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 29th, 2008 25

2
  1                        Appearances
  2  Linda Rothstein           )     Commission Counsel
  3  Mark Sandler              )
  4  Robert Centa         (np) )
  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            )     Hospital for Sick Children
 23  Barbara Walker-Renshaw(np) )
 24  Kate Crawford             )
 25

3
  1                   APPEARANCES (CONT'D)
  2  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
  3                                   Association
  4  
  5  Mara Greene          (np) )     Criminal Lawyers'
  6  Breese Davies        (np)  )    Association
  7  Joseph Di Luca       (np) )
  8  Jeffery Manishen           )
  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          )
 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             )     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     (np)   )     Ministry of the Attorney
  6  Heather Mackay            )     General for Ontario
  7  Erin Rizok          (np)   )
  8  Kim Twohig                 )
  9  Chantelle Blom     (np)    )
 10  
 11  Natasha Egan       (np)   )     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 Randall Smith, Resumed 4 5 Continued Cross-Examination by Ms. Linda Rothstein 6 6 7 8 Certificate of transcript 247 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:31 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. Ms. Rothstein...? 7 8 CHARLES RANDALL SMITH, Resumed 9 10 CONTINUED CROSS-EXAMINATION BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: Good morning, 12 Commissioner. Good morning, Dr. Smith. 13 DR. CHARLES SMITH: Good morning. 14 MS. LINDA ROTHSTEIN: Dr. Smith, I want 15 to begin this morning by asking you some questions about 16 what in your view are the reasonable expectations of a 17 pathologist engaged in forensic pathology. 18 You may understand, sir, that we've 19 already heard a lot of evidence that touches on that 20 issue -- 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: -- and that the 23 Commissioner will eventually have to write about that. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: And the question is

1 at its most basic: What is the justice system and its 2 stakeholders entitled to reasonably expect from those who 3 provide forensic pathology services? You understand 4 that's the question I'm getting at? 5 DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: And I take it, sir, 7 you do understand that's a very important question that 8 this Inquiry must attempt to answer. 9 DR. CHARLES SMITH: Yes. 10 MS. LINDA ROTHSTEIN: And I suppose, Dr. 11 Smith, depending on the particular issue, the answer one 12 might give today is different from the one (1) that you 13 might have given ten (10) years ago, or fifteen (15) 14 years ago. 15 Is that fair? 16 DR. CHARLES SMITH: I expect that, yes. 17 MS. LINDA ROTHSTEIN: All right. So as 18 we go through it, I'm going to ask you what your view is 19 today, and then to the extent you have to assist me with 20 a view that you might have had in 1992 when you became 21 the Director, you can tell me that. 22 And I understand that your view may well 23 have changed; indeed the views of others may well have 24 changed as well. 25 DR. CHARLES SMITH: Thank you, yes.

1 MS. LINDA ROTHSTEIN: Okay. Lets start 2 with just the performance of the forensic autopsy, and in 3 your case, the pediatric forensic autopsy. 4 In 2007, is it reasonable to expect that a 5 pathologist conducting a pediatric forensic autopsy would 6 attempt to address all of the evidential issues that may 7 be raised by the history of the case? 8 DR. CHARLES SMITH: That would be 9 reasonable, yes. 10 MS. LINDA ROTHSTEIN: And -- 11 DR. CHARLES SMITH: As -- as they could 12 be addressed. 13 MS. LINDA ROTHSTEIN: As they can be 14 addressed by pathology? 15 DR. CHARLES SMITH: Yes. 16 MS. LINDA ROTHSTEIN: Because they may 17 not be something that pathology can answer; is that what 18 I hear you to say? 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: Okay. And 21 therefore it is very important, I take it, to take as 22 thorough a history of the case as one can. That's a 23 reasonable expectation? 24 25 (BRIEF PAUSE)

1 DR. CHARLES SMITH: I -- I'm slow to 2 respond, because I'm -- I'm struggling with the issue as 3 to the responsibility for the thoroughness, or for taking 4 the history. 5 MS. LINDA ROTHSTEIN: Mm-hm. You're 6 concerned that my question implies that the thoroughness 7 of the history taking is solely the responsibility of the 8 pathologist, and I'm not acknowledging -- 9 DR. CHARLES SMITH: Mm-hm. 10 MS. LINDA ROTHSTEIN: -- in my question 11 that those who provide the information to the pathologist 12 must also be informed of the obligation to be as thorough 13 as possible. 14 Is that your concern, Dr. Smith? 15 DR. CHARLES SMITH: I -- I believe that's 16 a -- a reasonable way of putting that. 17 MS. LINDA ROTHSTEIN: Okay. 18 DR. CHARLES SMITH: I'm also concerned 19 that the -- the thoroughness of -- if -- if the 20 pathologist is expected to be thorough in obtaining a 21 history, then it suggests the pathologist has to be -- 22 has to be -- you know, has to be active in terms of 23 interviewing, and obtaining records. And -- and my 24 concern there is that -- is that that indicates an 25 activity that I believe is the responsibility of others,

1 especially the coroner. 2 MS. LINDA ROTHSTEIN: Right. So in your 3 view, even today, it's the responsibility of the coroner 4 to furnish most of the relevant history to the 5 pathologist? 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: But do you not 8 acknowledge, Dr. Smith, that it's equally the 9 responsibility of the pathologist to ask the coroner for 10 all relevant information? 11 DR. CHARLES SMITH: Yes. The pathologist 12 wouldn't know what the relevant information is, but I -- 13 but I believe that the -- that where there are gaps, it's 14 reasonable for the pathologist to say, It would be a 15 value to have information about this, or that, or it 16 could be of value. 17 MS. LINDA ROTHSTEIN: So where -- where 18 the difficulty is, it's all in the details, and what's 19 relevant is entirely dependent on the case. 20 Are we agreed? 21 DR. CHARLES SMITH: I think -- I think 22 that's reasonable, yes. 23 MS. LINDA ROTHSTEIN: Do you agree with 24 me, sir, that it's important to undertake a full external 25 examination?

1 DR. CHARLES SMITH: Yes. 2 MS. LINDA ROTHSTEIN: And an internal 3 examination of all of the organs, tissues, and structures 4 that are relevant to any question that may be raised by 5 this death? 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: And it's important 8 to take adequate samples, whether it's blood for 9 toxicology, or control samples for DNA, it's important to 10 take all adequate and relevant samples? 11 DR. CHARLES SMITH: Yes. That would be 12 good practice. 13 MS. LINDA ROTHSTEIN: Again, it's case 14 specific as to what's required. 15 DR. CHARLES SMITH: Yes. 16 MS. LINDA ROTHSTEIN: Although there's 17 some standards, toxicology being one (1), in this day and 18 age? 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: And that was true 21 when you were practising in 1992 as well? 22 DR. CHARLES SMITH: The -- I'm not sure 23 when the mandate for toxicology came in -- it was, I 24 believe, in the '90s -- though, we at the hospital had 25 been doing it for some period of time for a different

1 reason. 2 MS. LINDA ROTHSTEIN: Right. But you 3 certainly knew in 1992 and were intending to collect all 4 relevant and adequate samples, were -- 5 DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: -- you not? 7 DR. CHARLES SMITH: Yes. 8 MS. LINDA ROTHSTEIN: And you were 9 ensuring that all necessary x-rays were taken? 10 DR. CHARLES SMITH: Yes. Yeah. 11 MS. LINDA ROTHSTEIN: Indeed, if I 12 understand it, Dr. Smith, that was one (1) of your 13 priorities, was to ensure that full skeletal x-rays were 14 taken of these young infants, when that had not been the 15 practice prior to your assumption of the role as Director 16 of the unit. 17 Is that fair? 18 DR. CHARLES SMITH: The -- I believe that 19 the memorandum for taking x-rays antedated my assumption 20 of the role of Director. I believe that baby grams at 21 least, if not later skeletal x -- skeletal survey -- I 22 think that came along in the 1980s, so I believe that 23 that antedated the -- the time I began there. 24 MS. LINDA ROTHSTEIN: Am I at least right 25 in recalling that you were one (1) of the, what shall I

1 say, proponents of that practice -- 2 DR. CHARLES SMITH: Yes. 3 MS. LINDA ROTHSTEIN: -- in the early 4 stages? 5 DR. CHARLES SMITH: Yes, that's correct. 6 MS. LINDA ROTHSTEIN: It's -- it was 7 important in 1992, and you knew it, to perform adequate 8 dissections in order to take relevant tissues samples. 9 DR. CHARLES SMITH: That's correct. 10 MS. LINDA ROTHSTEIN: And it was 11 important in 1992, and you knew it, to retain tissues and 12 organs that required further examination. 13 DR. CHARLES SMITH: That's correct. 14 MS. LINDA ROTHSTEIN: And would it be 15 fair then to conclude, Dr. Smith, that those were all 16 reasonable expectations of a pathologist conducting a 17 forensic examination throughout your career? 18 DR. CHARLES SMITH: Yes. Yes, I think 19 that's -- I think that's a -- a best practice, if I might 20 use that expression. Yes. 21 MS. LINDA ROTHSTEIN: But that was 22 certainly the practice that you were endeavouring to 23 meet -- 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: -- throughout your

1 career? 2 DR. CHARLES SMITH: Yes. 3 MS. LINDA ROTHSTEIN: And where there are 4 findings of apparent injury that can be demonstrated 5 visually, it was the practice, when you were engaged in 6 forensic pathology, to ensure that photographs were taken 7 so that others could see those injuries for themselves at 8 a later date? 9 DR. CHARLES SMITH: It was -- yes, it was 10 practice to -- to record any significant findings. In 11 criminally suspicious cases there was often a police 12 photographer. 13 MS. LINDA ROTHSTEIN: Mm-hm. 14 DR. CHARLES SMITH: We almost always had, 15 if not always had a photographic record from Sick Kids 16 that would serve us and not infrequently was better 17 quality than the police records. But there was an 18 attempt to -- to document what were believed to be 19 significant or potentially significant injuries -- or 20 findings, I should so. 21 MS. LINDA ROTHSTEIN: And one (1) of your 22 responsibilities, sir, was to direct the police as to 23 which photographs to take where they needed direction. 24 Is that fair? 25 DR. CHARLES SMITH: Yes. Yeah.

1 MS. LINDA ROTHSTEIN: In other words, 2 even in 1992 you were taking some steps to make the 3 autopsy what Mr. -- Dr. Pollanen has described as 4 independently reviewable by others subsequently, were you 5 not? 6 DR. CHARLES SMITH: We were documenting 7 it. The concept of independent reviewability was one 8 that I was not familiar with at -- at that time, so -- so 9 I can't -- I can't suggest that the documentation was for 10 that purpose. I -- I came to understand that concept 11 only -- only at -- in more recent times here. 12 MS. LINDA ROTHSTEIN: When you opened 13 your hands the way you did, I thought you were suggesting 14 that you came to understand the concept of independent 15 reviewability as a result of the work of this Inquiry, or 16 perhaps the Chief Coroner's review. 17 Did I read into your body language 18 correctly, sir? 19 DR. CHARLES SMITH: I -- I'm -- I'm 20 sorry, I shouldn't -- I shouldn't communicate that way. 21 The -- the term "independent reviewability" is one (1) 22 which -- which is an expression which I've -- which I've 23 learned from Dr. Pollanen's writing, and -- and so that 24 concept is -- is not one (1) which I -- which I would 25 have stated in those terms years ago.

1 Though years ago when reviewing cases that 2 came into things like the Paediatric Death Review 3 Committee, we certainly acknowledged that there were 4 difficulties at times with the supporting documentation, 5 or the -- the ability to review the critical issues in a 6 case. 7 MS. LINDA ROTHSTEIN: All right. 8 DR. CHARLES SMITH: In some cases. Not 9 all, but some. 10 MS. LINDA ROTHSTEIN: So leaving aside 11 the nomenclature -- 12 DR. CHARLES SMITH: Mm-hm. 13 MS. LINDA ROTHSTEIN: -- am I correct, 14 Dr. Smith, that there were occasions when sitting in your 15 chair as a member of the Paediatric Death Review 16 Committee you saw post-mortem reports that you judged 17 insufficient because they did not allow you to put 18 yourself in the place of the pathologist who had done the 19 autopsy? 20 21 (BRIEF PAUSE) 22 23 DR. CHARLES SMITH: Your language is a 24 little bit stronger than I would -- I would use. I think 25 I've always recognised that the first observer is -- is

1 the best observer and -- and it's not possible for any 2 other observers to see and appreciate everything that the 3 first observer did because it's not possible to have a 4 perfect record. 5 So I -- I don't think I could say that -- 6 that I ever expected there to be the ability to have a 7 second look or review that could be as good as the first 8 review. Hence, I -- I don't think I ever expected the 9 documentation to be as thorough as what the first 10 observer was able to -- to see and -- and to do. 11 MS. LINDA ROTHSTEIN: But you did 12 understand that sometimes the deficiencies in the first 13 autopsy were deficiencies becau -- were -- were a failure 14 to either to either collect relevant information or 15 record relevant information that made the consultation 16 process, the second opinion process, virtually 17 impossible. 18 DR. CHARLES SMITH: Yes, that -- that 19 occurred, yes. 20 MS. LINDA ROTHSTEIN: That happened to 21 you -- 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: -- when you were 24 asked to do second opinions, from time to time. 25 DR. CHARLES SMITH: Yes.

1 MS. LINDA ROTHSTEIN: So you were alert 2 to the general danger of recording and collecting 3 insufficient information at the autopsy. 4 DR. CHARLES SMITH: That's correct. 5 MS. LINDA ROTHSTEIN: You were alert to 6 the responsibility that you had to maintain appropriate 7 care and control over all of the samples that were 8 removed from the deceased, whether tissue, whether -- 9 created into tissue blocks, physical evidence? Whatever 10 form it took. 11 You were alert to that responsibility, 12 were you not, Dr. Smith? 13 DR. CHARLES SMITH: I understood there 14 was responsibility. I -- I don't think I understood that 15 responsibility then as -- as I would now. 16 MS. LINDA ROTHSTEIN: Or would it be fair 17 to say, sir, you didn't actually take that responsibility 18 seriously enough in retrospect? 19 DR. CHARLES SMITH: Retrospectively I 20 should have -- I should have been more careful about 21 documentation and oversight, yes. 22 MS. LINDA ROTHSTEIN: And collection, and 23 maintenance of physical evidence? 24 DR. CHARLES SMITH: Yes. Yes, I have 25 erred in those ways.

1 MS. LINDA ROTHSTEIN: You knew during 2 your tenure as the Director of the OPFPU that you must 3 consider whether you had the appropriate expertise to 4 perform the autopsy in the circumstances of the case, and 5 if not, to request the attendance of the appropriate 6 expert? 7 You knew that, sir, did you not? 8 DR. CHARLES SMITH: Yes. We had always 9 built into the -- I believe to the original agreement, 10 the possibility that any pathologist could refer a case 11 to the Office of the Chief Coroner if they felt they did 12 not have the expertise or ability to do any given case. 13 MS. LINDA ROTHSTEIN: And you knew that 14 following the autopsy, if there were issues of 15 interpretation, or diagnosis, which you were not 16 qualified, based on your training and experience to 17 provide, that you ought to seek the advice, and 18 consultation of others who had that expertise. 19 You know that, did you not, Dr. Smith? 20 DR. CHARLES SMITH: Yes. It -- it was 21 not uncommon for me to show a slide, or a tissue, to a 22 colleague to assist with my own uncertainties, yes. 23 MS. LINDA ROTHSTEIN: You regularly 24 sought the advice, and opinions of neuropathologists in 25 some of these cases, did you not?

1 DR. CHARLES SMITH: In virtually every 2 autopsy, yes. 3 MS. LINDA ROTHSTEIN: So you recognized, 4 did you not, Dr. Smith, the danger of reaching outside 5 the limits of your own expertise in providing opinions in 6 these cases? 7 DR. CHARLES SMITH: I -- I recognized 8 that it was -- that it was risky, or -- I don't know what 9 the word "dangerous" necessarily means, but it certainly 10 created the -- the potential for an error in 11 interpretation. 12 MS. LINDA ROTHSTEIN: Fair enough. Note 13 taking. During your tenure as the Director of the OPFPU, 14 did you have in your mind that your autopsy notes ought 15 to be comprehensive? 16 DR. CHARLES SMITH: My autopsy notes? Or 17 -- or my report -- help, please. 18 MS. LINDA ROTHSTEIN: Well, either. 19 DR. CHARLES SMITH: Yeah. 20 MS. LINDA ROTHSTEIN: Either your notes, 21 or your post-mortem report; that they ought to include 22 every procedure undertaken. 23 24 (BRIEF PAUSE) 25

1 DR. CHARLES SMITH: I'm not sure that I 2 understood the autopsy report should have recorded the 3 procedures. As I viewed it, it -- it's role was to 4 record the observations, but not the procedures, or the 5 techniques. 6 MS. LINDA ROTHSTEIN: Then was it your 7 notes that ought to have recorded the procedures that you 8 undertook, if for no other reason but to refresh your 9 memory when you were asked questions about that? 10 DR. CHARLES SMITH: No. I -- I never had 11 that -- the sense that -- that they should do that, no. 12 My notes were not taken for that purpose. They were 13 taken really for the purpose of -- of recording the 14 observations, not the procedures. 15 MS. LINDA ROTHSTEIN: As a physician was 16 that not something that was virtually axiomatic for all 17 procedures that physicians undertake? 18 Make some note of the relevant procedures 19 you do; wasn't that the norm for all physicians in the 20 '90s? 21 22 (BRIEF PAUSE) 23 24 DR. CHARLES SMITH: I'm not sure that the 25 reporting, and -- and as we pay attention to it here, the

1 reporting in a forensic autopsy was one (1) wherein I -- 2 I had any sense of that. The -- the reporting format 3 that I followed was the one (1) which was mandated by the 4 Coroner's Office, which does not pay attention to 5 procedure apart from the very final statement in the -- 6 in the report, and that's a general statement that is 7 made in every case, which specifically says that the -- 8 the cranial chest and abdominal cavities have been 9 examined. So that's the -- really the only procedural 10 documentation. 11 MS. LINDA ROTHSTEIN: Dr. Smith, my 12 question wasn't -- 13 DR. CHARLES SMITH: Yeah. 14 MS. LINDA ROTHSTEIN: -- directed to you 15 post-mortem report -- 16 DR. CHARLES SMITH: Oh, I see that. 17 MS. LINDA ROTHSTEIN: -- because I take 18 your point -- 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: -- and I heard your 21 evidence to Ms. Langford, that that was abbreviated for 22 the reasons you've given. 23 DR. CHARLES SMITH: Mm-hm. 24 MS. LINDA ROTHSTEIN: I'm talking about 25 your contemporaneous notes of the autopsy, which I

1 understand from your evidence you either did in longhand 2 from time to time or by dictation -- 3 DR. CHARLES SMITH: Mm-hm. 4 MS. LINDA ROTHSTEIN: -- that's what I'm 5 talking about, sir. 6 DR. CHARLES SMITH: Mm-hm. 7 MS. LINDA ROTHSTEIN: And I'm suggesting 8 to you that you knew during your tenure that it was 9 important to make those as complete as possible, and at a 10 minimum, that they ought to record all procedures that 11 you undertook. 12 DR. CHARLES SMITH: No, I did not 13 understand that. My note taking was for the purpose of 14 completing the form. 15 MS. LINDA ROTHSTEIN: Certainly a 16 reasonable expectation today? 17 DR. CHARLES SMITH: Today, yes. I -- I 18 think that -- that if there is that expectation, then it 19 -- then that's part of an education process, because I 20 certainly wasn't aware of it, nor had I been taught that. 21 MS. LINDA ROTHSTEIN: Now, with respect 22 to the autopsy report, what I hear you to have told the 23 Commissioner, Dr. Smith, is that what many would suggest 24 is required today would not have been the norm in 25 Ontario, at least when you were practising.

1 DR. CHARLES SMITH: That's correct. 2 MS. LINDA ROTHSTEIN: Have I understood 3 your evidence? 4 DR. CHARLES SMITH: That's correct. 5 MS. LINDA ROTHSTEIN: And you don't 6 quarrel with the evidence that suggests that post-mortem 7 reports in 2008 should record not only their findings and 8 conclusions, but also the reasoning process and 9 consideration of alternative explanations? 10 you don't quarrel with that as the norm in 11 2008? 12 DR. CHARLES SMITH: No. No, I would 13 support that. 14 MS. LINDA ROTHSTEIN: You simply say that 15 it would be unfair to suggest that in the '90's that was 16 the practice pattern, if I've got your language 17 correctly, to which you were exposed. 18 DR. CHARLES SMITH: That's correct. 19 MS. LINDA ROTHSTEIN: Do we agree, 20 nevertheless, Dr. Smith, that throughout your tenure as 21 the Director of the OPFPU you did know that the justice 22 system was entitled to expect that whatever form your 23 post-mortem report took, it had to be prepared and 24 delivered in a timely fashion in a criminally suspicious 25 case?

1 DR. CHARLES SMITH: I -- I would have 2 acknowledged that then, yes, and every pathology report 3 should be delivered in a timely fashion. 4 MS. LINDA ROTHSTEIN: Let's turn to your 5 role as an expert witness and your attendance in Court 6 and let's consider what, during your tenure as the 7 Director of the OPFPU, was reasonable to expect of you. 8 Was it reasonable to expect, sir, that you 9 would ensure you were well prepared prior to your Court 10 attendance? 11 DR. CHARLES SMITH: That's a reasonable 12 expectation. Not infrequently, it did not occur. I 13 acknowledge that sometimes that was my mistake, sometimes 14 that was the situation in which I found myself -- 15 MS. LINDA ROTHSTEIN: But you -- 16 DR. CHARLES SMITH: -- but -- 17 MS. LINDA ROTHSTEIN: Sorry. 18 DR. CHARLES SMITH: -- but I recognise 19 that -- that that would be the best practice. 20 MS. LINDA ROTHSTEIN: And you recognised 21 that then? 22 DR. CHARLES SMITH: I think my 23 understanding of that then is different than it would be 24 now. 25 MS. LINDA ROTHSTEIN: In what way?

1 DR. CHARLES SMITH: At that time my 2 practice was that of -- of reading my report, trying to 3 bing -- bring to mind issues that may be relevant, and 4 then essentially showing up at Court when I was expected 5 to. 6 Now I would recognise that it -- it would 7 be critically important for discussion to go on between 8 the pathologist and whoever in the Justice System is the 9 interface or the connection; be it a Crown attorney or an 10 assistant or whatever. 11 So I think that my concept of preparation 12 then is much different than it would have been now. 13 MS. LINDA ROTHSTEIN: All right. I take 14 that point, Dr. Smith. 15 But do you agree with me nevertheless, 16 that during your tenure as the Director of the OPFPU, you 17 knew that it was a minimum expectation that you would 18 review all your file notes, review your entire file, and 19 come to Court conversant with the opinions that you had 20 stated in your post-mortem report? 21 DR. CHARLES SMITH: No, I -- I think your 22 statement is wrong. I did not appreciate that there 23 should be a -- a complete review of my file. I -- I -- I 24 reviewed my report and thought through what the issues 25 may be, but I don't think I ever appreciated that there

1 should be as comprehensive a review as you have 2 suggested. 3 MS. LINDA ROTHSTEIN: Well -- 4 DR. CHARLES SMITH: I would -- 5 MS. LINDA ROTHSTEIN: Sorry. 6 DR. CHARLES SMITH: -- acknowledge that 7 and I recognize from what you're suggesting that that 8 would be a best practice, but that was certainly not a 9 practice that I did nor was I ever aware of. 10 MS. LINDA ROTHSTEIN: Were -- you were 11 aware of the minimum expectation that you would bring all 12 relevant documentation to court? 13 DR. CHARLES SMITH: No. No, I wasn't. 14 MS. LINDA ROTHSTEIN: Were you aware of 15 the minimum expectation that you would not stray outside 16 the limits of your expertise if you could possibly help 17 it? 18 DR. CHARLES SMITH: I think at some point 19 in the '90s I -- I would have said, Yes, I understand 20 that. I recognize, in reading my testimony, that I've 21 made mistakes in that. In various ways, I have erred in 22 -- in that regard. 23 But some time in the 1990s, I -- I would 24 have said, at least, based on book knowledge, that -- or 25 something that I read, that that was an expectation or a

1 goal perhaps. 2 MS. LINDA ROTHSTEIN: Were you aware of 3 the minimum expectation during your tenure as the 4 Director of the OPFPU that you ought not to exaggerate, 5 speculate or obfuscate if you could possibly avoid it? 6 DR. CHARLES SMITH: The first and third I 7 would agree with. 8 I think the issue of speculation is one 9 (1) which -- which I -- I don't think I can agree with. 10 I don't think it ever crossed my mind that I should not 11 speculate if I was asked to give possibilities. 12 MS. LINDA ROTHSTEIN: So, if you were 13 invited by one (1) of the counsel to, in effect, 14 speculate, you felt free to do so. 15 Is that what you're telling us, Dr. Smith? 16 DR. CHARLES SMITH: Yes. Yes. 17 MS. LINDA ROTHSTEIN: Were you aware of 18 the minimum expectation that you ought not to misstate or 19 mislead? 20 DR. CHARLES SMITH: Yes. 21 MS. LINDA ROTHSTEIN: Were you aware of 22 the minimum expectation that you ought not to emote or 23 inflame? 24 DR. CHARLES SMITH: I can't say I was 25 aware of it, but I don't think that I would suggest that

1 -- that I regarded that as an acceptable behaviour, but I 2 don't know that -- that I've ever, at that point in time, 3 was ever told those words specifically. 4 MS. LINDA ROTHSTEIN: Were you aware of 5 the expectation that a -- that where a lawyer has 6 misunderstood or misstated evidence that you ought to 7 make some attempt to ensure that the Court was made aware 8 of that misunderstanding or misstatement? 9 DR. CHARLES SMITH: I'm not sure that I 10 completely understand your question. 11 MS. LINDA ROTHSTEIN: That you ought to 12 try and correct the record where you saw that there was a 13 misstatement arising from a series of questions and 14 answers because those that didn't have your medical 15 knowledge were confused? 16 17 (BRIEF PAUSE) 18 19 DR. CHARLES SMITH: I -- I'm not sure 20 that I -- I would necessarily have understood that -- 21 that role. I might have responded to it in Court if -- 22 if I thought it was helpful, but I can't -- I can't think 23 of specifics, and I -- and I don't think I ever 24 understood -- understood that -- that role. 25 MS. LINDA ROTHSTEIN: Dr. Smith, would

1 you please take the first volume with the white spine; 2 volume I? 3 DR. CHARLES SMITH: Yes. 4 MS. LINDA ROTHSTEIN: And would you 5 please turn to Tab 11 of that volume. It's PFP056677. 6 DR. CHARLES SMITH: I have it, yes. 7 MS. LINDA ROTHSTEIN: I'm just going to 8 wait for the Registrar to turn it up. 9 Dr. Smith, this is a letter that you wrote 10 to Dr. Cairns on June the 10th of 1992, and just to 11 orient ourselves in the chronology, am I correct in 12 recalling, Dr. Smith, that you became appointed as the 13 Director of the OPFPU in May of that same year? 14 DR. CHARLES SMITH: I believe that's 15 correct. 16 MS. LINDA ROTHSTEIN: 17 "Dear Jim: As I promised you, here is 18 a copy of a speech I gave to the 19 Department of Anaesthesia on how to be 20 a better expert witness. I am re- 21 writing it as I was asked to give it to 22 the surgeons later this month." 23 Stopping there for a moment, Dr. Smith. 24 I've looked at your curriculum vitae, and number 40 at 25 page 132 of your written evidence, records a guest

1 lecture for Anaesthesia Research Day which you gave to 2 the University of Toronto. 3 And it would appear to me, from looking at 4 your curriculum vitae, to correspond with the attached 5 document entitled, "See You In Court; The Invitation You 6 Can't Refuse." 7 DR. CHARLES SMITH: That's correct. 8 MS. LINDA ROTHSTEIN: So am I correct in 9 understanding that you were sending Dr. Cairns a copy of 10 the speech which you gave to some anaesthia col -- 11 anaesthesia colleagues in May of 1992? 12 DR. CHARLES SMITH: They were 13 anaesthesiology residents, yes. Yeah. 14 MS. LINDA ROTHSTEIN: All right. And 15 that was the same month in which you became the Director 16 of the OPFPU? 17 DR. CHARLES SMITH: Yes, that -- I think 18 that's correct. 19 MS. LINDA ROTHSTEIN: You go on to say: 20 "Perhaps a brief note of explanation is 21 in order. The text that is shown in 22 bold italics was made into slides so 23 that the audience could see the 24 important points. Speeches are pretty 25 boring to read. You might want to just

1 scan the bold faced text." 2 And you've copied Dr. Young on that. 3 DR. CHARLES SMITH: That's correct. 4 MS. LINDA ROTHSTEIN: You thought it was 5 important to let Dr. Cairns and Dr. Young know about some 6 of the activities that were related to your role in doing 7 coroner's autopsies, and that's why you sent this along? 8 DR. CHARLES SMITH: I -- I don't think 9 that's -- that's quite the reason. 10 Dr. Cairns had asked me for it because he 11 had -- or I -- I can't say why -- why he had, but I had 12 mentioned the -- the talk that I gave to the residents, I 13 believe, to Dr. Huxter, just because it was common for me 14 in dealing with Dr. Huxter, the Regional Coroner for 15 Toronto, to -- to simply share with him some of the -- 16 the things that I was -- was doing that may be of 17 interest to a Regional Coroner. 18 MS. LINDA ROTHSTEIN: You were proud of 19 it, Dr. Smith, were you not? 20 DR. CHARLES SMITH: Of this -- 21 MS. LINDA ROTHSTEIN: Of this lecture. 22 DR. CHARLES SMITH: Of this lecture? I 23 was -- I was proud of the fact that I'd been asked to 24 give it, because it was an unusual situation. I think -- 25 I think it was a good lecture.

1 MS. LINDA ROTHSTEIN: Did you give it 2 again at the end of the month to the surgeons? 3 DR. CHARLES SMITH: I gave it, at one (1) 4 point, to the pediatric surgery residents. Yes, the -- 5 the frame of reference here is that in a -- in the 6 Anaesthesia Research Day, which is when residents 7 typically present their research projects for the year, 8 and many departments have those, that -- that some 9 departments would have a special lecture -- a guest 10 lecture or something. 11 And on this occasion, I was asked, by the 12 person organizing that year, if I would give the talk on 13 -- on testifying in Court because that was an issue that 14 was a potential for anaesthesiology residents by virtue 15 of the nature of that discipline. 16 MS. LINDA ROTHSTEIN: You didn't turn it 17 down and say -- 18 DR. CHARLES SMITH: No. 19 MS. LINDA ROTHSTEIN: -- I know nothing 20 about that, did you? 21 DR. CHARLES SMITH: No. No, what I -- 22 what I did was I created a lecture and then -- and then 23 tried to do it in such a way that -- that the techniques 24 or the things that I told them in the lecture would be of 25 relevance for doing their oral examinations.

1 I -- that was what I did for the surgery 2 residents, as -- as well, just to say, Here are things 3 that -- that I've learned about giving evidence in Court. 4 It's -- it may be remote, but some of the techniques will 5 help you on your Royal College oral examinations, and so 6 there was some interest in that. 7 MS. LINDA ROTHSTEIN: So we can see the 8 attached lecture as your record in May of 1992 what you - 9 - as to what you had learned thus far by testifying in 10 Court as an expert witness, Dr. Smith? 11 DR. CHARLES SMITH: Well, I -- I don't 12 think I -- it would be fair to say that it was what I had 13 learned thus far. Virtually all of this was -- was 14 information which I had -- had borrowed from others or 15 gotten in discussion with others, so -- so some of this 16 was my own experience, but much of it was -- was based 17 upon what I was -- was told because I had no experience 18 in those areas. 19 MS. LINDA ROTHSTEIN: So, to the extent 20 that you didn't have firsthand experience -- 21 DR. CHARLES SMITH: Mm-hm. 22 MS. LINDA ROTHSTEIN: -- you took it upon 23 yourself to go out and do the relevant reading and to, at 24 least, learn what others, who had the experience you 25 lacked, said about these issues, is that fair, Dr. Smith?

1 DR. CHARLES SMITH: I -- I read one (1) - 2 - one (1) source on it, which was based on the workshop 3 that I re -- mentioned yesterday on law suits in the US, 4 and then I did make two (2) or three (3) phone calls to 5 seek information from others, yes. 6 MS. LINDA ROTHSTEIN: And what you put 7 together, Dr. Smith, if you look at it, it's a number of 8 pages in length, as many as seventeen (17). 9 DR. CHARLES SMITH: Yes. 10 MS. LINDA ROTHSTEIN: Does it stand up 11 today? 12 DR. CHARLES SMITH: Many of the things I 13 think are correct. I would expect that if a lawyer had 14 read this in 1992, they would have disagreed with some of 15 the things that I said. 16 I think some of the principles, at least, 17 are valid. 18 MS. LINDA ROTHSTEIN: Aren't all the 19 basic principles there, "What It Means To Be An Expert", 20 on page 4: 21 "The most important part of your 22 evidence is the fact that you are a 23 trained expert. You must commi -- 24 communicate in such a way that the jury 25 is convinced of your professional

1 status. They need to know that you are 2 current, credible, competent, capable." 3 DR. CHARLES SMITH: Yes. 4 MS. LINDA ROTHSTEIN: That all stands up 5 today, does it not, Dr. Smith? 6 DR. CHARLES SMITH: I believe so, yes. 7 MS. LINDA ROTHSTEIN: 8 "What It Means To Be An Expert, Fact 9 Versus Opinion": 10 "The trier of fact, the judge or jury, 11 has to base the decision on fact; 12 however, the understanding or 13 interpretation of a fact may be beyond 14 the ability of a layperson if that fact 15 is of a complex, technical, scientific 16 or medical nature. Therefore, the law 17 recognises that a judge or jury can be 18 helped by a person who can interpret 19 facts to them. Thus, your role as an 20 expert witness allows you to make 21 statements of fact and interpretation 22 or opinion. It is a significant 23 responsibility and must not be taken 24 lightly." 25 Do you think anyone would quarrel with

1 that today, Dr. Smith? 2 DR. CHARLES SMITH: I don't think so, no. 3 MS. LINDA ROTHSTEIN: Number 2: 4 "Not necessarily the leading expert. 5 Being an expert does not mean that you 6 have to be the nation's top dog in a 7 certain area of medicine. If you are a 8 GP you could be an expert in general 9 practice. If you are an 10 anaestheologist working in a small city 11 you can be an expert in the practice of 12 anaesthesiology in a community setting. 13 This touches on the issue of practice 14 standards. 15 In Canada, we use the norm of what 16 another practitioner would do in that 17 setting, whereas in the US there is a 18 push for universal standards." 19 That's a fairly sophisticated 20 understanding of the legal environment in which experts 21 were functioning in 1992, is it not, Dr. Smith? 22 DR. CHARLES SMITH: It was -- it was I 23 read and what I was quoting. Yes, I think -- 24 MS. LINDA ROTHSTEIN: And -- and what you 25 learned?

1 DR. CHARLES SMITH: Mm -- 2 MS. LINDA ROTHSTEIN: -- from doing that? 3 DR. CHARLES SMITH: Yeah. Yes. 4 MS. LINDA ROTHSTEIN: Number 3: 5 "Ethics of this position. You must 6 show that you are ethical. It is only 7 ethics that bind what you do to what 8 you say. Don't ever get to the place 9 where you have to say, I'm the expert, 10 trust me; the judge and jury won't." 11 Those words are apt today are they not, 12 sir? 13 DR. CHARLES SMITH: I -- I think they 14 are, yeah. 15 MS. LINDA ROTHSTEIN: "How to be the best 16 expert witness. Be an outstanding 17 teacher. Your role is that of a 18 teacher. The judge wants to learn from 19 you and the jury wants to learn from 20 you. For a moment, think about the 21 things that you remember in the best 22 teacher you ever had. You must be an - 23 - informed, innovative and 24 entertaining, but not funny. The jury 25 wants information. Teach them but don't

1 talk down to them. Remember the legal 2 process treats them like children and 3 they are the fall guys for society. Be 4 nice to them by being the best teacher 5 possible. 6 To be credible, the jury must 7 understand what you are saying. If 8 they cannot understand you, they will 9 question your credibility." 10 Those are all fair comments today, are 11 they not, Dr. Smith? 12 DR. CHARLES SMITH: I believe so. 13 MS. LINDA ROTHSTEIN: On the next page, 14 6: 15 "Before entering court prepare your CV. 16 It is imperative that you have prepared 17 a complete and up-to-date CV. You 18 should have provided it to your lawyer 19 beforehand to ensure that they will 20 bring out the aspects of your work 21 which are of relevance. Be prepared to 22 be asked some embarrassing questions 23 about your CV, especially if there 24 appear to be any gaps in time." 25 That was good advice, was it not, Dr.

1 Smith? 2 DR. CHARLES SMITH: Well, I think it was. 3 That was what I was taught at the workshop that I 4 attended. 5 MS. LINDA ROTHSTEIN: And you took it to 6 heart? 7 DR. CHARLES SMITH: Well, everything that 8 I say in here, though I would suggest to you that I knew 9 about it, it's pretty clear that what I knew and my 10 execution as an expert witness in court, it indicates 11 that I -- I certainly didn't do a good job in many 12 situations as compared to what the -- these notes would 13 indicate. 14 MS. LINDA ROTHSTEIN: Knowing what to do 15 and doing it are sometimes two (2) very different things. 16 DR. CHARLES SMITH: Or -- or being able 17 to do it, yes. Yeah. 18 MS. LINDA ROTHSTEIN: "Do not over- 19 inflate your achievements." 20 Good advice, was it not? 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: "Know your 23 material." 24 DR. CHARLES SMITH: Obviously. 25 MS. LINDA ROTHSTEIN: "Know your stuff

1 cold, but don't have memorized things 2 such that you recite them word for 3 word. If you need support 4 documentation bring it along with you. 5 It is only a wimp that says, I forgot 6 to bring my notes." 7 DR. CHARLES SMITH: Yes. 8 MS. LINDA ROTHSTEIN: My point, Dr. 9 Smith, and I don't want to belabour it with you, is that 10 all the basic advice that one would give to an expert 11 witness today was recorded by you, retrieved by you, 12 known by you in May of 1992, when you became the Director 13 of the OPFPU? 14 DR. CHARLES SMITH: Yes, I -- I see -- I 15 see that, yes. I -- I certainly had identified practices 16 that I understood were to be used or were valid, valuable 17 practices, yes. 18 MS. LINDA ROTHSTEIN: Am I right as well, 19 Dr. Smith, that '92 wasn't the only time that you 20 lectured on this subject. There were other occasions 21 over the years when you gave workshops, or presentations, 22 to groups of physicians about the difficulties of 23 surviving in Court as an expert witness? 24 DR. CHARLES SMITH: I -- I don't have 25 specific recollection of that, but -- but that is

1 possible. 2 MS. LINDA ROTHSTEIN: And that you 3 lectured at the Police College regularly, Bick Police 4 College, in Aylmer, that the subject of being an expert 5 witness was one (1) of the tings that you talked to 6 police officers about, at least by the by? 7 DR. CHARLES SMITH: I -- I don't have 8 specific recollection of -- of speaking on being an 9 expert witness. I don't remember. 10 MS. LINDA ROTHSTEIN: Okay. That you 11 volunteered at the trial advocacy course at the 12 University of Toronto to be a mock expert witness to 13 teach law students how to conduct an examination of 14 expert witnesses? 15 DR. CHARLES SMITH: I did -- I did 16 volunteer to assist them in a -- in a courtroom exercise, 17 but I don't think I was the one teaching them to be an 18 expert witness. I think -- I think I was the subject of 19 a demonstration, and it was the lawyers going through 20 that, that were demonstrating techniques about how to -- 21 how to question an expert, as opposed to how to be an 22 expert. 23 I -- my role, as I understood it was -- 24 was passive in that the purpose of that exercise was a -- 25 a different one than you've suggested.

1 MS. LINDA ROTHSTEIN: It certainly gave 2 you some understanding of what it was like to be subject 3 to examinations and cross-examinations by lawyers who 4 were trying to understand expert evidence. 5 It gave you a look at what that was like 6 from the lawyer's perspective, did it not? 7 8 (BRIEF PAUSE) 9 10 DR. CHARLES SMITH: That's a degree of 11 insight that I -- I don't recall that I had at the time. 12 MS. LINDA ROTHSTEIN: Dr. Smith, during 13 your tenure as the Director of the OPFPU, you did 14 understand that one (1) of your functions as an expert 15 witness, and indeed throughout your conduct of a 16 criminally suspicious post-mortem examination, was to 17 maintain objectivity? 18 You did know that? 19 DR. CHARLES SMITH: Yes. Yes -- yeah, I 20 recognized that that's -- that that's something that 21 should have been done, yes. 22 MS. LINDA ROTHSTEIN: You did know 23 throughout your tenure as the Director of the OPFPU that 24 you were to refrain to the extent humanly possible from 25 becoming an advocate?

1 (BRIEF PAUSE) 2 3 DR. CHARLES SMITH: I believe your words 4 are a little stronger than -- than I would have used 5 there. No one, to the best of my knowledge, ever 6 discussed that issue with me, so the -- the position that 7 I took was not one (1) based on instruction. 8 I would -- I would acknowledge that I felt 9 I should not be an advocate, at least as I understood it 10 by the 1990s, though I'm not sure that my understanding 11 was anywhere near as complete as it should have been. 12 MS. LINDA ROTHSTEIN: You knew throughout 13 your tenure as the Director of the OPFPU that you were 14 obliged to make every reasonable effort to keep up to 15 date with the latest methods in pediatric pathology, and 16 pediatric forensic pathology, and in the scholarship and 17 literature that pertained to your work. 18 DR. CHARLES SMITH: Yes. Yeah. I -- I 19 don't think that's -- that's specific to -- to the 20 pediatric coroners autopsy; that's -- that's part and 21 parcel of the practice of medicine, is to try and -- and 22 be up to date in -- in an area of practice that you've 23 chosen to pursue. 24 MS. LINDA ROTHSTEIN: And you did 25 understand, Dr. Smith, during your tenure as the Director

1 of the OPFPU, that the criminal justice system required 2 various participants, Crown and Crown witnesses, to 3 provide disclosure of information to the defence? 4 You understood that basic point? 5 DR. CHARLES SMITH: I -- I understood 6 disclosure, but I'm not sure that I in -- I certainly 7 didn't understand it from the way that a lawyer would, 8 but I understood that -- that there was some obligation 9 on the part of the Crown to -- to communicate or to 10 reveal -- or to provide information to the defence. 11 MS. LINDA ROTHSTEIN: And that your 12 report, your post-mortem -- post-mortem report was one 13 (1) of the pieces of information that the Crown had to 14 reveal -- 15 DR. CHARLES SMITH: That's correct. 16 MS. LINDA ROTHSTEIN: -- to the defence. 17 DR. CHARLES SMITH: That's correct. 18 MS. LINDA ROTHSTEIN: And you knew 19 throughout your tenure as the Director of the OPFPU that 20 you had an obligation to make all reasonable efforts to 21 ensure the integrity of evidence was not compromised. 22 DR. CHARLES SMITH: Well, I -- I don't 23 think that I would say I knew that, but I think that that 24 was part of the day-to-day operation. 25 MS. LINDA ROTHSTEIN: Dr. Smith, just on

1 the advocacy point -- 2 DR. CHARLES SMITH: Mm-hm. Mm-hm. 3 MS. LINDA ROTHSTEIN: -- if I were to 4 refresh your memory by asking you to look again at Tab 11 5 of Volume I. 6 Have you got that? 7 DR. CHARLES SMITH: I have it. Yes, this 8 is my lecture you're referring to? 9 MS. LINDA ROTHSTEIN: It is. And if you 10 would turn to page 12 of that document, please, it 11 records at number 4 -- 12 DR. CHARLES SMITH: Mm-hm. 13 MS. LINDA ROTHSTEIN: 14 "Don't be an advocate. Don't get into 15 an argument. Don't fence. Watch your 16 tone of voice. It's important when 17 speaking not to use a monotone, but to 18 vary the pitch of your voice, but that 19 does not allow you to use a volume or 20 tone that boarders on the combative or 21 argumentative. You are not being paid 22 to be an advocate. Lawyers think they 23 make the best advocates, and even when 24 we physicians realise that lawyers 25 aren't very good at being an advocate,

1 remember that the Judge is a lawyer. 2 In fact, many opposing lawyers will try 3 to get into an argument, as that is the 4 ways of discrediting your seemingly 5 impartial nature and provides the 6 opportunity for you to make a mistake 7 by letting a remark or a piece of 8 information slip out. Don't get in an 9 argument. 10 The quintessence of a good expert 11 witness -- the quintessence -- is 12 person who provides information in such 13 a way that the jury cannot determine 14 from his or her body language and tone 15 of voice whether he is being paid by 16 the prosecution or the defence." 17 Wise words, were they not, Dr. Smith? 18 DR. CHARLES SMITH: Well, since they were 19 lifted out of a -- of a book, I -- I think they are; a 20 book written by a lawyer. 21 MS. LINDA ROTHSTEIN: And I take it, Dr. 22 Smith, that you lifted them because you believe them to 23 be true. 24 DR. CHARLES SMITH: It -- that was the 25 instruction that I had been given in that workshop, yes.

1 MS. LINDA ROTHSTEIN: And you didn't have 2 reason to doubt the wisdom of those words? 3 DR. CHARLES SMITH: No, I certainly 4 didn't doubt them, no. 5 MS. LINDA ROTHSTEIN: Okay. Volume II, 6 please. Dr. Milroy, who testified here, has written on 7 the role of an expert witness, and I'm not suggesting, 8 sir, that you would have ever read this during your 9 tenure, but at Tab 11 of Volume II -- or sorry, Tab 25 of 10 Volume II at page 198, and it's 303652. 11 So you want to go to page 4 of the top 12 document, Dr. Smith. 13 DR. CHARLES SMITH: All right. 14 MS. LINDA ROTHSTEIN: And you're looking 15 for page 198 in the lefthand corner. 16 DR. CHARLES SMITH: I have it, yes. 17 MS. LINDA ROTHSTEIN: Okay. And on down 18 to the second full paragraph, quite long: 19 "The need for objectivity applies with 20 perhaps greater force to evidence of 21 medical expertise than to any other are 22 of knowledge. Medical expert opinion 23 is often readily accepted by the 24 tribunal of fact, in particular, 25 juries, precisely because of the

1 respectable and respected body of 2 opinion from which it derives. There 3 tends to be less suspicion on the part 4 of either judges or jurors as to the 5 quality and credibility of medical 6 expertise than there is in relation to 7 other sources of opinion evidence, and 8 it is for this very reason, it is 9 submitted, that the expert needs to be 10 aware of the need for self-critical 11 objectivity and an awareness of the 12 weaknesses as well as the strengths of 13 the view that he or she feels able to 14 express." 15 Does that resonate today, Dr. Smith, as 16 being a very wise view of the importance of medical 17 expert opinion? 18 DR. CHARLES SMITH: Yes, this is a -- 19 parts of this are a concept that is obviously new to me, 20 but I -- I -- I would accept this, yes. Yes. Yes, I 21 think this -- this is good advice. I'm not an expert on 22 the legal issues but I believe that is very insightful or 23 helpful. 24 MS. LINDA ROTHSTEIN: 25 "Moreover, if that point applies to

1 expert evidence arising from general 2 medical practice, it applies with 3 greater force in the more specific and 4 technical field of neuropathology in 5 which failure to present all relevant 6 information may lead to conclusions by 7 the judge or jury that are not in the 8 context of all of the other evidence in 9 the case justified." 10 Stopping there, Dr. Smith. 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: Were you aware, 13 from time to time, during your tenure as the Director of 14 the OPFPU, that lawyers, judges and juries were 15 struggling to understand the significance and veracity of 16 the complicated medical knowledge you were endeavouring 17 to impart? 18 DR. CHARLES SMITH: I -- I can't speak to 19 the degree to which they were struggling, but -- but I 20 would acknowledge that -- that they were complex issues, 21 yes. 22 MS. LINDA ROTHSTEIN: Did you not have 23 occasions where Crown attorneys were looking at you 24 desperate to understand material? 25 Were you not aware that it was hard --

1 hard for lawyers to understand what you were trying to 2 communicate? 3 DR. CHARLES SMITH: I -- I didn't 4 understand it as you've described it to me now. 5 Your -- your words are stronger than 6 anything that I -- I think I perceived. 7 MS. LINDA ROTHSTEIN: Okay. 8 Dr. Smith, I want to turn then to the 9 Amber case. 10 COMMISSIONER STEPHEN GOUDGE: Can I just 11 ask you a question, Dr. Smith? 12 DR. CHARLES SMITH: Yeah. 13 COMMISSIONER STEPHEN GOUDGE: A lot of 14 what you have said, in answer to Ms. Rothstein this 15 morning, indicates that there were standards that you 16 knew but there was, in your terms, a failure to execute? 17 DR. CHARLES SMITH: Yes, that's correct. 18 COMMISSIONER STEPHEN GOUDGE: What could 19 there have been in place that would have made your 20 execution better? 21 DR. CHARLES SMITH: Someone to have 22 taught me or watched me. I think this is, perhaps, 23 analogist to doing an autopsy; but, in fact, infinitely 24 more complex than doing an autopsy. 25 I would never expect a person, who had

1 read a chapter on how to do an autopsy, to walk into an 2 autopsy room and perform an autopsy. Though that person 3 would say, Oh, I've read the chapter, here's the points, 4 they -- they may not even know how to pick up and handle 5 the instruments properly. And I have taught residents 6 even those basic things as -- as how to hold instruments. 7 And so I think it is naive to pretend that 8 one could engage in the very difficult and foreign 9 environment of a courtroom -- that is, difficult and 10 foreign for a medical practitioner -- and expect them to 11 perform in accordance with what they may have been read 12 or told without someone saying: This is what you did 13 right. This is what you did wrong. This is what you 14 could have done better. 15 Nowhere in medicine do we expect a person 16 to perform a difficult task without adequate training. 17 And -- and yet here, apart from -- in my case, a 18 workshop, and reading a publication or a handout on that 19 workshop, I had no training. 20 And -- and just as if a person was doing 21 an autopsy, and doing it wrong because no one had taught 22 them, they could do it wrong a hundred (100) or a 23 thousand (1,000) times, and no one had said, No, you've 24 made a mistake. 25 So -- so also, I believe that if there had

1 been some situation in place where a person who is 2 impartial to the process, not necessarily a -- you know, 3 on the Crown or the defence side, but simply someone who 4 was impartial who understood the process could have taken 5 me aside afterwards and said, Let me give you my 6 insights. Let me tell you what you've done right, and 7 what you've done wrong. 8 COMMISSIONER STEPHEN GOUDGE: Couldn't 9 you have had a sense yourself, though, as to whether -- 10 take a simple principle here -- 11 DR. CHARLES SMITH: Mm-hm. 12 COMMISSIONER STEPHEN GOUDGE: -- to 13 remain objective? I mean you now recognize that you did 14 not. 15 DR. CHARLES SMITH: That's right. 16 COMMISSIONER STEPHEN GOUDGE: Why didn't 17 you at the time? 18 19 (BRIEF PAUSE) 20 21 DR. CHARLES SMITH: I can hypothesize 22 several things. I certainly found the environment 23 extremely stressful, and I'm not sure that I was as 24 objective or as uninvested in it, as I should have been. 25 And I think that -- that, at times, I may

1 have, rather than standing back being objective when 2 questioned about my opinion, I responded by trying to 3 prove my opinion was right. 4 And, so rather than standing back, trying 5 to say -- almost interpreting the questioning to show 6 that it wasn't understood, and therefore, I needed to be 7 stronger to make them understand it. 8 So I -- I don't believe I am skilled at 9 understanding those kind of -- those kind of 10 interactions. 11 COMMISSIONER STEPHEN GOUDGE: Okay. 12 Thanks. Sorry, Ms. Rothstein. 13 14 CONTINUED BY MS. LINDA ROTHSTEIN: 15 MS. LINDA ROTHSTEIN: Thank you, 16 Commissioner. Thank you, Dr, Smith. 17 Dr. Smith, for my questions about Amber, 18 you will need to turn up your written evidence which you 19 will find at Tab A of your book of written evidence, and 20 you will need Volume I of the Commission Counsel binders. 21 22 (BRIEF PAUSE) 23 24 MS. LINDA ROTHSTEIN: Dr. Smith, I 25 realize that it's hard to go from case to case and keep

1 them all straight. 2 So I'm going to begin by helping you 3 orient yourself a little bit, and see if I've got a few 4 of the facts right. 5 I understand that the trial of this case - 6 - well, that Amber died in 1988, and you did her post- 7 mortem in August of 1988. 8 DR. CHARLES SMITH: That's correct. 9 MS. LINDA ROTHSTEIN: And the trial was 10 in the fall of '89 and then in February, October, and 11 November of 1990. 12 DR. CHARLES SMITH: I believe those dates 13 are correct. 14 MS. LINDA ROTHSTEIN: And are you able to 15 assist us as to when, in that long group of trial dates, 16 you gave your testimony? 17 DR. CHARLES SMITH: It was wintertime. I 18 believe it would have been in the -- the February time 19 period, but if -- 20 MS. LINDA ROTHSTEIN: I'm not going to 21 contradict you, Dr. Smith. 22 DR. CHARLES SMITH: Okay. If -- if 23 there's a transcript that gives a date, then that's it, 24 but I recall it was -- 25 MS. LINDA ROTHSTEIN: Yeah.

1 DR. CHARLES SMITH: -- it was the -- the 2 wintertime of the year. 3 MS. LINDA ROTHSTEIN: Right. And the 4 Decision then gets released from Justice Dunn in July of 5 1991, and indeed, Justice Dunn says, in that decision, 6 that he was waiting for transcripts and so on. 7 So as I read your written evidence, I 8 understand from you, Doctor, that you are not sure 9 exactly when and how you became aware of the result, and 10 indeed, of his lengthy decision. 11 Is that right? 12 DR. CHARLES SMITH: At this point in 13 time, I don't remember, no. 14 MS. LINDA ROTHSTEIN: And if I look at 15 page 41 of your written evidence -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- I see that you 18 state that the best you can say is that you did, in fact, 19 read Justice Dunn's lengthy decision by the time you 20 prepared your response to DM's complaint to the CPSO. 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: All right. 23 DR. CHARLES SMITH: I -- I had read it at 24 some point, but I'm -- but I -- 25 MS. LINDA ROTHSTEIN: What you say, Dr.

1 Smith -- 2 DR. CHARLES SMITH: Yeah. 3 MS. LINDA ROTHSTEIN: -- is it's possible 4 that you read it earlier than that because, as you and I 5 will review in a moment, there was that SCAN Team meeting 6 at -- 7 DR. CHARLES SMITH: Meeting, that's -- 8 MS. LINDA ROTHSTEIN: -- which you 9 attended -- 10 DR. CHARLES SMITH: Mm-hm. 11 MS. LINDA ROTHSTEIN: -- in January '92, 12 right? 13 DR. CHARLES SMITH: Yes, that's correct. 14 MS. LINDA ROTHSTEIN: And if I understand 15 your written evidence correctly, it is that you may have 16 actually read it before that meeting, but maybe not. 17 At the very latest, you would have read it 18 before you sent your response to the CPSO to DM's 19 complaint, is that fair? 20 DR. CHARLES SMITH: Yeah, I -- I think 21 that's correct. 22 MS. LINDA ROTHSTEIN: So we can anchor it 23 in time by looking at Tab 3 of Volume I, which is 24 PFP302673, and is your letter to Duncan Newport, May 4th, 25 1992.

1 DR. CHARLES SMITH: Yes, I see that, yes. 2 MS. LINDA ROTHSTEIN: So that's the 3 response to the CPSO to which you refer in your written 4 evidence, am I correct about that, Dr. Smith? 5 DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: All right. Now, if 7 we can just look at the SCAN Team meeting briefly and 8 discuss it very, very briefly. If you turn to Tab number 9 6, there can't be any doubt -- it's 153142, Registrar -- 10 that you were indeed in attendance at that very large 11 meeting? 12 DR. CHARLES SMITH: Yes. Yes, that's 13 right. 14 MS. LINDA ROTHSTEIN: And can you provide 15 any recollections as to how it was that came about; 16 whether you had anything to do with it, what you recall 17 about that, sir? 18 DR. CHARLES SMITH: I -- I have very 19 limited recollection of the -- of the -- the organization 20 or the arrangement for the meeting. 21 MS. LINDA ROTHSTEIN: Do you remember 22 ever going to a meeting like that, other than on this 23 occasion; that is to say, a meeting that was really 24 focussed on looking at a decision rendered by a Court 25 that hadn't gone the way the Hospital for Sick Children

1 had hoped it would? 2 DR. CHARLES SMITH: This was unique. I - 3 - I don't remember such special meetings. 4 MS. LINDA ROTHSTEIN: Dr. Smith, am I 5 being fair when I suggest to you that whether or not, in 6 fact, you read Justice Dunn's lengthy decision before 7 that meeting, in retrospect, you certainly ought to have 8 done so? 9 10 (BRIEF PAUSE) 11 12 DR. CHARLES SMITH: I believe that I 13 should have been familiar with the issues as they related 14 to me, at least, yes. 15 MS. LINDA ROTHSTEIN: Okay. And that you 16 ought to have made every reasonable effort to ad -- to 17 read and consider those portions that related to you with 18 an open mind? 19 DR. CHARLES SMITH: Yes. Yes, that would 20 be -- that would be a reasonable approach. 21 MS. LINDA ROTHSTEIN: And I've read your 22 statement carefully, Dr. Smith, and I take your point 23 that even today, you don't agree with every criticism in 24 Justice Dunn's decision of the Hospital for Sick 25 Children, is that fair?

1 DR. CHARLES SMITH: I think that's fair. 2 MS. LINDA ROTHSTEIN: Okay. But I take 3 it, sir, you absolutely agree with me today that whether 4 he got it right or wrong, this was a very significant 5 opportunity for you and your colleagues at the hospital 6 to engage in a moment of self-reflection. 7 DR. CHARLES SMITH: Yes. Yes. 8 MS. LINDA ROTHSTEIN: So help us 9 understand, Dr. Smith, why that doesn't appear to have 10 happened. And we've heard from the other witnesses they 11 equally acknowledge that it wasn't that moment for them. 12 You're not alone in this. 13 14 (BRIEF PAUSE) 15 16 DR. CHARLES SMITH: I -- I'm not sure I 17 understand your question. 18 MS. LINDA ROTHSTEIN: What was it -- what 19 were the feelings that you had, if you can't speak for 20 your colleagues, that prevented you from bringing a truly 21 open mind to this lengthy and thorough decision from 22 Justice Dunn, and using it as an opportunity for self- 23 reflection? 24 25 (BRIEF PAUSE)

1 DR. CHARLES SMITH: I can't remember the 2 entire meeting. I -- I've seen some notes on it, and 3 some of these things -- a few points I remember. Many of 4 the points in that I don't remember. 5 So my -- my recollection of that -- of the 6 meeting is very limited. At this point in time, what I - 7 - what I recall of the meeting -- but that's not 8 necessarily the entire meeting. 9 What I recall of the meeting was 10 significant attention being directed to the issue of 11 whether the diagnosis was right or wrong. 12 And it was almost as if -- if we -- if the 13 clinicians, and if I, through the exhumation and second 14 autopsy, had the -- had the diagnosis right, then I 15 believe, as I recall -- and understand my recollection is 16 limited -- then it was -- well, there were -- there were 17 disagreements, but we think we got it right. 18 MS. LINDA ROTHSTEIN: So do I hear you to 19 say, Dr. Smith, that you and your colleagues were still 20 sufficiently confident about the underlying scientific 21 approach you'd adopted to the case, that you really 22 didn't give time to consider some of the other issues 23 that the judge raised? 24 DR. CHARLES SMITH: I -- I don't remember 25 the discussion well enough to be able to -- to agree with

1 that statement. I -- 2 MS. LINDA ROTHSTEIN: Okay. 3 DR. CHARLES SMITH: -- my -- I'm sorry, 4 but my -- my recollection really is -- is limited. 5 MS. LINDA ROTHSTEIN: So lets talk about 6 your personal reaction -- 7 DR. CHARLES SMITH: Mm-hm. 8 MS. LINDA ROTHSTEIN: -- to the decision, 9 and not your reaction at the meeting, or asking you to 10 speak for your colleagues. 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: You described it 13 yesterday with the word "embarrassing". 14 When you read the decision, did you view 15 the criticisms of you, at least, as also unfair? 16 DR. CHARLES SMITH: I -- I think at the 17 time, I did, yes. Mm-hm. 18 MS. LINDA ROTHSTEIN: Was it even more 19 than that? Did they sting? 20 DR. CHARLES SMITH: I -- I can't remember 21 just -- just what that was, but I do remember being -- 22 being embarrassed, or feeling embarrassed by that. 23 MS. LINDA ROTHSTEIN: And if you could 24 give advice to the next pathologist who receives a 25 similarly critical decision from a judge, what would you

1 say? 2 DR. CHARLES SMITH: Oh, pay careful 3 attention. You may disagree with it, but -- but that 4 view is being made from a totally different viewpoint. 5 And regardless of whether or not you, as a physician, 6 would agree with it, nevertheless it's -- it would be 7 like a -- a close call at home plate. 8 The fact that someone sees something 9 differently than you do should not suggest that -- that 10 it would be dismissed if -- if you disagree with it. 11 It's a different vantage point. 12 And -- and I see this retrospectively as 13 one (1) of those opportunities for learning that was not 14 used to the -- to the extent that it could have been. 15 MS. LINDA ROTHSTEIN: Would you please 16 turn to Tab 1, Dr. Smith, PFP302594. 17 DR. CHARLES SMITH: Tab 1 of...? 18 MS. LINDA ROTHSTEIN: Of the Book of 19 Documents as opposed to your written evidence, sir. The 20 black binder on your -- 21 DR. CHARLES SMITH: Oh. 22 MS. LINDA ROTHSTEIN: -- left. It's in 23 front of you on your left. 24 DR. CHARLES SMITH: Okay, I'm sorry. 25 MS. LINDA ROTHSTEIN: It's okay.

1 DR. CHARLES SMITH: Mm-hm. 2 MS. LINDA ROTHSTEIN: Dr. Smith, I just 3 want to review with you the circumstances in which this 4 affidavit was sworn and adduced into evidence at the 5 Inquiry. You will see that it is sworn by The Honourable 6 Patrick Dunn on December 19th, 2007. 7 Am I correct, Doctor, that it was provided 8 to your counsel in draft form even before that so you 9 would have an opportunity to review its contents? 10 DR. CHARLES SMITH: That's my 11 understanding. 12 MS. LINDA ROTHSTEIN: And that you did 13 review its contents in December of 2007? 14 DR. CHARLES SMITH: I'm not sure of the 15 exact date but I believe it was -- it was that month, 16 yes; later that month. 17 MS. LINDA ROTHSTEIN: Long before you 18 provided us with your written evidence? 19 DR. CHARLES SMITH: Yes, that would be 20 correct. 21 MS. LINDA ROTHSTEIN: And you were asked 22 by Commission Counsel whether it was necessary to call 23 Justice Dunn as a witness to speak to any of the facts 24 set out in his affidavit. 25 You understood that, did you not --

1 DR. CHARLES SMITH: I understood -- 2 MS. LINDA ROTHSTEIN: -- Dr. Smith? 3 DR. CHARLES SMITH: -- that was a 4 possibility, yes. 5 MS. LINDA ROTHSTEIN: And your counsel 6 told the Inquiry that you did not intend to dispute any 7 of the facts set out in Justice Dunn's affidavit and 8 therefore, it was not necessary for the Commission to 9 call Justice Dunn to give evidence and be cross-examined. 10 True? 11 DR. CHARLES SMITH: That's correct. 12 MS. LINDA ROTHSTEIN: Now, if we turn to 13 Justice Dunn's affidavit, you agree with him then, and 14 it's set out clearly in paragraph 3, that on one (1) 15 occasion during the course of the trial, you were on the 16 same flight as Justice Dunn from Timmins to Toronto? 17 DR. CHARLES SMITH: That's correct. 18 MS. LINDA ROTHSTEIN: That you and 19 Justice Dunn exchanged pleasantries on that flight? 20 DR. CHARLES SMITH: Yes. 21 MS. LINDA ROTHSTEIN: And that he did not 22 discuss -- in his words, he is certain he did not discuss 23 the merits of the case or the evidence with you. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: And, Dr. Smith, you

1 appreciate, do you not, that it would be unethical for a 2 judge to do that? 3 DR. CHARLES SMITH: I -- I appreciate 4 that -- that now, yes. 5 MS. LINDA ROTHSTEIN: Dr. Smith, you 6 appreciated, in 1992, that it would be improper for a 7 judge to talk to you in the middle of the trial about the 8 evidence or his thinking or his conclusions, did you not? 9 DR. CHARLES SMITH: I -- I would have 10 said that, yes. 11 MS. LINDA ROTHSTEIN: Because you would 12 have known that to be true? 13 DR. CHARLES SMITH: I believe I would 14 have -- I would have said that that was my 15 understanding; whether it was correct or not, I can't 16 tell you. 17 MS. LINDA ROTHSTEIN: And Justice Dunn, 18 we are agreed, never told you that SM was guilty? 19 DR. CHARLES SMITH: I accept that, yes. 20 MS. LINDA ROTHSTEIN: Let alone that she 21 was "guilty as sin", isn't that right? 22 DR. CHARLES SMITH: I -- I am ashamed of 23 that remark. You're correct. 24 MS. LINDA ROTHSTEIN: And he did not say 25 that he believed the evidence of Dr. Barker, did he?

1 DR. CHARLES SMITH: What he said led me 2 to that interpretation. 3 MS. LINDA ROTHSTEIN: But he did not -- 4 DR. CHARLES SMITH: But -- but I -- 5 MS. LINDA ROTHSTEIN: -- say that, sir. 6 DR. CHARLES SMITH: No. I do not dispute 7 that statement, no. 8 MS. LINDA ROTHSTEIN: And he did not 9 actually talk about the evidence, sir? 10 DR. CHARLES SMITH: I believe that that 11 is correct, yes. Yes. 12 MS. LINDA ROTHSTEIN: Justice Dunn did 13 not say that he believed the evidence of any of the 14 Hospital for Sick Children witnesses, isn't that true, Dr 15 Smith? 16 DR. CHARLES SMITH: No. No, at this 17 point I believe that he did not say that. I -- I made 18 that interpretation and that was a mistake. 19 MS. LINDA ROTHSTEIN: Nor did Justice 20 Dunn make any arrangements to move your flight from one 21 (1) airline to another, did he? 22 DR. CHARLES SMITH: I -- I don't 23 specifically recall just what was going on there, but if 24 that is his recollection, I do not dispute it. 25 MS. LINDA ROTHSTEIN: Paragraph 7 he

1 says: 2 "I have no recollection of making any 3 arrangements with regards to Dr. 4 Smith's airline tickets and I do not 5 believe I would have made any such 6 arrangements." 7 DR. CHARLES SMITH: I'm sorry, where -- 8 where did you see that? 9 MS. LINDA ROTHSTEIN: Paragraph 7 on page 10 2, 302 -- 11 DR. CHARLES SMITH: Okay. 12 MS. LINDA ROTHSTEIN: -- 594. 13 DR. CHARLES SMITH: Oh, I see it. Yes, I 14 have it, mm-hm. Yes, I see that. 15 MS. LINDA ROTHSTEIN: Again, it would 16 have been extremely unusual, if not, inappropriate for 17 him to have done so, would it not, Dr. Smith? 18 DR. CHARLES SMITH: Yes. Yes. 19 MS. LINDA ROTHSTEIN: In fact, if we look 20 at paragraph -- or page 41 of your written evidence, it 21 wasn't until you boarded the plane that realised that you 22 were seated next to Justice Dunn. 23 DR. CHARLES SMITH: That's correct. 24 That's correct. 25 MS. LINDA ROTHSTEIN: That surprised you.

1 DR. CHARLES SMITH: It did, yes. 2 MS. LINDA ROTHSTEIN: Understandably made 3 you uncomfortable. 4 DR. CHARLES SMITH: I was very 5 uncomfortable, yes. 6 MS. LINDA ROTHSTEIN: Because you did 7 know that witnesses and Judges are to have minimal 8 contact with each other during a trial. 9 DR. CHARLES SMITH: Yes, I -- I have 10 never had such communication or such interaction with a 11 Judge. 12 MS. LINDA ROTHSTEIN: Quite apart from 13 your conversation with Justice Dunn on the airplane, it 14 is also true, isn't it, Dr. Smith, that at no time has 15 Justice Dunn ever told you that he thought SM was guilty 16 or that his views had changed in any way? 17 DR. CHARLES SMITH: No. No. I believe 18 that I misunderstood our conversations, and I came -- I 19 came to believe that. I think I heard what I wanted to 20 hear. 21 MS. LINDA ROTHSTEIN: So you agree with 22 the statement I put to you, sir, that at no time in any 23 conversation you ever had with him did he ever tell you 24 any such thing? 25 DR. CHARLES SMITH: I agree with that,

1 yes. 2 MS. LINDA ROTHSTEIN: Many years later 3 you met Justice Dunn at a conference? 4 DR. CHARLES SMITH: Excuse me. Yes, that 5 was some years later. 6 MS. LINDA ROTHSTEIN: Justice Dunn 7 recalls it was in the early '90's. I see in your re -- 8 in evidence that your best recollection that is was 9 January 1998, do you see that? 10 DR. CHARLES SMITH: Yes, I believe it was 11 much later than that. 12 MS. LINDA ROTHSTEIN: And I take it, sir, 13 that's because your curriculum vitae records that you 14 attended a conference of the Association of Family Court 15 Judges of Ontario in January of 1998? 16 DR. CHARLES SMITH: Yes, it was in the 17 context of that -- of that conference. 18 MS. LINDA ROTHSTEIN: You were an invited 19 lecturer at that conference? 20 DR. CHARLES SMITH: I was, yes. Dr. 21 Huyer and I -- and I were -- were lecturing. 22 MS. LINDA ROTHSTEIN: Your topic was the 23 scientific basis of child abuse evaluations? 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: You conversation

1 with Justice Dunn was very brief? 2 DR. CHARLES SMITH: Yes, it was. 3 MS. LINDA ROTHSTEIN: And again, at no 4 time during that brief conversation did Justice Dunn 5 actually discuss with you your evidence or the evidence 6 of any of your hospital colleagues, correct? 7 DR. CHARLES SMITH: That's correct. 8 MS. LINDA ROTHSTEIN: Now, Dr. Smith, 9 over the years you've told a number of people, as 10 acknowledged yesterday, a very different account of these 11 offen -- of these events, have you not? 12 DR. CHARLES SMITH: I have, yes. 13 MS. LINDA ROTHSTEIN: You've mislead many 14 people about your conversations with Justice Dunn, have 15 you not? 16 DR. CHARLES SMITH: Well, that is 17 stronger language than I -- that I would use. The 18 statements that I made were wrong, and I acknowledge 19 that. The statements that I -- that I made, at least in 20 part, were on what I thought I heard, or I selectively 21 heard, or how I interpreted what I heard. 22 MS. LINDA ROTHSTEIN: Let's look at your 23 statements then -- 24 DR. CHARLES SMITH: Mm-hm. 25 MS. LINDA ROTHSTEIN: -- if we can.

1 Let's turn up Tab number 3, which is that letter that you 2 wrote to Duncan Newport, the Complaints Investigator for 3 the College of Physicians and Surgeons. 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: It's at PFP302673. 6 DR. CHARLES SMITH: Mm-hm. 7 MS. LINDA ROTHSTEIN: And it's dated May 8 the 4th, 1992. 9 DR. CHARLES SMITH: Yes. 10 MS. LINDA ROTHSTEIN: It's the same month 11 that you became the Director, right, Dr. Smith? 12 DR. CHARLES SMITH: In -- in -- I believe 13 that's -- I believe that's right, yeah. 14 MS. LINDA ROTHSTEIN: And it's the same 15 month that you gave the lecture on how to be an expert 16 witness? 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: Any doubt that this 19 was an important letter, Doctor? 20 DR. CHARLES SMITH: No. No. 21 MS. LINDA ROTHSTEIN: It's your written 22 response to the first complaint to the CPSO that had ever 23 been made about your professional conduct. 24 Am I right? 25 DR. CHARLES SMITH: Yes, it was. Yes.

1 MS. LINDA ROTHSTEIN: It was from the 2 father of the accused babysitter? 3 DR. CHARLES SMITH: That's correct. 4 MS. LINDA ROTHSTEIN: Now, looking at 5 your letter is it fair to infer from it that you didn't 6 think it was appropriate for the CPSO to even consider 7 the complaint? 8 DR. CHARLES SMITH: That's correct. 9 MS. LINDA ROTHSTEIN: Tell us how you 10 came to that conclusion, if you would, please. 11 DR. CHARLES SMITH: Oh, I discussed that 12 with -- with Dr. Young. As -- when I received the letter 13 of complaint, I was uncertain of how to respond to it 14 because so much of it dealt with the coroner, the 15 judicial system, and so I discussed it with Dr. Young. 16 And -- and it was my understanding that he 17 felt that this was outside of the -- or he communicated 18 to me that he thought it was -- it was outside of the -- 19 of College jurisdiction, that if it was a corner's issue 20 then he was the one through the Coroners Commission -- 21 Coroners Council -- some -- 22 MS. LINDA ROTHSTEIN: Mm-hm. The 23 Coroners Council. 24 DR. CHARLES SMITH: -- some body -- 25 MS. LINDA ROTHSTEIN: Mm-hm.

1 DR. CHARLES SMITH: -- some body that 2 existed, to consider it, and so that it was -- it was not 3 a College responsibility. 4 That's -- that's the best of my 5 recollection of -- of the advice that I was given. 6 MS. LINDA ROTHSTEIN: So do I hear you to 7 be telling the Commissioner, Dr. Smith, that the notion 8 that this wasn't the appropriate role for the College of 9 Physicians and Surgeons, that was first something that 10 Dr. Young expressed? 11 It was not something that you thought of 12 independent of him? 13 DR. CHARLES SMITH: I -- I don't recall 14 that, I can't answer that. 15 MS. LINDA ROTHSTEIN: You're not sure -- 16 DR. CHARLES SMITH: I -- 17 MS. LINDA ROTHSTEIN: -- who came up -- 18 DR. CHARLES SMITH: I'm not -- 19 MS. LINDA ROTHSTEIN: -- with that 20 notion? 21 DR. CHARLES SMITH: No, I'm not sure. I 22 -- I do remember Dr. Young's viewpoint, but whether he 23 presented it to me or I had some notion and -- and he 24 expressed an opinion to me, I don't recall. 25 MS. LINDA ROTHSTEIN: As you may have

1 heard, Dr. Young, when he testified, appears to still be 2 mostly of the view that too much regulation of forensic 3 pathologists is very problematic for the reasons that you 4 articulate in this letter, frankly. 5 I'm curious as to what your views are 6 today, Doctor. 7 DR. CHARLES SMITH: There needs -- there 8 needs to be regulation and oversight. But how -- how to 9 execute it is -- is something that -- that I don't think 10 I can -- I can help the Commission with, simply because I 11 don't think I have the -- the knowledge and the 12 understanding, nor the appreciation of where in the 13 Province forensic pathology will be going or should be 14 going. And I believe that that's better answered as part 15 of a -- of an overall approach as opposed to separating - 16 - separating it out. 17 But -- but doubtless, there does need to 18 be oversight and regulation. And that's not for the 19 purpose of simply finding mistakes but rather it creates 20 a wonderful educational opportunity and -- and can help 21 create environments for quality assurance as well. 22 So, oversight and regulation are -- are 23 very important, but how they are to be done, I -- I could 24 not advise you. 25 MS. LINDA ROTHSTEIN: Can you describe

1 for us, Dr. Smith, how you recall reacting when you 2 received the complaint -- 3 DR. CHARLES SMITH: I -- 4 MS. LINDA ROTHSTEIN: -- from the father. 5 DR. CHARLES SMITH: I don't -- I don't 6 have a specific recollection of that, no. 7 MS. LINDA ROTHSTEIN: Do you remember 8 being angry? Do you remember being frustrated? Any of 9 that? Is that fair to attribute to you? 10 DR. CHARLES SMITH: I don't remember. I 11 don't remember it, so I don't -- I don't know what 12 adjectives I would use to describe my reaction. 13 MS. LINDA ROTHSTEIN: If we look at page 14 3 of your letter, this penultimate paragraph: 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: 17 "Clearly the college is obligated to 18 investigate complaints against a 19 physician, and that complaint may be 20 based upon a diagnosis which is 21 reasonable but which is not upheld in 22 Court. However the spinoff of the 23 complaint's investigation process may 24 be to the detriment of the citizens of 25 this Province. At the best of time,

1 physicians are reluctant to testify in 2 Court. Should it become commonplace 3 for physicians to be investigated by 4 the College when their medical opinion 5 is not upheld in a Court of law, there 6 will be an even greater disincentive 7 for physicians to participate in 8 important medicolegal matters." 9 DR. CHARLES SMITH: Yes, I see that. 10 MS. LINDA ROTHSTEIN: How strongly did 11 you feel about that, Dr. Smith? 12 13 (BRIEF PAUSE) 14 15 DR. CHARLES SMITH: I -- I don't recall 16 how strongly I -- I felt, but I do think that that 17 represented my view at the time, and the view, you know, 18 of other colleagues because I wanted to communicate, this 19 wasn't an issue that was specific to me, but it could 20 have broader implications. 21 MS. LINDA ROTHSTEIN: Okay. Now if we 22 can look precisely at what you said in that letter about 23 your conversation with Justice Dunn. You'll find that at 24 the top of page 2. 25 DR. CHARLES SMITH: Yes.

1 MS. LINDA ROTHSTEIN: In the middle of 2 the first paragraph, you say: 3 "In spite of several days of vigorous 4 cross-examination by the defence 5 counsel for SM, Mr. Renault, my opinion 6 did not waiver." 7 You then say: 8 "Furthermore, on two (2) occasions 9 during my week of testimony, the judge, 10 Patrick Dunn, discussed my evidence 11 with me at length." 12 "Two (2) occasions". 13 Those words were not true, were they, Dr. 14 Smith? 15 DR. CHARLES SMITH: No. I -- I erred -- 16 I erred in that. 17 MS. LINDA ROTHSTEIN: And you knew they 18 were not true when you wrote them, sir. 19 20 (BRIEF PAUSE) 21 22 DR. CHARLES SMITH: I'm not sure just -- 23 just what my thinking was then. I don't recall. But 24 they are wrong, and -- and I'm very sorry for that. 25 MS. LINDA ROTHSTEIN:

1 "Discussed my evidence with me at length." 2 Those words are completely untrue, are they 3 not? 4 DR. CHARLES SMITH: That's wrong. That's 5 -- that's what I believed, but that is -- it is not true, 6 and I acknowledge that. 7 MS. LINDA ROTHSTEIN: Doctor, you knew 8 that wasn't true when you wrote that. 9 DR. CHARLES SMITH: No. No. When I got 10 off the aircraft, if you had asked me about my flight, or 11 asked me about conversations on my flight, that is what I 12 would have -- what I would have told you because that was 13 my -- that was my understanding or my reaction. 14 MS. LINDA ROTHSTEIN: 15 "He repeatedly indicated to me that he 16 believed SM to be guilty." 17 DR. CHARLES SMITH: That's -- I believe I 18 heard what I wanted to hear on that -- he -- based on his 19 complimentary statements about -- about the witnesses. 20 And I now realize that that was, perhaps, better 21 described as pleasantries in his conversation, so. 22 Though -- though that was my 23 interpretation, and I believe I came to believe my 24 interpretation, I recognize that that is wrong, and I -- 25 and I'm terribly, terribly embarrassed by it.

1 MS. LINDA ROTHSTEIN: Dr. Smith, when did 2 you first become conscious that you were significantly -- 3 significantly misstating your conversations with Justice 4 Dunn? 5 6 (BRIEF PAUSE) 7 8 MS. LINDA ROTHSTEIN: When you were 9 confronted with his affidavit? 10 DR. CHARLES SMITH: It was in -- in 11 discussing it with my lawyers and trying to dissect out 12 what I could remember of those situations and -- 13 MS. LINDA ROTHSTEIN: Discussing with 14 your lawyer, Justice Dunn's affidavit? 15 DR. CHARLES SMITH: They -- they were 16 asking me about what I remembered and such and it was 17 clear that what I remembered and what -- and how I had 18 interpreted it, significantly differed from -- from the 19 information that they had. Yes. 20 MS. LINDA ROTHSTEIN: So it's your 21 evidence that it wasn't until then that you had any 22 conscious awareness of your untruthfulness? 23 24 (BRIEF PAUSE) 25

1 DR. CHARLES SMITH: Yes, I believe that's 2 correct. Yeah. It was -- it was an interaction that I - 3 - that occurred and I came to believe what I heard or 4 what I thought I heard and what I interpreted, and it was 5 wrong, and I acknowledge it was wrong. 6 MS. LINDA ROTHSTEIN: Are there any other 7 examples of that kind of -- forgive me, Dr. Smith -- 8 self-delusion in your professional life? 9 10 (BRIEF PAUSE) 11 12 DR. CHARLES SMITH: At this point, I 13 can't -- I can't think of any. 14 MS. LINDA ROTHSTEIN: Did you talk to 15 anyone other than Dr. Young before preparing this 16 response? 17 DR. CHARLES SMITH: I -- I don't recall. 18 MS. LINDA ROTHSTEIN: If we look at your 19 May 1992 lecture, you describe this sort of issue as a 20 "sticky situation". 21 DR. CHARLES SMITH: I'm -- I'm sorry. 22 MS. LINDA ROTHSTEIN: If we look at your 23 guest lecture -- Dr. Smith. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: Which is at Tab 11.

1 DR. CHARLES SMITH: Yes. 2 MS. LINDA ROTHSTEIN: The bottom of page 3 2. 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: 05666 -- 678. 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: 8 "When you're in trouble, don't fix it 9 yourself. You've lost objectivity. 10 The Upper Canada Law Society encounters 11 a phenomenon which is well known to the 12 CMPA. It is common for your young 13 practitioner, when they are getting 14 into a sticky situation, to rely solely 15 on their own abilities to dig them out 16 and that does not work. A person is 17 too close to the problem to have an 18 objective perspective and thus is not 19 in the best position to solve a 20 problem." 21 Do you see those words? 22 DR. CHARLES SMITH: I see those words, 23 yes. 24 MS. LINDA ROTHSTEIN: Ought they to have 25 resonated when you were preparing your response to Duncan

1 Newport? 2 DR. CHARLES SMITH: Retrospectively, I 3 see that they should have, yes. They were not written 4 for that purpose but I -- but as you bring them to my 5 attention now, I can see that that's correct. 6 MS. LINDA ROTHSTEIN: Did you persuade 7 yourself about what Justice Dunn had said because you 8 felt his decision had the power to unfairly expose you to 9 criticism? 10 11 (BRIEF PAUSE) 12 13 DR. CHARLES SMITH: I certainly felt 14 embarrassed by it at the time of the much later 15 conversation. And at the time of this -- of this earlier 16 event, I have no recollection of -- of what you've asked. 17 MS. LINDA ROTHSTEIN: As years went on 18 and you talked about this case, had you become concerned 19 that it would cast a shadow over your work? A shadow 20 that you viewed as unfair? 21 DR. CHARLES SMITH: No, I don't think I 22 viewed it in that way. No. 23 MS. LINDA ROTHSTEIN: Why not? 24 DR. CHARLES SMITH: Well, the -- the 25 complaint had been made. I had responded, and then there

1 was a period of silence for many years. So I thought 2 that the -- the issue had -- had been dealt with or 3 resolved, though I was -- though I was sensitive to the 4 criticism when I -- when I met Judge Dunn many years 5 later, or embarrassed by the criticism. 6 I believe that in the intervening time 7 period, that my response -- or that my feelings largely 8 dealt with the -- the pathology, the diagnostic accuracy. 9 And the way I had handled that was to begin to engage in 10 some research endeavours that might help better define 11 diagnostic criteria for Shaken Baby Syndrome. 12 So -- so I regarded it in that period of 13 intervening years as a stimulus to come up with a better 14 answer, though I did continue to feel some embarrassment 15 about -- about the judgment. 16 MS. LINDA ROTHSTEIN: And is that why you 17 told untrue accounts of your conversations with Justice 18 Dunn to many others over the years? 19 You told Dr. Young an untrue account of 20 your conversation with Justice Dunn, did you not? 21 DR. CHARLES SMITH: I -- I don't recall 22 that. 23 MS. LINDA ROTHSTEIN: Dr. Young says you 24 did. 25 DR. CHARLES SMITH: That could be. I --

1 I could not dispute that. 2 MS. LINDA ROTHSTEIN: You told Dr. Cairns 3 an untrue account of your conversations with Dr. Young -- 4 or sorry, with doc -- with Justice Dunn. 5 Do you dispute that? 6 DR. CHARLES SMITH: No, I don't dispute 7 that. I have no recollection of it. 8 MS. LINDA ROTHSTEIN: Do you recall 9 telling Dr. Huyer about Justice Dunn? 10 DR. CHARLES SMITH: No, I don't. 11 MS. LINDA ROTHSTEIN: Dr. Driver? 12 DR. CHARLES SMITH: No, I don't. 13 MS. LINDA ROTHSTEIN: Dr. Mian? 14 DR. CHARLES SMITH: No, I don't. 15 MS. LINDA ROTHSTEIN: Dr. Phillips? 16 DR. CHARLES SMITH: No. No, I don't. 17 No. 18 MS. LINDA ROTHSTEIN: But you don't 19 dispute the evidence they've given that you told them 20 some untrue -- what we now is an untrue version -- 21 DR. CHARLES SMITH: Well, I -- I -- 22 MS. LINDA ROTHSTEIN: -- of that 23 conversation. 24 DR. CHARLES SMITH: Yeah. No, I -- I 25 don't dispute that whatever -- whatever I said to one (1)

1 person, I said to someone else. I believed it -- I 2 believe that's what had happened, but it was wrong. 3 MS. LINDA ROTHSTEIN: Now, in addition to 4 that, you testified in the preliminary inquiry in 5 Dustin's case on May 4th, 1992 -- sorry, in Dustin's case 6 about two (2) years later, in 1994. 7 Can I take you to that? Tab 12, please, 8 of Volume I. 9 DR. CHARLES SMITH: Oh, I'm sorry. Yes. 10 MS. LINDA ROTHSTEIN: PFP048194. This is 11 the transcript of the preliminary inquiry before the 12 Honourable Judge Hunter on March 30th, 1994 in 13 Belleville. Sheila Walsh was counsel for the Crown and 14 Mr. Graydon was counsel for the accused. 15 Do you remember that, Dr. Smith? 16 DR. CHARLES SMITH: I have very little 17 recollection of -- of that. 18 MS. LINDA ROTHSTEIN: Let's look at page 19 69 of that transcript, if we can. This is the cross- 20 examination by counsel for the defence, Mr. Graydon. And 21 if you look at page 68 on this double-sided copy, you'll 22 see that he is asking you firstly about the autopsy that 23 had been performed in this case by Dr. Nag. 24 Do you remember that? 25 DR. CHARLES SMITH: No, I'm -- I'm sorry,

1 I -- 2 MS. LINDA ROTHSTEIN: I'm trying to 3 orient you, Dr. Smith. 4 DR. CHARLES SMITH: I -- I've just -- I - 5 - I'm sorry, I was reading and I should have been 6 listening to your question, my apologies. 7 MS. LINDA ROTHSTEIN: Let's go back. 8 DR. CHARLES SMITH: Yeah, mm-hm. 9 MS. LINDA ROTHSTEIN: I'm just trying to 10 orient you that this was the cross-examination and you 11 were giving evidence about the autopsy that had been be - 12 - performed by Dr. Nag. 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: All right. And 15 then at the top of page 69 -- 16 DR. CHARLES SMITH: Yes. 17 MS. LINDA ROTHSTEIN: -- you've said 18 something quite uncharitable about Dr. Nag. 19 DR. CHARLES SMITH: Yes, I did. 20 MS. LINDA ROTHSTEIN: Are we agreed? 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: You describe Dr. 23 Nag as having performed a "botched autopsy," to use your 24 words. 25 DR. CHARLES SMITH: Yes, I -- I'm sorry

1 for that statement. 2 MS. LINDA ROTHSTEIN: 3 "The report of this autopsy, the paper 4 that this autopsy is written on, is not 5 worthy of filing as an exhibit. It 6 should be filed in the garbage can." 7 Very strong language. 8 DR. CHARLES SMITH: It is, yes. 9 MS. LINDA ROTHSTEIN: And then you're 10 asked at the bottom of the page: 11 "You'd say that to Dr. Nag in this 12 courtroom now? 13 A: If she was here, she would have 14 heard it -- she would have that 15 statement. 16 DR. CHARLES SMITH: Yes. 17 MS. LINDA ROTHSTEIN: 18 Q: But people have said that about 19 you. They've alleged you've done 20 shoddy work, too. 21 A: That's absolutely true. 22 Q: Judges have said that about you. 23 You've done shoddy work. 24 A: One (1) judge. I'm told by you, 25 one (1) judge wrote that in his

1 submission. I don't know. I don't 2 know what he wrote. That's Judge Dunn, 3 who prior to the -- hearing the defence 4 experts, in fact, told me on more than 5 one (1) occasion -- private 6 conversations -- how hasty he was with 7 the work I had done and others had 8 done, at the hospital." 9 Dr. Smith, you did know what Justice Dunn 10 had said about you because you had read his reasons for a 11 decision, had you not? 12 DR. CHARLES SMITH: Yes. By that time I 13 would have, yes. Yes. 14 MS. LINDA ROTHSTEIN: You also knew 15 perfectly well that Justice Dunn had never said on more 16 than one (1) private occasion how hasty he was with the 17 work that you or others had done at the hospital. 18 DR. CHARLES SMITH: That -- that's 19 correct. I don't -- I don't remember this remark, or 20 this statement about -- 21 MS. LINDA ROTHSTEIN: Your testimony was 22 untrue, sir. 23 DR. CHARLES SMITH: It was wrong. 24 MS. LINDA ROTHSTEIN: It was untrue, sir. 25 DR. CHARLES SMITH: Yes. It's a mistake,

1 and I was wrong. Yes. 2 MS. LINDA ROTHSTEIN: You were under 3 oath, Dr. Smith. 4 DR. CHARLES SMITH: And -- and I 5 understand that, and -- and I made a mistake. I'm not 6 sure why I made that mistake, but I made a mistake, and 7 it was wrong. 8 MS. LINDA ROTHSTEIN: Were there other 9 occasions when you were asked about the decision of 10 Justice Dunn under oath? 11 DR. CHARLES SMITH: I can't remember. 12 MS. LINDA ROTHSTEIN: There may have 13 been? 14 DR. CHARLES SMITH: There may have been, 15 yes. 16 MS. LINDA ROTHSTEIN: Was that the level 17 of candour and truthfulness that the Justice System is 18 entitled to expect from an expert? 19 DR. CHARLES SMITH: I erred. No. I 20 erred on that. I should have been much more careful 21 rather than reactive in this answer. I -- I'm sorry. I 22 erred. 23 MS. LINDA ROTHSTEIN: Dr. Smith, am I 24 correct that it's unusual to have a lengthy judgment from 25 a trial judge at the end of a murder trial, in your

1 experience? 2 DR. CHARLES SMITH: I -- I don't know 3 anything about that. 4 MS. LINDA ROTHSTEIN: They're mostly 5 tried before juries? 6 DR. CHARLES SMITH: Oh, I -- I see what 7 you mean. 8 9 (BRIEF PAUSE) 10 11 DR. CHARLES SMITH: So -- help -- I -- I 12 need to understand your question here, yeah. 13 MS. LINDA ROTHSTEIN: I'm just suggesting 14 that you -- mostly you have a jury, and they don't write 15 judgments or give reasons for a decision. Just a fairly 16 simple point. 17 DR. CHARLES SMITH: That's -- yeah, I -- 18 that's my understanding of that, yes. 19 MS. LINDA ROTHSTEIN: Okay. And so no 20 one really knows why they decide what they decide. 21 DR. CHARLES SMITH: That's my 22 understanding. 23 MS. LINDA ROTHSTEIN: Commissioner, I see 24 that I'm over my time for the morning break, and this 25 might be a good time --

1 COMMISSIONER STEPHEN GOUDGE: Is that a 2 good time to break? 3 MS. LINDA ROTHSTEIN: -- to take it. 4 COMMISSIONER STEPHEN GOUDGE: Okay. We 5 will rise then for fifteen (15) minutes. 6 7 --- Upon recessing at 11:20 a.m. 8 --- Upon commencing at 11:39 a.m. 9 10 THE REGISTRAR: All rise. Please be 11 seated. 12 COMMISSIONER STEPHEN GOUDGE: Ms. 13 Rothstein...? 14 15 CONTINUED BY MS. LINDA ROTHSTEIN: 16 MS. LINDA ROTHSTEIN: Thank you very 17 much, Commissioner. Dr. Smith. 18 I want to turn back to consider in a 19 little more detail with you, if we can, Dr. Smith, the 20 issue of peer review and your relationship with the OCCO. 21 Starting with the OCCO, we know from Dr. 22 Cairns -- we've heard from him that he worked fairly 23 closely with you over the years. Is that a fair 24 characterization? 25 DR. CHARLES SMITH: Yes. He -- of all of

1 the coroners who were part of the Office of the Chief 2 Coroner -- that is the Chief and the Deputy Chief for the 3 Regionals -- by the time the end of the 1990s came along, 4 I certainly had more interaction with him than with -- 5 with anyone else. 6 MS. LINDA ROTHSTEIN: How frequent was 7 that interaction, Dr. Smith? 8 9 (BRIEF PAUSE) 10 11 DR. CHARLES SMITH: The interaction varied 12 on a case-by-case basis, because much of it -- the 13 majority of it -- was dependent, or the majority of the 14 interaction was dependent or centred on cases that were 15 going through. And -- and so it would generally consist 16 of telephone conversations and those kind of 17 communications. 18 MS. LINDA ROTHSTEIN: Did he become a 19 friend? 20 DR. CHARLES SMITH: No. No. We -- we 21 were professional colleagues who, I think, respected each 22 other, but I'm not sure that we would be friends the way 23 that one would use that term socially. 24 MS. LINDA ROTHSTEIN: Okay. Looking 25 back, Dr. Smith, how able was Dr. Cairns to provide

1 meaningful and effective peer review of your work? 2 DR. CHARLES SMITH: He was able to 3 provide some, and I valued his opinions. I don't think 4 he would ever pretend to know as much as a pathologist, 5 but I certainly knew from even when he began his role at 6 the Office of the Chief Coroner that he certainly knew 7 and understood forensic pathology much better than many 8 of the other coroners. 9 MS. LINDA ROTHSTEIN: Did you look to him 10 for peer review? 11 DR. CHARLES SMITH: I looked to him for 12 advice. I'm not sure I would define -- necessarily 13 define it as -- as peer in a narrow sense. 14 Yet in a broader sense, because it dealt 15 with medicolegal issues and -- and that was his area of 16 involvement, that in that aspect it would be peer review. 17 And to the extent that he understood pathology, I 18 recognized his -- his expertise and insight. 19 MS. LINDA ROTHSTEIN: We have heard that 20 Dr. Young worked much less closely with you. Does that 21 accord with your recollection? 22 DR. CHARLES SMITH: In the -- in the time 23 period after Dr. Cairns joined the Office of the Chief 24 Coroner, that would be correct. 25 Prior to that time, I would have dealt

1 with Dr. Young perhaps more than the Regional Coroner, 2 Dr. Huxter, and -- and I think more than the Chief 3 Coroner, Dr. Bennett. 4 So there was a shift with differing 5 responsibilities at the Office of the Chief Coroner. 6 MS. LINDA ROTHSTEIN: But by the mid-'90s 7 your main contact at the OCCO was Dr. Cairns? 8 DR. CHARLES SMITH: That's correct. 9 MS. LINDA ROTHSTEIN: How able was Dr. 10 Young to provide meaningful and effective peer review? 11 DR. CHARLES SMITH: In terms of the 12 pathology, we didn't -- we didn't discuss that very much, 13 apart from a case-by-case basis when that was 14 appropriate, such as in the Amber case. 15 I certainly respected his knowledge and 16 understanding of the coronial system and the death 17 investigation process. 18 So to the degree that that insight 19 provided peer review in -- in that environment as opposed 20 to a pediatric pathology environment, yes, there was -- 21 there was peer -- I regarded it as -- as peer review or 22 supervision or some -- some such term. 23 MS. LINDA ROTHSTEIN: Okay. Dr. 24 Chiasson, we talked about him yesterday, he was certainly 25 junior to you. He was a resident under your direction

1 for a period of time? 2 DR. CHARLES SMITH: Yes. 3 MS. LINDA ROTHSTEIN: He was not 4 certified as a pediatric pathologist? 5 DR. CHARLES SMITH: He -- he chose not to 6 be certified. I think he would have been eligible for 7 that certification if he chose it. 8 MS. LINDA ROTHSTEIN: Okay. We know that 9 starting in 1995, he certainly did conduct paper reviews 10 of all your post-mortem reports in criminally suspicious 11 cases, so there's no issue about that, and you've also 12 described how sometimes he could have chosen to do more 13 than a peer paper review by looking at the underlying 14 materials that you looked at, so -- 15 DR. CHARLES SMITH: That -- that's 16 correct. 17 MS. LINDA ROTHSTEIN: -- we have that 18 point. But my question for you, Dr. Smith, is: Did you 19 look to him for meaningful peer review or not? 20 21 (BRIEF PAUSE) 22 23 DR. CHARLES SMITH: As I -- as I think 24 back on it from this point of view, I -- I do think I 25 did. Though we worked in different domains, I understood

1 his training, his -- his knowledge in pediatric 2 pathology, and I -- and I had a great deal of respect for 3 his opinion, and I had done that even in the time when -- 4 when he was a resident. 5 MS. LINDA ROTHSTEIN: For his opinion in 6 pediatric forensic pathology? 7 DR. CHARLES SMITH: Yeah, even as a 8 resident. I can think of one (1) situation wherein he 9 challenged me on a diagnosis, and even years later, we 10 discussed that and that -- that case or that problem 11 issue. 12 Yeah, I -- I have -- I have a great deal 13 of respect for -- for his insight. 14 MS. LINDA ROTHSTEIN: Could you pick 15 Volume III from your binders, and can you turn up Tab 11 16 of that binder. 17 I'm going to take you to the evidence that 18 you gave on November the 8th of 2001 before Justice 19 Harris at the Kporwodu Preliminary Inquiry. 20 DR. CHARLES SMITH: Mm-hm, mm-hm, yes. 21 MS. LINDA ROTHSTEIN: This was a 22 difficult time in your career, I suspect, Dr. Smith. 23 November of 2001, the OCCO had announced, at your 24 request, a review of your work. 25 You were now being called as a witness in

1 Kporwodu to explain the delays in preparing your original 2 post-mortem report and your addendum, you recall that? 3 DR. CHARLES SMITH: Yes, yes. 4 MS. LINDA ROTHSTEIN: And Ms. Cindy 5 Wasser was one (1) of the defence counsel who was cross- 6 examining you about a wide range of things. 7 DR. CHARLES SMITH: Things, yes. 8 MS. LINDA ROTHSTEIN: It was a quite 9 probing examination of what you'd done up to 2001; at 10 least, that's what the defence were hoping to achieve. 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: Is that a fair -- 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: -- summary? 15 DR. CHARLES SMITH: Yes. 16 MS. LINDA ROTHSTEIN: And so she was 17 asking you a lot about your qualifications, Dr. Smith, 18 and she was challenging your background to the extent 19 that she could, is that fair? 20 DR. CHARLES SMITH: That's how I recall 21 it, yes. 22 MS. LINDA ROTHSTEIN: And at page 73, she 23 was in the process of asking you, if you look at the top 24 of the page, 73 with the slash, page 72 of the actual 25 transcript --

1 DR. CHARLES SMITH: Mm-hm. 2 MS. LINDA ROTHSTEIN: -- about 3 publications. She was actually asking you about your 4 opinion of Dr. Ferris' work. You can see that on page 5 72. DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: You may recall, 7 sir, that you'd made some critical comments about Dr. 8 Ferris' work. 9 DR. CHARLES SMITH: That was unkind of me 10 and I acknowledge that, yes. 11 MS. LINDA ROTHSTEIN: And then in the 12 course of reviewing with you the kind of reviews to which 13 your work had been subject, to that point in time, she 14 asked, at the bottom of page 73, this question: 15 "Now, Dr. David Chiasson is the doctor 16 that reviews your work. Do you respect 17 his opinions and his work?" 18 And you had already given evidence that 19 indeed he reviewed it. 20 A: "Yes, in adult stuff. Understand 21 that when it comes to pediatric 22 forensic work, such as he will be doing 23 next week at the Hospital for Sick 24 Children, I supervise him." 25 DR. CHARLES SMITH: Yes, that's correct.

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1 MS. LINDA ROTHSTEIN: Ought we to read 2 into that some suggestion, at least back then, that you 3 didn't really respect the views of Dr. Chiasson as a pure 4 peer when it came to the subject of pediatric forensic 5 pathology? 6 DR. CHARLES SMITH: No, I'm not -- I'm 7 not certain that that's -- well, I shouldn't say I'm not 8 certain that's what it's stating; I'm not -- I'm not 9 certain that that's the interpretation. 10 And there has been a passage of time here. 11 I was aware by this time that -- that David -- that Dr. 12 Chiasson had -- had some concerns about his confidence in 13 pediatric pathology, because we had talked about it. 14 But I certainly -- I always respected his 15 -- his abilities in pediatric pathology. And -- and I 16 may have had greater confidence in his abilities than -- 17 than he communicated to me. 18 I -- I did -- I certainly did respect his 19 work in the -- in the adult environment, because that's 20 what he had been doing for many years, and I was able to 21 view his work in the adult environment. 22 Yes, it had been, at that point, fifteen 23 (15) years perhaps since he had -- had been active -- 24 maybe, yeah, perhaps fifteen (15) years -- maybe not 25 quite that many -- that he had been active at the

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1 Hospital for Sick Children. But I always -- I always 2 held his -- his opinions in high regard. 3 MS. LINDA ROTHSTEIN: Apart from Dr. 4 Chiasson, are we agreed that there were no forensically 5 trained pathologists at the Hospital for Sick Children 6 prior to the time that Dr. Chiasson himself left the OCCO 7 and began working at Hospital for Sick Children, which, 8 if I'm correct, was in August 2001 on a part-time basis, 9 full-time in 2004? 10 DR. CHARLES SMITH: Yes, that -- that's 11 correct. 12 MS. LINDA ROTHSTEIN: None of Doctors 13 Taylor, Cutz, Phillips or Thorner were really in a 14 position to critically review your work in criminally 15 suspicious cases. 16 Isn't that true? 17 DR. CHARLES SMITH: None of us had 18 forensic training, no, at -- at any time that I was 19 there. And to the best of my knowledge, no, and at any 20 time in the years previous. 21 MS. LINDA ROTHSTEIN: But, for the 22 moment, do you agree, Dr. Smith, that whatever the gaps 23 were in your training -- 24 DR. CHARLES SMITH: Mm-hm. 25 MS. LINDA ROTHSTEIN: -- Doctors Taylor,

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1 Cutz, Phillips, and Thorner had even less day-to-day 2 experience and on-the-job training, if you will, than you 3 did in forensic cases? 4 DR. CHARLES SMITH: That's correct. 5 MS. LINDA ROTHSTEIN: Can we safely 6 conclude that one of the systemic weaknesses during your 7 entire tenure as Director of the OPFPU is that you were 8 not subject to meaningful and effective peer review? 9 10 (BRIEF PAUSE) 11 12 DR. CHARLES SMITH: Retrospectively, I 13 agree with that statement. 14 MS. LINDA ROTHSTEIN: Isn't that an 15 unusual result in a quaternary or tertiary teaching 16 hospital like the Hospital for Sick Children? 17 Isn't peer review one of the things that 18 goes hand-in-hand with every position and environment in 19 that institution? 20 DR. CHARLES SMITH: Yes, absolutely. 21 MS. LINDA ROTHSTEIN: Were you conscious 22 of that systemic failing at the time? 23 DR. CHARLES SMITH: No, because I -- I 24 didn't perceive that the forensic side was a -- a 25 significant omission or -- or absence. Omission sounds -

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1 - is too strong, I'm sorry. It was a significant 2 absence. 3 I continued and -- and had always come at 4 it from the viewpoint of a pediatric pathologist. And in 5 that environment I was working with pediatric 6 pathologists who had extraordinary diagnostic acumen and 7 experience. 8 Each one of us had a greater degree of 9 skill or excellence in any one (1) area. So mine was -- 10 was forensics. Someone else would do kidney biopsies. 11 Someone else would do lung biopsies. So we all had areas 12 where we might be within that group of people at the top 13 of the heap. 14 Yet we always, even if we were at the top 15 of the heap -- to use that expression -- would consult 16 with colleagues and -- and use the peer-review process. 17 So on one hand, it seems like there was 18 none, but on the other hand, because we relied on each 19 other, each one (1) of us in any discipline, might have 20 more expertise than the others, but that did not suggest 21 for a moment that we minimized or downplayed that 22 expertise, but we still used it as a way of -- of 23 checking our work. 24 MS. LINDA ROTHSTEIN: Are you saying you 25 weren't conscious of any difference between how your

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1 forensic pathology cases and your surgical pathology 2 cases were dealt with? 3 DR. CHARLES SMITH: At the diagnostic 4 level, I certainly recognized that, you know, forensic 5 autopsies are different than hospital autopsies -- 6 MS. LINDA ROTHSTEIN: Mm-hm. 7 DR. CHARLES SMITH: -- but at the end of 8 the day, the -- the most important thing was diagnostic 9 accuracy, or -- or the -- the first -- the issue of 10 greatest importance was diagnosis accuracy. 11 And an added -- that is unrelated to 12 whether it's a surgical or aut -- you know, hospital or 13 coroners autopsy. 14 There are discipline specific differences, 15 and they occur not just with forensic pathology but with 16 other issues as well. 17 So the -- the -- while forensic pathology, 18 or the coroner's autopsies or whichever term we would 19 want to use, had specific demands, so did the 20 interpretation of biopsies on transplanted organs. 21 So everything had its own unique 22 characteristics, and -- and I recognized some with the 23 coroner's cases. But I also would have told you that 24 when I dealt with a biopsy on a kidney transplant, it -- 25 it, likewise, had some very unique aspects to it which

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1 might not be found in -- in other aspects of pathology. 2 MS. LINDA ROTHSTEIN: But you didn't 3 perceive, at the time, that there was anything different 4 about the nature and quality of the peer review that was 5 attendant on your forensic cases as opposed to your 6 surgical ones. 7 Is that right? 8 DR. CHARLES SMITH: At that time, no, I 9 didn't perceive that. 10 MS. LINDA ROTHSTEIN: So if we accept for 11 the moment, Dr. Smith, that neither Dr. Cairns nor Dr. 12 Young were peers in the true sense, I want to explore 13 with you how you did see their respective roles, starting 14 with Dr. Cairns. 15 Did you see him as a supervisor? 16 17 (BRIEF PAUSE) 18 19 DR. CHARLES SMITH: At times, and in 20 certain circumstances I did, yes. 21 MS. LINDA ROTHSTEIN: At what times and 22 in what circumstances? 23 DR. CHARLES SMITH: In the -- the 24 handling of some cases that -- that would have required 25 involvement by the OCCO, I -- I certainly did, because he

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1 was my -- generally, my contact person there. 2 MS. LINDA ROTHSTEIN: So, for example, 3 when he would call you about the timeliness of one (1) of 4 your reports, you would see him as performing the role of 5 supervisor and following up with you about that issue. 6 Is that an example? 7 DR. CHARLES SMITH: Yeah. That -- that 8 could serve as an example, yes. 9 MS. LINDA ROTHSTEIN: Can you give us 10 some others? 11 12 (BRIEF PAUSE) 13 14 DR. CHARLES SMITH: Arranging for and 15 participating in meetings where there would be 16 discussions between the -- the coroner's office as -- as 17 its role in investigating a case with me as a 18 pathologist, perhaps with other -- with other experts, 19 and with representatives from a -- a police service who 20 served as an investigator. 21 And so, in that, he was the -- the 22 supervisor of that process. 23 MS. LINDA ROTHSTEIN: So, for example, 24 when concerns were first -- when concerns first arose 25 about the diagnosis that you'd given in Sharon's case,

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1 and Dr. Cairns became involved in soliciting first an 2 exhumation, and then subsequent opinions, you would see 3 him as performing, at least in part, a supervisory role 4 in that process? 5 Is that fair? 6 DR. CHARLES SMITH: I believe so, yes. 7 MS. LINDA ROTHSTEIN: Was Dr. Cairns 8 someone who shared your views about the problems 9 attendant upon the under-reporting and under-detection of 10 child abuse? 11 DR. CHARLES SMITH: I believe that he, 12 early on in his time in the Office of the Chief Coroner, 13 saw failures, at least in the Coroner's System, that 14 would have allowed that to happen, yes. 15 MS. LINDA ROTHSTEIN: Did you view him as 16 a supporter and an ally when you were criticized? 17 DR. CHARLES SMITH: Yes, in the Office of 18 the Chief Coroner he was -- he was the person with -- 19 with whom, in that situation, I would -- would be most 20 likely to communicate because I recognized that -- that 21 he, perhaps, knew my work or knew my activities better 22 than anyone else. 23 MS. LINDA ROTHSTEIN: Dr. Young -- 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: -- did you see him

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1 as an ally? 2 3 (BRIEF PAUSE) 4 5 DR. CHARLES SMITH: For many, many years 6 I did. Only at the very end, did I appreciate the -- the 7 difficult role that -- that he was in, and so, in the 8 latter part of my time, I would not have necessarily 9 described him as an ally. I wouldn't suggest, though, 10 that he was an adversary. 11 He was simply not the person who -- who I 12 spoke to when there were problems. I went to Dr. Cairns 13 first because he had a greater knowledge and 14 understanding of my work and -- and my view was he had a 15 greater knowledge and understanding of -- of issues that 16 would be more at the periphery of -- of my work. 17 MS. LINDA ROTHSTEIN: So what was Dr. 18 Young's level of interest in the issue of child abuse and 19 pediatric sudden deaths, would you say? 20 DR. CHARLES SMITH: He was interested in 21 -- in that and certainly supported, back in the late 22 1980's, the concept of a Paediatric Death Review 23 Committee. He was the -- the person who Dr. Phillips and 24 I met with when we were first discussing some of the 25 economic realities that we were facing at the Hospital

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1 for Sick Children in the Pathology Department. 2 And Dr. Phillips had proposed to -- 3 essentially to Dr. Bennett, but -- but that meeting was 4 held with Dr. Young; the -- the possibilities for 5 something better, and Dr. Young was very supportive of 6 that, and so I saw him as recognizing needs and 7 possibilities. 8 He did not have his fingers in individual 9 cases anywhere near as much as Dr. -- as Dr. Cairns did, 10 and -- and of course, Dr. Cairns' role on the Paediatric 11 Death Review Committee is part of doing things like, you 12 know, authoring a protocol and dealing with Children's 13 Aid Society issues and many other things which -- where 14 were Dr. Cairns' responsibility and not Dr. Young's 15 responsibility. 16 And I say all of that to indicate that Dr. 17 Young, in my experience, did not have the -- the 18 involvement with those issues but, nevertheless, was 19 supportive of them. 20 MS. LINDA ROTHSTEIN: And did you see 21 yourself as accountable to Dr. Young? 22 23 (BRIEF PAUSE) 24 25 DR. CHARLES SMITH: I -- I did, based on

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1 the -- based on the -- sort of the overall organizational 2 chart. I saw that I was really accountable to -- 3 essentially, to two (2) people over there; the Chief 4 Forensic Pathologist as regards to the professional 5 aspects of pathology and also to the Office of the Chief 6 Coroner, vis-a-vis anything that was going on that 7 related to the -- the Forensic Pathology Unit, the 8 programs, and -- and that sort of thing. 9 And within that, my sense of -- of 10 accountability to Dr. Young varied according to the 11 situation and things like the presence of Dr. Cairns and 12 -- and exactly what the issue was and whether it was one 13 coming from me or coming from the top. 14 So the accountability was always there. 15 It varied in its -- in its expression on a -- on a 16 situation-by-situation basis. 17 MS. LINDA ROTHSTEIN: How did it play 18 out? 19 DR. CHARLES SMITH: I'm sorry -- 20 MS. LINDA ROTHSTEIN: On a week-to-week 21 basis? How did he perform his oversight role? 22 DR. CHARLES SMITH: I think he's probably 23 in the -- the better position to answer how he played his 24 role in that. 25 MS. LINDA ROTHSTEIN: What did you see

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1 him doing that you believed was his performance of that 2 role? 3 DR. CHARLES SMITH: I didn't -- I didn't 4 see a lot of what he did, because our interactions were - 5 - were much less. What I saw was his involvement in -- 6 in a situation-by-situation basis. And of course there, 7 there would be direct communication. Or I would 8 understand from someone like Dr. Cairns or Dr. -- a 9 regional coroner, maybe Dr. Porter, whatever, what -- 10 what Dr. Young's actions or views or recommendations were 11 in any given situation. 12 We -- we did not have anywhere near the -- 13 the communication that I did with others. 14 MS. LINDA ROTHSTEIN: What about the XXXX 15 case, Dr. Smith? How did Dr. Young exercise his 16 oversight role in relation to that case, as far you were 17 concerned? 18 DR. CHARLES SMITH: In the beginning, my 19 involvement in that was almost completely focussed with - 20 - with Dr. Cairns. It was later, with the recognition 21 that there were serious issues because of -- of my -- my 22 error, that Dr. Young became involved. And so there, 23 that switched from an involvement with Dr. Cairns to -- 24 to Dr. Young, and I -- and I answered to Dr. Young in 25 those areas.

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1 And -- and in that case it wasn't just the 2 policies and procedures and the peripheral issues, but 3 there as well it dealt with things like the -- the 4 opinion from Dr. Mary Case -- 5 MS. LINDA ROTHSTEIN: Mm-hm. 6 DR. CHARLES SMITH: -- and so there I 7 felt that I was answerable to Dr. Young and directly to 8 Dr. Young, not through an intermediary. 9 MS. LINDA ROTHSTEIN: And what do you 10 remember about how Dr. Young communicated with you about 11 those issues? 12 DR. CHARLES SMITH: He communicated very 13 clearly, in a very forthright manner. 14 MS. LINDA ROTHSTEIN: Criticism of you? 15 DR. CHARLES SMITH: Yes. Yes. 16 MS. LINDA ROTHSTEIN: Did you feel fairly 17 dealt with? 18 19 (BRIEF PAUSE) 20 21 DR. CHARLES SMITH: In general, yes, yes. 22 For the -- for the -- the critical issues at hand, I did. 23 He and I could have disagreed on some things, but -- but 24 he was -- he was very thorough and very direct. And he 25 was obviously coming from a position which was much more

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1 independent than mine. 2 And at that point in time, I was so close 3 to the matter that -- that I had lost perspective; though 4 I'm not sure at that point in time I would have 5 recognised that. But certainly retrospectively I 6 recognise that -- that I was so close that -- that I -- I 7 needed someone who was more impartial and had a better 8 understanding of all of the issues as opposed to those 9 which were limited to -- to my own involvement. 10 MS. LINDA ROTHSTEIN: I just want to make 11 sure I understand what you've just told us. Are you 12 telling us that, prior to meeting with Dr. Young and 13 walking through the issues that had arisen in that case, 14 you had lost perspective? 15 DR. CHARLES SMITH: By the time -- by the 16 time, I was discussing the issues with Dr. Young, and it 17 was clear that my -- my approach to the case was wrong, 18 and though -- though Dr. Young was -- acknowledged that 19 my opinion fell within the spectrum of reasonable, that - 20 - that it was towards the -- the edge of that spectrum, 21 at that point in time I -- I think I had lost 22 perspective. 23 MS. LINDA ROTHSTEIN: Okay. So, was Dr. 24 Young's discussions with you -- did Dr. Young's 25 discussions with you bring home to you those points and

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1 give you reason to rethink your approach to future cases? 2 DR. CHARLES SMITH: He -- he certainly 3 gave me very strong instruction on -- on paying careful 4 attention to making sure that when I made a diagnosis, it 5 was in the mainstream of opinion and not at the 6 periphery. 7 MS. LINDA ROTHSTEIN: And the pitfalls 8 memo, the 1999 Forensic Pathology Pitfalls memo that was 9 authored by Dr. Chiasson, we've heard from Dr. Chiasson 10 and Dr. Young that that was really written in response to 11 the lessons that had been learned from the XXXX case. 12 Did you appreciate that, Dr. Smith? 13 DR. CHARLES SMITH: Yes, I -- I certainly 14 understood that -- that memo in part, if not 15 substantially, was -- was based on that. I couldn't 16 speak to all of their basis for the recommendations, but 17 I -- I understood that part of it was based on that, at 18 least. 19 MS. LINDA ROTHSTEIN: So, what, if any, 20 changes did you implement to our approach or your 21 practices following those discussions and the release of 22 the Pitfalls in Forensic Pathology memo? 23 24 (BRIEF PAUSE) 25

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1 DR. CHARLES SMITH: I -- I'm having 2 trouble remembering anything specifically. I -- I don't 3 know if it would help for me even to reread that because 4 at this point in time I -- I'm not sure -- 5 MS. LINDA ROTHSTEIN: Fair enough. 6 DR. CHARLES SMITH: I -- I'm not sure -- 7 MS. LINDA ROTHSTEIN: Fair enough. 8 DR. CHARLES SMITH: -- I can recall 9 anything -- 10 MS. LINDA ROTHSTEIN: We'll come back to 11 it. 12 DR. CHARLES SMITH: -- specific. 13 MS. LINDA ROTHSTEIN: We'll come back to 14 it. Do you recall asking Dr. Young to obtain government 15 funding with respect to your lawsuit against the Fifth 16 Estate? 17 DR. CHARLES SMITH: I -- I don't know if 18 I asked him or he offered it, but -- but yes, that 19 conversation did occur. 20 MS. LINDA ROTHSTEIN: Why did you feel 21 that your lawsuit was appropriate for the Government of 22 Ontario to fund? 23 DR. CHARLES SMITH: The -- the issue of 24 the lawsuit was one (1) which I had described with Dr. 25 Young and -- or I had discussed, I'm sorry, with Dr.

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1 Young. And it was as a result of those discussions that 2 -- that Dr. Young had given me his advice on what -- what 3 he thought would be reasonable for me, and as part of 4 those discussions, indicated that -- that, as best I 5 recall, that in his role, either as Chief Coroner or as 6 Assistant Deputy Minister, that -- that he could seek 7 financial support for a lawsuit. 8 MS. LINDA ROTHSTEIN: But, Dr. Smith, 9 didn't the Fifth Estate raise the very issues with 10 respect to Nicholas' case and Amber's case that you've 11 now acknowledged in your written evidence; the same 12 issues that you've acknowledged manifested errors by you? 13 DR. CHARLES SMITH: The -- the Fifth 14 Estate did point to issues, but at the same time, I think 15 that I minimized or rationalized some of those issues or 16 errors by things like the fact that I was supported by 17 opinions of others, which came -- which -- which lay 18 similar to mine or supported mine. 19 And so the -- and so as I explained 20 yesterday, I -- I think I minimized them and -- and 21 reacted to them as -- to make them go away, as opposed to 22 try to dissect through and -- and determine the truth or 23 the kernel of the issues. 24 MS. LINDA ROTHSTEIN: Would it be fair to 25 say you were trying to fend off any criticism of you to

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1 the extent you could? 2 DR. CHARLES SMITH: Yes. Absolutely. 3 Yes. Yes. That was part of the discussion that had gone 4 on with Dr. Young as well. 5 MS. LINDA ROTHSTEIN: Dr. Smith, when Dr. 6 Cairns was interviewed by Victor Malarek on "The Fifth 7 Estate" program, he was asked about the Dunn case. And I 8 can take you to the transcript. I don't suspect you'll 9 want me to. 10 But he's pretty clear that he says that 11 the medical evidence was confusing, and the judge may not 12 have clearly understood all the evidence. He told us 13 he'd never read the decision. And he told us that he 14 knows he ought to have, but he was relying on information 15 from you about how much the judge had misunderstood 16 because of your conversations with him, your alleged 17 conversations with Justice Dunn. 18 Does it ring any bells that you told Dr. 19 Cairns about Justice Dunn in a way that led him to 20 completely minimize the importance of that decision? 21 DR. CHARLES SMITH: I -- I certainly 22 don't recall that conversation; rather, it was my 23 understanding all through the process, even -- even 24 before the trial began, that the Office of the Chief 25 Coroner -- or at least Dr. Young, at that time --

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1 believed that the case was one of non-accidental head 2 injury. 3 And, so it was always my understanding 4 that -- that the view of Dr. Young and Dr. Cairns was 5 based upon that more historic perspective that anti-dated 6 the trial, but that related to the -- to the time of the 7 death and the exhumation. 8 MS. LINDA ROTHSTEIN: And back to the 9 response that you made to the CPSO complaint from the 10 father of SM. 11 You've told us all ready that you didn't 12 feel the College should be dealing with that issue and 13 that you actively engaged Dr. Young on that issue. 14 Did you continue to engage him as the 15 complaints continued to be made? There were some others, 16 as you know. 17 18 (BRIEF PAUSE) 19 20 DR. CHARLES SMITH: Well, the -- that -- 21 that was 1992. 22 MS. LINDA ROTHSTEIN: Mm-hm. 23 DR. CHARLES SMITH: The next -- and -- 24 and the issue was somehow set aside, ignored, or as I 25 understood, resolved, but -- but obviously not -- not

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1 resolved. 2 And, so the next -- the next time the 3 issue came along was many years later. And -- and I'm 4 not sure just what year it was, but it was some years 5 later the next complaint came in. 6 I did -- I did discuss that with Dr. Young 7 at that time. Much had changed in the -- in the coroners 8 system. And I believe at that time the Commission -- the 9 -- the Coroners' Commission, Coroners' Council, something 10 like that, that process was either under review or was 11 being discontinued. 12 So it was my understanding that -- that 13 Dr. Young did not have that alternate pathway, yet, 14 nevertheless, felt that this was still not necessary -- 15 necessarily the -- the bailiwick of the Ontario College. 16 I did not have great discussions with him. 17 I -- it's my understanding that -- that his counsel at 18 some point in time discussed the issue with my counsel. 19 But -- but apart from that discussion with Dr. Young in 20 which I have explained my understanding. I did not have 21 a great deal of -- well, I shouldn't say I didn't have a 22 great deal. I don't recall any -- any more conversations 23 with him, though it is possible we had others. 24 MS. LINDA ROTHSTEIN: At any point did 25 you say to Dr. Young that you would consider withdrawing

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1 your services to the OCCO if the CPSO were to take 2 jurisdiction? 3 DR. CHARLES SMITH: I -- I don't remember 4 that, no. No. 5 MS. LINDA ROTHSTEIN: It was never as 6 stark as that? 7 DR. CHARLES SMITH: No, I can't -- I 8 can't remember that issue at all. 9 MS. LINDA ROTHSTEIN: All right. If you 10 would have in front of you both Volume I and Volume II. 11 12 (BRIEF PAUSE) 13 14 MS. LINDA ROTHSTEIN: I have some 15 questions for you, Dr. Smith, about Jenna's case. 16 DR. CHARLES SMITH: Yes. 17 MS. LINDA ROTHSTEIN: Can you tell us 18 when it was that you first tried to reconstruct the 19 events of the post-mortem that took place on January the 20 22nd, 1997, which you conducted? 21 DR. CHARLES SMITH: I'm -- I don't think 22 I understood your question. 23 MS. LINDA ROTHSTEIN: It's ten (10) years 24 ago that you did that post-mortem? 25 DR. CHARLES SMITH: Yes.

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1 MS. LINDA ROTHSTEIN: Approximately. 2 When was it that you first tried to reconstruct the 3 events of that post-mortem? 4 DR. CHARLES SMITH: I'm still not certain 5 I understand your -- in reconstructing the events of it. 6 MS. LINDA ROTHSTEIN: What happened? 7 What happened with the hair or the fibre? 8 DR. CHARLES SMITH: Oh. 9 MS. LINDA ROTHSTEIN: Who did what? 10 Those -- those events that became so contentious. 11 Do you remember when it was you first 12 tried to reconstruct those events? 13 DR. CHARLES SMITH: With -- without 14 looking at all of the documentation, I'm not -- at this 15 point in time -- 16 MS. LINDA ROTHSTEIN: It's impossible? 17 DR. CHARLES SMITH: Yeah. I -- I can't 18 remember, no. 19 MS. LINDA ROTHSTEIN: And that's because 20 you've had to reconstruct those events many times. 21 Is that fair? 22 DR. CHARLES SMITH: Yes. Yeah. Yeah, 23 the conversations have occurred with different people at 24 different times. And I'm -- and I could not give you a 25 framework within a calendar or other events to help

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1 understand that. 2 MS. LINDA ROTHSTEIN: All right. Can you 3 look at Volume II -- 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: -- Tab 27. 6 7 (BRIEF PAUSE) 8 9 DR. CHARLES SMITH: Yes. 10 MS. LINDA ROTHSTEIN: This is the 11 Peterborough Civic Hospital emergency form -- it's 12 PFP169938 -- filled out by the emergency physician. 13 Am I right? 14 DR. CHARLES SMITH: Yes. That's -- 15 that's how I would interpret it, yes. 16 MS. LINDA ROTHSTEIN: That's Dr. 17 Friesen's note? 18 DR. CHARLES SMITH: Yes. It's Dr. 19 Friesen and Dr. Thompson, the coroner, yes. 20 MS. LINDA ROTHSTEIN: Right. And then 21 there are nursing notes as well that are part of this? 22 DR. CHARLES SMITH: The -- 23 MS. LINDA ROTHSTEIN: The following 24 pages. 25 DR. CHARLES SMITH: -- the resuscitation

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1 record, as it were? 2 MS. LINDA ROTHSTEIN: Yes. 3 DR. CHARLES SMITH: Yes, I see those. 4 Yes. 5 MS. LINDA ROTHSTEIN: And the nursing 6 notes at 169938? 7 DR. CHARLES SMITH: Slash five (/5)? Is 8 that what you're referring to? 9 MS. LINDA ROTHSTEIN: That's correct. 10 Yes. 11 DR. CHARLES SMITH: I see some nursing 12 notes here, yes. 13 MS. LINDA ROTHSTEIN: Followed by the EKG 14 strips at 169938/7? 15 DR. CHARLES SMITH: Yes, I see that. 16 MS. LINDA ROTHSTEIN: All right. Am I 17 correct, Dr. Smith, that at the autopsy you were given 18 this portion of the hospital record? 19 DR. CHARLES SMITH: I -- I can't -- I 20 can't recall. 21 MS. LINDA ROTHSTEIN: Okay. There's a 22 note that you say in April 2002, in response to the CPSO, 23 that you had a photocopy of the emergency room record, 24 the EKG strips, and the nursing notes. 25 Would your recollection have been better

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1 in April 2002? 2 DR. CHARLES SMITH: It should have been, 3 yes. Yeah. I -- 4 MS. LINDA ROTHSTEIN: So is that 5 reasonably -- 6 DR. CHARLES SMITH: Mm-hm. 7 MS. LINDA ROTHSTEIN: -- reliable, that -- 8 DR. CHARLES SMITH: Mm-hm. 9 MS. LINDA ROTHSTEIN: -- recollection 10 that you said in writing to the CPSO at that time? 11 DR. CHARLES SMITH: To -- to the best of 12 my recollection, yes. I -- I can't -- I can't remember 13 that at -- I don't know if I -- no, I -- I can't 14 speculate. I -- I simply don't remember, I'm sorry. 15 MS. LINDA ROTHSTEIN: But if you did 16 have -- 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: -- these records, 19 it would have been your practice to read them? 20 DR. CHARLES SMITH: Yes. Yes. 21 MS. LINDA ROTHSTEIN: And I take it 22 today, Doctor, you don't have any recollection of not 23 having them. 24 DR. CHARLES SMITH: I -- I can't comment 25 either way, no.

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1 MS. LINDA ROTHSTEIN: All right. Fair to 2 say, then, that your recollection of these events is 3 weak? 4 DR. CHARLES SMITH: Yes. Yes, at least - 5 - at least, as it relates to this. I don't have -- I 6 don't have a clear recollection. 7 MS. LINDA ROTHSTEIN: If we look at this 8 note at 169938 from Dr. Friesen, it records in the 9 middle: 10 "Curly hair found in vulval area -- 11 vulva area, question mark, source." 12 Do you see that? And then it says: 13 "CPR continued." 14 DR. CHARLES SMITH: Yes, I see that. 15 Yes. 16 MS. LINDA ROTHSTEIN: Fair to read that 17 on the basis that Dr. Friesen had not come to a 18 conclusion as to what that hair was, or whose it was, or 19 where it had come from? 20 DR. CHARLES SMITH: Yes, I think that's 21 reasonable. Yes. 22 MS. LINDA ROTHSTEIN: Nothing in the note 23 that would allow a forensic pathologist to safely 24 conclude when it got there, how it got there, who it came 25 from --

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1 DR. CHARLES SMITH: No. 2 MS. LINDA ROTHSTEIN: -- all true? 3 DR. CHARLES SMITH: No. 4 MS. LINDA ROTHSTEIN: Is that all true, 5 Dr. Smith? 6 DR. CHARLES SMITH: I -- I agree with 7 that, yes. 8 MS. LINDA ROTHSTEIN: I understood you to 9 tell your counsel yesterday that, nevertheless, you 10 concluded it was a contaminant. 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: And you concluded 13 that at that post-mortem. 14 DR. CHARLES SMITH: That was my view, 15 yes. 16 MS. LINDA ROTHSTEIN: But you do have a 17 clear recollection of that? 18 DR. CHARLES SMITH: Yes. Yes. Yeah. 19 MS. LINDA ROTHSTEIN: Why? 20 DR. CHARLES SMITH: Why did I think it 21 was a contaminant? Because of its appearance and 22 location. Hairs are a contaminant. They occur from time 23 to time, and that was one (1) which -- which caused me no 24 concern. 25 MS. LINDA ROTHSTEIN: Hairs are a

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1 contaminant, it's true, but -- 2 DR. CHARLES SMITH: Mm-hm. 3 MS. LINDA ROTHSTEIN: -- in this case you 4 knew there were two (2) potential suspects, did you not, 5 Dr. Smith; one (1) was the mother? 6 DR. CHARLES SMITH: Well, the -- the 7 hair -- 8 MS. LINDA ROTHSTEIN: Can we go through 9 this step by step -- 10 DR. CHARLES SMITH: Yeah, okay. 11 MS. LINDA ROTHSTEIN: -- if you will? 12 DR. CHARLES SMITH: Yeah. 13 MS. LINDA ROTHSTEIN: One (1) was the 14 mother. 15 DR. CHARLES SMITH: I understood -- or at 16 the time, I would have seen the hair I would have not 17 have had the, you know, the autopsy findings themselves, 18 but -- but certainly, I knew that there was an issue as 19 to something happened. This child had been, at least, 20 injured, and there were -- there was, the mother had been 21 in the home and then the babysitter and the babysitter's 22 mother in -- in the home. 23 MS. LINDA ROTHSTEIN: Okay, let -- let's 24 just stop for a moment, if we can, Dr. Smith. 25 DR. CHARLES SMITH: Mm-hm.

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1 MS. LINDA ROTHSTEIN: You wouldn't of had 2 the autopsy findings; that's a little bit confusing -- 3 DR. CHARLES SMITH: Yeah. 4 MS. LINDA ROTHSTEIN: -- because you were 5 responsible for the -- 6 DR. CHARLES SMITH: Yes, yes. 7 MS. LINDA ROTHSTEIN: -- autopsy 8 findings. 9 DR. CHARLES SMITH: No, but when I'm -- 10 when I'm dealing with the hair -- 11 MS. LINDA ROTHSTEIN: Mm-hm. 12 DR. CHARLES SMITH: -- that would have 13 been prior to that -- 14 MS. LINDA ROTHSTEIN: Absolutely. 15 DR. CHARLES SMITH: -- but that was my 16 interpretation, you know, in and of itself at that -- at 17 that time -- 18 MS. LINDA ROTHSTEIN: Right. 19 DR. CHARLES SMITH: -- and certainly by 20 the end of the autopsy, there would have been nothing -- 21 no other additional findings that would have given me 22 reason to believe there was -- there was sexual 23 interference or anything. 24 MS. LINDA ROTHSTEIN: With the greatest 25 respect, Dr. Smith, you're getting way away from us --

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1 DR. CHARLES SMITH: Okay. 2 MS. LINDA ROTHSTEIN: -- and I really do 3 want to proceed with this, if we can, piece by piece. 4 DR. CHARLES SMITH: All right. 5 MS. LINDA ROTHSTEIN: I appreciate it's 6 difficult. If you think my question is unfair and needs 7 clarification, please let me know. 8 DR. CHARLES SMITH: I'm sorry. 9 MS. LINDA ROTHSTEIN: All right. But 10 you're at the start of the autopsy. 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: You're doing the 13 external examination. 14 DR. CHARLES SMITH: Yes. 15 MS. LINDA ROTHSTEIN: There is a hair on 16 the vulva of this young child. 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: She is female. 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: She has been in the 21 company of both during the period of time in which her 22 injuries may have occurred. 23 DR. CHARLES SMITH: Yes. 24 MS. LINDA ROTHSTEIN: A male babysitter. 25 DR. CHARLES SMITH: Yes.

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1 MS. LINDA ROTHSTEIN: And her mother. 2 DR. CHARLES SMITH: Yes. 3 MS. LINDA ROTHSTEIN: And if indeed, this 4 hair belongs to, can be proven to belong to the 5 babysitter, whatever -- from wherever it came from on his 6 body, it is of relevance to the forensic investigation, 7 do you not agree? 8 DR. CHARLES SMITH: I -- I would agree 9 now; that I don't think I would have had that insight at 10 that time necessarily. 11 MS. LINDA ROTHSTEIN: Why is that, Dr. 12 Smith? 13 DR. CHARLES SMITH: Because anyone who's 14 a caregiver can leave a hair behind to start with, but 15 secondly, its location was such that I believed it would 16 have occurred during or after resuscitation, as opposed 17 to have been there prior to disrobing and resuscitation. 18 MS. LINDA ROTHSTEIN: How could you 19 possibly come to a conclusion like that when you're 20 simply looking and conducting the external examination of 21 this young child, Dr. Smith? 22 DR. CHARLES SMITH: How? 23 MS. LINDA ROTHSTEIN: How? 24 DR. CHARLES SMITH: Just based on looking 25 at it and trying to interpret its -- its origin, or

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1 importance. Yes. That's -- it's -- it's not -- that's 2 not necessarily forensic pathology. 3 That, to me, would just be -- would just 4 be based on, sort of, on basic knowledge or -- or an 5 assumption of -- or an understanding, I should say, of 6 the nature of resuscitation. 7 MS. LINDA ROTHSTEIN: But, Dr. Smith, you 8 didn't know who's hair this was. If it was indeed the 9 babysitter's hair, then resuscitation was irrelevant, 10 sir. 11 DR. CHARLES SMITH: That's not -- that's 12 not the reasoning that -- that I was using, I don't 13 believe. No. 14 For me the issue is, is it something very 15 specific, or is it non-specific? And based on what I 16 understood and based on what I saw, those two (2) -- 17 those two (2) different things led me to the belief that 18 it was not relevant or not important or was a 19 contaminant. 20 MS. LINDA ROTHSTEIN: That's a very, very 21 troubling conclusion, is it not? 22 DR. CHARLES SMITH: Well, I believed it 23 was the correct conclusion at the time. I recognize now 24 that -- that I should have documented it. And I should 25 have either submitted it or made sure that investigators

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1 knew about it and could have considered the issue of 2 submission, yes. 3 That was -- that was a mistake, and I 4 acknowledge that mistake. 5 MS. LINDA ROTHSTEIN: Dr. Smith, none of 6 the hospital records support the conclusion that this was 7 easily dismissed as a contaminant and nothing more, do 8 they? 9 DR. CHARLES SMITH: I -- at this point in 10 time, I can't remember this information. And so what I 11 recall was the two (2) lines of reasoning which I used, 12 which was the police knew about it and didn't want it; 13 and -- and my own line of reasoning, which is it doesn't 14 appear to be of any relevance. It appears to be a 15 contaminant. 16 MS. LINDA ROTHSTEIN: Dr. Smith, the 17 police -- 18 DR. CHARLES SMITH: Yes. 19 MS. LINDA ROTHSTEIN: -- who were the 20 police that knew about it and didn't appear to be 21 concerned by it? 22 DR. CHARLES SMITH: Well, as I said, I -- 23 I thought it was Constable Kirkland, but -- but I realize 24 that it may not have been. It may have been other 25 communication that was given to me.

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1 MS. LINDA ROTHSTEIN: And you realize 2 that it may not have been Constable Kirkland because 3 you're aware that he testified here last week and said it 4 would have been against all of his training and ethics 5 and common sense to come to a conclusion like that at 6 such an initial stage? 7 DR. CHARLES SMITH: No, I -- I didn't 8 hear his evidence at all, no. 9 MS. LINDA ROTHSTEIN: So why have you 10 reconsidered your earlier -- in your CPSO response -- I 11 can take you to it, sir -- 12 DR. CHARLES SMITH: No, I -- I -- 13 MS. LINDA ROTHSTEIN: -- identification 14 of him? 15 DR. CHARLES SMITH: Mm-hm. As I was -- 16 because at that point in time, that was my best 17 recollection. And -- and I acknowledge that there should 18 have been documentation, and there wasn't. 19 It was in -- not when Constable Kirkland 20 testified, but in fact when I was given and -- and read 21 some other documentation, that's when I realized that I - 22 - I likely had conversations with others that day besides 23 Constable Kirkland. 24 And so at that point, at, you know, some 25 weeks ago, is when I -- is when I began to rethink the

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1 certainty of my recollection. 2 MS. LINDA ROTHSTEIN: Do you remember 3 what that documentation was that you reviewed? 4 DR. CHARLES SMITH: It -- it was after 5 reading all of it that related to the police and 6 information related to the coroner or the regional 7 coroner. 8 And so with all of that, I began to 9 rethink that the -- because I can't remember any of those 10 conversations, but I -- I acknowledge that conversations 11 could have occurred. 12 And, so I -- I'm not saying that it was or 13 was not any one (1) person who gave it to me. But 14 certainly by the time that -- that I was confronted, you 15 know, with that issue that day, that was -- that was my 16 understanding. 17 MS. LINDA ROTHSTEIN: Do I hear you to 18 acknowledge, Dr. Smith, that you have no specific 19 independent recollection of any person involved in the 20 death investigation of this child having actually told 21 you that this hair should be treated as a contaminant, 22 but you believe, on reading all of the documentation, 23 that perhaps someone did? 24 DR. CHARLES SMITH: No, I always believed 25 that that was communicated to me. The issue for me is

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1 not whether it was communicated. It was the source of 2 the communication; whether it was communicated directly 3 by the police or -- or by an intermediary. 4 MS. LINDA ROTHSTEIN: And who might those 5 potential intermediaries be? 6 DR. CHARLES SMITH: Either another police 7 officer or the coroner or the Regional Coroner. Someone 8 else. 9 MS. LINDA ROTHSTEIN: But I take it, sir, 10 you have no specific independent recollection of any of 11 those people that you've identified and not named, having 12 actually told you that. 13 Is that fair? 14 DR. CHARLES SMITH: No, I -- I don't have 15 any specific recollection, no. 16 MS. LINDA ROTHSTEIN: So you agree with 17 my statement, sir, that you have no specific independent 18 recollection of any individual actually telling you that? 19 DR. CHARLES SMITH: Of any specific 20 individual. Yeah, with that proviso, that's correct. 21 MS. LINDA ROTHSTEIN: We know, Dr. Smith, 22 that you did not use a rape kit in this case. We'll -- 23 DR. CHARLES SMITH: Yes. 24 MS. LINDA ROTHSTEIN: -- come to the 25 reasons.

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1 DR. CHARLES SMITH: Yes. 2 MS. LINDA ROTHSTEIN: You didn't dissect 3 any of this child's genitalia or anus? 4 DR. CHARLES SMITH: I don't believe I 5 did, no. 6 MS. LINDA ROTHSTEIN: You didn't do any 7 histology of those areas? 8 DR. CHARLES SMITH: Without checking my 9 autopsy report, but I think that's correct. 10 MS. LINDA ROTHSTEIN: Do you now accept 11 that you ought to have done so? 12 DR. CHARLES SMITH: I think -- I think 13 that that -- that that question is better answered by 14 someone who would know the appropriate protocols for 15 that. 16 I would agree in principle but -- but in 17 the absence of external evidence of injury, I don't know 18 how one weights the other aspects of the decision-making 19 as part of -- as part of that. 20 So -- I'm not trying to be evasive. It's 21 that in the absence of clear physical evidence of injury, 22 I don't know how history or circumstances should be 23 interpreted. And so it would be better now for that to 24 be addressed by -- by someone other than me. 25 MS. LINDA ROTHSTEIN: We'll come to the

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1 history of injury in a moment, but do you, at least, 2 accept, Dr. Smith, that it's not an answer for the 3 pathologist conducting a forensic autopsy in these 4 circumstances to say, No one asked me to do those things? 5 DR. CHARLES SMITH: No one asked me 6 to...? 7 MS. LINDA ROTHSTEIN: To do a rape kit. 8 DR. CHARLES SMITH: Oh. 9 MS. LINDA ROTHSTEIN: Use a rape kit, 10 dissect the genitalia or anus. Do some histology. Do a 11 full consideration of whether this young child had been 12 sexually interfered with in any way. 13 DR. CHARLES SMITH: No, I -- I -- I am -- 14 I'm having trouble with your question here. Can you -- 15 either repeat it or maybe break it into pieces here, 16 because I'm -- I'm -- 17 MS. LINDA ROTHSTEIN: I'm suggesting to 18 you, sir, that the pathologist has to accept 19 responsibility for those decisions, and it isn't an 20 answer to say that no other member of the death 21 investigation team asked the pathologist to do that full 22 examination. 23 DR. CHARLES SMITH: Oh, I see what you're 24 saying, yeah. 25 The -- the taking of a rape kit or the

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1 dissection is -- is one (1) which would be the 2 pathologist's action; although the rape kit could be 3 taken by someone else if they -- if they chose. 4 The -- the decision by the pathologist, I 5 think, would be based on -- on one (1) or more lines of 6 reasoning. And depending on what those lines of 7 reasoning are then that would be reason -- then that 8 might -- might bring about it. So one (1), I believe, 9 would be, you know, communication of -- of clear 10 suspicion, and the second would be evidence of physical 11 injury even in the absence of such clear suspicion. 12 So -- so those are the suggestions that I 13 would make. The action would be by the pathologist but 14 the pathologist's action could be guided by others. 15 MS. LINDA ROTHSTEIN: Dr. Smith, do you 16 agree that it's not an answer to the failure to conduct a 17 full sexual abuse examination, to say, The police told me 18 there was no possibility of male interference? 19 DR. CHARLES SMITH: No, that would only 20 be one (1) part of the decision making. 21 MS. LINDA ROTHSTEIN: I'm suggesting to 22 you, sir, it ought not really to factor in, because it's 23 far too early in the investigation for the police's 24 information to be reliable. 25 DR. CHARLES SMITH: Yes, but that

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1 negative information wouldn't stop an -- specialized 2 procedures to be used, but in Jenna's case -- in the -- 3 in the absence of -- of a clear history, in the absence 4 of -- of physical findings -- I would not have gone ahead 5 with that. 6 MS. LINDA ROTHSTEIN: Dr. Smith, do you 7 agree that at this very early stage in the death 8 investigation of young Jenna, JD was still a suspect for 9 the police? 10 DR. CHARLES SMITH: That's my -- that was 11 my understanding, yes. 12 MS. LINDA ROTHSTEIN: And so if nothing 13 else, your job as a forensic pathologist was to attempt 14 to disprove any police theories, as much as it was to 15 prove them. 16 DR. CHARLES SMITH: The -- my job, as I 17 saw, was to provide the best information so that it would 18 be possible to interpret the clinical history or the 19 circumstances in light of what is known pathologically. 20 I'm -- I'm not sure that the -- that the 21 purpose of -- of an autopsy at -- at the outset is to 22 prove or disprove any police theory, but rather it's to 23 seek all relevant information and come to a reasonable 24 conclusion. 25 MS. LINDA ROTHSTEIN: And therefore, if

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1 one only looks for proof of a particular police theory, a 2 pathology will -- a pathologist will almost certainly 3 fall into error, agreed? 4 DR. CHARLES SMITH: If only looking for 5 proof of the theory, that would be a narrow approach to 6 the entire autopsy. 7 MS. LINDA ROTHSTEIN: Which you knew at 8 the time to be a wrong approach, correct? 9 DR. CHARLES SMITH: Yes, I believe I took 10 -- I believe in -- in trying to work through this, the 11 approach I took was -- was open. I believe the -- I 12 believe that by the time the external examination was 13 over, I was confident that there was no evidence of 14 sexual injury, and so that -- that was the tool which I 15 used as -- as my decision making. 16 MS. LINDA ROTHSTEIN: Dr. Smith, if we 17 look at your handwritten notes at Tab 36 of Volume I. 18 DR. CHARLES SMITH: Tab 36. 19 MS. LINDA ROTHSTEIN: And I can tell you 20 that there's a transcription of them that I gather you've 21 prepared, sir, at Volume III, Tab 26. The handwritten 22 notes are 011082. 23 DR. CHARLES SMITH: I -- I'm sorry, I -- 24 I missed this -- 25 MS. LINDA ROTHSTEIN: Do you want the

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1 transcription version or the handwritten, sir? 2 DR. CHARLES SMITH: The -- the 3 transcription may help -- may help me a little more. 4 MS. LINDA ROTHSTEIN: Volume III, Tab 26. 5 MR. MARK SANDLER: Volume II, Tab 26. 6 MS. LINDA ROTHSTEIN: Sorry? 7 COMMISSIONER STEPHEN GOUDGE: Volume II. 8 MS. LINDA ROTHSTEIN: Volume II, sorry. 9 DR. CHARLES SMITH: Oh, I'm sorry, that's 10 why I couldn't find it. 11 MS. LINDA ROTHSTEIN: Sorry. If you're 12 like me, Dr. Smith, you can't read your own handwriting, 13 so... No, I don't have it at Volume II, Tab 36, what am 14 I doing wrong? 15 MR. MARK SANDLER: 26 16 COMMISSIONER STEPHEN GOUDGE: 26. 17 MS. LINDA ROTHSTEIN: 26, thank you, 18 sorry. 19 COMMISSIONER STEPHEN GOUDGE: Tab 26, 20 Volume II. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: Okay. And it's 24 303644. 25 DR. CHARLES SMITH: Yes, I have these,

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1 yes. 2 MS. LINDA ROTHSTEIN: Do you agree, Dr. 3 Smith, that there's nothing in these notes that record 4 anything from the police about the possibility of male 5 interference, whether they're -- that was a possibility 6 or not, nothing that says that the police were satisfied 7 that there was no opportunity for male interference? 8 DR. CHARLES SMITH: No, there's no -- 9 from what I've written down from the conversations, no. 10 That's -- that's not there. No. 11 MS. LINDA ROTHSTEIN: And, Dr. Smith, do 12 you recall anything from all the notes that you reviewed 13 -- the police notes in particular -- that suggests that 14 the police had, indeed, reached that kind of conclusion 15 at such an early stage in their death investigation? 16 DR. CHARLES SMITH: I -- I don't 17 specifically recall that. What I recall was my 18 understanding of -- of that, in that related to the fact 19 that the -- the male babysitter was in a home with his 20 mother. 21 And, so that was -- as that information 22 was given to me, that was -- that was how I understood -- 23 understood it, or understood or -- or interpreted their 24 concerns or their levels of suspicion to be. 25 MS. LINDA ROTHSTEIN: Do you accept that

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1 there's nothing in writing to support your evidence on 2 that point? 3 DR. CHARLES SMITH: Yes, I -- yes, I -- 4 yeah. There's nothing directly in writing, no. I accept 5 that. 6 MS. LINDA ROTHSTEIN: Commissioner, would 7 this be an appropriate time for the lunch break? 8 COMMISSIONER STEPHEN GOUDGE: That is 9 convenient. We will rise then for an hour and fifteen 10 (15) minutes, until shortly after 2:00. 11 12 --- Upon recessing at 12:45 p.m. 13 --- Upon resuming at 2:00 p.m. 14 15 THE REGISTRAR: All rise. Please be 16 seated. 17 COMMISSIONER STEPHEN GOUDGE: Ms. 18 Rothstein...? 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: Thank you very 22 much, Commissioner. 23 Dr. Smith, I'm going to continue to ask 24 you some questions about the Jenna case, and to give you 25 the documents that you need, let me just suggest to you

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1 that you have in front of you your written evidence on 2 that case, which is at Tab H. 3 DR. CHARLES SMITH: Yes, I have that. 4 MS. LINDA ROTHSTEIN: Good. The overview 5 report in Jenna's case, I have it in binders for you, but 6 I think you may have your own binder, whichever you 7 prefer. Of the overview reports? Where are they? 8 DR. CHARLES SMITH: Oh, I'm sorry. There 9 are some binders there. 10 COMMISSIONER STEPHEN GOUDGE: It may be 11 the white bound ones over there, if they're the standard 12 -- 13 MS. LINDA ROTHSTEIN: In my volume, it's 14 Volume I, Tab 7. I just don't know what you're using. 15 Dr. Smith, by all means, help Ms. Langford. 16 17 (BRIEF PAUSE) 18 19 DR. CHARLES SMITH: I'm sorry. Okay. I'm 20 sorry. Thank you. 21 22 CONTINUED BY MS. LINDA ROTHSTEIN: 23 MS. LINDA ROTHSTEIN: Okay. And there 24 will be some other documents as well, Dr. Smith. I -- I 25 regret to forewarn you.

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1 DR. CHARLES SMITH: That's fine. 2 MS. LINDA ROTHSTEIN: So I want you to 3 direct your attention back to your post-mortem 4 examination to the best you can. 5 When was it that you first concluded that 6 the item we've been talking about this -- this morning 7 was, indeed, a hair? 8 DR. CHARLES SMITH: Well, I think all 9 along I regarded it as a -- as a hair, you know. 10 MS. LINDA ROTHSTEIN: And when did -- 11 sorry? 12 DR. CHARLES SMITH: No, that's fine. I - 13 - I think I regarded it all along as a hair. 14 MS. LINDA ROTHSTEIN: From the moment you 15 first saw it? 16 DR. CHARLES SMITH: As I -- as I recall, 17 but I have very little recollection of -- of that 18 decision-making, but I believe it was, from the beginning 19 it was a hair. 20 MS. LINDA ROTHSTEIN: And when did you 21 first make any conclusions about what kind of hair it 22 was? 23 DR. CHARLES SMITH: At the -- at the 24 initial examination. It -- well, it to me looked like a 25 con -- a contaminant hair.

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1 MS. LINDA ROTHSTEIN: And when you say a 2 "contaminant" hair -- 3 DR. CHARLES SMITH: Contaminant, mm-hm. 4 MS. LINDA ROTHSTEIN: -- are you 5 suggesting that it was a hair that came from someone who 6 was involved in the resuscitation? I don't know what you 7 mean. 8 DR. CHARLES SMITH: Well, it -- it could 9 have been, yes. It could have been after that. It could 10 have -- it could have been from -- from anyone as I would 11 think it from the point of disrobing and beginning 12 resuscitation. 13 If there were EMT -- Emergency Medical 14 Technologists, or ambulance attendants, it could perhaps 15 be someone like that. 16 MS. LINDA ROTHSTEIN: Are you suggesting 17 by that answer, Dr. Smith, that you concluded, when you 18 first looked at the hair, that it did not belong to the 19 babysitter? 20 DR. CHARLES SMITH: I concluded that it 21 was a -- a contaminant, so it would have been post- 22 interference, post-resuscitation, yes. 23 MS. LINDA ROTHSTEIN: So you're 24 suggesting when you say contaminant, that you concluded, 25 by visual examination alone, that the hair did not belong

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1 to the babysitter, but instead belonged to someone who 2 had been involved in the resuscitation of this young 3 girl? 4 Is that your evidence? 5 DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: Dr. Smith, I know 7 you weren't a formally trained forensic pathologist, but 8 surely you agree with me that no visual examination of 9 the hair could possibly have concluded that? 10 DR. CHARLES SMITH: That was what I 11 concluded. I -- my frame of reference, as I indicated, 12 was I'd seen them. They occur on children's bodies for a 13 variety of reasons. 14 And, so the finding of a hair in this case 15 was in it -- in and of itself not a unique event. 16 MS. LINDA ROTHSTEIN: But you're not 17 actually saying that you knew, with any level of 18 certainty, who the hair belonged to? 19 DR. CHARLES SMITH: No, I'm -- that's 20 correct. I am not saying I knew who it belonged to. 21 MS. LINDA ROTHSTEIN: You -- you're 22 saying that you were prepared, at that very early stage, 23 to draw the conclusion that it didn't belong to one (1) 24 of the two (2) potential suspects. 25 DR. CHARLES SMITH: With the degree of

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1 certainty that I had, yes. Yes, I believed it was a 2 contaminant or a post-resuscitation phenomena, yes. 3 MS. LINDA ROTHSTEIN: And is that because 4 you had prejudged the case at that early stage and 5 effectively excluded from your consideration the 6 possibility that the babysitter was the owner of that 7 hair? 8 DR. CHARLES SMITH: No, I had -- I had 9 never done that. My decision-making on the hair was 10 based on the hair; that was independent of -- of the 11 other issues. 12 I believe I was clear, for a long period 13 of time, that I did not know who was responsible for all 14 of Jenna's injuries, so I -- I believe that I had never 15 excluded the babysitter or anyone else in the home. 16 MS. LINDA ROTHSTEIN: But in deciding 17 that that hair did not belong to him, which you couldn't 18 possibly confirm without DNA analysis, that's precisely 19 what you did, Dr. Smith. 20 DR. CHARLES SMITH: Yeah, I -- I believed 21 it was a reasonable conclusion at the time, yes. 22 MS. LINDA ROTHSTEIN: Can you see now how 23 entirely fallacious it was? 24 DR. CHARLES SMITH: I understand that -- 25 that that was an assumption, and I should have handled

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1 the hair differently. 2 MS. LINDA ROTHSTEIN: Were you certain it 3 wasn't a fibre? 4 DR. CHARLES SMITH: Yeah, it was a hair. 5 It would -- in the general category of -- of that type of 6 analysis, one uses the terms "hair or fibre", but I 7 believed it to be a hair. 8 MS. LINDA ROTHSTEIN: What sort of 9 analysis do you use the term "hair or fibre" if you've, 10 in fact, concluded it was a hair? 11 DR. CHARLES SMITH: Oh, no, if it went to 12 the hair or fibre lab -- 13 MS. LINDA ROTHSTEIN: Right. 14 DR. CHARLES SMITH: -- it would be -- one 15 would use a -- I would use the terms "hair or fibre"; one 16 (1) more specifically and one (1) perhaps more 17 generically. The hair specific and a fibre I would have 18 used that time in a more generic sense. 19 MS. LINDA ROTHSTEIN: Why? Why confuse 20 the issue by describing it a fibre if it was hair and you 21 were so certain of that? 22 DR. CHARLES SMITH: I'm not -- I'm not 23 sure I can remember or recall that, no. 24 MS. LINDA ROTHSTEIN: You seized it. 25 DR. CHARLES SMITH: I did, yes.

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1 MS. LINDA ROTHSTEIN: You or your 2 assistants put it in an evidence envelope. 3 DR. CHARLES SMITH: It -- it was me, and 4 I put it in -- in an envelope that was like a, as I 5 recall, a business type envelope; a clean envelope. 6 MS. LINDA ROTHSTEIN: You wrote on it 7 "hair from pubic area". 8 DR. CHARLES SMITH: I -- I believe I did. 9 I don't remember exactly what I wrote. 10 MS. LINDA ROTHSTEIN: You don't dispute 11 the evidence we have that it was, in fact, a dark hair 12 with a slight curl. 13 DR. CHARLES SMITH: No, I -- I don't 14 dispute that. 15 MS. LINDA ROTHSTEIN: And if you look at 16 the overview report -- 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: -- page 138, 19 that's, indeed, what Constable Charmley concluded; 20 paragraph 138. 21 DR. CHARLES SMITH: Oh, I'm sorry. 22 MS. LINDA ROTHSTEIN: That's at page 77, 23 paragraph 138. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: Do you see that?

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1 DR. CHARLES SMITH: I see that, yes. 2 MS. LINDA ROTHSTEIN: In your written 3 evidence that you have filed with the Commission, page 4 57, you say, in the second paragraph, under the heading 5 "The hair" that you recall asking the police officer who 6 was present about the hair and believes he was advised 7 that the hair had not been found on the body upon initial 8 examination at the hospital. 9 So, just walking through that step by step 10 the -- 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: -- only police 13 officer who was present at your post-mortem was Detective 14 Constable Kirkland -- 15 DR. CHARLES SMITH: That's right. 16 MS. LINDA ROTHSTEIN: -- true? 17 DR. CHARLES SMITH: Yes, that's right. 18 MS. LINDA ROTHSTEIN: So that statement 19 on page 57 refers to him? 20 DR. CHARLES SMITH: Yes. 21 MS. LINDA ROTHSTEIN: Is it still your 22 evidence, Dr. Smith, that you actually recall hearing 23 from Detective Constable Kirkland that the hair had not 24 been found on the body upon initial examination at the 25 hospital?

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1 DR. CHARLES SMITH: I'm -- I'm sorry, run 2 -- run -- I -- I -- I was reading and I shouldn't have 3 been listening to -- I should have been listening to you. 4 I'm sorry. 5 MS. LINDA ROTHSTEIN: Look at the 6 statement in your written evidence -- 7 DR. CHARLES SMITH: Yes. Yes. 8 MS. LINDA ROTHSTEIN: -- and tell me how 9 certain you are about its truth. 10 DR. CHARLES SMITH: Oh. I recall -- yes, 11 the first part of the sentence is true. And I believe I 12 was advised -- yes, that's true as well. That's -- 13 MS. LINDA ROTHSTEIN: When you say "I 14 believe," Dr. Smith -- 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: -- does that 17 manifest some level of uncertainty that we should know 18 about? 19 DR. CHARLES SMITH: My recollection is -- 20 is not 100 percent on -- on that. And so it's, to the 21 best of my recollection, but I believe that to be true. 22 MS. LINDA ROTHSTEIN: And what do you say 23 about Detective Constable Kirkland's evidence that you 24 did no such thing? 25 DR. CHARLES SMITH: If -- if -- if his

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1 recollection is better than mine and his evidence is 2 better than mine, then I would not dispute it; but this, 3 to the best of my recollection, is correct. 4 MS. LINDA ROTHSTEIN: Is it possible, Dr. 5 Smith, given how confusing this has been and the frailty 6 of your recollection that you've conceded, that what 7 happened is you took the hair, you bagged the hair, you 8 sealed the envelope, you labelled it, and you forgot to 9 give it -- 10 DR. CHARLES SMITH: No. 11 MS. LINDA ROTHSTEIN: -- to the 12 Constable? 13 DR. CHARLES SMITH: No. No. 14 MS. LINDA ROTHSTEIN: Is it possible? 15 DR. CHARLES SMITH: I don't believe that 16 that is possible. 17 MS. LINDA ROTHSTEIN: If it was of no 18 forensic value whatsoever, why did you bag it? Why did 19 you seal it? Why did you label it? Why did you put an 20 evidence number on it at all? 21 DR. CHARLES SMITH: Oh, the answer to 22 that is that when doing any autopsy you realize the -- 23 the pathologist knows that there are certain 24 circumstances -- or certain situations wherein you have 25 only one (1) chance to obtain a sample. It doesn't mean

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1 that the sample necessarily has to be analysed but you 2 obtain it in case it may need to be analysed. 3 And this is true not simply of this 4 situation but in -- but in a variety. And every autopsy 5 we did at the Hospital for Sick Children we would take 6 samples that we knew were not going to be analysed 7 immediately, and that's true for every forensic autopsy. 8 It was typical to take samples that could be analysed at 9 a later time if there was need to do so. 10 MS. LINDA ROTHSTEIN: So do I hear you to 11 be saying, Dr. Smith, that you took it because the 12 relevance of that piece of evidence might emerge in 13 future, although it was not known to you on the date that 14 you seized it? 15 DR. CHARLES SMITH: Yes. 16 MS. LINDA ROTHSTEIN: And is that why you 17 kept it? 18 DR. CHARLES SMITH: Well once it was -- 19 it was put away, it was simply put away, yes. But -- 20 yeah, once -- 21 MS. LINDA ROTHSTEIN: But if it was of no 22 forensic value at the time, just to go back to that 23 point, sir, why did you even ask the police officer, 24 Detective Constable Kirkland, to take it? 25 DR. CHARLES SMITH: Well, because we had

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1 offered all of the forensic samples to be taken, as I 2 recall, that it wasn't just the hair, it was also other 3 things like blood. They were all offered to the -- as -- 4 because it was not -- it didn't happen every -- every 5 time but in -- in many instances, perhaps in the majority 6 of instances, police forces want us -- wanted to submit 7 all of the specimens together rather than in -- 8 individually. 9 So some -- some services would always take 10 them and so it was typical to ask the police for their 11 interest in it, and for their willingness to -- to handle 12 the samples. 13 MS. LINDA ROTHSTEIN: I get the point -- 14 DR. CHARLES SMITH: Mm-hm. 15 MS. LINDA ROTHSTEIN: -- that they were 16 responsible in the ordinary course for actually taking 17 custody of the samples -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. LINDA ROTHSTEIN: -- from the autopsy 20 room to the Centre for Forensic Science, but -- 21 DR. CHARLES SMITH: Well, they -- they 22 did -- they did often, but not all the time. 23 MS. LINDA ROTHSTEIN: All right. But in 24 the ordinary course, that was what happened. 25 DR. CHARLES SMITH: Mm-hm. Yes.

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1 MS. LINDA ROTHSTEIN: But is it your 2 evidence, Dr. Smith, that if the officer had refused the 3 other samples, you would have kept those in your office 4 as well? 5 DR. CHARLES SMITH: No. No. No, the 6 other samples would go in the fridge, and then they would 7 eventually be submitted as part of memo 631. 8 Now in this case, the coroner was not 9 interested in -- in the submission of any samples, though 10 he, in his warrant, had instructed me to take blood and 11 hold it. 12 So he was not -- 13 MS. LINDA ROTHSTEIN: Wait a minute. 14 Sorry, Dr. Smith. 15 DR. CHARLES SMITH: I'm sorry. 16 MS. LINDA ROTHSTEIN: You're saying that 17 the coroner was not interested in samples by virtue of 18 what he wrote in the warrant? 19 DR. CHARLES SMITH: In what he wrote in 20 the warrant beforehand, yes. The only sample he was 21 interested in was blood being retained. 22 MS. LINDA ROTHSTEIN: All right. But are 23 you saying, sir, that you left it to the coroner's 24 warrant to conclusively determine for you, the 25 pathologist conducting the forensic autopsy, what samples

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1 might be relevant for your consideration? 2 DR. CHARLES SMITH: No. No, I'm not 3 saying that. In -- in this situation, at the -- yeah, 4 after the autopsy, then -- then the samples that were 5 submitted were submitted based on -- on a discussion 6 between me and the Regional Coroner. 7 I would have submitted just blood alone, 8 if it had been me, as I recall the Regional Coroner 9 wanted the stomach contents submitted as well, as I 10 recall. 11 In most instances, if it's not a 12 criminally suspicious case, then that decision is made by 13 pathology, and there's no other involvement in this case. 14 I would have -- I would have, on the first 15 run, just done the routine toxicology. 16 MS. LINDA ROTHSTEIN: Do I hear you to be 17 telling us, Dr. Smith, that you discussed to some extent 18 which samples should be submitted to the Centre for 19 Forensic Science, with the coroner? 20 DR. CHARLES SMITH: With -- I believe it 21 was with the Regional Coroner. 22 MS. LINDA ROTHSTEIN: Right. Did you 23 discuss the hair with the Regional Coroner? 24 DR. CHARLES SMITH: I don't know. I have 25 no recollection.

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1 MS. LINDA ROTHSTEIN: Do you have any 2 reason to believe that you would have, Dr. Smith? 3 DR. CHARLES SMITH: I -- I can't answer 4 that. I have no recollection. 5 MS. LINDA ROTHSTEIN: There's nothing in 6 your written evidence that hints at that; you agree with 7 that? 8 DR. CHARLES SMITH: I agree with that, 9 yes. 10 MS. LINDA ROTHSTEIN: Whose 11 responsibility is it, ultimately, to ensure that those 12 with the appropriate expertise decide if a particular 13 sample is of forensic value or not? 14 That was your job, wasn't it, Dr. Smith? 15 You have to take ownership -- 16 DR. CHARLES SMITH: Yes. 17 MS. LINDA ROTHSTEIN: -- of that decision 18 not to submit the hair, do you not, sir? 19 DR. CHARLES SMITH: Yes. That was -- at 20 the end of the day, that was my decision, yes. 21 MS. LINDA ROTHSTEIN: If it was of no 22 significance, if it was a "contaminant", to use your 23 description -- well, before we get there. 24 What did you do with it after the post- 25 mortem?

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1 DR. CHARLES SMITH: With the hair? 2 MS. LINDA ROTHSTEIN: Yeah. 3 DR. CHARLES SMITH: I put it -- 4 MS. LINDA ROTHSTEIN: Where'd you put it? 5 DR. CHARLES SMITH: -- in the folder. 6 Yeah. In my -- or in my cabinet. Yes. 7 MS. LINDA ROTHSTEIN: So you put it in 8 the file folder in your office? 9 DR. CHARLES SMITH: Yes. 10 MS. LINDA ROTHSTEIN: In the cabinet 11 where you keep your files? 12 DR. CHARLES SMITH: In -- in a storage 13 cabinet, yes. 14 MS. LINDA ROTHSTEIN: Okay. Where you 15 would keep your autopsy notes as well for that 16 examination? 17 DR. CHARLES SMITH: There would be a 18 variety of things in the file cabinet, yeah. Many 19 autopsy reports and other things as well, yes. 20 MS. LINDA ROTHSTEIN: Okay. But the file 21 does -- 22 DR. CHARLES SMITH: The file -- 23 MS. LINDA ROTHSTEIN: -- that refer to a 24 practice that you had of creating most of the time -- 25 DR. CHARLES SMITH: Mm-hm.

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1 MS. LINDA ROTHSTEIN: -- a file for each 2 case? 3 DR. CHARLES SMITH: Yeah. In each case 4 there was a file, yes. Mm-hm. 5 MS. LINDA ROTHSTEIN: Okay. And what 6 were the ordinary contents of that file, please? 7 DR. CHARLES SMITH: Warrant for post -- 8 in a coroner's case, warrant for post-mortem exam; 9 autopsy diagram; weight sheet; any notes that may have 10 been taken at autopsy; and then later there would be 11 other additions to it, such as ancillary reports that 12 would come in. 13 MS. LINDA ROTHSTEIN: And eventually, 14 your post-mortem report. 15 DR. CHARLES SMITH: That's right. 16 MS. LINDA ROTHSTEIN: All right. So, are 17 we safe in assuming that in this case, you took this hair 18 sample in the evidence envelope and placed it in the file 19 for this case? 20 DR. CHARLES SMITH: I would have at the 21 beginning, yes, mm-hm. 22 MS. LINDA ROTHSTEIN: And that also to be 23 found in that file were the warrant for post-mortem 24 examination? 25 DR. CHARLES SMITH: Yes, in the beginning

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1 that would have all been there, yes. 2 MS. LINDA ROTHSTEIN: Your autopsy notes. 3 DR. CHARLES SMITH: Mm-hm. 4 MS. LINDA ROTHSTEIN: Any ancillary 5 testing results. 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: In the beginning, 8 did things change? 9 DR. CHARLES SMITH: Well, that's what I 10 would have done with it to start with, yes, and -- 11 MS. LINDA ROTHSTEIN: Would have or did? 12 DR. CHARLES SMITH: Well, I -- in going 13 from the autopsy room to my office, that's what my 14 practice would have been. 15 MS. LINDA ROTHSTEIN: And are you saying 16 you have no reason to believe you departed from that 17 practice, Dr. Smith? 18 DR. CHARLES SMITH: I -- I can't remember 19 that I did. I don't have specific recollection. 20 MS. LINDA ROTHSTEIN: All right. As you 21 prepare for the Preliminary Inquiry, did you go back 22 through that file? 23 DR. CHARLES SMITH: I don't recall. 24 MS. LINDA ROTHSTEIN: How was it that you 25 came to make the decision to take the envelope containing

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1 the hair with you to the Preliminary Inquiry? Can you 2 walk us through that, please? 3 DR. CHARLES SMITH: I -- I have no 4 specific recollection of that. 5 MS. LINDA ROTHSTEIN: Your evidence is 6 that you remember, with certainty, that you took the 7 envelope -- 8 DR. CHARLES SMITH: The hair, yes. 9 MS. LINDA ROTHSTEIN: -- to the 10 Preliminary Inquiry. 11 DR. CHARLES SMITH: That's right. 12 MS. LINDA ROTHSTEIN: But you did not 13 take your original autopsy notes, correct? 14 DR. CHARLES SMITH: No, I didn't. No. 15 MS. LINDA ROTHSTEIN: Can you explain 16 that? 17 DR. CHARLES SMITH: Oh, well, I often -- 18 I often didn't. No, that -- it would -- I often would 19 print out copies of the autopsy report -- several copies 20 for distribution in Court -- and -- and usually a copy of 21 my curriculum vitae. 22 MS. LINDA ROTHSTEIN: But, Dr. Smith, I 23 can take you to examples. You were often asked whether 24 you had notes. 25 DR. CHARLES SMITH: Mm-hm, yes.

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1 MS. LINDA ROTHSTEIN: You knew that you 2 might be asked that; certainly you did by the time you 3 gave evidence in this Preliminary Inquiry. 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: Why wasn't it your 6 customary and invariable practice to take your notes to 7 the Preliminary Inquiry? 8 DR. CHARLES SMITH: I realize now I 9 should have, but it wasn't a practice that -- that I 10 engaged in. 11 MS. LINDA ROTHSTEIN: Why? 12 DR. CHARLES SMITH: I'm not certain I -- 13 I can respond to it on a, you know, on a case-by-case 14 basis, but I -- but I often didn't. Sometimes I would 15 simply grab the entire folder, and sometimes I would grab 16 the report. 17 MS. LINDA ROTHSTEIN: Did you think if 18 you had more written documentation about your work, that 19 would just create more questions, more fodder for the 20 defence; is that possible, Dr. Smith? 21 DR. CHARLES SMITH: No. No. I don't 22 think I had that view at all, no. 23 MS. LINDA ROTHSTEIN: Is there anything 24 else you can do to assist us with why you didn't take 25 your original notes to the Preliminary Inquiry in this

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1 case? 2 DR. CHARLES SMITH: Oh, it was -- it was 3 common for me not to take any of the -- of the file 4 folder contents, you know, besides preliminary notes; any 5 of the other papers that would be in there. 6 MS. LINDA ROTHSTEIN: Even in February 7 1998? 8 DR. CHARLES SMITH: Yes. Yes. 9 MS. LINDA ROTHSTEIN: Then can you please 10 assist the Commissioner in understanding why you took the 11 envelope containing the hair found in the vulva area of 12 this young girl? 13 DR. CHARLES SMITH: I can't remember my 14 decision-making at the time. No, I can't. 15 MS. LINDA ROTHSTEIN: You must have 16 thought it could become potentially relevant. 17 DR. CHARLES SMITH: That's a suggestion, 18 but I can't -- I can't remember. 19 MS. LINDA ROTHSTEIN: But, Dr. Smith, 20 there would be no other reason to take it. 21 DR. CHARLES SMITH: Well, I agree with 22 that, but I can't remember. 23 MS. LINDA ROTHSTEIN: Let's look at your 24 Inquiry -- Preliminary Inquiry evidence, if we can. If 25 you would turn to Tab -- or to your overview report at

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1 the top of the page. It's number 30, so it's PFP144684. 2 DR. CHARLES SMITH: Oh, I -- I'm sorry, 3 the overview report? 4 MS. LINDA ROTHSTEIN: Yes, please. 5 DR. CHARLES SMITH: Page 30? Or -- 6 MS. LINDA ROTHSTEIN: Yes. Yes, please. 7 DR. CHARLES SMITH: -- or paragraph 30? 8 Page 30? 9 MS. LINDA ROTHSTEIN: It's page 30 at the 10 top. 11 DR. CHARLES SMITH: Okay. Yes. 12 MS. LINDA ROTHSTEIN: This is an excerpt 13 from the cross-examination that Mr. Hauraney conducted of 14 you. 15 You remember Mr. Hauraney? 16 DR. CHARLES SMITH: Yes, I do. 17 MS. LINDA ROTHSTEIN: And do you remember 18 that he had begun a line of questions about the steps 19 that you had taken to confirm or refute the potential of 20 some sexual abuse of young Jenna? 21 DR. CHARLES SMITH: That's correct. 22 MS. LINDA ROTHSTEIN: And looking at page 23 30, in the middle of the page, he asks you the question 24 point blank, "Did you take any swabs." 25 Stopping there for a moment, Dr. Smith.

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1 You knew perfectly well what he was referring to, did you 2 not? 3 DR. CHARLES SMITH: Yes. Mm-hm. 4 MS. LINDA ROTHSTEIN: He was referring to 5 oral, anal, genital -- 6 DR. CHARLES SMITH: Genital swabs. 7 MS. LINDA ROTHSTEIN: -- swabs -- 8 DR. CHARLES SMITH: Yes. 9 MS. LINDA ROTHSTEIN: -- that would form 10 part of a rape kit? 11 DR. CHARLES SMITH: Mm-hm. Yeah. 12 MS. LINDA ROTHSTEIN: And your answer 13 was: 14 "You know, I was -- I was wondering if 15 I did. I don't have any -- I don't 16 have any record of it and so I -- 17 without -- without that I don't know if 18 I did a rape kit or not." 19 You see that? 20 DR. CHARLES SMITH: Yes. 21 MS. LINDA ROTHSTEIN: So your best 22 recollection in 1998, many, many years ago, when you were 23 first asked about it - and I think this was the first 24 time, Dr. Smith - was that you couldn't even remember if 25 you had or hadn't taken these swabs.

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1 DR. CHARLES SMITH: That's -- yeah, that 2 was my answer at -- at that time, to the best of my 3 recollection. 4 MS. LINDA ROTHSTEIN: Right. So to the 5 extent you now have what would appear to be a firm 6 recollection that you did not take those swabs, your 7 memory has improved by virtue of your review of 8 everything that comes after this point? 9 DR. CHARLES SMITH: Well, my -- my memory 10 is supported now by the fact that I recognize that I 11 don't have any documentation of it from the rape kit. 12 And so that would be part of my response to your 13 statement, is that there I was simply answering based on 14 recollection with no record. And now that I see no 15 record, I believe that -- that there was no rape kit 16 examination. 17 MS. LINDA ROTHSTEIN: And now that you've 18 seen a record which suggests that you didn't do one -- 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: -- you have worked 21 backwards to explain why it was that you didn't? 22 DR. CHARLES SMITH: The -- because there 23 was no -- I'm not sure that I can accept that; I 24 understand why you're saying it, but I'm not sure I can 25 accept that.

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1 MS. LINDA ROTHSTEIN: Because...? 2 DR. CHARLES SMITH: Well, a rape kit exam 3 would have been done had there been evidence of that. I 4 didn't recall one. I don't recall one, and I don't -- 5 and I don't have evidence of one, as I've thought back on 6 that autopsy and tried to search my memory for that. So 7 I -- at the point I answered that question, I -- I was 8 uncertain. 9 I think now my recollection is more 10 certain based on the fact, that is, I've gone back and 11 considered it more carefully with more time and 12 considered it in light of the -- of the documentation or 13 the absence of documentation. I believe that it's a 14 better recollection than it was then -- then a -- then a 15 rapid answer to a question without -- without careful 16 thought. 17 MS. LINDA ROTHSTEIN: Page 31, the next 18 page. 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: Mr. Hauraney 21 continues by talking to you about the potential evidence 22 there was of damage caused by sexual abuse. In the 23 middle of the page. The possibility of tears. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: He's taking you

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1 through the actual record from the emergency room of 2 Peterborough General Hospital, that you and I looked at 3 this morning. 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: And he says at the 6 bottom of that page: 7 "All right. In fear of vulva area as 8 well." 9 Answer: 10 "And I don't know if he's referring to 11 -- to the colour change that I saw in 12 the fourchette or not. He or she, I 13 don't know. He's the attending 14 emergency physician." 15 You were looking at Dr. Friesen's report 16 there, Dr. Smith. 17 DR. CHARLES SMITH: Okay. Thank you. 18 MS. LINDA ROTHSTEIN: Okay? 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: And then you say: 21 "Yeah -- yeah." 22 And then over the page: 23 "Q: And I take it he'd be looking at 24 some sexual interference on this child, 25 as well as other?

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1 A: He worried about it, yeah." 2 Q: And then he goes on to say, quote 3 'a curly hair around the vulva area'? 4 A: Mm-hm. 5 Q: Do you see that? 6 A: Yeah. 7 Q: Would you expect this girl to have 8 a curly hair on her vulva? 9 A: No. No. I assume that that's some 10 pick up. That's something which has 11 landed there. 12 Do you see that, Dr. Smith? 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: Dr. Smith, Mr. 15 Hauraney was clearly showing you the emergency room 16 record which described the hair in the very location in 17 which you found it, correct? 18 DR. CHARLES SMITH: Yes. 19 MS. LINDA ROTHSTEIN: And described the 20 hair as best as you could have described it at that time 21 being a curly hair, correct? 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: And that didn't 24 connect with you? 25 DR. CHARLES SMITH: No, because it was in

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1 the context of -- as I recall, it was in the context of 2 sexual abuse, and a pubic hair, and -- and I -- and I 3 didn't connect it in -- 4 MS. LINDA ROTHSTEIN: But, Dr. Smith, no 5 pubic hair is mentioned there. In fact, you are 6 dismissing it already as pickup. 7 Isn't that synonymous with a contaminant? 8 DR. CHARLES SMITH: Yes. 9 MS. LINDA ROTHSTEIN: Isn't that what you 10 meant? 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: So weren't you 13 there, Dr. Smith, offering the very explanation you've 14 offered to us about what this very hair was? 15 DR. CHARLES SMITH: Yes, I see that. Mm- 16 hm. 17 MS. LINDA ROTHSTEIN: What question would 18 it have taken to connect you to the hair in the envelope 19 in your pocket? 20 DR. CHARLES SMITH: I -- I -- I'm sorry. 21 I'm not sure why I didn't -- I didn't respond and -- and 22 indicate that I had it, but as I think of it, I was 23 thinking of one thing, and not another, and that's a 24 mistake. And I realize that. But I didn't connect. 25 MS. LINDA ROTHSTEIN: It's only then that

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1 he goes on, Dr. Smith, in the next question to say: 2 "I understand from speaking with him 3 and it would be evidenced later on. 4 Mm-hm. 5 But I understand in speaking with him, 6 that he was satisfied it was consistent 7 with a dark pubic hair. 8 A: You know something I don't know." 9 DR. CHARLES SMITH: Mm-hm. 10 MS. LINDA ROTHSTEIN: 11 "Q: No, and I appreciate that. 12 A: Yeah. Yeah." 13 Q: But does that -- by that added -- 14 you -- you anticipated does that raise 15 the alarm bells?" 16 Q: Yes. 17 A: Yes. Sure." 18 Dr. Smith, why weren't the alarm bells 19 going off? 20 DR. CHARLES SMITH: I don't know. I 21 don't know. I can't -- I can't remember my thinking at 22 that time. 23 MS. LINDA ROTHSTEIN: Did you exhibit the 24 honesty and candour the justice system is entitled to 25 expect from a witness?

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1 DR. CHARLES SMITH: I -- I erred. I -- I 2 erred significantly, and I recognize that. 3 MS. LINDA ROTHSTEIN: And, Dr. Smith, 4 help us with this, if you will. It didn't connect while 5 you were sitting in the witness box. It's stressful. 6 The questions come at you -- 7 DR. CHARLES SMITH: Mm-hm. 8 MS. LINDA ROTHSTEIN: -- wild and 9 furiously. It's hard to make sense of them all. We 10 grant you that, sir. 11 But afterwards? Afterwards? It sat in 12 your drawer for three (3) more years until Detective 13 Constable Charmley called you in October of 2001, did it 14 not? 15 DR. CHARLES SMITH: I can't remember who 16 -- who contacted me, but, yes, it sat there for some 17 time. For years, yes. 18 MS. LINDA ROTHSTEIN: And you just told 19 me that the reason you had seized it, and kept it, 20 notwithstanding your initial conclusion that it was a 21 contaminant is because it might become relevant to the 22 investigation. 23 DR. CHARLES SMITH: That's right. 24 MS. LINDA ROTHSTEIN: And after the 25 Preliminary Inquiry, could there be any doubt that the

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1 defence was pursuing a theory that the babysitter had 2 sexually interfered with young Jenna? 3 DR. CHARLES SMITH: I -- I don't know 4 what theory the defence was pursuing. 5 MS. LINDA ROTHSTEIN: Dr. Smith, please. 6 DR. CHARLES SMITH: Mm-hm. 7 MS. LINDA ROTHSTEIN: You've seen the 8 questions that were asked of you. 9 DR. CHARLES SMITH: Yes, yes. No, I'm -- 10 MS. LINDA ROTHSTEIN: You surely 11 understood that the defence was, at least, trying to 12 determine whether there was any possibility that Jenna 13 had been the victim of a sexual assault. 14 DR. CHARLES SMITH: Yes, and -- and I 15 recognize that, but I thought I had answered that at -- 16 at the Preliminary Hearing. 17 MS. LINDA ROTHSTEIN: But my point, Dr. 18 Smith, is, once you knew that was a live and present 19 issue, didn't that make any rationalization you had about 20 this hair being a contaminant that couldn't possibly be 21 of relevance, completely untenable. 22 DR. CHARLES SMITH: I always thought it 23 irrelevant. Now, I'm sorry, that was -- that was my 24 view. 25 MS. LINDA ROTHSTEIN: If we turn to your

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1 written evidence, Dr. Smith, at page 50... 2 3 (BRIEF PAUSE) 4 5 MS. LINDA ROTHSTEIN: Actually, I think I 6 have the -- 56, sorry. 7 DR. CHARLES SMITH: Oh, I'm sorry. 8 MS. LINDA ROTHSTEIN: Have you got that? 9 DR. CHARLES SMITH: I have that, yes. 10 MS. LINDA ROTHSTEIN: At -- at the bottom 11 of the page, it reads: 12 "Dr. Smith did not use a sexual assault 13 evidence kit. It was not his practice 14 to use a kit unless he was specifically 15 requested to do so." 16 Stopping there for a moment. 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: That was a really 19 mistaken practice, was it not? 20 DR. CHARLES SMITH: Well, that would be 21 one (1) of the criteria for doing that, yes. 22 MS. LINDA ROTHSTEIN: Okay. 23 DR. CHARLES SMITH: Yeah. 24 MS. LINDA ROTHSTEIN: Or if he found 25 injuries that were suggestive of sexual assault.

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1 DR. CHARLES SMITH: Yes, that would be 2 the other criterion. 3 MS. LINDA ROTHSTEIN: There was, in fact, 4 there was, evidence of possible sexual abuse in this 5 case, was there not? There was evidence of a rectal 6 tear; of the labia being swollen and bruised. 7 Dr. Milroy said one (1) of the photographs 8 shows the presence of an area of reddening below the 9 clitoris in the vaginal opening. 10 Have you seen those photographs, sir? We 11 don't need to show them to you. 12 DR. CHARLES SMITH: No, I understand 13 that, but that's not how I interpreted them. 14 MS. LINDA ROTHSTEIN: But at the stage of 15 the post-mortem -- 16 DR. CHARLES SMITH: Mortem, yes. 17 MS. LINDA ROTHSTEIN: -- you're not 18 supposed to come to conclusions, are you? You're 19 supposed to take all the samples, consider all the 20 options before you come to any hard and fast conclusions, 21 isn't that right? 22 DR. CHARLES SMITH: Yes, but in this 23 case, I believe that my decision-making was a -- was 24 appropriate. I didn't see evidence of injury, and I 25 asked for a second opinion from a second set of eyes,

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1 from a person who had much more experience in the area, 2 albeit from a different viewpoint. 3 So by the time that part of the external 4 examination was over, I had every reason to believe that 5 there was no evidence of -- of sexual assault. 6 MS. LINDA ROTHSTEIN: Back to the 7 Preliminary Inquiry and the afterward, did you still have 8 an open mind? Did you still consider it possible that JD 9 or someone other than Ms. Waudby had killed young Jenna? 10 DR. CHARLES SMITH: I always considered 11 the possibility that it was someone other than Ms. 12 Waudby. I was never of the opinion that it could not -- 13 that the -- that fatal injuries could not have occurred 14 at -- at a much more recent time or a time closer to 15 death. 16 MS. LINDA ROTHSTEIN: You didn't toss the 17 envelope in the garbage? 18 DR. CHARLES SMITH: No. 19 MS. LINDA ROTHSTEIN: You put it back in 20 your drawer? In your filing cabinet? 21 DR. CHARLES SMITH: Yes, yes. 22 MS. LINDA ROTHSTEIN: Put it back in the 23 file for this case? 24 DR. CHARLES SMITH: I don't recall. 25 MS. LINDA ROTHSTEIN: Did you look for

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1 your notes, having been asked if you had any? 2 DR. CHARLES SMITH: No. I don't recall 3 that, no. 4 MS. LINDA ROTHSTEIN: Why, if it was 5 still so irrelevant that you didn't need to raise it with 6 anyone, did you still keep it? 7 DR. CHARLES SMITH: I -- I don't throw 8 things out very much. So it would be consistent with my 9 -- my practice on anything -- not forensic autopsies, on 10 -- on anything -- just to take information or data or 11 whatever and just put it away. 12 MS. LINDA ROTHSTEIN: It was just like 13 keeping an article that you'd read about some -- 14 DR. CHARLES SMITH: No. 15 MS. LINDA ROTHSTEIN: -- forensic topic? 16 DR. CHARLES SMITH: No, no. No, it was 17 different than that. 18 MS. LINDA ROTHSTEIN: In what way? 19 DR. CHARLES SMITH: Well, it was not an 20 article. 21 MS. LINDA ROTHSTEIN: But in terms of 22 why -- 23 DR. CHARLES SMITH: Yeah. 24 MS. LINDA ROTHSTEIN: -- you kept it. 25 DR. CHARLES SMITH: I think I kept all of

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1 the pieces of paper that were on autopsies; that were 2 something other than, you know, telephone messages and 3 that sort of thing that I wouldn't have kept. So that -- 4 it was consistent with just putting it back with CFS 5 submission forms or preliminary -- preliminary reports 6 from another department -- that sort of thing. 7 MS. LINDA ROTHSTEIN: At the bottom of 8 page 57, you say that you would from time to time see it 9 when you had occasion to open your cabinet drawer. 10 Did that continue after the preliminary 11 inquiry? That's at the bottom of the page, Dr. Smith. 12 DR. CHARLES SMITH: Yes. Yeah, I -- 13 yeah. If -- if I was in that area, I think that's 14 reasonable. I don't have specific recollection. 15 MS. LINDA ROTHSTEIN: You didn't tell Mr. 16 Hauraney about it, correct? 17 DR. CHARLES SMITH: I don't -- I don't 18 recall telling him, no. 19 MS. LINDA ROTHSTEIN: You didn't tell the 20 Crown about it? 21 DR. CHARLES SMITH: No, I don't believe 22 so. 23 MS. LINDA ROTHSTEIN: You didn't tell the 24 police about it? 25 DR. CHARLES SMITH: Well, I believed that

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1 the police knew about it in the beginning, but I didn't - 2 - I don't think I discussed it from the time of the 3 preliminary afterwards. 4 MS. LINDA ROTHSTEIN: You didn't tell Dr. 5 Cairns or Dr. Young about it? 6 DR. CHARLES SMITH: No. No. 7 MS. LINDA ROTHSTEIN: Detective Constable 8 Charmley called you on October the 5th, 2001 and left you 9 a message. If you look at Tab 24 of Volume I of the 10 white bound volumes, please. Oops, that's not it. 11 Sorry, I have the wrong ref -- oh no, I don't. 12 DR. CHARLES SMITH: No, I think that 13 might be it. 14 MS. LINDA ROTHSTEIN: It's further on, 15 that's all it is. At page 21 at the top, please. 16 DR. CHARLES SMITH: Yes, I have it. 17 MS. LINDA ROTHSTEIN: Do you see that? 18 And it's PFP072719. 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: 21 "Friday, October the 5th of 2001. Left 22 message for Dr. Charles Smith, HSC, to 23 call me." 24 Do you see that? 25 DR. CHARLES SMITH: Yes.

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1 MS. LINDA ROTHSTEIN: You called him back 2 the same day at 11:15, it would appear? 3 DR. CHARLES SMITH: Yes. 4 MS. LINDA ROTHSTEIN: 5 "Discussed his recollection of a hair 6 in vaginal area. He advised he did 7 recall it and, in fact, seized it. He 8 described it as a fibre that police did 9 not feel was pertinent to seize so he 10 kept it in his files. Believes he 11 still has and will check to confirm and 12 get back to me." 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: Do you have any 15 reason to dispute that you described it to Detective 16 Constable Charmley as a fibre? 17 DR. CHARLES SMITH: Yes. I -- I have no 18 reason to dispute that, yes. 19 MS. LINDA ROTHSTEIN: Why describe it as 20 a fibre when he asked you about a hair, and you knew you 21 had collected a hair? 22 DR. CHARLES SMITH: Yeah. I -- I can't 23 recall. I can't recall the conversation in detail so 24 whether I said "fibre" generically or whether I said hair 25 or fibre or -- I don't recall.

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1 MS. LINDA ROTHSTEIN: Wasn't that just 2 misleading? 3 DR. CHARLES SMITH: It was certainly not 4 intended to be. I had indicated, as I look at it here, 5 that I had said that I had seized a hair. 6 MS. LINDA ROTHSTEIN: Did you look for 7 it? 8 DR. CHARLES SMITH: Yes, I did. 9 MS. LINDA ROTHSTEIN: You presumably knew 10 exactly where it was? 11 DR. CHARLES SMITH: Well, I certainly 12 found it, yes. 13 MS. LINDA ROTHSTEIN: Why didn't you 14 phone Detective Constable Charmley back and tell him that 15 you had it as you said you would? 16 DR. CHARLES SMITH: I -- I don't 17 remember, you know, the -- my actions or conversations 18 with him right after that. 19 MS. LINDA ROTHSTEIN: It was the fall of 20 2001, Dr. Smith. 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: Your conduct, as a 23 forensic pathologist, was under scrutiny. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: As a result, you

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1 weren't doing autopsies in criminally suspicious cases. 2 DR. CHARLES SMITH: That's correct. 3 MS. LINDA ROTHSTEIN: As far as you knew, 4 the OCCO was still doing some sort of review of your 5 criminally suspicious cases? 6 DR. CHARLES SMITH: They -- they could 7 have been. I'm not sure that I know the answer to that 8 question for certain. 9 MS. LINDA ROTHSTEIN: In those 10 circumstances, Dr. Smith, why didn't you respond with 11 alacrity? 12 DR. CHARLES SMITH: I -- I can't recall. 13 I can't recall the events. 14 MS. LINDA ROTHSTEIN: At page 22 of that 15 same document, at the bottom of the page on the left-hand 16 side, Detective Constable Charmley records: 17 "He further confirmed that he had a 18 child abuse expert look at the 19 evidence, and he is confident there was 20 no evidence of sexual assault on Jenna. 21 I advised that I would want to submit 22 the fibre to CFS, if he still has it, 23 for further examination and that I may 24 still want to speak to him in the 25 future."

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1 Again, do you have any reason to dispute 2 the accuracy of Detective Charmley's contemporaneous 3 note? 4 DR. CHARLES SMITH: No, I don't. 5 MS. LINDA ROTHSTEIN: So you knew, at the 6 end of that call, that he was waiting to hear from you? 7 DR. CHARLES SMITH: That's how -- that's 8 how this records, yes. 9 MS. LINDA ROTHSTEIN: Let's look at Tab 10 25 if we can, of that same book of documents. 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: And we have here an 13 email exchange between you and Jeff Mainland? 14 DR. CHARLES SMITH: Yes. 15 MS. LINDA ROTHSTEIN: You remember Mr. 16 Mainland was the Executive Assistant to Dr. Cairns at the 17 time? 18 DR. CHARLES SMITH: Yes, I do. Yeah. 19 MS. LINDA ROTHSTEIN: And he assisted Dr. 20 Cairns with a whole range of thing? 21 DR. CHARLES SMITH: Mm-hm. 22 MS. LINDA ROTHSTEIN: And in an email 23 that you sent to him on November the 6th, 2001, almost a 24 month later, you say: 25 "Subject: Fibre.

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1 Jeff, yes, I have the fibre. I spoke 2 with a member of Durham Regional Police 3 several weeks ago. We agreed that I 4 would keep the fibre until they checked 5 on what should be done with it. The 6 officer I spoke with was going to speak 7 with his colleagues [sorry, it's 8 053106] and if appropriate with someone 9 from the hair/fibre section of the CSF. 10 I haven't spoken to anyone since then 11 so until I received your message, I was 12 not aware of what was happening. In 13 fact, I don't even know the name of the 14 police officer who is in charge of the 15 investigation, but he seemed pretty 16 clueless. He wanted Bonnie Porter to 17 get all the Crown and defence medical 18 experts together in a meeting and have 19 them all agree on the case. 20 In reference to the fibre, I am not 21 sure that I will be able to do anything 22 about it this week as I am tied up in 23 court." 24 And then you have some comments to make 25 about --

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1 DR. CHARLES SMITH: Mm-hm. 2 MS. LINDA ROTHSTEIN: -- the Kporwodu 3 matter that -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: -- sound a little 6 bit resentful about that, do they not? 7 DR. CHARLES SMITH: Yes, they do. 8 MS. LINDA ROTHSTEIN: That's not really a 9 very accurate description of your conversation with 10 Detective Charmley, is it? 11 DR. CHARLES SMITH: Well, obviously I -- 12 you know, I'm making mistakes in my recollection here, at 13 least, because I don't think he would have -- he was 14 Durham Region. 15 MS. LINDA ROTHSTEIN: That's not my 16 point, Dr. Smith. You'd been slow to retrieve the hair 17 and call back Detective Constable Charmley. That's what 18 had happened. You weren't waiting for Detective 19 Constable Charmley to come up with some decision and call 20 you back. 21 DR. CHARLES SMITH: I can't remember. I 22 see his notes. I see my notes from some time later. I 23 have no recollection of my thinking or anything that 24 occurred between those points in time. I simply don't 25 remember.

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1 MS. LINDA ROTHSTEIN: Were you shifting 2 the blame to someone else? 3 DR. CHARLES SMITH: In -- 4 MS. LINDA ROTHSTEIN: Uncharitably -- 5 DR. CHARLES SMITH: -- in this case? 6 MS. LINDA ROTHSTEIN: -- so? 7 DR. CHARLES SMITH: I can't -- I can't 8 recall that I was. 9 MS. LINDA ROTHSTEIN: I'm also interested 10 in the fact that you've used the term "fibre" -- 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: -- in that email 13 three (3) times. 14 DR. CHARLES SMITH: Mm-hm. Yes. 15 MS. LINDA ROTHSTEIN: Why did you 16 describe it as a fibre if you were so certain it was a 17 trunk hair and not a pubic hair? Why did you do that? 18 DR. CHARLES SMITH: I think -- well, I 19 can't remember specifically why. 20 MS. LINDA ROTHSTEIN: Were you trying to 21 minimize its importance, Dr. Smith? 22 DR. CHARLES SMITH: I don't recall. I 23 always felt it was unimportant, so I'm not -- I'm not in 24 a position to say that I was trying to minimize its 25 importance.

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1 MS. LINDA ROTHSTEIN: Now, we know on 2 November 15th, 2001, Detective Constable Charmley 3 actually attended at HSC, met with you, and gave -- and 4 you gave him, at that time, the sealed white envelope. 5 And then on December the 21st -- in the 6 next month -- 2001, you responded to Ms. Waudby's 7 complaint to the CPSO that you hadn't done a proper 8 sexual abuse examination. So let's look at that letter. 9 It's at Tab 26, and it's 053096. 10 DR. CHARLES SMITH: Yes, I have that. 11 MS. LINDA ROTHSTEIN: Take a look at it, 12 Dr. Smith, and just refresh your memory about that 13 letter, as opposed to some of the others that you've 14 written in response to complaints. Just -- just give 15 yourself a minute. 16 17 (BRIEF PAUSE) 18 19 MS. LINDA ROTHSTEIN: And particularly, 20 the paragraph entitled "Sexual Abuse Examination" on -- 21 DR. CHARLES SMITH: Mm-hm. 22 MS. LINDA ROTHSTEIN: -- page 2. 23 DR. CHARLES SMITH: Yes. 24 MS. LINDA ROTHSTEIN: Ms. Waudby had 25 raised, in her complaint, a concern that you hadn't taken

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1 a rape kit, had she not? 2 DR. CHARLES SMITH: That's my 3 understanding, yes. 4 MS. LINDA ROTHSTEIN: And you were 5 responding to that complaint. 6 DR. CHARLES SMITH: To -- yeah, to the -- 7 MS. LINDA ROTHSTEIN: Among others. 8 DR. CHARLES SMITH: Yes, that's right, 9 yes. 10 MS. LINDA ROTHSTEIN: And in that 11 paragraph on page 2 you say: 12 "At the time of the post-mortem 13 examination a sexual abuse examination 14 was performed by me. In this, I was 15 assisted by Dr. Dirk Huyer, the 16 Director of SCAN at the Hospital for 17 Sick Children. He and I agreed that 18 there was no evidence of abuse; 19 nevertheless, appropriate sampling was 20 undertaken." 21 Your words, sir. 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: Let's be clear 24 about what that didn't mean. It didn't mean that you 25 used a rape kit, correct?

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1 DR. CHARLES SMITH: No, it -- no, it -- 2 it did not specify what that was, no. 3 MS. LINDA ROTHSTEIN: Well, it couldn't 4 have meant that because you didn't, and you knew that. 5 DR. CHARLES SMITH: Yes, yes. 6 MS. LINDA ROTHSTEIN: And it didn't mean 7 that you had taken anal swabs, vaginal swabs or oral 8 swabs, therefore. 9 DR. CHARLES SMITH: No. No, it didn't 10 mean that. 11 MS. LINDA ROTHSTEIN: You didn't take any 12 of those samples -- 13 DR. CHARLES SMITH: No. 14 MS. LINDA ROTHSTEIN: -- what most people 15 would think of as samples. 16 DR. CHARLES SMITH: Yes. 17 MS. LINDA ROTHSTEIN: Nevertheless, you 18 used the words "appropriate sampling" -- 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: -- to refer to 21 what? 22 DR. CHARLES SMITH: As I explained it 23 later, it was to refer to the fact that the hair was 24 kept, but I didn't do the rest of the examination, or the 25 other aspects of a rape kit because I didn't feel it was

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1 warranted. 2 I -- I think that is my -- 3 MS. LINDA ROTHSTEIN: You say that 4 subsequently, indeed; there's no doubt -- 5 DR. CHARLES SMITH: Yeah, yes. 6 MS. LINDA ROTHSTEIN: -- about that. 7 DR. CHARLES SMITH: Yes. Okay, yeah. I 8 was -- I was vague, and I shouldn't have been vague. 9 MS. LINDA ROTHSTEIN: This was -- 10 DR. CHARLES SMITH: And -- 11 MS. LINDA ROTHSTEIN: Yes? 12 DR. CHARLES SMITH: And I recognize that. 13 MS. LINDA ROTHSTEIN: This was your 14 professional regulator, Dr. Smith. 15 DR. CHARLES SMITH: Yes, yes, yeah. 16 MS. LINDA ROTHSTEIN: You owed them an 17 obligation to be completely candid -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. LINDA ROTHSTEIN: -- and forthright, 20 did you not? 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: Is there any other 23 way to describe this, but obfuscation? 24 DR. CHARLES SMITH: Yes, I think I was 25 trying to express the fact that what I had done was --

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1 was right. And so I -- rather than detailing what was 2 done or not done, my words, as I -- as I see them or 3 remember them, were written to indicate that, No, what 4 was done was right. 5 So that wasn't trying to obfuscate it. 6 That was simply to indicate that I thought that what had 7 been done was appropriate -- 8 MS. LINDA ROTHSTEIN: So -- 9 DR. CHARLES SMITH: -- and was correct in 10 that situation. 11 MS. LINDA ROTHSTEIN: And seizing the 12 hair was correct and appropriate? 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: But seizing it and 15 not submitting it was correct and appropriate? 16 DR. CHARLES SMITH: Yes. Yeah. 17 MS. LINDA ROTHSTEIN: You then go on to 18 say: 19 "The police who are responsible for the 20 submission of evidence in homicide 21 investigations chose not to submit this 22 material for analysis." 23 DR. CHARLES SMITH: Yes. 24 MS. LINDA ROTHSTEIN: Is that really a 25 fair statement about the police?

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1 DR. CHARLES SMITH: Well, it was my 2 understanding that they had no interest in it; that they 3 believed it to be irrelevant. 4 MS. LINDA ROTHSTEIN: But by suggesting -- 5 DR. CHARLES SMITH: Yeah. 6 MS. LINDA ROTHSTEIN: -- that they were 7 responsible for the decision, weren't you avoiding your 8 own responsibility for that decision, Dr. Smith? 9 DR. CHARLES SMITH: I was trying to share 10 the -- the responsibility for that decision-making, I 11 believe. Yes. 12 MS. LINDA ROTHSTEIN: Do you think your 13 language conveys that adequately? 14 DR. CHARLES SMITH: No. No, it -- 15 retrospectively, it doesn't, no. 16 MS. LINDA ROTHSTEIN: You then continue: 17 "It remained under seal in my care. 18 Following Ms. Waudby's complaint to the 19 College, I have asked the police 20 investigators to reconsider their 21 decision, and they agreed to do so. 22 Subsequently, a member of the 23 Peterborough Police Service obtained 24 the material from me, and he gave it to 25 the Office of the Chief Coroner for

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1 safekeeping until a final decision is 2 made on whether it will be examined." 3 Dr. Smith, do those words sit well with 4 you today, in light of the evidence we've just reviewed? 5 DR. CHARLES SMITH: No, they don't. No, 6 they don't. 7 MS. LINDA ROTHSTEIN: Did it lie in your 8 mouth to take credit for the re-examination of the 9 forensic significance of the hair? 10 DR. CHARLES SMITH: No, I shouldn't have 11 said that, and that was wrong. 12 MS. LINDA ROTHSTEIN: Would it be fair to 13 characterize your answer, sir, as untrue and self- 14 serving? 15 DR. CHARLES SMITH: Yes. Yes, I made a 16 mistake, and I shouldn't have. 17 MS. LINDA ROTHSTEIN: Your letter was 18 sufficiently ambiguous that Ms. Doris required 19 clarification, did she not? 20 DR. CHARLES SMITH: That's -- that's 21 correct, I believe so. 22 MS. LINDA ROTHSTEIN: That's at Tab 27. 23 DR. CHARLES SMITH: Yes. 24 MS. LINDA ROTHSTEIN: Her letter dated 25 January 16th, 2002, to you, at 146455.

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1 DR. CHARLES SMITH: Yes, I have that. 2 Yeah. 3 MS. LINDA ROTHSTEIN: And before we turn 4 to your response, which you and I have both noted, it's 5 at April 11th, 2002. I want to review with you, Dr. 6 Smith, the events that transpired between January and 7 April, 2002, with respect to this issue. 8 Am I correct, Dr. Smith, that you didn't 9 reply prior to April of that year, you say, because of 10 the inappropriate publicity that followed your initial 11 response. Those are the opening words of your April 11th 12 letter at the next tab. 13 DR. CHARLES SMITH: Yes, I see that. Mm- 14 hm. 15 MS. LINDA ROTHSTEIN: Do you recall, Dr. 16 Smith, that the media first published a story about the 17 hair in the middle of February, 2002? 18 DR. CHARLES SMITH: I -- I don't recall 19 now just the events of that, but -- but -- I -- this 20 response does bring to mind that there was an issue. I 21 can't be more specific in my recollection of that. 22 MS. LINDA ROTHSTEIN: Are you prepared to 23 accept Dr. Cairns' evidence on that point? 24 DR. CHARLES SMITH: Yes, I would. Yes. 25 MS. LINDA ROTHSTEIN: And shortly after

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1 the media reports, we learn from Dr. Cairns, your wife 2 called him because she felt that the media had been 3 unfair to you and that the OCCO wasn't properly 4 supporting you. 5 Were you aware of that? 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: Is Dr. Cairns 8 correct in his recollection that he met with you and your 9 wife sometime between February 20th of 2002 and April the 10 10th of 2002? 11 DR. CHARLES SMITH: I can't remember the 12 date but if that's -- if that's what his opinion was, I 13 would not dispute that. 14 MS. LINDA ROTHSTEIN: And was it your 15 desire for a meeting or your wife's desire for a meeting, 16 or did you both wish a meeting with Dr. Cairns? 17 DR. CHARLES SMITH: No. I learned of the 18 meeting after my wife had arranged it, and she indicated 19 to me that I could come if I wanted to, but regardless, 20 she was going to meet with Dr. Cairns. 21 MS. LINDA ROTHSTEIN: You decided to go? 22 DR. CHARLES SMITH: I felt that it was 23 appropriate to go. If the meeting was about me, then -- 24 then I felt that I should be, at least, a party to the 25 conversation or listen to the conversations.

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1 MS. LINDA ROTHSTEIN: Tell us what you 2 remember about that meeting, please, Dr. Smith. 3 DR. CHARLES SMITH: I actually remember 4 very, very little. I can't remember anything -- anything 5 specific about the meeting whatsoever. I remember being 6 there with -- with Dr. Cairns, and my wife, and myself, 7 and there may have been someone else there. I can't -- I 8 can't remember. 9 MS. LINDA ROTHSTEIN: Who else might have 10 been there? I wasn't aware of that potential. 11 DR. CHARLES SMITH: It -- it might have 12 been -- 13 MS. LINDA ROTHSTEIN: Been Jeff Mainland? 14 DR. CHARLES SMITH: Jeff Mainland, yeah. 15 MS. LINDA ROTHSTEIN: Okay. 16 DR. CHARLES SMITH: But that's -- but I -- 17 MS. LINDA ROTHSTEIN: I think Dr. Cairns 18 thinks he was, actually, on reflections. 19 DR. CHARLES SMITH: Oh, all right, all 20 right. And beyond that, I have very little recollection 21 of -- of the meeting. I only know that -- that the 22 meeting went on for some period of time and -- and Dr. 23 Cairns spoke a great deal, but then -- but then that is 24 often the way that he runs meetings, and so that would be 25 consistent with that, but I have no specific recollection

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1 of it. 2 MS. LINDA ROTHSTEIN: You've had an 3 opportunity to review Dr. Cairns' evidence about that 4 meeting? 5 DR. CHARLES SMITH: I've -- I -- I have. 6 I think -- I think I've read -- read his evidence on that 7 or understood it, yes. 8 MS. LINDA ROTHSTEIN: Would you like 9 another opportunity to do that, or can I summarize it for 10 you? 11 DR. CHARLES SMITH: You -- if you 12 summarize it again. 13 MS. LINDA ROTHSTEIN: Did you tell Dr. 14 Cairns or did your wife tell Dr. Cairns that you believe 15 the OCCO had a duty to protect you from the College 16 investigation into this issue? 17 DR. CHARLES SMITH: I don't have that 18 recollection, but if Dr. Cairns said so, then I would not 19 dispute it. 20 MS. LINDA ROTHSTEIN: So, equally you 21 don't dispute Dr. Cairns' recollection that you wanted 22 him to continue to assert that the College had no 23 jurisdiction over you? 24 DR. CHARLES SMITH: Yeah, I can't dispute 25 that.

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1 MS. LINDA ROTHSTEIN: Did that accord 2 with your feeling about the College's process at that 3 time, sir? 4 DR. CHARLES SMITH: That had been -- 5 yeah, that had been my -- my understanding or my view, 6 yes. 7 MS. LINDA ROTHSTEIN: Dr. Cairns also 8 testified that he realized that pathologists often have 9 rough notes of their autopsy, and he asked you whether 10 you had any and you said, no. 11 DR. CHARLES SMITH: I don't re -- 12 MS. LINDA ROTHSTEIN: Does that accord 13 with your recollection? 14 DR. CHARLES SMITH: I don't remember that 15 at all. 16 MS. LINDA ROTHSTEIN: Do you have any 17 reason to dispute that? 18 DR. CHARLES SMITH: No, no. 19 MS. LINDA ROTHSTEIN: At that point, Dr. 20 Smith -- 21 DR. CHARLES SMITH: Mm-hm. 22 MS. LINDA ROTHSTEIN: -- had you looked 23 for your rough autopsy notes? 24 DR. CHARLES SMITH: I don't recall that I 25 had, no.

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1 MS. LINDA ROTHSTEIN: Why not? 2 DR. CHARLES SMITH: I -- I can't -- 3 MS. LINDA ROTHSTEIN: You've written one 4 (1) letter to the College. 5 DR. CHARLES SMITH: Yeah, I can't 6 remember why. I mean, I -- I simply can't remember. 7 MS. LINDA ROTHSTEIN: Wouldn't have been 8 -- wouldn't that have been one (1) of the first things 9 you would have done in trying to reconstruct the events 10 that had now been raised by Ms. Waudby and were the 11 subject of a potential College investigation, Dr. Smith? 12 DR. CHARLES SMITH: I -- I can't -- I 13 can't remember the process at all. 14 MS. LINDA ROTHSTEIN: There's not doubt 15 that, in that meeting, you told Dr. Cairns you had no 16 notes? 17 DR. CHARLES SMITH: If that's what he 18 said, then that -- then that -- I can't dispute that, 19 yeah. 20 MS. LINDA ROTHSTEIN: And are we, at 21 least, satis -- are you satisfied, Dr. Smith, that as of 22 the spring of 2002, you had not found any autopsy notes 23 for that case? 24 DR. CHARLES SMITH: I think that's -- I 25 think that's reasonable. I -- I can't dispute it, but I

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1 don't remember specifically. 2 MS. LINDA ROTHSTEIN: Notwithstanding the 3 media attention, the police attention, the CPSO 4 attention, they hadn't turned up yet. 5 DR. CHARLES SMITH: I -- I can't think 6 that I saw them, no. 7 MS. LINDA ROTHSTEIN: You had, at that 8 stage, already identified one (1) of your colleagues, Dr. 9 Huyer, as having confirmed your view that there were no 10 sexual injuries to young Jenna. 11 DR. CHARLES SMITH: That's correct. 12 MS. LINDA ROTHSTEIN: And when Dr. Cairns 13 asked you, specifically, about why you had not disclosed 14 the existence of the hair that was in your possession, 15 when you testified at the preliminary inquiry, he said 16 you had no answer. 17 DR. CHARLES SMITH: I don't recall that, 18 so I can't dispute what he said. 19 MS. LINDA ROTHSTEIN: Are we agreed, at 20 least, that you did not tell Dr. Cairns, by way of 21 explanation, that you were satisfied that the hair was a 22 trunk hair as distinguished from a pubic hair, and that 23 it was a contaminant? 24 DR. CHARLES SMITH: I don't remember any 25 of my conversation with Dr. Cairns about that.

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1 MS. LINDA ROTHSTEIN: Let's look, then, 2 at the response to Ms. Doris' letter of January the 16th, 3 2002. Your April 11th response at Tab 26 of Volume I; 4 PFP146464. 5 DR. CHARLES SMITH: Yes, I have that. 6 MS. LINDA ROTHSTEIN: Are we agreed, Dr. 7 Smith, that this was likely written after your meeting 8 with Dr. Cairns? 9 DR. CHARLES SMITH: Well, if -- if the 10 date range that you've given me for Dr. Cairns is 11 correct, then I -- I accept that. 12 MS. LINDA ROTHSTEIN: And on page 3 of 13 that letter; at least' of the document, under 1(c): 14 "Please indicate what samples were 15 taken." 16 And answering that question, you say -- 17 the question that you hadn't satisfactorily answered at 18 the outset, and in your December 11th letter -- 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: 21 "The only physical evidence that was 22 present was a hair, or a fibre --" 23 DR. CHARLES SMITH: Mm-hm. 24 MS. LINDA ROTHSTEIN: 25 " -- that was allegedly noted to have been

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1 seen on the lower abdomen at the end of 2 resuscitation at Peterborough Civic 3 Hospital." 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: If you knew then, 6 Dr. Smith -- if you believed then, that what you had seen 7 was a trunk hair, that you were confident was not a pubic 8 hair, why didn't you say so? 9 DR. CHARLES SMITH: I can't remember why 10 I would use generic language, not specific language. I 11 simply can't remember. 12 MS. LINDA ROTHSTEIN: Were you trying to 13 be vague? 14 DR. CHARLES SMITH: No. No. 15 MS. LINDA ROTHSTEIN: Were you trying to 16 reduce the significance of this issue? 17 DR. CHARLES SMITH: I -- I can't remember 18 that at all. 19 MS. LINDA ROTHSTEIN: Again, Dr. Smith, 20 this was your regulator. 21 DR. CHARLES SMITH: Yes, I understand 22 that. 23 MS. LINDA ROTHSTEIN: And I appreciate 24 that a letter written to the CPSO is not sworn testimony, 25 but was the College not entitled to the very best

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1 information that you had and all of it? 2 DR. CHARLES SMITH: I acknowledge that I 3 made a mistake, and I should have been -- been more 4 explicit in my -- in my thinking and decision-making, 5 yes. And my -- 6 MS. LINDA ROTHSTEIN: And in -- and in 7 your answer. 8 DR. CHARLES SMITH: -- in my -- my 9 observations, yes. Yes. I -- I recognize that, yes. 10 MS. LINDA ROTHSTEIN: In your formal, 11 written response to your regulator. 12 DR. CHARLES SMITH: Yes. I recognize 13 that that was not as complete as -- as it should have 14 been. 15 MS. LINDA ROTHSTEIN: And this 16 explanation that you give, that it was allegedly noted to 17 have been seen on the lower abdomen -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. LINDA ROTHSTEIN: -- at the end of 20 the resuscitation at Peterborough Civic Hospital. You 21 and I have looked at those notes, Dr. Smith. 22 DR. CHARLES SMITH: Mm-hm. 23 MS. LINDA ROTHSTEIN: That's not what 24 they say. 25 DR. CHARLES SMITH: Yeah. At this point,

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1 I -- I can't remember the -- the basis or the nature of 2 that statement at all; whether I had recollection of the 3 emergency record or not. I -- I simply can't remember. 4 MS. LINDA ROTHSTEIN: 5 "Even though it was reported to me as a 6 contaminant." 7 So you don't say there that you decided 8 that it was -- 9 DR. CHARLES SMITH: Mm-hm. 10 MS. LINDA ROTHSTEIN: -- that it was your 11 decision. You say it was reported to you that way. 12 DR. CHARLES SMITH: Mm-hm. Yes. 13 MS. LINDA ROTHSTEIN: By whom? 14 DR. CHARLES SMITH: Well, this is -- this 15 is again my understanding, that it was of no relevance to 16 the police, and, so the "contaminant" is my word. 17 I -- I should have -- I should have said 18 it was reported to me to be irrelevant, or used some 19 other word that's not -- that's not my language, but was 20 -- was closer to the relevant/irrelevant, significant/ 21 insignificant kind of terminology. 22 MS. LINDA ROTHSTEIN: 23 "I collected, sealed, and stored it 24 appropriately. I brought this physical 25 evidence to the attention of police

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1 Officer Kirkland, who was at the 2 autopsy in the role of forensic 3 identification officer and was 4 therefore, involved in the 5 investigation of Jenna's death." 6 Really? Is that your evidence, having 7 heard what Detective Constable Kirkland says? 8 DR. CHARLES SMITH: That -- that was my 9 best recollection, yes. 10 MS. LINDA ROTHSTEIN: What about today, 11 sir? 12 DR. CHARLES SMITH: Well, if -- if he has 13 better -- a better recollection than mine, then -- then I 14 accept that. 15 MS. LINDA ROTHSTEIN: He included it in 16 his photographs of the body. When did you figure out 17 that there was a photograph of this hair, Dr. Smith? 18 DR. CHARLES SMITH: Oh, I don't know that 19 I had seen copies of the photographs, but I was told 20 that it was in photographs. 21 MS. LINDA ROTHSTEIN: I see. And was it 22 from that that you concluded; that -- does this suggest - 23 - is this meant to suggest that the officer had 24 intentionally photographed it but then chosen not to 25 accept it.

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1 Is that what you were implying? 2 DR. CHARLES SMITH: I -- I don't know 3 what the nature of -- of the photographs were because I 4 didn't have them. But it was my understanding that it 5 was in the photographs, but I can't tell you more than 6 that. 7 MS. LINDA ROTHSTEIN: But it is not your 8 evidence that this officer took a photograph of that hair 9 because he understood that it ought to be photographed. 10 Isn't that true? 11 DR. CHARLES SMITH: That's true. Yes, I 12 accept that statement. 13 MS. LINDA ROTHSTEIN: And so if this 14 language suggests that he did that purposefully, this 15 language is very poor? 16 DR. CHARLES SMITH: Yes, I acknowledge 17 that. 18 MS. LINDA ROTHSTEIN: 19 "Following discussions with the 20 Regional Coroner, Dr. Peter Clark, the 21 blood and stomach contents and so on 22 were submitted." 23 DR. CHARLES SMITH: Mm-hm. 24 MS. LINDA ROTHSTEIN: You do tell us 25 actually, what you had available to you on the second

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1 page or the next page -- page 4 of that document. 2 "In this case, the information 3 available to me was the history 4 provided by the coroner, Dr. 5 Thompson..." 6 And by the way, Dr. Smith, you say nothing 7 there about the history from Dr. Thompson as being 8 relevant to your decision-making on this issue. You 9 accept that? 10 DR. CHARLES SMITH: Yes, I -- I simply 11 indicated that, yes. 12 MS. LINDA ROTHSTEIN: "...his warrant for 13 post-mortem examination, a photocopy of 14 the emergency record from Peterborough 15 Civic Hospital, including the EKG 16 strips, the nursing notes and the list 17 of medications administered during 18 resuscitation." 19 Dr. Smith, those were the documents you 20 and I began this series of questions by looking at, is it 21 not? 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: Nothing more? 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: There was nothing

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1 anywhere that suggested that this hair had been found on 2 the abdomen as opposed to the vulva, isn't that true, Dr. 3 Smith? 4 DR. CHARLES SMITH: I, at this point, 5 can't -- can't exactly remember where it was found, but 6 I thought it was -- I thought it was over the lower 7 abdomen onto the mons pubis, but I can't -- at this 8 point, I can't remember. So whatever the photographic 9 evidence is would be more accurate. But it -- to me, it 10 was lower abdomen and mons pubis or the pubic bone. 11 MS. LINDA ROTHSTEIN: Dr. Smith, the 12 first time we have any record that you described this 13 hair as a trunk hair in contra-distinction -- 14 DR. CHARLES SMITH: Mm-hm. 15 MS. LINDA ROTHSTEIN: -- to a pubic hair, 16 is in answer to questions about it when you met with one 17 (1) of the College's assessors, Dr. Stephen Cole 18 (phonetic), in June of 2002. 19 Do you remember meeting with Dr. Cole? 20 DR. CHARLES SMITH: I do, yes. 21 MS. LINDA ROTHSTEIN: And the notes that 22 were made of that interview are at Tab 31 of this binder 23 at 147797. 24 DR. CHARLES SMITH: Yes, I have that. 25 MS. LINDA ROTHSTEIN: You remember that

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1 Ms. Langford accompanied you to that meeting? 2 DR. CHARLES SMITH: Yes, I do. 3 MS. LINDA ROTHSTEIN: Dr. Cole was the 4 interviewer? 5 DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: Ms. Elizabeth Doris 7 was there -- 8 DR. CHARLES SMITH: Yes. 9 MS. LINDA ROTHSTEIN: -- to take notes 10 and otherwise? 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: And -- well, 13 actually, Ms. Ellen Spiegel was the recording secretary 14 who took these notes? 15 DR. CHARLES SMITH: Yes. Yes. Yeah. 16 MS. LINDA ROTHSTEIN: And do you have any 17 reason to believe these notes are inaccurate? I 18 recognize they're not verbatim, but have you read 19 anything in them that strikes you as completely contrary 20 to something you said? 21 DR. CHARLES SMITH: At this point I can't 22 think of that, no. Mm-hm. 23 MS. LINDA ROTHSTEIN: Look at page 6, at 24 the top. 25 DR. CHARLES SMITH: Mm-hm.

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1 MS. LINDA ROTHSTEIN: In answer to the 2 question number 6 at the bottom of the page: 3 "Did you perform a rape kit with 4 swabs?" 5 DR. CHARLES SMITH: Mm-hm. 6 MS. LINDA ROTHSTEIN: You are recorded as 7 having said: 8 "I've gone back to our area where we 9 log in the actual seal numbers on 10 things; have logged in the seal 11 numbers; don't have any recollection 12 that I did an actual vulva area." 13 What does that mean? 14 DR. CHARLES SMITH: I'm not sure what 15 that means. 16 MS. LINDA ROTHSTEIN: Does that mean you 17 didn't actually examine the vulva area? 18 DR. CHARLES SMITH: Oh, no. No, the 19 vulva area was very carefully examined. No. 20 And in fact, the reason that I sought Dr. 21 Huyer's assistance was because I had an uncertainty as to 22 one (1) observation, and -- and that was -- that was for 23 me the -- the most important uncertainty I had. 24 Everything else I was quite confident. I saw no evidence 25 of injury, so no, there -- I had -- I had carefully

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1 examined the vulva area for injury. 2 MS. LINDA ROTHSTEIN: You then say: 3 "Results of hair how now show it was a 4 truncal hair, not pubic hair. The hair 5 was located not over the vulva. It was 6 identified on the surface at the end of 7 the pubic area at the end of the 8 resuscitation." 9 And I note the language there, that the 10 "results of the hair now show". Were you not referring 11 to the CNS result -- CFS, excuse me -- 12 DR. CHARLES SMITH: Mm-hm. 13 MS. LINDA ROTHSTEIN: -- results that had 14 been done by June of that year? 15 DR. CHARLES SMITH: Yes, I was -- yeah, I 16 was aware from Dr. Cairns that -- that they had indicated 17 it was not a pubic hair. 18 MS. LINDA ROTHSTEIN: So, you're telling 19 Dr. Cole what you understood from Dr. Cairns -- 20 DR. CHARLES SMITH: Mm-hm. 21 MS. LINDA ROTHSTEIN: -- about the 22 results of the forensic examination that had been done by 23 the Centre for Forensic Sciences, have I got that right? 24 DR. CHARLES SMITH: That's correct, yeah. 25 MS. LINDA ROTHSTEIN: And you believed

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1 that those results indicated that it was a truncal hair 2 and not a pubic hair -- 3 DR. CHARLES SMITH: That was my 4 understanding. 5 MS. LINDA ROTHSTEIN: -- and that, 6 indeed, on -- those with the special training and 7 experience who could make those decisions and those 8 distinctions had come to that conclusion. 9 DR. CHARLES SMITH: I -- I don't know 10 anything about the process, but that was -- that was what 11 was communicated to me by Dr. Cairns, yes. 12 MS. LINDA ROTHSTEIN: And, Dr. Smith, 13 having looked at the progress -- 14 DR. CHARLES SMITH: Mm-hm. 15 MS. LINDA ROTHSTEIN: -- of all of your 16 statements -- 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: -- under oath, in 19 writing, and otherwise, about this issue, do you agree 20 with me that this is the first record that we have that 21 indicates that you described this hair as truncal and not 22 pubic on June 22nd, 2002 -- June 18th? 23 DR. CHARLES SMITH: That is the first 24 time I used the term "truncal", yes. I believe I had 25 indicated that I had not seen a pubic hair at autopsy on

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1 the preliminary hearing, if I -- if I -- 2 MS. LINDA ROTHSTEIN: No, you didn't. 3 DR. CHARLES SMITH: Did I not in that 4 question in see -- 5 MS. LINDA ROTHSTEIN: You just said you 6 didn't know anything about that; that was news to you. 7 DR. CHARLES SMITH: Oh, I'm sorry. Okay. 8 I -- I thought -- 9 MS. LINDA ROTHSTEIN: When asked the 10 question, you said, It's news to me, you're telling me 11 something I don't know. 12 DR. CHARLES SMITH: Okay, I'm -- I'm 13 sorry, I was just -- I was thinking that -- that I'm -- I 14 might have been asked whether I saw a pubic hair, okay. 15 MS. LINDA ROTHSTEIN: You were not 16 directly asked that question. 17 DR. CHARLES SMITH: Okay, I'm sorry. 18 Then my -- my recollection is wrong. 19 MS. LINDA ROTHSTEIN: Mr. Commissioner, 20 might this be appropriate time for our afternoon break? 21 COMMISSIONER STEPHEN GOUDGE: All right, 22 well, we'll rise, then, for fifteen (15) minutes. 23 24 --- Upon recessing at 3:18 p.m. 25 --- Upon resuming at 3:37 p.m.

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1 2 THE REGISTRAR: All rise. Please be 3 seated. 4 COMMISSIONER STEPHEN GOUDGE: Ms. 5 Rothstein...? 6 7 CONTINUED BY MS. LINDA ROTHSTEIN: 8 MS. LINDA ROTHSTEIN: Dr. Smith, you'll 9 be pleased to know I'm almost finished with my questions 10 on this issue. But if you would look at Tab 23 of Volume 11 I, please, 074279. 12 We have the report of March 28th, 2002 13 from Johanne Almer, who is reporting as the Assistant 14 Section Head of Biology, on the examination that was 15 ultimately done on the hair that was retrieved from your 16 office. 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: And her conclusion 19 says that: 20 "This item consisted of a fragment of 21 human trunk hair, ie. chest or pubic, 22 likely of Caucasian origin. It was 23 without root and is, therefore, not 24 suitable for nuclear DNA analysis." 25 In fact, the conclusion from the Centre

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1 for Forensic Sciences was rather different than what you 2 suggested to Dr. Cole, was it not? 3 DR. CHARLES SMITH: Yes, my information 4 to Dr. Cole was that -- that it was truncal and not 5 pubic. That's what I understood had been communicated to 6 me by Dr. Cairns. 7 MS. LINDA ROTHSTEIN: But it was -- would 8 appear somewhere in that communication -- 9 DR. CHARLES SMITH: Mm-hm. 10 MS. LINDA ROTHSTEIN: -- chain, there was 11 a misunderstanding, would it not? 12 DR. CHARLES SMITH: Yes. Yes. 13 MS. LINDA ROTHSTEIN: And indeed, that 14 the Centre was not able to distinguish between a chest or 15 a pubic hair in this case? 16 DR. CHARLES SMITH: I -- I see that, yes. 17 Yeah. 18 MS. LINDA ROTHSTEIN: There's other 19 information in the record that makes that abundantly 20 clear, Dr. Smith, but I take it that you don't quarrel 21 with that? 22 DR. CHARLES SMITH: No, no. I -- I have 23 -- I don't have expertise in such analysis, no. 24 MS. LINDA ROTHSTEIN: 25 "Due to the less discriminating nature

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1 of trunk hairs and partial hairs, and 2 the length of time which would exist 3 between the time this hair was found 4 and any comparison hair samples 5 collected, microscopic comparison would 6 be of little or no value." 7 So it appears that one (1) of the limiting 8 conditions to its more specific examination was the fact 9 that there had been a long period of time that transpired 10 between its examination and its seizure, right? 11 DR. CHARLES SMITH: I see that, yes. 12 Yes. 13 MS. LINDA ROTHSTEIN: Dr. Smith, your 14 notes: We know that on October the 6th, 2004 -- this is 15 in the overview report -- your counsel provided your 16 handwritten notes of Jenna's autopsy to Al O'Marra, who 17 was counsel for the OCCO. 18 I don't expect you to know the precise 19 date on which that occurred, but does that suggest, sir, 20 that you first retrieved your handwritten notes of that 21 autopsy some -- at some point very close to October the 22 6th, of 2004? 23 DR. CHARLES SMITH: I -- I have no 24 specific recollection of -- of the events surrounding 25 that. No.

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1 MS. LINDA ROTHSTEIN: Do you remember 2 finding them? 3 DR. CHARLES SMITH: No, I don't. 4 MS. LINDA ROTHSTEIN: Do you remember who 5 found them? 6 DR. CHARLES SMITH: I'm not even certain 7 it was me who found them. No, I don't remember. 8 MS. LINDA ROTHSTEIN: You can't assist us 9 at all, as to how they were found; where they were found; 10 why they were found? 11 DR. CHARLES SMITH: No, I can't. I have 12 no -- no recollection of that whatsoever. I -- I rem -- 13 MS. LINDA ROTHSTEIN: It's not very long 14 ago, though, Dr. Smith. I'm struggling to understand 15 that memory gap please. 16 DR. CHARLES SMITH: I -- 17 MS. LINDA ROTHSTEIN: I understand ten 18 (10) years ago. 19 DR. CHARLES SMITH: Mm-hm. Mm-hm. As I 20 recall, their -- their existence was -- or I was informed 21 of their existence by -- by one (1) of my counsel. 22 MS. LINDA ROTHSTEIN: Okay. So you don't 23 believe you were at all instrumental in their location; 24 you, yourself? 25 DR. CHARLES SMITH: No, and -- and I

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1 think that I had given up my file on that sometime 2 earlier -- I think. 3 MS. LINDA ROTHSTEIN: Okay. And you 4 can't assist us, therefore, as to why they took so very 5 long to find? 6 DR. CHARLES SMITH: No, I don't know at 7 all. I don't un -- I have no recollection of that 8 process at all. 9 MS. LINDA ROTHSTEIN: But you think 10 that's because you weren't yourself involved in it? 11 DR. CHARLES SMITH: I think that's 12 correct, but I could be wrong. 13 MS. LINDA ROTHSTEIN: Okay. Dr. Smith, I 14 want to review with you until -- for the next little 15 while, and we can close off on this today, the other 16 retrieval issue, which was the slides and tissue blocks 17 in the Mullins-Johnson case. 18 And at page 100 of your summary, sir, you 19 deal with this issue. 20 21 (BRIEF PAUSE) 22 23 MS. LINDA ROTHSTEIN: I'm just looking -- 24 I've got the page number, but -- here we go. Page 101. 25 It should be at Tab 5. Have you got that?

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1 DR. CHARLES SMITH: Yes. Yes, I have 2 this. Mm-hm. Mm-hm. 3 MS. LINDA ROTHSTEIN: Lost tissue slides. 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: 6 "By time he was approached by Dr. 7 Rasaiah in 2003 for assistance in 8 locating slides, approximately nine (9) 9 years after the trial, Dr. Smith had no 10 memory of his involvement in this case. 11 In 1993/1994, Dr. Smith had not seen 12 Valin's body; had not authored a post- 13 mortem; had not been consulted by the 14 police in respect of the charges 15 against Mr. Mullins-Johnson; and had 16 not testified at the preliminary 17 inquiry." 18 And I accept that the second sentence 19 fairly reflects all of the facts that we know, Dr. Smith. 20 DR. CHARLES SMITH: Yes. 21 MS. LINDA ROTHSTEIN: But the first 22 statement, that at the time you were approached by Bob 23 Rasaiah in 2003, you had no memory at all of your 24 involvement in this case does raise some questions. 25 Had you been involved in any other cases

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1 as a consultant to Dr. Rasaiah? 2 DR. CHARLES SMITH: I -- I couldn't tell 3 you that. I don't know. 4 MS. LINDA ROTHSTEIN: Think about it. 5 Does it stand to your memory right now that you had been? 6 DR. CHARLES SMITH: I -- I can't say yes 7 or no. I just don't recall. 8 MS. LINDA ROTHSTEIN: Dr. Smith, had you 9 been involved in other cases of a four (4) year old who 10 you believed was sodomized and then murdered by her 11 uncle? 12 DR. CHARLES SMITH: No, I certainly had - 13 - no, that's unique. 14 MS. LINDA ROTHSTEIN: And we appreciate 15 that you testified some years before, but didn't the 16 facts of that case stand out? 17 DR. CHARLES SMITH: I mean, I had some 18 recollection of it; I certainly didn't have a -- a clear 19 recollection of it. 20 MS. LINDA ROTHSTEIN: That's fine. 21 DR. CHARLES SMITH: Mm-hm. 22 MS. LINDA ROTHSTEIN: But you had some -- 23 DR. CHARLES SMITH: Yeah. 24 MS. LINDA ROTHSTEIN: -- recollection 25 that you had given evidence in a trial --

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1 DR. CHARLES SMITH: Trial. 2 MS. LINDA ROTHSTEIN: -- in which you had 3 opined -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: -- that this young 6 girl had been sodomized and then murdered by her uncle? 7 DR. CHARLES SMITH: Yeah. I had some 8 remembrance of that, yes. 9 MS. LINDA ROTHSTEIN: Okay. In June 10 2003, Dr. Rasaiah called you about the slides. If you 11 look at Tab 15 in Volume I, this will refresh your 12 memory. It's PFP059530. 13 DR. CHARLES SMITH: Yes, I see this. 14 MS. LINDA ROTHSTEIN: And it's a letter 15 from Dr. Rasaiah to you -- or actually, it's not, it's 16 copied to you. 17 DR. CHARLES SMITH: Yeah. 18 MS. LINDA ROTHSTEIN: Forgive me. 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: And it says in it 21 that on the 3rd of June, 2003, Dr. Rasaiah telephoned 22 you, who indicated that you would look for the slides and 23 box. 24 Do you remember getting that call, Dr. 25 Smith?

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1 DR. CHARLES SMITH: No, I don't. 2 MS. LINDA ROTHSTEIN: There's no doubt 3 though that you did? 4 DR. CHARLES SMITH: I -- I can't dispute 5 this at all, no. 6 MS. LINDA ROTHSTEIN: And it was followed 7 up with a letter the next day -- 8 DR. CHARLES SMITH: Yes. 9 MS. LINDA ROTHSTEIN: -- that you were 10 copied on? 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: Did you go looking 13 for the slides and tissue blocks as you said you would? 14 DR. CHARLES SMITH: I -- I believe that I 15 -- that I looked for them in an area where I would expect 16 to find old cases if they were in my office, yes. That's 17 my recollection but I can't tell you when I did that. 18 MS. LINDA ROTHSTEIN: And Dr. Rasaiah 19 gave you some more information. He made it clear that it 20 was on June 22nd, 1994, that the slides and tissue blocks 21 had been sent to you at the request of the Crown 22 attorney, Mr. Glen Wasyliniuk, and that the records show 23 that the microscopic slides and tissue blocks were not 24 returned. 25 DR. CHARLES SMITH: Yes, I see that.

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1 Yeah. 2 MS. LINDA ROTHSTEIN: So you took that -- 3 note of that, did you, sir? 4 DR. CHARLES SMITH: Well, that -- that 5 didn't ring a bell as I -- as I recall, but -- 6 MS. LINDA ROTHSTEIN: Did you -- 7 DR. CHARLES SMITH: -- but I see that 8 information, yeah. I don't recall that it helped me 9 remember the case at all. 10 MS. LINDA ROTHSTEIN: Did you ask your 11 assistant to help you? 12 DR. CHARLES SMITH: I have no knowledge 13 of -- of whether I did or not. 14 MS. LINDA ROTHSTEIN: Would that have 15 been your practice? 16 DR. CHARLES SMITH: Sometimes yes, 17 sometimes no. 18 MS. LINDA ROTHSTEIN: In what 19 circumstances yes? In what circumstances no? 20 DR. CHARLES SMITH: Sometimes -- any of 21 the support staff would -- would generally not be aware 22 of -- of what was in my office. So if I was looking for 23 it in my office, in general -- and I can't remember 24 specifically here -- in general, I would be the one (1) 25 who would -- who would look for it first.

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1 From time to time, I would ask for the 2 assistance of one (1) of the support staff and simply 3 say, I'm looking for something, I can't find it. Do you 4 know where it might be, and they could look in my office 5 and elsewhere. 6 MS. LINDA ROTHSTEIN: Surely, these were 7 circumstances in which you would seek help if you 8 couldn't immediately locate them, Dr. Smith. 9 Your office was untidy, correct? 10 DR. CHARLES SMITH: Mm-hm. Yes, it was. 11 MS. LINDA ROTHSTEIN: Disorganized? 12 DR. CHARLES SMITH: Very, yes. 13 MS. LINDA ROTHSTEIN: You knew that 14 perfectly well? 15 DR. CHARLES SMITH: Yes. 16 MS. LINDA ROTHSTEIN: Your memory of the 17 case was dim, you've told us? 18 DR. CHARLES SMITH: Yes. 19 MS. LINDA ROTHSTEIN: So wasn't this a 20 priority that would suggest that you ought to obtain 21 whatever assistance you could to help you identify this 22 material as quickly as possible? 23 DR. CHARLES SMITH: I can't say that that 24 was my reaction or my thinking at the time. I simply 25 don't recall.

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1 MS. LINDA ROTHSTEIN: Why wasn't this 2 important, if it wasn't? 3 DR. CHARLES SMITH: I -- I can't recall. 4 I just don't remember -- 5 MS. LINDA ROTHSTEIN: You never got back 6 to Dr. Rasaiah, did you? 7 DR. CHARLES SMITH: I can't recall, but 8 if he said I didn't, then I can accept that. 9 MS. LINDA ROTHSTEIN: Because Dr. Rasaiah 10 called you again on October the 14th, 2003 and left you a 11 message with your secretary. We see that at Tab 16. 12 DR. CHARLES SMITH: Yes. 13 MS. LINDA ROTHSTEIN: And he writes to 14 Mr. Downes, the Crown counsel -- 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: -- and says that: 17 "I called Dr. Charles Smith's office on 18 the 14th of October at 10:00 a.m..." 19 This is 059528. 20 DR. CHARLES SMITH: Yes. 21 MS. LINDA ROTHSTEIN: 22 "...and left a message with his 23 secretary, but Dr. Charles Smith did 24 not return my call." 25 DR. CHARLES SMITH: Mm-hm.

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1 MS. LINDA ROTHSTEIN: He says that. 2 DR. CHARLES SMITH: Yes, I see that. 3 MS. LINDA ROTHSTEIN: Is it likely that 4 your assistant indeed passed on that message? 5 DR. CHARLES SMITH: It's very likely, 6 yes. 7 MS. LINDA ROTHSTEIN: You agree, do you 8 not, that all of your assistants were very conf -- cons - 9 - conscientious? 10 DR. CHARLES SMITH: Yes. 11 MS. LINDA ROTHSTEIN: On October 31, the 12 next tab, sir, 059524, of 2003, Mr. Downes himself, Crown 13 counsel, wrote to you and says: 14 "Dear Dr. Smith, I understand that in 15 June 2003, Dr. Rasaiah contacted you 16 about these slides. The Crown has been 17 asked to provide them to defence 18 counsel who are looking into Mr. 19 Mullins-Johnson's conviction for the 20 murder of Valin. I would be very 21 grateful if you could advise me of your 22 knowledge as to the whereabouts of this 23 material or could provide them to me so 24 that they can be given to the defence 25 counsel."

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1 DR. CHARLES SMITH: Yes, I see that. 2 MS. LINDA ROTHSTEIN: How common was it 3 to receive a letter like this, Dr. Smith? 4 DR. CHARLES SMITH: Not common. 5 MS. LINDA ROTHSTEIN: Did you think it 6 was important? 7 DR. CHARLES SMITH: Yes. 8 MS. LINDA ROTHSTEIN: Did you call Mr. 9 Downes? 10 DR. CHARLES SMITH: I don't believe I 11 did, no. 12 MS. LINDA ROTHSTEIN: Why not? 13 DR. CHARLES SMITH: I don't have specific 14 recollection. I do know that I had looked for the slides 15 and hadn't found them, but I have no specific 16 recollection of responding or not responding or reasons 17 why I -- I did not. 18 MS. LINDA ROTHSTEIN: Wasn't it important 19 to you then to, at least, return the request for 20 information by calling Mr. Downes and saying, so far, you 21 hadn't been able to find them? 22 DR. CHARLES SMITH: That was a mistake 23 and that was a serious mistake that I made, and I 24 shouldn't have made it. 25 MS. LINDA ROTHSTEIN: Was it a low

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1 priority, Dr. Smith -- a request like this? 2 DR. CHARLES SMITH: I don't think I would 3 say it's a low priority now. I -- I think the better 4 explanation was that I looked, I didn't see it, and -- 5 and I came to the conclusion that I likely didn't have 6 it, but that's a reflection of my documentation. 7 I -- I should have logged in and logged 8 out samples, even if I hadn't written a report on them. 9 MS. LINDA ROTHSTEIN: The next tab, sir, 10 059523, we have a memo to file which you wouldn't have 11 seen at the time, dated December the 29th, 2003, 12 recording a telephone conversation that Mr. Downes had 13 with you at 9:45 on that day -- 14 DR. CHARLES SMITH: Yes, I see that. 15 MS. LINDA ROTHSTEIN: -- in which he 16 records that he requested -- he spoke to you and that you 17 requested your assistant to search the archive for the 18 material and that the first search had proved fruitless. 19 "He thinks the samples may not be 20 there. He will take another look when 21 his assistant returns next week." 22 DR. CHARLES SMITH: Mm-hm. 23 MS. LINDA ROTHSTEIN: 24 "I asked Dr. Smith to let me know by 25 way of letter what his final position

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1 was on the whereabouts of the material. 2 He agreed to do so." 3 Is that what you told him? 4 DR. CHARLES SMITH: I don't recall the 5 conversation, but I have no reason to dispute it. 6 MS. LINDA ROTHSTEIN: Was it true what 7 you said to Mr. Downes? 8 DR. CHARLES SMITH: That I had searched 9 for the materials, do you mean? 10 MS. LINDA ROTHSTEIN: That you had 11 requested your assistant -- 12 DR. CHARLES SMITH: Yeah. 13 MS. LINDA ROTHSTEIN: -- to search the 14 archives. 15 DR. CHARLES SMITH: Yeah. At -- at some 16 point, yeah, we had searched -- I, or with the assistant 17 of someone else -- had gone downstairs to the storage 18 area -- to the archive area -- and looked in an area 19 where unaccessioned, or cases that came in that may not 20 be given an HSC number were placed. 21 So I -- I do know that that occurred. So 22 I -- I think that that is likely what I'm referring to, 23 but I can't remember exactly when it was that I went 24 down. 25 MS. LINDA ROTHSTEIN: Are you referring

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1 to Maxine Johnson? 2 DR. CHARLES SMITH: I don't even recall 3 who it was with that I went down. It -- 4 MS. LINDA ROTHSTEIN: Who else would it 5 have been? 6 DR. CHARLES SMITH: It could have been 7 one (1) of the autopsy assistants, because they also were 8 familiar with the -- with the storage area. 9 MS. LINDA ROTHSTEIN: Dr. Smith, I know 10 you know that Ms. Johnson testified before this inquiry. 11 You made some comments about her on Monday -- and her 12 testimony. 13 She testified that you never asked her to 14 look in the archives. 15 DR. CHARLES SMITH: That could well be, 16 yes. 17 MS. LINDA ROTHSTEIN: And that she 18 wouldn't have looked there because she would have known 19 that they would not have been filed there because this 20 was a consultation. 21 DR. CHARLES SMITH: No. In the archives, 22 we -- where we had cases that came in on consultations 23 that we kept -- that we had -- that we had given an 24 accession number -- they were filed there. 25 But there was also a -- a storage area --

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1 a box of unaccessioned cases as it were -- orphaned 2 materials that for whatever reason over the years had 3 been -- had not been accessioned but were in the 4 department. 5 And, so they were placed into -- into an 6 unaccessioned -- just a group of materials that were 7 unaccessioned -- and, so I checked those materials. 8 I -- I can't remember who it was with, and 9 -- and I didn't even know the -- the location of those 10 unaccessioned materials. 11 It was an assistant who said, Oh yes, 12 there is something, and -- you know, communicated to me 13 that there was -- there was a possibility it was -- it 14 was in the -- the archival storage area. 15 MS. LINDA ROTHSTEIN: But if what you're 16 saying is true, Dr. Smith, and you searched the one (1) 17 area outside your office where there was some inventory 18 of unaccessioned materials -- 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: -- and if they 21 could -- and if it could not be found there, then the 22 only other place to, logically, look was your office. Am 23 I right? 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: And are we agreed

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1 that you never asked Ms. Johnson or any other assistant 2 to help you look in your office? 3 DR. CHARLES SMITH: I -- I don't have 4 specific recollection on whether I asked anyone or not to 5 look in my office with me. 6 MS. LINDA ROTHSTEIN: You accept Ms. 7 Johnson's word that you did not ask her? 8 DR. CHARLES SMITH: I can accept that, 9 yes. 10 MS. LINDA ROTHSTEIN: Why didn't you ask 11 her? Your office was messy. You didn't know where 12 everything was. Isn't that true? 13 DR. CHARLES SMITH: That's true. 14 MS. LINDA ROTHSTEIN: So why didn't you 15 ask her to help you look in your office, Dr. Smith; the 16 most logical place to look? 17 DR. CHARLES SMITH: I can't -- I can't 18 recall my thinking on that at all. 19 MS. LINDA ROTHSTEIN: Did you respond to 20 Mr. Downes request? Did you send him a letter, and say, 21 I can find it/I can't find it. 22 "He will let me know by way of letter 23 what his final position was." 24 DR. CHARLES SMITH: No. 25 MS. LINDA ROTHSTEIN: Did you respond --

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1 DR. CHARLES SMITH: No. 2 MS. LINDA ROTHSTEIN: -- one (1) way or 3 the other? 4 DR. CHARLES SMITH: No, I don't believe 5 it did. I was wrong on that. 6 MS. LINDA ROTHSTEIN: But again, Dr. 7 Smith, why wasn't it part of your customary and ordinary 8 practice to pay, at least, the courtesy to Crown counsel 9 and respond to this important question? 10 DR. CHARLES SMITH: I -- I can't -- I 11 can't remember these events well enough to answer 12 specifically what I -- but I should have, and I 13 acknowledge I should have. 14 MS. LINDA ROTHSTEIN: He follows up with 15 you on January the 28th of 2004 -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- because a month 18 had gone by, and you hadn't called him back. 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: 059386. 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: 23 "I understand from our recent telephone 24 conversation that you have, so far, 25 been unable to locate any of the slides

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1 examined by you in this case." 2 DR. CHARLES SMITH: That's correct. 3 MS. LINDA ROTHSTEIN: 4 "I would greatly appreciate it if you 5 could confirm, in writing, whether this 6 continues to be the case, and whether 7 if the slides are not available, you 8 have any knowledge of whether the 9 tissue block from the autopsy is 10 nevertheless available from which new 11 slides could be generated." 12 DR. CHARLES SMITH: Yes. I see that. 13 MS. LINDA ROTHSTEIN: 14 "I would appreciate hearing from you at 15 your earliest convenience." 16 DR. CHARLES SMITH: I see that, yes. 17 MS. LINDA ROTHSTEIN: What else could Mr. 18 Downes have said to you to bring home to you the 19 importance of, at least, picking up a pen and writing a 20 response, whatever it might say? 21 DR. CHARLES SMITH: I can't think of an 22 answer to your question. 23 MS. LINDA ROTHSTEIN: Dr. Smith, were you 24 even prepared to consider the possibility that the 25 opinion that you had reached, the Dr. Rasaiah had

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1 reached, that Dr. Mian had reached, even some of the 2 defence pathologists in case -- in this case had reached 3 might be in error? Were you open to that possibility in 4 January of 2004 or did it seem to you like a fishing 5 expedition? 6 DR. CHARLES SMITH: I don't remember. I 7 can't -- I can't answer that. 8 MS. LINDA ROTHSTEIN: You didn't respond 9 to that letter, did you? 10 DR. CHARLES SMITH: No, I didn't. 11 MS. LINDA ROTHSTEIN: On March 16th, 12 2004, it's Tab 20, 059349, Mr. Downes writes to you again 13 enclosing his letter of January the 28th: 14 "I would be grateful if I could receive 15 a reply at your earliest convenience. 16 Thank you very much." 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: This letter was 19 sent by registered mail, Dr. Smith. 20 DR. CHARLES SMITH: Yes, I understand 21 that. 22 MS. LINDA ROTHSTEIN: That's pretty 23 unusual? 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: It tends to grab

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1 one's attention, sir? 2 DR. CHARLES SMITH: Yes. 3 MS. LINDA ROTHSTEIN: Did it grab yours? 4 DR. CHARLES SMITH: I didn't respond. It 5 grabbed my attention. I remember, at some point, feeling 6 sick about the fact that -- no, I shouldn't say that -- 7 being -- being frustrated or upset that I had not located 8 them, and I had never bothered to keep a record of what I 9 may have done with them. 10 I was -- I certainly didn't believe it was 11 likely that I had them anymore, but I should have 12 responded and I didn't. 13 MS. LINDA ROTHSTEIN: Can you shed 14 anymore light on what you were feeling and why you 15 reacted by not reacting? 16 DR. CHARLES SMITH: I -- I can't, no. I 17 don't recall that any more than what I've said. 18 MS. LINDA ROTHSTEIN: By April the 13th 19 of 2004, Tab 21, 059346, you had not responded, and so 20 Mr. Downes is writing to defence counsel explaining that 21 the month before, he had sent you a registered letter 22 asking for a response to your earlier letter, and so on. 23 DR. CHARLES SMITH: Mm-hm. 24 MS. LINDA ROTHSTEIN: Do you see that? 25 DR. CHARLES SMITH: I see that, yes.

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1 MS. LINDA ROTHSTEIN: Six (6) months go 2 by, no one raises the issue with you? 3 DR. CHARLES SMITH: I don't believe so. 4 MS. LINDA ROTHSTEIN: Is it fair to say 5 that you did nothing about the search for this material 6 over that period? 7 DR. CHARLES SMITH: There was some 8 discussion with Dr. Cairns, but I can't remember what or 9 when. I do remember looking, once again, through areas 10 that I had already looked in, but I can't tell you when - 11 - when that was. 12 MS. LINDA ROTHSTEIN: Well, we have a 13 letter from Mr. Downes dated November 17th, 2004, in 14 which he enlists the assistance of the Chief Coroner, Dr. 15 McLellan, and it would have been as a result of that that 16 you met with Dr. Cairns and Ms. Zwolakowski, isn't that 17 right? 18 DR. CHARLES SMITH: That could be. I 19 just don't recall, yeah. 20 MS. LINDA ROTHSTEIN: And in fact, we 21 have at Tab 22, the log that was kept of their contact 22 with you indicating that on the 26th day of November of 23 2004, Dr. Cairns and Dorothy Zwolakowski met with you at 24 HSC to discuss locating the slides and blocks. 25 DR. CHARLES SMITH: Yes.

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1 MS. LINDA ROTHSTEIN: Does that accord 2 with your recollection, sir? 3 DR. CHARLES SMITH: I recall that, yes. 4 MS. LINDA ROTHSTEIN: And according to 5 the evidence we've heard from Dr. Cairns, they met with 6 you in the pathology boardroom, do you remember that? 7 DR. CHARLES SMITH: I believe that's 8 correct, yes. 9 MS. LINDA ROTHSTEIN: And Dr. Cairns, he 10 says, asked you about the materials. 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: And you said you 13 couldn't recall the case. 14 DR. CHARLES SMITH: The details of the 15 case, is that -- he said I couldn't recall the case? 16 MS. LINDA ROTHSTEIN: Right. 17 DR. CHARLES SMITH: I could have said 18 that, yes. 19 MS. LINDA ROTHSTEIN: Does that mean, Dr. 20 Smith, that you hadn't made any attempt to familiarize 21 yourself with the case since Dr. Rasaiah had first 22 contacted you in June of 2003? 23 DR. CHARLES SMITH: Well, I had -- I 24 didn't have a file on it and I -- and in checking our -- 25 our database, I hadn't seen a written report on it, so...

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1 MS. LINDA ROTHSTEIN: You didn't call Dr. 2 Rasaiah and say, Remind me about this case? 3 Nobody suggested to you, nor did you 4 remember that Dr. Mian had been involved in this case, 5 that you'd written a consultation report together? 6 DR. CHARLES SMITH: No, I -- I didn't 7 recall that consultation report. No. 8 MS. LINDA ROTHSTEIN: You didn't chase 9 down any of that information that would have been readily 10 available to you had you wanted to find it? 11 DR. CHARLES SMITH: Well, I looked for 12 information that I had because all I had was the 13 accession number from the original autopsy and I looked 14 to see if, we at Sick Kids, had given it a number, so 15 that I would be looking for a different number. 16 But in terms of the -- the actual details 17 of the case, I had -- I had a very vague recollection. 18 And you hadn't taken steps to try and refresh your 19 memory, beyond the vague recollection, in an effort to do 20 the work of locating this material? 21 DR. CHARLES SMITH: Well, I looked -- I 22 looked -- as I indicated, I looked to see if we had 23 logged it in so I could find it through our systems, and 24 -- and it had not been accessioned. So that was -- so 25 that -- that was what I did on the search part.

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1 And the other part, I didn't have any -- 2 any notes. I didn't have a consultation report that I 3 had written apart from that, so I had no information of 4 my own on that. 5 MS. LINDA ROTHSTEIN: Could have picked 6 up the phone and called Dr. Rasaiah and said, Help me, I 7 do a lot of consults. What were the circumstances of this 8 case? I've got a lot of them. 9 Why didn't you do that, Dr. Smith? 10 DR. CHARLES SMITH: I don't recall. 11 MS. LINDA ROTHSTEIN: We understand that 12 Maxine Johnson was then asked to locate the materials 13 after your visit with Dr. Cairns and Dorothy Zwolakowski? 14 DR. CHARLES SMITH: That's correct. 15 MS. LINDA ROTHSTEIN: And we understand 16 that she found your working file in a filing cabinet in 17 your office. 18 DR. CHARLES SMITH: Is -- is that what 19 she said? Yes. 20 MS. LINDA ROTHSTEIN: It is, sir. 21 DR. CHARLES SMITH: Okay, yeah. 22 MS. LINDA ROTHSTEIN: So here's the 23 question, Dr. Smith. You hadn't even looked in the 24 filing cabinet all this time? 25 DR. CHARLES SMITH: I had looked. Well,

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1 I had several filing cabinets, but I had looked, but I -- 2 I certainly didn't find information on it. 3 MS. LINDA ROTHSTEIN: You didn't find the 4 working file that Ms. Johnson was able -- 5 DR. CHARLES SMITH: Mm-hm. 6 MS. LINDA ROTHSTEIN: -- to find? 7 DR. CHARLES SMITH: No, I didn't see it. 8 MS. LINDA ROTHSTEIN: And then Ms. 9 Johnson found the slides in your office on November 29th, 10 2004? 11 DR. CHARLES SMITH: I see that, yes. 12 MS. LINDA ROTHSTEIN: 13 "Unfortunately, not all the slides and 14 none of the tissue blocks were 15 located." 16 Do you remember that? 17 DR. CHARLES SMITH: I don't remember that 18 at all, but my -- my specific memory is that I wasn't in 19 the hospital at that time. 20 And I do know I was away lecturing for a 21 period of time so it may have been that I was, in fact, 22 not in the city when that occurred. 23 MS. LINDA ROTHSTEIN: Where were you 24 lecturing, Dr. Smith? 25 DR. CHARLES SMITH: In -- in Central

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1 Europe. 2 MS. LINDA ROTHSTEIN: What period of time 3 was that, please? 4 DR. CHARLES SMITH: I -- 5 MS. LINDA ROTHSTEIN: Is that on your CV? 6 DR. CHARLES SMITH: It would be, I 7 believe. 8 MS. LINDA ROTHSTEIN: So that would be at 9 the back of your CV? 10 DR. CHARLES SMITH: Yes, it -- it was -- 11 yeah, it doesn't specify the dates. It just says 12 November. So it -- it could be before that time or it 13 could be in this period of time, yes. I don't remember. 14 MS. LINDA ROTHSTEIN: How long were you 15 gone? 16 DR. CHARLES SMITH: A week or two (2), I 17 believe. 18 MS. LINDA ROTHSTEIN: But at some point, 19 you came back and learned, did you not, that not all the 20 slides and none of the tissue blocks were located? 21 DR. CHARLES SMITH: That's my 22 understanding. That's my recollection, yes. 23 MS. LINDA ROTHSTEIN: Fair to say, Dr. 24 Smith, that, at that point, there was no doubt that the 25 materials had, indeed, been sent to you?

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1 DR. CHARLES SMITH: Yes. 2 MS. LINDA ROTHSTEIN: And that they had 3 not been returned by you? 4 DR. CHARLES SMITH: That's correct. 5 MS. LINDA ROTHSTEIN: In other words, the 6 missing material was clearly and squarely your 7 responsibility? 8 DR. CHARLES SMITH: That's -- that's 9 correct, yes. 10 MS. LINDA ROTHSTEIN: Did you search 11 every nook and cranny of your office in an effort to find 12 the still missing material? 13 DR. CHARLES SMITH: At this point in 14 time, it was my understanding from -- in fact, at the 15 point in time where Dr. Cairns came over and spoke to me 16 in November, we discussed whether or not I should do the 17 search or whether it should be done by someone else. 18 Because obviously, at this point, I was part of -- of a 19 problem and it may not be proper for me to be the 20 solution to that problem. 21 So, after this meeting, it was agreed that 22 I would not look for materials. I would not attempt to 23 do so, but rather that would be the responsibility of 24 others. 25 MS. LINDA ROTHSTEIN: Did you enlist

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1 Maxine Johnson to assist you in locating the material 2 thereafter? 3 DR. CHARLES SMITH: The -- the discussion 4 on who -- who would do it went on -- between Dr. Cair -- 5 as I understand, between Dr. Cairns and Dorothy 6 Zwolakowski and Maxine. 7 MS. LINDA ROTHSTEIN: Maxine Johnson 8 testified that an additional seven (7) slides were found 9 in your office on May the 6th, 2005 -- 10 DR. CHARLES SMITH: Yes. 11 MS. LINDA ROTHSTEIN: -- in a place that 12 she had previously, unsuccessfully, searched. 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: How can you explain 15 that? 16 DR. CHARLES SMITH: I have no idea. 17 MS. LINDA ROTHSTEIN: And that later that 18 same day she located the paraffin blocks and three (3) 19 additional slides, again, where she had previously 20 unsuccessfully searched. 21 DR. CHARLES SMITH: Well, they weren't in 22 my office, no. They were in a storage box that was 23 outside of my office, as I understand it. 24 MS. LINDA ROTHSTEIN: She looked where 25 she had looked before unsuccessfully and found them. Can

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1 you assist us at all, Dr. Smith? 2 DR. CHARLES SMITH: No, I wasn't looking 3 for them because I was under instruction not to, and she 4 showed me the storage box where the paraffin blocks came 5 from, which had been a storage box that -- that various 6 materials were -- were put into that were going down to - 7 - to the storage area. 8 But I don't -- I didn't have any specific 9 recollection of the materials in that storage box or -- 10 or who put them in. 11 MS. LINDA ROTHSTEIN: Commissioner, I'm 12 going to propose that we end today's examination early, 13 unless there's anything else that you think we should 14 accomplish this afternoon. 15 COMMISSIONER STEPHEN GOUDGE: No, I think 16 that's fine. We'll resume, then, at 9:30 tomorrow 17 morning. 18 MS. LINDA ROTHSTEIN: Thank you, Dr. 19 Smith. 20 21 (WITNESS RETIRES) 22 23 --- Upon adjourning at 4:11 p.m. 24 25

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