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Call for Baby Death Review

January 5, 2008 permalink

Errors turned up by the Goudge Inquiry have led Ontario's opposition parties to call for a widespread review of child death cases going back fifteen years. The cases involved are those in parental care in which the parents have been falsely accused of homicide, or left under a cloud of suspicion. So far there is no call for investigation into deaths in CAS custody. A report of the Ontario Chief Coroner (pdf, page 22) for the year 2006 dealt with 83 deaths of children having open CAS files, 19 of them in CAS custody. It did not claim the numbers were complete. Our statistical analysis suggests there are between 28 and 50 deaths in foster care annually, though only about one gets into the press.



Massive review of baby deaths sought

More than 200 cases could be revisited amid fears of errors by other pathologists

Provincial opposition parties and legal groups are calling for a review of roughly 200 investigations into child deaths.

Indications of potential problems with these cases have only come to light at the Inquiry into Pediatric Forensic Pathology in Ontario, which resumes public hearings Monday after the Christmas break.

The inquiry is looking at mistakes made by pathologist Dr. Charles Smith in 20 child deaths in which people were criminally convicted or charged.

But there are concerns that other pathologists also made errors, resulting in wrongful convictions.

"If we're in the process of opening old wounds and trying to produce, by doing that, some healing, we should open them all and look at all these cases," Conservative Leader John Tory said yesterday.

"As a result of the current inquiry, the spectre of wrongful convictions has grown bigger and darker and it falls upon the government to initiate a thorough review," said NDP justice critic Peter Kormos.

Louis Sokolov is a director with the Association in Defence of the Wrongly Convicted and has been serving as counsel to the organization at the inquiry.

Sokolov said it has become increasingly evident since hearings started in mid-November that problems with the practice of pathology in the province run deeper than originally suspected.

"What we've heard from the inquiry is that the problems appear to go far beyond the 20-odd Dr. Smith cases that are the subject of the inquiry. They go beyond that time frame and go beyond Dr. Smith himself," he said.

All the cases in question involve about 200 criminally suspicious deaths and homicides of children. They include 50 deaths that occurred between 1991 and 2001 and more than 50 head injury deaths deemed homicides between 1986 and 2000. Also included are 142 deaths caused by "shaken baby syndrome" between 1986 and 2006.

The inquiry has heard that there was little oversight of pathologists going back to 1981. While Smith's errors were the most egregious, others made mistakes, too. For example, in the highly publicized wrongful conviction of William Mullins Johnson, it was a Sault Ste. Marie pathologist, with others in attendance, who first determined that his niece had been the victim of chronic abuse and had likely been strangled or smothered. Smith was only the consulting pathologist in the case, which resulted in Mullins Johnson spending 12 years in jail.

"What we do know is that for a long period of time, there has been inadequate supervision of pathologists in the province of Ontario. ... We are gravely concerned that there are other people who have been wrongfully convicted and wrongfully prosecuted as a result of flawed pathology in the province of Ontario and all of those cases need to be examined," Sokolov said.

"The pathologists assigned to the tasks of doing autopsies in these cases were very often not up to scratch," charged James Lockyer, counsel at the inquiry for individuals charged or convicted of child deaths in cases on which Smith had worked. "It's hard to isolate the ones who were and the ones who weren't. I think the best way of dealing with it and clearing the air once and for all and uncovering any possible wrongful convictions that are out there, is to just look at the whole lot."

Lockyer believes the "think dirty" edict issued by the chief coroner's office in 1995 was likely behind some of the mistakes. It directed pathologists and others working on child-death investigations to consider foul play.

Among the cases Sokolov wants reviewed are:

50 child deaths that occurred between 1991 and 2001, which outgoing deputy chief coroner Dr. Jim Cairns cited at the inquiry. Pathologists other than Smith carried out the autopsies.

More than 50 deaths involving infant or childhood head injuries, which Ontario's chief forensic pathologist Dr. Michael Pollanen, raised at the inquiry. He said he found these by searching the coroner's information database. They occurred between 1986 and 2000 and while they were "coded" as homicides, it's uncertain how many of these cases resulted in convictions.

142 infant deaths attributed to "shaken baby syndrome" between 1986 and 2006. Pollanen told the inquiry that a review of these deaths might be advisable. There has been an evolution in the debate about the syndrome over the last two decades and such deaths might be diagnosed differently today.

Sokolov also wants the review to look at criminally suspicious deaths and homicides investigated by the Ottawa pathology unit. The inquiry has heard that there were major problems at that pathology unit, dating back years. These death investigations involved adults as well as children.

"I don't think that we can have faith that adult forensic pathology is much more trustworthy than infant pathology," he said.

Sokolov said there is also a need to review Smith's older cases, going back to 1981 when the pathologist started doing coroner's autopsies. These are not being probed at the inquiry, which is focusing only on his work from 1991 to 2001. But the inquiry has heard that the coroner's office is combing through Smith's old cases to see if there are any red flags. Pollanen has indicated that they'll likely find some.

"There is a reasonable basis to believe that problems might exist with Dr. Smith's cases prior to 1991," he wrote in a Jan. 8, 2007 memo to the province's then-chief coroner Barry McLellan.

Sokolov said it's not necessary to hold another inquiry into the cases in question. A review could consist of looking for old cases where individuals were charged or convicted of crimes based on the findings of pathologists.

"The first step is to find out if there are more William Mullins Johnsons out there who are sitting and rotting in jail for things that they didn't do," he said.

Then it's a matter of getting reputable pathologists to take a look at the cases "and pinpoint those that are problematic," he added.

Sokolov acknowledged it will be a major undertaking, but argued that it's necessary.

But Lockyer argued that it doesn't have to be a massive undertaking. He said he would be satisfied with looking back at 15 years' worth of prosecutions involving the deaths of children under 2. He said he hopes Justice Stephen Goudge, who is overseeing the inquiry, will make such a recommendation.

However, Tory said the mandate of the current inquiry should be expanded to look at the additional cases.

Kormos said that if there is an indication more mistakes have been made by pathologists it's imperative to investigate.

Sheamus Murphy, spokesperson for Attorney General Chris Bentley, said it wouldn't be appropriate for his minister to comment until after the inquiry is completed.

Source: Toronto Star