JUSTICE SPECIAL REPORT

DEAD WRONG

How the faulty findings of an eminent pathologist led to erroneous murder charges and ruined lives

JANE O’HARA May 14 2001
JUSTICE SPECIAL REPORT

DEAD WRONG

How the faulty findings of an eminent pathologist led to erroneous murder charges and ruined lives

JANE O’HARA May 14 2001

DEAD WRONG

JUSTICE SPECIAL REPORT

How the faulty findings of an eminent pathologist led to erroneous murder charges and ruined lives

JANE O’HARA

THREE YEARS AGO, when Dr. Charles Randal Smith settled into the witness box of the Kingston, Ont., courtroom, he looked perfectly at home. He'd brought along his teenage daughter to watch him testify at this preliminary hearing, even though it was not exactly family fare. The tall, grey-haired pathologist, who since 1992 has run the Ontario pediatric forensic pathology unit at Torontos Hospital for Sick Children, was there to provide details of the gruesome death of a Kingston girl.

Crown prosecutors viewed the case as one of the most sensational child murders ever in Canada. Their theory was straightforward: on June 12, 1997, Louise Reynolds, a 28-year-old single mother from Kingston, had killed her seven-year-old daughter, Sharon, by stabbing her more than 80 times with a pair of scissors. Reynolds’s motive? Prosecutors argued she was angry at the child for having head lice.

For Kingston police and Crown prosecutors, Smith’s opinion was crucial.

His 10-page report on the autopsy he performed on Sharon’s perforated body was the linchpin of the second-degree murder case. But it didn’t hold. Just over three months ago, in late January, Smith’s theory was totally discredited when the Crown abruptly dropped the murder charges against Reynolds. This, after numerous experts—some hired by the Crown—disagreed with Smith and concluded

instead that a powerful dog had mauled the girl.

By then Reynolds had spent 3'/2 years in custody because of the outlandish charge. Now she is suing the 51-year-old Smith, Toronto dental oncologist Robert Wood (who advised the prosecution that the marks did not look like dog bites) and the Kingston police force for $7 million. But as damning as that case sounds, it is just one ofat least six to cast doubt on Smiths expertise.

Now, the alarm bells are going off. Smith himself has voluntarily stopped doing autopsies for the coroners office and asked for a review of his work in the Reynolds case and in another Toronto child death case that depended on his testimony. And the provincial coroner’s office has taken possibly unprecedented steps to restore faith in the system. Ontario’s deputy chief coroner, Dr. James Cairns, has had Crown prosecutors and defence lawyers informed that his office is “more than

willing” to have independent experts examine Smiths findings. The reviews Smith requested, he added, would have happened in any case. “It has to be done,” said Cairns, “but it’s obviously not something one does jumping up and down for joy.”

The consequences in two controversial cases were particularly dire. In Timmins, Ont., a family was bankrupted by the $150,000 cost of defending a 12-year-old girl against a wrongful charge of manslaughter, based on Smith’s testimony, that took almost three years to resolve. “After this case, we owned nothing,” says the girl’s father, who sold the home he had built and cashed in his retirement savings to pay for her defence. And in Sudbury, Ont., a young woman was traumatized by the accusation of killing her child, while her father was burdened by $100,000 in legal costs to discredit Smith’s testimony.

All of which raises some thorny questions: How did Dr. Charles Smith become the man almost solely responsible for investigating suspicious child deaths in Ontario? How has he managed to keep that position? And how does his distinguished reputation square with the reality of some damaging mistakes? His boss, Ontario chief coroner Dr. James Young, declined to discuss Smith’s situation with Macleans last week, saying, “There are too many other matters that need to be resolved in and around this issue.” Pressed to comment on Smith’s general performance, he replied: “He’s been involved in a number of complex and important cases and I think he’s always tried to do his best to offer expert advice to the court.”

The questions surrounding Smith’s performance are all the more important because his opinion carries great weight in court—so much so that defence counsel often has to go out of the province to find the expertise to counter his autopsy reports. In a recent case in which Smith’s evidence against a Toronto woman charged with killing a young boy in her care is under review, lawyers for the defendant found other doctors reluctant to take him on. “You don’t contradict the Hospital for Sick Kids and you don’t contradict Dr. Smith,” says criminal lawyer Dyanoosh Youssefi. “It’s not career enhancing. A lot of doctors are reluctant to say anything publicly against him.”

Smith is a master in the courtroom. His curriculum vitae runs for 22 pages and he once boasted he would write “the definitive textbook on pediatric pathology.” His manner during testimony—bland and sometimes plodding—is persuasive, honed over a decade as Ontario’s top forensic expert on suspicious child deaths. In the mid-’80s, he taught law students how best to examine expert witnesses like himself. In 1994, he told The Canadian Press that his forensic unit had a higher batting average than colleagues in Alberta when it came to getting convictions against child killers.

Smith’s track record for convictions is well known in the small, tight-knit world of Canadian forensic pathology. But is that necessarily a matter of pride? The job of a forensic pathologist, says Dr. Thambirajah Balachandra, Manitoba’s chief medical examiner, does not include taking anyone’s side: “Not the prosecution. Not the defence. Not even the side of the dead.” At times, there is no clear evidence of a crime, says Balachandra, and the cause of death should be recorded as “undetermined.” It is crucial to be cautious and objective, he says, because a faulty autopsy report can send innocent people to jail. “We have the power to ruin people’s lives and destroy families,” observes Balachandra. “We must be very careful.”

Smiths involvement in the case of the Timmins girl brought harsh commentary from the bench as long ago as 1991 (page 62). Ontario Provincial Court Judge Patrick Dunn criticized him for not even following his own prescribed autopsy procedures in accusing the

Grade 6 student of shaking a 16-month-old baby to death. Cairns, the deputy chief coroner and a close colleague of Smith, dismisses Dunns criticism. “The judge,” says Cairns, “didn’t understand the medical evidence.”

Smith’s involvement in another tragic baby death set off a nightmare for a grief-stricken single mother in Sudbury, Ont. In 1995, university student Lianne Gagnon (now Lianne Thibeault) was struggling to come to terms with the sudden death of her 11-monthold son, Nicholas, while in her care. A police investigation ruled out foul play. But a year later, after the Ontario chief coroner’s office asked Smith to review the case, he came to a startling conclusion: homicide. “In the absence of an alternate explanation,” he wrote, “the death of this young boy is attributed to blunt head injury.”

Smith also recommended that the Sudbury police begin a “thorough investigation.” Then, on June 25, 1997, he exhumed the baby’s body, as his own 11-year-old son watched. After perform-

ing an autopsy, Smith concluded that Nicholas had died from brain swelling “consistent with blunt force injury,” although he later conceded he could not rule out asphyxiation.

The Crown still did not lay charges. Smith, however, told Children’s Aid Society workers he was “99-per-cent certain” that Thibeault, then pregnant with a second child, had killed Nicholas. The CAS arranged to take wardship of Thibeault’s unborn child and placed her name on its list of known child abusers. When she gave birth, Thibeault was not allowed to be alone with her newborn daughter, Nicole.

With that, Thibeault’s father, Maurice Gagnon, began a legal batde that cost him $100,000 of his savings to clear his daughter’s name and get her baby back. Ultimately, even the coroner’s own independent expert took issue with Smiths findings. Dr. Mary Case, the medical examiner in St. Louis and a leading crusader in the war against child abuse, summarily dismissed Smith’s opinion about a blow to the head. “There are no findings on which to make such a conclusion,” she stated in a report she wrote for the Ontario chief coroner’s office.

CAS officials did an abrupt about-face. They asked the court to drop all wardship proceedings against Thibeault and took her name off the Child Abuse Register. In a letter to the Gagnon family’s lawyer, the society expressed sympathy, saying it was now confident

they would “provide a good life” to the little girl it had attempted to take. Said the CAS: “At this time we are of the view that the death of Nicholas Gagnon was an unexplained tragedy.”

Thibeault has found it hard to recover. “This experience changed my life forever,” she says. “I no longer trust anyone who has power over someone else’s life. Thanks to Dr. Smith, I now think of Nicholas as a case study or an autopsy report; not simply as my precious son.”

Cairns, who has worked closely with Smith for a decade, calls him “a wonderful asset” in the investigation of child deaths. “He’s a friend. I admire his work and he is greatly admired at the Hospital for Sick Children,” Cairns told Macleans. “He’s done a tremendous amount of good over the years. His sincerity is beyond reproach.” Smith himself did not respond to numerous interview requests from Macleans. Cairns said the recent controversies have taken a toll on Smith. “He’s not one of these Teflon people who says I don’t give a damn what people say,” said Cairns. He noted that his colleague had been involved in many successful legal cases:

• In 1996, two crack-addicted parents, Michael Podniewicz and Lisa Olsen were convicted of murdering their six-month-old child in Toronto. Smith, who had found evidence of multiple fractures, testified the child died of pneumonia stemming from the injuries. “It was the only time we’ve had a conviction of a husband and wife for murdering their child,” said Cairns.

• In 1984, when a three-month-old baby died in Collingwood, Ont., a coroner ruled it sudden infant death syndrome (SIDS). Ten years later, Smith exhumed the body when evidence of abuse came to light. After performing a second autopsy, Smith reported evidence of multiple fractures and said the baby died of asphyxia. In 1998, the mother, who had been charged with manslaughter, pleaded guilty to assault causing bodily harm.

• In 1998, an Oshawa father was convicted of killing his eightmonth-old son after Smith’s forensic sleuthing unearthed findings of child abuse. Originally a pathologist deemed the child had died of SIDS. But Smith exhumed the body and did a second autopsy —which showed evidence of a recent skull fracture, a broken arm and bruises.

Smith also has his supporters among defence lawyers. Thirteen years ago, Charles Ryall, a Niagara Falls, Ont., criminal lawyer, encountered the pathologist while defending a man who ultimately received a four-year sentence for manslaughter in the death of his nine-week-old son. Smith did the autopsy on the child and testified about the injuries in a Welland, Ont., court. Ryall was so impressed with Smith’s evidence he congratulated him after he left the stand. “I told him that he’d done an excellent job as a witness and a pathologist and that it was a pleasure to have been in court with him,” said Ryall. “Just because he made a mistake in the Reynolds case doesn’t mean he makes a mistake every time.”

Most Sundays, Smith is a pillar of another community. He is an elder in a newly formed evangelical congregation that meets in a high-school auditorium in Richmond Hill, 30 km north of Toronto. Two years ago, Smith and his wife, Karen—a family doc-

tor and part-time coroner in nearby Aurora—left their old parish and volunteered to help start this satellite church as part of their mission to bring new converts to the Christian & Missionary Alliance. Ifs a Christian denomination that emphasizes “world evangelization” and boasts 2.5 million followers in 40 countries. While Charles Smith chats with churchgoers after the service, Karen sells audiotapes of the pastor’s sermon.

The couple have two teenage children and the trappings of success: their pickup truck and SUV bear his and hers vanity licence plates, FRNSIC and CORONR. They live in a two-storey house, painted baby blue, on a farm in Queensville, Ont., 60 km north of Toronto. There, in an area surrounded by hobby farms and lush golf courses, Smith raises cattle and takes refuge from a job that entails dissecting children who have met horrible deaths.

Smith graduated in medicine from the University of Saskatchewan in 1975. He completed his training in pathology at the University of Toronto and by 1980 was certified as an anatomic pathologist, a specialist who analyzes cells and tissues to identify diseases. (In 1999, he also received U.S. certification in pediatric pathology.) He joined the staff of the Hospital for Sick Children in 1981 as one of a number of hospital pathologists on general rotation responsible for examining tissue samples and performing autopsies on children who died of natural or accidental causes. By the early ’80s, he was doing coroner’s autopsies on children who had met sudden or suspicious ends.

Canada has no system for accrediting forensic pathologists. Now, increasing numbers of Canadian pathologists are going through rigorous accreditation programs in the United States and Britain. But most, like Smith, have learned on the job. In 1992, the Ontario coroner’s office created a pediatric forensic pathology unit at Sick Kids and Smith was installed as director. He has a full-time position at the hospital (earning $168,458.50 last year) and works part time for the coroner’s office.

In the Kingston courtroom in April, 1998, as on so many other days he has testified, Smith began unreeling his findings in a long dissertation that at times sounded like a lecture. Sharon Reynolds, he stated, died from “multiple stab wounds.” The seven-year-old had been partially scalped, he said, probably with a pair of scissors. Smith was confident and in control. When the prosecutor tried to ask a question, Smith admonished him: “If I can just sort of continue the Reader’s Digest version, and then you may want to spend a little while on more detail.”

As Smith described the “stab wounds” on the upper arm, neck and head of Sharon’s body, Louise Reynolds listened numbly. For

10 months since her arrest, she had been held in a segregation unit at the Quinte Detention Centre. After listening to Smith describe stab wounds on her daughter’s body that she knew were not of her making, the Grade 8 dropout came to her own conclusions about the famous pathologist. “Dr. Smith didn’t know what he was doing,” she said later. “I thought he was an idiot.”

From the beginning, Reynolds had maintained her innocence and police never found a murder weapon. Besides, there was another explanation for how Sharon died. A pit-bull terrier named Hat Trick— owned by Sharon’s stepfather—was in the basement the day the girl died. The Kingston police told Smith before he started the autopsy that the dog was in the house. Yet no attempt was made to take moulds of the dog’s teeth to match them to the wounds. During cross-examination, Smith bristled when Reynolds’s lawyer, Wayne Rumble, repeatedly suggested the wounds were caused by a dog. “I

suggest that you’re absolutely wrong,” replied Smith. “This doesn’t look like a pit bull or any other carnivorous animal. These wounds have been caused by a sharp instrument.”

But Rumble had two aces up his sleeve—experts who said Smith had it wrong. One was Dr. Rex Ferris of Vancouver, a British-trained forensic pathologist. After studying the crime scene and the autopsy photographs, Ferris wrote in a report shown to the Crown that Smith’s evidence was “either wrong or oversimplifications.” Robert Dorion of Montreal, a forensic dentist, was just as damning in a report entered into the court proceedings. A founding father 25 years ago of the American Board of Forensic Odontology, the organization that certifies forensic dentists, Dorion has studied thousands of dog-bite cases. In his opinion, this was a classic example of dog-bite wounds.

One giveaway, Dorion says, was the identical pattern of perforations on the inside and outside of the girl’s upper right arm—marks clearly made by a jaw clamping down. “Imagine the scenario if it were stab wounds,” says Dorion. “Can you imagine someone stabbing so many times on the outside of the arm, and then lifting up the arm and stabbing as many times on the inside of the arm? It doesn’t make sense. Even his own descriptions of the wounds told me they were bite marks.”

The wheels of justice grind slowly. Just last Jan. 25, fully 21 months after Smith testified, the Crown withdrew its murder charge against Louise Reynolds. Smith had amended his earlier opinion after attending a second autopsy on July 13, 1999, conducted on Sharon’s skeletal remains by Ontario’s chief forensic pathologist, Dr. David Chiasson. There, Chiasson concluded that some of the marks were dog bites. Smith, too, came to that point of view. “After the second autopsy,” Cairns told Macleans, “he did not disagree that many of the wounds were dog bites.” The prosecution then sent Sharon’s bones to University of Tennessee forensic anthropologist Steven Symes, the leading North American expert in

tool-mark evidence. Symes’s reported conclusion: there were no marks of any sharp instrument other than Smiths scalpel blade during the original autopsy.

Kingston Crown attorney Bruce Griffith explained the prosecutions change of heart in court. “Dr. Smiths original opinion had

been unequivocal; none of the wounds were dog bites,” said Griffith. “The Kingston police had relied on this expert’s opinion as to the cause of death of the child.” When Smith reversed himself, the prosecution case collapsed. Concluded Griffith: “The Crown no longer has proof that this death was caused by stab wounds. We are duty bound to withdraw this charge.” With that, Louise Reynolds went free.

Since then, Smith has faced a number of

challenges. Among them are the review of his part in the Reynolds case, and Reynolds’s civil suit against him. In the second case under review, an experienced Crown prosecutor, Frank Armstrong, took the rare step in January of asking for a judicial stay of proceedings against a 28-yearold Toronto woman. Maureen Laidley was charged with killing the three-year-old son of her boyfriend. A trial, said Armstrong, might result “in a miscarriage of justice.” Laidley says the boy had been jumping off a couch, slipped and banged his head on a marble coffee table. But police arrested her after Smith told them that injuries like that cannot cause death. With the charge stayed, Laidley is planning to sue Smith.

Laidley’s lawyer, John Struthers, says other lawyers working on cases involving Smith have been talking to him. Toronto lawyer James Lockyer, a director of the powerful Association in Defence of the Wrongfully Convicted, wants to assist in the reviews of Smith’s cases. Lockyer believes that given Smith’s record in the Reynolds case, “there is now good reason to be concerned with the validity of his opinion in other cases.”

On top of that, Ontario’s College of Physicians and Surgeons is considering two complaints, one from Maurice Gagnon and the other from the father of the Timmins girl, about Smith’s performance in the Sudbury and Timmins autopsies. And other Crown prosecutors in Toronto seem cautious about Smith’s autopsy evidence. In February, just before the pathologist was to testify, Crown attorney Rita Zaied delayed the preliminary inquiry of a couple charged with murdering their three-month-old child. Prosecutors wanted an independent determination of the cause of death. Says Young: “That doesn’t necessarily mean there’s a problem at this point.” On March 21, the Crown sought an adjournment of another upcoming murder trial in Toronto in order to have an independent expert review Smith’s findings.

In February, before deciding not to answer any more questions from Macleans, the Ontario chief coroner defended Smith’s work. “Expert opinion is never a matter of right and wrong,” Young said. “A lot of people assume that one person is wrong and one person is right and it just isn’t that straightforward. These are opinions.” ES