, consideration was given to that, and -- and 15 where appropriate, that possibility was -- was firmly 16 excluded. 17 It -- it did not mean that it was to bias 18 us, but rather it was meant simply as a, Be sure you 19 think about this. 20 COMMISSIONER STEPHEN GOUDGE: Did you 21 have the sense at the point of introduction of the memo, 22 Dr. Smith, that there was a sense in the Committee that 23 there was child abuse going undetected? 24 DR. CHARLES SMITH: Oh, yes. Yeah, that 25 was -- that was an ongoing problem, I think, that had

1 been recognized for a while. And that was certainly one 2 (1) of the reasons why in the mid 1980's, I first 3 discussed with -- with Dr. Rosben (phonetic), the Chief 4 Coroner then. 5 My concerns, because I had had involvement 6 in the -- in the twins from St. Catharines where the 7 death of one (1) twin could have been obviated if child 8 abuse had been seen in the -- in the death of the first 9 twin that was called Sudden Infant Death Syndrome. 10 And so annen -- anecdotally there were 11 other things that I heard from time to time, so I believe 12 that all of us on the Committee were concerned about 13 that, but concern not simply of missing child abuse, but 14 also concerned about the fact that if you're going to 15 make a child abuse conclusion or a conclusion about 16 neglect, which can be even more difficult, you need a 17 very good information-base, and that's not just 18 pathology, but it's also from the Coroner's System and 19 the -- and the police investigators. 20 21 CONTINUED BY MS. JANE LANGFORD: 22 MS. JANE LANGFORD: Do you believe, Dr. 23 Smith, that as a result of the direction from the Office 24 of the Chief Coroner to "think dirty", that you were 25 biassed in your findings, opinions, and conclusions in

1 any of the twenty (20) cases that are the subject of 2 review of this -- at this Inquiry? 3 DR. CHARLES SMITH: I don't believe I 4 was, no. 5 6 (BRIEF PAUSE) 7 8 MS. JANE LANGFORD: All right, we have 9 heard some evidence, Dr. Smith, at this Inquiry that 10 there were concerns about your surgical pathology work at 11 the Hospital for Sick Children. 12 Are you aware of that evidence? 13 DR. CHARLES SMITH: Yes, I am. 14 MS. JANE LANGFORD: During the time that 15 you were employed at the hospital, Dr. Smith, were you 16 advised that there were concerns about your competence in 17 surgical pathology? 18 DR. CHARLES SMITH: Never. 19 MS. JANE LANGFORD: Did you receive 20 annual work evaluations? 21 DR. CHARLES SMITH: I did, yes. 22 MS. JANE LANGFORD: And what did you 23 understand these to say about your competence as a 24 surgical pathologist? 25 DR. CHARLES SMITH: As best I recall,

1 they always indicated that my work was very good or 2 excellent. 3 MS. JANE LANGFORD: Were there any 4 exceptions to that? 5 DR. CHARLES SMITH: There was one (1) 6 year wit -- in which the review, which I -- I don't 7 recall seeing at the time, but I have seen it in the 8 Information before this Inquiry, which indicated that my 9 performance was, I think the expression was something 10 like "less than adequate", or -- or something, and that 11 was not because of diagnostic expertise. 12 That was because of the tardiness of my 13 reports. 14 MS. JANE LANGFORD: We'll come back to 15 your tardiness in a moment, Dr. Smith. 16 Are you aware of instances in which your 17 colleagues challenged your surgical pathology diagnoses? 18 DR. CHARLES SMITH: Oh, yes. Oh, yes. 19 That was -- that's a reflection of -- of a couple things. 20 Surgical pathology is not a precise 21 science. It's an interpretive discipline, and, so 22 there's always a possibility, on any given case, for a -- 23 a mistake, or for a variation in opinion; that may not 24 necessarily be a mistake, but a variation in opinion. 25 And the -- the chance of that occurring on

1 any individual case depends on the case; the complexity; 2 the experience of the pathologist. 3 I think all of us at Sick Kids found 4 mistakes or had a significantly different opinion from 5 our colleagues from time to time. 6 It happened with me, and I certainly found 7 cases where I disagreed with -- with the opinions of my 8 colleague, and my approach then was to do what I 9 described with the -- the medicolegal review; simply to 10 go back to my colleague, and suggest to them that -- that 11 I had a difference in opinion, and they may want to 12 reconsider it, and if appropriate, send out a -- an 13 amended surgical pathology report. 14 MS. JANE LANGFORD: And, so that happened 15 to you from time to time? 16 DR. CHARLES SMITH: Yes. 17 MS. JANE LANGFORD: Can you give us a -- 18 a sense of how frequently that happened to you? 19 DR. CHARLES SMITH: It was -- it was 20 rare. What I -- I can't give you numbers, but it -- it 21 was rare, but it -- but it did happen from time to time. 22 I think it happened to all of us, and we 23 all wanted to be sure that -- that the work of our 24 colleagues was the best. 25 And as well, we each had different

1 diagnostic expertise, and so that I might make a finding 2 on a lymph node imutive -- immunodeficiency that varied 3 with another person, and Dr. Cutz could correct a lung 4 biopsy because he knew lung disease better than I did. 5 MS. JANE LANGFORD: Did you ever receive 6 a reduction in salary arising from concerns about your 7 competence in surgical pathology, Dr. Smith? 8 DR. CHARLES SMITH: Never. 9 MS. JANE LANGFORD: Were you ever removed 10 from the surgical pathology rotation due to concerns 11 about your competence in surgical pathology? 12 DR. CHARLES SMITH: Never. 13 MS. JANE LANGFORD: And turning back to 14 your tardiness, Dr. Smith. The record before this 15 Inquiry demonstrates that you had serious issues with 16 timeliness of your reports; both your surgical reports 17 and your autopsy reports. Do you understand that? 18 DR. CHARLES SMITH: I recognize that, 19 yes. 20 MS. JANE LANGFORD: How, Dr. Smith, do 21 you explain the persistent pattern of late reports that 22 these cases and the documents, reveal? 23 DR. CHARLES SMITH: I'm embarrassed by 24 them. I -- I have no one to blame but myself. I 25 recognize that I'm not organized; that I'm an untidy

1 person. 2 And -- and I -- I recognize that those 3 characteristics, when confounded by unpredictable and, at 4 times, onerous work load, or demands resulted in delays 5 that -- that should not have occurred. I'm sorry. I'm 6 sorry for them. I'm embarrassed by them, and I'm sorry 7 for them. 8 I realize, at times, in my frustration, I 9 pointed the finger at others and that was wrong for me to 10 do and I'm -- and I'm sorry for implicating others, and 11 I'm sorry for the inconvenience or the problems that -- 12 that my own actions may have resulted in. 13 MS. JANE LANGFORD: Dr. Smith, you do 14 realize that in one (1) case, the Athena case, your 15 delays contributed to the stay of criminal charges 16 against two (2) individuals? 17 DR. CHARLES SMITH: I'm aware of that, 18 yes. 19 MS. JANE LANGFORD: How do you feel about 20 that today? 21 DR. CHARLES SMITH: I'm -- I'm deeply 22 contrite. 23 MS. JANE LANGFORD: You are also subject, 24 Dr. Smith, to criticism for your failure to maintain care 25 and control over tissue blocks, slides and other

1 evidence. 2 Can you explain your behaviour in this 3 regard? 4 DR. CHARLES SMITH: Again, I have no one 5 to blame but myself. 6 I think that is -- is an expression of my 7 disorganization and untidiness and perhaps, also a -- an 8 expression of the fact that I wasn't fully attuned to the 9 -- the importance or the procedures related to things 10 like continuity of evidence. 11 MS. JANE LANGFORD: I want to turn, Dr. 12 Smith, to some of the cases under review, and I want to 13 first deal with the asphyxia cases. 14 Dr. Smith, how do you interpret the 15 findings of petechial hemorrhages in the thoracic viscera 16 or in the hearts -- heart, lungs and thymus? 17 DR. CHARLES SMITH: The -- the -- those 18 findings are findings which are consistent with -- or are 19 a finding in asphyxia, but they are non-specific. And so 20 in and of themselves, they do not permit a definitive 21 diagnosis of asphyxia. 22 MS. JANE LANGFORD: When you say, "they 23 do not permit a definitive diagnosis of asphyxia", we've 24 heard language such as non-diagnostic or non-specific -- 25 DR. CHARLES SMITH: That's correct.

1 MS. JANE LANGFORD: -- is that what you 2 mean? 3 DR. CHARLES SMITH: I think I just said 4 non-specific. Yes, that's what I mean. Yeah. 5 MS. JANE LANGFORD: Okay, so not 6 diagnostic? 7 DR. CHARLES SMITH: But not diagnostic. 8 I'm sorry, I should have used that term, yes. 9 MS. JANE LANGFORD: Oh that's okay. 10 What about petechial hemorrhages in the 11 face, the eyes, behind the ears and in the larynx. How 12 do you interpret those findings? 13 DR. CHARLES SMITH: Similarly. They are 14 -- they are not diagnostic. They don't permit a 15 definitive diagnosis yet they -- they can serve as an 16 indicator of a type of mechanical asphyxia, but, in and 17 of themselves, they do not permit a diagnosis of 18 mechanical asphyxia. 19 MS. JANE LANGFORD: And did you 20 understand, Dr. Smith, that these findings were non... 21 DR. CHARLES SMITH: I'm sorry. I 22 appreciate my handler's help. 23 MS. JANE LANGFORD: Did you understand 24 that these findings were non-specific or non-diagnostic, 25 at the time you performed the autopsies in the asphyxia

1 cases that are before this Inquiry? 2 DR. CHARLES SMITH: Yes, I did. 3 MS. JANE LANGFORD: In what circumstances 4 then did you use asphyxia as a cause of death in a post- 5 mortem report? 6 DR. CHARLES SMITH: There are -- there 7 are sort of three (3) general components that can make 8 that up. But each one (1), in and of themselves, is not 9 sufficient. 10 The finding of intrathoracic petechiae 11 with either the finding of -- head and -- hemorrhage in 12 the head and neck area which would point to the type of 13 mechanical asphyxia would be in -- in my opinion, 14 sufficient to make a diagnosis of asphyxia, or the 15 finding of the non-specific intrathoracic petechiae 16 supported by a history or circumstantial evidence such as 17 a plastic bag over a face; again, were sufficient for a 18 diagnosis of asphyxia, so at least two (2) of the three 19 (3) components with the common component being the -- the 20 non-specific intrathoracic petechiae. 21 COMMISSIONER STEPHEN GOUDGE: What did 22 you mean when you used the term asphyxia, Dr. Smith? 23 DR. CHARLES SMITH: Oh, the definition 24 which I used is -- is the pathophysiologic definition. 25 And -- and that definition is -- is a state of -- of

1 compromised supply or utilization of oxygen by the 2 tissues of the body. 3 So that -- that is a -- is a, perhaps, a 4 wider or a broader definition than some would use, but 5 that definition would recognize that asphyxia can be 6 caused by natural diseases, whereas some people would -- 7 would recognize that a natural disease should be left on 8 its own as a cause of death, rather than -- rather than 9 implicating asphyxia as the cause of that. 10 COMMISSIONER STEPHEN GOUDGE: Thank you. 11 12 CONTINUED BY MS. JANE LANGFORD: 13 MS. JANE LANGFORD: So as an example, Dr. 14 Smith, I want to look at the Delaney case for a moment. 15 So perhaps you could get your binder out, and 16 specifically your post-mortem report in the Delaney case 17 which is at Tab 5 of the Delaney binder. 18 And, Mr. Registrar, it's PFP002388. It's 19 Tab 5. Do you have that, Dr. Smith? 20 DR. CHARLES SMITH: I have that, yes. 21 MS. JANE LANGFORD: And specifically, Dr. 22 Smith, the last -- or page 5 of your post-mortem report. 23 DR. CHARLES SMITH: I have that. 24 MS. JANE LANGFORD: And on page 5, Dr. 25 Smith, you list the abnormal findings and then conclude

1 that the cause of death in Delaney's case was asphyxia. 2 What was the basis of that conclusion in Delaney's case? 3 DR. CHARLES SMITH: You can see that 4 information in the Section 7 above. There was the 5 finding of intrathoracic petechiae listed in Section 1.2. 6 As well, there was evidence of hemorrhage involving the 7 upper laryngeal region, the epiglottic region, and 8 hemorrhage adjacent to the trachea in the lower neck 9 region. 10 And so that represents two (2) of the 11 three (3) components; intrathoracic petechiae and 12 specific hemorrhage. And then the third component was 13 that I was given a history that the mother had placed her 14 finger in Delaney's airway on three (3) occasions. 15 MS. JANE LANGFORD: And so your 16 diagnosis, Dr. Smith, of asphyxia was not, as suggested 17 by the reviewers, based on the thoracic petechiae alone? 18 DR. CHARLES SMITH: No, it wasn't. 19 MS. JANE LANGFORD: And nor was it based 20 on the circumstantial evidence of the mother putting her 21 fingers down the throat three (3) times? 22 DR. CHARLES SMITH: No, it wasn't. 23 MS. JANE LANGFORD: Now given the non- 24 specifity -- specificity -- sorry -- given the general 25 signs that you found in this case, Dr. Smith, did you

1 consider using undetermined as a cause of death? 2 DR. CHARLES SMITH: No. No. 3 MS. JANE LANGFORD: Why not? 4 DR. CHARLES SMITH: That was not a -- a 5 practice pattern that -- that I was aware of or was wide 6 spread at that time. It was really only in the later 7 1990s that it became more generally accepted to use a 8 term such as undetermined or unascertained or no anatomic 9 cause of death. 10 COMMISSIONER STEPHEN GOUDGE: And did you 11 start using it then? 12 DR. CHARLES SMITH: I started using it 13 sometime in the later 1990s, as I recall. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 16 CONTINUED BY MS. JANE LANGFORD: 17 MS. JANE LANGFORD: Turning as a further 18 example, Dr. Smith, to the Katharina case, and 19 specifically your post-mortem report in Katharina, which 20 is PFP007583. And that's at Tab 4 of the Katharina 21 binder. 22 DR. CHARLES SMITH: I have that. 23 MS. JANE LANGFORD: And specifically, 24 page 9 of that report. 25 DR. CHARLES SMITH: I have that, yes.

1 MS. JANE LANGFORD: Page 9, Mr. 2 Registrar. 3 COMMISSIONER STEPHEN GOUDGE: Yes, I have 4 it, thanks. 5 6 CONTINUED BY MS. JANE LANGFORD: 7 MS. JANE LANGFORD: You list, again, your 8 abnormal findings and the cause of death in Katharina's 9 case as asphyxia. Can you tell us what the basis of your 10 conclusion was in Katharina's case? 11 DR. CHARLES SMITH: This is similarly the 12 three (3) components; the nonspecific intrathoracic 13 petechiae, the finding of hemorrhage in the head and neck 14 area that would support it, and specifically, there were 15 a couple conjunctival hemorrhages and -- and a small 16 amount of hemorrhage in the soft tissue of the neck, 17 which, of course, are -- are subtle and not as florid as 18 they are in -- in some of the cases. 19 And then the third component of that was 20 that I was told that the mother had confessed or 21 described or recorded the fact that she had, I believe, 22 suffocated her daughter with a pillow. 23 MS. JANE LANGFORD: So again, Dr. Smith, 24 contrary to the reviewer's opinion, you did not base your 25 finding of asphyxia exclusively on the thoracic

1 petechiae? 2 DR. CHARLES SMITH: No. No, there were 3 three (3) components. 4 MS. JANE LANGFORD: And is your use of 5 asphyxia in these two (2) cases a good reflection of your 6 general approach to the asphyxia cases you had in the 7 1990s, including those that are before this Commission? 8 DR. CHARLES SMITH: I believe so, yes. 9 MS. JANE LANGFORD: And looking at this 10 Katharina on page 9, Dr. Smith, you put the word 11 "filicidal" in brackets, do you see that? 12 DR. CHARLES SMITH: I see that, yes. 13 MS. JANE LANGFORD: Why did you do that? 14 DR. CHARLES SMITH: The -- the use of 15 parenthesis is a convention that I was taught that is 16 used to connote or to communicate information which a 17 pathologist cannot prove or verify by post-mortem 18 examination, but which may serve to explain some of the 19 anatomic findings at post-mortem examination. 20 MS. JANE LANGFORD: Where did you -- 21 COMMISSIONER STEPHEN GOUDGE: Where -- 22 yes. I was just going to ask where you were taught it. 23 DR. CHARLES SMITH: That began at West, 24 and I certainly saw it in -- in practice at the 25 University of Toronto as well.

1 COMMISSIONER STEPHEN GOUDGE: And that 2 would have been on, if I can put it this way, the 3 surgical side of pathology, as opposed -- 4 DR. CHARLES SMITH: It's used in both 5 sides, actually, yes, in surgical and autopsy pathology. 6 7 CONTINUED BY MS. JANE LANGFORD: 8 MS. JANE LANGFORD: And was it your 9 general practice to include information that could not be 10 definitively proven by the autopsy findings itself in 11 brackets? 12 DR. CHARLES SMITH: I didn't do it 13 consistently, no. I did it from time to time when I 14 thought it would be helpful, but I certainly didn't do it 15 anywhere near as often as -- as I could have. 16 MS. JANE LANGFORD: And turning to the 17 Tiffani case for a moment, Dr. Smith, and specifically, 18 your post-mortem report, which is, Mr. Registrar, at 19 005589, and this is Tab 3 of the Tiffani binder, and 20 specifically, page 3 of your autopsy report. 21 Do you have that, Dr. Smith? 22 DR. CHARLES SMITH: I have it, yes. 23 MS. JANE LANGFORD: Now, in this case, 24 Dr. Smith, you listed your abnormal findings and 25 diagnosed the cause of death as asphyxia, but you

1 included a notanda that reads: 2 "The autopsy findings point to an 3 asphyxial mode of death, the etiology 4 of which cannot be determined on this 5 examination. Of note, are the presence 6 of bilateral healing, rib fractures, 7 which in the absence of an adequate 8 explanation are considered to be non- 9 accidental in nature." 10 MS. JANE LANGFORD: Do you see that? 11 DR. CHARLES SMITH: Yes, I do. 12 MS. JANE LANGFORD: Why did you include 13 this notanda which expressly states your uncertainty as 14 to the etiology of the asphyxia in this case and not in 15 some of the other asphyxia cases? 16 DR. CHARLES SMITH: I -- I understand 17 your question. There are three (3) purposes to the 18 notanda, or three (3) reasons why it would be here, I 19 should say. 20 The first is that I didn't do this autopsy 21 myself. It was the second autopsy so essentially, it's a 22 consultation report. And it was my practice in a 23 consultation report to make a comment, where -- where I 24 felt it appropriate, that would help understand my 25 opinion or the limits of my opinion or somehow

1 communicate information that otherwise might not be 2 understood by simply reading the report. So I often 3 wrote a notanda in a consultation. 4 The second is that I -- I wanted to, 5 specifically, draw out here, the fact that, while there 6 were findings that would support asphyxia, I -- by saying 7 it's an asphyxial mode of death, I wanted to communicate 8 that this is not a clear and concise diagnosis. 9 And indeed, I did not have clear evidence 10 or any evidence of hemorrhage involving the head and neck 11 region and I -- and I didn't have a history, so I only 12 had one (1) of the three (3) components so -- so I wanted 13 to communicate caution or uncertainty. 14 And the third thing I wanted to do is I 15 wanted to be sure that the reader or the investigator, 16 whoever, would understand my suspicions about the case 17 and so that's why I drew attention to the -- the healing 18 fractures. 19 MS. JANE LANGFORD: Now, you mentioned 20 that you wanted to be helpful in particular in providing 21 these explanations -- 22 DR. CHARLES SMITH: Mm-hm. 23 MS. JANE LANGFORD: -- in a consultation 24 report -- 25 DR. CHARLES SMITH: Mm-hm.

1 MS. JANE LANGFORD: -- but would that not 2 have been equally important in a post-mortem report 3 itself? 4 What is the difference between a 5 consultation report and a post-mortem report? 6 DR. CHARLES SMITH: The -- the format or 7 the method of communicating in a post-mortem report is -- 8 is mandated by the -- the form as prescribed under the 9 Coroners Act and -- and we were discouraged from making 10 commentary or adding -- adding history to those reports. 11 It was really to be a -- a report of just pure anatomic 12 findings or anatomic and -- and relative laboratory 13 findings. 14 COMMISSIONER STEPHEN GOUDGE: Discouraged 15 by...? 16 DR. CHARLES SMITH: The -- the 17 instruction from the Office of the Chief Coroner or the 18 Chief Forensic Pathologist. Yes. 19 20 CONTINUED BY MS. JANE LANGFORD: 21 MS. JANE LANGFORD: Dr. Smith, do you 22 believe your use of asphyxia in the 1990s in the Delaney, 23 Tiffani, Katharina, Kenneth, Tamara, Baby M and Baby F 24 cases was reasonable? 25 DR. CHARLES SMITH: Yes, I think it was.

1 I believe that it was in line with the practice standards 2 at the time. 3 They may have been inadequate, but that 4 was -- that was a normal or accepted practice and so I 5 think I was in the mainstream of -- of my -- of my work 6 pattern when I did that. 7 COMMISSIONER STEPHEN GOUDGE: Would you 8 have got that, Dr. Smith, from going back and looking at 9 old post-mortem reports where you saw -- I mean, I don't 10 know whether you did or not -- cause of death as 11 asphyxia? That is -- 12 DR. CHARLES SMITH: Yes, that's -- 13 COMMISSIONER STEPHEN GOUDGE: -- who 14 taught you that -- 15 DR. CHARLES SMITH: Yeah, that's -- 16 COMMISSIONER STEPHEN GOUDGE: -- this 17 diagnosis was one that ought to be made in certain 18 circumstances? 19 DR. CHARLES SMITH: Yes, that's part of 20 it. But at the same time, by the time that 1993 or 1994 21 came along, I had seen many, many autopsy reports, not 22 only from my colleagues but elsewhere in Ontario, that 23 would have come to things like the Paediatric Death 24 Review Committee so I was -- was quite confident in that. 25 I paid particular attention to the reports

1 of people like Dr. Chitra Rao from Hamilton or Dr. Blair 2 Carpenter from Ottawa because I believed that -- that I 3 could learn from them and hone my skills. 4 So -- so I -- I believe I was doing what I 5 perceived to be the best practice. 6 7 CONTINUED BY MS. JANE LANGFORD: 8 MS. JANE LANGFORD: And when you say 9 inadequate, Dr. Smith, do you believe your post-mortem 10 reports in these asphyxia cases are clear on their face 11 as to the basis of your conclusion as to cause of death? 12 DR. CHARLES SMITH: No. No, they're not. 13 And I think that a good post-mortem report should be 14 interpretable without needing the pathologist who did the 15 autopsy to actually interpret it. 16 And -- and, so the reports are lacking in 17 that they -- they may look more like just a list of 18 anatomic findings without any sense of the reasoning, or 19 the thought processes, or the weighting of information 20 that's gone on. 21 So they -- some of my reports are easily 22 understood on their own. In cases like asphyxia, no. 23 No. They -- they lack that. 24 MS. JANE LANGFORD: Turning, Dr. Smith, 25 to Sharon's case.

1 (BRIEF PAUSE) 2 3 MS. JANE LANGFORD: You are aware, Dr. 4 Smith, that there are a number of opinions from 5 pathologists who conclude that some, if not all, of the 6 wounds on Sharon's body were caused by a dog? 7 DR. CHARLES SMITH: I am aware of that, 8 yes. 9 MS. JANE LANGFORD: What was your 10 original opinion on the nature of Sharon's wounds? 11 DR. CHARLES SMITH: They were not dog 12 bites. 13 MS. JANE LANGFORD: And what is your 14 opinion today as to the nature of Sharon's wounds? 15 DR. CHARLES SMITH: I believe the 16 majority, if not all, could be explained on the basis of 17 a dog attack. 18 MS. JANE LANGFORD: And did you, Dr. 19 Smith, consider whether Sharon was killed by a dog attack 20 when you performed the original autopsy in this case? 21 DR. CHARLES SMITH: No, I didn't. 22 MS. JANE LANGFORD: And why not? 23 DR. CHARLES SMITH: Well, that 24 consideration was not given to me, and the marks on her 25 body I did not interpret as being in the pattern of -- of

1 a dog bite. 2 COMMISSIONER STEPHEN GOUDGE: Explain the 3 consideration was not given to you. What do you mean by 4 that? 5 DR. CHARLES SMITH: Oh, I'm -- I'm sorry. 6 I should have been -- been less vague. 7 The history that had been provided to me 8 didn't bring attention to the possibility that a dog had 9 -- had attacked Sharon. 10 So I was -- earlier, I thought that I was 11 aware at the post-mortem examination that there was a 12 dog. I think -- I think that -- that was incorrect. 13 I believe I only became aware that there 14 was a dog in the home, even, some time after I did the 15 autopsy. 16 COMMISSIONER STEPHEN GOUDGE: Thank you. 17 18 CONTINUED BY MS. JANE LANGFORD: 19 MS. JANE LANGFORD: At the time you did 20 Sharon's autopsy, Dr. Smith, what experience had you had 21 with dog attacks? 22 DR. CHARLES SMITH: Very little. I had 23 seen a couple cases many years earlier. 24 MS. JANE LANGFORD: What about your 25 experience in analyzing penetrating wounds?

1 DR. CHARLES SMITH: That was similar. I 2 had seen one (1) or two (2) cases; not in the context of 3 an older child, but rather a newborn baby who had 4 suffered penetrating injuries or stab wounds. So it was 5 also very limited. 6 COMMISSIONER STEPHEN GOUDGE: I take it 7 that is, in a general sense, Dr. Smith, the difference 8 between pediatric pathology and forensic pathology; the 9 emphasis on disease in pediatric pathology -- 10 DR. CHARLES SMITH: Yes. 11 COMMISSIONER STEPHEN GOUDGE: -- and the 12 emphasis on injury in forensic pathology. 13 DR. CHARLES SMITH: That's it exactly. 14 15 CONTINUED BY MS. JANE LANGFORD: 16 MS. JANE LANGFORD: And so why, Dr. 17 Smith, did you not refer Sharon's case to a pathologist 18 with more experience in analyzing penetrating wounds? 19 DR. CHARLES SMITH: There would be a 20 couple of reasons for that. 21 First of all, though I knew I was 22 inexperienced, retrospectively, I -- I didn't realize how 23 extraordinarily limited was my knowledge or expertise, 24 and so I -- I didn't recognize how potentially dangerous 25 it was, if I can use that expression, to -- to do that

1 work. 2 And the second, I think, is that I was 3 comforted by the fact that the Chief Coroner, who wanted 4 me to do the autopsy, believed that I had the -- the 5 expertise, the ability, to do so. 6 MS. JANE LANGFORD: You testified, Dr. 7 Smith, at the preliminary inquiry that there was no way 8 that Sharon's wounds could have been caused by a dog 9 attack. 10 So clearly by that time, Dr. Smith, the 11 explanation had been presented to you that Sharon's death 12 could potentially have been a dog attack. 13 When was that suggestion seriously 14 presented to you? 15 DR. CHARLES SMITH: It was sometime after 16 the autopsy; whether it was a few weeks or a few months, 17 I don't know, but it was -- certainly there was a 18 significant time gap between the autopsy and -- and that 19 suggestion. 20 MS. JANE LANGFORD: And was it before or 21 after you authored your post-mortem report in this case? 22 DR. CHARLES SMITH: It was before. 23 MS. JANE LANGFORD: Dr. Robert Wood, a 24 forensic odontologist, also gave an opinion in this case 25 that Sharon's wounds were not dog wounds.

1 Did you know of that opinion? 2 DR. CHARLES SMITH: Yes, I did. 3 MS. JANE LANGFORD: When did you learn of 4 Dr. Wood's opinion? 5 DR. CHARLES SMITH: Well, I can't give 6 you a date, but I learned of -- of his opinion at a -- at 7 a discussion or a meeting that was held in the Coroner's 8 Building sometime prior to me authoring my report. 9 MS. JANE LANGFORD: Who was present at 10 this meeting, to the best of your recollection? 11 DR. CHARLES SMITH: I don't -- I don't 12 have a detailed recollection of the meeting. As I 13 recall, it was chaired by Dr. Jim Cairns. Certainly Dr. 14 Wood was there and I was there, Dr. Chiasson, as Chief 15 Forensic Pathologist, was there. Mr. Blenkinsop was 16 there. 17 There could well have been others, and it 18 wouldn't surprise me if there were others, but I don't -- 19 I don't have a recollection of that now. 20 MS. JANE LANGFORD: And do you recall 21 what Dr. Wood said at that meeting? 22 DR. CHARLES SMITH: I'm sorry. I don't 23 recall his -- his specific words, but he was -- he was 24 very emphatic in his opinion that the wounds were not at 25 all consistent with or -- or could not have been dog

1 bites; he excluded that possibility very definitively. 2 MS. JANE LANGFORD: And what do you 3 recall of Dr. Chiasson's opinion expressed at that 4 meeting? 5 DR. CHARLES SMITH: Again, I can't 6 remember his words, but -- but his opinion aligned itself 7 with Dr. Wood's opinion, so he likewise regarded them as 8 dog bites. 9 COMMISSIONER STEPHEN GOUDGE: Sorry, 10 "aligned" them? 11 DR. CHARLES SMITH: I -- I said aligned 12 himself. Now, that -- that was -- I'm sorry, sir. Yeah, 13 he -- he indicated -- or I understood him to be in 14 agreement with -- with Dr. Wood's opinion. 15 COMMISSIONER STEPHEN GOUDGE: That they 16 were not dog bites? 17 DR. CHARLES SMITH: That they were not 18 dog bites, I'm sorry, yes. 19 20 CONTINUED BY MS. JANE LANGFORD: 21 MS. JANE LANGFORD: You said Barry 22 Blenkinsop was present. I understand Mr. Blenkinsop was 23 the pathology assistant who worked with you on this case? 24 DR. CHARLES SMITH: Yes, he was. 25 MS. JANE LANGFORD: What was your opinion

1 of Mr. Blenkinsop's skills and experiences as a pathology 2 assistant? 3 DR. CHARLES SMITH: I hold him in the 4 highest regard. I've had the -- the honour of working 5 with two (2) such people, Dr. Perrin, who you would have 6 met here, and Dr. Blenkin -- or Mr. Blenkinsop. 7 Barry's knowledge, experience, insight, 8 techniques and skills are -- are unsurpassed. I hold him 9 -- or held him in the highest regard. 10 MS. JANE LANGFORD: And what, if 11 anything, do you recall of Mr. Blenkinsop's opinions as 12 to the nature of Sharon's wounds expressed at that 13 meeting? 14 DR. CHARLES SMITH: He did not think they 15 could be attributed to dog bites, either. 16 MS. JANE LANGFORD: What, if any, affect, 17 Dr. Smith, did these opinions of Dr. Chiasson, Dr. Wood, 18 and Mr. Blenkinsop have on your own opinion as to the 19 nature of Sharon's wounds? 20 DR. CHARLES SMITH: They solidified it; 21 they made it much more concrete. 22 MS. JANE LANGFORD: Have you had occasion 23 to review your testimony at the preliminary inquiry into 24 the -- into the charges against Sharon's mother? 25 DR. CHARLES SMITH: I have, yes.

1 MS. JANE LANGFORD: How would you 2 describe your testimony sitting here today? 3 DR. CHARLES SMITH: I believe I was too 4 defensive or dogmatic or adversarial, and I was certainly 5 too concrete. I don't believe that I clearly 6 communicated my own uncertainty, but rather, I -- I think 7 I communicated the certainty of others. 8 COMMISSIONER STEPHEN GOUDGE: Why, Dr. 9 Smith? 10 DR. CHARLES SMITH: Part of it was before 11 going into court, the -- the Crown attorney, Jack -- last 12 name starts with a "Mc" I think, had indicated -- 13 MS. JANE LANGFORD: It's Mr. McKenna. 14 DR. CHARLES SMITH: -- McKenna, thank you 15 -- had indicated to me that -- that the defence counsel 16 wanted to make a big issue of this. And I had expected 17 Dr. Wood to testify at the preliminary hearing and I was 18 quite surprised to learn he didn't, and Mr. McKenna said, 19 We want you to give that opinion. We want you to do 20 that. 21 And I -- I wondered why Dr. Wood wasn't 22 going to testify, and -- and Mr. McKenna said that he did 23 not want to bring Mr. -- or Dr. Wood in because he didn't 24 want to suggest there was any credibility to this, so he 25 wanted me simply to present that opinion without having

1 to bring Dr. Wood in. 2 So I -- I confess, I think I was misguided 3 in what I -- in what I was doing and I recognize that. 4 5 CONTINUED BY MS. JANE LANGFORD: 6 MS. JANE LANGFORD: Dr. Smith, it wasn't 7 until January of 2001, when you apparently advised the 8 Crown that you were unable to dispute the defence experts 9 who opined that Sharon's death was caused by a dog 10 attack. 11 Why did it take you so long to concede 12 this? 13 DR. CHARLES SMITH: When I authored -- or 14 was -- was told to author a second report, I acknowledged 15 in that report that -- that many wounds were attributable 16 to a dog bite, and I accepted the opinion of others on 17 that. However, I -- I remained perplexed about some of 18 the wounds, and I did not think I could reasonably 19 explain all of the wounds on the basis of a dog attack. 20 And as I looked at -- at the reports of 21 Dr. Wood and Dr. Chiasson, I could find some support or 22 some comfort in that position, and so that was the 23 position which I -- which I held. I didn't think they 24 could all be explained, and I believed others had had 25 similar questions.

1 In my -- in my conversation or 2 conversations with Mr. Bradley, I came to learn from him 3 that, in fact, Dr. Wood was no longer of that opinion. 4 Dr. Chiasson, seemingly, didn't support that -- or that's 5 how I understood the conversation. And so I came to 6 realize that that I was, essentially, the only person who 7 -- who was of that opinion. 8 And while I remained perplexed in 9 explaining some of the injuries, and especially the 10 thoracic inlet injury, I realized I was the only person 11 who had seen that. And I didn't feel that I had the -- 12 the expertise or the confidence to stand up and give that 13 opinion in light of the fact that other people -- defence 14 experts, who had much, much more experience in the area - 15 - were strongly of the opinion that -- that they were 16 explicable on the basis of a dog attack. 17 And therefore, my own inexperience and 18 uncertainty, coupled with the fact that there was no 19 longer support for that opinion in the presence of strong 20 contrary opinions, caused me to indicate to Mr. Bradley, 21 I -- I was not comfortable going forward in that role. 22 MS. JANE LANGFORD: And, Dr. Smith, 23 before we leave this case, is there anything else you 24 wish to add about it? 25 DR. CHARLES SMITH: Yes. I -- I realize

1 that my mistakes -- my diagnostic error and my testimony 2 in Court were not helpful. I recognize that that created 3 problems for the investigators, for the Judicial System, 4 and more importantly, for Sharon's mom, and for that, I'm 5 truly sorry. 6 MS. JANE LANGFORD: Mr. Commissioner, 7 this would be a nice time to break, if that's convenient 8 for you? 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Langford. We will rise then, for fifteen (15) minutes. 11 12 --- Upon recessing at 11:17 a.m. 13 --- Upon commencing at 11:33 a.m. 14 15 THE REGISTRAR: All rise. Please be 16 seated. 17 COMMISSIONER STEPHEN GOUDGE: Ms. 18 Langford...? 19 20 CONTINUED BY MS. JANE LANGFORD: 21 MS. JANE LANGFORD: Turning to Valin's 22 case, Dr. Smith. 23 DR. CHARLES SMITH: Yes. 24 25 (BRIEF PAUSE)

1 MS. JANE LANGFORD: You did not perform 2 the original post-mortem examination in this case? 3 DR. CHARLES SMITH: No, I did not. 4 MS. JANE LANGFORD: Were you consulted by 5 the police prior to charges being laid against Mr. 6 Mullins-Johnson? 7 DR. CHARLES SMITH: No, I wasn't. 8 MS. JANE LANGFORD: Did you testify at 9 the preliminary inquiry and to the charges against Mr. 10 Mullins-Johnson? 11 DR. CHARLES SMITH: No. 12 MS. JANE LANGFORD: But we know you were 13 consulted by Dr. Marci Mian to review certain photographs 14 taken at Valin's autopsy, after which you co-authored a 15 report with her? 16 DR. CHARLES SMITH: That's correct. 17 MS. JANE LANGFORD: And you were asked by 18 the Crown to testify at the trial? 19 DR. CHARLES SMITH: That's right. 20 MS. JANE LANGFORD: And if you turn to 21 Tab 1 of Valin's binder; the overview report, Dr. Smith. 22 Mr. Commissioner, that's PFP -- sorry, Mr. Commissioner. 23 Mr. Registrar, that's PFP144329; 144329. 24 MR. MARK SANDLER: 327. 25

1 CONTINUED BY MS. JANE LANGFORD: 2 MS. JANE LANGFORD: I've been corrected. 3 I'm sorry. 327. And specifically page 45. 4 5 (BRIEF PAUSE) 6 7 DR. CHARLES SMITH: I have it. 8 MS. JANE LANGFORD: Dr. Smith, you 9 rendered opinions on three (3) issues in Valin's case, 10 and your testimony is summarized at -- beginning at 11 paragraph 91 of the overview report. 12 Firstly, Dr. Smith, you testified that you 13 could not be precise about Valin's time of death, and 14 that the time could have been more or less than Dr. 15 Versia's (Phonetic) fifteen (15) to seventeen (17) hour 16 estimate, correct? 17 DR. CHARLES SMITH: That's correct. 18 MS. JANE LANGFORD: Do you continue to 19 believe your opinion on that issue was correct? 20 DR. CHARLES SMITH: I do, yes. 21 MS. JANE LANGFORD: You also testified, 22 Dr. Smith, that Valin was sexually assaulted shortly 23 before death. 24 Do you continue to believe your opinion on 25 that issue was correct?

1 DR. CHARLES SMITH: No, I don't. 2 MS. JANE LANGFORD: And what specifically 3 were you mistaken about? 4 DR. CHARLES SMITH: I believe that I did 5 not recognize, or -- or -- no, let me start again. 6 I mistook post-mortem changes in the anal- 7 genital region for being evidence of pre-mortem injury, 8 and I attributed the fissuring and laceration, and -- and 9 hemorrhage, and anal gapping or dilatation as being a 10 pre-mortem injury, when I now recognize that is 11 attributable and -- and should have been referred to as - 12 - as post-mortem artifact. 13 MS. JANE LANGFORD: Do you think your 14 opinion was reasonable on this issue at the time it was 15 given? 16 DR. CHARLES SMITH: I do, yes. The -- 17 the science about -- about post-mortem anal changes, and 18 -- and in particular, one (1) seminal paper had not been 19 published at that time. 20 And I believe that my -- my own opinion as 21 reflected in the opinion of others who made findings in 22 the anal-genital region which were attributed to injury, 23 that likewise are -- are now recognized to be post-mortem 24 change. 25 MS. JANE LANGFORD: You opined, lastly,

1 that Valin died from asphyxia consistent with manual 2 strangulation. 3 DR. CHARLES SMITH: That's correct. 4 MS. JANE LANGFORD: Do you continue to 5 believe that that opinion was correct? 6 DR. CHARLES SMITH: No, I don't. 7 MS. JANE LANGFORD: And what specifically 8 were you mistaken about in that regard? 9 DR. CHARLES SMITH: I mistook changes in 10 post-mortem lividity as being evidence of -- of 11 hemorrhage -- facial hemorrhage and -- and neck 12 hemorrhage. The reason for that, I believe, is that the 13 -- the degree of post-mortem lividity was so florid and 14 so -- so extreme; it was beyond anything I had ever seen 15 in a pediatric case; that I did not recognize the 16 possibility that post-mortem lividity could be a 17 reasonable explanation. 18 I certainly knew that post-mortem lividity 19 could mimic pre-mortem findings, but -- but I had never 20 seen anything like this, and I was not aware in the 21 literature, nor am I yet aware, that there is literature 22 which helps distinguish things like neck hemorrhage from 23 post-mortem change. 24 MS. JANE LANGFORD: Dr. Smith, you are 25 aware that Mr. Mullins-Johnson was convicted for Valin's

1 death? 2 DR. CHARLES SMITH: I am aware of that, 3 yes. 4 MS. JANE LANGFORD: And what do you wish 5 to say about that today? 6 7 (BRIEF PAUSE) 8 9 DR. CHARLES SMITH: Though I did not do 10 the first autopsy on Valin, I did give an opinion and I 11 testified in Court, and therefore, I believe I 12 contributed to a miscarriage of justice, and to whatever 13 degree the jury may have considered my opinion in their 14 decision, I'm sorry, and I -- and I do apologize to -- to 15 Mr. Mullins. 16 17 (BRIEF PAUSE) 18 19 MS. JANE LANGFORD: Now, Mr. 20 Commissioner, I'm advised by my co-counsel that I 21 misdirected you while looking at the pie chart. We 22 suggested that Dr. Smith found 5.6 percent of cases to be 23 criminally suspicious or homicidal. 24 That number should be 6.8 because you 25 should add to that the infanticide abandoned body cases,

1 the 1.2 percent. So it should be 5.6 percent and -- plus 2 1.2 percent equals 6.8 percent. 3 And I -- I'm assured that -- 4 COMMISSIONER STEPHEN GOUDGE: 1.2 or 1.6? 5 I'm just looking at the pie chart. 6 MS. JANE LANGFORD: I'm sure we're going 7 to give you a coloured copy of it so you can read it. 8 It's 1.6, you're right. 9 COMMISSIONER STEPHEN GOUDGE: Okay, so I 10 just add those two -- 11 MS. JANE LANGFORD: So 1.6 plus 5.6. 12 COMMISSIONER STEPHEN GOUDGE: -- together 13 to get the criminally suspicious. 14 MS. JANE LANGFORD: Yes. And we will 15 give you a coloured copy that's a little easier -- more 16 easy to read. 17 COMMISSIONER STEPHEN GOUDGE: Thank you. 18 19 CONTINUED BY MS. JANE LANGFORD: 20 MS. JANE LANGFORD: Thank you. Turning 21 to Joshua's case, Dr. Smith, and specifically, if you 22 could take your binder for that case out and turn to your 23 post-mortem report, which is at Tab 2. 24 Mr. Registrar, the document number is 25 008524. And specifically, Dr. Smith, page 6 of your

1 post-mortem report. 2 DR. CHARLES SMITH: I have that, yes. 3 MS. JANE LANGFORD: Now, Dr. Smith, you 4 opined that Joshua died from asphyxia and that you were 5 suspicious that it was a non-accidental death. 6 DR. CHARLES SMITH: That's correct. 7 MS. JANE LANGFORD: What was your 8 diagnosis of asphyxia based on in Joshua's case? 9 DR. CHARLES SMITH: It was, again, the -- 10 the three (3) components; there were the non-specific 11 autopsy -- or non-specific intrathoracic findings at 12 autopsy of the petechial hemorrhage. 13 In ad -- in addition, there was focal or 14 microscopic hemorrhage in the neck tissues which I used 15 as the second component of that. And then I was given a 16 history that his mother had threatened to suffocate or 17 smother or strangle him prior to that event. 18 MS. JANE LANGFORD: Dr. Smith, do you 19 continue to believe that the diagnosis of asphyxia in 20 Joshua's case was a correct one? 21 DR. CHARLES SMITH: No, I believe it's 22 wrong. 23 MS. JANE LANGFORD: And what part, if 24 any, of the diagnosis was wrong or your basis for your 25 conclusion was wrong?

1 DR. CHARLES SMITH: Oh, I see. The -- of 2 the three (3) components; the petechial hemorrhages of 3 the thoracic viscera stand, but they're not sufficient of 4 themselves. 5 The -- the hemorrhage in the neck tissues 6 -- the -- the microscopic change -- I believe is better 7 attributable to post-mortem artifact. 8 And the -- the third component is that 9 while there was this history of a threatened action, I 10 believe that it was sufficiently remote in time that I 11 should not have given it the weight that I did. 12 MS. JANE LANGFORD: And you referred to 13 the neck hemorrhage as being more likely post-mortem. 14 Can you explain your mistake in thinking that what you 15 saw was neck hemorrhage as opposed to an artifact? 16 DR. CHARLES SMITH: I think I can. 17 This is more of the art of pathology than 18 the science of pathology. 19 The potential for neck hemorrhage can -- 20 can exist and does exist in -- in every autopsy. And 21 depending on the technique which is used, the potential 22 for the severity of that is greater or lesser, in not 23 only the -- the actual dissection technique, in terms of 24 the -- of the overall autopsy but also the technical 25 ability of the -- of the person doing the dissection, the

1 autopsy or the autopsy assistant. 2 So each pathologist has to establish for 3 himself or herself a threshold below which, when they see 4 neck hemorrhage, they attributed it -- they attribute it 5 to artifact, and above which, they discount the 6 possibility of artifact. 7 And -- but that threshold is dependent on 8 any individual case; on the pathologist, on the 9 techniques, on the situation. And so that's the art; is 10 each of us sets the threshold at whatever level we 11 believe to be appropriate. 12 And I believe that in Joshua's case, I -- 13 I think my error -- I believe my error was that, in his 14 case, I set the threshold too low. That is, I should 15 have had a -- a greater tolerance for the possibility of 16 post-mortem artifact when trying to come down on the side 17 of whether it was artifact or real. And so I think my 18 sensitivity for artifact was set too low on -- on -- and 19 as part of the art of interpretation. 20 MS. JANE LANGFORD: Why did you set -- do 21 you think you set the threshold too low? 22 DR. CHARLES SMITH: Too low. 23 MS. JANE LANGFORD: Is there something 24 particular about what you did? 25 DR. CHARLES SMITH: I -- I think that --

1 I think that I was more confident in my ability to avoid 2 artifact that I should have been; my -- my technical 3 ability. 4 MS. JANE LANGFORD: Apart from the 5 history and the neck hemorrhage, were there other reasons 6 you testified that Joshua's death was likely non- 7 accidental? 8 DR. CHARLES SMITH: I had other 9 suspicions, yes. 10 Before doing the autopsy, there was 11 evidence of an avulsion fracture of the -- of the ankle 12 region; the left tibia. And that pattern of injury has a 13 high association with non-accidental injury in -- in a 14 boy of this age and so that attuned me to the possibility 15 that something untoward had happened to him. 16 And secondly, at autopsy, at the time of 17 dissection, I saw evidence of scalp contusions and then 18 hemorrhage inside the skull, which drew my -- my mind to 19 the possibility of head injury and non-accidental head 20 injury. And this was compounded by the microscopic 21 examination where I saw a structure which had the 22 appearance of a healing skull fracture. And that 23 structure in the presence of hemorrhage, which points to 24 an injury, I interpreted to be evidence of a healing 25 skull fracture.

1 MS. JANE LANGFORD: What do you say today 2 about the basis of your suspicions that Joshua's death 3 was likely non-accidental? 4 DR. CHARLES SMITH: They are erroneous. 5 The -- the avulsion fracture stands, but it is remote in 6 time from the circumstances or from the event of his 7 death. And so it's not possible to correlate one with 8 the other. 9 While the -- the findings of -- of 10 hemorrhage in the -- in the cranial region I believe are 11 correct, in and of themselves they wouldn't -- they 12 shouldn't have allowed that suspicion to stand. 13 But my error was the skull fracture, and - 14 - and I now realize that -- that that pattern of 15 histology, that architecture, is also the architecture of 16 a -- of a growing suture line in an infant. 17 MS. JANE LANGFORD: And can you explain, 18 Dr. Smith, why you were unable to make that 19 determination, and instead determine that what you saw 20 was a skull fracture? 21 DR. CHARLES SMITH: Yes. At -- at the 22 time I was unaware of any pediatric literature or 23 pediatric pathology literature which -- which showed that 24 in fact there was a basis by which the -- the infant's 25 suture line was essentially identical to a -- to a

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1 healing skull fracture. 2 MS. JANE LANGFORD: Now, Dr. Smith, the 3 skull fracture is not listed as an abnormal finding in 4 your post-mortem report, correct? 5 DR. CHARLES SMITH: That's correct. 6 MS. JANE LANGFORD: How can you explain 7 that omission? 8 DR. CHARLES SMITH: The -- the -- the 9 skull fracture was a finding that I made on a 10 representative sample of skull. When -- when the skull 11 sample was taken, it was -- it was, as I recall, taken 12 really to try and assess the -- the evidence -- the -- 13 the naked eye observation that there had been hemorrhage 14 in -- inside the skull. 15 And so the section, I believe, happened to 16 be across the suture line, but it was simply a 17 representative section that was taken. 18 MS. JANE LANGFORD: And when did you 19 discover the skull fracture in a representative section? 20 DR. CHARLES SMITH: Sometime after I had 21 completed all of the rest of the examination. I received 22 the -- the skull tissues from the histology lab; it had 23 been delayed in processing. 24 And -- and so I looked at it at that time. 25 Realized there was -- there -- there was this finding

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1 that I -- I don't believe I had anticipated, attributed 2 it to a skull fracture 3 and -- but that was after the completion of the rest of 4 my examination. 5 MS. JANE LANGFORD: Is there anything you 6 could have done to have prevented the omission of listing 7 the skull fracture in your post-mortem report? 8 DR. CHARLES SMITH: There's a couple 9 things I could have done. While it was a representative 10 section and -- and it's not typical to indicate where a 11 representative section is taken from, this is an unusual 12 location for a representative section. 13 And so I should have -- or could have 14 indicated in my report that there was a sample of -- of 15 skull taken for histologic analysis. Had I done that, I 16 would have seen that there was a missing piece of 17 information when I completed the report. 18 The second thing is that the skull tis -- 19 the skull tissue would have been on the histology 20 blocking sheet or cutting sheet, whatever the term is, 21 and -- and had I gone line by line through that sheet 22 rather than just use it as a -- as a guide to the 23 tissues, I would have realized that there was a tissue 24 that was missing. 25 MS. JANE LANGFORD: The reviewers, Dr.

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1 Smith, concluded that the cause of death should have been 2 labelled "undetermined," but they also opined that Joshua 3 likely suffocated accidentally as a result of his unsafe 4 sleeping arrangements. 5 Did you consider that as a possible 6 explanation for Joshua's death at the time? 7 DR. CHARLES SMITH: Well, I did; I -- I 8 recognized that unsafe sleep environments were a possible 9 cause. 10 Certainly at that time I was aware that 11 things like waterbeds were -- were dangerous or a 12 potentially dangerous sleep environment, and the -- the 13 knowledge or understanding of an unsafe sleep environment 14 was growing. But I don't believe at the time that I 15 authored this report I -- I understood that his specific 16 sleep environment was as dangerous as it -- as it could 17 have been, and I believe that I focussed more on the 18 findings that were more suspicious, leg fracture and 19 skull fracture, as opposed to the possibility of this 20 environmental risk. 21 MS. JANE LANGFORD: And before we leave 22 this case, Dr. Smith, is there anything you wish to add? 23 DR. CHARLES SMITH: Yes. 24 I deeply regret the -- the diagnostic 25 error that I made and the confusion that is attendant

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1 upon it. I understand that it has caused problems for 2 the investigators and for the judicial system, but most 3 importantly, it has caused a significant problem for 4 Joshua's family and Joshua's mother, and for that, I -- I 5 am truly sorry. 6 7 (BRIEF PAUSE) 8 9 MS. JANE LANGFORD: Turning to Paolo, and 10 specifically, your consultation report, Dr. Smith, which 11 is at Tab 5. Mr. Registrar, PFP002652. And page 5, Dr. 12 Smith. 13 DR. CHARLES SMITH: I have it, yes. 14 MS. JANE LANGFORD: Dr. Smith, you 15 concluded that Paolo's cause of death was undetermined, 16 but that the presence of various bone fractures were 17 suspicious for non-accidental injury. Is that correct? 18 DR. CHARLES SMITH: That's correct. 19 MS. JANE LANGFORD: And one (1) of the 20 questions you were asked by the Crown during your 21 testimony at the trial of Paolo's father was the age of 22 one (1) of those fractures, specifically, the left 23 parietal fracture, correct? 24 DR. CHARLES SMITH: That's correct. 25 MS. JANE LANGFORD: And you opined that

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1 the left parietal fracture was a recent injury. 2 DR. CHARLES SMITH: That's correct. 3 MS. JANE LANGFORD: On what basis did you 4 reach that conclusion? 5 DR. CHARLES SMITH: I -- I did not base 6 that on the -- on the skull fracture itself, but rather I 7 used an indirect line of reasoning. 8 And if one assumed that the skull fracture 9 occurred at the same time as the injuries immed -- or as 10 the tissues immediately adjacent to the skull fracture 11 were injured, then it may be reasonable to conclude that 12 the skull fracture occurred at the same time that the -- 13 that the soft tissues were injured. 14 MS. JANE LANGFORD: Why did you use an 15 indirect approach rather than a direct approach of aging 16 the skull fracture itself? 17 DR. CHARLES SMITH: I didn't think I 18 could use a direct approach. 19 MS. JANE LANGFORD: Why? 20 DR. CHARLES SMITH: Well, the -- the 21 direct approach that I would use would be different if 22 there had not been a prolonged interval between death and 23 post-mortem examination. 24 I would do naked eye observation and 25 attempt to get a sense for the degree if knitting or

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1 callus formation or how firm a facture line may be by 2 gross -- or naked eye examination, and that would 3 supported by the microscopic examination, looking for 4 cellular detail. In -- in -- 5 COMMISSIONER STEPHEN GOUDGE: Of the 6 skull. 7 DR. CHARLES SMITH: Of the skull. Of 8 looking for the white blood cells and the other cells 9 that lay down connective tissue and bone, yes. 10 In -- in this case, because of the 11 prolonged interval, I knew that there would be no 12 cellular detail that would be of any value. There -- 13 there would be no cellular detail period, I should say. 14 And my difficulty with the naked eye 15 observation is that I believed that there was the 16 potential for artifactual change that could occur along 17 the edge of bones, and involving fracture sites that 18 would be attendant upon a prolonged death to post-mortem 19 interval, depending on what conditions the -- the body 20 was in, and I didn't feel I had expertise to make an 21 evaluation, which is more of a, perhaps, of an 22 anthropologic type than a pediatric pathology type. 23 MS. JANE LANGFORD: And you've referred 24 to the prolonged interval between death to exhumation. I 25 understand that was about fourteen (14) months?

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1 DR. CHARLES SMITH: That's correct. 2 MS. JANE LANGFORD: Dr. Smith, what is 3 your opinion of your indirect or inferential approach 4 that you took in aging the skull fracture today? 5 DR. CHARLES SMITH: I -- I don't think it 6 was helpful. I think it -- it had the potential to be 7 misleading. 8 MS. JANE LANGFORD: You are aware, Dr. 9 Smith, that the reviewers were able to provide, by direct 10 examination, an age of the left parietal fracture? 11 DR. CHARLES SMITH: That's correct. 12 MS. JANE LANGFORD: Can you explain why 13 they were able to do so and you were not? 14 DR. CHARLES SMITH: They're forensic 15 pathologists and they, I presume, have much more 16 experience in dealing with the interpretation of boney 17 injuries than I, as a pediatric pathologist, have. 18 MS. JANE LANGFORD: Dr. Smith, you found 19 that Paolo's cause of death was undetermined, yet in your 20 testimony you offered two (2) possibilities to explain 21 his death: asphyxia and head injury. 22 Can you explain your rationale for giving 23 explanations for Paolo's death in circumstances where you 24 were unable to provide a definitive cause of death? 25 DR. CHARLES SMITH: Yes, I can.

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1 I was asked, as I recall, what possible ex 2 -- what were possible explanations and the only two (2) 3 that I could think of were head injury and asphyxia, 4 though I recognized that the evidence for either was not 5 strong. 6 For head injury, it was essentially the 7 brain weight; and asphyxia, I -- I didn't have the -- the 8 assurety that the soft tissue hemorrhage in the neck was 9 not an artifact. 10 But nevertheless, I was asked for that 11 possibility, and I believed that when I was asked a 12 question, that I could answer -- I should answer it and 13 it -- it did not occur to me that I should not speculate. 14 MS. JANE LANGFORD: You opined, Dr. 15 Smith, that there was evidence to support a conclusion 16 that Paolo had been subjected to chronic abuse. 17 What is your opinion of that testimony? 18 DR. CHARLES SMITH: I stand by -- by that 19 opinion today. 20 MS. JANE LANGFORD: And your conclusion 21 that Paolo's death was not likely from a natural cause? 22 DR. CHARLES SMITH: I stand by that 23 opinion. 24 MS. JANE LANGFORD: And your conclusion 25 that Paolo's death was not a SIDS death?

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1 DR. CHARLES SMITH: I stand by that 2 opinion. 3 MS. JANE LANGFORD: Before we leave 4 Paolo's case, Dr. Smith, is there anything you wish to 5 add? 6 DR. CHARLES SMITH: Yes. 7 8 (BRIEF PAUSE) 9 10 DR. CHARLES SMITH: I realize that my 11 approach to the -- to the skull fracture was unhelpful. 12 I realize that I should have acknowledged 13 my inability to age it directly and point it out to the 14 Court that -- that they should seek the opinion of -- of 15 others. 16 And I believe that in trying to offer up 17 explanations for death, that -- that may also have been 18 unhelpful in, to whatever degree my, my approach to the 19 skull fracture. 20 And my testimony was a factor in the 21 decision- making process of the jury and hence affected 22 Paolo's mother and father. I'm sorry for that. 23 MS. JANE LANGFORD: Turning to Jenna's 24 case, Dr. Smith, and specifically your post-mortem 25 report, which is at Tab 3. Mr. Registrar, that's

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1 PFP115087. And specifically, Dr. Smith, page 12 of your 2 post-mortem report. 3 DR. CHARLES SMITH: I have it, yes. 4 MS. JANE LANGFORD: Dr. Smith, you opined 5 that Jenna died from blunt abdominal trauma, and you 6 listed a number of abdominal injuries in a summary of 7 abnormal findings. Correct? 8 DR. CHARLES SMITH: That's correct. 9 MS. JANE LANGFORD: Did you ever identify 10 which of the several abdominal injuries suffered by Jenna 11 was the lethal injury? 12 DR. CHARLES SMITH: No, I didn't. 13 MS. JANE LANGFORD: Why not? 14 DR. CHARLES SMITH: I didn't think I 15 could. The -- the several tissues or organs that were 16 injured each had the potential to contribute to her 17 death. 18 And because I could not rule -- rule out a 19 contribution of any one (1) of those injuries, I did not 20 believe that I could then clearly point to a single organ 21 or a single injury that was responsible for her death. 22 MS. JANE LANGFORD: You are aware, Dr. 23 Smith, that there has been significant criticism of your 24 opinion as to the timing of the fatal abdominal injuries? 25 DR. CHARLES SMITH: I am, yes.

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1 MS. JANE LANGFORD: The reviewers 2 characterized your evidence to be that all of Jenna's 3 fatal injuries were twenty-four (24) to forty-eight (48) 4 hours old. 5 In your opinion, is that a fair 6 characterization of your evidence? 7 DR. CHARLES SMITH: No, I think that's a 8 misinterpretation of it. 9 MS. JANE LANGFORD: Why? 10 DR. CHARLES SMITH: I never said that 11 they were all twenty-four (24) to forty-eight (48) hours 12 old. I always recognized that some of the injuries were 13 much more acute or much more recent than that. 14 MS. JANE LANGFORD: And on what basis did 15 you say that some of the injuries were much more recent 16 than twenty-four (24) to forty-eight (48) hours old? 17 DR. CHARLES SMITH: There was differences 18 in the healing reaction microscopically. In some areas, 19 there was a well-advanced healing reaction. In other 20 areas, the healing reaction was absent or minimal. 21 So that would -- that would point to the 22 fact that, at least, some of the tissues had not had the 23 opportunity, with time, to develop as mature a healing 24 reaction. 25 MS. JANE LANGFORD: Which means what...?

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1 DR. CHARLES SMITH: Oh, I'm sorry, I -- I 2 was vague. The -- the interval between injury and death 3 was much shorter in some tissues than in other tissues. 4 MS. JANE LANGFORD: Why then did you 5 extend your timeframe for as long as twenty-four (24) to 6 forty-eight (48) hours? 7 DR. CHARLES SMITH: I believe that was 8 reasonable because I could not rule out the contribution 9 or a possible contribution of the liver to her death, and 10 her liver had a more advanced healing reaction. 11 Therefore, I felt that the timeframe needed to take into 12 consideration the possibility that her liver had been a 13 factor in her death. 14 MS. JANE LANGFORD: And on what basis did 15 you conclude that the liver injury could be as old as 16 twenty-four (24) to forty-eight (48) hours old? 17 DR. CHARLES SMITH: That's based on the 18 microscopic examination. 19 MS. JANE LANGFORD: Did you testify, Dr. 20 Smith, that all of Jenna's abdominal injuries happened at 21 one (1) time? 22 DR. CHARLES SMITH: No, I believe I 23 always recognized they could have happened over a period 24 of time. 25 MS. JANE LANGFORD: The reviewers, Dr.

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1 Smith, have concluded that the pathology supports a 2 conclusion that Jenna died within six (6) hours of her 3 fatal injuries. 4 Do you agree with that opinion? 5 DR. CHARLES SMITH: No, I don't. 6 MS. JANE LANGFORD: Why not? 7 DR. CHARLES SMITH: I believe that -- 8 that consideration has to be given to the liver injury. 9 And I -- I believe that that opinion discounts or rules 10 out the possibility that the liver injury contributed in 11 her death, and I don't believe that -- that that is a 12 reasonable conclusion. 13 MS. JANE LANGFORD: But, Dr. Smith, you 14 were recorded as agreeing with the clinical opinion of 15 Dr. Ein that Jenna must have died within six (6) hours of 16 her injuries. 17 Is that not an accurate record of your 18 view of Dr. Ein's opinion? 19 DR. CHARLES SMITH: That's correct, I did 20 not dispute that opinion. 21 MS. JANE LANGFORD: What is the different 22 then between the reviewers' opinion that Jenna died 23 within six (6) hours of her fatal injuries and Dr. Ein's 24 opinion that Jenna died within six (6) hours of her fatal 25 injuries?

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1 DR. CHARLES SMITH: It's a different 2 frame of reference. Dr. Ein is reaching an opinion based 3 on clinical information or clinical signs and symptoms, 4 and that is his area of expertise. 5 I was basing my opinion on the histologic 6 analysis, and that is my area of expertise. 7 Dr. Ein would be unable to examine and 8 interpret the liver. 9 MS. JANE LANGFORD: Have you had an 10 opportunity to review your testimony at the preliminary 11 inquiry? 12 DR. CHARLES SMITH: I have, yes. 13 MS. JANE LANGFORD: How would you 14 characterize the quality of your evidence on the timing 15 of injuries in Jenna's case? 16 DR. CHARLES SMITH: When I -- when I gave 17 it I thought that I gave it in a -- in a comprehendible 18 manner, but I -- I now, in rereading it, am -- am humbled 19 by the fact that it really is not clear. 20 And while it makes sense to me, I can well 21 understand that someone reading it would be either 22 confused or could come to an erroneous conclusion. 23 MS. JANE LANGFORD: Dr. Smith, did you 24 consider whether Jenna was sexually assaulted? 25 DR. CHARLES SMITH: I did, yes.

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1 MS. JANE LANGFORD: Did you conduct an 2 examination to rule out pathological findings of sexual 3 assault? 4 DR. CHARLES SMITH: I did, yes. 5 MS. JANE LANGFORD: What were your 6 findings? 7 DR. CHARLES SMITH: There was no evidence 8 of sexual assault. 9 MS. JANE LANGFORD: And did you obtain 10 the assistance of anyone in conducting the examination to 11 rule out sexual assault? 12 DR. CHARLES SMITH: I did, yes. 13 MS. JANE LANGFORD: Who was that? 14 DR. CHARLES SMITH: That's Dr. Dirk Huyer 15 who was involved with the SCAN Team. He may have been 16 head of the SCAN Team at that time, I don't recall. And 17 who also had experience with the examination of bodies in 18 his role as a coroner. 19 MS. JANE LANGFORD: And to the best of 20 your knowledge, Dr. Smith, was Dr. Huyer in agreement 21 with your findings with respect to the sexual assault 22 examination? 23 DR. CHARLES SMITH: He was, yes. 24 MS. JANE LANGFORD: Dr. Smith, did you 25 find a hair on Jenna's body during the post-mortem?

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1 DR. CHARLES SMITH: I did, yes. 2 MS. JANE LANGFORD: And did you submit 3 that hair for analysis? 4 DR. CHARLES SMITH: No, I didn't. 5 MS. JANE LANGFORD: Why not? 6 DR. CHARLES SMITH: Well, it was my 7 understanding, first of all by history, that it was 8 recognized to be a contaminant or -- or to be irrelevant 9 perhaps I should say. 10 It was my understanding that the police 11 were aware of its existence and had no interest in it 12 because it was not -- not relevant. As I looked at it 13 myself I also believed that it was a cont -- or I 14 believed it was a contaminant. 15 And so with the information that the 16 police believed it to be insignificant and my own 17 interpretation that it was of -- of no significance, I -- 18 I took it, stored it in -- in a sealed envelope, but did 19 not submit it because I did not think it -- it necessary 20 to do so. 21 MS. JANE LANGFORD: And when you say your 22 own examination, what about the hair led you to believe 23 it was a contaminant or irrelevant? 24 DR. CHARLES SMITH: Well first of all it 25 -- it did not appear to be a pubic hair, and I -- I

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1 certainly have, on many occasion, seen hairs on a body at 2 autopsy, both hospital cases and coroner's cases, so this 3 was not a surprising finding. 4 In the area it was located, it is an area 5 which would be disturbed by resuscitation, by the removal 6 of clothing and diaper, and also by hands that would be 7 placed into that area, and so anything which may have 8 been in that area before the commencement of 9 resuscitation, in my opinion, would have been mis -- mis 10 -- moved or -- or shifted, or altered, or displaced, and 11 so that was the basis of it. 12 In and of itself, it did not appear to be 13 any significance, and I knew that the -- the likelihood 14 of -- of movement or interference was also considerable. 15 MS. JANE LANGFORD: You said you received 16 information from the police that led you to believe they 17 knew of the hair and thought it was irrelevant. 18 What specific information did you receive 19 from the police? 20 DR. CHARLES SMITH: I -- I can't -- I 21 can't remember the specific words, but I do -- I do 22 remember that the police knew about it and had no 23 interest in it. 24 MS. JANE LANGFORD: Who gave you that 25 information, Dr. Smith?

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1 DR. CHARLES SMITH: Until recent days, I 2 would have -- I would have told you that I believed it 3 was Constable Kirkwood (sic) who attended the autopsy. 4 However, I now, in going over documents that weren't 5 available to me, see that I had -- or likely had 6 conversation with others, and so it may have been another 7 police officer or it may have been a coroner, either the 8 local coroner or the Regional Coroner, who indicated to 9 me that the police had no interest in it. 10 So at this point in time, I'm not sure, 11 but, you know, someone told me something that led to me 12 to believe that it was known to the police. 13 MS. JANE LANGFORD: Dr. Smith, you were 14 asked about the hair during your testimony at the 15 preliminary inquiry, and you denied any knowledge of the 16 hair, why? 17 DR. CHARLES SMITH: The -- the line of 18 questioning was such that I was directed to, as I 19 remember, was directed to a totally different thought 20 process. I had been asked about -- or I was given 21 information concerning the clinical suspicion of sexual 22 abuse in Jenna and I had no knowledge of that clinical 23 suspicion. 24 And I was asked about my knowledge, as I 25 recall, of the presence of a pubic hair, and I had no

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1 knowledge of a pubic hair and whether the pubic hair was 2 given to me. 3 So in light of a suspicion of sexual abuse 4 and a pubic hair that the police may have given to me, I 5 had no knowledge of that whatsoever, and so -- and so, as 6 I recall, my mind was given to a totally different set of 7 circumstances than related to a hair, which is not an 8 uncommon contaminant, that -- it was not a pubic hair and 9 was not found in the context of -- of a sexual assault, 10 so I -- I did -- I -- I made a disconnect; I didn't 11 connect one (1) with that hypothetical or that possible 12 situation of another. 13 MS. JANE LANGFORD: And did you, in fact, 14 have the hair that you seized in an envelope in your 15 pocket at the preliminary inquiry, Dr. Smith? 16 DR. CHARLES SMITH: I did. 17 MS. JANE LANGFORD: Why didn't you simply 18 advise the Court when you were asked about the pubic hair 19 that you had a different hair with you at that time? 20 DR. CHARLES SMITH: I should have. I -- 21 I recognize that mistake. I should have, at the end of 22 it, said, Excuse me, by the way, there is something that 23 -- that hasn't been mentioned, and -- and here it is and 24 you can do with it what you want, essentially. 25 I should have done that and I didn't and I

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1 recognize that, and that was a failure on my part, but it 2 was disconnect. 3 MS. JANE LANGFORD: And sitting here 4 today, Dr. Smith, what is your opinion about your conduct 5 regarding the hair? 6 DR. CHARLES SMITH: I am humbled by it. 7 MS. JANE LANGFORD: Before we leave 8 Jenna's case, Dr. Smith, is there anything you wish to 9 add? 10 DR. CHARLES SMITH: Yes. 11 I realize in Jenna's case the evidence 12 that I gave concerning timing of injury was not clear and 13 concise, and I realize that it had the potential to be 14 misunderstood. 15 And I also realize that my handling of the 16 hair was not what it should have been and gives reason 17 for others to question not only that, but also thereupon 18 my entire report, and I'm sorry for that. 19 I -- I realize that -- that those actions 20 were not helpful. I realize that they served only to 21 perhaps confuse the investigation. It was not helpful in 22 Court. 23 And so I would apologize to the 24 investigators, and the judicial system, but -- but most 25 importantly, I would apologize to Jenna's mom for what I

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1 did. 2 3 (BRIEF PAUSE) 4 5 MS. JANE LANGFORD: Dr. Smith, turning to 6 the head injury cases. 7 In three (3) of the cases that are under 8 review at this Inquiry, you concluded, Dr. Smith, that 9 the child died from Shaken Baby Syndrome; Amber in 1988, 10 Gaurov in 1992, and Dustin in 1993. Is that correct? 11 DR. CHARLES SMITH: That's correct. 12 MS. JANE LANGFORD: Have you had occasion 13 to review these cases? 14 DR. CHARLES SMITH: I have, yes. 15 MS. JANE LANGFORD: Was there a common 16 basis for your findings in those three (3) cases? 17 DR. CHARLES SMITH: The -- the diagnosis 18 of Shaken Baby Syndrome had been established by the start 19 of that time period, and it was based on a -- on what was 20 sometimes referred to as a triad, or a combination of 21 findings of subdural hemorrhage: cerebral edema, 22 swelling of the brain; hemorrhage involving the retina or 23 the optic tissues; all of which occurred in the absence 24 of evidence of -- of a direct impact injury. 25 MS. JANE LANGFORD: When you would have

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1 performed these autopsies and testified in proceedings in 2 relation to those deaths, were you aware of any 3 controversy surrounding those diagnostic criteria that 4 you've told us of? 5 DR. CHARLES SMITH: Yes. There -- there 6 has always been some uncertainty. The -- and -- and that 7 is typical any time a new disease is described. 8 It takes a while to best define a new 9 disease and -- and Shaken Baby Syndrome essentially was - 10 - was first proposed in the -- in the early 1970s. And 11 there was always an attempt to identify better diagnostic 12 criteria which would allow inclusion of cases, as well as 13 to identify criteria which would allow exclusion of 14 cases, and so there has always been uncertainty about 15 that. 16 MS. JANE LANGFORD: Where did your 17 opinion regarding the diagnostic value of that triad sit 18 within the range of opinions? 19 DR. CHARLES SMITH: I think I was in the 20 mainstream of the majority of opinion. 21 MS. JANE LANGFORD: What about the level 22 of certainty with which you expressed your opinion at the 23 time? 24 DR. CHARLES SMITH: In my evidence in 25 Court?

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1 MS. JANE LANGFORD: Yes. 2 DR. CHARLES SMITH: I -- I certainly 3 expressed it with considerable certainty. 4 I -- I think I may have made it more black 5 and white than -- than I should have made it. 6 MS. JANE LANGFORD: In any of these 7 cases, Dr. Smith, were you provided with another 8 reasonable explanation that would have explained the 9 severity of the injuries? 10 DR. CHARLES SMITH: A reasonable 11 explanation of an accidental basis; no, I was not. 12 MS. JANE LANGFORD: Dr. Whitwell opined 13 that Amber's injuries were the result of a fall down five 14 (5) carpeted stairs in her home. 15 Did you consider that explanation? 16 DR. CHARLES SMITH: I did, yes. 17 MS. JANE LANGFORD: And what was your 18 conclusion regarding that explanation? 19 DR. CHARLES SMITH: I -- I didn't think 20 it was credible. The stairway injuries were not 21 recognized to result in fatal head injury, according to 22 the literature at that time. 23 And they were also associated with 24 contusion and abrasions, and -- and I didn't see injuries 25 on -- on Amber's body that were attributable to that.

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1 MS. JANE LANGFORD: Dr. Whitwell also 2 opined that Gaurov's injuries could have been explained 3 by the re-bleeding of an older subdural hemorrhage which 4 was likely related to a birth injury. 5 Did you consider that explanation for 6 Gaurov's injuries? 7 DR. CHARLES SMITH: I did, yes. 8 MS. JANE LANGFORD: And what was your 9 conclusion? 10 DR. CHARLES SMITH: The -- the 11 possibility of rebleed is much less likely in the young 12 than in the adult situation, though I have always 13 recognized its potential. 14 But to make that conclusion, the -- the 15 fresh bleed must occur in the area of a rebleed, and 16 there must be a certain type of -- of healing pattern. 17 And -- and those microscopic criteria were -- were not 18 present in Gaurov, so I -- I dismissed that possibility. 19 MS. JANE LANGFORD: Dr. Smith, on several 20 occasions you attributed certain statements to Justice 21 Dunn regarding the Amber case. Specifically, you stated 22 in one (1) conversation that he advised you that he 23 believed the babysitter to be guilty. 24 And that in another conversation, he 25 advised you that had he tried the case in the late 1990s,

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1 the babysitter would likely have been convicted. 2 Did Justice Dunn ever tell you that? 3 DR. CHARLES SMITH: No, he didn't. 4 MS. JANE LANGFORD: Why did you tell 5 people that he had? 6 DR. CHARLES SMITH: I believed, at the 7 time, that I thought it was true. 8 We had, essentially, two (2) conversations 9 in the area. The first time occurred on an airplane in 10 the midst of my testimony, and he and I were sitting 11 together, and he made statements. 12 He made statements that were very 13 complimentary to the -- or about the Crown witnesses, 14 about the witnesses from the Hospital for Sick Children, 15 and -- and I interpreted those statements to mean that 16 not only was he impressed with the witnesses, with sort 17 of their professional qualities, but I also interpreted 18 that to mean he accepted his opinion. 19 Because certainly by the time I got off 20 the aircraft, I was absolutely convinced that, based on 21 what he said, that he agreed with the opinion that had 22 been presented. 23 I believe that I heard what I wanted to 24 hear as opposed to what he actually said. 25 MS. JANE LANGFORD: What about the second

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1 conversation? 2 DR. CHARLES SMITH: The second 3 conversation was essentially the same. That occurred 4 many years later and -- and I was still somewhat 5 embarrassed by the criticism that had been directed 6 against me in the judgment on that case -- when we 7 happened to meet at a conference of Family Court Judges. 8 We talked about some of the events and 9 some of the changes in the witnesses that had occurred 10 over the years and -- and I indicated that there were 11 changes in the science, and either I had or I was going 12 to that day be speaking about some of the -- of the 13 advances in the diagnosis of Shaken Baby Syndrome. 14 And I -- and I suggested that that old 15 cases -- Amber's case -- would be one (1) which, if it 16 came to court with -- in -- in the light of the 17 acceptance of new knowledge, then there would be a 18 different outcome because of improved diagnostic 19 criteria. 20 And I believe that, in my suggestions, I 21 understood that he accepted that and so again, I believed 22 that I heard what I wanted to hear. I was embarrassed by 23 what had gone on in the past, and I came -- and I came to 24 believe that what I wanted to hear was true, and -- and 25 that was wrong.

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1 MS. JANE LANGFORD: Do you have anything 2 you wish to say about that? 3 DR. CHARLES SMITH: Yes. 4 I deeply regret my conduct. I realize how 5 wrong it was. I'm very sorry that it happened. I would 6 want Judge Dunn to understand that I recognize my mistake 7 in saying what I did and -- and harming his reputation, 8 and -- and I'm very sorry for that. 9 10 (BRIEF PAUSE) 11 12 MS. JANE LANGFORD: Dr. Smith, there are 13 four (4) other head injury cases that are under review at 14 this Inquiry: Kassandra, Nicholas, Taylor, and Tyrell. 15 Have you had an opportunity to review 16 those cases? 17 DR. CHARLES SMITH: I have, yes. 18 MS. JANE LANGFORD: First of all, Dr. 19 Smith, what was your opinion in the 1990s as to the 20 possibility that short distance falls around the home 21 could be fatal? 22 DR. CHARLES SMITH: Well, my opinion in 23 that time period was affected by two (2) things. First, 24 my experience, in which I didn't see any -- any cases 25 where that -- where I believed that conclusion could be

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1 made. 2 But the second one was my understanding of 3 the literature. And certainly at the beginning of that 4 time period, the literature on witnessed falls about the 5 home -- independently witnessed falls -- which is 6 presumably more creditable literature, was very clear 7 that that was not a reasonable possibility. 8 With time though the 1990s, I did 9 recognize in the literature that -- that there was -- 10 there was the possibility that a short distance fall in 11 the home could result in death, but that was through an 12 epidural hemorrhage as opposed to the pattern of 13 hemorrhage in -- in these children. 14 So I think there was -- on my part, a 15 growing recognition of the possibility, but I think I 16 placed very strong emphasis on -- on the studies and 17 especially the San Diego study from -- from David 18 Chadwick. 19 MS. JANE LANGFORD: And what was that 20 study? 21 DR. CHARLES SMITH: Oh, that -- I'm 22 sorry, that was -- that was one (1) of the studies that - 23 - that indicated, by independent observation, that -- 24 that death from a short distance fall about the home was 25 not reasonably explained on that basis, but rather the

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1 possibility of inflicted head injury must be considered. 2 MS. JANE LANGFORD: Has your opinion on 3 the possibility that short distance falls can be fatal 4 changed today? 5 DR. CHARLES SMITH: Yes, it has. I'm 6 aware of the ongoing controversy. And there always has 7 been -- been uncertainty or controversy. I'm -- I'm 8 particularly struck by the fact that there are now 9 increasing anecdotal reports of independently witnessed 10 short distance falls which have resulted in -- in death 11 from head injury of the type of pathology that we -- we 12 see in these cases. 13 MS. JANE LANGFORD: Turning to your 14 opinion in the Kassandra case, Dr. Smith, and 15 specifically your post-mortem report which is at Tab 6 of 16 the Kassandra binder. 17 Mr. Registrar, that's PFP001399. 18 19 (BRIEF PAUSE) 20 21 MS. JANE LANGFORD: And specifically, Dr. 22 Smith, page 7. 23 DR. CHARLES SMITH: I have it, yes. 24 MS. JANE LANGFORD: Dr. Smith, you 25 concluded that Kassandra suffered cranial cerebral

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1 trauma, which I understand is blunt impact head injury, 2 is that correct? 3 DR. CHARLES SMITH: That -- that's -- 4 yeah, head -- that's correct, that's head injury due to a 5 blunt application -- or an application of blunt force, 6 yes. 7 MS. JANE LANGFORD: What was the basis of 8 that conclusion? 9 DR. CHARLES SMITH: The autopsy revealed 10 the presence of -- of contusion or -- or bruising in the 11 scalp at the back of the head in association with the 12 intracranial findings of subdural hemorrhage, swollen 13 brain and others along with retinal and optic nerve sheet 14 hemorrhages. 15 So it was a combination of the single 16 point of impact along with the evidence of damage to the 17 brain or the Central Nervous System. 18 MS. JANE LANGFORD: You believed 19 Kassandra's injuries were likely non-accidental? 20 DR. CHARLES SMITH: That's correct. 21 MS. JANE LANGFORD: Why? 22 DR. CHARLES SMITH: The explanation that 23 was given to me -- or no, I should say, there was no 24 explanation given to me that -- that accounted for them 25 on an accidental basis.

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1 MS. JANE LANGFORD: Dr. Whitwell queried 2 whether the recent subdural bleeding could be related to 3 epilepsy. Did you consider that possibility? 4 DR. CHARLES SMITH: Yes, I did. 5 MS. JANE LANGFORD: And what was your 6 conclusion regarding it? 7 DR. CHARLES SMITH: I -- I do not 8 recognize that eps -- epilepsy causes subdural hemorrhage 9 and all of the other changes, retinal/optic nerve sheath 10 hemorrhage, and such that we saw in Kassandra. 11 MS. JANE LANGFORD: Do you continue to 12 believe today that your opinion regarding Kassandra's 13 death was a reasonable one? 14 DR. CHARLES SMITH: I do, yes. 15 MS. JANE LANGFORD: Turning to your 16 opinion in Taylor's case. Your consultation report is at 17 Tab 6, that's PFP009603, Taylor Tab 6. 18 19 (BRIEF PAUSE) 20 21 MS. JANE LANGFORD: And page 9, Dr. 22 Smith. 23 DR. CHARLES SMITH: I have that, yes. 24 MS. JANE LANGFORD: You concluded Taylor 25 also suffered from blunt impact head injury, Dr. Smith?

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1 DR. CHARLES SMITH: I did, yes. I did, 2 yes. 3 MS. JANE LANGFORD: What pathology 4 findings on your examination were consistent with blunt 5 impact trauma? 6 DR. CHARLES SMITH: I didn't have all of 7 the -- the expected findings, but then I wasn't the 8 person who did the first autopsy. There was evidence of 9 dural hemorrhage and swelling of the brain, and there 10 were contusions, or areas of hemorrhage or bruising in 11 the brain, and those findings would support the diagnosis 12 of blunt impact head injury. 13 But it was also important to me that Dr. 14 Rieckenberg, who performed the original post-mortem 15 examination, saw a laceration of the corpus callosum. 16 And -- and though I couldn't verify it, I did accept his 17 observation because I respected his expertise. 18 MS. JANE LANGFORD: And so his findings, 19 taken together with yours? 20 DR. CHARLES SMITH: With -- with mine, 21 that's correct, were the basis of that conclusion. 22 MS. JANE LANGFORD: Were you provided 23 with an explanation that could reasonably explain these 24 findings to be an accidental injury? 25 DR. CHARLES SMITH: Certainly not before

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1 I testified in Court I -- I didn't know, no. 2 MS. JANE LANGFORD: And what about when 3 you testified at Court? 4 DR. CHARLES SMITH: When I was -- when I 5 testified at Court, or was asked to testify, I was 6 provided with the history of the potential for a 7 significant blunt impact injury that occurred to Taylor's 8 head against the knee of one (1) of his parents during 9 the course of the domestic dispute. 10 MS. JANE LANGFORD: And what did you 11 believe that explanation was, reasonable or unreasonable? 12 DR. CHARLES SMITH: Well, I was certainly 13 sceptical of it but I couldn't rule it out. And so I 14 believe that my testimony in Court reflected the fact 15 that -- that though unlikely, my level of certainty was 16 such that I -- I could not exclude it. 17 COMMISSIONER STEPHEN GOUDGE: Why were 18 you sceptical? 19 DR. CHARLES SMITH: Why was I sceptical? 20 I -- I think a couple things. 21 First of all, I was -- I was still not 22 certain of just how violent that event was, and -- and 23 the -- as I tried to dissect out the information that was 24 given to me in Court. I don't know if it was a 25 hypothetical or the -- or the actual evidence, I was not

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1 convinced that it was -- that is was necessarily of a -- 2 of a great force or a considerable force. And so that's 3 the first thing. 4 And the second thing is -- is, there is 5 sort of a maxim or a standard that when death occurs from 6 blunt impact head injury in an accidental situation, the 7 caregiver or the parent has seen something which is 8 extraordinary, and right from the beginning they provide 9 a history of this very unusual event. 10 Because apart from things like motor 11 vehicle accidents, accidental fatal injury in the young 12 is very uncommon. And so the -- the absence of such a 13 history forthcoming during the course of it, but to me 14 really only coming along as a possibility at the end, 15 also caused me to be suspicious about -- about the 16 veracity, or the truth of that. 17 And -- and I now realize that -- that 18 though that -- that aphorism or that principle may be 19 correct, I don't think it's my role as a pediatric 20 pathologist to try and make a judgment call using that -- 21 that, but nevertheless, I think that that did colour my 22 degree of suspicion. 23 MS. JANE LANGFORD: Do you continue to 24 believe, Dr. Smith, that your opinions in the Taylor case 25 were reasonable ones?

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1 DR. CHARLES SMITH: Well, I -- I do, yes. 2 And -- and in that, I'm -- I'm comforted by the fact that 3 Dr. John Deck, who's a neuropathologist with -- more 4 senior to me with considerable expertise, in rendering an 5 opinion for the defence, came to the same opinion as 6 mine. 7 MS. JANE LANGFORD: Turning to Tyrell's 8 case, and specifically your post-mortem report at Tab 7. 9 Mr. Registrar, PFP012442. 10 COMMISSIONER STEPHEN GOUDGE: Tab...? 11 MS. JANE LANGFORD: Tab 7. 12 13 CONTINUED BY MS. JANE LANGFORD: 14 MS. JANE LANGFORD: And page 6, Dr. 15 Smith. 16 DR. CHARLES SMITH: I have that, yes. 17 MS. JANE LANGFORD: Dr. Smith, you 18 concluded that Tyrell suffered cranial cerebral trauma, 19 which again I understand is a blunt impact head injury? 20 DR. CHARLES SMITH: I -- yes. Whoops, 21 I'm sorry, Matt. 22 Yes, I believe that the autopsy findings 23 of scalp contusion and then the -- and then the changes 24 to his brain and -- and optic structure support that 25 diagnosis.

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1 MS. JANE LANGFORD: And you also 2 testified that you believed Tyrell's injury was likely 3 non-accidental, correct? 4 DR. CHARLES SMITH: That's correct. 5 MS. JANE LANGFORD: What was the basis 6 for that conclusion? 7 DR. CHARLES SMITH: I hadn't been 8 provided with an explanation of an accidental event that 9 I thought reasonably explained the autopsy findings. 10 MS. JANE LANGFORD: What explanation were 11 you provided with? 12 DR. CHARLES SMITH: Oh, I'm sorry. I was 13 told that he had fallen from or jumped from a couch and 14 may have hit his head on a coffee table or on the floor. 15 MS. JANE LANGFORD: Dr. Smith, you are 16 aware that the reviewers conclude that Tyrell's injuries 17 could be explained by his history on the basis of a 18 classic contrecoup injury. You understand that? 19 DR. CHARLES SMITH: Yes, I understand 20 that. Yes. 21 MS. JANE LANGFORD: Did you consider that 22 explanation at the time? 23 DR. CHARLES SMITH: I did, yes. Yes. 24 MS. JANE LANGFORD: And what was your 25 conclusion regarding it?

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1 DR. CHARLES SMITH: There was no 2 contrecoup injury. 3 MS. JANE LANGFORD: Why not? 4 DR. CHARLES SMITH: The contrecoup in the 5 young is uncommon. The younger you are the more uncommon 6 it is, and that has to do with the, as I understand it, 7 with the mechanical structure, or the integrity of the 8 brain in the infant or the young child. 9 And, so first of all, one has to be very 10 cautious about making that diagnosis, though it does -- 11 it does occur. 12 The second is that the pattern of -- of 13 contusion, or -- or hemorrhage, or injury in the brain 14 was not one (1) that I recognized to be diagnostic of a 15 contrecoup injury. 16 And then -- and then my third response 17 would be that that possibility was something that Dr. 18 Becker and I had considered. Dr. Becker was the 19 neuropathol -- pediatric neuropathologist who often 20 consulted for me and consulted in this case. 21 And he -- who had much more experience in 22 the pediatric brain than I had -- was also of the firm 23 opinion that this was not a contrecoup injury. 24 MS. JANE LANGFORD: Do you believe your 25 opinion on Tyrell's case was reasonable at the time?

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1 DR. CHARLES SMITH: I do, yes. 2 MS. JANE LANGFORD: What about the 3 quality of your evidence in that case? 4 DR. CHARLES SMITH: I -- I think that, 5 once again, I fell -- I fell victim to my -- to my 6 tendency to be dogmatic, or to make things more black and 7 white than I should have attempted to communicate in 8 Court. 9 And I -- I was either very defensive or 10 perhaps, adversarial, and -- and I shouldn't have been, 11 and I realize that was a mistake. 12 MS. JANE LANGFORD: Finally, Dr. Smith, 13 on the head injury cases. 14 In Nicholas' case, you also concluded that 15 Nicholas suffered a non-accidental blunt impact head 16 injury? 17 DR. CHARLES SMITH: I did, yes. 18 MS. JANE LANGFORD: What was the 19 pathological basis of your finding that there was a blunt 20 impact head injury? 21 DR. CHARLES SMITH: The -- the basis was 22 limited. It was the -- the finding of increased brain 23 weight and the presence of splitting of the skull sutures 24 when taken with the observation in emergency department 25 that he had physical evidence of an acute head injury.

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1 MS. JANE LANGFORD: And the basis of your 2 conclusion that that injury was non-accidental, or likely 3 non-accidental? 4 DR. CHARLES SMITH: The history that I 5 was given was that he had stood up under a coffee table 6 and bumped his head on the underside of that. And I 7 didn't think that was a reasonable explanation for -- for 8 a fatal blunt force head injury. 9 MS. JANE LANGFORD: And what is your 10 conclusion today about your work in that case? 11 DR. CHARLES SMITH: I believe I was too 12 narrowly focussed. 13 I believe, right from the beginning, I was 14 coloured by the -- the observation that he had -- had 15 evidence of -- external evidence of -- of a head injury. 16 And I believe that I concentrated on the 17 head injury; concentrated on trying to find evidence to 18 support it or to rule it out as a diagnostic possibility; 19 and concentrated on the fact that the history didn't seem 20 to be sufficient to explain his death. 21 And the mistake I made was that I was not 22 as broad in my original consideration of diagnostic 23 possibilities, but rather I was too narrowly focussed. 24 MS. JANE LANGFORD: Can you explain why 25 you think you were too narrowly focussed, Dr. Smith?

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1 DR. CHARLES SMITH: I -- I believe I -- I 2 concentrated on the head injury component as opposed to 3 stepped back and -- and looked at the -- the whole case, 4 and recognized how limiting or -- or how tenuous was the 5 actual evidence for the head injury. 6 MS. JANE LANGFORD: And do you have 7 anything you wish to say today about Nicholas' case? 8 DR. CHARLES SMITH: Yes. Unlike perhaps 9 some of the other cases, I well reco -- recognize, or 10 realize that in Nicholas' case, I am solely responsible, 11 or I am likely solely responsible for all of the 12 difficulties that -- that Nicholas' family has suffered, 13 and I -- and I do apologize to his family; to his -- to 14 his grandparents; and -- and especially to his mother. 15 MS. JANE LANGFORD: Mr. Commissioner, 16 this would be a convenient time to break. 17 COMMISSIONER STEPHEN GOUDGE: Okay. We 18 will rise now until five (5) past 2:00. 19 20 --- Upon recessing at 12:46 p.m. 21 --- Upon resuming at 2:03 p.m. 22 23 THE REGISTRAR: All Rise. Please be 24 seated. 25 COMMISSIONER STEPHEN GOUDGE: Ms.

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1 Langford...? 2 MS. JANE LANGFORD: Thank you, Mr. 3 Commissioner. 4 5 CONTINUED BY MS. JANE LANGFORD: 6 MS. JANE LANGFORD: Dr. Smith, at the 7 lunch break you and others reminded me that I neglected 8 to give you an opportunity to speak more broadly about 9 Amber's case, and I -- I'm sorry for that. 10 And is there anything else you wish to say 11 about Amber's case? 12 DR. CHARLES SMITH: Yes, thank you. 13 Amber's case, like others that we've 14 touched on, brings up the issue of short distance falls, 15 once again, and I recognize that I would give a different 16 opinion now than the -- the very certain one that I -- 17 that I gave in the past. 18 And I recognize that my -- my evidence at 19 trial was very black and white or -- or was very 20 defensive or adversarial, and -- and that was wrong, and 21 I'm -- I'm sorry for having done that. 22 23 (BRIEF PAUSE) 24 25 MS. JANE LANGFORD: You've acknowledged,

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1 Dr. Smith, a number of errors and omissions in your work 2 today. Why didn't you acknowledge these mistakes 3 earlier? 4 DR. CHARLES SMITH: I've always known 5 that there are -- that there are issues in any individual 6 case, because I don't think there's such a thing as a 7 perfect pathology report; it's -- it's an art. 8 But I had no understanding just how 9 significant were the gaps in my knowledge or how -- or 10 how significant were my errors until I had the 11 opportunity first of -- of reading the report of the 12 Office of the Chief Coroner and thereafter then hearing 13 some of the -- of the opinions, or evidence, or testimony 14 given by others. So in the beginning I -- I was ignorant 15 or sheltered in -- in my view. Excuse me. 16 When the -- when I read the -- the 17 information in the -- the press release from the Office 18 of the Chief Coroner much earlier this year, I didn't 19 know the identification of the cases and so I had no idea 20 which ones were -- were fine and which ones there were 21 issues. 22 I didn't learn the identification until 23 some time later, and then even thereafter I did not have 24 access for a period of time to the materials so that I 25 could even look at what I had seen in the past and

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1 reconsider the opinion that I had given. 2 By the time that process had occurred, 3 enough months had passed that I felt that it would not be 4 proper for me to make any statement about any kind or to 5 be seen interfering with the hearing process because it 6 was already well underway at that point in time. 7 MS. JANE LANGFORD: But, Dr. Smith, there 8 were some cases in which you had been seriously 9 challenged or your opinions questioned; specifically in 10 Sharon's case, in Valin's case, Amber's case, Tyrell's 11 case, Nicholas and Jenna's cases. 12 Didn't the concerns raised about your work 13 in those cases give you reason to consider whether or not 14 there were gaps in your knowledge? 15 DR. CHARLES SMITH: I -- I was aware of 16 the criticisms, or at least aware of many of the 17 criticisms, but at the same time I was also aware that in 18 many instances there were one (1) or more opinions by 19 experts who agreed with me, and so to some degree I felt 20 my opinion was sheltered or protected by the opinion of 21 others. 22 Coupled with that was the -- the 23 recognition that in -- in medicine, honest differences of 24 opinion can occur, and within the judicial system it -- 25 it almost appeared to me that -- that there was an

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1 encouragement or a recognition of widely differing 2 opinions that were part of the adversarial process. And 3 -- and so I expected that there would be differences of 4 opinion on these cases, and indeed on -- on other cases 5 that have gone to court, as well. 6 And -- and finally, some of those 7 criticisms I -- I probably dismissed because I had gone 8 after the cases from the viewpoint of a -- of a pediatric 9 pathologist with interest in forensics, and the authors 10 of some of the criticisms were not taking a synoptic 11 viewpoint but rather may not even have been physicians. 12 And so I didn't feel that those criticisms 13 adequately reflected a reasonable viewpoint from where I 14 stood. 15 MS. JANE LANGFORD: Were you aware, Dr. 16 Smith, of any concerns about your testimony or the 17 quality of your testimony prior to the results of the 18 review by the Office of the Chief Coroner? 19 DR. CHARLES SMITH: A little bit. By the 20 time the -- the review came out, I'd testified in a 21 variety of courts on numerous occasions -- not -- not 22 simply the criminal but also in Coroner's Courts and 23 other things -- and very little was ever said to me. I 24 was aware that there were situations in which a judge did 25 not accept -- or did not reach a decision that

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1 necessarily reflected my opinion on a case, but I 2 recognized that's part of the Judicial System. 3 I was aware of the criticisms of Judge 4 Dunn and was embarrassed by those but recognized that 5 there was something behind some of those criticisms. 6 I was only aware of one (1) Crown attorney 7 who ever criticized me, and that was in a situation 8 wherein I had given evidence in court that was favourable 9 to the defence. And so I interpreted his criticism as 10 being directed against me, a Crown witness, not for 11 process but simply for the content of what I said; it was 12 not helpful to him. 13 MS. JANE LANGFORD: Were you aware, Dr. 14 Smith, of the concerns expressed by either the police or 15 the Crown that your opinions changed from the time of the 16 post-mortem to the time of your testimony? 17 DR. CHARLES SMITH: You've asked almost 18 two (2) questions there. I was never aware of any 19 concern by the Crowns about changing in my -- my opinion. 20 The police, I think, I generally made 21 aware that there was always the possibility for that. 22 Certainly, the -- you know, at post-mortem examination 23 they were -- they would be made aware that this is a 24 preliminary opinion; it -- it requires refinement or 25 reconsideration by microscopic examination and also by

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1 whatever new information came along. 2 So the -- so I don't -- I don't think that 3 I would have presented to the police, the concept that 4 once an opinion was given I ever expected it to be 5 unchangeable. 6 MS. JANE LANGFORD: And with the benefit 7 of hindsight, Dr. Smith, how would you characterize your 8 relationship with the Crown and the police? 9 DR. CHARLES SMITH: Generally, it was a 10 very -- a very friendly relationship. 11 Within the hospital, my relationships with 12 my colleagues are -- are based on trust. And though it's 13 a stressful environment, we tend to have relaxed, 14 collegial relationships. 15 And I think that I -- I attempted to 16 superimpose that somewhat relaxed or casual approach onto 17 the relationships I had with the police and with Crowns. 18 And I think the -- the error in that is that while 19 clinical colleagues might understand opinions and limits 20 of opinion, I think that -- I think that I erred in not 21 working very hard to ensure that the police and the 22 Crowns not only knew what my opinion was but understood 23 the significance of the opinion and understood the 24 limitations of that opinion. 25

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1 (BRIEF PAUSE) 2 3 MS. JANE LANGFORD: Dr. Smith, I want to 4 turn to the review conducted by the Office of the Chief 5 Coroner. The review conducted by the -- the Office of 6 the Chief Coroner, Dr. Smith, focussed on pathology, and 7 in particular, your pathology. 8 What impact do you believe the scope of 9 the review had on its conclusions? 10 DR. CHARLES SMITH: I -- I think it was 11 unfair. But let me make it very clear that I understand 12 that any death investigation must have as part of its 13 basis a -- a strong foundation in terms of pathology. 14 Any death investigation, natural disease, 15 accident, whatever, requires good pathology. And so I 16 don't minimize the fact that -- that it was proper to 17 consider my pathology. 18 I recognize that within the constraints of 19 the Office of the Chief Coroner, it would have been 20 beyond their resources to have considered a -- a review 21 process that was much wider. 22 Therefore, by focussing on my work alone, 23 in fact focussing only on selected cases of my work and 24 not on -- not on my entire work product, by not 25 considering the work of other pathologists, by not

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1 considering the work of coroners, the police, all of the 2 other involved in the death investigation process or the 3 judicial process, I think I was unfairly singled out. 4 MS. JANE LANGFORD: And when you say, Dr. 5 Smith, that you think it was appropriate for the 6 Coroner's Review to review the pathology and get a good 7 foundation of pathology, are you supportive of the 8 Coroner's Review in its findings and in its conclusions 9 that benefited the death investigation from a 10 pathological point of view? 11 DR. CHARLES SMITH: Yes, there's much to 12 be learned and much to be gained by that. While I can 13 disagree with some of the conclusions that were made, 14 nevertheless understanding pediatric forensic pathology 15 and all its ramifications is -- is very important and is 16 central to a good death investigation process. 17 MS. JANE LANGFORD: Do you have any 18 issues, Dr. Smith, with the choice of the reviewers? 19 DR. CHARLES SMITH: No. These people all 20 have knowledge and expertise in forensic pathology that I 21 don't have. 22 23 (BRIEF PAUSE) 24 25 MS. JANE LANGFORD: Dr. Smith, the

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1 reviewers were given a lot of documentation, including 2 consultation reports from defence pathologists, and in 3 some cases, consultation reports from pathologists who 4 had reviewed the cases after your involvement. 5 What impact do you believe this 6 information had on the reviewers? 7 DR. CHARLES SMITH: I believe it had to 8 have a significant impact. One of the principles that I 9 believe would reflect a good expert, is a good expert 10 would consider the carefully formed eval -- opinions or 11 evaluations of other experts. 12 And so just as if I'm reviewing a case and 13 I see a report by another expert, I would pay attention 14 to that and consider that opinion. So -- also I think 15 that knowingly or unknowingly, the expert review panel 16 would have done the same thing. 17 We -- we're not looking at cases from a 18 synoptic viewpoint; they had -- they had access to 19 information and reasoning that I did not have, and so we 20 were dealing with the different knowledge base. But 21 where that knowledge base included expert opinions, I 22 believe it would have -- or could have resulted in -- in 23 different conclusions. 24 MS. JANE LANGFORD: And when we're 25 thinking about the consultation reports that they would

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1 have had access to, what kind of information was 2 contained in those consultation reports that you would 3 not have had access to at the time you did your work on 4 those cases? 5 DR. CHARLES SMITH: Well, in addition to 6 reasoning and -- or -- or opinions of others, they also 7 had access to medical records that I did not have access 8 to. And they would have had access to witness statements 9 or to information from the police that I would not have 10 had access to. 11 MS. JANE LANGFORD: And when you say 12 "reasoning", Dr. Smith, what do you mean by that in terms 13 of information the reviewers had that you did not have? 14 DR. CHARLES SMITH: Oh, they -- they 15 could have had, and I believe did have, opinions of 16 others, such as -- as pathologists who, in their -- in 17 their consultation report would have indicated how they - 18 - how they came to a conclusion on their consideration of 19 my work on a case, or came to con -- a conclusion on a 20 cause of death on a -- on a case that I had done. 21 So, they would have not only the final 22 opinion but they would have the thought processes to see 23 how reasonable that decision-making was, and could 24 therefore choose to align their own thought process or 25 their own decision-making on similar bases.

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1 MS. JANE LANGFORD: A number of times 2 today, Dr. Smith, you have stated that you believe your 3 opinions, although potentially erroneous today, were 4 reasonable at the time they were given. 5 Do you believe the reviewers gave this 6 evolution any consideration? 7 DR. CHARLES SMITH: Well, they gave it 8 some consideration, but I don't believe they gave it in - 9 - they gave it adequate consideration, and I'm not aware 10 that they gave it consideration in the majority of the 11 cases they reviewed. 12 MS. JANE LANGFORD: And what do you 13 believe they should have given consideration to? 14 DR. CHARLES SMITH: There are 15 improvements in the science. This is still a young field 16 and -- and a field of increasing knowledge, and I believe 17 they should have been clearer in what they understood to 18 be the -- a reasonable scientific, or a generally 19 accepted scientific basis at the time that I did those 20 autopsies so that they would recognize things like, what 21 was known about anogenital injuries in the early '90s as 22 opposed to 2007. 23 MS. JANE LANGFORD: And, Dr. Smith, at 24 Tab 6 of your written statement, I understand you have 25 provided examples of the areas of pathology that you

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1 believe have evolved since the time you did the work on 2 some of these cases. Is that correct? 3 DR. CHARLES SMITH: That's correct. 4 COMMISSIONER STEPHEN GOUDGE: Sorry, 5 where is that, Ms. Langford? 6 MS. JANE LANGFORD: That is at Tab 6 of 7 Dr. Smith's written statement -- 8 COMMISSIONER STEPHEN GOUDGE: Give me a 9 page number. 10 MS. JANE LANGFORD: -- which is at page -- 11 COMMISSIONER STEPHEN GOUDGE: I am using 12 the page numbers here. 105, is that where we are at? 13 MS. JANE LANGFORD: Yes, beginning at 14 page 105 -- 15 COMMISSIONER STEPHEN GOUDGE: Yes. 16 MS. JANE LANGFORD: -- Dr. Smith outlines 17 examples of his -- what he believes were the reviewers' 18 failure to acknowledge the evolution in the science of 19 pathology. 20 Do you have that, Mr. Commissioner? 21 COMMISSIONER STEPHEN GOUDGE: Yes, I do, 22 thanks. 23 24 CONTINUED BY MS. JANE LANGFORD: 25 MS. JANE LANGFORD: Am I right, Dr.

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1 Smith, that there are really three (3) areas. There is 2 the non-accidental head injury; that is, the shaken 3 babies/short fall controversy. 4 There is the what you have described to be 5 the development in anal post-mortem artifact and then 6 there's the use of the term "undetermined". 7 Have I got those sort of three (3) 8 categories right? 9 DR. CHARLES SMITH: Yes. There -- and 10 there could be other things added to this. These are -- 11 these are examples. 12 COMMISSIONER STEPHEN GOUDGE: Okay. 13 DR. CHARLES SMITH: This morning I 14 touched on the issue of -- of a growing understanding of 15 what might be defined as an unsafe sleep environment, for 16 instance. 17 COMMISSIONER STEPHEN GOUDGE: I see. 18 Okay. Thank you. 19 20 CONTINUED BY MS. JANE LANGFORD: 21 MS. JANE LANGFORD: Dr. Smith, you have 22 also stated today on a number of occasions that in -- in 23 some areas of pathology, there is either an absence of 24 diagnostic criteria or uncertainty or controversy. 25 Do you believe the reviewers gave the

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1 state of science at the time any consideration? 2 DR. CHARLES SMITH: Well, I believe they 3 gave it some, but -- but again, I don't believe they gave 4 it anywhere near the consideration that it warranted. 5 MS. JANE LANGFORD: And how would you 6 describe the state of pathology in respect of some of the 7 issues that you had to deal with in these cases? 8 DR. CHARLES SMITH: It was difficult in - 9 - with some of the issues to find anything that formed a 10 -- a basis upon which to -- to come to a certain 11 conclusion. 12 And in many instances, the diagnostic 13 decision-making was based on the experience of an 14 individual pathologist because there were no clear-cut 15 diagnostic criteria. 16 And indeed in many situations, there still 17 are no clear-cut diagnostic criteria. So this is part of 18 the art of pathology, as opposed to the science of 19 pathology. 20 MS. JANE LANGFORD: And, Dr. Smith, 21 beginning at page 104 of your written testimony, you have 22 listed a number of areas of pathology that you believe 23 the reviewers may not have fully acknowledged in terms of 24 the controversy and uncertainty, in the science of 25 pathology, is that correct?

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1 DR. CHARLES SMITH: That's correct. 2 MS. JANE LANGFORD: Dr. Smith, on a 3 number of the twenty (20) cases, the reviewers criticized 4 the content and style of your post-mortem reports. 5 How do you feel about that criticism? 6 DR. CHARLES SMITH: Again, I think that 7 that is unjustified. My reports were written in 8 accordance with the -- the format or the protocol that 9 was expected, or that I believed was expected, for a 10 person who's doing these kind of post-mortem 11 examinations. 12 MS. JANE LANGFORD: And at page 106 of 13 your written statement, Dr. Smith, have you given some 14 examples of differences that you attribute to 15 jurisdictional differences between you and the reviewers? 16 DR. CHARLES SMITH: Yes. Now, these are 17 -- are some good examples of those, yes. 18 MS. JANE LANGFORD: And one (1) of those 19 is the content and style of post-mortem reports? 20 DR. CHARLES SMITH: Yes. Yes, and -- and 21 there are -- are others. I don't think we necessarily 22 need to discuss these now. 23 MS. JANE LANGFORD: You have testified 24 that the use of asphyxia, in your opinion, was common or 25 -- or widespread in the 1990s.

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1 Are there other occasions that you believe 2 the reviewers failed to acknowledge what you consider to 3 be widespread practices in the 1990s? 4 DR. CHARLES SMITH: Yes. Terminology or 5 communication of certainty would be one (1) of those 6 things, like "consistent with", or in "keeping with", 7 would be one (1) type. 8 Another would be the "communication of 9 suspicion". Words like "worrisome","suspicious", "highly 10 suspicious"; ways that a pathologist might communicate 11 concern so that the investigators would understand that - 12 - that there was concern that needed to be addressed was 13 accepted in Ontario then. 14 But I'm not sure that the reviewers 15 recognized that as being a -- a best practice or a good 16 practice. And so I think that again, that was a 17 criticism that didn't necessarily reflect the culture at 18 the time. 19 MS. JANE LANGFORD: What, if any, Dr. 20 Smith, attention, do you believe the reviewers paid to 21 the presence of clinical opinions that may have 22 influenced your opinions? 23 DR. CHARLES SMITH: I -- I don't believe 24 they gave them -- they gave the clinical opinions 25 adequate consideration. I had the benefit of clinical

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1 opinions, and I had the -- the benefit of -- of knowing 2 and there -- and respecting some of the people behind 3 those clinical opinions. 4 But nevertheless, even in the absence of 5 that knowledge, I think that those clinical opinions 6 should have been a tempering factor in the -- in the 7 opinions that the reviewers gave. 8 MS. JANE LANGFORD: What do you mean by 9 "a tempering factor"? 10 DR. CHARLES SMITH: Oh, they -- I'm 11 sorry, I'm -- I'm vague again. I think they should have 12 acknowledged them and given them consideration, and I 13 don't believe that they gave them adequate consideration. 14 15 (BRIEF PAUSE) 16 17 MS. JANE LANGFORD: Dr. Smith, before I 18 turn it over to the Commission Counsel to ask you 19 questions, is there anything further you would like to 20 say to this Commission? 21 DR. CHARLES SMITH: Yes. Yes, if I may. 22 For -- for well over two (2) decades, I was involved in 23 the provision of consultative services in pediatric 24 pathology for the Office of the Chief Coroner, and I 25 worked very hard at that.

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1 And I was proud of the quality of my work, 2 if I may be permitted to take pride in that. I realize 3 now, with hindsight, the extraordinary gaps in my 4 knowledge. I realize the mistakes that I made, and I 5 realize how I complicated and made difficult the Judicial 6 process. 7 And because of -- of that, I -- I would 8 want my -- my testimony here to help understand not only 9 what happened and why, but also hopefully, to form a 10 basis so that going forward, there can be a substantially 11 better system than existed. 12 But I also want to reiterate the fact that 13 I take full responsibility for my work. 14 MS. JANE LANGFORD: Thank you, Mr. 15 Commissioner, those are my questions. 16 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 17 Langford. 18 What do you want to do, Ms. Rothstein? Do 19 you want to take an early break so you can organize 20 yourself? 21 MS. LINDA ROTHSTEIN: I'm actually in Ms. 22 Langford and her client, Dr. Smith's hands. If they 23 would like a break now, I'm happy to do that. If they 24 would like me to begin now, I'm happy to do that. I 25 defer to them.

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1 MS. JANE LANGFORD: Perhaps you could 2 begin. 3 4 (BRIEF PAUSE) 5 6 CROSS-EXAMINATION BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Good afternoon, Dr. 8 Smith. You have over on that bookcase -- that trolley -- 9 are three (3) volumes that are titled on the spine, 10 Commission Counsel, re. Dr. Smith. 11 If you would be good enough to go and 12 collect those, sir. 13 14 (BRIEF PAUSE) 15 16 DR. CHARLES SMITH: Yes, thank you. 17 MS. LINDA ROTHSTEIN: Dr. Smith, I want 18 to begin this afternoon by asking you some questions 19 about the reasons that you've given us thus far, to 20 explain the various errors that you have so candidly 21 acknowledged, and I pre -- appreciate very much that you 22 were not endeavouring to give an exhaustive list, so I 23 hope you don't see in my questions any implication that 24 that's what I'm looking for. 25 Indeed, I suspect that over the next two

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1 (2) plus days, you and I will explore a number of the 2 reasons at some greater length. The thing that you've 3 fastened on mostly, as I hear it, sir, is the lack of 4 expertise and formal training; the extraordinary gaps in 5 your knowledge -- as you just put it to your counsel -- 6 in forensic pathology; that would be one (1) of the main 7 reasons you would see that explains what went wrong here, 8 is that fair? 9 DR. CHARLES SMITH: I believe -- I 10 believe that's a very significant factor, yes. 11 MS. LINDA ROTHSTEIN: And I take it that 12 coupled with that was your failure throughout these years 13 to recognize, as you've put it, the value-add in that 14 training and expertise in forensics. 15 DR. CHARLES SMITH: That's correct. 16 MS. LINDA ROTHSTEIN: Is it fair to 17 conclude from what you've told us thus far, Dr. Smith, 18 that your failure to recognize the value-add in forensics 19 was something that afflicted you throughout this lengthy 20 period of time? 21 DR. CHARLES SMITH: I think so. 22 Certainly in the 1980s, I had virtually no knowledge of - 23 - of what was going on in -- in forensic pathology. In 24 the 1990s -- and it was really on the latter half of the 25 1990s -- where I had increasing interaction with the

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1 forensic pathology unit -- the Toronto Forensic Pathology 2 Unit -- that I had much exposure to forensic pathology, 3 but most of that, again, was -- was not relevant to 4 pediatric pathology. 5 The type of cases that were discussed or 6 the problems that they looked at were generally unrelated 7 to the kind of work I was doing, and so though I was 8 seeing that they were doing different work, I -- I did 9 not interpret that different work to be of relevance or 10 to have impact on the kind of work that was going on at 11 Sick Kids. 12 MS. LINDA ROTHSTEIN: What about the 13 broader sense in which one might define forensic 14 pathology, that is to say, It's a very important 15 relationship to the Justice System and all of that means 16 -- all that means. 17 Is it your evidence, sir, that that wasn't 18 brought home to you at some much earlier point in your 19 career? 20 DR. CHARLES SMITH: No. I -- I wish it 21 had been. There was very little discussion about what 22 went on. Apart from cases that I was involved in, it 23 didn't -- involved Crown attorneys, I certainly was never 24 part of discussions of adult cases. 25 And anytime I ever dealt with the Justice

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1 System, it was completely in the absence of involvement 2 by forensic pathologists until the very end of that time 3 period on something like the -- the Sharon case. 4 I never went to Court to listen to the 5 testimony of forensic pathologists and no one ever came 6 and listened to me, either, and so I think that that was, 7 again, an opportunity that was missed. 8 MS. LINDA ROTHSTEIN: The second reason 9 that you have described in your evidence thus far is what 10 you put as the disconnect between the Office of the Chief 11 Coroner and the Pediatric Forensic Pathology Unit, of 12 which you were the Director at the Hospital for Sick 13 Children. 14 In fact, I think you used the word that it 15 was "separate silos". 16 DR. CHARLES SMITH: Yes, that's right. 17 MS. LINDA ROTHSTEIN: And is it your 18 evidence, sir, that you, indeed, would have benefited 19 therefore from a much closer relationship between those 20 two (2) institutions? 21 DR. CHARLES SMITH: I believe so, yes. I 22 want to be very clear here that -- that the -- the Office 23 of the Chief Coroner was available to me when I would 24 telephone and seek advice or discussion on some matter. 25 And so Dr. Young, or the vast majority of

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1 my phone calls would be to Dr. Cairns or to the Regional 2 Coroners were -- were receptive of my communications and 3 they -- and they responded. 4 But that was always a reactionary basis 5 and that we -- we really didn't go beyond interaction 6 apart from -- kind of a case-by-case basis. 7 MS. LINDA ROTHSTEIN: So what was it 8 exactly that led you to say this morning in answer to Ms. 9 Langford that the OCCO's relationship with the OPFPU 10 suffered from "benign neglect"? 11 DR. CHARLES SMITH: There were -- they 12 were clearly pleased with what we were doing, but I can 13 see that there were things that could have been done 14 better. 15 We could have had better education 16 programs for the pathology residents, for instance. We 17 could have attempted to help create, within the 18 University environment, possibilities for research that - 19 - that hadn't gone on. 20 And so, besides simply working on issues 21 of education and quality assurance on a case-by-case 22 basis or setting up quality assurance review mechanisms 23 that would be a value not only of the OCCO and the 24 Pediatric Forensic Pathology Unit but that could be 25 superimposed on the province as a whole to create a

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1 better system province-wide. 2 I think that we failed in all that we 3 could do on this service level, the education level and 4 the research level. 5 MS. LINDA ROTHSTEIN: To what extent, if 6 at all, Dr. Smith, do you now acknowledge that you 7 portrayed an attitude that appeared resistant to closer 8 scrutiny by that institution? 9 DR. CHARLES SMITH: I'm sorry if that was 10 what the -- the perception was. I have long been an 11 advocate of quality assurance or quality review 12 mechanisms. I was one of the people who first set up the 13 quality assurance program at the hospital. 14 In the 1980s, we were the first major 15 hospital in Canada to have one, and I have always 16 appreciated quality review processes because they do two 17 (2) things. 18 First of all, they help me avoid mistakes 19 and secondly, they provide educational opportunities. 20 And if that was the perception, then -- 21 then I'm sorry for that perception because it was not 22 what -- what I believed to be what I wanted. 23 MS. LINDA ROTHSTEIN: So your evidence is 24 it was not what you intended? 25 DR. CHARLES SMITH: That's correct.

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1 MS. LINDA ROTHSTEIN: To what extent, if 2 at all, or -- or tell us, Dr. Smith, what, in the end, 3 looking back, was the quality of the peer review; real 4 peer review to -- to which your forensic pathology work 5 was subjected? 6 DR. CHARLES SMITH: Well I -- I think the 7 quality was -- was less than I -- than I thought it was. 8 I put considerable emphasis on the working rounds at the 9 hospital and the insight of colleagues. 10 For me, that was the -- the -- the best 11 place for peer review. I did not have the benefit of 12 someone else reading my autopsy reports though in reading 13 autopsy reports of others, I could -- I could discuss 14 them with them. 15 Only once in a while did I, you know, 16 would I discuss a full autopsy report with a colleague. 17 And so I -- I appreciated peer review at the hospital 18 level, but I understood peer review at -- I now 19 understand peer review at that level to be essentially 20 pediatric disease as opposed to the forensic aspects of 21 things. 22 MS. LINDA ROTHSTEIN: Stopping there for 23 a moment, Dr. Smith. Are you saying that wasn't clear to 24 you at any stage during your career at HSC? 25 DR. CHARLES SMITH: Oh, no. Oh, no. Oh,

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1 no. I understood that, but -- but I also was putting the 2 greatest emphasis on the pediatric side of things, 3 because that was -- that was my training, and that was my 4 expertise. 5 So -- so within that environment, there 6 was, essentially, no forensic review, but then I didn't 7 expect there to be a forensic review. 8 I knew that the Regional Coroners reviewed 9 all autopsy reports, and I knew that some Regional 10 Coroners were very good at it and some had difficulty in 11 understanding them. 12 Some Regional Coroners would phone me up, 13 and -- and try and understand a report and that kind of 14 thing because I would be using language that they might 15 not be familiar with, or would be making observations 16 based on, perhaps, information in the chart that they 17 would -- may not be familiar with. 18 And, so the fact that they communicated 19 with me about that, at least, suggested to me that they 20 were careful in their reviews. 21 There was only one (1) instance in which a 22 Regional Coroner suggested that I correct a report or 23 amend a report. And -- and when Dr. Lucas made that 24 suggestion, I responded because I understood that my 25 wording at one (1) point was unclear.

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1 And while my grammar made sense to me, he 2 pointed out that it could be misinterpreted, and, so I -- 3 I was quite glad for that -- for -- for that review. 4 At the -- at the pathology review level, I 5 -- I placed a confidence in the reviews and the ability 6 of Dr. Chiasson to review my work. 7 I knew that in the beginning, it was a 8 paper review only. More laterally, I was anxious for him 9 to have the slides so that he could -- he could consider 10 any area of difficulty that I might have had, and I -- 11 and I took comfort and felt very confident in that 12 process. 13 MS. LINDA ROTHSTEIN: Do I hear you to be 14 telling us, Dr. Smith, that while you now recognize the 15 frailties of the peer review, if one calls it that, that 16 was available to you at the time; at the time, you did 17 not understand that you were operating in relative 18 isolation. Is that fair? 19 DR. CHARLES SMITH: That's -- that's 20 correct. The -- the peer review process for all of the 21 pathologists in the Province was very limited, and I was 22 anxious to improve that. 23 And as the years went on, I thought it was 24 moving in -- in the right direction, but I still wanted 25 to go beyond that as I recognized there were yet more

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1 opportunities for peer review which would allow for 2 quality assurance and education. 3 MS. LINDA ROTHSTEIN: A third problem 4 that you identified this morning with Ms. Lang were -- 5 with Ms. Langford was what you described as the structure 6 of the Unit, the OPFPU, within the Hospital for Sick 7 Children, and the reporting relationships that that Unit 8 had to other divisions and departments in the hospital as 9 being less than ideal. 10 Have I fairly summarized your point? 11 DR. CHARLES SMITH: I think so, yes. 12 MS. LINDA ROTHSTEIN: Could you please 13 elaborate for us what obstacle that created for someone 14 doing forensic pathology? 15 DR. CHARLES SMITH: I want to be very 16 clear to start with, that I'm -- I am not in anyway 17 critical of my colleagues, and within the hospital, I 18 have had the benefit of extraordinary colleagues in 19 pathology, and in other disciplines, and the involvement 20 of other colleagues from other disciplines was in -- 21 invaluable to me. 22 Where I sought assistance from others on 23 working through difficult cases, I got it, but virtually, 24 all of those instances were in situations wherein there 25 had been a sudden death, and we were looking for medical

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1 causes of death that would be rare or exceptional or 2 could not be investigated in normal means. 3 And so I was using the help or the 4 resources of -- of others in -- in the labs; different 5 labs or elsewhere through the hospital. The -- where I - 6 - I did get help from, at times, was from the SCAN Team, 7 but that was again, on a case-by-case basis. 8 But in the whole thing, I think that -- 9 that what -- what I missed was the potential for the 10 hospital to -- to understand that they had an 11 extraordinary opportunity for education, for research, 12 for advancing the science as well as to work through the 13 improving of the quality of the work. 14 And -- but that would have taken resources 15 and that would have required an effort, and I don't think 16 that I did as good a job as I could of in -- in terms of 17 bringing about such changes. 18 And I don't think that the -- that the 19 hospital recognized that that potential was there. We 20 were really just part of the Department of Pathology 21 doing work for the Chief Coroner's Office. 22 I'm sorry, that's been a long and rambling 23 answer. I don't know if I answered your question. 24 MS. LINDA ROTHSTEIN: You have, sir. 25 Your work load; you described it as heavy and stressful,

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1 but not necessarily so very different from your 2 colleagues at the Hospital for Sick Children. 3 So tell us, Dr. Smith, in retrospect, 4 should there have been some limits on your workload, and 5 if so, what kind? 6 DR. CHARLES SMITH: I -- I was always 7 sensitive to the fact that I wanted to pull my weight 8 within the department. And in so, I never wanted there 9 to be a -- a rejigging of work loads such that I did 10 less, and my colleagues had to do more to pick up the 11 slack. 12 I -- I thought that was -- would be very 13 unfair to my colleagues. 14 MS. LINDA ROTHSTEIN: Should you have 15 been doing both surgical and forensic work? Is that a 16 good idea? 17 DR. CHARLES SMITH: I believe it is. 18 They do have competing interests. They are -- though 19 they are pathology, they are -- they are, somewhat, 20 separate disciplines, because they require a different 21 approach. They require diagnostic skills and a different 22 set of -- of diseases or processes. 23 They -- surgical pathology is 24 extraordinarily stressful and -- 25 MS. LINDA ROTHSTEIN: More so than

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1 forensic pathology, is that your inference? 2 DR. CHARLES SMITH: I believe so, yes. 3 Foren -- yeah, in surgical pathology when you are on 4 frozen sections for that day, that is very stressful. 5 When you have -- have to rapidly make decisions about a 6 cancer diagnosis so that -- so that a critically ill 7 child can be treated; that's extraordinarily stressful. 8 In -- in rapid processing of specimens for 9 instance, on a lung biopsy, the decision to turn off a 10 ventilator is often heavily dependent upon the -- the 11 report of a surgical pathologist, and I have stood in the 12 ICU and participated in such decisions. 13 That is, to me, extraordinarily stressful. 14 That is one of the reasons why the post-graduate trainees 15 -- the Residents -- when they came to Sick Kids when I 16 was Program Director, always told me it was the most 17 stressful hospital they worked in in Toronto. 18 It is a very stressful environment. That 19 is not to say that forensic pathology is not stressful. 20 That has different stresses. Especially the stresses of 21 police officers who are standing in the autopsy room, and 22 they need information to help them. And -- and that is 23 stressful, but a different kind of a stress. 24 MS. LINDA ROTHSTEIN: And it's 25 interesting because certainly what we've heard from your

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1 surgical pathology colleagues -- I don't say in unison 2 but to a remarkable degree -- is that many of them chose 3 not to become actively engaged in the forensic side of 4 pathology because they really resisted or were reluctant 5 to embrace all of the stresses attendant upon Court 6 attendance. 7 DR. CHARLES SMITH: That is a different 8 issue completely. I -- I found Court attendance to be -- 9 how can I say this kindly in this environment, one (1) of 10 the worst experiences of -- of my career. 11 I would much prefer to spend time doing 12 difficult frozen sections than to go to Court. 13 MS. LINDA ROTHSTEIN: Really, Dr. Smith? 14 DR. CHARLES SMITH: Yes. 15 MS. LINDA ROTHSTEIN: Didn't you have 16 lots of opportunities then to tell your colleagues that 17 you didn't want to do the forensic cases and that you 18 wanted to take on more surgical ones? 19 DR. CHARLES SMITH: And -- and this is 20 the -- I -- I understand that it sounds like a dichotomy, 21 but this is -- is part of the -- of the very nature of 22 the work I was doing. The downside was Court, but Court 23 wasn't every day. 24 The upside was, the work is 25 extraordinarily challenging. It's absolutely

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1 fascinating; rewarding beyond that which I can express to 2 you. How -- let me be personal here. 3 My own experience with the death of a 4 child gave me a certain sense of the -- of the pain that 5 a parent can know and I saw, as well, some value in 6 trying to give parents the best information possible. 7 And the -- the downside of Court which I 8 generally really didn't like, unless it was a Coroner's 9 Court, was offset by -- by other parts of the job which 10 were unique and which -- and which we, at the Hospital 11 for Sick Children, were privileged to be involved in that 12 many people couldn't. 13 MS. LINDA ROTHSTEIN: We'll come back to 14 that; that's helpful. You also spoke about your 15 disorganization and your untidiness. Would it be fair to 16 add to that list, procrastination? 17 DR. CHARLES SMITH: That is me. I -- I'm 18 embarrassed, but I confess that. 19 MS. LINDA ROTHSTEIN: So, help us 20 understand what you meant by these words, Dr. Smith, in 21 responding to, again, Ms. Langford's questions about how 22 you dealt with the consequences of your own 23 disorganization and untidiness you said: 24 "I recognize that in my frustration I 25 pointed the fingers at others."

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1 And then you were very apologetic. 2 DR. CHARLES SMITH: Mm-hm. 3 MS. LINDA ROTHSTEIN: Can you tell us, 4 Dr. Smith, what were the sources of your frustration? 5 DR. CHARLES SMITH: Trying to do too 6 much, and -- and doing so in a disorganized manner and 7 doing so without -- without having adequately delegated 8 tasks. I'm the kind of person who when -- when asked to 9 do something by -- by another person in the hospital, 10 would -- would try and accommodate that request, rather 11 than saying, You know what, I just can't do it now. 12 And so I was -- I was often the go-to 13 person when it was difficult to get some sort of special 14 request done, or be involved in, or research project, or 15 any of the myriad of things, so -- so those were my 16 frustrations. 17 MS. LINDA ROTHSTEIN: You're suggesting 18 that the frustrations were really frustrations with 19 yourself. 20 DR. CHARLES SMITH: Yes, largely, yeah, 21 yes, largely -- there's always frustrations in any work 22 environment. 23 MS. LINDA ROTHSTEIN: And I'm interested 24 in what the other frustrations were, and if, for example, 25 Dr. Smith, there was a frustration with the demands of

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1 the Justice System upon you. 2 3 (BRIEF PAUSE) 4 5 DR. CHARLES SMITH: I -- can you run that 6 question by me again -- or -- 7 MS. LINDA ROTHSTEIN: We can come to it. 8 DR. CHARLES SMITH: -- reword it, maybe. 9 MS. LINDA ROTHSTEIN: Okay, all right. 10 DR. CHARLES SMITH: Because I think I can 11 help you with that, but I want to be sure that I'm 12 responding to the right thing. 13 MS. LINDA ROTHSTEIN: We lawyers 14 understand that we place burdens on all of those who 15 assist us in presenting cases. We acknowledge that. 16 And we also know, from our own experience, 17 that often those burdens feel very unfair to those who 18 are asked to show up on time and drop other things and be 19 here and be here with reports and analyses and all of 20 that. 21 My question was really along the lines of 22 asking you, sir, in all candour, when you talk about the 23 frustrations of dealing with your disorganization; your 24 untidiness; your procrastination; whether it was borne of 25 any feelings that there were too many demands, perhaps,

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1 unfair on you? 2 DR. CHARLES SMITH: With regards to the - 3 - to the Justice System, you mean? 4 MS. LINDA ROTHSTEIN: Mm-hm. 5 DR. CHARLES SMITH: That certainly was a 6 source of frustration, yes. And a lot of that I -- I 7 didn't think that that was my fault, but -- but more 8 often I felt kind of like a pawn in a chess game, and -- 9 and I didn't necessarily know what was going on in terms 10 of strategies, and -- 11 MS. LINDA ROTHSTEIN: Mm-hm. 12 DR. CHARLES SMITH: -- and there were 13 frustrations; frustrations with -- at different levels. 14 I think my biggest frustration was being 15 expected to go to Court and give an opinion where I had 16 never spoken to a Crown attorney, and I had no idea what 17 the issues were to be. 18 I had no idea what the expectations were 19 for my evidence. And I had no idea how long I'd be 20 there, and -- and would sometimes be told by the police, 21 or phone up in response to a subpoena, and -- and try and 22 find out whether I'd be there for a half a day or a day, 23 and find out I'm there for two (2), or three (3), or four 24 (4) days -- 25 MS. LINDA ROTHSTEIN: Mm-hm.

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1 DR. CHARLES SMITH: -- and I've got huge 2 problems backed up at the hospital, such that I -- if it 3 was a case in Toronto, I would spend all day in Court, 4 and then go back to the hospital, and -- and work a full 5 day at the hospital, and then go back to Court the next 6 day. 7 MS. LINDA ROTHSTEIN: Mm-hm. 8 DR. CHARLES SMITH: And, so would be 9 frustrated because I would be testifying in Court without 10 adequately preparing for it, and -- and trying to juggle 11 two (2) jobs at once, when one (1) alone is sufficiently 12 stressful. 13 MS. LINDA ROTHSTEIN: Mm-hm. 14 DR. CHARLES SMITH: So that's -- that's 15 the kind of thing that would be part of that frustration 16 that was external to it. 17 MS. LINDA ROTHSTEIN: Thank you, Dr. 18 Smith. You spoke about the problems that you encountered 19 with evidence collection and maintenance and custody, and 20 you said that you were not, at the time, fully attuned to 21 the procedures related to things like continuity of 22 evidence. 23 And while I accept, Dr. Smith, that there 24 may have been times at an early stage in your career 25 where that was certainly true, was that really true in

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1 the mid '90s? 2 DR. CHARLES SMITH: I was much more 3 relaxed in that I certainly recognized for some things 4 that there were rules to be followed; you know, putting a 5 seal on a container of blood that was sent off for 6 toxicology. 7 But at the same time, there were large 8 areas that -- that we did not and could not pay attention 9 to. The security of bodies; security systems concerning 10 slides or tissue blocks or photographs, and that kind of 11 thing. 12 So there were general procedures that 13 could be followed that -- that may not stand up to the 14 rigours of -- of what we -- what I would now understand 15 to be continuity of evidence. Yet at the same time, I 16 believed that that was an accepted approach. 17 MS. LINDA ROTHSTEIN: Okay. 18 DR. CHARLES SMITH: And my failure in 19 that is that when materials were sent to me, I -- I would 20 not keep a log of what was coming in and -- and going out 21 or anything like that. 22 And I realized only, for instance, in 1999 23 or 2000 that -- that that should be done; that there 24 should be a written record of -- of anything from the 25 date a specimen was received to a date it was sent out,

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1 and -- and keep things like courier bills and that sort 2 of thing. 3 So while I thought I understood continuity 4 of evidence, I -- I think my misunderstanding was that my 5 -- my view of continuity of evidence was coloured 6 entirely by the practice of -- of a -- a hospital 7 pathology department. 8 MS. LINDA ROTHSTEIN: So if I -- I take 9 what you're saying and make sure that I've been fair, 10 your evidence is that you did understand the importance 11 at the principle level of all of those engaged with 12 evidence collection maintaining continuity. 13 You understood that basic principle of the 14 Criminal Justice System, did you not? 15 DR. CHARLES SMITH: Well, I think I did, 16 but I don't think I understood what the implications 17 were. MS. LINDA ROTHSTEIN: Well, we'll come to 18 the implications, perhaps, later on when we can look at 19 some specific cases to be fair to you. 20 But there surely were instances, Dr. 21 Smith, when you, as a forensic pathologist, was called to 22 Court for one reason and only one reason and that was to 23 deal with the continuity of evidence issue. 24 Isn't that fair? 25 DR. CHARLES SMITH: I -- I'm having

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1 trouble with your question. Are you saying that I was 2 asked in Court about continuity on a -- on a case? 3 MS. LINDA ROTHSTEIN: I'm -- I'm 4 suggesting that the reason that you went to Court at all, 5 on occasion, was in order to assist the Crown in proving 6 the continuity of evidence. That was the only point of 7 your evidence. 8 DR. CHARLES SMITH: Oh, I -- yeah, I see 9 what you mean. Yes, there was just that one (1) -- that 10 one (1) limited thing. There was an occasion early on 11 when -- when I was asked to testify before -- before 12 Judge Vanic (phonetic) if I -- I -- I don't know if I 13 have the name right, about -- about my collection of 14 blood specimens. 15 I think -- I think that's what it was, 16 yes, something like that. 17 MS. LINDA ROTHSTEIN: There were a number 18 of occasions this morning, Dr. Smith, when you described 19 how you -- I think I'm quoting you fairly: 20 "Fell victim to my tendency to become 21 dogmatic, adversarial, too defensive, 22 speak in black and white terms." 23 Is that a fair encapsulation of what you 24 told Ms. Langford this morning, sir? 25 DR. CHARLES SMITH: Those -- those are

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1 words that I believe I used, yes, yeah. 2 MS. LINDA ROTHSTEIN: What led to that 3 unfortunate dogmatism, Dr. Smith? 4 5 (BRIEF PAUSE) 6 7 DR. CHARLES SMITH: I -- I think that 8 there may be three (3) things here. As I would ponder 9 it, you know, in the days ahead, it could be that I could 10 add to the list. 11 First of all, I think there is a general 12 tendency when experts are questioned, they -- they want 13 to show their expertise and to show their all- 14 encompassing approach so they tend to -- to -- in the 15 first instance, seek to reaffirm what their opinion was, 16 perhaps, rather than stand back and -- and think anew on 17 the matter. 18 And so that -- that would be, I think, the 19 first one and I -- I believe that I'm guilty of that, and 20 -- and I believe many experts would -- would probably 21 acknowledge that as well. And that's -- and that occurs 22 also in -- in rounds and other discussions. 23 Someone says, I think you're wrong and 24 then the first reaction is to say, Well no, I think I'm 25 right because of this reason.

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1 I think the second is that when challenged 2 and when challenged in the Court environment which is a 3 little bit different than a collegial environment where - 4 - where one is more comfortable in front of colleagues 5 admitting inadequacies because your colleagues have 6 expertise that -- that you don't. 7 In the Court environment, there isn't that 8 -- that more comfortable environment of trying to work 9 through a problem. It really is much more adversarial 10 which is -- which is foreign to the way physicians work. 11 And so I -- I think that my -- that my 12 reaction there was -- was again to cause me to become 13 more fixed in my opinion. And there was a third one and 14 I -- and if you'll give me a moment, I'll try and 15 remember that. 16 17 (BRIEF PAUSE) 18 19 DR. CHARLES SMITH: The third one -- the 20 third one I believe may have been a factor even in one 21 (1) or more of these cases. 22 In the very beginning when I went to court 23 in the -- on the few occasions in the 1980s, I -- I 24 honestly believed it was my role to support the Crown 25 attorney. I was there to make a case look good.

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1 That's being very blunt but that was the 2 way I felt and I know when I talked with some of my other 3 colleagues especially those who were junior, we -- we 4 shared the same -- the same kind of an attitude. 5 And -- and I think it -- it took me a long 6 time, years, to acknowledge that my role was really not 7 to make the Crown's case, or to make the case of whoever 8 wanted me in court, but really to be much more impartial. 9 And though into the 1990s I would have 10 told you that that was what my role was, I -- I think I 11 was pretty lousy at executing it. I'm sorry for that -- 12 for that language. I think I was poor at executing it. 13 Though I knew what to do, I didn't do it 14 and so my -- my understanding or my book knowledge was 15 not -- was not borne out by my execution in court. 16 MS. LINDA ROTHSTEIN: And did your desire 17 to make a case for the Crown lead as well to its 18 converse? A feeling that you were there to refute the 19 defence case? 20 DR. CHARLES SMITH: I -- I certainly felt 21 that pressure at times when I walked into court; that 22 pressure from a Crown attorney, yeah. 23 COMMISSIONER STEPHEN GOUDGE: Where did 24 you get the sense originally that that was the role? 25 DR. CHARLES SMITH: I -- I think this is

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1 an expression of ignorance. The first time I went into a 2 court case, you know, I had a -- I had a diagnosis of 3 head injury, of non-accidental head injury. 4 My colleagues had come to a similar thing 5 and I think as we discussed the case in the hospital, it 6 was our -- our view that this was a non-accidental head 7 injury and we were going out there to make sure that a 8 judge and jury understood it. 9 And as I spoke to my colleagues from, you 10 know, radiology or -- or what was, I think, the 11 forerunner to the to SCAN Team, that was the sense that I 12 had. 13 As I think back on it now, I wonder to 14 what degree the -- the -- sometimes the advocacy role 15 that was used by some at the hospital coloured my 16 thinking. 17 I certainly didn't understand sort of that 18 concept of advocacy in the -- in the early '80s but I 19 believe that I was giving an opinion as part of a group 20 that was supposed to -- to make -- make it very clear to 21 everyone what the right diagnosis was. 22 COMMISSIONER STEPHEN GOUDGE: And who at 23 the hospital had an advocacy role then? 24 DR. CHARLES SMITH: Oh, there -- there -- 25 before the SCAN Team was kind of redesigned under Dr.

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1 Mian, which would have been -- I'm -- I'm sorry I can't 2 remember the year, it would have been mid or late '80s 3 perhaps, there was prior to that others who were involved 4 in those cases, and -- and they were -- they were 5 proactive in -- in their investigation. 6 As well, one (1) of the radiologists who I 7 leaned heavily on, a -- a very senior gentleman, also was 8 very clear cut in black and white and -- and that -- 9 and... 10 11 CONTINUED BY MS. LINDA ROTHSTEIN: 12 MS. LINDA ROTHSTEIN: Who was that, Dr. 13 Smith? 14 DR. CHARLES SMITH: Dr. Reilly, R-E-I-L- 15 L-Y. Bernard, Bernie Reilly, who I presume he's deceased 16 now because I was junior and he was towards the end of 17 his career and -- 18 COMMISSIONER STEPHEN GOUDGE: And this 19 was a general atmosphere of advocacy against child abuse? 20 Is that -- 21 DR. CHARLES SMITH: Yes. I think -- I 22 think that's a fair way of doing it. 23 And -- and please understand, sir, that 24 this is a period of time where the whole area of child 25 abuse is just kind of coming into being and so there was

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1 a sense that this is a new area, we need to pay attention 2 to it. 3 And -- and it was almost wanting to 4 educate and kind of bringing attention to this, and I 5 think that might have been part of that advocacy 6 community, or environment, or culture that -- that was 7 exist -- in existence at that time. 8 COMMISSIONER STEPHEN GOUDGE: Thank you. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: So just to follow 12 up on that point before the break, Dr. Smith, you would 13 share the view of those who've already told us that in 14 the mid '80s there as a concern that child abuse was 15 under reported? 16 DR. CHARLES SMITH: Yes. Yes, I agree 17 with that. 18 MS. LINDA ROTHSTEIN: That child abuse 19 was under detected by health care professionals across 20 the board? 21 DR. CHARLES SMITH: I believe that's 22 accurate. 23 MS. LINDA ROTHSTEIN: That child abuse 24 was under prosecuted by the State? 25 DR. CHARLES SMITH: I think that -- I --

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1 I think at that time, I would have agreed with that, yes. 2 MS. LINDA ROTHSTEIN: And that there had 3 to be changes made in order to reverse those trends? 4 DR. CHARLES SMITH: Yes. I agree with 5 that, yes. 6 MS. LINDA ROTHSTEIN: And you saw it, in 7 part, as your job to try and reverse those trends? 8 DR. CHARLES SMITH: I -- I think if you'd 9 asked me that then I would have said no, but -- but I 10 think I -- I did feel that way. 11 It was many years later when -- when 12 mention was made of the possibility of me being part of 13 the SCAN Team, and by that point in time -- but this is 14 many years later -- I recognized that the SCAN Team could 15 be more of an advocate that I could be. 16 And -- and I believe that was by 17 definition their role, and I was reluctant to -- to be 18 painted with that brush. I wasn't part of the SCAN Team; 19 I didn't see live patients. 20 And I was a -- a little concerned about 21 being an advocate, because by that point in the 1990s, I 22 knew at least in theory, if not practice, that I should 23 not be an advocate. 24 But if you set the clock back five (5) or 25 ten (10) years earlier, I believe I was in -- I was part

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1 of that advocacy culture, though I don't think I would 2 have recognized it or stated it at that time. 3 MS. LINDA ROTHSTEIN: And by the mid 4 '90s, how would you have characterized your approach? 5 DR. CHARLES SMITH: Well, I'd like -- I'd 6 like to think, or I thought that I was sort of down the 7 middle of the road, but obviously in -- in situations, I 8 was not, and I veered to the left or to the right at 9 times. 10 MS. LINDA ROTHSTEIN: Commissioner, might 11 this be an opportune time to take our afternoon break? 12 COMMISSIONER STEPHEN GOUDGE: Yes. We 13 will rise then for fifteen (15) minutes. 14 15 --- Upon recessing at 3:19 p.m. 16 --- Upon resuming at 3:31 p.m. 17 18 THE REGISTRAR: All rise. Please be 19 seated. 20 COMMISSIONER STEPHEN GOUDGE: Ms. 21 Rothstein...? 22 MS. LINDA ROTHSTEIN: Thank you very 23 much, Commissioner. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:

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1 MS. LINDA ROTHSTEIN: Dr. Smith, before 2 the afternoon break you were very candid in acknowledging 3 the dogmatism that may have affected your opinions, and 4 particularly your testimony when you ended up defending 5 your opinions in courtrooms. 6 I'm really interested in the front end, 7 the post-mortem, the early stages of your diagnosis. And 8 your reference this morning to the problem that there 9 were at least -- was at least one (1) case, the Nicholas 10 case, where you didn't originally consider the entire 11 range of diagnostic possibilities. 12 And I'm interesting if you -- I'm 13 interested in your telling us, Dr. Smith, what lead to 14 that? 15 DR. CHARLES SMITH: In the Nicholas case 16 I think it was because of -- of the way it was -- it was 17 first presented. 18 It was unusual for me to -- to become so 19 involved in a case that was referred to the Paediatric 20 Death Review Committee, and that was its entrance. 21 I often did handle cases for the 22 Paediatric Death Review Committee in which the pathology 23 was uncertain. But in virtually all of those cases, the 24 uncertainty of the pathology had to do with a natural 25 disease, and so it was typical for me to take a difficult

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1 case that none of the other members of the Committee 2 could handle, because the -- the key to unlocking it 3 appeared to be the pathology. 4 In -- in Nicholas' case, we similarly 5 believed the key to unlocking it was the pathology, but 6 by the time we'd finished the initial discussions at the 7 -- at the Committee, I essentially saw, as we had tossed 8 some information around in a -- in a very brief and 9 informal way, that the -- the direction to go on that one 10 (1) was to look at the issue of head injury. 11 It didn't look like we could -- or I could 12 come up with a diagnosis of natural disease, and I think 13 that that was part of my -- my blinkering or my -- my 14 focussed approach, was -- was that I didn't make as -- as 15 an extraordinary an effort or as great an effort as I did 16 with other cases where at the -- at the initial 17 assignment of case it -- it was really clear this was -- 18 was likely a natural disease. 19 MS. LINDA ROTHSTEIN: Would it be fair to 20 say, Dr. Smith, that your blinkering, to use your word, 21 was in part the result of a focus on what you believed 22 was the lack of credibility of the complete -- competing 23 explanation for Nicholas' death; that is to say, the 24 mother's description -- 25 DR. CHARLES SMITH: Yeah, of the event.

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1 MS. LINDA ROTHSTEIN: -- of the event. 2 DR. CHARLES SMITH: Yes. Yes, I 3 recognize that. 4 MS. LINDA ROTHSTEIN: And would it be 5 fair to say, Dr. Smith, that that failing, that blinkered 6 approach, effected some of your other conclusions a well 7 -- as well? 8 DR. CHARLES SMITH: In the Nicholas case? 9 MS. LINDA ROTHSTEIN: No, in the Sharon 10 case, for example. That you weren't prepared at some 11 stage to incorporate into your range of diagnostic 12 possibilities, dog bites. 13 DR. CHARLES SMITH: I think in the Sharon 14 case, that I was not -- I was not as blinkered. I was 15 certainly embarrassed by the fact that I had made a 16 diagnostic error, which some people thought was really 17 straightforward. 18 And I was -- was embarrassed that I should 19 have missed something that someone thought was 20 straightforward, but -- but by the time the serious 21 questioning came along and the issue of the -- of the 22 exhumation and second autopsy I realized that I was 23 beyond my depth in that case because I lacked the 24 expertise. 25 And so I don't think in that case I was

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1 narrow in focus, I think I was trying to be as uninvolved 2 as I could because I was so embarrassed by the original 3 diagnostic error. 4 MS. LINDA ROTHSTEIN: We'll come back to 5 that perhaps tomorrow. 6 You dis -- you were described by others 7 from time to time who have testified at this Inquiry as 8 an icon. Did you have any awareness that was the 9 percep -- a perception of some of your colleagues? 10 DR. CHARLES SMITH: I -- that term has 11 never been used. 12 MS. LINDA ROTHSTEIN: But you know what 13 it means, Dr. Smith, it means that you were the leader, 14 you were the opinion leader when it came to pediatric 15 forensic pathology in the Province of Ontario, if not in 16 the country. 17 Did you have some awareness that others, 18 colleagues, persons in the know, viewed you that way? 19 DR. CHARLES SMITH: I -- I was aware that 20 I was one (1) of the few people in the country who had 21 significant experience with cases; I certainly didn't 22 believe I was the only one (1), and I -- and I hold other 23 -- some other colleagues in pediatric pathology in very 24 high regard in that area. 25 I certainly understood I was the go to

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1 person in Ontario, but -- but it -- I -- I don't think it 2 was because I was head and shoulders above everyone else, 3 as much as there weren't a lot of people who were willing 4 to get involved in these. 5 And having falling into the -- or being 6 chosen for the position, I saw that that's what my role 7 was. But I don't think I -- I would have held myself in 8 such an iconic position, I would have pointed to people 9 who -- who I believe were outstanding pediatric 10 pathologists who had published in the area of pediatric 11 forensic pathology and whose work I had a great deal of 12 respect for. 13 MS. LINDA ROTHSTEIN: Who were those? 14 DR. CHARLES SMITH: Dr. Margaret Norman 15 was at one point a neuropathologist at Sick Kids who 16 became the first Chief of Pathology at the Children's 17 Hospital of Eastern Ontario and was Dr. Blair Carpenter's 18 predecessor and mentor. 19 And then she went to Vancouver in the late 20 '70s or early '80s and helped set up the British Columbia 21 Children's Hospital that was just being built at the 22 time, and she was the first Chief of the department there 23 and was a -- a Chief to -- to Dr. Jim Demmick and Dr. 24 Glen Taylor who you would have met here. 25 And -- and I would -- certainly in the

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1 '80s and into the 1990s I would have put -- I would have 2 put Dr. Norman as the number one person in Canada who I 3 respected. 4 And then closely following behind that, I 5 think I would have put Dr. Dimmick, Dr. Jim Dimmick, who 6 also was at BC Children's. 7 I had -- had a great deal of respect for 8 the -- for their expertise and of course during much of 9 that time Dr. Glen Taylor was there whose diagnostic 10 abilities I also hold in high regard. 11 So those were the three (3) and then Dr. 12 Jean Michaud, who you've met here, was a neuropathologist 13 at Sainte-Justine in Montreal. And he like -- likewise 14 would be someone who I would have pointed to and said, 15 Here is a man of expertise whose opinions are -- are well 16 regarded. 17 MS. LINDA ROTHSTEIN: Whether or not you 18 were aware of the perception of others, did you have a 19 view, a sense, that you were required to be infallible, 20 Dr. Smith? 21 22 (BRIEF PAUSE) 23 24 DR. CHARLES SMITH: I don't think I'd 25 ever considered -- considered that. I -- I certainly

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1 felt that much weight was being placed on my opinion by 2 others and especially the Office of the Chief Coroner. 3 But I'd certainly discussed enough cases 4 with -- with Dr. Cairns after he -- he was appointed 5 there that -- that I felt that at least he understood 6 some of the uncertainties and the limits of my abilities. 7 MS. LINDA ROTHSTEIN: In which cases did 8 he gain that understanding, do you think? 9 DR. CHARLES SMITH: I -- I don't know if 10 I can even think of one (1) specifically. Some were mine 11 and some were other cases that we -- we would have 12 discussed that I didn't have an involvement in and he 13 would -- he would come along and tell me about them and 14 then ask my opinions and we'd work through issues and 15 draw parallels between those. 16 Those were again things like head injury 17 cases or accidental versus non-accidental injury kind of 18 cases. 19 MS. LINDA ROTHSTEIN: I'd like to now 20 turn to the question of how it was you became interested 21 in pediatric pathology and following that, pediatric 22 forensic pathology; you've touched on that already. Your 23 counsel has already elicited some information. 24 But firstly, Dr. Smith, was pediatric 25 pathology a passion?

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1 DR. CHARLES SMITH: Never in the 2 beginning and in fact I -- I really fell -- fell into it 3 by accident. At the University of Saskatchewan, there 4 was no one who had any expertise in pediatric pathology. 5 No one whatsoever who -- who seemed to have a special 6 understanding of that area. 7 In Toronto, of course, pediatric diseases 8 are sequestered and so one wouldn't really be exposed to 9 much, apart from going to the Hospital for Sick Children, 10 and that was not a mandatory rotation for residents. 11 When I completed my third year at Princess 12 Margaret/Wellesley Hospitals I had been asked to join the 13 staff there at the end of my fourth year to be part of 14 Princess Margaret Hospital in cancer diagnosis. And that 15 was quite an honour in -- in my opinion. 16 I was -- I wanted to learn new diagnostic 17 techniques that could be brought to Princess Margaret 18 Hospital. I was aware that the Hospital for Sick 19 Children had just appointed a new Chief of the 20 department, Dr. Jim Phillips. It was a department that - 21 - that needed development and growth. 22 I did not know Dr. Phillips but I knew of 23 his reputation as an outstanding diagnis -- diagnostician 24 at Toronto General Hospital, and I knew he was a 25 researcher who was involved in some very interesting

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1 research areas that I thought would be of value. 2 So I -- I opted to come to the Hospital 3 for Sick Children for six (6) months to -- to learn an 4 area that I knew little of. To learn from people who I 5 did not know personally but, as Dr. Phillips and other 6 names that have been mentioned, I had a great deal of 7 respect for, and to learn new techniques. 8 When I came to the hospital, after a short 9 while I realized how fascinating the field was. I 10 certainly had no understanding of that beforehand. I 11 asked if I could remain for the full year, because I 12 appreciated the instruction and the opportunity to work 13 there. 14 And by the end -- by the end of that year 15 I -- I had turned down the position at Princess Margaret 16 and was hoping to define a career within pediatric 17 pathology. 18 MS. LINDA ROTHSTEIN: And forensic 19 pathology, you've touched on it; how interesting it was, 20 how challenging it was. You've also mentioned just this 21 afternoon, Dr. Smith, about your own personal tragedy. 22 What was it that drew you to forensics? 23 DR. CHARLES SMITH: The cases that I was 24 involved in as a resident, that I had the privilege of in 25 -- of being involved in, that were -- were interesting

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1 were the sudden death cases. 2 And -- and within -- within forensics 3 there were the -- there were the medical complications of 4 disease, and those were interesting, but -- but there's 5 also -- those also are represented in the hospital side 6 of autopsies; there's often not a big difference between 7 those. 8 But the -- but the cases that were more 9 forensic were the sudden death cases and then some of the 10 accident cases which were -- which were tragic. 11 Within the -- the group of sudden deaths 12 there was very interesting work going on in Sudden Infant 13 Death Syndrome by Dr. Becker and Dr. Cutz. And there 14 were diseases that were the sort of thing that one would 15 only see one (1) or two (2) sentences in a textbook, 16 because they were so rare or uncommon, that could present 17 a sudden infant death or sudden death in the -- and -- 18 and as I -- I tried to explain to Ms. Langford, those 19 were -- those were fascinating. 20 There's another part of that as well, 21 which -- which I found very rewarding and that is that, 22 as you aware, pathologists essentially serve as 23 consultants to consultants. 24 The pathologist helps the surgeon, they 25 help the clinician, they look at biopsies, and so they

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1 are a consultant to the consultants, and there's no 2 involvement in direct patient care whatsoever, though we 3 recognize our influence on patient care. 4 Part of -- part of doing the -- the sudden 5 death cases at that time was -- was a practice that 6 occurred at the hospital that had gone on for many years, 7 and indeed went -- went on until well into the 1990s and 8 that is that -- that a family or a parent would come down 9 to identify the body of a child or a baby who had just 10 died. 11 And in that situation it was the 12 pathologist who actually met with the family, interviewed 13 them, got information concerning the circumstances of 14 death, got the medical history. 15 If it -- if -- if it looked like or 16 sounded like it could be SIDS, it was typical for the 17 pathologist to then tell the family something about 18 Sudden Infant Death Syndrome with the proviso that the 19 autopsy is not done, but here's a possibility. 20 And -- and it was a point of education as 21 well. And -- and these were very difficult 22 circumstances, because you're dealing with parents who 23 have just lost a child and who are going through the 24 painful process of grieving. Yet at the same time it was 25 rewarding, because the coroner's system at that time

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1 often didn't involve the parents. 2 It would be typical for a coroner in 3 Toronto to go to a hospital where a SIDS death had 4 occurred hours after the event; the parents had left. 5 The coroner would simply go in, look at the body, read -- 6 read the brief hospital record, and may or may not have 7 any information from the police and would provide a -- a 8 one (1) or two (2) sentence history: Baby found dead in 9 bed; VSA at local hospital. That -- that kind of thing. 10 And, so there was an extraordinary 11 opportunity for pathologists to provide information to a 12 family who -- which -- which was sort of orphaned by the 13 system. 14 That was not a significant part of 15 forensic pathology, but that -- but that I perceived to 16 be an important part -- 17 MS. LINDA ROTHSTEIN: Right. 18 DR. CHARLES SMITH: -- because it 19 underscored the -- the critical importance of the autopsy 20 to a family. 21 MS. LINDA ROTHSTEIN: Thank you, Dr. 22 Smith. Sorry to interrupt you. 23 DR. CHARLES SMITH: No, that's fine. 24 MS. LINDA ROTHSTEIN: Catherine Porter of 25 the Toronto Star wrote an article about you on November

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1 the 13th, 2005, in which she quoted you as saying: 2 "I am passionate about my work. There 3 is nothing more heart wrenching than a 4 mother with empty arms seeking 5 assurances as to why her baby died." 6 The first question, Dr. Smith, did you in 7 fact say that? 8 DR. CHARLES SMITH: I -- I don't remember 9 the interview. But -- but I do believe that from time to 10 time I would have used the word "passionate." 11 Yes, I -- I think that's an apt 12 description of the feeling I had towards the work and the 13 challenges, and the opportunity of doing that work in the 14 environment where I worked. 15 MS. LINDA ROTHSTEIN: She also quotes 16 you, sir, at -- in that same article at the top as saying 17 these words: 18 "I have a thing against people who hurt 19 children." 20 Did you say that? 21 DR. CHARLES SMITH: Well, I -- that's not 22 -- it's not a good statement, but -- but I think that -- 23 that within my heart of hearts, that's how I feel. Yeah. 24 MS. LINDA ROTHSTEIN: Well, and help us 25 with that, Dr. Smith.

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1 DR. CHARLES SMITH: Mm-hm. 2 MS. LINDA ROTHSTEIN: You say it's not a 3 good statement. I take it you agree at one (1) level 4 that statement would represent the feeling of all right 5 thinking people. 6 DR. CHARLES SMITH: There is that, but -- 7 but my -- my difficulty with that is that it looks like 8 I'm biassed in my approach. 9 On one (1) hand, I want to help families; 10 on the other hand, I want to -- I want to be an advocate 11 against some family member, or some person. 12 And, so -- and, so I'm a little bit 13 embarrassed by -- by that comment, or that juxtaposition. 14 MS. LINDA ROTHSTEIN: Or it may simply 15 suggest that you were a little too emotionally involved 16 in some of these cases. 17 18 (BRIEF PAUSE) 19 20 DR. CHARLES SMITH: I don't think I would 21 have said that at the time, but now that I think back on 22 it, I -- I would open the door of that possibility a 23 crack. 24 MS. LINDA ROTHSTEIN: Indeed is that one 25 (1) of the pitfalls of this very, very difficult job, of

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1 pediatric forensic pathology, keeping the right amount of 2 professional distance at all times? 3 4 (BRIEF PAUSE) 5 6 DR. CHARLES SMITH: I believe it is. And 7 I'll -- if I could just make one (1) statement. 8 MS. LINDA ROTHSTEIN: Please do. 9 DR. CHARLES SMITH: I did have residents 10 who -- who we trained at Sick Kids who were emotionally 11 distraught over doing a pediatric autopsy, as opposed to 12 an adult autopsy. 13 And so I believe that -- that we're all 14 subject to a greater or a lesser degree by -- by the -- 15 the influence or the -- or the sadness of -- of the death 16 of a child. 17 MS. LINDA ROTHSTEIN: Dr. Smith, I have 18 some questions for you about your performance 19 evaluations, the ones that you completed; your self- 20 evaluations. 21 If you would take Volume III of the 22 materials that you have to your left. 23 DR. CHARLES SMITH: I have it, yes. 24 MS. LINDA ROTHSTEIN: Great. And we have 25 a number of your performance evaluations starting in

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1 1995. Could you turn to the second tab, if you would, 2 Dr. Smith, the memorandum you did to Dr. Becker on July 3 the 23rd, 1996. It's, Registrar, 137695. 4 And if you turn to the bottom of that 5 page, you describe your professional and personal 6 development. Am I right in understanding that while you 7 describe it as "personal", it's only the personal 8 development that you thought was relevant to your work 9 for the hospital. 10 Is that a fair conclusion for me to have 11 drawn? 12 DR. CHARLES SMITH: That's how -- I don't 13 remember this -- this document, but that's how I think I 14 would interpret it, yes. 15 MS. LINDA ROTHSTEIN: Okay. You say, Dr. 16 Smith: 17 "My passion is for the pediatric 18 autopsy with a strong interest in those 19 of forensic interest. This has been 20 the centre of my development." 21 So that's very much what you've just told 22 us -- 23 DR. CHARLES SMITH: Mm-hm. 24 MS. LINDA ROTHSTEIN: -- this afternoon. 25 You then go on to say, Doctor:

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1 "To effect improvements in this area, I 2 have worked towards that formation of 3 specialized investigation teams, the 4 creation of intra-provincial standards 5 and changes in Criminal Code 6 legislation through a Senate Committee 7 on judicial matters." 8 Can we start with those one (1) by one 9 (1). I'm not aware of what the specialized investigation 10 teams are to which you were referring in that memo. Can 11 you assist us, please? 12 DR. CHARLES SMITH: I was trying to -- to 13 get the -- the death investigation system to effect two 14 (2) or three (3) things. 15 I was -- was trying to get the Office of 16 the Chief Coroner to, first of all, recognize that the -- 17 the pediatric autopsy -- or the performance of the 18 pediatric autopsy was not at all standardized throughout 19 Ontario in terms of -- of how well the work was been 20 doing because of varying levels of expertise. 21 This was written some months after memo 22 631 came out -- 23 MS. LINDA ROTHSTEIN: Okay. 24 DR. CHARLES SMITH: -- so there was at 25 least a standard.

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1 But -- but the reality was that in many 2 situations we were seeing cases wherein though the 3 standards were essentially being met, there was still 4 cause for uncertainty be -- about the accuracy of the 5 cause of death. And so on the first hand I was trying to 6 get some centralization of the pediatric autopsies by the 7 coroner's system into -- into centres of pediatric 8 excellence. 9 That was happening, largely in Ottawa, and 10 in Toronto it was; Hamilton, fortunately it was, but 11 through the rest of the Province it was -- it was random. 12 Some of the cases in northern Ontario 13 would occasionally go to Winnipeg, but once you move far 14 outside of the city limits of Ottawa, Toronto or 15 Hamilton, the -- the quality of the autopsy was dependent 16 upon the -- the individual pathologist. 17 And -- and this is not to -- not to case 18 dispersions on them, but the degree of expertise in 19 training varied considerably. And that's because it's an 20 area wherein most pathologists in Ontario who are doing 21 coroner's work outside of these three (3) centres in -- 22 in those years might only do one (1) a year or two (2) a 23 year, and -- and so they didn't have the critical mass to 24 develop expertise. 25 And so on the first hand I was -- I was

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1 trying to work toward centralization of the pediatric 2 autopsy. The -- the second thing which I had tried to 3 work for in -- in centres like Toronto, was trying to 4 identify a subset of coroners who had special interest or 5 understanding of pediatric cases. 6 So that -- so that when a pediatric death 7 had occurred, rather than the coroner handling it, being 8 simply the next coroner on the list, the coroner who 9 would be asked to handle it would be someone who was 10 identified with special abilities. 11 The third was that I was -- was pushing 12 for the identification of -- of police officers in 13 Ontario who could act as a resource for the others. And 14 once again, police forces are a little bit like coroners; 15 if you -- if you live in many communities, a police 16 officer who deals with the case would deal with -- with a 17 pediatric death very rarely. 18 Often, the first police officer on the 19 scene is young and inexperienced and may be -- may -- may 20 be undergoing the same kind of emotional reaction that 21 other -- that -- that my trainees have had. 22 And -- and so I was pushing for the 23 recognition of -- of people who would be available, not 24 simply within a police department, but outside. In 25 Toronto I recognized there were some members of the

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1 homicide squad who had an interest and -- and experience 2 in the area and could help others. That was certainly 3 true of others in the Ontario Provincial Police. 4 And so I was hoping that somehow 5 jurisdictional boundaries could be lessened so that it 6 was possible and indeed encouraged for a detective or an 7 investigator in one (1) police department simply to pick 8 up the phone and -- and seek help from someone who may 9 not be in his or her jurisdiction, but who would be able 10 to help them. 11 So, as it were, almost a specialized 12 police investi -- 13 MS. LINDA ROTHSTEIN: Pediatric? 14 DR. CHARLES SMITH: Yeah. 15 MS. LINDA ROTHSTEIN: Paediatric Death 16 Investigation Team. 17 DR. CHARLES SMITH: Thank you, yes, yes. 18 And -- and the same for Crown Attorneys, 19 though I knew very few Crown attorneys who had dealt with 20 pediatric cases. 21 By the same token, I felt that -- that if 22 that could continue all the way up to that level, then it 23 would be reasonable to hand a Crown attorney this kind of 24 a case if -- is she or he had dealt with that and --- and 25 had -- had a job such that they could devote themselves

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1 to the -- to the extra time that these cases, these 2 difficult cases, could demand. 3 So that was my -- that was my dream. 4 MS. LINDA ROTHSTEIN: And am I correct in 5 surmising that you would still maintain that that is an 6 appropriate item for the Commissioner to recommend? 7 That there be that kind of specialized 8 training for police officers, and Crowns, and others who 9 are engaged in pediatric forensic pathology? 10 DR. CHARLES SMITH: Yes, I -- I would. 11 I'm -- I'm a little reluctant to make recommendations -- 12 COMMISSIONER STEPHEN GOUDGE: Fair 13 enough. 14 DR. CHARLES SMITH: -- but if you made it 15 for me, I would modify it at one (1) point here, and -- 16 and I -- and this represents, again, the difference 17 between then and now. 18 At that point I wanted them centralized to 19 pediatric centres. Now, of course, I would -- I would 20 want it to be in pediatric centres which have the 21 advantage of forensic pathologists who can be a part of 22 that process so that the case can really be triaged 23 between whether this is pediatric expertise, or forensic, 24 or maybe in the beginning it has to be two (2), and we 25 can decide that later.

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1 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: Okay. What were 4 the inter-provincial standards you were hoping to create? 5 DR. CHARLES SMITH: Oh, with the creation 6 of the -- of memo 631, I was -- I was hoping that we 7 could somehow work to a situation wherein there would be 8 some uniformity, and in fact some -- some input from -- 9 from others so that the memo 631, which I recognize to be 10 a reasonable first start, but nothing -- nothing of what 11 it could possibly be, could be -- could be implemented in 12 different areas. 13 I was well aware that some areas in Canada 14 had -- had wonderful expertise, as I've -- as I've 15 mentioned to you. 16 MS. LINDA ROTHSTEIN: British Columbia. 17 DR. CHARLES SMITH: British Columbia or - 18 - or Montreal, for instance. 19 And so there were places where people, as 20 I perceived, that were doing very good work. There were 21 places where people were struggling. There were places 22 where there were -- where excellent ancillary diagnostic 23 resources; you know, toxicology, x-rays, all of those 24 things. 25 There were places where -- where people

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1 needed help. And so -- and so it was part of my dream 2 that -- that by being of persuasion and simply making 3 contacts and -- and meeting and discussing with people, 4 it would be possible to bring about some standardization 5 so that -- so that any death, not simply in Ontario, but 6 any death in Canada could be handled by people who -- who 7 understood the minimum that needed to be done, who -- who 8 were comfortable in doing what needed to be done, and who 9 knew who to turn to. 10 MS. LINDA ROTHSTEIN: And finally, Dr. 11 Smith, what changes did you want to see in the Criminal 12 Code in 1996? 13 DR. CHARLES SMITH: Well, this is -- this 14 is really the area where I was least knowledgeable, yet I 15 was aware that there were -- there were people in Ottawa, 16 in the Justice Department, who were -- who were looking 17 or continuously looking at changes in the Criminal Code 18 in Canada, and -- and I had -- I had spoke to some, and - 19 - and at this point I can't even remember who. 20 And I also understood that there was a 21 Senate Committee on judicial matters -- and once again I 22 plead ignorance here; I don't understand the justice side 23 of system -- of the system, but that's what I understood, 24 and -- and I had begun to try and -- and see if at that 25 level things could be done.

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1 What I was really most interested in were 2 -- were two things; to see if it was possible to -- to 3 define a Criminal Code that would recognize child abuse 4 or recognize special features of child abuse. Because in 5 my informal discussions, it seemed to me that -- that the 6 laws didn't always fit the right circumstance. 7 The second thing which I felt -- 8 MS. LINDA ROTHSTEIN: Stopping you there 9 for a moment. 10 DR. CHARLES SMITH: Okay. 11 MS. LINDA ROTHSTEIN: Do I hear you to 12 say that you wanted to see changes in the Criminal Code 13 to recognize child abuse, or particular kinds of child 14 abuse, and can I finish that thought by suggesting in 15 order to make it easier to prosecute sus -- perpetrators 16 of child abuse? 17 DR. CHARLES SMITH: Well, I -- I don't 18 think -- 19 MS. LINDA ROTHSTEIN: Is that -- 20 DR. CHARLES SMITH: No. 21 MS. LINDA ROTHSTEIN: -- what you were -- 22 DR. CHARLES SMITH: No. 23 MS. LINDA ROTHSTEIN: -- intending to do? 24 DR. CHARLES SMITH: No. Not -- not 25 easier.

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  1                 MS. LINDA ROTHSTEIN:   Not innocent
  2  people, Doctor, I'm not suggesting --
  3                 DR. CHARLES SMITH:   No.  No.
  4                 MS. LINDA ROTHSTEIN:   -- that, but
  5  perpetrators of child abuse.
  6                 DR. CHARLES SMITH:   Yeah.  To try and
  7  make a description fit the situation.
  8                 MS. LINDA ROTHSTEIN:   Can you give us an
  9  example please?
 10  
 11                       (BRIEF PAUSE)
 12  
 13                 MS. LINDA ROTHSTEIN:   This comes up in
 14  your subsequent --
 15                 DR. CHARLES SMITH:   Yeah.
 16                 MS. LINDA ROTHSTEIN:   -- evaluations as
 17  well.
 18                 DR. CHARLES SMITH:   Yeah, okay.  Yeah.
 19                 MS. LINDA ROTHSTEIN:   So I'm assuming it  
 20  was --
 21                 DR. CHARLES SMITH:   Yeah.
 22                 MS. LINDA ROTHSTEIN:   -- more then a one
 23  (1) year sort of interest.
 24                 DR. CHARLES SMITH:   No, no.  That's
 25  correct.  Let me -- let me �- let me give you an example.

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1 And please understand that -- that I -- you know, my -- 2 my ignorance of the -- of the judicial system is -- is 3 great. I recognize it's greater now then it was, but it 4 is great. 5 I found it frustrating that there seemed 6 to be no simple way of dealing with the death of a child 7 that resulted from a violent act that acknowledged that 8 that violent act was not planned and pre-meditated. 9 I -- I was uncomfortable that such an 10 impulsive act would often be the subject of -- of 11 something like first-degree murder. 12 And -- and I was uncomfortable because on 13 a pathologic basis it -- it can be difficult to answer 14 some of the questions in court. So I was really hoping 15 that there was some way of defining something that didn't 16 -- didn't require such a threshold with such a 17 recognition of -- of wrong doing. 18 So it wasn't that I was trying to push 19 cases up in terms of the severity in the Criminal Code, 20 but rather to have a code that matched the situation. 21 Just as many years earlier the infanticide part of the 22 Code had been created to deal with situations that were - 23 - that were different than -- than a standard homicide 24 that -- that would be more common in an adult 25 environment.

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1 So that was really what I was trying for. 2 MS. LINDA ROTHSTEIN: And what's the 3 reference to a Senate Committee? Were you actually -- 4 DR. CHARLES SMITH: Oh. 5 MS. LINDA ROTHSTEIN: -- working with a 6 Senate Committee? 7 DR. CHARLES SMITH: No. No. I was 8 trying to make contact with the Senate in Ottawa. I 9 ended up doing so with one Senator over -- over a period 10 of time, but -- but it never went. 11 MS. LINDA ROTHSTEIN: But who was that? 12 DR. CHARLES SMITH: A woman named Anne 13 Cools. 14 MS. LINDA ROTHSTEIN: Cools? 15 DR. CHARLES SMITH: Yeah. 16 MS. LINDA ROTHSTEIN: Mm-hm. All right. 17 DR. CHARLES SMITH: The other -- the 18 other part of the Criminal Code Legislation that I -- I 19 was hoping for is the issue of mutual disclosure. 20 And -- to me it seemed that -- that this 21 was somehow used as a -- as an ambush tool. And -- and 22 by this point in time, in the mid 1990s or moving into 23 the latter half of the 1990s, I sat through a couple of 24 lectures in the American Academy meeting on things like 25 the Frye test or Delbert (phonetic) or Federal Rules of

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1 Evidence in -- in the States. 2 And it struck me, based on what I was 3 hearing others talk about, that there was value to mutual 4 disclosure because it really gave both sides an 5 opportunity to stop and say, Let me think about this. 6 I -- I certainly didn't believe that it 7 would ever be possible to get two (2) people in the room 8 to agree though I had chatted with colleagues in the 9 States who -- who had, by some sort of a -- a one-off 10 agreement on a case, actually done that. And they said 11 it was valuable. 12 And so I thought, you know, wouldn't this 13 be good so that -- so that a pathologist who goes into 14 Court, and this is now for the prosecution because 15 presumably the defence has disclosure, could stand there 16 and say, You know what, I -- I need to reconsider my 17 opinion. 18 MS. LINDA ROTHSTEIN: So when you talk 19 about mutual disclosure, I take it you were particularly 20 interested in creating an obligation on the defence to 21 disclose their expert opinions that disputed the Crown's 22 expert opinions. Is that fair? 23 DR. CHARLES SMITH: That -- that is how I 24 saw it because it was my understanding that -- that it 25 was more one-sided than the other.

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1 MS. LINDA ROTHSTEIN: And that was a 2 correct understanding. 3 DR. CHARLES SMITH: Oh, thank you. 4 MS. LINDA ROTHSTEIN: So who were you 5 working with on trying to push forward those changes? I 6 understand that you don't remember the Justice 7 Department -- 8 DR. CHARLES SMITH: No. 9 MS. LINDA ROTHSTEIN: -- officials. But 10 were there others in the Coroner's Office, was this 11 something that some of your colleagues there shared as a 12 -- as an advocacy piece? 13 DR. CHARLES SMITH: I'd certainly 14 discussed it with Dr. Cairns. That had come up on -- on 15 occasions, and I can't tell you whether it was before 16 this point in time or afterwards. 17 But I had certainly discussed it with him. 18 I -- I remember and this is probably not at this point in 19 time, a little bit later I believe, Mr. Justice Campbell 20 -- Archie Campbell -- 21 MS. LINDA ROTHSTEIN: Yes. 22 DR. CHARLES SMITH: -- do I have the 23 right name? 24 MS. LINDA ROTHSTEIN: Yes. You do. 25 DR. CHARLES SMITH: He wrote a report on

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1 serial murders, the Bernardo -- 2 MS. LINDA ROTHSTEIN: Correct. 3 DR. CHARLES SMITH: -- situation of which 4 I -- I know very little about that. But from what I 5 understood from discussing it with members of the Office 6 of the Chief Coroner and a little bit about in the 7 newspaper, I saw that as -- as being part of a model that 8 could follow or saying, If -- if we can recognize that 9 there's special expertise that's needed, then let's 10 recognize that special expertise needs to be disclosed on 11 both sides so that everyone can solve a problem; not 12 necessarily to get a conviction but maybe to save a lot 13 of money up front so you don't -- you don't even launch 14 into investigations and begin court proceedings when they 15 could be obviated. 16 MS. LINDA ROTHSTEIN: So your work on 17 this, did it continue for some years? There's -- there's 18 note of it in your next performance appraisal of '97, Dr. 19 Smith, the Criminal Code Legislation at the federal 20 level. That's at Tab 3. 21 I believe there's some mention of it as 22 well in the June 1998 performance evaluation. 23 DR. CHARLES SMITH: This was -- this was 24 something that I pushed for. I -- I must not suggest to 25 you that I spent hours and hours and hours on this. No,

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1 this was really a goal. This was one of these things 2 that I thought something could be done that would improve 3 things just as -- as Memo 631 was a small step in that. 4 Memo 631 didn't take me months to write. 5 But it was -- it was something that could be done to 6 improve a system and -- and take what seemed to be good 7 and make it much better. 8 MS. LINDA ROTHSTEIN: Did you ever give 9 any thought to whether it was appropriate for you, as the 10 Director of the OPFPU, to be seeking changes of this 11 nature to the Criminal Code? 12 DR. CHARLES SMITH: No. No, I must say I 13 didn't, no. 14 MS. LINDA ROTHSTEIN: Did you document 15 this activity on your curriculum vitae at the time? 16 DR. CHARLES SMITH: No, I -- I don't 17 think -- no, beca -- my curriculum vitae was essentially 18 publications and lectures and -- and committees. And 19 none of this came up within that. 20 This is really -- 21 MS. LINDA ROTHSTEIN: You didn't think it 22 was relevant for the defence to know that you were, as 23 you said -- you've just said, someone who was pushing for 24 these kinds of changes, that that might disclose perhaps, 25 a level of advocacy that was relevant to your testimony?

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1 DR. CHARLES SMITH: The thought never 2 crossed my mind, no. 3 MS. LINDA ROTHSTEIN: Okay. And then if 4 we turn to the July 23rd, 1996 -- or rather the, sorry, 5 the May 14th, 1997 self-evaluation, 137574. You talk 6 about the effort of using the vehicle of Coroner's 7 Inquest to affect program changes at the provincial level 8 and to modify Criminal Code legislation at the federal 9 level. 10 Can -- such efforts have been accompanied 11 by substantial involvement by the media. Are you 12 suggesting there for starters, Dr. Smith, that you were 13 actively engaging the media in assisting you in this 14 effort? 15 DR. CHARLES SMITH: Can you give me a 16 moment to read -- 17 MS. LINDA ROTHSTEIN: By all means. 18 DR. CHARLES SMITH: -- just to read this? 19 MS. LINDA ROTHSTEIN: Read the whole 20 paragraph, sir. 21 DR. CHARLES SMITH: I think -- I -- I'm 22 not completely certain what is meant by that. These 23 words don't -- don't -- 24 MS. LINDA ROTHSTEIN: Ring a bell? 25 DR. CHARLES SMITH: -- ring a bell. I --

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1 I do recognize that there had been a series of inquests 2 relating to Children's Aid Society and such. 3 MS. LINDA ROTHSTEIN: Mm-hm. 4 DR. CHARLES SMITH: And that was in and 5 around this time period. There had also been significant 6 media attention to the issue of -- of improving death 7 investigations. 8 Part of the Memo 631, but that was -- that 9 was really two (2) years earlier, so there was change 10 that was occurring, but -- but at this point in time, I - 11 - I can't remember specifically what I was thinking of. 12 I -- I do remember though, that -- that 13 there had been significant involvement by -- by some 14 members of the media; some by the Chief Coroner's Office, 15 and some in which they had encouraged me to assist the 16 media in that. 17 MS. LINDA ROTHSTEIN: And did you? 18 DR. CHARLES SMITH: I did, yes. I think, 19 but one would need to check the dates. I think this may 20 be referenced to a series of stories that were done in 21 the Toronto Star by -- 22 MS. LINDA ROTHSTEIN: Mr. Dobbin -- 23 Donovan -- Kevin Donovan? 24 DR. CHARLES SMITH: Yeah, Kevin Donovan 25 and Moira Welsh. Yes, I -- it -- that could be, but I

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1 could be wrong. 2 MS. LINDA ROTHSTEIN: Right. I think 3 you're right. I think that's exactly the timing. And 4 then in June '98, you say -- I think on, the more or 5 less, same theme, that: 6 "I have continued to be involved in 7 reshaping the nature of pediatric death 8 investigations in Canada. [sorry, 9 Registrar, 137577, June 15, 1998] And 10 have helped to change practices in 11 family law here in Ontario." 12 Stopping there, what were the changes in 13 family law to which you were referring, Dr. Smith? 14 DR. CHARLES SMITH: Right now that 15 escapes me. I -- I'm sorry. I -- I can't remember that 16 right now. 17 MS. LINDA ROTHSTEIN: 18 "At their request [I'm not sure whose 19 request, maybe you can help us] I have 20 met with politicians, both federally 21 and provincially, in the hope of 22 effecting legislative changes. This is 23 a spin off of the effect of heightened 24 media coverage of CAS related deaths in 25 the past months."

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1 And you estimate your time allocated to 2 that as about 5 percent. Can you help us with the 3 politicians, federal or provincial with whom you met, and 4 what the purpose of those meetings was? 5 DR. CHARLES SMITH: Yes. I -- I met a 6 number, and this is -- this is again, informal. 7 Provincially, I met with Dalton McGinty, who was at that 8 time, I believe the Head of -- of -- Leader of the 9 opposition, I believe he would have been then. 10 And we -- and we talked about some of 11 these issues. And I had travelled to Ottawa. 12 MS. LINDA ROTHSTEIN: Just stopping 13 there. Which issues, can we be precise about that, 14 please, Dr. Smith? 15 DR. CHARLES SMITH: I'm -- I'm sorry. 16 This is -- is really more of the -- the pediatric death 17 investigations, and some sides that were -- that were not 18 necessarily criminal. There were some other advantages 19 that were coming down the line that, in fact, were things 20 that could help us improve the diagnostic acumen in cases 21 that were not necessarily criminal, but, in fact, were 22 medical causes that were of importance to families. 23 And later, we recognized it could save 24 money for the government and how the government did 25 things, so those were the kind of --

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1 MS. LINDA ROTHSTEIN: But you -- 2 DR. CHARLES SMITH: -- discussions. 3 MS. LINDA ROTHSTEIN: You refer to 4 legislative changes -- 5 DR. CHARLES SMITH: Mm-hm. 6 MS. LINDA ROTHSTEIN: -- Dr. Smith -- 7 DR. CHARLES SMITH: Yeah. 8 MS. LINDA ROTHSTEIN: -- in 1998, so help 9 us with that, if you can, please. 10 DR. CHARLES SMITH: Yeah, this is -- this 11 was -- some of this that I talked about were, I know when 12 I was in Ottawa, we're trying to get, what I mentioned 13 earlier, the concept of -- of mutual disclosure and -- 14 and possibly sections of the Criminal Code to be -- to be 15 done the way that infanticide was done, so that was -- 16 MS. LINDA ROTHSTEIN: What about 17 infanticide in the Criminal Code? 18 DR. CHARLES SMITH: Oh. Oh, infanticide 19 in the Criminal Code, as I understand, had been -- had 20 been brought in, and -- and last updated, maybe in the 21 1950s to recognize the situation that was not the same as 22 other homicide situations. 23 And so what I -- what I was -- was hoping 24 for was that there was some way of, just as infanticide, 25 seemed to me to be an appropriate response to a problem

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1 that was not -- not a traditional homicide, so also may 2 it be possible to -- to author legislation which would 3 reflect the science or the emerging science that related 4 to child abuse and neglect. 5 MS. LINDA ROTHSTEIN: Do I hear you to be 6 saying you were not seeking changes to the infanticide 7 provisions of the Criminal Code? 8 DR. CHARLES SMITH: No, there -- there 9 were parts of those definitions which I found a little 10 confusing, but I -- I thought, for instance, that -- that 11 it would be good to supplement that with a specific 12 recognition, not of infanticide but neonaticide, and 13 essentially remove that from such a criminal context; the 14 killing of a newborn as it were as the infanticide 15 legislation gave them much -- a much wider timeframe. 16 And so I was hoping -- and -- and please 17 understand, this is -- this is someone who is trying to 18 be helpful, but -- but admittedly -- and now admittedly 19 very ignorant of the process, but an infanticide, for 20 instance, I thought that it was my feeling that a better 21 -- it would be good to -- to recognize neonaticide -- the 22 intentional killing of the newborn baby by -- by a mother 23 -- and -- and almost as it were, remove it from the 24 Criminal Code, to -- to recognize this is different than 25 -- than the broader definition of infanticide.

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1 MS. LINDA ROTHSTEIN: Sorry, so what did 2 you want to put in place of infanticide? 3 DR. CHARLES SMITH: Well, no, to -- to 4 add in neonaticide. Infanticide, as I understand from 5 the last revision, maybe in the 1950s, was a broad age 6 range, and -- and I felt -- and I felt concerned that -- 7 that the specific features of neonaticide needed to be 8 taken out of that to -- to recognize that that was 9 something that was different, and -- and in my personal 10 opinion, represented something that was less severe than 11 neonaticide, if I can share -- share my own opinion. 12 But please unders -- I am a little 13 embarrassed. 14 MS. LINDA ROTHSTEIN: Which was more 15 severe than which? 16 COMMISSIONER STEPHEN GOUDGE: Yes. 17 MS. LINDA ROTHSTEIN: I'm lost, Dr. 18 Smith. 19 DR. CHARLES SMITH: I -- I would have 20 regarded infanticide as more severe than neonaticide. 21 COMMISSIONER STEPHEN GOUDGE: A more 22 serious crime. 23 DR. CHARLES SMITH: That's right, yeah. 24 MS. LINDA ROTHSTEIN: Okay. 25 DR. CHARLES SMITH: But -- but I'm very

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1 embarrassed by this. Please understand that I -- that I 2 thought I was trying to affect a change that would help. 3 But -- but I'm -- I now recognize how profoundly ignorant 4 I was. 5 MS. LINDA ROTHSTEIN: And again, who 6 beside yourself was involved in these activities; that is 7 to say the meetings with politicians, federally and 8 provincially. 9 Are you suggesting to us you went alone? 10 DR. CHARLES SMITH: Well, in -- in these 11 I did, yes. I had discussed this with the Office of the 12 Chief Coroner, and I remember being very uncomfortable 13 when I was first -- first asked for a meeting. 14 And -- and I spoke to Dr. Young about that 15 who indicated that it would be good if I went along to 16 that meeting, and -- and so I believed that I did so with 17 the knowledge and the recognition by the Office of the 18 Chief Coroner that -- that what I was doing was something 19 which they sanctioned. 20 MS. LINDA ROTHSTEIN: Okay. So you're 21 saying that in these legislative change or law reform 22 efforts, you went and conducted those efforts in the -- 23 with the knowledge of the Office of the Chief Coroner? 24 DR. CHARLES SMITH: I believe I did, yes. 25 I certainly remember discussing those kind of meetings

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1 with, you know, with Dr. Cairns and -- and -- 2 MS. LINDA ROTHSTEIN: Dr. Young as well? 3 DR. CHARLES SMITH: -- Dr. Young. Yeah. 4 I mean, but it -- they weren't lengthy discussions. They 5 were just part of the -- phone up the Office of the Chief 6 Coroner and say, I have a bit of a problem or a bit of an 7 issue, give me some guidance here; Here's the situation, 8 here's what I think, what do you think? What should I 9 say, what should I do? 10 COMMISSIONER STEPHEN GOUDGE: I 11 understand, Dr. Smith, the thought about -- 12 DR. CHARLES SMITH: Mm hm. 13 COMMISSIONER STEPHEN GOUDGE: -- carving 14 out neonaticide in your terms from infanticide and 15 something you said earlier, I got the idea and I'm not 16 sure I'm right, that you also wanted to create a special 17 crime for child abuse that took in older children than 18 infanticide? 19 Was I right about that? 20 DR. CHARLES SMITH: Yes. And -- and that 21 I don't think I could be more specific because I don't 22 understand all of the aspects of homicide. But -- but I 23 felt that some of those aspects of homicide might be 24 difficult to interpret in terms of child abuse or 25 neglect.

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1 COMMISSIONER STEPHEN GOUDGE: Like what? 2 I mean, what was it that, from your perspective, made 3 this something worth considering? That is -- 4 DR. CHARLES SMITH: The concept of 5 neglect is -- is one which -- which I struggled with and 6 the police at times would say, Well, we chose failure to 7 provide the necessities because this didn't fit it or 8 well, we're going in with second degree murder or first 9 degree murder because in the end we want to get such and 10 such and we know that we can't get it if we -- if we go 11 in with a manslaughter charge or failure to provide 12 necessities. 13 And my reaction was -- 14 COMMISSIONER STEPHEN GOUDGE: We need 15 something in between. 16 DR. CHARLES SMITH: -- why we can't have 17 something that makes it logical or easy or reasonable for 18 someone to say, This fits children though it may not fit 19 adults. I -- I -- 20 COMMISSIONER STEPHEN GOUDGE: I sort of 21 get the sense -- 22 DR. CHARLES SMITH: Yeah. 23 COMMISSIONER STEPHEN GOUDGE: -- that -- 24 that it's somewhere in between failing to provide the 25 necessaries of life on the one hand and murder on the

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1 other where it's child neglect causing death. 2 DR. CHARLES SMITH: That sort of thing, 3 yes. And -- and I wasn't specific because -- because I - 4 - I -- I simply understood what I saw to be difficulties 5 or frustrations and I didn't have an answer, but -- but I 6 thought that it might be possible to -- to come up with 7 an answer. 8 MS. LINDA ROTHSTEIN: Okay. Just before 9 we end today, Dr. Smith, if you can just help us 10 understand how, if your ignorance of the Judicial System 11 was as great as you say and your lack of familiarity with 12 these provisions was at the level you maintain, how it 13 was that you alone thought you would take on this 14 advocacy role? 15 DR. CHARLES SMITH: Well, I -- I 16 certainly wasn't the only person who felt that way. I 17 know on one (1) occasion, Dr. Cairns had a member of a -- 18 a person who was involved in the review of the Criminal 19 Code in the Justice Department in Ottawa come down and 20 meet with the Paediatric Death Review Committee to 21 discuss this. 22 So within that context, I believe that 23 what I was doing was consistent with -- with what the 24 Office of the Chief Coroner was doing and that was really 25 my severe of -- of activity or my -- my reference

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1 framework for this activity. 2 MS. LINDA ROTHSTEIN: But is it also your 3 evidence, sir, that you, yourself initiated meetings with 4 politicians both federal and provincial? 5 DR. CHARLES SMITH: I -- I didn't 6 initiate them, I responded to them. The -- at their 7 request I met with politicians. 8 MS. LINDA ROTHSTEIN: And how did they 9 come to request you for assistance? Can you assist us 10 with that please? 11 DR. CHARLES SMITH: I don't know. Maybe 12 they read about -- they read my name in the newspaper, 13 that sort of thing, and so I would simply get a phone 14 call. 15 MS. LINDA ROTHSTEIN: Okay. Mr. 16 Commissioner, that completes my questions for this 17 afternoon. Thank you very much, Dr. Smith. We'll see 18 you tomorrow morning. 19 DR. CHARLES SMITH: You're welcome. 20 21 (WITNESS RETIRES) 22 23 COMMISSIONER STEPHEN GOUDGE: Okay. We 24 will rise then until 9:30 tomorrow morning. 25

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1 --- Upon adjourning at 4:29 p.m. 2 3 4 5 6 Certified Correct 7 8 9 ______________ 10 Rolanda Lokey, Ms. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25