TORONTO - His mistakes may have helped jail innocent people, but Dr. Charles Smith must not be made the scapegoat for a deeply flawed system that investigated child deaths in Ontario, lawyers for the disgraced pathologist argued Tuesday as the public inquiry probing his errors drew to a close.
Smith was "vilified" at the inquiry but was merely the product of a system that was "primed for problems," said Niels Ortved, one of Smith's lawyers.
"This was the environment in which Dr. Smith and every other pathologist in Ontario operated," he said.
"Dr. Smith was demonized at this inquiry. For what? For the very things, in my submission, that were standard operating procedure."
Ortved painted Smith as a victim of circumstances, a professional who did his best while working in a system that lacked accountability and oversight.
Smith, who was pilloried at the inquiry for being self-taught and chronically late in delivering his findings, wasn't that different from any other pathologist working in Ontario at the time, Ortved argued.
The pathologist's admitted failings don't stand alone and "should not be allowed to obscure the full scope of the systemic inadequacies," he concluded.
"Dr. Smith admittedly made mistakes for which he's accepted responsibility. But he didn't err, as has been alleged, having regard to what was considered standard and reasonable at the time."
Lawyers for the Office of the Chief Coroner - which oversaw many of Smith's cases - agreed with Ortved that Smith wasn't solely to blame.
"The OCCO has candidly admitted that problems that arose with pediatric forensic pathology in the 1990s were not simply the result of Dr. Smith's personal failings," said Brian Gover.
"We urge upon you that an underfunded and poorly resourced system lay at the heart of those problems."
The Ontario government called the inquiry after a study by the provincial coroner's office found evidence of errors in 20 of 45 autopsies performed over a 10-year period by Smith, who headed Ontario's pediatric forensic pathology unit at Toronto's Hospital for Sick Children. Thirteen of those cases resulted in criminal charges.
Justice Stephen Goudge is expected to deliver his report to the government in the fall, with recommendations aimed at repairing the public's battered confidence in Ontario's pathology system, although he cannot make findings of criminal or civil liability.
But confidence in the justice system may never be restored and other miscarriages of justice could remain buried if the Ontario government refuses to expand its review of child-death cases, said lawyers for several people who Smith helped put in jail.
Smith held the criminal justice system hostage for years by "playing jury" and ignoring evidence, said James Lockyer, who represents a number of people affected by Smith's findings.
While the inquiry is looking at Smith's work from 1992 to 2002, and an internal review of his earlier cases from 1981 to 1991 is ongoing, the province must go further, Lockyer argued.
It must review all cases - not just Smith's - that resulted in convictions, said Lockyer, who slammed the Ministry of the Attorney General for opining that such a wide-ranging review is unnecessary.
"What an unfortunate, regrettable position for the province to have taken, instead of walking up to the plate," he said.
"To take a position like that - there is no systemic evidentiary justification - perhaps they didn't hear Dr. Milroy, perhaps they didn't hear Dr. Butt, perhaps they didn't hear Dr. Crane, perhaps they didn't hear Dr. Pollanen, just to name a few of the witnesses before you who said there was just that."
Lockyer and other groups are also calling for a review of all previous "shaken baby" and fatal child head injury cases which ended in convictions, as recommended by experts at the inquiry.
Other recommendations included setting up an advisory committee through the chief coroner's office to develop a process to select and delist individuals on a roster of pathologists who would be qualified to conduct autopsies in criminally suspicious cases.
The inquiry, which began its public hearings in November, heard from 94 witnesses during 63 days of testimony and received more than 36,000 documents. Goudge is expected to deliver his report Sept. 30.
