Smith inquiry reveals details of 10 new cases

Discredited pathologist Dr. Charles Smith made questionable findings

Nov 14, 2007 04:30 AM

staff reporter

Justice Stephen Goudge, left, and inquiry lawyer Linda Rothstein.

Extensive details of 10 new cases in which discredited child pathologist Dr. Charles Smith made questionable findings were unveiled at a public inquiry yesterday.

Justice Stephen Goudge, who is heading the Inquiry into Pediatric Forensic Pathology in Ontario, issued a publication ban on the names of some of the victims while others were replaced by pseudonyms.

Lawyers for individuals covered by the ban said the move was necessary to protect their clients from further hardship.

But the case files, some more than 100 pages long, reveal the details of the deaths of the 10 children – most of them infants; one almost 4-years-old.

In all of the cases yesterday, criminal charges were laid against one or both of the parents based on Smith's findings after autopsies on the victims.

The inquiry has chosen to deal with 18 of the 20 cases in which there were found to be problems. The 18 case histories released yesterday – including the 10 previously undisclosed – filled two large binders.

During testimony yesterday, the inquiry heard that senior officials in the province's chief coroner's office decided four years ago that the brakes had to be put on Smith.

"Decision by all present – he can't continue medical-legal post-mortems or committee work," state notes taken by Al O'Marra, then chief legal counsel to the office of the coroner.

He was referring to Smith, who was present at that October 2003 meeting along with then-chief coroner Jim Young, deputy coroner Jim Cairns, and acting chief coroner Barry McLellan.

The committee work referred to in O'Marra's notes were the Pediatric Death Review and Death Under Two committees. Smith sat on both.

O'Marra's notes were tabled yesterday as exhibits.

The province called for the inquiry after it was revealed that problems had been found in 20 child-death investigations in which Smith performed autopsies or rendered opinions. In 12 of those cases, individuals were convicted of crimes; in one, an individual was found not criminally responsible; and in seven, people were suspected or charged with crimes but not convicted.

O'Marra's notes from the high-level meeting indicate that Smith did not want to take responsibility for the problems.

"No insights into problems – deflects all criticism to failings of others," read the notes.

McLellan, who testified yesterday, revealed that there was some disagreement in the chief coroner's office on what to do about Smith. McLellan favoured a hard-line approach, but his boss at the time, Young, disagreed.

"We did not agree. ... Dr. Young was aware of my position. I certainly respected his position as chief coroner," McLellan said.

But when McLellan was promoted to the job of chief coroner in April 2004, he took immediate steps to remove Smith from the position of head of the Ontario Pediatric Forensic Unit, located at the Hospital for Sick Children.

"I met with Dr. Smith and I indicated that I felt he should not be continuing in that role," McLellan said.

The inquiry heard how Young had publicly stated that an internal review was necessary, after murder charges were dropped in the case of Louise Reynolds, who spent two years in jail for the death of her 7-year-old daughter. Smith had concluded the child was stabbed to death but a review by other pathologists determined she was mauled by a pit bull.

Commission counsel Linda Rothstein said evidence will be produced in the coming days showing that despite Young's call for an internal review at that time, the coroner "later determined that a review would not go ahead because of legal advice."

Smith himself had even asked his superiors to intervene after charges were withdrawn in the Reynolds case and in the case of a woman who had been charged with killing her 3-year-old stepson. Other pathologists had determined the boy died after a fall.

In a January 2001 letter to Young, Smith asked to be excused from the performance of medical-legal autopsies and that an external review be done of his work.

Concerns about Smith persisted as the number of questionable cases continued to mount, the inquiry heard.

"I personally had concerns about Dr. Smith's ongoing involvement with committees, with conducting autopsies and with being the director of the unit in the context of ongoing concerns about his work," said McLellan, who also noted that Smith had an ongoing problem with tardiness.

He said that in 2003, Cairns responded to the concerns by removing Smith from the committees that investigate child deaths.

"He was still at this time conducting autopsies on non-homicide and non-criminally suspicious cases and he was still director of the unit," McLellan noted, referring to the Hospital for Sick Children's forensic unit.

Smith's performance was eventually addressed by a forensic services advisory committee, which is expected to be further examined by the inquiry today.


The new cases

1. Baby F

Date: Born and died Nov. 28, 1996.

Case facts: Baby F’s mother, a teenager, told police she had felt sick after coming home from school. After sitting on the toilet for 30 minutes, she saw a great deal of blood. Under hypnosis, she recalled seeing a baby in the toilet covered in blood and water. She put the baby, wrapped in a towel, in a plastic bag in her closet. On July 6, 1998, she pleaded guilty to infanticide and was given a two-month “conditional sentence, to be served at home,” three years’ probation and 150 hours of community service. A psychiatric assessment indicated that Baby F’s mother had been “consistent in denying that she knew about the pregnancy” and was suffering from “acute stress disorder.”

Smith’s finding: The baby girl appeared to be full-term and survived “for a period of time” following delivery. Death was caused by asphyxia, attributed to infanticide.

Outcome: Baby F’s mother was granted a pardon on Oct. 24 last year.

2. Tamara

Born Jan. 18, 1998; died Feb. 8, 1999.

Case facts: Tamara had no contact with her father until September 1998, after which her mother testified he came over three or four times a week and helped look after Tamara and her two sisters. The Children’s Aid Society was notified after Tamara was treated at Sick Kids’ hospital on Jan. 20, 1999, for a broken thigh. Tamara and one of her sisters were left in the care of Tamara’s father the morning of Feb. 8, her mother said. She called several times but he didn’t answer. He told police she was in her playpen with a bottle and he fell asleep. Tamara’s mother testified that when she came home, Tamara was lying on her back with a scrape on her forehead and a bruise on her cheek and not breathing. A radiology report found “multiple fractures in various stages of healing ... highly suspicious for nonaccidental trauma.” The father was charged with second-degree murder.

Smith’s finding: Cause of death was given as “asphyxia associated with multiple traumatic injuries.”

Outcome: Tamara’s father pleaded guilty to manslaughter Aug. 30, 2001; he was sentenced to 15 months time served and 361/2 years prison.

3. Katharina

Date: Born March 20, 1992; found dead Sept. 15, 1995.

Case facts: Katharina’s father, Lawrence Babineau, and mother, Gabriela Chaparro-Najar, married in 1993 when the baby was 11 months old. The family lived in Oshawa until June 1994, when the parents split up and the mother moved with Katharina to her sister’s home in Toronto. A custody battle began with Chaparro-Najar alleging that Babineau had abused the child and Babineau claiming she had threatened to kill Katharina rather than let him have custody. Babineau told police he feared she would flee with the child to her native Colombia. Police forced entry into the apartment. They found Katharina’s body in the bedroom and Chaparro-Najar climbing over the balcony. She was charged with murder.

Smith’s finding: Death was caused by “asphyxia in a pattern of neck or chest compression,” consistent with having been suffocated with a pillow. The exact time of death, he said, was uncertain.

Outcome: On Nov. 3, 1997, Katharina’s mother was found not criminally responsible. She was detained at the Centre for Addiction and Mental Health until April 2001. She received an absolute discharge on Dec. 13, 2001.

4 .Taylor

Date: Born April 16, 1996, in Thunder Bay; found dead July 31, 1996.

Case facts: Taylor’s parents, Lanny and Laura, were charged with second-degree murder, criminal negligence causing death and failure to provide necessities of life. The couple had had an argument, after Taylor had been put to bed, and Laura left the apartment carrying her son from a previous relationship. Lanny followed her and the couple were seen arguing and crying before the three returned home. Lanny reported he fell asleep on the couch and was woken by Laura’s screams. An autopsy revealed several broken ribs and a brain injury. Cause of death was given as acute head injury. There was information that Larry had abused a child he had with another woman.

Smith’s finding: Noting that the original radiologist’s report observed two or three fractures, Smith said a review of evidence indicated a total of 14 fractures and other possible injuries. He said the cause of death was consistent with “blunt trauma,” not shaking.

Outcome: Lanny and Laura were discharged on all counts because “there was no evidence of motive, intent or exclusive opportunity to cause the injury that resulted in Taylor’s death.”

5. Tyrell

Born Feb. 1, 1994; died Jan. 23, 1998.

Case facts: Tyrell’s father, Garth, was in jail for manslaughter and the whereabouts of his mother, Janette, unknown. He lived with Garth’s former partner, Maureen, and her two children. Medical reports said Maureen said Tyrell had been running around, jumped off a couch and fell, hitting his head. He was taken to hospital Jan. 19, 1998, after she couldn’t wake him. He was transferred to the Hospital for Sick Children, where he died. Cause of death was recorded as “herniation of brain stem ..... consistent with a severe shaking episode.” Maureen’s son told police she hit Tyrell “a lot.” Maureen was charged with second-degree murder.

Smith’s finding: Smith reportedly told police that the head injury was caused “by flat object — impact.” He testified that Tyrell did not show signs of “classic shaking” but couldn’t rule out the possibility. Smith noted a contusion or discolouration to the brain that was noted by another examiner, who disagreed with his opinion that “a household fall can result in death only when there is epidural hemorrhaging.”

The charge against Maureen was withdrawn Jan. 22, 2001.

6. Dustin

Born Sept. 9, 1992; died Nov. 18, 1992.

Case facts: Dustin lived in Belleville with his parents Mary and Richard. After an argument,
Mary spent the night at a friend’s home, leaving Dustin with Richard. When she returned, there was another violent quarrel and Richard left, taking Dustin and Mary’s daughter, who was not his biological child. Richard was later seen pushing a baby carriage. Dustin was in it, a witness said, “with foam (coming) out of his nose. He was white and his eyelids were blue.” The witness told police Richard shook Dustin, but not violently. A hospital radiologist reported injuries “strongly suggestive of a shaken baby.” Cause of death was given as respiratory failure and a traumatic brain injury.

Smith’s finding: Smith commented in his report that “In the absence of a credible explanation, this injury must be regarded as non-accidental in nature.” In testimony, he said, “Though I would prefer the explanation that it was a shaking-type injury, I cannot rule out the possibility that, in fact, he was stuck by some blunt object.”
Outcome: On April 21, 1995, Richard pleaded guilty to aggravated assault and was jailed six months.

7. Gaurov

Date: Born Feb. 11, 1992; died March 20, 1992.

Case facts: On March 18, the mother of a 5-week-old boy called 911 and said he had
stopped breathing. According to the father, he had been fed at 12:30 a.m. A half-hour later the father heard the baby cry and picked him up. He took several breaths, gasped, turned blue and went limp. The father tried to resuscitate him. Emergency services and Gaurov’s aunt and uncle arrived. The aunt shook him a couple of times to try to revive him. He was rushed to hospital with no heartbeat and not breathing. He was intubated and his heartbeat restored. After tests, he was transferred to the Hospital for Sick
Children. A CT scan found brain hemorrhaging consistent with shaken baby syndrome. On March 20 baby Gaurov died.

Smith’s finding: Smith listed cause of death as “head injury.” In his autopsy report he stated the baby had acute epidural hemorrhaging of the spinal cord and acute subdural hemorrhaging.

Outcome: Gaurov’s father was charged with second-degree murder on July 1, 1992. On Dec. 3, 1992, he pleaded guilty to criminal negligence causing death and was sentenced to 90 days.

8. Delaney

Date: Born Dec. 20, 1992; died May 23, 1993.

Case facts: Five-month-old Delaney lived with his mother, Olga Policarpo, in Woodstock, Ont. On the day before his death his mother had invited her relatives to her house to pray for help for her 2-year-old niece, who had liver and heart problems. Relatives later said they communicated with the Virgin Mary. Delaney was found dead the next day. Policarpo was arrested and taken to hospital, where doctors assessed her as being in a psychotic state.

Smith’s finding: The cause of death was listed as “asphyxia.” Smith told police the baby’s death was caused by compression or blunt trauma injury and there was evidence of hemorrhaging in the upper chest and lower neck. In a request for a skeletal survey of Delaney, he wrote: “Sudden death of baby while family was involved in cult-like activities.”

Outcome: Policarpo was charged with second-degree murder. While in hospital she told Susan Garton, a nurse at London Psychiatric Hospital, that the Lady of Guadeloupe “made me kill my baby.” She was found not guilty of second-degree murder but was convicted of infanticide.

9. Amber
Date: Born March 13, 1987; died July 30, 1988.

Case facts: Amber was born in Timmins, Ont. Her parents, Francis and Richard, left her in the care of S.M., a 12-year-old babysitter, on July 28, 1988. During the day the toddler fell down five stairs, the sitter said. Paramedics found the baby with no visible injuries and breathing irregularly. On July 30, 1988, she was pronounced brain dead. The cause of death was listed by the coroner as “cerebral edema due to head injury after an accidental fall.” An autopsy was requested due to “a high level of suspicion of foul play.”

Smith’s finding: Smith testified he believed Amber had been shaken to death. He told police there was no way the fall could have killed her. The final autopsy report was signed on Nov. 28, 1988, but Smith only cited a “head injury.”

Outcome: S.M. was charged with manslaughter on Dec. 15, 1988. She was acquitted on July 25, 1991. Smith testified Amber’s injuries “don’t fit those from a fall down stairs.” The judge ruled shaking wasn’t established to his satisfaction. S.M.’s father laid a complaint against Smith at the College of Physicians and Surgeons, which ruled Smith’s approach was acceptable.

10. Kenneth

Born May 18, 1991; died Oct. 12, 1993.

Case facts: At the time of his death, the almost 2-1/2-year-old lived with his mother and stepfather, Rick, in Oshawa, Ont. Kenneth’s mother was still in high school in Scarborough when the baby was born. She came from “an abusive and dysfunctional family” and had problems with alcohol abuse and parenting. Kenneth had been in Children’s Aid Society care four times. He had repeated trips to the hospital for seizures, asthma, bumps, bruises and a broken leg. On Oct. 9, after an afternoon nap, Kenneth’s mother woke to find him twisted in his sheets and blankets and unable to breathe. She got him out and called 911. Paramedics found Kenneth without any vital signs. On Oct. 11 he was termed clinically dead.

Smith’s finding: In his post-mortem report Smith said the cause of death was asphyxia. He testified his findings from the autopsy were consistent with suffocation with a soft object or a plastic bag.

Outcome: Kenneth’s mother was convicted of second-degree murder in October 1995 and sentenced to life. While awaiting trial she gave birth to a son, which the CAS took away.



The known cases

Lianne Thibeault: Smith suggested Thibeault was responsible for the death of her 11-month-old son before another pathologist concluded the cause was undetermined.

Brenda Waudby: Because of Smith’s findings, that Waudby’s 21-month-old baby died of abdominal trauma that occurred hours, even days, before her death, Waudby was wrongfully charged. A babysitter later admitted beating the baby shortly before she died.

Anisa and Marco Trotta: After Smith’s pathology reports on the death of their baby were deemed unreliable, the couple, who already spent time in jail, were granted a new trial by the Supreme Court.

Louise Reynolds: After Smith concluded that her 7-year-old daughter’s injuries were consistent with stab wounds, Reynolds was charged with the death. It was later determined that her daughter was killed by a dog.

William Mullins-Johnson: Smith consulted on the case of Mullins-Johnson’s 4-year-old niece, determining she was strangled. After Mullins-Johnson spent 12 years in jail, Smith’s testimony was reviewed and he was acquitted last month.

Angela Veno and Anthony Kporwodu: Smith was criticized for “inexplicable tardiness” in filing reports after the couple was charged with killing their baby — charges later thrown out. Smith was cited for unwillingness to provide crucial evidence in other cases as well.

Sherry Sherrett: Based on Smith’s findings, Sherrett spent six months in jail for the death of her 4-month-old. Another pathologist later determined the baby died of natural causes.