|
 January
25, 2005: The
Federal government released the first
national examination of the reasons for so many wrongful convictions
in Canada. This
should be required reading for every prosecutor, cop and criminal
defence lawyer in the country. News reports
Dr.
Charles Smith | Dr. Joel Yelland | Dr.
Roy Meadow | Angela Cannings
| Trupti Patel | Scotland
cases | Sally Clark |
Anthony Kporwodu and Angela
Veno | Still to be exonerated: Darren
Koehn | Brenda Waudby
| William Mullins-Johnson
|
Louise Reynolds of Kingston, Ont.
Mother not allowed to
sue doctor
Wrongly charged in killing daughter based on initial autopsy
results
Pathologist Charles
Smith protected by witness immunity rule, court says
HAROLD LEVY, Toronto Star, June 1, 2006
Former Hospital for Sick Children
pathologist Dr. Charles Smith cannot be sued by a woman once
charged with murdering her daughter because of a centuries-old
legal rule protecting witnesses from lawsuits, a court has ruled.
The decision blocks Louise
Reynolds from pursuing the $7 million lawsuit she brought against
Smith, after a second autopsy revealed that Sharon, 7, died after
being attacked by a pit bull in the basement of her family home
in Kingston.
Smith, who once headed the
hospital's prestigious pediatric forensic pathology department,
Ontario's largest facility for conducting autopsies on children,
had concluded following the initial autopsy that Sharon's death
was the result of more than 80 stab wounds made by a knife or
scissors.
Reynolds spent two years in
pre-trial custody, plus time in a halfway house, and was forced
to put another daughter up for adoption before prosecutors withdrew
the charge on Jan. 25, 2001.
Legal experts are concerned
that the decision by Ontario's Divisional Court - described by
a dissenting judge as the first of its kind in Canadian jurisprudence
- could shield pathologists, such as Smith, from being made accountable
for their actions in the courts.
Smith's work on 44 cases involving
suspicious deaths of children - including the Reynolds case -
is currently under review by a panel of independent experts as
part of a probe ordered by Ontario Chief Coroner Dr. Barry McLellan
to protect the integrity of the coroner's office.
Reynolds alleges in a statement
of claim that Smith displayed "a reckless disregard for
the truth" and was motivated by "improper purposes,"
such as "assisting the police in securing (Reynolds') conviction,
self-aggrandizement, and to avoid professional embarrassment
in having to reverse his prior report." A statement of claim
contains allegations that have not been proved in court and Smith
denies the allegations in his statement of defence.
Justices John O'Driscoll and
John Jennings accepted Smith's argument that he could not be
sued because of the witness-immunity rule, which was developed
by judges over the centuries to encourage witnesses to testify
freely without fear of lawsuits.
O'Driscoll said in his 16-page
ruling that, although the witness-immunity rule does not exist
to protect wrongdoers, "it will sometimes do so," and
that "for the immunity to be effective, witnesses must be
protected from all lawsuits, not only unmeritorious ones."
"This protection of witnesses
from the risk of suit is seen as more important than righting
a wrong in a particular case," he said.
However, in a dissenting opinion,
Justice Janet Wilson found that Smith was not protected by the
rule because the lawsuit was directed at the initial investigation
of the death that he carried out for the coroner's office and
not at his ultimate testimony in court.
"Counsel for Dr. Smith
argue that a pathologist appointed by the coroner to conduct
an autopsy is not conducting an investigation, but is rather
conducting an examination in the course of preparing evidence
for a possible prosecution," she said. "I do not agree."
Wilson noted that "there
is no Canadian jurisprudence considering the scope of witness
immunity in circumstances sufficiently similar to this case."
Professor Alan Young, who teaches
law at Osgoode Hall Law School and the University of Toronto,
said in an interview that witness immunity should be reviewed
because "our legal system puts a premium on accountability
and there was very little concern over accountability when the
witness-immunity rule was developed centuries ago."
Toronto lawyer Cindy Wasser,
a director of the Association in Defence of the Wrongly Convicted,
said yesterday she hopes Reynolds' case can ultimately proceed
to trial.
"Louise Reynolds deserves
to have a jury of her peers decide whether Dr. Smith has committed
the torts of bad faith and misfeasance," Wasser said in
an interview. "And the public has the right to know whether
Reynolds' allegations against Smith have been proven."
The Divisional Court decision
was a setback for Brenda Waudby of Peterborough and other individuals
whose lawsuits against Smith have been put on hold pending final
resolution of the witness-immunity issue.
"All we ask for is the
opportunity to present our claims against Dr. Smith in a court
of law in which he would have a full opportunity to defend his
actions," Waudby said in an interview. "That shouldn't
be too much too ask."
Waudby had been accused of
the 1997 murder of her baby but the charge was withdrawn after
six experts disagreed with Smith's conclusions about Waudby's
daughter's death.
Reynolds' lawyer, Peter Wardle,
said in an interview that she "is in this for the long haul
and she will appeal."
Niels Ortved, who represents
Smith, declined comment.
The lawsuit can continue against
other defendants, including the Kingston Police Services Board.
- Police sued by woman
who `lost all': Jailed after being
 charged
in her  daughter's
death
- original newsreport of her exoneration, Jan. 26
-
- Tracey Tyler LEGAL AFFAIRS
REPORTER, Toronto Star, Feb. 9, 2001.
A woman who endured ``a profound
stripping away of her life'' after being charged with murdering
her daughter has launched a $7 million lawsuit in the wake of
expert opinion that a dog was the likely killer.
Prosecutors withdrew a second-degree
murder charge against Louise Reynolds two weeks ago, citing an
opinion from the top North American bone mark expert that 7-year-old
Sharon Reynolds' injuries were caused by dog bites.
The child's body was found
in the basement of her Kingston home June 12, 1997, after she
was reported missing.
Her mother maintained that
a neighbourhood pit bull named Hat Trick, which was in the basement,
was responsible.
Louise Reynolds told reporters
yesterday her life is in ruins and the past three years have
been a nightmare.
 ``Sitting
in a jail cell and every day being called a baby killer and being
spit at, no one will ever, ever know what it feels like to live
through this unless they've gone through it,'' she said, sobbing.
Reynolds spent time in the
Quinte Detention Centre in Napanee and a Barrie halfway house
before being set free last month.
``In Louise's case, it is a
total loss,'' her lawyer, David Corbett, said this week.
``She lost all of her family,
all of her possessions.
``She has no money, no income,
and she was separated from the community where she spent her
entire life.
``It's hard to imagine a more
profound stripping away of her life.''
A statement of claim was filed
yesterday in Ontario Superior Court.
 It
names Kingston police and forensic medical experts as defendants
and claims damages for malicious prosecution, false imprisonment,
gross negligence and breaches of Reynolds' constitutional rights
to liberty and security of the person.
Kingston police `welcome
review' of their investigation
The case raises bigger questions
about whether society should have a way of compensating the Louise
Reynolds of the world, Corbett said.
It doesn't seem fair that in
a civil case, a plaintiff who loses must pay the other side's
costs, but in a criminal case, the prosecution faces no penalty
for wrongly wielding its resources against someone like Reynolds,
he suggested.
 In
a prepared statement, Kingston police Chief Bill Closs welcomed
scrutiny of the force's work.
``Kingston police believe their
investigators conducted a fair and thorough investigation and
took appropriate action, and we welcome a review of that investigation,
even if it happens to be through the launching of a civil lawsuit,''
Closs said. With
files from Canadian Press
DEAD
WRONG(we moved this story)
BY JANE O'HARA
How the faulty findings
of an eminent pathologist led to erroneous murder charges and
ruined lives
|
