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Discuss reopening 10 of Smith's cases, deputy chief coroner says

Thursday, November 29

  • By: Kirk Makin
  • Organization: Globe & Mail

Ontario should actively consider reopening 10 cases involving dead children in which their parents were convicted based on evidence from disgraced pathologist Charles Smith, the province's deputy chief coroner said yesterday.

"If I were sitting here as chief coroner today, I would indicate that I would be willing to initiate a meeting with senior officials of the Attorney-General regarding any of the cases where we know there is grave concern about the validity of a conviction," James Cairns told the Goudge commission.

His admission came after considerable prodding from Phil Campbell - a lawyer representing eight of the parents - who attacked Dr. Cairns for not taking pro-active steps to correct the doubtful convictions.

The 10 cases are among a group of 20 where a review by international experts uncovered serious errors made during autopsies by Dr. Smith, precipitating the Goudge inquiry. All have completed their sentences but continue to suffer the stigma of a criminal conviction. The other 10 defendants were acquitted or have already been exonerated.

"I feel that our office should support in the best way it can these cases," Dr. Cairns said. "I would personally have no problem meeting with senior officials of the Attorney-General's ministry to discuss this."

In other evidence yesterday, Mr. Justice Stephen Goudge heard that William Mullins-Johnson - an Ontario man who spent 12 years behind bars for the sex slaying of his four-year-old niece - could have been freed years earlier had Dr. Cairns not waived aside a plea from a concerned lawyer.

(Mr. Mullins-Johnson was exonerated last September by the Ontario Court of Appeal.)

The unusual plea came in an April 3, 2001, letter from Mr. Mullins-Johnson's former lawyer - Michael Lomer - at a time when Dr. Smith's work was coming into disrepute. Mr. Lomer said that, although he no longer represented Mr. Mullins-Johnson, the conviction had long troubled him - particularly since it was based largely on autopsy conclusions from Dr. Smith.

"I am alerting you to this case," Mr. Lomer wrote, offering whatever aid or documents Dr. Cairns might need. "It is my view that this is another case of Dr. Smith's that ought to be looked at in the interests of justice."

Dr. Cairns said yesterday that he conducted a quick search of his file on the Mullins-Johnson case after receiving the letter, but could find no reference to Dr. Smith having worked on the case. He promptly dropped the matter.

"So, you concluded that Mr. Lomer had some spurious false memory about having been involved in the case?" Mr. Campbell asked sharply. "Wouldn't it be logical for a letter from a respected criminal lawyer to be treated with greater concern?"

Mr. Campbell said that a simple phone call to Mr. Lomer, Dr. Smith or others who were connected with the case would have instantly revealed Dr. Smith's role, and started the ball rolling toward Mr. Mullins-Johnson's exoneration much earlier.

Dr. Cairns cast blame on Dr. Smith for not notifying his office that he was acting for the Crown in the case. "Although the letter [from Mr. Lomer] is from a lawyer, it was written as from a private citizen," he added. "We did not pay as much attention to it as we would a formal letter from a lawyer."

Dr. Cairns also testified that:

It took him a half-hour to coax a senior Crown official, Kenneth Campbell, to seriously consider a report from Ontario chief forensic pathologist Michael Pollanen, stating that Dr. Smith had erred in the Mullins-Johnson case. Dr. Cairns said he admonished Mr. Campbell not to belittle Dr. Pollanen and dismiss him as "a young whippersnapper."

The negativity surrounding the Smith scandal has already caused several people he knows to turn away from a field already starved for practitioners.

Late yesterday, Peter Wardle, a lawyer representing five families who are suing Dr. Smith, accused Dr. Cairns of helping build Dr. Smith into a towering figure, then concealing his collapsing credibility.

"I suggest that one of the factors in play throughout this entire period was that you and [chief coroner James] Young were determined that if Dr. Smith was going down, the Office of the Chief Coroner was not going down with him," Mr. Wardle said.

"I do not accept that," Dr. Cairns said.

"If he had feet of clay, that would be highly embarrassing for your office," Mr. Wardle persisted.

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