Court of Appeal for Ontario

CITATION: R. v. Brant, 2011 ONCA 362

DATE: 20110506

DOCKET: C49835

BEFORE: Rosenberg, Simmons and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Richard Brant

Appellant

COUNSEL:

James Lockyer, for the appellant

Alison Wheeler, for the respondent

Heard and released orally: May 4, 2011

On appeal from conviction entered by Justice Richard Byers of the Superior Court of Justice dated April 21, 1995.

ENDORSEMENT

[1] In 1995, Richard Brant, who was originally charged with manslaughter in relation to the death of his nine-week old son, pleaded guilty to aggravated assault. Although he had always maintained that he did not harm his son, an important consideration for the appellant choosing to plead guilty was the unequivocal opinion of Dr. Charles Smith that the infant had died from non-accidental head injury. In the fresh evidence Mr. Brant has explained why he pleaded guilty notwithstanding his belief that he was innocent. Moreover, there is some doubt that the facts agreed to at the time of the guilty plea could support the charge of aggravated assault and we note that the trial judge who accepted the plea indicated that it appeared to be the result of a compromise.

[2] The fresh evidence from the Crown and the defence experts gathered following the investigation into Dr. Smith’s cases cast considerable doubt on the validity of his opinion in this case. First, a genuine difference of opinion has emerged as to the weight to be attached to the existence of the so-called triad of subdural haemorrhage, cerebral edema and retinal haemorrhage. Secondly, it appears that Dr. Smith was unfairly critical of the work of the pathologist who performed the autopsy and considered that pneumonia may have played a material role in the death. The loss of important tissue sample should have had a significant impact on Dr. Smith’s diagnosis of non-accidental trauma. Thirdly, the fresh expert evidence now available offers two non culpable explanations for the findings of the autopsy, namely idiopathic cardiorespiratory arrest or a blood clot in the cerebral sinus.

[3] In short, the medical evidence is at best inconclusive and there is no circumstantial evidence to support a finding that Mr. Brant intentionally harmed his son, rather the circumstantial evidence suggests the contrary. Finally, Mr. Brant has explained his guilty plea. The conviction for aggravated assault was unreasonable. The fresh evidence establishes that a miscarriage of justice has occurred. It is in the interest of justice that the fresh evidence be admitted, the guilty plea set aside, the appeal from conviction allowed and an acquittal entered.

[4] Mr. Lockyer and Ms. Wheeler we wish to thank you again for your assistance in this tragic and difficult case.

“M. Rosenberg J.A.

“Janet Simmons J.A.

“R. A. Blair J.A.