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Brenda Waudby
Photo: Charla
Jones, Toronto Star
Fighting for her daughter
Mother was arrested in the 1997 death of little Jenna
The charge was dropped, but battle to clear her name goes on
HAROLD LEVY, STAFF REPORTER,,
Toronto Star, June 7, 2005
Six years after a murder charge
against her was dropped because experts found she could not have
killed her 21-month-old daughter, Jenna, three things are painfully
clear to Brenda Waudby:
Jenna's killer has not been
caught.
Her name has not been cleared.
The authorities who charged
her refuse to give her an independent report that the Peterborough
woman believes will prove she was wrongly accused.
Police charged Waudby with
killing her daughter in September 1997, based largely on a report
by Toronto pathologist Dr. Charles Smith.
Five other experts disagreed.
They concluded that Jenna's injuries were inflicted on the evening
of her death, when Waudby was out of the home and the toddler
was in the babysitting care of a 14-year-old boy.
Smith no longer performs autopsies
for the coroner's office.
Ontario's chief coroner, Dr.
Barry McLellan, has since ordered an audit of handling of exhibits
at the pathology lab in Toronto's Hospital for Sick Children,
where Smith has his office. Just last week, McLellan told the
Toronto Star that a search of Smith's office had turned
up missing physical evidence that lawyers claim could exonerate
a man who has already served more than 12 years in jail for the
murder of his 4-year-old niece.
Today McLellan will release
results of that audit at a news conference in Toronto.
News of the discovery in Smith's
office revived painful memories for Waudby, 39. Years after charges
against her were dropped, she learned that Smith kept for five
years an adult hair removed from Jenna's body during the autopsy.
She believes that if Smith
had handed the hair to police for DNA testing instead of keeping
it in a drawer, she never would have been charged, and her daughter's
killer would have been brought to justice.
"I am a person who loved
my daughter, who was trying to cope with a tough life, and who
was brought up to respect the police and the public authorities,"
says Waudby.
"If it can happen to me,
it can happen to anyone else."
Waudby has launched formal
complaints and lawsuits against Smith and Peterborough police.
Smith's handling of the Jenna
case and two others would later lead to a reprimand from the
College of Physicians and Surgeons. The complaint against police
was dismissed.
The lawsuits, which are being
defended by Smith and the officers, remain before the courts.
Waudby is also pressing the
authorities to release a medical opinion relating to her daughter's
case that was provided to the Ontario Coroner's office by an
expert on child physical abuse.
In April Waudby was again denied
access to the document on the grounds that there is an ongoing
police investigation.
What Waudby wants, she says,
is to clear her name and see someone charged with Jenna's killing.
She wants it for herself, for
her son Mac, 6, and her daughter Justine, 15. Most of all, she
says, "I owe it to Jenna."
Life was hardly easy for Waudby
in Peterborough, 135 kilometres northeast of Toronto, even before
Jenna's death.
In 1996, while going through
a turbulent separation from Jenna's father, she became addicted
to cocaine. In October she gave up custody of Jenna, then a 1-year-old,
and Justine, then 6, until she got her act together. Waudby soon
seemed to have her life back in control, thanks to a Narcotics
Anonymous group and parenting classes. She had her children back
with her just six weeks later.
"It was rough" Waudby
says. "But it was nothing in comparison to what lay ahead."
On Jan. 22, 1997 Waudby returned
from an evening out with a friend after leaving Jenna and her
older sister with a neighbour's son.
She remembers pulling around
a corner and seeing police and emergency vehicles "all over
the street."
As she arrived at the door
of her duplex, her upstairs neighbour, the babysitter's mother,
was there along with police. There had been an accident, she
was told. Jenna was at the hospital and Brenda should go to her
at once. It would be a further half-hour before authorities told
her Jenna was dead.
"It's every parent's nightmare
to walk into something like this," Waudby says. "Every
parent's worst fear."
The nightmare intensified as
Waudby dealt with doctors and police officers.
"I was treated differently
at the hospital that night," Waudby said. "There was
something in the way they looked at me and questioned me. I felt
that I was being treated as if I had done something wrong."
She still went ahead and gave
a statement to the police, took a lie-detector test and provided
samples of blood and DNA - all without insisting on the advice
or presence of a lawyer.
"I did everything they
asked," Waudby says. "All I wanted was for them to
catch Jenna's killer."
Eight months later, on Sept.
18, 1997, Peterborough police charged her with murder. She became
front page news.
"My name had been plastered
all over the front of the paper," Waudby says. "The
more my name was in the news, the more people thought I was guilty."
Even close family members thought
the worst.
Doug Waudby says he's a fan
of police investigative shows on TV. When his sister was charged
on the basis of forensic evidence, he believed she was guilty.
"You sort of have to believe
science," he says.
Waudby was released on bail
on the day of her arrest and soon found she was shunned wherever
she went in Peterborough, a small city with a population of about
70,000.
"Going to a doctor's office,
I was ashamed to give my name," Waudby says. "I was
embarrassed to say who I was."
Doug Waudby watched his sister
struggle.
"She is almost 10 years
my junior," he says. "Now she almost looks 10 years
older than me."
Even years later, she sometimes
feels under suspicion.
"You take the kids to
the park and families get up and leave, the entire park leaves,
for no apparent reason," she says.
Eight months
after the death, police charged Waudby with murder
"I invited eight kids
to Mac's birthday party on May 1 and only two showed up. There
may been reasons for a couple of them, but not for the others.
It really makes me wonder."
Charles Smith was head of the
prestigious Forensic Pathology Unit at the Hospital for Sick
Children at the time of Jenna's death, and considered the top
expert in the province on determining the cause of deaths of
children.
He could not be reached for
comment for this story.
Smith found Jenna had died
from blunt trauma to her abdomen anywhere between 24 and 48 hours
before her death. His opinion, filed at Waudby's preliminary
hearing, became the basis for Waudby's prosecution because it
placed her at home alone with her daughter when the injuries
were inflicted.
His opinion made no mention
of indications that Jenna may have been sexually assaulted.
According to evidence at the
preliminary hearing and other court documents, the emergency
room physician and an admitting nurse both made notes at the
time of damage to the toddler's rectum. A firefighter and a police
constable both mentioned possible sexual abuse in their notes.
Smith's report also omitted
mention of the "curly hair" found near Jenna's genitals.
Peterborough police, who claim
they were not told of the strand, confirmed that they obtained
the hair about five years later when an officer reviewing the
case interviewed the pathologist - and Smith handed him an envelope
containing the hair.
Police refuse to say whether
it matches the DNA of anyone involved in the case.
"If the police had been
given the hair at the outset so that it could be tested for DNA,
I doubt that I would have been charged with murdering my daughter,"
Waudby says.
But she doubts whether the
hair is of much value as evidence now because it was not carefully
tracked over the years.
Waudby listed Smith's handling
of the hair in her complaint to the College of Physicians and
Surgeons. She also alleged that Smith failed to perform a standard
rape test on Jenna's body.
The College reprimanded Smith
in 2002 over "deficiencies in his approach" to the
Jenna case and two others.
Smith discussed his handling
of the hair in a letter to the College in 2001. "The police,
who are responsible for the submission of evidence in a homicide
investigation, chose not to submit this material for analysis,"
Smith wrote. "It remained under seal in my care. I have
asked the police investigators to reconsider their decision...."
Since the reprimand, Dr. Smith's
work has come under more scrutiny.
In April the chief coroner
ordered a review of how the Sick Kids lab has handled exhibits
from major cases since 1991. That followed a Toronto Star
report that Smith misplaced tissue samples that lawyers for
William Mullins-Johnson were seeking so they could arrange for
an independent evaluation of the evidence from his trial.
The Sault Ste. Marie man, then
24, was convicted of murder in 1994 after a jury trial in which
scientific evidence played a major role in determining the time
of death, the cause of death and whether the victim had been
sexually assaulted.
Prosecutor Brian Gilkinson
withdrew the murder charge against Waudby on June 15, 1999, citing
"certain medical evidence that has shifted dramatically."
That evidence consisted of six medical experts - including one
appointed by the Crown - who rejected Smith's opinion.
They concluded that Jenna's
injuries had been sustained on the evening of her death, when
she had been left with the teenage neighbour.
At Waudby's preliminary hearing,
the babysitter acknowledged that he took Jenna to his apartment
upstairs the night she died. The court also heard that the teen
had an anger management problem. In court documents he admitted
that he hit people and did unpredictable things when angry.
Waudby alleged in a complaint
filed with the Peterborough police force in July 2002 that officers
never fully investigated the teen, who is now in his early 20s.
Deputy chief Kenneth Jackman
dismissed the complaint by letter two weeks later, saying it
was filed too late.
Waudby followed up her complaints
in late 2002 with an $8.5 million lawsuit against Smith, the
lead investigator and the Peterborough police service.
In her statement of claim Waudby
accused Smith of "withholding evidence he recognized did
not fit the theory advanced by the police."
A statement of claim contains
allegations which have not been proven in court.
Smith replied in his statement of defence that he pursued
his duties as a coroner "in a careful, competent, diligent
manner, and in good faith.
"The post-mortem examination
performed by Dr. Smith was thorough, according to standards and
done in good faith," the document says. "Appropriate
sampling was taken, and follow up investigations conducted. Likewise,
where appropriate, consultations from other experts were obtained."
The lead investigator and the
Peterborough police services board say in their statement of
defence that they "had sufficient cause to suspect, interrogate
and surveill (sic) the Plaintiff and ultimately had reasonable
and probable grounds to arrest, charge and detain her with respect
to the death of her daughter."
The lawsuit is still before
the courts.
Eight years after Jenna's death,
Waudby says she has lost hope that the force will make an arrest
- because of the passage of time and because "they have
already bungled it once."
She rests her hopes for clearing
her reputation on an independent medical opinion on Jenna's death
provided to the chief coroner's office by Dr. Kenneth Feldman,
a Seattle-based expert on child physical abuse.
The Feldman report was commissioned
by then-deputy chief coroner Dr. Barry McLellan. Now chief coroner,
McLellan told the Toronto Star his office provided Feldman
with Smith's report and other materials.
A spokesperson for the Children's
Hospital in Seattle said that Dr. Feldman could not discuss his
report due to confidentiality provisions.
Waudby asked McLellan for a
copy of Feldman's report when she learned about it in 2002. She
renewed her request recently. But McLellan says a decision to
release it is up to Gilkinson and the Peterborough police.
Gilkinson says there is nothing
he can do because there is no prosecution before the courts.
Deputy-chief Jackman has declined
to release it.
Jackman says that, while he
appreciates the investigation has "dragged into seven or
eight years," he cannot release the opinion to Waudby because
"the fact remains that this thing is an active investigation."
Jackman says there are no officers
working full-time on the case, but would not provide details
of the investigation.
"This kind of investigation
takes time," he says. "We are not going to put a time
limit on it."
Time is exactly what troubles
Waudby.
"It's eight years later
and still no arrest? What if there is never an arrest?"
she says angrily. "That report is going to remain buried
forever, and that dark cloud will always be hanging over me and
my family."
Doug Waudby says that his sister
cannot be exonerated by the authorities soon enough. "All
this is just draining the life out of her," he says.
"They owe Brenda closure."
Review of Ontario doctor's
autopsy work ordered
By ALLISON DUNFIELD, Globe
and Mail, June 7, 2005
Ontario's Chief Coroner has
ordered a formal review into the autopsy work of Dr.
Charles Smith at Toronto's Hospital for Sick Children and the
way some high-profile homicide and suspicous death cases were
handled.
Dr. Barry McClellan made the
announcement as he was releasing the results of an audit investigating
the results of autopsies at the hospital beginning in 1991.
It was launched after Dr. Smith allegedly misplaced evidence
that lawyers said could exonerate a man convicted of killing
his four-year-old niece in 1994.
The missing evidence was found
in Dr. Smith's office last week.
- Dr. McClellan said the review
will look into 40 cases since 1991.
- Dr. Smith has conducted a
total of 1,000 autopsies for the provincial Coroner's office.
- He said his office has become
aware of concerns surrounding cases on which Dr. Smith was either
a primary or consulting pathologist.
- "As a result of these
concerns, and in order to maintain the public confidence that
is very important to this office, I have decided to arrange for
a formal review of the pathology materials arising from all of
the criminally suspicious or homicide cases where Dr. Smith conducted
an autopsy or where we're aware he provided an opinion going
back to 1991.
- "This review will focus
on whether the conclusions reached by Dr. Smith in his autopsy
or consultation reports can be supported by the information and
materials available, including the tissues and slides identified
as a result of this tissue audit."
Dr. McClellan is considering involving a board of pathologists
to conduct the review of the autopsies.
Dr. Smith will no longer be
conducting autopsies with the Hospital for Sick Children, the
Chief Coroner noted, nor has he asked to do so.
However, he is still employed
by the institution.
"And the current practice
will be for materials to be stored once they've been reviewed
by the pathologist in standard storage areas of the hospital
with appropriate documentation when the materials are being received,
when they're being returned and if they're moving in the hospital.
So, our expectation would be that materials were not stored in
a pathologist's office for an extended period of time."
He said the main aim of the
probe is to restore public confidence, which he said has been
shaken by the allegations.
Coroner orders review
of Toronto pathologist
CTV.ca News Staff
Ontario's chief coroner has
ordered a review of a Toronto pathologist accused of mishandling
cases of autopsies involving suspicious deaths of children.
Dr. Barry McLellan said the
review is being launched because there have been concerns about
the cases in which Dr. Charles Smith was either a leading
or a consulting pathologist.
"The major impetus here
is that of public confidence and in responding to the concerns
that we're well aware of arising from some high profile cases,''
McLellan told reporters.
The review will involve criminal
and murder cases dating back to 1991. In total, 40 of the cases
Smith was involved in will be investigated.
McLellan said the review is
the next step in investigating Smith, whose work at the Hospital
for Sick Children prompted an audit back in March.
The audit was launched after
lawyers for a man convicted of killing his four-year-old niece
in 1994 said forensic evidence could not be found.
That missing evidence was found
in Smith's office last week, McLellan said.
The lawyers claim that evidence
could exonerate their client, who was convicted largely based
on the scientific evidence presented with regard to time of death,
the cause of death and whether the victim had been sexually assaulted.
McLellan said the current practice
at the hospital is for materials to be stored in appropriate
storage areas in the hospital, with the appropriate paperwork.
"Our expectation would
be that materials were not be stored in a pathologists office
for an extended period of time."
The audit was conducted on
a total of 70 samples, and McLellan said the audit was able to
track relevant tissue samples in almost every case. He called
that finding reassuring.
Smith has been involved in
more than 1,000 autopsies for the provincial Office of the Chief
Coroner.
He has not conducted autopsies for Coroner's Office since Dec.
2003, and he has not conducted autopsies on criminally suspicious
or murder cases since 2001, with the exception of one case in
2002.
Smith is still employed at
Sick Kids Hospital.
He has attracted criticism from judges and medical authorities
for tardy reporting and unwarranted conclusions.
His work on three high-profile
cases led to a reprimand in 2002 from the College of Physicians
and Surgeons, and a lawsuit related to at least one of those
cases is still before the courts.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
