COURT OF APPEAL FOR ONTARIO
Rosenberg, Sharpe and Watt JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Tammy Marquardt
Appellant
James Lockyer, for the appellant
Gillian Roberts, for the respondent
Heard: February 10, 2011
On appeal from conviction for second degree murder entered by Justice John R. McIssac of the Superior Court of Justice, sitting with a jury, dated October 24, 1995, and pursuant to an order of the Supreme Court of Canada, dated April 30, 2009, remanding the case to the Court of Appeal for Ontario for consideration of the fresh evidence and whether the appellant’s conviction constitutes a miscarriage of justice.
By The Court:
By The Court
1This 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 1993, the appellant, Tammy Marquardt, was charged with second degree murder of her two and a half year old son, Kenneth. On October 24, 1995, she was convicted of second degree murder and her appeal to this court was dismissed in 1998. In 2009, as a result of the reinvestigation of the cases in which Dr. Smith had conducted the autopsy, the appellant applied for leave to appeal to the Supreme Court of Canada. The application was granted and the case was remanded to this court “for consideration of fresh evidence and whether the applicant’s conviction constitutes a miscarriage of justice.”
2Crown counsel agrees that much of the proposed fresh evidence should be admitted, the appeal allowed, the conviction quashed and a new trial ordered. This is the disposition that the appellant sought on her appeal. At the conclusion of oral argument we allowed the appeal and ordered a new trial, for reasons to follow. These are our reasons.
THE FACTS
Events leading up to the death
The Facts
3The appellant was 19 years of age when Kenneth was born. By 1993, she was no longer living with the child’s father and had begun a relationship with Rick Marquardt. She moved in with him in September 1993. Kenneth had several health issues including asthma and pneumonia. However, the health issue that was to become a prominent feature of the case was the cause of the seizures that Kenneth suffered on several occasions. It was the position of the defence at trial that Kenneth had epilepsy and that he died accidentally in the course of a seizure. Prior to his death, the appellant took Kenneth to the hospital several times because of these seizures. The last hospital attendance was in September 1993 when the appellant took Kenneth to Oshawa General Hospital. He was then transferred to the Hospital for Sick Children in Toronto.
4During the appellant’s pregnancy and thereafter, the appellant had several contacts with community social workers. The Crown adduced evidence from some of these social workers about statements the appellant made concerning Kenneth. For example, the appellant said that she occasionally experienced blackouts, that Kenneth was difficult to soothe, she imagined putting her arms around his neck, and placing her hand over his mouth to stop him from crying. The appellant testified at trial that she was only expressing fears that she might unintentionally mishandle Kenneth arising from her exhaustion in caring for him. In early 1993, Kenneth was placed in a foster home for several months at the request of the appellant because she was under stress and was worried she might hurt Kenneth. In July 1993, the appellant told a supervisor at the Y.M.C.A., where she had gone to escape abuse from Mr. Marquardt, that she had squeezed Kenneth’s leg and caused a bruise.
5On Saturday October 9, 1993, the appellant was home with Kenneth and Mr. Marquardt. Around 8:00 a.m., Mr. Marquardt left the house in response to a call from a former girlfriend who was about to give birth and wanted him to be with her. The appellant was alone with Kenneth thereafter. The appellant’s version of events leading to the death are described as follows in her counsel’s factum:
Around 4:00 p.m., the Appellant woke up and went to the bathroom. She heard Kenneth calling her. It was muffled but it sounded like “Mommy, Mommy”. She called back that she would be there soon and finished in the bathroom. When she went into the bedroom, Kenneth was rolled up in the bedding. His head was at the foot of the bed and all twisted up in the sheets down to his chest. He was tangled up and it was hard to get the sheets off him. The Appellant was panicking. Kenneth was saying “Mommy, Mommy” and she was saying “Mommy’s here, it’s ok, Mommy’s going to get you out.” Then he was just saying “Mom”; it was faint and at this point she realized that there was something seriously wrong. She finally untangled him from the bedding. In her affidavit, she describes the passage of time:
When the police later asked me how long this all took I said about 20 minutes; that is how long it seemed to me. For some reason, I noticed the clock in the bedroom said 4:33. I later came to know that the 911 call was made at 4:38 so my time estimate was off; I can only say it seemed like an eternity as I tried to extricate Kenneth from the sheets.
Kenneth was white and he did not seem to be breathing. She ran with him in her arms to the phone and called 911.
The Appellant tried to follow the 911 C.P.R. instructions but was unable to:
Q. Why not?
A. Because I could hardly breathe myself.
Q. What do you mean you could hardly breathe yourself?
A. I was crying a lot and really upset.
6Emergency workers arrived at the apartment at 4:42 p.m. within five minutes of the call. The appellant was visibly distraught. She directed them to Kenneth. He was lying motionless on a couch to which she had moved him. His face was a grey-ashen colour and he was not breathing. The appellant told the workers that he had a history of epilepsy. Efforts at resuscitation at the apartment failed and he was transported immediately to Oshawa General Hospital. He was later transferred to the Hospital for Sick Children. The emergency physician who saw Kenneth was not satisfied with the appellant’s explanation for the child’s condition and he asked that the Suspected Child Abuse and Neglect Unit become involved. Kenneth died three days later when he was removed from life-support. His liver, kidneys and heart valves were harvested for organ donation.
The evidence of Dr. Smith
The evidence of Dr. Smith
7Dr. Smith performed the autopsy. He testified that the absence of the harvested organs was a “minor inconvenience”. He testified that the cause of death was “asphyxia” which caused irreversible brain damage. He defined asphyxia as “a condition affecting the organs of the body or the body wherein there is impaired delivery or utilization of oxygen. An injury occurs because either there is inadequate supply of oxygen or the oxygen which is present cannot be properly used.”
8Dr. Smith relied upon scattered petechial haemorrhages (tiny red spots) over the surfaces of Kenneth’s heart, lungs and thymus as evidence of asphyxia. He also testified that he found microscopic haemorrhages in the small skeletal muscles of the neck, which he considered consistent with a non-accidental injury to the neck. He further testified that the child’s brain was extremely swollen, which was part of the asphyxia. He put these findings together to provide this opinion to the jury:
So what I’m left with in Kenneth is this: He has evidence of asphyxia. I have no natural disease that explains the asphyxia. I have some microscopic evidence of hemorrhage in his neck that would be consistent with neck injury, but I can’t say whether that neck injury was accidental or non-accidental. It would appear to be not a severe or prolonged neck injury if it was real such that we see the petechial changes in or around his eyes or in the region of his face.
So, what I’m saying is that he died of asphyxia. The asphyxia could be environmental, could be an environmental lack of oxygen, could be something like a plastic bag or a gentle suffocation. It could be a neck compression, I can’t rule that out, though I don’t have incontrovertible evidence of that. I have no evidence that he died of things like hotdogs, but then I wasn’t there, so I can’t make that statement. [Emphasis added.]
9Dr. Smith went on to testify that his findings were “consistent with” suffocation with a soft object, a pillow, a plastic bag or if someone held his nose and mouth closed and he was suffocated that way. He discounted seizure as a cause of death as he had no evidence “of that at all”. In particular, he testified that “you don’t have evidence of asphyxia” from sudden and unexpected death in epilepsy (SUDEP). However, he allowed that he was not an expert on this condition and the opinion of a pediatric neurologist would be better than his opinion on that issue.
10Evidence was led at trial that Kenneth had had seizures, and that he was on medication for epilepsy: dilantin. A blood test taken at the hospital indicated that the amount of dilantin in the child’s body was below therapeutic level. The evidence at trial respecting the seizures was inconsistent and two of the physicians testified that based on their review of the hospital records all but one of seven seizures suffered by Kenneth were associated with fever (febrile seizures). Febrile seizure in young children was described at trial as a fairly mild condition, unlike epileptic seizures. Dr. Logan, a pediatric neurologist, treated Kenneth following his admission to hospital on October 9, 1993. He testified that SUDEP was not applicable in Kenneth’s case.
The Appellant’s statements following the death
The Appellant’s statements following the death
11At trial, the Crown led evidence of the various statements the appellant made to emergency personnel, the police and hospital personnel. The statements were consistent and were to the effect that she found Kenneth struggling in his bedclothes and that it took her 10 to 20 minutes to extricate him by which time he was not breathing.
12The Crown also led evidence that two weeks after the death, the appellant was drinking with Mr. Marquardt and others. According to Mr. Marquardt and the appellant, during the evening, she screamed several times that she had forgotten how to do C.P.R. and had killed Kenneth. She asked to be taken to the cemetery where she kept shouting that she had killed Kenneth because she had forgotten how to do C.P.R. However, contrary to the evidence of the appellant and Mr. Marquardt, the two other persons present testified that the appellant looked them in the eye and stated that she had killed Kenneth in the sense of an intentional killing. They denied that she was simply expressing guilt over not being able to do C.P.R.
THE FRESH EVIDENCE
The Fresh Evidence
13In 2005, the Chief Coroner directed a review of cases in which Dr. Smith had performed an autopsy or provided an opinion. Professor Pekka Saukko of Finland was asked to review the appellant’s case. Professor Saukko provided an opinion and later testified at the Inquiry into Paediatric Forensic Pathology (the “Goudge Inquiry”). In Professor Saukko’s opinion there was not sufficient evidence for Dr. Smith to have made the diagnosis of asphyxia. In particular, that diagnosis could not be based only on petechial hemorrhages on the heart, lungs and thymus, which are non-specific. The cause of death should have been given as “unascertained”. The other reviewing pathologists agreed with Professor Saukko’s opinion.
14The appellant retained Dr. Simon Avis, a forensic pathologist, to provide an opinion. He agreed with Professor Saukko but, in addition, suggested that several possible causes of death could not be excluded, including SUDEP. The Crown retained Dr. Christopher Milroy, also a forensic pathologist, to provide an opinion. He also agreed with Professor Saukko that Dr. Smith had made significant mistakes and that the cause of death should have been described as unascertained. He also agreed that a seizure disorder could not be excluded and that Dr. Smith was wrong to exclude SUDEP on purely pathological grounds. At the suggestion of Dr. Milroy, the parties retained paediatric neurologists to provide opinions concerning SUDEP. While the Crown submits that portions of the opinions provided by these experts, Dr. Elizabeth Donner (retained by the defence) and Dr. Carter Snead (retained by the Crown) went beyond the proper scope of expert evidence, much of the opinions are admissible. Those opinions provide additional support for the possibility of SUDEP as a cause of death in Kenneth’s case. In particular, their analysis of the medical records supports the view that Kenneth had epilepsy and was not simply experiencing febrile seizures.
ANALYSIS
Admissibility of the Fresh Evidence
Analysis
15The evidence of Professor Saukko and Drs. Avis and Milroy is admissible as fresh evidence in this appeal. Their evidence meets the test for fresh evidence as set out in R. v. Palmer and Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 and Reference re: Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 (Ont. C.A.), and the test for expert evidence as laid down in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. The Crown accepts, and we agree, that this evidence is credible, reliable and could reasonably be expected to have affected the verdict.
16The fresh evidence shows that Dr. Smith made several significant errors that could have misled the jury and led to a miscarriage of justice. First and most importantly, the conclusion of a cause of death of asphyxia, based on the findings at autopsy such as petechial haemorrhages on the Kenneth’s organs and neck, was erroneous. The fresh evidence demonstrates that petechial haemorrhages are non-specific findings and are not diagnostic of intentional suffocation as was suggested by Dr. Smith in his evidence. The expert evidence demonstrates that the cause of death and manner of death, from a forensic pathologies perspective, are undetermined or unascertained.
17Second, Dr. Smith’s testimony, and particularly his use of the term “asphyxia”, was confusing and misleading. In this regard we note the comments made by Commissioner Goudge concerning asphyxia in Report of the Inquiry into Paediatric Forensic Pathology in Ontario, vol. 3 (Toronto: Queen’s Printer for Ontario, 2008), at pp. 408-409:
It is clear that a pathologist’s opinion about the cause of death, if it is not carefully expressed, can be a major source of misunderstanding. The best example that emerged from the Inquiry was the use of the term “asphyxia”. Dr. Smith opined that asphyxia was the cause of death for a number of the cases under review. Asphyxia, based on its Greek root, literally translates as “stopping of the pulse”. However, the evidence at this Inquiry demonstrated that the term has commonly been used to mean simply that the deceased stopped breathing or was deprived of oxygen. It has also been used frequently to denote mechanical asphyxia through the intervention of a third party. The latter meaning is radically different from the former, in that it generally implies non-accidental injury. One of the problems identified at the Inquiry was that Dr. Smith used the term “asphyxia” in inconsistent ways. At times he used it in its more inculpatory sense as indicating mechanical asphyxia through the intervention of a third party. At other times he used it in its more benign sense, although this distinction would not always be apparent to the police and others who received the opinions. The situation was compounded by Dr. Smith’s testimony. He sometimes explained what asphyxia meant in ways that were, at best, confusing and nearly incomprehensible. The varied meanings that can be given to the term asphyxia not only invite caution in its use but present a compelling argument to avoid its use altogether, if confusion and misunderstanding are to be avoided. [Emphasis added.]
18In his report, the Commissioner also referred to other troubling aspects of Dr. Smith’s testimony in the appellant’s case related to the cause of death (see vol. 1, at p. 188):
Dr. Smith also from time to time used language in his testimony that was loose and unscientific. Certain inappropriate expressions are found throughout his testimony. The language of “betting” is one of them. In Kenneth’s case, Dr. Smith testified that suffocation can occur without leaving any marks and that, if he were a “betting man”, he would say that suffocation was a better explanation for Kenneth’s death than manual or ligature strangulation.
19Third, the fresh evidence suggests that the possibility the death was due to natural causes, in particular, SUDEP may not have been fully appreciated at the time of the trial. Finally, it was an error for Dr. Smith to testify that the autopsy excluded SUDEP as a cause of death.
20We are also of the view that much of the evidence of Drs. Donner and Snead concerning SUDEP meets the test for fresh evidence. That evidence is helpful in understanding the likelihood that Kenneth had epilepsy and in understanding SUDEP. While SUDEP as a possible cause of death was raised at trial, the evidence of Drs. Donner and Snead provides additional support for the proposition that SUDEP could not be excluded as a cause of death. Their evidence, taken with the other expert evidence adduced on this appeal, could have left the jury with a reasonable doubt that the appellant caused the death of her child.
21We do, however, agree with Crown counsel that some parts of the evidence of Drs. Donner and Snead are not admissible, in particular, the opinion of both experts that SUDEP was likely the cause of death. In giving these opinions, these physicians went beyond their area of expertise.
The Order to be Made
The Order to be Made
22The appellant agrees with Crown counsel that the appropriate order in this case is a new trial rather than an acquittal. The fresh evidence completely undermines Dr. Smith’s evidence to the effect that Kenneth’s death was caused by asphyxia and his suggestion that the most likely mechanism was manual strangulation and suffocation. The pathological evidence now, at best, would classify the cause of death as unascertained. The evidence of the paediatric neurologists, together with a better understanding of Kenneth’s history, suggests that SUDEP cannot be excluded as the cause of death.
23However, as Crown counsel pointed out at the hearing of the appeal, there was other evidence in this case, including the statements made by the appellant before and after the death and her description of the events leading up to the death. Some parts of that description could be found to be inconsistent with SUDEP as a cause of death. That said, it would be open to the jury to accept the appellant’s explanations for her statements. And, the expert evidence could, as we have said, raise a reasonable doubt as to the cause of death. These are questions for a jury.
DISPOSITION
Disposition
24We conclude by returning to the order of the Supreme Court of Canada that remitted the case to this court. The Supreme Court asked this court to consider the fresh evidence and “whether the applicant’s conviction constitutes a miscarriage of justice.” It is manifestly in the interests of justice that the fresh evidence be admitted on this appeal since that evidence demonstrates that the appellant’s conviction constitutes a miscarriage of justice. As we said at the hearing of the appeal, it is tragic that it has taken so long to uncover the flawed pathological evidence that so clearly contributed to the appellant’s conviction in 1995.
25Accordingly, the fresh evidence, to the extent explained above, is admitted, the appeal is allowed, the conviction for murder set aside and a new trial order.
26Finally, we wish to express our thanks to counsel for Ms. Marquardt and the respondent Crown for their assistance in this extremely difficult and complex case.
Signed: “M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“David Watt J.A.”
RELEASED: “MR” April 8, 2011
