1 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 January 31st, 2008 25

2
  1                        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          (np) )
 20  Grant Hoole               )
 21   
 22  William Carter            )     Hospital for Sick Children
 23  Barbara Walker-Renshaw(np) )
 24  Kate Crawford             )
 25

3
  1                   APPEARANCES (CONT'D)
  2  Paul Cavalluzzo      (np) )     Ontario Crown Attorneys'
  3  Veena Verma          (np) )     Association
  4  Mara Greene          (np) )     Criminal Lawyers'
  5  Breese Davies              )    Association
  6  Joseph Di Luca       (np) )
  7  Jeffery Manishen      (np) )
  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             )     the Wrongly Convicted
 18  Elizabeth Widner      (np) )
 19  Paul Copeland         (np) )
 20  
 21  Jackie Esmonde             )     Aboriginal Legal Services 
 22  Kimberly Murray      (np) )     of Toronto and Nishnawbe
 23  Sheila Cuthbertson    (np) )      Aski-Nation
 24  Julian Falconer      (np) )
 25

4
  1                 APPEARANCES (cont'd)
  2  Suzan Fraser              )     Defence for Children 
  3                             )     International - Canada
  4  
  5  William Manuel            )     Ministry of the Attorney
  6  Heather Mackay     (np)   )     General for Ontario
  7  Erin Rizok                 )
  8  Kim Twohig          (np)   )
  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

1 TABLE OF CONTENTS Page No. 2 3 CHARLES RANDALL SMITH, Resumed 4 5 Cross-Examination by Mr. James Lockyer 6 6 Cross-Examination by Ms. Carolyn Silver 141 7 Cross-Examination by Mr. Peter Wardle 189 8 9 10 11 Certificate of transcript 289 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon commencing at 9:30 a.m. 2 3 THE REGISTRAR: All rise. Please be 4 seated. 5 COMMISSIONER STEPHEN GOUDGE: Good 6 morning. 7 Mr. Lockyer...? 8 9 CHARLES RANDALL SMITH, Resumed 10 11 CROSS-EXAMINATION BY MR. JAMES LOCKYER: 12 MR. JAMES LOCKYER: I've got a sense 13 here, sir, as we've been watching you over the last three 14 (3) days that you -- you're not the Dr. Smith that jurors 15 and judges saw for so many years, is that right, sir? 16 DR. CHARLES SMITH: I don't think I can 17 comment on that. 18 MR. JAMES LOCKYER: You're not the sort 19 of self assured person with confidence in his opinions 20 that so many jurors and so many judges saw, right? 21 DR. CHARLES SMITH: I'm -- I'm not sure I 22 could necessarily agree with that. I have been confident 23 in my opinions in the past; I have been confident in 24 opinions I've given here. I acknowledge that I've been 25 overconfident in the past and I -- and think that may be

1 different than this situation. 2 MR. JAMES LOCKYER: Mm-hm. One (1) of 3 the motivations that you have expressed for your desire 4 to get into the field of looking at suspicious child 5 deaths in the first place was you saw as what you called, 6 I think, an extraordinary opportunity to provide 7 information to the families. 8 Is that right? 9 DR. CHARLES SMITH: Yes. 10 MR. JAMES LOCKYER: Yes. And I'm going 11 to suggest to you, sir, that -- that motivation is a bit 12 thick to put forward when you think about the 13 consequences of -- of what you did. If you just look at 14 the -- the twenty (20) cases that the external 15 pathologist took issue -- or take issue with you, because 16 those cases involve, and I've tried to tart it up, 17 thirteen (13) mothers. 18 Did you know that? 19 DR. CHARLES SMITH: No, I've not -- I've 20 not done such mathematics. 21 MR. JAMES LOCKYER: Seven (7) fathers, 22 two (2) caregivers, a stepmother, and an uncle which, 23 when you add all that up, sir, and think it through, it 24 doesn't seem to reflect you taking advantage of an 25 opportunity to provide information to families. It's

1 more to, you took an opportunity to provide opinions that 2 implicated family members in the deaths of their 3 children. 4 Isn't that a better way of putting it? 5 DR. CHARLES SMITH: No, sir. No, sir. 6 My approach in every case was to come up with the best 7 information I could based on my knowledge and 8 understanding. It was not to come up with information as 9 you've suggested, to implicate people. It was to come up 10 with the right answer. 11 And I believe I've pointed out, even as 12 recently as yesterday, some, but not all of the evidence 13 that shows that in fact there were numerous occasions 14 when what I came up with was information which in fact 15 removed a mantle of suspicion from a family member, and 16 so I would disagree with your statement respectfully, 17 sir. 18 MR. JAMES LOCKYER: So it's purely 19 coincidental that your motivation led to you implicating 20 a large number of family members in the deaths of their 21 children, by rendering opinions that we can now see are 22 wrong? 23 DR. CHARLES SMITH: I -- I'm sorry, I -- 24 I'm not quite sure I understand your question. 25 MR. JAMES LOCKYER: Let -- let me ask you

1 this, sir -- 2 DR. CHARLES SMITH: You -- you -- okay, 3 yeah, thank you. 4 MR. JAMES LOCKYER: Mm-hm. Did you 5 consider the potential consequences of your decisions as 6 you went along, sir? 7 DR. CHARLES SMITH: I knew that at times 8 my -- my preliminary decisions, or indeed my final 9 decisions on a case would have implications for those 10 investigating them. I knew that -- that if I was 11 suspicious then, there may well be an investigation. And 12 I knew that if there -- if I was not suspicious, then 13 there may not be an investigation when -- when there 14 should have been one. 15 So I understood the implications, but I 16 also understood that medicine is not a -- a perfect 17 diagnostic science, or at least diagnostic pathology is 18 not a precise diagnostic science, it's an interpretive 19 one. 20 MR. JAMES LOCKYER: Certainly not one 21 administered by you, Dr. Smith, right; it's not a perfect 22 science? 23 DR. CHARLES SMITH: It is not a perfect 24 science when performed by any anatomic pathologist. 25 MR. JAMES LOCKYER: Did you think, sir,

1 as you rendered one (1) opinion after another, of the 2 extraordinary shame and public humiliation a parent was 3 going to have to experience? 4 DR. CHARLES SMITH: I certainly knew that 5 if I gave an opinion that communicated suspicion, that 6 there would be implications for that. I also understood 7 that -- that -- it was my obligation to communicate 8 suspicion if I had suspicion. And it was my obligation 9 to remove suspicion that others may have, or -- or give 10 them reason to consider removing suspicion if I had no 11 suspicions. 12 So I understood that my -- my preliminary 13 or final opinions could make life more difficult for a 14 person. And I also recognize that it could, in fact, 15 remove from them a mantle of suspicion. 16 MR. JAMES LOCKYER: Your primary 17 obligation was to act within -- in a way that you got it 18 right? 19 DR. CHARLES SMITH: That's correct. 20 MR. JAMES LOCKYER: Isn't that your 21 primary obligation? 22 DR. CHARLES SMITH: That's absolutely 23 correct. 24 MR. JAMES LOCKYER: I mean, did you think 25 about -- lets take Valin's case, sir -- did you think

1 about the consequences to the uncle caused by an opinion 2 that this was a -- not just a strangulation, but a 3 strangulation accompanied by sodomy? 4 DR. CHARLES SMITH: Yes, I understood 5 that. Yes. 6 MR. JAMES LOCKYER: That a man was going 7 to spend years and years, almost thirteen (13) years, in 8 protective custody because of your opinion? 9 DR. CHARLES SMITH: Well, I -- I don't 10 want to, you know, argue with you. I certainly did not 11 know what the implications of a jury decision would 12 necessarily be, but when I gave that opinion, it was an 13 honestly held opinion. 14 And at the time I testified, I believed 15 that my opinion was in line with the opinion of others, 16 but I certainly recognized that it was a very serious 17 situation. 18 MR. JAMES LOCKYER: What you were putting 19 a parent through, as you testified in front of a parent 20 who's lost a child, pulling out photographs from 21 autopsies, and that kind of thing, did you think about 22 that when you were on the witness stand, sir? 23 DR. CHARLES SMITH: I was very -- 24 MR. JAMES LOCKYER: Giving a -- please. 25 Giving --

1 DR. CHARLES SMITH: No, I'm sorry. 2 MR. JAMES LOCKYER: -- giving opinions 3 that you now acknowledge you really had no authority to 4 give in the first place? 5 DR. CHARLES SMITH: You've -- you've 6 asked about the use of photographs. I'm very sensitive 7 to that. 8 MR. JAMES LOCKYER: Mm-hm. 9 DR. CHARLES SMITH: And -- and so the 10 decision on the use of photographs, and how they were 11 used is one which would be determined not by me, but by 12 those in the courtroom. So that's -- 13 MR. JAMES LOCKYER: But you were more 14 than happy to have them shown to you and comment on them, 15 right? 16 DR. CHARLES SMITH: I -- I think that 17 question is somewhat misleading, Mr. Lockyer. I can't 18 say that I was ever happy to do anything in -- in a 19 Court. If -- if the Court felt that for the judge or the 20 jury that information was necessary, I was certainly 21 willing to participate in that, but I don't think I could 22 ever use the word "happy" to describe anything -- any 23 emotion that I -- that I felt in Court. 24 MR. JAMES LOCKYER: But more than 25 prepared in -- on numerous occasions to engage in what

1 you've acknowledged already as inflammatory language, 2 that kind of thing? 3 DR. CHARLES SMITH: I -- I realize, with 4 the respect of hindsight, that I used language that was 5 not appropriate for the environment for a variety of 6 reasons -- sometimes too casual and sometimes too 7 dogmatic. I can't think that I ever knowingly used 8 language that I shouldn't have used, but I recognize with 9 hindsight I made mistakes. 10 MR. JAMES LOCKYER: "Casual" - your word 11 - sir, is quite a revealing word for these circumstances, 12 don't you think? That you could be testifying against a 13 mother, or a father and be casual -- 14 DR. CHARLES SMITH: No, I wasn't -- 15 MR. JAMES LOCKYER: -- in the way you 16 approached your evidence? 17 DR. CHARLES SMITH: -- I'm sorry, I 18 shouldn't have -- no. Where I'm referring to casual 19 would be some of the comments that have been brought out 20 by the reviewers about statements I made, such as if I 21 were a betting man -- 22 MR. JAMES LOCKYER: Mm-hm. 23 DR. CHARLES SMITH: -- this would be my - 24 - my level of probability. So I was expecting -- I was 25 expressing information in answer to a question, but my

1 wording on the answer at times was casual, but my -- my 2 attempt to -- but the information I was communicating was 3 not casual. 4 MR. JAMES LOCKYER: How's this? You 5 weren't well attuned to the sensitivities of the mother 6 or father, or uncle, or caregiver on trial sometimes. 7 Is that, sir -- would you take that? 8 9 (BRIEF PAUSE) 10 11 DR. CHARLES SMITH: To a degree. I have 12 never been in their position and so I could never 13 experience the difficulty that they were in. So I could 14 not pretend to you that I knew their position. 15 Nevertheless, I understood as best I think 16 I could understand to an outsider the way that they -- 17 that they may be feeling or responding in Court. 18 MR. JAMES LOCKYER: And now, Dr. Smith, 19 we, and particularly the individuals concerned, have to - 20 - we have to try and pick up the pieces and address 21 miscarriages of justice that have arisen consequent on 22 your work. 23 You understand that, do you? 24 DR. CHARLES SMITH: Yes. Yes. I -- I 25 believe that I have recognized within this room my role

1 in that and -- and I acknowledge that. I -- I hope that 2 the apologies that I have given were correctly understood 3 to be sincere. 4 MR. JAMES LOCKYER: But did you ever 5 consider before you came here, Dr. Smith, of trying to 6 get ahead of the game yourself and re-examine some of 7 your evidence in previous cases to see whether you were 8 the cause of a miscarriage of justice, potentially, or do 9 you just come here and say, maybe I did, and if I did, 10 I'm sorry? 11 DR. CHARLES SMITH: The -- the second 12 half of your question connotes an attitude which I did 13 not have. If you can be more specific about the first 14 half of your question perhaps I could respond to that. 15 MR. JAMES LOCKYER: Is there anything 16 you've ever done, sir, or thought about doing, to try and 17 address miscarriages of justice that have arisen out of 18 your work? I mean if you cause something, sometimes you 19 might say to yourself, maybe I should try and do 20 something to correct the wrong. 21 DR. CHARLES SMITH: Can you -- can give 22 me spec -- sort of a specific instance as -- as to that? 23 MR. JAMES LOCKYER: No, I'm just 24 wondering if you thought it through, sir, and thought of 25 anything you might do, short of coming here years after

1 the event -- 2 DR. CHARLES SMITH: Mm-hm. 3 MR. JAMES LOCKYER: -- and -- or in some 4 cases -- 5 DR. CHARLES SMITH: Mm-hm. 6 MR. JAMES LOCKYER: -- in the midst of 7 the event and apologising? 8 DR. CHARLES SMITH: I -- I think I would 9 respond to that in two (2) ways. First of all, some of 10 these miscarriages of justice or -- or look-back opinions 11 deal with issues that I recognised were not clear cut, 12 and -- and in those situations, over the years, my 13 approach has been in -- in cases where there are 14 difficulties, or controversies, or uncertainties that I 15 could help -- help bring light to. 16 In fact, my response has been to try and 17 improve the science in the area, so -- so for many years 18 my response to uncertainties or difficulties such as 19 Shaken Baby Syndrome was to be engaged with others in 20 research to determine whether or not it's possible to 21 come up with better diagnostic criteria. 22 So -- so the first half of that, my 23 response, I believe, was more than appropriate, and I 24 believe it was very helpful; it's to say let's improve 25 the state of knowledge so that we can come up with better

1 diagnostic criteria. The latter half would be only in 2 recent years when the -- the spotlight has been focussed 3 on some of the issues. 4 And -- and in fact, potential miscarriages 5 of justice have come along, that it's through the review 6 of the Office of the Chief Coroner and subsequently 7 through the other reviews that I have come to appreciate 8 my role or my understanding in those. 9 And as I indicated some -- some time ago 10 earlier this week, as I was given information and could 11 reconsider it, I did. But I believe I made it very clear 12 that by the time that process had occurred this Inquiry 13 was already underway, and so I believe that by not making 14 any kind of public statement earlier, I was doing what 15 was right. 16 MR. JAMES LOCKYER: Well, I'm not sure 17 that really we need you reviewing the cases, sir. I 18 mean, you're discredited individual, discredited expert, 19 so I'm not sure that your opinions are of any particular 20 use to us, frankly, at this point in time. But what I'm 21 interested in, sir, is whether you made -- did anything 22 proactive to try and help solve any of the miscarriages 23 of justice that have taken place as a consequence of your 24 opinions. 25 Have you ever spoken to your counsel about

1 it, to Commission counsel, what you might do to assist; 2 anything like that, or not? 3 DR. CHARLES SMITH: Your -- now help me 4 here -- your question is: Within the context of this 5 Inquiry what have I done? 6 MR. JAMES LOCKYER: I -- I'm talking 7 about within the context of individuals, sir, who have 8 incurred or -- 9 DR. CHARLES SMITH: Mm-hm. 10 MR. JAMES LOCKYER: -- suffered these 11 miscarriages of justice, have you thought of doing 12 anything proactive about it? If you haven't, you 13 haven't, I'm just asking you a question. 14 DR. CHARLES SMITH: Apart from discussing 15 these cases with my counsel -- 16 MR. JAMES LOCKYER: Mm-hm. 17 DR. CHARLES SMITH: -- no, that -- 18 MR. JAMES LOCKYER: All right. 19 DR. CHARLES SMITH: -- that is it. 20 MR. JAMES LOCKYER: See -- can you see, 21 sir, how the apologies that you've made here to at least 22 arguably two (2) of the individuals anyway, who have 23 suffered a miscarriage of justice, ring a little hollow 24 in those circumstances; to just come here years and years 25 later and not even look at them, but just sort of look

1 across the room and say, I'm sorry? 2 DR. CHARLES SMITH: That certainly was 3 not my intention in giving the -- the apologies. I don't 4 know that I would be able to identify accurately the 5 people to whom I, as you suggest, that I -- I should lock 6 eyes with and apologize to, because I'm not sure of their 7 identity. 8 But -- but I -- I do want to make it -- to 9 make it very clear, that my apologies were sincere. 10 MR. JAMES LOCKYER: We're going to come 11 back to them, sir, but just to -- before I do that I just 12 want to talk about some -- some general issues. And one 13 (1) thing I think My Friend, Commission Counsel, brought 14 out of you was, you made the claim that you found 15 appearances in Court to be the most unpleasant side of 16 your career. 17 Do you remember saying something like that 18 to Ms. Rothstein? 19 DR. CHARLES SMITH: Yeah, it was -- 20 MR. JAMES LOCKYER: Back on -- 21 DR. CHARLES SMITH: -- it -- 22 MR. JAMES LOCKYER: -- Monday? 23 DR. CHARLES SMITH: Yeah, I -- I -- 24 MR. JAMES LOCKYER: Yeah. 25 DR. CHARLES SMITH: -- I think I would

1 have used such language, yes. 2 MR. JAMES LOCKYER: She -- she seemed to 3 express some incredulity at that response, sir, if I 4 interpreted her reaction to what you said accurately. 5 And I'm going to suggest to you, Mr. Smith, quite simply, 6 that's -- that's, perhaps it might be best described as a 7 whopper. 8 You loved testifying in Court, didn't you, 9 sir? 10 DR. CHARLES SMITH: No, I hated it. 11 MR. JAMES LOCKYER: You enjoyed every 12 minute of it? 13 DR. CHARLES SMITH: No, I hated it. 14 MR. JAMES LOCKYER: Mm-hm. 15 DR. CHARLES SMITH: I -- my stress levels 16 were extremely high. I do not enjoy the adversarial 17 environment one bit. It's not the kind of environment 18 that I trained in and work in on an everyday basis. 19 So no, I did not love it at all. There 20 were times when I appreciated the opportunity of helping 21 a jury or a judge understand complex medical issues, but 22 that would not be enjoyment. It was not happiness. It's 23 part of simply the reward of going in and -- and trying 24 to do a good job and coming away with -- with a sense 25 that -- that I felt that I had communicated in such a way

1 that the listener understood complex medical or technical 2 information. 3 But I -- I strongly resist the suggestion 4 that you've made. 5 MR. JAMES LOCKYER: Well, we -- we've had 6 a chance, sir, to read a lot of your transcripts of your 7 testimony in different cases, and certainly as one reads 8 them one -- you don't get a sense of Dr. Smith being the 9 reluctant witness, do you? 10 DR. CHARLES SMITH: That's your 11 interpretation reading them. My interpretation is based 12 on the recollection of my experiences. 13 MR. JAMES LOCKYER: In fact, Dr. Smith, 14 I'm going to suggest to you just to read your testimony. 15 I'm going to go to a couple of passages shortly. 16 It can be seen how you enjoyed the lime 17 light when you were testifying, isn't that right? 18 DR. CHARLES SMITH: I can't -- I can't 19 remember that, no, sir. 20 MR. JAMES LOCKYER: You can't remember 21 that. You enjoyed impressing judges and jurors, isn't 22 that right, sir, with your, quote, "expertise," unquote? 23 DR. CHARLES SMITH: That's an expression 24 that I wouldn't have used. I think I stated a moment ago 25 my -- my view on that experience is that there is a sense

1 of reward when you think you've done a good job in what 2 can be a difficult circumstance. 3 MR. JAMES LOCKYER: The police used to 4 frequently eat out of your hand, sir. They just loved 5 the opinions that you came forward with and you knew 6 that. 7 DR. CHARLES SMITH: No, sir. No, sir. I 8 think that's strong language and I would disagree with 9 that. 10 MR. JAMES LOCKYER: The Crowns, as well, 11 sir. In fact, you told us that the Crowns encouraged you 12 sometimes to -- to be an advocate. 13 DR. CHARLES SMITH: Well, I think that's 14 different than -- than your suggestion of anyone eating 15 out of my hand, because that was never my experience. 16 But I certainly -- 17 MR. JAMES LOCKYER: That was the police. 18 I've moved to Crowns. 19 DR. CHARLES SMITH: Oh, I'm sorry. I've 20 certainly felt pressure by the Crowns at times, or 21 understood or interpreted what they said to want me to -- 22 to further their case. 23 MR. JAMES LOCKYER: And you did it, too, 24 didn't you? 25 DR. CHARLES SMITH: Retrospectively, I

1 see, and I've acknowledged that, at times, I was more 2 adversarial than I should have been, and I -- and I 3 acknowledge that. 4 And I am sorry for that. 5 MR. JAMES LOCKYER: Was the Crown in 6 Amber's case one (1) of those Crowns, sir? 7 8 (BRIEF PAUSE) 9 10 MR. JAMES LOCKYER: Or was that just you? 11 DR. CHARLES SMITH: Being adversarial -- 12 MR. JAMES LOCKYER: Mm-hm. 13 DR. CHARLES SMITH: -- or defensive? Do 14 you mean in -- in -- 15 MR. JAMES LOCKYER: Was the Crown in 16 Amber's case -- 17 DR. CHARLES SMITH: -- in -- 18 MR. JAMES LOCKYER: -- pushing you along? 19 You know, give it to them, Dr. Smith? 20 DR. CHARLES SMITH: Well, no. No. I -- 21 I think -- 22 MR. JAMES LOCKYER: Give us your best. 23 DR. CHARLES SMITH: No. No. I think we 24 need to be very careful here. My communication with the 25 Crown in Amber's case was -- was during -- during the

1 time that the Crown's case was being presented, and I 2 don't ever sense that. 3 MR. JAMES LOCKYER: Well, which cases do 4 you have in mind when the Crown was pushing your -- 5 pushing you along, sir? 6 DR. CHARLES SMITH: Well, I certainly 7 felt it in -- in the Reynolds -- I -- 8 MR. JAMES LOCKYER: In Sharon's case? 9 DR. CHARLES SMITH: -- I'm sorry. I -- 10 I'm -- please -- please forgive me, sir. I don't know 11 that I should have mentioned that surname. 12 Yes, in Sharon's case, I can. There are 13 other cases that I testified in that I can think of 14 better, at preliminaries or wherever, where I certainly 15 felt pressured by the -- by the Crown. 16 MR. JAMES LOCKYER: Is that in some of 17 the twenty (20) year cases, sir? 18 DR. CHARLES SMITH: The first one (1) 19 that comes to mind is, no. No, that has nothing to do 20 with these. 21 MR. JAMES LOCKYER: But it was a fairly 22 frequent occurrence, is that right? 23 DR. CHARLES SMITH: I -- I think that 24 would be unfair. There were times when I felt that 25 pressure, but -- but I've dealt with -- with many

1 Crowns, and I think it would be misleading to suggest it 2 was frequent. 3 MR. JAMES LOCKYER: Did any Crown, sir, 4 ever warn you to stop playing advocate? 5 DR. CHARLES SMITH: I -- no, that -- 6 MR. JAMES LOCKYER: Or to temper your 7 opinions? 8 DR. CHARLES SMITH: I don't -- I don't 9 ever -- ever recall that. 10 MR. JAMES LOCKYER: Never. Not once? 11 DR. CHARLES SMITH: No. No, I don't ever 12 recall that. No. 13 MR. JAMES LOCKYER: So you must have felt 14 you had sort of a licence, so to speak, to take things as 15 far as you wanted and as far as you possibly could. 16 DR. CHARLES SMITH: That's absolutely 17 untrue. That is absolutely untrue. 18 MR. JAMES LOCKYER: But wouldn't that 19 explain all these cases, sir, where you went way over the 20 top? 21 DR. CHARLES SMITH: No. No. I believe 22 I've given -- I've given reasons in these cases, as I've 23 been able to look back on my testimony. 24 MR. JAMES LOCKYER: Let me read you what 25 was said, sir, once by a Court in a -- another country.

1 PFP303865. And it's an unnumbered document, Mr. 2 Commissioner, but I think we've identified, for the 3 Registrar, the page we're looking for. It's the decision 4 of the Court of Appeal in the UK in Judith Ward's case. 5 You'll find it -- it's Commission Counsel documents, 6 Volume I. Sorry, our documents, should I say. Volume VI 7 at Tab 18. 8 But it might be easier to -- did you find 9 the page? Did the -- was the page identified for you, 10 sir? Because it's not page-numbered unfortunately. I 11 know what page it is, but I'm not sure it helps. It's 12 page 67, but I don't think it's going to get you very 13 far, is it? 14 Perhaps I'll just read what was said, sir. 15 This is what the Court of Appeal said in the UK in a case 16 in which forensic scientists went way off base. All 17 right. 18 The Court said: 19 "For the future, it is important to 20 consider why scientists acted as they 21 did. For lawyers, jurors, and judges, 22 a forensic scientist conjures up the 23 image of a man in a white coat working 24 in a laboratory, approaching his task 25 with cold neutrality and dedicated only

1 to the pursuit of scientific truth. 2 It's a sombre thought that the reality 3 is sometimes different. Forensic 4 scientists can become partisan. The 5 very fact the police seek their 6 assistance may create a relationship 7 between the police and the forensic 8 scientist, and the adversarial 9 character of the proceedings tend to 10 promote this process. Forensic 11 scientists employed by government may 12 come to see their function as helping 13 the police, they may lose their 14 objectivity, and that is what must 15 happened in this case." 16 Those words, sir, fit your circumstance 17 really very well, don't they? You don't -- 18 DR. CHARLES SMITH: I don't believe they 19 do. 20 MR. JAMES LOCKYER: You don't think so? 21 DR. CHARLES SMITH: No, we can dissect 22 those statements line by line and consider them line by 23 line. 24 MR. JAMES LOCKYER: You don't think you 25 were presenting yourself as the man in the white coat

1 approaching your task with cold neutrality? You don't 2 think you were trying to get jurors to buy that from you? 3 DR. CHARLES SMITH: Well, I -- I think my 4 -- my approach, as I have indicated on every case that 5 was presented to me was -- was a uniform approach and I - 6 - and I believe that I approached a case with an open 7 mind. 8 I acknowledge in some instances here that 9 my medical decision making, as medical decision making 10 can occur, narrowed down possibilities early on in the 11 process. So I acknowledge decision making that -- that is 12 faulty, but that -- but I believe, as I -- as I began 13 each case it was with the position that I was to find the 14 right answer and -- and the best information. 15 So I would agree, if -- if you're 16 suggesting to me, was -- was I impartial or neutral, I 17 would say I was -- I believe I was -- I was impartial 18 and neutral. 19 MR. JAMES LOCKYER: I -- I was actually 20 suggesting -- 21 DR. CHARLES SMITH: Mm-hm. 22 MR. JAMES LOCKYER: -- to you, sir, that 23 your -- you were certainly always trying to conjure up 24 the image of a man in white coat approaching his task 25 with cold neutrality.

1 DR. CHARLES SMITH: I believe that's -- 2 that's wrong. 3 MR. JAMES LOCKYER: Mm-hm. And that 4 forensic scientists, as the Court -- 5 DR. CHARLES SMITH: Well, no, let -- be - 6 - because here, that is to conjure up, which suggests to 7 me that's deceitful -- 8 MR. JAMES LOCKYER: Mm-hm. 9 DR. CHARLES SMITH: -- and -- and I -- I 10 do not believe I ever engaged in that. 11 MR. JAMES LOCKYER: You don't? 12 DR. CHARLES SMITH: How a Judge or jury 13 would view my work is how they would view my work, but I 14 do not pretend that I was trying to deceive them in any 15 way about who I was. 16 MR. JAMES LOCKYER: You don't even think 17 some of your -- just -- just to take a microcosm of -- of 18 what's happened in the last three (3) days, you don't 19 even think what you said about your dealings with Justice 20 Dunn were deceitful? 21 DR. CHARLES SMITH: I recognise they were 22 wrong, but -- but as I indicated, if you had asked me at 23 the end of the conversation what I thought that 24 conversation or what the conclusions of it were, I would 25 have given you the information that I -- that I gave that

1 I acknowledge now. 2 As I've dissected those conversations as 3 best I can, that was an incorrect interpretation and an 4 incorrect history, but it was something that I believed 5 to be true. 6 MR. JAMES LOCKYER: I want to take you to 7 a couple of passages where, I'm going to suggest to you, 8 they reflect quite well, perhaps, how much you were 9 enjoying your role as the courtroom expert, sir. The 10 first time was at a preliminary hearing in Dustin's case, 11 PFP048194, Commission counsel documents, Volume I, Tab 12 12. 13 DR. CHARLES SMITH: Commission -- oh, I 14 might have it here. Commission counsel, Volume I, Tab 15 12? 16 MR. JAMES LOCKYER: Mm-hm. 17 DR. CHARLES SMITH: Is there somewhere 18 specific you can -- 19 MR. JAMES LOCKYER: Yes, at page 18, sir, 20 at the bottom of 18. 21 DR. CHARLES SMITH: Okay, I see that, 22 yes. 23 MR. JAMES LOCKYER: This was a case where 24 you were claiming Shaken Baby Syndrome, sir, against 25 Dustin's father, all right? Or that was the cause of

1 Dustin's death -- 2 DR. CHARLES SMITH: Mm-hm. 3 MR. JAMES LOCKYER: -- which inevitably 4 lead to his father being charged. And at the bottom of 5 the page, you're asked a pretty simple question by the 6 Crown: 7 "How did the optic nerve of -- of 8 Dustin affect your conclusion? In 9 other words, how does that help you 10 decide what happened, and rule out 11 possibilities?" 12 And then, sir, you -- you give us -- 13 DR. CHARLES SMITH: Yes, I see that. I'm 14 sorry. Yes. Mm-hm. Mm-hm. 15 MR. JAMES LOCKYER: -- you gave the Court 16 a -- a two (2) page answer that truly didn't have a whole 17 lot to do with the question, sir. 18 You began by saying: 19 "Okay, let me talk if I can. If you 20 don't understand, you can jump in and 21 stop me, if I'm not using your time 22 right. Let me talk about how we can 23 integrate this information. There's 24 two (2) questions we need to ask, and 25 these are really the two (2) questions

1 which beset any investigation wherein 2 you're looking at the possibility of a 3 lethal injury in an infant or child. 4 Are Number 1. Does the autopsy tell us 5 whether it's an injury, whether it's 6 accidental or non-accident and what can 7 we say about the event from the 8 autopsy. Number 2. Can we make any 9 statements whatsoever about when the 10 injury or injuries may have occurred? 11 So those are the two (2) questions I'll 12 walk you through right now with you." 13 You see there, how you sort of -- you 14 basically ignored the question, sir, and you're just 15 taking control, and clearly enjoying yourself, don't you 16 think -- 17 DR. CHARLES SMITH: Well, you -- 18 MR. JAMES LOCKYER: -- as you read that? 19 DR. CHARLES SMITH: -- you've -- you've 20 really made three (3) observations there. First of all, 21 I recognize that my answer did -- did not succinctly 22 respond to the -- to the question. I recognize that. 23 The -- the second thing is -- is you have 24 come to understand in reading through much of my 25 testimony, or as -- or as I have -- I -- I, not

1 infrequently, gave long explanations. 2 MR. JAMES LOCKYER: Well, I haven't read 3 you this whole passage, sir. 4 DR. CHARLES SMITH: No, no. No, and -- 5 and I'm not expecting you to, but the -- the third thing 6 is that I -- in -- in this case, and in other cases, 7 tried to give background information that explained the 8 reasoning, as opposed to simply answer the question. 9 And -- and that is -- the response of 10 that, by the time that I had done it in this case, in the 11 Dustin case, that is a style of answering questions in 12 Court which I had done on a number of occasions. 13 It had never been pointed out to me that 14 that was wrong; that in trying to be helpful, that I may 15 not have been helpful. But I resist your notion that I - 16 - that I enjoyed it. 17 I believed it was my role to educate the 18 judge or jury. I believed I was doing -- I was doing 19 what was expected of me. 20 I recognize now that it may have been 21 unhelpful in -- in that I certainly recognize my answers 22 were not short and concise. 23 But I resist your notion of the word 24 "enjoy". 25 MR. JAMES LOCKYER: Do you think someone

1 watching you, sir, in Court, giving answers like this, 2 might infer that you were enjoying impressing people? 3 DR. CHARLES SMITH: I can't -- I can't 4 speculate on what other -- 5 MR. JAMES LOCKYER: Mm-hm. 6 DR. CHARLES SMITH: -- people might 7 interpret about -- about my answers. 8 MR. JAMES LOCKYER: Go to another case. 9 Paolo's case. This is PFP017346. 10 DR. CHARLES SMITH: Can you direct me 11 to -- 12 MR. JAMES LOCKYER: Volume -- your 13 documents, Volume XVII; Tab 6, sir, at page 175. 14 DR. CHARLES SMITH: My document -- I'm 15 sorry. Volume XVII, did you say? 16 MR. JAMES LOCKYER: Yes. Tab 6. 17 18 (BRIEF PAUSE) 19 20 MR. JAMES LOCKYER: Any document I refer 21 to will be -- 22 COMMISSIONER STEPHEN GOUDGE: Okay. 23 24 CONTINUED BY MR. JAMES LOCKYER: 25 MR. JAMES LOCKYER: -- on the table -- on

1 the table to your right, sir. 2 DR. CHARLES SMITH: Okay. 3 MS. JANE LANGFORD: He doesn't have a 4 Volume XVII. 5 DR. CHARLES SMITH: I -- I -- no. Oh, 6 there is a -- a bind -- thank you. 7 COMMISSIONER STEPHEN GOUDGE: The Paolo 8 documents. 9 MS. JANE LANGFORD: Because his are not 10 numbered by volume. 11 12 CONTINUED BY MR. JAMES LOCKYER: 13 MR. JAMES LOCKYER: All right. Have we 14 got the document, at least? 15 COMMISSIONER STEPHEN GOUDGE: What -- 16 yes. What tab? 17 18 CONTINUED BY MR. JAMES LOCKYER: 19 MR. JAMES LOCKYER: Six (6). page 175, 20 sir, of your materials and 2251 for the purposes of the 21 PFP number. 22 And you're asked, sir, at line 20 -- 23 DR. CHARLES SMITH: I -- I'm -- suddenly 24 I'm lost here. What -- what page am I -- 25 MR. JAMES LOCKYER: This is Paolo's case,

1 sir. 2 DR. CHARLES SMITH: Yes, if you can give 3 me the page number, please. 4 MR. JAMES LOCKYER: You might just look 5 at the screen, it might be easier for you. It's right 6 there in front of you. 7 COMMISSIONER STEPHEN GOUDGE: Slash 175 8 on the top right hand corner, Dr. Smith. 9 Do you see the numbers at the top right 10 hand corner? 11 DR. CHARLES SMITH: Yes, yes. 12 COMMISSIONER STEPHEN GOUDGE: Go to slash 13 175. 14 DR. CHARLES SMITH: Thank you, sir. 15 16 CONTINUED BY MR. JAMES LOCKYER: 17 MR. JAMES LOCKYER: And you're being 18 asked there, sir, about how Paolo could have been 19 asphyxiated; around line 20. 20 DR. CHARLES SMITH: Yes. 21 MR. JAMES LOCKYER: And you're asked: 22 "Could you explain [by the Crown] how 23 that could be a scenario?" 24 And then, sir, you say: 25 "Well, having done the preliminary

1 remarks to try and answer your 2 question, if the two (2) are tied 3 together, I think the best explanations 4 are going to be 1) that he did suffer 5 from head injury and as a part of that 6 suffered seizures or status epilepticus 7 or, otherwise, in the dying process 8 lost his ability to control or protect 9 his airway. And remember that as you 10 slip further and further into 11 unconsciousness, one (1) of the things 12 you lose is the ability to control your 13 airway. Your cough or gag reflex is 14 one (1) of the last protective rec -- 15 mechanisms lost in the dying process. 16 And so, as a part of a dying process, 17 if he's unconscious, if he's lost his 18 cough and gag reflex, is it possible 19 something obstructed his airway to 20 cause these changes?" 21 And that answer is: 22 "Yeah, it's quite possible. The other 23 way to tie them in is to have two (2) 24 separate events. But a baby with a 25 head injury, initially if he or she

1 hasn't lost consciousness is going to 2 be very irritable and crying and the 3 reality is there are caregivers around 4 who attempt to silence irritable 5 children by holding a pillow over their 6 face or by flipping them over and 7 forcing their face into a pillow or a 8 mattress to keep them quiet, and in 9 doing so, asphyxiate them. They don't 10 always kill them, but it does happen. 11 And so an alternative suggestion I 12 would make to you that would tie the 13 two (2) in could be that Paolo did 14 suffer a head injury, he was irritable 15 and someone decided to keep him quiet 16 by obstructing his airway so that he 17 couldn't cry, and doing so, ended up 18 delivering the coup de grace." 19 Do you remember saying something like 20 that, sir, back in that case, in front of a jury. 21 DR. CHARLES SMITH: I -- I don't 22 specifically remember these words, but I -- but I've 23 certainly read them. I do remember that I was asked to 24 give possible causes of death. I do remember speculating 25 the fact that the word "if" has been used here in many

1 instances; is, I believe, recognition of the fact that I 2 was speculating. 3 But I was asked a question on 4 possibilities and I gave possibilities. I gave limits to 5 what those possibilities were. I acknowledge now that I 6 should not have been speculating, but I do -- but I also 7 acknowledge that when I was asked a question, it would be 8 -- it would be proper for me to attempt to answer it, if 9 I could, and so that was an example of a lengthy answer. 10 And in this case it's an example of a lengthy answer with 11 speculation, trying to direct the judge and jury to my 12 thinking in response to a question on possibilities. 13 MR. JAMES LOCKYER: Have you read Dr. 14 Pollanen's remarks on this testimony and other aspects of 15 your testimony in this case, sir? 16 DR. CHARLES SMITH: I have -- I have read 17 a number of Dr. Pollanen's remarks. At this point I 18 can't tell you whether I -- I can't remember specifically 19 his remarks here, so if you want to bring them to -- 20 MR. JAMES LOCKYER: Does it surprise you 21 he described this as inflammatory, especially the use of 22 the term "coup de grace"? 23 DR. CHARLES SMITH: I can understand -- 24 MR. JAMES LOCKYER: You can? 25 DR. CHARLES SMITH: I can understand

1 that, yes. 2 MR. JAMES LOCKYER: And I'm going to 3 suggest to you there's another answer here that's very 4 reflective of the way you enjoyed sticking the knife in, 5 so to speak, if I may -- 6 DR. CHARLES SMITH: That is absolutely -- 7 MR. JAMES LOCKYER: -- engage such -- 8 DR. CHARLES SMITH: Excuse me for 9 interrupting. 10 MR. JAMES LOCKYER: Mm-hm. 11 DR. CHARLES SMITH: That is absolutely 12 false. There is no enjoyment in this whatsoever. I -- I 13 have stated on one (1) or more previous occasions my 14 regard to any time I testified in Court is it was a 15 tragic situation. There is no enjoyment, I respectfully 16 submit that to you, Mr. Lockyer. 17 There is no enjoyment whatsoever. These 18 are tragedies. I always knew them to be tragedies. 19 MR. JAMES LOCKYER: But the tragedy, Dr. 20 Smith, as we're now finding out more often than not, was 21 your evidence, right? 22 DR. CHARLES SMITH: That's your opinion. 23 I have -- I have stated to the -- to the -- 24 MR. JAMES LOCKYER: Did you -- 25 DR. CHARLES SMITH: -- to this Inquiry of

1 what my views are. 2 MR. JAMES LOCKYER: You've acknowledged 3 it as -- in a sense as your own opinion, by way of saying 4 how you got it wrong and apologizing for it time-after- 5 time. 6 DR. CHARLES SMITH: In -- in this case, I 7 have explained to you and to this Inquiry, the basis for 8 my evidence in court. 9 MR. JAMES LOCKYER: You -- you were asked 10 questions about Amber's case in the last few days, sir, 11 especially in regards to your conversations with Justice 12 Dunn. 13 And I wanted to have just a slightly 14 different focus, or perhaps, a very different focus on 15 the case. Because what has struck me about Amber's case 16 is that when we look at the array of experts who said you 17 were wrong, who's opinions you seem to have ignored for 18 the ensuing years, that -- that's what I wanted to focus 19 on. 20 I just wanted to take you through the 21 experts, quickly, who -- 22 DR. CHARLES SMITH: All right. 23 MR. JAMES LOCKYER: -- took you on, sir, 24 in -- 25 DR. CHARLES SMITH: Yes.

1 MR. JAMES LOCKYER: -- Amber's case. Dr. 2 Duhaime, a pediatric neurosurgeon at the Children's 3 Hospital in -- in Philadelphia. 4 DR. CHARLES SMITH: Yes. 5 MR. JAMES LOCKYER: Justice Dunn referred 6 to her remarkable career in his judgment. 7 DR. CHARLES SMITH: Yes. 8 MR. JAMES LOCKYER: That was one (1) of 9 them, right? 10 DR. CHARLES SMITH: Yes. I -- I have met 11 Dr. Duhaime, and I have taught with her, yes. 12 MR. JAMES LOCKYER: Dr. Ommaya, sir. 13 According to Justice Dunn, recognized worldwide as an 14 expert and pioneer in the pathology of head injuries, has 15 reviewed over thirty thousand (30,000) head injuries. 16 That was back at the time of the decision in the -- in 17 the '90's. 18 That was another one, is that right? 19 DR. CHARLES SMITH: Dr. -- Dr. Ommaya is, 20 I believe, is a neurosurgeon, yes. 21 MR. JAMES LOCKYER: Mm-hm. Do you 22 remember you said insulting things about him in your 23 Maclean's interview to Jane O'Hara? 24 DR. CHARLES SMITH: No, I do not. 25 MR. JAMES LOCKYER: You don't. Dr.

1 Gilles, if that's the right pronunciation, head of 2 neuropathology at the Los Angeles Children's Hospital? 3 DR. CHARLES SMITH: Floyd Gilles is, I -- 4 is I believe, how his name is pronounced. 5 MR. JAMES LOCKYER: Dr. Lucy Rorke, a 6 professor of pathology and neurology at the University of 7 Pennsylvania? 8 DR. CHARLES SMITH: Yes. 9 MR. JAMES LOCKYER: Dr. Leetsma, a 10 pediatric neuropathologist out of Chicago? 11 DR. CHARLES SMITH: Yes. 12 MR. JAMES LOCKYER: Forensic pathologist 13 as well? 14 DR. CHARLES SMITH: He -- he has authored 15 a textbook on forensic neuropathology which I -- I have 16 referred to. 17 MR. JAMES LOCKYER: Dr. Thibeault, a 18 professor in engineering at the University of 19 Pennsylvania? 20 DR. CHARLES SMITH: Yes, he testified. 21 MR. JAMES LOCKYER: Mm-hm. Dr. McDonald, 22 a chief radiologist at the Children's Hospital of Eastern 23 Ontario. 24 DR. CHARLES SMITH: I -- I believe he 25 testified.

1 MR. JAMES LOCKYER: Dr. Patricia Horsham, 2 a pediatrician? 3 DR. CHARLES SMITH: Yes. 4 MR. JAMES LOCKYER: From Ottawa, as I 5 recall? 6 DR. CHARLES SMITH: Yes. 7 MR. JAMES LOCKYER: Dr. Charles Ferguson, 8 sir, out of Winnipeg? 9 DR. CHARLES SMITH: Yes. 10 MR. JAMES LOCKYER: And this is what 11 Justice Dunn said -- and there's a purpose to this -- 12 about Dr. Charles Ferguson, and I quote from his 13 judgment. He said: 14 "Turning now to the Canadian specialist 15 called by the defence. Dr. Charles 16 Ferguson graduated in medicine in 1957, 17 and he's been a pediatrician since 18 1968. He's currently Director of the 19 Child Protection Centre in Winnipeg 20 Children's Hospital. Dr. Ferguson has 21 lectured on the mechanics of injury. I 22 consider Dr. Ferguson to be an expert 23 in forensic investigation. This 24 amazing man, and I say so with great 25 respect, has testified in court

1 proceedings over one thousand one 2 hundred (1,100) times. I was very 3 impressed by his experience, by his 4 careful method of approaching new or 5 dubious evidence; by his common sense 6 and by his fairness in looking at all 7 sides of an issue." 8 Now you must have read that -- 9 DR. CHARLES SMITH: As part of his 10 decision-making, yes. 11 MR. JAMES LOCKYER: -- when you finally 12 came to read the decision -- 13 DR. CHARLES SMITH: Yes, I read that. 14 MR. JAMES LOCKYER: -- is that right, 15 sir? 16 DR. CHARLES SMITH: Yes. 17 MR. JAMES LOCKYER: And let's take you to 18 what you had to say about Dr. Ferguson, sir, when you 19 testified at Dustin's preliminary hearing. 20 Do you remember what you said there? 21 DR. CHARLES SMITH: No, I don't. 22 MR. JAMES LOCKYER: I'll take you to it. 23 It's PFP048194. 24 DR. CHARLES SMITH: All right. 25 MR. JAMES LOCKYER: And for you, it's

1 Commission Counsel documents Volume I at Tab 12. 2 3 (BRIEF PAUSE) 4 5 DR. CHARLES SMITH: I have that. 6 MR. JAMES LOCKYER: Page 69, line 5, of 7 the transcript. Are you there? 8 DR. CHARLES SMITH: I have that. 9 MR. JAMES LOCKYER: You were asked by 10 counsel -- you had just said -- he's asked you: 11 "Peop -- Judges have said that about 12 you -- that you've done shoddy work. 13 A: --" 14 DR. CHARLES SMITH: Mm-hm. 15 MR. JAMES LOCKYER: 16 "-- One (1) Judge -- I'm told by you -- 17 one (1) Judge wrote that in his 18 submission. I don't know. I don't 19 know what he wrote. That's Judge Dunn, 20 who prior to hearing the defence 21 experts, in fact, told me on more than 22 one (1) occasion -- private 23 conversations -- how hasty he was with 24 the work I had done and others had done 25 at the hospital.

1 Q: But experts came in on that 2 particular case; experts came in and 3 said you did shoddy work. 4 A: That's right. 5 Q: The gentleman from out west in 6 Winnipeg; what's his name -- the expert 7 out there that was flown in from 8 Winnipeg." 9 And your answer to that: 10 "The paid mouth. There's an expert 11 from Winnipeg who's regarded as a 'paid 12 mouth'." 13 Do you remember saying that, sir? 14 DR. CHARLES SMITH: I don't remember, but 15 I recognize that that was uncharitable, yes. 16 MR. JAMES LOCKYER: Outrageous, isn't it, 17 an outrageous thing to say? It's not just uncharitable. 18 I'm not going to let you get away with that. 19 DR. CHARLES SMITH: That was certainly a 20 view that was -- that was held of him, but it's un -- 21 MR. JAMES LOCKYER: By you. 22 DR. CHARLES SMITH: -- uncharitable. I 23 am -- well, I held that view, yes. You could ask others. 24 MR. JAMES LOCKYER: Well, perhaps I 25 should ask Justice Dunn.

1 DR. CHARLES SMITH: The -- no, you keep 2 going with your questions. I was going to -- 3 MR. JAMES LOCKYER: Mm-hm, mm-hm. 4 DR. CHARLES SMITH: I was going to sort 5 of try and understand your question here, but keep going, 6 I'm sorry. 7 MR. JAMES LOCKYER: So, you were aware 8 that these nine (9) experts in different fields, but all 9 relevant to Amber's case had taken on your opinion which 10 was shared solely by a couple of pediatricians from HSC. 11 Is that right? 12 DR. CHARLES SMITH: Pediatrician, an 13 intensivist, and a neuroradiologist testified. I can't 14 tell you who else would have shared that opinion. 15 MR. JAMES LOCKYER: Well, I'm talking 16 about what happened at the trial. 17 DR. CHARLES SMITH: Yes. 18 MR. JAMES LOCKYER: You were the only so- 19 called pediatric forensic pathologist who testified for 20 the Crown, am I right? 21 DR. CHARLES SMITH: I'm the -- I'm the 22 only -- yeah, the only anatomic or pediatric pathologist 23 who testified period. 24 MR. JAMES LOCKYER: Did that give you 25 cause for thought -- pause, cause to pause -- and say,

1 Maybe I've got a problem here if all these people are 2 going to take me on from Canada, from the United States, 3 and clearly be the ones who Justice Dunn accepts. 4 Did you -- did it -- 5 DR. CHARLES SMITH: Yes, it did, sir. 6 MR. JAMES LOCKYER: It did. 7 DR. CHARLES SMITH: And -- and I would be 8 pleased to direct you to evidence that shows that I 9 considered that very carefully. In my curriculum vitae 10 are papers -- research papers -- that have been published 11 with others about this various issue. 12 The most recent paper, in fact, includes 13 Dr. Rourke, who is one (1) of the people who testified 14 there, and so I believe that my response was appropriate, 15 which was to say, These are areas of uncertainty. 16 Some of these people -- all of these 17 people came from a different perspective than I did. 18 There were two (2) neuropathologists, there were two (2) 19 neurosurgeons, there were biomechanical people. 20 I cannot speak to biomechanics. I 21 understand the ongoing controversy, even to this day, as 22 to a perfect biomechanical model. I cannot speak to 23 neurosurgery, but I can speak to the discipline in which 24 I work. 25 And my response to that was, thereafter,

1 to direct attention -- my attention -- with colleagues to 2 answer the very significant questions that dealt with the 3 uncertainty, and I also followed the research that was 4 done by the people who were involved in it. 5 Dr. Duhaime continued to publish papers on 6 the subject over the years. I continued to read her 7 papers. The -- the Amber case is one (1) which -- which 8 I was always aware of the difficulties or the 9 controversies. 10 But, sir, I believe that the evidence 11 shows that I had an open mind and was active in trying to 12 answer some of the very questions that Judge Dunn had to 13 struggle with, and we all have to struggle with, every 14 time we have a potential case of Shaken Baby Syndrome. 15 MR. JAMES LOCKYER: But your testimony at 16 the same preliminary hearing, sir, was that, the 17 consequence of Justice Dunn's decision in Amber's case, 18 that thereafter you became more certain that you were 19 right. 20 DR. CHARLES SMITH: In -- in Amber's 21 case? 22 MR. JAMES LOCKYER: Yeah. 23 DR. CHARLES SMITH: As I continued to 24 evaluate the literature that came in, I believe that the 25 literature served to clarify some of the issues, and

1 especially the issues that Dr. Duhaime, Tina Duhaime, had 2 -- had presented. There was further literature on things 3 like stairway injuries. 4 So as I considered it, I did not see 5 literature that caused me to grow less certain in my 6 opinion. But in the 1990s I believed that the literature 7 in fact served to help give more strength to the concept 8 of Shaken Baby Syndrome, rather than less. 9 The greater controversies have occurred in 10 more -- in more recent years. 11 MR. JAMES LOCKYER: So this was a fall 12 case primarily, was it not, sir? 13 DR. CHARLES SMITH: Well, it was -- that 14 was the explanation that was given to me -- 15 MR. JAMES LOCKYER: And my question is -- 16 let me finish. 17 DR. CHARLES SMITH: I'm sorry. 18 MR. JAMES LOCKYER: That -- or the 19 suggestion is that you became more certain of your 20 opinion, and that it was right, after Justice Dunn's 21 decision? 22 DR. CHARLES SMITH: Yes, because the 23 literature -- 24 MR. JAMES LOCKYER: Mm-hm. 25 DR. CHARLES SMITH: -- on falls, and

1 specifically the next -- the next major paper on stairway 2 injury, supported the view that I had formed, based on 3 the earlier literature on stairway injury that was -- it 4 was quite clear from the subsequent study that the 5 earlier seminal study was supported. 6 And, so the -- the literature on stairway 7 injuries -- the newer literature, as I considered it, led 8 me to believe that -- that the earlier literature was in 9 fact supported. And so hence that supported my view that 10 -- that the autopsy findings in Amber were not explicable 11 on the basis of the stairway injury. 12 MR. JAMES LOCKYER: Just a sense of 13 entitlement on your part, sir, and a -- a breathtaking 14 arrogance -- 15 DR. CHARLES SMITH: No -- 16 MR. JAMES LOCKYER: -- that you could 17 never be wrong? 18 DR. CHARLES SMITH: No, sir. 19 MR. JAMES LOCKYER: Isn't that what was 20 operational in those days, sir? 21 DR. CHARLES SMITH: No, sir. There 22 were -- 23 MR. JAMES LOCKYER: That if anyone -- 24 DR. CHARLES SMITH: I'm sorry. I 25 shouldn't have interrupted.

1 MR. JAMES LOCKYER: -- tried to -- if 2 anyone tried to take you on, that you would just be 3 insulting about them and their expertise? 4 DR. CHARLES SMITH: No, sir. There are 5 controversies in Shaken Baby Syndrome which I 6 subsequently in Court indicated that my opinion had 7 changed on, such as how many shakes it has to be and that 8 sort of thing. 9 And controversies such as must there be 10 blunt impact, do you have to see bruises with the blunt 11 impact -- and I acknowledged in Court over the subsequent 12 years that as the literature changed, my opinions on some 13 of these issues changed to match the literature. 14 So I believe that if one carefully 15 considers what I have done and said about it, the -- the 16 reality is I continued to look to the literature for 17 better information, and where appropriate I did change my 18 opinion and I acknowledged that my opinion was different 19 than it had been in the past. 20 MR. JAMES LOCKYER: As I understand, I -- 21 as I understand it now, you've apologized to the lady who 22 was charged as a result of Amber's death. 23 Am I right? 24 DR. CHARLES SMITH: I -- I believe that I 25 recog --

1 MR. JAMES LOCKYER: Sir, did you do not 2 do that the other day? 3 DR. CHARLES SMITH: I -- I -- 4 MR. JAMES LOCKYER: Or am I wrong? 5 DR. CHARLES SMITH: No, no, that was on - 6 - on Monday afternoon. 7 MR. JAMES LOCKYER: Okay. 8 DR. CHARLES SMITH: Yes, I -- I recognize 9 that my testimony was -- was unhelpful and I apologized-- 10 MR. JAMES LOCKYER: To her? 11 DR. CHARLES SMITH: -- to that. I don't 12 know who she -- she is -- 13 MR. JAMES LOCKYER: All right. 14 DR. CHARLES SMITH: -- so I couldn't 15 apologize to her personally, but I -- I did try and 16 communicate -- 17 MR. JAMES LOCKYER: All right. 18 DR. CHARLES SMITH: -- that apology 19 within the -- the confines of this hearing. 20 MR. JAMES LOCKYER: So in your new mold, 21 you've acknowledged that you got it wrong, right? 22 DR. CHARLES SMITH: Well, I -- I 23 acknowledged that my testimony was not helpful. The 24 issue as to Shaken Baby Syndrome in this case is an issue 25 that I think many people could debate for years.

1 MR. JAMES LOCKYER: What does that mean? 2 Your testimony was not helpful: What on earth does that 3 mean? 4 You -- you mean -- doesn't it simply mean 5 that your testimony had the potential to lead to a 6 miscarriage of justice? "Unhelpful" is an odd word to 7 use, Mr. Smith. 8 DR. CHARLES SMITH: No, I -- I believe 9 that that's a correct word. 10 MR. JAMES LOCKYER: Mm-hm. 11 DR. CHARLES SMITH: I certainly recognize 12 that -- 13 MR. JAMES LOCKYER: All right. 14 DR. CHARLES SMITH: -- I was dogmatic and 15 defensive, yes. I recognize -- 16 MR. JAMES LOCKYER: 'Cause you -- 17 DR. CHARLES SMITH: -- that. 18 MR. JAMES LOCKYER: -- you -- it was a 19 habit of yours to condemn people in your -- well, 20 actually people -- not people in your profession -- 21 people who were genuine forensic pathologists. You had a 22 habit of being critical of them, didn't you, sir. 23 And -- and using unpleasant language about 24 them, isn't that right? I mean, what we said about Dr. - 25 - what you said about Dr. Ferguson is not the only time

1 you've felt it appropriate to comment on what you think 2 of other people? 3 DR. CHARLES SMITH: I have done that, and 4 it was wrong, and I acknowledge it. 5 MR. JAMES LOCKYER: Mm-hm. We heard 6 about you did it with Dr. Nag: 7 "The paper that this autopsy is written 8 on isn't worthy of filing as an 9 exhibit. It should be filed in the 10 garbage can." 11 Do you remember that? 12 DR. CHARLES SMITH: I remember that, and 13 I -- 14 MR. JAMES LOCKYER: Mm-hm. 15 DR. CHARLES SMITH: -- and I recognize 16 that that was wrong, and I -- and I have noted that in my 17 written evidence. 18 MR. JAMES LOCKYER: And a document -- a 19 transcript that you were taken to by Commission Counsel, 20 sir. Remember, you said insulting things about Dr. 21 Plunkett? 22 DR. CHARLES SMITH: I -- I certainly have 23 looked at the controversy, and I -- and I can't remember 24 exactly what I said about Dr. Plunkett right now. 25 MR. JAMES LOCKYER: Well it's --

1 MS. CAROLYN SILVER: But I was likely 2 uncharitable. 3 MR. JAMES LOCKYER: Uncharitable. It's 4 sort of -- are these words that you've sort of learned in 5 advance of coming here, sir? "Uncharitable", "unhelpful" 6 -- those kinds of words? 7 DR. CHARLES SMITH: No, those are -- 8 MR. JAMES LOCKYER: Sort of buzz words -- 9 DR. CHARLES SMITH: -- those are words -- 10 MR. JAMES LOCKYER: -- for your 11 testimony? 12 DR. CHARLES SMITH: No, those are words 13 that I'm using to try and -- 14 MR. JAMES LOCKYER: Mm-hm. 15 DR. CHARLES SMITH: -- express my -- my 16 view. 17 MR. JAMES LOCKYER: If we go to 18 PFP020900. 19 DR. CHARLES SMITH: I'm sorry, I don't 20 know -- 21 MR. JAMES LOCKYER: For you, it's 22 Commission Counsel documents Volume III, sir, at Tab 11. 23 Look at page 69 of the transcript. 24 25 (BRIEF PAUSE)

1 MR. JAMES LOCKYER: Line 25. 2 DR. CHARLES SMITH: Oh, -- 3 MR. JAMES LOCKYER: Do you have that? 4 DR. CHARLES SMITH: -- oh, slash 70, is 5 that it? Mm-hm. 6 MR. JAMES LOCKYER: I -- I'm looking at 7 69 on my document. 8 DR. CHARLES SMITH: Okay. I -- I see -- 9 referring -- 10 MR. JAMES LOCKYER: Line 25. 11 DR. CHARLES SMITH: -- to Dr. Plunkett, 12 yes. Mm-hm. 13 MR. JAMES LOCKYER: Sorry, you -- should 14 I give you the number again, 02 -- 15 DR. CHARLES SMITH: No, I -- 16 MR. JAMES LOCKYER: No, no, I'm not 17 talking to you -- 18 DR. CHARLES SMITH: Oh. 19 MR. JAMES LOCKYER: -- I'm talking to the 20 Registrar. 020900. Page 69. 21 COMMISSIONER STEPHEN GOUDGE: Is that the 22 right page on the screen, Mr. Lockyer? 23 THE REGISTRAR: Slash 70. 24 MS. LINDA ROTHSTEIN: Slash 70. 25 COMMISSIONER STEPHEN GOUDGE: Slash 70.

1 MR. JAMES LOCKYER: Slash 70. 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. JAMES LOCKYER: 6 MR. JAMES LOCKYER: Right, there we go. 7 Down on the bottom there. At line 25, sir, you're asked 8 by counsel: 9 "Are you aware of the work of a Dr. 10 John Plunkett in this area? 11 Yes. 12 Do you know him personally? 13 No. 14 Just his work then? 15 Yes. 16 Have you reviewed his work? 17 I've seen his papers. 18 Do you have an opinion on his papers 19 with respect to the force that may 20 cause injury from an accidental fall? 21 I'm aware of a paper published recently 22 that dealt with that, yes. 23 And do you agree with his findings? 24 No, I don't know anyone who does." 25 Do you remember being asked those

1 questions, giving those answers, sir? 2 DR. CHARLES SMITH: Well, I -- I don't 3 remember, but I -- but I do accept that this is what I 4 said. 5 MR. JAMES LOCKYER: And then at the 6 bottom of this page, sir, you're asked about Dr. Ferris: 7 "Are you aware of Dr. Rex Ferris? 8 Yes. 9 Do you respect Dr. Ferris' work? 10 No. 11 And may I ask why not? 12 I don't know anyone in the area of 13 pediatric forensic work in Canada who 14 respects his work in the area of 15 pediatric forensic work." 16 At line 15: 17 "Is there perhaps, Dr. Smith, a 18 publication or a particular case in 19 which you've been involved in that 20 leads you to say you don't respect Dr. 21 Ferris' work?" 22 Your answer to that should've have been, 23 Yes, shouldn't it, don't you think? 24 DR. CHARLES SMITH: Well -- 25 MR. JAMES LOCKYER: Sharon's case.

1 DR. CHARLES SMITH: I'm... 2 MR. JAMES LOCKYER: But you didn't say 3 that, did you? 4 DR. CHARLES SMITH: I -- I had not -- 5 MR. JAMES LOCKYER: Chances are the 6 cross-examiner wouldn't have know about Sharon's case at 7 this point in time, but you sure did -- and Dr. Ferris' 8 involvement in it. 9 DR. CHARLES SMITH: I'm sorry, what's 10 your question? 11 MR. JAMES LOCKYER: I say your answer to 12 that question -- 13 DR. CHARLES SMITH: Mm-hm. 14 MR. JAMES LOCKYER: -- should have been 15 "yes". Is there, perhaps, a publication or a particular 16 case in which you've been involved in that leads you to 17 say you don't respect Dr. Ferris' work? 18 DR. CHARLES SMITH: I -- I answered it as 19 best I -- 20 MR. JAMES LOCKYER: Mm-hm. 21 DR. CHARLES SMITH: -- remembered it at 22 that time. 23 MR. JAMES LOCKYER: Well, let's see how 24 you answered it: 25 "My struggle with the question, Your

1 Honour, is whether it will get me in 2 trouble legally if I answer it. 3 Q: What kind of trouble? 4 Liable and slander, says the Court." 5 And then the Court says: 6 "Is there something you can have an 7 intellectual disagreement with while 8 still respecting another doctor's 9 ability so it wouldn't be considered to 10 be some kind of professional attack?" 11 And you said: 12 "Obviously, I know Rex Ferris." 13 And then you say: 14 "I mean James Ferris is his proper 15 name, and I've known him for twenty 16 (20) years. I've never seen him give 17 an opinion on a pediatric case in which 18 I think he is close to reasonable. He 19 doesn't practice pediatric forensic 20 pathology." 21 There's a real irony to that, isn't there, 22 sir, because nor did you? And then you go on: 23 "He was excluded from doing so in 24 British Columbia for many years before 25 he lost his position in pediatric

1 forensic pathology in British 2 Columbia." 3 And that's simply not true, is it, sir. 4 DR. CHARLES SMITH: No, that's what I 5 understood. 6 MR. JAMES LOCKYER: He just changed 7 positions. He just moved on in his life. 8 DR. CHARLES SMITH: No, that's not what I 9 -- what I was referring to, as best I can recall. 10 MR. JAMES LOCKYER: 11 "And his knowledge of pediatric 12 pathology, in general, is not of a 13 level that I think he has any special 14 expertise in the area." 15 I mean as you read this kind of statement 16 by you now, sir, under oath, it must make you shiver, 17 doesn't it? Like you could be describing yourself, 18 couldn't you? You could say -- you -- you'd say that 19 about yourself now. 20 You have no special expertise in the area; 21 any more than anyone else. 22 DR. CHARLES SMITH: No, I believe I have 23 expertise in pediatric pathology, in general. 24 MR. JAMES LOCKYER: Now you're talking 25 about pediatric forensic pathology, sir; that's the --

1 that's the phrase that you've been using, isn't it, as 2 you testify? 3 Do you see that? line 4, line 7, right? 4 And then you say at line 15: 5 "I just happen to think that in 6 pediatric forensic pathology, I have no 7 respect for Dr. Ferris' opinions. I 8 cannot give you any statements about 9 his work in adult forensic pathology. 10 It's the area that was car -- his 11 career and he worked in that for 12 decades before retiring, but in the 13 pediatric realm, I do not respect his 14 opinions though he is a very nice man." 15 Do you remember saying that, sir, about 16 this man? 17 DR. CHARLES SMITH: No, I don't, but I 18 read it, and I accept that I made those statements. 19 MR. JAMES LOCKYER: To me, that just 20 shows the arrogance of yourself, sir, in the days that 21 you were testifying as a purported pediatric forensic 22 pathologist, am I right? 23 DR. CHARLES SMITH: I -- I do not 24 interpret that to be arrogance. 25 MR. JAMES LOCKYER: Mm-hm.

1 DR. CHARLES SMITH: I was asked an 2 opinion. I was asked a question about Dr. Ferris. I 3 answered it truthfully, but very uncharitably and 4 unkindly, but I answered truthfully the question that I 5 was asked. 6 But had you asked me about other people, I 7 would have painted an entirely different picture of 8 respect, but in this case, in this very narrow work that 9 Dr. Ferris did, I, based on what I saw, not what others 10 may have seen but what -- on what I saw, I answered the 11 question to the best of my ability. 12 MR. JAMES LOCKYER: Well, we've seen how 13 you thought of others; Dr. Plunkett, you talk about -- 14 we've seen what you thought of him. 15 DR. CHARLES SMITH: Well -- 16 MR. JAMES LOCKYER: Dr. Nag, we've seen 17 what you thought of her report, and, of course, Dr. 18 Ferguson in Winnipeg, as well. 19 There was a theme here, wasn't there, Mr. 20 Smith? 21 DR. CHARLES SMITH: I disagree with that. 22 MR. JAMES LOCKYER: Mm-hm. Justice 23 Dunn's decision, sir, you acknowledged, when Commission 24 counsel was questioning you on Tuesday, that when you 25 came to respond to the complaint to the College, in May

1 4th of 1992, all right? 2 DR. CHARLES SMITH: Yes. 3 MR. JAMES LOCKYER: That, of course, by 4 then you would have read his decision? 5 DR. CHARLES SMITH: Yes. 6 MR. JAMES LOCKYER: Impossible to believe 7 you wouldn't have, if you were going to respond to a 8 complaint to the College. 9 Am I right? 10 DR. CHARLES SMITH: Yes. 11 MR. JAMES LOCKYER: But in the meantime, 12 you were claiming, both before and after that, that you'd 13 never read the decision. 14 Is that right? Some kind of bravado 15 position that you were taking, that you'd never read the 16 decision? Do you remember you'd say that to people? 17 DR. CHARLES SMITH: You may have to help 18 me specifically here, sir. 19 MR. JAMES LOCKYER: Well, I'm just -- I'm 20 not trying to be specific -- 21 DR. CHARLES SMITH: Yeah, yeah. 22 MR. JAMES LOCKYER: -- I'm just 23 suggesting to you that was your general position with 24 people, that you'd never read his decision. Why would 25 you? It's obviously nonsense, because it -- it says I

1 was wrong and they were right. 2 DR. CHARLES SMITH: No, no. I recognized 3 in his decision that there were points that were 4 important. Some I disagreed with. 5 MR. JAMES LOCKYER: Now you're off -- 6 you're off topic, sir. 7 DR. CHARLES SMITH: I'm sorry. 8 MR. JAMES LOCKYER: I'll focus you on the 9 question. 10 DR. CHARLES SMITH: I'm sorry. 11 MR. JAMES LOCKYER: I'm suggesting to 12 you, sir, you took the position with people that you 13 never read his decision, as a -- as a sort of a false 14 bravado about the case. 15 Is that right, or is that wrong? 16 DR. CHARLES SMITH: As -- as a false 17 bravado? 18 MR. JAMES LOCKYER: Yeah. 19 DR. CHARLES SMITH: I can't -- I can't -- 20 MR. JAMES LOCKYER: Did you tell people 21 that, first of all? Lets just get -- get an answer to 22 that question. 23 DR. CHARLES SMITH: Yes, I believe -- 24 MR. JAMES LOCKYER: You did? 25 DR. CHARLES SMITH: -- I believe I did.

1 MR. JAMES LOCKYER: You'd tell people you 2 hadn't read the decision when in fact you had? 3 DR. CHARLES SMITH: I believe I -- I did 4 on one (1) occasion that I can think of, yes. 5 MR. JAMES LOCKYER: What occasion was 6 that, sir? 7 DR. CHARLES SMITH: Well, I think that 8 was in the O'Hara -- 9 MR. JAMES LOCKYER: Right. 10 DR. CHARLES SMITH: -- telephone 11 conversation. 12 MR. JAMES LOCKYER: Yes. 13 DR. CHARLES SMITH: Yes. In which -- 14 MR. JAMES LOCKYER: So -- I mean, that 15 was just false. I mean you weren't telling her the 16 truth, right? 17 DR. CHARLES SMITH: I was -- I was very 18 angry and upset -- 19 MR. JAMES LOCKYER: Right. 20 DR. CHARLES SMITH: -- and I made 21 statements there which I regret. 22 MR. JAMES LOCKYER: But you made a 23 statement which was false. 24 DR. CHARLES SMITH: I recognize now in 25 reading it that I made that statement, yes, and it was

1 wrong. 2 MR. JAMES LOCKYER: Right. But I don't 3 know what wrong -- false -- false is what I'm -- 4 DR. CHARLES SMITH: Okay. 5 MR. JAMES LOCKYER: -- I mean, you -- you 6 -- when you spoke to her -- 7 DR. CHARLES SMITH: Mm-hm. 8 MR. JAMES LOCKYER: -- you weren't under 9 oath or anything. When you spoke to her, you weren't 10 telling the truth, were you? 11 DR. CHARLES SMITH: I was angry and 12 upset, and I said a number of things in there which were 13 incorrect, and as I read it later, I realized the 14 terrible mistake that I had made, yes. 15 MR. JAMES LOCKYER: And that explains why 16 you didn't tell her the truth. 17 DR. CHARLES SMITH: I can't rem -- 18 remember the conversation apart from being very, very 19 angry and upset. 20 MR. JAMES LOCKYER: Well, you told her 21 that you never bothered reading the judgment. Remember 22 that? 23 DR. CHARLES SMITH: Yes. I read that in 24 the transcript. 25 MR. JAMES LOCKYER: All right. And when

1 you said that, it wasn't true. You had read the 2 judgment. 3 DR. CHARLES SMITH: Yes. 4 MR. JAMES LOCKYER: Yes. And -- and you 5 know, I guess we can all lie to reporters, sir, 6 especially in -- in off the record conversations. I say 7 we all can, I'm not suggesting that we all should, but I 8 -- I guess there's nothing illegal about it. Lets put it 9 that way. 10 But it's a bit different when you testify 11 under oath, isn't it, sir? 12 DR. CHARLES SMITH: I recognize that. 13 MR. JAMES LOCKYER: Yeah. Why don't we 14 look at what you said in Dustin's preliminary hearing, 15 sir, because counsel questioned you about this. 16 PFP048194 again, sir. Commission 17 counsel's documents, Volume I, Tab 12, sir. At page -- 18 perhaps you'd go to 51 to give it a context. 19 You're being asked, sir, at the bottom of 20 -- are you with me? 21 DR. CHARLES SMITH: I think I'm on the 22 right page. 23 MR. JAMES LOCKYER: Yeah. 24 DR. CHARLES SMITH: Keep going. 25 MR. JAMES LOCKYER: Says -- should say 51

1 at the top of the page. 2 DR. CHARLES SMITH: I have it. 3 MR. JAMES LOCKYER: Mr. Graydon, who is a 4 defence counsellor, says: 5 "Is the answer to my question yes, plus 6 you're leading me through something 7 else? 8 A: You asked a three (3) part 9 question. I'm not sure of the third 10 part. 11 It's the first part I asked." 12 And you said: 13 "It was experts and decision and 14 publication, I think. 15 Q: I didn't say publication. I said 16 experts. 17 A: Experts and decisions and then 18 what? I thought you said something 19 about recorded." 20 And if we could then turn the page. 21 "Not recorded." 22 And then the Court intervenes: 23 "I think the question was other experts 24 indicated you were wrong; that's 25 question number 1.

1 A: That's right. 2 THE COURT: Question number 2 is a 3 judge in fact found you to be wrong." 4 That would, of course, be Justice Dunn. 5 "And question number 3 is whether the 6 judge then commented so in his 7 judgment." 8 And you said: 9 "I can't answer the third part. I 10 don't know." 11 And the judge said: 12 "You didn't read his judgment? 13 A: No, I didn't see his judgment." 14 This is March 30th of 1994, sir. Almost 15 two (2) years after you've written your response -- 16 DR. CHARLES SMITH: Mm-hm. 17 MR. JAMES LOCKYER: -- to the College? 18 DR. CHARLES SMITH: College, yes. And -- 19 and obviously -- 20 MR. JAMES LOCKYER: So here you are 21 again, you did it to a reporter off the record? 22 DR. CHARLES SMITH: Mm-hm. 23 MR. JAMES LOCKYER: You did it to a Court 24 under oath on the record? 25 DR. CHARLES SMITH: I see that, and --

1 MR. JAMES LOCKYER: Yes. 2 DR. CHARLES SMITH: -- I recognize that 3 that is wrong. I was -- 4 MR. JAMES LOCKYER: It's a white lie. 5 Isn't that the best description one might think of it, -- 6 DR. CHARLES SMITH: No. 7 MR. JAMES LOCKYER: -- Dr. Smith? 8 DR. CHARLES SMITH: No. At that point in 9 time, I -- 10 MR. JAMES LOCKYER: You'd forgotten that 11 you'd read the judgment, is that what you're -- 12 MS. LINDA ROTHSTEIN: I'm sorry, 13 Commissioner, I think that the witness has to be 14 permitted -- 15 MR. JAMES LOCKYER: Fine. 16 MS. LINDA ROTHSTEIN: -- an opportunity 17 to answer these questions. 18 COMMISSIONER STEPHEN GOUDGE: Why don't 19 you put your questions -- 20 21 CONTINUED BY MR. JAMES LOCKYER: 22 MR. JAMES LOCKYER: Well, I'm -- 23 DR. CHARLES SMITH: I'm sorry. I -- I 24 don't mean to be locking -- 25 MR. JAMES LOCKYER: Yeah, explain your --

1 DR. CHARLES SMITH: -- locking horns with 2 you. 3 MR. JAMES LOCKYER: -- answer? 4 DR. CHARLES SMITH: Yes. 5 MR. JAMES LOCKYER: Explain your answer, 6 sir? 7 DR. CHARLES SMITH: The -- I -- I -- I 8 have no specific recollection of this, and so the basis 9 for my mistake I could -- I could only speculate on. I 10 certainly never intended to -- to lie or mislead. 11 In the nature of a -- of a heated 12 exchange, what I may have said in error would be not 13 based on -- on intention. But I recognize it was a 14 mistake. I recognize as I read it now, it was wrong. 15 MR. JAMES LOCKYER: Just a matter of 16 seventeen (17) pages later, sir, in the same transcript, 17 a passage I've already read to you in a different context 18 this morning, you said it again. At line 5 of page 69, 19 sir. 20 DR. CHARLES SMITH: Yes. And I -- I've 21 made that mistake -- 22 MR. JAMES LOCKYER: Judges have said that 23 about you -- 24 DR. CHARLES SMITH: Mm-hm. 25 MR. JAMES LOCKYER: -- if I can read it

1 to you: 2 "You've done shoddy work. 3 A: One Judge -- I'm told by you -- one 4 judge wrote that in his submission. I 5 don't know. I don't know what he 6 wrote." 7 DR. CHARLES SMITH: Yes, I recognize that 8 that was the wrong answer. I also underscore the fact 9 that, in any wrong answer I gave, it was -- it was never 10 done willfully, but I recognize that I may have made 11 errors in my recollection in -- as I was being defensive 12 or -- or -- 13 MR. JAMES LOCKYER: Why did -- 14 DR. CHARLES SMITH: -- in these 15 exchanges. 16 MR. JAMES LOCKYER: I'm not sure in these 17 exchanges you were being defensive, sir. I might have 18 described you as being aggressive, not defensive. You 19 were far from defensive. 20 DR. CHARLES SMITH: Well, that's your 21 view. 22 MR. JAMES LOCKYER: Mm-hm. So can you 23 explain how you could have forgotten having read Justice 24 Dunn's judgment, which, in a sense, vilified your 25 opinions in the way that it did?

1 DR. CHARLES SMITH: Can I explain? 2 MR. JAMES LOCKYER: Yes. 3 DR. CHARLES SMITH: In -- in that 4 situation? 5 MR. JAMES LOCKYER: Mm-hm. 6 DR. CHARLES SMITH: I have no 7 recollection of it so I don't know that I can -- 8 MR. JAMES LOCKYER: All right. 9 DR. CHARLES SMITH: -- explain something 10 that I have no specific recollection of it. 11 MR. JAMES LOCKYER: Tell me, in all of 12 this, Mr. Smith, did you ever consider that one of the 13 things you were carrying around with you was the 14 reputation of the Hospital for Sick Children? A pretty 15 important institution in -- 16 DR. CHARLES SMITH: Yes, I'm aware of 17 that, yes. 18 MR. JAMES LOCKYER: You were? 19 DR. CHARLES SMITH: Yes. 20 MR. JAMES LOCKYER: And have they or 21 their -- the people -- the powers that be of the Hospital 22 for Sick Children, sir, ever confronted you with some of 23 the issues that we've been talking about in the last 24 three (3) or four (4) days, or have they been silent? 25 DR. CHARLES SMITH: Hm --

1 MR. JAMES LOCKYER: Have they ever taken 2 you to task, sat you down and said, What on earth were 3 you doing? 4 DR. CHARLES SMITH: No, sir. 5 MR. JAMES LOCKYER: Nothing? 6 DR. CHARLES SMITH: No, sir. Nope, that 7 never happened. 8 MR. JAMES LOCKYER: Right up to today, 9 not a word? 10 DR. CHARLES SMITH: In -- in all of the 11 situations where there was any publicity that could be -- 12 not simply that could be embarrassing or critical of me, 13 but also in situations where there was the potential for 14 publicity that could go the other way. I felt it my 15 responsibility to discuss that, at least, with my Chief. 16 And -- and that -- 17 MR. JAMES LOCKYER: Who's that? 18 DR. CHARLES SMITH: Well, over the years 19 it would be Dr. -- Dr. Phillips, Dr. Becker -- 20 MR. JAMES LOCKYER: Right. 21 DR. CHARLES SMITH: -- and then later Dr. 22 Taylor. And so conversations about what went on were -- 23 occurred, as there may be good or bad media publicity 24 because I felt it important that my Chief to know what I 25 knew about any situation.

1 There were times when my Chief also 2 involved others -- or I involved others -- such as public 3 relations at the hospital, so that again, good or bad 4 publicity would be appropriately responded to by the 5 Hospital for Sick Children, but, yes, I have discussed, 6 on many occasions over the years, things that could show 7 up in the media or that did show up in the media. 8 MR. JAMES LOCKYER: It sounds like damage 9 control, as much as anything, was your dealings with your 10 superiors. 11 DR. CHARLES SMITH: No, sir. No, it was 12 not damage control. It was to make them aware of what I 13 knew. There were -- there were, obviously, times when 14 they were well aware of things, because, you know, in 15 situations such as Dr. Becker, he would be familiar with 16 some of -- if it was a case, for instance, he would be 17 familiar with the case because he may have given an 18 opinion on it. 19 So this was not damage control. This was 20 the sharing of information that would help them best 21 understand any publicity -- good, bad -- that -- that 22 would be out there. Very frequently those conversations 23 would occur even before the potential for publicity. 24 MR. JAMES LOCKYER: Well, no doubt, they 25 were delighted by the stories in the Star in the late

1 '90's, sir, and equally horrified by the stories taking 2 place in '99, 2000, and thereafter. 3 DR. CHARLES SMITH: I'm sorry, are you 4 asking me to -- to indicate what someone else's opinion 5 was? 6 MR. JAMES LOCKYER: Yeah, what their 7 reactions were, yeah. 8 DR. CHARLES SMITH: We were all very 9 upset about what occurred in recent years. 10 MR. JAMES LOCKYER: Mm-hm. 11 DR. CHARLES SMITH: And that -- you know, 12 and that wasn't simply me. Certainly my colleagues were 13 aware of these cases, as was my Pathologist in Chief or 14 my Pathologists in Chief. 15 The -- the good publicity is one (1) which 16 -- which I can't say we were all delighted with because 17 there's a certain sensitivity in that publicity to -- to 18 the suggestion that the Hospital for Sick Children was 19 responsible for work that was being done for the Office 20 of the Chief Coroner. 21 And so it would be wrong to indicate that 22 there was delight in that; that was not a word which was 23 ever used in discussions with me. In that case, the 24 decision had made -- been made beforehand that -- that I 25 would assist the Toronto Star, but that decision was one

1 which was made -- or a party to that -- to those 2 discussions were the Office of the Chief Coroner and the 3 Hospital for Sick Children. 4 I need not take you through all of those 5 discussions, but I do not pretend that the word "delight" 6 is a word that was ever communicated to me about that. 7 MR. JAMES LOCKYER: And it wasn't until 8 the -- there were just too many explosions going on 9 arising out of cases that you had worked on that finally, 10 I guess, the Hospital for Sick Children thought you 11 should stop doing what you were doing, is that right? 12 DR. CHARLES SMITH: I'm sorry, stopped 13 doing pediatric forensic cases? 14 MR. JAMES LOCKYER: Yes. 15 DR. CHARLES SMITH: I had stopped doing 16 them much earlier on and then had been asked by the Chief 17 Coroner's Office to return to doing them. 18 MR. JAMES LOCKYER: What about the 19 Hospital for Sick Children -- that's my focus at the 20 moment? 21 DR. CHARLES SMITH: Yes, I understand. 22 So your question is specifically? 23 MR. JAMES LOCKYER: They didn't ever say 24 to you, You're going to have to stop doing these because 25 you're bringing our -- our hospital into -- giving it a

1 bad name? 2 DR. CHARLES SMITH: Never, that 3 discussion, to the best of my knowledge, never occurred. 4 No, in fact, the -- the hospital -- as I was stepping 5 back from these cases, the hospital undertook steps in 6 order that these cases could continue to be done at the 7 Hospital and they continued to honour the agreement with 8 the Chief Coroner's Office. 9 But at no point, at no point, was there 10 any suggestion by my Chief that I step back from these. 11 Never. 12 MR. JAMES LOCKYER: So they were very 13 supportive of you is what you're saying? The people that 14 you've named. 15 DR. CHARLES SMITH: They -- they were 16 supportive. We discussed frankly the problems and -- and 17 so I regarded their -- their actions towards me as being 18 supportive. 19 MR. JAMES LOCKYER: And when you went 20 before juries, sir, they were certainly led to believe by 21 you through your credentials, that you were a part of a 22 unique unit, perhaps certainly in North America. 23 Is that right? The pediatric section of 24 the Hospital for Sick Children and the -- the autopsies 25 that it was doing? Is --

1 DR. CHARLES SMITH: At -- 2 MR. JAMES LOCKYER: -- that right? 3 DR. CHARLES SMITH: -- at one point it 4 would have been a unique unit and I can not answer as to 5 how that was communicated to a jury without -- because I 6 don't have any specific recollection of how that was. 7 MR. JAMES LOCKYER: Well, you did it in - 8 - in Valin's Case, for example. If we look at 037014, at 9 page -- I'm not sure if it's -- at 4 -- my 479. Perhaps 10 page 69 for you, Mr. Registrar. Your documents, sir, 11 would be what we've given you for this. It's Volume -- 12 Volume V, Tab 4 of the documents we've given you, at your 13 page 69, sir. 14 DR. CHARLES SMITH: 69? 15 MR. JAMES LOCKYER: Yeah. And you see 16 there at the bottom, at line say 25, you're asked: 17 "How many people do the specific type 18 of work that you do? 19 A: At the Hospital, you mean? 20 Q: At the Hospital, or perhaps 21 throughout Canada? 22 A: Okay. At the Hospital there are 23 three (3) of us. I do the majority of 24 the work, and if I'm not there someone 25 has to stand in my place, so I do that.

1 The Pediatric Forensic Pathology Unit 2 is unique. We're not aware, or the 3 Chief Coroner isn't aware that there's 4 an existence anywhere in North America, 5 such a unit. So because of that I 6 probably do a little bit more of this 7 kind of work than anyone else in the 8 country." 9 Remember making those kinds of statements, 10 sir, in your qualifications, when you were testifying? 11 DR. CHARLES SMITH: I don't remember 12 that, no. 13 MR. JAMES LOCKYER: Mm-hm. And 14 ironically, I guess, sir, to say the Pediatric Forensic 15 Pathology Unit is unique is -- it was just that, because 16 it wasn't even a forensic pathology unit, really, was it, 17 on reflection? 18 There was no forensics -- forensic 19 training there, was there? 20 DR. CHARLES SMITH: It performed 21 autopsies, for the -- Office of the Chief Coroner, 22 autopsies that were warranted by a coroner, so therefore 23 they were forensic autopsies. And that word would be 24 used regardless of whether any person in Ontario was 25 trained or was not trained or certified in forensic

1 pathology. 2 So the nomenclature is accurate. You've - 3 - you've mixed -- as I understand your question, you've 4 mixed two (2) issues. One (1), the -- the performance of 5 a coroner's autopsy, or a medicolegal, or a forensic 6 autopsy, with the qualifications of the person who may 7 perform that. 8 MR. JAMES LOCKYER: Well, you weren't an 9 exception in that unit, sir. The others didn't have 10 forensic training either. 11 DR. CHARLES SMITH: No, none of us did. 12 MR. JAMES LOCKYER: No. None of you did. 13 DR. CHARLES SMITH: No. 14 MR. JAMES LOCKYER: Right. 15 DR. CHARLES SMITH: Historically no one 16 ever did. 17 MR. JAMES LOCKYER: Right. So you called 18 it something, but the people who worked within it didn't 19 fit within it's title. Perhaps that's the best way of 20 putting it. 21 Is that fair? 22 DR. CHARLES SMITH: All of the -- the 23 units, the forensic units, in Ontario were called 24 forensic units by the Office of the Chief Coroner and 25 they determined who worked in them. They were aware of

1 the qualifications. 2 So -- so your question may best be taken 3 up with someone other than myself. 4 MR. JAMES LOCKYER: In Kenneth's case, 5 sir, you told the jury that: 6 "The vast majority of my work is in 7 pediatric forensic pathology." 8 Does that sound right to you? 9 DR. CHARLES SMITH: At that time, that 10 could -- that may well have been correct. Without -- 11 without you taking me to that specifically, I... 12 MR. JAMES LOCKYER: And people, sir -- 13 other people in your profession were in fact genuinely 14 fearful of taking you on. 15 Isn't that right? You were, to use 16 Commission counsel's word, the icon. 17 DR. CHARLES SMITH: That's their 18 language, that's not mine. 19 MR. JAMES LOCKYER: Mm-hm. 20 DR. CHARLES SMITH: And I -- I can't 21 believe -- I -- I shouldn't say I can't believe. I -- it 22 was never communicated to me by any -- by any persons in 23 my position that they were fearful to take me on. 24 MR. JAMES LOCKYER: Dr. Ferris put it 25 quite well, sir, when he did his revised report in

1 Valin's case, in -- in January of 2006. 2 Let me take you to that. It's PFP058548 3 and your document, sir, it's -- I don't know if this 4 means anything -- Volume XXIII, Tab 6. 5 COMMISSIONER STEPHEN GOUDGE: It would be 6 Valin's case that -- 7 MR. JAMES LOCKYER: I never have got a 8 grip on this. I'm sorry. 9 COMMISSIONER STEPHEN GOUDGE: Mine have 10 both numbers and names, but I think Dr. Smith's only have 11 names. 12 MR. JAMES LOCKYER: At page 3, of his 13 opinion, sir. 14 COMMISSIONER STEPHEN GOUDGE: What tab 15 number? 16 MR. JAMES LOCKYER: I'm sorry. Tab 6, 17 Mr. Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: Thank you. 19 MS. LINDA ROTHSTEIN: Commissioner, if I 20 could just suggest that Mr. Lockyer slow down, allow the 21 witness to get the document, and make sure that he has it 22 before he takes him to it. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 There ought to be a volume with the word "Valin" on it. 25 DR. CHARLES SMITH: I -- I have a volume

1 here, yes. Valin, yes. 2 COMMISSIONER STEPHEN GOUDGE: And if you 3 turn to Tab 6, Dr. Smith -- 4 DR. CHARLES SMITH: Okay. 5 COMMISSIONER STEPHEN GOUDGE: -- that is 6 the document, I think. 7 MS. LINDA ROTHSTEIN: And Commissioner, 8 if I could also say at this juncture that it would be 9 helpful if Mr. Lockyer would ask one (1) question at a 10 time and allow the Witness to fully answer. 11 COMMISSIONER STEPHEN GOUDGE: Fair 12 enough. 13 MR. JAMES LOCKYER: I thought I was. 14 15 CONTINUED BY MR. JAMES LOCKYER: 16 MR. JAMES LOCKYER: Let me read to you, 17 sir, from what Dr. Ferris had to say -- 18 DR. CHARLES SMITH: Mm-hm. 19 MR. JAMES LOCKYER: -- in January of 20 2006. And this is under "commentary," and he wrote this: 21 "There is no doubt that at that time my 22 opinions were unduly influenced by the 23 apparent authoritative opinions given 24 by Dr. Smith and Mian, who strongly 25 supported the observations and opinions

1 of Dr. Zaire. I was concerned at that 2 time with the opinions expressed by Dr. 3 Smith in Valin's case and since that 4 time I've found myself disagreeing with 5 his forensic pathology opinions 6 expressed in several cases. And this 7 experience, including his work on the 8 Louise Reynolds case, has made me 9 extremely cautious about the quality of 10 his forensic pathology work. I'm now 11 aware that Dr. Smith's professionalism 12 is being questioned by others and I was 13 clearly in error to accept so readily 14 his opinions in Valin's case." 15 Do you see that? 16 DR. CHARLES SMITH: Yes, I see that. 17 MR. JAMES LOCKYER: And you were aware, 18 were you not, Dr. Smith, and it's reflected, I'm going to 19 suggest, in -- in some of the passages we've read from 20 your evidence on previous occasions, that it was 21 dangerous to take you on? Lets put it that way. 22 DR. CHARLES SMITH: I have never -- never 23 regarded -- regarded that and it's not been ever 24 communicated to me, that I can recall. Certainly Dr. 25 Ferris in the past took me on. He's the one who wrote

1 these comments, so I think that if you want their 2 interpretation, it would be best to ask him. 3 MR. JAMES LOCKYER: And I'm going to 4 suggest to you, sir, that there was a short circuiting 5 really of the adversarial process because of the -- the 6 halo, so to speak, that was given to you, and that meant 7 that your opinions carried a weight way beyond what they 8 deserved? 9 10 (BRIEF PAUSE) 11 12 DR. CHARLES SMITH: That's your view, 13 that is not my view. 14 MR. JAMES LOCKYER: I'd like to look at 15 some of the -- the individual cases, sir, that -- that 16 I'm a part of, and why I'm here today, and ask you, first 17 of all: 18 You're aware, are you, sir, that I'm here 19 on behalf of nine (9) of the people who were convicted of 20 one crime or another, in cases in which you provided 21 homicidal type opinions? 22 DR. CHARLES SMITH: I -- I was given a 23 list of the case -- of the names of the infants or 24 children that you were involved with, yes I -- so I 25 accept -- if you say there were nine (9), then I accept

1 that. 2 MR. JAMES LOCKYER: Well, there are nine 3 (9) that I'm here for. That's all I'm telling you. 4 DR. CHARLES SMITH: Yes, I accept that. 5 MR. JAMES LOCKYER: And do you know 6 anything about the status of those individual cases, sir? 7 DR. CHARLES SMITH: The -- the case -- 8 MR. JAMES LOCKYER: Have you inquired 9 about their status? 10 DR. CHARLES SMITH: The cases of -- the - 11 - you mean the -- the cases before the Court or the -- 12 the people who you represent? 13 MR. JAMES LOCKYER: The nine (9) that I'm 14 representing -- have you made any inquiries about their 15 status? 16 DR. CHARLES SMITH: No, I -- I don't -- 17 MR. JAMES LOCKYER: No? 18 DR. CHARLES SMITH: The nine (9) cases or 19 the nine (9) people? 20 MR. JAMES LOCKYER: The nine (9) people. 21 DR. CHARLES SMITH: The -- the nine (9) 22 people, so -- 23 MR. JAMES LOCKYER: Mm-hm. 24 DR. CHARLES SMITH: -- so you're asking 25 me if I know -- if I have information about --

1 MR. JAMES LOCKYER: Have you -- yeah. 2 DR. CHARLES SMITH: -- the nine (9) 3 people who were involved in the -- 4 MR. JAMES LOCKYER: Mm-hm. 5 DR. CHARLES SMITH: -- in these legal 6 situations. The information I have is that which would 7 have been revealed to me through the Inquiry 8 documentation. 9 MR. JAMES LOCKYER: I mean you're aware, 10 are you, that as we are here, that one (1) of them, for 11 example, is still in prison, thirteen (13) years later, 12 serving a life sentence? 13 DR. CHARLES SMITH: Am I aware that one 14 (1) of the people -- 15 MR. JAMES LOCKYER: Yes. 16 DR. CHARLES SMITH: -- you're represent -- 17 MR. JAMES LOCKYER: Kenneth's mother. 18 DR. CHARLES SMITH: I -- I can't say I 19 know anything about Kenneth's mother. 20 MR. JAMES LOCKYER: So you didn't know 21 that she's still in prison, thirteen (13) years later? 22 DR. CHARLES SMITH: Un -- unless this 23 documentation was given to me, no, I'm -- no. 24 MR. JAMES LOCKYER: You remember her 25 case, presumably. You testified in front of a jury on

1 it. 2 DR. CHARLES SMITH: I have some 3 recollection of -- of Kenneth -- Kenneth's autopsy and -- 4 and some recollection of the trial, yes. 5 MR. JAMES LOCKYER: You are aware, of 6 course, of what's happened to Valin's uncle's case, 7 right? 8 DR. CHARLES SMITH: Yeah, well, I can't 9 say I know all of the legal proceedings, nor would I 10 understand them even if I was necessarily told them all, 11 but I -- but I do understand that he served a long time 12 and -- and has been released, and the -- the issue at 13 hand, as I believe, is -- is a miscarriage of justice. 14 MR. JAMES LOCKYER: And the one (1) thing 15 that particularly, sir, in -- in his case, in Valin's 16 case -- her case, if you like -- that you came up with 17 that was, I think, unique to you, and Dr. Mian I suppose, 18 since she signed the report as well, was what you called 19 a fissure in her anal cavity, which you said it's 20 appearance demonstrated that it must have occurred like - 21 - or likely occurred within minutes of death and 22 certainly shortly before death, do you remember that? 23 DR. CHARLES SMITH: I -- I do remember 24 that fissuring was one (1) of the -- was one (1) of the 25 findings that I made, yes.

1 MR. JAMES LOCKYER: You said whatever 2 caused it occurred at the time of death or shortly before 3 death, remember that? 4 DR. CHARLES SMITH: I -- I accept that. 5 I can't -- without -- without looking at my testimony, I 6 -- I couldn't specifically se -- say that, but I believe 7 that -- that you're quoting it. 8 MR. JAMES LOCKYER: Well, if you could go 9 to his volume, sir, which I think I have as Volume V, go 10 to Tab 4 of it and look at your page 86, sir, PFP -- 11 MR. ROBERT CENTA: Sorry, Valin's binder? 12 MR. JAMES LOCKYER: Yes. 13 COMMISSIONER STEPHEN GOUDGE: Do you want 14 Valin's binder? 15 MR. JAMES LOCKYER: Yes. 16 DR. CHARLES SMITH: I have a volu -- 17 COMMISSIONER STEPHEN GOUDGE: It may be 18 in two (2) places. 19 MR. JAMES LOCKYER: It's our documents, 20 apparently, sorry. 21 DR. CHARLES SMITH: Oh. 22 COMMISSIONER STEPHEN GOUDGE: Okay, so go 23 to Volume V. 24 DR. CHARLES SMITH: I -- I -- 25 MR. JAMES LOCKYER: Volume V of our

1 documents -- 2 DR. CHARLES SMITH: I have that, yes. 3 MR. JAMES LOCKYER: PFP037014. 4 COMMISSIONER STEPHEN GOUDGE: Tab number? 5 MR. JAMES LOCKYER: 4. 6 COMMISSIONER STEPHEN GOUDGE: Thank you. 7 MR. JAMES LOCKYER: 496 is my page 86. 8 COMMISSIONER STEPHEN GOUDGE: Do you have 9 that, Dr. Smith? 10 DR. CHARLES SMITH: Page 86? 11 COMMISSIONER STEPHEN GOUDGE: Slash 86. 12 DR. CHARLES SMITH: I have it, yes. 13 14 CONTINUED BY MR. JAMES LOCKYER: 15 MR. JAMES LOCKYER: Page 86, sir -- 16 DR. CHARLES SMITH: Mm-hm. 17 MR. JAMES LOCKYER: -- if you just look 18 at line 20, you'll see is where you describe this fissure 19 that you claim you observed in photographs -- 20 DR. CHARLES SMITH: Yes. 21 MR. JAMES LOCKYER: -- right? 22 DR. CHARLES SMITH: Mm-hm. 23 MR. JAMES LOCKYER: And I guess Dr. Mian 24 claimed to observe, as well, am I right? 25 DR. CHARLES SMITH: That's my

1 recollection, yes. 2 MR. JAMES LOCKYER: You co-authored the 3 report. 4 DR. CHARLES SMITH: Yes. 5 MR. JAMES LOCKYER: Yes. You know no one 6 else purported to see that, do you understand that? 7 DR. CHARLES SMITH: I -- I believe that 8 we -- that there were different descriptions by different 9 people or different interpretations of what they saw, 10 yes. 11 MR. JAMES LOCKYER: And you've now 12 acknowledged it was not what you claimed it to be. You 13 did that here on Monday, right? 14 DR. CHARLES SMITH: Yes, I recognize that 15 this is -- is best placed within the context of -- of 16 post-mortem artifact. 17 MR. JAMES LOCKYER: And at the next page, 18 sir, 497, at line 20, you'll see that's where you said 19 that whatever caused that injury occurred at the time of 20 death, or shortly before the time of death? 21 DR. CHARLES SMITH: Yes. 22 MR. JAMES LOCKYER: And then on the next 23 page, sir, you're discussing whether it could have been 24 caused simply as a result of constipation. 25 And you say at line 10 -- in saying

1 essentially you can't eliminate that, but you then say: 2 "What I'm doing, sir, is I'm trying to 3 be a little conservative, or a little 4 cautious here. Obviously I don't think 5 constipation's a very good 6 explanation." 7 Do you see that? 8 DR. CHARLES SMITH: Yes, I see that. Mm- 9 hm. 10 MR. JAMES LOCKYER: So in the midst of 11 giving this damning evidence, you try and claim that, in 12 fact, you're really being as conservative as you can in 13 the opinion that you're giving, right? 14 DR. CHARLES SMITH: Well, I -- I've 15 answered the question -- 16 MR. JAMES LOCKYER: Mm-hm. 17 DR. CHARLES SMITH: -- and I think I 18 answered the question to indicate my level of certainty. 19 MR. JAMES LOCKYER: Evidence that, and 20 the effect, you can imagine, was awful for Valin's uncle. 21 It didn't just put him in jail, but it put him in jail in 22 very dangerous circumstances. 23 DR. CHARLES SMITH: I -- I recognize -- 24 MR. JAMES LOCKYER: Mm-hm. 25 DR. CHARLES SMITH: -- that my -- my

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  1  evidence, which was based on -- you know, on the best of
  2  my knowledge, we now know is wrong.  I recognize that.
  3                 MR. JAMES LOCKYER:   Evidence that --
  4                 DR. CHARLES SMITH:   I am very sorry for
  5  that.
  6                 MR. JAMES LOCKYER:   But you now in --
  7  sorry.
  8                 MS. LINDA ROTHSTEIN:   Mr. -- Mr. 
  9  Commissioner --
 10                 COMMISSIONER STEPHEN GOUDGE:   Yes?
 11                 MS. LINDA ROTHSTEIN:   -- you really have
 12  to let the witness answer to the questions in turn.
 13                 MR. JAMES LOCKYER:   I agree.
 14                 DR. CHARLES SMITH:   Yeah.
 15                 MR. JAMES LOCKYER:   I really don't need
 16  My Friend interrupting me to do that.  I'm conscious of
 17  it.
 18                 COMMISSIONER STEPHEN GOUDGE:   But let the
 19  Witness answer, Mr. Lockyer.
 20                 MR. JAMES LOCKYER:   Yes.
 21                 DR. CHARLES SMITH:   No, I -- I recognize
 22  the mistake.  I am very sorry for my role in the jury's
 23  decision making process.  I recognize that, Mr. Lockyer,
 24  and I want to make that very clear to you and to Mr.
 25  Mullins-Johnson.

1 2 CONTINUED BY MR. JAMES LOCKYER: 3 MR. JAMES LOCKYER: Can you look at Mr. 4 Mullins-Johnson, sir, and say that to him directly? 5 DR. CHARLES SMITH: I -- I could. 6 MR. JAMES LOCKYER: He's here. 7 DR. CHARLES SMITH: Could you -- could 8 you point him out to me? 9 MR. JAMES LOCKYER: Feel free. 10 DR. CHARLES SMITH: Could you stand, sir? 11 12 (BRIEF PAUSE) 13 14 DR. CHARLES SMITH: Sir, I don't expect 15 that you would forgive me, but I do want to make it -- 16 I'm sorry. I -- I do want to make it very clear to you 17 that I am profoundly sorry for the role that I played in 18 the ultimate decision that affected you. I am sorry. 19 MR. JAMES LOCKYER: Is this a good 20 time... 21 MR. WILLIAM MULLINS-JOHNSON: For my 22 healing, I'll forgive you but I'll never forget what you 23 did to me... 24 You put me in an environment where I could 25 have been killed any day for something that never

1 happened. You destroyed my family, my brother's 2 relationship with me and my niece that's still left and 3 my nephew that's still living. They hate me because of 4 what you did to me. I'll never forget that but for my 5 own healing I must forgive you. 6 DR. CHARLES SMITH: That is kind of you. 7 Thank you. 8 MR. JAMES LOCKYER: Is this a good time 9 to break, Mr. Commissioner? 10 DR. CHARLES SMITH: I'm sorry. 11 COMMISSIONER STEPHEN GOUDGE: We will 12 rise for fifteen minutes. 13 14 --- Upon recessing at 11:11 a.m. 15 --- Upon resuming at 11:40 a.m. 16 17 THE REGISTRAR: All rise. Please be 18 seated. 19 COMMISSIONER STEPHEN GOUDGE: Mr. 20 Lockyer...? 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: Thank you. 24 DR. CHARLES SMITH: Thank you. 25 MR. JAMES LOCKYER: One (1) of the things

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1 that I -- I thought I'd bring to your attention, sir, 2 during the -- the trial on Valin's case was some of the 3 reactions of the trial Judge to your evidence. 4 If we go to -- so it's the same transcript 5 that we were looking at before, if you still have that. 6 DR. CHARLES SMITH: I -- I'm sorry, I put 7 them away. 8 MR. JAMES LOCKYER: So it's Valin's case. 9 DR. CHARLES SMITH: Can -- 10 COMMISSIONER STEPHEN GOUDGE: Is it in 11 your -- 12 MR. JAMES LOCKYER: Page 1 -- 13 COMMISSIONER STEPHEN GOUDGE: -- Volume 14 IV? Or do you want to go to Valin's book? 15 MR. JAMES LOCKYER: Valin's book, yes. I 16 think that's what I'm.. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 19 (BRIEF PAUSE) 20 21 COMMISSIONER STEPHEN GOUDGE: Sorry, 22 let's -- 23 MR. JAMES LOCKYER: Documents. 24 COMMISSIONER STEPHEN GOUDGE: -- get 25 another volume, Dr. Smith, not Volume XXIII with Valin's

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1 name on it, but Volume V with -- 2 3 CONTINUED BY MR. JAMES LOCKYER: 4 MR. JAMES LOCKYER: I suspect it will be 5 in either, but could you go to page 112, sir. Page 522, 6 Mr. Registrar. 7 DR. CHARLES SMITH: Tab -- Tab 2, is 8 this? 9 MR. JAMES LOCKYER: Help, where are we? 10 DR. CHARLES SMITH: I'm not -- 11 MR. JAMES LOCKYER: Tab 4. 12 COMMISSIONER STEPHEN GOUDGE: Page...? 13 MR. JAMES LOCKYER: 112. 14 COMMISSIONER STEPHEN GOUDGE: Slash 112, 15 Dr. Smith. 16 DR. CHARLES SMITH: I have it, yes. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER STEPHEN GOUDGE: Page 112. 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: And you'll see, sir, 24 at line 20 there, in the midst of your evidence there's 25 an objection by the defence, Mr. O'Hara. You see that?

102

1 And the Court then says, in reaction to 2 the -- or in response to the objection, which is that -- 3 is sounds like the Crown's cross-examining you, the Court 4 says: 5 "Well, it does, but I sense this 6 witness exercising himself considerably 7 to be objective and to be professional, 8 and I do not have concern about the 9 form of the question in the context of 10 the evidence I've heard so for." 11 And then if we turn the page, sir, to the 12 next page, you'll see that the trial judge also excuses 13 your failure to do a report on the case. He says, at 14 line 20: 15 "Members of the jury, there is one (1) 16 small problem here, which is no 17 criticism. Ordinarily professional 18 witnesses provide a report, usually 19 immediately before their Court 20 attendance, which encapsulates the 21 evidence they are about to give, and in 22 this case, Dr. Smith, being very busy 23 and under considerable pressure, and 24 probably for other good reasons that 25 don't occur to me at the moment, was

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1 not able to provide that report, and 2 that's certainly no criticism because 3 it's his evidence that's going to 4 motivate the determination of this 5 matter, and -- that you have heard 6 today and not any report." 7 And then at the conclusion of your 8 evidence, sir, at -- at 535 or slash 125 for you, at the 9 bottom of the page, this is when you've completed your 10 evidence, the Court says: 11 "Doctor, I believe firmly in the 12 adversarial system, so I'm not going to 13 interfere with it, except to say that I 14 thank you for coming. I know you are 15 busy. I know there were problems." 16 And is it fair to say, Dr. Smith, that in 17 the course of these, I don't know, eighteen (18), 18 nineteen (19) years, that you -- well, maybe twenty (20) 19 years, even -- that you were giving evidence in different 20 cases, there were really only two (2) occasions that any 21 judge of any court actually challenged your evidence, and 22 that was in Amber's case, obviously -- 23 DR. CHARLES SMITH: Yeah. 24 MR. JAMES LOCKYER: -- was one (1) of 25 them.

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1 DR. CHARLES SMITH: Yes. 2 MR. JAMES LOCKYER: And I guess, although 3 I don't think you were there, Mr. Justice Trafford when 4 he delivered really a stinging critique of you in -- in a 5 case that he was trying, you're aware of that? 6 DR. CHARLES SMITH: Yes, in that one (1) 7 I believe the issue was not my evidence, but -- but my 8 tardiness. 9 MR. JAMES LOCKYER: Your delay, yes. 10 DR. CHARLES SMITH: Yes, I believe that's 11 -- but -- but I stand corrected. 12 MR. JAMES LOCKYER: Mm-hm. And are those 13 the only two (2) occ -- occasions, sir, that -- that you 14 couldn't -- you're aware of, until very recently -- 15 DR. CHARLES SMITH: Mm-hm. 16 MR. JAMES LOCKYER: -- obviously, that 17 the courts ever questioned you, your judgment, your 18 opinions? 19 DR. CHARLES SMITH: Let me -- let me 20 respond to it in as full a manner as I can. Obviously 21 there were times when in -- in court, a judge would have 22 directed or assisted me somehow in what I was 23 communicating or trying to communicate, or may have 24 pointed out that I was communicating information that may 25 have been appropriate -- inappropriate, I'm sorry. So I

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1 -- I can't -- I can't specifically think of that, but I - 2 - but I believe that that did happen from time to time. 3 MR. JAMES LOCKYER: That the fact is, as 4 we look back over that twenty (20) year period, there's 5 good reason to think that the courts found you very 6 convincing? 7 DR. CHARLES SMITH: Well, that is not 8 something that I could -- I could speak to, because of 9 course what -- what a judge determines is not something 10 that I would even necessarily know about. If it was a 11 jury, of course I wouldn't know the thinking, and if it 12 was a judge, unless it was communicated to me, I wouldn't 13 -- I wouldn't know of it. 14 I was not -- in many instances, when I 15 testified, I was never aware of what the outcome was, 16 because I was not invested in -- in knowing or learning 17 about the -- the outcome. And of course in that 18 situation then, if the judge made any comments that gave 19 weight to his or her thinking, that wouldn't be known to 20 me. 21 So the -- the long answer to it is, I do 22 recognize that there were these two (2) situations that 23 you referred to. I recognize at times judges in court 24 said things or directed me or limited me, and I recognize 25 that in the vast majority of instances there was no

106

1 feedback whatsoever, so I would not have assumed in the 2 absence of feedback that the judge necessarily thought 3 one way or the other. 4 MR. JAMES LOCKYER: You concede now that 5 you could no longer be qualified as a pediatric forensic 6 pathologist, is that right? 7 DR. CHARLES SMITH: I -- I don't practice 8 it. I -- I tried to -- to point out, for instance, to a 9 Crown attorney before I went into court, that I was not a 10 forensic pathologist, I was a pediatric pathologist, 11 because I don't have certification in forensic pathology. 12 And my practice is not limited to forensic 13 pathology. 14 MR. JAMES LOCKYER: And on -- on these 15 twenty (20) cases, sir, and particularly the nine (9) 16 that I'm involved in, you now have the opinions of 17 genuine forensic pathologists, including one (1) in 18 particular who specializes in pediatric forensic 19 pathology, you have a series of opinions that differ with 20 your opinions in twenty (20) cases. 21 You're aware of that, obviously? 22 DR. CHARLES SMITH: The reviewers you 23 mean? 24 MR. JAMES LOCKYER: Yes. 25 DR. CHARLES SMITH: And you're referring

107

1 to Dr. Whitwell, is that -- 2 MR. JAMES LOCKYER: As being one (1) -- 3 DR. CHARLES SMITH: -- is that the pers -- 4 MR. JAMES LOCKYER: -- in particular, 5 yes. 6 DR. CHARLES SMITH: Yes. Yes, I have -- 7 I've paid attention to -- to all of them. I was aware of 8 her -- of her work in -- in pediatric neuropathology and 9 so for me this was very insightful and educational to 10 look at -- at her views, because I certainly paid 11 attention to Dr. Geddes, who I believe was the -- the 12 lead author in the research that she was involved in. 13 MR. JAMES LOCKYER: And you're aware, 14 sir, that each and every one of them have concurred in 15 each others opinions in all of these cases. 16 DR. CHARLES SMITH: I -- I do not know 17 that, and I don't know what the decision-making process 18 was on that so I can't -- I can't say that I was aware of 19 it. 20 MR. JAMES LOCKYER: Well, you actually 21 critique it in your Will Say -- you didn't like it much - 22 - the system that was set up did you? 23 DR. CHARLES SMITH: The -- I recognized 24 in the methodology that there were some -- some limits to 25 the methodology.

108

1 MR. JAMES LOCKYER: But you were clearly 2 aware that they've all reviewed each other's reports? 3 DR. CHARLES SMITH: I -- 4 MR. JAMES LOCKYER: And concurred. 5 DR. CHARLES SMITH: It was my 6 understanding that it was a -- a consensus opinion, but I 7 couldn't say how that -- how that opinion was formed, no. 8 MR. JAMES LOCKYER: And did you know that 9 they've actually been asked here, sir, if they all concur 10 with each other's opinions on each case; at least, of the 11 nine (9) that I'm concerned with? 12 DR. CHARLES SMITH: I -- I don't -- I 13 don't remember hearing that testimony. 14 MR. JAMES LOCKYER: All right. Well, I 15 can tell you that half of -- 16 DR. CHARLES SMITH: I -- oh, I accept 17 that, because I certainly didn't hear all of the 18 testimony. 19 MR. JAMES LOCKYER: Because I'm -- I'm 20 trying to work out where you're coming from now, Mr. 21 Smith. You -- I'm not sure if you're conceding their 22 opinions or continuing to maintain your own opinions in 23 some of these cases or not. 24 DR. CHARLES SMITH: Well, I -- I thought 25 that that would have been reasonably clear from the --

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1 from my written evidence, what my -- what my view was. 2 But if there are uncertainties, we -- we can look at 3 those if that would assist you. 4 MR. JAMES LOCKYER: Well, you -- in your 5 evidence, through your own counsel -- you apologized, as 6 you did again this morning, to Valin's uncle, you 7 apologized to Joshua's mother, you, sort of, apologized 8 for what happened in Paolo's case. 9 But you didn't apologize with respect to 10 any of the other cases, and I'm wondering if that's 11 because you reject the opinions of the external 12 pathologists in those other cases or what. I don't know 13 what it is. 14 DR. CHARLES SMITH: Well, I -- without -- 15 without dealing with those cases specifically, I don't -- 16 because -- because there are a variety of situations 17 here. 18 I -- I can't -- I can't say what it is but 19 if you want to look at it case-by-case basis, I'm 20 certainly willing to indicate to you what my position was 21 and -- and is, if it's not clear, in my -- in my written 22 submission. 23 MR. JAMES LOCKYER: Well, in twenty (20) 24 of the cases, sir, they specific of the eighteen (18) -- 25 sorry, in eighteen (18) of the cases of the twenty (20),

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1 by my counting, they specifically disagree with what you 2 have certified to be the cause of death. 3 You're aware of that, are you? 4 DR. CHARLES SMITH: Yes. Yes. 5 MR. JAMES LOCKYER: It's kind of the key 6 issue that you're confronting when you do an autopsy -- 7 DR. CHARLES SMITH: Yes. Yes. 8 MR. JAMES LOCKYER: -- cause of death. 9 DR. CHARLES SMITH: Yes. 10 MR. JAMES LOCKYER: And you -- do you 11 disagree with them in any of those eighteen (18) cases? 12 DR. CHARLES SMITH: I -- I believe that 13 my written submission has indicated my agreement and 14 disagreement with the RCCO review on a case-by-case 15 basis. But if it is unclear to you -- 16 MR. JAMES LOCKYER: All right. 17 DR. CHARLES SMITH: -- we certainly can 18 go over it carefully so that -- so that you can 19 understand exactly what my position was and is. 20 MR. JAMES LOCKYER: Well, I'm trying to 21 get it generally, sir, so even today, you're prepared 22 to -- 23 COMMISSIONER STEPHEN GOUDGE: Hasn't he 24 said that he can't do it generally, Mr. Lockyer? You 25 asked it about three (3) times.

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1 MR. JAMES LOCKYER: I'm sorry I -- 2 COMMISSIONER STEPHEN GOUDGE: You've 3 asked the question -- 4 MR. JAMES LOCKYER: Yes. 5 COMMISSIONER STEPHEN GOUDGE: -- about 6 three (3) times, and the answer each time is "I got to do 7 it case-by-case". 8 9 10 CONTINUED BY MR. JAMES LOCKYER: 11 MR. JAMES LOCKYER: But it means though 12 that even today, sir, you're prepared to reject and dif - 13 - or differ -- reject I guess, the opinions of the 14 external reviews, is that right? 15 DR. CHARLES SMITH: I believe that on a 16 case-by-case basis, I have indicated what my opinion was 17 and is. And I believe that on a case-by-case basis, I 18 have indicated where I may disagree with the reviewers, 19 what the nature of that disagreement is. 20 But -- but please, Mr. Lockyer, do not -- 21 I -- I beg of you, do not walk away from -- from this 22 exchange thinking that I am not sensitive to suffering. 23 And I -- and I recognize that there has 24 been suffering, so I don't want to pretend that I am 25 disagreeing and, therefore, am insensitive to suffering.

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1 I want to make it clear that I have considered the 2 opinion of the reviewers. I have considered it very 3 carefully. 4 I have, at times, been humbled. I regard 5 it, uniformly, as an educational experience that I wish I 6 had had years ago, but I also recognize that -- that, at 7 times, my opinion was within the range of reason, and -- 8 and I believe that this document would indicate where my 9 opinion lies now. 10 MR. JAMES LOCKYER: Well, let's look at 11 Kenneth's case for a minute, sir, since -- 12 DR. CHARLES SMITH: All right. Can you - 13 - all right. 14 MR. JAMES LOCKYER: -- Kenneth's mom is 15 still in prison. And in Kenneth's case, sir, your 16 findings, in terms of cause of death -- your pathology 17 findings were -- or observations -- were exclusively 18 related to petechial hemorrhages on the thymus, the 19 pulmonary pleura, and epicardium. 20 Is that right? 21 DR. CHARLES SMITH: Well, if you can just 22 give me a second to pull up -- be -- because there are 23 enough asphyxia cases that I -- that I would be like to 24 be able to very quickly look at my report -- 25 MR. JAMES LOCKYER: If we go to --

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1 DR. CHARLES SMITH: -- so that I wouldn't 2 answer the wrong question. 3 COMMISSIONER STEPHEN GOUDGE: Do you want 4 look at your report or your -- 5 DR. CHARLES SMITH: My -- my autopsy 6 report, if I -- 7 MR. JAMES LOCKYER: PFP005902. I have it 8 down as Volume 15, Tab 2, but presumably it's in the name 9 of Kenneth at Tab 2 -- the last page, sir, so it's page 4 10 or 5 of the document. 11 COMMISSIONER STEPHEN GOUDGE: Slash 5 of 12 the document -- 13 MR. JAMES LOCKYER: Slash 5. 14 COMMISSIONER STEPHEN GOUDGE: -- Dr. 15 Smith. 16 DR. CHARLES SMITH: I -- yeah. Thank -- 17 18 CONTINUED BY MR. JAMES LOCKYER: 19 MR. JAMES LOCKYER: Your summary of 20 abnormal -- 21 DR. CHARLES SMITH: Thank you, sir. Yes. 22 MR. JAMES LOCKYER: -- findings, sir. 23 DR. CHARLES SMITH: Mm-hm. 24 MR. JAMES LOCKYER: In the context of 25 cause of death --

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1 DR. CHARLES SMITH: Yes. 2 MR. JAMES LOCKYER: -- are exclusively 3 related to petechial hemorrhages of those three (3) parts 4 of her internal organs, am I right? 5 DR. CHARLES SMITH: Of -- of Kenneth's 6 internal organs? 7 MR. JAMES LOCKYER: I'm sorry, her -- I 8 mean his, I'm sorry. 9 DR. CHARLES SMITH: Yes, of his -- his 10 internal organs. 11 MR. JAMES LOCKYER: Correct? 12 DR. CHARLES SMITH: Yes, I -- I believe 13 that I made it clear, that in Kenneth's case, of the 14 components that I used for the diagnosis of asphyxia. In 15 -- in his case, it was the nonspecific intrathoracic 16 petechiae and the circumstances that were -- that were 17 given to me, so those were the -- the two components of 18 that, yes. 19 MR. JAMES LOCKYER: Now, you never -- 20 DR. CHARLES SMITH: I'm sorry. 21 MR. JAMES LOCKYER: So -- so essentially 22 you're saying, I looked at the other evidence and 23 concluded from the other evidence -- not pathology 24 evidence, but other evidence -- that this must have been 25 a homicidal cause of death, am I right?

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1 DR. CHARLES SMITH: No, I -- no, I don't 2 believe I said it was a homicidal cause of death because 3 I -- I recognize that a significant issue is accident 4 versus non-accident. And I -- I believe I was correct in 5 communicating that this is a suspicious death, and I 6 believe that that opinion was supported by the reviewer. 7 So first off, I did not say it was a 8 homicide, but I said it was suspicious, and I believe 9 that's correct, and I believe the reviewers agree with 10 that. As to the -- as to the adequacy of the explanation 11 that was given, concerning the -- the bed clothing, I 12 believe I was very clear that that issue, which would be 13 accident or non-accident, or the -- the opinion on that 14 was one (1) which I did not give, but I believe I was 15 very clear that I deferred to the opinion of -- of a 16 respiratory physiologist. 17 And so while I certainly had my own 18 suspicions about that, I believe that -- that I was very 19 clear in that I could not provide an opinion that was -- 20 that was absolutely certain based on the components that 21 I had of a history in the nonspecific findings. 22 And I recognized all along that the -- 23 that one (1) of the two (2) components, which would be 24 rec -- which would be needed to make a diagnosis of 25 asphyxia, was also the component that would determine

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1 accident versus non-accident, and that I could not speak 2 to the -- to the importance, or the significance of that, 3 or the correctness or incorrectness of that, because that 4 was not my area. 5 So -- so I believe that I -- the reviewers 6 and I agree in the fact that it was suspicious. I 7 believe that I would agree with the reviewers, that a -- 8 a better practice which was not done then was to indicate 9 it was undetermined. 10 I believe I was very clear on that, on -- 11 on Monday as this was discussed. But I believe I was 12 also -- but I believe I was clear that the -- that the 13 ultimate issue in this one (1), accident versus non- 14 accident, was not my -- was not my opinion. 15 MR. JAMES LOCKYER: Are you finished? I 16 can't remember what I asked you now. I don't know if you 17 can. 18 DR. CHARLES SMITH: You were -- you were 19 trying to get me to respond to what -- to my -- as I 20 understood it, my view at the time in relation to the -- 21 to the reviewer's opinion. 22 MR. JAMES LOCKYER: You're aware of Dr. 23 Saukko's -- who's the primary pathologist who reviewed 24 this case, sir, on his opinion of this case? 25 That the cause of death, as I think you

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1 just said -- 2 DR. CHARLES SMITH: Undet -- 3 MR. JAMES LOCKYER: -- should have been -- 4 DR. CHARLES SMITH: -- undetermined. 5 MR. JAMES LOCKYER: -- undetermined? 6 DR. CHARLES SMITH: I accept that, yes. 7 Yes. 8 MR. JAMES LOCKYER: And that he says that 9 that is, his words, "non-controversial -- 10 DR. CHARLES SMITH: I agree that's -- 11 MR. JAMES LOCKYER: -- in the field of 12 pathology"? 13 DR. CHARLES SMITH: -- I agree that 14 that's the way it is now. 15 MR. JAMES LOCKYER: Mm-hm. 16 DR. CHARLES SMITH: That was not 17 something that was a widespread, or an accepted practice, 18 in Ontario in 1994. 19 If I was authoring this report today, I 20 would either use the terminology of undetermined, or no 21 anatomic cause of death, and I would attempt to 22 communicate the fact that the findings were suspicious. 23 Or -- but beyond that, the final issue would one (1) -- 24 was -- would be one (1) that would require the 25 integration of the pathology information with all of the

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1 other clinical, or circumstantial information. 2 MR. JAMES LOCKYER: Asphyxia, in your 3 report, sir, was really a buzz word for homicide, wasn't 4 it? 5 DR. CHARLES SMITH: Absolutely not. 6 MR. JAMES LOCKYER: Mm-hm. 7 DR. CHARLES SMITH: The Commissioner 8 asked me for my definition. I gave my definition. That 9 definition includes natural disease as well as accident 10 and non-accidental causes. 11 The -- it was very clear in my testimony, 12 and you also have testimony from Dr. Chiasson, which 13 indicates that within pediatric pathology, asphyxia is a 14 recognized word that encompasses natural disease, and 15 indeed, Sudden Infant Death Syndrome is recognized by 16 some people as being an asphyxial type of death, and it 17 also is recognized as being natural disease. 18 So the answer to your question is no, it 19 is not synonymous with homicide. It never has been in my 20 opinion. It never will be. 21 MR. JAMES LOCKYER: But it was your buzz 22 word in your summary of abnormal findings in your reports 23 for homicide that police acted on, as such -- 24 DR. CHARLES SMITH: Never. 25 MR. JAMES LOCKYER: -- in each case.

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1 DR. CHARLES SMITH: Never. 2 MR. JAMES LOCKYER: Mm-hm. 3 DR. CHARLES SMITH: Never. Asphyxia is a 4 term which I used based on a pathophysiologic definition. 5 It never connoted a manner of death; accident, non -- 6 accident, homicide, suicide, or natural disease. It 7 never did. 8 MR. JAMES LOCKYER: When we read your 9 evidence, sir, as a whole in Kenneth, it's pretty clear 10 what you're conveying to the jury, wasn't it? 11 DR. CHARLES SMITH: I -- I believe I -- 12 MR. JAMES LOCKYER: That this was a 13 homicide? 14 DR. CHARLES SMITH: -- I believe I was 15 conveying my suspicion, and I believe -- 16 MR. JAMES LOCKYER: Mm-hm. 17 DR. CHARLES SMITH: -- I was indicating 18 that the issue of accident versus non-accident was one 19 (1) which I could not answer. 20 MR. JAMES LOCKYER: And then you came up 21 -- do you remember as well in the -- when you gave 22 evidence in her case, she -- you came up with one (1) of 23 your familiar badges of petic -- microscopic petechial 24 hemorrhages in the neck as well in her case, albeit 25 didn't make your report?

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1 DR. CHARLES SMITH: I -- I'm -- I'm 2 sorry. I -- I don't recall that. 3 MR. JAMES LOCKYER: Mm-hm. 4 DR. CHARLES SMITH: You'll have to bring 5 me to my evidence on that to work through that. 6 MR. JAMES LOCKYER: I'm short of time, 7 sir, but you did, albeit's not in your report. 8 COMMISSIONER STEPHEN GOUDGE: Well, I 9 think -- are you going to take him to his evidence? 10 MR. JAMES LOCKYER: I can. I'm just a 11 bit low on time, that's all. 12 COMMISSIONER STEPHEN GOUDGE: It is your 13 choice. 14 MR. JAMES LOCKYER: I won't. It's there 15 on the record -- 16 COMMISSIONER STEPHEN GOUDGE: Okay. 17 MR. JAMES LOCKYER: -- Mr. Commissioner. 18 COMMISSIONER STEPHEN GOUDGE: I think we 19 are going to move on, Dr. Smith. 20 MR. JAMES LOCKYER: Mm-hm. 21 DR. CHARLES SMITH: All right. Thank 22 you. 23 24 CONTINUED BY MR. JAMES LOCKYER: 25 MR. JAMES LOCKYER: And in her case,

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1 being the mother's -- 2 DR. CHARLES SMITH: The -- I'm sorry, 3 yes. 4 MR. JAMES LOCKYER: -- case, sir. 5 DR. CHARLES SMITH: Mm-hm. 6 MR. JAMES LOCKYER: The sole basis for 7 all the conclusions that you were presenting to the jury 8 was the petechial hemorrhages on the three (3) internal 9 areas you identified in your report, and then you added 10 in microscopic petechial hemorrhages in the neck. 11 Is that right? 12 DR. CHARLES SMITH: Again, you're asking 13 me something in my testimony -- 14 MR. JAMES LOCKYER: Mm-hm. 15 DR. CHARLES SMITH: -- that I cannot 16 remember. If you want -- if you want my response to that 17 question, I -- I am going to have to go back and ready my 18 testimony on that, because I don't recall it. 19 MR. JAMES LOCKYER: Lets put it like 20 this: Those four (4) items, sir, are not a basis for a 21 pathological determination of homicide, at all. 22 Am I right? 23 DR. CHARLES SMITH: The -- now, I'm 24 sorry, the four (4) basis are the? 25 MR. JAMES LOCKYER: The three (3) you

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1 listed in your report, sir. 2 DR. CHARLES SMITH: The -- the 3 intrathoracic petechia -- 4 MR. JAMES LOCKYER: And the one (1) you 5 added in your -- 6 DR. CHARLES SMITH: -- the -- well I -- 7 without reading my evidence I can't -- I can't weight 8 that right now, because without reading it I don't know 9 what I have said about the possibility of resuscitation 10 or any other changes that could be attendant on medical 11 therapy, so -- so I -- 12 MR. JAMES LOCKYER: Could you concentrate 13 on the question I asked you, sir? 14 DR. CHARLES SMITH: Yes, I'm -- I'm 15 trying to. You've asked -- you said there's four (4) -- 16 MR. JAMES LOCKYER: Those four (4) 17 things -- 18 DR. CHARLES SMITH: -- four (4) 19 components, the three (3) are -- 20 MR. JAMES LOCKYER: -- are not -- 21 DR. CHARLES SMITH: -- the intrathoracic 22 petechia -- 23 COMMISSIONER STEPHEN GOUDGE: Why don't 24 you give him the four (4) components, Mr. Lockyer. 25 DR. CHARLES SMITH: Yes.

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1 MR. JAMES LOCKYER: I did, but I'll do it 2 again. 3 DR. CHARLES SMITH: Okay. 4 MR. JAMES LOCKYER: Yes. 5 DR. CHARLES SMITH: So there's four (4) 6 components -- 7 DR. CHARLES SMITH: Those components -- 8 COMMISSIONER STEPHEN GOUDGE: He'll give 9 them to your, Dr. Smith, and then you can answer. 10 11 CONTINUED BY MR. JAMES LOCKYER: 12 MR. JAMES LOCKYER: The petechial 13 hemorrhages on the three (3) internal organs, as 14 described in your summary -- the thymus, the pulmonary 15 pleura -- and the epicardium, and the microscopic 16 petechial hemorrhages that you talked about in your 17 evidence, are not a pathological basis to come up with a 18 conclusion of homicide at all. 19 Am I right? They're entirely non-specific 20 findings. 21 DR. CHARLES SMITH: Well -- I -- I don't 22 want to have to read my testimony here, so let me repeat 23 what I -- what I think I made clear, because -- 24 MR. JAMES LOCKYER: Could you answer the 25 question? I mean --

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1 DR. CHARLES SMITH: Yes, I'm going to. 2 I'm going to. 3 The three (3) components that make up the 4 diagnosis of asphyxia I believe are fairly clear. The -- 5 the intrathoracic petechia that we have here, supported 6 either by findings that would indicate the mechanisms of 7 asphyxia, or the circumstances. The mechanism of 8 asphyxia doesn't even, as -- as you've suggested, does 9 not indicate whether it's homicidal or non-homicidal 10 unless there are very specific lesions. 11 And they tend not to been seen in 12 pediatric pathology; the fingernail marks or fractured 13 hyoids, which of course do not occur in infants and young 14 children. 15 The ind -- those findings would point to 16 a mechanism of asphyxia. But that mechanism may be 17 accidental or non-accidental, and what could -- the 18 determination of homicide would be dependent upon the 19 interpretation of those in light of whatever the inf -- 20 information the coroner or the court had. 21 So you must not -- I -- please, you must 22 not regard the diagnosis of asphyxia in Kenneth's Case as 23 being necessarily homicidal. It is, I believe, a 24 diagnosis bade on -- based on accepted approaches to the 25 diagnosis of asphyxia, but the manner of death is not one

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1 which the term necessarily encompasses. 2 MR. JAMES LOCKYER: Dr. Saukko said, sir, 3 that: 4 "Dr. Smith doesn't know the cause of 5 death in this case." 6 Do you agree with that? 7 DR. CHARLES SMITH: Well, the cause of 8 death as I would write it now would be undetermined. I 9 recognize that. 10 I would -- but in the presence of an 11 undetermined I would also write a report saying the 12 findings at autopsy are in the pattern of asphyxia. The 13 -- and that information would have to be interpreted in 14 light of other information. And though the findings are 15 suspicious, the ultimate determination is not a 16 pathologic one. 17 MR. JAMES LOCKYER: I presume you've read 18 you evidence in this case in preparation for your 19 testimony, sir? 20 DR. CHARLES SMITH: Well, I've -- I've 21 read evidence, but I -- but -- but I've read a lot of 22 evidence, and so -- and so if there's something specific 23 you'd like to direct my attention to, I'd be happy to 24 look at that. 25 MR. JAMES LOCKYER: Are you worried in

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1 this case, sir, that you've -- you could have been the 2 cause of a miscarriage of justice? 3 DR. CHARLES SMITH: I don't know enough 4 about what has gone on to know -- to know what -- what my 5 role would have been. I believe that I communicated, 6 adequately, my opinion and the limits of my opinion but 7 if there's some concern that you have, I would be pleased 8 to look at that with you. 9 MR. JAMES LOCKYER: You don't think you 10 informed the jury, sir, of your satisfaction that this 11 was a case of homicide. 12 DR. CHARLES SMITH: We would -- we would 13 need to go back and look at that, Mr. Lockyer. 14 MR. JAMES LOCKYER: I can't read you a 15 whole transcript of your evidence, sir, which goes on for 16 pages and pages and pages. 17 DR. CHARLES SMITH: I'm -- 18 COMMISSIONER STEPHEN GOUDGE: I think he 19 has answered that question, Mr. Lockyer. 20 DR. CHARLES SMITH: Mm-hm. 21 COMMISSIONER STEPHEN GOUDGE: If there is 22 something specific you want to take him to, take him to 23 it. 24 MR. JAMES LOCKYER: I am really 25 interested, Mr. Commissioner, in how he feels now about

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1 whether he contributed, potentially, here to a 2 miscarriage of justice -- 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 MR. JAMES LOCKYER: -- for this lady. 5 COMMISSIONER STEPHEN GOUDGE: Has he not 6 answered that? Is there anything more you want to say in 7 answer to that? 8 DR. CHARLES SMITH: The issue of 9 miscarriage of justice is one which of course is a legal 10 issue, and I -- and I can't speak to it apart from the 11 pathology and the opinion that I've given. I think I've 12 made those -- those points clear. 13 14 CONTINUED BY MR. JAMES LOCKYER: 15 MR. JAMES LOCKYER: What about the cases, 16 sir, where you claimed that the Shaken Baby Syndrome 17 applied? Are you now troubled that in those cases, sir, 18 you -- your opinions could have contributed to a 19 miscarriage of justice? Take Gaurov's case, for example. 20 DR. CHARLES SMITH: Yes. 21 MR. JAMES LOCKYER: Is that something of 22 concern to you or not -- in his case? 23 DR. CHARLES SMITH: The -- in Gaurov's 24 case, I believe that my opinion was in the mainstream of 25 the opinions that were given then.

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1 MR. JAMES LOCKYER: Yeah, fine, but -- 2 DR. CHARLES SMITH: The -- the issue as 3 to the diagnostic criteria -- the certainty of the 4 diagnostic criteria and how that would be interpreted by 5 a Court in light of all of the evidence available to that 6 Court -- is not something that I can -- I can comment on. 7 If -- if it's appropriate to review every 8 Shaken Baby Syndrome case that I've done or has been done 9 in Ontario -- every fatal case and non-fatal case -- 10 that's not something that I can comment on. 11 But I do believe, that in Gaurov's case, 12 the opinion I gave represented the science at the time, 13 to the extent that I could review it. I can well 14 understand that -- that that opinion may well fit within 15 a mainstream of opinion. But that's not -- you know, 16 that's not for, you know, that -- I won't -- but the 17 issue there is if it's appropriate to review it then -- 18 then I think that's a decision that should be made by the 19 appropriate people in the appropriate circumstances. 20 But once again, I want to underscore here 21 that I am not insensitive to any suffering that had 22 occurred, and I -- and -- and I knew, from the very 23 beginning of this case, that Gaurov's father, by virtue 24 of what happened before his son's death, was in a very 25 difficult situation, and I am not insensitive to that.

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1 MR. JAMES LOCKYER: Well, I'm more 2 worried about his present situation, sir, and in his 3 case, are you aware that you didn't even have the triad 4 in his case, as Dr. Pollanen has pointed out to us? Are 5 you aware of that? I'll take you to it if you're not. 6 7 (BRIEF PAUSE) 8 9 MR. JAMES LOCKYER: Why don't we go to 10 it? The evidence of Dr. Pollanen, December 5th, 2007, 11 and it's in -- 12 DR. CHARLES SMITH: First of all, can I - 13 - can I -- 14 MR. JAMES LOCKYER: The documents that 15 I'm -- 16 COMMISSIONER STEPHEN GOUDGE: Do you 17 want to get your own post-mortem report? 18 DR. CHARLES SMITH: I -- I would -- it -- 19 it would help me. It would help me, yes, if I could -- 20 if I could -- 21 22 CONTINUED BY MR. JAMES LOCKYER: 23 MR. JAMES LOCKYER: I am going to take 24 you to the documents in your document, sir, -- 25 DR. CHARLES SMITH: Oh, okay.

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1 MR. JAMES LOCKYER: -- that we've given 2 you. 3 DR. CHARLES SMITH: Yes, okay. 4 MR. JAMES LOCKYER: Go to Volume VI, look 5 at Tab 8, sir, page 46 of Dr. Pollanen's evidence of 6 December 5th, 2007. 7 MS. JANE LANGFORD: Mr. Commissioner, 8 could Dr. Smith be given a copy of his post-mortem report 9 first before we -- 10 COMMISSIONER STEPHEN GOUDGE: Yes. Your 11 own report will be in Gaurov's volume. Do you have that, 12 Dr. Smith? It is a thinner one. It looks like this. 13 It's a black --. I do not know if it will be on your 14 desk or not. 15 DR. CHARLES SMITH: I -- I'm sorry, I was 16 looking in the wrong spot. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 DR. CHARLES SMITH: Yes. First -- 19 MR. ROBERT CENTA: Tab 6. 20 DR. CHARLES SMITH: Tab -- 21 COMMISSIONER STEPHEN GOUDGE: And it is 22 at Tab 6 of that volume. 23 24 (BRIEF PAUSE) 25

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1 COMMISSIONER STEPHEN GOUDGE: And where 2 in Dr. Pollanen's evidence? 3 MR. JAMES LOCKYER: Page 46, Mr. 4 Commissioner. 5 DR. CHARLES SMITH: Tab 6, page 40 -- 6 COMMISSIONER STEPHEN GOUDGE: That's your 7 post-mortem report? 8 DR. CHARLES SMITH: Yes, I'm -- I'm very 9 quickly -- 10 COMMISSIONER STEPHEN GOUDGE: Get that 11 out and then get Dr. Pollanen's evidence out, as well. 12 Now, Dr. Pollanen's evidence -- 13 DR. CHARLES SMITH: Yes. 14 COMMISSIONER STEPHEN GOUDGE: -- is in 15 the white-back volume, Volume VI, Tab 8, at page -- 16 DR. CHARLES SMITH: Okay, I'm -- 17 COMMISSIONER STEPHEN GOUDGE: -- at page 18 46. 19 DR. CHARLES SMITH: Okay. I think I have 20 it. Okay, let's -- now if you can keep going, sir, thank 21 you. 22 23 CONTINUED BY MR. JAMES LOCKYER: 24 MR. JAMES LOCKYER: And Dr. Pollanen 25 said, at line 13, sir:

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1 "In the Gaurov case -- " 2 DR. CHARLES SMITH: Oh, I'm -- I'm sorry, 3 here, I've suddenly -- which page now? 4 MR. JAMES LOCKYER: 46. 5 DR. CHARLES SMITH: 40 -- 6 COMMISSIONER STEPHEN GOUDGE: At the 7 bottom of the page, 46. Do you see the number 46, lower 8 right? 9 DR. CHARLES SMITH: I'll have it in a 10 moment. Yes, okay. Yes, okay, keep going. 11 MR. JAMES LOCKYER: Well, we haven't got 12 it up on the screen yet. 13 DR. CHARLES SMITH: All right. 14 MR. JAMES LOCKYER: It's December 5th, 15 2007. 16 COMMISSIONER STEPHEN GOUDGE: Why don't 17 you go ahead and then -- 18 19 CONTINUED BY MR. JAMES LOCKYER: 20 MR. JAMES LOCKYER: Sure. 21 DR. CHARLES SMITH: Okay. 22 MR. JAMES LOCKYER: Dr. Pollanen said: 23 "So in the Gaurov case, which is the 24 shaken baby issue, one (1) of the 25 issues there that we'll discuss later

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1 is the presence of the triad. A group 2 of three (3) findings is often used as 3 evidence to support the presence of 4 Shaken Baby Syndrome. Yet in and at 5 autopsy, indeed, Gaurov had the triad, 6 but on initial admission to hospital, 7 one (1) element of the triad was absent 8 on initial examination. 9 MR. SANDLER: And that was the retinal 10 hemorrhaging? 11 DR. POLLANEN: Correct. Now that 12 leads to one (1) of two (2) 13 possibilities; one (1) is that the 14 doctor who examined the back of the eye 15 simply missed them which sometimes 16 happens, or that they weren't there and 17 they developed subsequently through 18 another process. And there is, in 19 fact, in the case evidence of another 20 process that could produce them which 21 was brain swelling. So this actually 22 does provide an opportunity then to 23 revisit the diagnosis. Is there an 24 alternate cause, for example, that's 25 not Shaken Baby Syndrome?"

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1 Were you aware of that, sir, Dr. 2 Pollanen's evidence in that regard? 3 DR. CHARLES SMITH: Well, I -- no, I 4 wasn't aware of his evidence, but as -- I was aware of 5 the issue on Gaurov that when he first came to hospital, 6 whether the ophthalmic examination was performed in such 7 a way that, in fact, it was a thorough examination of -- 8 of the eyes, and so I do remember that -- that 9 possibility, or that discussion, or controversy, or 10 uncertainty. 11 MR. JAMES LOCKYER: You mean back at the 12 time, is that what you're saying? 13 DR. CHARLES SMITH: Yes, I -- I do 14 remember -- I do remember that, yes. 15 MR. JAMES LOCKYER: And did you make any 16 reference to it in your autopsy reports? 17 DR. CHARLES SMITH: Well, of course not, 18 because that is clinical information in a chart. By the 19 time Gaurov died, the ophthalmologist had done a full 20 ophthalmic examination as -- or as full as could be done, 21 and there were findings there. 22 The issue as to whether they were present 23 and missed -- or absent is not one (1) that I can comment 24 on because that's an ophthalmologists's domain, not mine. 25 MR. JAMES LOCKYER: But the

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  1  ophthalmologist didn't get to look at Gaurov until long
  2  after his initial hospital admission, obviously --
  3                 DR. CHARLES SMITH:   Yes, but the eyes --
  4                 MR. JAMES LOCKYER:   -- so --
  5                 DR. CHARLES SMITH:   -- as I understood,
  6  were examined --
  7                 MR. JAMES LOCKYER:   Please, let -- let me
  8  finish.
  9                 DR. CHARLES SMITH:   Oh, I'm sorry.
 10                 MR. JAMES LOCKYER:   All right.  So I'm --
 11  I'm quite surprised to hear you saying what you're
 12  saying, that despite what you knew at the time and
 13  despite your reliance on the existence of the triad to
 14  come to your cause of death, you failed to note that the
 15  existence of one (1) of the triad may not have even been
 16  there at the time of the initial admission.
 17                 DR. CHARLES SMITH:   No, my autopsy
 18  diagnosis is based on my anatomic findings.
 19                 MR. JAMES LOCKYER:   Mm-hm.
 20                 DR. CHARLES SMITH:   My anatomic findings
 21  include findings which have a significant association
 22  with Shaken Baby Syndrome that also could not be seen by
 23  the ophthal -- the ophthalmologist at the time.
 24                 And so I recognize, in our discussion,
 25  there was uncertainty as to the -- to the initial

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1 observations, but my report adequately matches the 2 diagnostic criteria for Shaken Baby Syndrome for an 3 anatomic pathologist. 4 MR. JAMES LOCKYER: And is adequately 5 informative for the subsequent readers, in your view. 6 DR. CHARLES SMITH: Well, this is the -- 7 the report is -- is an accurate documentation of the 8 anatomic findings, and it was done to allow the reader to 9 understand what, anatomically, was found. 10 The issue of Shaken Baby Syndrome is -- or 11 a discussion on that is not something which was part of 12 the reports then so the certainty of diagnosis, the 13 interpretation of findings and the -- and the correlation 14 of findings with the clinical history was not part and 15 parcel of that process. 16 MR. JAMES LOCKYER: Is that why we found 17 -- and we looked at his notes before, sir -- Detective 18 Line's notes for March 23/'92 which was two (2) days 19 after your autopsy that he recorded you as having 20 misgivings about the criminal element of the case and has 21 struggled; that you have struggled with this being a 22 criminal act that caused Gaurov's death? 23 DR. CHARLES SMITH: That -- that, sir, is 24 -- does not reflect the anatomic findings that -- that 25 reflects as best I remember it. The question that was

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1 put to me, or the issue that was put to me is which was, 2 how violent is this crime or is -- I should -- I take 3 that back -- how violent is this event in this -- in a 4 baby of this age. 5 And -- and so, as I recall those 6 discussions and I believe they may also, if you have the 7 documentation, include Dr. Huyer, I believe he was also 8 part of those -- that my uncertainty related to the 9 questioning from Detective Line that would have addressed 10 for them an important issue which was intent. 11 And I was attempt -- as I recall -- and it 12 is not a perfect recollection -- but as I recall, the 13 issue for me was trying to help them understand how the 14 pathology could address for them what was, from their 15 point, an important question. 16 And so my response that he has recorded, 17 as I recall that, is -- is my opinion, at the time, based 18 on his questioning, not the anatomic findings. 19 COMMISSIONER STEPHEN GOUDGE: You're 20 running out of time, Mr. Lockyer. 21 MR. JAMES LOCKYER: I know. I reckon I 22 have another four (4) minutes. Is that right -- 23 COMMISSIONER STEPHEN GOUDGE: Yes. 24 MR. JAMES LOCKYER: -- Mr. Commissioner? 25

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1 CONTINUED BY MR. JAMES LOCKYER: 2 MR. JAMES LOCKYER: And tell me, did you 3 -- so -- so he didn't record it very well is what you're 4 saying? 5 DR. CHARLES SMITH: Well, I have no idea 6 how he recorded it. I've just seen some notes but -- 7 MR. JAMES LOCKYER: Right. That's how he 8 recorded it. 9 DR. CHARLES SMITH: -- but how that was 10 recorded or understood, I can't answer, but I do remember 11 discussions that centred on the issue as to how pathology 12 could help them interpret what was an important question 13 for them. 14 MR. JAMES LOCKYER: And did you tell 15 Detective Line about the controversy or -- iss -- or 16 about the -- the question as to whether there had been 17 retinal haemorrhages in Gaurov when he'd arrived at the 18 hospital? 19 DR. CHARLES SMITH: I -- I have no 20 recollection -- 21 MR. JAMES LOCKYER: Mm-hm. 22 DR. CHARLES SMITH: -- of the 23 specificities of that conversation. You would have to 24 ask Detective Line. I believe that my information to him 25 was based on pathology. I believe that he had

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1 information from another person whose name I've suggested 2 to you that dealt with the clinical information because 3 they would be more familiar with that than I. 4 MR. JAMES LOCKYER: Suffice it to say, he 5 didn't record you as telling him any such things? 6 DR. CHARLES SMITH: You -- you have his - 7 - you -- you would have presumably his notes or all of 8 his notes or may have even had -- had access to an 9 interview you're -- you -- I don't have all of the 10 information-base for this. I've given you my best 11 recollection. 12 MR. JAMES LOCKYER: Sir, in other 13 inquiries that have been held in Canada into wrongful 14 conviction cases, they've examined police culture and 15 Crown culture and the role that those two (2) things can 16 play in wrongful convictions; do you understand that? 17 DR. CHARLES SMITH: You're -- you are 18 telling me something that I don't know. 19 MR. JAMES LOCKYER: And in particular, 20 how police and Crowns can develop a single-minded belief 21 in the rightness and indeed, righteousness of their 22 cause, all right? That's been something that's been 23 looked at. 24 DR. CHARLES SMITH: Are you asking me or 25 telling me?

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1 MR. JAMES LOCKYER: I'm telling you. 2 DR. CHARLES SMITH: Thank you. Yes. 3 MR. JAMES LOCKYER: I want to ask you, 4 sir, though if the same kind of culture existed in your 5 profession within the Hospital for Sick Children and in 6 the Chief Coroner's office, a culture wherein there was a 7 single-minded belief in the rightness of your cause and 8 their cause and the righteousness of your cause and their 9 cause in solving cases of babies who died unexpectedly. 10 DR. CHARLES SMITH: I cannot speak for 11 the police or the Crown attorneys. 12 MR. JAMES LOCKYER: I'm not asking you 13 to. 14 DR. CHARLES SMITH: I can speak for 15 myself -- 16 MR. JAMES LOCKYER: Mm hm. 17 DR. CHARLES SMITH: -- and the answer is 18 no. I believe that I -- the record shows, and I've given 19 you some examples but by no means anywhere near all the 20 examples, where the rightness of my cause centred on one 21 (1) thing and one (1) thing only and that was getting the 22 diagnosis right. 23 And I was supported in that by the Office 24 of the Chief Coroner. I did not perceive a bias on their 25 part. I believe that my approach of trying to get a

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1 right answer was also unbiased. 2 I have recognized here there are times 3 when my decision-making or my diagnostic formulation was 4 in error. But never, never was there the suggestion that 5 there was a righteous cause that I engaged in with the 6 Office of the Chief Coroner, with the police, with Crown 7 attorneys, with anyone period. 8 COMMISSIONER STEPHEN GOUDGE: Your time's 9 up. 10 MR. JAMES LOCKYER: All right. Thank 11 you. 12 COMMISSIONER STEPHEN GOUDGE: Ms. Silver. 13 14 CROSS-EXAMINATION BY MS. CAROLYN SILVER: 15 MS. CAROLYN SILVER: Good afternoon, Dr. 16 Smith. I'm Carolyn Silver. I represent the College of 17 Physicians and Surgeons. 18 DR. CHARLES SMITH: Yes. Good afternoon. 19 MS. CAROLYN SILVER: I want to start by 20 talking about the issue of jurisdiction of the College to 21 investigate the complaints that were made against you, 22 Dr. Smith. 23 DR. CHARLES SMITH: Yes. 24 MS. CAROLYN SILVER: And it was your 25 position that the College should not assume jurisdiction

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1 over the complaint made by DM, correct? 2 DR. CHARLES SMITH: In the beginning, 3 yes, that was -- that was the position that I believed to 4 be -- to be an appropriate interpretation or the 5 interpretation that I understood and was given, yes. 6 MS. CAROLYN SILVER: I'm suggesting to 7 you that you didn't change your position on that issue; 8 that you maintained that position at the beginning in 9 1992 and then later after the complaint was sent back to 10 the College to investigate by HPARB. 11 Do you agree with that? 12 DR. CHARLES SMITH: The -- I -- I 13 recognized that -- that there was someone to whom I had 14 to respond. The jurisdictional issue, by that time, was 15 one which was -- was one which I could not, in and of 16 myself, adequately address. 17 But I do -- I did recognize that there 18 were some differences of opinion on that and so I -- I -- 19 the position I took was the one which I best understood 20 from my legal counsel. 21 MS. CAROLYN SILVER: Just a simple 22 question, Dr. Smith. At the beginning in 1992, when you 23 first responded to the DM complaint, it was your position 24 that the College should not assume jurisdiction over that 25 complaint. True?

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1 DR. CHARLES SMITH: That's correct. 2 MS. CAROLYN SILVER: And I'm suggesting 3 to you that even later when you responded to the 4 complaint in 2001, you reiterated your position that the 5 complaint was not the appropriate subject matter for the 6 College to entertain and pursue, correct? 7 DR. CHARLES SMITH: If -- if we -- if we 8 can look at that -- I -- I don't -- I don't want to -- to 9 necessarily disagree with you. I want to be -- I want to 10 be sure that I am -- am giving the right answer to a 11 question which at that point has become confused for me 12 because I -- 13 MS. CAROLYN SILVER: Fair enough. You 14 don't' recall at this point, is that what you're saying 15 without going to the document? 16 DR. CHARLES SMITH: Well I -- I do know 17 that it was -- it was a live issue for the Office of the 18 Chief Coroner, because it involved not only me, but -- 19 but others as well. Mm-hm. 20 MS. CAROLYN SILVER: I'm only talking 21 about your position to the College -- 22 DR. CHARLES SMITH: Mm-hm. 23 MS. CAROLYN SILVER: -- Dr. Smith, so if 24 we could just focus on that. 25 DR. CHARLES SMITH: Yes.

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1 MS. CAROLYN SILVER: I don't need to take 2 you to your first response in 1992, correct? 3 DR. CHARLES SMITH: No. No, I recognize 4 that. 5 MS. CAROLYN SILVER: You've agreed that 6 you told the College you shouldn't take jurisdiction, 7 correct? 8 DR. CHARLES SMITH: Yes. Yes. 9 MS. CAROLYN SILVER: So then let's go to 10 PFP146324, and that is in Volume VII of Tab 20 for you, 11 Dr. Smith. 12 DR. CHARLES SMITH: Volume VII. 13 COMMISSIONER STEPHEN GOUDGE: Ms. 14 Langford, do you want to see if you can give him a hand 15 with the volume? Have you got it there, Dr. Smith? 16 DR. CHARLES SMITH: I -- yes, I think -- 17 oh, yeah. 18 COMMISSIONER STEPHEN GOUDGE: Okay. 19 DR. CHARLES SMITH: Okay. Volume VII. 20 Tab 20, did you say? 21 22 CONTINUED BY MS. CAROLYN SILVER: 23 MS. CAROLYN SILVER: Yeah. It should be 24 a letter dated March 2nd, 2001. Do you see that? From 25 you to Elizabeth Doris at the College?

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1 DR. CHARLES SMITH: Yes. Yes. 2 MS. CAROLYN SILVER: And if you could 3 turn with me to page 7 at the bottom of that letter, Dr. 4 Smith. 5 DR. CHARLES SMITH: Yes. Mm-hm. 6 MS. CAROLYN SILVER: And you say to the 7 College -- this is a response that you wrote yourself, 8 Dr. Smith? 9 DR. CHARLES SMITH: Well, obviously, I -- 10 I wrote it with the assistance of -- of counsel, yes. 11 But it represents my -- my position as best I -- as best 12 I recall it, yes. 13 MS. CAROLYN SILVER: And you wrote: 14 "Finally I would submit that the 15 substance of..." 16 Let's just call it the complaint. 17 "...is not appropriate subject matter 18 for this College to entertain and 19 pursue." 20 You see that, Dr. Smith? 21 DR. CHARLES SMITH: Yes. Yes. 22 MS. CAROLYN SILVER: And that's what I 23 was suggesting to you. 24 DR. CHARLES SMITH: Mm-hm. 25 MS. CAROLYN SILVER: So do you now agree

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1 that even in March of 2001 after the complaint had been 2 sent back by HPARB to the College to investigate -- 3 DR. CHARLES SMITH: Mm-hm. 4 MS. CAROLYN SILVER: -- you took the 5 position that it was not appropriate for the College to 6 investigate the complaint, correct? 7 DR. CHARLES SMITH: I -- I expressed that 8 reservation, and I did so at the end of responding to the 9 complaint. 10 So I was trying to be sensitive to the 11 College, but also I was trying to express ongoing 12 uncertainty as to the -- as to what the jurisdiction may 13 be, but it was not to -- not to -- I -- but I did so 14 within the context of being -- of responding to the 15 College, so they could go forward. 16 MS. CAROLYN SILVER: Well, I understand 17 that you responded to the complaint, Dr. Smith, correct? 18 DR. CHARLES SMITH: Yes. 19 MS. CAROLYN SILVER: You didn't refuse a 20 response, correct? 21 DR. CHARLES SMITH: No. No, I didn't. 22 Yes. 23 MS. CAROLYN SILVER: Because you knew the 24 College was pursuing its investigation, correct? 25 DR. CHARLES SMITH: Yes.

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1 MS. CAROLYN SILVER: And you wanted them 2 to have your position on the complaint, correct? 3 DR. CHARLES SMITH: Yes. 4 MS. CAROLYN SILVER: And I'm simply 5 suggesting to you, and I thought that would be -- 6 DR. CHARLES SMITH: Mm-hm. 7 MS. CAROLYN SILVER: -- easy for you to 8 agree with, Dr. Smith, is that you took the position in 9 that response that the -- 10 DR. CHARLES SMITH: Yes. 11 MS. CAROLYN SILVER: -- complaint was not 12 the appropriate subject matter for the College to 13 entertain and pursue. Is that not correct? 14 DR. CHARLES SMITH: Yes, that's correct. 15 MS. CAROLYN SILVER: And that's the same 16 position you maintained throughout with respect to this 17 complaint. Fair enough? 18 DR. CHARLES SMITH: I believe that -- I 19 believe that -- that's correct, yes. 20 21 (BRIEF PAUSE) 22 23 MS. CAROLYN SILVER: And turning to your 24 first response to the complaint -- that same complaint, 25 and that is PFP302673. It's a letter you wrote to the

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1 College May 4th, 1992, and I believe you will find it in 2 Volume I at Tab 3. 3 DR. CHARLES SMITH: I -- I have this, 4 yes. Mm-hm. Yes. 5 MS. CAROLYN SILVER: And in addition to 6 taking the position that the College should not assume 7 jurisdiction, which we've agreed with, correct, Dr. 8 Smith? 9 DR. CHARLES SMITH: Yes. 10 MS. CAROLYN SILVER: You also suggested 11 that the College speak to Dr. Young about the case. 12 DR. CHARLES SMITH: Yes. I believe I 13 did, yes. 14 15 (BRIEF PAUSE) 16 17 MS. CAROLYN SILVER: And it was your 18 understanding that he was familiar with the case, 19 correct? 20 DR. CHARLES SMITH: Yes, he was familiar 21 with the case. And he and I had discussed jurisdictional 22 issues at that point. Yes. 23 MS. CAROLYN SILVER: And you knew that 24 Dr. Young was supportive of the position you had taken in 25 that case, correct?

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1 DR. CHARLES SMITH: The diagnosis, or -- 2 or the position concerning the College? 3 MS. CAROLYN SILVER: Not the 4 jurisdictional issue. 5 DR. CHARLES SMITH: Not the -- but the 6 diagnosis you mean? 7 MS. CAROLYN SILVER: Yes. 8 DR. CHARLES SMITH: Yes. Yes, I 9 recognized that. 10 MS. CAROLYN SILVER: And you also knew he 11 was -- he was supportive about the position with respect 12 to jurisdiction? You two (2) were on the same page on 13 that issue as well, correct? 14 DR. CHARLES SMITH: It was my 15 understanding that he felt this was a jurisdictional 16 issue that, in part or if not in whole, was -- was 17 perhaps his -- or that side of the -- of the system as 18 opposed to College, yes. 19 20 (BRIEF PAUSE) 21 22 MS. CAROLYN SILVER: And then you wrote 23 another letter, Dr. Smith, in which you responded to the 24 response by DM, and that's PFP147101. 25 DR. CHARLES SMITH: Can you give me a

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1 Tab? 2 3 (BRIEF PAUSE) 4 5 MS. CAROLYN SILVER: And just turning to 6 page 2 of that letter. 7 DR. CHARLES SMITH: Oh, all right. 8 MS. CAROLYN SILVER: In the fifth 9 paragraph, where it says: 10 "The College of Physicians and Surgeons--" 11 DR. CHARLES SMITH: Yes. 12 MS. CAROLYN SILVER: 13 "-- is caught in a difficult situation." 14 And that's where you say: 15 "You should seek the wise counsel of the 16 Chief Coroner, Dr. Young." 17 DR. CHARLES SMITH: Mm-hm. 18 MS. CAROLYN SILVER: And you say: 19 "He became aware of Amber's death in 20 August 1988 and has an excellent 21 knowledge of the issues and problems of 22 this case." 23 DR. CHARLES SMITH: Yes. 24 MS. CAROLYN SILVER: And was it your 25 understanding that Dr. Young was familiar with the

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1 decision of Jud -- Justice Dunn? 2 DR. CHARLES SMITH: Well, I believe -- I 3 believe he would have been familiar with the decision, 4 yes. 5 MS. CAROLYN SILVER: Had you discussed it 6 with him? 7 DR. CHARLES SMITH: I have no specific 8 recollection of that at that time, because I know it was 9 discussed with -- with him at various times. So I -- I 10 can't tell you when it was first discussed or what the -- 11 what the discussions were, but I -- but I do remember it 12 was discussed. 13 MS. CAROLYN SILVER: And when you say in 14 this letter, that Dr. Young has excellent knowledge of 15 the issues and problems in this case, I take it, in part, 16 what you're referring to is Dr. Young was aware that 17 there'd been a number of experts that had testified for 18 the defence that hadn't agreed with your evidence? 19 DR. CHARLES SMITH: Well, I'm -- I'm not 20 sure that that's necessarily what that line means. The - 21 - there were issues or problems with the case right from 22 the very beginning when the local coroner was involved in 23 it, and that was also part of the complaints. 24 So the issues were, in fact, issues that 25 began in -- at the time of death and extended much beyond

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1 that, so -- so I had obviously discussed them with Dr. 2 Young, because -- because I was aware that his opinion on 3 jurisdiction was such that -- that he regarded this as 4 being, perhaps, some of his responsibility. 5 So -- so that sentence is -- is correct to 6 the -- with the -- with the recognition that he and I had 7 discussed various issues and problems. 8 MS. CAROLYN SILVER: Including Dr. -- 9 including Justice Dunn's decision, you had discussed it 10 with him? 11 DR. CHARLES SMITH: The -- yeah, the -- 12 the acquittal, and -- and we had discussed the acquittal. 13 I could not tell you what the nature of that discussion 14 was, but he -- he was certainly aware of it. And I was 15 certainly aware of it. 16 MS. CAROLYN SILVER: And were you aware 17 that Dr. Young wrote to the College in March of 1998, and 18 the document number is 145565, and I think you will find 19 that in your Volume VII at Tab 7, Dr. Smith. 20 DR. CHARLES SMITH: Yes, I -- I see that. 21 Mm-hm. 22 MS. CAROLYN SILVER: And that's a letter 23 that Dr. Young wrote asserting what we just agreed was 24 both of your positions, but the CPSO, the College didn't 25 have jurisdiction to investigate the complaint by DM in

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1 that case? 2 DR. CHARLES SMITH: Yes, I -- I see this, 3 I -- I can't say that I -- I saw it at the time because I 4 have no specific recollection of it, but yes, I see that 5 letter. 6 MS. CAROLYN SILVER: So -- 7 DR. CHARLES SMITH: And when it -- 8 DR. CHARLES SMITH: -- you don't -- 9 DR. CHARLES SMITH: -- when the issue 10 came up some six (6) years later again, yes. 11 MS. CAROLYN SILVER: Okay. So you're not 12 sure, to be fair, whether you were aware at the time that 13 Dr. Young wrote to the College and stated that same 14 position about jurisdiction? 15 DR. CHARLES SMITH: Well, I -- I knew 16 that -- that when the issue recurred some time later that 17 was his position or that was the position, I should say, 18 of the Office of the Chief Coroner. I can't be more 19 specific about it in my recollection than that, but I 20 certainly accept this letter as representing his 21 position. 22 MS. CAROLYN SILVER: It was -- I will try 23 and make it a more simple question. 24 DR. CHARLES SMITH: Okay. 25 MS. CAROLYN SILVER: Did you know that he

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1 sent this letter at the time? 2 DR. CHARLES SMITH: I -- I have no 3 recollection of that. If you have documentation that 4 would indicate to me that I knew it or my counsel knew it 5 then I certainly accept that. But I don�t have any 6 specific recollection though. 7 MS. CAROLYN SILVER: I don't, Dr. Smith, 8 I'm just asking for your recollection -- 9 DR. CHARLES SMITH: No, I -- 10 MS. CAROLYN SILVER: -- because I don't 11 have that documentation. 12 DR. CHARLES SMITH: I -- I have no 13 specific recollection of that. 14 MS. CAROLYN SILVER: Okay. What you were 15 aware of was that Dr. Young was taking the same position 16 that the College didn't have jurisdiction? 17 DR. CHARLES SMITH: Yes, I -- I knew 18 there had been communication between Dr. Young and the 19 College. I could not have told you what the nature of 20 the communication was in terms of its content or the form 21 that it took. 22 But I do know that Dr. Young had had at 23 some point -- many years later, many years after the -- 24 this case -- that he had spoken to a member of the 25 College or -- but -- but that's as much information as I

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1 -- as I can recall. 2 MS. CAROLYN SILVER: Okay. And just to 3 be fair, there is one (1) letter, Dr. Smith. It's 4 PFP146290, and maybe this will refresh your memory. And 5 it should be at your Volume VII, Tab 8. 6 And then there's another letter at Tab 9, 7 which was attached to that, in which you state to the 8 College that you were aware that a lawyer for the 9 Ministry of the Solicitor General or the Chief Coroner 10 has written to the College concerning this matter. Do 11 you see that? 12 DR. CHARLES SMITH: I -- do you know 13 what? You -- you -- 14 MS. CAROLYN SILVER: I lost you? 15 DR. CHARLES SMITH: Well, no, there's two 16 -- two (2) letters on that date. 17 MS. CAROLYN SILVER: Right. 18 DR. CHARLES SMITH: And I -- and I -- and 19 I've gotten to the wrong one, I'm sorry. Okay. 20 MS. CAROLYN SILVER: The first is a 21 letter -- 22 COMMISSIONER STEPHEN GOUDGE: Tab 8. 23 DR. CHARLES SMITH: Tab -- Tab 8? 24 COMMISSIONER STEPHEN GOUDGE: Tab 8. 25

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1 CONTINUED BY MS. CAROLYN SILVER: 2 MS. CAROLYN SILVER: The first -- first 3 is at Tab 8. 4 DR. CHARLES SMITH: The first is at -- 5 MS. CAROLYN SILVER: It's a short letter. 6 COMMISSIONER STEPHEN GOUDGE: Short 7 letter from you on March 9, 1998. 8 DR. CHARLES SMITH: Yes. Yes, yes, I 9 have this, yes. Mm-hm. 10 11 CONTINUED BY MS. CAROLYN SILVER: 12 MS. CAROLYN SILVER: And you say: 13 "I'm aware that a lawyer --" 14 DR. CHARLES SMITH: Mm-hm. 15 MS. CAROLYN SILVER: 16 "-- for the Ministry --" 17 DR. CHARLES SMITH: Mm-hm. 18 MS. CAROLYN SILVER: 19 "-- of the Solicitor General or the 20 Chief Coroner has written concerning--" 21 DR. CHARLES SMITH: This matter, yes. 22 MS. CAROLYN SILVER: 23 "-- this matter --" 24 DR. CHARLES SMITH: Yes, okay. Yes. 25 MS. CAROLYN SILVER:

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1 "-- as their objections are more 2 procedural." 3 DR. CHARLES SMITH: Yeah. 4 MS. CAROLYN SILVER: So I am just 5 suggesting to you, Dr. Smith, that whether you are aware 6 -- whether you saw that -- 7 DR. CHARLES SMITH: Mm-hm. 8 MS. CAROLYN SILVER: -- letter that we 9 just looked at at the time or not, -- 10 DR. CHARLES SMITH: Yeah. 11 MS. CAROLYN SILVER: -- you were aware 12 that either the Chief Coroner or a lawyer for -- 13 DR. CHARLES SMITH: Mm-hm. 14 MS. CAROLYN SILVER: -- the Ministry of 15 the Solicitor General had written to the College in 16 respect of this investigation and had taken the position 17 that the College did not have jurisdiction to 18 investigate, correct? 19 DR. CHARLES SMITH: Yes. 20 MS. CAROLYN SILVER: And at the time, you 21 expected that Dr. Young would support you in the 22 complaint made by DM in this case, correct? 23 DR. CHARLES SMITH: Well, I -- I what I 24 expected is that if the College asked him for either case 25 specific information that he would provide whatever he

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1 had in answers to their questions and procedurally, that 2 was -- that was an issue that was, as I saw, a 3 jurisdictional one that I was -- could -- could not 4 assist in. 5 But -- but in terms of the exact thing 6 where he supported me, if that was what your question is, 7 I don't know to what degree I expected he would support 8 me, but I expected that he had information that could 9 help the College understand the complaint. 10 MS. CAROLYN SILVER: You saw him as an 11 ally at that time, you've already given that evidence, 12 correct? 13 DR. CHARLES SMITH: He -- he certainly -- 14 he certainly was an ally, in -- in general, but -- but 15 in, you know, in the very specific complaint here, I 16 don't know that I would have prejudged what he would have 17 said to the College in -- in the -- in -- in the matter. 18 I simply knew that he had information or might have 19 information that may help the College. 20 MS. CAROLYN SILVER: But, Dr. Smith, you 21 and Dr. Young has -- had discussed this specific 22 complaint, had you not? 23 DR. CHARLES SMITH: Yes. Yeah. 24 MS. CAROLYN SILVER: And you knew that 25 you were both on the same page and in agreement with

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1 respect to the jurisdiction issue, correct? 2 DR. CHARLES SMITH: Yes. 3 MS. CAROLYN SILVER: And you knew as well 4 that Dr. Young -- you explained your opinion to him and 5 you knew that he was supportive of you, correct? 6 DR. CHARLES SMITH: Yes. Yes. But the 7 complaint is much more than that. The -- the complaint 8 was very detailed and -- and certainly I would not 9 prejudge Dr. Young's thoughts on any individual aspect of 10 the complaint. That's what I was trying to communicate, 11 is that -- is that he might help understand what was in 12 fact a very complicated situation. But I would not 13 prejudge any information that he would have on that as 14 necessarily being helpful to me, but it would be 15 insightful for the College. 16 MS. CAROLYN SILVER: Was it at your 17 request, Dr. Smith, that Dr. Young write to the College 18 and take the position that he did, with respect to the 19 College not assuming jurisdiction? 20 DR. CHARLES SMITH: I don't recall that 21 I'd -- that I had made a specific request. It was an 22 issue that had come up many years before and then with 23 the resurrection of the complaint came up again. I can't 24 say anything more about -- about who initiated the 25 communication between the Office of the Chief Coroner and

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1 the college. I -- I simply don't have a recollection of 2 that. 3 MS. CAROLYN SILVER: Okay. Dr. Smith, 4 wasn't it your view that it was part of Dr. Young's role 5 to protect you from an investigation by the College 6 because the work you had performed was for the Coroner's 7 Office? 8 DR. CHARLES SMITH: Well, the -- I -- it 9 was my view that, as I understood it, that work done for 10 the Coroner's Office answered to the coroner's system as 11 opposed to the College. I certainly recognized that 12 there was someone to whom I had to answer for a 13 complaint. 14 So the issue was not that I was ignoring 15 their complaint. The issue is, for me, as I recall it 16 was to make sure that the complaint is handled the -- the 17 proper way. 18 MS. CAROLYN SILVER: And you wanted that 19 oversight to be done by the Coroner's Office, didn't you? 20 DR. CHARLES SMITH: Well, it was my 21 understanding that, you know, that by this time that the 22 -- that at least one (1) viewpoint was that it was the 23 jurisdiction of the Coroner's Office, so I -- I believed 24 that opinion to be -- to be valid. 25 But this is a, you know, a legal issue and

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1 so I was more standing on the sidelines on this trying to 2 simply indicate that I was aware of it and that -- and 3 that I had initially hoped for some dialogue to a 4 resolution of that. 5 MS. CAROLYN SILVER: But, Dr. Smith -- 6 and we're stopping for the lunch break -- but to be fair, 7 I thought we just agreed that you certainly weren't 8 standing on the sidelines. You consistently took the 9 position -- 10 DR. CHARLES SMITH: Mm-hm. 11 MS. CAROLYN SILVER: -- in your response 12 to the College, that the College didn't have jurisdiction 13 and should not assume jurisdiction with respect to the 14 complaint, correct? 15 DR. CHARLES SMITH: Yes, but in terms of 16 this -- this -- at this point is really not a pathology 17 issue. This is a -- this is a legal issue that I can't - 18 - I can't answer. 19 MS. CAROLYN SILVER: But you did, Dr. 20 Smith. You took a position to the College. 21 DR. CHARLES SMITH: Yes. 22 MS. CAROLYN SILVER: You didn't say there 23 may be a legal issue, but that's not my business, I'll 24 let the lawyers work that out -- 25 DR. CHARLES SMITH: Yes.

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1 MS. CAROLYN SILVER: -- here's my 2 response to the medical complaint. 3 You took the position and I -- we're now 4 backtracking because I thought you agreed with that, Dr. 5 Smith, that the College shouldn't assume jurisdiction. 6 Fair enough? 7 DR. CHARLES SMITH: That was -- that was 8 my understanding, that was what I communicated, but I 9 respected -- I respected the process that was going on 10 and -- and tried to honour the process while pointing out 11 my -- my position on the process. 12 MS. CAROLYN SILVER: Okay. I have a few 13 more questions -- 14 DR. CHARLES SMITH: Okay. 15 MS. CAROLYN SILVER: -- but everyone -- 16 it's lunchtime so I apologize. 17 COMMISSIONER STEPHEN GOUDGE: I'm giving 18 you the eye, Ms. Silver. So it's lunch time, is that 19 okay? 20 MS. CAROLYN SILVER: I apologize for 21 going over. Thank you. 22 COMMISSIONER STEPHEN GOUDGE: We'll come 23 back at two o'clock. 24 MS. CAROLYN SILVER: Thank you. 25

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1 --- Upon recessing at 12:49 p.m. 2 --- Upon resuming at 2:00 p.m. 3 4 THE REGISTRAR: All rise. Please be 5 seated. 6 COMMISSIONER STEPHEN GOUDGE: Ms. 7 Silver...? 8 MS. CAROLYN SILVER: Thank you. 9 COMMISSIONER STEPHEN GOUDGE: You have 10 about twenty (20) minutes, by my count. 11 MS. CAROLYN SILVER: That was my first 12 question. Thank you. 13 14 CONTINUED BY MS. CAROLYN SILVER: 15 MS. CAROLYN SILVER: I just want to -- 16 DR. CHARLES SMITH: Yeah. 17 MS. CAROLYN SILVER: -- finish up the 18 questions that I had for you, Dr. Smith, on the issue of 19 jurisdiction. 20 DR. CHARLES SMITH: Yes. 21 MS. CAROLYN SILVER: Your counsel at the 22 time wrote a letter, or sent to Dr. Young a draft letter 23 for him to review, and he ultimately sent in that letter 24 with some minor changes to the College in response to the 25 DM complaint.

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1 You're aware of that, correct. 2 DR. CHARLES SMITH: That -- that's my 3 understanding, yes. 4 MS. CAROLYN SILVER: Okay. And I just 5 want to look at that letter for a moment. It's PFP144922 6 and I believe that you will find it in Volume VII at Tab 7 32. 8 DR. CHARLES SMITH: Yes, I have that. 9 MS. CAROLYN SILVER: And I asked you some 10 questions about Dr. Young supporting you. And if you 11 turn to page 2 of that letter, Dr. Young says at the top 12 that you were qualified to undertake the necessary work 13 in each of the investigations, correct? 14 DR. CHARLES SMITH: Yes. 15 MS. CAROLYN SILVER: And that's in the 16 three (3) cases that the College was investigating, 17 correct? 18 DR. CHARLES SMITH: Yes. 19 MS. CAROLYN SILVER: And the third 20 paragraph, he says: 21 "The conclusions reached in his post- 22 mortem investigation in those two (2) 23 cases that you see before you..." 24 That's the Amber case, and the Nicholas 25 case:

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1 "...are within the range of reasonable 2 expectations." 3 Do you see that? 4 DR. CHARLES SMITH: I see that, yes. 5 MS. CAROLYN SILVER: Okay. So you 6 understood that Dr. Young was supporting the conclusions 7 you had reached in your post-mortem reports in those two 8 (2) cases, correct? 9 DR. CHARLES SMITH: Yes. 10 MS. CAROLYN SILVER: Okay. And he says 11 on the third page that he's not going to comment on the 12 Jenna case. 13 Do you see that? 14 DR. CHARLES SMITH: Yes, I see that. 15 Yes. 16 MS. CAROLYN SILVER: Okay. So you knew 17 where he stood in terms of your post-mortem 18 investigations in at least those two (2) cases, correct? 19 DR. CHARLES SMITH: Yes. Yes, I did. 20 MS. CAROLYN SILVER: In addition to 21 knowing where he stood on the issue of jurisdiction, 22 correct? 23 DR. CHARLES SMITH: Yes. 24 MS. CAROLYN SILVER: And where he stood 25 on the post-mortem at -- reports in those two (2) cases

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1 was that he stood behind your post-mortem reports, fair 2 enough? 3 DR. CHARLES SMITH: Yes. 4 MS. CAROLYN SILVER: Okay. 5 6 (BRIEF PAUSE) 7 8 MS. CAROLYN SILVER: And then your 9 counsel sent a letter dated April 10th, 2002, to the 10 College, and that's PFP144928. 11 DR. CHARLES SMITH: Yes, I have that one. 12 Yes. 13 MS. CAROLYN SILVER: Okay. Reiterating 14 your position that the College was severely restricted, 15 if not precluded, from exercising jurisdiction over you 16 with respect to the complaint. 17 Do you see that? It's at page 1 of the 18 letter of April 10th, 2002. 19 DR. CHARLES SMITH: Yes. 20 MS. CAROLYN SILVER: Okay. 21 DR. CHARLES SMITH: Yes, I see that. 22 Yes. 23 MS. CAROLYN SILVER: And that was written 24 on your behalf, correct? 25 DR. CHARLES SMITH: By legal counsel,

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1 yes. 2 MS. CAROLYN SILVER: Okay. So you agree 3 that you continued to assert that -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. CAROLYN SILVER: -- position on 6 jurisdiction, correct? 7 DR. CHARLES SMITH: Yes. 8 MS. CAROLYN SILVER: And I'm suggesting 9 to you, and I think you agreed, that it was your position 10 that that oversight mechanism should be done by the 11 Coroners Office, correct? 12 DR. CHARLES SMITH: Yeah -- yes, that's - 13 - that's how I would have understood it. Yes. 14 MS. CAROLYN SILVER: And you took that 15 position knowing that Dr. Young supported your review and 16 your post-mortem reports in at least two (2) of the cases 17 the College was investigating, correct? 18 DR. CHARLES SMITH: Yes. I -- yes, I 19 understood that. Yes. 20 MS. CAROLYN SILVER: And I'm suggesting 21 to you that that is at least part of the reason that you 22 wanted the Coroners Office, rather than the College, to 23 take jurisdiction of the investigations. It's because 24 you knew that the Coroners Office was run by Dr. Young, 25 and he was onside, to put it loosely.

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1 DR. CHARLES SMITH: No, I don't -- I 2 don't recall that that -- the thought of his position on 3 those two (2) cases, or three (3) cases, was the basis 4 for my -- my ongoing view of the jurisdictional issue. 5 MS. CAROLYN SILVER: I'm -- I'm -- 6 DR. CHARLES SMITH: I -- I didn't -- you 7 know, I didn't -- I didn't consider it to be a safer 8 haven with Dr. Young than the Ontario College. 9 MS. CAROLYN SILVER: You didn't? That's 10 your evidence? 11 DR. CHARLES SMITH: I -- yeah. No, I -- 12 I -- that -- that's -- I -- I can't think that that 13 thought was part of my -- I don't remember that thought 14 at all. 15 MS. CAROLYN SILVER: Even though you knew 16 Dr. Young had supported you in at least two (2) cases? 17 DR. CHARLES SMITH: Yes, but I also knew 18 Dr. Young could be very firm with me, so the -- this is 19 not to suggest that I did not consider him to be a person 20 of authority. 21 MS. CAROLYN SILVER: Well, you didn't 22 know where the College investigation would lead in the 23 two (2) cases, correct -- 24 DR. CHARLES SMITH: No. 25 MS. CAROLYN SILVER: -- that we just

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1 talked about? 2 DR. CHARLES SMITH: No. No. 3 MS. CAROLYN SILVER: But you knew where 4 Dr. Young was leaning, at least initially. 5 Fair enough? 6 DR. CHARLES SMITH: On -- yeah, on the 7 issues generally, yes. 8 MS. CAROLYN SILVER: On those two (2) 9 cases, with respect to the -- 10 DR. CHARLES SMITH: Mm-hm. 11 MS. CAROLYN SILVER: -- specific issue of 12 your post-mortem reports, correct? 13 DR. CHARLES SMITH: Oh, with my post- 14 mortem, yes. Yes. 15 MS. CAROLYN SILVER: Right. And I'm 16 suggesting to you that you knew that the Office of the 17 Chief -- Chief Coroner was friendly territory, as opposed 18 to the College. 19 DR. CHARLES SMITH: At this point in 20 time, I'm not certain I would have described them as 21 being any more friendly than the College was. 22 MS. CAROLYN SILVER: I'm talking about at 23 that time, Dr. Smith. 24 DR. CHARLES SMITH: At -- at -- in -- in 25 2002?

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1 MS. CAROLYN SILVER: Yes. 2 DR. CHARLES SMITH: Yes, that's -- I'm 3 sorry. I -- I wasn't specific. Yeah, when I say at this 4 time, I meant at -- in April of 2002. 5 MS. CAROLYN SILVER: You didn't view it 6 as friendlier territory? 7 DR. CHARLES SMITH: No, I did not. 8 9 (BRIEF PAUSE) 10 11 MS. CAROLYN SILVER: I'm going to touch 12 briefly on a few other issues with you, Dr. Smith -- 13 DR. CHARLES SMITH: All right. 14 MS. CAROLYN SILVER: -- and the first is 15 your response -- your initial response in the DM 16 complaint that's been reviewed with you, where you talk 17 about Justice Dunn discussing your evidence with you. 18 DR. CHARLES SMITH: Yes. 19 MS. CAROLYN SILVER: And you should find 20 that in Volume I, Tab 3. 21 DR. CHARLES SMITH: I -- yes, I have that 22 tab. 23 MS. CAROLYN SILVER: That's May 4th, 24 1992. It's PFP147101. 25 DR. CHARLES SMITH: Yes.

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1 MS. CAROLYN SILVER: If you could turn to 2 page 2 of that at the top. 3 And you've looked at this with other 4 counsel, correct, Dr. Smith? 5 DR. CHARLES SMITH: Yes. 6 MS. CAROLYN SILVER: And I take it, Dr. 7 Smith, you had time to craft this response to the 8 College, correct? 9 DR. CHARLES SMITH: In 1992? 10 MS. CAROLYN SILVER: Yes. 11 DR. CHARLES SMITH: Yes. 12 MS. CAROLYN SILVER: And time to consider 13 it before you signed and sent the letter, correct? 14 DR. CHARLES SMITH: Yes. 15 16 (BRIEF PAUSE) 17 18 MS. CAROLYN SILVER: And we know that you 19 said that on two (2) occasions during the week of 20 testimony -- 21 DR. CHARLES SMITH: Mm-hm. 22 MS. CAROLYN SILVER: -- "the judge 23 discussed my evidence with me at 24 length." 25 Do you see that?

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1 DR. CHARLES SMITH: Mm-hm. Yes. 2 MS. CAROLYN SILVER: Okay. And you've 3 now acknowledged that that is not correct? 4 DR. CHARLES SMITH: Yes. 5 MS. CAROLYN SILVER: And you've 6 acknowledged that Justice Dunn didn't speak to you at all 7 about your evidence, correct? 8 DR. CHARLES SMITH: No, that was my -- 9 that was my interpretation of our conversations. 10 MS. CAROLYN SILVER: Well, that's what I 11 want to talk to you about -- 12 DR. CHARLES SMITH: Mm-hm. 13 MS. CAROLYN SILVER: -- your 14 interpretation of -- 15 DR. CHARLES SMITH: Interpretation. 16 MS. CAROLYN SILVER: -- the conversation. 17 DR. CHARLES SMITH: Yes. 18 MS. CAROLYN SILVER: As I understand it, 19 it's your evidence that Justice Dunn, when you spoke to 20 him on the plane -- and I'm looking at page 41 of your 21 written evidence, Dr. Smith -- adverted to the witnesses 22 from the Hospital for Sick Children who had testified to 23 that point in the trial of SM, generally, and left you 24 with the impression that he viewed the Hospital for Sick 25 Children and the physicians practising there very

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1 favourably. 2 DR. CHARLES SMITH: Yes. 3 MS. CAROLYN SILVER: Okay? 4 DR. CHARLES SMITH: Yes. 5 MS. CAROLYN SILVER: And I take it your 6 recollection is something to the effect, of Justice Dunn, 7 said something like, I was impressed by the witnesses, 8 and you surmised from that, or understood from that, that 9 he was saying, I accept their evidence and I think the 10 babysitter is guilty. 11 Is that correct? 12 DR. CHARLES SMITH: He -- he asked 13 questions about individual witnesses to learn more about 14 -- about them, and I provided that information. And it 15 was a result of -- of the discussion that occurred that I 16 made the erroneous interpretation, or assumption, that I 17 did. 18 MS. CAROLYN SILVER: I'm sorry. Dr. 19 Smith, you admitted in your evidence -- and I'll take you 20 to the -- 21 DR. CHARLES SMITH: Mm-hm. 22 MS. CAROLYN SILVER: -- transcript 23 reference from Tuesday -- that at no time during your 24 brief discussion with Justice Dunn did he actually 25 discuss with you your evidence, or the evidence of any of

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1 your colleagues? 2 DR. CHARLES SMITH: That's correct. 3 MS. CAROLYN SILVER: Correct? 4 DR. CHARLES SMITH: Yes. 5 MS. CAROLYN SILVER: Okay. So when -- 6 now you're saying -- 7 DR. CHARLES SMITH: Mm-hm. 8 MS. CAROLYN SILVER: -- he -- he was 9 discussing their evidence with you? 10 DR. CHARLES SMITH: No, no, no, no. 11 MS. CAROLYN SILVER: Or he didn't? 12 DR. CHARLES SMITH: No. No, he -- no, it 13 was discussing the physicians not the evidence. I'm -- I 14 misinterpreted the discussion about the personnel from 15 the Hospital for Sick Children as indicating that -- that 16 he believed their opinion. I -- I believe that that was 17 my interpretation of the conversation which occurred. 18 MS. CAROLYN SILVER: Okay. So he didn't 19 discuss their evidence with you? 20 DR. CHARLES SMITH: No, no. 21 MS. CAROLYN SILVER: So the discussion 22 consisted of him discussing in general the personnel that 23 had testified from the Hospital for Sick -- Sick 24 Children, correct? 25 DR. CHARLES SMITH: That's correct, yes.

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1 MS. CAROLYN SILVER: Excluding you, 2 correct? 3 DR. CHARLES SMITH: He -- 4 MS. CAROLYN SILVER: He talked about the 5 other witnesses from the -- from Sick Kids, not you, 6 right? 7 DR. CHARLES SMITH: He -- he asked me 8 questions about myself and my work as well. 9 MS. CAROLYN SILVER: Okay. 10 DR. CHARLES SMITH: So -- so I was -- and 11 that had occurred even before this, because -- because at 12 first -- he first began asking questions about the -- the 13 Digoxin (phonetic) issue and that -- and so he asked me 14 questions about my involvement in that as well. 15 So I was part of the discussion that had 16 begun earlier on in the airplane but in -- in the -- the 17 Amber case, the -- the discussion as I recall, the 18 questions that he asked were about others because he had 19 already asked me questions about myself. 20 MS. CAROLYN SILVER: And I'm suggesting 21 to you, Dr. Smith, that even if we accept that because 22 Justice Dunn spoke favourably of the witnesses from the 23 Hospital for Sick Children, you might have misinterpreted 24 that as he accepted their evidence and the babysitter was 25 guilty.

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1 Do you follow with me? 2 DR. CHARLES SMITH: Yes. Yes, I -- I 3 agree with that. Yes. 4 MS. CAROLYN SILVER: We cannot accept 5 that there was any misunderstanding on your part when you 6 told the College specifically that Justice Dunn on two 7 (2) occasions during your testimony: 8 "Discussed my evidence with me at 9 length." 10 That wasn't based on a misunderstanding. 11 Fair enough, Dr. Smith? 12 DR. CHARLES SMITH: That was based -- if 13 you had asked me at the end of the airplane what, you 14 know, what had gone on or -- or what his view was, I 15 would have said, we -- we discussed the case and I -- you 16 know, my view would have been exactly that -- 17 MS. CAROLYN SILVER: You would have said 18 he discussed -- if you got off the plane -- 19 DR. CHARLES SMITH: Yeah. 20 MS. CAROLYN SILVER: -- you have said, He 21 discussed my evidence with me, my evidence with me, at 22 length? 23 DR. CHARLES SMITH: He discussed -- he 24 discussed the case and the people and -- and I -- 25 MS. CAROLYN SILVER: I want you to focus

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1 on those words, Dr. Smith. 2 DR. CHARLES SMITH: Yes. 3 MS. CAROLYN SILVER: And I don't mean to 4 cut you off. 5 DR. CHARLES SMITH: Mm-hm. 6 MS. CAROLYN SILVER: But you said very 7 specific words to the College, and I want to focus on 8 them. You said: 9 "He discussed my evidence with me at 10 length on two (2) occasions." 11 And I'm suggesting to you that that is not 12 based on a misunderstanding of what Justice Dunn said, 13 but rather it has to be based on either some sort of 14 hallucination on your part or a fabrication that you knew 15 when you told the College. 16 DR. CHARLES SMITH: No, it was not -- it 17 was not a purposeful fabrication, it was something that I 18 -- I believe I came to believe, because when I provided 19 that evidence to the College about that interaction, 20 that's -- that's what I believed. I recognize it's 21 wrong. 22 MS. CAROLYN SILVER: Dr. Smith, you'd 23 agree with me that that statement that you made to the 24 College, we all agree it wasn't true, correct? 25 DR. CHARLES SMITH: Yes, that's correct.

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1 MS. CAROLYN SILVER: And it certainly 2 can't be explained as something you blurted out in anger, 3 which was one (1) of your explanations this morning to 4 Mr. Lockyer. Fair enough? 5 DR. CHARLES SMITH: Yes. 6 MS. CAROLYN SILVER: And it can't be 7 blamed that you said it under the pressure of cross- 8 examination. Fair enough? 9 DR. CHARLES SMITH: No -- 10 MS. CAROLYN SILVER: Okay. 11 DR. CHARLES SMITH: -- I agree with that. 12 MS. CAROLYN SILVER: Because you had time 13 to consider to consider that answer and that response, 14 correct? 15 DR. CHARLES SMITH: Yes. 16 MS. CAROLYN SILVER: And I want to touch 17 briefly on your response in the Jenna case. 18 DR. CHARLES SMITH: Yes. Mm-hm. 19 MS. CAROLYN SILVER: And Ms. Rothstein 20 has gone through it with you in detail so I just want to 21 pick out a couple of points. 22 DR. CHARLES SMITH: All right. 23 MS. CAROLYN SILVER: You've now agreed 24 that it was you who determined the hair was a 25 contaminant, correct?

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1 DR. CHARLES SMITH: Well, it was -- that 2 dec -- my decision was based on the information given to 3 me and my evaluation of the findings, so it was both 4 history or circumstantial information, plus my own naked 5 eye interpretation. 6 MS. CAROLYN SILVER: Right. Historical 7 information and you looking at the hair -- 8 DR. CHARLES SMITH: Yeah. 9 MS. CAROLYN SILVER: -- and your 10 experience made -- 11 DR. CHARLES SMITH: Yes. 12 MS. CAROLYN SILVER: -- you determine it 13 was a contaminant. We agreed on that, correct? 14 DR. CHARLES SMITH: Yes, yes. 15 MS. CAROLYN SILVER: Okay, and Ms. 16 Rothstein took you through, in detail, your responses to 17 the College -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. CAROLYN SILVER: -- and you'll agree 20 that you never told the College it was you who determined 21 it was a contaminant. Fair enough? 22 What you told -- 23 DR. CHARLES SMITH: Yes. 24 MS. CAROLYN SILVER: -- the College, I'm 25 suggesting to you, was that you found it and saw it --

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1 DR. CHARLES SMITH: Mm-hm. 2 MS. CAROLYN SILVER: -- but the police 3 said it was a contaminant and they didn't take it. Fair 4 enough? 5 DR. CHARLES SMITH: Yes. 6 MS. CAROLYN SILVER: Okay. 7 DR. CHARLES SMITH: Yeah. 8 MS. CAROLYN SILVER: And I'm suggesting 9 to you that you laid blame on the police in order to 10 influence a favourable outcome in the College 11 investigation. 12 DR. CHARLES SMITH: No, I -- I can't say 13 I laid blame on the police. I -- I recognised that 14 something someone told me which led me to understand that 15 the police knew about it and thought it not to be of 16 relevance, so that statement to the College, I believe, 17 was -- was corr -- that information was correct. 18 MS. CAROLYN SILVER: I'm suggesting to 19 you, Dr. Smith, that several times the College asked you 20 about the specific information. 21 DR. CHARLES SMITH: Mm-hm. 22 MS. CAROLYN SILVER: Each time you told a 23 consistent or reasonably consistent version, which was, I 24 saw the hair, I found it, the police thought it was a 25 contaminant and --

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1 DR. CHARLES SMITH: Mm-hm. 2 MS. CAROLYN SILVER: -- didn't want to 3 take it -- 4 DR. CHARLES SMITH: Mm-hm. 5 MS. CAROLYN SILVER: -- so I took it, and 6 sealed it, and bagged it, and kept it. 7 DR. CHARLES SMITH: Yes. 8 MS. CAROLYN SILVER: And I'm suggesting 9 to you that the reason you told this story several times 10 and never told the College that in fact it was your 11 opinion it was a contaminant, was because you were trying 12 to shift blame to police to influence a favourable 13 outcome in the College investigation of your conduct. 14 Do you not agree with that, Dr. Smith? 15 DR. CHARLES SMITH: I can't think that 16 that was ever my thinking, no. 17 MS. CAROLYN SILVER: You told the College 18 in all of your responses that -- you told the College in 19 your first response, you took appropriate sampling, 20 correct? 21 DR. CHARLES SMITH: Yes, yes, mm-hm. 22 MS. CAROLYN SILVER: And you told us now 23 that you were referring to the hair, correct? 24 DR. CHARLES SMITH: Yes, that's right. 25 MS. CAROLYN SILVER: That was in your

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1 first response, December 21, 2001. I won't take you 2 back. 3 DR. CHARLES SMITH: That's fine, yes, mm- 4 hm. 5 MS. CAROLYN SILVER: The College then 6 writes to you again and says, What do you mean by that? 7 And you respond in January of 2002 and say, I was 8 referring to the hair. Correct? 9 DR. CHARLES SMITH: Yes, that's correct. 10 MS. CAROLYN SILVER: Because you knew 11 that you didn't take swabs: oral, vaginal, and anal, 12 correct? 13 DR. CHARLES SMITH: That's correct, yes. 14 MS. CAROLYN SILVER: And you didn't take 15 them because you looked and you got a second opinion and 16 you didn't think there was evidence of sexual 17 interference, correct? 18 DR. CHARLES SMITH: Yes. 19 MS. CAROLYN SILVER: And when you met 20 with Dr. Cole, who was heading the expert panel, he asked 21 you about swabs, correct? 22 DR. CHARLES SMITH: Yes. 23 MS. CAROLYN SILVER: And I'm suggesting 24 to him that you told him that you may have taken swabs 25 and discarded them.

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1 DR. CHARLES SMITH: Yes, I -- I remember 2 that. Yes. 3 MS. CAROLYN SILVER: And I'm suggesting 4 to you that you knew very well when you met with Dr. 5 Cole, which was only a few months later -- 6 DR. CHARLES SMITH: Mm-hm. 7 MS. CAROLYN SILVER: -- after you had 8 responded to the College for the second time, and told 9 them that you didn't take swabs, and you knew when he 10 asked you that question that you didn't take swabs. 11 DR. CHARLES SMITH: No, at -- at that 12 point I -- I actually had some uncertainty because I had 13 no documentation for or -- for or against, so my response 14 at that point in time reflected my own -- my own 15 uncertainty at that point in time. 16 MS. CAROLYN SILVER: And I'm going to 17 make -- 18 DR. CHARLES SMITH: Mm-hm. 19 MS. CAROLYN SILVER: -- the same 20 suggestion to you, Dr. Smith, that you told Dr. Cole, the 21 College's expert, when you met with him, that you may 22 have taken swabs and discarded them in order to influence 23 a favourable outcome in the College investigation, even 24 though you knew it wasn't true. 25 DR. CHARLES SMITH: No, no, that's not my

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1 recollection at all. 2 3 (BRIEF PAUSE) 4 5 MS. CAROLYN SILVER: I want to ask you 6 about your application to the Saskatchewan College that 7 you made in September of 2005, Dr. Smith. 8 DR. CHARLES SMITH: Yes. 9 MS. CAROLYN SILVER: And that's 10 PFP145675; is a letter from the Saskatchewan College to 11 the College of Physicians of Ontario, and I think you'll 12 find that in Volume VII, Tab 43. 13 DR. CHARLES SMITH: Yes, I have that. 14 MS. CAROLYN SILVER: And when you applied 15 to the Saskatchewan College you were asked several 16 questions and you filled out a questionnaire, correct? 17 DR. CHARLES SMITH: Yes. 18 MS. CAROLYN SILVER: And one (1) of the 19 questions you were asked was: 20 "Have you ever been the subject of an 21 inquiry or investigation by a medical 22 licensing authority or a hospital?" 23 Correct? 24 DR. CHARLES SMITH: Yes. 25 MS. CAROLYN SILVER: And you answered,

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1 "no", to that question, correct? 2 DR. CHARLES SMITH: That's correct. 3 MS. CAROLYN SILVER: And on your 4 application you signed a solemn declaration swearing that 5 that information was true, correct? 6 DR. CHARLES SMITH: That's correct. 7 MS. CAROLYN SILVER: And I'm suggesting 8 to you, Dr. Smith, that you knew, when you answered no to 9 that question, that you had been investigated by the 10 College on at least three (3) occasions, if not four (4), 11 because you were investigated twice in one (1) of the 12 cases. 13 Isn't that true? Hadn't forgotten about 14 the College investigations, had you? 15 DR. CHARLES SMITH: No. No, the -- I -- 16 I misinterpreted the question. I put down an answer 17 that, at the time, I thought was correct. I recognized 18 it's misleading. I -- 19 MS. CAROLYN SILVER: It's not misleading, 20 it's untruthful, isn't it, Dr. Smith? 21 DR. CHARLES SMITH: The -- the answer was 22 wrong, I acknowledge that. And I -- and I acknowledge 23 it was wrong and it -- and it was misleading. But I 24 remain firm, resolute, in my -- in my position that it 25 was never an intentional mistake, though I recognize it

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1 was a serious mistake. 2 MS. CAROLYN SILVER: You know when you 3 filled out this application in 2005, that you'd been the 4 subject of at least three (3) investigations by the 5 College, didn't you, Dr. Smith? 6 DR. CHARLES SMITH: I knew that the 7 College had dealt with -- with complaints, yes; 8 considered them, dismissed them -- 9 MS. CAROLYN SILVER: You knew they were 10 investigations, Dr. Smith. You have countless letters 11 from the College asking you to respond -- 12 DR. CHARLES SMITH: Yes. 13 MS. CAROLYN SILVER: -- in the course of 14 the investigation. So to be fair, Dr. Smith, didn't you 15 know these were investigations by the College? 16 DR. CHARLES SMITH: Yes, but I -- I 17 misunderstood, or misinterpreted the question. I 18 recognize that was a error. I did -- I -- at the time I 19 answered that, I had not given my mind to that issue. It 20 was a mistake, I recognize it, I'm embarrassed by it. 21 I -- I have -- I have admitted to it. 22 But -- 23 MS. CAROLYN SILVER: You were also asked 24 if you were suspended, disqualified or censured by any -- 25 any action was taken against you. Do you see that?

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1 "Have you ever been suspended, 2 disqualified, censured or has any 3 discipline action been taken against 4 you as a member of any profession?" 5 DR. CHARLES SMITH: I -- I've been 6 cautioned, is that -- is that -- 7 MS. CAROLYN SILVER: Right. You didn't 8 understand that was a censure? 9 10 11 (BRIEF PAUSE) 12 13 DR. CHARLES SMITH: No, I -- no. No, I'm 14 not -- I would -- I would -- I -- no, no. 15 I recognize it was a caution, it was 16 serious. I respected the College, I submitted myself to 17 the caution -- to the caution. I did not take it at all 18 lightly. I believe I indicated that -- that I regarded 19 it well with embarrassment as -- as an important 20 educational exercise, and I explained that in fact though 21 I was embarrassed by it, I had used it as a teaching 22 point for others as had others. 23 But I -- I don't know that I have ever 24 linked the word censure and a caution as being the same 25 thing. And -- and if -- if should have been linked, I am

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1 -- I am sorry. I didn't understand that and that would 2 me my mistake if they should be linked. 3 MS. CAROLYN SILVER: Well -- 4 COMMISSIONER STEPHEN GOUDGE: You're 5 running out of time, Ms. Silver. 6 7 CONTINUED BY MS. CAROLYN SILVER: 8 MS. CAROLYN SILVER: Just the last 9 question. Dr. Smith, just to pick up on that, you 10 mentioned respect for the College -- 11 DR. CHARLES SMITH: Mm-hm. 12 MS. CAROLYN SILVER: -- and I'm 13 suggesting to you that this completely untruthful and 14 inaccurate answer that you gave to the College of 15 Saskatchewan in 2005 when you told them you had never 16 been the subject of an inquiry or an investigation by a 17 medical licensing authority, was just one (1) of a 18 pattern that had -- that you had of giving untruthful and 19 inaccurate information to the regulatory body, and those 20 are the examples that we've looked at. 21 Isn't that true, Dr. Smith? It's just 22 another example that continued into 2005? 23 DR. CHARLES SMITH: I'm sorry, your que - 24 - I -- I missed the first part of your question. 25 MS. CAROLYN SILVER: Wasn't -- you say

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1 you respect the regulatory -- 2 DR. CHARLES SMITH: Yes. 3 MS. CAROLYN SILVER: -- body -- 4 DR. CHARLES SMITH: Yes. 5 MS. CAROLYN SILVER: -- and I'm 6 suggesting to you that that respect is not manifest, 7 because you had a pattern which ran from 1992 and 8 continued until 2005 with the Saskatchewan College of 9 providing untruthful and inaccurate information to the 10 regulatory body. 11 Isn't that true, Dr. Smith? 12 DR. CHARLES SMITH: That's -- 13 MS. CAROLYN SILVER: That occurred on 14 many occasions. 15 DR. CHARLES SMITH: No. That's your 16 view. It was never my intention to be disrespectful or 17 to be misleading. 18 MS. CAROLYN SILVER: But you were 19 untruthful and misleading on many occasions, intention or 20 not, isn't that true? 21 DR. CHARLES SMITH: I recognize I made 22 mistakes and I recognize before the -- and I -- I pleaded 23 before the College of Physicians and Surgeons of 24 Saskatchewan, that what I did was misleading. I 25 recognize that. I accept that. I stand by that -- by

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1 that statement. 2 MS. CAROLYN SILVER: Those are my 3 questions. Thank you. 4 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 5 Silver. 6 Mr. Wardle...? 7 8 CROSS-EXAMINATION BY MR. PETER WARDLE: 9 MR. PETER WARDLE: Good afternoon, Dr. 10 Smith. 11 DR. CHARLES SMITH: Good -- good 12 afternoon. 13 MR. PETER WARDLE: Dr. Smith, I think you 14 know my name. I'm Peter Wardle. 15 DR. CHARLES SMITH: I recognize you on 16 the little talking head box on -- on the web page, yes. 17 MR. PETER WARDLE: And it appears that 18 from time-to-time I've been mistaken for you, and maybe 19 vice versa. 20 DR. CHARLES SMITH: Well, you're -- 21 you're the loser for that, then. 22 MR. PETER WARDLE: Although I note my 23 hair is a little curlier than your's. 24 Dr. Smith, I act for a number of families 25 and caregivers that have been affected by findings you've

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1 made in a number of cases, and I'm just going to outline 2 that to you. 3 Those cases are Amber -- 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: -- Athena -- 6 DR. CHARLES SMITH: Yes. 7 MR. PETER WARDLE: -- Jenna -- 8 DR. CHARLES SMITH: Yes. 9 MR. PETER WARDLE: -- Nicholas -- 10 DR. CHARLES SMITH: Yes. 11 MR. PETER WARDLE: -- Tyrell -- 12 DR. CHARLES SMITH: Yes. 13 MR. PETER WARDLE: -- and of course, 14 Sharon. 15 DR. CHARLES SMITH: Yes. 16 MR. PETER WARDLE: And I want to start, 17 if I might, with some questions My Friend, Ms. Rothstein, 18 asked you on Monday -- 19 DR. CHARLES SMITH: Mm-hm. 20 MR. PETER WARDLE: -- about your 21 frustrations with the Justice System, and you made a 22 comment that, in your frustration, you pointed fingers at 23 others. Do you recall saying that, sir? 24 DR. CHARLES SMITH: Yes. 25 MR. PETER WARDLE: And you said that

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1 there -- you had a frustration that there were too many 2 demands being made on you, correct? 3 DR. CHARLES SMITH: Yes. 4 MR. PETER WARDLE: And that you felt like 5 "a pawn in a chess game". Do you recall saying that, 6 sir? 7 DR. CHARLES SMITH: Yes. Yes. 8 MR. PETER WARDLE: Can I suggest to you, 9 sir, that throughout your long history with the Justice 10 System, you always felt that you were in a game of sorts? 11 DR. CHARLES SMITH: The -- I -- I would 12 resist -- would resist the use of the term "game" in your 13 question, because that would suggest that I had an 14 attitude of -- that minimized, or was disrespectful of 15 the Justice System, and I -- and I would not want to 16 communicate that to you. 17 I recognized that there are strategies, or 18 tactics that I don't understand, and sometimes I felt I 19 was being used by strategy -- by -- as part of 20 strategies, or tactical moves, but -- but I would not 21 want to suggest that I regarded the -- the importance of 22 the Justice System as -- as being minimized by -- by the 23 use of the term "game". 24 MR. PETER WARDLE: Do you recall saying 25 to us that -- on Monday, that at the beginning, you

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1 thought your role was to support the Crown? 2 DR. CHARLES SMITH: Yes. Yes. That's -- 3 certainly in the 1990s was the -- was the impression that 4 I had, yes. 5 MR. PETER WARDLE: And as I took down 6 your evidence, you said that later on, you understood 7 that your role was to be more impartial, but you were 8 poor in executing. 9 DR. CHARLES SMITH: Yes. I believe 10 that's correct. 11 MR. PETER WARDLE: Do you agree, in 12 retrospect, from some of the admissions you've made this 13 week, that you continued throughout to take on that role 14 of supporting the Crown's case? 15 DR. CHARLES SMITH: Yes. I -- I 16 recognize that I have made that error. 17 MR. PETER WARDLE: Or -- or to use the 18 analogy you used on Monday, "to take a side in the 19 Justice System game". 20 DR. CHARLES SMITH: Yes, and that was 21 wrong of me to do so. I recognize that. 22 MR. PETER WARDLE: And I want to take you 23 to just one (1) extract from a transcript dealing with 24 this issue, and this is in the Commission binders for 25 your evidence. Volume III at Tab 11, and it's PFP020900.

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1 DR. CHARLES SMITH: Yes, I have -- I have 2 that tab. 3 MR. PETER WARDLE: And this is evidence 4 you gave in a preliminary inquiry in the Veno and 5 Kporwodu matter on November 8, 2001. 6 Do you see that in the first page? 7 DR. CHARLES SMITH: I see that, yes. 8 MR. PETER WARDLE: And I want to turn to 9 page 21 in that extract. 10 DR. CHARLES SMITH: Slash 21 or top -- or 11 top of page typed 21? 12 MR. PETER WARDLE: Well, it's 21 in the 13 typed version, I'm sorry. 14 DR. CHARLES SMITH: All right. No, 15 that's fine, I think I have it, yes. 16 MR. PETER WARDLE: And let's just see -- 17 DR. CHARLES SMITH: Mm-hm. 18 MR. PETER WARDLE: -- if the Registrar 19 can get that. 20 DR. CHARLES SMITH: Mm-hm, mm-hm. 21 COMMISSIONER STEPHEN GOUDGE: What's the 22 top phrase on that? Right at the top of the page you 23 want -- 24 MR. PETER WARDLE: It's, "I disagree with 25 that statement".

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1 DR. CHARLES SMITH: Mm-hm. 2 MR. PETER WARDLE: So it's the next page, 3 Mr. Registrar. 4 COMMISSIONER STEPHEN GOUDGE: Yes, slash 5 22, Dr. Smith. 6 DR. CHARLES SMITH: Yes, I have that, 7 yes. 8 9 CONTINUED BY MR. PETER WARDLE: 10 MR. PETER WARDLE: And this is the cross- 11 examination by Ms. Wasser, and do you recall that Ms. 12 Wasser acted for one (1) of the accused in that case? 13 DR. CHARLES SMITH: Yes, yes. 14 MR. PETER WARDLE: And it begins: 15 "Doctor, yesterday while you were in 16 Court, did you notice a very young girl 17 sitting in the Court during the day? 18 A: There were two (2) or three (3) 19 that were in here during the course of 20 the day. 21 Q: And one (1) with long brown hair in 22 a gray suit, did you notice her?" 23 There was an objection, and then Ms. 24 Wasser says: 25 "Did you approach the young lady after

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1 Court in the hallway? 2 A: I spoke to a student who was 3 sitting on the north side of the aisle 4 as I was leaving, yes. 5 Q: And this was a girl with long brown 6 hair? 7 A: Could be. 8 Q: And what did you say to her? 9 A: I don't remember. 10 Q: Did you ask her if she had enjoyed 11 the day? 12 A: I could have. 13 Q: And did she respond that she found 14 it was interesting? 15 A: I don't remember the conversation. 16 She should have. 17 Q: --" 18 DR. CHARLES SMITH: Could have. 19 MR. PETER WARDLE: "She could have," I'm 20 sorry. 21 DR. CHARLES SMITH: Mm-hm. 22 MR. PETER WARDLE: 23 "Q: Did you then say to her that you 24 found that this was all a big game? 25 A: I might have; I have no idea.

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1 Q: You might have said that? 2 A: I might have. 3 Q: Is it a big game? 4 A: I can tell you of a conversation I 5 had yesterday morning with two (2) of 6 the other lawyers in which I indicated 7 to them that in addition to what goes 8 on in the Court, that there is sort of 9 a game of mental chess or positioning 10 that goes on, which is interesting at 11 times, but it's one (1) which I 12 personally tire of." 13 And then you go on to -- 14 DR. CHARLES SMITH: Mm-hm. 15 MR. PETER WARDLE: -- refer to criminal 16 defence lawyers who play that game well. 17 DR. CHARLES SMITH: Yes. 18 MR. PETER WARDLE: Is this indicative, 19 sir, of your position and your reflection, how you 20 thought of the Criminal Justice System when you gave this 21 evidence in November 2001, that there was an element of 22 gamesmanship and that you were one (1) of the players in 23 that game? 24 DR. CHARLES SMITH: I -- I resist 25 accepting all of -- all of your statement. I go back to

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1 what I said; I recognized the importance of the criminal 2 justice system; it's the execution of how the justice 3 system works, which is clearly not like the medical 4 system, is one (1) which, as I indicated, involves ta -- 5 tactics or strategies. 6 And I recognize that -- not that I was a 7 player in that in terms of how I could influence or 8 control it, but rather I felt that I was a pawn who was 9 used by it, so I was not in control, but -- but a part of 10 a process. 11 MR. PETER WARDLE: Well, in a pediatric 12 death case -- 13 DR. CHARLES SMITH: Mm-hm. 14 MR. PETER WARDLE: -- a suspicious death 15 case, we've heard a lot of evidence from Dr. Pollanen and 16 others that the forensic pathologist and the role of the 17 forensic pathologist is central in that investigation 18 because of the lack of other evidence, for example, 19 witnesses in an infant death. 20 DR. CHARLES SMITH: Yes. 21 MR. PETER WARDLE: And I assume you 22 accept that. 23 DR. CHARLES SMITH: Yes, that's -- that's 24 often one (1) of the difficulties which the investigators 25 and the prosecutors and the defence face, is how to work

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1 through the unusual nature of suspicious pediatric 2 deaths. 3 MR. PETER WARDLE: So, to use the analogy 4 of a game, and I'm not suggesting -- 5 DR. CHARLES SMITH: Mm-hm. 6 MR. PETER WARDLE: -- for a moment that 7 that's the correct analogy, but to use that analogy, if 8 there was a game and if you were a player, you certainly 9 were not a pawn, Dr. Smith. You were one (1) of the most 10 important pieces on the board. 11 DR. CHARLES SMITH: That's your view. 12 That's -- that has never been my view. And at this point 13 in time, I don't know how I could -- how I could 14 reconsider, but certainly, at the time that this occurred 15 and on previous occasions, your view and mine of my role 16 are -- are not synoptic. 17 MR. PETER WARDLE: Well, let's start 18 looking at your role in some of the cases that I'm 19 involved in and I want to start with Amber, if I may. 20 And I want to take you first -- I'm going to ask you to 21 take out the overview report for Amber, which I believe 22 is on your left side -- 23 DR. CHARLES SMITH: Yes. 24 MR. PETER WARDLE: -- and also your 25 written evidence, which I think you have in front of you,

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1 sir, on the table. So in your written evidence -- 2 DR. CHARLES SMITH: Yes. 3 MR. PETER WARDLE: -- the discussion of 4 the Amber case starts at page 39 -- 5 DR. CHARLES SMITH: I have that, yes. 6 MR. PETER WARDLE: -- and I want to take 7 you to page 43. 8 DR. CHARLES SMITH: Yes. 9 MR. PETER WARDLE: It starts off by 10 saying: 11 "Dr. Smith has had occasion to review 12 the report of Dr. Whitwell in relation 13 to this case which was authored in 14 2007. Dr. Whitwell is of the opinion 15 that Amber's injuries were the result 16 of the fall described by the 17 babysitter. Viewed in 2007 having 18 regard to the initial -- additional 19 knowledge that short falls can result 20 in fatal consequences, Dr. Smith agrees 21 that that is a reasonable opinion at 22 this time in these circumstances." 23 DR. CHARLES SMITH: Yes. 24 MR. PETER WARDLE: So do I take that, 25 sir, and I have the same problem from time-to-time that

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1 Mr. Lockyer had with this document, in plain English, do 2 you accept Dr. Whitwell's opinion as to the cause of 3 death in this case? 4 DR. CHARLES SMITH: I still think that -- 5 that the cause of death that I proposed was reasonable. 6 I recognize that there are significant limits to the 7 certainty of it as imposed by things like the -- the 8 death to post-mortem interval, but at the end of the day 9 I think that the cause of death is nowhere near as clear 10 as -- as it was, that the possibility of non-accidental 11 head injury remains, and the possibility of accidental 12 injury is -- is worthy of -- of consideration to a very 13 significant degree, and -- and that is different than 14 eighteen (18) years ago or twenty (20) years ago when -- 15 when the autopsy was done. 16 MR. PETER WARDLE: Well, it says here, 17 sir, in your written evidence: 18 "Viewed in 2007 having regard to the 19 additional knowledge that short falls 20 can result in fatal consequences." 21 When did your personal view change about 22 the literature regarding short falls? 23 DR. CHARLES SMITH: Well, the -- the 24 literature has always been evolving. The literature had 25 -- had a fair degree of uncertainty in the 1980s. I

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1 believe by the early 1990s there was -- would be a 2 greater degree of certainty with that, especially on -- 3 based on one of the important papers by Dr. Chadwick, 4 which I think I've referred to here, in -- in which a 5 very -- his wording was very clear on the interpretation 6 of short distance falls. 7 Nevertheless, the uncertainty continued, 8 it was recognized that there were situations in which 9 short distance falls could kill under certain medical 10 conditions, which I've referred to. 11 The -- the controversy or the uncertainty 12 or the debate or the discussion or the attempting to 13 define that possibility has continued. The -- the use of 14 biomechanical models has -- has helped at times, although 15 there's yet, I believe, no perfect biomechanical model. 16 The use of epidemiologic studies has -- at 17 -- at least one (1) epidemiologic study has, in the early 18 2000s, brought some of the other epidemiologic studies 19 into question. But I think the most important thing to 20 me are the -- the independently witnessed anecdotal 21 reports of instances where short distance falls can 22 result in -- in a devastating or fatal head injury. 23 So that's how I see the evolution of the 24 literature. And as the literature has evolved, at any 25 given point in time if you'd asked me what my view was, I

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1 would give you a view as best I understood the literature 2 at that time. 3 MR. PETER WARDLE: Do you acknowledge, 4 sir, that since the late 1980s, with the publication of 5 Tina Duhaime's first study, there has been an ongoing 6 debate for the last twenty (20) years, and if anything, 7 the literature has moved well away from your position in 8 recent years. 9 DR. CHARLES SMITH: The -- well first of 10 all, Dr. Duhaime's study, as she has stated publically, 11 including at the First International Symposium on -- 12 Symposium on Shaken Baby Syndrome, was that she feels 13 that -- that in fact her study has been misinterpreted by 14 some. And so I've had the -- I've had the privilege of 15 hearing her explain her -- her study, in understanding 16 some of those -- some of those uncertainties. 17 Nevertheless, her initial study in '87, 18 and the subsequent studies that she has done, have helped 19 better understand, and have helped bring to the -- the 20 medical mind, some of the issues concerning Shaken Baby 21 Syndrome. She and her co-authors were very helpful in -- 22 in focussing attention on the issue as to pure shaking 23 versus shaking and impact. And the biomechanical model 24 which they used, I don't believe is -- is an accepted 25 model, but nevertheless, that was valuable insight.

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1 The -- I don't think you will find people 2 who say -- I don't think you'll find a large body of 3 people who would say there's no such thing as Shaken Baby 4 Syndrome. The issue is: just what is it, how is it best 5 defined, and how can we best exclude other conditions 6 which do that? 7 And part of what has happened in recent 8 years has been trying to move away from even the 9 terminology and rather concentrate on trying to develop 10 reliable diagnostic criteria, clinical or pathologic that 11 would distinguish accidental from non-accidental head 12 injuries. 13 So -- so the -- the debate has in fact, if 14 anything, widened beyond Shaken Baby Syndrome. It has 15 been assisted by newer literature. The -- the 16 possibility of accidental injuries, I believe, has been 17 given greater weight than it has, and there is a 18 recognition that there is a need, and there are some 19 possible diagnostic tools to better distinguish 20 accidental from non-accidental. 21 The debate continues, the science 22 continues to be refined. The -- the debate or the 23 uncertainties or the controversy, I expect, will last for 24 many years. 25 MR. PETER WARDLE: You acknowledge, I

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1 take it, that your job in -- when testifying in court, in 2 examining literature and opining on that literature, was 3 that if there was a legitimate debate, you had an 4 obligation to bring that debate to the court's attention? 5 Do you accept that, sir? 6 DR. CHARLES SMITH: I don't -- I don't 7 know that I would have accepted it the way -- the way you 8 said it. I -- I look back on my testimony and I realize 9 that I had many opportunities to speak of the 10 uncertainties. But rather than speaking of the 11 uncertainties in the literature, I quoted literature that 12 -- that I relied on for my thinking on the case, as 13 opposed to what could be alternate opinions. And I 14 recognize that -- that my testimony was -- was perhaps 15 more black and white than -- than it should have been. 16 MR. PETER WARDLE: Lets just examine a 17 few of the facts from Amber's case, and I'm not going to 18 take you through all of the details, but just looking in 19 the overview report, I want to start, if I may, and 20 perhaps, just to orient yourself. 21 I know you told us this week about a 22 meeting you attended with members of the SCAN Team just 23 after Amber's death, and that's described at paragraph 47 24 of the overview report. 25 DR. CHARLES SMITH: I have that, yes.

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1 MR. PETER WARDLE: Just to orient 2 yourself in time, you'll see that took -- takes place on 3 August 9, 1988. 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: I want to go over a 6 couple of pages, Dr. Smith, to paragraph 53. 7 DR. CHARLES SMITH: Yes. 8 MR. PETER WARDLE: And this is a police 9 interview with Drs. Young and Driver in Toronto on August 10 12, 1988. 11 DR. CHARLES SMITH: Yes. 12 MR. PETER WARDLE: And you'll see that 13 Sergeant Lavoie gave a detailed account of the interview 14 of Dr. Young, and I'm just going to take you to the first 15 paragraph. 16 "We were escorted to the Coroner's 17 Building where we met with Dr. Young at 18 10:20 hours." 19 And I'm going to skip a sentence: 20 "Dr. Young indicated that there had 21 been a misunderstanding between the 22 coroner in this case and the doctors at 23 Sick Kids. The coroner, a Dr. David 24 Ouchterlony, did not fully appreciated 25 the information he had received from

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1 Dr. Katy Driver. We were told that the 2 autopsy should reveal evidence of 3 bruising between the scalp and skull 4 which would tend to support the 5 babysitter's story on..." 6 I think it should be "or": 7 "...the absence of bruising which would 8 strongly suggest Infant Shaking 9 Syndrome." 10 Do you see that? 11 DR. CHARLES SMITH: I see that statement, 12 yes. 13 MR. PETER WARDLE: Is it likely that Dr. 14 Young would have got that information from you, sir? 15 "That the autopsy should reveal 16 evidence of bruising between the scalp 17 and skull, which would tend to support 18 the babysitter's story, or the absence 19 of bruising which would strongly sugt - 20 - suggest Infant Shaking Syndrome." 21 DR. CHARLES SMITH: I -- I have no 22 knowledge of -- of this, and, so the answer to your 23 question would probably best come from -- from Dr. Young. 24 MR. PETER WARDLE: In any event, sir, you 25 ended up doing the autopsy --

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1 DR. CHARLES SMITH: Yes. 2 MR. PETER WARDLE: -- in that case after 3 the exhumation, correct? 4 DR. CHARLES SMITH: That's correct. 5 MR. PETER WARDLE: And if we turn to page 6 60 -- I'm sorry, paragraph 60. It actually starts at 7 paragraph 59, as your description of your post-mortem 8 examination report. 9 Do you see that? 10 DR. CHARLES SMITH: Yes. 11 MR. PETER WARDLE: And then you'll see at 12 paragraph 61: 13 "In this autopsy report, Dr. Smith also 14 noted that there were a number of areas 15 of [quotes] 'contusion of the skin'." 16 And I'm just going to note: 17 "A) A reddish brown bruise on the 18 forehead to the right of centre." 19 And then: 20 "E) A reddish brown bruise on the 21 frontal scalp which corresponded to the 22 forehead bruise." 23 Have I read that correctly? 24 DR. CHARLES SMITH: No, you've -- you've 25 suddenly lost me.

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1 MR. PETER WARDLE: Okay. I -- 2 DR. CHARLES SMITH: But I -- I believe -- 3 MR. PETER WARDLE: -- I'll slow down. 4 DR. CHARLES SMITH: -- I believe that's 5 correct, but -- but somehow I was looking for that while 6 you were reading -- reading it. I believe that was 7 correct. 8 MR. PETER WARDLE: All right. 9 DR. CHARLES SMITH: There was a -- 10 MR. PETER WARDLE: I think I read that 11 correctly, or I'd hear somebody behind me murmuring. So 12 I take it I did read it correctly. 13 DR. CHARLES SMITH: Yeah. It'd be -- as 14 -- as I recall, there was a glabellar, or forehead -- 15 forehead bruise -- 16 MR. PETER WARDLE: Okay. 17 DR. CHARLES SMITH: -- that was -- that 18 was seen on Amber, yes. 19 MR. PETER WARDLE: You gave the cause of 20 death as head injury, correct? 21 DR. CHARLES SMITH: That's correct. 22 MR. PETER WARDLE: And you told the 23 police that it was a shaking death, correct? 24 DR. CHARLES SMITH: That was how I 25 interpreted it, yes.

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1 MR. PETER WARDLE: Okay. And in fact, if 2 we look a little further on at paragraphs 85 and 3 following, you'll see in paragraph 5 -- 85, there's your 4 discussions with the police -- 5 DR. CHARLES SMITH: Yes, that's correct. 6 MR. PETER WARDLE: -- about the fall. 7 DR. CHARLES SMITH: Mm-hm. 8 MR. PETER WARDLE: And then the meeting 9 in Timmins at paragraph 89, and that ends by saying: 10 "According to Dr. Smith and Dr. Young, 11 Amber had died as the result of a head 12 injury caused by a severe shaking." 13 Do you see that? 14 DR. CHARLES SMITH: Yes, I see that. 15 MR. PETER WARDLE: And then you testified 16 in Amber's case in February of 1990, and I want to take 17 you just a little to your evidence in-chief in that case, 18 and that is in your -- your volume for Amber which I 19 think you have in front of you, Tab 12. So this would be 20 -- I have it as "Dr. Smith's documents -- 21 DR. CHARLES SMITH: Oh. 22 MR. PETER WARDLE: -- for Amber." I 23 think it's in that volume at Tab 12. 24 DR. CHARLES SMITH: I'm sorry, it was 25 right in front of me, yes.

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1 MR. PETER WARDLE: Okay. 2 DR. CHARLES SMITH: Tab 12, yes. 3 MR. PETER WARDLE: And you'll see you 4 gave evidence on a number of dates in February of 1990. 5 Do you see that? 6 DR. CHARLES SMITH: I -- I remember that, 7 yes. 8 MR. PETER WARDLE: So I want to take you 9 first, this is PFP121972. 10 DR. CHARLES SMITH: Yes. 11 MR. PETER WARDLE: And I'm going to ask 12 you to go to -- to page 66. 13 14 (BRIEF PAUSE) 15 16 MR. PETER WARDLE: And you give a -- a 17 long answer -- 18 DR. CHARLES SMITH: Mm-hm. 19 MR. PETER WARDLE: -- starting at the -- 20 towards the top of the page, but I'm going to ask you 21 about your evidence starting in the middle of the page. 22 You'll see you make a reference to the post-mortem 23 report. 24 DR. CHARLES SMITH: Yes. 25 MR. PETER WARDLE: And I'll just read

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1 that out: 2 "If we can dispense with those comments 3 and really then pay attention to the 4 only other area on the front page which 5 I think is important, I would ask you 6 to look at the paragraph about the 7 middle of the page that begins with the 8 heading 'Skin' [in quotes] and really 9 what we can see is we read that 10 paragraph which begins [quotes] 11 'Several areas of contusion of the skin 12 were apparent,' [end quotes] was that 13 in fact there's very little bruising 14 present. There was that one (1) bruise 15 that measured in maximum dimension a 16 little less than an inch in diameter 17 that was present in the skin of the 18 forehead." 19 Do you see that? 20 DR. CHARLES SMITH: Yes, I see that. 21 Yes. 22 MR. PETER WARDLE: And then over the 23 page, the judge asks you about the four (4) bruises, 24 because the judge by this time had numbered these 25 bruises. And he asks you about bruise number 1 -- you'll

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1 see his comment at the bottom of the page we were just 2 looking at. 3 Do you see that? 4 DR. CHARLES SMITH: Yes, I'm -- I'm -- I 5 have -- I have that -- his statements, yes. 6 MR. PETER WARDLE: And then going over to 7 page 68 -- 8 DR. CHARLES SMITH: 68, yes. 9 MR. PETER WARDLE: -- the Crown, Ms. 10 Fowke, says: 11 "Yes, just elaborate on bruise 1 before 12 we move on to bruise 2. 13 A: Bruise 1 is a recent bruise. The 14 procedure for dating bruises is perhaps 15 more of an art than a science and one 16 is better to pay attention perhaps to 17 the gross colour than to the 18 microscopic findings. But the 19 microscopic examination suggested that 20 there was an early repair reaction so 21 it is recent in terms of perhaps 22 several days, whether it occurred prior 23 to or at the time that -- 24 THE COURT: Several days before death. 25 A: Before death, whether that occurred

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1 prior to or about the same time that 2 Amber collapsed, I can't answer that. 3 But it is simply a small bruise and 4 it's in a location where one would not 5 be surprised to see a bruise on any 6 child of Amber's age, so in and of 7 itself we can ascribe little 8 significance to it." 9 And then the Crown asks: 10 "When you say we can ascribe little 11 significance to it, what do you mean by 12 that? 13 A: It's a very small superficial 14 bruise and I'm sure that if you had 15 looked at either of my two (2) children 16 when they were in that age range they 17 would likely have some bruise in the 18 forehead region that would not be too 19 dissimilar." 20 DR. CHARLES SMITH: Yes. 21 MR. PETER WARDLE: And am I right that in 22 this case, twenty (20) years ago now, a number of the 23 defence experts and the experts that Mr. Lockyer went 24 through you -- with you this morning, a number of those 25 experts from Canada, from the United States, with all the

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1 specialties that he went through with you, all testified 2 that this forehead bruise which you dismissed as 3 insignificant was in fact a very significant subgaleal 4 bruise, which would be something one might expect if the 5 fall had been a factor in the death? 6 Isn't that what they said? 7 DR. CHARLES SMITH: Yes, I believe that. 8 Yes. 9 MR. PETER WARDLE: And so I don't want to 10 be unfair to you, sir -- 11 DR. CHARLES SMITH: Mm-hm. 12 MR. PETER WARDLE: -- but looking back at 13 Dr. Young's comments that I just took you to, prior to 14 autopsy -- 15 DR. CHARLES SMITH: Yes. 16 MR. PETER WARDLE: -- okay, and just -- 17 just to refresh our memory on it -- 18 DR. CHARLES SMITH: Mm-hm. 19 MR. PETER WARDLE: -- we have Dr. Young 20 telling the police that the autopsy should reveal 21 evidence of bruising between the scalp and scull, which 22 would tend to support the babysitter's story. 23 DR. CHARLES SMITH: Yes, mm-hm. 24 MR. PETER WARDLE: You do the autopsy -- 25 DR. CHARLES SMITH: Mm-hm.

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1 MR. PETER WARDLE: -- and you find such a 2 bruise and you dismiss it as insignificant when everyone 3 else on the defence side considers it of major 4 importance. 5 Isn't that what happened? 6 DR. CHARLES SMITH: Well, Dr. Young has 7 made a statement and I -- and I'm not sure -- that was 8 his statement. The issue of the bruise -- this -- this 9 reflects in fact one (1) of the controversies at the time 10 that related to the diagnosis of Shaken Baby Syndrome, 11 because there -- the Duhaime paper had come out a short 12 while before, that took the position that shaking alone, 13 without blunt impact, cannot kill. 14 Now, you know, the literature now, and I 15 think the majority of opinion now would -- would not 16 agree with that, but that was one (1) of the points of -- 17 of Dr. Duhaime's paper. 18 And so from the viewpoint of -- of at 19 least some of the people who were testifying at the 20 trial, the issue was, if my diagnosis is correct then the 21 finding of a forehead bruise would obviate that 22 possibility. 23 We now recognise, of course, that the 24 positions that were taken on understanding of bruises at 25 that time are not necessarily true. For instance, there

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1 are -- there were people -- there was at least one (1) 2 person who testified about -- about interpretation of 3 bruises that would necessarily be associated with death 4 and such. 5 And there was though, the issue as to can 6 a child be hit on the head, receive a fatal injury, and 7 yet leave no contusion of the scalp. And -- and I think 8 that that debate has -- has perhaps been better answered 9 now than almost twenty (20) years ago because certainly 10 twenty (20) years ago the answer would be "no", and I 11 believe many people would say "yes". 12 But I think what this issue points to is 13 the fact that now we would recognise that we would not 14 attempt to distinguish between shaking, blunt impact, or 15 a combination of the two (2) in trying to work through 16 it, but we would simply call it non-accidental head 17 injury, look at it all, try and recognise what bruises 18 could be related to childhood activity, which ones would 19 nece -- would not be -- and -- and often -- and that's 20 not the pathology, that's usually best based on the 21 history, as it may have been in this case -- and then use 22 that in the totality of the it all. 23 So, I was certainly aware of the 24 controversy and the differences of opinion at the time 25 and the different interpretations of Dr. Duhaime's paper,

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1 but I -- I stand -- I believe that the opinion that I 2 gave then was a reasonable one, and I'm not sure that if 3 I had been asked for the purpose of the exhumation at 4 that time I would have given the same answer that Dr. -- 5 Dr. Young did. 6 MR. PETER WARDLE: You know, Dr. Smith, 7 you're -- you're entitled to hold an opinion. 8 DR. CHARLES SMITH: Yes. 9 MR. PETER WARDLE: And you were entitled 10 to hold that opinion then. 11 DR. CHARLES SMITH: Yes. 12 MR. PETER WARDLE: But if there was a 13 controversy in the literature, even back then, even back 14 in the late 1980s, didn't you have an obligation to bring 15 that controversy to the Court's attention, and isn't what 16 happened in this case that you didn't bring the 17 controversy to the Court's attention and the defects ex - 18 - the defence experts did, and the Judge was surprised? 19 If you read his judgment, Dr. Smith -- 20 DR. CHARLES SMITH: Yeah, yes, I 21 understand. 22 MR. PETER WARDLE: -- he's surprised -- 23 DR. CHARLES SMITH: Mm-hm. 24 MR. PETER WARDLE: -- that you and all 25 the other clinicians who testified at the trial from the

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1 Hospital for Sick Children didn't mention this ongoing 2 controversy in the literature. 3 Do -- do I need to take you through -- 4 DR. CHARLES SMITH: No. 5 MR. PETER WARDLE: -- your evidence where 6 you say over and over -- 7 DR. CHARLES SMITH: Mm-hm. 8 MR. PETER WARDLE: -- that you can rule 9 out a fall in this death. 10 DR. CHARLES SMITH: Yes. 11 MR. PETER WARDLE: That's what you said. 12 DR. CHARLES SMITH: Yes, you don't need 13 to take me to that, but yes. Yes, that was my evidence, 14 as I recall it. 15 MR. PETER WARDLE: No doubt about it in 16 your mind as you expressed it to the Court, correct? 17 DR. CHARLES SMITH: That's correct. 18 MR. PETER WARDLE: And you didn't mention 19 any controversy in the literature, did you? 20 DR. CHARLES SMITH: No, no. 21 MR. PETER WARDLE: In fact, if we go over 22 a few more pages -- 23 DR. CHARLES SMITH: But, excuse me, Mr. 24 Wardle, the -- the start of your question was: Did I not 25 appreciate that? I think it -- did I not appreciate that

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1 was my role to bring the controversy forward? And the -- 2 and so I don't want to walk away from this, because I 3 think this may be helpful, not only in understanding this 4 case, but maybe more globally. 5 Was -- in fact, no I did not understand 6 that role. No one ever -- had ever told me. It had not 7 crossed my mind at all. I admit that that was -- that 8 that expresses a position of ignorance about -- about my 9 role in the -- in the judicial system, but the reality is 10 no, I had no idea, and no one every told me. 11 None of my colleagues told me. I'm not 12 aware that my colleagues als -- did that either. As I -- 13 as we discussed testimony after trials were over and 14 tried to sort of help understand from each other what 15 went on, none of us, to the best of my recollection, ever 16 went into court with papers that represented both sides 17 of the controversy. 18 So I plead ignorance on it. I realize it 19 wasn't helpful, but -- but that is -- I was doing what I 20 thought was to be done. 21 MR. PETER WARDLE: Lets just go on, and 22 I'm not going to -- you've been quite candid about this, 23 so I'm not going to explore it in detail, but you know, 24 at -- in this same transcript at pages 99 and 25 following...

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1 (BRIEF PAUSE) 2 3 MR. PETER WARDLE: And if we just turn to 4 page 99, you refer to the literature and you say, in the 5 middle of that page, and I'll just -- I'll give the 6 question -- 7 DR. CHARLES SMITH: Mm-hm. 8 MR. PETER WARDLE: -- for context: 9 "When you mean free fall, you mean just 10 fall and not hit any of the stairs and 11 fall indirectly onto the tiled area at 12 the bottom? 13 A: Yes. And lets say she was on some 14 other object that height and she fell 15 off. She was standing on a table, she 16 was standing on a kitchen counter and 17 she fell off. Does that kill? And 18 very clearly the literature says, No, 19 that does not kill." 20 And then you refer to the New York study, 21 Kids Can't Fly, right? 22 DR. CHARLES SMITH: Yes, yes. 23 MR. PETER WARDLE: So again, and -- and 24 over the page, I won't belabour this, but you refer to 25 the Kids Can't Fly study again in the middle of page 100.

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1 You say it came out of a project in New York city to stop 2 kids from falling out tenement windows, and you refer to 3 this LD-50? 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: And I'm not sure I'm 6 going to need to go into what that means. But just 7 scrolling through this, you couldn't have been more 8 definitive, Dr. Smith, about what you, Dr. Charles Smith, 9 had taken from the literature, correct? 10 DR. CHARLES SMITH: This was -- this was 11 the -- the best study that existed at that time that 12 helped us understand the height of a fall that was 13 necessary to likely result in death. 14 There had been other studies, which I 15 think I referred to in my testimony, that dealt with 16 short distance falls such as in hospitals and such. So 17 the -- the information I gave, and -- and I recognize 18 that this is -- this was not helpful, but the information 19 that I gave then was literature which I had relied on to 20 come to my conclusion. 21 It was a limited body -- body of 22 literature, compared to what was available in the years 23 that followed, but that to -- but to me, I had identified 24 seminal articles that were significant in the formulation 25 of my opinion and that's what I gave.

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1 MR. PETER WARDLE: And then before I 2 leave this transcript, I want to take you a little 3 further to page 107. 4 5 (BRIEF PAUSE) 6 7 MR. PETER WARDLE: And you'll see that 8 there's a long answer with a star beside it at the top of 9 the page? 10 DR. CHARLES SMITH: Yes. 11 MR. PETER WARDLE: And after giving that 12 answer in that first paragraph, you then say this, sir: 13 "Can I not simply respond to the pure 14 pathology evidence, but can I step back 15 and as a forensic pathologist, sort of 16 give you an entire scenario which would 17 include medical and other observations? 18 Let me give you what is in my 19 experience and what I obtained from the 20 literature to be a typical shaken 21 whiplash syndrome situation." 22 And it starts off with the people 23 involved. And then you go on -- 24 DR. CHARLES SMITH: Mm-hm. 25 MR. PETER WARDLE: -- at the bottom of

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1 the page to give what I think you described this week as 2 "pop sociology", correct? 3 DR. CHARLES SMITH: Yes. 4 MR. PETER WARDLE: And I don't need to 5 read all of it, but at -- 6 DR. CHARLES SMITH: Mm-hm. 7 MR. PETER WARDLE: -- page 108, you'll 8 see you say: 9 "It is often that the literature would 10 tell us usually under 6 months of 11 age..." 12 Of course, Amber was not under 6 months of 13 age: 14 "... but in the literature -- both in 15 the literature [I'm sorry] -- but that 16 certainly is not a restrictive 17 definition, both in the literature and 18 from my own experience, but an infant 19 up to two (2) years of age who may have 20 been abused in the past..." 21 And then a little further on: 22 "...and this child may be normal. They 23 may be a little bit irritable. They 24 may be crying uncontrollably. You have 25 the caregiver, and that caregiver, in

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1 my experience, has never been the 2 mother and has never been the father, 3 but when I say father, I mean, the 4 biological father in the scenario of 5 the marriage. 6 THE COURT: Or a common law union? 7 A: Well, it could be a biological 8 father, or in a common law situation, 9 but is more likely to be a boyfriend; a 10 common law husband who is not the 11 biological father. It could be a 12 person who babysits on occasion. It 13 could be a person who provides daycare 14 on a continuing basis, and that's as 15 much as I can say there." 16 And then you say: 17 "Other than if it is a man, that is the 18 boyfriend or the common law husband but 19 not the biological father, they will 20 not infrequently have..." 21 And then there's an -- there's an 22 interruption: 23 "...they will often have a criminal 24 record, wherein you have a variety of 25 offenses. And the environment in which

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1 it occurs, or you see, if I can use 2 that expression, is that it's usually 3 in the latter part of the afternoon; in 4 the latter half of the afternoon in 5 what are called 'the poison hours'. 6 And you have a situation in where you 7 have a tired or a crying infant who is 8 tired because they haven't gone down 9 for their afternoon nap, or they may be 10 irritable for whatever reason; fussy, 11 et cetera." 12 DR. CHARLES SMITH: Yes. 13 MR. PETER WARDLE: And then you go on to 14 say that the caygive -- caregiver just loses control. 15 DR. CHARLES SMITH: Yes. 16 MR. PETER WARDLE: I'm just taking you 17 back to the beginning of that answer. 18 DR. CHARLES SMITH: Mm-hm. 19 MR. PETER WARDLE: You started -- first 20 of all, it's -- it's -- you just volunteered this 21 information to the Court. Nobody asked you to give it, 22 Dr. Smith, right? 23 DR. CHARLES SMITH: That -- that's how I 24 would -- would interpret my response to whatever -- to 25 whatever question had been asked, or I had understood,

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1 yes. 2 MR. PETER WARDLE: And you agree now that 3 this was not evidence that a forensic pathologist should 4 be giving, correct? 5 DR. CHARLES SMITH: I -- I agree with 6 that, yes. 7 MR. PETER WARDLE: Okay. 8 DR. CHARLES SMITH: I -- I agree with 9 that -- 10 MR. PETER WARDLE: And when we go over a 11 little further to the sort of -- the end of this, because 12 this goes on for some pages. 13 If we go on to page 124, you'll see at the 14 top of that page, and now the Crown is elucidating 15 information from you about this pop sociology: 16 "Q: What about the circumstances that 17 the individual may have, up until that 18 point, been to everyone's observation a 19 loving babysitter? 20 A: That's actually the experience that 21 I've had with the cases that I am 22 familiar with that relate to 23 babysitters." 24 DR. CHARLES SMITH: Yes. 25 MR. PETER WARDLE: And isn't there an

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1 element of gamesmanship in that answer? You were playing 2 a role. You were supporting the Crown's case. You were 3 providing the information that you thought would assist 4 the Crown in obtaining a conviction. 5 Isn't that right, sir? 6 DR. CHARLES SMITH: No, I was providing 7 information that represented my knowledge from the 8 literature and my experience. 9 That information was not information which 10 affected the diagnosis of non-accidental head injury, but 11 it was information which had been given -- had been 12 proffered, and I recognize proffered im -- improperly, to 13 the Court. 14 But how the Court viewed it was -- was in 15 -- in my opinion, the Court's -- the Court's decision, 16 not mine. It was wrong for me to do so, but -- and -- 17 and I recognize, at times, in this testimony I was 18 defensive and dogmatic. 19 But I certainly did -- to the best of my 20 recollection, did not stand up for the purpose of finding 21 -- you know, of -- of feeling that I had to -- to find 22 anyone guilty for Ms. -- Ms. Fowke, the Crown Attorney. 23 MR. PETER WARDLE: Let's go forward in 24 time now, after Amber's case is over, and I'm going to 25 ask you to turn in your volume now to Tab 20, the same

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1 volume you've just been looking at, Dr. Smith. 2 DR. CHARLES SMITH: Oh, in the Amber 3 volume? 4 MR. PETER WARDLE: Yes, your Amber 5 volume. 6 DR. CHARLES SMITH: Okay, Tab 20, yes. 7 Yeah. 8 MR. PETER WARDLE: So this is a letter 9 that a number of people have looked at with you over the 10 past few days. 11 DR. CHARLES SMITH: Yes. 12 MR. PETER WARDLE: And this is the letter 13 that's written to the College -- 14 DR. CHARLES SMITH: Yes. 15 MR. PETER WARDLE: -- in response to DM's 16 complaint -- 17 DR. CHARLES SMITH: Yes. 18 MR. PETER WARDLE: -- and you've 19 acknowledged that you had read Justice Dunn's decision at 20 the time you wrote this. 21 DR. CHARLES SMITH: Yes. 22 MR. ROBERT CENTA: PFP number? 23 24 CONTINUED BY MR. PETER WARDLE: 25 MR. PETER WARDLE: The PFP number is

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1 147101. And you'll see if you turn to page 2 of this 2 letter, this is now May 4, 1992, two (2) -- a little over 3 two (2) years after you give your evidence in that case, 4 the third paragraph on the second page: 5 "I remain as convinced as -- as ever 6 that Amber's head injury resulted from 7 a non-accidental injury. Furthermore, 8 in the months which have passed since 9 her death, the increasing body of 10 medical literature in the area of child 11 abuse serves to underscore my opinion." 12 DR. CHARLES SMITH: Yes. 13 MR. PETER WARDLE: So, I guess the first 14 point we could take from that, sir, is that whatever 15 Justice Dunn said, however he wrote it, however blunt he 16 was in his criticisms of you and his comments on the 17 debate in the literature, you had learned nothing from 18 his decision, isn't that fair? 19 DR. CHARLES SMITH: I -- I don't believe 20 that this statement should be used to interpret that. 21 This statement -- in fact, I recognized the controversy, 22 I recognized the opinions of -- of others, I recognized 23 from the issues before Judge Dunn the necessity for -- 24 for a thorough and careful consideration of the 25 literature, for one (1) thing.

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1 And -- and I did that, and I did that in 2 conjunction, and I read the literature and -- and in 3 doing so, used to think about cases. And let me even 4 take you further to show you that -- that very point. 5 If you go to my curriculum vitae, you will 6 see that, in fact, at one (1) point, the first 7 publication on the use of a specialized 8 immunohistochemical technique was -- was made. 9 I'm sorry, I'll very -- I'll very quickly 10 -- yes, on my curriculum vitae is Item number 74, axonal 11 injury, and the neuropathology of Shaken Baby Syndrome 12 published in 1998, so at that point, in 1998, this was 13 the first paper on the possibility of a new diagnostic 14 tool that could help in Shaken Baby Syndrome. 15 And I believe the evidence in some of 16 these which -- which I have read recently, underscores 17 the fact that I was mindful of that, because even at that 18 point in time, with that new thing, I said I did not do 19 it on Amber's case because it was not -- I was not direct 20 -- you know, this would have to be decided by the Chief 21 Coroner. But even six (6) years later, I was still 22 paying attention to Amber's case and was willing to 23 reconsider it based on anything I had read or had done. 24 If -- if there was -- 25 MR. PETER WARDLE: You know, Dr. Smith --

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1 DR. CHARLES SMITH: Yeah. 2 MR. PETER WARDLE: That's very helpful, 3 but I'm not interested in the moment in what research -- 4 DR. CHARLES SMITH: Mm-hm. 5 MR. PETER WARDLE: -- you may have done 6 later; I'm asking you about May of 1992. 7 DR. CHARLES SMITH: Yes. 8 MR. PETER WARDLE: Justice Dunn's 9 decision has come out -- 10 DR. CHARLES SMITH: Yes. 11 MR. PETER WARDLE: -- he's acquitted SM, 12 right? 13 DR. CHARLES SMITH: For whatever reasons, 14 yes. 15 MR. PETER WARDLE: For whatever reasons? 16 You read the reasons. 17 DR. CHARLES SMITH: Yes, I recognize -- 18 MR. PETER WARDLE: He explained -- 19 DR. CHARLES SMITH: Yes. 20 MR. PETER WARDLE: -- in a lengthy 21 judgment why he acquitted her. 22 DR. CHARLES SMITH: Yes. 23 MR. PETER WARDLE: And you didn't agree 24 with that, did you? 25 DR. CHARLES SMITH: Well, he acquitted

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1 her, as I understood, that related to my part of it, 2 because of controversies or uncertainty in pathology in 3 the techniques that I'd used, in the conclusions I'd 4 made, and the interpretations that I made. I recognized 5 that there were many statements made by the defence that 6 were critical of my work, my approach, my diagnosis. 7 I considered those. I also con -- 8 continued to consider the literature. So I believe that 9 I did learn some lessons from that -- that -- that 10 addressed some aspects of that; such as, you know, such 11 as these issues of -- of procedure. 12 But at the same time, I also recognized 13 that in light of the controversies, it was necessary, and 14 -- and relevant to my practice of medicine, to try and 15 stay abreast of the controversies. 16 By the time 1992 came along, the body of 17 literature at that time on short distance falls was much 18 more -- was much clearer than it had been in 1988. And 19 so my statement to the College was correct. 20 My opinion stood based on my 21 reconsideration of it in light of new knowledge. 22 MR. PETER WARDLE: Now lets get one (1) 23 thing clear, Dr. Smith. After Judge -- Justice Dunn's 24 decision, you continued to work as the Head of what we've 25 been calling the OPFPU, correct?

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1 DR. CHARLES SMITH: That's correct. Mm- 2 hm. 3 MR. PETER WARDLE: And you continued in 4 that position right up until what year? 5 DR. CHARLES SMITH: 2004, I think it was. 6 MR. PETER WARDLE: Right. So right 7 through the '90's -- 8 DR. CHARLES SMITH: Mm-hm. 9 MR. PETER WARDLE: -- you continued to 10 get cases come in on a regular basis which would be 11 possible suspected shaken baby cases, right? 12 DR. CHARLES SMITH: My colleagues and I 13 all did, yes. That's right. 14 MR. PETER WARDLE: So you had the 15 opportunity, did you not -- you and your colleagues had 16 the opportunity every time one of those cases came in, to 17 look back at Justice Dunn's decision and what he had said 18 about your diagnosis in that case? Isn't that fair? 19 DR. CHARLES SMITH: We -- the issue of 20 SBS was a diagnosis that came up with every -- every time 21 one of the pathologists did one of these cases, yes. We 22 -- we considered it, the controversies were discussed 23 amongst pathologists, and the pathologists sought the 24 assistance of others and looked to the opinions of 25 others.

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1 MR. PETER WARDLE: So let's go for -- 2 forward if we can, and then I think this would be a good 3 time for a break, but if I can do one (1) -- 4 COMMISSIONER STEPHEN GOUDGE: One (1) 5 more question? 6 7 CONTINUED BY MR. PETER WARDLE: 8 MR. PETER WARDLE: One (1) more document. 9 If we can go forward to 1998. 10 DR. CHARLES SMITH: Yes. 11 MR. PETER WARDLE: So we've gone from 12 1990 to 1992, and now I'm taking you forward to 1998, and 13 I'm going to ask you to turn in -- this would be, I 14 believe, the Commission documents, Volume II, Tab 16. I 15 hope I have that right. It's 146291, and it's your March 16 9, 1998 letter to the College. 17 DR. CHARLES SMITH: Oh, no, I'm sorry, 18 I've got the wrong volume. Volume -- Commission Volume 19 II? 20 COMMISSIONER STEPHEN GOUDGE: No, it's -- 21 MR. PETER WARDLE: Maybe it's -- it's -- 22 it may, in fact, be in the additional Volume II, Tab 16. 23 MR. MARK SANDLER: It's additional 24 volume. 25

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1 CONTINUED BY MR. PETER WARDLE: 2 MR. PETER WARDLE: It's additional 3 Volumes II, I'm sorry, Dr. Smith. Those would be the 4 volumes immediately behind you on the wall, and it's 5 Volume II: Additional Documents Provided by the Parties. 6 DR. CHARLES SMITH: All -- all right. 7 Yeah, I -- this is a letter to the College, 9th of March, 8 1998. 9 MR. PETER WARDLE: Correct. And first of 10 all, sir, this is a very long letter, and I'm not going 11 to go through all of it, but I note at pages -- and the 12 pages are hard -- they are numbered at the top on a fax 13 copy. 14 DR. CHARLES SMITH: Yes. 15 MR. PETER WARDLE: And they're -- my copy 16 is almost illegible, but if you go forward to the 8th 17 page. 18 DR. CHARLES SMITH: Is there a -- an 19 italicized -- 20 MR. PETER WARDLE: It starts -- 21 DR. CHARLES SMITH: -- wording? 22 MR. PETER WARDLE: -- "presence of the 23 forehead bruise". 24 DR. CHARLES SMITH: I have -- 25 COMMISSIONER STEPHEN GOUDGE: Slash 8.

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1 MR. PETER WARDLE: Yeah. 2 DR. CHARLES SMITH: Slash 8, yes, I have 3 that. 4 5 CONTINUED BY MR. PETER WARDLE: 6 MR. PETER WARDLE: It's slash 8. And 7 then you'll see the controversy about whether you had 8 noted the bruise and whether you had given it any 9 significance and I see that on page 8 and page 9, do you 10 see that? 11 DR. CHARLES SMITH: Yes, I have all of 12 this. Yes. 13 MR. PETER WARDLE: And then do you see, 14 Dr. Smith, that you told your regulator in March 9, 1998, 15 at the bottom of page 9, the very last sentence: 16 "Thus it is possible that Amber died as 17 the result of a blow from a human 18 hand." 19 DR. CHARLES SMITH: I'm sorry, where do 20 you...? 21 MR. PETER WARDLE: The bottom of page 9. 22 DR. CHARLES SMITH: Yes, the very last 23 sentence, yes. Mm-hm. 24 MR. PETER WARDLE: So a case which, at 25 the trial in 1990, you told the Court "was a shaken baby

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1 case," in 1998, you told your regulator that it was 2 possible that it was "a blow from a human hand." 3 DR. CHARLES SMITH: Yes. That's right. 4 Yes. And that paragraph explains the -- the change in 5 the literature that had occurred in that period of time. 6 MR. PETER WARDLE: And then let's go over 7 the next page towards the bottom of the page, second last 8 paragraph from the bottom: 9 "In my view, the medical literature 10 does not support the hypothesis that 11 Amber's death is attributable to a fall 12 down several carpeted steps. At the 13 time I testified in this trial, the 14 literature was strong on this point." 15 Now just stopping there, sir. 16 DR. CHARLES SMITH: Mm-hm. 17 MR. PETER WARDLE: Is that a fair 18 characterization of the literature at the time you 19 testified at the Amber trial? 20 DR. CHARLES SMITH: Yes. The -- the 21 seminal paper was by Stephen Ludwig from the Children's 22 Hospital of Philadelphia on stairway injuries and 23 children, and his -- his paper certainly referenced other 24 papers. 25 But at -- in 1988, the Ludwig study was

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1 the best and the most comprehensive study on the pattern 2 of injuries associated with falls and stairway falls; 3 stair falls, yes. That was 1988. 4 MR. PETER WARDLE: And then you'll see if 5 we finish the sentence: 6 "And in the intervening years the 7 literature is even more definitive." 8 DR. CHARLES SMITH: That's correct. 9 MR. PETER WARDLE: So, 1990, you had a 10 view of the literature, -- 11 DR. CHARLES SMITH: Yes. 12 MR. PETER WARDLE: -- 1992, you had a 13 view of the literature; 1998, the literature is getting 14 even better in your favour, isn't it? 15 DR. CHARLES SMITH: Well, no, it's not my 16 favour, no. The next major study on understanding -- the 17 next major paper on stairway injuries was published in 18 1994 and, in fact, that paper disagreed with Ludwig's 19 original paper that said, You don't get fatal head 20 injuries; essentially you don't get fatal injuries of any 21 kind, and the 1994 paper said, Actually you do under 22 certain circumstances. 23 And so following the 1994 paper, I 24 certainly considered that paper and considered it in the 25 context of cases that I had done.

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1 Amber's case did not fit the, sort of, the 2 -- the possibility that was given in the 1994 paper about 3 death from stairway injuries. So, in fact, the 4 literature, though it strengthened the opinion that 5 Amber's case -- it was the second paper that indicated 6 that my opinion on Amber's case was valid. 7 Nevertheless it said, Here is a 8 significant exception. That significant of an exception 9 -- we have had cases -- one (1) or more cases in Ontario 10 that in fact fit in that exception. 11 So -- so in -- when I wrote this letter in 12 1998, I would certainly be aware of the 1994 paper 13 because it was very significant. There -- it was -- 14 there are -- it was the second of the significant papers; 15 the seminal papers on stairway injury. 16 So those statements are correct. I 17 reconsidered Amber's case in light of new information. 18 That new information served to be more definitive on 19 Amber, yet at the same time, it helped define the 20 situations better that would say, No, this is an 21 accident. 22 In 1998, if you had said to me, someone 23 was carrying Amber down the stairs -- an adult -- and 24 they fell and they landed on Amber, could that have 25 killed her, and I would have said, Yes. In 1992 -- in

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1 1990, I would have said, No. 2 My opinion on the possibility changed. 3 But my opinion on the specific instances related to -- to 4 the information as I knew about Amber did not change, but 5 I was certainly willing, at any time, to reconsider my 6 opinion based on new knowledge. 7 MR. PETER WARDLE: Mr. Commissioner, this 8 would be a good time, then, for the afternoon break. 9 Thank you. 10 COMMISSIONER STEPHEN GOUDGE: Okay, we'll 11 rise, then, for fifteen (15) minutes. 12 13 --- Upon recessing at 3:24 p.m. 14 --- Upon resuming at 3:45 p.m. 15 16 THE REGISTRAR: All rise. Please be 17 seated. 18 COMMISSIONER STEPHEN GOUDGE: Mr. Wardle, 19 just to give you sense of where we are by my calculation, 20 you have two (2) hours all in. I think you've done about 21 an hour. 22 MR. PETER WARDLE: That's three (3) hours 23 all in, sir. 24 COMMISSIONER STEPHEN GOUDGE: Yes, two 25 (2) hours to go, I mean.

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1 MR. PETER WARDLE: Correct. 2 COMMISSIONER STEPHEN GOUDGE: Okay. 3 MR. PETER WARDLE: Thank you, sir. 4 COMMISSIONER STEPHEN GOUDGE: We're a 5 touch behind, so I'm going to suggest, Dr. Smith and 6 counsel, if we can prevail on you all to go about ten 7 (10) minutes beyond our normal stopping time. We'll make 8 up some of it today and then hope that we can expedite a 9 bit tomorrow, so we'll go to -- if I can get you to find 10 a good place to break around 4:40. 11 12 CONTINUED BY MR. PETER WARDLE: 13 MR. PETER WARDLE: That would -- I think 14 I can do that, sir. 15 Dr. Smith, do you recall being asked some 16 questions on Monday about Taylor's case? 17 DR. CHARLES SMITH: It was discussed. I 18 -- you'll -- you'll have to help me with the questions 19 and answers because at this point I'm having a little 20 trouble remembering everything that I've said. 21 MR. PETER WARDLE: That's fair enough, 22 and I will help you a little bit. 23 DR. CHARLES SMITH: Mm-hm. 24 MR. PETER WARDLE: I'm going to just take 25 you, if I may, to some questions and answers given in

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1 your transcript at pages 132 and 133, and I'll just read 2 them, if I can. 3 DR. CHARLES SMITH: Oh, all right, yes, 4 that would help. 5 MR. PETER WARDLE: All right. And you 6 were asked by the Commissioner a question about why you 7 were sceptical about the history in Taylor's case. And 8 I'm just going to read your answer, if I may, and this 9 starts at page 132 of the transcript towards the bottom: 10 "Why was I sceptical? I -- I think a 11 couple of things. First of all, I was 12 -- I was still not certain of just how 13 violent that event was and -- and the - 14 - as I tried to dissect out the 15 information that was given to me in 16 Court, I don't know if it was a 17 hypothetical or -- or the actual 18 evidence. I was not convinced that it 19 was -- that it was necessarily of -- of 20 a great force or a considerable force, 21 and so that's the first thing." 22 DR. CHARLES SMITH: Yes. 23 MR. PETER WARDLE: And I'll just pause 24 there. Do you recall saying that? 25 DR. CHARLES SMITH: Yes, I -- I remember

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1 that issue, yes. 2 MR. PETER WARDLE: And it's the -- it's 3 the next part I want to focus you on. 4 DR. CHARLES SMITH: Mm-hm. 5 MR. PETER WARDLE: The quote starts: 6 "And the second thing is, is there is a 7 sort of maxim -- a maxim or a standard 8 -- that when death occurs from blunt 9 impact head injury in an accidental 10 situation, the caregiver or the parent 11 has seen something which is 12 extraordinary, and right from the 13 beginning they provide a history of 14 this very unusual event. Because apart 15 from things like motor vehicle 16 accidents, accidental fatal injury in 17 the young is very uncommon, and so the 18 -- the absence of such a history 19 forthcoming during the course of it, 20 but to me really only coming along as a 21 possibility at the end also caused me 22 to be suspicious about -- about the 23 veracity or the truth of that. And -- 24 and now I realize that -- that though 25 that -- that aphorism or that principle

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1 may be correct, I don't think it's my 2 role as a pediatric pathologist to try 3 and make a judgment call using that -- 4 that, but nevertheless, I think that 5 that did colour my degree of 6 suspicion." 7 DR. CHARLES SMITH: Yes. 8 MR. PETER WARDLE: Do you recall saying 9 that? 10 DR. CHARLES SMITH: Yes, mm-hm. 11 MR. PETER WARDLE: Now I want to take you 12 to Tyrell's case. 13 DR. CHARLES SMITH: Okay. 14 MR. PETER WARDLE: And you remember 15 Tyrell's case; it's a case where the caregiver gives a 16 history -- 17 DR. CHARLES SMITH: History, mm-hm. 18 MR. PETER WARDLE: -- of an accidental 19 fall -- 20 DR. CHARLES SMITH: That's right. 21 MR. PETER WARDLE: -- around the home. 22 DR. CHARLES SMITH: Yes. 23 MR. PETER WARDLE: And do you think in 24 retrospect, sir, that perhaps this is one (1) of those 25 cases where you may have applied that aphorism?

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1 DR. CHARLES SMITH: That aphorism 2 actually is one (1) which, to the best of my knowledge, I 3 learned in a paper that was published -- a position paper 4 taken to the nat -- of the National Association of 5 Medical Examiners that was published after Tyrell's case. 6 Though -- though certainly I would have in 7 the back of my mind, sort of that possibility, I think -- 8 I think that the strength of that aphorism ca -- came 9 later, so I'll try and help you specifically with -- with 10 Tyrell, but -- but it will be to the best of my 11 recollection. 12 MR. PETER WARDLE: Well, that's all we 13 can ask of you, sir. 14 DR. CHARLES SMITH: Mm-hm. 15 MR. PETER WARDLE: Can I ask you to take 16 out the overview report for Tyrell? 17 18 (BRIEF PAUSE) 19 20 MR. PETER WARDLE: And I'm going to take 21 you to paragraph 104, and perhaps just to orient 22 yourself, we can start with paragraph 102. 23 DR. CHARLES SMITH: Yes. 24 MR. PETER WARDLE: And then you'll see if 25 we look at page 103 -- paragraph 103 and 104 is the final

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1 autopsy report signed by you. Do you see that? 2 DR. CHARLES SMITH: Yes. 3 MR. PETER WARDLE: And then if you look 4 at paragraph 104, I'm going to direct you to the last 5 paragraph on the page. 6 "According to the caregiver, Tyrell was 7 healthy and fine until he fell on the 8 evening of January 18. According to 9 her, he was jumping on a couch and 10 jumped backward off the couch, lost his 11 footing and fell backward, hitting his 12 head on a marble table or a tile floor. 13 He immediately got up and tried to run 14 forward but fell and struck his 15 forehead. He cried, then settled, and 16 slept." 17 Do you see that? 18 DR. CHARLES SMITH: Yes. 19 MR. PETER WARDLE: And then going over, 20 sir, to your post-mortem examination report at paragraph 21 143. 22 23 (BRIEF PAUSE) 24 25 DR. CHARLES SMITH: Yes.

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1 MR. PETER WARDLE: You'll see towards the 2 bottom of that page, under the heading Scalp -- 3 DR. CHARLES SMITH: Yes. 4 MR. PETER WARDLE: -- and I'm going to 5 read the second paragraph: 6 "There was a dark red contusion 7 measuring 3 x 2.5 centimetres 8 immediately superior to the right 9 eyebrow. This dark red hemorrhage was 10 located adjacent to the medial aspect 11 of the yellow discolouration which 12 extended laterally over the right 13 temporal area to end anterior to the 14 right ear." 15 DR. CHARLES SMITH: Yes. 16 MR. PETER WARDLE: And then two (2) 17 paragraphs down: 18 "There was dark red contusion of the 19 left..." 20 I'm not going to be able to pronounce it: 21 "...occipital scalp." 22 DR. CHARLES SMITH: Close. Occipital. 23 MR. PETER WARDLE: Occipital. Thank you, 24 Doctor. 25 DR. CHARLES SMITH: The second -- the

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1 second "c" is an "s". 2 MR. PETER WARDLE: 3 "...occipital scalp over an area 4 measuring 8.5 x 6 centimetres. It was 5 in a semicircular configuration with an 6 irregular outline." 7 Doesn't the history, and the observations 8 you made at autopsy, immediately suggest the possibility 9 of a classic contrecoup injury? 10 DR. CHARLES SMITH: No. As I -- as I in 11 -- well, it -- it -- the history would require its 12 consideration even though, admittedly, it was uncommon. 13 And -- and I certainly considered -- 14 considered it in terms of the neuropathologic 15 examination. Yes. 16 MR. PETER WARDLE: Is there anything in 17 your written post-mortem report to indicate that you 18 considered it, sir? 19 DR. CHARLES SMITH: No. That's not the 20 sort of thing that -- that I would have included in -- in 21 a report because that's part of the interpretation, or 22 speculation, or reasoning that was not part of the 23 reports. 24 MR. PETER WARDLE: You consider that to 25 be speculation; that you had considered a possibility of

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1 an accidental fall, and you had discounted it? You 2 describe that as speculation, sir? 3 DR. CHARLES SMITH: Well no. No, I -- 4 I've used the wrong word there, and I'm sorry, Mr. 5 Wardle. 6 The -- the report was to be the -- the 7 anatomic findings -- you know, findings in anatomic 8 pathology, with a cause of death. 9 The reports were not to distill, give 10 weight, give reasons for -- correlate with histories, or 11 anything. Those -- those -- that kind of description, I 12 think, would be included in reports produced in some 13 jurisdictions. 14 But in Ontario, at that time, that is not 15 -- that was not a practice. 16 MR. PETER WARDLE: You didn't tell the 17 police, I take it, that you'd considered this possibility 18 and discounted it? 19 DR. CHARLES SMITH: I don't -- I don't 20 think so. No. 21 MR. PETER WARDLE: You didn't tell Dr. 22 Mian that you'd considered this possibility and 23 discounted it? 24 DR. CHARLES SMITH: I -- I don't think 25 that anyone had -- had considered the possibility, as

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1 best I knew the chart. 2 MR. PETER WARDLE: You didn't tell the 3 Crown, Mr. Armstrong, that you'd considered this 4 possibility and discounted it, correct? 5 DR. CHARLES SMITH: No, I don't recall 6 that, no. 7 MR. PETER WARDLE: And if we go forward, 8 sir, in the overview report to paragraph 262, you'll see 9 that Dr. -- that Mr. Armstrong asked for a consultation 10 with Dr. Robin Humphreys. 11 Do you see that? 12 DR. CHARLES SMITH: Yes, I see that. 13 MR. PETER WARDLE: And I take it you -- 14 you knew Dr. Humphreys? 15 DR. CHARLES SMITH: Yes. Mm-hm. 16 MR. PETER WARDLE: He's a person of 17 excellent reputation, correct? 18 DR. CHARLES SMITH: Absolutely. 19 MR. PETER WARDLE: And you also knew this 20 Crown, as I understand it, Mr. Armstrong, correct? 21 DR. CHARLES SMITH: Yes. 22 MR. PETER WARDLE: A very experienced 23 Crown? 24 DR. CHARLES SMITH: Yes. 25 MR. PETER WARDLE: And you'll see that

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1 Dr. Humphreys' opinion is set out on the next couple of 2 pages. 3 DR. CHARLES SMITH: Yes. 4 MR. PETER WARDLE: And he describes in 5 his report under timing and mechanism of injury: 6 "The possibility that there were two 7 (2) separate blows to the head created 8 first by striking it on the table or 9 floor and then secondly, after again 10 falling to the floor." 11 Do you see that in that long paragraph in 12 the middle of that page? 13 DR. CHARLES SMITH: Yes. 14 MR. PETER WARDLE: You didn't tell anyone 15 at the preliminary inquiry, did you, sir, that you had 16 considered the possibility of contrecoup injury and had 17 discounted it? 18 DR. CHARLES SMITH: No. No. The 19 question wasn't asked of me, and -- and I -- to the best 20 of my knowledge I didn't proffer it as one of the 21 possibilities. 22 MR. PETER WARDLE: And then, sir, if we 23 look at your written evidence today in this inquiry, 24 page 98. 25 DR. CHARLES SMITH: Yes.

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1 MR. PETER WARDLE: You comment on Dr. 2 Crane's report. 3 DR. CHARLES SMITH: Yes. 4 MR. PETER WARDLE: And then you say: 5 "Dr. Crane also postulates the theory 6 that this was not simply a case of a 7 child falling backwards but a situation 8 of a child jumping, so that there was a 9 potential trajectory of the child 10 before striking the back of his head on 11 the marble table or tile floor." 12 And then going on: 13 "Dr. Crane also suggests the 14 possibility of contrecoup injury and 15 goes on to criticize Dr. Smith for 16 failing to consider this possibility." 17 And then you'll see at the bottom of this 18 page, it says: 19 "Indeed, in view of the thesis proposed 20 by Dr. Ferguson and Dr. Crane, if this 21 was not a short distance fall but 22 rather flying leap involving very 23 different forces, the possibility of an 24 accidental cause becomes more 25 reasonable."

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1 Have I read that correctly? 2 DR. CHARLES SMITH: Yes. 3 MR. PETER WARDLE: It -- it's very 4 nuance, isn't it, sir, this description? Hard to 5 understand? 6 DR. CHARLES SMITH: Hard to understand -- 7 MR. PETER WARDLE: Hard to understand for 8 a layperson, one almost, say, a little obfuscation going 9 on here? Are you trying to suggest, sir, in this 10 paragraph that Dr. Crane might be in error in suggesting 11 that the child jumped? 12 Is that what you're suggesting? 13 DR. CHARLES SMITH: I -- I had a number 14 of different accounts of what may have happened. The 15 opinions that I gave, at any given point, would have been 16 on the account that I understood, or the hypothetical 17 that I understood, with the -- with the advantage of the 18 review -- OCCO review -- the -- the information, as I 19 understood it, may have represented a much more forceful 20 event than I had perceived or conceived, based on the 21 information that I earlier understood. 22 And so -- 23 MR. PETER WARDLE: Sir -- sir, I hate to 24 be -- 25 DR. CHARLES SMITH: What -- what I'm

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1 trying to do -- 2 MR. PETER WARDLE: -- to correct you. 3 DR. CHARLES SMITH: Yeah. 4 MR. PETER WARDLE: I hate to correct 5 you, -- 6 DR. CHARLES SMITH: Mm-hm. 7 MR. PETER WARDLE: -- but I just read to 8 you your own history -- 9 DR. CHARLES SMITH: Yes. 10 MR. PETER WARDLE: -- from the overview 11 report at paragraph 107 -- 12 DR. CHARLES SMITH: Yes. 13 MR. PETER WARDLE: -- where you describe 14 the history from the caregiver: 15 "According to her, he was jumping on a 16 couch and jumped backwards off the 17 couch." 18 DR. CHARLES SMITH: Yes, mm-hm. 19 MR. PETER WARDLE: That was your history. 20 DR. CHARLES SMITH: Yes. 21 MR. PETER WARDLE: Didn't you have an 22 obligation to consider that at the time? 23 DR. CHARLES SMITH: I -- I did. Yes, I 24 did. 25 MR. PETER WARDLE: And isn't -- with

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1 respect, sir, this document, your written evidence, just 2 another attempt to obfuscate this time with respect to 3 the evidence of Dr. Crane, isn't it? 4 DR. CHARLES SMITH: No, no, not at all. 5 My opinion was based on -- my interpretation of the head 6 injury was based on what I understood then. My 7 understanding now of what could have happened is 8 different than what I understood then. 9 A jump and a fall was -- what I had 10 understood. In trying to dissect through the OCCO review 11 and Dr. Crane's viewpoint, I see that he -- that -- that 12 the information that I understood may, in fact, not have 13 been the situation, and rather, there may have been a 14 more forceful injury than I understood. 15 And I recognize that -- that that more 16 forceful event brings credibility to the possibility of 17 accidental injury. I'm not obfuscating. I'm trying to 18 show that -- that the certainty of my position has 19 shifted. 20 MR. PETER WARDLE: I'm sure the certainty 21 of your opinion has shifted, Dr. Smith. Isn't it a 22 little more simple than that? Isn't this just another 23 one (1) of those cases where you got it wrong and you 24 just don't want to admit it? 25 DR. CHARLES SMITH: No, at the time, I

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1 believe my opinion was reasonable and it -- it fit within 2 the realm of reason. It was supported by -- by others. 3 There were differing opinions. I recognize that, but I 4 also believe that medical experts can disagree. 5 I -- I don't deny that at all. I believe 6 that my opinion was reasonable at that time. 7 MR. PETER WARDLE: Sir, you testified at 8 the preliminary inquiry, and in your binder for Tyrell -- 9 DR. CHARLES SMITH: Yes. 10 MR. PETER WARDLE: -- at Tab 10 is your - 11 - is some of your evidence, your evidence-in-chief; this 12 is PFP105484. Hopefully, we're on the same page. 13 DR. CHARLES SMITH: I -- I'm sorry. 14 MR. PETER WARDLE: Tab 10. 15 DR. CHARLES SMITH: Tab 10, yes, page -- 16 MR. PETER WARDLE: And I -- and I don't 17 want to rush you, Dr. Smith, so take your time. 18 DR. CHARLES SMITH: Mm-hm. 19 MR. PETER WARDLE: So, we should be 20 looking at the same document, it's PFP105484. This is 21 your evidence in a preliminary inquiry on January the 22 5th, 2000. 23 DR. CHARLES SMITH: Yes. 24 MR. PETER WARDLE: Okay. So, if we look 25 at this -- I'm sorry, I'm going to just start by going

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  1  back one (1) tab because I've got you in the cross-
  2  examination, and I wanted to start with the evidence-in-
  3  chief.  My apologies.
  4                 So go back one (1) tab to Tab 9.
  5                 DR. CHARLES SMITH:   Yes, I have that.
  6                 MR. PETER WARDLE:   Also January the 5th.
  7                 DR. CHARLES SMITH:   Yes.
  8                 MR. PETER WARDLE:   PFP012356.  And you'll
  9  see, sir, first of all, at page 22 of that decision
 10  you're giving, again, a long answer in your evidence-in-
 11  chief.  Do you have that page sir --
 12                 DR. CHARLES SMITH:   I have --
 13                 MR. PETER WARDLE:   -- page 22?
 14                 DR. CHARLES SMITH:   Yes, I do, yes.
 15                 MR. PETER WARDLE:   And you'll see at the
 16  bottom you say:
 17                   "And let me -- and having posed that
 18                   question for you, let me answer the
 19                   question, and it is this.  The
 20                   literature is very clear that this type
 21                   of head injury cannot occur as the
 22                   result of an accidental fall that
 23                   occurs about the home.  The only
 24                   exception to that rule is..."
 25                 And I think it should have been epidural

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1 hemorrhage, are we -- 2 DR. CHARLES SMITH: That's correct, yes. 3 MR. PETER WARDLE: Correct. 4 "Children can suffer head injuries that 5 should not be life threatening, but if 6 it happens that a blood vessel is torn 7 such that blood accumulates in the 8 epidural space between the dura and the 9 skull, that can result in death, but it 10 is a different -- a different clinical 11 picture." 12 Can you see that? 13 DR. CHARLES SMITH: Yes. 14 MR. PETER WARDLE: And then over a couple 15 of pages to page 24, at the bottom of the page: 16 "A number of studies have been 17 published about lethal outcome from 18 children who die in falls from a 19 height. Now those studies come out of 20 -- have been published over a period of 21 about twelve (12) years now, and they 22 come out of a number of centres out of 23 -- out of New York, Chicago, Oakland. 24 San Diego, California has a -- has a 25 very good child investigation program

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1 as well. 2 And the studies are all quite 3 consistent in that, in and though, they 4 answer the question in slightly 5 different ways, they are consistent and 6 -- and the statements are this: Number 7 one, children do not die from a fall of 8 less than 15 feet, unless it is, you 9 know, kind of epidermal hemorrhage, and 10 you know something very unusual which 11 we are not dealing with here." 12 Have I read that accurately? 13 DR. CHARLES SMITH: Yes. 14 MR. PETER WARDLE: And then going to the 15 next tab in your binder, sir, PFP105484. 16 17 (BRIEF PAUSE) 18 19 MR. PETER WARDLE: You'll see at page 20 17... 21 22 (BRIEF PAUSE) 23 24 MR. PETER WARDLE: Towards the bottom of 25 the page:

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1 "And here are the principles, and once 2 again, you throw them out if you want 3 to. Blunt force injury, shaking blunt 4 impact head injury or abdominal 5 injuries are much more likely to be 6 inflicted by a man than a woman. That 7 man is not likely the biological parent 8 of the infant or child. They are a 9 person who usually have a criminal 10 record. Violence is part of their 11 background. They have often grown up 12 in a home where violence has been used 13 to work out family problems. They tend 14 to be someone who has not finished high 15 school. They have not held a job in 16 the last six (6) months. They tend to 17 be on welfare. All of these very 18 unfortunate social factors that come 19 into play here, probably they may 20 represent some source of stresses or 21 triggers that lead to this." 22 So, sir, would you agree with me first 23 that ten (10) years after you gave your evidence in 24 Amber's case, you were still giving Courts "pop 25 sociology" that had nothing to do with your expertise as

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1 a pediatric forensic pathologist, correct? 2 DR. CHARLES SMITH: I was giving them 3 background, yes. Yeah, circumstantial, or -- yeah, 4 circumstantial type of information, yes. I recognize 5 that. I recognize now it was wrong. 6 MR. PETER WARDLE: And then you'll see 7 over the page at page 19, Mr. Struthers asks you this 8 question, towards the bottom of the page. Mr. Struthers 9 is the defence counsel, and he asks you this, sir: 10 "Now we've discussed this out of court. 11 I'm going to ask you to discuss it with 12 me in court. Essentially, almost as a 13 matter of policy it seems, you've come 14 to the conclusion that children, and I 15 believe that you said this to the 16 officer on Thursday, December the 17th, 17 1998 -- I'm sorry, I correct myself, on 18 January the 6th, 1999, which was a 19 Wednesday, almost a year ago when you 20 met with the officer -- that quotes 21 'accidental falls of this nature do not 22 cause children to die'. [and then you 23 answer] 24 Accidental falls of which nature? 25 Q: Well, accidental falls of any

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1 nature, household falls. 2 A: Household, yes. Yes. 3 Q: That's something about, at least, 4 in the past, reasonable doctors have 5 disagreed, isn't it? 6 A: Yes. If you go back ten (10) years 7 or more you can certainly run into 8 that. There have been some very good 9 studies published in the last ten (10) 10 years that I think are helping to 11 clarify that, but yes, and I know some 12 people who still disagree with that, 13 although I believe they're quite 14 wrong." 15 Now, sir, wasn't that your opportunity, 16 when Mr. Struthers questioned you in this case, to 17 outline candidly and fully all of the literature about 18 the short fall phenomenon that had taken place since the 19 beginning, since the seminal Duhaime study, all the 20 debate back and forth, all the information you must have 21 read, and, sir, isn't it fair to say you didn't put that 22 debate out there for Mr. Struthers to see, and you didn't 23 put it out there for the Court to see. 24 You continued to take the position that 25 you were right and everyone else was wrong, isn't that

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1 right? 2 DR. CHARLES SMITH: No. No. In fact, I 3 didn't take the position that I was right and everyone 4 else was wrong. There were a number of medical experts 5 in this case from different viewpoints who -- who gave a 6 similar opinion; some did not but some did. 7 I don't think we necessarily need to go 8 through that but you're aware, at least, from Dr. Becker, 9 a pediatric neuropathologist, he gave an opinion based on 10 his experience that aligned itself with mine. 11 MR. PETER WARDLE: Am I right, sir, that 12 after this case was over, after you were no longer doing 13 forensic autopsies in suspicious death cases, after the 14 controversy erupted over several of those cases, you gave 15 a very poorly advised interview to Jane O'Hara, correct? 16 DR. CHARLES SMITH: You're absolutely 17 correct. I understand. I -- 18 MR. PETER WARDLE: And I don't need to 19 take you to that, sir, but is it not true that in that 20 case, not only did you say disparaging things about some 21 of the doctors who had testified in Amber's case but you 22 even disparaged the Crown attorney in this case; the case 23 we're dealing with right now, Tyrell's case. 24 DR. CHARLES SMITH: Yes. And that was 25 wrong of me. I acknowledge it, and I would apologize to

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1 Mr. Armstrong. I was angry and upset. My unguarded mark 2 -- remarks were not called for, and I am embarrassed by 3 them. 4 MR. PETER WARDLE: I want to turn very 5 briefly to Nicholas and then to Jenna, and I'm not going 6 to spend a great deal of time on these cases, sir, in 7 view of the very thorough job My Friend, Ms. Rothstein, 8 did in taking you through particularly Jenna. 9 DR. CHARLES SMITH: Okay. 10 MR. PETER WARDLE: Starting with 11 Nicholas, sir, you've apologized to the family, correct? 12 DR. CHARLES SMITH: I -- I hope that 13 they've interpreted that to be a -- a genuine apology, 14 yes. 15 MR. PETER WARDLE: You've acknowledged 16 that, in this case, you were unduly focussed on the cause 17 and effect of head injury as described in the history, 18 correct? 19 DR. CHARLES SMITH: Yes. Yes. 20 MR. PETER WARDLE: And you've 21 acknowledged that in this case your opinion was pivotal, 22 correct? 23 DR. CHARLES SMITH: Yes, absolutely. 24 MR. PETER WARDLE: And I -- I'm not going 25 to take you through the details, but we've already heard

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1 evidence from Inspector Keetch about the police 2 investigation, and you'll recall that there were five (5) 3 things initially that caused you to have a certain belief 4 about the cause of death and some of those things changed 5 as the investigation went on, correct? 6 DR. CHARLES SMITH: I -- I, yeah, I 7 believe that -- that's right, without specifically trying 8 to count to five (5), yes. 9 MR. PETER WARDLE: All right. And you've 10 acknowledged in your written evidence and, again, I'm not 11 going to take you to that, that you accept the findings 12 of the College of Physicians and Surgeons with respect to 13 your conduct in Nicholas' case, correct? 14 DR. CHARLES SMITH: I do, yes. 15 MR. PETER WARDLE: I just want to ask, 16 sir, briefly about the CAS investigation. 17 DR. CHARLES SMITH: Mm-hm. 18 MR. PETER WARDLE: After the police 19 investigation ended, we heard from Inspector Keetch that 20 the police notified the Children's Aid Society, and we 21 know you and Dr. Cairns attended a meeting in May of 1998 22 with representatives of the Society, do you recall that? 23 DR. CHARLES SMITH: I recall a -- a 24 meeting at the Coroner's Building. 25 MR. PETER WARDLE: And just to take out

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1 the Nicholas overview report, if you could turn it up, 2 sir. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER STEPHEN GOUDGE: It is in 7 Volume II of the overview reports, Dr. Smith. It is the 8 first tab then. 9 DR. CHARLES SMITH: Okay. Yes. Yes, I - 10 - yes, I have Nicholas' overview, yes. 11 12 CONTINUED BY MR. PETER WARDLE: 13 MR. PETER WARDLE: And I'm only going to 14 take you to the one (1) reference, sir, -- 15 DR. CHARLES SMITH: Mm-hm. Okay. 16 MR. PETER WARDLE: -- it's paragraph 87. 17 18 (BRIEF PAUSE) 19 20 MR. PETER WARDLE: And this refers to the 21 meeting with the Children's Aid Society that you attended 22 with Dr. Cairns, and a number of people were present at 23 that meeting, do you see that, sir? 24 DR. CHARLES SMITH: Yes, I see that, yes. 25 MR. PETER WARDLE: And then there's an

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1 affidavit which was filed in the CAS proceedings. 2 DR. CHARLES SMITH: Yes. 3 MR. PETER WARDLE: And what we have here 4 is from that affidavit; it's an affidavit of Ms. Haines, 5 do you see that? 6 DR. CHARLES SMITH: Yes. 7 MR. PETER WARDLE: And I'll just read you 8 part of it. Ms. Haines swore that Drs. Smith and Cairns 9 were unequivocal at the May 8th, 1998 meeting that Dr. 10 Smith's diagnosis of Nicholas' death was correct. She 11 stated, quote: 12 "It was indicated by Dr. Smith, which 13 was not questioned by Dr. Cairns, who 14 was present at the time, that he was 99 15 percent certain that this child had 16 died due to a non-acci -- accidental 17 trauma that had been inflicted on the 18 child by the sole caregiver, being the 19 mother, who had the opportunity to do 20 so during the time frame for this type 21 of injury." 22 And first of all, sir, would you 23 acknowledge that your role not only was pivotal in the 24 police investigation, but it was pivotal in the CAS 25 investigation and in the decision to go forward with

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1 apprehension proceedings? 2 DR. CHARLES SMITH: Yes. Yes, that's how 3 I would understand it. 4 MR. PETER WARDLE: And do you appreciate 5 in retrospect, sir, that this was an overly certain, 6 overly conclusive opinion for you to give at the time 7 with the information you had? 8 DR. CHARLES SMITH: Yes, I recognize that 9 my thinking was too narrow, yes, and my confidence was 10 too great; I recognize that I erred in that. 11 MR. PETER WARDLE: And do you recall, 12 sir, that when you were interviewed by Ms. O'Hara, she 13 asked you about this case? 14 DR. CHARLES SMITH: I'm -- I'm sure she 15 did, but without -- without going right back to it, I -- 16 you can quote the interview, if you want, and I'll be 17 embarrassed by what I said. 18 MR. PETER WARDLE: I would like you to 19 read it, sir. It's in the binders prepared by the 20 Commission, Volume I at Tab 14. 21 22 (BRIEF PAUSE) 23 24 DR. CHARLES SMITH: Yes, I have it. 25 MR. PETER WARDLE: That's the same

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1 interview, sir, where you suggested that Dr. Ommaya, one 2 of the experts who testified in the Amber case, worked 3 for the CIA. Do you recall saying that to Ms. O'Hara? 4 DR. CHARLES SMITH: Yes, that had been 5 quoted to me by another forensic pathologist, yes. 6 MR. PETER WARDLE: That's the same 7 interview where you said nasty things about Mr. 8 Armstrong, the Crown Attorney in Tyrell's case, correct? 9 DR. CHARLES SMITH: That's correct. 10 MR. PETER WARDLE: That's the same 11 interview where you said nasty things about Mr. McKenna, 12 the Crown in Sharon's case, correct? 13 DR. CHARLES SMITH: Yes. 14 MR. PETER WARDLE: And at page 18 of that 15 interview, you're asked about Mary Case, do you see that? 16 DR. CHARLES SMITH: Yes. 17 MR. PETER WARDLE: You know what Mary 18 Case said in that case about your opinion. 19 DR. CHARLES SMITH: Yes, I do, yes. 20 MR. PETER WARDLE: She wasn't very 21 flattering, was she? 22 DR. CHARLES SMITH: No, she -- no, she 23 wasn't. 24 MR. PETER WARDLE: And then you said in 25 that back and forth with Ms. O'Hara, this is about a

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1 third of the way down: 2 "The opinion is, it's undetermined, and 3 I never wanted the charges to go 4 anywhere with it, and I was really 5 quite upset with the Children's Aid 6 Society in how aggressive they were." 7 Hardly a fair characterization, is it, Dr. 8 Smith, in retrospect? 9 DR. CHARLES SMITH: Well, the first half 10 of the statement is certainly true. I remember there was 11 a meeting with the Crown attorney and -- you know, and I, 12 for my own part, would not have wanted to be pivotal in 13 that process or pivotal in, you know, the evidence in 14 that process. I -- 15 MR. PETER WARDLE: Sir, weren't you and 16 Dr. Cairns pushing the CAS? You told them you were 99 17 percent certain. 18 DR. CHARLES SMITH: The -- my level of 19 certainty was great; I acknowledge that. That was an 20 error. I -- I can't remember the meeting well enough to 21 know if I was pushing them or they were pushing me, and 22 so this statement; this unguarded statement may be wrong. 23 I'm -- I sincerely regret the entire 24 interview. At this point in time, I do not have a clear 25 recollection of the meeting with the CAS and with Dr.

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1 Cairns. 2 And if they have different recollections - 3 - if they have -- if they have clear recollections, then 4 -- then you should accept them. 5 MR. PETER WARDLE: Dr. Smith, this is not 6 the only occasion you gave information to the CAS 7 relating to a suspicious child death. You would have 8 done that many times over the years, correct? 9 DR. CHARLES SMITH: I've been called to 10 Court to do that, yes. 11 MR. PETER WARDLE: And you've had many, 12 many discussions out of Court with CAS workers, isn't 13 that fair? 14 DR. CHARLES SMITH: No, I wouldn't say 15 many, many, no, no, not -- not a large number, but I have 16 been called to Court from time-to-time. 17 MR. PETER WARDLE: Do you recall having 18 discussions with the CAS in Jenna's case? 19 20 (BRIEF PAUSE) 21 22 DR. CHARLES SMITH: I can recall some 23 discussion that related to the CAS, but I don't know I -- 24 right now without -- I don't clearly remember exactly who 25 it was with, but I remember there was a CAS issue.

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1 MR. PETER WARDLE: Well, you recall the - 2 - the famous meeting with Dr. Ein, I take it, that we've 3 heard a lot of evidence about here, right? 4 DR. CHARLES SMITH: In his office, yes. 5 MR. PETER WARDLE: All right, I'm sure 6 that's -- that's a meeting that you probably remember 7 even today, correct? 8 DR. CHARLES SMITH: I remember parts of 9 that meeting, yes. 10 MR. PETER WARDLE: Yeah. So let's just 11 turn up the overview report for a minute. 12 DR. CHARLES SMITH: The overview report 13 on Jenna? 14 MR. PETER WARDLE: Jenna, please, sir. 15 COMMISSIONER STEPHEN GOUDGE: It will be 16 in the first volume, Dr. Smith. 17 18 (BRIEF PAUSE) 19 20 DR. CHARLES SMITH: I -- I have the 21 overview, yes. 22 MR. PETER WARDLE: So, this is after the 23 Preliminary Inquiry, sir, and I'm going to ask you to go 24 to paragraph 92. 25 DR. CHARLES SMITH: Yes. Oh, paragraph

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1 92, sorry. 2 3 (BRIEF PAUSE) 4 5 MR. PETER WARDLE: This is the meeting at 6 which Dr. Ein told the Crown that he was 99 percent -- 7 99.9 percent certain from the autopsy find -- findings 8 that the fatal injuries occurred after five o'clock on 9 the day of Jenna's death. 10 I've added the word "fatal" -- 11 DR. CHARLES SMITH: Yes, that's right, 12 yeah. 13 MR. PETER WARDLE: -- to what's in the 14 overview report. 15 DR. CHARLES SMITH: Yeah, he -- it -- the 16 overview report says the injuries occurred after 5 17 o'clock, yes. 18 MR. PETER WARDLE: And if the fatal 19 injuries occurred after 5:00 p.m., we know from the 20 evidence we've heard that that was on the babysitter's 21 watch, correct? 22 DR. CHARLES SMITH: That's correct. 23 MR. PETER WARDLE: Okay. And we've heard 24 evidence, from Mr. Gilkinson, that this meeting and what 25 he was told by Dr. Ein led him to start thinking at that

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1 point about whether the charges should be withdrawn 2 against Ms. Waudby, correct? 3 DR. CHARLES SMITH: Well, that -- that 4 could be. I -- I haven't -- I haven't read that part of 5 Mr. Gilkinson's evidence, but I'll accept that, yes. 6 MR. PETER WARDLE: Now, do you remember, 7 sir, that in the meantime, Ms. Waudby was in the process 8 of giving birth to another child? 9 DR. CHARLES SMITH: I -- I don't have a 10 specific recollection of that. 11 MR. PETER WARDLE: Well, let me refresh 12 your memory. 13 DR. CHARLES SMITH: Okay. 14 MR. PETER WARDLE: She was about to give 15 birth at the time of this meeting. 16 DR. CHARLES SMITH: I can accept that. 17 MR. PETER WARDLE: She did give birth -- 18 DR. CHARLES SMITH: Yes. 19 MR. PETER WARDLE: -- to a boy -- 20 DR. CHARLES SMITH: Yes. 21 MR. PETER WARDLE: -- and there were 22 apprehension proceedings involving that child. 23 DR. CHARLES SMITH: Yes. 24 MR. PETER WARDLE: And you had 25 discussions with the Children's Aid Society, didn't you,

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1 sir, in the context of those proceedings? 2 DR. CHARLES SMITH: I -- I can't remember 3 specifically discussions, no. 4 MR. PETER WARDLE: Let me turn you, sir, 5 to Volume III, this would be the volumes behind you -- 6 the smaller volumes. That's correct, sir. It would be 7 Volume III. 8 COMMISSIONER STEPHEN GOUDGE: Is it 9 Commission Counsel's volume? 10 MR. PETER WARDLE: These are the volumes 11 prepared by parties, I believe, Tab 24, and it's 12 PFP300011. 13 COMMISSIONER STEPHEN GOUDGE: Sorry, what 14 tab? 15 MR. PETER WARDLE: Tab 24. 16 COMMISSIONER STEPHEN GOUDGE: Thank you. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. PETER WARDLE: 21 MR. PETER WARDLE: Now this is a CAS 22 note, and you'll see, in fact, it actually as, at the 23 top, Kawartha Children's Aid on it. It's a CAS note, May 24 7, 1999. And just to orient you, sir, this is after the 25 child -- the boy -- has been born, and after there has

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1 been one (1) court appearance involving child 2 apprehension proceedings. 3 DR. CHARLES SMITH: Okay. I have no 4 recollection of this so -- so I'll -- whatever you say, 5 I'll -- I'll accept, because I have no recollection of 6 this whatsoever. 7 MR. PETER WARDLE: So let me just read it 8 to you, sir. It -- it says: 9 "Addendum to B.B. note, re. telephone 10 call with Dr. C. Smith on May 6." 11 You can just see that faintly above the 12 word "Smith". 13 DR. CHARLES SMITH: Yes. 14 "When Dr. Smith was advised that there 15 was a possibility of [and this is Ms. 16 Waudby's baby] returning home, he 17 replied, 'Well, I guess I'll be doing 18 his autopsy too'." 19 Now just pausing there, sir, does that 20 give us some sense of the inner Dr. Charles Smith and 21 your approach to these kinds of cases? 22 DR. CHARLES SMITH: No. I'm -- I have no 23 recollection of this, and I'm -- and -- and I'm 24 embarrassed by this. 25 MR. PETER WARDLE: Well, would -- would

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1 it be fair to say that you're embarrassed by it, because 2 it suggests that not only had you pre-judged the criminal 3 charge that was before the court -- 4 DR. CHARLES SMITH: No, I had never pre- 5 judged the criminal charge on that case. Never. 6 MR. PETER WARDLE: But you were also -- 7 DR. CHARLES SMITH: Never. 8 MR. PETER WARDLE: -- you were also 9 making a sweeping characterization about what would 10 happen to this newborn baby? 11 DR. CHARLES SMITH: The -- the comment is 12 a -- is -- is one that I shouldn't have made. There are 13 other comments in there which -- which may adequately 14 reflect some of my concerns about -- about a child. 15 The comment that I made in quotes is -- is 16 one that I shouldn't have made. But I never -- never 17 pre-judged any -- any possible person in Jenna's death. 18 I always recognized that there was a range of 19 possibilities in which the fatal injury could have 20 occurred, and I never ruled out the possibility of an 21 earlier injury on pathologic grounds. 22 MR. PETER WARDLE: So let me take you 23 again, sir, forward in time. And I want you to now look 24 at Volume II of the supplementary volumes, the smaller 25 volumes. The volume supplied by parties with standing at

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1 Tab 17, and this is PFP147797. 2 I'm sorry, it's Volume II, sir, of the 3 smaller volumes, Tab 17. It should be the volumes behind 4 you or maybe you have them. 5 COMMISSIONER STEPHEN GOUDGE: Do you want 6 to use mine, Mr. Wardle, or does he got it there? 7 MR. PETER WARDLE: I think actually he's 8 got it. Actually he had it in front of him, sir. My 9 mistake, I directed you to a smaller Volume, because you 10 had a fairly fat one in front of you. 11 DR. CHARLES SMITH: Sorry. 12 13 CONTINUED BY MR. PETER WARDLE: 14 MR. PETER WARDLE: My mistake. So let's 15 just slow down a little bit. 16 DR. CHARLES SMITH: Okay. 17 MR. PETER WARDLE: Now this is after that 18 case was over. 19 DR. CHARLES SMITH: Yes. 20 MR. PETER WARDLE: After the complaint by 21 Ms. Waudby to the College. 22 DR. CHARLES SMITH: Yes. 23 MR. PETER WARDLE: After you'd responded 24 to that complaint, you had an interview with the Chair of 25 the Board of Assessors, if I can put it that way?

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1 DR. CHARLES SMITH: Dr. -- Dr. Cohle, 2 yes, -- 3 MR. PETER WARDLE: Correct. 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: And so this is in June 6 of 2002, do you see that? 7 DR. CHARLES SMITH: I see that, yes. 8 MR. PETER WARDLE: And your counsel was 9 present, correct? 10 DR. CHARLES SMITH: Yes, as I recall. 11 MR. PETER WARDLE: And there's a -- 12 beginning on the sixth page, there's a discussion of Ms. 13 Waudby's case. 14 Do you see that? 15 DR. CHARLES SMITH: Yes. Mm-hm. 16 MR. PETER WARDLE: And there's a 17 discussion of the hair, and I'm not going to take you 18 through any of that. I want to go forward to page 8. 19 DR. CHARLES SMITH: Yes. 20 MR. PETER WARDLE: In the middle of the 21 page, there's a question from Dr. Cohle: 22 "Was the opinion at that time that the 23 injuries of Jenna occurred at the time 24 of death?" 25 And you'll see that there's a number of

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1 answers you give about the timing of the injuries, do you 2 see that? 3 DR. CHARLES SMITH: Yes. 4 MR. PETER WARDLE: And then down a little 5 further: 6 "There are things that can be used as 7 controls but they are far from perfect. 8 My position all the time in meetings 9 with police and Regional Coroners is 10 that the killer, in parentheses, was 11 someone other than the babysitter 12 because it was not the twenty-four (24) 13 hour mark. The real issue is that the 14 mother left home eight (8) to nine (9) 15 hours prior to the child's death. She 16 was to come back within the hour, but 17 came back eight (8) or nine (9) hours 18 later." 19 Have I read that accurately, Dr. Smith? 20 DR. CHARLES SMITH: Well, you've read it 21 accurately. That is, you know, that is not -- that is 22 not how I -- how I recall that, because I don't -- I 23 don't ever -- I don't ever remember being certain as to 24 the timing of -- of fatal injuries. I believe I always 25 acknowledged that there was the possibility that the

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1 fatal injury occurred at an earlier time. 2 So I find this -- this -- this whole thing 3 rather -- just a little confusing, and it certainly 4 doesn't sit with what I remembered and nor does it sit 5 with what I had been trying to, albeit, not clearly 6 communicate to the Court. 7 MR. PETER WARDLE: Not focussed on the 8 timing of the injury, sir, and focussed on those last two 9 lines. 10 DR. CHARLES SMITH: Mm-hm. 11 MR. PETER WARDLE: 12 "The real issue is that the mother left 13 home eight (8) to nine (9) hours prior 14 to the child's death. She was to come 15 back within the hour but came back 16 eight (8) or nine (9) hours later. 17 DR. CHARLES SMITH: Yes. 18 MR. PETER WARDLE: We've seen from your 19 notes, your belatedly produced notes, that that was 20 information you were given around the time of the 21 autopsy, sir. 22 DR. CHARLES SMITH: Yes, that's right. 23 MR. PETER WARDLE: And now you're saying, 24 years later, your take-away from this case, sir, if I can 25 put it that way, the real issue you want to communicate

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1 to Dr. Cohle is that the mother had left the home saying 2 she would come back within the hour but didn't get back 3 for eight (8) or nine (9) hours. 4 Isn't that a fair characterization of what 5 you communicated here? 6 DR. CHARLES SMITH: Well, if -- if that's 7 the statement I gave concerning the history that was 8 provided to me, which was the basis of determination of 9 exclusive opportunity, then that would have been correct 10 information that -- that had been -- that was information 11 I had and so if that was what Dr. Cohle -- I -- I can�t 12 remember this. 13 MR. PETER WARDLE: Sir, with respect, 14 exclusive opportunity -- 15 DR. CHARLES SMITH: Mm-hm. 16 MR. PETER WARDLE: -- is not your domain. 17 You're not a police officer. You're not a Crown 18 attorney. You're supposed to be a pediatric forensic 19 pathologist. 20 DR. CHARLES SMITH: That's correct. 21 That's correct. 22 MR. PETER WARDLE: And this information, 23 with respect, sir, should not had been in your thinking 24 at any point in time, not at the original autopsy and 25 certainly not in an interview with the College years

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1 after the event. Isn't that fair? 2 DR. CHARLES SMITH: I -- I don't think 3 that's fair. I think that -- that one of the 4 responsibilities in, you know, in the interface between 5 pathology and the legal system, is the obligation to try 6 and interpret the pathology in light of the -- of the 7 evidence or the information. 8 My autopsy report was done as an -- as -- 9 as, I believe, a very careful and -- and thorough 10 documentation of the -- of the findings. The 11 interpretation of the findings indicates injuries, some 12 without healing reaction and some with healing reaction. 13 The significance in terms of the legal 14 process is, How does that healing reaction relate to the 15 information that would be of significance to the law and 16 -- and ultimately to Ms. Waudby. And so I believe that 17 Dr. Cohle would do just exactly what I would do, is -- in 18 any given -- excuse me, in any given case say, the two 19 (2) questions, are the injuries accidental or non- 20 accidental? The first one's been answered, no question. 21 The second one (1) was, can we establish 22 timing of the injuries? And -- and on that one (1) my 23 answer would be, not concisely based on the type -- on 24 the question that would asked based on the information 25 that the police provided or the coroner provided.

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1 So it would impor -- just as -- as I would 2 need to know that in terms of trying to help the police 3 or Court, what time is the critical issue and can I 4 address it, so Dr. Cohle, I presume, would want to be in 5 the same position. 6 So providing that has nothing to do with - 7 - you know, with the -- with the true -- with the issue 8 as to how long the mom left or -- or any of those 9 circumstances. It's what is the number that the police 10 or the Judicial System is working with to try and 11 establish the question that they are asking pathology 12 about exclusive opportunity. 13 MR. PETER WARDLE: Sir, the last document 14 for today, so I can wrap up this subject and we'll be out 15 in five (5) minutes. In the Commission binders for your 16 evidence, Volume II... 17 18 (BRIEF PAUSE) 19 20 DR. CHARLES SMITH: I think I have it. 21 MR. PETER WARDLE: -- Tab 26 -- I'm 22 sorry, Tab -- yes, Tab 26. 23 DR. CHARLES SMITH: Yes. 24 MR. PETER WARDLE: These are you -- this 25 is a transcription; it says PFP303644.

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1 DR. CHARLES SMITH: Yes. 2 MR. PETER WARDLE: It's a transcription 3 of your notes from Jenna's autopsy. 4 DR. CHARLES SMITH: Yes. 5 MR. PETER WARDLE: And you'll see -- 6 we're going to look just at the first page, and you've 7 told us already that this is information you may have 8 obtained from the investigating coroner or from a police 9 officer, correct? 10 DR. CHARLES SMITH: Yes. Yes, that's 11 right. 12 MR. PETER WARDLE: And you'll see it 13 makes reference to cocaine use by the parents. 14 DR. CHARLES SMITH: Yes. 15 MR. PETER WARDLE: It makes reference to 16 coffee, there's an arrow, six (6) to seven (7) hours, 17 question mark, hooker. 18 DR. CHARLES SMITH: Yes. 19 MR. PETER WARDLE: Dr. Smith, given what 20 we've heard from you in this Inquiry, and given the 21 documents we've seen and all of the evidence of other 22 witnesses at this Inquiry, what confidence can we have 23 that you filtered out this information when you did that 24 poor girl's autopsy? 25 DR. CHARLES SMITH: Because that autopsy

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1 was a very careful cataloguing of the gross and 2 microscopic injuries, and the critical issue at the 3 autopsy is that of the timing of issues which is to be 4 determined microscopically, not by naked eye observation, 5 and that was very thorough sampling that would be 6 available for anyone to look at and to review. 7 So the reality is that that information I 8 recognized a short while later when being interview -- or 9 be -- being given information by the police was, at 10 least, in part wrong, so the truth is that even before 11 the autopsy was done, I knew some of this information was 12 wrong. 13 So, am I filtering it out? I am trying to 14 determine the critical issue that the autopsy may have to 15 answer. The purpose of the history is to provide some 16 context for the performance and the understanding of the 17 autopsy. It does not -- it does not colour the final 18 diagnosis, but it can aid in making sure that the autopsy 19 answers all the questions it is needed to answer. 20 The -- that statement -- the six (6) or 21 seven (7) hours -- is information which only a short 22 while later I learned was not what the police information 23 was. The second -- the second statement there is 24 something that was given to me on a telephone call and 25 never repeated again.

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1 As far as I know, that was misinformation 2 because I have no reason to believe it's correct 3 whatsoever. 4 MR. PETER WARDLE: Sorry, sir, I don't -- 5 I don't want to be mean to you, but -- 6 DR. CHARLES SMITH: Mm-hm. 7 MR. PETER WARDLE: -- haven't we just 8 seen that you repeated that information to the College of 9 Physicians and Surgeons three (3) years later? 10 DR. CHARLES SMITH: The -- the 11 information about the coffee break? 12 MR. PETER WARDLE: About the mom saying 13 she would be out for an hour and being away for a much 14 longer period of time? 15 DR. CHARLES SMITH: Yes. 16 MR. PETER WARDLE: You didn't filter it 17 out at all, sir? 18 DR. CHARLES SMITH: No, that's important 19 information because it says what is the issue here, what 20 is the critical issue that the pathology must -- must 21 help answer. The history is the mother went out for 22 coffee and returned not six (6) or seven (7) hours later, 23 but perhaps eight (8) and a half hours later. 24 So whatever the information is from the 25 coroner or the police, it would be important for the

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1 pathologist who looks at the glass slides to know what is 2 the -- is the question that the death investigators need 3 to -- need to answer. 4 MR. PETER WARDLE: Mr. Commissioner, that 5 would be an appropriate time. 6 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 7 Wardle. We'll pick up tomorrow morning at 9:30. You 8 have about an hour and five (5) minutes. 9 MR. PETER WARDLE: Thank you, sir. 10 COMMISSIONER STEPHEN GOUDGE: I'm going 11 to ask Mr. Centa to review with counsel the times, and we 12 may need to compress the lunch hour slightly so we can 13 finish on time at the end of the day tomorrow. 14 So we'll rise now until 9:30 tomorrow 15 morning. 16 17 (WITNESS RETIRES) 18 19 --- Upon adjourning at 4:41 p.m. 20 21 Certified Correct, 22 23 __________________ 24 Rolanda Lokey, Ms. 25