An apology from discredited former forensic pathologist Dr. Charles Smith read aloud by his lawyer at the Inquiry into Pediatric Forensic Pathology in Ontario is “too little, too late,” a lawyer for nine people affected by Smith’s conclusions tells Law Times.
Announced last spring following the results of a coroner’s review into a number of cases involving Smith, the public inquiry led by Justice Stephen Goudge began last week with Smith’s apology, read by his lawyer Niels Ortved.
“Dr. Smith wishes to publicly acknowledge to the commission that in the 20 years that he performed autopsies at the direction of the Office of the Chief Coroner of Ontario, he made a number of mistakes for which he is truly sorry,” Ortved told the inquiry.
While he noted that Smith “sincerely regrets these mistakes and apologizes to all who may have been affected by his errors,” Ortved added that Smith wished to emphasize that, “any such mistakes were made honestly and without any intention to harm or obstruct the pediatric death investigations in which he was involved.”
Smith was not present, but is scheduled to testify in January.
Toronto lawyer Peter Wardle, who is representing nine individuals at the inquiry, tells Law Times that his clients feel that the apology was “too little too late.”
He adds that, “It’s not exactly clear yet what exactly Dr. Smith is apologizing for; whether he’s apologizing for all the cases, some of the cases, a few of the cases, and its 10 years after the events in many cases.”
The inquiry was called in April on the heels of a coroner’s office review of 45 criminally suspicious and homicide cases involving Smith, who carried out autopsies and provided opinions on cases involving pediatric deaths until 2002.
According to the report, reviewers for the office of the chief coroner had concerns in 20 of the 45 cases involving Smith that were reviewed, ranging from relatively minor to potentially more serious issues. Among those 20 cases, there were 12 convictions and one finding of not criminally responsible. In other cases, charges were laid and subsequently thrown out, or individuals were considered as suspects.
One of the cases reached the Court of Appeal earlier this year, and resulted in the acquittal of William Mullins-Johnson more than 13 years after he was convicted of first-degree murder in the 1993 death of his niece, based partly on evidence given at trial by Smith.
As the public hearings began last Monday, Goudge reiterated that the commission’s mandate is to identify failings that may have occurred, and to make recommendations to “restore and enhance public confidence in pediatric forensic pathology in Ontario, and its future use in investigation and criminal proceedings.”
While the inquiry won’t report on the individual cases that have been the subject of criminal proceedings, or express any conclusion about anyone’s professional discipline or criminal or civil liability, it will be reviewing aspects of each case and has presented overview reports for 18 of the 20 cases brought into question by the coroner’s review.
A number of individuals involved in the 20 cases have standing at the inquiry, however, the full names of those involved in 10 of the cases are the subject of a publication ban.
As the inquiry unfolds, Wardle says his clients are looking to know more about what took place at the institutional level and “why Dr. Smith appears to have had no real oversight in his activities.”
As an end result, “They are very interested in making sure that the commissioner makes recommendations to ensure that this kind of tragedy doesn’t happen again,” he says.
Wardle adds that it is unlikely that any of his clients will take the stand during the inquiry.
Meanwhile, just days before the inquiry began, the Supreme Court ordered a new trial for a couple convicted in the death of their infant son based on Smith’s evidence. The unanimous majority noted that new expert evidence available after Marco and Anisa Trotta’s 2004 appeal “discredited” evidence given at the trial by Smith.
In 1998, Marco Trotta was convicted of second-degree murder, aggravated assault, and assault causing bodily harm arising from the 1993 death of his infant son, Paulo. The child’s mother, Anisa Trotta, was acquitted at their joint trial of manslaughter, but convicted of criminal negligence causing death and failure to provide the necessaries of life.
Trotta was sentenced to life in prison with no chance of parole for 15 years. Anisa was sentenced to five years in prison. She has since served her sentence while Trotta was granted bail earlier this year, a few weeks after the release of the results of the chief coroner’s review.
The Court of Appeal upheld their convictions in 2004, but following the appeal, expert opinions by Ontario chief forensic pathologist Dr. Michael Pollanen and Newfoundland’s chief medical examiner Dr. Simon Avis became available. This new evidence discredited the evidence given at trial by Smith, who was an expert called by the Crown, and rendered the evidence of another Crown witness, Dr. David Chan, unreliable as a result.
While the Supreme Court noted that the Crown conceded that the fresh evidence should be admitted and that Marco Trotta’s conviction on the murder charge could not stand, the Crown urged the court to substitute a conviction for manslaughter instead of ordering a new trial, saying that Smith’s evidence could have affected the jury’s finding on the fault element, but not the element of causation.
The court, however, believed that Smith’s evidence may have influenced the jury’s conclusion on both elements of the murder charge.
The Crown also argued that the fresh evidence had no bearing on the convictions other than the counts of murder and criminal negligence causing death, but the court ruled that it had bearing on all counts.
“[I]f a new trial must be had, as we think it must, the preferable course is to order an untainted trial on all counts,” wrote Justice Morris Fish on behalf of the majority.
Both appellants were seeking acquittals on the counts of murder and criminal negligence causing death, but the court stopped short of this result.
“We are satisfied that acquittals would at this stage be inappropriate, since we are not prepared to say that there remains no evidence upon which a properly instructed jury, acting reasonably, could find the appellants guilty of the homicide-related offences of which they were convicted at trial,” wrote Fish.
In reaching its decision, the court took several factors into account, including the central importance of Smith’s evidence to the Crown’s case, that Smith’s evidence is “now conceded to be unreliable,” that the Court of Appeal identified several errors made at trial that related not only to the homicide charges, but to the other counts as well and that it is impossible to determine what effect Smith’s evidence had on the jury’s evaluation of the Trottas’ credibility.
“In this light, we think it neither safe nor sound to conclude that the verdicts on any of the charges would necessarily have been the same but for Dr. Smith’s successfully impugned evidence. To attempt at this stage to insulate the effect of Dr. Smith’s evidence on one count from its possible effect on the others would amount to an unwarranted exercise in appellate speculation,” wrote Fish.
Crown counsel Lucy Cecchetto, who represented the attorney general at the Supreme Court, told Law Times the Crown will re-prosecute in the case.
According to the Crown’s factum, “the fresh evidence makes it clear that while medical findings compel the forensic classification of death as undetermined, a jury could look beyond the medical findings at the whole picture and conclude homicide.”
“Whatever the merits of the Smith cases are in other scenarios, he clearly made a mistake in this case, and he made some other mistakes because he suggested certain errors, but there’s a wealth of evidence to re-prosecute,” Cecchetto says, adding that this is reflected in the factum.
Michael Lomer, Trotta’s lawyer, and James Lockyer, representing Anisa, could not be reached for comment.
