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Dr. Charles Smith fallout: Father acquitted | Mullins-Johnson gets $4.25M

Brenda Waudby

Brenda Waudby

Photo: Charla Jones, Toronto Star

Fighting for her daughter
Mother was arrested in the 1997 death of little Jenna

The charge was dropped, but battle to clear her name goes on

Six years after a murder charge against her was dropped because experts found she could not have killed her 21-month-old daughter, Jenna, three things are painfully clear to Brenda Waudby:

Jenna's killer has not been caught.

Her name has not been cleared.

The authorities who charged her refuse to give her an independent report that the Peterborough woman believes will prove she was wrongly accused.

Police charged Waudby with killing her daughter in September 1997, based largely on a report by Toronto pathologist Dr. Charles Smith.

Dr. Charles Smith

Five other experts disagreed. They concluded that Jenna's injuries were inflicted on the evening of her death, when Waudby was out of the home and the toddler was in the babysitting care of a 14-year-old boy.

Smith no longer performs autopsies for the coroner's office.

Ontario's chief coroner, Dr. Barry McLellan, has since ordered an audit of handling of exhibits at the pathology lab in Toronto's Hospital for Sick Children, where Smith has his office. Just last week, McLellan told the Toronto Star that a search of Smith's office had turned up missing physical evidence that lawyers claim could exonerate a man, William Mullins-Johnson, who has already served more than 12 years in jail for the murder of his 4-year-old niece.

Today McLellan will release results of that audit at a news conference in Toronto.

News of the discovery in Smith's office revived painful memories for Waudby, 39. Years after charges against her were dropped, she learned that Smith kept for five years an adult hair removed from Jenna's body during the autopsy.

She believes that if Smith had handed the hair to police for DNA testing instead of keeping it in a drawer, she never would have been charged, and her daughter's killer would have been brought to justice.

"I am a person who loved my daughter, who was trying to cope with a tough life, and who was brought up to respect the police and the public authorities," says Waudby.

"If it can happen to me, it can happen to anyone else."

Waudby has launched formal complaints and lawsuits against Smith and Peterborough police.

Smith's handling of the Jenna case and two others would later lead to a reprimand from the College of Physicians and Surgeons. The complaint against police was dismissed.

The lawsuits, which are being defended by Smith and the officers, remain before the courts.

Waudby is also pressing the authorities to release a medical opinion relating to her daughter's case that was provided to the Ontario Coroner's office by an expert on child physical abuse.

In April Waudby was again denied access to the document on the grounds that there is an ongoing police investigation.

What Waudby wants, she says, is to clear her name and see someone charged with Jenna's killing.

She wants it for herself, for her son Mac, 6, and her daughter Justine, 15. Most of all, she says, "I owe it to Jenna."

Life was hardly easy for Waudby in Peterborough, 135 kilometres northeast of Toronto, even before Jenna's death.

In 1996, while going through a turbulent separation from Jenna's father, she became addicted to cocaine. In October she gave up custody of Jenna, then a 1-year-old, and Justine, then 6, until she got her act together. Waudby soon seemed to have her life back in control, thanks to a Narcotics Anonymous group and parenting classes. She had her children back with her just six weeks later.

"It was rough" Waudby says. "But it was nothing in comparison to what lay ahead."

On Jan. 22, 1997 Waudby returned from an evening out with a friend after leaving Jenna and her older sister with a neighbour's son.

She remembers pulling around a corner and seeing police and emergency vehicles "all over the street."

As she arrived at the door of her duplex, her upstairs neighbour, the babysitter's mother, was there along with police. There had been an accident, she was told. Jenna was at the hospital and Brenda should go to her at once. It would be a further half-hour before authorities told her Jenna was dead.

"It's every parent's nightmare to walk into something like this," Waudby says. "Every parent's worst fear."

The nightmare intensified as Waudby dealt with doctors and police officers.

"I was treated differently at the hospital that night," Waudby said. "There was something in the way they looked at me and questioned me. I felt that I was being treated as if I had done something wrong."

She still went ahead and gave a statement to the police, took a lie-detector test and provided samples of blood and DNA - all without insisting on the advice or presence of a lawyer.

"I did everything they asked," Waudby says. "All I wanted was for them to catch Jenna's killer."

Eight months later, on Sept. 18, 1997, Peterborough police charged her with murder. She became front page news.

"My name had been plastered all over the front of the paper," Waudby says. "The more my name was in the news, the more people thought I was guilty."

Even close family members thought the worst.

Doug Waudby says he's a fan of police investigative shows on TV. When his sister was charged on the basis of forensic evidence, he believed she was guilty.

"You sort of have to believe science," he says.

Waudby was released on bail on the day of her arrest and soon found she was shunned wherever she went in Peterborough, a small city with a population of about 70,000.

"Going to a doctor's office, I was ashamed to give my name," Waudby says. "I was embarrassed to say who I was."

Doug Waudby watched his sister struggle.

"She is almost 10 years my junior," he says. "Now she almost looks 10 years older than me."

Even years later, she sometimes feels under suspicion.

"You take the kids to the park and families get up and leave, the entire park leaves, for no apparent reason," she says.

"I invited eight kids to Mac's birthday party on May 1 and only two showed up. There may been reasons for a couple of them, but not for the others. It really makes me wonder."

Charles Smith was head of the prestigious Forensic Pathology Unit at the Hospital for Sick Children at the time of Jenna's death, and considered the top expert in the province on determining the cause of deaths of children.

He could not be reached for comment for this story.

Smith found Jenna had died from blunt trauma to her abdomen anywhere between 24 and 48 hours before her death. His opinion, filed at Waudby's preliminary hearing, became the basis for Waudby's prosecution because it placed her at home alone with her daughter when the injuries were inflicted.

His opinion made no mention of indications that Jenna may have been sexually assaulted.

According to evidence at the preliminary hearing and other court documents, the emergency room physician and an admitting nurse both made notes at the time of damage to the toddler's rectum. A firefighter and a police constable both mentioned possible sexual abuse in their notes.

Smith's report also omitted mention of the "curly hair" found near Jenna's genitals.

Peterborough police, who claim they were not told of the strand, confirmed that they obtained the hair about five years later when an officer reviewing the case interviewed the pathologist - and Smith handed him an envelope containing the hair.

Police refuse to say whether it matches the DNA of anyone involved in the case.

"If the police had been given the hair at the outset so that it could be tested for DNA, I doubt that I would have been charged with murdering my daughter," Waudby says.

But she doubts whether the hair is of much value as evidence now because it was not carefully tracked over the years.

Waudby listed Smith's handling of the hair in her complaint to the College of Physicians and Surgeons. She also alleged that Smith failed to perform a standard rape test on Jenna's body.

The College reprimanded Smith in 2002 over "deficiencies in his approach" to the Jenna case and two others.

Smith discussed his handling of the hair in a letter to the College in 2001. "The police, who are responsible for the submission of evidence in a homicide investigation, chose not to submit this material for analysis," Smith wrote. "It remained under seal in my care. I have asked the police investigators to reconsider their decision...."

Since the reprimand, Dr. Smith's work has come under more scrutiny.

In April the chief coroner ordered a review of how the Sick Kids lab has handled exhibits from major cases since 1991. That followed a Toronto Star report that Smith misplaced tissue samples that lawyers for William Mullins-Johnson were seeking so they could arrange for an independent evaluation of the evidence from his trial.

The Sault Ste. Marie man, then 24, was convicted of murder in 1994 after a jury trial in which scientific evidence played a major role in determining the time of death, the cause of death and whether the victim had been sexually assaulted.

Prosecutor Brian Gilkinson withdrew the murder charge against Waudby on June 15, 1999, citing "certain medical evidence that has shifted dramatically." That evidence consisted of six medical experts - including one appointed by the Crown - who rejected Smith's opinion.

They concluded that Jenna's injuries had been sustained on the evening of her death, when she had been left with the teenage neighbour.

At Waudby's preliminary hearing, the babysitter acknowledged that he took Jenna to his apartment upstairs the night she died. The court also heard that the teen had an anger management problem. In court documents he admitted that he hit people and did unpredictable things when angry.

Waudby alleged in a complaint filed with the Peterborough police force in July 2002 that officers never fully investigated the teen, who is now in his early 20s.

Deputy chief Kenneth Jackman dismissed the complaint by letter two weeks later, saying it was filed too late.

Waudby followed up her complaints in late 2002 with an $8.5 million lawsuit against Smith, the lead investigator and the Peterborough police service.

In her statement of claim Waudby accused Smith of "withholding evidence he recognized did not fit the theory advanced by the police."

A statement of claim contains allegations which have not been proven in court.

Smith replied in his statement of defence that he pursued his duties as a coroner "in a careful, competent, diligent manner, and in good faith.

"The post-mortem examination performed by Dr. Smith was thorough, according to standards and done in good faith," the document says. "Appropriate sampling was taken, and follow up investigations conducted. Likewise, where appropriate, consultations from other experts were obtained."

The lead investigator and the Peterborough police services board say in their statement of defence that they "had sufficient cause to suspect, interrogate and surveill (sic) the Plaintiff and ultimately had reasonable and probable grounds to arrest, charge and detain her with respect to the death of her daughter."

The lawsuit is still before the courts.

Eight years after Jenna's death, Waudby says she has lost hope that the force will make an arrest - because of the passage of time and because "they have already bungled it once."

She rests her hopes for clearing her reputation on an independent medical opinion on Jenna's death provided to the chief coroner's office by Dr. Kenneth Feldman, a Seattle-based expert on child physical abuse.

The Feldman report was commissioned by then-deputy chief coroner Dr. Barry McLellan. Now chief coroner, McLellan told the Toronto Star his office provided Feldman with Smith's report and other materials.

A spokesperson for the Children's Hospital in Seattle said that Dr. Feldman could not discuss his report due to confidentiality provisions.

Waudby asked McLellan for a copy of Feldman's report when she learned about it in 2002. She renewed her request recently. But McLellan says a decision to release it is up to Gilkinson and the Peterborough police.

Gilkinson says there is nothing he can do because there is no prosecution before the courts.

Deputy-chief Jackman has declined to release it.

Jackman says that, while he appreciates the investigation has "dragged into seven or eight years," he cannot release the opinion to Waudby because "the fact remains that this thing is an active investigation."

Jackman says there are no officers working full-time on the case, but would not provide details of the investigation.

"This kind of investigation takes time," he says. "We are not going to put a time limit on it."

Time is exactly what troubles Waudby.

"It's eight years later and still no arrest? What if there is never an arrest?" she says angrily. "That report is going to remain buried forever, and that dark cloud will always be hanging over me and my family."

Doug Waudby says that his sister cannot be exonerated by the authorities soon enough. "All this is just draining the life out of her," he says.

"They owe Brenda closure."


Review of Ontario doctor's autopsy work ordered

Ontario's Chief Coroner has ordered a formal review into the autopsy work of Dr. Charles Smith at Toronto's Hospital for Sick Children and the way some high-profile homicide and suspicous death cases were handled.

Dr. Barry McClellan made the announcement as he was releasing the results of an audit investigating the results of autopsies at the hospital beginning in 1991.

It was launched after Dr. Smith allegedly misplaced evidence that lawyers said could exonerate a man convicted of killing his four-year-old niece in 1994.

The missing evidence was found in Dr. Smith's office last week.

  • Dr. McClellan said the review will look into 40 cases since 1991.
  • Dr. Smith has conducted a total of 1,000 autopsies for the provincial Coroner's office.
  • He said his office has become aware of concerns surrounding cases on which Dr. Smith was either a primary or consulting pathologist.
  • "As a result of these concerns, and in order to maintain the public confidence that is very important to this office, I have decided to arrange for a formal review of the pathology materials arising from all of the criminally suspicious or homicide cases where Dr. Smith conducted an autopsy or where we're aware he provided an opinion going back to 1991.
  • "This review will focus on whether the conclusions reached by Dr. Smith in his autopsy or consultation reports can be supported by the information and materials available, including the tissues and slides identified as a result of this tissue audit."
  • Dr. McClellan is considering involving a board of pathologists to conduct the review of the autopsies.

Dr. Smith will no longer be conducting autopsies with the Hospital for Sick Children, the Chief Coroner noted, nor has he asked to do so.

However, he is still employed by the institution.

"And the current practice will be for materials to be stored once they've been reviewed by the pathologist in standard storage areas of the hospital with appropriate documentation when the materials are being received, when they're being returned and if they're moving in the hospital. So, our expectation would be that materials were not stored in a pathologist's office for an extended period of time."

He said the main aim of the probe is to restore public confidence, which he said has been shaken by the allegations.


Coroner orders review of Toronto pathologist

Ontario's chief coroner has ordered a review of a Toronto pathologist accused of mishandling cases of autopsies involving suspicious deaths of children.

Dr. Barry McLellan said the review is being launched because there have been concerns about the cases in which Dr. Charles Smith was either a leading or a consulting pathologist.

"The major impetus here is that of public confidence and in responding to the concerns that we're well aware of arising from some high profile cases,'' McLellan told reporters.

The review will involve criminal and murder cases dating back to 1991. In total, 40 of the cases Smith was involved in will be investigated.

McLellan said the review is the next step in investigating Smith, whose work at the Hospital for Sick Children prompted an audit back in March.

The audit was launched after lawyers for a man convicted of killing his four-year-old niece in 1994 said forensic evidence could not be found.

That missing evidence was found in Smith's office last week, McLellan said.

The lawyers claim that evidence could exonerate their client, who was convicted largely based on the scientific evidence presented with regard to time of death, the cause of death and whether the victim had been sexually assaulted.

McLellan said the current practice at the hospital is for materials to be stored in appropriate storage areas in the hospital, with the appropriate paperwork.

"Our expectation would be that materials were not be stored in a pathologists office for an extended period of time."

The audit was conducted on a total of 70 samples, and McLellan said the audit was able to track relevant tissue samples in almost every case. He called that finding reassuring.

Smith has been involved in more than 1,000 autopsies for the provincial Office of the Chief Coroner.

He has not conducted autopsies for Coroner's Office since Dec. 2003, and he has not conducted autopsies on criminally suspicious or murder cases since 2001, with the exception of one case in 2002.

Smith is still employed at Sick Kids Hospital.

He has attracted criticism from judges and medical authorities for tardy reporting and unwarranted conclusions.

His work on three high-profile cases led to a reprimand in 2002 from the College of Physicians and Surgeons, and a lawsuit related to at least one of those cases is still before the courts.