Will crooked Canadian pathologist be held accountable?

Not likely in Canada. For some people, grievously hurting other people is OK in Canada

A common thread runs through every wrongful conviction case that has convulsed the Canadian justice system: Authority figures are not held accountable. The question of accountability looms large again, as the Goudge commission has just concluded its inquiry into massive failings by Charles Smith and the Ontario Office of the Chief Coroner. In the aftermath of an inquiry that exposed a startling degree of dysfunction in the coroner's system, will Dr. Smith - or anyone else - pay a price?

Mr. Justice Stephen Goudge's hands will be tied when it comes to making findings of criminal or civil liability in his report, scheduled for release in late spring or summer. Testimony and documents filed at the inquiry are off limits as far as criminal charges or professional discipline are concerned. They may be employed as an investigative tool by outside agencies, but not used as evidence.

Still, that does not stop Judge Goudge from pointing fingers. "I think there will be a lot of fact-finding which anybody with half a brain will read as wrongdoing - without Justice Goudge actually saying that it is," said Cindy Wasser, a criminal lawyer who spent years battling for a public inquiry into the Smith affair.

Since many of Dr. Smith's mistakes involved changing or embellishing autopsy reports to conform with what he claims was his changing analysis of a case, they may fall short of providing the necessary proof. In some cases, such as William Mullins-Johnson's conviction for the murder of his niece, Valin, Dr. Smith can also point to defence experts whose concessions bolstered his conclusions.

However, a handful of specific incidents remain that could potentially justify a criminal charge, including one in a case where a Peterborough, Ont., mother was charged with murdering her daughter, Jenna. For years after he conducted Jenna's autopsy, Dr. Smith had possession of a pubic hair that had been found on the victim's body and could have been of significant evidentiary value. In this case, a criminal charge would be justified if it could be shown that Dr. Smith intentionally suppressed the evidence.

"It is very hard to make these people accountable in our legal framework," said James Lockyer, a lawyer for the Association in Defence of the Wrongly Convicted. "So many years have passed in these cases that it makes the criminal burden of proof very hard to meet. "There have been prosecutions in the U.K. and the United States, but in all of our wrongful conviction cases in Canada, there has never been satisfactory accountability," said Mr. Lockyer, who represents eight parents fighting for exoneration in cases where Dr. Smith was a Crown expert. Mr. Lockyer said police and prosecutors whose actions led to wrongful convictions simply do not end up being criminally charged, fired from their jobs or disciplined. Erring judges suffer no censure. Experts who provide flawed testimony walk away, their reputations unmarred, to testify another day.

Indeed, Dr. Smith is a walking illustration of the sort of problem that may arise when an expert is not made accountable in a country as vast as Canada. Even after his errors began to surface in Ontario, Dr. Smith continued to provide expert testimony or consultations as far away as Yukon, and he later relocated to Saskatchewan and was able to briefly resume his career.

University of Toronto law professor Michael Code said the key to finding intentional wrongdoing lies in looking at what an individual believed at the time. Stressing that his comments were general, Prof. Code said: "Anybody who actually believes that what they are doing is proper and appropriate has a complete defence to the offence of obstructing justice."

Ms. Wasser said that intent plays an equally vital role in breach-of-trust prosecutions. "It's a question of how a trial judge defines the facts," she said. "It's also a question of whether he is a 'public officer' and commits a 'fraud.' Fraud is so hard to prove. It is an offence that is really meant for your MP or city health inspector who takes a bribe. "Did [Dr. Smith] fail in his duties of his job? Yes. But was he in that position where public trust fits? I'm not sure."

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