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Colin Perkel
Canadian Press
November 29, 2007

TORONTO – Ontario’s former chief coroner expressed remorse Thursday for his repeated failure to act on a judge’s scathing criticism of pediatric forensic pathologist Dr. Charles Smith, whose evidence led to several wrongful prosecutions involving the deaths of infants.

Testifying at a judicial inquiry, Dr. James Young admitted that he essentially blew off opportunities to take a serious look at criticism that came from a judge presiding over the case of a Grade 6 student who was charged with killing a baby.

“None of them stuck with me,” Dr. Young told the inquiry. “I regret it deeply but I can’t go back and change history.”

In 1988, 16-month-old Amber, of Timmins, Ont., died while in the care of her 12-year-old babysitter, S.M., who maintained the child had fallen downstairs.

The death came at a time when still-controversial “shaken baby syndrome” was working its way into forensic consciousness, and Dr. Smith, who was deemed an expert, concluded that Amber died from brain injuries caused by severe shaking.

Nine other experts disagreed.

In acquitting S.M. in 1991, Justice Patrick Dunn tore a strip off Dr. Smith, who had worked with other pathologists at the Hospital for Sick Children in Toronto on the case.

Judge Dunn attacked Dr. Smith on 16 points, including his failure to consider any other possibilities for the cause of death, and for concluding that Amber had been shaken to death even before performing the autopsy.

Dr. Young said no one ever sent him the judge’s written ruling.

However, commission counsel Mark Sandler produced a complaint letter written in 1999 by the father of a woman accused of killing her son based on Dr. Smith’s opinion.

The letter, which Dr. Young called “astoundingly accurate,” detailed Judge Dunn’s criticism of Dr. Smith in the Amber case.

“I regret I regret deeply that I didn’t read this, it didn’t register, and it didn’t signal something in me,” Dr. Young said of the letter.

“I don’t think I read it.”

Nevertheless, he wrote back to say he had given detailed consideration to the complaint.

Dr. Young also testified that the coroner’s office has no way of tracking cases that end up in court. “You see a weakness there?” Justice Stephen Goudge interjected.

Dr. Young responded that it would be a “monumental feat” for the coroner’s office, which has enough on its plate already, to track so many cases.

“If we’re satisfied that the Crown seems happy and things are running along, we’re not paying attention,” Dr. Young responded.

“We’re moving on to tomorrow’s problems.”

William Mullins-Johnson, who spent a dozen years in jail for raping and suffocating his four-year-old niece based Dr. Smith’s faulty pathology, was contemptuous of Dr. Young’s explanation.

“You’re sent letters, you’re sent complaints, you’re sent judgments from courts, and nothing is triggering?” Mr. Mullins-Johnson said.

“You can’t explain that away with, ‘Oops, I just wasn’t paying attention,’ or, ‘Oops, it wasn’t my responsibility.’ It was his responsibility.”

While he did not elaborate, Dr. Young did say that Dr. Smith told him some time after the acquittal that the judge had expressed the view that had he known more about shaken baby syndrome, he would have convicted S.M., whose full name is covered by a publication ban.

Commission counsel indicated that Judge Dunn maintains he never expressed any such view.

Dr. Young also conceded he paid little attention to a CBC “fifth estate” documentary in November 1999 that raised the Baby Amber case along with Judge Dunn’s criticism of Dr. Smith, nor did he act on a Maclean’s magazine article in May 2001 that did the same.

“It didn’t sink in, that’s all I know,” Dr. Young said.