Theresa Boyle
staff reporter

The alarm first sounded on Dr. Charles Smith 16 years ago.

A Timmins judge had rejected Smith's evidence in acquitting a 12-year-old girl of manslaughter in the death of a child she had been babysitting.

Justice Patrick Dunn had harsh words about Smith, who had wrongly determined that the 16-month-old girl had died from shaken baby syndrome when in fact she had suffered from an accidental head injury. He poked holes in Smith's findings, evidence and testimony.

This is the oldest of 20 cases in which Smith erred that are now coming under scrutiny at the Inquiry into Pediatric Forensic Pathology in Ontario.

Sadly, it was only in the lead-up to the inquiry that former chief coroner Dr. Jim Young says he read Dunn's judgment.

Had he read Dunn's judgment before, Young says, he would have likely hired outside experts in pediatric forensic pathology to undertake a review.

This is one of many reasons that help explain how Smith could go on to err in 19 more cases, 12 of which resulted in criminal convictions. Former chief coroner Jim Young has apologized for "miscarriages of justice" that resulted.

In the Timmins case, the babysitter had been hired in the summer of 1988 to look after the little girl. Because of a publication ban at the inquiry, the babysitter can be identified only as SM and the toddler as Amber.

SM had taken the Red Cross babysitting course, was a good student and lived with her parents close to Amber's home.

On the afternoon of July 28, Amber woke up from a nap babbling. SM got her from her crib and changed her. They then walked toward a flight of five stairs. Amber pulled away from SM and tumbled down the stairs, according to SM.

Amber was flown to the Hospital for Sick Children, where she died two days later.

SM's parents used all their savings to defend their daughter, hiring experts from around the world. Justice Dunn found their evidence more credible.

In his 75-page judgment, Dunn wrote that Smith refused to consider the possibility that Amber had suffered her injuries in a fall and he (Smith) was stuck on the position that shaking had caused her death.

"There is an expression that lawyers use that `justice must not only be done, it must be seen to be done,'" Dunn wrote.

"It would behoove Dr. Smith in making such an important decision as a diagnosis of shaking that would lead to a manslaughter charge, to show he seriously considered possibilities other than shaking," he continued.

Among Dunn's many concerns with Smith's work on this case was his constantly changing definition of the aspects of shaken baby syndrome; his wrong assertion that no autopsy was needed to confirm the diagnosis; and the fact that he was not up on the latest research in the area.

Young, who now works as a special adviser to the federal government on emergency preparedness, told the inquiry that he didn't know of Dunn's decision before because there is no process in place for such judgments to be sent to the chief coroner.

Even so, there were other missed opportunities to find out about Dunn's ruling: It was mentioned in a May 2001 Maclean's magazine article; it was also referred to in a November 1999 edition of the CBC's the fifth estate; and it was contained in a separate November 1999 complaint about Smith, a copy of which had landed on Young's desk. The former coroner told the inquiry he read the article and complaint, but missed the sections referring to Smith. And he said he was away when the CBC show aired.

In the years after Dunn's 1991 decision, Smith's mistakes mounted.

The most egregious so far involves William Mullins-Johnson, who was wrongly convicted in the death of his 4-year-old niece based on evidence from Smith. He was acquitted last month after spending 12 years in prison.

The inquiry has heard there were myriad red flags about Smith's work over the years. As well, there were a number of contributing factors that led to the flawed death investigations.

One of the most surprising revelations has been that Smith had no training in forensic pathology despite hanging out a shingle saying he was a pediatric forensic pathologist. He was educated only in pediatric pathology, which would prepare him to diagnose disease and conduct autopsies in a hospital setting.

The skill set required to do autopsies under a coroner's warrant in criminally suspicious cases or homicides is vastly different.

But that lack of training isn't entirely Smith's fault. Dr. Michael Pollanen, Ontario's chief pathologist, testified that the Royal College of Physicians and Surgeons of Canada has only recently designated forensic pathology as an official sub-specialty. Canada is decades behind other jurisdictions, including the U. S. and Britain, on this front.

The inquiry has heard that there were other reasons Smith continued making mistakes, including:

Lack of oversight during 20 years in the coroner's office.

The "guru" status he had developed in the field.

The severe shortage of pathologists doing this kind of work.

The "think dirty" policy in place in the coroner's office in the mid-'90s – encourage those working on death investigations to consider foul play.

Young had argued that the College of Physicians and Surgeons had no jurisdiction to investigate complaints involving Smith or any other doctor working for it. In 2000, the Health Professions Appeal and Review Board ruled that the college could undertake such investigations.

When Young was asked by commission counsel Mark Sandler about his office failing to see the flags, the former chief coroner said other stakeholders weren't alerting him. "We were not hearing from Crown attorneys in large numbers. ... We were not hearing from police officers. We weren't hearing from the Defence Bar. ..."