W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. C. M., 2010 ONCA 690
DATE: 20101020
DOCKET: C49536
COURT OF APPEAL FOR ONTARIO
Rosenberg, Cronk and Epstein JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
M. (C.)
Appellant
James Lockyer, for the appellant
Alison Wheeler and Jennifer Woollcombe, for the respondent
Heard: October 20, 2010
On appeal from conviction by Justice Timothy C. Whetung of the Ontario Court of Justice dated July 27, 1994.
By The Court:
[1] This appeal originates in the reinvestigation of cases where Dr. Charles Smith had provided opinions and evidence as to the cause of death of children. In 1992, the appellant gave birth to a baby boy at her home where she lived with her parents. Based on Dr. Smith’s opinion that the baby was born alive and died of asphyxia, the appellant was charged with second degree murder. She eventually pleaded guilty to manslaughter. In 2008, the Crown consented to an extension of time to allow the appellant to appeal her conviction. The appellant seeks to have her guilty plea set aside, the appeal allowed and a new trial ordered. The Crown agrees with that disposition. For the following reasons, we accept this joint position. Given the positions taken by the parties, it is only necessary to provide a brief review of the circumstances leading up to the appellant’s guilty plea.
[2] From 1981 to 2005, Dr. Smith worked as a paediatric pathologist in Toronto. While there were warning signals about Dr. Smith’s competence and professionalism, they were largely ignored by the medical community throughout the latter part of the 1990s and early 2000s. In 2005, the Chief Coroner ordered a review of 45 cases where Dr. Smith had provided opinions. The death of the appellant’s child was one of those reviewed. The Chief Coroner’s review eventually led to the Inquiry into Paediatric Forensic Pathology conducted by Justice Goudge of this court. The findings by eminent pathologists and other experts demonstrated serious errors by Dr. Smith. In the appellant’s case, the findings demonstrate that there was never any reliable pathological evidence to support Dr. Smith’s conclusion that the cause of the infant’s death was asphyxia.
[3] In 1992, the appellant, was 21 years old and living with her parents. She gave birth to her child in the bathroom at home. The infant’s body was discovered in a toilet bowl. The appellant maintained that she did not know she was pregnant, and that the baby was stillborn. Dr. Smith conducted the post-mortem and prepared a “Summary of Abnormal Findings”. He concluded that the cause of death was “Asphyxia (Infanticide)”. The same day, the appellant was charged with second degree murder.
[4] The appellant’s trial counsel had difficulty obtaining a forensic pathologist who was willing to challenge Dr. Smith’s findings. In the early 1990’s, Dr. Smith had an outstanding reputation. He was considered the leading authority in Canada in the field of paediatric forensic pathology. The experts that the defence eventually retained had less impressive credentials, and the appellant’s counsel strongly believed their opinions could not convincingly challenge that of Dr. Smith, given his preeminent position. Trial counsel was, however, able to convince Crown counsel to accept a plea to manslaughter, and not to pursue a jail sentence.
[5] Counsel discussed the situation with the appellant, and after careful consideration she agreed to plead guilty to manslaughter. In her affidavit, the appellant explains her reasons for pleading guilty. She felt she was a burden on her family; she was horrified of going back to jail; she was afraid of the consequences of a murder conviction; and she believed that Dr. Smith’s opinion would be accepted over her story. Despite her guilty plea, the appellant has always maintained that she did not know she was pregnant, that her baby was stillborn and that she had not seen any signs of life in the baby.
[6] Dr. John Butt, a forensic pathologist and a former Chief Medical Examiner in the provinces of Nova Scotia and Alberta, was one of the pathologists who reviewed the death of the appellant’s child as part of the Coroner’s Review and the Goudge Inquiry. He was highly critical of Dr. Smith’s conclusion that the cause of death was “Asphyxia (Infanticide)”. In his view, Dr. Smith’s opinion could not be supported by the findings at autopsy. In particular, there was no evidence of mechanical asphyxiation by the appellant. In fact, there is no pathological evidence to support any one conclusion as to the cause of death. Dr. Butt also noted that including the legal term “infanticide” in Dr. Smith’s report was beyond the mandate of a pathologist. Commissioner Goudge made this observation about Dr. Smith’s opinion in the appellant’s case:
First, pathologists should never include a legal conclusion in a report of post-mortem examination. Legal conclusions are outside of their expertise. There is no convention to support the inclusion of legal conclusions in parentheses, and doing so has the potential of interfering with the proper functioning of the criminal justice system.
Second, when using those terms, Dr. Smith was simply speculating about who may have caused the death of the infant or child. … To include pure speculation in the form of findings that cannot be substantiated is inappropriate…
[7] Dr. Michael Pollanen, the Chief Forensic Pathologist of Ontario, also prepared a report in the appellant’s case. While Dr. Pollanen is of the opinion that the child was born alive, he too noted that the exact cause of death could not be ascertained by post-mortem examination.
[8] The appellant applies to have the material gathered as part of the Coroner’s Review and the Goudge Inquiry admitted as fresh evidence. The appellant further applies to have her affidavit and the affidavit of her trial counsel admitted on appeal to explain why she entered her guilty plea.
[9] The Crown fairly concedes that the new expert evidence meets the test for fresh evidence. The Crown also agrees that the affidavits of the appellant and her trial lawyer should be admitted. As Ms. Woollcombe puts it in her factum:
There can be no doubt that the fact that Dr. Smith was believed to have more expertise in the area of paediatric forensic pathology, combined with his opinion that the appellant had murdered her baby, created a very powerful reason for the appellant to agree to plead guilty to the … charge of manslaughter, rather than face trial on murder.
[10] Although the appellant’s plea appears to meet all the traditional tests for a valid guilty plea, this court retains a discretion to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the plea and that demonstrate a miscarriage of justice: R. v. T.(R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), at 519. As a necessary corollary of the power to receive fresh evidence in these circumstances, the court has the power to set aside the guilty plea in the interests of justice, even though many years have passed. This is one of those cases. The fresh evidence establishes that without Dr. Smith’s flawed opinion, the appellant would never have pleaded guilty to manslaughter.
[11] Accordingly, the fresh evidence is admitted, the guilty plea is set aside, the appeal is allowed, the conviction for manslaughter is set aside and a new trial ordered. We wish to thank Mr. Lockyer and Ms. Woollcombe for their assistance with this very sad and difficult case. We also wish to acknowledge the terrible suffering that the appellant and her family have experienced as a result of her guilty plea.
[12] The case for continuing the publication ban is extremely compelling in the unique circumstances of this case and is required to protect the appellant and her family. Accordingly, the order prohibiting publication of the appellant’s identity and prohibiting publication of information that might result in revealing her identity is continued. In our view, that would include information identifying the city where the charge was laid.
Signed: “M. Rosenberg J.A.”
“E. A. Cronk J.A.”
“G. J. Epstein J.A.”
RELEASED: “MR” October 20, 2010