Oh Canada, Part 2 - Judge's blast not enough, wrongfully convicted man says

Originally published by members of the Canadian Press on October 2, 2008.

Judge's blast not enough, wrongfully convicted man says

October 2, 2008

TORONTO — A judicial report's damning criticism of key players in a forensics scandal that saw innocent people branded as child killers in Ontario doesn't go far enough, a victim of wrongful conviction said Wednesday.

While the report found the failings of an "arrogant" forensic pathologist and his bosses were at the heart of the miscarriages of justice, William Mullins-Johnson said those responsible need to be held to further account.

"If they can't, then this whole thing of restoring public confidence goes for naught," said Mullins-Johnson, 38, who spent 12 years in jail for the rape and suffocation of his niece, who actually died of natural causes.

"They invented a crime. They pulled it out of their head and said, 'This guy is guilty of this.' "

Stephen Goudge's findings and 169 recommendations do offer a "little" comfort, said Mullins-Johnson, who added that his horrendous experience still gets "under his skin."

In blunt terms, Goudge's 1,000-page report slams Dr. Charles Smith, the once esteemed pathologist, as well as Ontario's former chief coroner James Young and his deputy, Jim Cairns.

All three played a critical role in wrongful prosecutions that ripped families apart and damaged lives, Goudge concludes.

His assessment of Smith, based on months of evidence, is especially harsh.

The former star in his field "admitted his own arrogance" and dogmatically presented poorly informed and undisciplined opinions on which others relied, Goudge wrote.

The doctor also deliberately frustrated attempts to call him to account and "actively misled" his superiors and the courts.

"Smith was adamant that his failings were never intentional," Goudge wrote.

"I simply cannot accept such a sweeping attempt to escape moral responsibility."

Smith was not on hand for the release, but said in a brief written statement he was "optimistic" the report would have a "positive impact" on pediatric forensic pathology in Ontario.

Goudge, who made no findings of criminal or civil liability, called on the Ontario government to consider compensation for those affected by Smith's work, something the province said it would do.

"Justice Goudge recommends that we develop an approach to compensation, and that is what we will do," said Attorney General Chris Bentley, who added an expert panel would be struck to study the issue.

The judge, however, was careful to note that Smith did not work in a vacuum.

The tragic story is "equally the story of failed oversight," he said, taking aim at Young and Cairns.

Having developed a "symbiotic" relationship with the province's former chief forensic pathologist, they allowed their blind confidence in Smith to persist until the very end and "after much damage had been done."

Despite the poorly defined legislative framework in which he worked, Young must bear the "ultimate responsibility for the failure of oversight," the Ontario Court of Appeal justice concludes.

"Dr. Young continued to defend the indefensible in the name of saving the reputation of the (coroner's office)," Goudge wrote.

"When he finally did act, it was to protect the reputation of the office and not out of concern that individuals and the public interest may already have been harmed."

It was, the report states, "far too little, far too late" and occurred after a decade of "lost opportunities" to fix the situation.

By then, Smith had erroneously concluded a mother had killed her 11-month-old son who had knocked his head on a table, and in another case, insisted a mother had stabbed her seven-year-old daughter to death - when a dog-mauling was responsible.

To minimize the chances of such travesties, Goudge makes recommendations aimed at the training, oversight and accountability of pediatric forensic pathology.

Among other things, he calls for accredited training at Canadian medical schools to certify forensic pathologists.

He also wants the province to create a clear legislative framework for forensic pathologists, along with establishing a specialized forensics unit, a council to oversee the chief coroner's office, and the position of chief forensic pathologist.

Goudge called on the government to provide more money and resources for the forensics field, something he noted was especially needed in more remote and First Nations areas.

The government promised to bring in fresh legislation in line with Goudge's suggestions.

Premier Dalton McGuinty said the province was keen to restore public confidence in its battered pathology system.

"A tragedy has unfolded here in Ontario and we're looking for ways to move beyond that and to redress the wrongs," McGuinty said. "We need to turn the page."

Community Safety Minister Rick Bartolucci apologized on behalf of the province.

Several of Goudge's other recommendations amount to a warning to forensic pathologists to guard against overstepping the limits of their expertise, and to explain complicated findings in unambiguous language.

He urged specialized training for police and prosecutors in pediatric death investigations, and called on trial judges to be critical of expert witnesses.

Gouge also recommended that more than 140 other cases involving forensic pathology be reviewed.

Bentley said the government would move as quickly as it can on the reviews "for those who live in the shadow of suspicion."

When asked if any criminal charges could follow Goudge's report, Bentley said that would be up to the police.

Lawyer James Lockyer, of the Association in the Defence of the Wrongfully Convicted, said that the report would help set aside some miscarriages of justice that have occurred, and would "go a long way" to preventing future wrongful prosecutions.

The findings represent a devastating blow to Smith, once admired across the country for his expertise.

But they might also tarnish the sterling reputation that Young has enjoyed.

The former chief coroner was instrumental in helping lead Ontario's response to the SARS crisis in 2003 and to the huge blackout in August of that year.

He later became a special adviser to the federal deputy minister of public safety.

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For more information about Dr. Charles Smith, his victims and the Goudge Report, see the Charles Smith Blog.