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Kirk Makin
Globe and Mail
April 2, 2008

A year-long inquiry into botched forensic autopsies of children has rendered Dr. Charles Smith a hapless scapegoat for the failings of the entire Ontario coroners system, Mr. Justice Stephen Goudge was told yesterday.

In a powerful closing address as the curtain came down at the inquiry, a lawyer for Dr. Smith decried “a veritable klieg light” of attention that has allowed the coroners system to wriggle out of the full scrutiny it deserves.

”Dr. Smith was demonized at this inquiry for the very things that were standard operating procedure,” lawyer Niels Ortved said. “Dr. Smith was very much a product of his environment. The environment you have heard about was primed for problems – for Dr. Smith and every other pathologist practising within it.”

In another closing submission yesterday, a lawyer for the Office of the Chief Coroner of Ontario unexpectedly denounced the province for trying to lay all the blame on Dr. Smith, when, in fact, its underfinancing of OCCO lay at the root of the scandal.

OCCO lawyer Brian Gover said the province pioneered the tactic several years ago at the Walkerton inquiry, when it blamed a single, low-level employee – Stan Koebel – in the tainted-water scandal.

Mr. Gover agreed with Mr. Ortved that the rot within the coroners system went far beyond Dr. Smith, but he argued that it was not OCCO officials who bear the blame, but the province, which starved it of the funds it needed to recruit competent forensic pathologists and properly supervise their work.

”OCCO submits that the lack of resources has been a chronic theme of this inquiry,” Mr. Gover said. “Given the chronic under–funding those at the helm of the system cannot be criticized in any fair way for not doing more than they did.”

Pointing to a raft of recommendations OCCO made yesterday to transform its operation, Mr. Ortved said that the proposed “dramatic overhaul of the coroners operation speaks volumes” about how deficient it has been on accountability and oversight.

The coroner’s system was antiquated, haphazard and idiosyncratic, Mr. Ortved said: “Communications were sporadic, uneven and invariably undocumented. As for quality control measures, they were virtually absent.”

Mr. Ortved said that Dr. Smith has freely admitted to being self-taught in pediatric pathology, prone to delivering very subjective testimony in the courtroom, and that he was tardy in filing autopsy reports. But he said that his client shared these shortcomings with every other pathologist in North America.

Mr. Ortved denied that Dr. Smith was solely responsible for wrongful convictions in any of the 20 death investigations at the centre of the inquiry. At most, Mr. Ortved said, Dr. Smith played a partial role in convictions that may or may not have been wrongful – and other experts usually corroborated his opinions.

”The various pathologists in the criminal justice system were too enmeshed to attribute the particular outcome of a case to the actions of a single pathologist,” Mr. Ortved said. “Dr. Smith’s failings, which he has conceded, do not stand alone, and should not be allowed to obscure the full scope of the systemic inadequacies.”

Earlier in the day, lawyers for nine parents fighting for exoneration joined the Association in Defence of the Wrongly Convicted in calling for a review of every case involving a criminal conviction that Dr. Smith might have touched directly or indirectly.

”We must surely be concerned with each and every pediatric pathology case that has taken place in the province,” said Mr. Lockyer, a lawyer for the parent group. “Everyone who did the work saw Dr. Smith as an icon.”

Even pathologists who read his opinions or heard Dr. Smith lecture might have fallen under his influence and erred in their own cases, Mr. Lockyer said.

Mr. Lockyer and Louis Sokolov, a lawyer for AIDWYC, also called for a review of all cases involving forensic pathology in Eastern Ontario, where the inquiry heard that serious problems were uncovered shedding doubt on many criminal convictions involving adult victims.

The lawyers said the overall review should include cases as early as 1983, because a 25-year period would encompass individuals convicted of first-degree murder but not yet eligible for parole.

”I would urge you to include convictions regardless of whether they involved guilty pleas or convictions at trial,” Mr. Lockyer said. He noted that seven of his nine clients pleaded guilty because they were offered plea bargains that were too attractive to turn down, given the prospect of going to trial and spending their lives in prison.

Mr. Lockyer disparaged the Ontario government for earlier telling the inquiry that a widespread probe of Dr. Smith’s cases is not needed. “What a sad position for the province to have taken,” he said. “What a regrettable position to take, instead of walking up to the plate.”

”This inquiry is an opportunity for you to discover past miscarriages of justice, which surely exist in pediatric forensic pathology cases,” Mr. Lockyer told Judge Goudge. “If it were not taken now, when would it be? If the opportunity is lost here, it is an opportunity that will never be regained.”

After receiving gratitude from lawyers at the inquiry for his fairness, Judge Goudge, a stickler for scheduling precision, adjourned proceedings at precisely the minute he had planned months ago to end it. His report is due by Sept. 30.