Court of Appeal for Ontario
Between:
Her Majesty the Queen Respondent
and
Sherry Sherret-Robinson Appellant
Before: Rosenberg, Rouleau and Watt JJ.A.
Counsel:
James Lockyer, P. Andras Schreck and Zachary Kerbel, for the appellant
Riun Shandler, for the respondent
Heard and released orally: December 7, 2009
On appeal from conviction Justice Richard Byers of the Superior Court of Justice dated January 4, 1999.
ENDORSEMENT
1In view of the Crown’s position that the fresh evidence should be admitted, the appeal allowed and an acquittal entered, we intend to provide only brief reasons. This appeal originates in the reinvestigation of cases in which Dr. Charles Smith had provided opinions and evidence as to the cause of death of children. In 1996, the appellant was charged with the first degree murder of her four month-old-son, Joshua. At the same time, child protection officials took custody of her older son. In 1999, she reached an agreement with the Crown that led to her conviction for infanticide. Mr. Justice Byers sentenced the appellant to one year imprisonment. She has long ago served that sentence. Just prior to the sentencing, the appellant agreed to the adoption of her other son by the foster parents with whom the child had been living.
2Dr. Smith performed the autopsy on Joshua and testified at the appellant’s preliminary inquiry. He testified that Joshua died from asphyxia, probably as a result of suffocation or smothering by a third party. Significantly, he also testified about other injuries to the infant that supported a finding of intentional killing, namely, haemorrhages in the neck tissues, a skull fracture and a healing fracture of the left ankle. Based on this evidence, the appellant was committed for trial on the charge of first degree murder, later reduced to second degree murder as a result of a certiorari application
3Just prior to trial, Crown counsel, not Mr. Shandler, agreed to withdraw the murder charge and lay a charge of infanticide. In return, although she pleaded not guilty to the infanticide charge, the appellant agreed not to contest a set of facts that included an allegation that she smothered her child. The facts also set out a summary of the evidence that Dr. Smith gave at the preliminary inquiry, including reference to the skull fracture and the fracture to the child’s ankle.
4The appellant has always maintained that she did not harm her child.
5In 2005, the Chief Coroner began a review of 45 cases in which Dr. Smith had provided an opinion or testified. One of the cases to be reviewed was Joshua’s case. As is well known, this review eventually led to the Inquiry into Pediatric Forensic Pathology in Ontario conducted by Justice Goudge of this court. The findings by eminent pathologists and other experts demonstrated serious errors by Dr. Smith in many cases. In Joshua’s case, the findings demonstrate that Dr. Smith’s opinion was wrong in several important respects. The skull fracture was, in fact, a normal developing cranial suture. The haemorrhages to the neck were, in fact, dissection-related artefacts from the autopsy itself. As for the injury to the left ankle, the experts could say only that it could have been caused deliberately or accidentally. The experts also state that other findings relied upon by Dr. Smith , the petechial haemorrhages and congestion of the lungs, are common findings in infant deaths and not diagnostic of an intentional act. Dr. Smith also found swelling of the brain. The new expert evidence shows that there was no evidence of swelling of the brain.
6As to the cause of death, the experts could find no positive evidence to support a finding of suffocation or smothering by a third party. At the time of his death, the child was not sleeping in a regular crib, but rather in a playpen that contained blankets and quilts. The autopsy findings and the findings at the scene suggest that death probably occurred by an accidental asphyxial means in an unsafe sleeping environment.
7The appellant applies to have the material gathered as part of the coroner’s investigation and the Goudge Inquiry admitted as fresh evidence. The Crown fairly concedes that this material meets the test for fresh evidence. The Crown also agrees that the affidavit of the appellant and her trial lawyer should be admitted. These affidavits explain how it was that the appellant agreed to the procedure that led to her conviction for infanticide. The police, the Crown and the defence all relied upon Dr. Smith’s expert opinion and, given his stature at the time, the appellant and her counsel did not believe that they could successfully contest his opinion. As Crown counsel says in his factum, the fresh expert opinion now conclusively refutes critical aspects of Dr. Smith’s opinion. His opinion was a central underpinning of the Crown’s case at trial and without that evidence there was no reasonable prospect of conviction.
8Given the cogency and reliability of the fresh expert opinion evidence, the Crown concedes that the appeal should be allowed, the conviction quashed and an acquittal entered. We agree. The fresh evidence is compelling and while it can never be conclusively established how the appellant’s child died, it is likely that he died accidentally.
9To paraphrase what this court said in R. v. Mullins-Johnson (2007), 87 O.R. (3d) 125, the death of a child is always tragic. In this case, the tragedy of four-month-old Joshua's death is compounded by the fact her mother was wrongfully convicted of infanticide, served a one-year jail sentence and lost the custody of her other child. It is now clear that the evidence cannot support a finding that the appellant killed her child. Indeed, Mr. Shandler concedes that had the fresh evidence been available back in 1996, the Crown would never have proceeded with any prosecution of the appellant. The fresh evidence shows that the appellant's conviction was wrong and that she was the subject of a miscarriage of justice. It is profoundly regrettable that, as a result of what has been shown to be flawed pathological evidence, the appellant was wrongly convicted.
10Accordingly, the fresh evidence is admitted, the appeal is allowed, the conviction for infanticide is set aside and an acquittal entered.
Signed: “M. Rosenberg J.A.”
“Paul Rouleau J.A.”
“David Watt J.A.”