COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simmons, 2012 ONCA 94

DATE: 20120213

DOCKET: M40773 (C32002)

Rosenberg and Hoy JJ.A. and Swinton J. (ad hoc)

BETWEEN

Her Majesty The Queen

Respondent

and

Roy Arnold Simmons

Applicant (Appellant)

Kristin Bailey, for the applicant

Jennifer Woollcombe, for the respondent

Heard: January 17, 2012

An application to reopen the appeal against conviction of manslaughter entered by Justice Robert MacKinnon of the Superior Court of Justice on April 12, 1999.

By The Court:

[1] The applicant, Roy Simmons, applies to re-open his appeal from conviction for manslaughter. The applicant abandoned his conviction appeal in March 2000. He proceeded with his sentence appeal and his sentence was reduced from three years imprisonment to 18 months. For the following reasons, the application is dismissed.

[2] The victim of the offence was the applicant’s three month old grandson. At about 7:00 a.m. on May 1, 1994, the applicant took over care of the child, while the child’s mother, the applicant’s daughter, went back to sleep. The applicant awoke his daughter some time later to say that the child was not breathing. She blew into his face to attempt to revive him. According to the mother, the applicant administered some blows to the child’s back and attempted C.P.R. The child was taken by ambulance to the local hospital and then to the Hospital for Sick Children. The child had no signs of brain function. A CAT scan and radiological examination showed that the brain was grossly swollen and there was a significant skull fracture.

[3] The autopsy was conducted by Dr. Charles Smith. He found scalp bruising on the left side corresponding to the skull fracture. There was subdural and subarachnoid hemorrhages, cerebral edema (swelling of the brain), retinal hemorrhage in the right eye and hemorrhage to both optic nerves.

[4] The applicant gave various accounts of the events after he took over care of the child. He told Dr. Katy Driver, a paediatrician at The Hospital for Sick Children, that he fed the child and was attempting to burp him when the child went limp. He then put the child on the kitchen table to start C.P.R. He held the child’s nose and breathed into his mouth. The applicant told the critical care chief that while he was feeding the child, the child went limp and stopped breathing. He made some efforts to start his breathing, including holding him upside down and then placed him on the kitchen table to try to perform some type of resuscitation. He blew into the child’s mouth and pressed on his chest cavity.

[5] The applicant was tried and convicted twice for the offence of manslaughter. His appeal from conviction after the first trial was allowed and a new trial ordered. He was tried again and convicted. It is the appeal from that second conviction that the applicant seeks to re-open.

[6] Dr. Smith testified at both trials that the child’s injuries were the result of blunt force impact. There were also some findings that may have been associated with shaking but he could not say with certainty that the child was shaken. Dr. Driver, the paediatrician at The Hospital for Sick Children, testified that the autopsy findings were indicative of Shaken Baby Syndrome. She did not believe that a blow to the head alone would account for all of the child’s injuries.

[7] The theory of the defence was accident. Cross-examination of the Crown experts suggested that it was the theory of the defence that the child’s head accidentally came in contact with the kitchen table while the applicant was holding him upside down by the feet and hitting his back to try and revive him. However, the applicant did not testify and there was no admissible evidence that this was the manner in which the child was injured. This theory was inconsistent with the accounts the applicant gave to the physicians treating the child.

[8] The prosecution also adduced evidence from the applicant’s upstairs neighbours. They testified that the victim was a fussy, colicky baby. The applicant frequently demonstrated his impatience with the child by yelling. On one occasion one of the neighbours saw the applicant pat the child in a manner that he thought was too strong while the child was held upside down.

[9] The applicant has filed an affidavit in support of his application to re-open his appeal. In the affidavit he states that he filed an inmate appeal from conviction on April 22, 1999 and from sentence on May 11, 1999. He states that he was brought to court for his inmate appeal on March 20, 2000. The lawyer who acted for him on his first appeal told him that if he abandoned his conviction appeal he would argue his sentence appeal that day. He was anxious to proceed with his sentence appeal since he had already spent over five years in custody and wanted to be released and get on with his life. He therefore abandoned the conviction appeal and proceeded with the sentence appeal.

[10] The applicant does not provide an explanation in his affidavit as to what he did after he took over care of the child on the morning of May 1, 1994.

[11] In his affidavit, the applicant states that despite abandoning his appeal from conviction he has always maintained his innocence. He explains his failure to testify in this way:

While I always wished to tell the jury my story, a large part of my decision not to testify was because of the evidence of Dr. Charles Smith and Dr. Katy Driver regarding Shaken Baby Syndrome.

[12] The applicant states that he decided to try to re-open his appeal as a result of The Inquiry into Pediatric Forensic Pathology in Ontario (The Goudge Inquiry).

[13] The applicant relies on two expert reports. A very brief report from Dr. Saukko, a professor of forensic medicine, states that the evidence of Dr. Smith was not reasonable and balanced and that the question of whether the death was accidental or non-accidental could not be determined on the medical evidence alone. The death should have been classified as undetermined.

[14] Dr. Avis, a forensic pathologist, similarly states that it is not possible to determine the manner of death and it should be described as undetermined. He states that there is no evidence to support Dr. Smith’s testimony that he suspected a shaking injury. Dr. Avis also says this in his report:

I have not been provided an explanation as to how the injuries to [T.W.] may have occurred. A review of the material provided suggests that the injuries occurred as a result of Mr. Simmons holding [T.] upside down by the ankles while attempted to dislodge obstructing material from the airways by applying blows to [T.’s] back. Presumably, during this effort a blow was accidentally delivered to the head resulting in forward movement of the head and subsequent impact with a table. I do have considerable difficulty with such an explanation. [Emphasis added.]

[15] The parties agree that this court has jurisdiction to re-open an appeal that, as here, was abandoned and not dismissed on its merits. They also agree on the test for re-opening, namely whether it is in the interests of justice to re-open. The applicant’s case to re-open this appeal turns on the proposition that the better understanding of Shaken Baby Syndrome as a result of the Goudge Inquiry suggests that his conviction may have been a miscarriage of justice.

[16] In our view, it is not in the interests of justice to re-open the appeal. Several factors lead to that conclusion. The applicant has not satisfactorily explained the original decision to abandon the appeal. The objective evidence does not support the explanation that the applicant abandoned the conviction appeal so that his sentence appeal could proceed on March 20, 2000. The materials to argue both conviction and sentence appeal were available on March 20 and the appeals could have been argued at that time, albeit as an inmate appeal. That said, we do not place much emphasis on this factor. We would be reluctant to allow an abandoned appeal to stand if the result was a wrongful conviction.

[17] More importantly, the applicant has not established that his case is a possible wrongful conviction. This case did not turn on Shaken Baby Syndrome, nor did it turn on the kind of evidence from Dr. Smith that was so heavily criticized in the Goudge Inquiry. Shaken Baby Syndrome is said to be characterized by the triad of symptoms: hypoxicischemic encephalopathy, subdural hemorrhage and retinal hemorrhage. The theory behind the syndrome is that the infant has been shaken to death causing this triad of injuries. This case is different. Here there was a significant skull fracture that could not have been caused simply by shaking. There was other circumstantial evidence suggesting that the infant was intentionally assaulted. The applicant had given different accounts of his actions with the child, none of which could account for an accidental blow to the head. He did not testify at trial and has still not provided an innocent explanation that would account for the skull fracture. At his trials, there was no burden on the applicant to disprove his guilt. However, to re-open his appeal he has the burden of at least establishing the possibility of a miscarriage of justice. His affidavit and the expert reports do not raise that possibility. Especially in light of the report from Dr. Avis, the applicant had to know that it was important that he provide some information to explain what happened.

[18] The issue at the applicant’s second trial was whether the injuries were caused by accident in the course of resuscitative efforts or intentionally inflicted. The defence position was clearly placed before the jury and in a manner favourable to the defence. For example, in the recharge the trial judge told the jury the following:

Doctor Driver gave evidence, of course. And, in reviewing her evidence earlier today, I told you that defence counsel asked Doctor Driver to assume on a hypothetical basis that a misdirected blow at the baby could cause the baby’s head to impact the table and Doctor Driver was asked to make the assumption that could cause the fracture and the right-side bruising. I told you that you would have to consider whether this underlying assumption was proven by circumstantial evidence. That was an incorrect instruction. What you will have to consider, is whether the underlying assumption is proven or, you are left in a reasonable doubt about it by circumstantial evidence of same.

[19] In conclusion, this case did not turn on Shaken Baby Syndrome but on the cumulative circumstantial evidence including the unexplained skull fracture. This was the applicant’s opportunity to provide that explanation. He did not.

[20] Accordingly, the application to re-open the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“Alexander Hoy J.A.”

“K. Swinton J. (ad hoc)

RELEASED: FEBRUARY 13, 2012