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Pathologist Avoids Responsibility

June 1, 2006 permalink

Dr Charles Smith has been responsible for the prosecution of several persons for death of children with testimony that is now under suspicion. Here is our summary of the cases. A court has just excused him from civil liability for his testimony. A legal doctrine intended to encourage witnesses to testify truthfully is now being used to protect a witness from the consequences of untruthfulness.



The Toronto Star

Mother not allowed to sue doctor

Wrongly charged in killing daughter based on initial autopsy results

Pathologist Charles Smith protected by witness immunity rule, court says

Jun. 1, 2006. 05:37 AM

Former Hospital for Sick Children pathologist Dr. Charles Smith cannot be sued by a woman once charged with murdering her daughter because of a centuries-old legal rule protecting witnesses from lawsuits, a court has ruled.

The decision blocks Louise Reynolds from pursuing the $7 million lawsuit she brought against Smith, after a second autopsy revealed that Sharon, 7, died after being attacked by a pit bull in the basement of her family home in Kingston.

Smith, who once headed the hospital's prestigious pediatric forensic pathology department, Ontario's largest facility for conducting autopsies on children, had concluded following the initial autopsy that Sharon's death was the result of more than 80 stab wounds made by a knife or scissors.

Reynolds spent two years in pre-trial custody, plus time in a halfway house, and was forced to put another daughter up for adoption before prosecutors withdrew the charge on Jan. 25, 2001.

Legal experts are concerned that the decision by Ontario's Divisional Court — described by a dissenting judge as the first of its kind in Canadian jurisprudence — could shield pathologists, such as Smith, from being made accountable for their actions in the courts.

Smith's work on 44 cases involving suspicious deaths of children — including the Reynolds case — is currently under review by a panel of independent experts as part of a probe ordered by Ontario Chief Coroner Dr. Barry McLellan to protect the integrity of the coroner's office.

Reynolds alleges in a statement of claim that Smith displayed "a reckless disregard for the truth" and was motivated by "improper purposes," such as "assisting the police in securing (Reynolds') conviction, self-aggrandizement, and to avoid professional embarrassment in having to reverse his prior report." A statement of claim contains allegations that have not been proved in court and Smith denies the allegations in his statement of defence.

Justices John O'Driscoll and John Jennings accepted Smith's argument that he could not be sued because of the witness-immunity rule, which was developed by judges over the centuries to encourage witnesses to testify freely without fear of lawsuits.

O'Driscoll said in his 16-page ruling that, although the witness-immunity rule does not exist to protect wrongdoers, "it will sometimes do so," and that "for the immunity to be effective, witnesses must be protected from all lawsuits, not only unmeritorious ones."

"This protection of witnesses from the risk of suit is seen as more important than righting a wrong in a particular case," he said.

However, in a dissenting opinion, Justice Janet Wilson found that Smith was not protected by the rule because the lawsuit was directed at the initial investigation of the death that he carried out for the coroner's office and not at his ultimate testimony in court.

"Counsel for Dr. Smith argue that a pathologist appointed by the coroner to conduct an autopsy is not conducting an investigation, but is rather conducting an examination in the course of preparing evidence for a possible prosecution," she said. "I do not agree."

Wilson noted that "there is no Canadian jurisprudence considering the scope of witness immunity in circumstances sufficiently similar to this case."

Professor Alan Young, who teaches law at Osgoode Hall Law School and the University of Toronto, said in an interview that witness immunity should be reviewed because "our legal system puts a premium on accountability and there was very little concern over accountability when the witness-immunity rule was developed centuries ago."

Toronto lawyer Cindy Wasser, a director of the Association in Defence of the Wrongly Convicted, said yesterday she hopes Reynolds' case can ultimately proceed to trial.

"Louise Reynolds deserves to have a jury of her peers decide whether Dr. Smith has committed the torts of bad faith and misfeasance," Wasser said in an interview. "And the public has the right to know whether Reynolds' allegations against Smith have been proven."

The Divisional Court decision was a setback for Brenda Waudby of Peterborough and other individuals whose lawsuits against Smith have been put on hold pending final resolution of the witness-immunity issue.

"All we ask for is the opportunity to present our claims against Dr. Smith in a court of law in which he would have a full opportunity to defend his actions," Waudby said in an interview. "That shouldn't be too much too ask."

Waudby had been accused of the 1997 murder of her baby but the charge was withdrawn after six experts disagreed with Smith's conclusions about Waudby's daughter's death.

Reynolds' lawyer, Peter Wardle, said in an interview that she "is in this for the long haul and she will appeal."

Niels Ortved, who represents Smith, declined comment.

The lawsuit can continue against other defendants, including the Kingston Police Services Board.

Source: Toronto Star