11 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 30th, 2008 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 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 ) 21 22 William Carter ) Hospital for Sick Children 23 Barbara Walker-Renshaw(np) ) 24 Kate Crawford ) 25
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Veena Verma (np) ) Association 4 Mara Greene (np) ) Criminal Lawyers' 5 Breese Davies (np) ) Association 6 Joseph Di Luca (np) ) 7 Jeffery Manishen ) 8 9 James Lockyer ) William Mullins-Johnson, 10 Alison Craig ) Sherry Sherret-Robinson and 11 Phillip Campbell (np) ) seven unnamed persons 12 Peter Wardle ) Affected Families Group 13 Julie Kirkpatrick ) 14 Daniel Bernstein ) 15 16 Louis Sokolov (np) ) Association in Defence of 17 Vanora Simpson (np) ) the Wrongly Convicted 18 Elizabeth Widner (np) ) 19 Paul Copeland (np) ) 20 21 Jackie Esmonde (np) ) Aboriginal Legal Services 22 Kimberly Murray (np) ) of Toronto and Nishnawbe 23 Sheila Cuthbertson (np) ) Aski-Nation 24 Julian Falconer (np) ) 25
41 APPEARANCES (cont'd) 2 Suzan Fraser ) Defence for Children 3 ) International - Canada 4 5 William Manuel (np) ) Ministry of the Attorney 6 Heather Mackay (np) ) General for Ontario 7 Erin Rizok (np) ) 8 Kim Twohig ) 9 Chantelle Blom (np) ) 10 11 Natasha Egan ) College of Physicians and 12 Carolyn Silver ) Surgeons 13 14 Michael Lomer (np) ) For Marco Trotta 15 Jaki Freeman ) 16 17 Emily R. McKernan (np) ) Glenn Paul Taylor 18 19 Michelle Booth (np) ) Robert Wood 20 21 22 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 CHARLES RANDALL SMITH, Resumed 4 5 Continued Cross-Examination by Ms. Linda Rothstein 6 6 7 8 9 Certificate of transcript 212 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:31 a.m. 2 3 THE REGISTRAR: All Rise. Please be 4 seated. 5 6 CHARLES RANDALL SMITH, Resumed 7 8 COMMISSIONER STEPHEN GOUDGE: Good 9 morning. 10 Ms. Rothstein...? 11 12 CONTINUED CROSS-EXAMINATION BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Thank you very 14 much, Commissioner. Good morning, Dr. Smith. 15 DR. CHARLES SMITH: Good morning. 16 MS. LINDA ROTHSTEIN: Commissioner, I 17 want to begin this morning by taking you to a new 18 affidavit that we have received that was sworn on January 19 28th, 2008, from Mark Holden. 20 It is document number 303972. And you can 21 find it at Volume I, Tab 37. Commissioner, this is now 22 going to form part of our record. Paragraph 1 reads: 23 "I'm a Staff Sergeant of the Barrie 24 Police Service. I was involved in an 25 investigation into the death of X who
71 was a minor. I believe that revealing 2 the name of the minor and his mother 3 could jeopardize an ongoing police 4 investigation. I have knowledge of the 5 matters deposed to in my affidavit." 6 Commissioner, I can tell you that there 7 have been discussions between counsel for the Barrie 8 Police Service, counsel for the Attorney General, 9 Commission Counsel, and others and we are all agreed 10 that, indeed, Staff Sergeant Holden is correct in that we 11 can not be more fulsome with respect to the details of 12 this particular investigation and, particularly, anything 13 that would lead to the identity of this child, because it 14 is subject to an ongoing police investigation. Paragraph 15 2: 16 "On September 4, 1996, the Ontario 17 Police -- Ontario Provincial Police 18 intercepted a telephone conversation 19 between Dr. Smith and X's mother 20 pursuant to an authorization granted 21 under Part 4 of the Criminal Code of 22 Canada [excuse me, 6] -- of the 23 Criminal Code of Canada. Detective 24 Inspector McNeil, of the OPP, learned 25 from the conversation that Dr. Smith
81 intended to meet with X's mother at her 2 home in the Barrie area to discuss with 3 her the results of the report on his 4 post-mortem examination on X. 5 Detective Inspector McNeil knew that 6 listening devices installed in the 7 house also pursuant to a Part 6 8 authorization, would likely intercept 9 this conversation. Detective Inspector 10 McNeil subsequently met with members of 11 the Barrie Police Service, including 12 me, to discuss the situation. 13 Detective Inspector McNeil telephoned 14 Dr. Smith and advised him that the 15 listening devices installed in the 16 house would likely intercept his 17 conversation with X's mother. Dr. 18 Smith agreed to meet with the Barrie 19 Police Service and Detective Inspector 20 McNeil, and he did so on September 5, 21 1996, the day he was scheduled to meet 22 with X's mother. The meeting took 23 place at the Barrie Police Service 24 Police Station and lasted approximately 25 twenty (20) minutes. During the
91 meeting the Police Dep -- the Barrie 2 Police and Detective Inspector McNeil 3 did not direct Dr. Smith in any way as 4 to how to conduct the meeting with X's 5 mother and did not ask him to solicit 6 any information from her. At the 7 conclusion of the meeting with Barrie 8 Police and Detective Inspector McNeil, 9 Dr. Smith went to the house of X's 10 mother and met with her. Following 11 that meeting, Dr. Smith met with 12 representatives of the Barrie Police 13 Service and Detective Inspector McNeil 14 over lunch to discuss his meeting with 15 X's mother. Dr. Smith explained that 16 she had a number of questions about his 17 findings and he answered her questions 18 arising from his report on post-mortem 19 examination. The Barrie Police 20 Officers recall that Dr. Smith 21 expressed a view on X's mother's 22 demeanour when she was discussing her 23 child's death. Dr. Smith said that, 24 quote, 'It was like talking to her 25 about a load of gravel,' closed quote.
101 The officers understood this to mean 2 that Dr. Smith was commenting on the 3 inappropriate and flat affect of X's 4 mother during that meeting. The Barrie 5 Police do not recall that Dr. Smith 6 expressed a position during the lunch 7 meeting as to whether or not his 8 pathology evidence supported X's 9 mother's culpability or not. I recall 10 that there were two (2) case 11 conferences involving Dr. Cairns and 12 Dr. Smith, which were held on April 13 17th and May 30th, 1996; however, at 14 these meetings there was no discussion 15 of any surveillance of X's mother. I 16 do not recall any further meetings with 17 Dr. Smith following his meeting with 18 X's mother. I do not recall any 19 further case conferences involving 20 representatives of the Office of the 21 Chief Coroner or Dr. Smith. The Barrie 22 Police have complied with section 196 23 of the Criminal Code and have provided 24 X's mother with written notification of 25 the authorization of this interception.
111 I make this affidavit under summons 2 from the Commissioner and for the 3 purposes of giving evidence at the 4 Inquiry into pediatric forensic 5 pathology in Ontario and for no other 6 or improper purpose." 7 And that affidavit was sworn on the 28th 8 day of January of this year. Dr. Smith, I just want to 9 begin this morning with a few questions about the death 10 of a minor we have agreed to refer to as X. 11 In the spring of 1996 a minor named X 12 died. You actually know whom I'm speaking about. 13 DR. CHARLES SMITH: Yes, I do. 14 MS. LINDA ROTHSTEIN: The history 15 reported to the police indicated that X suffered a 16 household fall, went into distress in a few hours after 17 the fall, and died two (2) days later. 18 Do you recall that, sir? 19 DR. CHARLES SMITH: Well, I -- I recall 20 that that history is not -- is not quite accurate. 21 MS. LINDA ROTHSTEIN: Okay. 22 DR. CHARLES SMITH: The -- the fall 23 occurred, as I understand, at a daycare centre, not -- 24 not in a home. 25 MS. LINDA ROTHSTEIN: You're quite right.
121 DR. CHARLES SMITH: All -- all right. 2 And the -- the second issue is that it was not -- as it 3 was communicated to me, it was not necessarily a fall. X 4 may have, in fact, collapsed and happened to be on a 5 landing or on a stairway at the time. So it wa -- I'm 6 not certain that it wa -- that I understood it to be 7 necessarily a fall. He could have simply collapsed and 8 be seen to be falling or collapsing or landing. 9 MS. LINDA ROTHSTEIN: Okay. Dr. Smith, 10 you and I aren't going to explore the pathology -- 11 DR. CHARLES SMITH: No. 12 MS. LINDA ROTHSTEIN: -- in this case. 13 DR. CHARLES SMITH: No. 14 MS. LINDA ROTHSTEIN: Commissioner, so 15 you know, we believe that it would go too far in 16 jeopardising the ongoing police investigation to get into 17 the undergoing pathology, but I am relieved to know, Dr. 18 Smith, that you have enough recollection of this case 19 that you and I can have a conversation about what 20 happened during your meeting with the mother. 21 You did perform the post-mortem in this 22 case, Doctor? 23 DR. CHARLES SMITH: I did, yes. 24 MS. LINDA ROTHSTEIN: You and Dr. Cairns 25 advised the police that the injuries suffered by X were
131 caused by blunt force trauma consistent with non- 2 accidental or inflicted injury; am I right about that? 3 DR. CHARLES SMITH: That's correct. 4 MS. LINDA ROTHSTEIN: The police 5 considered the case to be a homicide? 6 DR. CHARLES SMITH: That's right. 7 MS. LINDA ROTHSTEIN: And were 8 investigating a number of suspects? 9 DR. CHARLES SMITH: That was my 10 understanding, yes. 11 MS. LINDA ROTHSTEIN: One (1) of the 12 suspects was X's mother. 13 DR. CHARLES SMITH: That's my 14 understanding. 15 MS. LINDA ROTHSTEIN: And so looking at 16 paragraph 1 of the affidavit of Mark Holden, Staff 17 Sergeant Holden, do you agree, sir, that this is 18 potentially an ongoing police investigation? And you and 19 I will be careful about the way I ask questions and you 20 answer them. 21 DR. CHARLES SMITH: Um -- 22 MS. LINDA ROTHSTEIN: You understand -- 23 DR. CHARLES SMITH: Yeah, I -- 24 MS. LINDA ROTHSTEIN: -- that to -- 25 DR. CHARLES SMITH: -- I under -- yes. I
141 couldn't have told you some time ago what the status was, 2 but if this is what is told to me I certainly accept 3 that. 4 MS. LINDA ROTHSTEIN: And you've had an 5 opportunity, have you not, Dr. Smith, to review the 6 contents of this affidavit before sitting there this 7 morning? 8 DR. CHARLES SMITH: Yes. 9 MS. LINDA ROTHSTEIN: Okay. Are there 10 any aspects of it you disagree with? 11 DR. CHARLES SMITH: No. No. There -- 12 there's obviously information in here, specific 13 information, that I don't recall or perhaps was unaware 14 of. 15 MS. LINDA ROTHSTEIN: On September 4th, 16 1996, you indeed spoke with X's mother. That's true? 17 DR. CHARLES SMITH: I certainly spoke 18 with X's mother and I accept this information, yes. 19 MS. LINDA ROTHSTEIN: You can't be 20 precise about the date -- 21 DR. CHARLES SMITH: No. 22 MS. LINDA ROTHSTEIN: -- based on -- 23 DR. CHARLES SMITH: No. 24 MS. LINDA ROTHSTEIN: -- your own 25 recollection --
151 DR. CHARLES SMITH: No. 2 MS. LINDA ROTHSTEIN: -- is what I 3 understand to be your hesitation, is that true? 4 DR. CHARLES SMITH: That's -- that's 5 true, yes. Yes. 6 MS. LINDA ROTHSTEIN: Fair enough. 7 DR. CHARLES SMITH: No, I acknowledge I - 8 - I spoke with X's mother. 9 MS. LINDA ROTHSTEIN: What do you 10 remember about how that came to pass, Dr. Smith? 11 DR. CHARLES SMITH: To the best of my 12 recollection, I was asked by Dr. Cairns to meet with X's 13 mother to discuss the results of the post-mortem 14 examination. 15 MS. LINDA ROTHSTEIN: And what do you 16 recall about your conversation with Dr. Cairns in which 17 he made that request of you? 18 DR. CHARLES SMITH: Very little. The -- 19 the points of it that I remember were that because of the 20 -- of the circumstances relating to X's mother, that she 21 could not travel to Toronto for a meeting, which would 22 have been a more -- a more -- generally more typical 23 situation. Where, from time to time, when I did meet 24 with a family in the presence of the representative of 25 the Chief Coroner's Office, where sometimes they would
161 make that request but would not be present, those 2 meetings would have -- would have occurred in Toronto. 3 And this was unusual because it was not -- 4 as I understand it, not possible for her to travel to 5 Toronto. And so Dr. Cairns made that -- made that 6 request of me; that I would meet with her in Barrie. 7 MS. LINDA ROTHSTEIN: Just stop there for 8 a -- 9 DR. CHARLES SMITH: Yeah. Mm-hm. 10 MS. LINDA ROTHSTEIN: -- a moment if you 11 would, Dr. Smith, because I just want to go back and make 12 sure we understand what you've told us. 13 You've told us, I think, that this was not 14 the first occasion on which you received a request from 15 the OCCO to meet with a member of a family of a deceased 16 child? 17 DR. CHARLES SMITH: No, it was not. It - 18 - it was not a common occurrence but it -- but it 19 certainly did occur from time to time; to meet with them 20 or sometimes simply speak with them by telephone if they 21 were not in the Toronto area. 22 MS. LINDA ROTHSTEIN: And you used the 23 word "they" to refer to the OCCO. Can you be more 24 specific than that, Doctor? 25 DR. CHARLES SMITH: I know I have done it
171 at the request of Dr. Young and Dr. Cairns. 2 MS. LINDA ROTHSTEIN: Okay. 3 DR. CHARLES SMITH: It -- it could be 4 that I've done it at the request of others as well, I 5 don't recall. 6 MS. LINDA ROTHSTEIN: And would it be the 7 ordinary practice that that would occur at the OCCO in 8 the presence of a representative of the OCCO, whether it 9 was Dr. Cairns or Dr. Young or someone else? 10 DR. CHARLES SMITH: If -- if they were to 11 be present, yes, it would be. There were occasions when 12 the issue was -- was purely medical; there were no -- no 13 issues of interest to -- specific interest to the Office 14 of the Chief Coroner. And on those occasions I've met 15 with families at the Hospital for Sick Children, but that 16 would be in the absence of any representative from the 17 Chief Coroner's Office. 18 MS. LINDA ROTHSTEIN: Mm-hm. No, I 19 understood in your written evidence that, indeed, you had 20 many years of practice involved with communication with 21 families in purely medical cases. There was no issue 22 about those family members being suspects in a criminal 23 investigation. 24 Did I read your written evidence 25 correctly, Dr. Smith?
181 DR. CHARLES SMITH: That -- that's 2 correct, yes. 3 MS. LINDA ROTHSTEIN: All right. But at 4 page 23 of your written evidence, you make the point that 5 this didn't happen, if I understand it, in cases in which 6 the police were already investigating the death as a 7 suspected homicide. 8 DR. CHARLES SMITH: That's correct. 9 MS. LINDA ROTHSTEIN: All right. So 10 apart from this case, which we're going to talk about, 11 were there ever any other occasions in which you, indeed, 12 met with a family member who was the subject of an 13 ongoing police investigation? 14 15 (BRIEF PAUSE) 16 17 DR. CHARLES SMITH: And your question is 18 within the context of giving the family information as 19 opposed to if -- if I had met them for identification of 20 the body? I -- 21 MS. LINDA ROTHSTEIN: Yes. 22 DR. CHARLES SMITH: -- I'm not trying to 23 be obtuse here. I just -- 24 MS. LINDA ROTHSTEIN: No, no. That's a 25 great question, because my question was broad.
191 DR. CHARLES SMITH: Yeah. 2 MS. LINDA ROTHSTEIN: No, it's fair, and 3 I -- we do know, I don't mean to be -- 4 DR. CHARLES SMITH: Yep. 5 MS. LINDA ROTHSTEIN: -- unfair to you at 6 all. We know that there were cases where you met about 7 an exhumation, and there might have been some horizon of 8 an issue about the family. I'm excluding those. 9 DR. CHARLES SMITH: Yeah. Yeah. 10 MS. LINDA ROTHSTEIN: I'm really saying, 11 you knew that the -- one (1) of the members of the family 12 was a potential suspect in a homicide investigation. You 13 received a request from that family member to meet with 14 them, and you did. 15 DR. CHARLES SMITH: Yes. In -- this case 16 was certainly unusual. As I -- as I think about it, and 17 -- and this may be an incomplete recollection. 18 I think the only case that may be close to 19 it would be the Amber case, and that was a meeting in 20 Timmins with -- with Dr. Young -- 21 MS. LINDA ROTHSTEIN: Okay. 22 DR. CHARLES SMITH: -- at his request. 23 MS. LINDA ROTHSTEIN: Okay. So when you 24 talk about those other occasions when you received a 25 request from the OCCO, be it Dr. Young or Dr. Cairns, to
201 meet with a family member, we can conclude fairly that 2 those were all cases where there was -- they were not 3 criminally suspicious at the time of the meeting. 4 Is that right? 5 DR. CHARLES SMITH: Yes, that's correct. 6 MS. LINDA ROTHSTEIN: Okay. So can we go 7 back to this case, then, with that help from you. 8 Do you remember whether you called X's 9 mother or she called you? 10 DR. CHARLES SMITH: To the best of my 11 recollection, she called me. 12 MS. LINDA ROTHSTEIN: Okay. And did you 13 agree to meet with her, and arrange a time to meet the 14 next day? 15 DR. CHARLES SMITH: We -- we did. I -- I 16 don't know if it would have been the first conversation, 17 or if I'd had more than one (1) conversation with her, 18 but at some point in time, it was -- we agreed on a -- on 19 a date, and a place to meet. 20 MS. LINDA ROTHSTEIN: All right. So if 21 we look at this affidavit, I understand that after having 22 that call -- 23 DR. CHARLES SMITH: Yep. 24 MS. LINDA ROTHSTEIN: -- the police 25 called you because they were intercepting the
211 communication that you had with the mother, at least one 2 (1) of them, right? 3 DR. CHARLES SMITH: Yes, that's right. 4 Yeah. 5 MS. LINDA ROTHSTEIN: And it was as a 6 result of that contact with the police that you learned 7 of the existence of a wire tap in the mother's home. 8 DR. CHARLES SMITH: That's what is said 9 here. I -- I -- my recollection was that I knew of it at 10 the beginning, but it is quite possible that -- because I 11 would have had more than one (1) conversation, it could 12 be that it -- I learned it during the course of 13 conversations with Dr. Cairns, or whoever. 14 So, I -- at this point, reviewing this 15 affidavit, I certainly accept this information because I 16 have no distinct recollection that would indicate to me 17 anything different. 18 MS. LINDA ROTHSTEIN: What was your 19 reaction to the news, however the sequence of events 20 preceded your understanding, that there was a wire tap in 21 this mother's home that you'd been invited to visit? 22 DR. CHARLES SMITH: It -- in the absence 23 of the wire tap, it was a -- a somewhat unusual request 24 that had been made of me, because I was aware that there 25 had been, and -- and presumably there still was, a -- a
221 potential homicide investigation, hence, the X's mother, 2 I presume, would have been part of that, though I 3 couldn't tell you if the police had included or excluded 4 anyone, but -- but I was certainly -- I certainly felt 5 that I was speaking, or potentially speaking to someone 6 who could be -- who could be a suspect. 7 And the second aspect of it was I was 8 meeting not in the Chief Coroner's Office, or the 9 hospital. It was a different environment, and that was 10 also unique for me. 11 So the two (2) components of that were 12 unusual. 13 MS. LINDA ROTHSTEIN: What, if any, 14 aspects of what you've just described, Dr. Smith, 15 affected your willingness to meet with X's mother? 16 DR. CHARLES SMITH: I -- I don't know. I 17 can't remember my reaction completely. I was not 18 welcoming or pleased about the opportunity because of the 19 unusual nature and the uncertainty. 20 But as with other things that -- or other 21 tasks that were asked of me by the Office of the Chief 22 Coroner from time to time, my -- my response was to 23 attempt to accommodate that request if I could. 24 MS. LINDA ROTHSTEIN: Did you turn your 25 mind at all to whether or not it was appropriate for you
231 to have such a meeting? 2 DR. CHARLES SMITH: I -- I can't remember 3 specifically thinking of that, though the fact that the 4 request was made of me by the Office of the Chief Coroner 5 gave me come confidence in the fact that it -- it would 6 have been appropriate. That's how I would have perceived 7 it. 8 MS. LINDA ROTHSTEIN: And are you telling 9 us, Dr. Smith, that Dr. Cairns, at some stage, knew not 10 only that the mother was the subject of a criminal 11 investigation, but that her house was under surveillance 12 by the police? 13 DR. CHARLES SMITH: He would have -- he 14 would have known the latter I believe from early on. 15 Because we had discussed the case -- Dr. Cairns and I -- 16 and, at least, one (1) other medical expert, from the 17 hospital, had discussed aspects of the case with -- with 18 the -- the police investigators. 19 MS. LINDA ROTHSTEIN: So, sorry, you're 20 saying -- and my question wasn't ideal. For sure Dr. 21 Cairns knew that this mother was the subject of a 22 criminal investigation, there's no doubt about that? 23 DR. CHARLES SMITH: There's no doubt in 24 my mind about that. 25 MS. LINDA ROTHSTEIN: Did he also know
241 when he made the request of you that -- about the wire 2 tap? 3 DR. CHARLES SMITH: During the period of 4 time before going, he -- he certainly knew of the wire 5 tap. And -- and here, to the best of my recollection, I 6 would have told you that he knew about it when we first 7 spoke of it, but -- but I acknowledge that could be 8 wrong. 9 But he certainly knew of it by the time I 10 went to Barrie; by the time we had finished our -- our 11 discussions of this. 12 MS. LINDA ROTHSTEIN: Okay. Looking at 13 paragraph 4 of the affidavit, Sergeant Holden, Dr. Smith, 14 we see, and you don't dispute, that you met with the 15 Barrie Police Service on September the 5th and had a 16 discussion with them prior to visiting the mother. 17 Is there anything you can tell us about 18 that conversation? 19 DR. CHARLES SMITH: Not a -- not a great 20 deal, no. I -- I didn't know anything about the 21 situation I was going into other than the fact that I 22 knew, you know, a mother's name and address as 23 essentially as it were. 24 So I -- I recall just asking for some 25 information about the situation. But I -- I can't
251 remember my questions nor can I remember any information. 2 MS. LINDA ROTHSTEIN: But it's your 3 evidence that you were not directed in any way about how 4 to conduct that conversation with the mom? 5 DR. CHARLES SMITH: No, no directions 6 about content, process, where we should sit -- no 7 instruction whatsoever. 8 MS. LINDA ROTHSTEIN: Tell us about your 9 meeting with the mom, what, if anything, you remember 10 about it without giving us any details that might reveal 11 her identity. 12 DR. CHARLES SMITH: The conversation as I 13 recall, centred on the autopsy report. There were 14 questions about the interpretation of -- of the autopsy. 15 I recall she had some questions about medical management 16 and of course, I couldn't answer those. 17 That's to the best of my recollection, but 18 I can't tell you specifically about that. We did discuss 19 possibilities for how his lethal abdominal injury or 20 injuries occurred. 21 So that's what I remember about the 22 content of the conversations. 23 MS. LINDA ROTHSTEIN: And after the 24 meeting, you again met with the Barrie Police? 25 DR. CHARLES SMITH: Yes.
261 MS. LINDA ROTHSTEIN: And have they 2 fairly characterized the conversation -- your 3 characterization, rather, of your impression of the mom? 4 DR. CHARLES SMITH: Yes. Yes. 5 MS. LINDA ROTHSTEIN: So having told us 6 that this was unusual, are you able to tell us whether 7 there was any other conversation that you ever had with a 8 family member or a caregiver who was the subject of a 9 homicide investigation in which you knew the police were 10 intercepting that conversation? 11 DR. CHARLES SMITH: No, this is -- this 12 is unique. I'm -- I don't think I was ever aware of any 13 police intercepts in -- in any case that I did. 14 MS. LINDA ROTHSTEIN: You appreciate now, 15 do you not, Dr. Smith, that if this case had gone to 16 trial you might well have been called, not simply as an 17 expert witness but also to give evidence, factually, 18 about your conversation with the mom? 19 DR. CHARLES SMITH: I can understand that 20 now. I certainly didn't understand or appreciate that 21 possibility nor -- nor was I ever told about that 22 possibility at the time. 23 MS. LINDA ROTHSTEIN: Looking back, what 24 do you think about the appropriateness of this particular 25 conversation with the mother?
271 DR. CHARLES SMITH: The -- the 2 appropriateness of having it, do you mean? 3 MS. LINDA ROTHSTEIN: The appropriateness 4 of -- 5 DR. CHARLES SMITH: For -- 6 MS. LINDA ROTHSTEIN: -- having it at 7 all. 8 DR. CHARLES SMITH: Yeah. Yeah, for me. 9 MS. LINDA ROTHSTEIN: As opposed to its 10 particular content. 11 DR. CHARLES SMITH: Content, yes. 12 13 (BRIEF PAUSE) 14 15 DR. CHARLES SMITH: I don't think it was 16 appropriate for a person who has one (1) responsibility 17 in a death investigation to be asked to communicate that 18 information in this kind of an environment. 19 That does not mean to say I don't think 20 there's a role for communicating information, as it would 21 be appropriate for a mother to learn of the autopsy 22 results of her son. This -- this situation, I think, is 23 not appropriate for a pathologist -- pediatric 24 pathologist to be in. 25 MS. LINDA ROTHSTEIN: Does it tell us
281 anything about the closeness of your relationship with 2 the police, in general; not this particular Force but the 3 closeness of the relationship that you may have developed 4 at that stage with police Forces, police officers. 5 Does it shed any light on that at all, Dr. 6 Smith? 7 DR. CHARLES SMITH: No. No. I -- I 8 believe that it -- it is better interpreted as an 9 indicator that when I was asked to do something by the 10 Office of the Chief Coroner, I responded if I was able to 11 respond to their request. 12 MS. LINDA ROTHSTEIN: Thank you, Dr. 13 Smith. 14 I want to move on and discuss with you a 15 little bit about continuing education in your field; how 16 you went about it, how one attempted to keep up given the 17 demands on your time, and how you managed all the 18 different subject areas that you were called upon to give 19 evidence about. Because there was a wide range. 20 Pediatric forensic pathology, even if you 21 take the forensic out of it, has a very wide range of 22 subject matter. You would agree with that? 23 DR. CHARLES SMITH: Oh, absolutely. 24 MS. LINDA ROTHSTEIN: So can you tell us 25 a bit about that? How did you go about keeping up-to-
291 date? 2 You told us there were some conferences on 3 the forensic part; but just staying in touch with what, 4 we all now know, is a very evolving discipline. 5 How much time did you devote to reading? 6 How did you identify those things you ought to read? 7 Can you help us with that please, Dr. 8 Smith? 9 DR. CHARLES SMITH: Perhaps it would be - 10 - it would be helpful to kind of describe what, for me, 11 would have constituted educational activities, and they 12 take many forms. It's recognised that conferences and 13 rounds, grand rounds, and those -- those activities in -- 14 within the hospital represented educational activity. 15 And for those reasons, people would sign 16 into rounds so that they would sort of acknowledge and be 17 given credited for that continuing ac -- educational 18 activity, and those -- the ones that I participated in 19 would have been those within the Department of Pathology 20 or later, the Division of Pathology, and also, in other - 21 - in other departments in the hospital. 22 At -- at times I would have been involved 23 with them, for instance, in the -- in the Nephrology 24 Department for kidneys. And so the -- the conferences 25 weren't purely pathology, they were also clinical for the
301 purpose of -- of learning clinical or developing clinical 2 pathologic correlations. So first were the -- the 3 conferences, the innumerable conferences at the hospital. 4 The second is -- is reading, and much of 5 that is -- is journals because there were very few -- few 6 texts in the area of pediatric pathology. And the 7 journals, as I believe I indicated, were -- were journals 8 that dealt largely with the science of pediatric 9 pathology, but from time to time, through things like 10 literature searches or scanning tables of contents, I 11 would read other journals such pediatric type journals or 12 specialty type journals. 13 As for a number of years I, each week, 14 scanned the table of contents of journals that had come 15 in to the library or were available on a weekly basis. 16 A third -- a third component would be that 17 of attending special lectures at the University or other 18 places and, again, those would deal more with the -- the 19 science or the advances in pathology conferences I've 20 touched on, a variety of conferences. 21 And then the -- perhaps the last of those 22 categories would be the education that comes from -- no, 23 in fact, I'll add one (1) more category, I'm sorry, but 24 the -- the second last category would be the education 25 that comes from being involved in research projects; be
311 it ones that were -- that originated in pathology or 2 those that were begun by a clinician where they sought 3 these assistance of pathology, and so as part of being 4 involved in that there is reading and discussions and 5 considerations of a number of issues. 6 And then finally, it is reading on a -- on 7 a case-by-case basis. When presented with something new 8 or different or uncertain, it would be typical to -- to 9 try and work through what some of those problems were, 10 and so... Yeah, an example would on a -- on a difficult 11 medical case where there was uncertainties or where there 12 were possibilities of rare diseases, I would have to go 13 to the library and start -- start doing literature 14 searches and reading and that kind of thing. 15 So those would be, as it were, five (5) 16 categories of activities -- 17 MS. LINDA ROTHSTEIN: Mm-hm. 18 DR. CHARLES SMITH: -- some of which are 19 pathology specific and some of which relate to clinical 20 disciplines in which pathology has a component in which 21 clinical information is of assistance in the -- the 22 understanding or the diagnosis of -- of a specimen or a 23 disease. 24 MS. LINDA ROTHSTEIN: So, Dr. Smith, 25 looking at the cases that this Inquiry has primarily
321 focussed on, you and I know that many of them are infant 2 head injury cases, or what you would have described at 3 the time as asphyxial deaths in infants. 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: And I think that 6 reading your curriculum vitae makes clear your ongoing 7 interest in those areas, whether it's because you're 8 speaking about those issues or doing some publishing in 9 those areas. Same with SIDS and SUDS. 10 But one (1) of the areas that doesn't seem 11 touched on your CV is the possibility of sexual abuse 12 being part of the death investigation. 13 So I am curious, Dr. Smith, as -- as to 14 how many cases in which there was an issue of sexual 15 abuse, we know Valin; we know you don't agree on the 16 Jenna case, that's fine, I don't want to -- 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: -- go back to that. 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: But how many others 21 were there? 22 DR. CHARLES SMITH: In -- 23 MS. LINDA ROTHSTEIN: During your tenure. 24 DR. CHARLES SMITH: In the time I was at 25 the Hospital --
331 MS. LINDA ROTHSTEIN: Yes. 2 DR. CHARLES SMITH: -- for Sick Children? 3 MS. LINDA ROTHSTEIN: Yes. 4 DR. CHARLES SMITH: Of all of the cases, 5 not just mine but all of the cases that the pathologists 6 did? 7 MS. LINDA ROTHSTEIN: Well, that you had 8 some direct involvement in. 9 DR. CHARLES SMITH: Direct or indirect? 10 I am not aware that that diagnosis was made on any case 11 in twenty-four (24) years -- 12 MS. LINDA ROTHSTEIN: Mm-hm. 13 DR. CHARLES SMITH: -- by anyone. 14 MS. LINDA ROTHSTEIN: Okay. 15 DR. CHARLES SMITH: I was aware of a 16 couple of cases in Ontario; one (1) from Hamilton and the 17 other I'm not sure of the city, and -- and I was given 18 those autopsy reports to look at by someone from the 19 Office of the Chief Coroner. 20 But in fact, at the Hospital for Sick 21 Children I don't -- in the time I was there, no 22 pathologist ever made that diagnosis that I'm aware of 23 and I believe I would have seen all the autopsy reports. 24 MS. LINDA ROTHSTEIN: Okay. So help us 25 understand why you accepted the invitation of Dr. Rasaiah
341 to consult in the Valin case. 2 Why did you feel you could take on a case 3 such as that where it presents as one (1) in which Dr. 4 Rasaiah and Dr. Zehr had concluded that there was sexual 5 abuse accompanying the fatal acts? 6 DR. CHARLES SMITH: Mm-hm. The -- when I 7 first looked at the case, the photographs that Dr. Mian 8 had brought down to me to look at, I was concentrating on 9 the -- really more of the asphyxia. I certainly saw 10 findings that to me were out of keeping -- or anogenital 11 findings, I should say, that to me were out of keeping 12 with anything that I had ever seen at post-mortem 13 examination. But so also were the other changes as well. 14 So I -- I simply to begin with was asked 15 to look at photographs with Dr. Mian and assisted in 16 that. And then based on our relative contributions, she 17 then authored a consultation report for Dr. Rasaiah. So 18 I had no direct communication with Dr. Rasaiah on my own. 19 I was responding to a request by Dr. Mian. 20 MS. LINDA ROTHSTEIN: Do I hear you to be 21 implying, Dr. Smith, that your thinking was, I'm going to 22 sort of focus on the asphyxial part of this death, the 23 cause of death issues, Dr. Mian is experienced in 24 determining sexual abuse, at least in living children, 25 and I'm going to, with her, collaborate on the result?
351 Is -- am -- 2 DR. CHARLES SMITH: Well -- 3 MS. LINDA ROTHSTEIN: -- I being unfair 4 to you in reading that into your last answer? 5 DR. CHARLES SMITH: I -- I don't want to 6 indicate that I -- I did not express views about the 7 anogenital region because -- though I can't remember my 8 conversation with Dr. Mian at all, I expect that I was -- 9 I said things to her that indicated this was beyond that 10 which I thought could be post-mortem changes; hence, it 11 was some ante-mortem event. 12 My -- my area of -- of knowledge, which 13 she would be much more limited in, was the issue of post- 14 mortem lividity. And so -- and so on that, I had a -- 15 had a stronger opinion because of the stronger frame of 16 reference than she would have had because she would have 17 seen very few children who were deceased. 18 MS. LINDA ROTHSTEIN: Can you help the 19 Commissioner to understand how in all those circumstances 20 you felt it was appropriate for you to express an opinion 21 on the potential of there being sexual abuse in this 22 young child? 23 DR. CHARLES SMITH: I was asked for an 24 opinion and I gave an opinion based on what I knew as to 25 be the norm for post-mortem findings.
361 MS. LINDA ROTHSTEIN: But would you 2 actually, if asked, considered yourself an expert on that 3 issue? 4 DR. CHARLES SMITH: No. No. My 5 expertise was book knowledge not -- not personal 6 experience because we hadn't had cases at Sick Kids of 7 that. 8 MS. LINDA ROTHSTEIN: So why was there no 9 hesitation, or was there, that you managed to overcome? 10 Can you help us with that, Dr. Smith? 11 DR. CHARLES SMITH: I can't -- I can't 12 remember specifically anything about hesitations or 13 certainties that I had or communicated. 14 I -- I simply don't remember. I remember 15 only that I was asked to look at some photographs, and -- 16 and did so, and -- and gave to Dr. Mian the best 17 understanding that I had based on those photographs. 18 MS. LINDA ROTHSTEIN: Okay. Now, no one 19 again doubts that you were in any way alone in the 20 conclusion that this was -- that in particular the 21 dilatation of the anus -- 22 DR. CHARLES SMITH: Mm-hm. 23 MS. LINDA ROTHSTEIN: -- was, in fact, 24 indicative of abuse of this young girl, so don't hear in 25 my questions any of that.
371 But we've heard some evidence about this 2 from others. I want to show you the evidence that we 3 heard from Dr. Pollanen on November the 13th -- no -- 4 11/13/07, Registrar. I can't read my own notes to know 5 whether that's November, or -- November 13th. It seems 6 like a long time ago. 7 COMMISSIONER STEPHEN GOUDGE: Or the 11th 8 day of the 13th month. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: It was the second 12 day of the Hearing. Second day of the Hearing, at page 13 149; starting with 149. If you look at your screen, Dr. 14 Smith -- 15 DR. CHARLES SMITH: Oh. 16 MS. LINDA ROTHSTEIN: -- you can see the 17 questions I asked that have completely abandoned me for 18 the moment. 19 So you can see that I'm asking Dr. 20 Pollanen about the science in this area, and the state of 21 the literature. And at the bottom of page 49 we're 22 talking about the evidence that supported the view that 23 there was chronic anal abuse here, and Dr. Pollanen says 24 at the bottom of 149, you will see: 25 "And that was based on the appearance
381 of a dilated anus? 2 Right." 3 And then over the page at 150, Dr. 4 Pollanen continues: 5 "Now, of course, we'll come in due 6 time, but we know as a matter of 7 standard textbooks in forensic 8 pathology that the -- the dilated, or 9 patulous anus is a recognized pitfall 10 in forensic medicine; that is, that we 11 know the anus dilates, or can dilate 12 after death, and is a pitfall for the 13 post-mortem diagnosis of anal abuse. 14 Q: Stopping there just for a moment, 15 Dr. Pollanen, you're using present 16 tense to express the view. For how 17 long has that been known by your 18 profession? 19 A: Well, it's -- it's present in very 20 old forensic textbooks as well. I 21 think it would be fair to say that the 22 issue has grown over time. 23 Understanding of that issue has evolved 24 over time, and is best evidenced by the 25 fact that the definitive study on the
391 issue was published in 1996." 2 That's the McCann study, Dr. Smith, to 3 which you've referred? 4 DR. CHARLES SMITH: That -- that's -- I - 5 - I -- 6 MS. LINDA ROTHSTEIN: That you -- 7 DR. CHARLES SMITH: -- assume that, yes. 8 MS. LINDA ROTHSTEIN: All right. 9 DR. CHARLES SMITH: Yeah. 10 MS. LINDA ROTHSTEIN: And then the 11 Commissioner asked a question, and then Dr. Pollanen 12 continues: 13 "Yes." 14 About the publication. 15 "And this publication obviously was 16 done because it was recognized as an 17 issue in medicolegal work." 18 And then over the page, he continues: 19 "But just so..." 20 The question is: 21 "But just so we have a sense of how 22 much that was recognition of an issue 23 that had been discussed elsewhere, but 24 perhaps not as comprehensively, you 25 talk about a study in '96. We know
401 that the autopsy was done in '94. So 2 can you assist us with what the state 3 of knowledge would have been on that 4 issue of the potential problems created 5 by naked eye observation of anal 6 dilation two (2) years prior to the 7 publication of this study?" 8 Dr. Pollanen: 9 "It certainly would appear in the major 10 textbooks at that time." 11 Now, nobody is suggesting, nor do I think 12 Dr. Pollanen was suggesting, Dr. Smith, that it was in 13 every major textbook, and it was underlined, I don't 14 think. And I'm not suggesting to you that's what he 15 said. 16 DR. CHARLES SMITH: I accept that. 17 MS. LINDA ROTHSTEIN: But does he fairly 18 and accurately set out the extent to which this was, at 19 least, a potential issue and known to be by those who 20 were familiar with the literature? 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: So would this be a 23 case where your lack of experience in dealing with these 24 kinds of issues at post-mortem may have been a serious 25 problem?
411 DR. CHARLES SMITH: Retrospectively, I 2 would agree with that, yes. I certainly recognize that 3 there is the potential for that, but what I saw in the 4 photographs, again, was something that I was not familiar 5 with as being within the range of norm that I was used 6 to. So this is perhaps more the art than the science of 7 pathology. 8 MS. LINDA ROTHSTEIN: Okay. Dr. Huyer 9 also gave some evidence about this, and I'm going to 10 summarize it quickly by saying that he was alive to the 11 issues as a result of conferences fairly early on; that 12 is to say in the late '80's and '90's. 13 And then if we turn to his evidence -- I'm 14 just going to get that for you, Registrar. 15 16 (BRIEF PAUSE) 17 18 MS. LINDA ROTHSTEIN: Not so well today. 19 Oh is it? Thank you. Thank you, Registrar. I told him 20 in advance and then couldn't find it. 21 I asked him some questions about this as 22 well, and he started to tell us about the McCann study. 23 All right. So if you can just go back a 24 little bit please, Registrar, to starting at page 164. 25 Thank you. All right, and can you assist us as to when
421 it was that you first became aware as a SCAN physician 2 that that was a potential pitfall in ones diagnosis of 3 sexual abuse? 4 And I'm referring again, to this issue of 5 anal dilatation, Dr. Smith: 6 "DR. DIRK HUYER: As far as live 7 children or deceased children? 8 Deceased children. 9 Well, I was aware of it as live 10 children as soon as I started, January 11 of 1980 or January 1990. [whoops] 12 Actually, a course in September 1989 13 was the first course I took in sexual 14 abuse. I suspect it was mentioned 15 there. I don't know that, but there 16 was controversy from England in the 17 years prior to that, so I was aware of 18 that as an issue early on in my 19 clinical practice. And while it would 20 be an issue in live, it certainly would 21 be an issue in deceased. 22 All right. 23 DR. HUYER: So I was -- I think I was 24 aware of that early on. 25 Q: And are you familiar with the work
431 of Dr. McCann who did a study on that 2 very issue for deceased children? 3 A: Yeah. Dr. McCann is a colleague 4 and an acquaintance of mine. We've had 5 a number of conversations and, in fact, 6 in that study -- he and I conversed on 7 that during the process of that study. 8 [and then I stop him and he says] And 9 let's just pull up the date of that 10 study." 11 And I do that. So if you can just go on 12 to the page 166 please, Registrar, we -- we try and find 13 the date of that study and then I come back to it. And 14 then we go down to the middle of 166. 15 I think if you go through that, Dr. Huyer 16 reveals that the study was conducted between 1990 and 17 1992, ultimately not published until '96: 18 "So with that to assist us in dating 19 this, you were about to tell us about 20 your discussions with Dr. McCann, I 21 take it, about this study. 22 DR. HUYER: I think that he had 23 presented that he was doing this study 24 at a conference down in San Diego, 25 which I would not have been in -- at in
441 1990 because I was interacting with Dr. 2 Smith in the ICU in that January. So 3 it would have been January 1991, I was 4 likely in San Diego and learned of 5 this. In my -- in my ever enthusiastic 6 way, I interacted with Dr. McCann and 7 said, Oh, we see a lot of children at 8 Sick Children's in Toronto and probably 9 could offer potential subjects for this 10 study. [could you move down please, 11 Registrar] And so Dr. McCann was quite 12 excited by that as I recall and sent me 13 up the protocol. 14 And I interacted with Dr. Smith and he 15 said, you know, here's a study. And my 16 recollection of that was Dr. Smith 17 thought that we wou -- that would be 18 something that may -- he may 19 participate in and I provided the 20 protocol of how they approached these 21 cases, and it is my understanding that 22 no subjects were provided from Sick 23 Children's Hospital. And clearly by 24 the authors; there likely weren't 25 because there would have been Dr. Smith
451 or others as an author." 2 So, Dr. Smith, did you follow that? A 3 little hard to read and -- 4 DR. CHARLES SMITH: I know Dr. Huyer very 5 well, yes. Or well enough to understand -- 6 MS. LINDA ROTHSTEIN: Good. 7 DR. CHARLES SMITH: -- this. Yeah. 8 MS. LINDA ROTHSTEIN: What do you 9 remember about this, Dr. Smith? 10 DR. CHARLES SMITH: I remember Dr. Huyer 11 telling me about a study and gave me some information on 12 how photographs were to be done, and it was a multi- 13 centre that was already under way. And thereafter, I -- 14 I mean I couldn't have told you who was -- I couldn't 15 have told you anymore about the study, but I do remember 16 that he -- to use his expression, "in an enthusiastic 17 way", spoke about it. 18 And -- and we spoke about it at -- at the 19 Hospital for Sick Children, and -- and felt that we 20 didn't think we could participate, because of some of the 21 ethical or -- or the research issues. There was not -- 22 there was, by no means, uniform support for involvement 23 in this, though we all recognized that it had the 24 potential to be important. 25 But there were enough -- enough issues or
461 uncertainties that related to the practice, and -- and 2 consent issues and that sort of thing, that -- that, in 3 the end, we didn't think that -- that we could 4 participate. 5 MS. LINDA ROTHSTEIN: Who's the "we"? 6 DR. CHARLES SMITH: Oh, that was -- that 7 discussion went on with staff pathologists with the 8 assistance -- for instance, you've met Dr. Perrin. 9 And -- and also, that -- that was an issue 10 that I believe I discussed with doc -- with Dr. Phillips, 11 and -- and he was very cautious, as I recall, as to the 12 issue that we would have to get family consent for that 13 so it couldn't be done under the context of the coroner's 14 warrant or anything. 15 And -- and those issues were -- were such 16 that -- that we didn't think that, at that point in time, 17 it -- we could -- we could participate in -- in anything 18 of a meaningful way. 19 MS. LINDA ROTHSTEIN: Okay. So, did you 20 ever make contact with Dr. McCann or not? 21 DR. CHARLES SMITH: I -- I don't recall 22 that I ever did, no. This was a -- this was a suggestion 23 that was made -- made to Dirk, and I don't recall -- 24 after the suggestion was made, I don't recall any 25 significant conversation about it, you know, thereafter,
471 other than perhaps indicating to Dirk what -- what some 2 of the issues were. 3 I mean, I do remember discussing it with 4 him, but -- but I don't remember discussing any detail 5 about it. 6 MS. LINDA ROTHSTEIN: So, Dr. Smith, can 7 you assist us any further as to why you didn't have more 8 reluctance to provide a consultation report to Dr. 9 Rasaiah in the Valin case in light of your fairly limited 10 experience in an issue -- on an issue like this? 11 DR. CHARLES SMITH: I -- I certainly 12 respected Dr. Rasaiah's knowledge base; as I understood, 13 he was a certified forensic pathologist, though -- though 14 I -- I may be wrong on that. 15 My perspective was from pediatric 16 pathology; that is, what is -- what is the range of -- of 17 what we would see in pediatric pathology, and so that was 18 the basis of my input; to simply express an opinion on 19 photographs based on my reference in seeing children's 20 autopsies. 21 MS. LINDA ROTHSTEIN: Okay. I want to 22 turn, then, to the Joshua case, really Dr. Smith, to get 23 you to help us again have some sense of what 24 relationships with the police were like from your 25 perspective; what challenges they created for you in your
481 role as the forensic pathologist; also, some questions 2 about relationships with Crown attorneys. 3 So, could you please find your overview 4 report in Joshua? Ours is at Tab 8 of the white volume, 5 but if you have another place for it, by all means. And 6 you'll also need your written evidence in Joshua's case, 7 which you'll find at Tab I. 8 Mr. Centa's going to help you find the 9 Joshua overview report. 10 DR. CHARLES SMITH: Yeah, thank you. I - 11 - I have these. 12 MS. LINDA ROTHSTEIN: And, Dr. Smith, we 13 were also assisted because Sergeant Greg MacLellan gave 14 evidence last Friday about that case -- some aspects of 15 it. Most of what he had to say is -- is very much 16 documented in -- in the overview report. 17 I don't know if you've had an opportunity 18 yet to review his evidence or not. 19 DR. CHARLES SMITH: I -- I haven't -- I 20 haven't read it all, I'm sorry. So you -- you need to be 21 patient with me. 22 MS. LINDA ROTHSTEIN: I'll take you to 23 it. I'll take you to it. 24 DR. CHARLES SMITH: Mm-hm. 25 MS. LINDA ROTHSTEIN: And -- and you will
491 also slow me down if I'm moving too quickly because we 2 want to make sure that you have every opportunity to 3 orient yourself. We appreciate that's very difficult to 4 do. 5 But a few basic reminders; that young 6 Joshua was the son of Ms. Sherret and died on January the 7 23rd of 1996, at the age of four (4) months. 8 You may recall, Dr. Smith, that the 9 coroner was Dr. Bohn. Initially requested that Dr. 10 Trenlow (phonetic) perform the post-mortem at Belleville 11 General. 12 Remember that? 13 DR. CHARLES SMITH: I -- I do remember 14 that; that the autopsy was initially scheduled for 15 another pathologist or institution, yes. 16 MS. LINDA ROTHSTEIN: Okay. But that in 17 the end that doctor didn't commence the autopsy because 18 the skeletal survey revealed a left distal bucket handle 19 fracture. 20 DR. CHARLES SMITH: That's -- that's my 21 recollection. 22 MS. LINDA ROTHSTEIN: And as a result, 23 the case was sent to the Hospital for Sick Children 24 because that was really the protocol, at the time, as we 25 understand it.
501 Is that right? 2 DR. CHARLES SMITH: That's -- that's 3 right, yes. 4 MS. LINDA ROTHSTEIN: So that what you 5 were used to in 1996 was a situation in which some 6 smaller hospital, that hadn't developed what it viewed as 7 the relevant expertise to deal with these criminally 8 suspicious cases, would send its cases to the Hospital 9 for Sick Children where there was that suspicion? 10 DR. CHARLES SMITH: Yes. 11 MS. LINDA ROTHSTEIN: Okay. That had 12 happened to you a number of times over the years? 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: And is it fair to 15 say, Dr. Smith, that you were comfortable with that 16 practice and thought that that's what your unit should be 17 doing? 18 DR. CHARLES SMITH: Yes. 19 MS. LINDA ROTHSTEIN: We know that in the 20 result, Doctor, you performed the autopsy on the 24th of 21 January of 1996, and I understand that Sergeant MacLellan 22 was in attendance. 23 Turn to page 18 of the overview report, 24 and you can follow this with me if you like. 25 DR. CHARLES SMITH: Slash 18?
511 MS. LINDA ROTHSTEIN: Slash 18. 2 DR. CHARLES SMITH: All right. 3 MS. LINDA ROTHSTEIN: Paragraph 52. 4 DR. CHARLES SMITH: All right. 5 MS. LINDA ROTHSTEIN: By day three (3), 6 it gets a bit easier. 7 Am I -- is this the first time that you 8 had met Sergeant MacLellan? Can you -- do you have an 9 image of him, sitting here today or...? 10 DR. CHARLES SMITH: I don't know if I 11 could pick him out in a shopping mall, but -- but I might 12 be able to identify him in a smaller group. Though -- 13 though we might both have more grey hair now than -- than 14 then, but... 15 I -- I -- I'm sorry, I shouldn't have said 16 that. 17 I did not meet him beforehand. I have not 18 met him since, but I did have a number of conversations 19 with him and obviously, was in conference with him on two 20 (2) or more occasions. 21 MS. LINDA ROTHSTEIN: So, looking at 22 paragraph 52, what's recorded there, and I don't think 23 there's any dispute, is that the body of the child was 24 transferred that morning and that Sergeant MacLellan and 25 Constable DeLong accompanied Joshua's body to the
521 Hospital for Sick Children. 2 They met with you at 10:07; turned over 3 Joshua's body to you. You were provided with the x-rays 4 from Belleville General. And at 10:16, you removed the 5 seal and advised that you would maintain continuity. 6 You also indicated that Joshua's body 7 would be x-rayed and that the officers should return in 8 an hour. And that was one (1) of the things that 9 Sergeant MacLellan first touched on when he gave his 10 evidence last Friday. 11 If we look at the excerpt from his 12 evidence at page 16, 1/24/2008. 13 14 (BRIEF PAUSE) 15 16 MS. LINDA ROTHSTEIN: Registrar, do you 17 have that? It's a transcript of Sergeant MacLellan from 18 1/24/2008. Is that on your list? I think from 19 yesterday. Mm-hm. There we go. Page 16, please. Good. 20 Thank you, Mr. O'Reilly (phonetic). 21 And you'll see Mr. Sandler saying, at page 22 16. It's hard to find on the screen. 23 MR. ROBERT CENTA: Line 13. 24 MS. LINDA ROTHSTEIN: Line 13. There it 25 is. Thank you, Mr. Centa.
531 "And can you describe for the 2 Commissioner what transpired when you 3 met Dr. Smith for the first time? 4 We were in an examining room, and there 5 were other infants to be examined. 6 All right. 7 We spoke to Dr. Smith and, at that 8 point, he asked me to go for a coffee 9 for an hour. They weren't ready for us 10 yet. 11 Okay. 12 It was a discussion around continuity. 13 I wished to stay with Joshua, and he 14 insisted that I leave." 15 Leaving the word "insist" aside, Dr. 16 Smith, do you have any reason to doubt that that's an 17 accurate description of what occurred on that day? 18 DR. CHARLES SMITH: I can't remember 19 specifically, but it was very frequent that police would 20 come along, and there would be delays for scheduling 21 reasons or for x-rays, in which case they, of course, 22 couldn't be in the room. 23 And, so out of kindness, we would say, Go 24 for coffee for an hour, and then -- and then come back, 25 and -- and hopefully we'll be ready to begin.
541 So that -- that would be a typical 2 situation. 3 MS. LINDA ROTHSTEIN: Okay. And if an 4 officer wanted to stay, and felt that it was incumbent on 5 him to maintain continuity throughout -- 6 DR. CHARLES SMITH: Mm-hm. 7 MS. LINDA ROTHSTEIN: -- was it likely 8 that you would have objected to that? 9 DR. CHARLES SMITH: Oh no. No. And 10 there were -- there were situations, both -- sometimes 11 where officers, and sometimes for family reasons, that -- 12 that if someone was to remain with the body, that was 13 certainly acceptable to us. 14 MS. LINDA ROTHSTEIN: So you can't assist 15 us, really, as to how this trans -- this conversation 16 seemed to veer in a different direction? 17 DR. CHARLES SMITH: No. No, I can't. My 18 action, as I indicated here, would have been typical; 19 simply, there's a gap of time, go for coffee. 20 MS. LINDA ROTHSTEIN: All right. And 21 then if you go further down in his transcript, and again 22 there's some indication of this in our overview report as 23 well. 24 Dr. -- Sergeant MacLellan recounted a 25 conversation with you about your direction to him not to
551 take notes during the autopsy. That's at page 20, 2 please, Registrar. Page 20 of that same transcript, 3 please. Thank you. 4 "Dr. Smith asked me not to take notes. 5 I had my notebook out. It's a standard 6 habit of mine to make notes. And it's 7 certainly I feel an obligation of a 8 police officer to make notes. And he 9 instructed me not to take notes. I 10 insisted that I would take notes. They 11 would just be general notes, but I 12 would take notes. 13 MR. SANDLER: All right. Was there any 14 discussion about why it was that he 15 didn't want you to take notes at the 16 autopsy? 17 SERGEANT MACLELLAN: I'm not clear 18 exactly why. He didn't say to me that 19 Toronto -- he did say to me that 20 Toronto police don't take notes, and I 21 explained that I didn't work for the 22 Toronto police, but I didn't understand 23 really why he had a problem with it." 24 And on it goes. 25 DR. CHARLES SMITH: Mm-hm.
561 MS. LINDA ROTHSTEIN: Dr. Smith, what 2 were your practices about police officers taking notes? 3 DR. CHARLES SMITH: Oh, the -- the 4 standard approach, which is -- is what I understood I was 5 to follow, and -- and we all generally followed it, or 6 followed it as a general practice, was to discourage note 7 taking as it would relate to conversations and opinions 8 and such. 9 The -- the very act of performing an 10 autopsy with assistance, and with others who would come 11 into the room, is an exchange of information, and 12 discussion on anything from techniques to possible 13 diagnoses to -- to various considerations. 14 Because -- because those are different 15 opinions that are expressed during the course of doing an 16 autopsy, it was -- it was my understanding, and -- and my 17 colleagues understanding as I discussed it with them, 18 that we didn't want records taken of the process or the 19 discussions that went on. 20 MS. LINDA ROTHSTEIN: Your first thought 21 processes, your -- your brainstorming. The sort of very 22 rudimentary development of your thinking of a case. 23 You didn't want that all memorialized to 24 be picked over forever. Is that -- 25 DR. CHARLES SMITH: Well, the -- the
571 problem is that it could often be -- be quite erroneous. 2 MS. LINDA ROTHSTEIN: Right. 3 DR. CHARLES SMITH: We can be -- you 4 know, begin an autopsy, see something, say, Oh, is it 5 such and such. By the end of the autopsy, we realize 6 it's not. 7 But to someone who is unfamiliar with the 8 pediatric -- with an autopsy, in general, and -- and is 9 specifically a pediatric one (1), that could be very 10 misleading. 11 They could write things down and believe 12 them to be true and, of course, they may have been a 13 reasonable suggestion early on, but at the end of the 14 autopsy they were not, and without -- without being able 15 to understand the entire conversation. 16 And so the -- the preferred approach that 17 we would take was, if there was an officer who was taking 18 notes other than the start of the autopsy who is in the 19 room, certainly there was no objection to that kind of 20 information; that would be expected of the police officer 21 to record when they came in the room, when they left, who 22 may be in the room, that sort of thing. 23 The concern was not at that level; the 24 concern was note taking, or even at times -- there was 25 one (1) or more occasion when the police officers wanted
581 a video camera to record, you know, sight and sound. 2 That was the concern. And the way around 3 that practice was that we would say, You know, don't try 4 and keep up with those or don't write this down because 5 it will be confusing. At the end of the autopsy, we'll 6 try and -- and tell you what you -- what -- it's 7 important for you to know. 8 And so very typically we would do it and 9 then at the end, I would -- oh -- and -- and not even 10 necessarily, at the end. If -- if the case was clearly 11 one (1) that was medical, at some point I could say, I 12 don't think you need to stay. We -- you know, we know 13 what the diagnosis is. We'll be working for awhile. 14 Here's the medical diagnosis. You can leave if you want. 15 At times they would stay to the end and 16 then we would, depending on the case and the situation, 17 we may simply sort of stand in the corner for a minute 18 and say, Okay, here's -- here's the cause of death as 19 best I know it or I really don't have a cause of death. 20 Sometimes we would meet in the conference 21 room, so -- so that instruction to -- to Sergeant or 22 Staff Sergeant MacLellan was not one (1) that I would 23 have given him for the purpose of -- of doing anything 24 other than making sure that there was not a mistake made 25 with the misunderstanding and the -- and the incorrect
591 communication of information that was very preliminary 2 and could be very misleading. 3 MS. LINDA ROTHSTEIN: So this is a, as 4 you probably know, Dr. Smith, a very significant systemic 5 issue for the Commissioner. 6 To what extent and in what manner does one 7 memorialize what happens during the course of the post- 8 mortem examination; who's responsible for it, what 9 information, what vehicle? 10 I take it you agree with me that your own 11 note taking during that process bears some improvement. 12 DR. CHARLES SMITH: Well, from the 13 forensic viewpoint, yes. Of course, my note taking was 14 done because my frame of reference was as a pediatric 15 pathologist and so -- and so my attention was given to 16 trying to find the right diagnosis, as opposed to the 17 processes that are quite different in forensic pathology. 18 MS. LINDA ROTHSTEIN: Forensics aside, 19 Dr. Smith -- 20 DR. CHARLES SMITH: Mm-hm. 21 MS. LINDA ROTHSTEIN: -- do you not agree 22 that in some of these cases, at least, you needed a 23 better record of that post-mortem, if only to be able to 24 write a report some considerable time after the post- 25 mortem examination itself?
601 I'm struggling with how -- 2 DR. CHARLES SMITH: Mm-hm. 3 MS. LINDA ROTHSTEIN: -- you did that 4 without more detailed notes in a couple of these cases. 5 Can you help us with that, sir? 6 7 (BRIEF PAUSE) 8 9 DR. CHARLES SMITH: I believe that the -- 10 that the gross observations or the naked eye observations 11 that I made at autopsy would have been recorded to the 12 degree that was required of the -- of the autopsy, be it 13 hospital or medicolegal, in -- in a timely manner. 14 Sometimes it was done in the autopsy room 15 on a laptop, or even on the -- later, the computer system 16 in the autopsy room. Sometimes they were notes that were 17 written on a piece of paper, and then when I went into my 18 office, I would use those -- you know, seemingly cryptic 19 words, because I knew which blanks that they fit into -- 20 MS. LINDA ROTHSTEIN: Mm-hm. 21 DR. CHARLES SMITH: -- in the report. 22 MS. LINDA ROTHSTEIN: Mm-hm. 23 DR. CHARLES SMITH: And sometimes, of 24 course, it was -- it was dictated. So I'm not sure that 25 -- that I would have recognized that there was a serious
611 issue with note taking, but rather I -- I think I would 2 have said that though there's no such thing as a perfect 3 autopsy report, my reports were certainly characterized 4 by -- by much detail. 5 And I believe they -- they were more than 6 adequate for the task that -- that was presented. 7 MS. LINDA ROTHSTEIN: So the deficiency 8 you now recognize is the deficiency that when you're 9 asked to give evidence about a lot of detailed 10 examination that you did or didn't do on that day, you 11 don't have the benefit of a written record to -- 12 DR. CHARLES SMITH: Of -- 13 MS. LINDA ROTHSTEIN: -- both refresh 14 your memory and confirm it? 15 DR. CHARLES SMITH: Well, it -- it may be 16 a fuller record. It -- I mean, they could be questions 17 or information that was not recorded because it was not 18 part of what would have been recorded -- 19 MS. LINDA ROTHSTEIN: Mm-hm. 20 DR. CHARLES SMITH: -- procedures, for 21 instance, were not -- were not recorded; that was not 22 part of the post-mortem protocol. 23 So -- so I -- I understand that, and I 24 acknowledge that that's an issue that needs to be 25 addressed in terms of the -- or I believe, but I don't
621 want to be making recommendations to you, but I think 2 that that points to the discrepancy between what I, as a 3 diagnostic pathologist, understood and what a forensic 4 pathologist would have understood. 5 MS. LINDA ROTHSTEIN: Okay. One of the 6 other things that Sergeant MacLellan was asked to 7 explain, was the issue that arose in this case about the 8 possibility that mould had played a role in the death of 9 this young child. 10 And he recounted how two (2) days after 11 the autopsy, Joshua's mom, Ms. Sherret called him and 12 informed him about the mould problem in her apartment and 13 wondered if Joshua's death had something to do with the 14 mould. 15 Do you remember that issue surfacing in 16 this case, Dr. Smith? 17 DR. CHARLES SMITH: It surfaced at some 18 point in time. I -- I couldn't have told you it was two 19 (2) days later, but it certainly surfaced because he had 20 directed my attention to it, and then we undertook some 21 special and -- and perhaps, unusual studies to -- to 22 address that concern. 23 MS. LINDA ROTHSTEIN: If we turn to page 24 35 of that same transcript please, Registrar, I can show 25 you what Dr. McLellan -- Dr. McLellan -- Sergeant
631 MacLellan said in answer to some of Mr. Sandler's 2 questions about this: 3 "So help me out as to this. At this 4 meeting, and perhaps at other meetings 5 which I will ask you about, you raised 6 the issue of mould, and whether or not 7 it could explain the dea -- the death. 8 What was Dr. Smith's attitude or 9 responsiveness to the issue of mould, 10 if I may put it that way? 11 A: He was very dismissive of the 12 theory, and I found it frustrating. I 13 didn't mind that if he was going to 14 say, No, it didn't cause the death. I 15 just wanted to understand that he was 16 saying this scientifically; that he had 17 done the investigation and could 18 support that statement rather than just 19 off hand. 20 Commissioner: Did he explain it to you 21 or just give you a flat no? 22 Just a -- just a no. And then in later 23 conversations when I discussed my 24 investigation into the deaths in 25 Cleveland that were being studied, and
641 the fact that the Centre for delise -- 2 Disease Control had funded some very 3 large amounts of money towards this; 4 that these people are going to look 5 like they're legitimate experts and 6 have a legitimate investigation going 7 on; that he felt that -- that they 8 weren't professional, and that it was 9 probably just cases of child abuse as 10 well." 11 Now, Dr. Smith, just before you answer any 12 questions I have about that, there are a number of 13 references in our overview report as to when these 14 conversations took place. 15 I can tell you, sir, that the one (1) 16 conversation that Sergeant MacLellan was referring to 17 there referred specifically to a meeting February 8th, 18 1996. I can orient you to that if you like. But I was 19 going to keep the questions more general 20 DR. CHARLES SMITH: Yes, do that please. 21 MS. LINDA ROTHSTEIN: -- and really ask 22 you whether you think, Doctor -- whether you think your 23 attitude to this issue has been accurately characterized 24 by this officer? 25 DR. CHARLES SMITH: I can't remember the
651 -- the phone conversation specifically, but if that's -- 2 MS. LINDA ROTHSTEIN: This is a meeting 3 actually, that he's -- 4 DR. CHARLES SMITH: Oh. 5 MS. LINDA ROTHSTEIN: -- first referring 6 to. 7 DR. CHARLES SMITH: Oh, this is a 8 meeting? 9 MS. LINDA ROTHSTEIN: Yeah. 10 DR. CHARLES SMITH: I'm sorry. 11 MS. LINDA ROTHSTEIN: There was a phone 12 call at first -- 13 DR. CHARLES SMITH: Mm-hm. 14 MS. LINDA ROTHSTEIN: -- then -- 15 DR. CHARLES SMITH: And then -- 16 MS. LINDA ROTHSTEIN: -- a meeting. 17 DR. CHARLES SMITH: And then a meeting. 18 Yes. 19 If -- if that's the way I appeared, then I 20 -- I owe him an apology. The request was an unusual one 21 (1) but nevertheless, I believe it was a valid one (1) 22 because it was something that was of importance to them. 23 And -- and as I responded to it, I -- I 24 became aware that, in fact, there was some preliminary 25 research that supported that. And so I acted in a way
661 that considered, and considered very seriously, that 2 possibility. 3 I don't know if I need take you to the 4 autopsy report, but there was testing that I specifically 5 mentioned in the autopsy report which was unusual testing 6 that was done for the very purpose and would never have 7 been done had Staff Sergeant MacLellan not brought that 8 possibility forward. 9 I do remember telephoning the Centres for 10 Disease Control in Atlanta and discussing with some 11 researcher, and I -- I can't remember a name, about the 12 very preliminary study from Cleveland and what the 13 possibilities were and what possible interpretations of 14 the pathology were. 15 And at the end of that conversation, I had 16 a better understanding of -- of what the -- of what some 17 of the possible interpretations were. 18 I also spoke to -- I made a phone call and 19 spoke to again another person -- who I can't remember a 20 name, and I'm sorry -- about the issue as to the testing 21 for this material. 22 There was an attempt made at another 23 centre, and again, I don't know if it was CDC or if it 24 was Cleveland, but an attempt was made at another centre 25 to identify the actual toxin associated with the mould.
671 That centre had attempted the technique, 2 as I understood it, and couldn't do it. And when I 3 recognized that that was a technique that was available 4 at the Hospital for Sick Children, a very specialized 5 technique, but one (1) that could be done there; in fact, 6 I spoke to the head of the appropriate laboratory and 7 asked as a -- and asked that it be done. 8 So I believe my actions in all of that 9 indicated that not only did I consider the concern, but I 10 responded to it. And because of the extraordinary 11 environment that Sick Kids is, was able to respond to it 12 by doing testing that wouldn't have generally been 13 available elsewhere. 14 So I believe my response was clear, but -- 15 but I -- I do want to underscore my first statement, and 16 that is that if this is how I appeared to Staff Sergeant 17 MacLellan, then I owe him an apology. 18 MS. LINDA ROTHSTEIN: And indeed, I think 19 the tenor of his evidence, I can take you to it, was that 20 he -- you did this at his urging and beseeching as much 21 as anything else. 22 DR. CHARLES SMITH: Certainly, the 23 finding of mould -- you know, if -- if anyone had simply 24 said, Oh, there's mould in the building, that would not 25 have necessarily triggered me to have gone to the lengths
681 that I went. 2 The concern was very real to him and 3 whether it was a concern for the realistic possibility of 4 a medical cause or -- or a concern to rule out a possible 5 medical cause, it was, nevertheless, a real concern. And 6 -- and I believe that I, on a medical or scientific 7 basis, answered that concern. 8 MS. LINDA ROTHSTEIN: At that same 9 meeting where this issue of mould was first addressed and 10 spoken about by Dr. -- by Sergeant MacLellan in his 11 evidence -- the February 8th, 1996 meeting; at the end of 12 the meeting there was a discussion that you have said in 13 your written evidence you don't recall. 14 Would you turn to paragraph 89 of the 15 overview report at slash 35, please. And we have a 16 record of this from Sergeant MacLellan's memo book, as 17 well as from his colleague's memo book, and this is 18 what's recorded; that is to say, Sergeant Blakely's 19 notes as well: 20 "Met with Dr. Smith. Reviewed cases. 21 Showed medical records. Reviewed 22 actions of mother Sherry. I used a 23 question sheet to canvas several points 24 and wrote answers on the sheet." 25 And stopping there, Dr. Smith, if you look
691 back at the previous pages of that overview report, they 2 recount in considerable detail the written questions that 3 you were asked by Sergeant MacLellan, and his record of 4 your answers. Starting on the bottom of page slash 32. 5 I think I've said February 6th a couple of 6 times. It's February 8th. The sheet titled, Questions 7 for Dr. Smith: 8 "Sergeant Blakely asked Dr. Smith's 9 opinion on whether she killed the baby. 10 States he thinks she killed him. 11 States there are some indications in 12 mothers that kill babies; usually talks 13 about it ahead of time, about the baby 14 dying, or that she will kill it, 15 relationship problems, or custody 16 battles, getting back at the father 17 will plan it. May talk about how they 18 will do it." 19 And then you'll see on -- over the page 20 that Sergeant Blakely's notes confirm a very similar 21 account of what you said at the end of that meeting. 22 And now I'm just going to take you to what 23 Sergeant MacLellan told us to amplify that information 24 when he testified, and you will see that at page 38, Dr. 25 Smith, if you would for the moment, of the transcript of
701 his testimony here last week. 2 So we want to go back to the transcript 3 please, Registrar; page 38 of the 1/24/2008. 4 5 (BRIEF PAUSE) 6 7 MS. LINDA ROTHSTEIN: Page 38. Great. 8 Terrific. So if you see in the bottom of that page; line 9 22: 10 "Sergeant Blaky -- Blakely asked Dr. 11 Smith's opinion on whether she, meaning 12 the mother, killed the baby. He 13 responded that he thinks she killed 14 him. He went on to list some 15 indication in mothers -- signs in 16 mothers that kill babies, and he went 17 on to describe some of those; as 18 usually talks about it ahead of time, 19 about the baby dying, or that she will 20 kill it; relationship problems; custody 21 battles; getting back at the father; 22 will plan it; may talk about how they 23 will do it. 24 MR. SANDLER: All right. And did you 25 regard these as matters upon which a
711 forensic pathologist could opine? I'm 2 just wondering what your mind set was 3 when -- when he's indicating to you 4 that -- that there are indications that 5 in mothers that kill babies, such as 6 their relationship problems, or custody 7 battles; getting back at the mother 8 (sic); that they tend to plan it; that 9 they talk about how they're going to do 10 it. What did you take from that? 11 SERGEANT MACLELLAN: I was very 12 uncomfortable with the conversation. I 13 wouldn't have asked the question 14 myself." 15 So stopping there for the moment, Dr. 16 Smith, I -- I see from your written evidence -- 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: -- that you don't 19 dispute that you may, indeed, have said that. 20 DR. CHARLES SMITH: That's correct. 21 MS. LINDA ROTHSTEIN: And you recognize 22 that listing what you've described in your written 23 evidence as the possible hallmarks of this sort of -- 24 "Possible hallmark characteristics of a 25 mother who kills."
721 -- I'm quoting from your statement, was inappropriate? 2 DR. CHARLES SMITH: I agree with that 3 completely, yes. 4 MS. LINDA ROTHSTEIN: All right. So my 5 question for you, Dr. Smith, is: Was this the first 6 time that you had offered up this kind of explanation for 7 your conclusion? 8 DR. CHARLES SMITH: The first time in -- 9 MS. LINDA ROTHSTEIN: In a case. 10 DR. CHARLES SMITH: -- in a case? 11 MS. LINDA ROTHSTEIN: Or did you do this 12 from time to time in candour, Dr. Smith? 13 DR. CHARLES SMITH: I -- I have no 14 specific recollection of -- of that. 15 MS. LINDA ROTHSTEIN: Okay. 16 DR. CHARLES SMITH: I can't -- I can't 17 answer what speculations I may have made, but I recognize 18 that if I've done them, it was wrong. 19 MS. LINDA ROTHSTEIN: And do you 20 recognize as well, sir, that this conversation - what you 21 communicated to the officer - suggests that you'd made up 22 your mind about Ms. Sherret's guilt at an early stage of 23 the death investigation? 24 You hadn't written your post-mortem 25 report, sir, by the way. This is before you authored it.
731 DR. CHARLES SMITH: Yeah. I -- I can't 2 put my mind back to -- to that thinking. I simply don't 3 remember. 4 COMMISSIONER STEPHEN GOUDGE: Why did you 5 do it, Dr. Smith? 6 DR. CHARLES SMITH: In terms of providing 7 the -- 8 COMMISSIONER STEPHEN GOUDGE: Yes. 9 DR. CHARLES SMITH: -- social -- 10 COMMISSIONER STEPHEN GOUDGE: Yes. 11 DR. CHARLES SMITH: -- the social risk 12 factors? 13 COMMISSIONER STEPHEN GOUDGE: Yes. 14 DR. CHARLES SMITH: It was information 15 which -- which I would have known. It's not specifically 16 pathology information, but it is information that one can 17 find in the pathology -- in the forensic pathology 18 literature. It's information that I would have known 19 that may not be known to others. 20 And so when I did give that information to 21 police, be it in lectures that I gave or whatever, it was 22 always on the basis that here's -- here are recognized 23 risk factors. 24 And so it was given for the purpose of -- 25 of being helpful or in the situation of a lecture --
741 trying to educate them. But I recognize that that's 2 misguided; please understand that. 3 4 CONTINUED BY MS. LINDA ROTHSTEIN: 5 MS. LINDA ROTHSTEIN: So having 6 acknowledged that that comment was indeed inappropriate, 7 you also understand that it does suggest that you had 8 dismissed the possible alternative explanations before 9 they had been fully explored? 10 DR. CHARLES SMITH: In -- in this case, 11 the -- the possibilities of -- of accidental causes or 12 natural disease, I didn't -- I didn't have evidence for, 13 and -- and had formed or was forming a conclusion of -- 14 of asphyxia based on the components. But acknowledgely - 15 - but -- but I acknowledge that that -- that that was a 16 mistake. 17 MS. LINDA ROTHSTEIN: Mm-hm. I mean, 18 indeed, sir, this is before you did all the work you told 19 us you eventually did on the mould theory, right? 20 Your post-mortem -- 21 DR. CHARLES SMITH: I -- I think that -- 22 well, the -- the work on the mould began after it was 23 communicated to me, but I'm not sure. At this point in 24 time, without actually looking at the documents, I 25 couldn't tell you whether it was -- where it stood in
751 terms of this conversation. 2 MS. LINDA ROTHSTEIN: You hadn't yet 3 authored your post-mortem. That was March 21, 1996; 4 that's it dated. 5 DR. CHARLES SMITH: Yeah. 6 MS. LINDA ROTHSTEIN: But we'll come to 7 that. 8 DR. CHARLES SMITH: But the -- but when 9 the mould was first presented to me, I acted on it at 10 that time. So that would have been whenever that was. 11 I'm sorry, was it -- 12 MS. LINDA ROTHSTEIN: Well, it was -- 13 DR. CHARLES SMITH: Do you have the date? 14 MS. LINDA ROTHSTEIN: It was presented to 15 you and you said no, and simply no, in this same meeting 16 on February the 8th, 1996. 17 That was where you first dismissed it as 18 described by Dr. -- 19 DR. CHARLES SMITH: Yeah. 20 MS. LINDA ROTHSTEIN: -- by Sergeant 21 MacLellan. And later on there were some further 22 investigation of it and that's absolutely true, but I'm 23 suggesting that that didn't evolve until considerably 24 later. 25 DR. CHARLES SMITH: I -- I -- I'm -- I'm
761 suddenly lost here without -- without going over the 2 specific dates. But -- but I accept -- I accept what has 3 been indicated here. 4 MS. LINDA ROTHSTEIN: Just to help orient 5 you on that, you received Dr. Smith -- or sorry, Dr. 6 Becker's report -- if you look at paragraph 122 -- on 7 March 18th, 1996. He released his report on Joshua's 8 centre ner -- central nervous system. 9 Do you see that at the overview report at 10 slash -- 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: -- 46? 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: All right. 15 DR. CHARLES SMITH: But the -- the mould 16 issue would have been -- would have been handled long 17 before that period of time, as I recall. 18 MS. LINDA ROTHSTEIN: Well, it had been 19 raised, but not conclusively dealt with, I think, to be 20 fair. 21 Now, does it suggest, sir, that your 22 reasoning process was influenced, in part, by what we 23 would argue are irrelevant factors; that this mother had 24 possible relationship problems or things of that nature? 25 Can we fairly conclude that that may have influenced your
771 opinion, even a little? 2 3 (BRIEF PAUSE) 4 5 DR. CHARLES SMITH: I don't have specific 6 recollection on that. In general, my approach to the 7 autopsy was -- was rather uniform, and -- and so I would 8 suggest to you that -- that those risk factors did not 9 ultimately colour or affect my diagnosis. 10 MS. LINDA ROTHSTEIN: You do acknowledge 11 in your written evidence, Dr. Smith, that Ms. Sherret's 12 threat to smother Joshua; what you knew of that and what 13 you describe as -- 14 DR. CHARLES SMITH: Mm-hm. 15 MS. LINDA ROTHSTEIN: -- circumstantial 16 evidence distracted you. 17 DR. CHARLES SMITH: Yes, I believe it 18 did. 19 MS. LINDA ROTHSTEIN: Do you, therefore, 20 acknowledge that it, indeed, formed a far too important 21 factor in your reasoning process? 22 DR. CHARLES SMITH: Certainly in the 23 diagnosis of -- of asphyxia it did. I acknowledge that, 24 yes. 25 MS. LINDA ROTHSTEIN: It was indeed
781 integral to your analysis and conclusions, was it not? 2 DR. CHARLES SMITH: In my diagnosis, yes, 3 it was. 4 MS. LINDA ROTHSTEIN: And is that, 5 perhaps, one (1) of the reasons that you didn't take the 6 mould issue as seriously as Sergeant MacLellan might have 7 wished you had? 8 DR. CHARLES SMITH: I believe I took the 9 mould issue as seriously as I could, and I believe my 10 actions in considering it demonstrated that I went above 11 and beyond what -- what normally would have been done to 12 rule out the possibility of an infection. 13 The fact that -- that I did that, I think 14 is clear indication that I took the possibility 15 seriously. I -- I acknowledge that I may not have 16 communicated that to -- to Staff Sergeant MacLellan, but 17 I very carefully, and it took no small amount of time, to 18 search for that possibility, and I did -- and I did so, 19 as I said, using testing that wasn't generally available 20 and making telephone calls to help better understand how 21 I would do that, so I did not -- I did not dis -- dismiss 22 it. 23 It was acted on very seriously with all of 24 the technology that was available to me in a -- in a 25 specialized centre.
791 MS. LINDA ROTHSTEIN: Dr. Smith, would 2 you turn to slash 51, please, of that same overview 3 report for Joshua's case and look at paragraph 136? It 4 deals with the post-mortem report which you authored, 5 sir. It reads: 6 "It is not evident from the 7 Commission's documents when Dr. Smith 8 issued his final signed report of post- 9 mortem examination." 10 And if you go to the bottom of the page, 11 you'll see that that post-mortem examination is actually 12 dated March 21, 1996. And we have the document number -- 13 DR. CHARLES SMITH: Mm-hm. 14 MS. LINDA ROTHSTEIN: -- for that, which 15 we could call up. I want you turn now to paragraph 148 16 of that same overview report at slash 57. 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: Because the 19 evidence which we've collected suggests that on April 11, 20 1996 at 14:00, so after the date of your report, at 21 least, on its face, a meeting was held at the Crown's 22 office, and in attendance were Ms. Walsh -- that's Sheila 23 Walsh, who was the Crown Attorney. 24 Do you remember her, Dr. Smith? 25 DR. CHARLES SMITH: I have some
801 recollection; not clear recollection. 2 MS. LINDA ROTHSTEIN: All right. 3 Sergeant MacLellan, who we've spoken of -- 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: -- Dr. Cairns, Dr. 6 Bechard, who was the coroner, Regional Coroner, right? 7 DR. CHARLES SMITH: I don't remember Dr. 8 Bechard's presence at the meeting, but -- but I have no 9 doubt that if it's recorded that he's there, then he 10 would have been there. 11 MS. LINDA ROTHSTEIN: And you do remember 12 his involvement? 13 DR. CHARLES SMITH: He was -- he was the 14 Regional Coroner for that area, yes. 15 MS. LINDA ROTHSTEIN: Okay. And 16 according to the evidence we have, and specifically 17 Sergeant Blakely, it was at this meeting that you 18 actually signed the report of post-mortem examination. 19 So on April 11th, it was signed but it had 20 been dated on March 21st, 1996. Can you help us with 21 that at all, please? 22 DR. CHARLES SMITH: I have no specific 23 recollection of that. 24 But it -- but as I -- as I finished post- 25 mortem reports I would then sign then and be sent off to
811 the Coroner's Building. So -- so there would have been a 2 -- something would have been submitted sometime, some 3 days earlier. 4 MS. LINDA ROTHSTEIN: I can take you back 5 through -- 6 DR. CHARLES SMITH: Yeah. 7 MS. LINDA ROTHSTEIN: -- all the minutiae 8 of that -- 9 DR. CHARLES SMITH: Yeah. 10 MS. LINDA ROTHSTEIN: -- I'd rather not. 11 DR. CHARLES SMITH: But -- yeah, I 12 understand. It would -- it would not be -- in general, 13 it would not be uncommon for me to go to a meeting with a 14 new computer printout of the report, because I wouldn't 15 necessarily, you know, have -- have one (1). So... 16 MS. LINDA ROTHSTEIN: Dr. Smith, do you 17 acknowledge that there may have been a couple of 18 occasions where you backdated a report? 19 DR. CHARLES SMITH: I -- I backdated in 20 the computer system to match sign-out dates on a report 21 so that the computer system was accurate, yes. 22 MS. LINDA ROTHSTEIN: We'll leave that -- 23 DR. CHARLES SMITH: Mm-hm. 24 MS. LINDA ROTHSTEIN: -- for -- for the 25 moment. Let -- let's look at the contents of your post-
821 mortem. 2 And back to paragraph 136, because I want 3 to ask you some questions about the skull fracture issue. 4 You'll see that it records -- the overview report at 5 slash 51, paragraph 136, clearly records your abnormal 6 findings. It's taken verbatim from your report, Dr. 7 Smith. 8 And you'll see in paragraph 137, it is 9 recorded that the cause of death was listed as asphyxia 10 and that the report also indicated that the skull was not 11 fractured. 12 It wasn't just that -- you didn't say 13 anything -- 14 DR. CHARLES SMITH: Mm-hm. 15 MS. LINDA ROTHSTEIN: -- one (1) way or 16 the other, you actually said in the post-mortem -- and 17 I've looked at it, we can look at it together if you like 18 -- "skull not fractured." Does -- 19 DR. CHARLES SMITH: In the -- in the -- 20 MS. LINDA ROTHSTEIN: -- accord with your 21 recollection? 22 DR. CHARLES SMITH: -- in the gross 23 examination? 24 MS. LINDA ROTHSTEIN: Correct. 25 DR. CHARLES SMITH: Yes. Yes.
831 MS. LINDA ROTHSTEIN: That accords with 2 your recollection? 3 DR. CHARLES SMITH: Yes. 4 MS. LINDA ROTHSTEIN: All right. 5 Now, Sergeant MacLellan also testified 6 about this issue of the skull fracture and how it was 7 that it first came to his attention. And I am going to 8 have to help you with the time line here. So now you 9 need to go to paragraph 152, because it's not an easy 10 chronology, Dr. Smith, to remember. 11 So, paragraph 152/59, just to assist us 12 all in recalling this chronology. We've got a report 13 from you that's signed in April of '96. And on January 14 the 10th of '97, in advance of the January 27, 1997 15 commencement of the preliminary inquiry, Mr. Hillier, who 16 was acting for the defence, wrote to Ms. Walsh. The 17 letter was copied to Sergeant MacLellan. He wrote: 18 "As you know, we have tried 19 unsuccessfully on several occasions, 20 using various methods of communication, 21 to get Dr. Smith to provide us with the 22 slides as per our agreement before 23 Christmas. The matter was left with 24 Dr. Smith, given his apparent family 25 crisis, that he would get back to us
841 upon his return with respect to the 2 slides. It is now January 10th, 1997, 3 and we have not heard from anyone. 4 And the purpose of this letter is 5 simply to communicate to you firstly; 6 and secondly, to advise you that I will 7 be asking and attempting to insist that 8 my cross-examination of Dr. Smith not 9 take place as and until I have the 10 slides and have them reviewed by my 11 expert." 12 And the -- so, I can help you. What he's 13 saying is the preliminary, at that stage, had been 14 scheduled to commence later that month. At the end of 15 the month, you were going to be a witness, and he didn't 16 want to do that until there had been this transfer of the 17 slides. 18 Do you remember that feature of this case, 19 Dr. Smith? 20 DR. CHARLES SMITH: I -- I don't have a 21 specific recollection, no. I -- 22 MS. LINDA ROTHSTEIN: Do you -- 23 DR. CHARLES SMITH: I -- 24 MS. LINDA ROTHSTEIN: Do you remem -- 25 DR. CHARLES SMITH: I'm sorry?
851 MS. LINDA ROTHSTEIN: Do you remember 2 anything about having to look for slides and the 3 difficulty in retrieving them and the time delays in 4 that? 5 DR. CHARLES SMITH: I don't have specific 6 recollection of that, no. 7 MS. LINDA ROTHSTEIN: He goes on to say: 8 "I mention this to you now because the 9 preliminary inquiry is fast 10 approaching, and I have run out of the 11 window of time needed to have all this 12 take place in order to properly prepare 13 for Dr. Smith's cross-examination. 14 I would respectfully suggest in any 15 event, that we are not going to get 16 through forty (40) witnesses in five 17 (5) days, and that we simply make a 18 point of scheduling Dr. Smith for some 19 other time in the future on the 20 optimistic assumption that somehow, 21 someone, will be able to obtain the 22 slides from him and get them to us in a 23 timely fashion. I am reminded that the 24 x-ray of the foot is also part of the 25 package and so on."
861 So, at least, are you oriented in time, 2 Dr. Smith? 3 DR. CHARLES SMITH: I'm trying to be, 4 yes. 5 MS. LINDA ROTHSTEIN: All right. So then 6 we go -- go on to paragraph 154. Very shortly after 7 that, Ms. Walsh writes to defence counsel, and I believe 8 this is the first record we have of the skull fracture 9 being raised as an issue. 10 And Crown counsel, Ms. Walsh, writes to 11 defence; you weren't copy with this, but she says: 12 "I have just been informed by Dr. Smith 13 that one (1) of the microscopic slides 14 from the post-mortem discloses a skull 15 fracture. Dr. Smith apparently just 16 realized that the fracture is not noted 17 in his report. I have asked Dr. Smith 18 to send me a description of the 19 fracture, and we'll disclose this as 20 soon as I receive it." 21 And I think that's the first note that we 22 have of this being raised as an issue. So it looks, as 23 best we can tell, Dr. Smith, like you raised this issue 24 sometime in early January with Ms. Walsh. 25 Do you have any reason to dispute the
871 accuracy of that assumption -- 2 DR. CHARLES SMITH: No. 3 MS. LINDA ROTHSTEIN: -- working 4 assumption? 5 DR. CHARLES SMITH: No, no I don't. 6 MS. LINDA ROTHSTEIN: All right. Do you 7 remember raising it with her? 8 DR. CHARLES SMITH: No, I don't. 9 MS. LINDA ROTHSTEIN: Okay. All right. 10 And then she writes to you the next day, or within a day, 11 on the 17th of January, this is paragraph 155, regarding 12 his amended opinion that Joshua had a skull fracture, she 13 stated: 14 "Further to our recent conversation, 15 would you kindly send your amended 16 description concerning the skull 17 fracture noted during your examination 18 of baby Joshua. Upon review of your 19 post-mortem report I note that at page 20 3, paragraph 7, the description is 21 skull normal. There was no evidence of 22 a skull fracture." 23 And she's put that in quotes. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN:
881 "Would you therefore include a brief 2 note explaining what happened, i.e., 3 does this mean that no evidence or 4 fracture was visible to the plain eye, 5 but was later discovered through 6 microscopic examination?" 7 Fair question, right? 8 DR. CHARLES SMITH: Yes. 9 MS. LINDA ROTHSTEIN: 10 "I appreciate you are very busy, 11 however, a very short note could 12 provide the necessary information for 13 me to disclose to counsel for the 14 defence, and this is new information. 15 I will agree to -- as this is new 16 information, I will agree to postpone 17 your evidence to a date in February or 18 March." 19 So stopping there for a moment, fair 20 request from her, Dr. Smith? 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: Any reason not to 23 oblige Ms. Walsh with a further explanation in writing of 24 some kind? 25 DR. CHARLES SMITH: I should have.
891 MS. LINDA ROTHSTEIN: Okay. Now -- now I 2 want to take you if I can, to Sergeant MacLellan, because 3 as it evolves, Ms. Walsh and Sergeant MacLellan actually 4 travel to Toronto to meet with you in February of that 5 year to discuss this issue and others. 6 And we have notes of that meeting that are 7 almost impossible to read, Dr. Smith, but if you want a 8 break and you want to review them, we could take the 9 break and you could do that. 10 Or I can just take you to the testimony? 11 DR. CHARLES SMITH: Um... 12 MS. LINDA ROTHSTEIN: Would you like to 13 take a break and have a chance to go over that? 14 DR. CHARLES SMITH: It -- I don't want to 15 suggest what -- what the Commissioner could do, but -- 16 MS. LINDA ROTHSTEIN: If it's -- 17 DR. CHARLES SMITH: -- but if it would 18 help -- if it would help speed up the answering process, 19 it -- 20 MS. LINDA ROTHSTEIN: It might. 21 DR. CHARLES SMITH: -- it may be a more 22 efficient use of our time. 23 MS. LINDA ROTHSTEIN: Okay. 24 Commissioner, -- 25 COMMISSIONER STEPHEN GOUDGE: Why don't
901 we take -- 2 MS. LINDA ROTHSTEIN: -- what -- what do 3 you say about a slightly -- 4 COMMISSIONER STEPHEN GOUDGE: -- the 5 morning break now? 6 MS. LINDA ROTHSTEIN: -- early break? 7 COMMISSIONER STEPHEN GOUDGE: We'll be 8 back just before 11:30. 9 10 --- Upon recessing at 11:12 a.m. 11 --- Upon resuming at 11:38 a.m. 12 13 THE REGISTRAR: All Rise. Please be 14 seated. 15 COMMISSIONER STEPHEN GOUDGE: Ms. 16 Rothstein...? 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: Thank you for the 20 longer break, Commissioner, it was of assistance to me, 21 and I hope, Dr. Smith, it was some assistance to you in 22 dealing with what is certainly a lot of documentation. 23 DR. CHARLES SMITH: Thank you. 24 MS. LINDA ROTHSTEIN: So you have now had 25 an opportunity to review, I trust, the notes of Sergeant
911 MacLellan for February 10th of 1997? 2 DR. CHARLES SMITH: Yes. Mm-hm. 3 MS. LINDA ROTHSTEIN: And it was about 4 his meeting with you in the hospital in -- 5 DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: -- Toronto? 7 DR. CHARLES SMITH: Yes. 8 MS. LINDA ROTHSTEIN: And let's now look, 9 if we can, at his evidence on that issue, which is at 10 page 73 of Sergeant MacLellan's transcript, Registrar. 11 And you will see that Mr. Sandler begins 12 this inquiry about how it was that the skull fracture was 13 raised by you, and you'll see in the middle of that page 14 he talks about: 15 "We had a meeting with him in Toronto. 16 Myself and Sheila Walsh came out, and 17 spoke to him in preparation for his 18 evidence in the prelim." 19 Just stopping there for a moment. So, Dr. 20 Smith, how typical or untypical was this; a meeting 21 before you gave your evidence at the prelim? 22 I understood you to tell us previously 23 that you wished you'd had more of those opportunities 24 over the years. 25 DR. CHARLES SMITH: This -- before a
921 prelim, this would have been more atypical than typical, 2 I think. It would be in the minority of instances, I 3 think. 4 MS. LINDA ROTHSTEIN: Okay. All right. 5 Mr. Sandler says: 6 "And what explanation, if any, did he 7 provide as to why it was that the skull 8 fracture was only coming to light?" 9 Because remember, Dr. Smith, this is a 10 year after you had completed, or not quite a year, but 11 many, many months after you had completed your post- 12 mortem, in which you'd said something different. 13 "MR. MACLELLAN: I believe he said it 14 was a typo. That it wasn't included in 15 the original report. I questioned him 16 as to whether he had, in fact, 17 discovered this fracture in his 18 preparation for the preliminary 19 hearing, and if so, to state it that 20 way. And he insisted that no, he had 21 discovered it during the initial exams 22 before the final report, and that it 23 was, I believe, a typo as to why it 24 didn't appear in the report. 25 MR. SANDLER: All right. So that -- so
931 that I take it your question arose in 2 part because his report of post-mortem 3 examination wasn't just silent on 4 whether -- silent on the issue, but it 5 actually said no evidence of skull 6 fracture, and here he was saying there 7 was a skull fracture. 8 MR. MACLELLAN: And I had numerous 9 conversations with him throughout that 10 period, and it was not mentioned." 11 So -- and then he goes on to give evidence 12 consistent with that. 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: And just before you 15 answer my question, Dr. Smith, you can look at your 16 written evidence, and you will see that you actually 17 spoke to this issue, and gave us the benefit of your best 18 recollection at that stage when you prepared this, at 19 page 65. 20 DR. CHARLES SMITH: Yes, I have that. 21 MS. LINDA ROTHSTEIN: Under Discovery of 22 the Skull Fracture: 23 "Dr. Smith believes that around the 24 time he was preparing for the 25 preliminary inquiry, he located a slide
941 of the skull. Slides for bone mascrop 2 -- microscopy typically take longer to 3 process. Dr. Smith believes that when 4 he finalized his post-mortem 5 examination report, the slide had not 6 yet returned from the laboratory, but 7 he did not notice its absence. However 8 this is speculation on his part." 9 So, Dr. Smith, please help us, which 10 account of the events is accurate? 11 DR. CHARLES SMITH: What I've said in my 12 statement is to the best of -- of my recollection. I 13 certainly always recognized that there had been, by 14 virtue of hemorrhage, something that related to the skull 15 or brain that may have even gone back as far as birth. 16 So I recognized there was a head injury, 17 but to the best of my recollection, the possibility, or 18 the likelihood of a skull fracture, microscopically, was 19 -- was much after, though I should have noted in my 20 report that I had considered skull injury and had taken a 21 section. 22 So I had omitted an appropriate notation 23 of that, so that should have been done. But to the best 24 of my recollection, it was some time afterwards, 25 significantly afterwards.
951 MS. LINDA ROTHSTEIN: Okay. In either 2 event, whether it was a typo as you apparently 3 characterised it to Sergeant MacLellan that had to be 4 corrected, or it was new information that came from your 5 further review of the histology, there's no doubt that 6 you had an obligation to formally amend your post-mortem 7 report. 8 Isn't that true? 9 DR. CHARLES SMITH: Well, it -- it was 10 not my custom or practice, to send out addendum reports, 11 but I do recognize in this case that I should have, and I 12 erred in that. 13 MS. LINDA ROTHSTEIN: But just casting 14 your mind back to 1997, even then with the less 15 information you had about how everything works and what 16 was required, you understood then, did you not, Dr. 17 Smith, that as a new discovery, this was very 18 significant. 19 DR. CHARLES SMITH: Yes. Yes, it was 20 significant, yes. 21 MS. LINDA ROTHSTEIN: And that it made 22 sense for the Crown attorney to be insisting on you 23 documenting it in some way. 24 DR. CHARLES SMITH: I can agree with 25 that, yes.
961 MS. LINDA ROTHSTEIN: All right. And 2 just while we're on that point, there's no doubt that you 3 had some considerable familiarity with the way the 4 Criminal Justice System worked by 1997, whether or not 5 you had obtained that through any formal education. 6 Isn't that fair, Dr. Smith? 7 DR. CHARLES SMITH: I had a growing 8 knowledge, yes. 9 MS. LINDA ROTHSTEIN: Is it fair to say 10 that as a member of the PDRC for fifteen (15) years, from 11 1988 to 2003, you had had many, many occasions to 12 interact with police officers and Crown attorneys? 13 DR. CHARLES SMITH: No. No, the -- the 14 PDRC tended to avoid such things. It really dealt with 15 medical issues. There -- ultimately, there were one (1) 16 or two (2) persons who were -- who joined the Committee 17 from police services, but no -- but that was for help in 18 getting information for the Committee. 19 So -- so the PDRC did not -- did not have 20 a major role or a major activity with police or Crown 21 attorneys. I -- I -- 22 MS. LINDA ROTHSTEIN: Let me rephrase the 23 question. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN: I take your point
971 that it wouldn't have been -- the way the Criminal 2 Justice System worked wouldn't have been an active agenda 3 item during that Committee, but I am suggesting to you 4 that as a regular member of that Committee, you got to 5 know some of the very -- very experienced homicide 6 officers in the city of Toronto. 7 DR. CHARLES SMITH: No, that -- I -- I 8 did get to know and to work with some of them, but it was 9 not through that Committee at all, no. 10 MS. LINDA ROTHSTEIN: Okay. And that 11 isn't how you got to know some Crown Attorneys quite 12 well, as well, through your work on that Committee? 13 DR. CHARLES SMITH: Without someone 14 reminding me to the opposite, I can't remember getting to 15 know any Crown attorney while through that Committee. 16 MS. LINDA ROTHSTEIN: What about your 17 lectures at various police -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. LINDA ROTHSTEIN: -- colleges over 20 the years? That gave you access to and fairly frequent 21 contact with senior police officers, did it not? 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: You, no doubt, 24 through the years got to know some better than others? 25 DR. CHARLES SMITH: Yes.
981 MS. LINDA ROTHSTEIN: Were there some 2 that you would have felt you were on fairly close 3 professional terms with. 4 DR. CHARLES SMITH: There were -- there 5 were a couple, yes. 6 MS. LINDA ROTHSTEIN: Who were they? 7 DR. CHARLES SMITH: I think the two (2) 8 that I knew best would have been two (2) former members 9 of the homicide squad in Toronto. I can't remember their 10 ranks, so -- so you'll forgive me for that. 11 Chris Wilson (phonetic) and David Perry 12 (phonetic) would have been the two (2) that I probably 13 knew best because of activity that was not simply case 14 specific. 15 MS. LINDA ROTHSTEIN: And was it through 16 them or others that you came to be a fairly frequent 17 lecturer at police colleges? 18 DR. CHARLES SMITH: Oh, I -- I don't the 19 -- the reason for that, whether it was through the police 20 or whether it was the Chief Coroner's Office indicating 21 to the police that this -- because there was a growing 22 interest in SIDS and death investigations in children. 23 So, at times, I lectured with the Chief 24 Coroner's Office, and certainly, at times, I lectured at 25 their request but not with them, so whether it was the
991 police who specifically approached me or others, I -- I 2 couldn't tell you for sure. 3 MS. LINDA ROTHSTEIN: You also lectured 4 on the subject of pediatric forensic pathology at Crown 5 attorney -- at Crown attorney conferences from time to 6 time? 7 DR. CHARLES SMITH: I did on -- on one 8 (1) or more occasions. I think once or more with Dr. 9 Cairns as part of -- as part of the approach that -- that 10 the Office of the Chief Coroner was taking. 11 MS. LINDA ROTHSTEIN: Fair to say, sir, 12 that in all, you were frequently in professional contact 13 and communicated with experienced police officers? 14 DR. CHARLES SMITH: And -- and 15 inexperienced police -- I had -- I had the benefit of -- 16 of both, yes. 17 MS. LINDA ROTHSTEIN: Coroners. 18 DR. CHARLES SMITH: Yes. 19 MS. LINDA ROTHSTEIN: Crowns. 20 DR. CHARLES SMITH: Crowns, yes. Crowns 21 less than other members of the death investigation or 22 judicial process. 23 MS. LINDA ROTHSTEIN: You came to know 24 well that your post-mortem report had to be disclosed? 25 DR. CHARLES SMITH: Yes.
1001 MS. LINDA ROTHSTEIN: And indeed, that 2 there were some unfortunate occasions when there was a 3 great effort expended to obtain it? 4 DR. CHARLES SMITH: Sadly, yes. 5 MS. LINDA ROTHSTEIN: And in general, 6 came to understand, I'm suggesting, Dr. Smith, the 7 importance of the Crown and police's disclosure 8 obligation? 9 DR. CHARLES SMITH: Yes, I came to a 10 growing appreciation of that. 11 MS. LINDA ROTHSTEIN: Yeah. And so I'm 12 suggesting to you, sir, that by 1997, you did understand 13 well that whatever your normal practice was, which I 14 accept -- 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: -- if there was 17 going to be a material change in your opinion, it was 18 reasonable and proper and appropriate that you document 19 that? 20 DR. CHARLES SMITH: That's correct. And 21 I erred and I recognize that. 22 MS. LINDA ROTHSTEIN: All right. 23 In this case, we know, if you go back to 24 the overview report at paragraph 154 and 155, that Ms. 25 Walsh certainly was concerned that you provide her with a
1011 brief note so she could meet her disclosure obligations. 2 You've acknowledged that, Dr. Smith? 3 DR. CHARLES SMITH: Yes, she did ask me 4 for that. Yes. 5 MS. LINDA ROTHSTEIN: And so this one (1) 6 unfortunate example where you did not, in fact, respond 7 to that prior to the preliminary inquiry, am I right? 8 DR. CHARLES SMITH: Yes, that's right. 9 MS. LINDA ROTHSTEIN: And are we agreed, 10 sir, that one (1) of the problems that creates for the 11 system is it doesn't give the defence an opportunity to 12 obtain expert assistance to attempt to determine the 13 veracity of that new information and opinion? 14 DR. CHARLES SMITH: I acknowledge that 15 potential, yes. 16 MS. LINDA ROTHSTEIN: Did it seem unfair 17 and one-sided? Did it seem that -- you've mentioned your 18 concern that there be mutual disclosure; that you were 19 interested in that as a law reform activity. I'm trying 20 to see whether those two (2) things have a connection, 21 Dr. Smith. 22 And whether by 1997, part of the reason 23 for your dilatoriness can be explained by your feeling 24 that it was way too one-sided -- this disclosure 25 obligation -- and it cast unfair burdens on one (1) side
1021 but not the other. 2 Am I right in suggesting that was an issue 3 at all? 4 5 (BRIEF PAUSE) 6 7 DR. CHARLES SMITH: I don't have any 8 recollection of that thought process whatsoever. 9 MS. LINDA ROTHSTEIN: You think that 10 would be an unfair characterization, sir? 11 12 (BRIEF PAUSE) 13 14 DR. CHARLES SMITH: I think -- I think it 15 would be, yes. 16 MS. LINDA ROTHSTEIN: In any event, you 17 do agree that the circumstances in which you discovered 18 this alleged fracture -- I'm going to use that word -- 19 DR. CHARLES SMITH: Yeah. 20 MS. LINDA ROTHSTEIN: -- because we know 21 it's not -- 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: -- was very 24 unusual? 25 DR. CHARLES SMITH: Yes.
1031 MS. LINDA ROTHSTEIN: You didn't see the 2 fracture at autopsy. It was not evident to your naked 3 eye. You've told us that. 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: It was not apparent 6 on the radiographs? 7 DR. CHARLES SMITH: That's correct. 8 MS. LINDA ROTHSTEIN: You didn't sample 9 the relevant bone that you looked at under the microscope 10 for the purposes of determining whether or not there was, 11 in fact, a fracture. That's not why you took the sample, 12 you told us that. 13 DR. CHARLES SMITH: Yes, that's -- that's 14 my recollection. Yes. 15 MS. LINDA ROTHSTEIN: You took it for the 16 purpose of looking at the possibility of the -- or 17 learning more about the dural hemorrhage -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. LINDA ROTHSTEIN: -- which was 20 visible to your naked eye? 21 DR. CHARLES SMITH: Yes. Yes. 22 MS. LINDA ROTHSTEIN: It was, as you 23 described it, I believe, Dr. Smith, in your evidence at 24 the preliminary inquiry, a chance finding? 25 DR. CHARLES SMITH: Yes.
1041 MS. LINDA ROTHSTEIN: A rare -- extremely 2 rare -- chance finding, do you agree? 3 DR. CHARLES SMITH: Well, chance findings 4 do occur but -- but because representative sampling of 5 the skull is a -- is an unusual sample -- not rare but 6 unusual. And the fact that there would be -- what 7 appeared to be a fracture in a sample that's not taken 8 routinely would -- would indicate it was unusual. I -- I 9 don't know what the word "rare" necessarily means, but -- 10 but it was a combination of -- of an unusual finding in a 11 practice which is not carried out in -- in the majority 12 of autopsies. 13 It's only done in a -- in a small -- 14 smaller minority of autopsies. 15 MS. LINDA ROTHSTEIN: Had it ever 16 happened to you before? 17 DR. CHARLES SMITH: No, no. 18 MS. LINDA ROTHSTEIN: And if I look at 19 your written evidence, sir, at page 65, I read that -- 20 DR. CHARLES SMITH: Yes. 21 MS. LINDA ROTHSTEIN: -- you knew, or, at 22 least, you appreciated that what you saw under the 23 microscope -- and you thought was a fracture -- could, in 24 fact, be mistaken for a developing cranial suture. 25 DR. CHARLES SMITH: Or an abnormal --
1051 yeah, an abnormal bone structure in the skull, yes. 2 MS. LINDA ROTHSTEIN: Because I don't 3 have a quote of what you said -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: -- on Monday, but I 6 thought -- 7 DR. CHARLES SMITH: Mm-hm. 8 MS. LINDA ROTHSTEIN: -- you told us 9 something a bit different than that? 10 DR. CHARLES SMITH: Well it was -- yeah, 11 there are things like wormian bones. So there are 12 structures in the -- in the area. Besides sutures there 13 are -- are variations in development, yes. So it's -- 14 it's that category. 15 MS. LINDA ROTHSTEIN: In general, you 16 were aware of the possibility that what you saw under the 17 microscope and perceived to be a fracture, could mimic 18 some other natural feature of this young skull? 19 DR. CHARLES SMITH: I recognized that 20 possibility, yes. 21 MS. LINDA ROTHSTEIN: So why didn't you 22 ask someone else to look at it, Dr. Smith, to confirm 23 your first impression? 24 DR. CHARLES SMITH: Well, as a matter of 25 fact, I -- I did in the informal consultations that would
1061 be like anything else; taking a slide down the hallway to 2 someone else, yes. 3 MS. LINDA ROTHSTEIN: You have a precise 4 recollection of that? 5 DR. CHARLES SMITH: I can -- I can recall 6 head scratching. The only person that I know for certain 7 that I discussed it with -- and that's only for certain, 8 because I don't have anything else -- would have been Dr. 9 Perrin. 10 And that would have -- but I can't 11 remember anything more than that. 12 MS. LINDA ROTHSTEIN: Dr. Perrin's a 13 pathology assistant? 14 DR. CHARLES SMITH: Assistant, that's 15 correct, yeah. Mm-hm. 16 MS. LINDA ROTHSTEIN: Why would you -- 17 DR. CHARLES SMITH: Why -- 18 MS. LINDA ROTHSTEIN: -- be showing him a 19 slide? 20 DR. CHARLES SMITH: It -- he reviewed 21 microscopy on cases and -- and not infrequently. Though 22 he didn't do it with me, he did it with other 23 pathologists, but, from time to time, I would show him 24 interesting or puzzling cases. 25 So that wasn't as much of a -- of a
1071 diagnostic consult as a, Here's an interesting problem 2 kind of a thing. 3 MS. LINDA ROTHSTEIN: Okay. 4 DR. CHARLES SMITH: But I -- but I do -- 5 I have some recollection, but I can't remember with whom 6 I discussed the problem or considered the problem, but I 7 -- please here, I -- I want to underscore something. 8 It's like everything else. At the end of 9 the day, it was my report and my mistake. 10 MS. LINDA ROTHSTEIN: Fair enough. 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: And I accept that 13 you've -- 14 DR. CHARLES SMITH: Mm-hm. 15 MS. LINDA ROTHSTEIN: -- been very candid 16 about that, but the struggle we're having is -- 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: -- when did you 19 think it was appropriate to go for help, and in this 20 case, I'm going to suggest to you that Dr. Perrin's help 21 wasn't really what was needed? 22 DR. CHARLES SMITH: Oh no, I'm -- I'm not 23 suggesting that he was my consultant here. I -- I -- 24 MS. LINDA ROTHSTEIN: Right. 25 DR. CHARLES SMITH: -- gave -- I -- I
1081 pro-offered that just because that was the only specific 2 recollection I had. It -- there remains uncertainty in 3 many aspects of pediatric pathology. 4 Not only, you know, differences in opinion 5 where I could show the same slide to two (2) people and 6 get two (2) different opinions, but there's also the 7 uncertainty at the end of the day of, Well, this is what 8 I think it is, but -- but it's unusual, and -- and there 9 -- and there aren't necessarily answers in the 10 literature. 11 And -- and that's not simply true for 12 this. There's, you know, vast numbers of situations or 13 diseases where that occurs, and so that becomes part of 14 the art of pathology; working through the issues, and 15 trying to come to a reasonable conclusion when there's 16 not a clear knowledge base. 17 MS. LINDA ROTHSTEIN: And I hear you on 18 all of that -- 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: -- Dr. Smith. And 21 I recognize that there's no case that wouldn't benefit 22 from a second pair of eyes, experienced eyes, and 23 hopefully, more experienced eyes. 24 But I'm suggesting to you that this case 25 absolutely called for, and these circumstances demanded,
1091 that you seek and obtained an opinion from someone more 2 expert than you, before you went to a preliminary and 3 testified that this was your opinion. 4 DR. CHARLES SMITH: And it was my 5 opinion, and -- and I thought it had been reasonably 6 reached. 7 MS. LINDA ROTHSTEIN: Is there any 8 possibility, Dr. Smith, that -- in fact, in this case 9 having so early concluded on the basis of the 10 circumstantial evidence that this was a case of homicide 11 -- that you'd lost some objectivity? 12 DR. CHARLES SMITH: Is your question with 13 regards to the skull fracture interpretation? 14 MS. LINDA ROTHSTEIN: And why you didn't 15 seek help -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- and 18 confirmation, and document it clearly, and all the other 19 steps that should have been necessary and demanded by 20 this discovery. 21 DR. CHARLES SMITH: That's not my 22 recollection. 23 MS. LINDA ROTHSTEIN: I -- it's not what 24 you did. 25 DR. CHARLES SMITH: Mm-hm.
1101 MS. LINDA ROTHSTEIN: I'm suggesting that 2 having not done that, it suggests some lack of 3 objectivity, perhaps. Do you accept that? 4 DR. CHARLES SMITH: With specific regard 5 to the skull fracture -- 6 MS. LINDA ROTHSTEIN: Yes. 7 DR. CHARLES SMITH: -- I -- I recognize 8 that -- that I was too narrow or -- or erred in my 9 diagnosis. 10 I -- I don't think that puzzling findings 11 at -- at an autopsy, or on a surgical, were ever 12 determined, or the -- the interpretation of them is ever 13 determined by -- by a preset notion, but rather, I -- 14 it's always, you know, a new piece of information which 15 demands consideration. 16 So I can't say that -- that I -- I would 17 have been significantly biassed in -- in this. 18 MS. LINDA ROTHSTEIN: Finally, Sergeant 19 MacLellan testified about what happened on February the 20 10th, '97, at that meeting that we've just reviewed in 21 terms of the skull fracture when Ms. Walsh asked you 22 about photographs that had been taken during the post- 23 mortem. 24 And, Registrar, would you please turn to 25 page 75 of Sergeant MacLellan's evidence. Thank you.
1111 And, so you can see at the top of the 2 page: 3 "Leaving aside the discussion about the 4 skull fracture, did you have any 5 discussion with him about the 6 photographs that had been taken at the 7 autopsy? 8 Yes. 9 Tell the Commissioner about that 10 discussion, if you would. 11 Again at the same meeting, I think it 12 was February the 10th in Toronto, 13 myself, Sheila Walsh, and Dr. Smith at 14 Sick Kids Hospital; and at one (1) 15 point, Sheila Walsh asked him about 16 photographs taken by the autopsy team 17 as they needed to be disclosed to 18 defence. And he replied, What 19 photographs? And she pointed out to 20 him, in my notes, that there were 21 photographs taken. And which time he 22 turned to me and, you know, he was 23 quite upset. He pointed his finger at 24 me. I told you not to take notes. And 25 I advised him that, you know, he was
1121 not going to tell me how to do my job." 2 And then he describes how he felt about 3 that. Do you remember that, Dr. Smith? 4 DR. CHARLES SMITH: No, I have no 5 recollection of that. No, I don't. 6 MS. LINDA ROTHSTEIN: Can you think of 7 any reason why you would have been cross with Sergeant 8 MacLellan for having taken notes after all? 9 DR. CHARLES SMITH: No. No. In fact, to 10 document that photographs were taken is something that 11 the police often did, and -- and from time to time, came 12 back because they needed to know whether our photographs 13 were better than theirs. 14 So I can't -- I can't imagine why I'd be - 15 - be cross with him because that was a request that 16 occurred not infrequently. I shouldn't say not 17 infrequently, but there are times when I testified in 18 Court that every police photograph was, in fact, a copy 19 of a photograph that had been taken by the -- the autopsy 20 staff. 21 So I'm -- I'm very sorry for that because 22 that does not truly reflect the fact that I acknowledged 23 that we had photographic documentation that they might 24 not have. 25 I'm -- I'm very upset by reading that.
1131 Please understand that, and I'm very apologetic for -- 2 for that exchange. That's not -- if it's correct and if 3 I was upset as opposed to reacting in a different way; 4 that was wrong of me and I acknowledge that. And that 5 was not helpful and I acknowledge that. 6 And that's not -- not my practice of -- of 7 sharing appropriate photographs of -- when the police 8 needed to fill in what they had. 9 No, I -- please understand, I'm very 10 embarrassed by this. 11 MS. LINDA ROTHSTEIN: Dr. Smith, I want 12 to go back to a question I asked you before the break 13 that I think was quite unfair to you and see if I can 14 correct the record and give you a full opportunity to 15 respond. 16 And it was the question of the timing and 17 the dating of your report. And you know that this -- 18 okay. So, Mr. Centa has a suggestion for me, which is 19 that we still haven't had an opportunity to share some of 20 the documents with your counsel and so I'm -- 21 DR. CHARLES SMITH: Oh. 22 MS. LINDA ROTHSTEIN: -- going to do that 23 after lunch -- 24 DR. CHARLES SMITH: All right. 25 MS. LINDA ROTHSTEIN: -- but I'm going to
1141 be on the record as saying I haven't been fair yet, and I 2 promise to ensure that we are after the lunchbreak. 3 DR. CHARLES SMITH: Well -- well, thank 4 you. I accept that. 5 MS. LINDA ROTHSTEIN: All right. Thank 6 you, Mr. Centa. 7 So I did want to touch on the other aspect 8 of this Joshua case that raises some systemic issues for 9 us, if I may. 10 And to come back to this whole notion of 11 the extent to which, what you've described as the risk 12 factors -- what others have described as psycho-social 13 factors -- form part of your reasoning process, your 14 analysis of a case and so on, and the extent to which you 15 included them in your consideration or made any 16 deliberate attempts to exclude them. 17 Looking at some other examples. If you 18 look at Tab 26 of Volume II. 19 DR. CHARLES SMITH: Is this the Joshua 20 case now? 21 MS. LINDA ROTHSTEIN: No -- 22 DR. CHARLES SMITH: Oh, all right. 23 MS. LINDA ROTHSTEIN: -- it's not. It's 24 the issue that you've talked about. The comments that 25 you made in February of '96 to Constable Blakely about
1151 that, and it's to see if there's any other cases that 2 might suggest consideration of these issues. 3 So these notes, at 303644 -- 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: -- are the 6 transcribed version of your autopsy notes in Jenna's 7 case. And I'm -- 8 DR. CHARLES SMITH: Yes. 9 MS. LINDA ROTHSTEIN: -- not going to go 10 back through that case in detail, I assure you, Dr. -- 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: -- Smith. But I 13 note the -- that one (1), two (2), three (3), four (4), 14 five (5), six (6) lines down: 15 "Coffee, arrow, six (6), seven (7) 16 hours [question mark]? Hooker." 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: Can you tell us 19 what that refers to, please? 20 DR. CHARLES SMITH: As I look at the -- 21 as I look at my handwritten notes, it appears to me -- 22 and understand, this is the best of my understanding but 23 it -- but it could be wrong. 24 It appears to me that I received a phone 25 call that may have been from Dr. Thompson or it may have
1161 been from some -- someone else, but it would be -- it 2 would be typical that it be a coroner or a Regional 3 Coroner who would be phoning to give some information on 4 a case that I may or may not even know anything about. 5 And so typically, and -- and what I think 6 happened here, but I do -- but -- but understand, this is 7 what I think and I -- and I can't be sure. I think what 8 happened is this is just quick notes that I took as I was 9 being given a brief overview of a case that was being 10 sent in. 11 And so they would be just my -- my quick 12 recording of whatever information had been given to me by 13 a coroner or a Regional Coroner; if indeed, that's what 14 this is. 15 MS. LINDA ROTHSTEIN: Why record it? 16 DR. CHARLES SMITH: Because sometimes 17 that was much more information than I would ever get on a 18 warrant. It was not infrequent to -- to have a phone 19 call the night before, you know, from a coroner saying, 20 I'm sending in a case; you know, here's the story, and I 21 would just have to scribble notes next to a telephone 22 because when I got the warrant, it could be, you know, 23 history, as we've discussed. 24 And so without -- without any quick, you 25 know, record on a phone call of the information that was
1171 being given to me, I could end up with nothing and go to 2 -- to author a post-mortem report where, you know, in our 3 own database of the history, there's nothing. There 4 would be no reference. 5 MS. LINDA ROTHSTEIN: Okay. So did you 6 view it as having any potential relevance to your work? 7 DR. CHARLES SMITH: The -- this statement 8 "Coffee, six (6) or seven (7) hours; query; hooker"? No. 9 No. 10 The "Coffee, six (6) or seven (7) hours", 11 yes, because that indicates that if the further concerns 12 that there may be child abuse were valid, then this would 13 point to one (1) of the two (2) -- one (1) of the two (2) 14 issues that is frequently met in -- in pediatric 15 autopsies in which there may be a homicide investigation, 16 and that is: Can you establish exclusive opportunity? 17 And so having the information just as to, 18 you know, Here's -- here's a point in time that's 19 important, so that -- so that would be valuable 20 information. 21 The -- you know, the -- the query, 22 "Hooker" doesn't -- doesn't at all affect the likelihood 23 of child abuse in, you know, in this case, or neglect in 24 this case versus any other case; it can happen. 25 MS. LINDA ROTHSTEIN: So do I hear you to
1181 be suggesting, Dr. Smith, that you were jotting down 2 notes and not doing any filtering of what you were 3 receiving by way of information. You were just taking 4 note of whatever you were told? 5 DR. CHARLES SMITH: Yeah, just -- yeah; 6 on a brief conversation, writing -- writing as fast as -- 7 as it came in. And that might explain, you know, some of 8 the shortcuts that were -- you know, that I might have 9 used. Yeah. 10 MS. LINDA ROTHSTEIN: Let's look at Tab 11 28. 005908. 12 DR. CHARLES SMITH: Mm-hm. 13 MS. LINDA ROTHSTEIN: And this deals with 14 another case entirely, the Kenneth case. It's your final 15 autopsy report, so I do understand, Dr. Smith, that this 16 is not the same and not in the same format as your report 17 of post-mortem examination. 18 DR. CHARLES SMITH: Yes. 19 MS. LINDA ROTHSTEIN: And I do understand 20 that the short history -- 21 DR. CHARLES SMITH: Mm-hm. 22 MS. LINDA ROTHSTEIN: -- that's in this 23 paragraph did not form part of that report of post-mortem 24 examination in this case. 25 DR. CHARLES SMITH: Mm-hm.
1191 MS. LINDA ROTHSTEIN: So stopping there. 2 What was the point - help us understand - 3 of these final autopsy reports that were prepared for 4 internal use at the hospital? 5 What was your understanding of their 6 purpose, please? 7 DR. CHARLES SMITH: Oh, yes. There -- 8 there were several purposes. 9 First of all, if -- if we set aside the 10 issue of the coroner's -- the coroner's cases, the -- in 11 a hospital autopsy, there's sort of two (2) major 12 components to the -- the report that would be bound. It 13 would be a summary or what was often called the "front 14 sheet", which may be one (1) or more pages long. 15 And then behind that was all of the 16 individual organ observations and microscopic 17 description, and all of the things that were pathology 18 alone that were, you know, that formed the basis of the 19 conclusions. 20 The front sheet is actually, in a hospital 21 autopsy, what would be sent out to the health records 22 department and to the pediatrician or whoever. And the 23 front sheet would consist of all of this demographic 24 information. In fact, this would be a typical front sheet 25 and -- apart from the fact that it's a coroner's case --
1201 there would only be two (2) things that would -- one (1) 2 thing that would tell you -- that would point to the fact 3 this is different than a hospital one. 4 And -- and the front sheet on a hospital, 5 one (1) would be the anatomical diagnoses, a history, and 6 then a discussion as to how the findings -- the anatomic 7 findings -- are to be interpreted, and interpreted in 8 light of the history. So that would be like a notandic 9 discussion that I've put in other reports. 10 So -- so this was what was in the system. 11 This is how we stored and recalled information based on 12 this. 13 MS. LINDA ROTHSTEIN: So can we safely -- 14 DR. CHARLES SMITH: Okay. 15 MS. LINDA ROTHSTEIN: -- assume from that 16 description -- or do you want to continue? 17 DR. CHARLES SMITH: No. So what I wanted 18 to do is say when I joined the hospital historically, 19 this had been done for coroner's cases. The difference 20 was that on coroner's cases, instead of the hospital 21 autopsy protocol forming the next five (5) or ten (10) 22 pages in the bound volume, it would be the report of 23 post-mortem examination. 24 And the difference, of course, is a) 25 there's not to be the discussions that would occur in a
1211 hospital one (1); and the second thing is, these 2 documents were not sent out. 3 These were -- these were for storage 4 purposes internally so that we would be able to store 5 them, retrieve them, and -- and have the -- the history, 6 or the background circumstances for that -- for the 7 purpose of -- of understanding the case when you ever 8 went back to look at it again. 9 So that was the -- the historic role of 10 this front sheet. And that had been done, oh, certainly, 11 for years before I began at -- at the hospital. 12 MS. LINDA ROTHSTEIN: But can I derive 13 from all of that the conclusion that you were -- on these 14 forms, these final autopsy reports -- 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: -- trying to record 17 relevant information? 18 DR. CHARLES SMITH: The -- yeah. It was 19 -- it was typical if it was a hospital death, and the 20 short history would essentially be just all of the 21 medical information and the chart. 22 In a case -- in a coroner's case, then 23 obviously there's very little medical information, or 24 there's likely to be much less. And, so then it ends up 25 being more of a recollection of events and circumstances
1221 surrounding death. 2 So it would be -- it would be a broader 3 perspective. And -- and the source of information, of 4 course, is different because the -- the information -- 5 the history is not a history from a chart. It's a 6 history that's provided by the coroner or the police. 7 MS. LINDA ROTHSTEIN: Mm-hm. 8 DR. CHARLES SMITH: And, so it's -- it's 9 a different viewpoint of history -- 10 MS. LINDA ROTHSTEIN: Right. 11 DR. CHARLES SMITH: -- than would be used 12 in a -- in a medical cause of death. 13 MS. LINDA ROTHSTEIN: And, so for that 14 reason, you've done a history -- 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: -- that goes beyond 17 the medical. Fair enough. 18 DR. CHARLES SMITH: Mm-hm. 19 MS. LINDA ROTHSTEIN: You've recorded 20 that this was a 2-year-old boy in the care of his mother 21 on -- 22 DR. CHARLES SMITH: Mm-hm. 23 MS. LINDA ROTHSTEIN: -- the afternoon of 24 Saturday, October the 9th, when he became entangled in a 25 sheet while having an afternoon nap.
1231 There's no doubt in this case, am I not 2 correct, Dr. Smith, that the only potential person 3 involved in the death is, indeed, the mother of this 4 young child? 5 DR. CHARLES SMITH: At the time of the 6 terminal event, yes. 7 MS. LINDA ROTHSTEIN: There's no problem 8 here establishing the exclusive opportunity of the 9 mother. No reason to consider any other suspects from a 10 history perspective in this case. Fair? 11 DR. CHARLES SMITH: Mm-hm. I agree. 12 MS. LINDA ROTHSTEIN: And yet if one goes 13 to the last paragraph on this page, one reads: 14 "Social history indicates that the 15 mother's husband [name given] was not 16 in the room at the time of the instant 17 -- incident. This person who married 18 Kenneth's mother about three (3) months 19 ago is not Kenneth's father. He was 20 not present at the time because he was 21 at Scarborough Hospital attending to 22 his girlfriend who was giving birth to 23 his baby." 24 Why include this information, Dr. Smith? 25 DR. CHARLES SMITH: It's -- it's
1241 irrelevant to the -- to the cause of death, but it is 2 social history. Past medical history, and social history 3 are -- are parts of the history that -- that I would 4 include, if -- if it was given to me. 5 I recorded what I -- what I was given. 6 Whether it's correct or incorrect, I certainly don't 7 know. I agree that it's not relevant in this case, and I 8 can understand why -- why it may appear to be -- to be 9 unhelpful. 10 Frankly, it -- it didn't -- it didn't 11 impact the cause of death, or the decision-making at all 12 on it, but past medical history and social history are 13 the sort of things that -- yeah. 14 MS. LINDA ROTHSTEIN: Can you turn to Tab 15 9, Dr. Smith, of this same volume -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- 303613. And 18 this is an excerpt from a publication described as the 19 British Columbia Report Magazine, Inc., for July 12, 20 1999. 21 Are you familiar with that publication? 22 DR. CHARLES SMITH: No, I'm not. No. 23 MS. LINDA ROTHSTEIN: I was hoping you 24 could help us. 25 DR. CHARLES SMITH: No. In -- in the
1251 time I've lived in that province, I've certainly never 2 seen it on a news stand, if that's how it's distributed. 3 No, I can't help you at all. 4 MS. LINDA ROTHSTEIN: All right. Well, 5 in any event, it does appear to have some quotations from 6 you, so take a minute to refresh yourself as to what this 7 news report is about. 8 It's about an Edmonton father and an 9 Edmonton case with a three (3) week old son who was 10 violently shaken. 11 So it's a shaking case, and it would 12 appear that you are one (1) of the persons that is 13 contacted to speak about SBS, shaking cases, so take your 14 time, please, and refresh your memory about this -- 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: -- as you need to, 17 but you're mentioned on the second page of that document 18 -- 19 DR. CHARLES SMITH: Okay. 20 21 (BRIEF PAUSE) 22 23 MS. LINDA ROTHSTEIN: Starting in the 24 second paragraph. 25
1261 (BRIEF PAUSE) 2 3 DR. CHARLES SMITH: Yes, I've read it, 4 yes. 5 MS. LINDA ROTHSTEIN: Okay. Do you 6 remember being interviewed for this article? 7 DR. CHARLES SMITH: No, no. No, not at 8 all. 9 MS. LINDA ROTHSTEIN: Okay. 10 DR. CHARLES SMITH: No, I'm sorry, it's -- 11 MS. LINDA ROTHSTEIN: You're quoted as 12 saying that -- they have your title, Director of the 13 Ontario Pediatric Forensic Pathology Unit, attempting -- 14 DR. CHARLES SMITH: Mm-hm. 15 MS. LINDA ROTHSTEIN: -- to pinpoint ways 16 of identifying the crime. You did speak out from time- 17 to-time on SBS, did you not? 18 DR. CHARLES SMITH: Yes, I did, yeah. 19 MS. LINDA ROTHSTEIN: You were contacted 20 from the press -- by the press from time-to-time to give 21 information to understand that issue? 22 DR. CHARLES SMITH: Yeah. Yes, and I 23 believe the record shows that when I -- you know, when I 24 felt I could help, I went above and beyond in terms of 25 trying to assist them and provide them with time, yes,
1271 I -- 2 MS. LINDA ROTHSTEIN: Right. So you're 3 quoted as saying -- 4 DR. CHARLES SMITH: Yeah. 5 MS. LINDA ROTHSTEIN: -- firstly, in the 6 second paragraph: 7 "Defence lawyers love to make mincemeat 8 out of witnesses, and some experts can 9 become paid mouths, so the challenge to 10 prove there is such a thing -- the 11 challenge is to prove there is such a 12 thing as SBS." 13 Did you say that, Dr. Smith? 14 DR. CHARLES SMITH: Well, I -- I can't 15 remember any -- any of this conversation, but certainly 16 in 1999, I would agree that it was a challenge to prove 17 the entity of Shaken Baby Syndrome as there still was 18 controversy, yes, mm-hm. 19 MS. LINDA ROTHSTEIN: And, Dr. Smith, 20 dare I remind you that you had used the expression "paid 21 mouth" before. There's actually a transcript in the 22 Dustin matter that makes reference -- 23 DR. CHARLES SMITH: Mm-hm. 24 MS. LINDA ROTHSTEIN: -- to that 25 terminology, do you --
1281 DR. CHARLES SMITH: Yeah. 2 MS. LINDA ROTHSTEIN: -- remember looking 3 at that yesterday? 4 DR. CHARLES SMITH: I -- 5 MS. LINDA ROTHSTEIN: I didn't take you 6 to it, but it was there. 7 DR. CHARLES SMITH: Yes, and I'm -- the - 8 - this was not charitable of me at all. 9 MS. LINDA ROTHSTEIN: And then you talk 10 about the telltale sign of retinal hemorrhage -- 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: -- that may occur 13 in 80 percent of shaken babies and that you had found 14 damage to the high cervical spinal cord and so on, but 15 what I wanted to -- to move on to, if I could, was -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- the next 18 paragraph: 19 "When it comes to murder, the most 20 dangerous year of life is the first one 21 (1), Dr. Smith points out, with shaking 22 implicated in 50 percent of those 23 deaths." 24 Did that represent your working knowledge 25 at the time, Dr. Smith?
1291 DR. CHARLES SMITH: That -- that was my 2 understanding based on -- well, in terms of -- there's 3 two (2) components to that, "what is the most dangerous 4 year of life", if I can use this expression. 5 That's based on -- on research that -- 6 that is not -- not mine, but when it looks at homicides 7 in -- in different age groups, the homicide rate between 8 -- or -- or the likely of death from homicide in a given 9 unit of population, a hundred thousand (100,000), or a 10 million, or whatever the unit is, in the first year of 11 life, you know, versus one (1) to two (2) or two (2) to 12 three (3) and that sort of thing. 13 So on a statistical basis, as I understood 14 it, in Canada, taking all of the people at any given age, 15 the likelihood of dying as a result of a homicidal act in 16 Canada was greater between zero and one (1) year of age 17 than it would have been between forty-two (42) and forty- 18 three (43) years of age, or -- or that sort of thing. 19 So that's -- that I -- that was my 20 understanding of justice or statistics literature for 21 Canada, so -- so I -- I think I've expressed that -- that 22 correctly. 23 MS. LINDA ROTHSTEIN: And then the writer 24 continues -- 25 DR. CHARLES SMITH: Mm-hm.
1301 MS. LINDA ROTHSTEIN: -- he is concerned 2 about the future and then attributes these words to you, 3 Dr. Smith -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: 6 "We need to make it harder to walk away 7 from marital commitment and stop the 8 degradation of the family, he declares. 9 In all my eighteen (18) years of 10 working in the field, I don't know of a 11 single case of death resulting from 12 Shaken Baby Syndrome within a normal 13 traditional family." 14 DR. CHARLES SMITH: Well, I think that's 15 wrong. I mean, this is pop sociology, which I -- of 16 which I really have -- I -- I shouldn't be commenting on, 17 but I -- this statement of SBS in a normal traditional 18 family is -- is -- is wrong. 19 We even have -- we have, at least, one (1) 20 case here or a potential SBS case here. So -- 21 MS. LINDA ROTHSTEIN: Might you have said 22 it, Dr. Smith? 23 DR. CHARLES SMITH: I -- I don't 24 remember, so I can't say yes -- yes or no, but I do 25 recognize certainly as I read it, that it's not correct.
1311 MS. LINDA ROTHSTEIN: 2 "Instead he has found the classic 3 perpetrator to be a single mother's 4 boyfriend, not the biological father, 5 who grows up in a broken family where 6 violence is the means of solving 7 problems." 8 Did you say that? 9 DR. CHARLES SMITH: Well, I could have. 10 That would again be -- I mean, that's not -- that's not 11 my research. That would again be reflecting risk factors 12 or psyc -- psychosocial -- 13 MS. LINDA ROTHSTEIN: Mm-hm. 14 DR. CHARLES SMITH: -- psycho -- psycho- 15 social asso -- associations, yeah. 16 MS. LINDA ROTHSTEIN: So that -- 17 DR. CHARLES SMITH: I could have said 18 that. 19 MS. LINDA ROTHSTEIN: Okay. 20 DR. CHARLES SMITH: Yeah, but that's not 21 -- that's not my research, but that's -- 22 MS. LINDA ROTHSTEIN: I understand that. 23 And then the quote: 24 "A boy can't live with a series of 25 jerks for a role model. The forensic
1321 pediatrician contends they don't teach 2 a kid what a man needs to do in terms 3 of commitment and caring for a family. 4 If, as a society, we don't have male 5 figures who live out role models who 6 are obligated to take care for their 7 young, we are lost." 8 Would that have fairly represented your 9 views at the time of this publication, Dr. Smith? 10 DR. CHARLES SMITH: If we interpret it to 11 saying if there's a male role model in the home, it needs 12 to be a good role model versus a bad role model, I 13 certainly agree with that, yeah. 14 MS. LINDA ROTHSTEIN: And as of the date 15 of this article -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- might that have 18 represented some of your thinking about the underlying 19 causes of this awful syndrome? 20 DR. CHARLES SMITH: Well, the -- 21 certainly the -- the risk factors are stated. This off- 22 hand street psychology or sociology statement is 23 something that I don't remember. 24 In -- in a chance conversation, I could 25 have said, Yes, if there's going to be a male in the home
1331 it should be someone who cares for the family and is a 2 good role model. I think that probably all of us in the 3 room would agree with that statement. 4 But I can't -- you know, I can't remember 5 this conversation. I'm -- I don't -- I don't know the 6 publication. This is -- I'm a little embarrassed by 7 this, because this is not the type of -- the quality of 8 work which I have -- have come to appreciate from members 9 of the media in which I've invested sort of time and 10 energy to help them, because I certainly recognize the 11 importance of accurate reporting. 12 And also the importance -- their 13 extraordinary importance in terms of public education, 14 and -- and I think -- I think whatever this interview was 15 that I can't remember, as I look at it, failed in terms 16 of those two (2) things, accuracy of information; some of 17 this is inaccurate. 18 And I don't think this really serves as a 19 good role in public education, so it's -- it's failed in 20 both aspects of what I would attempt to communicate to 21 the media, and I'm embarrassed by it. 22 If -- if this conversation happened, and - 23 - I -- I have no recollection, then -- then -- then 24 whatever -- whatever it was that did not reflect what my 25 intention has been with -- with trying to help the media.
1341 MS. LINDA ROTHSTEIN: But I do hear you 2 to say, in all of that, that some of these risk factors 3 were things that you were thinking about and 4 communicating with others about during these years? 5 DR. CHARLES SMITH: Oh yeah, certainly 6 these risk factors were -- you know, were known. There 7 was a growing knowledge on some of them, I think. But 8 it's -- the risk factors were not -- they were not part 9 of the research that I was engaged in. 10 They're -- they're not pure forensic 11 pathology, but if you read a forensic pathology 12 publication, it would be typical for a publication on any 13 type of -- of death or groups of death, similar things to 14 put in relevant risk factors that could be psycho-social 15 risk factors. 16 MS. LINDA ROTHSTEIN: And can you 17 honestly say, Dr. Smith, that consideration of those 18 kinds of risk factors or the social history of the 19 suspected person did not -- did not infuse your analysis 20 of any of these cases? 21 DR. CHARLES SMITH: I can't think it did, 22 no. My approach to each case was to come up with the 23 best diagnosis. And I've certainly come up with 24 extraordinary diagnoses that point to natural disease or 25 accidents in cases where, on the surface, I or another
1351 pathologist believed it by the social risk factors to be 2 neglect or abuse, and -- and so I'm proud of the fact 3 that -- that on occasions, I've -- I've been able to -- 4 to stand up and say, The social circumstances, you know, 5 have been misleading, you know, if they've been used. 6 I -- I shouldn't say that, but -- but to 7 say, no, the so -- you know, this is what it is, and I'll 8 simply give you one (1) example, because it's in my 9 curriculum vitae, to help you understand it. 10 A child who came from very difficult 11 social circumstances and the pathologist doing the 12 autopsy and the coroner thought that the child had 13 suffered cigarette burns and I was asked to consult in 14 it. And I saw that it was a very unusual injury that I 15 had seen overseas and, in fact, was able to show that it 16 had nothing to do with cigarette burns. 17 It was -- because it was an attack by a 18 cockroach after a child had died, it -- it expressed what 19 could be the outworking of a very sad social situation. 20 But in fact, it was -- it was one (1) 21 example, and -- and I have had many such occasions. In 22 fact, to come along and to -- to be able to say, you 23 know, No, no, this is -- this is natural disease; this is 24 an accident, and that's what occurred in -- in all 25 environments, difficult circumstances and -- and not.
1361 My purpose is to provide the best answer, 2 and I -- and I honestly don't believe that the best 3 answer was one (1) which was dependent upon any 4 information given to me about social circumstances. 5 MS. LINDA ROTHSTEIN: In any way? 6 DR. CHARLES SMITH: I -- I can say that - 7 - that my -- that's my honest belief, yes. 8 MS. LINDA ROTHSTEIN: Dr. Smith, a 9 different issue that arises from looking at this; not to 10 belabour the language that your use of the "paid mouth"-- 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: -- but you know 13 there are examples in our -- 14 DR. CHARLES SMITH: Yes. 15 MS. LINDA ROTHSTEIN: -- material -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- where you were 18 uncharitable -- 19 DR. CHARLES SMITH: Yeah. 20 MS. LINDA ROTHSTEIN: -- to the defence 21 expert. 22 DR. CHARLES SMITH: Yes, all -- 23 MS. LINDA ROTHSTEIN: You know that. 24 DR. CHARLES SMITH: All too often, yes. 25 MS. LINDA ROTHSTEIN: This article also
1371 raises the -- the issue about your view of defence 2 lawyers and their role in this process. You're described 3 here -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: -- as saying that 6 "they love to make mincemeat -- 7 DR. CHARLES SMITH: Mm-hm. 8 MS. LINDA ROTHSTEIN: -- of witnesses". 9 Later on in the piece, you're described as saying that 10 you have to -- in order to make these cases and take them 11 to conviction, "you have to endure" -- you'll see this at 12 the bottom -- 13 DR. CHARLES SMITH: Mm-hm. 14 MS. LINDA ROTHSTEIN: -- of the second 15 paragraph, Dr. Smith, 16 "the willingness to take the stand for 17 five (5) days at a stretch and be 18 called a liar." 19 DR. CHARLES SMITH: Mm-hm, mm-hm, yes. 20 MS. LINDA ROTHSTEIN: By 1999, would that 21 have reflected your view on a bad day of the Criminal 22 Justice System? 23 DR. CHARLES SMITH: That would have 24 reflected my view on a bad day or -- of one (1) or two 25 (2) people who I had -- had met over the years. That is
1381 not a general review of the, if I've got the express -- 2 expression right, the criminal defence bar, is that the 3 correct expression? 4 MS. LINDA ROTHSTEIN: Yes. 5 DR. CHARLES SMITH: I -- I have had one 6 (1) or two (2) occasions where I have come away licking 7 my wounds and being upset that -- at what happened, and - 8 - you know, and have made these uncharitable remarks 9 about -- based on -- based on exposure to -- to one (1) 10 or two (2) people, and I -- you know, since then I've 11 come to realize that not only, you know, was that my 12 experience with them but that might have been experience 13 of other medical experts as well. But that's -- that is 14 certainly pointing out the -- the extreme rather than the 15 norm. 16 MS. LINDA ROTHSTEIN: But was it that 17 sort of feeling on a bad day that led you to describe 18 your feelings late on Monday to me -- 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: -- as feeling like 21 a "pawn in a chess game"? 22 DR. CHARLES SMITH: Was it the 23 feeling...? Help me with your question here, please. 24 MS. LINDA ROTHSTEIN: That -- that you 25 were being --
1391 DR. CHARLES SMITH: Mm-hm. 2 MS. LINDA ROTHSTEIN: -- mistreated by 3 defence counsel from time-to-time and that -- 4 DR. CHARLES SMITH: Well, I -- if I was 5 to say that I don't think I -- I could limit it to 6 defence counsel. I mean, there are frustrations of being 7 a witness in that environment, and there's many reasons 8 for it. 9 But the frustrations that I experienced 10 could not -- could not all be laid at the feet of defence 11 counsel. Some -- some, I think, relate to Crown 12 attorneys; some relate to difficulties that the Court 13 systems have that -- that are beyond the control of 14 Crowns and defence and issues and problems and a variety 15 of things that speak to resources and circumstances and 16 legal procedures. 17 So -- so yes, there are times I was 18 frustrated in -- in cross-examinations or even when -- 19 when a defence lawyer had asked me -- you now, subpoenaed 20 me on a case, I could be frustrated with that. And there 21 are times I was frustrated with Crown attorneys, and 22 there are times I understood the system overall was 23 frustrating. 24 MS. LINDA ROTHSTEIN: You also told me on 25 Monday, Dr. Smith, that looking back, you realized that
1401 you had, at least some of the time, perceived your role 2 as making the Crown's case look good. 3 Do you remember telling me that -- 4 DR. CHARLES SMITH: I -- 5 MS. LINDA ROTHSTEIN: -- on Monday? 6 DR. CHARLES SMITH: Yes. Certainly in 7 the very beginning that was -- that was what I -- what I 8 understood, or misunderstood, to be an expectation of me. 9 MS. LINDA ROTHSTEIN: And did that lead 10 you to believe that your job was, in fact, to deliver a 11 conviction for the Crown? 12 DR. CHARLES SMITH: If you'd asked me 13 that question in -- in the 1980s on the first several 14 times that I -- that I went to Court, I would have -- I 15 would have agreed with that. I think that my -- I think 16 that I was much too invested in the outcome of the 17 process at that time than I should have been. 18 MS. LINDA ROTHSTEIN: But looking at this 19 article again, and it's the last time -- 20 DR. CHARLES SMITH: Mm-hm. 21 MS. LINDA ROTHSTEIN: -- I'll ask you to 22 do that, the last sentence in the second paragraph. 23 Second-last sentence reads: 24 "He has achieved an 80 percent 25 conviction rate among those charged
1411 with SBS." 2 And goes on to explain what you, it would 3 appear, describe to the interviewer and writer about what 4 that took, in terms of the effort. 5 DR. CHARLES SMITH: Well, I don't even 6 know that an 80 percent conviction rate in SBS is correct 7 information. So -- so to start with -- 8 MS. LINDA ROTHSTEIN: But were you 9 keeping some form of record or -- 10 DR. CHARLES SMITH: No. Oh, no, 11 absolutely not. No. 12 And -- and certainly, I didn't feel -- I 13 mean, I'm not the one (1) who gets convictions, and this 14 is -- this is an attribution to me that I believe is -- 15 is grossly erroneous. That -- that -- that is simply 16 wrong. I -- I don't accept that whatsoever. 17 MS. LINDA ROTHSTEIN: Okay. 18 Commissioner, this would be a good time 19 for lunch. I'm going to actually suggest that we come 20 back at the usual time to enable Ms. Langford, Mr. Centa 21 and I to have a -- perhaps a little longer discussion 22 than we normally would. I will still be on time and 23 indeed, there's some likelihood, Dr. Smith, that we can 24 finish a little bit early today. 25 DR. CHARLES SMITH: Thank you.
1421 COMMISSIONER STEPHEN GOUDGE: Okay. Why 2 don't we rise then till two o'clock and if you need five 3 (5) or ten (10) minutes more than that, let me know. 4 5 --- Upon recessing at 12:37 p.m. 6 --- Upon resuming at 2:02 p.m. 7 8 THE REGISTRAR: All rise. Please be 9 seated. 10 COMMISSIONER STEPHEN GOUDGE: Ms. 11 Rothstein...? 12 13 CONTINUED BY MS. LINDA ROTHSTEIN: 14 MS. LINDA ROTHSTEIN: Thank you very 15 much, Commissioner. 16 Dr. Smith, just following up on the 17 discussion that we were having just before the lunch 18 break, Dr. Smith, arising from some comments that were 19 attributed to you in a previous article, I want to now 20 take you to a new one. It's PFP303978 and it is an 21 article from The Edmonton Journal, May 16/'94, you can 22 see that at the top, entitled "Infant Death Cases Often 23 Frustrating: Uncertainties Raise Barrier." 24 Dr. Smith, have you had a chance to at 25 least scan that article?
1431 DR. CHARLES SMITH: I would underscore 2 the word "scan," yes. 3 MS. LINDA ROTHSTEIN: Do you want to take 4 another moment and make sure you have a sense of it, sir, 5 before I ask you the questions about the comments 6 attributed to you on page 3? 7 8 (BRIEF PAUSE) 9 10 MS. LINDA ROTHSTEIN: It's mainly 11 focussed -- 12 DR. CHARLES SMITH: Yeah. 13 MS. LINDA ROTHSTEIN: -- in the beginning 14 on the Alberta experience, you can see that, discussing 15 the difficulties of providing the medical evidence in 16 child abuse cases and the pitfalls that follow, because 17 medicine can't be as exact a science as the law would 18 sometimes demand. 19 There's some quotes from Dr. Graeme 20 Dowling who was the -- 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: -- Province's Chief 23 Medical Examiner. Did you come to know him at all, Dr. 24 Smith? 25 DR. CHARLES SMITH: Yes. I mean, I don't
1441 know Graeme well but I certainly know him, and I know of 2 this case because I -- I testified on behalf of the 3 defence in this case. 4 MS. LINDA ROTHSTEIN: All right. And 5 perhaps that's the reason then you were asked to provide 6 an opinion or a comment. And at the top of page 3, these 7 aren't in quotes, but it's stated: 8 "That in Ontario the batting average 9 for convictions in non-accidental 10 deaths of children is higher than in 11 Alberta, in the opinion of Dr. Charles 12 Smith. He is the head of Ontario's 13 Pediatric Forensic Pathology Unit at 14 Toronto's Hospital for Sick Children." 15 Might you have said something that would 16 have led this writer to write that sentence in that form? 17 DR. CHARLES SMITH: I -- I can't 18 remember. I can't remember this interview or this 19 exchange at all. 20 MS. LINDA ROTHSTEIN: It goes on to 21 record: 22 "In the past decade, Smith has 23 testified in twenty (20) to twenty-five 24 (25) cases of non-accidental head 25 injuries in children."
1451 Is that -- would that fairly reflect your 2 experience as of 1994, Dr. Smith? 3 DR. CHARLES SMITH: It seems a little 4 high. It could be. 5 MS. LINDA ROTHSTEIN: And stopping there 6 for a moment. 7 DR. CHARLES SMITH: Mm-hm. 8 MS. LINDA ROTHSTEIN: Twenty (20) to 9 twenty-five (25) cases of non-accidental head injuries; 10 would that include cases where you had done the post- 11 mortem examination and also cases that were child 12 protection proceedings? 13 DR. CHARLES SMITH: It could be. I -- I 14 don't -- I don't have specific recollection, yes. 15 MS. LINDA ROTHSTEIN: But just -- okay -- 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: -- so let's step 18 back from the article -- 19 DR. CHARLES SMITH: Yes. 20 MS. LINDA ROTHSTEIN: -- for the moment, 21 see if we can paint the picture this way: 22 In 1994 you were testifying not only as a 23 result of the death of a child in a potentially non- 24 accidental head injury case but also in child protection 25 proceedings that may be --
1461 DR. CHARLES SMITH: Yeah. 2 MS. LINDA ROTHSTEIN: -- related to a 3 death -- 4 DR. CHARLES SMITH: Yeah. 5 MS. LINDA ROTHSTEIN: -- or not. Is -- 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: -- that fair? 8 DR. CHARLES SMITH: Or -- or even perhaps 9 in something like a coroner's inquest, I had done that as 10 well, yes. 11 MS. LINDA ROTHSTEIN: Right. Were there 12 also occasions when indeed your evidence was elicited and 13 the child was still alive but was alleged to have 14 suffered a non-accidental head injury of some kind? 15 DR. CHARLES SMITH: I think there's -- 16 there would be perhaps a couple of occasions where that's 17 occurred. I -- I have some vague recollection of that, 18 yes. 19 MS. LINDA ROTHSTEIN: And how would you 20 have come to be involved in a case of a live child who 21 was reputed to have had a head injury, Dr. Smith? 22 23 (BRIEF PAUSE) 24 25 DR. CHARLES SMITH: In one (1) instance,
1471 I was asked -- that I can think of -- I was asked by the 2 police to provide an opinion, in addition to the opinion 3 from the SCAN Team, and basing it on not the clinical 4 factors, but rather basing it on -- if -- if I could, 5 sort of accepting the radiographic findings of subdural 6 hemorrhage, cerebral edema, and the ophthalmic findings, 7 and indicating that based on sort of the, you know, the 8 clinical evidence of, you know, of non-accidental head 9 injury, what -- what my opinion would be. 10 MS. LINDA ROTHSTEIN: And why did you 11 think that was an appropriate responsibility or role for 12 you to undertake? 13 DR. CHARLES SMITH: I knew the 14 pathologists doing this work did that from time to time, 15 yes. Yeah, I thought it was not a common request, but I 16 certainly knew that -- that others did that and so I 17 thought it was a reasonable request. 18 MS. LINDA ROTHSTEIN: This article 19 continues: "In the pa -- in the past decade, after 20 the -- Smith has testified --" 21 DR. CHARLES SMITH: Mm-hm. 22 MS. LINDA ROTHSTEIN: 23 "-- in twenty (20) to twenty-five (25) 24 cases, only two (2) have resulted in 25 acquittals, the rest have either been
1481 guilty pleas or guilty verdicts." 2 Might you have said something like that, 3 Dr. Smith, to this reporter? 4 DR. CHARLES SMITH: Well, I could have, 5 yes. I mean, this statement, of course, would presume 6 that the cases had in -- you know, that it was a case 7 where there were charges laid and -- and there are cases 8 where charges aren't laid. 9 MS. LINDA ROTHSTEIN: 10 "Smith credits this success to a larger 11 team of medical specialists and child 12 abuse experts in hospitals who work 13 together before a case ever gets to 14 Court." 15 Was that a fair reflection of your views 16 in 1994, Dr. Smith? 17 DR. CHARLES SMITH: That -- that was what 18 was encouraged, yes. Mm-hm. 19 MS. LINDA ROTHSTEIN: 20 "They meet to discuss their evidence 21 and make sure they'll present a uniform 22 consistent..." 23 Those two (2) words are in quotes. 24 DR. CHARLES SMITH: Yes. 25 MS. LINDA ROTHSTEIN:
1491 "...opinion in Court. We don't cook 2 our stories, but we identify problems, 3 says Dr. Smith." 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: Is that a fair 6 reflection of how you viewed these cases at the time, Dr. 7 Smith? 8 DR. CHARLES SMITH: Well, at the time the 9 -- the approach was, to quote Dr. Young, "lets get all 10 the ducks lined up in row," so it was -- so on a number 11 of instances, certainly not twenty (20) or twenty-five 12 (25), but on several instances there would be a special 13 meeting of the SCAN Team to discuss a case that would be 14 broader than the members of the SCAN Team. And we have - 15 - we have in the Amber case, I believe, an example of 16 that -- some -- a meeting that was held shortly after her 17 death of the various medical experts. 18 So that -- that type of meeting did occur 19 from time to time. 20 MS. LINDA ROTHSTEIN: Well, that's a 21 rather different meeting, that's an after the fact 22 meeting. I understand you here to be implying that there 23 were -- 24 DR. CHARLES SMITH: No, no -- 25 MS. LINDA ROTHSTEIN: -- meetings --
1501 DR. CHARLES SMITH: -- I'm sorry, no, 2 I've misstated it. In Amber -- in the Amber case she 3 died on a long weekend and we had -- and the SCAN Team 4 had a special meeting to discuss the case about ten (10) 5 days after her death. 6 MS. LINDA ROTHSTEIN: And you attended 7 that meeting. 8 DR. CHARLES SMITH: Yes, that's the kind 9 of meeting I'm referring to. 10 MS. LINDA ROTHSTEIN: And -- and you, at 11 the time, viewed that as an opportunity to try and 12 develop a uniform consistent approach to the hospital's 13 view of that case. 14 Is that fair? 15 DR. CHARLES SMITH: Well, I -- I think 16 that's a little unfair. I'm not the one who's developing 17 the uniform consistent case. Those kind of meetings 18 would frequently have -- I shouldn't say frequently. 19 They -- they occurred infrequently, but I can think of -- 20 of one (1) or more situations where a Crown attorney 21 would come along and that Crown attorney would -- would 22 canvas opinions to understand -- I -- what seemed to be 23 common points or -- or divergences in opinion. 24 MS. LINDA ROTHSTEIN: And finally, the 25 last quote's attributed to you, sir:
1511 "Medical decision making is not 2 necessarily as certain as legal 3 decision making; everyone involved in 4 child abuse accepts the frustration." 5 Does that sound like something you might 6 have said, Dr. Smith, in 1994? 7 DR. CHARLES SMITH: Yes. Yes, I believe 8 so. 9 MS. LINDA ROTHSTEIN: And then, Dr. 10 Smith, if you would turn to Volume III, Tab 16. 11 DR. CHARLES SMITH: Yes, I have that. 12 MS. LINDA ROTHSTEIN: And it's PFP303958. 13 This arrises out of the -- some of the questions and 14 answers that you and I were engaged in on Monday 15 afternoon. You'll recall that I had asked you some 16 questions, Dr. Smith, arising out of your self 17 evaluations in '96/'97 -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. LINDA ROTHSTEIN: -- for the Hospital 20 for Sick Children -- 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: -- and your role in 23 trying to move forward some kind of legislative reform, 24 and in particular, your evidence that you had contact 25 with a senator, Senator Ann Cools.
1521 DR. CHARLES SMITH: Yes. 2 MS. LINDA ROTHSTEIN: You remember that? 3 DR. CHARLES SMITH: I remember the 4 question, yes. 5 MS. LINDA ROTHSTEIN: So, this is in that 6 time period; it's Sunday, January 19th, 1997, which is 7 right in that same time period that you and I were 8 reviewing on Monday afternoon, and most of it, indeed all 9 of the information, appears to have been sourced from Ms. 10 Cools. And I'm not going to ask you whether you 11 necessarily adopt all of her views of the world -- 12 DR. CHARLES SMITH: Thank you. 13 MS. LINDA ROTHSTEIN: -- but just to -- 14 to set out clearly, she has said that: 15 "We have to demystify this nonsense 16 that women are pure. The idea is that 17 if we give them welfare, public 18 housing, counselling, the problems will 19 disappear; the problems haven't 20 disappeared. We've got to go deeper 21 [and so on]" 22 But midway through the page she -- there's 23 reference to a recent study of twenty-two (22) newborn 24 deaths -- 25 DR. CHARLES SMITH: Mm-hm.
1531 MS. LINDA ROTHSTEIN: -- conducted by Dr. 2 Charles Smith in Toronto. 3 "Twenty (20) of the mothers were 4 single, one (1) was married, and one 5 (1) was divorced. All but two (2) 6 mothers concealed the pregnancy. In 7 nine (9) cases the dead baby was found 8 in a bathroom, three (3) in the toilet, 9 fourteen (14) babies died of choking or 10 drowning, and two (2) of stab wounds. 11 A few newborns were thrown out with the 12 trash." 13 DR. CHARLES SMITH: That's correct. 14 MS. LINDA ROTHSTEIN: Was -- was that 15 information that Ms. Cools obtained from you, Dr. Smith? 16 DR. CHARLES SMITH: I don't know if it 17 was from me or -- or from Dr. Young, who was the other 18 author of that study. 19 MS. LINDA ROTHSTEIN: Okay. Which study 20 is that and is it on your curriculum vitae? Can you help 21 us find that? 22 DR. CHARLES SMITH: It -- it should be, 23 yes. 24 MS. LINDA ROTHSTEIN: So if we take your 25 written evidence --
1541 DR. CHARLES SMITH: Mm-hm. Yeah, oh, I'm 2 -- I'm sorry, yes, if you turn to my curriculum vitae, 3 which is -- 4 MS. LINDA ROTHSTEIN: Page 109. 5 DR. CHARLES SMITH: I think -- yeah, 6 it'll be just after page 125. I'll -- I'll find it here 7 in a moment, please. Yes, here it is: page 127, number 8 79, that's correct. 9 MS. LINDA ROTHSTEIN: Smith, Young -- 10 DR. CHARLES SMITH: Young. 11 MS. LINDA ROTHSTEIN: -- K. and Young JG. 12 Who's K. Young? 13 DR. CHARLES SMITH: That's Dr. Young's 14 son. Yeah, he -- he was involved in -- in this study, as 15 well. 16 MS. LINDA ROTHSTEIN: So, it's entitled 17 "A Review of Neonatacide in the Province of Ontario". 18 It appears to be a paper or presentation 19 made to the American Academy of Forensic Sciences in 20 February 1996. Is that right? 21 DR. CHARLES SMITH: That's correct, yeah. 22 MS. LINDA ROTHSTEIN: Tell us about that 23 study, if you would. How it was conducted. Why it was 24 conducted. What your involvement was. 25 DR. CHARLES SMITH: Oh, the -- the -- one
1551 (1) of the -- one (1) of the things that I mentioned was 2 -- sometime ago, was Dr. Young was encouraging studies on 3 pediatric forensic pathology be to -- to be done by the 4 Unit, and so the American Academy of Forensic Sciences 5 was one of the forums in which research papers were 6 proffered. 7 And this was a paper that was one (1) of a 8 number that were done over the years, looking at 9 different aspects of pediatric forensic pathology. In 10 this case, it was, as the name says, a review of 11 neonatacide in the Province of Ontario, and the -- the 12 study consisted essentially of -- of two (2) components. 13 It was a -- and it wasn't just Hospital for Sick Children 14 cases, they were all over the Province and so it was 15 review. 16 My part was a review of the pathology, 17 because there was some -- some specific and -- and 18 occasionally very interesting aspects of pathology that 19 had not previously been documents. 20 MS. LINDA ROTHSTEIN: For example? 21 DR. CHARLES SMITH: In the twenty-two 22 (22) cases, I believe we had two (2) instances of a major 23 brain abnormality, which could explain death in the 24 minutes or hours after birth, so the cases were called 25 neonatacide. But in my mind, this -- this issue perhaps
1561 brought into question just exactly what the cause of 2 death was; it could have been natural disease. 3 MS. LINDA ROTHSTEIN: Mm-hm. 4 DR. CHARLES SMITH: And the -- the other 5 half of the study was based on the review of files in the 6 Office of the Chief Coroner. And that was information, 7 some of which Dr. Cools has quoted here, and I -- I can't 8 remember this part of the study very well, but it would 9 be things from the -- you know, the coroner's 10 investigation, such as locations and, you know, 11 information about -- about the -- the mother and that 12 sort of thing,. 13 So it was two (2) halves; it was the 14 forensic pathology and then it was the circumstances or 15 scene investigation. 16 MS. LINDA ROTHSTEIN: But do I 17 misunderstand the point, that this study was really 18 looking at cases of non-naturally caused deaths in 19 newborns? 20 DR. CHARLES SMITH: Well, they were -- I 21 -- I mean, I don't have the paper in front of me, but -- 22 but we used, as our -- as our criteria, cases that had 23 been called, you know, homicide or however the coroner 24 system would have coded it and then used a sharp cutoff 25 for the age range.
1571 So we were looking for -- 2 MS. LINDA ROTHSTEIN: Right. 3 DR. CHARLES SMITH: -- you know, cases 4 that were called homicide in the newborn -- in the 5 newborn period. I believe that we excluded abandoned 6 bodies where there was no clear cause of death. 7 MS. LINDA ROTHSTEIN: So help me again 8 with what the interesting aspects of the pathology were 9 in those potentially homicidal, neonatal deaths. 10 DR. CHARLES SMITH: Well, the -- the 11 parts of it that I -- I thought were interesting; first 12 of all, the hydranencephaly, which is a very, very rare 13 malformation of the brain, but which often causes death 14 in the minutes or the hours or the days after birth. 15 So -- so that to me was very significant 16 because the teaching lesson there is that the -- the 17 newborn autopsy in suspicious circumstances demands 18 careful attention, because there can be congenital 19 malformations that could explain death and therefore the 20 case should be regarded as natural disease and is not -- 21 you know, it should not be suspicious. 22 MS. LINDA ROTHSTEIN: Are you saying that 23 these had actually been classified by the Coroner's 24 Office as homicides; that was the manner of death? 25 DR. CHARLES SMITH: That's --
1581 MS. LINDA ROTHSTEIN: That's a conclusion 2 of the death investigation and your work helped to show 3 that in fact there were two (2) that oughtn't to have 4 been classified with that manner of death. 5 Is that -- 6 DR. CHARLES SMITH: That -- 7 MS. LINDA ROTHSTEIN: -- what you're 8 saying? 9 DR. CHARLES SMITH: As I understand the 10 search criteria, yeah, that were used. As I -- as I 11 understand it. There were cases -- there were such cases 12 as I understand now. 13 What the disposition was, obviously I 14 can't tell you, but that was -- that was for me, a 15 fascinating part of the pathology, because the -- the 16 take-home message that I felt, from the viewpoint of a 17 pathologist, that this paper had, was the -- the 18 necessity for a careful autopsy in a potential case of 19 neonatacide by someone who would be sensitive or familiar 20 with congenital malformations, and especially subtle 21 congenital malformations that could explain death on a 22 natural basis. 23 So to me, that was the -- the important 24 part of the forensic pathology or the pediatric pathology 25 really, not -- you know, not necessarily the forensic
1591 pathology. 2 MS. LINDA ROTHSTEIN: Okay. Dr. Smith, 3 may I turn your attention then to some aspects of 4 Sharon's case. You will need the overview report for her 5 case. Mr. Centa is going to help you with that. 6 And you will need your written evidence on 7 that case, which begins at Tab O, page 82. 8 DR. CHARLES SMITH: Yes. 9 10 (BRIEF PAUSE) 11 12 MS. LINDA ROTHSTEIN: And I take it, Dr. 13 Smith, from your written evidence that there is no doubt 14 that in this case you did not request a consultation with 15 Dr. Wood at the time of autopsy? 16 DR. CHARLES SMITH: No, I did not. 17 MS. LINDA ROTHSTEIN: I -- I read your 18 written evidence and I see that you say that you got 19 involved in this case, to use your words, at the 20 insistence of Dr. Young -- 21 DR. CHARLES SMITH: Yes. 22 MS. LINDA ROTHSTEIN: -- and with great 23 reluctance on your part. Or considerable -- 24 DR. CHARLES SMITH: Yes. Yes. 25 MS. LINDA ROTHSTEIN: And can you take a
1601 look at the overview report -- or actually, take a look 2 at Volume II for a moment, Tab 21, which is the evidence 3 that you gave at the preliminary inquiry in this case. I 4 just want you to look at page 28, because you were asked 5 some questions about how you did become involved in this 6 case. 7 8 (BRIEF PAUSE) 9 10 DR. CHARLES SMITH: Tab 10 -- 21, oh, I'm 11 sorry, page -- 12 MS. LINDA ROTHSTEIN: So it's PFP -- 13 DR. CHARLES SMITH: -- slash -- slash 28, 14 I'm sorry. 15 MS. LINDA ROTHSTEIN: That's right, so 16 it's 076807 at slash 28. Question -- the first full 17 question on that page, Dr. Smith: 18 "So how is it that you came to be the 19 one to do this aup -- autopsy? 20 A: In the case of Sharon, she's a 21 child, and as a general rule, 22 children's autopsies are not performed 23 in Toronto by the pathologists who do 24 the adult cases. Just as there's 25 regionalization and triaging going on
1611 with adults, at the pediatric level an 2 effort is made to identify several 3 centres in Ontario which would do the 4 pediatric forensic autopsies and they 5 would not be done in anything other 6 than the centres associated with the 7 five (5) medical schools and perhaps 8 the centre in Northern Ontario. 9 So I was called on to do the autopsy on 10 Sharon because she's in the pediatric 11 age range, and so it was given to me 12 because I do the majority of the 13 pediatric forensic work for the greater 14 Toronto area. 15 Q: Who contacted you to do -- to 16 conduct this autopsy? 17 A: I don't recall that. Someone 18 phoned me, but I couldn't tell you 19 who." 20 And then you go on and you don't -- you're 21 not more specific about how you came to be involved. 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: And -- so I'm 24 really asking you, Dr. Smith, how certain are you that 25 you undertook this work not simply for the reasons that
1621 you gave at the preliminary inquiry, but because this was 2 a very specific request from Dr. Young? 3 DR. CHARLES SMITH: Certainly by the time 4 I had finished at the -- at the coroner's building that 5 day, I understood from Mr. Blenkinsop that Dr. Young 6 insisted that I do it. 7 MS. LINDA ROTHSTEIN: But in the -- your 8 -- your evidence is -- 9 DR. CHARLES SMITH: Mm-hm. 10 MS. LINDA ROTHSTEIN: -- that that wasn't 11 the initial impression -- 12 DR. CHARLES SMITH: Mm-hm. 13 MS. LINDA ROTHSTEIN: -- that you had. 14 Is that what you're telling us? 15 DR. CHARLES SMITH: I -- at this point 16 now, I don't know how strong that initial impression was. 17 I -- I -- to the best of my recollection it was -- it was 18 Mr. Blenkinsop who phoned me. I could be wrong on that, 19 but I believe it was Mr. Blenkinsop who phoned me, but 20 I'm -- but I don't have a -- a perfect recollection on 21 that. 22 MS. LINDA ROTHSTEIN: Okay. In any 23 event, as soon as this young seven (7) year old arrives 24 in the situation with which you were presented, did you 25 have any feeling that this was a case that was beyond
1631 your expertise, Dr. Smith? 2 DR. CHARLES SMITH: Well to -- to start 3 with, I really didn't see very much of the body, but I 4 understood it was multiple penetrating injuries and -- 5 and I did recognize that I had limited expertise in that. 6 MS. LINDA ROTHSTEIN: So you recognized 7 that -- 8 DR. CHARLES SMITH: Mm-hm. 9 MS. LINDA ROTHSTEIN: -- in June of 1997? 10 DR. CHARLES SMITH: Yes. 11 MS. LINDA ROTHSTEIN: And why didn't that 12 lead you to seek some assistance from someone who did 13 have such expertise? Leave out the dog for the moment. 14 DR. CHARLES SMITH: Yes. 15 MS. LINDA ROTHSTEIN: We've heard from 16 Dr. Chiasson that he was around, that he was aware of you 17 conducting this autopsy; he was the Chief Forensic 18 Pathologist in the province; he was forensically trained. 19 DR. CHARLES SMITH: Mm-hm. I -- yes, 20 that was -- 21 MS. LINDA ROTHSTEIN: How, if at all -- 22 DR. CHARLES SMITH: -- that -- that's -- 23 MS. LINDA ROTHSTEIN: -- did involvement 24 by him factor into your thinking, sir? 25 DR. CHARLES SMITH: I was unaware of the
1641 -- you know, of such availability. The story -- or I 2 shouldn't say the story. My understanding was they 3 autopsy was to be done on the weekend. The coverage for 4 the -- for the Toronto forensic pathology unit was such 5 that -- that in the decision making on the case, it was 6 felt that this was a pediatric case, and so therefore I 7 was asked to do it. 8 And it was at the coroner's building 9 because of the nec -- of the necessity or the desire by 10 the police force to do a laser examination of the body 11 looking for fibres. So it required the specific 12 facilities of the Office of the Chief Cor -- or the -- or 13 the coroner's building, I should say. 14 MS. LINDA ROTHSTEIN: Apart from the fact 15 that this was indeed the body of a child, as opposed to 16 an adult, was there anything pediatric about the 17 presentation of this case? 18 DR. CHARLES SMITH: Not specifically, no. 19 MS. LINDA ROTHSTEIN: Is it your 20 evidence, Dr. Smith, that you asked anyone about whether 21 Dr. Chiasson could be involved, consulted, obtained? 22 Is it your evidence that you made any 23 efforts whatsoever of that nature, or kind? 24 DR. CHARLES SMITH: I -- I don't recall 25 that. I -- what I recall is -- is what I -- is what I
1651 indicated to you, that I was -- was asked to do it. It 2 was at the coroner's building for the reasons stated, and 3 that -- and that Dr. Young felt that I was the best 4 person to do it. 5 MS. LINDA ROTHSTEIN: But you don't know 6 that because Dr. Young himself told you that; you have 7 that as secondhand information. 8 Is that your evidence? 9 DR. CHARLES SMITH: Yes. From Mr. 10 Blenkinsop, yes. 11 MS. LINDA ROTHSTEIN: And just so it's 12 clear -- 13 DR. CHARLES SMITH: Mm-hm. 14 MS. LINDA ROTHSTEIN: -- at any stage, 15 did you speak directly with Dr. Young about your conduct 16 of this autopsy at the time? I'm not talking about -- 17 DR. CHARLES SMITH: Yeah. 18 MS. LINDA ROTHSTEIN: -- after the fact. 19 DR. CHARLES SMITH: No. I -- I don't -- 20 I don't have any specific recollection of any 21 conversations with -- with Dr. Young, or other members of 22 the OCCO. 23 MS. LINDA ROTHSTEIN: Okay. Now having 24 acknowledged that you also didn't request a consultation 25 with Dr. Wood, I trust you're aware that when Dr. Wood
1661 testified last Friday, he made clear to us that he is 2 almost invariably available 24/7. 3 Was that something that you knew at the 4 time? Were you aware of how much he made himself 5 available and how close in proximity he was to the 6 morgue? 7 DR. CHARLES SMITH: No. I -- well I knew 8 he -- where he worked during the daytime was -- was as 9 close to the morgue as I was, virtually, so it would be a 10 few blocks away. The issue of his availability is not 11 something that I knew anything about. 12 MS. LINDA ROTHSTEIN: What previous 13 contact had you had with Dr. Wood? On what cases? In 14 what context? 15 DR. CHARLES SMITH: I don't believe that 16 I had ever had contact with Dr. Wood on any of my cases, 17 but I -- but I could stand corrected on that, if he has 18 different information than I do. 19 I was aware and had seen him on -- on one 20 (1), or perhaps more than one (1) occasion, at the 21 coroner's building being involved in the identification 22 of skeletal remains using dentition. So I -- I know who 23 he was, but I -- I hadn't, to the best of my 24 recollection, dealt with him on -- on anything specific. 25 MS. LINDA ROTHSTEIN: So you knew he was
1671 an available resource? 2 DR. CHARLES SMITH: That he could be, 3 yes. 4 MS. LINDA ROTHSTEIN: You didn't have 5 much knowledge about his strengths beyond that? 6 DR. CHARLES SMITH: No. No, I didn't. 7 No. 8 MS. LINDA ROTHSTEIN: And are we to 9 understand that at least one (1) of the reasons that you 10 didn't ask for his assistance right at the post-mortem 11 examination was because, as I read your written evidence, 12 although you knew of the possibility of the presence of a 13 dog, it did not occur to you until some time later that 14 Sharon's death might actually have been caused by a dog. 15 DR. CHARLES SMITH: That's correct. 16 MS. LINDA ROTHSTEIN: And that's because, 17 Dr. Smith, that was not, on presentation at the post- 18 mortem, the operative police theory. 19 Is that your evidence? 20 DR. CHARLES SMITH: Yes, yes. 21 MS. LINDA ROTHSTEIN: And what you saw 22 with your own eyes did not raise any concerns about that 23 police theory? 24 DR. CHARLES SMITH: That's correct. 25 MS. LINDA ROTHSTEIN: Do you now accept
1681 that you were too quickly wedded to the police theory to 2 be able to objectively assess the nature of the wounds on 3 Sharon's body? 4 DR. CHARLES SMITH: No, I disagree with 5 that. 6 MS. LINDA ROTHSTEIN: Doesn't it follow 7 from what you and I have just agreed to? 8 DR. CHARLES SMITH: No, no. I don't 9 think that -- that my wedding to the police theory 10 excluded anything, as you've suggested, because -- 11 because the possibility wasn't presented. 12 MS. LINDA ROTHSTEIN: Well, do you now -- 13 DR. CHARLES SMITH: Yeah. 14 MS. LINDA ROTHSTEIN: -- accept, as an 15 alternative, that you were too confident about your 16 ability to competently assess the nature of the wounds on 17 Sharon's body to fully consider all possible explanations 18 for them? 19 DR. CHARLES SMITH: I -- I don't think -- 20 I'm -- I'm not sure I would use the word "confident", 21 because I certainly recognized that I had limited 22 experience. I now recognize how limited -- yeah, it -- 23 it truly was in terms of this type of injury, but I had 24 no recognition of it at that time. 25 MS. LINDA ROTHSTEIN: You didn't know
1691 what you didn't know? 2 DR. CHARLES SMITH: That's correct. 3 MS. LINDA ROTHSTEIN: And it does follow 4 from that, that you were therefore more certain that you 5 ought -- than you ought to have been about your own 6 abilities? 7 DR. CHARLES SMITH: I can accept that. 8 MS. LINDA ROTHSTEIN: And in retrospect, 9 I take it you don't quarrel with the proposition that 10 best practices would surely mandate that a forensic 11 odontologist view the wounds at autopsy where there is 12 any issue of animal interference? 13 DR. CHARLES SMITH: I think if you had 14 said to me at the time, looking at a body, could these be 15 dog bites, yeah. Yeah, within -- within the context of 16 that environment, then I would have -- would have 17 recognised the possibility -- or would have recognised 18 that a bite mark expert would -- would have much more 19 knowledge than I did. 20 I simply didn't even recognise that the 21 marks on Sharon's body entered -- or should have brought 22 about the possibility of dog bite. I -- it wasn't on my 23 differential diagnosis because I had never seen anything 24 like it. And -- and it did not -- none of the marks had 25 the -- the bite mark pattern that I -- that I had seen or
1701 had seen in photographs. 2 MS. LINDA ROTHSTEIN: Had you ever seen 3 them in the flesh? 4 DR. CHARLES SMITH: Only -- only on one 5 (1) or two (2) cases a long time before, and -- and that 6 was quite different than this and so -- and so my frame 7 of reference was really quite different. 8 MS. LINDA ROTHSTEIN: Page 83 of your 9 written evidence you say that when you left the OCCO 10 building after the post-mortem, you thought Dr. Wood 11 would be looking at the body in the next few days. 12 DR. CHARLES SMITH: Yes. 13 MS. LINDA ROTHSTEIN: That's at the 14 bottom of that page, just before the last header. 15 Do you see that? 16 DR. CHARLES SMITH: Yes. 17 MS. LINDA ROTHSTEIN: And that you and 18 Mr. Blenkinsop had discussed requesting Dr. Wood to come 19 and see the body. 20 DR. CHARLES SMITH: Yes, that's right. 21 Yes. 22 MS. LINDA ROTHSTEIN: And that you 23 understood that Mr. Blenkinsop was going to speak to Dr. 24 Young at the next morning case conference and make the 25 necessary arrangements to enable Dr. Wood's examination.
1711 DR. CHARLES SMITH: If -- if his -- yes, 2 there -- yes, if it was -- if there was the necessity of 3 him writing a formal report, then there would have to be 4 that direction from the -- from a responsible coroner, as 5 opposed to me or anyone else. 6 MS. LINDA ROTHSTEIN: But am I right, Dr. 7 Smith, that you never made any effort to follow up with 8 anyone at the OCCO with respect to Dr. Wood's opinion? 9 DR. CHARLES SMITH: No, no. The -- the -- 10 MS. LINDA ROTHSTEIN: Yes, I'm right? 11 DR. CHARLES SMITH: You -- I'm sorry, 12 you're right, I -- I did not. No, that -- that informal 13 consultation was requested by Mr. Blenkinsop. 14 MS. LINDA ROTHSTEIN: You didn't call him 15 yourself? 16 DR. CHARLES SMITH: No, I didn't. 17 MS. LINDA ROTHSTEIN: You didn't follow- 18 up with Mr. Blenkinsop about it? 19 DR. CHARLES SMITH: Yes. Yes, I did. 20 Yes. 21 MS. LINDA ROTHSTEIN: When did you follow 22 up with Dr. Blenkinsop and why did nothing come of it if 23 you did? 24 DR. CHARLES SMITH: Well, sometime later 25 Mr. Blenkinsop indicated to me that -- that Dr. Wood --
1721 that he had -- had given Dr. Wood some information about 2 the case, and -- and all I can remember is Mr. Blenkinsop 3 telling me that -- that Dr. Wood had looked at the 4 reprosil cast, the orange cast, that we had done and -- 5 and didn't think it would be of any value for the tool 6 mark interpretation that we had -- had wondered about. 7 So that was -- to the best of my 8 recollection, that was just an informal conversation, the 9 kind that might -- or that would have occurred when Dr. 10 Wood, as a frequent visitor to the Unit, might have been 11 asked by the staff about cases going through on something 12 less than a formal basis, because I certainly knew 13 sometime later that -- that the cast that we had done was 14 not going to be helpful. 15 MS. LINDA ROTHSTEIN: Dr. -- Dr. Smith, I 16 don't -- 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: -- want to, if I 19 can avoid it, go through all the timing. 20 DR. CHARLES SMITH: Okay. 21 MS. LINDA ROTHSTEIN: It's de -- quite 22 detailed, and I take it you don't have a very clear 23 recollection of these dates at all? 24 DR. CHARLES SMITH: No, I don't. 25 MS. LINDA ROTHSTEIN: But we heard in the
1731 clearest possible terms from Dr. Wood that he did not 2 become retained in this case, to use a lawyer's word, as 3 a result of any contact by Mr. Blenkinsop or the 4 Coroner's Office but because of the local coroner and 5 Crown attorney. 6 DR. CHARLES SMITH: Yes. Yeah, he -- he 7 took on a formal role, as I understand it, much later. 8 Yes. 9 MS. LINDA ROTHSTEIN: Not just formal 10 role -- 11 DR. CHARLES SMITH: Mm-hm. 12 MS. LINDA ROTHSTEIN: -- he says "any" 13 role, so we're clear. 14 He left no room for any informal 15 consultation that occurred before his formal role which 16 was much, much later in December, with his written report 17 in February. 18 So, I just want -- I just want to have the 19 benefit of your evidence, sir. You did not call Dr. Wood 20 yourself? 21 DR. CHARLES SMITH: No, I didn't. No. 22 MS. LINDA ROTHSTEIN: You can't be 23 certain about your conversations with Mr. Blenkinsop, 24 surely? 25 DR. CHARLES SMITH: That's my best
1741 recollection, but -- but I recognize that that's only a - 2 - a rec -- a best recollection. 3 MS. LINDA ROTHSTEIN: You certainly can't 4 date it? 5 DR. CHARLES SMITH: No. Not 6 specifically, no. 7 MS. LINDA ROTHSTEIN: You're not 8 suggesting it was enough initiative by you to engage Dr. 9 Wood on the troubling issues that arose after the post- 10 mortem with respect to the presence of a dog and its 11 potential as the cause of this death? You're not 12 suggesting -- 13 DR. CHARLES SMITH: Yeah. 14 MS. LINDA ROTHSTEIN: -- that are you, 15 sir? 16 DR. CHARLES SMITH: No. But the -- to be 17 clear here, the issue of a dog came along later than -- 18 than that -- that first connection. 19 MS. LINDA ROTHSTEIN: That's true -- 20 DR. CHARLES SMITH: Mm-hm. 21 MS. LINDA ROTHSTEIN: -- but you weren't 22 seeking involvement of Dr. Wood when you didn't know 23 about the involvement of the dog, right? 24 DR. CHARLES SMITH: That's correct. 25 Yeah.
1751 MS. LINDA ROTHSTEIN: You only sought, in 2 your terms, his involvement once you knew of it? 3 DR. CHARLES SMITH: I didn't seek his 4 involvement when that concern was presented. As I 5 understand, his involvement was sought by one (1) of the 6 senior members of the Office of the Chief Coroner. 7 MS. LINDA ROTHSTEIN: So it wasn't as a 8 result of anything that you were asking for? 9 DR. CHARLES SMITH: That's correct. 10 MS. LINDA ROTHSTEIN: Okay. That's 11 helpful. 12 What you did seek, though, Dr. Smith, was 13 a neuropathology consultation from Dr. Deck? 14 DR. CHARLES SMITH: Yes. Dr. Deck 15 examined the brain, yes. 16 MS. LINDA ROTHSTEIN: You thought that 17 was necessary? 18 DR. CHARLES SMITH: Well -- 19 MS. LINDA ROTHSTEIN: I don't quarrel 20 with it. 21 DR. CHARLES SMITH: Yeah. Mm-hm. No, it 22 was -- as part of doing the autopsy, the question arose 23 to whether or not the neuropathology examination would -- 24 would best be performed at the Coroner's Building or at 25 the Hospital for Sick Children. And I felt that it was
1761 appropriate to ask Dr. Deck to do that, if he was willing 2 to do so. 3 MS. LINDA ROTHSTEIN: In other words, you 4 did think it was appropriate to bring on others to 5 provide consultation assistance to you on this case? 6 DR. CHARLES SMITH: Well, I -- I brought 7 on a neuropathologist in virtually every autopsy I did so 8 that was my standard practice in every autopsy. 9 MS. LINDA ROTHSTEIN: Okay. But in 10 addition to bringing on Dr. Deck, you also sent a portion 11 of the excised scalp to Dr. Haskell, did you not? 12 DR. CHARLES SMITH: Yes. Yes, that was 13 at the request of either the investigators or the Office 14 of the Chief Coroner. 15 MS. LINDA ROTHSTEIN: So help us 16 understand then, Dr. Smith, why once you did know that 17 there was an issue about the dog having some 18 responsibility for the death of this young girl, you did 19 not take steps to ensure that Dr. Wood or someone else 20 was obtained to provide their views and advice? 21 DR. CHARLES SMITH: To the best of my 22 recollection, the -- the -- by the time I knew of that 23 consideration -- the serious consideration -- Dr. Wood 24 had -- had been approached. And so I don't believe I 25 knew that before Dr. Wood knew that.
1771 MS. LINDA ROTHSTEIN: I'm not so sure 2 that's right, Dr. Smith. 3 DR. CHARLES SMITH: Mm-hm. 4 MS. LINDA ROTHSTEIN: If we look at your 5 written evidence, page 83 -- 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: -- you don't 8 dispute the content of Constable Goodfellow's notes at 9 the bottom of page 83. We can go to those, Dr. Smith. 10 But they clearly alert you, at a very early stage, to, at 11 least, the possibility of a dog attack. 12 DR. CHARLES SMITH: Well, I think -- I 13 think that the -- the issue of the dog -- of a dog 14 attack, in terms of what -- in reading Detective Sergeant 15 Bird's note, was that it was not brought to me as -- as a 16 cause of death. It was simply, you know, an attack or a 17 scratch mark. 18 I -- I certainly had no understanding, to 19 the best of my recollection, that -- that the explanation 20 of death due to dog attack was presented at that time. 21 MS. LINDA ROTHSTEIN: Dr. Smith, the 22 other thing that we've heard from Dr. Wood is that, and 23 we know for certain, is that his first report is dated 24 February 22, 1998? 25 DR. CHARLES SMITH: Yes.
1781 MS. LINDA ROTHSTEIN: And he testified 2 that he never met with you in person nor spoke to you 3 about Sharon's case before the preliminary inquiry which 4 commenced not very long after that. 5 There are also no notes that we've been 6 able to find of a meeting between the Kingston police, 7 Dr. Cairns, Dr. Chiasson, perhaps Dr. Queen you say, and 8 you, before the preliminary inquiry? 9 DR. CHARLES SMITH: That's correct, yeah. 10 MS. LINDA ROTHSTEIN: Are you certain, 11 all these years later, that there was such a meeting 12 then? 13 DR. CHARLES SMITH: To the best of my 14 recollection, yes. I -- I do -- I do remember a 15 discussion that was held in a meeting, and to the best of 16 my recollection the -- the people who I indicated were 17 there, so that's -- 18 MS. LINDA ROTHSTEIN: Yes, it's -- 19 DR. CHARLES SMITH: -- that's the best of 20 my recollection. 21 MS. LINDA ROTHSTEIN: Is it possible, 22 sir, given the frailty of your recollection that -- of 23 some of the detail of this case and others as we've seen, 24 that you were simply told by the police or Crown what Dr. 25 Wood's opinion was, or that you had the opportunity to
1791 read his report before you testified? 2 DR. CHARLES SMITH: No, I -- no. I'm 3 quite certain that I heard that opinion from Dr. Wood 4 before he had finalized it. 5 MS. LINDA ROTHSTEIN: And what is the 6 basis of that certainty, Dr. Smith? 7 DR. CHARLES SMITH: Just my recollection 8 of the meeting. Yeah, -- 9 MS. LINDA ROTHSTEIN: Can you be at all 10 more precise? 11 DR. CHARLES SMITH: Other than the 12 certainty of his opinion, because he expressed it very 13 clearly, -- 14 MS. LINDA ROTHSTEIN: There's no doubt 15 about that. 16 DR. CHARLES SMITH: Mm-hm. 17 MS. LINDA ROTHSTEIN: We know he 18 expressed it -- 19 DR. CHARLES SMITH: Yeah. 20 MS. LINDA ROTHSTEIN: -- the question is 21 when, Dr. Smith? 22 DR. CHARLES SMITH: When -- to the -- no, 23 to the best of my recollection, it was held some long 24 time after the autopsy. But it was -- it was his initial 25 evaluation of the photographs that he was presenting or
1801 discussing, and -- and I'm -- my memory, you know, on 2 this, I think, is good. 3 If we -- no, I -- I won't say that. I 4 simply say that's -- that's my -- my memory. If -- if 5 all of the others have a different and synoptic view, 6 then I stand corrected. 7 MS. LINDA ROTHSTEIN: Well, not all of 8 the others. 9 DR. CHARLES SMITH: Mm-hm. 10 MS. LINDA ROTHSTEIN: Dr. Chiasson does. 11 I anticipate that if we were to hear from Dr. Queen, he 12 might take a view that is similar to yours -- that it 13 occurred before. So I don't want to suggest -- 14 DR. CHARLES SMITH: Oh, okay. 15 MS. LINDA ROTHSTEIN: -- to you, sir, 16 that there's no one -- 17 DR. CHARLES SMITH: Mm-hm. 18 MS. LINDA ROTHSTEIN: -- who sees it your 19 way, but I just wanted to get from you the very best 20 evidence you have about why you have that level of 21 certainty as to the timing of the meeting? 22 DR. CHARLES SMITH: I -- it's -- it's 23 based purely on recollection, but I think it's a valid 24 recollection. 25 MS. LINDA ROTHSTEIN: Cairns also put the
1811 meeting -- sorry, sorry, thank you. Dr. Cairns also put 2 the meeting before the prelim. Thank you. So you are 3 not alone in that view. 4 DR. CHARLES SMITH: All right. Thank 5 you. 6 MS. LINDA ROTHSTEIN: Whenever that 7 meeting was, you certainly learned about Dr. Wood's 8 opinion? 9 DR. CHARLES SMITH: Yes. 10 MS. LINDA ROTHSTEIN: And with re -- with 11 respect to Dr. Wood, he'd be the first one to tell you 12 that it was fairly unequivocal, right? 13 DR. CHARLES SMITH: Yes, I -- I accept 14 that. 15 MS. LINDA ROTHSTEIN: And it became clear 16 to you, I understand, from your written evidence, that he 17 was not going to be called as a witness at the 18 preliminary inquiry. 19 That's what you were told by the Crown? 20 DR. CHARLES SMITH: When I -- when I 21 arrived there that morning, that's the best of my 22 recollection. It was Mr. McKenna who indicated that to 23 me. 24 MS. LINDA ROTHSTEIN: And I look at your 25 written evidence, and it records at page 84 that your
1821 understanding was that this decision was made because the 2 Crown did not want to lend credence to the dog attack 3 theory? 4 DR. CHARLES SMITH: That's my 5 understanding, yes. 6 MS. LINDA ROTHSTEIN: So there can be no 7 doubt, Dr. Smith, that entering that courtroom you knew 8 that the defence was, at least, going to proffer the 9 dog -- 10 DR. CHARLES SMITH: Mm-hm. 11 MS. LINDA ROTHSTEIN: -- attack theory. 12 DR. CHARLES SMITH: Yes. 13 MS. LINDA ROTHSTEIN: Fair? 14 DR. CHARLES SMITH: Yes. 15 MS. LINDA ROTHSTEIN: And your evidence, 16 at the preliminary inquiry, that a dog did not cause any 17 of Sharon's wounds was definitive. You agree? 18 DR. CHARLES SMITH: It was much more 19 definitive than -- than I should have communicated, yes. 20 MS. LINDA ROTHSTEIN: Indeed, if we look 21 at your transcript -- you can look at the overview 22 report, at paragraph 184, to take a sample of how 23 unqualified your opinion was, and it's 144453 slash 80. 24 25 (BRIEF PAUSE)
1831 2 MS. LINDA ROTHSTEIN: You see that Mr. 3 Rumble -- 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: -- who was acting 6 for the defence, asked Dr. Smith a number of times about 7 the possibility of a dog having attacked Sharon: 8 "Q: I suggest those contusions..." 9 Those were the ones visible in photos F20 10 to F15 to the neck area: 11 "...are consistent with a pit bull dog 12 grabbing the child by the neck and 13 clamping down. 14 A: I suggest you're absolutely wrong." 15 DR. CHARLES SMITH: Yes. 16 MS. LINDA ROTHSTEIN: 17 "Okay, and can you tell me in your 18 opinion -- 19 I don't see any lacerations. 20 Pardon me? 21 I don't see any lacerations. There are 22 no marks in here that look like a 23 tearing or laceration. Furthermore, I 24 don't see the pattern, or dental arch 25 that would be associated with canine
1841 dentition. So we have no disruption in 2 terms of a laceration. We don't have 3 any tearing going on. I don't have any 4 marks that look like a canine dentition 5 pattern. No, this doesn't look to me 6 like a pit bull or any other 7 carnivorous animal which has done 8 that." 9 And you go on. 10 DR. CHARLES SMITH: Yes. 11 MS. LINDA ROTHSTEIN: Were you actually 12 as confident as you sounded, Dr. Smith? 13 DR. CHARLES SMITH: No. No. I -- I 14 recognize that -- that I was not, no. I -- I was over- 15 dogmatic. 16 MS. LINDA ROTHSTEIN: But were you 17 actually as certain in your own mind, let -- let alone 18 how you expressed it in a courtroom, and a nod isn't 19 appropriate. 20 DR. CHARLES SMITH: Mm-hm. 21 MS. LINDA ROTHSTEIN: Was your level of 22 certainty anything like the way you portrayed it, sir? 23 DR. CHARLES SMITH: Well, because of the 24 level of certainty that I knew of -- of Dr. Wood, I 25 certainly -- I certainly had a high degree of certainty,
1851 yes. 2 MS. LINDA ROTHSTEIN: So if I understand 3 what you're saying -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. LINDA ROTHSTEIN: -- you were more 6 definitive, you sounded more certain, you expressed your 7 opinion in much more absolute terms because you knew 8 there was some other witness who shared that view? 9 DR. CHARLES SMITH: I had -- yeah, I had 10 relied on -- on him. He solidified my -- my view, and I 11 expressed a very solid view. 12 Had he not solidified it, then I don't 13 believe I would have expressed it in such a way, but I 14 was very concrete in that. 15 MS. LINDA ROTHSTEIN: This would surely 16 be one (1) of those cases when, to use your words on 17 Monday, you saw your role as putting forward the Crown's 18 case. 19 DR. CHARLES SMITH: I -- I believe that - 20 - that I -- I could well have slipped into an advocacy 21 role here, yes. I recognize -- I recognize that err. 22 MS. LINDA ROTHSTEIN: I suggest to you, 23 Dr. Smith, that even in 1998, you knew that wasn't the 24 right thing to do. 25 DR. CHARLES SMITH: No. No. I -- I
1861 shouldn't say no. I agree with you. 2 No, I -- I knew that I was not to be an 3 advocate, and I believe that I failed in this case. 4 MS. LINDA ROTHSTEIN: You knew by then, 5 because you were a seasoned and sophisticated expert 6 witness by 1998. 7 DR. CHARLES SMITH: Well, I would agree 8 that I was seasoned, if only bearing battle scars. I'm 9 not certain I would describe myself as sophisticated. 10 MS. LINDA ROTHSTEIN: How did that happen 11 to you then, Dr. Smith? 12 DR. CHARLES SMITH: I -- I think, as I -- 13 as I consider it, and without -- without being able to 14 replay the exact thing, I think I was -- I was defensive 15 and overly confident. Defensive that -- that I might 16 have missed such a diagnosis, and overly confident that 17 such a possibility was so remote as to be non-existent. 18 MS. LINDA ROTHSTEIN: This wasn't the 19 only time it happened, was it? 20 DR. CHARLES SMITH: No, no. There have 21 been many times, and I have acknowledged them; that in 22 court, I -- I was more dogmatic or more defensive than I 23 should have been. 24 COMMISSIONER STEPHEN GOUDGE: I hear you 25 saying, Dr. Smith, you were communicating Dr. Wood's
1871 level of confidence rather more than your own. 2 DR. CHARLES SMITH: Well, I -- yes. The 3 -- the early communication that day with Mr. McKenna was 4 he wanted me to -- he wanted to dismiss it. That's why 5 he didn't ask for Dr. Wood, and he -- his -- and I 6 understood from him my job was to communicate the 7 certainty of that. 8 And so I believe that -- that I may have 9 taken on that -- that adversarial role when, in fact, a 10 proper thing to do would have been for me to say, No, if 11 this is an issue you -- you get someone, as opposed to 12 give me the job of trying to communicate something for 13 someone else. 14 COMMISSIONER STEPHEN GOUDGE: Or, at 15 least, being transparent about whose confidence it was 16 you were communicating. 17 DR. CHARLES SMITH: You're absolutely 18 right. I accept that. 19 20 CONTINUED BY MS. LINDA ROTHSTEIN: 21 MS. LINDA ROTHSTEIN: How would Mr. 22 McKenna have any reason to know that you weren't that 23 certain? You wouldn't have told him that, would you? 24 DR. CHARLES SMITH: I have no 25 recollection of communications with -- with the Crown or
1881 the Assistant Crown. 2 MS. LINDA ROTHSTEIN: And it was at this 3 preliminary inquiry that Mr. Rumble, who was then Ms. 4 Reynold's defence counsel, asked you about the limits of 5 your relevant expertise. 6 You remember that, do you not, Dr. Smith? 7 DR. CHARLES SMITH: Yes. 8 MS. LINDA ROTHSTEIN: Before we look at 9 that, I want you to think about what you told Jane O'Hara 10 in May of 2001 about that. And you can find it if you 11 like in Volume I or I can just read you a little squib, 12 if you don't mind. 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: At 303004 slash 23. 15 She was asking you about how you got involved in this 16 case and how you'd gone wrong. Remember, it's May 2001, 17 and -- and it was now well known that this was a dog-bite 18 case; or, at least, that most experts had so opined. But 19 you said to her: 20 "Right from the word go, when the issue 21 was at hand, I didn't know anything 22 about dog bites. I mean, I've seen 23 them. I saw them when I was a surgery 24 resident doing plastic surgery and all 25 that sort of stuff. And I've seen
1891 pictures of bears and polar bears, and 2 all that sort of stuff, but I know 3 enough to know I don't know enough in 4 the area." 5 That's what you said to Ms. O'Hara and 6 actually -- 7 DR. CHARLES SMITH: Four (4) years later. 8 MS. LINDA ROTHSTEIN: Four (4) years 9 later. 10 DR. CHARLES SMITH: Mm-hm. Mm-hm. 11 MS. LINDA ROTHSTEIN: But what you said 12 to Mr. Rumble, at page 81, when he asks you about these 13 kinds of cases, slash 81, top of the page: 14 "Doctor, before you did this autopsy 15 how many other cases have you been 16 involved in where a dog has been 17 responsible for the wounds? 18 A: I've seen dog wounds. I've seen 19 coyote wounds. I've seen wolf wounds. 20 I recently went to an archipelago of 21 islands owned by another country up 22 near the North Pole and had occasion to 23 study osteology and look at the 24 patterns of wounding from polar bears. 25 As absurd as it is to think that a
1901 polar bear attacked Sharon, so it is 2 equally absurd that it's a dog wound. 3 Now having said that, let me make one 4 (1) more statement. It is possible 5 that a dog interfered with the body. I 6 have no doubt about that. I live on a 7 farm with a dog, and I know that if 8 there is a dead rabbit or something 9 around, the dog will interfere with the 10 body whether the dog killed that animal 11 or not. And so dogs in closed 12 quarters, with humans that have 13 deceased, will interfere with the body. 14 So it is quite possible that a dog 15 interfered with the body, but I do not 16 see on Sharon's body any marks that I 17 would say are typical of canine 18 activity." 19 Why did you characterize your expertise in 20 that way, Dr. Smith? 21 DR. CHARLES SMITH: I believe that that's 22 a reflection of my -- of sort of feeling defensive and 23 over-confident. 24 MS. LINDA ROTHSTEIN: Indeed, Mr. Rumble 25 pursued that issue --
1911 DR. CHARLES SMITH: Mm-hm. 2 MS. LINDA ROTHSTEIN: -- and at paragraph 3 193, he actually suggested to you that there was a 4 difference between the kind of opinion you were 5 expressing in this case and what was required. He was 6 aset -- attempting, I think, to create the contrast 7 between a pediatric pathologist on the one (1) hand, and 8 a forensic one (1) on the other. 9 Have you got -- 10 DR. CHARLES SMITH: Yes. 11 MS. LINDA ROTHSTEIN: -- slash 88? 12 DR. CHARLES SMITH: Yes, I do, yes. 13 MS. LINDA ROTHSTEIN: 14 "Dr. Smith was also asked to comment on 15 the difference between his ability to 16 offer opinions on the source of 17 wounding versus the ability of forensic 18 pathologists. 19 Q: Normally in your area of expertise 20 you're not as well qualified as a 21 forensic pathologist, are you, to offer 22 opinions as to the source of wounding 23 on bodies that you do autopsies on? 24 A: The -- now you've asked an 25 interesting question. It depends on
1921 the type of wound pattern that we're 2 looking at. The adult pathologist -- 3 forensic pathologists -- tend to steer 4 away from the children because of the 5 very distinct or peculiar aspects of 6 wound patterns in kids." 7 DR. CHARLES SMITH: Yes. 8 MS. LINDA ROTHSTEIN: Stopping there for 9 a moment, Dr. Smith. Mr. Rumble was right. 10 DR. CHARLES SMITH: Yes. Yeah, I -- I 11 acknowledge my error, yes. Yes. 12 MS. LINDA ROTHSTEIN: He continued: 13 "How can you say that you're more 14 qualified to assess the source of 15 wounds on a child than a forensic 16 pathologist who deals with adults? 17 A: Because the pattern of wounding in 18 children is different than adults." 19 That wasn't correct. 20 DR. CHARLES SMITH: Well, it -- it was in 21 light of -- of generalities about -- about patterns of 22 child abuse versus patterns of injury in an adult, but -- 23 MS. LINDA ROTHSTEIN: That wasn't what he 24 was asking you, Dr. Smith. 25 DR. CHARLES SMITH: But -- but that's how
1931 I responded, so -- so as I would interpret it, that's how 2 I was thinking. 3 MS. LINDA ROTHSTEIN: 4 "And can you -- is there some authority 5 to state that proposition? 6 Yes, I mean that statement is well- 7 regarded. It's the very basis of all 8 the textbooks which deal with patterns 9 of physical abuse of infants and 10 children, that's a fundamental 11 difference. 12 Q: What I'm suggesting to you, Doctor, 13 is possibly wounds by a knife, or 14 scissors, or by some other means isn't 15 unique to children, is it? 16 A: No, no, in fact it's more common in 17 the adult realm than in the pediatric 18 realm. Yes, that's right. 19 So I would suggest to you that a 20 forensic pathologist would be in a 21 better position to offer an opinion as 22 to the source of wounds than yourself, 23 who is an anatomical pathologist, 24 wouldn't that be fair to say? 25 No, no, no, no. The answer is yes and
1941 no. The answer is whether you're -- 2 you're in stab wounds. There are 3 pathologists practising in Canada who 4 have more experience with stab wounds 5 than I have had. I have had, perhaps, 6 more experience with stab wounds in the 7 young than others who have experience 8 in adults." 9 MS. LINDA ROTHSTEIN: Dr. Smith, was that 10 true? 11 DR. CHARLES SMITH: Well, my experience 12 is in -- is in the neonatal, and so once again, there, I 13 have erred in -- in being defensive. 14 MS. LINDA ROTHSTEIN: And your answers 15 are, therefore, misleading, sir, are they not? 16 DR. CHARLES SMITH: As I -- as I read 17 them now, yes, I see that. They were not meant to be, 18 but I see that -- that they were not helpful; I recognize 19 that. 20 MS. LINDA ROTHSTEIN: 21 "Well, can you just tell me then, what 22 pathologists have more experience with 23 stab wounds than you do? 24 In adults? 25 Yeah.
1951 Any of the people whose names I've 2 given you have done more than I have. 3 Have you got any textbooks that deal 4 with the source of wounds in this area, 5 whether they were caused by a knife, 6 scissors, animal? Have you got any 7 textbooks or have you ever relied on 8 anyone else to assist you in 9 interpreting wounds that you have to 10 examine in autopsy? 11 Yes." 12 And you go on to Mr. Knight and so on. 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: Dr. Knight. 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: Can you give us any 17 more assistance, Dr. Smith, as to why in 1998 you weren't 18 more candid with Mr. Rumble and the Court? 19 DR. CHARLES SMITH: Other than what I've 20 said, I can't add anything, no. 21 MS. LINDA ROTHSTEIN: You ought to have 22 told Mr. Rumble and the Court what you've told this 23 Commissioner -- that penetrating wounds are quite 24 uncommon in pediatric cases, correct? 25 DR. CHARLES SMITH: Yes.
1961 MS. LINDA ROTHSTEIN: That you had only 2 done one (1) or two (2) previously and that many years 3 before -- 4 DR. CHARLES SMITH: Yes. 5 MS. LINDA ROTHSTEIN: -- correct? 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: That you recognized 8 at the time of the post-mortem that you were 9 inexperienced with wound interpretation of this nature 10 and kind. 11 DR. CHARLES SMITH: Yes, yes. 12 MS. LINDA ROTHSTEIN: So help us again, 13 Dr. Smith, was it a worry that the Crown's case rested on 14 your shoulders? 15 DR. CHARLES SMITH: I -- I can't remember 16 -- remember that, no. I've -- I've explained to you to 17 the best of my recollection this -- you know, the 18 instructions that were given to me by the Crown and my 19 reaction to a -- to a vigorous defence. I don't think I 20 can add anything more. 21 MS. LINDA ROTHSTEIN: You certainly 22 agree, Dr. Smith, do you not, that when we're talking 23 about knife wounds, there are no distinct or peculiar 24 aspects to wound patterns in children? 25 DR. CHARLES SMITH: In -- in the very
1971 young, yes, there are. You -- you tend not to get 2 defensive wounds in the very young. 3 MS. LINDA ROTHSTEIN: But apart from 4 that? 5 DR. CHARLES SMITH: Yeah. 6 MS. LINDA ROTHSTEIN: An assaultive wound 7 would be no different, sir? 8 DR. CHARLES SMITH: At -- at this point I 9 -- I can't -- I can't offer anything more. There may be 10 -- there may be more differences than that, but -- but I 11 can't recall. 12 MS. LINDA ROTHSTEIN: Dr. Smith, you went 13 on to testify that you were actually more qualified to 14 assess the source of the wounds than an adult 15 pathologist, because, in quotes: 16 "The pattern of wounding is different 17 than adults." 18 19 (BRIEF PAUSE) 20 21 MS. LINDA ROTHSTEIN: Do you see that? 22 DR. CHARLES SMITH: Yes. 23 MS. LINDA ROTHSTEIN: Do you also see, 24 Dr. Smith, now, that it would have been very difficult 25 for any lawyer to easily refute you?
1981 (BRIEF PAUSE) 2 3 DR. CHARLES SMITH: That's not a 4 consideration that I had -- I -- I had given until you 5 mentioned it, and I can understand that consideration. 6 Yes, I accept it. 7 MS. LINDA ROTHSTEIN: Because actually, 8 Mr. Rumble's line of questions -- I don't -- 9 DR. CHARLES SMITH: Mm-hm. 10 MS. LINDA ROTHSTEIN: -- I haven't gone 11 through all of them, but that line of questions was fair? 12 DR. CHARLES SMITH: Yes, I recognize 13 that. 14 MS. LINDA ROTHSTEIN: It was relevant? 15 DR. CHARLES SMITH: Yes, and I was -- 16 MS. LINDA ROTHSTEIN: It's entirely 17 appropriate? 18 DR. CHARLES SMITH: And I was not 19 helpful. 20 MS. LINDA ROTHSTEIN: And this was a -- 21 occasion where when you were actually asked to give 22 authority for the proposition, you deflected that 23 question, did you not? 24 25 (BRIEF PAUSE)
1991 DR. CHARLES SMITH: Can you -- can you 2 give me that question again or a little differently? 3 MS. LINDA ROTHSTEIN: It's okay -- 4 DR. CHARLES SMITH: I'm sorry. 5 MS. LINDA ROTHSTEIN: -- we don't need 6 to -- 7 DR. CHARLES SMITH: Okay. 8 MS. LINDA ROTHSTEIN: -- belabour it. 9 Dr. Smith, I know you're not here to make 10 recommendations. You've been quite modest about that. 11 But can you share any insights with the 12 Commissioner about how one can prevent that from 13 happening in the future? 14 DR. CHARLES SMITH: I'm -- I -- I am 15 reluctant to -- to make recommendations here. I think 16 that my -- my mistakes here are very clear, and I believe 17 they have been dissected very thoroughly. 18 I made a suggestion about -- about 19 education, but it was only a suggestion. I would stand 20 by that suggestion, but I don't -- I don't want to make 21 recommendations, but -- but I do want to help you in 22 understanding where I erred and perhaps, as best as I can 23 help you, why so that you can make appropriate 24 recommendations. 25 MS. LINDA ROTHSTEIN: Dr. Smith, I'm
2001 going to ask you about ten (10) more minutes worth of 2 questions, and then I think probably we'll be in a 3 position to adjourn for the day, so. 4 Does that work for you? 5 DR. CHARLES SMITH: Keep going -- 6 MS. LINDA ROTHSTEIN: Can we go a little 7 bit longer? 8 DR. CHARLES SMITH: Yes, it's -- it's -- 9 yeah, there's more -- 10 MS. LINDA ROTHSTEIN: For the sake of 11 ending early? 12 DR. CHARLES SMITH: -- well no, there's 13 more than me in -- in this courtroom who need to keep 14 working as well, so if it's appropriate for everyone, 15 then yes, keep coming. 16 MS. LINDA ROTHSTEIN: Okay. I just want 17 to deal lastly with some aspects the delay in Athena's 18 Case. 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: You've been very 21 candid in acknowledging that that was something you feel 22 very badly about, and you recognize the significance of 23 the delays in getting your reports. 24 But again, I want to look at some of your 25 specific responses to the requests that you received from
2011 the police officer and Crown in that case to see if it 2 sheds any light for us on what becomes difficult about 3 those requests and why it was so hard to respond. 4 So I'm not going to review with you all 5 the circumstances -- 6 DR. CHARLES SMITH: Mm-hm. 7 MS. LINDA ROTHSTEIN: -- I think you've 8 had an opportunity surely, sir, at some stage, to look at 9 some of the judgments -- 10 DR. CHARLES SMITH: Yes. 11 MS. LINDA ROTHSTEIN: -- that were 12 rendered in that case. 13 DR. CHARLES SMITH: Yes. 14 MS. LINDA ROTHSTEIN: And you know that 15 you were criticized for the delay in getting your 16 original report? 17 DR. CHARLES SMITH: Yes. 18 MS. LINDA ROTHSTEIN: And you know that 19 there was then some additional criticism of the delay in 20 getting what was referred to in the judgments as an 21 "addendum". 22 Are you with me, Dr. Smith? 23 DR. CHARLES SMITH: Yes, I am. Yes. 24 MS. LINDA ROTHSTEIN: All right. 25 And it really arises out of this July
2021 20th, 1999 meeting that you had with Ms. Zaied and with 2 one (1) of the police officers to -- Detective Sergeant 3 Crone -- to familiarize themselves with -- them, with 4 your opinion. 5 DR. CHARLES SMITH: Yes. 6 MS. LINDA ROTHSTEIN: You remember that? 7 DR. CHARLES SMITH: Yes. 8 MS. LINDA ROTHSTEIN: Okay. And it 9 starts then at Tab 2, Volume II, they have the 10 chronology. 11 This is the affidavit of Matthew Crone, 12 who was the Detective Sergeant officer responsible at 13 this stage for this case, and it's 031376. And if you 14 would turn to slash 21, please, Dr. Smith, paragraph 71. 15 So this is following that July meeting: 16 "I made several requests to Dr. Smith 17 asking for the addendum to his post- 18 mortem report. I called Dr. Smith on 19 October 25 and he advised that he would 20 have an addendum ready for me that 21 evening. 22 I called him again on November 29th, 23 1999, and he advised me that he would 24 have an addendum ready for me by 25 tomorrow."
2031 And, Dr. Smith, you have no reason to 2 doubt the veracity of Detective Sergeant Crone's account 3 of his conversations with you, do you? 4 DR. CHARLES SMITH: No, I don't. No. 5 MS. LINDA ROTHSTEIN: And I take it you 6 have some memory of receiving those calls and promising 7 your addendum? 8 DR. CHARLES SMITH: I -- I don't have a 9 specific recollection of individual things, but I do 10 remember there was, over a period of time, verbal 11 communication between myself and Matt Crone and -- and 12 Larry Linton. But I -- at any given point, I can't tell 13 you what the communication was. 14 MS. LINDA ROTHSTEIN: And when they asked 15 you, Where's your report? and you said, I'm going to get 16 it to you the next day or shortly, did you intend to 17 honour that promise, sir? 18 DR. CHARLES SMITH: Well, when I -- when 19 I said it I did. 20 MS. LINDA ROTHSTEIN: But it had nothing 21 to do, am I right -- your reluctance, your slowness, 22 really had nothing to do with any principled objection 23 you had to providing it because of the disclosure rules. 24 That's not really true -- 25 DR. CHARLES SMITH: Yeah.
2041 MS. LINDA ROTHSTEIN: -- is it? 2 DR. CHARLES SMITH: In -- in the 3 beginning, that was -- the issue of an addendum report 4 was one (1) which I -- which I was reluctant to do; I 5 think, because of the reasons that you may know. 6 By this point in time -- at some point in 7 time, and I can't remember, it -- it was clear to me that 8 this was not just the earlier situation but that I needed 9 to do something. And then I failed to make it a priority 10 when I -- whatever happened that day between the 11 conversation and the -- and the end of the day, when it 12 would have meant pulling up the case and re-thinking what 13 was probably the most complex autopsy report that I had 14 written, I didn't do it. 15 And I -- and I acknowledge that failure. 16 It was a mistake and I shouldn't have made it. 17 MS. LINDA ROTHSTEIN: But -- sorry, just 18 to go back to the beginning of your answer when you were 19 talking about your reluctance. 20 Your reluctance was due to what, sir? 21 DR. CHARLES SMITH: The reluctance to do 22 it late on in the process. 23 It was just -- it was a -- it was a chore. 24 MS. LINDA ROTHSTEIN: It was a chore. 25 DR. CHARLES SMITH: It was just -- yeah,
2051 it was a -- it was a chore. And -- and in the midst of 2 the priorities, it -- it didn't get the priority that I 3 now recognize it should have gotten. 4 MS. LINDA ROTHSTEIN: And so if I hear 5 what you're saying, Dr. Smith, is you kept getting a 6 request, you kept thinking you would do it, you kept 7 putting it off? 8 DR. CHARLES SMITH: That's the best that 9 I can -- yeah. Once -- once the issue was made clear, 10 that there had to be something written, because early on, 11 I thought this was really a matter of discussion as 12 opposed to writing. 13 But certainly, at this point in time, when 14 there needed to be an explanatory note, I didn't give it 15 the priority that I should have, but rather I gave other 16 tasks -- other -- a greater priority. 17 MS. LINDA ROTHSTEIN: I just want to ask 18 you this, Dr. Smith. The statements that have been 19 attributed to you by, at least, some journalists that -- 20 DR. CHARLES SMITH: Mm-hm. 21 MS. LINDA ROTHSTEIN: -- you were very 22 conscious of what defence counsel do to expert witnesses 23 from time-to-time. Did that factor in, sir? 24 Were you reluctant to be put -- to have to 25 put something in writing because it was going to pin you
2061 down one (1) more time and create more fodder for 2 defence? Was that an aspect of it -- 3 DR. CHARLES SMITH: Not -- 4 MS. LINDA ROTHSTEIN: -- Dr. Smith, by 5 2001? 6 DR. CHARLES SMITH: No. No, actually 7 not. This was -- this was a situation wherein it was an 8 extremely complex report, and I was very confident of the 9 -- the scientific basis of it. 10 There -- there was much uncertainty as to 11 the interpretation of that, vis a vis timing of injuries, 12 but -- but that wasn't something that I felt at all 13 defensive about. 14 I recognized it was -- there was simply 15 uncertainty, and -- and I knew that I could not be 16 certain about that. 17 But it had no -- no sense, as you 18 suggested, that I was trying to hide anything or cover up 19 anything. This was really simply, in this case, a 20 lengthy chore, to consider that and to work through that 21 -- that issue. 22 MS. LINDA ROTHSTEIN: Then help us with 23 this please, Dr. Smith. Turn to Tab 31 of that same 24 volume. 25 These are Detective Larry Linton's notes,
2071 who you've mentioned. He's dealing with the issue that 2 has arisen some considerable time later in trying to 3 explain the delay that has transpired to the Court in the 4 Kporwodu matter. 5 And he records, at page 362, slash 362 -- 6 DR. CHARLES SMITH: Yes. 7 MS. LINDA ROTHSTEIN: -- that you told 8 him that the reason why this had taken you so long wasn't 9 for the reasons you've given. It was a burden; it was a 10 chore; you couldn't get to it; it was hard. 11 362? 12 DR. CHARLES SMITH: I have -- I have 13 slash 362, yes. 14 MS. LINDA ROTHSTEIN: Sorry, but our 15 Registrar didn't. 16 DR. CHARLES SMITH: Oh, I'm sorry. 17 MS. LINDA ROTHSTEIN: That you felt the 18 request was inappropriate, as it was asking for an 19 opinion, and that you felt that the cause of death was 20 the only opinion that should appear, and you wanted to 21 speak to the legal department before responding. 22 DR. CHARLES SMITH: Yes, that -- that was 23 -- that's correct, but that refers to a -- a much earlier 24 time period than -- than this, as I recall. 25 MS. LINDA ROTHSTEIN: But, Dr. Smith,
2081 you've just told me that -- 2 DR. CHARLES SMITH: Mm-hm. 3 MS. LINDA ROTHSTEIN: -- it was actually 4 just about the burden and the chore. 5 When -- when did it factor into this? I 6 can go back through it. 7 DR. CHARLES SMITH: Oh, no. To the best 8 of my recollection early on, I was asked for an 9 interpretation because my autopsy report was incomplete, 10 and -- and obviously, it's not an incomplete report as I 11 understood it. 12 And the interpretation is one (1) which -- 13 which we were discouraged from doing as -- as that would 14 suggest that that should be the part of every autopsy 15 report. 16 And, so this -- this had come up before, 17 and I had sought the counsel of the Office of the Chief 18 Coroner, who -- who essentially discouraged it. 19 And, so I felt that in the beginning, it 20 was appropriate for me to say, If there's uncertainty, 21 lets discuss it. And I remember making that offer to 22 meet with Rita Zaied again for that purpose to have 23 another go at a lengthy meeting. 24 So in the beginning, it was the -- the 25 process that -- that I thought was one (1) that I
2091 shouldn't engage in, in terms of writing interpretive 2 reports. 3 Later, when it became clear that this was 4 -- this was a different issue than I had earlier thought, 5 then it really -- then it became that -- that priority 6 that I've suggested to you. 7 But that was much later than -- than this 8 ear -- than these earlier events. 9 MS. LINDA ROTHSTEIN: Dr. Smith, did you 10 ever seek a legal opinion on this issue? 11 DR. CHARLES SMITH: Not -- not on this 12 one (1). I had discussed it on another case in the past. 13 MS. LINDA ROTHSTEIN: Ms. Walsh had asked 14 you the very same thing. 15 DR. CHARLES SMITH: Mm-hm. 16 MS. LINDA ROTHSTEIN: There was a new 17 material change to your opinion. Please document it. 18 You told me this morning -- 19 DR. CHARLES SMITH: Mm-hm. 20 MS. LINDA ROTHSTEIN: -- you understood 21 that to be perfectly proper and necessary. 22 DR. CHARLES SMITH: Yeah, and I agree 23 with that. No, the issue is the wri -- written 24 interpretation of autopsy reports, and this was something 25 which had come up on another case.
2101 And -- and I had sought the opinion of the 2 Office of the Chief Coroner and -- and the opinion that I 3 was given was one (1) which -- which I understood and was 4 acting on, which is to not engage in that unless it was - 5 - it was required. 6 MS. LINDA ROTHSTEIN: Dr. Smith, let's 7 look at Tab 6. That's the addendum that everyone was so 8 anxious to get from you, is it not -- 9 DR. CHARLES SMITH: Yes. 10 MS. LINDA ROTHSTEIN: -- 095 -- 11 DR. CHARLES SMITH: Yes. 12 MS. LINDA ROTHSTEIN: -- 686? 13 DR. CHARLES SMITH: Mm-hm, yes. 14 MS. LINDA ROTHSTEIN: One is actually 15 being quite generous to characterize that as one and a 16 half (1 1/2) pages in length, isn't one? 17 DR. CHARLES SMITH: Yes, yes. It -- it's 18 not the authoring of the letter. It's the re-examination 19 of the case which is the hours of work and -- and 20 thinking through all of those things. So the letter is 21 the easy part. It's the decision-making which was the 22 chore. 23 MS. LINDA ROTHSTEIN: Dr. Smith, I can 24 take you to Dr. -- to Detective Linton's notes. I can 25 show you it was about seeking this addendum; this work
2111 product that you ultimately produced. 2 DR. CHARLES SMITH: Yes. 3 MS. LINDA ROTHSTEIN: You surely didn't 4 have any disclosure objections to producing this in 2000, 5 did you, sir? 6 DR. CHARLES SMITH: No, I didn't, no. 7 MS. LINDA ROTHSTEIN: Dr. Smith, we've 8 covered a lot of territory in the last two (2) days and 9 change, and I want to be certain that before I complete 10 my examination, you have a moment to reflect on whether 11 there is anything else that you feel you haven't had a 12 sufficient opportunity to answer, explain, qualify. 13 14 (BRIEF PAUSE) 15 16 DR. CHARLES SMITH: At this point in time 17 I -- I can't think of anything, but thank you for that 18 opportunity. 19 MS. LINDA ROTHSTEIN: Okay. 20 Commissioner, I'm proposing that we adjourn for the day. 21 COMMISSIONER STEPHEN GOUDGE: We will 22 come back, then, tomorrow morning at 9:30 and begin with 23 you, Mr. Lockyer. 24 25 (WITNESS RETIRES)
2121 --- Upon adjourning at 3:20 p.m. 2 3 4 5 6 Certified Correct, 7 8 9 _________________ 10 Rolanda Lokey 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25