People Wrongfully Convicted On Testimony Of Dr. Charles Smith To Be Compensated

People who were wrongfully convicted or accused of killing children based in part on the testimony of disgraced forensic pathologist Dr. Charles Smith will be eligible to apply for compensation from the Ontario government.

The province is offering “recognition payments” for 19 people and some of their family members, “whose lives have been significantly impacted as a result of flawed pediatric forensic pathology,” said Attorney General Chris Bentley.

“This is our way of providing recognition for some of the hurt, some of the pain, some of the anguish those deeply affected by flawed pediatric forensic pathology in these cases have undergone,” he said.

People who were convicted, charged or investigated as a result of flawed pathology can be included in the compensation process.

Retired judge Chester Misener will look at the 19 cases as applications for compensation come in, and will make a decision within 90 days about who is eligible and the amount each individual will receive, with a top payment of $250,000.

A child of an accused who was removed from the home may be eligible for up to $25,000. A family member directly affected by their relative’s case may get up to $12,500, while other family members may be reimbursed for legal costs up to that amount.

One of the most well-known cases involving Smith is that of William Mullins-Johnson, who spent 12 years in prison after being wrongfully convicted of the rape and murder of his four-year-old niece. His conviction was quashed by the Ontario Court of Appeal in 2007 and he has launched a $13-million lawsuit against six doctors, including Smith.

David Robins, a lawyer who represents Mullins-Johnson, called the payments a “pittance.”

“I think that for many of these victims, compensation of up to $250,000 is inadequate,” he said.

However, Robins said the announcement is positive because it moves “the matter of compensation forward.”

The “recognition payments” will not affect any civil lawsuits the wrongfully convicted may have filed or their applications for compensation under a federal-provincial-territorial fund, and are not required by law, said Bentley.

“It is an approach which is the right thing to do, which speaks to the moral, compassionate obligation that we have as a society to address these very difficult cases and the effect that they have had on a number of individuals,” he said.

A judicial inquiry into Smith’s work found the pathologist’s testimony was responsible, in part, for several people being wrongfully convicted of killing children and being sentenced to prison.

The attorney general also repeated the government’s apology for those caught up in the justice system by the flawed testimony from Smith.

“We are deeply sorry, truly sorry for all those whose lives have been affected” by Smith’s testimony, said Bentley.

“I can’t begin to imagine the very difficult circumstances in which individuals found themselves, not only losing a child, but then having it suggested they were responsible for the loss.”

Peter Wardle, a lawyer for four families affected by Smith’s work, said the attorney general’s apology on behalf of the government was important.

“I think that’s helpful for some of them,” he said.

Wardle spoke with his clients after the announcement, and said their reaction was mixed.

“It’s been a long-time coming,” he said.

“So I think they’re pleased that, at last, the government has acted.”

Robins also lamented the time between the judicial inquiry and Tuesday’s announcement.

“It’s regrettable that it’s taken almost two years for the government to come up with a compensation program,” Robins said of the time between the judicial inquiry and Tuesday’s announcement.

“But no doubt, from the victim’s perspective, the offer of compensation will be welcome.”

NDP justice critic, Peter Kormos, called the announcement an “embarrassment.”

“These are paltry sums offered up to people who have suffered the greatest of injustices,” he said.

Kormos said compensation should be awarded on a case-by-case basis, and that $250,000 is insufficient to account for their suffering and loss.

“To offer up these amounts is yet another assault on these victims,” he said.

Another notable Smith case was that of Sherry Sherret-Robinson, who was exonerated in December 2009 after living with the term baby killer for 13 years. The Court of Appeal for Ontario acquitted her of infanticide and pronounced her wrongfully convicted.

She was convicted in 1999 of her four-month-old son’s death three years prior, due in large part to Smith’s evidence that her son was asphyxiated and the death was suspicious.

He found evidence of a skull fracture where other experts found none, and neck hemorrhages Smith referred to were in fact caused by Smith himself during the autopsy, experts said in submissions to the court.

Ministry of the Attorney General