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The Current Transcript for January 12, 2017

Host: Anna Maria Tremonti

STORIES FROM THIS EPISODE

Listen to the full episode

Prologue

[Music: Theme]

SOUNDCLIP

They informed me at that point that they didn't believe my story and that a doctor in Toronto had reviewed Nicholas’ autopsy results and believed that I was responsible for his death.

ANNA MARIA TREMONTI: The doctor who so stridently believed she killed her 11 month old was Charles Smith. Working as a forensic pathologist, he had the unquestioning support of the police, the Ontario coroner's office and children's aid, but he was wrong. And Lianne Thibeault—even while grieving the death of her boy—would spend years fighting to clear her name and then fighting authorities who later wanted to apprehend her second child. Hers is just one story of lives torn asunder by the findings of a man who later found to be incompetent and unqualified. A judicial inquiry in Ontario in 2008 would eventually identify 20 cases where findings by Charles Smith were mistaken and led to several wrongful convictions.

SOUNDCLIP

You need help to navigate the justice system. You need people in your corner to figure out how to do it and so many of these people were living on the fringes of society.

AMT: Author and Current producer John Chipman has followed up on the lives of some of those who were sideswiped, accused and even convicted of murder as they mourned the deaths of their young children. We'll hear what he found in an hour. And before that, Lianne Thibeault tells her story. But we're starting with inquiries over ethics.

SOUNDCLIP

Canada has built a close relationship with His Highness the Aga Khan based on diversity, understanding and respect. I am honoured to call him a dear friend and a mentor.

AMT: Vacation with a friend or a breach of ethics and a conflict of interest? I'm Anna Maria Tremonti. This is The Current.

Back To Top »

PM's trip to Aga Khan's private island 'warrants an investigation'

Guests: David Akin, Ian Greene

SOUNDCLIP

VOICE 1: Prime minister. David Akin, National Post. I'd just like to ask you about your recent holiday, sir. The Aga Khan, of course, is a good friend of your family's, but he's also the chairman and the director of an organization that's a registered lobbyist that competes for federal foreign aid funding. Andrew Scheer, for one, has filed a complaint with the conflict of interest commissioner. Could you address that issue?

VOICE 2: The Aga Khan has been a long-time family friend. He was a pallbearer at my father's funeral. He has known me since I was a toddler and this was our family vacation. As for the conflict of interest commissioner and ethics commissioner, I look forward to answering any questions she may have.

AMT: Well, according to some opposition members of parliament, the prime minister's winter getaway this year was more than just plain fun in the sun. During the holidays, Justin Trudeau and his family were guests at a private Bahamian island owned by the multimillionaire philanthropist and spiritual leader, the Aga Khan. The Aga Khan Foundation, a non-profit which supports development projects in Africa and Asia, has received over $300 million from the Canadian government over the last 12 years. And as you just heard, Conservative leadership candidate and opposition MP Andrew Scheer has asked the conflict of interest and ethics commissioner to look into the trip and to determine whether the prime minister violated the conflict of interest act by accepting a private gift from the Aga Khan. For more on his concerns, I'm joined by Andrew Scheer. He's in Quebec City. Hello.

ANDREW SCHEER: Hi there. How are you?

AMT: Well, I'm curious to know: why did you file that complaint with the conflict of interest and ethics commissioner?

ANDREW SCHEER: Well, I think it's quite simple. Despite the personal relationship between the Aga Khan and the Trudeau family, we do have the problem of the fact that the Aga Khan’s foundation receives a significant amount of tax dollars every year and the prime minister did accept a gift in the form of a vacation on a private island in the Bahamas. And now there's some questions about how he got there, you know a flight from one island to another and there are some very clear rules in the ethics guidelines that this type of thing is not allowed. The fact of a personal relationship may be a mitigating factor here, but I guess my main point would be this is why the ethics commissioner often says you know run this by me before you do something. And I think the prime minister missed an opportunity here to pre-clear the trip. The fact that the foundation receives a significant amount of tax dollars, I believe warrants an investigation.

AMT: Are you satisfied with anything the prime minister has said on this so far?

ANDREW SCHEER: Well, you know it's kind of like when you put everything together. So we have the fact that there are no details in advance of the trip were released. You know the media, the public were kept in the dark about where he was. When he got back, he was still you know not very forthright with details. And then it comes out that okay, he took a private trip and then a couple of days later, it comes out there were other people on that trip with him, including a Liberal MP and the Liberal Party president. So it starts to look like there are efforts made to keep details like this secret and that also casts a pall over the nature of the trip.

AMT: Now the Liberals did set their own rules concerning ethics and conflict of interest at the beginning of their mandate. Is this the optics or is there more?

ANDREW SCHEER: Well, that's what I'd like the ethics commissioner to determine but I would certainly agree that the optics are not good. And as you mentioned, as you rightly point out, the prime minister tried to raise the bar even beyond the letter of the law that's in the conflict of interest act and instructed his cabinet to avoid even the appearance of a conflict of interest, that it was the spirit of the law that was going to be the new standard. I think by that measure, he certainly falls short.

AMT: Conflict of interest laws do allow gifts from friends and relatives.

ANDREW SCHEER: Yes. I don't know if conflict of interest act envisages you know a luxury vacation from a private island you know I might get a bottle of wine at Christmas from some family and friends, but I certainly don't receive gifts from people of that value and certainly not from people whose foundation receives a significant amount of tax dollars and I think that's the issue here.

AMT: So you wanted him to be more transparent. Do you have any concerns about how the funding is granted?

ANDREW SCHEER: I at this point don't have concerns that the Aga Khan Foundation or with the decisions related to how much funding they get. But I think what we are dealing with personal interactions with foundation or people involved in foundations that receive that level of tax dollars that the prime minister should have erred on the side of caution. And it's coming on the heels of several other incidents. You know we have the prime minister having a private dinner with people who donated to the Trudeau Foundation. We have the cash for access fundraising that his ministers were involved with. So it's not happening in isolation. It's coming on the heels of several other types of incidents like this. I think that Liberals are going down a path we’ve seen them go down before.

AMT: And so what you're asking for is an ethics commissioner to actually rule on this or you would have liked him to do this ahead of time and maybe not even go.

ANDREW SCHEER: Well, you know the problem I have with the prime minister's statement is that he is determining that the relationship between the Aga Khan justifies the acceptance of the gift and I don't think that individual public office holders make that determination on their own. That's why we have an ethics commissioner and that's why she invites members of parliament and public office holders to run things by her ahead of time.

AMT: Okay. Well, Andrew Scheer. Thank you for your thoughts today.

ANDREW SCHEER: You bet. Thank you. Good to chat.

AMT: Andrew Scheer is a Conservative MP for Regina-Qu’Appelle. He's also a leadership candidate for the Conservative Party of Canada. We reached him in Quebec City today. We did request an interview with the prime minister or any MP from the Liberal Party of Canada on this issue. We did not hear back. We also place a request with Mary Dawson, the federal conflict of interest and ethics commissioner. We received a statement saying that she has started a preliminary review but “cannot discuss the matter further.” For more on this developing controversy, I'm joined by the reporter who first broke this story. David Akin is a senior political reporter at the National Post. He's in Ottawa. Hello.

DAVID AKIN: Good morning, Anna Maria. How are you?

AMT: I'm curious to know what you know. So first of all, when did you first learn about the PM's trip to the Aga Khan's island?

DAVID AKIN: Well, we first learned about it, I guess, let's see… I guess about a week ago and the genesis of this story started—and this is one of the issues, is transparency about the trip itself—started before the holiday break. And I, as many, I think parliamentary press gallery reporters would do before the break with any prime minister, just sent a message to the office of the PMO and said hey, what's Justin Trudeau’s family doing for Christmas? Answer came back: the prime minister will spend Christmas at Harrington Lake. That's the official residence in the Gatineau Hills north of Ottawa. That's fine, a lot of PMs do that. And then it said and he will spend New Year's out of the country. I thought well, that's a little odd but okay. Nice. Then when New Year's showed up—of course this is our 150th anniversary year—Governor General David Johnson hosted a party on Parliament Hill for which taxpayers paid two and a half million dollars and there was no prime minister. And so early that day, I said where is he? Why is he not here? And after some pressing and pushing of the PMO, they said he's in the Bahamas. And I’m going well, that's kind of weird. And then conversation occurred in which our source said doesn't everybody know? He's hanging out with the Aga Khan. And that became the process by which we tried to determine who was there. We first heard that it was not just the prime minister but it was also Liberal MP Seamus O'Regan and his husband, as well as the Liberal Party president Anna Gainey and her husband. We get into issues around a simple question: where is the prime minister? Many Canadians think we at least ought to know that. Then we get into some issues around conflict of interest because of the current position that Justin Trudeau holds and the Aga Khan holds.

AMT: And he has argued, well, I paid for my flight. But the bigger question is you stayed on his island. You were a guest on his island.

DAVID AKIN: Right. And as Andrew Scheer was outlining, there's issues on conflict of interest. So the conflict of interest commissioner is going to have to determine he's a friend. It's okay.

AMT: At the same time, David, there are lobbying rules because the Aga Khan Foundation is a charitable organization and has lobby status.

DAVID AKIN: Right. So the onus of the lobbying rules put the onus on the lobbyist. So the Aga Khan Foundation would have to make a report about this contact with Justin Trudeau presumably. And we don't know. I've tried to contact the lobbying commissioner and you know they tend not to talk about investigations. I think they're aware of it and they may be doing something. So that's separate from the conflict of interest commissioner. But Anna Maria, here's the other key question: the PM's office said the prime minister used Air Force Challenger executive jet to get from Ottawa to Nassau. Nassau is 115 kilometres over open ocean to Bell Island. That's the Aga Khan's Island. The conflict of interest act is crystal clear on this point: a prime minister or any minister cannot travel on a chartered or private aircraft. I asked Seamus O'Regan: how did he and his husband get from Nassau to Bell Island? Answer: the Aga Khan sent over his private helicopter. To come back to the act, that private helicopter cannot be used by the prime minister. So how did he get from Nassau to Bell Island?

AMT: More questions. And just to be clear: it's okay for Seamus O’Regan to take that helicopter ride because he is not in cabinet. He's not a parliamentary secretary.

DAVID AKIN: He’s a garden variety MP. They have different rules.

AMT: Okay. Now I just want to talk about the fact that the Aga Khan has received over $300 million from the Canadian government since 2004. The Trudeau government in 2015 gave a $55 million commitment over five years. How does that funding compare to other NGOs?

DAVID AKIN: They would be among the bigger recipients generally speaking. And as Andrew mentioned, I think there's a broad agreement the Aga Khan Foundation does excellent work and has done excellent work. But so does Oxfam. So does the Red Cross. So does any number of other organizations that would also like to do more great work with scarce or finite Canadian foreign aid funds.

AMT: Now we are talking about this in the context of the fact that late last year, the prime minister was also defending the so-called cash for access dinners after it was revealed he was present at a $1500-dollar plate fundraiser at the mansion of a wealthy Chinese-Canadian business executive in May. Listen to this exchange from December.

SOUNDCLIP

VOICE 1: We have very strict rules on fundraising at the federal level for Canadians to remember.

VOICE 2: But prime minister, your own rules that you announced: there should be no perception of preferential treatment. How does that square with rich people meeting you at private mansions where they get to bend your ear for $1500?

VOICE 1: The fact is, at the federal level, our fundraising rules put very strict limits on personal donations. They have completely eliminated corporate and union donations and there is absolute and total transparency for anyone who gives money to the federal level. Our commitment is to show the highest level of ethical standards and that's exactly what we're doing.

AMT: David Akin, does the prime minister have an ethics problem or a perceived ethics problem?

DAVID AKIN: They’re kind of one and the same when you're at this political level. You know perception can be reality for a great many voters and Canadians and I think the answer is yes on that “cash for access issue”. The context in which these exchanges occurring is key. And as our friend Bob Fife—that was the reporter who was asking the questions there—has carefully explained, you know small dinner with 15 or 20 people in a swanky waterfront mansion owned by a millionaire is different from what often a lot of politicians do, which is you know you go to the local Legion, there's 300 people, it's a rubber chicken dinner. The politician gives a nice speech, makes a few jokes and takes a few pictures and off he goes. On this trip to this island, here's the other issue: there is no reporting requirement. The prime minister saying on the cash for access, he’s followed all the rules and there is a reporting requirement. We're going to find out. There is no reporting requirement about his activities on a holiday. And so it's really as the prime minister himself said, Anna Maria, you'll remember when he took office, he issued an edict to his ministers to say go above and beyond the law. Be cleaner than clean. And I think there's a reasonable criticism to be made here that the prime minister may want to review his own words on that and talk a little bit more about some of his activities.

AMT: Okay. David Akin, thank you.

DAVID AKIN: Thanks, Anna Maria. Have a great morning.

AMT: David Akin, senior political writer for the National Post. He joined us from Ottawa. Well, for more on the ethical boundaries of the prime minister's personal relationships, I'm joined by Ian Greene. He's a professor emeritus at York University’s School of Public Policy and Administration. He's also the co-author of Honest Politics: Seeking Integrity in Canadian Public Life. He's in our Toronto studio. Hello.

IAN GREENE: Hello.

AMT: Do you think this trip violated the ethics rules that must govern the PM?

IAN GREENE: The one thing that I think for sure did violate the rules was the trip on the private helicopter without—

AMT: If we know that he took it. We don't know.

IAN GREENE: If he took that trip without prior approval of the ethics commissioner. Everything else, I think, is really up in the air. The most important thing to me is that the trip should have been checked with the ethics commissioner in advance, as well as the lobbyist registrar because that's why they're there, to prevent these kinds of things from getting blown out of proportion and embarrassing people. So why they didn't check with the ethics commissioner and the lobbyist registrar in advance, I don't know. But here's one idea: in most of the provinces, all the provinces and the territories have conflict of interest and ethics commissioners and they are required to meet annually with every cabinet minister and member of the legislature. And this creates a relationship of trust so that quite often, the members will contact the commissioner and say look, is this okay? How can I follow the rules? And if they take the advice, then they don't get into trouble. But every time it is not there with regard to cabinet ministers and federal MPs. And this is why we have so many problems at the federal level, I think.

AMT: So who should have done that? The prime minister himself? Someone in his office?

IAN GREENE: Either.

AMT: Because we just heard that quote: “Our commitment is to show the highest level of ethical standards. And that's exactly what we are doing.” What do you make of what Justin Trudeau said?

IAN GREENE: Well, the highest level of ethical standards is a very broad category and it needs to be brought down to something more specific. For example, requiring these annual meetings with the commissioner would raise the standard, prevent some problems. I think using a phrase like the highest level is dangerous because you can interpret it far too strictly. This morning in the Globe and Mail, Andrew Cohen has written that this is blown out of proportion. Compared to what's happening in the US with Donald Trump, this is nothing. Why are we so concerned about it?

AMT: How do you feel about that? Is that a fair argument?

IAN GREENE: That this is being blown out of proportion?

AMT: Yeah.

IAN GREENE: It's a very minor issue compared to what's happening in the US. Canada is far ahead of the US in terms of ethical standards. But on the other hand, it's the small issues that people can understand, such as having a private vacation with a multibillionaire that many of us wouldn't have the opportunity to have. These are the kinds of things that begin to diminish trust in government.

AMT: And one could argue, could one not, that despite what is going, we're all watching what's going on in the US and they do have a great deal of stuff swirling around, conflict of interest and ethics concerns. But one could argue it's a slippery slope.

IAN GREENE: Well, that's right and that's why we have the ethics commissioner office, the lobbyist registry there to try to prevent people from going down that slippery slope. So it should be used. So it was a mistake not to have contacted them in advance.

AMT: And you have a prime minister who says he wants to hold everyone to the highest standards. So the optics of this, do they matter as much as the actual details as well?

IAN GREENE: I think the optics are very, very important. I think another thing that all federal parties could do is to develop their own internal codes of conduct that are enforceable, that would prevent some of these things from happening. But for some reason, our politicians are gluttonous for punishment. They like to get into trouble over and over again and this trouble could be easily prevented.

AMT: And there seems to be a question of transparency here. Why shouldn't we know where the prime minister's going?

IAN GREENE: That's another issue. Most Canadians really do think that politicians deserve their privacy and if the prime minister wants to have a private vacation, I mean it's very stressful being in public life. I think all politicians, regardless of their political background, deserve to have some privacy. But that's why I think it's important to check with the ethics commissioner in advance, make sure that you're doing the right thing, and then it's really up to the individual as to how much information they want to release.

AMT: And again, we are looking at something that says you can receive gifts from family or friends.

IAN GREENE: That's right.

AMT: But there's also another rule that says if you are a registered lobbyist, you cannot give a gift.

IAN GREENE: That's right.

AMT: Including a gift of property.

IAN GREENE: That's right. And this is where the—the foundation is a registered lobbyist. The Aga Khan is not. So it's a gray area and you need to get the advice of experts in advance.

AMT: Do you think the critics would accept an ethics commissioner ruling that it was okay?

IAN GREENE: Oh yes. Mhm. We have an excellent lobbyist registrar and an excellent ethics commissioner. I think that would help a lot.

AMT: And if you put this next to the other issue, which was the pay for access issue, where do you see the Liberal government making stumbles?

IAN GREENE: Well, it's interesting. Pay for access—money in politics often has to do with undue influence—I don't think it's a question of undue influence here. It's a question of equality that many people can't afford pay for access. But the conservatives have been you know better than the liberals that pay for access. The NDP is pretty good at it too. So I think we have a little bit of hypocrisy going on.

AMT: So we need to be transparent on all fronts.

IAN GREENE: We do.

AMT: Okay. Ian Greene, thanks for coming in.

IAN GREENE: You’re very welcome.

AMT: Ian Greene, professor emeritus at the School of Public Policy and Administration at York University. He's the co-author of the book, Honest Politics: Seeking Integrity in Canadian Public Life. Stay with us. The CBC News is next and then—

SOUNDCLIP

I had always been taught that people of authority, the police, you know were here to help me and here I was being questioned by these people and told that they didn't believe my story either and that I needed to confess to something that I didn't do.

AMT: What they wanted her to confess to was murdering her son. The accusation was the result of the work of one pediatric forensic pathologist. Retracing the wreckage of Charles Smith's career is in our next half hour. I'm Anna Maria Tremonti. You are listening to The Current on CBC Radio One, Sirius XM and online on www.cbc.ca/thecurrent.

[Music: Sting]

Back To Top »

Charles Smith scandal: How a mother wrongly accused of killing her son fought back

Guests: Maurice Gagnon, Lianne Thibeault, John Chipman

AMT: Hello. I'm Anna Maria Tremonti and you're listening to The Current.

[Music: Theme]

AMT: For the next hour, we're looking at an egregious chapter in Ontario's investigation into the deaths of young children. The work of one disgraced pathologist leads to a parent's worst nightmare.

SOUNDCLIP

CHARLES SMITH: I am here to take full responsibility for my work.

REPORTER: Inside the hearing room, Smith faced half a dozen people whose lives were devastated by his admittedly shoddy work—forensic pathology that led authorities to suspect them of murdering children, often their own. Smith's opinions and insistence led police in Sudbury, Ontario to suspect Lianne Thibeault of murdering her son Nicholas. Today, Smith admitted his mistakes in that case and others as he apologized over and over again.

CHARLES SMITH: I am likely solely responsible for all of the difficulties that Nicholas’ family has suffered.

AMT: Well, that was CBC News reporter Ron Charles on the Goudge inquiry from January 28^th, 2008. It was a day of reckoning for Charles Smith, the one time top pediatric forensic pathologist in Ontario whose credibility was destroyed when he was exposed as a sloppy investigator whose incompetence helped put innocent people behind bars. His work and testimony ruined lives and The Current’s producer, John Chipman, details the wreckage wrought by Charles Smith in his new book, Death in the Family. We will hear from him later on the program, but first I'm joined by two people who are integral to the story. Lianne Thibeault’s son Nicholas died in 1995, a tragedy that pulled her family into the vortex of the Charles Smith scandal. Lianne Thibeault is in Sudbury, Ontario. Her father Maurice Gagnon joins us from Brooksville, Florida. Hello to you both.

LIANNE THIBEAULT: Hello.

MAURICE GAGNON: Hello. Good morning.

AMT: Lianne, I'm just wondering—it must be hard to listen to Charles Smith admit his responsibility in that clip.

LIANNE THIBEAULT: Yeah, it definitely brought back a flood of emotion and memory for sure.

AMT: Let's start at the beginning. Tell me about your son Nicholas.

LIANNE THIBEAULT: Oh, he was a very happy little boy. I lived at home with both of my parents and Nicholas basically had three parents. He was very close to all of us. I would actually say he was probably closest with Grandpa. He was the light of our lives.

AMT: Maurice, tell me about your grandson.

MAURICE GAGNON: Well, as Lianne suggested, he was more of a son to me than a grandson because Lianne being a single mother and I was the only man in his life. He was the light of my life too. I mean we had all kinds of little things that we did together. Saturday morning was dance time. Every Saturday morning I’d pick him up and we'd dance to “Sleep Walk”, if you remember that song. He was the light of our life.

AMT: Well, I want to take you back to November 30th of 1995. Nicholas is 11 months old. And Lianne, you are home with him. What happened?

LIANNE THIBEAULT: Well, for starters, really up until that terrible moment, I have to say that was probably one of the best days that Nicholas and I had spent together. It was the first real snowfall of the season and I took him for his first sleigh ride. He was so happy. He thoroughly enjoyed it and we just spent a really wonderful day together. He ended up having his naps that day, resting on my shoulder in the rocking chair—which wasn't typical—but he was just so comfortable there I couldn't bring myself to bring him to his crib. So really wonderful memories actually. But later in the afternoon, he was playing in our rec room and he had crawled underneath the sewing table because the sewing table was in the corner of the room and there were two windows in that corner and he liked to look out into the backyard. He had crawled underneath the sewing table and he tried to stand up and he had banged his head on the under part of the sewing machine and fell to the ground. He had let out a really loud sharp cry as he went down. So I went to him to pick him up and when I looked at him he looked like he was in the process of a really long cry. But he had no breath left to, you know, to continue on with it so I was waiting for that big gasp of air so he can continue with his cry and it never came. So when I looked at him, I could tell that he wasn't breathing. I immediately flipped him to his belly in my arms and I started pounding him on the back to see if perhaps he was choking. I didn't know what was going on and my first reaction was to hit him on the back to see if I could dislodge something or get him breathing again. When that didn't work, I immediately just held onto him as tightly as I can and ran out the door and across the street to a neighbour who was a nurse, Lynn, and just stormed through her door. She was in the process of sitting down to dinner with her family and I just, I put Nicholas in her arms and I said he wasn't breathing and she needed to help me. And quite honestly, from that point on, it's a bit of a blur. For some reason, my brain just won't let me process the information. I remember other neighbours trying to console me or bring me back into my house. I remember my father coming home from work and I believe we both ran over to Lynn's house to see if CPR was working. And then next thing I knew, my father and I were in the car and we were heading to the hospital following the ambulance who had left before us.

AMT: He lost consciousness. Did he ever regain consciousness?

LIANNE THIBEAULT: I don't—no, I don't think he did.

AMT: And he was pronounced dead at the hospital.

LIANNE THIBEAULT: Yes. I believe they worked on him for a little while but the doctors did come in to the room where we were all waiting—I don't know how long we had been waiting there—to tell us that that he didn't survive.

AMT: Maurice, how did the death of your grandson change you in the weeks that followed?

MAURICE GAGNON: Oh, needless to say, I was totally devastated. I’d go to work about a half a day and I couldn't take it anymore. I’d go home. And I ended up on Prozac for three months. I mean this happened, as you stated there, in November, the end of November. I remember going to the mall, everybody laughing and having a great time as you do around Christmas time and I remember feeling what's wrong with you people? Don’t you know I just lost my Nicholas? I figured the whole world should be grieving with me.

AMT: There was an autopsy performed, Maurice. What was the original ruling on the cause of death?

MAURICE GAGNON: The local coroner called it SIDS. But of course it wasn't SIDS because he wasn't sleeping and in his crib. So they changed to SUD, which is sudden unexplained death.

AMT: So you didn't find out that it was being seen as a homicide till about a year and a half later. Is that right, Lianne?

LIANNE THIBEAULT: Yeah, we had no idea until the weekend of my bridal shower. From when Nicholas passed on, I reconnected with my high school sweetheart actually, who had been extremely supportive of me dealing with my grief with Nicholas. He brought me to bereavement counseling and he took me to the cemetery to visit Nicholas and he was very, very supportive of me in that way. And we were engaged within seven or eight months of our dating. So on the weekend of my bridal shower, two police officers showed up at the door and said that they had wanted me to come down to the police station because they wanted to close up Nicholas' file. I went along and went to the police station to tell them everything that happened. And when I was done telling them, they informed me at that point that they didn't believe my story and that a doctor in Toronto had reviewed Nicholas' autopsy results and believed that I was responsible for his death.

AMT: And the doctor in Toronto was Charles Smith.

LIANNE THIBEAULT: Yes.

AMT: And so Charles Smith had looked at the change from SIDS to sudden unexplained death syndrome and then raised his suspicion on the strength of that, that this could be a homicide.

LIANNE THIBEAULT: That was my understanding of it. Yep. When I realized it, it was complete shock and disbelief. It made absolutely no sense to me. I had always been taught and led to believe that people of authority, the police, you know we're here to help me and here I was being questioned by these people and told that they didn't believe my story either and that I needed to confess to something that I didn't do. It was a very horrific, nightmarish interview, to say the least. And it wasn't until I had asked to see a lawyer that they finally stopped and allowed my fiancé Pete to come into the room to speak to me. However, little did I know that they had left recording devices open and hoped that I would say something to Pete at that time.

AMT: Maurice, what did you think when you learned that your daughter was now under suspicion for killing your grandson?

MAURICE GAGNON: Well, initially disbelief but we had no reason not to believe that Smith was the top authority in forensic pathology, or at least pediatric fatality. And we just figured well, he saw something that gave him a conclusion that shouldn't be there. There’s something that we couldn't explain. So we proceeded to rack our brains and figure out what could have happened that would give him that impression. And no matter what we suggested, like a former fall and that sort of thing, they just wouldn't accept anything. So ultimately, they exhumed the body. They were going to do another autopsy.

AMT: And that comes at the request of Charles Smith, does it not? The exhumation.

MAURICE GAGNON: Oh yes, it does.

LIANNE THIBEAULT: Well, we were told at the police station that they were going to be as discreet as possible with the exhumation. They were going to do it at dawn. So around lunchtime on that day, I had wanted to see what kind of damage they had done. So when I went up to the cemetery, I was completely shocked to see a group of people standing beside my son's grave. And they were still in the process of pulling the dirt out of the ground and onlookers wondering what was going on. I could also see a little boy kind of playing in the dirt. I was furious and I tried to get out of the car and go to the site to see what was happening. And the police officer came to my car and would not let me get out of my car and told me that I had to wait until everybody had left and they had taken Nicholas' body with them.

AMT: Who was the little boy playing in the dirt?

LIANNE THIBEAULT: It was Dr. Smith's son.

AMT: As all of this is happening, what's going on in your home, in your mind, in your conversations with your parents?

LIANNE THIBEAULT: I do have to say that from the minute the police did accuse me of that, I never felt that my parents believed it. I never felt that my future in-laws believed it or my fiancé. My loved ones just knew me and knew that this was not possible. But you know like my father has said, we had tried to provide the police with possible scenarios that could have resulted in Nicholas' death. I was trying to cooperate at that point saying well, perhaps you know when I ran across the street to bring Nicholas to Lynn, I was holding him so tight to my chest. Could I possibly have suffocated him at that point? Or a couple of weeks before his passing, he got a really bad bump on the head at the babysitter's house. Could that have been something that manifested later on? Just thinking that this has to rectify itself because the system is not going to you know put me away for something that I didn't do. The system doesn't work like that. I guess it was kind of a naive notion at the time.

AMT: Maurice, you became a papa bear.

MAURICE GAGNON: I did indeed. Initially, we were sort of waiting for the results of the second autopsy, thinking that okay, now Smith is going to have a look at the body rather than somebody else's X-rays and realize that hey, I was wrong. Ultimately did come back and apparently they had a big meeting at the police station including the crown attorney. And at that point, the crown attorney said there was not enough evidence to get a conviction so no charges will be laid. And at that point, we figured it was all over.

AMT: But it wasn't. What happened?

MAURICE GAGNON: What happened? At that point, Lianne had been married for a while and she was pregnant. I happened to mention that Lianne was pregnant. So the police reported that to the Children's Aid Society that Lianne was pregnant and that she had been under suspicion for having killed her first child. So the Children’s Aid they decided that they were going to apprehend her child because a new baby would not be safe with her. At that point, they met with Smith and the deputy chief coroner and that’s when Smith says regardless of what the crown attorney says, I'm still 99 per cent sure that she killed her son. From that point on, Children’s Aid just dug in their heels and proceeded to try to make her unborn child a ward of the crown. And that's when the fight started.

AMT: They went on the strength of the opinion of somebody. This never went to court so it's all hearsay, but they say that but that's enough. For a civil procedure, it was enough.

MAURICE GAGNON: The balance of probability, they call it. So just based on what Smith said, and of course [unintelligible] that Smith had said 99 per cent sure that she still did it, well, that's when Papa Bear really came out of the den because at that point, it's okay, I’m going to exonerate my daughter one way or the other. And away we went.

AMT: And you did that. And you did complain to the chief coroner's office of Ontario, did you not?

MAURICE GAGNON: Oh, I did, yeah. I put in a document. It was about an inch thick. Well-documented in research about Smith and all the shortcomings in his findings.

AMT: And how did the office of the chief coroner of Ontario respond at the time?

MAURICE GAGNON: Oh, they sent me back a letter saying that we checked it out and Smith’s finding are—oh, I forget what the wording are—consistent with a case, such a case or something like that. The [unintelligible] sort of ignored it. And as a matter of fact by the time we got to the public hearing, that was brought up to the chief coroner and he says oh yeah, I read it. But then we find out he didn't really read it. He only read a page of it or something, just figured another disgruntled parent.

AMT: And despite all of this research, Lianne, how determined was the Children's Aid Society in trying to seize your new baby?

LIANNE THIBEAULT: Oh, they weren't backing down whatsoever. They had contacted my husband at work actually, when I was seven and a half months pregnant, to let him know that they were apprehending our child at birth. And they went as far as to say that I would never be a parent to this child and if he did want to be a parent to this child that he would have to leave me. So his options at that point were to separate from me to keep his child or lose his child as well, if he was planning on staying married to me. And like my father said, the fight started from there. We bent over backwards to accommodate everything that they wanted just so that Nic would not be taken away at birth. My parents went through extensive interviews in the hopes of becoming basically foster parents to my daughter if in fact I wasn't going to be able to take her home from the hospital.

AMT: And Nic, Nicole, was born June 27^th, 1998.

LIANNE THIBEAULT: Yes.

AMT: And the Children's Aid Society didn't let you have her, didn't they? They handed her over to your parents.

LIANNE THIBEAULT: They did. Yeah. And even up until I went into the hospital for delivery, a decision had not been made yet. And our family doctor at the time, Dr. Miguel Burnier, was so wonderful to us. He understood everything that we were going through and he was determined to be as helpful as he could at that point. He let me stay in the delivery room with Nic for hours—which was definitely not typical—so that I could bond with her, that I could breastfeed her in the hopes that that could be something that we could present to the Children's Aid, stating that they shouldn't separate us because we had bonded. He had also not discharged me from the hospital for several days until a decision had been made that in fact, Nic would be able to at least go home with my parents and not go home with strangers.

AMT: And so again, you didn't know when you went in to give birth whether Nicole would be going somewhere where you would never see her again or she might be going to your parents.

LIANNE THIBEAULT: Exactly.

AMT: You didn't even know.

LIANNE THIBEAULT: No.

AMT: The Children's Aid does give your parents custody, but there are conditions that are imposed on you. What were some of those conditions?

LIANNE THIBEAULT: They allowed me three hour visitations as long as there was a children's aid worker present and in full view of myself and Nic at all times. I know there had been one or two times where I had wanted to go in and breastfeed. I had continued to give breast milk to Nic. My poor husband would be running back and forth between our apartment and my parents’ house at all hours of the day and night, bringing milk to them, whatever I was able to express. So I had wanted to breastfeed when I was there one day and they said it was fine as long as they could monitor the whole situation. I was just so disgusted with the whole situation that it didn't end up happening. And just some of the comments that they had made as well—we had one CAS worker tell us well, we've never had a murder case before. I hadn't been convicted of any crime in fact. There was no evidence to support that whatsoever and here we have this worker coming into our house, already calling me a murderer. They had placed my name on a child abuse registry. And my hope at that time had been to teach children. Well, with my name on this registry, that was never going to be a possibility either. It was a very, very difficult few months for sure.

AMT: How did you get to the point where in fact, you were able to regain custody of Nicole and get to the point where you got the apology?

LIANNE THIBEAULT: Well, initially within her first six weeks, we did end up going to court and the judge did award custody to myself and my husband Pete, under the provision that we were to move in with my parents. And again, I still needed to be supervised. It didn't have to be as a CAS worker. It could be people that had been approved by the CAS, so my parents being two of them, my husband and there was a list of people. So we were able to move into my parents’ home for about 10 months and be a family again. It wasn't the ideal situation but it was much better than the alternative.

AMT: Maurice, how much money did you spend trying to make sure that Lianne had the experts in her corner, the lawyers and everything else it took to fight this case?

MAURICE GAGNON: It was over $100,000 and that was pretty well coming out of my retirement fund, what my wife and I had saved for retirement. But I mean that wasn't even a question of whether or not I was going to do that. But to answer your question you gave to Lianne is when did they finally back off and we got an apology? When we were prepared to go to court on what they call a Section 51 to determine the final determination on this. My lawyer pointed out to the lawyer for the Children's Aid that Smith was the only one with an opinion. Children’s Aid were given the impression that the deputy chief coroner Jim Cairns was also going to testify, that yes, I looked at everything and Smith is right. Cairns finally admitted that no, he didn't have the expertise to do that and he never did look at any of the evidence. So at that point, the Children’s Aid they decided that there is no way they can go to court and win this with only Smith's opinion. So they asked the chief coroner's office to get a second opinion, which I've been asking for two years, and they got Dr. Mary Case, chief medical officer for the state of Missouri. She came back with a scathing report against Smith: there is absolutely no evidence to suggest that blunt force trauma or asphyxiation was the cause of death. That's when CAS just dropped everything and wrote us a letter saying that we decided that you would be good pairs for Nicole, which was an insult of course. I need their approval to be a good parent.

AMT: Lianne, what is life like for you now?

LIANNE THIBEAULT: Life is busy. Life is chaotic. I have two children. Nicole is now 18 years old and I have a 13-year-old son named Noah. Nic is, she actually has very severe autism and I'm not completely convinced that her autism wasn't caused as a result of all the stress that I was under during my pregnancy. Research does prove that overdue stress in the mother can cause developmental disabilities in the fetus. So during my first trimester of pregnancy, I was being accused of murder and I didn't know whether or not I was going to be going to jail. And in my third trimester of pregnancy, I was being told that my baby was going to be taken away at birth. So that's always something that sticks with me. But her disability has actually caused me to change my career path. I have definitely become a passionate advocate for autism and I now teach at our local college here in Sudbury at Cambrian College and I teach in the developmental services worker program which teaches people how to work with special needs.

AMT: Well, it's an incredible story that you tell—a very disturbing one. It's important to hear your voices today. Thank you, both of you, for speaking with me.

LIANNE THIBEAULT: Thank you.

MAURICE GAGNON: Oh, our pleasure.

AMT: That’s Lianne Thibeault in Sudbury and her father, Maurice Gagnon, in Brooksville, Florida. If you're joining us partway through, you can go to our website, www.cbc.ca/thecurrent, and listen there or download the podcast to hear what they had to say. Stay with us. We're going to continue this conversation about Charles Smith in our next half hour. The Current’s producer John Chipman investigated the bigger story. He revisited those who lived this story and he explains how the work of one faulty forensic pathologist was able to hurt so many families. I'm Anna Maria Tremonti. This is The Current.

[Music: Sting]

AMT: Hello, I'm Anna Maria Tremonti and you're listening to The Current. In our last half hour, we were listening to Lianne Thibeault and her father Maurice Gagnon—two of the many people whose lives were profoundly harmed by the work of pediatric forensic pathologist Charles Smith. An inquiry in 2008 found serious problems with his handling of autopsies and investigations into the deaths of children in Ontario. Those problems helped put innocent families of dead children in the crosshairs of the law. Now if you missed my conversation with Lianne Thibeault and her father, you can hear their story on our website, www.cbc.ca/thecurrent or on our podcast or on the CBC Radio app. John Chipman is a producer here at The Current. Independently of his work here, he has spent four years investigating the Charles Smith scandal and tracking down those affected by it today. He is the author of Death in the Family and John Chipman is with me in our Toronto studio. Hi, John.

JOHN CHIPMAN: Hi, Anna Maria.

AMT: You know in listening to Lianne and Maurice, I'm really struck. Again, as I read through the cases you highlight in your book that the people accused of murdering their children on the strength of Charles Smith's work were almost all marginalized—a single mom, somebody with addictions, people who were impoverished—maybe all three or variations of that. And Lianne was a little different. She was a single mom but she had her parents in her corner.

JOHN CHIPMAN: Yeah. I mean it was nice listening to them and I think you know anyone that listens to Lianne and Maurice, I mean you can just tell that they are such a tight family. Right? I mean she had support that so many other people that got caught up in this Smith thing didn't. And you know I don't think it's an accident that her case ended up being a wrongful accusation as opposed to a wrongful conviction. I mean in all the research that I did from the book, you quickly realize that you need help to navigate the justice system. You need people in your corner to figure out how to do it and so many of these people were living on the fringes of society. They had run ins with the law before. Perhaps they were struggling as single parents or something. They'd been involved with children's aid and you know when a child dies and the circumstances don't quite make sense on the surface, it's really easy, I think—it was really easy for Smith and for other people involved in those cases—to just assume the worst, even if the specific evidence that they looked at in the autopsies didn't go there. Circumstantial evidence played a really big part in so many of these cases.

AMT: Well, remind us: how many of Charles Smith's cases were found to have led to miscarriages of justice?

JOHN CHIPMAN: So when they finally came around to looking at it, they investigated 45 cases—criminally suspicious pediatric deaths—that he had done over a period of about nine years from 1992 to 2001. And of those 45, they found problems with his opinions in 20 of the cases and of those 20, 13 involved convictions. Now that 13—that doesn't mean that he was directly responsible for the 13 convictions—it just means that they found problems with his testimony, with his medical opinions, with his work in the autopsies in those 13 cases. And of those, I think there's been seven that have been overturned now.

AMT: And there was one conviction or one not criminally responsible as well.

JOHN CHIPMAN: Yeah, that’s right.

AMT: Okay. So a lot of cases. Give me an idea of the scope of your research for this book.

JOHN CHIPMAN: It was overwhelming at times, to be honest with you. I mean you could write a book about each of these cases individually and so one of the really big challenges when I was trying to figure out how I was going to frame this book was how do you how do you pick? I can't write a book that covers all 20 cases. That would be 2,000 pages or something. So what I found when I looked at the 20 cases is they broke down into kind of three distinct groups. There's the wrongful convictions and those wrongful convictions kind of break down into two categories. There's the wrongful convictions that we all typically think of, which are you know a child dies or a person dies, a person is accused, charged and they maintain their innocence. They didn't do it. And so they're charged with murder and they're convicted and they go to prison for a lengthy amount of time and there's a couple of cases, one of them that I feature in the book that involve people going to prison for you know 11 or 13 years and stuff. So that's kind of one and I picked one case that looked at that—Tammy Marquardt’s case—and then there was another group of wrongful convictions which I think of as wrongful pleas, which you know when it came to me about what that means, a wrongful plea. So a person is—a child dies and then a person is facing a murder charge and for a whole variety of reasons, they decide to plead guilty to a lesser charge to avoid a potential murder, like a potential life sentence. So you just think about that. As a parent, you know your child has died, you're dealing with the grief of that, then you become a murder suspect and then for a variety reasons we can get into, you decide I'm going to say I did something when I didn't do anything. And so there's a whole bunch of cases in the Smith cases that kind of follow that framework where people didn't necessarily go to prison for a long time, but they had to stand up in court and say I hurt my child. I played a part in their death, when they didn't. And then the third, the third is Lianne's case, which were wrongful accusations, which in those cases you know they're the ones that ostensibly the system worked, right? I mean it stopped, it corrected itself before a conviction could be put in place. Right? And as you heard from Lianne, that doesn't mean that the system worked. I mean the weight and the grief, the trauma that that family was forced to go through—even though she was never even charged let alone convicted—but they paid a heavy price for sure.

AMT: Well, I want to ask you about another case and this involves a woman by the name of Brenda Waudby. Who is she?

JOHN CHIPMAN: She's a young mother in her twenties living in Peterborough, Ontario. Two daughters— a seven year old named Justine and a 21 month old named Jenna.

AMT: Jenna dies on a night that Brenda has left the kids with the teenage babysitter.

JOHN CHIPMAN: Yeah. She lives in a house, in a basement apartment in a house, and the babysitter lived upstairs. And she had to go out one evening, left them about five o'clock, got home about eight hours later and Jenna was dead.

AMT: What did the babysitter, JD, tell the police about that night?

JOHN CHIPMAN: He didn't know why she died. That's what he said, basically, that there was nothing that happened that night that could account for her death. You know a couple little—she took a tumble on a slide when they were playing. He said that she fell off a picnic table, plastic picnic table that they had in the basement, you know fell over in the bathroom at some point, but nothing to explain.

AMT: But by the time Jenna is pronounced dead, she has serious injuries. Like something's happened. What do we know?

JOHN CHIPMAN: Very serious injuries. I mean it's really important to note this case is different than all the other ones because this is a case in which a child was killed. All the other cases involved you know crimes that didn't actually happen that Smith found evidence of. This case depended on who did it. And if the injuries happened before Brenda left the child at 4:45 on that Tuesday afternoon, then it was pointing towards her and if they happened afterwards, then it pointed towards JD.

AMT: And what did Charles Smith say killed her?

JOHN CHIPMAN: Blunt force trauma to the abdomen. I mean she was severely beaten. There was, I think, 100 bruises on her body when the autopsy was done when she was brought to the hospital.

AMT: And how does she become the main suspect in the case?

JOHN CHIPMAN: Well, I mean initially, they investigate the two of them quite a lot. But you know gradually—and I mean it hinges on the timing. And so when Smith does the autopsy, he kind of wavers a little bit and he tells him that I don't know if I'm going to be able to be really definitive on when this happened because there are so many injuries and there are of all these different agents he had said. And so he encouraged them to look at what was happening with the child during the day before she died because if she had been injured before Brenda handed him over, you would expect that her behaviour, it would be obvious to people that might have seen her that she was hurt. So Smith, he was kind of wishy-washy initially on when the fatal injury happened and then they slowly start to gravitate towards you know about 24 hours, 28 hours before she died.

AMT: The police set up a sting to try to get her to talk about her daughter. And they sent an undercover female cop to do what?

JOHN CHIPMAN: To befriend. To befriend Brenda and hopefully get her to tell her what really happened. And that's what Brenda told her, that nothing really happened. But in the course of the many conversations that they had, this idea got planted in Brenda's head that you know, Brenda kept saying, I don't remember. Nothing happened. I didn't do anything. And this idea got raised by the undercover officer: well, people have memory lapses when traumatic stuff happens. Is it possible that maybe you can't remember what you did because you are so traumatized by what you did and maybe you are responsible? And it was inadvertent. I talked with the undercover officer and when I explained to her, I went through all their notes and that was the first mention of the memory lapse, was this visit that they had had together and she was like oh my god, I hope I didn't do that.

AMT: She didn’t know she planted the information in her head.

JOHN CHIPMAN: She said she didn't know and she was going to take a look at her notes and then she wouldn't talk to me again after that. But that became very important because all of a sudden, the fact that Brenda didn't remember doing anything didn't matter because she had a memory lapse, so maybe she did do it and she started to convince herself that she must be. She must be responsible because the police were so fixated and focused on her.

AMT: Now this sting actually starts with the undercover officer going to a Narcotics Anonymous meeting to meet Brenda. How did they justify infiltrating Narcotics Anonymous?

JOHN CHIPMAN: That it was a murder investigation. I mean Narcotics Anonymous was not happy, that you know it's supposed to be sacrosanct territory. You're not supposed to be infiltrating that type of stuff. But I mean again, I asked the undercover officer and she just kind of shrugged and said it was a murder investigation. You know that's what we do.

AMT: And I guess to be clear, they didn't use information from the meeting. That's where they met her.

JOHN CHIPMAN: Exactly.

AMT: She eventually confesses to abusing her daughter. Why did she admit this?

JOHN CHIPMAN: Well, I think a lot of it had to do with the fact that she had been investigated for eight months, largely nonstop. And this idea that had got planted in her head which just ate away at her, that maybe she was responsible even though she couldn't remember it. And you know I go in great detail in the book but you know there are these police investigative techniques that are really good at getting confessions. It’s called the Reid technique but they're not really great at differentiating between a false confession and a real confession. And you know you look at her, you look at the interrogation that she went through and it really hits a lot of the steps in a Reid technique. And she didn't—I mean I think you would be very hard pressed to take what she confessed to, which was kind of swinging her arms the night before and perhaps hitting her arms, hitting her daughter Jenna, a couple times to the amount of abuse that the child had suffered. But it was enough for the murder charges, which is what she was facing now.

AMT: And this again is a long process. We're talking—

JOHN CHIPMAN: Well, Jenna died in January of 1997 and this was in September. So nine months.

AMT: And where is the other daughter at this point?

JOHN CHIPMAN: The other daughter was in and out of foster care. And then after Brenda was charged, in that September she went back into foster care and was there until much later.

AMT: But she never goes to trial. What happens to the murder charge?

JOHN CHIPMAN: The whole case, the murder case, falls apart, completely falls apart and it falls apart because eventually Brenda's lawyer goes back to that central issue—which we talked about a minute ago—was that you know this idea of if Jenna was beaten as seriously as she had to be to die, it would be obvious based on her behaviour the day before that she was hurt. Brenda was taking her out and seeing people that day before she left her with the baby sitter. And so people that saw her that day would know that she was injured if she was injured. And so they went back and talked with—the lawyer found clinicians who made this point and then this clinicians confronted Smith, who had said no, no, it was 24 to 28 hours before this and she wouldn't necessarily have shown any signs. And then when confronted with that, Smith changed his mind and you know all of a sudden, the Crown didn't even have their star witness. You know even though he testified at the preliminary hearing that it was 24 to 28 hours, within a couple of months he completely changed his mind and the case fell apart.

AMT: So the case against her falls apart. But then there's JD who had her later. So what happens to him?

JOHN CHIPMAN: Well, nothing for a long time. You know the case, the police investigation kind of continues for a little bit then quickly fizzles out and goes totally cold. And then a new investigator’s brought in a couple of years later and he starts looking at it, reviews the whole case, you know looks at both of them—at Brenda and at JD—and then zeroes in on JD and eventually the police launch what's called a Mr. Big sting operation—a controversial procedure in which they tried to get a confession—and he eventually confessed to murdering and sexually assaulting Jenna.

AMT: Would it be fair to say that the killer almost got away with that murder because there was so much focus on the wrong person?

JOHN CHIPMAN: I think that—I don't know. I mean you hope that the police would eventually—when there's only two suspects, you hope that eventually the police are going to figure out or try to figure out a way to look at this so they wouldn't have left it forever. And in the end they didn't leave it forever. But what's really—you know what I find most egregious is he was a sexual predator and he was on the street for years and years afterwards because the police were so fixated on the wrong suspect.

AMT: Well, what kind of sentence did he get for killing Jenna?

JOHN CHIPMAN: Twenty-two months, I think? He was sentenced as a young offender, even though he was an adult at the time. But the crime happened when he was a young offender.

AMT: You make the point that he was a sexual predator. That was a hair that was found in Jenna's genital area. What did Charles Smith make of that evidence?

JOHN CHIPMAN: He called it a contaminant. He maintained that he had offered it to the police at the autopsy and he said that the police didn't want it and so he took it and put it in a drawer in his office and held onto it. He didn't mention it in the autopsy report. He never mentioned it publicly in any kind of conversations until much later when the second investigator picked it up. It was mentioned in a lot of the ER reports, saying that there had—what looked like a thread or a pubic hair or some kind of trunk hair or something and eventually this police officer goes in and says what was that about? And he says oh, I've got it. It’s in my office. And even crazier than that, he testified at the preliminary hearing—Brenda's preliminary hearing—and this issue of this hair, this mysterious hair that had disappeared, came up and he was questioned about it and he said I didn't know what was with this hair. I don't know what you're talking about. And it was in his pocket. He brought it. He later admitted that he brought it to the preliminary hearing and it was in his pocket when he was being questioned about it on the stand.

AMT: After it became clear that Charles Smith's testimony and investigations were flawed, what happened to the child abuse conviction that was hanging over Brenda Waudby’s life?

JOHN CHIPMAN: It just went on. Right?

AMT: Because she had admitted.

JOHN CHIPMAN: She had admitted, right? She had admitted this and it stuck. Like in one hand, her defence lawyer had figured out a way to make the murder charge go away because you know he focused on finding someone to challenge Charles Smith on how Jenna would have behaved that day. But when it came time for the murder charge to go away, Brenda maintains—and her lawyer [unintelligible] vehemently denies this—but Brennan maintains that it was a quid pro quo, that the only way they were going to drop the murder charges if she confessed to a lesser charge, you know this wrongful plea. And so she got into a situation where you know the other really important thing is Justine is in foster care and she's been in foster care for approaching two years. And after two years, the child can become a ward of the state and she's lost to Brenda forever, because after you become a ward of state, you can be adopted and given to other parents and stuff. And so more than anything, I think that was really what it was, is she needed to get Justine back and if she didn't do this, she would have lost her forever. So she agreed to take this plea.

AMT: It's interesting because Brenda is one of several people you document in the book who make choices that aren't really the best choices sometimes, in how they're dealing with the justice system. But it's a labyrinth and they're not familiar with it because the argument to her was well, you did plead to that, to that so-called lesser charge. But the argument was you did plead to that and you're an adult. You knew what you were doing. But it's much more complicated than that in the justice system.

JOHN CHIPMAN: It's a much more, much more complicated. I mean she pled. She made that confession to the police and she took it back in a signed letter that she wrote her letter to her lawyer like that day. Before she left the police station, she wrote a letter and took it all back. But it took her a very long time to get that straightened out afterwards.

AMT: And it's gone now.

JOHN CHIPMAN: It's gone. But it took 13 years for that to go away. Even throughout the Goudge inquiry, she was convicted and confessed child abuser. But even Goudge, this investigation that they had, the Goudge inquiry, looked at all of Smith's stuff but it was so focused and fixated on the murder cases, right, on Jenna's murder. This was something different, this was abuse, and so it kind of got sidestepped. And so she was kind of forced to go through this very public inquiry which was supposed to help her but it maintained this facade that she was a convicted and confessed child abuser. And even though at Goudge, they found evidence that suggested that well maybe the evidence on the child abuse charge doesn't stand up either, they didn't really deal with that. After the Goudge inquiry, she hired a pathologist, her defence lawyer hired a pathologist to look at it again and they finally realized that it was all at the same time, that JD was responsible for all of it. And in 2012, she went back in court and they set aside the child abuse charge, conviction.

AMT: Why do you think Charles Smith was so convinced that these children had been murdered by their relatives when there was other evidence that pointed to other reasons for deaths?

JOHN CHIPMAN: Well, there was a culture in the Ontario's coroner's office in the mid-nineties that abuse and even to the point of killings was going undetected. This was largely hinged not on a pediatric case. There was a couple cases. The highest profile one was Tammy Homolka. Right? Karla and Paul killed Tammy but the case is initially ruled a natural death. And it’s years later they kill Kristen French and Leslie Mahaffy.

AMT: Right. This is Paul Bernardo and Karla Homolka.

JOHN CHIPMAN: And if the feeling was if they had of got Tammy's case addressed properly, then they wouldn't have been free to do their later crimes. And so there was a feeling that you know at the coroner's office, death investigators—including pathologists and police—everybody have to be hyper vigilant and super aggressive in their investigations, which makes sense. You want people to catch child abuse. Of course we want to catch people who are abusing their children. But there have to be guidelines. People have to understand what their roles are and Smith didn't. You know he didn't know how to do his job and he didn't know what his role was and in that environment, he was able to cause all the trouble that he did.

AMT: Well, he did not operate in a vacuum. What happened to the Ontario chief coroner and the deputy coroner who oversaw his work?

JOHN CHIPMAN: Yeah. Well, they testified at the inquiry that was held in 2007 and 2008 and they were asked some very, very difficult questions about the protection, the cover that they had offered for Charles Smith. James Young was the coroner and Jim Cairns was the deputy coroner. And basically nothing happened beyond the kind of public questions that they faced there. There was an investigation launched by the College of Physicians and Surgeons. And in lieu of ending that investigation, they agreed to basically give up their right to practice medicine in Ontario or in any other province and their careers basically ended.

AMT: So both Cairns and Young, their license to practise medicine was expiring and they agreed that they would not renew it and they would not practise medicine.

JOHN CHIPMAN: Yeah. There is a process where you have to renew your license and they agreed to give up their license in place of the College of Physicians and Surgeons stopping their investigation into them and they would have to notify the college if they wanted to practice medicine again. And then you know the onus or the idea being that the investigation would start anew. So they traded basically—stop the investigation and we’ll go away.

AMT: And they were never charged with anything.

JOHN CHIPMAN: No. No one was ever charged and Smith wasn't ever charged.

AMT: Smith was never charged?

JOHN CHIPMAN: No, he was never charged. No.

AMT: And Charles Smith? There was the Goudge inquiry.

JOHN CHIPMAN: Yeah. He testified for a week and had to answer for his conduct in these 20 cases. And eventually, the College of Physicians and Surgeons did a full investigation which they completed and they revoked his license and formally reprimanded him for his behaviour in a number of cases.

AMT: And what was the lesson, the wider lesson then, of this case of Charles Smith?

JOHN CHIPMAN: I think it comes back—and it's not just a lesson for Charles Smith—I think the lesson really is that the thing that really struck me about Charles Smith and really drove my interest in this case in the first place was that this is a person who we, as a culture and a society, normally lionized. Like he saw himself as the last line of defence for defenceless children. You know he saw himself as a person who was going to avenge children who had been killed by the people who were supposed to care for them. Those are people we stand up and applaud and for a long time in his career, he was someone who was held up and applauded. You know they wrote glowing reviews or glowing articles in the newspaper about him and he appeared in television stuff and so what's really interesting is even if you are doing good work, you still have to follow within the rules. The key thing for Charles Smith is he did not know how to be objective. He felt like he had all the answers and he didn't know how to set aside information that didn't have anything to do with the autopsies that he was—his role in the death investigations was to do the autopsy and tell them what he felt had happened. All the other circumstantial stuff is not supposed to influence him and he was not able to put that aside. And he became so narrow-minded in terms of his opinions. As new information came in, as other people looked at it, he held onto it and he would not give it up.

AMT: Where is he today?

JOHN CHIPMAN: To be honest, I'm not sure. I don't know. I spent years trying to convince him to speak to me. And you know at the Goudge inquiry—which was again almost 10 years ago, nine years ago now— he was living out in Victoria and after the Goudge inquiry, he just kind of disappeared and he really hasn't been heard from since. I can't say for sure if he is still out in BC. I mean repeated requests through his lawyers, I found his ex-wife and I even found an e-mail for him directly and I never heard a peep from him. So I can’t really say where he is.

AMT: Long stories with many consequences. John Chipman, thank you.

JOHN CHIPMAN: Thank you.

AMT: John Chipman is the author of Death in the Family. He's also a producer here at The Current. And just a note: while Charles Smith has said he accepted full responsibility for his actions which led to numerous miscarriages of justice that we've been discussing today, he had also maintained that he did not intentionally set out to hurt innocent people. It's now time to acknowledge the hardworking and wonderfully relentless people behind the scenes here at The Current.

SAMIRA MOHYEDDIN: I'm Samira Mohyeddin, one of the producers here at The Current. The rest of my colleagues that helped put the show together this week are Idella Sturino, Howard Goldenthal, Ines Colabrese, Lara O’Brien, Shannon Higgins filling in as writer this week, Sujata Berry, Liz Hoath, Karin Marley, Kristin Nelson, John Chipman, Pacinthe Mattar and Willow Smith. Special thanks to network producers Suzanne Dufresne in Winnipeg, Anne Penman in Vancouver, and CBC reporter Alyson Samson in St. John’s, Newfoundland. The Current’s writer is Peter Mitton. Our web producer is Lisa Ayuso. Transcriptions are provided by Eunice Kim and Rignam Wangkhang. Our technical producers are Gary Francis and Jennifer Rowley. Our documentary editor is Josh Bloch. Our senior producers are Richard Goddard in Toronto and Cathy Simon in Vancouver. The executive producer of The Current is Kathleen Goldhar.

AMT: And that is our program for today. Stay tuned to Radio One for q. Tom Power is waiting in the wings. I'm Anna Maria Tremonti. Thank you for listening to The Current.

[Music: Ending theme]

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January 12, 2017 full episode transcript

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