ANCHOR: Okay, so that's our focus tonight, the shocking case of a Toronto pathologist whose testimony sent a number of people to prison. How did it happen? What safeguard should be in place to make sure it never happens again? Joining me tonight to talk about this and to take your calls, criminal defense lawyer Joe Neuberger. And welcome back to Legal Briefs, Joe.
JOSEPH NEUBERGER: Thank you.
ANCHOR: Let, let's set the plate here 'cause I--this is not the Charles Smith inquiry. And I think people have to understand that. This is not an inquiry to find criminal or civil liability. This was an inquiry to conduct a systemic review of the practice of pediatric pathology, forensic pathology from 1981 to now.
And all that's happened here is the, the Charles Smith cases, and he admits that he made mistakes and nobody is going to take anything away from the effect that it had on the families. But it is pointing to a lot of things in that system that's exactly what this inquiry is looking at that were at fault. And I think we got to remember that.
JOSEPH NEUBERGER: Yeah, that's fair.
ANCHOR: And, and, and when you look at this and you see it, I mean there's so many issues to talk about. The issue of the expert witness and what that's like for somebody who is given that title. Today, Dr. Smith said that his training was woefully inadequate. And yet when this man walked into court and anybody who, who is an expert, a jury looks at them almost like they're gods.
JOSEPH NEUBERGER: Absolutely. What, what the public has to understand and the judicial system has to understand is that when an expert witness like that hits the stand, their opinion is so close to what we call the ultimate issue, guilt or innocence--
JOSEPH NEUBERGER: --that it is incredibly powerful and it can sway a jury or a judge very easily. Because a trier of fact, a judge or a jury, will look at it and say well the person is qualified as an expert. As a result of that they come with all of that experience and training and their opinion carries the day.
ANCHOR: Exactly. And, and it's interesting. This is what he's asked with respect to that training to become this expert in forensic pathology. And, and he was, and he was considered by his--by staff, by everyone in the coroner's office, et cetera. He says this, how would--he's asked how would you describe your training in forensic pediatric pathology and he said it was self-taught, it was minimal and retrospectively it was woefully inadequate. And that is very scary. And that's what people should understand when you're looking at this case to look beyond Dr. Smith and look beyond what was happening in the system.
JOSEPH NEUBERGER: The difficulty though is, and I accept that, and that means there is some flaw in the system and hopefully when we're talking about 2000 and onward, the training for these experts is much better and enhanced. The difficulty is when he took the stand he didn't have the humility of somebody who had training that was inadequate. He spoke directly on the issue--
JOSEPH NEUBERGER: --with such assertion as an expert almost to say to the jury or the judge this person is guilty of murder.
ANCHOR: Right. And that--
JOSEPH NEUBERGER: That's the difficulty.
ANCHOR: Right. And that, that's the thing that can never be taken back.
JOSEPH NEUBERGER: It can't. And today when he says I did not appreciate my role as an expert, that is incredible. He understood exactly what his position is an expert when he hits the stand. If not in his first year or his second year or his third or his fourth year, certainly halfway through his career he understood that and he was not daunted by the fact that he did not have adequate training or he did not have the peer review of his, of his work.
ANCHOR: Right. And yet that's, but that's a retrospective look, correct? Because so much of this is a--