The crown attorney who prosecuted a 12-year-old Timmins girl for manslaughter in 1989 has said she would not have pursued the case had she known how weak the evidence was from her expert witness, Dr. Charles Smith.
The disgraced Dr. Smith is a central figure in Goudge Inquiry into the Pediatric Forensic Pathology in Ontario.
The inquiry is being held to review Ontario’s policies and practices in forensic pathology in response to the many incorrect findings by Dr. Smith that led to several criminal court cases where people were falsely accused.
One of them was the 12-year-old Timmins girl (known only as S.M. since she cannot be named). S.M. was wrongly accused by Smith of killing a 16-month old baby girl in the summer of 1990.
Crown Attorney Terri Regimbal was the prosecuting attorney at the trial that began on Oct. 2, 1989. She was the junior crown attorney assigned to the Timmins office back then. Regimbal is now the senior crown attorney for the Temiskaming District.
The inquiry, which is examining numerous cases across Ontario, is learning that the outcome of the Timmins case should have been the red flag case to signify that Dr. Smith was giving inaccurate testimony.
Baby Amber of Timmins died on July 30, 1988 after suffering a head injury. The child had fallen down five stairs while in the care of her babysitter, S.M.
Dr. Smith, who was employed as chief forensic pathologist at Toronto’s Hospital for Sick Children, had studied the case in the late fall of 1988 and told Timmins Police he believed the child died from Shaken Baby Syndrome.
Based on that, Regimbal says senior crown attorney Dave Thomas met with chief coroner Dr. James Young, Dr. Smith and Timmins Police and the decision was made to charge the Timmins babysitter with manslaughter.
Regimbal said she was assigned the case because Crown Attorney Thomas was handling a murder prosecution in Cochrane at the time.
Regimbal told the inquiry this week she was fully confident in the case, based on the reputations of the doctors and the reputation of the Hospital for Sick Children.
“I had great confidence in it. As I said, the Deputy Chief Coroner and -- who I was lead to believe was Canada's leading pediatric pathologist, had flown up to Timmins, taken the time to go through the findings of the doctors with Mr. Thomas. And they were absolutely confident that this was -- the diagnosis was Shaken Baby, and that's what Amber died from. She did not die from the fall down the five stairs onto the padded linoleum floor. And yes, I was very confident,” Regimbal testified.
But as the trial progressed, Regimbal told the inquiry she was dismayed to discover that defence lawyer Gilles Renault had produced a team of experts and reports to show that Baby Amber could not have died from being shaken.
Regimbal said if the defence had shared some of the information with her, she would have sought more advice.
“Even if I had some of those reports prior to proceeding with the trial, I would have sought an independent opinion outside the hospital for Sick Children,” Regimbal told the inquiry.
She admitted that although she had prepared diligently for the case, new information was being presented from medical experts she was not prepared for. It became apparent to the trial, that it was more likely Baby Amber died as the result of a ahead injury from falling down stairs, and not from being shaken.
“Yes, well, you know, of course, as we're sitting here in January of 2008, and we have the benefit of twenty years of hindsight…. Certainly, nowadays I could say, Well if I had known what some of that expert evidence would have produced, I -- I probably wouldn't have even prosecuted that case,” she told the inquiry.
Regimbal was also asked to comment on whether the Timmins Police handled the investigation properly.
“Well, it probably was a case that would have been an unusual type of investigation for them and they wouldn't have had a great deal of experience in investigating homicides involving young persons as suspects,” she said.
“And I think that was evidenced in the fact that despite their knowledge that this was a suspicious death and that they may be involved in a homicide investigation, when they interviewed the babysitter, they did not take a statement in compliance with the Young Offenders Act, which, of course, made them inadmissible,” Regimbal added.
When asked if anything “went right” at the trial, Regimbal said the “Not Guilty verdict” was the correct one.
“Well, as for what went right, the right decision was arrived at, and we see that a lot more clearly now in 2008 than in 1991, but clearly the system worked in that sense,” she testified.
S.M. was acquitted by Ontario Superior Court Judstice James Dunn who severely criticized Dr. Smith and his theories of Shaken Baby Syndrome, saying he failed to provide evidence to back up his accusations.
The Timmins Times has spoken to the family of the 12-year old who was wrongly accused and the father has declined a public interview at this time.
The father, who cannot be identified, has followed the inquiry diligently.
He says he is confident the trial in Timmins has become “the cornerstone” of the inquiry in that it demonstrates how the system can go horribly wrong.
“It was a missed opportunity,” he told The Times.
“This was the first time Dr. Smith had been critiqued in the courts.”
He said if the doctors, the lawyers and police had paid attention to what happened in Timmins, all the future mistakes in forensic pathology involvind Dr. Smith could have been avoided.
